author: Ftjld, J.

text:
    In the Matter of the Accounting of John H. Krooss, as Executor of Elise Krooss, Deceased Executrix of Herman Krooss, Deceased, and John H. Krooss, as Administrator C. T. A. of Herman Krooss, Deceased, Respondent. H. Peter Maue, as Executor of Florence K. Maue, Deceased, Appellant.
    Argued April 4, 1951;
    decided May 24, 1951.

      James N. Vaughan, James A. Delehanty, William Indursky and Jacob Neuthaler for appellant.
    I. The order made by the Appellate Division is erroneous because it finds an intention in the will which is nonexistent in point of fact. The Appellate Division fell into error largely because it made a mistake of fact from which followed a misconception of the issue. (Staples v. Mead, 152 App. Div. 745, 159 App. Div. 922, 214 N. Y. 625; Moore v. Littel, 41 N. Y. 66; Matter of Watson, 262 N. Y. 284; De Korwin v. First Nat. Bank of Chicago, 179 F. 2d 347.) II. Here a daughter received a vested remainder subject to be divested if two conditions were satisfied. Since only one of said conditions was satisfied the remainder interest of the daughter never was divested. (Staples v. Mead, 214 N. Y. 625; Livingston v. Greene, 52 N. Y. 118; Byrnes v. Stilwell, 103 N. Y. 453; Matter of Tienken, 131 N. Y. 391; Matter of Tompkins, 154 N. Y. 634; Connelly v. O’Brien, 166 N. Y. 406; Stringer v. Young, 191 N. Y. 157; Marsh v. Consumers Park Brewing Co., 220 N. Y. 205; Matter of Banker, 248 N. Y. 596; Matter of Bolton, 282 N. Y. 728.)

      David Ecker and Michael J. O’Reilly for respondent.
    I. Implicit in the language of the dispository paragraph of the will is the condition of survivorship of the life tenant.' The testator thereby provided clear evidence of his intention to leave the remainders merely tentative subject to being defeated by death of the remaindermen prior to the life tenant. (Matter of Buechner, 226 N. Y. 440; Brown v. Gardner, 233 N. Y. 261; Lawrence v. Calam, 236 N. Y. 168; New York Life Ins. & Trust Co. v. Winthrop, 237 N. Y. 93; Vanderzee v. Slingerland, 103 N. Y. 47; Nellis v. Nellis, 99 N. Y. 505; Matter of Gates, 239 App. Div. 666; Matter of Elderd, 138 Misc. 645; Matter of Robinson, 187 Misc. 489; Cox v. Wisner, 43 App. Div. 591, 167 N. Y. 579.) II. The will imports futurity and creates a substitutional gift over. Thus, there could be no vesting. The failure to meet the condition of survivorship expressed in the will and provided by the substitutional gift over required the holding of intestacy. (Matter of Burdsall, 128 Misc. 582, 221 App. Div. 756; Bowman v. Bowman, [1899] A. C. 518; Matter of Mathews, 154 Misc. 779; Matter of Sperling, 133 Misc. 834.)
   Ftjld, J.

Herman Krooss died in 1932. He was survived by his wife Eliese and his two children, a son, John Krooss, and a married daughter, Florence Maue. By his will, he gave his residuary estate, real and personal, to his wife, to have and to hold the same for and during the term of her natural life,” with the power to use any part of it for her support and maintenance that she deemed necessary; no trust was created. The will further provided:

“ Upon the death of my beloved wife, Eliese Krooss, I then give, devise and bequeath all the rest, residue and remainder of my estate, as well real as personal, and wheresoever situate, to my beloved children, John H. Krooss and Florence Mane, nee Krooss, share and share alike, to and for their own use absolutely and forever.

In the event that either of my children aforesaid should die prior to the death of my beloved wife, Eliese Krooss, leaving descendants, then it is my wish and I so direct that such descendants shall take the share their parent would have taken if then living, share and share alike, to and for their own use absolutely and forever.”

Florence Maue died, without having had descendants, in 1947, three years before the life beneficiary Eliese. Some months after Eliese’s death, Florence’s husband, as executor of his wife’s estate, instituted the present proceeding in the Surrogate’s Court of Bronx County to compel John Krooss, as executor under Eliese’s will and as administrator c.t.a. of Herman Krooss’ estate, to render and settle his respective accounts. In order to determine whether the executors of Florence’s estate had status to prosecute the proceeding, the surrogate was required, initially, to construe Herman’s will. He decided that the interest given to Florence was vested at the testator’s death, subject to be divested only in the event of her predeceasing her mother leaving descendants, that it passed under her will, and that her husband, as executor, was entitled to bring the action. The Appellate Division modified that determination. Disagreeing with the surrogate’s interpretation, the Appellate Division construed the will as imposing upon each of the remaindermen a condition that he or she survive the life beneficiary; Florence having died without children before Eliese, that condition was not met, and, concluded the court, as to Florence’s share in the remainder, Krooss died intestate.

The law has long favored a construction of language in deed and will that accomplishes the vesting of estates; such a result is preferred because, among other things, it enables property to be freely transferred at the earliest possible date. (See, e.g., Matter of Watson, 262 N. Y. 284, 300; Dougherty v. Thompson, 167 N. Y. 472, 483; Connelly v. O’Brien, 166 N. Y. 406, 408; Hersee v. Simpson, 154 N. Y. 496, 502; McArthur v. Scott, 113 U. S. 340, 378.) Accordingly, the courts are intent upon restricting defeating events to the exact circumstances specified.

The will under consideration is simple in language and simple in plan. The testator gave his widow a life estate and a power to use the principal if it proved necessary for her maintenance and support. What remained after her death he gave “ absolutely and forever ” in equal shares to his two children, Florence and John. Had the will stopped at that point, there would be no question that the remainders were vested. And, since that is so, additional language will not be read as qualifying or cutting down the estate unless that language is as clear and decisive as that which created the vested remainder. (See, e.g., Goodwin v. Coddington, 154 N. Y. 283, 286; Byrnes v. Stilwell, 103 N. Y. 453, 460.) The further language used by the testator in this case demonstrates, not that he was rendering the vesting of the estates in his children conditional upon survival of the life beneficiary, but that he was willing to have those estates divested only upon the combined occurrences of two further events. He explicitly provided, if either of his children died before his wife, ‘‘ leaving descendants,” then “ such descendants shall take the share the parent would have taken if then living ”. If the words used mean what they say, then, divestiture of the remainder estates depended upon the happening of two plainly expressed and stipulated conditions: (1) the child, Florence or John, must die before the life beneficiary, and (2) the child so dying must leave descendants. Only if both of those conditions came to pass was the remainder — by apt and unequivocal language already vested in Florence and John — to be divested and bestowed instead upon the descendants of him or her who might have died.

When a will contains language that has acquired, through judicial decision, a definite and established significance, the testator is taken to have employed that language in that sense and with that meaning in mind. (See, e.g., Matter of Wittner, 301 N. Y. 461, 465; Manion v. Peoples Bank of Johnstown, 292 N. Y. 317, 321; Washbon v. Cope, 144 N. Y. 287, 297-298; Keteltas v. Keteltas, 72 N. Y. 312, 314-315; Livingston v. Greene, 52 N. Y. 118, 124; see, also, 2 Page on Wills, § 916, pp. 793-794; 1 Davids, New York Law of Wills, § 492, p. 806.) The thought was well expressed by this court in the Keteltas case (supra, 72 N. Y. 312, 314-315): “ The primary object in construing wills is to ascertain the intention of the testator, and when that has been ascertained, it is to be implicitly obeyed, however informal the language in which such intention has been conveyed. But the intention is not matter of speculation or arbitrary conjecture. It is sought for in the language used; and when language or a certain collocation of words has once received judicial construction, precedents are formed which are followed in later cases. It is a general rule of construction that when a testator uses technical words, he is presumed to employ them in their legal sense, and that words in general are to be taken in their ordinary and grammatical sense unless the context clearly indicates the contrary.”

