author: Lewis, Ch. J. Desmond, J.

text:
    In the Matter of the Claim of Louis S. Croce, Appellant, against Ford Motor Company, Respondent. Workmen’s Compensation Board, Respondent.
    Argued March 3, 1954;
    decided May 27, 1954.

      J. Harry Tiernan, Jr., Walter A. Kirkpatrick and Joseph W. Kirkpatrick for appellant.
    I. The decision of the board which was affirmed by the Appellate Division violates the clear and explicit provisions of subdivision 5-a of section 15 of the Workmen’s Compensation Law, and is in direct conflict with decisions of this court construing those provisions. (Matter of Santo v. Symington Mach. Co., 237 App. Div. 242, 262 N. Y. 653; Matter of Wood v. Seneca Iron & Steel Co., 246 App. Div. 871, 271 N. Y. 642; Matter of Jordan v. Decorative Co., 230 N. Y. 522; Matter of Boucher v. Starrett Bros. & Eken, 238 App. Div. 880; Matter of Block v. Ready-Froelich, 240 App. Div. 9, 264 N. Y. 618; Matter of Merconte v. Associated Operating Co., 241 App. Div. 640; Matter of Matise v. Munro Waterproofing Co., 293 N. Y. 496; Matter of Mullins v. Atlantic Basin Iron Works, 271 App. Div. 854, 297 N. Y. 550; Matter of Dalberth v. Iuppa & Battle Co., 262 N. Y. 537; Matter of Mikno v. Endicott Johnson Corp., 278 App. Div. 598; Matter of Hermon v. Pugh, 272 App. Div. 985; Matter of Moses v. Mrs. Dixon’s Products Co., 277 App. Div. 820; Matter of Wood v. Board of Educ. of City of New Rochelle, 265 App. Div. 430.) II. The construction by this court of the provisions of subdivision 5-a of section 15 of the Workmen’s Compensation Law in the preceding point is sound and proper under the accepted canons of statutory construction and should be adhered to on this appeal. (Kelly v. Supreme Council, 46 App. Div. 79; Astor v. Merritt, 111 U. S. 202; Lamport v. Smedley, 213 N. Y. 82; People ex rel. Sheldon v. Board of Appeals of City of N. Y., 234 N. Y. 484; Mabie v. Fuller, 255 N. Y. 194.) III. The board’s formula approved by the Appellate Division constitutes invalid legislation. (Matter of Colonial Liq. Distributors v. O’Connell, 295 N. Y. 129; Kane v. Walsh, 295 N. Y. 198; Lawrence Constr. Corp. v. State of New York, 293 N. Y. 634; Saltser & Weinsier v. McGoldrick, 295 N. Y. 499; Matter of Hering, 196 N. Y. 218; Matter of Metropolitan Life Ins. Co. v. Boland, 281 N. Y. 357; People v. Crane, 214 N. Y. 154; McKuskie v. Hendrickson, 128 N. Y. 555; Johnson v. Hudson

      R. R. R. Co., 49 N. Y. 455.) IV. The board’s formula is unsupported by any legislative guides or standards. (People v. Klinck Packing Co., 214 N. Y. 121; Matter of Lyons v. Prince, 281 N. Y. 557; Matter of Small v. Moss, 279 N. Y. 288; Matter of Fink v. Cole, 302 N. Y. 216.)

      Benedict T. Mangano for Ford Motor Company, respondent.
    The court below did not err in affirming the decision of the board imputing to the claimant-appellant earnings commensurate with his demonstrated wage earning capacity for the days he did no work for reasons unrelated to his disability. (Matter of Wilson v. General Motors Corp., 298 N. Y. 468; Matter of Industrial Comr. [Siquin] v. McCarthy, 295 N. Y. 443.)
   Lewis, Ch. J.

This appeal is by our permission from an order of the Appellate Division unanimously affirming an award of workmen’s compensation based on reduced earnings due to partial disability for the period July 31, 1950, to April 9, 1951. There is no dispute as to the fact of injury, the disability, or the compensability thereof. Our inquiry goes to the single question whether the Workmen’s Compensation Board correctly computed claimant’s wage-earning capacity subsequent to his injury, in determining the amount of compensation payable for his partial disability.

Prior to July 19,1950, claimant was employed as a wet sander in the respondent Ford Motor Company’s plant at Buffalo. On that date claimant became disabled as the result of a skin eruption on the right elbow and arm which was found by the board to be folieulitis contracted in, and due to the nature and conditions of, his employment. After two weeks of total disability claimant returned to work at the respondent’s Buffalo plant where, due to a continuing partial disability resulting from the skin disorder, he was given a type of work different from that which he had formerly done and at a wage scale different from that in effect on his previous type of employment.

During the period of his partial disability — for which compensation has been awarded — claimant worked a total of thirty-six weeks. For most of that time, he worked a five-day week, which was the same as his average working period prior to his disability. However, in seven of the weeks between July 31, 1950, and April 9,1951, respondent’s plant was closed down for one or more days due to a strike in Detroit which stopped production in respondent’s Buffalo plant.

The Workmen’s Compensation Law (§ 15, subd. 5) provides: ‘1 5. Temporary partial disability. In case of temporary partial disability resulting in decrease of earning capacity, the compensation shall be two-thirds of the difference between the injured employee’s average weekly wages before the accident and his wage earning capacity after the accident in the same or another employment but shall not exceed in total five thousand five hundred dollars.” Section 15 (subd. 5-a) provides: “ Determination of wage earning capacity. The wage earning capacity of an injured employee in cases of partial disability shall be determined by his actual earnings, provided, however, that if he has no such actual earnings the board may in the interest of justice fix such wage earning capacity as shall be reasonable, but not in excess of seventy-five per centum of his former full time actual earnings, having due regard to the nature of his injury and his physical impairment ” (emphasis supplied).

The Workmen’s Compensation Board found claimant’s average weekly wage prior to disability had been $77.45. However, in determining his wage earning capacity after disability, the board not only considered earnings actually received by claimant during the period in question, but also found that “ In computing the reduced earning rates the fact that the plant was closed on certain days should be taken into consideration. Therefore, Louis S. Croce [claimant] is to be charged with wages he would have received if the plant had not closed during those days. A daily rate of $12.20 is added to his earnings for each day that the plant closed.” (Emphasis supplied.) By thus increasing claimant’s wage earning capacity after the accident ’ ’, the board reduced the amount of compensation which had been awarded by the compensation referee under section 15 (subds. 5, 5-a) of the Workmen’s Compensation Law (supra).

The claimant-appellant contends that, under section 15 (subds. 5, 5-a) of the statute (quoted supra) his wage earning capacity after disability should have been determined solely on the basis of actual earnings received by him during the period of disability, without regard to what he “ would have received ” if the plant had not been closed on certain days during his partial disability. Respondent, on the other hand, has taken the position, adopted by the Appellate Division, viz., “ Reduction of earnings because of economic conditions is not an element to be considered in fixing an award (Matter of Mikno v. Endicott Johnson Corp., 278 App. Div. 598). Quite evidently the Legislature intended that the term1 actual earnings ’ should be related to ordinary full time employment, whatever that may be, otherwise an employer would be charged with consequences which had nothing to do with an industrial accident.”

Appellant and respondent agree that the portion of section 15 (subd. 5-a, supra) which provides that the board may fix a reasonable wage earning capacity when there have been no “ actual earnings ”, is not applicable to this case which is controlled by the following provision of that statute, viz., ‘ The wage earning capacity of an injured employee in cases of partial disability shall be determined by his actual earnings ” (emphasis supplied).

On several occasions we have reviewed cases involving the interpretation of the phrase “ actual earnings ” on which occasions we have indicated that, for the purpose of compensation, earnings actually received by a claimant are the statutory measure of wage earning capacity after disability. (See Matter of Santo v. Symington Mach. Co., 262 N. Y. 653; Matter of Wood v. Seneca Iron & Steel Co., 271 N. Y. 642.)

