author: Desmond, J. Rippey, J.

text:
    Elaine F. Glickman, as Administratrix of the Estate of Celia Katz, Deceased, Appellant, v. New York Life Insurance Company, Respondent.
    Submitted June 8, 1943;
    decided July 20, 1943.

      Harry Matter and Isadore B. Hurwitz for appellant.
    Defendant is estopped to set up the condition as a bar and is also deemed to have waived it. Armand v. Metropolitan Life Ins. Co., 135 Misc. 357, 228 App. Div. 625; Ames v. New York Life Ins. Co., 154 Minn. 111; Chinery v. Metropolitan Life Ins. Co., 112 Misc. 107.) On this record to set up as a bar the condition in the application would violate section 142 of the Insurance Law. (Sternaman v. Metropolitan Life Ins. Co., 170 N. Y. 13; Archer v. Equitable Life Assur. Society, 218 N. Y. 18; Bollard v. New York Life Ins. Co., 98 Misc. 286; Lampke v. Metropolitan Life Ins. Co. 279 N. Y. 157; Eastern D. P. Dye Works v. Travelers Ins. Co., 234 N. Y. 441; Minsker v. John Hancock Mut. Life Ins. Co., 254 N. Y. 333; Bible v. John Hancock Mut. Life Ins. Co., 256 N. Y. 458; Davern v. American Mut. Liability Ins. Co., 241 N. Y. 318.) The photostatic copies of the application attached to the policy were so reduced in size as not to be a compliance with section 142 of the Insurance Law. This renders unenforcible the condition in the application. (Fidelity Mut. Ins. Co. v. Preuser, 195 Ky. 271; New York Life Ins. Co. v. Miller, 73 F. 2d 350; New York Life Ins. Co. v. Halpern, 57 F. 2d 200, 61 F. 2d 1037; Janunas v. Metropolitan Life, 239 Mich. 150; Eastman v. Metropolitan Life, 228 Mich. 125.) Assuming the condition is applicable, section 150 of the Insurance Law nevertheless precludes a construction of the condition which would void the policy perforce a showing that the insured consulted a physician without anything more. (Silverstein v. Metropolitan Life Ins. Co., 254 N. Y. 81; Independent Life Ins. Co. v. Vann, 24 Ala. App. 93; Eastern D. P. Dye Works, Inc., v. Travelers Ins. Co., 234 N. Y. 441; Geer v. Union Mut. Life Ins. Co., 273 N. Y. 261; Smith v. Travelers Ins. Co., 76 Misc. 441; Dilleber v. Home Life Ins. Co., 69 N. Y. 256; Cushman v. U. S. Life Ins. Co., 70 N. Y. 72; Northern Life Ins. Co. v. King, 53 F. 2d 613, 285 U. S. 544; Lampke v. Metropolitan Life Ins. Co., 279 N. Y. 157; Travelers Ins. Co. v. Pomerants, 246 N. Y. 63; Mansbacher v. Prudential Ins. Co., 273 N. Y. 140; Sommer v. Guardian Life Ins. Co., 281 N. Y. 508.) The insured was not guilty of any common law fraudulent concealment. (Sebring v. Fidelity-Phenix Fire Ins. Co., 255 N. Y. 382; Armand v. Metropolitan Life Ins. Co., 135 Misc. 357, 228 App. Div. 625; Ames v. N. Y. Life Ins. Co., 154 Minn. 111; Eastern D. P. Dye Works v. Travelers Ins. Co., 234 N. Y. 441; Mallory v. Travelers Ins. Co., 47 N. Y. 52; Lampke v. Metropolitan Life Ins. Co., 279 N. Y. 157; N. Y. Life Ins. Co. v. Bacalis, 94 F. 2d 200; New York Life Ins. Co. v. Kwetkauskas, 63 F. 2d 890, 289 U. S. 762; Dilleber v. Home Life Ins. Co., 69 N. Y. 256; Blair v. National Security Ins. Co., 126 F. 2d 955.)

      Ronald B. Swinford, Kenneth de F. Carpenter and Ferdinand H. Pease for respondent.
    The policy never took effect as a contract of insurance because between the date of the written application for insurance and the date of the delivery of the policy the applicant violated the condition precedent provisions in the application relating to consultations and treatments by any physician in that he consulted with, was examined and received treatment by a physician between the date of his medical examination for insurance and the date of the delivery of the policy. (New York Life Ins. Co. v. Watkin, 229 App. Div. 211, 256 N. Y. 618; Polacheck v. New York Life Ins. Co., 147 Misc. 16, 240 App. Div. 1028, 151 Misc. 172, 243 App. Div. 692; Goldman v. New York Life Ins. Co., 152 Misc. 289, 242 App. Div. 665; Goldstein v. New York Life Ins. Co., 176 App. Div. 813, 227 N. Y. 575; New York Life Ins. Co. v. Conrad, 47 F. 2d 885; Hurt v. New York Life Ins. Co., 51 F. 2d 936; Wilder v. New York Life Ins. Co., 81 F. 2d 89; Zemler v. New York Life Ins. Co., 225 N. W. 81; Jones v. New York Life Ins. Co., 253 Pac. 200; Harrisburg Trust Co. v. Mutual Life Ins. Co., 122 Atl. 292; Piedmont & Arlington Life Ins. Co. v. Ewing, 92 U. S. 377; Drilling v. New York Life Ins. Co., 234 N. Y. 234; Oilman v. Metropolitan Life, 213 App. Div. 839, 242 N. Y. 512; Provancha v. Prudential Ins. Co., 202 App. Div. 778, 235 N. Y. 582.) The statements in the application for the policy in suit respecting certain diseases and consultations with a physician were continuing representations and as such they were not true on the delivery date of the policy, and the applicant having failed to disclose to the defendant the true facts, which it was his duty to do, there was a fraudulent concealment of material facts. (Stipcich v. Metropolitan Life Ins. Co., 277 U. S. 311; Goldstein v. New York Life Ins. Co., 176 App. Div. 813, 227 N. Y. 575; Equitable Life Assur. Soc. v. McElroy, 83 F. 631; New York Life Ins. Co. v. Gay, 36 F. 2d 634.) Defendant is not estopped to set up the breach of condition as a bar to recovery and is not to be deemed to have waived it because it did not make any inquiry at the time of the delivery of the policy as to whether or not the insured had consulted a physician. (Bollard v. New York Life Ins. Co., 98 Misc. 286, 182 App. Div. 915, 228 N. Y. 521; Metzger v. Aetna Ins. Co., 227 N. Y. 411; Drilling v. New York Life Ins. Co., 234 N. Y. 234.) Defendant fully complied with the statutory requirements of section 142 of the Insurance Law by attaching to and making a part of the policy in suit a “ true copy ” of the original application. Section 150 of the Insurance Law is not applicable because the written application for insurance which contains the agreement relied on herein was executed on December 13, 1939, whereas this section did not become effective until January 1, 1940. (Drilling v. New York Life Ins. Co., 234 N. Y. 234.) Even if section 150 of the Insurance Law were applicable there is no question but what the breach of this condition precedent to the coming into existence of any insurance contract did materially increase the risk of loss for duodenal ulcer is a serious condition. (Jenkins v. John Hancock Mut. Life Ins. Co., 257 N. Y. 289; Hurt v. New York Life Ins. Co., 51 F. 2d 936.)
   Desmond, J.

The suit is on a life insurance policy. The insurer’s defense is based on what the insurer calls the violation of a condition precedent which violation, according to defendant, produced a situation where," although a policy was issued, no insurance thereunder ever took effect. On December 13, 1939, Louis C. Katz applied to defendant for a $5,000 policy of insurance on his life. In the application form which was furnished to him by defendant and which he signed, there appeared this language: “It is mutually agreed as follows: 1. That the insurance hereby applied for shall * * * go into force * * * only if the applicant has not consulted or been treated by any physician or practitioner since his medical examination * * It is conceded that the applicant Katz did, without defendant’s knowledge, consult his own physician after he had undergone a medical examination conducted by a physician nominated by the insurer. The company’s medical examination was had on December 15, 1939, and the company issued the policy to Mr. Katz on January 17, 1940. His visits to his own physician (really two physicians acting together) were on January 15 and 16, 1940. His own physician, called as a witness by defendant, gave evidence that the tests made on those dates and other information then obtained, disclosed that the applicant Katz was suffering from a duodenal ulcer. The witness stated that the symptoms of such an ulcer will, “ generally speaking,” be completely relieved after four to six weeks of a dietetic regime, combined with complete or partial rest. Defendant’s assistant medical director, who had never seen applicant Katz but who had approved the issuance of the policy on the basis of information made available to the company, was another witness. He was asked whether a duodenal ulcer was serious; plaintiff objected to the question but the Trial Justice announced that he would take judicial notice that it was a serious condition; the witness then answered the question in the affirmative, saying that “ it may be considered so.” This physician was prevented, on plaintiff’s objection, from stating what action defendant would have taken, had it known of the ulcer. There was no other testimony as to the insured’s state of health except that of his wife who told of her husband’s active life and apparent vigor and freedom from illness about the time of the issuance of the policy. It is undisputed that the insured died on June 8, 1940, from coronary sclerosis, a disease unrelated to the intestinal ulcer. At the close of the proof, defendant moved for a directed verdict, which was denied, then asked the Court to let the case go to the jury, which motion was denied also; plaintiff’s motion for a directed verdict was thereupon granted. The Appellate Division unanimously reversed and dismissed the complaint, citing Goldman v. New York Life Ins. Co. (152 Misc. 289, affd. 242 App. Div. 665); New York Life Ins. Co. v., Watkin (229 App. Div. 211, affd. 256 N. Y. 618); Polachek v. New York Life Ins. Co. (151 Misc. 172, affd. 243 App. Div. 692), and Geer v. Union Mut. Life Ins. Co. (273 N. Y. 261). In none of those cases did this court pass on the precise question here presented to us, although the Goldman, Watkin and Polaohek cases dealt with the same language found in the application here, language which says distinctly that the policy shall not go into effect if the applicant on his own behalf consults a physician after he has been examined by the insurance company’s physician and before the policy is actually handed to him. In Drilling v. New York Life Ins. Co. (234 N. Y. 234) we held valid and effective a somewhat similar agreement written into the application, that the insurance was not to take effect unless the policy should be delivered and the premium paid while the applicant was in good health. We need not go so far as did the Supreme Court in Stipcich v. Metropolitan Life Ins. Co. (277 U. S. 311) (also involving a duodenal ulcer) where it was held that, without any promise or covenant in the application blank, an applicant was under a .duty .to inform the insurer fully of changes in his physical condition seriously affecting his health, which duty, held the Supreme Court, rested on no stipulation of the parties but was imposed by law because of the relationship of the parties and their obligations one to the other. We have no doubt that, unless our statutes dictate a different result, the agreement signed by applicant Katz is valid and to be interpreted as written, at least in cases where, as here, t he visit to the physician has to do with an ailment or condition which is reasonably to be considered serious.

