author: Rippey, J.

text:
    In the Matter of the Application of the Board of Water Supply of the City of New York, Respondent, to Acquire Real Estate. Ezra Empt et al., Appellants.

      Argued March 10, 1938;
    decided April 12, 1938.

      George F. Kaufman and Thomas J. Plunket for appelants.
    The effect of the depression was a proper element to be considered by the commissioners of appraisal in awarding just and equitable compensation to appellants, and the evidence of the fair market value of the condemned parcel in October, 1930, was properly received. (Orgel on Valuation under Eminent Domain, § 17; Banner Milling Co. v. State, 240 N. Y. 533; Matter of City of New York, 265 N. Y. 170; Matter of City of New York [Inwood Hill Park], 197 App. Div. 431; People ex rel. Brown v. Purdy, 186 App. Div. 54; Heiman v. Bishop, 272 N. Y. 83; President of Manhattan Co. v. Premier Building Corp., 247 App. Div. 297; Matter of City of New York [Triborough Bridge], 151 Misc. Rep. 862; United States v. Inlots, 26 Fed. Cas. 490; Kohl v. United States, 91 U. S. 367; Howell v. State Department, 167 S. C. 217; Alishausky v. MacDonald, 117 Conn. 138; Kansas City R. R. Co. v. Fisher, 49 Ky. 17; Suburban Land Co. v. Arlington, 219 Mass. 530; County of Erie v.
      Fridenberg, 221 N. Y. 389; Matter of City of New York, 265 N. Y. 170; People ex rel. Amalgamated Properties, Inc., v. Sutton, 274 N. Y. 309.) The reception and consideration of the disputed evidence did not in any event justify reversal. (Matter of Bronx Parkway Comm., 192 App. Div. 412; Matter of City of New York [Blackwells Island Bridge], 198 N. Y. 84; Matter of Simmons, 195 N. Y. 573.) The certified question requires the determination by the Court of Appeals of matters of law exclusively and is proper. (Baxter v. McDonnell, 154 N. Y. 432; Continental Cas. Co. v. National Slovak Sokol, Inc., 269 N. Y. 283.)

      William C. Chanler, Corporation Counsel {Henry R. Bright and John E. Egan of counsel), for respondent.
    The appeal should be dismissed and the question certified should not be answered, because an answer to the question requires not only a review of the facts bqt a review of the amount of the award. (Bowlby v. McQuail, 240 N. Y. 684; Blaschko v. Wurster, 156 N. Y. 437; Metropolitan Trust Co. v. Bishop, 237 N. Y. 607; Schieffelin v. Hylan, 229 N. Y. 633; Palmer v. State, 217 N. Y. 601; McGraw v. Hann, 263 N. Y. 674; Matter of Martin, 219 N. Y. 557; Matter of Westerfield, 163 N. Y. 209; Grannan v. Westchester Racing Assn., 153 N. Y. 449; Matter of City of New York [Northern Boulevard], 258 N. Y. 136; Matter of Thompson, 121 N. Y. 277.) The question certified should be answered in the affirmative because, by receiving and considering the evidence of alleged value of appellants’ property as of October, 1930, the commissioners of appraisal adopted an erroneous theory of valuation. (Matter of Van Etten, 226 N. Y. 483; Matter of City of New York [Fourth Avenue], 255 N. Y. 25; County of Erie v. Fridenberg, 221 N. Y. 389; Olson v. United States, 292 U. S. 246; United States v. New River Collieries, 262 U. S. 341; Lebanon & Nashville Turnpike Co. v. Creveling, 159 Tenn. 147; Langdon v. Mayor, 59 Hun, 434; 133 N. Y. 628; Minnesota Rate Cases, 230 U. S. 352; Brooks

      Scanlon Corp. v. United States, 265 U. S. 106; Phelps v. United States, 274 U. S. 341; Alishausky v. MacDonald, 117 Conn. 138; Chicago, K. & W. R. R. Co. v. Parsons, 51 Kan. 408; Howell v. State Highway Department, 167 S. C. 217.)
   Rippey, J.

The extent, nature of the estate to be acquired, and the occasion of taking private property for public use rest in the discretion of the Legislature (Matter of City of New York, 190 N. Y. 350) within the limitations established by article I, sections 6 and 7, of the State Constitution (People v. Adirondack Ry. Co., 160 N. Y. 225; affd., 176 U. S. 335), although the right of eminent domain is an inherent attribute of sovereignty (Heyward v. Mayor, 7 N. Y. 314). The power may be delegated to a municipal corporation (People ex rel. Burhans v. City of New York, 198 N. Y. 439). Such power was delegated by the Legislature by chapter 724 of the Laws of 1905, as amended, to the city of New York for the purposes of the construction of the Lackawack Dam and of the Delaware Aqueduct and appurtenances in the vicinity of Lackawack. Acting under the authority thus given, the city of New York filed a real property map in Ulster County Clerk’s office on July 24,1936, of what is known as “ Delaware Section No. 6,” which included therein the property of Ezra Empt and wife described as parcel No. 1254, and took the property for the purposes specified in such act on November 16, 1936. In condemnation proceedings, the commissioners made an award to the owners which was confirmed by the Special Term but set aside by the Appellate Division as matter of law on the ground that incompetent testimony as to value was received and considered by the commissioners in fixing the amount of the award. The sole question certified for our consideration is whether it was reversible error for the commission to receive and consider evidence as to the market value of the parcel as of October, 1930.” We think that question involves a determination of no question of fact and may be answered without passing beyond the limits of our jurisdiction as established by law.

It is asserted by the city that the acceptance and consideration of evidence of market value as of the nearest earlier date when the property had a market value within the legal meaning of that expression will establish a new rule by which compensation for property taken by power of eminent domain may be measured and will destroy time-tested standards of measurement. If such were the only evidence considered by the commissioners and it constituted the sole basis for making an award there would be force to respondent’s contention, but such is not the situation in the case at bar.

The Constitution (Art. I, § 6) prohibits the taking of private property for public use without just compensation. Just compensation has been measured in cases of this kind by the fair market value of the property taken as of the date of taking (Orgel on Valuation under the Law of Eminent Domain, § 16; Matter of Van Etten v. City of New York, 226 N. Y. 483, 489; Brooks-Scanlon Corp. v. United States, 265 U. S. 106, 123). It includes the market value of the premises actually taken and also any damages resulting to the residue, including those which will be sustained by reason of the use to which the portion taken is to be put by those acquiring it (South Buffalo Ry. Co. v. Kirkover, 176 N. Y. 301). Generally speaking, that is still doubtless the general rule, but even that must yield to exceptional circumstances, for each case necessarily involves different facts and must be considered by itself ” (Banner Milling Co. v. State of New York, 240 N. Y. 533, 546). The Legislature has recognized as a matter of public policy this patent fact in enacting section 1083-a of the Civil Practice Act, where the rule is laid down that in cases where there is no market at the date when value should be determined, value must be fixed at such nearest earlier date as there shall have been any market value thereof,” and this court in commenting upon that act and affirming the earlier definition of market value said in Heiman v. Bishop (272 N. Y. 83, at p. 86), Prior to the depression, the method of * determining the market value of real property was fairly well established by the decisions of the courts. In a general way, the market value of real property is the amount which one desiring but not compelled to purchase will pay under ordinary conditions to a seller who desires but is not compelled to sell.” It is further observed in that case “ that in the various definitions of market value of real property stated by the courts there appears the words under ordinary conditions ’ or ‘ under ordinary circumstances ’ or words of like import. Certainly, during the depression, ordinary conditions have not existed in the real property market. Conditions in that market have been extraordinary and unprecedented.” This court laid down the rule in People ex rel. Amalgamated Properties, Inc., v. Sutton (274 N. Y. 309, at p. 311) that “ the effect of the financial depression since 1929, which the referee considered, is also a proper element of present market value,” and in Matter of New York Title & Mortgage Co. (277 N. Y. 66) we indicated the proper method of fixing the value of mortgages during the period of the depression of which judicial notice must be taken. In all of those later cases this court has indicated, in so far as the questions involved required such indication, the elements that might be taken into consideration in fixing market value as of a definite date.

Indications of the elements that may be considered by the authority fixing value, whether in condemnation cases or in other cases, do not abrogate or destroy the general rule that value must be fixed as of the time when the property was converted or taken. Rules are merely laid down as to the type or character of evidence admissible properly for the consideration of the value-fixing authority in determining the value of property on a particular date.

No hard and fast rule can be laid down that will cover every case or fix in advance the limit of the matters that may be taken into consideration by the commissioners in any particular case. Evidence of such matters, of course, must be relevant. Here, it must be relevant to the question of what constitutes just compensation ” required by the Constitution and “ just and equitable compensation which ought justly to be made by the city of New York to the owners or the persons interested in the real estate sought to be acquired or affected,” as required by the terms of the act authorizing the taking (Laws of 1905, ch. 724, § 12) as of the date of taking.

Speaking generally, it maybe said that, in condemnation cases, evidence as to the age, location, condition, productiveness or lack thereof, cost, and adaptable uses of the property taken or affected by the taking properly has been held relevant to the issue. Evidence of reproduction cost of structures affected less depreciation, improvements made on the property, consequential damage to portions not appropriated, and the fair market value of the property taken as of the date of appropriation may be relevant, according to the situation in a particular case. There may be many other matters open for consideration by the commissioners. Omission of an attempt to enumerate all is of no consequence here. It would be a difficult and unsatisfactory venture. No single element standing alone is decisive.

In any solution by the commissioners in condemnation proceedings of the question up for determination, there is involved to an appreciable extent a problem of valuation. Neither in the Constitution nor in the act before us is “ value ” specified in terms as the criterion of just and equitable compensation for the appropriation of real property. Such compensation, however, cannot be less than the “ fair market value ” of the property taken in terms of cash as of the particular date of taking plus consequential damages to the owner (South Buffalo Ry. Co. v. Kirkover, supra; Smith v. Commonwealth, 210 Mass. 259, 261). “Pair market value” means neither panic value, auction value, speculative value, nor a value fixed by depressed or inflated prices. A fair market value is not established by sales where prices offered are so small that only sellers forced to sell will accept them. The mere absence of competitive buyers does not establish lack of a real market. But a market in fact may be established only where there are willing buyers and sellers in substantial numbers. When there is no real market as of a particular date, some indication of the intrinsic economic and commercial value of the property to the owner and of his loss from the appropriation as of that date may be shown by evidence of the “ fair market value ” of the property, if in substantially the same condition, at the nearest earlier date when there was a fair market. “ Fair market value ” of property actually taken as of the date of appropriation resides in an estimate and a determination of what is the fair, economic, just and equitable value under normal conditions (Howell v. State Highway Dept., 167 S. C. 217). All elements of value that inhere in the property should be considered (Heiman v. Bishop, supra; Olson v. United States, 292 U. S. 246, 255, 256).