Over the years, the courts have uniformly held that language such as that used by the testator here, or language substantially identical, creates a vested remainder in fee subject to be divested by the remainderman’s failing to survive the life beneficiary, if, but only if, such remainderman leaves issue or descendants surviving. (See, e.g., Staples v. Mead, 214 N. Y. 625, affg. 159 App. Div. 922, 152 App. Div. 745; Byrnes v. Stilwell, supra, 103 N. Y. 453; Livingston v. Greene, supra, 52 N. Y. 118; Smiley v. Bailey, 59 Barb. 80; Flanagan v. Staples, 28 App. Div. 319; Gray v. Garman, 2 Hare 268; Matter of Bright’s Trust, 21 Beav. 67; Remmers v. Remmers, 280 Ill. 93; see, also, Note, 109 A. L. R. 5.) Staples v. Mead (supra, 214 N. Y. 625, affg. 159 App. Div. 922,152 App. Div. 745) furnishes a helpful precedent. The testator gave the residue of his estate to executors in trust for the life of his wife, with directions to pay one third of the income to her, one third to her daughter Sarah and one third to grandchildren of testator, living at his death and to the estate of any grandchild who died leaving issue. The will further provided that, upon the death of the wife, the trust was to continue for the life of the daughter, with income payable one half to the daughter and the other half to the grandchildren and the issue of deceased grandchildren. The will then went on to provide that “ upon the death of my said daughter I then give, devise and bequeath my entire estate unto my grandchildren and to the issue of any grandchild who may have died leaving issue * * * share and share alike.” (Emphasis supplied.) A grandchild, John Mead, died during Sarah’s lifetime. Just as did Florence in the case before us, John left a will and no issue. Plaintiffs claimed that the grandchild John took a vested remainder, subject to be divested only upon his death leaving issue; accordingly, plaintiffs urged, upon John’s death without issue his estate remained vested and passed under his will. It was the defendants’ contention that the interest given to John ceased if he died before the termination of the life estate, and, since that did occur, the estate that would otherwise have gone to John went to the other grandchildren who survived the life tenant. The Appellate Division held' — and the Court of Appeals affirmed on appeal from both the final judgment (159 App. Div. 922) and the interlocutory judgment (152 App. Div. 745) —that the will bestowed a vested remainder upon the grandchild John and that such remainder was defeated only if he (1) died before his mother and (2) left issue. In the course of its opinion, the court wrote (152 App. Div., at pp. 748-749): It is true that the death of John * * * before his mother, leaving issue, was a contingency upon which his estate might have been divested, and vested in his issue; but this was not an event upon which the vesting in him depended. (Doscher v. Wyckoff, 132 App. Div. 139,142.) ‘ It was not a gift limited to take effect upon an uncertain event; it was a gift, which the uncertain event might chance to defeat.’ (Stringer v. Young, 191 N. Y. 157, 162.) The event in this case, the death of the donee leaving issue, did not happen, and his gift was not defeated, hut remained vested.” (Emphasis supplied.)

Leading commentators in the field, after reviewing the cases, have expressed themselves in similar fashion. (See 2 Powell on Real Property [1950], §§ 330-331, pp. 728-737; 2 Redfield on Law of Wills [1866], § 65, pp. 648-649; 3 Restatement, Property, § 254, Comment a, Illustration 1, particularly Example II, pp. 1284-1286.) Thus, Professor Bichard B. Powell of Columbia University Law School and Beporter on Property for the American Law Institute, in his recent work on the Law of Beal Property, considers the subject at some length and sums up the law in this way (op. cit., § 330, pp. 729-730): Supplanting limitations differ, in that some provide a taker who is to become the substitute whenever the prior taker fails to survive, while others provide a taker who' is to become the substitute only under some circumstances. In cases of the second type, the constructional preference for early indefeasibility causes the requirement of survival to be strictly construed, and to operate only under the exact circumstances stipulated. * * * Similarly, in a gift ‘ to my wife B for life, then to my children and the issue of those of my children who may be dead leaving children, ’ the interest of a child of the testator who dies without surviving issue is indefeasible.”

Turning to the will before us, we find that, at the expiration of the wife’s life estate, the testator “then” gave the remainder to his children “ absolutely and forever.” The use of the word “ then ” as an “ adverb of time ” must be, as it long has been, construed to relate solely “ to the time of enjoyment of the estate, and not to the time of its vesting in interest.” (Staples v. Mead, supra, 152 App. Div. 745, 749, affd. 214 N. Y. 625.) Hence, the sole combination of events which could divest the “ absolute ” gift to the daughter Florence was her death before her mother, “ leaving descendants ”. Only one of the specified conditions was fulfilled; although Florence did predecease her mother, she did not leave descendants. Consequently, her absolute gift remained vested and was not defeated. Not only the language employed, but the omission of any “ words of survivorship ” (Byrnes v. Stilwell, supra, 103 N. Y. 453, 459) to indicate an intent that Florence’s brother was to take if Florence died without children, illumines the testator’s design to give his daughter a vested remainder.

One of the cases principally relied upon for a contrary conclusion— Matter of Burdsall (128 Misc. 582, affd. 221 App. Div. 756) — while superficially similar, is actually .quite different. The will gave the remainder to two designated remaindermen, and went on to recite that, in the event that either died before the testator or before the life beneficiary, “ I give, devise and bequeath the share of such ’ ’ remainderman £ £ to her lineal descendants ” (p. 583). The surrogate, noting that the interest which the original remaindermen took £ did not become indefeasible and perfect ” during the life estate, held that “ the remaindermen had during their lives an interest in the estate, subject to be defeated by their death prior to the termination of the trust. They took on the condition of survivorship ” (p. 584). As the very language demonstrates, the gift in the Burdsall case was to the remaindermen or their descendants and was not conditioned upon “ leaving descendants ”. Such an alternative gift as that in Burdsall imports a requirement of survival as to both alternative takers (3 Restatement, Property, § 252, p. 1270). On the other hand, the limitation in the will before us contains no such alternative gift. There was no such specific and unique disposition of the remainder in the event of Florence’s death prior to that of her mother; it was to go to her descendants only if she left descendants surviving. In a word, not Florence’s failure under all circumstances to survive was specified as a condition defeating her estate, but only her death before her mother if she left descendants.

The order of the Appellate Division should be reversed and the decree of the Surrogate’s Court affirmed, with costs in this court and in the Appellate Division to all parties, appearing separately and filing separate briefs, payable out of the estate.

Loughran, Ch. J., Lewis, Conway, Desmond, Dye and Froessel, JJ., concur.

Ordered accordingly.

         In her will, Florence left her residuary estate in trust to her husband and to her brother John, as trustees, to pay the net income therefrom to the husband for life; on his death, the principal was to be distributed between Florence’s two nephews, the children of her brother John, if living, and to their issue per stirpes if either should die before the termination of the trust.


source: Caselaw Access Project

author: Lotjghran, Ch. J.

license: Public Domain

text:
    In the Matter of the Claim of Annella Kobinski, Respondent, against George Weston, Ltd., et al., Appellants, and Jamestown Mutual Insurance Company, Respondent. Workmen’s Compensation Board, Respondent.
    Argued February 27, 1951;
    decided May 24, 1951.

      Edward L. Robinson, William M. Fay and Solon J. Stone for appellants.
    Since claimant had no accident within the meaning of the Workmen’s Compensation Law after the time that appellant insurance company insured the employer, said insurer cannot be forced to contribute to the payment of compensation for claimant’s injury. Respondent insurance company, which insured appellant on July 5,1945, the date of the accident which caused claimant’s present condition, should pay the entire award. (Matter of Phillips v. Holmes Express Co., 190 App. Div. 336, 229 N. Y. 527; Matter of Masse v. Robinson Co., 301 N. Y. 34; Matter of Jeffreyes v. Sager Co., 198 App. Div. 446, 233 N. Y. 535; Matter of Chiara v. Villa Charlotte Bronte, 298 N. Y. 604; Matter of Carpenter v. Sibley, Lindsay & Curr Co., 277 App. Div. 801; Matter of Dyviniek v. Buffalo Courier Express Co., 296 N. Y. 361; Matter of Harman v. Republic Aviation Corp., 298 N. Y. 285; Matter of Champion v. Gurley, 299 N. Y. 406; Matter of Connelly v. Hunt Furniture Co., 240 N. Y. 83; Matter of Lerner v. Rump Bros., 241 N. Y. 153.)

      Frank Pedlow and Fred J. Murray for Jamestown Mutual Insurance Company, respondent.
    Ample evidence supported the determination of the Workmen’s Compensation Board that claimant sustained a series of causally related traumatic injuries, some of which occurred in 1947. (Matter of Altschuller
      v. Bressler, 289 N. Y. 463; Matter of Daus v. Gunderman & Sons, 283 N. Y. 459; Matter of Rosenberg v. Netherland Cab Co., 269 App. Div. 914; Matter of Kayser v. Erie Co. Highway Dept., 276 App. Div. 789; Matter of Green v. Geiger, 280 N. Y. 610; Matter of Newirth v. La Pidus, 273 App. Div. 835; Matter of Masse v. Robinson Co., 301 N. Y. 34.)
   Lotjghran, Ch. J.

On July 5, 1945, the claimant, while working for her employer, slipped and fell upon an oily floor of its factory. The impact fractured a segment of her sacrum and one of the discs of her spine. These injuries disabled her until August 20, 1945, when she returned to work. Workmen’s compensation for that disablement was paid to her by Jamestown Mutual Insurance Company, the then carrier of her employer.

On January 1, 1947, the employer placed its workmen’s compensation insurance with Standard Accident Insurance Company. On September 1st of that year, the claimant was again disabled when the spinal disc that had been cracked in 1945 became protruded. The protrusion was corrected by a surgical operation in 1948. For wholly valid reasons of her own she chose not to work thereafter. In respect of part of that second period of incapacity, the Workmen’s Compensation Board made a further award, 75% of which was charged against Jamestown Mutual Insurance Company and 25% against Standard Accident Insurance Company. Upon appeal to the Appellate Division by the employer and Standard Accident Insurance Company, that award was affirmed. Standard Accident Insurance Company and the employer have now brought the case to us by our leave.