Appellant urges the applicability to her case of sections 142 and 150 of the Insurance Law, as revised in 1939. (L. 1939, ch.-, 882.) As to section 142, we see in the dealings between the parties to this contract no violation of subdivision 1, which requires every life policy to contain the whole contract between the parties, and forbids the admission In evidence of the application unless a copy thereof is attached to the policy when issued. There is no requirement that a copy of the application be left with the applicant, or that the insurer make further inquiries, when issuing the policy, as to applicant’s health or visits to doctors. Mr. Katz’s signature to the application bound him as an applicant or offeror. (Drilling v. New York Life Ins. Co., supra.) Subdivision 3 of section 142 obviously has no place in this discussion since it relates to statements made by the applicant, and no such statements are litigated here. The same is true of section 149.

Nor do we see that section 150 of the statute serves appellant’s cause in any way. That section uses the term “ warranty ” to cover an insurance contract provision which has the effect of requiring, as a condition precedent of the taking effect of the insurance contract, the existence of a fact which tends to diminish, or the nonexistence of a fact which tends to increase, the risk of the occurrence of any loss within the policy’s coverage. Section 150 then lays down the rule that no breach of such a “ warranty ” shall avoid the insurance contract “ unless such breach materially increased the risk of loss, damage or injury within the coverage of the contract * * Appellant says that under section 150 there must now be shown a “ de facto increase in the risk.” But the only showing here is that the applicant’s visits to his physicians disclosed the existence of an intestinal ulcer, and that an intestinal ulcer is a serious condition. Apparently in section 150 the Legislature was seeing to it that a policy of insurance will not be avoided by proof of an immaterial “ breach of warranty.” Arguments and decisions as to the legal effect of nondisclosure of trivial ailments, or consultations with physicians relative to such ailments, do not furnish the answer to this case. We will leave to future litigations the question of the effect, under the application form here used, of a nondisclosed visit by the applicant after he has filed his application, to a physician, for treatment of an illness which is obviously trivial or which may be so considered. In the present case we have the covenant in the application, the undisclosed consultations, and the unquestioned fact that the condition found was not trivial. Defendant, not plaintiff, is entitled to judgment. The fact that the applicant died from another cause does not disprove the increase of risk. We find no evidence that the insurer ever knew of the breach of the condition, and so it is plain that there is neither waiver nor estoppel.

The judgment should be affirmed, with costs.

Rippey, J.

(dissenting). On December 13,1939, Louis C. Katz made a written application to defendant for a policy of insurance which contained a provision that The insurance hereby applied for shall not go into force unless * * * and then only if the applicant has not consulted or been treated by any physician or practitioner since his medical examination.” His medical examination, made by defendant’s physician, a report of which was made a part of the application, occurred on December 15,1939. The medical board of defendant approved the application on December 19, 1939. On the strength of the application, the report of the medical examiner and the approval of the application by the medical board, Katz was found to be an insurable risk, the application was approved by defendant’s underwriters on January 16, 1940, and the policy was issued and delivered to Katz on January 17, 1940, at which time the required premium was paid in full.

Katz, feeling indisposed, consulted physicians on January 15 and 16, 1940, and they advised him he had a duodenal ulcer. Undisputed evidence was presented from which the conclusion was permissible that such an ulcer would ordinarily disappear in short order, that he indicated no ill or disabling effects from that condition at any time and that the indisposition concerning which he consulted the physicians together with the discovered condition was trivial and not material to the insurability of the applicant. Katz died on June 8, 1940, and it is conceded that the cause of his death was coronary sclerosis, a disease entirely unrelated to and not affected or produced by the duodenal ulcer or any indisposition for which he had consulted the physicians or which they discovered on his examination.

The sole defense relied upon by defendant in this suit by the representatives of Katz to recover on the policy was the failure of Katz to advise it of his consultation with the physicians between the date of the application and the delivery of the policy which, it is claimed, constituted a misrepresentation by the insured material to the risk. There was no claim made by defendant or evidence in the case of the fraudulent concealment of any material fact. There was no evidence that knowledge of defendant of the truth would have led to its refusal to make the contract. The trial court held, as matter of law, upon the authority of Geer v. Union Mutual Life Ins. Co. (273 N. Y. 261), that the misrepresentation or suppression of the truth was not material to the risk and directed a verdict for the plaintiff for the amount of the policy with accrued interest. The Appellate Division reversed and dismissed the complaint, holding, as matter of law, also upon the authority of the Geer case, that “ the breach of warranty was material as it deprived the insurer of an opportunity to determine whether to accept or reject the application ” (265 App. Div. 822).

By the decision in the Geer case, handed down March 9,1937, this court formulated and laid down the rule upon antecedent authority that any untrue representation, however innocent, either by affirmation of an untruth or suppression of the truth, where the insured had previous notice that specified information was required by the insurance company before it would issue its policy, was, as matter of law, either immaterial or material to the risk according to the facts. Notoriously, to overcome the legal effect of that and previous decisions, the Legislature enacted sections 149 and 150 of chapter 882 of the Laws of 1939. By subdivision 2 of section 149, it is provided that “No misrepresentation shall avoid any contract of insurance or defeat recovery thereunder unless such misrepresentation was material. No misrepresentation shall be deemed material unless knowledge by the insurer of the facts misrepresented would have led to a refusal by the insurer to make such contract.” Section 150, subdivisions 1 and 2, so far as material read: “ 1. The term ‘ warranty ’ as used in this section, means any provision of an insurance contract which has the effect of requiring, as a condition precedent of the taking effect of such contract or as a condition precedent of the insurer’s liability thereunder, the existence of a fact which tends to diminish, or the non-existence of a fact which tends to increase, the risk of the occurrence of any loss, damage, or injury within the coverage of the contract. * * * 2. No breach of warranty shall avoid an insurance contract or defeat recovery thereunder unless such breach materially increased the risk of loss, damage or injury within the coverage of the contract. * *

The purpose of the Legislature is not open to debate. The language used is clear and unambiguous.' There is no field open for construction on the question under consideration. Whether a false representation or suppression of a fact for which information is requested by the insurer as a condition antecedent to the completion of a contract of insurance tends to diminish or increase the risk of loss and is material to the risk or whether a breach of warranty, if one such exists, materially increases the risk of loss are no longer questions of law for the court but are now questions of fact which must be determined as such under rules applicable to other cases where questions of fact arise. Unless the misrepresentation or suppression of a fact or breach of warranty, if any such occurs, by the insured is found, as a fact, to be material to the risk, recovery on the contract may no longer be avoided. In no case may it now be held that recovery on a policy of life insurance may. be avoided by a mere false representation or misrepresentation of a fact or by the suppression of a fact called for in an application for an insurance policy, without more, whether it becomes by statutory definition a part of the ultimate contract or a “ warranty ” or not. No court has the right nor will it be presumed to undertake by any process of reasoning to nullify a mandate of the Legislature so clear and unequivocal for the sake of salvaging some previous decision that may be on the books. It cannot be urged that the policy never came into being. Defendant seeks to have the contract which it made upon sufficient consideration declared void for the suppression of a material fact by the insured.

In this case the question of the materiality of the suppression of the fact that insured had visited physicians between the date of the application and the date of the delivery of the policy was sharply litigated. The evidence in the record was open for different inferences and conclusions by reasonable minds. Appellant is not foreclosed by practice in the lower courts from urging her exceptions here. The questions of fact raised on the record upon material and decisive questions should have been determined as such under applicable rules.

The judgment appealed from should be reversed and a new trial granted, with costs to appellant in all courts to abide the event.

Lehman, Ch. J., Lotjghran, Conway and Thacher, JJ., concur with Desmond, J.; Rippey, J., dissents in opinion in which Lewis, J., concurs.

Judgment affirmed.


source: Caselaw Access Project

author: Lehman, Ch. J.

license: Public Domain

text:
    The People of the State of New York ex rel. Edith C. MacCracken, Respondent, against William S. Miller et al., as Commissioners of Taxes and Assessments of the City of New York, Appellants.
    Argued May 17, 1943;
    decided July 20, 1943.

      Robert H. Schaffer, Acting Corporation Counsel (Arthur A. Segall, Arthur H. Goldberg and Edmund B. Hennefeld of counsel), for appellants.
    The Appellate Division erred in giving controlling weight to the sale of the property in suit and to the eighteen similar mansion sacrifice sales and the valuation opinion of the relator’s expert founded on those sales. The conditions of those sales were plainly repugnant to the statutory standard of “ ordinary circumstances ” and the prices realized could not possibly represent the “ full value ” which is the only proper basis for tax valuation. (Matter of Board of Water Supply of New York, 277 N. Y. 452; Administrative Code, [L. 1937, ch. 929] § 155b-1.0; People ex rel. Parklin Operating Corp. v. Miller, 287 N. Y. 126.) The Trial Justice properly refused to give controlling weight to the sacrifice sales. When all the evidence and factors of value in the case are weighed, it is evident that the Trial Justice’s original findings of value were fully in accord with the weight of the evidence. The finding of value by the trier of the facts should not have been disturbed by the Appellate Division. (People ex rel. Parklin Operating Corp. v. Miller, 287 N. Y. 126; Commercial Casualty Ins. Co. v. Roman, 269 N. Y. 451; People ex rel. Third Ave. R. R. Co. v. Tax Commrs., 212 N. Y. 472.) The 1939-40 grievance application was jurisdictionally defective for failure to “ specify clearly the objection ” to the assessment “ and the grounds for such objection ” (Charter § 163). Accordingly, the courts below should have dismissed the 1939-40 proceeding as erroneous as a matter of law. (Oliner v. American-Oriental Banking Corp., 282 N. Y. 588, 282 N. Y. 748; Matter of Van Vliet, 224 N. Y. 545; Sikora Realty Corp. v. City of New York, 262 N. Y. 312; People ex rel. 2440 Concourse, Inc., v. Miller, 178 Misc. 1038, 261 App. Div. 948, 285 N. Y. 862; People ex rel. Champlin v. Gray, 185 N. Y. 196; People ex rel. Masonic Hall Assn. v. White, 218 App. Div. 38, 244 N. Y. 564; People ex rel. Irving Trust Co. v. Miller, 264 App. Div. 270; People ex rel. N. Y. C. R. R. Co. v. Goldfogle, 93 N. Y. L. J. 2783, 248 App. Div. 864, 273 N. Y. 681; People ex rel. Laurelton Development Co. v. Purdy, 190 App. Div. 957.) The Appellate Division may not substitute its finding of value for the original finding of the Trial Justice unless such latter finding is contrary to the weight of the credible evidence. The Appellate Division may not modify such a finding merely because it concludes that had it been the trial court, it would have found a different value. (Matter of City of New York [Newtown Creek], 284 N. Y. 493; Boyd v. Boyd. 252 N. Y. 422; York Mortgage Corp. v. Clotar Constr. Corp., 254 N. Y. 128; Smith v. Smith, 273 N. Y. 380; Baird v. Mayor, 96 N. Y. 567; Sanger v. French, 157 N. Y. 213; Crane v. Baudouine, 55 N. Y. 256; Westerlo v. DeWitt, 36 N. Y. 339; Foster v. Bookwalter, 152 N. Y. 166; Devlin v. Greenwich Sav. Bank, 125 N. Y. 756; Nugent v. Metropolitan St. Ry. Co., 46 App. Div. 105; Schargel v. United Electric L. & P. Co., 127 Misc. 24; Adamson v. Gilliland, 242 U. S. 350; People ex rel. Hilton v. Fahrenkopf, 279 N. Y. 49.)

