author: Crouch, J. Lehman, J.

text:
    Village of Lynbrook, Respondent, v. Carl Otto et al., Appellants.
    (Argued January 4, 1935;
    decided February 26, 1935.)

      Theodore N. Ripsom and Eugene R. Hurley for appellants.
    The only authority for village assessments against person or property is the Village Law (Cons. Laws, ch. 64). No power is granted by this law to assess any person for taxes because of his ownership of, or interest in, real estate. (Hilton v. Fonda, 86 N. Y. 339; City of New York v. McLean, 170 N. Y. 374; Queens Co. Water Co. v. Monroe, 83 App. Div. 105; Stebbins v. Kay, 123 N. Y. 31; City of Rochester v. Bloss, 185 N. Y. 42.) The provisions of section 71 of the Tax Law (Cons. Laws, ch. 60) cannot be transferred by implication to the Village Law. (Stebbins v. Kay, 123 N. Y. 31; People v. Purdy, 144 App. Div. 361; 203 N. Y. 555; Smith v. Russell, 172 App. Div. 793; Connolly v. Union Sewer Pipe Co., 184 U. S. 540; Matter of City of New York, 190 N. Y. 350.)

      Arden H. Rathkopf and Raphael W. Alpher for respondent.
    Section 126 of the Village Law as amended gives the plaintiff the right to bring the action. (Village of Charlotte v. Keon, 207 N. Y. 346; Queens County Water Co. v. Monroe, 83 App. Div. 105; McClure v. Niagara County, 50 Barb. 594; Oldfield v. N. Y. R. R. Co., 14 N. Y. 310; Juliand v. Rathbone, 39 N. Y. 369; Tillotson v. Wolcott, 48 N. Y. 188; Foote v. People, 56 N. Y. 321; Butterfield v. Rudde, 58 N. Y. 489; Farmers Bank of Fayetteville v. Hale, 59 N. Y. 53; Matter of Rochester, 66 N. Y. 413; Matter of McMahon, 102 N. Y. 176; Lamport v. Smedley, 213 N. Y. 282.) The theory of the present Tax Law is based on the principle of personal liability for real property taxes. (Litchfield v. Vernon, 41 N. Y. 123.)
   Crouch, J.

Section 126 of the Village Law (Cons. Laws, ch. 64) provides that an action may be maintained, as upon contract, by a village to recover the amount of an unpaid tax. This action was commenced under the authority of that section to recover from the defendants personally the amount of unpaid taxes assessed against real property owned by them. The defendants moved to dismiss the complaint for insufficiency. The motion was denied. The Appellate Division affirmed the order of denial by a divided court, and certified to this court the question whether the motion should have been granted. The answer depends solely upon whether there is any personal liability imposed by statute for taxes upon resident, owners of property within a village after due assessment and levy.

Prior to 1911 it had been the long-settled policy of this State to make the resident owner of land, as well as the land itself, liable for taxes assessed upon it. While it was the land itself which was taxable, the tax was assessed against the resident owner or occupant; and it was that assessment which created not only a hen upon the property but also a personal liability against the person assessed. “ * * * the ultimate tax levied by reason of the assessment is a charge against the person assessed, and is to be collected from his personal estate; * * *. Hence it is, that the action of the assessors in assessing lands to a person initiates a charge upon him personally.” (Hilton v. Fonda, 86 N..Y. 339, 346.)

From the time of the Revised Statutes (1 R. S. p. 390, § 9) to the time of the Consolidated Laws (5 Cons. Laws [1909] p. 4034, § 21) the assessors had been required to prepare an assessment roll containing separate columns, in the first of which were the names of all taxable persons in the tax district; in the second the quantity of land to be taxed to each person, and in the third the full value of such land. The roll was divided into several parts, one of which, known as the resident part, carried all assessments against owners or occupants (except corporate owners), and another, known as the non-resident part, carried the land of non-residents. Assessments against the owner or occupant in the resident part of the roll constituted a personal liability against the person assessed, as well as a lien upon the property. Assessments of property in the non-resident part of the roll constituted a hen upon the land, but no personal liability against the owner.

The administrative difficulties under this system became so serious that the Board of Tax Commissioners in their annual report for 1910 made the following recommendation to the Legislature: “ All assessments of real property should be made directly against the property itself, with sufficient designation or description to identify it, without any attempt, as respects the form of assessment, to create a personal Lability against the owner or occupant for the payment of taxes levied thereon, and the present distinctions as to the forms of assessments should be abolished. The name of the owner, or supposed owner, should be carried upon the roL in connection with the assessment, simply as an additional means of identifying the property and as an aid in reference. If it is desirable to retain the features of the present law in respect to the personal LabiLty of the owner for the payment of taxes, it should be created under a general provision of the statute in those cases where the owner is a resident of the State, or at least a resident of the tax district where the real property is situated, and providing a remedy for its enforcement, which LabiLty shaH be made to depend solely upon the fact of residence and ownership, and not upon the form of assessment ” (p. 21).

Accordingly there was enacted chapter 315 of the Laws of 1911 which amended various provisions of the Tax Law (Laws of 1909, eh. 62; Cons. Laws, eh. 60). Section 21, relating to the preparation of the assessment roL, was amended so as to provide for a roL to consist of three parts. Part 1 was to contain the assessment of real property exclusive of special franchises; it was to consist of seven columns; in the first column Was to be set down “ the name of the owner or the last known owner or reputed owner of each parcel or portion of real property separately assessed. Such name shaU be regarded as an aid to identify such parcel or portion. A mistake in the name of the owner, or the last known owner, or reputed owner, shall not affect the validity of the assessment against the parcel or portion.” In the second column was to be given a description of such parcel or portion sufficiently accurate to identify the same. In the third column was to appear a statement of the approximate quantity of land in such parcel or portion, and in the fourth column its full value. Section 63 was amended so as to provide, among other things, that “ The entry of the name of the owner, last known owner or reputed owner of a separate parcel or portion of real property shall not be regarded as part of such assessment but merely as an aid to identify such parcel upon the roll.”

If that were all, it could be argued that no element of personal liability for the payment of real property taxes survived. But that was not all. It seems evident that the Legislature did desire “ to retain the features of. the present law in respect to the personal liability of the owner for the payment of taxes,” because it followed the suggestion of the Board of Tax Commissioners by including in section 63 the following provision: “ If the owner of such parcel or portion is a resident of the tax district in which such parcel or portion is assessed, and his name is correctly entered on the' roll, he shall be personally liable for the tax assessed against such parcel or portion of real property.”

Moreover, those sections of the Tax Law relating to distress and sale (§ 71) and to proceeding supplementary to execution as upon a judgment docketed (§ 299), which had always been the remedies for the enforcement of personal liability, were left unchanged.

By chapter 277 of the Laws of 1914, section 21 of the Tax Law, as amended in 1911, was repealed and a new section was inserted in the place thereof, which provided for “An assessment roll or rolls, the form of which shall be prescribed or approved by the state board of tax commissioners, so classified and arranged with respect to number, of parts and number of columns in each part and with such entries and descriptions as shall be sufficient to identify each separately assessed parcel or portion of real estate with the approximate quantity of the square feet, square rods or acres contained in' such parcel or portion or a statement of the linear dimensions thereof.” It was also provided that “ The state board of tax commissioners shall adopt regulations for the preparation of the assessment roll and shall advise with and instruct boards of assessors and other officers as to their duties in respect thereto.” The genesis of the new section is perhaps to be found in the report of the Board of Tax Commissioners for 1913, which recommended to the Legislature, among other changes which should be made, “ authority in the Board to prescribe the form of assessment-roll and such other blanks as are used by the assessors in towns and villages, and in cities where the charter does not specifically govern” (p. 23).

We turn now from the provisions of the Tax Law which apply generally to the assessment and collection of taxes in towns, to the provisions of the Village Law relating to the same subjects. The original Village Law was chapter 21 of the “ General Laws,” being chapter 414 of the Laws of 1897. Section 104 thereof directed that the assessors should prepare an assessment roll of the persons and property taxable within the village in the same manner and form as was required by law for the preparation of a town assessment roll. Section 126 provided that an action might be maintained as upon contract by the village to recover the amount of an unpaid tax. The judgment, when docketed, should be a hen upon the real property of the defendant. Supplementary proceedings in accordance with the provisions of the Tax Law might also be taken. Those provisions have been continued and are to be found in the same numbered sections in the existing Village Law (Laws of 1909, chap. 64). By virtue thereof there can be no doubt that down to the enactment of new section 21 of the Tax Law by chapter 277 of the Laws of 1914, a village could maintain an action under section 126.

The only serious question in the case is whether the effect of new section 21 of the Tax Law was to do away with all personal liability for unpaid taxes, and thus to leave in suspension the various remedies for the enforcement of personal liability. The argument of the appellant on this point is, in substance, that the general personal liability provision in the Tax Law (formerly § 63, now § 71) is operative only where the name of a resident owner is correctly entered on the assessment roll; that under the provisions of new section 21 of the Tax Law, there is no mandate to the Board of Tax Commissioners to include in the form of assessment roll the names of owners of real property, and hence that the incidence of personal liability on a taxable class of persons is left to the whim or caprice of an administrative board. The construction of new section 21 must rest not alone upon its literal language, but upon the legislative intent in its enactment to be derived from a consideration of the history of the section, and of its relation to many other sections in the general tax laws dealing with related matters. The genesis of the section was referred to above. Viewed in that light, no purpose to change the contents as distinguished from the form of the assessment roll is apparent. The object sought was to secure uniformity and clarity of form throughout the State. In the absence of direct words of authority, it is not to be supposed that the Board of Tax Commissioners was endowed with power to change what had been an essential part of the contents of an assessment roll for a century. That view is strengthened by the fact that the personal liability provision and the several remedial provisions for its enforcement were left unchanged. Not only were they then left unchanged, but during the years since 1914 one finds various acts amending all of those provisions, indicating clearly the legislative view that they were alive and operative. Finally, since section 21 itself grants power to the Board of Tax Commissioners to adopt regulations for the preparation of assessment rolls, and to advise and instruct assessors, we may perhaps refer to such regulations and instructions to ascertain the practical construction which has been given to the section. So doing, one finds that the historic contents of an assessment roll have been preserved, and that the first column in the part devoted to real property contains, as it always has contained, the name of the owner.

