author: Hubbs, J.

text:
    The People of the State of New York ex rel. Martin Mooney, Appellant, against The Sheriff of New York County, Respondent.
    (Submitted November 20, 1935;
    decided January 7, 1936.)

      James D. C. Murray and Daniel Kirchman for appellant.
    On grounds of public welfare, communications between newspaper reporters and informers should be privileged. (Hurlburt v. Hurlburt, 128 N. Y. 420; Matter of King v. Ashley, 179 N. Y. 281; Whiting v. Barney, 30 N. Y. 330; Davis v. Dinwoody, 4 Durn. & E. 678; Stillman v. Stillman, 115 Misc. Rep. 106; Edington v. Mutual Life Ins. Co., 67 N. Y. 185; Morison v. Moat, 21 L. J. [N. S.] Ch. 248; Eastman Kodak Co. v. Reichenbach, 29 N. Y. Supp. 1143; National Gum & Mica Co. v. Braendley, 51 N. Y. Supp. 93; Vulcan Detinning Co. v. Assmann, 173 N. Y. Supp. 334; Matter of Cohen, 174 N. Y. Supp. 427; McLellan v. Richardson, 1 Shep. [Me.] 82; Howard v. Thompson, 21 Wend. 319; Gray v. Pentland, 2 Serg. & R. 23; Thompson v. German Valley R. Co., 22 N. J. Eq. 111; Totten v. United States, 92 U. S. 105; Hennessy v. Wright, 21 Q. B. Div. 509; State v. Wilcox, 90 Kan. 80; Vogel v. Gruaz, 110 U. S. 311; Worthington v. Scribner, 109 Mass. 487; Oliver v. Pate, 43 Ind. 132; Gabriel v. McMullin, 127 Iowa, 426; State v. Soper, 16 Me. 293.)

      William Copeland Dodge, District Attorney (Felix C. Benvenga and A. A. DeVito of counsel), for respondent.
    Communications to reporters are not privileged. (Rogers, v. State, 88 Miss. 38; Matter of Lawrence, 116 Cal. 298; People v. Durrant, 116 Cal. 179; Joslyn v. People, 67 Col. 297; Plunkett v. Hamilton, 136 Ga. 72; Matter of Grunow, 84 N. J. L. 235; Matter of Wayne, 4 Hawaii Fed. Rep. 475; People ex rel. Phelps v. Fancher, 4 T. & C. 467; Pledger v. State, 77 Ga. 242; Matter of Holliway, 272 Mo. 108; Howe v. Regenburg, 75 Misc. Rep. 132; People ex rel. Vogelstein v. Warden, 150 Misc. Rep. 714; 242 App. Div. 611; People v. Roach, 215 N. Y. 592; People ex rel. Sabold v. Webb, 5 N. Y. Supp. 855; People v. Tompkins, 186 N. Y. 413; Sternlieb v. Normandie Nat. Sec. Corp., 263 N. Y. 245.)
   Hubbs, J.

The appellant, a reporter on the New York American, was called as a witness before the grand jury of the county of New York, which was investigating alleged violations of the provisions of the Penal Law relating to gambling and lottery. He refused to answer certain questions on the ground that the source of his information, obtained as a newspaper reporter, was confidential and privileged. Appellant had written articles upon that subject for his paper in which he had stated that in spite of the investigations being conducted by the grand jury the policy racket was still going on. He admitted before the grand jury that he wrote the articles stating that they were based on contacts ” made by him. He was asked to give the name and address of the persons and places mentioned in the articles. He refused to do so and was adjudged guilty of contempt of court in General Sessions and committed. He procured a writ of habeas corpus which was dismissed and the order dismissing it was afiirmed by the Appellate Division, first department.

The only question presented on this appeal is whether a newspaper reporter may lawfully refuse to answer pertinent questions relating to communications made to him as a reporter on the ground that such communications are privileged.

There is no statute in this State covering the subject. It is urged by appellant that the basis for the privilege granted in the cases where it is conceded to be properly granted exists in the case of a reporter. Attention is called to the fact that in addition to the statutory privileges existing between attorney and client, husband and wife, physician and patient, and certain others, there also exist certain common law cases where the privilege is granted, like communications made to a judge, to a district attorney and to police officers in the performance of their duties, and it is urged that the principle underlying the granting of those privileges exists in the case of a reporter. Appellant admits that no court has ever so decided, but urges that the development of the law and changes in social relations require that courts now extend the privilege to a reporter.

The opinion in the case of People ex rel. Phelps v. Fancher (4 Thomp. & C. 467) stated that the editor of a newspaper while a witness before a grand jury was not privileged from disclosing the name of the author of a libelous article published in his paper. A decision of the question here involved was not, however, necessary to the decision of that case. The conclusion there reached has been reached by the courts of every State which has passed upon the subject. There are no decisions to the contrary at the present time which have not been overruled although there were early decisions in England which decided in accordance with appellant’s contention. Such decisions have been overruled in England and the rule there is now the same as in this country.

5 Wigmore on Evidence (p. 1) contains a discussion on the subject of privileged communications. Section 2286 reads: “ In general, then, the mere fact that a communicar tian was made in express confidence, or in the implied confidence of a confidential relation, does not create a privilege. This rule is not questioned today. No pledge of privacy, nor oath of secrecy, can avail against demand for the truth in a court of justice: Accordingly, a confidential communication to a clerk, to a trustee, to a commercial agency, to a banker, to a journalist, or to any other person, not holding one of the specific relations hereafter considered, is not privileged from disclosure.”

In addition to the English case cited by the learned author the following cases in this country have decided that the privilege does not exist in favor of a newspaper editor or reporter: Matter of Lawrence (116 Cal. 298); People v. Durrant (116 Cal. 179); Joslyn v. People (67 Col. 297); Plunkett v. Hamilton (136 Ga. 72); Matter of Grunow (84 N. J. L. 235).

The States of Maryland, New Jersey and Alabama have by statute extended the privilege to newspaper reporters. Such enactments are severely criticized by Professor Wigmore (§ 2286, note 7).

Various attempts have been made in this State to enact a statute extending the privilege to reporters but such attempts have uniformly been defeated. Similar bills were introduced at the last session of the Legislature but failed to pass.

The policy of the law is to require the disclosure of all information by witnesses in order that justice may prevail. The granting of a privilege from such disclosure constitutes an exception to that general rule. In the administration of justice, the existence of the privilege from disclosure as it now exists often, in particular cases, works a hardship. The tendency is not to extend the classes to whom the privilege from disclosure is granted, but to restrict that privilege.

On reason and authority, it seems clear that this court should not now depart from the general rule in force in many of the States and in England and create a privilege in favor of an additional class. If that is to be done, it should be done by the Legislature which has thus far refused to enact such legislation.

The order should be “affirmed, without costs.

Crane, Ch. J., Lehman, O’Brien, Crouch, Loughran and Finch, JJ., concur.

Order affirmed.


source: Caselaw Access Project

author: Loughran, J.

license: Public Domain

text:
    Isabel Looram, Respondent, v. Dorothea Looram, Individually and as Trustee, et al., Appellants, and Lucien Looram et al., Respondents, Impleaded with Others.

      (Argued November 20, 1935;
    decided January 7, 1936.)

      Charles H. Griffiths and Pearce PL. E. Aul for appellants.
    The trust agreement creates three trusts by directing an arithmetical division of the corpus into three shares, and the trustees hold each share as a separate and distinct trust. (Matter of Horner, 237 N. Y. 489; Locke v. Farmers Loan & Trust Co., 140 N. Y. 135; Matter of Verplanck, 91 N. Y. 439; Wells v. Wells, 88 N. Y. 323; Stevenson v. Lesley, 70 N. Y. 512; Savage v. Burnham, 17 N. Y. 561; Matter of Magnus, 179 App. Div. 359; Matter of Dwyer, 144 Misc. Rep. 590.) None of the three trusts suspends the absolute ownership of personal property for more than two lives in being, and, therefore, the trust agreement complies in every way with section 11 of the Personal Property Law (Cons. Laws, ch. 41). (Matter of Hitchcock, 222 N. Y. 57; Herzog v. Title Guaranty & Trust Co., 177 N. Y. 86; Roe v. Vingut, 117 N. Y. 204; Van

      Cott v. Prentice, 104 N. Y. 45; Cheever v. Cheever, 172 App. Div. 353.) The meaning of the trust deed and the intent of the settlor must be ascertained from the instrument itself. (Central Union Trust Co. v. Trimble, 255 N. Y. 88; Whittemore v. Equitable Trust Co., 250 N. Y. 298; Farmers Loan & Trust Co. v. Callan, 246 N. Y. 481; New York Life Ins. & Trust Co. v. Hoyt, 161 N. Y. 1; Knowlton v. Atkins, 134 N. Y. 313; Pendergast v. Greenfield, 127 N. Y. 23; Boucicault v. Leubuscher, 124 Misc. Rep. 232; Hubbell v. Burnet, 46 Fed. Rep. [2d] 446; Stark v. United States, 14 Fed. Rep. [2d] 616; Springsteen v. Samson, 32 N. Y. 703; Matter of Milhau, 151 Misc. Rep. 283; Prudence Co. v. Central Hanover Bank & Trust Co., 237 App. Div. 595; Roe v. Vingut, 117 N. Y. 204; Equitable Trust Co. v. Miller, 197 App. Div. 391; 233 N. Y. 650; Cohen v. Wacht, 137 Misc. Rep. 679; 231 App. Div. 801; Matter of Aucaigne, 131 Misc. Rep. 723; Matter of Fenton, 123 Misc. Rep. 658; 214 App. Div. 754.)

      John J. Cunneen for William P. Cavanaugh, individually and as executor and trustee, defendant.
    The various trusts are valid and should be sustained. (Robinson v. Adams, 81 App. Div. 20; 179 N. Y. 558; Tobin v. Graf, 39 Misc. Rep. 412; Garland v. Garland, 35 Misc. Rep. 147; Williams v. Williams, 8 N. Y. 525; Matter of Megrue, 170 App. Div. 653; Matter of Verplanck, 91 N. Y. 439; Everitt v. Everitt, 29 N. Y. 39; Cheever v. Cheever, 172 App. Div. 353; Orr v. Orr, 147 App. Div. 753; 212 N. Y. 615; Pruyn v. Sears, 161 N. Y. Supp. 58; Matter of Hoffman, 121 N. Y. Supp. 100; 124 N. Y. Supp. 1089; Matter of Huchins, 125 N. Y. Supp. 699; Purdy v. Hayt, 92 N. Y. 446.)