      William H. King and Herbert Whyman for respondent.
    The Court of Appeals does not have jurisdiction to hear the appeal insofar as the same seeks to review the unanimous affirmance by the Appellate Division of the denial by the Special Term of the defendants ’ motion made at the trial to dismiss the 1939-40 proceeding for a jurisdictionally defective protest application. Instead of dismissing the 1939-40 proceeding as requested by the defendants, the Appellate Division denied their claim by unanimously directing greater reduction of the assessment for that year as well as for 1940-41. ‘It thus unanimously affirmed the Special Term’s denial of their motion to dismiss the 1939-40 proceeding. An appeal to the Court of Appeals from such unanimous affirmance could properly be taken only pursuant to the provisions of subdivision 5 of section 588 of the Civil Practice Act. Herein no such certificate was made by the Appellate Division nor did the Court of Appeals allow an appeal. (Matter of City of New York [White Plains Road], 224 N. Y. 454; Matter of Van Vliet, 224 N. Y. 545; Werner v. City of New York, 229 N. Y. 566; Oliner v. American-Oriental Baking Corp., 282 N. Y. 588.) The preponderance of the competent credible evidence clearly showed gross error in the Special Term’s valuations and fully justified the modified findings of value by the Appellate Division. (People ex rel. Loeser & Co. v. Goldfogle, 249 N. Y. 284.) The application to the Tax Commission for correction of the 1939-40 assessment adequately showed that the ground of objection was overvaluation and the application was not jurisdictionally defective. (People ex rel. Irving Trust Co. v. Miller, 264 App. Div. 270.)z
   Lehman, Ch. J.

In March, 1939, the relator purchased a private dwelling at 1025 Fifth Avenue for the sum of $137,500, paid in cash. The dwelling had been erected in 1907 by a man of great wealth upon a plot forty feet wide, and was occupied by him until his death in June 1938. After his death the property was transferred to his legatee, who did not desire to occupy it. For the year 1939 — 40 the property was assessed at $280,000; land $230,000, building $50,000. For the year 1940-41 the property was assessed at $260,000; land $210,000, building $50,000. Applications were filed for the correction of the assessment in both years and, after denial of the applications, certiorari proceedings were commenced to review the assessments. At the hearing in Special Term, witnesses, qualified as experts, were produced by each side and they expressed strongly divergent opinions as to the value of the property. The trial court reduced the assessment for the year 1939-40 to $238,000; land $198,000, building $40,000; and for the year 1940-41 reduced the valuation of the building an additional $2,000. The Appellate Division reduced the assessment for each year to $145,000; land $120,000, building $25,000.

Three companion cases in which the Appellate Division reversed findings of the court at Special Term in certiorari cases to review tax assessments were argued in this court on the same day and are decided herewith. (People ex rel. Prudential Ins. Co. v. Lilly, 291 N. Y. 600; People ex rel. Chemical Bank & Trust Co. v. Miller, 291 N. Y. 507; People ex rel. Bryant Park Building, Inc., v. Miller, 291 N. Y. 528.) In all these cases the city has urged that ‘‘ the Appellate Division may not substitute its finding of value for the finding of the Trial Justice unless the latter finding is clearly contrary to the weight of the credible evidence ” citing Matter of City of New York (Newtown Creek), (284 N. Y. 493). We find no authority in the cited case or in other cases decided by this court for any differentiation in the powers of the Appellate Division to review and set aside findings of value by the Special Term in a certiorari proceeding and its powers to reverse findings of fact made by Special Term in other special proceedings or actions.

This court has pointed out that in certiorari proceedings the judicial tribunal must “ deal with the testimony as courts deal with evidence, and not in the manner of mere administrative tribunals like a board of tax commissioners.” In such proceedings “ new evidence is taken which, by command of the statute, the court was bound to consider in making its determination. In other words, it was the duty of the court to retry the questions of fact and decide them over again, and whether its findings were written out or left to necessary implication, there is no escaping the conclusion that the facts are conclusively presumed to have been decided de novo.” (People ex rel. Manhattan Ry. Co. v. Barker, 152 N. Y. 417 at p. 431. See, also, People ex rel. Thomson v. Feitner, 168 N. Y. 441 at p. 457; People ex rel. Jamaica W. S. Co. v. State Board of Tax Commrs., 196 N. Y. 39, at pp. 49 and 50.) The Appellate Division has a general power to review findings of fact made by the trial court and must render ‘ ‘ final judgment * * * according to law, except where it may he necessary or proper to grant a new trial or hearing.” (Civ. Prac. Act, § 584.) No provision of the Civil Practice Act, the Tax Law, or the Administrative Code of the City of New York (L. 1937, ch. 929) imposes any express limitations upon this general power when the Appellate Division reviews findings of value made de novo by the court at Special Term in certiorari proceedings. Where upon such review the Appellate Division reverses the findings of value made by the court at Special Term and makes new findings of fact, the Court of Appeals must choose between the findings of the Special Term and the new findings of the Appellate Division in the same manner as if the findings had been made in some other proceedings or actions. We must then at times appraise the relative weight of conflicting testimony and render judgment upon those findings which we determine are in accord with the weight of the evidence.” (People ex rel. Hilton v. Fahrenkopf, 279 N. Y. 49, at p. 53.)

The test that should he applied in reviewing findings of value is not different from the test which should be applied in reviewing other findings of fact. In all cases the appellate court in appraising the weight of evidence must recognize that its power to reverse a finding of the trial court is not unlimited, and that the Trial Judge who has seen and heard the witnesses and has opportunity to question them and to guide the course of the trial, has often an advantage over the Appellate Judge who must reach his conclusion upon the written record alone. So this court has pointed out that, however broad may be the statutory grant of power to the Appellate Division to determine an appeal upon the merits both as to matters of law and fact, its power to reverse a finding of fact may be exercised only in accordance with the general rules of law regulating appeals to that court. It may not set aside a finding of value made at Special Term, unless such finding is based upon erroneous theory of law or erroneous ruling in the admission or exclusion of evidence, or unless it appears that the court at Special Term has failed to give to confiding evidence the relative weight which it should have and thus has arrived at a value which is excessive or inadequate.” (Italics are new.) (Matter of City of New York [Newtown Creek] supra at p. 497.) Where the Appellate Division reviews a finding of fact its inquiry is not confined to an examination of whether the finding is supported by some credible evidence, if it appears that upon all the credible evidence a different finding would not have been unreasonable. Then the Appellate Division must, like the court at Special Term, weigh the relative probative force of conflicting testimony and the relative strength of conflicting inferences that may be drawn from the testimony. The opinion in Matter of City of New York (Newtown Creek) (supra) is misread if it is accepted as authority for a narrower definition of the power of the Appellate Division. Where men may reasonably differ, choice is determined by individual judgment, and an exercise of such judgment is, under the law of this State, subject to review by an appellate court. That is why the law of this State confers upon the Appellate Division power to review questions of fact as well as questions of law and has conferred upon this court power to review questions of fact where the Appellate Division makes new findings of fact and grants final judgment thereon. In such case “ we are to search the record and, with appropriate respect for the findings of the trial court, are to review the facts found by the Appellate Division. (York Mortgage Corp. v. Clotar Constr. Corp., 254 N. Y. 128, 134.) ” (Forbes v. Todd, 266 N. Y. 384, 386).

The expert witnesses produced by the parties have, as we have said, expressed opinions of value which vary widely. Sales of similar property before 1929 and a few sales since that date were made at prices as high or higher than the value found by the court at Special Term; and the cost of reconstructing the dwelling, erected in 1907, would be far greater than the value placed by Special Term upon the improvement. On the other hand, since 1929 such private dwellings have been seldom if ever erected, and are not sought by purchasers for occupancy. Nor is there any reasonable probability that such dwellings will again he sought for occupancy. The sale of the property in 1939 for $137,500 was made by a wealthy owner to a purchaser interested in contiguous property held for sale or improvement. Doubtless the owner was willing to accept the price because she did not wish to occupy the dwelling and saw no prospect of obtaining a higher price at that time, and did not believe that it would he profitable to hold the property, paying the taxes thereon, until a higher price could be obtained. Other owners of real property were willing sellers for the same reasons. Doubtless, too, the buyer would not have bought the property if she had not foreseen a profit from her investment. That she was perhaps in a better position than other possible buyers to realize a profit might cast doubt upon the probative force of the sale to establish that a price as high could have been obtained from other ready buyers; it does not diminish its probative force to establish that a seller under no economic compulsion to sacrifice the property for an inadequate price was willing to sell at the price actually paid and that no buyer was ready to pay a higher price. A very considerable number of sales of similar property made within a few months at comparable prices are evidence that willing sellers found buyers ready to pay a price based upon the probability of future profit from the investment, but found few if any ready buyers who would pay a higher price to obtain the property for immediate use. Choice between opposing opinions is dictated by appraisal of the relative weight of conflicting considerations, and a trial court is in little better position than the appellate court to make the appraisal. Since it does not appear that this condition is due to temporary causes the finding of value by the Appellate Division which accords with expert opinion supported by actual sales is not against the weight of evidence.

