author:
Lehman, J.
      Crane, J. O’Brien, J.

text:
    The People of the State of New York, Respondent, v. Vincent Mummiani, Appellant.

      (Argued November 30, 1931;
    decided February 9, 1932.)

      Michael F. Pinto, Samuel Backlar and John A. Mullen for appellant.
    The confessions should not have been admitted into evidence. (People v. Trybus, 219 N. Y. 18; People v. Barbato, 254 N. Y. 170; People v. Weiner, 248 N. Y. 118.)

      Thomas C. T. Crain, District Attorney (Robert C. Taylor of counsel), for respondent.
    The question whether a confession is voluntary is one of fact for the jurors to decide. (People v. Barbato, 254 N. Y. 170; People v. Lytton, 257 N. Y. 310.)
   Lehman, J.

On September 9, 1930, Dominick Buoncore was shot in a restaurant in the borough of Manhattan, city of New York. His assailant escaped. Before his death Buoncore made a statement which was admitted in evidence as his dying declaration. The police officers, who wrote out the statement for the dying man to authenticate by his mark, understood him to say that he had been shot by Moriano.” He added, See Patsy Cherry.” It is quite possible that the dying man may have mumbled the name and that he may have said Mummiani ” when he was understood to say Moriano.” At any rate it is Mummiani who has been convicted of the crime.

He was arrested on the evening of February 9th, 1931. He was taken to the police station. He was detained there for thirty-six hours, in defiance of a statute, before he was arraigned in court. By section 165 of the Code of Criminal Procedure the defendant must in all cases be taken before the magistrate without unnecessary delay.” This was a plain wrong for which some one should be punished. Disregard of the duty of arraignment does not avail, however, without more to invalidate an intermediate confession. (People v. Trybus, 219 N. Y. 18; People v. Doran, 246 N. Y. 409.) It is only a circumstance to be weighed with others in determining whether a confession has any testimonial value.

The defendant, during his unlawful detention, was questioned by police officers. He denied guilt. Five police officers were present at his questioning. They testify that he was not beaten but that, at about eleven o’clock in the morning after his arrest, he stated that be would tell the truth if they would give him some food. They gave him the coffee for which he asked. Then, in the presence of a stenographer, he made a detailed confession that he had committed the crime. He repeated that confession with some unimportant variations before an Assistant District Attorney the same afternoon. At the trial he testified that before he made the confession of guilt he was brutally beaten by the police officers and that the confession was made under the influence of fear, produced by threats to continue the beating until he confessed. He says that the words of the confession were put into his mouth by the police officers. It is upon that confession that the conviction of the defendant rests.

No witness gave any testimony which tends, independently of the confession, to show that this defendant is in fact the guilty man whom the decedent intended to identify when he was understood to say that he was shot by Moriano. See Patsy Cherry.” Patsy Cherry was identified at the trial as one Patsy Cerosuolo. He had been sitting with the decedent at the restaurant a short time before the shooting. He was acquainted with both the defendant and the decedent. He was in or just outside the restaurant at the time of the shooting. It was said in the opening address of the prosecuting attorney that he would testify as to the circumstances. Perhaps he could throw some light on the crime. He was, we are told, in court. He was not produced as a witness.

Nevertheless it cannot be said that the conviction of the defendant is against the weight of evidence if the confessions be thrown into the scales against the defendant. The confessions contain within themselves some indications of their truth. A narrative so circumstantial cannot easily be reconciled with the defendant’s present story that it was an utter fabrication. A multitude of extrinsic circumstances not sufficient of themselves to establish the defendant’s guilt bring the confessions into accord with probability. The real question in this case is whether the confessions were obtained by means forbidden by the law which so pulverize their testimonial value that coherences internal or extrinsic would thereafter count for nothing.

A confession by a defendant can be given in evidence against him unless made under the influence of fear produced by threats or unless made upon a stipulation of the district attorney that he shall not be prosecuted therefor. (Code Crim. Pro. § 395; cf. 2 Wigmore on Evidence, §§ 823, 831, and cases there cited.) Other forms of pressure, not amounting to a threat, may be considered by the jurors in determining whether the confession is true or false. They do not impose a duty on the jurors to throw the confession out if they find it to be true. Whatever the rule may be in other jurisdictions (Bram v. United States, 168 U. S. 532), our law does not require that a confession to be admissible shall be a spontaneous utterance made by a defendant to relieve his conscience. Only where the confession is made under the influence of fear produced by threats is it inadmissible. Then it loses all testimonial value, for so the statute has ordained.

Our study of the record leaves us with a grave fear that the confessions were obtained in violation of the statute, by brutality and threats. True, if the testimony of the prosecution might reasonably be accepted by the appointed triers of the fact, we may not because of our fears substitute our judgment for theirs. We do not say that the jury could not, upon this record, reasonably credit the denial by the police that they had not beaten the defendant to obtain his confession rather than the assertion of the defendant that he was beaten. Nevertheless, the question remains whether there has been a fair trial of this issue at which the prosecution has presented testimony which would enable the triers of the fact to determine that issue fairly and truly.

. Since that is the ultimate question presented upon this appeal, there is no need to analyze the testimony pro and con to determine its weight. Enough to point out that there is a basis for our grave fears and that the issue has not been presented to the jury in a manner which might allay those fears. Where a defendant has given a detailed confession, he knows that he can escape its effect only by testimony, true or false, that it was extorted from him through fear induced by threats. Only a false sentimentality would lead to giving greater weight to his highly interested assertion than to the denial of the police officers who have no interest except to see that crime is prevented or the wrongdoer punished. On the other hand, no false sentimentality towards the police, however brave and zealous they may be, should lead us to condone disregard of the law by its sworn protectors or to give testimonial value to a confession which under the law has no such worth.

Here though the assertion of the defendant that he was beaten is met by denial of the police officers who are accused of the brutality and threats, they do not deny that they held the defendant unlawfully without arraignment for thirty-six hours until they had obtained his confession. They admit that while they unlawfully held the defendant in the police station, one of them gave the defendant a clean shirt in place of one which the defendant claims was made bloody by alleged beating and a blow on the nose. They admit that if this gift was made in a spirit of charity, the same spirit did not induce them to furnish the defendant with any food until he promised to give a statement, if you get me some food.” They content themselves with a bare denial of violence, giving no details or explanation of why they held him unlawfully or what occurred before he gave the confession or what induced a change by the defendant from stout assertion of innocence to confessions of guilt, nor do they explain why the presence of five police officers was required to induce a “ voluntary ” confession.

The growing number of instances in which officers of the police force stand accused at our bar of threats and brutality in the extortion of confessions is a cause of deep concern to all the judges of the court. We feel it a solemn duty, irrespective of the outcome of this cause, to remind the officers of the law that the suspicion now attaching to them has been fostered by their own conduct, at times by abuse of power, not amounting in itself to violence or coercion, but furnishing the soil out of which violence and coercion spring, at times by sheer indifference, a cynical refusal to inquire where relentless pressure of the probe would be likely to reveal too much.

The police are guilty of oppression and neglect of duty when they willfully detain a prisoner without arraigning him before a magistrate within a reasonable time. (Code Crim. Pro. § 165.) The conclusion is inescapable that they do this for the purpose of subjecting him to an inquisition impossible thereafter. Until arraignment before a magistrate, he is held incommunicado, without the protection that comes from the advice of counsel or the encouragement derived from the presence of family or friends. After arraignment, he has these and other helps to fortitude. In a vast majority of the cases that have come before this court with a defense that a confession was illegally extorted, perhaps, indeed, in all, the wrong, if there was any, was done before the prisoner was brought to court, and would probably have been prevented if he had been brought there without delay. (Cf. Lawlessness in Law Enforcement, vol. IV of the Reports of the National Commission on Law Observance and Enforcement, June, 1931.)

The willful violation by the police of the statute which calls for prompt arraignment is a crime. (Penal Law, § 1841.) An officer who holds a prisoner in custody instead of taking him to the nearest magistrate without unreasonable delay should be disciplined by his superiors, and prosecuted by the District Attorney like any other malefactor. A District Attorney who willfully neglects to initiate such a prosecution after knowledge of the offense may be guilty of a crime himself.

Indifference has been an effective ally of intimidation and oppression. Prisoners who have confessed to the police are commonly brought before the District Attorney, or an assistant, to whom the confession is renewed. Very often the examiner makes no inquiry whatever as to the use of threats or violence. At other times there is a perfunctory question followed by a perfunctory denial. A prosecuting officer, inspired by a genuine desire to put an end to these abuses, will press inquiry further. He will see to it, in every case of a police confession, that the prisoner is questioned, searchingly and earnestly, as to everything said and done by the police from the moment of the arrest. He will give assurance to any prisoner who charges the inquisitors with brutality or coercion that the full power of the prosecuting officer will be exerted to protect the accuser from retaliation and a repetition of the wrong.

We are told that here the defendant’s story is improbable because he did not complain to prison physician, District Attorney or magistrate that he had been beaten. That is a circumstance to be considered by the jury, but it is certainly not conclusive. The prison physician testified that though no such complaint was made, his records show that the defendant did ask for zinc salve which is commonly used for any abrasion or contusion.” Then, too, it is not without significance that the prison physician also testified that the defendant is of an emotional type that gives in to pain and suffering and might talk or do things in order to avoid physical pain. Moreover, according to the defendant’s testimony, even when he was on the way to the District Attorney’s office the police officers continued their threats.

We refrain from pointing out possible answer to other contentions that the defendant’s story is improbable. To do so might lead to the implication that we believe that in this case the jury could not reasonably refuse credence to the defendant’s story; though, as we have said, upon this record the jury might reasonably credit the denial of the police that they made use of the opportunity afforded by the defendant’s unlawful detention, to compel an incriminating statement by threats and violence.

