text:
    The People of the State of New York, Respondent, v. Le Roy J. Miller, Appellant.

      (Argued June 8, 1931;
    decided July 15, 1931.)

      R. J. Shanahan for appellant.
    The exclusion of the public from the court room by the trial judge was a denial of a public trial to which the defendant was entitled,- and reversible error. (People v. Qualey, 210 N. Y. 202; Lee v. Brooklyn Union Pub. Co., 209 N. Y. 245; People v. Hall, 51 App. Div. 57; People v. Thorn, 156 N. Y. 286; People v. Murray, 89 Mich. 276; State v. Brooks, 92 Mo. 273; People v. Kerrigan, 73 Cal. 223; People v. Yeager, 113 Mich. 228; People v. Hartman, 103 Cal. 242.) Reversible error was committed in refusing defense counsel the inspection and use upon the trial of the letters of the deceased. (Schwickert v. Levin, 76 App. Div. 373; People v. Becker, 210 N. Y. 274; People v. Cole, 43 N. Y. 508; Green v. State, 53 Tex. Crim. Rep. 490; State v. Bacon,
      41 Vt. 526.) It was error for the court to refuse to direct the district attorney to turn over to defendant’s counsel the grand jury testimony of certain of the defendant’s witnesses. (Schwickert v. Levin, 76 App. Div. 373; People v. Wilcox, 245 N. Y. 404.)

      Clarence Unckless, District Attorney (William C. Martin and De Banks M. Henward of counsel), for respondent.
    The exclusion of a part of the general public from the court room during the trial was within the sound discretion of the court, and was not error. (People v. Hall, 21 App. Div. 57.) The denial of the trial judge in permitting defendant’s counsel the inspection and use upon the trial of the letters of the deceased was a proper discretion and in no way prejudiced the rights of the defendant. (People v. Becker, 210 N. Y. 274; People v. Cole, 43 N. Y. 508; People v. Fabri, 251 N. Y. 572.) It was not error for the court to refuse to direct the District Attorney to turn over to defendant’s counsel the grand jury testimony of certain of the defendant’s witnesses. (Code Crim. Proc. §§ 265, 266.)
   Cardozo, Ch. J.

The evidence amply sustains the verdict that the defendant shot and killed Gladys Blaich with a deliberate and premeditated design to cause her death.

An opinion would not be necessary if it were not for erroneous rulings of the trial judge which in this case were harmless, but which if repeated in other cases, where guilt is not so clearly proved, might cause justice to be thwarted.

The defendant’s mother, Mary Miller, gave testimony as to the defendant’s life history and his relations to the murdered woman. On cross-examination, she was questioned by the District Attorney as to her statements on the same subject when examined by the grand jury. At the stage of redirect examination, counsel for the defendant made demand upon the District Attorney that he be permitted to inspect the copy of the minutes of the grand jury from which the District Attorney had been examining in so far as they included the testimony of the witness then upon the stand. The demand was refused, and upon the protest of counsel the court upheld the refusal.

We think the minutes to the extent demanded should have been offered for inspection. The People invoke the rule whereby the secrecy of the proceedings before the grand jury must be preserved inviolate (Code Crim. Pro. § 265). It is a rule not without exceptions, some of them declared by statute (Code Crim. Pro. § 266), others implied by courts when essential to the ends of justice (People ex rel. Hirschberg v. Bd. of Supervisors, 251 N. Y. 156, 170, 171; Attorney-General v. Pelletier, 240 Mass. 264; State v. Campbell, 73 Kan. 688; 5 Wigmore on Evidence, §§ 2360-2363). The District Attorney might have refrained, if he had pleased, from asking the witness anything about her previous testimony. He was not at liberty, after exhibiting so much of it as was helpful to the People, to deprive the defendant of the privilege of exhibiting the residue.

The error, for such it was, was not so substantial in its bearing on the fate of the defendant as to call for a reversal of the judgment of conviction (Code Crim. Pro. § 542). What was said by Mrs. Miller before the grand jury, though left unqualified by anything else that she may have said at the same time, was • too trivial in its significance, too fully in accord with the testimony on her direct examination by counsel for the defendant, to have counted as a material factor in the choice of innocence or guilt. There is no reasonable possibility that the qualifying statements, if any such there were, could have changed the verdict of the jury if the defendant had been allowed to prove them.

What is true of the testimony of the witness Mary Miller, is true, and for like reasons, of the testimony of other witnesses, Shapiro and Keville. Their testimony before the grand jury as brought out by counsel for the People was not at variance, in any substantial measure, with their testimony at the trial as brought out by the defense. There is no suggestion in the record that the complete minutes, if produced, would have shown any testimony qualifying or retracting what had been quoted by the People. Even if they would, there is no reasonable possibility that a different verdict would have followed.

The defendant complains also of the refusal of the court to allow him to inspect letters marked for identification. Manning, a state trooper, testified for the People that he had visited the home of Gladys Blaich, and in her room had found letters, from which he had gathered ten that appeared to be in the same handwriting. These letters were marked for identification. They were never offered in evidence. There is nothing to show who wrote them. They were produced as a batch of papers found in a stated place, and there the matter rested.

The defendant did not attempt to cross-examine about the contents of these writings while Manning was on the stand. After the close of the People’s case, however, he asked permission to inspect them. The refusal of the judge to direct the counsel for the People to comply with his request is now assigned as error.

When documents present in court are of such a nature that if called for by a subpoena they would be subject to inspection by the adverse party, the duty of the judge is to direct the holder of the documents to produce and exhibit them (Boynton v. Boynton, 16 Abb. Pr. 87; affd., 41 N. Y. 619; Hunton v. Hertz & Hosbach Co., 118 Mich. 475; Kincaide v. Cavanagh, 198 Mass. 34, 36; 4 Wigmore on Evidence, § 2200). Indeed, he may do so in his discretion, though the documents are not in court, if they are procurable by a witness or a party subject to his orders (Commonwealth v. Lannan, 13 Allen, 563; Kincaide v. Cavanagh, supra.) The formality of a subpoena ought not to be insisted on when it will serve no useful purpose, and least of all to the prejudice of one in jeopardy for a capital offense. On the other hand, the judge is not under a duty to compel the production of the documents at the very moment they are called for by counsel for the prisoner, unless the circumstances of the case make them presently important, as where they are necessary for the purpose of cross-examination then and there. A reasonable discretion may be exercised as to the time most consonant with justice. Documents in the possession of the prosecutor and marked for identification may be so related to the proof of guilt that their contents ought not to be divulged at the moment of the marking. Justice will sometimes be promoted if disclosure of the contents is withheld till the fabric of the proof shall be more fully and closely woven. The rights of a defendant will generally be sufficiently protected if inspection is permitted before the case is closed.

We think the ruling of the court, amounting as it did to a refusal to direct the inspection of the letters at any stage of the trial, was error whereby the defendant would be aggrieved if there were a reasonable possibility that it had an effect upon the jury. The letters were not the private memoranda of the prosecuting officer (People ex rel. Lemon v. Supreme Court, 245 N. Y. 24, 34.) They were the belongings of the murdered woman, found in her home, and identified in court. But the failure to exhibit them, if error, was harmless in its consequences. The letters were not required for the present examination of the witness Manning. The witness had left the stand, and was no longer in the courtroom, and even if he had been at hand, there was nothing in his testimony that could have been changed or affected if the contents of the letters had been known to the examiner. Not only were the letters unnecessary for present cross-examination; they were unnecessary at any stage. They were produced by the District Attorney on the argument of the appeal in this court, and left for inspection by the judges. We may doubt whether they would have been admissible in evidence if the defendant had chosen to offer them, with the exception perhaps of one as to which the People may have opened the door by cross-examination. The only conceivable purpose they could have served would be to exhibit the defendant’s state of mind in his relations to the murdered woman, and this was not disputed. If, however, the assumption be 'made that they would have been admissible for some purpose, either the one suggested or some other, it is certain that they would have been ineffectual to vary the result. There is nothing in any of them inconsistent with the testimony of any of the witnesses or tending to exhibit in a more favorable light the undisputed relations between the defendant and the woman. We follow, ,■ therefore, the course pursued in People v. Kahn (254 N. Y. 567), where a ruling, not dissimilar, was made by the trial judge, and disregard the error in accordance with the mandate of the statute (Code Crim. Pro. § 542).

The defendant complains of an order of the trial judge whereby visitors were excluded from the courtroom, with a resulting denial, it is said, of the privilege of a public trial assured by the statute to one accused of crime (Code Crim. Pro. § 8; Judiciary Law; Cons. Laws, ch. 30, § 4). The trial was not secret. Not only all the witnesses, but also representatives of the public and in particular, so it is said, representatives of the press, were permitted to be present. The purpose of the trial judge in the exclusion of the public generally was to promote sanitary conditions by keeping the air pure and fresh in what would have been otherwise a crowded courtroom. The trial was a protracted one, lasting three weeks, and there was need, or so the judge believed, to safeguard the health of the jurors and of others whose duty was to be there. Whether the ruling would be upheld if there had been timely protest by the defendant, there is no occasion to consider (cf. People v. Hall, 51 App. Div. 57; People v. Murray, 89 Mich. 276; Reagan v. United States, 202 Fed. Rep. 488). Instead, he heard it without objection and even with the approval of his counsel till the verdict had been announced. We are satisfied that justice does not require a new trial (People v. Semione, 235 N. Y. 44).

The judge instructed the jury that they were to approach the consideration of the evidence with a presumption that Gladys Blaich had committed suicide and had not come to her death át the hands of the defendant. This ruling is not complained of by the defendant. It is a ruling in his favor. It has support in the decision of this court in People v. Creasy (236 N. Y. 205). Upon reconsideration of the doctrine of that case, we are unanimously of the opinion that to the extent of its recognition of a presumption of suicide it should now be disapproved. There is indeed a presumption in the absence of inculpatory evidence that death was not caused by the criminal act of the defendant, for this is merely a restatement in another form of the presumption of innocence. There is no presumption that it was caused in any particular way, whether by suicide, by the defendant himself through innocent misadventure, or by the act of some one else, undetected or unknown.

The judgment of conviction should be affirmed.

Pound, Crane, Lehman, Kellogg, O’Brien and Hubbs, JJ., concur.

