text:
    City of Buffalo, Appellant, v. Roadway Transit Company et al., Respondents.
    Argued December 3, 1951;
    decided January 24, 1952.

      Fred C. Maloney, Corporation Counsel (Herbert B. Forbes of counsel), for appellant.
    I. The use of the premises by defendant transit company as a truck terminal is not equivalent to a public garage. II. The use of the premises is governed by the zoning law in effect on October 10, 1946. III. The use of the premises is inherently and necessarily noxious and offensive. IV. The present use of the premises constitutes a “ freight terminal ” within the meaning of the zoning ordinances. (Lyman-Richey Sand & Gravel Co. v. Nebraska, 123 Neb. 674.) V. Defendants have no right under the zoning ordinances to use the premises or any part thereof for a freight terminal or for any other industrial use. VI. Even if the zoning ordinances of 1926 are not applicable herein, the use by defendants is in violation of the ordinances in effect when their use commenced. VII. Assuming that the prior use of the premises was a nonconforming first industrial use, defendants may not substitute therefor a different or extended nonconforming use. (Goodrich v. Selligman, 298 Ky. 863; Cole v. City of Battle Creek, 298 Mich. 98; Piccolo v. West Haven, 120 Conn. 449; Westchester Co. S. P. C. A. v. Mengel, 266 App. Div. 151, 292 N. Y. 121; People ex rel. Wood v. Lacombe, 99 N. Y. 43; President & Trustees of Vil. of Ossining v. Meredith, 190 Misc. 142, 275 App. Div. 850.) VIII. Issuance of a use permit by the director of buildings gave defendants no vested rights where the permit was issued in violation of the zoning ordinances. (Marcus v. Village of Mamaroneck, 283 N. Y. 325; Rollins v. Armstrong, 226 App. Div. 687, 251 N. Y. 349; Matter of S. B. Garage Corp. v. Murdock, 185 Misc. 55; People ex rel. Copcutt v. Board of Health, 140 N. Y. 1.)

      James R. Ulsh for Roadway Transit Company, respondent.
    I. The use of the premises in question by Roadway Transit Company is that of a public garage. II. The established use of the premises prior to the enactment of the zoning ordinance in 1926 and thereafter makes permissible use thereof as a nonconforming industrial use. (Matter of 440 E. 102nd St. Corp. v. Murdock, 285 N. Y. 298; Matter of Monument Garage Corp. v. Levy, 266 N. Y. 339; City of Albany v. Anthony, 262 App. Div. 401; People ex rel. Ortenberg v. Bales, 224 App. Div. 87, 250 N. Y. 598; City of Olean v. Conkling, 157 Misc. 63; Sweet v. Campbell, 282 N. Y. 146.) III. The certificate of use and occupancy issued by the director of buildings constitutes an administrative determination of the application of the zoning ordinance and should be followed as a reasonable interpretation thereof. (Matter of Washington St. Asylum & Park R. R. Co., 115 N. Y. 442; Louisville & N. R. Co. v. U. S., 282 U. S. 740; United States v. Alabama Railroad Co., 142 U. S. 615.) IV. The use of the premises is not a noxious or offensive use within the meaning of the ordinance. (Bove v. Donner-Hanna Coke Corp., 142 Misc. 329; Haber v. Paramount Ice Corp., 239 App. Div. 324; People v. Brooklyn & Queens Tr. Corp., 258 App. Div. 753; People v. Cooper, 200 App. Div. 413; People v. Transit Development Co., 131 App. Div. 174; Ruggiero v. Lockstrip Mfg. Corp., 254 App. Div. 783.) V. Enforcement of the zoning ordinance against the transit company in the manner sought by the city would deprive defendant of its property without due process of law. (Arverne Bay Constr. Co. v. Thatcher, 278 N. Y. 222; Matter of Eaton v. Sweeny, 257 N. Y. 176; Cordts
      v. Hutton Co., 146 Misc. 10, 266 N. Y. 399; Dowsey v. Village of Kensington, 257 N. Y. 221.)

      Louis W. Manchester for Alfred B. Dexter, respondent.
    I. The use of the premises by these defendants is that of a public garage as defined in the zoning law. II. Defendants had the right under the zoning ordinance to any use of the premises listed in the category of first industrial uses of the ordinance. (Matter of 440 E. 102nd St. Corp. v. Murdock, 285 N. Y. 298; Matter of Multiplex Garages v. Walsh, 241 N. Y. 527; People ex rel. Ortenberg v. Bales, 224 App. Div. 87, 250 N. Y. 598; Matter of Monument Garage Corp. v. Levy, 266 N. Y. 339; People ex rel. Sheldon v. Board of Appeals, 234 N. Y. 484; Clason v. Baldwin, 129 N. Y. 183; Matter of Wheelock, 51 Hun 640, 121 N. Y. 664.) III. The construction of the zoning ordinance by the director of buildings of the city of Buffalo is entitled to great weight. (Effell Realty Corp. v. City of New York, 165 Misc. 176, 256 App. Div. 972, 282 N. Y. 541; Matter of Gordon v. Board of Appeals, 131 Misc. 346.) IV. This respondent, as purchaser and owner 'of an industrial property, should have available precise and definite information as to his rights and liabilities. (People v. Perkins, 282 N. Y. 329; Arverne Bay Constr. Co. v. Thatcher, 278 N. Y. 222; People ex rel. St. Albans-Springfield Corp. v. Connell, 257 N. Y. 73; Matter of Eaton v. Sweeny, 257 N. Y. 176; Vangellow v. Rochester, 71 N. Y. S. 2d 672; Dowsey v. Village of Kensington, 257 N. Y. 221; Nectow v. Cambridge, 227 U. S. 183.)
   Froessel, J.

The City of Buffalo seeks to restrain defendants from using certain premises in alleged violation of the zoning ordinances (Ordinances of the City of Buffalo, ch. LXX).

The premises in question are leased by defendant Roadway Transit Company (hereinafter called Roadway) from defendant Dexter. The lease permits Roadway to use the said premises hereby let and for the term of this lease for a truck terminal, a private garage for the storage and repair of its trucks and other motor vehicles used in its business, and other activities in connection with its trucking business ”. The parties also provided that the lessor — and, after the third year, the lessee — might elect to terminate the lease, “ In the event that the lessee or the lessor is enjoined from using the said premises in the operation of the business of the lessee, as hereinabove defined,” and the lessee shall save the lessor harmless from all liability for damages. A revocable permit was obtained from the director of buildings to use the building for “ Garage & Truck Terminal ”, subject to all conditions of the Zoning Ordinances ”.

The property is located in a residential section. With other parcels not here involved it forms a commercial island in the center of a block otherwise devoted to residence uses, and is connected with West Utica Street by a driveway. The building is a large, one-story brick structure, 101 by 232 feet in area. When Roadway went into possession in November, 1946, it caused some remodeling to be done, including the installation of a loading dock or platform 40 by 95 feet at the east end of the building.

Roadway is engaged in interstate shipping as a motor carrier, its premises being used as a terminal for freight shipped into or out of Buffalo. At this building, shipments from out of State are broken down for delivery within the city. Outgoing freight is also brought in from other cities in trucks other than those belonging to Roadway, and more loading is done within the building than over the dock. No other use is made of the building, except that goods are stored there for periods not exceeding twenty-four hours, and routine maintenance, consisting only of oiling and greasing, is done on the tractors. These operations are carried on twenty-four hours a day.

The company operates about 12 gasoline-powered tractor and trailer units weighing over 6 tons unladen, and as much as 30,000 pounds when loaded. In addition, diesel-powered tractors are hired. The tractor and trailer combination is about 43 feet in length. Additional short wheel-base trucks are also operated. Four shifts of personnel, in addition to the drivers on the Buffalo payroll, are utilized in around the clock operation, the total number of employees in a week being about 71. The greatest number of men on the dock at one time worked during the afternoon shift, when at least 14 are needed. Sleeping arrangements are provided for 9 cross-country drivers.

Each day about 12 Roadway trailers arrive and depart from the premises, and about twice that many tractors. In addition, about 2 hired trailers arrive and depart each day, and freight is delivered for shipment by other carriers in their own trucks and trailers. The building accommodates about 16 trailers, and 10 are usually there at one time. The dock accommodates 9 trailers and the presence of that many is a daily occurrence.

Under the provisions of the present zoning ordinances, pursuant to the amendment effective August 5, 1946, the premises are in a second residence district, and the use above outlined is clearly nonconforming. Defendants have sought to justify it as a continuation or lawful change of a prior nonconforming use, and, although unsuccessful in the trial court, have prevailed in the Appellate Division.

The original ordinances of 1926 placed these premises in a business district. Prior to and at that time they were being used as a public garage, with the exception of a plot connecting the building with West Utica Street and then used for a two-family residence, but which was demolished in 1935. For present purposes, that plot need not be differentiated from the garage building. The use as a public garage was continued until the time of the afore-mentioned lease to Roadway, except for a time, not now material, during the war years, when secret materials were stored there, under guard, for “ the government.”

Under the original 1926 enactment (ch. LXX, § 17, subd. A, par. [5]; § 18, subd. A, par. [1]), and the amendments thereto in 1930, a public garage was a permitted use only in a first industrial district, but it was also provided that such use might lie allowed in a business district by special permission of the board of appeals, upon certain conditions. The owners of the property in suit never availed themselves of the provisions for such special permission, but continued to operate the garage as a matter of right, as a continuance of a use lawful prior to the adoption of the zoning ordinance-, as permitted by section 23 of chapter LXX. The Official Referee and the Appellate Division erroneously found the use as a public garage to be a conforming use in a business district. As we construe the ordinance, that use was a lawful nonconforming use of the first industrial classification in the absence of lawful special permission required for conformance in a business district. It antedated the passage of the zoning ordinances. Since this is a question of statutory construction, we are not bound by the finding below.

The city argued — and the Official Referee found — that the present use is not a continuation of the former use, nor the equivalent thereof, but is that of a freight terminal, while the Appellate Division adopted defendants’ contention that the use as a truck terminal is the equivalent of public garage. The 1926 definition of the term “ public garage ”, which has not been substantially varied since, was contained in subdivision 25 of section 34 of chapter LXX, as follows: “a use or building or portion of a building other than a private garage, but not including exhibition or show rooms for the storage of new" vehicles for sale, its purposes being in general a place for the storage, rental or sale of used vehicles and a place devoid of major facilities such as mechanical or other power for commercial repair work.” It is apparent that the activities above described resemble neither the ordinance definition nor the common concept of a public garage. On the contrary, it seems plain to us that the business conducted by Roadway clearly falls within the term “ freight terminal ” as used in paragraph (7) of subdivision A, section 18 of chapter LXX, the same being a permitted use in a first industrial district.