In Matter of Matise v. Munro Waterproofing Co. (293 N. Y. 496) claimant — who sought compensation for partial disability —• established average weekly earnings before disability of $53.85. During the period of disability, the wages actually received by claimant amounted to $17 per week. However, relying upon medical evidence presented to it, the board found that claimant had an earning capacity after disability which was 50% of his former full-time earnings. In an-milli-ng the award made upon that finding, this court relied upon subdivision 5-a of section 15 of the Workmen’s Compensation Law. We pointed out that, prior to the enactment of that statutory provision defining “wage earning capacity,” evidence of “ actual earnings during the period of disability was not the sole admissible evidence ” of decreased earning capacity for the purpose of partial disability compensation. In addition it was said (p. 500): “ Since the addition to the statute [of § 15, subd. 5-a], where claimant has no actual earnings the Board may still take and consider evidence of capacity and fix a reasonable compensation rate if not in excess of 75% of the former full time actual earnings of the injured employee (Matter of Sammis v. Queens Borough Gas & Elec. Co., 257 App. Div. 58). But where actual earnings during the period of the disability are established, wage earning capacity must be determined exclusively by the actual earnings of the injured employee without evidence of capacity to earn more or less during such disability period, as part of the formula by which the compensation rate is determined (Matter of Santo v. Symington Machine Co., 237 App. Div. 242; Matter of Smith v. Tonawanda Paper Co., Inc., 238 App. Div. 690; Matter of Dalberth v. Iuppa & Battle Co., 262 N. Y. 537).” (Emphasis supplied.).

In the case we now review we conclude that claimant’s wage earning capacity after disability should be determined on the basis of wages actually received by him during the period of partial disability, without regard for amounts the board thought claimant would have received had not respondent closed its plant on certain days during the period in question.

In affirming the action of the compensation board charging claimant with wages he would have made, the Appellate Division based its decision upon the conclusion that otherwise an employer would be charged with consequences, which had nothing to do with an industrial accident ” in violation of the purpose, of the Workmen’s Compensation statute.. That is the same argument advanced in this court, without success, at the time we considered Matter of Santo v. Symington Mach. Co. (supra). With regard to the claim, made in the Santo, case — that earnings actually received reflect in part general economic conditions and hence are not a component measure of wage earning capacity under the compensation statute — the Appellate Division, in deciding that case (237 App. Div. 242), said at page 245.' “ A claimant who sustains injuries when wages generally are high and who is thus earning a high rate of pay, receives compensation at a disproportionately high rate whenever such compensation continues into a period when there is a general lowering of the scale of wages; conversely, a claimant who sustains injuries when wages generally are low and his earnings are small, receives compensation at a disproportionately low rate if his compensation continues into a period when the general level of the labor market has risen. In the former instance, the employee profits at the expense of the employer; in the latter, the advantage is with the employer to the disadvantage of the employee. Probably such a result was not contemplated by the Legislature, for the Workmen’s Compensation Law seeks to achieve an equitable adjustment between employer and employee. However that may be, the formula as to wage rate has been stated in the statute in clear and unmistakable language. If any change is to be brought about, it must be by amendment to the statute. The legislative, not the judicial, function must be invoked ” (emphasis supplied).

Despite that statement, made more than twenty years ago, and despite cases (discussed supra), subsequently decided by this court in which we have upheld wages actually received as the true test of wage earning capacity, the Legislature has not seen fit to change or amend the clear language of the Workmen’s Compensation Law (§ 15, subd. 5-a), upon which our present decision turns. In that circumstance, and in view of prior decisions of this court, we think the board erred in charging claimant with wages not received by him in determining his wage earning capacity for the purpose of partial disability compensation.

Accordingly, the order of the Appellate Division should be reversed, the award of the Workmen’s Compensation Board annulled, with costs, and the matter remitted to the Workmen’s Compensation Board for ap award not inconsistent with this opinion.

Desmond, J.

(dissenting). The measure of workmen’s compensation payments for temporary partial disability is “ two-thirds of the difference between the injured employee’s average weekly wages before the accident and his wage earning capacity after the accident ” (Workmen’s Compensation Law, § 15, subd. 5). Subdivision 5-a of section 15 says that “ wage earning capacity ” of such temporarily and partially disabled employees shall be determined by “ actual earnings ”, if any. These two subdivisions, read together, mean, to my mind, that in measuring after-accident earning capacity ” the board must take the wage rate the worker actually earns, not some theoretical, potential, or suppositious higher or lower rate. Thus, if a worker made $90 per week before injury and $60 afterwards, he is to be awarded two thirds of the difference, or $20 per week. But if that same man, shown by actual figures to have an after-accident earning capacity of $60 per week, is idle for a period, because of a strike of someone supplying materials to his employer, the latter fact does not change the physical, undisputed fact of his actual earning capacity of $60 per week. If that were not so, his earning capacity ”, which in fact remained at $60 per week, would have to be determined, for that period, at zero, just because the plant had to close temporarily for reasons not connected with his ‘ ‘ earning capacity ’ ’. If general economic conditions, or fluctuation in demand, or change of market, reduces, permanently or semipermanently, days of employment, a worker’s earning capacity ” is in fact reduced. But if his plant’s shutdown is because of some mechanical failure therein or because of some strike in a supplier’s plant, the worker’s actual earning capacity ” remains unchanged by such temporary stoppages. I do not think any of the cited cases contradict that.

I favor affirmance.

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

Order reversed, etc.


source: Caselaw Access Project

author: Vaw Voorhis, J.

license: Public Domain

text:
    In the Matter of Helen Cherkis, Respondent, against Vincent R. Impellitteri, as Mayor of the City of New York, Appellant.
    Argued March 11, 1954;
    decided May 27, 1954.

      Adrian P. Burke, Corporation Counsel (Michael A. Castaldi, Seymour B. Quel, W. Bernard Richland, Bernard Friedlander and Barbara Carroll of counsel), for appellant.
    I. Reports of the commissioner of investigation to the Mayor are papers prepared for use in an investigation within the meaning of sections 893 and 894 of the charter, and are therefore protected from taxpayer inspection, regardless of whether the investigation is continuing or has terminated. (Matter of Hirshfield v. Craig, 239 N. Y. 98; Matter of Hertle [Ahearn], 120 App. Div. 717, 190 N. Y. 531; Matter of Murtagh v. Leibowitz, 303 N. Y. 311; People ex rel. Westray v. Mayor of City of N. Y., 16 Hun 309, 82 N. Y. 491; Matter of Costello [Kreutzer], 202 Misc. 51; Matter of Rubel Corp. [McGann], 295 N. Y. 638; Matter of Walthaw Corp. [President of Borough of Manhattan], 295 N. Y. 700.) II. The legislative history of the charter provisions governing the department of investigation and regulating inspection of papers of city agencies by taxpayers, as well as the institutional history of the department of investigation, demonstrate that such department was created to function primarily as a confidential staff agency supplying information to the Mayor, with statutory protection against taxpayer inspection of its reports and other papers. III. An interpretation of the charter sanctioning compulsory publication of reports of the commissioner of investigation would contravene the public policy protecting the papers of official investigating agencies from prejudicial disclosure. (People ex rel. Woodill v. Fosdick, 141 App. Div. 450; Lewis v. Roux Trucking Corp., 222 App. Div. 204; Heaphy v. Mandio, 278 App. Div. 579; Matter of Porteous, 50 N. Y. St. Dept. Rep. 28; State v. Freedy, 198 Wis. 388.) IV. The harmful consequences and infringements of civil liberties, which would result from the interpretation of the charter adopted below, are compelling evidence that such interpretation should be rejected. (People v. Ryan, 274 N. Y. 149; Matter of Rouss, 221 N. Y. 81; Briarcliff Lodge Hotel v. Citizen-Sentinel Publishers, 260 N. Y. 106; Mack, Miller Candle Co. v. MacMillan Co., 239 App. Div. 738; Farrell v. New York Evening Post, 167 Misc. 412; Matter of Dairymen’s Co-op. Assn. v. Murtagh, 274 App. Div. 591, 299 N. Y. 634.) V. Section 51 of the General Municipal Law and section 66 of the Public Officers Law do not apply to reports submitted to the Mayor by the commissioner of investigation. (Matter of Egan v. Board of Water Supply, 205 N. Y. 147; Hale v. City of New York, 251 App. Div. 826; Matter of Natelson v. Portfolio, 291 N. Y. 290; Matter of Blandford v. McClellan, 173 Misc. 15; People ex rel. Scweller v. Prendergast, 89 Misc. 584; People ex rel. Stenstrom v. Harnett, 131 Misc. 75, 224 App. Div. 127, 249 N. Y. 606.)

