text:
    Edna D. Ely, Appellant, v. James W. Dolen, Respondent, Impleaded with Others. John W. Ely, Appellant, v. James W. Dolen, Respondent, Impleaded with Others.

      Negligence — motor vehicles — injury from collision between two cars — ■failure of proof of liability of husband, for negligence of driver of wife’s car.

      Ely v. Dolen (2 eases), 219 App. Div. 726, 727, affirmed.
    (Argued December 2, 1927;
    decided December 16, 1927.)
    Appeal, in each of the. above-entitled actions, from a judgment, entered April 20, 1927, upon an order of the Appellate Division of the Supreme Court in the second judicial department, reversing a judgment in favor of plaintiff entered upon a verdict. The first action was to recover for personal injuries alleged to have been sustained by plaintiff through the negligence of defendant; the second, by the husband of the plaintiff in the first, to recover for loss of services and expense arising from her injuries which were received as the result of the collision of the automobile in which she was riding with one owned by defendant-respondent’s wife. The Appellate Division held that there was a total failure of proof to establish the liability of defendant-respondent for the conduct of the driver of his wife’s car.

      Otho S. Bowling and Robert H. Elder for appellant.

      John J. Fitzgerald, William J. Mahon and James S. Regan, for respondent.
   Judgment, in each case, affirmed, with costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Andrews, Lehman, Kellogg and O’Brien, JJ.


source: Caselaw Access Project

license: Public Domain

text:
    Mattie W. Miller, as Administratrix of the Estate of George C. Miller, Deceased, Appellant, v. Schenectady Railway Company, Respondent.

      Negligence — railroads — motor vehicles — automobile crossing tracks, struck by trolley caí--complaint dismissed in action to recover for death of driver.

      Miller v. Schenectady Ry. Co., 218 App. Div. 797, affirmed.
    (Argued December 2, 1927;
    decided December 16, 1927.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered December 6, 1926, unanimously affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term in an action to recover for the death of plaintiff’s intestate alleged to have been occasioned through the negligence of defendant. Intestate while driving his automobile across defendant’s tracks near stop 15 on the Albany-Schenectady road was struck by one of defendant’s cars and killed. The trial court dismissed the complaint on the ground that the evidence showed negligence on the part of intestate.

      Walter A. Fullerton for appellant.

      Daniel Naylon for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Cardozo, Ch. J., Pound, Crane, Andrews, Lehman and O’Brien, JJ. Not sitting: Kellogg, J.


text:
    Edwin Smith, Respondent, v. Northwestern Fire and Marine Insurance Company, Appellant. (Two Cases.)
    (Submitted December 12, 1927,
    decided December 16, 1927.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 246 N. Y. 349.)


author: Crane, J.

text:
    Seneca Wire and Manufacturing Company, Appellant, v. A. B. Leach & Company, Inc., Respondent. Lucian E. Kinn, Appellant, v. A. B. Leach & Company, Inc., Respondent.
    Sale — rescission — false representations — evidence — action to recover price paid — erroneous exclusion of letter containing admissions written on defendant’s letter paper by its lawyer and signed^ with its name — erroneous exclusion of proof that plaintiff had been referred by defendant to its attorney — sufficiency of evidence to make materiality of false representations question for jury — action at law on rescission to recover price paid proper — no distinction between proof required in such action and in one in equity for rescission.
    1. In an action to rescind a purchase of securities and recover back the price paid, on the ground that it was made in reliance upon false representations of the defendant that application would be made for listing the securities on the New York Stock Exchange and of its agent that application had in fact already been made and that the securities “ would be listed,” it was error to exclude a letter written by defendant’s lawyer on its letter paper and signed with its name stating that “ there never was any idea whatever of listing them,” where it was admitted that the writer was the attorney for the defendant at all the times referred to and his authority to write and sign the letter was conceded. Offered proof that plaintiff had been referred to the New York office of defendant and to the attorney was also improperly excluded.
    2. Evidence that plaintiff’s president told defendant’s agent that they only desired to purchase listed securities or those which were to be listed; that there is value in the statement that application is to be made for listing, as it is a factor in purchasing; that securities and corporations are investigated with care when application is made to list them and that plaintiff accepted the statement that the application to list meant listing and took it for granted the corporation knew what the requirements were and that it would not make application to list securities that were not of a quality to pass requirements, is sufficient to make the materiality of the false representations a question for the jury.
    3. An action at law on the resci sión to recover the price paid was proper. No equitable relief was required and an action in equity for rescission would be inappropriate. No distinction exists between the nature of the proof required in the action at law or the action in equity and an examination of the evidence shows that when plaintiff had finished its case a cause of action had been made out entitling it to relief. It was, therefore, improper to dismiss the complaint.

      Seneca Wire & Mfg. Co. v. Leach & Co., 219 App. Div. 702, reversed.

      Kinn v. Leach & Co., 219 App. Div. 702, reversed.
    (Argued November 28, 1927;
    decided January 10, 1928.)
    Appeal, in each of the above-entitled actions, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered January 24, 1927, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term.

      Robert McC. Marsh and Robert P. Patterson for appellant.
    It was error to dismiss the complaint, because a complete cause of action was established, based on the misrepresentation that an application to list the notes had already been made. (Haessig v. Gregory, 197 App. Div. 111; Vail v. Reynolds, 118 N. Y. 297; Weigel v. Cook, 237 N. Y. 136; Heckscher v. Edenborn, 203 N. Y. 210; Schank v. Schuchman, 212 N. Y. 352; Carr v. National Bank & Loan Co., 167 N. Y. 375; Talmadge v. Sanitary Security Co., 31 App. Div. 498; Bloomquist v. Farson, 222 N. Y. 375; Moore v. Abbey, 213 App. Div. 787; Lauer v. Raymond, 190 App. Div. 319; Delano v. Rice, 23 App. Div. 327; Smith v. Countryman, 30 N. Y. 655.) It was error to dismiss the complaint, because a complete cause of action was established, based on the breach of the agreement to make application for listing, which was an essential condition in the transaction. (Lauer v. Raymond, 190 App. Div. 319; Callanan v. Keeseville, etc., R. Co., 199 N. Y. 268; Black on Rescission of Contracts, § 213; Westview Savings Bank v. Zook, 16 Ky. L. R. 158; American Union Life Ins. Co. v. Wood, 57 S. W. Rep. 685; Seymour v. Detroit Copper & Brass Mills, 56 Mich. 117; Meinershagen v. Taylor, 169 Mo. App. 12; Continental Ins. Co. v. Equitable Trust Co., 127 Misc. Rep. 45; 219 App. Div. 711.) It was error to exclude the letter received by plaintiff from defendant, which was offered to prove there was never any intention to have the securities listed. (Adams v. Gillig, 199 N. Y. 314; Ritzwoller v. Lurie, 225 N. Y. 464; Deyo v. Hudson, 225 N. Y. 602; Fox v. Duffy, 95 App. Div. 202; Moore v. Abbey, 213 App. Div. 787; Watkins v. Watkins, 197 App. Div. 489; Todd Protectograph Co. v. Wells Fargo & Co., 111 Misc. Rep. 282; Bush v. Miller, 13 Barb. 481; Scholes Co. v. Oppenheim, 136 N. Y. Supp. 37.) It was error to exclude the other letters offered by the plaintiff which passed between the parties and their attorneys. (Gould v. Cayuga County National Bank, 86 N. Y. 75; Sarantides v. Williams, Belmont & Co., 180 N. Y. Supp. 741; Knickerbocker Trust Co. v. O’Rourke Engineering Co., 124 App. Div. 210; Anderson v. Smitley, 141 App. Div. 421.)

      Charles E. Gately, Harold H. Corbin and Elmer W. Maher for respondent.
    Plaintiff failed to prove any cause of action and the court properly dismissed the complaint at the close of plaintiff’s case. (Vail v. Reynolds, 118 N. Y. 297; Rothschild v. Mack, 115 N. Y. 1; Reno v. Bull, 226 N. Y. 546; Lambert v. Elmendorf, 124 App. Div. 758; Southern Dev. Co. v. Silver, 125 U. S. 247; Machine Co. v. McKay, 161 N. C. 587; Downey v. Finucane, 205 N. Y. 251; Morris v. Talcott, 96 N. Y. 100; Constant v. Rochester, 133 N. Y. 640; Meyer v. Amidon, 45 N. Y. 169; Kountze v. Kennedy, 147 N. Y. 129; Schwenk v.
      Naylor, 102 N. Y. 686.) The plaintiff failed to make out a cause of action on a breach of an agreement to make application for listing. (Black on Rescission of Contracts, § 213.) The letters were properly excluded. (Adams v. Clark, 239 N. Y. 403; Hubbell v. Meigs, 50 N. Y. 480; Lytle v. Crawford, 69 App. Div. 273.)
   Crane, J.

At the end of the plaintiff’s case the complaint was dismissed. The judgment of dismissal has been affirmed by the Appellate Division, two of the justices dissenting. We are of the opinion that the facts proved made out a cause of action, and that the rulings below must be reversed.

A. B. Leach & Company, Inc., is a New York corporation engaged in the business of selling and marketing corporate securities. Mr. V. M. Bates was its duly authorized salesman and representative. The plaintiff is an Ohio corporation, of which Lucian E. Kinn is president and general manager. The corporation, and the president individually, bought securities of the defendant through Bates, but in this opinion I shall speak of but one plaintiff, as the evidence is the same for both. Kinn told Bates, when approached about buying securities, that the company was considering the purchase only of listed securities, because the funds available were surplus funds from inventory and might be needed on quick notice to put back in the business, and also as an additional safety. Bates recommended eight per cent notes of the Island Oil and Transport Corporation, calling attention to the fact that application would be made to list the securities. This occurred in September, 1921. On the 23d of that month the defendant, through its Cleveland office, wrote the plaintiff full particulars about these eight per cent participating secured gold notes, and stated: The common stock of the company is listed on the New York Stock Exchange, and application will be made to list these securities.” In closing, the letter stated: “ Mr. Bates will be glad to call on you and go into further detail on either of these issues if you desire it.” A circular accompanying the letter also contained the statement: “Application will be made to list these notes on the New York Stock Exchange.” When Mr. Bates again called shortly after the receipt of this letter and circular, he stated to Mr. Kinn that application “ had already been made and that the notes would be listed.”