Defendants concede that the words “freight terminal” as used in the ordinances apply to either railroad or waterway freight terminals, but urge that they cannot be applied to motor truck freight terminals, because these were not within the contemplation of the framers of the ordinance in the year 1925. But a motor freight terminal is not essentially different from any other freight terminal, as the evidence here shows. What was confined to an industrial district in the original ordinances was the operation of handling freight at a terminal point; it can make no difference what is the mode of transporting the freight to that point. Broad, general language was used, and it must be assumed that there was a purpose in such use. It is well settled that a legislative body need not act anew each time scientific progress introduces some incidental variation into a situation already covered by general language in the statutes (Hudson Riv. Tel. Co. v. Watervliet Turnpike & Ry. Co., 135 N. Y. 393, 403-404). In that case, where it was contended that the use of electric power to run trolleys was not included in a statutory franchise, we said: “ The words of the statute are to be interpreted according to their natural and obvious meaning, and, as the terms employed are not ambiguous, extrinsic facts are not available to restrict the authority which it plainly confers. The language, literally construed, includes undiscovered, as well as existing modes of operation. * * * It would be an unjust reflection upon the wisdom and intelligence of the law-making body to assume that they intended to confine the scope of their legislation to the present, and to exclude all consideration for the developments of the future.” More recently, and in Matter of Di Brizzi (Proskauer) (303 N. Y. 206, 214), we held to the same effect: “ The Legislature, in enacting the statute, however, utilized general terms, and did not, either expressly or by implication, limit its operation to a time of war. We may not do so now.”

As the ordinance provides that a use specified in any industrial district is not permitted in a business district (§ 17, subd. A, par. [6]), defendants cannot successfully maintain that they have changed to a more restrictive, or business, use, but must rely upon the claimed right to change the nonconforming use to one of an equal, industrial classification. Subdivision A of section 23 of the original ordinance contained the following language: “ A non-conforming use shall not be changed except to a more restrictive use.” The 1930 amendment substituted therefor the following: “ A premises, building or structure arranged, designed or devoted to a non-conforming use, may be changed in use, when changed to a more restricted use ”. Section 23 also provides: A use shall be deemed to be changed to a more restrictive use if the new use be one that is permitted in a section of this chapter with a lower number than the section under which the former use was permitted.”

It is defendants’ contention that the amendment of 1930 must be read strictly in their favor, and that since such amendment does not expressly prohibit any change, they have the right to change the use to one of an equal grade. Reliance is placed chiefly on Matter of 440 E. 102nd St. Corp. v. Murdock (285 N. Y. 298). That case, however, is not in point, since there the resolution expressly provided for change to an equal nonconforming use (see pp. 306-307). It is true that zoning statutes are to he strictly construed in favor of the landowner (Matter of Monument Garage Corp. v. Levy, 266 N. Y. 339), but it is likewise true that we may not disregard the intention of the Legislature when it is clearly to be found in the language used (id., p. 344; Westchester County S. P. C. A. v. Mengel, 292 N. Y. 121, 126). Giving the language of the ordinances its plain and obvious meaning, we fail to perceive the distinction urged by defendants between the original and the present wording. As we read the amendment of 1930, it retains the same prohibition against change to any but a more restrictive use, for it is clearly stated that a change in use is permitted “ when changed to a more restricted use ”, and not otherwise. That language plainly imposes a condition on the permissive right to change the nonconforming use, in harmony with the basic purpose of zoning laws, to bring about ultimate conformity in the various use districts. Since the present use is not more restrictive than the former nonconforming use, it is illegal and may be enjoined. The Legislature could never have intended that a public garage could thus be converted into a freight terminal, a railroad yard or a crematory, all of which are placed in the same classification (§ 18, subd. A, par. [7]).

Especially is this true when we contemplate the result if defendants are allowed to continue with the present use. This neighborhood has an established residential character, despite the presence for a number of years of the garage and the other nonconforming parcels in the center of the block. This was recognized by the 1946 amendment, rezoning this area from business to second residential. But the use to which defendants have now put this property is such that it cannot fail to “alter the essential character of an otherwise residential neighborhood ” (Matter of Taxpayers’ Assn. v. Board of Appeals, 301 N. Y. 215, 219) and to render it not merely commercial, but industrial, in nature. Neither the home nor the shop, permitted in the business district, will long survive in close proximity to Roadway’s terminal, for precisely the same reasons that would obtain in the case of a rail or water terminal.

In summary, then, the premises (except the 28 by 98 foot plot connecting the garage with West Utica Street) having been used as a public garage when the zoning ordinances were first adopted, their use as such thereafter was lawful though not conforming. No permission ever having been sought to make it conforming, its status remains unchanged. When in 1946 defendants leased it for a freight truck terminal as well as a garage, as admitted in their answers, its use as such violated the ordinance. Converting it from a public garage to a freight terminal was not authorized, since both are in the first industrial classification. A nonconforming use may only be changed to a more restrictive use, not to an equally restrictive one.

The issuance of a permit by the director of buildings cannot help defendants, for such a permit cannot confer rights in contravention of the zoning laws (Marcus v. Village of Mamaroneck, 283 N. Y. 325, 330; see, also, Matter of 440 E. 102nd St. Corp. v. Murdock, supra, p. 305). Moreover, the ordinance expressly provides that “ any permit issued for * * * the use of any premises contrary to the provisions of this ordinance shall he void ” (ch. LXX, § 26, subd. A; emphasis supplied). Finally, the permit was issued for a “ Garage & Truck Terminal ”, not for a freight terminal.

The alleged unconstitutionality of the ordinances rests upon the claim that the city means to limit use of the property to second residential purposes, despite the prior use and the impossibility of adapting the building to residential use. Suffice it to say that the record discloses no such intent or threat on the part of plaintiff.

In the view taken herein, it is unnecessary to consider defendants’ contention that the present use is a business use falling within the general language of paragraph 6 of subdivision A of section 17 of chapter LXX, permitting any business use not specified in an industrial district and not ‘ ‘ noxious or offensive by reason of dust, odor, smoke, gas, fumes, noise or vibration.” Neither is it necessary to decide whether the weight of the evidence lies with the trial court’s finding that the current use is offensive within the meaning of that subdivision, or with the Appellate Division’s finding that it is not inherently so.

The judgment of the Appellate Division should be reversed and that of the Supreme Court affirmed, with costs in this court and in the Appellate Division.

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

Judgment accordingly.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    The People of the State of New York ex rel. Henry Hirschberg, Petitioner, on Behalf of John W. Delaney, Relator, Appellant, against John F. McNeill, as Superintendent of Matteawan State Hospital, Respondent.
    Argued January 14, 1952;
    decided January 25, 1952.

      Henry Hirschberg and Ernest M. Levinson for appellant.
    The order of Special Term denying the right of an inmate of Matteawan State Hospital to private consultation with counsel violated rights guaranteed by both State and Federal Constitutions. (People v. McLaughlin, 291 N. Y. 480; Powell v. Alabama, 287 U. S. 45; Moore v. Dempsey, 261 U. S. 86; Avery v. Alabama, 308 U. S. 444; People ex rel. Mayor of City of N. Y. v. Nichols, 79 N. Y. 582; People ex rel. McDonald v. Keeler, 99 N. Y. 463; People ex rel. Campbell v. Hannan, 56 Hun 469, 125 N. Y. 691; Wynehamer v. People, 13 N. Y. 378; People v. Hull, 251 App. Div. 40; People v. Gordon, 262 App. Div. 534; Freeman v. People, 4 Denio 9; People ex rel. Peabody v. Chanler, 133 App. Div. 159.)

      Nathaniel L. Goldstein, Attorney-General (Raymond B. Madden, Wendell P. Brown and Herman N. Harcourt of counsel), for respondent.
    The Commissioner of Correction may lawfully establish and cause the enforcement of rules and regulations for the government and supervision of Matteawan State Hospital and the inmates thereof. (Matter of Hughes v. Cashin, 184 Misc. 757; Matter of Thaw, 158 App. Div. 571.)
   Per Curiam.

Subdivision 4 of section 588 of the Civil Prac-

tice Act authorizes an appeal directly to this court from appropriate judgments or orders “ where the only question involved on the appeal is the validity of a statutory provision of the state or of the United States under the constitution of the state or of the United States ”. The validity of no statutory provision of the State or of the United States is here involved. The rule only of the hospital is questioned. Such a rule is not a statute within the meaning of the State Constitution (cf. F. T. B. Realty Corp. v. Goodman, 300 N. Y. 140, 144, 145).

The appeal should be dismissed, without costs.

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

Appeal dismissed.


author: Conway, J.

text:
    Diana F. Langerman et al., by Lenore Langerman, Their Guardian ad Litem, Appellants, v. Nathaniel Langerman, Respondent.
    Argued January 9, 1952;
    decided March 13, 1952.

      Joseph K. Reichbart and Martin Rosen for appellants.
    I. The Nevada decree embodying a New York separation agreement which provides for support and maintenance of the infants is not binding upon them in an action for additional support and maintenance. (Urquhart v. Urquhart, 272 App. Div. 60, 297 N. Y. 689; Matter of Lindgren, 293 N. Y. 18; Matter of Karchner v. Kane, 275 App. Div. 715; Mallina v. Mallina, 167 Misc. 343.) II. The Supreme Court of the State of New York has power in equity to compel a father to support his natural child apart from statute. (Wellesley v. Beaufort, 2 Russ. 23, 38 Eng. Reprint 244; Butler v. Freeman, 3 Atk. 58; Stocken v. Stocken, 4 Myl. & Cr. 95; Mencher v. Young, 2 Myl. & K. 490; Ransome v. Burgess, L. R. 3 Eq. 773; Simonds v. Simonds, 154 F. 2d 326; Schneider v. Schneider, 141 F. 2d 542; Parker v. Parker, 335 Ill. App. 293; Paxton v. Paxton, 150 Cal. 667; Upchurch v. Upchurch, 196 Ark. 324; Campbell v. Campbell, 200 S. C. 67; Daugherty v. Englar, 112 Kan. 583; McClaugherty v. McClaugherty, 180 Va. 51; Green v. Green, 210 N. C. 147; Furman v. Van Sise, 56 N. Y. 435; Laumeier v. Laumeier, 237 N. Y. 357; Finlay v. Finlay, 240 N. Y. 429; Sandfort v. Sandfort, 278 App. Div. 331.) III. The cause of action to compel a father to support his children vests in the children, who may sue by their mother as guardian ad litem. (De Brauwere v. De Brauwere, 203 N. Y. 460; Sandfort v. Sandfort, 278 App. Div. 331; Schneider v. Schneider, 141 F. 2d 542; Finlay v. Finlay, 240 N. Y. 429.) IV. The New York Supreme Court is a court of original and unlimited jurisdiction and must, under the State Constitution, have jurisdiction to grant the relief herein. (People ex rel. Swift v. Luce, 204 N. Y. 478; Decker v. Canzoneri, 256 App. Div. 68; De Hart v. Hatch, 3 Hun 375; Mussen v. Ausable Granite Works, 63 Hun 367.)

