text:
    In the Matter of Anthony Arcadu, Respondent, against David Levinson et al., Appellants.

      (Argued February 13, 1929;
    decided March 19, 1929.)

      Israel Ben Scheiber and Bernard W. Smith for appellants.

      Myle J. Holley for respondent.
   Per Curiam.

A motion was made in Special Term under Civil Practice Act, § 1457, to vacate the award of arbitrators on a submission to arbitration. The motion was denied. The Appellate Division reversed on the law and the facts and granted the motion on the ground of the " evident partiality ” of one of the arbitrators. An appeal to this court was taken without leave of the Appellate Division. We are asked to review the facts as found by the Appellate Division under the provisions of Civil Practice Act, § 589, subd. 2. (Matter of Flagler, 248 N. Y. 415.)

Under Civil Practice Act, § 1456, a motion may be made by any party to the submission to confirm an award. The court must grant the order unless the award is (a) vacated or (b) modified or corrected. Either party may make a motion (a) to vacate an award under Civil Practice Act, § 1457, or (b) to modify or correct an award under Civil Practice Act, § 1458. Upon the granting of an order confirming, modifying or correcting an award, judgment may be entered in conformity therewith. (Civil Practice Act, § 1461.) The judgment so entered is regarded in all respects as a judgment in an action and is subject to all the provisions of law relating to such a judgment. (Civil Practice Act, § 1463.)

Civil Practice Act (§ 1464) provides:

§ 1464. Appeals. An appeal may be taken from an order vacating an award, or from a judgment entered upon an award, as from an order or judgment in an action. The proceedings upon such an appeal, including the judgment thereupon and the enforcement of the judgment, are governed by the provisions of statute and rule regulating appeals in actions as far as they are applicable.”

When an order is made confirming, modifying or correcting an award, the appeal lies from the judgment entered thereon and not from the order. (Matter of Picker, 130 App. Div. 88; Brimberg v. Basch & Co., Inc., 185 App. Div. 887; Berizzi Co. v. Krausz, 239 N. Y. 315.)

An order denying a motion to confirm an award seems to have been regarded as a final order in a special proceeding in Matter of Bullard v. Grace Co. (240 N. Y. 388), but the question of jurisdiction was not considered in that case. An order granting or denying a motion to correct or modify an award is not a final order; nor is an order denying a motion to vacate an award. Although an order vacating an award, without ordering a rehearing by the arbitrators, has an element of finality, an appeal therefrom lies only as from an order in an action. (Civil Practice Act, § 1464, supra.)

Not every order which ends a proceeding in the sense that one party or the other can go no further is a final order in the sense contemplated by the Constitution and the Civil Practice Act. (Van Arsdale v. King, 155 N. Y. 325, 328.)

“ The Legislature may further restrict the jurisdiction of the "Court of Appeals and the right of appeal thereto.” (Const. art. VI, § 7, subd. 5.) Regarding, as we must, the order vacating the award as in the nature of an intermediate order so far as the right of appeal to this court and the jurisdiction of this court to entertain it are concerned, the appeal does not lie as matter of right. No leave to appeal has been' obtained from the Appellate Division under Civil Practice Act, § 588, subd. 4. The appeal to the Appellate Division was final. (Civil Practice Act, § 631.)

The appeal should be dismissed, with costs.

Cardozo, Ch. J., Pound, Crane, Lehman, Kellogg, O’Brien and Hubbs, JJ., concur.

Appeal dismissed, etc.


source: Caselaw Access Project

author: Crane, J. Lehman, J.

license: Public Domain

text:
    The People of the State of New York, Respondent, v. Patrick J. McCarthy and Thomas Robinson, Appellants.

      (Argued February 18, 1929;
    decided March 19, 1929.)

      Alexander I. Rorke for appellants.
    The Court of Special Sessions acquired no jurisdiction either of the subject-matter or of the defendants-appellants. (People ex rel. Livingston v. Wyatt, 186 N. Y. 383; People v. Magrino, 168 N. Y. Supp. 354; People ex rel. Lawton v. Snell, 216 N. Y. 527; People ex rel. Lotz v. Norton, 76 Hun, 7; People v. Dillon, 197 N. Y. 254; People ex rel. Phillips v. Hanley, 64 App. Div. 150.) The alleged conspiracy was not established and the finding of guilty was contrary to the law and evidence. (People v. Razezics, 206 N. Y. 249;
      People v. Bennett, 49 N. Y. 137; People v. Fitzgerald, 156 N. Y. 253; People v. Suffolk Contracting Co., 171 App. Div. 645.)

      Joab H. Banton, District Attorney (Michael J. Driscoll of counsel), for respondent.
    The successive orders granting permission to defendants to appeal to this court and the successive orders granting the motion for a certificate of reasonable doubt were error and hence the appeal should be dismissed. (People v. Goldberger, 219 App. Div. 259; People v. Wolf, 247 N. Y. 189; People v. Kevlon, 247 N. Y. 191; People v. Doran, 246 N. Y. 409; People ex rel. Corkran v. Hyatt, 172 N. Y. 197; Hannon v. Siegel-Cooper Co., 164 N. Y. 566; People v. Schmidt, 216 N. Y. 324; Waldo v. Schmidt, 200 N. Y. 199.) The chief city magistrate had jurisdiction to conduct the examination and to hold defendants for trial in the Court of Special Sessions. (People ex rel. Willett v. Quinn, 150 App. Div. 813; People ex rel. Livingston v. Wyatt, 186 N. Y. 383; City of Buffalo v. Neubeck, 209 App. Div. 391; People ex rel. Corkran v. Hyatt, 172 N. Y. 176.) The Court of Special Sessions obtained jurisdiction under the information filed by the district attorney. (People v. Schmidt, 216 N. Y. 329; Roberts v. Reilly, 116 U. S. 80; Matter of N. Y., L. & W. R. R. Co., 98 N. Y. 447; Matter of Blum, 9 Misc. Rep. 571; People v. Raport, 193 App. Div. 135; People v. Ostrander, 144 App. Div. 860; Dodge v. Cornelius, 168 N. Y. 860; People ex rel. Hertz v. Warden, etc., 149 App. Div. 939; People v. Perrin, 170 App. Div. 375; People v. Dillon, 197 N. Y. 254; Hunt v. Hunt, 72 N. Y. 217.) The information filed in the Court of Special Sessions is not defective. (People v. Olsen, 15 N. Y. Supp. 778; People v. Miles, 123 App. Div. 871; 192 N. Y. 541; People v. Peckens, 153 N. Y. 576; People v. Van Tassel, 156 N. Y. 565; People v. Miles, 128 App. Div. 862; People v. Willis, 34 App. Div. 203; 158 N. Y. 392; People v. Colantone, 243 N. Y. 138; Wood v. Duff-Gordon, 222 N. Y. 88.) The testimony fully established the conspiracy and the finding of guilty was not contrary to the law and the evidence. (People v. Smith, 57 Hun, 332; People v. Canadian Fur Trappers Corp., 248 N. Y. 159; People v. Jung Hing, 212 N. Y. 393; People v. De Simone, 225 N. Y. 261; People v. Laudiero, 192 N. Y. 304.)
   Crane, J.

There seems to be some misunderstanding of the practice under section 520, subdivision 3, of the Code of Criminal Procedure. This provides for an allowance of an appeal to this court in the following words: “ If a judge of the court of appeals or a justice of the appellate division of the supreme court of the department in which such conviction was had certifies that a question of law is involved which ought to be reviewed by the court of appeals, then a further appeal on such question of law may be taken to the court of appeals.”

Only one such application can be made. It may be made to any judge of the Appellate Division or to any judge of the Court of Appeals. The application is to the judge personally, not to the court. The judge must hear the application, if made to him. When, however, he has heard and denied the application, it is final — application cannot be made to any other judge either of the Appellate Division or of the Court of Appeals. If this were not so, it would be possible for the application to be made to all of the judges of these courts in succession. Under section 529, it is specifically provided that when one application has been made for a certificate of reasonable doubt, no other application for such certificate shall be made. The reasoning in Carlisle v. Barnes (183 N. Y. 272) in reference to applications for leave to appeal under section 191 of the Code of Civil Procedure has equal force to the applications under section 520 of the Code of Criminal Procedure.

In People v. Goldsmith (249 N. Y. 586) the application was made in the first instance to the Appellate Division as a court. We decided that this was not a compliance with section 520. In this case an order to show cause was obtained returnable before —— one of the justices of the Appellate Division. No justice was named. The application was not made to a justice of the Appellate Division. It was so considered by that court, which denied the motion for leave to appeal as a court, five justices sitting. (225 App. Div. 660.) Under these circumstances one of the judges of this court on application duly made, granted leave to appeal, considering, as he was justified in doing, that no previous application had been made to a justice of the Appellate Division within the meaning of section 520, subdivision 3, of the Code of Criminal Procedure.

Moreover, where an order for leave to appeal has been improperly made, the proper and the better practice is to move to vacate the order, and not to wait until the argument of the appeal to raise the point. (Carlisle v. Barnes, supra.)

I repeat, however, that the attorney for the proposed appellant may choose any one of the judges of the Appellate Division or of the Court of Appeals before whom to make his application for leave to appeal, but having made his choice, he is bound by it. He cannot again apply to any other judge.

Passing to the merits of this case, we find the information alleging a conspiracy to cheat and defraud the city of money in that the defendants, taking count of the number of truck loads of snow removed from the streets by one Joseph Dolan, as subcontractor, did falsely certify that said Joseph Dolan and his employees had removed and carried away 43 instead of 31 truck loads of snow. On the trial it was stated that the city of New York contracted with John Meehan & Sons, at forty-seven cents a cubic yard. After describing the method of checking the trucks as they were dumped at One Hundred and Thirty-fifth street and the Harlem river, the assistant superintendent of snow removal testified that it was on the checks or reports or tickets furnished by the defendants as watchers or checkers that the contractor is paid for the removal of the snow. There was evidence by Joseph Kaszubski, an employee of the Commissioner of Accounts to check the checkers, or to watch the defendants, that the eight carts designated carried only 33, not 45 loads. There seems to be this variance between the information and the testimony, the information saying 43 and 31 loads, and giving the name of Dolan as contractor instead of Meehan. No point, however, was made of these variances on the trial, the motion made at the end of the case being based solely on the ground “ that the facts shown are as consistent with innocence as they are with guilt.” In a criminal case as in any other, certain facts may be conceded or variances waived. (People v. Jackerson, 247 N. Y. 36.) To this statement there are exceptions; the death of a person in murder or manslaughter cases must be proved. (Penal Law, § 1041.) I take it also that a defendant’s counsel could not admit premeditation and deliberation any more than he could plead guilty to murder in the first degree in behalf of his client. These variances, therefore,.not raised upon the trial, cannot be pressed now as reasons for reversal. If the attention of the Special Sessions judges or of the District Attorney had been called to these matters, the proper proof might have been supplied and the proper amendments made.