One other question remains. The application to the Tax Commission for the correction of the assessed valuation of the property for the year 1939-40 was made on a blank furnished by the city and was signed by the seller of the property who then held its record title. The statute requires that the application for the correction of an assessment shall “ specify clearly the objection thereto and the grounds for such objection.” (New York City Charter [1938], § 163. See, also, Tax Law, § 27.) A motion by the city, made at the trial, to dismiss the proceeding to review the tax assessment on the ground that the application failed to specify the objection and its grounds, was denied at Special Term. The city now urges that the application is jurisdictionally defective.

We assume that the court cannot review the assessed valuation of real estate unless previous application for the correction of such valuation has been made to the Tax Commission in accordance with the statute, and that the Tax Commission might disregard as a futile gesture an application which fails to specify clearly the grounds of objection. The printed forms of application furnished by the city to aggrieved owners of property in 1939 contain the following questions, which were calculated to elicit the information required by the statute: “ Is the objection based on the valuation of the land or the building? ” “Is the objection based upon any inequality? If so, give particulars.” “ Is the objection based on illegality? If so, give particulars or add separate sheet. ’ ’ These questions were not answered by the owner, who executed and filed the application in 1939 in this case. The owner did, however, fill in the blank space for a statement of the assessed valuation as follows: * ‘ Land $230,000, total $280,000. ’ ’ The printed forms, immediately after the space left for a statement of the assessed valuation, contain the question: “ "What do you consider was the fair value of the property on January 25th this year? ” In answer to that question the protesting owner stated in the appropriate space: “ $137,500.” We need not now decide whether such answer would as matter of law constitute a sufficient specification of the objection of the owner that the real property taken as a whole was overvalued, for it appears beyond dispute in this case that the Tax Commission regarded the application as a sufficient statement of such objection and then overruled the objection. Since the application as executed gave to the Tax Commission the information required by the statute, the city cannot now be heard to object to the sufficiency of the specification of objection.

The order should be affirmed, with costs.

Lotjghban, Eippey, Lewis, Conway and Desmond, JJ., concur; Thacheb, J., taking no part.

Order affirmed.


author: Per Curiam.

text:
    In the Matter of John F. Miller, Respondent, against Mildred E. Kling, as Clerk of the County of Chautauqua, Appellant.
    Argued May 24, 1943;
    decided July 20, 1943.

      James O. Moore for appellant.
    The determination of the County Clerk upon the facts is supported by proof sufficient to establish the facts necessary to be proven in order to sustain the determination, and the evidence against such facts does not, as a matter of law, preponderate against the facts upon which the determination was based. (Matter of Weber v. Town of Cheektowaga, 284 N. Y. 377; People ex rel Guiney v. Valentine, 274 N. Y. 331; Matter of Roge v. Valentine, 280 N. Y. 268; Matter of Stork Restaurant, Inc., v. Boland, 282 N. Y. 256; Matter of Heaney v. McGoldrick, 286 N. Y. 38; Matter of Savoy Associates, Inc., v. Valentine, 266 App. Div. 63; Matter of Carroll v. Knickerbocker Ice Co., 218 N. Y. 435; Matter of New-brand v. City of Yonkers, 285 N. Y. 164; Matter of Davis v. Sayer, 205 App. Div. 562; People ex rel. Kelly v. Kirchwey, 177 App. Div. 706; Sharkey v. Thurston, 268 N. Y. 123; People ex rel. Rudd v. Cropsey, 173 App. Div. 714.) The County Clerk was the only person who had the jurisdiction to make the determination and the procedure was in all respects regular. (Civil Service Law, § 22, subd. 1; Sharkey v. Thurston, 268 N. Y. 123.) Even though the appointment of the Deputy County Clerk in charge of the Motor Vehicle Bureau were not authorized she was a de facto appointee so far as petitioner was concerned. (Curtin v. Barton, 139 N. Y. 505; Terhune v. Mayor, 88 N. Y. 247; Lambert v. People, 76 N. Y. 220; Matter of McMenamy v. Aitken, 289 N. Y. 653.) The County Clerk acted in good faith, and accorded petitioner a full and impartial hearing. (Plato v. Reynolds, 27 N. Y. 586; Carpenter v. Ward, 30 N. Y. 245.)

      Michael D. Lombardo and Clarence G. Pickard for respondent.
    The Appellate Division having found that the determination of the County Clerk was against the weight of evidence, the Court of Appeals has no jurisdiction to review the facts. (Civ. Prac. Act, § 602; Haber v. Paramount Ice Corp., 264 N. Y. 98;
      Lefferts v. Lefferts, 263 N. Y. 131; McKellar v. American Synthetic Dyes, 229 N. Y. 106; People ex rel. Burke v. Wells, 184 N. Y. 275; People ex rel. Kohlman & Co. v. Law, 239 N. Y. 346.) The charges are either unsubstantiated by proof or too trivial to justify removal from office. (Matter of Mercer v. Dowd, 288 N. Y. 381; People ex rel. Fallon v. Wright, 7 App. Div. 185, 150 N. Y. 444; Matter of Crowley v. Fowler, 217 App. Div. 16; Matter of Griffin v. Thompson, 202 N. Y. 104; People ex rel. Keech v. Thompson, 94 N. Y. 451; Peole ex rel. Long v. Whitney, 143 App. Div. 17; People ex rel. Kelly v. Kirchwey, 177 App. Div. 706; People ex rel. Mitchel v. La Grange, 2 App. Div. 444; 151 N. Y. 664; People ex rel. Van Tine v. Purdy, 221 N. Y. 396; People ex rel. Campbell v. Campbell, 82 N. Y. 247.) The proceedings were illegally conducted in that the deputy did not conduct the proceedings in an impartial and judicial manner. The deputy appointed to hear the charges became a witness and attempted to administer the oath to herself. (Michel v. Semer, 205 App. Div. 281; Ullmann & Co. v. American Hawaiian S. S. Co., 134 Misc. 475; People ex rel. Kasschau v. Police Commrs., 155 N. Y. 40; People ex rel. Somerville v. Roosevelt, 156 N. Y. 692; People v. Hartnett, 124 Misc. 418; O’Reily v. People, 86 N. Y. 154; Bookman v. City of New York, 200 N. Y. 53; People ex rel. Kenyon v. Sutherland, 81 N. Y. 1.) The petitioner was deprived of the right to produce evidence of matters in dis-' proof of the charges made against him. The County Clerk and her deputy, Miss Carlson, have attempted to act as both prosecutor, judge, and jury, and have not accorded the petitioner an impartial hearing. Deputy Easling was never legally, appointed to her position. The proceedings were not instituted in good faith.
   Per Curiam.

In 1941, appellant County Clerk of Chautauqua County preferred charges against relator, who had held for many years a civil service position in the County Clerk’s office, as a Searcher and Supervisor of Motor Vehicles. Pursuant to section 22, paragraph 1, of the Civil Service Law, relator was given “ a hearing upon due notice upon stated charges,” before a Deputy County Clerk. The Deputy County Clerk made a report to appellant, recommending that the charges, with a few exceptions, be sustained. The County Clerk thereupon removed relator from his position. In this proceeding to review that ouster, the Appellate Division, by a divided court, annulled the County Clerk’s determination “ on the law and the facts,” hold hug that the charges were trivial and unsubstantial, that the County Clerk’s determination was unsupported by competent proof sufficient to satisfy a reasonable man, that there was a preponderance of proof against the existence of the facts which had to be proved to support the determination, and that the determination should be set aside as against the weight of the evidence.” (265 App. Div. 143, 146.)

We agree with the Appellate Division that a number of the charges, such as those involving the numbering machine, paper clips, et cetera, are unsubstantial. Others of the charges were not established by competent evidence, these including the charges as to leaving money unguarded in the Dunkirk office, as to alleged failure to make proper arrangements for opening the branch office bank accounts, and the so-called additional charge ” having to do with the incident on the evening of August 14, 1941. Some of the other charges, and the proof adduced to support them, are vague and general.

We come to the conclusion, however, that other charges are substantial, or might be so considered by a reasonable mind, and that these charges, to some of which we are about to refer, were supported by competent proof of all the necessary facts, and that there was no such preponderance of evidence against the existence of any of those facts as would require the setting aside of the verdict of a jury. (Civ. Prac. Act, § 1296; Matter of Weber v. Town of Cheektowaga, 284 N. Y. 377.) Among the charges which may be so regarded are those which accuse relator of overstaying his alloted vacation time without permission, of numerous mistakes in scheduling appointments for applicants’ tests, of leaving the County Clerk’s office without permission and of staying home from the office without permission, also the charges of insubordination and inefficiency with relation to the handling of mail. We cannot say, as matter of law, that the County Clerk, in treating those matters as substantial and serious, was acting whimsically, arbitrarily, irrationally or in bad faith. Nor can we say that those particular charges are unsupported by “ substantial evidence,” which is all that is required by way of proof. (See discussion in Commissioner Benjamin’s Report to the Governor on Administrative Adjudication, [1942] first, or unnumbered volume, p. 328, et seq.). Indeed, as to the charge of overstaying his vacation, without permission, for three or four days, the fact is undisputed. The County Clerk has the responsibility of managing her office efficiently. She has the power to remove her subordinates, subject only, when the subordinate is, like relator, a war veteran or a volunteer fireman, to the condition that she grant the subordinate a hearing upon due notice upon stated charges and that on such a hearing she sustain the burden of proving, by substantial evidence, misconduct or incompetency in serious particulars (Civil Service Law, § 22). When her determination comes to be reviewed in the courts under article 78 of the Civil Practice Act, the courts have no right to review the facts generally as to weight of evidence, beyond seeing to it that there is substantial evidence.” It is laboring the obvious and the oft-repeated to say that the courts may not substitute their judgment for that of the removing officer as to whether or not a subordinate should be removed. (People ex rel. Guiney v. Valentine, 274 N. Y. 331; Matter of Murphy v. Valentine, 284 N. Y. 524, 526.)

As to the statement in the Appellate Division’s order that its annulment of the County Clerk’s determination is “ on the law and the facts,” we find nowhere a grant of power to the courts to review such a determination “ on the facts.”

The order of the Appellate Division should be reversed and the proceeding dismissed, without costs.

Lehman, Ch. J., Loughban, Desmond and Thacher, JJ., concur; Lewis and Conway, JJ., dissent; Rippey, J., taking no part.

