author: Dye, J. Conway, J.,

text:
    Mamie L. Ferraiolo, Respondent, v. William O’Dwyer et al., as Members of the Board of Estimate of the City of New York, Constituting the Trustees of the New York City Employees’ Retirement System, Appellants.
    Argued January 15, 1951;
    decided April 12, 1951.

      John P. McGrath, Corporation Counsel (Helen B. Cassidy and Seymour B. Quel of counsel), for appellants.
    I. The retirement system is authorized under section B3-45.0 of the Administrative Code to offset against an accidental death pension all payments made by the city under a workmen’s compensation award. (Matter of Daley v. O’Dwyer, 298 N. Y. 890; Matter of Horan v. Wallander, 186 Misc. 40; Hodson v. New York City Employee’s Retirement System, 243 App. Div. 480; Weigold v. Weigold, 236 App. Div. 126; Monck v. Monck, 184 App. Div. 656; Zwingmann v. Zwingmann, 150 App. Div. 358; Matter of Dalton v. City of Yonkers, 262 App. Div. 321, 287 N. Y. 592.) II. The practical construction given to section B3-45.0 of the Administrative Code by the city retirement system and to section 85 of the Civil Service Law by the State retirement system has been to offset all benefits payable under workmen’s compensation. This interpretation is entitled to great weight. (Grimmer v. Tenement House Dept. of City of N. Y., 204 N. Y. 370; People ex rel. Moriarty v. Creelman, 206 N. Y. 570; Bullock v. Cooley, 225 N. Y. 566; Story v. Craig, 231 N. Y. 33; Matter of Kolb v. Holling, 285 N. Y. 104; Household Finance Corp. v. Goldring, 263 App. Div. 524, 289 N. Y. 574.)

      Samuel A. Bloom and Jeannette H. Harris for respondent.
    I. In enacting the New York City Employees’ Betirement Act (L. 1920, ch. 427), the Legislature clearly intended the offset of only such sums awarded petitioner-respondent as widow’s death benefits under the Workmen’s Compensation Law. (Matter of Rosenberg v. Board of Estimate of City of N. Y., 170 Misc. 800; Hetherington v. La Guardia, 186 Misc. 316, Hetherington v. O’Dwyer, 272 App. Div. 919; Eckert v. New Jersey State Highway Dept., 1 N. J. 483.) II. Had the Legislature intended that all payments of workmen’s compensation death benefits, whether to the widow, minor children and other dependents, be deducted from the widow’s pension under the Administrative Code, it would have said1 so. (Smith v. People, 47 N. Y. 330; Hough v. Light, 275 App. Div. 299; Szwarce v. Buenaventura, 301 N. Y. 558.) III. A construction given and followed by an administrative agency, predicated on decisions construing a different law, and motivated by self-profit, is not entitled to weight of judicial persuasion.
   Dye, J.

In this appeal by permission from an order of the Appellate Division, Supreme Court, First Department, unanimously annulling in part a determination of the board of estimate of the city of New York constituting the trustees of the New York City Employees’ Retirement System, we are called upon to review whether the appellant board correctly applied the pertinent provisions of the Administrative Code when in granting petitioner-respondent’s application for pension benefits in an accidental death case, it deducted therefrom as an offset the amounts paid and to be paid by the city as a self-insurer pursuant to an award of the Workmen’s Compensation Board made by reason of the same accidental death.

The circumstances giving rise to the controversy are not in dispute. The petitioner-respondent’s deceased husband was an employee of the city transit system and a member of the city employees’ retirement system. He met death under circumstances warranting payment of workmen’s compensation benefits and such awards were duly made by the Workmen’s Compensation Board to his widow, his daughter under the age of eighteen years and to his father, found to be dependent by reason of incapacity (Workmen’s Compensation Law, §§ 10, 16).

When the petitioner-respondent as a widow, made application to the city employees’ retirement system for accidental death benefits the board, by resolution, granted such application to the extent of refunding the accumulated salary contributions made by her husband in his lifetime amounting to $2,558.50, together with an annual pension during widowhood in the amount of $1,534.15 computed at “ one-half of the final compensation ” received by her husband at his death (Administrative Code, § B3-33.0) against which the board offset as a deduction the total of the amounts payable by the city under the compensation awards, to wit: $655.20 per annum during widowhood; $218.40 per annum for the infant daughter under eighteen years, and $546 during dependency of deceased’s father (Administrative Code, § B3-45.0).

The petitioner-respondent then instituted this proceeding under article 78 of the Civil Practice Act, to have such determination reviewed and for affirmative relief by way of reimbursement of the sums deducted and for an order directing payment of her pension in the future without such deduction, The Special Term and the Appellate Division were each of the view that the board erred in making an offset of the amounts payable on account of the dependents other than to the widow. A problem of statutory construction is thus presented.

We turn now to the applicable provisions of the Administrative Code, the pertinent parts of which are quoted for convenience :

“ § B3-33.0 Death benefits; accidental death benefits.— * * * Upon application by or on behalf of the dependents of such deceased member, such board shall grant a pension of one-half of the final compensation of such employee:

“1. To his widow, to continue during her widowhood; or

“2. If there be no widow, or if the widow dies or remarries before any child of such deceased member shall have attained the age of eighteen years, then to his child or children under such age * * * to continue as a joint and survivor pension of one-half of his final compensation until every such child dies or attains such age; or

3. If there be no widow or child under the age of eighteen years surviving such deceased member, then to his dependent father or mother * * * as such board in its discretion shall direct, to continue for life.”

“ § B3-45.0 Betieement allowances; eestbictions on.— a # *

“ b. * * * If an amount which is payable throughout a period under the provisions of the workmen’s compensation law be a percentage less than one hundred per cent of the amounts otherwise payable during the same period out of moneys provided or to be provided by the city under the provisions of this title on account of the same disability of the same person, there shall be paid during such period as it becomes due under the provisions of this title, in lieu of each amount otherwise payable, the percentage thereof which is the difference between such lesser per cent and one hundred per cent.” (Emphasis supplied.)

We have heretofore approved as a proper rule of construction that the phrase “ out of moneys provided or to be provided by the city * * * on account of the same disability of the same person ” (Administrative Code, § B3-45.0) was not limited to disability benefits payable to an injured employee during his lifetime, hut included accidental death benefits as well, from which it followed that an offset in full of a compensation award payable by the city to a widow was properly made against her accidental death pension benefit (Matter of Daley v. O’Dwyer, 274 App. Div. 938, affd. 298 N. Y. 890). To be sure, this case involves the offset of compensation award to dependents other than a widow but, even so, there is no substantial difference in principle and no different construction is warranted. For instance, had the deceased been incapacitated rather than killed as a result of the accident, it is clear beyond dispute that — regardless of the number, age or relationship of his depend-, ents — the benefit payable to him by the city would have been limited to the sum payable under the provisions of the Workmen’s Compensation Law when such sum equaled or exceeded the present value of all amounts otherwise payable by the city on account of the same disability (Administrative Code, § B3-45.0; Workmen’s Compensation Law, § 30) and when less would be limited, except for annuity, to three quarters of his final compensation (§ B3-44.0). The same policy is followed by the State in administering payments under the State Employees’ Retirement System, offsets of compensation awards being made against pensions but not against annuity benefits, which is but an application of the established policy and prohibition against dual payment of public funds (Civil Service Law, § 85, formerly § 67; Matter of Dalton v. City of Yonkers, 262 App. Div. 321, affd. 287 N. Y. 592; see, also, Matter of Svec v. City of New York, 251 App. Div. 758).

It should be noted that since October 1,1920, the effective date of the city employees’ retirement system (L. 1920, ch. 427; Greater New York Charter, §§ 1700-1725, now new Administrative Code, ch. 3, tit. B), workmen’s compensation awards have been deducted in full from accidental death pensions irrespective of the number of dependents surviving. While practical construction by an officer or agency charged with the administration of a statute, especially when followed by a long period of time, is entitled to great weight and may not be ignored (Household Finance Corp. v. Goldring, 263 App. Div. 524, affd. 289 N. Y. 574; Matter of Kolb v. Holling, 285 N. Y. 104), such an interpretation is not necessarily binding on the court but nonetheless constitutes an element to be considered (McKinney’s Cons. Laws of N. Y., Book 1, Statutes [1942 ed.], § 93). In the instant case it is also the construction dictated .by the language of the statute which not only fixes the formula for payment of an accidental death pension but specifically provides that payments shall be made “ Upon application by or on behalf of the dependents of such deceased member ” (§ B3-33.0, emphasis supplied), an unmistakable expression of legislative intent to include dependents other than the widow. To make a distinction in offset because the workmen’s compensation award includes one or more classes of beneficiaries along with the widow is neither logical nor sound and is surely in conflict with the clear limitation respecting the payment of city funds on account of the same disability of the same person ”.

The orders of the Appellate Division should be reversed and the petition dismissed, without costs.

Conway, J.,

(dissenting). This appeal presents a question as to the construction to be accorded to subdivision b of section B3-45.0 of the Administrative Code. If, as the majority opinion suggests, the purpose of that section is to prevent the payment by the city of more than one half of the deceased employee’s salary, irrespective of the number of the recipients of such payment and their relationship to the deceased, then there must be a reversal. On the other hand, if the purpose of that section, as we think more probable and more consonant with fairness and justice, is to prevent the employee (in a disability case) or any one of his dependents (in a death case) from receiving a double award — both under the pension law and also under the compensation law — then the result reached below is correct and must be affirmed.

In the case at bar, the widow is not claiming that she should receive a double award. Indeed, it has been settled by our decision in Matter of Daley v. O’Dwyer (298 N. Y. 890) that subdivision b of section B3-45.0 of the Administrative Code forbids the receipt by a dependent of such double award on account of the death of the same person. Here, however, all that the widow is claiming is that she should receive the full amount required to be paid under section B3-33.0 to her, as widow, as accidental death benefits under the pension system, without deduction of the additional amounts required to be paid under subdivision 4 of section 16 of the Workmen’s Compensation Law to the dependent child and the dependent father of the deceased employee. She is not seeking a double award; she is merely asking for the amount which the Legislature has directed to be paid to the surviving wife of a city employee who is accidentally killed in the performance of his duty.

Subdivision b of section B3-45.0 does not, in our judgment, prevent such payment. The section reads as follows: b. If an amount which is payable throughout a period under the provisions of the workmen’s compensation law equals or exceeds the amounts otherwise payable during the same period out of the moneys provided or to be provided by the city under the provisions of this title on account of the same disability of the same person, no payment shall be made to such person under the provisions of this title during such period nor thereafter, until the total amount of such omitted payments, together with the regular interest which they would have accumulated, equals the amount paid under the workmen’s compensation law, together with the regular interest which it would have accumulated. If an amount which is payable throughout a period under the provisions of the workmen’s compensation law be a percentage less than one hundred per cent of the amounts otherwise payable during the same period out of moneys provided or to be provided by the city under the provisions of this title on account of the same disability of the same person, there shall be paid during such period as it becomes due under the provisions of this title, in lieu of each amount otherwise payable, the percentage thereof which is the difference between such lesser per cent and one hundred per cent.”