      David L. Schreiber and Morris Buchter for respondent.
    I. The Nevada decree is in every sense binding upon the infants as well as upon their mother with respect to the question of their support. (Lynn v. Lynn, 302 N. Y. 193; Yarborough v. Yarborough, 290 U. S. 202; Esenwein v. Commonwealth, 325 U. S. 279; Weintraub v. Weintraub, 302 N. Y. 104; Finlay v. Finlay, 240 N. Y. 429; Ansorge v. Armour, 267 N. Y. 492.) II. The complaint was properly dismissed for want of jurisdiotion. (Barber v. Barber, 21 How. [U. S.] 582; Matter of Bedrick v. Bedrick, 151 Misc. 4, 241 App. Div. 807; Moen v. Thompson, 186 Misc. 647; Matter of Herbert v. Herbert, 198 Misc. 103; Worthington v. Worthington, 212 Mo. App. 216; Rawlings v. Rawlings, 121 Miss. 140; Sikes v. Sikes, 158 Ga. 406; Erkenbrach v. Erkenbrach, 96 N. Y. 456; Griffin v. Griffin, 47 N. Y. 134; Ramsden v. Ramsden, 91 N. Y. 281; Johnson v. Johnson, 206 N. Y. 561.) III. Infants have no cause of action against their father for support. (Yarborough v. Yarborough, 290 U. S. 202; Farah v. Farah, 196 Misc. 460, 276 App. Div. 1000; King v. King, 190 Misc. 741; Johnson v. Johnson, 206 N. Y. 561; Matter of Stern, 285 N. Y. 239; Finlay v. Finlay, 240 N. Y. 429.) IV. The Domestic Relations Court Act of the City of New York does not entitle the infants to litigate in the Supreme Court.
   Conway, J.

The infant plaintiffs brought this action in the 'Supreme Court, New York County, by their mother as guardian ad litem seeking increased support from defendant, their father, over and above the provision made for them in a divorce decree granted in the State of Nevada where both spouses had, by appearance in the action, submitted themselves to the court’s jurisdiction. Incorporated in that decree, dated December 16, 1948, are a separation agreement entered into by plaintiffs’ parents, dated October 27, 1948, and a modification agreement, dated December 7, 1948. The two agreements gave custody of the children to the mother and provided for the payment to her of $125 a week for her separate maintenance and support. The infant plaintiffs were to receive $25 a week each for separate maintenance, support and education, in addition to which the father undertook to pay all medical expenses incurred on their behalf during their minority.

The complaint alleges that the support provisions are inadequate to the needs of the infant plaintiffs and in addition are below the standards maintained for them during the marriage and below the standards of support which the father is able to afford by reason of his wealth and an annual income alleged to be in excess of $40,000. No new circumstances or change of conditions are alleged in the complaint and no claim is made that defendant is not complying with all of the provisions and directions of the decree. The prayer for relief seeks to have the defendant ordered to contribute at least $100 a week for the support and maintenance of each of the infant plaintiffs. In addition it prays for declarations that neither the Nevada decree nor the separation agreements are binding on the rights and interests of plaintiffs so as to preclude them from bringing an action for increased support and maintenance.

Defendant moved to dismiss the complaint under rule 106 of the Eules of Civil Practice upon the grounds (1) that the complaint did not state facts sufficient to constitute a cause of action, and (2) that the court had no jurisdiction of the subject matter. The order of Special Term granting the motion and dismissing the complaint was affirmed by the Appellate Division by a closely divided court and the case is now here on an appeal by the infant plaintiffs.

We conclude that the complaint was properly dismissed for lack of jurisdiction. Infant plaintiffs’ contention that the Supreme Court of this State has inherent power in equity to compel a father to support his child will not survive analysis. “ The jurisdiction of the courts of equity of the United States is the same as that of England, whence it is derived.” (Barber v. Barber, 21 How. [U. S.] 582, 592.) Under the English law a court of equity had no inherent power to compel the support of a child on petition to it for that purpose. It is said in 17 Halsbury’s Laws of" England (1911) at page 114 that “ Except under the operation of the poor law, there is no actual legal obligation on a father or mother to maintain a child, unless the neglect to do so would bring the case within the criminal law.” An exception existed in the case of a parent who had control of a child’s property and failed to make suitable provisions therefrom for the support of the child (17 Halsbury’s Laws of England [1911], p. 114). In addition it was recognized that a person who had furnished necessaries to an infant, with which the father had failed to provide him, might recover their value from the parent. (17 Halsbury’s Laws of England [1911], p. 114, supra.) The courts of this State have also recognized that a cause of action exists under those circumstances. (De Brauwere v. De Brauwere, 203 N. Y. 460, 464; Van Valkinburgh v. Watson, 13 Johns. 480.)

In England matrimonial matters and incidental questions of support were dealt with solely by ecclesiastical courts and the English law relating to matrimonial causes constituted a part of the ecclesiastical law of that country which has never been adopted by this State. (Caldwell v. Caldwell, 298 N. Y. 146, 152; Erkenbrach v. Erkenbrach, 96 N. Y. 456, 462; Walker v. Walker, 155 N. Y. 77, 80; Burtis v. Burtis, 1 Hopk. Ch. 557.) Jurisdiction over matrimonial causes remained in the ecclesiastical courts until long after this country became an independent nation. It was not until the Matrimonial Causes Act in 1857 (20 & 21 Vict., ch. 85) that jurisdiction of matrimonial causes was transferred to a newly established Divorce Court. (See 11 Halsbury’s Laws of England [1910], p. 505.)

Section 1 of article VI of the Constitution of New York provides that the Supreme Court shall have “general jurisdiction in law and equity ’ ’. The jurisdiction which our Supreme Court inherited from England was the common-law and equity jurisdiction possessed and exercised at the time this country became an independent nation. This jurisdiction is discussed in Matter of Steinway (159 N. Y. 250, 255-258), and is legislatively described in section 64 of the Civil Practice Act which reads: “ General jurisdiction of supreme court. The general jurisdiction in law and equity which the supreme court of the state possesses under the provisions of the constitution includes all the jurisdiction which was possessed and exercised by the supreme court of the colony of New York at any time, and by the court of chancery in England on the 4th day of July, 1776; with the exceptions, additions and limitations created and imposed by the constitution and laws of the state. Subject to those exceptions and limitations the supreme court of the state has all the powers and authority of each of those courts and exercises the same in like manner.”

We have recognized in numerous cases that the jurisdiction of the courts of this State in matrimonial actions is limited to such powers as are expressly conferred upon them by statute. (See, e.g., Caldwell v. Caldwell, 298 N. Y. 146, 152, supra; Ackerman v. Ackerman, 200 N. Y. 72, 76; Walker v. Walker, 155 N. Y. 77, 80, supra; Erkenbrach v. Erkenbrach, 96 N. Y. 456, 462-464, supra; Griffin v. Griffin, 47 N. Y. 134, 138.) During the Colonial period the colony of New York never had any court possessing jurisdiction of matrimonial causes (see Burtis v. Burtis, 1 Hopk. Ch. 557, supra). Prior to the year 1787 the only remedy of aggrieved persons in matrimonial causes had been by application to the Colonial Governor and his council or to the Colonial Legislature and later to the State Legislature for relief. (Burtis v. Burtis, 1 Hopk. Ch. 557, 564-565, supra.) In that year an act was passed which authorized the Court of Chancery to entertain proceedings and to decree divorce on the sole ground of adultery. In 1813, the first statute was enacted conferring on the courts of this State power to make suitable provisions for the support of children of the marriage as an incident to a matrimonial action. (See Seventh Annual Report of N. Y. Judicial Council, 1941, pp. 269-276; Erkenbrach v. Erkenbrach, 96 N. Y. 456, supra.) However, the Supreme Court of this State has never been granted jurisdiction to order support and maintenance for the children of a dissolved marriage where a separate action is brought for that sole purpose as is the case here. The relief sought may be granted only as an incident to a marital action. (Johnson v. Johnson, 206 N. Y. 561; Ramsden v. Ramsden, 91 N. Y. 281; see, also, Matter of Stern, 285 N. Y. 239.) The jurisdiction of the Supreme Court to order maintenance and support for children is measured by the provisions of sections 1164, 1170 and 1170-a of the Civil Practice Act which restrict it to granting relief as an incident of a marital action before the court. Moreover, prior to” the enactment of section 1170-a of the Civil Practice Act in 1941 (L. 1941, ch. 249, as amd.), the Supreme Court had no jurisdiction to deal with the matter of support of infant children of the marriage where the court refused to grant the relief sought in the matrimonial action. (Davis v. Davis, 75 N. Y. 221, 227; Ramsden v. Ramsden, 91 N. Y. 281, 283, supra; Johnson v. Johnson, 206 N. Y. 561, 565, supra; see, also, Finlay v. Finlay, 240 N. Y. 429, 432.)

The custody cases relied upon by infant plaintiffs stand on a different footing. Where the custody or guardianship of a child is in dispute a writ of habeas corpus may be obtained (Domestic Relations Law, § 70) or a petition may be made to the Supreme Court. (Finlay v. Finlay, 240 N. Y. 429, supra.) In England Lord Esher pointed out that in reference to the right of custody of a child there was a common law jurisdiction, under which the Courts used to deal with these matters by habeas corpus ” (Queen v. Gyngall, [1893] 2 Q. B. 232, 238) as in the case of one who is claimed to be improperly detained apart from the parent-child relationship. It was also recognized in England before jurisdiction of matrimonial causes was removed from the ecclesiastical courts by the Matrimonial Causes Act of 1857 (supra), that the right to custody of a child might be enforced either by writ of habeas corpus or by petition in chancery. (See, e.g., Matter of Spence, 2 Phil. Ch. 247 [1847]; 17 Halsbury’s Laws of England [1911], pp. 105, 109.)

The only provisions for compelling future support of a child, who is a resident of New York City, where a nonmarital proceeding is brought for that sole purpose are contained in the Domestic Relations Court Act of the City of New York. That act became effective October 1, 1933 (L. 1933, ch. 482) and was enacted pursuant to permission granted by section 18 of article VI of the Constitution of the State of New York as amended in 1921 and 1925.

Section 91 of that act provides in part as follows: “ The family court shall have (1) Jurisdiction within the city to hear and determine all proceedings to compel the support of a wife, child or poor relative * * (Emphasis supplied.) We have said that the word all ” as used in section 91 means just that. In Matter of Franklin v. Franklin (295 N. Y. 431, 433), we said: “ Within the city of New York, jurisdiction to hear and determine all proceedings to compel the support of a wife is given to the Family Court •— a division of the Domestic Relations Court of the city. (See Domestic Relations Court Act of the City of New York, §§ 5, 91.) ” (Emphasis supplied.) The Family Court has exclusive jurisdiction under section 91 and subdivision 1 of section 137 to hear and determine all proceedings to compel the support of a child whether the parents have or have not been validly divorced. (Matter of Franklin v. Franklin, 295 N. Y. 431, 435, supra.) The fact that a child is not likely to become a public charge does not divest the Family Court of jurisdiction. Section 92 of the Domestic Relations Court Act of the City of New York provides:

11 In the exercise of its jurisdiction the court shall have power
(1) To order support of a wife or child or both irrespective of whether either is likely to become a public charge, as justice requires having due regard to the circumstances of the respective parties.
“ (2) To include in the requirements of an order for support the providing of necessary shelter, food, clothing, care, medical attention, expenses of confinement, the expense of educating his child, the payment of funeral expenses, and other proper and reasonable expenses.”

