text:
    Martin Schnibbe et al., Respondents, v. Fred Glenz et al., Appellants.
    (Argued May 19, 1927;
    decided June 7, 1927.)
    Pleading —• real property — covenants — action to enforce restrictive covenant affecting real property —■ answer admitting facts alleged in complaint but denying that they constitute a violation of covenant neither sham nor frivolous — judgment on pleadings for injunction improperly granted in doubtful case.
    1. Where the answer, in an action to enforce a restrictive covenant affecting real property, admits the facts relied on to show the alleged violation, a defense that defendants are not thereby violating the covenants is neither sham nor frivolous. It goes directly to the merits.
    2. In such an action, where the question is presented whether, as matter of law, any use of a dwelling house for the purpose of conducting a real estate and insurance business therein destroys its character as a private dwelling house, judgment on the pleadings for injunctive relief should not be granted in a doubtful ease and in the exercise of discretion. The defendants have a right to put plaintiffs to their proofs and ask for the exercise of judicial discretion thereon.

      Schnibbe v. Glenz, 219 App. Div. 793, reversed.
    Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered February 2, 1927, which affirmed an order of Special Term granting a motion by plaintiff for judgment on the pleadings.

      Max Ehrlich for appellants.
    An answer containing matter of affirmative defense will not be stricken out as sham, but the party alleging it is entitled to the opportunity of a trial and to have the facts determined upon evidence in the usual manner. (Central Bank of Rochester v. Thein, 76 Hun, 571; Kirschbaum v. Eschmann, 205 N. Y. 127; Golde Clothes Shop v. Loew, 198 N. Y. Supp. 457; Emanuel v. Walter, 138 App. Div. 818; Hagedorn-

      Merz Co. v. Burns, 178 App. Div. 483; Soper v. St. Regis Paper Co., 76 App. Div. 409; Reese v. Walworth, 61 App. Div. 64; Barton v. Griffin, 36 App. Div. 572; Cook v. Warren, 88 N. Y. 37; Curran v. Arp, 141 App. Div. 659.) A restrictive covenant prohibiting the erection of any building other than a one-family dwelling is not violated by the use of part of such dwelling by the person occupying the same as such, for certain business purposes, where such business is not objectionable or offensive. (Smith v. Graham, 161 App. Div. 803; 217 N. Y. 655; Smith v. Scoville, 205 App. Div. 112; Tonnelle v. Hayes, 118 Misc. Rep. 339; Clark v. Jammes, 87 Hun, 215.) It is no more a violation of a restrictive covenant confining premises to dwelling houses for the owner of a dwelling house occupying it as such to conduct a real estate business on his own account therein, than it is for a physician, a dentist or a lawyer to maintain an office in his own home. (Hall v. U. S. Casualty Co., 125 Misc. Rep. 517; Smith v. Graham, 161 App. Div. 803; 217 N. Y. 655.)

      James P. Collins for respondents.
    The amended answer does not raise an issue. (Rochkind v. Perlman, 123 App. Div. 808.) The covenants and restrictions set forth in the complaint created a negative easement running with the land and were not merely to regulate the construction of the structure itself but its use as well, and the use, being restricted to a private dwelling house for one family only, is being violated by the conduct of a real estate and insurance business. (Cromwell v. American Bible Soc., 202 App. Div. 625; Baumert v. Malkin, 235 N. Y. 115; Barnett v. Vaughan, 119 N. Y. Supp. 45; 134 App. Div. 921; 197 N. Y. 541.)
   Pound, J.

This is an action to enforce a restrictive covenant affecting premises known as No. 220 Rutland road, at the comer of Rutland road and Rogers avenue in the city of Brooklyn. The restrictive covenant provides that the owner of these premises will not erect or cause or suffer or permit to be erected ” thereon any building or erection other than a private dwelling house for one family only.” The complaint alleges on information and belief that the defendant Fred Glenz has erected or caused to be erected over a door on the Rogers avenue side of said house owned by the defendants a sign reading F. Glenz, Real Estate,” and on the window north of said door the following: “ Real Estate and Insurance,” and on the window south of said door the following: Collecting and Managing; ” and that the said defendant, Fred Glenz, is conducting a Real Estate and Insurance Business in the said premises 220 Rutland Road, Brooklyn, New York.”

The answer contains denials of all the allegations of the complaint except the allegations of defendants’ title and that they took same subject to restrictive covenants and that defendant Fred Glenz had caused to be erected a sign over the door of defendants’ premises on Rogers avenue reading, “ F. Glenz, Real Estate,” and is conducting a real estate and insurance business in said premises. The answer also sets up as a defense:

“Sixth. That prior to the commencement of this action and on or about the 25th day of March, 1926, the defendants purchased from one Frank P. Bristley and Harriet C. Bristley, his wife, certain premises known as #220 Rutland Road, Brooklyn, New York, and received a deed therefor in which said premises were conveyed subject among other things to covenants and restrictions as therein set forth.
“Seventh. That the said building so purchased as aforesaid was erected and constructed in compliance with the covenants and restrictions affecting the said premises and in no way or manner violates the same.
“Eighth. That the defendants herein are now occupying said premises lawfully as a one-familv dwelling and that nothing maintained by the said defendants or either of them in said dwelling in any way violates the covenants and restrictions affecting the said premises.”

On plaintiffs’ motion for judgment on the pleadings under rules 103,104 and 112 of the Rules of Civil Practice the court struck out, quite properly, all of defendants’ answer except the paragraphs sixth, seventh and eighth above set forth, on the ground that the denials as to matters of record were of knowledge or information sufficient to form a belief and that the denials of matters within the personal knowledge of defendants were on information and belief and were insufficient. (Kirschbaum v. Eschmann, 205 N. Y. 127; Harley v. Plant, 210 N. Y. 405.) It also granted judgment “ that the defendants Fred Glenz and Katie Glenz, his wife, their agents, attorneys, servants, tenants and all other persons claiming by, through or under them or either of them be forever restrained and prohibited from erecting or suffering or permitting on any part of the premises situated at the southwest corner of Rutland Road and Rogers Avenue having a frontage on Rutland Road of twenty-three (23) feet with a uniform depth of one hundred (100) feet and known as /220 Rutland Road, any building or structure other than a private dwelling for one family only and from using and occupying the same for any purpose other than as a private dwelling for one family only and the said defendants are further ordered and directed to remove the signs on the side of said house.”

The answer contained no denial of the allegation of the complaint: “ on information and belief that the said defendant Fred Glenz is conducting a real estate and insurance business in said premises.” The question is presented, although inartistically, whether the terms of the restrictive covenant have been violated so as to entitle plaintiffs, as matter of law, to the injunctive relief granted. Defendants adroit the facts relied on to show the alleged violation but allege that they are not thereby violating the covenants affecting the premises. The defense is neither sham nor frivolous. It goes directly to the merits. Construing the restrictive covenant as applying to use as well as construction (Baumert v. Malkin, 235 N. Y. 115, 124; Powers v. Padding, 225 Mass. 110, 114) the question remains: Does any use of the dwelling house for the purpose of conducting a real estate and insurance business therein, as matter of law, destroy its character as a private dwelling house?

The suggestion has been made in judicial opinions that some kinds of pe^onal business, such as that of a physician or a lawyer, may be carried on in one’s dwelling house without inconvenience to the neighboring property holders and without changing the general private character of the use of the building. (Smith v. Graham, 161 App. Div. 803, 809; affd., on opinion below, 217 N. Y. 655.) Doubtless thw may become a matter of degree, so that we refrain from holding that the complaint does not state a cause >i action, but it does not follow that if a physician sees his patients or a lawyer meets his clients at his house in a room which he calls his office, he thereby destroys the character of.his home as a private,dwelling house in the usual meaning given to such words. Music schools (Baumert v. Malkin, supra) and private hospitals (Barnett v. Vaughan Institute, 197 N. Y. 541) which destroy the private character of the dwelling and offend the neighbors, differ widely from the case presented.

Defendant Fred Glenz was permitted to read his affidavit, which is recited in the order, to the effect that he occupied the house solely and exclusively as a private dwelling house; that he had a desk in a room in the basement at which he conducted such little real estate transactions as came to him; that the entrance thereto is on the Rogers avenue side of the property which is a business street. It may well be that this affidavit was not properly before the court except as a basis for leave to serve an amended answer, but it is in the record and throws some light on the nature of the business carried on by the defendant.

Judgment on the pleadings granting injunctive relief should, not be granted in a doubtful case and in the exercise of discretion. On the bare facts set forth in the complaint it cannot be said that the judgment granted is inevitable. The defendants have a right to put the plaintiffs to their proof, and to ask for the exercise of judicial discretion thereon.

The judgment of the Appellate Division and that of the Special Term should be reversed and plaintiffs’ motion for judgment on the pleadings denied, with costs in all courts.

