text:
    William H. Kniffin, as Trustee in Bankruptcy of C. H. Earle, Inc., Appellant, v. State of New York, Respondent.
    (Claim No. 21770.)

      Argued June 13, 1940;
    decided July 24, 1940.

      Sidney Squire and John T. Norton for appellant.
    After bankruptcy of the contractor the State could not place itself in a preferred position superior to the bankrupt’s creditors. (Matter of Shults, 135 Fed. Rep. 623; Cumberland Glass Co. v. DeWitt, 237 U. S. 447; United States v. Marxen, 307 U. S. 200.)

      John J. Bennett, Jr., Attorney-General (Leon M. Layden of counsel), for respondent.
    The determination of the trial court was proper. (Field v. Mayor, 6 N. Y. 179; Hinkle Iron Co. v. Kohn, 229 N. Y. 179; Weniger v. 14th St. Store, 191 N. Y. 423; Prata v. Green, 70 App. Div. 224; 174 N. Y. 535; Toney v. New Amsterdam Casualty Co., 124 Misc. Rep. 361; Riverside Contracting Co. v. City of New York, 218 N. Y. 596; Post & McCord v. City of New York, 86 Misc. Rep. 300; Superior Brassiere Co. v. Zimetbaum, 214 App. Div. 525; Hofferberth v. Duckett, 162 N. Y. Supp. 167.)
   Sears, J.

C. H. Earle, Inc., a corporation of which the plaintiff is the trustee in bankruptcy, contracted with the State in August, 1928, to construct certain improvements at Jones Beach on Long Island. In the course of the work the Earle Company became indebted to a subcontractor, the Raymond Concrete Pile Company, to the extent of $102,462.36. On the 17th day of May, 1929, the Earle Company gave the Raymond Company a written assignment of moneys due or to become due to it from the State pursuant to its contract with the State to the extent of the amount of this indebtedness, payable as follows:

“ (1) The sum of forty-one thousand fifty-five dollars ($41,055) out of the next payment after the date of the assignment made or becoming due to the contractor under or on account of said contract; which payment the contractor warranted would amount to at least $41,055 and would become due on or about June 1, 1929; provided that if the next payment becoming due to the contractor would not amount to $41,055, the balance or deficit would be paid out of the next succeeding payment or payments made or becoming due to the contractor under or on account of said contract.
“ (2) The sum of thirty thousand seven hundred three and 68/100 dollars ($30,703.68) (plus any balance or deficit remaining from said sum of $41,055 as aforesaid) out of the second payment after the date of the assignment made or becoming due under or on account of said contract, which payment the contractor warranted would amount to at least $30,703.68 plus any such balance or deficit and would become due to the contractor on or about July 1, 1929; provided that if the next two payments becoming due to the contractor under or on account of said contract would not amount to seventy-one thousand seven hundred fifty-eight and 68/100 Dollars ($71,758.68), the balance or deficit would be paid out of the next succeeding payment or payments becoming due to the contractor -under or on account of said contract.
(3) The sum of thirty thousand seven hundred three and 68/100 dollars ($30,703.68) (plus any balance or deficit remaining from said sums of $41,055 and $30,703.68 aforesaid) out of the third payment after the date of the assignment made or becoming due under or on account of said contract, which payment the contractor warranted would amount to at least $30,703.68 plus any such balance or deficit and would become due to the contractor on or about August 1, 1929.”

The assignment was filed and docketed in the proper State offices on* May 20, 1929. On May 21, 1929, the State Comptroller paid to the Earle Company $128,541.83 without regard to the Raymond assignment then on file, but on the next day the Earle Company paid to the Raymond Company $41,055. On or about June 7, 1929, the State Comptroller paid to the Earle Company on the contract the further sum of $69,406.56 without regard to the Raymond assignment. The Earle Company made no payment to the Raymond Company therefrom. On or about June 19, 1929, the State Comptroller further paid to the Earle Company on the contract $94,402.07 without regard to the Raymond assignment and the Earle Company made no payment to the Raymond Company therefrom. On or about July 9, 1929, the State Comptroller paid the Raymond Company $30,703.68 on the assignment out of a fourth payment of $42,662.25 due the Earle Company. After these payments had been made, there remained due to the Raymond Company from the Earle Company a balance of $30,703.68. On the 22d day of July, 1929, an involuntary petition in bankruptcy was filed against the Earle Company, and subsequently the Earle Company was adjudicated a bankrupt and the plaintiff became its trustee in bankruptcy. On July 24, 1929, two days after the bankruptcy petition was filed, the State gave notice that work under the contract had not progressed satisfactorily, and on July 30, 1929, by official order, canceled the contract and proceeded to complete the work itself. On April 9, 1930, the State issued its official order that the Earle contract had been completed by the State and the work declared accepted, and the State certified that $279,642.76 was available to the credit of the contract subject to liens filed. Meanwhile the Raymond Company, on March 18, 1930, had filed a claim in the Court of Claims against the State for the balance due it from the Earle Company amounting to $30,703.68, with interest. Trial occurred April 7, 1930, and on June 3, 1930, the court entered judgment in favor of the Raymond Company against the State for $30,703.68, with interest from June 17, 1929, upon a decision with findings to the effect that the State had disregarded Raymond’s assignment when there were sufficient moneys in the hands of the Comptroller to pay Raymond out of the estimates which were the bases for the second, third and fourth payments by the State to Earle. On June 9, 1930, the State paid the Raymond Company $32,506.72, the amount of the judgment, with interest, and received from the Raymond Company an assignment of the judgment. This the State took as an investment for the Common School Fund. The judgment was held as an investment of Common School Fund until the 1931 Legislature made appropriation for the payment of judgments granted by the Court of Claims against the State. On June 12, 1930, the State claimed that it had, appropriated and available for the work under the Earle contract, the sum of $247,436.03 subject to assignments and liens filed, but such amount omitted the sum of $32,506.73 which it had paid for the Raymond judgment. In this claim the State thus treated the amount paid to the Raymond Company as a payment on the Earle contract. On January 21, 1931, the plaintiff filed in the Court of Claims a claim against the State for the balance due on the Earle contract. In this claim there was included an item of $32,506.73, with interest from June 9, 1930, being the amount which the State paid to the Raymond Company for the Raymond Company’s judgment against the State. On March 6, 1931, the State’s Common School Fund was reimbursed the amount paid to obtain the assignment of the Raymond judgment, with interest, out of the appropriation made by the 1931 Legislature for the payment of Court of Claims judgments against the State.

In the present action the State has been successful in the Court of Claims and in the Appellate Division in being allowed to treat the amount paid on the Raymond judgment as a payment on the Earle contract superior to any right of the trustee in bankruptcy.

We reach the conclusion that the judgment before us for review is correct so far as the principal sum is concerned, but erroneous with respect to interest. The record does not contain the full text of the assignment from the Earle Company to the Raymond Company, which furnishes the basis of the State’s position. We have before us merely a brief statement of its contents in the agreed statement of facts and in the findings in the Court of Claims. We read these statements as showing that the Earle Company assigned its claim against the State to the amount of $102,-462.36 thereof, and provided for its payment out of three subsequent estimates, but did not confine its assignment to such estimates. In other words, the assignment covered subsequent installments which might fall due under Earle’s contract with the State in case the full amount had not already been paid to Raymond, no matter what was the reason for this situation resulting. If then, the assignment was not confined to the particularly specified payments, there continued to remain, even after the bankruptcy of the Earle Company, a valid assignment to the Raymond Company of the State’s obligation to the Earle Company to the amount of the balance of the $102,462.36 remaining unpaid, namely, of $30,703.68. In this view, the State, when it paid the Raymond Company, was entitled to charge the payment against the Earle contract and take credit to itself upon the balance due from it to the Earle Company upon the entire contract. In this aspect, the bankruptcy of Earle is unimportant. The assignment from Earle to Raymond antedated the Earle bankruptcy and is superior to later hens, assignments and claims of general creditors, as stated in the opinion of the Appellate Division. (Riverside Contracting Co. v. City of New York, 218 N. Y. 596.)

That the judgment obtained by Raymond in the Court of Claims was based on a particular theory, namely, the failure of the State to pay the Raymond Company out of specific estimate payments, is immaterial. If our construction of the assignment is correct, the hen of the assignment upon the funds in the State’s hands remained vahd despite the State’s failure to comply with the terms of the assignment, and, on whatever theory the Raymond judgment was obtained, the payment of the Raymond judgment was in fact a payment on the Earle contract. The State was entitled to take credit for this payment on the balance due.

We find no significance in the facts relating to the manner of the payment of the Raymond judgment by the State. Whatever bookkeeping entries were made by the State, whatever practice was pursued to secure the money from State funds, the essence of the transaction is that the State paid the judgment when it paid Raymond, at least so far as the plaintiff is concerned. Even if we regard the transaction when the judgment was assigned by Raymond to the State for the Common School Fund as keeping the judgment unsatisfied and outstanding, it was afterwards paid and satisfied. By the assignment from the Earle Company to the Raymond Company, the State was authorized to charge the Earle Company for payments made the Raymond Company.

For these reasons, we find no error in the judgment appealed from so far as it relates to the principal sum. As to the interest, however, there should be a modification. The State had in its hands, as found by the Court of Claims, funds sufficient to pay the Raymond account against the Earle Company before the Earle bankruptcy. It did not do so. As the delay in payment of the Raymond claim was due solely to the State’s disregard of the terms of the assignment, no interest should be allowed thereon in favor of the State.

The judgment should be modified to the extent of allowing the claim for interest and, as modified, affirmed, without costs.

Lehman, Ch. J., Lotjghran, Finch, Rippey, Lewis and Conway, JJ., concur.

Judgment accordingly.


source: Caselaw Access Project

author: Finch, J.

license: Public Domain

text:
    Frances F. Marcus et al., Appellants, v. Village of Mamaroneck, Defendant, and Bankers Trust Company, as Trustee, et al., Respondents.

      Argued May 22, 1940;
    decided July 24, 1940.