Judgment of conviction affirmed.


source: Caselaw Access Project

author: Pound, J.

license: Public Domain

text:
    City Bank Farmers Trust Company, as Executor of and Trustee under the Will of Peter C. Hewitt, Deceased, Appellant, v. Hewitt Realty Company et al., Respondents.
    (Argued June 2, 1931;
    decided July 15, 1931.)

      Charles A. Collin, JohnL. Wells and Thomas L. Hughes for appellant.
    Upon the facts the court should exercise its jurisdiction to compel the declaration of dividends. (Kavanaugh v. Kavanaugh Knitting Co., 226 N. Y. 185; Kroger v. Jaburg, 231 App. Div. 641; Hiscock v. Lacy, 9 Misc. Rep. 578; Ochs v. Maydole Hammer Co., 138 Misc. Rep. 665; Dodge v. Ford Motor Co., 204 Mich. 459; Hazeltine v. Belfast & C. R. R. Co., 77 Me. 445; Fougeray v. Cord, 50 N. J. Eq. 185; Laurel Springs Land Co. v. Fougeray, 50 N. J. Eq. 756.)

      Albert S. Wright and ETlwood Thomas for respondents.
    The directors exercised a proper and wise discretion in not declaring dividends and they were not actuated by bad faith, dishonest purpose of other improper motive. (Kavanaugh v. Kavanaugh Knitting Co., 226 N. Y. 185; Karnes v. Rochester & Genessee Valley R. R., 4 Abb. Pr. [N. S.] 107.)
   Pound, J.

Plaintiff, a stockholder of defendant corporation, holding 100 shares of stock in trust as part of a trust created by the will of Peter Cooper Hewitt, seeks by this action to compel declaration of dividends by the individual defendants, directors of the corporation.

The Hewitt Realty Company was organized in 1905, under the laws of the State of New York, to invest in real property, improved and unimproved, situated in the State of New York and in other States of the United States andjn foreign countries; and in the stocks, bonds and other securities and obligations of other corporations and of individuals, and in personal property generally of whatsoever nature; to acquire such real and personal property by purchase, lease, gift, devise, bequest, appointment or other lawful manner; to hold, manage, lease, mortgage, pledge and sell the same, and to improve and develop real estate by erecting buildings thereon and by carrying on agriculture, forestry, mining and quarrying thereon and to conduct all lawful business incidental thereto.” Its authorized capital stock was 600 shares of the par value of $10 each, all of which was issued to Sarah Amelia Hewitt in exchange for real property in New York city and Bar Harbor, Maine, actually worth $255,050. A New Jersey corporation, known as the Ringwood Company, was organized at the same time and for the same purposes and in the same way. Mrs. Hewitt transferred the Hewitt stock to the Ringwood Company. Upon her death in 1912 the Ringwood stock was divided among her six children who afterwards acquired the Hewitt stock as a stock dividend. Peter Cooper Hewitt, the plaintiff’s testator, was one of the children. He had married a second wife, Maryon J. Hewitt. They had a daughter, Ann Cooper Hewitt. He died August 25, 1921, leaving a will. By the terms of the will the plaintiff, as trustee of the trust fund above mentioned, is entitled to receive the dividends declared on 100 shares of stock in the Hewitt Realty Company. One-third of the income of the trust fund is to be applied by the plaintiff as such trustee to the use of the surviving wife, Maryon (since remarried and now Maryon McCarter), and the remaining two-thirds of said income is to be applied by the trustee to the use of their daughter, the said Ann Cooper Hewitt, the sole surviving issue of said Peter Cooper Hewitt.

Maryon McCarter and Ann Cooper Hewitt can receive nothing but income from the trust fund and it is contended that unless dividends are declared they will have no income therefrom. The corpus goes elsewhere when they die. The board of directors is controlled by the Hewitt family. It has acquired real estate, large in extent and valuable in amount, which it does not sell.

The situation of all the other life beneficiaries in respect to dividends is identical. Mrs. Maryon (Hewitt) McCarter and her daughter deem themselves aggrieved although the others are content. During his lifetime Peter Cooper Hewitt was a director of the corporation and as such up to 1918 approved the policy and transactions of the board. The corporation has made no new purchases of property since the death of Peter Cooper Hewitt. It declared and paid dividends at the rate of five and three-fourths per cent on its capital stock of $6,000 in the year 1906 and at the rate of six per cent in each of the years from 1909 to 1922, inclusive, but has paid no dividends since 1922. The company started out with a capital of $6,000 and a book surplus of $249,050, which might have been realized on and divided among the stockholders when the real estate was sold if such was the purpose of the corporation, but dividends are declared on the shares of stock and not on surplus.

The balance sheet of the company’s affairs as of October 1, 1929, as claimed by plaintiff, shows that it had real estate of the value of $1,735,000 incumbered, under lease and paying a substantial rental; cash $43,484.96; mortgages and accounts $516,803.79, making a total of $2,295,288.75. It had a substantial book excess of assets over liabilities. The trial court has found that, although its net profits from 1924 have been from $60,000 to $100,000 a year, its readily liquid assets do not exceed the reasonable requirements of the company to enable it to meet its future needs and to provide a reserve against contingencies which are reasonably apt to arise in the near future, for payment of mortgages and improvement and repairs of real property.

The policy of the directors of the company of not paying dividends has been based on their belief that all substantial indebtedness of the company should be liquidated before dividends are declared. This policy was recognized by the plaintiff in a letter to the corporation dated May 12, 1924, when it said: We presume that it would hardly be possible to pay dividends on the stock * * * let us know, first, if there is any further indebtedness to be paid and secondly, whether there is any likelihood of dividends being resumed on the stock of the Hewitt Realty Company.” It was not until March, 1927, that it wrote: “in view of the company’s very large surplus and its present strong position may we urge that the directors inaugurate the declaration of regular dividends.”

Regular dividends of six per cent on 100 shares of $10 each would be $60 a year. We cannot expect that this action is maintained for the purpose of compelling the defendants to declare such a nominal dividend although they are abundantly able to do so. The purpose of the action plainly is to compel them to declare a dividend which shall approximately represent the excess of the value of corporate assets above the aggregate amount of debts and liabilities, including capital or capital stock as the case may be. (Stock Corp. Law; Cons. Laws, ch. 59, § 58.) In other words, the plaintiff now in substance insists on a partial liquidation by the sale of real estate and securities and a division among the stockholders of the proceeds thereof in the form of dividends.

The court below has found that the directors have acted within a proper discretion in not declaring dividends to the stockholders. The plaintiff, to succeed on this appeal, must establish as matter of law that the action of the directors on this record was inimical to the welfare of the corporation and all its stockholders. (Kavanaugh v. Kavanaugh Knitting Co., 226 N. Y. 185; Lindgrove v. Schluter & Co., 256 N. Y. 439.) It seeks to do this in part by showing that Erskine Hewitt, president and director of the company, is prejudiced by personal animosity against Mrs. McCarter, formerly Hewitt, and her daughter. That such personal animus is visible may not be denied but it does not follow that the impelling motive of the action of the board was such ill-feeling. On the contrary, the old policy has been continued, not as a freeze-out policy, but to pay debts and provide against emergencies. All the life beneficiaries have suffered alike, unaffected, it would seem, by family differences. The trial court was justified in refusing to make plaintiff’s requested finding in this regard.

Nothing else remains to suggest bad faith except the course of business itself. A court of equity will protect a minority stockholder against conduct of the directors which is in breach of the trust confided in them and injurious to the stockholders, but on questions of expediency the courts cannot assume to pass. Such questions are confided by the Legislature in the directors. The courts can, and in a proper case will, compel the trustees to observe the obligations of fiduciary relationship which the law imposes on them. Bad faith, fraud or other breach of trust are grounds for equitable relief. (Kavanaugh v. Kavanaugh Knitting Co., supra, p. 196.) In particular, if the directors refuse needlessly and improperly to divide what are actually surplus profits, the stockholders have an adequate remedy. (Dodge v. Ford Motor Co., 204 Mich. 459, 501.)

In the judgment of the court below, the directors of defendant corporation in withholding dividends acted honestly, in good faith and in the exercise of an honest and unbiased judgment. The questions as here presented are questions of fact about which reasonable men might possibly differ. It cannot be said the decision has no evidence to sustain it. It might be unfair to stockholders for a business corporation constantly to expend its profits in the extension of its business without heed to the claims of stockholders. But that is not this case. This company was formed and has been carried on for the purpose of accumulating profits from year to year and embarking them in its long-continued real estate operations. It is a family affair. A strong case must be made out to compel the conclusion that it must divide its profits rather than pay its debts or extend its authorized business. The corporation was formed to buy and hold, improve and develop, as well as sell real estate. The state of mind of the directors is displayed as that of men who in executing the corporate purpose would buy real estate on time to hold and sell when conditions are propitious and use the proceeds to pay off outstanding indebtedness. The world knows that such a corporation could not liquidate at this time without prospect of loss.

A minority stockholder has no standing to set aside corporate acts of the directors with one of their number where such acts are not tainted with fraud and are made openly and in good faith, even though the contracting director eventually makes a profit therefrom. (Hine v. Lausterer, 257 N. Y. 523.) As he may not annul such action, he cannot compel the directors to accept his judgment in matters of discretion.

The plaintiff is in the position of all minority stockholders, who cannot interfere with the management of the corporation so long as the trustees are acting honestly and within their discretionary powers.” (Burden v. Burden, 159 N. Y. 287, 308.) It may not compel the desired corporate action at this time.

The judgment should be affirmed, with costs.

Cardozo, Ch. J., Ceane, Lehman, Kellogg, O’Brien and Hubbs, JJ., concur.

Judgment affirmed.


author: Kellogg, J.

text:
    The People of the State of New York ex rel. The Hudson River Day Line, Appellant, v. Adolph Franck et al., as Assessors of the Town of Stony Point, Respondents.

      (Submitted June 1, 1931;
    decided July 15, 1931.)