In People v. Weiner (248 N. Y. 118) and People v. Barbato (254 N. Y. 170) the evidence of beating was so conclusive that we were constrained to hold that the only reasonable inference was that the police officers’ denial of a beating was untrue. Here the evidence is not so conclusive, yet it does leave inescapable doubts as to whether the confession has not been extorted by fear induced by threats. These doubts are not the result solely of the assertion of the accused but rather of the admitted illegal detention of the accused without arraignment and without food, till by some means, lawful or otherwise, the confession was obtained; it is the result of failure even to offer any testimony of what transpired when five officers were trying to obtain a confession, except the bare denial that there had been any beating; it is the result of the vague and in some respects contradictory testimony offered by the People in regard to the unusual circumstance that a police officer charitably furnished the defendant with a clean shirt of his own though no police officer offered him even a cup of coffee till he had promised to make a statement.

We are confronted with the problem of whether the courts must accept helplessly the bare denial of police officers of the accusation of brutality extorting a confession of crime of which the accused may or may not be guilty without even requiring a full explanation of their conduct — though their conduct itself creates grave doubts which mere denial of violence does not allay. To admit impotency under such circumstances is to admit that police officers, prosecuting attorney and courts are hopelessly enmeshed in a vicious system commonly called the lawless enforcement of the law. The jury must fairly pass upon the evidence presented to it — however incomplete and unsatisfactory that evidence may be. The prosecuting attorneys rest under the duty to present the evidence in manner that will adequately disclose the truth; the courts .rest under the duty to compel the production of such evidence when available. Otherwise there can be no adequate protection of the rights of the individual and of the State. We do not say that when the police officers here have given fuller testimony of what transpired in the police station before the confession was made and why the defendant was unlawfully detained that all doubts will be removed. That we cannot know in advance. We do not say that even if grave doubts still remain, the jury will be compelled to reject the confessions. We do not even say that upon this record, if we were triers of the fact, we should hold that the police officers were guilty of the wrong which they deny. We do say that this accused is entitled to a trial at which the jury will not be put in the dilemma of either accepting the bare denial of violence by the police officers or of branding them as false witnesses and allowing a possibly guilty murderer to escape the penalty of his crime. There can be a fair trial of a criminal charge only where there is no evasion of the issue.

There is a well-justified and general dissatisfaction that punishment for crime is too uncertain to act as an effective deterrent to crime. The courts have the responsibility of so guiding the conduct of a trial that so far as possible its outcome will be the inevitable conviction of the guilty or the acquittal of the innocent. Error at the trial is at times inevitable — that may be disregarded if it does not affect the result. Doubt must at times remain, for conviction rests upon probability, not absolute certainty. None the less error becomes less frequent and doubt less disquieting if the courts insist that trials must be so conducted that guilt or innocence is proven by competent evidence and that all evidence which may enable the jury to discern the truth is laid before it. The interests of society are badly served when a wrongdoer is allowed to escape punishment because of technicality or outworn formula of the law or doctrinaire principle out of harmony with reality; but the interests of society include the protection of the right of an accused to immunity from violence and to a fair trial where the truth is properly shown. When the judgment is of death, this court has the power and the duty to order a new trial not only if it be satisfied that the verdict was against the weight of evidence or against law,” but also if it be satisfied that justice requires a new trial.” (Code Grim. Pro., § 528.) Doubt whether this defendant has been properly convicted dictates that, in his interest and in the interest of society alike, there shall be a new trial where there can be a more adequate search for the truth.

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

Crane, J.

The defendant, Vincent Mummiani, has been convicted of murder in the first degree for the killing of Dominick Buoncore, on the 9th day of September, 1930, in a cafe at 2287 First avenue, Manhattan, in the city of New York.. The appeal is directly to this court, where, by the mandate of the Constitution (Art. VI, § 7), we must review the facts as well as the law, to see if there be any reasonable doubt of the defendant’s guilt.

The defendant was arrested in Brooklyn, February 9, five months after the shooting, and was taken to police headquarters, where the next day he made a written confession, first, to the police officers, and later in the day, to the District Attorney. The finding of Buon core’s body, pierced with bullet holes, is sufficient corroboration of the confessions to meet the requirements of section 395 of the Code of Criminal Procedure, as matter of law. Whether, however, all the evidence, taken together, removes all reasonable doubt of the defendant’s guilt, remains to be considered. Outside of the confession, there is little or no evidence to prove that the defendant committed the murder.

The confessions in themselves have all the indications and appearance of being truthful. The defendant says, however, that they were procured from him through fear produced by threats, and force used by the policemen; that the whole story is of their manufacture; that the details were framed by them. This I do not believe for the following reasons: The defendant does not deny giving the answers as contained in the confessions. His lengthy answers could not have been mere repetition of a story prepared by the police, which he had committed to memory. The following may be taken from his statement as illustrations sustaining this conclusion:

“ Q. Just tell us everything he did which caused you to shoot him? A. He laid the girl (Marie). When I saw Marie on Sunday, September 7th, she told me that Dominick Buoncore wanted to take her out and he made a date with her, and then she told me that he had her up in a room on 118th St. between 1st and 2nd Aves., I think it is 312 East 118th St., and that he laid her. She said Dominick took her there on Saturday, the day before.

Q. What else did she tell you? A. She said I was no good to her and that I cannot go out with her, that she wanted someone else to take care of her; she said I was not fit enough to hold a girl and for that reason she left me on September 7th, 1930.

“ Q. What happened after September 7th, 1930? A. I just was sore because he laid the girl and I gave him the works.

Q. When did you next see Dominick Buoncore after you saw the girl that Sunday? A. I didn’t see him on that Monday; I was going to give him the works that Monday but I could not find him. They told me in the cafe that he went to a funeral.

Q. What did you do after that? A. I hid the gun on a window in the rear of a tenement house on 117th Street between 1st and 2nd Aves, next to Borden’s stable. As you go up one flight of stairs the window leads to the alley downstairs and I left the gun on a window sill a little after 2 p. m. on that Monday; the house I went into was the first one east of Borden’s on the north side of 117th Street between 1st and 2nd Aves.

Q. When did you first go baek to the house in 117th St. and get the gun in the morning? A. About 10 A. m., only when I went into the cafe on September 9, 1930; I walked up and down there by the school and then went back to the cafe; I was there about 2:30 p. m. and saw him there; he was sitting down on a chair at a table. As you enter the place, he (Dominick) was sitting at a table at the right, sitting on the westerly side of the table, facing east.

“ Q. What did you do as you walked in and saw him sitting at the table? A. I just saw him there and gave it to him.

“ Q. How many steps did you take inside the door? A, I could have seen him from outside; I stood right at the edge of the door and turned around to the right and took out my gun from between my pants and my outside shirt, right side, I turned around with my gun in my hand and discharged the revolver at him.

Q. What happened after you fired the first shot at him? A. I just pulled the trigger of the gun three times and then I went away. After the first shot I saw his body lean forward on the table and I fired two more shots, and then I ran away, going downtown.

“ Q. Did you say anything to Dominick at all as soon as you entered the cafe? A. No, because I saw him from the outside; I said nothing to him because I took no chance with him as I heard he was a big guy there and takes nothing from anyone, so I would take no chance with him.

After I discharged my automatic pistol at him three times, I ran south on 1st Avenue to 116 th St. on the west side of the avenue and then went west to Lenox Avenue, turned around on my right and went to 120th St. and Lenox Ave., walking on the east side of Lenox Avenue to 120th St. I went there just to give the gun to some one; I just looked in the barber shop there on 120th St. between Lenox Ave. and Nathan Davis St. I wanted to give it to anyone there, Jerry or Frank, but I didn’t see anyone in there.

“ Q. What did you do then? A. Then I threw the gun in an ash can; I wrapped it up in newspaper and threw it in the ash can there, the ash can was down three steps inside a little alley there right next to the barber shop, the house east of the barber shop. Then I went walking around through Central Park and moped there all night; I slept in the subway station at 116th St. and Lenox Ave., then riding up and down in the subways.

“ Q. From the time you shot Dominick Buoncore until last night, you just moped around, is that right? A. Yes; I got acquainted with a fellow named Nick Larose in a candy store at 112 Skillman St., I’d stay there and take care of the place in the night time and clean up for him and he’d give me fifty cents. Sometimes I went to the baths down on Manhattan Ave., I think it was the Royal Baths.

Q. How did you know this man Harrington? A. The time I got picked up for counterfeiting I met Mm at the lineup there and he told me all about it, that he was going up for 7y% to 15 years and he said I should take the rod at his house and save it for Mm.

Q. Where was the rod? A. His mother had it. I met the mother in the street and she gave it to me. I don’t know her name, I just know her from going up to the house. I met her at 118th Street and 3rd Ave., northwest corner, the entrace is on 118th St. I met her at 118th St. & 3rd Ave. and told her about seeing her son and to give me the gun and she told me to wait; she came back and gave me the gun. I never knew her name because the son took me up there and I would not know it if I heard t.”

The defendant admitted when he was on the stand that all these answers were made by him. They are the words used by Mm; he does not claim that any officer made or even attempted to make any of the answers. He does say, however, when a witness m his own behalf upon the trial, that the whole story as given by Mm was false, was the invention of the police, and that he simply repeated what previously had been told him and rehearsed by them. TMs is incredible. It may be that the police at times have used violence to procure a confession, but I cannot believe that the police officers of our city, including in this mstance officers of Mgh rank, have deliberately framed a story and compelled a man they knew to be innocent to confess it as the truth. The jury was justified in discrediting the defendant upon his own statements in court, where it had a chance to hear and see him. He was contradicted by bis own friend, the owner of the cafe, Joseph Pánico. The defendant swore upon the stand that he was not in the cafe on September 8, the day before the shooting. Pánico, the owner, swears that he was.

Again, the defendant swears that he was beaten so badly by the police, before he confessed, that his shirt was all bloody, and in this condition he appeared a few hours afterwards before P. Francis Marro, the Assistant District Attorney, who took his second statement. This second confession is in substance the same as the first. Marro arid his stenographer testified that the defendant did not show any symptoms of having been beaten by any one. The police officers also testified that no violence was used upon him.

