author: Loughran, J.

text:
    The People of the State of New York, Respondent, v. William Corbisiero, Appellant.
    Argued March 2, 1943,
    decided April 15, 1943.

      Martin W. Littleton and Irving Goldberg for appellant.

      Thomas Cradock Hughes, Acting District Attorney (Henry J. Walsh of counsel), for respondent. The appellant’s guilt was proved beyond a reasonable doubt.
   Loughran, J.

By permission of a Judge of this court, the defendant appeals from an affirmance of a judgment convicting him of the crime of murder in the second degree.

He had kept a pastry shop on Hudson avenue north of the intersection thereof with Prospect street in the borough of Brooklyn. Andrea Romano had lived on the opposite side of Hudson avenue, south of that intersection. In the early evening of September 8,1941, Romano was found by the police upon the pavement in front of the defendant’s shop suffering from a stab wound of the abdomen which resulted the next day in his death.

The principal witnesses for the People were a daughter and two sons of Romano. The daughter said she was at home when, on the occasion in question, she heard an outcry in the street and ran to the adjacent intersection where she saw her father standing with his hands over his stomach. After the court had refused to permit her to report a statement which she said had then and there been made to her by her father, she gave this testimony: “ I ran into Willie’s [the defendant’s] store. * * * There I saw him waving a knife. * * * I said, ' What did you stab my father for? What did he ever do to you? ’ * * * Pie then said to me, ' That is all right,’ he said, * I like you, I like you,’ be said to me.” Romano’s two sons were at the shop of the defendant during that same time. Each of them swore he went there alone after separately talking with his father in the street intersection. On their say-so, these two thereafter fetched from their home across the way a pick handle and a hatchet with which they hit the defendant who (according to them) still had a knife in his hand.

George W. Archer, a police officer, examined the defendant’s shop during the same evening and therein saw blood marks leading out to a rear yard where he found-a knife having fresh stains upon it. Later that night, as Archer testified, he questioned the defendant who in answer said he had gone out of his shop through the rear door after he had been beaten by the Romanos. Dr. Alexander S. Wiener, a serologist, pronounced the stains on the knife found by Officer Archer to have been human blood.

Such was the fabric of the case for the People. No attempt is made to sustain the conviction of the defendant on the basis of this showing of the bare fact that Romano had been fatally wounded by somebody. Initially the position of the District Attorney is that the exception recorded against him at the close of his direct case was waived when the defendant undertook to offer evidence on his own side. We assume this to be so. (See 9 Wigmore on Evidence [3d ed.] § 2496; Burton v. United States, 142 Fed. 57. But cf. People v. Bennett, 49 N. Y. 137, 142; People v. Raubvogel, 217 App. Div. 733; Reynolds v. People, 41 How. Pr. 179.)

The defendant did not take the stand. His principal witness —Carmine Stanzione — testified in substance as follows: On the occasion in question, the defendant was sitting with others outside his shop when from the opposite side of the street Romano directed at him a gesture of gross insult. At once, the defendant went over to Romano who in the midst of an ensuing argument struck him on the left arm. The defendant then rushed back to his companions. Romano with his two sons followed soon. One of the sons carried a pick handle, the other a hatchet. Romano had a knife in his hand. As the defendant tried to close the entrance door of his shop upon them, he was battered with the pick handle and hatchet. At that juncture, he grasped the knife out of the hand of Romano and stabbed him in the belly.

Dr. Vincent J. Ariola attended the defendant after the occurrence of the events in issue. He testified to his treatment at that time of a wound five inches long which opened the defendant’s left arm down to the bone. That wound, Dr. Ariola said, was inflicted by a very sharp instrument and could not have been caused by a hatchet.

The People want us to see in the defendant’s proof all that is missing from their own. As we understand it, the point made by the District Attorney is this: The jury must be supposed to have severed Stanzione’s story by casting out his assertion of a seizure of the knife by the defendant from the hostile hand of Romano; the deadly quality of the weapon was bespoken by the character of the fatal wound and indicated an intent to kill; hence the finding of guilt of murder was justifiable in' the end. We cannot agree to this assumption of the right to take the defendant’s evidence that way in order to contrive a case against him which otherwise was non-existent.

Actually Stanzione’s testimony did not eke out the claim of the People. Indeed, the single transaction described by him does not appear to have been on the defendant’s part an unlawful one. We believe the endeavor to give reverse effect to this defensive testimony should not be sanctioned as a means whereby any citizen of the State, however innocent, could be exposed to penal discipline.

In thus dealing with the controversy, we do not mean to imply that a judgment of conviction cannot be founded upon incriminating facts disclosed by an accused in making his defense. (See Phipson on Evidence [8th ed.] p. 10. Cf. People v. Rainier, 127 App. Div. 47.)

The judgments should be reversed and a new trial ordered.

Lehman, Ch. J., Rippey, Lewis, Conway and Desmond, JJ., concur; Finch, J., concurs in result.

Judgments reversed, etc.


source: Caselaw Access Project

author: Lewis, J.

license: Public Domain

text:
    Arthur H. Stoike, Respondent, v. First National Bank of the City of New York, Appellant.
    Argued January 20, 1943,
    decided April 15, 1943.

      Lowell Wadmond and Oliver P. Scaife, III, for appellant.

      Robert S. Garson for respondent.

      Irving J. Levy, Acting Solicitor, United States Department of Labor (Morton Liftin, Bessie Margolin, Arthur E. Reyman and George L. Clarke of counsel), for Administrator of Wage and Hour Division, United States Department of Labor, amicus curies, in support of respondent’s position.
   Lewis, J.

The plaintiff-respondent has thus far been successful in the prosecution of a claim against his employer, the appellant bank, for overtime compensation which he asserts is due him under the maximum hours provision of the Fair Labor Standards Act. (52 Stat. 1060, ch. 676 [June 25, 1938]; U. S. Code, tit. 29, § 201 et seq.)

The case comes to us on an agreed statement of facts (Civ. Prac. Act, § 546) from which it appears that the plaintiff was employed by the defendant bank on November 29, 1937, as a night porter, his duties being to clean portions of the defendant’s twenty-one story building at No. 2 Wall Street in the city of New York. Of the twenty-one stories the first four, two mezzanines and two basements were occupied by the defendant as banking quarters, the upper seventeen stories being rented to tenants. It was incumbent upon the defendant’s building superintendent to arrange each night for the cleaning of the entire building from top floor to basement. To that end there were employed eleven porters who cleaned first the defendant’s banking quarters and then the upper floors occupied by tenants. The plaintiff was in the appellant’s employ from November 29, 1937 until he voluntarily left on April 15, 1939. In the early period of his employment — both before and after the effective date of the Fair Labor Standards Act — the plaintiff did considerable work in the defendant’s banking quarters, dusting and cleaning tables, chairs and office furniture or scrubbing floors and stairs. During the later period of his employment he spent the greater portion of his working hours cleaning public corridors and washrooms on the upper floors.

The Fair Labor Standards Act is a comprehensive legislative scheme designed by Congress to prevent the shipment in interstate commerce of commodities produced in the United States under labor conditions which, as respects wages and hours, fail to conform to standards set up by the Act. It prescribes a 44-hour week. The plaintiff received a weekly wage of $27, or an average of 56*4 cents an hour figured on the basis of a 48-hour week. Subsequent to the effective date of the Act and during fifteen out of twenty-five weeks after the Act became effective, the plaintiff worked forty-eight hours a week. He claims to be entitled to overtime compensation in the amount of $50.63, plus a like amount as liquidated damages and reasonable attorney’s fees and costs.

The defendant resists the demand asserting that upon the agreed facts the Fair Labor Standards Act is inapplicable to the plaintiff’s claim and asks for its dismissal. The plaintiff has been awarded judgment at the Appellate Division (unanimous) in the amount claimed for overtime compensation plus liquidated damages. The present appeal is by leave of the Appellate Division, upon the ground that a question of law is involved which merits review by this court.

The Fair Labor Standards Act (§ 7 subd. a) provides in part: “No employer shall, except as otherwise provided in this section, employ any of his employees who is engaged in commerce or in the production of goods for commerce — (1) for a workweek longer than forty-four hours during the first year from the effective date of this section, * * * , unless such employee receives compensation for his employment in excess of the hours above specified at a rate not less than one and one-half times the regular rate at which he is employed.”

There seems to be no question that the federal statute casts upon the plaintiff the burden of proving that in the performance of work for which he was employed by the defendant he was engaged in interstate commerce or in the production of goods for interstate commerce during the period of asserted overtime employment. (Warren-Bradshaw Drilling Co. v. Hall, 317 U. S. 88.)

In the argument before us counsel for the plaintiff conceded that dusting and cleaning, as performed under ordinary circumstances, do not constitute interstate commerce. But it is said that when, as in the present case, the functions of dusting and cleaning are performed by one as an employee of a bank, the business of which in part is interstate commerce, the employee is engaged in interstate commerce. The plaintiff’s argument is that his labors served to facilitate work performed in the defendant’s private banking quarters where commerce starts — where specie and currency are shipped to points outside the State, where credit is entered and where those other services are rendered which are within that wide range of transactions common to commercial banking.

The defendant, for the purpose of the argument only, concedes that at least a part of the banking services performed in its banking quarters constitutes interstate commerce. It contends, however, and the Appellate Division has recognized that this “ * * * is not a case where the employee was in anywise engaged in the production of goods for commerce.” (264 App. Div. 585, 586.) Accordingly the defendant’s argument goes to the narrow question whether the plaintiff, at the time of his overtime employment, was “ engaged in ” interstate commerce within the intended meaning of section 7 (subd. a) of the Act.