We think no power or authority was conferred upon the Board of Tax Commissioners by new section 21, as enacted in 1914, to omit from any form of assessment roll prescribed or approved by it, any element essential to the continued existence of a personal liability for unpaid taxes and the remedies for its enforcement. Any other construction would render nugatory many subsequent acts of the Legislature. We may not lightly impute futility to that body. Moreover, such construction would involve recognition of a fundamental change in long-established policy, with all the evidence pointing the 'other way. If, in truth, that policy has changed, it remains for the Legislature to embody it in clear and appropriate legislation.

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

Lehman, J.

(dissenting). Perhaps, in the language of the Tax Law and the Village Law read in the light of their history, a legislative intent or policy may be found that an assessment upon taxable land, when made against a resident owner, should create not only a lien upon the land but a personal liability against the person assessed. Such intent is not enough. In order to give it vitality, the Legislature must provide that assessments shall be so made in order that all resident owners shall be under the same burden. The Legislature cannot delegate to local officers the determination of whether some resident owners, all resident owners, or no resident owners shall rest under a personal liability for the payment of taxes upon that land, nor can the Legislature give unrestricted discretion to the Board of Tax Commissioners to determine whether or not assessment shall be made against resident owners. That is a matter of general legislative policy, and determination of a general legislative policy can, of course, not be delegated to administrative officers.

The decisive question upon this appeal is whether the Legislature has imposed upon local tax assessors a mandate to assess taxes upon land against the resident owner of such land. It is doubtful whether the Legislature imposed such a mandate under the Tax Law, as amended by chapter 315 of the Laws of 1911. If it did, it seems to me quite clear that it removed the mandate by chapter 277 of the Laws of 1914.

Even under the earlier amendment, though there was provision for the insertion in a separate column ofthe name of the owner or the last known owner or reputed owner of each parcel or portion of real property separately assessed (§ 21), the Legislature expressly stated that the entry of the name of the owner, last known owner or reputed owner of a separate parcel or portion of real property shall not be regarded as part of such assessment, but merely as an aid to identify such parcel upon the roll ” (§63). That seems a tenuous basis for an implication that the assessors were under a positive duty to ascertain, if they could, the name of each resident owner and to enter that name correctly on the assessment roll so that each resident owner equally might be personally hable for the tax.

Under the amendment of 1914, even that tenuous basis disappears. No longer is there provision by the Legislature for a column in which the name of the owner or the last known owner or even the “ reputed owner ” of a parcel of land might be placed as an “ aid to identify such parcel.” On the contrary, then the Legislature expressly left prescription of the " form ” of the assessment roll or rolls to the state board of tax commissioners, with the direction only that the entries or descriptions * * * shall be sufficient to identify each separately assessed parcel or portion of real estate with the approximate quantity of the square feet, square rods or acres contained in such parcel or portion or a statement of the linear dimensions thereof.”

Of course it is apparent that the purpose of this change was confined to matters of form, and that the form of tax rolls prescribed by the State Board of Tax Commissioners must still permit the inclusion of those matters in the assessment roll which the Legislature expressly or impliedly directed should be included. Certainly after the 1911 amendment the inclusion of the name of the owner, last known owner or reputed ” owner may hardly be regarded as an essential part of the assessment roll when the Legislature had expressly provided that the entry of such name shallnot be regarded as part of such assessment, but merely as an aid to identify such parcel upon the roll.” Certainly the Legislature must have intended to give to the State Board of Tax Commissioners the power to eliminate the entry of such name even as an aid to identify a parcel of land upon the assessment roll when it removed from the statute reference to names as an aid to identify property, and confided to the State Board of Tax Commissioners the power to provide for “ such entries and descriptions as shall be sufficient to identify ” the parcel assessed. The fact that the State Board of Tax Commissioners did in fact retain a column for the name of the owner has, I think, no significance. It can hardly be said to be inconsistent with a construction of the statute that the State Board had discretion to retain or discard this form of identification.

Thus the judgment of the courts below can, I think, be sustained only if we find in the provisions by the Legislature for personal liability where the name of a resident owner is correctly entered, an implied direction that such names shall if possible be correctly entered; but that implication is negatived by the fact that in 1911 the Legislature expressly provided that the entry of the name of the owner, the last known owner or the reputed owner shall not be part of the assessment, and indeed the name of the last known ” owner or the “ reputed ” owner could serve no purpose except as an aid to identify the property taxed. It thus becomes evident that the purpose of the Legislature in retaining the provision for personal liability was merely to permit its administrative officers, if they saw fit, and when they saw fit, to impose a personal liability by the entry of the correct name of a resident owner, though the statute did not require such entry. That the Legislature could not do.

Until the recent depression there was little, if any, need for resort to personal liability. Today, we are told, taxable property cannot be sold for the amount of the tax lien. If a landowner is to be subjected to a personal liability for taxes beyond the price for which the land itself can be sold, the Legislature must say so directly and not leave to administrative officers the determination of when and whether such a Lability should be created.

Judgment should be reversed, with costs.

Crane, Ch. J., O’Brien, Hubbs, Lotjghran and Finch, JJ., concur with Crouch, J.; Lehman, J., dissents in opinion.

Order affirmed, etc.


source: Caselaw Access Project

author: Lehman, J.

license: Public Domain

text:
    M & T Trust Company, Appellant and Respondent, v. The City of Buffalo, Respondent and Appellant.

      (Argued January 3, 1935;
    decided February 26, 1935.)

      H. W. Huntington for plaintiff, appellant and respondent.
    The statute under which the taxes were levied and collected has been declared illegal and void. (Public Nat. Bank v. Keating, 284 U. S. 587; Peoples Nat. Bank & Trust Co. v. County of Westchester, 261 N. Y. 342.) There was no voluntary payment of any part of the tax by the stockholders of the bank. (People ex rel. First Nat. Bank v. Schadt, 237 App. Div. 233; Matter of Edison El. Ill. Co., 22 App. Div. 371; 155 N. Y. 699; Second Nat. Bank v. City of New York, 213 N. Y. 457; Hirshfeld v. Fitzgerald, 157 N. Y. 166; People ex rel. American Ex. Nat. Bank v. Purdy, 196 N. Y. 270.)

      Gregory U. Hannon, Corporation Counsel (Jeremiah J. Hurley of counsel), for defendant, respondent and appellant.
    The taxes were not paid under duress, coercion or penalty of statutes. (Liberty Bank v. City of Buffalo, 241 App. Div. 323; 265 N. Y. 543.) Payment of the tax as adjusted by the plaintiff was voluntary and not under protest or duress. (Tripler v. New York, 125 N. Y. 617; Phelps v. Mayor, 112 N. Y. 216; Bruecher v. Village of Port Chester, 101 N. Y. 240; Vanderbeck v. Rochester, 122 N. Y. 285; Chesebrough v. United States, 192 U. S. 253; Union Pacific R. R. Co. v. Commissioners, 98 U. S. 541; Security Nat. Bank v. Young, 55 Fed. Rep. [2d] 616; 286 U. S. 551; Gaar, Scott & Co. v. Shannon, 223 U. S. 468; Illinois Merchants Trust Co. v. Harvey, 335 Ill. 28; Adrico Realty Co. v. City of New York, 250 N. Y. 29; Little v. Bowers, 134 U. S. 547; Newburgh Sav. Bank v. Town of Woodbury, 173 N. Y. 55; Matter of McCue v. Board of Supervisors, 162 N. Y. 235.) The third cause of action was compromised, settled, adjusted and adjudicated in a certiorari proceeding to review the assessment therein alleged, and the tax sought to be recovered back in this action was paid as an accord and satisfaction of a voluntary agreement. (Simons v. American Legion of Honor, 178 N. Y. 263; Matter of Seybel, 120 App. Div. 291; 194 N. Y. 589; Moers v. Moers, 229 N. Y. 294; People ex rel. O’Mara v. Bd. of Supervisors, 63 Hun, 625; Morehouse v. Second Nat. Bank, 98 N. Y. 503; Brassell v. Electric Welding Co., 239 N. Y. 78; Holland v. Atlantic Stevedoring Co., 239 N. Y. 605; Logan v. Davidson, 18 App. Div. 353; 162 N. Y. 624; Union Pacific R. R. Co. v. Commissioners,
      98 U. S. 541; United States v. California & Oregon Land Co., 192 U. S. 355; Luce v. N. Y. C. & St. L. R. R. Co., 213 App. Div. 374; 242 N. Y. 519; Vanderbeck v. Rochester, 122 N. Y. 285; Gaar, Scott & Co. v. Shannon, 223 U. S. 468.)
   Lehman, J.

In November, 1925, the Manufacturers and Traders National Bank of Buffalo, a National bank, was converted into a State bank, and the Manufacturers and Traders Bank of Buffalo was incorporated under the Laws of the State of New York, and acquired by assignment all of the property of the Manufacturers and Traders National Bank of Buffalo. On December 15th, 1925, the Manufacturers and Traders Bank of Buffalo was merged into the Fidelity Trust Company of Buffalo, and the name of the Fidelity Trust Company was changed to Manufacturers and Traders Trust Company. Thereafter the Manufacturers and Traders Trust Company received notice that the tax assessors of the defendant city of Buffalo attempted to assess for purposes of taxation all the issued and outstanding capital stock of the Manufacturers and Traders National Bank of Buffalo, pursuant to the Tax Law of the State of New York (Cons. Laws, ch. 60, as added by L. 1916, ch. 323, and amd. by L. 1917, ch. 153, and L. 1923, ch. 897). The assessment was in the amount of $43,042.40. In January, 1930, the plaintiff, as the successor of the Manufacturers and Traders National' Bank of Buffalo, paid to the Treasurer of the city of Buffalo two-thirds of said tax, with interest.

