author: Hubbs, J. O’Brien, J.

text:
    Peoples Trust Company of Malone, Respondent, v. Harold G. O’Neil, Defendant, and Ella S. O’Neil, Appellant.
    Argued January 15, 1937;
    decided March 16, 1937.

      Robert E. Whalen, Thomas E. Shean and Fred J. Flanagan for appellant.
    The defendants’ motion for a non-suit and the dismissal of the complaint at the close of the plaintiff’s case should have been granted. (Mason v. Henry, 152 N. Y. 529; Bender v. Blessing, 36 N. Y. Supp. 163; Metropolitan Life Ins. Co. v. Meeker, 85 N. Y. 614; Hulbert v. Nichol, 20 Hun, 454.) The notes were barred by the Statute of Limitations as to the defendant-appellant, and such statute is an absolute defense. (Brooklyn Bank v. Barnaby, 197 N. Y. 210; State Bank of Binghamton v. Mangan, 268 N. Y. Supp. 146; 269 N. Y. 598; Empire Trust Co. v. Heinze, 242 N. Y. 475; McMullen v. Rafferty, 89 N. Y. 456; Sewell v. Swift, 151 App. Div. 584; Wheeler v. Warner, 47 N. Y. 519.) Part payments when relied upon to take a case on a note out of the Statute of Limitations, apply only against the person making them. (Brooklyn Bank v. Barnaby, 197 N. Y. 210; Littlefield v. Littlefield, 91 N. Y. 203; Utica Nat. Bank v. Ballou, 49 N. Y. 158; Shoemaker v. Benedict, 11 N. Y. 176; State Bank of Binghamton v. Mangan, 268 N. Y. Supp. 146; Empire Trust Co. v. Heinze, 242 N. Y. 475; Sewell v. Swift, 151 App. Div. 584.) The liability of the defendant-appellant terminated six years from the date of the making of the notes, regardless of the wording on the back of the same. (Mead v. Parker, 111 N. Y. 259; Insurance Co. v. Wright, 76 N. Y. 445; McMurray v. Noyes, 72 N. Y. 524; Alger v. Alger, 83 App. Div. 168; Bartholomew v. Seaman, 25 Hun, 619.) This was not a continuing guaranty. (Mutual Life Ins. Co. v. U. S. Hotel Co., 82 Misc. Rep. 632; Ridge v. Judson, 24 N. Y. 64; Froment v. Taylor, 25 Misc. Rep. 776; City Nat. Bank v. Phelps, 16 Hun, 160; 86 N. Y. 484; Picker v. Fitzelle, 28 App. Div. 519.)

      H. W. Main and Louis H. Starikov for respondent.
    Appellant by her indorsements became an absolute guarantor of payment and is, therefore, liable as a surety. (McMurray v. Noyes, 72 N. Y. 523; Howe Machine Co.
      v. Farrington, 16 Hun, 591; 82 N. Y. 121; Curtis v. Brown, 2 N. Y. 225; Davis v. Wells, 104 U. S. 159; Pennsylvania Trust Co. v. McElroy, 112 Fed. Rep. 509; County Trust Co. v. Mara, 242 App. Div. 206; 266 N. Y. 540; Stein v. Whitman, 156 App. Div. 861; Douglas v. Howland, 24 Wend. 35.) The Statute of Limitations is no defense here to the guarantor. (Catskill National Bank v. Dumary, 206 N. Y. 550; Westchester Mortgage Co. v. McEntire, 168 App. Div. 139; Custeloid Co. v. Graubard, 126 Misc. Rep. 606; Parker v. Stroud, 98 N. Y. 379; Merritt v. Todd, 23 N. Y. 28; Pardee v. Fish, 60 N. Y. 265; Herrick v. Woolverton, 41 N. Y. 581; Wheeler v. Warner, 47 N. Y. 519; Crim v. Starkweather, 88 N. Y. 339.)
   Hubbs, J.

Harold G. O’Neil, a defendant, made and delivered to the respondent two demand negotiable promissory notes, for which he received the consideration. The appellant Ella S. O’Neil, his mother, prior to delivery of the notes, guaranteed the payment thereof by indorsing on the back of each the following: For value received I hereby guarantee the payment of the within note and hereby waive demand of payment, protest and notice of protest on the same.”

She never made any payments on the notes. Her son, the maker, made certain payments, but not as her agent or with her authority. It is conceded that she is an absolute guarantor for payment of the notes. This action was commenced more than six years after the notes became payable and her liability as guarantor became fixed. Her defense is that she has been released by the six-year Statute of Limitations. It has thus far been decided that so long as the maker remained liable for payment on the notes appellant’s guaranty continues and she remains liable. It is argued that as the maker continues to be liable, as the Statute of Limitations has not run against him because of his payments, it has not run against the appellant, the guarantor.

As the notes were payable on demand, the Statute of Limitations commenced to run in favor of the appellant at once, and her liability as guarantor became fixed. (Civ. Prac. Act, § 15; McMullen v. Rafferty, 89 N. Y. 456; 3 Williston on The Law of Contracts, § 2004.)

After the expiration of six years, if no payment had been made on the notes, appellant would have been relieved from liability by the six-year Statute of Limitations. It is said, however, in effect, that as payments were made by the maker of the notes, the statute was extended for six years from the date of the last payment. Unquestionably that is true as to the maker. How was it extended as to the appellant guarantor? The statute could only be extended as to the appellant by payments made by the maker if he, in making the payments, made them as appellant’s agent. (Littlefield v. Littlefield, 91 N. Y. 203; Akin v. Van Wirt, 124 App. Div. 83; McMullen v. Rafferty, supra.)

If it be true that the liability of a guarantor may be extended by payments made by the maker which keep the obligation alive as against him, then the obligation of a guarantor may be indefinitely extended by the maker mailing small payments upon the obligation every six years and thereby keeping it alive against himself. (Shoemaker v. Benedict, 11 N. Y. 176, at pp. 186, 187.)

It is well settled that a payment in case of a joint liability by one does not extend the statute as to others jointly liable. (Hoover v. Hubbard, 202 N. Y. 289; State Bank of Binghamton v. Mangan, 240 App. Div. 327; affd., 269 N. Y. 598; 1 Williston on The Law of Contracts, § 191.)

The same rule applies as to a payment by a principal debtor. It does not have the effect of extending the statute as against a surety. (1 Williston on The Law of Contracts, § 193; Ulster County Sav. Institution v. Deyo, 116 App. Div. 1; affd., 191 N. Y. 505.)

Neither can a payment by a surety extend the statute against the principal. (1 Williston on The Law of Contracts, § 193; Harper v. Fairley, 53 N. Y. 442.)

Professor Whiteside in his notes on the Restatement of the Law of Contracts says that section 127 states the New York rule, citing Shoemaker v. Benedict (11 N. Y. 176) and Hoover v. Hubbard (202 N. Y. 289).

Unquestionably the rule is different in certain other States. (1 Williston on The Law of Contracts, § 346, p. 671.)

The obligation of a joint maker and of a surety is primary. That of a guarantor is an independent separate contract. (Fischer v. Mahland, 191 App. Div. 209; Stein v. Whitman, 156 App. Div. 861; revd. on other grounds, 209 N. Y. 576.)

It would seem on principle, therefore, that the rule applicable in the case of a joint maker or surety should be applicable in the case of an absolute guarantor. That principle was correctly stated by Judge Earl in McMullen v. Rafferty (89 N. Y. 456), and the case has been frequently cited and never questioned or overruled.

14 Am. & Eng. Ency. of Law (2d ed.), p. 1161, reads: “ After a cause of action on the principal contract has become barred by the Statute of Limitations, no subsequent acknowledgment by the principal debtor can take the case out of the statute as to the guarantor. The principal and guarantor are liable on distinct grounds, and the subsequent acts of the former in relation to the original obligation cannot be imputed to the latter any further than those of a stranger,” citing Meade v. M’Dowell (5 Binn. [Pa.] 195). The cases in this State hold that there is no difference in the rule whether the payment which is claimed extends the statute, is made before or after the due date of the contract. (Shoemaker v. Benedict, supra; Hoover v. Hubbard, supra.)

An action on a contract brought after six years from its due date must be brought on the new promise, express or implied, which operates to take the claim out of the statute. The new promise must be made by the one sought to be bound or his agent, duly authorized or his act thereafter ratified. Prior to the case of Van Keuren v. Parmelee (2 N. Y. 523) the rule followed in some cases in this State was that announced by Lord Mansfield in Whitcomb v. Whiting (Doug. 652) to the effect that a payment or new promise by one joint debtor which had the effect of avoiding the Statute of Limitations as to him had the same effect as to his joint obligors. The Van Keuren case settled the law in this State to the contrary and laid down the principle that such acknowledgment or promise, to take a debt out of the statute, must be made by the party to be charged or by some person authorized by him,” and that there is no mutual agency between joint debtors by reason of the joint contract, which will authorize one to act for and to bind the others in a manner to vary or extend their liability.” (See Shoemaker v. Benedict, 11 N. Y. 176, 184.)

If a joint debtor cannot bind his joint obligor or a principal bind his surety so as to evade the bar of the Statute of Limitations without express or implied authority so to do, how can it on principle be decided that a maker of a note may so bind a guarantor? That a guarantor cannot be so bound has been decided in other jurisdictions. (Wachovia Bank & Trust Co. v. Clifton, 203 N. C. 483; 84 A. L. R. 725, where cases from other States are collated in a note. See, also, 17 Ill. Law Review, 1, and Buswell on The Statute of Limitations § 60.)

_The judgments should be reversed and the complaint dismissed, with costs in all courts.

O’Brien, J.

(dissenting). Appellant’s liability, if any, must rest upon her contract of guaranty. Her sole defense is the six-year Statute of Limitations. She was not the maker, as in State Bank of Binghamton v. Mangan (269 N. Y. 598), nor a co-maker, as in Hoover v. Hubbard (202 N. Y. 289) and Shoemaker v. Benedict (11 N. Y. 176), nor a surety, as in Littlefield v. Littlefield (91 N. Y. 203) and Gould v. Cayuga County Nat. Bank (86 N. Y. 75), nor an indorser within the provisions of the Negotiable Instruments Law (Cons. Laws, ch. 38). Her status differs radically from that of the defendant in McMullen v. Rafferty (89 N. Y. 456), who, instead of executing an agreement expressly guaranteeing payment of a negotiable note, merely wrote his name on the back of a note without any other words. Although the opinion in that case states that the defendant was not an indorser with the rights and liabilities of a simple indorser, suggests that he could be held as a maker or as a guarantor and discusses the effect of the Statute of Limitations in respect to a guarantor, this court in Murdock v. Waterman (145 N. Y. 55, 64) treats the defendant in McMullen v. Rafferty as an indorser.

