author: Cardozo, Ch. J.

text:
    In the Matter of the Application of James F. Richardson et al., Appellants. Townsend Scudder, Respondent. In the Matter of Maurice E. Connolly, Appellant, against Townsend Scudder, a Justice of the Supreme Court, Respondent.
    Constitutional law — judges — prohibition — officers — provision of section 34 of Public Officers Law charging justices of the Supreme Court with the duty of acting as delegate of Governor in investigation of acts of public officer invalid — justice may not assume performance of such duties in his private capacity — disqualified while retaining office to act as delegate of Governor — subpoenas issued by justice in such capacity vacated and order of prohibition granted directing him to desist from further action — executive or commissioner appointed by him may be charged with such duties — function of inquisition not divorced from that of hearing and decision by provisions of sections 122 and 382 of New York City Charter providing for hearing before removal of borough President.
    1. Section 34 of the Public Officers Law (Cons. Laws, ch. 47), both before and after its amendment by chapter 15 of the Laws of 1928, in so far as it attempts to charge a justice of the Supreme Court with the mandatory performance of duties non-judicial, by making him the delegate of the Governor in aid of an executive act, the removal of a public officer, is invalid. There is no inherent power in Executive or Legislature to charge the judiciary with administrative functions except when reasonably incidental to the fulfillment of judicial duties and the essence of the judicial function may not be destroyed by turning the power to decide into an opportunity to consult and recommend.
    2. Nor may a justice of the Supreme Court assume the performance of such duties in his private or individual capacity as if named as a commissioner. Service as commissioner in removal proceedings under section 34 of the Public Officers Law is acceptance of a public trust within the prohibition of section 19 of article 6 of the State Constitution providing that “ justices of the Supreme Court shall not hold any other public office or trust, except that they shall be eligible to serve as members of a constitutional convention.”
    3. A justice of the Supreme Court is, therefore, disqualified, while retaining his office, to act as the delegate of the Governor, either in his official or private capacity, and subpcenas issued by him to witnesses to attend a hearing before him of charges against a public officer, under section 34 of the Public Officers Law, should be vacated and an order of prohibition commanding him to desist from further action in the investigation or hearing of the charges, granted.
    4. While the Legislature has no power to charge a justice of the Supreme Court with the duties of a prosecutor in aid of the Executive it may lay such duties on the Executive himself or on a commissioner appointed as his agent or adviser, and neither the one nor the other is subject to supervision of the courts. Nothing in sections 122 and 382 of the Charter of the City of New York (L. 1901, ch. 466), providing that the President of a borough is not to be removed without an opportunity of being heard in his defense, amounts to a direction that in the performance of an executive act, the function of inquisition shall be divorced from that of hearing and decision.

      Matter of Richardson (sub nom. Matter of Rice), 131 Mise. Rep. 220, reversed.

      Matter of Connolly, 222 App. Div. 591, reversed.
    (Argued February 23, 1928;
    decided March 1, 1928.)
    Appeal, in the first entitled proceeding, on constitutional questions only, from an order of a Special Term of the Supieme Court, in and for the county of Kings, entered January 27, 1928, denying an application to vacate subpcenas.
    Appeal in the second entitled proceeding, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered February 1,1928, denying an application for an order of prohibition.

      Joseph S. Frank and William H. Robbins for James F. Richardson, et al., appellants.
    Section 34 of the Public Officers Law in so far as it empowers the Governor to assign a Supreme Court justice to the duties there specified, conflicts with article 6, section 19, of the State Constitution prohibiting a Supreme Court justice from holding any other public office or trust, and confuses the judicial and executive functions of the State government. (Matter of Supervisors of Election, 114 Mass. 247; Attorney-General v. Pelletier, 240 Mass. 264; Matter of Wood, 8 Hopk. Ch. 6; People v. Hall, 169 N. Y. 184; Daily Register Printing Co. v. Mayor, 52 Hun, 542; People v. Bard, 209 N. Y. 403; Citizen’s Savings Bank v. Town of Greenburgh, 173 N. Y. 215; Matter of State Industrial Comm., 224 N. Y. 13; Interstate Commerce Comm. v. Brimson, 154 U. S. 447; Matter of Sanborn, 148 U. S. 222; Matter of Gordon, 117 U. S. Appx. 697; U. S. v. Ferreira, 13 How. [U. S.] 39; Hayburn’s Case, 2 Dall. [U. S.] 409.) The legislative authorization to the Executive to assign a Supreme Court justice to the duties specified in the act, is also in conflict with article 6, section 2, of the Constitution. (People v. O’Shea, 147 N. Y. 78; People v. Gillette, 191 N. Y. 107; Matter of Reynolds v. Cropsey, 241 N. Y. 389; People ex rel. Saranac Land & Timber Co. v. Supreme Court, 200 N. Y. 487; People v. Draper, 15 N. Y. 523; Rathbone v. Wirth, 150 N. Y. 459; Matter of Fraser v. Brown, 203 N. Y. 136; Ford v. Clarke, 204 App. Div. 5; 236 N. Y. 606.)

      Max D. Steuer, Aaron Steuer and Ben Herzberg for Maurice E. Connolly, appellant.
    Under the statute Mr. Justice S cudder is acting only in an advisory capacity. Neither the Legislature nor the Governor can impose the duty on him to render an advisory opinion, as a judge, and article 6, section 19, of the Constitution prohibits him from acting in this matter in any other capacity. (United, States v. Todd, 13 How. [U. S.] 52; United States v. Ferriera, 13 How. [U. S.] 39; Matter of State Industrial Comm., 224 N. Y. 13; Hayburn’s Case, 2 Dall. [U. S.] 409; Matter of MacFarland, 30 App. [D. C.] 365; Divan v. Swig, 223 Mass. 516; State ex rel. Smith v. District Court, 145 Pac. Rep. 721; Case of Supervisors of Election, 114 Mass. 247.) If the statute bestows the power upon the Supreme Court justice individually and not as a judge, it violates article 6, section 19, of the Constitution. (Seymour v. Ellison, 2 Cow. 13; People ex rel. Kelly v. Common Council of Brooklyn, 77 N. Y. 503; Case of Supervisors of Election, 114 Mass. 247; State v. Chase, 5 Har. & Johns. 297; Board of Supervisors v. Todd, 97 Md. 247; Curtis v. Cornish, 109 Me. 385; People v. Hall, 169 N. Y. 184; Matter of Davies, 168 N. Y. 89; People ex rel. Washington v. Nichols, 52 N. Y. 478; People ex rel. Welch v. Bard, 209 N. Y. 307.) The power to conduct an investigation is an administrative and not a judicial function and under the Constitution it may not devolve upon a justice of the Supreme Court. (Wright v. Chicago, 48 Ill. 285; Johnston v. Chicago, etc., R. Co., 130 Wis. 492.) The duty to conduct this investigation and prepare the case for the public hearings is an administrative function. (People v. Dickerson, 164 Mich. 148; McQuade v. City of Joliet, 293 Ill. 515.) The removal of a public officer is an executive act. There is no authority for holding that a judge may discharge non-judicial powers in aid of an executive act. (Matter of Guden, 171 N. Y. 529; Matter of Mitchell v. Cropsey, 177 App. Div. 663; Matter of State Indus. Comm., 224 N. Y. 13; Kilbourne v. Thompson, 103 U. S. 168; People ex rel. McDonald v. Keeler, 99 N. Y. 463.)

      Emory R. Buckner, John M. Harlan and Herman T. Stichman for respondent.
    Mr. Justice Scudder is not holding another public office or trust. (Gordon v. United

      States, 117 U. S. 697; United States v. Ferreira, 13 How. [U. S.] 39; Matter of Mitchell v. Cropsey, 177 App. Div. 663; Matter of Davies, 168 N. Y. 89; Dunham v. Ottinger, 243 N. Y. 423; People ex rel. McDonald v. Keeler, 99 N. Y. 463; People ex rel. Welch v. Bard, 209 N. Y. 304; Citizen’s Savings Bank v. Town of Greenburgh, 173 N. Y. 215; People ex rel. Washington v. Nichols, 52 N. Y. 478.) Section 34 does not subordinate the judicial to the executive branch of the government. (United States v. Ferreira, 13 How. [U. S.] 39; Ex parte Gans, 17 Fed. Rep. 471; Field v. Clark, 143 U. S. 649; People ex rel. Welch v. Bard, 209 N. Y. 304; Kingman v. Met. Sewerage Comm., 153 Mass. 566.)
   Cardozo, Ch. J.

On December 15, 1927, a citizen of the State filed with the Governor charges against Maurice E. Connolly with a view to his removal from office as President of the Borough of Queens. On the following day the Governor, by an instrument in writing, which recited the filing of these charges, addressed a direction to a justice of the Supreme Court to hear the charges, and make report to the Governor thereon. “ Pursuant to section 34 of the Public Officers Law, I do hereby direct that Honorable Townsend Scudder, one of the justices of the Supreme Court in and for the second judicial district of the State of New York, within which said Maurice E. Connolly resides, take evidence as to said charges with all the powers as by law provided, and I hereby further direct said Justice to report to me said evidence taken in such proceedings with his findings of the material facts deemed by him to be established in connection with said charges, together with his conclusion thereon.” Mr. Justice Scudder gave notice to the accused officer on December 30,1927, that he would take the evidence at the County Court House in Long Island City on February 1, 1928, and at such adjourned hearings as might be from time to time announced. He signed the notice with the addition of his official title as Justice of the Supreme Court.

Even in advance of this notice, preparations had begun. Judge Schdder informs us that on December 20, 1927, he retained Mr. Emory R. Buckner, a lawyer of distinction, as his counsel in the proceeding; that thereafter he appointed seven associate counsel, two consulting engineers, a firm of accountants, a number of process servers, and suitable clerical assistants, and rented offices for the use of his staff in the city of New York. With the approval of his advisers he laid out at the beginning a comprehensive plan of action. The work was to be separated into two stages or divisions. The first was to be the stage of preliminary investigation. At this neither the accused officer nor counsel for such officer was to be permitted to be present. Witnesses subpoenaed for this branch of the inquiry were to give their testimony in camera. The credible was to be sifted from the incredible, the true from the false. Following this investigation was to come the stage of public hearing. Accused and counsel would then be present. So much of the evidence as had already received from the judge the stamp of credibility would be offered anew as if upon a trial. This would be done impartially, regardless of the outcome. It is my purpose to require all evidence which I regard as credible secured in the course of the preliminary investigation and which is relevant to any of the matters involved in the charges against said Maurice E. Connolly to be presented at the public hearing whether or not said evidence supports said charges.” Everything heard by the judge during the first stage of the inquiry was to be shut from his mind except in so far as it might be repeated at the second. He would base his report to the extent of his capacity upon the evidence forthcoming in connection with the hearing to the exclusion of anything that had come to him before.