      Hotvard M. Squadron and Lois Waldman for respondent. I.
    The petition herein, seeking an inspection of the report of the commissioner of investigation concerning his inquiry into charges of waste and corruption in the department of correction, states a cause of action under the taxpayer inspection provisions of the New York City Charter and State statute. (Matter of Ihrig v. Williams, 181 App. Div. 865; Matter of Egan v. Board of Water Supply, 148 App. Div. 177, 205 N. Y. 147; Matter of North v. Foley, 238 App. Div. 731; Matter of Becker v. Lunn, 200 App. Div. 178; Matter of Sosa v. Lincoln Hosp. of City of N. Y., 190 Misc. 448; Matter of Birenbaum v. Carey, 175 Misc. 351; Matter of Sears Roebuck & Co. v. Hoyt, 202 Misc. 43; Matter of Allen, 205 N. Y. 158; Matter of Coopersberg v. Taylor, 148 Misc. 824; Matter of Zuppa v. Maltbie, 190 Misc. 778.) II. The exception to the inspection provisions of sections 893 and 894 of the City Charter, which is the sole legal ground relied upon by appellant herein for his resistance to inspection, has no application to the report sought to be inspected by petitioner. (Hickman v. Taylor, 329 U. S. 495; People ex rel. Lemon v. Supreme Court, 245 N. Y. 24; Matter of Herlands v. Surpless, 258 App. Div. 275, 282 N. Y. 647.) III. The policy arguments raised by appellant are insubstantial and at variance with the plain command of the inspection statutes and the policy they represent. Appellant’s claim of immunity for all papers of the department of investigation must be rejected. (People ex rel. Brownell v. Higgins, 96 Misc. 485.)
   Vaw Voorhis, J.

This appeal concerns whether reports by the commissioner of investigation to the Mayor of New York City must be made public. The contention of appellant is that the commissioner is a confidential assistant to the Mayor, and that his reports to the Mayor on various aspects of the operation of the city government are intended for the Mayor’s eye alone, and are to be made public only to whatever extent the Mayor authorizes. The issue is presented by a motion to dismiss a petition instituting an article 78 proceeding, the object of which is to compel the Mayor to permit plaintiff, as a taxpayer, to inspect a report by the commissioner to the Mayor. The motion to dismiss the petition was denied at Special Term by an order which was aErmed by the Appellate Division, but in a Per Curiam opinion which would limit mandatory disclosure to a final and formal report of the Commissioner of Investigation The Appellate Division said: ‘ ‘ There are obvious distinctions between papers for use in an investigation and a culminating oEcial report at the conclusion of the investigation. That the papers are free from disclosure does not compel the conclusion either in public policy or legal construction that the final report should be. ’ ’ The reasoning of Special Term would have required testimony and all preliminary steps taken by the commissioner to be publicized. Although what the Appellate Division required to be made public is more limited than Special Term, the order was aErmed inasmuch as the Appellate Division considered that there must be public inspection to the extent indicated above, and that if any inspection could be ordered the motion to dismiss the petition should be denied.

A dissenting opinion was written at the Appellate Division by Mr. Justice Bbeitel.

The genesis of this controversy was a letter dated June 27, 1951, written to the Mayor by Alfred E. Santangelo, which contained several charges reflecting upon the conduct of the commissioner of correction. The two most provocative of these charges were that special favors had been granted to a prisoner at Bikers Island, and that the correction commissioner had engaged in anti-Semitism by discriminating against employees in the department of correction.

The petition alleges that in July, 1951, the Mayor directed the commissioner of investigation to conduct an investigation into these charges, that such an investigation was made lasting more than eight months, that the commissioner of investigation delivered a complete report to the Mayor in May, 1952, but that this report has not been made public notwithstanding demands made June 18 and July 11, 1952, by the American Jewish Congress, and a further demand made by petitioner January 30, 1953. On June 23,1952, the deputy mayor answered one of the letters from the American Jewish Congress by stating: <£ The Mayor has requested me to convey to you the information that Commissioner Shiels has filed his report indicating that the proof submitted failed to substantiate any of the charges made. In the absence of evidence sufficient to support the charges, no further action is warranted.” Answering the demand by petitioner, the deputy mayor wrote: ‘£ In keeping with an opinion of the Corporation Counsel, the reports of the Commission of Investigation to the Mayor are confidential.”

The functions, powers and duties of the commissioner of investigation are set forth in section 803 of the City Charter. That section states:

£ £ § 803. Powers and duties. — The Commissioner:

££ 1. Shall make any investigation directed by the mayor or the council.

£< 2. Is authorized and empowered to make any study or investigation which in his opinion may be in the best interests of the city, including but not limited to investigations of the affairs, functions, accounts, methods, personnel or efficiency of any agency.”

The following section (804) states that££ There shall be a complaint bureau in the department which shall receive complaints from the public.” The next section (805) empowers the commissioner of investigation and his deputies to compel the attendance of witnesses, to administer oaths and to examine such persons as he may deem necessary ££ in public or private hearings ”. Section 803-1.0 of the New York City Administrative Code describes the duties of the commissioner in reporting results of investigations, as follows:

££ § 803-1.0 Reports of commissioner. — The commissioner shall report:

££ 1. To the council, the results of any investigation directed by the council.

£t 2. To the mayor, the results of all other investigations.” Section 51 of the G-eneral Municipal Law declares papers on file in the offices of municipal corporations to be public records, and provides that they shall be open, subject to reasonable regulations to be prescribed by the officer having the custody thereof, to the inspection of any taxpayer The application of this statute is limited, however, by section 893 and section 894 of the New York City Charter, which deal specifically with the same subject. The first of these sections requires heads of departments to furnish copies of papers on demand, and the second is entitled “ Inspection by taxpayers of books and papers The latter section (894) is the one with which we are immediately concerned on this appeal. It states that “ All books, accounts .and papers in the office of any borough president or any division or bureau thereof, or in any city department or any division or bureau thereof, except the police and law departments, shall at all times be open to the inspection of any taxpayer,” subject to reasonable rules in regard to the time and manner thereof. Then follows the last sentence, identical in both sections 893 and 894 of the charter, on which the outcome of this appeal depends, reading as follows: 11 The provisions of this section shall not apply to any papers prepared by or for the comptroller for use in any proceeding to adjust or pay a claim against the city or any agency or by or for counsel for use in actions or proceedings to which the city or any agency is a party or for use in any investigation authorized by this charter.”

In addition to the privacy accorded to the records of the police and law departments, it is thus provided that inspection by taxpayers shall not be mandatory of papers prepared by or for the comptroller for use in proceedings for the adjustment or payment of claims against the city or its agencies, or by or for legal counsel for use in actions or proceedings to which the city or its agencies are parties, or of papers prepared “ for use in any investigation authorised by this charter(Italics supplied.)

The decision of this appeal depends upon the interpretation of the last phrase. It has been construed in different ways by Special Term, by the majority of the Appellate Division, First Department, and in his dissenting opinion by Associate Justice Breitel. Special Term went farthest in requiring publicity for everything. Citing an English case (Herbert v. Ashburner, 1 Wils. K. B. 297) Special Term stated that, in general, “ A municipal corporation can have no private hooks ’ The Appellate Division majority considered that stenographic minutes and other preliminary papers in the commissioner’s investigation might he kept private. The point at which Justice Breitel and the majority of the Appellate Division differed is that he did not recognize the distinction between preliminary proceedings by the commissioner of investigation and what the majority called his final report. Justice Breitel considered that whatever the commissioner does is, in a sense, preliminary to decisions to be made by the Mayor, and that his entire function in a case like this is to act as a confidential informant to the Mayor. The majority at the Appellate Division thought that preliminary papers were exempted as having been prepared “ for use ” in an investigation, but that the report of the commissioner was not a document prepared for use in any investigation ” since it expressed what was described as its final result. Differing from this idea, Justice Breitel made the following comment: “ The majority of this court distinguished the final report from the intermediate work of the investigation. The statute makes no such distinction, unless one argues that the words 1 papers * # * for use in any investigation ’ do not include a report ’. Moreover, the nature of an investigation for purposes of internal administration in a government need not result in reports of a final and culminating ’ nature. They may be tentative. They may have recommendations relating to a period of time to come. They may have alternatives. They may suggest culpability but lack sufficient proof coupled with a comment that a repetition, if it should occur, of the wrongdoing should be awaited before there be a taking of drastic action. ’ ’

Developing this thought, appellant’s counsel slates in the brief:

" A report of the Commissioner of Investigation to the Mayor, prior to its transmission to the Mayor’s office, is plainly a paper prepared for use in an investigation, since its very purpose is to be used by the Mayor in an investigation ordered by him, or undertaken by the Commissioner of Investigation on his own initiative, subject to the duty to report its results to the Mayor. Transmission to the Mayor does not alter this characteristic of the report. The investigation still continues and the report is undeniably being used therein by the Mayor while he studies it to determine what action should be taken thereon.

After examining the report, the Mayor may direct that the investigation be continued or extended, and that further reports be submitted, or that the investigation be held in abeyance pending developments. In all these instances, the report clearly continues to be used in the investigation.