When appellant contracted to guarantee the payment ” of the notes she became an absolute guarantor for the payment. The effect of this language is that the maker will pay and makes appellant liable when the maker failed to pay. (Catskill Nat. Bank v. Dumary, 206 N. Y. 550, 558.) When she contracted in the form of a guaranty upon the back of the note she cannot be made liable as indorser but is under an absolute agreement to see that the maker paid the note at maturity, (Brown v. Curtiss, 2 N. Y. 225, 228.) Her intent to bind herself as a continuing guarantor must be inferred. The maker did not pay and he has not yet succeeded in shaking off his liability. A distinction between a guarantor and a maker, indorser or surety is recognized (Arant on The Law of Suretyship and Guaranty, pp. 13, 20), and we have held in First Nat. Bank v. Jones (219 N. Y. 312, 314): If the agreement was an unconditional guaranty of payment then the plaintiff’s right of action on the guaranty was complete when the makers of the notes failed to pay according to the terms thereof. (Brown v. Curtiss, 2 N. Y. 225, 227; Stein v. Whitman, 209 N. Y. 576.)”

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

Judgments reversed, etc.


source: Caselaw Access Project

author: Hubbs, J.

license: Public Domain

text:
    Buffalo Valley Realty Company, Appellant, v. The State of New York, Respondent.
    (Claim No. 21937.)
    Argued January 18, 1937;
    decided March 16, 1937.

      Herbert B. Lee for appellant.
    The State took title to claimant’s quadrangle of land by virtue of its filing and service of appropriation map and notice. (Kahlen v. State, 223 N. Y. 383; Matter of Culver Contrg. Corp. v. Humphrey, 268 N. Y. 26; Matter of City of Rochester v. Holden, 224 N. Y. 386.) The State’s error in certifying the ownership of the quadrangle on the map was immaterial. (Boom Co. v. Patterson, 98 U. S. 403; Matter of City of New York [Grand Blvd.], 212 N. Y. 538; United States v. Jones, 109 U. S. 513; Huling v. Kaw Valley Ry. Co., 130 U. S. 559; Granger v. City of Syracuse, 38 How. Pr. 308; Young v. Red Fork Levee Dist., 124 Ark. 61; County of Westchester v. Trustees, 140 App. Div. 188; Buel v. Trustees, 3 N. Y. 197; Matter of Commrs. of Washington Park, 52 N. Y. 131.)

      John J. Bennett, Jr., Attorney-General (Leon M. Layden of counsel), for respondent.
    There was no appropriation by the State of New York of any part of claimant’s property. (Stewart v. Wallis, 30 Barb. 344; People v. Whitneys Point, 32 Hun, 508; 102 N. Y. 81; Matter of Laidlaw, 153 App. Div. 343.) There can be no recovery for damages to property not appropriated. (Miller v. State, 229 App. Div. 423; Transit Com. v. L. I. R. R. Co., 253 N. Y. 345; Adamo v. State, 235 App. Div. 12; Goodale v. Tuttle, 29 N. Y. 459; Bowman v. Town of Chenango, 227 N. Y. 459; Bull v. State, 231 App. Div. 313; Gould v. Booth, 66 N. Y. 62; Van Aken v. State, 261 N. Y. 360.)
   Hubbs, J.

Claimant owned a parcel of land in the town of Elma, consisting of approximately fifty-eight acres, bounded on the west by the center line of Bowen road. Adjoining that land on the south was a parcel likewise bounded by the center line of Bowen road, owned by Herbert B.. Lee, treasurer of claimant corporation. On May 2,1929, the Public Service Commission approved by order the description and map of certain lands required in a grade crossing elimination. In such a proceeding, the statute, Grade Crossing Elimination Act (Laws of 1928, ch. 678), section 6, specifies the procedure whereby the Public Service Commission may cause land to be acquired for grade crossing eliminations. Briefly stated, the requirements are that the Public Service Commission shall direct the Department of Public Works or the railroad corporation to prepare an accurate description and map of any lands which the Commission may deem it necessary to take and direct the Department of Public Works to make or cause to be made an appraisal of such lands. On the approval of such description, map and appraisal by the Commission it shall deliver the description and map to the Department of Public Works and shall -’direct such Department to acquire the lands by appropriation. The description and original tracing of such maps shall be filed in the office of the Department of Public Works which shall cause a certified copy of such description and map to be filed in the office of the Department of State and notice of such filing to be given to the Public Service Commission. On the filing of such description and map in the office of the Department of State, the People may enter and take possession of the lands for the purpose of elimination of any crossing. The Department of Public Works shall thereupon deliver to the Attorney-General a copy of such description and map, “ whereupon it shall be the duty of the attorney-general to advise and certify to the department of public works the names of the owners of the lands so described. * * * The department of public works shall thereupon cause a copy of such description and map, with notice of the filing thereof in the office of the department of state, to be served on the owner or owners of the lands * * * so certified by the attorney-general and from the time of such service the appropriation by the people of the state of the property described in such notice shall be deemed complete and, thereupon, such property shall become and be the property of the people of the state.”

The description and map of the lands sought to be acquired under the order of May 2, 1929, were approved by the Public Service Commission on May 2, 1929, were filed in the office of the Department of Public Works on May 8, 1929, and on that day duly certified to the Public Service Commission by the Department of Public Works. The description referred to the property as “ being lands of Herbert Lee (reputed owner).”

It appears that the Attorney-General by mistake certified that the title to the land in question covered by the description and map was in Herbert B. Lee. Thereafter and on September 21, 1929, a copy of the description and map with formal notice of appropriation were served on Herbert B. Lee and thereafter the papers were filed in the Erie County Clerk’s office. The Court of Claims found “ that said appropriation map, Exhibit 13, was duly filed and recorded in the Erie County Clerk’s office, and all provisions of the statute complied with.”

No different finding could have been made. The statute had been strictly complied with. The fact that the Attorney-General by mistake reported the name of the reputed owner of the parcel in question wrong is immaterial. The statute, nevertheless, vested the title of the land described in the State. There is nothing in the record to indicate that had Lee been the actual owner of all the land covered by such description and map it could have been decided that the State did not acquire title to the land so described.

Subsequently it was discovered that the small parcel in question was owned by claimant. It had filed a claim against the State for damages and, upon discovering-the fact that the land in question was owned by it and not by Lee, it amended its claim to cover that land which in the original proceedings had been included in the description of lands owned by Lee. The State filed an amended map and the Department of Public Works made an order withdrawing the parcel of land in question from the description of land appropriated. If the title to that land had vested in the State it could not divest itself of title and prevent the claimant from recovering its damage for such appropriation. The Appellate Division has decided that there was no appropriation of the small parcel in question. There was no appropriation by the filing of the amended map. The withdrawal of that map was immaterial.

The real question is whether an appropriation resulted by the filing and service of the first map and description in accord with all the terms of the statute except that the certification of the Attorney-General as to the name of the owner resulted in service of that map and description upon Lee, who was the treasurer of claimant, as an individual rather than on the claimant or Lee as an officer of the claimant. The Court of Claims has held that there was an appropriation, and the Appellate Division, in reversing, has called attention to the fact that the preliminary notice was informal; that the second map was never legally served on the claimant, and that, therefore, the Commission had the right to withdraw it and all rights under the second map and description. Upon such conclusions it bases its decision that there was no appropriation.

We are of the opinion that the Appellate Division, whether right or wrong in its conclusion, entirely misconceived the question involved. Of course, the only map and description specifically describing that 0.004 acres of land as to which the award has been made, is the second map as to which the informal notice was served on this claimant. But that parcel was included in the first map filed, and that map and description have never been withdrawn nor has any attempt been made to withdraw them. They constitute, without question, a cloud on claimant’s title if the appropriation should be held to be incomplete. No rights of claimant can be affected by reason of the fact that the award made was limited to the small triangular parcel in question rather than to the entire parcel owned by claimant, and certified as owned by Lee. If this claimant were disputing the State’s title to the land as to which the award was made, there might be some force in a contention that the State had not fulfilled the statutory requirement for appropriation. As the claimant had received actual notice and had filed its claim based upon the appropriation of its land, not under the second map, but on the first map, which covered the land in question, it is too late for the State to contend that it did not appropriate the land because of a technical error in certifying the name of the owner.

The prime purpose of this statute is to enable the State, by filing, certifying and serving notices, or, if service cannot be made, by filing in the County Clerk’s office a map and description, to acquire the land required for a crossing elimination without being required to await the outcome of negotiations or a legal proceeding, to determine the price to be paid.

There is no argument nor basis for an argument that the State did not intend to take this small triangular strip of land in question, and, if it is held not to have taken it, it results in leaving the claimant with a piece of land which juts out into the otherwise continuous arc forming the easterly bounds of the land taken. The State, by fifing and serving the first map and description and proceeding under the statute, appropriated claimant’s land.

The judgment of the Appellate Division should be reversed and the award of the Court of Claims reinstated, with costs

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

Judgment reversed, etc.


author: O’Brien, J.

text:
    Marie B. Swanton, Respondent, v. John Curley, Appellant.
    Argued January 21, 1937;
    decided March 16, 1937.

      Harry A. Gordon for appellant.
    The plaintiff ignored the rights of the defendant and the expense of supporting the daughter was incurred by her husband voluntarily without expectancy of reimbursement. No cause of action was proved. (Burritt v. Burritt, 29 Barb. 124;
      De Brauwere v. De Brauwere, 203 N. Y. 460; Clayburgh v. Clayburgh, 261 N. Y. 464; Krotosky v. Krotosky, 169 App. Div. 850; Matter of Hamilton, 70 App. Div. 73; Matter of Nutrizio, 145 Misc. Rep. 626; Matter of Altmann, 149 Misc. Rep. 115.) The decree of divorce having made provision for the support of the children, the remedy of the plaintiff was in the divorce suit and not by an independent action. (People ex rel. Commissioner of Charities v. Cullen, 153 N. Y. 629; Turner v. Woolworth, 221 N. Y. 425; Haskell v. Haskell, 201 App. Div. 414; Laumeier v. Laumeier, 237 N. Y. 357; Cold Spring L. H. & P. Co. v. Selleck, 256 N. Y. 451; Rudiger v. Coleman, 228 N. Y. 225; People ex rel. Strauss v. Steindler, 223 App. Div. 230; Matter of Altmann, 149 Misc. Rep. 115.)

      Samuel Gottlieb for respondent.
    Plaintiff was not foreclosed by her decree of divorce from maintaining this action. Although the decree specifically charged the defendant with the obligation of supporting the issue of the marriage, it was silent as to the amount to be paid, leaving that to the defendant’s discretion. He exercised no discretion and paid nothing. In that situation an original suit might be maintained to recover a-reasonable sum for necessaries furnished to the daughter. (Laumeier v. Laumeier, 237 N. Y. 357; De Brauwere v. De Brauwere, 203 N. Y. 460; Bennett v. Robinson, 180 Mo. App. 56; Pretzinger v. Pretzinger, 45 Ohio St. 452; Spencer v. Spencer, 97 Minn. 56; Manice v. Randolph, 221 App. Div. 570.) The jury found in accordance with the evidence that the funds expended for the maintenance of the daughter belonged to the plaintiff and came from her separate bank account. (Ochs v. Woods, 221 N. Y. 335.)
   O’Brien, J.