The section was probably drafted with only the employee himself, disabled but alive, in mind, for the language used therein speaks of amounts * * * payable * * * on account of the same disability of the same person ” and states that 11 no payment shall be made to such person ”. Nevertheless, as noted, we held in the Daley case (supra) that disability ”, as used in subdivision b of section B3-45.0, must be taken to include death ”, in order to effectuate its purpose to prevent receipt of a double award by a single beneficiary.

Simply stated, we think the first sentence of the section, as applied to a death case, means this: If the amount payable to a beneficiary under the compensation law equals or exceeds the amount otherwise payable to that beneficiary under the pension law, no pension payments are to be made until the total of the omitted pension payments equals the amount paid under the compensation law. We think the second sentence of the section rr>3ans this: If the amount payable to a beneficiary under the compensation law is less than the amount otherwise payable to that beneficiary under the pension law, only so much of the pension payments are to be made which will be sufficient, when combined with the compensation award, to total the amount normally ipaid under the pension law. Thus, it seems to us that the evident purpose of the statute is twofold: (1) to make certain that the beneficiary receives a single full award, and as a corollary to that, (2) to make certain that the city, which provides the money for both compensation and pension payments, will not have to pay a double award to the same beneficiary on account of the same death. In other words, the section does not purport to set a maximum limit upon what the city is permitted to pay. It merely sets a limit upon the maximum amount any one beneficiary can receive.

Affirmance in the case at bar is completely in accord with the .language and intent of this section, for the petitioner widow will be receiving a single award under the pension law; she will receive nothing under the compensation law; and the city will not be making a double award to the same beneficiary on account of the same death. It is true that the city will be required to pay an additional amount to other beneficiaries (viz., the dependent child and the dependent father) under the compensation law and that the total amount thus paid will be greater than one half of the deceased’s final salary or wage, but such a result is not expressly forbidden by any provision of the Administrative Code, and we see no reason for reading such a prohibition into the code by judicial construction. If the total amount of money payable to the beneficiaries of a deceased employee were to be limited to one half of his final salary, it would have been a simple matter for the Legislature to make .a provision to that effect. However, it has not done so. Instead, all that it has done is to provide that no double award may be made to the same beneficiary on account of the same death.

The provisions of section 85 of the Civil Service Law differ materially from the provisions of subdivision b of section B3-45.0 of the Administrative Code, and it is not now necessary to determine what the result would be if the problem posed by the instant case were presented under the Civil Service Law provision. Suffice it to say that no case in this court has yet held that a widow is not entitled to full payment under the pension law, merely because other dependents of the deceased employee are entitled to payments under the compensation law. The case cited by the majority, Matter of Dalton v. City of Yonkers (262 App. Div. 321, affd. 287 N. Y. 592), was similar to Matter of Daley v. O’Dwyer (supra) in that it held that a single person could not receive a double award on account of the same death or disability.

We thus agree with the courts below that the payments to the dependent child and father of the deceased employee under the compensation law should not have been deducted from the payment which is required to be made to the widow alone under the pension law. The widow’s pension under section B3-33.0 of the code amounts to $1,534.15. If the compensation awards to the widow’s child and father-in-law ($218.40 and $546, respectively) are deducted therefrom, the widow will be receiving only approximately one half (viz., $769.75) of the amount which the' Legislature, in its wisdom, determined would be necessary for her support after the death of her husband.

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

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

Orders reversed, etc. [See 302 N. Y. 841.]


source: Caselaw Access Project

author: Desmond, J.

license: Public Domain

text:
    In the Matter of William C. Chatlos, Appellant, against Joseph D. McGoldrick, as State Rent Administrator, Respondent.
    Argued February 27, 1951;
    decided April 12, 1951.

      Robert S. Fougner and Osborne A. McKegney for appellant.
    I. Subdivision 1 of section 21 of the Bent and Eviction Begulations is invalid because it is in literal conflict with paragraph (a) of subdivision 1 of section 4 of the State Emergency Housing Bent Control Law. (Settle v. Van Evrea, 49 N. Y. 280; Town of Putnam Valley v. Slutzky, 283 N. Y. 334; F. T. B. Realty Corp. v. Goodman, 300 N. Y. 140, 746; Teeval Co. v. Stern, 301 N. Y. 346.) II. Subdivision 1 of section 21 of the regulations is invalid because it contravenes the intention of the Legislature.

      Nathaniel L. Goldstein, Attorney-General (Abe Wagman and Wendell P. Brown of counsel), for respondent.
    I, Subdivision 1 of section 21 of the regulations is in full accord with the literal language of paragraph (a) of subdivision 1 of section 4 of the statute. (United States v. Wallace & Tiernan Co., 336 U. S. 793; Teeval Co. v. Stern, 301 N. Y. 346; F. T. B. Realty Corp. v. Goodman, 300 N. Y. 140.) II. Subdivision 1 of section 21 of the regulations is designed to carry out the intent of the Legislature and to effectuate the purposes of the statute. (Matter of Kaplan v. McGoldrick, 198 Misc. 440; United States v. American Trucking Assns., 310 U. S. 534; Ozawa v. United States, 260 U. S. 178; Surace v. Danna, 248 N. Y. 18; City Bank Farmers’ Trust Co. v. New York Central R. R. Co., 253 N. Y. 49; People v. Ryan, 274 N. Y. 149.) III. The Administrator’s interpretation is, at the least, entitled to great weight. (Fawcus Mach. Co. v. United States, 282 U. S. 375; United States v. American Trucking Assns., 310 U. S. 534; Lightbody v. Russell, 293 N. Y. 492; Matter of Mounting & Finishing Co. v. McGoldrick, 294 N. Y. 104; New York Public Lib. v. City of New York, 275 App. Div. 307, 300 N. Y. 726.) IV. The Legislature has amended paragraph (a) of subdivision 1 of section 4 of the Emergency Housing Bent Control Law so as to clarify the intent and purpose of the language in the original section (L. 1951, ch. 36). This expression of legislative intent and purpose is entitled to great weight in resolving the issue of statutory construction. (United States v. American Trucking Assns., 310 U. S. 534; People ex rel. Westchester Fire Ins. Co. v. Davenport, 91 N. Y. 574; People ex rel. Mut. Life Ins. Co. v. Board of Supervisors, 16 N. Y. 424; Mosle v. Bidwell, 130 F. 334; First Nat. Bank v. Missouri, 263 U. S. 640.)
   Desmond, J.

This is an article 78 proceeding brought by a landlord to challenge the validity of subdivision 1 of section 21 of the regulations promulgated by the Temporary State Housing Bent Commission, pursuant to the 1950 State Emergency Housing Bent Control Law (L. 1950, ch. 250, § 4, subd. 1, par. [a]; McKinney’s Unconsol. Laws, § 8584, subd. 1, par. [a]). That new State rent control law says that maximum rents to be established by the State Bent Commission shall be the same as those fixed on March 1, 1950, pursuant to the Federal act or pursuant to certain local laws, but that if the Federal law and any applicable local law prescribed different maximum rents for the same property, the local law maximum rent as of March 1, 1950, shall be the maximum rent under the new State law. That, of course, at least seems to say that the new State maximum shall be the same as the local law maximum of 1950, even though that local law maximum be higher than the Federally mandated maximum rent as of the same date. The State Bent Commission, which was authorized by that 1950 State act to make regulations, promulgated a regulation (§ 21, subd. 1) which says that the maximum rent shall be the maximum Federal rent of March 1, 1950, unless a lower maximum was prescribed pursuant to a New York City local law, in which event the local law maximum, and not the Federal maximum, shall be the maximum rent under the State law. It so turned out, by reason of an unusual set of circumstances hereafter described, that, as to the particular apartment owned by petitioner and involved herein, the local law rent therefor as of March 1, 1950, was higher than the Federal maximum rent for the same apartment. The respondent State Bent Administrator, obeying the State Bent Commission’s regulation (§ 21, subd. 1) above referred to, fixed the rent therefor at the lower Federal maximum.

Petitioner then filed, with the State Rent Commission, a protest against the regulation (§ 21, suhd. 1, supra) on the ground that it was contrary to the express language of the State emergency rent act itself. That is, petitioner reads the statute as saying that, where the Federal rent and the local law rent are different, the latter shall be the State rent, while the regulation, as above pointed out, says that where the local law rent was lower than the Federal, then the former shall apply. The State Rent Commission rejected petitioner’s protest, the commission holding that its regulation carried out the actual meaning and intent of the statute. Petitioner thereupon brought this article 78 proceeding to review the Administrator’s determination, and, at Special Term the petition was denied without opinion. Appellate Division, First Department, unanimously affirmed, without opinion, but granted leave to petitioner to appeal to this court (several identical holdings had previously been made by Special Term Justices — see Matter of Kaplan v. McGoldrick, 198 Misc. 440; Matter of Rubin v. McGoldrick, 277 App. Div. 1024).

After a long period of Federal regulation of rents, the Federal Congress passed an act permitting any State, at its option, to take over rent control within its boundaries. Thereafter, the State of New York, by its new State rent law {supra) which was passed on March 29, 1950, and became law on May 1, 1950, took over the whole job of rent regulation in New York State. Paragraph (a) of subdivision 1 of section 4 of said new' State rent law is as follows: “At the time this act shall become effective, the commission shall establish maximum rents for housing accommodations which shall be the same as those prescribed on March first, nineteen hundred fifty, pursuant to the federal housing and rent act of nineteen hundred forty-seven, as amended, or local laws specified in chapter one of the laws of nineteen hundred fifty. Where there were different maximum rentals prescribed pursuant to such laws on March first, nineteen hundred fifty, the maximum rental established hereunder shall be the same as that prescribed pursuant to the local laws specified in chapter one of the laws of nineteen hundred fifty ”.

We must admit that the statute, taken at its face, says that, where the Federal maximum rent as of March 1, 1950, differs from the maximum rent fixed by a local law as of that same date, the latter shall prevail. The statute, unlike the regulation, does not say that where the Federal maximum and the local law maximum are different, the lower of those two shall prevail. However, the courts below in this case, and other lower courts in other cases, have held that the legislative intent was that the lower of those two rents should be the permissible maximum under the new State act. If that be correct, then the State Rent Commission’s regulation (§ 21, subd. 1), complained of here, is valid as expressing the actual intent of the Legislature.

