author: Lewis, J.

text:
    Frances N. Sturman, Respondent, v. New York Central Railroad Company, Appellant.
    Argued June 4, 1940;
    decided July 24, 1940.

      K. O. Mott-Smith and Clive C. Handy for appellant.

      Ralph Stout, Louis Rothbard, A. S. Cutler and Abraham Males for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughban, Ripest and Conway, JJ. Lewis, J., dissents in the following opinion, in which Finch and Sears, JJ., concur:

Lewis, J.

(dissenting). My dissent from the view of a majority of the court rests upon my failure to find any evidence that the plaintiff’s injuries resulted from a breach of duty by the defendant railroad. In cases such as this, of alleged tort liability where the fact of plaintiff’s personal injuries is not questioned, it is not enough to find a breach of legal duty by the party charged with fault. A chain of causation between the breach of duty and the injuries must be found intact. Here that chain of causation is not intact.

I accept the plaintiff’s assertion that in relation to the highway bridge which the defendant railroad had erected in 1911 to carry the Albany Post Road over its tracks near Crugers, N. Y., the defendant was under a continuing duty to maintain the bridge and to exercise reasonable care not unnecessarily to impair the usefulness of the highway. (Railroad Law [Cons. Laws, ch. 49], §. 21; Sturman v. N. Y. C. R. R. Co., 280 N. Y. 57, 61.)

As the Albany Post Road approaches defendant’s bridge from the south the paved highway surface gradually narrows from its full width of twenty-seven feet, at a point one hundred and twenty feet south from the structure, to a width of twenty and three-tenths feet where the highway enters ' the bridge. As means of warning north-bound traffic of the danger incident to the narrowing of the roadway the State highway authorities, in the exercise of their exclusive authority to do so (Vehicle and Traffic Law [Cons. Laws, ch. 71], § 88, subd. 9), have erected various signs, signals and safety devices. At a point 580 feet south of the bridge and facing north-bound traffic is a large sign of black and white checkerboard design on which appears in letters six inches high the word “ Danger ” and in letters five inches high the words “ Narrow Bridge.” From that point northerly on either side of the highway and three and one-half feet from the edges of the pavement are rows of white posts ten feet apart between which are strung steel cables. As one approaches the bridge he passes on his right, facing him, a lettered sign twenty-five by nine inches upon which appears in reflector buttons the word Slow.” Finally, between the Slow ” sign and the bridge structure, there is erected on the outer edge of the easterly shoulder of the road an octagonal red reflector sign, the presence of which, as we shall see, had an important bearing upon the cause of this accident.

The accident occurred about midnight on December 14, 1930 — a clear night, when the paved surface of the road was dry. The plaintiff was a passenger in a car, driven by one Levey, which was proceeding northerly on the Post Road. At a point 766 feet south from defendant’s highway bridge the road curves to the northwest over a distance of about 250 feet at the end of which curve and for a distance of 414 feet leading to the bridge the road is straight. Its grade around the curve mentioned above is descending and gradually diminishes until a point is reached 165 feet from the bridge where it ascends slightly to the level of the bridge floor.

If we consider the testimony of Levey, who was the only eye witness who was able to describe the accident in detail, it appears that he approached the bridge on the right or easterly side of the center line of the highway at a speed of twenty-five to thirty miles per hour and without interference by traffic of any kind. He did not see either the " Danger — Narrow Bridge ” sign or the reflector Slow ” sign. Finally, however, he reached a point where he saw, forty feet ahead of him, the octagonal red reflector sign. It is important to note that at no time did his car leave the paved surface on the right or easterly side of the road; he did not strike the curbing to his right which bordered the narrowed roadway leading onto the bridge floor nor did he strike any part of the easterly side of the bridge structure or its approaches on his right. The point which influences my judgment is that, instead of coming into contact with the curbing to his right or with some part of the highway facilities or the bridge which served to create the dangerous narrowing of the roadway, he turned his car suddenly to the left immediately upon seeing the red reflector sign. Having reacted in that manner to the warning sign he applied his brakes, skidded fifty feet along a dry pavement, mounted the left or westerly curb on the opposite side of the road and there crashed through a pipe railing which served to fence the west side of the roadway leading to the bridge. From that point his car plunged forward over telephone wires strung beneath the bridge and fell to the defendant’s railroad tracks below. At some point in the strange course of the car the plaintiff sustained the serious personal injuries for which she has been awarded a verdict.

