text:
    In the Matter of Frank J. Clancy, Respondent, against John J. Halleran, as Commissioner of Public Works of the City of New York, Borough of Queens, et al., Appellants.
    (Submitted May 21, 1934;
    decided May 29, 1934.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 263 N. Y. 258.)


source: Caselaw Access Project

license: Public Domain

text:
    Diana Kronberg, Respondent, v. Edbro Realty Co., Inc., et al., Appellants.
    (Submitted May 21, 1934;
    decided May 29, 1934.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 264 N. Y. 555.)


text:
    Rose F. Snyder, Respondent, v. Frank V. Bopp et al., Appellants.
    (Submitted May 21, 1934;
    decided May 29, 1934.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 264 N. Y. 576.)


text:
    Margaret McMartin, Respondent, Impleaded with Others, v. The Fidelity and Casualty Company of New York, Appellant.
    (Submitted May 21, 1934;
    decided May 29, 1934.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 264 N. Y. 220.)


text:
    Charles J. M. Christenson, Appellant, v. Nicholas N. Petterson et al., Respondents.
    (Submitted May 21, 1934;
    decided May 29, 1934.)

      Robert S. Erskine for motion.

      Irving G. Kennedy opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion, on the authority of Feinstein v. City of New York (237 N. Y. 547).


text:
    Blanche C. Alexander, Respondent, v. The Torridaire Company et al., Appellants.
    (Submitted May 21, 1934;
    decided May 29, 1934.)

      Walter L. Glenney for motion.

      Sidney A. Wolff opposed.
   Motion denied, with ten dollars costs and necessary printing disbursements, on the ground the appeal may be taken as of right as the Appellate Division did not unanimously affirm the judgment below.


text:
    Oak Hill Country Club, Respondent, v. The Town of Pittsford et al., Appellants.
    (Submitted May 21, 1934;
    decided May 29, 1934.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 264 N. Y. 133.)


text:
    Ruth Abis, an Infant, by Abraham J. Abis, Her Guardian ad litem, et al., Respondents, v. Hana Salzman, Appellant.
    (Submitted May 21, 1934;
    decided May 29, 1934.)

      Edward A. Shandell for motion.
    No one opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    In the Matter of the Accounting of Mary M. Kneeskern, as Administratrix of the Estate of Maggie K. Smith, Deceased. Ollie Kneeskern, as Executrix of Mary M. Kneeskern, Deceased, Appellant and Respondent. Fred S. Lathers et al., as Administrators of the Estate of Jonas S. Smith, Deceased, Respondents and Appellants.
    (Submitted May 21, 1934;
    decided May 29, 1934.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 261 N. Y. 642.)


text:
    Sarah Kowalsky, as Administratrix of the Estate of Meyer Kowalsky, Deceased, Respondent, v. The Conreco Company, Inc., Appellant, Impleaded with Others.
    (Submitted May 21, 1934;
    decided May 29, 1934.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 264 N. Y. 125.)


text:
    Bookbinders Trade Association, Inc., Respondent, v. John B. Haggerty, Individually and as President of the International Brotherhood of Bookbinders, et al., Respondents, and Mary J. Murphy, Individually and as President of Bindery Women’s Union Local No. 43 of the International Brotherhood of Bookbinders, et al., Appellants, Impleaded with Others. Mary J. Murphy, as President of the Bindery Women’s Local Union No. 43, etc., Appellant, v. John B. Haggerty, Individually and as President of the International Brotherhood of Bookbinders, et al., Respondents.
    (Submitted May 21, 1934;
    decided May 29, 1934.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 264 N. Y. 571.)


text:
    Edward F. Addiss et al., as Executors of Morton H. Meinhard, Deceased, Appellants, v. Elsa R. Selig, Respondent.
    (Submitted May 21, 1934;
    decided May 29, 1934.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 264 N. Y. 274.)


text:
    Irving Trust Company, as Trustee in Bankruptcy of Cliffoyd Manufacturing Company, Respondent, v. B. Lindner & Bro., Inc., Appellant.
    (Submitted May 21, 1934;
    decided May 29, 1934.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 264 N. Y. 165.)


text:
    The People of the State of New York, Respondent, v. Sam Kaplan and Theodore Greenberg, Appellants, Impleaded with Others.
    (Argued April 24, 1934;
    decided June 5, 1934.)

      Max D. Steuer and Irving J. Levy for appellants.

      William Copeland Dodge, District Attorney (Robert C. Taylor and Felix C. Benvenga of counsel), for respondent.
   Judgments affirmed; no opinion.

Concur: Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs and Crouch, JJ.


text:
    In the Matter of the Claim of John C. Degenfelder, Appellant, v. H. G. Vogel Company et al., Respondents. State Industrial Board, Respondent.
    (Argued May 21, 1934;
    decided June 5, 1934.)

      George C. Riley for appellant.

      Horace C. Winch for H. G. Vogel Company et al., respondents.
   Order affirmed, with costs; no opinion.

Concur: Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs and Crouch, JJ.


text:
    In the Matter of the Claim of Timothy Ring, Respondent, v. Corona Fuel & Supply Company, Inc., et al., Appellants. State Industrial Board, Respondent.
    (Argued May 21, 1934;
    decided June 5, 1934.)

      Herbert Plant, Harold Davis and Irvin A. Snyder for appellants.

      JohnJ. Bennett, Jr., Attorney-General (JohnR. O’Hanlon of counsel), for State Industrial Board, respondent.
   Order affirmed, with one bill of costs; no opinion.

Concur: Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs and Crouch, JJ.


text:
    In the Matter of the Claim of Commissioner of Taxation and Finance, on Account of the Death of Faiell Hollinger, against Ben Fure et al., Respondents. State Industrial Board, Appellant.
    (Argued May 21, 1934;
    decided June 5, 1934.)

      John J. Bennett, Jr., Attorney-General (Boy Wiedersum and Henry Epstein of counsel), for appellant.

      William E. Lyons and Barnett Cohen for respondents.
   Order affirmed, with costs against the State Industrial Board; no opinion.

Concur: Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs and Crouch, JJ.


text:
    The People of the State of New York ex rel. Federal Motor Truck Co. of New York, Inc., Appellant, against Thomas M. Lynch et al., Constituting the State Tax Commission, Respondents.
    (Submitted May 21, 1934;
    decided June 5, 1934.)

      Herbert G. McLear for appellant.'

      John J. Bennett, Jr., Attorney-General (Wendell P. Brown of counsel), for respondents.
   Order affirmed, with costs; no opinion.

Concur: Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs and Crouch, JJ.


text:
    The People of the State of New York ex rel. Schluter & Company, Inc., Respondent, against Thomas M. Lynch et al., Constituting the State Tax Commission, Appellants.
    (Argued May 21, 1934;
    decided June 6, 1934.)

      John J. Bennett, Jr., Attorney-General (Wendell P. Brown of counsel), for appellants.

      J. Hampden Dougherty, Jr., for respondent.
   Order affirmed, with costs; no opinion.

Concur: Pound, Ch. J., Lehman, O’Brien, Hubbs and Crouch, JJ. Crane, J., dissents on the ground that People ex rel. Ducas Co. v. State Tax Commission (260 N. Y. 525) is not binding upon this court on the facts in this case.


text:
    In the Matter of the Accounting of Emma E. Haar, as Administratrix with the Will Annexed of the Estate of George Haar, Deceased, Respondent. Lester F. J. Moller et al., as Executors of Annie J. Haar, Deceased, Appellants.
    (Argued May 21, 1934;
    decided June 5, 1934.)

      Peter Maynard Horn for appellants.

      Burt L. Rich for respondent.
   Order affirmed, with costs payable out of the estate of Annie J. Haar, deceased; no opinion.

Concur: Pound, Ch. J., Lehman, O’Brien, Hubbs and Crouch, JJ. Not sitting: Crane, J.


text:
    In the Matter of the Estate of Ferdinand Tagliarini, an Incompetent Person. Michael Erceg, Substituted Committee, Appellant; Frank T. Hines, as Administrator Veterans Administration, et al., Respondents.
    (Submitted May 21, 1934;
    decided June 5, 1934.)

      Lawrence R. Condon and Osborne A. McKegney for appellant.

