author: Kellogg, J. Crane, J.

text:
    Anna S. Haefeli, as Administratrix of the Estate of Edward Haefeli, Deceased, Appellant, v. Woodrich Engineering Company, Inc., et al., Respondents.

      (Argued January 14, 1931;
    decided February 10, 1931.)

      Joseph M. Proskauer, J. Alvin Van Bergh, Jesse L. Rosenberg and Irving Ditchik for appellant.
    Defendants were responsible for the negligent construction and maintenance of the cesspool and cannot evade liability behind the so-called independent contractor. (Hooey v. Airport Construction Co., 253 N. Y. 486; Mortensen v. Magoba Constr. Co., 248 N. Y. 577; Caspersen v. La Sala Bros., 253 N. Y. 491; McNamara v. Eastman Kodak Co., 220 N. Y. 180.) The court’s charge was a correct statement of the law. (Storms v. Lane, 223 App. Div. 79; Terranova v. City, 158 App. Div. 489; Hansen v. N. Y. Dock Co., 159 App. Div. 866; Muhlens v. Obermeyer, 83 App. Div. 88; Schmit v. Gillen, 41 App. Div. 302; Zurich General Accident Co. v. Childs Co., 253 N. Y. 324.) The evidence was sufficient to justify the submission of the liability of the individual defendant to the jury. (Page v. Dempsey, 184 N. Y. 245.)

      James C. Van Siclen, Edgar J. Treacy and William F. Ryan for respondents.
    Plaintiff not only failed-to show negligence on the part of the defendants but proved contributory negligence on the part of plaintiff’s intestate. (Schrader v. N. Y. C. & St. L. R. Co., 254 N. Y. 148; Adams v. Bullock, 227 N. Y. 208; Van Leet v. Kilmer, 252 N. Y. 454; Troidle v. Ad. P. & L. Co., 252 N. Y. 483; Palsgraf v. L. I. R. Co., 248 N. Y. 339; Latini v. Zavodnick-254 N. Y. 346; Hexamer v. Webb, 101 N. Y. 377; Besner v. Central Trust Co., 230 N. Y. 357; Schaefer v. De Neer, gaard, 196 App. Div. 654; Martin v. Petit, 117 N. Y. 118; Trustees of Canandaigua v. Foster, 156 N. Y. 354; Kirby v. Newman, 239 N. Y. 470.) The trial court erred' in the admission and exclusion of evidence. (Noah v. Bowery Savings Bank, 225 N. Y. 284; Dougherty v. Milliken, 163 N. Y. 527; Van Wycklen v. City of Brooklyn, 118 N. Y. 424; Ferguson v. Hubbell, 97 N. Y. 507.) The trial court’s charge was inadequate, prejudicial and erroneous. (People v. O’Dell, 230 N. Y. 481; Trulock v. Kings Co. Foundry, 216 App. Div. 439; Herka Realty Co. v. La Salle Mil. Academy, 229 App. Div. 668; Matter of Taylor, 197 App. Div. 865.)
   Kellogg, J.

Edward Haefeli and Arnold McDonald, partners in the scavenger business, contracted to clean a cesspool maintained by the Woodrich Engineering Co., Inc. While Haefeli was stationed in the cesspool shoveling the sludge into pails, the arched top of the cesspool fell in, causing his death. This action was thereafter brought, by the administratrix of the estate of Edward Haefeli, to recover damages for his death, against the Woodrich Engineering Company and its president, Philip H. Dein. The complaint charged these defendants with negligence in the construction and maintenance of the cesspool. A verdict for a substantial sum was recovered against both defendants.

On an appeal to the Appellate Division, that court handed down a memorandum of decision reversing the judgment entered upon the verdict upon the law and the facts,” and granted a new trial. The memorandum stated: We are of opinion that the charge, in its entirety, failed to state adequately the duty of the defendants with respect to the maintenance of the cesspool and the duty of the decedent in using it.” (229 App. Div. 742). Subsequently, the order of reversal was resettled to read that the judgment was reversed upon the law, and a new trial granted,” and judgment was entered accordingly. (229 App. Div. 749).

There is no rule of the common law, and in this State no statutory command, requiring a trial judge to give instructions to a jury in a civil case in respect to every legal proposition which may be pertinent to the issues. (Jones v. State of Ohio, 20 Ohio, 34; State v. Straw, 33 Me. 554; Kent v. Tyson, 20 N. H. 121; Hall v. Weir, 1 Allen, 261; Davis v. Elliott, 81 Mass. 90; Bain v. Doran, 54 Penn. St. 124; Pennock v. Dialogue, 2 Peters [U. S.], 1; Parsons v. Brown, 15 Barb. 590.) In general, then, while misdirection is error, non-direction is not.” (Thompson on Trials, vol. 2, § 2346.) The English courts hold that “ non-direction is only a ground for granting a new . trial where it produces a verdict against the. evidence.” (Great Western Railway Co. v. Fawcett, 8 Law Times Rep. 31.) Doubtless an appellate division, for lack of a charge or its insufficiency, upon an appeal from an order denying a new trial, deeming that a fair trial has not been had, may in its discretion reverse and order the case retried. (McKellar v. American Synthetic Dyes, 229 N. Y. 106; Muldoon v. Dock Contractor Co., 199 App. Div. 733; Haas v. King, 216 App. Div. 821.) However, no error of law is involved unless the trial judge, upon a specific request, has declined to give appropriate instructions. Consequently, the reversal here, expressed to be upon the law,” may not be sustained, unless for error (1) in denying a motion to dismiss, (2) in receiving incompetent or rejecting competent evidence, or (3) in delivering incorrect instructions or refusing to charge correctly.

The cesspool, through the collapse of which Haefeli met his death, -was circular in form with an arched top. Its greatest diameter was eight feet; its depth was fifteen feet. It was walled up with round or oblong stones, without cement, for a height of seven feet. From this point upward the walls of the structure were made to taper in to form an arch or dome. Round or oblong stones were employed to make the arch, as they had been to form the walls below. At the center of the arch an opening or manhole two feet square was made to appear. Over the manhole a flagstone was placed; over the arch and flagstone, after the structure had been completed, dirt to the depth of three feet, a mass totaling ten tons in weight, was piled. Several witnesses testified that the stone, taken from the cesspool after the cave in, showed no signs that concrete had been applied when they were laid in the arch. Others saw traces of cement upon some of the stone. A witness who superintended the construction of the cesspool on behalf of the Woodrich Engineering Co., Inc., said that concrete had been applied. What the quantities were; what proportion of cement the mixture contained; how the mixture was applied — to these questions the record supplies no answer. It has been said that Buildings, properly constructed do not fall without adequate cause^’ (Mullen v. St. John, 57 N. Y. 567, 569); that a " falling wall is evidence that there was negligence on the part of some one ” (Hooey v. Airport Construction Co., 253 N. Y. 486, 489). In the absence of earthquake, storm, tempest or external violence of any kind (Mullen v. St. John, supra), the arch of the cesspool must have fallen because it was defectively constructed to bear the load which was placed upon it.

It is undisputed that the semi-solids contained in a leeching cesspool must frequently be removed; that cleaners must frequently descend into the cesspool to shovel the sludge into pails that it may be removed. The constructor of the cesspool must reasonably anticipate that these things will be done and must reasonably provide for the safety of those who do them. It is said that the constructor, in this instance, could not reasonably have anticipated that the cesspool would be entered by means of a ladder, -as Haefeli entered it; and, therefore, was not required to make the cesspool safe for such an entry. This suggestion is based upon the testimony of a single witness who said that the usual method of entry was by means of a rope held by men standing at the brink of the manhole rather than by a ladder. The sole reason which the witness gave for this practice was the avoidance of a danger that the foot of an inserted ladder might strike the uncemented stones of the vertical walls and cause them to be dislodged. In our case it is undisputed that the ladder which Haefeli descended was inserted and held in a position almost vertical. Consequently, the peril to which the witness made allusion was in this instance avoided. No testimony was given to indicate that the weight of a man, descending upon a ladder held in a position almost vertical, will create a thrust against the side of the manhole, causing a greater strain upon the arch than the vertical thrust, which would be caused by the weight of several men standing at the edge of the opening to lower a cleaner upon a rope. Moreover, in opposition to the testimony thus given, the city inspector, by whom permits for the cleaning of cesspools were given, stated that while the department did not advocate the use of a ladder we do not say they must not use it, - but it is up to their own volition.” We think that the jury may reasonably have inferred that the cesspool was not designed or constructed to bear a load upon it which might reasonably have been anticipated; that there was negligence involved in its design or construction.

All non-trespassing visitors upon the lands of another, for the purpose of determining the relative duties of the occupant towards them, are classified either as “ Gratuitous Licensees ” or Business Visitors.” (Restatement of the Law of Torts, American Law Institute, §§ 201, 202.) The business visitor is one who comes upon the land, at the- instance of the occupant, for purposes “ directly or indirectly connected with any purpose, business or otherwise, for which the possessor uses the land.” (Id. § 202.) Haefeli and McDonald, invited by the Woodrich Engineering Co., Inc., the possessor of the cesspool, to enter and clean it-for a price, were clearly there upon the business of the occupant, and were, therefore, business visitors. A business visitor is entitled to expect that the occupier shall on his part use reasonable care to prevent damage from unusual danger which he knows or. ought to know.” (Indermaur v. Dames, 14 Law Times Rep. 484.) The owners in such a case are bound to see that the premises are reasonably safe, and if they are- not safe, and the owners could know of the dangerous condition and negligently did not know of it, they are liable for damages caused.” (Sutcliffe v. Clients Investment Co., [1924] 2 K. B. 746.) An occupant of land owes to the servants of an independent contractor, employed to do work thereon, the duty of exercising ordinary care to render the premises reasonably safe for the performance of the work. (Sommer v. Public Service Corp., 79 N. J. L. 349; Richards v. Consolidated Lighting Co., 90 Vt. 552; Spry Lumber Co. v. Duggan, 182 Ill. 218; Crimmins v. Booth, 202 Mass. 17; Pauckner v. Wakem, 231 Ill. 276; Hupfer v. National Distilling Co., 114 Wis. 279; Galvin v. Mayor, etc., of New York, 112 N. Y. 223; Quinn v. Staten Island R. T. Ry. Co., 224 N. Y. 493.) If such a duty is owed to the employees of an independent contractor, all the more is it owing to the contractor himself, for the latter has contractual relations directly with the occupant while the former have none. The restatement sums up the matter by saying that an occupant is hable for bodily harm caused to business visitors if “ he knows, or by the exercise of reasonable care could discover ” the dangerous condition of his premises, and fails “ to make the condition reasonably safe, or to warn them of the condition and the risk involved therein.” (§ 213.)