Plaintiff was formerly the wife of defendant. A son and daughter were the offspring of their marriage, which was dissolved in this State by a decree entered in June, 1920, and custody of the daughter awarded to plaintiff. That judgment ordered that “ at all times the defendant shall properly maintain, educate and support the said children, the amount necessary for that purpose being left to the discretion of the defendant.” This language is taken verbatim from an agreement between the parties in February, 1920, shortly after the institution of plaintiff’s action for divorce.

In September, 1920, plaintiff married Hobart Swanton and, during the succeeding ten years, the daughter lived with them. She assumed the name of her stepfather and he supported her. This action was instituted in November, 1931. The complaint alleges the entry of the decree of June, 1920, quoting its terms in respect to the defendant’s obligation to support .both children, his failure .properly to provide for the daughter’s maintenance, pursuant to the decree, and expenditures by plaintiff for such purpose in the sum of $20,000. A verdict for $6,000, which includes only those expenditures during the period of six years prior to the institution of this action, was rendered for plaintiff.

Defendant argues that plaintiff’s sole remedy was in the divorce action and not by an independent action at law. He urges that plaintiff must move to modify the decree so as to fix a definite sum, and relies upon People ex rel. Commissioners v. Cullen (153 N. Y. 629, 636) and Turner v. Woolworth (221 N. Y. 425). If plaintiff has any remedy, she need not be relegated to those provided by section 1170 et seq. of the Civil Practice Act. The Cullen case is not in point. That defendant had been separated from bis wife by virtue of a decree of separation and many years later was convicted as a disorderly person, as one who abandoned his wife, and he was directed to pay a weekly sum for her support. This court held that he had not abandoned his wife and, in view of the particular provisions of the decree of separation, he was not bound to support her “ in the manner contemplated by the marriage contract and enjoined by the common law,” but only in accordance with the provisions of the decree. The judgment in the separation action had made no allowance for the wife’s maintenance, but it did include a direction that, in the event of a change in the husband’s pecuniary circumstances, an application for the wife’s maintenance might be made at the foot of the judgment for a modification in respect to her support. The circumstances here are entirely different. Defendant was ordered by the decree to support his daughter, “ the amount necessary for that purpose being left to the discretion of the defendant.” His discretion could not be arbitrarily exercised. It must be reasonable. The decree can be interpreted only as an order to defendant to expend a reasonable sum. Both parties had agreed upon the terms of the decree and neither has evinced dissatisfaction with them. Modification for the purpose of fixing a definite sum is wholly unnecessary. Plaintiff’s theory is that defendant is in arrears in the payment of a judgment, the terms of which are satisfactory, and her purpose is to compel compliance with it to the extent of exacting payment which, pursuant to its provisions, she alleges to be due. The action is to collect a reasonable sum, and the decree does not exact compliance with more. Although most of the actions of a nature similar to the present one are actions brought to enforce maintenance of wife or child where the divorce has been obtained in foreign States and no provision in the decree has been made for maintenance and support (Laumeier v. Laumeier, 237 N. Y. 357; Miller v. Miller, 246 N. Y. 636), there seems to be no rule which, in the event of a divorce in this State and an award for alimony or for maintenance of a child, would limit the remedy to a modification of the divorce decree or a proceeding for contempt. In Turner v. Woolworth (221 N. Y. 425, 430) a wife had procured in this State a judgment for separation and back alimony. u The husband would not pay, and the wife was destitute. Her lawyer came to her rescue and, upon her promise of a lien, supplied money for her support.” In an action for services rendered and money loaned, the assignee of the wife’s attorney recovered for the advances made to support the wife. That action was maintainable, and we held that, to the extent of his advances, the attorney was subrogated to the remedy against the husband.

The rule is that an action brought by a divorced wife against her former husband to recover money spent for their child’s maintenance is brought for the benefit of the child (Laumeier v. Laumeier, 237 N. Y. 357, 364), but when a child has been adequately supported by one who maintained it without expectation of reimbursement, certainly a third party, even though she be the mother, can have no standing in an action brought by her. That the expense of the maintenance of the daughter of this plaintiff and defendant was discharged by plaintiff’s husband and not by her is abundantly proved. Mr. Swanton allowed his wife $1,500 a month for the support of the household, and out of this contribution plaintiff paid her daughter’s expenses. There is no evidence that she possessed a separate estate. In July, 1931, she wrote to defendant that “ eleven years of Mr. Swanton’s charity is enough, how can either of us keep any self respect by asking more from that quarter?” In view of her acquiescence for eleven years in defendant’s omission and of the fact that their daughter was voluntarily maintained by the stepfather and not by plaintiff, no right of plaintiff to this judgment is apparent. Neither is there any evidence of default by defendant in obeying the terms of the divorce decree, which provides that the amount necessary for the support of the daughter shall be left to his discretion. Since the stepfather gratuitously and without any evidence of expected reimbursement supported the child who had assumed his name, defendant was not bound to exercise discretion to the extent of offering additional support when it was already provided and no one asked him for it.

The judgments should be reversed and the complaint dismissed, with costs in all courts.

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

Judgments reversed, etc.


author: Crane, Ch. J.

text:
    In the Matter of Lew Morris Demolition Co., Inc., Respondent, against George F. Driscoll Company, Appellant.
    Argued March 2, 1937;
    decided March 16, 1937.

      Walter Jeffreys Carlin and Samson Merriam for appelant.
    The matter sought to be arbitrated is not within the provisions of the contract. (Matter of Marchant v. Mead-Morrison Mfg. Co., 252 N. Y. 284; Matter of Young v. Cresent Development Co., 240 N. Y. 244; Matter of Webster v. Van Allen, 217 App. Div. 219; Matter of Kelley, 240 N. Y. 74; Matter of King-Varick Corp., 129 Misc. Rep. 645; Matter of Berkowitz v. Arbib & Houlberg, 230 N. Y. 261; Matter of General S. I. Co., 200 App. Div. 786; Matter of Bachmann, Emmerich & Co., 204 App. Div. 282; Faber v. City of New York, 222 N. Y. 255; Matter of S. F. Co. v. Thompson-Starrett Co., 247 N. Y. 277; Corporation of Charles Town v. Ligon, 67 Fed. Rep. [2d] 238; Weeks v. Little, 15 Jones & S. 1; 89 N. Y. 566.)

      Sidney O. Raphael for respondent.
    The order directing arbitration was properly made. (Corporation of Charles Town v. Ligon, 67 Fed. Rep. [2d] 238; Matter of Marchant v. Mead-Morrison Mfg. Co., 252 N. Y. 284; Horgan v. City of New York, 160 N. Y. 516; Wilson & English Constr. Co. v. N. Y. C. R. R. Co., 240 App. Div. 479; Alanson v. Albany, 43 Barb. 33; Matter of Dauwdy v. Hartcup, [1885] 15 Q. B. Div. 431; Taylor v. Yielding, [1912] 56 L. J. 253.) The court properly directed the arbitration. (Matter of Wenger & Co. v. Proper S. H. Mills, 239 N. Y. 199; Matter of Buccini v. Paterno Constr. Co., 253 N. Y. 256; Siracusa v. 421-425 West 54th St. Corp., 237 N. Y. 572; Zimmerman v. Cohen, 236 N. Y. 15.)
   Crane, Ch. J.

The Lew Morris Demolition Co., Inc., petitioned for an order directing the arbitration to proceed between said company and George F. Driscoll Company in accordance with the contract between said companies dated the 11th day of April) 1935, and designating and appointing an arbiter. The order was granted and affirmed by the Appellate Division, two of the justices dissenting.

The petitioner was a subcontractor; the George F. Driscoll Company was the contractor. The contract between the two parties called for the wrecking of Public School No. 43, at the corner of One Hundred and Twenty-ninth street and Amsterdam avenue, in the city of New York. One clause of the contract referred to arbitration. It reads:

“ Arbitration

“Fifth. Should any dispute arise respecting the true construction or meaning of the drawings or specifications, the same shall bé decided by the Architect, Walter C. Martin, Board of Education, City of New York, whose decision shall be final and conclusive, but should any dispute arise respecting the true value of the extra work, or of the work omitted by the Subcontractor, the same shall be referred to and valued by two competent disinterested persons, one employed by the Contractor, and the other by the Subcontractor; these two shall have the power to select an umpire, and the decision of any two of the aforesaid persons shall be final and binding on all parties. Each party to pay half of the expense of the reference.”

Another referred to extra work, and is as follows:

“ Extra Work

Seventh. No work shall be considered as extra unless a written order has been obtained for the same from the Contractor and an express agreement in writing made as to the cost.”

The claim of the petitioner is for damages caused by the delay of the contractor in executing the main or principal contract with the Board of Education; in other words, the petitioner was caused a loss through the delay of the contractor in doing its part of the work. The subcontractor claimed that the delay was of such an extent that the cost to it of doing the wrecking work had increased beyond what was in the contemplation of the parties at the time the contract was made. Labor and material had increased in price, and the subcontractor could not do the Work as cheaply as it could have been done if the contractor had not breached its contract or caused unreasonable delay. The petition states that the difference arising between the parties is due to the failure of the George F. Driscoll Co. to fully and substantially perform the terms of its contract with the petitioner herein and also with the general contractor that exists with the Board of Education in that it has failed to execute the work in the number of working days allotted to it under the general contractor with the Board of Education, and as a result of the unwarranted delays occasioned by the failure to perform within the specified time, an increased cost of labor and a decreased price for the value of salvage that can be obtained from the property and cost of trucking increasing has brought about a material and substantial difference in the cost of performance to the petitioner.”

The agreement of arbitration covers two items only: one, any dispute arising respecting the true value of extra work; two, any differences arising regarding the true value of the work omitted by the subcontractor.

There was no extra work ordered, and there was no extra work done; neither was any of the work omitted by the subcontractor which caused a dispute. The damages, or loss, occasioned • by delays were not included in the agreement to arbitrate, were not part of the contract for arbitration. (Matter of Marchant v. Mead-Morrison Mfg. Co., 252 N. Y. 284, 299.) This court said: “ No one is under a duty to resort to these conventional tribunals, however helpful their processes, except to the extent that he has signified his willingness.”

The order of the Special Term Was unjustified, and it and the order of the Appellate Division affirming it should be reversed, and the application denied, with costs in all courts.

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

Orders reversed, etc.


author: O'Brien, J.

text:
    In the Matter of United Artists Corporation, Appellant and Respondent, against Frank J. Taylor, as Comptroller of the City of New York, Respondent and Appellant.
    Argued January 25, 1937;
    decided March 16, 1937.

