author: Crane, Ch. J.

text:
    The People of the State of New York, Respondent, v. Frances Q. Creighton and Everett C. Appelgate, Appellants.
    (Argued April 30, 1936;
    decided May 26, 1936.)

      Elvin N. Edwards and Joseph Lonardo for Frances Q. Creighton, appellant.

      Charles R. Weeks, John R. Niesley and George A. Gibson for Everett C. Appelgate, appellant.

      Martin W. Littleton, District Attorney (Philip Huntington of counsel), for respondent.
   Crane, Ch. J.

The defendants Frances Q. Creighton and Everett C. Appelgate were indicted and convicted for murder in the first degree for having killed Ada Appel-gate, the wife of the defendant Appelgate, on the 27th day of September, 1935, at 12 Bryant place, Baldwin, in the county of Nassau. The death was caused by arsenic poisoning. Before stating, the occurrences on the fatal day it may be well to see who these people are and under what conditions they had been living.

Frances Q. Creighton and her husband John Creighton had been living for some time in a one-story and attic bungalow at 12 Bryant place, Baldwin, Long Island. The bungalow' consisted on the ground floor of a living room, dining room, kitchen, two bedrooms and bath. At the front door was an inclosed porch. A stairway in the rear led to an open attic, the front part of which had been fitted up for a bedroom.

This couple were about thirty-six years of age and had two children, a daughter Ruth, fifteen years of age, a pupil in the high school, and a son twelve years of age. John and his wife had been married seventeen years. He was employed in the county engineer’s office at a salary of $166 a month. In 1928 he had become acquainted with Appelgate through membership in the American Legion. They were both members of a post in Nassau county and frequently attended its meetings and social affairs together.

Appelgate was also thirty-six years of age and had married Ada Appelgate in July, 1920. He had entered the United States service during the war on October 2, 1918. The armistice was declared the next month. He became a very enthusiastic member of the Legion and during the summer of 1935 ran for county commander of Nassau county. He was defeated. At the times here in question he was employed as investigator in the Veterans’ Relief Bureau, making between twenty-five and forty dollars a week. He had a Chevrolet car which he drove around quite extensively.

Ada Appelgate was a large woman, weighing at the time of her marriage about two hundred pounds, which increased to about two hundred and sixty. This fact is only material to this case in that she was in perfect health, having been treated by a physician only to reduce. A little girl, Agnes, thirteen years of age, was the only child of this couple, and had become a friend and companion of Ruth Creighton.

Up to November 17, 1934, the Appelgates had been living with Mrs. Appelgate’s father but, due to disagreements, the Creightons took them in and thereafter, up until the murder, they lived together as one family, Mr. and Mrs. Appelgate sharing one bedroom on the ground floor, and Mr. and Mrs. Creighton the other. The two girls, Ruth and Agnes, occupied the room in the attic, and the boy slept on the porch. The expenses of the household were divided between the two families, one paying a little more than the other.

Ruth Creighton testified that months before the Appel-gates came to live with them the defendant Everett Appelgate had had sexual intercourse with her which continued at various times. She states the various places throughout the county of Nassau where he performed this act while they were in his car. The relations were continued after he came with his wife and daughter to live with them. She states that on one occasion she slept in the bed with him and his wife; that they then had sexual intercourse. When in September of 1935, Mrs. Appel-gate was taken to the hospital for four days, Ruth slept with Appelgate.

Ruth testifies that Appelgate told her that he loved her, and she told him that she loved him. I know,” she said, he asked me if I would like him better if he was single.” She tells of an incident when Mrs. Appelgate got out of the automobile and slammed the door, and that Appelgate jumped out of the car and.went after her: He knocked her up a bit; he banged her up a bit, and she fell down in the yard. * * * She said if that was Ruth he wouldn’t have gone after her.”

Appelgate as a witness in his own behalf admits his improper relations with Ruth in every particular as detailed by her except that he denies the illicit relations commenced before he moved into the Creighton home. Ruth testified that Appelgate also had improper relations with her mother.

As to these relations with Ruth the defendant Appel-gate on the witness stand said: I may say this much, her mother’s own arrangement —■ she slept with me, in the same bed with me when the house has been crowded.” Exhibit 37 is a letter which Appelgate wrote to the Assistant District Attorney De Meo, addressing him as “ Dear Al.” It shows that he kept track and had knowledge of Ruth’s menstrual periods.

Up to this point the evidence, about which there is no dispute, shows that Appelgate was guilty of rape in the second degree, having had relations with a girl under eighteen years of age even though with her consent. His wife was in a position, if she chose, to have him arrested and prosecuted and also to inform Mr. Creighton of the action of his daughter with her husband. That she knew of these improper relations must be self-evident; that she thought of doing something about it may be gathered from the following testimony: John Creighton testified that on one occasion, about Labor Day, Appelgate and his wife had words over some letters; that he slapped her face and pushed her down in a chair and said to her: You have lied to me ever since I have been married to you.” Whereupon she replied, “ If you ever do that again I will tell something that will put you where you belong.”

Mr. Creighton also testifies that on one occasion when all the family were present friends known as the Green-fields called. The defendant said to Creighton after they had gone home, “ ‘ What do you think that fellow Greenfield said? ’ He said, ‘ If I wanted to go around with Ruth I should get an apartment and keep her there and not have her around the house, and if she got in trouble I could get a doctor to fix her up.’ He said, * What do you think of that? ’ ” Creighton says that he was dumbfounded and afterwards, apart from the family, had a talk with the defendant, his friend, and said, “ What do you mean by that, Appy? You wouldn’t do anything to my daughter, would you? ” To which the defendant replied, No, sir. You know me. I would not harm a hair of her head. I think as much of your daughter as I do of Agnes.”

Another incident may throw some light upon Appel-gate’s relations with his wife and affection for Ruth. This comes from a witness named Marjorie F. Harris, a neighbor living in Málveme, whose husband was also active in the Legion. She saw a great deal of these people. Mrs. Creighton called her on Friday morning and told her of Ada Appelgate’s death and asked her to come over and help. She went on Saturday when Mrs. Appelgate was laid out in her coffin in the living room, and Mr. and Mrs. Creighton, Mr. Appelgate and his daughter and Ruth Creighton were present. This was the conversation: “Well, they were in the kitchen — ■ they were eating their dinner. * * * The conversation came up about Mr. Appelgate getting married again. I was really surprised. I said to Mr. Appelgate, ‘ Well, Appy, if you think about getting married, I think you are crazy.’ With that, John Creighton said, Well, Appy, if you marry someone with a lot of money — and old, with one foot in the grave, why that wouldn’t be so bad.’ With that Appelgate turned to me and he said, It would be funny, Margie, if I married someone real young.’ My daughter said to Ruth Creighton, ‘ Ruth, how old are you? ’ Ruth says, ' I will be sixteen in October.’ Ruth asked Florence, 1 How old are you? ’ Florence says, ‘ I will be fifteen in January.’ With that, Appelgate turned to Florence and says, ‘ Why, Florence, are you in circulation? ’ I looked at him and I says, ‘Appy, I am surprised. If you are thinking about marrying anyone that young, I think you are more than crazy.’ * * * Ruth Creighton was crying on her mother’s shoulder. Afterwards, Mrs. Creighton says to me, Do you know why Ruth is crying? ’ I says, ‘ No.’ She says, ‘ You know, she would feel terrible if her Uncle Ev got married again.’ ”

The reasonable inference to be gathered from this testimony is this: Appelgate and Ruth Creighton were in love with each other. They had been living together almost as man and wife. Even when his wife was in the hospital he was carrying on improper relations in his room and bed with Ruth. The neighbors and friends noticed the relationship and remarked about it. It was open; it was apparent. Did Appelgate have a motive to get rid of his wife so that he could marry Ruth? A reasonable and natural inference to be drawn from such conduct would be that he had such a motive. Then again, was he afraid that his wife might tell what she knew? He was guilty of a felony to which he had no defense. If his wife spoke he would be arrested and punished. Also Buth’s father, Creighton, might make trouble for him if Mrs. Appelgate spoke and told what she knew. So much for Appelgate and his relation to the Creightons.

Now as to the Creightons. In March of 1935 numerous anonymous letters were received at 12 Bryant place threatening the Appelgates, making disparaging remarks about them and telling them to get out. Appelgate turned some of these over to the police but there is no evidence that anything was done about it. Mrs. Creighton denied knowing anything about these letters up until the day she took the stand and testified in her own behalf when she admitted that she had written them for the purpose of causing her husband “ to cease their staying in the house.” The following are extracts from some of these letters: “ We have you all on the run and if you don’t do as you should with those rats at' your place you should be made miserable to. * * * They are grafters I know them they lived with her people long enough for nothing. * * * Don’t put any truth in what he says. We know he is a Legioner and that you are to but don’t trust him. I know his wife since she was a child and we know all about her family so watch out * * * We have warned you but still you travel with him and people who do not know when they are well off get in trouble to so you have no kick if you get hurt to. * * * We will get you all yet for the trick you Appelgates played on the old man. You are yellow or you would put them out long ago. You will meet us yet and when we meet watch out. * * * Watch out for the Appelgates they are nice to your face but she talks of you to people they are only using you because they have no place to go. You are white but they are not, she’s common like us we are her relatives. * * * Also the woman with dark hair his wife is a big noise and can be heard all over and those kind are only full of * * * and wind but sneaks and cowards at heart and we can get at her where it hurts and she will crawl out. * * * We will watch our chance and get you all. * * * You are-— nuisances. Why don’t people take a tip and clear out the Appel-gates. * * * We will get all. * * * You will learn when you see what we do to him when we do it when our chance is right.”