The plaintiff alleges in its third cause of action that the Tax Law, in so far as it purported to permit the assessment of the stock of National banks, was void, and the assessments attempted to be made thereunder were illegal. It further alleges that the payment of a portion of the tax was made under duress, and it seeks a recovery of the moneys so paid. The defendant before answering the complaint moved under rule 106 of the Rules of Civil Practice for judgment dismissing the third cause of action on the ground that it does not state facts sufficient to constitute a cause of action, and under rule 107 for judgment dismissing the complaint on the further ground that the said cause of action has “ been compromised, settled, adjusted and adjudicated.”

The allegations of the complaint are sufficient to show payment of a part of the tax which has been illegally assessed upon the stock of a National bank under a void statute. (Keating v. Public Nat. Bank, 284 U. S. 587.) The plaintiff cannot recover the payment so made if such payment was made voluntarily, though under a mistake of law. The question here presented is whether the payment was made under duress or was made voluntarily, and as a result of a compromise or settlement.

Payment of taxes illegally assessed under void statutes, when made to avoid a penalty or to release personal property from a hen, may at times be regarded as involuntary, and the result of duress. (Adrico Realty Corp. v. City of New York, 250 N. Y. 29.) In the case now under consideration the statute purported to place upon the National bank the duty of paying the tax assessed, and if it failed to perform such duty, the bank incurred a penalty of $100 a day. If it paid the tax it acquired a lien for the sum paid upon the stock belonging to the stockholders. Here the plaintiff did not pay any part of the tax for five years after it received notice of the tax; then it paid only two-thirds of the tax, and the affidavits show that such payment was the result of a compromise. The question would be different if the plaintiff had promptly paid the tax assessment in full rather than take the risk of being compelled to pay accumulated penalties if the tax were thereafter declared valid. (Cf. Ætna Ins. Co. v. Mayor, 153 N. Y. 330; People ex rel. American Exchange Nat. Bank v. Purdy, 196 N. Y. 270.) We do not pass upon such question. Here the allegations of the complaint negative any possible inference of duress which might otherwise be drawn from payment of an illegal tax assessment made under a void statute which purports to impose a heavy penalty in case of non-payment. For five years the risk that it might eventually be compelled to pay the tax with accumulated penalties was insufficient to coerce the plaintiff to make payment. Then it succumbed, not to fear alone, but to the enticement of a compromise. True, the complaint does not in express terms state that payment was the result of a compromise, but if there be doubt whether such an inference can be drawn from the allegations of the complaint, that doubt is removed by the undisputed allegations contained in the affidavits of the defendant submitted upon its motion made under rule 107.

These affidavits show that the bank promptly began proceedings to review the assessment, claiming that it was illegal and void. True, the ground urged was rather that the assessors had acted erroneously and under a misconstruction of the statute than that the statute itself was invalid. None the less the plaintiff made no payment pending the decision upon its application for review. Then the parties entered into agreement to settle. The plaintiff could not make any protest against payment which was the result of a voluntary agreement. Certainly at that time it concealed any intention it might have had to reclaim the amount paid under voluntary agreement if thereafter the taxing statute should be held void. The city gave up any right it might otherwise have had to claim the tax in full with accumulated penalties. The plaintiff in return was willing to pay the stipulated portion of the tax. The courts will not disregard an agreement of parties voluntarily arrived at and fully executed. Especially is that true where the stipulation, as in this case, requires the determination of a court proceeding then pending for the review of a tax assessment which is claimed to be invalid.

The plaintiff seeks to escape the consequences of its voluntary payment of part of the tax by' the claim that it is suing to recover a tax paid in behalf of its shareholders, though such shareholders had never given it any authority to pay the tax or to compromise the amount of the tax. If in truth the bank was, at all times, acting in behalf of its shareholders, or if it were attempting to enforce a lien upon the stock of its shareholders, that contention would not be without substance. (People ex rel. American Exchange Nat. Bank v. Purdy, supra.) Here, however, the bank was acting for itself in making the payment, and it is acting for itself in seeking to recover the payment made. The statute does not purport to give to the bank a hen for a payment which is the result of a compromise. If the bank voluntarily agreed to a settlement which it was not authorized to enter into in behalf of its shareholders, no right to recover payments voluntarily made by the bank can be predicated upon a claim that it was not authorized to make the settlement. Indeed, in the proceedings to review the tax assessment, claim of illegality was based upon the ground that even at the time when the plaintiff received notice of the tax assessment, the existence of the National bank had been terminated, and no stock or shareholders survived.

The appeal by the plaintiff has been withdrawn, without costs, by permission of the court.

On the appeal by the defendant the order of the Appellate Division should be reversed and that of the Special Term affirmed, without costs; the second question certified should be answered in the affirmative and the first question not answered.

Crane, Ch. J., O’Brien, Hubbs, Crouch, Loughran and Finch, JJ., concur.

Ordered accordingly.


text:
    Ausable Chasm Company, Appellant and Respondent, v. The State of New York, Respondent and Appellant. Chemical Bank and Trust Company, as Executor of Margaret J. Rowan, Deceased, Appellant and Respondent, v. The State of New York, Respondent and Appellant.
    (Claim No. 23497.)
    (Claim No. 23502.)

      (Submitted January 22, 1935;
    decided February 26, 1935.)

      Thomas F. Conway, Thomas E. O’Brien and William F. Pritchard for claimants, appellants and respondents.
    The statute under consideration does not offend section 9 of article VIII of the State Constitution, prohibiting the State from paying money “ in aid of any association, corporation or private undertaking.” The State had the right to recognize its moral obligation to the claimants to recompense them for their outlay in the construction of the bridge of which the public at large has had the benefit, and without which the public at large would have lost the benefit of the State road north and south of the bridge. (Lorillard v. Town of Monroe, 11 N. Y. 392; People v. Rensselaer & Saratoga R. R. Co., 15 Wend. 113; Markey v. County of Queens, 154 N. Y. 675; County of Albany v. Hooker, 204 N. Y. 1; People v. Draper, 15 N. Y. 532; Transportation Co. v. Chicago, 99 U. S. 635; Matter of McAneny, 232 N. Y. 377; Hunter v. City of Pittsburgh, 207 U. S. 161; East Hartford v. Hartford Bridge Co., 10 How. [U. S.] 511; People v. Tweed, 63 N. Y. 202; People ex rel. McLean v. Flagg, 46 N. Y. 401; People ex rel. Kemmler v. Durston, 119 N. Y. 569; Matter of N. Y. Elev. R. R. Co., 70 N. Y. 327; People ex rel. Simon v. Bradley, 207 N. Y. 592; Matter of McAneny, 232 N. Y. 377; People v. Budd, 117 N. Y. 1; Waterloo Woolen Mfg. Co. v. Shanahan, 128 N. Y. 3A5; Williamsburgh Sav. Bank v. State, 243 N. Y. 231.) Even if the claimant, Ausable Chasm Company, derived any benefit or advantage from the location of the road and the construction of the bridge, that fact cannot be even considered in determining either the constitutionality of the act or the moral obligation that underlies it. (Waterloo Woolen Mfg. Co. v. Shanahan, 128 N. Y. 345; Oswego & Syracuse R. R. Co. v. State, 226 N. Y. 351; Matter of O’Berry, 179 N. Y. 285.)

      John J. Bennett, Jr., Attorney-General (Henry Epstein, Leon M. Layden and John L. Campbell of counsel), for defendant, respondent and appellant.
    The State had neither the power nor duty to pay these claims until the Court of Claims passed upon them under the authority of chapter 368 of the Laws of 1933. (O’Hara v. State, 112 N. Y. 146; Sooysmiih & Co. v. American Surety Co., 28 App. Div. 346; Randall v. Grant, 59 App. Div. 485.) Chapter 368 of the Laws of 1933 is in violation of the provisions of the Constitution of the State of New York and is void and provides no proper basis for the recovery of damages under these claims. (Farrington v. State, 248 N. Y. 112; Hines v. State, 234 N. Y. Supp. 224.)
   Lehman, J.

The claimants have recovered judgments in the Court of Claims for the amounts which they expended for the construction of a bridge over the Ausable river. The Legislature by special statute authorized the hearing of the claim. The question presented upon this appeal is whether the statute is a valid exercise of legislative power.

It appears that the Legislature in 1911 appropriated moneys for the construction and improvement of parts of Route 22, a State highway (Laws of 1911, chap. 133). In the years 1912 and 1913 the State Highway Commission, pursuant to statutory provision, entered into contracts for the construction of two sections of a State highway as part of said Route 22 along the lines of dirt roads which extended from Ausable Chasm to the southerly side of Ausable river and from the northerly side of the river along or near Lake Champlain to Plattsburgh. The two sections were completed in October, 1913. The Legislature had made no provision for the construction of a bridge across the Ausable river at that point. Without a bridge the sections of the State highway would be of little or no substantial use to the public at large. The claimants in 1913 caused a bridge to be constructed over the Ausable river connecting the two sections of the State highway, and thus rendered available each of the sections for the public at large. The cost of the construction of the bridge was $9,410.41 and the claimants paid that sum. Route 22 is an important highway extending from the city of Troy to Rouses-Point and is used by through traffic to Canada and the Adirondack mountains. By the construction of the bridge the distance between important points for automobile tourists and others was decreased by four miles.

In 1913 no statute authorized the State Highway Commission or any other State officer or department to construct or pay for the bridge. Highways did not at that time include bridges having a span of more than five feet (Laws of 1911, chap. 646). The Highway Law (Laws of 1908, chap. 330; Cons. Laws, ch. 25) then provided: “ The towns of this state, except as otherwise herein provided, shall be liable to pay the expenses for the construction and repair of its public free bridges constructed over streams or other waters within their bounds ” (§ 250). Thus in 1913, when the claimants constructed the bridge, no legal claim could be made against the State for reimbursement for its cost.

Twenty years thereafter the Legislature attempted to create a legal claim against the State where none had previously existed. By chapter 368 of the Laws of 1933 it conferred upon the Court of Claims jurisdiction to hear, audit and determine claims of such persons as may have “ contributed, advanced, laid out or expended moneys ” for the construction of this bridge and directed it to render judgment for such sums if it finds that the construction of said bridge was at the cost and expense of the claimants and was necessary for the public convenience.” Such findings have now been made upon ample evidence. The question remains whether the statute was within the constitutional limitations upon the legislative power.