Where the- petition is made by a person other than the mother of the child the court may not order support in excess of $50 per week: Such limitation shall not, however, apply to a petitioning wife who is pregnant or the mother of a child or children in her custody.” (N. Y. City Dom. Rel. Ct. Act, § 92, subd. [3].) Outside of New York City, jurisdiction to order support of a child is conferred on the Children’s Courts by sections 30 and 30-a of the Children’s Court Act of the State of New York. Those courts are not limited to making a maximum award of $50 a week as support where the petition is by a person other than the mother, having custody of a child, or a pregnant wife.

Here, a Nevada statute, enacted before entry of the decree herein, permits its courts to modify their divorce decrees insofar as they deal with maintenance and support of infant children, and, since that is so — regardless of what the rule might be in the absence of such a statute — the courts of this State have the power to act in like fashion. (Magnolia Petroleum Co. v. Hunt, 320 U. S. 430, 438; Halvey v. Halvey, 330 U. S. 610, 614; Johnson v. Muelberger, 340 U. S. 581.) In other words, the full faith and credit clause of the Federal Constitution does not preclude a petition for additional support in the Domestic Relations Court. Congress pursuant to the authority conferred upon it by section 1 of article I'V of the Federal Constitution has provided that judgments shall have the same full faith and credit in every court within the United States * * * as they have by law or usage in the courts of such State * * * from which they are taken.” (1 U. S. Stat. 122, now U. S. Code, tit. 28, § 1738.) Thus a judgment in the rendering State is entitled to the same finality, i.e., is res judicata only to the same extent in sister States as it is in the rendering State. (Magnolia Petroleum Co., v. Hunt, 320 U. S. 430, 438, supra; Halvey v. Halvey, 330 U. S. 610, 614, supra.) Thus in Halvey v. Halvey (supra, p. 614), the Supreme Court of the United States has epitomized the doctrine by saying: “ So far as the Full Faith and Credit Clause is concerned, what Florida could do in modifying the decree, New York may do.”

The judgment of the Appellate Division should be affirmed, without costs.

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

Judgment affirmed.

       Section 9462 of the Nevada Compiled Laws insofar as applicable here provides: “ * ” * provided that in actions for divorce the court may, during the pendency of the action, or at the final hearing or at any time thereafter during the minority of any of the children of the marriage, make such order for the custody, care, education, maintenance and support of such minor children as may seem necessary or proper, and may at any time modify or vacate the same.”


author: Lewis, J.

text:
    The People of the State of New York, Respondent, v. Patrick J. Langan, Appellant.
    Argued December 4, 1951;
    decided March 13, 1952.

      Robert J. Edelman for appellant.
    I. There was no hearing on appellant’s application for a writ of error coram nobis. The purported “ hearing ” held by the Court of General Sessions of New York County did not satisfy the traditional concept of what constitutes a “ hearing ” or “ trial ”. Hence, appellant was denied his right to a hearing on the questions of fact raised by his sworn allegations. (Matter of Lyons v. Goldstein, 290 N. Y. 19; Rice v. Olson, 324 U. S. 786; Walker v. Johnston, 312 U. S. 275; Waley v. Johnston, 316 U. S. 101; People v. Richetti, 302 N. Y. 290.) II. The presumption of regularity attaching to the judgment was rebutted by appellant’s evidence. The People failed as matter of law to meet the burden of proof cast upon them when the presumption was met by appellant’s evidence. (People v. Bernoff, 61 N. Y. S. 2d 46; People v. Richetti, 302 N. Y. 290.) III. As matter of law, there is no evidence in the present record which meets appellant’s proof that he was not represented by counsel. (Matter of Bojinoff v. People, 299 N. Y. 145; People v. McLaughlin, 291 N. Y. 480.)

      Frank S. Hogan, District Attorney (Jack M. Cotton and Richard G. Denzer of counsel), for respondent.
    I. The motion was properly denied. (Canizio v. New York, 327 U. S. 82; Walker v. Johnston, 312 U. S. 275.) II. No formal hearing requiring the presence of defendant was necessary. (Foster v. Illinois, 332 U. S. 134; Canizio v. New York, 327 U. S. 82; Walker v. Johnston, 312 U. S. 275; People v. Fanning, 300 N. Y. 593.)
   Lewis, J.

We review an order of the Appellate Division affirming an order of the Court of General Sessions, New York County, which denied the petitioner-appellant’s application for a writ of error coram nobis.

On February 5, 1930, the petitioner and one Moffitt appeared in the Court of General Sessions where each entered a plea of guilty to the crime of attempted robbery, third degree. Thereupon there was imposed upon the petitioner a penitentiary sentence for an indeterminate term. On May 31, 1932, the petitioner was convicted in the Court of General Sessions of robbery, first degree, and was then sentenced as a second offender to State prison for a term of thirty years. While serving the latter sentence the petitioner on October 27, 1950, applied in the Court of General Sessions for a writ of error coram nobis, his demand being that the court vacate the judgment by which he had been convicted in 1930, upon the ground that he had not then been advised of his right to counsel, nor was he represented by counsel at the time of that conviction.

Upon the present appeal, the petitioner challenges the order of the Appellate Division upon the ground that the hearing-in the present proceeding at the Court of General Sessions did not afford him rights to which he was entitled as a matter of law. Although, in his motion papers, the petitioner had requested an order directing his return to the Court of General Sessions and, to accomplish that end, had annexed to his petition a form denominated a “ Body Order ” to be filled out and signed by a judge of that court, the order form was not put to use and he was not present in court when the hearing in this proceeding took place.

This court has recently had occasion to consider the right of an applicant for a writ of error coram nobis to a trial in open court. In People v. Richetti (302 N. Y. 290, 296) we held that a denial of such a writ upon the petition and opposing affidavits alone, without a hearing, constituted a deprivation of due process whenever the petitioner’s allegations were not conclusively refuted by unquestionable documentary proof ”. That ruling gives direction to our inquiry: Were the allegations of the verified petition herein conclusively refuted by unquestionable documentary proof which made futile the petitioner’s presence at the hearing?

In support of the relief sought by the petitioner there was before the trial court his verified petition stating that at the time of his trial in 1930 he was not represented by counsel and that he was not visited by counsel nor informed of his right to counsel between January 6,1930, the date of his arraignment, and February 18, 1930, the date of his sentence. A supplemental affidavit by the petitioner was also before the court which pointed out alleged irregularities in notations appearing on the indictment, among which was one that a notice of appearance for the petitioner had been filed by Le Boy Campbell; that in answer to appellant’s written inquiry he received from the associate counsel to the Legal Aid Society of New York City a letter — annexed to the supplemental affidavit — stating that, according to the records of the Court of General Sessions, the petitioner was not represented by Le Boy Campbell but by Thomas J. Sullivan. Our examination of the indictment, which is of record before' us, discloses no notation that Thomas J. Sullivan appeared as counsel in the case at any time. The supplemental affidavit also contains the following statement by the petitioner — “ The tacts are that Mr. I. Abeldórf was hired by the co-defendant’s [Moffitt’s] family to defend him solely. The indictment shows that Mr. Abeldorf was counsel for the co-defendant James Moffitt, and not for the defendant [Langan].”

The District Attorney, appearing for the respondents, filed no affidavit in opposition to the petitioner’s motion, his only written presentment to the court being an unverified paper bearing the caption ‘ District Attorney’s Memorandum in Opposition to Motion for a Writ of Error Coram Nobis.” The facts recited in that memorandum included those which were historically descriptive of the motion and in addition the following eonclusory statements: ‘ ‘ The defendant was not deprived of his constitutional rights. The notations on the original indictment indicate that the defendant was represented by counsel while the minutes of sentence also show that an attorney appeared on the defendant’s behalf. The mere statement of the defendant made almost twenty years after the event cannot overcome the inference raised by these facts or the presumption of regularity which attaches to every final judgment of this Court.”

Our examination of the notations on the indictment, to which the District Attorney’s memorandum referred, discloses a record which is confused: The face of the indictment bears the title “ The People vs. Patrick J. Langan [the appellant] and James Moffitt ”. Opposite Langan’s name is written in ink the index figure “ 1 opposite the name of Moffitt is the index figure “ 2 ”. At the top of the space where notices of appearance are recorded is the following notation — crossed out and marked “Void” — of a notice of appearance filed January 15, 1930, by “ Irving Abelov ”. Immediately under the record thus voided, and opposite the index figure “ 1 ” is the record of the notice of appearance, to which reference has already been made, filed January 16, 1930, by Le Eoy Campbell. Beneath the notation of the Campbell appearance are notes which record the filing of the last notice of appearance as follows: The date “ 1/20/30 ”, an index figure “ 2 ” — which, as we have seen, is the same figure inscribed on the title to the indictment oppo site the name of the defendant Moffitt — followed by the name and address Irving Abelov, 315 W. 54 St ”.

We do not find in the record a formal notice of appearance by an attorney who represented the appellant in the proceedings which led to his conviction in 1930. Nor do we find in the notations upon the indictment, mentioned above, any evidence which supports the unverified statement in the District Attorney’s memorandum that The notations on the original indictment indicate that the defendant [Langan] was represented by counsel " * Rather do the notations afford support for the verified statement by the petitioner, already noted, that — * * * Mr. I. Abeldorf was hired by the co-defendant’s [Moffitt’s] family to defend him solely. The indictment shows that Mr. Abeldorf was counsel for the co-defendant James Moffitt, and not for the defendant [Langan].”

Nor are we impressed by the statement made in the District Attorney’s unverified memorandum that u * * * the minutes of sentence also show that an attorney appeared on the defendant’s behalf.” Upon the hearing in the present proceeding, at which the petitioner was not present, the following examination of Irving Abeloff appears of record:

11 The Court: Have you a recollection that you were the attorney in the case?
‘1 Mr. Abeloff : That is what I was just about to say. When the D. A. said to you I said to him I recollected representing the attorney [sic], I beg to differ with him. I did not make that statement. At this time I say to Your Honor I am not saying I didn’t represent the defendant, and I am not saying I did. I have no independent recollection. It appears to me that I did represent the defendant, because I would not have come in and filed a notice of appearance for him and the co-defendant and appeared before [sic] him on proceedings before sentence. So, it therefore would appear to me that I did represent him.”

That frank but inconclusive statement by Irving Abeloff becomes more inconclusive when considered in the light of the fact, already referred to, that no notation appears on the indictment that Irving Abeloff appeared for the appellant. If the notations upon the indictment have any probative value, the appearance in the proceeding by Irving Abeloff — as stated by the appellant — was for the codefendant Moffitt.