Joseph H. Appelgate, brother of the defendant, and a newspaper man, now given to writing crime stories principally, in July of 1935 had a conversation with Mrs. Creighton in which she said that it was not as pleasant living together with the Appelgates as he might think, and continuing said: “ ‘ I think a great deal of Everett, he is one of the finest men I ever knew. But why he ever married that big fat wife of his is more than I can understand. I don’t get along with her at all.’ I said, ‘ Why don’t you put them out? ’ She looked at me and smiled in a peculiar way and says, ‘ Well,’ she says, there is another way.’ I said, ' What do you mean? ’ She says, ‘ Oh, I would like to slip her some rat poison.’ ”

Walter C. Mayer was a friend of the Appelgates living in Bellmore, Long Island. On one occasion he had taken Mrs. Creighton to the bakery in his car. He pulled up to the curb as she wanted to talk to him, and his testimony is: “And I pulled up to the curb and stopped and Mrs. Creighton said she wished I would help her get rid of the Appelgates, that she did not want the Appelgates in her home.”

In her testimony and statements Mrs. Creighton swears that Appelgate had sexual intercouse with her on various occasions in the automobile and in her bed. This he denies. Ruth had testified that her mother knew of her illicit relations with Appelgate as she had caught them in her room together. What do we gather from this to have been the feelings of Mrs. Creighton toward the Appelgates? In her testimony she says that she feared Appelgate as he held over her head the knowledge of her trial in New Jersey in 1923 and had threatened to expose the circumstance to her children. We at least may gather from the above evidence that she wanted to get rid of the Appelgates and had a special aversion to Mrs. Appelgate. The anonymous letters may have been harmless but carry certain threats. The situation in this household was indeed complicated and could not have existed much longer without a blow-up from some direction.

We are justified in believing that Appelgate loved Ruth, also that he feared his wife might tell of his crime. Mrs. Creighton was friendly with Appelgate, perhaps more than friendly, and feared that he might tell her children and the public about her trial in New Jersey in 1923. Appelgate admits on the stand or in his statement to the District Attorney that he had been informed by a member of the Legion about the trial of Mr. and Mrs. Creighton for murder in New Jersey, and that he had spoken to John Creighton about it to assure himself that they were not guilty. He had shown some interest in this story and to this extent corroborates Mrs. Creighton when she swore that she was under his domination and was fearful that he would tell the children and the neighbors about it as he had threatened to do.

At last we come to Thursday night, September 26th. Ada Appelgate was taken violently sick that night and died the next morning as the result of arsenic poisoning. She had eleven grains of arsenic in her body, as the experts testified after the examination of her parts. A lethal dose is three grains, so that she had received more than enough to kill three persons. Only two persons were interested in her death. She was poisoned by either her husband or Mrs. Creighton or by both. Mrs. Creighton swears that she gave her the poison at the direction and under the domination of the defendant Appelgate. He says that while he gave her an eggnog at eleven o’clock Thursday night which he prepared himself after putting whisky in it, he used no poison and knew nothing about “ Rough-on-rats ” or arsenic having been mixed with it. He bolstered his wife up in bed and took an hour or more to feed her the eggnog. This, Mrs. Creighton says, contained arsenic. His statement is: “ Q. When you took this eggnog to your wife, how did she take it? A. My wife was in a weak condition. I found it necessary to support her back with my arm, raising her body and head off the pillow, where she would be in a condition to drink it. The drinking was accomplished through a regular hospital type straw — with a glass straw, about that shape (indicating). She took very little of it. I guess it was fully two or three hours before she got it down-to possibly an inch from the bottom of it, which she never finished at all. She never took the full contents of the glass.”

We shall begin, however, this period of sickness with the Wednesday of the previous week. It was that day, September 18th, that Mrs. Appelgate was taken sick and removed to the South Nassau Community Hospital on Saturday, the 21st. By the following Wednesday, September the 25th, she had fully recovered, at least the doctor in attendance said that she could take normal food. On that day she was brought home and, although confined to her bed, had recovered from the illness which took her to the hospital.

Mrs. Creighton, in one of her statements to the District Attorney, said that she had put rat poison in her coffee, in junket and in milk. On the stand, in testifying in her own behalf as a witness, she denied that she had given Mrs. Appelgate poison at any time and said that she did not know anything about arsenic or the poisonous nature of rat poison. She testifies that in the early part of September Appelgate took her in his car to a drug store on the Merrick road, known as a cut-rate drug store, and told her to get a twenty-five cent box of rat powder; that she got it and gave it to him and he put it in his pocket. Her testimony leading up to the death is this: Shortly after dinner that night “ I went to the icebox and got the milk and poured it into a glass and he gave me or handed me a powder and told me to put it in the milk. Sort of grayish white substance, a white paper.

Q. And was it a paper anything similar to the paper shown in Exhibit 12, that I show you, the papers from the druggists? A. Similar, yes.”

At eleven o’clock an eggnog was given to Mrs. Appel-gate. She swears it was given by Mr. Appelgate. “ He prepared it. I gave him some things for it. He put whisky in it which he got out of his room. It was in an ice tea glass. Q. What did you see see him add to it? A. A similar powder he gave me. * * * There was a,glass straw in it and he was sitting down alongside of her. He was bolstering her up and feeding her.”

John Creighton testified that he saw Appelgate give his wife a milk shake or a milk punch that night. “ Well, I saw him going in the room from the kitchen across the dining-room and into her bedroom with it in his hand, and he was stirring it as he went along.”

Everett Appelgate admits that he gave his wife an eggnog at eleven o’clock that night which he prepared himself and, as before stated, he says it took him more than an hour to give it to her. He bolstered her up in bed. He says, however, that he did not know there was any poison in it, but about three o’clock on Friday morning everybody was aroused by Mrs. Appelgate’s sickness; she had diarrhea and toward morning apparently became comatose. Her eyes became glassy and her hands cold. Her husband straddled her body in the bed and commenced artificial respiration. She was dead at half-past eight. Dr. Zabin was called at 6:24 and at 7:36. No one seemed to have told him of her desperate condition. He simply advised that she be taken to the hospital. Dr. Caldwell was later called and found her dead.

The District Attorney makes some point about these telephone calls and the exact time at which they occurred. Becollection of time is so uncertain that we need not assume that death had come before the calls. More to the point is it that after death Dr. Zabin at first refused to make a death certificate without an autopsy. Appel-gate refused to permit an autopsy and the doctor gave a certificate anyhow. When summoned to the District Attorney’s office a few days later Appelgate again refused to permit an autopsy but was finally persuaded to consent.

Both Appelgate and Mrs. Creighton were arrested and thereafter made statements. These statements were fairly made in the presence of doctors, and there is no question of force, violence or fear. The last confession of Mrs. Creighton was written out in her own handwriting voluntarily at her own request and sent to the Assistant District Attorney. She there states that after Appelgate had had the first act of intercourse with her in the car he said: Listen Fran not a word of this to John do you hear, remember Jake Pettit told me about the 1923 affair & if you say a word I shall make that known by broadcasting it & if I do it may mean John’s job.”

These are long statements reviewing much that I have already said regarding the life of these people at 12 Bryant place. She implicates Appelgate in the manner stated.

In her first statement, on October 8, 1935, she says that Appelgate gave her a white powder and told her it was arsenic and to put it in the milk and to keep her mouth shut. She also says that on Thursday evening, September 26, 1935, at about 11:30 o’clock she saw Appelgate prepare an eggnog and put a similar white powder into it, a powder which he took from his lower vest pocket. Continuing, she states: He said to me later that no matter if arsenic was found in Ada’s body they would have a hard job later proving it had come from any of us, because nobody could say that we did it, and Ada had been in the hospital.”.

The last confession is dated October 10th and 11th; the first October 8th; one comes in between these two and is sworn to October 9th; it is an examination by an Assistant District Attorney (Mr. Strohson) in question and answer form. In this she swears to having poisoned Mrs. Appelgate by putting arsenic in coffee, junket and milk, and says that she put the rat powder in the eggnog that Mr. Appelgate gave to his wife. She also says she does not think Mr. Appelgate knew at that time that there was rat powder being administered to his wife. She said her previous statement was false and that she accused Appelgate because of his mistreatment of her daughter. All this is denied in the self-written statements of October 10th and 11th in which she tells that Appel-gate was the one who did the poisoning, dropping the powder in the milk and the eggnog, to which story she adhered when she was on the stand. All of these statements were accepted simply as evidence against Mrs. Creighton, the judge cautioning the jury that under no circumstances should these confessions or statements out of court be accepted as evidence against Appelgate.

Appelgate was questioned at length on September 29th, which was Sunday. He said he did not have the slightest idea who murdered his wife, and that if there had been an attachment between Mrs. Creighton and himself there would be some motive for taking his wife’s life, but there was no such attachment. It. is in his statement that he states that in 1934 when he moved into the house he knew about Mrs. Creighton’s background. This is what he said: “Andrew McFarland of Hempstead came to me one day in the Relief Office and asked what the-kind of - - organization I belonged to that would have a louse like this guy belong to it. I asked him what he meant. He replied, ' Don’t you know that fellow was a murderer? He and his wife are both murderers? ’ * * * The next meeting with Creighton I put it up to him. He promptly said it was the truth, they had been indicted in 1923, and had been exonerated. Q. Did he tell you any of the details, what the basis of the charge was? A. He did in a very brief manner. He told me Mrs. Creighton’s brother committed suicide.”

Appelgate in his testimony says that it was Mrs. Creighton if any one who bought the Rough-on-rats ” at the drug store. He admits going there with her. He also admits about his refusal to have an autopsy until persuaded by the District Attorney. He admits the conversation about marrying again when his wife was dead in the next room. He also admits on the stand that he had been told and knew all about the trouble in New Jersey, and uses this expression: “ I confronted John with it.” He admits about the sexual relation with Ruth and that it was a practice that obtained almost every other day, with few exceptions.