The cesspool was constructed by a man named Lebette for a lump sum price. The Woodrich Engineering Co., Inc., was to furnish all the material, and did in fact supply the round or oblong stone, and all the cement which was used. Walter H. Dein, a brother of the company president, Philip H. Dein, was in charge, for the company, of all cesspool construction work; he was the superintendent ” of the work; he supervised ” the construction of the cesspool. Walter Dein testified that no written plans were made for the cesspool; that the “ job was to be done in such a manner as was agreed upon ” between himself and Lebette. Philip Dein testified concerning his brother that he watched the construction and saw that it was built up according to the way cesspool construction is done.” It cannot be denied that Walter H. Dein, the alter ego of the Woodrich Engineering Co., knew and approved of the plan of construction; knew and approved of the use of round stone; parceled out the cement and knew the amount of concrete mixture employed and the quantities used. Assuming, as we must, that the structure was improperly built to withstand a load reasonably to have been anticipated, Walter Dein, and, therefore, the defendant company, ought to have known that the cesspool was in a dangerous condition. Therefore, within the principles which have been stated, the defendant Woodrich Company, in inviting Haefeli and McDonald to work upon the cesspool, without giving warning of its dangers or remedying its defects, was guilty of negligence.

It has been held that the owner of a building in the course of construction, who has intrusted the planning of the building to a competent architect, and its erection to a competent contractor, is not liable for harm done to persons lawfully in the building, through its collapse because of faulty design or faulty construction. (Burke v. Ireland, 166 N. Y. 305; Herman v. City of Buffalo, 214 N. Y. 316.) These cases were decided upon the assumption that the owner took no part in supervising the construction; that he had no knowledge that the structure was inherently dangerous. Where these facts appear, the rule is otherwise. (Hooey v. Airport Construction Co., 253 N. Y. 486; Caspersen v. La Sala Bros., 253 N. Y. 491.) True, an owner, who contracts for the erection of a building, may not be hable, on the principle of respondeat superior, for the acts or omissions of the contractor or his servants, or for those of the architect. He is hable, however, as we have seen, where, after the construction work is completed, having full knowledge that the structure is dangerous, or reasonable grounds to believe that it is defective, he invites others to perform work within the structure, and neither warns them of the danger involved, nor takes reasonable steps to avert the peril.

We find, therefore, that the trial court was not in error in refusing to dismiss the action as against the defendant Woodrich Engineering Co., Inc. We find no error in the reception or rejection of evidence. The defendants complain that the court charged the jury as follows: “ As I say, Haefeli had a right to assume that everything was O. K. in that cesspool when he started down.” We think the charge is correct. A business visitor is entitled to expect that the possessor will take reasonable care to discover the actual condition of the property and either make it safe or warn him of its dangerous condition.” (Restatement of the Law of Torts, § 213.) They complain of the charge: I do not feel, gentlemen, under the evidence here, that it is a question of an independent contractor.” Even if we assume that Lebette, who constructed the cesspool, was an independent contractor, which is doubtful, nevertheless, for the reasons given, we do not think that the possessor was thereby relieved from liability. The charge does not otherwise appear to be erroneous. We think, therefore, that as against the defendant Woodrich Engineering Co., Inc., the judgment of the trial court should be reinstated.

It has been said: But the agent or servant is himself liable as well as the master, where the act producing the injury, although committed in the master’s business, is a direct trespass by the servant upon the person or property of another, or where he directs the tortious act.” (Murray v. Usher, 117 N. Y. 542, 547.) There is no proof in the case that Philip H. Dein, the codefendant of the Woodrich Engineering Co., Inc., designed the cesspool in question; determined its method of construction; gave orders as to the quantity or nature of the concrete mixture to be used; directed the commission of any tortious act; knew or had reason to know of any defect in plan or in construction. All these matters were committed to the judgment and supervision of Walter H. Dein, who was the superintendent in charge. We do not think, therefore, that a recovery against Philip H. Dein was permissible.

The order of the Appellate Division, as to the defendant Woodrich Engineering Co., Inc., should be reversed, and the judgment of the Trial Term affirmed, with costs in the Appellate Division and in this court; the order of the Appellate Division, as to the defendant Philip H. Dein, should be affirmed and judgment absolute be ordered against the appellant upon the stipulation, with costs in all courts.

Crane, J.

(dissenting). The Appellate Division reversed upon the law, and granted a new trial. If there be an error of law in the case we are bound to affirm the Appellate Division.

The plaintiff’s intestate was cleaning a cesspool in Hollis, Queens. The cesspool fell in and smothered him. There were two ordinances read into evidence. Section 47 of the Plumbing Rules, Exhibit I, reads:

47. Cesspools must not be used as privy vaults nor can privy vaults be used as cesspools. Cesspools and privy vaults must be located at least 15 feet from any building and on the same lot as building for which their use is intended. Wall of cesspools and privy vaults when constructed of brick must be 8 inches thick; of stone, 18 inches thick. Bottoms of cesspools and privy vaults must be of stone concrete 6 inches thick. The entire interior surface of cesspools and privy vaults must be finished with a coating of Portland cement mortar 1 inch thick.”

The Sanitary Code, section 287, marked as Exhibit A ” in' the case, reads:

Sec. 287. Privy vaults and cesspools; construction. No privy vault or cesspool shall be allowed to remain on any premises, or built in the City of New York unless when unavoidable. The sides and bottom of every privy vault, cesspool, or ‘ school sink,’ in the City of New York, must be impermeable and secure against any saturation of the walls or the ground above the same, unless otherwise allowed by a permit in writing issued therefor by the Board of Health and must then be used in accordance with the terms of said permit and the regulations of said Board. No water-closet or privy vault shall be constructed without adequate provision for the effectual and proper ventilation and cleaning thereof.”

We have here two provisions, one providing for a septic tank, and the other for a leaching cesspool. The septic tank is cemented all around on the inside, but is not necessarily built of stones cemented together. The leaching cesspool is built of loose stones so as to allow the water or fluid to permeate through.

In Queens county there are ten thousand leaching cesspools according to Hayward, inspector of the department of health.

The defendants received a permit from the health department in accordance with the ordinance to construct nine leaching cesspools, of which the cesspool in question was one. After it was constructed it was examined by the health department officials and a certificate issued allowing its maintenance. These facts are not disputed. The defendant employed a foundation and cesspool builder, an Italian, Samuel Lebette, paying him by the job, or $100 for constructing the cesspools, the material being furnished, or on the ground.

I will admit for the rule of this case only that the owner is liable for its negligence in either the construction of the sewer or in its maintenance thereafter in a dangerous condition. The violation of an ordinance in its construction would be some evidence of negligence. The jury in this case were left under the charge of the court with the impression that the plumbing ordinance applied, and that the defendants would be liable for not building a septic tank. What the court actually charged was that the jury could determine the law, and whether the defendants had violated it. If so, they would be guilty of negligence. No exception, however, was taken to this part of the charge. The court also charged the jury that Lebette was not an independent contractor, and that the owner was liable for his negligent construction. Later he left it to the jury to say whether or not Lebette was a contractor, without stating the consequences flowing therefrom. There is evidence from which the jury could find that Lebette carelessly built the cesspool, and there was also evidence from which they could have found that the deceased did not do the work properly or exercise the care necessary in working in such places.

Although the cesspool caved in, there was no absolute liability upon the owner; its negligence had to be proved by the plaintiff, and was not res ipsa loquitur. Under these circumstances the defendant was entitled to the benefit of the ordinance permitting the leaching cesspool, and should not have been held to the presumption of negligence for failure to have a septic tank. Requests or exceptions might have brought this matter clearly to the attention of the jury or the court, but the fact is that the matter was left in doubt, or the jury told to select the. law for themselves. We cannot review this part of the charge or these rulings, to which no exceptions were taken, but we may consider other rulings, the materiality of which will be augmented by these parts to which reference has been made. The court said in its charge: We have had much, gentlemen, in the way of presentation here, and exhibits in the case, of the regulations of the Health Board, of the Building Department, and all of that. Has there been anything here done in the construction of this cesspool which in your opinion convinces you that these defendants, or either of them, were guilty of a breaking of the laws? If there has been a wilful omission on their part to follow the law, if they have broken an ordinance, in any of these departments, and you consider that the element contained in those ordinances that have been brought to your attention, if that had any causal connection with this accident, that would be of interest to you. For instance, I recall the section that had to do with the fifteen foot distance from the house, in regard to the installation of the cesspool, and that it must be upon the lot where you find the edifice, the premises in question. We know in this case that the access to the cesspool was on the sidewalk. That naturally, therefore, could not be upon the lot, but did that have any real connection with the collapse? That would be one of the questions, gentlemen, that I call to your attention to consider, because an omission to follow the law strictly would be something for you to consider, if you feel that that in any way contributed, that failure to follow the strict provisions of the law or the ordinance, that would be for you to consider as a part of the case; and to dismiss and not consider it if you did not think it was an integral part and controlling and causal part of this situation.”

To this part of the charge the defendants took an exception, and to all the judge said regarding the fifteen-foot provision and the sidewalk (fol. 605).

To my mind this was reversible error and justified the action of the Appellate Division in sending the case back for a new trial. The fifteen-foot provision contained in the plumbers’ ordinance reads as follows: “ Cesspools and privy vaults must be located at least 15 feet from any building and on the same lot as building for which their use is intended.” This had nothing whatever to do with the case. The negligence claimed was in the defective construction of the cesspool; its location had nothing whatever to do with its construction. The plaintiff based no cause of action upon location, yet the judge left it to the jury to determine whether this ordinance had been violated in this particular; left it for them to say whether the violation bore upon the case. The judge should have told them that the location had nothing to do with the case; that they could not consider in any way the construction within fifteen feet and under the sidewalk as proof of negligence. The defendant is charged with negligent construction and may have been held hable for location of a proper cesspool in the wrong place. How can we tell what the jury thought? We have no more right to speculate about the operation of their minds than they have to guess at the law. When the law is correctly stated we assume the jury understood and followed it; when it has been materially misstated, we we must make the same assumption. This court at least is presumed to be consistent. In these circumstances we should be slow to reverse the Appellate Division, when it requires the reinstatement of a $35,000 judgment for negligence.