      John G. Dyer, as guardian ad litem, and Emmanuel Lewin for Samuel S. Thorton, II, an infant, defendant.
    The deed of trust indicates that the essential elements thereof are legal to effectuate the purpose of the grantor. (Matter of Gallien, 247 N. Y. 195; Matter of Trevor, 239 N. Y. 6; Matter of Aucaigne, 131 Misc. Rep. 723; Roe v.
      Vingut, 117 N. Y. 204; Kennedy v. Hoy, 105 N. Y. 134; Matter of Horner, 237 N. Y. 489; Matter of Verplanck, 91 N. Y. 439; Orr v. Orr, 147 App. Div. 753; Matter of Hinchman, 141 App. Div. 95; Pruyn v. Sears, 96 Misc. Rep. 200; People v. Powers, 147 N. Y. 104; Tilden v. Green, 130 N. Y. 29; Underwood v. Curtis, 127 N. Y. 523; Hayes v. Clay sons, 179 N. Y. Supp. 153; Burnet v. Bookstaver, 10 Hun, 481; Matter of Kaplan, 160 N. Y. Supp. 1034; Simon v. Burgess, 127 N. Y. Supp. 147.)

      Arthur T. O’Leary and Edward W. Rooney for plaintiff-respondent.
    With his own as one of the measuring lives, settlor created a single trust that is wholly void. (Leach v. Godwin, 198 N. Y. 35; Matter of Beale, 213 App. Div. 13; Matter of Horner, 237 N. Y. 489; Matter of Grace, 232 App. Div. 76; 261 N. Y. 502; Bailey v. Buffalo L., T. & S. D. Co., 213 N. Y. 525; Central Trust Co. v. Egleston, 185 N. Y. 23; Hafner v. Hafner, 62 App. Div. 316; 171 N. Y. 633; Matter of Duffey, 144 Misc. Rep. 140; 238 App. Div. 863; Matter of Perelman, 148 Misc. Rep. 906; Cohen v. Wacht, 137 Misc. Rep. 679; 231 App. Div. 801; Matter of Wilcox, 194 N. Y. 288.) The instrument contains some provisions patently invalid, others, impossible of performance, and fails to dispose of certain remainder interests. (Matter of Wilcox, 194 N. Y. 288; Matter of Horner, 237 N. Y. 489; Trunkey v. Van Sant, 176 N. Y. 535; Prichard v. Thompson, 95 N. Y. 76; Holmes v. Mead, 52 N. Y. 332.)

      Townsend Morgan, as guardian ad litem, and Gregory A. Lee for Lucien Looram, an infant, respondent.
    The purported trust is void because it attempts to suspend the power of alienation beyond two lives in being, and, therefore, violates section 11 of the Personal Property Law. (Matter of Duffey, 144 Misc. Rep. 140; 238 App. Div. 863; Central Trust Co. v. Egleston, 185 N. Y. 23; Leach v. Godwin, 198 N. Y. 35; Matter of Wilcox, 194 N. Y. 288; Matter of Horner, 237 N. Y. 489; Matter of Beale, 213 App. Div. 13; Matter of Magnus, 179 App. Div. 359;
      Bailey v. Buffalo L., T. & S. D. Co., 213 N. Y. 525; New York Life Ins. & Trust Co. v. Hoyt, 161 N. Y. 1; Pendergast v. Greenfield, 127 N. Y. 23; Matter of Grace, 232 App. Div. 76; 261 N. Y. 502.)

      C. 0. Donahue and Lawrence Morris for Bank of New York and Trust Company, as general guardian of the property of Lucien Looram, an infant, respondent.
    The purported trust is void because the instruments alleged to have created it are so indefinite as to be meaningless and consequently are unenforceable. (Dillaye v. Greenough, 45 N. Y. 438; Gueutal v. Gueutal, 113 App. Div. 310; New York Life Ins. & Trust Co. v. Hoyt, 161 N. Y. 1; Pendergast v. Greenfield, 127 N. Y. 23.) Even though the instruments which are supposed to have created the trust be given sufficient meaning to define their terms, they are void because of an attempt to create an illegal suspension. (Matter of Wilcox, 194 N. Y. 288; Matter of Hitchcock, 222 N. Y. 57; Waterman v. New York Life Ins. & Trust Co., 237 N. Y. 293; Keefe v. Keefe, 230 App. Div. 654; Williams v. Petit, 138 App. Div. 394; Kearney v. Kearney, 170 App. Div. 636; Matter of Hunt, 207 App. Div. 127; 237 N. Y. 613.)
   Loughran, J.

On December 31, 1928, Matthew M. Looram by a written instrument conveyed to himself as trustee personal property described in a schedule thereto annexed. He was then a widower having three children therein named as primary beneficiaries. Thereafter Mr. Looram married the plaintiff who, on his death, brought tins action against the respective parties in interest under the trust indenture. Judgment is demanded declaring the instrument void as suspending the absolute ownership of personal property for a longer period than during the continuance and until the termination of two lives in being at its date (Pers. Prop. Law [Cons. Laws, ch. 41], § H).

The principal defendants moved for dismissal of the complaint as insufficient in law. An order denying the motion has been affirmed by the Appellate Division. That court allowed this appeal, certifying to us the question whether the pleading states facts sufficient to constitute a cause of action. The answer turns on the effect to be given to some of the provisions of the trust instrument.

Before these are stated, it may be noticed that the action is not one for a construction of the trust that would separate what is valid from what perhaps is not. Plaintiff assails as wholly bad an instrument that makes no mention of her. To sustain that position she must establish that the challenged provisions offend the statute in a contingency so vital to the grantor’s purpose that his plan in its entirety is void. This necessary premise plaintiff accepts, and her argument goes as far as the necessities of her case.

The trust provisions to be considered are these:

The Trustee shall divide the whole of the principal hereafter into three equal shares or parts, one share for . my daughter Dorothea Looram, one share for my daughter Alice Looram and one share for my daughter Alvina Looram, and shall dispose of the principal and income of the said shares as follows:
To pay the income from each share at such time in which sums and in such manner as the Trustee may see fit to my daughter Dorothea Looram, Alice Looram and Alvina Looram, as long as my said daughters shall live and upon the death without leaving lawful issue by birth surviving of any of the said beneficiaries to divide the share held for the one so dying equally between my surviving daughters, in Trust, nevertheless, until the death of my second surviving daughter, or in the event of the death of any of the beneficiaries herein leaving lawful issue surviving their share to be divided between such surviving issue per stirpes, in trust, until the death of my second surviving daughter, when this trust shall terminate as to her share and the Trustee will convey, assign, transfer, pay over and deliver absolutely to my surviving daughter or any surviving issue of my daughters in equal shares per stirpes, all securities, cash, real estate and other property then constituting the principal of the trust fund. Upon the death of my surviving daughter without lawful issue being left surviving her or any of my said daughters this trust shall terminate and the principal then remaining in the hands of the Trustee will be paid over absolutely as follows: One half of the principal to my son Lucien Looram, if living; or if dead leaving lawful issue him surviving by birth, his share to his issue per stirpes, the remaining half to be divided equally between the New York Foundling Asylum and The Little Sisters of the Poor Home for the Aged or their successors in the event that my son Lucien be dead without lawful issue by birth him surviving, then the whole of said remaining principal to be divided equally between the above named New York Foundling Asylum and The Little Sisters of the Poor Home for the Aged or their successors.”

It is not asserted that any term of suspension is invalid if it is limited to continue during the lives of such two of the three designated daughters of the grantor as shall be the first two of them to die. Such a term cannot last longer than if the instrument had confined it to the life of any particular two of the group, and it may end earlier.” (Chaplin on Suspension of the Power of Alienation [3d ed.], § 108.) What is contended is that the dominant purpose of the grantor was the creation of a single trust to subsist at least as long as any of his three named daughters should live.

On the contrary, as we think, the grantor plainly spoke first and predominately of three separate trusts each with a capital of one-third the whole and each limited on the life of one of his daughters nominatim for a primary life estate. All that is said against this construction is that the word “ trusts ” is not found in the writing. That technical suggestion fails to commend itself to us as we follow the several events that were to control the disposition of the fund. For the moment the question is not validity but intention, and upon that question even a void provision * * * may be looked to for light.” (Lougheed v. Dykeman’s Baptist Church, 129 N. Y. 211, 217.) The three equal shares or parts ” into which the grantor directed division to be made were dealt with by him as such and accordingly exist as shares. {Matter of Horner, 237 N. Y. 489.)

It is perhaps enough to say that each of the three separate primary trusts limited on the life of a named daughter of the grantor is valid. The plaintiff is not aided, however, when we take up the directions for later subdivision of the original shares. Each separate primary trust is validly limited on a second life, i. e., the life of the first to die of the other two daughters of the grantor.

Excluding now the possibility of living issue of the deceased life beneficiary of a primary trust, the fund to be held for each of the two secondary life estates is an original one-third set apart for each of the survivors plus one-half of the third theretofore in trust for the daughter of the grantor who first dies. On the death of the daughter second to die there must be distributed the whole of her trust principal then constituted of her original one-third share plus the one-sixth of the original whole that came out of the share of the sister who predeceased her; and at least all but the original principal of the share for the surviving third daughter.

Should issue survive the beneficiary of a primary life estate first to die, a secondary trust is erected for her issue. The capitals of these secondary trusts are respectively the fractional shares of her primary trust established by the number of her surviving issue. Distribution of these secondary trust principals must be made on the death of the second daughter of the grantor to die.

We need not now be concerned with the interests of issue of any daughter of the grantor other than his daughter first to die or with the provisions for repeated deposit of parts of the original whole if the first two to die of the grantor’s daughters leave no issue (See Vander pod v. Loew, 112 N. Y. 167). Nor need we consider the matter of distribution of the subdivided fractions set up for issue of the daughter first to die should any of such issue die while the second limiting fife continues. Nor need we consider the implications of the instrument in the event the daughter last to die leave no issue, but be survived by issue of either of her predeceased sisters. Nor need we consider when the original share of the last survivor must be distributed. The possibilities inherent in these aspects of the instrument cannot save the present pleading of this plaintiff. (See Matter of Mount, 185 N. Y. 162.)

There remains the contention that one of the measuring lives was that of the grantor himself. By the trust instrument, The grantor directs that upon his death the trust herein created shall be continued,” and that other named persons then shall act as the trustees in his place and stead.” This was no more than a designation of substitutes for the grantor as trustee. The idea that the fife of the grantor was thereby made a limiting life is unsound.

The orders should be reversed and the motion granted, with costs in all courts, and the question certified answered in the negative.