The evidence shows that One Hundred and Thirty-fifth street and the Harlem river was the place designated for dumping. Kaszubski saw no dumping at One Hundred and Thirty-fourth street. It was suggested by one of the defendants that trucks went through One Hundred and Thirty-fourth street. The fact that the defendant thus testifying stood at One Hundred and Thirty-fifth street to do his checking, and that all the trucks after two o’clock in the afternoon apparently went through One Hundred and Thirty-fifth street according to his own checking and the testimony of Kaszubski makes, we think, these matters and this testimony one of fact. In other words, although the evidence is decidedy meager and thin, we cannot say that there was no evidence to sustain the conclusions of guilt as found by the triers of fact, the judges of Special Sessions. This court cannot review the facts or the weight of evidence.

This trial was in March of 1927. The defendants were sentenced in March of 1928. In the meantime a motion had been made by new counsel to set aside the conviction on the ground that the magistrate had held the preliminary hearings outside the district specified in section 75 of the Inferior Criminal Courts Act; and that having conducted a general investigation into the acts of the city employees in snow removal, he had no jurisdiction to hold the defendants for the Special Sessions.

The magistrate had jurisdiction to hear the charge of. conspiracy, which is a misdemeanor, and to hold the defendants on sufficient evidence for trial in the Court of Special Sessions. If he held his hearings in the wrong district it was an irregularity which could have been and was waived. No objection was made to his proceeding, in fact it appears from the papers that the hearings were had in the downtown branch of the court as a convenience to all parties. The magistrate, after hearing the ease, held the defendants for the Special Sessions, pursuant to section 221 of the Code of Criminal Procedure, and the District Attorney proceeded by filing his information, pursuant to section 742 of that act.

It is too late now to go back to examine the regularity of the proceedings in the Magistrates’ Court. The defendants appeared, evidence was taken, they were held for the Special Sessions in accordance with the law, and an information was properly filed. The Special Sessions had jurisdiction to hear and try the case, especially as these points were not raised upon the trial, not, in fact, until over six months after the trial. In People v. Dillon (197 N. Y. 254) the defendant was discharged by the magistrate. This court held that the Special Sessions had no jurisdiction to try the case on an information filed by the District Attorney unless a magistrate had first heard the case and held the defendant for trial in that court. The District Attorney could proceed by indictment, but not by information without following the practice outlined in the Code of Criminal Procedure. Here the defendant was held in accordance with that procedure. In People ex rel. Livingston v. Wyatt (186 N. Y. 383) the action of the magistrate was immediately challenged by an application for a writ of prohibition, and this court there indicated in denying the right to the writ the remedy in a proper case.

We have considered these points raised by the defendants, although in our judgment they are not strictly before us. The proceedings before the magistrate and the Court of Special Sessions were regular upon their face and in accordance with the practice outlined in the Code of Criminal Procedure. Whatever irregularities, if any, may have existed in the preliminary steps before the magistrate as to the place of hearing and the extent of the investigation, these were waived by the defendants’ acquiescence and failure to object until months after the trial.

The judgments should, therefore, be affirmed.

Lehman, J.

(concurring in result). After a judgment of conviction has been reviewed by one appellate tribunal, further appeal to this court lies only when authorized by the provisions of section 520 of the Code of Criminal Procedure, as amended by chapter 465 of the Laws of 1926. The Legislature might have provided that the decision of the appellate tribunal upon the first appeal should be final. It has not chosen to do so. “ If a judge of the court of appeals or a justice of the appellate division of the supreme court of the department in which such conviction was had certifies that a question of law is involved which ought to be reviewed by the court of appeals, then a further appeal on such question of law may be taken to the court of appeals.” So the Legislature has provided.

The purpose of this provision of the statute seems to me entirely clear. After an appellate court with power to review the facts has passed upon a judgment of conviction, no further appeal should be permitted to a court which may review only questions of law, unless an impartial judge certifies that there is in the case some question of law which should be reviewed. In that way it was hoped that useless appeals would be stopped, while the Court of Appeals might still review appeals in which important or serious questions, of law were involved.

The Legislature has not seen fit to provide how or when application for such a certificate might be made. Indeed, it does not in terms require any formal application to be made. There is nothing in its language which would seem to preclude a justice of the Appellate Division which passed upon the judgment of conviction from granting a certificate of his own motion without application by appellant or notice to a respondent. There is nothing in the language of the statute which seems to preclude any judge of either court from exercising his own discretion as to when an appeal involves questions of law which should be passed upon by the Court of Appeals, though some other judge has reached the contrary view.

Doubtless the duty rests upon the judges of the State so to mould the practice governing the granting or withholding of such certificates that the legislative purpose will be effectuated. We have accordingly adopted the practice of requiring that where a defendant seeks leave to appeal, the District Attorney should, if possible, have the opportunity to present his views in opposition. So far as I know, no judge of this court or justice of the Appellate Division has ever granted a certificate after a previous application has been denied by another judge or justice except under unusual circumstances — perhaps only where it has been made to appear that a previous denial was not intended to be on the merits.

Now, this court is about to announce a rule which will make our previous practice rigid and unalterable. Jurisdiction to grant a certificate is lacking, it is said, where a previous application has been denied. Though all the judges of. the Court of Appeals and some of the justices of the Appellate Division may believe that a conviction is contrary to law and should be reversed, yet no appeal may be taken if the application for a certificate is first made to a judge who holds a contrary opinion.

I have pointed out that the statute does not in express language provide that where one judge has refused to grant an application, no other judge has jurisdiction to consider a second^ application. Where, then, is this limitation implied? Doubtless where one judge has denied an application, such denial should be given its due weight upon a second application. That we have all done, but as was said by the Supreme Court of the United States in regard to applications for writs of habeas corpus, each application is to be disposed of in the exercise of a sound judicial discretion guided and controlled by a consideration of whatever has a rational bearing on the propriety of the discharge sought. Among the matters which may be considered, and even given controlling weight, are * * * a prior refusal to discharge on a like application.” (Salinger v. Loisel, 265 U. S. 224.) I fail to see why the same rule should not be applied to applications for leave to appeal. In the Federal courts it is the practice to apply successively to several judges for a writ of error (Williams on Federal Practice [2d ed.], p. 765), though the language of the Federal statute is analogous to the language of section 520 of the Code of Criminal Procedure.

It is said that the decision of this court in Carlisle v. Barnes (supra) is authority for the rule it is now announcing. There the court was called upon to construe section 191 of the Code of Civil Procedure. It was held that by analogy to section 776 of the Code" of Civil Procedure and section 529 of the Code of Criminal Procedure, application for leave to appeal might not be renewed before the judges of this court in succession after denial by one judge.

It would be easy to point out various grounds for distinction in the difference in the language of the statute then under construction and section 520 of the Code of Criminal Procedure. Perhaps such distinctions might not be regarded as significant, except for the fact that here we are considering applications for leave to appeal from a judgment in a criminal prosecution; there the court was considering application for leave to appeal in a civil action. Applications to successive judges in civil proceedings and actions were forbidden in general terms under section 776 of the Code of Civil Procedure. Applications ex parte to successive judges are not generally forbidden by the Code of Criminal Procedure. Where the Legislature has thought it desirable to limit or prohibit such successive applications in regard to particular forms of relief, it has expressly so provided. (Code of Criminal Procedure §§ 349, 529, 565.) I can find no reason for implying similar restriction in other cases.

These sections refer to applications for a stay of a trial, for a certificate of reasonable doubt pending an appeal, for admission to bail. The relief asked is temporary. Denial does not affect the right of the accused to a trial or to a review by appeal. If injustice is done by' refusal of the first application for relief, the effects of the injustice are limited. To permit the renewal" of an application after previous denial would in effect authorize one judge finally to overrule another judge.

In effect the rule, which this court is about to announce, makes the finality of the decision of the first appellate court depend upon the views of a single judge. The liberty of a defendant is made dependent upon the chance of a wise choice of the first judge to whom application is made. While ordinarily it is contrary to the orderly administration of law that one judge should overrule the decision of another judge of co-ordinate powers, it seems to me contrary to all rules of fairness and even-handed justice that where an appeal is permitted upon the certificate of a judge of the Court of Appeals or a judge of the Supreme Court, an erroneous denial of a certificate by a single judge should end the jurisdiction of all the other judges to grant such a certificate. The purpose of the statutory limitation upon the right of a second appeal is to end the habit of taking trivial appeals. The retention of a right to such appeal, so limited, is in the interest not only of the defendant but of the State. I refuse to ascribe to the Legislature any intent to make that right dependent upon other matters than the justice of the cause. A judge may properly give great weight to the denial of a certificate by another judge after careful consideration, but I can find nothing in the letter or spirit of the statute which should lead us to hold that this court is without jurisdiction to pass upon questions of law which any judge or justice has certified should be reviewed by this court, though another judge may have found less substance in the questions of law involved.

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

Judgment affirmed.


author: Crane, J.

text:
    Emile Meyer, Appellant, v. Samuel E. Price, Respondent.

      (Argued February 14, 1929;
    decided March 19, 1929.)