The Constitution provides that " neither the credit nor the money of the State shall be given or loaned to or in aid of any association, corporation or private undertaking ” (Art. VIII, § 9). We have said that this prohibition does not prevent the Legislature from recognizing claims founded on equity and justice, though not such as could have been enforced in a court of law if the state had not been immune from suit.” (Lehigh Valley R. R. Co. v. Canal Board, 204 N. Y. 471, 475.) It does not prohibit the recognition of claims which have their roots in equity and justice.” (Oswego & Syracuse R. R. Co. v. State, 226 N. Y. 351, 356.) The Legislature has a wide discretion as to the conditions upon which it will recognize a claim which is founded in equity and justice. It may not assert that discretionary power as a cloak for the grant of a gratuity or charity. “ The decision by the Legislature that certain facts create a moral obligation, even if those facts exist, is not conclusive. The courts will still be called upon to decide whether its judgment was correct.” (Williamsburgh Sav. Bank v. State, 243 N. Y. 231, 241.) The constitutional limitation upon the power of the Legislature leaves open only the restricted field of moral obligations.” Whether the Legislature has intruded into a broader field must in each case be decided by the courts.

Such terms as moral obligation ” and obligations “ founded on justice and equity ” are flexible. They serve to formulate the problem rather than to provide the formula by which the problem may be solved. No yardstick has ever been devised which can be mechanically applied. None the less, in every case there must exist an obligation which would be recognized, at least, by men with a keen sense of honor and with real desire to act fairly and equitably without compulsion of law. The Constitution does not prohibit the Legislature from doing in behalf of the State what a fine sense of justice and equity would dictate to an honorable individual. It does prohibit the Legislature from doing in behalf of the State what only a sense of gratitude or charity might impel a generous individual to do.

Benefit enjoyed at the expense of another will ordinarily call for compensation. Even where the law does not compel such compensation, justice and equity may still dictate its payment. So we have held in many cases, but in each case where we sustained the recognition by the Legislature of a “ moral obligation,” injury caused by act of the State or its agents, or arising in the course of service to the State, has been present, or there was benefit conferred upon the State at its request, express or implied, and with expectation of recompense which has been thwarted. (Cf. Farrington v. State, 248 N. Y, 112, at p. 116.) In no case heretofore has the State granted compensation for benefit enjoyed, though at the expense of another, where the benefit has been given voluntarily, without request from the State and without expectation of compensation from the State or an agency of the State.

Here the State had left to the towns the duty and expense of constructing bridges used in connection with highways. The towns failed to erect the bridge. The Legislature, if it had chosen, might have provided that in the public interest the bridge should be erected at the expense of the State, subject to the provisions of law intended to safeguard the interests of the State. The Legislature did not choose to do so. Then the claimants stepped in and voluntarily built the bridge at their own expense. It is not shown that they had any expectation that the towns would reimburse them. On the contrary, it fairly appears that the towns were unwilling to incur the expense of constructing the bridge. It is not shown that the claimants expected reimbursement from the State. On the contrary, the legislative policy not to pay for such bridges was embodied in the statutes. The claimants could not have supposed that they were under any compulsion by the State. On the contrary, it appears that they acted for some purpose of their own. We need not speculate as to what that purpose was, though it is fairly inferable that at least the claimant Ausable Chasm Company built the bridge because the bridge would bring more paying visitors to its property on the highway and thus increase the profits they derived through the price of admission. Whatever their purpose, it does not appear that any act of the State caused them to lose the expected benefit from the expense they voluntarily incurred. The Legislature alone has power to determine when the credit or moneys of the State shall be used to promote the public welfare or convenience. It must weigh the importance of competing needs and demands upon the resources of the State. An individual impelled by expectation of personal profit, or by a sense of public spirit or of charity, may step in and provide out of his own resources for a need which the Legislature has neglected. He may thus earn the gratitude of the People of the State, but there can be no moral obligation upon the State to repay him for the voluntary expenditure of moneys to meet a need for which the Legislature has refused to make provision. That is the case here. A different question might arise if the expenditure had been made to meet a danger or need caused by a sudden emergency which the Legislature had not foreseen.

The judgments should be reversed and the claims dismissed, with costs in all courts.

Crane, Ch. J., O’Brien, Hubbs, Crouch, Loughran and Finch, JJ., concur.

Judgments reversed, etc.


text:
    Morris Apter, Respondent, v. Home Life Insurance Company of New York, Appellant.
    (Argued January 17, 1935;
    decided February 26, 1935

      William G. Birmingham for appellant.
    It was error for the trial court to sustain plaintiff’s objections to questions propounded to the doctors called as defendant’s witnesses. (Steinberg v. New York Life Ins. Co., 263 N. Y. 45; Capron v. Douglass, 193 N. Y. 11.) Exclusion of a given risk from coverage, or limiting liability therefor, does not conflict with the incontestability clause. (Matter of Metropolitan Life Ins. Co. v. Conway, 252 N. Y. 449; Woodbury v. New York Life Ins. Co., 129 Misc. Rep. 365; 223 App. Div. 272; Wechsler v. New York Life Ins. Co., 147 Misc. Rep. 8; Peoria Life Ins. Co. v. Smith, 47 Fed. Rep. [2d] 279; John Hancock Ins. Co. v. Hicks, 183 N. E. Rep. 93.)

      Morris M. Oppenheim for respondent.
    The trial court was justified in finding that the plaintiff did not expressly or impliedly waive the privilege of physician and patient. (Steinberg v. New York Life Ins. Co., 263 N. Y. 45; Weil v. Weil, 151 App. Div. 622; Capron v. Douglass, 193 N. Y. 11; Patten v. U. L. A. Ins. Assn., 133 N. Y. 450; Acee v. Metropolitan Life Ins. Co., 219 App. Div. 246.) The incontestability clause effectively precluded the testimony of the physicians and its effect is improperly construed by the defendant as a limitation of coverage. (Davern v. American M. L. Ins. Co., 241 N. Y. 318; Wright v. Mutual Benefit Life Assn., 43 Hun, 61; 118 N. Y. 237; Bates v. United Life Ins. Assn., 68 Hun, 144; 142 N. Y. 677; Vettens v. Massachusetts Nat. Life Assn., 29 App. Div. 72; Teeter v. United Life & Ace. Ins. Co., 11 App. Div. 259; 159 N. Y. 411; Cohen v. North American Life Ins. Co., 185 N. W. Rep. 939; Chinery v. Metropolitan Life Ins. Co., 112 Misc. Rep. 107; Mutual Reserve Fund Life Ins.
      Co. v. Austin, 142 Fed. Rep. 398; Prudential Ins. Co. v. Connallon, 106 N. J. Eq. 251; Kansas City Life Ins. Co. V. Hislep, 154 Okla. 42; Hopkins v. Connecticut General Life Ins. Co., 225 N. Y. 76.)
   Lehman, J.

The defendant in September, 1929, issued to the plaintiff two policies of life insurance. Each policy contained a provision for the waiver of premiums and for payment of monthly income “if * * * due proof be submitted to the Company * * * that the insured has become and is totally and presumably permanently disabled by bodily injury occurring or disease originating after the date on which this agreement becomes effective.” The plaintiff thereafter became disabled from disease and proof of such disablement was served upon the defendant company. The company for some time paid the stipulated disability benefits and waived the payment of premiums. Then it ceased payment of benefits and gave notice that it recalled its waiver of annual premiums. The plaintiff has brought this action to restrain the defendant from revoking its waiver of premiums and from canceling the policies of insurance. The complaint also asks judgment for the unpaid disability benefits as provided in the policies.

The defendant in its answer denied that the plaintiff became disabled from disease within the meaning of the policies and denied other material allegations of the complaint, and alleged as a defense and counterclaim that the policies were procured by fraudulent representations of the plaintiff and by fraudulent concealment that the plaintiff was at the time when the policies were issued suffering from tuberculosis of the lungs. The answer also alleges that “ if the plaintiff is suffering from or afflicted with any bodily injury or disease which has rendered him presumably permanently disabled, such bodily injury occurred or disease originated prior to the date the aforesaid agreements became effective.”

At the trial the plaintiff called no physician to show that he was disabled by disease. The defendant conceded that fact for the purpose of proceeding with the trial of the action without requiring that the plaintiff call the physician, Dr. Golumbe. The defendant also conceded that no disability benefits were paid after July 30, 1932. The plaintiff then ■ introduced in evidence the policies and a copy of the application for disability benefits and rested. Defendant’s motion to dismiss the complaint was then denied.

The plaintiff’s application for disability benefits states that the disability is due to tuberculosis on lungs.” That constitutes an admission by the plaintiff upon which the defendant may rely, at least until it is contradicted or explained by the plaintiff. (Rudolph v. John Hancock Mut. Life Ins. Co., 251 N. Y. 208.) The defendant accepts the admission, but claims that the plaintiff was suffering from tuberculosis before the policy was issued. The defendant attempted to establish that claim by the evidence of physicians who had examined the plaintiff prior to the date when the policies were issued. That testimony was excluded upon the plaintiff’s objection that it was incompetent under section 352 of the Civil Practice Act.

If the plaintiff had called a physician to testify that he was disabled by tuberculosis, he would have waived the privilege afforded by the statute, which would otherwise protect him from the disclosure by that physician or any other attending physician that he was ill with that disease. Such waiver would not have been confined to the time concerning which the physician produced by the plaintiff testified. It would extend to the disclosure that at an earlier time the same disease existed. (Steinberg v. New York Life Ins. Co., 263 N. Y. 45.) Though in this case the defendant’s concession made it unnecessary for the plaintiff to produce the testimony of a physician that at the time he made claim for disability benefit he was suffering from tuberculosis of the lungs, he voluntarily disclosed that fact by introducing in evidence the application filed with the defendant which contained his statement or admission to that effect. Moreover, at the request of the plaintiff, the trial judge found that the plaintiff was ill with tuberculosis. Thus at the trial the plaintiff has voluntarily disclosed that he suffered from tuberculosis. That disclosure cannot be recalled. Any voluntary disclosure at the trial of the existence of a disease, whether made through examination of a physician or other witness, or made in the form of an admission or stipulation, destroys the statutory seal of secrecy. The plaintiff, though privileged to keep inviolate the secrecy of information that he is suffering from tuberculosis, has chosen the advantage that might follow from its disclosure. Then the defendant may question a physician as to the information he has acquired in regard to the disease disclosed by the plaintiff and the date when that disease originated or became evident to the physician.