Kinn testified that relying upon these representations he and his company bought the notes and paid their purchase price to the defendant.

A few months later the company went into the hands of a receiver, and the plaintiff then learned that no application had been made to list the securities, and what is more he was informed that the defendant never intended to make such application; that the statements made by Bates were false and untrue. The plaintiff had been deceived in making the purchase. It is not claimed that Bates made willful and fraudulent misrepresentations, but it was insisted in the immediate correspondence between the parties that Bates’ statements were false in fact and that he had knowingly stated that about which he had no positive knowledge.

The plaintiff immediately upon ascertaining the facts rescinded the sale, offered to return the securities, and demanded back the purchase price. It wrote the defendant to its Cleveland office fully about the transaction, and finally Mr. Kinn called at the Cleveland office and saw Mr. Swetch, the manager. The plaintiff attempted to prove that Mr. Kinn was referred to Mr. Earle of the firm of Earle & Hoar at the New York office of the company. It was admitted on the trial that Mr. Earle was the attorney for the defendant at all the times referred to. The plaintiff offered many letters rescinding the transaction and offering back his securities. Finally on July 25, 1922, a letter was received from the defendant containing certain admissions which the plaintiff offered in evidence, and which was excluded. This letter was written on the letter paper of A. B. Leach & Co., Inc. It was excluded, apparently because written by Earle, the lawyer. The letter was not from the lawyer as such, or from the attorney for Leach & Co.; it was from the defendant and was prim a facie evidence of admissions stated therein. All corporations act by agents, and when a transaction is carried through in the name of the corporation by its agents, the corporation is bound thereby providing the agents have authority to act. Statements made by agents in the course of authorized transactions may also be binding upon the corporation. The authority of Earle to write and sign the letter was conceded. The plaintiff offered to prove that Kinn had been referred to the New York office of the defendant, and to Earle; this also was improperly excluded. A corporation can only act by its agents. Earle, in signing the name of the defendant, was apparently acting as the defendant’s agent, not as an attorney at law. The letter annexed to the record as having been marked for identification contains a statement made by A. B. Leach & Co., Inc., reading as follows: We note all that you say in relation to the statement that the Island notes were to be listed, but there never was any idea whatever of listing them.” We think this letter should have been received in evidence, and that under the circumstances it was error to exclude it. If it should appear upon the trial that Earle had no authority to make these statements, of course the defendant would not be bound by them.

We, therefore, have a case where the plaintiff bought securities, relying upon false representations and immediately rescinded the transaction. Two questions remain. Were the representations material? In the first place, the parties themselves made the representations material because Kinn told Bates that they only desired to purchase listed securities or those which were to be listed. And in the next place, Michael J. Murphy, vice-president of the Federation Bank of New York, testified that it would be a favorable factor from the standpoint of a purchaser to know that securities were listed or would be listed on the New York Stock Exchange; that there is value in the statement that application is to be made for listing, as it is a factor in purchasing. William D: Williams, assistant secretary of the New York Stock Exchange, described the care with which securities and corporations were investigated when application was made to list them. And Kinn swore: “I banked on that the company would not make application to list unless they were of a quality that would pass the requirements, and I took it for granted that they knew what the requirements were. I accepted the statement that an application to fist meant listing.” There was, therefore, sufficient evidence regarding these -representations to make their materiality a question for the jury.

Another question arises regarding the remedy. The plaintiff brought this action at law on the rescission to get its money back. It has not proved or attempted to prove that the misrepresentations were willfully false or fraudulently made. It seeks relief on the same ground that rescission might be maintained in equity by proving that the representations were false in fact, and misled the plaintiff into making the purchase. (Bloomquist v. Farson, 222 N. Y. 375; Hammond v. Pennock, 61 N. Y. 145.) As no equitable relief was required, it was inappropriate, if not impossible, for the plaintiff to maintain an action for rescission in equity. All it wanted was the return of its money. Action at law was, therefore, proper. The proof required was no different from that which would be required in equity. No reason exists for a distinction. (Schank v. Schuchman, 212 N. Y. 352.) It is not necessary in order that a contract may be rescinded for fraud or misrepresentation that the party making the misrepresentation should have known that it was false. Innocent misrepresentation is sufficient, and this rule applies to actions at law based upon rescission as well as to actions for rescission in equity. (Continental Insurance Co. v. Equitable Trust Co., 127 Misc. Rep. 45; 2 Williston on Sales [2d ed.], sec. 632; 2 Parsons on Contracts [9th ed.], p. 775; Montgomery Door & Sash Co. v. Atlantic Lumber Co., 206 Mass. 144; McKinnon v. Vollmar, 75 Wis. 82; American Educational Co. v. Taggert, 124 Ill. App. 567; Helvetia Copper Co. v. Hart-Parr Co., 137 Minn. 321.)

That a purchaser who has relied upon a material misrepresentation may rescind the transaction, if he acts without delay, is established by such authorities as Weigel v. Cook (237 N. Y. 136); Schank v. Schuchman (212 N. Y. 352); Vail v. Reynolds (118 N. Y. 297); Smith v. Countryman (30 N. Y. 655).

A distinction in the nature of the proof, therefore, does not exist between the action at law and the action in equity, but does exist between the action in rescission and the action for damages based upon fraud and deceit. Here there must be proof of willful and fraudulent misrepresentation, knowingly made, resulting in damage. (Reno v. Bull, 226 N. Y. 546.)

The complaint sets forth these representations in different causes of action. Why this was done I do not know. All the representations made by Bates led up to the sale and apparently were relied upon by the plaintiff. There is and was no necessity for dividing these various statements into separate causes of action. For instance, the statement that application would be made to list the securities led to the later statement that application had been made. The representation embodied in the latter statement would not exclude evidence of the former. All the conversations leading up to the purchase would be competent evidence bearing upon the nature of the representations. We think that when the plaintiff had finished its case, a cause of action had been made out, entitling it to relief, and that it was improper to dismiss the complaint. A reversal, however, would still be necessary because of the improper- exclusion of the proof above referred to.

One word of caution. We do not say that the plaintiff proved its case, entitling it to payment; we do say that a prima facie case had been made out requiring a determination of the issues and of the facts.

The judgments below should, therefore, be reversed and new trials granted in both actions, costs to abide the event.

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

Judgments reversed, etc.


author: Cardozo, Ch. J.

text:
    The People of the State of New York ex rel. Lehigh Valley Railway Company et al., Appellants, v. State Tax Commission, Respondent.
    Tax — franchise tax — railroads — riparian rights — power of State to regulate or prohibit bridges • — • bridging streams navigable by small craft exercise of special franchise even though ownership of banks and beds is in railroad company.
    1. The power of the State to regulate or prohibit bridges or other structures above a navigable stream is not dependent upon the ownership of the soil below. It may determine what may be built above its waterways as above its highways on the land. The right to bridge a stream is not an inseparable incident to riparian ownership.
    2. The maintenance of a bridge by a public service corporation across navigable waters involves the enjoyment of a special franchise subject to taxation, though the bed- is in private ownership and the bridge is at such a height that navigation is unobstructed. Special franchise taxes are, therefore, properly assessed on bridges erected and maintained by a railroad company across streams navigable only for small craft, though the company owns the beds of the streams and the banks on which the abutments rest, and the bridges do not interfere with existing navigation or -with any navigation that is possible without deepening the beds.

      People ex rel. Lehigh Valley By. Co. v. State Tax Comm,., 220 App. Div. 1, affirmed.
    (Argued November 21, 1927;
    decided January 10, 1928.)

      Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the third judicial department, entered March 18, 1927, which unanimously affirmed final orders in certiorari proceedings to review the assessment of special franchises entered upon the report of a referee.

      Harold E. Simpson for appellants.
    A railroad crossing maintained over a stream, the bed and abutments of which are privately owned, does not constitute a special franchise where there is no interference with the public use of said stream. (People ex rel. Met. St. Ry. Co. v. State Tax Comm., 174 N. Y. 417; Fulton Light, Heat & Power Co. v. State, 200 N. Y. 400; Commissioners of Canal Fund v. Kempshall, 26 Wend. 403; Smith v. City of Rochester, 92 N. Y. 463.)

      Albert Ottinger, Attorney-General {Frederic J. Merriman of counsel), for respondent.
    The burden of the proof is upon the relator to show the assessments are erroneous. (People v. Priest, 150 App. Div. 19; 206 N. Y. 274; People v. Feitner, 65 App. Div. 318; 169 N. Y. 604; People v. Parow, 195 App. Div. 745; People ex rel. Dexter Sulphite P. & P. Co. v. Hughes, 216 App. Div. 626; People ex rel. Lehigh Valley Ry. Co. v. Burke, 221 App. Div. 248; People ex rel. Kellogg v. Wells, 101 App. Div. 600; People ex rel. Hud. & Manhattan R. R. Co. v. Tax Comm., 143 App. Div. 26; 203 N. Y. 119; People ex rel. United Verde Copper Co. v. Feitner, 54 App. Div. 217; People ex rel. Eden Musee Co. v. Feitner, 60 App. Div. 282; People ex rel. N. Y. & R. B. R. R. Co. v. Tax Comm., 184 N. Y. 275; People ex rel. Masonic Hall Assn., etc., v. White, etc., 218 App. Div. 38; Matter of Klein, 92 Misc. Rep. 332.) The waters crossed by relator at the locations in question are public waters and navigable and, therefore, public highways, and the crossings thereof create that kind or species of property called special franchise. (Lamprey v. State, 52 Minn. 181; Fulton L., H.

