author: Van Voorhis, J. Desmond, J. Froessel, J.

text:
    In the Matter of the Arbitration between Riverdale Fabrics Corp., Appellant, and Tillinghast-Stiles Company, Respondent.
    Argued November 17, 1953;
    decided February 25, 1954.

      Francis J. Duffy and Hyman A. Ilochman for appellant.
    I. An agreement to arbitrate must be clearly manifested in order to take away from a party his constitutional right to have his controversy determined by the courts. (Matter of Lehman v. Ostrovsky, 264 N. Y. 130; Matter of Philip Export Corp. [Leathertone, Inc.], 275 App. Div. 102; Matter of General Silk Importing Co. [Gerseta Corp.], 200 App. Div. 786, 234 N. Y. 513; Western Assur. Co. v. Decker, 98 F. 381.) II. In the instant case there was no agreement in writing to arbitrate, as required by statute. There was absolutely no meeting of the minds on this question. (Matter of General Silk Importing Co. [Gerseta Corp.], 198 App. Div. 16; Matter of Level Export Corp. [Wolz, Aiken & Co.], 305 N. Y. 82.)

      Melvin Liebowitz, Reuben Golin and Arthur A. Litt for respondent.
    Riverdale is bound by its contract with Tillinghast to arbitrate controversies arising thereunder. (Matter of Level Export Corp. [Wolz, Aiken & Co.], 305 N. Y. 82; Metzger v. Aetna Ins. Co., 227 N. Y. 411; Matter of General Silk Importing Co. [Gerseta Corp.], 198 App. Div. 16; Matter of Bachmann, Emmerich & Co. [Wenger & Co.], 204 App. Div. 282.)
   Van Voorhis, J.

The question is whether the contract entered into between these parties contains an arbitration clause, precluding resort to actions at law or in equity. Westchester County Special Term denied a stay of arbitration. This order was reversed by the Appellate Division, Second Department, which unanimously granted the application for a stay (281 App. Div. 831), in reliance on Matter of Level Export Corp. (Wolz, Aiken & Co.) (280 App. Div; 211), but following reversal of the Level case in the Court of Appeals (305 N. Y. 82), a reargument was granted. Upon reargument, the Special Term order was affirmed by a divided court, which allowed the controversy to proceed to arbitration. (281 App. Div. 983.)

There is a substantial distinction between this contract and the one which was involved in the Level case. The rule is that a party is not to be compelled to surrender his right to resort to the courts, with all of their safeguards, unless he has agreed in writing to do so (Matter of Philip Export Corp. [Leathertone, Inc.], 275 App. Div. 102, 104), and by clear language (Matter of Lehman v. Ostrovsky, 264 N. Y. 130, 132). Although one may by contract bargain away his right to resort to the courts in matters which might be the subject of a civil action (Civ. Prac. Act, § 1448), “ the agreement to do so will not be extended by construction or implication ” (Western Assur. Co. v. Decker, 98 F. 381, 382).

This controversy turns on a sales memorandum of yarn, which contained a printed sentence: This contract is also subject to the Cotton Yarn Buies of 1938 as amended ”. This language evidently referred to regulatory rules adopted by certain well-known trade associations of cotton yarn dealers in the United States. This contract contains no arbitration clause, nor does it mention the settlement of disputes by arbitration. The clause in question is similar to the one in the contract involved in Matter of General Silk Importing Co. (Gerseta Corp.) (198 App. Div. 16) wherein the following statement was made in'the sales memoranda: “ Sales are governed by Baw Silk Buies adopted by the Silk Association of America. ’ ’ The raw silk rules, to which reference was made, contained exclusive arbitration articles and many other detailed provisions concerning the sale of such merchandise. The court held that this language failed to show with sufficient definiteness that the minds of the parties met on arbitration, or that they intended to adopt the rules of the Silk Association of America ‘ ‘ not merely to insure performance of the contract in accordance with those rules, but that in the event of a controversy, it should be arbitrated in accordance therewith.” (Pp. 20-21.) The court said further: ‘1 The parties could have provided for such arbitration without setting forth all or any of the rules of the Silk Association of America if they had merely added to the provision incorporated in the contract to the effect that the sales are to be governed by those rules a provision that in the event of a controversy between the parties it should be arbitrated as provided by the rules, or if the contract had provided in any manner by appropriate phraseology that the reference to the rules was intended to include those providing for arbitration.” (P. 21. Italics from original.) The Special Term order denying application to compel arbitration in the raw silk case was affirmed (198 App. Div. 16), but it contained leave to renew. On renewal, and on a full record showing that the rules provided that All differences arising between buyer and seller must be submitted to the Arbitration Committee of the Silk Association of America ” and that both parties were members of the Association, the petition to compel arbitration was again denied at Special Term, and its order was unanimously affirmed by the Appellate Division (200 App. Div. 786) and by the Court of Appeals (234 N. Y. 513).

That case is in point here. It was distinguished in the opinion in the Level case, by stating that the phraseology in the sales note in the General Silk Importing Co. case “ indicated that the parties had not clearly expressed an intention that the raw silk rules should apply to anything more than the completion of sales under the agreement.” (305 N. Y. 88.) The Level contracts were in the form of salesnotes, each of which contained a clause reading: “ This Salesnote is subject to the provisions of Standabd Cotton Textile Salesnote which, by this reference, is incorporated as a part of this agreement and together herewith constitutes the entire contract between buyer and seller.” The standard cotton textile salesnote was thus incorporated verbatim by reference, which contained an exclusive arbitration clause. The Level opinion pointed up this distinction by stating further at page 86: “ The effect of the foregoing contract provisions was to adopt, and to integrate into each purchase agreement, the terms of the standard cotton V textile salesnote.”

The present contract contains no “incorporation” clause, and is almost identical with the language of the memorandum in Matter of General Silk Importing Co. (Gerseta Corp.), which was distinguished in the Level case. Paraphrasing what was there said of the Silk Association contract, these parties are not deemed necessarily to have contemplated anything more than that the cotton yarn rules should apply to the completion of sales under the agreement.

The intent must be clear to render arbitration the exclusive remedy; parties are not to be led into arbitration unwittingly through subtlety. The intention to do that is reasonably clear from the draftsmanship of the cotton yarn rules, which aimed to avoid mentioning arbitration in the sales memoranda themselves, where the contracting parties could see it. This could have been done briefly, since no set form of words is required if the intent to arbitrate is made clear. Nevertheless, these rules were elaborately drafted so as to state that a clause contained in a sales memorandum which says “ ‘ This Contract is subject to the provisions of the Cotton Yarn Rules,’ ” means that “ such rules become a part of the contract ”, and that “ By this reference the 1 Cotton Yarn Rules ’ are incorporated as a part of an agreement and altogether therewith constitutes the entire contract between buyer and seller. No variation therefrom shall be valid unless accepted in writing.” Rule 31 contains an elaborate exclusive arbitration clause. All of this awaited the / unwary trader if he assented to the clause that the contract would be subject to the Cotton Yarn Rules.

If this clause, or a much simpler one, had been set forth in the memorandum of sale, unquestionably arbitration would have been the exclusive remedy. If part of the care exhibited in drafting the rules had been used in mentioning arbitration in the contract, there would be no difficulty in affirming the order appealed from. Instead, the form of words favored by these trade associations appears to have been designed to avoid any resistance that might arise if arbitration were brought to the attention of the contracting parties as the exclusive remedy in case of disputes.

The order of the Appellate Division and that of Special Term should be reversed, and appellant’s motion to stay arbitration granted, with costs in all courts.

Desmond, J.

(dissenting). My dissent is not prompted by any dissatisfaction with the result arrived at here — I unsuccessfully urged a similar result, from construction of similar language, in my dissent, a year ago, in the Matter of Level Export Corp. (Wolz, Aiken & Co.) case (305 N. Y. 82). What troubles me about this present decision is that this court, without any reargument or overruling of that very recent Level case ruling, now puts the opposite construction on language, in the contract between these parties, which has the same meaning as the language in the salesnote in the Level case. What is now the law as to whether a businessman can make his agreement subject to arbitration by general references therein to trade association rules which, in fact, make all disputes arbitrable?

We now have three decisions of this court on the subject: Matter of General Silk Importing Co. (Gerseta Corp.) (234 N. Y. 513), Matter of Level Export Corp. (Wolz, Aiken & Co.) (305 N. Y. 82, supra), and this case. The Gerseta contract said: “ Sales are governed by Raw Silk Rules adopted by the Silk Association of America ’ ’ and these 1 ‘ Raw Silk Rules ’ ’ made arbitration compulsory, but the courts said that this reference to the rules did not bind to arbitration. In the Level case, more words were used, but to the very same effect: ‘ ‘ This Salesnote is subject to the provisions of Standard Cotton Textile Sales-note which, by this reference, is incorporated as a part of this agreement and together herewith constitutes the entire contract between buyer and seller.” The Standard Cotton Textile Salesnote ” provided, in one of its terms, for arbitration of disputes. Although that Level salesnote did not mention arbitration, any more than did the contract in Gerseta, this court held that the parties had agreed to arbitration, and must arbitrate. Now, in the present case, we have this form of reference to outside rules which require arbitration: “ This contract is also subject to the Cotton Tarn Rules of 1938 as amended ”.

In none of the three contracts (Gerseta, Level and the one here) was there any actual mention of arbitration, but each contract was in terms made subject to an outside, unattached document which, on inspection, would have been found to contain a conventional arbitration clause. In each instance, by variant phraseology, the contracting party was warned that the transaction expressed in the contract was subject to certain identified but not otherwise described rules.

The Level case salesnote failed, just as did the contract here, to include “ clear language ” (Matter of Lehman v. Ostrovsky, 264 N. Y. 130) binding the parties to arbitrate. The words used in one instance were no more or less subtle, artful or devious than in the other. If one set of words was a trap for the unwary or if, on the contrary, it was a fair warning to look at the rules, then, whichever of those two views we take, we should take the same as to the same-meaning words in the other instance. In short, we should either overrule the Level case, or follow it.

The order should be affirmed, with costs.

Froessel, J.

(dissenting). I concur with Judge Desmond for affirmance. In Matter of General Silk Importing Co. (Gerseta Corp.) (234 N. Y. 513) decided in 1922, the crucial provision read: “ Sales are governed by Raw Silk Rules adopted by the Silk Association of America.” (Emphasis supplied.) In Matter of Level Export Corp. (Wolz, Aiken & Co.) (305 N. Y. 82) where the “ Salesnote ” was made subject to the provisions of Standard Cotton Textile Salesnote ”, we pointed out (p. 88) that the court in the Gerseta case “ indicated that the parties had not clearly expressed an intention that the raw silk rules should apply to anything more than to the completion of sales under the agreement ” (emphasis supplied). Here, the reference is not to “ sales ” but to “ This contract ”, a far broader term, which in my opinion brings it within the holding of the Level case.