Under these circumstances and conditions I cannot bring my mind to believe that the defendant’s confessions are false or that they were obtained through fear produced by threats. If this was all we had in this case I should vote to affirm the conviction. It is not all. There are some other things appearing which cause me to hesitate. How near we get to the actual truth from human testimony, none of us will ever know, unless we are the actual participants in the event. Nothing is so uncertain as certainty. The best we can do in arriving at conclusions, in law cases, is to take the evidence presented and give it such weight as it is worth. When we begin to speculate we are lost. And yet the mind will have its doubts, which spring frequently from little things. My curiosity has been aroused, and, being required to review the facts, I am justified in asking a few questions. Better ask them now than after Mummiani has been put to death. The answer may then come too late. Although I can find no fault with the jury convicting this defendant, I, myself, am unwilling to vote to send him to his death until I know more about Cherry, whom the District Attorney introduced to the jury, and then for some unaccountable reason, failed to call.

Patsy Cherry, whose real name is Patsy Cerosuolo, for two weeks had been a frequenter of the coffee house, and was well known to the proprietor Pánico. On the day before the shooting, September the 8th, Cherry and Dominick Buoncore had attended the funeral of one called Murphy, whose real name was James Maraño. On the day of the shooting, Patsy Cherry, a man named Louis Scalzi and Dominick Buoncore were seated together at a table in Panico’s coffee house, just before Buoncore met his death. Scalzi was called out, and Cherry left, apparently to talk to his wife, Fanny, who was outside. The next instant Buoncore was shot as he was seated at the table. The defendant, on the stand, as a witness for himself (not in the confessions), says that he had been in the cafe with Cherry taking coffee at Cherry’s invitation, and that as Cherry was called out, he followed him and waited on the street to talk with him further after he, Cherry, had finished talking with his wife. The defendant denies doing the shooting and says that when he heard the shots he ran away. All admit, therefore, that Cherry was in the coffee house, and at the place at the time of the shooting.

Buoncore did not die at once, but was alive at the time the police officers arrived. He was asked who shot him. If anybody knew, surely Buoncore knew who shot him. He answered, mumbling, Moriano, Moriano, see Patsy Cherry.” He signed a paper with his mark for Officer Winter, saying, “ Moriano shot me.” And Officer Minervini wrote it in his police notebook, the entry being: Received wounds by a man known as Moriano and Patsy Cherry had altercation with them in cafe at above premises was shot by 32 cal. automatic.”

The defendant is not Moriano, and was never known by that name. = It was suggested, and probably is true, that the deceased pronounced the name “ Mummiani ” as though it were “ Moriano.” Nevertheless, two officers heard the name and recorded it “ Moriano.” Cherry was there and knew something. Buoncore said just as he was about to die, “ See Patsy Cherry.” The officers and the District Attorney saw Patsy Cherry; he was in the courtroom during the trial. The District Attorney, in opening to the jury, addressed them as follows: “At about a little after 2:30 or between 2:30 and 2:45 Patsy (Cherry) received a call to go outside. Patsy had a girl who was calling for him. He will tell you that himself. And he left Buoncore seated at the table and he went outside and turned around to the left and went into the hallway where his girl was standing, and had some conversation. As he went out he saw this defendant standing at the railing, and just as he got into the hallway and was talking to this girl he heard four shots fired. He and the girl dashed out and saw a number of men running away, amongst them this defendant.”

The District Attorney failed to call Cherry or his wife, Fanny, and in no way accounted for not doing so. In his summation the District Attorney said: “ Before I drop Pánico, let me say why didn’t I put Mr. Cherry on the stand, or why didn’t we produce Mr. Cherry? ” He did not say.

Why this mystery about Cherry? He was there and knows something. Why is it kept from us, leaving us in doubt as to what it is? The defendant said he was drinking coffee with Cherry. Pánico and the District Attorney say Cherry was with Buoncore. The latter, when asked who shot him, said, “ See Cherry.” Cherry has been seen by the prosecuting authorities, he was available, he was in court, and no explanation has been made for not calling him. What did he see? I, for one, would like to know.

If Cherry was friendly to the defendant and trying to shield him, why did not the defendant call him? If he was hostile to the People, his hostility could be proved as a fact. (2 Wigmore on Evidence, § 948.) If there was sufficient evidence to. justify the belief that he was aiding and assisting Mummiani, he should have been indicted; if there was no such evidence, the District Attorney could have called him as a witness for whatever his testimony was worth. Cherry must know something. The District Attorney must know what it is; perhaps the defendant’s counsel knows; we do not. It may be nothing at all. Perhaps Cherry has stated that he knows nothing about the affair and saw nothing. How can we tell, as reviewers of the fact, what Cherry’s position is? I, for myself, do not intend to guess about the matter. My vote shall be to send this case back in order that this uncertainty may be cleared up. Life, when voluntarily given, is sometimes held very cheap; when taken, however, by the arm of the law, it should be held very dear. On the confession of Mummiani I believe him guilty. The mystery surrounding Cherry makes me hesitate. As this mystery can be cleared up upon a new trial, I vote for a reversal and a new trial.

O’Brien, J.

No member of this court expresses a reasonable doubt of defendant’s guilt. An extraordinarily remote possibility of his innocence, such as may be present in practically every case, or a vague suspicion that his confession may have resulted from threats and violence ought not to impel a court of review to overthrow a verdict founded on such convincing evidence.

The fact that a confession is made at a time when a prisoner is illegally detained in custody, contrary to the provisions of section 165 of the Code of Criminal Procedure which require that a defendant must in all cases be taken before a magistrate without unnecessary delay, does not render it inadmissible. (Balbo v. People, 80 N. Y. 484, 499.) Nevertheless holding a defendant in iurance, prior to formal complaint to a magistrate, is without legal sanction and is condemned. Evidence of confessions under such circumstances, if not obtained in conflict with section 395 of the Code of Criminal Procedure, cannot, however, be properly excluded. (People v. Trybus, 219 N. Y. 18, 22.) This principle is similar to the one embraced within the rule that a court, when engaged in the trial of a criminal case, will not take notice of the manner in which witnesses have obtained possession of papers, burglars’ tools and intercepted telephone messages which are material and- are properly offered in evidence. (People v. Adams, 176 N. Y. 351; affd., 192 U. S. 585; People v. Defore, 242 N. Y. 13; Olmstead v. United States, 277 U. S. 438.)

After a murderer has confessed to the commission of a crime of which he is guilty, what conceivable chance of escape remains to him except a charge against the police that they have used threats and force to extort his confession? In People v. Doran (246 N. Y. 409, 429) Judge Andrews refers to such a charge as a “ Standardized defense.” Whenever we have reached the conclusion that a verdict on this issue is against the weight of evidence, even though we may be convinced of a defendant’s guilt, we have not hesitated to reverse the judgment of conviction. ' Recent instances can be found in People v. Weiner (248 N. Y. 118) and People v. Barbato (254 N. Y. 170).

I agree with Judge Lehman that upon this record the jury might reasonably credit the denial by the police of the use of threats and violence. I go further and agree with Judge Crane that the verdict on this issue is fully supported by the evidence. Proceeding even further, a mere reading of defendant’s story of his pretended beating impresses me with the belief that it is absolutely untrue. Absence of blood on defendant’s coat, his vest and his underclothes goes far to prove the truth of the testimony by police witnesses. Defendant never complained to the prison physician, the District Attorney or the magistrate that he had been beaten. He did ask the doctor for zinc oxide ointment and the doctor gave him some zinc salve which is sometimes used in treatment for acne. He was afflicted with that ailment. A complaint of brutality within a few days subsequent to his arrest could readily have been demonstrated or disproved. Opportunities were abundant. That he refrained from availing himself of the natural inclination to announce a wrong, if one existed, is most significant and his omission, considered with the other evidence, may be assumed to have properly convinced the jury. After he confessed to the police, his admissions were renewed to the District Attorney. No effort is made to show that his later avowals of guilt were induced by threats or force. He reserved for the jury the defense that his admissions to the police had been extorted. To my mind the presence of police officers during defendant’s confession is no more a suspicious circumstance than in People v. DeVore (258 N. Y. 568). In that case three boys nineteen and twenty years of age confessed while in the custody of the police prior to arraignment. Each stated that he was not beaten or threatened but on the contrary was courteously treated. Nevertheless four detectives were present during their examinations by the District Attorney. Adequate police administration may and probably does require that the arresting officers and other detectives shall be kept immediately informed of the progress of each phase of the case to which they áre detailed. The jury in this case did not believe that such officials always lie or that they are incapable, in a spirit of charity, of supplying a dishevelled prisoner with a clean garment to replace one in a ragged and filthy condition. This jury was willing to admit that even a policeman is not bereft of elementary humane feelings. I think that it was justified in accepting the testimony of these officers rather than the belated statements of a murderer.

The dying declaration of the deceased was" before the jury and they could accept it for what it was worth. It is certain that his auditors were unable to distinguish his words as he articulated them. They agree that he was “ mumbling.” The first officer to arrive after the shooting thought that the expiring victim told him that he had been wounded by Moriano ” and Patsy Cherry. The same witness also testified that after a second policeman appeared on the scene, decedent still mumbling ” said that he was shot by Moriano, see Patsy Cherry.” If we conclude, as I think we must, that defendant’s confession was not the result of threats, then the name Moriano must be viewed as of no importance. Either the dying man was unable to pronounce the name Mummiani, or his hearers were unable to distinguish it. The jury was capable of appraising the value of the witness’ evidence when he testified that on one occasion he thought that Buoncore told him that Patsy Cherry assisted in the shooting and that on another occasion he thought that the victim said “ see Patsy Cherry.” Patsy Cherry was in the courtroom during the trial. Defendant had the same opportunity as the District Attorney to call him as a witness. Why should suspicions be aroused by the failure of only one party to call him? The truth is, that, if defendant’s confession was not involuntary, Buoncore’s incoherent declaration and Patsy Cherry’s omission to take the stand at the behest of either party are entirely without significance. Probably no case comes to this court which can be said with a feeling of perfect certainty to be utterly devoid of all conceivable doubt or to have been tried without an infinitesimal flaw of legal error. Seldom, it seems to me, is the correctness of any judgment more nearly grounded on certitude.

I vote to affirm.

