author: Medaue, J.

text:
    In the Matter of Max Epstein, Respondent, against Board of Regents of the University of the State of New York, Appellant.
    Reargued October 23, 1945;
    decided January 25, 1946.

      Nathaniel L. Goldstein, Attorney-General (Henry 8. Manley and Or rim G. Judd of counsel), for appellant.
    I. A determination of the Board of Regents, made on the testimony of a paid investigator who purported to seek an abortion at petitioner’s office, although disputed by petitioner and others, is supported by substantial evidence. (Matter of Weinstein v. Board of Regents, 292 N. Y. 682.) II. The restriction upon cross-examination of one of the investigators was justified. (3 Wigmore on Evidence [3rd ed], § 781.) III. The stipulation for order absolute is not contrary to public policy in this case. (Matter of Weinstein v. Board of Regents, 292 N. Y. 589, 293 N. Y. 692; Matter of Friedel v. Board of Regents, 269 App. Div. 890; People ex rel. Judson v. Thacker, 55 N. Y. 525; Friedman v. Friedman, 240 N. Y. 608; Matter of Decker v. Story, 259 N. Y. 580; People v. Dennison, 84 N. Y. 272; McCree v. Conger, 77 N. Y. 432; Flagg v. Moses, 248 N. Y. 509.)

      I. Maurice Wormser and William Sadoff for respondent.
    I. There is no substantial evidence to sustain the findings of the Board of Regents. The evidence is insufficient in law to sustain the charges and findings. II. The courts of this State have adopted a public policy in divorce cases that the testimony of private investigators and detectives should be received with great caution and minutely scrutinized. Ordinarily such evidence must be corroborated by facts and circumstances other than the- mere testimony of other investigators. (Moller v. Moller, 115 N. Y. 466; Yates v. Yates, 211 N. Y. 163; Winston v. Winston, 34 App. Div. 460,165 N. Y. 553.) III. The case of Matter of Weinstein v. Board of Regents (292 N. Y. 682) is not in point. IV. Petitioner’s cross-examination of the investigator witness was unduly restricted by the chairman of the medical sub-committee, although no objection had been interposed by the prosecutor and although the proposed cross-examination was entirely proper. (People v. Becker, 210 N. Y. 274; People v. Lustig, 206 N. Y. 162; Alford v. United States, 282 U. S. 687 ; Matter of Heaney v. McGoldrick, 286 N. Y. 38; Matter of Stammer v. Board of Regents, 287 N. Y. 359.) V. The State Constitution (Art. VI, § 7, subd. 3) and the Civil Practice Act (§ 588, subd. 3) expressly authorize this form of appeal and make no exception therein. VI. The decision of this court in Matter of Weinstein v. Board of Regents (292 N. Y. 589, 292 N. Y. 682) is a precedent for the, form of appeal and stipulation in this case.
   Medaue, J.

.On proceedings before its Grievance Committee, the Board of Regents revoked Dr. Epstein’s license to practice medicine for agreeing to perform abortions. The Appellate Division annulled the determination and remitted the matter to the board for further proceedings (267 App. Div. 27). New findings were made without a new hearing and again the Appellate Division reversed. One ground of reversal was that the two women who testified against the doctor were employed by the Medical Grievance Committee as paid investigators and that, like private detectives in divorce cases, they require corroboration of which there was none. The other ground was that the chairman of the committee which conducted the hearing, on his own motion, refused to permit an "inquiry as to what else one of the witnesses did for a living. Her employment by the Board of Regents was occasional. Where corroboration of private detectives is taken in divorce cases (Winston v. Winston, 165 N. Y. 553; Yates v. Yates, 211 N. Y. 163; Moller v. Moller, 115 N. Y. 466) it is because of a generally accepted suspicion which does not apply to public employees (Cullinan v. Trolley Club, 65 App. Div. 202; Farley v. Bronx Bath & Hotel Co., 163 App. Div. 459). No corroboration was required here and the evidence of the two women investigators was sufficient. Discretion permitted the exclusion of the inquiry as to what other work one of the witnesses did. In any event, there was adequate opportunity to inquire as to the facts testified to by the two investigators. Under Education Law, section 1265, subdivision 5, the committee on grievances is not bound by the laws of evidence in the conduct of its proceedings. All that is required is that “ the determination shall be founded upon sufficient legal evidence to sustain the same.” That is the case here.

The stipulation for order absolute was validly given. (Matter of Weinstein v. Board of Regents, 292 N. Y. 589.)

The order of the Appellate Division should be reversed and the determination of the State Board of Regents confirmed, without costs.

Loughran, Qh. J., Lewis, Conway, Desmond, Thacher and Dye, JJ., concur.

Ordered accordingly.


source: Caselaw Access Project

author: Dye, J.

license: Public Domain

text:
    The People of the State of New York, Respondent, v. George W. Donaldson, Appellant.
    Argued October 26, 1945;
    decided January 25, 1946.

      Philip J. Girillo and John J. Powell for appellant.
    I. The District Attorney erred in his theory, presentation and summation. Such confession must he taken as a whole and altogether, in evidence against him only when made voluntarily, and not under pressure of undue influence, exercised through menaces or threats or promises of reward, or immunity from prosecution. Such confession must be taken as a whole and altogether, for it is neither justice nor reason to accept the statements of the defendant as to his connection with the homicide, unless in its entirety and full significance. (Kerr on Law of Homicide, §§ 433, 498; People v. Williams, 292 N. Y. 297.) II. The trial court committed errors in its rulings on admission of evidence and in its charge and refusals to charge the jury on defendant’s requests. (People v. Odell, 230 N. Y. 481; People v. Fanning, 131 N. Y. 659.) III. The trial court erred in the admission of the alleged conversations of the law enforcement officers with defendant under the guise of a confession. (People v. Crossman, 172 N. Y. S. 567; People v. Brasch, 193 N. Y. 46; People v. Cuozzo, 292 N. Y. 85.) IV. The verdict was inconsistent, erroneous and against the weight of evidence. The verdict was a special verdict and not a general one. (Code Crim. Pro., § 436 et seg.; People v. McClure, 148 N. Y. 95; People v. Dowling, 84 N. Y. 478; Guenther v. People, 24 N. Y. 100; People v. Hicks, 287 N. Y. 165.) V. The conviction and the sentence are without foundation. Under the statutes, premeditation and deliberation are determinative of the degree of the crime and must be proved by sufficient evidence to warrant a conviction of the degree of which they are elements. Something more than mere intention to kill must be shown. (People v. Rosenheimer, 209 N.,Y. 115; People v. Arata, 254 N. Y. 565; People v. Kane, 161 N. Y. 380 ; People v. Albow, 140 N. Y. 130; People v. Dumar, 106 N. Y. 502; People V. Kings Co. Iron Foundry, 209 N. Y. 207; People v. Greenwall, 115 N. Y. 520; People v. Gonzalez, 293 N. Y. 259.)

      Earle J. Wiley, District Attorney (Joseph B. Mulholland of counsel), for respondent.
    I. The evidence was wholly legal and competent. Oral admissions by defendant given freely and voluntarily are admissible as evidence against him even, though made to law enforcement officers in the course of their investigation of the crime. The facts related by defendant were corroborated by his acts in uncovering to the authorities the body of his victim and the weapon with which he committed the crime-. II. No errors were committed by the trial court either in rulings on admission of evidence or in its charge. The verdict was a general and not a special verdict. (Code Crim. Pro., § 438.) I'll. The count which charged that the defendant committed the crime of murder in the first degree “ wilfully, feloniously and of malice aforethought ” charges the crime of murder in the first degree within the provisions of section 1044 of the Penal Law and is consistent with that section. (People v. Nichols, 230 N. Y. 221; People v. Giblin, 115 N. Y. 196; People v. Schermerhorn, 203 N. Y. 57; People v. Sobieskoda, 235 N. Y. 411; People v. Maine, 51 App. Div. 142; Fitzgerrold v. People, 37 N. Y. 413; People v. Conroy, 97 N. Y. 62.)
   Dye, J.

The defendant appeals from a conviction by a Rensselaer County jury of murder in the first degree for the killing of one Edward Simpkin by beating him over the head with a piece of iron pipe. The crime was committed on the grounds of the Pawling Sanitarium at the town of G-reenbush on or about October 22,1944. ■

Both the deceased, Simpkin, and the defendant, Donaldson, were employees of the Pawling Sanitarium and were attached to the maintenance crew, Simpkin as senior painter and the defendant as a member of the crew. The defendant had come to the institution as a parolee of Clinton Prison in July of 1944. During the course of their work friction developed between these two individuals, and on October 19th, following a quarrel over a paint brush which had led to the striking of blows, it was necessary for the superintendent of the institution to admonish the defendant and tell him that he would have to take orders from Simpkin. After that, while Simpkin continued to assign the work, they no longer worked together, but in separate buildings.

Simpkin did not report for work on October 23d, and on October 24th, suspicion was aroused when an employee found a blood-stained overcoat in a wooded area of the sanitarium grounds. This coat was later identified as belonging to Simpkin. The defendant who lived on the grounds in Cottage D, was brought in on October 24th for questioning, which led to his arrest and this indictment.

The indictment consisted of three counts of murder in the first degree: a statutory count, a common-law count and a felony count based on robbery.

The People called the law enforcement officers who testified, over the objection of the defense, as to the voluntary statement made by the defendant in the course of conversation at the interviews held with him immediately after suspicion of guilt attached to him and before his arrest. A written confession by the defendant (and there seems to be no denial that such a confession was made) was not introduced by the District Attornev. In brief, the witnesses testified that the defendant voluntarily stated that on the evening of October 22d, he boarded the sanitarium bus at Pawling Avenue which was being driven by Simpkin, sight of whom recalled a previous argument and he kept getting “ madder and madder that he returned to his room about seven o’clock and about eight o’clock he left his room and went to the bus garage near the rear óf the administration building; that when he saw the bus being driven into the garage, he picked up a piece of iron pipe about eighteen inches long, from a refuse pile behind the boiler house; that when Simpkin came out of the garage he struck him over the head, repeating blow after blow; that he then took the body into the woods, and, upon returning to one of the cottages, namely C, for pick and shovel, he recovered the weapon used and hid it in the rear of an old incinerator; that before burying the body in a Shallow grave, two feet in depth, he felt of the pulse and was of the opinion Simpkin ‘ was dead ’ ’; that thereafter he checked the ignition key previously removed from Simpkin’s overcoat with the car switch and, determining that it was the proper one, left the garage but retained the key; that the pick and shovel were hidden in the cellar of a cottage other than the one from which they had been taken; and that, thereafter, he went to his room to sleep. There is further testimony of the defendant’s statements of the taking of certain personal effects from the pockets of the victim’s clothing and having secreted them in various places. Such items, identified as being the property of Simpkin, included a bank book, a “ Breslaw ” book, a social security card, a set of eye-glasses, a change purse, a wallet, a watch and a set of keys; and, after the various places in which they had been secreted were pointed out by the defendant, recovery of all followed.

