author: O’Brien, J. Crane, J. (dissenting).

text:
    Genaro Lafredo, Respondent, v. Bush Terminal Company, Appellant.

      (Argued March 2, 1933;
    decided April 11, 1933.)

      Chester Bordeau for appellant.
    There was no control by the landlord of the portions of the pier leased where the accident happened so as to make it hable in tort. (Schick v. Fleischhauer, 26 App. Div. 210; Ruches v. Ginsberg, 188 N. Y. 630; Cullings v. Goetz, 256 N. Y. 287.)

      Sidney L. Masoné for respondent.
    The condition of the pier constituting the negligence upon which the action is based long pre-existed the making of the lease and, therefore, the defendant is hable. (4 Cyc. of Law & Pr. pp. 918, 919.)
   O’Brien, J.

Defendant’s Pier 5 in Brooklyn is thirteen hundred feet in length and is divided into four transverse sections, of which C and D constitute the outshore end. Both these sections were leased to Wilhelm Wilhelmsen who took them for the benefit of the Wilhelmsen Line and the Baltic American Line. The lease covers all of sections C and D and, therefore, the leased premises necessarily include that part of the shed erected thereon. These companies employed the Steamship Terminal Operating Company to operate the two sections. The lease to Wilhelmsen provides that the lessee shall have the exclusive use ” of sections C and D but that defendant, upon reasonable notice by the lessee, shall keep and maintain the premises in repair. Defendant also covenants that it will maintain railroad tracks not only upon the demised premises but also along the entire length of the pier, so as to connect these premises with the railroad terminal bridge operated by defendant, and that it will operate the tracks and move the cars at its own risk and expense. The lease reserves to defendant the right to collect and retain wharfage on all canal boats, barges, lighters and other harbor craft while lying at the leased premises.

Plaintiff, an employee of the Steamship Terminal Operating Company, while engaged outside the shed near the stringpiece at the outer edge of the pier in loading cargo on one of the Baltic American Line’s vessels, was injured by the fall of a defective beam which had become insecure above the lintel of a doorway of the shed on the demised premises and which had been inserted there as a rain drip to prevent water falling upon the sill.' The distance between the doorway of the shed and the string-piece near the north edge of the pier is slightly more than two feet.

No questions relating to the unsafe condition of the rain drip or to contributory negligence survive. The record must be searched to ascertain the existence of evidence upon which can be predicated control of sections C and D by this defendant. Control by a landlord out of possession who has covenanted with his tenant to make repairs, must be such as implies something more than the right or liability to repair the premises. It implies the power and the right to admit people to the premises and to exclude people from them.” (Cullings v. Goetz, 256 N. Y. 287, 290.) In the trial of the case at bar, the jury was charged that, if there was no absolute control by defendant or if control was not shared by defendant in that part of the pier where the accident occurred, plaintiff could not recover.

In an endeavor to prove control of the leased premises by defendant, plaintiff called five witnesses who were defendant’s vice-president, its general superintendent, its superintendent of maintenance and two carpenters employed by defendant. From these witnesses was elicited the following uncontradicted evidence: A railroad extends through a passageway along the entire length of the pier. The cars on these rails were moved on orders from the lessee. This passageway extends uninclosed six hundred and fifty feet from the shore along the north side of the pier outside of and without passing through sections A and B until it reaches section C where a partition described as a solid bulkhead with a door or gate extends across the pier. Sections C and D are reached without passing inside sections A and B. This passageway and railroad continue for the remaining six hundred and fifty feet through sections C and D. Defendant assumed under its lease to keep the railroad and the passageway as well as every other part of the pier in repair. It had no employees on the pier except those who went there to make repairs, it employed no watchman there, did not operate any of the doors on the pier shed and berthed no boats there. Defendant’s single witness, the pier superintendent employed by the Steamship Terminal Operating Company which held a contract with the Wilhelmsen Line and the Baltic American Line for operating sections C and D, agreed with the foregoing testimony of plaintiff’s witnesses and gave additional uncontradicted testimony. He had full supervision of sections C and D and of the loading, discharge, receipt and delivery of cargoes. He designated the berths for all vessels and he alone designated when and where railroad cars should be spotted. No one else ever did these things. On one occasion he exerted his authority and prevented this defendant from loading and operating cars for its own use. Only such trucks, including trucks owned by defendant, as went upon the pier for the purpose of transporting cargo of consignors and consignees shipped from and landed at sections C and D, were allowed to pass the gate from the outside passage into section C which was guarded by a watchman employed by the superintendent of the lessee’s operating company. No one except him and the watchman had keys to this gate. He controlled its locking and unfastening and designated the persons who were allowed in sections C and D, and had complete supervision over everything pertaining to the management of the pier. The testimony of this witness is not disputed but, assuming that the jury rejected his credibility, the case stands without any evidence produced by plaintiff tending to show even partial control of these sections of the pier by defendant.

This part of the pier was private and it was not let for the purpose of being used as a public place. It was, on the contrary, demised for the “ exclusive use ” of the lessee and the general public was excluded. Admission past the gate was limited to those whom the lessee’s’watchman knew to be present on the transaction of business relating to the shipment or receipt of cargo on specified vessels and defendant’s servants who went to make repairs. The unsafe appurtenance of the shed which injured plaintiff was not situated on a common way used by other tenants of the pier but was in a location separated therefrom by a bulkhead and a gate. That part of the railroad penetrating into sections C and D and wholly separated from the inshore sections of the pier was operated by defendant under the direction of and solely for the benefit of the lessee and was under the lessee’s control. That is the obvious purpose of the covenant. The reservation of the right to collect and retain such wharfage as might accrue from canal boats, barges, lighters and other craft temporarily tieing up at this pier does not make the premises public. This provision in the lease merely declares that the fees, if any, which might be paid by small craft occasionally seeking shelter, as they have the lawful right to do at every private as well as public dock or pier in the harbor (Greater New York Charter, §§ 859, 863, 865, 867; Laws of 1901, ch. 466), shall belong to the landlord and not to the tenant. Moreover there is no proof that any such craft ever tied up at this pier. So even if defendant had constructive notice of a defect existing when the lessee took possession of these premises for its private use, the decisions create an exemption from liability. (Campbell v. Holding Co., 251 N. Y. 446, 448; Kilmer v. White, 254 N. Y. 64, 69.) There is no evidence in the case except such as shows that the lessee’s possession and dominion were exclusive and complete.” (Cullings v. Goetz, supra.)

The judgment of the Appellate Division and that of the Trial Term should be reversed and a new trial granted, with costs to abide the event.

Crane, J. (dissenting).

The Bush Terminal Company has a large warehouse plant covering blocks of territory on the. shore front of Brooklyn, fronting the lower bay of New York. It has one hundred and twenty-one warehouses, eighteen piers, sixteen factory and loft buildings. The loft buildings have six million square feet of loft space, and their warehouses two and a half million. The Bush Terminal Company is primarily in the warehouse business, and the maintenance of the railroads running along the streets and onto the piers and into the loft buildings is all incidental to the warehouse business (fol. 284). The piers run out into the bay thirteen hundred feet •— a quarter of a mile, and one hundred and fifty feet wide (fol. 243).

The pier in question when this accident happened, had a railroad running down its entire length connecting with the warehouses and also a passageway for trucks running down the northerly side of it. The sheds on the outer end of the pier in the sections known as C and D do not cover the entire pier crosswise as there is some distance between the outer wall of the shed and the edge or stringpiece of the pier. The door or doorway of the shed is back' from the edge of the pier or stringpiece over two feet two inches from the stringpiece (fol. 67).

Mr. Blackiston, vice-president of Bush Terminal Company, testified regarding the runway: "You might call it a runway or an apron, not enclosed, and runs about 650 feet from the bulkhead line directly out toward the pierhead line of the pier, and that is a runway there which trucks can use to get to the outer end of the pier; otherwise the outer end tenant would have no way of getting ashore with his merchandise. * * * That runway goes through a door into sections C and D, the outer end of the pier.

" Q. And that runway is maintained by your company? A. We maintain that together with the whole pier, so far as general maintenance is concerned.

" Q. And do you use it for the movement of freight for yourselves? A. A shipper turns over business to us and we go out on the pier and get it and load it and bring it in, the same as any other truckman would bring his goods from the pier to the warehouse.”

The Bush Terminal Company had leased the end of the pier compartments, known as C and D, to one Wilhelm Wilhelmsen; but that the lessor had retained control over a large part of the pier, including the railroad track, the runway and all the rest of the outer portions of the pier and buildings — in fact all of the pier — for the purpose of maintenance and repair, is beyond question to my mind, by reason of the testimony of its own employees and officers as hereafter quoted. The question in this case submitted to the jury was whether the Bush- Terminal Company had retained possession and control over the pier for the purpose of making repairs, and whether this is a duty which it had assumed and a control which it had retained.

The accident happened in this fashion. A ship was alongside the pier into which stevedores were loading drums of gasoline. They were hoisted by means of a derrick on board the ship. A skid or inclined plane ran from the dock up the side of the ship and the drums were hauled up the skid. The purpose of the skid was to prevent drums striking the ship. The plaintiff stood on the dock outside the shed beyond the doorway of the ship guiding the drums up the skid. A man stood on the rail of the ship giving directions to the winchmen when to lower and raise. Over the doorway of the shed was a heavy piece of timber used as a raindrip. It was sixteen feet long, about twenty inches wide and about eight inches thick. It had been loose for some time, for months. The nails were rotten and it had broken away an inch or two from the shed. This fell on the plaintiff’s head and injured him. It was like the falling of the cornice off the outside of a building and striking a person on the street, or the falling of a ceiling in the hallway of an apartment house upon a truckman carrying goods out of an apartment. The plaintiff was not the employee of the lessee or the lessor; he was a stevedore standing on a dock outside of the leased sheds, struck by a cornice or a raindrip falling off the shed.