      Frederick H. Wood, Edward C. Raftery, Thomas T.

      Cooke, T. Newman Lawler and George E. Ray for petitioner, appellant and respondent. The sublicensing of rights to exhibit copyrighted photoplays by a distributor to an exhibitor is not a sale of tangible personal property within the meaning of Local Law No. 20 (Local Laws, 1934, No. 21), as amended. (Jewell-LaSalle Co. v. Buck, 283 U. S. 202; Stephens v. Cady, 55 U. S. 528; Tiffany Productions, Inc., v. Dewing, 50 Fed. Rep. [2d] 911; Metro-Goldwyn-Mayer v. Bijou Theatre Corp., 3 Fed. Supp. 66; Harms v. Cohen, 279 Fed. Rep. 276; Herbert v. Stanley Co., 242 U. S. 591; Burgess Co. v. Ames, 359 Ill. 427; A. B. C. Electrotype Co. v. Ames, 4 N. E. Rep. [2d] 476; Adair v. Ames, 4 N. E. Rep. [2d] 481.) The words “ license to use or consume ” do not apply to a short-term loan or bailment of personal property. (Gould v. Gould, 245 U. S. 151; Bradley Supply Co. v. Ames, 359 Ill. 162.) The tax sought to be imposed constitutes an unlawful burden upon interstate commerce, in violation of the commerce clause of the Federal Constitution. (Binderup v. Pathe Exchange, 263 U. S. 291; United States v. Paramount-Famous-Lasky Corp., 34 Fed. Rep. [2d] 984; 282 U. S. 30; United States v. First National Pictures, 34 Fed. Rep. [2d] 815; 282 U. S. 44; Majestic Theatre Corp. v. United Artists, 43 Fed. Rep. [2d] 991; Fox Film Corp. v. Federal Trade Comm., 296 Fed. Rep. 353; Swift & Co. v. United States, 196 U. S. 375; Stafford v. Wallace, 258 U. S. 495; Chicago Board of Trade v. Olsen, 262 U. S. 1; Paramount Pictures Distributing Co. v. Henneford, 184 Wash. 376; State v. Paramount Publix Corp., 178 La. 818; Glass v. Hoblitzelle, 83 S. W. Rep. [2d] 796.) The tax sought to be imposed upon licenses of motion picture photoplays requiring exhibition in particular theatres outside the State of New York clearly constitutes an unlawful burden upon interstate commerce in violation of the commerce clause of the Federal Constitution. (Dozier v. Alabama, 218 U. S. 124; Rearick v. Pennsylvania, 203 U. S. 507; Pennsylvania R. R. Co. v. Sonman Shaft Coal Co., 242 U. S. 120; Pennsylvania R. R. Co. v. Clark Bros. Coal Mining Co., 238 U. S. 456; Dahnke-Walker Co. v. Bondurant, 257 U. S. 282; Stafford v. Wallace, 258 U. S. 495; United Shoe Machinery Co. v. United States, 258 U. S. 451; Spalding & Bros. v. Edwards, 262 U. S. 66; Federal Compress & Warehouse Co. v. McLean, 291 U. S. 17; Chassaniol v. City of Greenwood, 291 U. S. 584; Binderup v. Pathe Exchange, Inc., 263 U. S. 291; Paramount Pictures Distributing Co. v. Henneford, 184 Wash. 376.)

      Orrin G. Judd and Herbert A. Heerwagen for Allied Theatre Owners of New Jersey, Inc., amicus curiæ.

    The city of New York is forbidden by the express limitation of the enabling act to levy the present tax upon licenses with non-residents for exhibition outside the State. (Matter of Gates, 243 N. Y. 193; People ex rel. Mut. Trust Co. v. Miller, 177 N. Y. 51; Travelers Ins. Co. v. Padula Co., 224 N. Y. 397; Dozier v. Alabama, 218 U. S. 124; Rearick v. Pennsylvania, 203 U. S. 507.) A levy upon receipts from the exhibition of motion pictures in New Jersey would be an unconstitutional burden upon interstate commerce; the statute should be interpreted so as to avoid any such unconstitutional effect. (Reinecke v. Northern Trust Co., 278 U. S. 339; Lucas v. Alexander, 279 U. S. 573; Binderup v. Pathe Exchange, Inc., 2 U. S. 291; United States v. First National Pictures, Inc., 34 Fed. Rep. [2d] 815; Majestic Theatre Co. v. United Artists Corp., 43 Fed. Rep. [2d] 991; United States v. Paramount Famous Lasky Corp., 34 Fed. Rep. [2d[ 984; Fox Film Corp. v. Trumbull, 7 Fed. Rep. [2d] 715; Paramount Pictures Distributing Co. v. Henneford, 51 Pac. Rep. [2d] 385; State v. Paramount Publix Corp., 178 La. 818; Dahnke-Walker Co. v. Bondurant, 257 U. S. 282; Heyman v. Hays, 236 U. S. 178: United States v. Reading Co., 226 U. S. 324.)

      Harry Levine, William S. Savage and William Mallard for RKO Distributing Corporation, amicus curiæ.

    The city of New York has exceeded the authority granted it in and by the enabling act (Laws of 1934, ch. 873) in assessing the tax against the petitioner. (Binderup v. Pathe Exchange, Inc., 263 U. S. 291.) The city of New York may not levy a sales tax on receipts from licenses to exhibit films because such levy directly burdens interstate commerce and is in violation of the United States Constitution. (Binderup v. Pathe Exchange, Inc., 263 U. S. 291; Crew Levick Co. v. Pennsylvania, 245 U. S. 292; Cooney v. Mountain States Tel. & Tel. Co., 294 U. S. 384; State v. Paramount Publix Corp., 178 La. 818; Paramount Pictures Distributing Co. v. Henneford, 51 Pac. Rep. [2d] 385.)

      Oliver T. Cowan, Monroe Goldwater and Milton Small for Keith-Albee-Orpheum Corporation, amicus curiæ.

    The distributor and exhibitor are in the business of rendering a service not taxable under the Sales Tax Law. (Metro-Goldwyn-Mayer Dist. Corp. v. Bijou Theatre Co., 3 Fed. Supp. 66.)

      Paul Windels, Corporation Counsel (William C. Chanler, Oscar S. Cox, Robert Granville Burke, Frank J. Derrick and Edmund B. Hennefeld of counsel), for defendant, respondent and appellant.
    The transactions between the petitioner and the various exhibitors involving the license to use and the transfer of possession of positive film prints are taxable under Local Law No. 20 for 1934, as amended. (Brewster v. Gage, 280 U. S. 327; Matter of Armitage v. Board of Education, 122 Misc. Rep. 586; 210 App. Div. 812; 240 N. Y. 548; Binderup v. Pathe

      Exchange, 263 U. S. 291; Metro Goldwyn-Mayer Distributing Corp. v. Fisher, 10 Fed. Supp. 745; People ex rel. Walker Engraving Corp. v. Graves, 268 N. Y. 648; People ex rel. Foremost Studio, Inc. v. Graves, 246 App. Div. 130.) A tax upon a film rental for an exhibition within the State of New York is not an interference with interstate commerce. (East Ohio Gas Co. v. Tax Comm., 283 U. S. 465; Wiloil Corp. v. Pennsylvania, 294 U. S. 169; Monamotor Oil Co. v. Johnson, 292 U. S. 86; Minnesota v. Blasius, 290 U. S. 1; Edelman v. Boeing Air Transport, 289 U. S. 249; Nashville, C. & St. L. Ry. v. Wallace, 288 U. S. 249; Gregg Dyeing Co. v. Query, 286 U. S. 472; Packer Corp. v. Utah, 285 U. S. 105.) The transactions involving exhibitors outside the city are taxable. (Oliver Iron Co. v. Lord, 262 U. S. 172; Utah Power & Light Co. v. Pfost, 286 U. S. 165; Eastern Air Transport v. South Carolina Tax Comm., 285 U. S. 147; Chassaniol v. City of Greenwood, 291 U. S. 584; Federal Compress & Warehouse Co. v. McLean, 291 U. S. 17; Gulf Fisheries Co. v. McInerney, 276 U. S. 124 Lacoste v. Dept. of Conservation, 263 U. S. 545.)
   O'Brien, J.

The Comptroller of the city of New York, assuming to act pursuant to Local Law No. 20, adopted December 5, 1934 (published as Local Law No. 21, Local Laws of 1934, p. 143), as amended by Local Law No. 24, adopted December 28, 1934 (published as Local Law No. 25, Local Laws of 1934, p. 164), as authorized by chapter 873 of the Laws of 1934, assessed appellant United Artists Corporation the sum of $21,188.92 as a tax on sales between December 10, 1934, and May 31, 1935.

Appellant is a Delaware corporation authorized to transact business in this State, and its principal place of business is at 729 Seventh avenue, New York city. Its business is the distribution of motion picture films to exhibitors. It is not an agent of producers but is an independent contractor. It obtains licenses from producers to distribute and market photoplays to exhibitors within certain territories, and its revenue is derived from the exhibitors. Its contract with Twentieth Century Pictures, Inc., which is typical of all its contracts with producers, recites that appellant is engaged in distributing and marketing photoplays throughout the world. By that contract the producer agrees that the license for distribution granted to appellant includes the sole and exclusive right, license and privilege to exploit,- market and turn to account and cause to be distributed and exhibited all of the photoplays, consisting of two negative prints and a number of positive prints, not to exceed one hundred and fifty, included in that contract for a period of seven years. The exhibitors, with whom appellant, as distributor, contracts, pay appellant for the right to show the films, and appellant pays the producer a percentage, varying from seventy-five per cent to fifty per cent, of the moneys derived from the license to use the photoplays.

The transaction by which appellant acquires the right from the producer to obtain possession of and to distribute the films and to contract with exhibitors for their exhibition is not the subject of the tax imposed which appellant seeks to vacate. Probably the sale to this appellant in this State by the producer in California of films manufactured in that State and elsewhere outside New York, and their transportation to this State is included within the operation of interstate commerce. (Binderup v. Pathe Exchange, Inc., 263 U. S. 291.) After those positive and negative prints have reached New York they have come to rest here. No longer do they continue a part of interstate commerce any more than oranges grown in Florida, automobiles built in Michigan, or textiles spun in Massachusetts. A new intra-state transaction occurs when this appellant, as distributor in New York, who has acquired the right to possession of the films and the license to transfer possession of them for purposes of exhibition in this State, makes contracts in this State for marketing them here. The facts herein differ materially in principle from those in Binderup v. Pathe Exchange, Inc. (supra), upon which appellant places strong reliance. There the distributors in New York contracted with the exhibitor in Nebraska and delivered in Nebraska. In this case, as far as the Appellate Division has held the transaction taxable, the distributor in New York city contracts with the exhibitor in New York city for delivery in New York city. In so far as this appellant deals with exhibitors in New Jersey and other States, that phase of the case is governed by the Binderup case. Moreover, since those places are not included within the territory of the city of New York, neither the enabling act (Laws of 1934, ch. 873), nor Local Law No. 20 nor Local Law No. 24 constitutes authority for the imposition of a tax by the city of New York.