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

Judgment accordingly.


source: Caselaw Access Project

author: Crane, J.

license: Public Domain

text:
    Ice Service Company, Inc., Respondent, v. Henry Phipps Estates, Appellant.
    Real property — lease — appraisal — provision in lease of real property for appraisal of value of building, which “ shall be final and conclusive ” — appraisal may not be set aside merely because witnesses or judges fix a higher or lower value than amount allowed — valuation final if appraisers acted reasonably, fairly and honestly.
    In an action to set aside an award of appraisers made under the terms of a written lease, providing that if it should not be renewed appraisers should be selected by the parties to appraise the value of the buildings whose decision “ sha'l be final and conclusive,” but which states no method for ascertaining the just and fair value of the buildings, where it appears that the appraisers went about their task in good faith and attempted in their way to ascertain the value of the buildings, their conclusion cannot be set aside merely because real estate experts fix a higher valuation or because the amount is higher or lower than judges would be inclined to allow. The valuation of the appraisers is final by agreement of the parties if they have acted reasonably, fairly and honestly and cannot be set aside unless they have mistaken their authority, departed from the submission, clearly misconceived their duties, acted upon some fundamental and apparent mistake or have been moved by fraud or bias. (Moore v. Eadie, 245 N. Y. 166, followed.)
    (Argued June 2, 1927;
    decided June 14, 1927.)

      Ice Service Co. v. Phipps Estates, 219 App. Div. 548, reversed.
    Appeal, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered March 22, 1927, reversing a judgment in favor of defendant entered upon a dismissal of the complaint on trial at Special Term and directing judgment in favor of plaintiff in an action to set aside the award of appraisers appointed pursuant to the terms of a written lease to determine the value of the buildings upon the leased lands.
    The following questions were certified:

      “ 1. Where the parties have entered into a lease in the form of Exhibits A and/or B annexed to the complaint, and have duly, selected appraisers for an appraisal of certain buildings, who in turn duly appointed a third appraiser, and two of the appraisers have made a decision as to the value of such buildings, is such decision final and conclusive, in the absence of fraud?

      “ 2. Under the said circumstances, should a decision by such two appraisers fixing a given value of the buildings be set aside upon the ground that those appraisers adopted an erroneous method or formula in arriving at such value?

      “ 3. Under the said circumstances, were the said appraisers constrained to make the appraisal of the buildings by determining the cost of reproduction and the actual depreciation in their availability for use at the time of their taking? ”

      Harold Swain, Percy S. Dudley and Arthur H. Indell for appellant.
    The lease in the instant case did not prescribe any definite rule or formula for the ascertainment of value by the appraisers. (Moore v. Eadie, 245 N. Y. 166.) There was no fraud or bad faith shown in the conduct of the appraisers or in the making of the appraisal. (Perkins v. Giles, 50 N. Y. 228; Masury v. Whiton, 111 N. Y. 679; Matter of Burke, 191 N. Y. 437.) In the absence of fraud or misconduct showing bad faith, a decision of appraisers, made under the terms of the lease, is binding and conclusive. (Moore v. Eadie, 245 N. Y. 166.)

      Edward B. Greene and G. Campbell Bechet for Sarah W. P. Williams, amicus curice.

      Walter Jeffreys Carlin for respondent.
    A decision of the appraisers, as to the value of a building, may be set aside where no fraud is proven. (Itob & Co., Ltd., v. Boyer Oil Co., Inc., 198 App. Div. 881; Sweet v. Morrison, 116 N. Y. 19; Wurster v. Armfield, 175 N. Y. 256; Freeman v. Ralph Realty Corp., 198 App. Div. 788; Hinkle v. Zimmerman, 184 N. Y. 114; Krauter v. Pacific Trading Corp., 194 App. Div. 672; Downing v. Lee, 98 Mo. App. 604; Williams v. Hamilton Co., 118 Misc. Rep. 799; Garr v. Gomez, 9 Wend. 649; Green & Coats Str. Co. v. Mone, 64 Penn. St. 79; Morgan v. Merchants Ins. Co., 52 App. Div. 61.) The appraisal should be set aside because the appraisers adopted a wrong rule of values. (Raleigh Coal & Coke Co. v. Manken, 87 S. E. Rep. 290; Wurster v. Armfield, 175 N. Y. 256; Van Beuren v. Witherspoon, 164 N. Y. 368; Springer v. Border, 210 Ill. 518; Brown v. Lyddy, 11 Hun, 451; Bath Gas Light Co. v. Claffy, 151 N. Y. 24; McLamm v. McLauchlin, 215 Fed. Rep. 345.; Stoddard v. Stoddard, 187 App. Div. 258; Uren v. Barker, 104 App. Div. 112; Doyler v. Hamilton Trust Co., 144 App. Div. 131; Mutual Life Ins. Co. v. Stephens, 214 N. Y. 488.)

      John Godfrey Saxe for trustees of Columbia University, amicus curice.

    Appraisals cannot be set aside because of an alleged erroneous theory. They are binding and conclusive in the absence of fraud. (2 Underhill on Landl. & Ten. 1271; 1 Halsbury Laws of England, 440; Matter of Cams, Wilson & Greene, 18 Q. B. D. 7; Norton v. Gale, 95 Ill. 533; Perkins v. Giles, 50 N. Y. 228; Fudickar v. Ins. Co., 62 N. Y. 392; Masury v. Whiton, 111 N. Y. 679; Sweet v. Morrison, 116 N. Y. 19; Wurster v. Armfield, 67 App. Div. 158; 175 N. Y. 256; Matter of Burke, 191 N. Y. 437; Matter of Fletcher, 237 N. Y. 440; Moore v. Eadie, 245 N. Y. 166; Williams v. Hamilton Fire Ins. Co., 118 Misc. Rep. 799.)
   Crane, J.

The decision of the Appellate Division in this case was rendered before we had handed down our decision in Moore v. Eadie (245 N. Y. 166). We there held that appraisers appointed to value buildings under a lease similar to that in this case were not confined to a single method of valuation in the absence of any instruction on the subject or anything in the lease indicating otherwise, as long as they acted fairly and within the terms of the submission. Their report, we held, must be final, in the absence of fraud or a clear misconception of their duties, especially where the parties had agreed to make the action of the appraisers final. We did not in that-case attempt to state all the instances in which the findings of appraisers may be attacked or set aside by a court of equity. It must necessarily depend upon the agreement and the intention of the parties. We did hold, however, that where parties had submitted to appraisers the question of valuation without instructions or intimation as to how it should be determined, making their finding final and conclusive, the determination of the appraisers would not be set aside by the courts if they acted in good faith as honest seekers after the truth. (Monidah Trust v. Arctic Construction Co., 264 Fed. Rep. 303.) It is not expected in such a submission that the appraisers will proceed according to legal evidence or the forms and methods of a judicial proceeding. It is their fair estimate which the parties agree to take for the very purpose of avoiding the delay and expense of litigation. The whole spirit and purpose of such an appraisal is that it shall be a ready adjustment by third parties familiar with the facts and circumstances and the nature of the property involved. Appraisers examine the improvements and may act on their own judgment. (Pearson v. Sanderson, 128 Ill. 88; and Underhill on Landlord & Tenant, vol. 2, pp. 1271, 1272, sect. 746.) Upon examination of the facts in this case we agree with the Special Term that the appraisal as made should stand.

The lease was made in 1902 between predecessors of the parties to this action for the term of twenty-one years at the yearly rent of $1,500. It was the extension of a prior lease containing the same terms and conditions made in October of 1882. The lessor had the option at the end of the term of renewing the lease or of terminating it and paying for buildings which had been erected upon the property by the lessee. The lease reads: “ OR, then pay to the said party of the second part, its successors or assigns, the just and fair value to be ascertained as hereinafter provided, of any building or buildings, which then may be standing on the said premises. And in order to ascertain the value of any such building, or buildings, or what augmentation of rent, if any, should take place in case of granting such new lease, in case the parties should be unable to agree, each party shall nominate one fit and impartial person on or their part, respectively, to value such building, or buildings, in their then actual condition: * * * and if the two persons to be so nominated shall differ in judgment as to either of said subjects, they shall appoint one other fit and impartial person to be associated with them for such purpose, and the decision of any two of the three persons so to be chosen as to the value of said building, or buildings, or the amount of such annual rent, shall be final and conclusive.” The lease then contains the method by which the rental shall be ascertained for a renewed term; it states no method for ascertaining the just and fair value of the buildings.

The lessor decided not to renew the lease, and appointed Frederick D. Hollister as the appraiser chosen by him. The tenant appointed King A. Harvie. These two being unable to agree, selected Theodore E. Rhoades, vice-president and general manager of the Fred F. French Company, as a third appraiser.

The property is located at the southeast corner of Fifty-seventh street and Avenue A in the borough of Manhattan, city of New York. It consisted of brick buildings and a one-story shed. The building on the corner, a five-story building, had formerly been used for a store on the ground floor, and apartments above, but the plaintiff had boarded up the store, and turned the building into a stable for its horses. The building was no longer used for apartments; the floors were turned into stalls.

The first two appraisers were far apart in their figures as to the value of these buildings which they at first attempted to value according to the method of reconstruction cost, less depreciation. When the third appraiser was appointed he held a consultation with the others, and asked them to submit briefs stating their views, calculations and conclusions, which they did. These appraisers were men of standing and experience in the community. They were familiar with the neighborhood and this class of property, also with the construction of buildings. No attempt has been made to attack the character or capacity of these men.

