text:
    Emily Wikoff, as Administratrix of the Estate of John H. Wikoff, Deceased, Respondent, v. Joseph Hirschel, Appellant.
    (Argued November 16, 1931;
    decided January 5, 1932.)

      E. J. Dimock and Glen W. Watkins for appellant.
    The courts of this State cannot enforce the New Jersey statute because its procedural provisions restrict its enforcement to that State. (Loucks v. Standard Oil Co., 224 N. Y. 99; Dudley v. Mayhew, 3 N. Y. 9; Marshall v. Sherman, 148 N. Y. 9; Slater v. Mexican National R. R. Co., 194 U. S. 120; Gregonis v. P. & R. Coal & Iron Co., 235 N. Y. 152; Consolidated Coppermines Corp. v. Nevada Consol. Copper Co., 127 Misc. Rep. 71; Commonwealth of Pennsylvania v. Beals, 139 Misc. Rep. 785; Matter of Malloy, 1 Dem. 421; Matter of Doyle, 257 N. Y. 244.)

      Morris A. Wainger and John C. Robinson for respondent.
    The New Jersey death act is enforceable in our courts. (Public Service El. Co. v. Post, 257 Fed. Rep. 933; Wooden v. W. N. Y., etc., R. R. Co., 126 N. Y. 10; Lauria v. Du Pont, 241 Fed. Rep. 687; Johnson v. Phœnix Bridge Co., 197 N. Y. 316; Wilson v. Dairymen’s League, 105 N. J. L. 188; Wachter v. Pizzutti, 276 U. S. 13.)
   Cardozo, Ch. J.

The action is brought to recover damages for the defendant’s negligence in causing the death of John H. Wikoff in Monmouth county, New Jersey.

A statute of New Jersey, enacted in 1848 and amended from time to time, established a cause of action in such circumstances, the suit to be brought in the name of the personal representatives, and the recovery to be for the exclusive benefit of widow, husband and next of kin in the proportion provided by law for the distribution of personal property upon intestate succession.

A supplemental statute, enacted in 1917 (Laws of New Jersey, 1917, ch. 180), provides that every such action shall be brought in the name of an administrator ad prosequendum, who shall have no authority to receive payment of the judgment, but that payment shall be made only to a general administrator “ who has given bond as required by law and who has been appointed on a petition which recites the amount to be * * * paid in settlement or in satisfaction of such judgment, or to one who * * * has filed with the tribunal appointing him a supplemental bond with two able sureties.”

On the death of John H. Wikoff, the plaintiff was appointed administratrix ad prosequendum and also general administratrix by the Surrogate of Monmouth county, New Jersey, and qualified in each capacity. The question is whether the cause of action existing under the statute of New Jersey is enforceable in New York.

Enforceable it plainly is, unless provisions in the statute of New Jersey are at war with our public policy (Loucks v. Standard Oil Co., 224 N. Y. 99, 110), or unless the remedies prescribed thereby are incapable of adaptation to the forms of our procedure (Loucks v. Standard Oil Co., supra, at p. 113; Slater v. Mexican Nat. R. R. Co., 194 U. S. 120).

The defendant does not urge that the public policy of New Jersey is different from ours. What is urged is merely this, that there is lacking in this State the procedural machinery whereby the statute can be made effective. If judgment shall be recovered in the name of the administratrix ad prosequendum and the general administratrix appointed in New Jersey there can be no collection of the judgment till the general administratrix shall have filed a supplemental bond in the State of her appointment. The argument for the defendant is that a judgment, not susceptible of collection at the hands of the plaintiff who recovers it, is unknown to our law.

The fact is, however, that it is not unknown at all. The law of New York permits the grant of limited letters whereby an executor or administrator receives authority to sue, but is restrained from collecting without giving a sufficient bond (Surrogate’s Court Act, §§ 89, 122). There will be no shock to our procedural forms in giving effect to like restrictions established in another State (cf. Public Service Electric Co. v. Post, 257 Fed. Rep. 933; Wilson v. Dairymen’s League, 105 N. J. L. 188, 191). All that there will be need to do will be to stay the enforcement of the judgment till the plaintiff shall have become qualified to collect it in accordance with the foreign law. The statute of New Jersey being the measure of the plaintiff’s cause of action, the courts of New York will not help her to collect a judgment any more than they will help her to recover one except in subjection to the restrictions conditioning her authority in the locus of the tort.

The defendant’s motion is directed to the single objection that the facts stated in the complaint do not constitute a cause of action. This does not include the objection that the plaintiff as a foreign administratrix is without legal capacity to sue, an objection deemed to have been waived unless seasonably urged (Civ. Pr. Act, § 278; Dearborn v. Mathes, 128 Mass. 194; Robbins v. Wells, 24 N. Y. Super. Ct. 666; Noonan v. Bradley, 9 Wall. [U. S.] 394). The general rule is that a foreign administrator is without standing in our courts (Helme v. Buckelew, 229 N. Y. 363, 365). Decedent Estate Law (Cons. Laws, ch. 13), section 160, after a brief and troublous existence (Helme v. Buckelew, supra; McMaster v. Gould, 240 N. Y. 379), was wiped off the statute books (Laws of 1926, ch. 660), and is no longer law to-day. The cases are in conflict upon the question whether, apart from the enabling provisions of that statute or of any other, a foreign administrator suing to recover damages for the death of a decedent is within the general rule, or may be regarded, if so constituted by the law of the State of the injury, as a special statutory trustee, privileged to sue any where (Am. L. Inst., Conflict of Laws, Restatement No. 4, § 432, and cases cited in the explanatory notes; Goodrich, Conflict of Laws, pp. 210, 211). We are not required to make a choice of the one theory or the other, for in view of the defendant’s waiver, the question is not here.

The order should be affirmed with costs, and the question certified answered “ yes.”

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

Order affirmed, etc.


source: Caselaw Access Project

author: Pound, J.

license: Public Domain

text:
    United States Mortgage and Trust Company, as Administrator with the Will Annexed of the Estate of Edwin D. Ruggles, Deceased, Appellant, v. Mary B. Ruggles et al., Respondents.

      (Argued November 18, 1931;
    decided January 5, 1932.)

      Carroll G. Walter and Edward J. Patterson for appellant.
    The policies, at least to the extent of $50,000, face amount, are not Ohio contracts and are not governed by the law of Ohio. (Northwestern Mut. Life Ins. Co. v. McCue, 223 U. S. 234; Ætna Life Ins. Co. v. Dunken, 266 U. S. 389; Gans v. Ætna Life Ins. Co., 214 N. Y. 326.) The disposition of the proceeds of the policies is governed by the law of New York, even if the policies be Ohio contracts, and no constitutional right of the widow is infringed by applying the New York law to such proceeds. (New England Mut. Life Ins. Co. v. Woodworth, 111 U. S. 138; Smith v. New York Life Ins. Co., 57 Fed. Rep. 133; 67 Fed. Rep. 694; 159 U. S. 262; Pullman Car Co. v. Pennsylvania, 141 U. S. 18; Pennoyer v. Neff, 95 U. S. 714; Lemmon v. People, 20 N. Y. 562; Sultan of Turkey v. Tiryakian, 162 App. Div. 613; 213 N. Y. 429; Goetchius v. Brightman, 245 N. Y. 186; Warner v. Jaffray, 96 N. Y. 248; Keller v. Paine, 107 N. Y. 83.) No State is bound to give effect to contracts made in another State where to do so would violate its own laws or policy and the right of a State to enforce its own laws and policy with respect to its own citizens and with respect to property within its limits exists even though the effect may be to defeat or impair contract rights obtained elsewhere. (Straus & Co. v. Canadian Pacific Ry. Co., 254 N. Y. 407; Goetchius v. Brightman, 245 N. Y. 186; Keller v. Paine, 107 N. Y. 83; Warner v. Jaffray, 96 N. Y. 248; Dearing v. McKinnon Dash & Hardware Co., 165 N. Y. 78; Green v. Van Buskirk, 5 Wall. 307; 7 Wall. 139; Hervey v. Rhode Island Locomotive Works, 93 U. S. 664; Walworth
      v. Harris, 129 U. S. 355; Smith v. New York Life Ins. Co., 57 Fed. Rep. 133; The Kensington, 183 U. S. 263; Bond v. Hume, 243 U. S. 15; Union Trust Co. v. Grosman, 245 U. S. 412; Bothwell v. Buckbee, Mears Co., 275 U. S. 274.) Section 55-a of the Insurance Law was not intended to affect either existing creditors or policies which already had matured. (Matter of Messinger, 29 Fed. Rep. [2d] 158; Bonvillian v. Howell, 237 Fed. Rep. 1015; Hollenbach v. Born, 238 N. Y. 34; Rhodes v. Sperry & Hutchinson Co., 193 N. Y. 223; Standard C. & M. Corp. v. Waugh Chemical Corp., 231 N. Y. 51; Jacobus v. Colgate, 217 N. Y. 235; Isola v. Weber, 147 N. Y. 329; O’Reilly v. Utah, Nevada & California Stage Co., 87 Hun, 406; Winfree v. Northern Pacific Ry. Co., 227 U. S. 296; Shwab v. Doyle, 258 U. S. 529; United States v. Heth, 3 Cranch, 399; Twenty Per Cent Cases, 20 Wall. 179.)

      Charles A. Riegelman and Harry F. Mela for Fidelity and Deposit Company of Maryland, amicus curiœ.

      Hiram Thomas and Edward A. Craighill, Jr., for Mary B. Ruggles, respondent.
    Section 52 of the Domestic Belations Law gave no rights to creditors of an insured husband unless the insurance contract was made under the authority of that statute and it had no application to insurance contracts made and to be performed in other States. (Chatham Phenix Nat. Bank v. Crosney, 251 N. Y. 189; Vanderpoel v. Gorman, 140 N. Y. 563; Mutual L. Ins. Co. v. Cohen, 179 U. S. 262; Matter of Thompson, 184 N. Y. 36; Dominick v. Stern, 79 Misc. Rep. 271; 157 App. Div. 944; 213 N. Y. 675.) The insurance contracts represented by the policies were made in Ohio and the rights of the parties to the proceeds thereof are governed exclusively by the law of Ohio. (Const, art. VI, § 7; Civ. Prac. Act, §§ 589, 602; Hearst v. N. Y. C. R. R. Co., 215 N. Y. 268; Grulich v. Paine, 231 N. Y. 311; Equitable L. Ins. Co. v. Clements, 140 U. S. 226; Mutual L. Ins. Co. v. Cohen, 179 U. S. 262; Mutual L. Ins. Co. v. Hill, 193 U. S. 551; Northwestern Mut. L. Ins. Co. v. McCue, 223 U. S. 234; Ætna L. Ins. Co. v. Dunken, 266 U. S. 389; Pool v. New England Mut. L. Ins. Co., 123 App. Div. 885; Millard v. Broughton, 177 Mass. 533.) Section 52 of the Domestic Relations Law did not become applicable to the Ohio contracts by the change of residence of insured and beneficiary to New York and it could not constitutionally be made applicable to them. (Ætna Life Ins. Co. v. Dunken, 266 U. S. 389; Burns v. Burns, 190 N. Y. 211; Mullen v. Reed, 64 Conn. 240; Central Bank of Washington v. Hume, 128 U. S. 195; Jones v. Ætna Ins. Co., 14 Conn. 501; Equitable Life Assur. Soc. v. McRee, 75 Fla. 257; Doss v. Campbell, 19 Ala. 590; Gluck v. Cox, 90 Ala. 331; Kirkpatrick v. Buford, 21 Ark. 268; Allen v. Hightower, 21 Ark. 316; Parrott v. Nimmo, 28 Ark. 351; State ex rel. Goldsall v. Chatham Nat. Bank, 80 Mo. 626; Rice v. Shipley, 159 Mo. 399; Block v. Cross, 36 Miss. 549; Elliott v. Hawley, 34 Wash. 585.) If section 52 of the Domestic Relations Law was applicable to the policies, its provisions upon which the action is based were repealed by section 55-a of the Insurance Law, which applied to the proceeds of the policies and deprived the court of jurisdiction. (Chatham Phenix Nat. Bank v. Crosney, 251 N. Y. 189; People ex rel. Huntington v. Crennan, 141 N. Y. 239; McFaddin v. Evans-Snider-Buel Co., 185 U. S. 505; Matter of Anderson, 178 N. Y. 416; Ware v. Hylton, 3 Dallas [U. S.], 199; Billings v. United States, 232 U. S. 261; Morgan v. Hedstrom, 164 N. Y. 224.)