In view of the failure by the District Attorney in the present proceeding either to come forward with a verified statement of facts, or to furnish unquestionable documentary proof which served conclusively to refute the factual statements contained in papers submitted by the petitioner, we think the presumption of regularity, invoked by the District Attorney, was overcome by the factual statements in the petitioner’s motion papers.

In People v. Richetti (supra), when the presumption of regularity was invoked in circumstances akin to those here involved, it was said (p. 298): “ * * * We do not think that presumption of regularity can serve to settle without trial, what otherwise would be a plain dispute of fact. A presumption of regularity exists only until contrary substantial evidence appears (People ex rel. Wallington Apts. v. Miller, 288 N. Y. 31, 33; Galpin v. Page, 18 Wall. [U. S.] 350, 365; 9 Wigmore on Evidence [3d ed.], § 2491). It forces the opposing party (defendant here) to go forward with proof but, once he does go forward, the presumption is out of the case. It could not conceivably be used to prevent defendant from proving his allegations. There must be a trial, as we have indicated, and it will be for the Trial Judge to pass on all questions of fact, including the credibility of defendant and of any other witnesses on either side.” (See, also, Matter of Bojinoff v. People, 299 N. Y. 145, 150-151.)

In the circumstances disclosed by the record before us it is the petitioner’s right to be present at a hearing in open court upon the merits of his application for a writ of error coram nobis, and to have the aid of counsel at such hearing if he is so advised. (People v. McLaughlin, 291 N. Y. 480, 482-483; Johnson v. Zerbst, 304 U. S. 458, 462-468.)

The orders should be reversed and the proceeding remitted to the Court of General Sessions of the County of New York for further hearing and proceedings not inconsistent with this opinion.

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

Orders reversed, etc.


author: Loughran, Ch. J.

text:
    Clara Hammer, Respondent, v. George Hammer, Appellant.
    Submitted December 5, 1951;
    decided March 13, 1952.

      William A. Hyman and Harold W. Hayman for appellant.
    I. The Court of Appeals has jurisdiction to review the order appealed from because all three certified questions present for decision the power of the Appellate Division to grant injunctive relief. If this court finds that there was no power to grant relief, the question of discretion is immaterial, for discretion may not be exercised in favor of granting, if there is no power to grant. (Browning v. Browning, 247 N. Y. 579; Morrell v. Brooklyn Borough Gas Co., 231 N. Y. 398; Bachman v. Harrington, 184 N. Y. 458; McHenry v. Jewett, 90 N. Y. 58.) II. The Appellate Division had no power to grant the temporary injunction while the order dismissing the complaint without leave to amend remained outstanding and unreversed. Plaintiff had no right to the provisional remedy of temporary injunction or to any other remedy in the action while the said order (which stands unreversed) existed. The first and third certified questions should, therefore, be answered in the negative. (Nelson v. Nahtel Corp., 248 App. Div. 221; Bannon v. Bannon, 270 N. Y. 484; Matter of Thrall, 12 App. Div. 235, 153 N. Y. 644; Hayes v. Hayes, 208 N. Y. 600; White v. White, 224 App. Div. 355.) III. Plaintiff submitted no evidence whatsoever that defendant had not established a bona fide domicile in Florida. As a matter of law, she was therefore not entitled to an injunction restraining defendant from maintaining an action for divorce in Florida. The question whether plaintiff made out a case authorizing preliminary relief is a question of law reviewable by the Court of Appeals. (Garvin v. Garvin, 302 N. Y. 96.) IV. There was no separation decree or pending separation action in existence as in Garvin v. Garvin (302 N. Y. 96); Pereira v. Pereira (272 App. Div. 281), and Palmer v. Palmer (268 App. Div. 1010).

      Alexander J. Lekus for respondent.
    I. The order of the Appellate Division granting* a temporary injunction to maintain the status quo before trial was not a final but an intermediate order and is not reviewable by the Court of Appeals. II. In granting the injunction, the Appellate Division did not overlook the fact that the complaint had been dismissed. (Matter of Picariello v. Heffernan, 303 N. Y. 625; Matter of Kalthoff, 298 N. Y. 458.) III. Under the facts disclosed, a court of equity had power to enjoin a foreign suit for divorce against a resident of this State. (Garvin v. Garvin, 302 N. Y. 96; Pereira v. Pereira, 272 App. Div. 281; Palmer v. Palmer, 268 App. Div. 1010; Greenberg v. Greenberg, 218 App. Div. 104; Gwathmey v. Gwathmey, 116 Misc. 85; Johnson v. Johnson, 146 Misc. 93; Dublin v. Dublin, 150 Misc. 694; Selkowitz v. Selkowitz, 179 Misc. 608.)
   Loughran, Ch. J.

The plaintiff is the wife of the defendant. They were married in this State in 1913. In 1948, she brought in the Supreme Court of this State an action against him for a separation. During the trial of that action, they entered into a separation agreement whereby the action was settled and discontinued and he undertook to pay to her the sum of $10,000 and additional weekly payments of $110 for her support.

In February, 1951, he began a suit against her in the Circuit Court of Dade County, Florida, for a divorce, asserting that he had been an actual bona fide resident of that county for a period of more than ninety days immediately preceding the filing there of his bill of complaint against her. Copies of the papers in that action were received by her through the mails on March 2, 1951.

She then commenced in the New York Supreme Court this action against him in which she demands (1) a judgment permanently enjoining prosecution of his Florida divorce suit, and (2) an order also enjoining his prosecution thereof temporarily and until the New York Supreme Court in this action rules upon her right to a permanent injunction. Thereupon he made a cross motion at a Special Term of the Supreme Court of this State for an order dismissing her complaint in this action as being insufficient in law on the face thereof (see N. Y. Rules Civ. Prac., rule 106).

These cross motions resulted in two orders of Special Term. One denied the motion of the plaintiff wife for a temporary injunction and the other granted the motion of the defendant husband for dismissal of her complaint herein. She challenged each of these orders by a separate appeal to the Appellate Division but brought on for argument there only the appeal from the order that had denied her motion for a temporary injunction. By a vote of three to two, the Appellate Division reversed that order on the law and the facts and granted the motion of the plaintiff wife for an injunction pending trial of this action.

Upon a motion subsequently made by counsel for the defendant husband, the Appellate Division granted him leave to appeal to this court upon the following questions certified:

“ 1. Was there any basis in the record for the exercise of discretion by the Appellate Division in issuing a temporary injunction?
2. Even if the complaint had not been dismissed, was there any basis in the record for the exercise of discretion by the Appellate Division in issuing a temporary injunction?
3. Did the Appellate Division have the power to reverse the order in this case denying plaintiff’s motion for an injunction pendente lite and to grant the motion? ”

The complaint of the plaintiff wife showed her to be entitled to a permanent injunction against prosecution by the defendant husband of his Florida divorce suit. Hence the Appellate Division had power in its discretion to issue its order temporarily enjoining his prosecution of that suit (Civ. Prac. Act, § 877; Garvin v. Garvin, 302 N. Y. 96).

The order should be affirmed, with costs. The first and third questions certified are answered in the affirmative. The second question certified is not answered, because no judgment directing dismissal of the complaint appears in the record (see Civ. Prac. Act, § 472; Bannon v. Bannon, 270 N. Y. 484; Matter of Westberg, 279 N. Y. 316, 319).

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

Order affirmed, etc. [See 303 N. Y. 1008.]

\


text:
    In the Matter of Robert A. Brown, an Infant, by Delbert Brown, Jr., His Guardian ad Litem, et al., Appellants, against Board of Trustees of the Town of Hamptonburg, School District No. 4, Respondent.
    Argued January 7, 1952;
    decided March 13, 1952.

      John F. Meehan for appellants.
    I. Section 50-e of the General Municipal Law deprives infant appellant of rights and privileges secured to other citizens of this State by section 1 of article I of the Constitution in that compliance with the statute, within the time therein provided, is impossible by reason of the extreme youth of appellant. (Matter of Fleischmann v. Graves, 202 App. Div. 825, 235 N. Y. 84; Brewster v. Rogers Co., 42 App. Div. 343, 169 N. Y. 73; Matter of Martin v. School Bd. [Long Beach], 301 N. Y. 233; Locklin v. Fischer, 264 App. Div. 452; Murphy v. Village of Fort Edward, 213 N. Y. 397; Russo v. City of New York, 258 N. Y. 344.) II. Section 50-e denies to infant appellant the rights and privileges secured to all other citizens of and over the age of fourteen years by section 1 of article I of the State Constitution in that it fails to provide a remedy against respondent board of trustees. (Rima v. Rossie Iron Works, 120 N. Y. 433.)

      Ernest M. Levinson and Henry Hirschberg for respondent.
    Recent decisions of the Court of Appeals are adverse to the contentions raised by appellants. (Matter of Martin v. School Bd. [Long Beach], 301 N. Y. 233; Chavers v. City of Mount Vernon, 301 N. Y. 634.)
   Conway, J.

The claimant comes to us here on direct appeal on constitutional grounds from an order of Special Term, Orange County, denying a motion for leave to serve a tiotice of claim upon the defendant school district board of trustees after the expiration of the statutory period for such service as provided in section 50-e of the General Municipal Law.

On October 26, 1949, the claimant, then an infant of six years of age, was injured as the result of a fall from a children’s slide owned and controlled by the Board of Trustees of the Town of Hamptonburg, School District No. 4, and located on the grounds of the school. The claimant contends, although the fact is not here in issue, that the injuries were sustained by reason of the negligence of the board, its agents, servants and employees.

No attempt was made to commence an action for damages or to serve a notice of claim on behalf of the infant for a period of sixteen months. On February 26, 1951, the father was duly appointed guardian ad litem. Thereafter, on the 9th day of April, 1951, the infant, by his guardian ad litem, and the father, as parent, moved the Supreme Court, at Trial Term, for leave to serve an appropriate notice of claim.

Trial Term denied the motion for lack of power to grant the relief sought.

Subdivision 1 of section 50-e of the General Municipal Law provides that ‘ ‘ In any case founded upon tort where a notice of claim is required by law as a condition precedent to the commencement of an action * 55 * against a public corporation * * or any officer, appointee or employee thereof, the notice shall * * * be given within ninety days after the claim arises.” A school district is a “ public corporation ” and a municipal corporation ”. (General Municipal Law, § 50-e; General Corporation Law, § 3.) That section further provides (subd. 5) that where “ the claimant is an infant * * * and * * * fails to serve a notice of claim as provided in the foregoing subdivisions of this section within the time limited therefor * * * the court, in its discretion, may grant leave to serve the notice of claim within a reasonable time after the expiration of the time specified in subdivision one. Application for such leave must be made within the period of one year after the happening of the event upon which the claim is based, and shall be made prior to the commencement of an action to enforce the claim * * *.” In Matter of Martin v. School Bd. of Union Free Dist., Long Beach (301 N. Y. 233), we declared that the Legislature, in enacting section 50-e, intended to confer on the courts discretionary power to permit an infant to file a late notice of claim, i.e., after the sixty-day (now ninety-day) period prescribed in subdivision 1 had elapsed. We concluded, however, that the period in which such discretion might be exercised had been designedly limited by the Legislature to one year from the happening of the event upon which the claim was based. Under no circumstances may the court grant leave to file a late notice of claim after a year has elapsed. (See, also, Chavers v. City of Mount Vernon, 301 N. Y. 634.)