The series of incidents culminating in the homicide, as related by Donaldson, were fully corroborated by the People’s witnesses and, notwithstanding a most searching and painstaking cross-examination, nothing was added indicating that his statement was other than voluntary, that his rights while giving it were in any way jeopardized, that it was not accurately related, or that the facts were otherwise than as stated by him. We are satisfied that the corroborating testimony and circumstances are more than sufficient to satisfy the well-settled principle requiring corroboration of confessions, and that the admission of the testimony as to defendant’s voluntary statement was not reversible error.

At the close of the People’s case, on motion of the District Attorney, the third count (the felony count) of the indictment was dismissed for lack of proof, and the jury was instructed tó disregard it and to consider only murder by deliberation and premeditation and common-law murder.

The defendant did not take the stand in his own behalf but chose to offer insanity as a defense alleging that at the time of the homicide he was the victim of an epileptic equivalent, during which interlude he had no knowledge of the nature and quality of his act. As evidence of his tendency to suffer an epileptic equivalent, it was shown that his maternal grandfather had committed suicide; that his mother had died in the Hudson Eiver State Hospital at Poughkeepsie; and that the defendant himself had been confined in the Dannemora State Hospital for the criminally insane between October 30, 1918, and November 26, 1919. The testimony of two qualified medical experts was adduced to show the symptoms and the characteristics of an epileptic equivalent, and, in answer to a hypothetical question, they gave, as their opinion, that this defendant was a victim of this unusual psychiatric condition at the time of the commission of the crime. No claim is made that the defendant was otherwise than sane at the time of trial or that he was not able to" understand the nature and quality of his acts except during the period of epileptic equivalent. That the defendant was such a victim is sharply denied by the medical experts called by the People, who testified that an examination of the defendant revealed an I. Q. of 78 which indicated a mental age of eleven, and that he was classified as a high grade moron who understood the nature and quality of his act.

The District Attorney in the course of his summation discussed at some length the defense of insanity, saying, among other things:

“ What is the defense here? Insanity, I suppose, although ■ they don’t call it insanity, because if it was insanity and the defendant was insane on October 22, 1944, he is insane today.

“ I think enough of my oath of office and my duty as district attorney not to try an insane man for murder in the first degree or any crime he has committed in this county. It would be absolutely wrong for me, if there were any doubt in my mind about the sanity of this defendant, either at the time he committed the crime, or now, to put him on trial before this court, for his life, or any other thing.”

The prejudicial quality, if any, of these remarks was not recognized at the time by either counsel or the court. No objection or exception was taken and no charge was either made or requested and denied in respect of them. This does not preclude consideration of whether such remarks were so prejudicial as to persuade the jury to disregard the defense of insanity, and substitute as an issue the veracity and reputation of the District Attorney. True it is that in the light of a cold and unemotional record the words might better have been left unsaid but, having been said, it is appropriate that we attempt to evaluate the consequences. A broad definition of universal application of what is inflammatory and prejudicial is indeed difficult to formulate. Each trial setting has its own peculiar and individual quality and the impact of counsel’s summation upon the jury must be considered in the atmosphere and circumstances of its delivery. To lift a sentence or a paragraph from its context is never satisfactory for the implication accompanying such a practice may indeed be very remote from the clear impression to be derived from a consideration of the whole effect. We are constrained to hold that even though the summation of the District Attorney, under less compelling circumstances, might have been deemed improper, it was nevertheless so insubstantial in this particular instance as not materially to affect the verdict in such a manner as to constitute error warranting a new trial.

The court also charged the jury as to the defense of insanity, the several degrees of homicide as defined in the Penal Law, and instructed the jury fully on their rights in the consideration of lesser degrees. Various requests to charge were made by counsel, in the granting or denial of which we have determined no reversible error was committed. During the course of its deliberations the jury requested the reading of certain portions of the testimony which was allowed and also asked for instruction as to the penalties of murder in the third degree and manslaughter. The court instructed them that the matter of penalty was solely for the court and that there is no such crime as murder in the third degree. The jury reached its verdict as follows: “ This jury finds the defendant guilty of murder in the first degree, on the second count of the indictment only,” and when individually polled each juror answered in the same words.

The case now comes down to the propositions of (1) whether the verdict of the jury, guilty of murder in the first degree, on the second count of the indictment only ”, is consistent with and responsive to the indictment and amounts, in law, to a conviction of murder in the first degree, and (2) whether the verdict is the result of misunderstanding and not a free expression of their judgment.

The claim of the defense that the verdict is inconsistent and not responsive is largely speculation as to what went on in the jury’s minds in the course of their deliberations. We, of course, are bound by what appears within the four corners of the record, and from it we are unable to find anything to indicate that the court’s charge was erroneous and improper or that the jury were misled and thereby reached an erroneous and unresponsive verdict.

Proceeding to the technical consideration of the first and second counts of the indictment, we are being asked by the defendant to hold that count two (the common-law count) was insufficient to support a verdict of murder in the first degree in that it is silent as to the design to effect the death or the intent to kill and that such an omission is fatal (Penal Law, § 1044); that the verdict of guilty under the' second count is a special verdict and cannot be deemed general to the extent of supporting a verdict of murder in the first degree, by reason of such omission. This contention collides with the old and well-established rule that the various statutory changes in the definition of the crime of murder have not abrogated the common-law counts in the indictments for that crime and an indictment in common-law form, stating the facts constituting the crime and charging the crime to have been done by the defendant “ willfully, feloniously and with malice aforethought ”, is sufficient to sustain a conviction of murder in the first degree if the proof as to the manner of the commission of the crime brings it within one of the statutory definitions (People v. Giblin, 115 N. Y. 196). In People v. Nichols (230 N. Y. 221) Hiscock, Ch. J., in discussing the form of the indictment, stated at page 226: the indictment was sufficient in form when it simply accused defendant of having killed the deceased willfully, feloniously and with malice aforethought ’ ”, citing People v. Giblin (supra) and People v. Schermerhorn (203 N. Y. 57).

From the whole record it is clear that def endant killed Simpkin with deliberation and premeditation beyond any reasonable doubt and that the jury were justified in finding as their verdict that the defendant was guilty of murder in the first degree.

The judgment of conviction should be affirmed. •

Lewis, Conway and Medalie, JJ., concur with Dye, J.; Loughban, Ch. J., and Desmond and Thacheb, JJ., dissent in the following memorandum: The District Attorney’s pledge to the jury of the absence from his mind of any doubt as to the sanity of the defendant was undoubtedly made in good faith and with a sincere belief in its correctness. Nonetheless for that, however, the defendant was thereby quite effectively deprived of the benefit of any real consideration by the jury of the one issue upon which his life depended. We vote to reverse the judgment of conviction and for the ordering of a new trial (see Berger v. United States, 295 U. S. 78, 88).

Judgment of conviction affirmed.


text:
    455 Seventh Avenue, Inc., Appellant, v. Frederick Hussey Realty Corp., Respondent.
    Argued November 19, 1945;
    decided January 25, 1946.

      Leon Lauterstein, Melbourne Bergerman, Florence Morgenstern and Lincoln Lauterstein for appellant.
    I. The Appellate Division erred in reversing the trial court’s decision that the lease and modification agreement, apart from any extrinsic evidence, showed that the parties intended the minimum rent for the first renewal term to be the rent reserved in the lease for its original term, and in holding that such minimum rent should be the rent reserved in the lease for the last year of the original term plus the additional sum payable under the modification agreement for that year. II. The lease of January 7, 1924, makes the rent reserved in that lease for its original term, ending February 1,1945, the minimum rent for the first renewal term. (Atterbury v. Bank of Washington Heights, 241 N. Y. 231; Board of Education v; American Nat. Bank, 294 F. 14; Utley v. Donaldson, 94 U. S. 29.) III. The modification agreement did not enlarge the minimum rental for the first renewal term beyond the amount of rent reserved in the lease for its original term. (Ayer v. Bonwit, 161 App. Div. 122; Foreman v. Elaine Realty Corp., 240 App. Div. 490; Feldman v. Sheridan Warehouse Co-operative Corp., 247 App. Div. 82.) IV. Article First of the modification agreement did not increase the rent reserved in the lease by the amount of the “ additional rent but on the contrary shows that the “ additional rent ”, although payable simultaneously, was intended to be separate and distinct from the rent reserved in the lease and to be payable only during the balance of the original term of the lease. V. The general scheme of the modification agreement does not support the holding of the majority of the Appellate Division that the “ additional rent ” was incorporated in the rent reserved in the lease. VI. The modification agreement did not make the “ additional yearly rents ” payable after the expiration of the original term of the lease or through the first renewal period. VII. The lease provided, and the modification agreement emphasized, that the original term of the lease, and not the last year of the original term, was the “ period ” for measuring the minimum rent for the first renewal term. (Atterbury v. Bank of Washington Heights, 241 X. Y. 231.) VIII. The Appellate Division erred in reversing the trial court’s findings that the intent of the parties, as shown by the background of the modification agreement and the circumstances attending its negotiation and execution, was that such agreement should not enlarge the minimum rent for the first renewal term beyond the rent reserved in the lease for its original term, and in substituting for those findings a new finding that such extrinsic evidence indicated an intention that the minimum rent for the renewal term was to be $200,000 per year. IX. The Appellate Division erred in holding that the paroi evidence rule made the extrinsic evidence inadmissible. (Rasmussen v. New York Life Ins. Co., 267 N. Y. 129; Becker v. Frasse & Co., 255 N. Y. 10; Utica City Nat. Bank v. Gunn, 222 N. Y. 204; Atterbury v. Bank of Washington Heights, 241 N. Y. 231; Nottingham & Wrenn Co. v. American Coal Exporting Co., 36 F. 2d 982; Lamb v. Norcross Brothers Co., 208 N. Y. 427; O’Neil Supply Co. v. Petroleum H. & P. Co., 280 N. Y. 50.) X. The Appellate Division erred in reversing the trial court’s findings, which were fully supported by the extrinsic evidence, and in making a new and contrary finding which was against the weight of such evidence.