      J. Henry Esser for appellants.
    The effect of the reversal by the Appellate Division is to legalize the deliberate evasion of the jurisdiction of the Zoning Board of Appeals. (Dowsey v. Village of Kensington, 257 N. Y. 221; Matter of Reed v. Board of Standards & Appeals, 255 N. Y. 126;
      Matter of Goldenberg v. Walsh, 242 N. Y. 576; People ex rel. Werner v. Walsh, 212 App. Div. 635; 240 N. Y. 689; Matter of Hering, 196 N. Y. 218; King v. Dredger, 256 App. Div. 1086; People ex rel. Black v. Randall, 254 App. Div. 310.) The Appellate Division erroneously interpreted the effect of the building permit or certificate of compliance, obtained by misrepresentation. (Jewell v. Murphy, 224 App. Div. 763; N. Y. Cement Co. v. C. R. Cement Co., 178 N. Y. 167; McCarter v. Beckwith, 247 App. Div. 289; 272 N. Y. 488; Roock v. Warner, 233 App. Div. 566; Matter of Kaltenbach v. Board of Standards & Appeals, 274 N. Y. 34; Rollins v. Armstrong, 226 App. Div. 687; 251 N. Y. 349; Matter of Colonial Beacon Oil Co. v. Finn, 245 App. Div. 459; 270 N. Y. 591.) The Appellate Division erred in legalizing the building and use for which no occupancy permit had ever been applied or issued, and for which no dance hall permit is in effect. (Heimerle v. Village of Bronxville, 168 Misc. Rep. 783; 256 App. Div. 993; Matter of Seidenberg v. Burwell, 235 App. Div. 745; Matter of Canberg v. Kleinert, 225 App. Div. 875; Matter of Leone v. Brewer, 259 N. Y. 386; Matter of Horowitz v. Schwab, 130 Misc. Rep. 158; Matter of E. J. W. Realty Corp. v. Dorman, 232 App. Div. 765.)

      Harry B. Kurzrok, amicus curiæ.

      Henry E. Stohldreier and Walter W. Westall for respondents.
    The established use is proper and legal. (Village of Attica v. Day, 134 Misc. Rep. 882; Matter of Empire City Racing Assn. v. City of Yonkers, 132 Misc. Rep. 816; Matter of Gordon v. Board of Appeals, 131 Misc. Rep. 346; Matter of Collins v. Moore, 125 Misc. Rep. 777; Village of Mill Neck v. Nolan, 233 App. Div. 248; Matter of Menreal Corp. v. Board of Standards & Appeals, 235 App. Div. 850.) The action is barred by reason of appellants’ loches. (Matter of Gordon v. Board of Appeals, 131 Misc. Rep. 346.)
   Finch, J.

This action is brought by the owners of one-family private dwellings to restrain violations of the Village Zoning Law. Special Term gave judgment for plaintiffs. The Appellate Division, second department, reversed Special Term on the law and facts, and dismissed the complaint, making certain new findings. The village of Mamaroneck, although named as a defendant, has not appealed from the judgment, and hereafter reference to defendants will be taken to mean the owners of a certain Beach club ” located in a Residence “A” Zone, in which are located the properties of plaintiffs.

The overwhelming weight of the evidence shows the following facts: In 1924 defendants, or their predecessor in interest, were operating^ a so-called “ Beach club ” as a business for profit. In 1929 the president of the corporation wrote to the then proprietors, “ As there is no club and never has been any club, no revenue tax was collectible.” In any event, it was stipulated in the record that the “ Beach club ” was a non-conforming use at all times in this district.

In 1925 zoning ordinances were adopted which established this district as a Residence “A” District. This in general prohibited the erection or use of any building except as a detached or semi-detached one- or two-family dwelling, but exempted non-conforming buildings and uses. In addition, no existing building devoted to a non-conforming use may be altered at a cost for the alteration of a sum exceeding fifty per cent of the assessed value of the lot and building. A Board of Appeals was given authority in each particular case, after public notice and hearing and subject to appropriate conditions and safeguards, to vary the regulations in harmony with their general purpose and intent so as to permit the enlargement of a non-conforming use or building in excess of fifty per cent of the assessed value of the building enlarged. The zoning ordinance also provided for “ certificates of compliance and occupancy ” so that hereafter no person shall use or occupy any building which has been altered “ * * * until the Building Inspector slin.n have issued a certificate of occupancy stating that the building and premises comply with the provisions of these regulations.”

In 1928 the structural facilities of the club were greatly altered and enlarged pursuant to a building permit which was valid on its face. This building permit, however, had indorsed on its face that all provisions of the zoning ordinances should be complied with in the alteration. The expense of the alteration was not less than $44,000, while the assessed valuation of the lots and buildings did not exceed $21,400. Although the then proprietors who were altering the buildings testified that they knew they were engaged in an unlawful undertaking, in making alterations at a cost of at least $44,000, when the limit fixed by law was one-half of the assessed valuation, or approximately $10,700, no application was made to the Board of Appeals for a variance. In addition, it is uncontroverted that no certificate of occupancy has been issued.

Special Term granted judgment for plaintiffs, restraining the activities of defendants except as measured by the use which was made of the premises as of March 2, 1925, and further providing that if application for a certificate of occupancy be not made and obtained within ninety days, plaintiffs might apply at the foot of the judgment to restrain defendants altogether until such certificate is obtained.

Upon appeal, the Appellate Division reversed, among other findings, that which established a violation of an expenditure in making alterations in excess of fifty per cent of the assessed valuation, and stated in its opinion, The enlargement of the appellant’s plant in 1928, even though it involved the expenditure of the substantial amount of $44,000, has been held to have been under a permit which was valid on its face * * *. It may well be that part of this enlargement had no necessary relation to an increase of a non-conforming use and, therefore, insofar as it did concern itself with an increase of a non-conforming use it did not reach a percentage basis that was violative of subdivision (1) of section 11 of article I of the Zoning Ordinance of the Village of Mamaroneck, which contained a fifty per cent limitation in respect of assessed value.” (258 App. Div. 328, 329.) The Appellate Division, however, made no new finding that the alterations complied as to cost with the limit of fifty per cent of the assessed value of the lot and building.

The evidence in the record is overwhelming, if indeed controverted, that the expenditure involved in the alteration was at least $44,000 while the assessed valuation was only $21,400. The design of the ordinance is clear. It is to permit the continuance of existing non-conforming uses, and further to allow buildings housing such uses to be altered to an extent not exceeding fifty per cent of the assessed valuation as a matter of course. Where, however, it is sought to make structural changes in excess of this limit, then the owner of the non-conforming premises must apply to a Board of Appeals which in a specific case, after public notice and hearing and subject to appropriate conditions and safeguards, may grant a variance in harmony with the general purposes and intent of the ordinance (Village of Mamaroneck Zoning Ordinance, art. III, § 3). In the case at bar the facts unquestionably show that the costs of the structural enlargements far exceeded the fifty per cent limit. Since no application for a variance was made to the Board of Appeals and none granted, the altered use of the premises of defendants was made in violation of law, and has since continued to be illegal. Defendants urge that the construction and enlargement of the premises were made pursuant to a building permit valid on its face. Appellants urge that the building permit was obtained by a misrepresentation that the alteration was an enlargement of a conforming use. The determination of this issue is immaterial. No building permit by an administrative official could condone, or afford immunity for, a violation of law. But in addition, as already noted, this permit expressly provided on its face that all provisions of the zoning ordinance of the village should be complied with in the alteration of the building, whether specified or not. The foregoing acts of defendants have constituted from their inception a continuing violation of law even without taking into consideration the fact that no certificate of occupancy has ever been obtained. The continued use of these premises without a certificate of occupancy constitutes an additional violation of the zoning ordinance. A certificate of compliance and occupancy must be issued by the building inspector stating that the building as changed complies with the provisions of the zoning law. It is uncontroverted that no such certificate of compliance and occupancy has ever been issued. Whether the great increase in the activities and manner of operation of this “ Beach club ” constitute a change in use becomes immaterial in view of the express provision of the ordinance that a certificate of compliance and occupancy is required for “ * * * any building or premises or part thereof hereafter erected, created, changed or converted wholly or partly in its use or structure * * (Zoning Ordinance, art. II, § 2.) The intent of the ordinance to require certificates of occupancy where there have been changes in either use or structure, is further shown by the provisions of the very next section, article II, section 3, which safeguards from that requirement “ * * * the continuance of the present occupancy or use of any premises or of any existing buildings.” It would seem that defendants’ premises have been altered both in regard to use and structure, but the very wording of the ordinance shows that a certificate of compliance and occupancy is required where the alteration has taken place in any existing building. As already noted, the overwhelming evidence in the record shows an alteration of the existing building far in excess of one-half the assessed value.

It follows that plaintiffs must succeed and the judgment of Special Term be reinstated unless, as defendants urge, plaintiffs are guilty of loches or lack capacity to bring this action.

Defendants assert that plaintiffs are barred by loches for their failure to act promptly. There is no evidence in this record that these plaintiffs induced the respondents to enlarge the use of these premises, nor is there evidence of any action or inaction on the part of plaintiffs which prejudiced the position of defendants. There is no evidence at all that these plaintiffs induced these defendants to spend a dollar upon alterations. The defense of loches is based upon the principle that plaintiffs have delayed to the prejudice of defendants. (Pomeroy on Equity Jurisprudence [4th ed.], § 1440 et seq.) The alterations were made at one time. Plaintiffs were not bound to enjoin in advance the contemplated changes or forever after lose their right. The evidence indicates no technical or unpremeditated violation of law by respondents, but on the other hand, there is direct testimony by the then proprietors who made the alterations that they contemplated a deliberate violation of law. While there is not shown even acquiescence on the part of plaintiffs, mere acquiescence could not make illegal acts legal. The trial court stated that the evidence necessary to establish that the use of the property was non-conforming was obtained only shortly before the trial of the action and found as a conclusion of law that there was neither loches nor estoppel. The Appellate Division, while reversing the conclusion of law made by the trial court that there was no loches or estoppel, did not make any finding of fact or law that there had been loches or estoppel. Thus, although there may have been delay on the part of plaintiffs, there is nothing in this record to show that defendants have in any wise suffered as a result. Indeed the delay of plaintiffs has afforded defendants many years of unlawful use. In addition, the- violation by defendants is a continuing violation so long as the unlawful operation continues.