Lewis, Ch. J., Conway and Fuld, JJ., concur with Van Voorhis, J.; Desmond, J., dissents and votes for affirmance in an opinion in which Dye, J., concurs; Froessel, J., dissents and votes for affirmance in a separate memorandum.

Orders reversed, etc. [See 307 N. Y. 689.]


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    The People of the State of New York, Respondent, v. James J. Breslin, Appellant.
    Argued November 24, 1953;
    decided February 25, 1954.

      Thomas J. Mackell for appellant.
    I. Since the investigation of the grand jury was directed against appellant, his refusal to answer a question about his own possible culpability was lawful and the indictment for contempt should have been dismissed. (People v. Mondon, 103 N. Y. 211; People v. Gillette, 126 App. Div. 665; People v. Seaman, 174 Misc. 792; People v. Luckman, 164 Misc. 230; People v. Rauch, 140 Misc. 691; People v. Bermel, 71 Misc. 356; People v. Ferola, 215 N. Y. 285.) II. No statutory immunity from prosecution for every possible crime existed for defendant at the time he claimed his privilege against self incrimination. (Abrams v. United States, 64 F. 2d 22; People v. Anhut, 162 App. Div. 517, 213 N. Y. 643; Matter of Doyle [Hofstader], 257 N. Y. 244; People v. Grossman, 145 Misc. 781; People v. Clenner, 159 Misc. 860; Heike v. United States, 227 U. S. 131.) III. Neither the presiding judge in the court nor the prosecutor could lawfully confer immunity upon defendant for incriminating testimony which they might insist that he give. (Ex parte Irvine, 74 F. 954; Aaron Burr’s Case, Fed. Cas. No. 14,692e; Abrams v. United States, 64 F. 2d 22; People ex rel. Lewisohn v. O’Brien, 176 N. Y. 253; People ex rel. Taylor v. Forbes, 143 N. Y. 219; People v. Priori, 164 N. Y. 459; People v. Richter, 182 Misc. 96.) IV. Insufficiency of evidence and errors of the trial judge in charging the jury, refusing to charge as requested and sentencing appellant require reversal of the conviction. (People v. Walker, 198 N. Y. 329; People v. Fitz-Gerald, 195 N. Y. 153; People v. Foster, 204 App. Div. 295, 236 N. Y. 610; People v. Best, 253 App. Div. 491; People ex rel. Hofsaes v. Warden of City Prison, 302 N. Y. 403; Matter of Goodman v. Sala, 268 App. Div. 826, 293 N. Y. 761.) Y. The conviction violates the due process and privileges and immunities clauses of the Fourteenth Amendment of the Constitution of the United States. (Prudential Ins. Co. v. Cheek, 259 U. S. 530; Gitlow v. New York, 268 U. S. 652; Near v. Minnesota, 283 U. S. 697; Wolf v. Colorado, 338 U. S. 25; Rochin v. California, 342 U. S. 165; United States v. Morton Salt Co., 338 U. S. 632; Wieman v. Updegraff, 344 U. S. 183; Chambers v. Florida, 309 U. S. 227; Ashcraft v. Tennessee, 322 U. S. 143; Malinski v. New York, 324 U. S. 401.)

      Miles F. McDonald, District Attorney (Aaron E. Koota and Julius Eelfand of counsel), for respondent.
    I. The privilege against self incrimination was not available to appellant before the grand jury. Therefore, his refusal to answer predicated upon the alleged privilege was legally without warrant. (Matter of Grand Jury of Co. of Kings [Nicastro-Chadeayne], 279 App. Div. 915, 303 N. Y. 983; People ex rel. Hofsaes v. Warden of City Prison, 277 App. Div. 398, 302 N. Y. 403; People ex rel. Coyle v. Truesdell, 259 App. Div. 282; Matter of Seymour v. Larkin, 254 App. Div. 215; People v. Reiss, 255 App. Div. 509, 280 N. Y. 539; People v. Riley, 129 Misc. 373.) II. The trial court properly ruled on the legality and propriety of the question propounded to appellant in the grand jury as one of law. (People ex rel. Hegeman v. Corrigan, 195 N. Y. 1; People v. Samuels, 284 N. Y. 410; People v. Redmond, 179 App. Div. 127; People v. Miro, 151 Misc. 164; Wood v. People, 59 N. Y. 117; People v. Barbuti, 207 App. Div. 285; Luse v. United States, 49 F. 2d 241.) III. The refusal of appellant to answer the question after he was directed so to do by the County Court was patently contumacious. (People ex rel. Taylor v. Forbes, 143 N. Y. 219; Matter of Finkel v. McCook, 247 App. Div. 57.)
   Per Curiam.

In view of the constitutional provision that no person “ shall * * * be compelled in any criminal case to be a witness against himself ” (N. Y. Const., art. I, § 6), defendant Breslin was free to refuse to answer questions put to him when he appeared before the grand jury, on the ground that his answers might tend to incriminate him, unless, in return for the required testimony, he was granted an immunity * * * so broad that the risk of prosecution [was] ended altogether (Matter of Doyle, 257 N. Y. 244, 250-251.) Such was the situation here; the provisions of the applicable statutes, prior to their amendment in 1953 (Penal Law, §§ 381, 584, 996), as well as today (L. 1953, ch. 891), cloaked defendant with an immunity as broad as the privilege guaranteed by the Constitution. In other words, a witness compelled to testify before a grand jury inquiring into the commission of crimes of bribery, conspiracy or gambling obtained a full and complete immunity from prosecution in this state for any crime disclosed or revealed by his testimony. (See, e.g., Matter of Doyle, 257 N. Y. 244, supra; Matter of Rouss, 221 N. Y. 81; Matter of Grand Jury of Co. of Kings [Nicastro-Chadeayne], 279 App. Div. 915, affd. 303 N. Y. 983; People v. Florentine, 276 App. Div. 730; People ex rel. Coyle v. Truesdell, 259 App. Div. 282; People v. Reiss, 255 App. Div. 509, affd. 280 N. Y. 539; People v. Cahill, 126 App. Div. 391, affd. 193 N. Y. 232.) It follows, therefore, that defendant was not entitled to remain silent, even if, as he urges, he believed himself one of the targets of the investigation rather than a mere witness. His refusal to answer the questions posed, after the court advised him that he had immunity and directed him to answer, constituted basis for the contempt of court conviction.

The judgment should be affirmed.

Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Froessel and Van Voorhis, JJ., concur.

Judgment affirmed.


author: Desmond, J. Conwat, J.

text:
    Loch Sheldrake Associates, Inc., Appellant, v. Gussie Evans, Respondent.
    Argued October 19, 1953;
    decided February 25, 1954.

      Lazarus I. Levine for appellant.
    I. The privilege to draw water from Loch Sheldrake Lake is an easement appurtenant to the “ Mill Lot ” which can be used only on and in connection with the mill lot and cannot be extended to other parcels to which it is not appurtenant. (Saratoga State Waters Corp. v. Pratt, 227 N. Y. 429; McCullough v. Broad Exch. Co., 101 App. Div. 566; Houghtaling v. Stoothoff, 170 Misc. 773, 259 App. Div. 854; Atlantic Mills of Rhode Is. v. New York Central R. R. Co., 221 App. Div. 386, 248 N. Y. 535.) II. The water easement reserved must be construed most strongly against defendant. Where doubt exists as to an easement for the use of water, the terms thereof will be construed as a limitation of quantity rather than as a restriction as to use. In any event, it may not be construed to authorize its use elesewhere than on the dominant tenement. (French v. Carhart, 1 N. Y. 96; Blackman v. Striker, 142 N. Y. 555; McKinnon v. Bliss, 21 N. Y. 206; Wilson v. Ford, 148 App. Div. 307; Kitching v. Brown, 180 N. Y. 414; Craig v. Wells, 11 N. Y. 315; Wilson v. Ford, 209 N. Y. 186.) III. The easement reserved is not exclusive. (Borst v. Empie, 5 N. Y. 33.) IV. The Appellate Division erred in reversing the order striking out the oral testimony as to the sale of water to Evans and in reinstating the same. (Morgan v. Clark, 25 Hun 189; Leary v. Corwin, 63 App. Div. 151; Johnston v. Garvey, 139 App. Div. 659, 201 N. Y. 548; Sanford v. Ellithorp, 95 N. Y. 48; Swick v. Sears, 1 Hill 17; Vrooman v. King, 36 N. Y. 477; Williams v. Williams, 142 N. Y. 156; Tuscarora Club v. Brown, 215 N. Y. 543.)

      F. Walter Bliss, Morris M. Oppenheim and Robert II. Ecker for respondent.
    I. The rights of the respective parties must be determined solely in accordance with the provisions of the deed creating the right involved without resort to other deeds between different parties. (Borst v. Empie, 5 N. Y. 33; Wilson v. Ford, 209 N. Y. 186; French v. Carhart, 1 N. Y. 96; Bridger v. Pierson, 45 N. Y. 601; Blackman v. Striker, 142 N. Y. 555; Craig v. Wells, 11 N. Y. 315; Fulton Co. Gas & Elec. Co. v. Hudson Riv. Tel. Co., 200 N. Y. 287; Matter of New York State Labor Relations Bd. v. Holland Laundry, 294 N. Y. 480.) II. Defendant has the right to impound the waters of the lake and to raise the same to high-water mark and to draw the same to low-water mark and use the water so withdrawn for any purpose, and, at the very least, she has the right to use such water in the quantity and manner that she is now using. (Casler v. Shipman, 35 N. Y. 533; Hammond v. Antwerp Light & Power Co., 132 Misc. 786; Comstock v. Johnson, 46 N. Y. 615; Hall v. Sterling Iron

      & Ry. Co., 148 N. Y. 432.) III. Defendant has not exceeded her rights even if they constitute an easement appurtenant to the mill lot. (O’Neil Supply Co. v. Petroleum Heat & Power Co., 280 N. Y. 50.) IV. There was no error in the reversal of the order of the trial court which struck out the oral testimony as to the sale of water by Divine to Evans at the time of the execution by Divine of the deed to Greenspan and others, and in the reinstatement thereof. (French v. Carhart, 1 N. Y. 96; Bridger v. Pierson, 45 N. Y. 601; Blackman v. Striker, 142 N. Y. 555.)
   Desmond, J.