      Horace B. Casey for appellant.
    The dock is the property of the State of New York. (People ex rel. Bear Mountain Hudson River Bridge Co. v. Dimond, 126 Misc. Rep. 239; 222 App. Div. 756; People ex rel. Van Nest v. Commissioners, 80 N. Y. 573; People ex rel. Muller v. Board, 93 N. Y. 308; People ex rel. International Nav. Co. v. Barker, 153 N. Y. 98.) The appellant is not the lessee of the dock. (Commissioners v. Lent, 240 N. Y. 1; Delaware-Hudson S. S. Co. v. Commissioners, 222 App. Div. 535; Woodruff v. Havemeyer, 106 N. Y. 129; Reeve v. Duryea, 144 App. Div. 647; Reynolds v. Van Buren, 155 N. Y. 120; Stockholm v. Borough Bill Posting Co., 144 App. Div. 642; United Merchants’ Realty & Imp. Co. v. N. Y. Hippodrome, 133 App. Div. 582; 201 N. Y. 601.)

      E. W. Hofstatter for respondents.
    Under the definition of “ land,” as used in the Tax Law, one person may be taxed as the owner of the fee and another as the owner of the structures thereon. (People ex rel. R. S. & E. R. Co. v. Moroney, 224 N. Y. 114; People ex rel. N. Y. C. & H. R. R. R. Co. v. Tax Commrs., 205 App. Div. 462; People ex rel. Van Nest v. Commrs., 80 N. Y. 577; People ex rel. Dunkirk & Fredonia R. R. Co. v. Assessors, 46 N. Y. 49; People ex rel. Muller v. Assessors, 93 N. Y. 308;
      People ex rel. International Nav. Co., v. Barker, 153 N. Y. 98.) The dock is the property of the relator until the expiration of twenty years, when it reverts to the State, and was properly assessed. (Delaware-Hudson S. S. Co. v. Commrs., 222 App. Div. 535.)
   Kellogg, J.

The Tax Law (Cons. Laws, ch. 60, § 2) defines “ land,” “ real estate ” and “ real property ” to include “ all buildings and other articles and structures,” as well as “all wharves and piers ” erected upon land above or under water. In cases involving tax assessments, therefore, it matters not that, at the common law, a building erected upon the lands of another, pursuant to an agreement with the landowner that at the end of a term the builder may remove it, is sometimes classed as personal property belonging to the builder. (Smith & Britton v. Benson & Peck, 1 Hill, 176.) The building is real estate assessable as such to the builder as its owner, while the land upon which it stands remains subject to assessment against the landowner. (People ex rel. Abrams v. Commrs. of Taxes, 52 N. Y. 659; People ex rel. Van Nest v. Commrs. of Taxes, 80 N. Y. 573.) However, such a case presents an exception, by force of the statute, to the ordinary rule, that, “ when structures are erected by persons not owners of the land, they become part of the realty, and, as such, the property of the landowner.” (People ex rel. International Nav. Co. v. Barker, 153 N. Y. 98.) To establish the exception, clear and explicit language must be employed., indicating with precision that the builder retains the right of removal and remains the owner. “ It requires an agreement to be expressed in order to prevent the operation of this rule.” (People ex rel. International Nav. Co. v. Barker, 153 N. Y. 98, 101.) The agreement between the relator and the Commissioners of Palisades Interstate Park of New York, pursuant to which the former erected at Bear Mountain a covered dock, built upon lands under water belonging to the State of New York contains no provision reserving to the relator a right oí removal or conferring upon it the ownership of the structure. It constitutes a mere license or franchise to the relator to erect the dock and to use it for a period of twenty years, for the purpose of landing steamers carrying passengers and baggage. True it provides that at the end of the twenty-year period the dock shall revert to and become the property of the party of the first part ” (the Commissioners). Sheds erected by a steamship company upon docks leased to it by a city pursuant to an agreement with the lessor, which provided that they shall become the property ” of the city upon the termination of the lease, are not removable by the lessee, nor are they real estate for which the lessee may be assessed as owner during the term of the lease. (People ex rel. International Nav. Co. v. Barker, supra.) Such language does not warrant the inference of an intermediate ownership; unless we attach an undue significance to the word become. ’ Such a meaning we do not think should be attached to that word.” (Same case at p. 101.) Nor do we find any justification for the assessment of the property as a leasehold interest ” of lands owned by the State, within section 5 of the Tax Law. The agreement does not employ the words lease ” or “ rent; ” does not purport to give possession to the relator; does not exact a rental. It merely provides that the relator shall erect the dock, and shall have the right to use it, for limited purposes, during a stated period. We find that the relator does not own the property, has no leasehold interest therein, and is not assessable therefor.

The order of the Appellate Division and that of the Special Term should be reversed, and the assessment annulled, with costs in all courts.

Cabdozo, Ch. J., Ceane, O’Beien and Hubbs, JJ., concur; Pound and Lehman, JJ., dissent.

Orders reversed, etc.


author: Crane, J.

text:
    The People of the State of New York ex rel. St. Albans-Springfield Corporation, Respondent, v. Henry L. Connell et al., Constituting the Board of Standards and Appeals of the City of New York, Appellants.

      (Argued June 1, 1931;
    decided July 15, 1931.)

      Arthur J. W. Hilly, Corporation Counsel (Willard S. Allen, J. Joseph Hilly and Martin H. Murphy of counsel), for appellants.
    The Board of Standards and Appeals did not abuse its discretion in denying relator’s application. (Matter of Goldenberg v. Walsh, 215 App. Div. 396; 242 N. Y. 576; Matter of N. & H. Building Co. v. Walsh, 223 App. Div. 844; People ex rel. Ruth v. Leo, 197 App. Div. 942; Lincoln Trust Co. v. Williams Bldg. Corp., 229 N. Y. 313; People ex rel. Facey v. Leo, 230 N. Y. 602; People ex rel. Helvetia Realty Co. v. Leo, 231 N. Y. 619; People ex rel. Sheldon v. Board of Appeals, 234 N. Y. 484; People ex rel. Smith v. Walsh, 211 App. Div. 205; 240 N. Y. 606; Matter of Sloan v. Walsh, 245 N. Y. 208; Matter of Sagamore Road Corp. v. Lee, 224 App. Div. 744; 250 N. Y. 532; Matter of Revorg Realty Co. v. Walsh, 225 App. Div. 774; 251 N. Y. 516; Matter of Wilkins v. Walsh, 225 App. Div. 774; 251 N. Y. 518; Matter of Beardsley Realty Co. v. Walsh, 225 App. Div. 815; 252 N. Y. 571.) Under the provisions of subdivision 4 of section 719-a of the New York Charter the Special Term was without power to direct the referee to take evidence de novo. (People ex rel. Helvetia Realty Co. v. Leo, 183 N. Y. Supp. 37; 195 App. Div. 887; 231 N. Y. 619; Civ. Prac. Act, § 1283; Matter of Multiplex Garage, Inc., v. Walsh, 213 App. Div. 155.)

      Stephen Callaghan for respondent.
    The only available use for the relator’s property is a gasoline service station. (People ex rel. Fordham M. E. Church v. Walsh, 244 N. Y. 280; People ex rel. Werner v. Walsh, 212 App. Div. 635; 240 N. Y. 689; Matter of Goldenberg v. Walsh, 215 App. Div. 396; 242 N. Y. 576; Matter of Revorg Realty Co. v. Walsh, 225 App. Div. 774; People ex rel. Smith v. Walsh, 211 App. Div. 205; 240 N. Y. 606.) The order of reference to take proof on the question of whether there are practical difficulties or unnecessary hardships herein was proper. (People ex rel. Helvetia Realty Co. v. Leo, 183 N. Y. Supp. 37; 195 App. Div. 887; 231 N. Y. 619; Matter of Caponi v. Walsh, 228 App. Div. 86; Matter of Mazzarell v. Walsh, 231 App. Div. 748; People ex rel. Hayman v. Walsh, 223 App. Div. 752; People ex rel. Gross v. Walsh, 213 App. Div. 878.)
   Crane, J.

The St. Aibans-Springfield Corporation is the owner of a vacant lot on the northeast corner of Foch and Springfield boulevards, in the borough of Queens, city of New York, having a frontage of 100 feet on Foch boulevard and 86.52 feet on Springfield boulevard. The section is in the outskirts of the city of New York in what is still a rural community and farm lands. Immediately south of Foch boulevard the land is still used for farming and this condition exists about hah a mile down Springfield boulevard toward the Merrick road. While some of the property has been laid out in building lots, almost the entire section consists of vacant land, there being only six buildings in the entire area extending 400 feet from the premises in each direction. Four of these are brick buildings, with stores in the ground floor and apartments for dwelling purposes overhead, which cannot be rented for enough to bring in a reasonable return upon the investment. As transit facilities do not reach this territory, it has been slow in development, the few families who do live in the neighborhood being transported by bus or in their own automobiles.

Pursuant to the Building Zone Resolutions adopted in accordance with the powers given the Board of Estimate and Apportionment, under section 242-a of the Greater New York Charter (Laws of 1901, ch. 466, amd. Laws of 1917, ch. 601), the relator’s property has been placed in a business district. Finding that it could not profitably dispose of the property either for residential or business purposes, it applied to the Board of Standards and Appeals to permit the erection upon the corner lot of a gasoline station. Section 21 of the Amended Building Zone Resolution of the City of New York permits the Board of Standards and Appeals to vary any provision of the zoning requirements where there are practical difficulties or unnecessary hardships in the way of carrying them out. After a brief statement of the case before the Board the application was denied, whereupon the relator obtained an order of certiorari to review the decision, pursuant to section 719-a of the charter. Upon the return of the Board, the Special Term made an order referring the matter to a referee to take proof of all practical difficulties and unnecessary hardships in the Way of carrying out the strict letter of the Zoning Resolution, reciting in the order that after hearing argument it was necessary to take testimony for the proper disposition of the case. The referee took testimony and made findings of fact and conclusions of law fully supported by the testimony taken. He found that Foch and Springfield boulevards are much traveled arterial highways, Foch boulevard being a continuation in the city of New York of the Southern State parkway, and Springfield boulevard running at right angles from Jericho turnpike south across the Merrick road connecting with the Rockaway boulevard. Travel upon both of these streets is very heavy through traffic. Stores or business would not benefit by such use of these streets as parking on the sides thereof would almost be prohibitive. There are no residences in the neighborhood to support a business either upon Foch boulevard or Springfield boulevard at or near the intersection thereof. Less than thirteen per cent of the lots in the area zoned for business are now used for business, and eighty-seven per cent of such lots are either unbuilt upon or the buildings thereon are unoccupied. Taking both sides of Foch boulevard and Springfield boulevard, for a distance of one mile north, east, south and west of their intersection, there are 1,481 lots zoned for business. On these 1,481 lots there are now erected 189 buildings with stores, 62 being vacant. Ninety-two per cent of the lots zoned for business are unoccupied. The entire area of property shown on the map has been laid out in streets regulated, graded and curbed, and consequently can be used only for building, business or dwellings. The business buildings, says the referee, could not be sold for a fair price, and they could not be rented, because the number of dwelling houses in the vicinity is not sufficient to support a business.