When the third appraiser received the briefs which he had requested, and which are part of the record, he also wrote a formal decision wherein he stated his views and conclusions, deciding that $10,000 was a just and fair amount to allow the lessee. He considered in his report the valuation arrived at by Mr. Hollister upon the basis of the value which the buildings on May 1, 1923, added to the land, and also the valuation of Mr. Harvie, figured on reproduction cost less depreciation. He does not agree fully with either of the views expressed, although considering both. Regarding the lessee's valuation, he says: Conversely, and to arrive at present sound value, I state that the restoration and alteration of these buildings to adequate structures for an equivalently useful purpose, upon which the normal factors of depreciation, deterioration and obsolescence would again begin to operate as from new structures, would involve the expenditure of the difference between $11,600 and the present-day reproduction costs of such new buildings, which reproduction costs would by no means be the unit per cubic foot estimated by the representative of the Lessee.” These buildings had been turned from an apartment house into a home for horses.

The reference to these written reports and briefs submitted by the appraisers indicates at least that they went about their task in good faith and attempted in their way to ascertain the value of the buildings according to the peculiar circumstances of the case.

It must be self-evident that it would be unfair to compel the owner to take these buildings at the price which it would cost to reconstruct them less depreciation. The cost of building has very much increased in the last twenty-one years. It is apparent that they would have to be reconstructed at least as apartment houses. No one else would use the stable now in the tenement. The neighborhood, it is said, is such that in their present condition the buildings are of no value to the owner. There may be circumstances where “ sound value ” would be a fair value; again, there may be instances where the value which the buildings add to the land may be the fair way to reach a conclusion. As we said in the Eadie case, appraisers may consider the valuations according to both of these methods, or according to any other method which seems to them .fair and reasonable. The parties could have stated the method of valuation if they had decided to do so. They left it to the experience and fairness of the men to be selected. It is not necessary for appraisers to fix a value which can be sustained and justified by evidence in a court of law. Their valuation is final by agreement of the parties if they have acted reasonably, fairly and in an honest attempt to get the real and true valuation. Their conclusion cannot be set aside by a court of equity merely because real estate experts on a hearing in court fix a higher valuation, or because the amount is higher or lower than we or other judges would be inclined to allow. The parties have made the appraisers the judges — the court of last resort — unless they have mistaken their authority, departed from the submission, clearly misconceived their duties, acted upon some fundamental and apparent mistake, or have been moved by fraud or bias.

We do not see from this record that the plaintiff has proved such unfairness as, within the rules indicated, would justify the courts in granting relief.

The Appellate Division, therefore, was in error in setting aside the judgment of the Special Term and in holding that the appraisers were bound to find the sound value ” of these buildings.

The Appellate Division reversed the eleventh and thirteenth findings of fact, but left standing the twelfth finding, which was that Rhoades and Hollister had decided that the sum of $10,000 was the just and fair value of the buildings. No new findings were made by the Appellate Division. The decision as left by the Appellate Division would in itself justify a dismissal of the complaint. We, however, have considered this case in the light of what clearly was the intention of the Appellate Division, as stated in its opinion.

The judgment, therefore, of the Appellate Division should be reversed and that of the Special Term affirmed, With costs in the Appellate Division and in this court. The third question is answered in the negative and the others unanswered.

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

Judgment accordingly.


author: Andrews, J.

text:
    The People of the State of New York, Respondent, v. Paul Phillips, Appellant.
    (Argued June 2, 1927;
    decided June 14, 1927.)
    Crimes — disorderly conduct • — ■ evidence — causing crowd to collect — insufficiency of evidence to warrant conviction.
    1. To sustain a conviction upon a charge of disorderly conduct, in that defendant walked up and down upon the sidewalk in front of complainant’s place of business, causing a crowd to collect, there must be some evidence that defendant did collect a crowd and where the place was Broadway and Twelfth street in the city of New York, the time morning, the sidewalk ten or twelve feet wide and the testimony is that the crowd consisted of “ two or three or four or five or so on,” it is insufficient within the meaning of section 722 of the Penal Law, providing that a person is guilty of disorderly conduct who, in a city of 500,000 inhabitants, “ by his actions causes a crowd to collect.”
    2. A ruling that if there was no strike and defendant was marching up and down in front of complainant’s place of business he was guilty of disorderly conduct is erroneous.
    Appeal, by permission, from a judgment of the Court of Special Sessions of the city of New York, entered December 18, 1926, which affirmed a judgment of a Magistrate’s Court in the borough of Manhattan convicting the defendant of disorderly conduct.

      Charles Solomon and Louis P. Goldberg for appellant.
    The offense of disorderly conduct tending to a breach of the peace was not proven. (People ex rel. Clark v.
      Keeper, etc., 176 N. Y. 465; People ex rel. Leary v. Levy, 186 App. Div. 444; People v. Fogel, 167 App. Div. 550; People ex rel. Frank v. Davis, 80 App. Div. 448; People ex rel. Gordon v. Superintendent, 65 Misc. Rep. 653; People v. Arko, 199 N. Y. Supp. 402; Reed Co. v. Whiteman, 238 N. Y. 545; Foster v. Retail Clerks Protective Assn., 39 Misc. Rep. 48; Segenfeld v. Friedman, 117 Misc. Rep. 731.) The finding of the magistrate that the defendant was guilty of disorderly conduct is against the weight of evidence. (People ex rel. Bungart v. Wells, 57 App. Div. 140; People v. Arko, 199 N. Y. Supp. 405; People ex rel. Frank v. Keeper, 38 Misc. Rep. 233.)

      Joab H. Banton, District Attorney (William B. Moore of counsel), for respondent.
   Andrews, J.

The defendant was convicted of the crime of disorderly conduct as defined in section 722 of the Penal Law. This provides that a person is guilty of such an offense, who in a city of 500,000 inhabitants with intent to provoke a breach of the peace or by actions whereby a breach of the peace may be occasioned, (1) uses offensive, disorderly, threatening or abusive language, conduct or behavior, (2) acts in such a manner as to annoy, disturb, interfere with, obstruct or to be offensive to others, or (4) by his actions causes a crowd to collect. As the respondent states, this conviction was under a complaint which charges disorderly conduct under one of these definitions and then proceeds to allege the acts constituting the offense, namely, “ that said defendant did then and there walk up and down upon the sidewalk in front of deponent’s place of business, causing a crowd to collect in front of deponent’s place of business.” To sustain the conviction, therefore, there must be some evidence that he did collect a crowd. We are told that a crowd is a throng, a great number of persons, a multitude. At best the word is indefinite. Difference in time and place may shape its meaning. A crowd at midnight might not be a crowd at noon. A crowd in a country schoolhouse might not be a crowd in Washington Square, but there is always implied in the word numbers with reference to the hour and location. Here we have á sidewalk ten or twelve feet wide at Broadway and Twelfth street during the morning. The complainant says this is all the testimony on the subject, that the crowd consisted of two or three or four or five or so on.” Interpreting this evidence in favor of the defendant two would hardly be a crowd within the meaning of this section of the Penal Law, nor would five be so considered, even though we were to take that number.

Without reference to the question whether there is the slightest evidence from which it might be inferred either that Phillips collected those who did collect with intent to provoke a breach of the peace or that a breach of the peace would naturally result from what he did, the conviction is not based upon the evidence. It seems to rest upon the erroneous idea expressed by the magistrate that “ if there is no strike and he is marching up and down in front of this place of business he is guilty of disorderly conduct.”

The judgment of Special Sessions and that of Magistrate’s Court should be reversed and the complaint dismissed.

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

Judgment accordingly.


text:
    The People of the State of New York, Respondent, v. Walter L. Wilcox, Appellant.
    (Argued June 6, 1927;
    decided June 14, 1927.)
    Crimes — murder — trial — evidence — trial of indictment charging defendant with murder in second degree —■ dying declarations — material error to reject testimony tending to show mental condition of dying man at time of making statement — cross-examination of witness who had testified to alleged confession — material error to refuse to permit defendant’s counsel to question witness as to different statements made by him before grand jury as shown by minutes.
    1. Upon trial of an indictment charging defendant with the crime of murder in the second degree, where the case against him depended in part upon the dying declarations of the man killed, it was material error for the trial court to reject testimony tending to show the latter’s mental condition, its weakness, uncertainty and confusion, at the time of making the alleged statement.
    2. It was also error to sustain objections to questions asked by defendant’s counsel, on cross-examination of a witness who had testified to an alleged confession, as to different statements made by him on the same subject in his testimony before the grand jury, as shown, by its minutes. The defendant was entitled to prove that the witness had sworn differently before the grand jury, and, where the case rests almost entirely upon alleged confessions, the error was not cured by permitting the witness to state that he did not recollect having made a different statement. The defendant was entitled to prod his memory as to his testimony before the grand jury and to ma.ke him admit, if possible, that he had made such a statement.