In support of its position we are told by the defendant that, even upon the assumption that its banking business is interstate commerce, the plaintiff has failed upon the record before us to show that the character of his work of cleaning and dusting bore such a relation to the defendant’s banking activities as to justify a finding that plaintiff’s activities themselves constituted interstate commerce. In other words the defendant, as the employer, does not stress the nature of its business. Bather does it place emphasis upon the character of work done by the plaintiff as its employee — thus conforming with the rule that “* * * the provisions of the Act expressly make its application dependent upon the character of the employees’ activities.” (Kirschbaum Co. v. Walling, 316 U. S. 517, 524.)

In reaching a decision favorable to the plaintiff the Appellate Division recognized the fact that Congress had defined certain words and phrases as used in the Act. The statute provides (§3, subd. [b]) that “ For the purposes of this Act an employee shall be deemed to have been engaged in the production of goods if such employee was employed in producing, manufacturing, mining, handling, transporting, or in any other manner working on such goods, or in any process or occupation necessary to the production thereof, in any State.” (Emphasis supplied.) But the definition of “ commerce ” (§3, subd. [b]), as that word is used in the Act, is not so broad in scope: “ ' Commerce ’ means trade, commerce, transportation, transmission, or communication among the several States or from any State to any place outside thereof. ’ ’ The Appellate Division determined that there is no substantial distinction between the two categories of employment described by those statutory definitions and ruled that Congress did not intend to differentiate between the two types of employment thus defined. In other words, in construing section 7 (subd. a) of the Act, the Appellate Division seems to have combined the two definitions, quoted above, by transposing the word necessary ” from its context in the definition of production of goods ” to the definition of commerce.” It has thus produced a resulting composite definition which it has adopted as the basis for its ruling that employees who are engaged in activities “ necessary ” — not to the "production of goods ” but — to “interstate commerce,” are entitled to the benefit of the Act. But the statute does not expressly so state. To the contrary, by defining words and phrases used in the Act, Congress made clear its intention to distinguish between employees engaged in interstate commerce and those engaged in the production of goods for interstate commerce.

We may not disregard the definitive language thus employed; nor may we by judicial construction give effect to an assumed congressional intent. When by definition Congress differentiated between “ commerce ” and production of goods for commerce,” we may not assume it was wholly without purpose. (Cudahy Packing Co. v. Holland, 315 U. S. 357, 366.) When in order to protect interstate commerce Congress has regulated activities which in isolation are merely local, it has normally conveyed its purpose explicitly.” (Federal Trade Comm. v. Bunte Brothers, Inc., 312 U. S. 349, 351.) Furthermore, the legislative history of the enactment of the Fair Labor Standards Act indicates an effort by Congress to restrict the scope of the Act rather than to extend the limits of its field of operation. (See Kirschbaum v. Walling, supra, pp. 522, 523.)

We think that in framing section 7 (subd. a) of the Act Congress intended definitely to distinguish between the scope of those categories of employees which it described as being engaged in commerce ” and those engaged in the production of goods for commerce.” The phrase in commerce ” was not intended to include within its scope that wide field of activities which remotely affect interstate commerce. Whenever Congress, acting under the commerce clause, has wanted to embrace that broader field it has definitely expressed that purpose. Among many examples of such explicit phrasing is found section 10 (subd. a) of the National Labor Relations Act, (49 Stat. 449-457; U. S. Code, tit. 29, §§ 152 [7], 159 [c], 160 [a]) where power was given to the National Labor Relations Board to prevent any person from engaging in any unfair labor practice * * * affecting commerce.” (Emphasis supplied.) In that connection the Supreme Court of the United States in two recent cases —- Walling v. Jacksonville Paper Co., 317 U. S. 564,and Higgins v. Carr Brothers Co., 317 U. S. 572,has pointed out that while Congress saw fit in the National Labor Relations Act (supra), to extend federal control to activities “ affecting commerce,” it chose to confine the application of the Fair Labor Standards Act within narrower limits. It was that restriction to which the same court had previously referred when, in considering the Fair Labor Standards Act, it said —“ The history of the legislation leaves no doubt that Congress chose not to enter areas which it might have occupied.” (Kirschbaum Co. v. Walling, supra, pp. 522, 523.) “ The question of the Act’s coverage depends on the special facts pertaining to the particular business.” (Walling v. Jacksonville Paper Co., supra, p. 572.)

In our endeavor to interpret the phrase engaged in commerce ” we adopt and apply to our present problem the “ practical test ” suggested in Overstreet v. North Shore Corp., 318 U. S. 125, 130 — was the plaintiff’s work of dusting and cleaning the defendant’s banking quarters so closely related to interstate commerce as to be “ in practice and in legal contemplation a part of it.” (See also Pedersen v. Delaware L. & W. R. R. Co., 229 U. S. 146, 151; Shanks v. Delaware L. & W. R. R. Co., 239 U. S. 556, 560.) By the application of that test we think that one of those “ areas ” which Congress chose not to occupy when it fixed the scope of section 7 (subd. a) was employment such as the plaintiff’s. It is our conclusion that the cleaning operations which plaintiff was required to perform in defendant’s banking quarters were not so closely related to the many banking services performed there that we can say as matter of law that plaintiff’s cleaning was a part of such banking services and therefore that he was “ engaged in ” interstate commerce. The plaintiff’s work of cleaning and dusting the quarters in which the functions of banking are performed, although it may contribute remotely to the comfort and convenience of those whose services are vital to its business, is not a step in the process of banking. Indeed, as we consider the activities of those who conduct the vital functions by which the business of the defendant bank is accomplished, the essential characteristics of that portion of its banking service which is interstate commerce are lost before we reach the position held by the plaintiff. If, under the guise of construing section 7 (subd. a), we extend its application beyond those employees who are " engaged in ” interstate commerce and include that vast number of employees whose work, like that of the plaintiff, only remotely affects commerce, we would extend the operation of the Act beyond its intended scope.

We are not unmindful that in Kirschbaum v. Walling (supra), the provisions of section 7 (subd. a), with respect to “ the production of goods for commerce, ’ ’ have — because of the liberal definition of the phrase production of goods ” (§ 3 [j]) — been given a broad construction. But that case, as we view it, is not controlling here where the plaintiff does not claim we are dealing with a problem involving the production of goods for commerce.”

The judgment of the Appellate Division should he reversed and judgment directed in favor of the defendant on the submitted controversy, with costs in this court. (See 290 N. Y. 864.)

Lehman, Ch. J., Finch, Rippey, Conway and Desmond, JJ., concur; Loughran, J., dissents and votes to affirm on the opinion of the Appellate Division.

Judgment accordingly.


text:
    Amando Rivero et al., Appellants, v. City of New York, Respondent, et al., Defendant.
    Argued March 1, 1943,
    decided April 15, 1943.

      Isidor Enselman, Benjamin Jaffe and Maxwell G. Cutler for appellants.

      Thomas D. Thacher, Corporation Counsel (Paxton Blair of counsel), for respondent.
   Loughran, J.

Plaintiffs sued the City of New York to recover damages for personal injuries and for consequent medical and other expenses alleged to have been caused by its negligence. At the close of the entire case, the complaint was dismissed. The Appellate Division affirmed. We gave the plaintiffs leave to bring this appeal.

By appropriate proceedings taken in 1929, the city closed Twelfth Avenue in the Borough of Manhattan from the north side of Fifty-ninth Street to the south side of Seventy-second Street. This space was then conveyed to the New York Central Railroad Company, subject to the right of the city to maintain thereon the elevated express highway which was thereafter erected along the west side of the borough. On such closing, the relinquished area ceased to be a public thoroughfare and became a railroad yard.

On the night of July 30, 1938, the plaintiff Rivero drove his automobile south upon the express highway. He missed the exit to Seventy-second Street. The next outlet was at Fifty-seventh Street. He there descended to Twelfth Avenue and turned north intending to go back to Seventy-second Street. At that time it was raining and the windshield wipers'of the car were in motion. Rivero gives this account of the ensuing accident: “Q. Did you pass 59th Street? A. Yes, I passed 59th Street. Q. Tell us what happened after you passed 59th Street. A. Well, when I passed 59th Street, I felt like my car fell in a hole. * * * Suddenly I press on my brakes and I hit something. That is all I remember. * * * Q. How far past 59th Street did you. go before anything happened? A. About a half a block. Q. When for the first time after you passed 59th Street did you find any car tracks in the street? A. Oh, I should say about a quarter of a block or so. * * * Q. On Twelfth Avenue south of 59th Street how was the street paved? A. That is cobble stone. Q. Cobble stones? Was there any change in the pavement of the street north of 59th Street? A. No. Q. Or was it the same? A. The same. Q. And did this elevated highway that you said was overhead when you made the left turn on Twelfth Avenue at 57th Street, did this elevated highway continue north of 59th Street? A. Yes. Q. The street was just as wide north of 59th Street? A. Yes, sir. * * * Q. Were there elevated pillars supporting this elevated highway south of 59th Street? A. Yes, sir. Q. And did these elevated pillars continue supporting this elevated highway north of 59th Street? A. Yes, sir. * * * Q. Were you rendered unconscious? A. Yes sir. Q. When you came to, Mr. Rivero, where were you? A. I was in the car. * * * Q. Where was your car? A. Well, my car was stuck in between the tracks, my right wheel was in between the tracks and my left wheel was on the outside of the tracks. Q. Where was the front of your car? A. The front of my car was right against that structure. The Court: Against what? The Witness: Against the bumper in the middle of the tracks. * * * Q. Did you see any lights or any signs as you approached the intersection of 59th Street and Twelfth Avenue? A. No, sir.”