      Edwin F. Valentine for Northwestern Mutual Life Insurance Company, respondent.
    The policy contracts issued by the defendant insurance company are Ohio contracts, and as the plaintiff has never asked for relief under the Ohio statutes nor proven compliance therewith it failed to make out a case. (Pool v. New England Mut. Life Ins. Co., 123 App. Div. 885; Vanderbeck v. Protective Home Circle, 98 Misc. Rep. 691; O'Neill v. Massachusetts

      Benefit Assn., 63 Hun, 292; Northwestern Mut. Life Ins. Co. v. McCue, 223 U. S. 234; New York Life Ins. Co. v. Cravens, 178 U. S. 389; Equitable Life Assur. Soc. v. Clements, 140 U. S. 226; Mutual Life Ins. Co. v. Cohen, 179 U. S. 262; Mutual Life Ins. Co. v. Hill, 193 U. S. 551; Ætna Life Ins. Co. v. Dunken, 266 U. S. 389.) The policy contracts issued by the defendant insurance company, being Ohio contracts and to be governed and construed according to the statutes of Ohio, section 52 of the Domestic Relations Law cannot be constitutionally applied to those contracts. (Ætna Life Ins. Co. v. Dunken, 266 U. S. 389.) Section 52 of the Domestic Relations Law having been repealed by section 55-a of the Insurance Law, the action is not maintainable and the creditors may not obtain any part of the insurance moneys. (Chatham Phenix Nat. Bank v. Crosney, 251 N. Y. 189.)
   Pound, J.

Plaintiff, as administrator of the will annexed of Edwin D. Ruggles, deceased, sues the widow of decedent and the defendant insurance company, pursuant to section 52 of the Domestic Relations Law (Cons. Laws, ch. 14), to recover for the benefit of the creditors of decedent such portion of the proceeds of insurance policies on the life of the husband, payable to the wife, as was purchased by annual premiums paid out by the husband in excess of $500 per annum. The amount demanded is upwards of $60,000.

The policies are in two groups, one issued by the Northwestern Mutual Life Insurance Company; the other by ¿Etna Life Insurance Company. The policies issued by the Northwestern Mutual Life Insurance Company were obtained in Ohio, where insured and his wife then resided, and the first premiums were paid there. They were payable at the company’s home office in Wisconsin. The ¿Etna policies were also issued in Ohio and were payable at the company’s home office in Connecticut. Under the laws of Ohio premium payments, not actually in fraud of creditors, are wholly beyond the reach of creditors.

Ruggles and his wife later changed their residence from Ohio to New York where they remained until he died. Five ten-thousand-dollar iEtna policies were, after they came to New York, split up for convenience into ten five-thousand-dollar policies, not by novation nor by a change in the original contract but by a mere division of the original insurance into smaller policies. The same is true of the Northwestern policies. A change of beneficiary was made, as the policies permitted, but no new contract of insurance was made. The place of contracting was where the policies were delivered to assured. (Northwestern Mut. Life Ins. Co. v. McCue, 223 U. S. 234.) The contracts of insurance were made in the State of Ohio and are, therefore, Ohio contracts (Dannhauser v. Wallenstein, 169 N. Y. 199; Ætna Life Ins. Co. v. Dunken, 266 U. S. 389) and not new contracts as in Gans v. Ætna Life Ins. Co. (214 N. Y. 326). The laws of Ohio govern the rights created by the policies (Central Bank of Washington v. Hume, 128 U. S. 195) in matters bearing upon the capacity of the parties to contract and upon the execution, the interpretation and the validity thereof. (Scudder v. Union Nat. Bank, 91 U. S. 406.)

Section 52 of the Domestic Relations Law provides: Insurance of husband’s life. A married woman may, in her own name, or in the name of a third person, with his consent, as her trustee, cause the life of her husband to be insured for a definite period, or for the term of his natural life. Where a married woman survives such period or term she is entitled to receive the insurance money, payable by the terms of the policy, as her separate property, and free from any claim of a creditor or representative of her husband, except, that where the premium actually paid annually out of the husband’s property exceeds five hundred dollars, that portion of the insurance money which is purchased by excess of premium above five hundred dollars, is primarily liable for the husband’s debts.”

The exception in this section was repealed by implication by section 55-a of the Insurance Law (Laws of 1927, ch. 468, in effect March 31, 1927; Cons. Laws, ch. 28). The rights of creditors in the proceeds of such policies are now confined to the amount of the premiums which may have been paid by the insured in fraud of his creditors. (Chatham Phenix Nat. Bank v. Crosney, 251 N. Y. 189.) Insured died March 13, 1926, prior to the enactment of section 55-a. The rights of the plaintiff were not affected by the repeal, as nothing indicates that it was the intention of the Legislature to prejudice the rights of creditors in the proceeds of policies due or paid prior to the new enactment (Hollenbach v. Born, 238 N. Y. 34), and if such was the intention the Constitution would frustrate it. (Bank of Minden v. Clement, 256 U. S. 126.)

Judge Lehman in the Crosney case has indicated how the statute, which had its origin in Laws of 1840, chapter 80, prior to the Married Women’s Acts of 1848, intended to create rights in a wife, under changed conditions, resulted in creditors having rights against a wife which they would not otherwise possess.” (Chatham Phenix Nat. Bank v. Crosney, supra, 194.) Once an extension of the right to contract, it became a limitation thereon. The common law saw difficulties in the way of procuring insurance on the life of the husband. The statute granted that right for the benefit of the wife with regard, however, to the conflicting rights of wife and creditors. Without the statute, the insurance money payable to the wife might not, in the year 1840, have been kept from the creditors. At least it would seem that on some such theory the remedial statute was passed. (Barry v. Equitable Life Assur. Soc., 59 N. Y. 587, 593.)

The Legislature has at length remedied this anomalous survival of the common law of married women by giving the wife the same rights to enforce contracts with insmv anee companies for insurance on her husband’s life as she has to enforce her contracts generally. (Bom. Eel. Law, § 51.) No policy of the forum is offended which might subject the proceeds of foreign policies to the State law or regulate the enforcement of rights against the proceeds of policies in the hands of the beneficiary. (Straus & Co. v. Canadian Pac. Ry. Co., 254 N. Y. 407, 414; Bond v. Hume, 243 U. S. 15, 21, 22; Bothwell v. Buckbee, Mears Co., 275 U. S. 274.) Comity and good morals alike permit the widow to enforce- and maintain in New York her contractual rights, valid where created, as freely as if she were single. She comes under the rule which provides that, in the absence of fraud or a statutory provision to the contrary affecting the contract, any life insurance effected in favor of another shall be payable to the beneficiary as against the creditors and personal representatives of the person effecting the same. (Central Bank of Washington v. Hume, supra.)

Matters respecting the remedy, such as the bringing of suits, admissibility of evidence, statutes of limitation, are governed by the lex fori and depend upon the law of the place where the suit is brought. (Scudder v. Union Nat. Bank, supra.) With such remedial matters we are not concerned. So also one who removes his own personal property into the State thereby submits to the laws of the State concerning its transfer. (Dearing v. McKinnon Dash & Hardware Co., 165 N. Y. 78, 87; Goetschius v. Brightman, 245 N. Y. 186, 191.) But money paid on a foreign insurance policy, unfettered by statutory restrictions at the place of contract, is when brought into the State, subject, like any other personal property owned here, only to the general laws of the State as to rights of creditors, and is free from local limitations on the right to contract. The State may not constitutionally regulate or interfere with the acts of foreign corporations outside its limits nor with the liberty of parties to take out contracts of insurance wherever they desire and collect the proceeds thereof. (Allgeyer v. Louisiana, 165 U. S. 578; St. Louis Cotton Compress Co. v. Arkansas, 260 U. S. 346.)

The conclusion follows that the New York statute, in placing a limitation upon the power of insurance companies to write policies payable to the wife, could reach only business transacted within the State; contracts made within the State. Indeed, we find in the statute no intention to prescribe limitations upon the contracts even of a New York corporation made outside the State. The statute has no extra-territorial effect. (Mutual Life Ins. Co. v. Cohen, 179 U. S. 262, 265, 266.) “ Can it be supposed that the legislature had in mind a foreign corporation and intended to assume a jurisdiction to declare 3uch an act [i. e., an assignment for the benefit of creditors] even when done outside this state * * * to be void and of no effect? This cannot be supposed, for we cannot impute to the legislature such ignorance upon the subject of its inability to give extra-territorial effect to its own laws.” (Vanderpoel v. Gorham, 140 N. Y. 563, 570.) Neither can it be supposed that the Legislature intended to incorporate the local statute into contracts made outside the State by residents of this State. Under the law of New York, the respective rights of the wife and the husband’s creditors are purely statutory ” and rest upon legislative grant.” (Matter of Thompson, 184 N. Y. 36, 43-45.) As the section applies only to New York contracts, it does not attach to the proceeds of insurance contracts made in States which contain no such limitation on the power of the parties to contract. Payment of premiums in New York does not change the rights of the parties. The policies constitute entire contracts for which the first premium is the consideration and the other payments are merely conditions. (Northwestern Mut. Life Ins. Co. v. McCue, supra; Cohen v. N. Y. Mut. Life Ins. Co., 50 N. Y. 610, 618.) No right of husband’s creditors attaches to the policies affected by this litigation or to the proceeds thereof.

The conclusion reached renders it unnecessary to say whether an action under the statute would lie against the defendant insurance company which had paid the policies to Mrs. Ruggles according to their terms (Kittel v. Domeyer, 175 N. Y. 205; Matter of Thompson, supra) or against the wife alone after administration upon the husband’s estate.

