text:
    The People of the State of New York, Respondent, v. Thomas Moran, Appellant.
    Crimes — murder in first degree — erroneous charge leaving case to jury upon single theory of homicide by one engaged in commission of felony — ruling that if defendant killed a policeman in an effort to escape after killing another it was homicide while engaged in commission of felony, error.
    1. It was error for the trial judge, upon the trial of an indictment for murder in the first degree, to send the case to the jury upon the single theory of a homicide by one engaged in the commission of a felony (Penal Law, § 1044, subd. 2) where the evidence showed that defendant and four companions being halted by two policemen, defendant drew a revolver and fired two shots at one officer and a third one at the other, killing them both. The killing was not done in circumstances excluding every possible hypothesis except one of homicide while engaged in another or independent felony.
    2. A ruling that if defendant killed the second officer in an effort to escape after killing the first, this was homicide while engaged in the commission of a felony, is erroneous. If defendant was trying to escape, the first felony was over. The felonious assault on the second officer that then begun was not independent of the homicide. It was the homicide itself. (People v. Wagner, 245 N. Y. 143, distinguished.)
    (Argued June 8, 1927;
    decided July 20, 1927.)
    Appeal from a judgment of the Kings County Court, rendered February 2, 1927, -upon a verdict convicting the defendant of the crime of murder in the first degree.

      Peter P. Smith and Dominic B. Griffin for appellant.
    The trial court committed reversible error in refusing to charge that the jury could bring in a verdict of murder in the second degree or of manslaughter, for the reason that it was possible in view of the facts in this case to justify a verdict of murder in the second degree or of manslaughter in the first degree. (People v. Koerber, 244 N. Y. 147; People v. Schleiman, 197 N. Y. 383; People v. Van Norman, 231 N. Y. 454; People v. Marwig, 227 N. Y. 382; People v. Marendi, 213 N. Y. 600; People v. Spohr, 206 N. Y. 516; People v. Hüter, 184 N. Y. 237.)

      Charles J. Dodd, District Attorney (James I. Cuff and Henry J. Walsh of counsel), for respondent.
    The trial court properly submitted the case to the jury under the provisions of section 1044, subdivision 2, of the Penal Law, as a homicide committed in the perpetration of a felony. (People v. Wagner, 245 N. Y. 143; People v. Patini, 208 N. Y. 176; People v. Giblin, 115 N. Y. 196; People v. Miles, 143 N. Y. 383.)
   Cardozo, Ch. J.

On November 19, 1926, the defendant with four companions was riding in a motor car in Brooklyn, New York. Two officers, coming up in a police department car, ordered defendant’s car to stop. The driver, LaCurto, obeyed, though the defendant cried to him to go on. The officers, Byrns and Daskiewicz, stepped out of the police car; the defendant and some of his companions out of theirs. At once the defendant drew a revolver, shouting, “ Stick them up.” He fired two shots at Daskiewicz, who had made a movement as if to draw a weapon. He fired another shot, the third one, at Byrns, who made a jump as if to seize him. This is his narrative. It is also that of Cahill, his companion. Another companion, LaCurto, a witness for the defense, states the order of events differently. According to him, the first shot was fired at Daskiewicz, the second at Byrns, and the third again at Daskiewicz. Both officers died as the result of their wounds. The defendant fled and hid, but surrendered a few days later. Questioned then by the district attorney, he made a full confession, asserting with bravado that he wished to go to the electric chair. He declined to consult with counsel or to follow their advice. Evidence was offered to the effect that he was insane, the victim of delirium induced by epilepsy. Evidence to the contrary was offered by the People. He has been tried and convicted upon the indictment for the murder of Byrns.

The judgment must be reversed because of basic error in the charge. The trial judge left the case to the jury upon the single theory of a homicide by one engaged in the commission of a felony (Penal Law, § 1044, subd. 2). He confined the jury to a choice between a verdict of acquittal and one of murder in the first degree. He refused to submit the other degrees of homicide. He refused to permit counsel, in summing up the case, to talk about the other degrees. He said that if the defendant after shooting Daskiewicz, shot and killed Byrns in an effort to escape, this was homicide while engaged in the commission of a felony, and so murder in the first degree irrespective of intent. The jury were not to consider whether the defendant had fired with a deliberate and premeditated design to kill. Enough that Daskiewicz had been shot, and that the defendant v as escaping.

Repeated decisions of this court bear witness to the fact that such is not the law (People v. Hüter, 184 N. Y. 237; People v. Schleiman, 197 N. Y. 383; People v. Spohr, 206 N. Y. 516; People v. Van Norman, 231 N. Y. 454; People v. Koerber, 244 N. Y. 147, 150; People v. Wagner, 245 N. Y. 143, 148, 149). Homicide is murder in the first degree when perpetrated with a deliberate and premeditated design to kill, or, without such design, while engaged in the commission of a felony. To make the quality of the intent indifferent, it is not enough to show that the homicide was felonious, or that there was a felonious assault which culminated in homicide (People v. Hüter, supra). Such a holding would mean that every homicide, not justifiable or excusable, would occur in the commission of a felony, with the result that intent to kill and deliberation and premeditation would never be essential (People v. Wagner, supra, at p. 148). The felony that eliminates the quality of the intent must be one that is independent of the homicide and of the assault merged therein, as, e. g., robbery or larceny or burglary or rape. Cases are found at times where the inculpatory facts are susceptible of one interpretation only: either the one accused was engaged in an independent felony at the time of the killing, or he did not kill at all. In such conditions the law does not say that other forms or grades of homicide shall be submitted to the jury (People v. Schleiman, supra). If, however, the facts are susceptible of varying interpretations, there must be a submission of whatever forms and grade comport with the proofs and the indictment (People v. Van Norman, supra; People v. Koerber, supra). The statute is explicit. Upon the trial of an indictment, the prisoner may be convicted of the crime charged therein, or of a lesser degree of the same crime, or of an attempt to commit the crime so charged, or of an attempt to commit a lesser degree of the same crime ” (Penal Law, § 610; cf. Code Crim. Pro. § 444). Whenever intent becomes material, its quality or persistence — the deranging influence of fear or sudden impulse or feebleness of mind or will — is matter for the jury if such emotions or disabilities can conceivably have affected the thought or purpose of the actor.

This killing was not done in circumstances excluding every possible hypothesis except one of homicide while engaged in another or independent felony. The trial judge told the jury that the defendant was engaged in such a felony if before he had been placed in the lawful custody of an officer, he shot Officer Byrns in an effort to escape. We have held exactly to the contrary (People v. Hüter, supra; People v. Van Norman, supra; People v. Marendi, 213 N. Y. 600, 606; People v. Marwig, 227 N. Y. 382, 386). The very meaning of flight is desistance or abandonment, unless, indeed, in special circumstances as in cases where a thief is fleeing with his loot. If the defendant was trying to escape, then the first felony, the assault upon Daskiewicz, was over. A second felony had begun, a felonious assault on Byrns. The felony then begun was not independent of the homicide. It was the homicide itself.

We are told that Byrns grappled with the defendant to save a brother officer from the threat of fresh attack, or that so a jury might determine. Reference is then made to People v. Wagner (supra) as authority for. a holding that a struggle thus begun is one connected with another felony so that intent is unimportant. In all this, there is a futile attempt to split into unrelated parts an indivisible transaction. The attack upon Daskiewicz was not separate and distinct in motive or origin from the one upon Byrns. The summons by the defendant to surrender was aimed equally at each, and so was the threat of the revolver which he drew from his pocket to emphasize his words. At that very moment there began a felonious assault directed against both, against one as plainly as the other (Penal Law, § 240, subd. 1). Byrns did not plunge into a fight to which he had hitherto been a stranger, intent upon rescue and nothing else. He was in the fight from the beginning, a sharer of its perils from the moment the assault began (cf. People v. Spohr, supra). We can only guess at the motive with which he grappled with his assailant, and a jury could do no more. The testimony for the People is that Daskiewicz at that stage of the affray had already been shot twice. There is nothing in such evidence to show that another shot at him was planned or that Byrns so supposed. The inference is just as reasonable that Byrns was trying to defend his own fife, or to foil an escape by arresting the assailant. Indeed there seems to have been no thought upon the trial that his motive, whether rescue or something else, would affect the nature of the crime. The' jurors were never asked to say whether he had joined in the struggle with one motive or another. They were told on the contrary that a shot to escape after an attack upon another was a shot by one engaged in the commission of a felony.