The question remains whether proof that the plaintiff had, before the policies were issued, contracted the disease of tuberculosis which has resulted in his disablement, would be relevant upon any issue which is properly raised in this action. Such proof Would show that the policies are tainted by fraud. Even so, such fraud would not permit the defendant to rescind the policies, for each policy contains a provision that after this policy has been in force during the lifetime of the insured for a period of one year from the date of' issue, it shall be incontestable except for non-payment of premiums.”

At the trial the defendant claimed that this clause of the policies applied only to the provisions for fife insurance and not to the provisions of the policy for disability benefits. The trial judge decided otherwise, and upon this appeal the defendant has abandoned that claim. It still urges that even though fraud would no longer permit rescission of the policies, it may still show that the plaintiff, though disabled by disease, is not entitled to the stipulated disability benefits because the disease originated before the policies became effective.

The plaintiff must show that he is entitled to payments according to the stipulations of the policies. The coverage of the policies does not include the disability arising from disease which originated before the policies became effective. Perhaps the issuance of the policies' after a medical examination may permit the inference that at that time the plaintiff was in good health. Then proof of disability arising thereafter from tuberculosis might be sufficient to cast upon the defendant the burden of producing evidence that the disease originated before the policies were issued.

“ The provision that a policy shall be incontestable after it has been in force during the lifetime of the insured for a period of two years is not a mandate as to coverage, a definition of the hazards to be borne by the insurer. It means only this, that within the limits of the coverage, the policy shall stand, unaffected by any defense that it was invalid in its inception, or thereafter became invalid by reason of a condition broken.” (Matter of Metropolitan Life Ins. Co. v. Conway, 252 N. Y. 449, 452.) From the inception of the policies the defendant excluded from its coverage disability which originated before the policies became effective. The plaintiff never acquired any insurance against such disability. The provision that after one year the policy shall be incontestable is in effect a stipulation that after one year, fraud or other source of invalidity or forfeiture was waived by the defendant. From that time the presumption that the policies were effective from their inception became conclusive. A claim that the coverage of the policies did not include disability from a disease originating after such inception might be inconsistent with the incontestability provision. (Cf. Kansas City Life Ins. Co. v. Hislip, 154 Okla. 42.) A claim that the coverage of the policies includes no disability excluded by its terms is in exact accord with the written contract of the parties and is not in conflict with the provision that the validity of the written contract may not be contested.

The parties have stipulated that fraud by the assured will not vitiate the policies after lapse of one year- That stipulation is not open to the construction that fraud of the assured will result in the imposition upon the insurance company of a liability extending beyond the terms of its policy.

The judgment of the Appellate Division and that of the Trial Term should be reversed and a new trial granted, with costs to appellant in all courts to abide the event.

Crane, Ch. J., O’Brien, Hubbs, Crouch, Loughran and Finch, JJ., concur.

Judgments reversed, etc.


text:
    In the Matter of Monument Garage Corporation, Respondent, against Samuel Levy, as President of the Borough of Manhattan, Appellant.

      (Argued January 16, 1935;
    decided February 26, 1935.)

      Paul Windels, Corporation Counsel (Paxton Blair and Seymour B. Quel of counsel), for appellant.
    The building zone resolution applies to vacant land, and by apt language has declared open-air parking to be unlawful in a residence district. (Rouse v. Catskill & N. Y. Steamboat Co., 59 Hun, 80; 133 N. Y. 679; Matter of Cullinan, 113 App. Div. 485; Proctor Troy Properties Co. v. Dugan Stores, Inc., 191 App. Div. 685; Matter of Vegenas v. Kelly, 122 Misc. Rep. 800; Matter of Empire City Racing Assn. v. City of Yonkers, 132 Misc. Rep. 816; Village of Euclid v. Ambler Realty Co., 272 U. S. 365; People ex rel. Royal Bank of Canada v. Loughman, 226 App. Div. 593; 254 N. Y. 512; Matter of Jannicky, 209 N. Y. 413; Surace v. Danna, 248 N. Y. 18; People ex rel. Ventres v. Walsh, 121 Misc. Rep. 494.) The permit to cut the curb on Fifty-ninth street being the first move toward launching an illegal enterprise, the appellant ought not to have been required by mandamus to issue it. (Matter of Dr. Bloom, Dentist, Inc. v. Cruise, 259 N. Y. 358; People ex rel. Sherwood v. Board of Canvassers, 129 N. Y. 360; Matter of Alzmann v. Maher, 231 App. Div. 139.) The conduct of an open-air parking space is unlawful in a business district. (O’ Niel v. Buffalo Fire Ins. Co., 3 N. Y. 122.)

      Edwin DeT. Bechtel, Leslie D. Dawson and H. Henry Ramm for Murray Hill Association, Inc., amicus curiœ.

    The use of land situated in a business district for open-air parking of more than five motor vehicles is unlawful under the building zone resolution. (Hogan v. O’Brien, 123 Misc. Rep. 865; 212 App. Div. 193; Beach v. Jenkins, 174 App. Div. 813.)

      Morris Wasserman and Sol. A. Herzog for Metropolitan Garage Board of Trade, Inc., amicus curiœ.

    The building zone resolution prohibits, in a residence or in a business district, the use of vacant land for the storing of motor vehicles. (People ex rel. Freligh v. Matsell, 94 N. Y. 179; People v. McGloine, 91 N. Y. 250; Baxter v. York Realty Co., 128 App. Div. 79; 198 N. Y. 521; Freeman v. Freeman, 126 App. Div. 601; Matter of New York & Brooklyn Bridge, 72 N. Y. 527; Rouse v. Catskill & New York Steamboat Co., 59 Hun, 80; 133 N. Y. 679; Proctor Troy Properties Co. v. Dugan Stores, Inc., 191 App. Div. 685; Matter of Cullinan, 113 App. Div. 485.)

      Max Shlivek and Charles L. Fleece for respondent.
    Mandamus will lie to compel the issuance of a permit when the refusal is unreasonable or arbitrary. (Matter of Ormsby v. Bell, 218 N. Y. 212; People ex rel. E. C. T. Club v. State R. Comm., 190 N. Y. 31; People ex rel. Lodes v. Dept. of Health, 189 N. Y. 187; Message Photo Play Co. v. Bell, 179 App. Div. 13; People ex rel. Rota v. Baker, 136 App. Div. 7; People ex rel. Hultman v. Gil

      christ, 114 Misc. Rep. 652; 196 App. Div. 964; 232 N. Y. 598.) The intended use of the vacant land by petitioner does not violate the building zone resolution. (Matter of Multiplex Garages, Inc., v. Walsh, 213 App. Div. 155; 241 N. Y. 527; Woollcott v. Shubert, 217 N. Y. 212; Apex Leasing Co. v. Litke, 173 App. Div. 323; 225 N. Y. 625; Bartsch v. Ragonetti, 123 Misc. Rep. 903; 214 App. Div. 799; N. J. Zinc Co. v. Franklinite Co., 13 N. J. Eq. 322; Winlock v. State, 121 Ind. 531; Merchants’ Building Imp. Co. v. Chicago Exchange Bldg. Co., 210 Ill. 26; Matter of Van Auken v. Kimmey, 141 Misc. Rep. 105; Rau v. Westchester, 55 N. Y. Supp. 459; Proctor Troy Properties, Inc., v. Dugan Stores, Inc., 181 N. Y. Supp. 786.)

      William B. Symmes, Jr., and Harold L. Herrick for Alurion Realty Corporation, amicus curiœ.

    The word “ storage ” in the building zone resolution does not mean “ parking.” (Matter of Kaufman, 131 N. Y. 620; Tompkins v. Hunter, 149 N. Y. 117; Cooper-Snell Co. v. State, 230 N. Y. 249; McCluskey v. Cromwell, 11 N. Y. 593.) The provision of the building zone resolution in question being in derogation of the property owner’s common law rights must be strictly construed. (Woollcott v. Shubert, 217 N. Y. 212; Matter of Multiplex Garages, Inc., v. Walsh, 213 App. Div. 155; 241 N. Y. 527; Transit Comm. v. Long Island R. R. Co., 253 N. Y. 345; Jones v. City of Albany, 151 N. Y. 223; Tompkins v. Hunter, 149 N. Y. 117; Dean v. M. E. R. Co., 119 N. Y. 540; Hayes v. Davidson, 98 N. Y. 19; Berths v. Nunan, 92 N. Y. 152; Taylor v. Mayor, 82 N. Y. 10.)
   Lehman, J.

The Monument Garage Corporation is the lessor of a vacant plot of land approximately 200 feet in depth and abutting on both Fifty-ninth street and Fifty-eighth street in the borough of Manhattan. An application to the President of the borough for a permit to lower the curb for the purpose of providing a carriageway across the sidewalk of both streets was rejected. Alleging that the rejection was arbitrary and illegal, the applicant asked a mandamus order to compel the President of the borough to issue the permit. A final order has been granted after all disputed questions of fact have been resolved in favor of the applicant upon the trial of an alternative mandamus order.