Whose duty was it to make these repairs? We are told by the employees and officers of the Bush Terminal Company, and surely they should know. Ward L. Sturges was the general superintendent of the Bush Terminal Company. The following questions and answers were brought out by the attorney for the defendant. Sturges had been called by the plaintiff and was. ■under cross-examination by the attorney for the Bush Terminal Company, and gave the following answers (fol. 280):

“ Q. Mr. Sturges, who makes repairs to damage portions of sections C and D, pier 5, and who made repairs immediately preceding March 20, 1927? A. Why, the Bush Terminal Company.
Q. And that was under your direction and control at that time? A. Yes.
“ Q. If you noticed something out of repair would you proceed to repair it or wait? A. We certainly would, yes.
“ Q. You would proceed to repair it? A. Yes. I occasionally walk around the plant. I have no special time.
Q. And of course, if you saw anything out of repair —■ A. We would fix it.”

Gustav A. Anderson, the superintendent of construction and maintenance of the Bush Terminal, testified that he regularly inspected these two sections, C and D, of Pier 5 for the purpose of determining whether there was any disrepair (fol. 380); and at folio 383 gave these answers:

“ Q. When you think anything is to be done you go out there and do it, don’t you? A. Yes.
Q. And how many men have you under you who make repairs to that pier? A. About fourteen men, carpenters and dock builders, and so on.
Q. Can you go about on that pier, at the end of it, in sections known as C and D, whenever you want to and whenever your men want to? A. Oh, I guess we can, yes.
Q. And you have done it all the time? A. Yes.
Q. What kind of repairs do you make? A. Well, in case anything would be loose or falling, or anything like that, and we see it, we are told to do such repair.
“ By the Court:
“ Q. Do you wish this jury to understand that where you saw, as you testified, things loose or falling that you made repairs without instructions? A. Yes.
Q. Without any instructions? A. Without any instructions. We repair them things. If we see anything loose or falling we are ready to repair that at our own risk, as we see it. When we are going through the premises there we always look if there is anything necessary to be repaired. If we see anything like that that is off, we will repair it without any question.”

As to this particular raindrip which fell the witness testified: We have went over there, and nailed them, because we have been nailing them over and always look after them. We have inspection and always try and look after them^’(fol. 401).

Here is ample evidence to show the custom and the practice pursued by the Bush Terminal Company in leasing out the various sections or compartments on its vast acreage of piers at its enormous warehouse plant. It kept and retained general supervision over the entire plant and all the piers. It employed a staff of mechanics under a general superintendent of construction to inspect all the piers and sheds and make repairs. It did make repairs on the very raindrips in question. It retained control of the piers for its railways and driveways. It not only assumed the duty of making repairs and retained control for this purpose, but its own officers and employees testified that they actually made these repairs without consultation, without the consent of the tenant lessee. The trial justice properly left it to the jury to say whether the falling of this raindrip upon the plaintiff was due to the negligence and carelessness of the defendant’s employees, and whether or not it had and assumed the duty of making the repairs by reason of the control which it had retained. How can we say that there was no evidence to show that the duty of repair was upon the defendant, when defendant’s officers and employees admit that it was, and that they undertook to make repairs upon this very raindrip?

I think the judgment for the plaintiff should be affirmed.

Pound, Ch. J., Lehman, Kellogg and Crouch, JJ., concur with O’Brien, J.; Crane, J., dissents in opinion; Hubíbs, J., not voting.

Judgments reversed, etc.


source: Caselaw Access Project

author: Pound, Ch. J.

license: Public Domain

text:
    Thomas E. Gleason, as Administrator of the Estate of Elizabeth Gleason, Deceased, Respondent, v. Central New England Railway Company, Appellant.
    (Argued March 13, 1933;
    decided April 11, 1933.)

      E. R. Brumley and John M. Gibbons for appellant.
    Defendant violated no duty owed to plaintiff's intestate. (Railroad Law [Cons. Laws, ch. 49], § 83; Penal Law, § 1990; Town of Leray v. N. Y. C. R. R. Co., 226 N. Y. 109; Keller v. Erie R. R. Co., 183 N. Y. 67; Marra v. N. Y. C. & H. R. R. R. Co., 139 App. Div. 707; Butler v. N. Y. C. & H. R. R. R. Co., 152 Fed. Rep. 976; Capitula v. N. Y. C. R. R. Co., 200 App. Div. 247; Sutton v. N. Y. C. & H. R. R. R. Co., 66 N. Y. 243; Smetanka v. N. Y. C. & H. R. R. R. Co., 123 App. Div. 323; Walsh v. F. R. R. Co., 145 N. Y. 301; Cower v. Hines, 208 App. Div. 263; Weitzmann v. Barber Asphalt Co., 190 N. Y. 452; Fox v. Warner-Quinlan Asphalt Co., 204 N. Y. 240; Heskell v. Auburn L., H. & P. Co., 209 N. Y. 86; Connell v. N. Y. C. & H. R. R. R. Co., 213 N. Y. 352; Vaughan v. Transit Development Co., 222 N. Y. 79.)

      John E. Mack for respondent.
    The defendant owed to the plaintiff and the members of his family the duty of using reasonable care. (Palmer v. Palmer, 150 N. Y. 139; Ogden v. Jennings, 62 N. Y. 531; McDermott v. N. Y. C. & H. R. R. R. Co., 28 Hun, 325; 97 N. Y. 654; Swift v. Staten Island R. R. Co., 123"N. Y. 645; Barry v. N. Y. C. & H. R. R. R. Co., 92 N. Y. 289; Byrne v. N. Y. C. & H. R. R. R. Co., 104 N. Y. 362; Best v. N. Y. C. & H. R. R. R. Co., 117 App. Div. 739; Lamphear v. N. Y. C. & H. R. R. R. Co., 194 N. Y. 172; McCarthy v. N. Y. C. & H. R. R. R. Co., 73 App. Div. 34.)
   Pound, Ch. J.

The plaintiff administrator was for many years an employee of defendant. Deceased was his wife. Eleven or twelve years before the accident he leased certain premises for a dwelling from defendant. The property was located in a triangle between two sets of tracks owned by it. The apex of the triangle points west. On the east it is bounded by property of a third person. The claim of the plaintiff is that, since there was no access to the property except over the lands of strangers, there was an implied way of necessity along the defendant’s tracks and right of way to a point about 3.800 feet west of the property where there was a means of reaching streets which led to Poughkeepsie. There is evidence which warranted the jury in finding that for all of those years the plaintiff and his wife and children were using the right of way on foot for that distance of 3.800 feet with the knowledge of defendant and without objection from'it.

The wife, while returning from Poughkeepsie and walking over that stretch of track, was run down and killed by a locomotive. The locomotive was backing up and had no light on the forward moving end. If deceased was as matter of law a trespasser the judgment below must be reversed.

The contention of the defendant is that under section 83 of the Railroad Law (Cons. Laws, ch. 49) and section 1990, subdivision 4, of the Penal Law, decedent was a trespasser and as there is no proof that the engineer was wanton and reckless in the operation of his engine, the plaintiff cannot recover. (Keller v. Erie R. R. Co., 183 N. Y. 67; Jerzewski v. Erie R. R. Co., 215 App. Div. 748; affd., without opinion, 242 N. Y. 592.) These cases go so far as to hold that a railroad cannot by contract, express or implied, or by invitation or by acquiescence, give a person, not in its employ, going on its right of way any rights beyond those of a mere trespasser.

The decisions rest on the rule that it was not within the power of the defendant to permit, or to suffer, persons, not in its employment, to walk upon and along its tracks at a place where there was no highway and but an intersection of railroad tracks, and that no length of acquiescence in their doing so, under the circumstances of this case, could create a right of user, by license, or by sufferance. This ought to be clear from section 53 of the Railroad Law (Laws of 1892, ch. 676), which was intended to protect the traveling public, as well as the railroad companies. It reads that ' no person other than those connected with or employed upon the railroad shall walk upon or along its track or tracks, except where the same shall be laid across or along streets or highways, in which case he shall not walk upon the track unless necessary to cross the same.’ It is not easy, if at all possible, to see how any right, as by license, could be acquired through acquiescence to do something which was so clearly in violation of the statutory inhibition. An act expressly prohibited by the public statute is, in its inception and always must continue to be, unlawful. The defendant’s powers and capacity to act are defined and controlled by statute law and, as a creature of statute, it could, neither expressly, nor passively, confer a right which the statute denies. Whoever walks upon, or along, the tracks of a railroad, except when necessary to cross the same upon some street, highway, or public place, violates the law and is like a trespasser, and the company’s servants are under no other obligation than to refrain from wilfully, or recklessly, injuring him.” (Keller v. Erie R. R. Co., supra, pp. 71, 72.)

The application of the rule to this case seems harsh. The deceased woman’s husband was an employee of the railroad. His right to use the tracks as a right of way to his home was not prohibited by the statute. Incidental to his own use, it must have been expected that his wife and children would use the tracks as they did as a way to and from the leased property. Yet the Keller case says that the railroad was without power ” to consent to such use and, therefore, its consent was a nullity.

In the Keller case the use was by the public. The decision was as to the public right acquired by user. Here we have a mere private use by necessity but no distinction can be drawn on that basis for the statute says no person.”

It may seem that the defendant, having acquiesced in the use of its tracks, ought not to defeat recovery by pleading its lack of power to permit such use; that the company ought not to be relieved from liability for negligently running over a woman who had walked on its tracks with its consent for many years. That was the view taken by Judge Vann in his dissenting opinion in the Keller case. Yet the court holds that the status of deceased as a trespasser was imposed upon her by law. The Keller case has been carefully considered and followed. (See dissenting opinion of Crouch, J., in the Appellate Division in Jerzewski v. Erie R. R. Co. supra.) We feel that we are bound by it.

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

Crane, Lehman, Kellogg, O’Brien and Crouch, JJ., concur; Hubbs, J., not voting.

Judgments reversed, etc.


author: Crane, J.

text:
    In the Matter of the Probate of the Will of Henry Reimers, Deceased. Fred Antusch et al., Appellants; Edna L. Weigelt, Respondent.

      (Argued March 9, 1933;
    decided April 11, 1933.)