Applied to such facts, our ruling in People v. Wagner (supra), recently decided, is far from an authority to sustain the People’s judgment. Wagner was engaged in an assault upon a woman when Basto, another occupant of the same house, came to the woman’s rescue, and in the ensuing fight was killed. We held that the trial judge did not err in permitting the jury to say that the homicide was by one engaged in a separate or independent felony, the assault upon the woman. The other grades of homicide were charged. The jury were not told that the evidence was susceptible of one interpretation and no other. The case was put to them in all its phases, with instructions appropriate to each. There is little need to elaborate distinctions. They appear upon the surface. Basto, a stranger to the fight, plunged into it while it was yet in progress, to stay the commission of a felony upon the person of another.

This court has given warning more than once that the conditions justifying submission of the “ felony ” grade of homicide to the exclusion of all others must be understood to be “ exceptional ” (People v. Schlieman, supra). Such a submission is proper only where there is no possible view of the facts which would justify any other verdict except a conviction of the crime charged or an acquittal ” (People v. Schleiman, supra; People v. Van Norman, supra; People v. Koerber, supra). Apparently the warning has need to be repeated. Evidence uncertain in its implications must not be warped or strained to force a jury into the dilemma of choosing between death and freedom. We do not say that this jury, with choice unconstrained, would have chosen otherwise than it did. There was ample evidence to justify a verdict of deliberate and premeditated murder if that issue had been submitted. It never was. The reason it never was is that the jurors must then have been informed of the range and measure of their power. We may not “ sustain a conviction erroneously secured on one theory on the conjecture that it would have followed just the same if the correct theory had been applied ” (Hiscock, Ch. J.,

in People v. Smith, 232 N. Y. 239, 244). A criminal, however shocking his crime, is not to answer for it with forfeiture of life or liberty till tried and convicted in conformity with law (People v. Sobieskoda, 235 N. Y. 411, 420; People v. Pettanza, 207 N. Y. 560, 567).

The judgment of conviction should be reversed and a new trial ordered.

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

Judgment reversed, etc.


source: Caselaw Access Project

author: O’Bbien, J.

license: Public Domain

text:
    The People of the State of New York, Respondent, v. Thomas J. Clougher, Appellant.
    Crimes — officers — receiving gratuity for doing or omitting to do official act — bribery — accomplice — question for jury whether witness is accomplice where different inferences may be drawn from facts — .sufficiency of evidence to sustain conviction for taking gratuity in violation of section 1826 of Penal Law — conviction for bribery under section 372 also proper.
    1. One can be considered an accomplice as matter of law only when he can be prosecuted as a principal at common law. He must be shown to have counseled, induced or encouraged the crime. When questions of fact arise whether a witness has done any of those things and different inferences can be drawn from such facts, it is the jury not the court that must determine.
    2. Where, upon trial of an indictment charging defendant with receiving a gratuity in violation of section 1826 and with bribery' in violation of section 372 of the Penal Law, by no possibility could the evidence sustain a finding that a certain witness counseled or induced the commission of the crime or commanded or procured it and the evidence as to whether she aided or abetted it is conflicting, the question whether she so became an accomplice was properly left to the jury.
    3. Section 1826 of the Penal Law, which provides that' any person employed by or in the office of a public officer who receives or agrees to receive any money for doing or omitting to do any official act is guilty of a felony, includes all public functionaries and an agreement to take something for performing or omitting to perfom some discretionary act to which he has some actual relation by virtue of his employment is enough to constitute the crime. Proof, therefore, that defendant was secretary to the health commissioner and, by implication allowing only one reasonable inference, that he caused the assistant secretary to procure the commissioner’s approval to the issue of a temporary permit for the admission of cream from a foreign state and omitted to remind the commissioner, as was his duty, of the continued existence of the permit, and that he accepted money for these acts and omissions, was sufficient to sustain a finding that defendant had violated the section as alleged in the indictment.
    4. Defendant was also properly convicted under section 372 of the Penal Law. The jury found upon evidence from which the conclusion reasonably follows that he accepted a bribe and previously agreed to accept it upon the understanding that his opinion and action should thereby be influenced. Under section 372 such an agreement and the receipt of money together constitute a single crime. When any person, who executes any of the functions of a public office not explicitly pointed out in article 170, makes an agreement by which his opinion is to be influenced for a consideration, he violates section 372.

      People v. Clougher, 220 App. Div. 712, affirmed.
    (Argued June 15, 1927;
    decided July 20, 1927.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the first judicial department, entered April 22, 1927,' which affirmed a judgment of the Bronx County Court, rendered upon a verdict convicting the defendant of the crimes of taking unlawful fees and of bribery.

      James C. Van Siclen, Henry Vollmer, Jr., and George C. Wildermuth for appellant.
    The witness Sprey, upon whose testimony the People rely for corroboration, is an accomplice as á matter of law. (People v. O’Farrell, 175 N. Y. 323; People v. Cohen, 223 N. Y. 406; People v. Hayes, 210 App. Div. 549; People v. Doyle, 107 Misc. Rep. 268; People v. Grossman, 241 N. Y. 138; People v. Youlio, 214 App. Div. 793.)

      John E. McGeehan, District Attorney (George B. De Luca, Israel J. P. Adlerman and Herman J. Fliederblum of counsel), for respondent.
    The evidence shows that the defendant violated section 372 of the Penal Law.
      (People v. Jaehne, 103 N. Y. 182; People v. O’ Neill, 109 N. Y. 251; People v. Willis, 24 Misc. Rep. 537; People v. Bissert, 71 App. Div. 118; People v. Duffy, 212 N. Y. 57; People v. Salomon, 212 N. Y. 446; People v. Hyde, 156 App. Div. 618; People v. Cummins, 209 N. Y. 283; People v. Dimick, 107 N. Y. 13; People v. Davis, 56 N. Y. 95; Hope v. People, 83 N. Y. 418.) The witness Helen Sprey was not an accomplice as a matter of law or fact. (People v. McGonegal, 136 N. Y. 62; Bird v. United States, 187 U. S. 118; People v. McGuire, 135 N. Y. 639; People v. Swersky, 216 N. Y. 471; People v. Cohen, 223 N. Y. 406; People v. Wood, 93 Misc. Rep. 701; People v. Youlio, 214 App. Div. 793.)
   O’Bbien, J.

Defendant, a public servant with many of the indicia of a public officer, was indicted in two counts, one for receiving a gratuity as forbidden in section 1826 of the Penal Law and another for taking a bribe upon an agreement that his opinion, judgment and action should be influenced thereby as prohibited in section 372 of the Penal Law. He was found guilty under both counts and sentenced under one. The agreement and the receipt of money were so proved that, under the court’s charge respecting the meaning of these two sections of the Penal Law, the jury could not reasonably entertain any doubt concerning defendant’s guilt of the crimes alleged in the indictment.

The prosecution resulted from circumstances surrounding the issue of a temporary permit by the commissioner of health of the city of New York in August, 1924, for the admission into that city of cream from dairies in Wisconsin. In May or June, 1923, and succeeding months, representatives of Nestles Food Company and its subsidiaries, which owned numerous dairies in that State, visited the health department for the purpose of obtaining permission to market their products in New York city. Among the officials whom they met was defendant, who was secretary to the health commissioner. Shortly after their first visit, the Nestles Company made a contract with a man named Danziger by which he was to receive one dollar per can for each can of cream shipped into New York by that company and sold by him. In the summer of 1923 Danziger showed his contract to defendant who put it in his pocket and kept it. Between that time and August, 1924, when the permit was issued for the admission of Wisconsin cream, Danziger had no fewer than fifty conversations with defendant on the subject of admitting such cream. Defendant assured him, I will take care of it and put it over;” “I will take care of it, just leave it to me.” These conversations occurred at defendant’s home, at his office, at restaurants, hotels, road houses, a golf club and on automobile rides. Defendant advised the health commissioner that western cream was a necessity and he became known throughout the department as an ardent advocate of its admission. In August, 1924, the commissioner’s assistant secretary, a subordinate to defendant, a guest with him and Danziger at half a dozen of their conferences, his intimate friend and later his business partner, telephoned the commissioner, then on vacation, that there was a stringency in the market for cream and that the admission of western cream should be approved. The commissioner, accepting the statement of fact concerning stringency in the cream market, gave his approval for temporary admission. Cream was no scarcer then than at the corresponding season in any other year but defendant assured the commissioner to the contrary on his return from his vacation. This temporary permit never was revoked during that administration nor did defendant, as secretary, ever call the commissioner’s attention to its continuance. When Danziger received his first check as commission from the Nestles Company, he gave ninety per cent of its amount to defendant. The same thing happened upon the receipt of each succeeding check. The total sum paid by Danziger to defendant was approximately $90,000. The specific transaction upon which the indictment is based is the receipt by defendant in Bronx county of $1,080 on January 19, 1925.

