author: Desmond, J.

text:
    Roland R. Jones, Appellant, v. James P. Gianferante, Tenant, Respondent. Robert J. Benedict et al., Interveners, Respondents.
    Argued January 6, 1953;
    decided March 5, 1953.

      Joe Schapiro for appellant.
    I. Tenant-respondent is not entitled to exercise any option to renew the lease. II. Option to renew was not exercised according to its terms. (Columbus Spa v. Star Co., 216 App. Div. 218; Elias Realty Co. v. Luttrell, 120 Misc. 243; Burns v. City of New York, 213 N. Y. 516; Fidelity & Columbia Trust Co. v. Levin, 128 Misc. 838, 221 App. Div. 786, 248 N. Y. 551; Ocumpaugh v. Engel, 121 App. Div. 9; Doepfner v. Bowers, 55 Misc. 561; Leibowitz v. Bickford’s Lunch System, 241 N. Y. 489.) III. Transfer of the lease is prohibited by its terms unless with consent in writing. (New Amsterdam Cas. Co. v. National Union Fire Ins. Co., 266 N. Y. 254; McKinley Realty & Constr. Co. v. Rosenblum, 149 Misc. 730; Warshawsky v. Ward, 139 Misc. 793; WMCA, Inc., v. Blockfront Realty Corp., 194 Misc. 932; Bradley v. General Store Equipment Corp., 183 Misc. 199.)

      Edward H. O’Connor, Jr., for tenant-respondent.
    I. The lease is not ambiguous and provides for a ten-year term, an option to renew for a second ten-year term to be exercised at the expiration of the first term, and annual renewals thereafter through notices given on or before each September 1st. (Columbus Spa v. Star Co., 216 App. Div. 218; Moskowitz v. Diringen, 48 Misc. 543; Burgener v. O’Halloran, 111 Misc. 203; Kozodoy v. Hindy, 187 Misc. 34; Hoff v. Royal Metal Furniture Co., 117 App. Div. 884, 189 N. Y. 555; Burns v. City of New York, 213 N. Y. 516.) II. The dismissal of the proceeding by the Appellate Division upon equitable principles was amply warranted as a matter both of law and of fact. (Janks v. Central City Roofing Co., 271 App. Div. 545; Hausauer v. Dahlman, 72 Hun 607; Fanden Realty Corp. v. Klauber, 147 Misc. 564; De Vita v. Pianisani, 127 Misc. 611; Burgener v. O’Halloran, 111 Misc. 203; Makas v. Makas, 53 N. Y. S. 2d 375; Fidelity & Columbia Trust Co. v. Levin, 128 Misc. 838, 221 App. Div. 786, 248 N. Y. 551; New York Life Ins. & Trust Co. v. Rector of St. George’s Church, 64 How. Prac. 511; Matter of Topp, 81 N. Y. S. 2d 344; Fountain v. Stein, 97 Conn. 619.) III. The transfers from the original lessee to interveners, and from the latter to tenant, were assignments which carried with them the option privilege. Accordingly, this privilege belonged to tenant at the time he exercised the option. (New Amsterdam Cas. Co. v. National

      Union Fire Ins. Co., 266 N. Y. 254; Bradley v. General Store Equipment Corp., 183 Misc. 199, 268 App. Div. 852; WMCA, Inc., v. Blockfront Realty Corp., 194 Misc. 932, 272 App. Div. 800; McKinley Realty & Constr. Co. v. Rosenblum, 149 Misc. 730.)

      N. Earle Evans, Jr., for interveners-respondents.
    I. The notice of renewal given by tenant was timely in that it complied with the express terms of the renewal clause. IT. Tenant gave sufficient notice according to his understanding of the renewal language. Accordingly, as the Appellate Division held, there should not be a forfeiture of the lease for failure to comply with terms not apparent to him. (Foster v. Mulcahey, 196 App. Div. 814; New Fork Life Ins. & Trust Co. v. Rector of St. George’s Church, 64 How. Prac. 511; Matter of Topp, 81 N. Y. S. 2d 344.) III. Tenant had the right to exercise the option to renew because the lease, together with the option, had been fully conveyed through absolute assignments from the original lessee to interveners and from the latter to him. IV. If there were any doubt as to interpretation, tenant should have been allowed to show the intention of the parties by all of the objective indications — circumstances and acts — as well as conversations. (Middleworth v. Ordway, 191 N. Y. 404; Garvin Mach. Co. v. Hammond Typewriter Co., 12 App. Div. 294,159 N .Y. 539.)
   Desmond, J.

In this summary proceeding (Civ. Prac. Act, art. 83), brought in October, 1951, by the landlord (appellant here) to recover possession of premises used by the tenant (respondent here) in his bowling alley business, the question is: Did the Appellate Division err in excusing, on the ground of an honest mistake by the tenant, and absence of prejudice to the landlord, the tenant’s delay in serving a notice of intention to exercise an option to renew the lease? Respondent had, in September, 1950, become the tenant by assignment of a lease made, by this landlord’s predecessor in title, on October 20, 1941, which contained this language: “ The term of this lease shall be for ten years, commencing October 1, 1941, and ending October 1, 1951. Second party is to have the option at the expiration of this lease to renew the said lease in the following manner: The option is to extend for an additional period of ten years and is to be exercised annually thereafter if the party of the second part so desires to continue the lease, by giving a written notice to the party of the first part on or before the first day of September of each succeeding year.”

On September 6, 1951, at a time when the tenant had done nothing toward exercising the option to renew, the landlord wrote the tenant a letter, notifying the latter that the landlord wanted possession on October 1,1951, that is, on the date of the expiration of the original term. One week later, on September 13, 1951, the tenant served on the landlord a paper, in which the former gave notice that he intended to exercise, for a further period of ten years, his renewal option. The landlord, claiming that the time to exercise the privilege had expired on September 1,1951, refused to agree to the renewal, and this proceeding was begun, in the County Court, on October 6, 1951.

As both courts below held, the above-quoted clause is ambiguous. The County Court, however, thought that, since, as it held, the notice had not been given on the law day, nothing could be done by way of relief for the tenant. The Appellate Division, however, reversed and dismissed the proceeding. It pointed out that there was confusion in the lease language, as to whether or not a written notice was necessary to effecuate a first renewal after the end of the original term. As facts, it found that the tenant had intended to accomplish a renewal, that his failure to notify the landlord was the result of an honest mistake, that the landlord suffered no damage by the brief delay, and that to evict the tenant would cause the tenant much hardship, because of his investment in the business, etc. Citing New York Life Ins. & Trust Co. v. Rector of St. George’s Church (64 How. Prac. 511), and Matter of Topp (81 N. Y. S. 2d 344), the Appellate Division gave the tenant the benefit of the rule or practice in equity which relieves against such forfeitures of valuable lease terms when default in notice has not prejudiced the landlord, and has resulted from an honest mistake, or similar excusable fault. We do not doubt that such a rule exists and that it was appropriately made use of here (see Reed v. St. John, 2 Daly 213, 217; 1 McAdam on Landlord and Tenant [5th ed.], p. 721; 2 Pomeroy, Equity jurfepfúderic'e [5th ed.], § 453b; Fountain Co. v. Stein, 97 Conn. 619). The County Court’s opinion here cited Fidelity & Columbia Trust Co. v. Levin (128 Misc. 838, affd. 221 App. Div. 786, affd. 248 N. Y. 551), but in that lease there was no ambiguity. The tenant there put forward various reasons why, as he thought, the tardy notice was, nonetheless, effective. Apparently, there was no ground for giving equitable relief to the tenant, and, in any event, none was given, but the Special Term opinion in that very case recognized the existence of the rule that, “ 1 in case of mistake, accident, fraud or surprise, relief may be obtained in equity ’ ” (see 128 Mise., p. 844). We note, in passing, that section 1425 of the Civil Practice Act specifically authorizes the use of equitable defenses in such landlord-tenant proceedings.

The Appellate Division, in dismissing the proceeding, gave expression to its own construction of the ambiguous renewal clause, above quoted. We neither approve nor disapprove that construction. This summary proceeding under article 83 of the Civil Practice Act is of purely possessory character, and the only issue before the court was as to the right of possession, as of October 5, 1951 (see Quinn v. Quinn, 46 App. Div. 241, 243; Hoffman v. Hoffman, 212 App. Div. 531, 534; Matter of Gladstone v. Drew, 257 App. Div. 696, 697; Nemetty v. Naylor, 100 N. Y. 562, 566). A proceeding like this one cannot validly produce a declaratory judgment as to the rights of the parties as of times subsequent to its commencement, so we are deliberately leaving undecided any such dispute which may since have arisen, or may arise hereafter, and the settlement of which dispute might require a complete and definitive construction of the lease provision as to renewal.

The order should be affirmed, with costs.

Loughban, Ch J., Lewis, Conway, Dye and Fuld, JJ., concur with Desmond, J.; Fboessel, J., concurs in the result.

Order affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Michael Blessington, as Administrator of the Estate of Michael Blessington, Jr., Deceased, Respondent, v. McCrory Stores Corporation, Appellant, et al., Defendants, and M. A. Henry Co., Inc., Defendant and Third-Party Plaintiff. E. I. Du Pont de Nemours & Company, Third-Party Defendant. Michael Blessington, as Administrator of the Estate of Michael Blessington, Jr., Deceased, Appellant, v. McCrory Stores Corporation et al., Respondents, and M. A. Henry Co., Inc., Defendant and Third-Party Plaintiff. E. I. Du Pont de Nemours & Company, Third-Party Defendant.
    Argued January 5, 1953;
    decided March 5, 1953.