      Stanley C. Fowler, Herman B. Forman and Richard A. Geis for appellants.
    The contesting executors, having actually and in good faith initiated the proceeding, were, although unsuccessful, entitled to necessary disbursements made and expenses incurred and the Appellate Division erred in striking these items from the probate decree. (Surr. Ct. Act, § 278; Matter of Staiger, 249 N. Y. 229.)

      Arthur T. O’Leary and Stanley C. Simmons for respondent.
    The Appellate Division correctly modified the decree by striking therefrom the allowance of disbursements and expenses. (Matter of Town of Hempstead, 36 App. Div. 321; Cassidy v. McFarland, 139 N. Y. 201; Dodd v. Anderson, 197 N. Y. 466; Matter of Waldron, 74 Mise. Rep. 310; Matter of Pinkney, 117 Mise. Rep. 262.)
   Crane, J.

The court decided in Dodd v. Anderson (197 N. Y. 466) that an executor named in a purported will was not entitled to his disbursements where the will offered by him was refused probate. This decision reversed the reasoning of the lower courts in the same case (112 N. Y. Supp. 414; 131 App. Div. 224). Where the will had first been admitted to probate, but subsequently probate was refused and the will rejected, this court had said that the executor was entitled to his disbursements. (Shaffer v. Bacon, 35 App. Div. 248; affd., 161 N. Y. 635.)

This anomalous condition of the law was immediately rectified by the Legislature in an amendment to the statute (Code Civ. Pro. § 2746; Surr. Ct. Act, § 278). (Matter of Staiger, 249 N. Y. 229.) The purpose of this amendment was to recognize the duty resting upon an executor named in a will to take diligent and active steps to procure its probate and to protect it from attack from any source. To enable him effectually to perform this duty, the amendment allowed him, in the discretion of the Surrogate, not only statutory costs, but all necessary disbursements and expenses incurred in the attempt to sustain the will, whether he succeeded or not. Innumerable are the grounds upon which the paper purporting to be the last will and testament of a deceased may be attacked. We are familiar with the many cases involving forgery, undue influence, insanity, failure to execute and publish as'required by statute, or the production of another instrument purporting to be a later will. In all these instances, even including the last, the duty of an executor is to appear and protect the will wherein he is named. And this duty is the same, whether the executor be the proponent or the contestant; in fact, he only becomes the contestant when there be a rival will.

In this case there were two wills, one dated October 11, 1923, and the other November 23, 1928. In the first will, the appellants, Fred Antusch and John Bahrenburg, were named as executors. Upon the death of the testator, Henry Reimers, November 27, 1930, they immediately offered the will for probate and issued all necessary citations. Later, and on December 15, 1930, the second will was offered for probate, wherein Edna L. Weigelt, a grandniece, was named executrix. The contest revolved around the execution of the second will, and we have three volumes of testimony bearing upon the family relationships, the circumstances under which the first will was executed, and the alleged undue influence, by which it was revoked, through the execution of the second will. Whatever form the contest took, the object in view was to ascertain the last will of Henry Reimers. Having been named as executors in the will of October 11, 1923, first offered for probate, it was the duty of Antusch and Bahrenburg to make all reasonable efforts to establish and maintain it. The law does not contemplate that an executor in a will shall become merely a nominal contestant on the production of a later will which may be void for many reasons. In fact, the burden of expense and disbursement may become more necessary with the production of another will than if the original will went through probate without contest.

The Surrogate allowed these unsuccessful executors costs, disbursements and counsel fee. The Appellate Division struck out the disbursements and counsel fee as not being within the provisions of section 278 of the Surrogate’s Court Act. This we think is too narrow a view to take of that liberalizing provision. The section reads: “ When the decree is made upon a contested application for probate of a will, costs, payable out of the estate or otherwise, shall not be awarded to an unsuccessful contestant of the will, unless he is a special guardian for an infant or incompetent, appointed by the surrogate, or is named as an executor in a paper propounded by him in good faith as the last will of the decedent; but where a person named as the executor in a will propounds the will for probate, such person so named as executor may, whether successful or not, in the discretion of the surrogate, be awarded, costs and all necessary disbursements made by him and all expenses incurred in the attempt to sustain the will.”

The Appellate Division construed this section to mean that the statutory costs only were to be awarded to the unsuccessful executor, when, because of a later will, he became a contestant, and that his disbursements and expenses could only be given when he was a proponent, which, of course, would be confined to cases where there was no later will. We read this section as meaning that costs shall not be awarded to an unsuccessful contestant unless he is named as an executor in a paper propounded by him in good faith as the last will of the decedent, in which case, such person, so named, whether successful or not, in the discretion of the Surrogate, may be awarded, not only costs, but necessary disbursements and all expenses incurred in the attempt to sustain the will.

This court stated in Matter of Lasak (131 N. Y. 624, 626), regarding probate proceedings, the following: “After the petition was filed with the surrogate and the proper parties had been cited and were before him, he had jurisdiction of the subject-matter and of the parties. It was a proceeding in rem to prove the will. All the parties could become actors therein. * * .* After the proceeding is once instituted, and the parties cited are before the surrogate, it is not solely the proceeding of the proponent. It is a proceeding in behalf of all the parties interested to prove the will.”

In affirming Matter of Devine (229 App. Div. 809; 255 N. Y. 634) we did not hold that the Surrogate as a matter of discretion could not give an unsuccessful executor •disbursements and expenses incurred in contesting the probate of a later will. The Appellate Division in that case held that the Surrogate had not properly exercised his discretion in denying costs, and we affirmed the ruling. In the case now before us, the Surrogate, in the exercise of his discretion, has allowed the disbursements and counsel fee. His power so to do was not involved in the Devine case. These items the Appellate Division, as matter of law, has stricken out, on the ground that section 278 of the Surrogate’s Court Act does not allow them. This we think was error.

The order of the Appellate Division should be modified in so far as it modified the decree of the Surrogate’s Court by striking out the disbursements and counsel fee awarded to the executors named in the prior will, and the decree of the Surrogate affirmed. As thus modified, the order of the Appellate Division should be affirmed, with costs in this court to all parties filing briefs, payable out of the estate.

Pound, Ch. J., Lehman, Kellogg, O’Brien and Crouch, JJ., concur; Hubbs, J., not sitting.

Ordered accordingly.


author: O’Brien, J.

text:
    The Peoples National Bank and Trust Company of White Plains, Appellant, v. County of Westchester et al., Respondents.
    (Argued March 8, 1933;
    decided April 11, 1933.)

      Otto C. Jaeger for appellant.
    The sections of the Tax Law (Cons. Laws, ch. 60) of the State of New York under which the taxes herein sought to be recovered were assessed, levied and collected, have been declared invalid and void. (Public Nat. Bank v. Keating, 38 Fed. Rep. [2d] 279; 47 Fed. Rep. [2d] 561; 284 TJ. S. 587; People ex rel. Pratt v. Goldfogle, 242 N. Y. 277; Texas & New Orleans B. B. Co. v. Brotherhood of Clerks, 281 TJ. S. 548; First Nat. Bank v. Hartford, 273 TJ. S. 548; Minnesota v. First Nat. Bank, 273 TJ. S. 561; Georgetown Nat. Bank v. MacFarland, 273 TJ. S. 568; Montana Nat. Bank v. Yellowstone County, 276 TJ. S. 499; Mason v. Prendergast, 120 N. Y. 536; Hanover Nat. Bank v. Goldfogle, 234 N. Y. 345.)'

      Martin Saxe for Charles J. Tobin, amicus curice.

    The condition oí section 5219 of the United States Revised Statutes, as amended, was not complied with in the State statute as construed and the provision taxing shares of national banks was, therefore, unconstitutional as taxing a Federal agency without the consent of Congress. (People ex rel. Pratt v. Goldfogle, 242 N. Y. 277, People ex rel. First Nat. Bank v. Schadt, 237 App. Div. 233; Public Nat. Bank v. Keating, 284 U. S. 587; First Nat. Bank v. Hartford, 273 U. S. 548; Minnesota v. First Nat. Bank, 273 U. S. 561; Commercial Nat. Bank v. Custer County, 275 U. S. 502; Montana Nat. Bank v. Yellowstone County, 276 U. S. 499.)

      William D. Cunningham and John J. Dillon for George M. Freedman, amicus curice.

    The sections of the Tax Law under which the tax was assessed have been declared invalid for all purposes. (Public Nat. Bank v. Keating, 38 Fed. Rep. [2d] 279; 47 Fed. Rep. [2d] 561; 284 U. S. 587¡First Nat. Bank v. Anderson, 269 U. S. 341; Matter

      of Pell, 171 N. Y. 48; Matter of Long Island R. R. Co. v. Hylan, 240 N. Y. 199; People ex rel. Phillips v. Raynes, 136 App. Div. 417; 198 N. Y. 539.)

      William, A. Davidson for County of Westchester, respondent.
    Plaintiff cannot recover without proof of facts showing actual discrimination in the same locality in which it does business. (People ex rel. Pratt v. Goldfogle, 242 N. Y. 277; First Nat. Bank v. City of Hartford, 273 U. S. 548; Minnesota v. First Nat. Bank, 273 U. S. 561; Georgetown Nat. Bank v. MacFarland, 273 N. Y. 568; Whitbeck v. Mercantile Bank, 127 U. S. 193.) The assessment, if improper for any reason, was an erroneous assessment to be determined from facts dehors the record. ( United States Trust Co. v. Mayor, 77 Hun, 182; National Bank v. Elmira, 53 N. Y. 49.)

      William R. Condit, Corporation Counsel (Samuel Faile of counsel), for City of White Plains, respondent.
    Summary judgment should not have been granted plaintiff, as there are issues of facts raised by the pleadings. First Nat. Bank v. Hartford, 273 U. S. 548; Minnesota v. First Nat. Bank, 273 U. S. 561; Georgetown Nat. Bank v. MacFarland, 273 U. S. 568.)

      Truman H. Preston and Victor Levine for County of Onondaga, amicus curice.

   O’Brien, J.