      Monroe E. Stein for respondent.
    I. The lease and the modification agreement read together express the intention of the parties that the net minimum rent for the first renewal term was to be the rental set forth in the modification agreement for the period ending February 1, 1945, to wit, $200,000 per year. (Fleischman v. Furgueson, 223 N. Y. 235; Paige v. Faure, 229 N. Y. 114; McKibben v. Lester, 9 Ohio St. 627; Brickhouse v. Hill, 167 Ark. 513.) II. There being no ambiguity in the modification agreement or the lease, the paroi evidence offered did not explain or did not attempt to explain any ambiguity in the said instruments but was an attempt only to substitute an alleged oral agreement of the parties for the written agreement and hence was inadmissible. (Hutchison v. Ross, 262 N. Y. 381; Schweinburg v. Altman, 145 App. Div. 377; Kirchner v. N. H. S. M. Co., 135 N. Y. 182; McManus v. Biddison, 152 Misc. 239, 242 App. Div. 623; Smith v. McCullaugh, 234 App. Div. 490.) IÜ. If the court holds that extrinsic evidence was • properly admitted, the said extrinsic evidence indicates an intention of the parties that the substituted annual rental as set forth in the modification agreement for the period ending February 1, 1945, was to be the standing of the minimum annual net rental for the first renewal term.
   Dye, J.

On January 7,1924, the plaintiff-appellant as tenant, and the defendant-respondent as landlord, entered into a lease covering certain premises on Seventh Avenue between 34th and 35th Streets, New York City, for a term of twenty-one years beginning February 1, 1924, and ending February 1, 1945, reserving an .annual rental of $100,000 for the first year and $150,000 for each of the remaining years, to be paid quarterly, •in advance. By the terms of the lease there were provided two possible renewal terms of twenty-one years each at the option of the lessee. The lease also provided for the erection by the tenant of a sixteen-story building according to agreed plans and specifications which, when erected, was not to be removed or substantially altered without the consent of the landlord who was deemed the owner of the building upon its completion.

The lease provision containing the tenant’s option to renew provided: * * * if there shall be standing or be in the course of erection, on the demised .premises at the end of this lease, a building or buildings, which the Tenant shall have erected on the demised premises in pursuance of the terms of this lease, and if the Tenant * * * desires to avail itself of a renewal of this lease, beginning February 1, 1945 * * * the Landlord * * * will grant * * * a renewal of this lease for the further term of twenty-one years from February 1, 1945 at such annual rent payable quarterly in advance (but not less than the rent herein reserved), as shall be agreed upon by the said Landlord and Tenant ”.

The method of agreement was to be by appraisal of the land demised “ without taking into consideration the value of the building or buildings, at its full and fair market value or price at private sale, considering the same as unencumbered and unrestricted vacant plot and six percent upon the amount of appraisement or valuation of said land shall be the annual rent of the demised premises in addition to all other payments herein provided to be made for the further term of twenty-one years * * * in no event is said rental to be fixed at a less sum than herein provided to be paid as the rental for the period ending February 1, 1945.”

In 1930 the tenant decided to demolish the sixteen-story building and replace it with a twenty-story building more suitable to the needs of the occupant, the B. H. Macy Co. The parties accordingly entered into a written modification agreement providing for annual rental payments for the balance of the original term, which were to be paid in addition to the net annual rental of $150,000 reserved in the lease, amounting to $10,000 for the first year, $20,000 for each of the succeeding four years, $35,000 for each of the succeeding five years, $40,000 for each of the succeeding three years and $50,000 for each of the remaining two years, so that the aggregate yearly net rental for the years 1943-1945 would be $200,000. The agreement also provided that the additional yearly rents were to be paid in equal quarterly yearly payments as provided for the rent reserved in the original lease. There then follows the disputed phrase: “with the same force and effect as if said yearly additional rent and said yearly original rent were the yearly rents originally reserved in the said lease.”

Upon the trial extrinsic evidence by the attorney who had acted for the defendant at the time the original lease and modification agreement were negotiated and drawn was offered and received over objection of the defendant. The plaintiff-appellant was also allowed to show that the attorney representing it during the modification negotiation was dead. Upon this foundation, letters exchanged during the course of the negotiation were received. While the lower court took the position that the extrinsic evidence was unnecessary to a decision, it, nevertheless, made findings of fact derived therefrom.

The lease stands as the basic contract of the parties which the modification agreement provides “ shall be and remain in full force and effect, excepting as modified by this agreement.” Both documents are carefully drawn in clear and understandable language but most significant and convincing are the explanatory marginal notes appearing opposite the various paragraphs therein, except the disputed phrase as quoted above. The words of the renewal clause are not unusual, but are clear enough to be readily understandable by the ordinary person. There is no necessity for extrinsic evidence as the dispute centers around the legal effect of the words rather than any inherent ambiguity in their use. There are no words indicating an intention to increase the base rent. All modified rental amounts were * described as “ additional yearly rent ”, Had the parties so desired, they could easily have stated in so many words that the additional rental in the modification agreement was to be deemed the rent reserved in the original lease for purposes of renewal.

The law is well settled that changes in a lease are not to be presumed or implied; and no additional liability will be imposed upon a tenant unless it is clearly within the provisions of the instrument under which it is claimed. If the instrument contains any ambiguity it must be resolved against the landlord and in favor of the tenant (1 N. Y. Law of Landlord and Tenant [Thompson & Co.] 601; Bennett, Landlord and Tenant, 56; Ayer v. Bonwit, 161 App. Div. 122, 126; Feldman v. Sheridan Warehouse Cooperative Corp., 247 App. Div. 82, 84; Pangburn v. Stanley Mark Strand Corp., 24 N. Y. S. 2d 97, 99).

Since the question of rent was of major importance to both parties, and the modification agreement did not specifically change the basic formula for determining the renewal rental, that rental should be $150,000 for each year of the renewal term or the result of an appraisal and 6% of the land value thereon. The parties have already stipulated that an appraisal would be useless as 6% of the land value at the present time would not equal the rental formula contained in the original lease.

The judgments should be reversed and the case remitted to the Special Term for further proceedings not inconsistent with this opinion, with costs to appellant in this court and in the Appellate Division. [See 295 N. Y. 827.]

Loughban, Ch. J., Lewis, Conway, Desmond, Thacheb and Medalie, JJ., concur.

Judgments reversed, etc.


author: Lewis, J.

text:
    In the Matter of Park and 46th Street Corporation, Appellant, against State Tax Commission, Respondent.
    Argued January 9, 1946;
    decided March 7, 1946.

      Robert H. O’Brien, Hamilton O. Rickaby and Charles H. Bird-sail for appellant.
    I. Only the amount of the increased mortgage indebtedness constituted tjie proper measure of the tax under section 250 of the Tax Law. II. The exchange of $1,075,-000 old bonds for a like amount of new bonds did not create a new “ principal debt or obligation ” under section 253 of the Tax Law. The proper measure of the tax was, accordingly, $125,000, the amount of the new loan. (People ex rel. New York

      State Gas & Electric Corp. v. Gilchrist, 209 App. Div. 771, 240 N. Y. 552; People ex rel. Boston & Maine R. R. v. Loughman, 227 App. Div. 361, 254 N. Y. 513; People ex rel. Banner Land Co. v. State Tax Comm., 244 N. Y. 159, 244 N. Y. 604; Matter of Erie R. R. Co. v. State Tax Comm., 260 App Div. 268, 284 N. Y. 673; People ex rel. U. S. Title Guar. Co. v. State Tax Comm., 230 N. Y. 102; People ex rel. Williamsburg Sav. Bank v. State Tax Comm., 220 App. Div. 400, 245 N. Y. 414.)

      Nathaniel L. Goldstein, Attorney-General (Herman F. Nehlsen, Orrin G. Judd and Wendell P. Broten of counsel), for respondent.
    I. The Third Supplemental Indenture is not entitled to exemption from the mortgage recording tax. (Defiance Paper Co. v. Browne, 268 App. Div. 931, 294 N. Y. 684; People ex rel. U. S. Title Guar. Co. v. State Tax Comm., 230 N. Y. 102; People ex rel. Jewelers Building Corp. v. State Tax Comm., 214 App. Div. 99, 241 N. Y. 524; People ex rel. Central Union Trust Co. v. Wendell, 197 App. Div. 131, 231 N. Y. 629; Matter of Schwartzman, 262 App. Div. 635, 288 N. Y. 568.)
   Lewis, J.

We are to determine whether a portion of a mortgage recording tax paid under protest by the- petitioner-mortgagor was legally exacted.

The Register of the City of New York, acting as a recording officer, denied a claim by the mortgagor for the exemption of a portion of a mortgage tax demanded upon the recording of the instrument presently to be described. Thereafter the mortgagor applied to the State Tax Commission for a review of the determination and for a refund of taxes paid under protest in the amount of $5,375. Responsive to that application the commission granted a hearing after which it ratified the recording officer’s action and denied a refund to the mortgagor. That determination, which is the subject of review in the present proceeding, has been confirmed at the Appellate Division, two Justices dissenting.

As to facts: The mortgagor, Park and 46th Street Corporation, paid a mortgage tax in full in 1935 when it recorded a mortgage executed to The Chase National Bank of the City of New York, as trustee, to secure a loan of $1,800,000 made by Metropolitan Life Insurance Company — to which reference will be made as “ Metropolitan.” The mortgage debt then created was represented by 5% Serial Mortgage Bonds, all of which were held by Metropolitan. On two subsequent occasions the mortgage was so modified, by First and Second Supplemental Indentures, that on November 15, 1943, the debt — which then had been reduced to $1,075,000 — comprised 5% bonds in the amount of $915,000 and 4% bonds in the amount of $160,000. Of these so-called “ Old Serial Bonds ” $160,000 matured each year until 1947 when the balance of $595,000 matured. We are thus brought to the transaction which gave rise to the present proceeding.

On November 15,1943, the mortgagor and the trustee executed the Third Supplemental Indenture whereby, upon the written consent and agreement of Metropolitan, the original mortgage as previously modified was further so modified as (a) to extend the maturities of the Old Serial Bonds and change the rate of interest payable thereon; (b) to provide for the issuance of. additional bonds in the principal amount of $125,000 and (c) to provide for the exchange by Metropolitan — the registered holder of all the Old Serial Bonds — for an equal principal amount of textually revised bonds evidencing the same indebted^ ness. The Third Supplemental Indenture contained the provision that $1,075,000 of 4y2% bonds were to be issued “-only to the registered holder of all of the Old Serial Bonds upon surrender to the Trustee by said registered holder of all the Old Serial Bonds for cancellation.” Accordingly, following the execution of the Third Supplemental Indenture the mortgagor sold to Metropolitan the new or additionally issued 4%% bonds in the amount of $125,000 and exchanged with Metropolitan $1,075,000 of the Old Serial Bonds for an equal amount of 4%% bonds revised in text to conform to the change made by that indenture.