In the case at bar, evidence was admitted which indicated that appellants’ property had no market value on November 16, 1936, and that there was not then and had not been since the fall of 1930 any fair market for real property in the locality where the property in question was situate. The record contains a description of the general financial and economic conditions and market conditions for real estate existing over a period of ten years preceding the date of taking. A witness testified that there had been no substantial change in the physical condition of appellants’ property as a whole since the fall of 1930. He gave evidence of its fair market value as of that date. Another witness was permitted to testify as to its fair market value at that time. The award was much lower than the 1930 value fixed by either witness. The city objected to the admission of the testimony of the 1930 value. No error is presented on the record before us in the admission of such evidence. It tended to show what was the intrinsic commercial value of the property as of that date. It was proper for consideration by the commissioners, in connection with the other evidence in the case, on the question as to what was the just and equitable compensation that must be made to the owner under the constitutional mandate and under the statutory requirement (Laws of 1905, ch. 724, § 12) for property taken from him for public use.

The order of the Appellate Division so far as appealed from should be reversed and the order of the Special Term affirmed, with costs in the Appellate Division and in this court. The question certified should be answered in the negative.

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

Ordered accordingly.


source: Caselaw Access Project

license: Public Domain

text:
    The People of the State of New York, Respondent, v. Arthur Perry, Appellant.

      Argued March 3, 1938;
    decided April 12, 1938.

      C. Hutchley Riley and Henry P. Lipscomb for appellant.
    The court erred in permitting improper and prejudicial cross-examination and rebuttal evidence by itself and by the District Attorney. (People v. Rosenzweig, 265 N. Y. 323; People v. Slover, 232 N. Y. 264; People v. Freeman, 203 N. Y. 267; People v. Malkin, 250 N. Y. 185; People v. Crapo, 76 N. Y. 288; People v. Irving, 95 N. Y. 541; People v. Tice, 131 N. Y. 651; People v. Webster, 139 N. Y. 73; People v. Michor, 226 App. Div. 569; People v. Rutigliano, 261 N. Y. 103; People v. Dolce, 261 N. Y. 108.) The rights of the defendant were violated in admitting rebuttal testimony to contradict collateral matters. (People v. De Gamo, 179 N. Y. 130; People v. Figaro, 218 App. Div. 638; People v. Dietz, 216 App. Div. 23; People v. Malkin, 250 N. Y. 185; People v. Balen, 241 App. Div. 422.) The court erred in admitting prejudicial, incompetent evidence on the theory that it tended to prove motive. (People v. Creasy, 236 N. Y. 205; People v. Bennett, 49 N. Y. 137; People v. Fitzgerald, 156 N. Y. 253; People v. Harris, 136 N. Y. 423; Manning v. John Hancock Mut. Life Ins. Co., 100 U. S. 693; United States v. Ross, 92 U. S. 281; Lamb v. Union Ry. Co., 195 N. Y. 260; People v. Razezicz, 206 N. Y. 249.) It was error to offer in rebuttal the letter purporting to have been written by deceased to her mother. (People v. Creasy, 236 N. Y. 205.) The court erred in its charge to the jury and refusal to charge as requested by defendant. (People v. Barberi, 149 N. Y. 256; People v. Velleman, 247 App. Div. 172; People v. Morelli, 243 App. Div. 587; People v. Razezicz, 206 N. Y. 249; Lamb v. Union Ry. Co., 195 N. Y. 260; People v. Barbato, 254 N. Y. 170; People v. Russell, 266 N. Y. 147.)

      Charles P. Sullivan, District Attorney {John H. W. Krogmann of counsel), for respondent.
    The guilt of the defendant was established beyond a reasonable doubt. (People v. Gonzalez, 35 N. Y. 49; People v. Roach, 215 N. Y. 592; People v. Place, 157 N. Y. 584; People v. Cohen, 223 N. Y. 406.)
   Rippey, J.

The defendant was convicted of the crime of murder in the first degree for the alleged killing of his wife late in the evening of July 1, 1936. The body was discovered at about seven-fifteen on the morning of July 2d lying on the ground at or near the corner of One Hundred and Fifty-seventh and Tuckerton streets, Jamaica, below the elevated tracks of the Long Island Railroad. The surroundings indicated the possibility of a struggle. Near the body were found a man’s Oxford shoe and, about fifty feet away, a chunk of cement. When the body was moved, an. electric flat-iron was discerned and also an envelope containing an electric light-gas bill, three pictures, a memorandum book, and some miscellaneous slips of paper. The shoe, flat-iron and envelope and contents were the property of a man by the name of Palm. It was the theory of the People that the defendant had planted these articles at the scene of the crime to divert suspicion from himself to Palm, and a considerable portion of the trial was devoted by the prosecution to the establishment of Palm’s innocence. The autopsy disclosed the cause of death as laceration and hemorrhage of the brain following a fracture of the skull, and medical opinion was produced to the effect that the skull fracture might have been caused by a blow from the electric flat-iron or from the chunk of cement.

The evidence by which the People sought to connect the defendant with the commission of the crime was purely circumstantial. Much reliance was placed by the prosecution upon expert testimony. We need not review it in detail and only pause to say that it was not of such a strong and convincing character as to permit the court to overlook errors prejudicial to the defendant during the conduct of the trial. The prosecution attempted to establish motive. To that end, it was claimed that the defendant committed the crime for the purpose of procuring the payment of a small sum from the Metropolitan Life Insurance Company on a policy which it carried on the life of the deceased. Evidence was introduced to indicate that the policy had lapsed a short time before the homicide and that on the day preceding the homicide the necessary premiums had been paid by an unidentified colored man to the company for the purpose of reinstating the policy, but there was no evidence that defendant had ever handled the policy or attended to the payment of the premium or that he was aware that the policy had lapsed or that he had paid the item which brought about its reinstatement and he was not named as beneficiary in the policy. While the motive, if proven, was material, it was not established by the proofs and was purely speculative. “ It cannot be imagined any more than any other circumstance in the case ” (People v. Fitzgerald, 156 N. Y. 253, 258). Prima facie, defendant had no motive for killing his wife. They had apparently lived happily and were living happily together at the time of the homicide. The prosecution produced no evidence of quarrels between the parties, of animosity of the defendant toward his wife, or of any conduct on his part from which any inference of any such feelings could be drawn. No family difficulties were shown, no strained relations between them. '

Defendant was taken into custody shortly before noon of July 2d and taken to a police station. Although he was questioned for many hours by different officers and also by an assistant District Attorney, and was charged by the detectives with the crime and efforts were made to procure a confession, there was no admission by the defendant nor any statement from him from which any inference might be drawn that he was involved in the crime. He denied any connection with the crime and gave explanations as to where he and his wife were the previous evening, why they were away from home, — his wife supposedly visiting her sister in preparation for a trip to South Carolina, and he, his relations in Brooklyn.

The defendant took the stand in his own behalf. Expert evidence was introduced to show that there were indications of blood in the sole of the shoe found at the scene of the crime. Palm testified that the shoes were his and that he had given them to the defendant some time prior to the homicide. The defendant testified that Palm had offered hi n the shoes some three weeks before his wife’s death, that he had tried them on, that they were too short and that he had given them back to Palm. Officers testified that a pair of dark socks were removed from the feet of the defendant at the police station and other evidence was introduced that there were blood stains on these socks, but the defendant denied that he had ever seen the socks, declared that he did not wear black socks and that they were not his. Defendant testified in circumstantial detail concerning the movements of his wife and of himself on the day and evening preceding her death and gave testimony concerning matters important to his defense, of which no one else could know or testify. He denied that he had struck his wife or that he had seen her after about nine-thirty on the evening before her death when he saw her at the theatre and asserted he had no reason to wish for or cause her death. By his own evidence and by the evidence of others, he attempted to establish an alibi. His credibility became a most vital element in the case.

During the examination of defendant by the police officers on the day following the homicide, defendant mentioned a letter which he claimed that Palm had written to his wife, whereupon the officers took him to his sister’s home and procured the letter. The defendant then testified, in answer to questions by his counsel, that after he procured the letter he gave it to the officers and they returned to the station house to the same room where he had previously been questioned. His counsel then asked him, “ Q. Tell what took place then? A. Then after I got — After they got me back in the room, they started questioning me, started boxing me and kicking me around.” The prosecuting officer objected. The court then took the questioning in hand and compelled the defendant to go over in detail the alleged abuse which he received from the officers and required the defendant to attempt to point ouiythe officers in the courtroom. The subject was not followed up with questioning on that subject by counsel for the defendant. Early in the cross-examination of defendant the prosecution lined up various police officers in front of the defendant and asked him to point out the officers who had misused him, and, following this, the court immediately took further hand in the proceedings and requested an additional officer to come forward and further interrogated the defendant. Counsel for the People was permitted to cross-examine the defendant at great length in regard to the alleged beating which he received from the police officers. Having thus brought out all the details of the alleged beating, the prosecution then proceeded to prove that his story was incredible. It appeared that he was taken before a magistrate for arraignment on the day after the questioning by the police officers had been finished and he was asked whether be told the magistrate that the police officers had struck him, to which he replied in the negative. He was then asked whether he told the warden of the jail to which he was taken after arraignment or any officer there that he had been beaten up by the police officers, and the defendant answered in the negative. He was then asked whether he had told the judge before whom he was arraigned to plead to the indictment that any police officers had beaten him up, and the defendant answered that he had not. He was also asked whether he had any doctor examine him, and he replied in the negative. The court, still unsatisfied with the cross-examination of the defendant upon this collateral issue, again began questioning the witness and pressed a number of questions as to whether he told the doctor at the city prison that he had been beaten up by the officers or as to whether he had told his own attorney about it and where. At this point the counsel for the defendant objected to any further questioning along this line on the ground that it was purely collateral and immaterial and there was no confession in the case and that it was entirely improper. The defendant’s objection was overruled and the court continued the questioning. Various officers were called by the People on rebuttal who testified that they had not beaten up the defendant.

