author: Bromley, J. Desmond, J.

text:
    The People of the State of New York, Respondent, v. Julio Ramirez Perez, Appellant.
    Reargued October 4, 1949;
    decided December 29, 1949.

      Rose Rothenberg, James D. C. Murray, Abraham J. Cellinoff and Joseph J. Celia for appellant.
    I. The confession was illegally extorted from defendant by force and threats, and its admission in evidence contravened section 395 of the Code of Criminal Procedure and the due process clauses of the State and Federal Constitutions. (Malinski v. New York, 324 U. S. 401; People v. Valletutti, 297 N. Y. 226; Ashcraft v. Tennessee, 322 U. S. 143; Haley v. Ohio, 332 U. S. 596; People v. Barbato, 254 N. Y. 170; People v. Weiner, 248 N. Y. 118; People v. Mummiani, 258 N. Y. 394.) II. Apart from the elements of force and threats, the prolonged secret inquisition to which defendant was subjected was a denial of the due process of law protected by the Fourteenth Amendment of the United States Constitution and rendered the confession inadmissible in evidence. (Haley v. Ohio, 332 U. S. 596; Ashcraft v. Tennessee, 322 U. S. 143.) III. It was prejudicial error for the trial court (a) to refuse defendant’s requested charge that the jury could not convict him if it found that the confession was involuntary, and (b) to leave the jury free to convict defendant of felony murder merely on the basis of his possession of some of the stolen property. (People v. Calbo, 218 N. Y. 283; People v. Taddio, 292 N. Y. 488; People v. Weiss, 290 N. Y. 160; People v. Bearden, 290 N. Y. 478.) IY. It was prejudicial error for the trial court to refuse to charge the jury that it could take into account any unnecessary delay in the arraignment of defendant in determining whether the confession was voluntary. (People v. Alex, 265 N. Y. 192; People v. Elmore, 277 N. Y. 397; People v. Malinski, 292 N. Y. 360, 324 U. S. 401; People v. Mummiani, 258 N. Y. 394; People v. John Doe (Bernoff), 261 App. Div. 504; Matter of Prestigiacomo, 234 App. Div. 300; People ex rel. La Tempa v. Hughes, 182 Misc. 1078.) Y. The confession was illegally extorted from defendant by force and threats. YI. Apart from the elements of force and threats, the prolonged secret police interrogation of defendant by relays of thirteen different police officers was a denial of due process and vitiated the confession. (Watts v. Indiana, 338 U. S. 49; Harris v. South Carolina, 338 U. S. 68; Turner v. Pennsylvania, 338 U. S. 62; People v. Mummiani, 258 N. Y. 394; People ex rel. La Tempa v. Hughes, 182 Misc. 1078; People v. McLaughlin, 291 N. Y. 480.)

      Frank S. Hogan, District Attorney (Whitman Knapp and Peyton H. Moss of counsel), for respondent.
    I. Defendant’s confession was voluntarily given and Ms guilt established beyond a reasonable doubt. II. The court’s refusals to charge were proper. (Wilson v. United States, 162 U. S. 613; Denny v. United States, 151 F. 2d 828, 327 U. S. 777; Lindsay v. People, 63 N. Y. 143; Williams v. Commonwealth, 29 Pa. 102; People v. Galbo, 218 N. Y. 283.) III. The confession was properly received in evidence. (Watts v. Indiana, 338 U. S. 49; Turner v. Pennsylvania, 338 U. S. 62; Harris v. South Carolina, 338 U. S. 68; People ex rel. Rao v. Adams, 296 N. Y. 231; People ex rel. Ditchik v. Sheriff of County of Kings, 171 Misc. 248, 256 App. Div. 1081; People ex rel. Nuccio v. Warden, 182 Misc. 654; Lisenba v. California, 314 U. S. 219; McNabb v. United States, 142 F. 2d 904, 323 U. S. 771.)
   Bromley, J.

Defendant has been sentenced to death, after conviction for the murder of Vera Lotito in New York City on March 30, 1948. The case was submitted to the jury upon the theory that the deed was done while defendant was engaged in committing a felony, either burglary or robbery.

At about 5:30 p.m. on Tuesday, March 30, 1948, Vera Lotito’s husband found her dead, but still warm, body lying on the floor of the living room of their walkup apartment on the third floor of 144 East 55th Street. The apartment had been burglarized. The body was lying face down, with legs tied at the ankles and hands bound behind the back by neckties. A necktie was also knotted around the throat and another tie was passed through the mouth and wrapped twice around the neck. An autopsy disclosed fifteen stab wounds which could have been caused by a screw driver, four of the wounds having penetrated the heart 'or other vital organs. The cause of the death was strangulation and stab wounds.

The cylindrical lock of the apartment door had been pried out. Among other things missing from the apartment were one large black and one tan suitcase, suits of men’s clothes, a fountain pen bearing the name of deceased’s husband, a billfold and a set of papers addressed to him, a bathroom scale, jewelry and clothing belonging to deceased, including her diamond wrist watch, her engagement and wedding rings — worn by her on the day of the killing— and a woman’s raccoon coat.

At the trial it was established that two of Mr. Lotito’s suits had been pawned by a young man with a Spanish accent in the afternoon of March 30th; and later on that day the same person had returned and pledged a lady’s diamond wrist watch. Friday, April 2d, at noon, defendant entered a pawnshop at 9 Columbus Avenue, laid Mrs. Lotito’s raccoon coat on the counter and talked to one of the clerk’s about pledging it or securing extra fur for lengthening it. Defendant became suspicious during the conversation and left the shop with the coat. The shop was being watched by a detective who followed defendant down the street. The latter was joined by his uncle, but they parted outside of a tenement house on Ninth Avenue. The detective followed defendant into the vestibule of that house, where he identified himself and attempted to arrest defendant. The detective testified that the defendant resisted and a fight ensued in which heavy blows and kicks were exchanged, the detective finally beating defendant around the head and face with a blackjack. The detective finally drew his gun and ordered defendant to the street. The latter did not obey, and at this point one Braver-man, a pawnbroker, and his son, a professional boxer, appeared and a further struggle ensued during which the boxer hit defendant and heaved him against the wall. Defendant was subdued and taken to the Bast 51st Street police station, where the raccoon coat was identified as belonging to deceased and the stolen fountain pen bearing the name of deceased’s husband was found on defendant.

Shortly after his arrest, on Friday, April 2d, defendant admitted that on the afternoon of the killing he had pledged other articles at various pawnshops in the neighborhood. The police thereupon recovered from those shops much of the stolen property. On the morning of April 3d, defendant’s uncle and cousin, Frank and Willie Perez, were questioned, and the police recovered from Frank the other missing suitcase with the rest of the stolen property that defendant had given to Frank upon either March 31st or April 1st, asking him to hide it. Several days later the police also recovered from Frank a screwdriver which had been wrapped in brown paper and left with him by defendant.

Following Ms arrest, defendant first explained Ms possession of deceased’s property immediately after the killing by saying that a stranger had given him the raccoon coat and the fountain pen to sell. When a police officer left to check the story, defendant withdrew it and stated that he had received the coat from a friend named Danny Miles, who had appeared at his apartment with two suitcases.

Late on the afternoon of the day of his arrest one Earl Cox, the superintendent of 144 East 55th Street, where the homicide was committed, was brought to the police station and defendant identified him as Danny Miles. During the evening of the day of his arrest defendant said he had met Cox in a Second Avenue barroom. About midnight, after having been taken to the barroom where the bartender stated that he had never before seen defendant, defendant admitted that the story about Cox was untrue. Defendant then claimed that Danny Miles was a person he had met near the Seamen’s Institute and that Miles lived at the YMCA on West 63rd Street. At about 4:30 a.m. on Saturday, April 3d, defendant was taken to the latter place, but no one recognized him nor could anyone identify Danny Miles as described by defendant. Defendant was then returned to the police station and later on that morning taken downtown near the Seamen’s Institute in a further fruitless search for Miles.

At noon on Saturday, April 3d, defendant was brought before a General Sessions Judge and committed to city prison as a material witness in default of $50,000 bail. At the hearing defendant raised the question of his right to counsel and at his request a lawyer representing the Legal Aid Society was assigned to look after his interests. After being told by the assistant district attorney that he was entitled to write or telephone to the Legal Aid Society, he was lodged in city prison about 12:15 p.m.

It is clear that for the period of twenty-four hours between the arrest and commitment as a material witness defendant was questioned almost continually by as many as thirteen detectives, exclusive of the assistant district attorney. At the trial he testified that he was beaten and brutally abused during the entire twenty-four hours that elapsed between his arrest and his commitment as a material witness. This testimony was denied by the accused police officers at the trial, and it appeared that defendant made no complaint of assault or abuse to the committing judge upon arraignment. He was given a medical examination upon his arrival at city prison which disclosed lacerations and bruises all of which could have been accounted for by his resistance at the time of arrest, the fact of which he readily admitted to the doctor. It is undisputed that he neither confessed nor made any self-incriminating statement during the twenty-four hours in question.

After his commitment as a material witness defendant was left in the city prison from Saturday noon until early Monday afternoon, April 5th. At the trial he testified that after he was lodged in city prison as a material witness he asked to see a Legal Aid Society lawyer but was informed by a police captain that he was being held incommunicado and was not allowed to write or receive letters or visitors and that the District Attorney’s office had forbidden all communications or visitors. The police captain referred to was not questioned" about and did not deny this accusation, although he was called as a witness by the defense and testified that a person held as a material wdtness was entitled to have counsel if he so desired. Defendant did not again ask for a lawyer and did not see one until after his arraignment upon a homicide charge on April 9th. During this interval of time he mingled freely with persons held on other than criminal charges in the special section of the prison reserved for that purpose, spoke almost daily with the assistant district attorney, who had also advised him of his right to counsel, and saw his wife and various friends and relatives who knew that he was in custody.

