author:
      Per Curiam.
     Froessel, J.

text:
    Warren T. Munroe, an Infant, by William T. Munroe, His Guardian ad Litem, et al., Appellants, v. Russell G. Booth et al., as Trustees of Hempstead Number 1 School District, Respondents.
    Argued April 24, 1953;
    decided June 5, 1953.

      Sidney J. Feltenstein for appellants.
    I. The exclusion by the Trial Justice of a conversation was prejudicially erroneous and constituted an infraction of appellants’ constitutional rights. (Clarke v. Gilmore, 149 App. Div. 445; Dodds v. McColgan, 134 Misc. 518, 229 App. Div. 273; Timpson v. Allen, 149 N. Y. 513; Maryland Cas. Co. v. Central Trust Co., 297 N. Y. 294; Karscher v. Dewald, 246 App. Div. 21.) II. Respondents, guilty of a type of “ constructive fraud ” (passive deceit), were estopped from availing themselves of the benefit of the defense of irregularity, a defense which was the product of the fraud in question. (Matter of First Citizens Bank & Trust Co. of Utica v. Estate of Sherman, 250 App. Div. 339; Stewart v. Wyoming Ranche Co., 128 U. S. 383; Mitchell v. Mitchell, 177 Misc. 1050; Matter of Hearn, 158 Misc. 370; Rudolph v. City of New York, 191 Misc. 947.) III. The rule pronounced by the Court of Appeals in Matter of Martin v. School Bd. (Long Beach) (301 N. Y. 233) does not bar the instant cause of action. (Bubb v. Sondheim, 37 Pa. D. & C. 399; Hudson v. Ladd, 37 Wyo. 419; Carr v. Moragne, 136 S. C. 218; Russo v. City of New York, 258 N. Y. 344; Murphy v. Village of Fort Edward, 213 N. Y. 397; Matter of Hogan v. City of Cohoes, 279 App. Div. 282; Di Bartolo v. City of New York, 293 N. Y. 114; Teresta v. City of New York, 304 N. Y. 440.)

      George J. Conway and George A. Garvey for respondents.
    Plaintiffs having failed to serve notices of claim in the manner prescribed by law, the court had no jurisdiction over the action and hence the dismissal on the merits was correct. (Matter of Brown v. Board of Trustees, Hamptonburg School Dist., 303 N. Y. 484; Baker v. New York Central R. R. Co., 258 App. Div. 854; Hotel Glenmore v. American Eagle Fire Ins. Co., 280 App. Div. 445; Hill v. South Buffalo Ry. Co., 277 App. Div. 942; Derlicka v. Leo, 259 App. Div. 607, 284 N. Y. 711; Matter of Haas v. Incorporated Vil. of Cedarhurst, 298 N. Y. 757; Matter of Martin v. School Bd. [Long Beach], 301 N. Y. 233; Di Bartolo v. City of New York, 293 N. Y. 114; Teresta v. City of New York, 304 N. Y. 440.)
   Per Curiam.

A reversal would be justified in this ease only if the court were to ignore the plain command of the applicable statutes that the essential notice of claim must be served upon a member of the board of education, * * * [a] trustee, or the clerk thereof ” (Civ. Prac. Act, § 228, subd. 6; General Municipal Law, § 50-e). Concededly, there was a complete failure to obey or comply with that mandate.

Mrs. Hardy, with whom the paper was left, was neither a member of the board of education nor “ the clerk ” of that board. And since, even on her own say-so, she had received only ‘ ‘ about three ’ ’ papers over a period of ten years, her acceptance of them on those prior occasions means little, if anything-. Certainly, it was not sufficient to cloak her with authority to act for the board and, obviously, not enough to render her a member of the board or its clerk.

Desirable though relaxation of statutory provisions relating to service may appear, to avoid a seemingly harsh result, the courts may not disregard clear and explicit requirements imposed by the legislature. In fact, that body, when providing that certain defects on the face of the notice itself could be rectified, was careful to exclude the correction of any irregularity 1 ‘ pertaining to the manner * * * o/ service thereof ’ ’ — the precise situation here — unless the requisite notice was “ actually received ” by an authorized person (General Municipal Law, § 50-e, subds. 3, 6). It was in keeping with that legislatively declared policy that we recently held sufficient and proper the sending of a notice of claim by ordinary mail, even though the statute prescribed that it be forwarded by a ‘ registered ” letter. (See Teresta v. City of New York, 304 N. Y. 440.)

The legislature having spoken unequivocally, the court may not disregard its pronouncement and, contrary to it, dispense with the requirement that the notice of claim he served upon one of the persons designated.

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

Froessel, J.

(dissenting). This case presents one more aspect of section 50-e of the General Municipal Law. The infant plaintiff, nine years of age, tripped and fell upon projecting roots and stumps in defendants’ schoolyard, sustaining such severe injuries that a kidney was ruptured and was subsequently removed by surgery.

The notice of claim herein was personally served by an attorney, who first stated his business, upon one Mrs. Hardy. She indorsed her receipt thereon, “just as we have signed election papers or anything else ”, and promptly forwarded it to the school attorney, who admitted he had a copy. The office of the school district is maintained in the business office of the high school building in Hempstead, and Mrs. Hardy is the person who, with her subordinates, is normally present in such office and has charge thereof. On the occasion in question she was the only one present, as it was vacation time.

She is the “ business manager ” of the school district, a position which she has achieved after some forty-two years of service to the district, having been there ‘ ‘ longer than anyone in the Village.” Originally she was the only clerk in the school system and had done “ everything that came along ”. As the school system grew, she ‘1 took over the Board of Education work entirely.” Her position is obviously one of highest responsibility and broad discretion in the management of the business affairs of the school district. She is the person primarily responsible and regularly available to the public for the transaction of business with the school district, as the trustees, who are employed at their own occupations in Hemp-stead and elsewhere, attend at the office only for district meetings. The latter is also true of the $500 per year “ clerk ” of the district, whose only duties, so far as appears, are to act as secretary at meetings of the board of trustees.

It appears that Mrs. Hardy had accepted service of process on prior occasions, by prearrangement with the school attorney, of whom she said: “We have an attorney that we hire to take care of our legal business and everything goes through his office.” There is not even a whisper of a suggestion that the notice would have been handled differently had it been served in any other manner than it was; indeed, the president of the board was asked about this and failed to respond. It thus appears without contradiction that the district had prompt notice of the claim through the usual channels and therefore had ample opportunity to investigate, a circumstance which we have held should lead to validation of the notice of claim so served (Teresta v. City of New York, 304 N. Y. 440).

In addition, we have Mrs. Hardy’s actions on the above-mentioned prior occasions. Though taken without explicit authorization by the trustees, as These process servers come in and they expect someone to take the papers ”, they were never disapproved by the board, as its president testified, and her authority was never questioned in any way.

Under the foregoing circumstances, a fair question of fact was made out, to say the least, as to the issue of Mrs. Hardy’s authority to accept service on behalf of the trustees, individually or collectively. As I have pointed out, she occupies a unique position in the district, so much so that the president of the board of trustees acknowledged that “ [she was] in charge of that office ”; he did not even inquire as to the nature of her duties or the extent of her authority when he first came on the board, and was apparently content to allow her to continue to manage the affairs of the district without intervention or close supervision. Coupled with her prior acceptance of process and other papers served upon the board, these facts would justify the trier of the fact in concluding that Mrs. Hardy accepted the notice of claim herein with the tacit consent and authorization of the trustees, and was the agent of one or all of them for such purpose. (Teresta v. City of New York, supra, p. 443.) It follows that it was error at all events to refuse to submit that issue to the jury.

The judgment below should be reversed and a new trial ordered.

Lewis, Ch. J., Desmond, Dye and Fuld, JJ., concur in Per Curiam opinion; Feoessel, -J., dissents in opinion in which Conway, J., concurs.

Judgment affirmed.


source: Caselaw Access Project

author: Fuld, J. Conway, J.

license: Public Domain

text:
    In the Matter of the Claim of Frances Glickman, Respondent, against Greater New York Taxpayers et al., Appellants. Workmen’s Compensation Board, Respondent.
    Argued April 20, 1953;
    decided June 5, 1953.

      William L. Shumate and Edward J. Haniver for appellants.
    Decedent’s trip to the Catskills to spend the week end with his family was in no way connected with his employment. Consequently, the accident, which occurred some sixty' or seventy miles from New York City on his return journey, did not arise out of or in the course of his employment. (Matter of Marks v. Gray, 251 N. Y. 90; Matter of O’Keefe v. Friederich & Son, 260 App. Div. 818; Matter of Bennett v. Marine Works, 273 N. Y. 429; Matter of Williams v. Arthur Gallow, Inc., 261 App. Div. 765; Matter of Gottshall v. United Utilities & Specialty Co., 275 App. Div. 736.)

      Nathaniel L. Goldstein, Attorney-General (Roy Wiedersum, Wendell P. Brown and Harry Pastor of counsel), for Workmen’s Compensation Board, respondent.
    The accident and death of decedent arose out of and in the course of his employment. (Matter of Bennett v. Marine Works, 273 N. Y. 429; Matter of Williams v. Arthur Gallow, Inc., 261 App. Div. 765; Matter of Gottshall v. United Utilities & Specialty Co., 275 App. Div. 736; Matter of Lewis v. Knappen Tippetts Abbett Eng. Co., 304 N. Y. 461; Matter of Kristianson v. Lehman, 287 N. Y. 569; Matter of Madelung v. Dale Radio Co., 287 N. Y. 556; Matter of Eaton v. Webster Motors of Glens Falls, 291 N. Y, 699; Matter of De Cicco v. Rubel Corp., 275 N. Y. 576; Matter of Graves v. Tide Water Oil Sales Co., 275 N. Y. 583; Matter of Bollard v. Engel, 278 N. Y. 463; Matter of Wagoner v. Brown Mfg. Co., 274 N. Y. 593; Matter of McCarthy v. Colonial Life Ins. Co., 266 App. Div. 930; Matter of Worrall v. Forest Hills Material Co., 267 App. Div. 1021; Matter of Schwimmer v. Kammerman & Kaminsky, 262 N. Y. 104.)
   Fuld, J.