The finding upon which the board based its decision is in these words: The frequent stooping, bending and lifting to which Annella Kobinski [the claimant] was subjected [after she returned to work in August, 1945] caused her to sustain a series of causally related traumatic injuries some of which occurred in 1947, at which time the Standard Accident Insurance Company was the insurance carrier, having gone on the risk on January 1, 1947. * * * The accidental injuries of July 5, 1945, and the series of traumatic injuries suffered by Annella Kobinski as aforesaid, resulting in accidental injuries and disability on September 1,1947, caused her to sustain a protrusion of the fourth lumbar intervertebral disc which necessitated operative procedure on April 7, 1948 to remove the said protrusion.” Whether that finding has sufficient support in the record is the question for decision.

The employer manufactured cookies and crackers. These were first deposited in boxes which were carried to the claimant on a conveyor. When on the hearing herein she was asked to describe her regular work ”, she said: “ I weighed the boxes — put them on the scale, checked the weight and piled them on a skiff.” This was the sum total of her daily task during the whole of the period of her employment. She was required frequently to stoop and bend as she lifted the boxes and this lifting caused her pain from time to time after the accident of July 5, 1945. But she did not say that she was subjected to any unusual strain either before that accident or thereafter (cf. Matter of Masse v. Robinson Co., 301 N. Y. 34; Matter of Carpenter v. Sibley, Lindsay & Curr Co., 302 N. Y. 304). In that state of the record, the board was without warrant for its finding that the claimant sustained any traumatic injury on or after January 1, 1947 — the date on which Standard Accident Insurance Company became the employer’s carrier.

The order of the Appellate Division and the award of the Workmen’s Compensation Board, insofar as appealed from, should be reversed, with one bill of costs to the appellants, and the claim remitted to the Workmen’s Compensation Board for further proceedings not inconsistent with this opinion.

Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ., concur.

Ordered accordingly.


author: Dye," J.

text:
    Edwin S. Morgan, Appellant, v. Indemnity Insurance Company of North America, Respondent.
    Argued February 27, 1951;
    decided May 24, 1951.

      Jacob Freed Adelman for appellant.
    I. The evidence presented a question of fact for the jury as to the cause of death and its verdict for plaintiff is conclusive and supported by the evidence. (Lewis v. Ocean Accident & Guar. Corp., 224 N. Y. 18; Marchi v. Ætna Life Ins. Co., 205 N. Y. 606; Gallagher v. Fidelity & Cas. Co. of N. Y., 163 App. Div. 556, 221 N. Y. 664; Burr v. Commercial Travelers Mut. Accident Assn., 295 N. Y. 294; Gittelson v. Mutual Life Ins. Co. of N. Y., 266 App. Div. 141; Wolfson v. Metropolitan Life Ins. Co., 289 N. Y. 70; MacNair v. Commercial Travelers Mut. Accident Assn., 275 N. Y. 630; McGrail v. Equitable Life Assur. Soc., 292 N. Y. 419; Matter of Connelly v. Hunt Furniture Co., 240 N. Y. 83; Silverstein v. Metropolitan Life Ins. Co., 254 N. Y. 81; Foley v. State of New York, 294 N. Y. 275; Mulvihill v. Commercial Cas. Ins. Co., 221 App. Div. 494, 248 N. Y. 524.) II. The policy in suit permits recovery where death results from an accident, or from accidental means “ independent of all other causes ”. (French v. Fidelity & Cas. Co., 135 Wis. 259; Isitt v. Railway Passengers’ Assur. Co., 22 Q. B. D. 504; Carroll v. Fidelity & Cas. Co., 137 F. 1012.)

      Dennis L. O’Connor, George A. Garvey and James I. McGuire for respondent.
    I. The law of the case was correctly determined by the courts below, namely, that if acute alcoholism either concurred in or contributed to decedent’s death as a proximate cause there can be no recovery under the policy. II. As decedent’s death was due to two causes, barbiturate poisoning and acute alcoholism, as a matter of law it was not within the terms of" the insurance policy as it did not result directly and independently of all other causes from bodily injuries sustained solely through accidental means. (Powley v. Equitable Life Assur. Soc., 284 N. Y. 664.) III. The trial court erroneously submitted the issues to the jury by permitting the jury to speculate as to what the possible effects of the poison might have been regardless of decedent’s state of acute alcoholism. IV. A death which occurs from an overdose of sleeping pills and from acute alcoholism, as a matter of law is not a death resulting directly and independently of all other causes from bodily injuries effected solely through accidental means. V. There is no evidence in the record or in fact to support appellant’s contention that decedent died solely, directly and exclusively by barbiturate poisoning exclusively of all other causes and therefore the Appellate Term erred in granting a new trial.
   Dye," J.

The plaintiff’s wife, Evelyn French Morgan, died under circumstances claimed to be covered by a standard accident insurance policy issued on her life by the defendant insurance company. A judgment entered on a jury verdict in favor of plaintiff as named beneficiary has been set aside and the complaint dismissed for alleged failure to establish compliance with the policy condition rendering the company liable against loss “ resulting directly and independently of all other causes from bodily injuries sustained ' * * * and" effected solely through accidental means ”.

The proof deemed insufficient, established without contradiction that on December 7, 1946, the insured, age thirty-four, with her husband and several mutual friends, spent the evening in a round of social activities at which alcoholic beverages were consumed. The insured and her husband returned on foot to théir apartment about 1:30 a.m. Before retiring for the night the insured took some sleeping pills “ because her foot hurt and she wanted to be sure to sleep ”. When her husband was unable to arouse her between 4:30 and 5:00 a.m., aid was summoned and she was pronounced dead by the ambulance physician. An autopsy performed at the city mortuary within a few hours by qualified physicians revealed a normal physique for a woman of her age, with general visceral congestion. Chemical analysis of the vital organs by a qualified toxicologist showed the presence of alcohol 0.15% indicating acute alcoholism, but whether enough by itself to have caused death was doubtful as there was medical testimony that a lethal quantity under 0.6% depends on individual tolerance in a given case. It also showed the presence of amytal (a barbiturate acid derivative) 4.5 mgs., an amount equal to a triple lethal dose and sufficient in itself, independent of the presence of other items, to cause death. The deputy chief medical examiner noted in his report that death was due to Barbiturate (Amytal) Poisoning, circumstances undetermined, contributory Acute Alcoholism.”

Because elements exist, either one of which alone could have been the cause “ of death ”, a sharp question is raised as to whether recovery under the policy may be defeated because the policy condition uses the phrase “ directly and independently * * * effected solely through accidental means We think not. Whether death results from accidental causes or accidental means no longer makes any distinguishing difference (Burr v. Commercial Travelers Mut. Accident Assn., 295 N. Y. 294). Ordinarily, death solely from overindulgence of alcoholic beverages is not considered accidental (Powley v. Equitable Life Assur. Soc., 257 App. Div. 324, affd. 284 N. Y. 664). On the other hand, death caused solely by barbiturate poisoning may be so considered (Mansbacher v. Prudential Ins. Co., 273 N. Y. 140 [veronal] ; Meyer v. New York Life Ins. Co., 249 App. Div. 243, appeal discontinued 276 N. Y. 557 [sodium ortal]). Whether under the circumstances of this case death resulted directly and independently from barbiturate (amytal) poisoning was a question for the jury, particularly where there is competent medical testimony that the amytal by itself was sufficient to cause death independent of other elements present.

The judgments should be reversed and a new trial granted, with costs to abide the event.

Loughran, Ch. J., Lewis, Conway, Desmond, Fuld and Fboessel, JJ., concur.

Judgments reversed, etc. [See 302 N. Y. 940.]


author: Desmond, J.

text:
    Junius S. Morgan et al., as Trustees, and Leonhard A. Keyes, et al., as Surviving Executors of Herbert L. Satterlee, Deceased Trustee under a Declaration of Trust made by J. Pierpont Morgan, Deceased, for the Benefit of Louisa P. Satterlee, Respondents, v. Leonhard A. Keyes, as Surviving Executor of Louisa P. Satterlee, Deceased, et al., Respondents, and Eleanor M. Satterlee, Appellant.
    Argued April 9, 1951;
    decided May 24, 1951.