The applicant intends to conduct upon its land the business of “ parking ” motor vehicles. It seeks the permit for the purpose of providing a means of access for such motor vehicles to the land. The Borough President urges that such use of the land would constitute a violation of the Zoning Ordinance of the city of New York. A refusal by a public officer to issue a permit which is intended solely to promote an illegal purpose, detrimental to the pubfic, cannot be regarded as an arbitrary act. (Matter of Dr. Bloom, Dentist, Inc., v. Cruise, 259 N. Y. 358.) The question of law here presented is whether the use by the applicant of his land as a “ parking space ” for automobiles is prohibited by the Zoning Ordinance

The portion of the applicant’s land which abuts upon West Fifty-eighth street is in a business district, while the portion of the applicant’s premises which fronts upon West Fifty-ninth street is in a residence district. The Zoning Resolution provides that “ in a business district no building or premises shall be used, and no building shall be erected which is arranged, intended or designed to be used, for any of the following specified trades, industries or uses ” (See New York Code of Ordinances, Appendix B, § 4). There trades, industries and uses not specifically prohibited are permitted. Subdivision 15 of that section prohibits the use of building or premises for storage of more than five motor vehicles. Concededly no other subdivision could be construed as a prohibition of the Use of premises for a parking space. There is a substantial distinction, clearly cognizable, between the meaning of “ storage ” and “ parking.” One has a certain degree of permanency, while the other connotes transience. The Zoning Ordinance is in derogation of common law rights to the use of private property. Its provisions should not be extended by implication. Consequently the prohibition of the use of a building or premises for storage of more than five motor vehicles does not include the use of premises as a place for parking;” i. e., a place for the standing ” of a vehicle, unattended by a person capable of operating it.” ,(Cf. Vehicle & Traffic Law, § 2, subds. 20 and 21; Cons. Laws, ch. 71.) The use for a parking space of that portion of the petitioner’s premises within a business district is lawful and the petitioner has a clear legal right to demand a permit to lower the curb on Fifty-eighth street. So we have decided in Matter of Smith v. Levy (264 N. Y. 575).

The question still remains open whether land may be used for the parking of motor vehicles in a residence district. While in a business • district there is no prohibition against the use of buildings or premises except for specified trades, industries or uses,... in a residence district there is a prohibition against the use of buildings or premises for any use other than specified in the Zoning Resolution. By no possible construction do any of the specified uses permitted in the residence districts include commercial parking of automobiles. The argument is advanced, however, that the ordinance does not apply to vacant land. The word premises ” has a broad significance. We may not disregard it. The intent that the Zoning Resolution should apply to every use, whether of buildings or land, in a use district,” clearly appears from the express terms of the resolution, and is instinct in many of its separate clauses. Here there is no room for construction. The ordinance must be applied in accordance with its letter and spirit. The use of the applicant’s land within the residence district and abutting on Fifty-ninth street for parking space is illegal, and permit for lowering the curb on Fifty-ninth street was properly refused.

The orders should be modified in accordance with this opinion and as so modified affirmed, without costs.

Crane, Ch. J., O’Brien, Hijbbs, Crouch and Lough-ran, JJ., concur; Finch, 5., not sitting.

Ordered accordingly.


author: Lehman, J. Hubbs, J.

text:
    Minnie Wachtel, Respondent, v. The Equitable Life Assurance Society of the United States et al., Appellants.

      (Argued January 9, 1935;
    decided February 26, 1935.)

      Peter C. Mann for The Equitable Life Assurance Society of the United States, appellant.
    As a condition precedent to recover the double indemnity amount, proofs of death must be furnished showing a death resulting solely from a bodily injury effected solely through external, violent and accidental means. (O’Reilly v. Guardian Life Ins. Co., 60 N. Y. 169; Strang v. Prudential Life Ins. Co., 263 N. Y. 71; Epstein v. Mutual Life Ins. Co., 143 Misc. Rep. 587; 236 App. Div. 843; Bergholm v. Peoria Life Ins. Co., 284 U. S. 489; Ginell v. Prudential

      Life Ins. Co., 205 App. Div. 494; Page v. Commercial Travelers Eastern Accident Assn., 225 Mass. 335; Security Bank v. Equitable Life Assur. Society, 112 Va. 462; Gauche v. London & Lancashire Ins. Co., 10 Fed. Rep. 347; Continental Life Ins. Co. v. Searing, 240 Fed. Rep. 653; Metropolitan Life Ins. Co. v. Botto, 153 Va. 468; Travelers Ins. Co. v. Sheppard, 85 Ga. 751.) No proofs of accidental death were ever submitted, but on the contrary the proofs submitted showed death by disease and the defendants were entitled to a dismissal at the close of the plaintiff’s case and a directed verdict at the close of the whole case. (Strong v. Prudential Life Ins. Co., 263 N. Y. 71; O’Reilly v. Guardian Life Ins. Co., 60 N. Y. 169; McMartin v. Fidelity & Casualty Co., 264 N. Y. 220.) Plaintiff did not plead and consequently cannot prove a waiver. (Ryer v. Prudential Life Ins. Co., 185 N. Y. 6; Kelly v. St. Michael’s R. C. Church, 148 App. Div. 767; Hoffman v. Metropolitan Life Ins. Co., 135 App. Div. 739.) The proofs of death were not mere admissions but were necessary to plaintiff to prove compliance with the conditions precedent to recovery and were binding on her. (Rudolph v. John Hancock Life Ins. Co., 251 N. Y. 208; Redmond v. Industrial Benefit Assn., 150 N. Y. 167; Spencer v. Citizens’ Mut. Life Ins. Assn., 142 N. Y. 505; Hanna v. Connecticut Mut. Life Ins. Co., 150 N. Y. 526.)

      Louis P. Galli and William J. Moran for The Travelers Insurance Company, appellant.
    The proofs of death showed that the insured’s death was caused by disease; hence, plaintiff failed to comply with the condition precedent contained in the policy which required proof showing that the death resulted from bodily injuries effective directly and independently of all other causes through external, violent and accidental means. (O’Reilly v. Guardian Mut. Life Ins. Co., 60 N. Y. 169; Strang v. Prudential Life Ins. Co., 263 N. Y. 71; Page v. Commercial Travelers Eastern Acc. Assn., 225 Mass. 335; Ginell v.
      Prudential Life Ins. Co., 205 App. Div. 494; 237 N. Y. 554; Insurance Co. v. Newton, 22 Wall. 32; Irving v. Excelsior Fire Ins. Co., 1 Bosw. 507; Security Bank v. Equitable Life Assur. Society, 112 Va. 462; Maclin v. New England Mut. Life Assn., 33 La. Ann. 801; Sasse v. United Commercial Travelers, 168 App. Div. 746; Naseef v. Metropolitan Life Ins. Co., 230 App. Div. 610; Clark v. Employers’ Liability Assur. Co., 72 Vt. 458; Rathman v. New Amsterdam Cas. Co., 186. Mich. 115; Ackerman v. Minnesota Commercial Men’s Assn., 184 Minn. 522.) The defendants did not waive the condition precedent contained in its policy requiring proof of death exclusively by accidental means, nor were they required to demand additional proof of death. (Sasse v. United Commercial Travelers, 168 App. Div. 746; Todd v. Union Casualty & Surety Co., 70 App. Div. 52; Titus v. Glens Falls Ins. Co., 81 N. Y. 410; Armstrong v. Agricultural Ins. Co., 130 N. Y. 560; Palma v. National Fire Ins. Co., 240 App. Div. 454.)

      John J. Cunneen for Manhattan Life Insurance Company, appellant.
    Plaintiff made no plea of waiver of proofs of death nor of any mistake in the proofs of death served but to the contrary alleged that satisfactory proof of death in the manner and to the extent required by the policy was duly furnished the defendant. (Sasse v. United Commercial Travelers, 168 App. Div. 746; Todd v. Union Casualty & Surety Co., 70 App. Div. 52.)

      Herman A. Gray, Nathan Grossman and Maxwell M. Booxbaum for respondent.
    Plaintiff was not conclusively bound by the doctor’s original diagnosis, particularly when he himself repudiated it on the witness stand. (Rudolph v. John Hancock Mut. Life Ins. Co., 251 N. Y. 208; McMaster v. President of Ins. Co. of No. America, 55 N. Y. 222; Freese v. National Ben Franklin Ins. Co., 163 App. Div. 57; Schmitt v. National Life Assn., 84 Hun, 128; Howard v. Metropolitan Life Ins. Co., 18 Misc. Rep. 74; Boylan v. Prudential Ins. Co., 18 Misc. Rep. 444.) The defendants accepted the proofs of death as adequate and by their conduct precluded themselves from questioning their sufficiency. (Trippe v. Provident Fund Society, 140 N. Y. 23; Cornell v. Travelers Ins. Co., 120 App. Div. 459; 192 N. Y. 587; Partridge v. Milwaukee Ins. Co., 13 App. Div. 519; 162 N. Y. 597; Brink v. Hanover Fire Ins. Co., 80 N. Y. 108; Carthage T. P. Mills v. Village of Carthage, 200 N. Y. 1; City of New York v. N. Y. City Ry. Co., 193 N. Y. 543; Woolsey v. Funke, 121 N. Y. 87; Imperador Realty Co. v. Tull, 228 N. Y. 447; Glazer v. Home Ins. Co., 190 N. Y. 6; Dobson v. Hartford Fire Ins. Co., 86 App. Div. 115; 179 N. Y. 557; Sherri v. National Surety Co., 243 N. Y. 266; Karelsen v. Sun Fire Office of London, 45 Hun, 144; Kernochan v. N. Y. Bowery Fire Ins. Co., 17 N. Y. 428; Aiesenson v. Nat. Cos. Co., 237 App. Div. 855; 262 N. Y. 480; Fagerlie v. N. Y. Life Ins. Co., 129 Ore. 485.) Statements in proofs, while admissions, are not conclusive and may be overcome by other evidence. (Rudolph v. John Hancock M. L. Ins. Co., 251 N. Y. 208; White v. Royal Ins. Co., 149 N. Y. 485; Spencer v. C. M. L. Ins. Assn., 142 N. Y. 505; McMaster v. President of Ins. Co. of No. America, 55 N. Y. 222.)
   Lehman, J.