Conceding, of course, that the negligence of the driver Levey is not to be imputed to the plaintiff and admitting the continuous legal duty which was the defendant’s, to which reference has been made, I find nothing in the record which justifies the legal conclusion that the plaintiff’s injuries resulted directly from a breach of legal duty by defendant.

A different question would be here if Levey had struck the easterly curb or some obstruction in the highway or bridge which served to accomplish the narrowing of the roadway to accommodate its width to the narrow bridge. But instead of having the progress of his car affected by the dangerous feature of the highway — the narrowing of the roadway — it was the warning of the red reflector sign which caused his abnormal reaction to it. He tells us: “To me it [the red reflector sign] indicated some sort of a dangerous condition, any one of a few things: some excavation, some danger point, a stalled truck, anything at all that indicated danger. * * * Q. Was your car under control at the time? A. Yes, sir. * * * Q. And you turned your car to the left then? A. Yes, sir. * * * Q. What did you do? A. As I told you before, I threw the clutch in, took my foot off the accelerator and put my foot on the brake. It all happened in a split second, you know. The light just threw itself right at me suddenly, with no indication or warning beforehand, and here I am riding along at a fairly decent rate, and suddenly this light just jumps right into my face, and I naturally turned to the left. * * * when I saw this light suddenly confronting me, I swung to the left thinking I had plenty of room on the left. It was then that I saw the outlines of this bridge and a comparatively narrow roadway through which I had to navigate in order to get over the thing safely. [The width of the bridge roadway was twenty and three-tenths feet.] Now, I had swung over to the left. When I saw that narrow roadway which I had to go across, I quickly turned to the right, and before I knew it, I went over the rail. * * * ”

Thus does the record make it clear to me that plaintiff’s injuries were not caused by the presence of defendant’s bridge and the narrowing highway leading to it, nor by a lack of warning of the danger to traffic thus created. When the plaintiff charged the State with negligence which she then alleged to be the sole cause of her injuries, this court unanimously affirmed findings made by the Appellate Division that It would not have been necessary for Levey to vary the course of his car at all in order to safely cross the bridge,” and that The sole and proximate cause of the accident was Levey’s negligence in failing to observe and heed the warnings that the State had placed to apprise passing motorists of the potential danger of the narrow bridge, and, moreover, the negligent manner in which the car was being operated.” (Sturman v. State of New York, 244 App. Div. 865; affd., 269 N. Y. 627.) My examination of the record of trial in the case last cited discloses no substantial difference from the record now before us as it relates to the witness Levey’s description of the manner in which the accident happened.

The present record is devoid of evidence which connects plaintiff’s injuries with defendant’s fault. Rather does it disclose that the cause of the accident was the abnormal reaction of the driver Levey to a warning sign. Legal liability cannot be predicated upon abnormal reaction to a precautionary measure for which the defendant was not responsible.

Judgment affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    Royal Indemnity Company, Respondent, v. Long Island Rail Road Company, Appellant.
    Argued June 4, 1940;
    decided July 24, 1940.

      Ralph E. Hemstreet and Louis J. Carruthers for appellant.

      William E. Lyons for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Rippey and Sears, JJ. Finch and Lewis, JJ., dissent on the ground that the decedent was guilty of contributory negligence as matter of law. Taking no part: Conway, J.


text:
    The People of the State of New York, Respondent, v. Morris Potash, Appellant.
    Argued June 5, 1940;
    decided July 24, 1940.

      LeRoy Mandle and Maurice Wahl for appellant.

      Thomas E. Dewey, District Attorney (Charles W. Manning and Stanley H. Fuld of counsel), for respondent.
   Judgment affirmed; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Sears and Lewis, JJ. Taking no part: Conway, J.


text:
    In the Matter of George A. Eichler, Appellant, against John J. McElligott, as Fire Commissioner of the City of New York, etc., Respondent.
    Argued June 5, 1940;
    decided July 24, 1940.

      Herman A. Gray and Maxwell M. Booxbaum for appellant.

      William C. Chanler, Corporation Counsel (James Hall Prothero, Paxton Blair and Thomas W. A. Crowe of counsel), for respondent.
   Order affirmed, without costs, on the authority of Matter of Sheridan v. McElligott (278 N. Y. 59) and Matter of Phillips v. McElligott (254 App. Div. 863; affd., 279 N. Y. 792). No opinion.