      Sol A. Rosenblatt and Charles Roden for appellant.
    I. The determination below that Mrs. Satterlee impliedly intended by her will to appoint the 1901 fund in further trust has no basis in law or fact. (Matter of Wittner, 301 N. Y. 461; Matter of Battell, 286 N. Y. 97; Matter of Kennedy, 279 N. Y. 255; Matter of Loew’s Buffalo Theatres, Inc., 233 N. Y. 495; Matter of Thompson, 274 App. Div. 49; Matter of Piffard, 111 N. Y. 410; Matter of Barlow, 144 Misc. 210; Chase Nat. Bank of City of N. Y. v. Chicago Tit. & Trust Co., 155 Misc. 61, 246 App. Div. 201, 271 N. Y. 602; Overheiser v. Lackey, 207 N. Y. 229; Post v. Hover, 33 N. Y. 593; Bradhurst v. Field, 135 N. Y. 564.) II. Since Mrs. Satterlee expressly appointed the 1913 fund, as a matter of law, it may not be held that by the same language she impliedly appointed the 1901 fund to which it did not refer. (White v. Hicks, 33 N. Y. 383; Bradish v. Gibbs, 3 Johns. Ch. 523; Mutual Life Ins. Co. v. Shipman, 119 N. Y. 324; Duff v. Rodenkirchen, 110 Misc. 575, 193 App. Div. 898; Weinstein v. Weber, 178 N. Y. 94; Marsh v. Consumers Park Brewing Co., 220 N. Y. 205; Hutton v. Benkard, 92 N. Y. 295; Lockwood v. Mildeberger, 159 N. Y. 181; Thayer v. Finton, 108 N. Y. 394; Beardsley v. Hotchkiss, 96 N. Y. 201.) III. The 1901 trust was measured by two lives in being — Mr. Morgan’s and Louisa P. Satterlee’s — and therefore it may not be presumed that Mrs. Satterlee intended to violate the rule against perpetuities by adding thereto trusts for the third lives of her daughters. (Matter of de Varona, 274 App. Div. 303, 299 N. Y. 726; Kahn v. Tierney, 135 App. Div. 897, 201 N. Y. 516; Matter of Harbeck, 161 N. Y. 211; Seitz v. Faversham, 205 N. Y. 197.)
    J. Fear on Brown and James H. Nichols for Leonhard A. Keyes, respondent.
    I. Mrs. Satterlee by her will expressly exercised the power over the 1901 fund; or necessarily must be held to have exercised the power by reason of section 18 of the Personal Property Law. (Matter of Thompson, 274 App. Div. 49; Lockwood v. Mildeberger, 159 N. Y. 181; Matter of Davis, 186 Misc. 397; Chase Nat. Bank of City of N. Y. v. Central Hanover Bank & Trust Co., 265 App. Div. 434.) II. The exercise of the power was lawful; it does not unlawfully suspend the estate. (Looram v. Looram, 269 N. Y. 296; New York Life Ins. & Trust Co. v. Cary, 191 N. Y. 33; New York Trust Co. v. Weaver, 271 App. Div. 776, 298 N. Y. 1.) III. Even if Mr. Morgan’s will is read back into the instrument of 1901, there is no unlawful suspension because there were until his death persons in being who could give perfect title and the trust was revocable until his death. (Williams v. Montgomery, 148 N. Y. 519; Epstein v. Werbelovsky, 193 App. Div. 428, 233 N. Y. 525; City Bank Farmers Trust Co. v. Cannon, 291 N. Y. 125.)

      John F. Keating, guardian ad litem, for Sandra Satterlee Ingalls, respondent.
    I. Mrs. Satterlee in her will intended to and did pass the $1,000,000 sum referred to in her father’s letter declaration of January 2, 1901, which became a part of the sum bequeathed in trust under section 3 of article V of her father’s will. (Matter of Davis, 186 Misc. 397.) II. Mrs. Satterlee’s appointment of the $1,000,000 sum does not violate the unlawful suspension of ownership provisions of section 11 of the Personal Property Law. The period of suspension did not begin until Mr. Morgan’s death in 1913. (City Bank Farmers Trust Co. v. Cannon, 291 N. Y. 125; Sperry v. Farmers’ Loan & Trust Co., 154 App. Div. 447; Richardson v. Richardson, 298 N. Y. 135; New York Life Ins. & Trust Co. v. Cary, 191 N. Y. 33; New York Trust Co. v. Weaver, 298 N. Y. 1; Williams v. Montgomery, 148 N. Y. 519; Epstein v. Werbelovsky, 193 App. Div. 428, 233 N. Y. 525.) III. Even if Mrs. Satterlee’s appointment of the $1,000,000 sum effected an unlawful suspension in respect of Eleanor Satterlee’s one-half trust share therein, the court can still carry out her intention in full, without adversely affecting any beneficiary’s rights, by marshaling the entrusted property. (Fargo v. Squiers, 154 N. Y. 250; Cheever v. Cheever, 172 App. Div. 353; Matter of Woodward, 174 Misc. 919.)
   Desmond, J.

Plaintiffs brought this action to obtain a judicial settlement of their final accounts as trustees under a declaration of inter vivas trust made by J. Pierpont Morgan in 1901. There was no dispute as to the correctness of the accounts as such, but appellant Eleanor Morgan Satterlee, granddaughter of the trustor Morgan, and sole appellant in this court, raised a question, to be discussed herein, as to the disposition of the corpus. Essentially, her position was this: that the will of appellant’s mother (Louisa Satterlee, daughter of J. Pierpont Morgan) had failed to exercise the power given to Louisa Satterlee by the will of J.' Pierpont Morgan to appoint this fund, so that, as appellant argued, the fund itself, by the terms of the J. Pierpont Morgan will, passed outright, in equal shares, to appellant and her sister, as the only children of Louisa Satterlee. The facts are all undisputed. The trial court decided that appellant’s mother had, by her will, validly and effectually exercised a power given her by J. Pierpont Morgan’s will, to appoint the remainder of the fund here being accounted for. That exercise of the power, held the trial court, was in the creation, in Mrs. Satterlee’s will, of two trusts from the principal of the fund, each for one half thereof, one such trust to run during the life of appellant, and the other during the fife of appellant’s only sister. In arriving at that conclusion, later unanimously affirmed by the Appellate Division, First Department (no opinion), the Trial Justice rejected certain contentions of appellant, which we will examine herein: first, that Mrs. Satterlee’s will shows no intention to appoint the Morgan trust fund in further trusts, and, second, that any doubt as to that should be resolved against the testamentary disposition of the fund by Mrs. Satterlee, since, according to appellant’s theory, such a disposition (by way of setting up the new testamentary trusts) would violate the rule against perpetuities.

Examination of the facts starts with a declaration of trust made by J. Pierpont Morgan, in 1901, in a letter from Mr. Morgan to a banking firm in which he was a partner. It directed that the firm, out of moneys it owed him, should set aside the sum of $1,000,000, of which sum he, in the letter, declared himself trustee for his daughter, Louisa P. Satterlee, appellant’s mother. A further direction in the letter was that the sum should, during the settlor’s life, remain in the firm’s business as a loan bearing 6% interest, sneh interest, as it accrued, to be paid to Mrs. Satterlee. Finally, the letter commanded that, at the settlor’s death, he was to be succeeded as trustee of the fund, by such person or persons as he should name in his will as trustee or trustees of property to be directed in said will to be held in trust for his daughters; and that, after his death, such testamentarily named trustees should hold the $1,000,000 fund upon the same trusts and in the same manner, as should be directed by his will in respect to property left by the will in trust for the daughter. The 1901 trust was duly carried out by the banking firm until, on March 31, 1913, J. Pierpont Morgan died, leaving a will made in January, 1913. (Appellant was born in 1905.)

J. Pierpont Morgan’s will made no direct or explicit reference to the $1,000,000 fund here in dispute, but included a provision creating another trust of $3,000,000, income to be paid to his daughter Mrs. Satterlee for life, and remainder, at her death, to her surviving issue subject, however, to the power and authority which I hereby give to my said daughter to dispose of said sum of Three Millions of Dollars by her last will and testament among her issue in such shares or proportions and on such lawful trusts as she may think proper. ’ ’ It has been held below in this suit and is not now disputed by any party, that, in view of the language of the 1901 trust, the above-quoted language from the will constituted a sufficient direction as to the terms on which the $1,000,000 fund should be held after Mr. Morgan’s death — that is, in trust to continue to pay the income to Mrs. Satterlee during her life with the principal, at her death, going to her daughters unless Mrs. Satterlee should, meanwhile, have disposed of it by her will. The only problem, therefore, is as to whether Mrs. Satterlee, who died in 1946, did, by her will made in 1936, validly exercise that power of appointment.

Mrs. Satterlee’s will contained no express reference to the $1,000,000 trust, as such. It did, however, contain language which has been correctly construed below as an exercise of her power of appointment as to that fund, as well as to the other ($3,000,000) trust set up for her in her father’s will. Article III of Mrs. Satterlee’s will begins with a recital that under paragraph 3 of article V of her father’s will the principal of a certain sum in which she had a life interest, was given, upon her death, to her issue, subject to a certain power and authority, etc., and that “ therefore I do make the following dispositions: * * * ”, etc. The dispositions which follow, in Mrs. Satterlee’s will, are those above referred to which create two secondary trusts for her two daughters (appellant and her sister), with remainders over. Appellant makes much of the omission from her mother’s will of any specific reference to the $1,000,000 trust. But paragraph 3 of article V of J. Pierpont Morgan’s will, which paragraph Mrs. Satterlee recites as the source of her power of disposal, is the paragraph which, while setting up the other ($3,000,000) trust, contains what all concerned have accepted as directions for the carrying on of the earlier made ($1,000,000) trust. Four times, in article III of her will, the Satterlee will refers to “ the entire said principal sum ” as to which testatrix had a life interest and a testamentary power of disposition. Obviously she knew that this 11 entire said principal sum ” consisted of two funds, totaling $4,000,000. The will nowhere suggests that testatrix intended to leave undisposed of, any property over which she had control. The situation is thus one where, whether or not we conclude that the power exercising language of the Satterlee will expressly covers the $1,000,000 fund, it is legally sufficient for that purpose, and there is no sign of a contrary purpose. Therefore, we could not hold to be erroneous as matter of law the rulings below that testatrix intended by her will to appoint the $1,000,000 fund. Furthermore, section 18 of the Personal Property Law would bring about the same result since, by that statute, “ Personal property embraced in a power to bequeath, passes by a will or testament purporting to pass all the personal property of the testator ”, unless a contrary intent appears expressly or by necessary implication (see Low v. Bankers Trust Co., 270 N. Y. 143).