For these reasons the Appellate Division ruling was proper, and the judgment reversing on the law and granting a new trial should be affirmed and judgment absolute on the stipulation granted.

Caedozo, Ch. J., Pound, O’Brien and Hubbs, JJ., concur with Kellogg, J.; Crane, J., dissents in opinion; Lehman, J., not sitting.

Ordered accordingly.


source: Caselaw Access Project

author: Cardozo, Ch. J.

license: Public Domain

text:
    The People of the State of New York ex rel. Lee McCanliss, Appellant, v. Irene McCanliss, Respondent.

      (Argued January 7, 1931;
    decided February 10, 1931.)

      Harold W. Bissell for appellant.
    A habeas corpus proceeding by a father for custody of his infant son is not barred by the prior pending action brought by him to annul his marriage on the ground of fraud. (Queens County Co. v. O’Brien, 131 App. Div. 91; Finlay v. Finlay, 240 N. Y. 429; Davis v. Davis, 75 N. Y. 221; People ex rel. Brooks v. Brooks, 35 Barb. 85; People ex rel. Sternberger v. Sternberger, 12 App. Div. 398; 153 N. Y. 684; People ex rel. Winston v. Winston, 31 App. Div. 121; Matter of Mather, 140 App. Div. 478; People ex rel. Watson v. Buffett, 75 App. Div. 365; Simon v. Simon, 6 App. Div. 469; 159 N. Y. 549; Kamman v. Kamman, 167 App. Div. 423; Hedden v. Hedden, 178 App. Div. 957; Chamberlin v. Chamberlin, 193 App. Div. 784; Haas v. Haas, 197 App. Div. 619; McCracken v. McCracken, 217 App. Div. 873; Stillman v. Stillman, 240 N. Y. 268; National Fire Ins. Co. v. Hughes, 189 N. Y. 84; Consolidated Co. v. Wisner, 38 App. Div. 369; Burke v. Betts, 126 Misc. Rep. 601; Watson v. Jones, 13 Wall. 679; People ex rel. Duryee v. Duryee, 188 N. Y. 440; People ex rel. Riesner v. Hospital, 230 N. Y. 119.) Appellant has adopted the procedure prescribed by law to obtain custody of his child. (Matter

      of Lee, 220 N. Y. 532; Matter of Leggat, 47 App. Div. 381; 162 N. Y. 437; Domestic Relations Law, § 70; People ex rel. Riesner v. Hospital, 230 N. Y. 119; Finlay v. Finlay, 240 N. Y. 429; People ex rel. Tweed v. Liscomb, 60 N. Y. 559; McCanliss v. Morschauser, 225 App. Div. 692; People ex rel. Corkran v. Hyatt, 172 N. Y. 176; People ex rel. Ledwith v. Board, 238 N. Y. 403; People ex rel. Perkins v. Moss, 187 N. Y. 410; People ex rel. Stabile v. Warden, 202 N. Y. 138; People ex rel. Bullock v. Hayes, 215 N. Y. 172; People ex rel. Brinkman v. Barr, 248 N. Y. 126; People ex rel. Farrington v. Mensching, 187 N. Y. 8.)

      Frederick C. McLaughlin, John Reynolds and Wilder Goodwin for respondent.
    The remedy of habeas corpus was not available to the appellant. (Jones v. Brinsmade, 183 N. Y. 258; Sorenson v. Sorenson, 122 Misc. Rep. 196; Murphy v. Murphy, 194 App. Div. 395; Eversley on Domestic Relations [4th ed.], 590; People v. Kling, 6 Barb. 366; People v. Landt, 2 Johns. 375; Matter of Doyle, Clarke, 157; Finlay v. Finlay, 240 N. Y. 429; Matter of Standish, 197 App. Div. 176; 233 N. Y. 689; Davis v. Davis, 75 N. Y. 221; People ex rel. Klee v. Klee, 202 App. Div. 592; Matter of McDevitt, 101 Misc. Rep. 588; Horner v. United States, 143 U. S. 570; People ex rel. Doyle v. Atwell, 232 N. Y. 96; Matter of Delano, 37 Mo. App. 185.)
   Cardozo, Ch. J.

The relator and the respondent were married in April, 1923, and lived together as husband and wife till December, 1927.

The month following the separation, the husband began an action against his wife for the annulment of the marriage. He complained that fraudulent representations had been made to him as to her origin, her legitimacy and the moral character of her parents. The wife appeared and answered.

Three months later, the relator sued out a writ of habeas corpus under section 70 of the Domestic Relations Law (Cons. Laws, ch. 14), to determine the custody of a child, the offspring of the marriage, a boy of four years. He alleged in his petition that the. child was in danger of being corrupted in morals if permitted, to remain in the custody of the mother.

Upon the return to the writ, the respondent made the objection that the relator could not maintain the proceeding while the annulment suit was pending, and that by the bringing of that suit he had made an election of his remedy and was barred from any other. The objection was overruled, the court directing the parties to litigate the merits. By immemorial tradition the aim of habeas corpus is a justice that is swift and summary. If that be the aim, there was here a signal failure to attain it. The proceeding lasted for two years. There were thirty-two hearings, at which testimony was given by forty-nine witnesses, with the result that the printed record now before us covers five large volumes or over 3,100 pages. At the end, the trial judge, instead of confining himself to an oj-der, the usual practice in such proceedings, made elaborate findings, 209 in number. He not only found against the wife in respect of all the charges made against her by the husband in the action for annulment. He even found against her as to a defense pleaded in that action to the effect that the husband had cohabited with her after knowledge of the fraud. The false representations may have had a bearing, though not of necessity a controlling one, upon the fitness of a mother to have the custody of this little boy, and even perhaps upon her fitness to divide it with the father. By this we do not mean to say that any finding of the fraud that is made in this proceeding will be proof in favor of the husband in his action to annul the marriage. Findings of evidentiary facts though germane to the proceeding in which they have been made, are not always conclusive in another as part of the thing adjudged (Campbell v. Consalus, 25 N. Y. 613; Silberstein v. Silberstein, 218 N. Y. 525, 528; Mehlhop v. Central Union Trust Co., 235 N. Y. 102, 108). All that is in issue in this proceeding, the ultimate fact to be determined, is the apportionment of custody between the father and the mother (Freeman on Judgments [5th ed.], vol. 2, § 829). For the determination of that issue, some of the facts recited in the findings are not even evidentiary. They are foreign to the controversy, and should have no place in the decision. Not by any stretch of imagination was it necessary in determining the custody most beneficial to the child to pass upon the merits of the defense of condonation.

The findings of fraud in the inducement of the marriage must not be thought, however, to exhaust the case for the relator. They are accompanied by others, which, if supported by the evidence, have a closer relation to the welfare of the infant. The respondent was not charged with adultery, and the judge made it plain by his decision that there was not even cause for suspicion that she had been guilty of that offense. He found, however, that she professed immoral views as to the relations between the sexes and the duty of marital fidelity. He found that some of her associates were persons of loose morals and of corrupting habits of speech, and in particular that there had been a willful exposure of the child to contaminating contact with a man of evil life. The upshot was an order whereby the boy was given over to the custody of his father, the mother being given the privilege of visiting him between the hours of four and six on Monday of each week, and not even then if the child was at school or on vacation.

There was an appeal to the Appellate Division. That court reversed the order upon the law and dismissed the proceeding. It said in its opinion that at the time of the petition for the writ there was pending an action for the annulment of the marriage; that the husband had prayed n his complaint for an adjudication as to the custody of the child; and that in face of the pendency of the annulment suit, in which judgment awarding the custody of the child to the respondent is sought, the habeas corpus proceeding should have been dismissed.”

We are unable to give assent to the holding that the action for the annulment of the marriage is a bar to a proceeding by habeas corpus for a determination, ■ as between the parents, of the custody of a child (Domestic Relations Law, § 70).

The rights and wrongs of the contending spouses will be the decisive considerations in the action for annulment. In the proceeding by habeas corpus the supreme consideration is the welfare of the infant (Finlay v. Finlay, 240 N. Y. 429, 431; People ex rel. Riesner v. New York N. & C. Hospital, 230 N. Y. 119, 124). The conclusion is unthinkable that a child subject to immoral influences must be left in the corrupting custody while father and mother debate their private grievances. There was ample power in the Appellate Division to deal with the controversy according to its conception of the merits. If the custody was not corrupting, it might have reversed or modified the order. Conceivably, it might have reversed in the exercise of its discretion if the danger was not imminent, with the result that the adjudication of the custody could be postponed without prejudice until the termination of the action. It did nothing of the kind. Without passing upon the merits either to approve or to disapprove the conclusion of the trier of the facts, it dismissed the whole proceeding on the ground that the pending action was a bar. For all that we can know at this time, the husband, when he proceeds to the trial of the action of annulment, will fail in his attempt to invalidate the marriage. If his complaint shall be dismissed, there will be no power in that action to adjudicate the custody (Civ. Pr. Act, § 1140; Stillman v. Stillman, 240 N. Y. 268; Finlay v. Finlay, supra). A new writ will have to issue with a renewal of the contest, for the failure of the charge of fraud will not answer the question where the infant shall be kept. The law does not wait upon these niceties of practice, it does not dally and dawdle, when what is at stake in the contest is the safety of its ward. It leaps to the rescue with the aid of its historic writ!

Holding, as we do, that the pendency of the annulment suit does not constitute a bar, we think the proper course is to remit the proceeding to the Appellate Division to pass judgment on the merits. This it has not done. The order of reversal, interpreted in the light of the opinion, does not mean that the Appellate Division has weighed the findings on the merits, and disapproved them on the law as made without any evidence whatever. If there had been an intention to reverse upon the merits, we cannot doubt, regard being had to the nature of the controversy, that the reversal would have been stated to have been made upon the facts. • The complete dismissal of the proceedings points us to the same conclusion. If the merits had been weighed, the Appellate Division would have discharged the duty imposed upon it so clearly by section 70 of the statute (Domestic Relations Law; Cons. Laws, ch. 14), and would have awarded the custody to the father or to the mother, or partly to the one and partly to the other, instead of dismissing the proceeding altogether and leaving the right to custody unsettled and in the air. Doubt, if there is any, as to the scope of the adjudication is dispelled when the order is interpreted in the revealing light of the opinion. We do not look to an opinion to override an order, yet we look to it as a guide to construction when the meaning is uncertain. The conclusion, we think, is inescapable that the merits have not yet been determined either one way or the other, and that the controversy may not be held to have been finally disposed of till the gap shall have been filled.