There was no connection between this testimony and the homicide. The only possible ground for the questioning was to destroy the credibility of the defendant. Of course, the defendant, having taken the stand, was subject to the usual tests for his credibility. While the extent of cross-examination was largely discretionary, nevertheless there is a limit to which discretion may be exercised, and there comes a time when improper cross-examination may constitute an error of law. In any event, the cross-examination being as to purely collateral matter, the District Attorney was bound by the answers adduced and was not entitled to contradict the testimony given by the witness (People v. De Garmo, 179 N. Y. 130). As in the De Garmo case, here the effect of the incompetent evidence upon the defense is so apparent that it need not be discussed at length.” (p. 135.) It need only be added that counsel for the People made much of the alleged impeachment of the defendant in his summary. He asked the jury whether they could believe the defendant as to the alleged beating in view of the testimony of the police officers and in view of the fact that the defendant.had only mentioned the beating once to Mr. Eiley (defendant’s counsel), that he had not told the lieutenant at the desk, that he had not told the magistrate when he was arraigned in court, that he had not told the warden in the jail, and that he did not tell his Honor, Judge Golden, when he was arraigned here,” that he was not attended by a doctor, and that all of the five officers in rebuttal had denied any such mistreatment. The court, in his charge, called the attention of the jury to the question of whether the defendant was telling the truth in regard to the beating. Although not in express words, by inference it was indicated that the fact defendant was beaten up, if true, was a material fact in the case. The court charged that if the jury believed any witness including the defendant himself ” had testified willfully falsely as to any material fact in this case * * * you may disregard the entire testimony of that witness, or you may accept so much as you believe to be true and reject that which you believe to be false.” This charge was not, of course, erroneous. In view of what has been said, however, we cannot speculate that the jury may not have found that defendant testified falsely as to the alleged beating and that he was therefore entitled to no credit at all.

During the presentation of the People’s case, a sister of the deceased girl was called to the stand and identified a letter as being in the handwriting of the deceased. The letter was thereupon marked for identification. Nothing more was heard of this letter until after both the People and the defendant had rested. Thereupon the District Attorney asked to be permitted to offer in evidence the exhibit in question for the purpose of contradicting the cross-examination of this defendant.” Objection was made to its introduction, was overruled, and defendant excepted. The opening which the District Attorney sought to use for the purpose of introducing this letter in evidence and thereby impeaching the defendant was brought out on his cross-examination as follows: “ Q. Did you keep your wife well supplied with food and clothing during the time of your marriage? A. Did I keep her supplied? Q. That was the question. A. I did. Q. And did she ever complain to you that you were not supporting her? A. No, sir, she never complained to me.” The letter was dated June 22, 1937, and was written by deceased to her mother in South Carolina. There was no evidence that the defendant had ever seen the letter prior to it being shown to bim at the time of the cross-examinatian in question, and he denied that he knew who wrote it. The daughter’s name was Shirley. Among other things the letter contained these statements: I am up hear having little heart trouble but I am making it alright so if I can get my fair I am coming home next month and bring Shirly and Sis children for the summer we are up hear half naked and half starved and I can’t go to work and tug with Shirly because Arthur don’t help me take her out and he expect me to stay home with her or I can’t get around with her much. So I am going to bring her home so I can work and get me some clothes and Shirly some. All Arthur doing is working and eating it up by himself and the divil take us. Sis tell me she will help me with my fair and I will bring her children to stay until September when school open so I am just in a tough spot. Summer is hear now and overcoat can’t hide them rags. I had Christmas so look for me next month, if nothing happens, and don’t you worry about me because you didn’t have no poor creater children Lucille and I go places now and enjoy our self and when I get interduced to any one I am Miss Brown (laugh) but I will be better if I get Shirly home Sis always keep her when I ready to go out. I spend from Saturday to Mond over in Brooklyn last week I always go to Bklyn when I get ready and stay long as I want to and dare him to say anything to me Arthur say he’s going to write his on letter to you this week ” The admission of the letter was erroneous and highly prejudicial.

The court incorrectly charged on the subject of alibi. It was not essential, as charged, that the alibi should cover the whole of the night-during which the homicide occurred (People v. Barbato, 254 N. Y. 170). Other alleged errors have been called to our attention which we would feel compelled to consider were it not for the fact that the errors above discussed were so patently prejudicial that they cannot be overlooked.

The judgment of conviction should be reversed and a new trial ordered.

Lehman, O’Brien, Hubbs, Loughran and Pinch, JJ., concur; Crane, Ch. J., concurs in result on the ground that the wife’s letter was hearsay and incompetent.

Judgment of conviction reversed, etc.


author: Htjbbs, J.

text:
    In the Matter of the Probate of the Will of Annie Katz, Deceased. David Reader et al., Appellants; Herman Katz et al., Respondents.
    Argued February 28, 1938;
    decided April 12, 1938.

      John P. Hurley and Emil N. Baar for appellants.
    The reading of the attestation clause by one of the subscribing witnesses at the request of the testatrix and in her presence and in the presence of the other subscribing witness was a sufficient request by the testatrix to the subscribing witnesses to sign. (Coffin v. Coffin, 23 N. Y. 1; Matter of Cottrell, 95 N. Y. 329; Auburn Seminary v. Calhoun, 25 N. Y. 422.)

      Ira H. Ruben and A. Louis Kiebel for Herman Katz, respondent.
    The evidence amply sustains the Surrogate’s decree and his findings. (Lewis v. Lewis, 11 N. Y. 220; Matter of Rapp, 194 App. Div. 88; Matter of McDonough, 201 App. Div. 203; Matter of Turell, 166 N. Y. 330; Woolley v. Woolley, 95 N. Y. 231; Matter of Beckett, 103 N. Y. 167; Matter of Andrews, 162 N. Y. 1.) The Surrogate performed all duties required by law and made every effort to sustain the will. (Matter of Schillinger, 258 N. Y. 186.)

      Martin Gollubier, as special guardian for Clifford Reader, an infant, respondent.
    The proponent has not sustained the burden of proof. (Rollwagen v. Rollwagen, 63 N. Y. 504; Matter of Schillinger, 258 N. Y. 186.) The doctrine of substantial compliance should in this instance yield to the intent of the Legislature in requiring certain formalities to be observed to make a will effective. (Gilbert v. Knox, 52 N. Y. 125; Matter of Andrews, 162 N. Y. 1; Matter of O’Neill, 91 N. Y. 516.)
   Htjbbs, J.

In this proceeding in Surrogate’s Court for the probate of a will, probate was denied “ because there is no proof that the attesting witnesses signed ‘ at the request of the testator.’ ” The learned Surrogate filed a written decision denying probate and thereafter a decree based upon such written decision and referred to therein.

It is apparent from a reading of the decision and decree that the Surrogate based his conclusion upon the ground that the statute, section 21 of the Decedent Estate Law (Cons. Laws, ch. 13) required positive direct testimony that the testatrix requested each of the subscribing witnesses to sign at the end of the will.” The law of this State seems to be settled to the contrary. It has been decided that a will may be admitted to probate even though the witnesses may have no recollection that a testator requested them to sign as witnesses.

The facts that their genuine signatures appear on the will at the proper place, that the will bears an attestation clause, that the signature of the testator is established, and that all of the facts surrounding the execution of the will tend to prove that the witnesses signed at the request of the testator, may clearly establish the fact that the witnesses signed at the testator’s request and entitle the will to probate. (Matter of Cottrell, 95 N. Y. 329; Trustees of Theological Seminary v. Calhoun, 25 N. Y. 422, and note; Matter of Nelson, 141 N. Y. 152.)

... The testimony in the case at bar upon the question of testatrix’s request of the witnesses to sign is confusing and unsatisfactory. There is, however, abundant evidence from which the Surrogate could have found as a fact that such request was made had he not been laboring under the misapprehension that the proof of a request to sign must be established by unequivocal testimony. It appears that testatrix went to her attorney’s office and instructed him to draw the will; that when the attorney’s clerk appeared at testatrix’s home and stated that he was there for the attorney, she stated, I know; ” that she asked to have the will read and that it was read. The will bore an attestation clause. The signatures were the genuine signatures of the testatrix and the witnesses. From that and other testimony in the record the Surrogate would have been justified in deciding that the witnesses who went to the testatrix’s home for the express purpose of having the will executed signed it as witnesses at her request.

“ It is, of course, too late to claim that the facts making due execution must all, or any of them, be established by the concurring testimony of the two subscribing witnesses. Both of those -witnesses must be examined, but the will may be established, even in direct opposition to the testimony of both of them. This is too well settled to call for the citation of authorities.” (Trustees of Theological Seminary v. Calhoun, supra, p. 425.)

The matter should be remitted to the Surrogate’s Court to determine as a question of fact in accordance with this opinion whether the will was executed as required by section 21 of the Decedent Estate Law.

The order of the Appellate Division and the decree of the Surrogate’s Court should be reversed and the matter remitted to the Surrogate’s Court for further proceedings in accordance with this opinion, with costs in all courts to the appellant payable out of the estate.

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

Ordered accordingly.


author: Per Curiam.

text:
    Marcel M. Holzer, Respondent, v. Deutsche Reichsbahn-Gesellschaft et al., Appellants, Impleaded with Others. The Government of Germany, Appellant.

      Argued January 6, 1938;
    decided April 12, 1938.

      J. Anthony Panuch for Deutsche Reichsbahn-Gesell-Schaft et al., appellants.
    The German law and decree discharging the plaintiff’s contract is an exercise of sovereignty by the German government over German nationals and affecting a contract made and performable entirely within the borders of the Reich. The law and decree must be given internal effect. (Pritchard v. Norton, 106 U. S. 124; Dougherty v. Equitable Life Assur. Soc., 266 N. Y. 71; Die Deutsche Bank Filiale Nurnberg v. Humphrey, 272 U. S. 517; Underhill v. Hernandez, 168 U. S. 250; Oetjen v. Central Leather Co., 246 U. S. 297; Ricaud v. American Metal Co., 246 U. S. 304; Wulfsohn v. Russian S. F. Soviet Republic, 234 N. Y. 372; Salimoff & Co. v. Standard Oil Co., 262 N. Y. 220; Hartford Accident & Indemnity Co. v. Delta & Pine Land Co., 292 U. S. 143; Home Ins. Co. v. Dick, 281 U. S. 397; Bradford Electric Light Co. v. Clapper, 286 U. S. 145; United States v. Belmont, 301 U. S. 324.)

      Philip F. Farley for Schenker & Co., appellant.
    The German law and decree discharged the plaintiff’s contract and the internal effect of such law must be recognized as a defense. (Pritchard v. Norton, 106 U. S. 124; Vanderhorst v. Kittredge, 229 App. Div. 126; Dougherty v. Equitable Life Assur. Soc., 266 N. Y. 71; Deutsche Bank Filiale Nuremberg v. Humphrey, 272 U. S. 517; Straus & Co. v. Canadian Pacific Ry. Co., 254 N. Y. 407; Citizens Nat. Bank v. Waugh, 78 Fed. Rep. [2d] 325; The Fri, 154 Fed. Rep. 333; Hartford Acc. & Ind. Co. v. Delta & Pine Land Co., 292 U. S. 143; Bradford Electric Light Co. v. Clapper, 286 U. S. 145; Underhill v. Hernandez, 168 U. S. 250; Home Ins. Co. v. Dick, 281 U. S. 397; United States v. Belmont, 85 Fed. Rep. [2d] 542; Oetjen v. Central Leather Co., 246 U. S. 297; Ricaud v. American Metal Co., 246 U. S. 304; Wulfsohn v. Russian Republic, 234 N. Y. 372; Salimoff v. Standard Oil Co., 262 N. Y. 220.) The complaint should be dismissed as to both defendants Reichsbahn and Schenker. (Salimoff v. Standard Oil Co., 237 App. Div. 686; 262 N. Y. 220.)