One of the local laws referred to in paragraph (a) of subdivision 1 of section 4 of the State law was, of course, the so-called Sharkey Law, a New York City local law of which we have heard a great deal in the past (see F. T. B. Realty Corp. v. Goodman, 300 N. Y. 140, and Teeval Co. v. Stern, 301 N. Y. 346). There is no doubt, as is made plain in Teeval Co. v. Stern (supra, p. 365) that the main purpose of the Sharkey Law was to override and defeat ” the rent provisions of the Federal act. The Sharkey Law, in terms, froze rents in New York City at March 1,1949, rates and forbade the collection of any higher rent. We held that to be unconstitutional in F. T. B. Realty Corp. v. Goodman (supra) and, later, after the State Legislature attempted to validate the Sharkey Law, we held that so much of the Sharkey Law as undertook to forbid the collection of rent increases granted by the Federal authorities after March 1, 1949, was invalid as an interference with Federal control. The discussion of the Sharkey Law, in the Chief Judge’s opinion for this court, in Teeval Co. v. Stern (see pp. 362, 365) shows that the primary purpose of the Sharkey Law was to prevent the taking effect, in New York City, of any Federal increases granted after March 1, 1949. And, once we realize that such was the purpose of the Sharkey Law, we must agree with the courts below. The Legislature, in saying, in the new State act, that, when a Federal maximum rent as of March 1, 1950, differed from a local law rent as of the same date, the local rent should govern, was talking about the numerous cases where the Sharkey Law had tried to forbid Federal increases. In other words, the Legislature had in mind the usual and numerous cases where the Sharkey Law rent was lower and the Federal maximum higher, and the Legislature was not considering the isolated cases (of which this is one) where the converse was true. Incidentally, it should be noted at this point that the invalidation {supra) of the Sharkey Law by this court, has no effect on the present controversy. The new State act itself (§ 14, subd. 2) says that the local laws are referred to therein solely for purposes of identification, and that any invalidity of the local acts will have no effect on their use as points of reference.

The situation which brought about, as to this particular apartment, the peculiar result that the Sharkey Law rent as of March 1,1950, was higher, not lower, than the Federal maximum was this: the premises here involved was a so-called luxury apartment; paragraph (1) of subdivision (b) of section 204 of the Federal Housing and Bent Act of 1947 (U. S. Code [1946 ed., Supp. I], tit. 50, Appendix, § 1894) had authorized, as to such apartments, voluntary leases at rent not more than 15% above the previous maximum rent, and the Federal statute further said that any apartments that went under such voluntary leases should be automatically decontrolled after December 31, 1947; pursuant to that authorization this landlord voluntarily leased this apartment for a monthly rent of $207 but the tenant cancelled that lease before its expiration so that under the then Federal decontrol of the apartment, the landlord was in a position to, and did, validly make a new uncontrolled lease at $250 a month. Under the Federal Housing and Bent Act of 1948 (U. S. Code [1946 ed., Supp. II], tit. 50, Appendix, § 1894), it was provided that any such properties so leased should go back to control upon the termination of the voluntary lease, and so the lawful rent for this apartment under the Federal system continued at $250 until April 1,1949. Thus, the lawful rent was $250 on March 1, 1949, the freeze date under the Sharkey Law, but the Federal act which went into effect on April 1,1949, again recontrolled apartments of this type and provided in effect that they should go back under control as of April 1, 1949, at the rent fixed by the original voluntary lease which, in this instance, was $207. In other words, the Sharkey Law freeze date of March 1,1949, happened to be a date at which the valid rent of this apartment was $250, but a new Federal act which took effect the next month, sent that maximum rent back to $207. Accordingly, it came about that, as to this apartment, the Sharkey Law rent as of the critical date (March 1, 1950) was $250, whereas the Federal maximum was only $207.

It seems entirely clear that, although the Legislature did not say so in so many words, its use ,of the Sharkey Law maximum as a point of reference was solely occasioned by the legislative belief, which was correct as to the vast majority of cases, that Sharkey Law rents, when different from Federal maxima, were lower than the latter.

Of course, the argument of appellant here is that we must follow the literal language of this statute. To do so here would, however, be to thwart the obvious legislative intent (see subdivision 1 of section 13-a of the 1950 State act, in which the Legislature says in effect that it is acting to prevent tenants from being subjected to the increases ordered by Federal law).

After this case was decided by the Appellate Division, the 1951 Legislature took the matter in hand and proceeded to make a formal declaration that the Legislature had never intended that, when Sharkey Law rents were higher, they should prevail. When the Legislature reconvened in January, 1951, it found before it a report by the State Temporary Commission to Study Rents, etc. (a survey and recommending body which is different from the State Rent Commission which fixes rents). That report pointed out to the Legislature that the 1950 State act had failed clearly to express the legislative intent that the Sharkey Law rent should govern only when it was lower. The commission reminded the Legislature that the Governor, in signing the 1950 act, had stated that the bill fixed the rents at either the Federal or local level of March 1, 1950, “ whichever is lower ”. The State Temporary Commission called to the Legislature’s attention that the Appellate Division had sustained its view as to what the 1950 law meant, and that the Attorney-General had given an opinion to the same effect. The commission then recommended that the matter be clarified by the enactment of another statute. The new statute, chapter 36 of the Laws of 1951, reads as follows: “ Legislative intent. It is the intent of the legislature by this act to clarify the provisions of chapter two hundred fifty of the laws of nineteen hundred fifty. It is not intended hereby to make any substantive change in such law, nor is any diminution, impairment or increase of rights or liabilities intended hereby.”

That enactment was approved by the Senate unanimously, and in the Assembly, by a vote of 143 to 1. As the Attorney-G-eneral points out in a supplemental brief here, about 80% of the members of the 1951 Legislature were in the 1950 Legislature also. It is, of course, true that the Legislature cannot come back a year later and by a new law, control the interpretation of the law it passed a year earlier. However, we held, almost a century ago, that, when the Legislature does tell us what it meant by a previous act, its subsequent statement of earlier intent is entitled to very great weight (see People ex rel. Mut. Life Ins. Co. v. Board of Supervisors, 16 N. Y. 424, 435, 436). Judge Shankland’s opinion in that case says that, while the Legislature’s statutory declaration as to what was its true intent is not binding in the courts, it “ is entitled to respect as a legislative construction of an ambiguous phraseology.”

We conclude, on the whole picture, that the 1950 Legislature plainly meant that where the Federal and local maxima were different, the lower should prevail. Eules. of construction are not entirely satisfactory guides in such matters, but a good approach is suggested by cases like Holy Trinity Church v. United States (143 U. S. 457, 472) where, affirming the power of courts so to construe statutes as to rule out absurd and unexpected results, the Supreme Court, in conclusion, said: “ It is the duty of the courts, under those circumstances, to say that, however broad the language of the statute may be, the act, although within the letter, is not within the intention of the legislature, and therefore cannot be within the statute ” (see Lake Shore & M. S. Ry. Co. v. Roach, 80 N. Y. 339, 344; Matter of Meyer, 209 N. Y. 386, 389).

The order should be affirmed, with costs.

Lottghran, Ch. J., Lewis, Conway, Dye, Fuld and Froessel, JJ., concur.

Order affirmed.


author: Per Curiam.

text:
    Seymour Friend, Respondent, v. Morris D. Fishman, Inc., Appellant.
    Argued March 5, 1951;
    decided April 12, 1951.

      S. Sawyer Le Vay for appellant.
    The jury obviously rendered a compromise verdict which the court should have set aside on appellant’s motion. (Angresani v. Tozzi, 217 App. Div. 642, 245 N. Y. 558; Blackwell v. Glidden Co., 208 App. Div. 317, 239 N. Y. 545; Clark v. Foreign Products Co., 194 App. Div. 284; Ferguson v. Chuck, 194 App. Div. 583; Hatch v. Attrill, 118 N. Y. 383; Breymann v. Morris & Cummings Dredging Co., 202 App. Div. 464; Delisky v. Leonard, 189 App. Div. 623.)

      Milton M. Mokotoff for respondent.
    The jury’s verdict was not a compromise. (Hollwedel v. Duffy-Mott Co., 263 N. Y. 95; McClelland v. Climax Hosiery Mills, 252 N. Y. 347; Davis v. Dodge, 126 App. Div. 469; Koehler v. Adler, 78 N. Y. 287; Poel v. Brunswick-Balke-Collender Co., 159 App. Div. 365.)
   Per Curiam.

The court explicitly and without objection instructed the jurors that, if they found that plaintiff and defendant had entered into a contract for employment, they were under the necessity of returning a verdict for $3,360 — and that was a proper charge, since there was nothing to show that plaintiff was entitled to a penny less than that amount as damages. The ensuing verdict for the lesser sum of $2,400 was a compromise, rendered in disregard of both evidence and charge and may not stand. (See, e.g., Angresani v. Tozzi, 245 N. Y. 558, affg. 217 App. Div. 642; Blackwell v. Glidden Co., 239 N. Y. 545, affg. 208 App. Div. 317; Hatch v. Attrill, 118 N. Y. 383, 389; Van Der Harst v. Koenig, 249 App. Div. 235, 236.)

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

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

Judgments reversed, etc.


author:
Desmond, J.
      Froesser, J. Fúrd, J.

text:
    John Thallon & Co. Inc., Respondent, v. Edsil Trading Corp., Appellant.
    Argued January 3, 1951;
    decided April 12, 1951.

      Bruce Bromley, Bertram Sommer and Maurice Rosenberg for appellant.
    I. The oral contract sued upon is unenforcible under the Statute of Frauds. (Shindler v. Houston, 1 N. Y. 261.) II. The buyer’s part performance must be solely referable to the claimed oral contract. (Organ v. Stewart, 60 N. Y. 413; Samuel & Sons, Inc., v. Cutler, 185 N. Y. S. 368; Brister & Koester Lbr. Corp. v. American Lbr. Corp., 356 Pa. 33; Tanner v. Childers, 160 P. 2d 965 [Utah]; Howland v. Iron Fireman Mfg. Co., 213 P. 2d. 177 [Ore.]; Golden Eagle Milling Co. v. Old Homestead Bakery, 211 P, 56 [Cal.].) III. The buyer’s actions must point solely to his affirmation and performance of the claimed oral contract. (Howland v. Iron Fireman Mfg. Co., 215 P. 2d 380 [Ore.].) IV. The record herein establishes beyond doubt that defendant’s receipt and payment were neither on account of the claimed oral contract nor in affirmation of it. (Golden Eagle Milling Co. v. Old Homestead Bakery, 211 P. 56 [Cal.]; Gorden v. Witty, 198 App. Div. 333; Young v. Ingalsbe, 208 N. Y. 503.) V. Assuming the parties entered into an oral contract prior to making the written agreements in evidence, the paroi evidence rule forbids enforcing it. (Fogelson v. Rackfay Constr. Co., 300 N. Y. 334; William H. Waters, Inc., v. March, 240 App. Div. 120; Lee v. Industrial Laundry Mach. Co., 261 App. Div. 741; Higgs v. de Maziroff, 263 N. Y. 473; Mitchill v. Lath, 247 N. Y. 377; Engelhorn v. Reitlinger, 122 N. Y. 76.)

