author: Rippey, J. Lewis, J.

text:
    In the Matter of John A. Lyons, as Commissioner of Correction of the State of New York, Respondent, against Jonah J. Goldstein, a Judge of the Court of General Sessions of the County of New York, Appellant. Joseph Bendix, Intervener, Appellant.
    Argued December 1, 1942;
    decided March 4, 1943.

      Frank S. Hogan, District Attorney (Stanley H. Fuld of counsel), for Jonah J. Goldstein, a Judge of the Court of General Sessions, New York County, appellant.

      Arthur H. Schwartz and Herbert J. Jacoby for Joseph Bendix, intervener, appellant.

      John J. Bennett, Jr., Attorney-General (Bernard L. Aiderman and Patrick H. Clune of counsel), for respondent.
   Rippey, J.

Joseph Bendix, the intervener in this proceeding, pleaded guilty on April 17, 1936, in the Court of General Sessions for New York County, to a charge of burglary in the third degree. On April 23, 1936, judgment was entered upon the basis of that plea and he was sentenced as a fourth felony offender to a term of imprisonment of not less than fifteen years nor more than his natural life (Penal Law, § 1942). The plea was received, judgment entered and sentence pronounced by a court of competent jurisdiction and the sentence was mandatory. On April 27, 1936, he was in due course received in a State prison and commenced the service of his sentence.

On July 25, 1941, Bendix made an application to the Court of General Sessions to open the judgment of conviction, to withdraw his plea of guilty and to enter a plea of not guilty. He based his application on the ground that his original plea of guilty had been induced by fraud and misrepresentation on the part of a prosecuting official. Prior to the hearing on the merits of his application, the petitioner, the Commissioner of Correction of the State of New York, applied to the Supreme Court for an order of prohibition restraining and enjoining the Honorable J onah J. Goldstein, a judge of General Sessions Court for the County of New York before whom the motion of the intervener was pending, from assuming jurisdiction of or taking any affirmative steps in connection with the application. Special Term held that the Court of General Sessions was without power to entertain the application and issued an order prohibiting Judge Goldstein from entertaining jurisdiction in the proceeding. The Appellate Division unanimously affirmed the order made at Special Term.

“The writ of prohibition is an extraordinary remedy for unusual cases, resorted to, not to correct errors, but in aid of substantial justice and to forbid the exercise of unauthorized power ” (People ex rel. Childs v. Extraordinary Trial Term, 228 N. Y. 463, 468). We are not concerned with the merits of the intervener’s application. The only question which we consider or upon which we pass is whether the tribunal before which the application was made has power, under any circumstances, to hear and determine an application to reopen a judgment of conviction which is based upon fraud and misrepresentation after the judgment has been entered and sentence has been imposed and the defendant has commenced his term of imprisonment. Effort is made to sustain the order upon the grounds, first, that the Legislature has by statute excluded any court from jurisdiction to reopen a judgment of conviction after sentence has been pronounced and the defendant has commenced the service of the term of imprisonment imposed; second, that relief is provided by way of an application for executive clemency, and third, that the question is not an open one in this court. We think that the order may not be sustained upon any of these grounds.,

Eeliance is placed upon the provisions of section 337 of the Code of Criminal Procedure and section 2188 of the Penal Law. In determining whether the Legislature has, by those statutes, excluded the court from jurisdiction to entertain a proceeding to set aside a judgment of conviction upon the application of the person who is restrained of his liberty under such a judgment where he asserts that the judgment is null and void because his plea of guilty to the crime charged, which forms the basis upon which the judgment was entered, was induced by trickery, deceit, coercion or fraud and misrepresentation, the statutes must be construed in such a way, if possible, as to avoid their being declared unconstitutional (Matter of Vanderbilt, 281 N. Y. 297, 313). We must then necessarily consider, in that connection, whether the effect of the. statutes, if construed in manner to preclude challenge of a judgment of conviction'for nullity, would be a denial of due process (Valz v. Sheepshead Bay Bungalow Corp., 249 N. Y. 122, 132).

Section 337 of the Code of Criminal Procedure provides that “ The court may in its discretion, at any time before judgment upon a plea of guilty, permit it to be withdrawn, and a plea of not guilty substituted.” A simple reading of the section indicates that it applies by its express terms to a single situation that arises prior to the entry of judgment. There is nothing in its terms to show that it was intended to apply to a case such as the instant case. The section is permissive, not subject to the operation of the maxim, expressio unius est exclusio alterius. It merely authorizes the court, in its discretion, at any time before judgment upon a plea of guilty, to permit it to be withdrawn for any cause or for no cause at all and a plea of not guilty substituted. It does not purport to exclude jurisdiction of a competent tribunal to correct mistakes in its own judgments, or to investigate and, in a proper case and upon a proper showing, to set them aside at any time if they are based upon trickery, deceit, coercion or fraud and misrepresentation. To leave no doubt that section 337 was intended to apply only to the situation therein described, it is provided in section 962 of the Code that provisions of the Code apply only to proceedings in criminal cases therein provided for.

Section 2188 of the Penal Law provides, as stated in its title, for “Suspending sentence; suspending execution of judgment; probation.” It provides that “ The court, judge, justice or magistrate authorized to impose sentence upon conviction may, except as otherwise provided in this section, (1) suspend sentence, or (2) may impose sentence and suspend the execution of the judgment. In either such case he may place the defendant on probation.” However, it provides that “ Neither sentence, nor the execution thereof, shall be suspended, nor the defendant placed on probation (a) if convicted of a crime punishable by death or life imprisonment, or (b) if the defendant convicted is a fourth offender under section nineteen hundred forty-two, or (c) if the person is convicted of a felony committed while armed with a weapon as provided in section nineteen hundred forty-four.” Then follows the procedure that the court must take prior to placing a prisoner on probation or suspending execution of the judgment and authority is conferred on the court to extend the period of probation from time to time within specified limits and to revoke an order suspending sentence or its execution and impose such sentence or make such commitment as might have been made at the time of conviction. Then follows, as part of the section, this provision: “Provided, however, that the imprisonment directed by the judgment, shall not be suspended or interrupted after such imprisonment shall have commenced.” The last quoted portion of the section cannot be lifted out of its context and applied to cases and circumstances to which it obviously does not and cannot relate. The section is limited in scope to the circumstances under which the court may or may not act as the Legislature has therein provided. The court’s power to suspend sentence or the imposition of sentence, or to release an offender on probation, is the only limitation sought to be placed upon the power or jurisdiction of the court in criminal cases by that section.

If the order of Special Term were to be sustained upon a construction of the foregoing statutes in manner contrary to what we have above found to be their proper construction, the statutes would be repugnant to the due process clauses of the Constitutions of the United States and of the State of New York which can be satisfied, at least, only when a person may be granted a hearing upon the merits before a competent tribunal where he may appear and assert and protect his rights (Westervelt v. Gregg, 12 N. Y. 202, 209; Stuart v. Palmer, 74 N. Y. 183, 191; Matter of Doyle, 16 R. I. 537, 538; Mooney v. Holohan, 294 U. S. 103; Walker v. Johnston, 312 U. S. 275; Waley v. Johnston, 316 U. S. 101, 104, 105). Although the Constitutions contain no description of those processes which it was intended to allow or forbid, it was not left to legislative power to enact any process which might be devised (Murray v. Hoboken Land & Improvement Co., 18 How. 272). It must, consequently, be found that the Legislature has not attempted to legislate on the right of a prisoner to attack a judgment of conviction for fraud and misrepresentation and to forbid his appearing in a competent tribunal and asserting and protecting his rights upon the merits.

The inherent power of a court to set aside its judgment which was procured by fraud and misrepresentation cannot be doubted (Furman v. Furman, 153 N. Y. 309; Matter of Holden, 271 N. Y. 212). No logical distinction can be made between such power over judgments in civil cases and such power over judgments in criminal cases. There is nothing unique about a judgment or its execution in criminal cases which excepts it from the rules applicable to judgments generally and the inherent powers of the courts with reference to them. The power was exercised in criminal cases at common law through the writ of error coram nobis (Robinson v. Johnston, 118 F. 2d 998; United States v. Mayer, 235 U. S. 55, 67). If the judgment may be reviewed and set aside on the ground that it was procured by fraud, no reason presents itself why the court may not then permit the withdrawal of a plea of guilty because the record is then the same as if no judgment had ever been rendered. Indeed, it is settled that to deny a person an opportunity to be heard on proof that he was defrauded or coerced into pleading guilty to a crime would impair a constitutional right (Walker v. Johnston, supra; Waley v. Johnston, supra). It would be an extraordinary reversal of all precedent to deny to a competent tribunal power over its own judgments in either civil or criminal cases.

No statute has been called to our attention, nor have we been able to find any, where a competent court has been denied jurisdiction to reopen its judgment where the same was based upon trickery, deceit, coercion or fraud and misrepresentation in the procurement of the plea upon which the judgment was based. The District Attorney in his brief, in support of the jurisdiction of the Court of General Sessions, has a comprehensive digest and discussion of decisions in other states having penal and criminal procedural statutes similar to our own. We need not pause to review them here. It is sufficient to say that the overwhelming weight of authority upholds his contention that inherent jurisdiction exists in the court to entertain an application such as the intervener here seeks to present.