No evidence was offered by defendant, no fact controverted except by cross-examination and, consequently, nothing remained for the jury except the function of testing the credibility of the People’s witnesses. The finding concerning the existence of an agreement whereby defendant promised to assist in the admission of the Nestles products and the receipt of money by him in pursuance of such understanding is fully supported by the evidence. Many exceptions were taken. All have been carefully considered but none require discussion except that relating to the question whether a witness named Sprey was an accomplice and those relating to the court’s interpretation of sections 1826 and 372 of the Penal Law.

The corrupt agreement and the receipt of money by defendant were proved by Danziger, an accomplice. Defendant’s official position, his zealous espousal of the cause of western cream, his relations with the assistant secretary, the message to the absent commissioner, the approval of the temporary permit, its continued existence, the presence of Danziger in defendant’s home and their joint inspection of milk depots were proved by officers and employees of the health department who were in no way implicated in the crimes. However, the main corroboration of Danziger, the accomplice, rests upon the testimony of Helen Sprey. It was her corroboration more than any other that tended to connect defendant with the commission of the crimes. At the request of defendant, the court charged that, before a conviction could be had, the jury must find as a fact that the witness Sprey was not an accomplice. The verdict imports that she was not an accomplice. Under no view of the case was the court bound to charge that she was such as matter of law. One can be so considered only when he can be prosecuted as a principal at common law. That is the test. (People v. Swersky, 216 N. Y. 471, 476; People v. Cohen, 223 N. Y. 406, 426.) He must be shown to have counseled, induced or encouraged the crime. (People v. Swersky, supra.) When questions of fact arise whether a witness has done .any of those things and different inferences can be drawn, it is the jury not the court that must, determine. (People v. Katz, 209 N. Y. 311, 332.) The trial judge observed this rule and left the question to the jury. (People v. Crossman, 241 N. Y. 138, 142.) By no possibility could the evidence sustain a contention that the witness Sprey counseled or induced the commission of the crime. Neither did she command or procure it. Whether she aided or abetted it and so became a principal (Penal Law, section 2) is a closer issue but we cannot say that the verdict is without support. On occasions, Danziger handed money to her and asked her to .count it. She did count it and returned it to him who put it in his pocket and later- gave it to defendant. Her testimony is to some extent conflicting; she swears that she knew that Danziger’s intention was to give to the health commissioner’s secretary this money received by Danziger for western cream; again she swears that she did not know that he gave it to defendant for what defendant was doing for him in the department. Under the judge’s instructions the jury was free to determine whether she Was an accomplice. We can see no reversible error in this ruling.

Appellant vigorously argues that there is no evidence to show that he violated section 1826 of the Penal Law as alleged in the indictment. That section provides among other things that any person appointed or employed by or in the office of a public officer who shall in any manner act for or in behalf of any such officer and who receives or agrees to receive any money for doing or omitting to do any official act or for having performed or omitted to perform any act whatsoever directly or indirectly related to any matter in respect to which any duty or discretion is by or in pursuance of law imposed upon or vested in him or may be exercised by him by virtue of his office, or appointment or employment or his actual relation to the matter shall be guilty of a felony. The first count in the indictment follows the language of section 1826 except that in one instance the conjunctive and instead of the disjunctive or is used. It alleges the performance and omission of an official act in respect to which a duty and discretion was by law vested in defendant “ and ” which might be exercised by him by virtue of his employment and his actual relation to the matter. This count alleges more than is required by the statute. The rule that a penal statute is to be strictly construed does not apply to our Penal Law, but all- its provisions must be construed according to their fair import, to promote justice and effect the objects of the law. (Penal Law, section 21.) When section 1826 is so construed, it includes all public functionaries from the most exalted officer of the State to the humblest messenger in a municipal bureau. It denounces as a felony not only the acceptance of a gratuity but also an agreement to accept one by a public servant for the performance of or omision to perform any act whatsoever concerning which any discretion may be exercised by virtue of his actual relation to some official matter. That the law imposes no duty upon him to act and -even that he has no direct authority to act, is not the point. That the act or omission may be perfectly proper in itself cannot take the acceptance of a gratuity or the agreement to accept it outside the statute. That a public employee takes a gratuity or agrees to take it for exercising discretion in relation to a matter to which he bears some official relation is the important thing. That he fails to keep his part of the compact is no defense. He may promise more than he performs, he may take money for something he never does. An agreement to take something for performing or omitting to perform some discretionary act to which he has some actual relation by virtue of bis employment is enough to constitute the crime. This is the fair import of section 1826.

The allegations in the first count were fully proved when the People showed that defendant was secretary to the health commissioner, enjoyed the confidence of his superior, consulted with him as to matters of policy, acted as his assistant and used discretion, sometimes signed his chief’s initials to orders issued in his name, was bound to keep his principal informed concerning the cream situation, that, by implication allowing only one reasonable inference, he caused the assistant secretary to procure the commissioner’s approval to the issue of a temporary permit for the admission of cream, that he omitted to remind the commissioner of the continued existence of the temporary permit, that these were official acts and official omissions in respect to which a duty and discretion might be exercised by him by virtue of his actual relation to the matter and that he accepted money for these acts and omissions. No direct proof was produced that defendant caused his subordinate, the assistant secretary, to induce the commissioner to approve the permit. Nevertheless, the relations existing between these two secretaries, defendant’s motive as revealed by his promise to Danziger and his acceptance of money together with the complete absence of any explanation by the defense justifies the jury’s inference that the assistant secretary’s action was instigated by defendant. Even if it was. not, defendant’s promise was criminal. We think that the direct proof bearing with it such plain implications sustains the first count.

No less vigorously does appellant assail the evidence as insufficient under the second count to show that he violated section 372 of the Penal Law. This section applies to a person who executes any of the functions of a public office not designated in article 170 of the Penal Law. For that reason defendant argues that inasmuch as the first count charges him with being a public officer under section 1826 and as that section is part of article 170, he cannot be convicted under section 372. He may truly be said to have executed some of the functions of a public office within the meaning of section 372. (People v. Salomon, 212 N. Y. 446.) He took an oath of office and had discretion to act in many matters for the health commissioner. The jury found upon evidence from which the conclusion reasonably follows that he accepted a bribe and previously agreed to accept it upon the understanding that his opinion and action should thereby be influenced. Under section 372 (formerly section 72) such an agreement and the receipt of money together constitute a single crime. (People v. Gibson, 191 N. Y. 227, 231.) The secretary to the health commissioner is not a person designated in article 170. Designate ” has an intimate significance. It means to point out, definitely to describe. In article 170 are designated certain officers. The Legislature never could have intended to exclude from prosecution for bribery under section 372 an employee who executes some of the functions of a public office merely because he might literally be included within the general description “ any person appointed or employed by or in the office of a public officer ” as used in section 1826. Article 170 enumerates .several distinct officers such as notaries public, comptrollers, prison officers, county clerks. These and others designated in that article seem to be the ones excluded from prosecution under section 372. A supervisor is no more specially excluded from the language of section 1826 than is a secretary to a health commissioner. Nevertheless a supervisor was properly convicted under section 72, the predecessor of section 372. (People v. Gibson, supra.) If appellant’s argument were sound, no conviction could ever be had under this section. Every one in public service is literally such a person as section 1826 describes. When any person, who executes any of the functions of a public office not explicitly pointed out in article 170, makes an agreement by which his opinion is to be influenced for a consideration, he violates section 372.

The judgment should be affirmed.