Appellant’s other approach is this: she argues that article III, above referred to, of Mrs. Satterlee’s will, even if it would bear the construction given it below (as exercising the power of appointment with respect to the 1901, or $1,000,000 trust), should not be so read since, according to appellant, such a reading would result in a violation of the rule against perpetuities. Appellant regards the $1,000,000 trust as being limited first by the settlor’s life, then by Mrs. Satterlee’s life after Mr. Morgan’s death and until her death, and then, as to half thereof, by this appellant’s life. In other words, says appellant, alienability of the fund was, by the 1901 Morgan trust and the Satterlee will, read together, illegally suspended for three lives (Personal Property Law, § 11; Real Property Law, § 42). We assume that would be so if Mr. Morgan, had not, by (the legal effect of) his 1901 declaration of trust, retained for himself a reversion and a right to revoke the trust (see Chase Nat. Bank v. Frazier, 243 App. Div. 623, affd. 269 N. Y. 541). If Mr. Morgan had, by his 1901 declaration, created a life interest and not a reversion but a remainder, with a power of appointment as to the remainder, then that declaration and the instrument (Mrs. Satterlee’s will) exercising the power, would be read together as one, as of- 1901, and the total disposition would be limited by three lives (Mr. Morgan’s, Mrs. Satterlee’s, and the life of one of the latter’s daughters). But the 1901 declaration did not dispose of the fund by creating a remainder and a life interest. It carved out a life interest for Mrs. Satterlee, provided that during her life after testator’s death the fund would remain in trust for her with new trustees, and then directed that the ultimate disposition would be as dictated by Mr. Morgan’s will. No reason appears why the settlor could not, validly, have revoked that trust during his life. During his life, he and Mrs. Satterlee together had full ownership and full right to dispose of the fund. The period of suspension, therefore, did not begin until after the power to revoke ended, at his death (see Williams v. Montgomery, 148 N. Y. 519, 526). The subsequent trusts were measured by two lives only (those of Mrs. Satterlee and one of her daughters), and the first trust was measured by Mrs. Satterlee’s life only, even though the will provided that its continuance after Mr. Morgan’s death would be under new trustees. These views are, we think, fully explained and sustained in New York Life Ins. & Trust Co. v. Cary (191 N. Y. 33, 38-42); Looram v. Looram (269 N. Y. 296), and New York Trust Co. v. Weaver (298 N. Y. 1, 10, 11). Other arguments of respondents, pointed toward the same result, need not be considered.

We are informed that appellant died on April 11, 1951, two days qfter the argument of the appeal in this court. Our decision will be entered nunc pro tune as of the date of argument, April 9, 1951 (see Bergen v. Wyckoff, 84 N. Y. 659; MacLean v. Hart, 238 App. Div. 1, affd. 262 N. Y. 552).

The judgment should be affirmed, as of April 9, 1951, with costs to all parties appearing separately and filing separate briefs, payable out of the fund.

Loughban, Ch. J., Lewis, Conway, Dye, Fuld and Fboessel, JJ., concur.

Judgment affirmed.


author: Froessel, J.

text:
    The People of the State of New York, Appellant, v. Paul Kruger, Respondent.
    Argued March 6, 1951;
    decided May 24, 1951.

      Edwin G. O’Connor, District Attorney, for appellant.
    I. The fact that the justice of the peace excused two jurors before the case came on for trial is not reversible error. (People v. Jackson, 111 N. Y. 362.) II. Irregularities in trial juries if not prejudicial to defendant are not grounds of error. (Cox v. People, 80 N. Y. 500.) III. Justices of the peace have the right in their discretion to excuse jurors.

      John Leo Sullivan for respondent.
    The justice of the peace had no right to excuse jurors outside of open court. (N. Y. Const., art. VI, § 18; People v. McLaughlin, 57 App. Div. 454.)
   Froessel, J.

Defendant was found guilty of violating section 185 of the Penal Law (failing to provide proper sustenance for cattle) by a jury of six persons before a justice of the peace, sitting as a Court of Special Sessions, in the Town of Pomfret, Chautauqua County. The County Court, Chautauqua County, reversed the conviction “ on the law alone ” and ordered a new trial. The People have appealed to this court. The only question before us is whether reversible error was committed when the justice of the peace excused two jurors in advance of trial, without the knowledge or consent of defendant. We find that no such error was committed.

The jurors were excused by the justice for reasons of their personal convenience between the time the venire was issued on March 16, 1950, and the time of the trial on the evening of March 23d. On that evening the justice proceeded to draw the jury from the box containing the names of the twelve persons previously impaneled; the first two names drawn were those of the excused jurors. The justice thereupon announced that he had previously excused such jurors, stating one would have had to be absent from school, and the other from shop. There were thus ten jurors present out of the original venire of twelve, and the justice proceeded to call six of the ten, none of which were challenged by the People. A trial jury was then chosen, which jury was accepted by both the People and defendant.

Thus the jury was drawn in literal compliance with sections 706 and 710 of the Code of Criminal Procedure, which provides for the method of drawing jurors in courts of special sessions. Since defendant had but three peremptory challenges (Code Crim. Pro., § 707), and the record does not show that any others were taken, at least one of the ten jurors was in any event surplus.

Section 545 of the Judiciary Law clearly expresses the power of the justice to excuse the jurors. That section states: ‘ ‘ The judge of the trial court may, in his discretion on the application of a trial juror, excuse him from the whole or a part of the time of service required of him as a juror or may postpone the time of service of a juror to a later day during the same or a subsequent term.” It applies to the case at bar inasmuch as section 11 of the Code of Criminal Procedure provides that a court of special sessions is one of the courts having original jurisdiction of criminal actions, and section 358 of the code states that the trial jury in a criminal court is formed as prescribed by the judiciary law.”

It will be noted that section 604 of the Judiciary Law, which is contained in article 17 thereof, dealing with jurors in counties within cities having a population of one million or more, expressly requires a person summoned as a juror to present his notice “ to the judge in open court ” or ‘‘ by a person capable of making the necessary proof in relation to his claim to be excused.” On the other hand, the above-quoted section 545, contained in article 16 thereof, and dealing with jurors in counties outside of cities having a population of one million or more, contains no such requirement of personal attendance. The distinction is not without significance as to legislative intent. (See, also, Code Crim. Pro., § 371, made applicable to courts of special sessions by § 62 of the code.)

As to defendant’s motion to dismiss all the jurors and draw a new jury ”, section 362 of the Code of Criminal Procedure, expressly made applicable to courts of special sessions by section 62 of the code, provides that such a challenge to the panel can be founded “ only on a material departure, to the prejudice of the defendant, from the forms prescribed by the judiciary law ”. Inasmuch as there was no such material departure, but rather an adherence to the provisions of section 545 of the Judiciary Law, defendant’s challenge must fail. (See People v. Jackson, 111 N. Y. 362; People v. Packenham, 115 N. Y. 200.)

Finally, even assuming an irregularity here, there is no showing that any prejudice whatever resulted to defendant. “ It is well settled that mere irregularities in the drawing of grand and petit jurors, is not a ground for reversing a convietiqn, unless it appears that they operated to the injury or prejudice of the prisoner ” (Cox v. People, 80 N. Y. 500, 511; Ferris v. People, 35 N. Y. 125,129; People v. Prior, 294 N. Y. 405, 411-412, motion for reargument denied 294 N. Y. 975; Rawlins v. Georgia, 201 U. S. 638, 640).

Since the County Court’s order specified that its reversal was on the law alone ”, and we may not look to the opinion, we are obliged to presume that the questions of fact were not considered by that court, and it is thus necessary to remit the case for a determination of the facts (Code Crim. Pro., § 543-a; People v. Moskowitz, 289 N. Y. 69; People v. Kaye, 295 N. Y. 9, 14; People v. Lee, 300 N. Y. 422, 425). Accordingly, the order of the County Court should be reversed, and the ease remitted to that court for disposition of the facts. (See People v. Moskowitz, 289 N. Y. 69, supra.)

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

Order reversed, etc.


author: Froessel, J. Desmond, J.

text:
    Denihan Enterprises, Inc., Respondent, v. William O’Dwyer, as Mayor of the City of New York, et al., Constituting the Board of Estimate of the City of New York, et al., Appellants.
    Argued March 8, 1951;
    decided May 24, 1951.