The questioning of defendant was resumed early Monday afternoon, April 5th. During the next four days, and until his arraignment on April 9th on a charge of first degree murder, the defendant was questioned repeatedly and finally confessed, giving a question and answer statement to an assistant district attorney from 11:37 p.m., April 8th to 1:56 a.mv April 9th. Out of the seventy-six hours which preceded this confession defendant was questioned intermittently for a total of thirty-two hours. He was brought from the prison to the District Attorney’s office in the early afternoon of Monday, April 5th, and his questioning lasted until 3:15 a.m., Tuesday, April 6th. During this period he abandoned his story about Danny Miles and, asserting that he was now7" going to tell the truth, accused his cousin Willie of the killing. He explained in detail how he accompanied Willie to 144 East 55th Street, waited outside while the latter robbed the apartment, and helped Willie carry the suitcases to defendant’s home. When questioned Willie denied the accusation.

Defendant remained in the prison until 2:30 p.m. on the afternoon of April 6th when he was again brought to the District Attorney’s office. Throughout the day he continued to accuse Willie of the killing and was returned to the prison about 11:00 p.m. Defendant was not questioned on Wednesday, April 7th. He was brought to the District Attorney’s office about 11:00 a.m. on Thursday, April 8th, and was again questioned. Early in the evening he was confronted with his second wife, who pleaded with him to tell the truth, and he thereafter broke down, wept and confessed. He first informally described the killing, giving an oral statement, and after adjournment for dinner a stenographer was secured and the taking of a formal statement was commenced at 11:37 p.m.

Defendant testified at the trial in lurid language to a continuous series of beatings by the police during much of the time which preceded his arraignment as a defendant. He testified that at the time of his confession his right eye was swollen shut. The assaults, he said, had taken place in the absence of the District Attorney, but he made no complaint because he feared reprisals. Defendant claimed, further, that Cox and his cousin Willie were also beaten, and that his false accusations against them were made in order to secure a respite for himself. Cox contradicted defendant’s story that the police beat and abused Cox and testified that defendant was not beaten or mistreated in any way in Cox’s presence.

Defendant asserted that his clothing was stripped from bim and never returned, and that all of the time he was in the custody of the police, except for two drinks of water, he was denied food, drink: and cigarettes. He identified the various detectives whom he accused of being perpetrators of the deeds. All such persons denied the accusations.

Finally defendant maintained that he had known nothing of the details of the crime until told them by a police officer, who acquainted him with the autopsy and rehearsed him in his confession in great detail, after which he recited it to the District Attorney. He further claimed that the trip to the scene of the crime and its re-enactment after his confession, were directed entirely by the District Attorney and the detectives, who decided upon the route and told him what to do. This was was all denied.

There are in the record four photographs of defendant taken shortly after the signing of his confession on the morning of April 9th. They show an unmarked, alert, neatly dressed and groomed man, and completely belie his assertion of an eye swollen shut and cuts and abrasions on his face. One of the photographs, taken by a newspaper photographer immediately after his confession was made; shows the defendant in a smiling and completely self-possessed pose.

Defendant took the stand in his own defense, admitted that he had in his possession articles belonging to the deceased and that he had pawned some of them, repudiated his confession, and denied that he had ever been in the deceased’s apartment or that he had killed her.

On this appeal, defendant contends that the confession was extorted by force and threats, and that its admission in evidence therefore violated section 395 of the Code of Criminal Procedure and the due process clauses of the State and Federal Constitutions. Whether the confession was voluntary or had been extorted by force was the subject of conflicting testimony. All of the evidence offered on that issue was admitted by the trial court, and the question was submitted to the jury with instructions which were proper. The jury has concluded that the confession was voluntary. Upon the record it is clear that they were justified in so finding (People v. Roach, 215 N. Y. 592). As Judge Desmond said in People v. Valletutti (297 N. Y. 226, 231), “ If there is a fair question of fact as to this [extortion of confession], the jury’s verdict is not interfered with.” In the Valletutti case there had been evidence of wounds suffered by the accused while in custody, reasonably attributable only to the assaults which, the defendant testified, had been committed upon him by the police. Those wounds were unexplained by the People. In the instant case, however, the People have an explanation for the physical condition of the defendant upon the first medical examination: the struggle at the time of defendant’s arrest. Moreover, the picture of defendant taken by a newspaper photographer immediately after the confession was evidence which in itself might have convinced the jury that there was nothing to defendant’s stories of assault and abuse.

Defendant also contends that the prolonged interrogation to which he had been subjected, apart from the controverted elements of force and violence, rendered his confession inadmissible and constituted a denial of due process of law under the Fourteenth Amendment of the Federal Constitution. We ordered reargument on this point so that we might consider the effect of three recent decisions of the Supreme Court of the United States (Watts v. Indiana, 338 U. S. 49; Turner v. Pennsylvania, 338 U. S. 62; Harris v. South Carolina, 338 U. S. 68). In those cases the Supreme Court reversed convictions for murder which were based upon confessions obtained while the defendants were detained by the police without judicial hearing and after they had been subjected to persistent police interrogation. In the Watts and Turner cases the detentions had violated statutes commanding the prompt arraignment of those detained by the police. In each case the cumulative effect of prolonged interrogation by relays of questioners, the defendant’s detention without preliminary hearing or advice as to his rights, and without opportunity to consult family, friend or counsel, compelled the conclusion that the confession had been extorted without due process of law.

Unless those decisions bar any lengthy questioning of one who possesses information about a crime, while he is in the custody of the prosecuting authorities, they are not controlling here, for the other elements of unlawful coercion there condemned are not found in this case. After his arrest Perez indicated that he knew, or might help to ascertain, the killer. There was ample reason for continued questioning and in view of defendant’s series of falsehoods and false clues there was ample reason for its prolongation. He was properly committed as a material witness after hearing and his subsequent detention was lawful. At that hearing, which took place within twenty-four hours of his arrest, defendant was informed of his right to counsel. Accepting his testimony that a prison official later denied him permission to communicate with a lawyer, we cannot say that he was barred legal assistance when he never renewed that request to the assistant district attorney or to members of his family whom he saw frequently in the following days. Under those circumstances we cannot accept defendant’s contention that his interrogation violated the due process clause.

The trial court refused defendant’s request to charge that the jury might not convict him if it found the confession involuntary. The court’s ruling rested upon the other evidence of defendant’s guilt, which it held sufficient to justify conviction of felony murder. That other evidence is the testimony that the body of the victim was found about 5:23 p.m. on March 30th; that when her husband left that morning the deceased wore her wedding and engagement rings; that, on the same afternoon, defendant had in his possession those rings and other property stolen from the apartment; that defendant possessed, and hid, a screw driver which could have caused the wounds and that he falsely accused Willie Perez of the crime. Apart from defendant’s confession, that evidence, considered in light of his series of inconsistent stories after arrest, would have justified a finding of guilt. Since this evidence was not completely assembled until shortly before the confession, this conclusion does not militate against our determination that there was no undue delay in arraignment.

Defendant also challenges the court’s refusal to charge that the jury might consider his detention in the station house and in the District Attorney’s office any unnecessary delay in arraignment, and all circumstances surrounding the taking of the confession, in determining whether it was voluntary. Since the court had covered all the circumstances relating to the confession save the fact of defendant’s detention and the interval between his arrest and arraignment on a murder charge, only those latter portions of the request present a question on this issue. If the jury might have found that defendant was held until April 9th in violation of section 165 of the Code of Criminal Procedure, the charge should have been given (People v. Mummiani, 258 N. Y. 394). Such an inference was not permissible. While the police may have suspected defendant of the murder, they did not have enough evidence to hold him as a defendant until shortly before he confessed. His detention during this period was lawful because, in light of his admitted knowledge of many of the circumstances surrounding the murder, his commitment as a material witness was valid.

Defendant was held as a witness within twenty-four hours of his apprehension with some of the stolen property, the intervening period having been consumed by questioning, recovering more property and checking defendant’s various stories. He made no confession until five and one-half days later and was promptly arraigned thereafter. Assuming that the twenty-four hours’ delay in taking defendant before the Court of General Sessions for commitment should be deemed unnecessary, that delay could not have been an efficient cause of the confession. It is suggested that the commitment as a material witness was a mere pretext for holding defendant. But the jury could not have so found. Certainly at the time of the commitment there was ample reason to hold him as a witness, and the police then did not have sufficient information to arraign him upon a murder charge. Although the trial court held that there was sufficient evidence to warrant conviction apart from the confession, much of that evidence was not known to the police at the time of the commitment, and it was not all known until shortly before the arraignment, because of the conflicting and false stories told by defendant up to the time of bis confession.

If the prosecuting authorities had enough information to arraign Perez for murder on April 3d, but procured his commitment as a material witness so as to continue an interrogation which would have been hampered by arraignment, that commitment should have been considered but a pretense to enable the surreptitious violation of the prompt arraignment statute. In that event defendant would have been entitled to the charge requested. Since the jury could not have found the commitment unjustified, or a mere pretense, on the information then in possession of the authorities, the court properly refused the charge.

The judgment of conviction should be affirmed.

Desmond, J.

(dissenting). Defendant, after his arrest, was held by the police for about twenty-four hours before he was committed to jail (in default of very high bail) as a material witness. Then he was held for five days more before he finally confessed, and only then was he arraigned before a Magistrate. It is admitted that, during those periods, he was questioned for hours at a time, by a great variety of policemen, and by an assistant district attorney. Defendant says that he was threatened and severely beaten during those interrogations, but all that was denied by the police. No one, however, denied defendant’s testimony that, after he had been ordered committed as a material witness, he was refused, Ity the police, permission to consult an attorney whose name had been given him by the Judge.