We think it was for a jury to say whether the case for the plaintiffs came within a rule of municipal liability which long ago was expressed by us in this manner: " Where a road is so constructed or altered as to present at one point two paths, both of which exhibit the appearance of having been used by travelers, and one of them leads to a dangerous precipice, while the other is quite safe, it is the duty of those having charge of the road to indicate, in a manner not to be mistaken by day or by night, that the unsafe path is' to be avoided; and, if it cannot be otherwise done, to put up such an obstruction as will turn the traveler from the wrong track.” (Denio, C. J., in Ireland v. Oswego H. & S. Plank Road Co., 13 N. Y. 526, 532. See 15 Amer. & Eng. Encyc. of Law [2d ed.] p. 443. Cf. Corcoran v. City of New York, 188 N. Y. 131; Jewhurst v. City of Syracuse, 108 N. Y. 303; White v. Boston, 122 Mass. 491.)

In the view of the Corporation Counsel, the foregoing rule does not apply if, as here, the highway is sold as a going concern rather than with a view toward abandonment.” We cannot assent to that argument. This former roadway was sold by the city for use as a railroad yard. The municipal authorities cannot be presumed to have been without knowledge of the obstructive character of appurtenances necessary to such a system of tracks. The asserted wrong was a failure to safeguard travellers against mistaking the railroad property for the open public route of lower Twelfth Avenue. If protection of that kind was called for, its absence was a defect in the real highway itself.

For the same reason the notice of claim was not defective because of the omission therefrom of any identification of the object with which the plaintiffs collided. The notice charged the city with negligence in maintaining a dangerous condition and nuisance on Twelfth Avenue at or near the intersection of 59th Street, Borough of Manhattan, City of New York, in failing to provide proper signs and safeguards at the intersection of 59th Street and 12th Avenue to indicate the end of the public highway.” This information was sufficient to enable the city to investigate the claim of negligence and nothing more was required. . (Schwartz v. City of New York, 250 N. Y. 332, 335.)

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

Lehman, Ch. J., Finch, Rippey, Lewis, Conway and Desmond, JJ., concur.

Judgments reversed, etc.


author: Desmond, J. Conway, J.

text:
    George H. Fields, Respondent, v. Western Millers Mutual Fire Insurance Company, Appellant. Western Millers Mutual Fire Insurance Company, Appellant, v. George H. Fields et al., Respondents.
    Submitted February 25, 1943,
    decided April 15, 1943.

      C. Addison Keeler for appellant.

      Norman M. Pinsky and Harry Kantor for respondents.
   Desmond, J.

Plaintiff Fields sues on two policies of insurance issued to him by defendant Western Millers Mutual Fire Insurance Company. The complaint describes the two policies as insuring Fields against loss by fire damage to his automobile truck and trailer respectively, then alleges that there was damage by fire to both vehicles while the policies were in effect, and that defendant failed to pay. The insurer’s answer contains, besides certain defenses, a counterclaim against said Fields and against one Lake, which counterclaim has, on the motion of said Fields and Lake, been stricken out for insufficiency. We concern ourselves only with the question of the sufficiency of that counterclaim.

The counterclaim has to do only with the insurance policy covering the tractor. It alleges that the policy was issued to Fields as assured ” with a provision that any loss by fire damage should be paid to said Fields as assured and Autocar Sales & Service Company, Inc., as their interests may appear.” The Autocar Company, says the counterclaim, was the unpaid vendor of the tractor. The policy contained a notation to the effect that there was an encumbrance on said tractor to said Autocar Company in the amount of $1,000. Further describing this policy, which is not in the record, the counterclaim asserts that in the policy there was a provision that“ Autocar Sales & Service Company, Inc., would receive notice in writing of any cancellation of the policy.” The counterclaim informs us that assured Fields failed to pay the premium and that the insurer thereupon proceeded, before the date of the fire, to cancel the policy by notice to Fields but failed (apparently by inadvertence) to give any such notice to the Autocar Company. By reason of this oversight, alleges the insurer, the policy at the time of the fire was cancelled as to Fields but in full force and effect as to the Autocar Company. The counterclaim then describes the transaction whereby Fields had acquired the tractor from the Autocar Company, attaching as an exhibit the conditional sale agreement between those two parties. That contract, in conventional form, requires the payment by Fields to the Autocar Company, of $1,612.50, secured by notes maturing on various dates. By that instrument Fields, the purchaser, agrees to keep the tractor insured against fire by insurance payable to the vendor as its interest may appear. It is further alleged in the counterclaim that one Ellis B. Lake, against whom, as well as Fields, the counterclaim demands judgment, was a co-maker of the notes given as security for payment of the purchase price, although Lake was not a vendee and not an insured under the policy. The counterclaim alleges a default by Fields and Lake on the notes, resulting in an overdue indebtedness, at the time of the fire, of $933.48. The fire damage, according to the counterclaim was $1,008.48, by reason of which, pleads the insurer, the latter became obligated to pay to the Autocar Company, but not to Fields, on the policy, the sum of $933.48, representing the balance due on the conditional sale contract. That sum, says the insurer, it paid to the Autocar Company pursuant to the policy. Thereupon the Autocar Company assigned to the insurer its (vendor’s) rights under the conditional sale contract. As a result of all of this, says the counterclaim, the insurer became by subrogation the owner of a claim against Fields and Lake in the amount of $933.48.

Fields and Lake, moving to dismiss the counterclaim, argue that the payment by the insurer to the Autocar Company was a payment under the policy in which Fields was the insured and that such payment operated to Fields’ benefit so as to pay and extinguish the Autocar Company’s claim under the conditional sale contract. For that reason, and because there is no subrogation clause in the insurance policy, they argue, no subrogation resulted but instead the conditional sale contract was paid off, and the assignment by the Autocar Company was a futility, accomplishing nothing. We agree with that position, as did the courts below, and hold that the insurer by making the payment to the Autocar Company, and by taking the assignment from that company, acquired no rights against Fields (or against Lake) since Fields was, and remained, the insured under the policy, so long as the policy remained in existence. The decisions in this court which require that result are numerous, and, we think, plain in their holdings and in their applicability to this situation. (Throughout this opinion we use “ conditional vendor ” and “ mortgagee ” interchangeably, since the rules of law we are examining are applicable to either.)

When an insurance policy names the owner of goods as the insured, with a “ loss payable to mortgagee ” clause, and there is no other provision as to the mortgagee or in his favor, the mortgagee is a mere nominee of the owner-insured to receive the insurance moneys. (Grosvenor v. Atlantic Fire Ins. Co., 17 N. Y. 391.) When a policy contains additional language to the effect that it is issued to the owner and the mortgagee ‘ ‘ as their interests may appear,” then there is recognized and covered also, the insurable interest of the mortgagee, to the extent of his interest (Mussey v. Atlas Mutual Ins. Co., 14 N. Y. 79); to that extent the insurance is for the mortgagee’s benefit. (Pitney v. Glen’s Falls Ins. Co., 65 N. Y. 6.) In the absence of a subrogation clause (and there is none in this case) the rule is that a payment to a mortgagee under such a policy is a payment pro tanto of the mortgage debt. (Kernochan v. New York Bowery F. Ins. Co., 17 N. Y. 428.) Such a policy accomplishes an insurance of the property and not of the debt, and the only importance of the debt is that it gives the mortgagee an insurable interest in the property. ‘ ‘ The plaintiff held the policy as further security for the debt to apply upon the debt whatever should be received on the policy. Having this effect, the agreement precluded a resort by the defendants, [the insurers] on paying the loss, to the bond and mortgage, by way of subrogation, for their reimbursement.” (Kernochan case, supra, 17 N. Y. at p. 434.) That the Kernochan case states the applicable rule where the policy contains no subrogation clause is made plain by the very cases which, because of the presence of subrogation clauses in the policies, arrive at a different result. The leading case of that type (Foster v. Van Reed, 70 N. Y. 19, 26), says: “ The authorities cited to sustain this position [i. e., the position taken by Fields here] are cases where there was no agreement as to subrogation, and do not establish such a proposition in eases in which there was a clause in the policy, authorizing an assignment in case of loss.” Such a subrogation clause, if not found in the policy, cannot be supplied. A clause to accomplish such a purpose appears in the standard fire insurance policy of the state of New York (printed at length in § 168, Insurance Law, see lines 67 to 85, see Goldstein v. National Liberty Ins. Co., 256 N .Y. 26, 30). This court (in another connection) has held that even where, as in the policy before us, the loss is made payable to the mortgagee as interest may appear, nonetheless the so-called standard mortgagee clause, subrogating the insurer to the mortgagee’s rights on payment to him, cannot be read into the policy by implication. (Hessian Hills Country Club, Inc. v. Home Ins. Co., 262 N. Y. 189.) Some of the other cases in this court pointing out that there can be no subrogation without a subrogation clause are Benjamin v. Saratoga County Mut. Fire Ins. Co. (17 N. Y. 415), Wood v. North Western Ins. Co. (46 N. Y. 421, 424), Hay v. Star Fire Ins. Co. (77 N. Y. 235, 240) and Ulster County Sav. Institution v. Leake (73 N. Y. 161). The Ulster County case puts it this way (p. 164): “If by any arrangement between the mortgagor and mortgagee, the insurance is effected for the benefit of the mortgagor, or if the mortgagor pays the premium and loss ensues, the mortgagor is entitled to the benefit of it by having it applied in payment of his mortgage. ’ ’

Of course if a policy is issued to the mortgagee, procured by him and so written as to cover his interest only, then the owner can claim no rights under it and the insurer may be subrogated as against the owner-mortgagor. Such situations are dealt with in cases like Excelsior Fire Ins. Co. v. Royal Ins. Co. (55 N. Y. 343): “It is settled that when a mortgagee, or one in like position toward property, is insured thereon at his own expense, upon his own motion and for his sole benefit, and a loss happens to it, the insurer, on making compensation, is entitled to an assignment of the rights of the insured.” (p. 359.) But the policy we are here enforcing was not one taken out by a mortgagee for his own sole benefit, nor has it a subrogation clause. There is, therefore, no basis whatever for subrogation, and no efficacy to the assignment.