The action is for money had and received. Recovery is sought upon the asserted principle that the taxing statute of this State under which the moneys were paid has been declared void in Keating v. Public Nat. Bank (284 U. S. 587). On plaintiff’s motion the Special Term agreed that the statute had been declared void, and it struck out the answers of both defendants and directed summary judgment for plaintiff. On the theory that the statute is valid but that an issue of fact arises on the pleadings in relation to the validity of the tax depending upon the method of the exercise of power by the assessors, the Appellate Division reversed and certified to this court the question whether on this record plaintiff is entitled to summary judgment.

The complaint alleges that during the years 1925 and 1926 the assessors of the city of White Plains and the board of supervisors of Westchester county assessed the shares of capital stock of plaintiff national bank; that the assessments were apparently valid on their face but in fact were illegal and void for the reason that, contrary to the provisions of section 5219 of the Revised Statutes of the United States and also of section 24 of the Tax Law (Cons. Laws, ch. 60) of this State, which the Supreme Court of the United States is alleged to have later declared unconstitutional, they were at a greater rate than the assessments upon other moneyed capital in the hands of individual citizens; that plaintiff, in the belief that the assessments were valid, paid the taxes under duress and afterward demanded their refund and served notices of intention to sue for their recovery. The allegation that the assessments were in fact actually illegal and void and the kindred allegation of fact that they were at a greater rate than assessments upon other moneyed capital in the hands of individual citizens of this State are denied in the answers. Unless the fact of such a discrimination in favor of moneyed capital competing with plaintiff clearly appears from the pleadings and affidavits, plaintiff is not entitled to summary judgment.

The right of the several States to tax shares of national bank stock is derived exclusively from the consent of Congress. Except for such approval, no authority would exist, and the exercise of this power must conform with the conditions of the Federal permission. (First Nat. Bank v. Anderson, 269 U. S. 341, 347.) At the time of the assessments under review, section 5219 of the Revised Statutes of the United States provided that in the case of a tax on national bank shares the tax imposed shall not be at a greater rate than is assessed upon other moneyed capital in the hands of individual citizens of such state coming into competition with the business of national banks.” In People ex rel. Pratt v. Goldfogle (242 N. Y. 277) and a group of other decisions rendered at the same term this court recognized the necessity of conformity by the local tax statutes with the act of Congress and held that the purpose of chapter 897 of the Laws of 1923, which added new sections to the Tax Law relative to taxation of national bank shares, is to subject private moneyed capital which is used in competition with the business of national banks to the same rate of taxation as is imposed upon the shares of national bank stock. The controlling decisions of the Supreme Court of the United States also hold that approximate equality of taxation is required by section 6219 between the capitalization of national banks and private capital competing in the same kind of transactions as those in which national banks engage in the same locality. In ascertaining inequality and competition, questions of fact are involved. (First Nat. Bank v. Hartford, 273 U. S. 548; Minnesota v. First Nat. Bank, 273 U. S. 561; Georgetown Nat. Bank v. McFarland, 273 U. S. 568.) In Public Nat. Bank v. Keating (38 Fed. Rep. [2d] 279; 47 Fed. Rep. [2d] 561) both the United States District Court and the Circuit Court of Appeals found upon the facts that inequality and discrimination existed in the taxation of that bank’s shares. Those courts also were of opinion that the interpretation of the New York statute by this court in the Pratt case placed the local act in conflict with the act of Congress. The Supreme Court affirmed the decree (284 U. S. 587). That the facts were affirmed and the tax declared invalid is certain. We draw this inference from the character of the precedents cited by the court in support of its affirmance of the decree. Whether it proceeded further is not disclosed by the report.

Since the determination of the validity of the tax raises questions both of fact and law (First Nat. Bank v. Hartford, supra) these mixed questions can be decided only by first discovering the facts. In Public Nat. Bank v. Keating (supra) the evidence showed that other moneyed capital in the hands of individual citizens of this State which in fact competed with the Public National Bank was assessed at a lower rate than the shares of the Public National Bank. The pleadings and affidavits herein do not concede competition or discrimination. “It is claimed that inconsistency of the state statutes with section 5219 may be established without proving the fact that the plaintiffs were actually competing, during 1930, in some line of business in which the non-banking corporations were engaged. The trial court, in rendering judgment for the plaintiffs, approved this contention. But it is unfounded. To establish the invalidity, it is necessary to prove not only that the plaintiffs were empowered by law and authorized by their stockholders to engage in a competitive fine of business, but that, during the tax year, moneys of these national banks were in fact employed in substantial amount in some line of business which was carried on, during the year, by less heavily taxed non-banking concerns.” (First Nat. Bank v. Louisiana Tax Comm., 289 U. S. 60.)

On the record before us comparison between assessments on this bank’s shares and those on other moneyed capital in the hands of individual citizens of this State competing with this bank is not available. If assessments have been made at different rates, the fact has not been shown. Discrimination must be proved and it can be proved only by production of evidence on a trial or by concession. Since an issue of fact is present, plaintiff is not entitled to summary judgment.

The order should be affirmed, with costs, and the question certified answered, “ No.”

Pound, Ch. J., Crane, Kellogg and Crouch, JJ., concur; Lehman, J., dissents; Hubbs, J., not sitting.

Order affirmed, etc.


text:
    Albert E. Storr, Respondent, v. The New York Central Railroad Company, Appellant.
    (Argued March 9, 1933;
    decided April 11, 1933.)

      Natalie F. Couch, Orville H. Mann and Mortimer B. Patterson for appellant.
    In applying the doctrine of last clear chance the court in his charge to the jury assumed that the engineer was under an absolute duty to discover persons and objects upon the tracks and that after such discovery he was under an absolute and unqualified duty to stop his train. {W oloszynowski v. N. Y. G. R. R. Co., 254 N. Y. 206; Fierro v. N. Y. C. R. R. Co., 256 N. Y. 446; Wright v. Union Ry. Co., 224 App. Div. 55; 250 N. Y. 526; Kretik v. N. Y. C. R. R. Co., 227 N. Y. 474; 228 N. Y. 611; Bragg v. Central New England Ry. Co., 228 N. Y. 54; O’Brien v. Erie R. R. Co., 210 N. Y. 96; Chrystal v. Troy & Boston R. R. Co., 105 N. Y. 164; Rider v. Syracuse Rapid Transit Ry. Co., 171 N. Y. 139.)

      Alton W. Teale and Morton Lexow for respondent.
    Defendant indicates no error in the record relating to the last clear chance doctrine. {Spooner v. D., L. & W. R. R. Co., 115 N. Y. 22; Morris v. Lake Shore Ry. Co., 148 N. Y. 182; Doyle v. Penn. & N. Y. R. R. Co., 139 N. Y. 637; Harty v. Central R. R. of N. J., 42 N. Y. 468; Barry v. N. Y. C. & H. R. R. R. Co., 92 N. Y. 289; McWilliams v. Mo. Pacific R. R. Co., 172 Mo. App. 318; Chesapeake R. R. Co. v. Borden, 202 Ky. 348; Gundry v. Atchison R. R. Co., 286 Pac. Rep. 718; Waldron v. Boston R. R. Co., 71 N. H. 362; Director General of Railroads v. Blue, 134 Va. 366; N. Y., N. H. & H. R. R. Co. v. Kmetz, 193 Fed. Rep. 603; Spooner v. D., L. & W. R. R. Co., 1 N. Y. St. Repr. 558; 115 N. Y. 22.)
   Pound, Ch. J.

The action is brought to recover the value of an Omsteel platform trailer and Brockway truck which were struck by defendant’s locomotive while they were stalled on a public highway grade crossing at Orange-burg, New York, about four o’clock in the morning.

The plaintiff relied on two claims of negligence on the part of the defendant:

First, negligence in the maintenance of the crossing which caused the truck to stall on the tracks; secondly, negligence of the engineer in the operation of the train in not seeing the stalled truck and the warning signals of danger given by the plaintiff. These two claims were submitted to the jury together with the question of plaintiff’s contributory negligence.

At the close of the charge the following occurred: Mr. Patterson: I also ask your Honor to charge if the jury find that the plaintiff was negligent in driving upon the track as he did, knowing the length of his trailer and the drop in the road to the east, and knowing the weight of his trailer, he is charged with the results thereof and there can be no recovery.

“ The Court: What do you say to that, Mr. Lexow? I think I will refuse to charge that because even if he was guilty of contributory negligence, yet if the engineer of the train in the exercise of reasonable care could have avoided hitting it, it was his duty to do so. The acts were not concurrent.

“ Mr. Patterson: Exception.”

This was error. The judge had charged that if the collision was due to lack of care on the part of the plaintiff or his employees, the verdict must be for the defendant. The request might have been refused because the general charge was sufficient. The judge undertook instead to clarify and restate the law. The refusal to charge that plaintiff could not recover if he was guilty of contributory negligence in driving on the track in itself was error. The reason given for so refusing, i. e., that the acts were not concurrent, was also erroneous.

The learned judge, in giving his final instructions, doubtless had in mind the doctrine of last clear chance.” If the recovery is to be sustained on the doctrine of “ last clear chance,” the jury should have been properly instructed in regard thereto. It should have been told that the doctrine is never wakened into action unless and until there is brought home to the defendant to be charged with liability knowledge that another or his property is in a state of present peril, in which event there must be reasonable effort to counteract the peril and avert its consequences. (Woloszynowski v. N. Y. Central R. R. Co., 254 N. Y. 206; Panarese v. Union Ry. Co., 261 N. Y. 233; compare Am. L. Inst., Restatement of Torts, Tentative Draft No. 10, § 15.) If one by a negligent act places himself or his property in a position of danger his negligence does not contribute to defeat bis recovery if the situation was known to the defendant in time to avert the consequence of plaintiff’s own negligence. In such a case the defendant’s negligence is the sole cause-of the injury. It must not rim on inert and callous ” and cause an accident which proper care might have avoided. On the charge as made plaintiff’s contributory negligence did not defeat recovery, because the acts were not concurrent.” Defendant was charged by such instructions as matter of law with the duty of seeing the stalled truck and stopping the train, whether or not it was found as a fact that the engineer saw and understood the danger and ran recklessly on.