If these contracts between appellant and the exhibitors in New York city constitute a sale within the purview of chapter 873 of the Laws of 1934 and Local Law No. 20 of December 5, 1934, as amended by Local Law No. 24 of December 28, 1934, the transaction, so far as the delivery of the prints and the licensing of their exhibition is effected in the territory included within New York city, is taxable. Appellant’s contract with the producer provides that the distributor (appellant) purchases all the producer’s right to market positive sound prints of motion pictures, that appellant will use its best efforts to market them, that it agrees that all leases or licenses to use positive copies or copies of each of the producer’s photoplays shall be made separate and apart from the leases or sales of other motion pictures or photoplays, and used in no way to influence the license, lease or sale of other motion pictures or photoplays. The subject of the transaction between the producer and this appellant, which is the same subject as the transaction between appellant and the exhibitors in New York city, is a photoplay consisting of two negatives and of complete positive copies not to exceed one hundred and fifty.

Local Law No. 20, effective December 5, 1934, imposes a tax on the sale of tangible personal property and defines the term tangible personal property ” as corporeal personal property. This Local Law No. 20 was amended to take effect December 28, 1934, by Local Law No. 24. This amendment contains this definition: (e) The word ‘ sale ’ or selling ’ means any transfer of title or possession or both, exchange or barter, license to me or consume, conditional or otherwise, in any manner or by any means whatsoever for a consideration, or any agreement therefor * * (§ 1 [e].) The transaction which is the subject of the tax under review consists of the transfer by the distributor to the exhibitor of the possession of corporeal property in the form of positive and negative prints of photoplays with the license to use or exhibit them for a specified time. The license to exhibit without the transfer of possession would be valueless. Together they are one transaction and constitute a sale within the definition of Local Law No. 24. In so far as this sale originates and is consummated in New York city, it is subject to the tax. In so far as the transfer of possession of the prints and the license to exhibit them is effected in territory outside the city, then no tax is applicable. We hold that the Appellate Division is correct on both aspects of this case, and that the order should be affirmed.

The order should be affirmed, without costs.

Crane, Ch. J., Lehman, Loughran, Finch and Rippey, JJ., concur: Hubbs, J., taking no part.

Order affirmed.


text:
    George Leary et al., Appellants, v, The City of New York, Respondent.

      Argued January 19, 1937;
    decided March 16, 1937.

      Ferdinand I. Haber for appellants.
    Payment of the five installments of the assessment which was a lien of record on one Nassau property discharged that property from such lien and no further claim of the city of New York- for the assessment could subsequently attach to the property because it was not subject to the jurisdiction of the city of New York. (Toch v. City of New York, 141 Misc. Rep. 70; Buckhout v. City of New York, 176 N. Y. 363; Upland Realty Co. v. City of New York, 99 Misc. Rep. 264; People v. City of New York, 120 Misc. Rep. 247.) The legislative construction of the earfier boundary statute should be accepted. The fine established by the earfier statute was intended to be fixed and established in accordance with the description given in the later statute. (City of New York v. Village of Lawrence, 250 N. Y. 429; People ex rel. Champlin v. Gray, 185 N. Y. 196; People ex rel. Mutual Life Ins. Co. v. Board of Supervisors, 16 N. Y. 424; City of Oakland v. Oakland Water Front Co., 118 Cal. 160.) The boundary law of 1928 did not establish a new line but described and fixed an existing one. (Decker v. City of New York, 216 App. Div. 334; 245 N. Y. 515; Matter of Goldsmith, 227 App. Div. 669; Island Park Associates, Inc., v. O’Donohue Park Corp., 254 N. Y. 523; City of New York v. Village of Lawrence, 225 App. Div. 1.)

      Paul Windels, Corporation Counsel (Laurence J. Rittenband and Oscar S. Cox of counsel), for respondent.
    The assessment for local improvements was validly levied on plaintiffs’ property since the property was located in the county of Queens before the boundary law of 1928 (L. 1928, ch. 802) was passed changing the old boundary line. (City of New York v. Village of Lawrence, 250 N. Y. 429; Leary v. Village of Lawrence, 233 App. Div. 771.) The legislative declaration in chapter 802, Laws of 1928, that the boundary line fixed by the earlier statute is to be construed as being fixed and established in accordance with the description given in the later statute is not binding on the courts. (City of New York v. Village of Lawrence, 250 N. Y. 429; People ex rel. Mutual Life Ins. Co. v. Board of Supervisors, 16 N. Y. 424; People ex rel. McDonald v. Keeler, 99 N. Y. 463; People ex rel. Champlin v. Gray, 185 N. Y. 196; City of Oakland v. Oakland Water Front Co., 118 Cal. 160; People ex rel. James v. Gilon, 126 N. Y. 640; Matter of Cruger, 84 N. Y. 619; People ex rel. Architects’ Offices, Inc., v. Ormond, 201 App. Div. 787; 234 N. Y. 549; People ex rel. Weiser v. Tucker, 220 N. Y. 594; Matter of Munn, 165 N. Y. 149; People ex rel. Crane v. Hahlo, 228 N. Y. 309; 258 U. S. 142.) The city of New York did not lose its prior claim or lien on plaintiffs’ property after the boundary law was passed transferring plaintiffs’ property to the county of Nassau. (Buckhout v. City of New York, 176 N. Y. 363.)
   Hubbs, J.

By an amendment of the charter of the city of New York (Laws of 1901, ch. 466) the boundary line between the county of Queens, a part of the city of New York, and the county of Nassau was defined. Disputes arose as to the exact physical location on the ground of the line. By chapter 802 of the Laws of 1928 the Legislature established the line between the city and the county of Nassau with mathematical precision. It set out the line in detail by a series of courses with dimensions and directions. When that line was laid out on the ground the effect was to transfer and annex to the county of Nassau a strip of land about one mile long, varying in width from 100 to 400 feet. Prior thereto that strip of land had been supposed to be in Queens county, a part of the city of New York, and it was so alleged in the complaint. Appellants owned land partly upon that strip and partly in the city. Their land had been assessed by the city for local improvements by an assessment which became a lien upon October 25, 1927. The so-called Boundary Law ” (Laws of 1928, ch. 802) became effective on April 5, 1928, over five months after the assessment became a lien on the lands in question.

This action is to cancel such tax lien on the lands in question upon the ground that the tax lien constitutes an illegal cloud upon appellants’ title. Another question is also involved, which will be referred to later. The first question is whether prior to April 5, 1928, the date when the Boundary Law ” became effective, the strip of land in question was within Nassau county or within Queens county, a part of the city of New York. Upon that issue the appellants had the burden of proof. Heed must be given to the burden of proof, at least when other tests are lacking. In this action to establish ownership, petitioners must recover, if at all, on the strength of their own title.” (Shapleigh v. Mier, 299 U. S. 468, 475.)

It is presumed that the tax was properly and legally assessed. (People ex rel. Jamaica Water Supply Co. v. State Board of Tax Commissioners, 196 N. Y. 39; People ex rel. Postal Telegraph-Cable Co. v. State Board of Tax Commissioners, 224 N. Y. 167, 180.)

At the trial the plaintiffs rested upon the Boundary Law ” and did not introduce any evidence. The city introduced the city tax map, which shows the strip of land in question to be within Queens county and the city. It also introduced the record of another action in. which the same parties were plaintiffs in a suit against the village of Lawrence, wherein they asserted that prior to the enactment of the Boundary Law ” in 1928, the strip of land in question was located within the county of Queens and the city of New York. The introduction of the city map in evidence created a presumption in favor of the city’s contention that prior to the enactment of the “ Boundary Law ” the strip of land was within the city. The map was received in evidence by consent and plaintiffs’ attorney stipulated that it determined the line as defined by chapter 466 of the Laws of 1901. (Jones on The Law of Evidence, § 307.)

In that condition of the record the trial court decided in-favor of the city that the strip of land prior to April 5, 1928, was within the county of Queens and a part of the city, and that, therefore, the tax was properly assessed.

Appellants insist that such decision was erroneous because the Legislature recited in the act (Laws of 1928, ch. 802): “ It is hereby declared to have been the intention of the legislature of the state of New York in heretofore establishing the boundary line between the city- of New York and the town of Hempstead to fix and establish the same in accordance with the foregoing description.”

The foregoing description refers to the new line established by the statute. It is urged by appellants that the above declaration of the Legislature establishes that the line as defined in chapter 466 of the Laws of 1901, was intended to be the same line as established by chapter 802 of the Laws of 1928, and that the strip of land had in fact always been in Nassau county and never in the city of New York, and, therefore, that the assessment was void. We are unable to agree with such contention. In the case of City of New York v. Village of Lawrence (250 N. Y. 429), involving this same strip of land, we decided that the declaration of the Legislature was not binding on the courts. The opinion in that case indicates quite clearly that we understood that the Boundary Law ” did more than clarify the description of the line in question; that it constituted a new boundary line which had the effect of annexing to Nassau county the strip in question. In fact, the statute, referring to that strip of land, reads that the territory is hereby annexed to and shall be part of the village of Lawrence,” which village is within Nassau county. We are satisfied that the Special Term and the Appellate Division reached the right conclusion upon that branch of the case.

On May 20, 1932, by virtue of section 1019-a of the charter (L. 1915, ch. 598), the assessment on one of the lots in question was divided into ten annual installments. Appellants paid five installments covering the period from October 25, 1927, to October 25, 1931, inclusive. By section 1019-a, payment of installments due relieves the property assessed from the lien of the assessment until another installment falls due, when the lien automatically attaches again until that installment is paid. Appellants contend that as the land had become a part of Nassau county, the city lost all jurisdiction, and the lien which had been suspended could not again attach. The lien had attached prior to the enactment of the Boundary Law ” (April 5, 1928), and that lien survived the transfer of the land to Nassau county. The fact that the city by agreement suspended the lien does not prevent it from reasserting the lien upon failure to pay an installment. True it is that the city lost jurisdiction to assess the property after its transfer, but that fact does not prevent it from collecting a tax which constiuted a hen before the transfer. Arrangements made in regard to the lien in existence before the transfer was made, not involving the levying of a new tax or the making of a new assessment on property outside the city’s jurisdiction, did not have the effect of destroying the right of the city to collect the tax.

The judgment should be affirmed, with costs.

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

Judgment affirmed.


text:
    The People of the State of New York, Respondent, v. I. Edward Reiter, Appellant.
    Submitted January 27, 1937;
    decided March 16, 1937.