Defendants further contend that plaintiffs lack capacity to sue because, first, the village zoning ordinance specifies that the Building Inspector of the village shall bring actions to enjoin violations, and second, plaintiffs have suffered no special damage.

It appears that the property of plaintiff Marcus adjoins one parcel, and is across the street from the other parcel belonging to defendants. The property of plaintiff Estate of Henry Esser, Inc., is separated by about seventy feet of space from the main parcel belonging to defendants. To what extent the burden is upon plaintiffs to show damages is not before us since the court at Special Term found that the evidence was sufficient to show that the property belonging to plaintiffs was materially damaged in pecuniary value by reason of the use of the property of defendants in excess of the use existing at the time of the adoption of the zoning ordinance. The Appellate Division, while reversing the findings as to special damage, did not make contrary findings. The provision that an official of the village shall enforce the zoning ordinance does not prevent a private property owner who suffers special damage from maintaining an action for redress. The plaintiffs have capacity to sue and the weight of evidence in the record shows that the plaintiffs have established special damage. (Rice v. Van Vranken, 132 Misc. Rep. 82; affd., 225 App. Div. 179; affd., 255 N. Y. 541.)

Defendants assert the defense of res judicata" arising from the fact that heretofore a proceeding was brought by the village of Mamaroneck concerning certain lots used for parking and belonging to defendants which are also involved in the present action. The Appellate Division concurred with Special Term that this defense must fail, and it is not strongly urged upon this appeal by these defendants. Considered on its merits, the defense is obviously bad, since neither plaintiffs nor any predecessors in interest were parties to the prior action, and the subject-matter of the prior action differed from that which is involved upon this appeal.

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

Lehman, Ch. J., Loughran, Rippet, Sears, Lewis and Conwat, JJ., concur.

Judgment accordingly.


author: Rippey, J.

text:
    Town of Putnam Valley, Respondent, v. Samuel L. Slutzky, Appellant.

      Argued May 22, 1940;
    decided July 24, 1940.

      I. Maurice Wormser and Arnold E. Feldman for appellant.
    The fees of a non-salaried justice of the peace are codified by section 740-a of the Code of Criminal Procedure. Subdivision 2 of section 27 of the Town Law (Cons. Laws, ch. 62) does not amend, repeal or otherwise affect such section. (People ex rel. City of Buffalo v. New York C. & H. R. R. R. Co., 156 N. Y. 570; Dobson v. Village of Oneida, 106 App. Div. 377; People v. Jackson, 36 Misc. Rep. 282; Matter of Birmingham, 240 App. Div. 995; Matter of Rinn, 242 App. Div. 523; People v. Dwyer, 215 N. Y. 46; People v. Koenig, 9 App. Div. 436; Heckmann v. Pinkney, 81 N. Y. 215; People v. Jaehne, 103 N. Y. 182; Union Free School District v. Town of Rye, 256 App. Div. 456; 280 N. Y. 469; McIntosh v. Furth, 26 Pac. Rep. 79; Furnia v. Grays Harbor County, 158 Wash. 619; United States v. Morse, 3 Story, 87.) A justice of the peace sitting as a Court of Special Sessions is a constitutional officer. In a town of the second class not operating under the budget system the criminal fees of a non-salaried justice of the peace are prescribed solely by section 740-a of the Code of Criminal Procedure.
      (Calvin v. Town of Brant, 172 N. Y. Supp. 738; People v. Keeler, 25 Barb. 23; People ex rel. Burby v. Howland, 17 App. Div. 165; 155 N. Y. 270; Matter of Voorhees v. Kopler, 239 App. Div. 83.)

      Laurence E. Degner and Alfred J. Loew for New York State Magistrates Association, amicus curiæ.

    Subdivision 2 of section 27 of the Town Law does not limit the compensation of a justice of the peace to $3,000 per annum as it expressly exempts services for which compensation is otherwise authorized by law. (Colvin v. Town of Brant, 172 N. Y. Supp. 738; Matter of Town of Hempstead, 36 App. Div. 321; People ex rel. Van Denbergh v. Town Board, 254 App. Div. 54.) Subdivision 2 of section 27 of the Town Law may not be construed to repeal by implication section 740-a of the Code of Criminal Procedure. (Matter of Birmingham v. Abrams, 240 App. Div. 995; Horowitz v. Weinberg, 156 Misc. Rep. 629; 246 App. Div. 701.) Section 19 of article 6 of the State Constitution provides that no judicial officer except a justice of the peace shall receive to his own use any fees or perquisites of office and if subdivision 2 of section 27 of the Town Law is construed to limit or forbid such right it is unconstitutional. (People ex rel. Burby v. Howland, 17 App. Div. 165; 155 N. Y. 270; Loew v. McNeil, 170 Misc. Rep. 647; 279 N. Y. 806.)

      Israel Ben Scheiber and Harry Levy for respondent.
    Defendant for all his services as a justice of the peace of the respondent town was entitled to a maximum compensation of $3,000 for the year. (Matter of Town of Hempstead, 36 App. Div. 321.) Defendant is a town officer within the meaning of subdivision 2 of section 27 of the Town Law and his annual aggregate compensation is limited by that section to $3,000. (People ex rel. Burby v. Howland, 17 App. Div. 165; 155 N. Y. 270; Matter of Gertum v. Board of Supervisors, 109 N. Y. 170.) Subdivision 2 of section 27 of the Town Law is a constitutional exercise of legislative power. (People ex rel. Burby v.
      Howland, 155 N. Y. 270; People ex rel. Luyster v. Cocks, 172 App. Div. 737; 219 N. Y. 628.) The General Construction Law (Cons. Laws, ch. 22) does not invalidate subdivision 2 of section 27 of the Town Law which clearly fixes a maximum compensation. That section does not conflict with section 740-a of the Code of Criminal Procedure. (Matter of Bronson, 150 N. Y. 1; Davidson v. Witthaus, 106 App. Div. 182; Rubin v. Bernstein, 133 Misc. Rep. 95; Matter of Tiffany, 179 N. Y. 455; Matter of Wallace, 36 Misc. Rep. 1.)
   Rippey, J.

This action was brought by the town of Putnam Valley to recover from the defendant, a justice of the peace of that town, the sum of twelve hundred thirty dollars and thirty-five cents ($1,230.35) which the plaintiff asserts was unlawfully paid to defendant by the town during the year 1937 on account of claims made by him for compensation for services in criminal proceedings conducted by him during that period. It was alleged that the payments were made under a mistake of law in that the town board did not know at the time of audit and payment, of the limitation on the amount of compensation payable to a justice of the peace under section 27, subdivision 2, of the Town Law (Cons. Laws, ch. 62). In the answer, defendant denies that the payment was excessive or otherwise unlawfully made or that it was made under a mistake of law and sets up affirmative defenses to the effect that the p.G.ims for compensation were valid in all respects and in accord with applicable law and that the claims were validly and legally audited and paid by the town board. Each party moved for summary judgment. There being no dispute as to the facts, the Justice at Special Term granted plaintiff’s motion and denied defendant’s motion and judgment was entered accordingly. Upon appeal to the Appellate Division, second department, the judgment was unanimously affirmed but leave was granted to appeal to this court.

It appears that defendant was a duly elected and acting justice of the peace of the town of Putnam Valley, a town of the second class which was not operating under the budget system authorized by sections 110-121, inclusive, of the Town Law, that no board had fixed the amount of his fees in criminal proceedings and that the amount of such fees was nowhere fixed except in section 740-a of the Code of Criminal Procedure; that, as such justice of the peace during the year 1937, defendant presided at duly constituted Courts of Special Sessions within the town of Putnam Valley in nine hundred and twenty-nine (929) criminal cases under and pursuant to the criminal jurisdiction conferred upon a justice of the peace by the Constitution and laws of the State of New York in which he collected fines of $8,401 which fines were turned over to and accepted by the plaintiff; that he duly presented claims to the town for fees for services rendered in such criminal cases, by the authority of article VI, section 19, of the Constitution of the State as then written and sections 102, subdivision 9, and 103 of the Town Law according to the schedule of fees allowable under section 740-a of the Code of Criminal Procedure, in the aggregate sum of $4,055.35 which claims the plaintiff duly audited and paid; and that, during the same period, defendant, as a duly constituted member of the town board and of other boards, attended board meetings and committee meetings in furtherance of his duties of town officer and member of the town board of plaintiff for which he presented claims for services, pursuant to section 27, subdivision 2, of the Town Law, aggregating the sum of $185 which claims were, without dispute here, duly audited by the town board at $175 and lawfully paid. It has been stipulated by defendant that he does not urge the defense of voluntary payment.

The town does not claim nor attempt in any manner to assert here that the defendant is not entitled to compensation for services performed by defendant as a member of the town board or that he is not entitled to fees in criminal cases in which he presided at the rates fixed in section 740-a of the Code of Criminal Procedure, but insists that the gross amount of compensation and fees which he may receive for the eleven months specified could not exceed the sum of three thousand dollars under every and all relevant statutory provisions. Reliance for sustaining that position is placed exclusively upon section 27, subdivision 2, of the Town Law, which, it is urged, provides the absolute ceiling beyond which his total compensation cannot go. That section, so far as material, reads: “Town officers in towns of the second class, except towns which shall have adopted the budget system as provided by sections one hundred ten to one hundred twenty-one, inclusive, of this chapter, shall be entitled to compensation at the following rates for each day actually and necessarily devoted by them to the service of the town in the duties of their respective offices, except for services for which a compensation is otherwise authorized by law: The supervisor, town clerk and justices of the peace, such an amount as the town board may determine, but in no event to exceed six dollars per day. * * * Nor shall the total compensation of said supervisor for services rendered the town, including the allowance to him under authority of section one hundred ten of the highway law, or of any other town officer in such a town, exceed the sum of three thousand dollars per annum.” (Italics ours.) (L. 1932, ch. 634, § 27, subd. 2.)

It is asserted that the foregoing provision of the Town Law limiting the total compensation of a justice of the peace in a town of the second class supersedes every other earlier provision of law to the extent inconsistent with that limitation and, to the extent of such inconsistency, every other act relating to such compensation was by implication repealed. With that contention we are unable to agree.