      Hugart F. Norman for appellant.
    The agreement sued upon was a valid and subsisting obligation; it was, therefore, error for the trial court to dismiss the complaint at the close of plaintiff’s case. (Zavelo v. Reeves, 227 U. S. 625; Yonkers Fur Dressing Co. v. Royal Ins. Co., 247 N. Y. 435; Weil v. Neary, 22 Fed. Rep. [2d] 893; Hynes v. N. Y. C. R. R. Co., 231 N. Y. 229; Wood v. Duff-Gordon, 222 N. Y. 88; Ciocca-Lombardi Wine Co., Inc., v. Fucini, 204 App. Div. 392; 236 N. Y. 584; Lorillard v. Clyde, 86 N. Y. 384; Weber v. American Union Bank, 221 App. Div. 94; Kavanaugh v. McIntyre, 210 N. Y. 175; 242 U. S. 138; Fasulo v. United States, 272 U. S. 620.) The court erred in its exclusion of evidence. (3 Freeman on Judgments [1925 ed.], p. 3027, § 1475; 2 Collier on Bankruptcy [13th ed.], 1186; Matter of Menzin, 238 Fed. Rep. 773; Friend v. Talcott, 228 U. S. 27; Bay State Milling Co. v. Susman Feuer Co., 100 Atl. Rep. 19; Whitney v. Dresser, 200 U. S. 532.)

      James C. Paradise and Ralph O. L. Fay for respondent.
    By the express provisions of the contract sued upon, plaintiff promised to forbear to act in bankruptcy. (Collier on Bankruptcy [13th ed.], 496; Matter of Barragan, 191 Fed. Rep. 247; Matter of Wolff, 11 Fed. Rep. [2d] 293; Matter of Wood, 283 Fed. Rep. 565; Matter of Feuer, 4 Fed. Rep. [2d] 892; Royal Indemnity Co. v. Cooper, 12 Am. Bank. Rep. [N. S.] 178; Matter of Weitzman, 11 Fed. Rep. [2d] 897; Matter of Reed, 191 Fed. Rep. 920; Matter of Miller, 27 Am. Bank. Rep. 606; Friend v. Talcott, 179 Fed. Rep. 676; 228 U. S. 27.) A contract, the consideration of which is a creditor’s forbearance to act in bankruptcy, is against public policy, and void. (Bell v. Leggett, 7 N. Y. 176; Wiggin & Wiggin v. Bush, 12 Johns. 306; Sharp v. Teese, 9 N. J. L. 352; Dexter v. Snow, 66 Mass. 594; Austin v. Markham, 44 Ga. 161; Paton v. Stewart, 78 Ill. 481; Blasdel v. Fowle, 120 Mass. 447; Rice v. Maxwell, 21 Miss. 289; Doucet v. Massachusetts B. & I. Co., 180 App. Div. 599.) A promise to pay money in consideration of forbearance to act in bankruptcy is illegal and void, in view of section 29-b(5) of the Bankruptcy Act. (Hallet v. Novion, 14 Johns. 273; Griffith v. Wells, 3 Den. 226; Swords v. Owen, 43 How. Pr. 176; Parks v. Dold Packing Co., 6 Misc. Rep. 570; Cowing v. Altman, 1 T. & C. 494; Swing v. Dayton, 124 App. Div. 58; 196 N. Y. 503.) The trial court did not err in excluding the report of the special master and the order of the District Court from evidence. (Collier on Bankruptcy [13th ed.], 607.)
   Crane, J.

Price, Guard & Co. were a copartnership doing a stock brokerage business. Emile Meyer was a customer of the firm. Price, Guard & Co. went into voluntary bankruptcy on February 5, 1925, and on February 24 the plaintiff filed a proof of his Claim against the bankrupt estate in the sum of $54,000. This amount in the claim was stated to represent the difference between the market value of 1,480 shares of Radio Corporation of America Common A stock at the time of the filing of the voluntary petition in bankruptcy by the bankrupts and the amount claimed to be owing to claimant on account of said 1,480 shares of stock.” From the statement of counsel on the trial I should infer that the brokerage house had contracted to purchase 1,480 shares for the plaintiff and had failed to do so.

On June 18, 1925, the defendant Samuel E. Price made an agreement with Emile Meyer, who was the largest creditor, to revive his claim to the extent of 113,000, which he agreed to pay in installments. Should default be made in paying any installment when due, the whole principal sum of $54,000 was to become due and payable. This agreement was made during the bankruptcy proceedings before the bankrupts’ discharge. Default having been made in the payment of an installment due under this arrangement, the plaintiff has sued Samuel E. Price for the full amount of his claim, less the installments paid. The amount demanded is $48,467.12 with interest. The defendant has pleaded that this agreement was illegal and void as against public policy and by reason of having been induced by threats and illegal promises; that the plaintiff through his representative stated that he would oppose the defendant’s discharge in bankruptcy by asserting that the defendant had been guilty of certain crimes in the conduct of his business unless defendant would guarantee that he, the plaintiff, would receive a substantial amount of his claim over and above the dividends payable in the bankruptcy proceeding.

The trial of the issues thus framed was very speedily disposed of. Plaintiff offered in evidence the agreement, his proof of claim, and rested. Thereupon, the complaint was dismissed as in violation of section 29-b (5) of the National Bankruptcy Act of 1898, as amended. This was the same as dismissing the complaint on the pleadings, the bankruptcy proceedings and the proof of claim being conceded. The agreement was set forth in full and made part of the complaint.

Before considering the agreement in detail, let us recall to mind the law applicable to the situation. We may assume that the plaintiff’s claim was one which could have been discharged in bankruptcy under section 14 and section 17 of the act. It is conceded that it was a debt, demand or claim provable in bankruptcy (Section 63), and as such, would have been discharged by a discharge in bankruptcy unless coming within the exception of section 17 (2), a claim arising out of a willful and malicious injury to the plaintiff’s property. The conversion of property has been held since the amendment of this section to be included within this exception. (McIntyre v. Kavanaugh, 242 U. S. 138.)

There is no proof in this case of the conversion by the bankrupts of the plaintiff’s property, and, therefore, I have said that we may, in fact we must, assume that the plaintiff’s claim was a debt which could and would be discharged in bankruptcy unless the discharge was opposed and resisted for one of the reasons stated in section 14 of the Bankruptcy Act.

Even if we should assume, however, that the plaintiff’s claim was not dischargeable because it was the result of the conversion of his property, yet he was in a position as a party in interest to oppose the discharge of the bankrupts and to press the objections enumerated in section 14. (Matter of Feuer, 4 Fed. Rep. [2d] 892.)

The plaintiff not only proved his claim in bankruptcy but by his agreement with the defendant reserved to himself the right to take the dividends which might be coming to him in the bankruptcy proceedings; these were excluded from the agreement. Whatever doubt may have heretofore existed as to the waiver by a claimant under such conditions of his right to sue later for the balance of his claim on a non-dischargeable debt has been set at rest by Friend v. Talcott (228 U. S. 27); Matter of Frank & Sons (238 Fed. Rep. 773; also referred to as Matter of Menzin).

With this right to oppose the bankrupts’ discharge, whether or not the claim be a dischargeable debt, any agreement to forbear to act in the bankruptcy proceeding or to withdraw or refrain from making any opposition to the bankrupts’ discharge, or to refrain from making any move whatever in the proceedings which might impede or affect his discharge is not only against public policy, and, therefore, illegal and void, but may amount to an offense under section 29-b (5) of the Bankruptcy Act, which reads: “A person shall be punished, by imprisonment for a period not to exceed two years, upon conviction of the offense of having knowingly and fraudulently * * * (5) extorted or attempted to extort any money or property from any person as a consideration for acting or forbearing to act in bankruptcy proceedings.” To make such an agreement unenforceable it is not necessary that the acts should constitute a criminal offense under this statute. The provision as quoted is the one applicable to this case, the agreement having been made in June of 1925. On May 27th of 1926, section 29-b (5) of the Bankruptcy Act was amended so as to read: Received or attempted to obtain any money or property, remuneration, compensation, reward, advantage, or promise thereof from any person, for acting or forbearing to act in bankruptcy proceedings.”

As I have said, however, irrespective of these provisions making certain agreements a criminal offense, they were also unenforceable at common law. Any arrangement in consideration of a creditor’s withdrawal of his opposition to a bankrupt’s discharge was illegal as against public policy and the salutary purposes of the insolvent or bankruptcy laws. (Bell v. Leggett, 7 N. Y. 176; Wiggin & Wiggin v. Bush, 12 Johns. 306.) In Blasdel v. Fowle (120 Mass. 447) the creditor gave his vote in favor of Fowle’s discharge in bankruptcy upon an agreement that his debt less the dividend should be paid in full as if there had been no discharge. The court held that the agreement' and the instrument given to secure it were illegal and void at common law, as well as contrary to the purposes of the Bankruptcy Act. The same was held in 1899 in Matter of Dietz (97 Fed. Rep. 563) Judge Brown saying: There is no doubt that if the opposition of the creditor is bought off through the procurement or privity of the bankrupt, it is such fraud upon the act as would warrant vacating the discharge, the fact itself being prima facie evidence that the bankrupt was not entitled to it,” citing the case of Bell v. Leggett (supra).

All agreements, however, by a bankrupt to pay a creditor in full are not illegal. The illegality exists in the creditor undertaking to refrain from making some move in the bankruptcy proceedings or to withdraw from some action already taken which may impede or prevent the discharge of the bankrupt. The law desires and encourages a full and free exposure and revelation of all the bankrupt’s acts, conduct and property. Any agreement whereby a creditor undertakes to keep silent or inactive when his word or deed might assist the purposes of the bankruptcy proceedings is illegal. When, however, this element is lacking and the bankrupt merely revives his debt by a promise after bankruptcy to pay his creditor, the new agreement, whether based upon the moral or a further, consideration is enforceable. This was decided in Zavelo v. Reeves (227 U. S. 625, 629), the court saying: “ It is settled, however, that a discharge, while releasing the bankrupt from legal liability to pay a debt, that was provable in the bankruptcy, leaves him under a moral obligation that is sufficient to support a new promise to pay the debt. And in reason, as well as by the greater weight of authority, the date of the new promise is immaterial. * * * And so, under other bankrupt acts, it has been commonly held that a promise to pay a provable debt, notwithstanding the discharge, is as effectual when made after the filing of the petition and before the discharge as if made after the discharge.”

Into which of these classes must we place the agreement in question? Does it fall within the illegal class, as above described, or is it an innocent agreement by a debtor to pay a portion of bis debt after he has gone into bankruptcy? We must now look a little further into the agreement.