Order reversed, etc.


author: Rippey, J.

text:
    Chotapeg, Inc., Appellant, v. Sylvia M. Bullowa, Respondent.
    Submitted June 17, 1943;
    decided July 20, 1943.

      Charles A. Van Patten and Jacob B. Goldberg for appellant.
    Defendant’s violation of statutory duty to plaintiff’s damage gives rise to a cause of action in plaintiff’s favor. (Schmidt v. Merchants Despatch Trans. Co., 270 N. Y. 287; Michalek v. U. S. Gypsum, 16 F. Supp. 708; Karpeles v. Heine, 227 N. Y. 74; Racine v. Morris, 201 N. Y. 240; Willy v. Mulledy, 78 N. Y. 310; Abounader v. Strohmeyer & Arpe Co., 243 N. Y. 458; P. G. Poultry Farm, Inc., v. Newtown B.-P. Mfg. Co., 248 N. Y. 293; DiCaprio v. N. Y. C. R. R. Co., 231 N. Y. 94; Amberg v. Kinley, 214 N. Y. 531; Martin v. Herzog, 228 N. Y. 164; Pinghero v. Queens Co. Sav. Bank, 260 App. Div. 667; King v. Dredger, 256 App. Div. 1086; Roock v. Womer, 233 App. Div. 566; Schneider v. 44-84 Realty Corp., 169 Misc. 249, 257 App. Div. 932; Matter of City of New York [Hutchinson River Parkway Extension], N. Y. L. J., December 30, 1939, p. 2379; D’Onofrio v. Central Sav. Bank, 176 Misc 709.) The statute is expressly for the benefit of the owners of party walls. (Racine v. Morris, 201 N. Y. 240; Abounader v. Strohmeyer & Arpe Co., 243 N. Y. 458; P. G. Poultry Farm, Inc., v. Newtown B.-P. Mfg. Co., 248 N. Y. 393; DiCaprio v. N. Y. C. R. R. Co., 231 N. Y. 94; Willy v. Mulledy, 78 N. Y. 310; Schmidt v. Merchants Despatch Trans. Co., 270 N. Y. 287; Michalek v. U. S. Gypsum, 16 F. Supp. 708; Karpeles v. Heine, 227 N. Y. 74; Amberg v. Kinley, 214 N. Y. 531; Martin v. Herzog, 228 N. Y. 164; Tremblay v. Harmony Mills, 171 N. Y. 598.)

      William E. Friedman and William F. Beeler for respondent.
    The party wall section of the Building Code (Administrative Code, § C26-568.0, subd. a; L. 1937, ch. 929) is general in character and defines standards for the demolition of buildings in the city of New York in the interest of the general public. It does not expressly create in appellant a right of civil action for damages for its breach. Since the code section was not enacted for the special benefit of a particular group or class of persons, no provision for such a cause of action may be implied. (Schmidt v. Merchants Despatch Trans. Co., 270 N. Y. 287; Sheafer v. Breen, Inc., 263 App. Div. 135; City of Rochester v. Campbell, 123 N. Y. 405; Central Trust Co. v. Mann’s Restaurants, Inc., 166 Misc. 381, 254 App. Div. 823; Eckes v. Statler, 98 App. Div. 76.) Appellant is barred from raising any question other than the sufficiency of the single cause of action in its second amended complaint, which seeks to enforce a claimed statutory liability. (Dickinson v. Springer, 246 N. Y. 203; Stemmler v. Alsdorf, 224 N. Y. 426; Waldo v. Schmidt, 198 N. Y. 193; D’Onofrio v. Central Sav. Bank, 176 Misc. 709; Bicak v. Runde, 78 Misc. 358.)
   Rippey, J.

This action was commenced on January 25, 1941. The second amended complaint, in which plaintiff sues for damages arising from violation of a statute only, is before the court on this appeal. No answer has been interposed. The only question raised is whether or not the complaint upon its face states a cause of action.

Plaintiff alleges that the parties owned adjoining properties on which buildings stood with a common party wall between them; that defendant wrongfully neglected and failed to bend over the anchors at the beam ends and to brick in all open beam holes in the standing party wall, as required by statute, when she demolished the building on her property; and that “ by reason of such wrongful and unlawful acts and omissions on the part of the defendant, water from rain and melting snow and ice seeped in and dripped down and into the wall and other parts of plaintiff’s said building, thereby weakening the strength and utility of said wall, injuring and damaging the same, loosening bricks and masonry therein, resulting in cracks, exposing portions- of the inside plaster surfaces of plaintiff’s building to the elements damaging the same, and in injuring and damaging the chimneys and various parts of the plaintiff’s building.”

The statute referred to in the complaint was not pleaded in haec verba. That was unnecessary: the court will take judicial notice of it (Pine Grove Poultry Farm, Inc., v. Newtown B.-P. Mfg. Co., 248 N. Y. 293, 297). The statute upon which plaintiff relies is section C26-568.0, subdivision a, of the New York City Administrative Code (L. 1937, ch. 929), which reads as follows: “When a structure containing a party wall is being demolished, the owner of the demolished structure shall, at his own expense, bend over the anchors at the beam ends in the standing wall and shall brick in all open beam holes.”

Sub-article 4 of article 10 of title C of chapter 26 of the Administrative Code contains various sections for the “ protection of adjoining property.” The above-quoted section is found in that sub-article. It also provides a remedy for the enforcement of the provisions of the above-quoted section whereby the superintendent of buildings, in order to effectuate the purposes of that and other sections, shall, if requested by a person aggrieved or otherwise, notify in writing any owner or tenant of any requirements under the foregoing and other provisions of the Building Code, and if the person so notified fails to proceed within three days in accordance with such notice and to comply therewith within a reasonable time thereafter within the discretion of the superintendent, he may cause the work to he done and the cost of doing such work shall become a lien against the property recoverable in any court having jurisdiction (§C26-569.0), and to reimburse the city for expenses in connection therewith, including the expenses of court proceedings, the Corporation Counsel shall institute such necessary actions or proceedings as may he appropriate (§026-204.0, subd. b). Such a remedy through the agencies of the City of New York, if applicable, is not exdlusive. It does not limit “ protection of adjoining property ’ ’ to protection by city agencies, nor does it exclude an adjoining property owner from an action for damages which he might properly have upon the statute. Civil responsibility and public punishment by common usage have long since been established as appropriate and complementary associates ” (Abounader v. Strohmeyer & Arpe Co., 243 N. Y. 458, 465). The action in Racine v. Morris (201 N. Y. 240) proceeded upon that rule as a necessary foundation. The mere fact that the statute itself does not in specific terms give the adjoining property owner a remedy is no bar to his invoking such a remedy in the event that he may otherwise by implication have one under the statute (Abounader v. Strohmeyer & Arpe Co., supra, p. 466; Schmidt v. Merchants Despatch Transp. Co., 270 N. Y. 287, 305, 306).

The statute upon the basis of which liability is here sought to be imposed, when properly construed, possibly may be general in its character and define the care which must be exercised with reference to a party wall which is left standing after or during demolition of a building of which it is a part; it may be, and by the very terms of the stated purpose of the sub-article of which it is a part, must be at the same time special in character in the sense that it imposes a duty upon a person demolishing such a building for the benefit and protection of the adjoining owner’s property. In the first case, an action will lie in behalf of one whose property is injured to recover damages for negligence; in the other case, the action is upon the statute. The statute may have both ends in view (Amberg v. Kinley, 214 N. Y. 531; DiCaprio v. N. Y. C. R. R. Co., 231 N. Y. 94; Pine Grove Poultry Farm, Inc., v. Newtown B.-P. Mfg. Co., supra; Schmidt v. Merchants Despatch Transp. Co., supra). In the first case, failure to use the defined degree of care is evidence of negligence; in the other case, one ‘‘ who is to be particularly protected has a cause of action because the statute is violated to his injury ” (DiCaprio v. N. C. R. R. Co., supra, p. 97). Here, the whole nature and origin of the liability alleged is failure of defendant to follow the mandate of the statute. The statute was for the special benefit of the adjoining property owner and the right to recover damages is necessarily implied (Amberg v. Kinley, supra; see Schmidt v. Merchants Despatch Transp. Co., supra).

On this appeal and on the record before us, we find it unnecessary to consider whether by construction or by any process of reasoning the complaint may be sustained on the generality of the protective character óf the statute. The complaint is sufficient, at least, on its face, to set up a cause of action on the statute.

The judgments should be reversed, with costs to appellant in all courts, and the motion denied.

Lehman, Oh. J., Loughean, Lewis, Conway, Desmond and Thacheb, JJ., concur.

Judgments reversed, etc.


text:
    The People of the State of New York ex rel. Joseph Richards, Appellant, against Robert J. Kirby, as Warden of Sing Sing Prison, Respondent.
    Submitted June 11, 1943;
    Decided July 20, 1943.

      Joseph Richards, appellant in person.
    The conviction being in its nature illegal, as predicated upon an unconstitutional statute, a writ of habeas corpus will lie for relief. The relator was found guilty under an indictment charging him with the commission of crime “ as a third offender.” Thereafter the District Attorney filed an information charging the relator with being a fourth offender when he committed the crimes because of a conviction of escape in addition to the convictions charged in the indictment. On a jury’s verdict that he was the same person mentioned in the record referred to in the information he was sentenced as a fourth offender. The people were bound by the first verdict and estopped from proceeding with the information. Sections 1942 and 1943 of the Penal Law do not apply. Section 1699 of the Penal Law specifically states that the crime of escape is not to be used as a basis for the charge contained in the information. (People ex rel. Dixon v. Lewis, 249 App. Div. 464; People v. Pinder, 170 Misc. 345; People ex rel. Fry v. Hunt, 29 N. Y. S. 2d 927; People ex rel. Battista
      v. Christian, 249 N. Y. 314; Matter of Bain, 121 U. S. 1; Matter of McClusky, 40 F. 71; Terwilliger v. People, 299 N. Y. S. 351; Nielsen, Petitioner, 131 U. S. 176.)