      Myron Kommel for respondent.
    I. The Statute of Frauds does not avail defendant. (Matter of Exeter Mfg. Co. [Marrus], 254 App. Div. 496; Widmeyer v. Crane, 121 Misc. 309; Gorden v. Witty, 198 App. Div. 333; Hunter v. Wetsell, 84 N. Y. 549; Murphy v. Chichetto, 79 N. E. 2d 898 [Mass.]; Segall v. Finlay, 245 N. Y. 61; Jones v. Reynolds, 120 N. Y. 213; Murray v. Cunard S. S. Co., 235 N. Y. 162; Matter of Japan Cotton Trading Co. v. Farber, 233 App. Div. 354.) II. The paroi evidence rule was not violated. (Seltz v. Brewers’ Refrig. Mach. Co., 141 U. S. 510; Friedman & Co. v. Newman, 255 N. Y. 340.)
   Desmond, J.

The question here is: did acceptance and receipt of, and payment for, part of the. goods covered by the oral contract of sale, make that sale enforcible under the Statute of Frauds (Personal Property Law, § 85), when the buyer (defendant) had declared before such acceptance and payment that it would not take the balance of the merchandise? Our answer is in the affirmative. Agreeing with the Trial Term and the Appellate Division, we hold that defendant’s unilateral denunciation, or anticipatory breach, as to one part of the goods, could not forestall or destroy the effect assigned by the statute itself to what defendant later did: that is, receive and pay for part of the lard which was the subject matter of the single oral agreement of purchase and sale. The Statute of Frauds says that such a contract shall not be enforcible “ unless the buyer shall accept part of the goods * * * so contracted to be sold * * * and actually receive the same, or give something * * * in part payment ”. We know of no authority or justification for the courts adding another condition: that partial acceptance or partial payment will fail to accomplish enforcibility if, before accepting or paying, the buyer announces that he will take and pay for only the part which he does later accept. Here the buyer’s acts, of taking and paying, produced, of and by themselves, the result mandated by the statute. Its previous declaration (that it would not take the rest) was of no consequence except as proof of an anticipatory breach.

The present suit was brought to recover damages for that anticipatory breach. Plaintiff alleged an oral agreement by defendant to buy 440,000 pounds of lard, a taking of, and payment for, 240,000 pounds thereof, and a breach as to the balance. Defendant, besides pleading the Statute of Frauds as a defense, pleaded, and testified to, an entirely different kind of transaction whereby, according to defendant’s version it had agreed to (and did) take and pay for not 440,000, but 240,000 pounds only. But that question of fact, as to what the parties did agree to, was settled by the findings of the Trial Justice (the parties waived a jury), and the affirmance by the Appellate Division, and it was the only dispute of fact in the case. The parties agreed on the trial that 240,000 pounds had been deliberately taken and paid for, so there was no issue as to that. And there is no problem here (such as in many of the reported cases, see Burns v. McCormick, 233 N. Y. 230, 234), as to whether the partial performance was solely and unequivocally referable ” to the contract found by the trial court to have been made, since no one here claimed that there was more than one contract or deal between the parties, or that the sole agreement between them had been modified or cancelled by them. So we have a contract for 440,000 pounds, and delivery, acceptance and payment as to 240,000 pounds thereof. Inexorably, the statute creates the legal result: enforcibility of a treaty which, though not illegal (Crane v. Powell, 139 N. Y. 379, 384), would, absent such part performance, have gone unenforced for lack of a writing.

There are many decisions of this court which say, in one form or another that, for enforcibility of a contract to sell goods worth more than $50, there must be either a writing or acceptance and receipt of part of the goods, or part payment of the purchase money. In the first volume of our reports is Shindler v. Houston (1 N. Y. 261) where each of three Judges expressed the same thought, and each with simple clarity. Judge Bronson wrote (p. 266): “A writing must be made, part of the purchase money must be paid, or the buyer must accept and receive part of the goods.” Judge Wright’s words were (p. 267): “ There being no note or memorandum made in writing, of the contract or earnest paid, this is a case within the statute of frauds, unless there was an acceptance and receipt of the whole or a part of the property by the buyer.” Judge Gardiner agreed (p. 263) that the statute voided the contract “ unless the buyer ‘ accepted and received ’ the whole or a part of the property sold.” Other clear and unequivocal statements of the same rule are found in Brabin v. Hyde (32 N. Y. 519, 522); Rodgers v. Phillips (40 N. Y. 519, 523, 524); Brand v. Focht (3 Keyes 409, 410); Marsh v. Rouse (44 N. Y. 643, 647); Stone v. Browning (51 N. Y. 211, 215); Van Woert v. Albany & Susquehanna R. R. Co. (67 N. Y. 538, 541) and Young v. Ingalsbe (208 N. Y. 503, 506), (and see Wood on Statute of Frauds, § 320).

The factual dispute (settled below) as to whether defendant agreed to buy 440,000 or 240,000 pounds, must not be confused with the question of law as to whether defendant’s conceded taking of 240,000 pounds made the whole contract enforcible. “It is quite true * * * that the receipt and acceptance by the vendee under a verbal agreement, otherwise void by the statute of frauds, may be complete, although the terms of the contract are in dispute. ¡Receipt and acceptance by some unequivocal act, sufficiently proven to have taken place under some contract of sale, is sufficient to take the case out of the prohibition of the statute, leaving the jury to ascertain and find from the testimony what terms of sale were actually agreed on. * * * ‘ The statute does not mean that the thing which is to dispense with the writing is to take the place of all the terms of the contract, but that the acceptance is to establish the broad fact of the relation of vendor and vendee ’ ” (Hinchman v. Lincoln, 124 U. S. 38, 54-55, and see, to the same effect, Wood on Statute of Frauds, § 334, and cases there cited).

We find no New York case exactly in point here, except Brock v. Knower (37 Hun 609) decided by the old General Term, Fifth Department, in 1885. There the defendant vendor, delivering part of the merchandise claimed by plaintiff to be covered by an oral sale contract, sent, simultaneously, a letter which the jury construed as an announcement that the rest of the goods would not be made available except at a higher price. Plaintiff, considering this to be a part delivery, and an anticipatory breach as to the balance, sued for damages, and won. The General Term held (p. 613): The evidence was sufficient to present the question of fact whether the delivery made was pursuant to and in part performance of the agreement of which that to sell the five cases was a part, and under circumstances which rendered the receipt and acceptance of the three pieces effectual to validate the agreement.” We do find a statement (by way of dictum) in Gorden v. Witty (198 App. Div. 333, 336) to the effect that part performance, to make an oral contract enforcible, must be “ prior to its revocation ” (see similar language in Adams v. King, 68 Okla. 190, 192) but, to be correct at all, that must mean a mutually agreed upon cancellation. No unilateral, self-serving “ revocation ”, could be sufficient to destroy the statutory effect of a partial performance.

Perhaps the reason why none of the numerous Statute of Frauds decisions in this State give direct answer to the contention here made by defendant, is that, from earliest times, in New York, it has been held that acceptance at any time, of part of the goods, takes the transaction out of the statute (McKnight v. Dunlop, 5 N. Y. 537, 542). Of the decisions from other jurisdictions cited in Judge Fuld’s opinion, no single one upholds appellant’s assertion here that its prior announcement of intention not to perform the whole agreement rendered ineffectual its subsequent acceptance of part of the goods. In Brister & Koester Lbr. Corp. v. American Lbr. Corp. (356 Pa. 33); Golden Eagle Milling Co. v. Old Homestead Bakery (59 Cal. App. 541) and Howland v. Iron Fireman Mfg. Co. (188 Ore. 230) the controversy in each instance was as to whether the acceptance was under the oral arrangement sued upon, or under an entirely different and separate agreement described in the testimony; in Atherton v. Newhall (123 Mass. 141) the undelivered part was destroyed by fire while in the vendor’s possession, before the vendee took delivery of the other part. The sole support we have found in the books for the proposition advanced by appellant is a statement in Williston on Sales (Vol. 1, § 94, p. 236), that the statute is not satisfied if the buyer when taking part declines to take more ”. But the only eases cited by Professor Williston for that supposed rule are Atherton v. Newhall (supra) obviously a decision made on its own special facts; and Pratt v. Chase (40 Me. 269) and Dixon v. Yates (5 B. So Ad. 313) neither of which latter two cases deals in any way with the Statute of Frauds. With the authorities as they are, we would, by reversing here, be adding a new, gratuitous and unnecessary exception to the plain language of the statute.

The judgment should be affirmed, with costs.

Froesser, J.

(concurring). The courts below have found that defendant agreed to purchase from plaintiff 440,000 pounds of lard. This disposes of the farmer’s contention that it agreed to purchase only 240,000 pounds of lard.

Defendant had signed two written confirmation orders for 240,000 pounds, retained the third confirmation order for the last 200,000 pounds signed by plaintiff, and exhibited to plaintiff’s representatives a written application for a letter of credit which “ covered 440,000 pounds of lard as one contract.” Thereafter, when the price of lard dropped substantially, and discussions between the parties ensued, defendant’s attorney informed plaintiff’s representative that unless he was given a release for this 200,000 pounds he was going to advise [his client] not to accept any part of the 440,000 pounds.” He was told that plaintiff couldn’t under any circumstances allow any such cancellations, and that [plaintiff] would certainly not sign any release of any nature.” Notwithstanding the foregoing, defendant thereupon accepted, received and paid for 240,000 pounds of lard, and the only agreement to which this payment could have been referable is the one which the trial court found was made.

Had defendant refused to take any of the lard, o's its lawyer threatened, plaintiff would have had no case; defendant having accepted, received and paid for over half the quantity of lard which it agreed to purchase from plaintiff, the trial court was warranted in finding that defendant had breached or “ welshed ” on the agreement to purchase 440,000 pounds of lard. If a “ buyer shall accept part of the goods * * * contracted to be sold * * * and actually receive the same, or give something * * * in part payment ”, as did defendant under the circumstances here disclosed, and can nevertheless escape liability, section 85 of the Personal Property Law would be meaningless.

Inasmuch as the Appellate Division has unanimously affirmed the trial court, we have no alternative but to affirm. I concur in Judge Desmond’s opinion for affirmance.

Fúrd, J.

(dissenting). The court’s opinion establishes — what no one disputes — that acceptance and receipt of part of the goods orally contracted to be sold satisfies the Statute of Frauds. It has, however, failed to show how acceptance and receipt of goods may be considered a part ”, and only a “ part ”, of the larger quantity if the buyer has declared, prior to their receipt, that that is all ” that he is going to take. A brief statement of the facts illumines the problem and demonstrates that the oral agreement remained unenforcible.

On April 10,1947, plaintiff and defendant entered into an oral agreement for the sale of lard; plaintiff claims that the quantity ogre? 1 upon was 440,000 pounds, defendant, that it was 240,000 poun Is. Though lard was selling at thirty-three cents a pound when the arrangement was made, the price, it was stipulated, was to be the market quotation on the day that the buyer ordered any designated portion of the total. On April 11th, the buyer concededly instructed the seller to cover 100,000 pounds of the order at the prevailing rate of thirty cents a pound and, on April 16th, an additional 140,000 pounds at twenty-seven cents a pound. Separate confirmations, reflecting each of those transactions, were signed by the buyer on April 16th, and, on that same day, according to the seller, the buyer orally ordered the remaining 200,000 pounds. A further confirmation to cover that order was sent by the seller to the buyer, but the latter never signed it. Accordingly, the signed documents refer only to agreements for the sale of 240,000 pounds, and, concededly, they do not constitute an effective memorandum as to any quantity beyond that amount.