Concur: Loughran, Finch, Rippey, Sears and Lewis, JJ. Lehman, Ch. J., and Conway, J., dissent on the ground that the record shows that the Commissioner in this case has failed to make any determination in regard to matters upon which he is required under the statute to pass judgment.


text:
    Florence Ash, Respondent, v. Mutual Life Insurance Company of New York, Appellant.
    Argued June 6, 1940;
    decided July 24, 1940.

      Frank A. Fritz, Arthur G. Patterson, Winthrop G. Brown and Louis W. Dawson for appellant.

      Herman A. Gray and Maxwell Booxbaum for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ.


text:
    In the Matter of The Village of Tupper Lake, Respondent, against Milo R. Maltbie et al., Constituting the Public Service Commission of the State of New York, et al., Appellants.
    Argued June 6, 1940;
    decided July 24, 1940.

      Gay H. Brown, John T. Ryan and Porter L. Merriman for appellants.

      Harold H. McBride for respondent.
   Appeal dismissed, with costs, on the ground the order is not final. No opinion.

■ Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ.


text:
    Rachel Schlacter, as Administratrix of the Estate of David Schlacter, Deceased, Appellant, v. Victor J. Dowling et al., as Receivers of Interborough Rapid Transit Company, Respondents.
    Argued June 6, 1940;
    decided July 24, 1940.

      Myron Wisoff and William S. Butler for appellant.

      J. Osgood Nichols and James L. Quackenbush for respondents.
   Judgment affirmed, with costs. The plaintiff having conceded the correctness of the report of the weather bureau, there was no substantial evidence that the water upon the subway platform was the cause, as plaintiff claimed, of the occurrence which resulted in the death of the intestate. No opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Sears, Lewis and Conway, JJ. Rippey, J., dissents on the ground a question of fact was presented.


text:
    Louisa Cavaccini, as Administratrix of the Estate of Paul Cavaccini, Deceased, Appellant, v. Farm Products Corporation et al., Respondents.
    Argued June 7, 1940;
    decided July 24, 1940.

      William A. Mulvey for appellant.

      John J. Scully for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Lohghran, Finch, Rippey, Sears, Lewis and Conway, JJ.


text:
    Harry J. Schumm, Appellant, v. 25th Properties, Inc., Respondent.
    Submitted June 7, 1940;
    decided July 24, 1940.

      Gustave G. Rosenberg for appellant.

      George J. Stacy, James J. Mahoney and Paul L. Murphy for respondent.
   Judgment of Appellate Division reversed, with costs in this court and in the Appellate Division, and judgment of Trial Term affirmed. The record presents questions of fact which were properly submitted to the jury. No opinion.

Concur: Lotjghran, Finch, Rippey, Lewis and Conway, JJ. Dissenting: Lehman, Ch. J., and Sears, J.


text:
    Joseph T. Sharkey, Individually and as Vice-Chairman of the Council of the City of New York, Appellant, v. Fiorello H. LaGuardia, Individually and as Mayor of the City of New York, et al., Respondents.
    Argued June 10, 1940;
    decided July 24, 1940.

      George Rosling and E. Ivan Rubenstein for appellant.

      William C. Chanler, Corporation Counsel (Leo Brown of counsel), for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Lotjghban, Finch, Rippey, Sears and Conway, JJ. Taking no part: Lewis, J.


text:
    The People of the State of New York ex rel. Alfredo S. G. Taylor et al., Respondents, against James J. Sexton et al., Constituting the Board of Taxes and Assessments of the City of New York, et al., Appellants.
    Argued June 10, 1940;
    decided July 24, 1940.

      William C. Chanler, Corporation Counsel (Arthur H. Goldberg, Arthur A. Segall and Mendel Lurie of counsel), for appellants.

      Leon Sacks and Bela Darwin Eisler for respondents.
   Order affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Sears and Conway, JJ. Taking no part: Lewis, J.


text:
    Home Indemnity Company, Respondent, v. Filyork Holding Corporation et al., Appellants.
    Argued June 10, 1940;
    decided July 24, 1940.

      Abraham J. Halprin for appellants.

      Frederick W. Hamberg and William A. Nunlist for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Sears and Conway, JJ. Taking no part: Lewis, J.


text:
    Frank A. Babor, Appellant, v. Herman G. Goldberg, Respondent.
    Argued June 10, 1940;
    decided July 24, 1940.