      Nathaniel L. Goldstein, Attorney-General (Herbert A. Einhorn and Orrin G. Judd of counsel, for respondent.
    The appeal should be dismissed because there are other questions involved than a constitutional question. (Lewis v. Board of Education, 275 N. Y. 480; Matter of Chirillo, 283 N. Y. 417; Powers v. Porcelain Insulator Corp., 285 N. Y. 54.) The relator is not entitled to a writ of habeas corpus, as his appropriate remedy was by appeal. (People ex rel. Danziger v. Protestant Episcopal House of Mercy, 128 N. Y. 180; People ex rel. Tweed v. Liscomb, 60 N. Y. 559; People ex rel. Hubert v. Kaiser, 206 N. Y. 46; People ex rel. Holt v. Lambert, 237 App. Div. 39, 262 N. Y. 511; People ex rel. Patrick v. Frost, 133 App. Div. 179; People ex rel. Price v. Hayes, 151 App. Div. 561; People ex rel. St. Clair v. Davis, 122 N. Y. S. 788, 143 App. Div. 579; People ex rel. Rogalski v. Martin, 290 N. Y. 751; Terwilliger v. People, 299 N. Y. S. 351; People v. Richards, 263 App. Div. 586; People ex rel. Carollo v. Brophy, 263 App. Div. 238; Matter of Terwilliger v. Turk, 166 Misc. 246; Carlesi v. New York, 233 U. S. 51; Graham v. West Virginia, 224 U. S. 616; People ex rel. Temple v. Brophy, 248 App. Div. 442, 273 N. Y. 487; People ex rel. Doyle v. Atwell, 232 N. Y. 96.)
   Per Curiam.

Relator, acting as his own attorney, attempts to appeal direct to this court from the dismissal at Special Term of his writ of habeas corpus. Such a direct appeal can be taken where ‘ ‘ the only question involved on the appeal is the validity of a statutory provision of the state or of the United States under the constitution of the state or of the United States; and on any such appeal only the constitutional question shall be considered and determined by the court.” (Civ. Prac. Act, § 588, subd, 4.) On his attempted direct appeal here relator has raised other questions. He argues that sections 1699, 1942 and 1943 of the Penal Law were misconstrued by the court which sentenced him originally with the result, as he contends, that he was sentenced as a fourth offender instead of as a third offender. Serious though those questions may be, they cannot be answered on this appeal.

The appeal should be dismissed. (See 291 N. Y. 705.)

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

Appeal dismissed.


text:
    Elizabeth A. French, Appellant, v. Kensico Cemetery, Respondent.
    Argued June 10, 1943;
    decided July 20, 1943.

      Sidney L. Garwin and Joel Mencher for appellant.
    Unless the j contract created an agency coupled with an interest this agree-' ment was terminable at the will of appellant. But, as respondent never had an interest in the subject matter, there could not be an agency coupled with an interest. Therefore, the contract created a simple agency. (Kahlmeyer v. Greenwood Cemetery, 175 Misc. 167, 261 App. Div. 950, 287 N. Y. 787; Smith v. City of Providence, 63 R. I. 333; Hein v. Nee, 40 F. Supp. 594; McKenzie v. Harrison, 120 N. Y. 260; Gray v. Barton, 55 N. Y. 68; Terwilliger v. Ontario, C. S. R. R. Co., 149 N. Y. 86; Kerr S. S. Co. v. Kerr Navigation Corp., 113 Misc. 56; Taylor v. Burns, 203 U. S. 120; Hunt v. Rousmanier, 8 Wheat. 174.) A cemetery has power to acquire property and use the income therefrom for the care and preservation of a cemetery plot or structure for an indefinite or limited period of time acting as agent for the principal in caring for and preserving the cemetery plot of the principal. (Membership Corporation Law, § 76; Kahlmeyer v. Greenwood Cemetery, 175 Misc. 167, 261 App. Div. 950, 287 N. Y. 787.) Public policy does not necessitate the care and preservation of the cemetery plot. (Read v. Williams, 125 N. Y. 560; Matter of De Witt, 113 App. Div. 790, 188 N. Y. 567; Matter of Waldron, 57 Misc. 275; Matter of Mendel, 140 Misc. 719; Matter of Adler, 165 Misc. 806; Matter of Opdyke, 230 App. Div. 290; Matter of Voelkler, 158 Misc. 97; Matter of Cohen, 270 N. Y. 383; Matter of Gund v. Commr. of Internal Revenue, 113 F. 2d 61; Allegheny College v. National Chautauqua County Bank, 246 N. Y. 369.) If the agreement between the parties constituted a trust agreement, then the same may be revoked by the settlor, when the settlor "and beneficiary is the same person. (Smith v. Title Guar. & Tr. Co., 262 App. Div. 211; Cram v. Walker, 173 App. Div. 804; O’Hagan v. Kracke, 165 Misc. 4; Aranti v. Bankers Trust Co., 201 App. Div. 706; Faulkner v. Irving Trust Co., 231 App. Div. 87; Lee v. Taylor, 186 App. Div. 199; Phelps v. Thompson, 119 Misc. 875; Matter of Adler, 165 Misc. 806; Matter of Mendel, 140 Misc. 719.)

      Henry B. Barrett, Jr., for respondent.
    The agreement for the perpetual care of plaintiff’s lot and mausoleum created a charitable trust which may not be revoked by plaintiff. (International Fuel & Iron Corp. v. Donner S. Co., 221 App. Div. 253; Symmers v. Carroll, 207 N. Y. 632; Gillies v. Gillies, 239 App. Div. 582; Restatement of the Law of Trusts, §§23, 24; Leggett v. Perkins, 2 N. Y. 297; Moore v. Hegeman, 72 N. Y. 376; Mee v. Gordon, 187 N. Y. 400; Tobias v. Ketchum, 32 N. Y. 319; Matter of Blasius, 134 Misc. 753; Matter of Arnolt, 127 Misc. 579; Matter of Braasch, 206 App. Div. 96; Associate Alumni v. Theological Seminary, 163 N. Y. 417; Matter of Swan, 237 App. Div. 454.)
   Per Curiam.

The intention of the parties is clear that the defendant should accept the fund and invest it in interest-bearing securities and apply the income for the perpetual care of a burial plot. No purpose is served by attempted classification of the relationship created by the agreement of the parties. An agreement or a trust for such purpose is valid and enforcible under our statutes. (Personal Property Law, § 13-a; Membership Corporation Law, § 76; Surrogate’s Court Act, § 314.)

The judgment should be affirmed, with costs.

Lehman, Ch. J., Loughran, Rippey, Conway, Desmond and Thacher, JJ., concur; Lewis, J., taking no part.

Judgment affirmed.


text:
    Charles Moore, Individually and as President of Compressed Air, etc., Local Union No. 147, et al., Respondents, v. Joseph V. Moreschi, Individually and as President of International Hod Carriers’, etc., Union, et al., Appellants.
    Argued June 8, 1943;
    decided July 20, 1943.

      Edmond B. Butler, Raymond 'JD. O’Connell and Edward T. Galloway for appellants.
    The trial justice improperly substituted his judgment for the judgment of the trial board and the Appellate Division approved his act. (Matter of Pratt v. Rudisule, 249 App. Div. 305; People ex rel. Johnson v. N. Y. Produce Exchange, 149 N. Y. 401.) The trial court erred in that, assuming that the trial board was biased and prejudiced in its decision, the court granted an injunction not only setting aside the conviction of the respondents and the revocation of the charter and the punishment imposed on the individual plaintiffs, but also enjoined and restrained any further prosecution of the respondents on the charges, the guilt of which was admitted and demonstrated beyond a doubt. The trial court erred in assuming, first, that it had the right to infer that Moreschi and Bove were biased and prejudiced" against the plaintiffs, and in then proceeding to an inference upon this inference. (People v. Scharf, 217 N. Y. 204; Corrigan v. BobbsMerrill Co., 228 N. Y. 58; Ford v. McAdoo, 231 N. Y. 155; Weidman v. Ketcham, 278 N. Y. 129; Matter of Hayward, 143 Misc. 401; Polin v. Kaplan, 257 N. Y. 277.) The court had no power to revoke the charter of Local 8 and erred in attempting so to do. (Garfein v. McInnis, 248 N. Y. 261; Nilan v. Colleran, 283 N. Y. 84.) The court erred in denying the motions to dismiss and for a nonsuit at the close of plaintiff’s case when defendants other than Moreschi and the International rested, and finally at the conclusion of the whole case. The court assumed erroneously that he had the power, under section 211 of the Civil Practice Act, to use evidence introduced after defendants other than defendants Moreschi and the International had rested, against them. (Wheatley v. Boyce, 165 Misc. 512; Simon v. Lowenthal, 169 Misc. 718.) The court committed serious error in the admission of evidence and in the denial of the motion to strike out evidence improperly admitted. (Smith v. Smith, 79 N. Y. 634; McLoughlin v. National Mohawk Valley Bank, 139 N. Y. 514.) The judgment of the court below interfered with and violated the rights guaranteed by the Constitution of the United States and of this State. (Polin v. Kaplan, 257 N. Y. 277.) The court erred in failing to hold valid the defense of unclean hands. (Miller v. Gallagher, 176 Misc. 647.) The charges were amply sustained by the evidence before the trial board.

      Louis B. Boudin and Hyman N. Glickstein for respondents.
    The International had no power under its Constitution to revoke the charter of Local 147. (Pirics v. First Russian Society, 83 N. J. Eq. 29.) The conviction on Charge 12 was concededly illegal and void; and the.conviction on the other charges was clearly a pretext to better enable the International to punish respondents for the offense charged as " Charge 12 ”. (Polin v. Kaplan, 257 N. Y. 277; St. Louis S. W. Ry. Co. of Texas v. Thompson, 102 Tex. 89.) The trial board hatched the plot which culminated in the trial and judgment which are the basis of this suit. The proceedings before the trial board were not only unfair but farcical, and in defiance of law. (Local No. 7 v. Bowen, 278 F. 271.) The judgment of the trial board was clearly void as a matter of law, aside from being unfair as a matter of fact. (Shapiro v. Gehlman, 244 App. Div. 238; Gersh v. Ross, 238 App. Div. 552; Polin v. Kaplan, 257 N. Y. 277.) The appellants other than Moreschi and International are properly included in the judgment because of their character as instruments of the International in carrying out the plot against Local 147. (Wheatley v. Boyce, 165 Misc. 512; Simon v. Lowenthal, 169 Misc. 718; Report of Judicial Council, 1938.) The claim that the court had no power to annul the charter of Local 8 is clearly untenable. (Garfein v. McInnis, 248 N. Y. 261.) The annulment of the charter of Local 8 was absolutely necessary for the protection of Local 147, as well as of the individual members thereof. (United Cloak & Suit Designers Mut. Aid Assn. v. Sigman, 218 App. Div. 367; Master Horseshoers’ Protective Assn. v. Quinlivan, 83 App. Div. 459.) The United States Constitution and the doctrine of res judicata both support the judgment herein. (Local No. 7 of Bricklayers’, Masons’ & Plasterers’ International Union v. Bowen, 278 Fed. 271; Nilan v. Colleran, 283 N. Y. 84; Rodier v. Huddell, 232 App. Div. 531; Shapiro v. Gehlman, 244 App. Div. 238.)
   Per Curiam.