      Richards W. Hannah and Alan W. Craig for appellant in first above-entitled action.
    I. A cause of action for breach of warranty for personal injuries is barred by the three-year Statute of Limitations in subdivision 6 of section 49 of the Civil Practice Act. (Schlick v. New York Dugan Bros., 175 Misc. 182; Buyers v. Buffalo Paint & Specialties, 199 Misc. 764.) II. The gravamen of a cause of action determines the Statute of Limitations to be applied. (Brick v. Cohn-Hall-Marx Co., 276 N. Y. 259; Schmidt v. Merchants Desp. Transp. Co., 270 N. Y. 287; McFarlane v. City of Niagara Falls, 247 N. Y. 340; Corash v. Texas Co., 264 App. Div. 292; Loehr v. East Side Omnibus Corp., 259 App. Div. 200, 287 N. Y. 670; Jones v. Boggs & Buhl, 355 Pa. 242; Greco v. Kresge Co., 277 N. Y. 26; Bruce v. Fiss, Doerr & Carroll Horse Co., 47 App. Div. 273; Razey v. Colt Co., 106 App. Div. 103; Ellen v. Heacock, 247 App. Div. 476.) III. This cause of action for personal injuries arising from a breach of warranty sounds in tort. (Greco v. Kresge Co., 277 N. Y. 26; Gimenez v. Great Atlantic & Pacific Tea Co., 264 N. Y. 390; Buyers v. Buffalo Paint & Specialties, 199 Misc. 764; Smoler v. Hanscom Baking Corp., 156 Misc. 814; Matter of Lyons v. Burtis, 157 Misc. 325.)

      Thomas F. Frawley and William M. Blake, Jr., for appellant in second above-entitled action.
    I. Many grounds of actionable liability for personal injuries other than negligence have been alleged in the third and fourth causes of action. (Dyer v. Broadway Central Bank, 252 N. Y. 430; Bresnihan v. United States Trust Co. of N. Y., 257 App. Div. 195; Schmidt v. Merchants Desp. Transp. Co., 270 N. Y. 287; Nasaba Corp. v. Harfred Realty Corp., 287 N. Y. 290; Brundige v. Bradley, 294 N. Y. 345; Abrams v. Allen, 297 N. Y. 52; Denihan Enterprises v. O’Dwyer, 302 N. Y. 451; Pomerance v. Pomerance, 301 N. Y. 254; De Wald
      v. Seidenberg, 297 N. Y. 335.) II. Recovery can be sustained on the theory of nuisance. III. The acts of defendants in manufacturing and selling the suit violated the law. IV. The continued manufacture and sale of the suits, with intimate knowledge of the character of the pile used and that harm was bound to occur therefrom if one of the suits caught fire, after notice of many prior accidents which had caused injuries and in some instances deaths, constituted a failure to desist and willingness to accept all consequences and an “ unreasonable interference ” with the lives and bodies of the boys who wore the suits. (McFarlane v. City of Niagara Falls, 247 N. Y. 340; Dixon v. New York Trap Rock Corp., 293 N. Y. 509.) V. Recovery can be sustained on the theories of willful and malicious misconduct. (Moorefield v. Unemployment Compensation Bd. of Review, 82 A. 2d 501 [Pa.]; McFall v. Compagnie Maritime Belge, 304 N. Y. 314.) VI. Recovery may be had on the theories of fraud, absolute liability and statutory liability. VII. Sections 48 and 49 of the Civil Practice Act, section 130 of the Decedent Estate Law and various decisions of the courts of this State recognize the distinction between negligence and the other forms of tort liability asserted in this action. (Schmidt v. Merchants Desp. Transp. Co., 270 N. Y. 287; Ultramares Corp. v. Touche, Niven & Co., 255 N. Y. 170; Greco v. Kresge Co., 277 N. Y. 26; McConnell v. Caribbean Petroleum Corp., 278 N. Y. 189.) VIII. Recovery may be had for punitive damages. (Day v. Woodworth, 13 How. [U. S.], 363; Scott v. Donald, 165 U. S. 58.)

      Thomas F. Frawley and William M. Blake, Jr., for respondent in first above-entitled action.
    I. Recovery may be had against defendant-appellant under the allegation of the first cause of action because of its breach of section 96 of the Personal Property Law. (Gimenez v. Great Atlantic & Pacific Tea Co., 264 N. Y. 390; McSpedon v. Kunz, 271 N. Y. 131; McConnell v. Caribbean Petroleum Corp., 278 N. Y. 189; Chotapeg, Inc., v. Bullowa, 291 N. Y. 70; Martin v. Herzog, 228 N. Y. 164; Koenig v. Patrick Constr. Co., 298 N. Y. 313; Pollard v. Trivia Bldg. Co., 291 N. Y. 19; Schmidt v. Merchants Desp. Transp. Co., 270 N. Y. 287; Amberg v. Kinley, 214 N. Y. 531; Greco v. Kresge Co., 277 N. Y. 26; Rinaldi v. Mohican Co., 225 N. Y. 70; Chysky v.
      Drake Bros. Co., 235 N. Y. 468; McGrath v. Helena Rubinstein, Inc., 29 F. Supp. 822; Ryan v. Progressive Grocery Stores, 255 N. Y. 388; Schram v. Cotton, 281 N. Y. 499; Coombes v. Getz, 285 U. S. 434; Liberty Mut. Ins. Co. v. Sheila-Lynn, Inc., 185 Misc. 689, 270 App. Div. 835; McConnell v. Caribbean Petroleum Corp., 278 N. Y. 189.) II. There is no real issue of privity in this case. (Pomerance v. Pomerance, 301 N. Y. 254; Latham v. Father Divine, 299 N. Y. 22; Hopkins v. Vita Food Products, 297 N. Y. 546; Joseph v. Schatzkin, 259 N. Y. 241.) III. Recovery can be had because the suit was bought for the sole use of deceased. (Mannsz v. Macwhyte Co., 155 F. 2d 445; Boyce v. 228th & Carpenter Ave. Holding Co., 295 N. Y. 575; Ultramares Corp. v. Touche, Niven & Co., 255 N. Y. 170; Glanzer v. Shepard, 233 N. Y. 236; Seaver v. Ransom, 224 N. Y. 233; De Cicco v. Schweizer, 221 N. Y. 431; Strong v. American Fence Constr. Co., 245 N. Y. 48; Filardo v. Foley Bros., 297 N. Y. 217; Wilson v. Costich Co., 231 App. Div. 346, 256 N. Y. 629; Lawrence v. Fox, 20 N. Y. 268.)

      Richards W. Hannah and Alan W. Craig for McCrory Stores Corporation, respondent in second above-entitled action.
    I. The third cause of action of the amended complaint was properly dismissed since it sounds in negligence and is barred by the Statute of Limitations (Civ. Prac. Act, § 49). (Matter of McKee v. White, 218 App. Div. 300, 244 N. Y. 610; Schmidt v. Merchants Desp. Transp. Co., 270 N. Y. 287; McLean v. Triboro Coach Corp., 302 N. Y. 49; Kavanagh v. Barber, 131 N. Y. 211; Herman v. City of Buffalo, 214 N. Y. 316; Ford v. Grand Union Co., 240 App. Div. 294; McFarlane v. City of Niagara Falls, 247 N. Y. 340.) II. The motion to amend the amended complaint by adding a fourth cause of action was properly denied. (Stanford v. Cayuga Linen & Cotton Mills, 255 App. Div. 928; Hanna v. Mitchell, 202 App. Div. 504, 235 N. Y. 534; Horowitz v. Goodman, 112 App. Div. 13; Casassa v. Savarese, 149 App. Div. 243; Boronkay v. Robinson & Carpenter, 247 N. Y. 365; Ross v. Fida, 265 App. Div. 586.)

      William F. McNulty and Michael A. Hayes for M. A. Henry Co., Inc., respondent in second above-entitled action.
    I. Special Term properly held that plaintiff’s third cause of action was essentially one to recover for a personal injury resulting from negligence and, therefore, came squarely within the scope of subdivision 6 of section 49 of the Civil Practice Act. (MacPherson v. Buick Motor Co., 217 N. Y. 382; Smith v. Peerless Glass Co., 259 N. Y. 292; Genesee Co. Patrons Fire Relief Assn. v. Sonneborn Sons, 263 N. Y. 463; Crist v. Art Metal Works, 230 App. Div. 114, 255 N. Y. 624; Noone v. Fred Perlberg, Inc., 268 App. Div. 149, 294 N. Y. 680; Delaney v. Philhern Realty Holding Corp., 280 N. Y. 461; Beickert v. G. M. Laboratories, 242 N. Y. 168.) II. Assuming that a recovery could be had under plaintiff’s third cause of action, any nuisance established would be a nuisance resulting from negligence, which is also governed by the three-year Statute of Limitations. (Delaney v. Philhern Realty Holding Corp., 280 N. Y. 461; McFarlane v. City of Niagara Falls, 247 N. Y. 340; Hayes v. Brooklyn Heights R. R. Co., 200 N. Y. 183; Campbell v. Delaware Realty Co., 261 App. Div. 1037, 286 N. Y. 733; Pine v. Waterbury Clock Co., 245 App. Div. 605; Belmont v. City of New York, 191 App. Div. 717.) III. Denial of plaintiff’s cross motion for leave to serve a second amended complaint, adding a fourth cause of action for punitive damages, was proper. (Raff v. Koster, Bial & Co., 38 App. Div. 336; Kwiatkowski v. Lowry, Inc., 276 N. Y. 126.)