Despite all this, the Trial Judge in his charge never mentioned the right of defendant to a prompt arraignment on arrest, and never informed the jury that any illegal detention, if proven to the jury’s satisfaction, was a factor to be considered by the jury in coming to its decision as to whether or not defendant’s confession was voluntary. Worse than that, the trial court refused defense counsel’s request that the jury’s attention be called to section 165 of the Code of Criminal Procedure, which requires that a defendant must in all cases be taken before a magistrate without unnecessary delay, the court refusing also the associated request that the jury be told of its right, in determining the question as to voluntariness of confession, to consider defendant’s detention before confession and any unnecessary delay in his arraignment. By that failure to charge and those refusals to charge, the jury was left completely ignorant of the settled law that any illegal withholding of arraignment is a sufficient basis for the throwing out, by a jury, of a confession obtained during such illegal imprisonment, as involuntary.

Indeed, the Trial Judge, in denying the request above referred to, inquired of counsel, in the jury’s presence: According to the testimony in this case the defendant was arraigned almost immediately after he made his confession, wasn’t he? ” If it is now to be the law that the statutory requirement of arraignment promptly after arrest is satisfied by arraignment promptly after confession, then the police have acquired the right to question a citizen, without bringing him before a magistrate, for any length of time necessary to wring from him an acknowledgment of guilt. The statute itself, as well as the decisions of this court, from People v. Rogers (18 N. Y. 9) down to People v. Valletutti (297 N. Y. 226), is directly to the contrary of that.

Perhaps the trial court, by its question above quoted, meant to say or suggest that, since defendant was being held as a material witness, and since such holding was under a court order and therefore legal, he could be questioned at will until he should break down and admit the crime. It is strange doctrine that a material-witness commitment, intended only to guarantee the presence of a witness at the trial, takes away from the “ witness ” all protection against third-degree questioning, as a suspect, and allows the police to hold him incommunicado, and deny him access to an attorney already assigned to him by a court. If this simple device, of treating an arrested person as a “ material witness ”, legalizes any subsequent period of otherwise unlawful detention, it will indeed be a useful one for those who are impatient of the curbs of section 165.

This defendant was, as his own experienced counsel said in his summation speech, covered all over with the leprosy of crime ”, but it is a wretch like that who needs these law guaranties of which we so often boast. It will be a bad day when the police become the judges as to who is, and who is not, entitled to those ancient rights.

Of course, it is almost an absurdity and a contradiction in terms to say that a confession obtained after a week of close, hard questioning is “ voluntary ”. But it is the law of this State, despite sections 165 and 395 of the Code of Criminal Procedure, and section 1844 of the Penal Law, that the jury may hold to be voluntary,” admissions so obtained. Since delay and illegal detention do not in themselves invalidate extrajudicial admissions, the only protection left to a defendant who claims, as this defendant did, that he has been illegally held for the purpose of extorting a confession, is such a charge by the court as was requested here, and refused. Thus the charge here was plainly erroneous, and it should not be necessary to argue that the error was no slight or technical one (see Judge Lehman’s famous words in People v. Mummiani, 258 N. Y. 394, 399, 400).

Believing as we do that this major error of law requires a reversal, we do not comment on the other points raised by defendant.

The judgment should be reversed and a new trial ordered.

Lewis, Conway, Dye and Ftjld, JJ., concur with Bromley, J.; Desmond, J., dissents in opinion in which Lottghran, Ch. J., concurs.

Judgment of conviction affirmed. [See 300 N. Y. 647, 715.]


source: Caselaw Access Project

author: Desmond, J. Lewis, J.

license: Public Domain

text:
    The People of the State of New York, Respondent v. Lee H. Allen, Appellant.
    Argued October 21, 1949;
    decided December 29, 1949.

      M. Maurice Chacchia for appellant.
    I. The trial court erred in receiving in evidence as a dying declaration testimony of a statement allegedly made by decedent at a time when her condition was improved- and her attending physician thought she had a chance of recovery. (People v. Falletto, 202 N. Y. 494; People v. Sarsano, 212 N. Y. 231; People v. Wilcox, 245 N. Y. 404; People v. Ludkowitz, 266 N. Y. 233; People v. Bartelini, 285 N. Y. 433; People v. Mleczko, 298 N. Y. 153; People v. Smith, 245 App. Div. 69; People v. Miller, 270 App. Div. 107; Shepard v. United States, 290 U. S. 96.) II. The trial court erred in receiving accusatory statements made by decedent not in the presence of defendant and while defendant was in such a state of intoxication as not to comprehend the nature of such statements. (People v. Kennedy, 164 N. Y. 449; People v. Conrow, 200 N. Y. 356; People v. Koerner, 154 N. Y. 355.) III. Defendant has been illegally sentenced as a second offender because the alleged prior conviction was invalid and because a conviction under section 480 of the Penal Law does not constitute a prior conviction under section 1941 of the Penal Law. (People v. Buckley, 178 Misc. 545; People ex rel. Carollo v. Brophy, 294 N. Y. 540.)

      Thomas Groucher, District Attorney, for respondent.
    I. Decedent’s dying declaration was admissible and the trial court did not err in receiving it. (People v. Del Vermo, 192 N. Y. 470 People v. Ludkowitz, 266 N. Y. 233; People v. Falletto,
      202 N. Y. 494; People v. Sarzano, 212 N. Y. 231; People v. Bartelini, 285 N. Y. 433; People v. Stacy, 119 App. Div. 743, 192 N. Y. 577; People v. Grunzig, 1 Parker Cr. Rep. 299.) II. There was no error in receiving the statements made by decedent the night she received her wound. (McKee v. People, 36 N. Y. 113; Kelley v. People, 55 N. Y. 565; People v. Rutigliano, 261 N. Y. 103; Abbott on Criminal Trial Practice, § 597, p. 1117; Hochrieter v. People, 2 Abb. Ct. App. 363.)
   Desmond, J.

Sometime between 10:00 p.m. and midnight on March 20, 1947, in defendant’s small apartment in Geneva, N. Y., Anna Allen, defendant’s wife, suffered a deep abdominal wound from a kitchen knife. She died in a hospital at about 11:00 p.m. on March 25, 1947. Defendant, alone with his wife when she was cut, was charged with the fatal wounding and, indicted for murder, second degree, was convicted of manslaughter, first degree.

The proof at the trial may be considered under these five heads:

1. Testimony as to the condition of the wife when found in the apartment by a lodger, and when received at the hospital a little later.

2. Testimony that the wife, after she was hurt, told the lodger, and told policemen, in defendant’s presence, that Al ” (defendant) stabbed her ”.

3. Testimony of a similar accusation made by the wife at the hospital about twelve hours before her death, and received in evidence as a dying declaration.

4. Defendant’s statement to the police on the day after the wounding of his wife, in which he said that there had been a drinking bout that night, then a quarrel, that his wife had picked up the knife, whereupon he had tried to take it from her and that in the ensuing struggle she had somehow been stabbed.

5. Defendant’s testimony at the trial, differing in detail only from his pre-trial statement (No. 4 above).

Obviously, the judgment of conviction needs the support either of the accusatory statements, or of the so-called dying declaration, all of which were objected to on the trial as hearsay. It is our conclusion that those objections were well-founded, that none of the testimony, noted at Nos. 2 and 3 above, was admissible, and that, since there was no other incriminating proof, defendant should have had, and must now have, a dismissal of the indictment.

The accusatory statements were testified to by a lodger at the apartment, who came home from work an hour or so after the wounding, and by a police officer, summoned by the lodger. The lodger, arriving at the apartment, found the bleeding wife in the bedro.om, and defendant sitting in the kitchen five or six feet away.- The wife, according to the witness, said to the witness A1 stabbed me”; this witness’ testimony was self-contradictory to some extent, as to whether or not the husband immediately denied the accusation, but a fair interpretation of it is that he made a denial, but not at once. The police officer testified that, summoned to the place, he asked the lodger to ask Mrs. Allen who had stabbed her, and that the latter again answered “ Al ” and further identified “ Al ” as being her husband, this defendant. The officer then, as he testified, asked defendant why he had done it, but defendant gave an equivocal reply. Defendant was then arrested. This same police officer told the jury that defendant was so intoxicated that he was unable at that time, or later that night, to give any coherent account of what had happened. On the stand, defendant denied that he had heard his wife accuse him.

The rule is settled that such accusatory statements, not denied, may be admitted against the one accused, as admissions, but only when the accusation was “ fully known and fully understood ” by defendant (People v. Koerner, 154 N. Y. 355, 374), and when defendant was ‘‘ at full liberty to make answer thereto, and then only under such circumstances as would justify the inference of assent or acquiescence as to the truth of the statement by his remaining silent ” (People v. Conrow, 200 N. Y. 356, 367). The record here falls far short of meeting those tests. It is not certain that defendant even heard his "wife’s charges, he seems to have' denied guilt (to the lodger) soon afterwards, he was under no obligation to speak at all when under arrest or about to be arrested (People v. Rutigliano, 261 N. Y. 103, 107), and, most important, he was to some considerable degree intoxicated. His failure to deny, or to make immediate and positive denials, could not, under such circumstances, be treated as voluntary conduct equivalent to an admission of guilt. Such hearsay evidence is never to be admitted unless clearly within the rule (People v. Kennedy, 164 N. Y. 449, 457). It was, therefore, error to receive such testimony, and, in such a case as this, serious error.