      & P. Co. v. State, 200 N. Y. 400.) The relator’s bridge crossings at the points in question are properly assessable as special franchises even if the abutments rest upon the land owned by the relator. (People ex rel. Western N. Y. & Pa. Ry. Co. v. State Tax Comm., 212 N. Y. Supp. 161; People ex rel. Manhattan R. R. Co. v. State Tax Comm., 203 N. Y. 119; People ex rel. Harlem River & P. C. R. R. Co. v. State Tax Comm., 215 N. Y. 507; People ex rel. N. Y., O. & W. R. R. Co. v. State Tax Comm., 116 Misc. Rep. 774; Danes v. State, 219 N. Y. 67; Daniel Ball Case, 77 U. S. 557; Montello Case, 20 Wall. 430; Morgan v. King, 35 N. Y. 459; Carter v. Thurston, 42 Am. Rep. 584; Thompson v. Androscoggin Co., 54 N. H. 545.)
   Cardozo, Ch. J.

The question in this case is the one left open and undecided in People ex rel. Western N. Y. & Penn. Ry. Co. v. State Tax Commission (244 N. Y. 596). We are to determine “ whether the right to erect a railroad bridge resting on abutments on private property across a stream, the bed of which is in private ownership, even though to some extent the river can be used for navigation, constitutes a special franchise unless the bridge so erected does actually interfere and obstruct the use to which the public could subject the stream.”

The Lehigh Valley Railway Company is the owner of two bridges within the limits of the city of Ithaca, one across Cascadilla creek and the other across Six Mile creek. Both creeks are navigable streams, though only for small craft. Motor boats, rowboats, rafts and skiffs navigate the two streams above and below the crossings. The railroad company is the owner of the bed of the creeks and also of the banks on which the abutments rest. The bridges do not interfere either with existing navigation, or with any navigation that is possible without deepening the beds.

We think the maintenance of a bridge by a public service corporation, across navigable waters involves the enjoyment of a special franchise subject to taxation, though the bed is in private ownership and the bridge is at such a height that navigation is unobstructed.

The power of the State to regulate or prohibit bridges or other structures above a navigable stream is not at all dependent upon the ownership of the soil below. It is an incident to the public duty to maintain for the public benefit waterways that supply the natural avenues of commerce. Title to the bed of most of the rivers of the State is in the owners of the uplands (Fulton L., H. & P. Co. v. State, 200 N. Y. 400). The Hudson and the Mohawk may be exceptions, but the exceptions have their roots in the antiquities of history (Danes v. State, 219 N. Y. 67; Waterford El. L., H. & P. Co. v. State, 208 App. Div. 273; 239 N. Y. 629). So large and important a stream as the Oswego river was held in a leading case to be subject to the general rule (Fulton L., H. & P. Co. v. State, supra). The difference between the navigable quality of such a river and that of the creeks spanned by these bridges is one solely of degree. We cannot doubt that a railroad corporation, the owner of land along the banks of the Oswego, would be in the enjoyment of a special franchise within the meaning of the statute (Tax Law, § 2, subd. 6; Cons. Laws, ch. 60), if it were to throw a bridge across the river, no matter at how high a point above the level of the water. The franchise would be unrelated to the title to the bed below (Trustees of Town of Southampton v. Jessup, 162 N. Y. 122).

The truth indeed is that a bridge, however placed across a navigable stream, is a potential interference with navigation in such a sense and to such a degree as to preclude its construction by force of common right or without the license or approval of the appropriate agencies of government. Cascadilla creek and Six Mile creek are navigable waters within the accepted definition (Morgan v. King, 35 N. Y. 454; U. S. v. Holt Bank, 270 U. S. 49, 56). Until Congress interferes, the State may develop as it will their navigable quality (International Bridge Co. v. N. Y., 254 U. S. 126, 132; U. S. v. Chandler-Dunbar Co., 229 U. S. 53). It may say that bridges shall not be built at all if it finds the risk too great. It may say that they may be built, but only upon conditions (Gilman v. Philadelphia, 3 Wall. [U. S.] 713). One who builds or maintains them enjoys a special privilege, not due of common right or as incident to ownership. This uncommon privilege, which, even if now irrevocable, might once have been withheld, is chargeable with a special tax, if the State elects to tax it.

We have said that a bridge over a navigable stream is subject in its construction to the veto of the State since it involves a menace, at least potential, to the unobstructed flow of commerce. Interference with navigation can come from piers or other obstacles narrowing the channel. It can come from the elevation of the structure, as where the bridges are so low that boats cannot go under them. These are the main impediments, but not the only ones. There may be dangers from above. Navigation is impeded if objects falling from a bridge cause damage to the craft below, or expose the traveler to peril. The State has the right to say to what extent such perils, even though slight, shall be permitted. It may determine what may be built above its waterways as above its highways on the land (Tilly v. Mitchell & Lewis Co., 121 Wis. 1, 13; 2 Elliott on Roads & Streets, § 830; cf. People ex rel. N. Y. C. R. R. Co. v. Tax Comm., 239 N. Y. 183).

Support is found for this conclusion in decisions that define the regulatory power of Congress in respect of navigable streams. The United States is not the owner of the beds of such streams within the limits of the States. Whatever power belongs to Congress to control the course of navigation is a branch of its power to regulate interstate and foreign commerce, and is limited thereby. The law is settled, none the less, that its power to proMbit or control the erection of bridges over navigable waters is as broad as any that would belong to it if it had title to the bed. Riparian owners may not escape the effect of its veto by proof that in the circumstances of a given case the obstruction would be negligible. They must submit to the enactments wMch ordain that in some instances Congress itself must authorize the bridge and that m all instances there must be the license and approval of admimstrative officers (Cummings v. Chicago, 188 U. S. 410, 429; Stone v. Southern Ill. Bridge Co., 206 U. S. 267, 274; Int. Bridge Co. v. N. Y., supra; Miller v. Mayor of N. Y., 109 U. S. 385; Gilman v. Philadelphia, supra; People v. Hudson River Connecting R. R. Corp., 228 N. Y. 203, 217, 218; River & Harbor Act of March 3, 1899; 30 Stat. § 1151, § 9; Mason’s U. S. Code, vol. 2, p. 2414, title 33, § 401; Blair, Federal Bridge Legislation, 36 Yale L. J. 808, and cases there cited). Much m point is the ruhng m a recent case (Economy Light Co. v. U. S., 256 U. S. 113). There the question was whether the Desplaines river, a stream navigable by small craft, was subject to the Federal statute. “We concur in the opmion of the Circuit Court of Appeals that a river havmg actual navigable capacity in its natural state and capable of carrying commerce among the States, is within the power of Congress to preserve for purposes of future transportation, even though it be not at present used for such commerce, and be incapable of such use according to present methods, either by reason of changed conditions or because of artificial obstructions. And we agree that the provisions of section 9 of the Act of 1899 (30 Stat. 1151) apply to such a stream ” (Economy Light Co. v. U. S., supra). If Congress may exact a license, so also may the State, whose power of regulation is plenary till Congress intervenes (Gilman v. Philadelphia, supra; Int. Bridge Co. v. N. Y., supra).

The Lehigh Valley Railway Company, the owner of these bridges, is organized as a corporation under the laws of this State, and must look to those laws for the definition of its powers. The railroad corporation acts for the better part of a century have treated the right to span a stream as a privilege or franchise. We see this in the act of 1850 (L. 1850, ch. 140, § 28, subd. 5). Provision is there made that a railroad corporation may construct its road across any stream of water or watercourse, provided the stream or watercourse be restored to substantially its former state. Nothing in this act contained,” however, shall be construed to authorize the erection of any bridge, or any other obstructions across, in or over any stream or lake navigated by steam or sail boats, at the place where any bridge or other obstructions may be proposed to be placed.” We see the same thought in the later Railroad Act of 1890 (L. 1890, ch. 565, § 11) which in this respect continues the act of 1850 with changes merely verbal. We see the same thought, emphasized and developed, in the Railroad Act in force at the time of the assessment (L. 1910, ch. 481, as amended by L. 1913, ch. 743, and L. 1916, ch. 109; Consol. Laws, ch. 49). In that act there is a re-enactment of the provisions of the earlier statutes with the addition that the consent of the Public Service Commission shall be obtained whenever a bridge is built across a navigable creek. A railroad corporation submits in the acceptance of its charter to the restrictive reservations accompanying the grant.

The right to bridge a stream is not an inseparable incident to riparian ownership (Enfield Toll Bridge v. Hartford R. R. Co., 17 Conn. 40, 63), like the right, e. g., to build a dock or a pier (Town of Brookhaven v. Smith, 188 N. Y. 74). This is so though the bridge has been constructed without objection. In the absence of a grant, the State may revoke such license, if any, as may be inferred from acquiescence, and resume dominion to itself. Dams across rivers and even across creeks have been held to be unlawful if built without license, express or implied, at points where the stream would otherwise be navigable (Willson v. Black Bird Creek Marsh Co., 2 Pet. [U. S.] 245; Pound v. Turck, 95 U. S. 459; U. S. v. Bellingham Bay Boom Co., 176 U. S. 211; Waterford El. L., H. & P. Co. v. State, 208 App. Div. 273, at pp. 286, 287, 288, explaining Commissioners of Canal Fund v. Kempshall, 26 Wend. 404). If there have been loose statements to the contrary, they have been made for the most part in jurisdictions where the building of a dam had the sanction, either express or implied, of the provisions of a statute (see, e. g., Newbold v. Mead, 57 Penn. St. 487; Pearson v. Rolfe, 76 Me. 380, 386; Foster v. Spool & Block Co., 79 Me. 508, 511; Kretzschmar v. Meehan, 74 Minn. 211, 214). The erection of a bridge involves a kindred exercise of power (Gilman v. Philadelphia, supra; Gould on Waters, § 132). “ There are three cases in which authority from the Legislature is necessary to erect a bridge over a stream. One is when the stream is navigable; 2d, when the State owns the bed of the stream; and 3d, when the right to take toll is desired ” (Fort Plain Bridge Co. v. Smith, 30 N. Y. 44, 63).