During the ensuing weeks, the price of lard dropped, and on April 30th the buyer announced — and this is the testimony of the seller — that it would not take more than 240,000 pounds, the quantity for which it had signed confirmations. The seller’s attempts to persuade the buyer to stand by the alleged oral agreement and accept 440,000 pounds failed, and, by May 10th, the seller acknowledged that it had abandoned all hope of inducing the buyer to go through with such an agreement and concluded that the buyer’s disclaimer or revocation was final ”. When the date specified in the documents for delivery of the merchandise — May 18th or May 19th — arrived, the seller delivered and the buyer accepted and received 240,000 pounds and paid for them.

It is solely because of that act that the buyer has been held in damages for repudiating his obligation ” to accept and pay for the balance of the goods. What, though, was the buyer to do ? It had signed memoranda, in the form of written confirmations, covering 240,000 pounds, and, when the delivery date arrived, it received and paid for that amount. Had the buyer not done so, the seller could have demanded and received damages for the buyer’s default as to that quantity. Certainly, the mere circumstance that the buyer took 240,000 pounds, and thereby did only that which it was under a legal duty to do, should not be deemed a basis for subjecting it to heavier damages than would have been possible if it had actually breached its conceded and never disputed obligation and taken no lard whatsoever. The illogic of the court’s contrary conclusion is evident: a memorandum of one agreement is permitted to serve as voucher for an entirely different agreement because the bargain embodied in the writing is performed according to its terms; a memorandum for 240,000 pounds becomes a lever for collecting damages for breach of a 440,000 pound contract.

It is no answer to say as does a majority of the court, that the buyer’s complaint is foreclosed because the trial judge found that the parties entered into an oral agreement for 440,000 pounds and disbelieved the buyer’s testimony to the contrary. It is precisely against that risk of disbelief that the Statute of Frauds is directed.

The statute, insofar as here pertinent, provides that a party who would enforce an oral agreement for the sale of goods worth $50 or more must prove that the buyer accepted “part of the goods * * * so contracted to be sold ” and actually received them or gave “ something * * * in part payment ” (Personal Property Law, § 85). Absent one of the validating acts specified, in other words, unless and until the statute has been satisfied in one of the ways enumerated, the oral agreement is unenforcible and “ the defendant may withdraw without liability. ’ ’ (1 Williston on Sales [Rev. ed., 1948], § 73, p. 199.)

Dispute early arose as to the precise nature of the requisite acts of part performance generally, and, more than a century ago, this court laid down the rule that the statute ‘ is not satisfied with any thing but unequivocal acts of the parties ” (emphasis supplied). (Shindler v. Houston, 1 N. Y. 261, 269.) That pronouncement remains our guide, whether there is involved the sale of real or personal property. (See Roberts v. Fulmer, 301 N. Y. 277, 281; Maher v. Randolph, 275 N. Y. 80, 84; Burns v. McCormick, 233 N. Y. 230, 234; Woolley v. Stewart, 222 N. Y. 347, 351; Young v. Ingalsbe, 208 N. Y. 503, 506.) The statute’s underlying purpose is to avoid the “ peril of perjury and error * * * latent in the spoken promise ” (Burns v. McCormick, supra, 233 N. Y. 230, 234; see, also, Maher v. Randolph, supra, 275 N. Y. 80, 84), and that purpose can be effectuated only if the evidentiary acts relied upon are mutually “ confirmatory ” of the oral contract sought to be validated, and are done ‘1 upon the strength of the agreement ” (Young v. Ingalsbe, supra, 208 N. Y. 503, 506) and “ under the contract and prior to its revocation.” (Gorden v. Witty, 198 App. Div. 333, 336; see, also, Good v. Curtiss, 31 How. Prac. 4, 11.) Were the rule otherwise, either party would be able to “ create the evidence * * * [to] prove the unwritten contract as against the other.” (Young v. Ingalsbe, supra, 208 N. Y. 503, 507.)

In the light of these principles, “it is essential in order to make acceptance and receipt of part suffice, that the part be accepted and received as part and as only a part of the goods.” (1 Williston on Sales, op cit., § 94, pp. 235-236.) If, when the purchaser receives some goods from the seller, he announces that that is “ all ” that he is going to take, he is not accepting and receiving those goods as “ part ” of any larger quantity. And what reason and logic suggest is confirmed by decisions throughout the country and by statements of outstanding authorities; not only must it be shown that the acceptance and receipt are of “ part ” of the goods contracted to be sold, but it must also appear that the buyer ‘ ‘ acknowledged the existence of the alleged contract and that what was done * * * was done solely with a view to its performance.” (Howland v. Iron Fireman Mfg. Co., 188 Ore. 230, 323; see, also, Golden Eagle Milling Co. v. Old Homestead Bakery, 59 Cal. App. 541; Atherton v. Newhall, 123 Mass. 141; Brister & Koester Lbr. Corp. v. American Lbr. Corp., 356 Pa. 33; 1 Williston on Sales, op. cit., § 94, pp. 235-236; 1 Reed, Statute of Frauds, § 261, pp; 403-404.)

Williston has in so many words declared that, “ if the buyer when taking part declines to take more, the statute is not satisfied” (1 Williston on Sales, op cit., § 94, p. 236), and another commentator expressing the same thought, has stated that “ The acceptance must be with the intention to perform the whole contract ”. (1 Reed, Statute of Frauds, op. cit., § 261, p. 404.) The courts, too, have laid stress on the dual requirement that the receipt be of “ part ” — and only of “ part ” — and that it bespeak a willingness to perform the alleged oral agreement in full. The rule is well stated in the recent case of Howland v. Iron Fireman Mfg. Co. (supra, 188 Ore. 230), where the Supreme Court of Oregon wrote (pp. 322-323): “ The authorities establish the rules that when a party seeks to enforce an oral contract for the sale of goods he must show by a preponderance of the evidence that there was delivery, acceptance, and actual receipt of some part of the goods, or that something was given in earnest to bind the bargain or in part payment. The party relying upon the oral contract must further show that the other party, whether buyer or seller, in the delivery or in the acceptance and receipt * * * acted with reference to and in recognition of the existence of the contract on which action was brbught. The evidence must show that the party to be charged, so dealt with the property as to prove that he acknowledged the existence of the alleged contract and that what was done relative to delivery, acceptance, receipt, etc., was done solely with a view to its performance.” (Emphasis supplied.) The Pennsylvania case of Brister & Koester (supra, 356 Pa. 33), is equally plain. The buyer had accepted delivery of two carloads of lumber after he had disavowed the oral agreement. In holding that such acceptance and receipt did not satisfy the statute, the court said that the goods so accepted must be' a part, and only a part, of those embraced by the paroi contract: Williston, Sales, p. 159. Delivery must be made pursuant to the asserted contract and accepted as being such ” (p. 41). And the Massachusetts Supreme Court, in the Atherton case (supra, 123 Mass. 141), expressly held that acceptance and receipt did not satisfy the statute where the buyer had informed the seller that he was not going to take any more goods than those delivered and would be responsible only for the' part received ” (pp. 142-143): “ It is unnecessary to consider whether there was a sufficient delivery to complete the sale, because it is quite clear, upon the authorities, that there was no such acceptance and receipt of part of the goods as would satisfy the statute of frauds. * * The acceptance by the buyer * * * of the part brought by the expressman, was not a sufficient acceptance to take the sale of the whole out of the statute, because it appears that it was not with an intention to perform the whole contract and to assert the buyer’s ownership under it, but, on the contrary, that he immediately informed the seller’s clerk that he would be responsible only for the part received. Townsend v. Hargraves, 118 Mass. 325, 333. Remick v. Sandford, 120 Mass. 309.” The added circumstance in the Atherton case that the balance of the goods had previously been destroyed by fire — claimed by the majority to account for the result in that case (opinion, p. 395) — could not possibly have been of any consequence in deciding whether the Statute of Frauds had been satisfied and could not possibly have influenced the court in reaching its decision. The question as to who was to bear the risk of loss is clearly not dependent on whether the agreement was oral or written and is entirely distinct from the question as to the character and sufficiency of acceptance and receipt as an effective substitute for a writing under the statute. (See, e.g., 2 Corbin on Contracts, § 484, p. 647.) Indeed, the Massachusetts court, in a case decided but a short time before the Atherton decision — and cited approvingly in that opinion — explicitly ruled that the requirement of the statute was met by acceptance and receipt of part of the goods even though the rest had theretofore been destroyed. (See Townsend v. Hargraves, 118 Mass. 325.) As a reading of the two cases makes evident, the distinguishing factor — present in Atherton, absent in Townsend — was the buyer’s declaration that he would not be responsible for any quantity greater than that already received. And, beyond that, in further refutation of the suggested distinction, the Atherton case has been cited as authority for the proposition here advanced by Reed (Statute of Frauds, op. cit., § 261, p. 404, fn. [n]), by Smith (Law of Frauds, p. 803) and by Williston (on Sales, op cit., § 94, p. 236, fn. 2).

The rule of the foregoing decisions was actually recognized in Brock v. Knower (37 Hun 609), the very case on which the majority opinion relies (supra, p. 394). There, a letter containing an alleged repudiation was — unlike the buyer’s disclaimer in this case — equivocal. The General Term simply held (p. 613) that under the circumstances the trial judge had properly left to the jury the question as to whether the letter “ amounted to a repudiation ” of the agreement sued upon and “was so understood ” by the parties (Brock Record on Appeal, fol. 96).

The protection of the Statute of Frauds should not be cut down or whittled away by enlarging its exceptions beyond their clear import. Where the buyer simply accepts and receives goods sent to him by the seller, evidence is at hand for concluding that they constitute a “ part ” of a larger quantity covered by the oral agreement relied upon. However, the probative value of such evidence of acceptance and receipt is nullified when, before or at the time the goods are delivered, the buyer actually asserts that the quantity received is “all” that he is going to take. That is this case, and, accordingly, the court’s decision — based as it is solely upon the trial judge’s finding that the agreement was for 440,000 pounds — will not stand analysis. Where seller and buyer give discrepant testimony as to the quantity covered by an oral agreement two questions are presented; (1) what amount did the parties agree upon and (2) was there such acceptance and receipt of the goods as to satisfy the statute? A finding that the parties agreed upon 440,000 pounds is manifestly neither the equivalent of, nor a substitute for, a finding, equally vital and significant, that the goods delivered were accepted and received as “ part ”, and only as “ part ”, of the larger quantity, in recognition of the existence of the 440,000 pound agreement and with a view to its complete performance. The trial judge did not even pretend to make a finding to that effect, and, indeed, he could not properly have done so, for, as we have already seen, the evidence was indisputably all the other way. Since, therefore, the record establishes, as matter of law and without contradiction, that the 240,000 pounds were not accepted as “ part ” of any larger quantity or as confirmatory of the contract asserted by the seller, the Statute of Frauds was not satisfied and the oral agreement sued upon remained unenforcible.