Cbane, Ch. J., Lehman, O’Bbien, Hubbs, Cbouch and Finch, JJ., concur.

Orders reversed, etc.


text:
    In the Matter of the Accounting of The Manufacturers National Bank of Troy, as Trustee under the Will of Frederick R. Martin, Deceased. Home for the Aged of the Little Sisters of the Poor of Troy, Appellant; The Manufacturers National Bank of Troy, as Trustee, et al., Respondents.

      (Argued November 21, 1935;
    decided January 7, 1936.)

      James V. Coffey and Eugene V. Coffey for appellant.
    The will gives no express discretion in the trustee. None can be implied. Therefore, it was the duty of the Surrogate to fix and decree the amount, if any, of principal payable to the beneficiary. (Bundy v. Bundy, 47 Barb. 135; 38 N. Y. 410; Matter of Riley, 4 Misc. Rep. 338; Matter of Goodwin, 122 App. Div. 800; Matter of Ward, 186 App. Div. 261.) Failure to appeal from the original decree precluded the beneficiary from reviewing the determination of a question of law on which that decree was based. Under the guise of a modification the original. decree has been reversed. (Matter of Youker, 217 App. Div. 347; Matter of Droney, 231 App. Div. 674; Herpe v. Herpe, 225 N. Y. 323; Matter of Brennan, 251 N. Y. 39; Matter of Starbuck, 248 N. Y. 555; Matter of Henderson, 157 N. Y. 423.) Under the terms of the will, it was proper that the Surrogate consider the independent resources of the beneficiary in determining whether and to what extent it was necessary to invade the principal for the care, support and comfort of the beneficiary. (Matter of Title Guaranty & Trust Co., 195 N. Y. 339; Matter of Gatehouse, 149 Misc. Rep. 648; Holden v. Strong, 116 N. Y. 471; Rezzemini v. Brooks, 236 N. Y. 184; Matter of Shea, 140 Misc. Rep. 710; 234 App. Div. 176; Matter of Blanchard, 232 App. Div. 361; Matter of Van Zandt, 231 App. Div. 381; Matter of Hogeboom, 219 App. Div. 131; Matter of Niles, 122 Misc. Rep. 17; Matter of Johnson, 123 Misc. Rep. 834; Matter of White, 135 Misc. Rep. 377.)

      John J. Mackrell for Margaret C. McDonnell, respondent.
    It is for the trustee and not the Surrogate to determine how much the beneficiary requires for her care, support and comfort. (City Bank Farmers’ Trust Co. v. Smith, 263 N. Y. 292; Ireland v. Ireland, 84 N. Y. 321; Matter of Hilton, 174 App. Div. 193; Matter of Shea, 234 App. Div. 176; Matter of Smith, 150 Misc. Rep. 261.) It was within the power of the Surrogate at any time to strike out that provision of the original decree which fixed a specific sum to be paid annually to the beneficiary for her requirements. The invasion of the principal directed by the testator in the will made the care, support and comfort of the respondent during her natural life a charge against the entire trust fund, irrespective of her other resources. (Rezzemini v. Brooks, 236 N. Y. 184; Matter of Gatehouse, 149 Misc. Rep. 648; Matter of Briggs, 101 Misc. Rep. 191; Matter of Niles, 122 Misc. Rep. 17; Matter of Johnson, 123 Misc. Rep. 834; Matter of Hogeboom, 219 App. Div. 131; Holden v. Strong, 116 N. Y. 471.) The provision in the decree of the Surrogate limiting the respondent to $2,800 annually for her care, support and comfort was contrary to the manifest purpose and intention of the testator. (Colton v. Fox, 67 N. Y. 348; Matter of Soley, 150 Misc. Rep. 839; Matter of McDuffie, 148 Misc. Rep. 821; Matter of Pulis, 220 N. Y. 196; Matter of Tamargo, 220 N. Y. 225; Tilden v. Green, 130 N. Y. 29.)
   Hubbs, J.

Frederick R. Martin died at Troy, New York, on February 6, 1926, leaving a last will. The will named his aunt and the respondent, The Manufacturers National Bank of Troy, as executrix and executor. His aunt having predeceased him, the bank was the only-executor to qualify.

Under the third clause of his will, his executors were given the residue of the estate in trust for a named beneficiary for life. Upon her death the executors were directed to pay certain legacies from the principal of the trust fund. As to the balance the will provided:

“ 5. All the rest, residue and remainder of said trust fund, I direct said Trustees to continue to hold and keep invested as aforesaid and to pay over to my cousin, Margaret C. McDonnell, who now resides at No. 141 Third Street, Troy, N. Y., the net income thereof, in quarter-yearly installments, and such part of the principal thereof as she may require for her care, support and comfort, during her natural life.
6. Upon the death of my said cousin, Margaret C. McDonnell, I give, devise and bequeath the principal of the trust estate hereby created, as the same shall then exist after such withdrawals of principal of the trust estate as are herein provided for, to the Little Sisters of the Poor, a charitable organization having a home for the aged on Ninth Street, in the City of Troy, N. Y.”

The bank having filed its account of proceedings as executor, Margaret C. McDonnell, the beneficiary named in paragraph 5 of the third clause of the will, applied to the Surrogate for the determination of the Surrogate of .the amount to be paid to her annually for her care, support and comfort.”

In that proceeding, she asked that the trustee be directed to pay to her the sum of $8,000 per annum. The annual income of the trust fund at that time was approximately $4,000 and on July 14, 1927, an amended decree was made by the Surrogate directing the executor to pay to her all income earned if in excess of $4,000 and that amount in any event. That sum the bank continued to pay until 1934, when it filed its account of proceedings, as trustee and presented a petition praying for an intermediate judicial settlement of the same.

In the latter proceeding, the appellant Home for the Aged of the Little Sisters of the Poor, of Troy, New York, beneficiary under the sixth paragraph of the third clause of the will, filed a petition which set forth that the income from the trust fund was inadequate to pay $4,000 annually to Margaret C. McDonnell, that it was not necessary that such sum should be paid to her for care, support and comfort as she had an income separate and apart from - the trust fund and that if said trust fund was depleted because of the payment to her of the sum of $4,000 the principal thereof would be diminished to the loss and injury of the appellant.

Testimony having been taken which indicated that at that time the annual income of the trust fund was approximately $2,800 and that the respondent Margaret C. McDonnell then had an income of approximately $2,000 per year as a teacher, the Surrogate made a decree effective January 1, 1935, providing that the income if $2,800 or more and in any event the sum of $2,800 be paid to the beneficiary Margaret C. McDonnell annually for her care, support and comfort. From that decree the respondent Margaret C. McDonnell appealed to the Appellate Division which modified the decree of the Surrogate by striking out the provision fixing specific amounts to be paid to the beneficiary Margaret C. McDonnell and directing the trustee to pay over to the beneficiary the whole of the net income of the trust fund as provided in the will and in addition thereto such part of the principal thereof as in the judgment and discretion of said trustee may be required for her care, support and comfort.”

The first question to be considered upon this appeal is whether paragraph 5 of the third clause of the will makes the gift from principal conditional, not upon the insufficiency of income to meet the expense of such care, support and comfort, but upon the actual needs or requirements of the beneficiary therefor. The Appellate Division has decided that the gift is broad enough to cover the entire expense of providing for the care, support and comfort of the beneficiary irrespective of her independent means. Support for that conclusion is said to be found in the decisions of this court in Holden v. Strong (116 N. Y. 471, 473) and Rezzemini v. Brooks (236 N. Y. 184).

In the first of those cases the testator gave the trustee full power and authority to use so much of the trust fund, either interest or principal, as shall, in his judgment and discretion, be necessary for the proper care, comfort, and maintenance ” of his son. That proceeding was one instituted by the beneficiary to procure a construction of the will, not one where the interests of a remainderman were alleged to be put in jeopardy by an invasion of the principal. The court did say that the beneficiary was entitled to full support irrespective of earning capacity. An analysis of the language there used would seem to indicate a clear intent on the part of the testator to give of principal and income an amount which in the judgment and discretion of the trustee would fully provide for the proper care, comfort and maintenance of the beneficiary. The gift of principal is as broad as the gift of interest. It is clearly not a gift of income with a condition attached as to the invasion of principal. Moreover, the beneficiary, a son, was shown to be a person below normal, mentally and physically, who had been insane and for whom the testator might be expected to have great solicitude.

In Rezzemini v. Brooks (supra, p. 191) the gift was of the income of a trust with a further provision in the following language: “ If the income from my estate shall be insufficient for the proper support of my said son, then in that event, I authorize and empower my said trustee to expend so much of the principal thereof as may be necessary for that purpose.”

Upon the death of the beneficiary, the principal of the trust, or so much thereof as may then remain,” was given to the remaindermen. The court held that the gift was one of care and support. irrespective of sufficiency of income of the fund or of the independent resources of the beneficiary. The language there used indicates that the gift was one of income of the fund and so much of the principal thereof as might be necessary for a specified purpose, the purpose specified being “ the proper support of my said son.”

The gift from principal was not in terms made conditional upon the necessities of the son but rather upon the insufficiency of income to provide care and support.

Apparently this court has not passed upon a case where the language used in a will containing a trust provision for care and support is practically identical to that used in the will now before us. Testamentary trusts depending for interpretation upon substantially similar language to that here used have been under consideration in other courts of this State. A number of those cases are collated and commented upon in Matter of Gatehouse (149 Misc. Rep. 648). Perhaps the closest parallel to the situation here presented was involved in Matter of Hogeboom (219 App. Div. 131, 132) where the testatrix gave the remainder of her estate to her husband, “ he to have only the income thereof, unless he shall need it for his support and maintenance, when he shall have the right to use so much of the principal which together with the income thereof shall be necessary for his comfortable maintenance and support.” The court there decided that the private resources of the beneficiary must be taken into consideration in determining the sum which he was entitled to receive from the principal of the estate.

In other cases where a similar conclusion was reached, the gift from principal could, by the language used, be separated from the gift of income and was made conditional upon the needs or requirements of the beneficiary. The gift of support and maintenance in so far as it permitted invasion of the principal was not made absolute but dependent upon the needs or requirements of the beneficiary. The learned Surrogate in Matter of Gatehouse distinguishes the decisions in the Rezzemini and Holden cases on the ground that in each of those cases the bequest was of full maintenance and support with no condition of need attached.