Turning to the evidence, we find officials from such large institutions as the Williamsburgh Savings Bank, the Dime Savings Bank, and the National Title Company testifying that their institutions will not loan a dollar in this business section. The property would simply come back on their hands, as the income would be insufficient to pay the carrying charges.

The referee, therefore, finds that loans cannot be obtained upon this business property on these highways. In addition to the taxes upon said property there is a lien by reason of an assessment levied for the construction of sewers. Those who have purchased lots from the relator in the vicinity have been unable to pay interest on their mortgages, taxes and assessments. The referee states as a fact that the site in question is not suitable for the erection of a business building of any character whatever, and that a gasoline-selling station is the only available use to which the property in question can be put.

Under such circumstances, is the relator to be deprived of all use of its property and any income therefrom by reason of this Zoning Resolution? There is no claim made by the relator that the zoning of this entire territory, according to the map in evidence, has been illegal and improper. It does claim, however, that as to it the restriction is unreasonable, arbitrary and illegal.

The report of the referee was confirmed by the order appealed from, which directs the Board of Standards and Appeals to grant the relief, and to permit the relator to erect upon his property the gasoline station as requested.

The Board of Standards and Appeals now questions the power of the Special Term to review its order in the manner indicated and insists that the Supreme Court is limited on certiorari to review merely the Board’s jurisdiction. It presses upon our attention the case of People ex rel. Helvetia Realty Co. v. Leo (183 N. Y. Supp. 37; affd., 195 App. Div. 887; 231 N. Y. 619). Judge Giegerich, at Special Term, said that the taking of proof, pursuant to the provisions of subdivision 4 of section 719-a of the Greater New York Charter, is limited to such matters as affected the jurisdiction of the body or officer whose action is sought to be reviewed, and hence the matter cannot be heard de novo. The affirmance of that case in this court was without opinion and without approval of this statement. The Board had permitted a variance which was approved by the Special Term and on appeal. The power of review given to the courts was not directly involved as it might have been if the application for a variance had been denied and the owner’s rights thus restricted.

The sections of the charter to which this opinion makes reference do not justify the limitation stated by the justice. Section 719-a gives to any person aggrieved by a decision of the Board of Standards and Appeals a right to present to the Supreme Court a petition setting forth that the decision is illegal in whole or in part, and specifying the grounds of the illegality. The justice of the court may allow a writ of certiorari directed to the Board of Appeals to review such decision and shall prescribe the time in which a return thereto must be made. Section 719-a (4) reads: If, upon the hearing, it shall appear to the court that testimony is necessary for the proper disposition of the matter, it may take evidence or appoint a referee to take such evidence as it may direct and report the same to the court with his findings of fact and conclusions of law, which shall constitute a part of the proceedings upon which the determinations of the court shall be made. The court may reverse or affirm, wholly or partly, or may modify the decision brought up for review.”

This procedure is not unlike the method by which tax assessments were reviewed. (People ex rel. Manhattan Ry. Co. v. Barker, 152 N. Y. 417.) Chapter 269 of the Laws of 1880 enacted that on the return to a writ of certiorari: If, upon the hearing, it shall appear to the court that testimony is necessary for the proper disposition of the matter, the court may take evidence or may appoint a referee to take such evidence as the court may direct, and report the same to the court, and such testimony shall constitute a part of the proceedings upon which the determination of the court shall be made.” (§ 4.) This court in the opinion in that case noted the novel functions ” attached to the writ of certiorari hitherto unknown to such methods of review. The special statutory writ now before us differs from its predecessors in one remarkable respect, in that it permits a redetermination of all questions of fact upon evidence, taken in part at least, by the Special Term, or under its direction” (p. 430).

The charter provisions, above referred to, likewise have this novel feature, that upon an appeal by the order of certiorari to the Supreme Court additional testimony may be taken upon which the court may reverse, or affirm wholly, or partly, or may modify the decision brought up for review. Practice followed in Anderson v. Jester (206 Iowa, 452); Sundlun v. Zoning Board of Pawtucket (50 R. I. 108); McCabe v. Zoning Board of Providence (50 R I. 449).

Because of the rather informal procedure before the Board of Standards and Appeals (Matter of Caponi v. Walsh, 228 App. Div. 86, 90), a further and more formal and judicial review by the Supreme Court was no doubt considered necessary in some circumstances. (See, also, People ex rel. Fordham M. R. Church v. Walsh, 244 N. Y. 280, 286.) All powers, however, have their inherent limitations to be applied with wisdom, judgment and discretion. A Special Term of the Supreme Court having this rather wide power to supplement the record is not supposed to exercise it as though it were the Board of Standards and Appeals. The power is to be used cautiously, with extreme care where there appears to be a probability that the effect of the additional testimony, if it is received, will be to show the ruling complained of to be wrong; and when the whole case comes to be decided upon the new testimony and the old, the court, even then, is not to put itself in the position of the Board, is not to substitute its own discretion for that of the administrative agency established by the statute in a situation where the exercise of discretion is possible. The necessity for a variance is to be determined under section 21 of the Amended Building Zone Resolution by the Board of Standards and Appeals. Its judgment should be final unless it clearly appears to be arbitrary or contrary to the law. The powers of the Board, as outlined in section 719, are very largely administrative, including much that has to do with the zoning situation. The courts must not trespass upon this administrative work, but confine their review to correcting legal errors. (Zahn v. Board of Public Works, 195 Cal. 497; Sundlun v. Zoning Board of Pawtucket, 50 R. I. 108.)

How far zone planning may encroach upon the free use of private property was considered by the United States Supreme Court in Nectow v. Cambridge (277 U. S. 183). The zoning plan, legal as to other property included within the district, was considered unconstitutional as to the particular property owned by one who sought relief from its restrictions. The master to whom the matter had been referred had reported that the districting of the plaintiff’s land in a residence district would not promote the health, safety, convenience and general welfare of the inhabitants, taking into account the natural development of the city and the character of the district and the resulting benefit to accrue to the whole city. In deciding that the limitation was unconstitutional as to the owner, the court said: The governmental power to interfere by zoning regulations with the general rights of the land owner by restricting the character of his use, is not unlimited, and other questions aside, such restriction cannot be imposed if it does not bear a substantial relation to the public health, safety, morals, or general welfare ” (p. 188). The court, however, added a word of caution: A court should not set aside the determination of public officers in such a matter unless it is clear that their action has no foundation in reason and is a mere arbitrary or irrational exercise of power having no substantial relation to the public health, the public morals, the public safety or the public welfare in its proper sense ’ ” (p. 187).

We think substantially the same restrictions define the power of the court in nullifying the orders of the Board of Standards and Appeals.

Considering the nature of the relator’s property in this case, and the finding of the referee, the ruling of the Board of Standards and Appeals deprives the owner of any beneficial use of his property. When, if ever, the city grows and develops so that business may be profitably conducted in the neighborhood or on Springfield and Foch boulevards, the legal proposition may also change with the situation. Law is applied to facts, and as the facts change in the process of time the law adapts itself accordingly. That which may be unconstitutional to-day may be legal years hence. The zoning of farm land is different from the zoning of a city. Consequently, the erection and maintenance of a gasoline station on this property on the northeast corner of Foch and Springfield boulevards, while a proper use to-day, may become unnecessary with the development of business. We may take judicial notice of the fact that the capital expenditure for such a structure will be comparatively slight. The erection of the station in order to meet a temporary need will not be permitted to thwart for all time a far-sighted system of municipal development.

To what extent and in what circumstances long-time planning for zoning purposes is a valid exercise of legislative power is a question with aspects too many to be answered in one decision. We are not required to say that a merely temporary restraint of beneficial enjoyment is unlawful where the interference is necessary to promote the ultimate good either of the municipality as a whole or of the immediate neighborhood. Such problems will have to be solved when they arise. If we assume that the restraint may be permitted, the interference must be not unreasonable, but on the contrary must be kept within the limits of necessity. Where as here the ultimate good can be attained and a productive use allowed, a use that will be temporary and provisional and readily terminable when new conditions supervene, the landowner is wronged if the allowance is refused.

The order, therefore, of the court below, which authorizes and permits the erection and use of this gasoline station must be modified by a direction that when the circumstances so change by the development of the city that the property is reasonably susceptible of being applied to business uses, then, upon the application of the authorities or any one interested, the gasoline station must be removed.

The order should be modified as directed in this opinion and as thus modified affirmed, without costs.

Caedozo, Ch. J., Kellogg, O’Bbien and Hubbs, JJ., concur; Pound and Lehman, JJ., dissent on the ground, that the statute does not contemplate a judicial review and determination by the court on the merits.

Ordered accordingly.


author:
Hubbs, J.
      Lehman, J.

text:
    The People of the State of New York, Appellant, v. Louis Tavormina, Joseph M. Cohen, J. Vincent Labate, Arthur F. Beyerle, Benedetto A. Palumbo, William Bailey, Gennaro Ascione, George Zinitt, Michael F. Longo, Jacob Adelman, Amleto Safina, Joseph Palmenteri and Emanuel Bobker, Respondents.
    (Argued June 1, 1931;
    decided July 15, 1931.)