Now as to the “ dying declaration ”. Mrs. Allen was taken to the hospital early in the morning of March 21, 1947, and lived until eleven o’clock in the evening of March 25th. Soon after admission to the hospital, she was given blood plasma: and the incision, which had penetrated the abdominal wall and perforated her intestine, was sewn up. Later she developed peritonitis and was for some time in an oxygen tent. During her four and a half days in the hospital she was unconscious at times. Her mother testified that, twelve hours before Mrs. Allen died, she told her mother, when the two were alone in the sick room, that she and her husband had an argument and he grabbed up the bread knife and stabbed her ”. We pass tüe point that this narration was somewhat equivocal, and need not necessarily have been meant to describe an intentional stabbing. We address ourselves to the question of whether it was a1 ‘ dying declaration ” within the strict rules allowing the use, on a trial, of that type of hearsay.

The People justify the trial court’s acceptance of this declaration, by pointing to testimony which, the People contend, meets all the preliminary requirements of the dying declaration rule. There was proof that Mrs. Allen had received the last rites of her church shortly after arriving at the hospital, that on the next day, reminded by a caller that her (the wife’s) birthday would come a month later, she replied that she “ wouldn’t live that long that she asked that the oxygen tent be removed because she was “ going to die anyway that on March 21st she told a relative that she did not think she would ever get well; and that on several occasions, down to the night of March 24th-25th, she told her nephew, who helped care for her, that she knew she was going to die, because all her relatives had come to see her. While in the hospital she never expressed any belief or hope of recovery but, on the other hand, no one, so far as appears, ever told her that her death was imminent, and, indeed, the attending physician, who said that at times she seemed likely to live and at others likely tó die, testified that on the very day she died and during the morning on which she made the “ dying declaration ” to her mother, he (the physician) thought she was going to get better.

There are writings innumerable stating and applying the rules for admission of dying declarations. All of them emphasize, in one form of words or another, the absolute and unvarying necessity for these two showings, at least: that the declarant was in extremis ” and was under a sense of impending death, without any hope of recovery ” (Richardson on Evidence [7th ed.], § 304). “ The principle upon which dying declarations are received in evidence is that the mind, impressed with the awful idea of approaching dissolution, acts under a sanction equally powerful with that which it is presumed to feel by a solemn appeal to Grod upon an oath. * * * Safety in receiving such declarations lies only in the fact that the declarant is so controlled by a belief that his death is certain and imminent that malice, hatred, passion and other feelings of like nature are overwhelmed and banished by it. The evidence should be clear that the declarations were made under a sense of impending death without any hope of recovery ” (People v. Sarzano, 212 N. Y. 231, 234-235). In People v. Ludkowitz (266 N. Y. 233, 239) this court said that the expressions quoted above from the 8ar-sano opinion {supra) mean that it must be shown that the deceased was, at the time, under the sense of impending death and without any hope ”. (As to the requirement that this be at the time ” of the statement, see, also, People v. Becker, 215 N. Y. 126, 145.) Competency of the declaration as evidence depends on the state of declarant’s mind when he made it ” (People v. Falletto, 202 N. Y. 494,502). Thus, two of the unyielding requirements are that the dying declaration must be the product of a considered certainty of death near at hand,' not a mere “ suspicion or conjecture ” (People v. Bartelini, 285 N. Y. 433,440), and that the statement must be made under, and result from, a present sense of that impending death. Here there was not shown any certainty on declarant’s part that she was about to die, and, more conspicuously, there was absent the slightest intimation that her statements to her mother, as to her husband’s stabbing her, were made under a sense of, or because of, or were controlled by, any such belief. Not only were her predictians of death made casually and not solemnly, but her accusation was not shown to have any near relation, in time or thought, to those earlier expressions as to nearness of death. What she said about her husband was disconnected from what she had said about her own prospects for life or death, and what she said about death could not have been based on more than suspicion or conjecture, since no one had told her she was going to die, and her physician thought she was recovering.

The settled rules as to dying declarations may not be broadened except by statute ” (People v. Becker, supra, 215 N. Y. at p. 146). It is indeed a broadening, and a dangerous one, that we are asked to agree to here.

Our conclusion is that there is in this record no admissible evidence of guilt. This conclusion makes it unnecessary to discuss appellant’s other arguments except to say that we agree with appellant — and the District Attorney’s commendable concession —• that the proceedings had against this defendant in the County Court of Ontario County on June 30, 1933, on another criminal charge, did not amount to a conviction.

The judgments should be reversed, and the indictment dismissed.

Lewis, J.

(concurring in part). My study of this record leaves me in disagreement with the decision about to be made. Without repeating evidence, which has been fairly outlined by Judge Desmond, I agree that, in the circumstances surrounding the accusatory statements made by the decedent to the witnesses Florence Callón and police sergeant Gigliotti, the admission of those statements in evidence constituted reversible error. (People v. Koerner, 154 N. Y. 355, 374; People v. Conrow, 200 N. Y. 356, 367; People v. Kennedy, 164 N. Y. 449, 456-457.)

I do not agree that the Trial Judge erred when — with instructions which I regard as appropriate — he submitted to the jury a dying declaration, made by the decedent twelve hours before her death. The record is in sharp contrast to that of the ordinary homicide where the victim’s dying declaration is prompted by stereotyped questions carefully designed to acquaint the declarant with the imminence' of death and to qualify the declaration within controlling rules of evidence. Here it is the unprompted character of decedent’s statements which reinforces credence in them. There is undisputed evidence that, without being interrogated, she repeatedly stated in simple words that she was 11 going to die ”. Those voluntary statements were not mere “ suspicion or conjecture ” that death was imminent (People v. Bartelini, 285 N. Y. 433, 440); nor do they record any doubt whatever that she sensed impending death and was without hope of recovery. The record proof of those statements thus served later to qualify her dying declaration for admission in evidence. (People v. Falletto, 202 N. Y. 494, 500; People v. Ludkowitz, 266 N. Y. 233, 238-243; People v. Sarzano, 212 N .Y. 231, 234-235; People v. Bel Vermo, 192 N. Y. 470, 487-488; People v. Kraft, 148 N. Y. 631, 633-636; People v. Smith, 104 N. Y. 491, 493-495.)

At least, in my opinion, it cannot be said as a matter of law that the Trial Judge erred when he submitted the decedent’s dying declaration to the jury with the following instructions:

“ You will recall that during the course of the trial evidence was given by several witnesses as to the physical condition of Anna Allen, the deceased, while she was in the hospital, the prosecution being desirous of introducing into evidence a statement by the deceased which is known as a dying declaration. ’

“ A‘ dying declaration ’ is a statement of material facts concerning the cause or circumstances of a homicide or killing, made by the victim under solemn conviction of impending death.

“ You will recall the testimony of Anna Allen’s mother, who told you what Anna Allen said were the circumstances of her injury. I hardly need point out to you that this is hearsay evidence, the mother coming into Court here and being sworn on the witness stand and telling you what her daughter told her at the hospital. The Court felt under all of the circumstances that that statement of Anna Allen, the deceased, made in the hospital, if you find that she made such a statement, should be submitted to you, and its weight and credibility is for your consideration.

There is a caution that goes with this for while dying declarations, when admitted in evidence, are entitled to be considered as having the weight of an oath, they are not of the same value and weight as direct evidence of the witness, subject to cross examination, and whose demeanor when on the stand is open to your observation.

11 If you believe that Anna Allen made the statement concerning how she received her injury as testified to by her mother, you will bear in mind that such evidence is a mere statement of what was said by Anna Allen while she was not under oath, made while she was lying on her hospital bed, and made while her body was no doubt in pain, her mind agitated and perhaps her memory shaken by the thought of impending death. Clearly, Anna Allen, the subject of this homicide, could not come here to testify because she is dead. So her unsworn statement of what happened to her is considered as the best evidence obtainable and is admitted for your consideration.

But again I say to you that such evidence when admitted is, under the law, not of the same value and weight as the testimony of a witness given in open Court under the sanction of an oath, but you may consider such evidence. That is, what her mother said Anna Allen said while she was in the hospital.”

It must be conceded that the instructions to the jury quoted above were an accurate statement of rulings by this court found in the decisions cited {supra) where the admissibility of dying declarations was considered. If in this case the admissibility of decedent’s dying declaration were the only problem presented I would vote to affirm the judgment of conviction. In view, however, of the erroneous receipt in evidence of accusatory statements by the decedent, I dissent from the view of á majority of the court that the indictment should be dismissed, and I vote for reversal and a new trial.

Lottghran, Oh. J., Dye and Fuld, JJ., concur with Desmond, J.; Lewis, J., concurs for reversal but votes to order a new trial in an opinion in which Conway and Bromley, JJ., concur.

Judgments reversed, etc.


author: Lewis, J.

text:
    Village of Lawrence, Respondent, v. Ruth I. Greenwood et al., Defendants, and Lawrence-Pinewood Corp. et al., Appellants.
    Argued November 17, 1949;
    decided December 29, 1949.