Upon the recording of the Third Supplemental Indenture the mortgagor paid without protest to the Register of the City of New York a mortgage tax concededly due upon the increased indebtedness of $125,000 secured by the mortgage as amended by that indenture. In addition the register exacted, and the mortgagor paid under protest, a mortgage recording tax of $5,375 which thus far in this proceeding has been ruled to be legally attributable to the balance of the mortgage debt owed by the mortgagor prior to the execution of the Third Supplemental Indenture. We think that ruling was not in accord with those statutes which govern the imposition of the mortgage recording tax.

By section 253 of the Tax Law the incidence of the tax of “ fifty cents for each one hundred dollars and each remaining major fraction thereof ”, is upon the “ principal debt or obligation which is * * * secured * * * by a mortgage on real property situated within the state * * A related statutory formula in which legislative emphasis is placed upon the increase in the mortgage indebtedness is found in section 250 — A contract or agreement by which the indebtedness secured by any mortgage is increased or added to, shall be deemed a mortgage of real property for the purposes of this article [art. 11], and shall be taxable as such upon the amount of such increase or addition.” In the Third Supplemental Indenture with which we are concerned is a recital of an agreement between the mortgagor and Metropolitan that the original mortgage as previously amended be further supplemented, modified and. amended * * * to provide for the issuance of $125,000 principal amount of additional bonds ”.

Viewed in the light of the statutes quoted above, we think the recording of the Third Supplemental Indenture was taxable to the extent only that it made provision for an increase or addition to the principal debt or obligation owing by the mortgagor. True it is' that by that instrument the date of maturity of the mortgage debt was extended, the rate of interest on bonds outstanding was reduced and it was provided that $1,075,000 of the new 4%% bonds were to be delivered “ * * ' * only to the registered holder [Metropolitan] of all of the Old Serial Bonds upon surrender to the Trustee by said registered holder of all the Old Serial Bonds for cancellation.” But the mortgage recording tax, as we have seen, is measured under section 253 of the Tax Law by the amount of the “ principal debt or obligation not by the maturity date of the mortgage debt, nor by the interest rate.

Both statutory enactment and judicial decisions support the mortgagor’s resistence to a recording tax which, insofar as it is based upon a mortgage debt of $1,075,000, was paid when the original mortgage was recorded. Aside from alterations effected in the text of the mortgage which did not involve taxable consequences, and except for an increase of $125,000 in the amount of the mortgage debt, the execution and recording of the Third Supplemental Indenture accomplished nothing more than to modify the maturity date and the interest rate of the bonded debt and to carry out an agreement by the parties that to the extent of a portion of the mortgage debt amounting to $1,075,000 an exchange of evidences of that portion of the debt should take place. A decisive fact is that to the extent of $1,075,000, and according to the agreement of the parties, the principal of the mortgage debt remained the same. The instrument recorded increased the principal debt or obligation of the mortgagor to the extent only of the new bonded debt in the amount of $125,000. That increase was the gouge by which is measured the recording tax legally to be imposed.

The conclusion we have reached is supported by the rule in Matter of New York State Gas & Electric Corporation v. Gilchrist (209 App. Div. 771), affirmed on opinion below by Kellogg, J., sub nom. People ex rel. New York State Gas S Electric Corporation (240 N. Y. 552). There the relator mortgagor had issued bonds secured by a mortgage upon which a recording tax had been paid. The bonds were sold to a single purchaser, which on a later date entered into an agreement with the mortgagor for the replacement of the old bonds with a new issue. When, according to that agreement, new bonds were issued and exchanged for an equal amount of the original bonds the question was litigated as to whether the transaction was such that a mortgage recording tax — measured by the amount of new bonds — could be imposed. In the opinion which stated the view of this court upon that question it was said (pp. 774-775): The mortgagor, by an agreement made in advance of the issue, was obliged to give new .bonds for old, while the mortgagee ‘was obliged to make the exchange. It is true that by the new bonds the mortgagor promised to pay in 1962 what it had previously agreed to pay in 1947 and 1952. It is also true that it promised to pay interest at five and one-half per cent whereas it had previously agreed to pay interest at five and six per cent. Was there an additional 1 principal debt or obligation ’ to measure an additional tax upon the identical mortgage? A debt is not merely a promise to pay money. It involves the relationship of debtor and creditor, of borrower and lender, and ordinarily signifies an exchange of cash for a promise to return it with an increment of interest. There was here the creation of no new relationship; there was no new creditor, no new debtor, no new loan. It must be remembered that it is the principal sum of a loan, not the interest to he paid thereupon, which measures a mortgage tax. Here there was no new principal sum although there was a new interest rate and a new date of payment.” (Emphasis supplied.) See, also, People ex rel. B. & M. R. R. v. Loughman (227 App. Div. 361, affd. 254 N. Y. 513), and People ex rel. Banner L. Co. v. State Tax Comm. (244 N. Y. 159).

In People ex rel. Jewelers Building Corporation v. State Tax Commission (214 App. Div. 99, affd. 241 N. Y. 524) — which the Appellate Division held to be controlling in this case — there were vital facts which had different legal consequences than the facts with which we are now dealing. The instrument which was recorded in that case and upon which the recording tax in suit was imposed was so phrased as expressly to extinguish the old debt. In the ease at bar the Third Supplemental Indenture expressly preserves the old debt and provides that the lien thereof shall not be canceled.

The order of the Appellate Division should be reversed, the determination of the State Tax Commission annulled, and the State Tax Commission directed to refund to the petitioner so much of the mortgage recording tax as was paid under protest, with costs in this court and in the Appellate Division to the appellant.

Lottghran, Ch. J., Conway, Desmond, Dye and Medaue, JJ., concur; Thacher, J., taking no part.

Ordered accordingly.


text:
    The People of the State of New York ex rel. Savory, Inc., Respondent, against John R. Plunkett et al., Constituting the Board of Assessors of the City of Buffalo, Appellants.
    Argued November 30, 1945;
    decided March 7, 1946.

      Andrew P. Ponan, Corporation Counsel {Abraham I. Okun of counsel), for appellants.
    I. The fifteen-day limitation of the Charter of the City of Buffalo did not suffer a silent repeal by the subsequent enactment, amending the Tax Law. (Burke v. Kern, 287 N. Y. 203; Buffalo Cemetery Assn. v. City of Buffalo, 118 N. Y. 61; Fulton v. Krull, 200 N. Y. 105; Peterson v. Martino, 210 N. Y. 412; People ex rel. Sheldon v. Board of Appeals, 234 N. Y. 484; Carroll v. McArdle, 216 N. Y. 232; People ex rel. Leet v. Keller, 31 App. Div. 248, 157 N. Y. 90; Matter of Deth v. Castimore, 245 App. Div. 156; Sheridan v. Weber, 252 App. Div. 398; People ex rel. American Sugar Refining Co. v. Sexton, 274 N. Y. 304; Rogers v. Village of Port Chester, 234 N. Y. 182.) H. The fifteen-day limitation of the Buffalo Charter is complete in itself and controls the Tax Law provision. (People ex rel. Schwarz v. Miller, 281 N. Y. 554; People ex rel. Northchester Corp. v. Miller, 288 N. Y. 163.)

      Lyndon Wilson for respondent.
    The fifteen-day limitation in section 327 of the Charter of the City of Buffalo was repealed by the enactment of chapter 296 of the Laws of 1935 amending the limitation of section 291 of the Tax Law to thirty days. (Peterson v. Martino, 210 N. Y. 412; Fulton v. Krull, 200 N. Y. 105; Pratt Institute v. City of New York, 183 N. Y. 151; Cone v. Lauer, 131 App. Div. 193; Matter of Port Chester Central Corp., 260 App. Div. 944.)
   Dye, J.

The relator herein, as the owner of real property situated in the city of Buffalo, instituted this certiorari proceeding to review a tax assessment levied for the year 1944 by the Board of Assessors by filing a petition on March 29, 1944, which date was more than fifteen days but less than thirty days after the final completion of the assessment rolls.

The denial at Special Term of a motion by the Board of Assessors to dismiss the petition on the ground that the commencement of the proceeding was not timely within the meaning of the Charter of the City of Buffalo has been affirmed by the Appellate Division and leave to appeal granted from its non-unanimous order on a certified question of law, viz.: “Did this Court err, as a matter of law, in making its order of May 2, 1945?”

The Charter of the City of Buffalo was adopted at a referendum of the voters of the city at a special election held August 29, 1927, pursuant to chapter 363 of the Laws of 1924. It carried over from the preceding charter (L. 1914, ch. 217, § 117, as amd. by L. 1916, ch. 260), a fifteen-day limitation within which to institute proceedings to review tax assessments, and added a new provision to review special franchise assessments as provided by the Tax Law, both of which provisions were incorporated in the charter as section 327, article 18, “ Actions and Proceedings ”. The remainder of section 117 of the original Charter was incorporated in section 554, article 29, “ Tax and Assessment Boils ”. For convenience, section 327 is quoted as follows: “§ 327. Certiorari to review general assessment. No proceeding shall be brought to review any assessment on the general rolls, or any of them, unless the petition for the writ is presented to a justice of the supreme court or at a special term of the supreme court in the judicial district in which the assessment complained of was made within fifteen days after the final completion of said assessment rolls and the publication of the notice thereof as required by section five hundred fifty-four. In any such proceeding the total assessment only can be reviewed. Assessments of special franchises may be reviewed as provided by the tax law.” (Local Law, No. 4 of City of Buffalo, 1927 [published in Local Laws, 1932, p. 21].)