The jury might well have been misled into the belief that plaintiff’s negligence did not defeat his recovery unless the negligent acts of defendant and plaintiff were concurrent. No such principle has ever been recognized in our law. A plaintiff who negligently subjects himself or bis property to a risk of harm from a defendant’s negligence may not recover for injury resulting therefrom, except as the doctrine of last clear chance is applicable.

The judgment of the Appellate Division and that of the Trial Term should be reversed and a new trial granted, with costs to abide the event.

Crane, Lehman, Kellogg and O’Brien, JJ., concur; Crouch, J., dissents; Hubbs, J., not sitting.

Judgments reversed, etc.


text:
    Ernest C. Atkins, Appellant, v. Hertz Drivurself Stations, Inc., Respondent, Impleaded with Another.
    (Argued March 13, 1933;
    decided April 11, 1933.)

      John P. McGrath, Toivo H. Nekton and Joseph S. Robinson for appellant.
    The law upon which the defense rests violates the Federal Constitution by denying to the plaintiff the equal protection of the laws. (Van Blaricom v. Dodgson, 220 N. Y. Ill; Feitelberg v. Matuson, 124 Mise. Rep. 595; Downing v. City of New York, 219 App. Div. 444; 245 N. Y. 597; Kennedy v. Travelers Ins. Co., 127 Mise. Rep. 665; Psota v. L. I. R. R. Co., 246 N. Y. 388; Atchison, etc., Ry. Co. v. Vosburg, 238 U. S. 56; Louisville G. & E. Co. v. Coleman, 277 U. S. 32; Power Co. v. Saunders, 274 U. S. 490; Missouri Pacific Ry. Co. v. Mackey, 127 U. S. 205; Minneapolis & St. Louis Ry. Co. v. Herrick, 127 IT. S. 210; C., K. & W. R. R. Co. v. Pontius, 157 IT. S. 209; St. John v. New York, 201 U. S. 633; People ex rel. Farrington v. Mensching, 187 N. Y. 8; Slingerland v. International Contracting Co., 169 N. Y. 60.) The law upon which the defense rests violates the State Constitution by granting an exclusive privilege and immunity to a private corporation. (Matter of Union Ferry Co., 32 Hun, 82; 98 N. Y. 139; State v. Yard, 42 N. J. L. 357; Lynn v. Nichols, 122 Mise. Rep. 170; 210 App. Div. 812; Garrett v. Turner, 235 Penn. St. 383; Westfall v. Chicago, 280 111. 318; Hendrick v. Maryland, 235 U. S. 610; Matter of N. Y. Elev. R. R. Co., 70 1ST. Y. 328; Matter of Church, 92 1ST. Y. 1; Perkins v. Heert, 158 N. Y. 306.)

      Henry J. Smith and J. M. Sheen for respondent.
    The proviso of section 59 of the Vehicle and Traffic Law (Cons. Laws, ch. 71) is not in contravention of the provision of article III, section 18, of the New York State Constitution which provides that the Legislature shall not pass a private or local bill granting to any private corporation any exclusive privilege, immunity or franchise. (Matter of Union Ferry Co., 98 N. Y. 139; Perkins v. Heert, 158 N. Y. 306; Dawley v. McKibbin, 217 App. Div. 784; 245 N. Y. 557; Downing v. City of New York, 219 App. Div. 444; 245 N. Y. 597; Brooks v. McNutt Auto Delivery Co., 126 Mise. Rep. 730; Feitelberg v. Matuson, 124 Mise. Rep. 595; Matter of McAneny v. Board of Estimate, 232 N. Y. 377; Bush v. N. Y. Life Ins. Co., 135 App. Div. 447; Brooklyn v. Nassau Electric R. R. Co., 44 App. Div. 462.) The proviso is not class legislation prohibited by the Fourteenth Amendment to the United States Constitution. (Hodge Drive-It-Your self Co. v. Cincinnati, 284 U. S. 335; Welch v. Harnett, 127 Mise. Rep. 221; Allen v. Cincinnati, 37 Ohio App. 339; Levy v. Daniels U-Drive Auto Renting Co., 108 Conn. 333; Robinson v. Bruce Rent-a-Ford Co., 205 Iowa, 261; Genusa v. Houston, 108 S. W. Rep. [2d] 772; Whitney v. California, 274 U. S. 357; People v. Beakes Dairy Co., 222 N. Y. 416; People v. Klinck Packing Co., 214 N. Y. 121; People v. Havnor, 149 N. Y. 195; Biddles, Inc., v. Enright, 239 N. Y. 354; City of New York v. Kelsey, 158 App. Div. 183; 213 N. Y. 638; St. John v. New York, 201 U. S. 633; Missouri Pacific Ry. Co. v. Mackey, 127 U. S. 205; Graves v. Minnesota, 272 U. S. 425.)
   Crane, J.

The complaint in this action sets forth a cause of action in negligence against the Hertz Drivurself Stations, Inc., and Daniel Manley to recover damages for injuries received in an automobile accident. The corporate defendant owned and rented out cars. Manley hired one of its cars and was driving at the time of the accident. The corporate defendant, by its answer, as a complete defense, alleged as.follows: “3. That this defendant is a corporation engaged in the business of leasing motor vehicles to be operated on the public highways and pursuant to and in compliance with Section 59 of Chapter 71 of the Consolidated Laws carries insurance in an Insurance Company approved by the Insurance Commissioner of the State of New York insuring the renter against liability arising out of his negligence in the operation of such motor vehicle in the sums therein set forth.”

Thereupon, the plaintiff made a motion to strike out this defense, as insufficient at law, and the defendant made a cross-motion for judgment on the pleadings on the ground that the complaint failed to state facts sufficient to constitute a cause of action. Both motions were denied and both parties appealed to the Appellate Division. The Appellate Division affirmed the order denying the plaintiff’s motion to strike out the answer, and by a separate order reversed the order of the. Special Term refusing the defendant’s motion for judgment on the pleadings, and granted the motion. Thereafter, judgment was entered on this latter order dismissing the complaint, and for costs, from which the plaintiff appeals to this court. The plaintiff also appealed from the order refusing to strike out the third defense. This latter order is not a final order, and from it the plaintiff could not appeal. However, his appeal from the judgment dismissing his complaint brings up the same question, so it is unnecessary for us to say anything about his right to appeal from the intermediate order. In other words, he moves to strike out the defense as insufficient, but the Appellate Division has found it to be sufficient and has dismissed the complaint. It will be seen at once that, whether the plaintiff appeals from the order refusing to strike out the defense, or. from the judgment dismissing the complaint on the strength of the defense, the same question is presented.

The only question involved is the constitutionality of section 59 of the Vehicle and Traffic Law (Cons. Laws, ch. 71), and the plaintiff concedes in argument and in brief that if this be constitutional the judgment must be affirmed. His attack is upon the constitutionality of this law. Some suggestion has been made that this question was not raised, in the court of first instance, but the form of the pleadings makes it apparent that this is not so, and that the constitutionality of this law was the only question raised. The plaintiff, in setting forth his cause of action, was not obliged to plead a void law. If this provision of the Vehicle and Traffic Law were unconstitutional, it was void and of no effect, and the plaintiff could plead his facts as though it had no existence. This he did. The answer set forth the statute as a bar, but under our practice the plaintiff was not obliged to reply. Whatever attack he could make upon it was open to him without further pleading. Thus, the issue was raised as to the validity of the act, and came before the Special Term upon the respective motions.

Let me quote this section, so far as applicable:

§ 59. Negligence of operator other than owner attributable to owner. Every owner of a motor vehicle or motor cycle operated upon a public highway shall be liable and responsible for death or injuries to person or property resulting from negligence in the operation of such motor vehicle or motor cycle, in the business of such owner or otherwise, by any person legally using or operating the same with the permission, express or implied, of such owner. * * * A chattel mortgagee of a motor vehicle or motor cycle out of possession shall not be deemed an owner within the provisions of this section; provided, however, that any person, firm, association or corporation engaged in the business of renting or leasing motor vehicles to be operated on the public highway who carries or causes to be carried public liability insurance in an insurance company or companies approved by the insurance commissioner insuring the renter against liability arising out of his negligence in the operation of such motor vehicle, in limits of not less than five thousand dollars for any one person injured or killed and ten thousand dollars for any number more than one injured or killed in any one accident, and against liability of the renter for property damage in the limit of not less than one thousand dollars for one accident, shall not be subject to the provisions of this section. Such policy of insurance shall inure to the benefit of any person operating the vehicle by or with the permission of the person so renting the vehicle in the same manner and under the same conditions and to the same extent as to the renter.”

At common law there was no liability upon the owner of an automobile for negligence of a person to whom he had loaned it. (Potts v. Pardee, 220 N. Y. 431.) The adoption of section 282-e of the Highway Law, now section 59 of the Vehicle and Traffic Law, changed all this and created a liability upon the part of the owner for negligence caused through the act of any one driving his car with his consent, express or implied. Such extension of liability is wholly statutory. (Psota v. Long Island R. R. Co., 246 N. Y. 388.) The Legislature, in creating this new liability or cause of action, could give it such limitations as were not arbitrary and unreasonable discriminations. The liability is alike for individual and corporate owners, with the exception, that any person, firm, association or corporation engaged in the business of renting and leasing motor vehicles to be operated on- the public highway, who carries insurance of not less than $5,000 for one person injured, or $10,000 for more than one, shall not be subject to the provisions of this section. This means that such an owner shall not be liable for the negligence of the person to whom he has rented the car; the common-law liability has not been extended or enlarged; he is not liable, even when the car is rented by him and used with his express consent. If the Legislature had stopped here and thus attempted to place liability upon all owners who permitted others to use their cars, with the exception of those who rented them for hire, a very serious question might arise as to the constitutionality of such a provision. The reasonableness of such a classification might well be challenged. (Missouri Pacific Ry. Co. v. Mackey, 127 U. S. 205; Minneapolis & St. Louis Ry. Co. v. Herrick, 127 U. S. 210; Chicago, Kansas & Western R. R. Co. v. Pontius, 157 U. S. 209; St. John v. New York, 201 U. S. 633; Atchison, Topeka & Santa Fe Ry. Co. v. Vosburg, 238 U. S. 56; People ex rel. Farrington v. Mensching, 187 N. Y. 8; Slingerland v. International Contracting Co., 169 N. Y. 60.)