      Irving Maxon for appellant.

      Samuel D. Lasky and Leo L. Hoffman for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughran. Finch, Rippey, Sears and Conway, JJ. Taking no part: Lewis, J.


text:
    Franciene Hofmann, Respondent, v. Max H. Hofmann et al., Defendants, and Sunwood Homes, Inc., et al., Appellants. (Eleven other actions.)
    Argued June 10, 1940;
    decided July 24, 1940.

      Louis Rivkin and Jay Leo Rothschild for appellants.

      Arthur H. Ellis and L. Edward Masin for respondents.
   Judgments modified by striking out the provision for reformation of the deeds and, as modified, affirmed, with costs to the respondents. The representations contained in the advertisements coupled with the oral representations entitle the plaintiffs to injunctive relief against the defendants but furnish no ground for the reformation of the contract. No opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Sears and Conway, JJ. Taking no part: Lewis, J.


text:
    New York & Queens Transit Corporation, Appellant, v. Brooklyn Union Gas Company, Respondent.
    Argued June 10, 1940;
    decided July 24, 1940.

      Wallace T. Stock and Harold J. Cloutman for appellant.

      Maximilian Moss and Dimitri G. S. Eristoff for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ.


text:
    Olive Coat Company, Inc., Appellant, v. City of New York, Respondent.
    Argued June 11, 1940;
    decided July 24, 1940.

      Emanuel Redfield for appellant.

      William C. Chanler, Corporation Counsel (Sol Charles Levine, Arthur A. Segall and Milton Sandberg of counsel), for respondent.
   Judgment affirmed, with costs. (Matter of Western Electric Co. v. Taylor, 276 N. Y. 309.) No opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippet, Sears, Lewis and Conway, JJ.


text:
    Anna Bickman et al., Appellants, v. City of New York et al., Respondents.
    Argued June 11, 1940;
    decided July 24, 1940.

      Murray Weiss for appellants.

      William C. Chanler, Corporation Counsel (Milton I. Newman and Paxton Blair of counsel), for respondents.

      A. Joseph Geist and Theodore Kadin for Chamber of Commerce of the Rockaways, amicus curiæ.

   Judgment affirmed, with costs. The validity of any assessment imposed may be challenged hereafter. We do not pass now upon such question. No opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ.


text:
    Mary Burns, as Administratrix of the Estate of John J. Burns, Deceased, Respondent, v. Ninety-Fifth Street & Lexington Avenue Corporation, Appellant.
    Argued June 11, 1940;
    decided July 24, 1940.

      George J. Stacy and James J. Mahoney for appellant.

      Francis J. Hughes, Bernard Meyerson and Vincent J. Vanasco for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughban, Pinch, Rippey, Sears, Lewis and Conway, JJ.


text:
    Raymond Natell, an Infant, by Frank Patterson, His Guardian ad Litem, et al., Appellants, v. Taylor-Fichter Steel Construction Company et al., Respondents, Impleaded with Another.
    Submitted June 11, 1940;
    decided July 24, 1940.

      Joseph F. Lenihan and Louis D. Posner for appellants.

      H. H. Brown and E. C. Sherwood for Taylor-Fichter Steel Construction Company, respondent.

      Abraham Dubensky, in person, Manton Marks and Stanley R. Levy for Abraham Dubensky et al., respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ.


text:
    Marie Haberman, Respondent, v. M. Moran Transportation Lines, Inc., et al., Appellants. Jacob Haberman, Respondent, v. M. Moran Transportation Lines, Inc., et al., Appellants.
    Argued June 11, 1940;
    decided July 24, 1940.

      Phillip T. Young and Donald M. Mawhinney for appellants.

      Walter F. Martineau and Donald V. Carr for respondents.
   In each action, judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ.


text:
    The People of the State of New York, Respondent, v. Alexander Burt, Jr., Appellant.
    Argued June 12, 1940;
    decided July 24, 1940.

      R. Harold Paltrow for appellant.

      Charles P. Sullivan, District Attorney (J. Irwin Shapiro and George P. Stier of counsel), for respondent.
   Judgment affirmed. The question of the constitutional validity of the Penal Law, § 1898-a, is not presented on this record. No opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ.


text:
    Anthony Cambareri, Individually and as Administrator of the Estate of Anthony J. Cambareri, Deceased, Appellant, v. Board of Education of City of Albany, Respondent. Anthony Cambareri, Appellant, v. Board of Education of City of Albany, Respondent.
    Argued June 12, 1940;
    decided July 24, 1940.