It is in the form of a letter written by Samuel E. Price, signed and sealed and accepted under seal by Emile Meyer, the creditor. The recitals refer to the bankruptcy proceedings of Price, Guard & Co., of which Samuel Price was a member, and the indebtedness owing by me to you amounting to $56,467.12.” Price then promises and agrees to settle the indebtedness for the sum of $13,000 payable in installments at the times therein stated, and provides that should any default be made, the whole sum of $56,467.12 shall at the option of Meyer become due and payable. The following paragraph has cast doubt upon the validity of this agreement and given rise to this litigation. “ It is further understood and agreed that in any application for discharge in bankruptcy which I may make, and have granted, that notwithstanding the same you are not in any way or manner releasing or surrendering any of your rights or remedies against the firm of Price, Guard & Co. or myself, it being distinctly understood that in applying for said discharge and obtaining the same that you are in no way or manner waiving or relinquishing any rights or remedies against the said firm or against me by reason of the making and delivery of this agreement, it being distinctly understood that so long as I am not in default in carrying out and observing the agreement hereinbefore set forth, you are not to institute or take any proceeding with reference to your claim of Fifty-six Thousand Four Hundred Sixty-seven and 12/100 ($56,467.12) Dollars.” The dividends and securities obtained in reclamation proceedings are excluded from the agreement.

This action is on the agreement for the full amount of the indebtedness because of the default in the payment of an installment. Is the agreement illegal on its face? This depends upon whether Meyer agreed not to make any move in the bankruptcy proceedings, that is, agreed to take no steps to oppose Price’s discharge in bankruptcy. If this is what the agreement means it is illegal and void.

What the exact nature of Meyer’s claim was does not appear in the record. This I have stated above. It may have been an ordinary debt arising out of contract, or a tort claim as for conversion not dischargeable in bankruptcy. If it were dischargeable, then as I have also said, a promise by the bankrupt to pay his claim or a portion of it would not be illegal if the creditor merely extended the time in which to pay it. The moral obligation to pay his debts would sustain the promise. If, however, the claim was not dischargeable, the creditor could pursue his remedy after the discharge in bankruptcy and even after the receipt of dividends in the bankruptcy proceedings. To what did these parties refer when they stated, “ you are not to institute or take any proceedings with reference to your claim? ” This could not have referred to a dischargeable claim, as after a discharge in bankruptcy the creditor could take no proceedings to collect his claim. If, however, the claim was not dischargeable, then proceedings could be taken. Without knowing all the surrounding circumstances and the nature of Meyer’s claim, it is almost impossible to say with any certainty to what these words refer. If there be two reasonable interpretations to an instrument, one making it illegal and the other legal, it is the duty of the courts to adopt the latter. (Lorillard v. Clyde, 86 N. Y. 384.)

From the surrounding circumstances, from the history of the transaction and from the nature of the claim, it may be that Meyer agreed with Price not to oppose his discharge and that this agreement should have that interpretation. If so, it was illegal and void. The defendant in his answer has pleaded facts and circumstances which would indicate that such was the case. He was not afforded an opportunity to prove his defense; the court found it unnecessary. On the other hand, if there was a non-dischargeable claim and Meyer simply agreed not to take further proceedings in the courts to collect the claim after discharge in bankruptcy, and the agreement in no way related to the bankruptcy proceedings or to his, Meyer’s, actions, or proceedings in the Bankruptcy Court, then it was legal and enforceable to the extent at least of the amount due on the claim. Whatever dividends he may have received, if any, must be deducted, should it develop on another trial that this is a legal contract.

Our determination is that in view of all the circumstances the court cannot declare this contract illegal on its face, and that all the evidence should be taken bearing upon the question of the intent and purpose in maldng it, and whether or not it is tainted with illegality because Meyer either personally or through his representative agreed to make no move or take any steps detrimental to Price in the bankruptcy proceedings.

One other question remains which may or may not be vital to the case. The proof of claim was offered in evidence. The report of the special master and the order of the court made thereon was excluded. In so far as the report and the order adjudicated the property to be returned to the plaintiff in the reclamation proceedings, it was res adjudicata and receivable in evidence. The plaintiff, however, offered the report for the purpose of showing that the debt was not dischargeable in bankruptcy because of conversion. , The report of the master was made in reclamation proceedings, under section 70 of the Bankruptcy Act. This is a proceeding taken by creditors to recover specific property to which they claim title. “ The petition in such proceedings should contain allegations sufficient to sustain a complaint in trover and conversion, or such as are required by the strictest practice in an affidavit for replevin.” (2 Collier on Bankruptcy [13th ed.], p. 1733.) Annexed to the record is the master’s report as an exhibit for identification. It states the property or securities which the bankrupt has in his possession and which belonged to Meyer and the other claimants. It then contains a statement of the claimant’s trading account showing the securities marked “ long ” as of the date of bankruptcy. Deducting the value of the securities in possession, the master strikes a balance and says: “ Difference, being -value of securities converted.” The facts constituting the conversion do not appear. Whether this is a mere conclusion of the master or a loose use of words is uncertain. His duty was to determine the title to specific property. I was appointed,” says he in his report, “ Special Master to hear, determine and report to this court the rights, title and interest, if any, in and to * * * the stocks * '* * in the possession of the Trustee herein.” I do not understand that he was to determine in this proceeding what claims were dischargeable or not dischargeable, pursuant to section 17 of the Bankruptcy Act.

The conversion which makes a claim non-dischargeable under that section must be an actual conversion, a willful injury to property. (See McIntyre v. Kavanaugh, 242 U. S. 138; Wood v. Fisk, 215 N. Y. 233.) Whether it would include constructive conversions where there was no actual fraud or wrong-doing or no moral turpitude in the breach of the contractual relations may be doubtful. (See 1 Collier on Bankruptcy [13th ed.], p. 607; vol. 2, p. 1186; 3 Freeman on Judgments [1925 ed.], p. 3027, sec. 1475.)

That this master’s report should not be considered res adjudicata on the question of conversion is quite evident from the facts as stated by counsel when offering it in evidence. He said: “ The point is that this is not a dischargeable debt, and to show that at the time this settlement was made there were 1480 shares that we were entitled to, which this defendant had not purchased and did not have in his possession.” On this statement the defendant brokerage house evidently had bucketed ” the plaintiff’s order, that is, it entered upon the books a purchase which it never made. It contracted to buy and failed to perform the contract. Such acts may constitute a crime under our Penal Law, section 954, or section 390, but I never understood that they amounted to a conversion. A conversion assumes possession and a misappropriation to one’s use. Conversion is any distinct act of dominion wrongfully exerted over another’s personal property in denial of or inconsistent with his rights therein. (McPheters v. Page, 83 Me. 234; Woodman v. Hubbard, 25 N. H. 67.) But if the broker has never executed the contract he has not converted the stock which he did not buy although he may have converted the margin put up to buy the stock.

In our judgment, therefore, the master’s report was not res adjudicata upon the question of conversion, or to be received as evidence on this point. It was properly excluded. It is necessary for us to decide this question, as the point has been raised, and upon a new trial the plaintiff, to establish the non-dischargeability of his claim, will offer and probably seek to rest upon this master’s report. All the facts regarding this claim may be given in evidence. If there has been a conversion of the plaintiff’s stock, the claim was non-dischargeable and the plaintiff could proceed in the State courts or in any other courts having jurisdiction to recover against the bankrupts for the conversion, even after their discharge in bankruptcy. It is his claim that the proceedings referred to in the agreement are such an action or law suit for a conversion. The nature of the claim, therefore, becomes material. It must be established, however, and this is our holding by a proof of the facts and not merely by the meager report of the special master in the reclamation proceedings.

For the reasons here stated the judgment of the Appellate Division and that of the Trial Term should be reversed, and a new trial granted, with costs to abide the event.

Cardozo, Ch. J., Pound, Lehman, Kellogg, O’Brien and Hubbs, JJ., concur.

Judgments reversed, etc.


author: Hubbs, J. Crane, J.

text:
    Berenice L. Baumann, Respondent, v. Charles L. Baumann et al., Appellants.

      (Argued February 13, 1929;
    decided March 19, 1929.)

      Edgar J. Nathan for appellants.
    The injunctive relief is improper. (Piper v. Spence, [1925] 1 Dom. L. Rep. 334; International Register Co. v. Recording Fare Co., 151 Fed. Rep. 199; City of Chicago v. P. G. L. & C. Co., 170 Ill. App. 98; Mullen v. Jennings, 9 N. J. Eq. 192; Dunn v. Bryan, Ir. R. 7 Eq. 143; Matter of Sawyer, 124 U. S. 200; Roberson v. Rochester Folding Box Co., 171 N. Y. 538; Matter of Debs, 158 U. S. 564; Marlin Fire Arms Co. v. Shields, 171 N. Y. 384; Brandreth v. Lance, 8 Paige, 24; De Wick v. Dobson, 18 App. Div. 399; N. Y. Juvenile Guardian Soc. v. Roosevelt, 7 Daly, 188; Francis v. Flinn, 118 U. S. 385.) It was error to take jurisdiction of this action for a declaratory judgment. (Matter of State Industrial Comm., 224 N. Y. 13; Muskrat v. United States, 219 U. S. 346; Anway v. Grand Rapids, 211 Mich. 592; Bareham v. City of Rochester, 246 N. Y. 140; American Historical Soc. v. Glenn, 248 N. Y. 445.)