      People v. Wilcox, 220 App. Div. 732, reversed.
    Appeal, by permission, from a judgment of the Appellate Division of the Supreme Court in the second judicial department, entered April 14, 1927, which affirmed a judgment of the Orange County Court rendered upon a verdict convicting the defendant of the crime of murder in the second degree.

      Abram F. Servin for appellant.
    The statement of Hadden was not admissible as a dying declaration; but, in any event, defendant was prejudiced by being precluded from proving the mental condition of the declarant and by the charge of the court regarding its weight as evidence. (People v. Sarzano, 212 N. Y. 231; Donnelly v. State, 26 N. J. L. 463; People v. Shaw, 63 N. Y. 36; People v. Smith, 172 N. Y. 210; People v. Falletto, 202 N. Y. 494; House v. State, 94 Miss. 107.) The statement of Wilcox to the State trooper, Grimes, and those to the policeman, McCoach, could not be regarded as confessions; they were, however, treated as such, and the defendant was further prejudiced by the refusal of the court to allow contradictory statements of McCoach to be shown. (New York Guaranty & Indemnity Co. v. Gleason, 78 N. Y. 503.)

      Elmer H. Lemon, District Attorney (Henry Kohl of counsel), for respondent.
    The statement of Hadden was a dying declaration and admissible as such. (People v. Becker, 215 N. Y. 126; People v. Falletto, 202 N. Y. 494; State v. Wilkes, 213 S. W. Rep. 118; People v. Rulia Singh, 188 Pac. Rep. 987; Brotherton v. People, 75 N. Y. 159.)
   Crane, J.

Walter L. Wilcox, the defendant, on the 11th day of August, 1925, kept a roadhouse on the Bloomingdale road in the town of Wallkill. He had a bar and a barkeeper, named Richard Bender, and sold beer and soft drinks. His housekeeper was a married woman named Eva Oliver, who was not living with her husband. In the early morning of the day mentioned, one Walter Hadden, a resident of Middletown, was shot with a shotgun while on the grounds at the side of the house, and this defendant has been convicted of murder in the second degree for causing his death, and sentenced to State’s prison for a term of twenty years to life. The Appellate Division, in aflfiming the conviction, did so pursuant to section 542 of the Code of Criminal Procedure, which requires appellate courts to give judgment without regard to errors which do not affect the substantial rights of the parties.

What errors on a trial do affect substantial rights of the parties is many times a very troublesome question. We referred to this in People v. Purtell (243 N. Y. 273). No human institution is perfect, and we cannot expect perfection upon the trial of criminal cases. As the best minds at times will differ as to what is error, so they will differ as to the materiality of conceded error. The differences among ourselves have taught us to consider questions from every available point of view, and to be slow to overturn the conclusions of others. There comes a time, however, when not to have an opinion and not to express it is to abdicate both the duty and the responsibility of judicial office. I have come to the conclusion that errors were committed upon this trial which affected the substantial rights of the defendant, and require a reversal of the judgment. '

To state my reasons for thinking that these errors are too serious to be overlooked I must briefly state the facts of this case, as error is in many instances a relative term. Its seriousness depends upon the nature of the evidence and the strength or weakness of the case. An error in a judge’s ruling which would be serious in one case might be ignored as immaterial in another. What effect evidence may have upon the minds of a jury is impossible to determine except as each one of us takes himself as the standard. We all know how at times little things sway the balance and move us to a conclusion; even at times cause us to change a rather fixed conviction. At the best, we can only rely upon our. reason and our judgment.

On the night in question, along toward midnight, two young men, one named Otto Snyder, and the other, Walter Hadden, were in the defendant’s roadhouse drinking. beer at its bar. Snyder had trouble or an argument with the bartender. As a witness for the prosecution, he admits it, and states that after this trouble he and Hadden went back to Middletown in an automobile, where he procured his revolver, a .45 automatic, and plenty of ammunition. They drove to Hadden’s house, where it may be fairly inferred that Hadden got a gun, a .32 caliber revolver, as he had it at the time of the shooting. Snyder also testifies that he and Hadden returned to the defendant’s roadhouse on the Bloomingdale road, and demanded admittance. Lewis, known as Anthony L. Cuneo, a deputy sheriff of Sullivan county, met them as they were trying to get into the place. Wilcox had closed up for the night. Lewis was on his way home when he met Snyder and Hadden, and he testifies: Snyder came up to me and asked me if I would have a drink with him. I told him that Wilcox had just closed up and put us out, and I did not think we could get in. ' I am going home, and I do not want any more.’ He says: ‘ If we do not get in, we will make him open up — I have got a gun and if he does not give us a drink,’ he says, ‘ I will shoot the place up.’ ”

These two young men did not heed this warning, pounded at Wilcox’s back door and demanded admittance at the point of the revolver. Lewis, or Cuneo, swears that Wilcox came to the door and said to Snyder: “You here again; you had trouble here tonight before, and I told you never to come back or to put your foot on my premises again.” Now at this point and under these circumstances as to which there is no dispute, as they are a part of the People’s case, the defendant Wilcox had certain rights. He was in his own home which was as sacred in the eyes of the law; although it were a roadhouse, as any other home. If Wilcox were selling beer illegally, that was a matter for the public authorities; it had nothing to do with this case, and gave to Snyder and Hadden no liberties or privileges. Therefore, I say Wilcox’s roadhouse was his home, like any other man’s home, which he had a right under the law to protect against intruders. He had a right to prevent Snyder and Hadden from coming into his place and could use force and violence to keep them out, even to the point of killing them, if it were necessary, or he had good reason to believe it to be necessary. When he ordered them away, they should have gone, and when at the time Bender knocked Snyder down and took his pistol away from him, and Wilcox grabbed Hadden and made him drop his pistol by choking him, both Wilcox and Bender were acting within their rights under the law.

When Bender grabbed Snyder, Snyder’s pistol went off, which frightened Mrs. Oliver, who was in the house. She said she appealed to the deputy sheriff of Sullivan county to protect her, and to protect Wilcox, whom she thought the two assailants were killing. Up to this point, no one had any firearms except Snyder and Hadden. Snyder pulled himself together and went toward his car; Hadden was running toward the front of the house, from the back to the front, when he was shot from the front porch of the house, or from that direction by shot from a shotgun. All of the above incidents concededly took place on the back porch of the roadhouse. Snyder and Hadden tried to get in the back door. The last seen of Wilcox and of Bender was at the back porch or the rear of the house. Snyder had been disarmed; Hadden, if he had a pistol, had dropped it; both were leaving the premises when this shot from the shotgun came from the front of the house, apparently from the front porch. Who had the shotgun; who fired it? That was the question in this case for the jury to determine. The testimony for the People placed the defendant and Bender at the rear of the house, or on the back porch. Some of the witnesses for the defendant say that Wilcox was in the rear when the shotgun went off; but whether he was or not, the People failed to prove that he was anywhere else. That was the last seen of him and then he was there concededly struggling with Bender to eject the trespassers.

Wilcox had two shotguns upstairs in his bedroom. Mrs. Oliver says that when Snyder’s pistol went off and she became frightened, she asked Lewis, the deputy sheriff, to help them — to protect them, and that she and he went up and got a shotgun; that Lewis took it, and left her at the foot of the stairs. So far as the evidence in this case goes, the only two persons who had a shotgun were either Mrs. Oliver or Lewis.

If the People had proved nothing more than what I have thus far related, the defendant could not have been convicted of any crime. There was nothing connecting him with the shooting. The People’s case, therefore, rested with these facts of course as a background, upon an alleged dying declaration of Hadden and an alleged confession made by the defendant Wilcox. These two pieces of evidence, therefore, were all important, both to the People and to the defendant. The case against the defendant we are justified, I think, in saying depended upon the dying declaration and the confession.

Now first as to the dying declaration. Hadden was taken to the Thrall Hospital in Middletown where he was attended by Dr. Samuel Mills who heard a conversation between him and' Officer Finn, which is the alleged dying declaration. At the time of his talk with .Finn, Hadden was suffering from shock, and evidently bleeding internally. In answer to the public prosecutor, the doctor testified that Hadden was very pale, his finger nails were blue, he was cold to the touch, and was moaning most of the time. He died within about fifteen or twenty minutes after making the statement to Finn. He must have been very weak, and growing weaker. Now what was the statement that the doctor heard? Hadden told Finn that Dick Bender shot him. As this is important in my judgment, let me quote the testimony.

“ Q. Finn asked Hadden who shot him? A. Yes.
“ Q. And he said that Dick Bender had shot him? A. Yes, first.
“ Q. How many times did he say that Dick Bender had shot him? How many times was that statement made by the deceased, that Dick Bender shot him? A. Several times. •
“ Q. On all these occasions when he said, Dick Bender shot me,’ they were in response to questions asked by Finn as to who had shot him? A. Yes.”

Hadden at best had only fifteen or twenty minutes to live. He was being asked these questions by Finn. Why did Finn keep repeating the questions, and why did Hadden keep repeating several times that Bender killed him? Was Finn trying to get him to change the statement? Hadden must have been growing weaker every minute. Finally, when the officer said: “ Boy, you have been shot with buckshot,” Hadden changed his statement and said: “In that case, Walt Wilcox shot me.”