      Patrick E. Gibbons for Woonsocket Falls Mill and others, respondents in second above-entitled action.
    I. The order dismissing the second and third causes of action as against defendants Woonsocket Falls Mill and E. F. Timme & Son was properly granted. (Schmidt v. Merchants Desp. Transp. Co., 270 N. Y. 287; Delaney v. Philhern Realty Holding Corp., 280 N. Y. 461; Herman v. City of Buffalo, 214 N. Y. 316; McCormack v. Henry Co., 275 App. Div. 758; New York Trap Rock Corp. v. Town of Clarkstown, 299 N. Y. 77; McNulty v. Ludwig & Co., 153 App. Div. 206; McFarlane v. City of Niagara Falls, 247 N. Y. 340; Cannon v. Cannon, 287 N. Y. 425; Gostkowski v. Roman Catholic Church, 262 N. Y. 320; Dempsey v. Virginia Dare Stores, 186 S. W. 2d 217.) II. Plaintiff’s motion to add a fourth cause of action was properly denied. (Dippold v. Atlantic Mills of R. I., 146 Misc. 79, 241 App. Div. 780; Hanna v. Mitchell, 202 App. Div. 504, 235 N. Y. 534.)
   Desmond, J.

Plaintiff sues as the administrator of his infant son, who, the complaint alleges, died on March 28, 1945, from burns he suffered on December 27,1944, when a “ cowboy suit ” he was wearing came into contact with a flame, and ignited. This, action was not commenced until March, 1948, more than three years after the accident, and the questions on this appeal are: Had any applicable Statute of Limitations, as to any cause of action or any defendant, run its course before such commencement? Damages are demanded, not for causing the boy’s death, but for his pain and suffering before death, so we are in no way concerned with section 130 of the Decedent Estate Law, and its self-contained two-year time limitation.

The amended complaint says that defendant Plenry was the manufacturer of the garment, that defendant Woonsocket furnished allegedly inflammable material of which part of the suit was made, that defendants comprising the Timme partnership were the selling agents for Woonsocket, and that defendant McCrory sold the suit to the infant’s mother for the infant’s use. Four causes of action are stated (the fourth by way of a motion made, and denied, below, to add a count to the amended complaint). Plaintiff now concedes that his second alleged cause of action is purely one in negligence, and that it was properly dismissed under the three-year limitation found in subdivision 6 of section 49 of the Civil Practice Act. As to the third cause of action in this amended complaint, we hold, without setting forth herein our analysis of its lengthy averments, that it, too, contains no more than an accusation that the defendants negligently caused the personal injuries, and so it, too, was properly dismissed as to all defendants, because, not sued on within three years from its accrual. Also, we agree with the decisions below that the fourth count, which plaintiff attempted to put into a further amended complaint sounds, essentially and solely, in negligence, and was required to be dismissed, by reason of the same three-year limitation.

That leaves for consideration the first cause, of action, for breach of an implied warranty of fitness for use (Personal Property Law, § 96, subd. 1), stated against the immediate vendor McCrory, alone. McCrory’s motion to dismiss was on the theory that such a suit is in reality one in negligence, and so should be governed by the three-year limitation. We think the motion was properly denied, and that the holding below was correct — that is, that, although such a breach of duty may rest upon, or be associated with, a tortious act, it is independent of negligence, and so such a cause of action gets the benefit of the six-year limit of subdivision 1 of section 48 of the Civil Practice Act, as being on an implied contract obligation or liability. There are no directly applicable decisions in this court, but there are at least two New York rulings (Schlick v. New York Dugan Bros., 175 Misc. 182, and Buyers v. Buffalo Paint & Specialties, 199 Misc. 764) that, since the claims in such a suit on a breach of an implied warranty are, as those courts thought, essentially those of negligence, the three-year statute applies. Courts of other States, in substantially similar situations, have taken the opposite view (see Challis v. Hartloff, 136 Kan. 823, 825, 826; Colonna v. Rosedale Dairy Co., 166 Va. 314, 324). Our own decisions tell us that, while an action for breach of a statutorily implied warranty of fitness may involve, incidentally, some showing of negligence, the contract breached is not merely one to use due care, but is a separate (implied) contract of guaranty that the goods are fit for the purpose for which they are sold and bought (Rinaldi v. Mohican Co., 225 N. Y. 70; Gimenez v. Great Atlantic & Pacific Tea Co., 264 N. Y. 390). Proof of negligence is unnecessary for recovery in such a suit (Rinaldi v. Mohican Co., supra, p. 75; see Deffebach v. Lansburgh & Bro., 150 F. 2d 591, certiorari denied 326 U. S. 772).

Precedents such as Webber v. Herkimer & Mohawk St. R. R. Co. (109 N. Y. 311), Hermes v. Westchester Racing Assn. (213 App. Div. 147), and Loehr v. East Side Omnibus Corp. (259 App. Div. 200, affd. 287 N. Y. 670) are not useful here. Those cases tell us that, where the wrong complained of is in truth negligence, and nothing else, the negligence suit time limitation cannot be escaped, and the contract limitation used, by means of allegation and proof of a contractual relationship between the parties, as where the plaintiff was a passenger on a common carrier when hurt, and sues on the contract of carriage. The particular reasoning of those cases applies only to instances Avhere the alleged breach of contract is failure to use due care — in other words, negligence. Since the common-law duty and the implied contractual obligation, in such situations, are one and the same, the suit, however labeled, is one in negligence, at least for time limitation purposes. Not so as to the first cause of action here, brought as it is on an alleged breach, independent of any negligence, of an implied warranty as to the condition of vended merchandise (see Goetten v. Owl Drug Co., 6 Cal. 2d 683; Schuler v. Union News, 295 Mass. 350, 353; Wadleigh v. Howson, 88 N. H. 365).

The orders appealed from should be affirmed, without costs, and all questions certified answered in the affirmative.

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

Orders affirmed, etc.


author: Fuld, J.

text:
    In the Matter of the Accounting of L. Lawrence Green, as Executor of Julia Braier, Deceased, Respondent. Millie K. Kalmane, as Legatee, Appellant.
    Argued January 7, 1953;
    decided March 5, 1953.

      Martin Popper, Paul L. Ross and David Sloane for appellant.
    I. Section 269 of the Surrogate’s Court Act as herein applied is unconstitutional. It encroaches upon legislative powers constitutionally vested in the Federal Government. (Hines v. Davidowitz, 30 F. Supp. 470, 312 U. S. 52; Anderson v. N. V. Transandine Handelmaatschappij, 28 N. Y. S. 2d 547; Haley v. Sheridan, 190 N. Y. 331; Heller v. Teale, 216 F. 387; The Bello Corrunes, 6 Wheat. [U. S.] 152; Matter of Skewrys, 181 Misc.

      479; Matter of Zalewski, 292 N. Y. 332.) II. Section 269 of the Surrogate’s Court Act as applied to this estate is in violation of the Constitution of the United States and treaties under the authority of the United States. (Lanza v. United States, 22 F. Supp. 716; Matter of Comincio, 135 Misc. 733, 229 App. Div. 862, Santovincenzo v. Egan, 284 U. S. 30; Hauenstein v. Lynham, 100 U. S. 483; Asakura v. City of Seattle, 265 U. S. 332; Makah Indian Tribe v. McCauly, 39 F. Supp. 75; Nielsen v. Johnson, 279 U. S. 47; Techt v. Hughes, 229 N. Y. 222; Clark v. Allen, 331 U. S. 503.) III. The application of section 269 is unconstitutional in that it is applied in a field in which the Federal Government has jurisdiction and in which the Federal Government has already enacted legislation. Furthermore, if Federal legislation is applied, section 269 is inapplicable. (Monongahela Bridge Co. v. United States, 216 U. S. 177; Second Employers’ Liability Cases, 223 U. S. 1; United States v. National Gypsum Co., 49 F. Supp. 206.) IV. The direction to deposit the moneys in the city treasury without a hearing is inconsistent with all prior decisions under section 269 and is in violation of elementary due process under. section 1 of the Fourteenth Amendment of the United States Constitution. (Matter of Blasi, 172 Misc. 587; Matter of Weidberg, 172 Misc. 524; Matter of Steiner, 172 Misc. 950; Matter of Ramberg, 174 Misc. 306; Matter of Plemich, 176 Misc. 560; Bandini Co. v. Superior Court, 284 U. S. 8; United States v. Carolene Products Co., 304 U. S. 144.) V. The Treasury Department ruling is not a finding of United States official Government policy. Further, it has no relationship to the property of foreign nationals derived from estates in this country. It is not binding on any court. The declaration of the Secretary of the Treasury cannot constitutionally be a declaration of Government policy. It has no relation to distributive shares in estates. (Payne v. Griffin, 51 F. Supp. 588; Field v. Clark, 143 U. S. 649; Mahler v. Eby, 264 U. S. 32; Shouse v. Moore, 11 F. Supp. 784; United States v. Tishman, 99 F. 2d 951, 306 U. S. 636; Japan Import Co. v. United States, 86 F. 2d 124; Opp Cotton Mills v. Administrator, 312 U. S. 126; United States v. Foster, 131 F. 2d 3, 318 U. S, 767; Youngblood v. United States, 141 F. 2d 912.)