      Bernard Ellenbogen and Seymour Ellenbogen for appellant.

      Joseph J. Casey, Corporation Counsel (Ralph S. Leonard of counsel), for respondent.
   In each action, judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Lottghran, Finch, Rirpey, Sears- Lewis and Conway, JJ.


text:
    In the Matter of the Estate of George Moffitt, Deceased. Charles H. Schoeffler, Appellant; Mary Schoeffler et al., Respondents.
    Argued June 12, 1940;
    decided July 24, 1940.

      Earl Barkhuff and P. C. Dugan for appellant.

      Daniel J. Dugan, Jr., special guardian, for respondents.
   Order affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Lottghran, Finch, Rippey, Sears, Lewis and Conway, JJ.


text:
    Theodora B. Frost, Individually and as Executrix of George S. Frost, Deceased, Respondent, v. A. Pierre Bachman, as Executor of Charles G. Hensley, Deceased, Appellant.
    Argued June 12, 1940;
    decided July 24, 1940.

      A. Pierre Bachman, appellant, in person.

      John F. Finn, Jr., for respondent.
   Order affirmed and judgment absolute ordered appellant on the stipulation, with costs in all courts. No opinion.

Concur: Finch, Rippey, Lewis and Conway, JJ. Dissenting: Lehman, Ch. J., Lotjghran and Sears, JJ.


text:
    Nathan B. Schreier, Respondent, v. John M. Cashin, as Trustee in Bankruptcy of Kinderhook Manufacturing Co., Inc., Appellant, Impleaded with Others.
    Argued June 12, 1940;
    decided July 24, 1940.

      John H. Cogan and Emanuel A. Obstfeld for appellant.

      Forrest S. Chilton for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ.


text:
    George Kaminsky, Respondent, v. American Newspapers, Inc., Appellant.
    Argued June 12, 1940;
    decided July 24, 1940.

      Charles Henry and James Carroll for appellant.

      Robert H. Elder, Otho S. Bowling, Samuel H. Ostroff and George Kaminsky, in person, for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Lohghran, Finch, Rippey, Sears, Lewis and Conway, JJ.


text:
    Glens Falls Insurance Company, Respondent, v. Carolina Freight Carriers Corporation et al., Appellants.
    Argued June 13, 1940;
    decided July 24, 1940.

      Bert Cotton, Irving J. Mishkin and Norman S. Rein for Carolina Freight Carriers Corporation, appellant.

      Milton Kunen and Alfred J. Swan for Akers & Hudson Motor Lines, Inc., appellant.

      Forrest E. Single, Douglas D. Crystal and Edward L. Johnson for respondent.
   Order affirmed, with costs. Questions certified on appeal by Carolina Freight Carriers Corporation answered in the negative. First three questions certified on appeal by Akers & Hudson Motor Lines, Inc., answered in the negative, and fourth question certified answered in the affirmative. No opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ.


text:
    In the Matter of James J. Weldon et al., Appellants, against Alfred Rheinstein, as Commissioner of the Department of Housing and Buildings of the City of New York, et al., Respondents.
    Argued June 13, 1940;
    decided July 24, 1940.

      Gabriel L. Kaplan and Sidney A. Fine for appellants.

      William C. Chanler, Corporation Counsel (Seymour B. Quel and Arthur H. Kahn of counsel), for respondents.
   Order affirmed, without costs, on ground that proceedings are barred by the four month limitation contained in section 1286 of the Civil Practice Act. No opinion.

Concur: Lehman, Ch J., Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ.


text:
    Milton J. Ballin, Respondent, v. Apperson Realty Corporation, Appellant, Impleaded with Others.
    Argued June 13, 1940;
    decided July 24, 1940.

      W. Howard Fisher for appellant.

      Ralph K. Jacobs and Albert Blumenstiel for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ.


text:
    In the Matter of the Estate of Irving I. Bloomingdale, Deceased. Richmond J. Reese, as Executor of Irving I. Bloomingdale, Deceased, Appellant; Donald Bloomingdale, et al., Respondents.
    Argued June 13, 1940;
    decided July 24, 1940.

      Richmond J. Reese and Alexander J. Lindsay for appellant.