With the case thus remitted to it for a consideration of the merits, the Appellate Division will be free to exercise it's large discretionary powers. It will consider to what extent the findings are in accordance with the preponderating evidence. If it finds that indiscretions are fairly chargeable to the mother, it will consider whether some division of the custody, with appropriate conditions, will give adequate assurance of the welfare of the child. In posing these inquiries we have no thought to suggest the answers. The whole matter is for the Appellate Division and for its independent and unswayed discretion. Because that discretion has not yet been exercised in favor of either of the parties, the order may not stand.

The order should be reversed without costs, and the proceeding remitted to the Appellate Division for a consideration of the merits.

Pound, Crane, Lehman, O’Brien and Hubbs, JJ., concur; Kellogg, J., not sitting.

Ordered accordingly.


author: Cardozo, Ch. J. Lehman, J. Kellogg, J.

text:
    The People of the State of New York, Appellant, v. Francis X. Mancuso, Salvatore Soraci, Leonard Rose, Isadore Siegeltuch and Francis S. Paterno, Respondents, Impleaded with Others.

      (Argued October 21, 1930;
    decided February 10, 1931.)

      Thomas C. T. Crain, District Attorney (Robert C. Taylor and Hiram C. Todd of counsel), for appellant.
    Section 297 of the Penal Law, if unconstitutional, is void in part only. (City Bank Farmers Trust Co. v. N. Y. C. R. R. Co., 253 N. Y. 49; Schieffelin v. Goldsmith, 253 N. Y. 243.) Section 297 of the Penal Law is valid in part. (People v. West, 106 N. Y. 293; Lawton v. Steele, 119 N. Y. 226; People v. Beakes Dairy Co., 222 N. Y. 416.)

      Harris Berlack, Stanley H. Fuld and Frank Aranow for 'Francis X. Mancuso, respondent.
    Section 297 of the Penal Law is unconstitutional in that it violates the rule against arbitrary presumptions. (Manley v. Georgia, 279 U. S. 1; People v. Cannon, 139 N. Y. 32; Mobile R. R. Co. v. Turnipseed, 219 U. S. 35; Bailey v. Alabama, 219 U. S. 219; Luria v. United States, 231 U. S. 9; Yee Hem v. United States, 268 U. S. 178; Railroad Co. v. Henderson, 279 U. S. 639; State v. Moriarty, 50 Conn. 415;
      Commonwealth v. Williams, 6 Gray, 1; State v. Sheehan, 28 R. I. 160.) The provisions of the statute cannot be separated. (Cline v. Frink Dairy Co., 274 U. S. 445; International Textbook Co. v. Pigg, 217 U. S. 91; Weems v. United States, 217 U. S. 349; Spraigue v. Thompson, 118 U. S. 90; McFarland v. American Sugar Co., 241 U. S. 79; Chicago & Northwestern Ry. v. Railroad & Warehouse Comm., 280 Fed. Rep. 387; Fougera & Co. v. City of New York, 224 N. Y. 269; Village of Saratoga Springs v. Van Norder, 75 App. Div. 204; Matter of Van Horne, 74 N. J. Eq. 600; Warren v. Mayor, 2 Gray, 84.) The statute is so vague and indefinite as to deny due process of law. (Cline v. Frink Dairy Co., 274 U. S. 445; Connally v. General Constr. Co., 269 U. S. 385; United States v. Cohen Grocery Co., 255 U. S. 81; United States v. Pennsylvania R. R. Co., 242 U. S. 208; American Seeding Machine Co. v. Kentucky, 236 U. S. 660; Collins v. Kentucky, 234 U. S. 634; International Harvester Co. v. Kentucky, 234 U. S. 216; Campbell v. City of New York, 244 N. Y. 317; People v. Briggs, 193 N. Y. 457.) The element of participation is lacking. (People v. Swersky, 216 N. Y. 471; Wakeman v. Dalley, 51 N. Y. 27; Mason v. Moore, 73 Ohio St. 275; State v. Orrick, 106 Mo. 111.)

      Theodore Berger and Isadore Glauberman for Salvatore Soraci et al., respondents.
    Section 297 of the Penal Law creates a presumption. (Manley v. Georgia, 279 U. S. 1.) The presumption created by section 297 of the Penal Law is so arbitrary and unreasonable as to constitute a denial of due process of law. (Manley v. Georgia, 279 U. S. 1; Bailey v. Alabama, 219 U. S. 219; McFarland v. American Sugar Refining Co., 241 U. S. 79; People v. Cannon, 139 N. Y. 32; Denike v. New York Co., 80 N. Y. 599; Ferry v. Central New York Bank, 15 How. Pr. 445.) Subdivision 1 of section 297 and its concluding paragraph are so vague arid indefinite as to constitute a denial of due process of law in their entirety. (United States v. Blane, 139 U. S. 306; Collins v. Kentucky, 234 U. S. 634; United States v. Pennsylvania R. R. Co., 242 U. S. 208; United States v. Cohen Grocery Co., 255 U. S. 81; International Harvester Co. v. Kentucky, 234 U. S. 216; American Seeding Co. v. Kentucky, 236 U. S. 660; Connally v. General Constr. Co., 269 U. S. 385; Cline v. Frink Dairy Co., 274 U. S. 445; Miller v. Oregon, 273 U. S. 657.)

      Bobert S. Johnstone and Stanley L. Bichter for Isadore Seigeltuch, respondent.
    Section 297 of the Penal Law violates the due process provision of the State Constitution and of the 14th amendment to the Federal Constitution. (Manley v. Georgia, 279 U. S. 1; McFarland v. American Sugar Co., 241 U. S. 79; International Harvester Co. v. Kentucky, 234 U. S. 216; Collins v. Kentucky, 234 U. S. 634; United States v. Cohen Grocery Co., 255 U. S. 81; Connally v. General Constr. Co., 269 U. S. 385; Yu Cong Eng v. Trinidad, 271 U. S. 500; Cline v. Frink Dairy Co., 274 U. S. 445; People v. Briggs, 193 N. Y. 457; People v. Stoll, 242 N. Y. 453; Campbell v. City of New York, 244 N. Y. 317.) The first subdivision and the last paragraph of section 297 of the Penal Law are not sever-able. Even if they were severable and the first subdivision stood alone, it would not meet the required tests for the definition of crimes. (People ex rel. Alpha P. C. Co. v. Knapp, 230 N. Y. 48; People v. Beakes Dairy Co., 222 N. Y. 416; Berea College v. Kentucky, 211 U. S. 45; Village of Saratoga v. Van Norder, 75 App. Div. 204; Cooley Const. Limitations [3d ed.], 195; Black Const. Law, 63; Schieffelin v. Goldsmith, 253 N. Y. 243; Cline v. Frink Dairy Co., 274 U. S. 445; People v. Briggs, 193 N. Y. 457; People v. Stoll, 242 N. Y. 453; United States v. Cohen Grocery Co., 255 U. S. 81; Connally v. General Constr. Co., 269 U. S. 385.) The indictment fails to show any participation in a fraud. (United States v. Cruikshank, 92 U. S. 542; Armour Packing Co. v. United States, 209 U. S. 56; Farrel v. State, 111 Ark. 180; People v. West,
      106 N. Y. 293; People v. Werb ow, 241 N. Y. 55; People v. Shakun, 251 N. Y. 107; People ex rel. Childs v. Knott, 187 App. Div. 604; 228 N. Y. 608; Reno v. Bull, 226 N. Y. 546; Hammerschmidt v. United States, 265 U. S. 182; United States v. Moore, 173 Fed. Rep. 122; United States v. Cohn, 270 U. S. 339; Hart v. United States, 240 Fed. Rep. 911; Curley v. United States, 130 Fed. Rep. 1; Manley v. Georgia, 279 U. S. 1; Mason v. Moore, 73 Ohio St. 275; State v. Fox, 70 N. J. L. 353; State v. Orrick, 106 Mo. 111; People v. Swersky, 216 N. Y. 471.)
   Cardozo, Ch. J.

The defendants have been indicted for the crime of participating as directors in the fraudulent insolvency of a moneyed corporation in contravention of Penal Law, section 297, subdivision 1. There were demurrers to the indictment which the trial court allowed. The Appellate Division unanimously affirmed.

Penal Law, section 297, read as follows:

“ Every director of a moneyed corporation who:

“ 1. In case of the fraudulent insolvency of such corporation, shall have participated in such fraud; or,

2. Willfully does any act as such director which is expressly forbidden by law, or willfully omits to perform any duty imposed upon him as such director by law, “ Is guilty of a misdemeanor, if no other punishment is prescribed therefor by law.

“ The insolvency of a moneyed corporation is deemed fraudulent unless its affairs appear upon investigation to have been administered fairly, legally and with the same care and diligence that agents receiving a compensation for their services are bound, bylaw, to observe.” (cf. Penal Code, § 603; Laws of 1892, ch. 692; Penal Code, § 604; Laws of 1881, ch. 676.)

The last paragraph of this section is a re-enactment of a like provision in the Revised Statutes of 1829 (Part I, ch. XVIII, tit. II, art. 1, § 14) which added, however, another paragraph as follows: “ And it shall be incumbent on the directors and stockholders of every such insolvent corporation to repel, by proof, the presumption of fraud.” This paragraph, repealed in 1830 (Laws of 1830, ch. 71), disappeared from the statute books of New York, and has not been re-enacted.

It disappeared from the statute books of New York, but was copied elsewhere. In particular, it reappeared in Georgia. By the Banking Act of that State, “ every insolvency of a bank shall be deemed fraudulent, and the president and directors shall be severally punished by imprisonment and labor in the penitentiary for not less than one (1) year nor longer than ten (10) years; provided that the defendant * * * may repel the presumption of fraud by showing that the affairs of the bank have been fairly and legally administered, and generally, with the same care and diligence that agents receiving a commission for their services are required and bound by law to observe; and upon such showing the jury shall acquit the prisoner ” (Georgia Banking Act of 1919, art. XX, § 28). The Supreme Court of the United States had before it, in Manley v. Georgia (279 U. S. 1), the case of a director convicted of fraudulent conspiracy under the provisions of that act. The court held that the presumption of fraud from the mere fact of insolvency was unreasonable and arbitrary, and that the defendant could not lawfully be charged with a duty to repel it.