This rule of law that a policy taken out by an owner to protect his mortgagee as well as himself continues to protect the owner in the event of a payment to the mortgagee, unless otherwise provided, is based on the essential nature of the transaction. Such a policy, furnished to the mortgagee, is not a separate insurance of the debt, but is a separate security for the debt. Under familiar rules, amounts realized by the creditor from such a security, must be credited upon the indebtedness. “ The general rule, that the proceeds of collateral securities in the hands of the creditor are to be applied, when received by him, in the reduction of the debt [citing case] would require that the insurance money, when collected by the plaintiff, [mortgagee] should be applied upon the judgment, and, if sufficient to pay it, should extinguish it.” (Waring v. Loder, 53 N. Y. 581, 584.)

Of course, the insurer may contract for subrogation and such a contract will be enforced. And the insurer may go further and cover by appropriate language the exact situation which here arose, that is, a default by the owner-insured leaving the mortgagee’s rights unimpaired. The “ standard fire insurance policy ” above alluded to contains a paragraph dealing with that contingency and providing in terms that in such a case the insurer, on paying the loss, becomes entitled to subrogation and to an assignment of the mortgage debt. Such clauses have been in use for many years in this State. They “ make the policy operate as an insurance of the mortgagors and the mortgagees separately, and * * * give the mortgagees the same benefit as if they had taken out a separate policy,' free from the conditions imposed upon the owners, making the mortgagees responsible only for their own acts.” (Hastings v. Westchester Fire Ins. Co., 73 N. Y. 141, 154.) The provision for subrogation, found as a part of such a mortgagee clause, is a benefit from mortgagee to insurer, in consideration of the added protection afforded to the former by the clause (Hastings case, same page). Whatever be the law in other jurisdictions, it will be found that in every case in this State where subrogation has been allowed to an insurer who pays the mortgagee despite the insurer’s non-liability to the mortgagor, such subrogation is based on specific language in the policy "to that effect. (See Barile v. Wright, 256 N. Y. 1, 5.) There was, we repeat, no such language here. The policy was a simple one insuring the owner and the mortgagee as their interests might appear. It had no language calculated or sufficient to turn it into some other kind of contract with the mortgagee, if the mortgagor should fail to pay the premium. “ The contract of insurance has its full effect between the parties by payment of the damage, and cannot survive to assume a new face against a third person.” (Shotwell v. Jefferson Ins. Co., 5 Bosworth, 247, 264.) If the insurer wanted a subrogation clause, it knew how to require one. “ The insurer makes it part of his contract that he shall have these privileges, and in that view undertakes the risk and graduates his premium. There was no such stipulation here.” (Shotwell case supra, p. 264.) There being no right to subrogation, the insurer, “ upon payment of the indemnity promised, simply performs his contract ” (Clinton v. Hope Ins. Co., 45 N. Y. 454, 467), and that is the end of the whole thing.

We are told, however, that this is the kind of case where subrogation may be based not upon express agreement but upon principles of natural justice which, frowning upon unjust enrichments, require that one who furnishes money to pay a debt (such as a surety) should be substituted for the creditor and should acquire the latter’s rights. But the insurer here paid out its money because it was an insurer and because there had been loss and damage from a peril insured against. The insurer was not paying off the Autocar Company’s mortgage as surety for Fields and Lake. The obligation it satisfied was its own obligation under a contract issued to, and insuring, Fields. As to the equities of the situation, it was the insurer’s own delinquency in failing to notify the vendor of the vendee’s failure to pay the premium, that was the proximate cause of the insurer’s difficulties. Had the insurer given that notice, one of two things would have thereupon happened. Either the vendor would have paid the premium and thus kept both vendor and vendee covered, or the insurer would have been relieved from any liability to either.

We should point out that, in saying that there is no subrogation clause in this policy, we have not overlooked the clause which puts the insurer in a position to demand “ from the assured an assignment of all right of recovery against any party for loss or damage * * Clearly that means an assignment of a claim against some third party for damaging the vehicle.

The judgments appealed from should be affirmed with costs.

Conway, J.

(dissenting). This is an appeal by defendant Western Millers Mutual Fire Insurance Company from judgments entered upon orders of the Appellate Division, Third Department, affirming orders made at Special Term, Broome County, granting motions made by plaintiff Fields and defendant Lake, directing the dismissal of the counterclaim contained in the answer of said defendant company upon the ground that it failed to state facts sufficient to constitute a cause of action.

On this appeal we consider only the counterclaim contained in the answer of the defendant insurance company without reference to the complaint or the other portions of the defendant’s answer.

The plaintiff Fields purchased a tractor from the Autocar Sales & Service Co., Inc., hereinafter called Autocar. The company retained title to the automobile, payment for which was to be made under the terms of a conditional sale contract, in fifteen installments represented by promissory notes. The contract and the notes were signed by Fields and also by one Lake, whose liability depends upon the same facts as does Fields’ liability. The conditional sale contract provided that the purchaser Fields should forthwith insure the automobile against fire, theft and collision to an amount and in a company satisfactory to Autocar. A policy of insurance was obtained in the defendant company which provided that the loss should be payable, as interest might appear, to Assured and Autocar. The named Assured was the plaintiff Fields. The first of the promissory notes was payable September 20, 1940. The last monthly note was due on November 20,1941. Fields defaulted in payment of the installments and notes due in February, April, May, June and July, 1941. On June 2,1941, the automobile was damaged by fire to such an extent that when it had been repossessed by Autocar and sold at public auction it brought but seventy-five dollars. Fields had not only defaulted in payment of the installments and notes but he had defaulted in payment of the premium for the insurance upon the automobile. The insurance had been cancelled by notice to the Assured. No notice of cancellation had been given to Autocar and concededly the defendant insurance company continued to be obligated to Autocar upon the fire insurance policy. The result was that at the time of the fire there was no existing insurance for which anyone had paid a premium. There was insurance, however, covering the interest of Autocar in the automobile subject to the conditional sale contract. In other words there was a contract of insurance covering only the interest of the vendor under the conditional sale agreement. To that contract the purchaser or vendee had become a stranger. The purchaser Fields was still obligated under his agreement and upon his promissory notes to pay for the automobile and had breached his agreement to carry fire insurance upon the subject of the sale contract. After the cancellation, Fields no longer had any rights under the policy. He was no longer an assured.

There is a standard mortgagee clause in the standard fire insurance policy provided by statute in this State. It reads as follows: “ On payment to such mortgagee of any sum for loss or damage hereunder, if this Company shall claim that as to the mortgagor or owner, no liability existed, it shall, to the extent of such payment be subrogated to the mortgagee’s right of recovery and claim upon the collateral to the mortgage debt, but without impairing the mortgagee’s right to sue; or it may pay the mortgage debt and require an assignment thereof and of the mortgage.” There is no such standard policy or provision in this State affecting automobiles either by statute or departmental regulation. There was no such clause in the fire policy herein involved.

After the repossession and sale of the automobile herein there remained due to Autocar under the contract and upon the promissory notes, the sum of $933.48 which the defendant company paid to Autocar, taking an assignment of the conditional contract of sale. It is on the theory of subrogation that the defendant insurance company seeks recovery of that sum from Fields and Lake by its counterclaim.

Most of the cases involving the question of subrogation by an insurance company to the rights of a mortgagee against a mortgagor under a fire policy have arisen in connection with policies issued in conformity with the statutory provisions of section 168 of the Insurance Law. In such cases where there is a mortgagee clause and liability thereunder to the mortgagee on the part of the insurance company but no liability by it to the mortgagor or owner, the insurance company is entitled to be subrogated to the rights of the mortgagee against the mortgagor or owner. (Barile v. Wright, 256 N. Y. 1, 5; Hastings v. Westchester Fire Ins. Co., 73 N. Y. 141; Ulster County Sav. Institution v. Leake, 73 N. Y. 161, 166; Springfield F. & M. Ins. Co. v. Allen, 43 N. Y. 389; Foster v. Van Reed, 70 N. Y. 19, 26; Phœnix Ins. Co. v. Floyd, 19 Hun, 287.) It has been so held even in the absence of a clause similar to our statutory mortgagee clause. (First National Bank v. Springfield F. & M. Ins. Co., 104 Kan. 278.)

In the instant case while we are dealing with an automobile rather than property insured against fire under the " standard fire insurance policy of the State of New York ” (Ins. Law, § 168), the reason for permitting subrogation by the insurance company to the rights of the vendor as against the conditional vendee of the chattel remains the same. We have here a contract of insurance which binds the insurance company only in so far as Autocar is concerned. Neither Fields nor Lake at the time of the fire nor at the time of the assignment of the conditional sale contract was interested in the insurance contract as an assured. By the repossession and sale of the tractor there was established an ascertained valid assignable debt running from Fields and Lake to Autocar. A stranger to Fields and Lake could have purchased the account from Autocar and taken an assignment of it. Fields had become a stranger to the insurance contract when the policy of insurance was cancelled as to him. Lake had never occupied any position toward the insurance company other than that of a stranger.