Counsel for Mrs. Creighton, when she was on the stand as a witness, took up the Strohson examination of October 9th, wherein she had exonerated Appelgate. She denied categorically that these statements exonerating him were true and virtually explains them by saying that her mind had snapped and that she was worried about her daughter being locked up. On cross-examination the District Attorney asked Mrs. Creighton why she had not complained to her husband about Appelgate’s assault on her in the automobile on the first occasion. She had testified that it was against her will and resistance. “ Q. What was it that held you back? A. Because Appelgate had threatened to expose the trouble we had in 1923 if I ever made mention of it.

Q. Is that what kept you fearful of him all the way through, I take it? A. Yes.

Q. And that is the dominating influence he held over you? A. Yes.”

She further testified on cross-examination that she did not know that “ Rough-on-rats ” was a deadly poison. “ Q. And you had never known that “ Rough-on-rats ” was poison or arsenic? A. No, I did not know.” She further testified under cross-examination that when the milk was given to Mrs. Appelgate she knew that there was a dose of arsenic in the milk because Appelgate had told her so and that was the only way she knew. I had no knowledge of arsenic. I only knew it was arsenic because he said so. Q. You never told the doctor? A. No.” Again, she said that most of the statements in the Strohson confession where she left out Appelgate were suggested to her. “ In that statement practically everything was suggested to me.”

Thus we have Mrs. Frances Creighton testifying against Appelgate. It was he who gave the poison to his wife in the milk and in the eggnog. He dominated Mrs. Creighton; she was afraid of him. She did not dare tell her husband because Appelgate had threatened to expose the fact of her trial in New Jersey in 1923.

The District Attorney refrained from asking her on cross-examination what it was that Appelgate threatened to expose. At no time or place did the District Attorney bring out anything about the previous trouble in 1923 in New Jersey. It was strange indeed that if Mrs. Creighton was forced to do all these things she did not tell someone. Her reason for not doing so, which seems quite plausible, is that Appelgate threatened to expose her about some trouble in 1923. She gives this as a reason herself, voluntarily. The District Attorney would have been justified in asking her what this trouble was which Appel-gate threatened to expose, but he did not do so.

However, when Appelgate’s lawyer commenced to cross-examine Mrs. Creighton, he had a perfect right to show not only that her testimony was false but that she had no fear of exposure of any trouble by Appelgate. He did this by asking Mrs. Creighton if she had written a letter to Joseph Appelgate, the defendant’s brother, in July of 1935, addressed to 909 Maple avenue, Ridgewood, N. J., wherein she sought to sell him a story for the True Detective magazine, wherein she detailed the events of her trouble in New Jersey, and requesting him to use fictitious names or give the names of her children’s grandmother and grandfather. A certain portion of this correspondence was placed in evidence. This testimony was perfectly competent. Appelgate’s attorney could thus cross-examine Mrs. Creighton to show that she had no fear of exposure of any trouble in 1923, because she had just a few months before tried to sell the story to a story writer.

Mrs. Creighton had testified that she knew nothing about arsenic or rat poison. The attorney for Appelgate was justified in questioning her about another trial in which she had learned all about arsenic, about rat poisoning and its deadly effect. The fact that she was the defendant in such a trial could not keep out such competent evidence. Even then no one knew what the trial was about in New Jersey until counsel for Mrs. Creighton, on re-examination of his client, said: Q. Both you and your husband were tried in Jersey and acquitted on that charge, were you not [arsenic poisoning]? A. We were.” Continuing, counsel showed that Mrs. Creighton had kept the information of her trial in 1923 from her children, and that Mr. Appelgate knew all about the matter, and that he had gotten the information from a Mr. Pettit, one of the officials of the American Legion. The District Attorney was not in on this at all.

Mrs. Creighton had accused Appelgate and Appelgate had accused Mrs. Creighton, at least tried to exonerate himself for the death of Mrs. Appelgate. The testimony brought out by the defendants’ counsel was competent and bore upon the question, first, of Mrs. Creighton’s fear of Appelgate and her domination by him, and, second, her knowledge of arsenic and of the poisonous nature of Rough-on-rats.” Evidence which is relevant and pertinent never becomes incompetent simply because it relates to another trial. Anyhow, the District Attorney did not bring out this testimony. He had a right, however, to take up the matter where these counsel left it and continue his cross-examination further as he did.

At this point in the trial the court took pains to instruct the jury at the request of Mrs. Creighton’s attorney that the jury were to disregard all evidence regarding the New Jersey trial except as it bore upon her knowledge and credibility. Otherwise it was of no consequence.

There is another reason why the Joseph Appelgate evidence became important and competent. Whatever relations Mrs. Creighton had with Ada Appelgate could be shown by either the People or the defendants. This letter to Joseph Appelgate was written at the suggestion of Mrs. Appelgate, the dead woman. She and Mrs. Creighton were to share the price paid for the story. The two women had talked it over and the letter and correspondence were instigated by Mrs. Appelgate. So Mrs. Creighton swears. Surely it was competent to show that the dead woman knew all about Mrs. Creighton’s previous murder trial, and that Mrs. Creighton was seeking to make money out of it. Her attitude toward such things and her lack of fear were all elements in this case.

Mrs. Creighton, on cross-examination, said: Everything I have said about him is true. He is the one who is really to blame in the whole thing. I will admit I should not have done what he asked me to, but what could I do under those conditions? ”

We have outlined the relations of these parties, the sordid conditions under which they lived, their motives, their fears, and now their accusations. That Mrs. Creighton is guilty — has been proved guilty beyond a reasonable doubt ■— there is no question. As to Appel-gate the jury were justified in finding him guilty. He had reason to fear his wife. His motive for disposing of her is apparent. Ruth and he were in love with each other, and his conduct speaks for itself.

• The condition of affairs at 12 Bryant place, Appelgate must have known could not last very long. Either Ruth would become pregnant or her father find out the facts. Appelgate evidently wanted to marry Ruth. Marriage was talked over and Ruth was crying about it before Mrs. Appelgate was in her grave. The conduct of the defendant showed that he had no fear of consequences and at least no love or affection for his wife. She had threatened to expose him. He had committed a State’s prison offense. The night the rat .poison was bought he went to the drug store with Mrs. Creighton. He admits giving her money for the price of the purchase. He admits giving his wife the eggnog and taking a very long time to do it, an hour or more before she could get it down. He kept feeding it to her. He declined to have a post mortem and was not at all interested in finding out whether a crime had been committed.

There only remains the judge’s charge to be considered. He cautioned the jury not to use the confessions as evidence except as against the one making them. He correctly charged the law regarding accomplices by calling attention to the fact that if the testimony of Mrs. Creighton is to be taken then she was an accomplice of the defendant Appelgate in the commission of the murder, and he cannot be convicted unless there be other evidence tending to connect him with the crime. The judge said: “ With respect to the testimony given on the witness stand by the defendant Creighton, so far as it may tend to connect the defendant Appelgate with the commission of the crime charged, I charge you that she is an accomplice as a matter of law, and that you cannot convict the defendant Appelgate upon her testimony alone, unless you find that her testimony is corroborated by other evidence which tends to connect Appelgate with the commission of the crime.”

He also cautioned the jury about the proper use of the evidence as to the sexual relations, all of which was to be considered simply as bearing upon the question of motive. And he again cautioned the jury regarding the matters brought out as to the cases in the State of New Jersey, and stated correctly the purpose of such evidence: That proof was not admitted and con'd not be admitted for the purpose of proving that the defendant Creighton was in any way guilty in such case or cases. She is not on trial for that. As a matter of fact, the proof here is that she was acquitted.” Mrs. Creighton’s counsel requested: I ask your Honor to charge that from the facts adduced, whatever they were in this case, as to the Jersey trial, the jury must draw no inference as to the guilt or innocence of the defendant on that charge.”

After a careful examination of the evidence in this case and the rulings of the trial court we can find no reason for disturbing the verdict of the jury and, therefore, affirm the conviction of both defendants.

The judgment of conviction of each defendant should be affirmed.

Lehman, O’Brien, Hubbs, Crouch, Loughran and Finch, JJ., concur.

Judgments of conviction affirmed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    In the Matter of Eva Rosenbush, Appellant, against Frank C. Keller, as Commissioner of Buildings of the Borough of Queens, Respondent.
    (Argued May 19, 1936;
    decided May 26, 1936.)

      Samuel Plumer for appellant.

      Paul Windels, Corporation Counsel (Edmund L. Pal-mieri and Paxton-Blair of counsel), for respondent.
   Per Curiam.

Appellant was not entitled to resort to the remedy of mandamus without availing herself of the right to appeal to the Board of Standards and Appeals. (Matter of Towers Management Corp. v. Thatcher, 271 N. Y. 94; decided May 19, 1936.) That Board is also empowered on a proper application to consider the argument here made on the basis of unnecessary hardship. (Amended Building Zone Resolution, § 21; see New York Code of Ordinances, Appendix B.)

The order should be affirmed, without costs.

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

Order affirmed.


text:
    The People of the State of New York ex rel. Blanche Sisson, Appellant and Respondent, v. Howard Sisson, Respondent and Appellant.
    (Argued April 16, 1936;
    decided May 26, 1936.)

      Frank W. Barnes for relator, appellant and respondent.

      Charles B. Bechtold for defendant, respondent and appellant.
   Per Curiam.

A Special Term, by its order sustaining a writ of habeas corpus, deprived the father of a ten-year old daughter of his right to control the child jointly with the mother and awarded exclusive guardianship, custody and control to the mother. The Appellate Division modified by returning the child to the joint guardianship, custody and control of both parents with the limitations that the father should not take the child from the town in which she resides without the consent of the mother nor from her home for a longer period than two hours at a time and then only after personal notice to the mother of the purpose and the place of the proposed visit.