Distinctions have at times been attempted between streams navigable for boats and those floatable for logs (Gould on Waters, § 110; 1 Farnham on Waters, § 29, p. 138; cf., however, Morgan v. King, 35 N. Y. 454, 459). There are statements that in the one class of waters the public right extends to the full width of the stream (Sullivan v. Jernigan, 21 Fla. 264, 279), and that in the other it is more restricted. We do not need to go into these distinctions now. The line between navigable and non-navigable waters is not always an easy one to draw (Egan v. Hart, 165 U. S. 188). Much will often depend upon the acquiescence of the State. Even an unlawful obstruction may not be abated as a nuisance at the suit of private persons if the State does not complain, and there is no showing of special damage by the champions of the public right (Fort Plain Bridge Co. v. Smith, supra, at p. 62). Here the State itself is asserting its own dominion, never surrendered, but on the contrary, in the very creation of its corporations, explicitly reserved. The relator has no immunity against a challenge so august. The order should be affirmed with costs.

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

Order affirmed, etc.


author: O’Brien, J.

text:
    In the Matter of Leopold Seidl, Appellant, against Joseph Zauner, Receiver of Taxes, et al., Respondents.
    Assessment — New Rochelle (city of) — notice — certiorari — statutory requirement of ten days’ notice of public improvement not substantially complied with by giving eight days’ notice — assessment void for defect in notice — confirmation of assessment reviewable by certiorari — charter provision authorizing board of estimate and apportionment to correct assessments not applicable to assessments for benefit — does not authorize appeal contemplated by Civil Practice Act, § 1286, subd. 2.
    1. The provision in section 282 of the charter of the city of New Rochelle (L. 1910, ch. 559) that notice of a proposed improvement, the expense of which is payable by local assessment, shall be published at least ten days before the time for filing objections, is not substantially complied with by publication of the notice eight days before and such a defect in the publication renders an assessment for the improvement void. The determination of the officials who confirmed the assessment may, therefore, be reviewed by certiorari.
    2. Section 73 of the charter, authorizing the board of estimate and apportionment to cancel or correct erroneous or invalid assessments, does not apply to assessments for benefit nor does it authorize such an appeal as is contemplated by subdivision 2 of section 1286 of the Civil Practice Act, providing that a certiorari order cannot be granted “ where the determination can be adequately reviewed by an appeal to a court or to some other body or officer.”

      Matter of Seidl v. Zauner, 221 App. Div. 774, reversed.
    (Submitted November 21, 1927;
    decided January 10, 1928.)
    Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered June 24, 1927, which confirmed on certiorari a determination of the commissioner of public works and other officers of the city of New Rochelle levying an assessment on property of petitioner for a street improvement.

      John P. Broomell for appellant.
    The requirements of the city charter must be strictly observed, and any departure in substance from the formula prescribed by the Legislature vitiates the assessment. (Hopkins v. Mason, 42 How. Pr. 115; Newell v. Wheeler, 48 N. Y. 486; Merritt v. Village of Port Chester, 71 N. Y. 309; Stebbins v. Kay, 123 N. Y. 31.) The failure of the city clerk to publish the prescribed notice ten days before the expiration of the time for filing objections renders the assessment void. (Stuart v. Palmer, 74 N. Y. 183; Matter of Douglas, 46 N. Y. 42; Matter of Astor, 50 N. Y. 363; Matter of Anderson, 60 N. Y. 457; Matter of Smith, 52 N. Y. 526; Matter of Bassford, 50 N. Y. 509; Matter of Little, 60 N. Y. 343; Matter of Pennie, 108 N. Y. 364; Tifft v. City of Buffalo, 25 App. Div. 376; Auditor v. Calkins, 136 Mich. 1.)

      Charles A. Van Auken for respondent.
    While any departure in substance from the formula prescribed by the charter vitiates an assessment nevertheless every noncompliance' does not render an assessment void. The non-compliances in this case are not substantial and, therefore, they do not render the assessment void. (People ex rel. De Frece v. Lathers, 141 App. Div. 16.) The petitioner cannot resort to an order of certiorari to review an assessment which he contends is wholly illegal and void. (People ex rel. Marsh v. Delaney, 49 N. Y. 655.)
   O’Brien, J.

Appellant is the owner of real property on Stonelea place in New Rochelle. The council of that city adopted a resolution declaring its intention to construct a gutter in front of his property and directed the city clerk to advertise the proposed improvement, specifying June 1, 1926, as the time within which objections might be filed. On May 24, 1926, the clerk caused to be published a notice of a hearing to be held by the council on June 1, 1926, at which objections to the intended improvement would be considered. Objections, if presented on that date, were overruled. Construction of the improvement was authorized and completed and the cost assessed against appellant and other property owners. They protested against the levy and confirmation of the assessment and now review it by certiorari.

A jurisdictional defect in the publication of the notice of hearing renders the assessment void. Section 282 of the New Rochelle charter (L. 1910, ch. 559) provides that notice of a proposed improvement, the expense of which is payable by local assessment, shall be published at least ten days before the expiration of the time for filing objections. This provision was violated by the publication on May 24 when the time for filing objections expired on June 1. An eight-day notice does not constitute a substantial compliance with a statute requiring at least ten days. (Merritt v. Village of Portchester, 71 N. Y. 309; Stebbins v. Kay, 123 N. Y. 31; People ex rel. O’Reilly v. Common Council, 189 N. Y. 66, 74; People ex rel. Empie v. Smith, 216 N. Y. 95, 100.)

Since the assessment is void for want of jurisdiction, the determination of the officials who confirmed it may be reviewed by certiorari. (Section 1304, subd. 2, Civ. Practice Act; Mercantile National Bank v. Mayor, etc., of N. Y., 172 N. Y. 35; People ex rel. Erie R. R. Co. v. Tax Comm., 246 N. Y. 322.) Section 73 of the charter does not apply to assessments for benefit nor does it authorize such an appeal as is contemplated by section 1286, subdivision 2," Civil Practice Act.

The order of the Appellate Division should be reversed and the determination annulled, with costs in all courts.

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

Ordered accordingly.


text:
    Joseph Mogul, Inc., Respondent, v. C. Lewis Lavine, Inc., Appellant.
    Carriers — damages — summary judgment — goods shipped C. O. D.— liability of carrier for breach of duty — acceptance by carrier of forged certified check in payment — carrier liable for consignor’s damage — measure of damages the value of merchandise where price could not have been collected — improper summary judgment.
    1. A carrier receiving merchandise on a C. O. D. shipment acts in two capacities, as bailee to transport the goods and as agent to collect the price. For breach of its duty as bailee it is liable for the value of the goods. For breach of its duty as agent it is liable for whatever could have been collected had the duty been fulfilled.
    2. Where a carrier failed to exact cash on delivery of goods shipped C. O. D. but accepted the consignee’s cheek to the order of the consignor, apparently certified, but in fact the certification was a forgery and the check worthless, it is liable in an action by the consignor for its damage. The measure of such damage, however, is not the amount to be collected. Any presumption in favor of the collectible quality of the consignor’s demand has been rebutted by the utterance of the forged check. The,consignee would not have paid cash had the check been rejected. In such circumstances the limit of the recovery is the value of the merchandise surrendered.
    3. The cause of action, therefore, is for damages and not for a “ debt or liquidated demand ” within the provisions of Civil Practice Rule 113 authorizing summary judgment on motion.

      Mogul, Inc., v. Lavine, Inc., 220 App. Div. 287, reversed.
    (Argued November 23, 1927;
    decided January 10, 1928.)
    Appeal from a judgment, entered April 29, 1927, upon an order of the Appellate Division of the Supreme Court in the first judicial department, which reversed an order of Special Term denying a motion, by plaintiff, for summary judgment under Civil Practice Rule 113 and granted said motion.

      Henry W. Fried for appellant.
    Plaintiff, if entitled to recover at all, can obtain only the market value of the consigned merchandise, The record shows no proof of value. In any case such damage is not liquidated and cannot be the subject of a motion for summary judgment. (Feiher v. Manhattan Dist. Tel. Co., 3 N. Y. Supp. 116; Cox v. Columbus R. Co., 91 Ala. 392; Murray v. Warner, 55 N. H. 546; American Express v. Lessem, 39 Ill. 312; Moore on Carriers [2d ed.], 262, § 32; Hatch v. N. Y. C. R. R. Co., 122 Misc. Rep. 707; Tooker v. Gormer, 2 Hilt. 71; Underwood v. Globe Indemnity Co., 245 N. Y. 111; St. Johns v. S. A. Compania, etc., 263 U. S. 119; N. Y., etc., R. Co. v. Estill, 147 U. S. 591; Mobile R. Co. v. Jurey, 111 U. S. 584; Harris v. Delaware R. Co., 61 N. Y. 656; Sturgis v. Bissell, 46 N. Y. 462 ; Kilthan v. International Mercantile Co., 217 App. Div. 22; Dobbins v. Delaware R. R. Co., 177 App. Div. 132.)