While workmen’s compensation is not confined by common-law conceptions of scope of employment ” (O’Leary v. Brown-Pacific-Maxon, 340 U. S. 504, 506), more must be shown, to warrant an award, than injury or death and the relationship of employer and employee. It must also appear that such injury or death arose out of and in the course of ” the employment (Workmen’s Compensation Law, § 10).

Sidney Glickman worked as an outside claims investigator for appellant employer, a casualty insurance company. His work, of an investigatory nature, was restricted to a very limited area, to upper Manhattan and a part of the Bronx. Since he covered his territory in his own automobile, he received, in addition to his salary, $10 a week for expenses incurred in its operation. He reported to his employer’s office but twice a week, on other days going directly from his home to make his calls. He did, however, have more or less regular working hours — from 9:00 a.m. to 5:30 p.m. — from Mondays through Fridays, whether in or out of the office. Not required to work overtime unless “ necessity required it ”, he sometimes interviewed people in the evening, and even on a Saturday or a Sunday, but never “ outside of New York City’s limits.”

In the summer of 1948, Glickman rented a room for his wife and child in the Catskill Mountain region, at Woodridge, about ninety miles from New York City, and there, with his employer’s knowledge, he drove each Friday to spend the week end with them. On Monday, August 16th, shortly after nine o’clock in the morning, as he was returning to New York City, he was killed when his car collided with a truck in Middletown, some twenty-five miles from Woodridge. According to his wife, he had worked during that last week end on papers that he had brought with him from the city.

Glickman was an “ outside worker ” — to distinguish him from one whose employment confines him to office desk or factory bench — but that did not mean that every accident that might befall him would be within the compass of the Workmen’s Compensation Law; it had still to be within the ambit of his work, it had still to arise out of and in the course of his employment. (Cf. Matter of Bennett v. Marine Works, 273 N. Y. 429, 431; Matter of Gottshall v. United Utilities & Specialty Co., 275 App. Div. 736, motion for leave to appeal denied 300 N. Y. 761; Matter of Williams v. Arthur Gallow, Inc., 264 App. Div. 800, motion for leave to appeal denied 289 N. Y. 854.)

Here, the employee’s week-end trip to the Catskill Mountains was inspired by reasons purely personal, having no connection with his employment. The circumstance that he may have given thought to his work, that he may have read some papers bearing upon it, cannot transform a vacation week end into a business activity. (See, e.g., Murphy v. Board of Educ., 314 Mich. 226; Industrial Comm. v. Gintert, 128 Ohio St. 129; see, also, 1 Larson’s Workmen’s Compensation Law [1952], § 18.31, p. 253; § 18.32, pp. 256-257.) At any rate, when Glickman left Woodridge on Monday morning — whether or not he intended to stop at his home in the Bronx before starting upon his investigations — it may not be said that his personal trip had ended and his business day had begun. His field of employment, far from extending to the Catskills, was limited to an area in upper New York City, some sixty-five miles from where he was killed. (See, e.g., Matter of O’Keefe v. Friederich & Son, 260 App. Div. 818.) Certainly, death while at Woodridge on Saturday or on Sunday, or even while on his way there on Friday, would not have been regarded as in the course of employment. The happenstance that the accident occurred on the return trip, long before he had resumed his employment, may not be relied upon to render his death compensable. (Cf. Matter of Scott v. U. S. O. Camp Shows, 298 N. Y. 896.)

Nor can the fact that the week-end trips were known to the employer or that Glickman was required, if necessary, to work evenings and week ends, assist claimants or render Glickman an employee making a “ dual purpose ” trip. (Cf. Matter of Davis v. Newsweek Mag., 305 N. Y. 20, 24-26; Matter of Lewis v. Knappen Tippetts Abbett Eng. Co., 304 N. Y. 461; Matter of Lepow v. Lepow Knitting Mills, 288 N. Y. 377; Matter of Marks v. Gray, 251 N. Y. 90, 93; see, also, 1 Larson, op. cit., §§ 18.12,18.13,18.14, pp. 241 et seq.; § 25, p. 384.) In order to entitle an employee to compensation for an injury sustained while on a “ dual purpose ” trip, service to the employer must have been one of the motivating reasons, at least a “ concurrent ” cause, for the journey. In the very recent Davis case (supra, 305 N. Y. 20), for instance, we dismissed a claim for death benefits where the employee met his death while on a trip 1 ‘ predominantly ’ ’ for pleasure and only incidentally for business purposes (p. 24). We unequivocally held that, to establish liability — to borrow from Matter of Marks v. Gray (supra, 251 N. Y. 90, 93-94), cited with approval in the Davis case — ‘ the inference must be permissible that the trip would have been made though the private errand had been canceled. * * # If the work of the employee creates the necessity for travel, he is in the course of his employment, though he is serving at the same time some purpose of his own * * *. If, however, the work has had no part in creating the necessity for travel, if the journey would have gone forward though the business errand had been dropped * * the travel is then personal, and personal the risk.”

So, here, the trip to Woodridge ivas personal, and personal the risk.” Of course, when Monday came, it ivas necessary that Glickmau retrace his route and return to his job, but his work had in no way created ‘1 the necessity for travel ’ ’. To highlight the problem, and make more evident the answer, we need only think of week-end trips to distant parts, for example, from Yew York City to the Adirondacks or to Canada. To uphold an award for an injury sustained by the employee while on, or returning from, such a trip would extend the employer’s liability beyond all reasonable or permissible limits, even under a socially conceived statute such as the Workmen’s Compensation Law.

The very different fact situation reflected in Matter of Gottshall {supra, 275 App. Div. 736), upon which the Board relies, effectively distinguishes that case from the present. An employee, a salesman collector, who had spent the week end at his home in Penn Yan, was fatally injured while returning to his employer’s place of business in Binghamton. Death benefits Avere allowed, but, the record significantly revealed, (1) the employer had actually supplied the gasoline for the car for that very Aveek-end trip, (2) the employee had solicited sales and had prepared his accounts, for submission to his employer, at Penn Yan over the Aveek end, (3) had customers along the road, upon whom he frequently called on his way back to Binghamton, and (4) had in his possession, at the time of the accident, merchandise and money belonging to his employer. As is thus apparent, the resemblance between the cases is entirely superficial. While, in Gottshall, the accident occurred in the \rery territory where the employee worked, in the course of a trip entirely bound up in service to his employer, Glickman was killed on his way back from a purely personal pleasure trip, many, many miles from where his day’s work Avas to begin.

The order of the Appellate Division should be reversed, the award of the Workmen’s Compensation Board annulled and the claim dismissed, with costs in this court and in the Appellate Division against the Workmen’s Compensation Board.

Conway, J.

(dissenting). We think that the award was properly made and that the case of Matter of Gottshall v. United Utilities & Specialty Co. (275 App. Div. 736, motion for leave to appeal denied 300 N. Y. 761) is analogous. The Appellate Division gave four reasons for finding that Glickman’s death was in the course of his employment as follows: (a) he was an outside worker, not employed in any one fixed place and had left his residence, even though it was a distant and not fully continuous residence, for the area of employment; (b) the employer had knowledge it was the practice of decedent to spend summer week ends at his place in Woodridge; (c) when the business of the employer required it, decedent worked and could be called on to work Sundays and week ends; (d) the presumptions of the statute add strength to the claim.” (280 App. Div. 1006.)

There cannot be any question but that there is ample factual support in the record for reasons (a), (b) and (c). There can be no question but that had Glickman been on his way from his home which appears to have been on Anthony Avenue in the borough of the Bronx and had been killed under the same circumstances, his widow would properly have received a compensation award. The deceased was not on a week-end trip as the term is customarily used. He had taken a residence for the summer for his wife and child at Woodridge, New York, in the Catskills. His wife had rented a room and had a separate kitchen downstairs where she was permitted to do the cooking for herself, the child and her husband. Her husband, the child and she took up their residence there about June 19th for the summer and the wife was living there on August 16th when her husband was killed. August 16th was a Monday. The decedent was on his way to the Bronx to work on his cases. The employer knew that the decedent had taken the family residence for the summer in Woodridge. In fact the employer knew that the decedent left earlier than usual on Friday nights to return on Monday mornings. The widow testified that during the preceding week end he had worked on office papers which he had brought with him and that they had paid a visit to a friend of her husband in a similar line of work where business matters were discussed.

We repeat that had the decedent been on his way from his home in the Bronx to interview witnesses and had been killed in an automobile collision, there would be no question as to an award. Why should it make any difference that he was returning from his summer home to do the same thing when his employer permitted it and allowed him to leave early Friday afternoons in order to visit his summer home? Would it make any difference if he had taken a summer home in Westchester County, for instance, where he would have been able to go home in his automobile every night? Is it a question of mileage? Is an accident compensable because a man takes a summer home or residence thirty miles away but not if he takes one seventy-five miles away? For an outside worker to be covered by a compensation policy must he keep his family in the city all summer? Or must he keep his family during the summer at so short a distance from his work that he can go to see them every night? We must remember that this man worked for an insurance company which knew he was an outside worker, knew that he was entitled to compensation if he was injured on his way to work, knew that he had a summer home for his wife and child and knew that he had to go from there to his work. His employer which permitted the decedent to do these things, which were for the employer’s benefit, comes into court in an unenviable position when it urges that it should not pay compensation here when the decedent acted with his employer’s consent in everything he did and the employer benefited from the doing of it.