Lake was not a party to the insurance contract and thus no contract providing for subrogation was made and none could have been made therein as to him. He had obligated himself to pay for an automobile. He had not paid. There was a debt owing by him to Autocar. That debt was assignable. When the insurance company paid Autocar for the peril insured against, Lake was in no position to claim that his debt had been paid for him, that he had been enriched to that amount, and his obligation to Autocar cancelled. It was to meet such a situation that equity created and applies the doctrine of subrogation or equitable assignment. (Pittsburgh-Westmoreland Coal Co. v. Kerr, 220 N. Y. 137; American Central Ins. Co. v. Weller, 106 Ore. 494.) In Pittsburgh-Westmoreland Coal Co. v. Kerr (supra), at page 143, we said (Chase, J.): “ The right of subrogation or of equitable assignment is not founded upon contract nor upon the absence of contract, but is founded upon the facts and circumstances of a particular case and upon principles of natural justice, and generally where it is equitable that a person furnishing money to pay a debt should be substituted for the creditor or in place of a creditor such person will be so substituted. (Crippen v. Chappel, 35 Kansas, 495.) ”

In American Central Ins. Co. v. Weller (supra), it was said: “ The doctrine of subrogation has long been an established branch of equity jurisprudence. It does not owe its origin to statute or custom but it is a creature of courts of equity, having for its basis the doing of complete and perfect justice between the parties without regard to form. It is a doctrine which will be applied or not according to the dictates of equity and good conscience, and consideration of public policy, and will be allowed in all cases where the equities of the case demand it. It rests upon the maxim that no one should be enriched by another’s loss and may be invoked wherever justice demands its application, in opposition to the technical rules of law.”

While the right of the insurance company to subrogation against Lake appears more clearly on the facts it does not differ on principle from its right to subrogation against Fields. That which Fields contracted to do was to purchase and pay for an automobile. He purchased but did not pay for it. He had no insurance when the automobile burned. There is no reason why the insurance money covering the ownership of Autocar should be used to pay for the interest of Fields therein which he did not see fit to keep insured.

The judgments of the Appellate Division should be reversed with costs and motions to dismiss the counter-claim denied.

Loughran, Finch, Rippey, JJ., concur with Desmond, J.; Conway, J., dissents in opinion in which Lehman, Ch. J., and Lewis, J., concur.

Judgments affirmed. (See 290 N. Y. 872.)


text:
    The People of the State of New York, Respondent, v. William Flynn, Appellant.
    Argued January 21, 1943;
    decided April 15, 1943.

      Rudolph Stand, John McKim Minton, Jr., and A. Haskell Schwartz for appellant.

      Frank S. Hogan, District Attorney (Stanley H. Fuld and David Riesman of counsel), for respondent.
   Loughran, J.

The defendant has been convicted of murder in the first degree.

On the night of January 21, 1940, he entered a bar and grill in the city of New York intending to commit robbery therein. Among the patrons who were in the place at the time were Claude Phelps and Oscar Ryan. Brandishing a revolver, the defendant said: “This is a stick-up. Get in the back.” Ryan was a police officer but was not wearing his uniform. He drew his service revolver which chanced to be unloaded. Thereupon the defendant fired a stray shot and at once backed out of the place. Phelps and officer Ryan followed after him. As they reached the street, he fired another shot from behind an automobile he had parked there. The death of Phelps was the instantaneous result, i

These undisputed facts eoncededly proved guilt of criminal homicide in some degree. With the consent of both sides, the court ruled that the killing was not felony murder. (Penal Law, § 1044, subd. 2.) This was in the absence of the jury. No mention of felony murder was made in -the summations of counsel or in the charge of the trial judge. He defined the crime of true murder in the first degree (Penal Law, § 1044, subd. 1) and then read to the jury from People v. Majone (91 N. Y. 211) as follows: “Under the statute there must be not only an intention to kill, but there must also be a deliberate and premeditated design to kill. Such design must precede the killing by some appreciable space of time. But the time need not be long. It must be sufficient for some reflection or consideration upon the matter, for, choice to kill or not to kill, and for the formation of a definite purpose to kill. The human mind acts with • celerity which it is sometimes impossible to measure, and whether a deliberate or premeditated design to Mil was formed must be determined from all the circumstances of the case.” The circumstances of the present case included, of course, the events that took place within the bar and grill before the fatal shot was- fired in the street outside. In fact, the testimony consists in far greater part of narrations of those antecedent occurrences in as much as officer Ryan was the only eyewitness to the homicide. The judge, however, gave no direction to the jury respecting the effect of that larger angle of the proof.

This course of the trial seems to have been the reason why the jury halted their deliberations to request further instruction. When they were brought back to the box, the fourth juror (after conferring with foreman) put their difficulty to the trial judge in this way: “ The question is: Does proof of premeditation on the part of the defendant to commit this robbery carry with it responsibility for any other crime committed during the commission of that robbery or attempted robbery?” The judge made the following answer: “ The defendant is on trial before you and before me solely for the crime of murder as I have earlier explained that crime and its different degrees to you. He is not on trial before you or before me for any other crime: ’ ’ Dissatisfied with that response, the juror inquired again: “But does the proof of the premeditation of one crime, one felony, carry with it the responsibility for any other crime?” For a further answer, the judge once more defined true murder in the first degree and repeated the words we have quoted from his charge.

At that stage, counsel for the defendant intervened to say: “ I except to your Honor’s declination, if it was a declination, to answer the juror categorically, and I ask your Honor to charge the jury that the intent involved in the underlying felony of robbery was not carried over, except in those cases, the so-called felony murders, where the crime is committed while the defendant is actually engaged in the commission of the felony.” The judge replied: “ Yes. I did not interpret the juror’s question as you interpreted it. I thought the jury was asking me to decide a question of fact, which I cannot do, because all questions of fact must be decided by the jury. ” Not content to let the matter rest there, counsel made his point again by this more direct request: “ I ask your Honor then to answer the juror’s question categorically as no.” This time the refusal of the judge was unmistakable. He said: “ No; I will answer it as I have answered it. They are the sole judges of all the questions of fact.” Nevertheless counsel persistently put in a final word: “Then I will ask your Honor [he said] to charge that this is not a felony murder case.” To that much the judge acceded by saying — “Yes, I shall so charge. This is a common law murder case as I have defined murder to you.”

We find ourselves unconvinced of the validity of the charge as a whole. The question addressed to the court by the fourth juror — whether proof of premeditation of the attempted robbery carried with it responsibility for any other crime — was purely a question of law which should have been answered unequivocally in the negative. The opposite answer of the judge — that this question was one of fact for decision by the jury exclusively — left open the way for an already envisaged finding of constructive malice; and it is not at all unlikely that the verdict of murder in its highest degree was arrived at through some such inadmissible means. The recondite last word to the jury — that this was a case of common law murder as previously defined and not a case of felony murder — is no sufficient guaranty of the probability of a different result. The jury’s words, we repeat, were these: “ Does proof of premeditation on the part of the defendant to commit this robbery carry with it responsibility for any other crime committed during the commission of that robbery or attempted robbery? ” No other crime was so committed. Had the jury been definitely instructed to that effect the verdict might well have been different. Consequently we feel called upon to order submission to another jury of the one short issue on which the life of this defendant depends. (See People v. Odell, 230 N. Y. 481, 488, 490.)

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

' Lehman, Ch. J., Finch, Rippey, Lewis, Conway and Desmond, JJ., concur.

Judgment of conviction reversed, etc.

       In the Majone case, supra, the conjunctive “and” was used (91 N. Y. at p. 212).


text:
    Schenectady Trust Company, as Trustee, Appellant, v. Nathaniel D. Emmons et al., Respondents, and Elizabeth B. Emmons et al., Infants, Defendants-Appellants, et al., Defendants.
    Argued February 24, 1943;
    decided April 15, 1943.

      Ellis J. Staley, Jr., and Ellis J. Staley for plaintiff, appellant.

      Edmund B. Bellinger, Guardian ad Litem for Elizabeth B. Emmons et al., infants, appellants.

      Walter A. Fullerton for respondent.
   Lewis, J.

We sustain the appellant’s challenge to the power of the Appellate Division to amend a final judgment by granting to counsel an extra allowance and certain disbursements payable out of a trust fund.

The action is in equity for an accounting by a trustee. Prior to the trial Nathaniel D. Emmons, a grandson of the settlor but not a beneficiary of the trust — to whom reference will be made as the grandson — was permitted to intervene and, when made a party defendant, raised the issue of the validity of the trust. The judgment entered at Special Term, which sustained the trust, was in character interlocutory except for the following provisions: “ * * * and it is further * * * Ordered, Adjudged and Decreed, that the defendant Nathaniel D. Emmons * * * has no interest in the trust estate herein or in this action and no standing to object to any of the provisions of the said trust indentures or to any of the amendments or modifications thereof; and it is further * * *

“ Ordered, Adjudged and Decreed, that the plaintiff is awarded taxable costs against the defendant, Nathaniel D. Emmons, * * * and all other costs and allowances to the plaintiff, defendants and guardian ad litem shall be reserved for the final judgment settling the plaintiff’s account of proceedings.”

On appeal by the grandson, the so-called interlocutory judgment entered at Special Term was affirmed by the Appellate Division and by this court. (261 App. Div. 154, affd. 286 N. Y. 626.) Thereafter a final judgment was éntered which made specific directions as to the settlement of the trustee’s account, “fixed the allowances to counsel and directed the discharge of the trustee under certain conditions. The final judgment also denied the grandson’s motion for an allowance and further “Ordered, Adjudged and Decreed, that any party to this action, except the Defendant, Nathaniel D. Emmons, may, upon notice to the other interested parties, apply hereafter to this Court for such other and further relief as from time to time may be necessary and which may in all respects be consistent with the provisions of this final judgment and that the Court retain jurisdiction of this action for such purpose.” (Emphasis supplied.)