This court has not heretofore passed upon a situation such as is presented here and the cases relied upon by respondent are not in point. In People ex rel. Hirschberg v. Orange County Court (271 N. Y. 151, 155) it was held that a court has jurisdiction to entertain a motion to correct its records where it appears that a clerical error existed in recording a plea in a criminal case although judgment had been entered and the defendant had commenced service of his sentence. It was further said in the opinion in that case, “ The Code of Criminal Procedure establishes the practice in all criminal cases and the authority for the orders and judgments of the courts,” but any such statement must be read in connection with the question to be decided and we held, in spite of the apparent breadth and scope of the statement, that there was nothing in the Code to prohibit a court from exercising its inherent power to correct mistakes and errors in its judgments. In Matter of Dodd v. Martin (248 N. Y. 394) this court held in a second offender case that section 2188 of the Penal Law applied and, after a heairng, it appeared that an effort was being made to avoid the effect of the Baumes Laws. In People v. Daiboch (265 N. Y. 125), another second offender case, a hearing %vas had and upon the merits it was held that the defendant was not entitled to the relief which he sought. There it was suggested obiter by the court that when it appeared that a defendant in a criminal case was tricked or deceived into pleading guilty, the courts might find a way to reopen the judgment and permit the alleged offender to change his plea. In Matter of Moore v. Thorn (245 App. Div. 180; affd., 270 N. Y. 502), another second offender case, the court held a hearing and upon the merits it was found that section 2188 of the Penal Law was applicable. In People v. Bartindale (259 App. Div. 841; affd., 284 N. Y. 681) the defendant moved to change his plea after imprisonment had commenced under a judgment upon a plea of guilty on the ground that he had been induced to enter the plea on the District Attorney’s promise that he would get a suspended sentence. A hearing upon the merits was had in that case and the motion was denied at Special Term and we held that, in any event, the denial of the motion was discretionary.

The record here discloses that Bendix or someone in his behalf has made a number of applications during the past four years for executive clemency. On two occasions the District Attorney of the county of New York joined in the application and one of the applications was initiated by the judge who pronounced sentence. In spite of all that, all applications have been denied. The inadequacy of such a remedy, if it were a remedy, is clearly demonstrated by the record in this case. Nevertheless, executive clemency presents no such relief as Bendix desires and as he is entitled to receive, if he can, upon a hearing, establish grounds for the invalidity and nullity of the judgment of conviction. Executive clemency does not eliminate the fact of conviction; it merely results in ending further punishment (People ex rel. Prisament v. Brophy, 287 N. Y. 132). In Roberts v. State (160 N. Y. 217), when discussing the nature of a pardon, this court said at pages 221, 222: “ * * * A pardon proceeds not upon the theory of innocence, but implies guilt. If there was no guilt, theoretically at least, there would be no basis for pardon. It is granted not as a matter of right, but of grace. In the language of auother: A party is acquitted on the ground of innocence; he is pardoned through favor.’ * * * If the judgment was erroneous, the remedy was by appeal or by application to set it aside, and not by pardon. That question was for the judicial branch of the state government to determine, and not for the legislative or executive department.”

The orders appealed from should be reversed and the proceeding dismissed.

Lewis, J.

(dissenting). On April 17, 1936, the present intervener-appellant appeared in the Court of General Sessions of New York County where he entered a plea of guilty to a charge of burglary in the third degree. Thereupon, as a fourth offender, he received the mandatory sentence of fifteen years to life in a State prison. On July 25, 1941, when he had served more than five years of that sentence he applied at the Court of General Sessions for leave to withdraw his plea made in 1936 of guilty to the charge then made against him and for permission to substitute a plea of not guilty. The ground of his application in 1941 was his assertion that his plea of guilty in 1936 had been induced by fraud and misrepresentation in that he would not have pleaded guilty in 1936 had he not been ‘ ‘ promised executive clemency ” by an Assistant District Attorney whom he named. He has asserted further that — “ If I had not received such a promise, I would undoubtedly have taken my chances upon a trial of the case and would have awaited a judgment of a jury as to whether my conduct was criminal.”

In the present proceeding, which is in the nature of prohibition, we are not concerned with the merits of the appellant’s application to the Court of General Sessions. Our inquiry involves the single question whether the appellant’s application in 1941 to the Court of General Sessions calls for the exercise by that court of unauthorized power. (People ex rel. Childs v. Extraordinary Trial Term, 228 N. Y. 463, 468.) Was it within the power of the Court of General Sessions to entertain in 1941 the appellant’s application for permission to change his plea of guilty after he had commenced the service of a term of imprisonment which was concededly the judgment of a court which acted within its jurisdiction?

The decision about to be made, as I view it, overrules, without a statement of adequate reason, the decision made by this Court in Matter of Dodd v. Martin (248 N. Y. 394). (See also, People v. Daiboch, 265 N. Y. 125, 131; People ex rel. Woodin v. Ottaway, 247 N. Y. 493, 496; People ex rel. Paris v. Hunt, 234 N. Y. 558; People v. Vitale, 211 App. Div. 814.) No serious effort is made to distinguish Matter of Dodd v. Martin, supra, from the case now before us. Indeed, such an effort, in my opinion, would be unavailing because it will be found, by an examination of the petition in the Martin case, that the question now before us was then presented for decision, at which time the opinion (per Pound, J.) stated (p. 396) “ After judgment on a plea of guilty and the beginning of the term of imprisonment the court was without jurisdiction to permit the defendant to change his plea. ” As authority for that ruling this court cited Code of Criminal Procedure, section 337 and Penal Law, section 2188.

In the past this court has found it necessary to point to the long recognized fact that — The Code of Criminal Procedure establishes the practice in all criminal cases and the authority for the orders and judgments of the courts.” (People ex rel. Hirschberg v. Orange County Court, 271 N. Y. 151, 155.) In making that statement the court cited its prior decision in People v. Glen (173 N. Y. 395) where it was said (p. 400) that the provisions of the Code of Criminal Procedure “ embody the commands of the law-maldng power in matters wherein its fiat is supreme and final. ’ ’ By the decision about to be made I think the Court is entering a field for law-making reserved exclusively for the Legislature — a field ‘ ‘ wherein its fiat is supreme and final.”

In the exercise of its exclusive function to establish the practice in all criminal cases and the authority for the orders and judgments of the courts, the Legislature has dealt with the problem now before us and has expressly provided when and in what circumstances a defendant may withdraw a plea of guilty" and substitute a plea of not guilty. Section 337 of the Code of Criminal Procedure provides: “ Plea may be withdrawn by permission of the court. The court may in its discretion, at any time before judgment upon a plea of guilty, permit it to be withdrawn, and a plea of not guilty substituted.” (Emphasis mine.)

I interpret the statute last quoted above — which formed the basis of the rule in the Martin case, (supra) —as a clear statement by the Legislature of its intent to empower a court, in its discretion, to permit a defendant to withdraw a plea of guilty before the execution of the sentence begins, but not otherwise. That the Legislature, in the interest of the proper administration of criminal law in this State, intended thus to limit the power of the courts where the execution of a sentence has commenced, is made clear when we examine section 470-a of the Code of Criminal Procedure and section 2188 of the Penal Law. The provisions of those statutes relate themselves both to procedure to be followed and the power of the courts when matters are dealt with which involve the suspension of sentence and of the execution of judgment. Section 2188 id. also relates to probation. I find it significant to our present inquiry that at the end of each of those statutes, and after prescribing certain procedure and the extent to which the power of courts may be exercised, the following express limitation upon such power is stated in identical language for each statute: “ Provided, however, that the imprisonment directed by the judgment, shall not be suspended or interrupted after such imprisonment shall have commenced. ’ ’

The jurisdictional limitations made mandatory by the sentence last quoted above demonstrate, in my opinion, the Legislature’s purpose consistently to maintain in this State the mandate to be found in section 337 of the Code of Criminal Procedure, which withholds from our courts the power which the appellant now invokes, vis., to permit withdrawal of a plea of guilty after imprisonment has commenced. That a like rule limits the power of Federal courts is made to appear from the opinion by Mr. Chief Justice Taft in United States v. Murray (275 U. S. 347), where the Supreme Court of the United States, in considering the power of a district court to grant probation, states (p. •358) “ The beginning of the service of the sentence in a criminal case ends the power of the court even in the same term to change it.” (Citing Matter of Lange, 18 Wall. 163. See, also. United States v. Mayer, 235 U. S. 55, 70.) Such seems to be the rule in England. (Regina v. Sell [1840] 9 Car. & P. 346; 173 Eng. Reprint, 863; The King v. Plummer [1902] 2 K. B. 339.)

It may be that the application of the statute (Code Crim. Pro., § 337) which I believe should control our decision, will work hardship in this instance. But we have said (per Lehman, Ch. J.) that • — ■ In practice, inflexible rules of procedure may deny to a person wrongfully convicted any further access to the court. Then his only means of redress is appeal to the executive.” (People ex rel. Prisament v. Brophy, 287 N. Y. 132, 139.)

For the reasons stated I dissent and vote for affirmance.

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

Orders reversed, etc.


source: Caselaw Access Project

author: Desmond, J.

license: Public Domain

text:
    In the Matter of the Accounting of Helen G. Rhinelander et al., as Executors of Philip Rhinelander, Deceased. Alice Jones, Appellant; Adelaide R. Thomas et al., Respondents.
    Argued January 6, 1943;
    decided March 4, 1943.

      Robert P. Smith, Ione P. Barrett and Randall I. Cohen for appellant.