      Charles Ettinger and L. Lawrence Green, in person, for L. Lawrence Green, respondent.
    I. The appeal should be dismissed as no constitutional question is directly and primarily presented herein and leave to appeal was not obtained either from the Court of Appeals or the Appellate Division. (People ex rel. Ryan v. Lynch, 262 N. Y. 1; People ex rel. Curtis v. Kidney, 225 N. Y. 299; Matter of Rueff,. 273 N. Y. 530; Matter of Haydorn v. Carroll, 225 N. Y. 84; Matter of Chirillo, 283 N. Y. 417, 284 N. Y. 583.) II. The provisions of the decree for deposit of the blocked legacy with the city treasurer complies with prevailing Federal regulations and section 269 of the Surrogate’s Court Act. (Matter of Weidberg, 172 Misc. 524; Matter of Ramberg, 174 Misc. 306; Matter of Yee Yoke Ban, 200 Misc. 499; Matter of Best, 200 Misc. 332; Matter of Getream, 200 Misc. 543; Matter of Bold, 173 Misc. 545; Matter of Wong Hoen, 199 Misc. 1119.) III. The provisions of the former treaty of friendship between the United States and Hungary do not prevent the operation of section 269 of the Surrogate’s Court Act. (Matter of Plemich, 176 Misc. 560; Matter of D’Adamo, 212 N. Y. 214; Matter of Hansen, 155 Misc. 712.) IV. The application of section 269 of the Surrogate’s Court Act is not violative of any constitutional provision. (United States v. Perkins, 163 U. S. 625; Irving Trust Co. v. Day, 314 U. S. 556.)
   Fuld, J.

Julia Braier, a resident of New York County, died iñ Czechoslovakia in the fall of 1945, bequeathing her entire estate — which consisted of a savings account in a New York city bank — to her sister, a national and resident of Hungary. In settling the final account of her executor, the surrogate directed that the bequest be deposited, pursuant to the provisions of section 269 of the Surrogate’s Court Act, with the Treasurer of the City of New York, for the account of the legatee, and also prohibited withdrawals except on further court order. Whether that disposition was warranted, or whether — as urged by the Consular Section of the Hungarian Legation appearing as attorney in fact for the legatee — those funds should have been placed “m a blocked account ” maintained by the Hungarian Consulate General in a domestic bank, is the question presented. And, since the Appellate Division’s determination necessarily rests on a decision of constitutional issues, the appeal is properly here as of right (Civ. Prac. Act, § 588, subd. 1; see, also, Cohen & Karger, Powers of the New York Court of Appeals, § 57, pp. 257-258). Section 269 of the Surrogate’s Court Act, upon which the surrogate relied, provides that, “ Where it shall appear that a legatee * * * would not have the benefit or use or control of the money or other property due him, or where other special circumstances make it appear desirable that such payment should be withheld, the decree may direct that such money or other property be paid into the surrogate’s court for the benefit of such legatee ”. Contrary to appellant’s contentions, that statute is valid; it may not be stricken as unconstitutional, upon the ground (1) that subdivision (b) of section 5 of the federal Trading with the Enemy Act (TJ. S. Code, tit. 50, Appendix, § 5, subd. [b], as amd. by Appendix, § 616), assertedly pre-empting the field, precludes local legislation such as section 269; (2) that it contravenes the Treaty between the United States and Hungary; or (3) that it encroaches upon federal power over foreign commerce. We consider each of those grounds.

Section 5, subdivision (b), of the Trading with the Enemy Act grants to the President “ During the time of war or * * * national emergency ” the power to regulate * ® * or prohibit, any acquisition, holding, withholding, use, transfer * * * importation or exportation of * * * any property in which any foreign country or a national thereof has any interest ” except “ upon such terms and conditions as [he] may prescribe ”. Exercising this authority, the President, in April of 1940, issued Executive Order No. 8389 (United States Code Ann., tit. 12, pp. 456 et seq.; Code of Fed. Reg., Cum. Supp., tit. 3, p. 645) prohibiting, except as specifically authorized ”, all transactions involving property “ in which any foreign country designated in this Order, or any national thereof, has at any time on or since the effective date of this Order had any interest ”. Section 3 made March 13, 1941 the effective date of this Order * * * with respect to ” nationals of Hungary.

This federal regulatory scheme, it is self-evident, serves a purpose entirely unrelated to the goal of the New York provision. The national enactment seeks to check * * * trading with the enemy. Its prime purpose is to stop such uses of foreign property rights as might imperil national defense.” (Polish Relief Comm. v. Banca Nationala a Rumaniei, 288 N. Y. 332, 337; see, also, Alexewicz v. General Aniline & Film Corp., 181 Misc. 181, 186.) Section 269 of the Surrogate’s Court Act, in contrast, aims “ to promote the basic object and obligation of courts of decedent devolution to use their utmost endeavors to effectuate the express or implied wishes of a decedent respecting the disposal of his assets on death.” (Matter of Weidberg, 172 Misc. 524, 528.) A note appended to section 269, indicative of its design (see Matter of Pelcyger, 171 Misc. 1016, 1017), recites that it shall apply where transmission or payment to a beneficiary, legatee or other person resident in a foreign country might be circumvented by confiscation in whole or in part.” (L. 1939, ch. 343, note; see, also, Note, 17 N. Y. U. L. Q. Rev., pp. 314-316; cf. Opton, Legacies to Foreign Residents and the New Amendment to Section 269, Surrogate’s Court Act, N. Y. L. J., Sept. 21,1939, p. 728, col. 1.) Since section 269 treats a matter beyond and outside the scope of the federal law, the area covered by the New York provision could not have been pre-empted by the national enactment. (See Maurer v. Hamilton, 309 U. S. 598, 602 et seq.; Kelly v. Washington, 302 U. S. 1, 4 et seq.; People v. County Transp. Co., 303 N. Y. 391, 396-397, 402.)

Not only do the two provisions treat variant problems, but, equally important, their application — as illustrated by the case before us — in no way conflicts. As the Consular Section concedes, Executive Order No. 8389 bars delivery of the bequest to the foreign legatee, requiring, instead, its deposit “ in a blocked account in a domestic bank or with a public officer, agency, or instrumentality designated by a court having jurisdiction of the estate ”. (Public Circular No. 20, issued Oct. 23, 1942 [Code of Fed. Reg., Cum. Supp., tit. 31, p. 8926], explaining General License 30A [Code of Fed. Reg., Cum. Supp., tit. 31, § 131.30 a] issued under Executive Order No. 8389.) Achieving exactly the same result, the surrogate herein relied on section 269 to direct deposit of the bequest with the city treasurer. And this action has been approved by the very official charged with effectuating the goals of the federal statute; he wrote, in response to the executor’s request for a license to transfer the bequest to the city treasurer, that “ It would be in accordance with the policy of this Office to issue such a license Since a state provision ‘ will be stricken only if — in terms or in practical administration — it conflicts with the Federal law or infringes on its policy ’ ’, it necessarily follows that section 269 may stand along with subdivision (b) of section 5 of the Trading with the Enemy Act. (Quaker Oats Co. v. City of New York, 295 N. Y. 527, 534, affd. sub nom. Hill Packing Co. v. City of New York, 331 U. S. 787; see, also, Union Brokerage Co. v. Jensen, 322 U. S. 202; Cloverleaf Co. v. Patterson, 315 U. S. 148; Kelly v. Washington, supra, 302 U. S. 1; Gilbert v. Minnesota, 254 U. S. 325.)

Nor does the surrogate’s application of section 269 contravene provisions of the Treaty between this government and Hungary. Nothing contained in that Treaty compels, or even sanctions, transfer of the bequest to the Hungarian Consular officer. Article XXI of the Treaty (44 U. S. Stat. 2459) —the article relied on by appellant — recites: “A consular officer of either High Contracting Party may in behalf of his non-resident countrymen receipt for their distributive shares derived from estates in process of probate * * * provided he remit any funds so received through the appropriate agencies of his Government to the proper distributees ”. (Emphasis supplied.) By the proviso just quoted, the consular officer must be in a position to “ remit ” the funds in question to the proper distributees ”. That cannot, of course, be done in this case. The law of this country, as previously noted, expressly bars export of the funds. Indeed, when, on another occasion, the Hungarian Consul asserted his rights under the Treaty, the court decided against him, saying that, by reason of the freezing order, 11 there is an inference that if the share were paid to the Consul it would not reach the distributee himself.” (Matter of Plemich, 176 Misc. 560, 561; see, also, Matter of Yee Yoke Ban, 200 Misc. 499, 500.) Since, then, the Consular Section could not “ remit * * * to the proper distributees ” — to use the language of the Treaty — article XXI did not require that the funds be deposited in its name. It follows, therefore, that deposit of the bequest with the city treasurer, pursuant to section 269, in no way conflicts with the rights of either Consular Section or legatee under the Treaty.

We must likewise reject the contention that the New York statutory provision encroaches on national power “ to regulate Commerce with foreign Nations ” (U. S. Const., art. I, § 8). This state adopted section 269 to insure the intended distribution of estates administered by its courts. * * * every state * * * possesses [the power] of regulating the manner and term upon which property real or personal within its dominion may be transmitted by last will and testament ”. (Mager v. Grima, 8 How. [U. S.] 490, 493.) Incident to that power, each “ state establishes the procedure governing the probate of wills and the processes of administration.” (Lyeth v. Hoey, 305 U. S. 188, 193.) Barring any overriding federal policy,” that state procedure should be honored. (See Clark v. Allen, 331 U. S. 503, 517; see, also, Irving Trust Co. v. Day, 314 U. S. 556; Rocca v. Thompson, 223 U. S. 317; Matter of D’Adamo, 212 N. Y. 214; Matter of Deyo, 180 Misc. 32, 39.)