Since the service of a notice of claim is a condition precedent to the commencement of any action or special proceeding against a school district or any officer thereof (Education Law, § 3813), the provisions of section 50-e of the General Municipal Law and the Martin and Chavers cases (supra) construing that section apply to the claimant’s case and prevent him from instituting suit against the defendant board. It is quite evident that the claimant is cognizant of that fact. However, he seeks to overcome the obstacle that section 50-e presents to the prosecution of his claim, by having us declare the section to be violative of the State and Federal Constitutions.

In substance the claimant’s contention is that since an infant under fourteen years of age may not sue directly, nor initiate proceedings by application to the courts for the appointment of a guardian ad litem, compliance with the requirements of section 50-e is impossible for such an infant, and as a result his remedy, for any legal wrong done him by a municipality, is withdrawn before he is able to exercise it. That, the claimant urges, deprives him of the rights and privileges secured to other citizens of this State, by section 1 of article I of the State Constitution, and of equal protection of the laws guaranteed to him by the Fourteenth Amendment to the Constitution of the United States.

It is a familiar principle of our law that a municipal corporation is a body politic. It is created by statute and, as an instrumentality of the general government of the State, it exercises powers of government which are delegated to it by the Legislature. Inasmuch as it is a creature of the Legislature, the power that the Legislature wields over a municipal corporation is supreme and transcendent. A municipal corporation exists for the benefit of the public and of the community, and only incidentally for the benefit of the individual. As an auxiliary or arm of the State Government a municipal corporation is possessed of the same immunity from suit at the hands of citizens as does the State. Under the common law the State and municipal corporations were subject to liability when exercising corporate or proprietary functions, but immune from liability when exercising governmental functions. (See 63 C. J. S., Municipal Corporations, § 746.) The operation of a public school system is a governmental function and includes the maintenance of playgrounds and of athletic and manual training equipment used in connection therewith. (Casper v. Longview School Dist. No. 122, 5 Wn. [2d] 403.)

The right, then, of citizens to bring suit against a municipal corporation for alleged negligence in the performance of a governmental function, did not exist at common law. Furthermore, it was not in the past, nor is it at present, guaranteed by constitutional provision. The present rule, that the State and its municipal adjuncts are liable in negligence in the same manner as individuals or corporations, is statutory in origin. (Court of Claims Act, § 8; Bernardine v. City of New York, 294 N. Y. 361.) Manifestly, then, any such right granted is one which might have been withheld altogether by the Legislature. Accordingly, the right to bring suit against a municipality may be granted upon such conditions as the Legislature, in its wisdom, sees fit to impose. (Winter v. City of Niagara Falls, 190 N. Y. 198; MacMullen v. City of Middletown, 187 N. Y. 37; City of Birmingham v. Weston, 233 Ala. 563; Miramar Co. v. City of Santa Barbara, 122 P. 2d 643 [Cal.]; Baker v. Town of Manitou, Colo., 277 F. 232 [C. A. 8th]; Sherfey v. City of Brazil, 213 Ind. 493; Palmer v. City of Cedar Rapids, 165 Iowa 595; Dechant v. City of Hays, 112 Kan. 729; Galloway v. City of Winchester, 299 Ky. 87; Madden v. City of Springfield, 131 Mass. 441; Davidson v. City of Muskegon, 111 Mich. 454; Szroka v. Northwestern Bell Tel. Co., 171 Minn. 57; Schmidt v. City of Fremont, 70 Neb. 577; Robinson v. City of Memphis, 171 Tenn. 471; Hurley v. Town of Bingham, 63 Utah 589.)

Guided by the rule thus stated, we have held' that a statutory or charter provision requiring the service of a notice of claim, as a condition precedent to suit against a municipality, is constitutional. (MacMullen v. City of Middletown, supra.)

Nevertheless, no case has been called to our attention in this State wherein the precise objection made here has been presented, viz., that such a statute is unconstitutional in failing to afford equal protection of the laws.

The absence, in this State, of such a case may be explained by the fact that the law prior to the enactment of section 50-e, was that, although the period for serving notice of claim, as prescribed in the particular statute had expired, the courts, nevertheless, could permit an infant to file a notice of claim thereafter, if it appeared that the infant was incapable of complying with the statutory provisions because of tender years. (See, e.g., Murphy v. Village of Fort Edward, 213 N. Y. 397, 403.) That decision was based upon the maxim that the law does not seek to compel a man to do that which he cannot possibly perform.

The highest court of another State has had occasion to consider the constitutional question posed by the claimant here. (Peoples v. City of Valpariso, 178 Ind. 673.) In holding that the statute there under consideration was not in contravention of the State Constitution, the court pointed out at page 675: “ The liability of the city in the first instance was statutory, and § 8962, supra, is simply a limitation on that liability. One seeking the benefit of the statute must show that he is within its provisions, including that requiring the notice; and the fact that such person was unable to give notice, or cause it to be given, affords no excuse for a failure to comply with the terms of the statute. ’ ’ (See, also, Touhey v. City of Decatur, 175 Ind. 98, holding to the same effect as to the 14th Amendt.)

Statutes such as section 50-e of the General Municipal Law are enacted with a view to enabling municipalities to make early investigations of claims and to marshal evidence promptly at a time when it is possible to do so. Municipalities are, by means of such provisions, protected from needless litigation and are given an opportunity “ to adjust differences and settle claims without suit.” (18 McQuillin on Municipal Corporations [3d ed., p. 576.) (See, also, Weisman v. City of New York, 219 N. Y. 178.) Municipalities are moreover, thereby, afforded a measure of protection against stale claims, or the possible connivance of corrupt officials.” (Winter v. City of Niagara Falls, 190 N. Y. 198, 203, supra.) Manifestly the objects sought to be attained by such enactments are not dependent upon the age of the claimant nor do they vary with the claimant’s age.

The matter of the service of a notice of claim upon a municipality, as a condition precedent to the bringing of an action founded upon tort has now become wholly one of legislative judgment.

The order should he affirmed, without costs.

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

Order affirmed.


author: Desmond, J.

text:
    In the Matter of the Accounting of Edgar F. Luckenbach, as Trustee under the Will of Lewis Luckenbach, Deceased. Lewis Luckenbach et al., Appellants; Edgar F. Luckenbach, Jr., et al., Respondents.
    Argued November 20, 1951;
    decided March 13, 1952.

      James A. Delehanty, Francis A. McGrath and James N. Vaughan for appellants.
    I. The Appellate Division employed a principle of law, existing for the protection of trusts and the effectuation of a trustor’s intention, as a means for injury to the trust and frustration of the trustor’s intention. (Noble State Bank v. Haskell, 219 U. S. 104; Matter of Fowles, 222 N. Y. 222.) II. Where less than all of several trustees exercise a power in the administration and management of a trust, the act thus performed is not void but voidable. (Hull v. Newhall, 244 Mass. 207.) III. Factually, when the appeal was taken there were in office as trustees inter vivas only Barnett and Landres since Wente from February 17, 1950, had been out of office as trustee. All powers over the trust from that day forward were fully vested in the continuing trustees and accordingly the appeal by them was sufficient under a literal application of the rule requiring united action by cotrustees. IV. The rule requiring unitary action by cotrustees is not inflexibly applied to all situations but is molded to meet the facts so that its application will be enforced with justice to the trust. (Belmont v. O’Brien, 12 N. Y. 394; Weeks v. Frankel, 197 N. Y. 304; Lane v. Hustace, 154 App. Div. 636; Matter of Crossman, 20 How. Prac. 350.) V. Under the proved circumstances an emergency existed within the meaning of the rule which states that less than all of several cotrustees may effectively act to protect the trust in order to meet changed circumstances. VI. The action below in dismissing the appeal cannot be reconciled with statutory policy which determines that the right of appeal is a valuable right and shall not be lost for technical defects provided the appeal is taken on time. (Hartigan v. Casualty Co. of America, 180 App. Div. 193; Evans v. Backer, 101 N. Y. 289; Matter of Donahue, 193 Misc. 685.) VII. The court below seriously erred in dismissing the appeal of Lewis Luckenbach in his individual capacity because, first, he is in fact an aggrieved party and, second, his status as such is the established law of this case in virtue of the history of the litigation. (Matter of Pruyn, 76 Hun 128, 141 N. Y. 544; Matter of Wagner, 52 Hun 23, 119 N. Y. 28; Matter of Winburn, 270 N. Y. 196; Matter of Burk, 298 N. Y. 450; Western R. R. Co. v. Nolan, 48 N. Y. 513.) VIII. The fact that Lewis Luckenbach is an aggrieved party is determinable by consideration of his status as fixed by the law of California which controls the inter vivas trust. Under that law it has been authoritatively decided that a party circumstanced as is Lewis Luckenbach has an absolute right to appeal against any decision adverse to the interests of the trust. (Nichols v. Emery, 109 Cal. 323; Warren Co. v. All Persons, 153 Cal. 771; Davidow v. Corporation of America, 16 Cal. App. 2d 6; Cullinan v. Mercantile Trust Co., 193 Cal. 562; Matter of Finch, 202 Cal. 612.)

      Robert W. Owens, Jr., William R. Conklin and Sperry Butler for Edgar F. Luckenbach, Jr., respondent.
    I. Lewis Luckenbach was not a party aggrieved by the decree of the Surrogate’s Court. (Ward v. Iroquois Gas Corp., 258 N. Y. 124; Bryant v. Thompson, 128 N. Y. 426; Hyatt v. Dusenbury, 106 N. Y. 663; Idley v. Bowen, 11 Wend. 227; Matter of Hodgman, 11 App. Div. 344, 161 N. Y. 627; Mills v. Hoag, 7 Paige Ch. 18; Reid v. Vanderheyden, 5 Cow. 719.) II. The law of New York, not California law, governs this question. (3 Beale on Conflict of Laws [1935 ed.], p. 1603, § 588.1; Stoneman v. Erie Ry. Co., 52 N. Y. 429; Whiting v. Glass, 217 N. Y. 333; Foster v. Central Nat. Bank, 183 N. Y. 379.) III. The party ággrieved was Landres, Barnett and Wente as trustees. No other person could appeal. (Fritz v. City Trust Co., 72 App. Div. 532, 173 N. Y. 622; Thatcher v. Candee, 33 How. Prac. 145, 3 Keyes 157; Drinkhouse v. Birch Ranch & Oil Co., 97 Cal. App. 2d 923; Conrad v. Hawk, 122 Cal. App. 649; Union Bank & Trust Co. v. Penwell, 99 Mont. 255; Matter of Fine, 139 Neb. 247.) IV. Neither ratification nor amendment is possible. (Patterson v. Hamilton, 26 Hun 665; Matter of Keegan, 55 Hun 603; Cotes v. Carroll, 28 How. Prac. 436; Matter of Frooks v. Clurman, 268 App. Div. 1051; Terwilliger v. Browning, King & Co., 207 N. Y. 479; Guarantee Trust & Safe Deposit Co. v. Philadelphia, R. & N. E. R. R. Co., 160 N. Y. 1.) V. The question as to whether or not there are three trustees must be determined by the record in New York. (Kane v. Walsh, 295 N. Y. 198.) VI. Under the California statute, the office of trustee can be vacated only by death or discharge. (Title Ins. & Trust Co. v. McGraw, 72 Cal. App. 2d 390; Coughran v. First Nat. Bank, 19 Cal. App. 2d 152; Hunt v. Lawton, 76 Cal. App. 655; Cauhape v. Barnes, 135 Cal. 107; Bixby v. Hotchkis, 58 Cal. App. 2d 445; Anthony v. Janssen, 183 Cal. 329; Drinkhouse v. Birch Ranch & Oil Co., 97 Cal. App. 2d 923.)