The- judgment should be affirmed, with costs.

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

Judgment affirmed.


author: O’Brien, J.

text:
    In the Matter of the Application of the City of New York Relative to Acquiring Title to Real Property Required for the Opening and Extension of One Hundred and Sixty-fifth Street in the Borough of Queens. Lloyds First Mortgage Corporation, Appellant; Bagdad Traders, Inc., et al., Respondents.

      (Argued November 16, 1931;
    decided January 5, 1932.)

      Henry Herz and Isaac E. Bermant for appellant.
    The conclusion of law that the award should be paid to the appellant is sustained by the evidence. (Van Winkle v. Van Winkle, 184 N. Y. 193; Hennessey v. Murdock, 137 N. Y. 317; Haberman v. Baker, 128 N. Y. 253; White’s Bank of Buffalo v. Nichols, 64 N. Y. 65; Matter of Opening Hamilton Road, 144 App. Div. 702; Pell v. Pell, 65 App. Div. 388; 169 N. Y. 607; Matter of City of New York [Avenue D], 200 N. Y. 536; Forster v. Scott, 136 N. Y. 577; Matter of Rhinelander, 68 N. Y. 105; City of Niagara Falls v. N. Y. C. & H. R. R. R. Co., 168 N. Y. 610; Hollaway v. Southmayd, 139 N. Y. 390; Matter of West One Hundred & Seventy-eighth Street, 135 App. Div. 520; 145 App. Div. 918; 203 N. Y. 570; Trowbridge v. Ehrich, 191 N. Y. 361; Smith v. Smith, 120 App. Div. 278; 193 N. Y. 667; Wilson v. Ford, 209 N. Y. 186; Mott v. Eno, 181 N. Y. 346; Blackman v. Striker, 142 N. Y. 555; Knowlton v. Atkins, 134 N. Y. 313; Miner v. Brown, 133 N. Y. 308; Heath v. Hewitt, 127 N. Y. 166; Herman v.
      Roberts, 119 N. Y. 37; Mott v. Richtmyer, 57 N. Y. 49; Bridger v. Pierson, 45 N. Y. 601.) As between grantor and grantee, a street is created when lands, clearly defined as to extent and location, are devoted to that end by the grant, whether it is then in the condition to use as a street or not, although it could only be a street on paper until actually opened. (Matter of Ladue, 118 N. Y. 213; Mott v. Mott, 68 N. Y. 246; Wallace v. Fee, 50 N. Y. 695; Perrin v. N. Y. C. R. R. Co., 36 N. Y. 120; Wagner v. T. U. R. R. Co., 25 N. Y. 526; Bissell v. N. Y. C. R. R. Co., 23 N. Y. 61; Geddes Coarse Salt Co. v. Niagara, Lockport & Ontario Power Co., 207 N. Y. 500; Trowbridge v. Ehrich, 191 N. Y. 361; Matter of Opening Eleventh Ave., 81 N. Y. 436; Terrett v. N. Y. & Bklyn. Steam Sawmill & Lumber Co., 49 N. Y. 666.) By virtue of its building loan mortgage appellant had a first lien on the premises described therein, including the damage parcels, for the full amount of principal indebtedness actually advanced by it under the building loan agreement. (Hyman v. Hauff, 138 N. Y. 48; Fairbanks v. Sargent, 104 N. Y. 108; York Mortgage Corp. v. Clotar Constr. Corp., 254 N. Y. 123.) As holder of first mortgage on the damage parcels appellant was entitled to have the award applied in payment of its deficiency judgment. (Brunswick Constr. Co. v. Burden, 116 App. Div. 468; Lambert v. Krum, 121 Misc. Rep. 170; King v. Mayor, 102 N. Y. 171; Matter of Scheier, 159 App. Div. 861; 211 N. Y. 548; Matter of Opening Hamilton Street, 144 App. Div. 702; Matter of City of New York [Newtown Creek Bridge], 128 App. Div. 150; 195 N. Y. 527; Harris v. Kingston Realty Co., 116 App. Div. 704; Matter of Mayor [Trinity Avenue], 116 App. Div. 252.)

      Michael M. Helfgott for Yarm Realty and Holding Corporation, respondent.
    The deed did not convey any title or interest in the land acquired by the city of New York and for which the award was made. (Bullard
      v. N. Y., N. H. & H. R. R. Co., 60 N. E. Rep. 380; Armstrong v. Dubois, 90 N. Y. 101; City of Geneva v. Henson, 195 N. Y. 464; Ogden v. Jennings, 62 N. Y. 530.) The construction of the description contained in the deed and of the “ together ” clause was a question of law and not of fact. (Muldoon v. Deline, 135 N. Y. 150; City of Geneva v. Henson, 195 N. Y. 447; Uihlein v. Matthews, 172 N. Y. 154; Morris v. Ward, 36 N. Y. 587; Alfalfa Lumber Co. v. Mudgett, 199 S. W. Rep. 337; Goulding v. Blanchard, 178 Ala. 298.)

      William Gold and George Goldberg for Bagdad Traders, Inc., respondent.
    The appellant never acquired any title or interest, either legal or equitable, in the land acquired by the city of New York, and for which the award was made. (Bullard v. N. Y., N. H. & H. R. R. Co., 60 N. E. Rep. 380.) The area included within the damage parcels which at the time of conveyance and mortgage was no part of the street, cannot be held to have passed to the mortgagee as appurtenant to the land actually conveyed and mortgaged and definitely described in the deed and mortgage. (Armstrong v. DuBois, 90 N. Y. 101; City of Geneva v. Henson, 195 N. Y. 464.) Nor can the area included within the damage parcels which at the time of conveyance and mortgage was no part of the street, be construed to have been conveyed herein by reason of the alleged necessity or convenience to the actual parcel conveyed, nor can the title to said area be adjudged to have been conveyed by implication. (Ogden v. Jennings, 62 N. Y. 530.) The parties to the written instruments are controlled by their intent, which, the instruments being unambiguous, must be ascertained strictly and entirely from the language employed therein. (Muldoon v. Deline, 135 N. Y. 153; City of Geneva v. Henson, 195 N. Y. 464; Uihlein v. Matthews, 172 N. Y. 159; Morris v. Ward, 36 N. Y. 596.) The description in the deed can in nowise be considered as a conveyance pursuant to the map. (Singer v. Mayor, 47 App. Div. 47.)
   O’Brien, J.

Puntine street, otherwise known as One Hundred and Sixty-fifth street, as laid out on the map or plan of the city of New York for a distance approximately one hundred and twenty-five feet south of the northerly line of Jamaica avenue in the borough of Queens, was a highway of varying width. In order to correct this irregularity, the city altered the existing map and adopted a new one, by which the width of Puntine street became substantially uniform, and instituted a condemnation proceeding to acquire title to the land lying between the old easterly line and the proposed new easterly line of the street. At a time when the parties had knowledge of the existence of a new topographical map and of the pendency of the condemnation proceeding and of the boundaries of the damage parcels on the damage map, the respondent Yarm Realty and Holding Corporation, the owner of premises abutting on the old easterly fine of the street, contracted to sell part of them to the Hurt jam Realty Corporation. In the agreement dated January 7, 1928, the property to be conveyed does not include the area between the old and new lines. The premises contracted to be sold are described as beginning at a point on the easterly side “ of the proposed new line ” of Puntine street a stated distance south from the intersection of the northerly side of Jamaica avenue with the said proposed new easterly fine ” of Puntine street, and running thence southerly along said easterly side ” of Puntine street. In the same agreement is incorporated this provision: “ It is understood and agreed between the parties that the land lying between the present line of the easterly side of Puntine street as heretofore laid out and the new proposed line as hereinabove described shall be and is hereby reserved to the seller and shall remain its property free and clear of any claim on the part of the purchaser and the seller shall be entitled to any and all awards that may be paid or awarded for the taking of any or all the property hereby reserved for the widening of Puntine Street or 165th Street, free and clear of any claim on the part of the purchaser, and free and clear of any easements in favor of the purchaser or the lessee; it being the intent of the seller to create no easements either public or private over and through the land hereby reserved to the seller and lying between the said easterly line of 165th Street, as heretofore laid out and the new proposed easterly line of Puntine or 165th Street.”

By this agreement the parties contracted in the clearest terms that the buyer should acquire no title to the lands within the condemnation area nor any right in an award for their taking. The form of the description, running along the proposed new side of the street, excludes aB interest in the highway (Ansorge v. Belfer, 248 N. Y. 145, 149; Monogram Development Co. v. Natben Construction Co., 253 N. Y. 320, 322) either as originaBy laid out or as appearing on the new map.

Encumbered by this agreement, which had the effect of limiting the boundary of its title to the new line of the street, the buyer, prior to closing title, applied to appeBant Lloyds First Mortgage Corporation for a loan to be secured by mortgage on the premises contracted to be conveyed. Appellant recognizing that, in the event of a discontinuance of the condemnation proceeding, the purchaser under its agreement would be without frontage on the street, refused to loan on property described as in that agreement and in a proposed deed as then drawn. It insisted upon, and both the buyer and seBer consented to, a substituted form of deed which, as prepared by the seder's attorney and executed and delivered January 30, 1928, embraces this additional clause: Together with aB right, title and interest of, in and to the land lying in the street, road or avenue as it now or formerly existed in front and adjoining said premises to the center lines thereof.” The clause in the agreement of January 7th relating to the reservation by the seller of all rights in the condemnation area was omitted from the deed. This deed describes the premises as beginning on the “ easterly side ” of Puntine street a stated distance from its intersection with Jamaica avenue “ as said street and avenue are shown on the final Tops. Map of the City of New York ” and running thence along the “ easterly side ” of Puntine street. The mortgage delivered simultaneously with the deed of January 30, 1928, embraces the same description and the “ together ” clause which had been added to the deed. It also includes the following provision: “The mortgagee agrees that at the time and place of the payment by the City of New York of any award for the legal opening of 165th Street for the taking of the land lying therein as now shown upon the Final Topographical Map, it will deliver a release of such land so taken from the lien of this mortgage without any consideration, providing that there is no default or breach of any of the terms, covenants or provisions of the Building Loan Agreement, Bond and Mortgage made between the parties hereto.”

Default in the terms of the mortgage having occurred, appellant foreclosed and entered a deficiency judgment. The city consummated its condemnation proceeding and the question is, which party, the mortgagee or the seller’s assignee, Bagdad Traders, Inc., is entitled to the awards for the damage parcels situate between the old and new lines of the street? An agreement whereby the buyer consented to an assignment of the awards to the seller was found as a fact to have been unknown to the mortgagee and, accordingly, it is not binding on appellant.