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

Judgment affirmed.


author: Crane, J.

text:
    In the Matter of William T. Wendell, Respondent, against John F. Lavin, as County Treasurer of the County of Albany, Appellant.
    Constitutional law —■ counties — officers — office of commissioner of jurors of Albany county a county office in existence when Constitution of 1894 went into effect — Legislature without power thereafter to designate State officers to make appointment of commissioner — custom cannot modify express provision of Constitution — constitutional provision authorizing Legislature to direct as to appointment to offices “ hereafter ” created, speaks as of the time of its adoption — Constitution a new instrument and not merely an amendment of earlier Constitutions — appointment of commissioner in accordance with statutes in effect prior to passage of illegal act valid.
    1. The office of commissioner of jurors of Albany county was a county office which existed under actual laws on and prior to January 1, 1895, when the Constitution of 1894 went into effect. It was not competent, therefore, for the Legislature, by chapter 441 of the Laws of 1899 and chapter 320 of the Laws of 1900, to provide for appointment of the incumbent of that office by resident Supreme Court justices. Under section 2 of article 10 of the Constitution the Legislature cannot select State officers to make appointments to county offices except where such offices are created after the Constitution went into effect.
    2. The validity of such an appointment to office must be considered irrespective of the practice or good faith of public authorities in mating similar ones for the past quarter of a century. Neither practice nor intentions can modify the express provisions of the Constitution.
    3. A contention that if the office was not one created after the present Constitution was adopted, it was one created after the Constitution of 1846, and that the word “ hereafter,” used in the last sentence of section 2 of article 10 of the Constitution of 1894, refers not to that instrument, but to the earlier Constitution, cannot be sustained. This section of the Constitution of 1894 spoke as of the time of its adoption, and the new offices referred to, or offices to be created, were those that came into existence after January 1, 1895.
    4. Nor may a suggestion be sustained that as the Constitution of 1894 continued some of the provisions contained in earlier Constitutions, it was in reality an amendment of those Constitutions, and not a new instrument adopted by the People as and for a complete and new Constitution. The proceedings and resolutions of the convention show otherwise.
    5. The act of 1899 could apply to the county of .Albany in every particular except the power of appointment. As to that the prior laws were not superseded. A commissioner, therefore, appointed by the authorities designated by chapter 557 of the Laws of 1894, as amended by chapter 679 of the Laws of 1896, is a legally appointed commissioner of jurors for Albany county.
    (Argued May 31, 1927;
    decided July 20, 1927.)
    Appeal, under subdivision 3 of section 588 of the Civil Practice Act, from an order of Special Term, entered May 4, 1927, granting a motion for a peremptory order of mandamus to compel the Albany county treasurer to pay salary to the petitioner as commissioner of jurors in the county of Albany for the year 1926.

      Robert E. Whalen for appellant.
    The provisions of chapter 441 of the Laws of 1899 and of chapter 320 of the Laws of 1900, in so far as they attempt to vest in a justice of the Supreme Court power to participate in the designation of a commissioner of jurors for the county of Albany, contravene section 2 of article X of the Constitution. (Matter of Whiting, 2 Barb. 513; Matter of Carpenter, 7 Barb. 30; People ex rel. Bush v. Houghton, 182 N. Y. 301; People v. Raymond, 37 N. Y. 428; Matter of Brenner, 170 N. Y. 185; Matter of Morgan v. Furey, 186 N. Y. 202; People v. Draper, 15 N. Y. 532; People ex rel. Inebriates’ Home v. Comptroller, 152 N. Y. 399; Matter of Keymer, 148 N. Y. 219; People ex rel. Sweet v. Lyman, 157 N. Y. 368.)

      Robert H. McCormic for respondent.
    The office of commissioner of jurors created by chapter 441 of the Laws of 1899 and chapter 320 of the Laws of 1900, was a new office with new functions and did not exist prior to the Constitution of 1894. (People ex rel. Simon v. Bradley, 207 N. Y. 592; Matter of Morgan v. Furey, 186 N. Y. 202; Sun P. & P. Assn. v. Mayor, etc., 8 App. Div. 230; 152 N. Y. 257; People ex rel. Metropolitan St. Ry. Co. v. State Board of Tax Comrs., 174 N. Y. 417.) Even though chapter 557 of the Laws of 1894 established the office of commissioner of jurors as a county office, it was a new office in its relation to the Constitution of 1846, and the Legislature was authorized to change the manner of appointment. (Matter of Allison v. Welde, 172 N. Y. 421; Sweet v. City of Syracuse, 129 N. Y. 316; People ex rel. Killeen v. Angle, 109 N. Y. 568; People ex rel. Jackson v. Potter, 47 N. Y. 375; People v. Fancher, 50 N. Y. 288.)

      Albert Ottinger, Attorney-General (Wendell P. Brown and Amos D. Moscrip of counsel), for State of New York.
    The constitutional requirement that county officers shall be elected by the electors or appointed by the boards of supervisors or other county authorities is without application to officers whose offices were created subsequent to the adoption of the Constitution of 1846. (Ely v. Holton, 15 N. Y. 595; Matter of Estate of Prime, 136 N. Y. 347; Sweet v. City of Syracuse, 60 Hun, 28; 129 N. Y. 316; Mangam v. Brooklyn, 98 N. Y. 585; People v. Fancher, 50 N. Y. 288; People v. Potter, 47 N. Y. 375; Matter of N. Y. Dist. R. Co., 42 Hun, 621; 107 N. Y. 42; McKinney on Constitutional Interpretation, § 6; Sedgwick on Statutory & Constitutional Law, 19; Matter of Allison v. Welde, 172 N. Y. 421; People v. Mosher, 45 App. Div. 68; 163 N. Y. 32; Stale Board of Pharmacy v. Bellinger, 138 App. Div. 12; People v. Roberts, 91 Hun, 101; 148 N. Y. 360.) The office of commissioner of jurors, as now existing in the county of Albany, is a new office, created subsequent to the adoption of the Constitution of 1846, and in fact subsequent to the adoption of the Constitution of 1894. (Matter of McAneny v. Board of Estimate, 232 N. Y. 377; People ex rel. Simon v. Bradley, 207 N. Y. 592; Matter of Morgan v. Furey, 186 N. Y. 202; Sun P. & P. Assn. v. Mayor, etc., 8 App. Div. 230; 152 N. Y. 257; People ex rel. Metropolitan S. R. Co. v. State Board of Tax Comrs., 174 N. Y. 417; Matter of Allison v. Welde, 172 N. Y. 421; People v. Palmer, 52 N. Y. 83; People v. Woodruff, 32 N. Y. 355; Hequembourg v. Dunkirk, 49 Hun, 550.) A long-continued course of action under a statute by public officers whose duty it is to construe, execute and apply the act, is entitled to great weight in its construction, and a departure therefrom is not lightly to be made. (Curtis v. Leavitt, 15 N. Y. 9; Farmers’ Bank v. Hale, 59 N. Y. 53; Hassan v. Rochester, 67 N. Y. 528; Southampton v. Mecox Bay Oyster Co., 116 N. Y. 1; People v. Ballard, 134 N. Y. 269; Vail v. R. R. Co., 147 N. Y. 377; City of New York v. N. Y. City Ry. Co., 192 N. Y. 543; Grimmer v. Tenement H. Dept., 205 N. Y. 549; Duryee v. Mayer, 96 N. Y. 477; Matter of City of N. Y., 217 N. Y, 1; Easton v. Pickersgill, 55 N. Y. 310; Mayor, etc., of N. Y. v. Starin, 106 N. Y. 19.)
   Crane, J.

Chapter 441 of the Laws of 1899 established the office of commissioner of jurors in and for the counties of Richmond and Queens, and in any other county of the State where the board of supervisors of the county by resolution so elected. The commissioner was to execute an undertaking, receive a salary, appoint assistants and clerks, and select the trial jurors, determining upon their qualifications and right to exemption. He was also, with the board appointing him, to prepare a list of grand jurors to be drawn by the county clerk. The appointment of the commissioner was to be made by the justices of the Supreme Court residing in the county and the county judge. From this act Albany county was specifically excluded.

By chapter 320 of the Laws of 1900 this exclusion of Albany county was stricken out, and the county was specifically made subject to the provisions of chapter 441 of the Laws of 1899.

The board of supervisors of Albany county on May 8, 1900, passed a resolution pursuant to the above acts establishing the office of commissioner of jurors for that county. Thereupon and for each five years thereafter a board, composed of two justices of the Supreme Court, resident in the county, and the county judge, have appointed a commissioner of jurors; and the petitioner herein is now serving under such appointment.