Our question is as to the meaning and effect of a reservation of water rights appertaining to a natural lake or pond known as Loch Sheldrake, in Sullivan County. Into a deed, which was given in 1919 to Greenspan and others (predecessors of plaintiff) by persons named Divine, and which conveyed to plaintiff’s predecessors the whole of Loch Sheldrake and all its shores, there was written this language: “ The parties of the first part hereby expressly except and reserve from this conveyance the right and privilege of damming the Sheldrake Lake or Pond and the outlet thereof, and of impounding the waters of said Lake or Pond and raising and drawing the same, together with the right of ingress and egress for the purpose of constructing, repairing and maintaining the said dam, or any part or portion thereof, and any and all conduits, raceways or pipes connected therewith or leading therefrom, which now exist or may hereafter be constructed. Such waters, however, shall not be drawn lower than the natural low water mark of the said Lake or Pond, and they shall not be raised higher than the normal or natural high water mark of said Pond, except that in case of unusual or extraordinary flood the same may be impounded for not to exceed forty-eight (48) hours at any one time.”

All the rights thus reserved were, in 1927, conveyed, together with a so-called “ mill lot ” some distance south of Loch Sheldrake, by the Divines, to Isidore Evans, defendant’s husband and predecessor in title. Beginning about 1915, and continuously since then, Mr. and Mrs. Evans have operated a large summer hotel on other lands owned by them, not acquired from the Divines, south of the mill lot, and about a half mile south of Loch Sheldrake. Many years before any of the deeds herein referred to were given, a dam had been built, in an outlet of Loch Sheldrake, by the Divines, and from it, through a pipe, water was carried by gravity to and for a mill formerly operated by the Divines on the mill lot ”, the water flowing, after such use, out of the mill’s tailrace into a brook. Undoubtedly, the Divines made the 1919 reservation of the Loch Sheldrake water rights, because of their then ownership and operation of the mill, but the reservation itself not only did not limit the water diversion to mill uses (it does not mention either the mill lot or the mill), but, on the contrary, the reservation (supra) embodied its own sole limitation, that is, that the dam be so used that the waters of the lake will be not drawn below low-water mark, or flooded above high-water mark. Before and after the giving by the Divines of the 1919 deed first above mentioned, in which the water rights were reserved, the Divines at times sold, to Mr. and Mrs. Evans, for use at their hotel, water which had been carried by the outlet pipe to the mill lot. After the hotel owners had acquired the mill lot, the mill operations were (in about 1935) discontinued and, ever since, large quantities of water, drawn from the lake through the pipe to the old mill lot, have been piped further on into the hotel grounds for use at the hotel by defendant.

This suit was brought to obtain, for plaintiff, present owner of the lake and its shores, a declaratory judgment that defendant, by the water right reservation (supra), obtained no more than an easement which was appurtenant to the mill lot and which, as plaintiff asserts, permitted the use of the water for the now discontinued mill uses only. Plaintiff demanded an injunction and money damages, also. Defendant’s opposing position, with which we will agree herein, is, as expressed in her answer, that by her succession to the water rights reserved in the 1919 deed, she is entitled to the sole, absolute and free use of the waters of Loch Sheldrake between the low and high water marks for the benefit of her business and business properties.”

The trial court came to the conclusion “ that the reservation of the right and privilege to the use of the waters of Loch Sheldrake was a reservation in connection with and appurtenant to the Mill lot and for which property only the privilege reserved was intended ”, that defendant, succeeding to the rights of the Divines under that reservation, has no right to draw or use the lake waters except for mill or manufacturing uses on the mill lot, and that such rights as defendant has are not exclusive and do not exclude plaintiff from drawing and using the lake waters. The judgment, entered after trial, perpetually restrained defendant from drawing water other than for mill purposes.

On defendant’s appeal to the Appellate Division, that court took a view of the case much more favorable to her. It concluded that the 1919 reservation was not limited, expressly or by implication, to use of the water for mill purposes, and that, while defendant’s assertion of an exclusive right to use the water for any purpose whatsoever is perhaps too broad, “ she has the right ’ ’, said the Appellate Division, ‘ ‘ to use the water for the purposes the Divine family used the same for at the time they conveyed the lake to Greenspan and others ” (282 App. Div. 51, 58), that is, at the time of the giving of the 1919 Divine-Greenspan deed containing the reservation.

Plaintiff alone appealed to this court, so we are powerless to modify the judgment, in defendant’s favor. Despite holdings or seeming holdings by both courts below, and concessions or seeming concessions made at one time or another by both parties, that the reservation quoted in the first paragraph hereof from the 1919 deed, created an <c easement appurtenant ” to the mill lot only, we do not think that such was the result. We think that what the grantors Divine reserved, and what defendant’s husband, and defendant, as his successor, got by subsequent grant from the Divines was not, in strictest terms, an easement at all, but an interest in the Loch Sheldrake lands, in the nature of a right to take a profit ” from those lands (see Huntington v. Asher, 96 N. Y. 604, 609; De Witt v. Harvey, 70 Mass. 486, 488, 489; Goodrich v. Burbank, 94 Mass. 459, 461; French v. Morris, 101 Mass. 68, 71). Such a right, not appurtenant to any other lands, may be used by its owner at any place or in any manner. As the Supreme Judicial Court of Massachusetts pointed out in Goodrich v. Burbank (supra, p. 462): “ Eights of water duly granted by deed, not appurtenant to any particular parcel of land, may be used by the owner at any place or in any manner, so long as he does not interfere with, or impair the rights of others ”. In that same decision, the Massachusetts court recognized ‘1 the right to take a certain quantity of water from a mill pond as a distinct and substantive subject of grant, without restriction as to its use at any designated place ”. (P. 462.) The New York cases above cited are in agreement with those statements of law.

The briefs here join in debate as to whether the Divine-Greenspan 1919 deed reservation created an ‘ ‘ easement appurtenant ” or an “ easement in gross If we are to speak with strictest accuracy, there is no such thing as an “ easement in gross ” (although the phrase enjoys respectable usage, as in Wilson v. Ford, 209 N. Y. 186, 196, and other New York opinions), since an easement presupposes two distinct tenements, one dominant, the other servient (Rangeley v. Midland Ry. Co., L. R. 3 Ch. 306, 309, Eng.; Pierce v. Keator, 70 N. Y. 419, 421). Obviously, the reservation we are construing was not the sort of mere personal, nonassignable, noninheritable privilege or license sometimes loosely described as an “easement in gross ” (see Saratoga State Waters Corp. v. Pratt, 227 N. Y. 429, 443). What the Divines reserved in their deed to Greenspan and his associates was an absolute right to take profit or produce from the land conveyed, a right which was capable of being conveyed in gross and was so transferred by deed to defendant, and is now held, by defendant, without reference to use on any particular lands (Huntington v. Asher, supra, and see Saratoga State Waters Corp. v. Pratt, supra, pp. 443-445). Of course, such a right to take water from a distant source might, by other and appropriate kinds of verbiage, be so granted as to be appurtenant to specific lands separated from the source of supply (Cady v. Springfield Water Works Co., 134 N. Y. 118, 121). But a reservation or grant in a deed, like every other contract “ must be construed according to the intent of the parties, so far as such intent can be gathered from the whole instrument, and is consistent Avith the rules of law (Real Property Law, § 240, subd. 3). It is only when language used in a conveyance “ is susceptible of more than one interpretation ” that the courts Avill look into surrounding circumstances, the situation of the parties, etc. (French v. Carhart, 1 N. Y. 96, 102; Clark v. Devoe, 124 N. Y. 120, 124; Wilson v. Ford, supra, p. 196, and authorities there cited). The settled rule for the construction of such instruments is that all evidence must be excluded which is offered “ to vary, explain or contradict a written instrument that was complete in itself and without ambiguity in its terms ” since, when words in a deed ‘ have a definite and precise meaning, it is not permissible to go elsewhere in search of conjecture in order to restrict or extend the meaning” (Uihlein v. Matthews, 172 N. Y. 154, 159, and cases cited). That is the first rule of construction, and in this case we need no other. The reservation in the 1919 Divine-Greenspan deed, in plain words of common use reserved from the conveyance, the right and privilege ” of damming the lake and its outlet, of impounding its waters “ and raising and drawing the same ”, subject to two conditions only, that is, that the waters should not be drawn lower than the lake’s natural low-water mark or raised higher than its natural high-water mark. In that reservation there was no ambiguity whatever, and so it was not necessary or permissible in this lawsuit to look beyond the deed itself for evidence which might suggest a lesser meaning. Obviously, no outside evidence could properly be taken as to the parties’ intent concerning the amount of water to be drawn off, since the reservation itself, in its references to low- and high-water marks, states its own precise quantitative limitations.

Plaintiff’s contention that the reservation resulted in the creation not of any absolute right but of an easement appurtenant to the mill lot only, is not based on anything in the Divine-Greenspan deed itself, but on the terms of an entirely different deed made by the Divines in 1918 to one Le Boy. That conveyance passed title, from the Divines to Le Boy, to a piece of land lying south of the lake property and between it and the mill lot, and not including any part of either of those two parcels. The grantors Divine, then still owning the lake and its shores to the north of the lands deeded to Le Boy, and the mill lot to the south of Le Boy’s parcel, excepted from the Le Boy grant the right to divert the outlet waters which ran from the lake and across the premises deeded to Le Boy, for the use and operation of the mill and turning shop and other manufacturing purposes ” on the mill lot adjoining the Le Boy piece to the south, and the right to carry the diverted waters through Le Boy’s land in pipes or conduits, etc. In other words, the Divines originally owned the lake and its shores (northerly piece), the mill lot (southerly piece) and a middle piece between those two, which middle piece they sold to Le Boy before they sold the lake to Greenspan and the mill lot to Evans. In the Le Boy deed, unlike the later Greenspan deed, the Divines reserved a true easement, expressly stated as being appurtenant to the mill lot, to run a pipe through the Le Boy lands to carry the waters from the Divines ’ lake to the Divines ’ mill lot. Clearly, that Divine-Le Boy exception or reservation set up a true easement appurtenant, but that deed is not in the chain of title (to the lake lands) which we are examining and is not mentioned or referred to in the later (1919) Divine-Greenspan reservation. As the Presiding Justice put it in his opinion for the Appellate Division (p. 57): “ The Divines were not bound by the language of a separate easement, created by a different deed, and for a different purpose, at a time when they could have used all the water in the lake if they so desired ’ ’. It would be fatuous to deny that the Divines in their 1919 reservation of water rights, were thinking of the easement they had already carved out of their grant to Le Boy, to carry waters over Le Boy’s lands and for the Divine mill to the south. But, in the later Divine-Greenspan reservation, the reservees fettered themselves with no such limitations as are found in the Le Boy easement. In the Greenspan deed the Divines retained, and surely they had the right to reserve, an absolute, total and unlimited right to draw off, not for any particular purpose or for use at any particular place, the lake waters down to low-water mark. The Divine-Le Boy deed displays a background, and supplies a reason, for the Greenspan reservation, but, by settled rules, it cannot vary it. Even if we were to read the Divine-Greenspan deed as stating (and it does not state) the purpose or reason for the reservation, such a statement alone would not limit the otherwise absolute character of the reservation (see Borst v. Empie, 5 N. Y. 33, 40; Lindenmuth v. Safe Harbor Water Power Corp., 309 Pa. 58).