Such was the program. No sooner was it laid out than it was put into execution.' Witnesses were subpoenaed to attend before Judge Scudder in aid of the preliminary investigation and were examined in his presence after being placed under oath. Counsel for the accused official was denied the opportunity to be present, and denied a transcript of the minutes or other information as to the substance of the testimony. The depositions of witnesses procured -by the judge under the compulsion of a writ were treated as equivalent to the office notes of counsel, memoranda for private use in a prospective litigation (People ex rel. Lemon v. Supreme Court, 245 N. Y. 24). They were not embodied in a public record subject to public scrutiny or to inspection by opposing counsel. They will never be so embodied except in so far as it may happen that their contents will hereafter be repeated at the hearing. A preliminary investigation, thus restricted, is not a hearing by a judge. It is a search by an inquisitor.

The assumption of these powers evoked challenge and resistance. On January 9, 1928, divers witnesses, subpoenaed to attend a preliminary session, made application to the Supreme Court to vacate the subpoenas on the ground that they had been issued without warrant of law. On January 24, 1928, Connolly, the accused official, made application to the Appellate Division in the Second Judicial Department for an order of prohibition. Upon the first of these applications, the Supreme Court at Special Term upheld the validity of the subpoenas and denied the motion to vacate them. The witnesses, giving notice that only constitutional questions would be raised, have appealed directly to this court (Constitution, art. VI, § 7, subd. 3; Civil Practice Act, § 588, subd. 3). Upon the second application, the Appellate Division, by its first decision, made an order dated February 6, 1928, commanding Mr. Justice Scudder to desist and refrain from any further proceedings in the matter of the charges against the petitioner by way of taking and hearing the evidence of witnesses except‘at a hearing at which the petitioner is afforded an opportunity of being present.” To the extent that the proceeding was public, prohibition was denied.

We have said that this was the ruling of the Appellate Division by its first decision. At that time, section 34 of the Public Officers Law (Cons. Laws, ch. 47) was in the following form:

“ The governor may take the evidence in any proceeding for the removal by him of a public officer or may direct that the evidence be taken before a justice of the supreme court of the district, or the county judge of the county in which the officer proceeded against shall reside, or before a commissioner appointed by the governor for that purpose by an appointment in writing, filed in the office of' the secretary of state. The governor may direct such judge or commissioner to report to him the evidence taken in such proceeding, or the evidence and the findings by the judge or commissioner of the material facts deemed by such judge or commissioner to be established. The commissioner or judge directed to take such evidence may require witnesses to attend before him, and shall issue subpoenas for such witnesses as may be requested by the officer proceeded against.
The governor may direct the attorney-general, or the district attorney of the county in which the officer proceeded against shall reside to conduct the examination into the truth of the charges alleged as ground for such removal. If the examination shall be before a commissioner or judge, it shall be held at such place in the county in which the officer proceeded against shall reside as the commissioner or judge shall appoint, and at least eight days after written notice of the time and place of such examination shall have been given to the officer proceeded against.
“All sheriffs, coroners, constables and marshals to whom process shall be directed and delivered under this section shall execute the same without unnecessary delay.”

The ruling by the Appellate Division was swiftly followed by legislation enlarging the powers of the delegate of the Governor in the matter of such charges. By Laws of 1928, chapter 15, which became a law on February 8,1928, section 34 of the Public Officers Law was amended so as to provide that in any proceeding for the removal of a public officer, the Governor may direct his delegate, whether a judge or a commissioner, to conduct an investigation into the charges, or to take evidence as to the truth thereof at a hearing for such, purpose, or both. If such a direction is made, the Governor may require the Attorney-General or the district attorney of the county in which the officer resides to assist the person so appointed both in the conduct of the investigation and thereafter in the hearing. Neither the officer so proceeded against nor the counsel of such officer shall have any right to be present at the investigation unless expressly so permitted. The judge or commissioner is authorized to employ counsel in any case where the Attorney-General or district attorney has not been directed to assist, and to employ such other assistants as may be necessary for the performance of his duties. Whoever is named by the Governor to conduct the inquiry is to be paid the fair value of his services unless he is already employed by the State or by a county or city, in which case he is to serve gratuitously. The expenses are made a county or city charge where the proceeding is one for the removal of a county or city officer. All acts theretofore performed by one designated by the Governor in a pending proceeding are legalized and confirmed.

Upon the adoption of this statute a motion was made to the Appellate Division to vacate its order of prohibition which had been limited,- as we have seen, to the inquiry in camera. The motion was granted, and prohibition was denied. There is a recital in the order that the denial was on the law and not in the exercise of any discretionary power.

The two appeals, one by the witnesses from the order upholding the subpoenas, and the other by Connolly from the refusal of the order of prohibition, are here before us now.

We think there has been an attempt by section 34 of the Public Officers Law, both in its original and in its amended form, to charge a justice of the Supreme Court with the mandatory performance of duties non-judicial. He is made the delegate of the Governor in aid of an executive act, the removal, of a public officer (Matter of Guden, 171 N. Y. 529). At the word of command he is to give over the work of judging, and set himself to other work, the work of probing and advising. His findings when made will have none of the authority of a judgment. To borrow Bacon’s phrase, they will not give the rule or sentence.” They will not be preliminary or ancillary to any rule or sentence to be pronounced by the judiciary in any of its branches. They will be mere advice to the Governor, who may adopt them, or modify them, or reject them altogether. From the beginnings of our history, the principle has been enforced that there is no inherent power in Executive or Legislature to charge the judiciary with administrative functions exceptwhen reasonably incidental to the fulfilment of judicial duties (People v. Hall, 169 N. Y. 184; Matter of State Indust. Comm., 224 N. Y. 13, 16). The exigencies of government have made it necessary to relax a merely doctrinaire adherence to a principle so flexible and practical, so largely a matter of sensible approximation, as that of the separation of powers. Elasticity has not meant that what is of the essence of the judicial function may be destroyed by turning the power to decide into a pallid opportunity to consult and recommend (cf. Frankfurter and Landis, Power of Congress, etc.; a Study in the Separation of Powers, 37 Harvard Law Review, 1010, 1020). The question arose as far back as 1792. An act of Congress required the Circuit Courts of the United States to examine into the pension claims of soldiers and seamen of the Revolution, and to certify their opinion to the Secretary of War with a view to corrective legislation. The judges of the several circuits concurred in a determination that the duty was not judicial (Hayburn’s Case, 2 Dall. 409). In 1851 the Supreme Court of the United States considered that determination and approved it, declining jurisdiction under an act not widely different (U. S. v. Ferreira, 13 How. [U. S.] 40, 44). There was an opinion by Taney, C. J., which has become a landmark of the law (Gordon v. U. S., 117 U. S. 697; Matter of Sanborn, 148 U. S. 222; Int. Com. Comm. v. Brimson, 154 U. S. 447, 481; Muskrat v. U. S., 219 U. S. 346, 353; Tutun v. U. S., 270 U. S. 568, 576; Liberty Warehouse v. Grannis, 273 U. S. 70, 74). Nowhere has the doctrine thus established been applied more steadily or forcefully than in the courts of New York. (Matter of Davies, 168 N. Y. 89; Matter of State Ind. Comm., supra). The function of the judges “is to determine controversies between litigants ” (Matter of State Ind. Comm., supra). They are not adjuncts or advisers, much less investigating instrumentalities, of other agencies of government. Their pronouncements are not subject to review by Governor or Legislature (Dinan v. Swig, 223 Mass. 516). They speak “ the rule or sentence.”

The statute was thus an encroachment upon the independence of judicial power even in the form in which it stood until recently amended. Still more clearly is it such an encroachment in its form as now reframed. The judge is made a prosecutor. He is to have his counsel and assistant counsel and experts and detectives. He is to follow trails of suspicion, to uncover hidden wrongs, to build up a case as a prosecutor builds one. If he were the district attorney of the county, he would do no more and no less. What he learns is not committed to a record available to all the world. It is locked within his breast to be withheld or disclosed as his discretion shall determine. No doubt he is to act impartially, neither presenting from malice nor concealing from favor. One might say the same of any prosecutor. The outstanding fact remains that his conclusion is to be announced upon a case developed by himself, Centuries of common-law tradition warn us with echoing impressiveness that this is not a judge’s work. We should be sorry to weaken that tradition by any judgment of this court.

Superficial analogies are suggested, but superficial only. A magistrate before whom there is laid an information of the commission of a crime may take the depositions of the informant and prosecutor and of any witnesses produced (Code Grim. Pro. §. 148). His inquiry is judicial. If he finds that a crime has been committed and that there is reasonable cause to believe that the defendant has committed it, he issues a warrant of arrest (Code Crim. Pro. § 150, subd. 2). He does not keep to himself the knowledge thus acquired, but embodies it in depositions which are exhibited • to the defendant like-any other public record. A justice of the Supreme Court upon proof by affidavit that the moneys of a town or village have been unlawfully or corruptly expended, shall make a summary investigation - of the affairs of such town or village, and the accounts of such officers, and in his discretion may appoint experts to make such investigation and may cause the result thereof to be published in such manner as he may deem proper (Gen. Municipal Law [Cons. Laws, ch. 24], § 4). The validity of that statute has been assumed, though never questioned or determined (Matter of Taxpayers of Plattsburgh, 157 N. Y. 78; Matter of Town of Hempstead, 36 App. Div. 321; 160 N. Y. 685; Matter of Davies, supra). There are adversary parties. On the one side are the taxpayers, not less than twenty-five in number, submitting the petition; on the other the suspected officers, to whom notice must be given. Like an examination by a magistrate, the inquiry is preliminary or ancillary to action unmistakably judicial. “ If such justice shall be satisfied ” that any of the moneys of such town or village are wasted or misapplied, he shall forthwith grant an order ” restraining such unlawful use. An Appellate Division, charged with a duty to 'supervise the conduct of its officers, the members of the bar, orders an inquiry into abuses believed to have developed. It may act of its own motion upon a showing of wrongdoing by one member of the bar. There is authority for the view that it may act upon a like showing of wrongdoing by an indeterminate group, whether the group be large or small (Matter of the Petition of the Assn. of the Bar, 222 App. Div. 580; State ex rel. Reynolds v. Circuit Court for Milwaukee County, 193 Wis. 132; 214 N. W. Rep. 396; Rubin v. State, 216 N. W. Rep. 513). Once more, as with an examining magistrate, inquiry is pursued in aid of a judicial function. We have no occasion to determine with finality whether jurisdiction was legitimately assumed in all these cases or in any of them. However far they go, they do not reach the case at hand. No doubt there are peripheral zones where the judicial and the administrative merge into each other (C. W. Pound, The Judicial Power, 35 Harv. L. R. 787, 789). Other instances can be cited (Greater N. Y. Charter, § 1534; People ex rel. Mitchel v. Cropsey, 177 App. Div. 663). The hinterland may be plain when the frontier is uncertain.