If the deed vested title in the Hurtjam Realty Corporation to the damage parcels, the mortgagee acquired a hen upon them and is entitled to the awards in satisfaction of its deficiency judgment. From the evidence throughout the case, the fact is patent that respondent Yarna Realty and Holding Company, although originally intending to retain title to the damage parcels, eventually formed the intention to convey them to respondent Hurt-jam Realty Corporation. Without title to them, a buyer of the premises east of the proposed new street line would doubtless encounter many obstacles in an attempt to obtain a building loan on such premises. The possibility that the city might fail to carry its proceeding to completion was not unreasonably remote, and upon property with no access to the street, the procurement of a loan would be practically impossible. Without a loan, the buyer would be embarassed in an effort to perform its contract to purchase and the owner might then be left holding title to land which it wished to sell. Counsel for the seller, respondent Yarm, concedes in his brief that such was the intention and that the new deed which was drawn by him was, at the time, thought by the parties to have the effect of describing and conveying property as running along the old easterly line and, therefore, including the damage parcels. Statements in that brief even suggest the possibility of a reformation of the deed and the mortgage, prior to foreclosure, by which the conceded intent of the parties might have been expressed. However, the argument is made that the language of the deed fails to express that intention. Not only did the intention exist, but we think that it has been expressed. The conveyance is of land which lies east of the proposed new line of the street and which abuts upon the area constituting part of the street as defined by the easterly line on the topographical map, together with all right, title and interest in and to the land lying in the street, road or avenue as it now or formerly existed in front and adjoining said premises to the center lines thereof.” To us the argument that the condemnation area was, at the time of the delivery of the deed, no part of any street “ now ” existing in front of the abutting property seems unsound. It is true that, at the date of delivery, title to the new part of the highway had not yet vested in the city. The parties, however, were not contemplating the city’s legal title to it. They were looking at and referring to the physical lines of a ground surface which both regarded for the purpose of that deed as part of Puntine street. The description in the deed refers to that street as shown on the Final Tops. Map of the City of New York.” Within the contemplation of the parties, as so expressed, there was a complete concurrence of view respecting the boundary of that tract which, at the time of delivery of the deed, constituted Puntine or One Hundred and Sixty-fifth street as shown on the map. It was all the land included within lines appearing on an official map to which reference was made in the instrument of conveyance. The parties intended it as a street, did not otherwise regard it, even called it a street, and accepted the name which the public authorities had given to it. (Bissell v. N. Y. Central R. R. Co., 23 N. Y. 61.) Title to land does not pass by implication but here it has been conveyed by explicit expression.

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

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

Ordered accordingly.


author: Kellogg, J.

text:
    Rose Inn Corporation, Respondent, v. National Union Fire Insurance Company et al., Appellants, and Importers and Exporters Insurance Company et al., Respondents, Impleaded with Another.
    (Argued October 23, 1931;
    decided January 5, 1932.)

      Charles B. Sullivan for appellants.
    The policies of the defendant-respondent insurance companies had not been validly canceled and were in effect when the fire occurred. (Kamille v. Home Ins. Co., 129 Misc. Rep. 536; Crown Point Iron Co. v. Ætna Ins. Co., 127 N. Y. 608; Gately-Haire Co. v. Niagara Ins. Co., 221 N. Y. 162; Van Wein v. Insurance Co., 118 N. Y. 94; Yoshimi v. Fidelity Fire Ins. Co., 99 App. Div. 69; Partridge v. Milwaukee Mechanics Ins. Co., 13 App. Div. 519; Stone v. Franklin Fire Ins. Co., 105 N. Y. 543; Herman v. Niagara Fire Ins. Co., 100 N. Y. 411; Ikeller v. Hartford Fire Ins. Co., 24 Misc. Rep. 136.)

      Charles L. Hoey for plaintiff-respondent.
    When the agency charged to the plaintiff the premiums on the new policies from the date the policies by their written terms took effect, and in turn paid the premiums to those new companies, then as between those new companies and the plaintiff the premiums were paid to the new companies. (Buckley v. Citizens Ins. Co., 188 N. Y. 399.)

      Frank Sowers for defendants-respondents.
    Where instead of employing a. broker the owner goes direct to an agent of insurance companies and gives him authority not simply to procure insurance, but also to maintain or keep up a stated amount of insurance on a specified property, and to select the companies, such employment empowers the agent on behalf of the owner to accept requested cancellations or reductions of insurance, to waive the five-day period of the standard cancellation notice, and to replace with other insurance in his own or other companies, all within the five days, and all without actual notice to the insured, and without awaiting a delivery of the new policy or policies to the insured. (Pelaggi & Co. v. Orient Ins. Co., 102 Vt. 384; Jackson v. Fire Association, 47 Hun, 637; 122 N. Y. 665; Sargent v. National Fire Ins. Co., 86 N. Y. 626; May v. Hartford Fire Ins. Co., 297 Fed. Rep. 997; Allemania

      Fire Ins. Co. v. Zweng, 127 Ark. 141; Todd v. German Am. Ins. Co., 2 Ga. App. 789; Hartford Fire Ins. Co. v. McKinley, 74 Fla. 186; Sterling Fire Ins. Co. v. Comision Reguladora, 195 Ind. 29; Warren v. Franklin Fire Ins. Co., 161 Iowa, 440; Wilson v. Insurance Co., 90 Kan. 355; Dibble v. Insurance Co., 70 Mich. 1; Hamm Realty Co. v. New Hampshire Fire Ins. Co., 80 Minn. 139; 84 Minn. 336; Ætna Ins. Co. v. Renno, 96 Miss. 172; Federal Ins. Co. v. Sydeman, 82 N. H. 482; Johnson v. North British Ins. Co., 66 Ohio St. 6; Standard Leather Co. v. Insurance Co., 224 Penn. St. 178; Dalton v. Norwich Union F. Ins. Co., 213 S. W. Rep. 230; Shippers Compress Co. v. Northern Assur. Co., 208 S. W. Rep. 939; Finley v. Western Empire Ins. Co., 69 Wash. 673; Hollywood Lumber & Coal Co. v. Dubuque Fire & Marine Ins. Co., 80 W. Va. 604; Schauer v. Queen Ins. Co., 88 Wis. 561.)
   Kellogg, J.

An agency, representing many insurance companies, was intrusted by its principals with the possession of blank fire insurance policies, which it was authorized to fill out and countersign, and, when completed, to issue and deliver to applicants for insurance. The plaintiff acquired property upon which the agency had previously written insurance. The agency was thereupon instructed by the plaintiff to maintain for it the amount of insurance previously written. This' amount in future was to remain the same, unless the plaintiff gave orders to increase it. The selection of the companies was left entirely to the agency; the plaintiff “ wanted a certain amount of insurance; ” that was all that it was interested in.” Thereafter the agency wrote policies for the plaintiff in companies of its own selection. When insuring companies notified the agency to cancel policies, the agency immediately marked them canceled upon its books, wrote policies in other companies, and sent the new policies to the plaintiff, with notices of cancellation of the old policies, The plaintiff was fully aware of this practice and never rejected the new policies delivered to it. In the particular instance with which we are now concerned, the agency followed its previous practice. The agency received notices from certain of its principals, the respondents, to cancel their policies. It immediately marked them canceled on its books; wrote up new policies in other companies, the appellants; and mailed new policies together with notices of cancellation of the old, to the plaintiff. Before these notices and policies were actually received by the plaintiff, and, therefore, before the expiration of the five-day period for cancellation provided for in the old policies, its property was destroyed by fire. It is a principle of almost universal acceptance that where an assured has applied for insurance to an agent, having authority to write policies for many companies, has left to the agent the selection of the companies, with instructions to maintain the insurance in an amount stated, and the agent has undertaken so to act, the agent, upon notice from his companies to cancel, has power to waive for the assured the five-day period of cancellation, to cancel the policies at once, and immediately to write new policies in other companies for the assured, so that the new policies become at once effective. The following cases are a few among many in which the principle stated has been enunciated: May v. Hartford Fire Ins. Co. (297 Fed. Rep. 997, 998); Sterling Fire Ins. Co. v. Comision Reguladora (195 Ind. 29); Federal Ins. Co. v. Sydeman (82 N. H. 482, 486); Schauer v. Queen Ins. Co. (88 Wis. 561); Pelaggi & Co. v. Orient Ins. Co. (102 Vt. 384). The holding in this case that the old policies had been canceled and that the new policies had become effective, was unquestionably correct.

The judgment should be affirmed, with costs.

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

Judgment affirmed.


author: Hubbs, J.

text:
    The People of the State of New York ex rel. Nathan J. Bensky, Appellant, v. Warden of the City Prison et al., Respondents.
    (Argued November 16, 1931;
    decided January 5, 1932.)

      William A. Blank and William Gitelman for appellant.
    The statements of the relator were absolutely privileged. (Dada v. Piper, 41 Hun, 254; Moore v. Manufacturers Nat. Bank, 123 N. Y. 426; Chapman v. Dick, 188 N. Y. Supp. 861; 197 App. Div. 551; Youmans v. Smith, 152 N. Y. 221; Sickles v. Kling, 60 App. Div. 515; Warner v. Paine, 4 N. Y. Super. Ct. 195.) The language used in the petition is not libelous per se. The explanation, accompanying the conclusions of the relator makes the words used not actionable. (Dempsey v. Paige, 4 E. D. Smith, 218; Quinn v. O'Gara, 2 E. D. Smith, 388; Dixson v. Phillips, 51 N. Y. Super. Ct. 162; Bannon v. Cleary, 6 N. Y. St. Repr. 36; Phillips v. Baker, 7 Wend. 439; Hayes v. Ball, 72 N. Y. 418; Trimbale v. Foster, 87 Mo. 49; Wing v. Wing, 66 Me. 76; Barnes v. Crawford, 115 N. C. 76; Carmichael v. Shiel, 21 Ind. 66; Allen v. Hillman, 12 Pick. 101.)

      Charles B. McLaughlin, District Attorney (Sol. Boneparth and Herman J. Fliederblum of counsel), for respondents.
    The libelous statements contained in relator’s petition are not privileged. (Moore v. Manufacturers Nat. Bank, 123 N. Y. 420; Gilbert v. People, 1 Den. 41; Lesser v. International Trust Co., 175 App. Div. 12; Union Mut. Life Ins. Co. v. Thomas, 83 Fed. Rep. 803; Byam v. Collins, 111 N. Y. 143; People ex rel. Adam v. Woodbury, 88 App. Div. 443; People ex rel. Harris v. Commissioners, 149 N. Y. 26.) The language used in the petition for mandamus is libelous per se. (Littlejohn v. Greeley, 13 Abb. Pr. 41; Burnham v. Hornaday, 130 Misc. Rep. 207; Ben-Oliel v. Press Pub. Co., 251 N. Y. 250; Mildenberger v. Fleming, 131 Misc. Rep. 919; 223 App. Div. 814; O’Shaughnessy v. Morning Journal Assn., 71 Hun, 47.)
   Hubbs, J.