      Paul Windels for Roscoe H. Hupper, respondent.
    I. Lewis Luckenbach, as beneficiary of the trust which he created, has no right to appeal. (Szuchy v. Hillside Coal & Iron Co., 150 N. Y. 219; Terwilliger v. Browning, King & Co., 207 N. Y. 479; People ex rel. Crane v. Hahlo, 228 N. Y. 309; Matter of Pariser, 231 App. Div. 762; Bryant v. Thompson, 128 N. Y. 426; Matter of Hodgman, 11 App. Div. 344, 161 N. Y. 627; Matter of Hamilton, 182 App. Div. 908; McQuaide v. Perot, 223 N. Y. 75; Hart v. Goadby, 138 App. Div. 160; Brooklyn Free Kindergarten Soc. v. Elbran Realty Corp., 255 App. Div. 852; Hecla Powder Co. v. Sigua Iron Co., 157 N. Y. 437.) II. That trustees constitute in law but a single person and in all but administrative or ministerial matters may act only in the name of all is elementary law both in this State and in California. (Fritz v. City Trust Co., 72 App. Div. 532, 173 N. Y. 622; Deering’s Civil Code of California, § 2268; Conrad v. Hawk, 122 Cal. App. 649; Ayrshire Corp. v. United States, 331 U. S. 132; Patterson v. Hamilton, 26 Hun 665; Matter of Frooks v. Clurman, 268 App. Div. 1051; People ex rel. Goldschmidt v. Board of Educ. of City of N. Y., 217 N. Y. 470; Ufland & Co. v. McMahon, 215 App. Div. 267.) III. The law of the forum controls in the matter of jurisdiction. (Kleckner v. Lehigh Valley R. Co., 36 F. Supp. 600; Mertz v. Mertz, 271 N. Y. 466.)
   Desmond, J.

Lewis Luckenbach, in 1936, assigned to three trustees (Londres, Barnett and Wente) the whole of his vested remainder interest in a testamentary trust set up by his grandfather’s will, which had been probated many years before. In this accounting proceeding, begun in 1938, on that testamentary trust of the grandfather, Lewis Luckenbach, as well as his three trustees-assignees, were made parties, and all appeared by the same firm of attorneys and filed objections to the account. By a Surrogate’s decree entered and served in December, 1950, those objections were overruled. Meanwhile, in February, 1950, Wente, one of the three trustees to whom Lewis Luckenbach had conveyed his remainder interest in the testamentary trust, had resigned, or attempted to resign, as a trustee of Lewis Luckenbach’s trust, by sending Lewis Luckenbach a letter to that effect, but Wente has never accounted, or been formally discharged as trustee. In January, 1951, within the time limited for an appeal, Lewis Luckenbach, together with his two trustees Barnett and Landres, served and filed, through newly substituted attorneys, a notice of appeal to the Appellate Division, from the Surrogate’s decree. The name of Wente, the trustee who had resigned or attempted to resign, was not signed to this notice of appeal, but it appears without dispute that the notice of appeal was served on Wente by delivering a copy thereof to the attorneys who had previously appeared for Wente in the accounting proceeding. The Appellate Division, on motion, has dismissed that appeal, on the ground that the notice of appeal was a nullity since made in the name of two only of the trustees. The Appellate Division held that the purported appeal taken by Lewis Luckenbach individually was a nullity, also, since he had previously transferred all his interest in the testamentary trust to his three trustees — and with that part of the Appellate Division decision we agree. This opinion, therefore, deals with so much only of the Appellate Division’s order as holds that Lewis Luckenbach’s two remaining trustees could not, without the third, take any appeal. Such a dismissal is, for our jurisdictional purposes, treated as an affirmance (see Guaranty Trust Co. v. State of New York, 299 N. Y. 295, 299).

The Appellate Division’s determination means, of course, that Lewis Luckenbach’s trustees can never have a hearing in any appellate court on the issues on which those trustees were defeated in the Surrogate’s Court, although the appeal therefrom was timely taken by the only persons then actually representing the trust. “ Our law considers it an essential right of a suitor to have his cause examined in tribunals superior to those in which he considers himself aggrieved” (Yates v. People, 6 Johns. 337, 364). So valuable a right should not be declared forfeited except in the clearest of cases. We do not think this was such a case.

This inter vivas trust created by Lewis Luckenbach provides, among other things, that it is to be governed by the laws of California. However, as we see it, nothing turns upon that, since, as the Appellate Division pointed out, the rule on which that court relied for dismissal — that all trustees must act together and collectively — obtains in both New York and California (see Cooper v. Illinois Central R. R. Co., 38 App. Div. 22; Anthony v. Janssen, 183 Cal. 329). But the rule which requires united action has a number of exceptions, the first and most obvious one being that unanimity of trustees is not requisite where the trust indenture itself provides otherwise (3 Bogert on Trusts and Trustees, § 554). Indeed a California statute (Civil Code of Cal., § 2268) states that exception. In the trust we are dealing with, this appears: “In the event of a disagreement among the Trustees as to a course of conduct or a policy to be followed, then the will of the majority of the Trustees shall control and be binding upon the third Trustee.” Here the third trustee (Wente) had announced in advance that he did not intend any longer to act as such — in other words, that he did not intend to come to any agreements, in the future, with his two associates. That should, for these purposes, be treated osa“ disagreement ’ within the meaning of the indenture’s proviso above quoted.

To the rule that all trustees must, ordinarily, unite in any action taken on behalf of the trust, there is another well-established exception, equally applicable here, to the effect that in a case of emergency, some of the trustees, to protect the trust, may act in behalf of all (Restatement, Trusts, § 194, comment a ; 3 Bogert on Trusts and Trustees, § 554, p. 439; 2 Scott on Trusts, p. 1054, citing Anonymous v. Gelpcke, 5 Hun 245, and Busse v. Schenck, 12 Daly 12, both of which old New York cases seem to recognize this exclusion from the rule). An emergency did arise in the matter of taking this appeal for this trust, when the new attorneys, retained just before the time to appeal expired, learned that one of the three trustees had previously announced his withdrawal and declination to act any longer, but had not been formally discharged. Suppose he had been in the armed forces at the battle front, or had been gravely ill in a hospital, or could not be found. Would any court then say that the two others could not take an appeal?

We must remember that this united action rule as to trustees was created by the courts to safeguard trusts. It should not be so applied as to deprive a trust of necessary protection.

The order should be reversed, with costs, insofar as it dismisses the appeal taken by Landres and Barnett, as trustees, and their appeal to the Appellate Division should be reinstated.

Loughran, Ch. J., Conway, Dye, Fuld and Froessel, JJ., concur with Desmond, J.; Lewis, J., dissents and votes for affirmance upon the grounds stated in the Per Curiam opinion at the Appellate Division on the motion for reargument.

Order reversed, etc.


text:
    Helen M. Dunham, as Administratrix of the Estate of Charles L. Dunham, Deceased, Appellant, v. Village of Canisteo et al., Respondents.
    Argued October 16, 1951;
    decided March 13, 1952.

      Albert Hollis and Wilbur F. Knapp for appellant.
    I. The negligence of defendants was established by the evidence and the verdict in favor of plaintiff should be sustained. II. Defendants’ negligence was a question of fact for the jury. (Slater v. Illinois Cent. R. Co., 209 F. 480; Whitesides v. Southern R. R. Co., 128 N. C. 229; Eddy v. Village of Ellicottville, 35 App. Div. 256; Robischon v. City of Utica, 257 App. Div. 1036.) III. There was no evidence of contributory negligence except the possible question of drinking and this was a question of fact for the jury and they properly resolved this question in favor of plaintiff. Defendant had the burden of proof on this question. IV". The medical testimony was more than a scintilla of evidence and was sufficient to make a question of fact for the jury. (McCahill v. New York Transp. Co., 201 N. Y. 221; Turner v. Nassau Elec. R. R. Co., 41 App. Div. 213; Lang v. Stadium Purchasing Corp., 216 App. Div. 558; Coleman v. Ruggles-Robinson Co., 159 App. Div. 268.)

      W. Earle Costello and Morris H. Barash for respondents.
    I. Plaintiff failed to establish sufficient facts to make out a prima facie case that defendants were guilty of some breach of a duty owed plaintiff’s intestate. (Di Biase v. Ewart & Lake, Inc., 228 App. Div. 407.) II. Decedent was guilty of contributory negligence. (Lee v. City Brewing Corp., 279 N. Y. 380; Porter v. New York City Interborough Ry. Co., 235 App. Div. 525, 261 N. Y. 587; Sweeney v. Thompson Starrett Co., 246 App. Div. 224, 272 N. Y. 485; Sackheim v. Pigueron, 215 N. Y. 62.) III. Plaintiff failed to establish any causal relation between any act or omission to act on the part of defendants and the development of the pneumonia which ultimately caused decedent’s death. (McDonald v. Metropolitan St. Ry. Co., 167 N. Y. 66; Matter of Case, 214 N. Y. 199; Joergens v. State of New York, 244 App. Div. 867; Loes v. Poll & Co., 242 App. Div. 729; Seifter v. Brooklyn Heights R. R. Co., 169 N. Y. 254; Laidlaw v. Sage, 158 N. Y. 73.)
   Conway, J.

At about 4:45 of the afternoon of March 3,1949, a windy, freezing day — the plaintiff’s intestate, Charles Lee Dunham, a man seventy-six years of age, was found on the floor of the fire station of the village of Canisteo, New York, by the village fire commissioner. The latter asked him if he was hurt but his answer was incoherent and he appeared to be suffering from the cold. The commissioner immediately reported the situation to the mayor of the village, who notified the chief of police, Harold Stephens. Those men together with the superintendent of streets of the village returned to the fire station and found the decedent in about the same position on the floor, apparently unconscious or sleeping. They carried him to the village jail and placed him first on the floor of the jail and then on a cot in one of the cells. While lying on the floor of the jail, the decedent stated he had fallen in front of the Red Front grocery store. He complained of his hip, but said he did not wish a doctor.