      Samuel R. Wachtell for respondent.
    The law of April seventh violates fundamental concepts of morality and public policy in this State. The Special Term was entitled to inquire into the nature, operation and results of this law and to refuse to sustain a defense based on it. (Russian Reinsurance Co. v. Stoddard, 240 N. Y. 149; James & Co. v. Second Russian Ins. Co., 239 N. Y. 248; Guinness v. Miller, 291 Fed. Rep. 769; People v. Hawkins, 157 N. Y. 1; Meacham v. Jamestown, F. & C. R. R. Co., 211 N. Y. 346; Barth v. Backus, 140 N. Y. 230; Straus & Co. v. Canadian Pacific Ry. Co., 254 N. Y. 407; Lemmon v. People, 20 N. Y. 562; Matter of Ziegler, 82 Misc. Rep. 346; Rice v. Dannenbaum, 32 Vt. 460.) The law upon which the second defense rests is a breach of our own law. (Seton Maitland & Co. v. Low, 1 Johns. Cas. 1; The Paquete Habana, 175 U. S. 677; Respublica v. Keating, 1 Dall. 110; The Scotia, 14 Wall. 170; The New York, 175 U. S. 187; Kansas v. Colorado, 185 U. S. 125; 206 U. S. 46.)
   Per Curiam.

The complaint alleges two causes of action arising out of a contract between plaintiff, a German national, and Schenker & Co. G. m. b. H., a German corporation, for services to be performed by plaintiff for three years from January 1, 1932, in Germany and in other locations outside this State. Defendants, German corporations, controlled either through stock ownership or otherwise, the transportation system known as Schenker & Co.

Both causes of action allege that the contract provides that “ in the event the plaintiff should die or become unable, without fault on his part, to serve during the period of the contract the defendants would pay to him or his heirs the sum of 120,000 marks, in discharge of their obligations, under the hiring aforesaid.”

The first cause of action alleges that on June 21, 1933, defendants discharged plaintiff as of October 31, 1933, upon the sole ground that he is a Jew and that as the result of such discharge he was damaged in a sum upwards of $50,000.

The second cause of action alleges that in April, 1933, the German government incarcerated plaintiff in prison and in a concentration camp for about six months, that his imprisonment was not brought about by any act or fault of plaintiff but solely by reason of the policy of the government which required the elimination of all persons of Jewish blood from leading commercial, industrial and transportation enterprises, that as a result “ plaintiff became unable, without any fault on his part, to continue his services from the month of April 1933,” and has been damaged in the sum of $50,000.

The second separate defense of defendant Deutsche Reichsbahn-Gesellschaft alleges that the contract of hiring was made and was to be performed in Germany, was terminated in Germany and is governed by the laws of Germany, that subsequent to April 7, 1933, the government of Germany adopted and promulgated certain laws, decrees and orders which required persons of non-Aryan descent, of whom plaintiff is one, to be retired.

The Special Term granted plaintiff’s motion to strike out this defense, the Appellate Division affirmed and certified these questions: “ (1) Is the second separate defense contained in the answer of the defendant, Deutsche Reichsbahn-Gesellschaft, sufficient in law upon the face thereof? (2) Does the complaint herein .state facts sufficient to constitute a cause of action? ”

The courts of this State are empowered to entertain jurisdiction of actions between citizens of foreign countries or other States of this Union based upon contracts between non-residents to be performed outside this State. (Hutchinson v. Ward, 192 N. Y. 375; Wedemann v. U. S Trust Co., 258 N. Y. 315, 317, 318; Meyers v. Credit Lyonnais, 259 N. Y. 399.) Under the decisions of this court and of the Supreme Court of the United States, the law of the country or State where the contract was made and was to be performed by citizens of that country or State governs. (Salimoff & Co. v. Standard Oil Co., 262 N. Y. 220.) Within its own territory every government is supreme (United States v. Belmont, 301 U. S. 324) and our courts are not competent to review its actions. (Wulfsohn v. Russian S. F. S. Republic, 234 N. Y. 372.) We have so held, “ however objectionable ” we may consider the conduct of a foreign government. (Dougherty v. Equitable Life Assur. Soc., 266 N. Y. 71, 83.) “ Every sovereign state is bound to respect the independence of every other sovereign state, and the courts of one country will not sit in judgment on the acts of the government of another done within its own territory.” (Oetjen v. Central Leather Co., 246 U. S. 297, 303.) In the Dougherty case {supra, at p. 90) we have held: It cannot be against the public policy of this State to hold nationals to the contracts which they have made in their own country to be performed there according to the laws of that country.”

Therefore, in respect to the first cause of action, we are bound to decide, as a matter of pleading, that the complaint does not state facts sufficient to constitute a cause of action and that the second separate defense of the answer is sufficient in law upon its face. Defendants did not breach their contract with plaintiff. They were forced by operation of law to discharge him.

In respect to the second cause of action, the result is necessarily different. We are dealing merely with pleadings. Assuming, as alleged, that plaintiff became unable without any fault on his part to continue his services subsequent to April, 1933, that part of the agreement which is alleged to provide that in the event the plaintiff should die or become unable, without fault on his part, to serve during the period of the contract the defendants would pay to him or his heirs the sum of 120,000 marks, in discharge of their obligations, under the hiring aforesaid,” must be interpreted according to German law and the meaning of German words. What that law is depends upon the solution of questions of fact which must be determined on the trial. If the English words become unable” are a correct translation of the German words -ei/ployed in the contract, then they would not appear to be limited to inability caused by physical illness but might be intended to apply to any factor which might prevent his service.

The order should be modified by reversing so much thereof as grants plaintiff’s motion to strike out the second separate defense in the answer as applied to the first cause of action. It should be affirmed as to the second cause of action and the certified questions answered as follows: (1) As to the first cause of action, “ Yes.” As to the second cause of action, “ No.” (2) As to the first cause of action, “ No.” As to the second cause of action, “ Yes.”

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

Ordered accordingly.


text:
    The People of the State of New York, Respondent, v. Heckman Trucking Co., Inc., Appellant.

      Argued March 15, 1938;
    decided April 12, 1938.

      Robert M. Davitt, Fred 0. Nelson, Jr., and Barlcer D. Leich for appellant.
    The activities of- the vehicle in question do not bring the defendant within the purview of the ordinance involved (New York Code of Ordinances, ch. 14, art. 11, § 140). (People v. Bridge Auto Renting Corp., 272 N. Y. 637.)

      William C. Chanter, Corporation Counsel (Alan M. Stroock, Paxton Blair and James Hall Prothero of counsel), for respondent.
    The business of the defendant was that of a public cartman. Its contract with the lessee does not relieve the defendant from the duty to take out a license. (Fleming v. People, 27 N. Y. 329; Agnew v. United States, 165 U. S. 36; State of N. Y. ex rel. Pennsylvania R. R. Co. v. Knight, 192 U. S. 21; City of Brooklyn v. Breslin, 57 N. Y. 591; Reavley v. State, 124 Tex. Crim. Rep. 528; Breuer v. Public Utilities Comm., 118 Ohio St. 95; Erb v. Public Service Comm., 93 Pa. Super. Ct. 421.)
   Per Curiam.

This case was tried upon an agreed statement of facts. The Seaboard Freight Lines, Inc., is an interstate motor carrier under regulation of the Interstate Commerce Commission. It leased a truck from Heckman Trucking Company and exercised exclusive control over it. Goods had been deposited in the Seaboard terminal in New York city and were picked up by this truck which was delivering the goods within New York city. No charge was made by Seaboard for the delivery, the expense of the local delivery being covered by the over-all cost of transportation covered by the bill of lading.

This truck was stopped and the company was charged with a violation of an ordinance for failure to show a license. Chapter 14, article 1, of the Code of Ordinances of the City of New York provides:

Section 1. When required.

* * *

(m) Public carts and cartmen: * * * No persons shall engage in, or carry on any business, trade or occupation or maintain any place or thing specified in this section without a license therefor.”

Article 11. * * *

“ Section 140. Definitions.

“ Every vehicle, of whatever construction drawn by animals or propelled by any motor power, which is kept for hire or used to carry merchandise, household or office furniture or other bulky articles within the city, for pay, shall be deemed to be a public cart, and the owner thereof shall be deemed to be a public cartman.”

The chapter (§ 144) also regulates the amount of charges that may be made in the absence of a special contract by public cartmen, the charge depending upon the size and kind of truck used. The chapter (§1, subd. [m]) clearly only applies to public cartmen. It was so decided in. People v. Bridge Auto Renting Corp. (272 N. Y. 637). A public cartman is a common carrier. (Stevenson & Co. v. Hartman, 231 N. Y. 378.)

The defendant is a New York corporation. It leased seven trucks to the Seaboard Company bub has many other trucks. It takes out licenses on its other trucks but not on those seven. The seven trucks were used by the lessee in its business. The truck in question was one of the seven so leased. The defendant did not exercise any control over the leased truck. The sole control was exercised by the lessee. At the time of defendant’s arrest, the truck was not kept for hire or used * * * for pay.” At the time the defendant was not using the truck as a public cartman. Defendant had parted with possession and control of the truck and it was vested in the lessee.

We do not pass upon the other questions briefed.

The judgments should be reversed and the proceeding dismissed.

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

Judgments reversed, etc.


text:
    Florence B. Sciaky, Appellant, v. Rodgers & Hagerty, Inc., Respondent, Impleaded with Another.
    Submitted March 8, 1938;
    decided April 12, 1938.

      Murray L. Halpern, Paul Englander, I. Vernon Werbin and Bennett E. Siegelstein for appellant.
    The plaintiff is entitled to interest on the verdict from the date when the damage accrued. (Weprin & Glass Building Corp. v. Rosoff Subway Constr. Co., 269 N. Y. 672; Parrott v. Knickerbocker & New York Ice Companies, 46 N. Y. 361.)

      Harry Merwin and John F. Collins for respondent.
    Interest on the verdict should be computed from the date of the commencement of the action. (Civ. Prac. Act, § 480; de Carricarti v. Blanco, 121 N. Y. 230; Sickles v. Herold, 149 N. Y. 332; Cutter v. New York, 92 N. Y. 166; Aronowsky v. Goldberger-Raabin Co., 250 App. Div. 731; Freedman v. Hart & Early Co., 162 Misc. Rep. 487.)
   Per Curiam.

We are of opinion that interest on the verdict should be added from the time the damage accrued. (See Weprin & Glass Building Corp. v. Rosoff Subway Constr. Co., 269 N. Y. 672.)

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

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

Judgment accordingly.


text:
    City of New York, Respondent, v. Staten Island Rapid Transit Railway Company, Appellant.
    Argued March 9, 1938;
    decided April 12, 1938.