Park View Towers, Inc., filed plans in the office of the Tenement House Department of the borough of Bronx, in the city of New York, for the erection of a six-story, non-fireproof tenement house. The building described in the plans was erected and the owner filed an application for a certificate of occupancy as required by law. The certificate of occupancy was issued and the owner rented the building to tenants who occupied it. The appellant, feeling aggrieved, filed a petition in the Supreme Court for a peremptory mandamus directing William J. Deegan, Tenement House Commissioner, to revoke the certificate of occupancy. The petition alleged that the certificate was issued in violation of Jaw. It set forth that the petition of the owner for a certificate of occupancy disclosed that the building did not comply with the Tenement House Law (Cons. Laws, ch. 61) and that the owner was not entitled to a certificate of occupancy because the building was constructed in violation of law in the particulars enumerated in the petition. It also alleged: That by means of a corrupt, illegal and improper agreement by and between the defendant owner of said building * * * ” and “ William J. Deegan, Tenement House Commissioner, his deputies and subordinates, the defendant (owner) was permitted to habítate and was granted a certificate of occupancy for the said building, all in violation of law.”

The defendant Tenement House Commissioner moved under the Rules of Civil Practice, rule 103, to strike out of the petition the words corrupt, illegal and improper agreement.” The motion was granted on the ground that the words were scandalous, irrelevant, redundant, unnecessary and impertinent. A motion was then made to dismiss the petition which was also granted. Both orders were reversed by the Appellate Division (Matter of Bensky v. Deegan, 232 App. Div. 86), and an alternative order of mandamus was granted. Before the decision in the Appellate Division, Commissioner Deegan filed a complaint in the City Magistrates’ Court, charging the appellant with criminal libel, in violation of section 1340 of the Penal Law. The complaint alleges that the words “ by means of a corrupt, illegal and improper agreement,” contained in the petition in the mandamus action were false and libelous, that they were published willfully and feloniously, with intent to injure the complainant in his business and occupation. After a hearing the City Magistrate committed the defendant and he was taken into custody by the Sheriff. He then instituted this proceeding for a writ of habeas corpus. The proceeding was dismissed at the Special Term and the dismissal was affirmed by the Appellate Division.

It is urged by the appellant that the allegations contained in the petition in the mandamus action were privileged communications, and, therefore, that he has not been guilty of the crime of pubhshing a libel.

The publication of a libel in violation of section 1340 of the Penal Law is deemed to be malicious “if no justification or excuse therefor is shown ” (§ 1342). It is justified “ when the matter charged as libelous is true, and was published with good motives and for justifiable ends.” It is excused when it is honestly made, in the belief of its truth and upon reasonable grounds for such belief, and consists of fair comments upon the conduct of a person in respect to public affairs. (Penal Law, § 1342.)

In addition to the defenses of justification and excuse to a prosecution for libel, there is a third defense, i. e., that the publication was privileged. (Penal Law, § 1350.)

In England counsel engaged in an action or proceeding before a court of competent jurisdiction and the parties to such litigation possess an absolute privilege from liability to an action for libel or slander based upon anything they may say or publish in the course of such litigation. It makes no difference whether the language used was material or relevant. It is deemed to be against public policy to permit a cause of action to be based upon it. If it relates to the cause before the court it is absolutely privileged. In Munster v. Lamb (11 Q. B. D. 588) the court assumed that the words used were defamatory, used maliciously, without justification, and were irrelevant. Nevertheless, Brett, M. R., said: With regard to counsel, the questions of malice, bona fides, and relevancy, cannot be raised; the only question is, whether what is complained of has been said in the course of the administration of the law. * * *

No action of any kind, no criminal prosecution, can be maintained against a defendant, when it is established that the words complained of were uttered by him as counsel in the course of a judicial inquiry, that is, an inquiry before any court of justice into any matter concerning the administration of the law” (p. 605).

All statements contained in documents and pleadings necessary to such a court proceeding are absolutely privileged upon the ground of public policy. (1 Russell on Crimes and Misdemeanors [9th ed.], p. 1005; Odgers on Libel and Slander [6th ed.], p. 191; Halsbury’s Laws of England, vol. 18, p. 682.)

The English doctrine has not been adopted in this country to its full extent but has been limited so that statements made in the cotuse of a judicial proceeding in order to be privileged, must be material and pertinent to the questions involved. (Gilbert v. People, 1 Den. 41; Hastings v. Lusk, 22 Wend. 410.)

In applying the principle announced in the older decisions our courts have been careful not to give it a narrow or strict construction. They have consistently held that if the alleged defamatory words used by counsel or a party in the course of a judicial proceeding may possibly be pertinent they are privileged. It is only when the language used goes beyond the bounds of reason and is so clearly impertinent and needlessly defamatory as not to admit of discussion that the privilege is lost. The underlying principle governing the courts of England and our own courts is that the proper administration of justice depends upon freedom of conduct on the part of counsel and parties to litigation. This tends to promote an intelligent administration of justice. To secure this is of much greater importance than to prevent the evils arising from reflections cast upon parties or witnesses.” (Marsh v. Ellsworth, 50 N. Y. 309, 312; Youmans v. Smith, 153 N. Y. 214; Laing v. Mitten, 185 Mass. 233.)

If a publication is privileged as to counsel it is privileged as to his client and the converse is true. (Youmans v. Smith, supra, at p. 219; Andrews v. Gardiner, 224 N. Y. 440, 446.)

The determination of the question of privilege is a question of law, and if it be determined that the language used was not impertinent, the privilege is absolute. (Sickles v. Kling, 60 App. Div. 515; Andrews v. Gardiner, supra, at p. 446; Byam v. Collins, 111 N. Y. 143, 150.)

It cannot reasonably be said that the words used by the appellant in the petition in the mandamus proceeding were not by any possibility pertinent or that they were so clearly impertinent and needlessly defamatory as not to admit of discussion. The petition prayed for an order of mandamus. The granting of the order rested in the sound discretion of the court. Any allegation which appellant or his counsel could possibly have believed would tend to influence the court to grant the order cannot be said to be impertinent beyond any question.

The right to an order of peremptory mandamus was not a matter of strict legal right. It might have been refused if the court felt that the violation of the law charged was unsubstantial or merely technical, that it was the result of oversight or mistake and had not resulted in any public harm.

The appellant might have believed that the court’s discretion would be more readily moved to grant the relief prayed for, if it were informed that the granting ,qf the certificate of .occupancy was the result of a corrupt agreement rather than of an innocent mistake. It is not necessary to decide that such considerations should influence the discretion' of courts. It is sufficient if the appellant, under the circumstances, believed that the language would have a tendency to move the court’s discretion to grant the relief asked.

The order of the Appellate Division and that of the Special Term should be reversed, and the relator discharged.

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

Orders reversed, etc.


author: Crane, J.

text:
    In the Matter of Joseph Hart, Respondent, against Frances Perkins, as Industrial Commissioner and Custodian of State Insurance Fund, Appellant.
    (Argued November 17, 1931;
    decided January 5, 1932.)

      John J. Bennett, Jr., Attorney-General (Irving H. Lessen of counsel), for appellant.
    Payment of the award was made in accordance with provisions of section 25 of the Workmen’s Compensation Law. (Workmen’s Comp. Law, §§ 20, 23; Adams v. Atlantic Construction Co., 198 App. Div. 430.) Mandamus will. not lie to compel a State official to perform an act which involves the exercise of his discretion. (Millard v. Chaplin, 104 N. Y. 96; Empire City Trotting Club v. State Racing Comm., 190 N. Y. 31; Cecil v. Bellevue Hospital Medical College, 60 Hun, 107; 128 N. Y. 621; Schaw v. McWilliams, 195 N. Y. 92; Rapid Transit Const. Co. v. Craven, 210 N. Y. 443; Harris v. Commissioner of Land Office, 149 N. Y. 26; Peizotto v. Board of Education, 212 N. Y. 463; Matter of Dill, 185 N. Y. 106; Dietz v. Easton, 13 Abb. Pr. [N. S.] 159; Kennedy v. Brady, 166 N. Y. 44; Burr v. Voorhis, 229 N. Y. 382; Matter of Larkin Co. v. Schwab, 242 N. Y. 330; Matter of County of Ulster v. State Dept. of Public Works, 211 App. Div. 626; 240 N. Y. 647; Lewis v. Commissioner of Education, 219 App. Div. 233; Matter of Picone v. Commissioner of Licenses, 241 N. Y. 157.)

      Don Carlos Buell for respondent.
    There was no other adequate remedy for petitioner. (Brennan v. Board of Education, 245 N. Y. 8; People ex rel. Pennell v. Treanor, 15 App. Div. 508.)
   Crane, J.

Joseph Hart, the claimant, sustained an injury on or about November 15, 1925, while employed by the Shepard Construction Company, which had secured compensation to its employees in the State Insurance Fund. Numerous hearings were had upon Hart’s claim and compensation and medical payments made on account up to March 8, 1930, when a special hearing was held at Syracuse and there decided between the parties in interest to settle all claims for the sum of $3,390, which included the sum of $500 to be paid to his attorney. The decision was filed in the office of the Department or the Bureau of the Workmen’s Compensation on March 10, 1930, and received by the State Insurance Fund on March 11, 1930. Within ten days after the filing of the decision, and on March 19, 1930, a check for the full amount was mailed to the claimant. Measuring the ten days within which awards must be paid, pursuant to section 25 of the Workmen’s Compensation Law (Cons. Laws, ch. 67), from the last day of the hearings, March 8, instead of the day when the decision was filed and notice given, the claimant has sought in this mandamus proceeding to compel the Industrial Commissioner to pay him the penalty imposed by the statute of twenty per cent of the unpaid compensation. He is not entitled to it.

The State Insurance Fund, created pursuant to article V of the Workmen’s Compensation Law, in this instance was the insurance carrier and hable for the award to be made. The fund, according to section 90, shall be administered by the Industrial Commissioner. The State Treasurer is the custodian of the State Insurance Fund, all disbursements being made by him upon vouchers signed by the Commissioner or Deputy Commissioner. The Industrial Commissioner is appointed pursuant to section 10 of the Labor Law (Cons. Laws, ch. 31), while the Industrial Board is provided for by section 12. It is the Commissioner and not the Industrial Board which administers the fund. The award in this case was made by the Industrial Board. The Commissioner could not and would not issue his voucher upon the State Treasurer until he had official notice of the award, the amount thereof and to whom payable. We look to other provisions of the Workmen’s Compensation Law for the methods by which the awards are made payable. Section 25, among other things, provides as follows: “If the employer or his insurance carrier shall fail to make payments of compensation according to the terms of the award within ten days thereafter, except in case of an appeal, there shall be imposed a penalty equal to twenty per centum of the unpaid compensation which shall accrue to the benefit of the injured workman or his dependents and shall be paid to him or them.” “ According to the terms of the award within ten days thereafter,” means an award made and completed in accordance with law. Section 20 provides for the making of the award and the appropriate filing thereof. Within thirty days after the hearing on the claim is closed the Board shall make or deny an award determining such claim for compensation and file the same in the office of the department. Immediately after such filing, the Commissioner shall send to the parties a copy of the decision. Appeals are provided for in section 23. And here again we find time running from the filing of the award and notice. “ Within thirty days after notice of the filing of the award or the decision of the board has been sent to the parties an appeal may be taken to the appellate division of the supreme court, third department, from such award or decision by any party in interest including an employer insured in the state fund.” Both section 20 and section 23 refer to the award as having been made for the purpose of reckoning time when it is filed in the office of the department and a copy of the decision has been sent to the parties, including an employer insured in the State Fund. Surely the Industrial Commissioner would not have been justified in issuing his voucher upon the State Treasurer until the award in this case had been filed in the department and notice given to the parties. The time within which to appeal runs from the day of this filing with notice and the time of payment does not precede it. The award was filed in the office of the department on March 10, 1930, and notice given to the insurance carrier on March 11, 1930. Payment made thereafter on the 19th of March, 1930, was made within the ten days required by section 25, above referred to. The application for mandamus should have been denied.