The plaintiff is the beneficiary named in policies issued by the three defendant insurance companies, insuring the fife of her husband. The policies contain clauses, differing only in immaterial detail, providing for double indemnity to be paid upon due proof that the death of the insured resulted from bodily injuries caused directly, exclusively and independently of all other causes by external, violent and purely accidental means. The assured died on August 10, 1930. The companies did not dispute liability for the stipulated indemnity to be paid upon proof of the death of the insured. They have refused to pay the additional sums "payable upon due proof that the death was the result of accident, and this action was brought to obtain such double indemnity.

The beneficiary, before bringing suit, served upon each insurance company notice and proof of death of the assured. This , proof is not in each case the same, but all state in some form that the assured died of acute coronary thrombosis. Only in the proof served upon the Travelers Insurance Company is there any allegation or suggestion that death was due to an “ accident to left leg early part of July, 1930,” but even in that proof the claimant stated without qualification that the cause of death was acute coronary thrombosis and the attending physician’s statement, which constitutes part of the proof, gives the same cause, without even any contributory causes. Coronary thrombosis is, concededly, a disease. Thus, the proofs of death were not only insufficient to show death caused exclusively by accidental means, but showed affirmatively that death was due to disease.

The claimant began this action without serving any additional proofs. The complaint alleges that she has complied with and performed all the conditions and terms of said policy on her part to be performed. Proof of death by accident is a condition precedent to liability for double indemnity and under the pleadings the plaintiff was required to show performance of this condition. The trial court dismissed the complaint because the plaintiff failed to show such performance. The Appellate Division has reversed on the ground that proof which showed that the defendants waived performance was received without proper objection.

At the trial the plaintiff was permitted to introduce, over the objection of the defendants, evidence that death was due to an accidental injury sustained some months before. We assume that the evidence would be sufficient to raise a question of fact as to the cause of death. If that is so, it would also be sufficient to make out a prima facie ease that the statement, in the proofs submitted to the companies, that death was the result of the disease of acute coronary thrombosis, was due to mistake. Admissions, in proofs of claims to insurance companies, like other admissions, are subject to explanation. They are not conclusive, and proof may be presented that they are erroneous. (Rudolph v. John Hancock Mut. Life Ins. Co., 251 N. Y. 208, 214.) The plaintiff maintains that proofs of death by disease, thus shown to be erroneous, may be regarded as sufficient proofs of death by accident, especially where the insurance companies demanded no additional proof.

Such contention carries its own refutation. The admission of the cause of death was binding until corrected or explained. (Rudolph v. John ancock Mut. Life Ins. Co., supra; Hanna v. Connecticut Mut. Life Ins. Co., 150 N. Y. 526; Spencer v. C. M. L. Ins. Assn., 142 N. Y. 505, 509.) Explanation of an admission in proofs submitted to an insurance company may completely destroy the effect of the admission Then the admission no longer has force to sustain an affirmative defense of the company (Parmelee v. Hoffman Fire Ins. Co., 54 N. Y. 193; Cummins v. Agricultural Ins. Co., 67 N. Y. 260, 262), or to nullify affirmative proof by the plaintiff. (Pythias Knights’ Supreme Lodge v. Beck, 181 U. S. 49.) An admission erroneously made may be disregarded when proof of the error has been properly admitted. None the less, a party, required by contract to submit proof of certain facts as a condition of liability, does not perform the condition by submitting through error proof that these facts do not exist.

We have said in other cases that the requirement of due proof is to be liberally construed in favor of the insured. (Glatser v. Home Ins. Co., 190 N. Y. 6.) It may be satisfied where such reasonable evidence [is furnished] as the party can command at the time, to give assurance that the event has happened, upon which the liability of the insurers depends. * * * The purpose of the condition is that the insurer may be able intelligently to form some estimate of bis rights and liabilities before he is obliged to pay.” (O’Reilly v. Guardian Mut. Life Ins. Co., 60 N. Y. 169,173.) We apply that test here. The proof submitted by the claimant showed, until explained, that the claimant was not entitled to double indemnity. No explanation of the admission that death was due to disease, and no proof that in fact death was due to accident, was ever furnished to these companies. They may have learned from other sources that death was due to accident, in spite of proof to the contrary submitted by the claimant. They may have decided, as a result of that independent investigation, that they would deny liability for double indemnity, even if formal proof that death was due to accident was thereafter presented. Nevertheless, it remains true that the claimant failed to comply with the stipulated condition to furnish the company with proof which would enable the insurer to frame an intelligent estimate of its rights and liabilities, and till such proof was given or waived, no liability for double indemnity could arise. The failure of an insurance company to object to the sufficiency of proof, when submitted, may, at times, preclude claim that the proofs did not comply with the terms of the policy. That is not the case where no proof has been submitted that the event has happened, upon which the liability of the insurers depends ” or where the proof submitted affirmatively shows that no liability exists.

The question remains whether the defendants waived the service of proof that death was due exclusively to accident. Waiver was not pleaded, and the letters from the defendant, which are relied upon to show waiver, were admitted over objection by the defendant. It is said that the objection was not sufficiently specific. It might well be argued that under the circumstances of this case, no other objection was called for. We need not decide that question now, for in our opinion the letters are insufficient to show waiver.

True, the letters reject any claim of liability for double indemnity, and ordinarily an unqualified rejection of liability by an insurance company before sufficient proofs of claim have been presented is a waiver of a condition that proofs must be presented. Here the letters of the defendants must be read in the fight of what had occurred. The plaintiff, as we have said, had not only failed to submit proof of death by accident, but had submitted affirmative proof of death by disease. The purpose of the condition that proof must be submitted was to enable the defendants to determine whether they were liable. The claimant’s proof was not explained or corrected. The defendants acted upon it, as they had the right to do. They denied liability for double indemnity because, so they said, the proofs submitted, and independent investigation alike, showed that no such liability exists. They did not close the door to further proof which might establish such liability. They were not called upon to say that, if the plaintiff contradicted the proof of death she had submitted, liability might exist.

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

Hubbs, J.

(dissenting). I agree with Judge Lehman that the service of proofs of death by accident was a condition precedent to liability for double indemnity; that the evidence introduced by respondent that death resulted from an injury was sufficient to create a question of fact and establish a prima facie case; that the statement in the proofs submitted to the companies that death resulted from coronary thrombosis was submitted by mistake; that such statement, while constituting an admission, was subject to explanation and correction; that after such explanation the admission no longer constituted an affirmative defense; that the requirement of due proof is to be liberally construed in favor of the claimant; and that the purpose of the condition is to enable the insurer to intelligently form an estimate of its rights and liabilities.

I am unable to agree with the conclusion that the application of those principles requires the dismissal of the complaint. I believe that such conclusion is directly contrary to many decisions of this court and in conflict with the decisions in almost every other State.

The requirement of the policies is that due proofs shall be served. There is no limit of time specified within which such proofs shall be served. No form of proofs is specified. The policies do not specify of what the proofs shall consist or by whom they shall be made. The words “ due proof ” do not have a narrow, technical meaning. Any information furnished the company which puts it in possession of the necessary facts and upon which it acts may constitute " due proofs.”

At the close of the evidence the jury might properly have found, if the case had been submitted to it, that the insured, while apparently in perfect health, was stricken suddenly and died almost instantly. A young, inexperienced physician was called, who, without a history of the case, believed that death resulted from coronary thrombosis, a disease. As a witness at the trial he testified that after learning the history of the case he believed that he had made a mistake in stating the cause of death, and that the cause of death was pulmonary embolism resulting from an injury.

Relying upon the mistaken belief of the physician, the proofs furnished to the companies stated the cause of death was coronary thrombosis. The proof furnished the Equitable contained the following question and answer: 8. State all facts in connection with the cause and circumstances of death. Several teeth extracted between March 12th and April 18th, 1930. Suffered accident to a vein in left leg early part of July.” The proof furnished the Travelers contained the following: “ Date and place of accident? Accident to left leg early part of July 1930 at home.” The proof furnished the Manhattan contained the following question and answer: “7. Names and addresses of all physicians who attended deceased during his last illness and during three years prior thereto: Dr. Chas. Brendler, 101 E. 93 St. N. Y. C. July 11, 1930. Acute Phelbitis.”

It thus appeared that while the cause of death given in each proof of death was stated to be coronary thrombosis, it was also stated in two that assured had suffered an injury in July to a vein in his left leg; in the other that he had sustained an injury. The Equitable, after the receipt of the proof of death, which informed it that a “ cause and circumstance of death ” was an accident to a vein in left leg,” sent an investigator who called upon respondent and talked with her about her husband’s death and was informed by her about the details of the accident to his left leg. He made, a written report to the Equitable in which he embodied that information. He also talked with Dr. Goldberg and was informed by him that the claim was being made that insured died as a result of the injury to his leg. He also talked with Dr. Brendler, who treated insured for the injury to his leg. The Equitable did not in any way object to the sufficiency of the proof of death, but proceeded to act upon it. It did everything that it could have done if the proof of death had made the specific claim that death was due to the specific injury to the leg and claimed double indemnity. In the interview with respondent it lulled her into a sense of security and led her to believe that it was treating the case upon its merits without regard to the form or sufficiency of the proofs of death. After its investigation it wrote the attorney for respondent, in reply to a letter from him, denying liability for double indemnity and stating the investigation made by this Society clearly shows that this man died of acute coronary thrombosis.”

In the proof of death served on the Travelers the following questions and answers appear: (If due solely and independently of all other causes to bodily injuries the result of accidental means, give the following information): Date and place of accident? Accident to left leg early part of July, 1930, at home. Description of accident ■ — ■ acute Phlebitis.” The attorney for respondent made a claim for double indemnity. The company sent a draft for the amount of the policy payable to respondent and stated that acceptance of the same would be without prejudice to her claim for double indemnity. The respondent surely was justified in relying upon the fact that the company treated the claim filed for double indemnity as proper in form for the consideration of the company and that it had been duly considered and rejected. It based its rejection of the claim upon the report made by the adjuster of the Equitable which had been furnished to it, and upon an independent investigation made by its own investigator, a physician, who called upon Dr. Goldberg and read to him the report made by the Equitable investigator and talked with him about it.

