text:
    In the Matter of Laura Kane, Appellant, v. August Necci, Respondent.

      (Argued October 10, 1935;
    decided November 19, 1935.)

      Paul Windels, Corporation Counsel (Paxton Blair and Arthur B. Hoff, Jr., of counsel), for appellant.
    The Court of Appeals has jurisdiction of the appeal. (Code Crim. Proc. § 519, subd. 1, § 520; Laws of 1933, ch. 482, § 102.)

      Michael J. D’Ambrosio for respondent.
   Crane, Ch. J.

This proceeding has arisen in the Domestic Relations Court, and this opinion deals with the jurisdiction of this court to hear the appeal.

Part VI of the Code of Criminal Procedure pertains to Special Proceedings of a Criminal Nature,” which includes titles dealing with vagrants, disorderly persons, wayward minors and poor persons, and others of like nature.

Title VIII, “ Proceedings Respecting the Support of Poor Persons,” section 914, provides that the husband, wife, father, mother, grandparent, child or grandchild of a recipient of public relief or of a person hable to become in need of public relief shall, if of sufficient ability, be responsible for the support of such person. Step-parents shah in like manner be responsible for the support of minor step-children.”

By section 915 the Commissioners of Public Charities may apply to the Court of General Sessions, or to the Supreme Court of the State of New York in the city of New York, for an order to compel such relief, and the court or judge may dispose of the matter summarily, after notice of hearing.

By the Inferior Criminal Courts Act (Laws of 1910, ch. 659) the Magistrate’s Court would probably deal with such proceedings. This Inferior Criminal Courts Act refers to the Courts of Special Sessions and to the City Magistrates’ Courts. By section 40 the Court of Special Sessions shall have exclusive power to hear and determine appeals from a' judgment, order or other determination of a city magistrate; and by section 56 of the act, the judgment of the Court of Special Sessions upon an appeal is final except that a further right of appeal to the Court of Appeals shall he as provided in subdivision 3 of section 520 of the Code of Criminal Procedure.

This in brief is the procedure in the Inferior Criminal Courts of the city of New York in special proceedings of a criminal nature. In any such proceeding a • further appeal may be taken to the Court of Appeals from the Special Sessions on the allowance of the appeal by a judge of the Court of Appeals or a justice of the Appellate Division (Code Grim. Proc. .§ 520).

If this were all we had to consider it would be necessary for the Commissioner of Public Charities or Welfare to proceed to enforce a liability to support poor relatives ■by proceedings in the Inferior Criminal Courts of the city of New York. These would be proceedings of a criminal nature.

Another law, however, has been passed by the Legislature, chapter 482 of the Laws of 1933, creating in the .city of New York the Court of Domestic Relations, proceedings in which are treated as of a civil rather than of a criminal nature. ..It is comprised of two divisions, to be known as the Children’s Court ” and the Family Court,” respectively.

As applicable to children, section 84 says that the determination of such a court shall not be denominated a conviction, and no child shall be considered a criminal by reason of any of its decisions.

Article 2 of title III specifies those who are liable for the support of poor relations, and is similar to section 914 of the Code of Criminal Procedure. The father, the mother, the grandparents and the stepparent of a child are declared legally chargeable with its support if likely to become a public charge (§ 101).

The procedure in the Family Court is outlined in articles 3 and 4 of title III. Although by section 132 the respondent, if he refuses to obey the order for support, may be committed to jail not to exceed twelve months, this does not make the proceeding one of a criminal nature; and in this view we are supported by the statement in section 162 which says: “ The action brought by said commissioner of public welfare to compel such support and the proceedings relative thereto shall, however, be brought in the family court of the borough in which the respondent lives, instead of before a magistrate as provided in said sections of the charter and code of criminal procedure.”

Appeals from the orders of this Court of Domestic Relations are allowed by section 58 in these words: “An appeal may be taken to the appellate division of the supreme court of the appropriate judicial department by any party to the proceeding from any final order or judgment of the court, within thirty days after the entry of said order or judgment, and the provisions of article thirty-seven and article thirty-nine of the civil practice act shall relate to appeals hereunder in so far as such provisions may be practically applied thereto.” Article 37 (Civ. Prac. Act) applies to appeals generally, and article 39 to appeals to the Appellate Division of the Supreme Court. Article 38 (Civ. Prac. Act), which applies to appeals to the Court of Appeals, is left out.

This proceeding was commenced in the Domestic Relations Court of the city of New York (Family Court) upon the petition of Laura Kane, representing the Department of Public Welfare, to compel August Necci to support two of his stepchildren, Elvira Necci, aged thirteen, and Amelia Necci, aged eleven, duly committed on the 4th day of October, 1928, by the Department of Public Welfare, to St. Michael’s Home, Green Ridge, Staten Island. An order made on the 16th day of August, 1934, requiring the defendant to pay eight dollars a week, was reversed by the Appellate Division on the ground that the defendant was married to the mother of the children prior to the amendment by the Laws of 1933, chapter 482, requiring the stepfather to support his stepchildren in case of need. The court thought that the act establishing liability was unconstitutional if it related back to prior marriages, as a stepfather was under no moral duty to support his stepchildren.

From this order of the Appellate Division an appeal was allowed by the Chief Judge in order that we might determine our jurisdiction in these cases as there seemed to be some confusion on the point. We now say that these proceedings are no longer of a criminal nature as they have shifted to the civil side of the courts by the provisions of chapter 482 of the Laws of 1933 creating the Domestic Relations Court of the city of New York. If an appeal is to come here in such matters it must be by permission of the Appellate Division in accordance with subdivision 1 of section 589 of the Civil Practice Act, and article VI, section 7, subdivision 5 of the Constitution of the State of New York. We do not think that the Legislature in enacting section 58 of the Domestic Relations Court Act intended to restrict the right of the Appellate Division to certify questions to this court in accordance with the usual practice of appeals from courts not of record.

In dismissing this appeal we do not pass upon the merits of the action or intimate that we agree with the Appellate Division in its opinion, that chapter 482 of the Laws of 1933 enlarging the liability of stepfathers would be unconstitutional if applicable to marriages theretofore contracted.

The appeal should be dismissed, without costs.

Lehman, O’Brien, Crouch, Loughran and Finch, JJ., concur; Hubbs, J., not sitting.

Appeal dismissed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Harlem Church of the Seventh Day Adventists, Appellant, v. Greater New York Corporation of Seventh Day Adventists et al., Respondents.

      (Argued October 14, 1935;
    decided November 19, 1935.)

      Nathan Lieberman for appellant.
    The appellant never having rebelled or seceded, it cannot be deprived of its property. (Cons. Laws, ch. 51, § 5; Westminster Church v. Presbytery of New York, 211 N. Y. 214; Trustees of Presbytery v. Westminster Church, 222 N. Y. 305.) The implication of a ijrust as found by the trial court was proper. (Beatty v. Guggenheim Exploration Co., 225 N. Y. 380; Sinclair v. Purdy, 235 N. Y. 245; Wood v. Rabe, 96 N. Y. 414; Goldsmith v. Goldsmith, 145 N. Y. 313; Canda v. Totten, 157 N. Y. 281.)

      Jay Noble Emley and Julius Lerner for respondents.
    There is no basis in law for implying a trust. (Leary v. Corvin, 181 N. Y. 222; Sinclair v. Purdy, 235 N. Y. 245; Trustees of Presbytery v. Westminster Church, 222 N. Y. 305.)
   Per Curiam.

The plaintiff, a religious corporation, appeals from a judgment of reversal by the Appellate Division resulting in a dismissal of the complaint.

This action is for specific performance of an alleged oral agreement by the defendants (one the Greater New York Corporation of Seventh Day Adventists, the central corporate body of the denomination which holds title to the temporal property of the denomination, and the other ■the Greater New York Conference of Seventh Day Adventists, its highest ecclesiastical governing body) to hold in trust and to convey the present church property to the plaintiff, a religious corporation which formerly held title to a church building earlier used and deeded to the defendant corporation upon its demand made pursuant to a rule of the denomination requiring all church property in the jurisdiction of the defendant conference to be held in the name of the defendant corporation. The plaintiff relies upon evidence that the denomination made oral representations justifying a conclusion that the present church property would be held in trust and that the church could demand a conveyance of the property whenever it so desired.