As the Industrial Commissioner administers the State Fund, and his duty, after proper notice of an award, is to draw his voucher upon the State Treasurer in payment thereof, the penalty provided by section 25 applies when he fails to make such payment within ten days. The object of this penalty is to compel this administrative officer to make payment to the workman promptly. Failure to draw the voucher within the time carries automatically a penalty of twenty per cent of the compensation awarded. The Board has no discretion in this matter, neither has the Industrial Commissioner. The penalty is imposed upon the failure of the Commissioner to act within the time allotted. Immediately after the expiration of this time twenty per cent is added to the amount of the award. Mandamus, therefore, would be the appropriate remedy to compel the performance by the Commissioner of his duty to issue his voucher for the added amount when the facts justifying it sufficiently appear. Although upon the merits in this case mandamus should have been denied, the facts justify the issuance thereof in the companion case argued herewith.

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

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

Ordered accordingly.


text:
    In the Matter of Joseph Hart, Respondent, against Frances Perkins, as Industrial Commissioner and Custodian of State Insurance Fund, Appellant.
    (Argued November 17, 1931;
    decided January 5, 1932.)

      John J. Bennett, Jr., Attorney-General (Irving H. Lessen of counsel), for appellant.
    Mandamus will not lie to compel a State official to perform an act which involves the exercise of his discretion. (Millard v. Chaplin, 104 N. Y. 96; Empire City Trotting Club v. State Racing Comm., 190 N. Y. 31; Cecil v. Bellevue Hospital Medical College, 60 Hun, 107; 128 N. Y. 621; Schaw v. McWilliams, 195 N. Y. 92; Rapid Transit Const. Co. v. Craven, 210 N. Y. 443; Harris v. Commissioner of Land Office, 149 N. Y. 26; Peizotto v. Board of Education, 212 N. Y. 463; Matter

      of Dill, 185 N. Y. 106; Dietz v. Easton, 13 Abb. Pr. [N. S.] 159; Kennedy v. Brady, 166 N. Y. 44; Burr v. Voorhis, 229 N. Y. 382; Matter of Larkin Co. v. Schwab, 242 N. Y. 330; Matter of County of Ulster v. State Dept. of Public Works, 211 App. Div. 626; 240 N. Y. 647; Lewis v. Commissioner of Education, 219 App. Div. 233; Matter of Picone v. Commissioner of Licenses, 241 N. Y. 157; People ex rel. St. Albans-Springfield Corp. v. Cornell, 257 N. Y. 73.)

      Don Carlos Buell for respondent.
    Defendant is commanded to do only a ministerial act. (Brennan v. Board of Education, 245 N. Y. 8.)
   Crane, J.

On July 16, 1928, an award was made in excess of $1,516.67, which the State Fund felt was justly due, and no appeal from that part of the award was taken. An appeal was taken from the excess. The Industrial Commissioner did not pay the undisputed sum until August 14, 1928.

On October 24, 1929, an additional award of $970 was made, the Commissioner appealing only from the excess over $570. The undisputed amount, however, was not paid until December 27, 1929.

By chapter 754 of the Laws of 1928, subdivision 6, the Workmen’s Compensation Law (Cons. Laws, ch. 67) referring to appeals was amended by the following addition to section 23: “A party against whom an award of compensation shall be made may appeal from a part of such award. In such a case the payment of such part of the award as is not appealed from shall not prejudice any rights of such party on appeal, nor be taken as an admission against him.” The Appellate Division has awarded the claimant twenty per cent penalty upon the undisputed amounts, pursuant to section 25 of the Workmen’s Compensation Law, for the reason that payments were not made within ten days after the awards were filed and notice given. The facts are undisputed and the dates of notice and payment are not questioned.

For the reasons stated in the companion case, handed down herewith, the order in this case should be affirmed, with costs.

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

Order affirmed.


author: Cardozo, Ch. J.

text:
    John A. Stirnweis, Respondent, v. Charles Cacioppo, Appellant.

      (Argued November 19, 1931;
    decided January 5, 1932.)

      John S. Russell, Richard P. Charles and Lester C. Ringe for appellant.
    Plaintiff at no time had title to that portion of the land contracted to be sold by him lying between the Drube map fine of Fresh Pond road and the fine of Fresh Pond road as legally established by the condemnation proceeding of 1911. (Kings County Fire Ins. Co. v. Stevens, 87 N. Y. 287; White’s Bank v. Nichols, 64 N. Y. 65; Mead v. Riley, 50 N. Y. Super. Ct. 20; 102 N. Y. 669; Trowbridge v. Erich, 191 N. Y. 361; Matter of City of New York, 209 N. Y. 344.) The westerly line of Fresh Pond road is the fine fixed by the condemnation proceeding in 1911 and not the Drube fine nor the fine on the alteration map. (Nichols Copper Co. v. Connolly, 208 App. Div. 667; 240 N. Y. 596.) The plaintiff could not at any time perform the terms and conditions on his part to be performed under the contract between the parties. (Dunham v. Williams, 37 N. Y. 253; Higgins v. Reynolds, 31 N. Y. 151; Scripture v. Morris, 38 App. Div. 377; 159 N. Y. 534; Nicklas v. Keller, 9 App. Div. 216.)

      Henry Rubin for respondent.
    The condemnation proceeding in 1911 did not, and could not, deprive the abutter at that time of his street frontage on Fresh Pond road. (City of Buffalo v. D., L. & W. R. R. Co., 190 N. Y. 84; Matter of Scheibel v. O’Brien, 230 N. Y. 277; Honey v. Village of Haverstraw, 124 N. Y. 273; McCabe v. City of New York, 213 N. Y. 468; Reis v. City of New York, 188 N. Y. 58; Matter of City of New York [Third Ave.], 183 App. Div. 688.) An abutter by virtue of proximity has a special right to have the street in front of his property kept open forever as such and continued as a public street, and this right constitutes property of which he cannot be deprived without compensation. (Story v. N. Y. E. R. R. Co., 90 N. Y. 122; Lahr v. Metropolitan El. R. Co., 104 N. Y. 268; Holloway v. Southmayd, 139 N. Y. 390; Donahue v. Keystone Gas Co., 181 N. Y. 313; Kane v. N. Y. E. R. R. Co., 125 N. Y. 164; Forster v. Scott, 136 N. Y. 577; Eels v. A. T. & T. Co., 143 N. Y. 133; White v. Manhattan Ry. Co., 139 N. Y. 19; Wynehamer v. People, 13 N. Y. 378; Brazell v. Seattle, 55 Wash. 180; Rogers v. Bradshaw, 20 Johns. 735.) Even though the condemnation proceeding had the effect of moving the line of Fresh Pond road to the condemnation line, plaintiff’s rights and easements over the intervening strip were the same as though the line of the road remained at the Drube line. (Story v. N. Y. E. R. R. Co., 90 N. Y. 122; Matter of Scheibel v. O’Brien, 230 N. Y. 277; White v. Manhattan Ry. Co., 139 N. Y. 19; Harrower v. Ritson, 37 Barb. 301; Lord v. Atkins, 138 N. Y. 184; Donahue v. Keystone Gas Co., 181 N. Y. 313; Lahr v. Metropolitan El. R. Co., 104 N. Y. 268; Cohen v. Mayor, 113 N. Y. 532; Peace v. McAdoo, 110 App. Div. 13; Sweet v.
      Perkins, 196 N. Y. 482; New York v. Rice, 198 N. Y. 124; Ackerman v. True, 176 N. Y. 353; Matter of Rapid Transit R. R. Commrs., 197 N. Y. 81; Reynolds v. Interborough R. T. Co., 206 N. Y. 587.) If any doubt existed as to the location of the westerly line of Fresh Pond road it was removed by the alteration map which established it at the Drube line. (Matter of City of New York [Third Ave.], 183 App. Div. 688; McCabe v. City of New York, 213 N. Y. 468; Reis v. City of New York, 188 N. Y. 58.)
   Cardozo, Ch. J.

The plaintiff agreed to sell and the defendant to buy a parcel of land in Queens county running eighty-five feet along the westerly side of Fresh Pond road. At the time fixed for closing, the buyer declined to accept a conveyance upon the ground that between the easterly side of the seller’s lot and the westerly side of Fresh Pond road there was a strip of land, varying in width from about eight to six and a half feet, the property of another. The seller brought this action for specific performance. The defendant counterclaimed for the down payment and the expenses incurred in examining the title. The trial court gave judgment in favor of the defendant. The Appellate Division reversed and awarded judgment to the plaintiff for the relief demanded in the complaint.

In 1872 the owners of a tract of land embracing the premises in suit prepared a map, known as the Drube map, and filed it in a public office, selling lots thereafter with reference thereto. Fresh Pond road was shown on this map, and became a highway by dedication, or so the record fairly indicates. Among the buyers of land in reliance on this map was Ann Morton, who owned the premises in suit till 1887. In that year she made a conveyance to one Villing, whose title by mesne conveyance became vested in the plaintiff. The deed from Morton to Villing was sufficient to convey to the grantee an easement or right of way in Fresh Pond road, the eastern boundary of the lot. It did not, however, convey the fee of the road to the center. The description in the deed was in such form that the fee of the road to the center was retained by the grantor. The land was described as beginning at the side ” of the road, and running along the road, thus excluding the fee from the subject of the grant (Kings County Fire Ins. Co. v. Stevens, 87 N. Y. 287; White’s Bank v. Nichols, 64 N. Y. 65; Matter of City of New York, 209 N. Y. 344, 351). As to this the parties are agreed. Since the fee, though it was then subject to an easement, was not conveyed to Villing, it is not owned by the plaintiff, who can have no better title than Villing could bestow.

In 1911, there was adopted by the Board of Estimate and Apportionment a final map of the borough of Queens, indicating Fresh Pond road thereon as one of the city’s streets. This map, dated October 19, 1911, was filed in the office of the Register in February, 1912. Condemnation proceedings were begun by the city in 1911 to appropriate the fee of the highway so laid out upon the map, and thereafter the proceedings went on to a decree. The lines of Fresh Pond road as thus established did not correspond exactly with those of Fresh Pond road as laid out upon the Drube map in 1872 and used by the public as a dedicated street. The road as it was appropriated by the city was pushed farther to the east, leaving an intervening space of about eight to six and a half feet wide, which had formerly belonged to Morton and had never been conveyed away. The map indicates this strip as part of an existing road, but a road which to that extent is to be closed or discontinued. The Appellate Division held that the defendant was not prejudiced by the plaintiff’s inability to transfer the title to the space so closed, for the reason that the fee of the- strip, though retained by Morton or her heirs, was subject to private easements in favor of abutting owners who had bought upon the faith that it would be kept open as a road. The naked or barren- ” fee (Reynolds v. Interborough R. T. Co., 206 N. Y. 587) of the road had been left in the grantor, but by necessary implication, resulting both from the terms of the grant and from the physical conditions, easements or rights of way had been conveyed to the grantees (Holloway v. Southmayd, 139 N. Y. 390).