      Stephen J. McTague for Helen G. Rhinelander et al., as executors, respondents.

      Hyman R. Friedman for Adelaide R. Thomas, respondent.

      Frederick E. Weinberg for George Ungar, special guardian for Phyllis M. Rhinelander et al., Infants, respondents.
   Desmond, J.

On an executors’ accounting in this estate, there came up for determination the claim of appellant Alice Jones, which claim had been allowed by the executors, but was objected to by certain legatees, who are respondents here. Alice Jones had been from 1924 to 1929 the wife of Leonard Rhinelander, son of the deceased. Leonard Rhinelander died in 1936. The claim here litigated bases itself on the terms of an agreement made in 1930 in Nevada between Alice Jones, Leonard Rhinelander and the testator. The agreement, among other things, required Leonard Rhinelander to pay his former wife, claimant-appellant Alice Jones, $3,600 a year, for her support, as long as she should live. Subjoined to that writing was a promise signed by Philip Rhinelander, father of Leonard, in these words: “I hereby guarantee each and every of the payments required to be made in the above agreement by the party of the first part [his son Leonard] to the party of the second part [claimant Alice Jones], and this obligation shall be binding upon my heirs, executors and administrators.” The objections by the legatees to the allowance of the claim of Alice Jones were on two grounds: first, that the terms of this guaranty agreement did not carry its obligation beyond the guarantor’s death and, second, that the whole agreement was illegal because of its connection with a Nevada divorce proceeding. There was a trial of these objections before the Surrogate, and he dismissed the objections and allowed the claim, ruling against the objectants as to both the above-stated grounds. In the Appellate Division there was a unanimous modification and a direction for rejection of the claim “ as illegal and invalid.” The rationale of the Appellate Division’s decision was stated thus in that court’s opinion: “When the facts and circumstances are examined and the cloak of formal words and phrases is removed, it clearly appears that the agreement was a contrivance to make that appear to be legal which had an unlawful purpose, i. to develop an ineffective Nevada decree of divorce into one which bore the badge of general full faith and credit.” (264 App. Div. 607, 609.) We proceed to an examination of this question of illegality, taking into account the terms of the written agreements, the relationships of the parties and the important circumstances revealed by the testimony before the Surrogate.

The agreements so held by the Appellate Division to be tainted and corrupt were made in 1930, but an examination of their full history takes us six years farther back. Leonard Bhinelander, son of the testator, and Alice J ones were married in October, 1924. They separated after one month and never lived together again. Instead the husband, in November, 1924, sued for an annulment. His suit was defeated. In 1929 the wife sued her husband’s father (testator here) for alienation of affections, accusing the father of wrongfully causing the estrangement. Later in the same year the husband betook himself to Nevada where he brought a suit for divorce on the ground of cruelty. Service of the process in that suit, on the wife who remained in New York, was by publication and mailing, only. The decree of divorce which the Nevada court thereupon awarded to the husband in December, 1929, contained no provision whatever for the wife’s support and maintenance, nor had any such provision been made, by the husband elsewhere or in any manner, for such support. Two months later (February, 1930), the wife, to enforce her claim of a right to be maintained at the expense of her husband, and notwithstanding the outstanding Nevada decree dissolving the union, sued Leonard Bhinelander in New York for a separation. Soon afterwards and while these two New York suits were pending against the father and the son, respectively, conversations began between attorneys representing the three parties to those suits. These conversations produced, in time, the agreement which the Appellate Division has held to be illegal. We think it important here to emphasize these unquestioned facts: That when these 1930 negotiations began the parties had been separated for about six years, that Leonard Bhinelander was then living in Nevada and had been awarded a judgment of divorce by the courts of that State, that in the getting of that divorce there had been no concert or collusion between husband and wife, that the wife was not receiving any support from the husband, and that the wife was asserting claims against her husband (for alimony) and his father (for damages for alienation of affections) in the New York courts.

The agreements now before us were drawn in New York City by a lawyer who represented both the Messrs. Rhine-lander. They were signed first by claimant, then by Mr. Rhine-lander, Sr., both these signings taking place in New York City; Leonard Rhinelander then signed the papers in Nevada. Delivery of the agreements, however, was not made until after claimant, through her attorney, had made a formal appearance and intervention in the Nevada suit in which Leonard Rhine-lander had obtained his divorce decree, and after claimant had petitioned for, and been awarded, a modification of that decree incorporating therein the provisions of the agreements, already signed but not delivered, for her future support and maintenance.

The provisions of the agreements may be summarized thus: First it is recited that the parties have separated, that they desire to settle forever their property rights and that claimant wishes to apply to the Nevada courts to reopen the divorce decree either in order to have it modified to include a support provision, or in order to put in a defense in the action. Then we find a provision for the payment to her by her former husband of a sum for counsel fees, and $3,600 ($3,800 under certain circumstances) a year for life for her support, these payments to be made on and after she should do any one of these three things: reopen the divorce decree and successfully defend the suit, or reopen the decree and obtain a modification thereof by way of a provision for her support, or petition for, but be refused by the court, a reopening of the decree. Claimant on her part covenanted to discontinue the two actions pending in New York against the Messrs. Rhinelander, to deliver to Mr. Rhinelander, Sr., a release of any liability for the alleged alienation of affections and a release of her rights to share in the son’s estate, and to waive and release any right to use the name of Rhinelander. The agreement by the elder Rhine-lander to guarantee all the payments promised by his son has already been described herein. After the Nevada court had reopened its decree on claimant’s motion and had modified it by including as a term thereof the above summarized agreements for claimant’s support, the agreements executed by the father and son were delivered to her. She thereafter regularly (before and after the death of Mr. Rhinelander, Jr., in 1936) received from Mr. Rhinelander, Sr., the moneys due her under the agreements until, after the death of the elder Rhinelander in 1940, the payments stopped. In its opinion the Appellate Division quotes undisputed testimony which is to the effect that, regardless of the words of the agreement, the real intent of the parties was that the agreements would not have been delivered had not the Nevada decree been reopened on claimant’s appearance and petition, and the agreement for support written into that decree. We accept that statement in the Appellate Division’s opinion as being in the nature of a finding of fa'ct. We accept also, for present purposes, and we give effect to, another statement in the Appellate Division’s opinion that in substance what claimant did by these negotiations, agreements and court appearances in Nevada was “to agree to give the original Nevada decree the same force and effect as if it had been originally obtained after appearance * * We, however, find it impossible to concur with the conclusion of law in the Appellate Division’s opinion, that claimant’s agreements and activities in 1930 were “ as much against public policy as an agreement to procure a divorce.” (supra, p. 610.)

There will be no disagreement as to the quality of the court’s duty in this case. We are not giving utterance to our ovm views on social questions. “ * * * when we speak of the public policy of the State, we mean the law of the State, whether found in the Constitution, the statutes or judicial records.” (Glaser v. Glaser, 276 N. Y. 296, 302.) Finding-nothing in those repositories which invalidates, or requires invalidation of this testator’s guaranty agreement, we are bound to enforce that agreement according to its terms.

It is no part of the public policy of this State to refuse recognition to divorce decrees of foreign states when rendered on the appearance of both parties, even when the parties go from this State to the foreign state for the purpose of obtaining the decree and do obtain it on grounds not recognized here. (Glaser v. Glaser, supra, p. 302.) Nor is it our public policy to refuse enforcement to a separation agreement incorporated into such a foreign divorce. (Hess v. Hess, 276 N. Y. 486.) We do have a statute nearly fifty years old, and expressing a prohibition much older, which lays down the rule that" a husband and wife cannot contract to alter or dissolve the marriage * * (Domestic Relations Law, § 51.) This Court has never hesitated to enforce that statute and to strike down any agreement fairly within its intendment. (Schley v. Andrews, 225 N. Y. 110; Murthey v. Murthey, 287 N. Y. 740; Harris v. Harris, 287 N. Y. 444.) But going back as far as 1835 {Daggett v. Dagett, 5 Paige 509) we find no expression of public policy justifying the annulment of the agreement we are scrutinizing here. In the Daggett case ‘ ‘ the Chancellor said, that so long as the marriage contract remained in force, the wife was not legally competent to make a valid contract with her husband in relation to her right to alimony; and that such agreements made in advance, * * * would have a tendency to produce collusion between parties with a view to the dissolution of the marriage contract between them.” The Chancellor went on to say that such an agreement, to receive the sanction of the court, must either be shown to the court to be perfectly fair and equitable or must be made after the bond of matrimony had actually been dissolved, as to the wife, by a decree of the Court.” Since the time of Daggett v. Daggett, we have moved in the direction of legalizing separation agreements made during marriage, so long as they are not agreements to separate or to release the husband from his obligation to support the wife. (Clark v. Fosdick, 118 N. Y. 7; Galusha v. Galusha, 116 N. Y. 635; Winter v. Winter, 191 N. Y. 462.) In pursuance of our settled policy to favor the continuance of the marriage relation, we have, however, consistently refused enforcement to a separation or support agreement shown to be part of a scheme to obtain or facilitate a, divorce, as when the husband promises to pay alimony as a reward to his wife for getting a divorce, or when the money provisions for her support are a premium or award, inducement or advantage to the wife for procuring a divorce. (Lake v. Lake, 136 App. Div. 47; Schley v. Andrews, supra.) "A bargain to obtain a divorce or the effect of which is to facilitate a divorce, is illegal.” (Restatement of the Law of Contracts, § 586.) Some of the New York cases have gone beyond the letter of the statute (Domestic Relations Law, § 51), which refers in terms only to a contract to alter or dissolve the marriage ” and have refused sanction to agreements which directly tended toward such a dissolution. But our progress in the direction of broadening the coverage of section 51 has gone no further than to apply that section, and its policy, to agreements which have a direct tendency toward dissolving marriages. In Butler v. Marcus (264 N. Y. 519) the husband and wife, while living apart, made an agreement whereby a generous amount for the wife’s support was to be paid monthly for one year, the payments to stop at the end of the year if the parties were then still married; but if before the end of that year either party should obtain a divorce, then the payments should continue. The wife obtained a Nevada divorce before the end of the critical year. To a suit brought by her against her former husband on the agreement, the defense was asserted that the agreement was void as against public policy and in violation of section 51 of the Domestic Relations Law. This court affirmed an order striking out that defense as insufficient in law and granting plaintiff summary judgment.