Since we hold that the Divine-Greenspan reservation is non-ambiguous, it is unnecessary for us to discuss the question, as to which the courts below differed, of the admissibility of certain testimony tending to fix the time when water was first sold by the Divines for use at defendant’s hotel.

The views stated herein would, logically, lead to a conclusion, more favorable to defendant than the judgment appealed from, since our views would produce a holding that the right to draw off water in the lake is in defendant to the exclusion of plaintiff, and that there is no applicable limitation at all as to the purpose of such use. However, the appeal is by plaintiff alone, so we affirm.

The order should be affirmed, with costs. Of the questions certified to us by the Appellate Division, the first should be answered in the negative, the second not answered.

Conwat, J.

(dissenting). The view adopted by the court leads of necessity to the conclusion that plaintiff, the owner of Lake Sheldrake, has no right whatever to use the waters thereof, save, perhaps, for such relatively meagre purposes as boating and aesthetic enjoyment. By the decision now rendered, defendant is in effect accorded the exclusive right to draw water from the lake down to the natural low-water mark and thus is the only person who may draw any water from the lake.

We fear that, in focusing attention upon the reservation in question, the majority fails to give effect to the deed as a whole and overlooks the fact that the Divines, by the Greenspan deed, granted some water rights to plaintiff’s predecessors in title. That deed conveyed to plaintiff’s predecessors the lake and lands thereon abutting together with whatever water rights the * * * [the Divines] may have in and to the said Sheldrake Pond and the waters thereof, that are not hereinafter reserved or excepted.” (Emphasis supplied.) There then followed the disputed reservation quoted in the majority opinion, page 301. It is unusual that an owner of a lake should have no right to take and use any of its waters but it is more unusual, to say the least, that in the same deed there should appear a reservation now held to be coextensive with a grant therein contained. Before, if ever, such a construction be placed- upon a deed, it should appear clear beyond peradventure that such was the purpose of the parties. The language quoted and the absence from the reservation of phraseology compelling the conclusion that an exclusive right to draw water was retained by the grantors, persuade us that both parties were to have some right to draw and use the waters of the lake. This is made more clear by the fact that the Divines were the remote common grantors of both plaintiff and defendant.

The reservation adverts to pipelines ‘ ‘ tohich now exist or may hereafter be constructed ”. (Emphasis supplied.) Those words and those above discussed present at least an ambiguity in that the language used is susceptible of more than one interpretation. That being so, we must invoke the well-entrenched rule of construction that a deed shall be read most favorably to the grantee, the plaintiff’s predecessor. (Matter of City of New York [Bronx Parkway], 209 N. Y. 344, 347; Blackman v. Striker, 142 N. Y. 555, 560.) It is proper, too, in such a case to inquire as to the surrounding circumstances existing when the contract was entered into, the situation of the parties and the subject matter of the instrument. (Wilson v. Ford, 209 N. Y. 186, 196.) Both courts below considered such circumstances. Both parties agreed in both courts that the right was appurtenant to the Mill Lot. The defendant submitted to both courts a proposed conclusion of law that the right reserved was an easement, by reservation, for the benefit of the Mill Lot ” and conceded in her brief in the Appellate Division (p. 31) that it was appurtenant ” to the Mill Lot. The Appellate Division stated that the parties to the action agreed that the proper construction of the Greenspan deed was that an easement appurtenant to the Mill Lot was intended. That was the theory upon which the Appellate Division decided the case.

Proof was offered by both plaintiff and defendant, without objection by either, for the purpose of resolving the ambiguity and to establish the circumstances surrounding the execution of the deed. Parties may try a case upon their own theory and upon submission of their own evidence. The court must then decide the case upon such evidence. This was done by both the Trial Term and the Appellate Division and the parties may not change their position thereafter, and we do not think that this court may now disregard the theory upon which the case was tried, the proof submitted by the parties, and the affirmed findings below. In effect there was a concession by the parties that there was ambiguity in the deed and that the surrounding circumstances were relevant and material. We do not think that it is permissible now to construe the deed without reference to the proof on the trial. As we said in Flora v. Carbean (38 N. Y. 111, 113): “ It is not competent for the respondent to insist on this appeal that the evidence offered to show that the land of the plaintiff over which the right of way is claimed by the father of the defendant, belonged to Van Rensselaer when the use of the way began, was inadmissible. It was received, and, being received, the plaintiff had a right to rely upon it. If testimony tending to establish a material fact, although incompetent in its nature, is received without objection, or if, as in this case, it being objected to, is received notwithstanding the objection, the party has a right to insist upon the facts shown thereby.” (Emphasis supplied.) (See to the same effect, Matter of Findlay, 253 N. Y. 1, 11; Witmark v. New York Elevated R. R. Co., 149 N. Y. 393, 399; Crane v. Powell, 139 N. Y. 379, 384-385; Dias v. United States, 223 U. S. 442, 450.)

As was said by the Appellate Division, the existing pipelines mentioned in the reservation obviously are those extending from the lake to the mill operated by the Divines upon the Mill Lot at the time of the giving of the deed. Thus, the reservation does, in effect, make reference to the mill. Also noted by the Appellate Division was the fact that the Divines retained no lands abutting on the lake. The Mill Lot while not abutting was in close proximity, with pipes connecting it to the lake. Both Appellate Division and Trial Term found, and we agree, that the rights reserved were reserved in connection with and were appurtenant to the Mill Lot. And the majority too state that, Undoubtedly, the Divines made the 1919 reservation of the Loch Sheldrake water rights, because of their then ownership and operation of the mill * *

The Appellate Division in its opinion, which is referred to in the order under review, observed that the Divines in making the reservation had as their purpose the retention of water rights in conformity with then existing uses. The Divines were engaged at the time of the conveyance in selling some water, to the Evans Hotel but the water so sold was merely tail race water, i.e., water discharged after use in the mill. Hence, to continue that use, the Divines needed only to reserve a right to draw such water as was required for their mill. And, that, in light of the circumstances, was the true purpose of the reservation and the reason for the mention of the pipelines, quoted (supra).

The situation is no different from that which would obtain had the deed been more artfully drawn and expressly recited that the Divines reserved a right to draw water for the mill. In that case and in the absence of a clear expression of a contrary intent, mention of the mill would be properly understood as fixing the quantity of water which could be drawn and not as a limitation upon the use to which it could be put or the place in which it could be used. Numerous authorities to that effect are cited in the Appellate Division opinion. Although the right reserved thus be of the kind commonly considered appurtenant to a dominant tenement or as in some manner connected therewith, the same rule should be applicable in reason and on principle since, where a quantitative restriction is thus established, limitations as to method or place of use of the water needlessly restrict benefits otherwise redounding to the holder of the water right and to the 'community as a whole since the absence of such limitations does not enlarge the burden imposed upon those subject to the right. (See Gould on Waters [3d ed.], § 320, p. 612; 3 Farnham on Waters and Water Rights, § 764, p. 2286; Comstock v. Johnson, 46 N. Y. 615.) Thus, it is written in Gould on Waters (§ 320): When the easement is of a certain quantity of water, the owner is not bound to use it in a particular manner, though the purpose for which it is used is mentioned in the grant. He may use the water in a different manner or at a different place, or increase the capacity of the machinery which is propelled by it, without affecting his right, if the quantity used is not increased and the change does not prejudice the rights of others. This rule applies both to reservations and grants.”

Consequently, we are of the view that defendant here is entitled to draw that quantity of water customarily drawn by the Divines at the time of the giving of the Greenspan deed. That quantity may be used anywhere and for any purpose, as we have indicated, and it is thus properly used in connection with the hotel.

Defendant’s right to that quantity of water is, of course, a paramount one but plaintiff is entitled to draw and use waters of the lake in a manner not inconsistent therewith. The reference in the reservation to the natural high- and low-water marks of the lake merely sets the outer limits within which the right to draw and impound water may be exercised. It may very well be (a) that the quantity of water to which defendant is entitled is less than that which lies between the natural high- and low-water marks or (b) that there may be periods, seasonal or otherwise, when defendant has neither need nor desire to draw all the water to which she is entitled, whatever quantity that may be. To hold that the reservation accords to defendant an exclusive and absolute right to draw water from the lake is, in our view, unwarranted by and is indeed contrary to the language of the conveyance, the intent of the parties and settled rules of construction.

Insofar as we believe that the right of defendant is paramount as to the amount of water customarily drawn by the Divines for use on the Mill Lot at the time of the delivery of the G-reenspan deed but not exclusive, we think that the order of the Appellate Division should be modified. We think that such amount of water may properly be determined upon the trial of the issues remaining in the action and still to be tried under the stipulation entered into by the parties under section 443 of the Civil Practice Act.

The order appealed from should be modified in accordance with this opinion and, as so modified, affirmed, with costs. The. first question should be answered in the affirmative, the second question not answered.

Dye, Fboessel and Van Voobhis, JJ., concur with Desmond, J.; Conwat, J., dissents in opinion in which Lewis, Ch. J., and Ftjld, J., concur.

Order affirmed, etc.


author: Van Voorhis, J.

text:
    In the Matter of Thomas J. Evans et al., Appellants, against George P. Monaghan et al., Constituting the Board of Trustees of the Police Pension Fund, Respondents.
    Argued November 30, 1953;
    decided February 25, 1954.