This is not a case where the record title to the church property still remains in the individual church (Westminster Presbyterian Church v. Trustees of Presbytery of New York, 211 N. Y. 214; Trustees of Presbytery of New York v. Westminster Presbyterian Church, 222 N. Y. 305), but one where the title is in the central body pursuant to a rule of the denomination. The evidence does not warrant a finding that a trust arose by implication of law. The relationship between the parties negatives any unjust enrichment (Trustees of Presbytery of New York v. Westminster Presbyterian Church, supra), and the large sums of money contributed by the congregation of the plaintiff were specifically donated for foreign missions, harvest gatherings and tithes. The evidence offered to show an express trust at most reveals an agreement to hold the property for use as a church by the congregation of the plaintiff so long as it abided by the tenets of the faith and complied with the rules of the denomination.

The plaintiff cannot justly complain of its expulsion, since it permitted to go by default formal charges that it had violated the denominational regulations and had seceded from the denomination.

Upon the argument, however, counsel for the respondents insisted that the central denomination has absolute rights in the property. The central denomination, however, cannot and doubtless does not desire to deprive communicants who have been members of the plaintiff congregation from affiliating with the congregation which will worship in the property formerly used by the plaintiff, providing all such members observe the tenets of the faith and the rules of the denomination. In this connection, we observe that at the time it expelled the plaintiff the conference passed a resolution providing that members of the plaintiff congregation who publicly professed their loyalty to the denomination and their desire to continue therein be reorganized into a new church, to continue the work of the denomination. Still, this resolution may be rescinded. In order that no such situation shall arise, the judgment should be amended so as to secure this right to the members of the old congregation. The title held by the denomination is subject to a beneficial use in the members of the old congregation who desire to affiliate with the new congregation and observe faithfully the tenets of the faith and the rules of the denomination, even though they may have been hostile during the course of this litigation. No member should be discriminated against for this cause alone.

The judgment should be modified in accordance with this opinion and as so modified affirmed, without costs.

Crane, Ch. J., Lehman, O’Brien, Hubbs, Loughran and Finch, JJ., concur; Crouch, J.,_not sitting.

Judgment accordingly.


author: Finch, J.

text:
    Compania de Inversiones Internacionales, Appellant, v. Industrial Mortgage Bank of Finland, Respondent.
    i,Argued October 7, 1935;
    decided November 19, 1935.)

      Phanor J. Eder and Frank Rashap for appellant.
    The joint resolution (48 U. S. Stat. 112) does not extend to favor foreign debtors or to foreign creditors or to international transactions. Legal tender acts in derogation of the common law are strictly construed. (Shotwell v. Denham, 1 N. J. L. 174; Bronson v. Rodes, 7 Wall. [U. S.] 229; Trebilcock v. Wilson, 12 Wall. [U. S.] 687; Lane County v. Oregon, 74 U. S. 71; Hagar v. Reclamation District, 111 U. S. 701; Clarke v. Nevada Land & Mining Co., 6 Nev. 203; Frank v. Calhoun, 59 Penn. St. 381; Matter of Carnegie Trust Co., 151 App. Div. 606; 206 N. Y. 390; Psota v. Long Island R. R. Co., 246 N. Y. 388; Addiss v. Selig, 264 N. Y. 274; Feiber Realty Corp. v. Abel, 265 N. Y. 94; Norman v. B. & O. R. R. Co., 294 U. S. 240.) Currency statutes specifically have no extraterritorial effect. (Du Costa and Cole, 1 Skinner, 272; Emperor of Austria v. Day, 3 De Gex, F. & F. 217; Page v. Pendleton, Wythe [Va.], 177; Searight v. Calbraith, 4 U. S. 325; Gladstone v. Chamberlain, 10 Fed. Cas. No. 5471.) The situs of a debt for general legal purposes is the domicile of the creditor. (State Tax on Foreign Held Bonds, 15 Wall. [U. S.] 300; Murray v. Charleston, 96 U. S. 432; Kirtland v. Hotchkiss, 100 U. S. 491; Beidler v. South Carolina, 282 U. S. 1; City of New York v. McLean, 170 N. Y. 374; Baldwin v. Missouri, 281 U. S. 586; Buck v. Beach, 206 U. S. 392; City Bank Farmers Trust Co. v.
      Schnader, 8 Fed. Supp. 815.) The general rule that payment is governed by the law of the place of payment does not help the defendant. That the bonds are payable here is not a material element. (Stumpf v. Hallahan, 101 App. Div. 383; Levy v. Cleveland, C., C. & St. Louis R. R. Co., 210 App. Div. 422; Searight v. Galbraith, 4 U. S. 325; Union Nat. Bank v. Chapman, 169 N. Y. 538; Gregory v. Morris, 96 U. S. 619; United States v. Erie Ry. Co., 106 U. S. 327; 107 U. S. 1.)

      John J. Scott, Albridge C. Smith, Prescott R. Andrews and William G. Botzow for respondent.
    The bonds are subject to the laws of the United States and the performance of their obligations is regulated thereby. (Marshall v. Sherman, 148 N. Y. 9.) The parties intended the law of the United States to be the law of their contract. (Wilson v. Lewiston Mill Co., 150 N. Y. 314; Stumpf v. Hallahan, 101 App. Div. 383; 185 N. Y. 550; Grand v. Livingston, 4 App. Div. 589; 158 N. Y. 688; Vander Horst v. Kittredge, 229 App. Div. 126.) The place of contracting and the place of performance of the bonds are in the United States. (Graham v. First Nat. Bank, 84 N. Y. 393; Richards & Co. v. Wreschner, 174 App. Div. 484; Curtiss v. Leavitt, 15 N. Y. 2; Hyde v. Goodnow, 3 N. Y. 266; Lee v. Selleck, 33 N. Y. 615; Staples v. Nott, 128 N. Y. 403; Colonial Nat. Bank v. Duerr, 108 App. Div. 215; Smith v. Dixon, 150 App. Div. 571; Thorp v. Keokuk Coal Co., 48 N. Y. 253; Lessler v. De Loynes, 150 App. Div. 868; Hayes v. Ammon, 85 N. Y. Supp. 607.) The joint resolution applies to the obligations of the defendant. Norman v. B. & O. R. R. Co., 294 U. S. 240; Hamilton v. Rathbone, 175 U. S. 414; Lake County v. Rollins, 130 U. S. 662; Price v. Forrest, 173'U. S. 410; Johnson v. Southern Pac. R. R. Co., 196 U. S. 1; Bronson v. Rodes, 7 Wall. [U. S.] 229; First Nat. Bank v. United States, 206 Fed. Rep. 374; United States v. Herron, 87 U. S. 251; Savings Bank v. United States, 86 U. S. 227; United States v. Hoar, 2 Mason, 311; Pine Hill Coal Co. v. United States, 259 U. S. 191; California Iron Yards Co. v. Commissioner, 47 Fed. Rep. [2d] 514.)
   Finch, J.

The plaintiff appeals from a judgment of the Appellate Division, unanimously affirming a judgment denying the motion of the plaintiff for judgment on the pleadings in the sum of $5,307.99, with interest, and instead awarding judgment to the plaintiff for the sum of $3,135, without interest. The amount of the judgment had been tendered to the plaintiff by the defendant prior to the commencement of this action, but the plaintiff refused to surrender its bearer bonds on its part for this amount, and for this reason the judgment granted costs and disbursements to the defendant.

This appeal involves the question whether the joint resolution of the Congress (48 U. S. Stat. 112), which in broad terms nullifies clauses in contracts requiring payment in gold of a certain standard of weight and fineness, applies to an action on a foreign bond requiring such payment, issued and payable in dollars in the United States, where both plaintiff creditor and defendant debtor are non-residents of the United States.

The plaintiff, a foreign corporation domiciled in South America, brought this action to recover the sum of $5,307.99, with interest, by reason of its ownership and possession of three $1,000 first mortgage collateral seven per cent sinking fund gold bonds of the Industrial Mortgage Bank of Finland, a foreign corporation domiciled in Finland, the defendant herein. The bonds are bearer bonds and payment is promised “ in gold coin of the United States of America of the standard of weight and fineness as it existed on July 1, 1924.” These bonds were issued in New York by the defendant and first became valid obligations in the hands of Lee, Higginson & Co., a domestic copartnership, paying agents of the defendant, pursuant to a trust agreement made between the defendant and the New York Trust Company, in the borough of Manhattan, city and State of New York. Both the principal and interest of these bonds are payable at the office of Lee, Higginson & Co., in the borough of Manhattan, city of New York, or at other specified places in the United States. The defendant has exercised its option to redeem these bonds at 101 on an interest day, namely, July 1, 1934. The bonds are guaranteed by the government of Finland but this action is not against the guarantor.