      Edward C. Baftery, Dennis F. O’Brien and M. L. Malevinsky for respondent.
    There is now due and owing to the plaintiff from the defendant the amount of money that the defendant should have collected from the carrier. (Tooker v. Gormer, 2 Hilt. 71; Rathbun v. Citizens’ Steamboat Co., 76 N. Y. 376; Rolla Products Co. v. American Ry. Express Co., 226 S. W. Rep. 582.) The defendant was an agent to collect and is liable to plaintiff for breach of its contract of collection. (Nat. Bank of Commerce v. American Exchange Bank, 151 Mo. 320; State Bank of Midland v. Byrne, 21 L. R. A. 753.)
   Cardozo, Ch. J.

Plaintiff in Philadelphia delivered to defendant, a common carrier, a case of goods to be delivered to a buyer in New York. The merchandise was shipped C. O. D., and $3,524.41 was stated to be the amount to be collected. Defendant failed to exact cash upon the delivery of the goods, but accepted, instead, the consignee’s check to the order of the consignor. The check appeared to be certified. In fact the certification was a forgery, and the check worthless. The plaintiff sues for the price on the theory that the carrier, by the acceptance of a check as a substitute for cash, has made the buyer’s debt its own.

The case comes here upon an application for summary judgment under Civil Practice Rule 113, which is limited to causes of action for the recovery of “a debt or liquidated demand arising * * * on a contract, express or implied.” If the carrier is chargeable as upon an assumption of a debt, irrespective of the solvency of the consignee or the value of the merchandise, the remedy invoked is proper. If the measure of the recovery is the loss suffered by the shipper, the damage, now unliquidated, must be proved, and the summary remedy must fail (Norwich Pharmacal Co. v. Barrett, 205 App. Div. 749; Interstate Pulp & Paper Co. v. N. Y. Tribune, 207 App. Div. 453).

An express company or other carrier receiving merchandise on a C. O. D. shipment acts in two capacities, as bailee to transport the goods and as agent to collect the price (Hutchinson, Carriers, § 726). For breach of its duty as bailee to carry and deliver to the person and on the conditions stated by the shipper, it is liable, as in the case of any other misdelivery, for the value of the goods (Murray v. Warner, 55 N. H. 546; Fowler Commission Co. v. Chicago, R. I. & P. Ry. Co., 98 Mo. App. 210). For breach of its duty to act as agent for the shipper in the collection of the price, it is liable, like any other collection agent, for whatever could have been collected if the duty had been fulfilled (Mechem, Agency, § 1320).

The law is settled that in the absence of agreement or custom to the contrary an agent to collect may accept money and nothing else (Federal Reserve Bank v. Malloy, 264 U. S. 160, 165). The defendant says that there is a custom whereby a carrier may accept as a substitute a certified check. Its position is not bettered if the custom be assumed. By concession, this was no certified check, but only a pretense of one. The defendant was bound to satisfy itself that the instrument was genuine when it took a substitute for money. The chance of deceit or forgery was one of the risks of its calling. It took the risk and lost. In such circumstances we do not question the ruling of the court below that upon the conceded facts there must -be a recovery by the plaintiff, at least for some amount. We think, however, that the amount is not a debt or other liquidated claim, but is measured by the damage.

The subject has been much considered in actions against banks for negligence or other default in the collection of commercial paper. Prima facie, the amount of the damage is the amount to be collected (First Nat. Bank v. Fourth Nat. Bank, 77 N. Y. 320, 328; Same v. Same, 89 N. Y. 412; Mechem, supra). If nothing more is proved, the damages will be assessed upon that basis. The agent in default may prove, however, in mitigation of the damages, that collection would have been impossible, though cash had been demanded (First Nat. Bk. v. Fourth Nat. Bank, supra). In such a situation the amount to be recovered will be limited accordingly. The courts were asked as long ago as 1838, when the case of Allen v. Suydam (20 Wend. 321) was decided by the Court of Errors, to give judgment upon the theory that the agent chargeable with negligence had made the debt his own (See 20 Wend, at p. 337). The theory was rejected then. Later cases in this court, confirming the rejection, have put the measure of liability upon a basis of established law (First Nat. Bank v. Fourth Nat. Bank, supra; cf. Fahy v. Fargo, 17 N. Y. Supp. 344; Dern v. Kellogg, 54 Neb. 560; Omaha N. Bank v. Kiper, 60 Neb. 33; Noble v. Doughten, 72 Kan. 336, 351; Trinidad Nat. Bank v. Denver Nat. Bank, 4 Dillon, 290).

We cannot doubt that any presumption in favor of the collectible quality of the consignor’s demand has been rebutted by the circumstances. A consignee willing to utter a forged and worthless check would not have paid cash if the check had been rejected. In such cireumstances, the limit of the recovery is the value of the merchandise surrendered. This for all that appears may have been less than the price to be collected. If the consignee had been able to pay at the time of the delivery, so that the price if exacted might then have been collected, the carrier would not be suffered to scale down the recovery upon the plea that the price was in excess of the value. The consignor could not be made to forfeit the benefit of the pressure that would have been put upon the buyer to pay what was asked that he might keep what had been tendered. In such circumstances the loss resulting from improper or negligent collection could fairly be found to be the sum to be collected, even if greater than the value. No such conclusion is legitimate, however, where there is not a reasonable probability ” (Allen v. Suydam, supra) that collection would have been possible if the agent had done his duty. In default of such a probability, the loss suffered by the shipper can be no greater than the value of the goods wrongfully surrendered. In any event, the cause of action is for damages, and not for a debt or its equivalent. (National Trust Co. v. Gleason, 77 N. Y. 400).

We do not overlook decisions in which the negligence of a collecting agent in taking a check instead of money has been spoken of as imposing a liability for the face value of the substitute. Analysis will show, however, that in those cases the debtor was in funds at the time when the substitute was taken (See, e. g., F. N. Bank v. Ashworth, 123 Penn. St. 212; Anderson v. Gill, 79 Md. 312; Bank of Antigo v. Union Trust Co., 149 Ill. 343; Bank of Washington v. Triplett, 1 Pet. 25). Back of all such statements, appropriate enough when read in the setting of the facts, there runs the consistent theme that the claim is one for damages, and is measured by the damage suffered (See, e. g., Noble v. Doughten, 72 Kan. 336, at p. 351). The case of Bolla Produce Co. v. Am. Ry. Express Company (205 Mo. App. 646), involving like the present one the liability of a carrier, may seem to go farther, but only in its dicta. Nothing in that case suggests that there was a difference between the value and the price, or that the consignee, if required to make payment, would have been unable to pay.

We conclude that the plaintiff has failed to make out its right to the entry of a summary judgment under the provisions of the rule, and that the case must take the usual course.

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

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

Judgment accordingly.


author: Pound, J.

text:
    Mary H. Lapiedra, Individually and as Administratrix De Bonis Non of the Estate of Bridget Ditton, Deceased, Appellant, v. American Surety Company of New York et al., Respondents.
    Jurisdiction — Surrogate’s Court — executors and administrators — limitation of actions — conclusiveness of decision of Surrogate’s Court as to its jurisdiction — sufficiency of allegations in petition to establish jurisdiction —■ untrue allegation a fraud on court — • letters of administration de bonis non issued on false allegation that prior letters had been revoked open to collateral attack — letters absolutely void for lack of jurisdiction —■ action on administrator’s bond brought twenty-three years after issuance of letters barred by Statute of Limitations.
    1. The rule that a decision of a Surrogate’s Court upon the question of its jurisdiction is conclusive, until reversed, revoked or vacated, implies that the court shall exercise its judicial functions in the matter and actually pass upon the questions of jurisdiction. It need not take evidence since its jurisdiction may be established by allegations contained in a written petition. An untrue allegation, however, though innocently made, constitutes a fraud upon the court directly affecting its jurisdiction and where, on a false allegation that prior letters of administration had been revoked, the court issues new letters of administration de bonis non they are open to collateral attack since no inference is permissible that in so acting the court consciously revoked the prior letters. A dismissal of the complaint, therefore, in an action by the administrator de bonis non, on the oficial bond of the administrator, to recover the value of any assets receiv d and not duly administered by him, was proper, on the ground that the appointment of plaintiff was void.
    2. A contention that the defendants are in pari delicto with plaintiff in suppressing the facts before the Surrogate’s Court and should, therefore, be required to resort to direct attack on the letters, cannot be sustained. The Surrogate’s Court had no jurisdiction to appoint an administrator de bonis non and its letters were absolutely void.
    3. Nor is the action, commenced November 27, 1923, maintainable by plaintiff individually. The original letters were issued June 27, 1900. The Statute of Limitations, therefore, had clearly run against her. There must be an accounting before there is a liability and default on the bond has not been established.

      Lapiedra v. American Surety Co., 220 App. Div. 738, affirmed.
    (Argued November 23, 1927;
    decided January 10, 1928.)
    Appeal from a judgment, entered May 13, 1927, upon an order of the Appellate Division of the Supreme Court in the second judicial department, reversing a judgment in favor of plaintiff entered upon the report of a referee and directing a dismissal of the complaint.