Lehman, J., in opinion, votes for reversal and a new trial; Cardozo, Ch. J., and Pound, J., concur; Crane, J., in separate opinion, also votes for reversal and a new trial; O’Brien, J., in opinion, votes for affirmance, with whom Kellogg and Hubbs, JJ., concur.

Judgment of conviction reversed, etc.


source: Caselaw Access Project

author: Lehman, J.

license: Public Domain

text:
    Theodore Dudar, Respondent, v. Milef Realty Corporation et al., Appellants. Milef Realty Corporation, Appellant, v. J. Harry McNally, Inc., Respondent, Impleaded with Another.

      (Argued January 7, 1932;
    decided February 9, 1932.)

      Stephen Callaghan, Chester E. Barrett and Alfred W. Andrews for Milef Realty Corporation, appellant.
    The superintendent had no authority to bind the defendant-appellant by any directions that he might give as to the operation of the hod hoist. (Crowley v. Murray & Hill Co., 154 App. Div. 478.) The defendant-appellant should have judgment herein against the defendant contractor for the amount of any judgment recovered against it by plaintiff, for the reason that the negligence of the defendant contractor was the active and primary cause of the accident. (Wanamaker Co. v. Otis Elevator Co., 228 N. Y. 192; Dunn v. Uvalde Asphalt Paving Co., 175 N. Y. 214; Scott v. Curtis, 195 N. Y. 424; Knippenberg v. Lord & Taylor, 193 App. Div. 753; Williams v. New York & Queens Co. Elec. Lt. & Power Co., 170 App. Div. 920; 222 N. Y. 663; City of New York v. Corn, 133 App. Div. 1; Mayor of New York v. Brady, 81 Hun, 440; 151 N. Y. 611; Phœnix Bridge Co. v. Creem, 102 App. Div. 354; 185 N. Y. 580; Nashua Iron & Steel Co. v. Worcester & Nashau R. R. Co., 62 N. H. 159; Hudson Valley Ry. Co. v. Mechanicville E. L. & G. Co., 180 App. Div. 86; Fulton Gas & Electric Co. v. Hudson River Tel. Co., 130 App. Div. 347; 200 N. Y. 287; New York Consolidated R. R. Co. v. Massachusetts B. & Ins. Co., 193 App. Div. 438; 233 N. Y. 547.) Defendant contractor is liable to defendant-appellant for any recovery by the plaintiff herein, under the terms of the agreement between the said defendants. (Long Island R. R. Co. v. American Bridge Co., 175 App. Div. 170; 225 N. Y. 692; Post & McCord v. New York Municipal R. R. Corp., 187 App. Div. 167; 230 N. Y. 540; Westinghouse, Church, Kerr Co. v. Long Island R. R. Co., 160 App. Div. 200; 216 N. Y. 697.)

      Benjamin C. Loder for J. Harry McNally, Inc., appellant.

      Victor Deutsch for plaintiff-respondent.

      Benjamin Machinist and Benjamin C. Loder for J. Harry McNally, Inc., respondent.
    On the evidence and the pleadings the defendant owner is not entitled to indemnity from the defendant contractor on the theory of the primary liability of the latter. (Keeler Bldg. Co. v. Titchener & Co., 190 App. Div. 135; Union Stock Yards v. Chicago R. R. Co., 196 U. S. 217; Oceanic Steam Navigation Co. v. Compania Trans. Espanola, 134 N. Y. 461; Grey v. Boston Gas Light Co., 114 Mass. 149.) The agreement between the defendants does not contemplate indemnity for defendant owner’s negligence. (Manhattan Ry. Co. v. Cornell, 54 Hun, 292; 130 N. Y. 637.)
   Lehman, J.

The defendant Milef Realty Corporation constructed a building on land which it owned. It made separate contracts for the various parts of the work involved, and kept a superintendent upon the job to supervise the whole work. The plaintiff was employed by the contractor who erected the fireproof arches. He was injured in the course of his work while temporarily within a shaft used for a “ hod hoist ” operated by the defendant J. Harry McNally, Inc., the contractor who was constructing the brick walls in the building.

The operation of the hod hoist while the plaintiff was worldng in the shaft would almost inevitably cause serious injury or death. The contractor for the brick work who operated the hod hoist was under a duty to stop its operation only if it had notice that the employees of another contractor might be working within the shaft. The owner and general contractor was .under a duty to prevent such operation only if it had similar notice and had assumed some measure of direction of the work. The plaintiff was guilty of contributory negligence as a matter of law unless he had reasonable assurance that the hod hoist would not be operated at that point while he was in the shaft.

There is evidence, which upon this appeal we must assume to be true, establishing against each defendant these elements in the plaintiff’s cause of action. The accident occurred on a Saturday morning, and the foreman in charge of the plaintiff’s work testified that on the previous Wednesday evening, he had been directed by the superintendent of the owner to do this work and that the superintendent had said that the hoist would not go higher than the eighth floor. I am going to see the engineer about it.” The superintendent of the owner and general contractor was called upon to give directions during progress of the construction to the extent of preventing conflicts between the work of various subcontractors. Some duty rested upon him to see that such directions would not create a danger to the laborers engaged in the work. We do not now attempt to define the limits of that duty. When the superintendent undertook to direct work which might be dangerous if the hod hoist operated above the eighth floor and gave assurance that he would give appropriate directions to the engineer, in charge of the hoist, not to operate the hoist beyond that floor, failure to act in accordance with that assurance or bo take any steps to protect the laborers, who relied upon his assurance, certainly would constitute a breach of duty, and his employer would be Hable for consequent damages.

The foreman who directed plaintiff’s work further testified that on the morning after he talked to the superintendent of the general contractor the engineer, in charge of the hod hoist, told him that the superintendent “ came last evening to my office and told me that I should not run the hoist.” His testimony, if true, leads fairly to the inference that the engineer had notice that the men working on the fireproof arches might be within the zone of danger created by the operation of a hoist within the shaft, and that such operation must be conducted with due care for their safety. That notice was not expressly limited in time, and since the work on the fireproof arches would ordinarily take several days to finish, the jury might find that the engineer had notice that during such time laborers might be working on fireproof arches in dangerous proximity to the hod hoist. Denial by the superintendent of the general contractor and the engineer that they ever had such conversations or that they had any notice that the employees of the contractor erecting or repairing the arches would work in the shaft, raises an issue of fact, but the verdict of the jury has resolved that question against both defendants.

The trial judge at the close of the case correctly denied the motion of each defendant to dismiss the complaint. The plaintiff’s testimony that before he took his place in the hod hoist shaft he received assurance that the hoist would not be operated above the eighth floor made his contributory negligence a question of fact. Either defendant who failed to take reasonable precautions to stop such operation or to obviate the dangers that might be apprehended from its operation could fairly be charged with negligence. The jury might believe the testimony of the plaintiff’s foreman that after his conversation with the defendant Milef’s superintendent, the defendant McNally’s engineer admitted to him that the superintendent had warned him not to operate the hoist. Then it could find a verdict against the defendant J. Harry McNally, Inc., for the damages caused by the negligence of its engineer. It might reject that testimony, yet believe the foreman’s testimony of his conversation with the general contractor’s superintendent and that the superintendent conveyed no notice or warning to the engineer of the hoist. Then it could find a verdict against the general contractor.

It is said that, even so, a finding that the engineer received such notice must exonerate the superintendent from failure to give it, and that no other negligence can be charged against the general contractor. Perhaps that may be true, yet upon the motion to dismiss, no such question could be presented, for then there was no such finding against the contractor operating the hoist, and the judge was required to pass separately on the separate motions to dismiss of the two defendants. Nor is such question raised by any exception to the charge.

True, the defendant Milef Realty Corporation may, perhaps, even without an exception to the charge, claim the benefit of the finding of the jury that notice was conveyed by its superintendent to the engineer of the hoist. Then, if the jury had been instructed that the Milef Realty Corporation could be charged with no other negligence, that finding would in effect exonerate the defendant from all legal responsibility for the accident. (Pangburn v. Buick Motor Co., 211 N. Y. 228.) Here the judge, without exception and with the apparent acquiescence of the defendant, charged otherwise. Repeatedly and in different terms he charged the jury that it might find from all the evidence that it was the owner’s duty under the circumstances to see to it that the place where the work was to be done, namely, the shaft, was made reasonably safe for Dudar and his coworkers, * * * and not until he shows that it has been properly performed can he claim exemption from liability for injuries occasioned through his nonperformance.” Liability might, he said, be imposed on either defendant, or if the jury found that the negligence of both contributed to the accident, the verdict might be against both. He charged that even if the jury believed that the superintendent of the Milef Realty Corporation told the engineer of the hod hoist machine not to run this hod hoist above the eighth floor, it is for you to say whether or not that was all that the owner was called upon to do under all the circumstances of the case.” The correctness of these instructions cannot be reviewed by this court, since they do not affect the denial of the motion to dismiss, and no exception was taken to them when charged. For these reasons the verdict of the jury against both defendants must be sustained.

Nevertheless the trial judge erred in dismissing the cross-complaint of the defendant Milef Realty Corporation asking judgment that the defendant J. Harry McNally, Inc., is liable to it for the claim made against it by the plaintiff. The contract between the defendants provides that: Should any person, or persons, or property be damaged or injured by the Contractor, or by any person, or persons, employed under him, in the course of the performance by him of this agreement or otherwise, whether by negligence or otherwise, said Contractor shall alone be liable, responsible and answerable therefor and does hereby agree, to and with the said Owner to hold harmless and indemnify the Owner, of and from all claims, suits, actions, costs, counsel fees, expenses, damages, judgment or decrees by reason thereof.” The trial judge to whom that question was submitted held that since both defendants were culpable, neither can have indemnity from the other, citing Oceanic Steam Navigation Co. v. Compania Transatlantica Espanola (134 N. Y. 461).