The similarity of the language used in the will under consideration in Rezzemini v. Brooks (supra) to that used in the will now before us makes the difference in extent of the bequest granted somewhat difficult to distinguish, but a careful reading of the provisions of the two wills makes clear the fact that in Rezzemini v. Brooks the intent was to provide from the trust fund full care and support, whereas in the will now before us invasion of the principal was made dependent upon the needs or requirements of the beneficiary.

The primary question in this class of cases always is, does the will constitute an absolute gift of support and maintenance which it makes a charge upon the income from the estate and upon principal? If so, then the private income of the beneficiary cannot be considered. If, however, the gift is of income coupled with a provision that the principal may be invaded in case of need, the private income of the beneficiary must be considered in determining whether such need exists.

We have reached the conclusion that Margaret C. McDonnell, the respondent, is entitled to have applied for her care, support and comfort a portion of the principal of the trust fund only in the event that the income from the trust fund supplemented by her independent income shall be insufficient to provide for her proper care, support and comfort.

This leads to the question as to the jurisdiction of the Surrogate to determine the proper amount required by the beneficiary for her care, support mid comfort. In attempting to arrive at a solution of that problem we must first ascertain whether under the terms of the bequest, discretion is vested in the trustee to determine the amount required by the beneficiary.

It is contended on the part of the respondent that the will does not constitute the Surrogate the judge of how much the beneficiary may require for her care, support and comfort and on the part of the appellant that the will gives no express discretion to the trustee and that none can be implied. It is quite clear that the will does not give to the trustee in express terms a right to exercise discretion in determining the amount required by the beneficiary. It is directed to pay the net income and such part of the principal as the beneficiary may require. Since the word require is to be construed as meaning need or necessity, power is not conferred on the beneficiary to specify how much she shall be paid. The amount, if any, in excess of income to which she may from time to time be entitled to receive presents a pure question of fact which, like any similar question, the interested parties have a right to have determined in a judicial proceeding unless the testator has specified otherwise. That he has not done in express terms and he has not used words from which he may be said to have done so by implication. Where a will is silent as to who shall determine the amount necessary for the care, support and comfort of a beneficiary, and the right to use principal is made dependent upon the needs of the beneficiary, a question is presented for judicial determination. (Bundy v. Bundy, 47 Barb. 135; affd., 38 N. Y. 410. See, also, Matter of Riley, 4 Misc. Rep. 338; Matter of Goodwin, 122 App. Div. 800; Matter of Ward, 186 App. Div. 261.)

No practical difficulty is presented in the administration of a trust as a result of a finding that the amount to be paid from principal is for determination by the court in the first instance, since action by a trustee is always subject to review, and determination of the reasonableness and propriety of payments made by a trustee would depend upon substantially the same proof as is required in determining by decree the amount necessary to be paid.

Even were it to be held that discretion is vested in the trustee herein to determine the amount of principal, if any, necessary for the care, support and comfort of the beneficiary, it is doubtful whether the respondent is in a position to question the jurisdiction of the Surrogate. The precise question here presented was submitted by respondent in a proceeding involving the particular trust estate, pursuant to a stipulation that all parties interested agree that the matter should be submitted to the court for such order as the court believes just and proper under the circumstances.”

Submission of the question resulted in a decree from which respondent did not appeal and the benefits of which she has enjoyed over a long period of years. To hold that she may now in the absence of an appeal from the original decree avoid the effect of that stipulation whbn one of the parties to that proceeding seeks a modification of the decree would result in confusion in the administration of estates.

The order of the Appellate Division should be reversed and the decree of the Surrogate’s Court affirmed, with costs in this court and in the Appellate Division.

Crane, Ch. J., Lehman, Crouch, Loughran and Finch, JJ., concur; O’Brien, J., not sitting.

Ordered accordingly.


author: Crane, Ch. J. Finch, J.

text:
    The People of the State of New York, Respondent, v. Sam Pieri, Joe Pieri, John Tronolone and Anthony Perna, Appellants. The People of the State of New York, Respondent, v. Sam Berman, Barney Gambino, Irving Moskowitz, Irving Shanker and Oscar Shapiro, Appellants. The People of the State of New York, Respondent, v. Salvatore Arcidiaco and Salvatore Spitale, Appellants.

      (Argued November 25, 1935;
    decided January 7, 1936.)

      Samuel M. Fleischman for Sam Pieri, Joe Pieri, John Tronolone and Anthony Perna, appellants.
    Subdivision 11 of section 722 of the Penal Law is unconstitutional because it is vague and indefinite; because the presumption created by the statute violates the constitutional requirement of due process of law; because it requires the accused to testify in his own behalf to meet the presumption, and because it does not accord the accused a fair opportunity to make his defense. (Hammond v. State of Ohio, 78 Ohio St. 15; Manley v. Georgia, 279 U. S. 1; St. Louis v. Roche, 128 Mo. 541; St. Louis v. Fitz, 53 Mo. 582; Pinkerton v. Verberg, 78 Mich. 584; People v. Licavoli, 264 Mich. 643; People v. Alterie, 356 Ill. 307; People v. Belcastro, 356 Ill. 144.) The law is unconstitutional because the presumption of guilt being based upon reputation of the accused, without more, is unreasonable and arbitrary. (People v. Licavoli, 264 Mich. 643.)

      Harry G. Anderson, Sol A. Klein and Abraham H. Kesselman for Sam Berman, Barney Gambino, Irving Moskowitz, Irving Shanker and Oscar Shapiro, appellants.
    Subdivision 11 of section 722 of the Penal Law does not formulate a clear and definite test of criminality. It is so vague and indefinite as to constitute a deprivation of liberty without due process of law as well as an unwarranted delegation of legislative authority. It is, therefore, unconstitutional. (People v. Stoll, 242 N. Y. 453; People v. Shakun, 251 N. Y. 107; Connolly v. General Constr. Co., 269 U. S. 385; Standard C. & M. Corp. v. Waugh Corp., 231 N. Y. 51; People v. Belcastro, 356 Ill. 144; People v. Alterie, 356 Ill. 307; People ex rel. Frank v. Keeper, 38 Misc. Rep. 233; United States v. Reese, 92 U. S. 214; United States v. Cohen Grocery Co., 255 U. S. 81.) The presumption created by the statute violates the constitutional requirement of due process of law for the reason that there is no rational connection between the fact proved and the fact presumed. (People ex rel. Waronoff v. Mallon, 222 N. Y. 456; McFarland v. American

      Sugar Co., 241 U. S. 79; Manley v. Georgia, 279 U. S. 1; Bailey v. Alabama, 219 U. S. 219; Mobile, J. & K. C. R. R. Co. v. Turnipseed, 219 U. S. 35; People v. Cannon, 139 N. Y. 32; Opinion of the Justices, 208 Mass. 619; Morrison v. California, 291 U. S. 82; Bd. of Commrs. v. Merchant, 103 N. Y. 143; State v. Kline, 50 Ore. 426; State v. Lawlor, 28 Minn. 216; People v. Mancuso, 255 N. Y. 463; Westeern & A. R. R. Co. v. Henderson, 279 U. S. 639; People v. Rizzo, 246 N. Y. 334; People v. Knapp, 206 N. Y. 373; People v. Flack, 125 N. Y. 324; People v. Nixon, 248 N. Y. 182.) The presumption of guilt, being based upon the “ reputation ” of the accused is unreasonable and arbitrary amounting to a deprivation of due process of law. (People v. Licavoli, 264 Mich. 643; Hughes v. State, 29 Ohio C. C. 237; Hammond v. State, 78 Ohio St. 15; State v. Karts, 13 R. I. 528; People v. Ahearn, 196 N. Y. 221; Matter of Rouss, 221 N. Y. 81.) The statute deprives a citizen of the right of liberty guaranteed by section 6 of article 1 of the Constitution. (People ex rel. Palter v. Warden, 200 N. Y. Supp. 542; City of Watertown v. Christnacht, 39 S. D. 290; Hechinger v. Maysville, 22 Ky. 486; Cady v. Barnesville, 4 Ohio Dec. 396; St. Louis v. Roche, 128 Mo. 541; Matter of Smith, 135 Mo. 223.) The presumption created by the statute was wholly destroyed by the testimony adduced by the defendants. The trial court was, therefore, in error in finding the defendants guilty. (People v. Cannon, 139 N. Y. 32; People v. Egnor, 175 N. Y. 419; Chaika v. Vandenberg, 252 N. Y. 101; St. Andrassy v. Mooney, 262 N. Y. 368; Chesapeake & Ohio Ry. Co. v. Martin, 283 U. S. 209; People v. Ledwon, 153 N. Y. 10.) The prosecution failed to either charge in its complaint or to prove at the trial that defendants committed any act with intent to provoke a breach of the peace or whereby a breach of the peace might be occasioned. (People v. Zambounis, 251 N. Y. 94; People v. Cook, 220 App. Div. 110; 248 N. Y. 597; People v. Nixon, 248 N. Y. 182.)

      Elvin N. Edwards, Leo Fishel, Maurice F. Cantor and Robert J. Fitzsimmons for Salvatore Arcidiaco and Salvatore Spitale, appellants.
    One of the elements of the statute is that the defendant “ bears an evil reputation,” and without legal and competent proof of such fact a defendant may not be found guilty. (People v. Van Gaasbeck, 189 N. Y. 408; Carlson v. Winterson, 147 N. Y. 652; People v. Crapo, 76 N. Y. 288; People v. Irving, 95 N. Y. 541; People v. Colantone, 243 N. Y. 134.) Subdivision 11 of section 722 of the Penal Law is unconstitutional in that it violates the requirement of due process of law, as prescribed by section 1 of the Fourteenth Amendment to the Constitution of the United States. (People v. Cannon, 139 N. Y. 32; Morrison v. California, 291 U. S. 82; People ex rel. Waranoff v. Mallon, 222 N. Y. 456; People v. Belcastro, 356 Ill. 144; City of St. Louis v. Fitz, 53 Mo. 582; St. Louis v. Roche, 128 Mo. 541; Matter of Smith, 135 Mo. 223; People v. Licavoli, 264 Mich. 643.)

      Walter C. Newcomb, District Attorney (W. J. Wetherbee and David F. Doyle of counsel), for respondent.
    The statute does not violate the constitutional requirements of due process of law. (People v. Cannon, 139 N. Y. 32; Mobile, J. & K. C. R. R. Co. v. Turnipseed, 219 U. S. 35; Board of Commissioners of Excise v. Merchant, 103 N. Y. 143; Casey v. United States, 276 U. S. 413; Fong Yue Ting v. United States, 149 U. S. 698; Adams v. New York, 192 U. S. 585; Bailey v. Alabama, 219 U. S. 219.)