      William F. X. Geoghan, District Attorney (Henry J. Walsh of counsel), for appellant.
    The conspiracy charged in the indictment was not. merged into the felonious acts alleged to have been committed in its furtherance. (Lambert v. People, 9 Cow. 578; Elkin v. People, 28 N. Y. 177; Commonwealth v. Kingsbury, 5 Mass. 106; Commonwealth v. Walker, 108 Mass. 309; Commonwealth v. Andrews, 132 Mass. 263; Commonwealth v. Stuart, 207 Mass. 563; Commonwealth v. Dow, 252 Mass. 116; Commonwealth v. Marsino, 252 Mass. 224; People v. McKane, 7 Misc. Rep. 478; People v. Mather, 4 Wend. 229; People v. Wiechers, 94 App. Div. 19; 179 N. Y. 459; People v. Petersen, 60 App. Div. 118; People v. Miles, 123 App. Div. 862; 192 N. Y. 541; People v. Connolly, 227 App. Div. 167; 253 N. Y. 330; People v. Rose, 101 Misc. Rep. 650; People v. Rathbun, 44 Misc. Rep. 88; Johnson v. People, 26 N. J. L. 313; Berkowitz v. United States, 93 Fed. Rep. 452; Clune v. United States, 159 U. S. 590; United States v. Stevenson, 215 U. S. 190; Heike v. United States, 227 U. S. 131; United States v. Rabinowich, 238 U. S. 78.)

      Thomas Cradock Hughes for Louis Tavormina, respondent.
    An indictment will not lie for the misdemeanor of conspiracy when the conspiracy in question has resulted in the commission of a felony which was the object of the conspiracy. (United States v. Gardner, 42 Fed. Rep. 829; Commonwealth v. Kingsbury, 5 Mass. 106; Commonwealth v. Andrews, 132 Mass. 263; People v. McKane, 7 Misc. Rep. 478; Lambert v. People, 7 Cow. 573; People v. Mather, 14 Wend. 229; Elkin v. People, 28 N. Y. 177; People v. Thom, 47 N. Y. Supp. 46; People v. Wiechers, 94 App. Div. 19; People v. Petersen, 60 App. Div. 118; People v. Rose, 101 Misc. Rep. 650; People v. Rathbun, 44 Misc. Rep. 88.)

      Caesar B. F. Barra and Ralph J. Barra for Gennaro Ascione, respondent.
    The conspiracy charged in the indictment was merged into the felonious acts alleged to have been committed in its futherance. (Elkin v. People, 28 N. Y. 177; Lambert v. People, 9 Cow. 578; People v.
      McKane, 7 Misc. Rep. 478; People v. Thorn, 21 Misc. Rep. 130; People v. Mather, 4 Wend. 229; People v. Coney Island Jockey Club, 68 Misc. Rep. 302; Commonwealth v. Andrews, 132 Mass. 263; People v. Rathbun, 44 Misc. Rep. 88; People v. Miles, 123 App. Div. 862; Ritchey L. Corp. v. Robertson Cole D. Corp., 199 App. Div. 362; Pecue v. Collins, 204 App. Div. 142; Graff v. People, 208 Ill. 322; People v. Petersen, 60 App. Div. 118; People v. Palmisano, 132 Misc. Rep. 244.)

      William M. Smith and Martin hippman for Joseph M. Cohn, respondent.
    Felonious larcenies, the ultimate object of the conspiracy, having been executed, the misdemeanor charge of conspiracy merged in the executed felonies. (People v. Wiechers, 94 App. Div. 19; People v. Coney Island Jockey Club, 68 Misc. Rep. 302; People v. Thorn, 21 Misc. Rep. 130; Elkins v. People, 28 N. Y. 178; People v. McKane, 7 Misc. Rep. 478; People v. Petersen, 60 App. Div. 118; People v. Rathbun, 44 Misc. Rep. 88; People v. Willis, 24 Misc. Rep. 537; People v. Rose, 101 Misc. Rep. 650; People v. Palmisano, 132 Misc. Rep. 244; People v. Dunbar Contracting Co., 82 Misc. Rep. 174; Lambert v. People, 9 Cow. 579; State v. Setter, 57 Conn. 461.)

      Michael F. Longo for Bendetto A. Palumbo et al., respondents.
    A conspiracy to commit a felony is merged in the felony when the object of the conspiracy has been attained by the conspirators, so as to bar a prosecution for the conspiracy. (Penal Law, § 580; People v. McKane, 7 Misc. Rep. 478; People v. Coney Island Jockey Club, 68 Misc. Rep. 302; People v. Wicks, 11 _pp. Div. 539; People v. Thorn, 21 Misc. Rep. 131; People v. Petersen, 60 App. Div. 118; Elkin v. People, 28 N. Y. 177; People ex rel. Lawrence v. Brady, 56 N. Y. 182; People v. Suffolk Co., 171 App. Div. 645; Green v. Davies, 100 App. Div. 359; People v. Miles, 123 App. Div. 862; Hoyt v. People,
      140 Ill. 588; State v. Setter, 57 Conn. 461; People v. Mather, 4 Wend. 229; United States v. Garder, 42 Fed. Rep. 829; Berkowitz v. United States, 93 Fed. Rep. 452.)
   Hubbs, J.

The defendants were indicted in the county of Kings for the crime of conspiracy. (Penal Law, § 580.) Demurrers were filed to the indictment and were sustained upon the ground that the indictment charged a misdemeanor, that the overt acts set out therein alleged that the conspiracy charged resulted in the commission of felonies, and that the misdemeanor merged in the felonies The indictment charges that the defendants unlawfully conspired to cheat the City Trust Company, the Atlantic State Bank and the Harlem Bank of Commerce out of money and property. It alleges in various ways the methods employed to accomplish such result. It sets out many overt acts by which the conspiracy was consummated- The overt acts alleged indicate that, in carrying out the conspiracy, the defendants committed other acts which constituted felonies. The learned trial justice, in sustaining the demurrers, followed the dictum delivered in the case of Lambert v. People (9 Cow. 578), to the effect that an indictment which charges an executed conspiracy to commit a crime is fatally defective, as the conspiracy is absorbed or merged in the actual commission of the crime and the indictment should be for the crime actually committed. That was the first expression of judicial opinion upon the subject in this jurisdiction. It was stated that the principle applied if the crime charged to havé been committed as a result of a conspiracy was a misdemeanor. Three years later the case of People v. Mather (4 Wend. 229, 265) stated: a conspiracy is only a misdemeanor, and when its object is only to commit a misdemeanor it cannot be merged. Where two crimes are of equal grade there can be no legal technical merger.”

This court has never definitely passed upon the question and it is at liberty to adopt a rule which is in accord with sound public policy, and which will promote the ends of justice and be conducive to efficient enforcement of the criminal law.

Since the opinion in Lambert v. People (supra) there have been statements made in opinions by eminent judges in this State expressing approval of the principle there stated. (People v. Fish, 4 Park. Crim. Rep. 206, 212; People v. Wiechers, 94 App. Div. 19; affd., 179 N. Y. 459; People v. Coney Island Jockey Club, 68 Misc. Rep. 302, 304; People v. Thorn, 21 Misc. Rep. 130, 131; People v. McKane, 7 Misc. Rep. 478; People v. Wicks, 11 App. Div. 539; People v. Rose, 101 Misc. Rep. 650.) The doctrine has not been free from criticism, however. (People v. Petersen, 60 App. Div. 118; People v. Rathbun, 44 Misc. Rep. 88; People v. Willis, 24 Misc. Rep. 537; People v. Palmisano, 132 Misc. Rep. 244; People v. Dunbar Contracting Co., 82 Misc. Rep. 174.) It is asserted by the respondents that this court in Elkin v. People (28 N. Y. 177); People ex rel. Lawrence v. Brady (56 N. Y. 182), and People v. Wiechers (179 N. Y. 459) has expressly approved the rule as stated in Lambert v. People (supra).

We do not so understand those cases. In the Elkins case the defendant was indicted and convicted of a conspiracy to cause one Laube to be arrested for the crime of larceny. The conspiracy consisted in procuring Westendorff to make a complaint against Laube and falsely swear to the larceny charge. It was urged that the conspiracy charge against the defendant was merged in the felony of subornation of perjury. This court held that the facts did not establish that the defendant had committed the crime of subornation of perjury and, therefore, that there could be no merger of the misdemeanor in a felony. The opinion did not hold or intimate that if the evidence had established that the defendant had committed the crime of subornation of perjury, the misdemeanor of conspiracy would have merged in the felony.

The Lawrence case was an appeal by the relator from a judgment dismissing a writ of habeas corpus. The case only holds that in a complaint charging one with the crime of conspiracy to defraud it is necessary to set out the means by which the fraud was effected. In so deciding the opinion cited the case of Lambert v. People, and stated that it decided that question, and expressly approved the decision upon that point only. The opinion does not refer to the question of merger which was discussed in the Lambert case.

In People v. Wiechers the opinion in the Appellate Division (94 App. Div. 19) indicates that if the decision had so required the court would have held that the crime of conspiracy was merged in the consummated crime of obtaining money by false pretenses. The decision, however, went upon the ground that the indictment charged an unexecuted conspiracy and was, therefore, legal. This court held that the question of the validity of the indictment could not be passed upon in this court as it was not properly raised. One judge dissented upon the ground that this court had jurisdiction to pass upon the question upon the record as presented. The court did not directly or indirectly pass upon the question of merger.

Under the early common law of England it was held that where, in an indictment for a misdemeanor, facts were set out showing the commission of a felony, the indictment should be dismissed as the misdemeanor merged in the felony. This was on the theory that when the lesser offense met the greater, the lesser was absorbed or sank into the greater. The same principle applied where upon the trial of a misdemeanor the evidence established the commission of a felony. The principle followed by the English courts was based upon the distinction which then existed between a misdemeanor and a felony. It was not deemed advisable to intrust the prosecutor with authority to prosecute either charge at his discretion, as the trial of a felony differed greatly from a trial for a misdemeanor. In a trial for a felony the defendant was not entitled to counsel, and the right to challenge jurors and to a copy of the indictment were limited. It was also held that the King was entitled to a conviction of felony with its attendant forfeiture. (Rex v. Westbeer, 1 Leach’s Crown Law, 14; 2 Strange, 1133; Rex v. Parry, 7 Carr. & P. 836; 32 Eng. C. L. 898; Rex v. Doran, 2 Leach’s Crown Law, 608; State v. Setter, 57 Conn. 461; Graff v. People, 208 Ill. 312.)