The range of our decision will not be misapprehended. We deny the power of the Legislature to charge a justice of the Supreme Court with the duties of a prosecutor in aid of the Executive. We do not question its power to lay such duties on the Executive himself or on a commissioner appointed as his agent or adviser. Just as the Governor may investigate and afterwards remove, so his commissioner may investigate and later recommend removal. Neither the one nor the other is subject to the supervision of the courts (Matter of Guden, supra). The argument is made that by a provision of the charter (Greater N. Y. Charter, §§ 122, 382), a president of a borough is to be removed in the same manner as a sheriff, and a sheriff is not to be removed without “ an opportunity of being heard in his defense ” (Constitution, art. 10, § 1). Nothing in that requirement amounts to a direction that in the performance of an executive act, the function of inquisition shall be divorced from that of hearing and decision. Other answers are available, but they do not have to be developed.

We reach the final stage in the course of the respondent’s argument. Granting that functions non-judicial may not be cast upon a judge so as to impose a duty of acceptance, the privilege, we are told, is his to assume the performance of the duty, not in his capacity of judge, but in his private or individual capacity as if named as a commissioner. The action of the circuit judges who refused to hold themselves bound by the act of Congress of 1792 is cited as a precedent. Some of the judges, declining to serve in the capacity of judges, agreed to construe the power as conferred on them individually as commissioners,” and as commissioners reported to the Secretary of War (U. S. v. Ferreira, supra at p. 50; U. S. v. Todd, 13 How. [U. S.] 52; cf. Matter of Gans, 17 Fed. Rep. 471).

The Constitution of New York provides (Art. VI, § 19): “ The judges of the Court of Appeals and the justices of the Supreme Court shall not hold any other public office or trust, except that they shall be eligible to serve as members of a constitutional convention.” There is no equivalent provision in the Constitution of the United States. The appellants maintain that service as commissioner in removal proceedings under section 34 of the statute, if not the acceptance of an office, is the acceptance of a public trust.

The prohibition has an ancient history. It goes back for its origin to the Constitution of 1777. At that time it was limited to the acceptance of an " office.” " That the Chancellor and judges of the Supreme Court shall not, at the same time, hold any other office, excepting that of Delegate to the general Congress, upon special occasions; and that the first judges of the County Courts, in the several Counties, shall not, at the same time, hold any other office, excepting that of Senator or Delegate to the general Congress ” (Constitution of 1777, art. XXV.) The next Constitution, that of 1821, broadened the prohibition, at least in terms, so as to include not only an office, but any public trust. “ Neither the chancellor nor justices of the Supreme Court, nor any circuit judge, shall hold any other office or public trust. All votes for any elective office, given by the legislature or the people, for the Chancellor or a justice of the Supreme Court, or circuit judge, during his continuance in his judicial office, shall be void ” (Constitution of 1821, art. V, § 7). The depth of feeling on the subject can be gathered from the form of the resolution as first proposed to the convention' by the judiciary committee: “ They [the Chancellor and the judges] shall not, on any pretence, hold any other office or public trust, whether created under this constitution, or otherwise; and their acceptance thereof, shall vacate their judicial offices: Nor shall they be eligible to the office of governor, or lieutenant governor, within two years after the expiration, or resignation of their judicial offices ” (Journal of Convention of 1821, pp. 101,108; see also, p. 296). The Constitution of 1846 continued the prohibition without substantial change from that of 1821. "They [the judges of the Court of Appeals and the justices of the Supreme Court] shall not hold any other office or public trust ” (Constitution of 1846, art. VI, § 8). A new prohibition was added. “ They shall not exercise any power of appointment to public office ” (Const, of 1846, art. VI, § 8). This latter prohibition was dropped in the- amendment of 1874, very likely in the belief that it was sufficiently embodied in the clause prohibiting the acceptance of any other public trust (People v. Hall, 169 N. Y. 184). No change was made in respect of these provisions by the Constitution of 1894, and none of importance by the revision of the judiciary article of 1926.

The decisions construing the prohibition are halting and obscure. On the one side are People ex rel. Washington v. Nichols (52 N. Y. 478); Matter of Hathaway (71 N. Y. 238), and People ex rel. Welch v. Bard (209 N. Y. 304). On the other, Matter of Davies (168 N. Y. 89); People v. Hall (169 N. Y. 184); Matter of Gilroy (11 App. Div. 65); and in other States, Case of Supervisors of Election (114 Mass. 247), and Board of Supervisors v. Todd (97 Md. 247). One has difficulty in finding the common denominator that will bring them into harmony.

People ex rel. Washington v. Nichols (supra) brought before the court a provision of the appropriation bill of 1871 (L. 1871, ch. 715). The sum of $20,000 was to be paid for relics of George Washington upon the certificate of Martin Grover and two others that the relics were in their opinion genuine. Martin Grover was then a judge of this court, though the statute did not so describe him. He refused to join in a certificate of approval, and the question came up whether he was competent to act. The court defined an office (following an earlier definition in Matter of Oaths by Attorneys, etc., 20 Johns. 492, 493) as “an employment on behalf of the government in any station or public trust not merely transient, occasional or incidental.” Office was thus a species of which a public trust was the genus. The court went on to rule that the “ doing of such an act, a single act like this,” did not involve the “ holding ” either of an office or a trust within the fair intendment of the constitutional provision. The Legislature had not said that annexed to the judicial office there should be a continuing duty to certify or audit at the request of the Executive or of others. . The power was exhausted by the performance of “ a single act.”

Matter of Hathaway (supra) brought before the court an act of 1830 (L. 1830, ch. 320), empowering the Supreme Court to appoint a commissioner to serve as a surrogate for the purpose of a particular proceeding, when the surrogate, and other officers having the powers of a surrogate, appeared to be disqualified. The case was decided by a closely divided court. No reference was made in the opinions to this provision of the Constitution. The only question considered was the effect of another provision, whereby the judges were prohibited from exercising any power of appointment to public office ” (Constitution of 1846, art. VI, § 8). The ruling was that since the office of surrogate was not vacant, the designation of a substitute to serve in a single case was not an appointment to “ office ” any more than an appointment of a referee or a commissioner of appraisal. The term office embraces the idea of tenure, duration, emolument and duties fixed by law ” (Per Stone, J., in Metcalf & Eddy v. Mitchell, 269 U. S. 514, 520). A trust ” is not an office,” unless clearly so recognized by Constitution or statute, if it lacks the quality of permanence.

People ex rel. Welch v. Bard (supra) brought before the court the provision of the Military Law of 1908 (§ 115) authorizing a justice of the Supreme Court to execute a certificate or order calling upon the military authorities for aid in case of any breach of the peace, riot, tumult, etc. Plainly there was here no office or public trust apart from that of judge. The certificate or order was incidental to the duty of a magistrate in the preservation of the peace. With equal reason the point might have been made that a magistrate should be denied the power of a peace officer in making an arrest. “ The performance of administrative duties as to matters incidental to the exercise of judicial powers or which have some reasonable connection with a judicial purpose has repeatedly been sanctioned (Per Willard. Bartlett, J., in People ex rel. Welch v. Bard, supra, at p. 309).

The foregoing are the chief decisions invoked by the respondent to sustain his assumption of the duties of a commissioner. We pass to the cases invoked by the appellants.

Matter of Davies (supra) brought before the court the monopoly act of 1899 (L. 1899, ch. 690) empowering a justice of the Supreme Court on the petition of the Attorney-General to make an order, in advance of any suit, for the examination of a witness. The statute was analyzed in an elaborate opinion. We upheld it for the reason that the examination was incidental to a judicial proceeding, prospective, if not pending. Except for this feature, the duties would be administrative, and the order could not stand. If the willingness of a judge to accept administrative trusts could avail without more to validate his action, the elaborate opinion was in the main •a waste of effort. Enough that the order had been made, and the trusts had been accepted. The opinion is instinct with a ruling that acceptance would have been futile unless the duties were judicial.

People v. Hall (supra) brought before the court the statute empowering the justices of the Appellate Division to appoint a commissioner of jurors. We upheld it on the ground that the power, though a public trust, is one reasonably incidental to the performance of judicial duties. It is analogous to the one so often exercised by courts of appointing clerks and other officers necessary to the transaction of their business ” (Case of the Supervisors of Election, 114 Mass. 247, 250). Such a power involves a public trust, but not one other than the trust involved in the judicial office. It is, we said, a public trust, because it is intrusted to public officers, to be exercised in behalf of the public, by clothing a private citizen with the powers and duties of public office ” (Per Vann, J., 169 N. Y. at p. 195).

Matter of Gilroy (supra), a decision by the Appellate Division, is to the effect that one elected a justice of the Supreme Court vacates through his acceptance of the office an earlier appointment as commissioner of appraisal since by retaining it he would be holding another public trust.

The Case of the Supervisors of Election (supra) was decided by the Supreme Judicial Court of Massachusetts under a provision of the Massachusetts Constitution substantially the same as ours. It held void a statute whereby a justice of the Supreme Judicial Court was to be permitted, in term time or vacation to appoint two supervisors of election for each of the city wards. We cannot exercise this power as judges, because it is not a judicial function; nor as commissioners, because the Constitution does not allow us to hold any such office.”

Board of Supervisors v. Todd, decided by the Court of Appeals of Maryland, is in substance to the same effect.

The problem now before us must be viewed in the background of authority supplied by this summary of the precedents. So viewing it, we think that within the constitutional prohibition there was an acceptance of a public trust.”