Upon the authority of that decision, these demurrers were allowed.

The insolvency of a moneyed corporation is deemed fraudulent unless its affairs appear upon investigation to have been administered fairly, legally and with the same care and diligence that agents receiving a compensation for their services are bound, by law, to observe ” (Penal Law, § 297). This provision is more than a presumption, if indeed it is that at all. It is also a definition. It defines the standard of conduct to be attained by directors if they are to avoid the imputation of sharing in a fraudulent insolvency. To the extent that it establishes a presumption in favor of the People, it is arbitrary and void (Manley v. Georgia, supra). To the extent that it establishes a definition of a fraudulent insolvency, it is valid, unless the standard of conduct is too vague to give warning to directors of the rule to be obeyed.

The statute, as we read it, is not subject to that reproach. It appeals to common-law standards of diligence and duty, standards to which business men and fiduciaries have accommodated themselves for centuries. It gives warning to directors that they must manage the affairs of a moneyed corporation fairly and legally and with the same care and diligence that is owing from paid agents, and that if they fail to do this, and by reason of such omission insolvency supervenes, they will be guilty of a misdemeanor. “ Fairly,” we interpret as meaning “ in good faith.” If that branch of the definition is to be excluded as indefinite, there still is left enough to fix the meaning and the duty. The definition will not be suffered to fail as an entirety. “ Legally,” we interpret as referring to the statutes of the State, and particularly the statutes regulating the management of banks. Finally, supplementing the test of good faith and illegality, there is another test more definite, one that is capable of standing by itself if both others be rejected, the test of reasonable diligence. Here the duty is prescribed with clearness and precision. The test established by the statute, the diligence that is expected of agents in receipt of compensation for their services, is a legislative recognition of a standard of diligence long known to the common law. The diligent director is the one who exhibits in the performance of his trust the same degree of care and prudence that men prompted by self-interest generally exercise in their own affairs ” (Hun v. Cary, 82 N. Y. 65, 71; Bowerman v. Hamner, 250 U. S. 504; Briggs v. Spaulding, 141 U. S. 132, 171; Kavanaugh v. Commonwealth Trust Co., 223 N. Y. 103, 105). Accepting the office, he accepts its burdens and its penalties (cf. Banking Law; Cons. Laws, ch. 2, §§ 123, 124).

The act is not shorn of certainty of meaning by its reference to a standard of customary diligence. The power of the Legislature to make it a crime for banking officers to be so neglectful of their duties as to involve their banks in ruin is hardly to be doubted. The power existing, one is at a loss to imagine how the prohibited omissions could be more accurately stated, without a catalogue of particulars not susceptible of enumeration in advance of the event (cf. International Harvester Co. v. Kentucky, 234 U. S. 216, at 223). “ The law is full of instances where a man’s fate depends on his estimating rightly, that is, as the jury subsequently estimates it, some matter of degree ” (Nash v. United States, 229 U. S. 373, 377). “ The precise course of the line may be uncertain, but no one can come near it without knowing that he does so, if he thinks, and if he does so, it is familiar to the criminal law to make him take the risk ” ( United States v. Wurzbach, 280 U. S. 396, 399). Much will depend on the distinction whether the standard is an old one, long recognized in law and life (International Harvester Co. v. Kentucky, 234 U. S. 219, 223), or one novel and unfamiliar, not yet approaching certainty, at least in measurable degree, through habitude and example. On one side of the line is the standard of care or judgment exacted by the statute in supplying a working place or tools for servants (Labor Law; Cons. Laws, ch. 31, §§ 240, 436; Employers’ Liability Law; Cons. Laws, ch. 74, § 2; Penal Law, §§ 1275,1276; People ex rel. Price v. Sheffield Farms Co., 225 N. Y. 25) or in driving on a highway (Nash v. United States, supra, p. 377; People v. Angelo, 246 N. Y. 451), or in the avoidance of a monopoly or of undue restraints on competition (Nash v. United States, supra; see also for additional illustrations, Miller v. Strahl, 239 U. S. 426, 434; Avent v. United States, 266 U. S. 127, 130; Hygrade Provision Co. v. Sherman, 266 U. S. 497, 503; Omaechevarria v. Idaho, 246 U. S. 343, 348). In these and like instances “ a great body of precedents on the civil side coupled with familiar practice make it comparatively easy for common sense to keep to what is safe ” (International Harvester Co. v. Kentucky, supra). On the other side is a statute imposing a penalty on any person who makes “ any unjust or unreasonable rate or charge in handling or dealing in or with any necessaries ” (United States v. Cohen Grocery Co., 255 U. S. 81), where neither accepted norms of conduct nor common-law traditions of customary diligence give definiteness and significance to the acts to be avoided (Connally v. General Construction Co., 269 U. S. 385; Cline v. Frink Dairy Co., 274 U. S. 445, 459). Not even a civil liability can rest upon a prohibition so vague, and indeterminate (Standard C. & M. Corp. v. Waugh C. Corp., 231 N. Y. 51; Small Co. v. American Sugar Ref. Co., 267 U. S. 233, 239). There is little analogy between this incoherence and the standard of behavior appropriate to the prudent and diligent fiduciary, bestowing upon the affairs of others care similar to that bestowed upon his own, a standard sanctioned and defined by centuries of precept and example.

Manley v. Georgia (supra) is not a ruling to the contrary. The decision in that case was not rendered on demurrer. There had been a judgment of conviction after a trial at which the statutory presumption had been applied in all its rigor. What was said in the opinion must be read in the light of the question to be answered. Not even by way of dictum, however, was there an intimation of a belief that the statute was too vague in its definition of care and diligence. At most the intimation was that there was too much of uncertainty in the tests of good faith and illegality. No discrimination had been made in the conduct of the trial between one standard and another. In the statute now before us, the test of care and diligence would stand though those of good faith and illegality were rejected as indefinite. To what extent a severance of good from bad is permissible with a view to the preservation of a statute is a question of construction as to which the courts of the State, and not the Federal courts, must speak with ultimate authority (People ex rel. Alpha P. C. Co. v. Knapp, 230 N. Y. 48, 60; Meyer v. Wells, Fargo & Co., 223 U. S. 298, 302; Berea College v. Kentucky, 211 U. S. 45, 55; Loeb v. Columbia Township Trustees, 179 U. S. 472, 490; Huntington v. Worthen, 120 U. S. 97).

We have said that the definition of fraud implicit in the statute may be severed from any presumption whereby fraud must be repelled. Whether there was in truth a purpose to establish such a presumption is at least not free from doubt. Section 297 of the Penal Law is descended from section 604 of the Penal Code, enacted in 1881 (ch. 676), which in turn derives from the Revised Statutes. One finds it hard to understand why the Legislature in re-enacting the Revised Statutes left out the old provision creating a presumption in terms too clear for misconstruction, if the purpose still was that the presumption should survive. Also one finds it hard to understand why, if such was the purpose, a provision should have been added that the defendant must be proved to have participated in the fraud. Much may be said in support of the contention that what was re-enacted in the new statute was meant to be a definition and no more. Where two meanings are reasonable, the preference is given to the one that sustains a statute rather than to the one that overturns it. If, however, this principle be disregarded, and the statute interpreted as continuing the old presumption, the result will not be changed. The act will then be read as if its provisions were as follows: The insolvency of a moneyed corporation is fraudulent unless its affairs have been administered by its directors fairly, legally and with the same care and diligence that agents receiving a compensation for their services are bound, by law, to observe (cf. Banking Law, secs. 123, 124), and the burden of proof shall be on a director, when insolvency is proved, to show that it was not fraudulent, or that he did not participate in the fraud.”

Plainly the presumption under a statute so framed is susceptible of severance from the accompanying definition. We think it is equally severable under the statute as enacted. Something more is here than a mere speculation” (Meyer v. Wells, Fargo & Co., supra) whether the Legislature would have been willing to adopt the statute as remodeled. The failure to re-enact the original presumption in all its former length and breadth is in itself a token of the likely choice. It is persuasive evidence that whatever presumption may have been left surviving as the result of bungling phraseology was not thought of by the lawmakers as constituting the essence of the plan. We shall be laying a doctrinaire emphasis on the possible rather than the probable ” (People ex rel. Alpha P. C. Co. v. Knapp, supra, p. 62) if we make a contrary assumption the basis of our ruling. The whole tendency during recent years, at least in this court, has been to apply the principle of severance with increasing liberality. “ Severance,” we have said (People ex rel. Alpha P. C. Co. v. Knapp, supra, p. 60), does not depend upon the separation of the good from the bad by paragraphs or sentences in the text of the enactment (Loeb v. Columbia Township Trustees, supra). The principle of division is not a principle of form. It is a principle of function.” “ Our duty is to save unless in saving we pervert ” (Ibid, p. 63).

The argument is made, however, that the definition itself, though it be severable from the presumption, must be severed once again into elements legal and illegal, and that this secondary severance exceeds, the limits of our power. The suggested limitation to our thinking is without sufficient basis in reason or authority. For a secondary severance as for a primary one, the test remains the same. The question is in every case whether the Legislature, if partial invalidity had been foreseen, would have wished the statute to be enforced with the invalid part exscinded, or rejected altogether” (People ex rel. Alpha P. C. Co. v. Knapp, supra, p. 60).' The Legislature has said that insolvency shall be classified as fraudulent unless there shall be good faith and obedience to the law and reasonable diligence. The prosecution is not required to prove the absence of all these elements. If that were the requirement, a different conclusion would be necessary. The prosecution prevails (according to the letter of the statute) if it proves the absence of any one of them. This being the definition, the only consequence of eliminating the element of good faith or even the element of compliance with the law is not to increase the defendant’s burden but rather to reduce it. By the statute as enacted a threefold standard is prescribed. By the statute as divided the Legislature is deemed to say that if one or more of the standards be rejected as indefinite, the proof shall be confined to the one that satisfies the test of certainty. We are to figure the situation as it will exist at the conclusion of the trial. Let us assume that the People shall succeed in proving that the insolvency is the consequence of a failure on the part of the defendants to direct the affairs of the bank with reasonable diligence. Is it conceivable that the Legislature would have wished such a prosecution to fail because the jury must be told that if due diligence has been exercised, guilt may not be found for transgression of a vague command to run the business “ fairly? ” The question carries its own answer.