      James A. Clark and Leo J. Ross for Veterans Administration, respondent.
   Appeal dismissed, with costs, on the ground that the appellant was not a party to the proceeding. No opinion.

Concur: Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs and Crouch, JJ.


text:
    In the Matter of Gaspar Artes, Respondent, against Manniello Bros. & Mayrsohn, Inc., Appellant.
    (Argued May 21, 1934;
    decided June 5, 1934.)

      Sa?nuel Saline, Emil L. Barad and Adelma H. Burd for appellant.

      Alexander II. Rockmore and Ira S. Wit for respondent.
   Order affirmed, with costs; no opinion.

Concur: Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs and Crouch, JJ.


text:
    In the Matter of the Application of George Goldberg, Respondent, for Payment of Award in Proceedings to Acquire Title to Liberty Avenue from Brooklyn Borough Line to Van Wyck Avenue in the Borough of Queens. W. Arthur Cunningham, as Comptroller of the City of New York, et al., Appellants.
    (Argued May 22, 1934;
    decided June 5, 1934.)

      Paul Windels, Corporation Counsel (John H. Finn, Anson Qetman and George S. Parsons of counsel), for appellants.

      William Gold and George Goldberg for respondent.
   Order affirmed, with costs; no opinion.

Concur: Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs, Crouch and Loughran, JJ.


text:
    In the Matter of the Petition of the New York Central Railroad Company for the Elimination of Grade Crossings in the City of New York. The City of New York, Appellant; The Transit Commission of the State of New York, Respondent.
    (Argued May 22, 1934;
    decided June 5, 1934.)

      Paul Windels, Corporation Counsel (Joseph L. Weiner and Vincent Victory of counsel), for appellant.

      Frank C. Bowers, John T. Walsh and George H. Stover for respondent.
   Order affirmed, with costs; no opinion.

Concur: Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs, Crouch and Loughran, JJ.


text:
    Umberto Politano, Appellant, v. Aaron L. Jacoby, Respondent, Impleaded with Another.
    (Argued May 22, 1934;
    decided June 5, 1934.)

      Charles Rothenberg for appellant.

      Reginald S. Hardy, Gardiner Conroy and Joseph A. Solovei for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs, Crouch and Loughran, JJ.


text:
    In the Matter of the Accounting of Sarah F. Fabbricotti, Deceased, as Trustee under the Will of Luciano Fabbricotti, Sr., Deceased. Stella G. Fabbricotti, Individually and as Administratrix of the Estate of Luciano Fabbricotti, Jr., Deceased, et al., Appellants; Annina F. Fara-Forni, Respondent.
    (Argued May 22, 1934;
    decided June 5, 1934.)

      Herman Aaron and Charles Adkins Baker for appellants.

      William R. Conklin, Frederick H. Comstock and Edward S. Bentley for respondent.
   Order affirmed, with costs to the respondent payable out of the estate; no opinion.

Concur: Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs, Crouch and Loughran, JJ.


text:
    The People of the State of New York ex rel. Louis Rogall, Respondent, v. Aaron Jacoby, as Sheriff of the County of Kings, Defendant; Hood Rubber Products Co., Inc., Appellant.
    (Submitted May 28, 1934;
    decided June 5, 1934.)
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 264 N. Y. 485.)


text:
    Edwin F. Werring et al., Appellants and Respondents, v. Charles Selig, as Executor of Henry W. Schiff, Deceased, et al., Respondents and Appellants, Impleaded with Others.
    (Submitted May 28, 1934;
    decided June 5, 1934.)

      Harris Jay Griston for motion.

      Harris Berlack opposed.
   Motion denied, with ten dollars costs and necessary printing disbursements, on the ground that leave to appeal is not necessary.


text:
    Joe Kessler, Respondent, v. Ben Fligel, Appellant.
    (Submitted May 28, 1934;
    decided June 5, 1934.)

      Lawrence Kovalsky for motion.

      Samuel M. Rivelson opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    Woodside Presbyterian Church, Respondent, v. I. Townsend Burden, Appellant, Impleaded with Another.
    (Argued May 23, 1934;
    decided June 8, 1934.)

      J ohn T. Norton and Joseph C. Behan, Jr., for appellant.

      J ames Farrell for respondent.
   Appeal dismissed, with costs, and question certified not answered. No opinion.

Concur: Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs, Crouch and Loughran, JJ.


text:
    In the Matter of the Transfer Tax upon the Estate of Emma B. Kennedy, Deceased. Alumnae Association of the School of Nursing of the Presbyterian Hospital in the City of New York, Appellant; State Tax Commission, Respondent.
    (Argued May 23, 1934;
    decided June 8, 1934.)

      Neil P. Cullom, John F. Brosnan and James E. Freehill for appellant.

      Seth T. Cole for respondent.
   Order affirmed, with costs; no opinion.

Concur: Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs, Crouch and Loughran, JJ.


text:
    Emma Kuhn et al., Appellants, v. Title Guarantee and Trust Company, Respondent, Impleaded with Others. Samuel S. Kaufman et al., Appellants, v. Title Guarantee and Trust Company, Respondent, Impleaded with Others.
    (Argued May 23, 1934;
    decided June 8, 1934.)

      Joseph A. Seidman for appellants.

      John A. Kelly for respondent.
   In each case, order affirmed, with costs; and question, certified answered in the affirmative. No opinion.

Concur: Pound, . Ch. J., Crane, Lehman, O’Brien.. Hubbs, Crouch and Loughran, JJ.


text:
    The People of the State of New York, Respondent, v. Alfred Berman, Appellant.
    (Argued May 23, 1934;
    decided June 8, 1934.)

      Benjamin Finkel and Hyman Netnser for appellant.

      William 'F. X. Oeoghan, District Attorney (Henry J. Walsh of counsel), for respondent.
   Judgment affirmed; no opinion.

Concur: Pound, Ch. J., Lehman, O’Brien, Crouch and Loughran, JJ. Dissenting: Crane and Hubbs, JJ.


text:
    Marguerite Burns, Appellant, v. The Board of Education of the City of New York, Respondent, Impleaded with Another.
    (Argued May 23, 1934;
    decided June 8, 1934.)

      J. Edmond Hewitt, Lloyd Paul Stryker, Harold Shapero and Raymond C. Murphy for appellant.

      Paul Windels, Corporation Counsel (Paxton Blair and Samuel A. Bloom of counsel), for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs, Crouch and Loughran, JJ.


text:
    Marion Colon, Respondent, v. The Board of Education of the City of New York, Appellant.
    (Argued May 24, 1934;
    decided June 8, 1934.)

      Paul Windels, Corporation Counsel (Paxton Blair of counsel), for appellant.

      Arthur K. Wing and James G. Purdy for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs, Crouch and Loughran, JJ.


text:
    In the Matter of the Accounting of Julius Weiman, as Administrator of the Estate of Anna Weiman, Deceased, Respondent; Beatrice Weiman, Individually and as Administratrix de Bonis Non of the Estate of Anna Weiman, Deceased, et al., Appellants.
    (Argued May 24, 1934;
    decided June 8, 1934.)

      Charles H. Tuttle, Joseph H. Robins and Henry Lichtig for appellants.

      Harold R. Medina and Rufus C. Van Aken for respondent.
   Order affirmed, with costs; no opinion.

Concur: Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs, Crouch and Loughran, JJ.


text:
    In the Matter of the Accounting of the United States Trust Company of New York, as Trustee under the Will of Emily A. Watson, Deceased, Respondent; Harvey A. Dwight et al., Appellants. Jean B. Dwight et al., Respondents.
    (Argued May 25, 1934;
    decided June 8, 1934.)

      Frank L. Wiswall and A. Kendall Roberts for Harvey A. Dwight et al., appellants.

      H. V. Smart and C. Alexander Capron for Herwarth von der Decken, appellant.

      William S. Siemon for Eleanor H. Marihugh et al., appellants.

      Howard Thayer Kingsbury, Vermont Hatch, Windsor B. Putnam, Edgar G. Wandless, E. Sheldon Stewart and Arthur McCausland for respondents.
   Order affirmed, with costs to all parties appearing and fifing separate briefs payable out of the estate. No opinion.