No case examined by us goes so far as to say that a support agreement made after the entry of a foreign divorce decree, is unenforceable because in connection with the making of the agreement the wife put in an appearance in the foreign suit and thus gave the decree some appearance of due process, which it otherwise might seem to lack. In the present case claimant Alice Jones had sued for support in New York. She had sued her husband’s father for another cause. She was told that the husband and his father were willing to settle those claims of hers and make provisions for her support throughout her life. Let us infer as did the Appellate Division, that the husband and his father insisted that the arrangement must take the form of a reopening and modification of the divorce decree, on the wife’s application. The parties had long been separated and there was outstanding a judgment of divorce entered in the state where the husband had taken up his residence. The parties had been and were embroiled in bitter litigation in this State. Essentially the 1930 arrangement was a settlement of money claims growing out of a marriage already dissolved. Accepting the strongest and most sweeping expression of the rule of public policy here involved, going even so far as does the text-writer Bishop (Marriage, Divorce and Separation, vol. 2, §§ 691, 702, 730) when he says that an agreement is invalid if it “ stimulate the divorce ” or is " pro-motive of divorce ” and that such an agreement " vitiates every other bargaining of which it forms an inseparable part ” we cannot reasonably apply any such concept or any such rule to the arrangement described in this record. “A contract which binds one of the parties to do that which is contrary to the policy of the state or nation is void ” (Matter of Hughes, 225 App. Div. 29, 31; affd., 251 N. Y. 529) but the contract here did not, in terms or in meaning, so bind anyone.

Our views on the question of the legality of testator’s promise make it unnecessary to discuss various other questions argued before us, including the possible separability of the supposedly illegal from the confessedly legal, undertakings of the agreement, or the alleged estoppel of testator and his estate. Nor is it necessary at this time to compare Haddock v. Haddock (201 U. S. 562) with Williams v. North Carolina (317 U. S. 287.)

The Appellate Division’s modification of the Surrogate’s decree was “ on the law and the facts.” As we have said above, we consider that these agreements are enforceable, on the Appellate Division’s own view of those facts which bear on the question of legality. As to the other question set up by the objections, that is, whether or not the obligation of the guaranty survived testator’s death, we have no doubt of the correctness of the Surrogate’s holding that it did so survive.

The order of the Appellate Division in so far as it modifies the decree of the Surrogate’s Court should be reversed and the decree of the Surrogate’s Court affirmed with costs in this court and in the Appellate Division, payable out of the estate.

Lehman, Ch. J., Loughran, Finch, Rippey and Lewis, JJ., concur; Conway, J., dissents on opinion of Lazansky, P. J., in the Appellate Division.

Ordered accordingly.


author: Lewis, J.

text:
    Harold Halverson, Respondent, v. 562 West 149th St. Corporation et al., Defendants, and Renrose Realty Corporation, Defendant-Appellant.
    Argued January 12, 1943;
    decided March 4, 1943.

      Sidney J. Loeb, Charles H. Lane and Leo F. Potts for appellant.

      Charles A. Loreto for respondent.
   Lewis, J.

Our inquiry upon this appeal goes to the single question whether there is any evidence sufficient in law to sustain the judgment against the defendant-appellant, which awards damages to the plaintiff for personal injuries.

The plaintiff, during a period of his unemployment, was afforded meals and was given small sums of money by his brother who was the superintendent of an apartment house leased and operated by the defendant-appellant. Occasionally when the plaintiff’s brother was ill or when he needed help in work about the building, the plaintiff gave assistance. The plaintiff admits that he was not paid at any time for the work which he did. Indeed, in his brief as respondent upon this appeal the plaintiff admits that he was not an employee of the defendant. "When his brother, the apartment superintendent, was called as a witness and was asked to state the circumstances under which the plaintiff assisted him in his work, he testified — " He didn’t do it much, but when it was to be done he volunteered to do it.”

We are concerned here with an occasion when the plaintiff’s brother had directed a plumber to disconnect a radiator in the entrance hallway of the apartment house and to remove the radiator to an upper apartment. In accomplishing that change the plumber, being unable to loosen one of the radiator bolts, used a chisel and hammer which the plaintiff’s brother had furnished. During the plumber’s effort to dislodge the bolt the plaintiff stood three feet away holding a lighted flash lamp which his brother had supplied and had requested him to hold at such an angle that it cast, its light upon that part of the radiator where the plumber was working. The plaintiff’s witnesses differ as to whether the plumber was banging ” on the radiator or on the bolt. However, the evidence is clear that the banging ” which occurred while the plumber was using the hammer and chisel had gone on uneventfully for a period of five or ten minutes when a minute piece of metal struck the plaintiff’s eye causing serious injuries. The evidence does not disclose the source from which came the small piece of metal which struck the plaintiff — whether from the bolt, the radiator or from one of the tools which the plumber was using.

In the present action the plaintiff had a judgment at Trial Term against the defendant-appellant, which has been affirmed at the Appellate Division, one justice dissenting.

There is evidence from which the jury could have found that at the time of the accident the plaintiff was an invitee upon the defendant’s premises. Considering him as such, the measure of the defendant’s duty was the exercise of reasonable care toward the plaintiff who at the time of the accident was assisting the defendant’s agent, the plumber, in the performance of a simple mechanical act — not one which was inherently dangerous.

But aside from evidence that the accident occurred, we find no proof of actionable negligence by the defendant or its agent. One who seeks redress at law does not make out a cause of action by showing without more that there has been damage to his person. If the harm was not willful, he must show that the act as to him had possibilities of danger so many and apparent as to entitle him to be protected against the doing of it though the harm was unintended.” (Palsgraf v. Long Island R. R. Co., 248 N. Y. 339, 345.) Evidence to that end is lacking here.

True, it is now suggested by the plaintiff-respondent that the jury might have found that in the performance of the work which was in progress when the plaintiff was injured, the plumber, in the exercise of reasonable care, should have used different tools from those which he chose; that he should have arranged for the use of an electric light on an extension cord which would have made unnecessary the use of a flash lamp; that he should have improvised screens or guards around the radiator upon which he was working to prevent injury to those who might be standing near. But these and other like suggestions are now made “ looking back at the mishap with the wisdom born of the event.” (Greene v. Sibley, Lindsay & Curr Co., 257 N. Y. 190, 192.)

No evidence was offered by the plaintiff to show that, in the manner in which the plumber performed the particular work he had undertaken, he acted contrary to the common usage and practice of his trade by which a standard of care appropriate to such work had been created. In the absence of such evidence the jury, looking back at the event, may not base a finding of fault upon conjecture as to what means could have been adopted to avoid the accident. “ The failure on the part of a defendant to observe some duty of care, or precaution, owing to the plaintiff, generally or specifically, will constitute negligence and will give rise to a cause of action for resultant injury; but it should be established by the evidence, directly, or upon clear inferences from the facts. It cannot rest upon conjecture simply.” (Holland House Co. v. Baird, 169 N. Y. 136, 142.)

We do not find in the record before us proof of facts by which a breach of duty owing by the defendant to the plaintiff was established either directly or by clear inference.

The judgments should be reversed and the complaint dismissed with costs in all courts. (See 290 N. Y. 670.)

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

Judgments reversed, etc.


author: Rippey, J.

text:
    Hartol Products Corporation, Appellant, v. Prudential Insurance Company of America, Respondent.
    Argued December 3, 1942;
    decided March 4, 1943.

      Harold R. Medina, H. Victor Crawford, Stuart Sprague and William F. McNulty for appellant.

      Benjamin Paul Goldman for respondent.
   Rippey, J.