The statute annexes or seeks to annex to the office of a judge, not a temporary power to be exhausted by a single act (as in the case of the Washington relics), but a continuing power to be exercised whenever occasion shall arise. As often as the Governor commands, the judge is to obey. As often as the need arises, the call is to be met. He is to be a standing commissioner whose function is to serve when summoned. In such circumstances, the public trust does not cease to be continuing and permanent because the judge may be willing to fulfill it on one occasion and unwilling on another. As well might one urge that a power conferred upon the judges to fill vacancies in office whenever they occurred would be something other than a public trust because the judges might act as to one office and refuse to act as to another. As well might one say that the order reviewed by this court in Matter of Davies (supra) would be upheld, though the statute had been read as conferring administrative powers, on the theory that when separate applications are separately considered, there is involved in respect of each the acceptance of a separate trust. In determining the quality of the trust, regard must be had to the intention of the Legislature in directing its creation. If the intention was, as here, to annex a permanent duty as an incident to the judicial office, a public trust has been created though the occasions for discharging it may be irregular or fitful.

The policy at the root of the constitutional prohibition reinforces this conclusion. The policy is to conserve the the time of the judges for the performance of their work as judges, gnd to save them from the entanglements, at times the partisan suspicions, so often the result of other and conflicting duties. Some of these possibilities find significant illustration in the very cases before us now. Here is an inquiry which has already separated the respondent for more than two months from the discharge of his judicial duties, and which is likely to continue for many weeks to come. The charges as first submitted involved a scrutiny of the acts of the accused official in multifarious transactions for fifteen years or more. Supplemental charges have now been filed with the result that the issues are more involved than ever. The great staff of counsel and assistants engaged upon the work is a token of its complexity and its probable duration. Interference so prolonged with assignments to judicial duty is the very evil that was meant to be, hit by the prohibitions of the Constitution directed against dual office. True indeed it is that there may be times when the duties of a commissioner will be less onerous and protracted. Even so, the nature of the trust must be measured by its reasonable possibilities. Not what has been done under a statute, but what may reasonably be done under it, is the test of its validity (Stuart v. Palmer, 74 N. Y. 183).

The content of the duties tends with as much significance as their duration to point to performance as the acceptance of a public trust. A commissioner in these proceedings is more than a referee or an arbitrator, whose duties touch the parties ^affected by his decision, and concern the public interests remotely if at all. Here the very subject of the inquiry is one distinctively public, the tenure of a public officer. In pursuing that inquiry, the commissioner is authorized from time to time, so long as he functions as commissioner, to incur bills for his expenses and the expenses of his staff. These bills, subject to audit, will be payable from the public purse. If the power to incur such expenses and charge them on the public treasury is not a public trust, one is at a loss to understand how such a trust can be created.

We hold that the respondent is disqualified, while retaining the office of judge, to act as the delegate of the Governor under one name or another. The prohibitions of the Constitution are not to be evaded through the form of accepting as an individual what the judge must reject. At least that is so when what is done is official and not personal in its quality and incidents. In this instance neither Legislature nor Executive nor Judge had any thought of evasion. The Legislature did not intend when a commission was directed to a judge that he should act as an individual, his title as judge being mere descriptio personce. It annexed the duty to the office (cf. U. S. v. Todd, 13 How. [U. S.] 52). The Governor in issuing the commission did not intend to invite co-operation by a private citizen as an act of grace or favor. The language of the designation is not the language of request or of appointment. It is the language of command, addressed by the Executive to a member of the judiciary who is expected to obey. Above all, the respondent himself had no thought to accept the designation in any new capacity. From first to last he has assumed to act as judge and nothing else. He has made his return and affidavits as a justice of the Supreme Court. He has issued his notices and subpoenas with recitals that describe him as a justice of the Supreme Court, and with the addition of his title as such justice he has signed his name thereto. We,were informed by his counsel that in case of need he will exercise the power to punish a contumacious witness for a contempt of his authority, though such power does not exist unless the subpoena has been issued by a justice of the court (Civil Practice Act, § 406). Equivocal acts will be so interpreted as to escape a violation of the constitutional command, and even the risk of violation, when conduct, though permissible, is close to the line of danger. Here the acts are not equivocal. Nothing has been said and nothing has been done with the will to serve in any other capacity than that of a justice of the court.

We are satisfied that in so holding we do not .misread the respondent’s thought and purpose. The Governor, in selecting a judge so distinguished and experienced, was animated by a high sense of public duty, the desire to name a delegate of unquestioned ability and character. Mr. Justice Scudder was animated by a like sense of public duty in responding to a call to service. He thought, beyond a doubt, that the effect of the statute was to annex the duty to the office. If he was uncertain of its validity, he preferred to wait to condemn it until invalidity had been adjudged after argument and deliberation in appropriate proceedings. He supposed that he was discharging his duty as a judge in assuming a heavy burden incidental to the office. There is no reason to believe that his choice would have been the same if he had supposed that he was abandoning, pro tanto, his duty as a judge. His conduct is misinterpreted if we read it as evincing an election to step aside from his judgeship and take upon himself, with all the chances of illegality, the duties of a commissioner. He has been the judge throughout.

Upon the appeal by Richardson and others, the order of the Special Term should be reversed, and the motion to vacate the subpoenas granted.

Upon the appeal by the petitioner Connolly, the order of the Appellate Division should be reversed, and an order of prohibition granted commanding the respondent to desist from further action as a justice of the Supreme Court in the investigation or hearing of the subject-matter of these charges.

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

Ordered accordingly.


source: Caselaw Access Project

author: Cabdozo, Ch. J.

license: Public Domain

text:
    Rosa Truglio, Respondent, v. Zurich General Accident and Liability Insurance Company, Ltd., Appellant.
    Insurance (liability) — subrogation — transfer of real property the owners of which held liability insurance — ■ notice to company to transfer policy to new owners —• action by person injured to recover from insurance company amount of unsatisfied judgment recovered in action against new owners — erroneous charge that acceptance by insurer of new owners must be conclusively presumed —■ assent may not be inferred from failure of insurer to act — alleged usage of no avail in absence of proof thereof.
    1. In an action under section 109 of the Insurance Law (Cons. Laws, ch. 28), to recover the amount of an unsatisfied judgment for personal injuries recovered against the owners of a building who, it was alleged, held a liability policy issued by defendant, where it appears that the policy which had been issued to a former owner of the property contained a provision that no assignment of interest shall bind the company unless consented to by written indorsement on the policy, and that though defendant was notified of the transfer and requested to transfer the insurance to the new owner, nothing had been done at the time of the accident to signify acceptance by defendant of the new owners as the parties insured, it was error for the trial court to instruct the jury that the acceptance of the new owners was to be conclusively presumed if defendant had possession of the policy when the request for the indorsement was received at its office.
    2. An argument that assent is to be inferred from the failure to act upon the request for two days cannot be sustained. Defendant was free to accept or to reject the new owners either with reason or without. Mere silence or inaction left the situation as it was.
    3. An alleged usage on the part of insurance companies to accept all such applications provisionally and until notice of rejection cannot avail plaintiff in the absence of proof thereof. (Manchester v. Guardian Assurance Co., 151 N. Y. 88, distinguished.)

      Truglio v. Zurich General Accident & Liability Ins. Co., 221 App. Div. 760, reversed.
    (Argued February 16, 1928;
    decided March 27, 1928.)
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered June 3, 1927, unanimously affirming a judgment in favor of plaintiff entered upon a verdict. .

      Edward P. Lyon, Harold S. Lyon and Alfred W. Andrews for appellant.
    Defendant’s motion to dismiss the complaint made at the opening of the case at the close of plaintiff’s case and at the close of the whole case should have been granted. (Dwight v. Germania Life Ins. Co., 103 N. Y. 341; Armstrong v. Agricultural Ins. Co., 130 N. Y. 560; Gans v. Ætna Life Ins. Co., 214 N. Y. 326; Lett v. Guardian Fire Ins. Co., 125 N. Y. 82; Greentaner v. Conn. Fire Ins. Co., 228 N. Y. 388; Andrews v. Equitable F. & M. Ins. Co., 236 N. Y. 573; Baumgartel v. Providence & W. Ins. Co., 136 N. Y. 547; Moore v. N. Y. B. F. Ins. Co., 130 N. Y. 537.) An estoppel to claim "a forfeiture cannot be based on mere silence. (Armstrong v. Agricultural Ins. Co., 130 N. Y. 560; Moore v. N. Y. B. F. Ins. Co., 130 N. Y. 537; N. Y. Rubber Co. v. Rothery, 107 N. Y. 310; Titus v. Glens Falls Ins. Co., 81 N. Y. 410; Gibson Elec. Co. v. Liverpool & London & Globe Ins. Co., 159 N. Y. 418.) The alleged custom cannot be relied on to sustain this judgment. (Gravenhorst v. Zimmerman,
      236 N. Y. 22; Corn Exchange Bank v. Nassau Bank, 91 N. Y. 74; Clifton Shirting Co., Inc., v. Bronne Shirt Co., Inc., 213 App. Div. 239; Sherri v. Nat. Surety Co., 243 N. Y. 266.)

      Benjamin C. Ribman for respondent.
    The defendant’s motions to dismiss were properly denied since it was clearly established by the evidence and as a matter of law that the defendant consented to the transfer. (Manchester v. Guardian Assur. Co., 151 N. Y. 88; Graham v. Home Ins. Co., 197 N. Y. Supp. 655; Schoenholz v. N. Y. Life Ins. Co., 234 N. Y. 24; Tidd v. McIntyre, 116 App. Div. 602; Walls v. Bailey, 49 N. Y. 464; Newhall v. Appleton, 114 N. Y. 140; Atkinson v. Truesdell, 127 N. Y. 230.) The appellant’s point that an estoppel to claim a forfeiture cannot be based on mere silence, is not germane because of the custom in the insurance business and the practice in its own office to grant temporary consents to transfers as a matter of course. (Williston on Contracts, 1440, § 758; Allegheny College v. Nat. Chautauqua County Bank, 245 N. Y. 369.)
   Cabdozo, Ch. J.

Plaintiff recovered a judgment for personal injuries suffered through a fall upon a sidewalk. Execution being returned unsatisfied, she brings this action, under Insurance Law (Cons. Laws, chap. 28), section 109, against defendant, an insurance corporation, alleging that the owners of the building held a liability policy issued by defendant to which plaintiff should be subrogated. The defendant denies that the owners were insured when the injuries were suffered.