Thus, absent any clash with national policy, the Supreme Court has upheld the right of a state (1) to impose a special tax on legacies to aliens (see Mager v. Grima, supra, 8 How. [U. S.] 490); (2) to limit the right of foreign consuls to administer estates of their nationals (see Rocca v. Thompson, supra, 223 U. S. 317; see, also, Matter of D’Adamo, supra, 212 N. Y. 214); (3) to grant aliens an unqualified right to inherit property within its borders (see Blythe v. Hinckley, 180 U. S. 333); or (4) to make that right dependent on existence of a reciprocal right on the part of United States citizens in the alien’s country. (See Clark v. Allen, supra, 331 U. S. 503, 516-517.) Section 269 stands as a like exercise of state power over the administration of estates.

Concluding, then, that section 269 does not offend against any constitutional provision, we consider whether the surrogate properly applied the statute. The fact that this bequest consisted of blocked funds ” does not mean, as appellant argues, that section 269 is not needed. Since federal blocking regulations depend on considerations of national defense, the freezing order might conceivably be lifted, without assurance that the legatee would receive the funds. Section 269 is the means, in such a case, of assuring transmission of the bequest to its proper owner.

Moreover, the surrogate noted and properly relied upon the United States Treasury Department’s conclusion — contained in its Regulation of February, 1951 — that, with respect to checks or warrants drawn against funds of the United States in favor of Hungarian nationals, “ local conditions * * * in * * * Hungary * " * are such that there is not a reasonable assurance that a payee in those areas will actually receive ” payment or be able to negotiate them for full value ” (16 Federal Register 1818, amdg. Code of Fed. Reg. [1949 ed.], tit. 31, § 211.3, subd. [a]). That regulation was made, it should be noted, with the benefit of all the sources of information concerning conditions in Hungary that are available to a department of the federal government, and not to the surrogate. Nor may the finding be limited to government checks or notes, for a check drawn on government funds would be no less likely to reach an Hungarian payee than would a draft on any private account. The authoritative conclusion reached by the Treasury Department, therefore, was directly relevant to the surrogate’s determination, under section 269, that the legatee would not have the benefit or use or control of the money ” or that “ other special circumstances [made] it appear desirable that such payment should be withheld ”. Similar Treasury findings have been relied on to withhold and deposit, under the New York statute, bequests made to citizens, not only of Hungary (Matter of Getream, 200 Misc. 543), but Russia (Matter of Best, 200 Misc. 332), Lithuania (Matter of Geffen, 199 Misc. 756), the Republic of China (Matter of Yee Yoke Ban, supra, 200 Misc. 499, 500) and Occupied Norway (Matter of Ramberg, 174 Misc. 306). As in those cases, so here, the Treasury’s finding supplies sufficient basis in fact for the application of section 269.

And, finally, to the plaint that the surrogate violated the demands of due process by failing to grant a hearing, there are several answers.

In the first place, the legatee has not been deprived of her property. Concededly, she has title to the bequest; it has been set aside for her benefit and account, and is hers for the asking when reasonable assurance is given that she will receive it. As one court put it, section 269, “ far from constituting an impairment of [her] rights, was designed as and in fact is, a potent protector thereof.” (Matter of Weidberg, supra, 172 Misc. 524, 531.) Nor is her right to possession postponed. Quite apart from the fact that Executive Order No. 8389 would, in any event, have compelled deposit of the bequest in a blocked account, the surrogate actually concluded that, because of conditions in Hungary, the probability was that, even if the funds had been transmitted to Hungary, the legatee would not have received them. As soon as conditions in that country change — and the laws of our government permit unblocking of the funds belonging to an Hungarian national — the surrogate will undoubtedly order the funds withdrawn from the. city treasury and transmitted to the legatee. Manifestly, section 269 was designed, and was here invoked, to protect the legatee’s property and to insure that she receives it.

In the second place, there has in no event been denial of due process. The Consular Section raised only issues of law, and the hearing of such questions upon appeal affords a full measure of due process. (See American Sur. Co. v. Baldwin, 287 U. S. 156, 168; York v. Texas, 137 U. S. 15, 20; see, also, Phillips v. Commissioner, 283 U. S. 589, 596-597.) At no point did appellant deny the fact — indicated by the Treasury Department in its 1951 regulation (16 Federal Register 1818, amdg. Code of Fed. Reg. [1949 ed.], tit. 31, § 211.3, subd. [a]) — that conditions in Hungary negate the likelihood that the legatee would receive her bequest, and at no time during the pendency of the proceeding in the Surrogate’s Court was a hearing sought on that issue.

Moreover, and of transcendent importance, appellant may still have a hearing on that question. Under the decree before us, the Consular Section is privileged to apply at any time to the surrogate for an order permitting it to withdraw the funds in question from the city treasury. (See Matter of Landau, 187 Misc. 925; Matter of Alexandroff, 61 N. Y. S. 2d 866.) And, upon such application, it may show that conditions in Hungary justify the belief that the legatee will receive her bequest. The assurance of such a hearing fully satisfies the demands of due process. (Cf. Chase Securities Corp. v. Donaldson, 325 U. S. 304, 309, n. 5, par. 2; American Sur. Co. v. Baldwin, supra, 287 U. S. 156,168; York v. Texas, supra, 137 U. S. 15, 20.)

The order should be affirmed, with costs.

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

Order affirmed. [See 305 U. Y. 691.]

      . Although the Treaty expired on July 5, 1952 (see State Department Bulletin, Vol. XVIII, No. 455, pp. 382-383; Vol. XXV, No. 629, pp. 95-96; Vol. XXV, No. 649, p. 914; Vol. XXVI, No. 667, p. 946), and is no longer in effect, we have assumed that its provisions are here controlling, since it was in force when the case was decided by the surrogate. (Cf. Santovincenzo v. Egan, 284 U. S. 30, 36.)


author: Loughran, Ch. J.

text:
    Charles Humbeutel, as Executor of Anna Humbeutel, Deceased, Appellant, v. Harry Humbeutel, Respondent.
    Argued January 8, 1953;
    decided March 6, 1953.

      Edward Scherer and Sidney E. Friedman for appellant.
    The amendment did not vary or change the judgment, and the court had the power to grant said amendment. (Colson v. Pelgram, 259 N. Y. 370; Matter of Andrews, 172 Misc. 373; Schuehle v. Reiman, 86 N. Y. 270; Garlock v. Vandevort, 128 N. Y. 374; S. J. E. Bldg. Corp. v. Matt O. M. Constr. Co., 265 N. Y. 282; Bohlen v. Metropolitan Elevated Ry. Co., 121 N. Y. 546.)

      Stuart Edward Levison for respondent.
    A judgment once entered is final and except as expressly authorized by statute, the court cannot vary or change any provision thereof. (Herpe v. Herpe, 225 N. Y. 323; Matter of Silbermann v. Morton, 274 App. Div. 335; Hydraulic Power Co. v. Pettebone-Cataract Paper Co., 194 App. Div. 819; Allocco v. Rainone, 73 N. Y. S. 2d 330; Miltenberg & Samton v. Falkingham, 273 App. Div. 631; Duckworth v. Duckworth, 200 Misc. 10.)
   Loughran, Ch. J.

This action was commenced by Anna Humbeutel against her son Harry Humbeutel to recover money and other property which she had entrusted to him. At the trial, he expressed his willingness to account for the things claimed by her and an interlocutory judgment directing him to do so was entered. Such an account was taken and stated by an Official Referee whose report was confirmed. This led to entry of a final judgment directing the defendant to turn over cash and securities in his possession that belonged to his mother. The final judgment, however, did not fully conform to the interlocutory judgment, because the final judgment required the defendant to deliver the cash and securities in question to the Bronx County Trust Company as custodian for his mother, whereas the interlocutory judgment had required the defendant to make direct delivery thereof to her.

His mother died before she had signed a custodial agreement which counsel for the Bronx County Trust Company had prepared for her. Her son, Charles Humbeutel, was then appointed executor of her estate. In that capacity, he commanded the defendant Harry Humbeutel to deliver to him cash and securities that are here in question. A part thereof was turned over by the defendant but he refused to surrender a number of United States Savings Bonds that had been issued in the name of the mother as co-owner with one or another of her children. He also insisted on his asserted right to retain deposits that had been made in joint savings accounts bearing the names of himself and his mother.

In due course, Special Term ruled that Charles Humbeutel, as executor of his mother’s estate, should be the plaintiff herein and also granted to him an order amending the final judgment nunc pro tune by adding thereto a provision which directed that any property of the mother remaining under the defendant’s control be turned over by him to the present plaintiff Charles Humbeutel as her executor. But the Special Term order so amending the final judgment was reversed by the Appellate Division on the law and the facts and the motion for that order was denied "without prejudice to proper proceedings to establish the right of the plaintiff Charles Humbeutel to possession of the property in question (277 App. Div. 981). From that determination of the Appellate Division, the plaintiff Charles Humbeutel has appealed to us, as was his right (S. J. E. Bldg. Corp. v. Matt O. M. Constr. Co., 265 N. Y. 282; Hansen v. City of New York, 299 N. Y. 136).

We cannot agree with the Appellate Division in its conclusion that Charles Humbeutel, as executor of his mother’s estate, was required to take further proceedings to establish his right to possession of the property in question. For his mother’s right to possession thereof had been conclusively established by the final judgment in this action. As her executor Charles Humbeutel was a continuation of her personality before the law for the purposes of judicial settlement of her estate and so he had the right to demand enforcement of the final judgment in this action — a right that had been brought about by operation of law (see Civ. Prac. Act, §§ 84, 557, subd. 3; § 654).

Moreover, the Special Term was compelled by the circumstances of the case to grant the motion for an amendment of the final judgment nunc pro tune. The provision therein for a custodial agreement became inoperative when the mother died. Her personal representative had come into court — as he was bound to do — and had demanded possession of property which the final judgment had declared to be hers. The nunc pro tune amendment of that judgment was necessary to effectuate the substantive provisions thereof and thus was quite in order (see Civ. Prac. Act, § 105; cf. Herpe v. Herpe, 225 N. Y. 323, 327).