      Murray A. Gordon, Daniel Jacobson, Robert J. Eliasberg, Barney Rosenstein and Irving Mendelson for appellants.
    I. The charges and specifications of April 23, 1952, and the action taken against petitioners pursuant thereto were barred by the prior dismissal of the charge and specifications of May 15, 1951. (United States v. Williams, 341 U. S. 58; Matter of Hernandez, 172 App. Div. 467, 219 N. Y. 566; Sealfon v. United States, 332 U. S. 575; Matter of Fusco v. Moses, 304 N. Y. 424; Osterhoudt v. Rigney, 98 N. Y. 222; People ex rel. McCabe v. Matthies, 179 N. Y. 242; Matter of Hyland v. Waldo, 158 App. Div. 654; McGillicuddy v. Monaghan, 201 Misc. 650, 280 App. Div. 144; People ex rel. Miller v. Elmendorf, 42 App. Div. 306; Ward v. Ward, 67 App. Div. 121.) II. Petitioners were denied in their hearing the fair trial vouchsafed to them by the due process clause of the Fourteenth Amendment to the United States Constitution, the applicable rules and regulations of the police department, and the decisions of the courts of this State. (Wong Yang Sung v. McGrath, 339 U. S. 33; Chicago M. & St. Paul Ry. Co. v. Polt, 232 U. S. 165; Ohio Bell Tel. Co. v. Public Utilities Comm., 301 U. S. 292; Morgan v. United States, 304 U. S. 1; Matter of Delehanty (Sullivan-Goubeaud), 202 Misc. 33, 40, 280 App. Div. 542, 304 N. Y. 725; People ex rel. Schauwecker v. Greene, 96 App. Div. 249; Matter of Healy v. Bazinet, 291 N. Y. 430; Matter of Greenebaum v. Bingham, 201 N. Y. 343; Glasser v. United States, 315 U. S. 60.) III. As the sole alleged proof offered by the prosecution was the uncorroborated testimony of an accomplice, there was no competent evidence in support of the conviction of petitioners. In any event the prosecution failed to sustain the burden of proof imposed upon it in these cases. (Matter of Schadler v. Graves, 258 App. Div. 451; People ex rel. Kelly v. Waldo, 161 App. Div. 731; Matter of Reger v. Mulrooney, 241 App. Div. 38; Matter of Di Nardo v. Monaghan, 282 App. Div. 5; People ex rel. Madigan v. Sturgis, 110 App. Div. 1; People ex rel. Fallon v. Wright, 7 App. Div. 185; Matter of Charles v. Lyons, 263 App. Div. 1027; People ex rel. Hussey v. Woods, 169 App. Div. 146, 216 N. Y. 648.) IV. Respondent Monaghan was without power to remove petitioners from the police force since they had retired from the department prior to the date of the charges. Respondents board of trustees of the police pension fund have unlawfully withheld from petitioners their right to participate in that fund. (Gorman v. City of New York, 280 App. Div. 39, 304 N. Y. 865; People ex rel. Fitzpatrick v. Greene, 181 N. Y. 308; Matter of Pierne v. Valentine, 291 N. Y. 333.)

      Denis M. Hurley, Corporation Counsel (Victor J. Herwitz and Seymour B. Quel of counsel), for respondents.
    I. The police commissioner’s determinations herein are not barred under the rule of res judicata, which is not applicable to the determination rendered in a departmental disciplinary proceeding. (Stephens v. Santee, 49 N. Y. 35; Osterhoudt v. Rigney, 98 N. Y. 222; People ex rel. Chase v. Wemple, 144 N. Y. 478; People ex rel. McCabe v. Matthies, 179 N. Y. 242; Matter of Hyland v. Waldo, 158 App. Div. 654; McGillicuddy v. Monaghan, 201 Misc. 650, 280 App. Div. 144; Matter of Stowell v. Santora, 256 App. Div. 935; Matter of Greenebaum v. Bingham, 201 N. Y. 343; Matter of Fusco v. Moses, 304 N. Y. 424; Matter of Equitable Trust Co. v. Hamilton, 226 N. Y. 241.) II. Even if the rule of res judicata were to be applied, there would still be an implied power in the police commissioner to reopen and reconsider the prior determination. (Ladd v. Stevenson, 112 N. Y. 325; Vanderbilt v. Schreyer, 81 N. Y. 646; Ellis v. Hearn, 132 App. Div. 207.) III. The police commissioner’s action in rehearing and reconsidering his prior determination was a proper exercise of his discretion in the circumstances of this case. (Matter of McCarthy, 304 N. Y. 601; Hansen v. City of New York, 299 N. Y. 136; Los Angeles Investment Securities Corp. v. Joslyn, 282 N. Y. 438.) IV. Petitioners’ guilt was established after a trial fair in all respects. (Gorman v. City of New York, 304 N. Y. 865, 345 U. S. 962; Matter of Pierne v. Valentine, 291 N. Y. 333.) V. Petitioners’ testimony in the prior hearing was properly procured and they may therefore be charged with perjury and fraud in connection therewith. (Matter of Delehanty [SullivanGoubeaud], 202 Misc. 33, 40, 280 App. Div. 542, 304 N. Y. 725; People ex rel. Weston v. McClave, 123 N. Y. 512; People ex rel. Garvey v. Partridge, 180 N. Y. 237; People ex rel. Hayes v. Waldo, 212 N. Y. 156.) IV. There was substantial evidence in support of all of the specifications charged and, since this was believed by the trier of the facts, the determination should not be disturbed. (Matter of Miller v. Kling, 291 N. Y. 65; People ex rel. Guiney v. Valentine, 274 N. Y. 331; Matter of Murphy v. Valentine, 284 N. Y. 524.)
   Van Voorhis, J.

This is an article 78 proceeding, heard in the first instance by the Appellate Division, to review a determination of the respondent Monaghan as commissioner of the police department of the City of New York, dismissing each of the five petitioners from the police department. The Appellate Division confirmed the determination of the police commissioner.

On May 8, 1951, the Grand Jury of Kings County indicted certain members of the police department for conspiracy on charges of engaging in concerted action with one Harry Gross in promoting the systematic and continued business of bookmaking, horse rooms, wire rooms and other related conduct. Petitioners Thomas J. Evans, John E. McNamara, George M. Oest, Walter J. Sullivan and Eugene McGillicuddy were not named as defendants, but were alleged in these indictments to have received money from Gross or otherwise to have confederated with him in this enterprise. On May 9, 1951, the. members of the police force named as defendants, as well as those named as coconspirators (including these petitioners) were all suspended from duty. On May 15, 1951, departmental charges were filed against them of conduct unbecoming an officer. Former Federal District Judge Simon H. Rifkind was appointed third deputy police commissioner, and directed to hear these charges. Commissioner Rifkind found nine members of the police force guilty, and the rest (including each of the present petitioners) not guilty. The latter he recommended be restored to duty, which was done by order of the police commissioner.

Meanwhile the criminal indictment had been dismissed, due to refusal by Gross to testify in court to the substance of his testimony before the Grand Jury on which the defendants were indicted, and which evidently implicated these petitioners and others in the conspiracy. Commissioner Rifkind was obliged to conduct his investigation on behalf of the police commissioner without the aid of testimony by Gross, who was convicted on twelve separate counts of book-making on which he received consecutive sentences of one year each, and five years more for contempt of court for refusing to testify. Each of these petitioners denied the charges against him in testifying before Commissioner Rifkind.

Gross changed his mind and decided to testify against these officers in a second departmental hearing. New departmental charges were preferred against petitioners, which were the same, in substance, as the original charges, except for the additional charge that they had perjured themselves beforez Commissioner Rifkind. Former Surrogate Delehanty was appointed third deputy police commissioner to hear the new charges on April 25, 1952. Notice of these charges was served on petitioners on various dates between April 23,1952, and April 28, 1952. These notices specified that the respective petitioner would be required to answer such charges at a hearing to be held on April 30, 1952.

After petitioners had been restored to duty on December 27, 1951, on recommendation of Commissioner Rifkind, and before the second set of charges had been preferred, each of them applied for retirement from the police department, each retirement to take effect on a date specified according to subdivision c of section B18-4.0 of the Administrative Code of the City of New York (as amd. by Local Laws, 1951, No. 44 of City of .New York), not less than thirty days subsquent to the execution and filing of the application for retirement. The dates thus specified by petitioners were: Thomas J. Evans, May 13, 1952, Walter J. Sullivan, May 16, 1952, George M. Oest, May 18, 1952, John E. McNamara, May 23, 1952, and Eugene McGillicuddy, May 23, 1952. Each retirement application was accompanied by a letter of transmittal reserving the right of the petitioner to retire forthwith, as thus stated in some of the applications and paraphrased in others, ‘ ‘ which I now desire to do and which, except for Local Law #44 of the City of New York for the year 1951, I would do ”. Each petitioner protested the constitutionality of that local law, preventing immediate retirement.

The alleged invalidity of the thirty-day requirement imposed by this local law is one of the grounds urged for reversal, but this point was adjudged adversely to petitioners in Gorman v. City of New York, (304 N. Y. 865, appeal dismissed 345 U. S. 962).

When the hearing convened at the Brooklyn Police Headquarters on April 30, 1952, Commissioner Delehanty called attention to the dates of these applications for retirement, and stated ‘that unless the departmental charges were earlier decided, each of the petitioners would have the absolute right to retire on the dates above mentioned, if then in good standing. An adjournment was taken to Monday, May 5th. One reason for this adjournment was the application then pending before Special Term, Supreme Court, by petitioners for a preliminary injunction restraining their impending trial before Commissioner Delehantt, upon the ground that the prior action of the police commissioner on recommendation of Commissioner Riekind constituted a bar under the double jeopardy clauses of the State and Federal Constitutions, and that it was res judicata. The injunction application was denied by Special Term on May 2,1952 (McGillicuddy v. Monaghan, 201 Misc. 650, affd. 280 App. Div. 144). When the hearing reconvened on May 5th, all of petitioners pleaded not guilty to the departmental charges who had not already done so, and they or their attorneys asked for a further adjournment. In response to the unanimous requests for adjournment, Commissioner Delehantt asked the attorney for two of petitioners whether he was prepared to withdraw their applications for retirement and, upon receiving a negative answer, stated: “ I think the community is entitled to know before it is committed irretrievably to the payment of pensions for the lifetime of the pensioner whether or not he has earned the pension, and I will proceed with the trial despite the application ”. In order to obtain an adjournment, Commissioner Delehantt said, All this man need do is withdraw his application ”. A similar opportunity was given to the other petitioners either expressly or by implication, of which none of them took advantage. An adjournment was had until May 7th, at 10:00 a.m., when testimony was taken of Harry Gross. Before Gross’ testimony began, special objections were taken by several of the counsel to proceeding at that time, by reason of particular circumstances affecting them or their clients, which it is unnecessary to describe here. These objections were properly overruled.