      John P. McGrath, Corporation Counsel (Harry E. O’Donnell, Reuben Levy and Benjamin Offner of.counsel), for appellants.
    I. The proposed condemnation proceedings to widen a public street and to acquire a site for a public parking garage and public park will result in relieving traffic congestion and in providing needed park space. Such acquisitions are clearly in the public interest and should therefore be approved as furthering a public purpose. (Hesse v. Rath, 249 N. Y. 436; Matter of New York City Housing Authority v. Muller, 270 N. Y. 333; Ambassador Management Corp. v. Incorporated Vil. of Hempstead, 186 Misc. 74, 270 App. Div. 898, 296 N. Y. 666, 330 U. S. 835; McSorley v. Fitzgerald, 359 Pa. 264; Parr v. Ladd, 323 Mich. 592; City of Richmond v. Dervishian, 190 Va. 398; Cleveland v. City of Detroit, 324 Mich. 527; Lowell v. Boston, 322 Mass. 709; Miller v. City of Georgetown, 301 Ky. 241; Matter of Murray v. La Guardia, 291 N. Y. 320; People of Puerto Rico v. Eastern Sugar Associates, 156 F. 2d 316, 329 U. S. 772.) II. Where property is acquired by condemnation for a project which will serve a public purpose, it is not a valid objection that the project is to be privately operated or that incidental private benefit may result. (Matter of Murray v. La Guardia, 291 N. Y. 320; Weitzner v. Stichman, 271 App. Div. 255, 296 N. Y. 907; Brown v. United States, 263 U. S. 78; People of Puerto Rico v. Eastern Sugar Associates, 156 F. 2d 316; Matter of Watkins v. Ughetta, 273 App. Div. 969, 297 N. Y. 1002; Ziegler v. Chapin, 126 N. Y. 342; Gerdes v. Reynolds, 281 N. Y. 180; Kalmanash v. Smith, 291 N. Y. 142; Knowles v. City of New York, 176 N. Y. 430; Hopkins v. Hanna, 135 Misc. 750.)

      Raymond J. McGrover for respondent.
    I. Triable issues are presented as to whether New York Life Insurance Company is the primary beneficiary and the public, at most, an incidental beneficiary in this plan, which requires exercise of the city’s power of eminent domain and, therefore, should have public benefit, and not private benefit, as its dominating purpose. (Matter of Mayor, Aldermen & Commonalty of City of N. Y., 99 N. Y. 569; Nevins, Inc., v. Kasmach, 279 N. Y. 323; Lowell v. Boston, 111 Mass. 454; Lucien Lelong, Inc., v. Mohr & Co., 169 Misc. 560, 257 App. Div. 820; Matter of Eureka Basin Warehouse & Mfg. Co., 96 N. Y. 42; Matter of Deansville Cemetery

      Assn., 66 N. Y. 569; Matter of New York City Housing Authority v. Muller, 270 N. Y. 333.) II. The garage arranged for by this contract will be a storage garage rather than the transient parking type the Legislature must have intended when it enacted the enabling legislation. A storage garage is by nature a private commercial venture. (Matter of Monument Garage Corp. v. Levy, 266 N. Y. 339; Ambassador Management Corp. v. Incorporated Vil. of Hempstead, 186 Misc. 74, 270 App. Div. 898, 296 N. Y. 666, 330 U. S. 835; City of Cleveland v. Ruple, 130 Ohio St. 465.) III. The City of New York should be enjoined from carrying out the terms of the contract entered into with the insurance company as prayed for in the complaint, for the reason that said contract requires said city to enter into a lease for a term of fifty years whereas the New York City Charter prohibits said city from entering into a lease for longer than ten years with renewal for no longer than ten years. (Matter of Tiffany, 179 N. Y. 455; Matter of Mooney v. Cohen, 272 N. Y. 33; People v. Dwyer, 215 N. Y. 46; People ex rel. Leet v. Keller, 157 N. Y. 90; People ex rel. Savory, Inc., v. Plunkett, 295 N. Y. 180.) IV. In permitting the insurance company to stipulate so many terms favorable to itself it has become impossible for the City of New York to get the highest rental as is required of it by both chapter 453 of the Laws of 1949 and the New York City Charter ([1938], § 384, subd. b). (Bell Tel. Co. v. Parker, 187 N. Y. 299.)

      Francis X. Conion and Sidney 0. Raphael for Shamrock Cleaners, Inc., amicus curiae, in support of respondent’s position.
    I. The complaint sufficiently alleges that the condemnation is not in the public interest and will result in a misuse of public funds. (Navarro v. Fiorita, 271 App. Div. 62; Allcock v. Cohen, 269 App. Div. 1050; Matter of New York City Housing Authority v. Muller, 270 N. Y. 333; Matter of Hopper v. Britt, 203 N. Y. 144; Matter of Murray v. La Guardia, 291 N. Y. 320; Pocantico Water Works Co. v. Bird, 130 N. Y. 249; Matter of Long Sault Development Co. v. Kennedy, 158 App. Div. 398.) II. The contract between the City of New York and the insurance company is discriminatory and prohibits competitive bidding.

      Harry TL. Chambers for Abraham B. Cox and others, amici curies, in support of respondent’s position.
    I. The Desmond Act (L. 1949, ch. 453) violates the Federal and State Constitutions in that it authorizes the acquisition, by eminent domain, of private property for private use. (Matter of New York City Housing Authority v. Muller, 270 N. Y. 333; Matter of Hopper v. Britt, 203 N. Y. 144.) II. The Desmond Act is unconstitutional insofar as it purports to authorize the condemnation of approximately 37% of the proposed garage site for “ stores and other commercial facilities ”, all of which are clearly without the declaration of public emergency. (Ontario Knitting Co. v. State of New York, 69 Misc. 145.) III. The issue as to whether the taking is for a private or public purpose involves mixed questions of fact and law, which may not be resolved upon a motion to dismiss, pursuant to subdivision 5 of rule 106 of the Buies of Civil Practice. (Pocantico Water Works Co. v. Bird, 130 N. Y. 249; Matter of Deansville Cemetery Assn., 66 N. Y. 569; Matter of Long Sault Development Co. v. Kennedy, 158 App. Div. 398, 212 N. Y. 1; Matter of Mayor, Aldermen & Commonalty of City of N. Y., 135 N. Y. 253; Nevins, Inc., v. Kasmach, 279 N. Y. 323.) IV. The contract is discriminatory and is so drawn as to discourage competitive bidding. (Brady v. Mayor of City of N. Y., 20 N. Y. 312; Grace v. Forbes, 64 Misc. 130.) V. The threatened acts are such as to result in a waste of public funds. Prevention of competitive bidding is presumptive evidence of injury to the taxpayers. (American La France & Foamite Corp. v. City of New York, 156 Misc. 2, 246 App. Div. 699.) VI. The proposed use of the property, for garage and store purposes, would be illegal and violative of the city’s own zoning resolution. (O’Brien v. Town of Greenburgh, 239 App. Div. 555, 266 N. Y. 582; Brocoris Realty Corp. v. Village of Scarsdale, 241 App. Div. 735; Schwab v. Graves, 221 App. Div. 357, 247 N. Y. 575.)
   Froessel, J.

In this taxpayer’s action brought under section 51 of the General Municipal Law, plaintiff-respondent seeks to enjoin the City of New York and its board of estimate from carrying out a contract made with the New York Life Insurance Company, hereinafter called the Company. Special Term dismissed the complaint for legal insufficiency. The Appellate Division unanimously reversed, denied the motion to dismiss, granted a temporary injunction, and certified to us the following question: “ Was the order of Special Term, dated May 2, 1950, granting defendants’ motion to dismiss the complaint, on which judgment was entered May 12,1950, properly made? ”

Under the contract challenged, the city agrees (1) to acquire by condemnation, pursuant to subdivision 3 of section 72-j of the General Municipal Law (L. 1949, ch. 453) about two thirds of the block (the easterly portion) bounded by East 64th and East 65th Streets, Second and Third Avenues, Manhattan; (2) to offer the same at public auction; (3) for a term of fifty years; (4) upon certain terms and conditions hereinafter referred to; (5) subject to conditions providing for the construction of a public parking garage, and (6) for commercial facilities.

The Company agrees to bid for the lease, as proposed, which shall be subject to the following conditions:

(a) The successful bidder shall construct on said real property a public parking garage (title to which shall vest in the city) accommodating at least 750 cars;

(b) the structure may include stores and other commercial facilities on the ground and basement floor along Second Avenue to a depth of 130 feet;

(c) the structure may not exceed 2 stories in height (with cellar and subcellar);

(d) the roof must contain 4 feet of sod, grass and planting;

(e) the initial rent shall consist of the total awards, interest and expenses of this condemnation as well as for a condemnation for widening East 65th Street 14 feet, plus taxes accruing between condemnation and the execution of the lease, $836,450 of which must be paid five days prior to such execution, and the balance five days after the amount thereof is certified by the city comptroller; in addition, there shall be paid an annual rental of at least $25,200;

(f) the successful bidder (lessee) shall remove all tenants (of which there are more than 100);

(g) the city agrees to rezone 11 for the purposes of the said lease ’ ’ the area condemned;

(h) the south half of the landscaped roof shall be improved “as a public sitting park ”;

(i) the lessee may determine the amount of space allotted for storage or transient use ”, but shall consider ” the following recommendations of the traffic commission:

“ This garage will fill a need for storage space for the automobiles owned by the residents of the area and will afford a limited amount of space for transient parking during the day.”