      Alfred J. Talley and James A. McKaigney for Geanne H. B. Butler, as executrix and trustee, respondent.
   Order affirmed, without costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ.


text:
    Mabel Rooney, Respondent, v. William F. Rooney, Appellant.
    Submitted June 14, 1940;
    decided July 24, 1940.

      John W. Simpkins, 2nd, and Edward G. Jenkins for appellant.

      Harry Berger and Reuben L. Haskell for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughban, Finch, Rippey, Sears, Lewis and Conway, JJ.


text:
    Frederick W. Boelsen, Appellant, v. Ruth L. Boelsen, Respondent.
    Submitted June 14, 1940;
    decided July 24, 1940.

      John C. Osborne, George C. Wildermuth and Henry Vollmer, Jr., for appellant.

      Charles Gottlieb and George Moskowitz for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ.


text:
    In the Matter of John C. Creveling & Son Corporation, Respondent. Philip Cohen, doing Business under the Firm Name of Marcus Cohen & Son, et al., Appellants; Edward G. Elkins, Respondent.
    Submitted June 14, 1940;
    decided July 24, 1940.

      Harry G. Anderson, Samuel Bader and Maxwell B. Washor for appellants.

      Abraham Apat for John C. Creveling & Son Corporation, respondent.

      Louis J. Weinshenker, Alan G. Fleischer and William F. Litter for Edward G. Elkins, respondent.
   Order affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Sears,. Lewis and Conway, JJ.


text:
    Emanuel M. Ostrow, Respondent, v. Justina Tila, as Committee of Joseph Tila, an Alleged Incompetent, Appellant.
    Submitted June 14, 1940;
    decided July 24, 1940.

      James J. Jackman, Edward Friedman and George H. Feirberg for appellant.

      Michael Levine for respondent.
   Order affirmed, without costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Ripfey, Sears, Lewis and Conway, JJ.


text:
    The People of the State of New York ex rel. Herman Goldowitz, Respondent, v. Morris Karnes, Appellant.
    Argued July 23, 1940;
    decided July 24, 1940.

      I. Maurice Wormser and Leonard Bronner, Jr., for appellant.

      Arthur D. Brennan, Chester A. Slocum and James D. Hopkins for respondent.
   Order affirmed, without costs; no opinion.

Concur: Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ. Lehman, Ch. J., dissents on the ground that the cases which hold that there can be no casting vote unless there be a tie are based upon statutes which specifically so provide. In this case it appears from a reading of the statute that the Mayor has a casting vote whenever his vote would be a vote that turns the scab (Cf. Oxford Dictionary).


text:
    The People of the State of New York ex rel. John J. O’Neill, Respondent, v. William D. Hill, Appellant.
    Argued July 23, 1940;
    decided July 24, 1940.

      I. Maurice Wormser for appellant.

      Arthur D. Brennan, Chester A. Slocum and James D. Hopkins for respondent.
   Order affirmed, without costs; no opinion.

Concur: Lehman, Ch. J., Lotjghran, Finch, Rippey, Sears, Lewis and Conway, JJ.


text:
    Albany Port District Commission, Appellant, v. National Commercial Bank and Trust Company of Albany, Respondent.
    Argued July 23, 1940;
    decided July 24, 1940.

      Robert E. Whalen, Joseph J. Casey, John E. Wisely and John C. Watson for appellant.

      Avrom M. Jacobs and Robert C. Roskanzer for respondent.
   Judgment affirmed, without costs; no opinion.

Concur: Finch, Rippey, Sears, Lewis and Conway, JJ. Lehman, Ch. J., and Loughran, J., dissent and vote to reverse the judgment of the Appellate Division and to affirm the judgment of Special Term.


text:
    The People of the State of New York ex rel. Livingston Platt et al., Individually and Constituting the Board of Trustees of the Village of Rye, Respondents, against Ernest F. Eilert et al., Constituting the Board of Elections of the County of Westchester, et al., Appellants.
    Submitted July 23, 1940;
    decided July 24, 1940.

      William A. Davidson, County Attorney (Frank J. Claydon of counsel), for appellants.

      Samuel LaBosa for Village of Port Chester, amicus curiæ.

      Arthur D. Brennan and Richard Barber for respondents.
   Order affirmed, without costs (Lane v. Johnson, 283 N. Y. 244). No opinion.