If the Mayor terminates the investigation after receiving a report, it is not thereby divested of its protected Charter status as a paper prepared for use in an investigation.”

In construing these sections of the charter and of the Administrative Code, both sides have outlined the history of the office of commissioner of investigation, and have discussed the probable' public policy underlying his functions in order to aid in interpreting these clauses.

Some observations can be made with assurance. Special Term’s quoted comment that a municipal corporation can have no private papers is an overstatement, inasmuch as that would fail to concede exemption to records of the departments of police or of law, or of the comptroller in case of proceedings to adjust or pay claims against the city, or of papers prepared for use in investigations authorized by the charter. In these respects, sections 893 and 894 supersede section 51 of the General Municipal Law, and section 1545 of the Greater New York Charter, thus rendering irrelevant such decisions as Matter of Egan v. Board of Water Supply (205 N. Y. 147); Matter of North v. Foley (238 App. Div. 731); Matter of Ihrig v. Williams (181 App. Div. 865, affd. 233 N. Y. 670); Matter of Becker v. Lunn (200 App. Div. 178); Matter of Sears Roebuck & Co. v. Hoyt (202 Misc. 43); Matter of Blanshard v. O’Brien (N. Y. L. J., Dec. 6, 1933, p. 2113, col. 5). More nearly analogous is section 6 of the Executive Law (the so-called Moreland Act) authorizing the Governor “ either in person or by one or more persons appointed by him for the purpose ” to examine and investigate the management and affairs “ of any department, board, bureau or commission of the state ”. Justice Bbeitel points out in his dissenting opinion that such reports are not subject to mandatory public inspection. The investigation for the Mayor, which is the subject of this appeal, was conducted through the examination of witnesses at private hearings, as is authorized hy section 805 of the City Charter. Further analogy exists, as Justice Breitel indicated, with the State office of Commissioner of Investigation created by chapter 887 of the Laws of 1953, adding the present section 11 to the Executive Law. This officer bears a similar relationship to the Governor that the commissioner of investigation does to the Mayor. Subdivision 5 of section 11, thus added to the Executive Law, states that ‘ Any person conducting or participating in any examination or investigation who shall disclose to any person other than the governor or the commissioner the name of any witness examined, or any information obtained or given upon such examination or investigation, except as directed hy the governor, shall be guilty of a misdemeanor.”

Views of what is the best policy in such a matter bear upon our decision of this appeal only insofar as they may enlighten concerning the probable intention of the Legislature in adopting these provisions of the City Charter and of the Administrative Code. A significant study was made by the Committee on Municipal Affairs of the Association of the Bar of the City of New York, which was published in its December, 1952, Record. This study is entitled Report on Office of Commissioner of Investigation ’ ’, and it states that the committee was instructed to inquire and report as to the propriety and desirability of any changes regarding the status or functions of the commissioner, “ and particularly as to reports by the Commissioner to the Mayor ’ ’. The report recites the creation of the position in 1873, then known as commissioner of accounts, and states that during the second decade of the existence of the office, the commissioner of accounts became in effect the Mayor’s eye ”, serving principally as a means by which the Mayor could privately obtain accurate information and thus supervise the operations of the city government more effectively. The relation between the Mayor and the Commissioner of Accounts thus became one of special personal confidence; indeed, the Commissioners of Accounts were at that time the only department heads removable at the Mayor’s pleasure.” The office went into eclipse at about the time of the commencement of World War I, but the report recites its revival in more recent years. Attention is called to the circumstance that when the 1938 Charter was under consideration, several proposals were made to change the status of the commissioner from the Mayor’s eye by making it an independent position. The Bar report continues: “ There were proposals for appointment of the Commissioner by the Council; severance of all connection between the Commissioner and the Mayor,' and the various other suggestions for institution of investigations and distribution of reports. These ideas did not prevail. Only the provision that the council as well as the Mayor be authorized to direct investigations has survived, and that authority has been exercised in no more than one instance.” When the council authorizes an investigation, section 803-1.0 of the Administrative Code directs that the commissioner shall report to the council the results of any investigation directed by the council, but it provides that he shall report the results of all other investigations to the Mayor. In the case of investigations directed by the Mayor, or instituted by the commissioner upon his own initiative, his confidential relationship to the Mayor continues to exist. The Bar Association Committee’s report contains this important comment:

"Basically, the Commissioner is and should be a staff assistant to the Mayor. The quality of the City’s administration is and should be the responsibility of the Mayor. Giving the Commissioner a quasi-independent status would interfere with the effective- performance of the duties of a well-intentioned Mayor and would furnish one Who is not Well-intentioned with an opportunity to evade his proper responsibility.

" The Committee has concluded that a legislative requirement that reports of the Commissioner be public documents, in the sense that they would be available for general inspection as soon as rendered, would tend to hamper unduly the proper functioning of his Department. In many cases, it appears that inefficiency could be corrected by proper action by the Mayor Without th’e loss of morale in the affected department which Would inevitably follow publication. Moreover, it might well be that erroneous, trivial, or incompletely explored information might be unfairly exploited by political opponents.

“ The Committee is also persuaded that it would be unrealistic to- require that all reports' to- the Mayor or reports to the' Commissioner from within his Department be in writing.”

The interpretation of these statutes by the Committee on Municipal Affairs of the City Bar Association, although in no sense binding upon the courts, is well reasoned and clearly expressed, and reflects careful study by a committee of competent lawyers of both parties who have had wide experience in the municipal field. It is of some note that these lawyers exhibited no doubt that the commissioner is a confidential assistant to the Mayor (except in cases where he is directed to make reports by the city council) and that his reports to the Mayor are submitted under the seal of privacy unless the Mayor decides to reveal them. The committee recommended against a legislative enactment changing the existing law by requiring that reports of the commissioner be made available for general inspection when rendered.

Seidman in a book entitled “ Investigating Municipal Administration ” (1941) points out at pages 30, 93 and 123 that for a limited period prior to 1938, the City Charter provided that reports of investigations be submitted to the board of aldermen as well as to the' Mayor (Greater New York Charter, § 119). This was interpreted as having the effect of making- reports of the commissioner public documents. In preparing the earlier drafts of chapter 34 of the 1938 Charter, concerning the department of investigation, the charter revision commission at first carried forward the requirement of section 119 of the Greater New York Charter that reports of the commissioner of accounts should be submitted to the board of aldermen as well as to the Mayor (Documents of New York City Charter Revision Commission, 1936, vol. 9, § 9e, Columbia Law School Library, Cat. No. S. N. Y. 81, 1934-1936). The commissioner of accounts then appeared before the charter revision commission and pointed out that the requirement of the old charter that reports be presented to the board of aldermen meant, according to his understanding, that such reports had to be made public at the completion of an investigation (Minutes of Charter Revision Commission, Oct. 31, 1935, p. 5). This result was apparently thought to be undesirable by the charter revision commission when, in the preliminary draft and in the final draft of chapter 34 of the 1938 Charter, it omitted any requirement that reports be submitted either to the Mayor or to the city council. The provision of section 803-1.0 of the Administrative Code that reports be made to the council where the council has instituted the investigation was a concession to the views of those who considered that all of the commissioner’s reports should be made public, yet it fails of that effect except in instances where reports by the commissioner have been made, as they rarely are, at the instigation of the city council. When investigations have been instituted at the request of the Mayor or initiated by the commissioner himself, the report is required by section 803-1.0 of the Administrative Code to be made to the Mayor alone, thus obviating the resultant publicity where it had also been required to be rendered to the board of aldermen. Of course, sections 893 and 894 of the present charter control, and they require that inspection by taxpayers be allowed except as there limited. The question before us is whether the report in this case is exempt from inspection as having been prepared for use in an investigation, within the language of section 894. Nevertheless the history sheds light upon the construction to be placed upon that provision.