Lewis, Oh. J., Desmond and Fboessel, JJ., concur with Fuld, J.; Conway, J., dissents in opinion in which Dye, J., concurs.

Order reversed, etc.


author: Froessel, J.

text:
    In the Matter of the Claim of Alma Akeson, Respondent, against Salvage Process Corporation et al., Appellants. Workmen’s Compensation Board, Respondent.
    Argued April 20, 1953;
    decided June 5, 1953.

      Ralph S. Stowell and Joseph D. Edwards for appellants.
    The finding that claimant was the common-law widow of decedent was error as matter of law. (Gall v. Gall, 114 N. Y. 109; Matter of Haffner, 254 N. Y. 238; Matter of Dondero v. Queens
      bora News Agency, 296 N. Y. 847; Matter of Hill v. Vrooman, 242 N. Y. 549; Karameros v. Luther, 166 Misc. 376, 254 App. Div. 845; Taylor v. Taylor, 164 Misc. 401; Matter of Crandall, 214 App. Div. 363.)

      Nathaniel L. Goldstein, Attorney-General (Gilbert M. Landy, Wendell P. Brown and Roy Wiedersum of counsel), for Workmen’s Compensation Board, respondent.
    Ample evidence supported the finding of fact made by the Workmen’s Compensation Board that claimant was the common-law wife of decedent. (Matter of Dondero v. Queensboro News Agency, 296 N. Y. 847; Gall v. Gall, 114 N. Y. 109; Matter of Lewis v. Noyes Co., 278 App. Div. 222; Matter of Dugro, 261 App. Div. 236, 287 N. Y. 595; Matter of Konieczny v. Kresse Co., 234 App. Div. 517; Matter of Haffner, 254 N. Y. 238; Dodge v. Campbell, 229 App. Div. 534, 255 N. Y. 622; Matter of Wells, 123 App. Div. 79, 194 N. Y. 548; Matter of Frost, 265 App. Div. 64, 1028.)
   Froessel, J.

The only question presented by this appeal is whether or not there is evidence to sustain the finding of the Workmen’s Compensation Board that claimant is the widow of the employee, and thus entitled to the award herein. The board based its finding upon its conclusion that claimant had contracted a common-law marriage with said employee. For the reasons hereinafter stated, we think such finding cannot stand.

Claimant stated she was married to one Carl Akeson in Sweden in 1890, I guess.” In 1905 they came to the United States, living in various places in Brooklyn and on boats, as Akeson was a barge captain. They had two children. About the year 1918 they came to know Albert G-ranat, the deceased employee. At that time Akeson apparently wearied of his obligations toward claimant and ceased to provide her with adequate support. In this situation it developed that Akeson said to Granat: “ You can take her if you want her.” Claimant then went to live and cohabit with Granat, continuing to do so until shortly before his death in 1944. From time to time Akeson lived with them.

Akeson died on April 17,1933, still legally married to claimant. On and after April 29,1933, it became legally impossible to contract a common-law marriage in this State (L. 1933, ch. 606, now Domestic Relations Law, § 11). Since claimant and Granat remained in New York State, it follows that no common-law marriage was possible except it be shown to have been entered into during that twelve-day period from April 17 to 29, 1933. This was the precise issue presented to the board.

The positive evidence opposed to the existence of any such relationship is simply overwhelming. In the first place, the connection between claimant and Granat was meretricious in its inception and necessarily remained so for the fifteen years prior to April 17, 1933, thus raising a presumption that it continued as such after that date. During all of the years claimant lived with Granat she did not abandon her marriage name. Not only did she use it throughout all those years, but she even used it in connection with this very claim for compensation benefits, as well as in a prior claim for death benefits. Moreover, she applied for home relief and took out an insurance policy under that name. When asked under what name she was admitted to the hospital, she replied: “ Akeson. All the time my name was Akeson.” When Granat filed the original claim for compensation, he stated that he was single and he made the same statement to the physician. These declarations were made under circumstances in which there was no apparent motive for concealment or falsehood. Likewise, the employer’s first report of injury stated that he was unmarried.

The most convincing proof of the true status of the parties, however, came from claimant herself. Though she was ill at the time of her examination and her mind was not perfectly clear, she was nevertheless able to say of her relationship with Granat: “ He was just like a husband. * * * Yes, we was not married, you know. We were living together.” And of her husband, Akeson, she said: £< We were not living together. We were married.” That testimony, from claimant herself, may well be considered conclusive.

In any event, as opposed to the foregoing evidence, there was only the testimony of two witnesses, one of whom, Munsen, testified that he had known Granat since 1922 and claimant since 1923. Granat had introduced claimant as his wife to this witness, but the witness did not know whether or not they were married, and did riot know their reputation in the neighborhood. The other witness, .Danielson, had known Granat since 1937 and claimant had also been introduced to him as Granat’s wife. He lived in the same house for a time and knew that they lived together, but did not know whether or not they were married. It is plain that such testimony is entirely insufficient to establish anything except that Granat introduced claimant as his wife, a circumstance which proves nothing more than that he wished either to spare her feelings or to maintain a semblance of propriety. Even with her occasional use of Granat’s name, it was obviously insufficient to lead even the witnesses to believe that claimant was married to Granat.

Upon such a record it cannot be said that there is any substantial evidence upon which the vital social relationship of marriage can be predicated. All of the probative evidence points to an absence of any marital relationship, and indeed fails to disclose any intention of the parties to enter into such a relationship at any time, much less during the permissible twelve-day period in 1933. The testimony of Munsen and Danielson is utterly inconclusive, and is in nowise inconsistent with the other evidence in the case, all to the effect that claimant was never the wife of Granat. It cannot be regarded as sufficient in law to raise an issue of fact (Matter of Case, 214 N. Y. 199; Blum v. Fresh Grown Preserve Corp., 292 N. Y. 241).

Without discussing the cases relied upon below, it is enough to note that in every such case there was some affirmative and unequivocal act of the parties showing either an intent to enter into a marriage or an acknowledgment of an existing marriage. As has already been noted, in the case at bar there was no such act during all of the twenty-six years the parties remained together and particularly during the decisive twelve-day period.

The order of the Appellate Division should be reversed, the award of the Workmen’s Compensation Board annulled and the claim dismissed, with costs in this court and in the Appellate Division against the Workmen’s Compensation Board.

Lewis, Ch. J., Conway, Desmond, Dye and Fuld, JJ., concur.

Order reversed, etc.


author: Lewis, Ch. J. Dye, J.

text:
    Courtney J. Sauter, Respondent, v. New York Tribune, Inc., Appellant, et al., Defendants.
    Argued May 26, 1953;
    decided July 14, 1953.

      John Nielsen and John P. Smith for appellant.
    Defendant-appellant is not liable to plaintiff. (Oneta v. Tocci Co., 271 App. Div. 681, 297 N. Y. 629; Mott v. Consumers’ Ice Co., 73 N. Y. 543 ;Osipoff v. City of New York, 286 N. Y. 422; Muller v. Pillen

      brand, 227 N. Y. 448; Plumer v. Southern Bell Tel. & Tel. Co., 58 Ga. App. 622; Zucker v. Lannin Realty Co., 217 App. Div. 487.)

      Harry Zeitlan and Henry P. Goldstein for respondent.
    The assault by defendant Finnegan arose out of an act which was within the scope of his authority and which was done in furtherance of the business of defendant-appellant. (Mott v. Consumers’ Ice Co., 73 N. Y. 543; Dupre v. Childs, 52 App. Div. 306, 169 N. Y. 585; Rounds v. Delaware, L. & W. R. R. Co., 64 N. Y. 129; Cohen v. Dry Dock, E. R. & R. R. R. Co., 69 N. Y. 170; Buck v. Standard Oil Co. of N. Y., 224 App. Div. 299, 249 N. Y. 595; Curran v. Buckpitt, 225 App. Div. 380; Muller v. Hillenbrand, 227 N. Y. 448; Girvin v. New York Central & H. R. R. R. Co., 166 N. Y. 289; Osipoff v. City of New York, 286 N. Y. 422; Langguth v. Bickford’s, Inc., 297 N. Y. 982.)
   Lewis, Ch. J.

Plaintiff’s action is to recover for injuries sustained as the result of an assault upon him by the defendant John P. Finnegan, a truck driver employed by the defendant-appellant New York Tribune, Inc. Upon this appeal the defendant-appellant raises no issue in respect of injury, causal relation or the amount of damage sustained by plaintiff. The sole question is whether, at the time of the assault, the defendant Finnegan was acting in the course of his employment and in such furtherance of his employer’s business as to impose liability upon his employer for the personal injuries which resulted to the plaintiff.

As to facts: On April 24, 1947, plaintiff, who was employed as a bus driver, was operating a bus on 41st Street between Seventh and Eighth Avenues in the borough of Manhattan when a truck, controlled by defendant New York Tribune, Inc., and operated by its driver Finnegan, struck the plaintiff’s bus. As to what happened thereafter, the plaintiff testified as follows:

“ I pulled my bus to a stop as soon as possible. I got out. Í asked the driver for his license. He said to me, ‘ You wise guy,’ and he called me a name. And I said, ‘ Well, let’s stop this fooling around and give me your license; I want to get out of here. ’ And he struck me, give me a punch in the nose, my hands down. So I pushed him away. Some passengers jumped off and separated us. I went back in the bus then, to get a piece of paper to get the license plate number of this truck. This truck had a tail gate on it, so I had to bend down —
Q. This truck had what? A. A tail gate. The tail gate was down, so I had to bend down to get the license pláte, which was underneath the body of the truck. I got down on one knee, was preparing to get the number of the bus of the truck, and this fellow come over and kicked me in the face.” (Emphasis supplied.) That evidence — establishing, as it does, two unprovoked assaults upon plaintiff by defendant-appellant’s driver — is supported by testimony of passengers upon the bus driven by plaintiff.