      William F. X. Qeoghan, District Attorney {Ralph K. Jacobs of counsel), for respondent.
    The Legislature is invested with the power to regulate the conduct of evil characters. (Ives v. South Buffalo R. R. Co., 201 N. Y. 271; People ex rel. Armstrong v. City Prison, 183 N. Y. 223; People ex rel. Kemmler v. Durston, 119 N. Y. 569; People v. Crane, 214 N. Y. 154; Knoxville Iron Co. v. Harbison, 183 U. S. 13.) The presumption is evidentiary and may be rebutted. (People v. Nibur, 238 App. Div. 233; People v. Adams, 176 N. Y. 351; People v. Persce, 204 N. Y. 397; Casey v. United States, 276 U. S. 413; People v. Cannon, 139 N. Y. 32; People v. Nelson, 234 App. Div. 481.) It was not incumbent upon the People to prove that any of the defendants had knowledge of the evil reputation of the others. (Tenement House Dept. v. McDevitt, 215 N. Y. 160; Commonwealth v. Smith, 166 Mass. 370; Commonwealth v. Mixer, 207 Mass. 141; People v. Greenberg, 134 App. Div. 599; Morrison v. California, 291 U. S. 82.) The defendants were proved guilty beyond a reasonable doubt. (People v. Katz, 154 App. Div. 44; 209 N. Y. 311.)

      William Copeland Dodge, District Attorney (LeRoy Mandle and Felix C. Benvenga of counsel), for respondent.
    The People’s case was fully proved. (People v. Perry, 265 N. Y. 362; People v. Hipple, 263 N. Y. 242; People ex rel. Steckler v. Warden, 259 N. Y. 430; People v. Sugarman, 248 N. Y. 255; People v. Cashin, 259 N. Y. 434; People v. Rosenzweig, 265 N. Y. 323.) The statute is not unconstitutional. (People ex rel. Sinkler v. Terry, 108 N. Y. 1; People v. Crane, 214 N. Y. 154; People v. Grogan, 260 N. Y. 138; Harriman v. Interstate Commerce Comm., 211 U. S. 407; Carey v. South Dakota, 250 U. S. 118; People v. Cannon, 139 N. Y. 32; People v. Adams, 176 N. Y. 351; 192 U. S. 585; People v. Persce, 204 N. Y. 397; People v. Trimarchi, 231 N. Y. 263; People v. Pasquale, 206 N. Y. 598; Board of Commrs. v. Merchant, 103 N. Y. 143; People v. West, 106 N. Y. 293; People v. Hinksman, 192 N. Y. 421; People v. Most, 128 N. Y. 108; State v. Bulot, 175 La. 21; People v. Mancuso, 255 N. Y. 463.)

      Paul Windels,' Corporation Counsel (Paxton Blair, Seymour B. Quel and Ambrose J. Haddock of counsel), for Police Department of the City of New York, amicus curiae.

    It is within the power of the Legislature to pass statutes making certain facts prima facie evidence of other facts, provided only that there is a reasonable relation between the two sets of facts — a requirement which is fulfilled by subdivision 11 of section 722 of the Penal Law. (People v. Nibur, 238 App. Div. 233; People v. Adams, 176 N. Y. 351; People ex rel. Woronoff v. Mallon, 222 N. Y. 456; Casey v. United States, 276 U. S. 413.) Subdivision 11 of section 722 of the Penal Law fulfills all other constitutional requirements with reference to the enactment of criminal statutes. (People v. Stoll, 242 N. Y. 453; People v. Grogan, 260 N. Y. 138; People v. Trimarchi, 231 N. Y. 263; People v. Colantone, 243 N. Y. 134; People v. Van Gaasbeck, 189 N. Y. 408; Woods v. People, 55 N. Y. 515; Brennan v. People, 7 Hun, 171; People v. Pasquale, 206 N. Y. 598; People v. Abeel, 182 N. Y. 415; Lawton v. Steele, 119 N. Y. 226; 152 U. S. 133; People v. Perretta, 253 N. Y. 305; City of Buffalo v. Hawks, 251 N. Y. 588; People v. Crane, 214 N. Y. 154.)
   Crane, Ch. J.

The appeal in these three cases challenges the constitutionality of subdivision 11 of section 722 of the Penal Law. As there appears to be some uncertainty as to the meaning of the section we must at the very beginning analyze its provisions to ascertain just what acts are made criminal. Section 722: “ Any person who with intent to provoke a breach of the peace, or whereby a breach of the peace may be occasioned, commits any of the following acts shall be deemed to have committed the offense of disorderly conduct:

“ * * * Who bears an evil reputation and with an unlawful purpose consorts with thieves and criminals * * * consorting with persons of like evil reputation, thieves or criminals shall be prima facie evidence that such consorting was for an unlawful purpose ” (Subd. 11).

This is the offense and these the acts which must be proved to convict. Let us take them one by one:

First. The People must prove an intent to provoke a breach of the peace or whereby a breach of the peace may be occasioned. What is a breach of the peace? “It is a disturbance of public order by an act of violence, or by any act likely to produce violence, or which, by causing consternation and alarm, disturbs the peace and quiet óf the community.” (People v. Perry, 265 N. Y. 362, 364.) There are two intents mentioned, one, the intent to provoke a breach of the peace, the other, the consorting for an unlawful purpose. The statute is loosely drawn as a meeting of criminals for an unlawful purpose is a meeting with intent to provoke a breach of the peace,- or- whereby a breach of the peace may be occasioned. The combination of intents, however, indicates that the association of these evil-minded persons must be to do or plan something unlawful. The consorting alone is no crime. The prima facie evidence provision in this section, however, would apply to the intent to provoke a breach of the peace as well as to the unlawful purpose.

Second. There must be proof of defendant’s evil reputation. Reputation is a very indefinite and uncertain matter to prove; one neighbor may strenuously disapprove of habits or conduct which another neighbor may consider harmless. In this connection where we find the words in a criminal statute we must assume that they mean “ bad ” reputation; that the character imputed to the person in the community is bad, generally bad. That bad reputation is a fact which the law recognizes as capable of proof, see People v. Pasquale (206 N. Y. 598); Woods v. People (55 N. Y. 515); Brennan v. People (7 Hun, 171).

Third. The prosecution must prove that this bad person consorts with thieves and criminals. These words must be examined or else we go astray. The associates must be thieves and criminals, that is, present wrongdoers. Of coursé this does not mean that they must be in the act of committing crime, but that they by course of conduct, manner of living, recent criminal records and other facts and circumstances are shown to the trier of facts to be people who have not reformed, but remain violators of the law. We would never go so far, I am sure, as to say that because a man had been in prison he remained a criminal all his Ufe. Some men, as we know, with no criminal propensities at all have made mistakes, been overtaken by temptation and paid the penalty the State demands. We would not add to their burden by saying or even intimating that they should be shunned or classed as criminals. The people this section points at are those who from their records and present lives are continuing in crimes of a serious nature, such as robberies, burglaries, kidnappings, forgeries and the like. Each case will depend upon the evidence. Sufficient for this analysis, that the associates must be this kind of persons, “ thieves and criminals ”— a general description of a present state of being. “ Consort,” what does this word import? It connotes a union; a continuity of companionship ; the noun gives a better expression to the idea — a partner or colleague.

Fourth. And to all these facts is to be added the purpose of this companionship, which must be for an “ unlawful ” purpose.

Here then is the crime. If a person of bad reputation, with intent to provoke a breach of the peace, keeps company with criminals, makes them his associates, for an unlawful purpose, he is guilty of disorderly conduct. Nothing unconstitutional about such a statute. There may be difficulty in finding the evidence or in proving the case, but when proved, an offense is committed not unlike “ vagrancy,” which has been in the statute books for many a day. (Code Crim. Proc. § 887, subd. 10.) It is an attempt to prevent crime by disrupting and scattering the breeding spot.

This section of the Penal Law has not the defects of those statutes in other jurisdictions which have been held invalid. (City of St. Louis v. Fitz, 53 Mo. 582.) An ordinance making it a crime to “ knowingly [associate] with persons having the reputation of being thieves ” was held to be unconstitutional, if mere association were the crime. (See, also, City of St. Louis v. Roche, 128 Mo. 541; and Matter of Smith, 135 Mo. 223; People v. Belcastro, 356 Ill. 144; Stoutenburgh v. Frazier, 16 D. C. App. Cas. 229; People v. Licavoli, 264 Mich. 643.) Mere association of people of ill repute with no intent to breach the peace or to plan or commit crime is too vague a provision to constitute an offense. Neither can reputation alone — bad reputation — be made a crime. Suspicion does not establish guilt. But when we have a person of bad repute in close association and companionship with criminals and thieves, for an unlawful purpose and with intent to breach the peace, we have a set of facts much stronger and more definite than anything in the above cases.

We think these elements comply with the rule that criminal statutes should have a clear meaning and purpose and should not be doubtful and uncertain. (Connolly v. General Construction Co., 269 U. S. 385; People v. Briggs, 193 N. Y. 457, 459.)

One fact which must be proved by the People is left in the first instance to a presumption. The fact that the defendant is found consorting with thieves and criminals shall be prima facie evidence that such consorting was for an unlawful purpose. Is this an unreasonable or unnatural presumption? Is there not here some rational relation between the fact proved and the fact presumed? (Mobile, J. & K. C. R. R. Co. v. Turnipseed, 219 U. S. 35.) Does not experience warn us that when evil persons associate with those who commit crime or have repeatedly been convicted of violating the law, it is all to no good purpose; such close association immediately suggests that some unlawful scheme is being concocted? Besides, the prosecution, even with the aid of this presumption, must still prove to the satisfaction of the judge, beyond a reasonable doubt, that the consorting was in reality for an unlawful purpose; the burden of proof is not shifted. (People v. Cannon, 139 N. Y. 32.)

With this explanation and interpretation of section 722, subdivision 11, or, rather, taking these provisions as they read, the statute is not unconstitutional. The proof, however, is another matter.

The conviction of Arcidiaco and Spitale was obtained on a misreading of this disorderly conduct statute. They were tried as being persons of evil reputation, meeting and conversing together, and convicted solely on their reputation. There is no such crime, as the above explanation makes clear. The Assistant District Attorney with his usual frankness admitted this on the argument so far as to the facts which the evidence established.

The case against Berman, Gambino, Moskowitz, Shanker and Shapiro lacks sufficient proof of consorting with each other for an unlawful purpose. They were seen together for about two minutes.