Even in that case the court pointed out that the rule does not apply where the two parties have not participated in a wrong, and the wrongful act of one exposes the other to liability and damage. Here liability of the defendant owner and general contractor arises from its failure to protect the plaintiff adequately from the danger which might reasonably be apprehended from the operation of the hod hoist. It did not participate in the negligent operation of the hoist. Its own negligence was, at • most, passive in failing to take more precautions against such operation. In the absence of a contractual obligation by the operator of the hod hoist, assuming sole responsibility for the results of its own negligence, the question of ultimate liability as between the two defendants might be debatable. (Cf. Wanamaker v. Otis Elevator Co., 228 N. Y. 192; Scott v. Curtis, 195 N. Y. 424; Village of Port Jervis v. First Nat. Bank, 96 N. Y. 550.) Here the contractor did by express agreement assume such responsibility.

The contractor’s contractual obligation was obviously intended to reheve the owner from liability for injury suffered by any person in the course of the performance ” of work by the contractor. The owner was not exposed to such liability in the first instance, unless failure, on its part, in some duty owed to the injured party contributed to the injury. A construction of the contractor’s obligation which would exclude from its scope all injuries in which the contractor failed in some duty owed would entirely defeat the purpose of the obligation and render the obligation illusory. It is irrelevant that the owner obtained further protection from a policy insuring it against damages resulting from its own negligence. It might choose to do so if not satisfied that it was sufficiently protected by the agreements made by its contractors. Those agreements may not provide indemnity in all cases. Enough that the contractor’s obligation plainly covers injuries caused by the contractor’s negligence in which the owner did not participate, and where the owner’s negligence, if any, was only passive and in the performance of a duty owed not to the contractor but to the injured party. We do not now decide whether it might extend further.

The judgment in favor of the plaintiff should be affirmed, with costs. The judgment in favor of the defendant J. Harry McNally, Inc., dismissing the cross-complaint, should be reversed and judgment on the cross-complaint directed in favor of the defendant Milef Realty Corporation, with costs in all courts against the co-defendant.

Cardozo, Ch. J., Pound, Crane, Kellogg, O’Brien and Hubbs, JJ., concur.

Judgment accordingly.


author: Per Curiam.

text:
    In the Matter of the Claim of Sidney L. Fineman, Appellant, against Camp Ga-He-Ga et al., Respondents.
    (Submitted February 8, 1932;
    decided February 16, 1932.)

      Myron M. Fineman for motion.

      Sydney Weitzer opposed.
   Per Curiam.

Appellant contends that under section 23 of the Workmen’s Compensation Law (Cons. Laws, ch. 67) leave must be obtained to appeal to this court from a unanimous reversal by the Appellate Division of an award of the State Industrial Board.

In Matter of Harnett v. Steen Co. (216 N. Y. 106) it was held that it was the legislative intention that an appeal might be taken to the Court of Appeals from a decision of the Appellate Division in compensation cases in the same manner and subject to the same limitations as are now provided in civil actions. While section 23 has been amended since the date of that decision, the legislative intent remains the same. Otherwise we would have the singular anomaly of an appeal as of right in all cases where the decision of the Appellate Division is not unanimous, e. g., where the vote was four to one for reversal, and no appeal as of right where the vote for reversal is unanimous. Such unreasonableness is not attributable to the Legislature’s action.

It has been the practice of this court to hear such appeals as of right, whenever an appeal could be taken as of right in a negligence case. With section 23 of the Workmen’s Compensation Law thus construed by the court, the right of appeal as defined by New York State Constitution, article VI, section 7, as amended, in effect January 1, 1926, is not restricted by the provisions of section 23 and leave to appeal from a unanimous reversal is a constitutional right.

Motion denied.


author: Cardozo, Ch. J.

text:
    The People of the State of New York ex rel. John A. Hastings, Appellant, against Samuel H. Hofstadter et al., Constituting a Legislative Committee, Respondents. In the Matter of John A. Hastings, Appellant; Samuel H. Hofstadter et al., Constituting a Legislative Committee, Respondents.

      (Argued February 8, 1932;
    decided March 3, 1932.)

      Frank P. Walsh for appellant.
    The appellant being a member of the Legislature of the State of New York and attending upon its session is privileged from arrest in a civil action or proceeding under the provisions of section 2 of the Legislative Law, and the court was without authority to adjudge him guilty of contempt and to direct that he be committed therefor. (Matter of Superintendent of Poor, 6 App. Div. 144; Matter of Union Bank of Brooklyn, 147 App. Div. 593; 204 N. Y. 313; Typothetœ of City of New York v. Typographical Union No. 6, 117 N. Y. Supp. 144; 132 App. Div. 931; 196 N. Y. 571; People ex rel. Negus v. Dwyer, 90 N. Y. 402; Eastern Concrete Steel Co. v. Bricklayers’ & Mason Plasterers’ International Union, 200 App. Div. 714; People ex rel. Frank v. McCann, 227 App. Div. 57; Rutherford v. Holmes, 5 Hun, 317; 66 N. Y. 368; Sherwin v. People, 100 N. Y. 351.) The power of the legislative committee to issue the subpoena ended on the dissolution of the Legislature, December 31, 1931, and the subpoena having been issued and served January 4, 1932, four days after the dissolution of the Legislature of 1931, the same was void and of no legal force and effect. (Doyle v. Hofstader, 257 N. Y. 244; People ex rel. Argus Co. v. Palmer, 12 Misc. Rep. 392; Matter of Caldwell, 61 W. Va. 49; Matter of Superintendent of Poor, 6 App. Div. 144; Anderson v. Dunn, 6 Wheat. [U. S.] 204; Kilbourn v. Thompson, 103 U. S. 168; McGrain v. Dougherty, 273 U. S. 135; People ex rel. McDonald v. Keeler, 99 N. Y. 463.) The service of the subpoena was void, and the order of the court finding the appellant guilty of contempt and ordering his arrest was erroneous. (Everard v. Brennan, 2 City Court Rep. 351; Miner v. Markham, 28 Fed. Rep. 387; Ross v. Brown, 7 Penn. C. C. Rep. 142.)

      Samuel Seabury and George Trosk for respondents.
    The service of a subpoena does not constitute an arrest, and, accordingly, a legislator is not privileged from the service of a subpoena or the duty to respond to it. (Merrick v. Giddings, 11 Dist. of Col. 55; Berlet v. Weary, 67 Neb. 75; Howard v. Trust Co., 12 Dist. of Col. App. Cases, 222; Rhodes v. Walsh, 55 Minn. 542; United States
      v. Cooper, 4 Dallas [U. S.], 317.) The joint resolution was ratified and effectuated by confirmatory legislation. (Matter of Davis, 58 Kan. 368; Laws of 1931, chaps. 637, 773 and 774; People v. Learned, 5 Hun, 626.) The order adjudging the appellant in contempt of court was right in providing that he should .be imprisoned for thirty days, and that he should be apprehended and brought before the committee to testify. (Civ. Pr. Act, § 405; People ex rel. Karlin v. Culkin, 248 N. Y. 465; People v. Keeler, 99 N. Y. 463; Penal Law, § 601.)
   Cardozo, Ch. J.

On March 23, 1931, a joint resolution was adopted by the Senate and Assembly for the appointment of a committee to investigate the administration of the departments of the government of the city of New York, the report to be submitted not later than February 1, 1932. The resolution provided that the committee might act during the session of the Legislature and during the recess or after adjournment thereof, with the same power and authority it would have were the Legislature in session.”

On January 4, 1932, a subpoena under the hand of the vice-chairman of the committee was served upon the appellant, a member of the Senate, requiring him to attend as a witness on the same day and give testimony as to matters within the scope of the inquiry. The appellant declined to appear, maintaining that the service of the subpoena was a breach of his privilege as a member of the Senate, and that the jurisdiction of the committee had expired by lapse of time. A motion to vacate the subpoena was denied, and the denial affirmed by the Appellate Division. The appellant still declining to appear, a motion was made in behalf of the committee to adjudge him in contempt. This motion was granted. By an order of the Supreme Court, which the Appellate Division has affirmed, the appellant was condemned to imprisonment for thirty days, and the Sheriff of any county in which he might be found was directed to apprehend him and bring him, before the committee, or a duly constituted subcommittee, in response to the subpoena.

The several objections to the process thus challenged by the witness will be considered in succession.

(1) “A member of the legislature shall be privileged from arrest in a civil action or proceeding other than for a forfeiture or breach of trust in public office or employment, while attending upon its session, and for fourteen days before and after each session, or while absent, for not more than fourteen days during the session with the leave of the house of which he is a member (Legislative Law, § 2; Cons. Laws, ch. 32). The appellant insists that the service of a subpoena requiring his attendance before a committee of the Legislature is a breach of the privilege thus secured to him by statute. Manifestly the letter of the privilege does not offer him exemption. A subpoena is not an arrest, though there are circumstances in which disobedience to its command may give rise to an arrest. If that infirmity in the claim of privilege were to be disregarded, others would remain. The execution by the Sheriff of a warrant to apprehend a defaulting witness and bring him before the Legislature or one of its committees (Civ. Pr. Act, § 406, subd. 2), is not an arrest in a civil action or proceeding.” It is not in aid of a proceeding in a court of justice. It is in aid of a legislative function, the ascertainment of facts whereon to build the statutes of the future (People ex rel. Karlin v. Culkin, 248 N. Y. 465, 478). The judge issuing the warrant is merely the implement of the Legislature, appointed by statute to act in its behalf. The Sheriff executing the warrant is sheltered by a like consent. There is no privilege from arrest that can be asserted against the Legislature itself (Matter of Oscar E. Keller, 67th Congress, Congressional Record, vol. 64, part 3, p. 2410, subcommittee report on House Resolution 425, Jan. 6, 1923; cf. Cushing, Law & Practice of Legislative Assemblies, § 942; Hansard’s Parliamentary Debates [2d series], vol. 18, pp. 1070, 1086).