The contract was made in New York and the bonds are payable and the entire performance of the contract is to take place in the United States. If no other intention is revealed, it must be taken that it was intended by the parties that United States law should be applicable to this contract. The intention of the parties, express or implied, generally determines the law that governs a contract. (Wilson v. Lewiston Mill Co., 150 N. Y. 314; Vander Horst v. Kittredge, 229 App. Div. 126, 132. Cf. Sokoloff v. National City Bank, 239 N. Y. 171.) Moreover, in the absence of a revealed intention, if a contract is made and is to be performed in the same place, it is held that the law of that place governs. (Benton v. Safe Deposit Bank, 255 N. Y. 260; Hutchinson v. Ward, 192 N. Y. 375. See Curtis v. Leavitt, 15 N. Y. 2, 227.) True it is that the applicable substantive law is that existing at the time the contract is entered into, but where a constitutional law has been enacted subsequently, such law if announcing a public policy and intended to apply by the Congress, is also applicable to the contract.

Although we find that New York or United States law is applicable generally to this contract, we must consider the effect of the provision of the contract fixing a definite standard or measure of value in an attempt to prevent a depreciation in payment as a result of any national law devaluing the dollar.

We are thus brought directly to the question of the applicability of the joint resolution of the Congress to this ■ controversy. In passing, it is to be noted that this action is not concerned with sovereigns but with individuals.

A foreign, private corporation of Colombia is suing a foreign private corporation of Finland. The defendant bank is a private institution, and not a governmental agency. The fact that the government of Finland guarantees the bonds is immaterial here, since the suit is being brought against the defendant bank, the principal obligor, and not against the guarantor.

At the outset, when the obligation of the bonds in suit was created it was then sanctioned by law, subject, however, to the power of the Congress to withdraw a part of that sanction pursuant to its power to regulate the monetary system. (Norman v. B. & O. R. R. Co., 294 U. S. 240.) If the claim of the plaintiff succeeds, the effect is to subject a citizen to such power of the Congress but to exempt a foreign debtor. The latter may disclaim the application of the joint resolution but this right is denied to a domestic debtor. Also, to the extent that the plaintiff succeeds, it means to that extent there is here < created a dual monetary system. If such result was within the power of the Congress to avoid, then its failure so to do appears unreasonable.

We are, therefore, only concerned with whether the Congress possessed the power to make and intended the joint resolution to bring within its terms the obligations at bar. Was the congressional intention to leave open for enforcement in our courts to foreign debtors the privilege of borrowing money and guaranteeing a fixed repayment against the dangers of inflation, while like privileges were denied domestic debtors? To that extent should there be inaugurated in the United States a dual monetary system, when the express purpose of the joint resolution was to have a single monetary system, where every dollar would be at parity in the payment of debts?

In considering more particularly the language of the joint resolution, we find the express wording sufficiently broad to apply to the obligations herein of this defendant. The text of the joint resolution, including the preamble, is, in part, as follows:

To assure uniform value to the coins and currencies of the United States.
“ Whereas the holding of or dealing in gold affect the public interest, and are therefore subject to proper regulation and restriction; and
Whereas the existing emergency has disclosed that provisions of obligations which purport to give the obligee a right to require payment in gold or a particular kind of coin or currency of the United States, or in an amount in money of the United States measured thereby, obstruct the power of the Congress to regulate the value of the money of the United States, and are inconsistent with the declared policy of the Congress to maintain at all times the equal power of every dollar, coined or issued by the United States, in the markets and in the payment of debts. Now, therefore, be it
Resolved by the Senate and House of Representatives of the United States of America in Congress assembled, That (a) every provision contained in or made with respect to any obligation which purports to give the obligee a right to require payment in gold or a particular kind of coin or currency, or in an amount in money of the United States measured thereby, is declared to be against public policy; and no such provision shall be contained in or made with respect to any obligation hereafter incurred. Every obligation, heretofore or hereafter incurred, whether or not any such provision is contained therein or made with respect thereto, shall be discharged upon payment, dollar for dollar, in any coin or currency which at the time of payment is legal tender for public and private debts.” (48 U. S. Stat. 112.)

The above so clearly and unambiguously covers the bonds in suit as to leave no occasion for construction. Such language shows unmistakably that the Congress has consciously drawn the joint resolution so as to apply to foreign debtors. If it be urged that the normal meaning of the terms employed does not cover the bonds in suit, then justification for such conclusion must be found in sources other than the language of the statute.

Furthermore, the intention of the Congress, as revealed by the preamble to the joint resolution quoted above, covers the obligations of foreign debtors. This preamble recites two facts as giving rise to the joint resolution, namely: Provisions of obligations which purport to give the obligee a right to require payment in gold or a particular kind of coin or currency of the United States, or in an amount in money of the United States measured thereby, obstruct the power of the Congress to regulate the value of the money * * And secondly: Are inconsistent with the declared policy of the Congress to maintain at all times the equal power of every dollar * * * in the markets and in the payment of debts.” Whether the enforcement of these obligations lies at the hands of foreign or domestic debtors, the result is the same and this enforcement has been declared by the Congress to be destructive of the power and the policy of the Congress in its regulation of the money of the United States. The enforcement of gold clauses in foreign dollar bonds clearly would prevent the Congress from maintaining all forms of money of the United States at a parity of value. In other words, to enforce gold clauses in foreign dollar bonds and not in domestic bonds would, in effect, be the equivalent of maintaining, in some degree at least, a dual monetary system. Our history reveals in at least one instance a dual monetary system which was subsequently ended and thereafter Congress inaugurated a consistent legislative policy to prevent a recurrence of the evils of such a system.

In 1862, when the first Legal Tender acts were passed (12 U. S. Stat. 259 [1861], 338, 345, 370), the United States entered upon a dual monetary system which continued for some years thereafter. Then “ one dollar in coin was equivalent * * * to two dollars and a quarter in United States notes.” (Bronson v. Rodes, 7 Wall. [U. S.] 229, 230.) This system ended when the country resumed specie payments in 1879. In 1893 Congress passed its first parity legislation, aimed at preventing the recurrence of the evils of the dual monetary system (Act dated Nov. 1, 1893; 28 U. S. Stat. 4). Thereafter the Parity Act of March 14, 1900, was enacted (U. S. C., title 31, § 314; 31 U. S. Stat. 45). Lastly, there is the Agricultural Act of May 12, 1933 (48 U. S. Stat. 31, 51-53). The joint resolution merely stated more specifically that which had already been enacted under the Agricultural Act (May, 1933).

The intention of the Congress to cover by the joint resolution both domestic and foreign debtors is revealed also by the following: In committee, Senator Carter Glass offered an amendment to the joint resolution, expressly exempting foreign obligations from the coverage of the joint resolution. This amendment was lost in committee. Senator Fletcher, the chairman of the Committee on Banting and Currency, which reported the joint resolution, clearly urged the necessity for putting all classes of dollar bonds on the same footing: The situation cannot be met merely by enabling new obligations to be payable in legal tender without creating a difference in value between the old and the new obligations and impairing or destroying the market for new obligations. Investors would no doubt prefer private obligations with a gold clause to Government obligations payable in currency. In other words, we cannot make a distinction. The moment bonds or certificates or notes are offered to the public payable in legal tender, with outstanding obligations of the Government payable in gold, it will be seen that investors would rush to the gold obligations and call for that sort of security and would not take the new certificates or the new debentures or the new bonds or the new obligations. It will interfere both with financing of the Government and financing of private enterprise. We would pass two different kinds of currency if we were to attempt that.” (Vol. 77, Cong. Rec. pt. 5, p. 4890, June 3, 1933).

The following quotation from Noman v. B. & O. R. R. Co. (supra) not only sets forth the intention of the Congress, as expressed in the joint resolution, but also finally disposes of any contention that the application of the joint resolution violates the due process clause of the Constitution of the United States: “We are concerned with the constitutional power of the Congress over the monetary system of the country and its attempted frustration. Exercising that power, the Congress has undertaken to establish a uniform currency, and parity between kinds of currency, and to make that currency, dollar for dollar, legal tender for the payment of debts. In the light of abundant experience, the Congress was entitled to choose such a uniform monetary system, and to reject a dual system, with respect to all obligations within the range of the exercise of its constitutional authority. The contention that these gold clauses are valid contracts and cannot be struck down proceeds upon the assumption that private parties, and States and municipalities, may make and enforce contracts which may limit that authority. Dismissing that untenable assumption, the facts must be faced. We think that it is clearly shown that these clauses interfere with the exertion of the power granted to the Congress and certainly it is not established that the Congress arbitrarily or capriciously decided that such an interference existed ” (p. 316).