      William D. Whitney, John F. Harding and Harold R. Medina, Jr., for appellant.
    The city has no sufficient proprietary interest in the street to entitle it to maintain an action for trespass. (Edwards v. Noyes, 65 N. Y. 125; Miller v. Long Island R. R. Co., 71 N. Y. 380; Adams v. Warner, 209 App. Div. 394; People v. Kerr, 27 N. Y. 188; Driggs v. Phillips, 103 N. Y. 77; St. Vincent Orphan Asylum v. City of Troy, 76 N. Y. 108; City of New York v. Rice, 198 N. Y. 124; Waterloo Water Co. v. Village of Waterloo, 200 App. Div. 718; Lincoln Safe Deposit Co. v. City of New York, 210 N. Y. 34; Beekman v. Third Avenue R. R. Co., 153 N. Y. 144; Village of Oxford v. Willoughby, 181 N. Y. 155; Village of Haverstraw v. Eckerson, 192 N. Y. 54; Acme Realty Co. v. Schinasi, 215 N. Y. 495; D., L. & W. R. R. Co. v. City of Buffalo, 158 N. Y. 266.)

      William C. Chanler, Corporation Counsel (Paxton Blair, Arthur A. Segall and Alan M. Stroock of counsel), for respondent.
    Whatever may be the extent of the city’s title to its streets, it is adequate to sanction the pursuit of remedies calculated to make more effective their dedication to the public use. An action of trespass against persons interfering with the public’s user may, therefore, be maintained. (County of Wayne v. Miller, 31 Mich. 447; Walnut & Quince Corp. v. Miller, 303 Penn. St. 25; People ex rel. Abraham v. Perley, 67 Misc. Rep. 471; 143 App. Div. 915; 202 N. Y. 620; Bradley v. Degnon Contracting Co., 224 N. Y. 60; Mott v. Eno, 181 N. Y. 346; Appleton v. City of New York, 219 N. Y. 150; Hoboken Land & Imp. Co. v. Hoboken, 36 N. J. L. 540; People ex rel. Metropolitan Street Ry. Co. v. Tax Commrs., 174 N. Y. 417; 199 U. S. 1; Village of Stillwater v. Hudson Valley Ry. Co., 255 N. Y. 144; Mayor v. Ward, 2 Strange, 1238; Mayor v. Swann, 2 Wm. Bl. 1116; Seneca Road Co. v. Auburn & Rochester R. R. Co., 5 Hill, 170; City of Cleveland v. Cleveland, Cin., Chic. & St. L. Ry. Co., 93 Fed. Rep. 113; City of Chicago v. Wright, 69 Ill. 318; Cowper v. Cowper, 2 P. Wms. 720; Paget v. Gee, Ambler 807.) That its officers were not more alert in discovering the trespass and demanding that the defendant vacate, cannot prejudice the city, for the defendant knew its own acts were unlawful. (Village of North Pelham v. Ohliger, 216 App. Div. 728; 245 N. Y. 593.)
   Per Curiam.

The question certified is whether the first cause of action of the third amended complaint states facts sufficient to constitute a cause of action. This cause of action alleges that prior to the year 1921, defendant, without obtaining the consent of plaintiff, constructed on Wave street in the borough of Bichmond a spur track and siding connecting with its main line and that without right or authority continued until October 19, 1935, to operate this spur track. The law is settled that under such conditions a municipal corporation may not recover for use and occupation of public highways. (City of New York v. Bee Line, Inc., 271 N. Y. 595; City of New York v. Tompkins Bus Corp., 271 N. Y. 597.) The present action is based upon a trespass by defendant. We hold that no essential difference in principle exists on the facts as pleaded between a right to recover for use and occupation of a public highway and for damages for a trespass thereon. In each instance compensation is sought for an illegal act which, during the years, the municipal authorities made no effort to prevent.

The orders so far as appealed from should be reversed, with costs in all courts, and the certified question answered in the negative.

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

Ordered accordingly.


text:
    Sydney Rosenthal, Appellant, v. City of New York, Respondent.

      Argued March 17, 1938;
    decided April 12, 1938.

      Charles H. Tuttle and Sydney S. Snyder for appellant.
    Inasmuch as the operations of the plaintiff’s assignor after January 30, 1934, were without franchise and illegal, such operations and the plaintiff’s assignor were not thereafter under the supervision of either division of the Department of Public Service; and the local laws in question had no application thereto. (Klinkenstein v. Third Ave. Ry. Co., 246 N. Y. 327; Schafer v. City of New York, 206 App. Div. 747; Huff v. City of New York, 202 App. Div. 425; Bogart v. Walker, 231 App. Div. 499; City of New York v. Bee Line, Inc., 246 App. Div. 28; 271 N. Y. 595; Clark v. LaGuardia, 248 App. Div. 587; 273 N. Y. 639.) The intention of the city was not to include within the class taxed such corporations as plaintiff’s assignor, and it lacked constitutional power to make such inclusion. The illegal bus operation was not privileged in any sense. (Bogart v. Walker, 231 App. Div. 499; Brooklyn City R. R. Co. v. Whalen, 191 App. Div. 737; 229 N. Y. 570; Huff v. City of New York, 202 App. Div. 425; Kingsbridge Ry. Co. v. City of New York, 204 App. Div. 369; Matter of Walsh v. LaGuardia, 245 App. Div. 835; 269 N. Y. 437.) “ Supervision ” implies a legal business, operation or subject-matter, capable of lawful oversight, control, regulation and direction. (McCarthy v. Board of Supervisors, 115 Pac. Rep. 458; Peterson v. Time Indemnity Co., 140 N. W. Rep. 286; Von Rosenberg v. Levett, 173 S. W. Rep. 508; Long Island R. R. Co. v. Dept. of Labor, 256 N. Y. 498.)

      William C. Chanler, Corporation Counsel {William G. Mulligan, Jr., and Charles W. Miller of counsel), for respondent.
    The local laws applied to plaintiff’s assignor. (Brooklyn City R. R. Co. v. Whalen, 229 N. Y. 570; City of New York v. Village of Lawrence, 250 N. Y. 429; Leary v. City of New York, 273 N. Y. 342; Huff v. City, 202 App. Div. 425.) The local laws do not become invalid because they applied to plaintiff’s assignor. (New York Steam Corp. v. City of New York, 268 N. Y. 137.) The city was entitled to offset against plaintiff’s claim the taxes accrued and owing to it by plaintiff’s assignor on the date of the assignment to plaintiff. The court below properly fixed the amount of offset. (Keon v. Saxton & Co., 257 N. Y. 412; United States v. Stafoff, 260 U. S. 477; Foster v. Speed, 120 Tenn. 470; Welsh v. State, 126 Ind. 71; Butzman v. Whitbeck, 42 Ohio St. 223.)
   Per Curiam.

The illegal activity of plaintiff’s assignor in operating unfranchised buses upon public streets was not a business “ subject to the supervision ” of the Department of Public Service in the sense of that phrase as used in the local laws in question. (Local Law 1933, No. 19, p. 127; Local Laws 1934, Nos. 10 and 21 [published as No. 22], pp. 115, 151.) These laws make a classification for tax purposes. When regard is had for the manifest policy underlying that classification, it is clear that unlawful undertakings are not included in the group upon which the tax is imposed. (New York Steam Corp. v. City of New York, 268 N. Y. 137; New York Rapid Transit Corp. v. City of New York, 275 N. Y. 258; 303 U. S. -; 58 Sup. Ct. Rep. 721.)

The judgment of the Appellate Division should be reversed and that of the Trial Term affirmed, with costs to the appellant in this court and in the Appellate Division.

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

Judgment accordingly.


author: Lehman, J.

text:
    In the Matter of Patrick H. Bird, Respondent, against Joseph D. McGoldrick, as Comptroller of the City of New York, Appellant.

      Argued February 28, 1938;
    decided April 12, 1938.

      William C. Chanter, Corporation Counsel (Paxton Blair and Willard M. L. Robinson of counsel), for appellant.
    The petitioner comes within the rule that public officials are insurers of the safe custody of public moneys collectible by them, and freedom from negligence is no defense. (Board of Education v. Jewell, 44 Minn. 427; State v. Huxtable, 178 Ark. 361; Tillinghast v. Merrill, 151 N. Y. 135; City of New York v. Fox, 232 N. Y. 167; Union Bank & Trust Co. v. Los Angeles County, 74 Pac. Rep. [2d] 240; City of Duluth v. Ross, 140 Minn. 161; City of Chicago v. Southern Surety Co., 239 Ill. App. 628; Yawger v. American Surety Co., 212 N. Y. 292; United States v. Prescott, 3 How. 578; Smythe v. United States, 188 U. S. 156; Town of Mansfield v. Hanaford, 250 Mass. 559; State v. Nevin, 19 Nev. 162; McEachron v. New Providence, 35 N. J. L. 528; Commonwealth v. Comly, 3 Penn. St. 372; Forest County v. Poppy, 193 Wis. 274.) Lack of control over the selection of subordinates does not excuse petitioner. (Matter of Friedman v. Finegan, 268 N. Y. 93; Matter of Kraus v. Singstad, 275 N. Y. 302; Aversa v. Finegan, 164 Misc. Rep. 162; 250 App. Div. 752; 275 N. Y. 512; Bryan v. United States, 90 Fed. Rep. 473; U. S. Fidelity & Guaranty Co. v. United States, 91 Fed. Rep. [2d] 848.)

      Daniel J. Mannix for respondent.
    The alleged defense now relied upon is insufficient in law. (United States v. Rogde, 214 Fed. Rep. 283; Dunlop v. Monroe, 7 Cranch, 242; Dowler v. Johnson, 225 N. Y. 39; Walsh v. Trustees, 96 N. Y. 427; Bieling v. City of Brooklyn, 120 N. Y. 98; Lloyd v. Mayer, 5 N. Y. 369; Donovan v. McAlpin, 85 N. Y. 185; Veatch v. Broderick, 146 Misc. Rep. 848; City of New York v. Fox, 232 N. Y. 167; Matter of Williams v. Darling, 67 Misc. Rep. 205; People ex rel. Conway v. Barker, 14 Misc. Rep. 360; United States v. Adams, 54 Fed. Rep. [2d] 764; Van Vorce v. Thomas, 18 Cal. App. [2d] 723; Zinkhan v. District of Columbia, 271 Fed. Rep. 542; Great Northern Ins. Co. v. Young, 32 Dominion Law Rep. 238; Reum v. Rutherford, 37 Dominion Law Rep. 715; State of Alabama v. Kolb, 78 So. Rep. 817.)
   Lehman, J.