The constitutionality of the applicant’s appointment has now been challenged. It is said that in so far as the act of 1899 gives the appointment of the commissioner of jurors to Supreme Court justices, that is, State officials, as distinguished from county officials, the act violates section 2 of article X of the State Constitution. The section reads as follows: “ All county officers whose election or appointment is not provided for by this Constitution, shall be elected by the electors of the respective counties or appointed by the boards of supervisors, or other county authorities, as the Legislature shall direct.” As the commissioner of jurors is not a constitutional officer, his appointment must be made by county, not State, authorities. The Legislature can select any county authority it pleases, but it is limited to county, authorities and cannot select a Supreme Court judge or State authority to make the appointment. However, if the commissioner of jurors’ office is one created after the Constitution went into force and effect, the Legislature is not so limited, because the last sentence of section 2 of article X reads: All officers, whose offices may hereafter be created by law, shall be elected by the people, or appointed as the Legislature may direct.”

The applicant in this case, the present commissioner of jurors, claims that chapter 441 of the Laws of 1899 created a new office, an office coming into existence after the Constitution of 1894, and, therefore, the Legislature could provide for his appointment in any way it pleased. The appellant, on the other hand, contends that the commissioner of jurors for Albany county was not a new office; that it had existed prior to the Constitution of 1894, and that, therefore, the Legislature was restricted to county authorities in designating the appointive power. Is the office of the present commissioner of jurors a new office within the meaning of this Constitution of 1894?

This question must be answered irrespective of the action of the public authorities for the last quarter of a century, and without in any way questioning their good faith. No one now or at any time has questioned the purpose or intention of the appointing powers. It is conceded that they have acted under a conscientious belief not only in their power, but in their duty to make the appointment of a commissioner of jurors according to -the direction of the Legislature, as expressed in these Laws of 1899 and 1900, made specifically applicable to Albany county. Nevertheless, neither practice nor intentions can modify the express provisions of the Constitution. Sometimes the interpretation of a doubtful and obscure clause in'an act of the Legislature, or in a Constitution, may be aided by the practice which has grown up under it, but plain and clear provisions of a Constitution require no such aid; they are to be enforced and brought to life early or late, and must not be smothered by the accumulation of custom or violations.

In this spirit do we approach the consideration of chapter 557 of the Laws of 1894, which became a law May 8 of that year. It is entitled, An act to provide for a commission of jurors in counties containing cities of from ninety to ninety-six thousand inhabitants.” It is conceded that Albany county contains such a city. Section 1 provides: “ In every county except the county of Onondaga containing a city of not less than ninety or more than ninety-six thousand inhabitants, * * * the grand jurors for such county, and the petit jurors for each city and village therein shall be selected by a person to be designated by the county judge, surrogate and county clerk of each such county and who shall be known as the commissioner of jurors.” He must be a resident freeholder of the county and his appointment shall be filed with the county clerk. He is to complete the list of names which shall constitute the grand jurors for the county and the petit jurors for each city and village in the county. At such time and place as shall be designated in each city and village, the commissioner of. jurors shall receive evidence of exemptions and shall mark exempt on the fist of the names of those persons found to be exempt. He may strike from the list any person whom he believes to be disqualified to act. A person not claiming exemption at the time and place designated is deemed to have waived it. The commissioner of jurors in each county is to receive a compensation to be paid by the county treasurer and raised by a tax by the board of supervisors.

Reading this act in connection with chapter 441 of the Laws of 1899, it will be readily seen that in the main they relate to the same ofiice and same nature of work by a county official. Chapter 679 of the Laws of 1896 extended the powers of the commissioner of jurors, as designated in the act of 1894, so as to include the drawing of the petit jurors for the county, as well as for the cities and villages. As this act was passed after the Constitution of 1894, we will only consider the duties of the commissioner of jurors as they were in 1894. Albany county at that time had two cities, Albany and Cohoes, possibly three, Watervliet, and five or six villages. The commissioner of jurors, so designated by chapter 557 of the Laws of 1894, was charged with the duty of selecting the grand jurors for the county and the petit jurors for the courts to be held in each of these cities and villages. The method of selection was the same under this law as that described in chapter 441 of the Laws of 1899. Under both laws he was to determine the qualification of the jurors for the respective courts, and pass upon and certify to exemptions. The main difference consists only in the extent of the commissioner’s jurisdiction. By the law of 1894 it was limited to selecting the grand jurors of the county and the petit jurors for the cities and villages. This left out the towns and petit jurors for the county. The act of 1899 extended the commissioner’s jurisdiction to all the trial jurors of the county, which of course included the cities, villages, towns and county. This had previously been done by chapter 679 of the Laws of 1896, but as above stated, I am leaving this law out of consideration for the time being, as I am making a comparison merely between the law of 1894 and the law of 1899, as the Constitution going into effect January 1, 1895, came in between the two. Other features of this law of 1899 are, that the term of office was fixed at five years; an undertaking was required and an assistant and clerk given to the commissioner. Look as I will, I cannot possibly see how the commissioner of jurors under the act of 1899 was a different office to that under the act of 1894. By both acts he was designated the commissioner of jurors; his duty was to procure jurors; he was an official of the county, paid by the county. The later act extended the commissioner’s duties to other local courts, provided additional help, a definite term, a few other details for procedure, and nothing more. None of these modifications or extensions of power or additional requirements made of the office a new office. The duties, powers and privileges in the main were the same, and carried on by an official designated as the commissioner of jurors for the county.

Within all the authorities, chapter 441 of the Laws of 1899 did not create a new office of commissioner of jurors for the county of Albany; that is, one created after the adoption of the Constitution of 1894. (People ex rel. Met. St. Ry. Co. v. Tax Comrs., 174 N. Y. 417, where the cases are reviewed. See, also, Matter of Morgan v. Furey, 186 N. Y. 202; People ex rel. Simon v. Bradley, 207 N. Y. 592; Matter of McAneny v. Bd. of Estimate, etc., 232 N. Y. 377.)

It is said, however, that if the office was not one created-after the present Constitution was adopted, it was one created after the Constitution of 1846, and that the word “ hereafter,” used in the last sentence of section 2 of article X of the Constitution of 1894, refers not to that instrument, but to the earlier Constitution. This claim is based upon the fact that article X, section 2, is taken word for word from the Constitution of 1846.

Both reason and authority compel us to hold that this section of the Constitution of 1894 spoke as of the time of its adoption, and that the new offices referred to, or offices to be created, were those that came into existence after January 1, 1895.

The same rules apply to the construction of a Constitution as to that of statute law. (People ex rel. Jackson v. Potter, 47 N. Y. 375, pp. 379, 380.) At the time of the meeting of the Convention to frame the Constitution of 1894, there was in force and effect the Statutory Construction Law, section 9 of which read as follows: “ Each of the terms, heretofore, and hereafter, in any provision of a statute, relates to the time such provision takes effect. The term now in any provision of a statute referring to other laws in force, or to persons in office, or to any facts or circumstances as existing, relates to the laws in force, or to the person in office, or to the facts or circumstances existing, respectively, immediately before the taking effect of such provision.” (These sections are now section 23 and section 34 of the General Construction Law; Cons. Laws, ch. 22.) The Constitutional Convention of 1894 included many of the leading lawyers of our State familiar with the fundamental principles of law and the interpretation of statutes and constitutions. Irrespective of any presumption in favor of an intelligent bar, they must have known the Construction Law and the decisions holding that constitutions are tobe construed like statutes. Under the shadow, therefore, of section 9 of the Statutory Construction Law, the convention adopted section 2 of •article X. The last clause of that section, reading: “ All officers, whose offices may hereafter be created by law, shall be elected by the people, or appointed as the Legislature may direct,” referred by the word hereafter,” to the time when the Constitution which they were drafting would take effect.

In Wynehamer v. People (13 N. Y. 378, at p. 426) the provision of the Constitution of 1846, the trial by jury in all cases in which it has heretofore been used shall remain inviolate forever,” was under construction. The case in which trial by jury was there claimed was one in which the right existed by statute, when the Constitution of 1846 was adopted, but did hot exist when the first Constitution, i. e., that of 1777, which contained the same provision, was adopted. It was, therefore, argued that the word “ heretofore ” had to be referred back to the Constitution of 1777, to which Judge Johnson said: Writings are to be construed as to the time when they are made; and ‘ heretofore,’ in this clause, means before 1846, and cannot, to limit its meaning,- be carried back to 1777, and confined to the cases which, at that earlier period, were triable by jury.”