Upon the evidence we are unable to agree with the courts below that, at the time of the assault — at least "at the time plaintiff was kicked in the face — defendant-appellant’s driver Finnegan was so engaged in the course of his employment and in the furtherance of his employer’s business as to make defendant-appellant liable for the injuries inflicted upon plaintiff.

In Rounds v. Delaware, L. & W. R. R. Co. (64 N. Y. 129), Judge Andrews, writing for a unanimous court, said: “ There is, at this time, but little conflict of judicial opinion in respect to the general rule by which the liability of a master for the misconduct of his servant, resulting in injury to third persons, is to be tested and ascertained. In Higgins v. The Watervliet Turnpike Company (46 N. Y. 23), this subject was considered by this court, and the rule was declared to be, that the master was responsible civiliter for the wrongful act of the servant causing injury to a third person, whether the act was one of negligence or positive misfeasance, provided the servant was at the time acting for the master, and within the scope of the business intrusted to him. The master is liable only for the authorized acts of the servant, and the root of his liability for the servant’s acts is his consent, express or implied, thereto. When the master is to be considered as having authorized the wrongful act of the servant, so as to make him liable for his misconduct, is the point of difficulty. Where authority is conferred to act for another, without special limitation, it carries with it, by implication, authority to do all things necessary to its execution; and when it involves the exercise of the discretion of the servant, or the use of force towards or against another, the use of such discretion or force is a part of the thing authorized, and when exercised becomes, as to third persons, the discretion and act of the master, and this, although the servant departed from the private instructions of the master, provided he was engaged at the time in doing his master’s business, and was acting within the general scope of his employment.” . (Pp. 133-134.) (Emphasis supplied.) Similarly, in Mott v. Consumers’ Ice Co. (73 N. Y. 543) where the court recognized that an employer may be held liable for the wrongful act of his servant done within the course of employment and “ with a view to the furtherance of that business and the master’s interest,” it was said: “ But if a servant goes outside of his employment, and without regard to his service, acting maliciously, or in order to effect some, purpose of his own, wantonly commits a trespass, or causes damage to another, the master is not responsible; * * * ” (p. 547). To the same effect, see Oneta v. Toed Co. (271 App. Div. 681, 683, affd. 297 N. Y. 629).

In the circumstances disclosed by this record, we do not believe it may be said that the second assault upon plaintiff by .the defendant Finnegan was an act done in the course of his employment “in furtherance of” defendant-appellant’s business or interest. This is not a case — as are those cited by the Trial Judge and relied on by the plaintiff (De Wald v. Seidenberg, 297 N. Y. 335; Mott v. Consumers’ Ice Co., 73 N. Y. 543, supra; Cohen v. Dry Dock, E. B. & B. R. R. Co., 69 N. Y. 170) — where the employee, though overly aggressive in adopting methods not authorized by his employer, was nevertheless carrying out the duties specifically enjoined upon him at the time of the wrong. In each of those cases the ultimate result which the employee was attempting to effect by the use of force or personal violence was an act which the employee had been authorized to perform in furtherance of his employer’s interest. Not so in our present case where the evidence clearly demonstrates that the conduct of the defendant Finnegan — through lack of judgment and while under the influence of temper unprovoked by the plaintiff — went beyond the line of his duty or authority and inflicted injury upon the plaintiff which was not justified.

The assault committed by the driver Finnegan accomplished nothing which might be said to have benefited, or to have been intended to benefit his employer. Upon the facts of record, including the fact that Finnegan — having first struck the plaintiff and having been pulled away by intervening bus passengers — later sought out the plaintiff and kicked him in the face while he was kneeling on one knee, inflicting the injuries of which complaint is made, it is clear that the sole purpose of the driver’s second unprovoked assault upon the plaintiff was prompted by unrighteous anger on the part of the defendant Finnegan.

The trial court took the position that The exchange of information upon the happening of an accident is an integral part of the operation of the truck ” for which Finnegan concededly was employed by defendant-appellant. Assuming that to be true, we do not think it follows that the employer, New York Tribune, Inc., can be held legally responsible for the second attack upon plaintiff by Finnegan which occurred subsequent to plaintiff’s request to see Finnegan’s license and at a time when plaintiff had walked away from Finnegan and had abandoned his efforts to exchange license numbers with him. If, as the Trial Justice said, “ the driver * * * is engaged to submit credentials when circumstances require it ”, it is clear that, at the time of plaintiff’s injury, the driver Finnegan was not only not pursuing the course directed by his employment, but, on the contrary, he had already refused to perform the duty so imposed upon him and had chosen physical violence for purposes of his own. The assault upon plaintiff was something more than imperfect performance of the duty to submit credentials when circumstances required; it was a positive refusal to act as impliedly directed by the employer New York Tribune, Inc., thereby constituting a willfull departure from the employer’s business and the furtherance of its interests.

Giving the plaintiff the benefit of every favorable inference which may reasonably be drawn from the facts of record, we do not believe it may be said that the assault committed upon plaintiff by the defendant Finnegan was an act within the course of the driver’s employment in furtherance of the interests of the employer, New York Tribune, Inc.

Accordingly, the judgments should be reversed and the complaint dismissed as to defendant New York Tribune, Inc., with costs in all courts.

Dye, J.

(dissenting). I dissent and vote to affirm. We deal with an affirmed finding of fact that Finnegan at the time was engaged in the scope of his employment (Osipoff v. City of New York, 286 N. Y. 422, 431); that an issue of fact existed is conceded by stipulation “ that all questions of law and fact be submitted to the Court to be decided and to be determined by the Court ” (the jury having been waived). The court below has unanimously approved the finding of the trial court that: ‘ ‘ The corporate defendant placed the individual defendant in charge of its truck and in the operation of the truck its driver was using the public highway and charged with duties arising therefrom. The'exchange of information upon the happening of an accident is an integral part of the operation of the truck. The latter is incapable of separation from the former and the driver consequently is engaged to submit credentials when circumstances require it.”

The exchange of information as to credentials was an integral element in the operation of defendant’s truck (Vehicle and Traffic Law, § 70, subd. 5-a). The driver’s refusal to exchange such information, followed by wanton assault does not excuse his employer from the consequences. It is no different in principle than the liability attaching to an owner for injuries to others occasioned by the negligent, reckless or wanton operation of the vehicle. True, the defendant did not hire Finnegan to commit an assault on others, but by the same token it did not authorize him to refuse to do a required act.

The judgment should be affirmed, with costs.

Conway, Desmond, Fuld and Froessel, JJ., concur with Lewis, Ch. J.; Dye, J., dissents in opinion; Van Voorhis, J., taking no part.

Judgments reversed, etc.


author: Fuld, J.

text:
    The People of the State of New York, Respondent, v. William Lupo, Appellant.
    Argued April 14, 1953;
    decided July 14, 1953.

      Maurice Edelbaum and Stanley L. Gluck for appellant.
    I. The court committed serious error in permitting evidence of appellant’s prior plea of guilty before another Judge of the court. (People v. Steinmetz, 240 N. Y. 411; Kercheval v. United States, 274 U. S. 220; People v. Ariano, 264 App. Div. 426; People v. Ryan, 82 Cal. 617; Jamail v. United States, 37 F. 2d 576; Pharr v. United States, 48 F. 2d 767; Heim v. United States, 47 D. C. App. 485, 247 U. S. 522; Green v. State, 40 Fla. 474; White v. State, 51 Ga. 285; Comm. v. Lannan, 13 Allen [Mass.] 563.) II. The court committed serious error in failing to clearly and properly instruct the jury as to the possible verdicts they could render. (People v. Murch, 263 N. Y. 285.) III. Defendant’s rights under the Constitutions of the United States and the State of New York were violated by the admission of evidence of the prior plea of guilt. (Canizio v. New York, 327 U. S. 82.)

      Miles F. McDonald, District Attorney (William I. Siegel of counsel), for respondent.
    I. Appellant’s guilt was established beyond a reasonable doubt. (People v. Reddy, 261 N. Y. 479; People v. Galbo, 218 N. Y. 283; People v. Conroy, 97 N. Y. 62; People v. Steinmetz, 240 N. Y. 411.) II. No errors of law were committed by the trial court. (Kercheval v. United States, 274 U. S. 220; People v. Defore, 242 N. Y. 13, 270 U. S. 657; Weeks v. United States, 232 U. S. 383; Schwartz v. Texas, 344 U. S. 199; Nardone v. United States, 302 U. S. 379; Weiss v. United States, 308 U. S. 321; People v. Ariano, 264 App. Div. 426; People v. Gilbert, 199 N. Y. 10.)
   Fuld, J.

William Lupo was indicted for the crimes of robbery in the second degree, assault in the second degree and petit larceny, all allegedly stemming from a holdup committed on June 21, 1951. At the close of the evidence, the trial judge was, of course, obliged to spell out for the jurors the elements of those three offenses and the possible verdicts that they might report. The question, posed by defendant’s appeal from Ms conviction on all three counts, is whether the judge adequately instructed the jurors on those subjects. Our conclusion is that he did not.