As to the case from Erie county, wherein the two Pieris, Tronolone and Pema are defendants, we have different circumstances. Sam and Joseph Fieri are brothers. Anthony Pema had been arrested a number of times for violation of the traffic laws, and in 1927 sentenced to Auburn Prison for a crime against nature. Sam Pieri’s record showed that he had been convicted three times for violating the Motor Vehicle Law, and in 1928 for larceny in the second degree. Both men had been arrested on other charges which were dismissed. John Tronolone had a record which showed that he had been found guilty of juvenile delinquency, fined five dollars for gambling and fifteen dollars for disorderly conduct, twenty-five dollars for petit larceny and sentenced in 1932 for possessing burglar’s tools to nine months in Monroe County Penitentiary. Joseph Fieri, by his list of exploits, had been fined twenty-five dollars for gambling, and once had sentence suspended for violating the Traffic Law. Are these men now thieves and criminals within the meaning of the statute, which must be a clear and positive expression of legislative intent to be constitutional? (People v. Shakun, 251 N. Y. 107.) The •Legislature does not say that one who has been convicted of a crime is thereafter to be considered a criminal, or that consorting with such an one is an offense. The persons must be presently living as thieves and criminals. Such is the wording, such must be the meaning. Did these young men consort under such circumstances as to make out a case of disorderly conduct or a prima facie case within the meaning of this section of the Penal Law?

One night at about nine o’clock Officer Felicetta saw these four defendants standing on the corner of Chippewa and Pearl streets in the city of Buffalo, and arrested them. He had seen them on that corner on previous occasions during the past five or six months. He says their reputation is bad. He never saw them do anything wrong, simply talking to one another. Two of them were brothers living at home with their parents. Another officer said the same thing; he did not hear a word that was spoken nor did he see the boys do anything wrong. “ I seen them walk away when they seen us.” The defendants took the stand and swore that they were talking together about possible work, that their meetings were occasional while passing along the street or eating in restaurants.

The offense defined by the section of the Penal Law we have been considering is not made out by such evidence. Four young men, two of them brothers, who have been arrested and convicted of motor law violations and two of them for felonies, with bad reputations, according to the police officers, are seen standing on a public street corner talking: how long is not stated. They are arrested and sent to the penitentiary for six months because they were seen talking together in the street on other occasions. There was not the slightest indication that they had any intent to cause a breach of the peace, or were talking about or planning anything wrong, or that anybody was likely to be disturbed. A very reasonable doubt exists as to whether the defendants were at the time thieves and criminals within the meaning of this act. Like most cases, a question of degree or substance must enter into-the consideration of the evidence under such laws. Persons who have been convicted of crime and served the sentence imposed are not thereafter barred from society or intercourse with other human beings; they are not outcasts,■ nor to be treated as such. The Legislature did not intend to close the doors to reformation, repentance or a new try at life. Whom is a man to talk to if he cannot talle to the friends and acquaintances his position in life has thrown him in with? Perhaps his past life has limited the number and prevents many new ones. The words which have been added to, and included in, this statute show that the consorting must be for an unlawful purpose, some proof of which is furnished by bad reputed persons conspiring with those who, at the present, are thieves and criminals. A person arrested by a policeman but discharged as not guilty cannot in any just or safe sense or by law be termed a criminal.

We think the evidence is lacking in all these three cases to make out the offense charged, and we accordingly reverse the convictions and dismiss the informations.

The judgments should be reversed and the informations dismissed.

Finch, J.

(dissenting). I agree that it was within

the police power of the Legislature to enact the statute in question and that there exists no constitutional barrier; but I go further and hold that upon the record in the case of the appellants Sam Pieri, Joe Pieri, John Tronolone and Anthony Perna a question of fact was presented for the trial court and that the facts as shown in that record are amply sufficient to sustain the conviction.

Obviously the problem which the Legislature had to meet was the continued commission of crime for profit by experienced criminals who rely on some so-called pull or connection for profit or reciprocal favor, somewhere along the line, to escape through the meshes of the law. The problem is not new but of late has been more acute. Must the law-enforcing agencies sit idly by while the known criminals hatch the plan? May the plan be nipped in the bud and the decent citizenry of the State be spared its consummation?

For the solution of this problem the Legislature has enacted section 722, subdivision 11, of the Penal Law. No question of constitutionality remaining, it is submitted that the facts in the case at bar sustain the finding of the trial court and hence this court may not interfere. If the facts in this record are not sufficient, how may this statute be intelligently administered? That the appellants were consorting together must be conceded. That they were persons of evil reputation is testified to by more than one witness who knows the fact of his own knowledge. Moreover, these witnesses are policemen, disinterested save as they are sworn to uphold the law. In addition we have the records of each defendant, an example being that of Sam Pieri, which follows:

Name Sam Pieri. 292 Jersey St.
Alias Samuel Johns, Sam Pieri, Salvatore Pieri. Number of Picture in Gallery 20699 Criminal Record (as far as known)
Arrested in Buffalo, N. Y.
8/ 7/21 Charge Malicious Mischief Dis.
8/24/26 887-1 C.C.P. Sent. Suspended
11/23/26 Gr. Bare. Juv. Del. Dis.
6/22/27 374-282-2 M.V.B. Fined $15.00
10/27/27 Truancy turned over to School Auth.
6/ 5/28 Burg. 3rd. and Gr. Bare. 2nd. (Auto) Arr. with Edwin Graver Cur #20700 Arr. by Bieut. Rogers, Reed, Kelly, Bowers, Bisby, #5 Chge. to Gr. Bare. 2nd Probation Indef.
10/ 4/30 Pet Barceny (Shoplifting) A. M. & A. Store arr. by C. McGee, R. Gustaferro, J. Naples, H. Toomey, HD. Discharged.
1/ 6/31 Charge Robbery 1st Degree stickup in Rochester, N. Y. (Gambling House) Arr. by E. Kenney and H. Toomey HD. turned over to Rochester, N. Y. police No. Disp. on this case.
9/ 2/31 593-B tariff law arr. with John Fusco our #14265 and Anthony Cirineione our #15758 arr. by Reardon and Monro U. S. Immigration Service No Disp.
Charge 60-20-6 C.O. Traffic B. Murphy, MCD. Sent. Suspended. 9/22/31
“ 887-1 C.C.P. arr. by J. Grotty HD. Discharged. 10/13/31
“ Robbery 1st Degree arr. with Pasquale Grasante our #26553 Jos. Graziano Our #24803 and Jos. Pilato Our #12840 Arr. by Zimmerman, - Maul, Griffis, McNamara, Matthews, and Wunderlich Hd. Turned over to State Police at Wanakah, N. Y. 4/23/33
“ Gr. Larc. 2nd Degree (Auto) Arr. with Joseph Graziano our #24803 Pasquale Grisante Our #26553 and Joseph Pilato Our #12840 Arr. by Matthews, McNamara, Maul, Wunderlich, and A. Zimmerman, HD. Indictment. Dism. 5/ 1/33
“ Robbery 1st Degree Arr. by E. Kenney, H. Toomey, & W. Holtz, F. O’Neil Hd. Dis. 5/28/33
“ 60-14 — 2 C. O. (Traffic) Speeding Parker MCD. Sentence Suspended. 9/ 4/33
“ 722-11 P. L. arr. by Asst. Chief of Dets. Lieut. V. Connors, Felicetta, Mahoney, W. Sullivan, G. Beyers, and R. Conroy HD. Case Pending. 5/24/35

While the State at all times has the burden of proving the guilt beyond a reasonable doubt of these defendants under this statute, yet where the State, as here, has shown that the defendants bore evil reputations and were found consorting with persons of like evil reputations, thieves or criminals, the statute provides that this shall constitute prima facie evidence that such consorting was for an unlawful purpose whereby a breach of the peace may be occasioned. This is in accordance with the well-known principle often employed in the law that one fact proven may be prima facie evidence of another where there is a rational connection between the fact proved and the fact presumed. (Mobile, J. & K. C. R. R. Co. v. Turnipseed, 219 U. S. 35; Board of Commissioners of Excise v. Merchant, 103 N. Y. 143; People v. Cannon, 139 N. Y. 32.) It then becomes necessary for the defendants, and they have the opportunity, to go forward and show that the purpose of their consorting is not unlawful. This the defendants attempted to do, but the learned trial court, as it had a right to do, disbelieved their testimony. The credibility and weight to be given testimony lies within the sole province of the trial court and the County Court. Moreover, it is submitted that even if it were otherwise, a reading of this record shows ample justification for the finding of the trial court and warrants the conviction of these defendants.

There is no assumption in this opinion that a person, arrested by a policeman but discharged as not guilty, can be a criminal. Reference has been made to the exhibits in the cause since wThat they show fairly bears on the issues and was before the trial court.

I, therefore, vote to affirm.

Lehman, O’Brien, Htjbbs and Loughran, JJ., concur with Crane, Ch. J.; Finch, J., concurs except as to defendants Fieri et al., as to whom he dissents in opinion; Crouch, J., not sitting.

Judgments reversed, etc.


author: Crane, Ch. J.

text:
    The People of the State of New York, Respondent, v. Harry Sohn, Appellant.

      (Argued October 21, 1935;
    decided January 7, 1936.)

      Arthur H. Rose and Leonard E. Turits for appellant.
    There was a failure of proof as to that part of subdivision 1 of section 887 of the Code of Criminal Procedure reading, “ lives without employment.” (Matter of Case, 214 N. Y. 199; Harris v. State of Texas, 229 S. W. Rep. 875.) There was failure of proof of “ lack of visible means of support.” (People v. Cramer, 139 Misc. Rep. 545; Matter of Forbes, 11 Abb. Pr. 52; People v. Schmidt, 220 N. Y. Supp. 647.)

      William Copeland Dodge, District Attorney (Felix C. Benvenga and LeRoy Mandle of counsel), for respondent. The evidence amply justified conviction. (Branch v. State, 73 Tex. Cr. Rep. 471; Matter of Forbes, 19 How. Pr. 457; State v. Burton, 178 S. W. Rep. 219; Powell v. State, 103 Tex. Cr. Rep. 1; Tenement House Dept. v. McDevitt, 215 N. Y. 160; People v. Cramer, 139 Misc. Rep. 545; Carter v. State, 126 Ga. 570; People v. Maxwell, 83 Hun, 157; People v. Willi, 109 Misc. Rep. 79; 194 App. Div. 946; Brown v. State, 4 Ala. App. 122; Gordon v. People, 33 N. Y. 501; People v. Leonardo, 199 N. Y. 432; People v.
      Trombino, 238 App. Div. 61; 262 N. Y. 689; People v. Smith, 114 App. Div. 513; People v. Sugarman, 248 N. Y. 255; People v. Rosenzweig, 265 N. Y. 323; People v. Cashin, 259 N. Y. 434.)
   Crane, Ch. J.