The provisions of section 59, however, do not stop here. The liability of the owner of a car, who is properly insured, is in effect shifted from the owner to the operator, and from the operator to the insurance company. In other words, the owner of a car who comes within this provision is liable for injuries without limit, if he is not insured. If he has taken insurance in the approved amounts, then the operator, or person renting the car, is liable, and has, as security for his liability, the policy of insurance taken out by the owner. In two respects is an exception made by this section in favor of those engaged in the business of renting cars: One, if the requisite insurance has been taken out, the owner is not liable for the use of his car; two, the person operating such a vehicle of course is hable for his own negligence causing the injury, but he has the benefit of the insurance policy taken out by the owner; that is, a judgment recovered against the operator or person renting the ear may be collected out of the insurance company insuring the owner, as provided for in this section. The owner of cars for hire, who has insured under this section, is not hable for an injury caused through the negligence of the person renting the car, but the latter is hable and is protected by the owner’s insurance, while at the same time the injured person has the benefit of such insurance. In case the person operating the car is financially irresponsible the insurance company must pay the judgment, as in other cases of motor vehicle hability policies, up to the extent of the amount of the policy.

Are these exceptions or provisos in favor of automobile owners who rent cars for hire arbitrary and unreasonable and without any basis for such classification? Classifications and exceptions are generally matters for the Legislature and are only declared unconstitutional where it is quite apparent that they are arbitrary and without reason for existence. We are able to discern that without such limited liability no person or company could afford to carry on the business of renting automobiles for hire. Hiring out a number of cars without the selection of operators would be a risk too great to take and unlimited insurance of a large number of such cars would probably cost too much to make such an enterprise profitable. These at least are matters which the Legislature could take into consideration. In placing upon owners of motor vehicles a liability which did not exist at common law, to wit, a liability for the negligence of one who operates the car with the owner’s consent, the Legislature has deemed it wise to except from this statutory liability those persons or corporations who are engaged in the business of renting or leasing such vehicles, if they be insured as stated in the statute. This secures for the person injured an insurance fund of at least $5,000 for a judgment recovered, not against the owner, but against the person renting the car. There being some ground or reason for this classification, we agree with the court below, that section 59 of the Vehicle and Traffic Law is constitutional. Perhaps it may be well to call attention to the fact that these provisions do not apply to cars rented or hired when operated by the servants or employees of the owner.

The judgment appealed from should be affirmed, with costs.

Pound, Ch. L, Lehman, Kellogg, O’Brien and Crouch, JJ., concur; Hubbs, J., not voting.

Judgment affirmed.


text:
    Sylvanus Van Aken et al., Respondents, v. The State of New York, Appellant.
    (Claim No. 19576.)
    (Argued March 9, 1933;
    decided April 11, 1933.)

      John J. Bennett, Jr., Attorney-General (Ja?nes Gibson and Harold P. Burke of counsel), for appellant.
    The damages, excepting the value of the easement appropriated, were damnum absque injuria, for which there can be no recovery. (Miller v. State of New York, 229 App. Div. 423; Transit Comm. v. L. I. R. R. Co., 253 N. Y. 345; Adamo v. State of New York, 235 App. Div. 12; Matter of New York Municipal Ry. Corp. v. Weber, 226 N. Y. 70; Storey v. Elev. R. R. Co., 90 N. Y. 122; Warner v. State of New York, 132 App. Div. 611; 204 N. Y. 682; O’Brien v. N. Y. C. & H. R. R. R. Co., 148 App. Div. 733; City of Corning v. O’ Neill, 180 App. Div. 454; Sauer v. City of New York, 180 N. Y. 27; 206 U. S. 536; Willis v. TWinona, 59 Minn. 27.)

      Joseph M. Fowler for respondents.
    Regardless of actual taking the judgment was authorized. (Coster v. City of Albany, 43 N. Y. 399; City of Corning v. 0’ Neill, 180 App. Div. 454; 227 N. Y. 625; People ex rel. Bushnell v. Newell, 131 App. Div. 555; Taylor v. Hopper, 62 N. Y. 649; Reis v. City of New York, 188 N. Y. 58.) Actual taking of a portion entitled claimants to damages to the whole. (Henderson v. N. Y. C. R. R. Co., 78 N. Y. 423; South Buffalo Ry. Co. v. Kirkover, 176 N. Y. 301; Matter of New York Mun. Ry. Corp. v. Weber, 179 App. Div. 245.)
   O’Brien, J.

Claimants’ farm in Ulster county abuts on and lies south of a highway known as Clay road which leads in an easterly direction to Port Ewen. Its acreage is separated by the right of way of the West Shore division of the New York Central railroad which runs north and south. During many years communication between the two parcels consisted in passing a few feet along Clay road over a grade crossing. The State eliminated this crossing by the erection of a fence on each side of the tracks and, as a result of the closing of Clay .road at this point, transit for vehicles from the homestead and barn to the other division of the farm is practicable only by proceeding along a road which extends north from the westerly end of Clay road and thence by traveling east by another road, parallel to and north of Clay road and leading also to Port Ewen, and finally by journeying south on a new road which connects the northerly Port Ewen road with that section of Clay road lying east of the closed grade crossing. The distance included within this circuit is more than a half mile.

As part of the proceeding directed to the elimination of the crossing and the construction of the new highway which connects the two roads to Port Ewen, the State acquired an easement in an extremely small portion of the east division of the farm. The part taken consists only of fourteen one-thousandths of an acre. Damages against the State, based upon the taking of the easement in this tiny parcel and upon the elimination of the crossing and the consequent inconvenience of access between the two sections of claimant’s property, have been awarded. So much as constitutes compensation for the direct taking is proper. The validity of that part of the award for consequential damages, arising from the closing of Clay road at the railroad crossing, is the issue of law between these parties.

The Grade Crossing Elimination Act (Laws of 1928, ch. 678) provides by section 5 (subd. 8) that any owner may present to the Court of Claims a claim for the value of “ such property appropriated and for legal damages.” It provides by section 6 that, if the work of elimination causes damage to property not acquired, the State shall be hable, but that “ this provision shall not be deemed to create any liability not already existing in law.” The coimts below have reaffirmed the correctness of the doctrine that, if none of claimants’ property had been taken, the damages caused by the closing of the railroad, crossing would be damnum absque injuria. (Miller v. State, 229 App. Div. 423.) They have held, however, that since some part has been taken, damages for the closing may be recovered. We cannot adopt this rule. It results in the creation of a “ liability not already existing in law,” and its application is forbidden by the provisions of section 6. Such consequential damages as may be awarded are those resulting from a direct taking. The appropriation of the small portion of land east of the track did not in any way affect claimants’ access. The inconvenience was caused not by the excavation of the bank for the purpose of curving the intersection of the old road with the new but by the erection of the fences on both sides of the track across the old road. Access to a highway remains for each division of claimants’ premises. The westerly section continues to have an outlet through the road leading north from Clay road. The easterly section abuts, as formerly, on that part of Clay road which runs directly to Port Ewen. On these facts, no damages for closing were recoverable at common law and the statute has distinctly failed to create a new liability.

The order of the Appellate Division and the judgment of the Court of Claims should be reversed and the matter remitted to the Court of Claims with directions to make an award only for the taking of the fourteen-thousandths of an acre.

Pound, Ch. J., Crane, Lehman, Kellogg and Crouch, JJ., concur; Hubbs, J., not sitting.

Ordered accordingly.


text:
    In the Matter of Michael Fornara, Appellant, against William Schroeder, Jr., et al., Constituting the Sanitary Commission of the City of New York, Respondents.

      (Argued March 14, 1933;
    decided April 11, 1933.)

      Samuel M. Ostroff and Charles L. Baskin for appellant.
    Appellant’s transfer to the Department of Sanitation did not require a reclassification of his position. Appellant was protected from removal except as provided in subdivision 1 of section 22 of the Civil Service Law (Cons. Laws, ch. 7), and that statute cannot be circumvented by an unnecessary reclassification of his position. (People ex rel. Hoefle v. Cahill, 188 N. Y. 489; Kilcoyne v. Lohr, 226 App. Div. 218; 252 N. Y. 526; Stutzbaeh v. Coler, 168 N. Y. 416.) The Appellate Division committed error in holding that appellant could be removed even though he was an honorably discharged World War veteran and no charges were preferred against him. (People ex rel. Fonda v. Morton, 148 N. Y. 156; People ex rel. Fallon v. Wright, 150 N. Y. 444;_Matier of Seeley v. Stevens, 190 N. Y. 158; People ex rel. Weeks v. Ward, 162 N. Y. Supp. 744; 179 App. Div. 905; Stutzbaeh v. Coler, 168 N. Y. 416.)

      William, R. L. Cook, Jr., for Queens County Committee of the American Legion, amicus curial.