On February 6, 1930, defendant delivered to Frank C. Hart a policy of life insurance, dated that day and numbered 6820987, in which Hart was named as the insured and plaintiff was named as the beneficiary. In consideration of the payment of an additional premium, a rider was attached to and made a part of the policy providing for Accidental Death Benefit,” which, so far as material, read as follows: In Addition to the Insurance Under the Policy to which this rider is attached, and subject to the provisions of said Policy, the Company will pay, as an Accidental Death Benefit, Fifty Thousand Dollars, to the Beneficiary or Beneficiaries under said Policy, or, if no Beneficiary be living when said Policy becomes a claim by death, to the executors, administrators or assigns of the Insured, immediately upon receipt of due proof that such death occurred during the continuance of said Policy while there was no default in the payment of premium, as a result, directly and independently of all other causes, of bodily injuries, effected solely through external, violent and accidental means, of which, except in case of drowning or of internal injuries revealed by an autopsy, there is a visible contusion or wound on the exterior of the body, and that such death occurred within ninety days of the accident, provided, however, that no Accidental Death Benefit shall be payable if such death resulted from suicide — whether sane or insane; from having been engaged in military or naval service in time of war; or in submarine operations or in aviation or aeronautics, as a passenger or otherwise; or from a state of war, riot or insurrection; or directly or indirectly from bodily or mental infirmity or disease in any form.” Between February 6, 1930, and August 9, 1935, changes and amendments were made in and to the policy necessitating rewriting but not affecting in any respect any question here involved. The rider as originally issued and the policy proper with such changes and amendments under its original date of issuance and number were in full force and effect at the time of the death of the assured.

The accidental death of Frank 0. Hart occurred on January 14, 1936, near Goodwin, Arkansas, in a crash of a passenger plane of United States registry in which he was riding as a fare-paying passenger en route from Newark, N. J., to Los Angeles, California, on a regularly scheduled flight over an established air route. The plane was then being operated by a licensed pilot. Hart had no part in operating the plane during the flight or at the time of the crash and was not engaged in flying, aviation or aeronautics as an occupation or calling at the time of his death. He was the president of the plaintiff corporation whichwas engaged in the oil business and was on & business trip for his company when the fatal accident occurred. When claim was presented by the named beneficiary for payment of the accidental death benefit provided for in the policy, payment was refused by defendant on the ground that, as found by the trial court, “ the manner in which Prank C. Hart’s death resulted was not within the coverage of the ‘ Accidental Death Benefit ’ provisions contained in the policy of life insurance bearing number 6820987.” The correctness of that finding, a point of construction of the accidental death benefit provision of the policy, presents the only matter raised for our consideration.

It is unquestionably the rule that Contracts of insurance, like other contracts, are to be construed according to the sense and meaning of the terms which the parties have used, and if they arc clear and unambiguous the terms are to be taken and understood in their plain, ordinary and proper sense ” (Johnson v. Travelers Ins. Co., 269 N. Y. 401, 408). Any literal interpretation of the exclusion clause in this case in so far as it affects the right of plaintiff to recover, with the setup, arrangement and punctuation of words and expressions, seems to be concededly impossible. If the words “ or in aviation or aeronautics, as a passenger or otherwise ” are considered as set off by themselves, as they are by their arrangement in the clause, without other connection, they are meaningless. Quite obviously, as seems to be conceded by respondent, so far as material here, the clause in fact must be arranged to read: “ no Accidental Death Benefit shall be payable if such death resulted * * * from having been engaged * * * in aviation or aeronautics, as a passenger or otherwise.” As appellant urges, the word engaged ” so used has an occupational connotation and does not'refer to an ordinary fare-paying passenger on an isolated flight when not occupationally engaged in aviation or aeronautics. Persuasively, respondent has itself placed such a construction on the language used (1 Couch on Insurance, pp. 330, 331). If we look at the application, which was made part of the policy, and at the policy itself, we find that wherever the word " engaged ” is used it is employed to denote an occupation or calling. Where the word “ engaged ” is used in the exclusion clause with reference to military or naval service in time of war ” or to submarine operations,” it clearly has an occupational significance only. It is hardly to be supposed that the defendant, in writing its policy, would use the word in one sense and with a particular and peculiar meaning in the exclusion clause when relating to aviation and aeronautics and in an entirely different sense and different meaning when relating in the same clause to military and naval service in time of war and to submarine operations and in every other spot in the application and policy in which the word is used. Likewise, as appellant asserts with undeniable force, the average person applying for a policy would no more think of a passenger on an airplane as being engaged in aviation or aeronautics than he would think of á passenger on a railroad train as being-engaged in railroading or a passenger on an ocean liner as being engaged in navigation. The use of the words “as a passenger or otherwise ” does not necessarily refer to a fare-paying- passenger on a private business trip in a commercial plane since it is a well-known fact that persons are frequently passengers on extra-hazardous experimental and test flights as well as on ordinary carefully managed flights that are free from such hazards. Such a reference would be contrary to the occupational idea necessarily inferable from the clause as a whole. It is conceivable that such extra hazards were the things the defendant had in mind. The findings in the case indicate that the defendant revised the wording of its own accidental death benefit riders at least twice after the issuance of the policy in suit for what seems to have been the apparent purpose of clarifying and mailing more certain the meaning of the words of exclusion. In December of 1932, it made use of this expression: No Accidental Death Benefit shall be payable if such death resulted * * * from operating, or riding in, any kind of * * * aircraft except as a fare-paying passenger in a licensed aircraft operated by a licensed pilot.” In 1935 it changed the expression " in a licensed aircraft operated by a licensed pilot ” and further clarified the meaning of the clause by using the words “ fare-paying passenger in a licensed passenger aircraft provided by an incorporated passenger carrier and operated by a licensed pilot on a regular scheduled flight over a regularly established air-route.” The significance of those changes seems to lie in the fact that obscurity in the meaning of the clause used in 1930 required clarification.

It is well-settled that if a policy of insurance is written in such language as tó be doubtful or uncertain in its meaning, all ambiguity must be resolved in favor of the policy holder and against the company (Griffey v. New York Central Ins. Co., 100 N. Y. 417; Darrow v. Family Fund Society, 116 N. Y. 537, 544; Matthews v. American Central Ins. Co., 154 N. Y. 449, 456; Janneck v. Metropolitan Life Ins. Co., 162 N. Y. 574; Silverstein v. Commercial Casualty Ins. Co., 237 N. Y. 391). To sustain the construction which the lower courts have placed upon the clause, the burden was on the defendant to establish that the words and expressions used not only are susceptible of that construction but that it is the only construction that can fairly be placed thereon. The argument cannot successfully be made that the words used are free from ambiguity. If we are to give effect to all of the words used in the application and in the policy as a whole as well as in the particular clause being considered in their commonly accepted meaning, we must construe the provision as excluding liability for death resulting to a policy holder engaged in the occupation of aviation or aeronautics, whether death resulted while he was a passenger or whether it resulted while he was so engaged in any capacity. It is not sufficient to warrant exclusion that he was merely a passenger. He must further be engaged in aviation or aeronautics. The word “ engaged ” means something more than occasional participation as a pas- ■ senger (Cf. Peters v. Prudential Ins. Co., 133 Misc. 780, 782). The obvious ambiguity is emphasized by the ease with which the defendant could have excluded fare-paying passengers upon an isolated flight when not engaged in the occupation or calling of aviation or aeronautics (Gits v. New York Life Ins. Co., 32 F. 2d 7). In the Janneck case (supra), in justification of the rule that any doubtful construction must be resolved in favor of the insured, this court said: * * * we do not deny the right of an insurance company to make just such a contract as the defendant claims to have made in the present instance. But insurance contracts, above all others, should be clear and explicit in their terms. They should not be couched in language as to the construction of which lawyers and courts may honestly differ. In a word, they should be so plain and unambiguous that men of average intelligence who invest in these contracts may know and understand their meaning and import ” (p. 577). In Equitable Life Assur. Society v. Dyess (194 Ark. 1023) the court pertinently said: “If appellant meant to exclude liability for double indemnity while riding as a passenger or otherwise in any kind of aircraft, why did it not say so in such plain language that a wayfaring man, though a fool, might not be deceived thereby? It would appear a simple thing for a great institution, such as appellant, to write a clause in its policy exempting itself from such liability in plain and simple language.” The question is simply whether the average man in applying for insurance and reading the language of this policy at the time it was written would ascribe the meaning to that language which the insurance company here urges (Lewis v. Ocean Accident & Guarantee Corp., 224 N. Y. 18, 21). We are persuaded that he would not and that he would feel that he was covered by the double indemnity provisions of the policy on an ordinary isolated airplane flight as a fare-paying passenger unless he was engaged at the same time in the business or calling of aviation or aeronautics. It seems clear that the intent of the parties was to protect such a man against ‘ ‘ the risk of casualty. ’ ’

A somewhat similar question was presented to this court in Gibbs v. Equitable Life Assur. Society (256 N. Y. 208, 209), a case principally relied on by defendant in support of its construction of the clause in question. The policy in that case, written in 1924, provided for double indemnity for accidental death unless it should result from “ engaging as a passenger or otherwise in submarine or aeronautic expeditions.” It was there held that a trip in an airplane was at the time the policy ivas issued so novel a thing as to be thought of by the average individual as an expedition, and the court pointed out that since the technical meaning of the word “ expedition ’ ’ is inconsistent with the presence of passengers,.that the parties must have had some different meaning in mind when the words “ passenger ” and “ expeditions ” were used together. That case is of little help to us in determining the present question. There is nothing in the opinion in that case that forecloses consideration of current changes in the common understanding of the ordinary everyday meaning of words and phrases which changing conditions of life over a lapse of time have effected. Such consideration was given by the company itself and changes in meaning clarified and made effective in policies later issued, as we have pointed out above. As pointed out in the Gibbs case, in 1924 a voyage either under the sea or in the air was not customary for the average individual. It was an extraordinary event and was thought to be and was accompanied by unusual hazards ” (p. 210). On the contrary, in 1930, a trip by air was not uncommon for the average individual, was fieither an extraordinary event nor accompanied by unusual hazards. In this case it has been found that in 1930 there was carried a total of 417,505 passengers for a total of 103,747,249 passenger air miles (the term ‘ passenger air mile ’ meaning one passenger carried one mile), with a safety record of 4,322,802 passenger air miles flown per passenger fatality ” while in 1935 there was carried “ a total of 860,761 passengers for a total of 360,569,431 passenger air miles * * * with a safety record of 24,037,962 passenger air miles flown per passenger fatality.”