At the time of the adoption of the Charter of the City of Buffalo in 1927, section 291 of the Tax Law also provided a fifteen-day limitation for the commencement of certiorari proceedings to review a tax assessment. This time limitation has been enlarged to thirty days (L. 1935, ch. 296). No corresponding increase has been made in the Charter of the City of Buffalo. This does not mean that its designated time limitation has thereby been superseded and repealed. It is only when the charter is silent on matters of practice and procedure for the review of a tax assessment that reference to the general Tax Law is necessary (People ex rel. N. Y. C. R. R. Co. v. Block, 178 App. Div. 259, appeal dismissed 221 N. Y. 652; People ex rel. American Sugar Ref. Co. v. Sexton, 274 N. Y. 304; People ex rel. Empire Mortgage Co. v. Cantor, 198 App. Div. 317, affd. 234 N. Y. 507; Peterson v. Martino, 210 N. Y. 412); or when specific reference is made to the Tax Law (Matter of Port Chester Central Corp. v. Hill, 260 App. Div. 944). It is otherwise when the charter contains a complete scheme for the review by certiorari of a tax assessment (Fulton v. Krull, 200 N. Y. 105). An examination of the Charter of the City of Buffalo, as a whole, brings us to the inescapable conclusion that it contemplated and, in fact, provides for a complete procedural enactment for the review of assessments. Its provisions as to limitation of time in such cases must be deemed controlling. To hold otherwise is to disregard the long recognized rule of statutory construction that a general act will not repeal a special act unless the Legislature clearly intended to do so (1 McKinney’s Statutes, § 396) and would necessitate extensive changes in the administration of the fiscal affairs of the city. To mention only the most obvious, the time for submitting the Mayor’s budget, which is an estimate of the revenues needed for the fiscal year, on or before May 15th (Executive Budget, art. 6, § 86); and the consideration by the Common Council of the budget at its first meeting. If changes are made therein, it must be returned to the mayor on or before the 15th of April, for his approval and, if he objects to the changes, it may be considered by the council and adopted by a two-thirds vote on or before the first day of May (Common Council, art. 3, §39). The necessity of the fifteen-day limitation for the commencement of certiorari proceedings becomes apparent.

Neither can we invoke sections 4 and 113 of the Civil Practice Act, for, in any event, the commencement of the proceeding must be timely. Here the proceeding is not timely when measured by the charter.

The orders should be reversed, with costs to the appellants, and the matter remitted to the Special Term for further proceedings not inconsistent with this opinion. The certified question should be answered in the affirmative.

Loughran, Ch. J., Lewis, Conway, Desmond, Thacher and Medalie, JJ., concur.

Ordered accordingly.


author: Desmond, "J.

text:
    In the Matter of John J. Reed, as Executor of Mathilda A. Stier, Deceased, Appellant, against Rollin Browne et al., Constituting the State Tax Commission, Respondents.
    Argued January 8, 1946;
    decided March 7, 1946.

      Max Rochmore and Sidney Meyers for appellant.
    I. Section 15 of the Personal Property Law, béing in derogation of common law, must be strictly construed. As applicable and pertinent to the facts herein, the prohibition against transfer of beneficial interest applies solely to a beneficiary of the specifically indicated trust referred to therein. (Matter of Fowler, 263 App. Div. 255, 288 N. Y. 697; Matter of Kaufman, 131 N. Y. 620; Matter of Ryan, 291 N. Y. 376; Matter of Fonda, 206 App. Div. 61; Matter of McGarry, 155 Misc. 467; Matter of Fischer, 261 App. Div. 252.) II. The will of decedent’s father did not intend to or create or set up any “ trust ”. (Matter of Raplee, 160 Misc. 615; Matter of Hawley, 104 N. Y. 250; Matter of Soley, 150 Misc. 839.) III. Assuming that it was the intention of decedent’s father to create a trust under paragraph “ Fourth ” of his will, no legal effect can be given to said intention. The beneficiaries received legal life estates in the residuary. (Real Property Law, § 92; Woodward v. James, 115 N. Y. 346; Weeks v. Frankel, 197 N. Y. 304; Matter of Richardson, 135 Misc. 726, 229 App. Div. 765; Matter of Haradon, 173 Misc. 993; Greene v. Greene, 125 N. Y. 506; Matter of Farrell, 133 App. Div. 97,198 N. Y. 579; Brown v. Spohr, 180 N. Y. 201; Rose v. Hatch, 125 N. Y. 427; Matter of Sweeney, 155 Misc. 461.) IV. Assuming that on the death of decedent’s father a trust did arise under paragraph “ Fourth ” of his will, the trust on the date of death of the beneficiary who died first, became a legal life estate in' the surviving beneficiary. (Matter of Morrisey, 170 Misc. 1016; Matter of Kimberly, 150 N. Y. 90; Matter of Kaupper, 141 App. Div. 54, 201 N. Y. 534; Matter of Helling, 84 Misc. 684; Matter of Harteau, 204 N. Y. 292; Matter of Baggett, 130 Misc. 635.) V. The document executed by the surviving beneficiary and the'only child of the deceased beneficiary was not a “ transfer ” of a beneficial interest, within the scope of section 15 of the Personal Property Law, or contrary thereto. (Matter of Matthiessen, 175 Misc. 466; Matter of Hanna, 155 Misc. 833.). VI. If it be held that said document was a “ transfer ”, the same was not violative of section 15 of the Personal Property Law.

      Nathaniel L. Goldstein, Attorney-General (John O. Grary, Jr., Orrin G. Judd, Wendell P. Brown and Irving I. Waxman of counsel), for respondents.
    I. A valid trust, subject to section 15 of the Personal Property Law, came into' effect on the death of decedent’s father. (Matter of Freiberger, 177 Misc. 592; Matter of Wentworth, 230 N. Y. 176; Rankine v. Metzger, 69 App. Div. 264, 174 N. Y. 540; Bull v. Odell, 19 App. Div. 605; Losey v. Stanley, 147 N. Y. 560; Rogers v. Rogers, 111 N. Y. 228; Haendle v. Stewart, 84 App. Div. 274; Robertson v. de Brulatour, 188 N. Y. 301; Greene v. Greene, 125 N. Y. 506.) II. A valid trust having been created, it was not destroyed when the surviving beneficiary became the sole remaining trustee.. (Schoell

      kopf v. Marine Trust Co., 267 N. Y. 358; Downing v. Marshall, 23 N. Y. 366; N. Y. Dry Dock Co. v. Stillman, 30 N. Y. 174; Wendt v. Walsh, 164 N. Y. 154; Metcalfe v. Union Trust Co., 181 N. Y. 39; Cuthbert v. Chauvet, 136 N. Y. 326; Matter of Wentworth, 230 N. Y. 176; Losey v. Stanley, 147 N. Y. 560; Rogers v. Rogers, 111 N. Y. 228; Rankine v. Metzger, 69 App. Div. 264, 174 N. Y. 540; Bronson v. Bronson, 48 How. Pr. 481; Matter of Runk, 200 N. Y. 447.) III. The surviving beneficiary’s renunciation was an alienation of her rights, forbidden by section 15 of the Personal Property Law. (Matter of Wentworth, 230 N. Y. 176; Dale v. Guaranty Trust Co., 168 App. Div. 601.)
   Desmond, "J.

Additional New York State income taxes were assessed against Mathilda A. Stier, appellant’s testatrix, because, according to the State, Mrs. Stier omitted certain taxable income from her returns for 1937, 1938 and 1939. After a hearing, the State Tax Commission confirmed the assessments and the commission’s determination was, on appeal, unanimously confirmed by the Appellate Division. We granted leave to appeal to this court.

This is an income tax case but the answer to its problem is found in the law of trusts. The income in question came from the estate of Mrs. Stier’s father, who died in 1902. The investments of the estate are in both real and personal property. Read as of the date of his death, the father’s will left his residuary estate to his only children, Mrs. Stier and her sister, as trustees to pay the income thereof to themselves during <i the terms of their respective lives ”. There was no specific provision to take care of a situation that was bound to arise — the death of one daughter before the other. There was in the will a further direction that after the death of the two dough-A ters, the whole residuary estate was to go to another trustee who was to pay it over to the children of the daughters. Mrs. Stier never had children. Her sister, who died in 1935, had only one, Charles A. Fulton. In 1937 Mrs. Stier and her nephew Charles A. Fulton executed in France, and later filed in the New York County Surrogate’s office, a document which recited the above facts and stated that Mrs. Stier was then seventy-seven years old, that she was independently wealthy and had no need of the income from her father’s estate, and that she wished to renounce that income in favor of her nephew. Mrs. Stier, in that document, then formally relinquished and renounced all right to the income, and her nephew released her, individually and as fiduciary. From the time of the execution of that paper, all the income of the estate was paid or credited to the nephew, and Mrs. Stier did not thereafter report it in her tax returns. The State says, and the Tax Commission and the Appellate Division have held, that the renunciation by Mrs. Stier was ineffective for any purpose because forbidden by section 15 of the Personal Property Law which says: “ The right of the beneficiary to enforce the performance of a trust to receive the income of personal property, and to apply it to the use of any person, can not be transferred by assignment or otherwise.” The position of appellant — and with it we agree — is that, on the death of Mrs. Stier’s sister, Mrs. Stier, though the purported trustee of a trust to pay income to herself alone, was no longer a “ beneficiary ” entitled “ to enforce the performance of a trust ” but was the owner of a legal, and thus assignable, life estate in the fund.

A century ago dry or passive trusts, being “ justly considered wholly unnecessary ”, were abrogated in this State through the addition to the Statute of Uses of “ new and appropriate provisions which vested the title in the beneficiary ” (Downing v. Marshall, 23 N. Y. 366, 379). One of the great purposes of that revision was to abolish distinctions between title and use and to convert into a legal estate the beneficiary’s interest in a naked trust (Johnson v. Fleet, 14 Wend. 176; Rawson v. Lampman, 5 N. Y. 456; Townshend v. Frommer, 125 N. Y. 446, 457). The statute accomplished this by commanding that: “ Every person, who, by virtue of any grant, assignment or devise, is entitled both to the actual possession of real property, and to the receipt of the rents and profits thereof, in law or equity, shall be deemed to have a legal estate therein, of the same quality and duration, and subject to the same conditions, as his beneficial interest * * * ” (Real Property Law, § 92). Section 92, although in terms applicable to realty, covers by analogy, trusts of personal property also, and modern courts, in New York as elsewhere, “ execute passive trusts of personalty ” as well as of realty (1 Bogert on Trusts & Trustees, § 207, citing Matter of De Rycke, 99 App. Div. 596, 597, and Matter of Cooney, 112 App. Div. 659, and 115 App. Div. 895, affd. 187 N. Y. 546; see, also, Cutting v. Cutting, 86 N. Y. 522, 546; Stringer v. Young, 191 N. Y. 157, 165, and Personal Property Law, § 11, last sentence). The trust we are here considering was not invalid while hath daughters were alive, even though they were at the same time trustees and cestuis (Rogers v. Rogers, 111 N. Y. 228; Woodward v. James, 115 N. Y. 346, 357; Restatement of Trusts, §§ 99, 115). But . the time came, as it obviously had to come unless both daughters died at the same instant, when the surviving daughter v became solely entitled to both possession and income. Every valid trust must have- a trustee who is not the sole beneficiary (Brown v. Spohr, 180 N. Y. 201, 209; Rose v. Hatch, 125 N. Y. 427, 431 et seq.; Weeks v. Frankel, 197 N. Y. 304, 311; Restatement of Trusts, §§ 99, 115 and § 152, comment m). So, when the first daughter of this testator died, Mrs. Stier had thenceforth not the kind of beneficial trust interest which is made inalienable by section 15 of the Personal Property Law, but a fully assignable legal life estate in the property. She could and did turn that interest over to her nephew.' The income thereafter accruing was his, not hers, and she properly omitted it from her returns of taxable income.