Concur: Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs, Crouch and Loughran, JJ.


text:
    Kennedy Van Saun Manufacturing and Engineering Corporation, Appellant, v. Miller Brothers Construction Company, Inc., Respondent.
    (Argued May 25, 1934;
    decided June 8, 1934.)

      Herbert G. McLear for appellant.

      Francis Bergen for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs and Crouch, JJ. Not sitting: Loughran, J.


text:
    Edward S. Preston, Sr., Respondent, v. United States Fidelity and Guaranty Company, Appellant.
    (Argued May 25, 1934;
    decided June 8, 1934.)

      Byron A. Johnson for appellant.

      Howard Cobb for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs, Crouch and Loughran, JJ.


text:
    The People of the State of New York, Respondent, v. Sidney Lewis, Appellant.
    (Argued May 25, 1934;
    decided June 8, 1934.)

      Carl J. Lewis and Michael I. Winter for appellant.

      William Copeland Dodge, District Attorney {LeRoy Mandle of counsel), for respondent.
   Judgment affirmed; no opinion.

Concur: Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs, Crouch and Loughran, JJ.


text:
    Clara Polackoff, Respondent, v. Henry Sonn & Co., Inc., Appellant.
    (Submitted May 25, 1934;
    decided June 8, 1934.)

      Everett W. Bovard and Daniel Mungall for appellant.

      Harry A. Gair and Edward Fingerman for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Pound, Ch. J., Crane, Lehman, O’Brien, Hubbs, Crouch and Loughran, JJ.


text:
    In the Matter of Oscar Vatet, Respondent, against the Scarborough School, Appellant.
    (Submitted June 4, 1934;
    decided June 8, 1934.)

      Alphonse V. Brisson for motion.

      George B. Francis opposed.
   Motion denied, with ten dollars costs.


text:
    Joseph A. Broderick, as Superintendent of Banks of the State of New York, Plaintiff, v. Max Aaron et al., Defendants; James K. Rice, Jr., et al., Copartners under the Firm Name of J. K. Rice, Jr., & Co., Appellants, and William A. Greer et al., Copartners under the Firm Name of Greer Crane & Webb, Respondents.
    (Submitted June 4, 1934;
    decided June 8, 1934.)
   Motion to amend remittitur denied. (See 264 N. Y. 368.)


text:
    Charles Gass, Appellant, v. Louis S. Wetmore et al., Copartners under the Firm Name of L. S. Wetmore Co., et al., Defendants, and Benjamin R. Kittredge, Respondent.
    (Submitted June 6, 1934;
    decided June 8, 1934.)
   Motion for reargument denied and motion to amend remittitur granted. Return of remittitur requested and when returned it will be amended by adding the following: “ Upon the appeal herein the defendants contended that the contract sued on was illegal under the provisions of the National Prohibition Act and such contention was sustained by the court.” (See 264 N. Y. 663.)


author: Crane, J.

text:
    Mohammed Al Raschid, Appellant, v. News Syndicate Co., Inc., Respondent.
    (Argued May 21, 1934;
    decided July 3, 1934,)

      Francis Dean, Stewart W. Bowers and Vahan H. Kalenderian for appellant.

      Arthur A. Moynihan for respondent.
   Crane, J.

By a divided court the Appellate Division has held the complaint bad. Whether it be an action for malicious prosecution or for injury caused by a malicious act or for neither is difficult to determine. In substance the complaint states that the plaintiff is a native born citizen of the United States; that the defendant wickedly and maliciously and without probable cause gave false information to the immigration officials, which caused them to prosecute, arrest and deport the plaintiff for alleged violations of the immigration laws in 1922, 1924, 1925, 1928, 1929, 1930 and 1931, and that the proceedings terminated in plaintiff’s favor. Here are the usual allegations of an action for malicious prosecution.

We agree with the Appellate Division that proceedings before the immigration authorities are not judicial proceedings. The administration of the immigration laws is vested in a Commissioner General of Immigration who is an officer in the Department of Labor and performs his duties under the direction of the Secretary of Labor. (Mason’s United States Code, Annotated, tit. 8, ch. 6, §§ 101, 102.) The duties of the Commissioners of Immigration and other immigration officials are administrative in character to be prescribed in detail by regulations prepared under the direction or with the approval of the Secretary of Labor (§ 108). (Nishimura Ekiu v. United States, 142 U. S. 651; White v. Gregory, 213 Fed. Rep. 768; United States v. Greenawalt, 213 Fed. Rep. 901.) (See in point, Hayashida v. Kakimoto, 132 Cal. App. 743; Bodwell v. Osgood, 3 Pick. [Mass.] 379; Burt v. Smith, 181 N. Y. 1.)

Neither does the plaintiff say that the defendant instigated or prosecuted any action even if the proceeding were of a judicial nature, merely that it gave false information. This is not enough. (Barry v. Third Avenue R. R. Co., 51 App. Div. 385).

So much for the appellant’s insistence that this is an action for malicious prosecutions. Whatever we may call it an action does he, however, if the complaint states any facts showing a wrong which the law recognizes and will redress. One may not be hable for malicious prosecutions and yet be legally responsible for mahciously circulating or giving false information resulting in intentional injury to another. Even a lawful act done solely out of malice and illwill to injure another may be actionable. (Beardsley v. Kilmer, 236 N. Y. 80.) “A man has a right to give advice, but advice given for the sole purpose of injuring another’s business and effective on a large scale, might create a cause of action.” (American Bank & Trust Co. v. Federal Reserve Bank, 256 U. S. 350, 358.) An action will lie for knowingly and intentionally and without reasonable justification or excuse inducing a breach of contract. (Lamb v. Cheney & Son, 227 N. Y. 418; Hornstein v. Podwitz, 254 N. Y. 443; Campbell v. Gates, 236 N. Y. 457.) Where one set up a barber shop for the sole purpose of injuring the plaintiff’s business and driving him out of it — the wrongdoer being wealthy and not interested in the business itself — and diverted customers from the plaintiff solely for the accomplishment of his malevolent purpose, an action lies against him. (Tuttle v. Buck, 107 Minn. 145.)

So also in Ratcliffe v. Evans ([1892] 2 Q. B. 524, 527, it was decided: That an action will lie for written or oral falsehoods, not actionable per se nor even defamatory, where they are maliciously published, where they are calculated in the ordinary course of things to produce, and where they do produce, actual damage, is established law. Such an action is not one of libel or of slander, but an action on the case for damage willfully and intentionally done without just occasion or excuse, analogous to an action for slander of title.” Salmond in his work on Torts, page 580, refers to this wrong as “ Injurious Falsehood ” concerning the plaintiff. To the same effect Pollock on Torts, page 21.

If the appellant had told us what the false information was he might have stated a good cause of action. He says the defendant maliciously without any justifiable excuse gave false information to the immigration officials which caused his arrest and wrongful deportation to his damage. We must know, however, what the information was. Even in libel and slander, which are actions founded in malice, the words written or spoken must be pleaded. The information may have been harmless and the statement that it caused his arrest a mere conclusion or surmise, not a fact. A complaint must contain a concise statement of the material facts which must be proved upon the trial. (Civ. Prac. Act, § 241.) For this omission the pleading is bad.

The determination of the Appellate Division is, therefore, affirmed with the modification that the appellant is given ten days to plead over. (Civ. Prac. Act, § 584; Avey v. Town of Brant, 263 N. Y. 320.)

The judgment should be modified by providing that plaintiff may have ten days in which to serve an amended complaint on payment of costs in all courts and as so modified affirmed, with costs.

Pound, Ch. J., Lehman, O’Brien, Hubbs, Crouch and Loughran, JJ., concur.

Judgment accordingly.


author: Hubbs, J.

text:
    Samuel D. Matthews, Appellant, v. Truax, Carsley and Company, Ltd., Defendant, and Mountain Gas Company, Inc., Respondent.
    (Argued June 5, 1934;
    decided July 3, 1934.)

      John T. De Graff for appellant.