At the close of the entire case both sides moved for judgment. By the provisions of section 584 of the Civil Practice Act, this court is required to render such judgment as the findings warrant (Wechsler v. Bowman, 285 N. Y. 284, 296).

The judgments should be reversed and judgment directed for the plaintiff in the sum of $50,000, with interest thereon from January 14, 1936, together with costs to the appellant in all courts.

Loughran, Pinch, Lewis and Conway, JJ., concur; Lehman, Ch. J., and Desmond, J., dissent on the ground that by the clear and unambiguous language of the policy the accident was excluded from the. coverage of the “ accidental death benefit provisions. ’ ’

Judgment accordingly. (See 290 N. Y. 744.)


author: Lehman, Ch. J. Finch, J.

text:
    James D. C. Murray, Appellant, v. Peter J. Brancato, Respondent.
    Argued November 23, 1942;
    decided March 4, 1943.

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

      John J. Bennett, Jr., Attorney General (William J. Cahill and James S. Regan of counsel), for respondent.
   Lehman, Ch. J.

The complaint alleges that the defendant, a judge of the County Court of the County of Kings, in deciding motions made by the District Attorney or by the plaintiff as attorney for a person then under indictment, “ maliciously composed ” two opinions, annexed to the complaint, containing defamatory statements concerning the plaintiff, a member of the bar of the State. The complaint further alleges “ upon information and belief, that * * * defendant, acting unofficially and privately, published, and advised, induced, procured, and aided and abetted in the publication of ” these opinions in the New York Law Journal and in New York Supplement, Second Series, and that “West Publishing Company was and is a corporation organized and existing pursuant to the statutes of the State of Minnesota, with its principal place of business in St. Paul, Minnesota, from which place it published and sold, for general distribution ” the New York Supplement. In this action the plaintiff seeks damages from the defendant for each alleged publication. The gravamen of the plaintiff’s asserted causes of action is ‘ ‘ that said publication was false, which defendant at all times well knew; and was so published by him, acting unofficially and privately, as aforesaid, wantonly, recklessly and with malice aforethought to defame plaintiff and injure him both in his professional character and in his good name and reputation. ’ ’

The defendant in his answer denied material allegations of the complaint and alleged as an affirmative defense to each cause of action that each opinion ‘ ‘ complained of herein, was a judicial opinion duly written by defendant as said County Judge of the County of Kings, State of New York, in the exercise and discharge of his duties, upon the determination of a motion made before the defendant as such County Judge ” and that these ‘ ‘ judicial opinions * * * were entirely pertinent and relevant to the questions raised upon the aforesaid motions which they determined and are absolutely privileged.” The Attorney-General of the State, appearing as attorney for the defendant, moved for an order dismissing the complaint herein, upon the ground that the complaint fails to state facts sufficient to constitute a cause of action against defendant, and upon the further ground that the writing complained of, in the complaint herein, was absolutely privileged under and by virtue of judicial immunity.” The order of Special Term denying the motion was reversed by the Appellate Division and the motion to dismiss the complaint was granted on the ground that " the publication of the opinions was in the exercise of a judicial function and they are absolutely privileged.” (264 App. Div. 862.) The only question presented upon this appeal is whether the publication of which the plaintiff complains was " in the exercise of a judicial function ” for which the law gives complete immunity to the judge even if he acted maliciously and with actual intent to injure the plaintiff.

There can be no doubt that the defendant is exempt from liability for all acts done in the exercise of his judicial function. Long ago Chancellor Kent in Yates v. Lansing (5 Johns. 282, 291) traced the history of the rule which exempts judges of courts of record from prosecution or suit for any illegal act done in the exercise of a judicial function and stated that the principle has " a deep root in the common law.” Citing* with approval the opinion of Chancellor Kbut, the Supreme Court of the United States in Bradley v. Fisher (13 Wall. 335, 351) formulated the applicable rule. " Judges of courts of superior or general jurisdiction arc not liable to civil actions for their judicial acts, even when such acts are in excess of their jurisdiction, and are alleged to have been done maliciously or corruptly. A distinction must be here observed between excess of jurisdiction and the clear absence of all jurisdiction over the subject-matter.” (Italics throughout this opinion are ours.) The rule or principle of exemption has been stated in many opinions and in varying forms, but" It is to be seen that in these different modes of stating the principle, there abides a qualification. To be free from liability for the act, it must have been done as judge, in his judicial capacity; it must have been a judicial act. So it always remains to be determined, when is an act done as judge, in a judicial capacity? And this is the difficulty which has most often been found in the use of this rule, and which is present here; to determine when the facts exist which call into play that qualification. For it is plain that the fact that a man sits in the seat of justice, though having a clear right to sit there, will not protect him in every act which he may choose or chance to do there.” (Lange v. Benedict, 73 N. Y. 12, 25, 26.)

No case has been cited to us where exemption from liability was claimed by a judge for any act done or words spoken or written when the judge was not actually sitting in the seat of justice,” i. e., in connection with a matter then sub judice. The opinions which the plaintiff claims contain false and defamatory statements were written and filed in a matter upon which the defendant was called to rule. It is clear that even if those opinions had been written with knowledge of their, falsity and with actual intent to injure the plaintiff, the defendant, in accord with the well-established public policy, would be exempt from liability for “ composing ” the opinions. The plaintiff does not claim otherwise. He seeks damages for the alleged malicious publication of the opinions after the matter ivas no longer sub judice. The problem presented upon this appeal is only whether the complaint alleges causes of action for such publication.

In this State, in accordance with the Constitution and statutes, a State Law Reporting Bureau has been established for the publication of official reports of opinions and decisions of the court. The Judiciary Law provides that the " law reporting bureau shall report every cause determined in the court of appeals and every cause determined in the appellate divisions of the supreme court, unless otherwise directed by the court deciding the cause; and, in addition, any cause determined in any other court which the state reporter, with the approval of the court of appeals, considers worthy of being reported because of its usefulness as a precedent or its importance as a matter of public interest.” (§ 431.) In the next section the Judiciary Law provides that í¿ the judges or justices .of every court of record, including surrogates, shall promptly cause to be delivered to the state reporter, without charge, a copy of every written opinion rendered in causes determined therein J’ (§ 432.) Since only those opinions rendered in courts of first instance which might be useful as precedents or which have importance as a matter of public interest, are published in the official reports, the judges and justices of these courts have, with almost complete unanimity, given to the statutory mandate a practical construction, and they deliver to the State Reporter copies of only those opinions which the Reporter requests or which the judge writing the opinion might deem “ worthy of being reported.” Regardless of the scope of the legislative mandate it is plain that the law of this State now places upon each judge an official duty to facilitate the publication in the official reports of opinions worthy of being reported. That new duty is so connected with the strictly judicial duties of a judge that we assume that all acts done in connection with the statutory duty fall within the scope of judicial immunity though done maliciously or corruptly. No such question is presented upon this appeal. The plaintiff here seeks to hold the defendant for the publication of an opinion in unofficial reports and eoneededly the law placed upon the defendant no duty in connection with such publication.

We are asked to take judicial notice that the New York Law Journal and the New York Supplement, though not official reports, are recognized legal publications, and that " opinions in the New York Supplement are continually cited both by judges and attorneys in opinions, decisions and briefs.” Even though that be true, a judge has no official duty in connection with any publication of opinions except in the official reports. The publication of an opinion begins when the judicial decision is complete, and though in some degree connected with the exercise of a judicial function, since the law imposes upon the judge no duty to publish opinions in unofficial reports, acts connected with such publication are not performed by the judge in his judicial capacity. The judge’s rights and duties there are the same as those of any private person and if he chooses to act he must be held liable like any other person for damages resulting from a wrongful act 'maliciously performed with intent to injure another, unless the courts on grounds of public policy extend into neighboring fields the immunity from liability created by law for the protection of judges when acting within the field of their official functions and duties. No imperative public poEcy pointing to such extension is contained in any statute and we discern none in any judicial decisions. Only by judicial legislation beyond the legitimate power of the courts could such extension be made; nor can we see any reason for extending the immunity to publications in the New York Law Journal and the New York Supplement and excluding from the extended field of immunity publications in Law Reviews, or even in popular magazines or in the daily press. Such differences may be relevant in deciding whether the publication was made with actual malice and with intent to injure the person defamed by the publication — it is difficult to see in such differences a guide by which the court could draw a new line separating absolute judicial immunity from the qualified common law privilege in which all persons share.

Though we have found no case in which any court has discussed the question whether the absolute immunity of a judge extends to the publication of a judicial opinion, the courts of England long ago decided that the analogous absolute immunity of a member of Parliament for words spoken in the house does not extend to publication outside the house. (See Odgers on Libel & Slander [6th ed., 1929], pp. 269, 270; Newell on Law of Slander & Libel [4th ed.], § 355.) Except where the Legislature may perhaps have extended the absolute immunity of judges or legislators or may perhaps have conferred absolute immunity upon persons publishing true and correct accounts of judicial or legislative proceedings the publication of judicial and legislative proceedings in unofficial reports is privileged only if made in good faith and from proper motives. Odgers, op. cit. pp. 252, 265; Newell, op. cit. §§ 450, 460; Evans, “ Legal Immunity for Defamation ” 24 Minn. L. Review [1940] 607, 610; Prosser on Torts, [1941] 844-851.)