As early as 1809 the question came before the Supreme Court of Massachusetts, in the case of Commonwealth v. Kingsbury (5 Mass. 106). The counsel for the defendant cited English cases which supported the doctrine of merger. The court followed the reasoning of those cases and held that the misdemeanor of conspiracy charged in the indictment was merged in the consummated crime. That case was cited in the opinion of Senator Spencer, delivered in the case of Lambert v. People (supra), and its reasoning adopted. The basis of both decisions, therefore, was the early English common-law decisions, which were founded upon conditions which have long since ceased to exist. Nevertheless, opinions in different State courts continue to cite those opinions as authority for the proposition that a misdemeanor is merged in a felony. The reason for the rule having disappeared, the rule itself should be abrogated unless it can be justified upon other grounds. The Massachusetts courts have abandoned the rule, and now hold that The fact that the defendant has been guilty of a higher offence than that alleged is no defense.” (Commonwealth v. Walker, 108 Mass. 309.) It is not open to them [defendants] to object that they are not indicted for the greater offence.” (Commonwealth v. Andrews, 132 Mass. 263.) “ The offense of conspiracy was not merged in the specific crimes afterwards committed in pursuance thereof, although the conspiracy was only a misdemeanor and the subsequent crimes were felonies.” (Commonwealth v. Stuart, 207 Mass, 563; Commonwealth v. Marsino, 252 Mass. 224.)

The Federal courts hold that a conspiracy to commit a crime constitues a distinct offense, different from the consummated crime, and is not merged therein. (United States v. Rabinowich, 238 U. S. 78.)

Section 37 of the Federal Criminal Code (U. S. Code Anno. tit. 18, § 88) makes conspiracy a felony, and the doctrine that the lesser crime merges in the greater is not applicable in the Federal courts. Nevertheless, the United States Supreme Court holds that the conspiracy and the offense which the conspiracy contemplates are entirely separate and distinct offenses.

In New Jersey an indictment for a conspiracy to falsely charge a person with an offense and procure his arrest therefor, is good, although the indictment alleges that the conspiracy was executed. (Johnson v. State, 26 N. J. L. 313.)

We are not unmindful of the fact that contra decisions exist in some jurisdictions. The cases from many jurisdictions are collated in Clark & Marshall on Crimes ([3d ed.] § 6); Bishop on Criminal Law ([9th ed.] vol. 1, § 814); Wharton’s Criminal Procedure ([10th ed.] vol. 2, § 1395), and 12 Corpus Juris (p. 580). Those decisions are based on the doctrine announced in the early English decisions, which has been superseded in that jurisdiction. (Reg. v. Button, 11 Q. B. 929; The Jurist, vol. 12, part 1, p. 1017; 9 Halsbury’s Laws of England, p. 262; Rex v. Luberg, 135 Law Times, 414.)

The same act may involve different offenses, felonies and misdemeanors. Robbery includes larceny, and if one breaks and enters a dwelling with intent to steal and does so, there is committed both burglary and larceny. It would be unfortunate if the State could not prosecute for any one of the crimes committed, without regard to the question of whether a lesser crime had merged in a greater. It often happens that it is possible to convict for the lesser crime when it would be impossible to convict for the greater. It is the duty of the prosecuting officers to select the charge which it is advisable to bring against the offender. It must be presumed that they will act honestly and with the view of properly enforcing the criminal law. The offender cannot complain if he is charged with the minor offense instead of the higher one. He has no right to insist that he be prosecuted for the higher crime against which he may have or think he has a perfect defense. (Commonwealth v. Andrews, supra.)

A conspiracy to commit a felony constitutes an independent crime, distinct from the felony contemplated, and complete in itself. It consists of a series of acts which constitute the misdemeanor, and under such circumstances the fact that the indictment alleges overt acts constituting a felony, or that the evidence upon a trial discloses that the conspiracy was executed by the commission of a felony, should not prevent a conviction for the crime of conspiracy. (Reg. v. Button, supra; Elkin v. People, 24 How. Pr. 272; affd., 28 N. Y. 177.)

The crime of conspiracy to defraud is quite different than the crime of assault with intent to commit a felony, in which the very act constituting the assault may also constitute the felony.

When an indictment which charges a conspiracy alleges overt acts which constitute a felony, if the defendant, upon his own motion, could secure a dismissal of the indictment upon the ground of merger, and force an indictment for the felony alleged, the prosecuting officer might not be able at the trial to produce sufficient evidence of the defendant’s guilt of the felony to lead to a conviction. The result might be that the defendant would escape all punishment, although clearly guilty of the crime of conspiracy. Such results were brought about under the merger rule in England. - (Reg. v. Button, supra.)

The merger rule to a certain extent deprives the public prosecutor of the right to determine upon what charge a defendant shall be tried, and vests that right in the defendant.

In an indictment for conspiracy it is necessary to allege overt acts (Penal Law, § 583) but upon the trial it is not necessary to prove all overt acts alleged. (People v. Weichers, supra; People v. Suffolk Contracting Co., 171 App. Div. 645.) The crime of conspiracy does not consist of both the conspiracy and the acts done in carrying it out but of the conspiracy alone. (People v. Willis, 34 App. Div. 203; affd., 158 N. Y. 392; People v. Sheldon, 139 N. Y. 251; Elkin v. People, 24 How. Pr. 272; affd., 28 N. Y. 177.) The overt acts alleged need not necessarily constitute the crime which is the object of the conspiracy. (United States v. Rabinowich, supra.) The overt acts, alleged in an indictment, which constitute a felony may, upon the trial, become immaterial, or the prosecution may be unable to establish them on account of the death or absence of a material witness, insufficient evidence or for various other reasons. Nevertheless, there may be a conviction if some overt act charged is established. In such a case the offender can be punished for the crime of conspiracy.

On the other hand, if the indictment for conspiracy must be dismissed because the overt acts alleged constitute felonies, and a new indictment secured for the felonies, a failure of proof for any reason to establish the felonies charged may result in the offender going free.

If upon a trial under an indictment charging a conspiracy, the trial court should become satisfied that the evidence established that a felony had been committed and thereupon dismissed the indictment for a conspiracy there could be no assurance that the same evidence upon a trial of the felony charge would satisfy a jury, beyond a reasonable doubt, of the defendant’s guilt of the commission of the felony, although it might be perfectly clear that he should be convicted of the conspiracy.

Or, upon the trial for the felony, there might be for some reason a failure of proof. The result might be that although clearly guilty of conspiracy the offender would escape all punishment because of the application of the doctrine of merger.

In an exhaustive note to the case of Sneed v. United States (37 A. L. R. 772) many cases are collated, an examination of which discloses that the doctrine of merger no longer exists in most jurisdictions.

In the case at bar the conspiracy alleged is a crime and not an essential part of the felonies to accomplish which it was entered into. Under such circumstances the crime of conspiracy does not merge in the felonies described in the allegations of overt acts.

Even where the crime charged as a misdemeanor necessarily includes a felony, as in assault with intent to commit a felony, we deem it best to leave the question as to what charge shall be alleged in the indictment to the prosecuting officer who is vested with that discretion by the People, rather than to lay down an arbitrary rule that a misdemeanor in all such cases is merged in the felony. Since the abolition of the distinction existing under the early English common law between the procedure upon the trial of a felony and of a misdemeanor there remains no valid ground upon which to rest the ancient doctrine of merger.

We have examined the other questions raised by the respondents but find no sufficient reason for sustaining the demurrers to the indictment.

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

Lehman, J.

(concurring in result). The rule that the misdemeanor of conspiracy is merged in a felony committed in pursuance of the conspiracy is founded upon technical considerations that are now obsolete. Since the rule now serves no useful purpose and tends to obstruct justice, it should be abandoned. The question still remains whether that abandonment should be decreed by the Legislature or the courts.

Crimes are defined by the Penal Law. The courts may not enlarge the definition formulated by the Legislature. When the definition of conspiracy was formulated by the Legislature the rule that a misdemeanor was merged in a felony, committed in pursuance thereof, had the effect of making the conspiracy merely a step in the consummated felony. It was not a separate and distinct crime. It may be that when the rule of merger is abandoned, the legislative definition of the crime of conspiracy is wide enough to make the conspiracy a separate and distinct crime. That question is not now before us, unless abandonment of the rule of merger must be founded upon a determination that a conspiracy is a separate and distinct crime from the crime which was the purpose of the conspiracy.

An attempt to commit a crime is concededly not separate and distinct from the consummated crime. No one would contend that there might be trial and conviction of an attempt to commit a crime after a conviction for the consummated crime. Nevertheless, the Legislature has provided that there should be no merger of attempt to commit a crime in the consummated crime. (See Penal Law, art. 22.) There may be a conviction of the lesser crime, though the proof may show that a greater crime has been accomplished.

A conspiracy to accomplish certain specified wrongful ends is a crime though these ends may be other than to commit a crime. (Penal Law, § 580.) There, certainly, the crime of the conspiracy is separate and distinct from a consummated crime committed merely as an overt act or step in accomplishing the purpose of the conspiracy. So, too, a conspiracy to commit one crime is by its nature and definition separate and distinct from another and different crime accomphshed in the course of the conspiracy. There, abandonment of the rule of merger and of crime is not complicated by any question of whether the conspiracy and the consummated crime are separate and distinct crimes. ' ■

In such cases it is plain that the rule of merger of the conspiracy in a felony accomplished in its course was in no manner founded upon any view that the conspiracy was not separate and distinct from the felony. The rule may be abandoned in a case where the consummated crime represents the accomplishment of the conspiracy itself, though in such case we should assume that the Legislature did not intend to define the conspiracy as a separate and distinct crime. Even then, reason would point to the abandonment of the outworn rule. Then the conspiracy would be analogous to a lesser degree of the consummated crime, and should be treated accordingly. Allegation or proof of consummated crime might then be given the same effect as the Legislature has indicated in its formulation of the rules governing prosecution for an attempt to commit a crime. Whether the Legislature intended that a conspiracy and its successful accomplishment might, if the obstacle of the rule of merger is removed by the courts, be punished as separate and distinct crimes, is not now before us. I concur with the majority of the court in the result of the opinion, but in the result only if the opinion is to be construed as holding that the crimes are separate and distinct.

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

Judgments reversed, etc.


text:
    Adolph Witschard, Plaintiff, v. A. Brody & Sons, Inc., et al., Appellants, and Edwin S. Buckley et al., Respondents, Impleaded with Others.
    (Submitted June 4, 1931;
    decided July 15, 1931.)