There is no occasion to consider whether certainty would be lacking if the Legislature had done something which it did not try to do, had prohibited participation in a “ fraudulent insolvency ” without definition of the term. Enough for present purposes that nothing of the kind was done.

We think the statute is not invalid. That objection failing, we think the negligent and illegal acts and omissions enumerated in the indictment are sufficiently-stated to have been factors leading to insolvency and ruin.

Proof there must be of a causal connection between the wrong and the collapse before negligence will charge with a penal liability.

In brief, the insolvency of a moneyed corporation resulting from the failure to administer its affairs with reasonable care and diligence is a fraudulent insolvency within the definition of the statute, and a director participates in the fraud when he participates in the negligence with ruin as the consequence (cf. Banking Law, §§ 123-130).

Other limitations may be found to be essential in connection with a trial. We are not required to go farther to dispose of the demurrers.

The order of the Appellate Division and that of the trial court should be reversed and the demurrers overruled.

Lehman, J.

(concurring in result). The defendants, indicted for the crime of participating as directors in the fraudulent insolvency of a moneyed corporation, attack the indictment on the ground that section 297 of the Penal Law, which makes the acts charged criminal, is invalid and unconstitutional. That section provides in part that

“ Every director of a moneyed corporation who:

“1. In case of the fraudulent insolvency of such corporation, shall have participated in such fraud * * *

“ Is guilty of a misdemeanor, if no other punishment is prescribed therefor by law.”

The Legislature has not left to the court the definition of what constitutes a fraudulent insolvency.” It has provided in the same section that The insolvency of a moneyed corporation is deemed fraudulent unless its affairs appear upon investigation to have been administered fairly, legally and with the same care and diligence that agents receiving a compensation for their services are bound, by law, to observe.”

We are told that this provision is not a definition but the creation of a presumption. A definition it certainly is, even though it may include a presumption. It gives a content to the words “ fraudulent insolvency ” which those words might not otherwise have. It marks the fine which divides innocent insolvency from fraudulent insolvency. True, its language is open to the contention that the Legislature intended also that the insolvency of a moneyed corporation should give rise, in the absence of evidence to the contrary, to the presumption that the insolvency is fraudulent. The Legislature cannot, it is said, create such a presumption. (Manley v. Georgia, 279 U. S. 1.)

We may assume that this provision does attempt, not merely to define “ fraudulent insolvency,” but to create a presumption of fraud from the insolvency itself. As Chief Judge Cabdozo has pointed out, it is a re-enactment of a like provision in the Revised Statutes of 1829. There it certainly was intended to include a presumption, for it was followed by another clause, and it shall be incumbent on the directors and stockholders of every such insolvent corporation to repel by proof the presumption of fraud.” Then definition and presumption were to be applied, not in the determination of penal liability but of civil liability and that, too, of a civil liability which might be incurred, at least by a stockholder, without fault on his part. “ If the monies remaining due to the creditors of a corporation whose insolvency shall be adjudged fraudulent after the distribution of its effects shall not be collected in whole or in part from the directors liable for their reimbursement, the deficiency shall be made good by the contribution of the stockholders of the company.” (Revised Statutes of 1829, Part I, ch. XVIII, tit. II, art. 1, § 14.) The provisions for civil liability of directors or stockholders in case of fraudulent insolvency were repealed in 1830 and with them the definition of fraudulent insolvency and the presumption, in the absence of evidence to the contrary, that an insolvency is fraudulent. The pr ovisions for civil liability have never been re-enacted, but the clause, now under consideration, reappeared in section 604 of the Penal Code of 1881, from which section 297 of the Penal Law is derived.

It reappeared, but, as has been pointed out, without the additional clause “ and it shall be incumbent on the directors and stockholders of every such insolvent corporation to repel by proof the presumption of fraud.” The reason for the omission seems to me plain. Under the provisions of the Revised Statutes civil liability of a stockholder followed upon adjudication of fraudulent insolvency and the Legislature intended that the burden of producing evidence to show that an insolvency was not fraudulent should rest upon the defendant. In the Penal Law of New York, if the presumption, though arbitrary, is applied in full rigor, it would establish only the fraudulent insolvency; ” the People must still prove that the defendant as such director has participated in such fraud.” Participation cannot be proven without designation and proof of the specific acts in which the defendant participated. Practically the force of the provision under consideration is confined to the definition of what circumstances render the insolvency fraudulent. Designation and proof of the specific acts of fraud in which the defendant participated leaves little, if any, scope for the application of a general presumption that the insolvency was fraudulent. At most the Legislature has retained vestiges of an invalid presumption. Severance of the invalid from the valid may certainly be made in such case.

The question remains whether the statute, including the definition, imposes a standard of conduct too vague to give warning to directors of the rule to be obeyed. Though I cannot agree in whole with the construction placed in the prevailing opinion upon the statute, my own construction leads in this particular case to the same result. The statute punishes a director who “ participates ” in fraud which has resulted in the insolvency of a moneyed corporation. It defines what is meant by a “ fraudulent insolvency,” by specifying the conditions which will give to an insolvency a fraudulent quality. That definition determines the meaning of the word fraud,” as used in the statute. It does not in my opinion determine what shall constitute participation by a director. It is said that, perhaps, the provisions of the statute might be construed as if they read: “ The insolvency of a moneyed corporation is fraudulent when it results from the failure of a director to administer its affairs fairly, legally and with the same care that.agents receiving a compensation for their services are bound by law to observe, and the burden of proof shall be on the director, when insolvency is proved, to show that it was not fraudulent or that he did not participate in the fraud.” I cannot find in the language or in the history of the statutory provision any basis for that construction. Perhaps, if the Legislature had seen fit to enact a statute which bears such a construction we might give it partial effect by severance of the invalid from the valid, as pointed out in the prevailing opinion. That I do not now consider. If the statute is given, as I think it should be, a more literal construction, claims of invalidity lose much of their force.

I have said that, while the court might, perhaps, find implicit in the definition of “ fraudulent insolvency,” a presumption, arising from proof of insolvency, that the insolvency was fraudulent, I cannot find that a further presumption is implied or expressed that a director, who might be charged with such offense, has “ participated ” in that fraud. So now I say that I do not find in the language of the statute any intention that the definition of “ fraudulent insolvency ” was intended to define the acts or omissions of a director which might constitute participation in such fraud or to provide that a failure, while acting as a director, to use the “ care and diligence that agents receiving a compensation for their services are bound, by law, to observe,” shall as matter of law constitute participation by a director in such fraud.

At the outset I wish to point out again that in the Revised Statutes of 1829 the definition of fraudulent insolvency might form the basis for the imposition of a civil liability upon stockholders regardless of their fault. There, certainly, the liability was not confined to insolvency resulting from fraud of the directors. Such a construction I think would have been a perversion of the language of the statute. Corporate affairs are conducted by corporate agents. Where the agents of a moneyed corporation fail to conduct them honestly and legally and generally with the care and diligence that agents receiving compensation for their services are bound, by law, to observe,” the Legislature decreed that creditors may if necessary be reimbursed by contribution exacted from the stockholders. Quite evidently the Legislature intended such contribution might be exacted from stockholders if the agents were faithless even though the directors may have been without fault.

In re-enacting this provision as part of a penal statute applicable to directors alone, it seems to me that the Legislature can hardly have intended to change the meaning of its definition of “ fraudulent insolvency ” without changing its formulation. Fraudulent insolvency,” with participation of a director, received new consequences, but the meaning of fraudulent insolvency ” remained unchanged. The question, however, still remains whether the Legislature intended that the definition of what constitutes fraud in the insolvency of a moneyed corporation shall also define the standard of conduct of a director who would avoid the charge of participation in the fraud.

The statute does not say so. Where do we find in the statute ground for holding that it is implied? Can we, indeed, apply to the conduct of a director the statutory standard of the “ care and diligence that agents receiving a compensation for their services are required, by law, to observe? ” It is said that this imposes upon a director the standard of reasonable care ”■— the same standard which a director must observe to escape civil liability — in other words, that imprisonment and disgrace as well as civil liability may be visited upon a director who fails to exhibit in the performance of his trust “ the same degree of care and prudence that men prompted by self-interest generally exercise in their own affairs.” They are to be visited with fines and penalties if they fail to comply with their undertaking not only that they would discharge their duties with proper care, but that they would exercise the ordinary skill and judgment requisite for the discharge of their delicate trust.” (Hun v. Cary, 82 N. Y. 65, 71, 74.)

Perhaps the Legislature may impose such a standard of conduct upon a director. Perhaps the Legislature may give warning to a director that such a rule must be obeyed. I cannot find that the Legislature has done so. It is said that any act which comes within the statutory definition of fraud must constitute participation in the fraud. That is of course true, but it does not at all follow that the definition of fraud is coextensive with what may constitute participation ” in the fraud. Doubtless, where the director acts as the agent of a bank he may be found guilty of participation in the fraudulent insolvency ” of the bank resulting from his failure as agent to conduct the affairs of the bank with the same care and diligence which might reasonably be expected of a paid agent. There we have a well-defined, well-understood standard of conduct of an agent — not too vague to be applied in determining penal responsibility. The board of directors of a corporation do not stand in the same relation to the corporate body which a private agent holds toward his principal.” (Hoyt v. Thompson’s Executors, 19 N. Y. 207, 216.) A fortiori an individual director is not an agent. He is a member of a corporation directing the conduct, through others, of the corporate affairs. If the Legislature intended to give warning to a director that any negligence which would give rise to civil liability would also create penal responsibility, it failed to say so in clear terms. The test of the care and diligence that agents receiving a compensation for their services are bound, by law, to observe,” is hardly a test which gives warning to a director, not acting as an agent, that at peril of his liberty he must as director bestow upon the affairs of his corporation the care and prudence which men ordinarily exercise in their own affairs. Though I find the language of the' statute sufficiently definite if the definition of fraudulent insolvency applies to the conduct of the affairs of a moneyed corporation through its agents, I should perhaps hesitate to so hold if the definition is capable of such extension as to include the standard of conduct to be applied to directors in determining what constitutes participation in fraud.