This court, moreover, has had this very point before it in Matter of Brenner (170 N. Y. 185). The office of the commissioner of jurors in the county of Kings was created by chapter 322 of the Laws of 1858. The act provided that he should be appointed by certain specified county officers, namely, the county judge, district attorney, the sheriff, the surrogate, and the two side justices of the Court of Sessions. The office continued down to 1901, when by chapter 602 of the Laws of that year, the appointive power was transferred to the justices of the Appellate Division of the Supreme Court of the second judicial department. The appointment of Jacob Brenner as commissioner by the Appellate Division was challenged on the ground that chapter 602 of the Laws of 1901 was unconstitutional, as violating section 2 of article X of the Constitution of 1894. This court was called upon to decide and did decide three propositions: First, it held that the commissioner of jurors was a county office; second, that although chapter 602 of the Laws of 1901 was a general act providing for the appointment of commissioners of jurors, and for a special jury in civil and criminal actions, in each county of the State having a population of one million or more, it did not create a new and distinct office in the county of Kings; that it was a mere enlargement of the powers or an extension of the office as it existed under the Laws of 1858; and third, that while the commissioner of jurors was an office created after the Constitution of 1846, it nevertheless became subject to the limitations of section 2 of article X of the Constitution of 1894. The appointment by the Appellate Division was held to be in violation of the Constitution. This case necessarily decided that the words, “ whose offices may hereafter be created by law,” applied to the time when the Constitution of 1894 was adopted, and did not relate back to the Constitution of 1846.

A reference to the briefs in the lower courts and in this court, as contained in the appeal book (Vol. 1722, Court of Appeals Cases, Brooklyn Law Library), will show that these points were well briefed, and were passed upon in the opinions of the lower courts. In our opinion, we said in reference to section 2, article X of the Constitution of 1894: “ It is the first sentence of the section that is applicable to this case, and it is settled that the officers there mentioned and designated are those existing under actual laws of the State at the time the present constitution went into effect; that is, such county officers as existed under actual laws on and prior to January first, 1895. It was not competent for the Legislature to provide for the appointment of such officers after that date otherwise than by and through some county authority.”

The commissioner of jurors of Albany county was a county office which existed under actual laws on and prior to January 1,1895. It was not competent, therefore, for the Legislature by the laws of 1899 and 1900, above referred to, to provide for the appointment by resident Supreme Court justices.

I can find no substantial distinction between the duties of the commissioner of jurors as provided in the act of 1858 for the county of Kings and those of the commissioner of jurors provided for Albany under the act of 1894. It is true the act of 1858 related solely to Kings county, while the act of 1894 related generally to counties having a city of from ninety to ninety-six thousand inhabitants. Chapter 602 of the Laws of 1901, covering Kings county, was a general act, applicable to each county having a population of a million or more. There are several provisions relating to the duties and powers of the commissioner of jurors in Kings which did not apply to the office in Albany county. These differences and variations are of minor importance in considering this constitutional provision, which seeks to preserve local autonomy and the power of appointment for local offices as it existed at the time the Constitution was adopted. The fundamental fact remains that Albany as well as Kings county, prior to January 1, 1895, had a commissioner of jurors whose duty it was to provide jurors for the principal courts to be held in the cities and villages of the county. The qualification and exemption of jurors was a matter of investigation by the commissioner of both counties. The personnel and compass of the two offices might have been different due to local conditions, but I can find nothing in the law applicable to Kings county which distinguishes in principle the Brenner case from this one arising in Albany county. The courts should not strain for distinctions to avoid the plain and simple provisions of the Constitution. Our State Constitution deals with fundamental principles and the main outline of State government. It leaves the details for subsequent legislation. This court has heretofore refused to permit the varying details of legislation to modify these fundamental principles.

Matter of Allison v. Welde (172 N. Y. 421) did not modify our decision in the Brenner case. For reasons there stated, chapter 602 of the Laws of 1901, above referred "to, while not creating a new office for Kings county, did create a new office for New York county, for the reason stated in the opinion of Judge Haight. The conditions, in the two counties were entirely different. Judge Haight had dissented in the Brenner case, and apparently again expressed his reasons for his dissent in his opinion in the Welde case. His views, however, on this point were not shared by the majority of the court which agreed with him as to the creation of a new office. The Welde case, however, is important, as indicating that the points here raised were again called to the attention of this court and that it did not vary from its position in the Brenner case.

The suggestion has been made by the respondent that as the Constitution of 1894 continued some of the provisions contained in earlier Constitutions, it was in reality an amendment of those Constitutions, and not

a new instrument adopted by the people as and for a complete and new Constitution. The proceedings and resolutions of the convention show otherwise. (Lincoln's Constitutional History, vol. III.) Writing for this court in People ex rel. Metropolitan St. Ry. Co. v. Tax Comrs. (174 N. Y. 417) Vann, J., refers to article X, section 2, as contained in the third Constitution drafted in 1846, and says: “ The same provision was carried forward, ipsissimis verbis, into our present Constitution.” And in People ex rel. Town of Pelham v. Vil. of Pelham (215 N. Y. 374), referring to this same section and article of the Constitution, this court said: “It [the Legislature] cannot take away those local rights of self-government which the municipal corporation enjoyed when the present Constitution was adopted.” (See, also, People ex rel. McClelland v. Roberts, 148 N. Y. 360, 369; Chittenden v. Wurster, 152 N. Y. 345, 350.)

My conclusion, therefore, is that the Legislature exceeded its authority by providing for the appointment of the commissioner of jurors in Albany county by State officials and not by county authorities, and 'that the applicant is not entitled to the office or to the emoluments thereof. He has not been appointed according to the mandates of the Constitution.

This, however, does not leave the county of Albany without a commissioner of jurors, or without any designated authority to make the appointment. Chapter 441 of the Laws of 1899, as amended by chapter 320 of the Laws of 1900, was extended to the county of Albany. The latter act repealed chapter 557 of the Laws of 1894, as amended by chapter 679 of the Laws of 1896, only in a qualified way. There was no complete repeal. It said that these two earlier laws “ shall not hereafter apply to the county of Albany, but such county shall be subj’ect to the provisions of chapter 441 of the Laws of 1899, as amended by this act.” The act of 1899 could apply to the county of Albany in every particular except the power of appointment. This part of the law was unconstitutional. The law of 1894 did not apply to the county of Albany in so far as the law of 1899 became effective. The Legislature never intended to leave the county of Albany without a commissioner of jurors or a proper power of appointment. If the method provided in the act of 1899 was unconstitutional, the county of Albany could not be subject in this particular to the Laws of 1899, and the Laws of 1894 did apply, and were not superseded. What the Legislature meant and what it virtually said was that the Laws of 1894 did not apply to the county of Albany because the county was deemed subject to the Laws of 1899. Clearly, the Legislature would not create a power of appointment which it believed to be unconstitutional, and, therefore, did not intend to repeal the law of 1894 by substituting for it an unconstitutional or empty power. I cannot imagine that it would knowingly do an empty and useless thing. The commissioner, therefore, appointed by the authorities designated by chapter 557 of the Laws of 1894, as amended by chapter 679 of the Laws of 1896, would be and is a legally appointed commissioner of jurors for Albany county.

For the reasons here stated, the order of the Special Term should be reversed, and the application of the petitioner for a peremptory order of mandamus denied, without costs.

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

Ordered accordingly.


author: Kellogg, J.

text:
    Louis Feldman, Respondent, v. Joseph Barshay, Appellant.
    Real property — title — vendor and purchaser — lien — tax — franchise tax assessed against corporation in 1905 — real property subsequently transferred by corporation to purchaser in good faith — tax not a lien after ten years from time due unless referred to Attorney- General — purchaser has marketable title and purchaser from him not entitled to recover down payment.
    Franchise taxes against a corporation, owner of real property, which became payable, if at all, in 1905, and. were never referred to the Attorney-General pursuant to section 203 of the Tax Law, ceased to be a lien upon the property, which had been transferred to a purchaser in good faith, ten years from the time when such tax became due and payable. (Tax Law, § 207; L. 1917, ch. 410.) The purchaser, therefore, who thereafter contracted to sell the property to the plaintiff, was the owner of an unincumbered marketable title which he was able to convey and plaintiff was not entitled to recover part of the purchase price paid, on the ground that the tax was a lien on the property.

      Feldman v. Barshay, 219 App. Div. 729, reversed.
    (Argued June 14, 1927;
    decided July 20, 1927.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered January 14, .1927, unanimously affirming a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term in an action to impress a vendee's lien in favor of plaintiff upon premises owned by defendant.