Immediately after insured’s death, the respondent wrote the Manhattan informing it of his death and asking for “ any papers you want me to sign.” The company sent the blank forms to be used. The proofs were filed and showed that the insured had been treated by Dr. Brendler for acute phlebitis on July 11, 1930. The company sent its check for the single indemnity. Three days later respondent’s attorney wrote the company asserting a claim for double indemnity. The company’s counsel replied saying he could not understand the basis for the assertion that the insured died by accidental means.” Plaintiff’s attorney again wrote to the company’s counsel, who replied that the proofs of death showed that there was no liability for double indemnity and declined to furnish the blanks requested.

None of the policies required that the proofs of death should be furnished within any definite time. This is not a case, therefore, where a company refuses to furnish blanks after the time to serve has expired and the insured is in default.

None of the policies prescribed a form of proof or a time within which to serve. The purpose which the proof serves is to enable the company to ascertain the extent of its liability, to make an investigation and arrive at a decision whether to pay or not to pay. The proofs served established the fact of the death of the insured, that the event upon which liability depended had happened. The only question was the extent of that liability. Each company exercised its judgment upon that question after full information that a claim was made for double indemnity. Each rejected that claim, not upon the ground that it did not have information as to the facts, but upon the express ground that death was caused by disease and not by accident. Each company, by its acts, put its own interpretation upon the situation, and by its conduct led the respondent to believe that it was rejecting the claim upon the merits and not because of a technical defect in the proofs, which it was still within the power of respondent to correct if her attention had been called to the fact. The companies were at liberty to accept the claims made as a sufficient performance of the condition, and by their acts in accepting such performance they induced the respondent to believe that further performance on her part was unnecessary. If a further act or performance were necessary under the strict reading of the contracts, the companies had waived it. At least, there was evidence which required that the question be submitted to the jury as one of fact. It cannot be determined as a question of law. (Glaser v. Home Ins. Co., 190 N. Y. 6; Dobson v. Hartford Fire Ins. Co., 86 App, Div. 115; affd., 179 N. Y. 557; Sherri v. National Surety Co., 243 N. Y. 266; Imperator Realty Co. v. Tull, 228 N. Y. 447; Cornell v. Travelers Ins. Co., 120 App. Div. 459; affd., 192 N. Y. 587.)

It is urged by appellants that the evidence of waiver was improperly received because it was not pleaded. If so, it constituted a variance but there was no objection made to the receipt of the evidence on that ground. An objection on that ground, to be available, must be specific, as that objection could be obviated by an amendment of the complaint. Those who have had experience in the trial of insurance cases know that the specific objection that evidence of waiver cannot be received because not pleaded is seldom made. The reason why that objection is not made is that counsel know that if made it would lead to an amendment of the complaint. The exceptions taken to the receipt of such evidence are not available on this appeal. It was clearly competent to introduce evidence to the effect that a mistake had been made in stating the cause of death in the proofs of death, and to give evidence of the cause of death claimed by respondent to be the true cause of death. (Rudolph v. John Hancock Mut. Life Ins. Co., 251 N. Y. 208.)

The companies were not prejudiced by the failure to serve more definite proofs of death. They had all the information which respondent could have supplied. They acted upon such information and denied liability upon the specific ground that insured died from disease and not as the result of injury. They did not object to the form or sufficiency of the proofs of death, but elected to place themselves squarely upon the ground that death was caused by disease. They made no proper objection that proof of waiver was not competent under the pleadings. The proofs of waiver were properly in the case, and presented a question of fact for the decision of the jury.

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

O’Brien, Crouch and Loughran, JJ., concur with Lehman, J.; Hubbs, J., dissents in opinion in which Crane, Ch. J., concurs; Finch, J., not sitting.

Judgment accordingly.


author: Per Curiam.

text:
    In the Matter of Max Marcus, Respondent, against Raymond V. Ingersoll, as President of the Borough of Brooklyn, et al., Appellants.
    (Argued January 23, 1935;
    decided February 26, 1935.)

      Paul Windels, Corporation Counsel (Edmund L. Palmieri, Paxton Blair and Thomas W. A. Crowe of counsel), for appellants.
    The suspension of the petitioner on the basis of seniority was properly computed on the basis of his original entry into the city service as of December 16, 1924; bis prior service with State agencies cannot be added to his subsequent terms of city service with the office of the Borough President. (Gelson v. City of New York, 237 App. Div. 889; 262 N. Y. 497; McGovern v. City of New York, 234 N. Y. 377; Watson v. Gugino, 204 N. Y. 535; Interborough Rapid Transit Co. v. Lavin, 247 N. Y. 65.) By his resignation on June 18, 1923, the petitioner terminated any previously acquired seniority or right to preference in retention in service predicated upon his appointment to serve under the Public Service Commission on October 25, 1916. (Koso v. Greene, 260 N. Y. 491; Matter of Spivak v. Delaney, 240 App. Div. 806; 264 N. Y. 491; People ex rel. O'Dea v. Delaney, 241 App. Div. 844.)

      Albert De Roode for respondent.
    Resignation and return to employment within one year do not vitiate or annul a prior date of original appointment. (Matter of Knights v. Staley, 118 Misc. Rep. 837; 200 App. Div. 850; Koso v. Greene, 260 N. Y. 491; United States v. Thornton, 160 U. S. 654; Matter of Arnow, 241 App. Div. 861; Matter of Weiher v. Greene, 239 App. Div. 652; Matter of Spivak, 264 N. Y. 491.) Employment in the local transit agencies for the city of New York paid by the city is city service. (People ex rel. Bush v. Houghton, 182 N. Y. 301; People ex rel. Werner v. Prendergast, 206 N. Y. 405; People ex rel. Ryan v. Civil Service Boards, 41 Hun, 287; 103 N. Y. 657; Sun Pub. Assn. v. Mayor, 152 N. Y. 257.)
   Per Curiam.

The petitioner in October, 1916, was appointed junior assistant in the office of the Public Service Commission of the First District, New York city. He served under the Public Service Commission and its successor official bodies until June 18, 1923. Then he resigned. On October 8th, 1923, he was appointed a topographical draftsman, Grade C, in the office of the Borough President of Brooklyn. That appointment was provisional. He was definitively appointed to that position on December 16th, 1924. Then he was suspended for lack of work. Such suspensions must be made in the inverse order of original appointment in the service.” (Civil Service Law, § 31; Cons. Laws, ch. 7.) The Municipal Civil Service Commission ruled that the date of the petitioner’s original appointment was December 16th, 1924. The courts below have held that the date of the original appointment was October 25th, 1916.

Resignation of his position under the Transit Commission terminated the petitioner’s service. True, the rules of the State Civil Service Commission and the rules of the Municipal Civil Service Commission both provide that in certain circumstances a person who has resigned may be reinstated within one year without examination. Reinstatement might then have the effect of wiping out the resignation and renewed service might be traced in •unbroken fine to original appointment. Here, however, the petitioner was not reinstated in his former position, nor was he transferred to another position of the same grade or in the same service. He was given a provisional office by the city officer pending a new examination. So far as appears, the new appointment, though made within a year after the resignation, was not connected with the previous service and must be regarded as an original appointment, and forms the date from which the petitioner’s place in the order of suspension must be determined.

The orders should be reversed and the proceedings dismissed, with costs in this court and in the Appellate Division.

Crane, Ch. J., Lehman, O’Brien, Hubbs, Crouch, Loughran and Finch, JJ., concur.

Orders reversed, etc.


text:
    In the Matter of the Claim of John Dunn, Respondent, against The University of Rochester, Appellant. State Industrial Board, Respondent.
    (Argued January 15, 1935;
    decided February 26, 1935.)

      Edward I. Cristy for appellant.
    At the time of the accident the relationship of the appellant to the claimant was that of licensor-licensee. (Huscroft v. Bennett, 7 B. W. C. C. 41; Matter of Daly v. Bates & Roberts, 224 N. Y. 126; Matter of Kowalek v. New York Consolidated R. R. Co., 229 N. Y. 489; Matter of Commissioner of Taxation v. Fure, 264 N. Y. 678; Golbe v. Port Jervis Water Works, 35 State Dept. Rep. 716; Matter of Glatzl v. Stumpp, 220 N. Y. 71; Matter of Beach v. Velzy, 238 N. Y. 100; Matter of Pisko v. Mintz, 262 N. Y. 176; Matter of Groszek v. Western Union Tel. Co., 262 N. Y. 478; Schonback v. School District No. 5, 262 N. Y. 666; Matter of McGuckin v. Ætna Life Ins. Co., 262 N. Y. 545; Matter of Johnson v. Smith, 263 N. Y. 10; Jacobson v. Jamaica Jewish Center, Inc., 238 App. Div. 886.)

      John J. Bennett, Jr., Attorney-General (Roy Wiedersum of counsel), for State Industrial Board, respondent.
    At the time of the accident the claimant was an employee of the appellant and the accidental injuries received by him arose out of and in the course of his employment. (Matter of Glielmi v. Netherland Dairy Co., 254 N. Y. 60; Maher v. Commander Taxi Corp., 227 App. Div. 832; Matter of Johnson v. Roosevelt Memorial Assn., 259 N. Y. 641.)
   Per Curiam.

The claimant’s employment was confined to the operation of a gas filling station at a regular weekly wage. The permissive operation of a service station for his own profit was not part of that employment, even though the permission may have been granted because the 'operation of a service station would be convenient, and even though such permission may have induced the .claimant to accept the employment. (Cf. Huscroft v. Bennett, 7 B. W. C. C. 41.) The courts below have relied upon the decision of this court in Matter of Johnson v. Roosevelt Memorial Assn. (259 N. Y. 641). There the claimant was injured while engaged for the benefit of the employer in the work which he was employed to do, though as remuneration for his work he was entitled to its direct profits. Here the work lay outside the scope of the employment and was performed voluntarily for the benefit of the claimant and not of the employer.

The order of the Appellate Division and the award of the State Industrial Board should be reversed and the claim dismissed, with costs in all courts against the State Industrial Board.

Crane, Ch. J., Lehman, O’Brien, Hubbs, Crouch, Loughran and Finch, JJ., concur.

Ordered accordingly.