      Richard F. Weeks and Herman Weintraub for appellant.
    The absence of criminal intent is fatal to an affirmance of the judgment appealed from. (Curley v. United States, 130 Fed. Rep. 1; Beare v. Wright, 14 N. D. 26; Neibuhr v. Gage, 99 Minn. 149; State ex rel. Williams v. Purl, 228 Mo. 1; Caccioppoli v. Lemmo, 152 App. Div. 650; Marden v. Dorthy, 160 N. Y. 39; Matter of Barnard, 151 App. Div. 580; Matter of Erlanger, 145 Misc. Rep. 1.) Subdivision 2 of section 1820-a of the Penal Law must be given a more reasonable construction than the court below adopted. (People v. Marcus, 261 N. Y. 268; People v. Kresel, 243 App. Div. 137.)

      William Copeland Dodge, District Attorney (Lynn Boston of counsel), for respondent.
    In order to constitute a violation of subdivision 2, of section 1820-a, all that is required is a willful false certification. (Albany County Sav. Bank v. McCarty, 149 N. Y. 71; People v. Abraham, 16 App. Div. 58; People v. Abeel, 45 Misc. Rep. 86; 100 App. Div. 516; 182 N. Y. 415; Loaff v. Lawton, 14 Hun, 588; Marden v. Dorthy, 160 N. Y. 39; People v. Hayes, 70 Hun, 111; 140 N. Y. 484; Caccioppoli v. Lemmo, 152 App. Div. 650; People v. Marrin, 205 N. Y. 275; Matter of Barnard, 151 App. Div. 580; Matter of Gotthein, 153 App. Div. 779.)
   O’Brien, J.

The information alleges that defendant, as a notary public, fraudulently and deceitfully made a certificate upon a general release that Frances Wandruff personally appeared before him and acknowledged to him that she had executed the release but that in fact she did not appear before him, and did not acknowledge that she had signed the document. Defendant, who is a member of the bar, was convicted but sentence was suspended.

As a witness he admitted that he never met Frances Wandruff, did not know her signature and did not know whether she had actually signed the release but that he accepted the statements of Mrs. Wandruff’s husband and son that she had signed it. There is no proof that she did not sign it nor any proof of fraud or intentional deceptive practice by defendant. He did, however, violate his strict duty as a notary public and the District Attorney argues that, by virtue of subdivision 2 of section 1820-a of the Penal Law, his act constitutes a misdemeanor. This is the only question in the case.

The statute under which defendant was convicted provides : A notary public or commissioner of deeds, who in the exercise of the powers, or in the performance of the duties of such office shall practice any fraud or deceit, the punishment for which is not otherwise provided for by ¿Ms ad, shall be guilty of a misdemeanor.” At the close of the case, immediately before the suspension of sentence, the District Attorney frankly stated to the court: “He did not intend to do anything wrong. He had no criminal intention; never attempted to deceive.” For all that, his negligent act did have the effect of deceiving the party to whom the release was given. One reading the jurat could not fail to draw an inference which was contrary to the fact. Even though defendant intended no wrong and no injury resulted, his failure accurately to state the fact is not consistent with the strict obligation imposed upon a notary public. He intended to make the statement which he did make, but he believed that his want of accuracy was immaterial. On the facts of this case, his belief may be and probably is true. Nevertheless, since his act was, in fact, deceptive, it constitutes a_“ deceit, the punishment for which is not otherwise provided for ” by the Penal Law. If defendant had acted with dishonest intent he could have been prosecuted under other sections of the statute. Violation of subdivision 2 of section 1820-a is included among those forbidden acts concerning which no criminal intent or moral turpitude is necessarily involved. Misconduct by another attorney, exactly similar to that of this defendant, has been characterized by the Appellate Division as most serious and deserving severe censure but not disbarment. (Matter of Barnard, 151 App. Div. 580.)

The judgment should be affirmed.

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

Judgment affirmed.


text:
    John Cerasole, Respondent, v. Anna Egenberger et al., Defendants, and Central Hanover Bank and Trust Company, Appellant.
    Argued January 26, 1937;
    decided March 16, 1937.

      Francis S. Bensel and Charles B. McGroddy, Jr., for appellant.
    There was no evidence to sustain the finding that appellant promised to make the final advance, upon which the lienor could have relied. (Edwards v. Dooley, 120 N. Y. 540; Corklite Co. v. Rell Realty Corp., 249 N. Y. 1; Dudley v. Perkins, 235 N. Y. 448.) Appellant’s obligation to make the final payment ceased and terminated upon the filing of mechanics’ liens in excess of the amount of said payment. (Alyea v. Citizens’ Sav. Bank, 12 App. Div. 574; 162 N. Y. 597; McDermott v. Lawyers Mortgage Co., 232 N. Y. 336; Freeman v. Auld, 44 N. Y. 50; Kommel v. Herb-Gner Constr. Co., 256 N. Y. 333; Schafer v. Reilly, 50 N. Y. 61; Spicer v. First Nat. Bank, 55 App. Div. 172; Verity v. Sternberger, 62 App. Div. 112; Payne v. Burnham, 62 N. Y. 69; Eastman v. Shaw, 65 N. Y. 522; Claflin v. Boorum, 122 N. Y. 385; Atlantic Mortgage Co. v. Kramer Contrg. Co., 221 App. Div. 560; Schlitz v. Koch, 138 App. Div. 535.)

      Samuel Rochlin and Arthur C. Blatz for respondent.
    A constructive trust was properly impressed upon the balance of the building loan mortgage in the hands of the lender. (Beatty v. Guggenheim Exploration Co., 225 N. Y. 380; Anglo-American Sav. & Loan Assn. v. Campbell, 13 App. Cas. [D. C.] 581; Reynolds v. Ætna Life Ins. Co., 28 App. Div. 591; 160 N. Y. 635; Hubbell v. Henrickson, 175 N. Y. 175; Roberts v. Ely, 113 N. Y. 128; Fox Film Corp. v. Hirschman, 122 Misc. Rep. 354; 212 App. Div. 837.) Appellant having received what it bargained for, the balance of the building loan fund in its hands should, under the Lien Law (Cons. Laws, ch. 33), be made available to the mechanics’ lienors. (McDermott v. Lawyers Mortgage Co., 232 N. Y. 336; Lawrence v. Fox, 20 N. Y. 268; Seaver v. Ransom, 224 N. Y. 233; Glanzer v. Shepard, 233 N. Y. 236; Croker v. N. Y. Trust Co., 245 N. Y. 17; Greybar Electric Co. v. Seaboard Surety Co., 157 Misc. Rep. 275; Pennsylvania Steel Co. v. Title Guarantee & Trust Co., 193 N. Y. 37.) The agency of the mortgage company was clearly established at the trial. (Corklite Co. v. Rell Realty Corp., 249 N. Y. 1.)
   O’Brien, J.

In February, 1931, Anna Egenberger entered into a written agreement with C. and C. General Carpenter Contracting Corporation for the erection of a dwelling house for the sum of $12,000. On March 9, 1931, she executed a building loan agreement with defendant Central Hanover Bank and Trust Company, appellant herein, for a loan in the amount of $17,000, and delivered her bond and a mortgage for that amount. Her affidavit attached to the agreement, and executed June 10, 1931, is made pursuant to section 22 of the Lien Law (Cons. Law, eh. 33). The mortgage was recorded with the register of Westchester county, and the loan agreement was filed with the County Clerk in June, 1931. The loan agreement provides that, if any mechanics’ liens should be filed against the premises, the holder of the mortgage might retain or deposit with the County Clerk in behalf of the borrower a sum sufficient to discharge the lien. It also provides that the loan is to be advanced at such times and in such amounts as the lender may approve, and “ Eighth. In any of the following events the obligation on the part of the lender to make said loan or to make any further advances shall, if the lender so elects, cease and terminate, and the said mortgage debts shall become due and payable at the option of the lender or of the holder of the mortgage, anything therein or in said bond contained to the contrary notwithstanding, but the lender may make advances without becoming hable to make any other advances. 1. If the mortgage offered by the borrower shall not give the lender a lien for the indebtedness to be secured thereby on the premises above set.forth, satisfactory to the lender. 2. If the lender shall not approve of the payment called for because of some act, encumbrance or question arising after the making of the preceding payment. 3. If the borrower assign this contract or said advances or any interest therein, or if said premises be conveyed or encumbered in any way without the consent of the lender. * * * 8. If any materials, fixtures or articles used in the construction of the building or appurtenant thereto be not purchased by the owner of the land so that the ownership thereof will vest in said owner free from encumbrance on delivery at the premises * * *. Ninih. The holder of the mortgage referred to reserves the right to decrease the total amount to be loaned under this agreement.”

The bank made the first advance June 11, 1931, for $6,800, the second August 14, 1931, for $2,200, and the third on December 21, 1931, for $2,400. After these advances had been made a balance of $5,600 remained from the $17,000. During the course of construction, liens in excess of $5,600 were filed by numerous individuals and corporations who are defendants in this action. The bank refused to advance the balance of the building loan until all liens should be satisfied.

The building was completed and a certificate of occupancy was issued June 4, 1932. In November, 1932, defendant Hoac Corporation instituted an action to foreclose a second mortgage, which was subordinate to the mortgage given to secure the Hanover’s building loan, and the judgment in that action, which was entered July 12, 1933, wiped out all the liens. Under that judgment, the premises were conveyed subject to the building loan mortgage for $17,000.

This action is brought to foreclose plaintiff’s mechanic’s lien, which was filed June 16, 1932, for $933, and to adjust the equities among all the lienors and to compel the bank to pay the $5,600 into court for distribution among the lienors. The courts below have found the fact to be that the lienors received some payment for their work and materials out of the advancements made by the bank, and that they relied for further compensation upon the promise of the bank to make the final payment of $5,600. Judgment has been rendered for plaintiff on the theory that this balance of $5,600 in possession of the bank is subject to a constructive trust for the benefit of the lienors, and the bank has been directed to pay this balance into court for distribution among the lienors.

Although the building loan agreement provides that, in the event of incumbrance of the premises by liens or otherwise, the lender may decline to make further advances, and this agreement was on file in the office of the County Clerk, of which fact the plaintiff and other lienors had at least constructive notice, there is evidence that the Lawyers Mortgage Company, the reputed agent of the appellant CentralHanoverBank andTrust Company, assured at least two of the lienors, after many liens had been filed, that, if they continued to perform their work, the last payment would be made. If the lender, through a duly authorized agent, represented to lienors that the entire proceeds of the loan would be available for payment of labor and service, and the lienors acted upon that representation, and improved the premises which constitute the lender’s security, that part of the loan which had not yet been advanced ough in fairness and justice to be treated as a fund held by the lender under a constructive trust. That is the view taken by the courts below, and certainly is the equitable view. In the event of advancement of the entire $17,000, the lender has its mortgage for that sum, secured by property improved by the lienors, and the lienors will be compensated, in part at least, for their services and materials.