In my opinion the Legislature has not attempted to define what acts by a director shall constitute participation in a fraud and it need not do so. The fraud is sufficiently defined. The agent who transacts the business of the moneyed corporation must exercise the care and diligence required of an agent for compensation. If he fails and insolvency follows, the insolvency is fraudulent. If a director participates in that fraud he is criminally responsible, not otherwise. The term participates is analogous to “ aid or “ abet.” (State v. Fox, 70 N. J. Law, 353.) So it has been construed in fixing penal or civil responsibility of corporate directors. (State v. Ross, 55 Ore. 450.) “ One who assists another, in any manner, in carrying out a fraudulent purpose is a ‘ particeps criminis.’ It is utterly immaterial what means he resorts to.” (Alberger v. White, 117 Mo. 347.)

So construed the statute does not impose criminal responsibility upon a director merely because he has failed in care and prudence. There must be more before there is participation ” in fraud. There must be an act or omission which logically leads to the inference that a director has had a share in the wrongful acts of corporate agents which rendered its insolvency fraudulent. True, negligence itself may at times sustain an inference of fraud. (Ultramares Corp. v. Touche, 255 N. Y. 170.) Then there may, perhaps, be finding of participation. At least there must be evidence from which acquiescence if not active aid may be inferred.

Even under this construction, the indictment here is sufficient. Therefore, I concur in the reversal of the judgment. Perhaps the Legislature should speak in less uncertain terms in warning directors of banks that they must be vigilant in the performance of their duties. In the absence of warning that misplaced reliance by directors in the officers of the bank may result in placing criminal responsibility upon directors, I hesitate to join in any decision which may place the brand of a criminal upon men of good intentions.

Kellogg, J.

(dissenting). Omitting a clause, concededly unconstitutional in part, the provisions of section 297 of the Penal Law, pertinent to this inquiry, are as follows: “ Every director of a moneyed corporation who: 1. In case of the fraudulent insolvency of such corporation, shall have participated in such fraud, * * * is guilty of a misdemeanor, if no other punishment is prescribed therefor by law.” Are the words fraudulent ” and fraud,” in the connection in which they are used, sufficient to define the acts sought to be made criminal?

The law has been thus stated: And a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application, violates the first essential of due process of law.” (Connolly v. General Construction Co., 269 U. S. 385, 391.) Penal statutes are too indefinite to satisfy due process when they forbid contractors to pay workmen less than “ the current rate of per diem wages in the locality where the work is performed ” (Connolly v. General Construction Co., supra, p. 393); prohibit combinations in restraint of trade except when necessary in order to enable participants to obtain a reasonable profit from products dealt in ” (Cline v. Frink Dairy Co., 274 U. S. 445); or forbid any unjust or unreasonable rate or charge in handling or dealing in or with any necessaries ” (United States v. Cohen Grocery Co., 255 U. S. 81, 86). They have been held insufficient where they have sought to punish as criminal “ all suspicious persons ” (Stoutenburgh v. Frazier, 16 App. Cas. [D. C.] 229); all public officers committing “ any misdemeanor in the execution of * * * their respective offices ” (State v. Gaster, 45 La. Ann. 636); all dentists guilty of unprofessional or dishonorable conduct ” (Czarra v. Board of Medical Supervisors, 25 App. Cas. [D. C.] 443); all persons who commit any act injurious to the public health, or public morals ” (Matter of Jackson, 45 Ark. 158); all persons guilty of mob violence ” (Augustine v. State, 41 Tex. Crim. Rep. 59). Statutes are sufficiently certain, although the definitions given involve elements so differing in degree that estimates thereof might vary, where they have employed (1) “ words or phrases having a technical or other special meaning ” or (2) words having a well settled common law meaning.” (Connolly v. General Construction Co., supra, p. 391; Cline v. Frink Dairy Co., supra.)

Certainly the word “ fraud ” or fraudulent ” has not “ a technical or other special meaning.” Conduct may be fraudulent or otherwise accordingly as we apply the standards of law or morality, of civil or criminal law, of the common law or of equity. Thus, fraud is said to be any cunning, deception or artifice used to circumvent, cheat or defraud another ” (Story, Eq. Juris. [14th ed.] § 267); all surprise, trick, cunning, dissembling, and other unfair way that is used to cheat any one ” (Willard, Eq. Juris, p. 147); “a device by means of which one party has taken an unconscientious advantage of the other.” (Jeremy, Eq. Juris, vol. 3, part 2, p. 358.) It has been said that It is impossible to separate deceit or artifice from fraud; it is of the very essence of the fraud.” (People v. Taylor, 4 Park. Crim. Rep. 158, 161.) On the other hand, it has been remarked: Fraud and dishonesty are synonymous terms;” an unjust man is a fraudulent one ” (Matter of Clark, 20 N. J. L. 648); bad faith and fraud are synonymous ” terms (Stark v. Starr, 22 Fed. Cases, p. 1084); “ Fraud is not a fact,” but a legal epithet applied to * * * facts” (Tibbits v. Miller, 9 Okla. 677); Whatever is dishonest isfraudulen in foro conscientice and is so treated in a court of equity ” (Matter of Clark, supra, p. 650). Of an indictment charging fraud against a man in that he obtained possession of lottery tickets by means of a false statement, Grose, J., in Rex v. Lara (6 Durnford & East Rep. 565) said that the defendant had been guilty of nothing more “ than a bare naked lie.” Concerning our indictment, found under a statute nakedly asserting that fraud ” is a crime, we might well say, as did the court in Regina v. Jones (1 Salk. 379): “ We are not to indict one man for making a fool of another.”

Neither the word fraud ” nor the word “ fraudulent,” as employed in the statute, has a well settled common-law meaning.” “ A fraud indictable at common law, must be such as would affect the public, and such as common prudence would not be sufficient to guard against; as the using of false weights and measures, or false tokens, or where there has been a conspiracy to cheat.” {People v. Miller, 34 Johns. 373.) In Rex v. Wheatley (2 Burrow, 1125) Lord Mansfield said: “The offense that is indictable must be such a one as affects the public. As if a man uses false weights and measures, and sells by them to all or to many of his customers, or uses them in the general course of his dealing: so, if a man defrauds another under false tokens; ” and in Rex v. Lara {supra) Lord Kenton said: “ What the defendant did was immoral and highly reprehensible: but as he used no false token to accomplish his deceit, the judgment must be arrested.” In People v. Taylor (supra) an indictment charged the violation of a statute which made it a crime for any city officer, among other things, “ to commit a fraud upon the city.” The court dismissed the indictment, for the reason that the statute did not sufficiently describe the crime. “ Fraud,” under the statute now considered, is not made dependent upon the use of false weights, measures or tokens. Therefore, there can be no pretense that the Legislature intended to use the word in the common-law sense. It thus appears that the-statute is not saved from the vagueness which condemns - it through the employment of words having 11 a technical or other special meaning ” or “ a well settled common-law meaning.”

The inquiry remains, whether a clause of the statute, which we have omitted, owing to its partial unconstitu- - tionality, may be employed to make sufficiently definite a statute which would otherwise offend due process. The clause is this: “ The insolvency of a moneyed corporation is deemed fraudulent unless its affairs appear upon investigation to have been administered fairly, legally and with the same care and diligence that agents receiving a compensation for their services are bound, by law, to observe.” It must be conceded that this clause, to the extent that it throws upon a person charged with fraud ” the burden of proving innocence, is unconstitutional. (Manley v. Georgia, 279 U. S. 1.) It is contended, however, that the clause was designed to serve a double purpose, the unconstitutional purpose of erecting a presumption of guilt, and the constitutional purpose of supplying a definition of the word “ fraud,” which the statute employs; that the unconstitutional part is severable from the constitutional; that the former may be rejected, and the latter retained. We believe it to be conceded that the word fairly ” is as indefinite as the words fraud ” and fraudulent.” We take it that the word legally ” is subject to the same criticism. Omitting these words, therefore, the definition sought to be set up would read in this wise: The insolvency of a moneyed corporation is fraudulent where it appears upon investigation that its affairs have been administered without that care and diligence that agents receiving a compensation for their services are bound, by law, to observe.” Assuming for the moment that such a definition might thus .be erected, it would seem that confusion worse confounded ” would result. What do the words where it appears upon investigation signify? Investigation by a trial jury? Trial juries do not investigate; they try issues already framed. If the crime is present only when it appears ” to a jury that the affairs of a bank have been carelessly managed, then that becomes criminal, in the course of a trial, which before was not criminal; in other words, the .issue decided by the jury is an issue created simultaneously by their own decision. Investigation by the Superintendent of Banks? If so, that investigation would conclude the question of guilt or innocence. For, if “ it appears upon investigation ” to the Superintendent that a bank has been carelessly managed, under the proposed definition it would be incontestable that a fraud ” had been committed. Putting that question aside, however, we think that the clause, admittedly unconstitutiona in part, may not be saved as a constitutional provision in so far as it sets up a definition of “ fraudulent insolvency.”

There are many instances where unconstitutional provisions have been exscinded from a statute by interpretation to give it force as an otherwise valid enactment. (Supervisors v. Stanley, 105 U. S. 305; Purdy v. Erie R. R. Co., 162 N. Y. 42; Ratterman v. Western Union Telegraph Co., 127 U. S. 411; Berea College v. Kentucky, 211 U. S. 45; Huntington v. Worthen, 120 U. S. 97; Dollar Co. v. Canadian C. & F. Co., 220 N. Y. 270; People ex rel. Alpha P. C. Co. v. Knapp, 230 N. Y. 48; Commonwealth v. Kimball, 24 Pick. [Mass.] 359; Cooley, Constitutional Limitations [8th ed.], p. 361.) It has been said that the elimination of an unconstitutional provision does not hang upon its incorporation in a separate sentence or paragraph, the whole of which may be excised without injury to the part retained. (Dollar Co. v. Canadian C. & F. Co., supra; People ex rel. Alpha P. C. Co. v. Knapp, supra; Cooley, Constitutional Limitations [8th ed.], p. 361.) It is not the defect of form, but of power, that invalidates any of them; it is, therefore, the subject-matter, and not the arrangement of the language in which it is embodied, that is to be regarded in deciding whether any provision is constitutional or not.” (Per Shaw, Ch. J., in Commonwealth v. Kimball, supra.) Nevertheless the two parts, valid and invalid, must be capable of separation ” (Supervisors v. Stanley, supra, p. 312); the valid part will be retained only provided the allowed and prohibited parts are sever-able ” (Packet Co. v. Keokuk, 95 U. S. 80, 89); it will be retained only if the unconstitutional part is clearly “ separable ” (Berea College v. Kentucky, supra; Huntington v. Worthen, supra.) In all the cases cited, and in many more, where a constitutional provision has been separated ” and saved, although contained in the same clause with an unconstitutional provision, the statutes considered have been of wide application, comprehending as the subjects of a tax, a prohibition, or a regulation, non-taxable properties or matter incapable of prohibition, or regulation by the enacting State, as well as properties or matters properly the subject of its enacting powers. The provisions allowed to remain have by their terms covered permissible subjects; subjects forbidden, by reason of the Constitution, have merely been released from statutory coverage. In none of them have new words of coverage, not employed by the Legislature, been interpolated, to make a forceful statute; in none have words employed been rearranged to make a valid tax or a sufficient prohibition or regulation. In United States v. Reese (92 U. S. 214, 221) the court said: “ The proposed effect is not to be attained by striking out or disregarding words that are in the section, but by inserting those that are not now there;” and The question, then, to be determined, is, whether we can introduce words of limitation into a penal statute so as to make it specific, when, as expressed, it is general only;” and To limit this statute in the manner now asked for would be to make a new law, not to enforce an old one.” In Meyer v. Wells, Fargo & Co. (223 U. S. 298, 300, 302) it was said by Holmes, J.: It would be possible only by some extraordinary turn of ingenuity to sustain this after condemning that ” and “ Neither the court below nor this court can reshape the statute simply because it embraces elements that it might have reached if it had been drawn with a different measure and intent.”