One Amico was the owner of a house and lot in Brooklyn. She held the defendant’s liability policy, made out in error, however, to Julia Amico instead of Giuseppa. On August 1,1921, she agreed to sell this property to Giuseppe and Caterina Falco, to whom she made a deed on or about August 31. The policy of insurance provided: “No assignment of interest under this policy shall bind the company unless such assignment is consented to by endorsement signed by the manager and attorney or assistant manager for the United States.” On September 1, one Palumbo, a lawyer, mailed the policy to the defendant requesting that the name Julia be changed to Giuseppa. This was done. There was no mention of the sale. The defendant says that after making the change, it sent the policy back to the brokers who procured it. A fortnight thereafter, on September 14, the same lawyer wrote the defendant that the premises had been conveyed to the Falcos and asked that their names be indorsed upon the policy as owners. This letter was received by the defendant on September 15. Two days later, September 17, the accident occurred. At that time the defendant had done nothing to signify its acceptance of the new owners as the parties insured. Indeed it denies that it had the policy in its possession. The trial judge left to the jury a single question of fact, did the defendant have such possession on September 15 when the request for the indorsement was received at its office? If it did, the jury were instructed that the acceptance of the new owners was to be conclusively presumed, and that the defendant would be hable as if an indorsement had been made.

We see no basis for such a holding. This is not a case where the original party to the contract, retaining an interest in the property, seeks to avoid a forfeiture claimed to have resulted from placing an incumbrance upon such interest or transferring a part interest to another. Even in such circumstances one might be at a loss to find the evidence of waiver or estoppel. This is a case where the original party to the contract has dropped out altogether, transferring the whole title to others, who have no interest in the insurance unless a new contract has been made between them and the insurer. The policy of insurance in their hands was no longer a live instrument ” (Lett v. Guardian Fire Ins. Co., 125 N. Y. 82), unless life was breathed into it again by force of a new assent responsive to a new offer. We are told that such assent is to be inferred as a matter of law from the failure to act upon the request for two days, and this in the face of a provision that no assignment shall be effective without written approval indorsed upon the policy. Contracts are not made so easily. The defendant was free to accept or to reject the new owners either with reason or without. Mere silence or inaction left the situation as it was. For a fortnight or more the owners bad been without insurance. The policy issued to their grantor had spent its force as a contract upon the conveyance of the property. More than a request was needed to bring it back to life.

The case of Manchester v. Guardian Assurance Company (151 N. Y. 88), relied on in the courts below, gives no support to their conclusion. There a general agent bad promised to make the indorsement on a policy subject to his control. Here the agent had not promised anything. The Manchester case was distinguished and narrowly limited in Greentaner v. Conn. Fire Ins. Co. (228 N. Y. 388). We should be extending it, instead of limiting it, if we were to apply its ruling here.

The plaintiff makes some point about a usage on the part of insurance companies to accept all such applications provisionally and until notice of rejection. We pass over the question whether the usage could prevail in the face of the provisions of this policy. If valid, it has not been proved. When temporary insurance is intended, the practice of the companies is to sign a binder, with appropriate conditions (Sherri v. Nat. Surety Co., 243 N. Y. 266). If the risk is disapproved, the binder may be canceled. Here there was no binder and, therefore, no insurance.

The judgment of the Appellate Division and that of the Trial Term should be reversed and the complaint dismissed with costs in all courts.

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

Judgments reversed, etc.


author: O’Brien, J. Pound, J.

text:
    Corrine M. Henderson, Respondent, v. Earl H. Henderson, Appellant.
    Jurisdiction. — appearance — divorce — voluntary general appearance by attorney equivalent to notice of appearance — attorney who participates in trial of merits estopped from assailing jurisdiction — announcement in open court of special appearance when combined with conduct clearly indicating the contrary has effect of general appearance —■ motion to strike from judgment of divorce provisions requiring payment of money properly denied.
    1. A voluntary general appearance by the attorney for a defendant on the trial or hearing is the equivalent of the service of a notice of appearance under section 237 of the Civil Practice Act, and when he becomes an actor in the suit to the extent of participating in the merits he submits to the jurisdiction of the court. By accepting the benefits he is estopped from assailing the general nature of his appearance. (Muslusky v. Lehigh Valley Coal Co., 225 N. Y. 584, distinguished.)
    2. Where, therefore, upon a motion for judgment of absolute divorce by default, during the taking of testimony, defendant’s counsel asked and obtained permission to cross-examine a witness and at that time confined his questions to matters relating to defendant’s income but thereafter recalled three witnesses for cross-examination and put to them questions designed to prove a recriminatory plea, took exception to the court’s refusal to admit such testimony in default of pleading and to the court’s declaring the testimony closed and asked to have the record show that he had other witnesses in court to prove that the plaintiff had had improper relations with another man, counsel’s announcement in open court of a special appearance, when combined with his conduct so clearly indicating a contrary position, has the effect of a general appearance. He. may be deemed to have come before the court and attempted to try the merits of the case and so cannot deny jurisdiction. A motion, therefore, to strike from the judgment all provisions requiring payment of money was properly denied.

      Henderson v. Henderson, 221 App. Div. 787, affirmed.
    (Argued February 16, 1928;
    decided March 27, 1928.)
    Appeal from an order of the Appellate Division of the Supreme Court in the fourth judicial department, entered August 3, 1927, which affirmed an order of Special Term denying a motion to vacate an order granting counsel fees and to modify an interlocutory judgment of divorce by striking therefrom provisions for alimony.

      Robert H. Tew and Glenn L. Buck for appellant.
    A general appearance giving the court jurisdiction of the person of the defendant can only be made by the methods prescribed in section 237 of the Civil Practice Act, to wit, by serving a notice of appearance, a copy of an answer or a notice of motion raising an objection to the complaint in point of law. (Muslusky v. Lehigh Valley Coal Co., 225 N. Y. 584; Littauer v. Stern, 177 N. Y. 233; Farmer v. National Life Assn., 138 N. Y. 265; Goldey v. Morning News, 156 U. S. 518; Merchants Heat & Light Co. v. Clow & Sons, 204 U. S. 286; Jaworower v. Rovere, 98 Misc. Rep. 377; Robinson v. Robinson, 123 Misc. Rep. 80; Avery v. Slack, 17 Wend. 85; Jones v. Jones, 108 N. Y. 415; Lazzarone v. Oishei, 2 Misc. Rep. 200; Boyton v. Keeseville Elec. Light & Power Co., 5 Misc. Rep. 118.)

      John J. Mclnerney for respondent.
    The defendant appeared generally and the court had jurisdiction of his person. (Matter of Atterbury, 222 N. Y. 355; Read v. Chillson, 142 N. Y. 152.) The defendant is bound by the appearance of his attorney who appeared generally in this action. (Kay v. Metropolitan St. Ry. Co., 163 N. Y. 447; Austin v. Bartlett, 178 N. Y. 310.)
   O’Brien, J.

The parties were married and for several years resided together in this State. Plaintiff still lives here. Defendant became a resident of Pennsylvania and in that State was personally served in an action brought in New York for absolute divorce. Upon his default in pleading, plaintiff moved for judgment, the Special Term heard testimony some of which was elicited by defendant’s attorney who was present at the hearing, issued an order allowing counsel fees, made findings of fact and conclusions of law and granted an interlocutory decree of divorce with alimony. After the entry of that judgment defendant’s attorney, asserting that he appeared specially, moved to vacate the order allowing counsel fees and to modify the judgment by striking out all provisions requiring payment of money. His motion was denied and the Appellate Division unanimously affirmed the order. Defendant argues that, in the absence of personal service within this State, a money judgment against him is void, unless obtained after a general appearance and that there was no such appearance.

November 30, 1926, defendant was in Rochester. The next day testimony in this case was heard in Special Term in that city. An attorney, other than counsel who argued the appeal in this court, was present in behalf of defendant at the trial. After four witnesses had testified in support of the allegations of the parties’ marriage and of defendant’s adultery and in respect to his income, this attorney stated: “I am preserving my rights by not appearing generally, but I would like to ask one or two questions.” The court replied that counsel would have to take his chances on his appearance but that he had the right to appear at any time. The attorney repeated the statement that he was not appearing generally, received permission to cross-examine and at that time confined his questions to matters relating to defendant’s income. Then he caused three witnesses to be recalled for cross-examination. After a few questions had been asked by him, this colloquy occurred: Mr. Mclnerney: I call attention to the fact that counsel is appearing generally in this matter. Mr. Buck: No, I am appearing specially. Mr. Mclnerney: Then I object to the examination at this time as a special appearance. Either he appears generally or specially. The Court: I will receive evidence on behalf of the defendant.” Counsel then interrogated concerning the presence of a man named Maciejewski in plaintiff’s house, claiming that his questions bore upon the financial condition of the parties. After many questions, clearly implying a recriminatory purpose, had been asked, that line of examination was stopped by the court. The attorney argued: It seems to me it is competent to show whether she is being supported by somebody else and that is the purpose of my question, to show whether she is cohabiting at this house with another man.” The Court: No, I will not go into that.” Nevertheless, counsel persisted in questions evidently designed to prove such facts as a plea of recrimination might have warranted, and took exception to the court’s refusal to admit such testimony in default of pleading. Here is an example. Q. At the time you talked to Mr. Henderson which you .already testified on direct examination, did you or did you not say to him in words or substance that you knew that the fault was not all his? * * * The Court: Strike it out. Mr. Buck: Exception. The Court: If you want to defend this case on the merits, put in an answer. ’ ’ Even then, co unsel disregarded the warning. He recalled a witness for the express purpose of investigating plaintiff’s relations with Maciejewski. He wanted to know if Maciejewski had not visited the Henderson residence at Lake Placid and had a room there after defendant had left. This witness was not at that time cross-examined on any other subject, but after an objection to such questions had been sustained and exception taken, the following occurred: “ The Court: This witness doesn’t know anything about any financial transaction and that is all we are concerned with here. Mr. Buck: Exception. The Court: You are getting into the record a lot of suspicion and the court will make no finding upon any suspicion.” Counsel then recalled plaintiff and questioned her for the purpose of proving that Maciejewski had been at her house in Rochester the day before the trial and on other occasions, that she had several fur coats and that she had brought an action against her husband for separation before she sued for divorce. He asserted that by such questions he was endeavoring to show that this case is one of prosecution and persecution. This is a matter where two actions have been brought against him.” The court declared the evidence closed and the attorney excepted and asked to have the record show that he had other witnesses to call. They were then in court but at first he refused to divulge the nature of their testimony. At length he admitted that they did not intend to testify in respect to the financial circumstances of the parties. Excepting to the court’s refusal to receive their testimony, he said: I want to state that it will relate to the presence of another man in the residence which is now owned by the parties,” and again excepted.