The grandson appealed to the Appellate Division from so much of the final judgment as denied his application for an allowance “ * * * of at least $2000 plus $1058.40 disbursements payable out of the estate. ’ ’ The Appellate Division, upon its dismissal of the grandson’s appeal, stated in its opinion that the so-called interlocutory judgment was a final disposition of the rights of the appellant [the grandson], that his claim was dismissed, with costs against him, and that there was no reservation therein by the court of the right to later pass upon any application by him for an allowance, although there was such a reservation as to all other parties.” (263 App. Div. 542, 545.)

Then followed the application which has ultimately brought about the present appeal. The grandson moved at Special Term for an order amending both the interlocutory and final judgments “ * * * so as to permit Nathaniel D. Emmons to apply for an extra allowance herein and if said motion is granted, for the Court immediately to proceed and fix the amount of Nathaniel D. Emmons’ extra allowance * * The motion was denied at Special Term. Upon appeal by the grandson to the Appellate Division the order of Special Term was reversed, two justices dissenting, and thereupon the order was entered which is now before us on appeal by the trustee as of right. The order directs “ * * * that the order denying the motion to amend the interlocutory judgment and final ' judgment be reversed on the law and facts with twenty-five dollars costs, and the motion is granted with ten dollars costs. The final judgment and the interlocutory judgment are each amended so as to allow to Leary & Fullerton, attorneys for Nathaniel D. Emmons, an extra allowance of $2,000.00 and disbursements of $1,159.16, payable out of the trust fund.”

We agree with the statement made by the Appellate Division, when the present appellant first brought this matter before that court, that — * * * the so-called interlocutory judgment was a final disposition of the rights of the appellant, * * * there was no reservation therein by the court [Special Term] of the right to later pass upon any application by him for an allowance * * (263 App. Div. 542, 545.) We do not think however that either the circumstances to which the statement refers or the rules of law which authorize the amendment of a judgment, warrant the affirmance of the order now before us.

The amendment ordered by the Appellate Division was not made to correct a mere clerical error in the judgment affected or to supply an omission therefrom of relief to which the appellant was entitled as a matter of course. (Herpe v. Herpe, 225 N. Y. 323, 327.) The amendment involved a matter of substance which affected a trust fund in which each of the parties to this action has claimed, and some have been awarded, a substantial interest. “A provision withholding or awarding costs is a substantive part of a judgment in an action in equity and cannot be amended.” (Herpe v. Herpe, supra, p. 328.)

More than that, the Appellate Division was without power to modify in matter of substance the judgment which, as to the appellant Emmons, was final and was entered upon the remittitur of this court. (Matter of Friend v. Valentine, 287 N. Y. 526.)

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

Lehman, Ch. J., Loughran, Finch, Rippey, Conway and Desmond, JJ., concur.

Ordered accordingly.


author: Rippey, J.

text:
    In the Matter of Robert W. Thompson, Appellant, against Carroll L. Mealey et al., Constituting the State Tax Commission, Respondents.
    Argued February 24, 1943;
    decided April 15, 1943.

      C. O. Donahue and Margaret E. Scott for appellant.

      Nathaniel L. Goldstein, Attorney General (Henry S. Manley, Orrin G. Judd and Wendell P. Brown of counsel), for respondents.
   Rippey, J.

During the years 1936 and 1937, the appellant, a resident of the State of New York, was engaged in the business of repairing and waterproofing the exterior walls of industrial buildings in the States of New York, Pennsylvania, Delaware, New Jersey and Connecticut and the gross income from that business exceeded ten thousand dollars per year. Accordingly, he was required to file with the State Tax Commission a return for each of those years under article 16-A of the Tax Law (L. 1935, ch. 33, as amd.) upon which was to be computed and paid by him four per centum of- his entire net income from the unincorporated business within the State.

The appellant duly filed returns upon blanks furnished by the Tax Commission, evidently prepared in manner and form to enable the taxpayer to report and pay his tax in exact conformity to the statutory provision, in which he showed that gross income from his business for 1936 was $125,697.16 and for 1937, $175,17r.73, but that the gross income for unincorporated business tax purposes was $55,428.83 and $88,226.34 and net income $7,854.28 and $12,268.71 for those years respectively from New York State contracts or from contracts performed within the State of New York. Upon the returns, in answer to printed questions, he indicated that the business was carried on partly within and partly without the State and that he kept separate accounts for the business carried on within the State. The return contained “ Schedule G for allocation of the business conducted within and without the State if the books of the taxpayer failed to indicate the proportion of business income earned within the State and provided for computation of the tax on net income from within and without the State on the ‘ ‘ factor ’ ’ basis permissible under section 386-g of the Tax Law. On the return he was directed to attach an explanation of the method used to determine the New York income in the event that he maintained separate accounts and to ignore Schedule G- and report New York income only if separate accounts were maintained. If separate accounts were not maintained, he was required to report total income and apportion it on Schedule G to New York State. He made no allocation on Schedule G, but explained that each job cost was recorded separately. He paid the tax based upon the net income from business within New York State.

The Tax Commission thereupon made an additional assessment for each year, asserting that the amount of the tax should be fixed upon the entire net income from the unincorporated business wherever conducted and that no allocation was permissible since, as it claimed, the only business office of the taxpayer was located in New York State. Under protest, appellant paid the additional taxes assessed. He petitioned for a revision and readjustment of the taxes under section 374 of the Tax Law and for a refund of the taxes allegedly erroneously exacted. A hearing was held at which testimony was taken. The evidence produced at the hearing confirmed the contention which appellant made in his returns as to the amount of business done within and without the State respectively and that the books of the appellant were so kept as regularly to disclose the proportion of the business income which was earned within the State. It conclusively appeared that the returns correctly disclosed both the total income and the part apportioned to the State, and the basis upon which the apportionment was made. Without contradiction, it was shown that an office was maintained by appellant’s representative in Philadelphia as a separate entity at which bills were made out for jobs done outside of New York State, at which checks were received in payment on such contracts and from which payments were made. It was also shown that an office was maintained by another representative in Connecticut. The character and requirements of the business were such as not to require any extensive or elaborate office setup. The office ” in New York State was a room in appellant’s residence; the office ” in Philadelphia and Connecticut respectively was a room in the residence of the representative of the appellant who resided in that location. Nevertheless, the “ office ” in each location was the substantial and sufficient business headquarters of appellant and so proven and not here questioned. Notwithstanding all that, the Tax Commission, without making any express findings of fact, adhered to its former decision when it made the assessment and determined that appellant was required to pay the tax upon his entire net income from the unincorporated business wherever earned since he was a resident of and had his principal place of business in the State of New York. Furthermore, that the evidence established that appellant earned part of his income outside the State of New York is not here in dispute. The Tax Commission, in its return to appellant’s petition in this proceeding, admits, as the uncontradicted evidence showed, that a large portion of appellant’s work was done on buildings located outside the State of New York; that contracts for such business were solicited, generally negotiated and closed outside the State and that the cost of each job was kept separately on appellant’s books so that the amount of income derived therefrom was readily determinable.

Thus, upon this proceeding under article 78 of the Civil Practice Act in the nature of certiorari to review the determination of the Tax Commission there is no controversy as to the controlling facts. Questions of law only are presented as to whether the Legislature has imposed under article 16-A of the Tax Law an unincorporated business tax upon a resident of the State upon the net income from that business conducted both within and without the State and, if so, whether the statute imposing such tax is constitutional.

The legislative history, purpose and the express provisions of article 16-A of the Tax Law and Commission Regulation No. 41 indicate that the exaction of the unincorporated business tax is to be imposed only upon net income from business done within this State. The intent of the Legislature was to bring unincorporated business enterprises doing business within the State into a tax scheme by which taxes were imposed upon similar businesses conducted within the State by corporations (See Legislative Document No. 56, 1935, pp. 24, 25) and to make such unincorporated businesses share their just proportionate burden of taxation. The Attorney-General admits that the intent was to parallel the corporation franchise tax (Tax Law, art. 9-A). In the Tax Commission’s Manual 41, page 247, it is said: “ Where an unincorporated business is carried on both within and without New York State, only that part of the net income of such business carried on within the State is subject to tax ” (See also Tax Commission’s Manual 35-B). An analysis of the act itself indicates that the tax was to be imposed only upon net income of business done within the State. Section 386-a provides: “ A tax is hereby imposed upon the entire net income of any unincorporated business wholly or partly carried on within this state * * * which tax shall be equal to four per centum of the entire net income within this state of such unincorporated business * * Section 386-g provides that “ If an unincorporated business is carried on both within and without the state the net income therefrom shall be apportioned so as to allocate to the state on a fair and equitabiq basis a proportion of such income in accordance with approved methods of accounting.” Where the business is partly carried on within and partly without the State, two methods are set#up by statute (see § 386-g) for determining the amount of taxable net income. By the first method it is provided, ‘ ‘ If the books of the unincorporated business are so kept as regularly to disclose the proportion of the business income which is earned within the state, the return under this article shall disclose both the total income and the part apportioned to the state and the basis upon which such apportionment is made. If such basis is approved by the tax commission the return shall be accepted.” The second basis is also definitely laid down in the statute where it is said: If the books of the unincorporated business do not disclose the proportion of net income within the state, or if the basis of apportionment used by the unincorporated business is not approved by the tax commission, an amended return required therefor shall disclose the net income from business both within and without the state, and the allocation may be made by ascertaining the percentage which each of the factors hereinafter designated as the New York state factors ’ bears to the corresponding factor of the factors hereinafter designated as the ‘ total factors,’ by then adding said percentages together and dividing by three and by applying the percentage thus obtained to the net income from business both within and without the state in order to arrive at the net income allocable to this state.” Then follow definitions and descriptions of the factors to be considered (see also § 386-j).