The petitioner, Patrick Bird, is the clerk of the Municipal Court of the City of New York, Borough of Manhattan, Third District. The salary attached to that position is three thousand five hundred dollars per annum. He has not been paid his salary for the four months from January to April, 1936. The reason given by the Department of Finance of the city is that the Commissioner of Accounts reported to the Comptroller that an audit of the accounts of the petitioner showed “ that fees amounting to the sum of $11,562.66 which were or should have been collected in petitioner’s office during the period from April 27, 1926, to December 31, 1933, had not been accounted for and paid into the City Treasury by the clerk of the court.”

The petitioner obtained an alternative order of mandamus which required the Comptroller to pay to the petitioner his salary or to show cause why such payment should not be made. Upon the trial of the alternative order, it appeared that the petitioner had not been guilty of any personal delinquency, and had not failed to account for all fees or money which he had received personally. No charges of wrongdoing were ever filed against him, and it does not appear that there has been even suspicion or whisper of wrongdoing on his part. Much of the work of the office of clerk of the Municipal Court was performed by assistants and subordinates of the clerk. The clerk had some power of direction and supervision of the work of the office, but he did not have power to choose or to remove the assistants and subordinates who performed much of that work. They were required to collect and pay over fees fixed by law. During the years from 1926 to 1935, fees amounting to nearly one million dollars were actually collected and paid over; but an audit made by accountants indicated that about $11,000 in addition, should have been collected and paid over.

The petitioner does not seriously challenge the existence of a shortage in the fees that should have been collected. A court interpreter, Othmar Schmidt, was occupied only a few hours a week by his court duties. At times when not so occupied he was directed to work in the “ cage ” where fees are paid, though he was not bonded like other assistants whose duty it was to handle public moneys. Schmidt has been convicted of forgery in the third degree, and though at this trial there was no attempt made to show that he has embezzled fees received by him and then by forgery concealed his embezzlement, yet it may fairly, be inferred that he is responsible for some or all of the alleged shortage. That shortage, it is plain, consisted, in large part, of moneys actually collected for jury fees and other court fees, as shown by indorsements on court papers and documents, but which are not recorded in the cash book. In part, however, it may have been due to failure to collect fees fixed and exacted by law.

The Municipal Court Code, section 143 (Laws 1915, ch. 279, as amd. by Laws 1928, ch. 614), provides that the clerk of the Municipal Court in each district shall, among other things,

6. Assume charge and control of, and be responsible for, the general conduct of the business of his office and for the faithful discharge of the duties of the deputy and assistant clerks and other officers connected with the court.

7. Collect and receive all the fees, and account for and pay the same into the city treasury monthly, under oath, on the first day of each and every month or within three days thereafter, which account shall contain the title of each case and the amount of fees received therein; and the salary of such clerk shall not be paid until he shall have so accounted and paid. He shall perform no service until he shall have received the legal fees therefor.”

At the trial held -under the alternative order of mandamus, the trial judge charged the jury that the question for them to decide was whether the alleged shortage was the result of any personal dereliction of the petitioner, either of commission or of omission; and that the petitioner could not be charged with responsibility for dereliction of an assistant or subordinate not chosen by him. The jury found in favor of the petitioner and upon its verdict a final peremptory order of mandamus which directed the Comptroller to pay to the petitioner the salary due to him, was granted at Special Term. The question to be decided upon this appeal is whether the law imposes upon the petitioner responsibility for any failure to collect, account for and pay over lawful fees regardless of whether or not such failure is due to dereliction on his part.

The measure of the liability of a public official, having custody of public moneys, for the loss of such moneys has long troubled the courts. In Lane v. Cotton and Frankland (1 Ld. Raymond, 646 [1701]) the court held, Sir John Holt, Ch. J., dissenting, that no personal liability exists except for personal misfeasance or neglect, and that a public officer may not be held responsible for misconduct of his subordinates. (Cf. Whitfield v. Le Despencer, Cowp. 754.) In Supervisors of Albany County v. Dorr (25 Wend. 440 [1841]) a similar question was presented, and the Supreme Court of the State, citing the English cases and some American authorities, judicial and extra-judicial, unanimously decided that liability of public officers for the loss of moneys in their custody is “ brought down to the ordinary case of misfeasance or neglect by the defendants themselves in the duties of their office” (p. 442). An appeal was taken to the Court of Errors, and that court divided equally upon the question and a technical affirmance of the judgment of the Supreme Court resulted (7 Hill, 583).

The affirmance by an equally divided court was not regarded as an authoritative decision definitely settling the law. The question was still regarded as open until the decision of this court in Tillinghast v. Merrill (151 N. Y. 135) and in that case this court definitely overruled the decision in Supervisors of Albany County v. Dorr (supra) and held that the weight both of argument and of authority in America is in favor of the rule of strict liability which requires a public official to assume all risks of loss and imposes upon him the duty to account as a debtor for the funds in his custody ” (p. 142). The court there left open only the question of whether this strict liability would include a case where the funds are lost by the act of God or the public enemy ” (citing United States v. Thomas, 15 Wall. 337).

From the time when the courts were first called upon to determine the measure of liability of a public official for moneys in his custody, judges have recognized that choice of any rule must depend upon the weight to be g^ven to conflicting considerations of public policy. The dissent of Sir John Holt from the early decision in Lane v. Cotton and Frankland (supra), that a postmaster is not responsible for money stolen or lost without his fault, was based upon the ground that a sound public policy dictated the rule of strict liability in order to prevent frauds. The choice made by this court of the rule of strict liability in Tillinghast v. Merrill (supra) was in large degree based upon similar views of public policy. “ * * * we must consider and decide this question upon general principles and in the light of public policy * * * it shocks the sense of justice that the public official should be held to any greater liability than the old rule of the common law which exacted proof of misconduct or neglect.

It is at this point, however, that the question of public policy presents, and it may well be asked whether it is not wiser to subject the custodian of the public moneys to the strictest liability, rather than open the door for the perpetration of fraud in numberless ways impossible of detection, thereby placing in jeopardy the enormous amount of the public funds constantly passing through the hands of disbursing agents ” (p. 142).

There can be no doubt that the rule of strict liability for moneys received by a public official is in accord with the great weight of authority in this country. Indeed, the decisions, both Federal and State, are almost uniform. Many are cited in the opinion in Tillinghast v. Merrill (supra), and it would serve no useful purpose to add later citations which also support the rule. Even so, a careful analysis of recent decisions seems to indicate a growing sense of the injustice of imposing liability upon a public official without exacting proof of misconduct or negligence on his part, especially where loss is due solely to the dereliction of a subordinate who is not chosen by the official held liable. Though this court has reiterated the rule of a public officer’s strict and almost absolute liability for public moneys received by virtue of his office (Yawger v. American Surety Co., 212 N. Y. 292; Trustees of Village of Bath v. McBride, 219 N. Y. 92; City of New York v. Fox, 232 N. Y. 167), yet it may be noted that only in the last cited case did it appear that the loss was due to the' dereliction of a subordinate and there the court pointed out that the subordinate was chosen by the official held liable. ■ !

Changing judicial views of public policy are an insecure basis for the extension or limitation of established rules of liability or for the rejection of a common law rule of liability and the formulation of a new rule. The judicial rule of liability, without fault, for the loss of public funds received by an officer, even if unduly harsh, is too well established to be changed by the courts. It is for the Legislature, not the courts, to change or limit the rule if such change seems wise. Even so, this court might hesitate to extend a rule (formulated by this court on grounds of pubhc pohcy) which imposes upon pubhc officers strict habihty for loss of pubhc moneys received, so that such habihty would include also loss caused to the pubhc by failure of a subordinate to collect pubhc moneys.

No such question is, however, presented in this case. The petitioner’s responsibility rests not upon a judicial rule of liability, but upon a rule of liability created by the Legislature. The statute in clear terms makes the petitioner “ responsible for, the general conduct of the business of ids office and for the faithful discharge of the duties of the deputy and assistant clerks and other officers connected with the court.” The statute, again, places upon the petitioner the duty to collect and receive all the fees, and * * * pay the same into the city treasury monthly.” The petitioner through the dereliction of officers connected with the court ” has failed to collect and to pay over all the fees he was required to collect. A shortage exists, and under the statute the Comptroller was required to withhold the salary of the petitioner until he shall have accounted for and paid all the fees that were collected or that should have been collected. The courts may not exempt the petitioner from responsibility imposed by the Legislature. The statutory measure of responsibility is attached to the petitioner’s office and accepted by him when he accepts the office.

That the liability of the petitioner is created and must be measured by the statute and not by the rule formulated by the court in Tillinghast v. Merrill (supra) appears clearly from the opinion in that case, and the explanation by the court of the earlier decisions of Muzzy v. Shattuck (1 Den. 233) and People ex rel. Nash v. Faulkner (107 N. Y. 477). Where, as in this case, there is a statute defining the duties and liabilities of a public officer, no consideration of public policy can properly induce a court to reject the statutory definition.

The orders should be reversed and the application of the petitioner denied, with costs in all courts.

Crane, Ch. J., O’Brien, Hubbs, Loughran and Pinch, JJ., concur; Rippey, J., dissents.

Orders reversed, etc.


text:
    In the Matter of Frederick Small, Respondent, against Paul Moss, as Commissioner of Licenses of the City of New York, Appellant.

      Argued March 8, 1938;
    decided April 12, 1938.