There is evidence sufficient to sustain the finding that the decision of the trial board of the defendant International Union against the plaintiff Local 147 was unduly influenced by the defendant Moreschi. Hence that decision was validly annulled by the courts below.

There are provisions in the judgment which seem to us to be so broad as to surpass the limits of the power of the courts to intervene between a voluntary association and its members. If Local 147 and its members are to enjoy all rights and privileges of membership in the International Union, they must be subject to any proceeding by the International Union affecting them, provided the International Union act in good faith and within the scope of its jurisdiction. The judgment should be modified by the addition of a direction that none of its provisions shall operate to deprive the International Union of its power so to act.

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

Lehman, Ch. J., Loughean, Rippey, Lewis, Conway, Desmond and Thacheb, JJ., concur.

Judgment accordingly


author: Conway, J.

text:
    Equitable Life Assurance Society of the United States, Respondent, v. David L. Milman et al., Appellants.
    Argued June 10, 1943;
    decided July 20, 1943.

      Henry Cohen for appellants.
    Policy No. 3,671,934 — for $15,000 — and policy No. 2,724,591 — for $5,000 — never lapsed. Payment of the premium was waived because of Milman’s disability. (Birdsall v. Lewis, 246 App. Div. 132, 271 N. Y. 592; Equitable Life Assur. Soc. v. Boyd, 51 Ariz. 308; Equitable Life Assur. Soc. v. Neff, 10 N. E. 2d 307; Hartol Products Corp. v. Prudential Ins. Co., 290 N. Y. 44; Lewis v. Ocean Acc. & Guar. Corp., 224 N. Y. 18; Silverstein v. Met. Life Ins. Co., 254 N. Y. 81; Dennis v. Massachusetts Benefit Assn., 120 N. Y. 496; Equitable Life Assur. Soc. v. MacKirgan, 86 F. 2d 271; Minnesota Mut. Life Ins. Co. v. Marshall, 29 F. 2d 977; New York Life Ins. Co. v. Jackson, 94 F. 2d 288, 98 F. 2d 950, 304 U. S. 261; Fidelity Mut. Life Ins. Co. v. Gardner 233 Ky. 88; Metropolitan Life Ins. Co. v. Carroll, 209 Ky. 522; Missouri State Life Ins. Co. v. Carroll, 174 Okla. 142.) The reinstatement of policy No. 3,696,772 for $5,000 by payment on June 30, 1933, of arrears of premium was not procured by any misrepresentation. (Thompson v. Postal Life Ins. Co., 226 N. Y. 363; Miller v. Continental Casualty Co., 261 App. Div. 395, 287 N. Y. 643; Geer v. Union Mut.

      Life Ins. Co., 273 N. Y. 261; Cushman v. U. S. Life Ins. Co., 70 N. Y. 72; Krauza v. Golden Seal Assurance Society, 221 App. Div. 380, 247 N. Y. 536; Anderson v. Etna Life Ins. Co., 265 N. Y. 376; Nowak v. Brotherhood of American Yeomen, 249 N. Y. 78, 252 N. Y. 465.) The reinstatement of policy No. 2,981,338 for $2,000 was not procured by any misrepresentation. (Hunter v. Wetsell, 84 N. Y. 549; Thompson v. Postal Life Ins. Co., 226 N. Y. 363.)

      Eugene Z. Du Bose and James D. Ewing for respondent.
    Policy No. 3,671,934 — for $15,000 — lapsed for nonpayment of the premium due October 4, 1933, and policy No. 2,724,591 — for $5,000 — lapsed for nonpayment of the premium due on September 4, 1933. Plaintiff was entitled to réscind the rein-statements of said policies. (New York Life Ins. Co. v. Rosen, 227 App. Div. 79, 255 N. Y. 567; Axelroad v. Metropolitan Life Ins. Co., 242 App. Div. 400, 267 N. Y. 437; Ryer v. Prudential Ins. Co., 185 N. Y. 6; Morss v. Purvis, 68 N. Y. 225; Hungerford v. Wagoner, 5 App. Div. 590; Teeter v. United Life Ins. Assn., 159 N. Y. 411; Struhl v. Travelers Ins. Co., 255 App. Div. 527, 281 N. Y. 584; Baraca v. Metropolitan Life Ins. Co., 154 N. E. 90.) The premium on the $15,000 policy was due October 4, 1933, and, therefore, was not a premium “ falling due after ” the effective date of disability. (Talsky v. New York Life Ins. Co., 244 App. Div. 661, 270 N. Y. 665; Hand v. Equitable Life Assur. Society, 251 App. Div. 321; Marek v. Mut. Life Ins. Co., 244 App. Div. 346, 268 N. Y. 724; Manufacturers Trust Co. v. Equitable Life Assur. Soc., 244 App. Div. 357; Bergholm v. Peoria Life Ins. Co., 284 U. S. 489; Nederland Life Ins. Co. v. Meinert, 199 U. S. 171; Klein v. Insurance Co., 104 U. S. 88; New York Life Ins. Co. v. Statham, 93 U. S. 24; Shira v. New York Life Ins. Co., 90 F. 2d 953.) The reinstatement of policy 3,696,772 in the face amount of $5,000 was procured by misrepresentations. (Nowak v. Brotherhood of American Yeomen, 252 N. Y. 465; Saad v. New York Life Ins. Co., 201 App. Div. 544, 235 N. Y. 550; Travelers Ins. Co. v. Pomerantz, 246 N. Y. 63; Krauza v. Golden Seal Assurance Society, 221 App. Div. 380, 247 N. Y. 536.) The reinstatement of policy No. 2,981,338 in the face amount of $2,000 was procured by misrepresentations. (Goldstein v. New York Life Ins. Co., 176 App. Div. 813, 227 N. Y. 575; Equitable Life Assur. Soc. v. McElroy, 83 F. 631; Cable v. U. S. Life Ins. Co., 111 F. 19; Piedmont & Arlington Life-Ins. Co. v. Erwing, 92 U. S. 377.)
   Conway, J.

Judgment modified by reversing as to Policy No. 3,696,772, and as so modified, the judgment is affirmed with costs to the appellant.

On the application for reinstatement of the above numbered policy, defendant failed to disclose that he had consulted physicians once for constipation and three or four times for a cold. Such failure did not constitute “ a misrepresentation, material or otherwise.” (Geer v. Union Mut. Life Ins. Co., 273 N. Y. 261, 267.) The printed application form stated: “ I hereby certify that I am in good health; that except as stated below, I have had no illness, have not consulted any physician or practitioner, * * * since the issuance of the policy.” A reasonable construction of the scope of the disclosure required excludes consultations “ for such minor ills as constipation or common cold in the head, which are readily relieved by simple remedies and do not impair his general health.” (Jenkins v. John Hancock Mut. Life Ins. Co., 257 N. Y. 289, 293.)

The insured is still alive —- ten years after making the application for reinstatement. The constipation and colds were not the cause of his disability. The facts which were not disclosed were not such as might reasonably affect the choice of the insurance company as to whether to accept or reject the application (Geer v. Union Mut. Life Ins. Co., supra) nor did the failure to disclose them materially increase the risk. (Cf. Insurance Law, § 150.)

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

Lehman, Oh. J., Loughran, Rippey, Desmond and Thacher, JJ., concur; Lewis, J., taking no part.

Judgment accordingly.


author:
      Per Curiam.
     Rippet, J.

text:
    In the Matter of John W. Crawford, Individually and as Chairman of the Kings County Committee of the American Labor Party, and as Chairman and Member of the Executive Committee of the Kings County Committee of the American Labor Party, et al., Appellants, against S. Howard Cohen et al., Constituting the Board of Elections of the City of New York, Respondents, and John Gelo et al., Appellants and Respondents. In the Matter of Saul Mills et al., Individually and as Members of the Kings County Committee of the American Labor Party, and on Behalf of All Other Members of Said Committee Similarly Situated, Respondents and Appellants.
    Argued October 4, 1943;
    decided October 6, 1943.

      Leo J. Linder for John W. Crawford et al., petitioners-appellants.
    Petitioners’ appeal is as of right and petitioners are entitled to a review of the questions of fact. The order appealed from is a final order reviewable as of right. (Civ. Ppac. Act, § 588, subds. 1 [b], 1 [c].) jThe order appealed from is not a discretionary order. (Election Law, § 330.) The Court of Appeals has jurisdiction to review the facts in view of the determination of the Appellate Division. (Civ. Prac. Act, § 605 ; Matter of Murtha, 259 N. Y. 456.) Petitioners were entitled .to the relief prayed for and the Appellate Division erred in affirming the dismissal of the petition by Special Term. The issues with respect to the petition were adequately litigated. (37 Cyc. 527; Matter of Gabelmann, 136 Misc. 641; Matter of Hennessy,
      164 N. Y. 393.) The Court of Appeals should reverse the order of the Appellate Division by either (a) granting the petition or (b) reinstating the order of Special Term.

      Henry Epstein for Saul Mills et al., interveners-appellants.
    Interveners’ appeal is as of right and interveners are entitled to a review of the questions of fact involved herein. The Appellate Division erred in reversing findings of fact and the Court of Appeals should reinstate such findings on reviewing the facts. (Matter of Murtha, 259 N. Y. 456.) The issues with respect to the reversed findings were adequately litigated. (37 Cyc. 527; Matter of Gabelmann, 136 Misc. 641; Matter of Hennessy, 164 N. Y. 393; Citizens Trust Co. v. Prescott & Son, Inc., 221 App. Div. 426; Schultze v. Huttlinger, 150 App. Div. 489; Jones v. Merchants’ Nat. Bank, 48 Hun, 620, 113 N. Y. 629; Tribune Assn. v. Smith, 8 J. & S. 251, 68 N. Y. 621; Matter of Waldman v. Churchill, 262 N. Y. 247; Matter of Reed v. Bd. of Standards & Appeals, 255 N. Y. 126; People ex rel. Lester v. Eno, 176 N. Y. 513; Mawhinney v. Millbrook Woolen Mills, 231 N. Y. 290; Bedlow v. New York Floating Dry Dock Co., 112 N. Y. 263.) The issues with respect to the reversed findings are not irrelevant. The court has the power to supervise judicially a meeting of a county committee. (Election Law, § 330; Matter of Connolly v. Cohen, 173 Misc. 288, 258 App. Div. 944; Matter of Holley [Rittenberg], 268 N. Y. 484; Matter of Kelly v. Cohen, 255 App. Div. 787; People ex rel. Fleming v. Hart, 11 N. Y. Supp. 673, 13 N. Y. Supp. 903; Dusing v. Nuzzo, 263 App. Div. 59; Matter of Washington Avenue Baptist Church, 215 App. Div. 529; Matter of Kaminsky, 251 App. Div. 132, 277 N. Y. 524; Bartlett v. Gates, 118 F. 66; Deal v. Erie Coal & Coke Co., 248 Penn. St. 48.) The safeguards provided by the Appellate Division order do not insure a lawful meeting which will give effect to the will of the majority of the elected County Committee. Nothing less than judicial supervision will furnish such guarantee. Such supervision is urgently required in the high interest of maintaining our democratic institutions. (Matter of Broat, 6 Misc. 445; People ex rel. McCarren v. Dooling, 128 App. Div. 1; People ex rel. Cofey v. Democratic General Committee, 164 N. Y. 335.)