Numerous questions have been raised by petitioners on appeal to this court on account of which it is contended that the order of the Appellate Division should be reversed, and the determination of the police commissioner annulled which removed petitioners from the force. It is contended that the charges which were the subject of the second departmental hearing before Commissioner Delehanty, were barred by the action taken by the police commissioner in restoring them to duty after the first departmental hearing upon the recommendation by Commissioner Rifkind ; it is asserted that they did not have a fair trial before Commissioner Delehanty, mainly due to his refusal to grant further adjournments; the point is made that the determination of the commissioner relieving them from duty is not supported by substantial evidence, in that the proof offered by the prosecution was mainly the testimony of Harry Gross, an accomplice, which is said to be uncorroborated by other evidence ; and it is contended that the commissioner lacked power to remove petitioners from the police force for the reason that they had already retired from the department.

The last point depends upon the alleged invalidity of Local Law No. 44 of the City of New York for the year 1951, amending subdivision c of section B18-4.0 of the Administrative Code, preventing retirements from taking effect less than thirty days after the execution and filing of applications. This point was overruled, as has been stated, by the Gorman case (supra).

Concerning the point that the police commissioner’s determination is unsupported by substantial evidence for the reason that Gross’ testimony lacks corroboration, it must be noted that section 399 of the Code of Criminal Procedure does not apply to departmental trials such as this, which are civil in nature. Nevertheless, we have not lost sight of the statement made by the dissenting justices at the Appellate Division: While technically section 399 of the Code of Criminal Procedure may not be formally applicable, the basic reason for its salutary purpose should in fairness and justice be not lost sight of in police trials upon charges involving criminality.” (282 App. Div. 382, 396.) A thorough examination of the supporting evidence leads us to conclude, however, that although, strictly speaking, it may not amount to corroborative evidence of Gross to the extent required by section 399 in case of a criminal trial, it is more convincing than the supporting testimony in the other departmental trials cited in the dissenting opinion at the Appellate Division, such as Matter of Reger v. Mulrooney (241 App. Div. 38, 44); People ex rel. Kelly v. Waldo (161 App. Div. 731), and Matter of Di Nardo v. Monaghan (282 App. Div. 5). The requirement of some corroboration in order to command the judicial confidence ” laid down in civil actions such as Moller v. Moller (115 N. Y. 466), and McCarthy v. McCarthy (143 N. Y. 235), was said in Winston v. Winston (165 N. Y. 553, 556-557) to be “ not a rule of evidence, but one for the guidance of the judicial conscience. * # * rpke corroboration which such evidence should receive must, simply, be such as to justify a belief that the incriminating testimony given is true.” To the same effect is Yates v. Yates (211 N. Y. 163,171). This rule was enunciated in connection with testimony supporting that of privately employed detectives or prostitutes in divorce actions. It is relevant to what is required to ascribe veracity to the testimony of a convicted professional gambler such as Harry Gross. The chief corroborating circumstance is, of course, the magnitude of Gross’ operations within the areas of command of petitioners as police officers, and the almost complete absence of any action taken by them to enforce the gambling laws against him. Gross’ testimony consists of 450 pages. His detailed and rambling narrative outlined the history of the development of these underworld enterprises, including his methods of operation. He testified that in the principal year under consideration, he had 26 or 27 horse rooms operating in New York City, 20 to 25 of which were in Brooklyn, also eight or ten telephone places operating for book-making purposes, with 400 persons in his employ and 80 unpaid runners, and that these horse rooms did an average daily business of $1,500 to $2,000 apiece, and several of them in the areas in question as much as $8,000 to $10,000 per day. The names of many patrolmen and other police officers were mentioned, accompanied by testimony in detail concerning payments of money to these men for police protection. Whatever may have been the exact dimensions of these illegal gambling enterprises, there can be no doubt that they were of large proportions and that very little was done about stopping them. There is no occasion to enumerate here the multitude of details contained in the many pages of this record on appeal concerning the nature of petitioners’ duties, and the extent of this underworld empire. The defense consists almost entirely of denials that money was received from Gross, and, in most instances, of being aware of his existence. Except for a few character witnesses and the testimony of the chief inspector, that is all of the defense testimony which was introduced. When one recalls that Gross gave names of many policemen and other persons whom he charged with having been connected with this conspiracy, it is remarkable that none of them were called to refute Gross’ version of the facts. The testimony of the chief inspector did more to complete the mosaic of Gross’ account than it did to disrupt it. Among those named by Gross but not called by the petitioners as witnesses were brother officers, associates and friends of petitioners whom Gross said that he had met and done business with in their presence. No explanation or excuse was rendered for failing to call any of these persons to support petitioners’ bare denials.

These circumstances would not be sufficient to implicate petitioners without the testimony of Gross, yet they lend credibility to his account of what occurred. Commissioner Delehanty, who had opportunity to observe this witness upon the stand, reported that his testimony seemed to be a recital in general of the actual occurrences as he recalled them. He added that “ The multiplicity of detail to which he testified and his restatement of detailed occurrences when he was required to make a statement negated the idea that the story told by him was a concocted tale in which he involved police officers maliciously. ’ ’ He regarded as significant the fact that the witness expressed resentment at the proceedings before the Grand Jury in Kings County, and later upon the trial of the indictment found by the Grand Jury, but that “ There was no evidence whatever of malice on the part of the witness toward any policeman named by him,” and that Nowhere is there made the suggestion that a story once told by him has been substantially changed.” If Gross’ testimony be false in its essentials, he must have harbored a steady vindictive purpose to ruin these police officers, and been possessed of a remarkably systematic mind to have been able to have invented such an elaborate fiction, and to have kept so many imaginary details in the same relationship and context. He evidently has a nimble and alert mind, and a mercurial temperament, and was animated by a steady ambition to make a financial success in the underworld, but although his mind is apparently clear and shrewd, it appears to be the reverse of systematic. It is hardly conceivable that he could have created out of whole cloth this complicated story in all of its ramifications, and then have poured it forth in so hit or miss a fashion, and still have kept the multitude of details consistent, as he did, regardless of at what point or in what aspect the narrative was resumed.

This is, of course, a case of unusual importance to petitioners and to organized society. It merits and has received the careful study and sustained attention of the police department and of the courts. The attendant circumstances lend sufficient credibility to these departmental charges to justify a belief on the part of the commissioner that the charges were true. In conjunction with the testimony of Harry Gross, they were enough to constitute substantial evidence before the commissioner to sustain his determination. In saying this, we are not unmindful of the circumstance that Gross hoped to eliminate part of his sentence by altering his previous refusal to testify.

Concerning the contention that petitioners were not granted a fair trial, it is true that the time allotted by Commissioner Delehanty for preparaion for trial was brief. Nevertheless, Gross’ testimony was received on May 7th and 8th, after which an adjournment was taken until May 12th. That left time, it would seem, for petitioners to have communicated with at least some of the police officers who might have denied or disrupted the sequence of Gross’ story in some regard. The trial would have begun earlier, and Gross’ testimony would have been sooner available to petitioners, if they had not sought to enjoin the trial by applying for an injunction to the Supreme Court at Special Term. Moreover, Commissioner Delehanty plainly indicated that he would postpone the trial for a longer time if petitioners would withdraw their applications for retirement, in order that these issues might be decided prior to their pensions irrevocably taking effect. None of the petitioners was willing to postpone the effective date of his retirement. It was proper to conduct the trial with such expedition as was necessary in order to prevent their pensions from taking effect in event that they were found guilty of these charges. If any of the petitioners considered that additional time to prepare, in the light of Gross’ testimony, would have aided them materially in presenting their defenses, it is reasonable to assume that they would have deferred their retirement dates in order to do whatever was possible to vindicate their previous conduct. Instead of doing so, they sought to delay the trial and at the same time to hasten their retirements, apparently in order to render the trial futile insofar as their pensions were concerned.

The further ground on which it is contended that petitioners were denied a fair trial before Commissioner Delehanty, namely, that he could not find that they testified falsely before Commissioner Rifkind, is likewise unfounded. The basis for this contention is that they were denied due process of law in being called as witnesses for the prosecution in the first departmental hearing. This contention was overruled in Matter of Delehanty (Sullivan-Goubeaud) (280 App. Div. 542, affd. 304 N. Y. 725, 727).

It remains to consider the principal point on account of which it has been argued in this court that the order appealed from should be reversed, which is that the outcome of the former disciplinary proceeding bars the maintenance of the second proceeding upon similar charges. __

In considering the question of res judicata, it is assumed that the charges are the same which formed the basis of both departmental hearings, and that this circumstance is not altered by the fact that additional charges were preferred at the second-trial that petitioners testified falsely at the first trial." Osterhoudt v. Rigney (98 N. Y. 222, 234) is cited to the effect that The rule which forbids the reopening of a matter once judicially determined by a competent jurisdiction, applies as well to the decisions of special and subordinate tribunals as to decisions of courts exercising general judicial powers ”. Other cases are cited to similar effect such as People ex rel. McCabe v. Matthies (179 N. Y. 242, 248); Matter of Hyland v. Waldo (158 App. Div. 654), and Matter of Stowell v. Santoro (256 App. Div. 934). Security of person and property requires that deter-ruinations in the field of administrative law should be given as much finality as is reasonably possible. The cases cited indicate that Jhe rule of res judicata is applicable to such determinations as well as to the courts wherever consistent with the purposes of the tribunal, board or officer. (Cf. Res Judicata in Administrative Law, 49 Yale L. J. 1250.) Such departures from the rule as there may be in administrative law appear to spring from the peculiar necessities of the particular case or the nature of the precise power being exercised, rather than from any general ^distinction between courts and administrative tribunals. Indeed, it is the instinct of our jurisprudence to extend court principles to administrative or quasi-judicial hearings insofar as they may be adapted to such procedures. The opinion of this court written by Judge Pound in People ex rel. Finnegan v. McBride (226 N. Y. 252) indicates the restraint which is to be exercised in permitting reconsideration even in the case of purely administrative action, to say nothing of that which is ordinarily characterized as quasi-judicial. Any general relaxation of the rule of res judicata is inadmissible even in strictly administrative matters.