The question, then, is whether the Lawyers Mortgage Company was such an agent of the Central Hanover Bank and Trust Company as to possess authority, by its promises, which the court found were made, to bind the bank. The mortgage company received the application for the loan at its Mt. Vernon office. It handled all the three payments and inspected the work of construction; it made up the list of lienors and attended to the delivery of all checks. It did all these things through its employees, Williams and Christie. The closing of the building loan agreement and of the mortgage was arranged by the attorney, not of the bank, but of the mortgage company. Although a general agent cannot by his own statement prove his authority, the fact is significant, considered with all the other evidence, that Mr. Williams of the mortgage company testified that no one was then present representing the bank, but Q. Who acted for. them ? A. The Lawyers Mortgage Company is their agent, I presume.” Even without this testimony, which perhaps should have been struck out, the evidence throughout the case shows that the mortgage company was the agent -of the bank.

Much has been said in the briefs and on the oral argument in relation to the issue whether a lienor, who is not a party to a building loan agreement, can compel the lender to perform that agreement. Appellant relies upon Alyea v. Citizens Sav. Bank (12 App. Div. 574; affd. on opinion below, 162 N. Y. 597), while respondent urges that the principle enforced in the District of Columbia in Anglo-American Sav. & Loan Assn. v. Campbell (13 App. Cas. D. C. 581) is applicable. He also argues that this court, in Pennsylvania Steel Co. v. Title G. & T. Co. (193 N. Y. 37, 42), has inferentially overruled the Alyea case and approved the Campbell case. Appellant rejoins by citing McDermott, Inc., v. Lawyers Mortgage Co. (232 N. Y. 336), where doubts are cast upon the correctness of part of the opinion in the Pennsylvania Steel case. In view of the different statutory requirements in the District of Columbia and the amendments to our own Lien Law, none of those decisions seem to be squarely in point, and, unhampered by exact precedent, we are free to deal equitably with this case on its merits.

The judgment should be affirmed, with costs.

Crane, Ch. J., Lehman, Loitghran, Finch and Rippey, JJ., concur; Hobbs, J., taking no part.

Judgment affirmed.


author: Rippey, J.

text:
    Ernest J. Pirman et al., Appellants and Respondents, v. Harold T. Confer et al., Respondents and Appellants.
    Argued January 21, 1937;
    decided March 16, 1937.

      Joseph Rosch and John H. Barker for plaintiffs, appellants and respondents.
    The facts are before the Court of Appeals for review. (Civ. Prac. Act, § 589, subd. 2; York Mortgage Corp. v. Clotar Const. Corp., 254 N. Y. 128; McKee v. McKee, 267 N. Y. 96; Exchange Bakery & Restaurant, Inc., v. Rifkin, 245 N. Y. 260; Matter of Flagler, 248 N. Y. 415; Boyd v. Boyd, 252 N. Y. 422.) The open, notorious, uninterrupted and undisputed use of the road for the prescriptive period having been established, the presumption of a grant of a right of way becomes conclusive. (Ward v. Warren, 82 N. Y. 265; Nicholls v. Wentworth, 100 N. Y. 455; Hey v. Collman, 78 App. Div. 584; 180 N. Y. 560; Colburn v. Marsh, 68 Hun, 269; 144 N. Y. 657; Winne v. Winne, 95 App. Div. 48; Hammond v. Zehner, 21 N. Y. 118; Pearsall v. Westcott, 45 App. Div. 34; Niesz v. Spencer, 213 App. Div. 476; Nellis v. Countryman, 63 Misc. Rep. 564; Bushey v. Santiff, 86 Hun, 384; Concklin v. N. Y. C. & H. R. R. R. Co., 149 App. Div. 739; Mattes v. Frankel, 65 Hun, 203; 157 N. Y. 603.)

      John A. Slade for defendants, respondents and appellants.
    The physical description of the alleged road or highway as given by plaintiffs’ own witnesses fails to show a road or highway in point of fact. (Harriman v. Howe, 78 Hun, 280; 155 N. Y. 683; People ex rel. Cunningham v. Osborn, 84 Hun, 441; 155 N. Y. 685.) Plaintiffs have failed to show a public road or highway by prescription. (Harriman v. Howe, 78 Hun, 280; 155 N. Y. 683; Riley v. Brodie, 22 Misc. Rep. 374; People ex rel. Cunningham v. Osborn, 84 Hun, 441; 155 N. Y. 685; McCarthy v. L. S. & M. S. R. R., 76 N. Y. 592; Johnson v. City of Niagara Falls, 230 N. Y. 77; Ricketson v. Village of Saranac Lake, 73 Misc. Rep. 52; 151 App. Div. 911;
      Speir v. Town of Utrecht, 121 N. Y. 420; Fountaine v. Fuld & Hatch Knitting Co., 207 App. Div. 542; Hamilton v. Village of Owego, 42 App. Div. 312; 171 N. Y. 698.) The plaintiffs did not establish a private easement or right of way over the lands of the defendants. (Hamilton v. White, 5 N. Y. 9; Moore v. Day, 199 App. Div. 76; 235 N. Y. 554.) Plaintiffs failed to establish prescriptive rights to the use of defendants’ lands. (Moore v. Day, 199 App. Div. 76; 235 N. Y. 554; Sebring v. Fitzgerald, 142 Misc. Rep. 474; Van Overback v. Batsteer, 191 N. Y. Supp. 49; Bushey v. Santiff, 86 Hun, 384; Commonwealth Water Co. v. Brunner, 175 App. Div. 153; Prentice v. Geiger, 74 N. Y. 341.)
   Rippey, J.

Both parties appeal to this court, each from a portion of a judgment of the Appellate Division, third department, which reversed in part and affirmed in part a judgment of the Supreme Court for Warren county. The Appellate Division set aside findings of fact made by the trial court and made new findings. It is the duty of this court to review fhe facts found by the courts below (York Mortgage Corp. v. Clotar Construction Corp., 254 N. Y. 128), and to determine where the weight of the evidence lies (McKee v. McKee, 267 N. Y. 96, 100).

The parties here are the same as those in Confer v. Pirman (273 N. Y. 587), which was argued at the same time as this case, except that the position of the parties, as plaintiffs and defendants, is reversed. On October 23, 1850, Hougal Brown was the owner in fee of the southwest quarter of Great Lot 60 in Hyde township of the town of Warrensburg, Warren county, N. Y., in which is located Hutchins pond (now known as Forest lake), with the exception of a small portion of the lake which lies in the northwest quarter of Lot 60. In Confer v. Pirman, Confer and wife claimed to own the entire bed of Hutchins pond, and to have the right to the exclusive use of the waters thereof by virtue of a series of conveyances, all containing the same description, starting with a deed from Hougal Brown and wife to Linas Wells, dated March 24, 1858, and recorded May 17, 1858. By that deed, there was conveyed to Wells all of the southwest quarter of Great Lot 60 in Hyde township, Warren county, N. Y., excepting and reserving all that part thereof as was described in a deed from Hougal Brown and wife to Edmund Morehouse, duly recorded October 25th, 1850, in Warren County Clerk’s office in Book T of Deeds at page 75. The deed from Brown and wife to Morehouse passed title to all of the southwest quarter of Great Lot 60 lying on the east side of Hutchins pond and its outlet. It was held by the courts below in Confer v. Firman that the description in the deed from Brown to Morehouse carried title to the center line of the pond and outlet and that Confer’s title, running back to the deed from Brown to Wells, lay west of the centerJine thereof. The decisions of the lower courts have been unanimously affirmed by us, without opinion, on the authority of White v. Knickerbocker Ice Co. (254 N. Y. 152). In the case at bar, plaintiffs seek an injunction restraining interference by defendants with the unrestricted use by the former of the lake lying east of the center line thereof and of all of the southwest quarter of Lot 60 lying east of the lake. The issue of plaintiffs’ title has been here brought into question. The courts below have held that plaintiffs are the owners and entitled to the exclusive possession and use of all of the southerly half of Great Lot 60 lying east of the center line of the lake and southeast from the outlet to the lands adjoining.

In the case at bar, the trial court found and its findings were not changed by the Appellate Division, that, in addition to the properties owned by the respective parties in Lot 60 above referred to, the plaintiffs are and have been since prior to January 1, 1934, the owners in fee and in possession of the northwest quarter of Great Lot 59, the northeast quarter of Great Lot 60, the north half of the northwest quarter of lot 60, the southwest quarter of Great Lot 67 and the southeast quarter of Great Lot 67, containing about nine hundred acres, all in Hyde township, while the defendants owned and were in possession of the south one-half of the northwest quarter of Lot 60 and of that part of the southwest quarter of Lot 60 not owned by the plaintiffs; that during the spring of the year 1934, the plaintiffs, at a large expense, made improvements to their property of the character and to the end that it was and has since been used for the business of conducting a summer camp for girls; and that the defendants were using and occupying their premises as a camp for boys.

The evidence here satisfactorily establishes that defendant, Harold T. Confer, ordered plaintiffs’ guests at their camp who were bathing in the lake to leave; that defendants have ridden on horse back over bridle paths on plaintiffs’ property and taken their boy guests with them and thereby seriously interfered with such use of the bridal paths by the girl campers, that defendants have removed and destroyed and concealed signs on plaintiffs’ property and have erected signs thereon and have cut and have otherwise injured trees. It is also undisputed that the defendants erected barriers in a roadway, the defendants claiming that the roadway in question was a private road and that the barriers were erected upon their property.

The question remaining to be settled is the character of the roadway and the right to its use, and upon a settlement of that question depends, to some extent, the right of defendants to erect the barriers in question. The trial court made findings of fact, numbered 5 to 23, inclusive, which had to do with the roadway in question and barriers thereon. In the conclusions of law, 1 to 6, inclusive, the trial court held, among other things, that the roadway was a public highway on its easterly and westerly ends and that plaintiffs had acquired an easement in the parts connecting the east and west ends by prescription. The Appellate Division set these findings and conclusions of law aside and made four findings of its own.

It can serve no useful purpose here to outline in detail the testimony of the various witnesses at the trial or all of the evidence adduced. It is sufficient here to say that the findings of fact made by the trial court, numbered 5 to 23 inclusive, are not only sustained by the overwhelming weight of the evidence, but are, in some respects, based upon uncontradicted evidence or concessions, and that the four additional findings made by the Appellate Division are likewise sustained by the evidence. AH are necessary for the purpose of arriving at what we believe to be the correct conclusion in this case. Each party called an engineer or surveyor and each made a map of the premises owned by the parties. The trial court adopted the Coulter survey (Exhibit 3) as correctly showing the lot lines and the general physical layout of the premises. This survey was based upon the original field notes made at the time the township was laid out and follows closely a survey by a third party made in 1919, and is based upon well-established land marks and is undoubtedly correct. We also adopt it as a correct map of the premises.