Two young women were held up and robbed in the washroom of a building in Brooklyn where they were employed. In the pocketbook that the robber snatched from one of them was a bank passbook and a deposit slip. Defendant, apprehended a short time later, was found with those articles in Ms possession. Upon the trial, the prosecution introduced proof of the robbery and testimony, including evidence of a plea of guilt subsequently withdrawn, pointing to defendant as the perpetrator. In defense, defendant denied that he was the robber or that he stole the pocketbook. He testified that he was in the building where the holdup had occurred, visiting his draft board, and that, leaving the premises, he found an envelope containing the passbook and the deposit slip.

When the proof was in and the summations over, the trial judge charged the jury at considerable length. After a statement of general principles and a reading of the indictment as well as of the statutes defining robbery and larceny, the judge went on to say that, if defendant “ committed robbery he also committed larceny and assault, because larceny and assault are contained in the robbery. * * * So if he is guilty of robbery he is guilty of the larceny and the assault.” Then, following a detailed summary of the facts, the judge concluded his charge with the instruction that the jurors might find defendant guilty as charged in the indictment if they “ decide that a robbery was committed. If a robbery was committed, you may find him guilty of every charge in the indictment. If you find that a robbery was not committed * * * then you may find him guilty of one or the other count in the indictment: You may find him guilty either of count two or count three.”

After defendant’s counsel pointed out that the mere reference to count two or three left the matter less than clear, the judge called back the jurors and told them that, if they did not conclude that defendant had committed a robbery, “ you may find him guilty of petit larceny, if he merely stole the articles mentioned * * *. Or, you may find him guilty of the third count of the indictment, which is assault in the second degree.” That part of the charge, defendant’s counsel then stated, was satisfactory ”.

To the jury, however, that explanation was apparently far from satisfactory. After some three hours of deliberation, it returned, with the request that the judge “ Repeat that section of the charge as regards the possible verdicts.” In response, the judge merely advised that “ You may find the defendant not guilty, or you may find him guilty as charged in the indictment, or you may find him guilty of one of the counts of the indictment. That answers that question. Is there any question on that point? ” Quite obviously, that instruction explained nothing, for it immediately evoked the basic query, “ What are the three different counts? ” That should have alerted the judge to the fact that he had failed to instruct the jurors with sufficient clarity on the essentials of the case. Instead of telling them what they wanted and needed to know, he proceeded again to refer merely to the first count — of robbery — and only to the first count. That, of course, was no help at all, and, in answer to the judge’s further question, “ have I made that clear? ”, a juror replied, “ No ”.

Certainly, at that point, the judge should have taken particular pains to clarify all possible doubts. He had already stated that robbery was the unlawful taking of property by means of force or fear of injury and that, if defendant was guilty of robbery, he was also guilty of larceny and assault. At the very least, having in mind the defense here asserted, he should have instructed the jurors that they might find defendant not guilty of robbery, and yet guilty of larceny if they concluded that he found and appropriated “ lost property under circumstances which give [the finder] knowledge or means of inquiry as to the true owner * e * without having first made every reasonable effort to find the owner and restore the property to him ” (Penal Law, § 1300). The judge, however, made no attempt at such elucidation. All he did — and this for the third time since the jury had returned — was to explain the robbery count, repeating that, if defendant ‘ ‘ committed robbery * # * you may find him guilty of that count and disregard the other two counts. That simplifies it. * * * or if you find that he is guilty of robbery and an assault as I have defined it, and also stealing the pocketbook, or whatever it was, you can find him guilty as charged in the indictment.” And, at the end of this recital, he added, in virtually the same general language that the jury had, in the charge proper, found inadequate, ‘ ‘ your verdict may be guilty of robbery in the second degree or guilty of petit larceny or guilty of assault in the second degree or not guilty.”

The jury’s initial request for additional instructions, as well as its subsequent questions, manifested a doubt as to the elements of the several crimes and as to the possible verdicts returnable. It is difficult to fathom the reason for the judge’s failure to clarify the subject and even more difficult to understand his repeated emphasis on the robbery count, his persistent advice that, if defendant had committed a robbery, he was also guilty of larceny and assault. His belaboring of this point may have planted in the jurors’ minds the thought that, in the court’s view, the evidence established a robbery and called for a verdict of guilt upon all three counts.

The court’s responses to the questions posed by the jurors constituted a refusal to reinstruct them as to an applicable proposition of law, a refusal to clarify their doubts. * * *

‘ The very fact that the jury, after having been in consultation, have failed to comprehend the instructions given in the charge * * * is of itself sufficient to show the necessity of additional instructions. # * if the jury do not understand the instructions, or are ignorant or uncertain as to the law applicable to any part of the case, the charge is inadequate and fails of its purpose ’ ”. (People v. Gonzalez, 293 N. Y. 259, 261, 262-263; see, also, People v. Flynn, 290 N. Y. 220, 224; People v. Odell, 230 N. Y. 481, 487-488.)

It may well be, as urged upon us, that every sentence that the judge uttered, taken by itself, was an accurate statement of law, but justice and its proper administration demand more. A study of the instructions in their entirety, particularly when considered in the light of the jurors’ repeated requests for further enlightenment, reveals that the jury was never given any clear notion of the only real question before it — the elements of the several crimes charged and the alternative verdicts possible. A court’s charge is not like a corporate indenture, able to be studied at leisure, valid if all technical recitals are to be found within its four corners. Bather, it is a means to guide laymen, in plain and practical fashion, in the discharge of a solemn responsibility. The charge in the case against Lupo served no such function and, accordingly, he is entitled to a new trial.

The judgments should be reversed and a new trial ordered.

Lewis, Ch. J., Oonway, Desmond, Dye and Froessel, JJ., concur; Van Voorhis, J., taking no part.

Judgments reversed, etc.


author: Desmond, J. Fuld, J.

text:
    The People of the State of New York, Respondent, v. Franklin National Bank of Franklin Square, Appellant.
    Argued May 26, 1953;
    decided July 14, 1953.

      Charles P. Grimes, Sidney Friedman and Herbert Dannett for appellant.
    I. Insofar as section 258 of the Banking Law prohibits national banks from quoting the very words of the Federal Reserve Act authorizing them to receive and pay interest on “ savings deposits,” it directly conflicts with the purposes of Congress and the paramount laws of the United States. (Easton v. Iowa, 188 U. S. 220; Downey v. City of Yonkers, 106 F. 2d 69, 309 U. S. 590; Clement Nat. Bank v. Vermont, 231 U. S. 120; Costanzo v. Tillinghast, 287 U. S. 341; Zellerbach Co. v. Helvering, 293 U. S. 172; Hassett v. Welch, 303 U. S. 303; Pennoyer v. McConnaughy, 140 U. S. 1; Inland Waterways Corp. v. Young, 309 U. S. 517; Colorado Bank v. Bedford, 310 U. S. 41; Florida v. Mellon, 273 U. S. 12; Burnes Nat. Bank v. Duncan, 265 U. S. 17.) II. Insofar as subdivision 1 of section 258 prohibits national banks from using the words “ saving ”, “ savings ” or their “ equivalent ”, it unduly discriminates against such banks. (Mount Pleasant Nat. Bank v. Duncan, Fed. Cas. No. 4804; First Nat. Bank v. Hartford, 273 U. S. 548; Van Reed v. People’s Nat. Bank, 198 U. S. 554; Union Bank & Trust Co. v. Phelps, 288 U. S. 181; Burnes Nat. Bank v. Duncan, 265 U. S. 17; People v. Mechanics & Traders’ Sav. Inst., 92 N. Y. 7; Provident Sav. Inst. v. Malone, 221 U. S. 660; Mercantile Bank v. New York, 121 U. S. 138; Connolly v. Union Sewer Pipe Co., 184 U. S. 540; Cotting v. Kansas City Stock Yards Co., 183 U. S. 79.) III. Insofar as subdivision 1 of section 258 prohibits national banks from using the words “ saving ”, “ savings ” or their “ equivalent ”, it unduly interferes with and hampers the operations of national banks. (McCulloch v. State of Maryland, 4 Wheat [U. S.] 316; Farmers’ & Mechanics’ Nat. Bank v. Dearing, 91 U. S. 29; Davis v. Elmira Sav. Bank, 161 U. S. 275; Easton v. Iowa, 188 U. S. 220; First Nat. Bank v. California, 262 U. S. 366; Oklahoma Tax Comm. v. Texas Co., 336 U. S. 342; Penn Dairies v. Milk Control Comm., 318 U. S. 261; First Nat. Bank v. Missouri, 263 U. S. 640; Hall v. Geiger-Jones Co., 242 U. S. 539; Osborn v. Bank of United States, 9 Wheat. [U. S.] 738.) IV. There is no basis for the provision of the judgment enjoining defendant “ from in any way soliciting or receiving deposits as a savings bank ”. Not a scintilla of evidence appears that it posed as a savings bank. (People v. Binghamton Trust Co., 139 N. Y. 185; Topol v. Smoleroff Development Corp., 264 App. Div. 164; McCarty v. Constable, 221 App. Div. 307; Eton Chemists v. Sussman, 278 App. Div. 899.)

      Peter Keber and Theodore G. Metzger for New York State Bankers Association, amicus curiæ, in support of appellant’s position.
    I. Whatever the basis for legislative classification of savings accounts that may once have existed, such basis has been abandoned by the Legislature with the result that the prohibition contained in subdivision 1 of section 258 of the Banking Law no longer has any validity in fact or in law. {Hartford Co. v. Harrison, 301 TJ. S. 459; Royster Guano Co. v. Virginia, 253 TJ- S. 412; Air-Way Corp. v. Day, 266 TJ. S. 71; People v. Binghamton Trust Co., 139 N. Y. 185; People v.
      Mechanics & Traders’ Sav. Inst., 92 N. Y. 7.) II. The Legislature by gradual enlargement of the powers of savings banks has narrowed the historic legal differences between savings banks and commercial banks with the result that the original justification for the prohibition contained in subdivision 1 of section 258 has gradually tended to disappear.