The Appellate Division, while conceding that after her sister’s death Mrs. Stier could not hold office as sole trustee for herself, held that this disability resulted in no more than a “ vacancy ” in the office of trustee. The Appellate Division’s view was that the “ vacancy ” could have been, and should have been, filled by the Supreme Court and that Mrs. Stier’s failure to ask for such an appointment should not be permitted to nullify the testator’s intent. The difficulty is that the first daughter’s death did much more than create a vacancy. It ended a trust relationship and substituted a-life tenancy (see 1 Scott on Trusts, discussion of the 27ew York rule at p. 529).

The order of the Appellate Division should be reversed, with costs in this court and in the Appellate Division, and the determination of the State Tax Commission annulled.

Loughran, Ch. J., Lewis, Conway, Thacher, Dye and Medalie, JJ., concur.

Order reversed, etc.


author: Conway, J. Thacher, J.

text:
    The People of the State of New York ex rel. Balbbook Realty Corporation et al., Respondents, against William W. Mills et al., Constituting the Tax Commission of the City of New York, Respondents. City Bank Farmers Trust Company et al., Appellants.
    Submitted October 23, 1945;
    decided March 7, 1946.

      Edwin W. Cooney for appellants.
    I. The tax refund is payable to the mortgagee bank or the receiver in the pending foreclosure action. An overpayment of taxes with funds dedicated to the mortgage is repayable to the mortgagee. The funds from which the overpayment was made were irrevocably dedicated to the mortgage. (People ex rel. 342 East 57th St. Corp. v. Miller, 262 App. Div. 132, 287 N. Y. 682; People ex rel. New York Title & Mortgage Co. v. Miller, 262 App. Div. 175, 287 N. Y. 685.) II. A mere oral agreement between the owner and the mortgagee that the owner’s agent would apply income for the benefit of the mortgagee is enforcible. (Monica Realty Corp. v. 122 Fifth Ave. Corp., 264 N. Y. 52; Dime Savings Bank v. Altman, 275 N. Y. 62.) III. Effect must be given to the intention of the parties as gathered from all the instruments. (Manson v. Curtis, 223 N. Y. 313; Wood v. Sheehan, 68 N. Y. 365.)

      Leon L. Brof for relators, respondents.
    I, As between owner and mortgagee, the owner is entitled to the rents and therefore to any refunds of taxes or charges previously paid until there is a default and the mortgagee has taken possession by receiver or through assignment of rents. (New York Life Ins. Co. v. Fulton Development Corp., 265 N. Y. 348; Lofsky v. Maujer, 3 Sand. Ch. 69; Rider v. Bagley, 84 N. Y. 461; Sullivan v. Rosson, 223 N. Y. 217; Wyckoff v. Scofield, 98 N. Y. 475.) II. Under no circumstances could the agreement of January 22, 1934, be construed as an assignment of rents to the mortgagee. (James v. Alderton Dock Yards, 256 N. Y. 298; Holmes v. Bell, 139 App. Div. 455; Wemple v. Hauenstein, 19 App. Div. 552; Donovan v. Middlebrook, 95 App. Div. 365.) III. Since the taxes here were not paid by the mortgagee out of its own moneys or moneys paid to it or its agent by the owner for the payment of taxes, interest or principal, nor by the mortgagee out of rents collected under an assignment of rents, or through a receiver, it is not entitled to any refund of overpayment of taxes. (People ex rel. 342 East 57th St. Corp. v. Miller, 262 App. Div. 132, 287 N. Y. 682; Peoyle ex rel. New York Title & Mortgage Co. v. Miller, 262 App. Div. 175, 287 N. Y. 685.)
   Conway, J.

On January 22, 1934, one Cohn executed and delivered to 166 Broadway Corporation a purchase money bond and mortgage payable in installments until its maturity date upon the premises here in question, known as 170 Broadway in New York City. Thereafter on January 26, 1934, that bond and mortgage was assigned to City Bank Farmers Trust Company (hereinafter referred to as City Bank). There were two other mortgages upon the property. The second mortgage was held by one Schlang and a third mortgage by Brown, Wheelock, Harris & Co., Inc. (hereinafter referred to as Brown, Wlteelock). Immediately after the execution of the bond and mortgage, Cohn conveyed the premises in question to Balbrook Realty Corporation (hereinafter referred to as Balbrook), On the same day, .January 22,1934, Balbrook as “ Principal ” executed a “ management contract ” with Brown, Wheelock as “ Agent ” under which the latter agreed to manage the premises, collect the rents and, after the satisfaction of all operating expenses and the making of certain other payments, then to set aside each month one twelfth of the annual taxes against the premises and then one twelfth of the annual interest and amortization requirements on the first mortgage. If there remained any balance of rents, amortization payments due and unpaid on the second mortgage were to be made and if there still remained a balance, the Agent was empowered to retain it on account of principal and interest upon its third mortgage at a rate fixed in the management contract.

To indicate clearly that, while Brown, Wheelock was required to set aside moneys for taxes, interest and payments on principal on the first and subordinate mortgages, it was not intended that the management agreement should enure to the benefit of anyone other than Balbrook and Brown, Wheelock, the following provisions were inserted:

“ It is expressly understood and agreed that this agreement shall not be deemed to be made for the benefit of any third party, including the respective owners and holders of the first and second mortgage and in no event shall the Agent be liable to the owners and holders of said first and second mortgage respectively for any matter or thing done or omitted to be done by the Agent in connection with this agreement, the management of said premises or any payment for taxes, interest, amortization payjnents or otherwise under this agreement. (Emphasis supplied.)

“ Nothing herein contained shall constitute the Agent a mortgagee in possession.”

Simultaneously with the execution of the management agreement, there was executed and delivered by Cohn, Balbrook and Brown, Wheelock to 166 Broadway Corporation a letter or instrument which recited that in consideration of the conveyance from 166 Broadway Corporation to Cohn neither Balbrook nor Brown, Wheelock would cancel or materially modify the management agreement without the consent of 166 Broadway Corporation, and Brown, Wheeloek agreed to use due diligence to avoid any act or omission which would justify termination of the management agreement by Balbrook. Again, however, in order that no equities in favor of 166 Broadway Corporation, Balbrook or Brown, Wheeloek would arise, it was provided in that letter as follows: “ Each of the undersigned parties, for itself agrees as to such management agreement and respecting its interest in the said premises, that neither the existence of the same nor your knowledge of its contents, nor the carrying out of the arrangements as to the payments from income collected contemplated therein, nor the receipt of this letter, nor anything contained therein, shall in any way waive or modify any term, covenant or condition of said purchase money mortgage, and on a default therein, despite any provision of said management agreement, you, or any subsequent holder of said mortgage, shall be entitled to exercise and employ all and any rights, options and remedies allowed or given by the terms of such mortgage to the holder thereof in the event of default, and to make any applications to court or bring any proceedings given by law to enforce any such rights and remedies. You are not to be considered a mortgagee in possession by reason hereof.” (Emphasis supplied.)

The instant proceeding was brought to review the tax assessment of the City of New York against the premises in question for the tax year 1943-44. After trial at Special Term in 1944, the assessment was-found to be erroneous by reason of overvaluation and a refund of the overpayment was directed. Thereafter, in 1945 the City Bank and a receiver in a foreclosure action commenced by it, brought on a motion for leave to intervene and for a direction that the City of New York make such refund to them. The Appellate Division affirmed the order denying the motion. We granted leave to appeal.

The general rule is that, as between the owner and a mortgagee, the former is entitled to the rents and hence to any refund of taxes paid until there is a default and the mortgagee has had a receiver appointed by the court or has obtained an assignment of rents. (Sullivan v. Bosson, 223 N. Y. 217; N. Y. Life Ins. Co. v. Fulton Development Corp., 265 N. Y. 348, 352.) Certainly the management agreement here may not be construed as an assignment of rents to the first mortgagee. That mortgagee was not a party to it and Balbrook and Brown, Wheelock expressly provided'that it was not to be for its benefit. Even if it could be assumed that it was an agreement made with the first mortgagee under which the owner was to make payments of taxes out of a specific fund, it would not constitute an assignment of rents. (Thomas v. N. Y. & G. L. R. Co., 139 N. Y. 163, 179; James v. Alderton Dock Yards, 256 N. Y. 298, 303.) In the latter case, it was said: “It is settled law in this State that an agreement either by paroi or in writing to pay a debt out of a designated fund does not give an equitable lien upon the fund nor operate as an equitable assignment thereof.”

There is here no contention that there ever was any agreement other than the management agreement of January 22, 1934, and the supplemental letter of the same date. The taxes were not paid by City Bank as assignee out of its own funds. They were not paid by City Bank out of funds paid to it or its agent by the owner for the purpose of paying the taxes. (See People ex rel. 342 East 57th Street Corp. v. Miller, 262 App. Div. 132, affd. 287 N. Y. 682.) They were not paid out of rents collected under an assignment of rents or through the appointment of a receiver. Subsequent to the alleged defaults, there was neither an assignment of rents nor a taking of possession by the mortgagee nor any other agreement, oral or written, whereby the rents were pledged, assigned, or trusteed to the mortgagee. This is not a case where the mortgagee has recovered a judgment, nor where a special statute governs after a sale has been had and a deficiency established. (See People ex rel. N. Y. Title & Mortgage Co. v. Miller, 262 App. Div. 175, affd. 287 N, Y. 685.) This is not a case where subsequent to the claimed defaults, the owner has committed any acts amounting to an estoppel. There was here no forbearance as in Monica Realty Corp. v. 122 Fifth Ave. Corp. (264 M. Y. 52.) On the contrary, in the letter which we have quoted (supra) Balbrook agreed that there should be no forbearance. Equity could help the appellants if there were any equities existent. Here, the assignor of City Bank, Balbrook and Brown, Wheelock carefully contracted for their own purposes that there should be no equities. Counsel urges that there is inconsistency between the management agreement and the letter because the letter provided that the agreement between Brown, Wheelock and Balbrook should be neither canceled nor materially modified without the written consent of the appellants’ assignor. No doubt the assignor of City Bank wished the benefit of the management of a responsible agent which had just been appointed. That would not lead to a finding of inconsistency. Moreover, any claim of inconsistency has been resolved against the appellants. More likely it seems that no one ever contemplated an overpayment and consequent refund of taxes back in 1934 when the instruments were drawn.