“ Q. It was only after Officer Finn made some statement that ‘ You are shot with shot ’ that the boy changed his statement? A. It was.”

Considering these declarations of Hadden as dying declarations, as statements of fact, we have two statements; the first insisted upon and repeated several times that Bender shot him, changed to the defendant, Wilcox, after a suggestion made by the officer. Did the boy change his statement because of the persistence of the officer, to have a little peace in his dying moments? Was his mind clear; did he speak with distinctness? All these things were very important, for it was the heart-spot of the case. From it flowed all the consequences to this defendant. The People had shown on direct examination the physical condition and weakness of Hadden. The defendant’s counsel sought to bring out Ms mental condition; its weakness, uncertainty and confusion, and at the very tMeshhold of Ms attempt, he was stopped by the trial judge on Ms cross-examination of Dr. Mills. Q. Is it a fact that at the time tMs conversation occurred tMs young man was in a very weak condition? A. He was.

Q. Close to death? A. Yes.
“ Q. His statements were confused, were they not? [Objected to and excluded over exception.]
“ Q. Was he in a dazed condition? [Objected to and excluded over exception.]
“ Q. I asked you if Ms statements were more or less confused? [Same ruling and exception.] ”

In my judgment tMs was error of a very substantial nature. I do not say and cannot say that the doctor’s answers would have changed the verdict of the jury; who can tell? I do think that the defendant’s counsel had the right to examine the doctor on the mental condition of the deceased at the time of the statements, and I know that tMs was a very important part of the case, as the conviction must rest in part upon the force of the dying declaration. Without the dying declaration, the case against the defendant would be very much weaker.

We now take up the alleged confession of the defendant. At no time did he make an unqualified confession; it was a conditional one. The State troopers came to the place that morning, and one of them, Andrew Grimes, had a talk with the defendant. He found the shotgun wMch had been used, so he says, and asked the defendant about it. The defendant denied having used it. The officer then reasoned with the defendant by saying that he might just as well admit it, for it might have been a case of self-defense as these men, meaning Snyder and Hadden, had guns. Whereupon, the defendant said: In that case, I will say I shot him.” He did not say that he shot Mm, but used the expression, I will say I shot him.” Later he told Grimes that he did not do the shooting ■ — that Tony Lewis did it; that he had told Grimes that he did it to cover up Tony Lewis. He was asked: Did you tell him on the back porch that he had a perfect defense in self-defense? A. I told him words to that effect, yes.”

This was followed by the testimony of the chief of police, John D. McCoach, who appears to have known the defendant and had a talk with him in the locker room at police headquarters. He testified: When I went in the locker room at police headquarters, I said to him: 1 Well Walt, you got the wrong boy last night,’ and he said: I guess I did,’ and then he says: Do you mean to say I shot him,’ and I said: Certainly,’ and then he said: Hasn’t a man got a right to' defend his own castle,’ and I said: £ Under certain circumstances,’ and he said: You are wrong.’ ”

The officer said he committed these words to memory, and yet the frailty of the human memory is made evident by the testimony of the next witness, LaPolt, clerk to the common council and all boards of the city of Middle-town, who was present in the station house when the conversation took place between McCoach and Wilcox. He left out at first in his statement the phrase Under certain circumstances,” and makes better sense and a clearer statement by giving the conversation in this fashion. “ ‘ Well, Walt, I think you got the wrong boy last night,’ to which Wilcox replied, £ Yes, I guess I did.’ The chief proceeded to his own locker and during the interval between the response of Wilcox, the chief arrived at his own locker and then Wilcox said: You don’t mean to say that I shot the boy,’ one word or the other, and the chief said: Certainly,’ and Wilcox said: £ Well, you are wrong.’ ” Later he puts in the phrase about defending one’s castle, but says that the defendant used it after, and not before “ Well, you are wrong.” This transposition of this phrase makes considerable difference, and it at least shows that two men hearing the same thing at the same time and under the same circumstances could not state it alike, and that one version at least was more favorable to the defendant. McCoach was cross-examined regarding this statement which he says he committed to memory and was asked: “ I will read question and answer and ask you if you so testified.

“ Mr. Kohl: What are you reading from?
“ Mr. Oakes: Grand Jury Minutes.
“ Mr. Kohl: I object to it on the ground that it was improper. The Grand Jury minutes only furnished for the purpose of making motions to dismiss the indictments.
“ The Court: Objection sustained [exception].”

Mr. Oakes later on again took up this branch of cross-examination and said: “ I think perhaps your Honor will rule upon this subject, but in order to protect the rights of the defendant, I desire to make the formal record:

“You testified before the Grand Jury in this matter?
“ Mr. Kohl: I object to any reading from the grand jury minutes.
“ The Court: Objection sustained.
“ Mr. Oakes: Exception.
“ Q. At that time was this question asked you and you made this answer? [Same ruling and exception.] ”

It appears that this witness before the grand jury had added a very important sentence to the defendant’s conversation with him. It was his earliest recollection of the talk with the defendant in the locker room. He swore before the grand jury that the defendant had said: " If I had a gun, there would have been something doing. Hasn’t a fellow the right to defend his own castle under certain circumstances? ” This was far from a confession; rather a denial, and gives an altogether different meaning to the defendant’s conversation. The defendant was entitled to prove that McCoach had so sworn under oath on another occasion. As this case rests almost entirely upon these alleged confessions, this error in my judgment was not cured by permitting the witness to state that he did not recollect having made such a statement on another occasion. The defendant was entitled to prod his memory as to his testimony before the grand jury and to make him admit, if possible, that he had made such a statement. Moreover the defendant having the grand jury minutes was entitled to prove that McCoach had so testified.

Other errors were committed upon this trial which I think would require reversal, but as some of my associates think otherwise I will not discuss them. Sufficient for the present purpose to say that I have given my reasons why I think we cannot overlook these two errors. They were substantial, and materially affected the defendant’s rights in this particular case. He is entitled to a new trial. The judgments should be reversed and a new trial ordered.

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

Judgments reversed, etc.


author: Pound, J.

text:
    The People of the State of New York ex rel. The Williamsburgh Savings Bank, Respondent, v. The State Tax Commission, Appellant.
    Tax — mortgage tax — mortgage on plot of land containing provision that mortgagee may substitute number of separate mortgages •— new mortgages made between same parties covering subdivision of land supplemental and exempt from recording tax — new mortgages made by grantee of original mortgagor new obligations and subject to tax.
    Where a mortgage covering a parcel of land contains a provision that the mortgagee, its successors or assigns, may replace the mortgage by a number of others, each to cover a portion of the premises, such substituted mortgages, if they are made pursuant to that provision, will be regarded as supplemental in character and exempt from taxation under section 255 of the Tax Law (Cons. Laws, ch. 60), although the recorded primary mortgage is to be satisfied of record when the substituted mortgages are given, but where the owner of the land transfers the same prior to the execution of the new mortgages and they are made by the grantee, thus creating new obligations, section 255 does not apply and they are subject to the tax.
    (Argued May 31, 1927;
    decided June 14, 1927.)

      (People ex rel. Banner Land Co. v. State Tax Comm., 244 N. Y. 159, distinguished.)

      People ex rel. Williamsburgh Savings Bank v. State Tax Comm., 220 App. Div. 400, reversed.
    Appeal from an order of the Appellate Division of the Supreme Court in the third judicial department, entered May 10, 1927, which annulled on certiorari a determination of the State Tax Commission that a certain mortgage was not exempt from payment of a mortgage tax.

      Albert Ottinger, Attorney-General (Henry S. Manley of counsel), for appellant.
    The so-called supplemental mortgage created a new debt. (People ex rel. Banner Land Co. v. State Tax Comm., 244 N. Y. 159; People ex rel. U. S. Title Guaranty Co. v. State Tax Comm., 230 N. Y. 102.)

      Henry M. Bellinger and L. L. Osborn for respondent.
    The subsequent mortgage offered for record and recorded in the instant case was a “ supplemental mortgage ” within the meaning of section 255 of the Tax Law, and was not taxable. (People ex rel. Banner Land Co. v. State Tax Comm., 244 N. Y. 159; People ex rel. U. S. T. G. Co. v. State Tax Comm., 230 N. Y. 102; People ex rel. Home Mortgage Invest. Co. v. State Tax Comm., 182 App. Div. 699; Metropolitan Trust Co. v. State Tax Comm., 172 App. Div. 653; Matter of N. Y. State Gas & Elec. Corp. v. Gilchrist, 209 App. Div. 771; 240 N. Y. 552.)
   Pound, J.

On May 19, 1911, the Masief Building Construction Company, then the owner of the mortgaged premises, executed and delivered to New York Mortgage and Security Company a mortgage to secure the payment of $140,000 on premises situate in the borough of Brooklyn. This mortgage was recorded the following day in Kings county register’s office, and the full amount of the mortgage tax was paid. The mortgage contained this provision:

It is expressly understood and agreed that the party of the second part, its successors or assigns, if it so elects, may replace this mortgage by twelve permanent mortgages, each to cover a portion of the hereinbefore described premises, and which twelve mortgages shall be given as security for a sum aggregating the amount of the principal sum secured hereby.”