      M. Warren Berk for appellants.
    The alleged agreement made by the defendant owner, guaranteeing the contractor’s account, was not in writing and was, therefore, void under section 31 of the Personal Property Law and unenforceable. (Richardson Press v. Albright, 224 N. Y. 497; Gibbs v. Holden, 137 Misc. Rep. 480; Snyder v.
      Eckstein Brewing Co., 107 App. Div. 328; 188 N. Y. 576; Mallory v. Gillett, 21 N. Y. 412; White v. Rintoul, 108 N. Y. 222; Roscoe Lumber Co. v. Reynolds, 124 App. Div. 539; Mechanics & Traders Bank v. Stettheimer, 116 App. Div. 198; Halstead v. Pelletreau, 101 App. Div. 125; Ackley v. Parmenter, 98 N. Y. 425.)

      Alex C. Webber and Sidney H. Svjezey for Westbury Lumber Company, respondent.
    The promise of defendant-appellant to pay for past and future deliveries was supported by a new consideration moving to the promisor and beneficial to it and the promisor undertook to perform an independent duty of paying. These conditions take the promise out of the statute. (Parisi v. Hubbard, 226 App. Div. 280.)

      George E. Mulry for Cloyd Davis, respondent.
   Kellogg, J.

The defendant Edwin S. Buckley entered into a contract with the defendant A. Brody & Sons, Inc., to perform certain work on the premises of the latter, in making excavations, building walls and laying concrete floorings. Buckley, for necessary lumber supplied to the job, became indebted in a substantial sum to the defendant Westbury Lumber Co., Inc. More lumber was required to complete the job, but the Westbury Company refused to make further deliveries. Mr. Ben Brody, of the Brody firm, said to officers of the Westbury Company that if they “ continued to deliver the balance of materials needed on that job he would guarantee payment of what had already been delivered, and what was to be delivered in the future.” The Westbury Company thereupon resumed deliveries to Buckley. Their bill against Buckley never having been paid, the Westbury Company seeks in this action to recover the amount of the bill from the Brody company upon the promise made by that company, through Ben Brody, to guarantee the Buckley account. We think that the promise, made orally, was not enforceable under the Statute of Frauds, since, it was “ a special promise to answer for the debt, default or miscarriage of another person.” (Pers. Prop. Law; Cons. Laws, ch. 41, § 31, subd. 2.) The fact that the Westbury Company, in continuing its deliveries to Buckley, at the request of the Brody company, supplied a consideration for the latter’s promise is not sufficient to make the statute inoperative. A promise to guarantee the account of another, like every promise, requires the support of a consideration paid or promised, in order that an enforceable contract may have been formed. To say that the payment of a consideration removes an oral contract of guarantee from the application of the statute is to say that the statute can never operate, for there is no such thing as a contract without consideration. (1 Williston on Contracts, § 472.) Prof. Williston says: “ The true test of the validity of a new oral promise should be: Is the new promisor a surety?” (Id. § 475.) If, as between the promisor and the original debtor, the promisor is bound to pay, the debt is his own and not within the statute. Contrariwise if as between them the original debtor still ought to pay, the debt cannot be the promisor’s own and he is undertaking to answer for the debt of another.” (Id.) We find the same view expressed in Mallory v. Gillett (21 N. Y. 412, 415) and Richardson Press v. Albright (224 N. Y. 497, 502). In the former, Comstock, Ch. J., said that “ the inquiry under that statute is, whether there be a debtor and a surety; ” in the latter, Pound, J., said that the promise is original only when the party sought to be charged clearly becomes, within the intention of the parties, a principal debtor primarily liable.” In this instance, the language of the promisor unmistakably indicates its intention to become a surety, for the very promise relied upon is that it would guarantee payment.” We have no doubt that the oral promise was within the statute and unenforceable.

The judgment in favor of respondent Cloyd Davis against appellant, A. Brody & Sons, Inc., should be affirmed; and the judgmentinfavor of the respondent Westbury Lumber Co., Inc., against the appellant A. Brody & Sons, Inc., should be reversed, with costs to the appellant A. Brody & Sons, Inc., against the respondent Westbury Lumber Co., Inc.

Cardozo, Ch. J., Pound, Crane, Lehman, O’Brien and Hubbs, JJ., concur.

Judgment accordingly.


author: Crane, J. O’Brien, J.

text:
    In the Matter of Randolph McNutt Company, Respondent, against William A. Eckert, as Comptroller of the City of Buffalo, Appellant.
    (Argued June 1, 1931;
    decided July 15, 1931.)

      Charles L. Feldman, Corporation Counsel (Andrew P. Ronan of counsel), for appellant.
    The contract made between the Board of Education and the respondent is illegal and void. (McQuillin Mun. Corp. §§ 1309, 1311; Bigler v. Mayor, 5 Abb. N. C. 51; Warnock & Zarndt, Inc., v. Ray, 132 Misc. Rep. 882.) It was the duty of the Comptroller to refuse to affix his countersignature to the warrant for the payment of money under the contract. (Matter of Poucher v. Berry, 249 N. Y. 16; Matter of Fuhrmann v. Graves, 235 N. Y. 77; Matter of Fleischmann v. Graves, 235 N. Y. 84; Matter of Brennan v. Board of Education, 245 N. Y. 8; Schieffelin v. Komfort, 212 N. Y. 520; Ford v. O’Shea, 136 Misc. Rep. 921; 228 App. Div. 772; Smith v. Hedges, 223 N. Y. 176.)

      Daniel J. Kenefick and Theodore G. Kenefick for respondent.
    The only duty of the Comptroller when the warrant was presented to him for his countersignature was to satisfy himself of the genuineness of the signature of the Board of Education on the warrant, that the funds were used for educational purposes and that there were sufficient funds to the credit of the Board appropriated for the purpose, and he was not authorized to determine the legality of the charge. (Matter of Fleischmann v. Graves, 235 N. Y. 84; Matter of Fuhrmann v. Graves, 235 N. Y. 77; Matter of Brennan v. Board of Education, 245 N. Y. 8; Matter of Board of Education v. Dibble, 136 Misc. Rep. 171; Matter of Poucher v. Berry, 249 N. Y. 17.) Even had the Comptroller power to question the legality of the specifications, the omission to state the quantities of each item and the specific time of delivery constitutes no irregularity. (Kingsley v. City

      of Brooklyn, 78 N. Y. 200; East v. Cayuga, 21 N. Y. 887; Wells v. Alexander, 130 N. Y. 642; Standard Co. v. Ostrom, 16 App. Div. 220; Ehrenworth v. Stuhine, 229 N. Y. 210; City of New York v. Paoli, 202 N. Y. 18; Edison v. Thatcher, 229 N. Y. 172.)

      Arthur J. W. Hilly, Corporation Counsel (William E. C. Mayer and J. Joseph Lilly of counsel), for the Comptroller of the city of New York, amicus curias.

    The statute must be complied with, inasmuch as it allows no variation from its express terms, (People ex rel. Ream Pavement Co. v. Board of Improvement, 43 N. Y. 227; Matter of Merriam, 84 N. Y. 596; Matter of Anderson, 109 N. Y. 554; Matter of Rosenbaum, 119 N. Y. 24; Gage v. City of New York, 110 App. Div. 403; Hart v. City of New York, 201 N. Y. 45; Warnock v. Wray, 194 N. Y. Supp. 396; Matter of Langdon v. Teachers’ Retirement Board, 135 Misc. Rep. 271; 226 App. Div. 870; 252 N. Y. 508; People ex rel. Burnet v. Jackson, 85 N. Y. 541; People ex rel. Wells & Newton Co. v. Craig, 232 N. Y. 125; Matter of Brennan v. Board of Education, 245 N. Y. 8.)
   Crane, J.

The Randolph McNutt Company furnished thirty-three teachers' desks to the Board of Education of the city of Buffalo, under contract awarded to it for various items of public school furnishings. The thirty-three desks, according to the contract price, amounted to $759, for which the warrant of the Board was drawn, payable to the Randolph McNutt Company and sent to the Comptroller for his counter signature. The Comptroller has refused to sign, and the peremptory order of mandamus appealed from compels him to do so. The action of the Comptroller is due to the form of the specifications prepared by the Board of Education calling for bids. Although we cannot follow the Comptroller and his adviser, the Corporation Counsel, to their conclusion that the contract for school furnishings given to the Randolph McNutt Company is illegal, we appreciate their hesitancy in recognizing as legal the methods adopted by the Board of Education.

Subdivision 8 of section 875 of the Education Law (Cons. Laws, ch. 16) reads as follows:

“ 8. No contract for the purchase of supplies, furniture, equipment, or for the construction or the alteration or remodelling of any building shall be entered into by a board of education involving an expenditure or liability of more than one thousand dollars unless said board shall have duly advertised for estimates for the same and the contract in each case shall be awarded to the lowest responsible bidder furnishing the security as required by such board.”

Section 880 of the same law (Subds. 2 and 3) reads:

2. Such funds shall be disbursed only by authority of the board of education and upon written orders drawn on the city treasurer or other fiscal officer of the city. Such orders shall be signed by the superintendent of schools and the secretary of the board of education or such other officers as the board may authorize. Such orders shall be numbered consecutively and shall specify the purpose for which they are drawn and the person or corporation to whom they are payable.
“ 3. It shall be unlawful for a city treasurer or other officer having the custody of city funds to permit the use of such funds for any purpose other than that for which they are lawfully authorized and such funds shall not be paid out except on audit of the board of education and the counter-signature of the comptroller. * * * ”

Within the limitations of its appropriation (§ 877, subd. 10) the expenditures of school moneys for educational purposes is given to the Board of Education with very limited control by the city authorities. The Board having audited a charge and issued its warrant, the only limitation upon its power is the duty of the Comptroller to see that the funds are used for a lawful purpose, He cannot countersign for an illegal charge or claim. (Matter of Fleischmann v. Graves, 235 N. Y. 84; Matter of Poucher v. Berry, 249 N. Y. 16.)