      Herbert R. Limburg and Joseph L. Weiner for respondent.
    The injunction to prevent the continuance of defendants’ fraudulent and illegal conduct was not only proper but essential for the protection of plaintiff’s rights. It was within the power of the court to grant such relief. Its action in so doing is sustained both on principle and by authority. (Chapman v. Phenix National Bank, 85 N. Y. 437; Carroll v. State, 53 Neb. 431; Brown Chemical Co. v. Meyer, 139 U. S. 540; Edison v. Edison Polyform Co., 73 N. J. Eq. 136; State ex rel. La Follette v. Hinkle, 131 Wash. 86; Schwartz v. Edrington, 133 La. 235; U. S. v. McKay, 2 Fed. Rep. [2d] 257; Oppenheim v. Kridel, 236 N. Y. 156; Bennett v. Bennett, 116 N. Y. 584; Colwell v. Tinker, 169 N. Y. 531; 193 U. S. 473; Wilner v. Bless, 243 N. Y. 544; Higgins Co. v. Higgins Soap Co., 144 N. Y. 462; World’s Disp. Med. Assn. v. Pierce, 203 N. Y. 419; Greenberg v. Greenberg, 218 App. Div. 104; Hall v. Smith, 80 Misc. Rep. 85;Randazzo v. Roppolo, 105 N. Y. Supp. 481.) The court properly declared and adjudged that the Mexican divorce was void; that the Connecticut marriage was void; that the defendants are not husband and wife; and that plaintiff and defendant Baumann are husband and wife. (Board of Education v. Van Zandt, 234 N. Y. 644; Westchester Mortgage Co. v. G. R. & I. R. R. Co., 246 N. Y. 194; Rooke v. Lord Kensington, 2 K. & J. 753; Lady Langdale v. Briggs, 8 De G., M. & G. 391; Guaranty Trust Co. v. Hannay, 2 K. B. 536.)
   Hubbs, J.

The plaintiff has secured a declaratory judgment which adjudges that she is the lawful wife of the defendant Charles Ludwig Baumann; that the defendants are not and never have been husband and wife; that an alleged divorce procured by the defendant Charles Ludwig Baumann from the plaintiff in Yucatan, Mexico, is null and void and that an alleged marriage between the defendants on June 28th, 1926, is null and void. The findings and evidence justify the judgment to that extent.

On a prior appeal in this case the Appellate Division decided that this was a proper case for a declaratory judgment to judicially establish the matrimonial status of the plaintiff. (222 App. Div. 460.) We think the conclusion reached by the Appellate Division was justified by the facts in this case. The judgment entered, however, goes far beyond establishing the plaintiff’s matrimonial status. It enjoins the defendants from representing or holding out that they are husband and wife, and from representing or holding out that the defendant Charles Ludwig Baumann was divorced from the plaintiff. It also restrains the defendant Ray Starr Einstein from assuming or using the name Baumann.” It also restrains the defendants from going through any marriage ceremony or attempting or purporting to have performed any further marriage ceremony between them ” during the life of the plaintiff. In granting such injunctive relief, on the facts in this case, we think the court exceeded its jurisdiction.

The plaintiff and Charles Ludwig Baumann were married in this State in 1909. They then were and ever since have been domiciled in this State. Two children were born of the marriage who have always resided with the plaintiff. In 1921 the plaintiff and the defendant Charles Ludwig Baumann entered into an agreement of separation under which the plaintiff released her dower rights, and the said defendant agreed to pay and has paid to the plaintiff $21,000 per annum. In 1924 the defendant Charles Ludwig Baumann went to the State of Yucatan, Mexico, and procured a document from the Director General of the Civic Register of the State of Yucatan, which purported to grant him a divorce from the plaintiff, which divorce the declaratory judgment has adjudged to be void. On June 28th, 1926, the defendants went through a marriage ceremony in the State of Connecticut, before a justice of the peace. The judgment herein declares said marriage to be null and void. Immediately after said ceremony the defendants returned to New York city, where they have since lived as husband and wife, held themselves out as husband and wife, represented to the public that the defendant Ray Starr Einstein was Mrs. Charles Ludwig Baumann, the wife of Charles Ludwig Baumann, and also represented to the public that Charles Ludwig Baumann was no longer the husband of the plaintiff, and that he had secured a divorce from her in Yucatan.

The declaratory judgment herein has established the matrimonial status of the plaintiff. Injunctive relief is not necessary to establish that status. It is elementary that a court of equity will not award the extraordinary relief of injunction except in cases where some legal wrong has been done or is threatened, and where there exists in the moving party some substantial legal right to be protected. Whether there exists or is threatened a legal wrong to be restrained and a legal right to be protected is, in the absence of disputed questions of fact, a question of law.

Does the fact that the defendants are living as man and wife and holding themselves out as husband and wife, under the name of “ Baumann ” constitute a legal wrong which infringes a substantial legal right of the plaintiff, under the facts in this case? If so, the court had jurisdiction in its discretion to grant the injunction.

The acts of the defendants cannot affect the matrimonial status of the plaintiff. That is established by the provisions of the declaratory judgment which also adjudges the Yucatan divorce and the attempted marriage of the defendants null and void. If the plaintiff has any property rights, that decree also protects those rights by legally establishing her status.

It cannot be questioned that the conduct of the defendants is reprehensible. That it is illegal has been determined by the judgment herein. That it is socially and morally wrong may be conceded, and doubtless it is annoying and humiliating to the plaintiff.. Those considerations alone do not, however, justify the granting of an injunction. Equity cannot by injunction restrain conduct which merely injures a person’s feelings and causes mental anguish. (Mitchell v. Rochester Railway Co., 151 N. Y. 107; Marlin Fire Arms Co. v. Shields, 171 N. Y. 384, 389; Roberson v. Rochester Folding Box Co., 171 N. Y. 538; Atkinson v. Doherty & Co., 121 Mich. 372; Vassar College v. Loose-Wiles Biscuit Co., 197 Fed. Rep. 982.)

The law does not remedy all social evils or moral wrongs. In the case of Atkinson v. Doherty & Co. (supra) the court said: “ Although injuries to feelings are recognized as a ground for increasing damages, the law has never given a right of action for an injury to feelings merely. Slander and libel are based upon an injury to reputation, not the feelings; and although many offensive things may be said that injure feelings and shock and violate the moral sense, even though they be untruthful, they are not necessarily actionable. To make them so, they must be of such an atrocious character that the law will presume an injury to reputation, or special damage to property interests must be alleged and proved. What becomes of the innumerable cases of ill-natured and perhaps insulting and immoral things that may be said about persons? The answer is that in an enlightened effort to preserve the liberties of men, upon the one hand, and to prevent invasion of their liberties, upon the other, it has been found that a line of demarkation must be drawn, which affords a practical balance and satisfactory test of liability.”

The most serious contention of the plaintiff is in relation to that p'art of the judgment which restrains the defendant Ray Starr Einstein from using the name Baumann.” Upon marriage a woman takes her husband’s name. (Chapman v. Phœnix National Bank, 85 N. Y. 437, 449.)

The plaintiff has a legal right to use the name “ Baumann,” but not necessarily an exclusive right to the use of that name. There is no pretense that said defendant is impersonating the plaintiff. She does not pretend to be Berenice L. Baumann, the plaintiff. There is no claim that the plaintiff will be injured because of a mistake in identity. It is urged, however, that the representation to the public that said defendant is the wife of Charles Ludwig Baumann, plaintiff’s husband, constitutes a breach of plaintiff’s marriage contract, deprives plaintiff of the exclusive right to be the only person having the legal right to be known as Mrs. Charles Ludwig Baumann and, therefore, constitutes a legal wrong which infringes upon plaintiff’s legal right to her irreparable injury.

In the last analysis the only injury alleged is an injury to plaintiff’s feelings. For such an injury an injunction will not be granted. In Vassar College v. Loose-Wiles Biscuit Co. (supra) the court quotes from Marlin Fire Arms Co. v. Shields (supra) as follows: “ Equity does not undertake to relieve from all the annoyances caused by those who are inconsiderate of the feelings and business interests of others. On the contrary, it is a general rule, which has some exceptions, that it will not undertake to interfere where a party has an adequate remedy at law and when it does interfere it is guided by principles of equity, which during the long course of its administration have become established.”

The court then says: Any departure from these sound principles is likely to lead to evils far greater than those sought to be remedied.” In Mirizio v. Mirizio (242 N. Y. 74, 84) Chief Judge His cock said: “ The danger always is that a court may be led by what seem in some particular case to be equitable considerations into adopting some principle which when carried to subsequent and logical application to other facts leads to results which are unfortunate and unjust.”

The plaintiff is living apart from her husband under a separation agreement which secures to her $21,000 a year. She is conducting an independent business under the name of Berenice L. Baumann. She has secured a judgment which defines her matrimonial status, and protects her property rights, if any. The complaint does not allege that any of plaintiff’s property rights are affected or endangered by the conduct of the defendants. Neither does it allege that the defendant Ray Starr Einstein has alienated the affections of plaintiff’s husband or that plaintiff has been excluded by any act or conduct of said defendant from the marital society of her husband. Under such circumstances the acts enjoined do not constitute legal wrongs, which invade substantial legal rights of the plaintiff that can be recognized in law and protected by injunction. It is not the province of courts of equity to administer paternal relief in domestic affairs. As a matter of practical fact, such decrees cannot be enforced. That fact has been long recognized. (Hodecker v. Stickler, 39 N. Y. Supp. 515; 20 App. Div. 245; 1 Pomeroy’s Equity Jurisprudence [4th ed.], sec. 99; Cowley v. Cowley, App. Cases [1901], 450.)

In jurisdictions where it has been attempted, it has lead to the granting of decrees that do not favorably impress this court but which illustrate the length to which the principle may be carried. In Witte v. Bauderer (255 S. W. [Texas] 1016) the court enjoined the defendant from having anything to do with plaintiff’s wife except that defendant be permitted to associate and consult with plaintiff’s wife in such manner that she can discharge her duties as bookkeeper for defendant.”

Attempts to govern the morals of people by injunctions can only result in making ridiculous the courts which grant such decrees.

We do not find it necessary to discuss the question of the jurisdiction of equity to grant injunctive relief in cases where there are no property rights involved. It is sufficient for the decision in this case that there exists no legal wrong which gives rise to a correlative legal right.

The judgment of the Appellate Division and that of the Special Term should be modified by striking therefrom the restraining clauses thereof and as modified affirmed, without costs.

Crane, J.

(dissenting in part). We must not recoil from an equity judgment because the law which it enforces is also good morals. The courts in this case have not restrained Charles Ludwig Baumann from living with a woman other than his wife; neither have they restrained the woman from maintaining such relationships with him. Under the law, this is a matter for their own consciences, except as it is made a criminal offense by the Penal Law, sections 100-103. Equity will not enjoin the commission of a crime.

I do not agree with the suggestion made in the opinions that the woman with whom Baumann is living has not attempted to impersonate the plaintiff. I think she has.