(j) The garage rates to be charged to be approved by the city, but lessee may charge after operating expenses a return ” of 6% annually on the original investment [very broadly defined] to cover interest, yield, depreciation, obsolescence and amortization ”; and

(k) the lessee shall pave, landscape, and construct a mall and improve East 65th Street and relocate the facilities therein, all of which shall be deemed part of the “ investment

Plaintiff contends that the contract is illegal because (1) the use contemplated is not public but private; (2) it is not authorized by the statute (General Municipal Law, § 72-j, subd. 3) since that statute relates to “ parking garages or parking spaces ” (italics supplied), and the contract here contemplates primarily a storage garage; (3) even if authorized and found in some respects to be public in nature, it is so subordinated to the private benefit of the Company that the end result is a private use; (4) the contemplated use would violate the zoning resolution of the city, and its contractual obligation to rezone is illegal;

(5) the contract specifications are such as to discourage competitive bidding and will insure that the only bidder at the sale will be the Company, particularly since it alone will receive many very valuable benefits therefrom, thereby depriving the city of the opportunity to obtain the highest marketable rental as required by the statute and the New York City Charter, and

(6) the provision for a fifty-year lease is in violation of subdivision b of section 384 of the charter.

It is well settled that whether or not a proposed condemnation is for a public purpose is a judicial question (Matter of Deansville Cemetery Assn., 66 N. Y. 569; Matter of Niagara Falls & Whirlpool Ry. Co., 108 N. Y. 375; Pocantico Water Works Co. v. Bird, 130 N. Y. 249); but legislative findings in this respect are entitled to great weight (Matter of Murray v. La Guardia, 291 N. Y. 320; Matter of New York City Housing Authority v. Muller, 270 N. Y. 333). Judicial examination is less critical, however, where the State itself is to be vested with the property (Matter of Long Sault Development Co. v. Kennedy, 158 App. Div. 398, affd. 212 N. Y. 1, writ of error dismissed 242 U. S. 272). It is equally well settled that proceedings in eminent domain to acquire property for street or park purposes are constitutionally permissible as serving a public purpose. (Matter of City of New York [Clinton Ave.], 57 App. Div. 166, 171, affd. 167 N. Y. 624; Brooklyn Park Comrs. v. Armstrong, 45 N. Y. 234, 239, 240; People v. Adirondack Ry. Co., 160 N. Y. 225, 247-248, affd. sub nom. Adirondack Ry. Co. v. New York, 176 U. S. 335.) Nor do we question the legality of the concept that private property may be condemned for parking motor vehicles when the public is primarily served in the taking of such vehicles from our streets to relieve traffic congestion. But whether or not the use here contemplated, and the method in which it is exercised, is authorized, is another question.

We are here and now solely concerned with the legal sufficiency of plaintiff’s complaint. Giving the pleader the benefit of every favorable inference, and assuming the truth of the allegations of its complaint, as we must (Blanshard v. City of New York, 262 N. Y. 5, 12; Abrams v. Allen, 297 N. Y. 52) notwithstanding the fact that its proof may well fall far short of establishing them as facts, we cannot say as a matter of pleading that no cause of action whatsoever is set forth, and that no triable issues are presented.

Without setting out the detailed allegations of plaintiff’s complaint, sufficient facts are alleged purporting to show that the public use here may be only incidental and in large measure subordinate to the private benefit to be conferred on the Company, and not for the purposes authorized by the statute. Of course an incidental private benefit, such as a reasonable proportion of commercial space, is not enough to invalidate a project which has for its primary object a public purpose (Matter of Murray v. La Guardia, supra; Matter of New York City Housing Authority v. Muller, supra; Bush Term. Co. v. City of New York, 282 N. Y. 306; Matter of Mayor, Aldermen & Commonalty of City of N. Y., 135 N. Y. 253), but the use is not public where the public benefit is only incidental to the private (Matter of Eureka Basin Warehouse & Mfg. Co., 96 N. Y. 42). Moreover, the validity of a statute upon one set of facts is immaterial if in its application to another situation it results in invalidity (Nashville, C. & St. L. Ry. v. Walters, 294 U. S. 405, 414, 415; Municipal Gas Co. v. Public Service Comm., 225 N. Y. 89, 95, 96).

Among other things, plaintiff alleges in effect that after the Company — the only prohable lessee — has provided storage space for all of its tenants, and made provision for the 308 now existing car spaces in the area to be condemned, the net result will be that only 17 additional spaces will be available for the general public. Plaintiff also alleges with some particularity that many of the specifications are of such character as to benefit the Company privately and exclusively, and neither the public nor other bidders would or could derive any substantial benefit therefrom, such, e.g., as the low height limitation (notwithstanding expensive subcellar construction) which does not help materially to relieve parking congestion but grants a valuable easement of light and air for at least fifty years for the benefit of the Company’s apartment house across the street, renting for $60 to $75 per room; the landscaping of the roof for an elevated public park on the southerly half, and a strictly private park on the northerly half, for its tenants to view, rather than employing same for parking purposes claimed by appellants to be necessary; the construction of the center mall, necessitating the widening of one block of East 65th Street, only to create a bottleneck at each end, and the location of entrances and exits across the street from the entrance to the Company’s apartment house; the onerous financial arrangements, included in an ultimate probable outlay of $4,000,000, without right to mortgage; all of which, taken together, with other allegations of the complaint, plaintiff asserts, amount not only to a taking primarily for a private rather than a public use, but also result in discouraging competitive bidding and in unduly discriminating in favor of the Company, thus assuring it of continued high rentals from its apartments.

In the face of the averments in the complaint before us, it cannot be summarily determined as a matter of law that no cause of action is stated, and that plaintiff, a taxpayer and owner of a substantial portion of the property sought to be condemned, must yield its property to the governmental power of eminent domain without at least a trial of the issues raised by it. As we said in Weiskopf v. City of Saratoga Springs (269 N. Y. 634, 635), This is not a case to be decided on the pleadings. The constitutionality of the regulations must be decided after the facts are determined on the trial.”

Inasmuch as this is the only question now before us, we do not pass on any other question discussed in the briefs, such as the city’s right to “ contract” in advance for rezoning, and its powers to lease for more than ten years (New York City Charter [1938], § 384, subd. b). Accordingly, the question certified should be answered in the negative, and the order of the Appellate Division should be affirmed, with costs.

Desmond, J.

(dissenting). I dissent and vote to reverse the order, with costs, answer the certified question in the affirmative and dismiss the complaint. Nothing could be accomplished by a trial of any of plaintiff’s allegations, since none of them exhibit any justiciable issue. We all agree that the Legislature has settled the question of whether condemnation of land for a public parking garage, to be built by the city but leased to a private operator, is for a public purpose (General Municipal Law, § 72-j). The public nature of such a use would not be destroyed by a demonstration, on a trial of this action, that this proposed garage will largely benefit, and is principally desired by, the owner of the apartment house across the street or its tenants, or that all concerned expect that this lease will be bought at auction by that particular owner, or that the terms of the lease are such as to make it probable that the owner across the street will be the successful bidder therefor, or that the project may accomplish only a little alleviation of traffic conditions, or that, in the end, the apartment house tenants across the street, rather than the general public, will have principal use of the garage. All those are, on their face, arguments not against the legality, but as to the feasibility, or wisdom, or fairness, of the expenditure. .Such arguments, when rejected by the appropriate legislative body, cannot be re-examined by the courts (Rindge Co. v. County of Los Angeles, 262 U. S. 700, 705, 706, 707; Matter of New York City Housing Authority v. Muller, 270 N. Y. 333, 342; Matter of Murray v. La Guardia, 291 N. Y. 320, 329, 330; Weitzner v. Stichman, 271 App. Div. 255, affd. 296 N. Y. 907).

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

Order affirmed, etc.


text:
    The People of the State of New York, Respondent, v. Frank Erickson, Appellant.
    Argued April 11, 1951;
    decided May 24, 1951.

      Edward J. Bennett and Harold H. Corbin for appellant.
    I. The sentences on counts 3 to 60 were unauthorized because book-making is a continuous crime involving professional operation of a business. Each bet does not constitute a separate crime. The plea of guilty, therefore, authorized but one sentence on the substantive charge of book-making. (People ex rel. Lichtenstein v. Langan, 196 N. Y. 260; People v. Laude, 81 Misc. 256; Watts v. Malatesta, 262 N. Y. 80; People v. Goldstein, 295 N. Y. 61; People v. Bright, 203 N. Y. 73; Hortel Products Corp. v. Prudential Ins. Co., 290 N. Y. 44; People v. Kelly, 152 Misc. 372; Crepps v. Durden, 2 Cowp. 640; Mayor of City of N. Y. v. Ordrenan, 12 Johns. 122; Apothecaries Co. v. Jones, [1893] 1 Q. B. 89.) II. Section 2190 of the Penal Law is unconstitutional insofar as it authorizes cumulative sentences extending beyond one year by a court of special sessions upon a single information. (People ex rel. Tweed v. Liscomb, 60 N. Y. 559; People v. Faden, 271 N. Y. 435; People ex rel. Gordon v. Ashworth, 290 N. Y. 285; People v. Bellinger, 269 N. Y. 265; People ex rel. Kipnis v. McCann, 199 App. Div. 30; People v. Kaminsky, 208 N. Y. 389; People ex rel. Comaford v. Dutcher, 83 N. Y. 240.)