If the Board of Education had violated subdivision 8 ofjsection 875, as above quoted, by awarding a contract for school furniture in excess of $1,000 without advertising for estimates, the contract would be illegal. If it had accomplished the same result by indirection, that is, had so fixed or manipulated the specifications as to shut out competitive bidding or permit unfair advantage or favoritism, the contract likewise would be illegal. (Brady v. Mayor, 20 N. Y. 312; Bigler v. Mayor, 5 Abb. N. C. 51.) The principle underlying the law relating to the public letting of contracts through advertisement is stated by Dillon in his work on Municipal Corporations ([5th ed.], vol. 2, § 807) as follows: “ When by charter or statute a municipality can only let its contracts to the lowest bidder after advertisement, an implied condition and restriction is placed upon the proceedings of the municipality that the various steps adopted by it to let a contract ,qha.11 be of such a nature and taken in such form as in good faith to invite competition. * * * The plan and specification are essential to competitive bidding because it is only through their agency that there is a reasonable assurance that all bidders are competing upon the same basis and without favoritism and that no fraud enters into the award.”

Examining the specifications we see that they call for school chairs and desks of various descriptions without specifying the quantity desired. For instance, Bentwood chairs ” of certain wood and finish are mentioned; likewise, kindergarten chairs made of birch with saddle-shaped seats, steel kindergarten chairs with all joints electrically welded, making the whole frame a solid unit; office arm chairs are to be constructed of select quartered white oak, and teachers’ chairs are to be made of select quartered white oak, with saddle-shaped seat, full framed in box, tapered legs and slat back. The adjustable steel desks and chairs, also the flat top desks, cafeteria and library tables are described in detail as to material, shape and style. These various items are numbered consecutively from 3600 to 3654, ending with the item calling for blackboards. The instruction to bidders states: Each proposal must state a certain sum for each item.” Under the heading General Specifications ” we find the following:

“5. In the column headed ' Quantity Wanted ’ is set out an estimate of the quantity which the Board of Education expects to purchase during the year specified; where the space is left blank, it means that the Board is unable to anticipate the quantity of material or equipment under that item which will be required during the year specified and the bidder will be required to furnish all such material or equipment as may be ordered by the Board of Education during the year.”
:¡c * * * $$: * sjc *

“ 11. These specifications cover all Public Schools in the City of Buffalo now open or which shall be opened during the year specified, but any contract entered into under these specifications shall not apply to the equipment of new school buildings completed but not opened during the life of the said contract unless the Board of Education shall so determine.”

The bids submitted after advertisement consisted of a unit price for each one of the numerical items indicated. It is stated in the brief for the respondent that the contract was not awarded to the lowest bidder upon the specification as a whole, but was considered with a view to the lowest bidder upon each item; that is, the lowest bidder on the item of chairs would be awarded the contract for the chairs, while another bidder, the lowest on desks, might be awarded the contract for the desks. In other words, the specifications called for unit prices on various numbered items, and the lowest bidder upon any item was awarded the contract for that item. The specifications and instructions do not in so many words contain this statement, but as it remains unchallenged by the appellant or intervener it may be taken as the fact. No quantities being given, and unit prices being called for, the form of the specification likewise indicates that the bids were to be considered as though each item were a separate contract.

The protest made by the Walker Equipment Company, a competitor, stated that it was unable to bid because of the absence of quantities required and time of delivery expected. It also stated six particulars in which the specifications were so framed that chairs and desks could only be furnished by the Bandolph McNutt Company, having control of the particular manufactured product. These objections apparently have been brushed aside in this court, as our attention has been directed solely to the objection of quantity and time. The point made is that the quantity of desks, chairs, tables, lockers, bookcases and blackboards required should have been stated, as the price varies with the number to be manufactured and the time of delivery required. No doubt this is true; the Board may have exercised bad business judgment in omitting these requirements, but this did not render the specifications fair for one and unfair for another. They were equally good or bad for all; no favoritism in this particular was shown to the successful bidder. The same difficulties confronted it as faced the Walker Equipment Company. Stating the quantity and the time of delivery might have lowered the price, but omitting to so state did not in and of itself render the method or the resulting contract illegal. The Bandolph McNutt Company gave unit prices for the chair and desk items and received the contract; the Walker Equipment Company refused to bid. Calling for unit prices instead of quantity prices in and of itself did not render the specifications unfair, or show any element whereby the Bandolph McNutt Company had an advantage in bidding over the Walker Equipment Company. A contract obligating a party to furnish all the materials required during a certain period, deliveries to be made as needed, is a valid and enforceable contract. (Edison Electric Illuminating Co. v. Thacher, 229 N. Y. 172.) The relator took the chances in making such a contract which other bidders were unwilling to take. If these specifications were so worded or framed that only desks and chairs manufactured or controlled by the Randolph McNutt Company could be furnished, a more serious question would arise. The legality of such a scheme or plan would be very doubtful.

Our attention has been called to the methods employed by the city of Lockport in purchasing its school supplies. An estimate made up from experience of approximately the quantities required for the coming year is stated in the specifications. This is reasonable as well as sensible. Bidders in such a case have something definite to figure upon, some idea of the amount which may be called for from stock or factory. The result is a lower price. The relator in this case sold furniture to Lockport for less than it sold the same kind to Buffalo. The Board of Education of the latter city furnishes no explanation for its failure to make like estimates for the years 1930 and 1931, covered by the specifications in this case. Experience of past years, together with the plans for the future, must give some intelligent idea to those familiar with educational matters, of the requirements for the coming twelve months. What criticism, however, may be justified by the methods adopted in omitting the item of quantities or any approximation thereof, the omission in the absence of fraud, deception or favoritism does not render the specifications and the contract based thereon illegal. Some statutes require that quantities be stated in advertising for bids. (Hart v. City of New York, 201 N. Y. 45; Gage v. City of New York, 110 App. Div. 403; Matter of Anderson, 109 N. Y. 554.) The Education Law contains no such provision.

The order should be affirmed, with costs.

O’Brien, J.

(dissenting). I vote to reverse on the ground that the provisions of subdivision 8 of section 875 of the Education Law were violated in such a material degree as to render the contract illegal. The word estimate ” in this section means, I think, the statement of a reasonably accurate measurement, ■ calculation or computation. In the absence of a publication of an approximate quantity and an approximate time of delivery, estimates cannot be said to have been duly advertised as required by the statute and, consequently, competition in bidding was necessarily limited. The statute prescribes an award not only to the lowest responsible bidder but to such a one as can be ascertained after genuine competition and after advertisement of facts upon which intelligent bids can be based. According to the method of advertising this indefinite contract, favoritism may easily prevail and the purpose of the statute perverted.

Cardozo, Ch. J., Pound, Lehman, Kellogg and Hubbs, JJ., concur with Crane, J.; O’Brien, J., dissents in memorandum.

Order affirmed.


text:
    In the Matter of Russel S. Johnson et al., Appellants. Myrtle W. King, as Administratrix of the Estate of Isaac D. West, Deceased, Respondent.

      (Submitted June 5, 1931;
    decided July 15, 1931.)

      Russel S. Johnson and Smith Johnson for appellants.
    The law was changed on April 4, 1927, allowing interest on unliquidated claims not readily ascertainable by computation. (Sweeney v. State, 225 App. Div. 606; 251 N. Y. 417.)

      T. W. Southwick for respondent.
    The amendment to section 480 of the Civil Practice Act did not change the common law that a claim for legal services resting on a quantum meruit draws interest from the time when a demand is made. (Prager v. New Jersey Fidelity Co., 245 N. Y. 1; Blackwell v. Finlay, 233 N. Y. 361; De Carricarti v. Blanco, 121 N. Y. 230; White v. Miller, 78 N. Y. 393; Mygatt v. Wilcox, 45 N. Y. 306; Sweeney v. City of New York, 173 N. Y. 414; O’Brien v. Young, 95 N. Y. 428.)
   Crane, J.

The record in this case contains a notice of motion to correct a decree of the Surrogate allowing a claim for professional services in the sum of $670, by adding thereto interest from the 4th day of April, 1927, to the date of the decree. The remainder of the record consists of a copy of the claim, opinions and decree of the Surrogate, and an affidavit for the petitioner stating that as section 480 of the Civil Practice Act, adopted April 4, 1927, allows interest on unliquidated claims, the Surrogate should add interest from the time said act took effect. Section 480 reads: In every action now pending or hereafter brought wherein any sum of money shall b.e awarded by verdict, report or decision upon a cause of action for the enforcement of or based upon breach of performance of a contract, express or implied, other than a contract to marry, interest shall be recovered_upon the principal sum whether theretofore liquidated or unliquidated and shall be added to and be a part of the total sum awarded.”

The claim presented to the administratrix of the estate of Isaac D. West, deceased, was for legal services rendered up to January 1, 1927. It was presented October 8, 1930, and after contest, was allowed by the decree of February 20, 1931, in the sum of $670, without interest, as claimed by the petitioner. No demand was made for the amount of the bill prior to the presentation of the claim to the administratrix on the date October 8,1930. Although the lawyer’s services terminated January 1, 1927, and there was an implied or express contract to pay the value thereof, the amount could not be ascertained until either the lawyer presented his bill and made a demand or else the claim was determined upon some proceeding. There was no breach of contract or no failure upon the part of the deceased, or the estate, to pay the bill or to pay for the services rendered, until a demand had been made for a stated amount. What could the deceased or the estate pay until the lawyer declared or stated his charges? Thus, the general rule that a claim for legal services resting on a quantum meruit draws interest to be computed from the date of the demand. (Blackwell v. Finlay, 233 N. Y. 361; Prager v. New Jersey Fidelity & P. G. Ins. Co., 245 N. Y. 1.)

Section 480, therefore, has no application to this claim, as it was not based upon the breach of the performance of a contract'prior to the date of the demand. There was no breach of any contract on January 1, 1927, when the services terminated, or on April 4, 1927, when the amendment to this section 480 took effect. The claim became due October 8, 1930, when, for the first time, a demand was made.

Where a cause of action arises for a breach of contract or to enforce a contract, and the damages are unliquidated, then the old rule that no interest could be added to such damages has been modified by the amendment to this section 480, taking effect April 4, 1927. Whether the Legislature could constitutionally add interest for a time prior to the taking effect of the act is a question which does not arise in this case and need not be considered. (See O’Brien v. Young, 95 N. Y. 428, 430.)

The order should be affirmed, with costs, and the first and second questions certified by the Appellate Division answered in the negative.

Cardozo, Ch. J.. Pound, Lehman, Kellogg, O’Brien and Hubbs, JJ., concur.

Order affirmed, etc.