The origin and history of the office of justice of the peace and of his jurisdiction in civil and criminal cases has heretofore been the subject of judicial comment (People v. Kraft, 229 App. Div. 281; People ex rel. Lawrence v. Mann, 97 N. Y. 530; Matter of Gertum v. Board of Supervisors, 109 N. Y. 170; People ex rel. Burby v. Howland, 155 N. Y. 270; People ex rel. Frank v. McCann, 253 N. Y. 221). By our State Constitutions, the office has been preserved from colonial times (see art. VI, § 17, Constitution of 1894, and McKinney’s notes) as one embracing judicial functions within its scope. There is no constitutional provision which describes the powers and duties of a justice of the peace in towns. The Legislature has, however, enacted general laws which are uniform and apply alike to all justices of the peace in towns throughout the State. Their civil jurisdiction is now prescribed in article 1 of the Justice Court Act (Laws of 1920, ch. 937, as amd.) which had its derivation from the former Code of Civil Procedure and extends to many actions where the amount of recovery is limited. The criminal jurisdiction which they possess is found in various sections of the Code of Criminal Procedure. As Judge Vann says in People ex rel. Burly v. Howland (supra, p. 278): “ Their criminal jurisdiction, as committing magistrates, covers crimes of all grades, and as justices holding Courts of Special Sessions, crimes of the grade of misdemeanor,” and he adds by way of definition: "A justice of the peace in towns, therefore, may be defined as a constitutional judge elected by the People for a fixed term, protected from removal except by a judicial tribunal, on notice and for cause, with civil jurisdiction in most actions where the sum claimed does not exceed two hundred dollars, and with criminal jurisdiction to apprehend and commit for all crimes, and to try and convict in cases of misdemeanor.” We have found it unnecessary to pause to enumerate or review the various provisions of law in which the jurisdiction of a justice of the peace is defined. It is sufficient to say that no such jurisdiction is conferred under any provision of the Town Law except in section 31, in which it is provided that “ the justice of the peace shall have such jurisdiction in criminal and civil matters and in special proceedings, as is now or may hereafter be conferred by law.” The Legislature has conferred upon him the designation of judge ” (General Construction Law [Cons. Laws, ch. 22], § 26). Being a constitutional officer, as long as the town exists, his office may not be abolished or the term for which he was elected abridged (People ex rel. Burby v. Howland, supra) nor his duties transferred to any other inferior court as a substitute (Curtin v. Barton, 139 N. Y. 505) nor may his compensation, where already fixed, be increased or diminished during the term for which he has been elected to office. For fees for services performed in civil proceedings compensation is provided by sections 324 and 325 of the Justice Court Act (formerly section 3322 of the Code of Civil Procedure) and in criminal proceedings by sections 740-a, and, when acting as coroner, by section 789-a of the Code of Criminal Procedure. His jurisdiction is not limited to the geographical boundaries of the town. While performing his judicial functions, he is not acting as a town officer for and on behalf of the town within the meaning of section 27, subdivision 2, of the Town Law but, rather, as a part of .the judicial system of the State. All fines collected in criminal proceedings must pass to the town (Code Crim. Proc. § 726) and his fees for services must be presented, audited and paid by the town board (Town Law, §§ 102, subd. 9, 103) as computed under section 740-a of the Code of Criminal Procedure.

In addition to the judicial functions which he is authorized and required to perform as a constitutional and judicial officer within the judicial system of the State, he has other functions which he is required to perform for and on behalf of the town and as a town officer (see § 31, subd. 2, and other sections of the Town Law too numerous to detail here) of an administrative and legislative character in which his status is separate and distinct from that of a judicial officer, and for which a compensation is fixed exclusively with sole reference to the performance thereof by section 27, subdivision 2, of the Town Law. The Legislature so conclusively indicated by providing that the compensation referred to in section 27, subdivision 2, was such as is not otherwise authorized by law and by making provision for certain of his fees to be made town charges in section 102, subdivision 9, of the Town Law. Section 147 of the Code of Criminal Procedure includes in the term “ magistrate ” justices of the peace and there is no definition found in the Town Law to the contrary. Subdivision 9 of section 102 of the Town Law provides, among other things, that fees of magistrates in criminal proceedings in which Courts of Special Sessions have jurisdiction may be fixed by the town board in sums not exceeding the amount now allowed by law ” and adds and when so fixed, shall supersede as to such town any other provision of law fixing fees or mileage in such case.” That is the only provision of the Town Law relating to fees in such cases. Assuming that the town board might have fixed the amount of fees at an amount less than those fixed by section 740-a of the Code of Criminal Procedure, a point we do not decide, no such action was taken, and the fees “ now allowed by law ” can refer only to those fixed by section 740-a of the Code of Criminal Procedure. We find no difficulty, such as respondent suggests, in interpreting section 27, subdivision 2, of the Town Law as limited to compensation to which defendant may be entitled for services as a town officer solely for the town. A justice of the peace, in many cases may, at the rate fixed in that section, be entitled to receive an annual compensation in excess of three thousand dollars per year and it was clearly the purpose of the clause limiting the total amount of compensation possible to three thousand dollars per annum to meet that situation. The justice is not alone a member of the town board. It is asserted by defendant, and not disputed by plaintiff, that he was a member of several other boards or committees during the year 1937. Where the duties to be performed by him on a particular day related to particular and different functions to be performed by different boards or committes of different members he might be entitled to charge per diem compensation for each meeting. It has been so held in Matter of Town of Hempstead (36 App. Div. 321).

The last sentence in the section relating to the three thousand dollars total compensation per annum for a justice of the peace first appeared in chapter 634 of the Laws of 1932 and went into effect on January 1, 1934 (Town Law, § 342). We are asked to go back of the wording of the statute (Town Law, § 27, subd. 2) to various legislative documents to enlighten ourselves as to the intent of the Legislature in enacting that provision. We think such a course is not permissible under the circumstances of this case. We are bound, of course, in interpreting a statute, to construe it in view of other statutes relating to the same subject-matter, in accordance with the sense of its terms and the intention of the framers of the law. However, that intention is first to be sought from the words employed, and if the language is unambiguous, the words plain and clear, conveying a distinct idea, there is no occasion to resort to other means of interpretation ” (Settle v. Van Evrea, 49 N. Y. 280, 281). We find nothing ambiguous in the wording of section 27, subdivision 2, of the Town Law. Its words and meaning on its face seem clear. The idea of the Legislature is not in doubt and its meaning and effect cannot be extended by conjecture or implication. The provision refers exclusively to services of every kind to and for the town of an administrative or legislative character which may be required of a justice of the peace under the provisions of the Town Law and has no reference to compensation for services performed by the justice in his judicial character under other provisions of law. There is nothing in that section of the Town Law nor elsewhere in the statute in which that provision was enacted which directly or by implication repeals the provisions of section 740-a of the Code of Criminal Procedure. A provision was contained in various general laws in effect prior to the general consolidation of the various laws in 1909 to the effect that nothing in such act should be construed to amend or repeal any provision of the Civil or Criminal Code. Such a provision was contained in section 242 of the Town Law (L. 1890, ch. 569.) Such a provision was omitted from the provisions of chapter 63 of the Laws of 1909 (the Town Law; Cons. Laws, ch. 62), as it was from other of the consolidated laws, and was enacted as section 101 of the General Construction Law (L. 1909, ch. 27; Cons. Laws, ch. 22) which provides that “ the consolidated laws shall not be construed to amend, repeal or otherwise affect any provision of the penal law, code of civil procedure or code of criminal procedure unless expressly so stated.” There is no element of inconsistency or repugnancy between section 27, subdivision 2, of the Town Law and section 740-a of the Code of Criminal Procedure. Section 101 of the General Construction Law applies to all enactments of the Legislature subsequent Sto its adoption (People ex rel. City of Buffalo v. N. Y. C. & H. R. R. R. Co., 156 N. Y. 570; People v. Dwyer, 215 N. Y. 46).

The judgments should be reversed and the motion of defendant for judgment dismissing the complaint should be granted, with costs in all courts.

Lehman, Ch. J., Loughran, Pinch, Seabs, Lewis and Conway, JJ., concur.

Judgments reversed, etc.


author: Lewis, J.

text:
    People of the State of New York ex rel. New York Central Railroad Company, Appellant, against Richard P. Limburg et al., Constituting the Town Board of the Town of North Castle, Respondents.

      Argued May 22, 1940;
    decided July 24, 1940.

      Clyde Brown, Jr., and Clive Handy for appellant
    Relator’s right of way, as a matter of law, receives no benefit from respondents’ sanitary sewer system and, therefore, the assessment levied against the right of way should be canceled. (People ex rel. D., L. & W. R. R. Co. v. Wildy, 262 N. Y. 109; N. Y. C. & H. R. R. R. Co. v. City of Yonkers, 238 N. Y. 165; Matter of City of New York [Juniper Ave.], 233 N. Y. 387; Matter of Westchester Lighting Co. v. Sewer Commissioners, 219 App. Div. 377.) Small portions only of relator’s railroad yards receive benefit from the sewer system and the assessment should be reduced or it should be canceled with a direction to respondents to reassess on the basis of drainage by gravity. (People ex rel. Keim v. Desmond, 186 N. Y. 232.)

      James B. Stilson for respondents.
    Both the “yards” and the “ right of way ” receive benefits from the sewer district improvements. (People ex rel. Connelly v. Reis, 109 App. Div. 748; Matter of Seyfang v. Reister, 154 Misc. Rep. 308; Troy & Lansingburgh R. R. Co. v. Kane, 9 Hun, 506; 72 N. Y. 614; State v. City of Passaic, 54 N. J. L. 340; Atchison, T. & S. F. R. Co. v. Peterson, 5 Kan. 103; 58 Kan. 818; Chicago City Ry. Co. v. City of Chicago, 90 Ill. 573; Rich v. City of Chicago, 152 Ill. 18; People ex rel. Lehigh Valley Ry. Co. v. Harris, 168 Misc. Rep. 685; People ex rel. Buffalo Bridge Authority v. Davis, 277 N. Y. 292; Syracuse Center v. City of Syracuse, 163 Misc. Rep. 535; Tucker v. Utica, 35 App. Div. 173; Matter of Dinn v. Board of Education, 121 Misc. Rep. 633.)
   Lewis, J.