The history reveals the origin of the distinction drawn by the majority at the Appellate Division between stenographic minutes of testimony and other papers used preliminarily by the commissioner of investigation, and his “ culminating ” report to the Mayor. That distinction would not have been likely to have been suggested by the language of sections 893 or 894 of the present charter, exempting papers prepared for use in any investigation authorized by this charter.” In any event it is a distinction which arose before that phrase existed, created by the courts to prevent giving guilty parties advance notice to cover up their tracks. This distinction avoided disclosure to people being investigated, at least of stenographic minutes and other preliminary papers of the commissioner, notwithstanding the apparently mandatory language of section 1545 of the Greater New York Charter. It was in that context that Mr. Justice Cohn wrote as he did at Special Term in the case of Matter of Blanshard v. O’Brien (N. Y. L. J., Dec. 6, 1933, p. 2113, col. 5, supra). In those days there was no statutory proviso protecting against public disclosure any papers which had been prepared “ for use in any investigation authorized by tMs charter No such phrase was in the statute expressly preventing the compulsory exhibition of any records of the commissioner to persons who might have ulterior reasons for learning how much was known about their activities under investigation, or what future action might be taken against them on the basis of the commissioner’s reports, and under these circumstances the courts were loath to compel the disclosure of more than was absolutely required. The question on this appeal is whether, by inserting this phrase in sections 893 and 894 of the current charter, it was intended to embody or to render unneccessary this distinction previously drawn by the courts. If the clause had been intended as merely declaratory of this judge-made distinction, there would have been no need to insert it. The courts had already created it in applying section 1545 of the Greater New York Charter, and section 51 of the General Municipal Law which contained no such language. This distinction manifestly was created in the thought that the commissioner of accounts, as this officer was then called, did in reality occupy a confidential relationship to the Mayor, and that as much of his work as was compatible with the language of the City Charter should be kept secret except at the Mayor’s election. The now superseded requirement that the commissioner report to the board of aldermen, said the Bar Committee Report, ‘1 was studiously ignored on the ground that compliance would give warning to malefactors, and, by making the reports public records, would unfairly publicize irregularities committed without thought of wrong.” Now that the requirement that the commissioner’s reports of investigations shall always be rendered to the board of aldermen or the city council has been eliminated, there is no further occasion to preserve this refinement classifying separately papers used during the conduct of an investigation and its issue in a report to the Mayor. ■

Any investigation by the commissioner, even including his report to the Mayor, is preliminary in a certain sense, as Justice Brbitbl stated, in that the object is to keep the Mayor informed concerning the operation of the different branches and agencies and the functioning of the personnel of the city government. The vital purpose of this officer is, and always was, to act as the Mayor’s eye. There are likely to be occasions when the public disclosure of such reports would interfere with further action to be taken by the Mayor, or some other branch of the city government, or when it would, as the Bar Association’s Committee has pointed out, unfairly subject irregularities that have been committed without actual wrong to captious criticism. There are certain to be times, also, when actual wrong can most effectively be prevented or righted by executive action taken outside of the glare of the kleig lights.

The Mayor of New York City is vested with large executive responsibility. He is in a position where he is often called upon also to recommend legislation, municipal and State. The object in providing him with the services of a confidential officer of this kind was to help and not to embarrass him. If all of the reports of the commissioner are required to be made public, they will become insignificant in content, and the usefulness of the commissioner’s function will be likely to fail. That, at least, appears to be the theory on which the existing provisions of the charter and Administrative Code have been prepared.

If the commissioner is to be of value, his reports will tend to criticize the city administration rather than to praise it. It was evidently anticipated that such criticism would be constructive, in order that the Mayor might adopt helpful suggestions and make wise decisions on the basis of detailed facts submitted to him by the commissioner regarding delicate and unsatisfactory situations. The theory of these statutes, which we have to construe, is that this function can best be performed if the commissioner is held to be a confidential informant of the Mayor.

The broad extent of the commissioner’s powers is illustrated by the recent case of Matter of Dairymen’s League Co-op. Assn. v. Murtagh (274 App. Div. 591, affd. 299 N. Y. 634), where the commissioner was held to have been empowered to inquire into the names and addresses of all of the retail and chain store customers of a distributor of milk, the price per quart and the number of quarts sold, or rebates paid, and the books and records of this dealer had to be produced for the purposes of such investigation. Concerning all of this, and much more, the commissioner is empowered to inquire. It is no answer to say that the commissioner will be careful of what he puts into his reports. It is not his function to decide what information should or should not be made public. His function is to assemble and transmit to the Mayor all of the facts which the Mayor may or may not consider important in making the responsible decisions which he is required to make as the chief executive officer of the city.

The circumstance should not be ignored that under the Subversive Conduct Law (L. 1951, ch. 233, §§ 1, 8; Civil Service Law, § 12-a), the commissioner of investigation is called upon to inquire into security risks, and that the State Civil Service Commission is said to have designated twenty-six agencies of the City of New York as security agencies performing functions vital to the defense of the United States. If the order appealed from be affirmed, then the reports of such investigations, as well as of all other types of investigation by the commissioner, receive mandatory publicity.

It is a familiar canon of construction that statutes are to be interpreted so as to fulfill policies which the Legislature evidently had in mind. Some indication of that may be found in the recently adopted amendment to the Executive Law creating the office of State Commissioner of Investigation for the purpose of reporting to the Governor. This act (L. 1953, ch. 887), as has been stated above, leaves no uncertainty that the reports of this officer to the Governor are to be disclosed only at the election of the latter. The State Commissioner, bearing the same title and following the prototype of the commissioner of investigation of New York City, is not likely to have been created in a different image in this respect.

Analogies to the legislative policy in this regard can readily be found in other fields. There is no mandatory publicity of all of the records of departments of police or of law, nor of papers prepared for the city comptroller for use in adjusting or contesting claims, nor in the case of welfare records, nor of certain other kinds of municipal records. The same is true of proceedings before grand juries, of Federal Bureau of Investigation investigations, and many income tax records. The result would be different if the commissioner of investigation were a different kind of office, that is to say, if instead of being a confidential aid to the Mayor, he were an independent public officer.

The motion by appellant to dismiss the petition under section 1293 of the Civil Practice Act should be granted.

The order of the Appellate Division should be reversed, without costs, and the matter remitted to Special Term for further proceedings in accordance with this opinion; the question certified is answered in the negative.

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

Order reversed, etc.


author: Froessel, J.

text:
    In the Matter of the Accounting of Maurice Heller, as Executor of Morris A. Fischer, Deceased, Appellant-Respondent. Gussie Fischer et al., Respondents-Appellants; Samuel J. Krinn, Special Guardian for Eric Flanders and Others, Infants, Respondent-Appellant.
    Argued March 10, 1954;
    decided May 27, 1954.

      William Sonenshine, Travis 8. Levy and Joseph J. Kozinn for appellants.
    I. The trust of the residuary estate is an active trust. (Cochrane v. Schell, 140 N. Y. 516; Cooke v. Platt, 98 N. Y. 35; Moore v. Hegeman, 72 N. Y. 376; Marx v. McGlynn, 88 N. Y. 357; Matter of United States Trust Co. [Butler], 86 Misc. 603, 168 App. Div. 903, 216 N. Y. 639; Matter of Sayre, 179 App. Div. 269; Townshend v. Frommer, 125 N. Y. 446.) II. The invalid trust created by paragraph “ Second ” of the will does not present a proper case for judicial salvage. (Matter of Silsby, 229 N. Y. 396; Matter of Horner, 237 N. Y. 489; Matter of Eveland, 284 N. Y. 64; Leach v. Godwin, 198 N. Y. 35;
      Matter of Trevor, 239 N. Y. 6.) III. The trust attempted to he created for the widow failed to comply with section 18 of the Decedent Estate Law. (Matter of Bommer, 159 Misc. 511; Matter of Topazio, 175 Misc. 132; Matter of Curley, 245 App. Div. 255, 269 N. Y. 548; Matter of Eddy, 173 Misc. 723, 283 N. Y. 556; Matter of Braun, 200 Misc. 23; Banzer v. Banzer, 156 N. Y. 429; Goodwin v. Coddington, 154 N. Y. 283; Tillman v. Ogren, 227 N. Y. 495; Roseboom v. Roseboom, 81 N. Y. 356; Matter of Barrett, 141 Misc. 637; Herzog v. Title Guar. & Trust Co., 177 N. Y. 86; Eidt v. Eidt, 203 N. Y. 325.)