      F. Ferris Hewitt for respondent.
   Hubbs, J.

Appellant entered into a contract with Truax, Carsley & Company (hereinafter called Truax Company) to perform certain services. While in the performance thereof the contract was altered. After the performance of the services Truax Company refused to pay the contract price according to the amended or substituted agreement. This action is to recover $4,500 on the amended agreement. Under that agreement, Truax Company agreed to deliver bonds of the defendant Mountain Gas Company (hereinafter referred to as Gas Company) to appellant. During the affair, appellant became possessed of $900 par value of such bonds. Those bonds had been pledged by the Gas Company as collateral. When appellant settled the claim for which they were pledged, the bonds were turned over to him and were in his possession.

In his complaint he offered to credit $900, the value of' such bonds, upon his demand against Truax Company if the Gas Company would validate the bonds. The Gas Company refused to do so. The complaint demands judgment against Truax Company for $4,500, with costs, and also costs against the Gas Company if it defends the action. The complaint does not state a cause of action against the Gas Company. It does not state that the Gas Company claims to own the bonds, or claims a lien thereon, or any interest therein, What was the Gas Company to do?

(1) It could have disregarded the action and let the plaintiff take such judgment as the complaint warranted, if any.

(2) It could have moved upon affidavits to dismiss upon the ground that it claimed no interest in the bonds and was, therefore, not a proper party.

(3) It could have moved to dismiss upon the ground that the complaint failed to state a cause of action against it.

(4) It could answer, as it did, and claim to be the owner of the bonds.

Not only did it claim to be the owner of the bonds, but it also attempted to answer the complaint against Truax Company and at the trial amended its answer tojnake it good against the claim of the appellant against the Truax Company. At the trial, no motion with a proper exception was made by the Gas Company to dismiss the complaint against it. It called witnesses to establish its ownership of the bonds and litigated all the issues raised. By its conduct it made the law of the case and cannot now be heard to say that the complaint was defective. All defects in the complaint, and all defects as to parties to the action, were waived by failure to raise those questions at the proper time. The official referee before whom the case was tried found that appellant was the owner of the $900 par value bonds. The Appellate Division affirmed a judgment for $3,760 against the Truax Company, the balance due appellant after crediting $900, the par value of the bonds.

The Truax Company has not appealed. Appellant has appealed from the reversal by the Appellate Division of the judgment against the Gas Company. The Appellate Division reversed as against the Gas Company on the law and the facts, but did not reverse specific findings of fact, as required by section 602 of the Civil Practice Act. It also dismissed the complaint as against the Gas Company, with costs. The reversal is, therefore, a reversal upon the law only.

It was proper to make the Gas Company a party defendant providing the complaint contained a proper allegation to the effect that it claimed to be the owner of the bonds or some interest therein. (Civ. Prac. Act, §§ 193, 211, 212.) The judgment demanded against it was in the nature of a declaratory judgment. The defendant Gas Company supplied the defects in the complaint by alleging that it was the owner of the bonds in question and demanding that the complaint against it be dismissed. It litigated that question by calling witnesses. It also assisted in the defense of the action against the Truax Company.

As has been stated, the official referee made findings in favor of the appellant and awarded judgment against the Truax Company for $3,760, after crediting $900 on the claim, the value of the bonds in question which were in the possession of appellant. The judgment against the Truax Company has been affirmed and it has not appealed.

The referee also made findings against the Gas Company, and found that the Gas Company was not the owner of the bonds in question. Under the condition of the record, the Gas Company is bound by that finding. There is evidence to sustain it. It is the contention of the Gas Company that appellant could not become the legal owner of the bonds as they were issued in violation of an order of the Public Service Commission. The evidence does not sustain that contention. Certain bonds were legally issued before the order in question was made. The referee might have found that the bonds valued at $900 were a part of those legally issued by the Gas Company and that they came legally into the possession of appellant.

We find no legal error which justified the Appellate Division in reversing the judgment against the Gas Company.

The judgment of the Appellate Division in so far as it dismisses the complaint as against the Mountain Gas Company should be reversed and that of the Special Term affirmed, with costs in this court and in the Appellate Division.

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

Judgment accordingly.


text:
    Daisy Whittaker, Appellant, v. Village of Franklinville, Respondent. Coy Whittaker, Appellant, v. Village of Franklinville, Respondent.
    (Argued May 29, 1934;
    decided July 3, 1934.)

      Alfred M. Saperston, Daniel N. McNaughtan and Samuel Blinkoff for appellants.

      James S. Pierce for respondent.
   Hubbs, J.

On the night of July 3, 1931, certain residents of the defendant village assembled in a small park in the village to inaugurate a Fourth of July celebration by the use of a bonfire, fireworks and the firing off of a home-made cannon. The appellant Daisy Whittaker, while in an automobile on an adjoining street was seriously injured by being struck by a piece of the cannon which burst when fired off. Separate actions were brought by her and her husband to recover damages growing out of the injury suffered. The actions were tried together.

The learned trial justice submitted to the jury the questions of negligence and nuisance. The jury was justified in finding that like celebrations had been held for several years with the knowledge of the members of the village Board of Trustees, and that on one occasion, an anvil which was being fired burst but without injuring any one.

On the night in question, village police were present and one member of the Board of Trustees. The village had not given a written permit or express license authorizing the use of fireworks.

The jury found a verdict in favor of the plaintiff in each action. The trial court set aside the verdicts on • the ground that the village was not liable for negligence"or in failing to suppress or prevent a nuisance. The judgments entered upon the order of the trial court have been affirmed by the Appellate Division.

In considering the questions here involved, it is necessary to have in mind the nature of municipal corporations, the capacities in which they function and the nature of and limitations upon their liability for negligence as well as for nuisance.

Municipal corporations are creatures of the State and have only such powers and authority as is conferred upon them by the Legislature and powers reasonably incident thereto. (Hodges v. City of Buffalo, 2 Den. 110; Halstead v. Mayor, 3 N. Y. 430.) The Legislature has primarily the control of the highways of the State. (Bradley v. Degnon Contracting Co., 224 N. Y. 60.) It has delegated to municipal corporations the duty of maintaining them within their territorial bounds. (Village Law [Cons. Laws, ch. 64], § 141; Matter of McCoy v. Apgar, 241 N. Y. 71.) In performing the duty of maintaining streets and keeping them reasonably safe for public travel, municipal corporations act as the arm of the State performing a delegated function. (Ghee v. Northern Union Gas Co., 158 N. Y. 510; Matter of McCoy v. Apgar, supra.) In performance of that duty they act in a quasi private or corporate capacity. (Maximilian v. Mayor, 62 N. Y. 160; Wilcox v. City of Rochester, 190 N. Y. 137; Missano v. Mayor, 160 N. Y. 123.) Having undertaken to act, the law requires that they act with reasonable care and if they fail to act and their failure to act causes injury, or if they act in a negligent manner which results in an injury to an individual who is exercising reasonable care, they may be liable to the individual for such negligent injury. Illustrations of such liability arising from negligence are failure to exercise reasonable care in the maintenance of sidewalks, bridges and streets. (4 Dillon on Municipal Corporations [5th ed.], § 1717.) They may also be liable for injuries resulting from maintaining a nuisance in a street or expressly authorizing an individual to maintain such a nuisance, the grant of the express permit being held to be equivalent to the main-taming of a nuisance. (Landau v. City of New York, 180 N. Y. 48; Cohen v. Mayor, 113 N. Y. 532.) Such liability grows out of and is the result of failure to exercise care, the duty to exercise which rests upon them by virtue of a statutory delegation of authority. Thus, the tort liability of municipal corporations for nuisance or for negligence in the care of streets is imposed either by the statute which creates the municipalities or is implied from the acceptance of their charters. There is no other liability resting upon municipal corporations for negligence or nuisance in the care of streets. They are creatures of statute and their liability arises out of the obligations and duties placed upon them by statute or implied from their acceptance of charters. Acting under their delegated authority as quasi private or corporate bodies, they must exercise reasonable care not to so act as to cause injury. (Conrad v. Trustees of Ithaca, 16 N. Y. 158; Cain v. City of Syracuse, 95 N. Y. 83.)