The judgments should be reversed and the complaint dismissed.

Conway, Dye and Froessel, JJ., concur in opinion by Desmond, J.; Conway, Desmond and Dye, JJ., concur in separate opinion by Froessel, J.; Fuld, J., dissents and votes for reversal and dismissal of the complaint in an opinion in which Loughran, Ch. J., and Lewis, J., concur.

Judgment affirmed.

       The court acknowledges as much when it wains that “ The factual dispute (settled below) as to whether defendant agreed to buy .440,000 or 240,000 pounds, must not be confused with the question of law ” as to the effect of the buyer’s act (supra, p. 394).


author: Dye, J.

text:
    The People of the State of New York ex rel. Frederick A. Hofsaes, Respondent, against Warden of the City Prison, Defendant. The People of the State of New York, Appellant.
    Argued January 18, 1951;
    decided April 12, 1951.

      Miles F. McDonald, District Attorney (Aaron E. Koota, Julius Helfand and Joseph P. Eoey of counsel), for appellant.
    I. Relator’s privilege against self incrimination existed neither on October 6, 1950, the occasion of his first appearance before the Grand Jury, nor on October 16th, which was but a continuance of the October 6th hearing. (N. Y. Const., art. I, § 6; Code Crim. Pro., § 10; People v. Cassidy, 213 N. Y. 388; Matter of Grae, 282 N. Y. 428; Palko v. Connecticut, 302 U. S. 319; People ex rel. Coyle v. Truesdell, 259 App. Div. 282; People ex rel. Hackley v. Kelly, 24 N. Y. 74; Mason v. United States, 244 U. S. 362; People ex rel. Lewisohn v. O’Brien, 176 N. Y. 253;
      Brown v. Walker, 161 U. S. 591; Matter of Seymour v. Larkin. 254 App. Div. 215; People v. Reiss, 255 App. Div. 509, 280 N. Y. 539; Matter of Doyle, 257 N. Y. 244.) II. The privilege against self incrimination did not exist on October 16th even assuming arguendo that the Grand Jury proceeding on that day was new and independent of that of October 6th. (People v. Rosenheimer, 209 N. Y. 115; People v. Cassidy, 213 N. Y. 388; People v. Ferola, 215 N. Y. 285; People ex rel. Lewisohn v. O’Brien, 176 N. Y. 253; People v. Defore, 242 N. Y. 13; Smith v. United States, 337 U. S. 137; Matter of Grae, 282 N. Y. 428.) III. The conduct of relator, in refusing to answer, was deliberate and constituted clear warrant for the finding of contempt. (People ex rel. Lewisohn v. Court of General Sessions, 96 App. Div. 201, 179 N. Y. 594.)

      William W. Kleinman and Mortimer Sattler for respondent.
    I. Respondent had the right to withdraw his waiver and assert his constitutional privilege against self incrimination, and, if compelled to testify, to be given immunity. (Siklek v. Comm., 33 Va. 789; People ex rel. Taylor v. Forbes, 143 N. Y. 219; People v. Seaman, 174 Misc. 792; McCarthy v. Arndstein, 262 U. S. 355; Counselman v. Hitchcock, 142 U. S. 547; Matter of Doyle, 257 N. Y. 244.) II. The County Court should have determined respondent’s status before directing him to testify. (Siklek v. Comm., 33 Va. 789.)
   Dye, J.

The People appeal from an order of the Appellate Division, Second Department, sustaining a petition for a writ of habeas corpus and discharging the relator, Frederick A. Hofsaes, from custody. The writ had been sued out of the Appellate Division in the first instance to test relator’s conviction and sentence by the Kings County Court (Leibowitm, J.), for criminal contempt in refusing to answer a question as a witness before the Kings County Grand Jury (Code Crim. Pro., § 619; Judiciary Law, § 750, subd. 5) which had been duly held over to continue an investigation into the alleged activities of criminals, racketeers and gamblers within the County of Kings and every and all matters affecting and appertaining thereto.”

On October 6, 1950, relator Hofsaes — a New York City police inspector — was subpoenaed to testify before the Grand Jury. Before testifying he signed a waiver of immunity pursuant to section 2446 of the Penal Law. By its terms the relator waived all immunity which I would otherwise obtain from indictment, prosecution, punishment, penalty or forfeiture ” by reason of any testimony which he might give or any evidence he might produce relating to the acts of * * * Frederick A. Hoesaes or of any other person as well as any privilege against the use against him. of the testimony so given or the evidence so produced upon any criminal investigation, prosecution or proceeding.”

The District Attorney had evidence that a Fada television set which had been purchased along with several other sets by one Harry Gross — an alleged book-maker then being held in custody as a material witness in connection with the same Grand Jury investigation (see People ex rel. Gross v. Sheriff of City of N. Y., 302 N. Y. 173) —had been delivered to the relator’s residence shortly before Christmas, 1948. When relator was questioned concerning this incident he readily admitted knowing Gross and that such a machine had been delivered to his home but when questioned along lines that would tend to establish that the set was knowingly received by him as a gift from Gross, his answers were deemed so evasive, inconsistent and incredible as to be tantamount to a refusal to answer and he was then cited for contempt and taken before the Kings County Court. The court, however, declined on the record presented to adjudge relator’s answers contumacious as a matter of law. The court directed him to return to the Grand Jury and “ tell the truth ”. The relator, however, adhered to his prior testimony.

With the contempt proceeding still in abeyance, relator reappeared before the Grand Jury on October 16th and testified that he was no longer a member of the police department, having filed an application for retirement on the evening of October 6th. The following then transpired:

“ Q. Now, Mr. Hofsaes, did you not, on or about the month of December, 1948 and at or prior to Christmas of that year receive a television set, a Fada television set at your home at 2550 East 29th Street, in the Borough of Brooklyn, which set was delivered by the Pine Television Company for the Fulton Eadio & Television Company of Fulton Street, Brooklyn, and which set was bought from the said Fulton Television Company and paid for by Harry Gross? A. Upon the advice of my counsel — * * * I decline to testify on the ground that my testimony might tend to incriminate me and subject me to other penalties. I claim my constitutional and statutory privileges and immunity.
££ I withdraw the waiver of immunity heretofore executed by me in this proceeding. I should like to add that since I signed the waiver of immunity in this proceeding I have retired from the Police Department of the City of New York after having served thirty-three years, one month and twenty days plus a few hours which lawfully entitles me to such retirement for length of service. * * *
" Q. Do I understand, Mr. Hofsaes, on the basis of the statement which you have just read to the Grand Jury you refuse, on the grounds stated by you, to answer the question which I put to you? What is your answer? * * *
££ A. Yes.
" Q. And do you, Mr. Hofsaes, on the basis of the statement that you have read to the Grand Jury and on the grounds stated therein refuse to answer other questions along the same line of inquiry? A. Yes.” (Emphasis supplied.)

For this refusal to answer an order to show cause, issued on the petition of the foreman of the Grand Jury, was served October 17th. Following an open hearing at which the relator was present and represented by counsel he was adjudged in contempt. It is this adjudication that is challenged by this writ.

The Appellate Division in sustaining the writ recognized that when relator first appeared before the Grand Jury on October 6th it was for examination in connection with alleged violations of the laws pertaining to bribery, gambling and conspiracy and that he was then required to testify even though such testimony might be self incriminating for he had statutory immunity from prosecution (Penal Law, §§ 381, 584, 996) unless such immunity be waived (Penal Law, § 2446). The court was of the view, however, that at relator’s final appearance before the Grand Jury on October 16th, the circumstances had so materially changed as to constitute a new, separate and distinct investigation which was concerned with establishing grounds for relator’s conviction for criminal contempt and was not — at least then — investigating into gambling and official corruption connected with gambling; that, accordingly, the waiver of immunity executed prior to his first appearance when no contempt charge was pending was no longer effective. In this view the Appellate Division regarded his refusal to answer the questions propounded and his reiterated statement that he would refuse to answer other questions along the same line ” as not contumacious but a proper exercise of his privilege against self incrimination. The writ was sustained but without prejudice to recall of relator as a witness before the Grand Jury and to such further proceedings as may be necessary and proper to compel an answer to the question on which the contempt proceeding was founded; and without prejudice to any . other question relevant to the Grand Jury investigation.

We disagree with the Appellate Division’s conclusion that the relator had effectively withdrawn his waiver. Conceding arguendo that on relator’s final appearance the Grand Jury and the District Attorney were intent on establishing a basis for holding relator in contempt, it does not follow that it thereby initiated a new proceeding or that it had embarked on an investigation aimed at establishing the commission of another and different crime by relator. The contempt process was but ancillary to and in aid of the main inquiry. As we read the questions, which he refused to answer, against the background of the whole record, it seems to us that the controverted questions dealt with no new subject matter. Hence, relator’s waiver of immunity previously given pursuant to section 2446. of the Penal Law continued effective.

Inasmuch, however, as there was doubt and uncertainty concerning relator’s status as a witness, and his privileges and duties as such, we accept the Appellate Division’s conclusion that, under the circumstances, relator was not contumacious. If and when he is recalled, relator, now apprised that his waiver of immunity continues effective, will be in a position to make an intelligent and conscious choice whether to answer questions or whether to subject himself to possible contempt proceedings by refusing to do so. Accordingly, the writ should be sustained, without prejudice, however, to the recalling of relator as a witness and to such further proceedings not inconsistent with the opinion herein as may be necessary and proper to compel relator to answer questions which may be relevant to the Grand Jury investigation.

The order of the Appellate Division should be affirmed.

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

Order affirmed.


text:
    Cortlandt Cafeteria, Inc., et al., Respondents, v. Cortlandt and Dey Streets Corporation, Appellant. In the Matter of J. A. Kennedy Realty Corporation, Appellant. C. Ludwig Baumann & Company, Respondent.
    Argued April 2, 1951;
    decided April 13, 1951.

      Elmer J. Hoare and Alex L. Gaccia, Jr., for appellant in Cortlandt Cafeteria case.
    I. Judicial review of fair rental value under section 4 is available in all cases of statutory tenancy, including those arising after expiration of variable rent leases. (Matter of 500 Fifth Ave., Inc. [Wise Shoe Co.], 274 App. Div. 241, 300 N. Y. 491; City Bank Farmers Trust Co. v. Caples Co., 276 App. Div. 428; Matter of Zellner [Brooklyn Trust Co.], 299 N. Y. 243; Twentieth Century Associates v. Waldman, 294 N. Y. 571.) II. Section 13 preserves existing and future variable leases for the duration of their terms, but does not bar relief under section 4 after expiration of such leases. (Stern v. Equitable Trust Co., 238 N. Y. 267; Glauberman v. University Place Apts., Inc., 188 Misc. 277, 272 App. Div. 758, 297 N. Y. 587; 130 West 57 Corp. v. Hyman, 188 Misc. 92; King Arthur Restaurant v. London Terrace, Inc., 273 App. Div. 233; New York Towers, Inc., v. Lillian Sloane, Inc., 299 N. . Y. 720; 500 Fifth Ave., Inc., v. Dalsheim, 300 N. Y. 587; Yakus v. United States, 321 U. S. 414; Wasservogel v. Meyerowitz, 300 N. Y. 125.) III. The 15% limitation upon allowable rent increases under subdivision 2 of section 4, as amended, does not bar the maintenance of the proceeding now pending against respondents. (Matter of 792 Madison Ave., Inc. [Vraig], 277 App. Div. 975; City of New York v. Interboro Fuel Corp., 185 Misc. 299.)