      Joseph Epstein for executor, respondent.
    I. The finding made by the Surrogate that the intervening trust for the infants constitutes a valid trust, and therefore measuring lives, was unwarranted as a matter of law and the reversal of that portion of the Surrogate’s decree by the Appellate Division was correct. (Matter of Hunt, 110 N. Y. 278; Matter of Trowbridge, 266 N. Y. 283; Matter of Gallien, 247 N. Y. 195; Matter of Lytell, 178 Misc. 996.) II. When an interest is given or an estate conveyed in one clause, it cannot be cut down or taken away except by express words or by clear implication, and that clear implication is contained in the instant will. (Roseboom v. Roseboom, 81 N. Y. 356; Clarke v. Leupp, 88 N. Y. 228; Campbell v. Beaumont, 91 N. Y. 464; Tillman v. Ogren, 227 N. Y. 495; Kurtz v. Wiechmann, 75 App. Div. 26; Herzog v. Title Guar. & Trust Co., 177 N. Y. 86; Taggart v. Murray, 53 N. Y. 233; Crozier v. Bray, 120 N. Y. 366; Matter of Edwards, 119 Misc. 659; Cammann v. Bailey, 210 N. Y. 19.) III. The trust created for the wife is not so closely blended with the direction that the executor hold the residue during the infancy of two infants as to create intestacy. (Jacoby v. Jacoby, 188 N. Y. 124; Matter of De Rycke, 99 App. Div. 596; Matter of Berliner, 267 App. Div. 1000; Matter of Berkel, 184 Misc. 711; Kalish v. Kalish, 166 N. Y. 368; Matter of Silsby, 229 N. Y. 396; Matter of Horner, 237 N. Y. 489; Matter of Durand, 250 N. Y. 45; Oliver v. Wells, 254 N. Y. 451; Matter of Fordham, 235 N. Y. 384; Matter of Lawrence, 238 N. Y. 116; United States Trust Co. v. Hogencamp, 191 N. Y. 281.) IV. The mandate of the will is not to be nullified by decree of the court. (Robinson v. Martin, 200 N. Y. 159; Matter of Forde, 286 N. Y. 125; Vernon v. Vernon, 53 N. Y. 351; Manice v. Manice, 43 N. Y. 303; Everitt v. Everitt, 29 N. Y. 39; Smith v. Edwards, 88 N. Y. 92; Bliven v. Seymour, 88 N. Y. 469; Matter of Colegrove, 221 N. Y. 455; Masterson v. Townshend, 123 N. Y. 458; Williams v. Petit, 138 App. Div. 394; Matter of Kane, 161 Misc. 767, 251 App. Div. 710.) V. The law favors construction which will sustain the validity of a will rather than one which will result in intestacy. (Matter of Hitchcock, 222 N. Y. 57; Matter of Mount, 185 N. Y. 162; Kalish v. Kalish, 166 N. Y. 368; Connelly v. O’Brien, 166 N. Y. 406; Matter of Title Guar. & Trust Co., 195 N. Y. 339.)

      Samuel J. Krinn, special guardian for Eric Flanders and others, infants, respondent.
    I. The findings made by the Surrogate that the intervening trust for the infants constitutes a valid trust, and therefore measuring lives, was unwarranted as a matter of law and the reversal of that portion of the Surrogate’s decree by the Appellate Division was correct. (Matter of Hunt, 110 N. Y. 278; Matter of Trowbridge, 266 N. Y. 283; Matter of Gallien, 247 N. Y. 195; Matter of Lytell, 178 Misc. 996.) II. Where an estate is given in one part of a will in clear and decisive terms, it cannot be taken away or cut down by raising a doubt as to the meaning of a subsequent clause not as clear and decisive as the words giving the estate. (Banzer v. Banzer, 156 N. Y. 429; Tillman v. Ogren, 227 N. Y. 495.) III. The provision for the mother of the testator is an annuity and not a trust. (Pierrepont v. Edwards, 25 N. Y. 128; Matter of Vanderbilt, 229 App. Div. 574; Matter of Whitcomb, 175 Misc. 564; Matter of Savin, 171 Misc. 818; Matter of Ingraham, 158 Misc. 603; Matter of Anderson, 143 Misc. 250; Matter of Mehler, 143 Misc. 63; People’s Trust Co. v. Flynn, 188 N. Y. 385; Buchanan v. Little, 154 N. Y. 147; Matter of Schutz, 111 Misc. 477.) IV. The trust created for the wife and the direction that the executors hold the residue during the infancy of the two infants are not so intermingled or interdependent as to result in intestacy. (Jacoby v. Jacoby, 188 N. Y. 124; Matter of De Rycke, 99 App. Div. 596; Matter of Berliner, 267 App. Div. 1000; Matter of Berkel, 184 Misc. 711; Matter of Miner, 146 N. Y. 121; Salter v. Drowne, 205 N. Y. 204.) Y. When invalid provisions of a will may be eliminated so as to leave intact the parts that are valid and to preserve the general plan of the testator, such a construction will be adopted as will prevent intestacy, either partial or total as the case may be. (Kalish v. Kalish, 166 N. Y. 368; Manice v. Manice, 43 N. Y. 303; Matter of Colegrove, 221 N. Y. 455; Masterson v. Townshend, 123 N. Y. 458; Hardenbergh v. McCarthy, 130 App. Div. 538; Matter of Eveland, 284 N. Y. 64; Beardsley v. Hotchkiss, 96 N. Y. 201; Matter of Trevor, 239 N. Y. 6.) VI. The law favors construction which will sustain the validity of a will rather than one which will result in intestacy. (Matter of Hitchcock, 222 N. Y. 57; Matter of Mount, 185 N. Y. 162; Connelly v. O’Brien, 166 N. Y. 406; Moore v. Lyons, 25 Wend. 118; Sage v. Wheeler, 3 App. Div. 38; Matter of Brown, 93 N. Y. 295; Delafield v. Shipman, 103 N. Y. 463; Stokes v. Weston, 142 N. Y. 433; Bisson v. West Shore R. R. Co., 143 N. Y. 125; Corse v. Chapman, 153 N. Y. 466; Hersee v. Simpson, 154 N. Y. 496; Goodwin v. Coddington, 154 N. Y. 283; Matter of Brown [Merriman], 154 N. Y. 313.)
   Froessel, J.

Morris A. Fischer, a resident of Bronx County, died testate on May 5, 1951, survived by his widow, four children, his mother, a brother, two sisters and other kin. Testator’s estate, consisting of real and personal property, has a gross value of approximately $152,000. Following a contested probate proceeding, his will was admitted to probate. The widow filed a notice of election to take her share of the estate as in intestacy, pursuant to section 18 of the Decedent Estate Law.

In due course the executor brought this proceeding for the judicial settlement of his account, and for a construction of the will as to (1) whether testator has provided for his widow pursuant to section 18 of the Decedent Estate Law; (2) the manner in which the executor is to establish the fund intended for payment of an annuity to decedent’s mother, and (3) what effect, if any, is to be given to the direction suspending the vesting of the corpus of the remainder during the minority of Eric Flanders and Bandy Garfinkle, both of whom were.infants under the age of fourteen at the commencement of this proceeding.

In paragraph First of decedent’s will he gave his brother four parcels of real estate; in paragraph Second he gave his wife, “ in lieu of all claims ” as his surviving spouse, “ one-third of all my property ”, all but $2,500 of which is to be held in trust during her life, the income therefrom to be paid to her quarterannually; upon her death, the principal is to become part of his residuary estate. In paragraph Third he set up a trust out of the residuary estate, which he charged with an annuity of $25 per week in favor of his mother for her life, the balance “to be held until my grandchild Eric Flanders shall be of full age and reach Ms twenty-first birthday. In the event my said grandchild shall not reach the age of twenty-one and shall sooner decease, I direct that the said trust be held until my grandnephew Bandy G-areinkle * * * shall be of the age of 21 years or shall sooner terminate by death, upon the occurrence of said contingencies, that is, the death of both my grandcMld Eric Flanders in the event he does not reach age of 21 and the demise of my grandnephew Bandy Garfíñele in the event he does not reach the age of 21, the trust herein provided for shall terminate ”. He then directs that the balance of the trust corpus be distributed among two sisters and a daughter or their issue surviving, two sons and a grandchild or their next-of-kin surviving, two nephews and a niece or their issue surviving, and two grandnephews or the survivor of them.

The Surrogate ruled that the provisions for the widow accorded with section 18 of the Decedent Estate Law. However, he concluded that the trust set up for her unlawfully suspends the power of alienation by reason of the fact that it might be measured, in addition to her own life, by the lives of Eric Flanders (the grandson) and Bandy Garfinkle (the grandnephew). In an attempt to effectuate as far as possible the intention of the testator, the Surrogate ordered that the trust for the widow be preserved during her life and until the majority of the grandson or his prior decease; he deleted the tMrd measuring life of the grandnephew. Having determined that the remainder interests of the residuary legatees are contingent and therefore not subject to acceleration, he directed that the residue of the corpus of the widow’s trust pass as intestate property to testator’s distributees upon the termination of the two measuring lives.

The Surrogate construed the gift to testator’s mother in the third paragraph as an annuity chargeable upon the residuary estate, and held, accordingly, that her life is not a measuring life of the residuary trust created in that paragraph and that said trust, except as to the principal of the widow’s trust as hereinbefore noted, is valid.