      J. Nathcm Helfat and Bernard A. Helfat for appellants.
    I. Consequential damages in condemnation of a part of a tract include damages to the remaining property resulting from use of the improvement. (Albany Northern R. R. Co. v. Lansing,
      16 Barb. 68; Matter of Utica, C. & S. V. R. R. Co., 56 Barb. 456; Matter of New York, L. & W. Ry. Co., 29 Hun 1; Matter of New York Central H. R. R. R. Co., 15 Hun 63; Newman v. Metropolitan Elevated Ry. Co., 118 N. Y. 618; Bohm v. Metropolitan Elevated Ry. Co., 129 N. Y. 576; South Buffalo Ry. Co. v. Kirkover, 86 App. Div. 55, 176 N. Y. 301; Town of Fallsburgh v. Silverman, 260 App. Div. 532, 286 N. Y. 594.) II. An owner, part of whose property is taken in condemnation, must be awarded as consequential damages, the loss resulting to the remainder from the use of the entire improvement, and is not to be limited to damages for use of the part taken from him. (Sparkill Realty Corp. v. State of New York, 254 App. Div. 78, 279 N. Y. 656; Matter of City of New York, 198 N. Y. 84; Matter of Utica, C. & S. V. R. R. Co., 56 Barb. 456; South Buffalo Ry. Co. v. Kirkover, 86 App. Div. 55, 176 N. Y. 301; Genesee Riv. R. R. Co. v. Boyington, 60 Misc. 416, 132 App. Div. 947; Campbell v. United States, 266 U. S. 368; Kucheman & Hinke v. C. C. & D. Ry. Co., 46 Iowa 366; Andrews v. Cox, Highway Comr., 129 Conn. 475.) III. Admission of testimony by the village expert, on his direct, of other sales, and its adoption by the commissioners are reversible errors. (Heiman v. Bishop, 272 N. Y. 83; Kingsland v. Mayor of City of N. Y., 60 Hun 489; Wilsker v. Gerli & Co., 182 App. Div. 787; Huntington v. Attrill, 118 N. Y. 365; Matter of Thompson, 127 N. Y. 463; Jamieson v. Kings County Elevated Ry. Co., 147 N. Y. 322; Robinson v. New York Elevated R. R. Co., 175 N. Y. 219; Matter of City of Neto York [Blackwell’s Is. Bridge], 118 App. Div. 272.)

      Edward S. Bentley for respondent.
    I. The commissioners’ award was supported by the weight of the evidence and was correctly sustained. No question of law arises in respect thereto. (Matter of City of New York [Fourth Ave.], 255 N. Y. 25; Matter of City of New York [Public Beach], 266 App. Div. 677, 291 N. Y. 715; Matter of City of New York [Exterior St.], 285 N. Y. 455; People ex rel. Lyon v. Nelson, 162 App. Div. 34, 229 N. Y. 618.) II. Appellant trustee was not entitled to recover damages, even if sustained, arising through the' opening of Frost Lane. (South Buffalo Ry. Co. v. Kirkover, 176 N. Y. 301; Matter of City of New York [Northern Blvd.], 255 App. Div. 1018; Matter of City of New York [Long

      Island R. R. Co.], 243 App. Div. 736; People ex rel. City of New York v. Sandrock Realty Co., 149 App. Div. 651, 207 N. Y. 771; Adamo v. State of New York, 235 App. Div. 12; Matter of New York Municipal Ry. Corp. v. Weber, 226 N. Y. 70; Village of Lawrence v. Leary, 243 App. Div. 800, 268 N. Y. 728.) III. The commissioners committed no error in receiving evidence of sales of other parcels. (Court of Claims Act, § 16; Administrative Code of City of New York, § B15-16.0; Tax Law, § 8; Administrative Code of City of New York, § 155b-1.0, subd. b; Public Housing Law, § 125, subd. 4; Matter of City of New York [School Site], 222 App. Div. 554, 250 N. Y. 588; Brooklyn Trust Co. v. Ess Ess Realty Co., 273 App. Div. 775; People ex rel. Parklin Operating Corp. v. Miller, 287 N. Y. 126; People ex rel. Emigrant Ind. Sav. Bank v. Miller, 269 App. Div. 269; Matter of Thompson, 127 N. Y. 463; Robinson v. New York Elevated R. R. Co., 175 N. Y. 219; Heiman v. Bishop, 272 N. Y. 83; Matter of Staten Island R. T. Co., 47 Hun 396.)
   Lewis, J.

This is a condemnation proceeding incidental to the opening as a public street of Frost Lane, formerly a private way in the village of Lawrence, Nassau County.

For many years Frost Lane was a private road extending from Broadway northerly a distance of 481 feet to its dead end at a point 226.60 feet south of Central Avenue. The purpose of the street-opening project was to connect Broadway with the village business district located along Central Avenue — the next parallel street to the north. To accomplish that end the village board instituted this proceeding for the acquisition of all lands lying within Frost Lane, owned by the nonappealing defendants, and three additional parcels of outlying land. Of those three outlying parcels we are concerned upon this appeal with only two.

Formerly Frost Lane for its entire length of 481 feet extended along the east line of a 3-acre plot of land constituting an extensive residence property owned by an estate represented by the appellant Gottesman. No land was taken from the Gottesman property by the present proceeding except a small triangular parcel located at the southerly end of Frost Lane, having a frontage of 20 feet on Broadway and a depth along Frost Lane of 140 feet.

The second parcel of land taken was owned by the appellant Lawrence-Pinewood Corp.— a corporation of which the appellant Gottesman is the sole stockholder. This second parcel has a frontage of 50 feet on the southerly side of Central Avenue and a depth of 226.60 feet extending south to a point where it meets the northerly or dead end of former Frost Lane.

At County Court an award by the commissioners of appraisal to the appellant Gottesman in the amount of $6,010 was confirmed. That award included $1,050 for the taking of the triangular parcel mentioned above and — incidental to such taking — four items totaling $4,960 which covered allowances for trees, shrubs and fencing removed and the cost of relocating gateposts and a short segment of an entrance driveway.

County Court also confirmed an award of $11,287 to the defendant-appellant Lawrence-Pinewood Corp. in payment for the parcel of land having a frontage on Central Avenue and extending southerly to the dead end of former Frost Lane.

Upon separate appeals to the Appellate Division by the defendants Gottesman and Lawrence-Pinewood Corp., the order of County Court was unanimously affirmed. The case comes to us, by our leave, upon a single notice of appeal by the appellants Gottesman and Lawrence-Pinewood Corp.

The appellants do not question the items which in total comprise the sum of $6,010 awarded in connection with the taking of the small triangle of land from the Gottesman property. However, on that branch of the case the appellants assert that the commissioners of appraisal erred by failing to award the owners of that property substantial consequential damages due, according to their claim, to a loss of privacy caused by changing Frost Lane from its former character as a dead-end, private way into a public thoroughfare. As, to that item of alleged damage the record discloses that after viewing the Gottesman property and receiving evidence offered in support of and opposed to the claim for consequential damages the commissioners included in their report the statement:

“ We further report that in making the determination as hereinabove stated, we were mindful of the general principles which govern the making of awards under the Condemnation Law; that claimants are entitled to just compensation for the land taken from them and that the Village of Lawrence is required to pay no more than the fair and reasonable market value on the date of the taking; that where part of a larger tract of land is taken, a claimant is entitled to consequential damages, if any caused to such residue by reason of the taking.

‘ ‘ With respect to Parcel 0 [the triangle of land at intersection of Broadway and Frost Lane], we found that the claimant did not sustain any consequential damages to the remainder of the property owned by the claimant, The Gottesman Trust, as a result of the taking of said Parcel * * * .” (Emphasis supplied.)

Insofar as that excerpt from the commissioners’ report contains a statement of the law which governed their determination of appellants’ claim for consequential damages, we think it accords with applicable rulings by this court. (South Buffalo Ry. Co. v. Kirkover, 176 N. Y. 301; Town of Fallsburg v. Silverman, 260 App. Div. 532, 533, affd. 286 N. Y. 594; Matter of City of New York [East Riv. Drive], 264 App. Div. 555, 560, affd. 298 N. Y. 843.) Insofar as the report by the commissioners is a factual determination of damages suffered by the Gottesman property due to the taking of the small triangle of land and any consequential damages resulting therefrom, the order of the Appellate Division affirming the confirmatory order of County Court is not within our power to review. (N. Y. Const., art. VI, § 7.)

We come then to the problem which prompted us to grant leave to appeal. That problem involves an evidentiary ruling made by the commissioners during their receipt of evidence bearing upon damages incurred by the appellant Lawrence-Pinewood Corp. by the taking of its lot fronting on Central Avenue. By that ruling there came into the record, over the appellants’ objection and exception, testimony by an expert called by the village who, on direct examination, stated the purchase price paid on two sales of comparable property in the neighborhood. The challenged testimony is not criticized as referable to sales too remote in time or involving property too remote in location; nor is it argued that the two sales involved property not fairly comparable to the subject lot. Indeed, the two sales to which the testimony referred involved lots which were vacant — as was' the Lawrence-Pinewood Corp. lot — one of which was located 50 feet away from the subject lot and was sold two and one-half years prior to the appropriation date. The other lot was slightly more remote but only 350 feet away from the appellants’ lot and was sold within three and one-half months of the appropriation date.

The objection interposed by the appellants on the hearing and now urged upon this appeal is that an expert witness called for the purpose of proving value may not testify on direct-ex animation as to sales prices of other comparable property in the neighborhood because, we are told, such evidence presents collateral issues involving a variety of considerations. We are mindful that such was the rule — and such was the reason given for that rule — in Robinson v. New York Elevated R. R. Co. (175 N. Y. 219, 222). (See, also, Jamieson v. Kings County Elevated Ry. Co., 147 N. Y. 322, 325; Matter of Thompson, 127 N. Y. 463, 468-469; Huntington v. Attrill, 118 N. Y. 365, 378, 379.)