The joint resolution has thus revealed clearly the intention of the Congress to regulate the kind and amount of the currency wherewith the obligation may be discharged, as a matter of public policy in this jurisdiction. The parties to a contract may not by their intention, however expressed, override the laws of the country in which suit is brought when a matter of the public policy of that country is involved. Even comity with the laws of another jurisdiction never extends to the enforcement of a law of that jurisdiction which violates a positive law of the country wherein suit is brought and is contrary to its public policy. (American Law Institute, Restatement of the Law of Conflict of Laws, p. 440; DeBeéche v. South American Chilean Stores, Ltd., [1935] A. C. 148.) Consequently, it becomes immaterial whether the obligations of these bonds would otherwise be governed by some foreign law. In view of this, does any question of lack of power remain? The answer must be in the negative because of the language of the Chief Justice in Norman v. B. & O. R. R. Co. (supra): “ The broad and comprehensive national authority over the subjects of revenue, finance and currency is derived from the aggregate of the powers granted to the Congress * * * ” (p. 303).

Modem decisions in foreign jurisdictions have likewise affirmed the joint resolution as a defense in actions brought for relief identical with that in the case at bar. (Amsterdam Stock Exchange Committee v. Bataafsche Petroleum Maatschappij, Court of Appeal at The Hague, Jan. 15, 1935; Amsterdam Stock Exchange Committee v. Royal Dutch Co., Court of Appeal at The Hague, Jan. 15, 1935; International Federal Loan of Austria, [1930 American Section] Bezirksgericht, Innere Stadt Wein, March 1, 1934, Die Rechtsprechung 83 [1934]; Soderberg v. Telephone Co. of Copenhagen, Superior Court for the Eastern District of Denmark, Feb. 3, 1934; Vereinigte Stahlwerke, German Appellate Court of Cologne; Matter of International Trustee for Protection of Bondholders of Aktiengesellschaft, High Court of Justice, Kings Bench Division, November, 1935.)

In Amsterdam Stock Exchange Committee v. Bataafsche Petroleum Maatschappij (supra) a stock exchange commission of Amsterdam which represented individual Dutch holders of bonds of the defendant, a Dutch corporation, brought an action, as in the case at bar, to enforce dollar gold bonds issued and made payable in New York. The court held that the joint resolution was a defense to an attempt to collect in Holland the gold value of these bonds. So too in the other cases cited.

From the foregoing it is clear that the Congress, pursuant to its constitutional power over the currency, has prevented a recurrence in the history of the country of a dual monetary system made possible because of the reduction in the gold content of the dollar, by applying the joint resolution equally to foreign and domestic dollar bonds payable in the United States.

The judgment should be affirmed, with costs. (See 269 N. Y. 602.)

Crane, Ch. J., O’Brien, Hubbs, Crouch and Lough-ran, JJ., concur; Lehman, J., not sitting.

Judgment affirmed.


author: Hubbs, J.

text:
    In the Matter of William Sanger et al., Respondents, against Frederick S. Greene, as Superintendent of Public Works of the State of New York, et al., Appellants.

      (Argued October 9, 1935;
    decided November 19, 1935.)

      John J. Bennett, Jr., Attorney-General (Henry Epstein and Patrick H. Clune of counsel), for appellants.
    The reclassification of positions, titles and salaries was proper, valid and legal. (Matter of Ottinger v. Civil Service Comm., 240 N. Y. 435; Matter of Weeks v. Kraft, 147 App. Div. 403; Matter of Simons v. McGuire, 204 N. Y. 253; Chittenden v. Wurster, 152 N. Y. 345; Matter of Spivak v. Delaney, 264 N. Y. 91; Story v. Craig, 231 N. Y. 33; People ex rel. Murphy v. Bingham, 130 App. Div. 112; 196 N. Y. 519.)

      John T. De Graff for respondents.
    The reclassification has never been legally authorized by the Legislature. (Matter of Shepherd v. Greene, 153 Misc. Rep. 289; People v. Tremaine, 252 N. Y. 27.) The attempt to promote other employees by the reclassification was illegal and void. (N. Y. Const, art. Y, § 6; Cons. Laws, ch. 7, § 16; Hale v. Worstell, 185 N. Y. 247; Matter of Weiher v. Greene, 239 App. Div. 652; Matter of Ryan v. Kaplan, 213 App. Div. 131; 240 N. Y. 690; Thoma v. City of New York, 263 N. Y. 402; Barlow v. Berry, 245 N. Y. 500; Schieffelin v. Kelliher, 125 Misc. Rep. 305; 215 App. Div. 770; Matter of Barthelmess v. Cukor, 231 N. Y. 435; People ex rel. Holleran v. Creelman, 148 App. Div. 121; People ex rel. Perrine v. Connolly, 217 N. Y. 570; Matter of Ottinger v. Civil Service Comm., 240 N. Y. 435.) The Civil Service Commission has power to make a limited reclassification but it cannot authorize promotions, demotions and transfers expressly prohibited by the Constitution and the Civil Service Law. (Story v. Craig, 231 N. Y. 33; People ex rel. Rudd v. Cropsey, 215 N. Y. 451; Matter of O’Connell v. Clark, 200 App. Div. 606; Matter of Gilfalian, 127 App. Div. 846; Matter of Owens, 76 Misc. Rep. 610; Hale v. Worstell, 185 N. Y. 247.)

      H. Eliot Kaplan for State Civil Service Employees Association of the State of New York, amicus curiae.

    The Civil Service Commission has broad power to classify positions. (Hale v. Worstell, 185 N. Y. 247; Matter of Barthelmess v. Cukor, 235 N. Y. 435.)
   Hubbs, J.

Prior to July 1, 1934, petitioners were employed in the State Department of Public Works, Division of Architecture, as senior architects, grade 7. At the same time three other men were also employed in the same division as senior architects, grade 7. The Legislature, in the appropriation bill for the year 1934-1935, cut the appropriation for the Division of Architecture, and certain senior architects, petitioners included, were suspended. They bring this proceeding to compel reinstatement as of July 1, 1934, asserting that they possess seniority rights over the three architects referred to above, but who nevertheless were retained in the service. Petitioners allege that they and the three architects referred to were originally appointed under the title architectural draftsman or designer, grade 7; that the three architects above referred to were subsequently appointed to positions as associate architects, those positions prior to July 1, 1934, being listed under the title, chief of projects;” that the appointment of the three men named to positions as associate architects was illegal and void, and that at the time of the suspension petitioners occupied the same position as did the three architects referred to although the latter were no longer called senior architects as were petitioners, but were then called associate architects, positions in grade 7, that being the grade in which petitioners as senior architects were listed.

Prior to July 1, 1932, grade 7 included three classes of employees, listed in the Civil Service rules as follows: Architectural draftsman or designer, chief of projects, assistant chief draftsman.

The specified salary for each of the positions was $3,250 or over, no maximum being fixed. In the appropriation bill for the year 1932-1933 the title of architectural draftsman or designer was changed to that of senior architect, that of chief of projects to associate architect, and that of assistant chief draftsman to that of principal architect. The change was in name only, the grade, salary range, duties and qualifications remaining unchanged. The change in name resulted from the report in 1931 of the Joint Legislative Committee on Classification of Positions in the Civil Service, certain titles of positions recommended in- that report being used in the appropriation bill. The changes in titles of the positions above referred to involved no changes in the positions with respect to qualification of incumbents, duties or otherwise. That there is any difference in the duties of and qualifications for the position of architectural draftsman or designer (the former title) from those of and for the position of senior architect (the new title) is not suggested. The question for consideration is whether the change of titles of positions in the appropriation bill for 1932 from the titles formerly used resulted in or was used to bring about to the damage of petitioners a transfer of the three architects referred to from positions as architectural draftsmen or designers (new title, senior architect) to positions as chiefs of projects (new title, associate architects). All that occurred was the men referred to, who previously had served as architectural draftsmen or designers and who became, through the change of title senior architects, were shortly after July 1, 1932, assigned to positions as associate architects, positions which prior to July 1, 1932, were vacant but listed under the title chief of projects.

When the budget for the year 1932 was prepared and the appropriation bill enacted, the report of the Joint Legislative Committee was before the Budget Director and the Legislature and the titles of a large percentage of the positions included were made to accord with the titles suggested in the report. Section 12 of the appropriation bill reads as follows:

§ 12. Whenever in this act an appropriation is made for personal service during the fiscal year nineteeh hundred and thirty-two in any office or position in the classified civil service of the state, by or under a title recommended by the joint legislative committee on classification of positions in the civil service that is different from the title in effect prior thereto, the incumbent of such position, under its present title on June thirtieth, nineteen hundred and thirty-two, shall thereafter be deemed to have in such position, under its new title the status and all the rights and obligations he would have had if he had been appointed originally under the civil service law to the position under its new title as provided in this act. But such incumbent may be transferred or promoted without further examination or certification to any vacancy existing in a position of a different title, involving no higher or different requirements, in the judgment of the civil service commission, from those that he has met through examination and appointment under the civil service law. No part of this act shall be construed to effect, of itself, a transfer of any position not heretofore included in the competitive class of civil service to such class. Where the previously existing title, in any such case, is prescribed in the consolidated laws or in a statute not of a temporary nature, this act shall not be deemed to create a new or additional office or position and the appropriation in this act shall be deemed to be for service in such statutory office or position regardless of the title. In identifying and connecting any officer or employee with his office or position, for the purposes of this section, the state comptroller, the civE service commission, and the heads of departments shall be governed by the class lists of positions with their proposed titles by classes as recommended by the joint legislative committee aforesaid, as certified to them by the director of the budget, and such lists so certified shall have the force and effect of law for such purposes.”