      Eugene J. Morris, Alfred J. Callahan and Eli Vigliano for Cortlandt Cafeteria, Inc., respondent in Cortland Cafeteria case,
    Section 13 exclusively governs variable leases and under it the percentage of rental reserved in a variable lease continues without change both before and after expiration of the term of the lease to the exclusion of section 4, and such statutory prescription operates fairly and equitably to both landlord and tenant consistent with the basic pattern of the rent control acts. (Matter of Harvey Holding Corp. [Satter], 297 N. Y. 113; New York Towers, Inc., v. Lillian Sloane, Inc., 299 N. Y. 720; Matter of 500 Fifth Ave., Inc. [Wise Shoe Co.], 274 App. Div. 241, 300 N. Y. 491; Matter of Kennedy Realty Corp., 277 App. Div. 796; Seven Eleven Fifth Ave., Inc., v. Herstein Co., 188 Misc. 713, 272 App. Div. 804; Edythe Nelson, Inc., v. 500 Fifth Ave., Inc., 73 N. Y. S. 2d 299.)

      Henry L. Schaefer and Abbie Goldstein for Chas. W. Wolf, Inc., respondent in Cortlandt Cafeteria case.
    The judgment in favor of plaintiffs, as requested in paragraph 7 of the submission, declaring that subdivision 2 of section 4 of the Emergency Business Space Bent Control Law does not apply to these plaintiffs tenants, should be affirmed.

      Patrick J. Mahoney and Thomas J. Foley for appellant in Kennedy Realty Corporation case.
    I. Section 4 of the statute permits a landlord to seek a reasonable rent exceeding in amount the emergency rent without any exceptions. (Twentieth Century Associates v. Waldman, 294 N. Y. 571; Matter of 500 Fifth Ave., Inc. [Wise Shoe Co.], 274 App. Div. 241, 300 N. Y. 491; Cortlandt Cafeteria, Inc., v. Cortlandt & Dey Sts. Corp., 277 App. Div. 299.) II. The reasonable rent to be fixed under section 4 should be a total rent for the tenant’s occupancy.

      Edward S. Greenbaum, Jerome Handler and Herbert Feiler for respondent in Kennedy Realty Corporation case.
    Section 14 of the Emergency Business Space Rent Control Law precludes any change in a variable lease except a 15% increase in the fixed rent. (Matter of 500 Fifth Ave., Inc. [Wise Shoe Co.], 274 App. Div. 241, 300 N. Y. 491.)

      Jay Leo Rothschild, amicus curies, in support of respondents’ position.
    The surest implementation of legislative intention is the construction of the Legislature’s enactments so as to “ suppress the mischief and advance the remedy ”. The literal meaning of words must yield to the legislative intention. (American Historical Soc. v. Glenn, 248 N. Y. 445; Henavie v. New York Central & H. R. R. R. Co., 154 N. Y. 278; Surace v. Danna, 248 N. Y. 18; Matter of Genesee Valley Trust Co. v.
      Glazer, 295 N. Y. 219; Holy Trinity Church v. United States, 143 U. S. 457; National Labor Relations Bd. v. Hearst Publications, 322 U. S. 111; Utah Junk Co. v. Porter, 328 U. S. 39; St. Nicholas Cathedral v. Kedroff, 302 N. Y. 1; People v. Friedman, 302 N. Y. 75.)
   Per Curiam.

The statutory rent to which a landlord is entitled, and to which a tenant is subject, under a lease providing for a variable rental is controlled by section 14 of the Commercial Rent Law (L. 1945, ch. 3, as amd.) and by its prototype, section 13, in the Business Rent Law (L. 1945, ch. 314, as amd.), and not by section 4. Upon the expiration of such a lease — which prescribes, in addition to the percentage, a fixed, basic or minimum rent — the percentage portion of the rent is to continue without change and the fixed or minimum rent is to be increased by 15%. (See Matter of 500 Fifth Ave., Inc. [Wise Shoe Co.], 300 N. Y. 491, affg. 274 App. Div. 241; 500 Fifth Ave., Inc., v. Dalsheim, 300 N. Y. 587.) The “ comparable ” rent provision of the section — expressly limited in its operation to a lease calling for a rental on a graduated scale (see Matter of Harvey Holding Corp. [Satter], 297 N. Y. 113, 115) — does not apply to a variable rent lease.

In each of the cases now under consideration, therefore, the landlord is entitled only to the stipulated fixed minimum rent, plus 15% thereof, plus the percentage specified in the lease.

In the Cortlandt Cafeteria case, the judgment of the Appellate Division should be affirmed, without costs; in the Kennedy Realty Corporation case, the order should be affirmed, with costs.

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

In the Cortlandt Cafeteria case: judgment affirmed.

In the Kennedy Realty Corporation case: order affirmed.


text:
    Joe Leibowitz, Appellant, v. Elbny Corporation, Respondent.
    Submitted March 5, 1951;
    decided April 13, 1951.

      M. Benjamin Baron for appellant.
    I. The trial court erred in dismissing the complaint and should have submitted the case to the jury. (Boreyko v. Bay Ridge Sav. Bank, 274 App. Div. 1060; Reische v. Montgomery, 273 App. Div. 824.) II. As a matter of law, plaintiff was not guilty of contributory negligence. (Peil v. Reinhart, 127 N. Y. 381.) III. On the dismissal for failure of proof plaintiff is entitled to every favorable and legitimate inference to be drawn from his testimony to support a prima facie case. (Relihan v. Felson, 268 App. Div. 76; De Wald v. Seidenberg, 297 N. Y. 335; Iorio v. Murray, 256 App. Div. 512; Dillan v. Rockaway Beach Hosp., 284 N. Y. 176; Ingersoll v. Liberty Bank of Buffalo, 278 N. Y. 1; Cornbrooks v. Terminal Barber Shops, Inc., 282 N. Y. 217; Rosenberg v. Schwartz, 260 N. Y. 162; Martin v. Herzog, 228 N. Y. 164; Betzag v. Gulf Oil Corp., 298 N. Y. 358; Tierney v. New York R. T. Corp., 243 App. Div. 782.)

      Daniel Miner, Archie B. Morrison, John D. Lynn and Robert A. Dwyer for respondent.
    I. Plaintiff failed to prove a cause of action. (Schachter v. Cohen, 258 App. Div. 487; Zolla v. Young Women’s Christian Assn., 250 App. Div. 139; Cullings v. Goetz, 256 N. Y. 287; Kirshenbaum v. General Outdoor Adv. Co., 258 N. Y. 489; Miller v. Noyes, 268 App. Div. 797, 294 N. Y. 755; Hines v. Cielo, 260 App. Div. 878, 285 N. Y. 786; Busick v. Home Owners Loan Corp., 91 N. H. 257; Timmons v. Williams Wood Products Corp., 164 S. C. 361.) II. Plaintiff was contributorily negligent as a matter of law; furthermore, there was an assumption of risk by plaintiff. (Stoops v. Carlisle-Pennell Lbr. Co., 127 Wash. 82; McGinn v. French, 107 Wis. 54; Kline v. Abraham, 178 N. Y. 377; Mitcheltree v. Stair, 135 App. Div. 210; Talley v. Curtis, 23 Tenn. App. 181; Fonya v. Chicago Title & T. Co., 296 Ill. App. 227; Brand v. Interborough R. T. Co., 273 N. Y. 658; Hudson v. Church of Holy Trinity, 250 N. Y. 513; O’Neill v. Chatham Phenix Nat. Bank & Trust Co., 242 App. Div. 511, 267 N. Y. 622.)
   Per Curiam.

Plaintiff sustained personal injuries in a fall down a stairway which was the only access to the street from the apartment rented by him from defendant.. His complaint was dismissed, after trial, for failure of proof, diving plaintiff the benefit of every favorable inference, his testimony tended to establish that nails projected from one of the steps (in this he was corroborated by a police officer), upon which his clothing caught, causing his fall; that the nails were there as a result of defendant’s affirmative negligence in the removal of the old linoleum which allegedly covered the steps at the time when plaintiff rented and moved into the apartment; and we cannot say upon this record that he was guilty of contributory negligence as a matter of law.

Plaintiff had established a prima facie case and was entitled to go to the jury, hence it was error to dismiss his complaint. The judgments should be reversed and a new trial granted, with costs to abide the event.

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

Judgments reversed, etc.


text:
    In the Matter of the Village of Dresden, Yates County, et al., Respondents, against County of Yates et al., Appellants.
    Argued April 4, 1951;
    decided April 13, 1951.

      Homer C. Pelton for appellants.
    I. Petitioners failed to show a clear legal right to the order granted herein. The lower court was in error in making an order directing the rebuilding of the bridge and thereby depriving respondent county of its right to exercise its discretion in the premises. (Matter of Small v. Moss, 277 N. Y. 501; Matter of Burr v. Voorhis, 229 N. Y. 382; People ex rel. Harris v. Commissioners of Land Office, 149 N. Y. 26; Matter of Beatty v. Board of Managers of Binghamton City Hosp., 130 Misc. 181; Matter of Berger v. Walsh, 291 N. Y. 220.) II. Petitioners have failed to show any right to the order granted herein.

      Paul Reed Taylor for respondents.
    I. Since there was no abandonment, the statute requires an order to rebuild the Milo Street bridge. (Matter of Scheibel v. O’Brien, 230 N. Y. 277; People ex rel. Keene v. Board of Supervisors, 142 N. Y. 271,151 N. Y. 190.) II. Mandamus, in its modern equivalent, article 78 of the Civil Practice Act, is the proper remedy to require the county to fulfill its duty to rebuild the bridge. (People ex rel. Keene v. Board of Supervisors, 142 N. Y. 271, 145 N. Y. 597, 151 N. Y. 190; Town of Saratoga v. Greene, 240 N. Y. 127; Town of Easton v. Canal Bd., 216 N. Y. 486.)
   Per Curiam.

Subdivision 6 of section 231 of the Highway Law enjoins upon appellants in the circumstances of this case the duty to rebuild the bridge (see Town of Easton v. Canal Bd., 216 N. Y. 486; People ex rel. Keene v. Board of Supervisors, 142 N. Y. 271). The fact that the county superintendent has recommended abandonment of the bridge pursuant to subdivision 11 of section 231 does not excuse appellants from performing their duty under subdivision 6. Appellants may continue the pending abandonment proceeding and procure an order of abandonment, but until such order has become effective, their duty under subdivision 6 continues. The order of the Appellate Division should be affirmed, with costs.