      William C. Chanler, Corporation Counsel (Alan M. Stroock, Paxton Blair and David I. Shivitz of counsel), for appellant.
    The decision of the Appellate Division should be reversed because it erred in holding that Special Term lacked power to deny a peremptory mandamus order. (Matter of Durr v. Paragon Trading Corp., 270 N. Y. 464; People ex rel. Ross v. Dooling, 132 App. Div. 50; People ex rel. Blank v. Supreme Lodge, 126 App. Div. 86; People ex rel. Geraci v. Italian Assn., 123 App. Div. 277; Matter of Friedman v. Delaney, 147 Misc. Rep. 154; 241 App. Div. 711; People ex rel. Coveney v. Kearny, 44 App. Div. 449; 161 N. Y. 648; People ex rel. McDonald v. Clausen, 163 N. Y. 523; People ex rel. Bean v. Clausen, 74 App. Div. 217; Matter of Steinway, 159 N. Y. 250; Matter of Poucher v. Berry, 249 N. Y. 16; People ex rel. Wood v. Assessors, 137 N. Y. 201; United States ex rel. Greathouse v. Dern, 289 U. S. 352; People ex rel. Moses v. Gaynor, 77 Misc. Rep. 576; 160 App. Div. 881; Matter of Ormsby v. Bell, 218 N. Y. 212; Matter of Larkin Co. v. Schwab, 242 N. Y. 330; Message Photo-Play Co. v. Bell, 179 App. Div. 13.) The decision of Special Term denying a peremptory mandamus order should have been affirmed since defendant had jurisdiction to reject the application for a license on the grounds stated in the return, and the Appellate Division did not, and under the circumstances could not, review the discretion of Special Term in refusing mandamus. (Matter of Larkin Co. v. Schwab, 242 N. Y. 330; Matter of Goelet v. Moss, 248 App. Div. 499; 273 N. Y. 503; Matter of Agoglia v. Mulrooney, 259 N. Y. 462; People ex rel. Moses v. Gaynor, 77 Misc. Rep. 576; Matter of Noeth v. Valentine, 247 App. Div. 807; Matter of Ormsby v. Bell, 218 N. Y. 212; Matter of Berry v. Brearton, 263 N. Y. 274; McDougall v. Shoemaker, 236 N. Y. 127; Matter of Smidt v. McKee, 262 N. Y. 373; People ex rel. Peaks v. Voorhis, 243 N. Y. 420; People ex rel. Ellis-Joslyn Pub. Co. v. Common Council, 223 N. Y. 445, Matter of Hart, 159 N. Y. 278; Matter of Haydorn v. Carroll, 184 App. Div. 151; 225 N. Y. 84; Rochester Lantern Co. v. Stiles & Parker Press Co., 135 N. Y. 209; People ex rel. Connolly v. Board of Education, 113 App. Div. 315; Delaney v. Valentine, 11 App. Div. 316; Ingersoll v. Cunningham, 95 App. Div. 571.) Even if the Appellate Division was right in holding that a Special Term was bound to grant a peremptory mandamus order because of the Trial Term’s findings, it should have allowed either a new trial or some other appropriate remedy whereby the findings could be reviewed. (Madison County Trust & Deposit Co. v. Smith, 259 N. Y. 348; Bonnette v. Molloy, 209 N. Y. 168; Aalholm v. People, 211 N. Y. 406.) Even if the Commissioner of Licenses had no jurisdiction to refuse the license, the decision of Special Term denying the peremptory order as matter of discretion was not reversible. (Matter of Durr v. Paragon Trading Corp., 270 N. Y. 464; United States ex rel. Greathouse v. Dern, 289 U. S. 352; People ex rel. Wood v. Assessors, 137 N. Y. 201; Conger v. N. Y., W. S. & B. R. R. Co., 120 N. Y. 29.)

      David Steckler and Israel Hoffman for respondent.
    The findings of the Trial Term established a clear legal right to a site approval and theatre license. It was error, therefore, for the Special Term to deny petitioner’s application for a mandamus order based upon the findings. The Appellate Division properly reversed the order denying petitioner’s application. (People ex rel. Birmingham v. Grout, 45 Misc. Rep. 181; People ex rel. McDonald v. Clausen, 163 N. Y. 523; People ex rel. Coveney v. Kearny, 44 App. Div. 449; 161 N. Y. 648.) The defendant’s denial of a theatre license and approval of the site was arbitrary, capricious and an abuse of discretion, since bis conclusions were without any reasonable basis. (Message Photo-Play Co. v. Bell, 179 App. Div. 13; People ex rel. E. C. T. Club v. State R. Comm., 190 N. Y. 31; People ex rel. Lodes v. Dept. of Health, 189 N. Y. 187; Matter of Goelet v. Moss, 248 App. Div. 499; 273 N. Y. 503; Matter of Phipps Estates v. Moss, 248 App. Div. 872; 273 N. Y. 505.) There were no facts or circumstances upon which the Special Term could predicate the exercise of its discretion to deny the application. (People ex rel. Gas-Light Co. v. Common Council, 78 N. Y. 56; People ex rel. Ellis-Joslyn Pub. Co. v. Common Council, 223 N. Y. 445; Matter of Durr v. Paragon Trading Corp., 270 N. Y. 464; People ex rel. Millard v. Chapin, 104 N. Y. 96; Matter of Smidt v. McKee, 262 N. Y. 373.) Defendant, in the exercise of the licensing power, had no jurisdiction to predicate denial of a license upon the ground of traffic hazards. (Matter of Larkin Co. v. Schwab, 242 N. Y. 330; Matter of Goelet v. Moss, 248 App. Div. 499; 273 N. Y. 503; Matter of Phipps Estates v. Moss, 248 App. Div. 872; 273 N. Y. 505; People ex rel. Sprenger v. Dept. of Health, 226 N. Y. 209; People ex rel. Lodes v. Dept. of Health, 189 N. Y. 187.) The Appellate Division, in reversing the Special Term, properly granted petitioner’s motion and ordered the issuance of a site approval and theatre license. The defendant had opportunities to review the findings of the Trial Term, and has not been prejudiced by the order of the Appellate Division. (Madison Co. Trust & Deposit Co. v. Smith, 259 N. Y. 348; Rochester Lantern Co. v. S. & P. Press Co., 135 N. Y. 209; Macomber v. Sterling, 230 App. Div. 598; McNamara v. Goldan, 194 N. Y. 315; People ex rel. Long Island R. R. Co. v. Wolf, 152 App. Div. 173 Schintzuis v. Lackawanna Steel Co., 224 N. Y. 226.)
   Lehman, J.

The petitioner, desiring to erect and operate a motion picture theatre on premises on the west side of Riverdale avenue, one hundred and twenty-five feet north of West Two Hundred and Thirty-fifth street in the borough of the Bronx, applied to the Commissioner of Licenses for approval of the site and for a license for the operation of a theatre. After a hearing, the application was denied. Then the petitioner, claiming that the action of the Commissioner was arbitrary, moved at Special Term for a peremptory order of mandamus commanding the Commissioner “ to forthwith issue a license and /or approval for the use of premises 3509 Riverdale avenue for motion picture theatre purposes or for an alternative mandamus order directed to him and commanding him to perform such acts and duties or show cause why the said order should not be obeyed.”

■ The alternative order was granted. The Commissioner made a return in which, in addition to certain denials, he alleged as three separate and distinct ” defenses that satisfactory proof had been presented to him establishing that a motion picture theatre on the proposed site would destroy the residential character of the neighborhood and create a real and unnecessary hardship on the residents;' * * * would increase the pedestrian and vehicle traffic' so as to create a condition dangerous to the traveling public; * * * -that the noise, traffic congestion and attendant parking problem resulting from the erection of a theatre at the proposed location would be a serious detriment to the general welfare, public health and safety of the community.” As a “ fourth, separate and distinct defense ” the Commissioner alleged in his return “ that the denial of petitioner’s application for a motion picture theatre site approval was in the public interest and was a just, reasonable, legal and proper exercise of the discretionary powers vested in the respondent.”

Both sides waived a jury trial and the issues of fact were tried at Trial Term before Mr. Justice Steuer without a jury in accordance with section 1333 of the Civil Practice Act. Just as in the trial of issues of fact raised by pleadings in an action, the trial justice was called upon to define the issues raised by denials, in the return, of “ material ” allegations, contained in the petition, or by “ material ” allegations of new matter, contained in the return. (Civ. Prac. Act, §§ 1331,1332, repealed L. 1937, ch. 526.)

The petitioner can succeed only if he establishes a clear legal right to a license. It follows that every allegation which, if proven, would establish or defeat such legal right is material. The Legislature may vest in a licensing officer a measure of discretion in granting or refusing a license. It determines the field of administrative discretion. Into that field the courts may not enter. Refusal to grant a license is arbitrary only when it is not based on a reasonable exercise of the discretion vested in the licensing officer. The limits of reasonable discretion are transgressed where refusal is based upon a ground which under the statute the licensing officer may not consider or upon a ground which is not supported by any evidence. (Matter of Larkin Co. v. Schwab, 242 N. Y. 330.) Arbitrary refusal of a license in such case to a fit and proper applicant is a wrong to him; and “ he has a remedy through mandamus to right the wrong which he has suffered.” (Matter of Picone v. Commissioner of Licenses, 241 N. Y. 157, 160.) Whether or not an applicant has a clear legal right to a license depends, then, upon the question whether a refusal would be arbitrary or capricious, or whether a refusal would be justified by the existence of conditions which, under the provisions of the statute, might furnish reasonable ground for refusal by the licensing officer, in the exercise of a discretion vested in him. That question constitutes the ultimate issue of fact to be determined by the trial judge.

The trial judge, at the close of the trial, made no formal findings of fact but wrote an opinion which concluded with the words: The issues raised by the pleadings are resolved in favor of the petitioner ” and which set forth the grounds for that conclusion. The Civil Practice Act provided that upon the trial of the issue of fact, the verdict, report or decision must be returned to, and the final order thereupon must be made by, the appellate division or the special term, as the case requires”5 (§ 1334, repealed L. 1937, ch. 526.) Accordingly, the opinion of the trial judge, embodying his decision, was returned to Special Term and the petitioner moved at Special Term for a final peremptory order of mandamus. In spite of the fact that the trial judge had stated that the issues raised by the pleadings are resolved in favor of the petitioner,55 the motion for a final order was denied. The petitioner then appealed to the Appellate Division from the order denying his motion.

Upon the application for a final order of mandamus, the findings embodied in a verdict, report or decision made at the trial of issues of fact under an alternative order are binding and conclusive upon the court at Special Term. The final order must be consistent with such findings. (People ex rel. Hanrahan v. Board of Metropolitan Police, 26 N. Y. 316; People ex rel. McDonald v. Clausen, 163 N. Y. 523.) The court at Special-Term determines whether as matter of law the findings, of fact establish a clear legal right of the petitioner and, then, whether in the exercise of sound discretion the court should grant or withhold a final peremptory order of mandamus for the enforcement of that right. Since in this case the opinion stated that the issues of fact were resolved in his favor, the petitioner maintained that the findings left no room for the exercise of discretion, but that as_ matter of law a peremptory order must issue. Because the petitioner in appealing to the Appellate Division relied only upon his exception to the ruling of the justice at Special Term denying the motion for a final order, he availed himself of the right given by section 575 of the Civil Practice Act and made no case 55 upon the appeal.

The Corporation Counsel, representing the Commissioner of Licenses, endeavored, without success, to induce the Appellate Division to direct that a case 55 should be made in order that the appellate court might have before it the record of the trial and might review the decision and findings of the trial judge if it should decide that such findings, while unreversed, dictate the conclusion that a final peremptory order of mandamus should issue. Without such “ case ” the Appellate Division had before it only the order of Special Term and the decision of the trial judge, embodied in his opinion. It could upon this record review the order of Special Term, but not the rulings of the trial judge or his decision. Upon the record before it, the Appellate Division reversed the order of Special Term and remitted the matter to the justice at Trial Term “ for specific findings upon all issues of fact, the matter thereafter to be referred to Special Term for complete determination pursuant to law.” In a per curiam opinion the Appellate Division said: “ In the proper exercise of its discretion the court at Special Term should grant the peremptory mandamus order unless it appears from the findings of the trial court that the public health, safety or morals of the community would thereby be impaired. (Matter of Goelet v. Moss, 248 App. Div. 499; affd., 273 N. Y. 503; Matter of Phipps Estates v. Moss, 248 App. Div. 872; affd., 273 N. Y. 505.)” (252 App. Div. 71.)