The Legislature of the State of New York by chapter 130 of the Laws of 1854 provided that no reporter, editor or proprietor of any newspaper shall be liable to any action or prosecution, civil or criminal, for a fair and true report in such newspaper of any judicial, legislative, or other public official proceedings * * * except upon actual proof of malice in making such report, which shall in no ease be implied from the fact of publication. ’ ’ This statute, it has been said, was " simply declaratory of the common law.” (Ackerman v. Jones, 37 N. Y. Super. Ct. 42, 54.) The statute was in substance reenacted as section 1907 of the Code of Civil Procedure and as section 337 of the Civil Practice Act. Then in 1930 by chapter 619 of the Laws of 1930 the words "without proving actual malice in making the report ” were omitted and no express qualification of the privilege remained in the statute. Still later the statutory privilege was extended to cover publication by all persons.

There may be doubt whether the omission of the express qualification of the privilege was intended to change the common law rule of liability where there is proof of " actual malice.” See discussion of the effect of similar omission in the analogous English statute. (Odgers, op. cit. 267,268.) There may be doubt too whether the statute is intended to apply to the publication by a judge of an opinion written by himself. No such questions are here presented or considered. The defendant has pleaded only Mg absolute immunity from liability for any acts done in his judicial capacity, and the courts below considered no other defense. In no event could the statute confer immunity for publication outside the State, and though we may presume that in Minnesota, where the New York Supplement is published, the common law rule exists which demes to an aggrieved person a right of action without proof of actual malice there is no allegation or proof that absolute immunity has been conferred by any statute there.

Improbable though it may be that this defendant or any other judge would publish an opinion with actual malicious intent to injure a lawyer, and though we may well doubt whether the plaintiff can prove such allegations contained in the complaint, we must upon this appeal assume that they are true. They are sufficient to constitute a cause of action.

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

Finch, J.

(dissenting). The question presented is whether the defense of absolute privilege is available to a defendant in a libel action based upon the charge that the defendant, a duly elected judge of the County Court, Kings county, procured the publication of two opinions written by Mm allegedly libeling plaintiff, in the New York Law Journal and the New York Supplement.

Plaintiff had been retained as counsel for one Cordon who had been indicted in the County Court of Kings county, of which defendant is a judge, for the crime of manslaughter. Plaintiff appeared before defendant and moved for an adjournment of G-ordon’s trial on the ground that plaintiff was then engaged in arguing a case before the Connecticut Court of Errors. Defendant denied the motion and plaintiff declined to participate in the trial. The court then assigned counsel to Gordon. Gordon, through the assigned counsel, then declined to participate in the trial and was convicted. Plaintiff again appeared before defendant, moving to set aside the verdict on the ground that Gordon had been deprived of his constitutional right to have counsel of his own choosing. In denying this motion, defendant wrote the first allegedly libelous opinion, charging that plaintiff had merely attempted to win delay in order to have Gordon’s case come up before another judge of plaintiff’s choice. Plaintiff appealed, urging as the principal ground of reversal, defendant’s action in assigning counsel instead of adjourning the trial at plaintiff’s request. Subsequently the District Attorney made a motion before defendant, contending that plaintiff was including in the record on appeal only his own affidavit in reference to the aforesaid matters and moving that the other papers pertinent to said matters also be included in the record. In granting the District Attorney’s motion, defendant wrote the second allegedly libelous opinion, implying that plaintiff had not acted in good faith in this matter and then had attempted to shift the blame to the clerk of the court. It appears that defendant thereafter forwarded copies of these opinions to the New York Law Journal and the New York Supplement, with the request that they be published.

The New York Law Journal is published by a corporation located in New York city. The Law Journal has been designated as the official newspaper in the First Judicial Department for the publication of calendars and official notices. The New York Supplement, second series, and the Advance Sheets of the New York Supplement, second series, are published by West Publishing Company located at St. Paul, Minnesota. Both the Supplement and the Advance Sheets to the Supplement are well known legal publications, widely circulated among the legal profession in this and other states.

Upon the publication of the aforesaid two opinions, plaintiff based the present libel action against defendant. The first cause of action alleges the publication of the first opinion in the New York Law Journal. The other three causes of action allege the publication in Minnesota of the first and second opinions in the New York Supplement, and also the second opinion in the Advance Sheets of the New York Supplement. It is further alleged that defendant officially and in his individual capacity procured the publication of these opinions in these publications.

Defendant pleaded absolute judicial privilege and moved for judgment on the pleadings. Special Term denied the motion, holding that while defendant acts in his official capacity when he reads an opinion in court or hands it to the clerk, he acted unofficially when he forwarded his opinions to these publications widely used in the legal profession though unofficial. The Appellate Division reversed and dismissed the complaint, holding that the publication of the opinions was in the exercise of a judicial function, and was absolutely privileged.

To resolve the question into its component parts we must determine, first, whether defendant is liable in a civil action for his utterances in an opinion, when it is alleged that defendant has maliciously made a defamatory and untrue statement in such judicial opinion. Second, whether the use of this« opinion subsequent to its writing by the judge, in sending it to the New York Law Journal and the West Publishing Company, publisher of the New York Supplement, accompanied by a letter specifically requesting its publication, renders the judge liable in a civil action even though the writing of the opinions, as aforesaid, would not create such liability.

It has been the settled holding of the English Courts for many centuries, and is a principle generally accepted in this country, that judges of courts of superior or general jurisdiction are not liable in civil actions for their judicial acts, although such acts are in excess of their jurisdiction and are alleged to have been done maliciously. (Lewis v. Levy, E. B. & E. 537, 120 Eng. Reprint 610; Wason v. Walter, L. R. 4 Q. B. 73; Lange v. Benedict, 73 N. Y. 12, 25; Sweeney v. O’Dwyer, 197 N. Y. 499, 504; Bradley v. Fisher, 13 Wall. 335, 351.) This immunity rests upon the general principle, which is of the highest importance to the proper administration of justice, that a judicial officer, in exercising the authority conferred upon him, shall be free to proceed in accordance with his own convictions without apprehension of personal consequences to himself. Liability to anyone who might feel himself aggrieved by the action of the judge would be inconsistent with the possession of this freedom, and wo.uld impair that independence which is so necessary to an efficient judiciary. A judge who maliciously makes a defamatory and untrue statement in the course of a judicial proceeding commits a reprehensible act for which he may be punished, but considerations of public policy protect the judge from any challenge of his good faith in a civil action. This principle obtains in all countries in which there is any well ordered system of jurisprudence.

Is the privilege of freedom from liability in a civil action then lost to those making public use of a judicial opinion if it is alleged that the opinion was forwarded with a letter requesting publication to the New York Law Journal and the New York Supplement? In determining the question of the liability of one dealing with a judicial opinion, it must be remembered that the opinion forms a part of the record of the case and that this record is filed as a public document. As a public document a judicial opinion may be reproduced freely. Article VI, section 22, of the State Constitution provides that all judicial opinions or decisions shall be free for publication by any person. The Constitution also requires the Legislature to provide for the creation of a State Law Reporting Bureau, charged with the duty of publishing official reports of opinions and decisions of all the courts of this State. (Art. VI, § 22.) Implementing this provision of the Constitution, the Legislature has required that the judges or justices of every court of record, including Surrogates, shall promptly cause to be delivered to the State Reporter, without charge, a copy of every opinion rendered in causes determined before them. (Judiciary Law, § 432.)

The filing of the record in a case in public places and the constitutional provision for free publication of judicial opinions are founded upon the permanent policy of the State to have justice administered publicly rather than in Star Chamber. (Lee v. Brooklyn Union Pub. Co., 209 N. Y. 245, 247; cf. Stevens v. Sampson, (1879-80) L. R. 5 Ex. D. 53, 55.) The Civil Practice Act, indeed, has gone further in carrying out this policy by providing that a civil action may not be maintained against any person for the publication of a fair and true report of any judicial, legislative or other public and official proceedings. (§ 337.)

It is urged, however, that the privilege of judicial immunity cannot be extended to publication of an opinion in the New York Supplement which is published in the State of Minnesota.

An opinion must be read not only by the immediate litigants before the court, but also by members of the legal profession in general who must deal with it in the light of the principle of stare decisis and this applies to attorneys and others both within and without the State. It is well known that decisions and opinions in the New York Supplement are continually cited both by judges and attorneys in opinions, decisions and briefs. Therefore, publication of judicial opinions in this recognized and widely used legal publication is an accepted and constituent part of the judicial process in this State. Such publication comes within the principle that any dealing with a part of a. record in a case must, for the proper and efficient administration of justice, be attended with an absolute privilege in order to protect attorneys and others using this record, as well as the judge.

Any person dealing with or sending a duly written judicial opinion to the New York Law Journal or New York Supplement should not first have to consult the libel law. To hold that upon such publication the privilege is lost is contrary to the very principle upon which the privilege is founded. We decide nothing else.