    The benefits given to war veterans by section 22 of the Civil Service Law (Cons. Laws, ch. 7) are not limited, to positions in the competitive class but are extended to positions in the exempt class such as that held by the appellant prior to the creation of the Department of Sanitation. (Matter of Seeley v. Stevens, 190 N. Y. 158; Matter of Naughton v. Boyle, 129 Mise. Rep. 867; People ex rel. Weeks v. Ward, 162 N. Y. Supp. 744; 179 App. Div. 905; People ex rel. Tate v. Dalton, 158 N. Y. 204.) The creation of the Department of Sanitation, with the consequent transfer to it of the appellant’s position, did not terminate the employment and could not lawfully, and was not intended to, result in a reclassification of the appellant’s position while held by him. (Matter of Breckenbridge v. Scanned,, 160 N. Y. 103; People ex rel. Davison v. Williams, 213 N. Y. 130; Powers v. Dahl, 219 FT. Y. 578; People ex rel. Sugden v. Partridge, 174 N. Y. 87; People ex rel. Wilson v. Knox, 45 App. Div. 537; Kilcoyne v. Lohr, 226 App. Div. 218; 252 N. Y. 526; People ex rel. Weeks v. Ward, 162 N. Y. Supp. 744; 179 App. Div. 905.)
    ' Arthur J. W. Hilly, Corporation Counsel (J. JosephLilly, Henry J. Shields and Rodin H. Reed of counsel), for respondents.
    The appellant never held a valid appointment as Superintendent of Street Cleaning in the borough of Queens. (People ex rel. Qua v. Gaffney, 69 Mise. Rep. 36; 142 App. Div. 122; 201 N. Y. 535; Matter of Allaire v. Knox, 62 App. Div. 29; 168 N. Y. 642; Koso v. Greene, 260 N. Y. 491; People ex rel. Hannan v. Board of Health, 153 N. Y. 513; Peck v. Belknap, 130 N. Y. 394; Matter of Stevenson v. Harvey, 228 App. Div. 707; People ex rel. Rosenthal v. Travis, 169 App. Div. 203.) The defendant Sanitary Commission is without power to reinstate the appellant. (Matter of Simons v. McGuire, 204 N. Y. 253; Matter of Blatz v. Esser, 189 App. Div. 763; Civ. Serv. Law, § 11, subd. 2; Cons. Laws, ch. 7; People ex rel. Balcom v. Mosher, 163 N. Y. 32; People ex rel. Corkill v. McAdoo, 113 App. Div. 770; Matter of Christey v. Cochrane, 211N. Y. 333.) The defendant Sanitary Commission had power to remove the appellant at pleasure. (Matter of Cooper v. Paris, 73 Mise. Rep. 244; People v. Mayor of New York, 82 N. Y. 493; United States ex rel. Palmer v. Lapp, 244 Fed. Rep. 377; People ex rel. Qua v. Gaffney, 69 Mise. Rep. 36; 142 App. Div. 122; 201 N. Y. 535.)

   Pound, Ch. J.

Prior to December 1, 1929, the petitioner was employed as superintendent in charge of street cleaning in the borough of Queens, New York city. Theretofore the supervision and direction of street cleaning had been conducted as a part of the business of the Borough President of the borough of Queens under the provisions of section 383 of the Greater New York Charter (Laws of 1901, ch. 466, amd. Laws of 1921, ch. 170). The Sanitation Department of the City of New York was created on December 1, 1929, by local law of that year, No. 13 of the Municipal Assembly. The Bureau of Street -Cleaning was included within that organization. The petitioner herein was continued in his old position pending a classification of the position for the new department. His original classification was in the exempt class and had he been continued as he desired he would have continued to be in the exempt class. His request was approved by the Municipal. Civil Service Commission and, with the approval of the Mayor, his position was classified in the exempt class. The resolution placing the petitioner in the exempt class was forwarded to the State Civil Service Commission for approval. The State Civil Service Commission refused to approve the same. A second time the resolution was submitted to the State Civil Service Commission with a like result. Upon notification from the Civil Service Commission that it refused to classify the petitioner’s position in the exempt class, the defendant, by its assistant to the chairman of the Sanitary Commission, wrote the petitioner that his tenure of office would end on December 15, 1930. Thereupon the petitioner instituted the present proceeding asking for reinstatement upon the ground that by virtue of section 22 of the Civil Service Law (Cons. Laws, ch. 7) the petitioner, being a veteran of the World War, could not be removed from the position held by him, except after a hearing upon charges filed against him. The defendant contends that the provision of the statute upon which the petitioner relies furnishes him no aid, and that the refusal of the State Civil Service Commission to classify the position as exempt prevents the continuation of the petitioner upon the payroll of the city. The defendant also urges that the provisions of section 22 of the Civil Service Law are inapplicable and that the petitioner was not removed within the scope of that section. We assume that he was properly appointed to the position of superintendent of street cleaning in the exempt class and that he is not a “ private secretary, cashier or deputy.”

The Appellate Division has held that petitioner is not protected from removal by reason of the provisions of section 22, above referred to, and that such section does not protect appointees in the exempt class. Such provisions are as follows: “ No person holding a position by appointment or employment in the * * * several cities * * * thereof who is ah honorably discharged soldier * * * having served as such in the * * * world war * * * shall be removed from such position except for incompetency or misconduct shown after a hearing upon due notice upon stated charges, and with the right to such employee or appointee to a review by writ of certiorari.” This we think was error.

Positions in the exempt class are included under the provisions of section 22 above cited (Matter of Seeley v. Stevens, 190 N. Y. 158), and are not excepted by section 13 which does no more than indicate what positions shall be included in the exempt class.

When the position which petitioner held in the Bureau of Street Cleaning in the exempt class was reclassified in the competitive class, petitioner’s tenure was not affected. He was not classified out of office. He was transferred along with his position “ without examination.” (New York City Local Law No. 13 of 1929, adding ch. XI-A, § 605-v, to the Charter of the City of New York.)

It is not unheard of that persons appointed to a position-in the exempt class should strive to render more secure their tenure by being classified into the competitive class. If legally appointed their tenure is not affected by a reclassification. (Matter of Sugden v. Partridge, 174 N. Y. 87.)

When petitioner became an appointee in the exempt class he was entitled to a hearing upon charges before removal. When his position was transferred to the competitive class he was not required to qualify therefor by entering a competitive examination. No new office was created. The Civil Service Commission did not deem it practicable to determine the qualifications of a superintendent of street cleaning by a competitive examination until after he had been appointed. Petitioner was in the class that could not be removed from office except in the manner provided by law — on charges and after a hearing. The State Civil Service Commission. could not remove him. It has done no’ more than refuse to approve a resolution reclassifying the position.

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

Crane, Lehman, Kellogg, O’Brien and Crouch, JJ., concur; Hubbs, J., not voting.

Ordered accordingly.


text:
    In the Matter of Robert Newell, on Behalf of Himself and Others Similarly Situated, Appellant, against The City of Buffalo et al., Respondents.
    (Argued March 10, 1933;
    decided April 11, 1933.)

      William S. Rann for appellant.
    The purpose of the present charter of ■ the city of Buffalo is the protection of the executive and administrative departments against unnecessary interference by the Common Council. (Pryor v. City of Rochester, 166 N. Y. 548; Kansas City v. Bacon, 147 Mo. 259.) The salaries of the officers and employees of the city of Buffalo, when not specified in the charter itself, are determined or fixed by ordinance, and have always been so determined. (Sauerbrunn v. Board of Education, 150 App. Div. 407; 208 N. Y. 550; Matter of Rudd v. Cropsey, 159 App. Div. 275; Laws of 1837, ch. 392, § 9; Laws of 1853, ch. 230, tit. 3, § 8; Laws of 1870, ch. 519, tit. 3, § 4; Laws of 1891, ch. 105, § 17, subd. 1; Laws of 1914, ch. 217, § 46; Buckbee v. Board of Education, 115 App. Div. 366; 187 N. Y. 544; Pitt v. Board of Education, 216 N. Y. 304; Matter of Bate-man v. Mayor, 247 N. Y. 250.)

      Charles L. Feldman, Corporation Counsel (John E. L/ivermore of counsel), for respondents.
    The power to establish and control salaries of governmental officers and employees is generally speaking a legislative power. Statutes limiting or delegating that power or depriving the legislative body of jurisdiction to act' without the consent of a non-member officer should be strictly construed and not extended by interpretation. (Cochnower v. United States, 248 U. S. 405; People ex rel. Flatbush Gas Co. v. Coler, 190 N. Y. 268.) The meaning of the word “ fix ” in relation to salaries depends upon the provisions of the particular statute in which it is used. (Matter of Rudd v. Cropsey, 159 App. Div. 275; Buckbee v. Board of Education, 115 App. Div. 366.)
   Crane, J.

The petitioner is the chief bookkeeper of the Division of Accounting in the Department of Audit and Control in the city of Buffalo, whose salary for the past six years has been $4,000 per annum. When the Mayor submitted the budget for city expenses to the Common Council, that body reduced the petitioner’s salary to $3,500, without any written or oral recommendation of the Comptroller, as head of the petitioner’s department, or of the Mayor. Other reductions of similar nature were made in the salary of other city employees. The petitioner thereupon made this application for a mandamus to compel the payment of his salary at the rate of $4,000 per annum, alleging that the Common Council had no power to reduce salaries without the request or consent of the head of the department wherein the particular employee was engaged.

The power of the Common Council over increases ’ and decreases in salary is to be found in the charter of the city of Buffalo, in effect January 1, 1928 (Local Laws of 1927, No. 4), and we shall at once turn to the provisions in point.

The general scheme of the charter seems to be that the budget of administrative expenses for the ensuing year, submitted by the Mayor to the Common Council for approval, is subject to reduction by the latter body, but that all increases must be approved by other officials. Thus, we find in section 39 of the charter the following provisions: “At the first meeting of the council, after the submission to it by the mayor of the annual budget, the council shall proceed to a consideration thereof.

“ The council may strike out or reduce items therein and may add thereto items of appropriation, provided that such additions are stated separately and distinctly from the original items of the budget and refer each to a single object or purpose.

“ If no additions are made by the council, the budget, as passed by it, shall be deemed to have been adopted without any action of the mayor; if, however, the budget, as passed by the council, contains any such additions, it must be presented by .the city clerk to the mayor on or before April fifteenth for his consideration of such additions. If the mayor approves all the additions, he shall affix his signature to a statement thereof and return the budget and such statement to the city clerk. The budget, including the additions as part thereof, shall then be deemed to have been adopted. The mayor may object to any one or more of such added items and in such case shall append to the budget a statement of the added items to which he objects with the reasons for his objections and shall return the budget with his objections to the city clerk who shall present the same to the council at its next stated meeting. The council shall thereupon enter the objections upon its journal and proceed to reconsider the additions so objected to. If upon such reconsideration two-thirds of all the members constituting' the comicil vote to approve such additions, or any of them, notwithstanding the objections of the mayor, the budget with the additions so approved, together with any additions not so objected to by the mayor, shall be deemed to have been adopted. If a budget with additions is not returned by the mayor to the city clerk with his objections within ten days after its presentation to him, it shall be deemed to have been adopted. ”

The point to be noted at this time in reading these sections is that the Common Council apparently has plenary power over reductions, but, as to increases, more caution is taken. The Mayor must approve, or, if he disapprove, the Common Council must adopt the increase by a two-thirds vote. The same method is provided in section 41 for so-called emergency increases to the budget items of any department.