      Frank S. Bogan, District Attorney {Richard G. Denser of counsel), for respondent.
    I. The information charged sixty different crimes and the separate sentences imposed were valid and proper. (People v. Corbalis, 178 N. Y. 516; People ex rel. Fifth Ave. Bldg. Co. v. Williams, 198 N. Y. 238; People v. Cox, 286 N. Y. 137; People v. Devinny, 227 N. Y. 397; State v. Cotner, 87 Kan. 864; Commonwealth v. Respass, 21 Ky. L. Rep. 140; People v. Tower, 135 N. Y. 457; People v. Dileo, 194 App. Div. 793.) II. Section 2190 of the Penal Law is not rendered unconstitutional by the fact that it empowers the court of special sessions to impose cumulative sentences aggregating more than one year of imprisonment under a multiple-count information. (People ex rel. Gordon v. Ashworth, 290 N. Y. 285; People v. Bellinger, 269 N. Y. 265; People ex rel. Pincus v. Adams, 274 N. Y. 447; People v. Faden, 271 N. Y. 435; People ex rel. Tweed v. Liscomb, 60 N. Y. 559.)
   Desmond, J.

Defendant pleaded guilty in a Court of Special Sessions of the City of New York to each of the sixty counts of an information. The first of those counts charged a conspiracy to violate section 986 of the Penal Law (the “ book-making ” statute). Each of the following fifty-nine counts alleged a violation of section 986. Defendant was, thereafter, sentenced, on each of the first two counts, to imprisonment for one year in the penitentiary and a $500 fine, or in default of payment of the fine, thirty days additional in the city prison. On counts 3, 4 and 5, he was, in each instance, given the same sentence as for counts 1 and 2, except that the penitentiary sentence was suspended. On each of the other fifty-five counts, the punishment was a $500 fine with thirty days’ imprisonment in default of payment thereof. In other words, the total sentence, on all sixty counts, was five years’ imprisonment with the last three years thereof suspended, and $30,000 in fines. Defendant-appellant’s principal contentions are two, both of which were made by him, and rejected, at the time of sentence. First, he argues that section 986 penalizes not separate acts of, or in connection with, gambling, but only the operating of a bookmaking business, and that, accordingly, the nonconspiracy counts in the information (numbers 2 to 60) charged not fifty-nine crimes, but one crime, and could result in one sentence only. His second point is, that if these were sixty different crimes, then section 2190 of the Penal Law authorizing separate consecutive sentences on those sixty counts, is unconstitutional as violating these parts of our State Constitution: article I, section 2 (jury trial), article I, section 6 (indictment), and article VI, section 18 (jurisdiction of inferior courts). Those positions of defendant-appellant will be dealt with separately herein.

Section 986 of the Penal Law is a long statute which makes guilty of a misdemeanor a person who is guilty of any one of a number of different kinds of activities and acts. Defendant would have us construe the section as if it merely prohibited the engaging in book-making, and as if all the rest of the statutory language was merely explanatory of what the Legislature meant by “ book-making ”. In other words, defendant says that this is the kind of criminal statute which penalizes not the separate doing of separate acts, but the pursuit of a business, the habitual and regular doing of certain acts as an occupation or pursuit, citing Crepps v. Durdon (2 Cowp. 640); Apothecaries Co. v. Jones ([1893] 1 Q. B. 89); Mayor of City of N. Y. v. Ordrenan (12 Johns. 122); Matter of Snow (120 U. S. 274); Ex Parte Nielsen (131 U. S. 176). But those decisions are not controlling or determinative here, since, in each of them, the statute, or part of a statute being construed, made criminal a habitual course of conduct, not specific described acts. If section 986 were, as defendant says it is, merely a prohibition against “ engaging ” in book-making, then defendant, under the authorities just above cited, would probably be right. But he puts too much stress, it seems to us, on the first separate part of section 986 which provides punishment for: Any person who engages in pool-selling, or book-making with or without writing at any time or place ’ ’; and treats all the rest of the statute as being merely descriptive or definitive of that first phrase. We do not think the statute should be so read. Following the wording just above quoted, it contains a series of other descriptions of forbidden acts and activities, each being stated disjunctively, that is, tied to each other by the conjunction “ or ”. Those added prohibitions describe such conduct or acts as the following: keeping or occupying a room for recording bets; recording bets; receiving money wagers; permitting the use of a room for recording bets; becoming the custodian of money wagered; or aiding or assisting in any of the above listed acts. The statute, therefore, is much more than a statement that engaging in book-making ” is a misdemeanor, with particulars as to what constitutes “ bookmaking ”. It is, rather, a listing of a number of different kinds of acts or conduct, all of them related to book-making ”, but each of which is, separately, made a misdemeanor. Since such is the meaning of the statute, it is clear that the information here, which we analyze in.the next paragraph hereof, charges sixty different crimes.

The first count here charges a conspiracy continuing from 1930 up to 1950, to engage with others in book-making, in violation of section 986, the overt acts alleged being eighty-five in number and including the receipt, custody and payment of bets on various dates in 1948, 1949 and 1950. (Some of the acts described in counts 2 to 60 are the same ones which are alleged as overt acts in the first or conspiracy count.) Counts 2 to 60 are identical except for dates and each accuses defendant, on a certain date, of the crime of Bookmakiug, committed as follows: * * * engaged in bookmaking and made book upon the results of trials and contests of skill, speed and power of endurance of men and beasts, to wit, horse races, and received, forwarded and became the custodian and depositary for gain, hire and reward of $-, money bet and wagered by and for other persons, and aided, assisted and abetted in said acts.” In other words, each nonconspiracy or substantive count accuses defendant, on a specific separate date, with receiving, forwarding and being the custodian of, money wagered. The reference in each such count to bookmaking ” is, in a way, surplusage, since the remaining language alleges a complete crime under the statute. It follows that this information charges one conspiracy to violate, and fifty-nine different separate violations of section 986.

Besides arguing as above, defendant goes further and insists that, regardless of how many separate crimes his guilty plea covered, he could not be visited with punishment more severe than one year’s incarceration in the penitentiary, and one $500 fine. In substance, defendant is saying that, if section 279 of the Code of Criminal Procedure, allowing the joinder in one information of several crimes, and subdivision 4 of section 2190 of the Penal Law, permitting separate sentences for each such crime, are construed to permit a court of special sessions to impose, for a number of misdemeanors charged in the same information, successive sentences totaling more than one year and $500, then, according to defendant, those statutes are unconstitutional. For they violate, he says, not only section 2 of article I of the State Constitution, which declares the right to a jury trial, and section 6 of article I, which requires that infamous crimes be charged by indictment only, but also section 18 of article VI, which limits to offenses “ of the grade of misdemeanors ”, the jurisdiction of courts of special sessions. Defendant says that those provisions of our State Constitution mean that this New York City Court of Special Sessions, acting on an information rather than on an indictment, and affording no jury trial, could not impose, for a guilty plea or verdict on one information, a sentence more severe than the maximum assigned by law to a misdemeanor, that is, one year in a county jail or penitentiary and a $500 fine (Penal. Law, §§ 2, 29, 1937).

It is, of course, settled that those provisions of the New York Constitution (art. I, §§ 2, 6), which require indictment by a grand jury and give defendant a right to a trial by jury, do not apply to offenses for which the maximum punishment is no more than one year in a penitentiary plus a maximum $500 fine and which are triable, according to statute, by a court of special sessions (People v. Bellinger, 269 N. Y. 265, 270, 271). Therefore, if the statutes here being examined (Code Grim. Pro., § 279; Penal Law, § 2190) purported to authorize a trial on an information in a court of special sessions without a jury, of a criminal offense carrying heavier punishment than that assigned to misdemeanors, the statutes would to that extent be unconstitutional. But neither statute has any such result. Section 279 of the code allows, among other things, the joining in one information or indictment of two or more acts constituting a part of a common scheme or plan (as the information here alleges). Subdivision 4 of section 2190 of the Penal Law, added at the same time that section 279 of the code was amended to read as above, permits the imposition of separate and consecutive sentences on a person convicted of two or more offenses which constitute different crimes but have been set forth in separate counts of one indictment or information. Both statutes as so amended are constitutional (People ex rel. Pincus v. Adams, 274 N. Y. 447). They do not ‘ permit the imposition of a greater sentence for any crime ” (p. 457). Read together, they merely provide that a number of related offenses may be covered by the same indictment or information, and that for each such count on which a defendant is found guilty, he may receive a separate and cumulated sentence. The acts to which this defendant has here pleaded guilty could have been charged against him in sixty separate informations, and he could have received sixty separate, consecutive, sentences, each up to the maximum limit for a misdemeanor. We do not see how any right of his has been invaded, or how the constitutional jurisdiction of the Special Sessions Court is in any way enlarged by allowing all this to be done under one, rather than under sixty, informations.

The judgment should be affirmed.

Loitghran, Ch. J., Lewis, Conway, Dye, Fold and Froessel, JJ., concur.

Judgment affirmed.