The same considerations answer the appellant’s argument that the range of the privilege must be measured by the standards of parliamentary law and practice, and that so viewed the service of a subpoena is an arrest within the spirit of the statute, even if not within the letter. We do not need to determine whether this would be so if the service were in aid of a proceeding pending in a court. There is respectable authority for each of the opposing views (Cushing, Law & Practice of Legislative Assemblies, § 598; Jefferson’s Manual, § III; Stubbs, Const. Hist. of England [5th ed., 1903], vol. 3, p. 513; Everard v. Brennan, 2 City Court Reports, 351; Matter of Potter, 55 Barb., appendix, p. 625; contra, Berlet v. Weary, 67 Neb. 75; Rhodes v. Walsh, 55 Minn. 542; United States v. Cooper, 4 Dallas [U. S.], 341; [cf. People ex rel. Broderick v. Morton, 156 N. Y. 136; Williamson v. United States, 207 U. S. 425, 434]). Choice may prudently be postponed until choice becomes essential. The decisive feature in this case is the origin of the mandate, the character of the governmental agency whence comes the summons to appear. The privilege dissolves when the member in asserting it is guilty of disloyalty to the duties of his membership. “It is in the power of the Parliament and doth not bind the Parliament itself ” (Vol. 64, Congressional Record, part 3, pp. 2415, 2422, citing Resolution of the House of Commons, adopted 1641; also Blacks tone, Commentaries, book 1, p. 163). “ The injury done to the individual ’’ is merely “ an injury done to the house of which he was a member ” (Stubbs, supra). There is no injury to the agent when the principal consents.

(2) The subpoena is assailed upon the ground that the life of the committee ended upon the final adjournment of the Legislature on April 10, 1931, or, at the latest, on December 31, 1931, with the end of the term of office for which one of the two houses had been chosen.

We have little difficulty in overruling this contention in so far as it has relation to the life of the committee during the months of adjournment and until the end of the year. The great weight of judicial authority sustains the power of the Legislature to invest its committees with power to function though the session is over (People v. Learned, 5 Hun, 626; Matter of Davis, 58 Kan. 368, 370; Matter of Caldwell, 61 W. Va. 49; Commonwealth v. Costello, 21 Penn. Dist. Rep. 232; Commercial & Farmers Bank v. Worth, 117 N. C. 146). A distinction has been drawn between a resolution by a single house (Matter of Caldwell, supra) and the joint action of the two houses, but the distinction is unimportant here where the resolution was concurrent. To the weight of judicial authority is to be added that of a practical interpretation ancient and unbroken. Many instances, brought together by the industry of counsel for the committee, are stated in the brief. A closer question arises when we ask ourselves whether a mere resolution may invest a committee with power when the year is at an end for which the Assembly was elected. Undoubtedly the members of the committee will be permitted to report, for to say that they may do this is to say little more than that the Legislature is at liberty to hear them if it will. This does not mean of necessity that a committee appointed in one year may exercise in a later year all the powers that belonged to it at the time of its creation, the power to disburse the appropriated moneys, the power to subpoena, and the power to punish for contempt. For many purposes, a newly-elected house is deemed a newly created body, its life not continuous with that of the house that went before it (Opinion of the Justices to the Senate, 239 Mass. 603; cf. Matter of Hague, [N. J.] 147 Atl. Rep. 220). This is probably the reason why the rules of each house are adopted anew when a new house is elected, though the long continued practice is to renew them without change (Cushing, supra, § 613; Jefferson’s Manual [ed. Deschler], § XI, p. 117). Accordingly, treatises of weight give support to the view that the authority of a legislative body may not be continued by resolution beyond the expiration of the term for which the body was elected, and that if life is to be prolonged thereafter, the result must be attained by the adoption of a statute (Hinds, Precedents of the House of Representatives, vol. IV, § 4545; Jefferson's Manual, § LI, p. 249; Cushing, supra, § 497).

We leave the question open, for the record now before us does not require us to answer it. Statutory confirmation after a resolution has been adopted is as effective as statutory authority in advance of its adoption (People v. Learned, 5 Hun, 626). Such confirmation is clearly visible when the course of legislation with reference to this committee is followed through the year. By chapter 637 of the Laws of 1931, which became a law April 22, 1931, there was appropriated in aid of this inquiry the sum of $250,000 to be added to a like sum included in the budget. The language of the act is that “ the sum hereby appropriated shall be available for the use of the joint legislative committee appointed pursuant to joint resolution of the legislature, to investigate the affairs of the city of New York, and shall be payable only on audit of the comptroller, after approval by the speaker of the assembly and the president pro tempore of the senate and also by the chairman of the committee.” The Legislature that passed this act must have known that the committee was to continue till February of the next year when its report would be presented. The conclusion is almost unthinkable that the appropriation was not to be available for the printing of the report and for other necessary disbursements during the weeks immediately preceding the date of presentation. If the committee could exercise its functions by drafts on the public purse, it could exercise them also by continuing to inquire. Even more significant are the provisions of a later act (Laws of 1931, ch. 773) adopted on August 28, 1931, the work of a special session called by the Governor for the declared purpose of supplying this committee with powers denied to it before (Matter of Doyle, 257 N. Y. 244). The statute begins with a declaration that when used in this chapter ' committee ’ shall be deemed to refer to and mean the joint legislative committee of the senate and the assembly, appointed pursuant to the joint resolution adopted by the senate and the assembly on March 23, 1931, to investigate, inquire into and examine the administration and conduct of the various departments of the government of the city of New York, and of the counties, the state and local courts, and other agencies geographically included within said city.” There is then a grant of authority to give immunity to witnesses who may be compelled to give testimony that would otherwise tend to expose them to punishment for crime. Here is an unmistakable recognition of the organization of the committee as established by the concurrent resolution and an unmistakable confirmation of its continuing validity. Mere incidents and details, not essential to the fife of the investigating body, capacities and functions capable of being divested without destroying its existence, will not be held to have been confirmed by the appropriation of a sum of money, nor even, it may be, by the later grant of added powers. On the other hand, those terms of the resolution that define the essential organization of the investigating body, its birth and life and death, must be deemed to have been ratified by acts of recognition so explicit and persuasive.

Holding, as we do, that the intention of the lawmakers was to confirm the existence of the committee as the concurring resolution had attempted to create it, there is left the question whether any rule of law exists whereby effect must be refused to the intention so declared. No such obstacle is disclosed to us by our examination of the precedents, nor does any become apparent from the principles that fix the limits of legislative power. No one would doubt the validity of a statute to the effect that whenever a legislative committee has been appointed in one year, its members, if re-elected, shall continue to constitute the committee during the next year, unless and until their membership is otherwise revoked. What the Legislature may say in a statute applicable to legislative committees generally; it may say with the same validity in defining the life and the functions of a particular committee. Far from departing thereby from the principles and precedents of parliamentary procedure, it is following the very method to which consecrating usage has affixed the stamp of regularity (Hinds, supra; Jefferson, supra).

(3) The question remains as to the sanctions available to compel submission to the writ.

By Legislative Law (§ 62-a), the provisions of the civil practice act in relation to enforcing obedience to a subpoena lawfully issued by a judge, arbitrator, referee or other person in a matter not arising in an action in a court of record apply to a subpoena issued by a legislative committee as authorized by this section.”

The provisions of the Civil Practice Act prescribing the procedure for the enforcement of a subpoena issued by a judge, arbitrator, referee or other person in a matter not arising in an action in a court of record, or by a board or committee, are contained in section 406.

By subdivision 2 of that section, a person so subpoenaed who fails to obey the subpoena without reasonable excuse is hable, in addition to any other punishment which may be lawfully inflicted therefor, for the damages sustained by the person aggrieved, in consequence of the failure, and fifty dollars in addition thereto, to be recovered in the same manner as prescribed in the case of a person failing to obey a subpoena issued out of a court of record.” In addition the court or a judge thereof “ upon proof by affidavit of the failure to attend, must issue a warrant to the sheriff of the county commanding him to apprehend the defaulting witness and bring him before the officer, person or body before whom or which his attendance was required.”

By subdivision 3 it is provided that if the person subpoenaed and attending or brought as prescribed in the last subdivision before an officer or other person or a body refuses without reasonable cause to be examined, or to answer a legal and pertinent question, or to produce a book or paper which he was directed to bring by the terms of the subpoena, or to subscribe his deposition after it has been correctly reduced to writing, the person issuing the subpoena, if he is a judge of a court of record, or not of record, may forthwith, or if he is not, then any judge of such court may upon proof by affidavit of the facts, by warrant commit the offender to jail, there to remain until he submits to do the act which he was so required to do or is discharged according to law.”

The sanctions available against the appellant at this •stage of the inquiry are those prescribed by subdivision 2. A warrant may issue to the Sheriff to apprehend him and bring him before the committee or subcommittee issuing the subpoena. In addition he is hable to any other punishment which may lawfully be inflicted for his refusal to obey the writ. He may be prosecuted for a misdemeanor (Penal Law, § 1329). “A person who, being duly summoned to attend as a witness before either house of the legislature or any committee thereof, authorized to summon witnesses, refuses or neglects without lawful excuse to attend pursuant to such summons, is guilty of a misdemeanor” (Penal Law, § 1329). He may be punished as for a contempt by the Legislature itself (Legislative Law, § 4). There is no statute, however, whereby the failure to obey a subpoena issued by the Legislature may be punished by the judiciary as constituting a contempt of court. So it was held over thirty-five years ago by an able court in determining the method of enforcing a subpoena issued by a board of supervisors (Matter of Superintendent of Poor, 6 App. Div. 144). We have discovered no statute enacted in the interval whereby power has been enlarged.

The proper procedure is, therefore, this: a warrant shall issue to the Sheriff of any county wherein the appellant may be found commanding the officer to apprehend the defaulting witness and bring him before the committee, or the subcommittee thereof before whom his attendance was required. If the witness when brought before such committee or subcommittee refuses to be examined, or to answer a legal and pertinent question, or to produce a book or paper, the court or a judge thereof, upon proof by affidavit of the facts, may by warrant commit the offender to jail, there to remain until he submits to do the act which he was so required to do or is discharged. The sentence of imprisonment at this stage of the inquiry must be held to be premature and thus illegally imposed.Whether imprisonment will become necessary hereafter, the sequel will decide.

The order denying the motion to vacate the subpoena should be affirmed.

The order adjudging the appellant in contempt and prescribing the remedies whereby the subpoena may be enforced should be modified in accordance with this opinion and as modified affirmed.

Pound, Crane, Lehman, Kellogg, O’Brien and Hubbs, JJ., concur.