We note, however, that adherence to the Robinson case rule {supra), now invoked by the appellants, has not been consistently maintained. Legislatively, a definite trend is discernible toward permitting proof of value by direct evidence of sales of comparable property in the neighborhood. (See Court of Claims Act, § 16; Public Housing Law, § 125, subd. 4; Tax Law, § 293; Village Law, § 318-a; Decedent Estate Law, § 122; Debtor and Creditor Law, § 24; Administrative Code of City of New York, § B15-16.0.) A like trend judicially, within our own jurisdiction, is also discernible. . (See Heiman v. Bishop, 272 N. Y. 83, 88; Matter of Board of Water Supply of City of N. Y., 277 N. Y. 452, 457-459; Matter of City of New York [Newtown Creek], 284 N. Y. 493, 498, 501; People ex rel. Parklin Operating Corp. v. Miller, 287 N. Y. 126, 129; also cases in foreign jurisdictions collated in 2 Wigmore on Evidence [3d ed.], § 463, pp. 503-512; Orgel on "Valuation under Eminent Domain, §§ 135, 139-148; “ The Unrealistic Buie Excluding Testimony as to Comparable Sales in Condemnation ” by John E. Egan, 66 Beport of New York State Bar Assn., p. 232 et seq.).

We have considered the implications fairly to be drawn from those legislative and judicial trends away from the Robinson case rule {supra), in the light of the reason given for that ruling. That reason was not the irrelevancy of testimony as to sales of comparable property but rather — as said in the opinion at page 222 —11 * * * to permit evidence of the rental or fee value of other premises would raise in each case a collateral issue to be tried.”

We no longer adhere to the rule which was decisive in the Robinson case (supra). Although conditions prevalent during the cluttered era of the elevated railroad litigation — when the statement last quoted above was written —■ may have supplied the reason for the ruling then made, we know of no conditions affecting the trial of cases today which warrant the exclusion of relevant testimony in favor of trial expediency. Upon this problem the terse comment by Judge Holmes, as he then was, is apposite — “ * * * so far as the introduction of collateral issues goes, that objection is a purely practical one, a concession to the shortness of life.” (Reeve v. Dennett, 145 Mass. 23, 28.)

Value, in a commercial sense, is the money estimate of marketable property. Where, as here, the inquiry goes to the market value of a parcel of vacant land taken by condemnation, we believe that evidence of sales of other comparable land in the vicinity, reasonably near in point of time to the appropriation date, may properly be received on direct examination as a criterion in evaluating the land in controversy. In short, proof of the price paid for one is relevant in arriving at the value of the other. “ ‘ A non-compulsory sale between a willing seller and buyer is ordinarily regarded as a good test or criterion * * * in determining the value of the land in controversy. The opinion of the buying public so expressed in a free market is what usually determines value.’ ” (Epstein v. Boston Housing Authority, 317 Mass. 297, 299.)

Instances there may be where proof of sales of comparable, property may prompt a line of inquiry which will develop collateral issues likely to confuse the fact-finders and prolong the trial. We regard such disadvantages, however, as more than compensated by the benefit to be gained by the receipt of such evidence subject to the exercise, by the tribunal which fixes value, of its discretionary power to draw the line of exclusion wherever confusion is created by collateral issues.

We are thus led to conclude that, in that branch of the case involving the award to the defendant Lawrence-Pinewood Corp., the admission, over defendants’ objection and exception, of evidence given on direct examination of the purchase prices paid on sales of other comparable parcels of land in the vicinity and within reasonable time from the appropriation date, Was not reversible error.

The order of the Appellate Division should be affirmed, with costs.

Loughban, Oh. J., Conway, Desmond, Dye, Fuld and Bromley, JJ., concur.

Order affirmed.


author: Lewis, J. Fttld, J.

text:
    Al Green, Appellant, v. David D. Doniger, a New York Corporation, Respondent.
    Argued November 22, 1949;
    decided December 29, 1949.

      Stanley M. Biesner and Jacob M. Goldenkoff for appellant.
    I. The allegations of the complaint and bill of particulars that the parties abandoned their written contracts and entered into new oral agreements must be accepted as true on a motion under rule 112 and every inference is in favor of the pleading. There is a distinction between abandonment and modification and it was error for the court below to find that the written contracts were modified. (Rodgers v. Rodgers, 235 N. Y. 408; Rockart v. City of Mount Vernon, 140 Misc. 270; Schwartzreich v. Bauman-Basch, Inc., 231 N. Y. 196.) II. The intentions of the parties is determined by the contracts entered into between them and not by the provisions of subdivision 1 of section 33-c of the Personal Property Law. The procedure provided by plaintiff and defendant for the abandonment of their written contracts indicates that they did not intend subdivision 1 of section 33-c to apply in case of an abandonment of these contracts. Defendant may not now insist that the statute is ' applicable since any failure to follow the contractual procedure resulted entirely from defendant’s own actions and statements. (Imperator Realty Co. v. Tull, 228 N. Y. 447; Thomson v. Poor, 147 N. Y. 402; Harris v. Shorall, 230 N. Y. 343.) III. Subdivision 1 of section 33-c of the Personal Property Law, by its terms, applies only to oral executory agreements. Plaintiff has fully performed the oral agreements upon which he bases his claim and it only remains for defendant to pay the amounts due. To dismiss the complaint not only contravenes the language of the statute but enables defendant to profit by its own wrong. (Harris v. Shorall, 230 N. Y. 343.)

      Milton E. Haft and Louis Niden for respondent.
    I. A written agreement with a provision to the effect that it cannot be changed except in writing is a requirement for coverage under subdivision 1 of section 33-c of the Personal Property Law. Each written agreement herein contains such a provision. The. statute directs that an oral change, modification or discharge shall be ineffective. Therefore a cause of action for the breach of such oral agreement is not maintainable and a dismissal was proper. II. It was the court’s inherent function to arrive at an independent conclusion of law based on uncontroverted facts.. The court committed no error in concluding from such facts that the oral agreement modified the written contract. (Red Robin Stores v. Rose, 84 N. Y. S. 2d 685; Willey v. Cameron, Michel & Co., 217 App. Div. 651; Siegel v. Goodman, 186 Misc. 108.) III. The statute applies to a discharge or modification of a written contract. Appellant contends that the statute does not apply to an abandonment of a contract. This lacks merit because the words abandonment and discharge are equivalent. (Schwartzreich v. Bauman-Basch, Inc., 231 N. Y. 196; Coletti v. Knox Hat Co., 252 N. Y. 468; Rodgers v. Rodgers, 235 N. Y. 408; McCreery v. Day, 119 N. Y. 1; Rockart v. City of Mount Vernon, 140 Misc. 270; Spirit v. Blach Diamond Furniture Works, 137 Misc. 398.) IV. Appellant contends that as his contract was executed, subdivision 1 of section 33-c is not applicable. This contention lacks merit because the oral contract was executory when made. V. Appellant contends that it was not the intent of the parties that subdivision 1 of section 33-c should apply to their agreement. This contention lacks merit.
   Lewis, J.

Upon this appeal our inquiry goes to the legal sufficiency of two of the several causes of action alleged in the complaint.

As the case comes to us on appeal from a judgment on the pleadings, we accept as true not only the material allegations of fact contained in the complaint (Nevins, Inc., v. Kasmach, 279 N. Y. 323, 325), but also those contained in the bill of particulars. (May Metropolitan Corp. v. May Oil Burner Corp., 290 N. Y. 260, 266-267; Richardson v. Gregory, 219 App. Div. 211, 212, affd. 245 N. Y. 540; Forsbrey v. Pulp & Paper Trading, Co., 273 App. Div. 770, affd. 297 N. Y. 984.)

Although the complaint states four causes of action we are concerned with only the third and fourth, which were dismissed at the Appellate Division as legally insufficient.

The plaintiff — a traveling salesman, who was employed from 1939 through 1946 by defendant corporation — brings this action to recover commissions and bonuses allegedly due for that period and unpaid. The two causes of action here involved are generally similar, except for the sum demanded, and except that the third cause pertains to the calendar year 1945, and the fourth cause pertains to the calendar year 1946. The facts material to each cause, as alleged in the complaint and amplified in the bill of particulars, are as follows:

With respect to the third cause of action, it is alleged that on January 1, 1945, the parties entered into an oral contract of employment whereby plaintiff was to work for one year for defendant exclusively, as a salesman in an assigned territory on a fixed salary and expense account. In addition the parties agreed upon a schedule of bonus payments, scaled according to the volume of sales made by plaintiff, the details of which need not concern us.

On March 7, 1945, on defendant’s insistence ” the parties entered into a written contract which superseded the oral contract for the calendar year 1945, and incorporated substantially the same terms of employment except that bonus provisions were excluded. Important to our inquiry is the fact that this written contract concludes with the provision: “ This constitutes the entire agreement and understanding between us and it may be terminated by either of us at any time upon thirty (30) days written notice to the other; and it shall not be considered modified, altered, changed or amended in any respect unless in writing and signed by both of us.” (Emphasis supplied.)

A related item in the bill of particulars gives us the following facts: ‘ ‘ Thereafter, and on or about April 7th, 1945, the plaintiff informed the defendant that he intended to terminate the said written contract of March 7th, 1945 pursuant to the termination clause contained therein. Thereupon defendant stated to plaintiff that it would be unnecessary for him to terminate the written contract pursuant to said clause and that the defendant would agree to abandon the contract of March 7th, 1945 and it would be of no force and effect and that plaintiff was to continue in the employ of the defendant under the terms and condition of the said oral contract of January 1st, 1945.” (Emphasis supplied.)

Under this arrangement the plaintiff continued in defendant’s employ through the year 1945.

The fourth cause of action alleges a written agreement made on January 2, 1946, for the calendar year 1946, containing the same terms as the prior written contract mentioned above. As in the prior written contract, the bonus provision was lacking. There was included, however, the same provision as to the exclusiveness of the agreement and the reservation by either party of the right to terminate the contract by giving a thirty-day written notice of such intention.