The order should be affirmed, with costs.

Thacher, J.

(dissenting). With the statement of the general rule by the majority that, as between the owner and a mortgagee, the former is entitled to any refund of taxes until there is a default and the mortgagee has had a receiver appointed by the court or has obtained an assignment of rents, we are in accord. (Sullivan v. Bosson, 223 N. Y. 217; N. Y. Life Ins. Co. v. Fulton Development Corp., 265 N. Y. 348.) We agree, also, that this general statement of the rule must be qualified to meet the equities which may arise in any case. (Sullivan v. Bosson, supra.) In this case we believe there was such an equity. For that purpose no special agreement need be shown or any actual assignment or strict estoppel. The circumstances affecting the equities of the parties will suffice and may not be ignored. (Monica Realty Corp. v. 122 Fifth Ave. Corp., 264 N. Y. 52, 55.) In that case the senior mortgagee permitted the junior mortgagee to go ahead with foreclosure proceedings, provided the receiver should be instructed, after payment of operating expenses, to turn over the balance of his collections to the senior mortgagee. It was held that good faith required that such an understanding be upheld. The arrangement in that case provided for the payment of the net proceeds to the senior mortgagee. Here there was a similar arrangement, and the third, mortgagee, who was allowed to go into possession and to manage the property, was required to pay out of the proceeds taxes and interest and amortization charges required to be paid to the first mortgagee under the terms of the mortgage. Contemporaneously with the making of this arrangement, the mortgagor, the third mortgagee and the original holder of the first mortgage executed and delivered to the 166 Broadway Corporation an instrument in writing reciting that this agreement would not be canceled, modified or abrogated without the consent of the first mortgagee. This promise was recited to have been given in consideration of the conveyance of the mortgaged premises to the mortgagor, who gave back the purchase money mortgage to the first mortgagee. To be sure, it was intended that neither this assurance nor the management agreement itself should disturb the terms and provisions of the mortgage or any rights or remedies provided thereunder, including, but not limited to, foreclosure and the appointment of a receiver. The delivery of these written assurances to the first mortgagee was, however, a fact and a representation upon which the mortgagee was invited to rely if he wished to do so. There was no other conceivable purpose for the execution and delivery of the document. The original mortgagee and the present holder of the mortgage — one of the appellants herein — having refrained from exercising the right to foreclose and be possessed of the rents, we think that in equity and good conscience the tax refund should be paid to the present holder of the mortgage. These taxes which are to be refunded were in fact paid by the third mortgagee out of rents collected from the tenants of the mortgaged premises and should have been paid to the first mortgagee under the terms of the management contract.

We dissent from the opinion of the court and vote to reverse the judgment appealed from, with directions for further proceedings in accordance with this opinion, an issue having been raised as to the date of the default.

Lewis, Desmond, Dye and Medalie, JJ., concur with Conway, J.; Thacheb, J., dissents in opinion in which Loughban, Ch. J., concurs.

Order affirmed.


text:
    Vincent J. Kane, Individually and as President of the Uniformed Firemen’s Association, et al., Appellants, v. Patrick Walsh, as Fire Commissioner and Chief of the Fire Department of the City of New York, Respondent.
    Argued November 28, 1945;
    decided March 7, 1946.

      David A. Savage and Frank A. Rossini for appellants.
    I. Section 248 of the Rules and Regulations for the Uniformed Force of the Fire Department" of the City of New York and the order of the defendant issued on May 29, 1944, constitute an abridgement of rights guaranteed to plaintiffs under the Constitution of the United States and the Constitution of the State of New York. (Thornhill v. Alabama, 310 U. S. 88; Palko v. Connecticut, 302 U. S. 319; Mooney v. Holohan, 294 U. S. 103; Railway Mail Assn. v. Corsi, 293 N. Y. 315; Matter of Hagan v. Picard, 171 Misc. 475, 258 App. Div. 771; Nichols v. Commonwealth of Massachusetts, 308 U. S. 147; Lovell v. City of Griffin, 303 U. S. 444; Matter of Gallaher v. American Legion, 154 Misc. 281, 242 App. Div. 604, 242 App. Div. 630; Near v. Minnesota, 283 U. S. 697; Patterson v. Colorado, 205 U. S. 454; Carder Realty Corp. v. State of New York, 260 App. Div. 459; Hague v. C. I. O., 307 U. S. 496; Board of Education v. Barnette, 319 U. S. 624.) II. By section 248 and the verbal order of May 29, 1944, defendant attempted to assume lawmaking powers which never have been conferred upon him and could not be conferred upon him by the Legislature. (Matter of Gallaher v. American Legion, 154 Misc. 281, 242 App. Div. 604, 242 App. Div. 630; People v. Barber, 289 N. Y. 378.) III. Section 248 and the order of the defendant are unreasonable on their face, arbitrary in their character, constitute a denial of reasonable liberty of action and transcend due bounds of legislative power irrespective of constitutional provisions, State or national. (State ex rel. Kennedy v. Remmers, 340 Mo. 126; State ex rel. Christian v. Barry, 123 Ohio 458; Murdock v. Pennsylvania, 319 U. S. 105; United States v. Cruikshank, 92 U. S. 542.) IV. Section 248 and the verbal order are void under the provisions of section 15 of the Civil Bights Law. (New York City Charter, § 904; Administrative Code of the City of New York, § 904-1.0; Acorn Employment Service, Inc., v. Moss, 292 N. Y. 147.) V. A cause or controversy exists and this suit for a declaratory judgment is proper. (Aetna Life Ins. Co. v. Hayworth, 300 U. S. 227; Acorn Employment Service, Inc., v. Moss, 292 N. Y. 147; Columbia System v. United States, 316 U. S. 407; Putkowski v. Carey, 182 Misc. 1023; McBride’s Theatre Ticket Office v. Moss, 183 Misc. 14; People ex rel. McNish v. Waldo, 212 N. Y. 348; Neubeck v. McDonald, 128 Misc. 768.) VI. Injunction is the proper method to enjoin the defendant from enforcing section 248 and his order of May 29, 1944. (Walla Walla v. Walla Walla Water Co., 172 U. S. 1; Tyler v. Savage, 143 U. S. 79; Lang’s Creamery, Inc., v. City of Niagara Falls, 224 App. Div. 483; Wilkie v. City of Chicago, 188 Ill. 444; Strobel v. Kerr Salt Co., 164 N. Y. 303.)

      Zarah Williamson for New York City Committee of the American Civil Liberties Union, amicus curiae, in support of appellant’s position.
    I. The Fire Commissioner’s ruling of May 29, 1944, is void not only as flouting section 15 of the Civil Bights Law, but also as flouting the enlightened public policy of' this State. (Matter of Hagan v. Picard, 171 Misc. 475, 258 App. Div. 771; Railway Mail Assn. v. Corsi, 293 N. Y. 315; People v. Schweinler Press, 214 N. Y. 395; Klein v. Maravelas, 219 N. Y. 383.) II. Section 15 of the Civil Rights Law, squarely repudiating any previous conception, has declared it as the law of the State that a citizen shall not be deprived of the right -to appeal to the Legislature, or to any public officer, board, commission or other public body, for the redress of grievances, on account of employment in the civil service. I'll. The State Labor Relations Act does not exclude civil service workers from the guarantee of the right to “ appeal ” given by section 15 of the Civil Rights Law. Section 15 of the Civil Rights Law allows for no exception. (White v. Boland, 254 App. Div. 356; People ex rel. Clifford v. Scannell, 74 App. Div. 406; McAuliffe v. Mayor of New Bedford, 155 Mass. 216; Railway Mail Assn. v. Corsi, 293 N. Y. 315; Abrams v. United States, 250 U. S. 616; Milwaukee Pub. Co. v. Burleson, 255 U. S. 407; United States v. Schwimmer, 279 U. S. 644; New York City Charter, § 904.) IV. Wholly apart from section 15 of the Civil Rights Law, the concept of a sound public policy which has by now developed leaves no choice but to extinguish the ruling of May 29, 1944, as an outlandish anachronism. (Matter of Hagan v. Picard, 171 Misc. 475, 258 App. Div. 771; Railway Mail Assn. v. Corsi, 293 N. Y. 315; Railway Mail Assn. v. Murphy, 180 Misc. 868.) V. Section 248 of the rules of the Fire Department ought also to be stricken down because the pervasive threat inherent in its very existence is an encroachment upon the firemen’s rights granted them by section 15 of the Civil Rights Law. (Thornhill v. Alabama, 310 U. S. 88; Matter of Natilson v. Hodson, 264 App. Div. 384; Kansas City Ry. v. Anderson, 233 U. S. 325; Poindexter v. Greenhow, 114 U. S. 270; Matter of Berger v. Walsh, 266 App. Div. 592, 291 N. Y. 220; Stromberg v. California, 283 U. S. 359; Herndon v. Lowry, 301 U. S. 242; De Jonge v. Oregon, 299 U. S. 353.)