      Nathaniel L. Goldstein, Attorney-General (Daniel M. Cohen and Wendell P. Brown of counsel), for respondent.
    I. Section 258 of the Banking Law, prohibiting banks other than savings banks from soliciting or receiving deposits as a savings bank in any way, and specifically by using the words “.saving ” and “ savings ” or their equivalent, constitutes a proper exercise of the police power. It is designed to protect the public from the consequences of its own ignorance and carelessness as well as from intentional misrepresentation. (Engel v. O’Malley, 219 U. S. 128; Musco v. United Sur. Co., 196 N. Y. 459; Matter of Brous v. Smith, 304 N. Y. 164; Queenside Hills Co. v. Saxl, 328 U. S. 80; Dillingham v. McLaughlin, 264 U. S. 370; Semler v. Dental Examiners, 294 U. S. 608; Trade Comm. v. Raladam Co., 316 U. S. 149; People v. Binghamton Trust Co., 139 N. Y. 185; People v. Doty, 80 N. Y. 225; Bank of Redemption v. Boston, 125 U. S. 60.) II. Congress has not authorized national banks to violate State standards of fair competition by using the word “ saving ” or “ savings ” in advertising the performance of their functions as national banks. Nor has Congress authorized national banks in any other way to masquerade as State-organized “ savings banks ”. (Commonwealth v. McHugh, 326 Mass. 249; Lewis v. Fidelity Co., 292 U. S. 559; Burnes Nat. Bank v. Duncan, 265 U. S. 17; First Nat. Bank v. Union Trust Co., 244 U. S. 416; Rushton v. Michigan Nat. Bank, 298 Mich. 417; Union Nat. Bank v. Louisville, N. A. & C. Ry., 163 U. S. 325; Middletown Trust Co. v. Middletown Nat. Bank, 110 Conn. 13; Regents v. Carroll, 338 U. S. 586; Savage v. Jones, 225 U. S. 501; Colorado Bank v. Bedford, 310 U. S. 41.) III. Section 258, which is nondiscriminatory, since it applies to State-chartered banks as well as to national banks, is constitutional. It does not violate the supremacy clause of the Federal Constitution. (McCulloch v. State of Maryland, 4 Wheat [U. S.] 316; Penn Dairies v. Milk Control Comm., 318 U. S. 261; Metcalf & Eddy
      v. Mitchell, 269 U. S. 514; State v. People’s Nat. Bank, 75 N. H. 27; Jennings v. U. S. F. & G. Co., 294 U. S. 216; First Nat. Bank v. California, 262 U. S. 366; Schramm v. Bank of California, 143 Ore. 546; Roth v. Delano, 338 U. S. 226; Matter of Baldwinsville Fed. Sav. & Loan Assn., 268 App. Div. 414; Lauer v. Bayside Nat. Bank, 244 App. Div. 601; Burnes Nat. Bank v. Duncan, 265 U. S. 17.)
   Desmond, J.

Defendant is a national bank, organized under the National Bank Act (U. S. Code, tit. 12, § 21 et seq.). Pursuant to authorization by the Comptroller of the Currency, it transacts banking business in the village of Franklin Square, Nassau County, New York. In this suit, brought by the State because of alleged violations by defendant of subdivision 1 of section 258 of the New York Banking Law, defendant has been restrained and enjoined from advertising or otherwise using the word saving ’ or ‘ savings ’ in relation to its banking or financial business in its dealings with the public, and from in any way soliciting or receiving deposits as a savings bank ”. Section 258 (subd. 1, supra) is in full as follows: “ § 258. Prohibition of unauthorised savings banks and use of the word ‘ savings ’; exceptions as to school savings.

1. No bank, trust company, national bank, individual, partnership, unincorporated association or corporation other than a savings bank or a savings and loan association shall make use of the word saving ’ or savings ’ or their equivalent in its banking or financial business, or use any advertisement containing the word ‘ saving ’ or savings, ’ or their equivalent in relation to its banking or financial business, nor shall any individual or corporation other than a savings bank in any way solicit or receive deposits as a savings bank; but nothing herein shall be construed to prohibit the use of the word ‘ savings ’ in the name of the Savings and Loan Bank of the State of New York or in the name of a trust company all of the stock of which is owned by not less than twenty savings banks. Any bank, trust company, national bank, individual, partnership, unincorporated association or corporation violating this provision shall forfeit to the people of the state for every offense the sum of one hundred dollars for every day such offense shall be continued.”

It is undisputed that defendant has, since 1947, used the words “ saving ” and “ savings ” in many different ways, in the advertising and conduct of its banking operations. It has, by advertising and otherwise, solicited ‘ savings accounts ” has put up over some of its tellers’ windows, signs containing the word “ savings ”, has a special department for “ Children’s Savings ”, refers in its literature and printed forms to its ‘ ‘ savings department ” and in general, it routinely and extensively uses the words ‘ ‘ saving ’ ’ and ‘ ‘ savings ’ ’ to bring to itself ‘ ‘ savings deposits ”, in competition with savings banks and savings and loan associations in Nassau County and elsewhere. Thus it is clear, without further elaboration of the facts, that this national bank has in fact violated so much of section 258 (subd. 1, supra) as prohibits the use of the two words “ saving ” and “ savings ”. However, we find in the record no evidence at all that defendant has violated, or threatens or intends to violate, the other prohibition of the above-quoted statute, which runs against “ soliciting or receiving deposits as a savings bank ”. Therefore, so much of the injunction as prohibits “ soliciting or receiving deposits as a savings bank ”, is unwarranted and must be stricken, regardless of anything else in the case (1 High on Injunctions [4th ed.], § 22; Exchange Bakery & Restaurant v. Rifkin, 245 N. Y. 260, 265; 28 Am. Jur., Injunctions, § 29).

That brings us to our real question: is the State statute, above quoted, unconstitutional as contravening a controlling and overriding Federal statute on the same subject, and as interfering with the operations of a national bank?

First, as to whether there is a contrary Federal statute: the enactments which, according to appellant, authorize it, as a national bank, to use and advertise the word “ saving ” or “ savings ” are in the Federal Reserve Act, and are sections 371 and 583-586 of title 12 of the United States Code. The statutory language on which appellant relies is in section 371 (U. S. Code, tit. 12), as follows: “Any such [national banking] association may continue hereafter as heretofore to receive time and savings deposits and to pay interest on the same, but the rate of interest which such association may pay upon such time deposits or upon savings or other deposits shall not exceed ”, and in sections 583-586 (U. S. Code, tit. 12 [now in U. S. Code, tit. 18, § 709]), which (in a negative sort of way) authorize national banks to advertise, and which contain no prohibition against the use, in such advertising, of the word saving ” or the word savings ” (see, also, U. S. Code, tit. 12, § 24, as to “ incidental powers ” of national banks, and Hernandez v. First Nat. Bank, 125 Neb. 199, 205). Defendant-appellant says that the matter is as simple as this: Congress has (expressly) licensed these national banks to receive “ savings deposits ” and pay interest on “ savings ”, and has (inferentially) licensed them to advertise to the public the provision of such banking services. So, says appellant, we have a direct conflict between the authorizations of the Federal statutes and the prohibitions of the State Banking Law.

There is no dispute as to the respective roles which the United States Government and the several States play, generally, in regulating national banks. Under section 8 of article I of the Federal Constitution, Congress has power to, and does, incorporate national banks and has the paramount power of regulating them; any applicable Federal laws are supreme in the field; national banks are subject in many ways to the general laws of the States in which they exist, and must abide by State regulations insofar as the latter do not collide directly with Federal laws, and insofar as they do not frustrate national banking policy or impair the position of national banks in discharging their duties; national banks must obey all nondiscriminatory State laws which do not interfere with the functioning of the banks, and which do not contravene Federal laws (First Nat. Bank v. California, 262 U. S. 366, 368; Burnes Nat. Bank v. Duncan, 265 U. S. 17; Lewis v. Fidelity Co., 292 U. S. 559, .566; Seabury v. Green, 294 U. S. 165, 169; Jennings v. U. S. F. & G. Co., 294 U. S. 216; Anderson Nat. Bank v. Luckett, 321 U. S. 233; Roth v. Delano, 338 U. S. 226, 230; Standard Oil Co. v. New Jersey, 341 U. S. 428, 441; Lauer v. Bayside Nat. Bank, 244 App. Div. 601; Matter of Baldwinsville Fed. Sav. & Loan Assn. [Van Wie], 268 App. Div. 414, 422, 423; Clark v. First Nat. Bank of Morrisville, 130 Misc. 352, 354; United States Pipe & Foundry Co. v. City of Hornell, 146 Misc. 812, 815; Matter of Keene, 152 Misc. 424,425; 7 Michie on Banks and Banking, ch. 15, §§ 3, 4, 5), Clearly, a national bank is subject to state law unless that law interferes with the purposes of its creation, or destroys its efficiency, or is in conflict with some paramount federal law ” (Lewis v. Fidelity Co., supra, 292 U. S., at p. 566).

Since our State statute clearly and unambiguously forbids the very thing defendant is admittedly doing, our problem comes down to this: do the Federal statutes above cited contain, or amount to, an express authorization to national banks for such activity, that is, for using the State-prohibited words “ saving ” and “ savings ”, or is the Federal statutory reference to savings deposits ’ ’ merely descriptive of a well-known type or kind of bank deposits, rather than a statutory license to use certain specified words, which in turn are forbidden in this State f We conclude, for reasons hereafter stated, that there is no direct conflict, between the Federal and State statutes, as to what national banks may and may not do by way of advertising for, and taking, “ savings deposits ”. The State of New York does not prevent defendant from carrying on a particular kind of banking business, but does forbid a misleading description of that business.