On August 23, 1912, the L. & M. Realty Company, which had become the owner of the property in question, executed twelve separate mortgages, each covering a portion of the same property. The twelve, apparently in varying sums, aggregated $134,750, being the amount of the original mortgage, less payment made on the principal: The question here relates to one of these mortgages given to secure the sum of $14,000. This mortgage was recorded August 26, 1912, and when presented to the recording officer it was accompanied by the affidavit of an officer of the mortgagee stating, in substance, that the mortgage was given pursuant to the provisions of the original mortgage; that there had been erected on the premises described in the first mortgage twelve separate buildings, and that the original mortgage was being satisfied when these additional, separate mortgages were given. The mortgage was accepted and recorded without the exaction of a further recording tax, the exemption being noted on the record; and so the matter stood for more than twelve years. On February 6, 1925, notice was given that claim for exemption had been denied and that a mortgage recording tax of $70 with a penalty of $70.40 were due and payable; and that no assignment, extension, release or satisfaction could be accepted for record until payment thereof was made. (Tax Law [Cons. Laws, ch. 60], § 258.)

In the meantime the $14,000 mortgage had been paid and a new mortgage for $12,000 given to the relator, which, it is said, in taking the new mortgage relied on the record standing for twelve years as evidence that the preceding mortgage was not subject to tax. Because of the non-payment of the tax on the $14,000 mortgage, the register refused to discharge it of record (Tax Law, § 258), and, therefore, the new mortgage appeared to be a second mortgage on the premises. Application was made to the State Tax Commission to determine the prior mortgage exempt from tax and permit its discharge, which was denied. This proceeding is to review that determination.

The question is whether the $14,000 mortgage is subject to the mortgage tax under section 253 of the Tax Law or is a supplemental mortgage executed pursuant to a provision in the original mortgage under section 255 of the Tax Law. Section 255 provides:

If subsequent to the recording of a mortgage on which all taxes * * * have been paid, a supplemental instrument or mortgage is recorded for the purpose of correcting or perfecting any recorded mortgage, or pursuant to some provision or covenant therein, or an additional mortgage is recorded imposing the hen thereof upon property not originally covered by or not described in such recorded primary mortgage for the purpose of securing the principal indebtedness which is or under any contingency may be secured by such recorded primary mortgage, such additional instrument or mortgage shall not be subject to taxation under this article, unless it creates or secures a new or further indebtedness or obligation other than the principal indebtedness or obligation secured by or which under any contingency may be secured by the recorded primary mortgage. * * * ”

As indicated by our decision in People ex rel. N. Y. Title & Mortgage Co. v. State Tax Commission (245 N. Y. 603), the substituted mortgages if they had been made by the original obligor pursuant to the provisions contained in the original mortgage, would be regarded as supplemental in character, although the recorded primary mortgage was to be satisfied of record when the substituted mortgages were given.

Another reason defeats the claim of exemption in this case. Section 255 of the Tax Law does not apply if the supplemental mortgage “ creates * * * a new * * * obligation other than the * * * obligation secured by * * * the recorded primary mortgage.” Here we have a new obligation, i. e., the mortgage of the grantee of the mortgaged premises. The mortgage is clearly taxable. One lien has been satisfied of record and destroyed. Another debtor has created another lien in its place. There is a new transaction with a new tax. (People ex rel. U. S. Title Guaranty Co. v. Tax Commission, 230 N. Y. 102.) The mortgage is clearly without the exemption contained in section 255 and is subject to the tax. The case is clearly distinguished from Peo. ex rel. Banner Land Co. v. State Tax Comm., (244 N. Y. 159), where the new mortgages were executed as collateral to the existing original primary obligation.

The order of the Appellate Division should be reversed and the determination of the State Tax Commission confirmed, with costs in this court and in the Appellate Division.

Cabdozo, Ch. J., Crane, Andrews, Kellogg and O’Brien, JJ., concur; Lehman, J., absent.

Ordered accordingly.


text:
    The People of the State of New York, Respondent, v. Solomon Cohen, Defendant, and Equitable Surety Company, Appellant.
    (Argued June 8, 1927;
    decided June 21, 1927.)
    Bail — statutory construction — retroactive statutes — amendatory statute providing that application for remission of forfeiture of bail must be made within one year not retroactive — forfeiture of bail before enactment of amendment — discretion of court to grant relief not cut ofi by amendment.
    1. Chapter 478 of the Laws of 1926, amending section 598 of the Code of Criminal Procedure, so as to provide that an application for remission of a forfeiture of bail “ must be made within one year after the forfeiture,”, should not be allowed to operate retrospectively so as to deprive a surety of the privilege it had when it gave the undertaking to ask to be relieved from the forfeiture.
    2. Where, therefore, an undertaking of bail, given before amendment of the statute, had been forfeited and judgment against the surety satisfied, and more than one year thereafter, after the amendment had gone into effect, the fugitive was arrested, tried and convicted, whereupon the surety made application for remission of the forfeiture, the discretion of the court to grant relief was not, as matter of law, cut ofi by the amendment.

      People v. Cohen, 220 App. Div. 774, reversed.
    Appeal from an order of the Appellate Division of the Supreme Court in the second judicial department, entered May 6, 1927, which reversed an order of the Kings County Court reinstating a prior order which vacated and set aside a judgment in favor of plaintiff and directed the comptroller of the city of New York to return to the appellant herein a sum paid in satisfaction thereof.

      Fred Flatow and David M. Berger for appellant.
    Chapter 478 of the Laws of 1926 amending section 598 of the Code of Criminal Procedure is not retroactive. (People v. Supervisors of Columbia County, 43 N. Y. 130; People ex rel. Eldred v. Palmer, 154 N. Y. 133; O’Reilly v. Utah,

      N. & C. Stage Co., 87 Hun, 406; N. Y. & Oswego R. R. Co. v. Van Horn, 57 N. Y. 473; People v. Wilson, 151 N. Y. 403; People v. Grundy, 218 App. Div. 541.)

      Charles J. Dodd, District Attorney (Henry J. Walsh of counsel), for respondent.
    The County Court was without power to make the original order vacating, discharging and setting aside the judgment in favor of the plaintiff. (People v. Grundy, 218 App. Div. 541; Harrison v. Union Trust Co., 80 Hun, 463.)
   Pound, J.

Code of Criminal. Procedure, section 597, provides for the remission by the court of the forfeiture of an undertaking or deposit given to secure the appearance of a defendant who has been admitted to bail. Code of Criminal Procedure, section 598, read as follows: § 598. Application therefor, how made and 'on what terms granted. The application must be upon at least five days’ notice to the district attorney of the county served with copies of the affidavits and papers on which it is founded, and can be granted only upon payment of the costs and expenses incurred in the proceedings for the enforcement of the forfeiture.” This section was amended by chapter 478, Laws of 1926, so as to provide that the application must be made “ within one year after the forfeiture of such undertaking or deposit is declared.” This amendment became law on April 17, 1926, to take effect July 1, 1926.

Equitable Surety Company on March 27, 1925, entered into an undertaking with the defendant in the sum of $2,500 to secure the appearance of Solomon Cohen to answer a charge of burglary under an indictment of the grand jury of Kings county. Cohen having failed to appear for trial, on April 14, 1925, the undertaking was declared forfeited and on April 23, 1925, judgment was entered against the surety in favor of the People of the State of New York for the amount thereof, which was paid and satisfied by the surety on November 9, 1925. On August 9, 1926, Cohen was apprehended by the surety, pleaded guilty and sentence was imposed. On August 19, 1926, application was made for the remission of the forfeiture to the County Court of Kings county. The district attorney appeared but did not oppose the granting of an order remitting the forfeiture. Thereafter on the motion of the district attorney the order was vacated and set aside. Thereafter on reargument the County Court vacated the vacating order and again directed the comptroller of the city of New York to return to the surety the amount paid by it. The Appellate Division on appeal reversed the order as matter of law and denied the motion.

Cohen was apprehended more than a year after the undertaking was forfeited. The question of law here presented is whether the amendment to section 598 is to be construed as operating retrospectively so as to .cutoff the privilege of the surety to apply to the court at any time for remission of the forfeiture.

The granting of such relief when applied for in time is addressed to the discretion of the court but the privilege to apply therefor was subject to no limitation when the undertaking herein was given. Section 954 of the Code of Criminal Procedure provides: “ No part of this code is retroactive, unless expressly so declared.” (See, also, Gen. Cons. Law [Cons. Laws, ch. 22], § 93.) This is in accord with the general rule for the construction of all statutes which, even in the form of rules of evidence or procedure, substantially affect the liability of parties, as we have recently held in Campbell v. N. Y. Evening Post Co. (245 N. Y. 320). Statutes of limitations are so construed, except where the contrary legislative intent is clearly shown. (Thomas v. Higgs & Calderwood, 68 W. Va. 152; Ann. Cases, 1912A, 1039, and note.) It is well settled,” said this court in Halsted v. Silberstein (196 N. Y. 1, 15), that a statute of limitations intended as a retrospective law must give a person reasonable time to enforce a remedy available to him before the bar of the statute will apply.” And the fact that the act affords a reasonable interval between its passage, or becoming a law, and its taking effect is not enough. (Gilbert v. Ackerman, 159 N. Y. 118.)