The defendant village, under the Village Law, had the duty of keeping the streets in question in a reasonably safe condition for public travel. For any negligent condition of those streets which caused injury to an individual it might under familiar principles be liable in an action for negligence. So it might be liable for any injury suffered because it maintained a nuisance in a street or permitted the maintenance of a nuisance therein. (Cohen v. Mayor, supra, granting a permit to store a wagon on the street; Speir v. City of Brooklyn, 139 N. Y. 6; Landau v. City of New York, supra; Melker v. City of New York, 190 N. Y. 481, permitting the display of fireworks in public streets.)

This action is not based upon any such principle of liability. Here a recovery is sought because the defendant passively acquiesced in the use of fireworks for a celebration of the Fourth of July by failing to prevent the park from being used for such purpose in the course of which celebration the cannon exploded and injured the plaintiff Daisy Whittaker while on an adjoining street. There is a marked distinction between the duty of keeping a street itself reasonably safe because of its condition and keeping it reasonably safe because of failure to prevent conditions on adjoining property which may result in danger to persons using the street. (Landau v. City of New York, supra.)

In the first instance, the duty is quasi private or corporate in its nature. In the second is involved a public or governmental function. Public streets are held by the State in trust for the use of all. Their maintenance involves the performance of a public duty for the benefit of the public in general. (Bradley v. Degnon Contracting Co., supra.)

The maintenance of a small park by a village does not constitute the exercise of a governmental function. (Augustine v. Town of Brant, 249 N. Y. 198.)

While the Village Law permits villages to maintain parks, it does not by positive enactment require them to do so. If they do so it is in the exercise of their discretion, not by command of the State. The village in maintaining the park was not acting in what may be called its private character, in the management of property or rights voluntarily held by it for its own immediate profit or advantage as a corporation, though inuring ultimately to the benefit of the public.” (Maxmilian v. Mayor of New York, supra, p. 167.)

Nevertheless, it was acting in its quasi private or corporate capacity in maintaining the park. The distinction between this case and that of Augustine v. Town of Brant (supra) lies in the fact that here the village is not charged with any positive act of negligence, and while in maintaining the park it acted as in that case, in its quasi private or corporate capacity, it was not as was the fact in that case carrying on a private enterprise for profit.

In so far as the question of negligence is concerned, since no positive act of negligence is charged and the park was not being operated for profit, the rule laid down in Markey v. County of Queens (154 N. Y. 675, 687) is applicable. It was there said: “I do not think it is consonant with the reason of the rule of law, which concedes to the sovereign power in government an exemption from liability, that a private individual may have a right of action against those who have but exercised a lawful power which was vested in them by the legislative body for the public convenience and welfare and not for any private benefit of the corporate body.’' The only ground of liability asserted in this case is that the village failed to take affirmative action to prevent acts of third parties in the park which acts the jury has found rendered the village hable.

The exhibition of fire works in the park did not constitute a nuisance per se or a public nuisance. It was at most a nuisance in fact. (Melker v. City of New York, supra.)

Since the decision in the case of Levy v. Mayor (3 N. Y. Super. Ct. [1 Sandf.] 465) it has been consistently decided by the courts of this State that the failure of a municipal corporation to take affirmative action in a pure governmental matter imposes upon it no liability, as the failure to act constitutes a mere dereliction in the performance of a governmental function. (Maxmilian v. Mayor, supra; Wilcox v. City of Rochester, supra.)

In passing ordinances defining nuisances and providing for their suppression a municipal corporation exercises a usual municipal power and acts in a governmental capacity. (City of Rochester v. Simpson, 134 N. Y. 414.)

Under the facts in these cases, passive acquiescence in allowing a nuisance outside of a street which may cause injury to one using the street is not sufficient to impose liability upon a municipal corporation. (Leonard v. City of Hornellsville, 41 App. Div. 106; appeal dismissed, 166 N. Y. 590; 4 Dillon on Municipal Corporations [5th ed.], § 1703.)

To permit a recovery against municipal corporations for injury resulting from acts of third parties similar to those in the cases at bar, upon land outside of a street, which results in injury to one on a street, would constitute an unjustifiable extension of liability of municipal corporations. As stated by Judge Sandford in Levy v. Mayor (supra, p. 467): The government does not guaranty its citizens against all the casualties incident to humanity or to civil society; and we believe it has never been called upon to make good, by way of damages, its inability to protect against such misfortunes.” While the statement may not be entirely accurate as applied to certain other jurisdictions, we believe it is as applied to the law of this State.

Appellants contend, however, that in the maintenance and control of the park the village acted as an individual and not in a governmental capacity, and is liable because it suffered a nuisance to exist and failed to suppress it. Appellants invoke the principle announced in the case of Hogle v. Franklin Mfg. Co. (199 N. Y. 388), to the effect that an individual may be liable for damages caused by a nuisance maintained or suffered upon premises under his complete control even though such nuisance is created by third persons without his consent which results in injury to a person not on his property.

It is urged that as the defendant had the power to suppress the nuisance, it is liable for failure to exercise such power. That is only another way of saying that the village was under a duty to act as an individual would be required to act under like circumstances.

No such duty exists. It may be that a village has the power to suppress a nuisance even though there be no ordinance prohibiting the particular nuisance. We do not pass upon that question. In any event, the village in such a case would act at its peril. It is sufficient for the purpose of this decision to hold that no duty existed on the part of the village to suppress the nuisance in question created by third parties outside of the street. In the Hogle case a duty rested upon the defendant not to permit its land to be used in a way that wrought injury to its adjoining 'neighbor.

The case of Klepper v. Seymour House Corp. (246 N. Y. 85) is not in conflict with the views here expressed. The city of Ogdensburg was held liable in that case because it had failed in its duty to keep a street reasonably safe. For years, after notice, it permitted a dangerous condition to exist which endangered people passing on the sidewalk. The jury found specifically that the physical situation there existing constituted a public nuisance.

In the case of Greiner v. City of Syracuse (228 App. Div. 566; affd., 256 N. Y. 688) the question here involved was not considered.

The judgment in each case should be affirmed, with costs.

Pound, Ch. J., Lehman, O’Brien and Loughran, JJ., concur; Crane and Crouch, JJ., dissent.

Judgments affirmed.


text:
    In the Matter of the Application of The People of the State of New York, by George S. Van Schaick, as Superintendent of Insurance, Appellant, for an Order to Take Possession of the Property of the Lawyers Title and Guaranty Company. City Bank Farmers Trust Company, Respondent.

      (Argued June 8, 1934;
    decided July 3, 1934.)

      Lawrence S. Greenbaum, Jonas J. Shapiro, Theodore S. Jaffin and Benjamin Kaplan for appellant.

      John F. Caskey for Bond and Mortgage Guarantee Company, amicus curiae.

      William D. Mitchell, Edwin W. Cooney and Edward L. Hunt, Jr., for respondent.
   Crane, J.

We agree with the courts below that after the default of the Lawyers Title and Guaranty Company in paying the interest due June 1, 1933, the mortgagee, the City Bank Farmers Trust Company, had the right to terminate the agency or its relationship with the Title Company, take over the management and control of its property and was entitled to all papers and information connected therewith. This proceeding, commenced October 9, 1933, justified the declaratory order or judgment (Civ. Prac. Act, § 473) of the Special Term wherein these rights of the petitioner were stated. We also agree that in so doing the Trust Company did not release the Guaranty Company from any of its obligations under its contract, which means that if there be any liability for the default of the Guaranty Company it survives.

Whatever effect the action of the Superintendent of Insurance has had upon the failure of the Guaranty Company to pay the installments of interest as they come due, or the principal or to foreclose for taxes, will be settled later if desired or it be necessary. In a word, whatever rights the mortgagee has because of the Guaranty Company’s default, if any, are not lost or waived because from now on it looks after its own property. We say “ if any ” because we do not understand the judgment below to determine that the orders of the Superintendent of Insurance amount to a breach of contract; they at least, and at most for this proceeding, terminate the agency at the election of the mortgage holder. The Superintendent of Insurance has no right of property in the mortgage and the company’s failure to keep its agreement, even if justified by his orders, does not compel mortgagees to put up with incomplete service. The agency ends when the agent no longer can act as it agreed to do unless the persons interested acquiesce in the new arrangements.