We are all agreed that Baumann has but one wife, and that is the plaintiff. Her married name is Mrs. Charles Ludwig Baumann — there is no other such person living. She is known throughout New York in the circle in which she lives by this name. It is more, than a name — it is a position, a status, a condition, a relationship, a capacity. A name may mean very little, but the status and relationship which it indicates may mean a great deal, not only to the parties, but to the world. It means so much that a very large number of our citizens are opposed to the severance of,the marriage tie for any reason.

What has the defendant Ray Starr Einstein done? She has usurped the status, the relationship before the public, which belongs to the plaintiff. She is impersonating the plaintiff to this extent. She represents and holds herself out to the public as Mrs. Charles Ludwig Baumann, the wife of the gentleman of that name. She is not Mrs. Charles Ludwig Baumann; she is not'his wife, and in so far as she uses this name and poses as his wife, she impersonates the plaintiff; she assumes the position and the relationship which the law has given to the plaintiff.

It is said that the courts may declare the plaintiff to be- the wife of Charles Ludwig Baumann, but have no power to prevent another person masquerading in the same locality in this position and relationship. I, for one, cannot understand the reason for such a limitation. Why should a court of equity be impotent in the face of what all parties to this litigation concede to be wrong? I heartily agree that courts of equity should not seek to make people better by injunction, but I do consider it as much their business to protect a wife and mother in her status before the public, as in her property. Courts of equity from time out of mind have made persons return property fraudulently obtained; why should not a court of equity make this lady defendant give up a pretended relationship and a name which she is falsely and fraudulently using?

The defendant’s name is Ray Starr Einstein. Why does she want to use the name Mrs. Charles Ludwig Baumann, wife of Charles Ludwig Baumann, when it carries with it a reflection upon the moral character of the plaintiff, the mother of children? Is a court of equity going too far under such circumstances when it says to Ray Starr Einstein: Your own name is good enough, and you had better stick to it? ” This is what courts are for.

I am for the affirmance of the judgment below in so far as it restrains Charles Ludwig Baumann and Ray Starr Einstein from representing or continuing to represent that Charles Ludwig Baumann was divorced from the plaintiff, and that Ray Starr Einstein is Mrs. Charles Ludwig Baumann, his wife.

As to the declaratory part of the judgment, I agree with the other members of the court.

O’Brien, J.

(dissenting in part). After twelve years of marriage, the defendant Charles Ludwig Baumann

and the plaintiff Berenice, his wife, both domiciled in New York, executed a separation agreement. He made provision for the support of his wife and children and she released her dower rights. Three years later he departed for Mexico, spent a month in that country and returned with a document issued by an administrative official of the State of Yucatan and purporting to grant him a divorce. No action had been instituted by him in any court nor had any process been served upon or notice given to plaintiff. Not until the fact had been accomplished did she have any knowledge of her husband’s journey or its purpose. Two years elapsed and then the husband, accompanied by the defendant Ray Starr Einstein, also domiciled in New York, drove to Connecticut and went through the form of a marriage before a justice of the peace. Mr. Baumann and Mrs. Einstein have since resided together in New York as husband and wife, he informing his acquaintances that he had obtained a divorce from his first wife and Mrs. Einstein assuming the title and claiming the position of Mrs. Charles Ludwig Baumann. The pretended Mexican divorce is a nullity (Atherton v. Atherton, 181 U. S. 155; Haddock v. Haddock, 201 U. S. 562; Olmsted v. Olmsted, 216 U. S. 386) and, consequently, so is the pretended Connecticut marriage. No one disputes either proposition. This appeal results merely from a challenge concerning the form of this remedy and the power of a court of equity to mould this decree. Among other things, the judgment enjoins both defendants from continuing to represent that Baumann has been divorced from plaintiff and it also enjoins Mrs. Einstein from assuming or using the name Baumann ” in any form or combination. The majority of this court holds that in respect to granting an injunction the Supreme Court exceeded its jurisdiction.

Something unsound appears to lie in a rule which would deny to a court of equity the power to enjoin the masquerade of another’s name and title and the infringement of the mingled personal and property rights which include that name and constitute the matrimonial status. This part of the judgment which grants an injunction can be reversed only because this court is prepared to concede a complete absence of power to protect that status in a manner substantially similar to the method adopted by the courts below. A mere declaration of rights will prove inadequate; I think that equity has jurisdiction to enforce some protective measure. An individual possesses an exclusive property right in a name. (Edison v. Edison Polyform & Mfg. Co., 73 N. J. Eq. 136, 141, 143; State ex rel. La Follette v. Hinkle, 131 Wash. 86, 93.) By the custom of centuries a married woman takes her husband’s Christian and surname. (Chapman v. Phœnix Nat. Bank, 85 N. Y. 437, 450; Carroll v. State, 53 Neb. 431, 436.) The common-law right to assume a name cannot extend beyond the boundary of good faith (Smith v. U. S. Casualty Co., 197 N. Y. 420; U. S. v. McKay, 2 Fed. Rep. [2d] 257, 259), but the issue here lies even deeper. Plaintiff’s right to the use of her name arises from her contract with Baumann which created their marriage relation and I think her right to her own name is exclusive. Her matrimonial status results from, a merger of personal and property interests. Her property rights grow out of her personal relation. Marriage is deemed a “valuable consideration and has always been subject to the special protection of the law. So we are not put to a choice on the one hand between the rule or the supposed rule that equity jurisdiction is limited to the protection of property rights (Matter of Sawyer, 124 U. S. 200, 210; Matter of Debs, 158 U. S. 564; Roberson v. Rochester Folding Box Co., 171 N. Y. 538, 553) and on the other hand the theory that the vindication of purely personal rights also lies within its scope. (Vanderbilt v. Mitchell, 72 N. J. Eq. 910; Pound, 29 Harvard L. R. 640; Long, 33 Yale Law Journal, 115; Chafee, 34 Harvard L. R. 407.) We deal with a union of such rights. The real Mrs. Baumann retains all the personal and property interests in her marriage except those of consortium and dower, which she released by the separation agreement, and her former right of support, for which she substituted a different provision by the same contract. Mrs. Einstein’s usurpation of this matrimonial title and status is not wholly dissimilar from the wrongful assumption of the title of a civil or military office. It is true that Ray Starr Einstein does not pretend to be Berenice Baumann, but she does purloin the title of Charles Ludwig Baumann’s wife, a title to which she has no more right than to the one belonging to the Governor of Connecticut or to the commanding general of the Mexican army. Plaintiff has the legal right and defendants inflict the legal wrong. The name indicates the status of the wearer and Mrs. Einstein has no right to wear it. That right belongs to plaintiff. Pecuniary injury to her by confusion of identity is not improbable. These defendants are engaged in the perpetration of a fraud (Hawke v. Corri, 2 Hag. Con. 280) and threaten to persist in it. A distinguished court has recognized the jurisdiction of equity to interfere where there has been an unwarranted use of a man’s name, the probable effect of which is to expose him to risk of future liability. It has approved the application of injunctive relief where no present property right was actually prejudiced but merely threatened and liability only anticipated. Even if no property rights were involved in the action then before it and if only the plaintiff’s status and personal rights were invaded, it stated that it would hold without hesitation that an individual has rights, other than property rights, which can be enforced in a court of equity. (Vanderbilt v. Mitchell, 72 N. J. Eq. 910.) In Edison v. Edison Poly-form & Mfg. Co. (73 N. J. Eq. 136, 143), a case in which no element of trade competition was involved, an injunction issued to restrain the unauthorized use of plaintiff’s name. This remedy was applied by the New Jersey court upon the principle that a property right inheres in a name and that a possibility of injury to the owner existed. Ideas founded on considerations of natural justice have in other instances been enforced and protective measures adopted by the courts of our own State. An early case decided by Chancellor Kent is Aymar v. Roff (3 Johns. Ch. 49). There a man who had gone through a marriage ceremony with an infant was ordered to “ refrain from holding any conversation, or from having any intercourse, or correspondence with the said Eliza, so long as this order remains in force, under the pain of incurring a contempt.” The principle announced in Hodecker v. Stickler (39 N. Y. Supp. 515; 20 App. Div. 245) has been the subject of adverse criticism (29 Harvard L. R. 673) and I think ought to be disapproved by us. The reasoning in such cases as Randazzo v. Roppolo (105 N. Y. Supp. 481); Bell v. Clarke (45 Misc. Rep. 272) and Hall v. Smith (80 Misc. Rep. 85) indicates to my mind a truer approach toward the realization of justice within the realm of equity. Among the most enlightened of modern equity cases is Greenberg v. Greenberg (218 App. Div. 104), where an injunction restrained a husband from prosecuting an action to obtain a judgment of divorce. The relief granted in that case was based upon the fact that " there are many conceivable uses to which such a judgment of divorce could be put, causing plaintiff expense, litigation, worry, annoyance and misrepresentation.” It was to protect the present plaintiff from the same factors of legal wrong that the Special Term and a unanimous Appellate Division issued the injunction which is now so vigorously and successfully assailed. To hold that the Supreme Court is without power to exercise its discretion on such facts as this record reveals seems to me to run counter to the expanding trend of equity.

Pound, Lehman and Kellogg, JJ., concur with Hubbs, J.; Crane and O’Brien, JJ., dissent in part in separate opinions; Cardozo, Ch. J., not voting.

Judgment accordingly.


text:
    William J. Schieffelin, Respondent, v. Joseph A. Warren, as Police Commissioner of the City of New York, et al., Appellants.
    (Argued February 19, 1929;
    decided March 19, 1929.)

      George P. Nicholson, Corporation Counsel (Elliot S. Benedict, William E. C. Mayer, Arthur Sweeney and J. Joseph Lilly of counsel), for Police Commissioner of the city of New York, appellant.
    The defendant, Enright, is entitled to the pension allowed a chief inspector under the provisions of section 355-a of the New York City Charter. (People ex rel. Bolster v. French, 46 Hun, 232; Matter of Mahon v. Board of Education, 171 N. Y. 263; Norris v. Sullivan, 47 Conn. 474; People ex rel. Eckerson v. Board of Education, 126 App. Div. 414; Hamitt v. Gaynor, 82 Misc. Rep. 196; 165 App. Div. 909.) If former Commissioner Enright is entitled to a pension it is at the rate of $3,750 per annum, which was half the salary of a chief inspector at the time of his retirement. (People ex rel. Clark v. Waldo, N. Y. L. J. Nov. 22, 1911, p. 83; People ex rel. O’Neil v. Waldo, N. Y. L. J. Nov. 1, 1913, p. 564; Matter of Deishley v. Enright, N. Y. L. J. April 1,1925, p. 10; Matter of Roddy v. McLaughlin, N. Y. L. J. June 22, 1926, p. 1291; Storey v. Craig, 231 N. Y. 33; City of New York v. Union Railway Co., 206 App. Div. 472; 238 N. Y. 571; Grimmer v. Tenement House Department, 205 N. Y. 594; Wintersteen v. City of N. Y., 220 N. Y. 57; City of New York v. New York City Railway, 193 N. Y. 543.)