The certified question requires an answer whether the Supreme Court acquired jurisdiction of defendant’s person sufficient to enable it to grant the judgment involved herein.

Before our decision in Muslusky v. Lehigh Valley Coal Co. (225 N. Y. 584) many trivial acts by a defendant were viewed as putting him in the position of an actor in litigation. The general rule in this State is that when a defendant becomes an actor in a suit to the extent of participating in the merits he submits to the jurisdiction of the court (Farmer v. N. L. Association, 138 N. Y. 265, 270) and that rule has the approval of the Supreme Court of the United States. In Merchants H. & L. Co. v. Clow & Sons (204 U. S. 286, 290), Mr. Justice Holmes cited the Farmer case and observed that the difference of opinion grows out of the question as to when a defendant does become such an actor. This question is one largely of degree and the application of the rule must necessarily depend upon the facts. (Matter of Macaulay, 27 Hun, 577; affd., 94 N. Y. 574; Thames & Mersey Ins. Co. v. U. S., 237 U. S. 19, 24, 25; St. L. & S. F. Ry. Co. v. McBride, 141 U. S. 127; Richardson Mach. Co. v. Scott, 276 U. S. -.) When we said in the Muslusky Case {supra) that a general appearance cannot be made except in the manner indicated in section 421 of the Code (now section 237, Civil Practice Act), we had no thought to hold that a defendant participating in the litigation as an actor in a genuine and substantial sense will be permitted to contest the jurisdiction of his person by coupling with the participation a disclaimer of his willingness to be affected by its consequences. (U. S. ex rel. Int. Cont. Co. v. Lamont, 155 U. S. 303, 310; Grant v. Pratt & Lambert, 52 App. Div. 540, 548.) Such a rule would lead to incongruous results and the Legislature cannot have intended by declaring the form of an appearance to import such consequences into the body of our law. The statute prescribes the forms of pleadings, yet parties may try a case, if they will, without reference to the pleadings. (Gillies v. Manhattan Beach Imp. Co., 147 N. Y. 420.) If they may waive the necessity of an answer, they may do the same as to an appearance. A defendant by accepting the benefits may be estopped from assailing the general nature of his appearance and may be held to have submitted to jurisdiction. The question here is: Did this defendant do so? .

Unless the attorney at bar intended, if he could, to prevent any judgment for plaintiff or, failing in that, to repress the volume of alimony, his presence at the trial is enveloped in mystery. In the absence of objection, defendant could appear at any time. In open court his attorney could announce a general appearance. Such a practice is not uncommon and common practice has strong judicial approval. He took exception to rulings relating to matters other than jurisdiction. He had his witnesses in court and asked permission to place them on the stand for the purpose of supplying evidence affecting the essence of the case. Every syllable that he uttered points unerringly to an attempt to prove facts which, if credited, would prevent judgment against bis client or to an attempt to keep down the amount of alimony. Not a word on the trial relates to jurisdiction and that is the only purpose for which a special appearance is recognized. (Muslusky v. L. V. Coal Co., supra.) He protested that he appeared specially, but the assertion of a special appearance accompanied by inconsistent conduct may be confuted by the facts. (Matter of Atterbury, 222 N. Y. 355, 362.) We think that counsel’s announcement in open court of a special appearance when combined with his conduct so clearly indicating a contrary position has the effect of a general appearance. He may be deemed to have come before the court and to have attempted to try the merits of the case and so cannot deny jurisdiction. (Reed v. Chilson, 142 N. Y. 152, 155.) The correction of the judgment by the recital of a general appearance was consistent with the facts and, accordingly, the question certified should be answered in the affirmative and the order should be affirmed, with costs.

Pound, J.

(concurring). A voluntary general appearance by the attorney for a defendant on the trial or hearing is the equivalent of the service of a notice of appearance, under Civil Practice Act, section 237. He thereby submits himself to the jurisdiction of the court, and no disclaimer which he may make upon the record, that he does not intend to do so, [i. e., appear generally] will be effectual to defeat the consequences of his act.” (Farmer v. N. L. Assn., 138 N. Y. 265, 270.) The Muslusky case dealt only with appearances before trial and did not involve the consideration of appearances on the trial.

Cardozo, Ch. J., Crane, Andrews, Lehman and Kellogg, JJ., concur with O’Brien, J.; Pound, J., concurs in memorandum in which all concur.

Order affirmed, etc.


author: Pound, J.

text:
    Yonkers Fur Dressing Company, Inc., Appellant, v. Royal Insurance Company, Ltd., et al., Respondents. (Two cases.) Yonkers Fur Dressing Company, Inc., Appellant, v. Standard Fire Insurance Company et al., Respondents. Yonkers Fur Dressing Company, Inc., Appellant, v. National Liberty Insurance Company et al., Respondents.
    Practice •— settlement — effect of settlement of actions — court without power to set aside settlement on motion in the actions on conflicting affidavits raising anew the disputes once settled.
    1. The settlement of an original controversy involved in an action, resulting in a new agreement to the effect that the “ litigation is settled and terminated,” the defendants having agreed to pay a stated sum in full settlement, is not a mere arrangement between counsel from which a party may be relieved, in the discretion of the court. It is the settlement and termination of the litigation bringing into existence a contract which, if valid, is final and to be sustained by the court without regard to the validity of the original claim.
    2. That a witness has been newly discovered by the defendants who would testify to facts which, if accepted as true by the jury, would constitute a complete defense to the original action, when such witness is contradicted by witnesses for plaintiff, is not a sufficient ground for setting aside the settlement on motion in the action, on conflicting affidavits raising anew the same dispute once settled. (Van Nuys v. Titsworth, 57 Hun, 5; Sperb v. Met. El. Ry. Co., 10 N. Y. Supp. 865; affd., 123 N: Y. 659, distinguished.)

      Yonkers Fur Dressing Co. v. Royal Ins. Co. (2 eases), 222 App. Div. 688, reversed.

      Yonkers Fur Dressing Co. v. Standard Fire Ins. Co., 222 App. Div. 688, reversed.

      Yonkers Fur Dressing Co. v. National Liberty Ins. Co., 222 App. Div. 688, reversed.
    (Argued February 15, 1928;
    decided March 27, 1928.)

      Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the second judicial department, entered November 11, 1927, which affirmed an order' of Special Term granting a motion to vacate, set aside and annul an agreement settling the above-entitled actions.
    The following questions were certified: “ 1. Did the court at Special Term have the power upon defendants’ motion and over plaintiff’s objections, to set aside and annul the settlement agreement in the absence of any claim of fraud, mistake or other reason sufficient to invalidate a contract, after the parties by their respective attorneys had duly made a written agreement settling the above-entitled four actions for the sum of $92,500, and after the said four cases had been marked settled and discontinued in open court, pursuant to the settlement agreement? 2. Did the court at Special Term have the power,- upon defendants’ motion and over plaintiff’s ■objection, upon the papers there presented, to set aside and annul the settlement agreement made by the parties? 3. Assuming that the court at Special Term had the power to pass upon the motion to set aside the settlement agreement, did the defendants in their moving papers present any facts authorizing the court to grant the motion? ”

      Frank H. Hiscock and Alfred B. Nathan for appellant.
    The compromise and settlement was binding and effective upon all parties and could not be set aside, except for well-defined reasons which did not exist. Moreover, the court had no power to grant such relief on motion under the circumstances of this case. (Moers v. Moers, 229 N. Y. 294; Smith v. Insurance Co., 62 N. Y. 85; Sears v. Grand Lodge, 163 N. Y. 374; Ostrander v. Ostrander, 199 App. Div. 437; Morehouse v. Second Nat. Bank, 98 N. Y. 503; Bandman v. Finn, 185 N. Y. 508; Lockwood v. Ins. Co., 175 App. Div. 24; 223 N. Y. 714; Commercial Bank v. Beers, 202 N. W. Rep. 757 [Iowa]; Brown v. Nichols,
      42 N. Y. 26; Acker v. Ledyard, 8 N. Y. 62.) The court had no power at Special Term, on motion, to annul and set aside the contract of settlement made between the parties. If for any reason that contract was invalid or voidable the defendants’ right to relief was confined to an action in equity for rescission. (Equitable Trust Co. v. MacLaire, 77 Misc. Rep. 116; Penn Steel Co. v. N. Y. City Ry. Co., 165 Fed. Rep. 467; Lilly v. Haynes Co., 48 N. D. 937; Matter of Tilden, 117 Misc. Rep. 656; Matter of Jetter, 78 N. Y. 601; Bates v. Harding, 17 App. Div. 606; Rhodes v. Dutcher, 6 Hun, 453; Dietz v. Dietz, 2 Hun, 339; Hill v. Hermans, 59 N. Y. 396; Conrad v. Conrad, 123 App. Div. 385; R. R. Co. v. Johnston, 84 Hun, 83; Insurance Co. v. O’Donnell, 146 N. Y. 275.)

      Sydney A. Syme and Leo Levy for respondents.
    Question No. 2, if entertained, should be answered in the affirmative. (Turner v. N. Y. C. & H. R. R. R. Co., 74 Misc. Rep. 524; 168 App. Div. 359; Sperb v. Met. El. Ry. Co., 10 N. Y. Supp. 856; 123 N. Y. 659; Barry v. Mut. Life Ins. Co. of N. Y., 53 N. Y. 536; Hallow v. Hallow, 200 App. Div. 642; Humphries v. Shapiro, 187 App. Div. 96; People ex rel. Tappin v. Cropsey, 176 App. Div. 415; Van Nuys v. Titsworth, 57 Hun, 5.)
   Pound, J.

These actions were brought in the name of the plaintiff by a committee, representing all of the creditors of plaintiff. The plaintiff, a New York corporation, was engaged in the fur dressing business and had a large plant located at Yonkers, N. Y., where it dressed furs and skins belonging to other persons. It had procured policies of fire insurance from the defendants to protect the merchandise of plaintiff’s customers against loss and damage by fire; also upon the fixtures and machinery contained in its plant; also policies of fire insurance protecting it against loss of profits, as a result of a fire in its plant.