It appears that decedent and his son had driven that morning from their farm to attend a cattle auction sale in Bath, New York, a distance of about twenty miles. On their return in the afternoon, they stopped at the farm of a friend, one Sills, for about twenty minutes. There a bottle of whiskey which the decedent had previously purchased was opened and Mr. Sills and the decedent each had one drink, after which the decedent put the bottle back in his pocket. At about 4:00 p.m. the deceased and his son left the Sills’ farm and proceeded to Canisteo. The father alighted in front of the post-office building and said he would stay in the village and ride home with one of the neighbors.

Apparently the only person who saw Mr. Dunham between that time and the time he was found at the fire station, forty-five minutes later, was one Aaronson, who testified that he saw the decedent walking through an alley back of Aaronson’s place of business, hanging on to a stick or cane, staggering from one side to the other, and that in his opinion the deceased was intoxicated.

After taking the decedent to jail, the mayor and the police chief decided that no charge should be placed against him, since, although he appeared to them to be intoxicated, he had done no harm, but that they would keep him in the jail where it was warm, as he was unable to go home. The decedent was checked in his cell by either the police chief Stephens or a village police officer hourly from 5:00 p.m. on March 3d until 10:20 a.m. on March 4th.

During the night, Stocking, a railroad inspector, and one Keyes visited the jail. The inspector testified that the decedent was moaning like a man in pain and that he asked for a doctor. Keyes stated that the village police officer told him that Mr. Dunham was not intoxicated but that he appeared to be in pain or sick and that he had rheumatism and complained about his hip. The police officer testified that he had helped the decedent at different times during the night as he was unable to get up alone. When asked by one of the witnesses, between 2:00 and 3:00 on the morning of March 4th, after Mr. Dunham had asked for a doctor, why he did not get one, the officer said “ it was no use at this time of the morning and it wouldn’t do any good if he did.”

Police chief Stephens, according to his testimony, became aware that Mr. Dunham was injured at about 9:00 a.m. on March 4th, when he complained that his leg hurt. Noticing that he was unable to get around, the police chief called for an ambulance. Seven days later, on March 11th, Mr. Dunham died at St. James Mercy Hospital.

The death certificate signed by the attending physician, reads as follows:

c í j^g * % *
I. DISEASE OR CONDITION DIRECTLY LEADING TO DEATH
(a) Terminal Bronchial Pneumonia
ANTECEDENT CAUSES DUE TO
(b) Fracture Right Hip
(c) Fracture Right Elbow
22d. TIME OF INJURY
3/3/49 Fell on Sidewalk ”.

This action was instituted to recover damages for the death of Mr. Dunham and for his pain and suffering prior thereto, by reason of the negligence of the Village of Canisteo and police chief Stephens in failing to obtain medical care for the decedent for eighteen hours after they had taken him to the village jail.

At Trial Term a jury awarded a verdict to plaintiff-appellant. The Appellate Division reversed the judgment entered on the law and facts and dismissed the complaint upon the ground that plaintiff-appellant had failed to present evidence that the delay in providing medical attendance to her intestate was a competent producing cause of the pneumonitis which caused his death.

Two questions are presented: First, was the Village of Canisteo, acting through its officers, particularly its chief of police, guilty of negligence in failing to ascertain for some eighteen hours, while the decedent lay on a cot in the village jail, that he had been injured and was in need of medical attention? Second: If the Village of Canisteo and Stephens were negligent, was that negligence the proximate cause of decedent’s death?

Under the circumstances, the village authorities, having assumed charge of the deceased when he was incoherent and unable to represent himself, were under an obligation to exercise ordinary care. (Harper on Torts, § 81; cf. Eddy v. Village of Ellicottville, 35 App. Div. 256, where negligence of the village under similar circumstances was recognized although it was not charged with liability because it was exercising a governmental function.) The care required in the instant case included the procurement of medical assistance, if the village officials knew or should have known that the deceased was hurt or injured and in need of a doctor. (Slater v. Illinois Cent. R. Co., 209 F. 480.)

The evidence on this point is conflicting. The testimony of the village officials, chief of police Stephens, the mayor, the fire commissioner and the superintendent of streets, all interested witnesses, was to the effect that the decedent when found, appeared to be intoxicated and that he stated in answer to queries as to how he was feeling that he was in pain and that the pain was due either to a hip injury, rheumatism, or arthritis and that he did not wish a doctor. On the other hand, other witnesses testified that deceased was not intoxicated and that, in addition to being in pain, he was in need of and asked for a doctor.

Since the reversal by the Appellate Division was upon the law and the facts and the complaint was dismissed, we are required to give plaintiff-appellant the benefit of every favorable inference that may be drawn from the record. (De Wald v. Seidenburg, 297 N. Y. 335, 336-337.) If there is evidence from which the negligence of the defendants may be reasonably inferred, the question was properly one for the jury. (Betzag v. Gulf Oil Corp., 298 N. Y. 358, 362.) Our examination of the record has disclosed evidence upon which the jury could find that the village authorities, if they did not know the nature and extent of the decedent’s injuries, knew at least that he was in pain, that he had fallen down, and that he was in need of medical attention. With such knowledge, under the circumstances, the village authorities were under a duty to obtain medical care for the deceased.

The defendants, however, deny liability on the ground that the delay in providing medical attention was not a competent producing cause of the pneumonitis which resulted in death. They take the position that the deceased might have developed pneumonia and died even if he had been taken to the hospital or given medical aid immediately upon being found on the floor of the fire station; that he might have died from the effects of the bone fractures or from the effects of his exposure to the cold weather.

It is, of course, well settled in this State that when there are several proximate or efficient causes contributing to death, the death may be attributed to any or all of those causes. (Foley v. State of New York, 294 N. Y. 275, 280; Sweet v. Perkins, 196 N. Y. 482; Pierce v. Atlantic, Gulf & Pacific Co., 216 N. Y. 209; Restatement, Torts, § 879.) The fact that the bone injuries and subsequent pneumonitis in the instant case might have eventuated in decedent’s death without the alleged negligent acts of the village authorities, does not for that reason render the rule inapplicable. (McCahill v. New York Transp. Co., 201 N. Y. 221.)

Whether or not the evidence established that the delay of eighteen hours on the part of the village authorities was a competent producing cause of the death of the decedent is largely dependent upon the expert medical testimony of Dr. Otto K. Stewart, the attending physician. He was asked a long hypothetical question, concluding as follows: “ * * * are you able to express an opinion, with reasonable certainty, as to whether the delay of eighteen hours from the time he [the decedent] received the injuries until he received medical attention was a competent producing cause of the pneumonitis which you testified to? ” He replied that in his opinion it was a reasonable medical certainty that the delay of eighteen hours contributed to Mr. Dunham’s death. He testified also that early treatment in injury cases is an important factor. On the other hand, he stated that, even if Mr. Dunham had had the best available medical treatment at 4:45 on the afternoon of March 3d, he might have developed pneumonia six days after he arrived at the hospital and died from it.

The defendants urge that the doctor’s testimony was not sufficiently definite; that he was not inclined to venture a positive medical opinion as to whether or not the delay in procuring medical assistance was a competent producing cause of Mr. Dunham’s death. We are satisfied, however, that the main point of his testimony was to the effect that the delay of eighteen hours did contribute to this man’s death.

The sufficiency of the testimony of Doctor Stewart is sustained by our decision in McCahill v. New York Transp. Co. (supra). In that case the plaintiff’s intestate suffered a broken thigh and knee injury when he was struck by a taxicab. He died two days after the accident of delirium tremens. A physician testified (pp. 222-223): I should say with reasonable certainty the injury precipitated his attack of delirium tremens, and understand I mean precipitated, not induced ”. Again the doctor testified that in his opinion, the injury to the leg and the knee hurried up the delirium tremens.” He also stated: “ He might have had it (delirium tremens) anyway. Nobody can tell that. ’ ’ It was urged in the McCahill case that decedent’s alcoholism might have caused delirium tremens and death at a later date even if he had not been injured by the taxicab. Similarly, in the instant case, it is argued that the decedent might have developed pneumonia and, as Dr. Stewart admitted, died, even if he had been taken to a hospital immediately. In disposing of the argument in the McCahill case we said (pp. 223-224): “ The principle has become familiar in many phases that a negligent person is responsible for the direct effects of his acts, even if more serious, in cases of the sick and infirm as well as in those of healthy and robust people, and its application to the present case is not made less certain because the facts are somewhat unusual and the intestate’s prior disorder of a discreditable character. (Tice v. Munn, 94 N. Y. 621; Crank v. Forty-second Street, M. & St. N. Ave. Ry. Co., 53 Hun, 425; affd., 127 N. Y. 648; Allison v. C. & N. W. R. Co., 42 Iowa, 274; Owens v. K. C., S. J. & C. B. Ry. Co., 95 Mo. 169, 182.) The principle is also true although less familiar, that one who has negligently forwarded a diseased condition and thereby hastened and prematurely caused death cannot escape responsibility even though the disease probably would have resulted in death at a later time without his agency. It is easily seen that the probability of later death from existing causes for which a defendant was not responsible would probably be an important element in fixing damages, but it is not a defense. ’ ’

The question here is whether the defendants’ acts or omissions to act substantially contributed to the decedent’s death. We stated the applicable rule in Cornbrooks v. Terminal Barber Shops (282 N. Y. 217, 223, Lewis, J.): “ It is not enough that the defendant, in an effort to break the chain of causation, should prove that plaintiff’s injury might have resulted from other possible causes, nor is it required of the plaintiff that he eliminate by his proof all other possible causes. 1 The existence of remote possibilities that factors other than the negligence of the defendant may have caused the accident, does not require a holding that plaintiff has failed to make out a prima facie case. It is enough that he shows facts and conditions from which the negligence of the defendant and the causation of the accident by that negligence may be reasonably inferred. ’ (Ingersoll v. Liberty Bank of Buffalo, 278 N. Y. 1, 7.) ” (Emphasis in original.)

Here the evidence disclosed facts and conditions from which the negligence of the defendants and the causation of the decedent’s death by that negligence may be reasonably inferred. Upon all the evidence, we are satisfied that whether or not defendants’ negligence was a competent producing cause of the pneumonitis which resulted in the death of the deceased was a question of fact for determination by the jury. We cannot say as a matter of law, in view of the doctor’s testimony, that the delay in this case of eighteen hours commencing shortly after serious injury to a man seventy-six years of age was not a substantial factor for the jury to consider in determining the cause of his death.

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

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

Judgments reversed, etc.

       Note that municipal corporations no longer enjoy sovereign immunity. (Bernardine v. City of New York, 294 N. Y. 361, 365; McCrink v. City of New York, 296 N. Y. 99.)