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

Lewis, Conway, Desmond, Dye, Fund and Fboessel, JJ., concur.

Ordered accordingly.


text:
    In the Matter of the Adoption of Jane L. Eaton, Respondent. Melvin C. Eaton et al., Appellants.
    Argued January 13, 1953;
    decided March 6, 1953.

      James W. Coleman for appellants.
    I. There is ample uncontroverted evidence to sustain the application of the foster parents for the abrogation of the adoption of respondent upon the grounds of her willful desertion of petitioners. (Matter of Davis, 142 Misc. 681; Williams v. Williams, 130 N. Y. 193; People ex rel. Comrs. of Public Charities & Correction v. Cullen, 153 N. Y. 629; Schilling v. Schilling, 173 A. 10; People v. Crouse, 86 App. Div. 352; Matter of Souers, 135 Misc. 521; Matter of Anonymous, 157 Misc. 951.) II. There is ample uncontroverted evidence to sustain the application of the foster parents for an abrogation of the adoption upon the grounds of respondent’s misdemeanor and ill behavior. (People v. Robinson, 73 Misc. 343.) III. Since respondent was an adult when the abrogation proceeding was commenced it was not necessary to appoint a special guardian or issue a citation or order to show cause directed to the State Charities Aid Child Placing Agency. (People v. Ahearn, 196 N. Y. 221; People ex rel. Bockes v. Wemple, 115 N. Y. 302; Matter of Watson, 148 N. Y. S. 902; Perkins v. Smith, 116 N. Y. 441; Matter of Green, 102 Misc. 45.) IV. Even though article 7 of the Domestic Relations Law is not founded on the common law, it should, nevertheless, be liberally construed in order that the intent and purpose of the statute be realized. (American Historical Soc. v. Glenn, 248 N. Y. 445.)

      Livingston S. Latham for respondent.
    I. Grounds for abrogation of adoption of respondent have not been pleaded or proved. (Matter of Anonymous, 185 Misc. 962; Matter of Buss, 234 App. Div. 299; Baumann v. Baumann, 250 N. Y. 382; Matter of Souers, 135 Misc. 521; Matter of Anonymous, 157 Misc. 951.) II. A special guardian should have been appointed to protect the interests of respondent. III. The State Charities Aid Child Placing Agency was a necessary party to this proceeding.
   Desmond, J.

This proceeding was brought, in reliance on section 118 of the Domestic Relations Law, for abrogation, by and at the suit of the foster parents, of the adoption, in 1936 when she was seven years old, of their foster child who, at the time the petition for abrogation was filed herein, was twenty-two year old, and married. The petition alleged, inter alla, that respondent, soon after she attained the age of twenty-one, notified petitioners that she wished to leave home, and did, and that petitioners had not since heard from her. The foster child appeared by counsel and opposed the application. After the taking of testimony, the County Judge announced that he would make an order of abrogation, and, in the order which he after-wards signed, made a finding that respondent “ has wilfully deserted her foster parents and been guilty of other ill behavior. ’ ’ Although, since we are about to hold that there was no power in the County Court to make any order of abrogation in the situation shown here, this matter is not now important, we think it proper to call attention to the absence from this record of any finding that ‘1 due regard to the interests of both [that is, parent and child] requires that such adoption be abrogated ” (Domestic Relations Law, § 118). We think the statute makes such a determination an indispensable condition for any section 118 abrogation (see, also, references to best interests of the foster child, in sections 116 and 117, which deal, respectively, with abrogations by consent, and on petition for or on behalf of the child).

The Appellate Division, in reversing this County Court order and dismissing this petition, held that the evidence had not sufficiently established that the abrogation “ was required with a due regard to the interest of both parties.” (280 App. Div. 147, 150.) There is no need, however, for us to look at the evidence, since we agree with another holding in the Appellate Division opinion (p. 149), that section 118 refers to cases only, 11 where the foster parents seek abrogation of the adoption during the minority of the foster child.” We agree that there is in New York no method available whereby, after an adopted child has reached the age of twenty-one years, the adoption can be annulled on petition of the foster parent or parents, because of occurrences or conduct during the period of foster parenthood. Confining ourselves strictly to the question tendered to us here, we express no opinions concerning abrogation or vacatur of an adoption, because of fraud or other infirmity in connection with the adoption itself (see, for instance, Stevens v. Halstead, 181 App. Div. 198; Myers v. Myers, 197 App Div. 1; O’Connor v. President & Directors of Manhattan Co., 278 App. Div. 862; Matter of Bruce [Atkins], 295 N. Y. 702). Our holding is that the authority conferred by section 118 terminates when the child comes of age.

On few questions is decisional law so clear as on this: that adoption, and the abrogation thereof, is, in New York, solely the creature of, and regulated by, statute law (Matter of Ziegler, 82 Misc. 346, affd. 161 App. Div. 589; Carroll v. Collins, 6 App. Div. 106; United States Trust Co. v. Hoyt, 150 App. Div. 621; Matter of Thorne, 155 N. Y. 140; Matter of MacRae, 189 N. Y. 142; Matter of Cook, 187 N. Y. 253; Carpenter v. Buffalo Gen. Elec. Co., 213 N. Y. 101; Matter of Anonymous, 185 Misc. 962). The only statute under which the present petitioners seek, or could seek, relief, is section 118 of the Domestic Relations Law. Although that enactment nowhere says, in precise words, that it applies up to the time only when the foster child reaches maturity, we think, as did the Appellate Division here, that it can mean nothing else. Its scheme and its language show that it has to do with adopted infants, not adoptees who have arrived at competent adulthood. The petition for abrogation, says section 118, must be made on the ground of the wilful desertion of such foster parent by such foster child or because of any misdemeanor or ill behavior of such child.” We think those phrases deal with violations of the duties owed by minors to their parents, not the duties, entirely different in kind and number, of grown-up sons and daughters to their fathers and mothers. Other signs point the same way: for instance, the section requires notice to the authorized agency, if any, which was a party to the adoption, or, if no such agency exists, then to “ the board, commission or official charged with the jurisdiction of the poor of the county ”. More significantly, the statute requires that ‘ ‘ unless such agency or institution shall appear on the return of such process ”, a special guardian shall be appointed by the court “ to protect the interests of such foster child ” in the proceeding (there was no such appearance or appointment here). So well established is our New York practice of providing special guardians for infants or incompetents or other persons needing special protection, only, that the Legislature, in mandating that the foster child, in such an abrogation proceeding, be represented by a welfare agency, a public welfare officer, or a special guardian, could not have been providing for an adult, competent adopted child. Furthermore, the last sentence of the statute authorizes the judge or surrogate, if abrogation be ordered, to make such disposition of the foster child as he may deem proper.” Such dispositions ” are not made as to adults. This last sentence has, as the Appellate Division pointed out, a separate history of its own, which is almost conclusive, on our question. In earlier days (see L. 1884, ch. 438, § 13) the authorization to the abrogating court was to provide for disposition of the former foster child as in the case of “ vagrant, truant or disorderly children.” The Legislature, we are convinced, was, throughout section 118, thinking and talking about children still needing parental care and subject by law to parental discipline. Research seems to confirm this, since we find no decision anywhere (except the County Judge’s here) applying section 118 to the case of an adult foster child.

Elsewhere in article VII (headed “ Adoption ”) of the Domestic Relations Law, the Legislature distinguished between minor and adult adoptees, and between adoptees over or under fourteen years of age (see §§ 109, 110, 111, 112, 113, 116, 117). But in section 118 there was no necessity for any of that, since it was the abrogation as to infants only, that was to be authorized. We do not know why the Legislature set such a limitation — perhaps the thought was that, after childhood and adolescence, necessity for terminating an adoption is so unlikely that the threat of so drastic a court remedy should not overhang the adopted child’s whole adult life. But, whatever be the reason, the limitation is there.

The order should be affirmed, with costs.

Loughrax, Ch. J., Lewis, Coxway, Dye, Fuld and Froessel, JJ., concur.

Order affirmed.


author: Froessel, J.

text:
    Nectar Kumkumian, as Administratrix of the Estate of Martin Kumkumian, Deceased, Appellant, v. City of New York, Respondent.
    Argued January 13, 1953;
    decided April 9, 1953.

      Jacob D. Fuchsberg and Irving A. Thau for appellant.
    I. The evidence fully warranted the jury in finding defendant liable under the doctrine of last clear chance, as enunciated in Chadwick v. City of New York (301 N. Y. 176). (Cafaro v. City of New York, 271 App. Div. 1024.) II. Plaintiff, proving that visibility of the roadbed, the construction of the tracks and the speed of the train were such that reasonable alertness on the part of the motorman would have avoided deceased’s being struck by the train, established a prima facie case of negligence. (Noseworthy v. City of New York, 298 N. Y. 76; Mikorski v. City of New York, 270 App. Div. 769; Stors v. Long Island R. R. Co., 266 App. Div. 1025; Clarke v. City of New York, 295 N. Y. 861; Ziehm v. State of New York, 270 App. Div. 876; Trimble v. City of New York, 275 App. Div. 169; Sutton v. Erie R. R. Co., 145 App. Div. 122; McCabe v. Richell Realty Corp., 248 App. Div. 743; Frate v. State of New York, 245 App. Div. 442; Kennealy v. State of New York, 135 Misc. 467; Garrow v. State of New York, 294 N. Y. 741.)