The relator, a railroad corporation, resists as illegal a local improvement assessment against a strip of land, used exclusively for its right of way, imposed by the respondent town officers to meet the cost of a sanitary sewer. A reduction is also sought in a separate assessment for the same local improvement against the relator’s railroad yards, upon the ground that only a portion of the land assessed will be benefited thereby.

The imposition of a tax or assessment is an act of sovereignty to be exercised by a municipal body only when delegated by the Legislature. (Matter of Long Island R. R. Co. v. Hylan, 240 N. Y. 199, 206; County Securities, Inc., v. Seacord, 278 N. Y. 34, 37.) Such a delegation of power to the respondents is found in subdivision 2 of section 202 of the Town Law (Cons. Laws, ch. 62): The expense of constructing every trunk sewer or drainage system in a district created pursuant to section one hundred ninety * * * shall be borne by local assessment upon the several lots and parcels of lands which the town board shall determine and specify to be especially benefited by the improvement, and the town board shall apportion and assess upon and collect from the several lots and parcels of land so deemed benefited, so much upon each as shall be in just proportion to the amount of benefit which the improvement shall confer upon the same.” (Emphasis supplied.)

Considering the jurisdiction of a Town Board raider a similar statute this court has said: “ The local authorities, upon whom the duty of preparing the assessment rolls rests, have jurisdiction to determine the amount of the benefit which will be derived; but where there is no benefit there can be no assessment.” (People ex rel. D., L. & W. R. R. Co. v. Wildy, 262 N. Y. 109, 111.)

In view of the relator’s concession that a portion of its railroad yards may derive a benefit from the sanitary sewer which is the subject of the assessment here in suit, the question of the extent of that benefit is not one of law within the jurisdiction of this court. It is a question of fact for determination by the respondents. (People ex rel. D., L. & W. R. R. Co. v. Wildy, supra, p. 112.)

A different problem is presented, however, by the challenge to the respondents’ jurisdiction to assess against a segment of the relator’s right of way the cost of a sanitary sewer. Upon such-a challenge our inquiry goes to the question whether “ * * * the railroad’s right-of-way is so used that it gives evidence of a permanent user for railroad purposes * * (N. Y. C. & H. R. R. R. Co. v. City of Yonkers, 238 N. Y. 165, 173; People ex rel. D., L. & W. R. R. Co. v. Wildy, supra, p. 112.) Is the exclusive use, to which it is devoted “ * * * in all probability permanent and * * * inconsistent with the idea of any benefit from such an improvement? ” (Matter of City of New York [Juniper Ave.], 233 N. Y. 387, 392. Cf. Matter of Long Island R. R. Co. v. Hylan, supra, pp. 204, 207.)

On April 1, 1873, The New York Central and Hudson River Railroad Company, the relator’s corporate predecessor, leased for a term of four hundred and one years the right of way, yards, equipment and all railroad property of The New York and Harlem Railroad Company, now commonly known as the relator’s Harlem Division. Under the terms of that lease the relator will be required to surrender the railroad to its lessor on April 1, 2274, “ with a perfect track, and all proper depots, stations, shops, grounds, buildings, structures, etc., and in as good state and condition and of as much value in all respects ” as when the lease was executed on April 1, 1873.

The respondents have imposed an assessment of $76,500 upon a strip of land comprising a total area of 11.06 acres which extends approximately 5,600 feet from the city line of White Plains northerly to the Mount Pleasant town line. This land became an integral part of the right of way of The New York and Harlem Railroad Company on June 1, 1847. Since that time it has been used exclusively as the right of way for that railroad, the tracks of which extend into New York city and furnish the only entrance to the Grand Central Terminal for the entire New York Central system.

It is important to our present inquiry to note that there are in daily operation in both directions over this particular section of relator’s right of way in the town of North Castle .forty-six passenger trains and ten freight trains. There is also evidence, which is not disputed, that there have been no plans in the past, nor are there plans at present, to curtail either passenger or freight service over this portion of the right of way.

Upon the question of benefit to the relator’s right of way to be derived from the sewer system which gives rise to the assessment, it appears that restrictions were inserted in the permit therefor issued by the State Department of Health which make the sewer legally unavailable for the disposal of storm water or surface water which may collect along the relator’s right of way. (Town Law, § 192; Public Health Law [Cons. Laws, ch. 45], §§ 76, 77.) The permit provides: That only sanitary or domestic sewage and no storm water or surface water from streets, roofs or other areas shall be admitted to the proposed sewer system.”

These facts of record prompt us to repeat here the statement by Judge Andrews writing for this court when it considered a problem with similar features presented by Matter of City of New York (Juniper Ave.) (supra, p. 392): But in one case, and one only we have said that the opening or widening of a street cannot as a matter of law be of benefit — where a railroad occupies a strip of land for its right of way. (N. Y., N. H. & H. R. R. Co. v. Village of Port Chester, 149 App. Div. 893; affd., 210 N. Y. 600.) Such land is used permanently by the railroad corporation in its operation. As a practical matter it may not be severed from other property and sold. It is a highway devoted to public travel. (Allegheny City v. W. P. R. R. Co., 138 Penn. St. 375.) ”

Opposed to this view and in support of the assessment here in question it is suggested that the advent of automobiles, motor omnibuses and motor trucks has wrought a change in the means of transportation which has already caused the abandonment of railroads and may have a like effect upon the relator’s operation of its Harlem Division. In that event, we are told, the land now used exclusively as a railroad right of way and subject to the assessment here involved, may be sold for residential purposes, factory sites or put to a use in which the availability of a sanitary sewer would enhance the land value.

We cannot rest our decision upon a suggestion so fraught with speculation. Upon the present record we are dealing with an assessment for the cost of a sewer, available only for sanitary and domestic sewage, against a narrow strip of land used exclusively as a right of way for a railroad which has been operated for more than ninety years and is today serving the New York metropolitan area under a lease which has an unexpired term of more than three hundred years, with no plans contemplated for the curtailment of either passenger or freight service. Confining our ruling to those particular circumstances the suggested possibility that the relator’s right of way may be abandoned for railroad purposes and that thereafter it may possibly be put to some other use in which the proximity of the sanitary sewer here involved may be of benefit, is illusory- — too remote and conjectural for consideration as a basis for an assessment against the land as “ especially benefited ” within the terms of the statute from which the respondents’ authority is derived.

“ Attempted action of a public body without power is void and may be attacked for want of jurisdiction at any time when an attempt is made to enforce claims founded upon such action.” (Matter of Long Island R. R. Co. v. Hylan, supra, p. 208.)

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

Lehman, Ch. J., Loughran, Finch, Rippey, Sears and Conway, JJ., concur.

Ordered accordingly.


text:
    In the Matter of The Chase National Bank of the City of New York, as Trustee, Appellant and Respondent, against Guardian Realties, Inc., Appellant, and Woodbridge Building Corporation, Respondent. (First Application.) In the Matter of The Chase National Bank of the City of New York, as Trustee, Respondent, against Guardian Realties, Inc., Appellant. (Second Application.) In the Matter of Supplementary Proceedings, The Chase National Bank of the City of New York, as Trustee, Respondent, against Guardian Realties, Inc., Appellant. (Third Application.)

      Argued May 24, 1940;
    decided July 24, 1940.

      Samuel J. Levinson, Benjamin J. Rabin and Frank Weinstein for Guardian Realties, Inc., appellant in first proceeding.
    The Special Term erroneously adjudicated, summarily and without trial, that the property produced a surplus income. (Matter of Realty Associates, Inc., 267 N. Y. 91; Matter of Realty Associates Securities Corp., 267 N. Y. 503; Matter of Brooklyn Consolidated Realty Corp., 255 App. Div. 979; Matter of Central Hanover Bank & Trust Co. v. 42 Broadway R. Corp., 172 Misc. Rep. 606; N. Y. Life Ins. Co. v. Guttag Corp., 265 N. Y. 292; Central Hanover Bank & Trust Co. v. Eisner, 276 N. Y. 121; Matter of Weitling, 266 N. Y. 184.) Section 1077-c of the Civil Practice Act does not subject an owner, who is not otherwise personally obligated to pay the mortgage debt, to personal liability for the payment of any part of the mortgage debt. Nor does such section empower the court to grant or docket a money judgment against such an owner because he fails to amortize the principal of the mortgage in an amount adjudged by the court to be proper on the basis of the surplus income produced by the property. The sole consequence of the owner’s failure to make such amortization payment is to free the mortgagee from any further statutory restraint against foreclosure under section 1077-c. (Klinke v. Samuels, 264 N. Y. 144; City Bank Farmers’ Trust Co. v. Ardlea Corp., 267 N. Y. 224; Matter of Meng, 227 N. Y. 264; Matter of Pink v. Cord Meyer Co., 279 N. Y. 236; Matter of Mortgage Commission [Muller Payer Goods Co.], 256 App. Div. 301; 281 N. Y. 780; Tuttle v. Clark, 257 App. Div. 87; Home Building & Loan Assn. v. Blaisdell, 290 U. S. 398; Wright v. Union Central Life Ins. Co., 304 U. S. 502; Matter of Schulman v. Silver, 257 App. Div. 391; Prudence Co. v. 160 West Seventy-third Street Corp., 260 N. Y. 205; Holmes v. Gravenhorst, 263 N. Y. 148; Dime Savings Bank v. Altman, 275 N. Y. 62; Woman’s Hospital v. Sixty-seventh St. R. Co., 265 N. Y. 226.) If section 1077-c of the Civil Practice Act be construed as subjecting an owner to personal liability for any part of a mortgage debt not owing by him personally, or as compelling him to surrender to a mortgagee any part of rents lawfully collected by him, the section is violative of State and Federal Constitutions. (Saunders v. Shaw, 244 U. S. 317; Brinkerhoff-Faris Trust & Savings Co. v. Hill, 281 U. S. 673; New York & O. M. R. R. Co. v. Van Horn, 57 N. Y. 473.)