As to matters which lie outside the scope of the judicial authority vested in the judge, he occupies no different position from the members of the bar and his fellow citizens, and his actions are judged by the same measure of responsibility. (Douglas v. Collins, 243 App. Div. 546, affd. 267 N. Y. 557.)

The judgment appealed from should be affirmed.

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

Judgment accordingly.


text:
    Commissioners of the State Insurance Fund, Appellants, v. City Chemical Corporation, Appellant and Respondent, and Akatos, Inc., Defendant, Respondent.
    Argued January 19, 1943;
    decided March 4, 1943.

      Harry Schechter, William F. O’Rourke and William H. Stieglitz for plaintiffs,

      Godfrey von Hofe for Akatos, Inc., respondent.

      Lyman A. Spalding and Robert E. Curran for City Chemical Corporation, appellant and respondent.
   Desmond, J.

Plaintiffs-appellants, as insurers, paid the workmen’s compensation claim of one Procopiadi and so became subrogated to Procopiadi’s rights against any third person whose wrongdoing had caused Procopiadi’s injuries. As such subrogee, appellants sued respondent City Chemical Corporation. The complaint sounds in negligence. It alleges that Chas. Pfizer & Co., Inc., employer of Procopiadi, bought from respondent City Chemical Corporation two bottles labeled ‘ Pyruvic Acid C. P.” (chemically pure) which the Pfizer Corporation, to respondent’s knowledge, intended to use as a reactant, that the substance in the bottles was not pyruvic acid but some inherently dangerous explosive substance, that Procopiadi, as Pfizer’s employee, attempted to open one of the bottles, which thereupon exploded, injurying Procopiadi. The answer of respondent City Chemical Corporation admits that it delivered to Procopiadi’s employer two bottles labeled Pyruvic Acid C. P.” but denies knowledge of the use to which the substance was to be put by Pfizer or its employees and denies that it (City Chemical Corporation) delivered in those bottles any inherently dangerous or explosive substance. City Chemical Corporation sets up also in its answer a cross-claim against a third corporation, Akatos, Inc., which is a respondent on this appeal. In this cross-claim City Chemical Corporation says that it procured from Akatos, Inc., the same two bottles which in turn went to City Chemical Corporation, in the same condition and with the same contents, and that if the bottles did not contain pyruvic acid, and if they were mislabeled and contained any harmful thing, then the fault, says City Chemical Corporation, was the fault of Akatos, Inc. This cross-claim seems to go on two theories, that is, breach of warranty by Akatos, and negligence of the latter. Akatos, in its turn, pleads that it is a vendor and distributor, not a manufacturer, of chemicals, and that the pyruvic acid which it sold to City Chemical Corporation, came to Akatos, in the same unopened bottles, from a manufacturer in Germany. At the close of the evidence offered by appellants and by respondent City Chemical Corporation (Akatos, Inc., put in no proof) the complaint and the cross-complaint were both dismissed. The dismissal was affirmed by the Appellate Division. We proceed to an examination of the facts to determine whether there is any evidence of City Chemical Corporation’s negligence.

Procopiadi was a laboratory assistant employed by the Pfizer Company, manufacturing chemists. A chemist named Kane, Procopiadi’s superior, directed that there be performed in the laboratory at the Pfizer plant, an experiment requiring the use of pyruvic acid. Pfizer’s purchasing department ordered the pyruvic acid from City Chemical Corporation, a manufacturing chemist, and the latter delivered two small bottles to Pfizer’s messenger at the City Chemical plant. There is in the record an affidavit by an officer of City Chemical Corporation, offered in evidence by plaintiff against City Chemical Corporation, without objection. In that affidavit it is averred that the affiant, when the order for the pyruvic acid came to him, told Pfizer’s purchasing agent by telephone that City Chemical Corporation would get the same if he could send someone up here for it. ” It is argued here that that statement proves notice to Pfizer that City Chemical Corporation had not itself prepared the acid but was obtaining it elsewhere. We think at best it is some evidence of such notice; the same affidavit contains the information that City Chemical Corporation, before sending on the bottles to Pfizer, removed the Akatos labels from the bottles and pasted on each bottle a label containing the name of City Chemical Corporation and the designation “ Pyruvic AcidC.P.”

When the time came, later the same afternoon, to use the pyruvic acid in the Pfizer experiment, Procopiadi found difficulty in removing from the first bottle its glass stopper, which stopper was covered with a little piece of cloth tied around the neck of the bottle with string. The bottles were amber-colored so that the color of the liquid could not be seen through the-glass (chemically pure pyruvic acid, according to the testimony, is colorless). Procopiadi, according to his testimony, tapped one of the bottles lightly with a spatula to loosen the stopper. The bottle exploded and blew into bits, some of the particles of glass injuring Procopiadi’s eye. The substance in the bottle, according to plaintiff’s proof, was of an odor, color and consistency entirely unlike pure pyruvic acid. Pfizer’s employees had used pyruvic acid before, were familiar with its physical properties and had never heard of it exploding under ordinary conditions. They were of the opinion that it would not decompose or generate explosive gases, except under heat and light conditions not obtaining at the time of this explosion. We consider that this showing was enough to raise a question of fact as to whether the substance in the bottles was or was not chemically pure pyruvic acid. (The contents of the other, and unopened, bottle were not available for testing since chemist Kane, out of caution, threw that other bottle away.)

The trial justice was of the opinion that, since City Chemical Corporation was a vendor and not a manufacturer, no recovery could be had against it except on proof against it of some negligent act or «omission. Any finding of such negligence, he thought, would be the product of mere speculation. We agree that this record would not justify a jury finding of such negligence on the part of City Chemical Corporation, but we do not think that is the end of the case.

Ordinarily the maker of a dangerous drug who labels it as a harmless drug, is liable to the ultimate consumer injured thereby; ordinarily a mere dealer who vends such a dangerous and mislabeled drug in its original package is not liable without proof of some real negligence on Ms part. (Thomas v. Winchester, 6 N. Y. 396, discussed in MacPherson v. Buick Motor Co., 217 N. Y. 382 at page 385, also see DuPont, De Nemours & Co., v. Baridon, 73 F. 2d 26, 29.) But such a vendor may hold himself out to his customer as bemg the manufacturer and if he does, he takes on a liability like unto that of the manufacturer. (Willson v. Faxon, Williams & Faxon, 208 N. Y. 108, 113, 114; Auld v. Sears, Roebuck & Co., 261 App. Div. 918, affd. 288 N. Y. 515.) One who puts out as his own product a chattel manufactured by another is subject to the same liability as though he were its manufacturer.” (Restatement of The Law of Torts, vol. 2, § 400.) I think,” wrote Judge Willard Bartlett in Willson v. Faxon, Williams & Faxon, at page 113 of 208 N. Y. that when the defendant represented to the plaintiff by means of the statement contained in the label on the box that Faxon, Williams & Faxon were the manufacturers of the preparation it rendered itself just as liable to the purchaser as the actual manufacturers would have been if the purchase had been made from them.” In the present case there was at the trial a prima facie showing that the substance in the bottles was not the bland pyruvic acid ordered by Pfizer, but some dangerous explosive, and that the words on the bottle labels amounted to a representation that City Chemical Corporation was the maker of the substance in the bottle and that the substance was chemically pure pyruvic acid. We do not here have to go so far as do cases like Tiedje v. Haney (184 Minn. 569), which imposes a manufacturer’s liability on a dealer who represents that the substance is “ prepared for him.” Here, as in the Willson case (supra) the inscription on the label could be taken to mean that City Chemical Corporation had itself prepared the liquid in the bottles. The case should have gone to the jury.

Since there must be a new trial, we mention that we see no error in the Trial Justice’s ruling permitting the impleaded defendant to cross-examine plaintiff’s witnesses.

The judgments should be reversed and a new trial granted as to both defendants, with costs to the plaintiffs-appellants against the defendant-respondent City Chemical Corporation, to abide the event.

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

Judgment accordingly.


author: Per Curiam.

text:
    Nicolai Classen-Smith et al., Appellants, v. National City Bank of New York, Respondent.
    Argued December 3, 1942;
    decided March 4, 1943.

      James F. Donnelly and Walter F. Sloan for appellants.

      Otey McClellan, MacIlburne Voorhies and Martin J. Cunningham for respondent.
   Per Curiam.

Motion under rule 107, subdivision 6, of the Buies of Civil Practice for judgment dismissing the complaint upon the ground that the causes of action stated did not accrue within the time limited by law for the commencement of an action thereon. The complaint of the plaintiffs purports to state two separate alternative causes of action. Each contains allegations that a sum of money was deposited with defendant on behalf of the plaintiffs and that there has been a refusal of payment after demand made. Assuming, as we must for the purposes of this motion, that the facts are as pleaded, there may be no recovery if plaintiffs had actual knowledge for more than six years before action brought of the facts presented in the voluminous affidavits and documentary exhibits submitted to us. (Civ. Prac. Act, § 15; see Tillman v. Guaranty Trust Go., 253 N. Y. 295.) Proof of such knowledge may depend upon the contents of a letter, a copy of which is attached both to the moving papers and to the papers in opposition. The copies differ slightly in wording. Each of the parties draws favorable inferences from the letter. We do not think that it is so conclusive against plaintiffs that it justifies a dismissal of the complaint under rule 107, subdivision 6, of the Buies of Civil Practice. (Transbel Investment Co. v. Venetos, 279 N. Y. 207, 213.)

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

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

Judgment accordingly.