We also agree with the disposition made of the rents collected by the Guaranty Company but do not quite follow all that has been said or written. It is not true that these mortgage companies may not reimburse themselves for interest advanced. In this particular- case the situation is complicated or changed because of the year’s default in taxes which accumulated while the company was collecting the rents for its own benefit. But for this the Guaranty Company could have kept the rents or the balance over and above the taxes due.

Under the contract of guaranty dated June 3, 1930, the company was to pay the interest due on this $3,000,000 mortgage within five days after it became due. The mortgagor had thirty days in which to pay it. Interest of $90,000 became due December 1, 1932, and the company sent its check for the amount although it had not received anything from the owner. Had the latter sent the interest money at some later date the company could have kept and applied it to the advance made to the mortgagee. The fact the same taxes might have been due would not have changed these obligations. As a general proposition when interest has been advanced by the Guaranty Company to the mortgagee it was the expectation as well as the custom, well known and recognized, that the company would reimburse itself out of any moneys received thereafter from the mortgagor, whether obtained from rents or otherwise. I cannot tell from the briefs whether this is disputed by the attorneys in this case; probably not, as it is not important here. So, likewise, the company might take an assignment of the rents, pay the taxes due and keep the balance to reimburse its advanced interest to the mortgagee.

All these rights exist when the company does all the things it has contracted to do. Where, however, one part of the agreement is kept and the other broken then the courts see to it that the company is not profiting by its default; that it is not tempted to encourage or prolong a default until it recoups. Such is the present case.

While the Guaranty Company did not guarantee the payment of taxes it was under a duty to act to procure their payment. Taxes are a first lien and penalties accumulate rapidly for non-payment. The company could not, therefore, after it had advanced to the mortgagee the $90,000 interest due December 1, 1932, take an assignment of rents to reimburse itself in the face of a year’s tax defaults amounting to $91,307.60 without adding interest and penalties and $39,086.55, which became payable May 1, 1933, while it was still collecting all the income from the property. The negotiation with the owner whereby the rents were procured acquainted the company with the owner’s financial irresponsibility; thus the assignment of rents. To help itself, it took the only income there was to pay the taxes, leaving the burden and responsibility to the mortgagee whom it was supposed to protect.

By the terms of the guarantee agreement the company undertook to require the owner thereof to pay all such taxes, assessments and water rates and all such fire insurance premiums as by the terms of the mortgage are required to be paid.” There was only one way to require the payment of taxes — by foreclosure proceedings in which a receiver would immediately be appointed, who would receive the rent and pay the taxes before he would pay interest On the mortgage or reimburse the Guaranty Company. Perhaps an assignment of the rents would temporarily obviate the necessity of a receiver and of foreclosure but the same implied duty of application would follow their receipt; taxes first. The petition alleges — the mortgage itself is not in evidence —■ that the mortgage provided that in the event of the default in any of the terms and conditions thereof the rents are assigned to the mortgagee and shall be collectible by it.” This was one of the covenants which the Guaranty Company was to enforce by all such proceedings as may be necessary.” The taking possession of the rents was just such a proceeding — it did not require a court proceeding— any other would do which brought results. The company did what it agreed to do, it proceeded to get possession of the rents, only it got them for itself instead of for the mortgagee. Herein it was at fault and cannot justify keeping them. For this purpose it was acting in a confidential trust relationship arising out of other parts of the guarantee contract; it had tied the hands of the mortgagee so that it could not act for itself and then took advantage of the situation. By the acceptance of this policy the company is irrevocably appointed the exclusive agent of the assured at its own expense * * * to collect the interest on the bond and mortgage hereby guaranteed and to exercise every option or privilege in said bond and mortgage or either of-them contained and given to the mortgagee.”

One option and privilege was to seize the rents on default. The mortgagee had given to the guarantor this right and it proceeded to exercise it for its own benefit.

As before stated, the taxes due amounted to more — not less -— than the interest paid by the Guaranty Company December 1, 1932, and continued to increase while it was collecting rents. Beginning with January 4, 1933, about one month after this interest payment,-the company received from the owner the net rents, less a few disbursements, and the payments continued through February, March, April and May until $55,161.12 had been collected, which the company applied to the repayment of the interest advanced. On June 1, 1933, the Lawyers Title and Guaranty Company defaulted and the mortgagee determined to' end the relationship or at least do so provided it released none of its rights more or less valuable under the policy with the company.

On August 11, 1933, the Superintendent of Insurance took possession and control of the Lawyers Title and Guaranty Company as rehabilitator. He has assumed the position that the Trust Company could not take over its mortgage unless it was willing to release'the company from all liability. The company, therefore, has been collecting the income from the property, part of which has been paid under the rules and regulations of the Superintendent, to the mortgagee, and $19,205.98 has been left in reserve to pay taxes.

With this statement of our views we merely add that we agree, for the facts of this case, with the disposition of these funds. The $55,161.12 is a trust fund, now commingled with the company’s general funds, so possibly cannot be traced. A referee has been appointed to make the attempt, and if he succeeds even then the amount will be paid only in proportion as there are assets to pay other trust funds of like nature. The $19,205.98 is to be paid over as it has been segregated. As the mortgagee did not acquiesce in the company continuing as its agent even under the rehabilitation proceedings it should not be charged with the proportionate part of the expenses in carrying on the work of the company.

The order below should be affirmed, with costs.

The questions certified are answered: The second and fourth in the negative; all the rest in the affirmative.

Pound, Ch. J., Lehman, O’Brien, Hubbs, Crouch and Loughran, JJ., concur.

Order affirmed, etc. (See 265 N. Y. 287.)


text:
    In the Matter of the Application of The People of the State of New York, by George S. Van Schaick, as Superintendent of Insurance Appellant, for an Order to Take Possession of the Property of the New York Title and Mortgage Company. Central Hanover Bank and Trust Company, Respondent.

      (Argued June 8, 1934;
    decided July 3, 1934.)

      Lawrence S. Greenbaum, Jonas J. Shapiro, Theodore S. Jaffin and Benjamin Kaplan for appellant.

      Albert Stickney, John M. Perry and Francis S. Bensel for respondent.
   Crane, J.

Order of the Appellate Division and that of Special Term affirmed on the authority of the companion case (Matter of People [Lawyers Title & Guaranty Co.], 265 N. Y. 20). We agree' that the omission of the words until the breach or termination of this guaranty ” from the policy in question does not change the effect of the policy. The implication is as plain as if the words were used. The company agreed to pay the interest at the times specified and the insured agreed to give the company full control of the mortgage. When the company failed to do its part the mortgagee was almost of necessity required to assume the management and service of its property.

In the former case the assignment of rents occurred after the default in the payment of taxes. Here the assignment took place in 1931 and the taxes became due and remained unpaid in 1932. All of this time the company collected the rents and failed to pay the taxes. Its duties under the policy are explained in the opinion in the other case.

At the times when the New York Title and Mortgage Company reimbursed itself for the interest payments during the years 1931 and 1932 taxes were in arrears and unpaid upon the mortgaged premises. In fact penalties amounting to $7,238.38 had run up and were paid out of the rents by the company. As before stated, the company since 1931 took the rents; it should have paid the taxes before it reimbursed itself for interest money paid out on its contract. The balance over the taxes for the year, if any, it could keep for these interest payments, but it could never pay itself before the taxes were paid. The penalties were inexcusable if the company had received enough income to pay the taxes.

We understand the order below to have referred the accounting to determine what amounts are allowable to the company for taxes paid, less the penalties, if the company took the rents and failed to pay the taxes; also the amounts to allow the company out of the rents collected for reimbursement, when the rents collected exceeded all taxes due. In round figures I estimate that from the time of the assignment up to June 5, 1933, the taxes due were about $124,237, and interest charges $175,038. The net rent income to the said date was about $200,000; that is about $100,000 less than interest and taxes. As the company has paid the interest to the mortgagee up to June 5, 1933, it has reimbursed itself at the expense of the taxes. The guarantor did not have to pay the taxes by its policy of insurance; all it agreed to do was to enforce payment by proper proceedings. This it did when it took over the management of the property and collected the rents. As said beforé, taxes, the first hen, come first. Therefore, on the accounting the company must be held to have received in trust the moneys sufficient to have paid the taxes and water charges in full to June 5, 1933. As in this case, the rents received exceeded the taxes, the balance over and above the taxes paid when due should be allowed the company for its advanced interest, as stated in the opinion in the Lawyers Title '& Guaranty Co. case. If these moneys have been commingled, the same remedy will be followed. In other words, each case depends largely on its own facts.