The family consists of the father, Howard Sisson, the mother, Blanche Sisson, and the daughter, Beverly. They live together at their home in Sherburne, N. Y. Except for the difficulty over the education to be given the child, the family life appears to be much above the average despite the illness which has afflicted the mother. The father, a graduate of Cornell University, has built up a prosperous produce business. The mother had suffered somewhat from arthritis before the marriage and afterward the condition became progressively worse. As the condition became acute the father spared no expense or trouble in attempting to effect a cure, sending her to the Mayo brothers in Rochester, Minn., and other like places. All to no avail. For the past six years the mother has been bedridden. The child, Beverly, is above the average, both physically and mentally.

Disagreement between the parents has arisen over the education of the child. In no way does it appear that the health or welfare of the child is in danger.

In proceedings for the custody of children the courts have reiterated that their sole point of view is the welfare of the child. The parents of this child are obviously interested only in her welfare. When they realize that for the good of the child it is necessary for them to repress to some extent the natural desire of each to have the child educated solely according to his or her point of view, the remaining sources of difficulty doubtless will disappear.

The court cannot regulate by its processes the internal affairs of the home. Dispute between parents when it does not involve anything immoral or harmful to the welfare of the child is beyond the reach of the law. The vast majority of matters concerning the upbringing of children must be left to the conscience, patience and self restraint of father and mother. No end of difficulties would arise should judges try to tell pareñts how to bring up their children. Only when moral, mental and physical conditions are so bad as seriously to affect the health or morals of children should the courts be called upon to act.

The writ of habeas corpus must be dismissed.

The order of the Appellate Division and that of the Special Term should be reversed and the writ of habeas corpus dismissed, without costs.

Crane, Ch. J., Lehman, O’Brien, Htjbbs, Crouch, Loijghran and Finch, JJ., concur.

Orders reversed, etc.


author: Lehman, J.

text:
    Carmela Romano, Respondent, v. Metropolitan Life Insurance Company, Appellant.
    (Argued April 20, 1936;
    decided May 26, 1936.)

      Frederick C. Tanner, Charles G. Dougherty and Leonard M. Gardner, for appellant.

      Andrew F. Van Thun, Jr., and Gustave Schwartz for respondent.
   Lehman, J.

The plaintiff is the beneficiary named in a policy issued by the defendant insuring the life of her husband. The policy was dated January 25, 1933. The assured died on May 22, 1934. The proofs of death contained statements of facts inconsistent with representations made by the assured in his application for insurance. The insurance company denied liability under the policy. The plaintiff then brought this action to recover the amount of the policy. The defendant alleged in its answer that the policy was procured by fraud. Upon appeal to the Appellate Division, an order denying the plaintiff’s motion for summary judgment was reversed, the answer was stricken out and summary judgment granted in favor of the plaintiff.

The policy contained the usual clause that “ This policy shall be incontestable after it has been in force for a period of two years from its date of issue, except for nonpayment of premiums. * * ” The action was begun on August 15, 1934, by the service of a summons upon which appeared the indorsement, “Action to recover on policy 8132673-A.” At that time more than five months remained during which the defendant, either by action or defense, might contest the validity of the policy on the ground of fraud. It could not serve an answer at that time because no complaint had yet been served. It could not bring an action in equity to rescind the policy, while the action at law upon the policy was pending, if it “ had opportunity in that action at law, and before the policy by its terms became incontestable, to contest its liability.” (Enelow v. New York Life Ins. Co., 293 U. S. 379, 384.)

The defendant appeared in the pending action on September 4, 1934, and served “ a written demand of a copy of the complaint.” In accordance with the provisions of section 257 of the Civil Practice Act, the plaintiff was then bound to serve the complaint within twenty days thereafter, unless the time was previously extended. The defendant’s attorney granted successive requests of the plaintiff’s attorney for the extension of time to serve the complaint. It was not served until February 1, 1935, one week after the policy, according to its terms, became incontestable. For that reason the defense of invalidity, in the answer filed thereafter, has been stricken out.

In Killian v. Metropolitan Life Ins. Co. (251 N. Y. 44, 48) this court said that “ repudiation of a policy is notice that a contest will ensue if insured or beneficiary shall make attempt thereafter to enforce a claim of right. It is not a contest itself. * * * The clause, in effect, if not in form, is a statute of limitations, established by convention, and like the statute is directed to remedies in court (Wright v. Mutual Benefit Life Assn., 118 N. Y. 237). A contest, then, begins when the insurer avoids, or seeks to avoid, the obligation of the contract by action or defense. If the insured or the beneficiary is plaintiff, suing to declare the policy in force or to recover money due, the contest takes its start when the insurer serves an answer disclaiming liability. If insured and beneficiary hold back, preferring to wait till the time for contest has expired, the point of beginning is the time when the insurer sues in equity to declare the policy annulled.”

The limitation, established by agreement, may be extended by agreement. It is intended to give complete security to the assured or beneficiary after the stipulated time has elapsed. It is not intended to permit an assured or beneficiary to manoeuvre an insurance company out of its right to interpose a defense within the time limited. So, it has been held that where an insurance company, by answer interposed in an action upon a policy, challenges the validity of the policy within the time limited and the plaintiff then discontinues the action, the insurer may file the same defense in a new action brought after that period has expired. (Cf. Thomas v. Metropolitan Life Ins. Co., 135 Kan. 381; Lee v. All States Life Ins. Co., 49 Ga. App. 718; Powell v. Mutual Life Ins. Co., 313 Ill. 161; Ætna Life Ins. Co. v. Daniel, 328 Mo. 876.)

Though in Killian v. Metropolitan Life Ins. Co. (supra) this court defined the general formula, it recognized that in other cases complications might arise in applying the formula which would support the conclusion that “ by fair implication ” the limit of time within which the contest might be begun was extended. We did not attempt any definition of what circumstances would support such conclusion, but we said that “ complications will be unravelled when they develop.” In Jensen v. Metropolitan Life Ins. Co. (251 N. Y. 336, 340), decided a few months thereafter, we dealt with one such complication. There, as in this case, the assured died before the expiration of the period within which the company might contest the validity of the policy. In that case, however, no action upon the policy was begun till after that period had elapsed. The policy was payable to the estate of the assured, and this court held that “ the right of the company to contest [the validity of the policy] should be suspended during the period that it is prevented from contesting the policy by reason of the failure to sécure the appointment of a personal representative.” Otherwise, as we there pointed out, the persons interested in the estate to which a policy is. payable might render the company powerless if they refrained from taking out letters until two years had expired from the issuing of the letters.

The analogy of the Jensen case to the case now under consideration is incomplete. Here the plaintiff could not, either by action or inaction, prevent the defendant from contesting the validity of the policy during the period limited by agreement. The defendant could have refused to extend the plaintiff’s time and could have insisted upon the service of the complaint in accordance with the provisions of the Civil Practice Act, in time to permit the interposition of a - defense directed to that end in the pending action, and if such insistence proved unavailing might have begun an action in equity. The defendant was, however, induced by the plaintiff’s attorney to grant him the courtesy of an extension of time which so postponed the progress of the pending action that by the time the complaint was served the defendant had lost the opportunity to interpose any defense in the pending action or to bring an action in equity on the ground that it had no adequate remedy at law. The distinction is certainly shadowy between a case where an insurance company may be rendered powerless by a legal manoeuvre made possible by a loophole in the law, and a case where an insurance company may be rendered powerless by a manoeuvre made possible by the grant of a customary courtesy in the expectation that in the practice of the law, attorneys may not by request for an extension of time to serve a complaint trap an opponent into the abandonment' of a valid defense to the action. In both cases the insurance company may without fault on its part lose its rights through the manoeuvres of an opponent, and in both cases the courts should discountenance such manoeuvres.

We do not say that the attorney for the plaintiff intended by his request for extensions of time to lay a trap for the insurance company; we do say that when the extension of a courtesy proves a trap and results in the unintended loss of substantial rights, the courts should reheve the insurance company from the consequences. The insurance company was misled to its own harm by the request for an extension. The plaintiff has obtained an unintended and unjust benefit. A party may not, even innocently, mislead an opponent and then claim the benefit of his deception. A person may not rely upon a condition imposed for his benefit when failure to perform the condition is due to his own act.

We need not pause to determine whether all the elements of waiver or estoppel are here present, or whether, by fair implication, the requests for an extension of time to serve the complaint included an extension of time to interpose any defense which might have been interposed if the complaint had been served within the statutory time; nor need we now determine whether the insurance company could have brought an action in equity to rescind the policy after an action at law upon the policy had been commenced. Even should it appear that the requests for an extension of time to serve the complaint were made in good faith and without intent to trap the insurance company into abandonment of its defense, the fact would still remain that the company was induced by that request to refrain from beginning its contest of the validity of the policy within the time limited by the policy, and that the plaintiff or her attorney should have known that compliance with that request would naturally, if not indeed inevitably, lead to that result. In such case the courts should give proper effect to the acts and words of the parties, and place responsibility for the nonperformance of the condition of the policy upon the plaintiff who induced it.

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

Crane, Ch. J., O’Brien, Hubbs, Crouch, Loughran and Finch, JJ., concur.

Ordered accordingly.


author: Loughran, J.

text:
    Yvonne A. Cotnareanu et al., Respondents, v. The Chase National Bank of the City of New York et al., Appellants.

      (Argued April 16, 1936;
    decided June 2, 1936.)

      Carl A. Mead, S. S. Jennings, Jr., William H. Reevse and Frank A. F. Severance for The Chase National Bank of the City of New York et al., appellants.

      John W. Davis, Russel S. Coutant, Edwin F. Blair, Frederick G. Watson, Jr., and Robert W. Dew for John F. Woods, appellant.

      Samuel Seabury, Francis L. Kohlman and George Trosk for respondents.
   Loughran, J.

This is an action in aid of an execution issued in an attachment suit. The case is here on the pleadings.