The appropriation bill, chapter 25, Laws of 1932, became a law on February 26, 1932. Undoubtedly the appropriation bill was effective as an appropriation of moneys for positions previously properly established and classified according to law though therein designated under new names and constituted full authority for the certification of payrolls under the new appropriation titles in so far as those titles were used to designate positions so previously established and classified under different titles. In so far as section 12 may have been intended by the Legislature as a reclassification of positions and to provide for appointments or promotions in a reclassified service, it must be held ineffective.

In April, 1932, the State Civil Service Commission passed a resolution which may be divided into two parts:

First, “All provisions of the Stats Civil Service Rules insofar as they require promotion examinations in the cases of any persons holding positions in the competitive class of the Civil Service of the state whose title is changed on July 1, 1932, under Chapter 25 of the Laws of 1932, be and hereby are suspended,” and
Second, “ The State CivE Service Commission is hereby authorized to accept such change in title without examination when the same involves only change in title without change in duties.”

That the second part of the resolution was designed to eliminate any question as to the requirement for an examination for continuance of an employee in a position where chapter 25 had designated the existing position under a new title but without change in duties is clear.

The first part of the resolution must be held to have been intended to constitute a suspension of all provisions of the State Civil Service rules in so far as they theretofore required promotion examinations in the cases of any persons holding positions in the competitive class where title to the position then held was changed by chapter 25. In other words, the intent was not only to eliminate, by the second part of the resolution, examination of an incumbent of a position given a new title to enable him to continue in the position under the new title, but also by the first part of the resolution to eliminate by suspension of existing rules, examinations for promotion to other positions in the cases of all employees holding positions where titles to the positions held were changed by chapter 25.

The resolution as a whole can be given effect only in so far as it was within the power of the Commission under the Constitution and the Civil Service Law (Cons. Laws, ch. 7) to adopt the same. It, therefore, becomes necessary to determine the extent of the power of the Commission to adopt and suspend rules with respect to examinations for promotions.

The Constitution provides that appointments or promotions must be made according to merit and fitness to be ascertained, so far as practicable, by examinations, which, so far as practicable, shall be competitive.” (Art. V, § 6.)

The Legislature may, in creating a position, determine that it is not practicable to ascertain fitness by examination, but in such case there must appear some ground for its determination. The Legislature has, in the "Civil Service Law, divided the civil service into the classified civil service and the unclassified civil service. (§ 9.) The Civil Service Commission has the power to “ make rules for the classification of the offices, places and employments in the classified service * * * and for appointments and promotions therein and examinations therefor.” (§ 10.) All offices shall be arranged in four classes to be designated as the exempt class, the competitive class, the non-competitive class, and, in cities, the labor class.” (§ 12.) Sections 13 and 16 provide what positions shall be included in these classes and how appointments and promotions may be made.

The duty of arrangement of offices in classes is delegated by the Legislature to the Commission. The classification as made by the Commission divides positions into grades according to salary range and specifies different positions with different titles within certain of the grades. The positions in a grade are placed by the Commission in different classes with duties varying in importance. Salaries for the positions so classified by the Commission are provided for in the annual appropriation bill upon recommendation of the department heads and with the approval of the Budget Director, the appropriation usually being in a certain amount for a certain number of positions in a grade and class in a particular department, and except where a salary is specifically fixed by the appropriation bill the amount paid the incumbent of a particular position is dependent upon the certification of the department head within the salary range fixed by the Commission and the appropriation made. A transfer from one position within a grade to another in the same grade with more important duties and with larger salary is regarded in a sense as a promotion. Such, however, is not the statutory meaning of the term. The statute reads: for the purposes of this section an increase in the salary or other compensation of any person holding an office or position within the scope of the rules in force hereunder beyond the limit fixed for the grade in which such office or position is classified, shall be deemed a promotion.” (Civil Service Law, § 16.)

The statute makes an increase in salary of a position beyond the limit fixed for the grade in which the position is classified a promotion. It does not provide that a transfer from a position in a class in a certain grade to a more important position with a higher salary in the same grade in a different class shall constitute a promotion. Whether the Civil Service Commission has power to order examinations for transfer from one position to another in the same grade but in different classes where the two positions involve different duties and different salaries need not be decided in the case at bar. We are referred to no rule which required a promotion examination in the case of a transfer from the position of architectural draftsman or designer (now, senior architect) to chief of projects (now, associate architect). The only suggestion that such a rule ever existed arises from the fact that an examination was held in 1932. If it be assumed that such a rule was in force prior to the adoption of the resolution of the Civil Service Commission above referred to and that the adoption of such a rule was within the power of the Commission, there being no statutory requirement therefor, the power of the Commission to suspend the rule was co-extensive with its power to adopt it and the power to suspend it was exercised by the adoption of the resolution in question. It must, therefore, be held that on the date of the appointment to the position of associate architect of the three men referred to no rule was in force or was required to be in force making it necessary that a promotion examination be held.

We have heretofore held in a case where no promotion examinations were required by law or rule of the Commission that a transfer from one position to another in the same salary grade may be made by the appointing officer as he sees fit. (Thoma v. City of New York, 263 N. Y. 402.)

The three men referred to, having been assigned to their duties as associate architects through action on the part of the Superintendent and not through any change wrought by the appropriation bill, and there having been no requirement for an examination in connection with the transfers, legal rights of the petitioners were not violated by the transfers.

The effect of such transfers upon the seniority rights of the petitioners presents a different question. If, where curtailment of the service becomes necessary, transfers from class to class within a grade where no examinations are required violate the seniority rule, then petitioners, having greater seniority rights, are entitled to reinstatement in view of the retention in service of the three men having less seniority rights.

That the applicability of the seniority rule is limited, not only to positions in the same salary grade but to positions within the particular salary grade alike in the character of duties required of the employee, was the view taken by the Supreme Court in Matter of Shepherd v. Greene (153 Misc. Rep. 289), the only court which apparently has directly passed upon the question. There a sanitary draftsman, whose title was changed to that of junior plumbing engineer, upon abolition of his position was held not entitled to maintain mandamus proceedings based upon retention in service of other employees classified under various titles, whose seniority rights were less than petitioner’s, it not appearing that the duties of the positions were the same as those of sanitary draftsman. That it is the duties of a position which constitute the basis of classification within a grade in so far as seniority rule is concerned, seems to be recognized in Matter of Albert v. Board of Education (264 N. Y. 613), where it was held that petitioners, employees of one bureau of a department, might compel reinstatement to a position in another bureau involving the same duties where such positions in tjie other bureau were occupied by employees with less seniority rights.

If the seniority rule were to be given the effect contended for by the petitioners herein, it would necessarily result in the serious impairment of a branch of the State service. While all of the employees in a certain salary grade may originally be taken into that grade through the possession of like qualifications and as a result of similar tests, upon their induction into the service they may be assigned to work entirely different in character as between particular positions occupied, and may possess certain personal qualifications and characteristics which are recognized by their superiors as fitting them for the particular positions to which they are assigned. While it is undoubtedly proper that seniority rights should be observed where the duties of positions actually occupied are similar, it does not follow that those rights should be permitted to be exercised where the duties of positions differ though within the same salary grade.

The petitioners herein have not established that the duties of the position of senior architect are the same as those of the position of an associate architect. The record is to the contrary. They must, therefore, be held not entitled to the relief asked.

The orders should be reversed and the petition dismissed, without costs. (See 269 N. Y. 613.)

Lehman, O’Brien, Crouch, Loughran and Finch, JJ., concur; Crane, Ch. J., dissents.

Orders reversed, etc.


author: Htjbbs, J.

text:
    In the Matter of Irving R. Brown, Respondent, against Frederick S. Greene, as Superintendent of Public Works of the State of New York, et al., Appellants.
    (Argued October 9, 1935;
    decided November 19, 1935.)