Upon appeal, the Appellate Division modified the decree of the Surrogate. That court concurred in so much of the decision of the Surrogate as determined (1) that testator had duly provided for his widow pursuant to section 18 of the Decedent Estate Law; (2) that the gift to testator’s mother is an annuity, and therefore does not constitute a measuring life of the residuary trust, and (3) that the trust for the widow unlawfully suspends the power of alienation for three lives. It differed with the Surrogate as to the disposition of the corpus of the widow’s trust, and adopted the view that since there is no provision for the payment of income to anyone during the lives of the grandson and grand.nephew, “ their lives would merely provide an hiatus or period of delay on passing the estate to the residuary legatees ’ ’ should the widow predecease these two minors. After pointing out that any accumulation of income during their minorities would be illegal inasmuch as some of the residuary legatees who would be benefited thereby are adults, it expunged the measuring lives of both the grandson and grandnephew ‘ for •illegality ” and, on the hypothesis that the residuary trust was “ dry or passive ”, it held that said trust would be deemed executed ” by the passing of the corpus of the widow’s trust to the residuary legatees immediately upon her death.

Appellant-distributees appeal to this court from the order of modification (except such part thereof as pertains to costs, disbursements and counsel fees) by leave of the Appellate Division which has certified the following questions:

“ 1. Do the provisions of Paragraph ‘ Second ’ of the decedent’s Will, purporting to create a trust for the benefit of his widow, comply with the requirements of Section 18 of the decedent Estate Law so as to bar the widow’s right of election under said section?

“ 2. Does the trust created by Paragraph ‘ Second ’ of the decedent’s Will present such a proper case for Judicial excision for invalidity of two of the three measuring lives so that it can be upheld to the extent of preserving such part thereof as creates a life estate in trust for the decedent’s widow?

“ 3. Does the trust created by Paragraph 1 Second ’ of the decedent’s Will present such a proper case for Judicial excision of two of the three measuring lives for invalidity so that it can be upheld to the extent of preserving such part thereof as pertains to the interests of the persons named in Paragraph ‘ Third ’ of the decedent’s Will as remaindermen of said trust? ”

Upon this appeal appellants contend that the trust created for the widow failed to comply with section 18 of the Decedent Estate Law, that the trust of the residuary estate is an active trust, and that the widow’s trust may not be judicially salvaged. They do not on this appeal challenge the manifestly correct holdings of the lower courts that the gift to the mother under the trust provisions of the third paragraph is an annuity (Pierrepont v. Edwards, 25 N. Y. 128; Matter of Whitcomb, 175 Misc. 564; Matter of Ingraham, 158 Misc. 602; Matter of Anderson, 143 Misc. 250), and that, as a consequence, her life is not a measuring life of the residuary trust (People’s Trust Co. v. Flynn, 188 N. Y. 385; Buchanan v. Little, 154 N. Y. 147; Matter of Schutz, 177 Misc. 477).

We are in agreement with the courts below that the provisions in the will for the widow are in conformance with section 18 of the Decedent Estate Law. We turn then to the perpetuities aspect of the case.

It is settled beyond dispute that in determining whether a will has illegally suspended the power of alienation, the courts will look to what might have happened under the terms of the will rather than to what has actually happened since the death of the testator (Matter of Friend, 283 N. Y. 200, 206, 208-209; Matter of Durand, 250 N. Y. 45, 53; Matter of Perkins, 245 N. Y. 478, 481-482; Monypeny v. Monypeny, 202 N. Y. 90, 93; Matter of Wilcox, 194 N. Y. 288, 295; Schettler v. Smith, 41 N. Y. 328, 334-335). By the terms of the second and third paragraphs of the instant will, the absolute power to alienate the corpus of the widow’s trust might be suspended for the duration of the lives of the widow, the grandson and the grandnephew, since during those lives the residuary legatees who would he entitled to take in every event are not capable of ascertainment. Thus testator has violated our statutes prohibiting the suspension of the absolute power of alienation during more than two lives (Beal Property Law, § 42; Personal Property Law, § 11). However, it should be noted that such illegal suspension pertains only to the corpus of the widow’s trust. The residuary trust, exclusive of the amount of said corpus, is not violative of the suspension statutes, since no more than two lives are involved. The courts below therefore properly and necessarily deleted the third measuring life, viz., that of the grandnephew.

We are likewise in accord with the holdings below that the trust for the widow may be salvaged. That trust, standing by itself, is valid and readily separable from the ulterior provisions of the will. In line with the policy of the courts to carry out the intention of the testator as far as possible, and since that can be accomplished by excising the invalid provisions of the will while leaving the valid parts intact, the trust for the widow may be upheld (Matter of Lyons, 271 N. Y. 204; Matter of Durand, supra; Matter of Silsby, 229 N. Y. 396; Davis v. MacMahon, 161 App. Div. 458, affd. 214 N. Y. 614; Matter of Wilcox, supra; Kalish v. Kalish, 166 N. Y. 368, 375). By sustaining that trust, we effectuate testator’s unequivocally expressed desire to defeat the widow’s right of election.

We are also of the view that the corpus of the widow’s trust may be preserved during the minority of the grandson or until his death prior thereto. Testator’s purpose in so providing was manifestly twofold — (1) to assure that there would be an adequate principal in the residuary trust to pay his aged mother’s annuity in the event his widow should predecease her, and (2) to permit the accumulation of income for the benefit of the residuary legatees.

The former was undoubtedly his primary object and a valid trust. A trust to pay an annuity out of rents and profits of real property is expressly recognized by section 96 (subds. 2, 3) of the Real Property Law. And a trust to pay an annuity out of personal property is likewise valid (Cochrane v. Schell, 140 N. Y. 516).

It is true that his secondary object would result in an unlawful accumulation by reason of the fact that some of the beneficiaries thereof are adults (Real Property Law, § 61; Personal Property Law, § 16; Hawthorne v. Smith, 273 N. Y. 291, 298; Equitable Trust Co. v. Miller, 197 App. Div. 391, affd. 233 N. Y. 650; Kalish v. Kalish, supra, pp. 372-373; Cochrane v. Schell, supra, pp. 527-528; Barbour v. De Forest, 95 N. Y. 13; Pray v. Hegeman, 92 N. Y. 508; Manice v. Manice, 43 N. Y. 303, 377). However, provisions of a will resulting in an invalid accumulation will not affect the validity of a primary direction to pay an annuity (Cochrane v. Schell, supra, p. 536; see Hascall v. King, 162 N. Y. 134, 152-153).

That being so, we cannot concur in the conclusion of the Appellate Division that the residuary trust was <£ dry or passive ”, and that as a consequence the corpus of the widow’s trust should be paid to the residuary legatees immediately upon her death. The determination of that court as to the passiveness of the residuary trust was predicated on the reasoning that the only duty of the trustees with' respect to the corpus was to hold it during the period of the trust ‘1 merely to pass it on to the residuary legatees at some later date ’ ’. However, the terms of the will definitely provide otherwise.

Upon the widow’s death, the corpus of her trust will become part of the residuary trust created in the third paragraph of the will. Testator there gives the remainder of his estate to his executors and trustees in trust££ to receive the rents, profits and income thereof ” to the uses and purposes following, the first of which is: £ 6 To pay over to my mother Annie Fischer * * * during her life time the sum of ($25.00) Twenty-five Dollars per week.”

The duty of the trustees to pay this annuity to testator’s mother and the broad powers conferred upon them under paragraph Fourth of the will clearly bring the trust within the definition of an active trust as contained in Townshend v. Frommer (125 N. Y. 446, 458): " inasmuch as the test of activity is not in the importance, or in the obligatory nature of the duty to be performed by the trustee, but consists in what the trust empowers and demands of him. If it is something which the grantor could do, and, in order to carry out, would require action on Ms part, then the trust created is an active trust; notwithstanding that, by reason of the statute, the act or duty may be one which, when directed to be performed by a trustee, the statute might execute when the time for performance arrived.”

Thus the Appellate Division erred in holding that this was a dry or passive ” trust. We do not know how long the mother may live, and during her lifetime, which may well extend until the grandson becomes twenty-one or sooner dies, she is ,■ entitled to an annuity of $1,300 each year. In the meantime, the trust estate must be invested, the income received and paid out, as well as portions of the principal, for the income alone is manifestly insufficient. Under these circumstances, we are dealing with an active trust. And here it may be noted that the mother may not elect to receive in lieu of her annuity the capital sum necessary to produce the payments directed (Matter of Maybaum, 296 N. Y. 201, 205). Whether the trust may be deemed executed after the death of both the widow and the mother and before the grandson reaches Ms majority or sooner dies, need not now be determined.