      Denis M. Hurley, Corporation Counsel (Joseph F. Mulqueen, Jr., and Seymour B. Quel of counsel), for respondent.
    I. The Appellate Division properly directed a dismissal of the complaint since there was no proof that the motorman actually knew of or had reason to apprehend deceased’s presence in the tunnel. Since there was no evidence that the automatic operation of the brakes supplied actual notice to the motorman that anyone was in peril and since such operation of the brakes did not amount to proof supporting an inference of such notice in connection with the peril of deceased on the tracks, there was no basis for the verdict of the jury under the last clear chance doctrine. (Elliott v. New York R. T. Corp., 293 N. Y. 145; Panarese v. Union Ry. Co., 261 N. Y. 233; Chadwick v. City of New York, 301 N. Y. 176; Wright v. Union Ry. Co., 224 App. Div. 55, 250 N. Y. 526; Bragg v. Central N. E. Ry. Co., 228 N. Y. 54.) II. There was no evidence upon which a recovery under the doctrine of ordinary negligence could be supported. There was no proof that deceased was ever in a position in front of the train in which the motorman could have seen him. Therefore, the motorman cannot be held negligent in failing to see deceased at a time when he had an opportunity of averting tlic accident. Moreover, the proof shows that deceased was a trespasser to whom defendant owed no duty save to refrain from wantonly and willfully injuring him. There is no proof of such conduct by the motorman. (Reynolds v. New York Central & H. R. R. R. Co., 58 N. Y. 248; Ruppert v. Brooklyn Heights R. R. Co., 154 N. Y. 90; Allen v. Stokes, 260 App. Div. 600; McGoey v. City of New York, 304 N. Y. 584.)
   Froessel, J.

Plaintiff brought this action to recover for the alleged wrongful death of her husband, who was struck in a tunnel by a subway train operated by defendant, the City of New York. The case was submitted to the jury on the theory of ordinary negligence as well as under the doctrine of last clear chance, with instructions to indicate upon which theory a verdict for plaintiff, if found, was based. The jury returned a verdict for plaintiff on the theory of last clear chance.

The trial court, by two separate orders, (1) granted defendant’s motion to set aside the verdict and for a new trial, and (2) denied defendant’s separate motions to dismiss the complaint and for a directed verdict. The Appellate Division modified the order first above mentioned “ on the law and the facts by setting aside the verdict and dismissing the complaint ”, and reversed the second order on the law, granting the motions to dismiss the complaint ” and for a directed verdict in favor of defendant.

Decedent, thirty-nine years old, was a Western Union messenger in his home city of Philadelphia, using his own automobile in his work. Because it was undergoing repairs, he left his home, without a bag, on January 23, 1945, for a brief “ vacation ” in Atlantic City. While away, an upstairs neighbor, at the request of his wife who stated he had been sick, listed his name with the local police as a missing person. His wife and cousin testified that each had spoken with him on the telephone on January 25th, when he stated he would come to New York the following day. Nothing further is known of decedent’s movements until his body was discovered under the subway train on the following morning as hereinafter set forth.

At about 9:00 a.m. of January 26th, a local subway train, en route to Coney Island from Manhattan on the B. M. T. line in Brooklyn, was being operated between the Prospect Avenue and 25th Street stations. The train was composed of five cars, one a freight car. The only employees thereon were a motorman and a conductor, the latter being stationed in the fourth car. The tunnel between the two stations is about 2,000 feet long and is straight, with a slight downgrade from Prospect Avenue to 25th Street. A “bench walk ” forming a narrow (two feet) continuation of the station platforms runs along the tunnel wall between the stations with a handrail next to the wall. Below and adjoining the bench walk are the third rail, then the running rails, and finally a wall separating the local from the express tracks.

The motorman was coasting on the slight grade at a speed of about 12 or 15 miles per hour, when at a point about 1,400 feet from the Prospect Avenue station and 600 feet from the 25th Street station his train came to an emergency stop. This was a “ surprise ” to him, as it ivas caused by the automatic emergency equipment, which he testified may be actuated in one of three ways: (1) by the blowing of an electric pneumatic valve; (2) by a passenger pulling the emergency strap, or (3) by the operation of a tripping device under each car indicating that some object or body had come in contact therewith.

"When the train had stopped, the motorman made no effort to investigate, but merely reset the brakes by pressing a button in his cab two or three times and proceeded, a matter of a few seconds. He must then have known that the valves were functioning. After proceeding “ About a car length ” — 67 feet — the train again went into emergency, and again the motorman reset the brakes, and started the train without making any attempt whatsoever to find out what was wrong. The conductor also did nothing, although he knew the first two stops were emergency stops. Again in approximately a car length — the distance between the tripping devices — the emergency brake stopped the train for the third time.

Both motorman and conductor then inspected the valves and found them in order. There was no evidence that anyone had pulled the emergency strap. They thereupon walked through the train, and when they opened the door of the third car they found decedent’s body wedged ” between the third rail and the running rail on the right side of the fourth car. Evidence of blood, flesh and clothing was found on the brake rigging of the third and fourth cars on the right side of the wheel trucks. Nowhere else was found any physical evidence of the accident. The motorman stated the body was then actually steaming.”

An inspection of the train disclosed that the tripcock mechanism was in proper order. This is a device which hangs down outside the left front and right rear wheels of each car, about two inches above the track. It is so designed that it will move upon striking any object or body in the roadway and so open a contact causing the brakes to operate. It is returned to the normal operating position when the motorman resets the brakes. It may be noted that apparently there is no prescribed procedure when an emergency stop occurs, for the rule book was produced at the trial but not referred to by either side. The cause of death, according to the medical examiner, was multiple extreme injuries ’ ’, the external injuries being multiple amputations and fractures. No alcohol was found in the liver.

The jury and the courts below were clearly right in declining to fasten liability on the theory of ordinary negligence. There is no evidence as to how decedent came into the subway tunnel. Plaintiff’s speculation as to how he came into the subway, and from which station he had traveled the long distance into the tunnel, is based wholly on conjecture, or, as the Appellate Division put it, “ upon inference heaped upon inference ” (280 App. Div. 82, 35). Any recovery, if at all sustainable, could not be based on ordinary negligence. The indisputable fact remains, even if we accept plaintiff’s theory, that decedent left the lighted platform, and walked 1,400 feet (about six or seven city blocks) into the dimly lit tunnel on a narrow walk, the tunnel wall on one side of him and the tracks just below. It is inconceivable that the least perceptive of men would fail to realize the danger of such a course. He had no right to be there. No reasonable man could classify such conduct as anything but negligence, and so we conclude, as the jury must have by failing to find for plaintiff on the theory of ordinary negligence, and as did the Appellate Division in holding that decedent was guilty of contributory negligence as a matter of law.

That leaves for consideration the last clear chance theory upon which the jury rendered its verdict for plaintiff. We have noted that this doctrine does not apply unless there is present an issue of contributory negligence (Lee v. Pennsylvania R. R. Co., 269 N. Y. 53, 55). There must be a time sequence — an interval in which plaintiff’s act of negligence is complete and in which defendant has an opportunity to avert the disaster (Panarese v. Union Ry. Co., 261 N. Y. 233). Where defendant thus had a last clear chance to avoid the accident, it may be said that plaintiff’s negligence is not the proximate cause of his injury (Bragg v. Central N. E. Ry. Co., 228 N. Y. 54).

In the last-cited case, a railroad employee fell asleep close to the rails and was struck by a train. We noted that the railroad could not be held liable merely because the engineer failed to see him in time, or even because he assumed Bragg would get off the tracks when a warning signal was given (cf. Klein v. Long Island R. R. Co., 303 N. Y. 807), and said (p. 57): “ Only, when he discovered that Bragg was inert or unconscious, or for some reason would not or could not safeguard himself had the engineer any reason to anticipate an accident. Only then should he have sought to avoid it.”

Later, in Woloszynowski v. New York Central R, R. Co. (254 N. Y. 206, 208-209), Chief Judge Cabdozo, speaking for the court, summarized the now familiar rule thus: The doctrine of the last clear chance, however, is never wakened into action unless and until there is brought home to the defendant to be charged with liability a knowledge that another is in a state of present peril, in which event there must be reasonable effort to counteract the peril and avert its consequences * *. Knowledge may be established by circumstantial evidence, in the face even of professions of ignorance * * * but knowledge there must be, or negligence so reckless as to betoken indifference to knowledge.” (Emphasis supplied.) In that case the engineer and fireman were absolved of liability for a mere error of judgment in the emergency presented when they learned of decedent’s plight, for they did not stand by inert and callous, unwilling to do anything.”

We have recently applied the doctrine in a factual context somewhat different from previously decided cases (Chadwick, v. City of New York, 301 N. Y. 176, 181). A truck driver was attracted by a hand rapping at his window, an attempt, by one of two boys who had ‘1 hitched ’ ’ a ride, to stop the truck because the other was in danger of falling off. We there noted that the doctrine is not limited to “ situations where a defendant has precise knowledge of both the exact nature of the danger and of the particular individual threatened so long as there is proof to support an inference that someone is in peril ’ ’, and that it was clearly the import of our later decisions “ that when the defendant first became conscious of the impending danger and whether he then did all a reasonable man would under the circumstances to prevent disaster were questions of fact for the jury.”

The case at bar comes within the principles enunciated in the foregoing authorities. It is important to keep in mind, moreover, that this is not the ordinary case of a man being run down by a train in a tunnel, where there is nothing a motorman could have foreseen or done to prevent the accident, as, e.g., McGoey v. City of New York (304 N. Y. 584). Such cases have been properly disposed of upon the ground that mere failure to see the victim is ordinarily insufficient to support a recovery. Here the jury had the right to find that the i automatic equipment stopped the train in time to have saved decedent’s life, and we are concerned only with what happened after that, not with the motorman’s initial failure to see decedent.