      James Burke and Thomas F. Cosgrove for appellant.
    The decree appointing plaintiff as administratrix cannot be attacked collaterally. (Matter of McMullen, 85 Misc. Rep. 669; O’Connor v. Higgins, 113 N. Y. 513; Botton v. Schriever, 135 N. Y. 65; Kelly v. West, 80 N. Y. 140; Harrison v. Clark, 87 N. Y. 572; Bearns v. Gould, 77 N. Y. 457; Keegan v. Smith, 60 App. Div. 170; Prentiss v. Weatherby, 68 Hun, 114; 144 N. Y. 707; Roderigas v. East River Savings Inst., 76 N. Y. 316.) Plaintiff may recover individually and as administratrix, and the Statute of Limitations has not run against her as yet in either capacity. (Hood v. Hood, 85 N. Y. 561; Scharmann v. Scholl, 23 App. Div. 398; Fassbender v. Amer. Surety Co., 66 Misc. Rep. 6; Flanagan v. Fidelity, 32 Misc. Rep. 424; Ganley v. Troy City Bank, 98 N. Y. 487; Lightfoot v. Davis, 198 N. Y. 261; Kelly v. West, 80 N. Y. 140; Otto v. Van Riper, 31 App. Div. 289.)

      Allen C. Rowe, George L. Naught and Frank H. Innes for respondents.
    The order appointing plaintiff administratrix de bonis non and the" grant of letters of administration to her are utterly void and may be attacked collaterally. (Griffith v. Frasier, 8 Cranch [U. S.], 1; Hickey v. Stallworth, 143 Ala. 535; Packer v. Owens, 164 Penn. St. 185; Pina’s Estate, 112 Cal. 14; Chamberlain’s Appeal, 70 Conn. 363; Kinney v. Keplinger, 172 Ill. 449; Landers v. Stone, 45 Ind. 404; Macey v. Stark, 116 Mo. 481.) The false and untrue recital that Tuite had been removed as administrator contained in the petition of plaintiff for her appointment as administratrix de bonis non, cannot help plaintiff’s case, for such petition is a fraud upon the Surrogate’s Court. (Hoes v. N. Y., N. H. & H. R. R. Co., 173 N. Y. 435; Spallholz v. Sheldon, 158 App. Div. 367.) Plaintiff cannot recover individually against defendants by reason of the Statute of Limitations. (Matter of Longbotham, 38 App. Div. 697; Matter of Rogers, 153 N. Y. 316; Matter of Smith, 66 App. Div. 340; 179 N. Y. 563; Matter of Cruikshank, 40 Misc. Rep. 325.)
   Pound, J.

Letters of administration on the estate of Bridget Ditton, deceased, were issued to defendant Tuite by the Surrogate’s Court of Richmond county on June 27, 1900. Defendant American Surety Company became the surety on his administrator’s bond which was in the penal sum of $20,000.

In April, 1904, the surety company instituted proceedings under section 812 of the Code of Civil Procedure, then in force, to be relieved from further liability as surety for Tuite as such administrator. On April 27, 1904, the surrogate made an order directing Tuite to file a.new bond within five days. Tuite did not file the bond. The Code section provided: If the principal fail so to file such new bond within the time specified, a decree or order must be made revoking the appointment of such principal or removing him and requiring him to * * * account and file such account within twenty days.” No such order was made. Although prepared and presented to the surrogate, it was never signed. This court has held (Matter of Thurber, 162 N. Y. 244) that the expression “ a decree must be made ” does not deprive the surrogate of discretion but means merely that a decree may be made.” It is not contended that Tuite was ever formally removed as such administrator. Litigation in the Supreme Court then intervened. Margaret Gallagher, in an action against Tuite, as administrator, sought to establish a contract between herself and the intestate whereby the intestate agreed that all her property should pass at her death to the claimant in consideration of the performance of certain duties. " In December, 1907, after the lower courts had upheld the contract and taken and stated the administrator’s account, this court reversed and held that the judgment could not be sustained. (Holt v. Tuite, 188 N. Y. 17.) The matter then rested until July 6, 1922, when Mary Hornby Lapiedra, the plaintiff herein, a one-third distributee of the estate, presented her petition to the Surrogate’s Court of Richmond county for letters of administration de bonis non. The petition contains an allegation, made, apparently, through carelessness in examining the papers on file in the Surrogate’s Court (not of the present attorney of record), that Tuite had been removed as administrator on April 27, 1904. A citation was issued thereon and service thereof was made on the defendants. The defendant surety company appeared on the return day. No objection was made to the issue of letters de bonis non, and letters were issued accordingly. The new administrator instituted discovery proceedings against Tuite and the surety company. They appéared, asked leave to file their account, which was granted but they did not file an account. Thereupon the surrogate, on plaintiff’s petition, made an order authorizing plaintiff to bring this action on the official bond of Tuite to recover the value of any assets received by the principal and not duly administered by him, both individually, as a person aggrieved (Surrogate’s Court Act, § 115) and as administrator de bonis non (Surrogate’s Court Act, § 114). The action was begun on November 27, 1923, for an accounting and a money judgment thereon. The case was tried before a referee who directed judgment for plaintiff.

The Appellate Division reversed upon the law and dismissed the complaint. The basic reason for dismissing the complaint was that the appointment of plaintiff as administrator de bonis non and the granting of letters to her are void, the record showing that the prior administrator is living and that his letters have never been revoked.

Indubitably, the removal proceedings instituted by the surety company in 1904 never went further than the order requiring Tuite to file a new bond. Although he was in default under that order, his letters were not revoked. The Surrogate’s Court has jurisdiction to revoke letters of administration and jurisdiction to appoint a successor in place of a person whose letters .have been revoked. (Surrogate’s Court Act, § 40, subd. 2; § 136.) It has jurisdiction in any proceeding before it of parties who have been cited. (Surrogate’s Court Act, § 41, subd. 2.) It obtains jurisdiction to make a decree by the existence of the jurisdictional facts prescribed by statute. (Surrogate’s Court Act, § 42.)

Section 43 of the Surrogate’s Court Act provides:

“ Where the jurisdiction of a Surrogate’s Court to make a decree or other determination is drawn in question collaterally, the jurisdiction is presumptively, and, in the absence of fraud or collusion, conclusively, established, by an allegation of the jurisdictional facts, contained in a written petition or answer, duly verified, used in the Surrogate’s Court.”

Section 80 thereof provides:

“ Every decree of a Surrogate’s Court is conclusive as to all matters embraced therein against every person of whom jurisdiction was obtained.”

The question presents itself whether the letters issued to plaintiff are subject to collateral attack. A vacancy is a jurisdictional fact. If there is no vacancy, obviously there is no jurisdiction of the subject-matter. The point is whether defendants can resort to the records of the Surrogate’s Court to establish the fact that no vacancy existed when plaintiff was appointed or whether they are bound by the allegation of jurisdictional facts in the petition and the determination of the court thereon. The conclusiveness of the decrees of a Surrogate’s Court has been sweepingly upheld in many cases. It has been said in the broadest terms: “ Where general jurisdiction is given to a court over any subject, and that jurisdiction depends, in a particular case, upon facts which must be brought before the court for its determination upon evidence, and where it is required to act upon such evidence its decision upon the question of its jurisdiction is conclusive until reversed, revoked or vacated.” (O’Connor v. Huggins, 113 N. Y. 511.) This rule, however, implies that the Surrogate’s Court shall exercise its judicial functions in the matter and actually pass upon the questions of jurisdiction. (Roderigas v. East River Savings Bank, 76 N. Y. 316.) It need not take evidence, because its jurisdiction to make the determination drawn in question is “in the absence of fraud or collusion, conclusively, established, by an allegation of the jurisdictional fact's, contained in a writtenpetition.” (Surrogate’s Court Act, § 43, supra.) The allegation in the petition herein is that on or about the 27th day of April, 1904, said Thomas W. Tuite was removed as such administrator by order of this Court ” (the Surrogate’s Court of Richmond county). This allegation, though innocently made, was untrue and, because it was untrue as to a matter of record of which the petitioner was chargeable with notice, it amounted to a constructive fraud on the court of the same nature and effect as an actual and deliberate misrepresentation of fact. (People v. Federated Radio Corp., 244 N. Y. 33, 38.) It was a fraud upon the court, directly affecting the jurisdiction of the court. The court acted on the allegations of the petition. If the fact had been brought to its attention that Tuite’s letters had not been revoked, it might have revoked them. The trouble is that it acted on the petition alone, which was untrue in this regard. The inference is, therefore, impossible that when the court issued letters de bonis non it consciously revoked the prior letters. The court was induced to exercise its authority where it had no jurisdiction. The plaintiff’s letters were not fairly obtained and were, therefore, left open to collateral attack. (Mandeville v. Reynolds, 68 N. Y. 528; Hoes v. N. Y., etc., R. R. Co., 173 N. Y. 435; 1 Freeman on Judgments [5th ed.], § 331; Ferguson v. Crawford, 70 N. Y. 253, 267.)

As to the contention that the defendants are in pari delicto with plaintiff in suppressing. the facts before the Surrogate’s Court and should, therefore, be required to resort to direct attack on the letters, it can only be said that the Surrogate’s Court had no jurisdiction over the subject-matter- — the appointment of an administrator de bonis non. Its letters were, therefore, void in the strictest sense, not merely void as against strangers to the proceeding. Tuite remains the administrator of the estate and may assert his rights as such.

The Statute of Limitations has clearly run against plaintiff individually. There must be an accounting before there is a liability (Matter of Rogers, 153 N. Y. 316) and default on the bond has not been established.

The judgment should be affirmed, with costs.

Cardozo, Ch. J., Crane, Lehman, Kellogg and O’Brien, JJ., concur; Andrews, J., dissents.