We are not dealing with a question of vested right. Assuming that the power of the court to grant remissions is given only as an act of grace which the Legislature may take away if it so declares its purpose, still the amendment should not be allowed to operate retrospectively so as to deprive the surety of the privilege it had when it gave the undertaking to ask to be relieved from the forfeiture. If, when the undertaking was executed, the company had known that it must apply for such remission within one year, it cannot ■ be said that its action would have been unaffected by such knowledge.

The discretion of the court to grant relief was not as matter of law cut off by the amendment thus read. That the first order of the court was regarded as a proper exercise of such discretion under the former provision of the Code appears from the failure of the district attorney to oppose the application. The order was granted as matter of course in ignorance of the existence of the amendment.

The order of the Appellate Division should be reversed and that of the County Court affirmed.

Cabdozo, Ch. J., Cbane, Andbews, Lehman, Kellogg and O’Bbien, JJ., concur.

Ordered accordingly.


author: Cardozo, Ch. J.

text:
    In the Matter of the Petition of S. Walter Kaufmann, Appellant, for Reinstatement as an Attorney and Counselor at Law. In the Matter of the Petition of Norvin R. Lindheim, Appellant, for Reinstatement as an Attorney and Counselor at Law.
    (Argued June 1, 1927;
    decided July 20, 1927.)
    Jurisdiction — attorneys — disbarment — quaere whether offense which is felony under Federal statute but only misdemeanor by State law requires disbarment of attorney — pardon opens door to inquiry by Appellate Division as to justness of conviction — erroneous holding by Appellate Division that it is concluded as to guilt by judgment of conviction — Court of Appeals precluded from directing judgment absolute in absence of finding by Appellate Division upon the merits.
    1. Quaere whether an offense against the Federal government, which is a felony under the United States Criminal Code but only a misdemeanor under the Penal Law of this State, is to be reckoned as a felony within the meaning of subdivision 3 of section 88 of the Judiciary Law providing for disbarment of any attorney and counselor at law who shall be convicted of a felony.
    2. Under subdivision 4 of section 88 of the Judiciary Law, providing that “ upon the reversal of the conviction for felony of an attorney and counselor at law, or pardon by the President of the United States or Governor of this State, the Appellate Division shall have power to vacate or modify such order or debarment,” a pardon opens the door to an inquiry by the Appellate Division as to the justice of the judgment of conviction. Upon application, therefore, for restoration to membership in the bar of former attorneys, disbarred after conviction in a Federal court of a felony, a hqlding by the Appellate Division that it is concluded as to their guilt of the crime of which they were convicted by the judgment of the United States courts and is without power to review the proceedings, is error.
    3. Until the Appellate Division by such methods of inquiry as it deems expedient has made inquiry as to the guilt or innocence of the petitioners and has made a finding upon the merits, the Court of Appeals is not at liberty to render judgment absolute. It is for the Appellate Division to reach in the first instance a definitive conclusion.

      Matter of Kaufmann, 213 App. Div. 555, reversed.

      Matter of Lindheim, 213 App. Div. 560, reversed.

      Appeal, in each of the above-entitled proceedings, by permission, from an order of the Appellate Division of the Supreme Court in the first judicial department, entered July 13, 1925, which denied an application for reinstatement as an attorney and counselor at law.

      William D. Guthrie and Abraham Tulin for appellants.
    The Appellate Division erred as to its jurisdiction and duty under the Judiciary Law. (Lyon v. M. R. Co., 142 N. Y. 298; Lamport v. Smedley, 213 N. Y. 82; Allen v. Stevens, 161 N. Y. 122; United States v. Wiley, 11 Wall. 508; Gertgens v. O’Connor, 198 U. S. 237; People v. O’Hearn, 196 N. Y. 221; Palmer v. Van Sanivoord, 153 N. Y. 612; Matter of Robinson,-209 N. Y. 354; Matter of -, an Attorney, 86 N. Y. 563; Matter of E., an Attorney, 65 How. Pr. 171.)

      Charles H. Strong for Association of the Bar of the City of New York.
   Cardozo, Ch. J.

The petitioners, while members of the bar of this State, were convicted in the United States District Court for the Southern District of New York of the crime of conspiracy under section 37 of the United States Criminal Code. The charge was that they had conspired with one Bumely, and with other persons whose names were to the grand jury unknown, to make a false report to the Alien Property Custodian as to the ownership of a note for $100,000 then in their possession. The report was to the effect that the note was the property of one Herman Sielken, who was an enemy alien within the definition of the Trading with the Enemy Act. The fact was charged to be that the note was the property of the Imperial German Government, and that this was known to the petitioners. Upon the trial of that charge, the prosecution did not even attempt to supply direct evidence of any guilty knowledge by the petitioners that the ownership of the note was other than as stated in the report. The case went to the jury upon the theory that there was circumstantial evidence of knowledge, or at least of what was characterized as imputed knowledge, the outcome of wilful blindness, of studied refusal to inquire, after suspicion has been aroused. It went to the jury, moreover, after a long trial which made it difficult to disentangle the evidence aimed at the petitioners from the evidence aimed.at Rumely, whose activities in aid of the German government were likely to arouse resentment in patriotic minds. Disentanglement was made harder by the instructions of the trial judge that at least two of the three defendants identified by name in the indictment for conspiracy must be found guilty before a verdict of guilt could be returned against any one of them. With such a charge, a jury stood in need of unusual poise of mind and power of analysis if it was to weigh the case against the petitioners dispassionately and separately. It had been placed in the dilemma of permitting all the defendants to go free or of imputing guilty knowledge to at least one of the attorneys. Placed in this dilemma, it found a verdict against all. The Circuit Court of Appeals, without power upon a writ of error to reverse for error in fact (Mounday v. U. S., 225 Fed. Rep. 965, 967), held that evidence of guilty knowledge was not lacking altogether. Instructions to the jury as to the effect of imputed knowledge were held to be not reviewable for the reason that the exception was noted after the jury had retired. The conviction of the three defendants was accordingly affirmed (U. S. v. Rumely, 293 Fed. Rep. 532; certiorari refused, 263 U. S. 713). Little significance is due to the refusal of the Supreme Court to allow a writ of certiorari. The writ does not issue to unravel the tangled strands of evidence upon a complicated record (Fields v. U. S., 205 U. S. 292, 296).

The petitioners had been sentenced to serve a term of one year and one day in the United States penitentiary at Atlanta, Georgia. After the judgment of affirmance, the sentence was commuted by the President to imprisonment for one year in Westchester County Penitentiary, White Plains, New York. A second commutation reduced the term of imprisonment to one month, a sentence which was served. Finally, on January 19, 1925, there was granted to the petitioners a full and unconditional pardon. The President in granting this pardon acted in accordance with the recommendation of his Attorney-General, now Mr. Justice Stone of the Supreme Court of the United States, who after examining the record expressed a belief that the petitioners were innocent.

The Judiciary Law of this State (Cons. Laws, ch. 30) provides (§ 88, subd. 3): “Whenever any attorney and counselor-at-law shall be convicted of a felony, there may be presented to the Appellate Division of the Supreme Court a certified or exemplified copy of the judgment of such conviction, and thereupon the name of the person so convicted shall, by order of the court, be stricken from the roll of attorneys.” Conspiracy, though only a misdemeanor under the Penal Law of New York, is a felony under the United States Criminal Code (U. S. Criminal Code, § 355; 35 Stat. 1152). Upon proof of the judgment of conviction without more, the Appellate Division in March, 1921, made its order excluding the petitioners from the practice of the law. Since there has been no appeal from that order, we do not now determine whether the offense if committed is to be reckoned as a felony within the meaning of the statute (cf. People v. Gutterson, 244 N. Y. 243, 249; Matter of Robinson, 140 App. Div. 329; Matter of Smith, 216 App. Div. 173; Matter of Ackerson, 218 App. Div. 388). What concerns us now is that without independent ascertainment of the fact of guilt, disbarment followed automatically upon proof of the conviction.

The pardon by the President in January, 1925, made new remedies available. By section 88, subdivision 4, of the Judiciary Law: “ Upon the reversal of - the conviction for felony of an attorney and counselor-at-law, or pardon by the President of the United States or Governor of this State, the Appellate Division shall have power to vacate or modify such order or debarment.” Under the authority of that section, the attorneys, again protesting innocence, submitted a petition to the Appellate Division that they be restored to membership in the bar. Their prayer was reinforced by lawyers and judges of distinction who asserted a continued faith in them and an abiding and reasoned distrust of the justice of the verdict. The petition with the notice of motion accompanying it was served on the Association of the Bar of the City of New York which had moved the disbarment of the attorneys while the conviction was in force. The Bar Association by its executive committee resolved that it concurred in the petition for reinstatement, and authorized the designation of an attorney to make representation to the court accordingly. Upon the return day of the motion the court was so advised.