Nevertheless, it would be beyond the spirit as well as beyond the letter of the doctrine of res judicata, as that doctrine is applied in court procedure, to bar'the second departmental trial of petitioners. The unsealing of Harry Gross’ lips after he had refused to testify at the first departmental trial, is tantamount to newly discovered evidence. The resulting situation is not unlike that where a witness is non compos mentis at the time of a trial but afterward regains his competency and ability to testify. It is true that Gross had testified before the Grand Jury, and that the Grand Jury’s minutes had been made available to the police department. Nevertheless, it remained sterile for so long as Gross elected to submit to punishment for contempt rather than to testify where the testimony would count for something.

If a successful defendant has been placed in jeopardy in a criminal trial, there can be no new trial on the ground of newly discovered evidence or upon any other ground. This is a civil proceeding, however, and there is no double jeopardy nor other bar to a second trial on these departmental charges if, by analogy, the principle of newly discovered evidence should apply. There is essentially no distinction, one may think, between a witness who recants his testimony given upon a former trial, and one who later testifies to material facts after refusing to testify before. Certainly, in the latter instance, evidence has become available which was not available at the former trial, due to the contumaciousness of the witness on the earlier occasion. This was not the fault of the corporation counsel’s office in preparation for trial, and is beyond the intent of the cases holding that new trials should be denied for newly discovered evidence which due diligence would have uncovered in time to be used on the previous trial. Although Gross did not change his testimony, he altered his refusal to testify and made his testimony available for the first time in this forum. It was not recantation, strictly speaking, but was sufficiently similar so that the rule respecting recantation of witnesses can be used by analogy.

In People v. Shilitano (218 N. Y. 161) a motion was denied in behalf of a convicted defendant in a criminal prosecution for a new trial on the ground of newly discovered evidence, which consisted in the recantation of testimony given at the trial. Although this motion was denied for the reason that it was held not to be an honest recantation, and the rule was stated that new trials should be granted on this ground only under unusual circumstances, and after careful scrutiny of the change in testimony, it was recognized to belong to the category of newly discovered evidence, and that new trials may be granted upon that ground. In the opinion by Judge Seabury at page 171 it is said: Nor can it properly be said that because the witness who now recants his testimony gave evidence upon the trial, the fact that he now repudiates his former testimony precludes proof of this fact from being regarded as newly-discovered evidence. It is not that the witness has been newly discovered, but the fact that he has recanted his testimony since the trial which makes that evidence newly discovered.” The same thing may be said of a witness who through contumaciousness has previously refused to testify, but subsequently alters his refusal and furnishes important material evidence. The concurring opinion by Judge Cardozo in the Shilitano case (supra) contains nothing to the contrary, but implies that such a motion should be granted on that ground if the court were dealing " with an honest recantation ” (p. 182). The dissenting judges considered that the motion should have been granted, saying that The application for a new trial in this case is out of the ordinary ’ ’ (p. 199). It is thus clear that in the Shilitano case this court indicated that the power to grant new trials upon this ground should seldom be exercised, but that the circumstances might be such as to warrant retrials for newly discovered evidence in the case of recantation of witnesses. This interpretation was adopted in the Special Term opinions in People v. Farini (125 Misc. 300, Carswell, J.), People v. Giordano (106 Misc. 235), People v. Cohen (117 Misc. 158), and People v. Caruso (172 Misc. 191). In the first two cases cited, the motion for new trial was denied for the reason that the alleged newly discovered evidence fell short of meeting the necessary requirements for recantations. In the Caruso and Cohen cases (supra) the newly discovered evidence (recantation) was found to be sufficient, and the motion was granted on that ground.

J~ The analogy which exists to a greater or less degree, depend- : ing upon the circumstances of the case, between administrative law and court procedure, calls for drawing parallels wherever possible without defeating the essential objects of the administrative law, and this rule calls for application of the law of newly discovered evidence to administrative determinations where that can be done in conformity with the limitations on the rule which the courts have imposed upon themselves. This tends to assimilate the practice and procedure of administrative bodies to that of the courts. The present situation falls within i the area in which new trials or hearings are granted by courts Lor by quasi-judicial or administrative officers or bodies. The cases of People ex rel. Cohen v. York (43 App. Div. 138), Ward v. Ward (67 App. Div. 121), and Jones v. Lustig (37 Misc. 834) involved situations where the alleged newly discovered evidence would not have changed the result and was adduced as a pretext to obtain a different ruling on the same facts, or where the evidence was .available at the first trial. In this instance, the witness was available but not his testimony which was sufficiently important to change the result. The previous inability to obtain his testimony could not have been avoided by anything which could have been done through the exercise of greater diligence or skill.

The order appealed from should be affirmed, with costs.

Lewis, Ch. J., Conway, Desmond, Dye, Fuld and Froessel. JJ., concur.

Order affirmed.


author: Desmond, J.

text:
    Mary Winbush, Individually and as Administratrix of the Estate of Viola Winbush, Deceased, et al., Appellants, v. City of Mount Vernon, Respondent, et al., Defendants.
    Argued January 6, 1954;
    decided March 4, 1954.

      Richard L. Baltimore, Jr., and Clarence Clyde Ferguson, Jr., for appellants.
    I. Valid notice of a claim for wrongful death of decedent may be given prior to the appointment of the personal representative. (Ward v. Petrie, 157 N. Y. 301; Teresta v. City of New York, 304 N. Y. 440; Matter of Brown v. Board of Trustees, Hamptonburg School Dist. No. 4, 303 N. Y. 484; Mulligan v. City of New York, 273 App. Div. 152; Thomann v. City of Rochester, 256 N. Y. 165; Matter of Rouss, 221 N. Y. 81; People ex rel. Royal Bank of Canada v. Loughman, 226 App. Div. 593, 254 N. Y. 512.) II. The Appellate Division erred in holding that Special Term was without power to allow amendment of a notice of claim, not affecting the time or manner of service, where such a notice was given prior to the appointment of the administratrix, and within sixty days of the time of injury.
      (Holmes v. City of New York, 269 App. Div. 95, 295 N. Y. 615; Matter of Charlemagne v. City of New York, 277 App. Div. 689, 302 N. Y. 871.)

      Harry Zimmerman, Corporation Counsel (Louis B. Pagano of counsel), for respondent.
    I. The notice was void insofar as it purported to claim damages for the death of Viola Winbush because neither the claim nor the claimant existed at the time it was served. (Boffe v. Consolidated Tel. & Elec. Subway Co., 171 App. Div. 392, 226 N. Y. 654; Rice v. Postal Tel.-Cable Co., 174 App. Div. 39, 219 N. Y. 629; Crouse v. New York State Rys., 214 App. Div. 678; Hill v. Shafty, 121 Misc. 273; Sutherland v. State of New York, 189 Misc. 953; Matter of Meekin v. Brooklyn Heights R. R. Co., 164 N. Y. 145; Barnes v. City of Brooklyn, 22 App. Div. 520; Crapo v. City of Syracuse, 183 N. Y. 395; Matter of Mulligan v. County of Westchester, 272 App. Div. 927; Mulligan v. City of New York, 273 App. Div. 152; Matter of Hackling v. Board of Educ., Vestal School Dist. No. 1, 187 Misc. 52.) II. The legal principles stated and established by the Crapo case have not been superseded by the statute involved here. (Matter of Figueroa v. City of New York, 279 App. Div. 771; Reining v. City of Buffalo, 102 N. Y. 308; Weisman v. City of New York, 219 N. Y. 178; Thomann v. City of Rochester, 256 N. Y. 165; Marcantonio v. City of Beacon, 158 Misc. 851, 247 App. Div. 822; Ponsrok v. City of Yonkers, 254 N. Y. 91; Lawrence Constr. Corp. v. State of New York, 293 N. Y. 634.) III. The death claim contained in the individual’s notice of claim cannot be validated by construing it as having been served in behalf of plaintiff in advance of her appointment as administratrix. (Matter of Charlemagne v. City of New York, 277 App. Div. 689, 302 N. Y. 871; Matter of Martin v. School Bd. [Long Beach], 301 N. Y. 233.) IV. The notice was not amendable because it was void. (Miller v. City of New York, 187 Misc. 926.) V. The amendment sought would be prejudicial to the city. VI. The amendment sought would permit late filing of death claims contrary to the statute. (Fullam v. Westchester Co. Playground Comm., 273 App. Div. 1011; Matter of Brown v. Board of Trustees, Hamptonburg School Dist. No. 4, 303 N. Y. 484; Mulligan v. City of New York, 273 App. Div. 152; Matter of Mulligan v. County of Westchester, 272 App. Div. 927; White
      v. City of New York, 277 App. Div. 1124, 302 N. Y. 726; County of Broome v. Binghamton Taxicab Co., 190 Misc. 925.) VII. The complaint and the bill of particulars fail to state facts sufficient to constitute the first cause of action. (Winter v. City of Niagara Falls, 190 N. Y. 198; Walden v. City of Jamestown, 178 N. Y. 213.)
   Desmond, J.

To pass on the validity, under section 50-e of the General Municipal Law, of a notice of claim filed against the City of Mt. Vernon, we must answer this question: may a person qualified to be, but not yet appointed, administratrix validly file' a wrongful death claim, that person having been, subsequently and within the statutory ninety-day time limit for filing the notice, appointed administratrix? The notice of claim which is here under attack was filed by appellant Mary Winbush, who was, and who described herself in the paper as, one of the next of kin of each of three deceased persons. The claim was made because of the deaths of those three persons: appellant’s sister Viola Winbush, an adult, and appellant’s two infant nephews, James and Wilson Winbush, all three having been burned to death in a fire on the night of January 24-25,1949, in a building owned and operated by the Mt. Vernon New York Housing Authority. The theory of the claim was that the fire was caused by the negligence of the City of Mt. Vernon and/or the Mt. Vernon Housing Authority. However, the claim, and the later-brought suit which has been here dismissed, were against the City of Mt. Vernon, only. The notice of claim was filed with the city on March 3,1949, and so there is no question of timeliness, within the ninety-day time limit of section 50-e (supra) for such filing. The difficulty is that plaintiff-appellant Mary Win-bush was not yet, at the time of such filing, administratrix of the estates of any of the three deceased persons. In fact, at the time the notice was filed, the Public Administrator of Westchester County had already been appointed administrator of the estates of the two infants, James and Wilson Winbush. Plaintiff-appellant Mary Winbush was, on March 29, 1949, still within the ninety days provided by section 50-e (supra) for the filing of a claim, appointed administratrix of the estate of her sister, Viola Winbush, the adult who was burned to death in the fire. Section 130 of the Decedent Estate Law permits a suit for wrongful death to be brought by an executor or administrator only, but there is no such statutory requirement in the notice of claim statute.