Manifestly the purpose of the emergency equipment is to stop the train when danger threatens, unknown to the operating personnel, thus giving them opportunity to take measures appropriate to the situation. The tripcock mechanism is not placed on the cars as an ornament, nor does it serve as a fender; it is a warning device that operates the brakes — to save human life and prevent injury. It is not installed to function when the motorman sees an object on the tracks, for then he stops the train. Nor is it present to obviate serious collisions, for then it could not function in time. It must have at least as one of its primary purposes the protection of life, in the light of the possibility that employees or others will at times be in dangerous proximity to the tracks. Indeed, it is not altogether unknown for “ passengers ” so to trip the brakes, even within the confines of the tunnel (see Matter of Kleid v. Carr Bros., 300 N. Y. 270).

In the case before us, the brakes were tripped, not once or twice, but thrice. The motorman and conductor, both experienced men, made no investigation and took no corrective action until after the third stop, although there was ample time to have done so. The motorman did not so much as open the door and glance the length of his own car, but, ‘ ‘ Without any lapse of time, except the time necessary to perform the operations ”, he reset the brakes immediately after each of the first two stops, an act which in itself could be found to have been sufficient to apprise him that the emergency system was in good working order.

The evidence in this record would support an inference that decedent was struck successively by the tripcocks of the first, second and third cars, thus actuating the brakes. Moreover, the inference is permissible that the fatal injuries were not incurred until after the second stop and were received under the third and fourth cars of the train. In view of the medical examiner’s opinion, and the evidence that the most serious injuries were incurred upon contact with the wheel trucks of those cars, such evidence was sufficient to support that inference (see Hawkes v. Goll, 281 N. Y. 808; Jones v. New York Central & H. R. R. R. Co., 28 Hun 364, affd. 92 N. Y. 628), particularly in a death case (Noseworthy v. City of New York, 298 N. Y. 76; Braun v. Buffalo Gen. Elec. Co., 200 N. Y. 484, 496).

Surely we cannot say, as a matter of law, under the last clear chance doctrine, that the motorman and conductor were not negligent in twice disregarding the emergency equipment, which is not placed in service to be ignored, and were merely chargeable with an error of judgment. At least it became a question of fact as to whether such conduct constitutes “ negligence so reckless as to betoken indifference to knowledge ” (Woloszynowski v. New York Central R. R. Co., supra, p. 209), and whether they “ ignored the warning ”, like the driver in the

Chadwick case (supra, p. 180), while there was still opportunity to avoid the accident. It matters not that they received the warning* through a faultless mechanical instrumentality rather than a human agency, so long as they had, as we said in the last-cited case, “ the requisite knowledge upon which a reasonably prudent man would act ” (p. 181). The jury was entitled to find that lack of knowledge on the part of defendant’s employees as to decedent’s position of danger did not come about through mere lack of vigilance in observing the tracks, but rather as the result of their own willful indifference to the emergency called to their attention by the automatic equipment, to which clear warning* they paid no heed. When they did belatedly carry out their plain duty to investigate, they found decedent, and it may be inferred that they would have seen him had they carried out that duty after the second stop — still belatedly, yet in time to have saved his life. We are of the opinion that plaintiff made out at least a prima facie case under the doctrine of last clear chance.

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

Lottghban, Ch. J., Lewis, Conway, Desmond, and Dye, JJ., concur with Fboessel, J.; Fuld, J., dissents and votes for affirmance in the following memorandum: This is not, in my view, a case for the application of the doctrine of the last clear chance. Certainly, neither the motorman nor the conductor knew that any person was in peril in time to have prevented his death, and the evidence is insufficient to support the inference that they should have known. I would affirm the judgment in defendant’s favor.

Judgment reversed, etc.


text:
    Josephine Polizotti, Respondent, v. Carmello Polizotti, Appellant.
    Argued January 5, 1953;
    decided April 9, 1953.

      Robert F. Armstrong, Irving I. Erdheim and Edward M. Chapian for appellant.
    I. The complaint in respondent’s action for separation having been dismissed on the merits, there remained no jurisdiction, as a matter of law, either in the Supreme Court to make an order adjudicating appellant in contempt for failure to pay accrued temporary alimony, or in the Appellate Division to modify, and affirm as modified, the order of the Supreme Court. (Hayes v. Hayes, 150 App. Div. 842, 208 N. Y. 600; Matter of Thrall v. Thrall, 12 App. Div. 235, 153 N. Y. 644; Mittman v. Mittman, 263 App. Div. 384; Di Benedetto v. Di Benedetto, 248 App. Div. 604; Saunders v. Saunders, 63 N. Y. S. 2d 880; Mills v. Mills, 95 Misc. 231; Matter of Hudes, 128 Misc. 362; Jacobson v. Jacobson, 85 Misc. 253; Weber v. Weber, 93 App. Div. 149; Kellogg v. Stoddard, 89 App. Div. 137; Cutrone v. Cutrone, 176 Misc. 988, 262 App. Div. 992.) II. The Supreme Court acted outside the scope of the powers vested in it by section 753 of the Judiciary Law when it adjudicated appellant in contempt after the complaint in the separation action had been dismissed. (Kellogg v. Stoddard, 89 App. Div. 137; Mittman v. Mittman, 263 App. Div. 384.) III. The case of Maser v. Maser (276 App. Div. 733) is not controlling here, it being clearly distinguishable on its facts. (Hayes v. Hayes, 150 App. Div. 842, 208 N. Y. 600; Matter of Thrall v. Thrall, 12 App. Div. 235, 153 N. Y. 644.)

      Paul M. Klein for respondent.
    The court had jurisdiction to make the order. (Mazer v. Mazer, 276 App. Div. 733, 301 N. Y. 774; Shepard v. Shepard, 99 App. Div. 308; Van Ness v. Ransom, 215 N. Y. 557; Livingston v. Livingston, 173 N. Y. 377.)
   Loughran, Ch. J.

The plaintiff is the wife of the defendant. In 1947, she commenced against him an action for a separation and moved therein for temporary alimony and counsel fees. Special Term granted her motion by an order which required him to pay to her temporary alimony at the rate of $25 a week and counsel fees of $250. In October, 1951, she moved to punish him for his failure to make payment of the moneys awarded to her by the court. But before that motion was heard, her separation action had been reached for trial on the merits and the Trial Judge had directed dismissal of the complaint. Two days thereafter, an Official Referee of the Supreme Court held a hearing upon her motion to punish the defendant for contempt but that motion was not decided until after the defendant had entered judgment dismissing the complaint in the separation action. Even so, the Official Referee by an order dated January 15,1952, adjudged the defendant to be guilty of a civil contempt of court. Prom that determination, the defendant appealed to the Appellate Division where, by an order dated May 26, 1952, (1) the contempt order was modified by dating it nunc pro tune as of the day on which the motion for that order was heard by the Official Eeferee, and (2) the contempt order as so modified was affirmed.

By leave of the Appellate Division, the defendant has brought the case to us upon the following questions certified: ‘ ‘ Did the Supreme Court, as a matter of law and not in the exercise of discretion, have jurisdiction or power to make the order dated January 15, 1952? ” Did this court, as a matter of law and not in the exercise of discretion, have the jurisdiction or power to make its order dated May 26,1952, modifying the above order of the Supreme Court? ”

The Supreme Court may award temporary alimony to a wife during the pendency of a separation action (Civ. Prac. Act, § 1169). Such an allowance is frequently referred to as alimony pendente lite and is awarded to enable the wife to support herself until the action is decided (see Bannon v. Bannon, 270 N. Y. 484). We have held that the right to enforce payment of temporary alimony ends when the action in which it was awarded is terminated by settlement, abandonment, discontinuance, or dismissal of the complaint (Matter of Thrall v. Thrall, 12 App. Div. 235, affd. 153 N. Y. 644; Hayes v. Hayes, 150 App. Div. 842, affd. 208 N. Y. 600; Conklin v. Conklin, 201 App. Div. 170, affd. 234 N. Y. 546; Carbulon v. Carbulon, 293 N. Y. 375). Hence the first question certified shquld be answered in the negative.

Mazer v. Mazer (276 App. Div. 733, mod. 301 N. Y. 774) is a different case. We there held that an order for temporary alimony and orders of sequestration, contempt and commitment made during the pendency of a separation action did not fall upon the entry of a final judgment in favor of the wife.

We turn now to the second question certified. The Supreme Court has power to make an order which will take effect retroactively as of the return day of a motion, if the court has jurisdiction of the action or special proceeding in which the motion was made (Civ. Prac. Act, § 113,127; Matter of Jetter, 78 N. Y. 601, 605; see Harris v. Harris, 259 N. Y. 334). But in the uresent case the entry of judgment dismissing the complaint deprived the court of jurisdiction of the motion made by the plaintiff to punish the defendant for civil- contempt of court and, that being so, there was no warrant for making such an order nunc pro tune (Stock v. Mann, 255 N. Y. 100,103; Mohrmann v. Kob, 291 N. Y. 181, 186). Hence the second question certified should be answered in the negative.

The order of the Appellate Division and that of the Official Referee of the Supreme Court should be reversed, without costs, and the motion to punish defendant for civil contempt of court denied. The questions certified should be answered in the negative.

Opinion prepared by Lotjghran, Oh. J., who died before the decision.

Lewis, Conway, Dye, Fuld and Froessel, JJ., concur; Desmond, J., taking no part.

. Order reversed, etc.