We may assume, without deciding, that the existence of such easements in the intervening strip would break the force of the objection that the title to the fee was in the ownership of another. This assumption will be made, though the ownership of the fee of a public or a private road may give an abutting owner greater rights in some contingencies than would come to him from the possession of the right to pass over the surface and to have the upper spaces open (Matter of City of New York [Sedgwick Ave.], 213 N. Y. 438). The difference in value, if not negligible altogether, would in any event be so small that it could easily be adjusted by an abatement from the price. If all this be assumed in favor of the title, the difficulty is left that the plaintiff has failed to reckon with the provisions of the street closing act then in force in the city of New York and with its effect upon easements, private as well as public, belonging to abutting owners. That act, in 1911, was chapter 1096 of the Laws of 1895, which was framed in an endeavor to substitute uniformity and order in the street system of the city for the disorder and diversity prevailing in the past (Matter of Mayor [168th St.], 157 N. Y. 409). Some of the evils and complications engendered by the new act turned out to be greater than any good to be attained, and it was superseded in 1923 by a statute of that year (Laws of 1923, ch. 752). By the act of 1895, which was still unrepealed in 1911, the streets and public spaces laid out upon a final map, adopted by municipal authorities in accordance with the charter and thereafter duly filed, were thenceforth to be the only streets and public places maintained within the city. All 11 streets, avenues, roads, highways, alleys, lanes and thoroughfares ” described as discontinued, were from the time of the filing of the map to be regarded as closed. The act defines with precision the consequences of the closing. They include the extinguishment of all easements, private as well as public (Barber v. Woolf, 216 N. Y. 7), in roads so discontinued. The owner of the fee whose land is thus released, is to be free to “ enclose) use and occupy ” it to the same extent as if no easements, private or public, had ever been created. Upon the exercise of that right there is one hmitation and one only. Such parts of the discontinued thoroughfare as are included within the boundaries of any square or plot of ground made by the intersection ” of any streets or avenues laid out upon the permanent map may not be built upon or inclosed until one of the streets or avenues bounding such square or plot shall have been physically opened (Laws of 1895, ch. 1006; Matter of City of New York, 192 N. Y. 459; Matter of City of New York [Newton Avenue], 219 N. Y. 399, 406). From that time forth they may be occupied at will. On the other hand, the neighboring and abutting owners are not left' without a remedy. For any damage done to them by the destruction of their private easements compensation shall be made to them by the city in appropriate proceedings. The period of limitation for the enforcement of such a claim does not begin to run until there has been a physical, and not merely a threatened or possible, interference with the enjoyment of the easements thus declared to be extinguished (Matter of City of New York [Newton Ave.], 219 N. Y. 399, 406, 407).

The record in this case does not tell us with certainty at what time a street or avenue bounding the plaintiff’s block was physically opened. The fair inference is, however, that before the sale in suit, at least two of those streets (i. e., Elliot avenue and Fresh Pond road) and perhaps also a third (Gage place) were open for public travel. At all events, the plaintiff, seeking specific performance, has proved nothing to the contrary, and so, in the aspect of the record most favorable to himself, has left the title at least doubtful. As soon as one of these streets was physically opened, the owner of the fee of the strip between the old and the new line of Fresh Pond road became entitled to build upon it irrespective of any easements previously granted and irrespective of the effect of the obstruction upon the access to the highway available to some one else. The remedy of one so damaged is by a proceeding against the city to make good What he has lost.

We are not unmindful of the fact that in 1922 there was filed by the city a new map of the locus in quo, whereby the lines of the Fresh Pond road were re-established as they had existed before the condemnation proceedings in 1911. The filing of such a map did not avail without more to restore extinguished easements in the strip thus marked as a proposed addition to the highway system of the borough. By the hypothesis, title to the strip, free from any easements, was then in Ann Morton or in her successors in interest. It could not be taken away from them except by a new condemnation that would pass the title to the city, and make the land a street again. In such a proceeding, the sum payable by the city to Morton or her successors in order to get the strip back may be subject to an offset to the extent of the assessment for benefits that would be payable by the owners for freeing the land from the burden of the easements if the strip were to be retained.

The complications are too many to justify a holding that the title tendered by the plaintiff is marketable now.

The judgment of the Appellate Division should be reversed and that of the Special Term affirmed with costs in the Appellate Division and in this court.

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

Judgment accordingly.


text:
    James J. Walsh, Respondent, v. Charles A. Judge et al., Defendants, and Alex Kelso et al., Appellants.
    (Argued November 19, 1931;
    decided January 5, 1932.)

      Jeremiah T. Mahoney, Vincent L. Leibell and Charles Maitland Beattie for appellants.
    Plaintiff was guilty of the misconduct charged against him; therefore, he has suffered no legal damage and has no cause of action for conspiracy against the defendants, irrespective of their motives in proceeding against him. (Von Au v. Magenheimer, 126 App. Div. 257; 196 N. Y. 510; Dalury v. Rezinas, 183 App. Div. 456; 229 N. Y. 513; Carroll Building Corp. v. Greenberg P. Supplies, Inc., 216 App. Div. 268; 244 N. Y. 543; Beardsley v. Kilmer, 236 N. Y. 80; Cohen v. Fisher & Co., 135 App. Div. 238; Moon v. Flack, 74 N. H. 140; Grand Lodge v. Schuetze, 83 S. W. Rep. 231; Kellogg v. Sowerby, 190 N. Y. 370; Label v. Trade Bank of New York, 132 Misc. Rep. 643; Kehoe v. Leonard, 176 App. Div. 626; Flannery v. Van Tassel, 131 N. Y. 639; Beers v. McNaught, 175 App. Div. 643.) The findings in the reinstatement action that plaintiff had in fact been guilty of the misconduct before the district council, were conclusive against the plaintiff, and, therefore, the question should not have been left as one of fact for the jury. (Booth v. Powers, 56 N. Y. 22; Lorillard v. Clyde, 122 N. Y. 41; Schuykill Fuel Corp. v. Nieberg Realty Corp., 250 N. Y. 304; Hollenbeck v. Ætna Casualty & Surety Co., 215 App. Div. 609; Gugel v. Hiscox, 216 N. Y. 145.)

      Donald Marks, Clarence M. Lewis and W. N. Seligsberg for respondent.
    The jury’s verdict as to the existence of a conspiracy is sustained by the evidence. (Civ. Prac. Act, § 589; National Cash Register Co. v. Remington Arms Co., 242 N. Y. 99; Walsh v. Moncur, 218 App. Div. 867; Wilcox v. Royal Arcanum, 210 N. Y. 370; People v. Van Tassel, 156 N. Y. 561; Heughes v. Board of Education, 37 App. Div. 180; Finnegan v. Butler, 182 N. Y. Supp. 671; Thompson v. Grand International Brotherhood, 41 Tex. Civ. App. 176; Polin v. Kaplan, 257 N. Y. 277; McCantz v. Brotherhood of Painters, 13 S. W. Rep. [2d] 902; Mullen v. Seegers, 294 S. W. Rep. 745.) Defendants7 ^conspiracy, which brought about plaintiff’s illegal ouster. gives rise to a cause of action. (National Protective Assn. v. Cumming, 170 N. Y. 315; Auburn Draying Co. v. Wardell, 227 N. Y. 1; Exchange Bakery & Restaurant, Inc., v. Rifkin, 245 N. Y. 260; Curran v. Galen, 152 N. Y. 33; Thompson v. Grand International Brotherhood, 41 Tex. Civ. App. 176; Grand International Brotherhood v. Green, 210 Ala. 496; Campbell v. Johnson, 167 Fed. Rep. 102; McCantz v. Brotherhood of Painters, 13 S. W. Rep. [2d] 902; Mullen v. Seegers, 294 S. W. Rep. 745; Otto v. Tailors’ Union, 75 Cal. 308; Connell v. Stalker, 21 Misc. Rep. 609; Peekskill Theatre, Inc., v. Advance Theatrical Co., 206 App. Div. 138; Grassi Contracting Co. v. Bennett, 174 App. Div. 244; Burgess v. Stewart, 112 Misc. Rep. 347; 194 App. Div. 913; Grand Shoe Co. v. Children’s Shoe Workers’ Union, 187 N. Y. Supp. 886; Sultan v. Star Co., 106 Misc. Rep. 43; Newton Co. v. Erickson, 126 N. Y. Supp. 949; 144 App. Div. 939.) The question of plaintiff’s guilt was not a material issue in the reinstatement action; hence the findings are not conclusive in this action. (Stokes v. Foote, 172 N. Y. 327; House v. Lockwood, 137 N. Y. 259.)
   O’Brien, J.

Plaintiff was president of a local branch in New York city of the United Brotherhood of Carpenters and Joiners of America. On January 16, 1925, charges were preferred against him by defendant Kelso that, on November '26, 1924, at a meeting of the district council of the brotherhood, he acted in a boisterous manner, refused to come to order, refused to retire when requested, used profane and indecent language, insulted the officers and members of the council and obstructed the business of the organization to such an extent that the chairman was obliged to summon an officer of the law before plaintiff would retire. He attended and took part in the trial of these charges before a committee of the district council, which found him guilty and recommended a fine of $100. It was imposed by the council but plaintiff failed to pay and he was dropped from his union. He brought an action for reinstatement and in that action the court incidentally found that the charges were true but the essential conclusion of law was that the district council was without jurisdiction to try them. Plaintiff was reinstated.

The supplemental complaint in the present action alleges that defendants, some of whom are members of the local and others members of the district council, maliciously conspired in October, November and December, 1924, to cause plaintiff to be expelled from membership in the national brotherhood and to lose his position as president of the local. After this action was begun, new charges were preferred against him and for a second time he was expelled. He is no longer a member. In this supplemental complaint are alleged facts relating to the second expulsion but the action is for damages growing out of the former one. In his brief, plaintiff argues that, the illegality of the first expulsion having been established, no issue remains except the question whether that expulsion was accomplished as the result of a conspiracy among defendants. He urges that his guilt or innocence of the charges which ended in the first ouster is immaterial.