Mary Winbush, as administratrix of the estate of her sister Viola, after her appointment as such, and the Public Administrator, as. administrator of the estates of the two deceased infants, brought this present suit against the City of Mt. Vernon and the Housing Authority, but the city only has been served. The city moved, in August, 1952, to dismiss the wrongful death counts in the complaint, on the ground that they failed to state any causes of action, since it appeared from the complaint and the bill of particulars that, at the time this notice of claim was filed, plaintiff-appellant Mary Winbush had not yet been appointed administratrix of the estate of her sister, and, also, that at the time of such filing, someone other than Mary Win-bush, to wit, the Public Administrator, was already acting as the administrator of the estates of the two boys (there is in the complaint a separate cause of action for Mary Winbush’s own injuries but that was not attacked and is not relevant here). As against that motion by the city, Mary Winbush, as administratrix of her sister, and the Public Administrator for the two infants, moved to amend the notice of claim previously filed, so as to add, after Mary Winbush’s name in that claim, the words both individually and as administratrix of the Goods, Chattels, and Credits of Viola Winbush, Deceased ”, and further to amend that notice of claim by permitting the Public Administrator to join in the claim previously filed by Mary Winbush. The statutory basis relied on for this cross motion for amendment is subdivision 6 of section 50-e of the General Municipal Law, which is in full as follows: “6. At or before the trial of an action or the hearing upon a special proceeding to which the provisions of this section are applicable, a mistake, omission, irregularity or defect made in good faith in the notice of claim required to be served by this section, not pertaining to the manner or time of service thereof, may be corrected, supplied or disregarded, as the case may be, in the discretion of the court, provided it shall appear that the other party was not prejudiced thereby. Application for such relief if made before trial, shall be by motion, on affidavits.”

Special Term denied the city’s motion to dismiss and granted, in both respects, the cross motion of plaintiffs to amend the notice of claim, the court pointing out that the claim adequately informed the city as to the details of the alleged accident and informed the city that claims would be made in certain amounts on behalf of each of the three deceased, and that the city could not be prejudiced by the failure of the Public Administrator to sign the paper, or by the fact that at the time of its filing Mary Winbush had not yet been appointed administratrix of her sister.

The city appealed to the Appellate Division, Second Department, which, by a divided court, affirmed so much of the lower court order as amended the notice of claim by putting in the Public Administrator’s name. The Appellate Division, however, struck out so much of the lower court order as permitted the claim to be amended by adding to plaintiff Mary Winbush’s name the additional language “ individually and as administratrix ”, etc. In other words, the Appellate Division let the claim stand as to the Public Administrator representing the estates of the two infants, but struck it down as to plaintiff Mary Winbush, administratrix of the deceased adult. The majority in the Appellate Division wrote a brief memo which, citing Crapo v. City of Syracuse (183 N. Y. 395) and Matter of Mulligan v. County of Westchester (272 App. Div. 927), later to be discussed herein, said that the notice of claim filed by Mary Winbush was a nullity insofar as it attempted to cover the death claim of Viola Win-bush, since, at the time of its filing, there was no administratrix of Viola Winbush. The dissenting Justices in the Appellate Division thought that, while only an administrator or executor can bring a wrongful death action, anyone, whether technically authorized or not, can validly file a notice of claim (citing Matter of Figueroa v. City of New York, 279 App. Div. 771), and that, in permitting the amendment in both its phases, Special Term did not abuse its discretion (citing Matter of Charlemagne v. City of New York, 277 App. Div. 689, affd. 302 N. Y. 871). Since the majority of the Appellate Division held that the complaint should be dismissed as to Mary Winbush, purporting to sue individually and as administratrix of Viola, a judgment was entered dismissing that cause of action. She appealed here from so much of that judgment as dismissed part of the complaint, but the city did not appeal from the other part of the judgment, which let stand the Public Administrator’s cause of action. Since the Appellate Division’s order was expressly stated to be £1 on the law”, there is no direct question of discretion here.

This appeal differs from a number of others which we have heard, as to notices of claims against municipal corporations, since here it is undisputed that the notice of claim was filed in time and on the proper city officials, and that it contained full particulars as to the time, place and details of the occurrence, the specifications of the city’s alleged negligence and the amount of damages that would be demanded therefor. The primary purpose of section 50-e (supra), as often stated by the courts, is to give to a municipality prompt notice of such claims, so that investigation may be made before it is too late for investigation to be efficient (see Justice Shientag’s opinion for the Appellate Division in the Charlemagne case, 277 App. Div. 689, supra, which we affirmed, and see, also, Teresta v. City of New York, 304 N. Y. 440, 443). We have been very strict in some of the decisions such as Matter of Martin v. School Bd. (Long Beach) (301 N. Y. 233), but the errors in those cases were as to the time of service, and we were forced by the very language of the statute to hold that the time provisions contained in section 50-e (supra) are mandatory and beyond the reach of the courts. However, there is in the above-quoted subdivision 6 of the section (supra) the broadest kind of provision giving the courts discretion, in the absence of prejudice, to correct, supply or disregard a good faith mistake, omission, irregularity or defect “ not pertaining to the manner or time of service ”. Subdivision 6 makes it plain that the Legislature, to carry out the prime purpose of section 50-e, insists on a precise time limit for claims, and precise compliance with the requirements as to what officers are to be served, but leaves it to the discretion of the courts to correct any other kind of mistake or defect in such a paper. That explains the Charlemagne (supra). There, a wife had been injured and separate claims had been prepared for and signed, one by the wife for her injuries and the other by the husband for his loss of service, etc., but, by mistake, the husband’s claim only was filed, so that within the time limited by statute no claim whatever was on file on behalf of the wife. The courts permitted the husband’s notice of claim to be amended to include a statement that it was on behalf of his wife also, the theory of decision being that the paper actually filed by the husband fully informed the city that there would be a claim made by the wife, too. The only difference between that case and the present one is that the claim we are dealing with here is for wrongful deaths, and that appellant Mary Winbush, at the time of filing, was not, although she later was within the statutory time, the administratrix of her sister.

While no one except an administrator or executor may bring a death action, there is no reason, in statute or in reason, why a person, who is one of the next of kin to be benefited by a death action, may not file a notice of claim, which is not a pleading in a lawsuit, but merely a notice of injury and intention to make claim therefor. Quite pertinent here, although not completely in point, is Matter of Figueroa v. City of New York (279 App. Div. 771, 2d dept., supra) which was cited with approval by this court in Teresta v. City of New York (supra, p. 443). Figueroa was an incompetent at the time the claim was filed, with no committee yet appointed, but a claim filed on his behalf by a friend was upheld, the holding being that the friend’s action might later be adopted by a committee subsequently legally authorized. No reason appears why that concept may not be applied in the present case, too.

Since a death action is brought for the benefit of the decedent’s next of kin (see Matter of Zirpola v. Casselman, Inc., 237 N. Y. 367, 370; Central N. Y. Coach Lines v. Syracuse Herald Co., 277 N. Y. 110, 113; Stutz v. Guardian Cab Corp., 273 App. Div. 4, 7, and cases cited), since the administrator is “ a mere nominal party ” (Hamilton v. Erie R. R. Co., 219 N. Y. 343, 350, appeal dismissed 248 U. S. 369), and since any proceeds are not an asset of the estate but constitute a special fund, subject to a “ trust for the sole benefit of [those] statutory distributees ” (Central N. Y. Coach Lines v. Syracuse Herald Co., 277 N. Y. 110, 113, supra), it seems, in the absence of any statutory prohibition, that those next of kin themselves should be permitted to file a. notice of claim, even though a suit on the claim cannot be brought until an administrator has been appointed. For their contrary conclusion here, the majority of the Appellate Division relied on the Crapo case (supra) and on Matter of Mulligan v. County of Westchester (supra) based on the Crapo ruling. The Mulligan case seems to rest on an erroneous theory of law that a cause of action for death by wrongful act accrues only on the appointment of an administrator. But the statute itself says (and we held in Jones v. 416 Pleasant Ave. Holding Corp., 304 N. Y. 893) that “Such an action must be commenced within two years after the decedent’s death ” (Decedent Estate Law, § 130). The Crapo case, in 183 New York, arose many years ago under a local charter provision which required that a death action against the city of Syracuse had to be commenced within a year after accrual of a cause of action, and that notice of the intention to commence such action and of the time and place of the accident had to be filed within six months after the accrual of the cause of action. At that time, as now, there was elsewhere in the statutes a general provision that such a death action had to be brought within two years after the death, but the special Syracuse statute had a peculiar provision which was interpreted as meaning that an action either for personal injuries or death was to be brought within a year after the accrual of the cause of action. Actually, the Crapo suit was brought a few days less than two years after the death. This court there held that the special Syracuse statute controlled, and that, therefore, the time for suing began to run from the appointment of an administratrix only; starting the time from the appointment of an administratrix made the filing of the Crapo claim and the bringing of the action timely. That same Syracuse statute required the filing of a claim within six months “ after [the] cause of action shall have accrued” whereas our section 50-e requires filing within “ninety days after the claim arises ”. In the Crapo case, the claim which the statute demanded had to contain not only a statement of the facts of the accident, but notice also of intention to bring a suit, and it was held that, since only an administratrix could bring the suit, only an administratrix could give notice of intention to sue, and so the time for filing the claim did not start to run until the administratrix was appointed. The present claim, however, was preliminary to suit under section 130 of the Decedent Estate Law, as to which it has been specifically held that the time runs from death, and we have, also, section 50-e itself, which requires filing of the claim within ninety days “ after the claim arises ”. The Crapo decision is no authority against our holding here, as we do hold, that it was within the discretion of the Supreme Court to permit plaintiff-appellant Mary Win-bush to amend her claim so as to show that it was on her behalf as administratrix as well as individually.

So much of the judgment as is appealed from should, therefore, be reversed, but, since the Appellate Division’s modification was stated to be on the law, we must presume that the court did not pass on any question of discretion (Civ. Prac. Act, §§ 602, 606; see Rugg v. State of New York, 303 N. Y. 361, 364).

The judgment, insofar as appealed from, should be reversed, without costs, and the case remitted to the Appellate Division for determination of the question of fact, that is, of discretion.

Lewis, Ch. J., Conway, Dye, Fuld, Froessel and Van Voorhis, JJ., concur.

Judgment reversed, etc.