The plaintiff sheriff has only an official interest in the controversy. The real plaintiff in interest is the creditor Cotnareanu, who will be called the plaintiff. The attachment debtor was one Francois Coty, a non-resident, now deceased. The property sought to be reached is an asserted interest of Francois Coty in certificates representing shares of the capital stock of Coty, Inc., a Delaware corporation. At all times here in issue those certificates were held by the defendant The Chase National Bank of the City of New York (hereinafter called the Chase Bank). Record ownership of them was in this bank’s nominee, the defendant copartnership Lee & Co. Defendant Woods is another creditor of Francois Coty, the attachment debtor.

This complaint further alleges the following facts: On July 11, 1932, the plaintiff commenced in the Supreme Court an action against Francois Coty to recover damages for breach of contract. The summons therein was served by publication. In that action the plaintiff procured on September 26, 1932, an attachment directing seizure of the property of Francois Coty, and the next day caused to be delivered to the Chase Bank a certified copy of the warrant and a notice that the sheriff attached all * * * property, debts, credits, and effects, and all rights and shares of stock ” of Francois Coty in the possession of the bank. On November 17, 1933, judgment in that action was entered in favor of the plaintiff on the default of Francois Coty, as a non-resident defendant served by publication. Execution on that judgment was served on the Chase Bank on December 22, 1933. Surrender to the plaintiff of the above-mentioned certificates of stock of Coty, Inc., was refused.

Plaintiff now demands that those certificates be delivered by the Chase Bank to the sheriff for sale of the claimed interest of Francois Coty therein and that the proceeds be applied in satisfaction of the judgment so recovered by the plaintiff against Francois Coty.

As a second defense consisting of new matter, the defendant Woods alleges the following facts: On November's, 1933, he commenced in the Supreme Court an action against Francois Coty as acceptor of overdue and unpaid bills of exchange and thereupon a warrant of attachment against the property of Francois Coty was issued in that action. On December 1, 1933, a certified copy of that warrant was delivered to the Chase Bank together with specific notices showing the property attached * * * and specifying in detail and by numbers the certificates of stock of Coty, Inc., which belonged to Francois Coty, including the certificates referred to in the complaint herein.” The only knowledge or information had by the Chase Bank in respect of any interest of Francois Coty in those certificates “ was derived from said specific notices caused to be served upon said The Chase National Bank of the City of New York by this defendant [Woods].” In that action Francois Coty was served by publication and defaulted in appearing.

A substantially similar defense is pleaded by the Chase Bank and its nominee in their joint answer.

There has been, certified to us the question whether these defenses are sufficient in law. This opinion discusses only that question.

We think either defense is a valid constructive denial of the allegation that the plaintiff’s attachment was levied upon any interest that Francois Coty may have had in the certificates of stock of Coty, Inc., held by the Chase Bank.

The parties are agreed that the thing the plaintiff tried to attach was in the nature of personal property incapable of manual delivery. An' attachment of such property is levied by leaving a certified copy of the warrant, and a notice showing the property attached, with the person holding the same.” (Civ. Pr. Act, § 917, subd.' 3.) “ The statute requires the service of both the warrant and the notice, and it is to the latter that the holder of the property must look to ascertain what property is attached, and upon that paper he must base his action.” (Hayden v. National Bank, 130 N. Y. 146, 150.)

We have quoted the wholly general terms of the notice served upon the Chase Bank with the plaintiff’s warrant of attachment. Service of such a notice does not effect a levy when nothing in the circumstances tends to identify to the garnishee any property in its possession in which the attachment debtor is claimed to have an interest. (Gittings v. Russel, 114 App. Div. 405; 187 N. Y. 538.) Consequently the levy attempted by the plaintiff could have no effect before the Chase Bank was apprised of the asserted interest of the attachment debtor (Francois Coty) in the certificates of stock of Coty, Inc., held by the bank in the name of the defendant Lee & Co. The defendants fix the time when the bank first knew of any claim that those certificates were in part the property of Francois Coty. That date, as pleaded, was December 1 1933. Plaintiff’s judgment against Francois Coty had theretofore been entered on November 17, 1933. Power to levy the plaintiff’s attachment could not survive the recovery of that judgment. (Civ. Pr. Act, § 520; McCarthy v. Culkin, 254 N. Y. 328.) In short, on the facts appearing in the pleadings the plaintiff has no lien.

It can. make no difference whether, as the plaintiff says, neither Francois Coty in his lifetime nor his legal representative since his death questioned the plaintiff’s attachment. This attack upon it does not depend on any personal privilege. One issue thereby tendered goes to due process. (McCarthy v. Culkin, supra.) In that aspect at least, these defenses, as stated, are sufficient.

We have not overlooked the argument addressed by learned counsel for the plaintiff to the scope of the decision in Gittings v. Russel (supra). It was there a fact (not pleaded here) that, after service of a like general notice of the property attached, the garnishee bank in good faith disposed of property of the attachment debtor held by it in the name of another. The materiality of this fact difference between the Gittings case and the case at hand has been urged upon us with great force and ability in behalf of the plaintiff. We cannot follow that argument to its end. In the Gittings case the question, as stated by the court, was whether an effective levy was made” (114 App. Div. at p. 407). That question was certified to this court and was answered in the negative (187 N. Y. 538, 539).

We have examined the other defenses challenged by the plaintiff. In our opinion it has been properly ruled that none of them is valid.

The orders should be modified in accordance with this opinion and, as so modified, affirmed, with Separate bills of costs in all courts to the appellants. The first question certified by the order granting leave to appeal to the defendant John F. Woods should be answered in the negative; the second question thereby certified should be answered in the affirmative. The second question certified by the order granting leave to appeal to the other defendants should be answered in the affirmative; the other questions thereby certified should be answered in the negative.

Crane, Ch. J., Lehman, O’Brien and Crouch, JJ., concur; Hubbs and Finch, JJ., taking no part.

Ordered accordingly.


text:
    Title Guarantee and Trust Company, Appellant, v. Mortgage Commission of the State of New York, Respondent.
    (Argued May 25, 1936;
    decided July 8, 1936.)

      Timothy N. Pfeiffer, Sinclair Hamilton, Wilber Stammler and Joseph V. McKee for appellant.

      Maurice Finkelstein, Frieda B. Hennock, John J. Clarke and Benjamin Rabin for respondent.

      Jess II. Rosenberg, Irving H. Jurow and Walter B. Herendeen for Louis H. Pink, Superintendent of Insurance of the State of New York, as rehabilitator of Lawyers Mortgage Company, amicus curiae.

   Per Curiam.

The Title Guarantee and Trust Company and the Mortgage Commission of the State of New York submitted the following controversy to the Appellate Division in the first judicial department, pursuant to sections 546-548 of the Civil Practice Act.

The plaintiff, the Title Company, issued and sold certificates representing undivided shares in first mortgages, of which mortgages it was the sole owner. Each of the mortgages was guaranteed by the Bond and Mortgage Company (now in rehabilitation) under a blanket policy of guaranty, which guaranteed payments of principal and interest to the Title Company and all subsequent owners of the mortgages and mortgage certificates. The Mortgage Commission has taken over from the Bond and Mortgage Company the servicing of these mortgages and is collecting interest payments thereon.

The Title Company in a number of instances did not sell sufficient certificates to cover the entire mortgage. It also has regained a number of certificates which it sold. The Mortgage Commission has collected interest on these mortgages but the sum collected is insufficient to pay the certificate holders other than the Title Company. It has refused to pay the Title Company on its certificates pending a judicial determination of the rights of the parties. The question submitted in reference to specific certificates and mortgages, in substance, is whether the Title Company may come in on a parity with other certificate holders and obtain its ratable share of the interest or are its rights subordinate to those of other certificate holders and must it wait until all of them are paid in full.

! The Appellate Division dismissed the submission on the grounds that it fails to disclose what connection, if any, exists between the plaintiff and the guarantor company and that all the certificate holders should have been given notice of the submission and afforded an opportunity of agreeing upon the submitted controversy.

The submission should not have been dismissed. It is true that a submitted controversy may be dismissed by the Appellate Division if, despite the affidavit alleging a bona fide dispute, collusion is found or there is lacking any fact necessary to enable the court to render judgment. The submission must present a bona fide justiciable controversy complete in itself. When a complete justiciable controversy is presented, however, if there resided power in the Appellate Division to refuse to decide such submission for the reason that the court desired that other facts, not present and not clearly defined, should be included, thus presenting a different issue for decision than that desired by the parties, the rights of the parties to a submitted controversy would be seriously curtailed. We, therefore, hold that where the facts as here submitted present a justiciable controversy and are sufficient to enable judgment to be given, with no question present that the issue between the parties is not bona fide or collusive, the court may not decline to hear and decide the controversy submitted upon the ground that there may be other and additional facts which if included might change the decision upon the issue as presented. The submission is adequate if it enables the court to draw conclusions of law determinative of the matter without the necessity of drawing inferences of fact. (See Marx v. Brogan, 188 N. Y. 431; New York Tel. Co. v. Siegel-Cooper Co., 202 N. Y. 502, 506.)

The parties in the case at bar having submitted a justiciable controversy, complete in itself and supported by affidavits showing a bona fide dispute, and there arising no claim of collusion, the judgment appealed from should be reversed and the submitted controversy remitted to the Appellate Division for decision, without costs.

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

Judgment reversed, etc.


author: Loughran, J. Finch, J.

text:
    Lewis E. Emery, as Administrator of the Estate of Kathleen Emery, Deceased, Respondent, v. The Rochester Telephone Corporation, Appellant.
    (Argued April 15, 1936;
    decided July 8, 1936.)

      Casper V. Baltensperger and T. Carl Nixon for appellant.

      George Hoffenberg for respondent.
   Loughran, J.