In obedience to the directions of the Appellate Division, the trial judge made a formal decision, which, after reciting among other things that both parties had stipulated “ that the making of findings be waived and that the opinion of the court be deemed its decision upon the facts,” set forth fourteen specific findings of fact. The findings which may have a bearing upon the questions to be decided upon this appeal read as follows:

“ Sixth: On or about May 13th, 1936, the respondent denied the petitioner’s application for the issuance of a theatre license for the proposed theatre upon the grounds, (1) that the erection of a theatre at said location would increase pedestrian and vehicular traffic so as to create a condition dangerous to the traveling pubfic; and (2) that the noise, traffic congestion and attendant parking problem arising and resulting from the erection and maintenance of a theatre at the proposed location would be a serious detriment to the general welfare, public health and safety of the community.

“ Seventh: That the premises in question are located upon a wide arterial highway where an unusual situation exists by reason of a ramp adjacent to the southern portion of the property. This ramp, which is located on the highway, leads into a cross-street and is currently used for traffic both ways. The wall of the ramp extends down to Riverdale Avenue toward the subject premises from the south, while Riverdale Avenue proper runs down toward petitioner’s premises from the north. This slope from the north is on a curve in Riverdale Avenue which conceals the presence of the ramp from motorists until they are within some hundred feet of it, and has been responsible for several accidents.

“ Eighth: That the immediate vicinity adjacent to the premises is sparsely settled.

“ Ninth: That a theatre at the subject premises would of necessity bring to its doors patronage from a large surrounding area inaccessible by any means- other than motor vehicle.

Tenth: That a theatre at the subject premises would cause an increase in traffic thereat.

“ Eleventh: That a theatre at the subject premises would cause an increase in the parking of automobiles in the immediate vicinity of said premises.

“ Twelfth: There was no proof before the respondent upon which he could conclude, that the erection and maintenance of a theatre upon said site would increase pedestrian and vehicular traffic to such an extent as to create a condition dangerous to the traveling public.

Thirteenth: There was no proof before the respondent upon which he could conclude, that the erection and maintenance of a theatre upon said site would create noise, traffic congestion or any attendant parking problem sufficient to be a detriment to the general welfare, public health and safety of the community.

Fourteenth: There was no proof before the respondent that the erection and maintenance of a theatre upon said site would impair the public health, safety or morals of the community.”

The decision was then returned to the Special Term and the justice there, again, denied the motion of the petitioner for a final peremptory order of mandamus, stating in his opinion, that in view of findings sixth to ninth," the action of the commissioner of licenses in refusing the petitioner a license was neither arbitrary, capricious, nor unreasonable, but on the contrary was based upon a discretion wisely exercised and completely in harmony with sound principles of public safety, convenience and welfare.” Again the petitioner appealed to the Appellate Division without making a case. That court reversed the order of Special Term and granted the motion for a final order commanding the Commissioner of Licenses forthwith to grant a license. The order contained a provision at its foot that it is “ made without prejudice to the right of respondent to bring up for review if otherwise timely and proper, the findings of Trial Term upon a complete record of the minutes and proceedings had upon the trial of the alternative mandamus order.” It is that order from which the Commissioner of Licenses now appeals.

We have said that “ in considering the power to issue a mandamus order for license, permit or consent, the courts must take into consideration the limits of the discretion which under the statute or ordinance is vested in the administrative body. Refusal to grant a permit must be considered arbitrary where based solely upon grounds which under the statute the administrative body may not consider.” (Matter of Larkin Co. v. Schwab, supra, p. 335.) In this case the Code of Ordinances of the City of New York (Ch. 3, art. 2, § 33) grants to the Commissioner power to “ pass upon the location of the theatre and upon the character of the applicant for the license without delay.” Here is no delegation of legislative power with plenary discretion to determine whether or not to grant or deny to an applicant a favor. The Commissioner’s functions are purely administrative. He must pass ” upon certain matters and grant or refuse a license in accordance with his findings. The considerations which may guide his decision are not enumerated or defined in express terms but are clearly implied when the ordinance is read in the light of its history and purpose. The location ” of the premises and the character ” of the applicant are relevant factors in determining whether the grant of a license might impair the public health, safety or morals of the community. Unless evidence is presented which would justify refusal upon such grounds the applicant is entitled as of right to a license. (People ex rel. Empire City Trotting Club v. State Racing Comm., 190 N. Y. 31; Matter of Ormsby v. Bell, 218 N. Y. 212.)

Whether the administrative discretion vested in the Commissioner is so broad that it would justify a refusal to grant a license when proof is presented that a theatre at the proposed location would dangerously increase traffic and render traffic control difficult, is not a question upon which we can pass on this appeal. The findings of the trial judge numbered twelfth to fourteenth if sustained by the evidence establish that there was no such proof or indeed proof which on any possible ground would justify a refusal of a license. True, the findings numbered sixth to eleventh might suggest that the trial judge may perhaps have erred in finding that there was no such proof; but these earlier findings are only as to evidentiary facts, and the force of such evidentiary facts can be measured only in connection with other evidence not made part of the record which was before the justice at Special Term or the Appellate Division. The findings of evidentiary facts are not necessarily inconsistent with the findings of ultimate facts, and the findings of ultimate fact that there was no proof justifying refusal of a license on any ground which the Commissioner might consider were binding upon the justice at Special Term and they established as matter of law that the refusal of a license was arbitrary.

The question remains whether upon these findings the justice at Special Term could in the exercise of a judicial discretion withhold from the applicant the remedy of mandamus for the wrong suffered by arbitrary refusal of the license. We have said that a mandamus order may issue only for the enforcement of a clear legal right; and even after such right has been established, the court must determine whether, in the exercise of a sound discretion, it should grant or withhold the order. Denial of an application for the order constitutes an abuse of discretion, as matter of law, in those rare cases, only, where the circumstances leave no possible scope for the reasonable exercise of discretion in such manner.” (Matter of Durr v. Paragon Trading Corp., 270 N. Y. 464, 469.) Nevertheless we agree with the Appellate Division that upon the findings this is one of such “ rare cases ”— and, like the justice at Special Term, we may, upon the record before us, base decision only upon these findings. The rule that the courts may not overrule the exercise of the discretion vested in the licensing officer is not to be weakened; but here, as we have said, the findings establish that the Commissioner acted arbitrarily and no substantial ground is suggested by the appellant upon which the discretion of the court could reasonably be invoked to withhold the only remedy open to the respondent for the wrong he has apparently suffered.

We say apparently ” suffered, since we are unable to review the findings of fact of the trial judge. The power of the Appellate Division, upon the record here presented, to reverse the order of Special Term is clear. The power of the Appellate Division to direct a final order is open to serious doubt. The Commissioner of Licenses cannot be deprived of the right, at some stage, to an opportunity to bring up for review the findings of fact made by the trial justice, and exceptions to the rulings at the trial. No final order or judgment may be granted which would deprive a litigant of that right. So we decided in Madison County Trust & Deposit Co. v. Smith (259 N. Y. 348), and the question now presented is whether the final order has that effect.

The only possible ground for distinction between this case and the cited case is that here the Appellate Division granted a final order in a mandamus proceeding, while in the cited case the Appellate Division granted a final judgment in an action. We are told that a person aggrieved by a decision or verdict after a trial of issues of fact under an alternative order of mandamus, must appeal from the decision or verdict or from the order denying a motion to set aside the decision or verdict, if he desires a review of the findings or of the rulings at the trial. We find no basis for the distinction suggested and no authority for the petitioner’s contention. Proceedings after issue is joined under an alternative order are “ the same, in all respects, as in an action” (Civ. Prac. Act, former § 1332), and “ each provision of law relating to an appeal from a judgment, either to the appellate division or to the court of appeals, is applicable ” to the appeal which we are considering. (Civ. Prac. Act, § 1337, repealed L. 1937, ch. 526.) If the petitioner had made a “case” upon his appeal to the Appellate Division, that court could have reviewed the rulings and findings of the trial court. (People ex rel. Boyd v. Hertle, 46 App. Div. 505; People ex rel. Wieland v. Knox, 78 App. Div. 344.) Failure to make a case cannot deprive the adverse party of a right to such review.

Upon the reversal of the order of Special Term the Appellate Division had the choice either to grant a new trial (Madison County Trust & Deposit Co. v. Smith, supra) or to order a reargument upon a complete record. (Cf. Horton v. Pennsylvania Exchange Bank, 219 App. Div. 743; Matter of Jaquino Realty Corp. v. Ormond, 215 App. Div. 712.) The Commissioner of Licenses moved for such a reargument, but his motion was denied.', He has appealed from the order denying' his motion. No such appeal lies as of right from such an order, and we must grant the respondent’s motion to dismiss the appeal from that order. He must, however, be given opportunity in some manner to bring up for review the decision of the justice at Trial Term upon the issues of fact where a final order is made. For that reason the order of the Appellate Division should be reversed, without costs, and the matter remitted to the Appellate Division to enable it to exercise its discretion as to whether it should reverse the order of Special Term and grant a new trial, or should order a reargument upon a complete record.

On appeal No. 1, the order- of the Appellate Division should be reversed and the matter remitted to the Appellate Division to proceed in accordance with this opinion, without costs.

On appeal No. 2, the appeal from the order denying the motion for reargument should be dismissed.

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

Ordered accordingly.

I


text:
    The People of the State of New York, Respondent, v. William Franco, Appellant.
    Argued November 24, 1937;
    decided January 18, 1938.

      Charles F. Meehan for appellant.

      Charles J. Ranney, District Attorney (Charles G. Maloy of counsel), for respondent.
   Judgment of conviction affirmed; no opinion.

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


text:
    Theresa C. Smith et al., Appellants, v. Chester W. Frank, Respondent.
    Argued January 3, 1938;
    decided January 18, 1938.

      William J. Sernoffsky for appellants.

      Leo F. Donnelly for respondent.
   Judgment affirmed, with costs: no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Loughran, Pinch and Rippey, J J. Taking no part: Hubbs, J.


text:
    In the Matter of Irving L. Cohen et al., Respondents, against Board of Education of the City of New York, Appellant.
    Argued January 3, 1938;
    decided January 18, 1938.

      Paul Windels, Corporation Counsel (Edmund L. Palmieri and Paxton Blair of counsel), for appellant.

      A. Spencer Feld for respondents.
   Order affirmed, with costs; no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Lotjghran, Finch and Rippey, JJ. Taking no part: Htjbbs, J.


text:
    In the Matter of the Probate of the Will of Thomas Richards, Deceased. Marion Kintzel et al., Appellants; Carmie A. Richards, Respondent.
    Argued January 3, 1938;
    decided January 18, 1938.

      Frank G. Baichle, Charles A. White and William J. Bullion for appellants.

      John H. Little for respondent.
   Order affirmed, with costs payable out of the estate. No opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Loughran, Finch and Rippey, J J. Taking no part: Hubbs, J.