      John J. Bennett, Jr., Attorney-General (Henry Epstein and Patrick H. Clune of counsel), for appellants.
    The suspension of petitioner, his demotion in position and reduction in salary, because of lack of work, lack of funds, and inefficiency, were necessary, proper and legal. (Opinion of Attorney-General, 1932, p. 212.)

      John T. De Graff for respondent.
    Changes which constitute reductions or demotions in title or salary without regard to seniority are illegal unless authorized by the Legislature. (Thoma v. City of New York, 263 N. Y. 402; Walters v. City of New York, 190 N. Y. 375; People ex rel. Callahan v. Board of Education, 174 N. Y. 169; Matter of McCarthy v. Board of Education, 106 Misc. Rep. 193; People ex rel. Satterlee v. Board of Police, 75 N. Y. 38; People ex rel. Strahan v. Feitner, 49 App. Div. 101; Matter of Hurlbut, 88 Misc. Rep. 679; Skrocki v. Greene, 242 App. Div. 226; Matter of Albert v. Board of Education, 264 N. Y. 613.)
   Htjbbs, J.

The same questions are presented in this case as in Matter of Sanger v. Greene (269 N. Y. 33, decided herewith.) There is also another question involved which necessitates a reversal in this case. Petitioner was appointed an architectural draftsman or designer in grade 7 in the Department of Public Works on January 31, 1930, at a salary of $3,800 per year, as the result of a competitive examination. On July 1, 1931, while still in grade 7, his salary was reduced to $3,500 per year. The minimum salary in grade 7 as established by the State Civil Service Commission was $3,240, no maximum. July 1,1932, his salary was again reduced to $3,000 per year. Such reduction demoted him from grade 7 to grade 6, under the title of assistant architect. Later his title became that of senior architect but he was not given the salary of a senior architect which would have placed him in grade 7. The reduction of salary from $3,500 annually to $3,000 annually and the change of title constituted more than a transfer as to duties in the same grade at a reduced salary. The transfer from a higher to a lower grade at a reduced salary below the minimum salary of the higher grade constituted a demotion. (Thoma v. City of New York, 263 N. Y. 402.)

Petitioner does not complain in this proceeding about being demoted from grade 7 to grade 6, but asks to be restored to his position in grade 6.

It may be if his juniors in service in grade 6, performing like duties, have been retained and he has been relieved, the retention of his juniors violated his seniority rights and he is entitled to be reinstated. (Matter of Schaefer v. Rathmann, 237 App. Div. 491; affd., 262 N. Y. 492.)

The petitioner alleges that he performed the same duties as did three senior architects, grade 7, who were retained in the service. He has not alleged nor does he prove that he performed the same duties as did six assistant architects, grade 6, whose retention in service has been held by the courts below to be a violation of the seniority rights of petitioner. As determined in Matter of Sanger v. Greene, decided herewith, it is essential in a proceeding of this nature that There be proof as to similarity of duties of positions in different classes within a salary grade before mandamus can be granted for an alleged violation of seniority rules.

The orders should be reversed and the petition dismissed, without costs. (See 269 N. Y. 613.)

Lehman, O’Brien, Crouch, Loughran and Finch, ' JJ., concur; Crane, Ch. J., dissents.

Orders reversed, etc.


author: O’Brien, J.

text:
    In the Matter of Brooklyn Edison Company, Inc., Respondent, against Maurice P. Davidson, as Commissioner of Water Supply, Gas and Electricity of the City of New York, Appellant.
    (Argued October 9, 1935;
    decided November 19, 1935.)

      Paul Windels, Corporation Counsel (Joseph L. Weiner and Arthur A. Segall of counsel), for appellant.
    A transformer is not a conductor within the meaning of the Transportation Corporations Law (Cons. Laws, ch. 63; Ghee v. Northern Union Gas Co., 158 N. Y. 510.)

      Jacob H. Goetz, Thomas H. Beardsley and John D. Monroe for respondent.
    The enforcement of the resolution of the Board of Commissioners of the Sinking Fund would impair the obligation of respondent’s franchise rights. (People ex rel. Electric Lines Co. v. Squire, 145 U. S. 175; People ex rel. N. Y. Electric Lines Co. v. Ellison, 188 N. Y. 523; 201 N. Y. 321; United States Ill. Co. v. Grant, 55 Hun, 222; Matter of City of New York v. Prendergast, 202 App. Div. 308; White v. N. Y. C. & H. R. R. R. Co., 90 App. Div. 356; 181 N. Y. 577; Kleffman v. Dry Dock Co., 104 App. Div. 416; Holmes Elec. Protective Co. v. Williams, 228 N. Y. 407; Union Ry. Co. v. City of New York, 238 N. Y. 289; People ex rel. Ostrander v. Chapin, 105 N. Y. 309; Bliss v. Greeley, 45 N. Y. 671; People ex rel. Woodhaven Gas Co. v. Deehan, 153 N. Y. 528; Brooklyn Heights R. R. Co. v. City of Brooklyn, 152 N. Y. 244; Wooley v. Grand Street & Newtown R. R. Co., 83 N. Y. 121; Hudson River Tel. Co. v. Watervliet Turnpike Ry. Co., 135 N. Y. 393; People ex rel. Perceval v. Public Service Comm., 163 App. Div. 705; Allegheny Light Co. v.
      Booth, 216 Penn. St. 564; Cooper stone v. Brooklyn Edison Co., 128 Misc. Rep. 216.)
   O’Brien, J.

Petitioner applied to the Commissioner of Water Supply, Gas and Electricity of the city of New York for permits for the construction of transformer manholes and the installation of transformers in fifteen locations in and under public streets in the borough of Brooklyn. That official denied the application for the reason, as stated by him, that he possessed no authority to issue any permit except upon compliance by petitioner with a resolution of the Commissioners of the Sinking Fund adopted January 16,1935, in relation to the installation of transformer vaults. Thereupon petitioner moved for an order of mandamus, peremptory or alternative, to compel him to issue the permits. The court at Special Term granted the motion for an alternative order of mandamus, but the Appellate Division reversed, granted the motion for a peremptory order and directed the Commissioner to issue the permits. In so far as that court decided that the record discloses no triable issue under an alternative order we agree. The question, as we conceive it, is wholly one of law.

Petitioner bases its right to permits for the construction of these manholes or vaults and the installation of transformers therein on the proposition that such a transformer constitutes a “ conductor with the necessary fixtures ” within the meaning of section 11, subdivision 3, of the Transportation Corporations Law (Cons. Laws, ch. 63). This statute authorizes an electric corporation “ fop transmitting and distributing electricity, to lay, erect and construct suitable wires or other conductors, with the necessary poles, pipes or other fixtures in, on, over and under the streets * * * with the consent of the municipal authorities thereof, and in such manner and under such reasonable regulations, as they may prescribe.” The administrative official of the city of New York who is designated to exercise authority in respect to the laying of electrical conductors is the Commissioner of Water Supply, Gas and Electricity. (Greater New York Charter, Laws of 1901, ch. 466, §§ 526, 528.)

Although a transformer may be said to conduct in the sense that by means of its operation electricity is incidently transmitted through it and is transferred and distributed, its primary function consists in the process of reducing and converting from a high to a lower potential. The instrument or machine, which petitioner seeks to install beneath the surface of public highways within a concrete and reinforced steel vault sixteen feet, eleven inches long by four feet, six inches wide and eight feet deep, is described as a 500 KVA transformer which with its equipment, is estimated to weigh upwards of five tons. The question of law requires an answer whether an instrumentality of this character was intended by section 11, subdivision 3, of the Transportation Corporations Law to be included within the expression wires or other conductors, with the necessary poles, pipes or other fixtures in, on, over and under the streets.”