In our case we have a statute which insufficiently provides that in case of a “ fraudulent insolvency ” of a moneyed corporation every director participating in the “ fraud ” shall be guilty of a misdemeanor. It then provides that every insolvency is deemed fraudulent ” unless its affairs appear “ to have been administered fairly, legally and with the same care and diligence that agents receiving a compensation for their services are bound, by law, to observe.” A complete inversion of this unconstitutional provision, which casts the burden of establishing innocence upon an accused, is proposed. The exception from a prohibition is to be employed to determine the thing prohibited. To do this, the statute is to be rewritten, words expressing the reverse of those employed are to be interpolated, new words are to be substituted, and a new enactment to be made. To conclude that we thus have a mere severance, a separation or a permitted deletion is a turn of ingenuity ” which is certainly extraordinary.” That the turn may not be taken, the case of Manley v. Georgia (supra) seems clearly to lay down. In that case the court held that words, setting up a presumption of guilt, almost identical with those employed in our statute, constituted an unconstitutional enactment. The court did not feel justified in using the provision to extract a definition of “ fraudulent insolvency ” otherwise insufficiently defined. On the contrary, it said: “ The statute does not specify the elements of the offense.” (p. 6.)

We conclude that the provisions relied upon insufficiently state a crime; that they offend against due process; that the indictment thereunder must, therefore, fail.

The order should be affirmed.

Pound, Crane and Hubbs, JJ., concur with Cardozo, Ch. J.; Lehman, J., concurs in result in separate opinion; Kellogg, J., dissents in opinion in which O’Brien, J., concurs.

Orders reversed, etc.

       Of. section 659 of the Field Draft Penal Code (1865), which recommends the adoption of section 14 of the Revised Statutes omitting the presumption.


author: Lehman, J.

text:
    Steve Shushereba, Respondent, v. Betty W. Ames, Appellant.
    (Submitted January 7, 1931;
    decided February 10, 1931.)

      Joseph R. Webster for appellant.
    Jurisdiction was not acquired of defendant, because plaintiff did not file defendant’s return receipt. (Korn v. Lipman, 201 N. Y. 404; Cohnfeld v. Bliss, 174 App. Div 434; 220 N. Y. 681; O’Connor v. Gallagher, 104 App. Div. 492; Mecca v. Young, 133 Misc. Rep. 540; Pawloski v. Hess, 274 U. S. 352; O’Tier v. Sell, 226 App. Div. 434; 252 N. Y. 400; Gesell v. Wells, 240 N. Y. Supp. 628.) Section 52 of the Vehicle and Traffic Law is unconstitutional, if the filing of an agent’s return receipt sufficiently complied with its requirements. (Hess v. Pawloski, 274 U. S. 352; O’Connor v. Gallagher, 104 App. Div. 492; Mecca v. Young, 133 Misc. Rep. 540; Cohnfeld v. Bliss, 220 N. Y. 681.)

      Wilbur F. Knapp and Burton W. Sly for respondent.
    The court obtained jurisdiction of the defendant. (Gesell v. Wells, 229 App. Div. 11; O’Tier v. Sell, 226 App. Div. 434; 252 N. Y. 400.) Section 52 of the Vehicle and Traffic Law is constitutional. (O’Tier v. Sell, 226 App. Div. 434; 252 N. Y. 400; Hess v. Pawloski, 274 U. S. 352; Gesell v. Wells, 229 App. Div. 11.)
   Lehman, J.

The defendant, appearing specially, has moved to set aside the service of the summons and complaint in an action to recover damages for injuries suffered through a collision with an automobile which, it is alleged, the defendant negligently operated upon a public highway in this State. The defendant is a resident of California. The summons was not served upon her personally within the State of New York. In accordance with the provisions of section 52 of the Vehicle and Traffic Law (Cons. Laws, ch. 71), it was served here upon the Secretary of State as the attorney of the defendant to receive such service. True, the defendant did not expressly appoint the Secretary of State her attorney, but, under the statute, operation of a motor vehicle within this State by a nonresident “ shall be deemed a signification of his agreement that any such summons * * * which is so served shall be of the same legal force and validity as if served on him personally within the State.”

In order to insure that a defendant so served shall receive actual notice of the action, the statute provides that such service shall be sufficient only “ provided that notice of such service and a copy of the summons are forthwith sent by registered mail by the plaintiff to the defendant, and the defendant’s return receipt, the plaintiff’s affidavit of compliance herewith, and a copy of the summons and complaint are filed with the clerk of the court in which the action is pending.” Where the statute has been complied with and the defendant has received actual notice, a judgment rendered is in accordance with due process of law. (Hess v. Pawloski, 274 U. S. 352; Gesell v. Wells, 229 App. Div. 11; affd., 254 N. Y. 604.) Here the plaintiff has filed an affidavit intended to show compliance with the statute. It alleges that a copy of the summons was forthwith forwarded to the defendant by registered mail, and that “ hereto is attached the return receipt therefor from the defendant.” The return receipt is upon the usual post-office form. It bears a space for the “ signature or name of addressee.” In that space appears the defendant’s name. Below is a space for the signature of Addressee’s Agent.” In that space appears the name W. H. Ames. The defendant does not allege that she did not receive a copy of the summons by registered mail, and does not allege that she did not sign the receipt either personally or by her agent. Her motion to dismiss is based upon the sole ground that the return receipt is insufficient on its face.

We will assume, though the fact does not clearly appear, that the return receipt is not signed by the defendant personally but by W. H. Ames, claiming to be her agent. The question, then, to be decided is whether service under the statute is insufficient unless the return receipt is signed by the defendant personally. The purpose of the statute is accomplished when a defendant receives notice of the pendency of the action and opportunity to defend. It requires that notice should be sent by registered mail, and that the defendant’s return receipt should be filed in order that the court, before it attempts to exercise jurisdiction, shall have assurance that such jurisdiction has in fact been acquired. After the notice has been intrusted to the mail, the plaintiff has no control over the manner of its delivery. He cannot by affidavit show that it has actually been delivered to the defendant, or even at the defendant’s address. As a substitute for proof of service of notice by the affidavit of the party making such service, the statute provides for the kind of proof which is unquestioningly accepted in the ordinary affairs of life. The statute requires that the defendant’s return receipt ” shall be filed. It does not expressly or by fair implication require that the defendant’s return receipt ” shall be signed personally by the defendant. The requirement is fully complied with by filing: a return receipt ” given in accordance with the rules or customs of the Post-Office Department by' the defendant or by some other person authorized to receive registered mail addressed to the defendant. The Legislature cannot have intended that the defendant’s return receipt ” should have any narrower or different meaning. It provides for transmission of notice by registered mail — a method which, with almost absolute certainty, insures delivery to the place of address, and the return receipt of the addressee made out in accordance with the forms provided by the Post-Office Department affords, at least, reasonable certainty that the notice has been delivered to the proper person. The receipt is no less the defendant’s receipt if signed by the defendant’s agent than if signed by himself.

It may, it is true, be urged that the assertion of authority by the person signing as agent of the defendant is no proof that such authority exists. With equal force it might be urged that the filing of a return receipt which purports to be signed by the defendant does not prove the genuineness of the signature. In both cases there may be a possibility that the return receipt is in fact not the defendant’s return receipt ” and that the notice was not received by the defendant or his agent. That possibility is not so great that the court may not assume, at least, in the absence of contrary assertion by the defendant, that the notice was delivered by the Post-Office Department to the person to whom it was addressed or to one authorized to receive mail in his behalf. A different question would be here if the defendant had chosen, or, perhaps, been in a position to make such an assertion. If the defendant authorized an agent to receive and receipt for registered mail, then the return receipt signed by the agent is the defendant’s return receipt,” within the meaning of the statute. Even where the agent acted without prior authority, the receipt thereafter by the defendant of notice transmitted through the agent might constitute ratification of the ag ncy.

The allegation in the complaint that the defendant, a non-resident, operated a motor vehicle on a public highway in this State may in fact be untrue. If so, the foundation for service of the summons in accordance with section 52 of the Vehicle and Traffic Law must fall. The return receipt which purports to be signed by the defendant or her agent may in fact not be the defendant’s return receipt. Questions may at times arise whether the court, in acting upon allegations or assertions, has not been misled into an assumption of jurisdiction over the person of a defendant which it has never acquired. We are not now concerned with such a question. The statute plainly intends that the court shall act upon such allegations or assertions. Any other construction would not only fail to accord with the language of the statute but would make the statute impractical and ineffective. The statute, fairly construed, provides a method by which the court can act with almost complete assurance that the defendant has received notice of the action and opportunity to defend, and that jurisdiction of the person of the defendant has been acquired. If the court is deceived, then its judgment may be void. The statute is not unconstitutional when it authorizes the court to proceed upon assumptions which rest firmly upon general experience and accord with probability — at least until those assumptions are challenged. The motion to dismiss was, theiefore, properly denied.

The order should be affirmed, with costs. The questions certified should be answered as follows: Questions 1 and 2, Yes,” question 3, No.”

Cardozo, Ch. J., Pound, Crane, O’Brien and Hubbs, JJ., concur; Kellogg, J., notjdtting.

' Order affirmed, etc.