Ordered accordingly.

       Refusal to obey a subpoena issued by a court is punishable as a misdemeanor, but under another section (Penal Law, § 600, subd. 4).


text:
    The People of the State of New York ex rel. Samuel Falk, Respondent, v. The Sheriff of New York County, Defendant. Samuel H. Hofstadter et al., Constituting a Legislative Committee, Appellants.
    (Argued February 8, 1932,
    decided March 3, 1932.)

      Samuel Seabury and George Trosk for appellants.
    A witness who has been adjudged guilty of contempt for refusing to answer a question on one occasion cannot purge himself of that contempt by committing perjury on another. Nothing short of frankness and perfect candor, coupled with an awakened conscience, can earn absolution from an existing contempt. (United States v. Shipp, 203 U. S. 563; Briddon v. Briddon, 229 N. Y. 452.)

      Samuel Falk and Ilo Orleans for respondent.
    Compliance by the witness with the order of the Court of Appeals, in itself, entitled him to immediate release. (Matter of Hudgings, 249 U. S. 378; Rutherford v. United States, 258 Fed. Rep. 855.) The court’s sole duty was to determine whether its order was complied with. (United States v. Appel, 211 Fed. Rep. 495.) The witness having made a direct answer, neither evasive nor tantamount to a failure or refusal to answer at all, has complied with the court’s order irrespective of the truth or falsity of his answer. (Matter of Hudgings, 249 U. S. 378; Fromme v. Gray, 14 Misc. Rep. 592; 148 N. Y. 698; Silberman Dairy Co. v. Econopouly, 177 App. Div. 97; Moynihan v. Devany, 90 Misc. Rep. 346.)
   Per Curiam.

An order of the Supreme Court, entered upon a decision of this court, adjudged that William F. Doyle, a witness upon a legislative inquiry, stand committed until he answers the question whether he has bribed any public officer ” (Matter of Doyle, 257 N. Y. 244).

The witness, who was then in jail for failure to answer that question as well as others, appeared before the legislative committee, and answered the question no.”

That answer having been given, he applied for his discharge, which was opposed by the committee on the ground that his denial was false.

The Supreme Court sustained a writ of habeas corpus sued out in his behalf by the relator, his attorney, and the Appellate Division unanimously affirmed.

The conclusion of the committee that the question had been falsely answered was not binding on the Supreme Court, which was under a duty to exercise an independent judgment, even if we assume for the purpose of this appeal that the truthfulness of the answer could be considered at all. (As to this see United States v. Appel, 211 Fed. Rep. 495, per Learned Hand, J.; Matter of Hudgings, 249 U. S. 378; Fromme v. Gray, 148 N. Y. 695; Matter of Silberman Dairy Co. v. Econopouly, 177 App. Div. 97.) The court was not satisfied that the disclaimer of a bribe was false. We are not at liberty to review its conclusion in that regard unless untruthfulness is apparent as a matter of law.

Upon the record now before us, the untruthfulness of the answer may be a possible inference, but a necessary one it certainly is not. We are not at liberty to say, at all events as a matter of law, that the testimony is not a bona fide effort to answer the questions at all ” (United States v. Appel, supra). True, indeed, it is that at an earlier stage of the inquiry the witness had declined to answer a like question on the ground that the answer might tend to incriminate him. We are asked how such a claim of privilege could have been genuine if the witness could truthfully have answered no.” But to put such a question is to ignore the character and limitations of the proceeding now before us. Conceivably the witness interposed the claim of privilege in a deceitful endeavor to hinder and delay the legislative inquiry. Whether such an endeavor would be a contempt of the Legislature, punishable by that body (Legislative Law, § 4; Cons. Laws, ch. 32), we do not now consider. Such a contempt, if contempt it was, does not constitute the offense for which the witness is in custody. The proceeding in which he has been committed is not in the strict sense a proceeding to “ punish ” for a contempt at all, but one in aid of the Legislature to enforce the duty to answer a pertinent inquiry by keeping the witness in jail till the answer has been supplied (Matter of Hastings, 258 N. Y. 425; Civ. Pr. Act, § 406, subd. 3). When once that is done, he is entitled to his discharge, though there was evasion or deceit in setting up the claim of privilege whereby an answer was delayed. We do not go into the question whether a misunderstanding of the law as to the essential elements of bribery could have led the witness to believe in the heat of the inquiry that his answer would have to be yes,” though advice of counsel later might show that it could truthfully be “ no.” Enough for present purposes that whatever contempt may have been involved in his deceitful claim of privilege must have redress in some other proceeding and not improbably in another forum. To hold that he must stay in jail because he has given an answer “ no ” would be equivalent to ruling that he must stay there till he gives the answer yes.” This would be to hold that he must confess the crime of bribery whether he has committed it or not.

The order should be affirmed.

Cardozo, Ch. J., Pound, Crane, Lehman, Kellogg, O’Brien and Hubbs, JJ., concur.

Order affirmed.


text:
    David Metzger, Respondent, v. Harry P. Swift et al., Appellants.

      (Submitted February 11, 1932;
    decided March 3, 1932.)

      Arthur J. W. Hilly, Corporation Counsel (William E. C. Mayer, Willard S. Allen and J. Joseph Lilly of counsel), for appellants.
    The defendant Swift was under no disability in respect of accepting and holding the office of member of the Board of Health by reason of his being a member of the Board of Higher Education of the city of New York, and member of the board of trustees of Hunter College. (Metzger v. Swift, 231 App. Div. 598; Matter of Hirshfield v. Cook, 227 N. Y. 297; Matter of Gelson v. Berry, 257 N. Y. 551; Lewis v. Board of Education, 258 N. Y. 117; Matter of Hulbert v. Craig, 124 Misc. Rep. 273; 213 App. Div. 865; 241 N. Y. 525; Ackley v. Board of Education, 174 App. Div. 44.)

      Samuel D. Smoleff for respondent.
    The offices of member of the board of trustees of Hunter College and member of the Board of Higher Education of the city of New York are connected with the government of the city of New York. (Matter of Hirshfield v. Cook, 227 N. Y. 297; Lewis v. Board of Education, 258 N. Y. 117.) By holding offices connected with the government of the city of New York, the defendant Swift vacated the office of member of the Board of Health of the city of New York. (New York City Charter, § 1549; Matter of Hulbert v. Craig, 124 Misc. Rep. 273 ; 213 App. Div. 865; 241 N. Y. 525; Davenport v. Mayor, 2 Thomp. & Cook, 536; 67 N. Y. 456; People ex rel. Ryan v. Green, 58 N. Y. 295.) The Appellate Division correctly interpreted section 1549 of the New York City Charter as automatically vacating all of the offices concurrently held by the defendant Swift. (Matter of Hirshfield v. Cook, 227 N. Y. 297; People ex rel. Wells & Newton Co. v. Craig, 232 N. Y. 125; People ex rel. Sherwood v. Bd. of Canvassers, 129 N. Y. 360; Maxmilian v. Mayor, 62 N. Y. 160; Matter of Simmons, 203 N. Y. 241; People v. Ahearn, 131 App. Div. 30.)
   Per Curiam.

This is a taxpayer’s action to restrain the payment of salary to the defendant Swift, a member of the Board of Health of the city of New York.

Section 1549 of the Greater New York Charter (Laws of 1901, ch. 466) provides as follows: “Any person holding office, whether by election or appointment, who shall, during his term of office, accept, hold, or retain any other civil office of honor, trust, or emolument under the government of the United States (except commissioners for the taking of bail, or register of any court), or of the State (except the office of notary public or commissioner of deeds, or officer of the national guard), or who shall hold or accept any other office connected with the government of The City of New York, or who shall accept a seat in the legislature, shall be deemed thereby to have vacated any office held by him under the city government. No person shall hold two city or county offices, except as expressly provided in this act; nor shall any officer under the city government hold or retain an office under the county government, except the office of supervisor, or when he holds such office ex officio, by virtue of an act of the legislature; and in such case shall draw no salary for such ex officio office.”

The defendant Swift was appointed on March 6, 1929, a member of the Board of Health of the city of New York, and took and subscribed the statutory oath of office. At that time he was a trustee of Hunter College of the city of New York (Greater N. Y. Charter, § 1140), a member of the Hunter College Teachers’ Retirement Board (Greater N. Y. Charter, § 1146, subd. B 1), and a member of the Board of Higher Education of the city of New York (Laws'of 1926, ch. 407), and these offices he retained or attempted to retain after his appointment to the Board of Health. The judgment under review decides that the effect of his assumption of the new office was not merely a forfeiture of the old ones, but a forfeiture of the new one too (231 App. Div. 597, 604).

The offices occupied by Swift in the educational system were offices connected with the government of the City of New York ” within the meaning of the statute. True indeed it is that education is a State or governmental function. This does not mean that one fulfilling such a function is invariably a State as distinguished from a city officer (Lewis v. Board of Education, 258 N. Y. 117; Matter of Hirshfield v. Cook, 227 N. Y. 297; Public Officers Law, § 2; Cons. Laws, ch. 47). A member of the police force fulfills a State or governmental function (Maxmilian v. Mayor, 62 N. Y. 160; Wilcox v. City of Rochester, 190 N. Y. 137), yet this does not mean that membership in the police force is not an office connected with the government of the city (People ex rel. Bolton v. Albertson, 55 N. Y. 50). One has only to read the names of the departments of the city government in the table of contents of the charter in order to see that the functions of many of them are State and governmental as well as municipal and local.

We think the result of an acceptance by Mr. Swift of the new office of member of the Board of Health was to terminate his tenure of the offices previously held. We are unable, however, to give our assent to the conclusion of the courts below that he not only lost what he had previously held, but never effectively acquired what was given in exchange for them. The thought back of the statute is that a member of the city government shall not hold more than one office at the same time. We strain the statute to the breaking point when we interpret it as meaning that by the mere acceptance of the new office he vacated the old ones, and yet also by retaining the old ones vacated the new. '

The judgment of the Appellate Division and that of the Special Term should be reversed, with costs in the Appellate Division and in this court, and the motion denied with ten dollars costs.