      Ignatius M. Wilkinson, Corporation Counsel (Seymour B. Quel and Helen R. Cassidy of counsel), for respondent.
    I. The appeal does not raise any substantial question involving the constitutional rights of the plaintiffs. The constitutional rights which members of the Fire Department possess as individuals cannot invalidate a regulation prescribed as a condition of their employment. (Matter of Fullen v. Board of Estimate,
      264 N. Y. 463; Gans v. Callaghan, 256 N. Y. 552; Matter of Weiss v. Wickwire Spencer Steel Corp., 242 N. Y. 533; People ex rel. Clifford, v. Scannell, 74 App. Div. 406, 173 N. Y. 606.) II. Buies and regulations governing public employment are paramount and the constitutional rights of employees as individuals must necessarily yield to the conditions of their employment. (McAvoy v. Press Pub. Co., 114 App. Div. 540; McAuliffe v. New Bedford, 155 Mass. 216; Duffy v. Cooke, 239 Penn. 427; Brownell v. Russell, 76 Vt. 326; Neustein v. Mitchell, 52 F. Supp. 531; Stewart v. U. S. Civil Service Commission, 45 F. Supp. 697; United Federal Workers of America v. Mitchell, 56 F. Supp. 621.) III. Section 248 of the rules and regulations of the Fire Department is a reasonable exercise of a power of regulation over the Fire Department conferred upon the Fire Commissioner. (Majewski v. Farley, 203 App. Div. 77; Matter of Natelson v. Portfolio, 291 N. Y. 290; Matter of Apel v. Moss, 256 App. Div. 607; Matter of Friedman v. Valentine, 177 Misc. 437, 266 App. Div. 561; Fawcus Machine Co. v. United States, 282 U. S. 375; Chicago, R. I. & P. Ry. Co. v. U. S., 284 U. S. 80; People ex rel. Clapp v. Listman, 40 Misc. 372; Matter of Walsh v. La Guardia, 269 N. Y. 437; People ex rel. Lieberman v. Van de Carr,. 175 N. Y. 440, 199 U. S. 552; City of Albany v. Newhof, 230 App. Div. 687, 256 N. Y. 661; City of Buffalo v. Hill, 79 App. Div. 402.) IV. There is no existing justiciable controversy between the parties and therefore an action for a declaratory judgment cannot be sustained. (New York Operators v. State Liquor Authority, 285 N. Y. 272; Pratt v. La Guardia, 182 Misc. 462, 268 App. Div. 973.)
   Lewis, J.

Our inquiry goes to the legal sufficiency of the complaint in this action. The plaintiffs present for review a judgment entered upon an order of the Appellate Division which unanimously affirmed a judgment of Special Term dismissing the complaint upon defendant’s motion under rule 106 of the Buies of Civil Practice.

In those circumstances we treat as admitted by the defendant the allegations of fact found in the complaint. (Nevins, Inc., v. Kasmach, 279 N. Y. 323, 324-325.) From those allegations it appears that the plaintiffs are members of the Fire Department of the City of New York and are officers of the Uniformed Firemen’s Association, to which organizations reference will be made respectively as the 11 Department ” and the Association.” The Association, comprising more than seven thousand members, represents 95% of all uniformed members of the Department. There came a time when through its officers the Association instituted a proceeding to restrain the defendant Fire Commissioner from enforcing an order issued by him on December 30, 1943, directing all members of the uniformed force to perform twenty-four extra hours of duty in every twenty days. We take judicial notice of the fact that the proceeding thus instituted terminated unfavorably to demands asserted by the Association. (Matter of Kane v. Walsh, 181 Misc. 513, 594, affd. 268 App. Div. 763, affd. 293 N. Y. 923.) That litigation is alleged to have prompted statements to the press by local' municipal officers concerning working conditions within the Department, the attitude and discipline of the uniformed force and accusations which are construed by the plaintiffs as having impugned the good faith and patriotism of the members of the Association during the prevalence of war conditions. At a meeting of the Association held in May, 1944, a Public Eelations Committee was appointed to present to the public information concerning the working conditions of firemen within the Department and to answer the alleged accusatory statements made by municipal officers. Thereafter there was issued to the local press by the Public Delations Committee a statement setting forth the' position of the members of the Association in instituting the proceeding which they had' prosecuted unsuccessfully. Following the publication of that state-1 ment the defendant Fire Commissioner on May 29,1944, directed the plaintiff, Vincent J. Kane, to make no further statements of any kind, either for publication or otherwise, concerning the members of the Association in relation to the Department, and further directed him to convey such order to all officers of the .Association. The plaintiff Kane was also told by the Fire Commissioner that unless his order was obeyed concerning' the making of any statements that he would discipline each and every one responsible for any statement made, and would invoke the provisions contained in Buie 248 [§ 248] of the Eules of the Fire Department of the City of Few York.”

Section 248 of the Eules and Eegulations for the Uniformed Force of the Fire Department provides:

“ Members shall not sanction the use of their names or photographs, in connection with any written or printed article, nor with an advertisement in any magazine or newspaper, without the written approval of the Chief of Department.

“ This rule shall not prohibit the use of photographs, in connection with a printed account of Members participating in rescue and other work at fires, or in connection with the history of Members appointed or promoted.”

The plaintiffs in the present action complain that both section 248, quoted above, and the directive issued by the defendant Fire Commissioner on May 29, 1944, are arbitrary, unreasonable, capricious and unconstitutional, and that to invoke either section 248 or the directive of May 29, 1944, will cause irreparable damage to the officers and members of the Association and will violate the rights of freedom of speech, press and petition guaranteed by the Federal and State Constitutions.

By the first alleged cause of action the plaintiffs demand judgment that the defendant Fire Commissioner, his agents and successors be “ restrained and' enjoined ” from enforcing section 248 and the directive issued by him on May 29, 1944, and from making effective against any officer or member of the Association any disciplinary measure for a violation of such section or directive.

We are persuaded that in the circumstances upon which plaintiffs base their demand for equitable relief the extraordinary remedy afforded by injunction may not be invoked. Among those allegations in the complaint deemed admitted by the defendant is the fact that by his directive of May 29, 1944, the Fire Commissioner has given notice that unless such directive is obeyed he will discipline “ each and every one responsible ” for any statement made in violation thereof, and will invoke section 248 of the Bules and Begulations of the Fire Department. The plaintiffs have no absolute right to a mandatory injunction which is an extraordinary remedy to be granted or withheld by a court of equity in the exercise of its discretion. (Lexington & Fortieth CorP. v. Callaghan, 281 N. Y. 526, 531.) Not every apprehension of injury will move a court of equity to the exercise of its discretionary powers. Indeed, “ Equity * * * interferes in the transactions of men by preventive measures only when irreparable injury is threatened, and the law does not afford an adequate remedy for the contemplated wrong.” (Thomas v. M. M. P. Union, 121 N. Y. 45, 52.)

In the present case the act sought to be enjoined can be dealt with under article 78 of the Civil Practice Act which makes available to the plaintiffs a legal remedy in the nature of mandamus which is adequate to redress the plaintiffs’ grievance. (See Southern Leasing Co. v. Ludwig, 217 N. Y. 100, 103-104; Matter of Cary v. Binghamton City Council, 290 N. Y. 247, 248-249; 1 High on Injunctions [4th ed.], § 28 at p. 44.) For that reason we are in agreement with the judgment insofar as it dismisses the first alleged cause of action.

For their second cause of action the plaintiffs again plead facts upon which the first cause is based and thereupon they demand a judgment declaring section 248 and the order issued by the defendant on May 29, 1944, to be illegal, ■ arbitrary, unreasonable and unconstitutional. As to the second cause of action we agree with the rulings at Special Term and the Appellate Division insofar as they adjudicate that section 248 is a reasonable exercise by the defendant Fire Commissioner of his right to prescribe rules and regulations affecting the discipline of the uniformed members of the Department. We cannot say that section 248 bears no reasonable relation to a purpose by the defendant in good faith to promote the efficiency and best interests of the Department. It does not deprive members of the uniformed force of the right granted by section 15 of the Civil Bights Law to appeal to the Legislature, or to any public officer, board, commission or other body for the redress of grievances.. The implication is clear that under the challenged section uniformed members of the Department may permit the use of their names or photographs in connection with any written or printed article, or advertisement in any magazine or newspaper, provided “ the written approval of the Chief of Department ” is secured. The legal presumption is not that su'ch permission will be denied arbitrarily, unreasonably or capriciously. On the contrary — “ It is presumed that public officials will discharge their duties honestly and in accordance with the rules of law.” (People ex rel. Lieberman v. Vandecarr, 175 N. Y. 440, 446, affd. 199 U. S. 552.) “We may declare such a regulation invalid only in the event that it is so lacking in reason for its promulgation that it is essentially arbitrary.” (Matter of Stracquadanio v. Dept. of Health, 285 N. Y. 93, 97.)

We think, however, that the defendant’s order of May 29, 1944, was so broad in scope and so rigid in terms as to be arbitrary and unreasonable. True it is that “ * * * the government, discipline, management, maintenance and direction of the fire department ” is within the sole and exclusive power ” granted to the defendant who is authorized to make rules and regulations for the conduct of the Department. (New York City Charter, §§ 487-a, 885-a.) However, we know of no statutory power granted to the defendant directly or by implication which permitted him to deprive the plaintiffs — who, as firemen, are civil service employees — of the right to make “ statements of any kind, either for publication or otherwise, concerning the members of the Uniformed Firemen’s Association, in relation to the Fire Department ”. (Emphasis supplied. ) Indeed, by section 15 of the Civil Eights Law, the Legislature has unequivocally declared it to be the public policy of this State that — “ Notwithstanding the provisions of any general or special law to the contrary, a citizen shall not be deprived of the right to appeal to the legislature, or to-any public officer, board, commission or other public body, for the redress of grievances, on account of employment in the civil service of the state or any of its civil divisions or cities.” (See, also, New York City Charter, § 904; Administrative Code of the City of New York, § 904 — 1.0.) It will be noted that the statute does not exclude any of those many categories of employees, including firemen, within £ £ the civil service of the state or any of its civil divisions or cities.” The right created by the statute quoted above is made available by the Legislature to any ££ citizen ”. We may not by judicial construction redefine a statutory right which the Legislature has defined in clear language. “ We may not define the bounds within which that power may be ■ exercised, except as we find such bounds implicit in the statute, read in the light of established public policy.” (Westchester Mortgage Co. v. G. R. S I. R. R. Co., 246 N. Y. 194, 199; Woollard v. Schafer Stores Co., 272 N. Y. 304, 311.)

By section 476 of the Civil-Practice Act ££ * * * a judgment may be rendered by the court as to a part of a cause of action * * In this instance an effective judgment can be rendered sustaining a part of the complaint without fatal mutilation of the entire pleading. (See Lowe v. Lowe, 265 N. Y. 197, 202-203.)

The judgment should be modified insofar as it dismisses that part of the second cause of action which seeks a declaratory judgment with respect to the directive alleged to have been issued by the defendant Fire Commissioner on May 29, 1944, and as to such part of the second cause of action the defendant’s motion should be denied, and as so modified the judgment should he affirmed, with costs to the plaintiffs in this court.

The judgments should be modified in accordance with this opinion and as so modified affirmed, with costs in this court to the plaintiffs.

Lotjghban, Ch. J., Conway, Desmond, Thacheb, Dye and Medalie, JJ., concur.

Judgment accordingly.