Judgment affirmed, etc.


author: Andrews, J.

text:
    Anna M. Matthews, Respondent, v. William T. Matthews, Appellant.
    Jurisdiction — domestic relations — husband and wife — separation — judgment — court may not dispose of nonresident’s property of which it has not taken possession — provision in judgment of separation appointing receiver of non-resident’s property within State and directing payment of alimony therefrom void.
    1. Before a judgment is entered purporting to deal with a nonresident’s property within this State it must appear that by attachment, by injunction, by sequestration, in some manner the court has laid hands upon the property. It may not dispose of a nonresident’s property which is not in its possession.
    2. Where, therefore, prior to a judgment for separation, no proceedings had been taken to give to the court jurisdiction of property within this State of a’non-resident defendant, so much of the judgment is void as decrees that upon personal notice to the defendant, or upon such notice as the court shall direct, the plaintiff may apply for her alimony and expenses payable out of defendant’s real and personal property within the State, appoints a receiver of the property with directions that he take possession thereof and apply it to the payment of such sums as may be awarded to the plaintiff, and enjoins the defendant from disposing of the same. Nor does a provision that the property remain in the hands of the receiver to be subsequently paid out on such notice to the defendant as the court may require cure the defect in jurisdiction.

      Matthews v. Matthews, 220 App. Div. 825, reversed.
    (Argued December 1, 1927;
    decided January 10, 1928.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered July 27, 1927, affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term.

      Richard M. Page and William PL. Page for appellant.
    The trial court had no power or jurisdiction to grant in the original judgment herein an award of alimony, counsel fee and costs in personam against the defendant and provide for sequestration and receivership of his property. (Rigney v. Rigney, 127 N. Y. 408; Burch v. Burch, 116 App. Div. 865; Edwards v. Edson, 119 App. Div. 684; Baylies v. Baylies, 196 App. Div. 677; Pennoyer v. Neff, 95 U. S. 714; Ackerman v. Ackerman, 200 N. Y. 72; Pollitzer v. Pollitzer, 178 App. Div. 744; Walker v. Walker, 155 N. Y. 77; Pennington v. Fourth National Bank, 243 U. S. 269; Matthews v. Matthews, 240 N. Y. 28; Bunnell v. Bunnell, 25 Fed. Rep. 214.) The trial court had no power or jurisdiction to grant in the first amended judgment herein an award of alimony, counsel fee and costs payable out of defendant’s property to be sequestered. (Pennoyer v. Neff, 95 U. S. 714; Matthews v. Matthews, 210 App. Div. 652; 240 N. Y. 28; Burch v. Burch, 116 App. Div. 865; Lynde v. Lynde, 181 U. S. 183; Thrift v. Thrift, 54 Mont. 463; Thompson v. Tanner, 287 Fed. Rep. 980; Minor v. Marysville Land Co., 229 Mich. 72.)

      Barnett E. Kopelman for respondent.
   Andrews, J.

An action for separation was brought by the plaintiff against the defendant who was a resident of New Jersey. No service having been made upon him an order was obtained ex parte under section 1171-a of the Civil Practice Act sequestrating his property within the State and directing the payment from it of counsel fees and alimony. We held the proceeding was in the nature of an attachment. Property of a defendant resident or non-resident, upon whom personal service could not be made within the State, might be seized and held subject to further disposition by the court. But as in the case of an attachment this might not be done as regards a non-resident until by personal or constructive service of the summons jurisdiction of the action had been obtained.' Thereafter the court may enter judgment and dispose of the sequestered property. Here, however, no attempt had been made to serve the defendant. The order, therefore, was vacated ab initio. (Matthews v. Matthews, 240 N. Y. 28.)

Thereafter the plaintiff obtained an order for service of the summons and complaint upon the defendant by publication and such service was made. The defendant did not appear. Proper proof being had, a judgment by default was entered. This original judgment was subsequently amended and as it now stands it decrees the separation of the plaintiff and defendant; decrees that upon personal notice to the defendant or upon such notice as the court shall direct, the plaintiff may apply for her alimony and expenses payable out of his real and personal property within the State; appoints a receiver of this property with directions that he take possession thereof, and directs the receiver to apply such property to the payment of such sums as may be awarded to the plaintiff, and enjoins the defendant from disposing of the same.

The claim of the appellant is that while the decree of separation is valid here, the decree appointing a receiver of his property is void. He is, as has been said, a nonresident. No valid proceedings under Civil Practice Act, section 1171-a, were taken. Over this property the court has never obtained any jurisdiction whatever.

This is so. In actions for divorce or separation brought by one of our citizens against a non-resident service by publication does, so far as we are concerned, give our courts full jurisdiction to fix the marital status or relations of the plaintiff. We cannot, however, thus give a personal judgment that will bind the defendant except in so far as he has property in this State of which we may take possession. And it is not enough that at the time judgment is rendered he in fact has property within our jurisdiction. The right to dispose of it rests upon a prior seizure. Only so does the defendant receive notice that he has rights which should be protected. It must, therefore, appear before a judgment is entered purporting to deal with a non-resident’s property, that by attachment, by injunction, by sequestration, in some manner, the court has laid hands upon his property within the State. (Helme v. Buckelew, 229 N. Y. 363, 371; Pennoyer v. Neff, 95 U. S. 714.)

In this case nothing was done prior to the judgment. If prior seizure is necessary to give the court jurisdiction to decree counsel fees and alimony payable out of a nonresident’s property within the State, it is also requisite to enable the court to decree the seizure of such property and the vesting of title and possession thereto in one of its officers. No provision that the property shall remain in the hands of a receiver to be subsequently paid out on such notice to the defendant as the court may require cures this defect in jurisdiction. Neither directly nor indirectly may the court so assume to interfere with the property of a non-resident.

This is equally true in an action for separation as in an action for a divorce. All that the court may do is to fix the marital relations of one of our citizens. It may decree the divorce or the separation; it may fix the custody of children, at least if they are within the State; but it may not dispose of a non-resident’s property which is not in its possession. The relations of the parties and the right to alimony and counsel fee are distinct. The right to decree as to the one does not involve the right to decree as to the other. (McGuinness v. McGuinness, 72 N. J. Eq. 381.)

So much of the judgment appealed from as affirmed the provisions in regard to property should be reversed, without costs. Being reversed, the various orders as to the receivership become unimportant and the order of the Appellate Division dismissing such appeals may be affirmed.

Caedozo, Ch. J., Pound, Ceane, Lehman, Kellogg and O’Bbien, JJ., concur.

Judgment accordingly.


text:
    The People of the State of New York, Appellant, v. Hyman Jackerson, Respondent.
    Crimes — receiving stolen property —■ trial — charge — statement in charge that burglary had been established not error where fact of crime had been treated by all at trial as conceded — insufficiency of evidence to establish that sister of burglar was accomplice as matter of law — refusal to so charge proper.
    1. Upon trial of an indictment charging defendant with criminally receiving stolen property a statement by the trial judge, in his charge to the jury, that the burglary and larceny had been judicially established because two thieves had been found guilty of the crime, is an incorrect statement of the law, but does not constitute reversible error where the fact of those crimes having been committed had been treated by all concerned at the trial as established and conceded and defendant’s counsel had failed to ask that the issue be submitted to the jury. It was, therefore, error for the Appellate Division to reverse a judgment of conviction on the ground that the trial judge had erred in charging that the burglary had been established.
    2. Evidence that a sister of one of the thieves, terrorized by him, by his direction had awakened him at two o’clock in the morning, realizing that he planned to commit a burglary, and that the next morning she and her little brother, by his direction, and under threat by him to strike her, removed some labels from stolen goods which had been brought to the house, is insufficient to sustain a claim that she was an accomplice as matter of law with her brother in the burglary and with this defendant in receiving stolen goods. At most it was a question for the jury, and the trial judge properly refused to charge that she was an accomplice as matter of law.

      People v. Jackerson, 214 App. Div. 822, reversed.
    (Submitted November 28, 1927;
    decided January 10, 1928.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered December 31, 1925, which reversed a judgment of the Queens County Court rendered upon a verdict convicting the defendant of criminally receiving stolen goods and granted a new trial.

      Richard S. Newcombe, District Attorney (Thomas T. Thornton of counsel), for appellant.
    The evidence amply justified the verdict and every element of the crime was established. (People v. Walker, 198 N. Y. 329.) The portion of the charge complained of did not prejudice the defendant as the commission of the burglary was not only established by the evidence but was not disputed by the defendant. (People v. Walker, 198 N. Y. 329.) The trial court properly declined to charge as a matter of law that the witnesses Katherine and George Irwin were accomplices. (People v. Zucker, 20 App. Div. 363; 154 N. Y. 770; People v. Sweeney, 213 N. Y. 37; People v. Bright, 203 N. Y. 73; People v. Crossman, 241 N. Y. 138; People v. Elliott, 155 App. Div. 486; People v. McGonegal, 136 N. Y. 62; Bird v. U. S., 187 U. S. 118; People v. Sversky, 216 N. Y. 476; People v. Deamsco, 240 N. Y. 170; People v. Dixon, 231 N. Y. 116; People v. Hooghkirk, 96 N. Y. 149; People v. Ryland, 97 N. Y. 126; People v. Everhardt, 104 N. Y. 591; People v. Elliott, 106 N. Y. 288; People v. Mayhew, 150 N. Y. 346.)

      David Goldstein, Joseph W. Ferris and Meyer Glickstein for respondent.
    Reversible error was committed in the trial court’s removing from the consideration of the jury the question of fact as to the burglary and the theft of the goods and charging that these facts had been judicially determined. (People v. Walker, 198 N. Y. 329; People v. Hartwell, 166 N. Y. 361; People ex rel. Briggs v. Hanley, 185 App. Div. 667; People v. Acerno, 164 App. Div. 541.) The trial court committed reversible error in holding in effect and charging the jury that there was sufficient evidence from which they might find that Katherine Irwin and George Irwin were not accomplices. (People v. Holden, 127 App. Div. 758; Perkle v. State, 11 Ga. App. 98; Burns v. State, 89 Ga. 527; People v. Martin, 13 Cal. App. 96; Ross v. State, 169 Ind. 388; Bain v. State, 67 Misc. Rep. 557; Republica v. McCarthy,
      2 Dall. [Penn.] 86; Burton v. State, 61 Tex. Cr. 196; United States v. Villato, 28 Fed. Cas. 377.)
   Crane, J.