A fire occurred in plaintiff’s plant on February 19, 1926, as a result of which it claims that merchandise contained in the plant, and fixtures and machinery were damaged and destroyed. Shortly after the fire it developed that the merchandise of plaintiff’s customers in the plant was greatly under-insured; that the sound value of such merchandise was claimed to be the sum of $171,721.12 and that the damage thereto by the fire was greater than $145,000, while the plaintiff had only $90,000 insurance thereon. The other items, machinery and fixtures, profits and use and occupancy, were fully insured.

As a result of the under-insurance of the merchandise of plaintiff’s customers, the plaintiff, at the insistence and request of certain of its creditors, assigned all the policies of insurance to a committee of five, as trustees for the creditors, under an instrument dated April 14, 1926, which transferred absolutely all plaintiff’s right, title and interest in the policies, with the proviso that if the amounts received from the companies exceeded the full amount of the claims of plaintiff’s creditors, the surplus would be turned back to plaintiff. The assignment was made not only to protect the merchandise creditors of the plaintiff, but all other creditors as well.

The committee was given power to institute suits upon the policies in the name of the assured and to settle and compromise such suits for any amount the committee thought proper; also to hire counsel and to incur disbursements and expenses with reference to the collection of the claims from the insurance companies. The total amount of claims under all the policies exceeded $250,000. Payment having been refused by the insurance companies, suits were brought, in July or August, 1926, by the committee in the name of the plaintiff.

The answers of the defendants, which were verified, contained in addition to general denials, an affirmative defense of fraud and false swearing in connection with the proofs of loss, false and fraudulent books of account, incendiary origin of the fire, arson and fraudulent removal of merchandise before the fire.

The actions were preferred upon the application of plaintiff and set for trial for April 18, 1927. Shortly after that time and upon the eve of trial Mr. Levy, the attorney representing all defendants, and Mr. Nathan, the attorney for the committee and nominally for the plaintiff, began negotiations for settlement.

Mr. Levy asked Mr. Nathan to ascertain from the committee the lowest amount for which the cases could be settled. Mr. Nathan called a meeting of the creditors’ committee and was told that $100,000 was the minimum for which the cases would be settled. This was communicated to Mr. Levy and after further negotiations back and forth a settlement for $92,500 was agreed upon, leaving the defendants in all four cases to apportion this amount between themselves as they saw fit.

Mr. Levy stated that he had been trying for some time to secure evidence that the fire was incendiary and that the plaintiff had been guilty of fraud and false swearing as alleged in the answers, and that he being without sufficient evidence to warrant going to trial, arranged a stipulation of settlement of these cases as set forth and embodied in the letters exchanged between the plaintiff’s attorney of recqrd, Alfred B. Nathan and deponent, which said letters are hereto attached and made part hereof.”

The settlement was finally consummated and confirmed on May 5th and 6th, 1927, in letters exchanged by the attorneys for the respective parties. The cases in the meantime had been set for trial for Monday, May 9th, 1927, and plaintiff’s attorney was actually ready to proceed with the trial at that time, had the settlement not been made.

The letters read as follows:

(Letterhead of Alfred B. Nathan and Howard S. Imbrey)

“ 110 William St., N. Y. C.
May 5th, 1927.
“ Leo Levy, Esq.,
“ 110 William Street,
New York City:
Re: Yonkers Fur Dressing Co. v. Ins. Cos.
“ Dear Sir.— I confirm our talk to-day as a result of which we have agreed that the above entitled litigation is settled and terminated, your clients, the insurance companies in interest, having agreed to pay the sum of %92,50U in full settlement of all claims apportioned as the companies see fit as between themselves.
“The suits are to be marked settled upon the call of the calendar next Monday. General releases are to be executed by the assured and by or on behalf of the trustees under the terms of the agreement of April 14th, 1926, and stipulations of discontinuance are to be exchanged so that an order of discontinuance can be entered in due course.
“ It'is further understood between the trustees of the creditors representing the fur industry and the insurance companies that this disposition of the litigation shall in no wise be deemed prejudicial to the criminal proceedings and inquiry now pending in Westchester County, and is the attempt to dispose of without prejudicing the rights of individuals and claimants under the terms of the policies involved, as bailors.
“ It is further understood that you are to place in my possession all available data bearing upon the bona fides of all the claims that you have obtained in the course of your investigations and inquiries so that no individual or concern shall receive through the trustees any moneys to which they, in fact, are not entitled, and so that those who have participated in any wrong shall be properly exposed.
“ With respect to the latter, I am authorized by Mr. Joseph Steiner, individually, and by the firm of Joseph Steiner & Bros, that they will contribute respectively $2,500 toward the expense required for the furtherance of the criminal investigation in the hands of the District, Attorney of Westchester County, providing any such further proceedings be had with their knowledge and. consent.
“ The trustees agree to hold the companies harmless; against any suit by any alleged bailor.
This is to confirm the understanding above outlined.
“ Yours very truly,
“ALFRED B. NATHAN.”'
“May 6, 1927. ’
<< a -d u' Alfred B. Nathan, Esq.,
No. 110 William St.,
New York City:
“ Re: Yonkers Fur Dressing Co. v. Insurance Companies.
“ Dear Sir.-— I acknowledge receipt of yours of the 5th inst. re the termination of the litigation above entitled.
“ The suggestions as therein embodied are acceptable, although the language of one or two paragraphs is somewhat obscure, which I hasten to correct.
“ It is clearly understood that the disposition of the-pending litigation is not alone without prejudicial intent, to the criminal proceedings pending in Westchester County, but is intended to aid such proceedings and save, from further injury those innocent bailors of the named assured whose property was involved in the fire of questionable origin.
“ The Insurance Companies will render every aid and assistance in the further exposure of those responsible and in the attempt to secure their punishment.
“It is of course the further understanding that the guaranty by the Trustees to hold the Insurance Companies harmless from any further or other claim, is a moving consideration for this disposition of the litigation.
“ There is omitted from your letter one important fact qf our understanding, and that is that should it eventuate hereafter at any time within say three years that any concern or individual has received moneys to which such individual or concern is not properly entitled, restitution thereof shall be made and is guaranteed to the insuring companies in interest.
Will you therefore prepare in accordance with the understanding the necessary documents of release, and will you also secure for inspection and examination, the temporary delivery of the policies which it is claimed were in force?
Of course you understand that everything will be done to facilitate a speedy closing and disposition of the matter, but in view of the complications there will be some little delay.
“ Yours very truly,
“ LEO LEVY.
P. S.— The temporary inspection of the policies is desired to check the lists of insurance.”

After the receipt of the letter of May 6th, 1927, from defendants’ attorney, plaintiff’s attorney told Mr. Levy that the amendments and changes made in his letter of the 6th were entirely in order. This was done by Mr. Nathan after he had communicated with the committee and obtained its assent thereto. On the same day, May 6th, 1927, Mr. Nathan wrote Mr. Levy, requesting the latter to prepare the general releases that were to be executed by the assured and by the committee, so that they could be signed in due course. On the next day, May 7th, 1927, Mr. Levy’s office phoned Mr. Nathan and requested the insurance policies involved in the four cases, which were turned over to him on that date. Mr. Levy has kept the policies in his possession.

When the cases appeared on the day calendar for trial on Monday, May 9th, 1927, they, in accordance with the agreement of settlement, were marked settled and discontinued ” in open court by counsel for all parties. Nothing further occurred until June 2, 1927, upon which date defendants’ attorney served motion papers upon an application to vacate and annul the settlement agreement. The original motion papers consisted of an affidavit of Mr. Levy who swore in substance that after the settlement was made he had discovered a witness, Stockley, who would testify that the fire on February 19, 1926, was incendiary in origin and that Nathan Ressler, plaintiff’s president, had employed him to set the plant on fire and had also removed merchandise from the plant in anticipation of the fire. This affidavit was corroborated by the affidavit of Stockley who swore that he was employed by the plaintiff’s president to set the place on fire and also that a large quantity of customers’ merchandise had been removed from the plant before the fire.

Answering affidavits of Mr. Nathan and Ressler were read in opposition. Ressler denied the allegations of Stockley’s affidavit. Mr. Nathan raised the objection that the settlement agreement should not be set aside on a motion in the action; that an equitable action to set aside the settlement was the proper remedy.

Mr. Levy in reply asserted that the settlement agreement was unauthorized for the reason that the assignment in question provided that the trustees could consent to a settlement only by the written consent of three trustees, which had not been obtained; that plaintiff’s consent was also necessary because it was to receive any surplus over the claims of creditors; that a receiver appointed on a .judgment creditor’s action after the assignment in question was a necessary party to the settlement agreement.

Mr. Nathan sought to meet these objections. Plaintiff would get no part of the proceeds of the settlement agreement as the claims of creditors would exhaust the fund. Ressler, the president, knew of the settlement and made no objection thereto. All the members of the committee had expressly approved and authorized the settlement before it was made. The receiver could not intervene because the assignment was prior to his appointment and his only remedy was an action to set aside the agreement if he could show that it was in fraud of creditors. The judgment creditor in the action in which the receiver was appointed was entitled to come in and share the benefits of the settlement.

. The motion was granted without opinion. The Appellate Division unanimously affirmed without opinion but allowed an appeal on certified questions to this court.

The settlement of the original controversies involved in these actions resulted in a new agreement to the effect that the above entitled litigation is settled and terminated, * * * the insurance companies in interest having agreed to pay the sum of $92,500 in full settlement of all claims.” This is not a mere arrangement between counsel made during the pendency of the case from which a party might be relieved when both parties could be restored substantially to their former position in court and when it would be inequitable to hold the parties to it. (Magnolia Metal Co. v. Pound, 60 App. Div. 318; Hallow v. Hallow, 200 App. Div. 642.) It is the settlement and termination of the litigations, marking a fresh start by the plaintiff from a new coign of vantage. The compromise was wholly foreign and extrinsic to the litigation and to any action by the court. The signing of stipulations and entry of orders of discontinuance were not conditioned upon the payment of the money. They would be evidence merely, not the fruit of the settlement. When the cases were marked settled and discontinued ” in open court by the parties, it was as if they had never been begun.

A contract of settlement, if valid in itself,, is final and is to be sustained by the court without regard to the validity of the original claim. (Smith v. Glens Falls Ins. Co., 62 N. Y. 85; Sears v. Grand Lodge A. O. U. W., 163 N. Y. 374.)