      Walter Jeffreys Carlin and Israel Convisser for John Celo et ah, appellants and respondents.
    The Election Law does not grant summary jurisdiction to the Supreme Court to declare null and void the election of officers of a county committee and members of its executive committee at a meeting, regularly and duly called, at which a quorum was present, agenda adopted, nominations made and an election held. (McKane v. Adams, 123 N. Y. 609; Matter of Ganley, 90 Misc. 445; Matter of Gordon [Amter] v. Board of Elections, 169 Misc. 730; Matter of Holley [Rittenberg], 268 N. Y. 484; Matter of Devine v. Osmann, 275 N. Y. 423; Matter of Hogan v. Supreme Court, 281 N. Y. 572.) If the court holds that positions as members of the Executive Committee of the County Committee are party positions, to which persons have been nominated and elected within the meaning of these words as used in section 330, then thirty-two persons have been deprived of such positions without hearing. The fact that the main auditorium of Prospect Hall was inadequate to hold the 3,479 members of the Kings County Committee did not justify the court in directing that a new meeting be held. The Appellate Division was not justified in giving to petitioners, whose petition was dismissed, joint control of the calling of a new meeting and the supervision of its activities. (Matter of Dermody, 262 App. Div. 1041; Matter of Connolly v. Cohen, 173 Misc. 288, 258 App. Div. 945.) The appeal of the petitioners should be dismissed. The Court of Appeals is precluded from considering any questions other than those of law, since in the instant case the Appellate Division reversed findings but made no new findings. (Civ. Prac. Act, § 602, subd. 2; § 605.)

      Ignatius M. Wilkinson, Corporation Counsel (Paxton Blair and Thomas W. A. Crowe of counsel), for Board of Elections of City of New York, respondent.
   Per Curiam.

Section 330, subdivision 2, of the Election Law gives the Supreme Court summary jurisdiction in a proper case to order a reconvening of an organization meeting of the county committee of a political party. So much of the order here appealed from as orders the county committee meeting reconvened, is justified by the proof that many of the committeemen who attended at the place chosen for the first meeting could not be accommodated there, and the proof that for that reason a determination as to the result of the balloting was impossible. The Appellate Division under the circumstances of this case properly refused to determine the disputed questions of fact as to other alleged irregularities. The other directions in the Appellate Division order do not seriously curtail the rights of any party and so do not require our attention. No other question survives in this court.

The order should be affirmed, without costs.

Rippet, J.

(dissenting). I dissent and vote to reverse the orders appealed from and to dismiss the petition on the ground that the Election Law confers no jurisdiction upon the Supreme Court to reconvene a meeting of the county committee duly called and conducted in accordance with section 15 of the Election Law and the rules of the party.

The field within which the plenary powers of the court may be exercised is limited to the matters specified in section 330 of the Election Law (Matter of Holley [Rittenberg], 268 N. Y. 484, 487). Subdivision 2 of that section limits the power of the court to act summarily as to “ The nomination of any candidate, or his election to any party position, * * By the Legislature alone may such summary powers as are here sought to be invoked be extended (Matter of Hogan v. Supreme Court, 281 N. Y. 572, 576).

Lehman, Ch. J., Loitghran, Lewis, Conwat, Desmond and Thacher, JJ., concur in Per Curiam opinion; Rippet, J., dissents, in opinion.

Order affirmed.


author: Desmond, J.

text:
    In the Matter of Francis McGovern, Appellant; Carl O. Olson, Respondent.
    Argued October 6, 1943;
    decided October 13, 1943.

      Robert E. Whalen and Morris Zuckman for appellant.
    Petitioner properly brought the Olson nomination before the Special Term for review. (Matter of Taylor v. Redmond, 239 App. Div. 112; Matter of Dallinger, 169 Misc. 150, 255 App. Div. 721; Matter of Frankel v. Cheshire, 212 App. Div. 664; Matter of Trosk v. Cohen, 149 Misc. 298, 240 App. Div. 825, 262 N. Y. 430; Matter of Vona v. Cohen, 150 Misc. 649, 240 App. Div. 827, 262 N. Y. 706; Matter of Wicksel v. Cohen, 262 N. Y. 446.) Upon the face thereof the Olson certificate of nomination was invalid, while the Nugent certificate was valid. (Matter of McGrath, 189 App. Div. 140; Matter of Murphy, 189 App. Div. 135; Matter of Lindgren, 232 N. Y. 59; Matter of Willcocks, 7 Cow. 402; Matter of Webster Loose Leaf Filing Co., 240 F. 779; Matter of Kaplan v. Cohen, 260 App. Div. 396, 284 N. Y. 633.

      Frank L. Wiswall and Edmund A. Koblenz for respondent.
    Respondent’s special appearance should have been sustained and the proceeding dismissed. (Klenert v. Iba, 17 Misc. 69; Felix v. Josephthal, 76 Misc. 267; Boston Nat. Bank v. Armour, 50 Hun, 176; Election Law, § 319-c; Schiller v. Weinstein, 45 Misc. 591; Rules Civ. Prac., rule 60.) Respondent’s nominating certificate fully complies with the law. (Election Law, §§ 131,139.) The matter contained in the alleged petition relating to the filing of a nomination certificate subsequent to the Olson certificate of nomination, did not give the court at Special .Term jurisdiction to uphold the Nugent certificate. (Matter of Schermerhorn, 141 Misc. 228.) The alleged petitioner having defaulted in proof to substantiate his objections filed with the Board of Elections may not be heard to complain before the Supreme Court. (Matter of Dallinger, 169 Misc. 150, 255 App. Div. 721.) The proceeding has no merit. (Matter of Aurelio v. Cohen, 266 App. Div. 603, 291 N. Y. 645.) The court at Special Term erred in sustaining the Nugent certificate. (Matter of Schermerhorn, 141 Misc. 228; Matter of Multer v. Cohen, 156 Misc. 564, 245 App. Div. 856; Matter of Dallinger, 169 Misc. 150, 255 App. Div. 721.)
   Desmond, J.

At the fall primaries held in August of this year the same number of votes was cast for each of the two candidates for the American Labor Party nomination for the office of supervisor, First Ward, City of Watervliet. Thereafter, to fill the vacancy, there were filed in the office of the County Commissioners of Elections, two purported designating certificates, one for each of those same two candidates. Written objections were filed to each such certificate. One of those certificates, purporting to designate respondent Olson as the nominee, was signed by two of the four persons who were then members, in and for that ward, of the county committee of the American Labor Party. That certificate was acknowledged before a notary public, and in it and in an attached affidavit were statements by the two signers that they were a majority of a quorum ” of the members of the county committee last elected by the American Labor Party in the First Ward of the city of Watervliet, New York. (See Election Law, § 139.) That Olson certificate has been held valid by the Board of Elections, invalid by Special Term and valid by the Appellate Division. We hold that it is on its face fatally defective because it is signed by the two committeemen individually and not by the presiding officer and secretary of the committee.” The requisites of a certificate to fill such a vacancy, caused by a tie vote at a fall primary, are found in the third and fourth paragraphs of section 139 of the Election Law. That section, besides calling for the signatures of a chairman and a secretary on such a certificate, requires also (in the absence of appropriate party rules) that the filling of the vacancy must be by “ a majority of a quorum ” of the committeemen of the party in and for the ward. By dictionary definition and in common parlance a quorum ” means such a number of the members of any body as is, when duly assembled, legally competent to transact business. The word “ quorum ” implies a meeting, and so the action must be group action, not merely action of a particular number of committeemen as individuals. A quorum of a four-member body is three, and a majority of three is two. Thus in this instance compliance with section 139 required that there be a duly assembled meeting of at least three of the four committeemen and that at least two of them vote for the designee. Not only does the Olson certificate lack any reference to a meeting or a chairman or secretary thereof but also the statement of the two signers of the Olson certificate that they were a majority of a quorum ” is negatived by the statements in an affidavit offered in support of the Olson certificate which affidavit shows that no such meeting was held.

The written objections to the Olson certificate were not abandoned or waived by the failure of the objectant himself to appear in person before the Commissioners. Objectant’s counsel did there appear in support of the objections. There was no need for more since the infirmities of the Olson certificate were patent.

The other certificate, designating Nugent as the nominee, complies on its face with all the requirements of section 139 and we agree with Special Term that it should not have been rejected by the Election Commissioners. We hold that the Election Commissioners were not required first to pass on the objections to the Olson certificate, which was filed first, before taking up the objections to the Nugent certificate. It was proper for the Commissioners to consider both certificates at the same hearing.

The Election Commissioners exhausted their powers when they passed on so much of the objections as pointed to alleged defects on the face of the certificates. They had no power to deal with objections involving matters not appearing upon the face of the papers.” (Matter of Frankel v Cheshire, 212 App. Div. 664, 671.) Such extrinsic matters could only be determined in court proceedings. (Election Law, § 330.) Such an extrinsic question was properly raised by respondent Olson, when in his answer to the petition in this proceeding, he alleged that the meeting, described in the Nugent designating certificate and in the petition in this proceeding, was not in fact held. At the Special Term hearing, however, respondent Olson produced no proof in support of that allegation. Thus the Nugent certificate, complete and sufficient as it was on its face, "stood unimpeached at the close of the court proceedings and designee Nugent was entitled to an order declaring him the nominee.

The order of the Appellate Division should be reversed and that of the Special Term affirmed, without costs.

Lehman, Oh. J., Loughran, Rippey, Lewis, Conway and Thacheb, JJ., concur.

Ordered accordingly.