The return and the evidence adduced at the hearing establish that the appellant kept his books so as regularly to disclose the proportion of the business income which was earned within the State and the return disclosed both the total income and the part apportioned to the State and the basis upon which such apportionment was made and that the business was conducted within and without the State. Any finding to the contrary by the Tax Commission was arbitrary and without substantial evidence to support it. Such income was to be computed in accordance with the method of accounting regularly employed in keeping the books of the taxpayer (§§ 386-j, 358). The appellant, therefore, complied fully with the requirements of the first basis upon which the allocation of net income was required to be made under the statute. It is true that the statute authorizes the Commission to reject the basis of apportionment made by the taxpayer, but it cannot, however, be held that the Legislature had any intent to confer upon the Tax Commission arbitrary authority to reject the allocation if the conditions precedent were complied with. It seems clear that the statute required the Commission under the conditions shown here, to accept the returns as filed. Had the field been left open for the Commission to find that the appellant had failed to overcome substantial evidence that he had not fully met all the conditions precedent to allocation on the first basis laid down by the statute, the Tax Commission then would have been required to permit him to file an amended return and to make the allocation in accordance with the second method that the statute provides.

The order of the Appellate Division should be reversed and the determination of the State Tax Commission annulled with costs in this court and in the Appellate Division.

Finch, Lewis and Conway, JJ., concur; Lehman, Ch. J., Loughran and Desmond, JJ., dissent upon the ground that the burden was upon the taxpayer tó show what part of his net income was derived from sources outside the State and that upon this record there was a failure to discharge such burden.

Ordered accordingly.


text:
    In the Matter of the Application of the City of New York, Respondent, for Appointment of the Treasurer of such City as Receiver of the Rents and Profits of Real Property Known as 801-815 East New York Avenue in the Borough of Brooklyn. Agnes V. Cannon, Intervener, Appellant.
    Argued February 23, 1943;
    decided April 15, 1943.

      Raphael H. Weissman and David Weiss for appellant.

      Thomas D. Thacher, Corporation Counsel (Leo Brown, Julius Isaacs and Meyer Scheps of counsel), for respondent.
   Loughran, J.

This case presents questions as to the constitutional validity of chapter 668 of the Laws of 1941 which added to the Administrative Code of the City of New York (L. 1937, ch. 929) a new section as follows:

§ 415(l)-53.3. Additional method to enforce payment of transfer of tax liens held by city.- — a. In addition to any other remedy or procedure provided by law, whenever the city is the owner or holder of a transfer of tax lien, the city, upon application ex parte to the supreme court, shall be entitled to the immediate appointment of the treasurer [of the city] as receiver of the rents, issues and profits of the property affected by such transfer of tax lien. The corporation counsel shall act as attorney and counsel for the treasurer and all property for which the treasurer acts as receiver shall be managed by the bureau of real estate of the board of estimate under the direction of such board. The treasurer, the corporation counsel and the bureau of real estate shall act without payment of any fees or other compensation with respect to such property.
b. The treasurer acting as receiver pursuant to this section shall serve without any additional bond and shall collect the accrued and accruing rents, issues and profits thereof and apply such rents, issues and profits in satisfaction of such unpaid ’taxes, assessments, water rents, penalties and interest and the costs and charges of the administration of the receivership. The treasurer, acting as receiver, shall also have the same powers as receivers who are appointed in actions to foreclose a mortgage on real property, and such other and further powers as may be ordered by the court.
c. When such unpaid taxes, assessments, water rents, penalties, interest, costs and charges are paid in full, the receiver shall be discharged after payment of the surplus moneys, if any, to the owner.
d. In any action or proceeding under this section, the amounts shown on the city collector’s books shall be prima facie evidence of the unpaid balance of such taxes, assessments, water rents, penalties and interest.
§ 2. This act shall take effect immediately and shall remain in effect for a period of five years.”

Pursuant to the jurisdiction so conferred, Special Term on March 12, 1942, granted an ex parte application of the treasurer of the city for his appointment as receiver of the rents, issues and profits of a tax delinquent property at 801-815 East New York Avenue in the Borough of Brooklyn. Asserting the unconstitutionality of the statute, the owner of the property moved the court to vacate its order of receivership and, upon denial of that motion, brought this direct appeal. (See Civ. Prac. Act, § 588, subd. 3, now § 588, subd. 4, as enacted by L. 1942, ch. 297.)

The provision authorizing appointment of a receiver without notice is the subject of attack. It is contended that due process is thereby denied. Though the answer is an old one, some restatement thereof may perhaps be opportune.

State taxation in its various forms must meet the procedural requirements of due process. (Stuart v. Palmer, 74 N. Y. 183.) But the necessity of notice and hearing is not' the same thing in all cases. When specific taxes are imposed upon persons, property or things (e. g., poll taxes and flat license taxes), the taxpayer can gain nothing through notice or hearing and none need' be afforded. (Hagar v. Reclamation District No. 108, 111 U. S. 701; People ex. rel. Scott v. Pitt, 169 N. Y. 521.) On the other hand — “A taxing act, which requires a valuation of property as part of the procedure, is unconstitutional unless it provides a grievance day, or an adequate opportunity to be heard and any tax levied under such a statute is void.” (People ex rel. Bridgeport Sav. Bank v. Feitner, 191 N. Y. 88, 100. Cf. Second Nat. Bank v. City of New York, 213 N. Y. 457.) Even so, a hearing before a judicial tribunal has never been deemed indispensable. (Matter of Trustees of N. Y. P. E. Public School, 31 N. Y. 574.) Grievances are usually adjudicated by tax officers and statutory indication of the time and place of their sessions is all in the way of notice that may be demanded in the name of due process. (Hagar v. Reclamation District No. 108, 111 U. S. 701; Pittsburgh C., C. & St. L. Ry. Co. v. Backus, 154 U. S. 421; McLaughlin v. Miller, 124 N. Y. 510; 2 Cooley on Constitutional Limitations [8th ed.] 1048. Cf. Matter of Common Council of City of Amsterdam, 126 N. Y. 158.) The sections of the municipal Charter under which taxes are levied upon real estate in the city of New York more than satisfy the taxpayer’s right to such notice and chance to he heard at some stage before the charge becomes an absolute lien upon his property. (New York City Charter [1938], ch. 7. See Palmer v. McMahon, 133 U. S. 660, 669.)

Once a taxpayer has been thus protected the due process clauses are not offended by summary statutory remedies for collection of ordinary taxes. (3 Cooley on Taxation [4th ed.] § 1113) “ The collection of such taxes, after they are assessed, is a purely administrative act. No constitutional right of the taxpayer is invaded when the assessment is collected by forcible process, any more than when a judgment is forcibly collected.” (Gray, Limitations of the Taxing Power, p. 581.) From time immemorial such short procedures were accepted by our ancestors as not less than essential to the existence of a strong government. (Matter of McMahon v. Palmer, 102 N. Y. 176, 189.) Modes of collection more stringent than the receivership process here in question have accordingly been sanctioned by this court. (Hersee v. Porter, 100 N. Y. 403; Prentice v. Weston, 111 N. Y. 460; Matter of Western Electric Co. v. Taylor, 276 N. Y. 309.)

Stress is laid by the appellant-taxpayer on the retroactive effect of the statute. As to this, we think it sufficient to observe that a new remedy for the collection of taxes may validly be made applicable to taxes theretofore delinquent. (See League v. Texas, 184 U. S. 156; Phillips v. Commissioner of Internal Revenue, 283 U. S. 589, 601; Matter of Trustees of N. Y. P. E. Public School, 31 N. Y. 574, 584, 585; City of New York v. Appleby, 219 N. Y. 76.)

In brief, the challenged provision of section 415(l)-53.3 of the Administrative Code constitutes due process of law under our Constitutions.

The order should be affirmed, with costs.

Lehman, Ch. J., Finch, Rippey, Lewis, Conway and Desmond, JJ., concur.

Order affirmed.


author: Desmond, J.

text:
    The People of the State of New York, Respondent, v. Will N. Clurman, Appellant.
    Argued March 3, 1943;
    decided April 15, 1943.

      Kenneth M. Spence and Stewart W. Bowers for appellant.

      Edward J. Neary, District Attorney (Philip Huntington of counsel), for respondent.
   Desmond, J.

Appellant owned the stock of Gepo Realty Corporation and managed its affairs. In 1939 that corporation made an agreement to sell to one Pierce a parcel of real property in Long Beach. When the appointed day, May 8,1939, came for delivering the deed, Pierce, the purchaser, asserted that there were certain defects in the title to the realty, or encumbrances thereon, and refused to pay the price. One of his objections concerned the alleged existence, uncancelled, of unpaid city tax liens on the property. Pierce’s refusal to close his purchase resulted in a lawsuit which was decided favorably to Pierce. (See Gepo Realty Corp. v. Pierce, 286 N. Y. 641.) On the trial of that suit there was offered in evidence an instrument described as a satisfaction piece or certificate of payment of that tax lien. This instrument bore the date of May 7, 1939 and on its face purported to show its execution and acknowledgment on that date by Gepo Realty Corporation, therein stated to be the assignee of the tax sale certificate. It was claimed by Pierce that the instrument had originally borne the date of May 9,1939 but that this appellant had altered those dates so as to make it appear that the certificate had been executed and acknowledged before May 8, 1939. (That alteration must have been made, if made at all, after the satisfaction piece had first been left with the City Treasurer, and then later removed from that officer’s files, altered, and returned to the files.) As a result of the disclosures, in respect to the certificate, appellant was indicted for forgery in the second degree. He was convicted thereof and now appeals to this court, by permission, from an affirmance in the Appellate Division, of that judgment of conviction.