The question arises whether such a settlement and compromise of disputed claims may be set aside on motion in the actions on the ground that a witness has been newly discovered by the defendants who would testify to facts which, if accepted as true by the jury, would constitute a complete defense to the original actions, when such witness is contradicted by the plaintiff’s witness. The court unquestionably exercises a large control over all proceedings in an action so long as the action is pending and the parties can be restored to their original position. (Barry v. Mutual Life Ins. Co., 53 N. Y. 536, and cases cited.) In the exercise of its discretion it reheves litigants from stipulations signed by counsel during the pendency of the case, on motion in the action, when sjich stipulations were either unadvisedly or inadvertently signed, or when the circumstances reveal that' the stipulation should not be held, in order to promote justice and prevent wrong. General language in opinions must, however, be read in connection with the question decided and the question here raised has never been passed on directly by this court.

Stipulations and agreements of settlement have, no doubt, been set aside on motion. (Van Nuys v. Titsworth, 57 Hun, 5.) Only one such case has reached this court. (Sperb v. Met. El. Ry. Co., 10 N. Y. Supp. 865; affd., without opinion, 123 N. Y. 659.) The question there was primarily one of the authority of plaintiff’s attorney to sign the stipulation. Without such authority, it was a nullity. An examination of the record discloses that the stipulation provided that if the amount agreed on should not be paid before a given date plaintiff may thereupon enter judgment for the agreed amount.” The action was still pending when the stipulation was set aside and it was subject to the supervision of the court because judgment might be entered thereon. The language of Van Brunt, P. J., to the effect that such a stipulation might be set aside on motion in any case if given unadvisedly and if it would be inequitable to hold plaintiff to its terms, was, first, dictum, and secondly, used in view of the right of the plaintiff to be relieved from the particular situation. In neither event was it binding upon this court.

These cases and all others cited are distinguishable from the present case. The settlement was made, not subject to judicial action, but by contract. Fraud was the issue in the actions but suspicion had produced no witness. On the eve of trial, with no defense, although the actions had been pending for a year, with a judgment for the full amount claimed confronting the defendants, the parties settled and terminated the litigation.

The agreement of settlement was, under these circumstances, entered into by defendants, not lightly, inadvertently, inadvisedly or jmprovidently, but in order to make the best terms possible with the plaintiff. The hope of gaining was balanced against the risk of losing. There was an exchange of equivalents, irrevocable except for fraud, a settlement of a controversy presumably honest. The old causes of action were terminated. A new liability was substituted therefor. The nature of the new cause of action we need not define. Enough to say that it superseded the old.

Defendants may be able in an independent suit to upset the settlement for reasons that would invalidate a contract, such as fraud or over-reaching. But when a compromise results in the termination of an action and the execution of a new agreement giving effect to the settlement, it cannot be undone in the discretion of the court, on motion in the action and on conflicting affidavits raising anew the same dispute once settled, merely to bring about a final disposition of the original action on its merits. (Emeris v. Woodward, 43 Ch. D. 185; Lilly v. Haynes Co-op. Coal Mining Co., 48 N. D. 937.)

The other objections to the reversal of the order below seem unsubstantial. At least they should not be disposed of on conflicting affidavits.

The order of the Appellate Division and that of Special Term should be reversed and the motion to vacate the settlement denied, with costs in the Appellate Division and in this court and ten dollars costs of motion. The seocnd and third questions certified answered in the negative and the first question not answered.

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

Ordered accordingly.


author: Kellogg, J.

text:
    Anna C. Miller, Appellant, v. Florence Silverman, as Administratrix of the Estate of Edward A. New, Deceased, Respondent.
    Replevin — decedent’s estate — actions to recover securities in safe deposit box of decedent at his death on ground that they were property of plaintiff — memoranda in decedent’s handwriting attached to securities stating they were property of plaintiff proof that all acts necessary to vesting of title had been performed — erroneous dismissal of complaint as matter of law.
    In an action in replevin to recover possession of certain securities in possession of defendant’s intestate at the time of his death, where the complaint simply asserted that plaintiff was and now is the owner of the securities and entitled to possession thereof, memoranda attached to such securities, found in a safe deposit box rented by intestate, in his handwriting, to the effect that they belonged to plaintiff, constituted evidence that all acts necessary to the vesting of title in her had been performed and it was error to dismiss the complaint as matter of law. (Govin v. de Miranda, 140 N. Y. 474, followed.)

      Miller v. Silverman, 221 App. Div. 697, modified.
    (Argued February 16, 1928;
    decided March 27, 1928.)
    Appeal from a judgment, entered November 25, 1927, upon an order of the Appellate Division of the Supreme Court in the second judicial department, reversing a judgment in favor of plaintiff entered upon a verdict directed "by the court and directing a dismissal of the complaint.

      Harry Bijur for appellant.
    Plaintiff made out, at least, a good and complete prima facie case. (Govin v. DeMiranda, 140 N. Y. 474; DeWolf v. Williams, 69 N. Y. 621; Pichler v. Reese, 171 N. Y. 577; Equitable Trust Co. v. Keene, 111 Misc. Rep. 544; Gratwick v. Smith, 202 App. Div. 600; Raabe v. Squier, 148 N. Y. 81; Gangi v. Fradus, 227 N. Y. 452; Koester v. Rochester Candy Works, 194 N. Y. 92; Reed v. McCord, 160 N. Y. 330; Eisenlord v. Clum, 126 N. Y. 552; Cook v. Barr, 44 N. Y. 156.)

      Clarence De Witt Rogers for respondent.
    It was reversible error for the trial court to treat the memoranda in decedent’s handwriting as conclusive evidence that plaintiff was the owner of the. property in question. (Chamberlain v. Iba, 181 N. Y. 486; Champion v. Joselyn, 44 N. Y. 653; Cook v. Barr, 44 N. Y. 156; Matter of Gallagher, 153 N. Y. 364; Wadd v. Hazelton, 137 N. Y. 215; Gangi v. Fradus, 227 N. Y. 452; Koester v. Rochester Candy Works, 194 N. Y. 92; Eisenlord v. Clum, 126 N. Y. 552; Hannahs v. Hammond Typewriter Co., 158 App. Div. 620; Hudson v. Swan, 83 N. Y. 552; North Shore Boom Co. v. Nicom Boom Co., 52 Wash. 564; Gray v. Gray, 47 N. Y. 552; Matter of Housman, 224 N. Y. 525.)
   Kellogg, J.

This action, in replevin, was brought to recover the possession of certain securities which were in the possession of Edward A. New at the time of his death. The plaintiff, in her complaint, made no allegation as to the facts constituting her acquisition of title. She was content to assert that she was, at all the times mentioned in the complaint, and now is, the owner of the securities and entitled to the possession thereof. This allegation was denied by the defendant. On the trial, at the conclusion of the evidence, each side moved for the direction of a verdict. The trial judge directed a verdict for the plaintiff. The Appellate Division reversed and dismissed the action.

The securities were found, after the death of Edward A. New, in a safe deposit box in the vaults of a certain safe deposit company. An envelope containing certificates of stock in various corporations, issued to Edward A. New, was discovered in the box. Upon the outside of the envelope there had been written by New the words “All in envelope belong to Anna C. Miller.” Anna C. Miller is the plaintiff. Within the envelope there was a slip of paper upon which New had written: “ Whatever is in this envelope belongs to Miss Anna C. Miller.” There were also two packages of bonds in the safe deposit box. One contained bonds of the Baltimore and Ohio Railroad Company, payable to bearer. Attached thereto was a slip bearing words, written" by New, reading: “ These bonds of B. & 0. belong to Anna C. Miller. Edw. A. New.’” The other package contained bonds of the Tennessee Electric Power Company, payable to bearer. Attached was a slip bearing the words, in New’s handwriting: “ These bonds Tenn. Elect, belong to Anna C. Miller. Edw. A. New.”

The safe deposit box had been rented by Edward A. New in November, 1925. Prior to that time the plaintiff, Anna C. Miller, had a deposit box in the same safe deposit company. Frequently she and New had visited the vaults of the company; had removed the plaintiff’s box; had retired to a booth to open it; had handled the securities therein contained. After New had leased a box for himself, the two bad pursued the same course of action in reference to that box and the securities in -question which were contained therein.

In Govin v. de Miranda (140 N. Y. 474) there was considered the case of a testator who left certain bonds in an envelope upon which there appeared a declaration by him that they belonged to the plaintiffs in the action.

The court held that the ownership of the plaintiffs had-been proven thereby. It said: “We must infer from that language that they came to the ownership of the plaintiffs in some legal way — by purchase or gift from some one;; and if there was nothing else in the paper qualifying, the> declaration no one would dispute that it furnished absolute evidence of their ownership of the bonds.” In our cW; as in the Govin case, the plaintiff is contending, not that the memoranda were in themselves sufficient instruments of transfer, but that they constituted evidence that all acts, necessary to the vesting of title in her, had been performed. There can be no doubt of the correctness of the contention. If other evidence indicated that Edward A. New had originally owned the securities, then the memoranda proved all the facts of a lawful transfer. If a transfer by gift was indicated, then they evidenced delivery as well as intention to give. The certificates of stock, which were issued in the name of New, although unindorsed by him, as well as the bonds, which were payable to bearer, were susceptible of transfer by a manual delivery with intention to give. (Westerlo v. De Witt, 36 N. Y. 340; Herbert v. Simson, 220 Mass. 480; Matter of 35% Automobile Supply Company, 247 Fed. Rep. 377; 20 Illinois Law Review, p. 9.) Moreover, there was ample opportunity to make the gift when the plaintiff and New made their visits to the vaults of the safe deposit company and jointly handled the securities in question. In Matter of Gallagher (153 N. Y. 364) the court considered a writing wherein a testator had declared his financial obligation to the plaintiff. It said: “ But as an admission it was competent evidence, although the testator retained it in his possession. An entry or memorandum made by a deceased person against bis interest, found in his books or papers, is in general admissible against his estate in favor of a party seeking to establish the fact stated. They are presumably truthful.” It may well be that in our case a trier of fact might consider that the declarations, as evidence of the plaintiff’s title, were outweighed by evidence of other facts, such as the fact that the securities were purchased by New, the fact that dividends and interest moneys upon the securities were received by New, and the fact that no other person than New possessed the key to the safe deposit box which held the securities. However this may be, the fact remains that no trier of fact, as yet, has ever so held. The Appellate Division made no findings of fact. It dismissed the action as a matter of law. We think that in the face of substantial evidence to the effect that the securities belonged to the plaintiff, the dismissal was error.

The judgment should be modified by granting a new trial and as modified affirmed, with costs to abide the event.

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

Judgment accordingly.