The statutory history of section 11, subdivision 3, of the present Transportation Corporations Law is a long one. In order to expose the meaning of the words conductors ” and “ other fixtures ” when used with the words poles ” and “ pipes,” the provisions of this enactment must be considered in relation to the purpose of the statutes from which it is derived (Laws of 1879, ch. 512, § 2; Laws of 1881, ch. 483, § 1; Laws of 1884, ch. 534; Laws of 1885, ch. 499, §§ 2, 3, 4; Laws of 1890, ch. 566, § 61; Laws of 1899, ch. 565, § 1; Laws of 1900, ch. 575, § 2; Laws of 1902, ch. 596, § 1; Laws of 1909, ch. 219; Laws of 1920, ch. 540; Laws of 1923, ch. 539). Those statutes, as well as the provisions of sections 526 and 528 of the Greater New York Charter, demonstrate a clear intent to legislate in respect to overhead construction and subsurface construction of instrumentalities for transmitting electric current. For transmission above ground wires or cables and “ poles ” are the appliances; for transmission below the surface, wires or cables and pipes or. other fixtures ” are the channels which the Legislature had in mind. The other fixtures,” that is, the fixtures other than pipes, must be regarded as the conduits or electrical subways within which the wires or cables are inclosed. The conductors as used in all these statutes must be deemed to include only those media the primary function of which is transmission. To transmit rather than to reduce, transform or convert is the purpose of wires and cables and it is in this sense that we think the word conductor ” was employed in this legislation. A pole is a fixture ” for supporting the conductor; a pipe or a conduit is a “ fixture ” for inclosing it. To infer that equipment such as these 500 KVA transformers was within the contemplation of the Legislature is difficult. We must hold as matter of law that these transformers are neither conductors nor other fixtures within the meaning of section 11, subdivision 3, of the Transportation Corporations Law, and that the facts shown in respect to installation of similar equipment are not sufficient to bring the case within the application of the rule of practical construction. The franchise of petitioner is not so broad as to authorize it to occupy the public highways with the equipment which it now seeks to install. Its remedy is by an application to the Board of Estimate and Apportionment for the exercise of the powers of that municipal agency vested in it by section 242 of the Greater New York Charter (L. 1901, ch. 466, as amd.).

The orders should be reversed and the petition dismissed, with costs in all courts to appellant. (See 269 N. Y. 678.)

Crane, Ch. J., Lehman, Hubbs, Crouch, Loughran and Finch, JJ., concur.

Orders reversed, etc.


text:
    Will Lee, as Administrator of the Estate of Josie Lee, Deceased, Appellant, v. Pennsylvania Railroad Company, Respondent.
    (Argued October 11, 1935;
    decided November 19, 1935.)

      Harold J. Tillou for appellant.
    There was ample proof of negligence on the part of the defendant. (Starr v.
      N. Y. C. R. R. Co., 261 N. Y. 348; Panarese v. Union Ry. Co., 261 N. Y. 233; Woloszynowski v. N. Y. C. R. R. Co., 254 N. Y. 206; Caledonian Ins. Co. v. Erie R. R. Co., 219 App. Div. 685; Bragg v. Central N. E. Ry. Co., 228 N. Y. 54; Frazier v. Reiman, 230 App. Div. 394; Kolanka v. Erie R. R. Co., 215 App. Div. 82; O’Brien v. Erie R. R. Co., 210 N. Y. 96; Barnett v. N. Y. C. R. R. Co., 227 App. Div. 636; Grippen v. N. Y. C. R. R. Co., 40 N. Y. 34; Morris v. Railway Co., 148 N. Y. 182; Spooner v. D., L. & W. R. R. Co., 115 N. Y. 22; Chrystal v. Troy & Boston R. R. Co., 105 N. Y. 164; Salter v. Utica & Black River R. R. Co., 88 N. Y. 42; Cordell v. N. Y. C. R, R. Co., 70 N. Y. 119; Dyer v. Erie R. R. Co., 71 N. Y. 228; Gilliland v. D. & H. R. R. Co., 207 App. Div. 509.)

      Harold J. Adams and Percy R. Smith for respondent.
    There was no proof of negligence on the part of the defendant. (Bragg v. Central N. E. Ry. Co., 152 App. Div. 444; Wright v. Union Ry. Co., 224 App. Div. 55; 250 N. Y. 526; Starr v. N. Y. C. R. R. Co., 261 N. Y. 348; Panarese v. Union Ry. Co., 261 N. Y. 233; Woloszynowski v. N. Y. C. R. R. Co., 254 N. Y. 206; O’Brien v. Erie R. R. Co., 210 N. Y. 96; Albrecht v. Rochester, S. & E. R. R. Co., 205 N. Y. 230; Caledonian Ins. Co. v. Erie R. R. Co., 219 App. Div. 685; Kawacz v. D., L. & W. R. R. Co., 259 N. Y. 166; Harrington v. N. Y. C. R. R. Co., 254 N. Y. 617.)
   O’Brien, J.

A car owned and driven by a brother of Josie Lee, who was one of its occupants, overturned on defendant’s tracks at a point where they cross a highway. The others were able to extricate themselves from the car before defendant’s train bore down upon it, crushed it and killed Josie Lee, the sole remaining occupant, The collision occurred a few minutes before sunrise in August. There is evidence that daylight had broken, the track was straight for a mile, nothing obstructed the vision between the train and the overturned car and that the train was visible when it was at least a mile away. Defendant’s engineer admits that, although he was looking straight ahead, he did not discover the object on the track until he had approached to a point within seven hundred or a thousand feet. As soon as he became aware of the impediment, he applied his emergency brakes but was then unable to avoid the collision. The circumstances are unlike those in such cases as Chrystal v. T. & B. R. R. Co. (105 N. Y. 164); O’Brien v. Erie R. R. Co. (210 N. Y. 96); Fierro v. N. Y. C. R. R. Co. (256 N. Y. 446) and Kawacz v. D., L. & W. R. R. Co. (259 N. Y. 166), where we held that the driver of a locomotive is not bound to stop his train the moment he sees some living object on the track but has the right to assume that such a being will leave the track in time to escape injury. H he is under no obligation to stop at sight, no duty is imposed upon him to keep a vigilant outlook for an animate creature. Here the object, being inanimate, would necessarily remain where it was located until removed.

In the exercise of reasonable care should the engineer sooner have discovered the presence of this car on the track and, having sooner discovered it, should he then have appreciated danger of collision and proceeded to stop his train? No issue of contributory negligence is present and, accordingly, the doctrine of last clear chance is not applicable. The only question relates to negligence by defendant and the case is narrowed to an inquiry whether, as matter of law, defendant was free from it or whether plaintiff has produced such evidence as might warrant a jury in inferring negligence. The case is a close one but we have reached the conclusion that here is a question for the jury. uWe cannot hold as matter of law that, on the testimony of plaintiff’s witnesses if true, the conduct of the engineer in discovering the obstruction was so alert as completely to absolve himself from all failure to use such care as the ordinarily prudent man would consider reasonable.

The judgment of the Appellate Division and that of the Trial Term should be reversed and a new trial granted, with costs to abide the event. (See 269 N. Y. 674.)

Crane, Ch. J., Lehman, Hubbs, Crouch, Loughran and Finch, JJ., concur.

Judgments reversed.


text:
    Interboro Operating Corporation, Appellant, v. Commonwealth Security and Mortgage Corporation, Respondent.
    (Submitted October 4, 1935;
    decided November 19, 1935.)

      Samuel L. Marcus and Eli Bensky for appellant.
    The right of the plaintiff to file a lis pendens is disclosed by the allegations in the complaint. {Andrews v. Hancock, 128 Misc. Rep. 800; Kauffman v. Simis, 156 App. Div. 208; Mills v. Bliss, 55 N. Y. 139; Schomacker v. Michaels, 189 N. Y. 61; Bachman v. Wagner, 61 Hun, 625; Lindheim & Co. v. Central National Realty & Construction Co., Ill App. Div. 275; McCrum v. Lex Realty Co., 113 App. Div. 58; Lafayette Forwarding Co. v. Rothbart Oarage Operators, Inc., 205 App. Div. 247; Faber v. Hanbury, 159 App. Div. 59; Jones v. Armenia Ins. Co., 136 App. Div. 453.) The vendee has a lien in equity for the down payment even after rescinding the contract, if the reason therefor is the default on the part of the vendor. {Wythe v. Lee, 3 Drewry’s Rep. 396; Rose v. Watson, 10 H. L. Cas. 672; Occidental Realty Co. v. Palmer, 117 App. Div. 505; Zeiser v. Cohen, 207 N. Y. 407; Giarratano v. Mcllwain, 215 App. Div. 644; Holden v. Efficient Craftsman Corp., 234 N. Y. 437; Abramowitz v. Fraccalvieri, 227 App. Div. 418.)

      George M. Welch for respondent.
    A lis pendens may only be filed in an action affecting the title to or the possession, use or enjoyment of real property. (Civ. Prac. Act, § 120; Bissell v. Taylor, 229 App. Div. 369; St. Regis Paper Co. v. Santa Clara Co., 62 App. Div. 538; Brox v. Riker, 56 App. Div. 388.) The right to file a lis pendens depends upon the purpose of the action as disclosed by the allegations of the complaint. Its character is not determined by the prayer for judgment. (Brox v. Riker, 56 App, Div. 388; Fitzsimmons v. Drought, 15 App. Div. 413; Krainin v. Coffey, 119 App. Div. 517; Kauffman v. Simis, 156 App. Div. 208.) The plaintiff having elected to rescind the contract and to sue for damages, no contract exists upon which a lien can be predicated and the action, consequently, is not one to recover a judgment affecting the title to or the possession, use or enjoyment of real property. (Davis v. Rosenzweig Realty Co., 192 N. Y. 128; Elterman v. Hyman, 192 N. Y. 113; Goodman v. Schwab, 136 App. Div. 583; Flickinger v. Glass, 222 N. Y. 404; Whiting v. Glass, 217 N. Y. 333.)
   O’Brien, J.