      John Lehman, Leon G. Godley and Hyman W. Gamso for Richard E. Enright, appellant.
    The order of retirement was authorized by, and is valid under the provisions of section 355-a of the New York City Charter. (People ex rel. Met. Ry. Co. v. Tax Comrs., 174 N. Y. 417; Schieffelin v. Lahey, 243 N. Y. 102; Eckerson v. Board of Education, 126 App. Div. 414; 193 N. Y. 601; Norris v. Sullivan, 47 Conn. 474; Mahon v. Board of Education, 171 N. Y. 263; Matter of Rockaway Park Imp. Co., 83 Hun, 263; Klutts v. Jones, 20 N. Mex. 230; 148 Pac. Rep. 494; Davis v. Brace, 82 Ill. 542; City of New York v. N. Y. Ry. Co., 193 N. Y. 543; People ex rel. W. S. El. Co. v. Consol. Tel. Co., 187 N. Y. 58.)

      Leonard M. Wallstein and Ralph M. Frink for respondent.
    The pension to defendant Enright cannot be sustained in any amount whatever by section 355-a of the charter for defendant Enright had ceased to be a member of the police force before that statute was enacted and before the pension was granted, so that this section did not apply to him. (Schieffelin v. Enright, 200 App. Div. 312; Schieffelin v. Lahey, 243 N. Y. 102; Schieffelin v. McLaughlin, 127 Misc. Rep. 56; Runk v. Knight, 196 App. Div. 99; Jacobus v. Colgate, 217 N. Y. 235; Eddy v. Morgan, 216 Ill. 437; Clark v. Police Board, 127 Cal. 550; State v. Ziegenheim, 144 Mo. 273; Matter of Mahon v. Board of Education, 171 N. Y. 263; People ex rel. Waddy v. Partridge, 172 N. Y. 305; Glaser v. City of Buffalo, 115 Misc. Rep. 88.) Section 14-b of the General City Law (L. 1924, ch. 409) is local and special in terms and, therefore, void. (People ex rel. Dunn v. Ham, 166 N. Y. 477; People ex rel. Devery v. Coler, 173 N. Y. 103; People ex rel. Werner v. Prendergast, 206 N. Y. 405; Cleveland v. City of Watertown, 222 N. Y. 159; Rathbone v. Wirth, 6 App. Div. 277; 150 N. Y. 459; McGrath v. Grant, 37 Misc. Rep. 64; 69 App. Div. 314; 171 N. Y. 7; De Bow v. People, 1 Den. 9; Bank v. Sparrow, 2 Den. 97; People v. Supervisors, 8 N. Y. 317; Development Co. v. Kennedy, 158 App. Div. 398; State v. Polacheck, 101 Wis. 427; Jackson v. State, 101 Ark. 473; Wells v. Missouri Pacific Co., 110 Mo. 286; Connole v. Railway, 216 Fed. Rep. 823.)
   Crane, J.

On November 2, 1896, Richard E. Enright was appointed a patrolman in the uniformed police force of the city of New York. Thereafter he was duly appointed at different times roundsman, sergeant and lieutenant on said force, and served continuously in the various positions mentioned from November 2, 1896, to January 23, 1918, a period of more than twenty years. During this period he made full contribution to the police pension fund. On January 24, 1918, he was appointed by the Mayor, Police Commissioner of the city of New York, a position which he held continuously until twelve o’clock midnight on December 30, 1925. On December 30, 1925, the Mayor retired said Enright as Police Commissioner of the city of New York as of midnight December 30, 1925, and granted to him an annual pension.

For reasons stated in our decision in Schieffelin v. Lahey (243 N. Y. 102) and which need not be here repeated, Enright upon accepting the office of Police Commissioner on January 24th, ceased to be a member of the police force. He became Police Commissioner and was serving as such when on May 1, 1918, chapter 651 of the Laws of 1918 became effective. This added section 355-a to the Greater New York Charter. Enright at this time had served about three months as Police Commissioner. In January of 1918, when he was appointed, section 357 of the charter provided that neither the police commissioner nor either deputy police commissioner shall be members of the police force within the meaning of the provisions of this act relating to pensions, nor be entitled to any pension, nor share in the relief pension fund of the police department.” Chapter 651 of the Laws of 1918 remedied this situation. It provided: Service as police commissioner or deputy police commissioner by a member of the police force shall be deemed the performance of duty on such force. Any member of the police force who shall have performed duty on such force for a period of twenty years, and for at least six months as police commissioner or deputy police commissioner, may be retired by the mayor and placed upon the pension roll of the police department and granted the pension allowed to a chief inspector in such department.”

Enright has paid into the police pension fund the full amount of the deductions from his salary as Police Commissioner from the date of his appointment in 1918 to December 31, 1925, as contribution of the proper proportionate amount of his salary as Commissioner to the police pension fund, together with interest on the several annual installments of such deductions. After twenty-eight years of continuous service for the city of New York as a member of the police force, and then as Commissioner of Police, Enright deems himself entitled to the pension provided by section 355-a of the Greater New York Charter, and in our judgment his claim is justified. He comes within the provisions of that act.

As I have above stated, when this section was added to the charter, Enright was serving as Police Commissioner. This section refers to Police Commissioners; it deals with the Police Commissioner and his pension, not the pension of a member of the police force, but the pensions of the Police Commissioners. It says that service as Police Commissioner by a member of the police force shall be deemed the performance of duty on such force. These words did not change our ruling in the Lahey case or the provisions of section 291 of the charter. A member of the police force who takes the position of Police Commissioner ceases to be a member of the police force, and section 355-a has made no change in this particular. He is not a member of the police force serving as Police Commissioner, but service as Police Commissioner by one who has been a member of the police force shall be deemed the performance of duty on such force for pension purposes. In other \VPrds, the city of New York does not desire to lose the benefit of trained, experienced men as Police Commissioners by excluding them from the benefits of a pension if they become Commissioners, or Deputy Commissioners. Then the act goes on to provide a pension not for a member of the force, but for the Commissioner. The Commissioner has ceased to be a member of the force, but he is to have a pension under certain conditions.

The next sentence of section 355-a provides that a Police Commissioner who has served as such for at least six months, and who shall have performed duty on the police force for a period of twenty years may be retired by the Mayor and placed upon the pension roll of the police department and granted the pension allowed to a chief inspector in such department. This applies to Enright. He was Police Commissioner at the time of the passage of the act. He not only served six months as Police Commissioner, but over seven years after the passage of the act, and had served as a member of the police force for over twenty years. Such service brings him within the words of the act, and in my opinion within the intention and purpose of the act. The respondent claims that this provision should be interpreted as if it read: any member of the police force who shall have performed duty on such force for a period of twenty years and who while a member of the force shall hereafter be appointed police commissioner,” etc. The answer to this contention is that the act does not read that way. There are two requisites, and only two, which will entitle the Commissioner to the pension. He must have been a member of the force and performed his duty on such force for a period of twenty years, and have been Police Commissioner after the passage of the act for a period of six months. Enright met both these requirements. The respondent again claims that Enright was not a member of the police force in May of 1918, when section 355-a was added to the charter, and, therefore, the act did not apply to him. He was a Commissioner, however, and the act applied to Commissioners. Counsel would have us read this section as if it only applied to an acting policeman appointed Commissioner after the passage of the act. I see no reason for giving this section this narrow meaning. The Legislature had it in its power to provide a pension for a Police Commissioner who had served twenty years on the force. Enright was serving as Commissioner at the time the act took effect and had served twenty years on the force, as I havv above stated. What reason is there for excluding him from the benefits of the act, when from all intents and purposes he was supposed to come within it?

Section 357 of the charter was brought over from the old Consolidation Act, chapter 410, section 309, of the Laws of 1882. (See, also, Laws of 1884, chap. 180, § 20.) When embodied in the charter of 1897, the Greater New York Charter, the Police Commissioner and Deputy Police Commissioner were excluded from the pension act. Under the old system, the police force of New York city was governed by four Commissioners, one of whom was the president (Laws of 1882, chap. 410, §§ 37, 264). These men had generally been civilians, not taken from the force. In 1896 Mr. Theodore Roosevelt was president of the Commission. After the adoption of the Greater New York Charter, when only one. person was Police Commissioner, lawyers, army officers or business men were usually appointed to the office. It was quite natural that these men never having been part of the police force should be express y excluded from the benefits of the pension fund. The charter of the city of Brooklyn (Laws of 1888, chap. 583, as amended) provided (Title XI, sec. 1) for a Commissioner of Police and Excise who was not a member of the force. (Sec. 4.) Within my own recollection the Commissioner was always some person not a policeman. Section 42, subdivision 6, of that charter provided for a policeman’s retirement on half pay after twenty years’ service. For years the public, acting through its Legislature, considered that twenty years’ service on the force merited a pension. The provisions of section 355-a of the Greater New York Charter were not new as to time of service and amount of the pension.

With the .appointment of Mr. Enright a new method was adopted. A man trained through all the positions upon the police force was considered by the then Mayor to be a fit and proper person to be made Police Commissioner. Anyhow, he was made Police Commissioner and taken from the force. By his promotion he severde his connection with the police force and would have lost all his rights to the pension. Is it not reasonable to suppose that the Legislature, knowing these facts, in its then present session,' in the spring of 1918, enacted section 355-a for the benefit of the acting Commissioner as well as for all others who might thereafter be similarly situated? The Legislature realized that the Mayors could not get men from the force to serve as Commissioners or Deputies if they would lose their pensions after years of service. Pragmatic considerations suggest that the Legislature intended its act of May, 1918, to apply to the then Commissioner, if he served six months or more, as well as to any other Commissioner who might be appointed from the force. The Legislature having power to act in the matter and cover the present Commissioner as well as all others thereafter appointed, I can see no substantial reason for excluding him from the benefits of its wise provisions.