      Samuel J. Levinson, Benjamin J. Rabin and Frank Weinstein for appellant in second proceeding.
    A mortgagee who is not barred by sections 1077-a and 1077-b from maintaining an action to foreclose his mortgage or from suing on the mortgage debt, is not entitled to relief under section 1077-c. (Tuttle v. Clark, 257 App. Div. 87.) The second application was properly denied because it is based upon a four months’ period and not the statutory six months’ period. (Matter of Mortgage Corp. v. Menan Realty Corp., 258 App. Div. 429; Matter of Surgan, 18 N. Y. Supp. [2d] 227.)

      Samuel J. Levinson, Benjamin J. Rabin and Frank Weinstein for appellant in third proceeding.
    An order granted under section 1077-c, adjudicating and directing payment of surplus income in reduction of the principal of a mortgage, is not an order awarding the payment of money within the meaning of section 773 of the Civil Practice Act. (Donahue v. Stein, 250 App. Div. 126.) The pendency of the previous alleged supplementary proceeding instituted by the purported subpoena dated December 2, 1939, made the institution of the second alleged supplementary proceeding unwarranted and improper. (Hutchinson v. Weston, 160 Misc. Rep. 890; Leer Bldg. & Const. Co. v. Harris, 140 Misc. Rep. 290.)

      F. Trowbridge vom Baur and Theodore G. Quintal for Chase National Bank of the City of New York, appellant and respondent in the first proceeding.
    The language of the statute is clear to the effect that an order directing the payment of surplus income is enforceable through the orthodox methods, with foreclosure provided as an additional remedy to become available only upon, and at the time of, the happening of a specified event. (Hennig v. Abrahams, 246 App. Div. 621; 270 N. Y. 626; Myers v. Becker, 95 N. Y. 486; Coffin v. Coffin, 161 App. Div. 215.) The purpose of section 1077-c is to require an owner to pay the surplus income directed to be paid. (Matter of Frasch, 245 N. Y. 174; Archer v. Equitable Life Assur. Society, 218 N. Y. 18; People v. Ryan, 274 N. Y. 149; Cohen v. Neustadter, 247 N. Y. 207; Matter of Pink v. Cord Meyer Co., 279 N. Y. 236; Tuttle v. Clark, 257 App. Div. 87; Matter of Mortgage Comm. [Muller Paper Goods Co.], 256 App. Div. 301; 281 N. Y. 780; Edison Electric Illuminating Co. v. Frick Co., 221 N. Y. 1; Riggs v. Palmer, 115 N. Y. 506; Holy Trinity Church v. United States, 143 U. S. 457.) An order directing the payment of money under section 1077-c must be enforceable or the entire moratorium legislation would be unconstitutional since it would thereby extinguish the mortgagee’s substantive contract rights to the value of possession after, default. (Home Building & Loan Assn. v. Blaisdell, 290 U. S. 398;
      State ex rel. Roth v. Waterfield, 29 Pac. Rep. [2d] 24; Virginian Joint Stock Land Bank v. Hudson, 266 Mich. 644; Youngs v. Burleson, 264 N. W. Rep. 317; Lund v. Eggleston, 279 N. W. Rep. 546; Metropolitan Life Ins. Co. v. Morris, 159 So. Rep. 388.) The special proceeding authorized by section 1077-c, being a quasi-foreclosure proceeding, is equitable in nature and is governed by equitable principles. (Home Building & Loan Assn. v. Blaisdell, 290 U. S. 398; Monaghan v. May, 242 App. Div. 64; Honeyman v. Jacobs, 306 U. S. 539; Tompkins County Trust Co. v. Herrick, 171 Misc. Rep. 929; Syracuse Trust Co. v. Corey, 167 Misc. Rep. 506; Home Owners’ Loan Corp. v. Wood, 164 Misc. Rep. 215.) Relief under section 1077-c may be obtained against Woodbridge. (Lowendahl v. Baltimore & Ohio R. R. Co., 247 App. Div. 144; 272 N. Y. 360; Berkey v. Third Ave. Ry. Co., 244 N. Y. 84; Rapid T. Subway Constr. Co. v. City of New York, 259 N. Y. 472; Floral Park Lawns, Inc., v. O’Connell, 250 App. Div. 464; Matter of Realty Associates, Inc., 267 N. Y. 91; Matter of Pink v. Cord Meyer Co., 279 N. Y. 236.) The surplus income was properly computed. (Matter of Realty Associates, Inc., 267 N. Y. 91; Matter of Realty Associates Securities Corp., 267 N. Y. 503; Sheepshead Bay Bungalow Corp. v. Mandel & Co., 244 App. Div. 811; Central Nat. Bank v. Marks, 243 App. Div. 526; New York Trust Co. v. Gude, 246 App. Div. 784; Syracuse Trust Co. v. Corey, 167 Misc. Rep. 506.) Taxes other than real estate taxes have been uniformly disallowed by the courts as improper deductions under section 1077-c. (Matter of Pink [Kayares Theatricals, Inc.], 252 App. Div. 759; Matter of Central Hanover Bank & Trust Co. v. 42 Broadway Realty Co., 172 Misc. Rep. 606.)

      F. Trowbridge vom Baur and Theodore G. Quintal for respondent in second proceeding.
    The bank has clear rights under section 1077-c, and the receiver has no rights, to an inspection of the books respecting the surplus income which accrued prior to the receiver’s appointment. (Ebling Co. v. Trinity Estates; Inc., 266 N. Y. 175; New York

      Life Ins. Co. v. Fulton Development Corp., 265 N. Y. 348; Dime Savings Bank v. Altman, 275 N. Y. 62; Woman’s Hospital v. Sixty-seventh St. R. Co., 265 N. Y. 226; Matter of Wickings, 162 Misc. Rep. 357; Levraad Realty Corp. v. Ogden, Inc., 226 App. Div. 675; Sullivan v. Rosson, 223 N. Y. 217.)
    F. Trowbridge vom Baur and Theodore G. Quintal for respondent in third proceeding.

      Max Schmer for Woodbridge Building Corporation, respondent in first proceeding.
    Under section 1077-c of the Civil Practice Act an application by a mortgagee to recover from the owner of property surplus moneys can only be made against the present owner and can, in any event, only relate to surplus income derived from the property for six months prior to the return date of the application. (Matter of Schulman v. Silver, 257 App. Div. 391; Matter of Mortgage Corp. v. Menan Realty Corp., 258 App. Div. 429; 282 N. Y. 724; Matter of Surgan, 18 N. Y. Supp. [2d] 227.)
   Finch, J.

.These are three cases in which the appeals have been argued together. They arise out of the same facts and present the same major question, whether section 1077-c of the Civil Practice Act, which is part of the mortgage moratorium legislation .in this State, imposes upon the last record owner who was not on the bond and who has not assumed its obligations, personal liability to pay to the mortgagee the amount of the surplus over and above taxes, interest and carrying charges produced during a six months’ period.

The Chase National Bank of the City of New York is the holder, as trustee, of a second mortgage upon certain premises of which Guardian Realties, Inc., is the last record owner. On December 31, 1938, Guardian acquired the property without assuming the mortgage, by grant from the Woodbridge Building Corporation, which in turn had acquired the property in 1931 from the 100 William Street Corporation, the mortgagor. Default in amortization of the principal was made on April 1, 1937. Pursuant to section 1077-c, Chase made an application on June 22, 1939, to determine the surplus produced by the property for the period June 1, 1938, to May 1, 1939. This is the first such application made by Chase which sought relief against both Guardian and Woodbridge. On September 11, 1939, Special Term handed down an opinion which granted Chase’s application as to Guardian, but only for the period January 1, 1939, to June 30, 1939. As to Woodbridge, Chase’s application was denied altogether because it was not the last record owner. An examination of Guardian’s books followed and as a result of a series of orders it was determined that Guardian had derived a surplus for the period mentioned above of $20,841.60, and that Chase was entitled to enter a money judgment against Guardian for that amount. From the affirmance of these orders Guardian appeals. Chase appeals from so much of the order of the Appellate Division as affirmed the denial of its application for relief against Woodbridge. These appeals constitute the first case.

On November 17,1939, Chase made a new application for the determination of the surplus for the period June 30, 1939, to November 1, 1939, but only against Guardian. Guardian appeals upon questions certified- to this court by the Appellate Division which granted the application and reversed the order of Special Term denying Chase’s second application. This is the second case.

Pursuant to sections 773 et seq. of the Civil Practice Act, Chase, by service of a subpoena, commenced supplementary proceedings to enforce its judgment against Guardian, obtained as a result of the first application made by Chase for the determination of surplus moneys. Guardian appeals upon certified questions from the order of the Appellate Division affirming the order of Special Term which denied Guardian’s motion to vacate the subpoena. This is the third case.

First case. Guardian’s appeal. Stated briefly, the major question upon this appeal is whether the last record owner of property, subject to a bond and mortgage as to which default has been made in the principal, is personally hable to the mortgagee for the amount of the surplus in excess of taxes, interest and carrying charges. Guardian also raises the point that the amount of the surplus has been improperly determined.

Personal liability for the accrued surplus depends upon the proper construction of section 1077-c of the Civil Practice Act.

The argument of Chase is to the effect that when the Legislature granted a moratorium to the property owner and prevented the mortgagee from foreclosing, the Legislature was constitutionally bound to afford the mortgagee the equivalent of the possessory value of the realty upon which he has a hen as security for the debt. This is said to require that the mortgagee be entitled to whatever surplus is produced by the mortgaged premises and that the property owner who remains in possession be personally accountable for the amount of the surplus as it accrues from time to time. The argument is pressed upon us that if the statute be construed as not providing for such personal liability on the part of the owner in possession, then the moratory legislation is unconstitutional. (Cf. Home Building & Loan Assn. v. Blaisdell, 290 U. S. 398; Worthen Co. v. Thomas, 292 U. S. 426, 432-434; Worthen Co. v. Kavanaugh, 295 U. S. 56, 63; Wright v. Vinton Branch, 300 U. S. 440.) Whatever may be the merits of the constitutional question, the case at bar presents the narrower inquiry as to whether the Legislature in fact has intended to create such a new obligation on the part of the property owner. If the Legislature has not so intended, and if Chase be correct in its argument on the constitutional question, still Chase would not be entitled to obtain the relief which it seeks in this proceeding, for it is not within the province of this court to rewrite the enactments of the Legislature. The constitutional question must remain until such time as it is raised in an appropriate case. (Cf. Great Falls Mfg. Co. v. Attorney-General, 124 U. S. 581.)