With this reading of the order below, we affirm it, and answer the questions so far as possible. What we have here written applies up to the time the company breached its contract by failing to pay interest due June 5, 1933, unless it has paid taxes since.

The order should be affirmed, with costs.

The first, fourth, seventh, ninth, tenth, eleventh, twelfth, thirteenth, fourteenth, fifteenth questions certified are answered in the affirmative. “ Yes, provided all taxes were paid,” is the answer to the second, third, sixth and sixteenth questions. The fifth and eighth are answered in the negative.

Pound, Ch. J., Lehman, O’Brien, Hubbs, Crouch and Loughran, JJ., concur.

Order affirmed, etc. (See 265 N. Y. 287.)


author: Pound, Ch. J.

text:
    Norman C. Norman, Appellant, v. The Baltimore and Ohio Railroad Company, Respondent.

      (Argued June 1, 1934;
    decided July 3, 1934.)

      Emanuel Redfield and Dalton Dwyer for appellant.

      Frederick H. Wood, Carl A. de Gersdorff, H. F. McGuire and N. H. Josephs for respondent.
   Pound, Ch. J.

The point for decision in this case depends upon the constitutionality of the Joint Resolution of Congress known as Public Resolution No. 10 of the Seventy-third Congress, entitled “ Joint resolution to insure uniform value to the coins and currencies of the United States,” approved June 5, 1933 (Mason’s U. S. Code, tit. 31, ch. 8, § 430-4; 48 Stat. 112), as related to the standard gold clause contained in a corporate bond issued by defendant for payment of principal and interest in gold coin of the United States of America of or equal to the standard of weight and fineness existing on February 1, 1930.”

The action is on a bond coupon calling for payment of $22.50. The complaint demands payment in gold, or its .equivalent which was alleged to be $38.10. Judgment was directed for $22.50, called for on the face of the coupon.

Defendant interposed as a defense Public Resolution No. 10, above cited, by which it was authorized and required to discharge the principal and interest of such bond and coupon in any coin or currency of the United States which at the time was legal tender for public and private debts and not otherwise. The court refused to strike out such defense.

In view of the enormous property value at stake and of the possibility that Congress may stamp as legal tender such a vast quantity of paper money as potentially to destroy the value of all past promises to pay in the future, the decision of the Supreme Court of the United States on the question will be fraught with the gravest results. It is becoming that we should express our views on the question, even though the ultimate decision rests with the court of last resort on questions arising under the Federal Constitution.

No controlling authority may be found for the rule that the money power of Congress may make public currency legal tender for obligations expressly limited to payments in gold. (Cf. Matter of Missouri Pacific R. R. Co., U. S. Dist. Ct., Missouri, decided June 20, 1934, 7 Fed. Supp. 1.) The constitutionality of such legislation is sought to be found in the delegated powers of Congress and the implied powers deduced therefrom. We must reason from the Constitution and decided cases to reach our conclusion.

Congress has power “ to coin Money, regulate the Value thereof.” (U. S. Const. art. I, § 8, if 5.) It also has power to enact laws necessary to enforce the Constitution. (U. S. Const. art. I, § 8, if 18.) It -also has the power prohibited to the States (U. S. Const. art. I, § 10, if 1), to impair contracts by the exercise of its lawful powers. (Knox v. Lee, 12 Wall. [U. S.] 457.)

The contract sued on is payable in coin and not in commodities. (Trebilcock v. Wilson, 12 Wall. [U. S.] 687.) It is a contract to pay money, none the less because it designates gold coin rather than other kinds of money which the law has made a legal tender in discharge of money obligations. (Thompson v. Butler, 95 U. S. 694, 696, 697.)

The power to coin money and the general powers of sovereignty permit Congress to “ make the notes of the government a legal tender in payment of private debts * * * [as] ‘ necessary and proper for carrying into execution the powers vested by the constitution in the government of the United States.’ ” The question of the economic significance of the money power of Congress is a political one and not a judicial question to be passed upon by the courts. (Juilliard v. Greenman, 110 U. S. 421, 450.)

The rule seems well established that Congress may establish a uniform national currency, declare of what it shall consist, endow that currency and every unit thereof with the character and qualities of money having a defined legal value by requiring its acceptance at its face value, as legal tender in the discharge of all debts, whether preexisting or subsequently incurred, and to regulate the value of such money, unless by so doing property is or may be taken without due process of law.

It is contended that to subordinate the exercise of the Federal authority to the continuing operation of previous contracts would be to place, to this extent, the power to coin money and regulate its value in the hands of private individuals and thus to impair the sovereign power delegated to the national government. (Philadelphia, B. & W. R. R. Co. v. Shubert, 224 U. S. 603.)

Considerations of convenience are not without weight. All arrangements for payment in money in the future are necessarily under the paramount authority of the political sovereign delegated powers of Congress. The courts should not interfere with the economic policies adopted by Congress, if such powers are vested in that body. Those who would affirm the unconstitutionality of an act of Congress must do more than raise a doubt; they must do more than establish the unwisdom of the legislation; they must show clearly that it is in violation of the provisions of' the Constitution.

State courts should uphold the constitutionality of such acts of Congress whenever possible. If the gold clause in contracts is an interference with the ability of the government to accomplish legitimate results it may well be urged that Congress may remove such interference without regard to consequences. The choice of the means to accofnplish a lawful purpose is a matter for Congress as long as the means are fairly related to the end. The scope of the money power of Congress is so wide that this court will not, in the case presented, venture to invalidate the legislation directed to that end.

The judgment should be affirmed, with costs.

Crane, Lehman and Hubbs, JJ., concur; O’Brien, J., dissents and votes to reverse; Crouch and Loughran, JJ., not sitting.

Judgment affirmed.


author: O’Brien, J.

text:
    In the Matter of Wilaka Construction Co., Inc., Appellant, against George McAneny, as Comptroller of the City of New York, Respondent.
    (Argued May 22, 1934Í
    decided July 3, 1934.)

      Louis Rosenberg for appellant.

      Paul Windels, Corporation Counsel (Henry J. Shields and Paxton Blair of counsel), for respondent.
   O’Brien, J.

The Board of Education of the City of New York filed with the Comptroller its certificate authorizing and directing payment to appellant for work performed under a contract for the construction of a public school building. The Comptroller declined to pay the sum certified and retained certain moneys for the reason, that engineers in the finance department asserted that some defects existed in the work. No claim of fraud is made. In this proceeding to compel the Comptroller to issue a warrant for the sum certified, in which the Mayor has not been made a party, the remedy of mandamus has been refused on the law and not in the exercise of discretion.

The nature of the relation of the Board of Education to the city is different from that existing between the city and other departments of the municipal government. The method of audit and payment provided by section 149 of the Greater New York Charter (Laws of 1901, ch. 466, amd. L. 1917, ch. 401; L. 1923, ch. 667; Local Law, No. 20 of 1929) does not apply to it. (Gunnison v. Board of Education, 176 N. Y. 11, 17.) In the absence of illegality, fraud or manifest mathematical error, the audit of the Board of Education prevails. It is for the Board to determine whether in fact a contract with it has been performed. Unless some of these infirmities are present in the audit, the Comptroller is without authority to review it and he may be compelled by mandamus to countersign and pay on the Board’s voucher. Payments from moneys apportioned to the Board of Education must be made on its signature and the countersignature of the Comptroller. (Education Law, § 880, subd. 3; Cons. Laws, ch. 16; People ex rel. Wells & Newton Co. v. Craig, 232 N. Y. 125, 139; Matter of Brennan v. Board of Education, 245 N. Y. 8; Matter of Poucher v. Berry, 249 N. Y. 16; Matter of McNutt Co. v. Eckert, 257 N. Y. 100; Lewis v. Board of Education, 258 N. Y. 117, 120.) When the certificate is free from fraud, illegality or mathematical error, the countersignature of the Comptroller is a ministerial act and no signature by the Mayor is required to render the warrant valid. (Matter of Graybar Constr. Corp. v. Berry, 264 N. Y. 432.) The question whether a provision in the contract which purports to authorize the Comptroller to review the Board’s certificate, constitutes a waiver by the contractor was argued and decided adversely to the Comptroller’s contention in the Graybar Case (supra).