The case of Schieffelin v. Enright (200 App. Div. 312) has no bearing on this point; in fact the question now before us was expressly reserved by the Appellate Division from its decision. The Mayor in December of 1920 had attempted to retire Enright as a lieutenant from the police force, the position formerly occupied by him before he had assumed the duties of Commissioner. The Commissioner was not a member of the force; he had ceased to be a lieutenant, and there was no authority in the Mayor justifying such retirement. This was the ruling of the Appellate Division. That court modified the order appealed from by striking out that portion which read: Ordered and adjudged as follows: 1. That chapter 651 of the Laws of 1918 is not applicable to defendant, Richard E. Enright, and does not authorize the award of a pension to him in the sum of $3,750 per annum.” The Commissioner has row been retired as Commissioner in accordance with chapter 651 of the Laws of 1918 (now section 355-a of the Greater New York Charter) and it is the construction of that law which is before us.

Being of the opinion that Richard E. Enright as Police Commissioner was entitled to be retired by the Mayor and to the pension allowed, to a chief inspector, there is no question as to the amount of that pension. It is one-half the pay of a chief inspector, or $3,750 per annum. No question on this appeal is raised as to this amount, if section 355-a of the charter applies.

' We agree with the Appellate Division that chapter 509 of the Laws of 1924, amending chapter 26 of the Laws of 1909, entitled, “ An Act in relation to cities, constituting chapter twenty-one of the consolidated laws,” and inserting therein a new section known as 14-b, is unconstitutional for the reasons stated below.

The judgments of' the Appellate Division and the Special Term must be modified. As above stated, the Mayor retired the Commissioner on a pension of $5,000. This was too much. The Corporation Counsel concedes that it should have been $3,750. The judgment of the Special Term restrained the trustees and treasurer of the police pension fund from paying to Enright any pension whatever. This judgment must be modified by allowing to the ex-Commissioner a pension of $3,750, and enjoining only the payment of any sum in excess of that amount. As both sides have been partially successful in this court, no costs will be allowed.

The judgment of the Appellate Division and that of the Special Term should be modified in accordance with this opinion, and as modified affirmed, without costs in any court.

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

Judgment accordingly.


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    In the Matter of the Claim of William J. Rounds, against Davis Furniture Company et al., Appellants. The State Industrial Board, Respondent.
    (Argued February 11, 1929;
    decided March 19, 1929.)

      John S. Leonard for appellants.
    The claimant is not entitled to compensation for loss of use of his hand. (Grammici v. Zinn, 219 N. Y. 322; Kanzar v. Acorn Manufacturing Co., 219 N. Y. 326; Clayton v. Foundation Co., 193 App. Div. 822; Matter of Hassfurter v. Garrison, 210 App. Div. 802; Sonelli v. Knickerbocker Ice Co., 212 App. Div. 843; Matter of Gross v. Hudson Reade Corp., 215 App. Div. 632; Karasik v. Helfand Shoe Co., 217 App. Div. 708; Schlosser v. American Hide & Leather

      Co., 221 App. Div. 827; Young v. Norton, 225 N. Y. Supp. 926.)

      Hamilton Ward, Attorney-General (E. C. Aiken of counsel), for respondent.
    The award to the claimant for. thirty per cent loss of the use of the left hand was properly made. (Gross v. Hudson Reade Corp., 215 App. Div. 632; Young v. Norton Co., 222 App. Div. 783; Schlosser v. American Hide & Leather Co., 221 App. Div. 827; Neigel v. Consolidated Can Corp., 222 App. Div. 787.)
   Crane, J.

A very perplexing question has arisen in this case due to the uncertainty in the application of subdivision 3(q) and 3(s) of section 15 of the Workmen’s Compensation Law (Cons. Laws, ch. 67). Can an award be made for the proportionate loss of the use of a hand under subdivision 3(q) where the injury is the loss of the distal joint of the second finger and the stiffening of the joints and partial loss of the use of the index finger of the left hand?

On February 7, 1927, an award was made to the claimant for 50 per cent loss of the use of the left second finger, amounting in all to 15 weeks’ compensation, a total of $282.75 at $18.85 per week. This was in accordance with the schedules of subdivision 3, section 15, for a permanent partial disability (i) second finger 30 weeks’ compensation. By paragraph (n) of this subdivision the loss of the first phalange shall be one-half of the compensation for the loss of the entire digit. As 30 weeks were allowed under (i) for the second finger, the loss of the first phalange of the second finger called for 15 weeks, the allowance which was thus made by the Industrial Commission. This amount was paid in full by the insurance carrier

Later, on May 10, 1927, the Industrial Board made an award for the index finger of the same hand amounting to 50 per cent loss, in all 23 weeks, at $19.04 per week, a total of $437.92, less payments already made. Under (s) of subdivision 3, compensation for the permanent partial loss of the use of a member may be for the proportionate loss of the use of the member. Under (r) a total loss of the use of a member is the same as the loss of the member. The loss of the first finger under subdivision 3 (g) calls for 46 weeks’ compensation. Fifty per cent loss of the use of the first finger, therefore, entitled the claimant to 23 weeks’ compensation, which was the award made for the partial loss of this index finger.

Later a third award was made based upon a partial loss of the use of the hand under paragraph (q). Notice of the award is dated September 26, 1927, but the findings and the award are dated April 26, 1928. The findings state: He [claimant] sustained an amputation of the second finger of his left hand at the first joint and laceration of the index finger of his left hand, which injuries in turn caused the claimant to sustain a 66⅔% flexion defect in the first finger of the left hand, amputation through the distal joint of the second finger of the left hand with a loss of a portion of the articular surface from the distal end of the middle phalanx of said second finger of the left hand and- decrease in grasping power of the left hand, all of which are permanent. As a result of said accident and the injuries naturally and unavoidably resulting therefrom, said William J. Rounds sustained a permanent loss of use of 30% of his left hand.” Paragraph (q) provides compensation for the loss of one or more phalanges of two or more digits to be proportioned to the loss of the use of the hand. The Commission, therefore, awarded 30 per cent of 244 compensatory weeks (c) or 73.2 weeks at $18.85 per week, amounting to $1,379.82, the employer and insurance carrier to be credited with payments already made.

This appeal brings up the question whether the Industrial Board was justified in making this last award, or in other words, whether the first two awards for injuries to the fingers as distinguished from an injury to the hand other than the fingers were not the only awards which could have been made.

In Matter of Grammici v. Zinn (219 N. Y. 322) a claimant who lost the first, second and third fingers and the first phalange of the fourth finger of his right hand was held not to be entitled to compensation for the permanent loss of the use of his hand. This case was decided in November, 1916. The following session of the Legislature passed chapter 705 of the Laws of 1917, in which subdivision 3 of section 15 provided: Where the injury results in the loss of more than one finger, compensation therefor may be awarded for the proportionate loss of the use of the hand thereby occasioned.” The loss of use of a member was in the original act, Laws of 1914, chapter 41, subdivision 3, section 15, and read: Loss of use. Permanent loss of the use of a hand, arm, foot, leg or eye shall be considered as the equivalent of the loss of such hand, arm, foot, leg or eye.” In chapter 705 of the Laws of 1917, we find this enumeration extended to include the thumb, finger, toe or phalange. It may be that under this amendment of 1917, the loss of one finger and the permanent loss of the use of another finger or phalange might have justified compensation for the proportionate loss of the use of the hand. However this may be, chapter 615 of the Laws of 1922 enacted (q) as it now reads: Two or more digits. Compensation for loss of two or more digits, or one or more phalanges of two or more digits, of a hand or foot may be proportioned to the loss of use of the hand or foot occasioned thereby but shall not exceed the compensation for loss of a hand or foot.” Under (r) the total loss of the use of a member (not phalange as formerly) shall be considered the same as the loss of the member. Therefore, if we had the actual loss of one finger and the total loss of the use of another finger which under (r) constitutes the loss of the member, there might be compensation awarded for the proportionate loss of the hand. Such, however, is not this case.

Here we have the loss of one phalange of the second finger and the partial loss of the use of the index finger. Paragraph (q) provides for loss and not the loss of use, except where the loss of use of a member is total so as to make it the same as the loss of the member. To justify an award for the proportionate loss of the use of the hand as we read paragraph (q) there must be at least the loss of two digits or of one or more phalanges of two or more digits. It does not include the loss of one phalange of one finger and the partial loss of the use of another finger.

This being so, the State Industrial Board was correct in its first awards, one for the loss of the phalange of the second finger according to subdivision 3 (i), with (n), and the other for the partial loss of the use of the first finger according to subdivision 3 (g), (s), less payments made.

This apparently was the view of the Appellate Division in Clayton v. Foundation Co. (193 App. Div. 822), so far as applicable; Hassfurter v. Garrison (210 App. Div. 802), and Sanelli v. Knickerbocker Ice Co. (212 App. Div. 843).

The case of Gross v. Hudson Reade Corporation (215 App. Div. 632) apparently involved an injury to the hand as well as injury to the fingers, and may be sustained upon this basis. But if it and Schlosser v. American Hide & Leather Co., Inc. (221 App. Div. 827); Karasik v. Helf and Shoe Company (217 App. Div. 708), and Neigel v. Consolidated Can Corp. (222 App. Div. 787) have departed from the earlier rulings of the court in the first above cited cases, they cannot be sustained.

Compensation for permanent partial loss of use is found in chapter 705 of the Laws of 1917 and reads as follows: “ For the partial loss or the partial loss of the use of a hand, arm, foot, leg or eye, compensation therefor may be awarded for the proportionate loss or proportionate loss of the use of such hand, arm, foot, leg or eye.” Chapter 533 of the Laws of 1920 added the words “ thumb, finger, toe or phalange,” and chapter 615, Laws of 1922, section 15, subdivision 3(s), substituted the word member ” for the words hand, arm, finger," etc.

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

Cardozo, Ch. J., Pound, Lehman, Kellogg, O’Brien and Hubbs, JJ., concur.

Ordered accordingly.