      Samuel Silverman and Jacob Saul Barshay for appellant.
    The lien of any franchise taxes due from the Dumont Terrace Company was destroyed in 1917 by chapter 410 of the Laws of 1917. Respondent was, therefore, unjustified in his rejection of appellant’s title and the complaint should, therefore, have been dismissed. The courts below erred in construing section 207 as a possible statute of limitations applicable only in a contest between the State and a bona fide holder. (Keyser v. Lowell, 177 Fed. Rep. 400; People v. Kings County Dev. Co., 48 Cal. App. 72; Talbott v. Hill, 49 App. [D. C.] 96; 261 Fed. Rep. 244; Cassel v. Lowry, 164 Ind. 1; Battle v. Shivers, 39 Ga. 405; Baker v. Kelley, 11 Minn. 480; Bell v. Morrison, 1 Pet. 351; House v. Carr, 185 N. Y. 453; Benton v. Wickwire, 54 N. Y. 226; Isenberg v. Rainier, 70 Misc. Rep. 498; People v. Cowasky, 244 N. Y. 36; Shulthis v. MacDougal, 162 Fed. Rep. 331.)

      Samuel Weiss for respondent.
    The lien of the franchise tax due from the Dumont Terrace Company was a valid and existing incumbrance on November 17,1925. (Devoe v, Leitz, 133 App. Div. 356; Johnson v. Albany & Susquehanna R. R. Co., 54 N. Y. 416; Bernard v. Onderdonk, 98 N. Y. 158.)

      Albert Ottinger, Attorney-General (C. T. Dawes of counsel), for State Tax Commission.
   Kellogg, J.

Every domestic corporation, for the privilege of exercising its corporate franchises, must pay an annual tax to the State based upon its capital employed within the State (Tax Law; Cons. Laws, ch. 60, sec. 182); it must, between the fifteenth day of November and the fifteenth day of December in each year, make a written report to the Tax Commission, stating its condition at the close of business on the preceding 31st day of October and particularly stating the capital employed by it during the year previous to such date (Id. sec. 192); the Tax Commission must, from such report or other data, order and state an account for the tax due the State” (Id. sec. 195); notice in writing must be given by the Commission to the corporation of the auditing and stating of the account

(Id. sec. 196); a tax imposed by section 182 * * * shall be due and payable into the State treasury on or before the fifteenth day of January in each year ” (Id. sec. 197); “ such tax shall be a lien upon and bind all the real and personal property of the corporation * * * from the time when it is payable until the same is paid in full.” Whether, Under these sections, in the absence of a report by the corporation, in default of an audit and statement by the Tax Commission, an unascertained franchise tax becomes, from the fifteenth day of January following the due date for the corporate report, a lien upon ” the real property of the corporation “ until the same is paid in full,” is an interesting question. It is a question, however, which we do not find it necessary to decide, and, therefore, refrain from deciding. If the franchise taxes, payable by the Dumont Terrace Company for the years 1904 and 1905, originally became a fien upon the real property owned by it in the year 1905 and now the subject of this controversy, they ceased to be a hen thereupon by the force of the provisions of section 207 of the Tax Law, as amended by chapter 410 of the Laws of 1917. That section provides that “ as to real estate in the hands of persons who are owners thereof who would be purchasers in good faith but for such tax or penalty * * * all taxes and penalties which have prior to April first, nineteen hundred and seventeen, become due and payable pursuant to this article, and which have not been referred to the attorney-general pursuant to section two hundred and three of this chapter, shall cease to be a lien on such real estate as against such purchasers or holders, after the expiration of ten years from the time when such tax became due and payable.” The taxes in question became payable, if at all, in the year 1905; they never were referred to the Attorney-General pursuant to the provisions of section 203; the defendant, “but for such tax or penalty,” was a purchaser in good faith of the property in question; therefore, the taxes ceased to constitute a lien upon the property ten years from the time when such tax became due and payable,” or in the year 1915. It follows that the defendant, when he contracted to sell the property to the plaintiff, was the owner of an unincumbered marketable title, and was able to convey such a title to the plaintiff. The plaintiff, therefore, was not entitled to recover the sum paid to the defendant, in part payment of the purchase price, and the judgment rendered was erroneous.

The judgment of the Appellate Division and that of the Special Term should be reversed and the complaint dismissed, with costs in all courts.

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

Judgment accordingly.


author: Cardozo, Ch. J.

text:
    John L. Jackson, Respondent, v. Ruby H. Tallmadge et al., Appellants.
    Fraudulent conveyance — debtor and creditor — parties — assignment by wife of insurance policy on life of husband mailed to brother in this State — no presumption of acceptance— death of husband and formation by brother of trust of proceeds of policy — transfer took place only on formation of trust and trustee took subject to rights of creditors — son not necessary party in action to set aside trust as fraudulent.
    1. Where a resident of a foreign State insured his life for the benefit of bis wife and thereafter, both having become insolvent, she mailed an assignment of the policy to her brother in this State with a statement that she would explain the object on meeting him, her intention being to apply to him for loans on the strength of the security, but her husband dying three days later, she came to this State and explained to her brother that the proceeds of the policy must be preserved for the support of herself and son, whereupon a trust was declared, transfer of the policy was effected in this State and title did not pass until the creation of the trust.
    2. If delivery before death of the husband be assumed, it did not divest title until acceptance and under the circumstances acceptance will not be presumed; furthermore, the assignee could accept nothing but what was then intended, a mere pledge. The trustee, therefore, took subject to the rights of creditors and an action may be maintained co set aside the transfer as fraudulent.
    3. A contention that the son should have been joined as a defendant and that no decree may be pronounced without him cannot be sustained. There is no question at issue between trustee and beneficiaries or between the beneficiaries themselves. The question is between the trustee and a creditor, a stranger to the trust, who insists that the title to the fund is subject to his hen. In a suit for such relief, the trustee represents the beneficiaries, and defends in then-behalf. (First Nat. Bank v. Shuler, 153 N. Y. 163; Cook v. Lake, 50 App. Div. 92, distinguished.)

      Jackson v. Tallmadge, 216 App. Div. 100, affirmed.
    (Argued June 20, 1927;
    decided July 20, 1927.)
    Appeal from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered September 27, 1926, modifying and affirming as modified a judgment in favor of plaintiff entered upon a decision of the court on trial at Special Term.

      Frank H. Hiscock and Hampton H. Halsey for appellants.
    The assignment in question was consummated and, therefore, the contract made in New York State and its validity is to be tested by the laws of that State. Under those laws the interest of a wife during the life of her husband in a policy issued upon his life and payable to her as beneficiary is not reachable by her creditors and, therefore, she may do with it as she pleases. (N. W. Mut. Life Ins. Co. v. Adams, 155 Wis. 335; N. W. Mut. Life Ins. Co. v. Wright, 153 Wis. 252; Kaufman v. State Savings Bank, 151 Mich. 65; Van Buskirk v. Warren, 4 Abb. Ct. App. Dec. 457; Union Bank v. Chapman, 169 N. Y. 538; Griffin v. Brooklyn Ball Club, 68 App. Div. 566; 174 N. Y. 535.) The assignment was an absolute one when made during the fife of the husband and, therefore, valid. Whatever agreement as to the proceeds was subsequently made was detached from the original assignment, was a voluntary act on the part of the assignee and did not impair the validity of the original assignment whereby the wife divested herself of rights under the policy. Moreover, the alleged trust was valid. (Smillie v. Quinn, 90 N. Y. 492.)