Kathleen Emery, aged seven years, died of scarlet fever. Her father, Lewis E. Emery, as her administrator, brings this action under article 5 of the Decedent Estate Law (Cons. Laws, ch. 13), complaining that the child’s death was the result of a wrongful neglect or default by the defendant telephone company of its duty as a public service corporation.

In its answer the company sets forth as a second affirmative defense that a schedule of its rates filed with the Public Service Commission limited liability for failure of service to pro rata allowances upon its monthly charges. The Appellate Division has certified to us the question whether that fact is a defense to the complaint as matter of law. We are to answer only if the complaint is itself sufficient. (Small v. Sullivan, 245 N. Y. 343.)

Plaintiff alleges that the defendant undertook to supply telephone service to his household and that tolls charged therefor had been regularly paid. That on the 8th day of March, 1933, at or about two o’clock in the morning of that day Kathleen Emery, the deceased, required the immediate attention of her physician and pursuant to the instructions of the physician who had then returned to bis home, the said Lewis E. Emery, did endeavor to summons him by telephone. That due to the negligence and carelessness of the defendant, its agent, servant and employee, the said Lewis E. Emery was unable to obtain a response from the central operator employed by the defendant, to handle calls coming from the residence of the said Lewis E. Emery and others living in the same locality and despite his repeated attempts lasting over a long period of time to obtain telephone service, he was unable to do so and was compelled to eventually dispatch a messenger for the physician. * * * That as a result of the delay in obtaining medical attention and care, caused by the defendant’s negligence in failing to fulfill its duty to furnish prompt and efficient service, Kathleen Emery died on the 8th day of March, 1933.”

On these allegations, the defendant may be taken to have breached its contract and its statutory duty. (Public Service Law [Cons. Laws, ch. 48], §§ 91, 93. Cf. Transportation Corporations Law [Cons. Laws, ch. 63], § 28.) We assume the hypothesis of the death of the child as a proximate result to be more than mere speculation. Something else is essential, however, to warrant a recovery by the plaintiff and that additional element is wanting.

An action by an executor or administrator for negligence or wrongful act or default causing the death of a decedent may be maintained only “ against a natural person who, or a corporation which, would have been liable to an action in favor of the decedent by reason thereof if death had not ensued.” (Decedent Estate Law, § 130.) Although the statute “ creates a new cause of action ” (Matter of Meekin v. Brooklyn Heights Railroad Co., 164 N. Y. 145, 153), and the presupposition of liability antecedent to death has no relation to the measure of recovery (Decedent Estate Law, § 132), still the action can be maintained only in the cases in which it could have been brought by the deceased, if he had survived.” (Whitford v. Panama R. R. Co., 23 N. Y. 465, 469. So, Littlewood v. Mayor, 89 N. Y. 24. Cf. Decedent Estate Law, § 120, added by Laws of 1935, ch. 795.) It is in this aspect that the present complaint states no cause of action. (Tiffany on Death by Wrongful Act [2d ed.], §§ 63, 181.)

Any recovery by the decedent against the defendant would have been limited to actionable damage sustained by her through its wrong. There was no direct interference with her physical person. (Cf. Brown v. Buffalo & State Line R. R. Co., 22 N. Y. 191.) All the harm done to her, if any, was relievable pain or emotional distress suffered because of the non-attendance of the physician. Nothing in the pleading concretely suggests such a result of the defendant’s non-feasance (Cf. St. Louis, Iron Mountain & Southern Ry. Co. v. Craft, 237 U. S. 648, 655) and in any case, as we think, a telephone company cannot be deemed to have assumed responsibility for special damages of that kind where, as here, the company did not have notice of so indefinite a risk of failure of its service. (See Kerr S. S. Co. v. Radio Corp., 245 N. Y. 284; Moch Co. v. Rensselaer Water Co., 247 N. Y. 160; 3 Sedgwick on Measure of Damages [9th ed.]; § 897a. Cf. Globe, M. I. & S. Co. v. N. Y. C. & H. R. R. R. Co., 227 N. Y. 58; 1 Street on The Foundations of Legal Liability, p. 459.)

Since there would here have been no liability to the decedent had she survived, it follows that the plaintiff has no case under the death statute.

As to the validity of the defense of limitation of liability we express no opinion. That defense is to be deemed an adequate answer to this insufficient complaint. (Baxter v. McDonnell, 155 N. Y. 83, 100.)

The orders should be reversed, and the motion to strike out the second affirmative defense denied, with costs in all courts to the appellant. The question certified is answered in the affirmative.

Finch, J.

(dissenting). To hold that the complaint as a matter of law should be dismissed amounts to a holding that the defendant may incur no liability even though its neglect is gross and willful and the resulting damage is irreparable. In addition the interpretation placed upon section 130 of the Decedent Estate Law would seem to do violence to the evident purpose of the statute.

Section 130, under which the present action is brought, was enacted to alleviate the harshness of the common law rule that an action for tort does not survive the death of the injured party. Patterned after Lord Campbell’s Act the purpose of the statute was not to enrich the estate of the deceased but to compensate the dependents of the deceased for the pecuniary loss they had sustained by reason of the death. The damages are measured not by the pain and suffering the decedent endured, but by the monetary loss in future earnings and services. The statute incorporates one limitation, that recovery can be had only against a person who “ would have been liable to an action in favor of the decedent by reason thereof if death had not ensued.” The evident meaning of this phrase is to prevent recovery where the decedent himself was guilty of causing his own death or where there had been no breach of duty on the part of the defendant. This it is submitted is the real basis for the limitation.- The condition has reference, of course, not to the loss or injury sustained by him [the decedent], but to the circumstances under which the bodily injury arose, and to the nature of the wrongful act, neglect, or default.” (Tiffany on Death by Wrongful Act [2d ed.], § 63.)

Tested by this interpretation the complaint states a cause of action. If necessary, pain and suffering on the part of the deceased by reason of the negligence of the defendant could be inferred, since it is alleged that death was ultimately caused. But this court not only has never before required such allegations in actions of this kind, but has held that the very presence of pain and suffering is unnecessary to the maintenance of the action. (See Brown v. Buffalo & State Line R. R. Co., 22 N. Y. 191, where death resulted instantaneously; Comstock v. Wilson, 257 N. Y. 231.) It is metaphysical to conjecture on the damages the decedent could have recovered if she had lived; they might well have been substantial, but even if she could have recovered only nominal damages the cause of action in favor of the next of kin is not affected. (Tiffany, supra, § 63. Cf. Decedent Estate Law, § 120.)

Nor does the rule enunciated in Kerr S. S. Co. v. Radio Corp. (245 N. Y. 284) seem to bar recovery here. Even assuming that the contractual rule applies (Cf. Duncan v. St. Lake’s Hospital, 113 App. Div. 68; affd., 192 N. Y. 580; 3 Sutherland on Law of Damages, § 965) and that only such damages can be recovered as were within the “ contemplation of the parties,” this rule would not lead to a dismissal of the complaint. The plaintiff contracted with the defendant for continuous telephone service. Not only is it foreseeable that the telephone may be used to summons a physician to the household in time of need, but such use is commonly desired by the average family. Particularly is this so in rural areas. Indeed, the necessity of a telephone for just such purposes often furnishes a vital reason for the contract of subscription. The contract, moreover, clearly contemplates that the service will be used not only for the benefit of'the subscriber but for his immediate family. To require notice to be given of a " special risk would be to deny recovery in all cases of this kind, since' the very lack of communication which gives rise to the action would prevent the plaintiff from giving notice of the emergency. The telephone contract is in this particular quite different than the contract to send a telegram. (See 3 Sutherland on Law of Damages, § 965, p. 3587.) And in the Kerr Case (supra, p. 292), which involved the transmission of a message in cipher, Cardozo, Ch. J., said: “ A different question would be here if the plaintiff were seeking reparation for a wrong unrelated to the contract, as e. g., for a refusal to accept a message.” Such consequences flowing from the failure to furnish any service at all may fairly be said to be within the contemplation of the parties. (Western Union Tel. Co. v. Lawson, 182 Fed. Rep. 369.) In cases similar to the case at bar the courts of other jurisdictions have generally allowed recovery. (See Chesapeake & Potomac Tel. Co. v. Carless, 127 Va. 5; 23 A. L. R. 943; see, also, Note [1931], 45 Harv. L. Rev. 393 and cases collected in 78 A. L. R. 661.) An unexplained failure to give any service at all not only constitutes gross negligence but requires an answer.

We are not unaware of the fact that a telephone company cannot be made liable for every delay and fault in service. That some incidental delay often occurs is well known, and such delays must be expected. Nor is the telephone company an insurer of service at all times, no matter what the circumstances. But it is a far cry from this to say that the telephone company shall not be liable no matter how gross or willful its interruption of service may be. The complaint as drawn is sufficiently broad to encompass such a situation. The plaintiff should be permitted his day in court to show this and not have his complaint dismissed as a matter of law. The sufficiency of the complaint has been assumed heretofore and it has not been attacked in the courts below.

A breach both of contractual and statutory duty (Public Service Law, §§ 91, 93. Cf. Transportation Corporations Law, § 28) is conceded in the majority opinion as well as the allegation of proximate cause.

A dismissal of the complaint as a matter of law makes it unnecessary at this time to consider the sufficiency of the affirmative defense.

Crane, Ch. J., and Hubbs, J., concur with Loughran, J.; Lehman, J., concurs in result; Finch, J., dissents in opinion in which O’Brien and Crouch, JJ., concur.

Orders reversed, etc.


author: Crouch, J.

text:
    In the Matter of Del Balso Holding Corporation, Appellant, against John McKenzie, as Commissioner of Docks of the City of New York, Respondent.

      (Argued April 14, 1936;
    decided July 8, 1936.)

      Leo Kaplan for appellant.

      Paul Windels, Corporation Counsel (Alfred D. Jahr and Paxton Blair of counsel), for respondent.
   Crouch, J.