On the trial of the present action the evidence relating to the truth of the charges was conflicting. There was testimony that at the meeting on November 24, 1924, plaintiff was drunk and disorderly; there was also directly contrary testimony. The court charged that the jury might “ consider whether or not the charges on which the plaintiff was tried before the district council were well founded or unfounded, and if unfounded, whether they were known by the defendants to be unfounded. Did the defendants, in other words, prefer these charges against the plaintiff knowing them to be false, or believing them to be true? Did they institute those charges before the district council knowing that body not to have jurisdiction, or believing that it did? ” Defendants excepted to the court’s refusal to charge that if the jury find that Walsh was guilty of the matters with which he was charged in the district council proceedings in November, 1924, their verdict must be for defendant.” The effect of this part of the main charge, as quoted, and other parts, which preceded it, is an instruction that, if the charges were well founded" but if defendants through honest error instituted them before a body which was jurisdictionally defective, they were not guilty of conspiracy; if on the other hand they rested upon no basis and defendants in fact believed them to be unsupported, then the expulsion was improper and the combination among defendants to effect this unlawful result constitutes conspiracy.

The fundamental question is whether in fact the charges were true. If they were based on fact, defendants’ combination to dislodge from the union any member who behaved in the manner in which plaintiff is asserted to have comported himself does not merge into an unlawful act and the members of such a combination cannot be held as participants in a conspiracy. Assume that malice toward plaintiff was one of the moving causes which induced them to perform a duty to their organization and that their realization that the infliction of a penalty fell upon one whom they viewed with animosity tended to impart a keener relish to their rightful deed. Surely, the authority to expel for deportment such as intoxication and the use of profane and obscene language at a meeting of the district council existed and the exertion of that power, even when proceeding from mixed motives, does not render it unlawful. (Beardsley v. Kilmer, 236 N. Y. 80.) If plaintiff did in fact offend the elementary rules of decency in the particulars which .-are specified, few would dispute the proposition that the forfeiture was not so excessive as to require an inference that it was inflicted from motives of undiluted malice. That part of the charge which has been quoted does not quite sufficiently approach the definite and the specific and may be held to include an instruction slightly extraneous to the issue. Reference to defendants’ belief or their knowledge or their ignorance in relation to the jurisdiction of the district council may have confused the jury. Defendants’ state of mind concerning jurisdiction is scarcely a practical issue in the case. If conspirators maliciously combine to eject a fellow-member from their union, one cannot conceive that they would consciously select an agency which possessed no power to effect their purpose. So, after all, the issue of fact is narrowed to the question whether the charges were true. If they were untrue, defendants, who are shown to have been animated in a considerable degree by malice, did not perform a lawful act in expelling or attempting to expel a blameless member, and an honest belief would not save their combination from the brand of conspiracy. When people are inspired by malice, they must be sure that their adversary is wrong. We think reversible error was committed in refusing to instruct that if plaintiff was guilty of the charges, the verdict must be for defendants.

The judgments should be reversed and a new trial granted with costs to abide the event.

Cakdozo, Ch. J., Pound, Crane and Kellogg, JJ., concur; Lehman and Eubbs, JJ., dissent.

Judgments reversed, etc.


text:
    In the Matter of the Claim of Vincent Magna, Respondent, against Hegeman Harris Company et al., Appellants. The State Industrial Board, Respondent.
    (Argued November 17, 1931;
    decided January 5, 1932.)

      William B. Davis and E. C. Sherwood for appellants.
    There is no proof that the claimant was totally disabled to August 15, 1928. (Matter of Carroll v. Knickerbocker

      Ice Co., 218 N. Y. 435; Matter of Belcher v. Carthage Machine Co., 224 N. Y. 326; Dunn v. Brooklyn R. T. Co., 197 App. Div. 748.)

      John J. Bennett, Jr., Attorney-General (Joseph A. McLaughlin of counsel), for respondents.
    There is ample evidence to justify the award. (Royal Indemnity Co. v. Heller, 256 N. Y. 322.)
   Cardozo, Ch. J.

The question in this case is solely as to the period of time during which disability continued.

A physician called by the carrier testified that on May 3, 1928, the claimant had fully recovered, and was then able to go to work.

In opposition to this the claimant produced a verified report by another physician that he had been examined on July 30, 1928, and would not be able to resume work till August 15.

The carrier demanded an opportunity to cross-examine this physician, the signer of the report. It served a subpoena, which the physician ignored, and upon proof of his default, served a second subpoena, which was ignored like the first.

Thereupon the Board declared the proceeding at an end, and made an award for the claimant fixing the term of disability as it had been stated in the report, and disregarding the testimony of the carrier’s physician to the contrary.

Workmen’s Compensation Law (Cons. Laws, ch. 67), section 21, as amended by Laws of 1923, chapter 568, provides as follows:

“ Presumptions. In any proceeding for the enforcement of a claim for compensation under this chapter, it shall be presumed in the absence of substantial evidence to the contrary

1. That the claim comes within the provision of this chapter;

2. That sufficient notice thereof was given;

“ 3. That the injury was not occasioned by the willful intention of the injured employee to bring about the injury or death of himself or of another;

4. That the injury did not result solely from the intoxication of the injured employee while on duty;

“ 5. That the contents of verified medical and surgical reports introduced in evidence by claimants for compensation shall constitute prima facie evidence of fact as to the matter contained therein.”

By the opening words of the section, the presumption thereby created as to the contents of a medical report exists only “ in the absence of substantial evidence to the contrary.” Here there was such evidence. The presumption, therefore, failed, and the burden of establishing the extent of the disability fell back upon the claimant.

The purpose of the statute is easily perceived. Not infrequently the carrier does not wish to contest the extent or nature of the injuries. In such circumstances, the claimant is permitted to make out his case in the first instance by a verified report. If, however, the carrier disputes the injury and produces substantial evidence that the report is wrong, the case ceases to be one for presumptions, and becomes a case for proof.

The injustice likely to result from a different reading of the statute has illustration in the case at hand. The physician v/ho testified for the carrier appeared before the Board, and was subject to cross-examination. Nothing in his testimony is suspicious or improbable. None the less, his statement that the claimant had made a complete recovery by May 3, 1928, was rejected by the Board in favor of the ex parte statement of a physician retained by the claimant to the effect that the disability would continue into August. Why the prediction in the report was deemed to be more credible than the testimony upon the stand, the record does not tell us. In view of the fact that it came from a physician who refused tp attend and confirm what he reported, its acceptance was an arbitrary extension of the limited presumption created by the statute.

The order of the Appellate Division and the award of the State Industrial Board should be reversed, and a rehearing granted with costs against the Board to abide the event.

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

Ordered accordingly.


text:
    The People of the State of New York, Respondent, v. James Sangamino, Appellant.

      (Argued November 23, 1931;
    decided January 5, 1932.)

      Jacob Shientag for appellant.
    The court erred in the charge to the jury in limiting motive in a criminal case solely to the question of intent. (Commonwealth v. Raymond, 97 Mass. 507; People v. Seppi, 221 N. Y. 62; People v. Wallach, 217 App. Div. 527; People v. Dinser, 192 N. Y. 80; People v. Shilitano, 218 N. Y. 161.)

      William F. X. Geoghan, District Attorney (Henry J. Walsh of counsel), for respondent.
    No error was committed in the trial. (People v. Dinser, 192 N. Y. 80; People v. Sanducci, 195 N. Y. 361.)
   Hubbs, J.

The defendant has been convicted of murder in the first degree for firing with a revolver a shot which caused the death of John Riggio. The homicide took place in an automobile. At the trial a witness who was an occupant of the automobile testified that the defendant fired the shot which caused Riggio’s death. Although the defendant did not testify in his own behalf, he called witnesses in an attempt to establish an alibi. The jury believed the testimony of the witness who testified that the defendant fired the fatal shot and refused to believe the testimony of the witnesses, called by the defendant, who testified that he was elsewhere at the time of the shooting. A clear question of fact was presented and the jury was justified in finding beyond a reasonable doubt that the defendant committed the murder with deliberation and premeditation. We have carefully examined the record and are satisfied that the defendant had a fair trial and that no errors were committed which require the granting of a new trial.

Certain statements made by the learned trial judge during the trial indicate that there existed some confusion in his mind in regard to the proper charge upon the question of motive. The same condition has been observed in other criminal cases which have come before this court. There seems to exist to some extent an understanding that a trial court is not required to charge that motive or lack of motive may be considered by a jury in a first or second degree murder case, unless it is in connection with the question of intent, when that is an issue in the case. The opinion in People v. Dinser (192 N. Y. 80, 84) is cited as authority for such proposition. The statements contained in that opinion were made with reference to the undisputed fact that the defendant struck the deceased a blow. The question for the determination of the jury was whether the blow was delivered with murderous intent or in the heat of passion without intent to inflict serious injury. The defendant’s counsel requested the court to charge “ that it is proper for the jury to consider, in connection with the guilt or innocence of the defendant in this case, what motive he may have had, if any, to kill the deceased.” That request was refused and this court decided that the refusal to charge constituted error which required the reversal of the judgment. In the opinion it was said: It is true that motive is not an essential ingredient of the crimes of murder in the first and second degrees. Murder in either of these degrees may be committed without a motive, but never without intent. And, as bearing upon the question of intent, motive or absence of motive may present considerations of the utmost importance. Murderous intent may be inferred from motive clearly established, and conversely, absence of motive, even if not conclusive, may be considered as pertinent to the question of intent where that is in issue.” The writer, having in mind the issue in that case, was discussing the question of motive in reference to that issue, but undoubtedly did not intend to infer that the question of motive or lack of motive was not a proper element to be considered by a jury upon the question of the guilt or innocence of a defendant in other cases where other elements were involved.

While it is true that motive is not an essential ingredient of the crimes of murder in the first and second degrees,” and that either crime may be committed without a motive, nevertheless, the question of motive or lack of motive is always a question for the serious consideration of a jury, in determining the guilt or innocence of the defendant. It is the duty of a trial judge to instruct the jury to the effect that in its deliberations upon the question of the defendant’s guilt or innocence it may consider the question of the defendant’s motive or lack of motive to commit the crime charged. (People v. Sanducci, 195 N. Y. 361, 370; People v. Seppi, 221 N. Y. 62, 70; People v. Guadagnino, 233 N. Y. 344, 348; People v. Wallach, 217 App. Div. 527.)

Throughout the trial the question of the defendant’s apparent lack of a motive to commit the murder was called to the attention of the jury and the court in the charge stated to the jury that it was proper for it to consider what motive, if any, the defendant may have had to kill the deceased. Taken as a whole the charge must have been understood by the members of the jury as informing them that in determining the guilt or innocence of the defendant they could consider the question of the defendant’s motive or lack of motive to commit the crime charged.

It is true that there is a certain statement in the charge which standing alone might be understood as confining the jury, in its consideration of the question of motive, to its bearing upon the question of intent. We are satisfied, however, that under the facts in this case, it could not possibly have influenced the jury to the defendant’s injury.

In obedience to the statute, which commands that judgment must be given without regard to technical errors (Code of Criminal Procedure, § 542) we have reached the conclusion that the substantial rights of the defendant have been protected, and that the judgment of conviction should be affirmed.

Cardozo, Ch. J., Pound, Crane, Kellogg and O’Brien, JJ., concur; Lehman, J., dissents on the ground that the evidence is not so conclusive as to justify the court in disregarding error.

Judgment of conviction affirmed.