To this impressive challenge of the justice of the verdict, the Appellate Division has made response that the verdict is conclusive. It has not looked into the evidence and pronounced the judgment just. It has closed the door upon inquiry as forbidden and illicit. “ The learned counsel for the petitioner has very earnestly argued that the petitioner was not guilty of the crimp charged against him, that he was unjustly and improperly convicted, and that vital errors were committed upon the trial. It is sufficient to say that the conviction was •unanimously affirmed by the United States Circuit Court of Appeals for the Second Circuit, and that ah application for a writ of certiorari was denied by the Supreme Court of the United States. We are concluded by the judgments of the United States courts and we are without power to review their proceedings ” (Matter of Kaufmann, 213 App. Div. 555). And again: “ The conviction was founded upon what the court has determined were acts in violation of the United States statutes passed by the Congress of the United States as war measures. The contention is that they were not committed. We are foreclosed from considering that question by the judgment of conviction and its affirmance.”

We are unable to yield approval to these self-imposed restrictions upon the power of the Appellate Division to do justice to its officers. The same statute that attaches to conviction for a felony the penalty of forfeiture, attaches the opportunity for remission to reversal or to pardon. The matter is then at large, to be dealt with freely and generously, without other limitations than are inherent in the sense of justice of the judges. None is expressed. We think none other is implied. Upon an application for disbarment, a judgment of conviction is not conclusive against the attorney by force of any general doctrine of res adjudicata. This is so though the judgment has been rendered by a court of the same sovereignty (Sims v. Sims, 75 N. Y. 466, 471, 473; Matter of Eldridge, 82 N. Y. 161, 166; Matter of an Attorney, 86 N. Y. 563, 573; Wilson v. Manhattan Ry. Co., 2 Misc. Rep. 127, 129; affd., on opinion below, 144 N. Y. 632; People v. Rodawald, 177 N. Y. 408, 425). A fortiori, it is so when the judgment has been rendered by a court of another sovereignty. The proceedings are between different parties for the vindication of different rights (cf. Matter of Rouss, 221 N. Y. 81, 85, 87). So far as common-law principles prescribe the consequences of conviction, the court to whose discipline an attorney is amenable may retry the issue of his guilt, and punish or acquit according to the promptings of its conscience. The statute (Judiciary Law, § 88, subd. 3) does indeed set bounds upon this freedom of inquiry as long as the conviction stands and the convict is without a pardon. While those conditions last, a court of .this State in disciplining an attorney accepts the record of conviction, and refuses to go back of it. The impediments once removed, the range of scrutiny is as wide as it was at common law. No doubt the attorney seeking reinstatement has the burden of satisfying the court of his fitness to be restored to so honorable a fellowship. For the welfare and repute of the profession the order of disbarment stands -until the presumption of its correctness has been persuasively rebutted. But the honor of the profession does not demand .the sacrifice of the innocent. A pardon may in some conditions be a warning as significant as a judgment of reversal that the looms of the law have woven a fabric of injustice. The very case at hand is indeed an apposite illustration. The record makes it plain that the pardon was granted because the President of the United States was advised by his Attorney-General that the petitioners were innocent. At no time has the Circuit Court of Appeals expressed an opinion to the contrary. Its power was exhausted when it found evidence of guilt, though weak or inconclusive (Mounday v. U. S., supra). Indeed, the prosecuting officer in his brief on the appeal refused to enter upon a discussion of the correctness of the verdict except within these limits. We are now asked to hold that though the immediate consequences of an unjust conviction in the courts of the nation can be avoided, at least as to the future, by the pardon of the President, there is no way in which the indirect consequences can be avoided, even after such a pardon, in the courts of the State. The mistake is sanctified by the verdict, so that none may name it a mistake, however visible the truth.

A non possumus so feeble has no warrant in the statute. A permanent disability to rise to the demands of justice will not be read into the judicial scheme by dubious construction. Back of the power of reinstatement there is a very different rationale. The rationale rather is that reversal or pardon impeaches the conviction to this extent at least, that the convict may show, if he can, that justice has miscarried. In the vast majority of cases he will urge his plaint in vain. A court jealously mindful of the honor of the profession will be slow to override the verdict of a jury which heard the witnesses and saw them. Rare instances may arise, however, where one convicted, disbarred and pardoned may be able to satisfy the court that his guilt has not been proved or even to go farther and demonstrate his innocence. In these exceptional conditions, the administration of justice would be subject to reproach if an implacable law of remedies were to close the door forever upon the hope of vindication.

Even without the aid of statute, courts have found it possible, when the conviction of an attorney has been followed by a pardon, to heed the cry of innocence. There is a precedent in our own State. In Matter of E., an Attorney (65 How. Pr. 171, decided in 1879 before the present statute), the court held that though the office of an attorney was subject to forfeiture upon conviction of a felony, yet pardon made it proper to re-examine the justice of the verdict. Even more striking are the precedents in other jurisdictions. Thus, in Matter of Wendel (3 N. J. Misc. Rep. 312) an attorney was convicted of a felony and disbarred. He served his term and was pardoned. The Bar Association of Mercer County, New Jersey, investigating his guilt, made report ■that he was innocent. Upon application to the court, he was restored to the profession (cf. Matter of Stevens, 59 Cal. App. 251; People ex rel. Bar Assn. v. Burton, 39 Colo. 164).

Whén so much has been done on the footing of inherent power, the less reason there is to cut down by construction a statutory grant of power, made in general terms, without hampering conditions. Precedents cited to the contrary hold no more than this, that reinstatement will not follow automatically from pardon without more (People ex rel. Johnson v. George, 186 Ill. 122). There must be convincing proof of innocence before pardon will restore to the fellowship of the bar. Even innocence of crime will not suffice if there has been a failure to live up to the standards of morality and honor. Pardon does no more than open the door to an inquiry that would otherwise be barred. That much, however, it does. Courts do not forget that, under the most correct administration of the law, men will sometimes fall a prey to the vindictiveness of accusers, the inaccuracv of testimony, and the fallibility of jurors” (Kent, Comm. 1, 284). For this as well as other reasons, the power to pardon is bestowed on the Executive. For this, the statute says that upon pardon or reversal, the power to reinstate shall be vested in the courts.

It results that the petitioners have not yet had the hearing to which their claim of innocence entitles them. They have asked that their fitness for fellowship in the profession be considered and determined. They have been told that fitness will be adjudged upon the assumption of their guilt. They may be able to prove innocence to the point of triumphant demonstration. The triumph will be futile, for the conviction will abide. So the court below has ruled. We think the ruling may not stand.

The question remains as to the measure of the relief that is due to the petitioners upon the appeal before us now. We have given anxious thought to the argument of their counsel that we should proceed upon this record to adjudge their guilt or innocence, and make disposition of the cause accordingly. We are satisfied that this cannot be done consistently with orderly procedure and with the established limitations upon our appellate jurisdiction. For one purpose indeed we have thought it proper to look into the record of the prosecution in the Federal court, which is here as an exhibit. If the cáse made out against the petitioners could be seen to be plainly adequate, there might be doubt of our duty to reverse and remit in aid of a barren technicality. But our scrutiny of the record has sufficed at least to show that more than a barren technicality is here. There is grave doubt whether there is any evidence of the guilt of these petitioners, and doubt still' graver whether the evidence, if any, is strong enough to bring persuasion that justice has been done. That much ascertained, we must leave it to the Appellate Division to reach in the first instance a definitive conclusion. This court is a court of review, its jurisdiction confined to questions of law with exceptions not now important. At most we may pass upon the question whether there is any evidence of guilt. We may not touch the broader question whether guilt, though supported by evidence, has been proved so convincingly' as to satisfy the conscience. The ampler powers that belong to us where the judgment is one of death are altogether exceptional, their origin dependent upon express grants of jurisdiction in the Constitution and the statutes. But even if we were to hold that upon the record now before us there is no evidence of guilt, a decree of reinstatement would be improper at this stage. The Appellate Division has been invested with supervisory and corrective powers in respect of the conduct of attorneys (Matter of Dolphin, 240 N. Y. 89; Matter of Flannery, 212 N. Y. 610). Within the limits of common-law principles (Matter of Eldridge, supra) it may exercise those powers by such methods of inquiry as it will. In the case at hand, for illustration, it is not restricted to the scrutiny of the record in the Federal court. It may summon the parties or other witnesses before it or before a referee of its selection, and determine guilt or innocence by these and other aids. Until it has done these things to such an extent as it holds to be expedient and has made a finding upon the merits, a court of review is not at liberty upon a record less definitive to render judgment absolute. The petitions, when returned to the Appellate Division, will go back to a court empowered by force of this decision to probe until it reaches truth. They are thus assured of that considerate scrutiny which is the due of misfortune crying out to its judges that it has been the victim of oppression.

The order in each case should be reversed, and the applications remitted to the Appellate Division for further proceedings in accordance with this opinion.

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

Ordered accordingly.