The sole question before us is whether or not the city of New York may exact rent as one of the conditions for granting a permit to the petitioner for the construction of a pier upon lands under water in West-chester creek.

The petitioner alleges that it is the owner in fee simple absolute of certain described premises, which include the locus of the proposed pier, and that those premises consist “ of upland as well as land beyond the mean high-water mark and adjacent and in part under Westchester Creek.” The city denies the allegation of ownership. It says, further, that the alleged upland is not in truth upland, but is land under water unlawfully filled in and made fast, the title to which is in the city.

The answer to the question propounded depends upon a determination of the facts at issue under the pleadings as above stated. The order denying a peremptory mandamus was, therefore, proper. If the petitioner is the owner of the land under water upon which the pier is to be built, the city may not, under the guise of its conceded regulatory authority, exact rent. If the city is the owner of the land under water, the petitioner has no right whatever to enter thereon and build a pier, unless it owns adjacent upland. If the petitioner is an upland owner, it has the well-settled riparian right of access by means of a pier to navigable water in front of its upland, subject to the rights of the public. (Town of Brookhaven v. Smith, 188 N. Y. 74; Sage v. Mayor, 154 N. Y. 61.) The exercise of that right is subject to certain prescribed statutory conditions (see inter alia, §§ 83 et seq., and §§ 816 et seq., Greater New York Charter, Laws of 1901, ch. 466), which, however, do not include the exaction of rent. On the contrary, the riparian rights of owners of private property are expressly preserved by the charter; nor could it well have been otherwise.

The order should be modified by directing the issuance of an alternative order of mandamus to determine the rights of the parties, and as so modified affirmed, without costs.

Crane, Ch. J., Lehman, O’Brien, Hubbs, Loughran and Finch, JJ., concur.

Ordered accordingly.


author: Crane, Ch. J. O’Brien, J.

text:
    The People of the State of New York, Appellant, v. Sam Marino, Respondent.
    (Argued April 23, 1936;
    decided July 8, 1936.)

      Martin W. Littleton, District Attorney (Philip Huntington of counsel), for appellant.

      Irving Cohn for respondent.
   Crane, Ch. J.

Section 1308 of the Penal Law relates not only to the receiving of property, knowing it to be stolen, but also to the concealing and the withholding of any such property with like knowledge. Nowhere in this section is there a requirement that the thief must be specified, named or even known. The fact that a party has property which he knows to have been stolen, or receives it knowing it to have been stolen, is a crime, although he may never know who is the thief or from whom the property was stolen. (People v. Wilson, 151 N. Y. 403.)

The difficulty in this case seems to have been in reading our previous decisions, such as People v. Doty (175 N. Y. 164, 168), as though the particular facts of that case had crystallized into a rule of law so that there could never be any dissimilar facts creating the crime. We must always read the decisions with a view of finding the principle which they are trying to enunciate. The rule which this court was trying to express is that other similar transactions are competent evidence to prove the crime of receiving stolen goods, provided there be such a connection of circumstances as that a natural inference may be drawn that if the prisoner knew one article was stolen he would also be chargeable with knowledge 'that another was.” What these circumstances are which lead to this inference can never be known until they happen.

The exact wording of section 1308 of the Penal Law is: “A person who buys or receives any property knowing the same to have been stolen * * * or who conceals, withholds, or aids in concealing or withholding any property, knowing the same to have been stolen, * * * is guilty of a felony * * *. A person who being a dealer in or collector of any merchandise or property, * * * fails to make reasonable inquiry that the person selling or delivering any stolen or misappropriated property to him has a legal right to do so, shall be presumed to have bought or received such property knowing it to have been stolen or misappropriated.”

This defendant was charged with violating this section in having received, concealed and withheld a Buick automobile of the value of more than $500, the property of Joseph Bichelman, which had been stolen, the defendant knowing that the same had been stolen and intending to deprive the owner thereof. He was tried and convicted, and the Appellate Division has affirmed all the facts, as it was justified in doing upon the evidence. Although the Appellate Division reversed, it did so solely upon the law, giving effect to the provisions of section 543-a of the Code of Criminal Procedure, which states that such a reversal is an affirmance of the facts. Therefore, the facts which have been affirmed are that this defendant received, concealed and withheld Joseph Bichelman’s automobile, knowing it to have been stolen and intending to deprive the owner of it. The Appellate Division reversed solely upon the authority of People v. Doty, because evidence. was received showing that the defendant possessed, sold and disposed of other automobiles, knowing them to have been stolen at about the same time and under similar conditions as in the Bichel-man crime, when such evidence failed to show the receiving from the same thief. The strange part of this decision is that there is no evidence at all to show who the thief is or who stole Bichelman’s car. Can it be possible that this crime is not committed when the thief is unknown? Such has not been the ruling of the courts and is contrary to the express provisions of this section of the Penal Law.

The defendant at different times sold four cars to Frank Wicks, one of which was Bichelman’s. These four cars were almost new, were sold to Wicks far below their reasonable value and were subsequently sold by Wicks after user for much more money than he paid the defendant for them. The defendant apparently had no place of business outside of his home in Brooklyn. These transactions occurred in Mineóla, Nassau county. Witnesses proved that the defendant was a dealer in cars.

But the People went further than this and proved that the defendant had sold at or near this time and under similar circumstances stolen cars to others, including Richard Jansen, of Pine Bush, New York, He knew the cars were stolen. In fact, the defendant admitted not only that he was a dealer in cars, but that he dealt in stolen cars, referred to by him and by the witness as hot cars.” This is a term used by criminals to mean stolen cars. Jansen testified: “He [the defendant] said he couldn’t get me that car, that I would have to take a hot car. I couldn’t get my. money back, so I had to take the hot car. * * * He said that he had a Dodge, a 1933 Dodge that he would sell me. He said that the Dodge was hot.”

The evidence as to these other cars was competent. In fact it goes to the very point in question. The manner of sale was similar in all the transactions and they emanated in personal contact with the defendant at his home in Brooklyn. The one element necessary to be proved was that he knew these cars to have been stolen. His own admission goes far to prove this. Likewise, the fact that the defendant also sold, under similar circumstances, stolen cars to others, had an immediate and direct bearing upon the question of his knowledge. In a case of forgery or counterfeit money it has always been one of the chief elements of proof, as bearing upon the defendant’s guilty knowledge, that he possessed, at other times not too remote, other forged or illegal paper. Why there should be any difference in principle simply because the properties passed off are stolen automobiles instead of forged paper or counterfeit money is inexplicable to us. The rule is emphasized in all the cases to be that, to prove guilty knowledge or intent in cases like this, other similar transactions closely connected in circumstances and time with the one in question are competent as evidence tending to prove knowledge of illegal possession.

Thus, in Copperman v. People (56 N. Y. 591, 593) this court said: “Although facts may be proved not connected with the transaction constituting the crime, to establish guilty knowledge, yet they may be regarded as competent because they tend directly to prove an essential element of the crime, to wit, knowledge of a given fact. A familiar instance is the case of passing forged bills or notes. The passing of a counterfeit bank bill is not, per se, a crime, but it is essential that the person should know that it is counterfeit, and hence it has been held competent to show that he had passed on other occasions, or had in his possession, similar bills, because such evidence bears directly upon his knowledge of the character of the bill passed, for which he is indicted; but the strength of such evidence depends upon the number of other bills, and all the circumstances connecting him with them. So it is not per se criminal to receive stolen property, but it is a crime to receive it knowing it to have been stolen.”

In this day when the automobile trade has become so extensive and the exchange or sale of second-hand cars by second-hand dealers so widespread, we can see no reason why the same force of reasoning that prevails regarding the possession and passing of forged bills and notes or counterfeit money does not apply to the possession and passing of stolen automobiles. Especially is this so when the identity of an automobile can always be ascertained and ownership established through the State registration records.

This crime, as before stated (§ 1308), is made out when one withholds property from the true owner knowing the same to have been stolen; it is not necessary that he receive it from the thief or know the thief who stole it. For this reason all that was said in the Doty case cannot apply. The opinion there written was with reference to the particular facts which were the receiving of stolen property from some school boys who had stolen it. When reference was made to the acceptance of property from the same thief on other occasions the court was dealing with a charge which particularly related to the receiving of property from a thief knowing him to be a thief. The particular facts did not relate to the retaining or concealing property, knowing it to have been stolen, without knowing anything about the thief or even having received it from the thief. We call this the crime of receiving stolen property, but as defined by the section (1308), it has many different phases. Even then, as we have above stated, the Doty case was attempting to express a general principle or fundamental rule which permits the proof of other similar transactions in order to establish guilty knowledge. It laid down no hard and fast rule as has been assumed, but leaves it dependent upon circumstances which cannot be foreseen, circumstances which to the ordinary, reasonable mind would immediately suggest and indicate that guilty knowledge must have existed. A reasonable person of ordinary intelligence would rightly conclude that a dealer in cars who had sold three or four stolen cars knew them to have been stolen if he had sold other stolen cars about the same time and referred to them as hot or stolen cars, and cautioned his customer about them.

That the Doty case was molding this rule of law as to other transactions to the particular facts of the case is also evident in that the court refused to follow the restriction in the earlier, cases, that the property in the prior transactions must have been stolen from the same owner. The court expanded the rule, as we must do, to meet new circumstances which have in them such a connection with the charged crime as to tend reasonably to establish guilty knowledge.

The fundamental basis upon which all rules of evidence must rest — if they are to rest upon reason •— is their adaptation to the successful development of the truth. And since experience is of all teachers the most dependable, and since experience also is a continuous process, it follows that a rule of evidence at one time thought necessary to the ascertainment of truth should yield to the experience of a succeeding generation whenever that experience has clearly demonstrated the fallacy or unwisdom of the old rule.” (Funk v. United States, 290 U. S. 371, 381.)