A contract between these parties for the sale and purchase of real property provides that all sums paid on account and the reasonable expense of examining title are made liens. After plaintiff as vendee had made a down payment to defendant as vendor and had incurred expenses for examining the title, it rescinded the contract on the ground of fraud and brought this action for the purpose of foreclosing its vendee’s lien and filed a notice of lis pendens. Defendant moved to cancel the notice on the ground that this action is not one to recover a judgment affecting the title to real property. At Special Term the motion was denied but the Appellate Division reversed on the law and certified to this court the question: “ Should the defendant’s motion to cancel the notice of pendency of action have been granted? ”

Section 120 of the Civil Practice Act authorizes the filing of a notice of Us pendens in an action brought to recover a judgment affecting the title to, or the possession, use or enjoyment of real property. If the purpose of this action, as disclosed by the complaint, is to foreclose a lien on real property, then certainly this is such an action as falls within the contemplation of section 120. Perusal of the allegations of the complaint leaves no room for doubt that the purpose of this action is the foreclosure of a lien on real property and, therefore, that it is an action brought to recover a judgment affecting the title to real property. The Appellate Division based its reversal on the ground that plaintiff, having rescinded and repudiated the contract for fraud at its inception, cannot have a lien on the premises and relied for this proposition on the decisions by this court in Elterman v. Hyman (192 N. Y. 113) and Davis v. Rosenzweig Realty O. Co. (192 N. Y. 128). Whether this court, when the question is properly presented, will regard these cases as controlling in their application to the case at bar is a question in which some doubt may be involved. Yet even if accepted as binding precedents on the merits, the question is not now before us. The ultimate result of litigation may not be decided on an interlocutory motion of this character. Since the purpose of the action is one enumerated in section 120 of the Civil Practice Act, the notice of pendency may not be canceled for the reason that a court, looking into the future, may conclude that plaintiff will not on the merits finally prevail. So long as this action is pending, the notice may not be canceled. (Mills v. Bliss, 55 N. Y. 139; Schomacker v. Michaels, 189 N. Y. 61, 65; Beman v. Todd, 124 N. Y. 114; St. Regis Paper Co. v. Santa Clara Lumber Co., 62 App. Div. 538.)

The order of the Appellate Division should be reversed and that of the Special Term affirmed, with costs in this court and in the Appellate Division. The question certified should be answered in the negative.

Crane, Ch. J., Lehman, Hubbs, Crouch, Loughran and Finch, JJ., concur.

Ordered accordingly.


author: Crane, Ch. J.

text:
    George M. Clarke, as Trustee under the Will of Anne D. Thomson, Deceased, Appellant, v. Charles W. Schumann et al., as Trustees under the Will of Charles W. Schumann, Deceased, et al., Respondents.
    (Argued October 17, 1935;
    decided November 19, 1935.)

      Charles J. Healy and George M. Clarke for appellant.
    The Special Term, pursuant to section 1083-a of the Civil Practice Act, was required to determine the fair and reasonable market value of the mortgaged premises at a sum equal to, or a sum in excess of the amount due plaintiff, in order properly to deny the motion for deficiency judgment. (Metropolitan Life Ins. Co. v. Rosenfield,
      153 Misc. Rep. 218; City Bank Farmers Trust Co. v. Combined Real Estate Interests, 149 Misc. Rep. 743.)

      Byron L. Shinn and David L. Chared for Emma Schumann et al., as trustees under the will of George H. Schumann, deceased, respondents.
    Plaintiff failed to sustain the burden of proof and to show he is entitled to a deficiency judgment. (Sloan v. Baird, 162 N. Y. 327; Weed v. Lyons Petroleum Co., 294 Fed. Rep. 725.) Plaintiff is not entitled to any direction for entry of a deficiency judgment or to further proceedings in the courts below. (New York Life Ins. Co. v. Guttag, 265 N. Y. 292; City Bank Farmers Trust Co. v. Ardlea Incorporation, 267 N. Y. 224.)
   Crane, Ch. J.

This action was commenced by the plaintiff, George M. Clarke, as sole substituted trustee under the last will and testament of Anne D. Thomson, deceased, to foreclose a mortgage on a six-story loft building known as premises 28-32 West Third street and 219 Greene street in the borough of Manhattan, city of New York. The judgment of foreclosure and sale was signed on April 2, 1934, and the premises described in the judgment were sold at public auction to the plaintiff herein for the sum of $10,000. The referee found that in accordance with the provisions of the judgment of foreclosure and sale the mortgagors were indebted to the mortgagee in the sum of $63,361.19. Applying the purchase price of $10,000, it left a deficiency of $53,361.19 due to the plaintiff. As section 1083-a of the Civil Practice Act was applicable to this foreclosure the plaintiff could not have judgment for this deficiency but was obliged to apply to the court for a valuation of the property to determine whether as a fact there was a deficiency according to the methods of ascertainment therein contained.

On July 10, 1934, the plaintiff made a motion at Special Term for an order confirming the referee’s report and determining the fair and reasonable market value of the premises as of the date the premises were bid in at auction or such nearest earlier date as there was any market value thereof. The plaintiff submitted the affidavits of reputable real estate men showing the market value of the premises and the facts and figures relating to sales by which these experts had arrived at their conclusion. This was met by opposing affidavits submitted on behalf of the respondents giving their estimate of value. The court reserved its decision and later made an order confirming the referee’s report of sale and determining the value of the property to be $57,000. The court’s opinion reads: “ The sale is confirmed. * * * The land value seems pretty well fixed at about $35,000. A business building which cannot be rented is worth nothing. A building rented permanently has a value. What is a building worth whose present structural cost, less depreciation, adds $28,000 when it is vacant and, while in condition for renting has no immediate prospect of being rented? I think it is worth at least $22,000. This gives the value as $57,000. The motion for deficiency is denied.”

If the value of the land as found by the justice was $57,000, and the indebtedness $63,361.19, deficiency should have been given for the difference between these two figures. This is not a case where a stranger bought in the property for $10,000, so that the purchase price over expenses would go to the plaintiff mortgagee as a payment on the mortgage indebtedness. The plaintiff mortgagee put up his own money and would be merely getting it back. The deficiency, therefore, is the difference between the value of the property received and the mortgagor’s indebtedness as found by the referee after consummation of the sale.

Section 1083-a, above referred to, provides that: No judgment shall be granted for any residue of the debt remaining unsatisfied * * * except as herein provided. Simultaneously with the making of a motion for an order confirming the sale, or within ninety days after the date of the consummation of the sale by delivery of the proper deed of conveyance to the purchaser, the party to whom such residue shall be owing may make a motion in the action for leave to enter a deficiency judgment upon notice to the party against whom such judgment is sought * * *. Upon such motion the court * * * shall determine, upon affidavit or otherwise as it shall direct, the fair and reasonable market value of the mortgaged premises as of the date such premises were bid in at auction * * * and shall make an order directing the entry of a deficiency judgment. Such deficiency judgment shall be for an amount equal to the sum of the amount owing by the party liable as determined by the judgment with interest * * * less the market value as determined by the court.” Upon such an application as is here provided for the court must ascertain the market value of the property and must enter a deficiency judgment if that value be less than the amount due.

The parties in this proceeding made no objection to the method of determining market value by the affidavits of experts. Upon the argument of the appeal and in the briefs this method is admitted to be satisfactory to them. Much discussion, however, has arisen over the meaning of the memorandum decision of the Special Term justice. One claims that he determined the value as $57,000, and the other insists that he did not. Exactly what the justice did mean is somewhat difficult to determine. We have taken his figure at $57,000 as he stated it in the last sentence. If this be correct, we cannot understand why he did not allow deficiency judgment. In order to avoid any doubt upon this question of value we think in reversing that it is proper that a rehearing should be had and, therefore, remit this matter to the Special Term for a further and more exact decision, fixing the value pursuant to the section of the Civil Practice Act above quoted.

The orders should be reversed, and the matter remitted to the Supreme Court for a new hearing in accordance with this opinion, with costs in this court and in the Appellate Division to the appellant.

Lehman, O’Brien, Hubbs, Loughran and Finch, JJ., concur; Crouch, J., not sitting.

Ordered accordingly.