In support of its position, Chase relies upon part of the concluding clause of the first sentence of section 1077-c, which provides that then the court may make an order directing the payment of such surplus * *

It is urged that by force of the term an order directing ” a party to pay a sum of money, there is necessarily comprehended personal liability of the party against whom the order is directed. On the other hand, Guardian contends that there is no personal liability imposed by an order under section 1077-c and that the court in making such an order only provides a condition for the continuance of the moratorium. In the event of default, the owner in possession becomes subject to any action which the mortgagee may pursue in the absence of the moratorium.

It is a familiar canon of interpretation that the several parts of a statute are to be read together in ascertaining the legislative intent and, further, that remedial legislation designed to correct a condition must be construed in the light of the circumstances and the law theretofore existing. (City Bank Farmers Trust Co. v. Ardlea Incorporation, 267 N. Y. 224.)

Let the statute be applied to this test. Prior to the enactment of the moratory legislation, a mortgagee, upon default, might foreclose the mortgage and obtain personal judgment against those hable on the bond, but the owner in possession who had not assumed the obligations of the bond was under no personal liability and was entitled to the rents and profits. The mortgagee was not entitled to the rents and profits until he had in some way reduced them to possession, generally by the appointment of a receiver. (Sullivan v. Rosson, 223 N. Y. 217; Womans Hospital v. 67th Street Realty Co., 265 N. Y. 226, 233. Cf. Dime Savings Bank v. Altman, 275 N. Y. 62.)

Such was the law when the Legislature determined that the existence of an emergency required relief for the benefit of distressed property owners. (Laws of 1933, ch. 793. Cf. Laws of 1933, ch. 794.) A moratorium for the duration of the emergency has been provided for property owners who are able to pay at least taxes, interest and carrying charges. Actions to foreclose the mortgage are stayed by the terms of section 1077-a of the Civil Practice Act, and actions to recover on the bond are stayed by the terms of section 1077-b. But the Legislature recognized that, despite the emergency prevailing generally, there would be particular instances where the property would produce an amount in excess of taxes, interest and carrying charges. Accordingly, the moratory statute provides that although its benefits are available generally, none the less in a proper cáse a mortgagee may be relieved of the stay imposed by the moratorium. Section 1077-c provides that notwithstanding the foregoing provisions,” i. e., section's 1077-a and 1077-b, if, upon an application to a court, it be determined that property has produced a surplus for a period of six months prior thereto, then the court may make an order directing the payment of such surplus or such part thereof as the court may determine to the mortgagee to apply toward the reduction of any past due principal. In the event of default in making of such payment * * * then and in such event the applicant may maintain an action to foreclose such mortgage. In any such proceeding the court may enter an order permitting foreclosure without other proof if the owner of the property shall fail to make available for inspection by the mortgagee and the court all records and data available as to the income and disbursements, or if the owner shall fail to produce adequate records or data of income and disbursements.”

The design of the statute is clear, when the several parts are read in sequence. The first two sections provide that where the property owner protects the value of the security by paying taxes and carrying charges, and pays for the use of the loan by meeting interest charges, then the owner is not to be ousted from possession on account of default in the payment of the principal. The next section provides that if the particular parcel produces more than is required for interest and carrying charges, and if the owner fails to apply such surplus to the principal due on the mortgage, “ then and in such event ” the mortgagee may foreclose the mortgage. That is the only consequence which the Legislature has chosen to attach to the default of the last record owner in making the payment determined by the court. The Legislature has first suspended the right to foreclose for default in the principal, and second, provided the condition upon which the mortgagee may proceed with foreclosure for default in payment of the principal notwithstanding the moratorium. The argument of respondent Chase imputes to the Legislature an intent to provide that, upon default, the right to the rents and profits ipso facto is transferred to the mortgagee. This view is negatived by the very language of section 1077-c. Thus, the section provides that in the event of default in making payment of the surplus as determined by the court, the mortgagee may proceed with foreclosure proceedings. The section also provides that if the last record owner in possession obstructs the efforts of the mortgagee or of the court to determine the existence and the amount of the surplus, then regardless of whether or not such a surplus exists, the mortgagee may proceed to foreclosure. To construe the statute as imposing personal liability upon the last record owner for the amount of the surplus, would create an anomalous situation. The last record owner, who not only has failed to pay the amount of the surplus as determined by the court but who has refused even to make available for inspection the very records and data necessary for the computation is subject only to foreclosure, but is not liable personally. Obviously the Legislature did not intend to impose a greater liability upon the owner who at least co-operates by furnishing the necessary information than upon the owner who fails to co-operate at all. Further, the very clause upon which respondent Chase relies does not at all events entitle the mortgagee to the whole of such surplus, but only to “ such surplus or such part thereof as the court may determine ” This, too, negatives any intent upon the part of the Legislature absolutely to invest the mortgagee with the right to the rents and profits before he has taken possession thereof. And there is still a further obstacle which would arise in the application of the statute. The Legislature has made no provision as to which of the several mortgagees is entitled to the rents and profits, and yet, under the statute as read by respondent Chase, each mortgagee might obtain a personal judgment against the last record owner for the amount of the rents and profits. Had the Legislature intended to require the last record owner to act as the equivalent of a receiver of the rents and profits as a condition for the moratorium, there would have been some statutory provision indicating the manner in which the owner should apportion the surplus among the several mortgagees, for surely it cannot be that the Legislature would render the owner liable to each mortgagee for the amount of the surplus. There is no alternative to this predicament if the statute, as now written, be construed to impose personal liability.

Not only does the argument of the mortgagee run counter to the specific provisions of the statute, but it is also contrary to the general purport of the statute. The right to rents and profits ordinarily is an incident of the ownership of land, yet it is contended that by the very legislation which was intended to protect property owners in their possession of land, property owners were deprived of one of the most important attributes of ownership. This contention - is supported by extracting from its context a portion of a sentence. Even if it were conceded that the single clause is ambiguous when standing alone, the meaning sought to be elicited from it by respondent Chase is negatived by the language which both precedes and follows the clause in question. Had the Legislature intended so radical a change in property relationships, surely the intent would be expressed in a more forthright manner. The general purport of the legislation, the sequence of its several sections, the explicit language and the anomalous consequences which would follow from the suggested interpretation, all refute the argument that it was intended to invest the mortgagee with the right of ownership of the rents and profits. The statute, read simply, provides only that upon default in making such payment as is determined by the court, the owner in possession loses the benefit of the moratorium and is relegated to such rights as he may have in the absence of the moratory legislation.

Computation of the surplus. Guardian contends' that Special Term erred in determining as a matter of law that certain items be included as income, and that certain others be excluded from the allowable disbursements. We proceed to a consideration of these items.

Interest on the third mortgage. Guardian seeks to be credited with the interest on the purchase-money mortgage which it executed in favor of Woodbridge. Respondent Chase contends that the mortgage in question is fictitious, and further, that since it was executed subsequent to July 1, 1932, it is expressly excluded by section 1077-g, entitled “ Mortgages not affected,” wherein it is provided that all mortgages executed after July 1, 1932, are excluded from the operation of the several sections of the moratory statute, including section 1077-c. The purchase-money mortgage, constituting a third mortgage on the property, was executed on or about December 31, 1938. Respondent Chase apparently concedes that interest on a junior mortgage, executed prior to July 1, 1932, would be deductible. Appellant Guardian contends that, if the reasons advanced by Chase be correct, interest on a mortgage executed after July 1, 1932, would not be deductible even though the mortgage constituted a superior hen. Whether it would be proper to deduct interest on a junior mortgage executed prior to July 1, 1932, or on a mortgage executed after that date but constituting a superior hen, need not now be decided. At present it is sufficient to determine that interest on a junior mortgage executed after July 1, 1932, is not deductible. If interest on such mortgages were to be deducted in determining surplus, then the rights of mortgagees holding superior hens would be impaired. It is the plain intent of the statute to protect property owners from foreclosure of mortgages existing as of July 1, 1932, As to mortgages executed after that date, no restraint has been imposed upon the right of the mortgagee to foreclose. Thus, as to a junior mortgage executed after July 1, 1932, the owner in possession would be hable to lose the property for default in the payment of principal as well as of interest, and the argument used to justify the deduction of interest in order to prevent foreclosure by the third mortgagee is equally applicable to payments made in meeting the principal charges of the junior mortgage, a result clearly not intended and not warranted by the statute.

Social security and unemployment insurance taxes. These items have not been allowed as deductions. • Respondent Chase argues that only real estate taxes are deductible, but does not deny that wages and salaries of building employees are deductible. Whether or not unemployment insurance and social security taxes are taxes ” within the meaning of the term in the phrase “ taxes, interest and all other carrying charges,” these items are included in the concept of carrying charges, for they are levies upon payrolls, and are an incident to the expense of engaging employees. Items in this category should be allowed as deductions upon proper proof of the expenditure having been made.

As to the numerous other detailed items, it is sufficient to say that upon this record Special Term was warranted in ruling as it did.

Chase’s Appeal. Appellant Chase seeks to maintain a surplus-money proceeding against Woodbridge, which was not the last record owner of the property. Although the dissent in the Appellate Division concerns only so much of the order as related to Guardian, Chase may appeal as of right. The situation is analogous to that concerning modifications and is governed by the same rule. (Gambold v. MacLean, 254 N. Y. 357, 362; Cohen on the Powers of the New York Court of Appeals, p. 134.)

Appellant Chase renes upon the decision of this court in Matter of Pink v. Cord Meyer Co. (279 N. Y. 236) for the proposition that a surplus-money proceeding may be maintained against a prior owner. A reading of the opinion in that case discloses that the question there presented concerned the right of a mortgagee to apply under section 1077-c against the owner of the fee and the lessee where both had executed the mortgage. For the purposes of the statute, each was the last record owner. Appellant Chase seeks to proceed against the prior owner in connection with its argument discussed upon Guardian’s appeal, to the effect that section 1077-c imposes personal liability for the amount of the surplus. The statute is explicit in limiting surplus-money proceedings to the last record owner. Further, such a proceeding against a prior owner would be pointless inasmuch as he is no longer in possession and the loss of possession is the sole consequence of default in making the payment directed by the court in such a proceeding. Appellant Chase also seeks to hold Woodbridge upon the theory that the latter corporation is but the alter ego of Guardian. The relationship between Guardian and Woodbridge need not now be determined for if appellant Chase be correct in its view, any judgment obtained against Guardian may be enforced against Woodbridge upon proof which would warrant disregarding the corporate entity.