This is an appeal from a judgment of conviction in the Magistrate’s Court of the city of New York for an alleged violation of subdivision 1 of section 887 of the Code of Criminal Procedure, sentencing the defendant to a term of three months in the workhouse. The judgment was affirmed by the Court of Special Sessions. The appeal comes here upon the certificate of a judge of this court, pursuant to section 520 of the Code of Criminal Procedure.

Title VI of the Code of Criminal Procedure is of proceedings respecting vagrants. Who are vagrants? Section 887 tells us in the following words:

1. A person who, not having visible means to maintain himself, lives without employment.”

The evidence is very meager to sustain this charge, and is given by the police officer as follows:

On February 25th, at about 3:50 p. m., in 1520 Broadway, a poolroom, I observed the defendant and another man, now here, downstairs, in the poolroom, talking. I went over to the defendant and said, ' What are you doing down here?’ And this defendant said, ‘ I ain’t doing nothing.’ I said, ‘ Are you working?’ He said, ‘ No, I am not.’ I said, ‘ How long has it been since you have worked?’ He said, ‘ About eight months.’ I said, ' How do you get along?’ He said, I have friends to take care of me.’ I said, Where is the last place you have worked?’ He gave me some place in the public market, your Honor. I said, ‘ What are you doing with this fellow, Miller?’ He said, 1 Nothing, just hanging around. I am off the racket; I don’t do that any more.’ I said, ‘ When did you stop?’ He said, ‘ I have been shot about four months ago; I was in the hospital about eight weeks. Ever since I come out of the hospital I ain’t doing nothing.’
“ Q. Did you search the defendant? A. Yes, sir.
“ Q. Did you find anything on him? A. Yes, sir; fifteen cents.
Q. When did he say he worked last? A. About eight months ago.”

This is all the testimony for the prosecution.

The defendant took the stand and stated that he lived at 3505 Ro chambean avenue, Bronx, and continued: “ I worked three weeks ago in a shoe-store, Saturdays and extra, in Fordham Road. I have a home in New York and I have a sister with a home in New York; and she told me she will help me find employment. I have made a few errors in the past, I will admit; but I am trying to do the best I can now. I was in Loew’s at the time. I come out of the picture-show and I went downstairs to the poolroom for a minute or so.”

There was some evidence about the reputation of the defendant and of his previous convictions, but this is all that bears upon the question of vagrancy, and we give the evidence to emphasize the point that there is something lacking to make out the offense.

Taking the words of subdivision 1 as they read would put in jail a great many people in these days who are out of employment and cannot find work. Our relief rolls testify to persons who have no visible means to maintain themselves and five without employment. They are maintained by the public through sheer necessity. This section has reference to those hangers-on of society, ne’er-do-wells, loafers who stand about our street corners and public places without any visible means of employment and refuse to work when employment can be had. A man does not become a vagrant who wants a job and cannot find it. He is a vagrant when a job of some kind can be obtained and he prefers to loaf around and do nothing, having apparently no ascertainable means of support. A vagrant is one who is apt to become a public charge through his own laziness. The neglect to seek employment seems essential, since without it mere misfortune would be punishable. (Matter of Jordan, 90 Mich. 3.) In Matter of Karnstrom (297 Mo. 384) the statute provided: “ Every person found tramping or wandering around from place to place without any visible means of support, shall be deemed a vagrant.” It was held constitutional. In Matter of Clancy (112 Kan. 247) the statute read: “ Any person engaged in any unlawful calling whatever, or who shall be found loitering without visible means of support in any community, or who, being without visible means of support, shall refuse to work when work at fair wages is to be procured in the community * * *,” is a vagrant.

The Law Revision Commission of this State has collected the general provisions of the vagrancy statutes of the various States from which it appears that the common requirement is the refusal to work when work can be had (Legislative Document [1935], No. 60 [K], p. 34), wherein it was stated regarding this section and subdivision: “ It penalizes a state of being which the accused may, in times of unemployment, be helpless to remedy. * * * If the New York statute is to be construed to mean that it does not include persons without visible means of support who have made an honest effort to procure employment, it is defective in not so providing.”

The Commission refers us to the California statute as a model for legislation. It reads: “Every person * * * without visible means of living who has the physical ability to work, and who does not seek employment, nor labor when employment is offered him, * * * is a vagrant.” (California Penal Code [Deering, 1931], pt. 1, tit. 15. See ch. 2, § 647.)

We think this is what our statute does mean when the words “ vagrants,” “ visible means of support ” and “ without employment ” are used. Long usage has fixed their significance. These words taken together indicate that the thing aimed at is the loafer or lazy man, the one who hangs about streets and public places without employment or visible means of support when he could with effort obtain something to do. It would be absurd to say that one physically unable to work or an able-bodied person who could not get work came within the meaning of this section.

The evidence against Sohn did not bring him within this definition of “ vagrancy.” That he was not working was proved, and besides, he admits it. He had a criminal record, but this did not make him a vagrant. He said he had a homeland was receiving help from his family, that he had tried to find employment and could not. This evidence is uncontradicted. So far as the record shows he was one of the unemployed, who could not find a job. Even though our suspicions, growing out of his past record, incline us to believe that he did not want to work, we cannot put men in jail even for minor offenses on mere suspicion.

The judgments should be reversed and the information dismissed.

Lehman, O’Brien, Hubbs, Loughran and Finch, JJ., concur; Crouch, J., not sitting.

Judgments reversed, etc.


text:
    Harry M. Schaffer, Respondent, v. City Bank Farmers Trust Company, Appellant, Impleaded with Another.
    (Argued November 21, 1935;
    decided January 7, 1936.)

      Neile F. Towner, William Harvey Reeves and Lester Kissel for appellant.
    Trial of the action required the examination of a long account and was properly referred under section 466 of the Civil Practice Act. [Spence v. Simis, 137 N. Y. 616; Cassidy v. McFarland, 139 N. Y. 201; Brooklyn Public Library v. City of New York, 240 N. Y. 465; White v. Bank of Angola, 130 Misc. Rep. 99; Viets v. Union Nat. Bank, 101 N. Y. 563; Van Alen v. American Nat. Bank, 52 N. Y. 1; Parks v. Knickerbocker Trust Co., 137 App. Div. 719; France Milling Co. v. First Nat. Bank, 138 App. Div. 645; Place v. Chesebrough, 63 N. Y. 315; National Shoe & Leather Bank v. Baker, 90 Hun, 277; 148 N. Y. 581; Hill v. Reynolds, 119 App. Div. 689; Connor v. Jackson, 53 App. Div. 323; Weber & Co. v. Hearn, 7 App. Div. 306; Assets Realization Co. v. Lockwood, 245 N. Y. 520; Irving v. Irving, 90 Hun, 422; 149 N. Y. 573; People v. Wood, 121 N. Y. 522.) Trial of the action does not require the decision of difficult questions of law. (Schaffer v. City Bank Farmers Trust Co., 239 App. Div. 531; White v. Bank of Angola, 130 Misc. Rep 99; National Shoe & Leather Bank v. Baker, 90 Hun. 77; 148 N. Y. 581.)

      George B. Smith for respondent.
    The trial of the action will not require the examination of a long account. [Spence v. Simis, 137 N. Y. 616; Cassidy v. McFarland, 139 N. Y. 201; Steck v. Colorado F. & I. Co., 142 N. Y. 236; Brooklyn Public Library v. City of New York, 240 N. Y. 465; Amsden v. Traders Nat. Bank, 182 App. Div. 474; Kings County Lighting Co. v. Woodbury, 177 App. Div. 451; Shipman v. Bank of New York, 126 N. Y. 318; Baldwin Bank v. Smith, 215 N. Y. 76; General Fire Assur. Co. v. State Bank, 177 App. Div. 745; Amsden v. Traders Nat. Bank, 182 App. Div. 474; Camp v. Ingersoll, 86 N. Y. 433; Morse v. Morse Drydock Co., 111 Misc. Rep. 715; 191 App. Div. 923.) The trial of the action will require the decision of difficult questions of law. (German Sav. Bank v. Friend, 61 N. Y. Super. Ct. 400; Clark v. Saugerties Sav. Bank, 62 Hun, 346; Lund v. Seamans Bank, 23 How. Pr. 258; Parks v. Knickerbocker Trust Co., 137 App. Div. 719; New York Trust Co. v. Braham, 126 Misc. Rep. 462; American Defense Society v. Sherman Nat. Bank, 225 N. Y. 506; Schoen v. Security Bank, 81 Misc. Rep. 173; Spiegel Realty Corp. v. Gotham Nat. Bank, 121 Misc. Rep. 547; De Witt v. Walter, 9 N. Y. 571; Briggs v. Parir ridge, 64 N. Y. 357; Bank of N. Y. N. D. Assn. v. A. D. & T. Co., 143 N. Y. 559; Porges v. U. S. Mortgage Sc, Trust Co., 203 N. Y. 181; Claflin v. Farmers’ & Citizens’ Bank, 25 N. Y. 293; Voltz v. Blackmar, 64 N. Y. 440.)
   Hubbs, J.

The appeal in this case was permitted by the Appellate Division of the third department which has certified to us the following question: Is this action properly referable under section 466 of the Civil Practice Act?

That section reads in part:

§ 466. Compulsory reference. The court, of its own motion, or upon the application of either party, without the consent of the other, may direct a trial of the issues of fact, by a referee, where the trial will require the examination of a long account on either side and will not require the decision of difficult questions of law.”

In a general way the complaint alleges that the bank account in question was opened by the respondent Harry M. Schaffer and the defendant Howard C. Lake; that the respondent at all times was and now is the owner of such bank account; that the signature card provided that the bank should honor checks when signed by the respondent only, and that there is a balance due upon that account of $15,879.14. The material allegations of the complaint are denied by the appellant’s answer. The appellant as a defense and as a partial defense pleaded that the account has been paid in full or at least partially paid. That defense is based upon the fact that the bank paid out the money upon checks drawn by Pauline M. Schaffer, either individually or as administratrix of the estate of her husband, Morris P. Schaffer, deceased. It was stipulated by the parties that evidence of that fact might be received without an amendment of the answer.

The claim of the appellant is that the bank account was opened in the name of Schaffer and Lake as a matter of convenience; that all of the funds in the account as a matter of fact belonged to Morris P. Schaffer, deceased, who during the time in question was a partner of the defendant Lake and the sole owner of the account standing in the name of Schaffer and Lake; that the respondent has no interest in the account and, therefore, is not entitled to recover against appellant. The defendant Lake does not claim any interest in the account.