On the 11th day of July, 1924, in the County Court of Queens county, the defendant was found guilty of receiving stolen property in the first-degree, as a second offense. The Appellate Division reversed the judgment of conviction on the law and ordered a new trial, the facts having been examined and no error found therein. In its memorandum opinion, that court held that it was error for the trial judge to charge the jury that the burglary of the Frank store in Hempstead had been established, and that the jury need not waste any time discussing the question, citing People v. Walker (198 N. Y. 329, p. 335). That case held that on the trial of an indictment for receiving stolen goods it is necessary to submit to the jury the question whether or not the goods were stolen. The fact that there is no dispute upon the evidence will not justify the court in taking this element of the crime from the jury. All rules of law, however, have their proper limitations, and one of them is expressed in this case. The court said: “ Moreover, as is frequently the case, if a fact essential to the crime, although not expressly admitted, is undisputed and is treated during the trial by all concerned as established, it would not be reversible error for the court to so charge, unless, and the exception is vital, the defendant should ask to have it submitted to the jury, and in that event, even in such a case, it would be the duty of the court to submit it accordingly.” The trial of this defendant comes within the exception thus stated. The parties throughout the case assumed that Frank’s store in Hempstead had been burglarized and his goods stolen; the counsel for the defendant made no request that this matter be submitted to the jury.

The facts briefly are these. William Irwin and Marquis Curtis were old-time offenders. Irwin lived with his mother and sisters at 445 One Hundred and Twenty-ninth street, Richmond Hill, Queens county, Long Island. Abraham L. Frank maintained a department store at Hempstead, Long Island. On the night of February 10, 1924, it was burglarized, and about $10,000 worth of goods taken. Irwin and Curtis were convicted of the burglary and larceny and sent to State’s prison for .long terms before the trial of this action. They were both in prison under sentence at the time of this trial. Marquis Curtis was brought down from prison by the district attorney and appeared as a witness against the defendant. He was cross-examined at great length by the defendant’s counsel regarding the robbery and his connection with it, all upon the assumption that the robbery had taken place. The following may be taken as illustrating the attitude of the defendant’s counsel:

Q. Now, you went to Hempstead before the robbery, did you not? A. Yes, sir, I did.
“ Q. And did you go there with Willie Irwin? A. I did.
“ Q. About two days before the burglary, is that right? A. Yes.
Q. Now, it was your contention on the trial of your case that the night that you went there you left them on the job, is that right? A. No, my contention was that the thing was no good at all.
Q. Mr. Curtis, you were brought here from where? A. Auburn Prison.
“ Q. You have no hopes of any reward or shortening of the term that you are now serving as a result of the evidence that you have given, is that right? A. To the contrary, it would be simply the other way.”

The sister of Will Irwin, Katherine Irwin, was called as a witness for the People. She had testified against her brother on his trial. The defendant’s counsel in this case not only cross-examined her regarding her testimony upon that former trial, but introduced in evidence part of the stenographer’s minutes containing her test!mony taken upon that trial. Miss Irwin, under cross-examination, said that she had testified on the trials of both Curtis and her brother. The same line of cross-examination was followed with George Irwin, the little brother of Will Irwin, who was called as a witness for the People.'

This trial having been conducted upon the assumption that Frank’s store in Hempstead had been burglarized by Will Irwin and Marquis Curtis, and the district attorney and the defendant’s counsel having treated such burglary as an established fact, it is not at all surprising that the trial justice should have assumed the same attitude in his charge to the jury. His statement to the jury that they need not waste any time discussing the question as to whether Frank’s store was burglarized and his goods stolen, was induced by the fact that the lawyers had not raised any question regarding this element of the crime, and had taken for granted, apparently, in the conduct of the trial, that the store had been burglarized as alleged. The statements by the judge that the burglary and larceny had been judicially established because the two thieves had been found guilty of the crime, was not law, and was an incorrect statement. On the trial of an indictment for receiving stolen goods, the larceny cannot be established merely by showing that someone has been convicted of the larceny. As stated in People v. Walker, every element of the crime of receiving stolen goods, including the larceny, must be proved before the defendant can be convicted. However, this inaccuracy upon" the part of the trial judge in his reasons for concluding that the burglary had been committed and for taking the question from the jury, was not error in this case, for the reason, as we have already stated, that the fact was treated during the trial by all concerned as having been established and conceded.

At the close of the charge the defendant’s counsel took exception to the statement of the judge that it had been judicially established that Frank’s store was burglarized, but he failed to ask that such an issue be submitted to the jury.

For these reasons we think the Appellate Division was in error in reversing the judgment of conviction upon the ground stated.

However, it is necessary for us to consider any other question of law which might have justified the reversal.

As above stated, Curtis, one of the thieves, testified against the defendant. The judge charged that he was an accomplice whose testimony would have to be corroborated. Whether Katherine Irwin and her brother George, a young boy fourteen years of age, were accomplices, the trial judge left to the jury to decide as a question of fact. Personally, I doubt very much whether there was sufficient evidence to justify the jury in finding them to be accomplices. . Whether this be so, or not, the judge was cautious enough to leave it to the jury as a question of fact. No exception was taken to this charge as applicable to Katherine Irwin. Counsel did request the court to charge that she was an accomplice as matter of law, and to his refusal to so charge, took an exception. What are the facts?

Katherine Irwin was a young girl twenty years of age, and so far as this record shows, of good character. She lived at home with her mother and her brothers and grandparents at Richmond Hill. Will Irwin had come home after having served a sentence in prison, and over the protest of his mother, brought Curtis, an ex-convict, with him. He terrorized the home. He was a bad man. He beat and abused his sister until she was obliged to leave home, and find refuge with the probation officer, Mrs. Leary, with whom she was living at the time of the trial. Katherine’s testimony is as follows: Well, my brother was mean to me and I stood for it. He used to beat me. Q. (On cross-examination) The one who got thirty years? A. Yes. * * * If I said that my brother Willie was not working I would have gotten a good beating.

“ Q. So you couldn’t stand that any more and that is why you went to Mrs. Leary? A. I stood it long enough.”

On the night of the burglary, February tenth, this young girl was told by her brother to awaken him and his friends, sleeping in the house, at two o’clock in the morning. This she did, realizing that they planned to burglarize some store. The next morning, when a large quantity of goods of all descriptions had been brought into the home by Will and his pals, she was told, together with her little brother George, to remove some of the labels. She refused, until her brother threatened to strike her.

On the strength of this testimony, it is claimed that this young girl was an accomplice with her brother in the burglary, and with this defendant in receiving stolen goods, an accomplice as matter of law. I do not think that such evidence even raises a question of fact as to complicity.

The generally accepted test as to whether a witness is an accomplice is whether he himself could have been convicted for the offense either as principal or accessory. (People v. Richardson, 222 N. Y. 103, p. 114.) Could Katherine or her brother George have been convicted of being principals either in the commission of burglary, larceny, or receiving stolen goods? The question of intent must always enter as an element of the crime. If Katherine and her brother George acted under fear and with no intent to aid or to participate in the commission of a crime, neither would be guilty of an offense known to the law. One is not to be deemed an accomplice merely because he has knowledge of the intended commission of a crime unless he in some way aids or incites its commission. (People v. Richardson, supra, p. 113.) The waking of the brother at two o’clock in the morning, knowing that he was to commit crime, would not make Katherine an accomplice unless she was part of the conspiracy, and did it with an intention to aid and assist in the commission of the crime. At the very most these were matters for the jury, and it was left to them as a question of fact, under a very fair charge, which in this particular was not excepted to. Clearly, Katherine was not an accomplice as matter of law, and this is what counsel for the defendant insisted upon, and the only question raised by his exception, at this part of the case.

Besides this brother and sister, there was the evidence of the accomplice Curtis, above referred to.

The jury on this evidence and under the charge, might well have found that neither Katherine nor George were accomplices as matter of fact. If they were not, their evidence alone was sufficient to convict the defendant. If they were accomplices — and personally I do not see how in the most favorable light they could have been — there were other circumstances sufficient to justify the jury in finding the corroboration tending to connect the defendant with the commission of the crime. Katherine testified that on the morning of the eleventh, between eight and nine o’clock, her brother telephoned to the home of the defendant, and that in about half an hour thereafter, Jackerson came to their house and bought the stolen property, taking some of it away with him. The telephone number for the witness’ home and the number for the defendant’s phone at his house were not only given by the witness, but also furnished by the officials of the telephone company, who produced their records and slips, showing that at the time stated there was a connection made between the two numbers on a call from the witness’ home. More than this, the defendant, who did not take the stand himself, attempted to prove an alibi, which the jury were justified in viewing with suspicion. His brother testified that on February 11, 1924, the defendant was with him while closing a real estate deal. The transaction was with Benjamin Jackerson, the brother. All the papers in the transaction were in the name of Benjamin Jackerson. The defendant apparently had no connection whatever with the sale, except as appears from the oral testimony of the brother. His testimony was considerably weakened on cross-examination.

As before stated, the Appellate Division, on a review of all the evidence, found it sufficient to justify the conviction of the defendant as guilty beyond a reasonable doubt. Its order states that the facts had been examined and no error found therein. The reversal was on the law. We find no error of law warranting the reversal which leads to an affirmance of the judgment of conviction, and a reversal of the judgment of the Appellate Division. The judgment of the Appellate Division should be reversed, and the judgment of conviction affirmed.

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

Judgment accordingly.