Second case. This involves the second surplus-money application by Chase, and covers the period from June 30, 1939, to November 1, 1939. The Appellate Division has certified two questions, first, whether a surplus-money proceeding may be brought by a mortgagee who is already entitled to maintain an action to foreclose, and second, whether a surplus money application may be made in regard to a period of less than six months.

Section 1077-c explicitly provides that an application for the determination of the surplus must be made for the period of six months prior to the application. Since this is a statutory proceeding, it is clear that there is no alternative but to require that an application must cover a six months’ period. The Legislature was "unquestionably empowered to adopt a reasonable procedure, and compliance therewith may not be evaded. (Matter of Mortgage Corp. v. Menan Realty Corp., 258 App. Div. 429; affd., 282 N. Y. 724.) It follows that the second question must be answered in the negative and, accordingly, the first question need not be answered.

Third case. This involves supplementary proceedings by Chase to enforce the personal judgment entered as a result of the orders in the first surplus-money application. The Appellate Division has certified three questions, first, whether section 1077-c authorizes the entry of a money judgment in favor of the mortgagee; second, whether section 1077-c violates the State and Federal Constitutions if it be construed to authorize the entry of a money judgment; and, third, whether the motion to vacate the subpoena was improperly denied for the reason that a prior subpoena and supplementary proceeding were pending.

Chase contends that the first and second questions should not be answered because to do so would allow a collateral attack upon a judgment. However, this argument overlooks the fact that while a judgment may not be attacked collaterally, for mere errors or irregularities, none the less it is open upon collateral attack to deny the jurisdiction of the court to enter such a judgment. In view of the determination of the appeal of Guardian in the first case, the first certified question should be answered in the negative. The second and third questions, therefore, need not be answered.

In the first case, upon the appeal of Guardian Realties, Inc., the orders of the Appellate Division and the orders of the Special Term should be reversed, without costs, and the matter remitted to the Special Term for further proceedings not inconsistent with this opinion; upon the appeal of Chase National Bank the orders of the Appellate Division and of the Special Term should be affirmed, with costs to respondent Woodbridge.

In the second case the order of the Appellate Division should be reversed and that of the Special Term affirmed, without costs. The second question is answered in the negative. The first question is not answered.

In the third case the orders of the Appellate Division and of the Special Term should be reversed and the motion to vacate the subpoena granted, without costs. The first question is answered in the negative. The second and third questions are not answered.

In the first case, Loughran, Rippey, Sears, Lewis and Conway, JJ., concur; Lehman, Ch. J., concurs as to the exclusion of interest on purchase money mortgage only on the ground that the evidence is sufficient to sustain a finding that the mortgage was not made in good faith.

In the second and third cases, Lehman, Ch. J., Loughran, Rippey, Sears, Lewis and Conway, JJ., concur.

Ordered accordingly.


author: Loughran, J.

text:
    Bankers Trust Company, Appellant, v. 1 East 88th Street Corporation, Respondent, Impleaded with Another.
    Argued June 5, 1940;
    decided July 24, 1940.

      Vermont Hatch, Richard L. Maloney, Jr., and Brackley Shaw for appellant.
    Assuming that where the provisions of section -1083-a of the Civil Practice Act are applicable it is necessary that a judgment of foreclosure and sale adjudicate liability on the bond (and consequently for a deficiency if a deficiency judgment be allowed later), then the judgment of foreclosure and sale in the present case is sufficient, especially if it is viewed, as it may be viewed, in the light of the record. (People ex rel. Congress Hall v. Ouderkirk, 120 App. Div. 650; Pneumatic Scale Corp. v. Mainwaring, 286 Fed. Rep. 378; Clay v. Hildebrand Bros. & Jones, 34 Kan. 694; Sharp v. Zeller, 114 La. 549; Rodee v. City of Ogdensburg, 86 Misc. Rep. 229; Matter of Cullen, 163 Misc. Rep. 410; Banning v. Sabin, 41 Minn. 477; Flack v. Andrews, 86 Ala. 395; Louisville, St. L. & T. R. R. Co. v. Barrett, 13 Ky. L. Rep. 232; Nordstrom v. Payne, 86 N. J. L. 361.) Under the provisions of section 1083-a of the Civil Practice Act and the new policy of the State declared thereby, it is no longer proper for the judgment of foreclosure and sale to contain a judgment for the provisional personal liability for a deficiency. It is sufficient if the judgment of foreclosure and sale preserves plaintiff’s right to apply for a deficiency judgment. (Heiman v. Bishop, 272 N. Y. 83; Equitable Life Ins. Society v. Stevens, 63 N. Y. 341; Jamaica Sav. Bank v. M. S. Investing Co., 274 N. Y. 215; Feiber Realty Corp. v. Abel, 265 N. Y. 94; Bondy v. Aranson & List Realties, Inc., 227 App. Div. 136; Emigrant Industrial Sav. Bank v. Van Bokkelen, 269 N. Y. 110; Honeyman v. Hanan, 275 N. Y. 382.) The Court of Appeals has the power under section 105 of the Civil Practice Act to correct or supply any mistake, omission, irregularity or defect in this judgment or to disregard any such mistake, omission, irregularity or defect. (S. J. E. Building Corp. v. Matt O. M. Construction Co., 265 N. Y. 282.)

      Walter H. Liebman, D. William Leider and Harold I. Cammer for respondent.
    The final judgment of foreclosure and sale does not adjudicate that the defendant-respondent is liable for a deficiency judgment. (Calvo v. Davies, 73 N. Y. 211; Paine v. Jones, 76 N. Y. 274; Rutherford Realty Co. v. Cook, 198 N. Y. 29; N. Y. Life Ins. Co. v. Guttag Corp., 265 N. Y. 292; Honeyman v. Hanan, 275 N. Y. 382; 302 U. S. 375; Honeyman v. Jacobs, 306 U. S. 539; Tinkelman v. 415 E. 12th St. Corp., 251 App. Div. 377; Smith v. Gold, 168 Misc. Rep. 404; Morris v. Morange, 38 N. Y. 172; Wager v. Link, 134 N. Y. 122; Feiber Realty Corp. v. Abel, 265 N. Y. 94; Emigrant Ind. Sav. Bank v. Van Bokkelen, 269 N. Y. 110; Guarantee Title & Mortgage Co. v. Scheffres, 275 N. Y. 30.) The second question certified does not present any proposition decisive of the appeal and requires no answer. An adjudication of liability cannot be created in a final judgment in the light of the record. (Baehr v. Smith, 169 App. Div. 574; Matter of Grifenhagen v. Ordway, 218 N. Y. 451.) The absence of an adjudication of liability for a deficiency cannot be disregarded under section 105 of the Civil Practice Act. (Feiber Realty Corp. v. Abel, 265 N. Y. 94; Herpe v. Herpe, 225 N. Y. 323; Baehr v. Smith, 169 App. Div. 574; Conger v. Callahan, 252 App. Div. 867; Tousey v. Barber, 132 Misc. Rep. 861.)
   Loughran, J.

The action is one to foreclose a real property mortgage. Plaintiff’s application under Civil Practice Act, section 1083-a, for leave to enter a deficiency judgment against the defendant 1 East 88th Street Corporation was denied at Special Term. The Appellate Division affirmed by a divided vote and allowed the plaintiff to bring the case here. Three questions have been certified. Plaintiff has also appealed as of right. The permission to appeal was unnecessary. Accordingly the questions certified will not be answered, but it will be convenient to use them as statements of the issues.

The first question is as follows: “ Does the final judgment of foreclosure and sale adjudicate that the defendant 1 East 88th Street Corporation is liable for a deficiency judgment that may be allowed on application to the Court pursuant to the provisions of section 1083-a of the Civil Practice Act?” The sole provision of the judgment imrespect of a deficiency is in these words: * * * that if the proceeds of such sale be insufficient to pay the amount so reported due the plaintiff, with the interest and costs and additional allowance and interest thereon as aforesaid, that said Referee specify the amount of such deficiency in his report of sale, without prejudice to any rights of the plaintiff to make application for the entry of a deficiency judgment in accordance with Sections 1083 and 1083-a of the Civil Practice Act * * This is not an adjudication of the liability of any party for a deficiency.

The second question is as follows: In the light of the judgment roll, does the final judgment of foreclosure sufficiently adjudicate that 1 East 88th Street Corporation is hable for any deficiency judgment that may be allowed on application to the court pursuant to the provisions of said judgment and section 1083-a of the Civil Practice Act? ” We assume that the courts below had power to read the judgment as a sufficient determination of the provisional personal liability of the defendant 1 East 88th Street Corporation for a deficiency, if the right of the plaintiff to that relief was clear upon the judgment roll. But no statute directs that an adjudication of such a liability must in that case be deduced from the record. In the Court of Chancery the orthodox practice was to supply by a separate and distinct order a failure of the judgment to determine liability for a deficiency. (Sprague v. Jones, 9 Paige, 395.) No order of that kind was sought by this plaintiff. We cannot say that none was necessary. Where no mandatory statute is applicable, we have no function to deal with matters of practice in the lower courts. (Cf. Moore v. Shaw, 77 N. Y. 512.)

The third question is as follows: If there was a mistake, omission, irregularity or defect in the final judgment of foreclosure and sale, should the Court pursuant to the provisions of section 105 of the Civil Practice Act, have disregarded such mistake, omission, irregularity or defect and directed the fixation of a deficiency judgment pursuant to section 1083-a of the Civil Practice Act? ” Section 105 provides that an omission may be supplied in the discretion of the court ” and must be disregarded “ if a substantial right of any party shall not be thereby prejudiced.” The power so conferred was not invoked by plaintiff in the courts below. This third question is not before us.

The order should be affirmed, with costs.

Lehman, Ch. J., Finch, Rippey, Sears, Lewis and Conway, JJ., concur.

Order affirmed.