The bank account was made up of various deposits and was drawn out by means of 56 checks. There is no contest about the date or amount of each deposit or the date or amount of each check. It is quite clear from the wording of the complaint that it does not allege a long account within the meaning of the statute and that the trial will not require the decision of difficult questions of law.”

The contention of the appellant is that the only way it has of proving its defense that the money did not belong to the respondent is by showing where the money came from which was deposited in each item of deposit and where the money went to and for what purpose drawn out by each check, and that to establish those facts will involve an examination of a long account within the meaning of the statute. A compulsory reference was granted at the Trial Term but the order was reversed by the Appellate Division.

The correct answer to the question certified can be determined by an examination of the three following cases: Steck v. Colorado Fuel & Iron Co. (142 N. Y. 236); Irving v. Irving (90 Hun, 422; affd., 149 N. Y. 573); Snell v. Niagara Paper Mills (193 N. Y. 433).

In the Steck case Judge Earl wrote the leading opinion upon the subject and traced the history of the practice in this State from colonial days. It was there decided that where a complaint on contract was put in issue by the answer which also set up a counterclaim consisting of a long account, a compulsory reference could not be granted. After referring to the history of the statute and to many cases, he wrote: “ This discussion, therefore, comes to this: If the plaintiff brings his action upon a long account, then it is such as was referable prior to 1777, and as the examination of a long account is required on his side the defendant cannot defeat a reference by anything he may set up in his answer by virtue of the statutes allowing set-offs and counterclaims. If the plaintiff’s 'cause of action be upon contract for a definite sum of money, or for damages, ex contractu, and his cause of action be not gainsaid by the defendant, and the defendant sets up a counterclaim which requires the examination of a long account, then the case is such as would have been referable under the act of 1768. But if in such actions the plaintiff’s cause of action be disputed, then a case is presented, which, prior to 1777, gave the parties the absolute right to jury trial, and that right cannot be taken away or destroyed by anything which the defendant may set up in his answer” (p. 250).

It will be noticed that the conclusions reached turn upon the question of whether a cause of action alleged in a complaint is denied by the answer. If so and the cause of action alleged does not involve a long account, then a defendant cannot make the action one in which he is entitled to a compulsory reference by anything which he may set up in his answer. However, if a cause of action on contract alleged in a complaint is not denied in the answer but the answer pleads a counterclaim or defense which requires the examination of a long account, a case is presented where a compulsory reference may be granted.

In the Irving case the action was on a promissory note. The answer alleged that the note was without consideration and denied that any amount was due on it. The answer set forth without being labeled either as a counterclaim or set-off certain facts involving stock transactions out of which it was alleged that a false account against the defendant was created for which it was induced to give the note in suit. It was held that although the cause of action set out in the complaint was non-referable, nevertheless, the facts set out in the defendant’s answer would require evidence in regard to the stock transactions and would necessarily involve the examination of a long account; therefore, that a compulsory reference was proper. At first glance, it would seem that this case was in conflict with the Stech case. That case is distinguished, however, by the fact that the allegation of the complaint that the note was given by the defendant was not denied in the answer and Judge Paekee, writing for the General Term, pointed out that distinction.

In the Snell case the answer put in issue all the material allegations of the complaint and the defendant by answer sought to set off against a possible recovery by the plaintiff an independent claim for damages. This court decided that as the complaint did not set up a long account, the plaintiff was entitled under the Constitution to a trial by jury, and as the answer denied the allegations of the complaint, a compulsory reference could not be granted although the answer set up a long account. Judge Geay, writing for the court, said, referring to the Stech case: The conclusion was reached that, if the plaintiff’s cause of action be upon contract for a definite sum of money, or for damages ex contractu, and the cause of action be disputed, then there is an absolute right to a jury trial, which could not be taken away, or destroyed, by anything which the defendant might set up in the answer ” (p. 437).

Referring to the Irving case, he pointed out that the answer in that case did not deny the material allegations of the complaint. He then said that the decision in the Irving case in no respect, disturbed our conclusion in Stech v. Colorado F. & I. Co. [142 N. Y. 236]. * * *

In affirming Irving v. Irving, what we upheld was the jurisdiction of the court to order a compulsory reference of the issues in a case where, although the cause of action set up in the complaint appears on its face to be non-referable, the defense interposed thereto shows that the trial of that issue will, necessarily, involve a long account. In this case, there is an absolute denial of the contract, upon which the plaintiff rests his cause of action, and the counterclaim alleged constituted a distinct and independent cause of action.”

The decision by the General Term in the Irving case, as explained in the Snell case, was simply that a compulsory reference could be granted as the answer did not deny the material allegations of the complaint but did set up facts in defense which necessitated the examination of a long account.

The results of those decisions are that where a complaint alleges a non-referable cause of action upon contract and the answer denies the cause of action alleged in the complaint and sets up by way of counterclaim or defense facts which will lead necessarily to the examination of a long account, a compulsory reference cannot be granted.

On the other hand, where a complaint alleges a non-referable cause of action on contract and the answer does not deny the cause of action alleged and sets up facts either by way of counterclaim or defense which will necessarily involve the examination of a long account, a compulsory reference may be granted. In this case the complaint set up a non-referable cause of action on contract. The answer denied the material allegations of the complaint. Therefore, a compulsory reference was improperly granted although the appellant under the answer would be required to prove facts which would constitute a long account.

The order should be affirmed, with costs, and the question certified answered in the negative.

Crane, Ch. J., Lehman, Crouch, Loughran and Finch, JJ., concur; O’Brien, J., not sitting.

Order affirmed, etc.


author: Crouch, J.

text:
    In the Matter of William Scahill, Respondent, against Valentine F. Drzewucki et al., as Members of the Board of Education of Union Free School District No. 6 of the City of Lackawanna, Appellants. In the Matter of Peter McGovern, Respondent, against Valentine F. Drzewucki et al., as Members of the Board of Education of Union Free School District No. 6 of the City of Lackwanna, Appellants.

      (Argued November 19, 1935;
    decided January 7, 1936.)

      John J. Sullivan, Albert M. Kraus and John J. Sullivan, Jr., for appellants.
    The positions are subject to civil service regulation in the competitive class. (Cons. Laws, ch. 7, §§ 2 and 9; Matter of McCarthy, 106 Misc. Rep. 193.) For a person to be duly qualified for a position in the competitive class under civil service regulations, the regulations must be observed. (Rowley v. Rochester, 34 Misc. Rep. 291; People ex rel. Davie v. Lynch, 164 App. Div. 517; People ex rel. Moriarty v. Creelman, 152 App. Div. 147; Chittenden v. Wurster, 152 N. Y. 345.) One who asserts title to a position in the civil service must be qualified. (People ex rel. Hannan v. Board of Health, 153 N. Y. 513; People ex rel. Krushinsky v. Martin, 36 N. Y. Supp. 851; Matter of Walsh, 239 App. Div. 757; Matter cf Meehan v. Flaherty, 119 App. Div. 128.)

      Everette H. Hunt for respondents.
    Appointments to positions in the civil service are not absolutely dependent on examinations. (N. Y. Const, art. 5, § 9.) The original appointment of the petitioners to administrative positions in the school system was valid. (Culp v. City

      of New York, 146 App. Div. 326.) Subdivision 2-a of section 872 of the Education Law (Cons. Laws, ch. 16) supersedes the Civil Service Law (Cons. Laws, ch. 7) i-f there be a conflict. (Berlinbach v. Bischoff, 137 Misc. Rep. 719.) The petitioners, having been dismissed without charges having been preferred and a hearing held, are entitled to reinstatement and back salary. (Cons. Laws, ch. 16, § 872, subd. 2-a.)
   Crouch, J.

On July 6, 1922, the Board of Education of Union Free School District No. 6 of the city of Lackawanna appointed the petitioner Scahill school mechanic, and the petitioner McGovern school mechanic’s helper. The petitioners continued to serve in those positions until January 15, 1934, when they were summarily removed by the Board of Education. In mandamus proceedings for reinstatement, alternative orders have been granted by the Special Term and affirmed by the Appellate Division. In each proceeding there has been certified to this court the following question: Is the petitioner entitled to reinstatement as matter of law? ”

All relevant law is so fully presented and argued in the two conflicting opinions below as to render unnecessary more than a brief statement of the reasons for our decision.

It seems to be conceded and, in any event, there can be no doubt, that the two positions were and still are within the competitive class of the classified civil service, and, therefore, subject to the applicable provisions of the Civil Service Law (Cons. Laws, ch. 7) and rules. (Cf., inter alla, Civil Service Law, §§ 2, 9, 14; Rule IV, subd. 2; Rule VIII.)

It is also conceded that neither petitioner ever took a civil service examination nor was either one ever certified for appointment by a Civil Service Commission. No eligible list was ever prepared nor, so far as appears, was its preparation ever requested. Neither petitioner was shown to have been specially exempted from examination.

The claim of the petitioners, as set forth in the petitions, seems to rest on the assumption that the Civil Service Law did not apply to administrative employees of a board of education, except so far as that law and the regulations based thereon fixed a probationary period; and that having served the required probationary period, the petitioners, under the provisions of subdivision 2-a of section 872 of the Education Law (Cons. Laws, ch. 16), were entitled to hold their positions during good behavior, etc. The assumption was unwarranted. The claim now made is that they were legally appointed under the Constitution and the Civil Service Law, since the State Civil Service Commission had held that it was impracticable to determine merit and fitness for such positions by examination. The fact of such holding is not alleged in the petitions but appears incidentally as a hearsay statement twice removed in a supporting affidavit. Even though we consider the statement as an allegation the denial of which raises an issue of fact, the case for the petitioners is not saved. We may grant the truth of the fact alleged, and yet hold, as we do, that the determination of the Commission was subject to judicial review within the limits stated in People ex rel. Schau v. McWilliams (185 N. Y. 92), and that the positions were clearly of a land where merit and fitness were capable of ascertainment by examination.

Under the conceded facts, therefore, the petitioners must fail. The appointments were not made in accordance with the provisions of the Constitution and the Civil Service Law and regulations. Having no legal rights, the petitioners were subject to removal at will. (People ex rel. Hannan v. Board of Health, 153 N. Y. 513.)

In each case, the orders should be reversed, with costs in all courts, and the petition dismissed. The question certified should be answered in the negative.

Crane, Ch. J., Lehman, O’Brien, Hubbs, Loughran and Finch, JJ., concur.

Orders reversed, etc.