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

Pound, Ch. J., Crane, Hubbs, Crouch and Loughran, JJ., concur; Lehman, J., concurs in result.

Orders reversed, etc.


text:
    The People of the State of New York ex rel. Thomas C. Luther, Appellant, v. William McDermott et al., as Assessors of the Town of Stillwater, Respondents.
    (Argued May 21, 1934;
    decided July 3, 1934.)

      John A. Slade, Irving I. Goldsmith and Arthur H. Vinett for appellant.

      Robert Frazier and Sidney W. Hewitt for respondents.

      John J. Bennett, Jr., Attorney-General (Eric J. Lake of counsel), for State of New York, intervener.
   Crane, J.

We agree with the Appellate Division that section 13 (former section 16) of the Tax Law (Cons. Laws, ch. 60) is constitutional. We do not share its opinion regarding the relator’s application for the benefits of the act.

The law was passed for the purpose of encouraging the preservation of the forests and the devotion of land to reforestation. To induce owners to devote their property to this public and necessary purpose, instead of using it for farming, reduced taxation for a period of time was offered. This law reads in part as follows: “ In view of the benefits to the state and the political subdivisions thereof which will accrue through the reforestation of idle lands, upon compliance with the provisions of this section by the owner thereof, any tract of forest land of fifteen acres or upwards which has been planted with an average of not less than eight hundred trees per acre, or which has been underplanted with an average of not less than three hundred trees per acre, * * * shall be assessed separately, for purposes of taxation, upon the basis of the value of the land, exclusive of the value of such planted or underplanted trees, or natural reproduction and shall not be assessed at a higher valuation than similar lands without substantial forest growth situated in the same tax district, provided, however, that at no time shall the land be assessed at a higher valuation than that at which it was assessed at the time the application for classification is filed as hereinafter provided. * * * To secure such assessment the owner of such tract shall file with the assessors of the tax district in which the land is situated, an application in duplicate, for classification under this act upon a form to be furnished by the conservation department. * * * The conservation department is hereby authorized to approve or disapprove the application. * * * All lands so classified shall come under the provisions of this act and the owner, his successors or assigns, and the state and its political subdivisions shall be bound thereby. Such land shall be subject to assessment in the manner and amount herein-before provided and no other, and shall continue to be so assessed so long as the forest growth shall remain uncut. Upon the removal of the forest growth, such land shall be assessed without regard to the provisions of this section.” The relator was the owner of 3,845 acres of land in the town of Stillwater, Saratoga county, New York, which the assessors of the town for the year 1931 had assessed at the valuation of $7,702. For the year 1932 the assessors raised the valuation to $23,070. On July 16, 1932, the relator made application to have these lands classified as forested and reforested lands, pursuant to section 13 of the Tax Law, above quoted, and claims that they can be assessed at no higher valuation than that of the 1931 assessment. The courts have been called upon to determine what was the assessment of these acres at the date July 16, 1932; was the assessment that of 1931 or that of 1932 as finally fixed by the closing of the assessment books on September 6, 1932? The statute is clear in directing that one whose lands have been classified cannot be assessed at any higher valuation than the assessment existing at the time the application for classification is filed with the Conservation Department. This injunction in this case is not affected by the fact that the application was not approved until December 19, 1932, which merely put all the other provisions of the statute in force. What, therefore, was the assessment of July 16, 1932? (Sikora Realty Corp. v. City of New York, 262 N. Y. 312.)

The Tax Law, section 9, provides that “ real property shall be assessed as of July first in the tax district in which it is situated.” The courts below have taken this date as the time when the assessment for 1932 became effective. We think the Tax Law and the decisions under it do not lead to this conclusion. In People ex rel. Twenty-third St. R. R. Co. v. Comrs. of Taxes (91 N. Y. 593) this provision of the law was held to fix the taxable status of persons and property as of July first of each year. Such was also the holding in the prior case of Mygatt v. Washburn (15 N. Y. 316). The law in this particular has remained the same for many decades. The valuation, however, of the property thus fixed and determined in ownership and in location as of July first under the statute could not be finally determined until a later date. All information regarding value was gathered by the assessors prior to July first and thereafter tabulated, sifted and fixed as a valuation by not later than August first.

Section 20 of the Tax Law (prior to its amendment by Laws 1933, ch. 470) provided that the assessors in each tax district shall annually between January first and July first ascertain by diligent inquiry all the property and the names of all the persons taxable therein.

Section 36 (renumbered § 25, Laws 1933, ch. 470) requires the assessors to complete the assessment roll on or before the first day of August, and make out a copy thereof, to be left with one of their number, and forthwith cause a notice to be conspicuously posted in three or more public places in the tax district, stating that they have completed the assessment roll, and that a copy thereof has been left with one of then number at a specified place, where it may be seen and examined by any person 'until the third Tuesday of August next following and on that day they will meet at a time and place specified in the notice to review their assessments.

By sections 38 and 39 the assessors shall swear to the correctness of the assessment roll. The words of section 39 have some significance: “When the assessment roll shall have been thus finally completed and verified, and the copy thereof certified the assessors shall, on or before the fifteenth day of September, file the said certified copy in the office of the town clerk, to remain for public inspection until delivered by the town clerk to the supervisor of the town as hereinafter provided.” (See sections renumbered § 28, Laws 1933, ch. 470.)

The assessment is, therefore, not finally completed until the roll is subscribed by the oath of the assessors and delivered over to the clerk. These are not only the words of the statute, but we find this to be the interpretation given by the decisions. The court, in Rundell v. Lakey (40 N. Y. 513, 516), referring to these same provisions existing in previous tax laws, said: “ This roll constitutes the basis upon which the tax is imposed by the board of supervisors. After its completion and delivery, there is no power to alter or change it. It is conclusive as to the persons and property for apportioning the sums to be raised by taxation. * * * That the time when they [owners] so became liable, was the time of the completion and delivery of the roll, although the amount of the tax was not ascertained and fixed for some two months afterwards, yet the foundation of the liability was complete.” (See, also, People ex rel. Gillies v. Suffern, 68 N. Y. 321; Lewis v. Petersen, 241 N. Y. 268, p. 276; Lathers v. Keogh, 109 N. Y. 583; United States v. City of Buffalo, 54 Fed. Rep. [2d] 471.)

The procedure under the Tax Law is that July first of each year fixes the date at which status of the property and its ownership shall be taken for the purposes of assessment and taxation. There can be, however, no assessment until the officials act and give public notice, in accordance with the statute, of their determination. By the first of August the assessment is to be' fixed and notice given of grievance day, and by the fifteenth of September the roll is to be finally completed by the signatures and oaths of the assessors and delivery to the clerk. This procedure was followed in this case. On or about September 5, 1932, the assessors finally completed their assessment roll, according to their return; made and subscribed their oaths thereto; filed the same with the town clerk of the town of Stillwater and posted their notices in accordance with the law. Not until then was the assessment for 1932 complete.

We, therefore, find that on July sixteenth, when the relator made his application to classify his lands as forest lands, the property was not assessed and had not been assessed at $23,070. This did not come into existence, as we have said, until September fifth. The assessment on July 16, 1932, was the assessment of 1931, $7,702.

It may be well to state, in order to outline fully the relator’s position, that he appeared on grievance day before the assessors and sought a reduction in the proposed assessment for various reasons, including the rights growing out of his application to the Conservation Department. The assessors having denied the relief, an order of certiorari was applied for within a few days or weeks thereafter. It is this proceeding which is before us; the question and the determination of the assessors are being reviewed, pursuant to the provisions of section 290 of the Tax Law. No claim is made that the assessors or the authorities may not or will not reduce the assessment, should their determination be reversed.

The orders should be reversed, with costs in all courts, and the appellant’s assessment for 1932 reduced to $7,690.

Pound, Ch. J., Lehman, O’Brien, Hubbs, Crouch and Loughran, JJ., concur.

Ordered accordingly.