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

Order affirmed.


author: Fuld, J.

text:
    In the Matter of the Estate of John L. Keenan, Deceased. Florence R. Keenan, as Executrix of John L. Keenan, Deceased, Appellant; State Tax Commission, Respondent.
    Argued April 10, 1951;
    decided May 24, 1951.

      Francis A. O’Brien and John L. Keenan, Jr., for appellant.
    I. The widow’s life estate is in legal effect not defeasible and as a matter of law qualifies for the statutory exemption. (Sherman v. Richmond Hose Co., 230 N. Y. 462; Hogan v. Curtin, 88 N. Y. 162; Matter of Arrowsmith, 162 App. Div. 623, 213 N. Y. 704.) II. If the widow’s life estate be deemed effectively defeasible, the taxing authority below erred as a matter of law in failing to use or permit the use of pertinent actuarial tables and data on the probability of remarriage. III. The omission to use actuarial data and proof is contrary to the policy of this State to conform, where possible, with Federal tax rule and interpretation. (Matter of Weiden, 263 N. Y. 107; Matter of Rogers, 296 N. Y. 676; Ithaca Trust Co. v. United States, 279 U. S. 151; Matter of Cregan, 275 N. Y. 337; Commissioner of Internal Revenue v. Maresi, 156 F. 2d 929; Du Charme’s Estate v. Commissioner of Internal Revenue, 164 F. 2d 959.) IV. The determination below ignores both the purpose and technical tests of the exemption statute. V. The legacy of $5,000 to decedent’s brother should be held exempt. (Matter of Ackerina, 195 Misc. 383.)

      Mortimer M. Kassell and Francis Kelliher for respondent.
    I. The wife’s right to income from the residuary trust will terminate upon her remarriage. (Matter of Daggett, 130 Misc. 635.) H. The estate transferred to the widow, terminable on remarriage, is not exempt under section 249-q of the Tax Law. (People v. Brooklyn Garden Apts., 283 N. Y. 373; Matter of Kinney, 257 App. Div. 496, 281 N. Y. 840; County of Herkimer v. Village of Herkimer, 251 App. Div. 126, 279 N. Y. 560; Matter of Kennedy, 240 App. Div. 20, 264 N. Y. 691; Matter of Smith, 246 App. Div. 99; Matter of Lande, 241 App. Div. 138; Matter of Chollet, 148 Misc. 782; Matter of Cregan, 275 N. Y. 337; Humes v. United States, 276 U. S. 487; Matter of Adams v. New York, O. & W. Ry. Co., 220 N. Y. 579; Matter of Townsend, 215 N. Y. 442; Matter of Campanari, 188 Misc. 666; Matter of Van Cott, 194 Misc. 984.) III. The legacy of $5,000 paid to the children of decedent’s predeceased brother is not exempt under section 249-q of the Tax Law. (Tuttle v. Tuttle, 2 Dem. 48; Matter of Fagin, 155 Misc. 533.)
   Fuld, J.

John L. Keenan died in 1942, and by will provided a $5,000 bequest for his brother James — who had predeceased him, leaving three children — gave certain property outright to his wife Florence, then fifty-five years old, and directed that one half of the income of a trust of the residue be paid to his wife ‘1 as long as she is unmarried and my widow ’ ’. The ‘ ‘ remainder ’ ’ of the income was to be paid to his children and the principal was to be divided, upon his wife’s death, among such children and the issue of any child who might have predeceased him.

In the estate tax return, filed by the wife as executrix, the property which passed to the wife outright was valued at $11,619, and her right to receive the trust income was valued as an interest to continue for her life — on the assumption that she would not remarry — at $64,319.78. No computation was made of the value of such interest talcing into account the possibility of her remarriage. Claim was made for an exemption of $20,000 with respect to property transferred to the wife and for an exemption of $5,000 on account of the bequest to the brother.

The Surrogate’s Court of Monroe County, refusing to allow any exemption with respect to the wife’s right to income, fixed the exemption at $11,619, the value of the property which passed to her outright. It was the surrogate’s view that the value of the widow’s life estate defeasible by remarriage was impossible of computation by any formula recognized by law. He also denied the exemption sought for the bequest to the brother. The Appellate Division — one justice dissenting — affirmed the surrogate’s determination. We reach a different conclusion as to the disallowance of an exemption vis-a-vis the wife’s right to receive income until her remarriage. Such a defeasible life interest is susceptible of valuation by reference to recognized remarriage tables, and, since that is so, the surrogate should have made a determination of its value.

It is section 249-q of the Tax Law that prescribes the exemptions to be allowed in computing the amount of the net estate subject to tax. That section, as it read in 1942 when the testator died, allowed exemptions of * ‘ [a.] The amount of the net estate not exceeding twenty-thousand dollars transferred to a husband or wife; [b.] The amount of the net estate, not exceeding five thousand dollars in each instance, transferred * * * to a brother or sister ”. As is evident from a reading of the provision, the grant of an exemption is not limited to transfers of particular estates or interests. The exemption is allowable whether the estate be present or future, vested or contingent, indefeasible or subject to defeasance, provided only that its ‘ ‘ ‘ value ’ can be determined with reasonable certainty upon the basis of known data ” — as this court declared in 1937 in Matter of Cregan (275 N. Y. 337, 346).

A gift to- a spouse of an outright life estate or of a right to income for life is, of course, a transfer for which an exemption must be granted, and the absence of any language in the statute — until amended in 1946, four years after the testator’s death (L. 1946, ch. 380; see N. Y. Legis. Ann., 1946, pp. 303-304) — limiting the exemption to a transfer of an interest 11 indefeasibly vested ”, establishes that a bequest to a wife of a right to income for life defeasible upon remarriage is not to be denied exemption or excluded from the application of the rule announced in the Cregan case (supra, 275 N. Y. 337), simply because it may terminate upon the happening of a contingency. Thus, the inquiry is narrowed to whether a life interest or a right to income for life, terminable by remarriage, is susceptible of valuation.

No one would today suggest that an unqualified life estate cannot properly be valued upon the basis of recognized mortality tables, even though the life span of any particular individual is most uncertain; while nothing — it was long ago said — may be ‘ more certaine than to dye * * * nothing [is] more uncertaine than the houre of death.” The average experience reflected in mortality tables has long been accepted as an adequate basis for valuing life interests despite the factual uncertainties that necessarily exist in each individual case. True, another factor of uncertainty is added when the life estate is to terminate upon remarriage. But we do not regard that as a sufficient reason for drawing a line, sanctioning the use of mortality tables and rejecting the use of remarriage tables — particularly when there are such remarriage tables, long in use, that have been approved by legislature and court as an appropriate basis of valuation. As Judge Learned Hand said in Commissioner of Internal Revenue v. Maresi (156 F. 2d 929, 931): “We are dealing with speculation as to the future on a subject which at best admits of no accurate determination. That is quite as true of longevity itself as of continued celibacy; the only difference is that as to the second there is one added factor of uncertainty. The one sure way to do injustice in such cases is to allow nothing whatever upon the excuse that we cannot tell how much to allow.” (Emphasis supplied.)

The use of accredited remarriage tables was upheld for estate tax purposes by the United States Court of Appeals for the Second Circuit in the Maresi case (supra, 156 F. 2d 929) (see, also, Du Charme’s Estate v. Commissioner of Internal Revenue, 164 F. 2d 959, 963); the use of the remarriage tables of the Dutch Boyal Insurance Institution has been sanctioned as the basis for computing the value of commuted payments to widows under sections 25 and 27 of the Workmen’s Compensation Law since 1917; and — following a report in 1947 on the subject by the Law Revision Commission (N. Y. Legis. Doc. [1947] No. 65, pp. 301 et seq.) — the legislature of this state enacted section 1334 of the Civil Practice Act, authorizing the use of the Casualty Actuarial Society’s Table on Remarriage or other tables accepted by actuarial practice ” in determining the value of an interest in real property defeasible on remarriage if justice requires ” that the possibility of defeasance be taken into account (L. 1947, eh. 848).

The duty of the surrogate to determine the value of the wife’s right to income is imposed by section 249-v of the Tax Law, which reads as follows: “ The value of every future or limited estate, income, interest or annuity for any life or lives in being, or in any way dependent upon any life or lives in being, whether vested or contingent, shall be determined by the rule, method and standard of mortality and value employed by the superintendent of insurance in ascertaining the value of annuities for the determination of liabilities of life insurance companies and according to the actuaries’ or combined experience table of mortality, as extended * * * and the superintendent of insurance shall, on the application of the surrogate or appraiser, make such determination and certify the same to the surrogate or appraiser, and his certificate shall be conclusive evidence that the method of computation adopted therein is correct.” The words, every future or limited estate * * * in any way dependent upon any life or lives in being, whether vested or contingent,” are unquestionably broad enough to include a life estate limited by, or defeasible upon, remarriage. Certainly, the section contains not a word or suggestion that prevents or precludes a surrogate from employing recognized remarriage tables in making the requisite computation.

The duty properly to assess the tax rested upon the surrogate and, consequently, the estate neither lost its right to a proper decision as to value nor forfeited its power to question the correctness of the determination that was made, by failing to offer in evidence available remarriage tables. If the surrogate chose to make the essential value determination himself, it devolved upon him to employ all permissible data, whether proffered or not; if he chose not to make the computation himself, it was incumbent upon him to apply to the superintendent of insurance for a determination of value pursuant to section 249-v.

But a word need be said about the exemption claimed on account of the bequest to the brother. Since he had predeceased the testator, the gift of $5,000, that would otherwise have gone to him, passed, under section 29 of the Decedent Estate Law, to his three children who survived the testator. The exemptions provided for in section 249-q are based solely upon the actual relationship between the beneficiaries and the decedent. While a brother is included within the classes enumerated in the statute, the issue or descendants of a brother are not. That James’ three children became entitled, by virtue of section 29, to his legacy does not mean that it vested in their father or in his estate. The provisions contained in that section to the effect that the legacy “ shall not lapse ” and that the descendants of the legatee shall take “as if such legatee or devisee had survived the testator and had died intestate ’ ’ were not intended to accomplish a vesting of the property in the estate of the deceased legatee. Such language was employed merely to describe with clarity the class of persons to whom the property would pass directly from the testator. In short, then, the children took from the testator, and not through or from the estate of their father. (See Tuttle v. Tuttle, 2 Dem. 48, 53; Matter of Fagin, 155 Misc. 533, 534-535.) Quite clearly, the $5,000 legacy was not ‘ transferred ” to a brother; the courts below properly refused to allow that exemption.

The order of the Appellate Division and the decree of the Surrogate’s Court should be modified by reversing so much thereof as disallows the widow’s exemption with respect to her right to income for life defeasible by remarriage, and, except as so modified, affirmed, without costs, and the matter should be remitted to the Surrogate’s Court for further proceedings not inconsistent with this opinion.

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

Ordered accordingly.