Cardozo, Ch. J., Pound, Ceane, Lehman, Kellogg, O’Brien and Hubbs, JJ., concur.

Judgments reversed, etc.


text:
    William Lowenstein, as Trustee in Bankruptcy of Meyer Reikes, Respondent, v. Annie Reikes, Defendant. Kommel & Zucker, Appellants.

      (Submitted February 9, 1932:
    decided March 3, 1932.)

      Louis M. Kommel for appellants.
    An order under section 58.7 of the Civil Practice Act can only be directed against one who is a party to the action or who is an assign or privy to the party in the action. ((Habeler v. Myers, 132 N. Y. 363.) Where a client obtains money under a judgment or order and turns same over to his attorney in payment of fees owing,, and thereafter such judgment or order is reversed, restitution can only be directed against the client and not against the attorney. (Langley v. Warner, 3 N. Y. 327; Thaxter v. Thain, 100 App. Div. 488; Millfield Realty Co. v. Day, Inc., 257 N. Y. 515.)

      Jacob M. Zinaman for respondent.
    The transfer of the property, while the lis pendens was on record, was wrongful, and appellants, as attorneys, having participated in such wrongful transfer and having received the moneys paid as a consideration therefor, should be required to deposit the same in place of the property. (Civ. Pr. Act, § 587; Forstman v. Schulting, 108 N. Y. 110; Wilmerdings v. Fowler, 14 Abb. Pr. [N. S.] 249; Pincus v. Pincus, 211 App. Div. 128.)
   Per Curiam.

Plaintiff, a trustee in bankruptcy, brought an action in the Supreme Court to set aside a conveyance of real property made by the bankrupt to the defendant, Annie Reikes, his wife. The court at Special Term dismissed the complaint, and while an appeal was pending, the wife who had already made a contract for the sale of the property, delivered a deed and received the purchase price, which was paid to her agents, the appellants, members of the bar. Of the amount so received ($4,432.28), the appellants paid out $814.25 for brokers’ commissions, taxes and other charges, and retained the balance, $3,618.03, for legal services rendered to their client in this suit and in others.

The Appellate Division, upon the appeal by the trustee in bankruptcy, reversed the judgment of dismissal. During the pendency of that appeal, the notice of lis pendens had remained of record, uncanceled. The appellants might have given an undertaking in accordance with Civil Practice Act, section 586, for the payment of any damages suffered by reason of the appeal. In that event, the defendant would have been stayed from disposing of the property. No such undertaking was given.

After the decision of the Appellate Division, which left the action still pending, for it had to do- with nothing except the form of the complaint, the plaintiff made this motion for an order of restitution directed to the defendant and to the appellants, her attorneys. We are concerned at this time with the rights of the attorneys only.

The sale of the property during the pendency of the appeal was not a wrongful act. The plaintiff might have made it wrongful, or at all events ineffective, by filing an undertaking in accordance with the statute (Civ. Pr. Act, § 586), but this he refrained from doing. There is, therefore, nothing in the argument that the attorneys became wrongdoers by co-operating in the sale and receiving the purchase price. We assume that they like their client might have been compelled after the reversal of the judgment to make restitution of the proceeds if they were holding the purchase price as her custodians or agents. The difficulty is that whatever is in their hands is held in their own right, paid and retained in satisfaction of a claim for services. There is nothing in this record to impugn the good faith of their claim or to indicate that the consideration was anything but fair and honest. If the claim is a mere cover, there are other remedies available. Upon payment of the purchase price the legal title to the money became vested in the seller. The remedy of restitution is not available against her transferees and creditors to nullify her use of it (Millfield Realty Co. v. Catena, 257 N. Y. 515; Langley v. Warner, 3 N. Y. 327).

The order should be reversed with costs, and the motion denied.

Cardozo, Ch. J., Pound, Crane, Lehman, Kellogg, O’Brien and Hubbs, JJ., concur.

Order reversed, etc.


text:
    Anna Murmann, as Administratrix of the Estate of George J. Murmann, Deceased, Respondent, v. The New York, New Haven and Hartford Railroad Company, Appellant.

      (Argued February 8, 1932;
    decided March 3, 1932.)

      E. R. Brumley and John M. Gibbons for appellant.
    The defendant, under the law and practice of this State, was entitled to have the Special Term grant its motion to strike out interest on the verdict. (Cleghorn v. Ocean Accident & Guarantee Corp., 244 N. Y. 166; Michigan Cent. R. R. Co. v. Vreeland, 227 U. S. 59; Chesapeake & O. R. Co. v. Kuhn, 76 L. Ed. 118; Engel v. Davenport, 271 U. S. 33; New Orleans & N. E. R. R. Co. v. Harris, 247 U. S. 367; Chesapeake & Ohio Ry. Co. v. Kelly, 241 U. S. 485; Slater v. Mexican National R. R. Co., 194 U. S. 120; Lauria v. Du Pont De Nemours & Co., 241 Fed. Rep. 687; Gulf, C. & S. I. Ry. v. Moser, 275 U. S. 133; Kiefer v. Grand Trunk R. Co., 12 App. Div. 28; 153 N. Y. 688; Loucks v. Standard Oil Co., 224 N. Y. 99; Frounfelker v. D., L. & W. R. R. Co., 73 App. Div. 350; Norton v. Erie R. R. Co., 163 App. Div. 468; Lynott v. Great Lakes Transit Corp., 202 App. Div. 603; 234 N. Y. 626; Bennett v. Atchison, T. & S. F. Ry. Co., 187 Iowa, 897; Grow v. Oregon Short Line R. Co., 47 Utah, 26; Seaboard Air Line Ry. v. Kenney, 240 U. S. 489; Pacheco v. New York, N. H. & H. R. R. Co., 15 Fed. Rep. [2d] 467; Louisville & Nashville R. R. Co. v. Stewart, 241 U. S. 261; Minneapolis & St. Louis R. R. Co. v. Bombolis, 241 U. S. 211; Missouri, Kansas & Texas Ry. Co. v. Harris, 234 U. S. 412.)

      Charles D. Lewis, Thomas J. O’Neill and Leonard F. Fish for respondent.
    The Federal Employers’ Liability Act is not a foreign law, but part and parcel of the law of the State of New York, and, therefore, not subject to the same rules of enforcement and interpretation applicable to statutes of foreign countries or sister States. (Claflin v. Houseman, 93 U. S. 130; Techt v. Hughes, 229 N. Y. 222; Douglas v. N. Y., N. H. & H. R. R. Co., 279 U. S. 377; Savage v. Jones, 225 U. S. 501.) The interest provision of section 132 of the Decedent Estate Law is applicable here because it is a procedural matter; not a qualification by local law or rule in derogation of the substantive rights and liabilities established by the Federal act, but merely the exercise of a wholly equitable and justifiable portion of the police power of the State of New York in relation to procedure intended by Congress to be left to the law and rules of the courts of the several States. (Michigan Central R. R. Co. v. Vreeland, 227 U. S. 59; Louisville & Nashville R. R. Co. v. Stewart, 241 U. S. 261; Minneapolis & St. L. R. R. Co. v. Bombolis, 241 U. S. 211; Dickerson v. Stiles, 246 U. S. 631; Chesapeake & Ohio R. R. Co. v. Kelly, 241 U. S. 483; Central Vermont R. R. Co. v. White, 238 U. S. 507; Douglas v. N. Y., N. H. & H. R. R. Co., 279 U. S. 377; Cooper v. N. Y., O. & W. R. Co., 25 App. Div. 383; Slater v. Utica & Black River R. R. Co., 86 N. Y. 401; Leitch v. Chesapeake & Ohio R. R. Co., 97 W. Va. 498; Massachusetts Benefit Assn. v. Miles, 137 U. S. 689.)
   Per Curiam.

In an action under the Federal Employers’ Liability Act, the plaintiff, who is the widow of George J. Murmann and the administratrix of his estate, recovered a verdict for the damages resulting from his death. The damages were assessed by the jury in the sum of $15,000, Section 132 of the Decedent Estate Law (Cons. Laws, ch. 13) provides in substance that n an action under the State law to recover damages for death, interest from the time of death shall be computed by the clerk and added to the verdict. Under the supposed authority of that section, the verdict was increased by the sum of $5,916.55, and judgment entered accordingly. The Supreme Court on the defendant’s motion modified the judgment by striking out the interest. The Appellate Division reversed, denied the defendant’s motion, and reinstated the judgment as entered by the clerk.

We can discover no adequate basis for the allowance of the interest.

Section 132 of the Decedent Estate Law does not extend to actions brought under the Federal statute. The Legislature had no intention to make it reach so far. This is obvious, we think, both from the section itself, and from other related sections with which it must be read (§§ 130, 131). If, however, such an intention had existed, the courts would be unable to give effect to it. The Federal legislation covers the whole field, and the power of the States is not broad enough to change the assessment of the damages as determined by the verdict (Chesapeake & Ohio Ry. Co. v. Kelly, 241 U. S. 485, 491; Gulf, Colorado & Santa Fe Ry. Co. v. Moser, 275 U. S. 133, 135; Kiefer v. Grand Trunk Ry. Co., 12 App. Div. 28; 153 N. Y. 688; Norton v. Erie R. R. Co., 163 App. Div. 468; Lynott v. Great Lakes Transit Corp., 202 App. Div. 613; 234 N. Y. 626; Chicago, M., St. P. & P. R. R. Co. v. Busby, 41 Fed. Rep. [2d] 617).

Cases bearing upon the award of costs (Missouri, K. & T. Ry. Co. v. Harris, 234 U. S. 412, 421), or permitting the addition of interest accruing after the verdict, but not before (Massachusetts Benefit Assn. v. Miles, 137 U. S. 689; Leitch v. Chesapeake & Ohio Ry. Co., 97 W. Va. 498), are either indecisive or irrelevant.

The order of the Appellate Division should be reversed and that of the Special Term affirmed, with costs in the Appellate Division and in this court, and the question certified answered “ yes.”

Cardozo, Ch. J., Pound, Crane, Lehman, Kellogg, O’Brien and Hubbs, JJ., concur.

Ordered accordingly.