      Charles H. Neuman for respondent.
    The validity ol an assignment of a policy of life insurance is governed by the law of the place where the assignment is made. (Dike v. Erie Railway, 45 N. Y. 113; Barry v. Equitable Life Assur. Soc., 59 N. Y. 587; Miller v. Campbell, 140 N. Y. 457; Spencer v. Myers, 150 N. Y. 269; Grand v. Livingston, 4 App. Div. 589; 158 N. Y. 688; Lee v. Abdy, L. R. 17 Q. B. D. 309; Conn. Mutual Life Ins. Co. v. Westervelt, 52 Conn. 586; Union Cent. L. Ins. Co. v. Woods, 11 Ind. App. 335; Pratt v. Globe Mutual Life Ins. Co., 17 S. W. Rep. [Term.] 352.) The assignment by the defendant Tallmadge was made in North Dakota. (Barry v. Equitable Life Assur. Soc., 59 N. Y. 587; Hurlbut v. Hurlbut, 49 Hun, 189; McDonough v. Ætna Life Ins. Co., 38 Misc. Rep. 625; Alexander v. Steinhardt, Walker & Co., L. R. 2 K. B. 208; Northwestern Mut. Life Ins. Co. v. Wright, 153 Wis. 252; Williston on Contracts, 186, § 97.) The agreement between the defendant Tallmadge and the defendant Halsey creating a trust in the insurance proceeds for the benefit of the defendant Tallmadge was made in the State of New York after the maturity of the policy and was fraudulent and void under the laws of the State of New York. (Bolt v. Keyhoe, 30 Hun, 619; 96 N. Y. 646; Crosby v. Stephan, 32 Hun, 478; Commerc. Travelers’ Assn. v. Newkirk, 16 N. Y. Supp. 177; Amberg v. 1Man-hattan Life Ins. Co., 171 N. Y. 314; Schenck v. Barnes, 156 N. Y. 316; Young v. Heermans, 66 N. Y. 374; Sutherland v. Bradner, 116 N. Y. 410; Warner v. Lake, 140 N. Y. 619.) The court may decree that the plaintiff’s judgment be paid Out of the proceeds of the policy in suit without injustice to Edgar Tallmadge, infant son of the defendant Tallmadge. (Fort Stanwix Bank v. Leggett, 51 N. Y. 552; Amer. Bible Society v. Price, 115 Ill. 623; Young v. Heermans, 66 N. Y. 374; Wakeman v. Grover, 4 Paige Ch. 23; Sweet v. Parker, 22 N. J. Eq. 453.)
   Cardozo, Ch. J.

The action is by a judgment creditor to set aside a transfer in fraud of creditors.

Carl E. Tallmadge, a resident of North Dakota, insurehis life in the sum of $25,000 for the benefit of Ruby H. Tallmadge, his wife, the policy being issued by a South Dakota insurance company. Both husband and wife became insolvent, and were threatened with prosecution, civil and criminal. At the same time the husband became critically ill. On February 3, 1923, the wife, then in North Dakota, mailed an assignment of the policy to her brother, the defendant Halsey, in Rochester, New York, intending to apply to him for loans on the strength of this security. Accompanying the assignment was a letter from her lawyer to the effect that on meeting her brother she would explain to him the object of the instrument. The brother had no information in advance that the transfer was to be made. He knew, however, in a general way that the sky was darkened by financial troubles. Upon receiving the assignment on February 7, 1923, he understood at once that the policy was to be held for his sister subject to her use.

Three days later Carl E. Tallmadge died. His widow brought the body to New York for burial, and was met on arrival by her brother. She explained to him that she was without means for her own and her son’s support, and that the proceeds of the policy must be kept beyond the reach of creditors. A trust was then and there declared. There is some conflict in the findings as to its terms. One set of findings is to the effect that the trust was for the benefit of Ruby Tallmadge solely. Another set is to the effect that the trust was for her benefit and her son’s “ as their needs should arise, subject to her orders,” The plaintiff, a New York judgment creditor, assails the trust as fraudulent.

Under the law of New York, a policy of insurance upon the life of a husband for the benefit of his wife is withdrawn in large degree from pursuit by his creditors and also from pursuit by hers (Eadie v. Slimmon, 26 N. Y. 9; Smillie v. Quinn, 90 N. Y. 492; Miller v. Campbell, 140 N, Y. 457). She may assign it with his consent, but not otherwise (Domestic Relations Law; Cons. Laws, ch. 14, § 52), The creditor gains nothing by the mere appointment of a receiver or other .transfer in invitum (Smillie v. Quinn, supra). All this is true, however, only while the husband lives and the policy is yet outstanding. At once upon maturity, it is assignable without restriction and subject like other assets to seizure for the use of creditors (Amberg v. Manhattan Life Ins. Co., 171 N. Y. 314).

The question has been much debated in this case whether the assignment became effective in North Dakota or in New York. There is no evidence in the record that North Dakota has a statute similar to our own. The Special Term applied the law of New York, but even on that basis held the transfer to be fraudulent. The Appellate Division came to the same result, but applied the law of North Dakota, holding that the assignment was delivered when deposited in the mails and that there was a presumption of acceptance as in cases of a gift.

We think the transfer of the policy was effected in New York and that title did not pass until the declaration of the trust. There is no need to determine whether the deposit in the mails without previous request or knowledge of the person named as assignee was equivalent to delivery. There may be significance in the fact that the document was still subject to recall upon notice to the post office (U. S. Postal Laws & Regulations, §§ 531, 533; Crown Point Iron Co. v. Ætna Ins. Co., 127 N. Y. 608, 618, 619; Gately-Haire Co. v. Niagara Fire Ins. Co., 221 N. Y. 162). If delivery be assumed, however, it did not. divest title until coupled with acceptance. Instances there may be of a transfer so plainly beneficial that acceptance is presumed (Albany Hospital v. Albany Guardian Soc., 214 N. Y. 435, 442; Munoz v. Wilson, 111 N. Y. 295, 304). There was no such transfer here. The assignee was not expected to gain any benefit at all. He was to assume responsibilities without profit. He was to act as a buffer between his sister and her creditors, who might be counted on to pester him with lawsuits and trouble him in other ways. There is no presumption of a willingness to stand in such a breach (Pitkin v. City of Montpelier, 85 Vt. 467, 473).

We do not overlook a statement by the brother, confirmed by a finding of the court, that at once upon receipt of the document he resolved to accept any trust that might be necessary to give effect to his sister’s purpose, whatever it might be. At that time her purpose was to use the assignment as a pledge to secure expected loans. Acceptance of such security did not divest the pledgor’s interest as equitable owner, but left it unimpaired, subject only to the lien of advances to be made. The pledgee, however complaisant, could accept nothing more, for nothing more was then intended. Not till the meeting in New York was there an attempt to turn the pledge or mortgage into an assignment of the title subject to a trust. At that time the policy had already matured. Acceptance was then impossible except subject to the rights of creditors (Amberg v. Manhattan Life Ins. Co., supra).

The conclusion thus reached makes it unnecessary to consider whether a like goal could be attained by travel along other paths (Pers. Prop. Law; Cons. Laws, ch. 41, § 34).

A point is now made, though without plea of defect of parties or even objection at the trial, that the son should have been joined as a defendant, and that no decree may be pronounced without him (Civil Prac. Act, § 193). There is no question at issue between trustee and beneficiaries or between the beneficiaries themselves (Matter of Straut, 126 N. Y. 201, 211, 212). The question is between the trustee and a creditor, a stranger to the trust, who insists that the title to the fund is subject to his lien. In a suit for such relief, the trustee represents the beneficiaries, and defends in their behalf (Matter of Straut, supra; Sweet v. Parker, 22 N. J. Eq. 453, 455, 456; Tucker v. Zimmerman, 61 Ga. 599; Vetterlein v. Barnes, 124 U. S. 169, 172; Pomeroy, Remedies & Remedial Rights, § 357). “Where the complainant claims in opposition to the assignment or deed of trust, and seeks to set the same aside on the ground that it is fraudulent and void, he is at liberty to proceed against the fraudulent assignee or trustee, who is the holder of the legal estate of the property, without joining the cestui que trust (Rogers v. Rogers, 3 Paige, 379, 380).

We think the interest of the son, if any, is not of such a nature that the court is under a duty to refuse in his absence to adjudicate the issues. The findings leave it uncertain, to say the least, whether he had any property interest subject to be protected. No payments were to be made to him except upon his mother’s orders. Only a strained view of the transaction would see in it an intention to clothe him with any right or interest in the fund that would be good against her protest (1 Perry on Trusts, § 117). If any shred of right existed, it has been cut off after adequate representation by force of this decree,

Cases tending superficially to uphold a different ruling, are distinguished when- their facts are stated. First National Bank v. Shuler (153 N. Y. 163) was a suit where the omitted defendant was the creator of the trust. Apart from his interest in the surplus, “ he had the right to contend that his estate should be distributed under the terms of the assignment, and that it was a valid and not a fraudulent instrument ” (153 N. Y. at p. 168). Cook v, Lake (50 App. Div. 92) was a suit where a fraudulent grantee had made a conveyance to another, not joined as a defendant, who held the legal title. Here the creator of the trust and the holder of the legal title are parties to the suit and have defended for themselves and for those they represent.

The judgment should be affirmed with costs.

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

Judgment affirmed, etc,