A related item in the bill of particulars states the following additional facts which bear upon the fourth cause of action: ‘ ‘ Thereafter and on or about the early part of February, 1946 the plaintiff informed the defendant that he intended to terminate the said written contract of January 2nd, 1946 pursuant to the termination clause contained therein. Thereupon defendant stated to plaintiff that it would be unnecessary for him to terminate said contract pursuant to said clause and that defendant would agree to abandon the contract of January 2nd, 1946 and said contract was abandoned and without force and effect and that plaintiff was to continue in the employ of the defendant * * (Emphasis supplied.) The terms of such continued employment — under the oral agreement — were to be substantially identical to those of the written contract except that a bonus provision, identical to that contained in the oral contract for the previous year, was added.

It is also alleged in the complaint that defendant paid plaintiff bonuses of $3,500 for 1945 and $2,500 for 1946 under the oral contracts. These amounts are deducted from the total bonuses allegedly due, in computing the sums demanded by way of relief.

The major issue for our determination is the effect of subdivision 1 of section 33-c of the Personal Property Law on plaintiff’s right to recover. That statute provides: “ 1. An executory agreement hereafter made shall be ineffective to change or modify, or to discharge in whole or in part, a written agreement or other written instrument hereafter executed which contains a provision to the effect that it cannot be changed orally, unless such executory agreement is in writing and signed by the party against whom enforcement of the change, modification or discharge is sought or by his agent.”

At Special Term the court held subdivision 1 of section 33-c not applicable on the ground that the gravamen of the third and fourth causes of action is abandonment, rather than modification or discharge, of the written contracts. The motion for their dismissal was accordingly denied.

The Appellate Division ruled that the transaction did not involve an abandonment but a mere change in the written contracts to the extent only of increasing plaintiff’s compensation for the same services. Upon this premise, it was held that the clause in the written contracts prohibiting oral change made subdivision 1 of section 33-c applicable and therefore that the third and fourth causes of action were not legally sufficient. Accordingly judgment on the pleadings was granted.

The phraseology of the written contracts here involved — which forbids oral modification, alteration, change or amendment — appears on first reading to be such as to invite the protection afforded by subdivision 1 of section 33-c. In other words there appears in each of the written contracts — to borrow from the statute — “a provision to the effect that it cannot be changed orally ”. The language of the statute suggests that, once its protection is invoked, there can be no oral, executory agreement to change or modify, or to discharge in whole or in part, the written contract. Accordingly, without more, subdivision 1 of section 33-c, if applicable to these contracts, would defeat this plaintiff’s right to recovery under the alleged oral agreements.

However, it will be noted that, in formulating procedure for their contractual relations, the parties set up a method of their own for terminating the written contracts, which we regard as inconsistent with the statute. Bach written contract specifically provides that “ * * * it may be terminated by either of us at any time upon thirty (30) days written notice to the other ” — and accordingly without the signature or, indeed, the consent of the other party. This provision is the keystone of plaintiff’s position, viz., that the parties did not intend subdivision 1 of section 33-c to apply, at least with respect to the discharge or termination of the written contracts, and that the parties were free to abandon them by mutual, oral consent.

The statutory clause, which when inserted in a contract subjects it to the control of subdivision 1 of section 33-c, is a simple clause prohibiting oral change. The effect of the statute, however, is broader than that. Not only is oral change prohibited, but there may be no change, modification, or discharge, in whole or in part, without a writing signed by the party to be charged. Whether the statute shall apply to a given contract depends upon the intent of the parties as expressed by the inclusion or exclusion, in some form, of the statutory clause prohibiting oral change. In the present case such a clause in the written contracts evidences the intent of the parties that the statute shall have at least a limited application. The scope of that application, however, appears to be intentionally limited to modifications or changes to the exclusion of discharges, since the parties have set up their own less formal procedure for discharge or termination.

It is fundamental that a contract must be construed according to the expressed intent of the parties. To hold as a matter of law — as the Appellate Division has done — that, despite their expressed intent to the contrary, the parties hereto could not abandon or terminate their contracts without conforming to subdivision 1 of section 33-c, would, in our view, involve too narrow a construction of that statute as applied to the contracts before us.

Having reached such a conclusion, we examine the termination provisions of those agreements and the actual transactions in the light of the general law of contracts. As we have seen, the contracts provided that they might be terminated by either party upon a thirty days’ written notice to the other. The bill of particulars — which we must accept at its face value — also alleges a statement by the defendant to plaintiff that “ * * * it would be unnecessary for him to terminate said contract pursuant to said clause * * *” and that, as between the parties, the contracts of 1945 and 1946 were “ * * * abandoned and without force and effect ”.

Whatever may be the requirements for the termination of the contract by one party — in this instance thirty days’ written notice — an abandonment of a contract not under seal by mutual consent has always been considered effective to discharge its obligations (Rodgers v. Rodgers, 235 N. Y. 408, 410), even when a new contract containing one or more of the same terms is simultaneously entered into. (Schwartzreich v. Bauman-Basch, Inc., 231 N. Y. 196, 205.) The problem of whether there was actually a waiver of the notice and a mutual consent to the abandonment involves questions of fact which should be tried before a jury.

The Appellate Division — proceeding upon the theory that there was actually an oral modification of each of the written contracts, rather than an abandonment — has taken the following position: “We cannot agree with plaintiff’s contention that the clause in the contracts here was not as broad in its coverage as the statute permits, or that the parties failed to provide against an oral discharge of the agreements because they did not employ the word £ discharge ’ in their language. We do not place our decision on that ground, however, and will assume that parties may by oral agreement abandon a written contract which incorporates a clause in accordance with the language of subdivision 1 of section 33-c of the Personal Property Law. The plain fact here, on the face of the bill of particulars, is that there was no abandonment of the written contracts in the sense that the engagement or enterprise was called off or abandoned, but in substance there was simply a change in the terms of an uninterrupted and continuing employment.” (Emphasis supplied.) (274 App. Div. 476, 479.)

Limited, as we are, to the allegations of the complaint and the bill of particulars, and lacking power to £ ‘ speculate in regard to matters not contained therein ” (Miller v. Vanderlip, 285 N. Y. 116, 120) we cannot agree with the italicized ruling last quoted above, which we regard as a finding on decisive facts, properly the subject of proof upon a trial.

It may well be that a factual basis exists for the following statement in the Appellate Division opinion (p. 479): ££ * * * The kind of oral arrangement which plaintiff alleges he made with defendant for successive years, setting aside written agreements just made and substituting oral agreements requiring nothing different or more from plaintiff but granting him increased compensation, makes his case suspect.”

However, we are convinced that such a conclusion as there drawn is also within the province of a jury, and not that of the courts on a motion to dismiss upon the pleadings.

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

Fttld, J.

(dissenting). The legislative purpose and design in enacting subdivision 1 of section 33-c of the Personal Property Law are frustrated, I very much fear, if we sustain the position taken by plaintiff-appellant.

The contract between the parties explicitly recited that it was the entire agreement between them and that ££ it shall not be considered modified, altered, changed or amended in any respect unless in writing ”. To hold that one party may accomplish a change in the amount of compensation to be paid to him under a written contract containing such a clause by the simple expedient and device of calling the change an abandonment, would be to annul the statute and render its operation nugatory. I believe that Presiding Justice Peck stated the matter exceedingly well when he wrote for a unanimous Appellate Division: ‘ The plain fact here, on the face of the bill of particulars, is that there was no abandonment of the written contracts * * *. Obviously the provision in the contracts prohibiting a change, alteration or amendment orally was intended to cover such a situation as is here presented, and the purpose and value of the statute would be nullified if it could be evaded by a play on words. The kind of oral arrangement which plaintiff alleges he made with defendant for successive years, setting aside written agreements just made and substituting oral agreements requiring nothing different or more from plaintiff but granting him increased compensation, makes his case suspect. The purpose of the statute is to enable parties to avoid the assertion of such claims and the prosecution of such actions by formally declaring that their written contract may not be orally changed.” (274 App. Div. 476, 479.)

I would affirm the order of the Appellate Division, with costs.

Lotjghran, Ch. J., Conway and Dye, JJ., concur with Lewis, J,; Fuld, J., dissents in opinion in which Desmond and Bromley, JJ., concur.

Judgment accordingly.


author: Desmond, J. Lewis and Conway, JJ.,

text:
    In the Matter of Martin C. Burke, Respondent, against Edgar Bromberger, as Chief City Magistrate of the City of New York, Appellant.
    Argued. November 30, 1949;
    decided December 29, 1949.

      JohnP. McGrath, Corporation Counsel (Henry J. Shields and Seymour B. Quel of counsel), for appellant.
    I. Since there was substantial evidence in support of the charges, the Appellate Division was not warranted in reversing the Chief Magistrate’s determination. (People ex rel. Brown v. Greene, 106 App. Div. 230, 184 N. Y. 565; People ex rel. Guiney v. Valentine, 274 N. Y. 331; Matter of Miller v. Kling, 291 N. Y. 65; Matter of Humph-

      rev v. State Ins. Fund, 298 N. Y. 327; Matter of Donahue v. Fletcher, 299 N. Y. 227.) II. The Appellate Division erred (1) in assuming that the charges specified acts committed in the performance of petitioner’s duties, and (2) in basing its determination that there was no substantial evidence in support of the charges upon considerations which should not properly enter into such determination, such as the fact of petitioner’s long service record and the testimony of character witnesses. (People ex rel. Wood v. Department of Health, 144 App. Div. 628, 202 N. Y. 610; People v. Ware, 29 Hun 473, 92 N. Y. 653; People v. Murphy, 135 N. Y. 450.)

      Edward S. Blackstone, Herman Katz and Stanley Ide Lacov for respondent.
    The evidence in support of dismissal of petitioner, is incredible, insubstantial, contrary to the overwhelming weight of evidence and is insufficient, and was so held by the Appellate Division. (Sharkey v. Thurston, 268 N. Y. 123; New York State Labor Relations Bd. v. Shattuck Co., 260 App. Div. 315; Matter of Case, 214 N. Y. 199.)
   Desmond, J.