State laws promoting fairness in business transactions should, of course, apply to national banks (Schramm v. Bank of Cal., 143 Ore. 546, 578; Steadman v. Redfield, 67 Tenn. 337, 338-339; and see remarks of Justice Holmes, re competition, in Abilene Nat. Bank v. Dolley, 228 U. S. 1, 4). Our State law expresses an old, wise policy of protecting our citizens against being fooled (see People v. Binghamton Trust Co., 65 Hun 384, affd. 139 N. Y. 185, as to the legislative purpose). So read, our State statute is valid and enforcible despite a superficial, or seeming, contradiction between the phrasing of the two enactments. In other words, while the Federal statute prescribes the kind of business that national banks may carry on, the State statute, to avoid deception of our people, interdicts the use, in that Federally-prescribed business, of certain nonessential words, and there is no Federal statute relating to the use of those words, as such. Congress, while interested in protecting its creatures, the national banks, in the use of their proper powers, has no interest in their use of deceptive verbiage. The Attorney-General of New York, in his brief, makes it clear that this State does not claim for savings banks a monopoly on receipt of deposits of the “ savings ” type, but he insists that the State of New York is acting within its powers in seeing to it that members of the public are not misled into believing that commercial banks, like defendant, are mutual savings banks. He admits that the national banks are empowered to handle “ savings ” type deposits, and to advertise, but he argues that the State is not hampering either of those activities.

It is unnecessary here to describe in detail the differences between commercial and savings banks (see New York State Banking Law, arts. Ill, V, VI; 8 Michie on Banks and Banldng, ch. 16, § 1; Matter of Wilkins, 131 Misc. 188, 193; State v. People's Nat. Bank, 75 N. H. 27; Bank of Redemption v. Boston, 125 U. S. 60, and see the learned opinion of the Special Term Justice in the present case, 200 Misc. 557, 566 et seq.). The difference, shortly stated, is this: commercial banks, State and national, are profit-making business corporations owned by stockholders, while, in New York at least, savings banks are mutual institutions, having no stockholders but earning money for the depositors, the fundamental purpose of their existence being protection of small deposits, and their principal method of accomplishing that purpose being caution and conservatism in investments (see 1 Morse on Banks and Banking [6th ed.], §3).

On the question of whether this New York statute unduly impedes national banks in carrying out their lawful purposes, it is significant, although not conclusive, that this record shows that none of the national banks operating in New York State, except defendant, have used the word “ saving ” or savings ”, and that all of them (except defendant) have found it possible (although seriously inconvenient, say defendant’s witnesses) to carry on the business of receiving this type of deposit, by the use, in their advertising and other literature and business forms, of such synonymous expressions as special interest account “ thrift account ” and “ compound interest account

The New York Legislature’s design and effort to prevent deception as to savings banks has a long history. The first enactment was in chapter 132 of the Laws of 1858, which, among other things, made it unlawful for a certain kind of commercial bank to “ put forth a sign as a savings bank ” (see, also, L. 1875, ch. 371; People v. Doty, 80 N. Y. 225). The prohibition against describing a commercial bank as a savings bank was added to and strengthened by a 1905 enactment (ch. 564), which forbade the use of the word “ savings ”, by any but savings banks or building and loan associations. Thus, the general legislative purpose has been asserted for nearly a century and the statute in its present form is nearly a half century old. The validity of this purpose and the general validity of these statutes has, over and over again, been asserted by the State Attorney-General (see 1898 Atty. Gen. 265-267; 1902 Atty. Gen. 31A-315; 1907 Atty. Gen. 473-475; 1908 Atty. Gen. 382-383). The 1907 opinion contained a specific holding that national banks had no right to hold themselves out as savings banks, or to advertise as such (however, there was then no specific reference in the Federal laws to “ savings accounts ”). All of this adds up to this result: that the New York policy and method is an old and reasonable one, that it does not seem, when complied with by other national banks in this State, to have had seriously harmful effects on them, and that, accordingly, the legitimate national banldng activity, of taking and advertising for interest accounts, is not substantially interfered with by the State’s prohibition of the use of misleading words. Insofar as the record presents a question of fact as to the substantiality of that interference, the weight of evidence confirms the finding of the Appellate Division that the number of accounts of the “ savings type ” has increased greatly in those national banks in the State which have obeyed subdivision 1 of section 258, and that those national banks “ have enjoyed continued prosperity notwithstanding said statute ” (281 App. Div. 757, 758).

We see no benefit to appellant’s position in the fact that since 1905, our statute has permitted a “ savings and loan association ” as well as a “ savings bank ” to use the words “ saving ” and “ savings ”. The character and purposes of savings and loan associations are, under New York law (see Banking Law, art. X), so similar to those of savings banks as to call for the same kind of protection.

The judgment of the Appellate Division should be modified by striking from the second ordering paragraph thereof the words “ and from in any way soliciting or receiving deposits as a savings bank ” and, as so modified, affirmed.

Fuld, J.

(dissenting). While federal legislation explicitly authorizes national banks to receive “ savings deposits ” and to pay interest on “ savings ” (Federal Reserve Act, U. S. Code, tit. 12, § 371) and vests them with “ such incidental powers as shall be necessary ” (National Bank Act, U. S. Code, tit. 12, § 24, subd. 7; see Clement Nat. Bank v. Vermont, 231 U. S. 120, 140), this state’s Banking Law, in contrast, unequivocally prohibits a “national bank ” from making “ use of the word saving ’ or ‘ savings ’ or their equivalent in its banking or financial business, or use [of] any advertisement containing the word ‘ saving ’ or ‘ savings,’ or their equivalent in relation to its banking or financial business ” (Banking Law, § 258, subd. 1).

Mere reading of these two provisions reveals a conflict, patent and irreconcilable. New York’s Banking Law provision severely limits the power of national banks to do exactly what the federal statute authorizes. (See, e.g., 2 Baton’s Digest of Legal Opinions [1926 ed.], p. 1226; 1 Baton’s Digest of Legal Opinions [1940 ed.], p. 645.) The right to accept “ savings deposits ” and maintain “ savings accounts,” can mean very little if the bank, by virtue of state statute, must hide that fact or announce it in terms that fail to make it clear. Indeed, to tell a bank that it can receive “ savings deposits ”, and yet must not publicize the fact is very much like telling a property owner that he may produce vegetables, but must not water or cultivate them.

In a very real sense, the state statute hampers the conduct of banking activities deemed by the federal government to be necessary and beneficial. As the court at Special Term succinctly declared, ‘ To deny to defendant the right to invite the public by all proper means of expression at its disposal, to make ‘ savings deposits ’ with it, is to curtail the power to receive such accounts, to reduce its effectiveness as an agency handling that kind of financing — in short, to defeat one of the main purposes for which it was created by Congress. Under such conditions, one law or the other must give way. The State law must yield to the Federal law — the supreme law of the land (U. S. Const., art. VI).” (200 Misc. 557, 571.)

The state acknowledges, as, of course, it must, that national banks are empowered, as an incident of their business, to receive savings deposits ” and maintain savings accounts.” Since those activities are concededly legitimate and in the public interest, there is no basis for the claim that advertising them in the precise language of the Federal Reserve Act can be deceptive or harmful. If a national bank conducts only the type of business which the Federal Reserve Act sanctions and if it informs the public of the nature of that business by using only the exact language of the federal enactment, how may it be said — as it is (opinion of Desmond, J., p. 460) — that the state law serves the vital function of protecting our citizens against being fooled ”?

Section 258 of the Banking Law, insofar as it prohibits national banks from quoting the very words of the Federal Reserve Act, authorizing them to receive and pay interest on “ savings deposits ”, clashes with the paramount federal law and, accordingly, must be stricken as unconstitutional. (Cf., e.g., Easton v. Iowa, 188 U. S. 220, 229-230, 238; First Nat. Bank v. California, 262 U. S. 366, 368 et seq.; Fidelity Nat. Bank & Trust Co. v. Enright, 264 F. 236; Springfield Inst. for Sav. v. Worcester Fed. Sav. & Loan Assn., 329 Mass. 184, certiorari denied 344 U. S. 884.)

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

Lewis, Ch. J., Conway, Dye and Van Voorhis, JJ., concur with Desmond, J.; Fuld, J., dissents in opinion in which Froessel, J., concurs.

Judgment accordingly.

      . Virtually eliminated, it should he noted, is any risk of loss to those who maintain a "savings, time or thrift account” in a national bank; such deposits, up to $10,000 by any depositor, are insured by the Federal Deposit Insurance Corporation (Federal Deposit Insurance Act, U. S. Code, tit. 12, § 1813, subd. [1]; § 1821).


text:
    The People of the State of New York ex rel. Margaret M. Kropp, Appellant, against Joseph Shepsky et al., Respondents.
    Argued May 21, 1953;
    decided July 14, 1953.

      Samuel Morris for appellant.
    Appellant mother is a fit person to have custody of the child. (People ex rel. Flannagan v. Riggio, 193 Misc. 930.)