It appears that the parties are owners of adjoining premises in wooded and mountainous country. Through the property of the defendants on the west is a public highway known as the Spruce Mountain road, which connected with the Warrensburg-Chestertown road, and to the east of plaintiffs’ properties is a public road known as Pucker street. Connecting these two public highways is a road or way which meanders through the properties of both parties and around the northerly end of Hutchins pond. It forms a short-cut across the mountains for general travel by those who may wish to pass between Pucker street and Spruce Mountain road. On its easterly end, where it connects with Pucker street, and on its westerly end, between Spruce Mountain road and Hutchins pond, it is improved and is a public road. The part connecting the improved ends is not a public road. This connecting roadway is well marked, has been generally used by the parties and their predecessors in title and by the public generally for a period of more than sixty years and has been traversed by teams, wagons, fire-fighting equipment of the forest rangers and by pedestrians. On occasions, predecessors in title of the parties hereto and neighbors have worked the road, but, except for the ends above referred to, it is not a laid-out or dedicated highway of legal width nor has it been taken charge of by the public authorities or treated or regarded by them as a public highway. Under such conditions, it is not a public highway. (Harriman v. Howe, 28 N. Y. Supp. 858; Spier v. Town of New Utrecht, 121 N. Y. 420; People v. Sutherland, 252 N. Y. 86.)

Plaintiffs do not claim any easement in the roadway by grant. As a matter of fact and law, plaintiffs acquired no easement by prescription. Under ordinary circumstances, an open, notorious, uninterrupted and undisputed use of a right of way is presumed to be adverse under claim of right and casts the burden upon the owner of the servient tenement to show that the user was by license (Hammond v. Zehner, 21 N. Y. 118; Colburn v. Marsh, 68 Hun, 269; affd., 144 N. Y. 657), but where the use is not inconsistent with the rights of the owner and where the use is in connection with the' use of the owner and the general public, in -the absence of some decisive act on the part of the claimants indicating a use separate and exclusive from the general use, that presumption does not apply. (Moore v. Day, 199 App. Div. 76; 235 N. Y. 554; Sebring v. Fitzgerald, 142 Misc. Rep. 474). “ Common use negatives the idea of a presumption in favor of an individual, and does not thereby establish a private way.” (Reid v. Garnett, 101 Va. 47, 49.)

The trial court found that plaintiffs and their predecessors in title used this roadway across defendants’ premises “ under a claim of right.” That expression is susceptible of a meaning not warranted by the facts. We do not understand this to mean that such use under any such “ claim of right ” was exclusive or adverse. The record presents no evidence of adverse or exclusive use by plaintiffs. On the contrary, the undisputed testimony shows that the use was neither adverse nor exclusive by the general public or by plaintiffs or their predecessors in title. While its use by the public generally was open, notorious and uninterrupted for many years both as a matter of convenience and, on occasion, necessity, the roadway between those portions on each end which was adopted and improved by the public authorities was used only by the permission and implied consent of the owners of the properties through which the roadway extended. Plaintiffs’ enjoyment was merely permissive without title either in law or equity. (Wiseman v. Lucksinger, 84 N. Y. 31; Moore v. Day, supra; Van Overbeek v. Batsleer 199 N. Y. Supp. 49; Angell & Durfee on The Law of Highways [2d ed., 1868], § 151.) Even though the general public may have acquired an easement in gross, a matter we do not decide, plaintiffs could not have succeeded to their rights. (Moore v. Day, supra.)

Shortly after the commencement of the action of Confer v. Pirman, Confer erected two barriers across the roadway. Based upon Coulter’s survey, which we have adopted, these barriers were placed upon plaintiffs’ land. Confer was unauthorized to erect the barriers.

The judgment of the Appellate Division and that of the Special Term should be modified so as to enjoin defendants from the use of plaintiffs’ property, and, as so modified, should be affirmed, with costs in this court and in the Appellate Division to the plaintiffs.

Grane, Ch. J., Lehman, O’Beien, Loughran and Finch, JJ., concur; Htjbbs, J., talcing no part.

Judgment accordingly.


text:
    Winifred D. Jackson, as Administratrix of the Estate of James L. Jackson, Deceased, Appellant, v. Brown & Kleinhenz, Inc., et al., Defendants, and Forbes Motor Agency, Inc., Respondent.
    Argued January 12, 1937;
    decided March 16, 1937.

      William J. Flynn and Harold J. Tillou for appellant.
    The verdict against the defendant-respondent is amply supported by the evidence. (Zuckerman v. Parton, 260 N. Y. 446; Plaumbo v. Ryan, 213 App. Div. 517; Jorgensen v. Jaeger, 257 N. Y. 171; Ramsey v. N. Y. C. R. R. Co.,
      269 N. Y. 219; Shuba v. Greendonner, 271 N. Y. 189; Ridgely v. Taylor & Co., 126 App. Div. 303.)

      Frank Gibbons and James F. Kelly for respondent.
    Under the agreement between defendant-respondent and' Brown & Kleinhenz, Inc., the latter became bailee of the property for the particular purpose of demonstrating it to prospective purchasers. When that defendant used it for any other purpose the act constituted a conversion of the property and rendered the bailee responsible for whatever damage occurred to it during the period of conversion. (Buchanan v. Smith, 10 Hun, 474; Collins v. Bennett, 46 N. Y. 490; Pease v. Smith, 61 N. Y. 477.) The act of conversion forbade any finding of fact to the effect that the use of the car, dining such period of conversion, was consented to. (Hammer v. Wilsey, 17 Wend. 91; Ball v. Liney, 48 N. Y. 6; Ford v. Williams, 24 N. Y. 359; Kerr v. Mount, 28 N. Y. 659.)
   Hubbs, J.

Plaintiff’s intestate was struck and killed by an automobile driven by the defendant Juan Lord. The automobile was owned by the respondent Forbes Motor Agency, Inc., of Olean, New York. Several months before the accident it was taken by the defendant Brown & Kleinhenz, Inc., of Nunda, New York, several miles distant from Olean, for the purpose of effecting a sale. The sale was not made, but it remained in the possession of Brown & Kleinhenz, Inc. There was testimony from which the jury might have found that Brown & Kleinhenz, Inc., had purchased it, that being the contention of respondent, but the finding of the jury that title remained in respondent is supported by evidence and is not in question on this appeal. The questions here involved are whether the defendant Juan Lord at the time of the accident Was driving the car with the consent, express or implied, of the defendant Brown & Kleinhenz, Inc., and, if so, whether the defendant Brown & Kleinhenz, Inc., had such right to use the car; that from the consent given by Brown & Kleinhenz, Inc., to Lord the jury might properly find an implied consent on the part of respondent.

The jury so found and the judgment entered upon such finding has been reversed by the Appellate Division upon the ground that the permission given by Brown & Kleinhenz, Inc., was limited to use of the car for a specific purpose, which permission was violated by Lord and upon the further ground that Brown & Kleinhenz, Inc., Was not the agent of respondent and that consent of the respondent as owner to the use of the car by Lord could not be implied from the facts proven.

We believe the Appellate Division has erred by adopting a view too narrow in the circumstances of the case and that a question of fact was presented upon both issues as to which the finding of the jury should not have been disturbed as a matter of law.

That the consent given to Lord by Brown & Kleinhenz, Inc., was of a general nature, not restricted to use of the car to go to “ the show,” is fairly supported by the evidence. Before the trial, Kleinhenz made a statement to the effect that Lord, on requesting permission to use the car on the night in question, “ didn’t say where he Was" going,” also that “ It was agreed between Mr. Brown and myself that Juan Lord, one of our employees, could drive this car back and forth to his home in Hunts. He had our permission to drive it on Sunday, December 31, and, while he didn’t tell us where he was going to use it, we felt that wherever he wanted to drive it it was all right, as he was a very careful driver. He never made any mention of wanting to purchase it.

On the trial both the making of the statement and its truth were admitted by Kleinhenz although on the trial he claimed Brown, his associate, gave the permission and Lord testified he asked to take a car to go “ to the show with ” but did not specify where. It appears that he had been given permission to use a car on previous occasions when he took it at night and brought it back in the morning. Moreover, on this particular occasion at eight-thirty or nine o’clock m the evening, Kleinhenz saw the car on the street in Nunda. In these circumstances, we believe a clear question of fact was presented. A similar question was presented in Nee v. Sloboda (244 App. Div. 729; affd., 270 N. Y. 571), where permission was given to defendant’s son to use the car to go to a dance at the high school ” and he used it to drive to New York city and from there to a place in Orange county, remote from the school and the defendant’s house.

Nor can it be said under all the facts that there was not some evidence to support the finding of the jury that the control of the car as given by respondent to defendant Brown & Kleinhenz, Inc., was of such a nature as to constitute implied consent that it be used in the circumstances in which it was used by Lord. Throughout the trial, the respondent sought to sustain its contention that defendant Brown & Kleinhenz, Inc., was the owner of the car. While the original bailment was for a specific purpose and while the jury might have, found that, as stated by the court below, the car was kept by defendant Brown & Kleinhenz, Inc., in the hope that it might be sold, respondent, in view of its contention that it understood there was a sale to Brown & Kleinhenz, Inc., and in view of the testimony that Forbes put no restrictions on its use, and despite the length of time it was retained by Brown & Kleinhenz, Inc., made no effort to find out who was using it, cannot now contend that the permission given was limited by the terms of the original bailment.

Particularly is this true in view of the further testimony by Forbes that he knew that dealers permitted their own cars to be used by employees for personal business. Although contending the car in question was the property of Brown & Kleinhenz, Inc., such an admission on his part is inconsistent with a claim that he had no belief that the particular car might be so used by an employee of Brown & Kleinhenz, Inc.

While the purpose and effect of section 59 of the Vehicle and Traffic Law (Cons. Laws, ch. 71) must be confined to those cases which fairly fall within the scope of its language, still, as to such cases, it must be given a construction which will result in a fulfillment of the purpose for which it was enacted, namely, to make the owner liable for negligence where the automobile is used in the business of such owner or otherwise, by any person legally using or operating the same with the permission, express or implied, of such owner.”

The entire control of the car was given to Brown & Kleinhenz, Inc. It being a corporation could not drive the car. The owner must have expected it would be driven by some person, officer, agent or employee of the bailee, and, under such conditions, as its officers might impose. Respondent having thus relinquished its immediate control over the automobile and having vested the control in another without limitation of authority, must not now be heard to question the finding that the consent given by Brown & Kleinhenz, Inc., to Lord was impliedly its consent.

The Appellate Division, having reversed on the law only, is assumed to have affirmed as to the facts.

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

Lotjghran, Finch and Bippey, JJ., concur; Crane, Ch. J., Lehman and O’Brien, JJ., dissent.

Judgment accordingly.