Petitioner-respondent, a clerk in a New York City Magistrate’s Court, was dismissed from his position by the Chief Magistrate, after a long hearing, on charges that petitioner had struck up an improper relationship with, and had assaulted, a woman whom he had met when she came to the court seeking help or advice. Complainant testified before the Chief Magistrate that petitioner, a married man, told her he was a bachelor and called at her home a number of times, and assaulted her on one of those visits. She had brought a criminal charge of rape against him but that was later dismissed. She says he begged her to withdraw that criminal charge and, to induce her to do so, bought her a watch; he admits he did purchase a watch for her at about that time. He admits visiting her at her home, but for innocent reasons, and denied assaulting her. He admits writing her several letters which could be interpreted as arrangements for daytime visits to her apartment. The Chief Magistrate found him guilty and dismissed him from his position with the court.

The Appellate Division annulled the determination, finding no substantial evidence to support the charges, and rejecting the complainant’s testimony as “ unsupported, confused, contradictory and incredible ”. (275 Arm. Div. 762, 763.)

The charges were certainly substantial and the complainant’s story, believed by the hearing officer, constituted substantial, positive evidence thereof. There were contradictions and confusion, as to details, in that testimony, but it was not impossible or incredible, and in refusing to give any effect to it, the Appellate Division was substituting its views, on a' question of fact, for that of the Chief Magistrate who heard the witnesses. Nothing is better settled than that the court had no such power in such an article 78 proceeding (Matter of Miller v. Kling, 291 N. Y. 65; Matter of Humphrey v. State Ins. Fund, 298 N. Y. 327; People ex rel. Guiney v. Valentine, 274 N. Y. 331).

It may be that the complainant testified falsely. It is true that a number of judicial officers testified as to petitioner’s good character and long, satisfactory services. But all that was before the Chief Magistrate, whose responsibility it was to determine, since there was evidence substantial though contradicted, where the truth lay and whether the charges had been sustained.

The order of the Appellate Division should be reversed, and the determination of the Chief City Magistrate of the City of New York confirmed, without costs.

Lewis and Conway, JJ.,

dissent in the following memorandum : While we may not substitute our judgment for that of the removing officer, we can and must determine whether the person alleging incompetency or misconduct has sustained the burden of proof, under subdivision 1 of section 22 of the Civil Service Law, by “ substantial evidence ”. (Matter of Miller v. Kling, 291 N. Y. 65, 69.) In the instant case, in view of the confused, conflicting and self-contradictory testimony of the sole witness for appellant, the lack of corroboration of essential particulars of her story, and the undisputed evidence of petitioner’s good character and unblemished record of forty-two years in the public service, we cannot agree that the burden of proof was here sustained by substantial evidence. (Matter of O’Kelly v. Hill, 286 N. Y. 593.)

Loughran, Ch. J., Dye, Fuld and Bromley, JJ., concur with Desmond, J.; Lewis and Conway, JJ., dissent in memorandum.

Order reversed, etc.


author:
      Per Curiam.
     Desmond, J.

text:
    Nicholas J. Rogers, Respondent, v. Angelo Germano et al., Appellants.
    Argued November 22, 1949;
    decided December 29, 1949.

      Pasquale P. Yannella for appellants.
    I. Plaintiff’s predecessor in title, by the execution and delivery of the deed to defendants, extinguished the eight-foot right of way and reserved a four-foot right of way over the premises of defendants. (Blackman v. Striker, 142 N. Y. 555; Myers v. Bell Tel. Co., 83 App. Div. 623; Matter of Kearney v. Griffith, 187 Misc. 13; City Club of Auburn v. McGeer, 198 N. Y. 609; Beardslee v. New Berlin Light & Power Co., 207 N. Y. 34; Treadwell v. Inslee, 120 N. Y. 458; Grafton v. Moir, 130 N. Y. 465; Mitchell v. Reid, 192 N. Y. 255; People ex rel. Standard Gas Light Co. v. Cantor, 120 Misc. 183; Naccash v. Hildansid Realty Corp., 140 Misc. 730; Stoutenburg v. Stoutenburg, 176 Misc. 430; Cartwright v. Maplesden, 53 N. Y. 622; Snell v. Levitt, 110 N. Y. 595; Roby v. New York Central & H. R. R. R. Co., 142 N. Y. 176.) II. Plaintiff, having failed to show by a fair preponderance of the credible testimony that he was seized or possessed of the said right of way for and during the statutory period of fifteen years, is not entitled to the relief sought. (Klin Co. v. New York R. T. Corp., 271 N. Y. 376; City of New York v. Coney Island Fire Dept., 259 App. Div. 286; Vanton Corp. v. New York R. T. Corp., 277 N. Y. 93; Van Roo v. Van Roo, 268 App. Div. 170.) III. Defendants are the owners by adverse possession of the eight-foot driveway. (Woodruff v. Paddock, 130 N. Y. 618; Hennessy v. Murdock, 137 N. Y. 317; Snell v. Levitt, 110 N. Y. 595.)

      Cornelius J. McCarthy for respondent.
    I. The deed dated October 3, 1931, from Helen G. Stephens to appellants did not extinguish the existing eight-foot right of way. (Blackman v. Striker, 142 N. Y. 555; Tuscarora Club v. Brown, 215 N. Y. 543; Houghtaling v. Stoothoff, 170 Misc. 773, 259 App. Div. 854; Bridger v. Pierson, 45 N. Y. 601; Walrath v. Redfield, 18 N. Y. 457.) II. The deed dated May 27, 1932, from Michael Burke to appellants did not extinguish the eight-foot right of way. (Bridger v. Pierson, 45 N. Y. 601; Peck v. Mallams, 10 N. Y. 509; Case v. Dexter, 106 N. Y. 548; Mittnacht v. Montana, 205 App. Div. 643; Snell v. Levitt, 110 N. Y. 595; Roby v. New York Central & H. R. R. R. Co., 142 N. Y. 176; Porter v. International Bridge Co., 200 N. Y. 234.) III. There has been no extinguishment of the eight-foot right of way created by deed dated 1886 from Hiram Dean to Hosea Rhodes either by adverse possession, abandonment, or estoppel. (Trenton Banking Co. v. Duncan, 86 N. Y. 221; New York Rubber Co. v. Rothery, 107 N. Y. 310; Viele v. Judson, 82 N. Y. 32; Lyon v. Morgan, 143 N. Y. 505; York Mtge. Corp. v. Clotar Constr. Corp., 254 N. Y. 128; Aerated Products Co. v. Godfrey, 290 N. Y. 92.)
   Per Curiam.

Prior to 1932, plaintiff’s predecessor, Michael Burke, owned a right of way eight feet in width across the western end of defendants’ property, which lay between his lot and a street to the north. In that year Burke conveyed to defendants a narrow strip of land along the northern boundary of his lot and running the full length of both lots, and reserved therefrom only “ a right of way over a strip of land four feet in width across the lands hereby conveyed ”. Burke then told defendants that he had retained four feet so that “ they can get in and out to get the garbage ” from his building. Upon the finding of the Appellate Division, which has substantial support in the record, that Burke thereby retained a right of way only four feet wide across a portion of defendants’ land, he must be held to have indicated unequivocally his intent to forego future use of the prior easement save as a footpath. Burke thus abandoned his right of way insofar as it exceeded four feet in width. (See Porter v. International Bridge Co., 200 N. Y. 234, 248-249.)

Plaintiff, who purchased his property from Burke’s estate in 1937, could have acquired no more than an easement four feet wide across defendants’ land. Since defendants’ building does not encroach upon that easement, there is no occasion for equitable relief.

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

Desmond, J.

(dissenting). When defendants became the owner of the corner, or northerly, lot in 1931, that lot was subject to an easement of record in favor of the adjoining premises on the south, later (1937) acquired by plaintiff, which easement was for the use by the southerly premises of an eight-foot wide strip across the westerly end of the northerly, or corner, lot. In 1932, between the time of the acquisition by defendants of the northerly lot and the acquisition by plaintiff of the southerly lot, the then owner of the latter conveyed to defendants a strip of undetermined size, lying between the two lots but reserved from that strip an easement four feet wide, over the strip. When the grantor in the deed last above mentioned conveyed the southerly lot to plaintiff in 1937, the conveyance expressly included the (eight-foot) right of way across the corner lot, described in the first sentence hereof. There is no evidence of any sort that the grantor in the 1932 deed (of the parcel of undetermined size lying between the two lots) intended by reserving a four-foot right of way only over that strip of undetermined size, to abandon or extinguish, or in any way affect, the already existing eight-foot easement over the corner lot. The only possible bases for a claim of abandonment of the eight-foot easement are a supposed inconsistency between a four-foot easement over one strip and an eight-foot easement over the adjoining strip, also a remark by the 1932 grantor, that he was reserving the four-foot way “ to get the garbage out.” Those matters, at most, could no more than raise a question of fact as to whether there ever was any intention to destroy the eight-foot easement, or reduce it to four feet. The fact that in the latest deed (to plaintiff) the existing eight-foot easement was specifically conveyed, is certainly strong evidence against the idea of any abandonment thereof. In any event both courts below made findings to the effect that there never was any such extinguishment or abandonment, and we are bound by those findings.

The judgment should be affirmed, with costs.

Loughran, Ch. J., Lewis, Fuld and Bromley, JJ., concur in Per Curiam opinion; Desmond, J., dissents in separate opinion in which Conway and Dye, JJ., concur.

Judgments reversed, etc.