That evidence is competent, showing that a defendant received or held other stolen cars, knowing them to have been stolen, although not received from the same thief or from any thief, finds ample support in the authorities. (People v. Di Pietro, 214 Mich. 507; United States v. Brand, 79 Fed. Rep. [2d] 605; certiorari denied, 56 S. Ct. 381; State v. Cohen, 254 Mo. 437; Beuchert v. State, 165 Ind. 523; State v. Feuerhaken, 96 Iowa, 299; Commonwealth v. Billings, 167 Mass. 283; State v. Habib, 18 R. I. 558; Goldsberry v. State, 66 Neb. 312.)

In People v. Di Pietro {supra) evidence was admitted that the defendant received other stolen cars as part of a scheme or plan to have and deal in stolen cars. The court said: “ ‘ * * * the probabilities of an honest mistake diminish as the number of similar transactions indicating a scheme or system increases.’ ” (p. 511.) And in United States v. Brand (supra, p. 606) the opinion states: “ The competence of such evidence does not depend upon conformity with any fixed conditions, such as upon direct proof of scienter, or the identity of the thief in the earlier instance, or of the victim, or the number of instances in which the accused received stolen goods, or the similarity of the goods stolen. These are all relevant circumstances but not necessary constituents. Nor can we see any basis for distinguishing between knowledge and intent in such cases. The judge must decide each time whether the other instance or instances form a basis for sound inference as to the guilty knowledge of the accused in the transaction under inquiry; that is all that can be said about the matter.” Professor Wigmore, in his work on Evidence (Vol. 1, §§ 324 to 327) takes the same view.

The judges who participated in the Doty case evidently had this breadth of rule in mind and did not intend by their decision or analysis as stated in the opinion to center the proof of prior transactions around the particular facts of the Doty case nor require that the thief had to be known and be the same under all circumstances. This I think is quite evident from the quotation taken from the earlier cases and contained in that opinion: It is unnecessary to say that all these qualifications must exist, but to warrant the introduction of such evidence there must be such a connection of circumstances as that a natural inference may be drawn that if the prisoner knew one article was stolen he would also be chargeable with knowledge that another was.”

The defendant was proved to be a dealer in secondhand automobiles. It is also proved in the case, without contradiction, that he made no inquiries whatever as to the legal right of the person from whom he received the cars to sell or dispose of them. According to this section 1308 he was, therefore, presumed to have received such property, that is, Bichelman’s car, knowing it to have been stolen. The defendant took the stand and denied that he knew any of the people — and there were five or six of them — who had testified against him, or that he had sold them cars, as stated in their evidence. His defense was a flat denial of any and all transactions. These last statements have no bearing upon the point which we have discussed here, and which was the basis of the reversal by the Appellate Division, but they go to show that the guilt of the defendant was established by competent and abundant evidence. It also illustrates the scope of the present section (1308) which now includes this presumption added by amendment. (L. 1928, ch. 354.)

For the reasons here stated, the order of the Appellate Division should be reversed, and the judgment of the County Court affirmed.

O’Brien, J.

(dissenting). In view of the strong evidence against this defendant, the Appellate Division might have been justified in exerting its power under section 542 of the Code of Criminal Procedure, but it did not choose to do so. It reversed for an error of law which we must assume it deemed substantial.

With perfect candor the district attorney concedes that the evidence in this case does not come within the rule announced in Coleman v. People (55 N. Y. 81); Copperman v. People (56 N. Y. 591) and People v. Doty (175 N. Y. 164). In the case last mentioned, at pages 171, 172, this court reviewed the rule in the two former cases and reiterated the doctrine that in every case relating to proof of the receipt of stolen articles, other than the one forming the subject of the indictment, the evidence must show that the defendant received those articles from the same thief.

The district attorney frankly asks us to overrule those cases in so far as they are applicable to stolen automobiles, but does not, on this appeal, urge that a new rule should be extended to stolen articles other than automobiles.

In complying with this request, this court is reversing the Appellate Division for its act in enforcing the doctrine which we have always announced to be the true one. When a court of last resort violates the rule stare decisis, nothing except obscurity can result. Members of the bar will be unable to advise clients, trial judges will be without guide in charging juries, intermediate courts of review must be filled with confusion. The application of general principles will become impossible. If the con-census of competent opinion is that a precedent relating to a rule of evidence is wrong, it should certainly be changed. Perhaps a new canon regulating the admission of evidence in cases similar to the one before us should be established. Such an alteration, however, should, in my opinion, be by statute looking to the future rather than a formulation by judicial process affecting an event which is past.

Lehman, Loughran and Finch, JJ., concur with Crane, Ch. J.; O’Brien, J., dissents in opinion, in which Hubbs and Crouch, JJ., concur.

Ordered accordingly.


text:
    Harriet G. Keene et al., Respondents, v. Frank R. Chambers, Individually and as Surviving Partner of Rogers Peet & Co. of New York City, et al., Appellants.
    (Argued May 18, 1936;
    decided July 8, 1936.)

      Ezra P. Prentice and Charles S. Reilly for appellants.

      Walter A. Lynch and Jerome Weinstein for respondents.
   Crane, Ch. J.

This is an action for rent, taxes and other sums due under a lease of certain premises situate in Chicago, Ill. The defendants assumed the tenant’s obligations under the lease. The rent and taxes for which suit is brought became due and payable at various dates between July 10, 1930, and September 1, 1935. The amount due exceeds $130,000.

The plaintiffs are and at all times since December 10, 1930, have been the owners of a joint life estate in an undivided one-half interest in the leased premises. The lease was made April 19, 1890, by James E. Baker and James E. Baker, Jr., to Frederick M. Atwood, for a period of ninety-nine years. The lease and all its obligations were subsequently assigned to and assumed by these defendants. The fee of the property became vested in James E. Baker, Jr., and Caroline B. Kuehn, who were thereafter owners of an undivided half interest each in the leased premises. The interest of Caroline B. Kuehn passed upon her death to the plaintiffs Harriet G. Keene and Erwin F. Keene during the terms of their natural lives, while those of James E. Baker, Jr., through various mesne deeds and conveyances, passed to the Chicago Title and Trust Company, subject to the life estate of Bertha Kline Baker. The latter, by assignment dated April 24, 1935, assigned and transferred to the Chicago Title and Trust Company all her right, title and interest in and to the provisions of the lease herein mentioned and all the moneys due thereon.

For the purposes of this appeal we find that the plaintiffs are the owners of a joint life estate in an undivided one-half interest in the leased premises. Bertha Kline Baker is vested with a life estate in the remaining half. All her interest in the rents under the lease and income therefrom, she has transferred to the Chicago Title and Trust Company. At the beginning of this action, therefore, the plaintiffs and the Chicago Title and Trust Company were in effect the lessors, entitled to the rents under the lease and all the rights for the enforcement of taxes and other amounts due.

The Chicago Title and Trust Company is an Illinois corporation over which the State of New York has no jurisdiction. The defendants are residents of New York State, over whom the courts of Illinois have no jurisdiction. The plaintiffs have brought this action for the rent and taxes, with interest thereon, but have not joined either as plaintiff or defendant the Chicago Title and Trust Company. The plaintiffs requested this company to join with them in this action but the request was refused. The defendants made a motion to compel the plaintiffs to join the Chicago Title and Trust Company as a party, which motion was denied. The Appellate Division affirmed the order, certifying, however, to this court the following two questions:

1. Is Chicago Title and Trust Company a necessary party to this action?
2. Should plaintiffs be required to join Chicago Title and Trust Company as a party defendant, although it is without the jurisdiction of the Supreme Court of the State of New York and refuses to join?

We answer both these questions in the negative.

Section 194 of the Civil Practice Act is as follows:

“ § 194. Joinder of parties in interest. Of the parties to the action those who are united in interest must be joined as plaintiffs or defendants except as otherwise expressly prescribed in this act. If the consent of any one who should be joined as a plaintiff cannot be obtained he may be made a defendant, the reason therefor being stated in the complaint.”

If this section applies to the plaintiffs7 situation they are barred completely from any remedy and are unable to enforce defendants’ obligations under the lease. The plaintiffs cannot sue in Illinois, where the real property is, as the defendants are not residents of that State. The State of New York has no jurisdiction over the Chicago Title and Trust Company, and an order to bring it in and make it a party in this action would be futile and meaningless. It is apparent, therefore, that this section of the Civil Practice Act has limitations and must be interpreted so as to direct an enforceable act. To command a party to be brought in where there is no process to bring him in and no jurisdiction over him lacks sense. Parties who are united in interest must be joined as plaintiffs or be brought into the action as defendants, pursuant to this section 194 of the Civil Practice Act, where they are within the jurisdiction of the court, so that the judgment may effectually bind them. Where any of such parties are without the State, and cannot be served or brought into the action effectually, they need not be parties, and an order would be improperly granted which directed that they be made parties. This is the interpretation which the courts have given to this section and which we approve. Hagenaers v. Caballero (195 App. Div. 580); Mittendorf v. N. Y. & Harlem R. R. Co. (58 App. Div. 260); Hawley v. Cramer (4 Cow. 717); Peck v. McLean (36 Minn. 228) have ruled the same way. The law has been stated in Ruling Case Law (Vol. 7, § 110, p. 910) as follows: “Likewise, one tenant in common of personal property may separately maintain an action for a wrong done to it, if his cotenants refuse to join with him as plaintiffs, and they are nonresidents of and are without the state.”

If the plaintiffs collect the entire rent they must of course account to their cotenant for the latter’s share. (Gedney v. Gedney, 19 App. Div. 407; affd., 160 N. Y. 471; Ladner v. Rieger, 160 App. Div. 695.)

The order appealed from should be affirmed, with costs, and the questions certified answered in the negative.

Lehman, O’Brien, Hubbs, Crouch, Loughran and Finch, JJ., concur.

Order affirmed, etc.