Z The question remains as to what disposition is to be made of the residue of the corpus of the widow’s trust in the event of the grandson’s attaining majority or his prior death. In addition to naming specific remaindermen, testator provided for substituted gifts based upon survivorship at the termination of the residuary estate. Survivorship at the time of distribution of the residuary estate is thus a condition of the gift to the remaindermen (New York Life Ins. & Trust Co. v. Winthrop, 237 N. Y. 93, 103), and, accordingly, their interests are contingent (Matter of Crane, 164 N. Y. 71; Matter of Baer v. Hendricks, 147 N. Y. 348; Purdy v. Hayt, 92 N. Y. 446; Matter of Meahl, 241 App. Div. 333). The remainder may not, there-Í fore, be accelerated, for it has long been settled in this State I that the law will not accelerate a contingent remainder (Matter of von Isenburg, 306 N. Y. 847; Matter of Durand, supra; Matter of Silsby, supra; Benedict v. Salmon, 177 App. Div. 385, affd. 223 N. Y. 707; Davis v. MacMahon, supra; Brinkerhoff v. Seabury, 137 App. Div. 916, affd. 201 N. Y. 559; Matter of Byrnes, 149 Misc. 449). It follows that the residue of the corpus of the widow’s trust must pass as intestate property to testator’s \ distributees upon the termination of the grandson’s measur- ^ ing life.

By the foregoing construction of this will, a substantial portion of testator’s estate will pass to his brother, a lawful spouse’s share to his wife, an annuity to his mother for life, the balance of the widow’s trust by intestacy to his four children, and the balance, if any, of the remaining residuary estate to the remaindermen. This conforms with the dominant principle of carrying out as far as possible within the meaning of the statute ” the intention of the testator (Matter of Durand, supra, pp. 53, 55).

Accordingly, the order of the Appellate Division, insofar as appealed from, should be modified in accordance with the opinion herein, and, as so modified, affirmed, with costs, payable out of the estate, to all parties appearing separately and filing separate briefs. The first question certified is answered in the affirmative; the second and third questions certified are answered in the negative.

Lewis, Ch. J., Conway, Desmond, Dye and Fuld, JJ., concur; Van Voorhis, J., dissents and votes to affirm.

Ordered accordingly.


author: Fuld, J.

text:
    In the Matter of the Claim of Edward Sullivan, Respondent, against B & A Construction, Inc., et al., Appellants. Workmen’s Compensation Board, Respondent.
    Argued April 21, 1954;
    decided June 3, 1954.

      Urban 8. Mulvehill for B & A Construction, Inc., and another, appellants.
    I. The accident of March 24, 1948, was not the proximate cause of the third accident which occurred on June 30,1950. (Matter of Brown v. New York State Training School, 285 N. Y. 37; Laidlaw v. Sage, 158 N. Y. 73; Palsgraf v. Long Is. R. R. Co., 248 N. Y. 339; Matter of Saenger v. Locke, 220 N. Y. 556; Matter of Fischer v. Hoe & Co., 224 App. Div. 335; Matter of Ruzsjak v. Metal Stamping Co., 234 App. Div. 642, 259 N. Y. 575; Matter of Chiodo v. Newhall Co., 228 App. Div. 740, 254 N. Y. 534; Colvin v. Emmons & Whitehead, 216 App. Div. 577.) II. There is no substantial evidence to support the award.

      John T. DeGraff and John E. Holt-Harris, Jr., for A. L. Turner and another, appellants.
    The automobile accident was caused not by the “ locking ” of claimant’s knee but by the mechanical failure of a dilapidated 1936 Ford automobile.

      Nathaniel L. Goldstein, Attorney-General (Daniel Polansky, Wendell P. Brown, Boy Wiedersum and Gilbert M. Landy of counsel), for Workmen’s Compensation Board, respondent.
    The accident which the claimant sustained on June 30, 1950, was a consequential accident which was caused by the injuries which he had suffered in the accidents of March 24, 1948, and June 17,1949. (Matter of Swanson v. Williams & Co., 304 N. Y. 624; Matter of Prentice v. Weeks, 264 N. Y. 507; Matter of Ruzsjak v. Metal Stamping Co., 259 N. Y. 575; Matter of Chiodo v. Newhall Co., 254 N. Y. 534; Matter of McNaught v. Louris Amusement Corp., 270 App. Div. 100; Matter of Murray v. Interborough R. T. Co., 249 App. Div. 883, 253 App. Div. 848; Matter of Hall v. Chapman, 257 App. Div. 1091; Matter of Malgieri v. General Elec. Co., 258 N. Y. 620; Matter of Parchefsky v. Kroll Bros., 267 N. Y. 410.)
   Fuld, J.

Claimant, a painter by trade, sustained, in the course of two different employments, compensable injuries to his right knee. In March of 1948, while in the employ of appellant B & A Construction, Inc., he slipped on a paint brush and caught his right leg on a step; again, in June, 1949, while employed by appellant A. L. Turner, a ladder which he was climbing broke and he struck and twisted the same leg. As a result of these injuries, his right knee, previously sound, acquired a pronounced tendency to “ lock,” so that claimant, until he could shake ” it back into place, found himself — as he put it — “ paralyzed * * * from my knee to my hip,” and deprived of all use and control of his right leg. From the report of a doctor, made after the second accident, it appears that even mild trauma such as that caused by stepping over a small stone on the road or a high place in the sidewalk * * * [created] the sensation of the knee giving away.’ ”

Claimant suffered this locking, and the accompanying pain and paralysis, frequently, not only while walking but, indeed, whenever he put pressure on his knee. Driving an automobile became particularly hazardous; claimant himself testified that once or twice a week,” in applying pressure to the brake, his knee slipped into such a position that “ he would have to stop and unlock it.” Nevertheless, he continued to operate his car.

On June 30,1950, a year after the second injury, claimant was hurt in an automobile accident, and it is solely from that accident that the present award stems. He was driving in the state of Maryland, at a speed of between forty and forty-five miles an hour, when “ something [went] haywire with ” the steering wheel; the tie rod, by which the front wheels are controlled, had, it subsequently appeared, broken. Although in the past claimant had always succeeded in stopping his car, on this occasion, when he tried to press down on the brake, nothing happened. His knee locked,” it was “ paralyzed ” and useless, and the car, out of control, careened off the highway, into the woods, and struck a tree. Claimant lay unconscious for some time and, when taken to a local hospital, was found to have suffered a comminuted fracture of the right femur.

Having previously received an award for his earlier injuries, claimant now seeks compensation for the injuries sustained in the automobile accident. This latest mishap did not arise in the course of his employment, for, concededly, claimant was driving on his own personal business. An award is, therefore, warranted only if the automobile accident and the consequent injuries resulted directly and naturally from claimant’s prior injuries and the disability thereby produced. (See, e.g., Matter of Robbins v. Frohlich, 303 N. Y. 987; Matter of Brown v. New York State Training School, 285 N. Y. 37; Matter of Fischer v. Hoe & Co., 224 App. Div. 335; Yarbrough v. Polar Ice & Fuel Co., 118 Ind. App. 321; see, also, Larson on Workmen’s Compensation [1952], § 13, pp. 183 et seq; cf. Matter of Chiodo v. Newhall Co., 254 N. Y. 534; Matter of Murray v. Interborough R. T. Co., 253 App. Div. 848, 249 App.' Div. 883.) If such injuries only remotely contributed to the accident on the road, then, claimant is not entitled to compensation. Or, to express it somewhat differently, if claimant is to recover, the disability occasioned by the earlier accidents must have been a proximate, not simply a “ but for,” cause of his latest mishap.

Here, quite obviously, it was claimant’s own temerity, not the physical handicap resulting from the industrial accidents, that was primarily responsible for the later, 1950, accident. Despite his serious infirmity and despite the obvious risk involved — to innocent passers-by as well as to himself — he persisted in operating a car, indeed, in driving* at what was, for him, the immoderate speed of over forty miles an hour. Even the simple precaution of adding an auxiliary hand or left-foot brake, such as those used by others who are disabled, was omitted. Eventually, the inevitable accident occurred. "While the earlier injuries may have been a “but for” cause of the accident, they certainly did not constitute the requisite legal or proximate cause. When claimant ignored his locking knee and, without justification, continued to drive, responsibility for the accident and its consequences could no longer be ascribed to his employment-created disability.

Had claimant been ignorant of the extent of his disability, had his knee not previously locked while driving, the case might conceivably have been different. In the light of the record before us, however, it is indisputable that claimant’s own act of driving, supervening between the industrial accidents "and the car crash, broke the essential chain of causation.

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

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

Order reversed, etc.