When this charter went into effect, January 1, 1928, all the existing employees were carried over into the new departments in similar positions and at the same salaries.

Section 75 and section 440 of the charter: — The latter provision reads as follows: “All appointive officers and employees in office or position when this act takes effect shall continue as such until the office or position is abolished or the officer or employee is removed pursuant to law.”

The petitioner was one of those in the employ of the city at the time this new charter went into effect.

The scheme of the old city government, or the employees under it, might not be sufficient or appropriate for the municipal work to be carried on under the new charter. With the growth of the city and the expansion of municipal activities, new positions would have to be created. The charter revisers naturally could see this and provided, in section 442 of the charter, for such conditions. Realizing, no doubt, that the party in power is frequently inclined or encouraged to increase its adherents by multiplying positions, a certain curb was placed upon the creation of new offices. Section 442 reads: “No new offices, except such as are provided for in this act, and no new positions shall be created, except with the approval of the council and upon the certification by the appointing power to the council that the creation of such new office or position is necessary for the proper conduct and administration of the department, court, board, commission or other city agency, in which said new office or position is sought to be created, and stating specifically the reasons therefor.”

Note, again, in this connection, that the Common Council cannot create a new position except upon the certification by the appointing power that it is necessary for the work of the particular department. The new position requires the consent and approval of the head of the department. The Common Council cannot force additional help into places where they are not needed and not wanted. Note, again, that when a new position is created with the consent of the head of the department, section 442 says nothing about the salary to be paid the new appointee. We find this provided for in section 453, which applies to the salaries of all the city staff, with the exception of the elective officers and board members, who are provided for in section 451 and section 452. Section 453 reads: Other salaries. The council shall have exclusive power to fix the salary or compensation of every officer and employee of the city other than those enumerated in the two preceding sections. No such salary shall be hereafter raised nor fixed except upon the written recommendation of the head of the department or other city agency and in the event that it is decided to hereafter raise or fix the salary of any head of department or city agency the written recommendation of the appointing power in respect thereto shall be required.”

As we read this provision in connection with the other sections of the charter which I have quoted, it is clear that all the employees in office when the charter was adopted continued under the new charter at the same salary. Thereafter, the salary of any such employee could not be raised except upon the written recommendation of the head of the department wherein he was employed. If a new position were created, as provided for in section 442, upon the certification of the appointing power that such new position was necessary, the salary attaching to such new position must be fixed by the Common Council, also upon the written recommendation of the head of the particular department. This is the meaning of the word fixed ” in this section 453.

No limit is placed upon the power of the Common Council to reduce salaries. As with the budget, when submitted by the Mayor, so with the particular items in the budget relating to salaries;— no increase in the budget without the Mayor’s consent, except as therein provided; no increase in salaries without the consent of the head of the department; no fixing of a salary for a new position without the approval of the head of the department requesting such position. And here the restrictions apparently end. Decreases were not specifically provided for or protected against. The drafters of this charter probably had in mind, due to past experiences, the welfare and protection of the public, rather than the safe-guarding of employees, from the ubiquitous malcontent.

When any power, says section 13 of the charter, is conferred upon the city, and the method of exercise is not prescribed by the charter, the Council shall itself, if the power be legislative, exercise, and regulate the exercise of, such power.

The petitioner claims that the word fixed,” as used in section 453, above quoted, has reference to any change made by the Common Council, and that a reduction is a fixing of a salary. From this he argues that a reduction cannot be made without the recommendation of the head of his department. We are of opinion, as above stated, that this word fixed ” has reference to new positions, and would be quite inappropriate to express the meaning of all ghanges or a reduction. Had the Legislature intended that no increase or reduction in salary could be made without the approval of the head of a department, the natural and easy way to express it would have been to say that no changes ” shall be made without the recommendation of the head of the department. The section will not bear the interpretation given it by the appellant.

The petitioner also alleges that he is a veteran and could not be removed under the Civil Service Law (Cons. Laws, ch. 7) without a trial or an opportunity to be heard. These provisions, sections 21 and 22 of the Civil Service Law, however, do not apply to the reduction of salary made in good faith. (People v. Prendergast, 221 N. Y. 659.)

The order appealed from should be affirmed, without costs.

Pound, Ch. J., Lehman, Kellogg, O’Brien and Crouch, JJ., concur; Hubbs, J., not sitting.

Order affirmed.


text:
    The People of the State of New York, Respondent, v. Orazio Procito, Appellant.
    (Argued February 27, 1933;
    decided April 11, 1933.)

      Caesar B. F. Barra and Ralph J. Barra for appellant.
    The trial court was required to state a definite term as the increased punishment within the limits prescribed therein, and to add the determined definite term of the punishment prescribed for the crime of which the defendant stands convicted and to sentence defendant accordingly. (Penal Law, § 1944.)

      Thomas C. T. Grain, District Attorney (Philip A. Donahue and Felix C. Benvenga of counsel), for respondent.
    The sentence was legal and proper. (People v. Gutter son, 244 N. Y. 243; Penal Law, § 21; People ex rel. Hunt v, Lane, 132 App. Div. 406; 196 N. Y. 520; People v. Adams. 176 N. Y. 351; 192 U. S. 585; People ex rel. Cohen v. Rattigan, 157 N. Y. Supp. 1003; 172 App. Div. 957; City of New York v. N. Y. C. R. R. Co., 193 N. Y. 543; Prouch v. Prudential Ins. Co., 204 N. Y. 281; McCarthy v. Woolston, 210 App. Div. 152; People v. Caruso, 249 N. Y. 302; People v. Paradiso, 248 N. Y. 123; People v. Kevlon, 221 App. Div. 224; People v. Ingber, 248 N. Y. 302.)
   O’Brien, J.

In the Court of General Sessions defendant pleaded guilty to the crime of robbery in the third degree. Never before had he been convicted of a crime punishable by imprisonment in a State prison but he was armed with a pistol at the time of the commission of this felony. The indeterminate sentence pronounced upon him, for robbery in the third degree as a first offender was for a term of not less than five nor more than ten years. In imposing this sentence the judge applied section 2129 with section 2189 of the Penal Law. By reason of the fact that defendant was armed at the time of the commission of the crime of robbery, this punishment by an indeterminate sentence was increased by an additional indeterminate sentence of not less than five nor more than ten years. (Id. § 1944.) The total sentence pronounced against him, therefore, amounts to a term of not less than ten nor more than twenty years.

The pertinent provisions of section 1944 of the Penal Law (as amd. by Laws 1931, ch. 791) are: If any person while in the act of committing a felony * * * shall be armed with a pistol, * * * the punishment elsewhere prescribed in this law for the felony of which he is convicted shall be increased by imprisonment in state’s prison for not less than five nor for more than ten years. * * * In no case shall any person punishable as above provided be put upon probation or have the execution of his sentence suspended, notwithstanding the provisions of section twenty-one hundred and eighty-eight, for the increased term of his punishment imposed as above.” The last part of this section must be read with section 2188 of the Penal Law which provides: “ 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! Neither sentence, nor the execution thereof, shall be suspended, nor the defendant placed on probation * * * if the person is convicted of a felony committed while armed with a weapon as provided in section nineteen hundred and forty-four.” Section 1944 deals with probation only as probation affects the increased term imposed for carrying a weapon and does not assume to regulate the subject of probation in relation to the punishment for the felony. Section 2188 is more comprehensive than the injunction included within section 1944. Neither section, however, forbids the parole of a prisoner after partial service of his sentence. The purpose of section 2188 is to render mandatory the execution of a prison sentence upon an armed felon. With the exception of the crimes enumerated therein, the judge may suspend sentence or suspend the execution of a sentence and then and there place the defendant on probation. The subject there involved is probation at the time of conviction of the felony and not parole after partial service of a sentence. When section 1944 and section 2188 are read together the result is a prohibition, at the time of conviction, against suspension of sentence, suspension of the execution of the sentence and probation for the felony itself and a like prohibition against the suspension of the increased punishment for carrying a weapon or probation in respect to such increased punishment. The convicted defendant, who was armed, must in every instance receive a prison sentence for the felony plus an additional term for carrying the weapon. Neither of these sections prescribes a rule regulating the nature of the sentence, either fixed or indeterminate.

Defendant committed the felony of robbery; he carried a weapon while committing that crime. All agree that, as a first offender, he is entitled to the clemency bestowed upon every first offender by section 2189 of the Penal Law and that the punishment imposed upon him by an indeterminate sentence for the felony of robbery is authorized. Whether section 1944 intends the imposition of a fixed or an indeterminate number of years as the additional punishment for a first offender is the issue before us.

The Legislature has not expressly directed that the increased punishment shall be indeterminate. The inference that the legislative purpose was to add a fixed number of years to the maximum and the minimum of a sentence unspecified in length would not be unreasonable. Yet, when consideration is given to the fact that one who never previously had been convicted of a felony is intended to be favored by an indeterminate sentence, the inference that the purpose was to continue the extension of the favor and to assimilate the nature of the increased punishment with the punishment for the principal crime is probably more firmly grounded in reason. At least in those instances where the sentence must be indeterminate, did not the Legislature intend that the duration of the increased punishment also should be unspecified? Although construction of the statutes applicable to the state of facts presented by this record has been variable in the trial courts, the prevailing practice seems to incline toward the interpretation given to them in the case at bar. It was adopted also by the trial judge in People v. Caruso (249 N. Y. 302, 304), and is warranted by the language of section 1944. Although the exact point was not necessarily before us in the Caruso case, because it was not expressly raised, our actual decision of affirmance and our opinion, in which the increased indeterminate punishment is mentioned without adverse comment, lends support to the custom.

The prevailing practice of the courts based upon this reasonable interpretation of the language of section 1944 of the Penal Law ought not to be disturbed. The judgment should therefore be affirmed.

Pound, Ch. J., Crane, Lehman and Crouch, JJ., concur; Kellogg, J., dissents; Hubbs, J., not voting.

Judgment affirmed.