      Paul L. Bleakley for respondents.
    I. Appellant mother is an unfit person to have custody of the child. II. The arrangements proposed by appellant for the care and custody of the child are wholly unsatisfactory. III. The paramount and only issue is the welfare of the child. (Finlay v. Finlay, 240 N. Y. 429; Queen v. Gyngall, 2 Q. B. D. 232; People ex rel. Hagan v. Alfano, 277 App. Div. 565; Matter of Anonymous, 198 Misc. 185; Bunim v. Bunim, 298 N. Y. 391.) IV. There is no question of law to be reviewed by the Court of Appeals. (Michalski v. American Mach. & Foundry Co., 225 N. Y. 294; Frankenberger v. Schneller, 258 N. Y. 270; Bernstein v. Kritzer, 253 N. Y. 410; Merchants’ Nat. Bank v. Barnes, 172 N. Y. 618.)
   Fuld, J.

In March of 1948, petitioner, eighteen years old and unmarried, gave birth to a daughter at Our Lady of Victory Home, a charitable institution in upstate New York. Since her parents barred their home to the infant, she was compelled to leave the baby at the institution. After a year, she brought the child to New York City — where she lived with her parents — and boarded it in various places while she worked or looked for work. There came a time in August, 1949, when the mother was out of work and nearly out of funds. In desperation, she entrusted her child to a lawyer, whose daughter she knew, to be placed with a family. That same evening the lawyer took the child to defendants, and with them she has remained ever since.

A few days later, the mother signed a consent to adoption and an affidavit. She now maintains, with support in testimony of a friend, that she understood that the baby was only to be boarded out, that she made it plain that she “ was not giving [it] up for adoption ”. Be that as it may, less than two weeks later, the mother requested the child’s return and, in October, 1949, consulted attorneys — not her present lawyers — for the purpose of regaining the baby’s custody. They immediately notified the lawyer who had placed the infant with defendants that the mother desired its return. Inconclusive negotiations between the mother’s attorneys and the other lawyer went on for several months, and in the spring of the following year they sent him a letter declaring that the mother ‘ ‘ definitely will not sign any consent before the Surrogate ’ ’ and that they intended to do everything necessary to regain the child for her.”

Despite that letter, the adoption proceedings went forward, and in October, 1950, without notice either to the mother or to her attorneys, an order of adoption was signed by the County Judge of Westchester County. In June of 1951, the mother instituted proceedings seeking the vacatur of that order. The county judge granted such relief, finding that, although the mother had initially given her consent to the adoption, she had, in fact, revoked it “ before the expiration of the six months’ probationary period prescribed in Subdivision 7, Section 112, of the Domestic Relations Law, and prior to the final adoption proceeding. ’ ’

In the same revocation proceeding, the mother sought custody and was met with a challenge to her fitness to care for the child. The county judge, however, refused to rule on the question of custody, and correctly so, since, in a situation such as the present, only the Supreme Court, upon habeas corpus, may determine to whom custody should be awarded. (See, e.g., Finlay v. Finlay, 240 N. Y. 429, 432, 433; Matter of Marx v. Holloran, 236 App. Div. 680; cf. N. Y. City Dom. Rel. Ct. Act, §§ 61, 81, 83.)

The mother thereupon sued out the present petition for a writ of habeas corpus. The official referee, who presided at the trial, heard evidence and, concluding that it would be ‘ ‘ for the best interest of the child ” that it remain with defendants, denied the petition. Following unanimous affirmance by the Appellate Division, we granted permission to appeal.

Custody of children, this court has said, “ is ordinarily a matter of discretion for Special Term and the Appellate Division ” (Bunim v. Bunim, 298 N. Y. 391, 393, and see dissent, pp. 394-395), and it is only rarely that any such determination by [the Supreme Court] can raise any question of law for us.” (People ex rel. Portnoy v. Strasser, 303 N. Y. 539, 542.) However, a question of law does here confront us — a question deriving from that age-old principle of human relations that “ No court can, for any but the gravest reasons, transfer a child from its natural parent to any other person * * * since the right of a parent * * * to establish a home and bring up children is a fundamental one and beyond the reach of any court (Meyer v. Nebraska, 262 U. S. 390, 399).” (People ex rel. Portnoy v. Strasser, supra, 303 N. Y. 539, 542.) In the light of that principle, we find no basis for denying custody of the child to petitioner, its natural parent, who did not abandon it and against whom no showing of present unfitness has been made.

It has often been said that a child’s welfare is the first concern of the court upon a habeas corpus proceeding, where the judge acts “ as parens patriae to do what is best for the interest of the child.” (Finlay v. Finlay, supra, 240 N. Y. 429, 433; see, also, People ex rel. McCanliss v. McCanliss, 255 N. Y. 456; People ex rel. Pruyne v. Walts, 122 N. Y. 238, 242.) However valid this statement may be in a contest for custody involving the parents alone, it cannot stand without qualification in a contest between parents and nonparents. The mother or father has a right to the care and custody of a child, superior to that of all others, unless he or she has abandoned that right or is proved unfit to assume the duties and privileges of parenthood. (See, e.g., People ex rel. Portnoy v. Strasser, supra, 303 N. Y. 539,542; People ex rel. Beaudoin v. Beaudoin, 193 N. Y. 611, affg. 126 App. Div. 505; Matter of Livingston, 151 App. Div. 1, 7; cf. Matter of Gustow, 220 N. Y. 373.) Accordingly, we have sanctioned withholding the child from the custody of a parent who has abandoned or transferred the parental right, either expressly or by implication. (See, e.g., Matter of Benning [Nigro], 303 N. Y. 775; Matter of Gustow, supra, 220 N. Y. 373; cf. Matter of Bock [Breitung], 280 N. Y. 349; Matter of Stuart, 280 N. Y. 245.) And, quite obviously, a parent who is “ a drunkard, an incompetent, a notoriously immoral person, cruel or unkind towards Ms cMld ” (Matter of Gustow, supra, 220 N. Y. 373, 377), may have the cMld taken from him.

Apart, however, from such special and weighty circumstances, the primacy of parental rights may not be ignored. In no case may a contest between parent and nonparent resolve itself into a simple factual issue as to wMch [affords] the better surroundings, or as to which party is better equipped to raise the cMld.” (People ex rel. Portnoy v. Strasser, supra, 303 N. Y. 539, 542.) And that is true even if the nonparent initially acquired custody of the child with the parent’s consent. (See, e.g., People ex rel. Beaudoin v. Beaudoin, supra, 126 App. Div. 505, 507, affd. 193 N. Y. 611; cf. Matter of Bistany, 239 N. Y. 19.)

Except where a nonparent has obtained legal and permanent custody of a cMld by adoption, guardianship or otherwise, he who would take or withhold a child from mother or father must sustain the burden of establishing that the parent is unfit and that the cMld’s welfare compels awarding its custody to the non-parent. (See, e.g., People ex rel. Portnoy v. Strasser, supra, 303 N. Y. 539, 542; Matter of Gustow, supra, 220 N. Y. 373.) Where consent initially given to a child’s adoption, often under the pressure of circumstances, is thereafter withdrawn (see, e.g., Domestic Relations Law, § 112, subd. 7), the case falls within the rule and not witMn the exception. In other words, the burden rests, not, for instance, upon the mother to show that the child’s welfare would be advanced by being returned to her, but rather upon the nonparents to prove that the mother is unfit to have her cMld and that the latter’s well-being requires its separation from its mother. (Cf. Matter of Bock [Breitung], supra, 280 N. Y. 349, 353; Matter of Thorne, 240 N. Y. 444, 449-450; Matter of Bistany, supra, 239 N. Y. 19, 24.)

Here, no finding of present or prospective unfitness has heen made against the mother. The trier of the facts did not deny her counsel’s assertion that since 1949 she “ has led an upright life and been steadily employed ”, and, indeed, he could not have done so, for nothing in the record would support such a finding. Instead, he found the mother “ untruthful ” and pointed to a serious indiscretion ” in her past. The crux of his determination, though, was that her plan for the care of the child was not feasible ” and that it would be for the best interest of the child ” to remain with defendants — even though they could not legally adopt it in the face of the mother’s refusal to assent thereto (Domestic Relations Law, § 111). In short, the referee did what this court in the Portnoy case (supra, 303 N. Y. 539) held may not be done. He merely sought to balance the material advantages which the mother could give the child against those offered by the foster parents and decided in favor of the latter.

Turning to the case on behalf of petitioner, several witnesses attested to her good character and her fitness as a mother, and she herself testified that, although she intends eventually to marry, she plans — if she regains her child — to live with an older woman who will, while the mother is at work, care for the child along with two of her own grandchildren in a home with spacious grounds on Long Island. It is of some significance,' though not by any means decisive, that those surroundings compare most favorably with defendants’ somewhat crowded quarters in an apartment house whose entrance is just a door away from a bar and grill. At any rate, the plan proposed of a home in Long Island is in its nature neither unwise nor unfeasible and furnishes no legal basis for rejecting the mother’s petition.

In point of fact, the only evidence reflecting on the mother’s fitness concerned incidents which occurred four years ago when she was but twenty years old, without funds or a job, rejected by her parents so long as she insisted on being with her child. Of course, we do not say, even considering her desperate situation, that her conduct was beyond criticism or above reproach, but we must recognize, in assessing her fitness for the duties of motherhood, that the courts may not weigh too heavily indiscretions of long ago.

In view of the mother’s way of life during the past several years, her manifest devotion to her child, her persistent efforts to regain its custody in the face of great obstacles, her steady employment and her provision for a suitable home in which to rear the child, a finding that she was other than fit to assume the child’s custody would be erroneous as a matter of law, and nothing in the record supports even an inference that the child’s welfare would be promoted by being kept from the mother. In a word, there was no warrant for denying the mother’s petition.

The orders should be reversed, without costs, the writ of habeas corpus sustained and the custody of the child awarded to petitioner.

Lewis, Ch. J., Conway, Desmond and Froessel, JJ., concur with Fuld, J.; Dye and Van Voorhis, JJ., dissent and vote to affirm.

Orders reversed, etc.