The jury acquitted appellant as to one of the counts in the Indictment, and the trial court dismissed four others. The two counts on which he stands convicted accuse him of forging ” and “ uttering,” with intent to defraud, the certificate (above described) of payment of the tax lien. The indictment, setting out a copy of that paper, describes it as “ a certain instrument, the record of which is by the Law of this State made evidence.” That part of the indictment was drawn, apparently, with an eye to subdivision 2 of section 887 of the Penal Law, which makes' one guilty of forgery, second degree, who, with intent to defraud, “ forges a record of a * * * conveyance, or instrument of any kind, the record of which is by the law of this state made evidence * * *.” Of course, the above-noted descriptions of the alleged crimes in this indictment do not tally with the statutory description just quoted, since .the indictment speaks of the forgery of an instrument, the record of which is made evidence by law, while the statute describes the forgery of a record of an instrument, the record of which is made evidence, etc. This variance, if there were nothing more serious in the case, might be excused as inadvertent, the result of an accidental elision. But there is difficulty more grave. The trouble is that the satisfaction piece said to have been falsified as to date, is neither a record ” made evidence by law, nor is is an “ instrument * * * the record of which is by the law of this State miade evidence.” The satisfaction piece was never recorded, nor was it entitled by statute to _ be recorded, nor is there any statute making the instrument itself, or the “ record ” thereof, admissible in evidence. Record ” as here used, has a definite and time-honored meaning. (See Hill v. Crockford, 24 N. Y. 128.) More than mere filing is required. A record implies an actual transcription by the official.” (People ex rel. Simons v. Dowling, 84 Misc. 201, 203, affd. 164 App. Div. 911.) A satisfaction piece is not a ‘ record ’ ’; until actually spread upon the records, it is not a “ record,” even though its filing be noted on some docket. (Lownds v. Remsen, 7 Wend. 35.) The instrument here under scrutiny, a certificate of the payment of a tax lien theretofore sold to an investor, seems to be of a kind unknown to the statutes. The Charter of the City of Long Beach (L. 1922, ch. 635, as amd. L. 1933, ch. 594, art. 6, § 116) requires the City Treasurer, upon the surrender of the certificate of sale by the owner thereof ” to cancel and discharge the tax * * * upon the record.” The Charter does not mention, or seem to contemplate, the filing or recording of a satisfaction piece. The practice was to do what was ultimately done in this instance, that is, surrender the tax sale certificate itself to the treasurer. In this instance the City Treasurer seems first to have received the satisfaction piece. Later there was left with him the tax sale certificate itself. The satisfaction piece was neither recorded nor entitled to recording, and never became a record ” of the city. It was merely left with the City Treasurer who accepted it, we suppose, as some evidence of the fact of payment, which fact was at some later time established in the manner prescribed by the statute, that is, by the surrender of the tax sale certificate itself. The trial court charged the jury that the instrument we are here discussing was, as a matter of law, such a “ record ” as is described in subdivision 2 of section 887 of the Penal Law. That instruction, we conclude, was error. Again, the court charged that the People “ must prove beyond a reasonable doubt that the paper was forged after it became a public record.” There is no showing at all that it did, or could, become a public record.

It is no answer to all this to assert that article 84 of the Penal Law dubs so many different acts “ forgeries ” that it covers every kind of false instrument, the falftity of which has the effect of defrauding those who act upon it as genuine, or that the" essential elements of the crime of forgery are the same under the statutes as at common law. It is still our duty to give effect to the declaration of section 22 of the Penal Law that in this State no act or omission shall be deemed criminal or punishable except as prescribed by statute. Neither this indictment nor this conviction can be upheld unless facts are set forth showing that a statute has been violated.” (People v. Knapp, 206 N. Y. 373, 380.) Appellant could be indicted only for a crime described in the Penal Law, and he could be convicted only of the crime with which he was charged (People v. Miles, 289 N. Y. 360).

The judgments should be reversed and the indictment dismissed.

Lehman, Ch. J., Loughran, Finch, Rippey, Lewis and Conway, JJ., concur.

Judgments reversed, etc.


author: Conway, J.

text:
    In the Matter of Robert J. Cary et al., Respondents, against The Council of the City of Binghamton, Appellants.
    Argued March 10, 1943;
    decided April 15, 1943.

      Hugh J. Heffern, Corporation Counsel, (Thomas W. Ryan of counsel), for appellant.

      Charles P. O’Brien and Herman F. Nehlsen for respondents.
   Conway, J.

This is a proceeding under article 78 of the Civil Practice Act for an order directing the members of the Council of the City of Binghamton to desist and refrain from taking any action upon two proposed ordinances introduced in the Council.

The petitioners Cary and Page are municipal civil service commissioners of the city appointed in the years 1940 and 1941 and who have served as such since their appointment. The city of Binghamton in 1937 duly adopted a simplified form of government defined as Plan F under the provisions of the Optional City Government Law of the state of New York and is still operating thereunder.

In March of 1942 the Mayor of the city requested the Council in writing to take such action as it deemed advisable under section 47 of the Optional City Government Law relating to the official actions of the petitioners. Thereupon there were introduced in the Council the two proposed ordinances to which reference has been made. They purported to remove petitioners by reason of certain specified actions and conduct by them. After the introduction and reading of the proposed ordinances they were referrred to the Committee of the Whole and the petitioners were given an opportunity to appear on a date set, subsequent to service upon them of a copy of the proposed ordinances, in order that they might make such explanation as they desired “ of reasons assigned for removal.”

Thereupon petitioners instituted this proceeding.

The question which we must determine is whether the Council has the power to remove the petitioners under any circumstances. That depends upon a reading of Optional City Government Law, section 47 (L. 1914, ch. 444, as repealed in part by L. 1939, ch. 765). That section reads as follows: § 47. Civil service commissioners. Subject to the provisions of the civil service law, the council under plans A, B and C, and the mayor under plans D, E and F, shall appoint three persons as civil service commissioners to serve for two, four and six years respectively. Each alternate year thereafter there shall be appointed one person as the successor of the commissioner whose term expires, to serve for six years. • Any vacancy shall be filled for the unexpired ■ term in the same manner as an original appointment. Not more than two members of the commission shall be adherents of the same political party, and no member shall hold any other public office to which a salary is attached. A commissioner may be removed during his term of office by the unanimous vote of the council, and upon stating in writing the reasons for removal, and after allowing him opportunity of making an explanation.” The first sentence is the only one which refers to the various plans of govermnent under the act. The other sentences clearly apply to all plans of government thereunder. This is confirmed by article III of the act, in which section 47 is found. It is entitled: “ General Provisions Applicable to Each Method of Government.” Finally, section 35, the first section of article III, reads as follows: ‘ ‘ Unless otherwise especially provided, the sections contained in this article shall apply to the plans of government defined in this act as plan A, B, C, D, E, F and G.” It is the contention of petitioners, however, that the last sentence of section 47, granting power to the Council to remove, has application only to a Council operating under plans A, B or C. It seems to us that to so decide would be to disregard the unambiguous wording of the statute.

A complete answer to the construction advocated by petitioners is found in the wording of section 11 of the Civil Service Law as it existed when the Optional City Government Law was enacted in 1914. At that time section 11 provided only two methods of removal of a municipal Civil Service Commissioner, first, removal by the Mayor, second, removal by the State Civil Service Commission. It was then that the Legislature provided in section 47 of the Optional City Government Law that the Council might remove a Commissioner. Obviously, if that entire section, section 47, was subject to the Civil Service Law as petitioners claim, the Council never obtained the power at any time to remove a Commissioner and the Legislature in 1914 nullified a direct provision of section 47 at the moment of its enactment by making it subject to an existing provision of the Civil Service Law. We cannot say that the Legislature had any intention of accomplishing such a curious result. Bather must we attempt to give effect to each legislative provision in each legislative act. That may be done by limiting the words: Subject to the provisions of the civil service law ” to the first sentence of section 47. In 1923 (long after the enactment of section 47) section 11 of the Civil Service Law was amended so as to provide that the “ Mayor ” “ or other duly authorized appointing authority ” might appoint or remove the Civil Service Commissioners. (L. 1923, ch. 177.) Before that amendment the Mayor had had the power of removal under the Civil Service Law and the Council had had the power of removal under the Optional City Government Law. There is nothing to indicate that the Legislature intended to change that situation by the amendment of 1923. The words: Subject to the provisions of the civil service law ” in section 47 still applied only to the appointing power just as they did in 1914 when the Optional City Government Law was enacted.

In this view, a reading of the Civil Service Law and the Optional City Government Law together produces no disharmony. Under section 11, subdivision 6, of the Civil Service Law: (1) the Mayor or other appointing authority may remove any Municipal Civil Service Commissioner for cause and after a public hearing, and (2) the State Civil Service Commission may by unanimous vote of the three Commissioners, with the written approval of the Governor, remove any Municipal Civil Service Commissioner for certain enumerated reasons after compliance with certain procedural requirements. Both those methods of removal are continued by Optional City Government Law section 47 and a third method is added — the removal by the unanimous vote of the Council after due opportunity afforded for explanation. There is no conflict. It may be that the Legislature sought by these varied provisions more completely to protect the civil service. Whatever the reason, the words are clear and need no construction by us. Any change is for the Legislature.

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

Lehman, Ch. J., Loughran, Finch, Rippey, Lewis and Desmond, JJ., concur.

Ordered accordingly.