Concur: Lehman, Ch. J., Lottghran, Finch, Rippey, Sears, Lewis and Conway, JJ.


text:
    George H. Brick et al., Doing Business under the Firm Name of Brick & Ballerstein, Appellants, v. Cohn-Hall-Marx Company, Respondent.
    Submitted July 23, 1940;
    decided July 24, 1940.
   Motion to amend the remittitur denied, with ten dollars costs and necessary printing disbursements. (See 283 N. Y. 99.)


text:
    Renee Berkowitz, an Infant, by Ida Berkowitz, Her Guardian ad Litem, et al., Appellants, v. City of New York, Respondent, Impleaded with Others.
    Submitted July 23, 1940;
    decided July 24, 1940.

      William C. Chanler, Corporation Counsel (Paxton Blair of counsel), for motion.

      Louis Rothbard opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    The People of the State of New York ex rel. Walter Wisniewski, Appellant, against William Hunt, as Warden of Attica State Prison, Respondent.
    Submitted July 23, 1940;
    decided July 24, 1940.

      Walter Wisniewski, in person, for motion.
    No one opposed.
   Motion denied. The order is not appealable.


text:
    The People of the State of New York, Respondent, v. Frank A. Erickson, Appellant.
    Submitted July 23, 1940;
    decided July 24, 1940.
   Motion for reargument denied. (See 283 N. Y. 210.)


text:
    Sara Cordover, Respondent, v. Anna Cordover, Appellant, Impleaded with Others.
    Submitted July 23, 1940;
    decided July 24, 1940.

      A. M. Perkus for motion.

      Arnold E. Feldman and Samuel L. Slutsky opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion, unless appeal is perfected and ready for argument during second week of next session, in which event the motion is denied.


text:
    The People of the State of New York ex rel. Louis E. Gagnier, Appellant, against William H. Hunt, as Warden of Attica State Prison, Respondent.
    Submitted July 23, 1940;
    decided July 24, 1940.

      Louis E. Gagnier, in person, for motion.
    No one opposed.
   Motion denied on the ground the order is not appealable.


text:
    Harry Kershnar et al., Co-Partners under the Firm Name of Kershnar Bros. Live Poultry Market, Respondents, v. Max Heller, as President of Chicken Drivers, Chauffeurs and Helpers Union, Local No. 167, Appellant.
    Submitted July 23, 1940;
    decided July 24, 1940.

      Leon Herzfeld and Jacob W. Friedman for motion.

      Milton Hertz, Charles Wilson and Eugene Frederick Roth opposed.
   Motion denied, with ten dollars costs and necessary printing disbursements, on the ground the order is not final.


text:
    In the Matter of the Will of Banned Friend, Deceased. Douglass Newman et al., as Committee of Annie Ratkowsky, an Incompetent Person, Appellants; Isidor Friend, as Trustee under the Will of Banned Friend, Deceased, et al., Respondents.
    Submitted July 23, 1940;
    decided July 24, 1940.
   Motion for reargument denied, with ten dollars costs and necessary printing disbursements. (See 283 N. Y. 200.)


text:
    Max Mencher, Appellant, v. Edward A. Richards et al., Respondents, Impleaded with Others.
    Submitted July 23, 1940;
    decided July 24, 1940.
   Motion to amend the remittitur denied, with ten dollars costs. (See 283 N. Y. 176.)


author: Per Curiam.

text:
    Otto Frank, Appellant, v. Floyd L. Carlisle et al., Respondents, Impleaded with Others.
    Submitted July 23, 1940;
    decided July 24, 1940.
   Per Curiam.

The only question presented by counsel on the appeal in this action related to the sufficiency of the complaint in the allegations regarding the so-called Oswego transactions and, as the per curiam, opinion shows, that was the only portion of the complaint considered by us in our determination reversing the judgment of the Appellate Division. Other portions of the complaint were disregarded upon the express statement of the appellant’s counsel that we need not consider them.

The motion for reargument should be denied, with ten dollars costs and necessary printing disbursements. (See 282 N. Y. 507.)

The motion to amend the remittitur should be denied.


author: Finch, J.

text:
    In the Matter of Arthur C. Baker et al., Appellants, Impleaded with Others. Central New York Power Corporation, Respondent. In the Matter of Anne W. Cheney et al., Appellants. Central New York Power Corporation, Respondent.
    Argued January 18, 1940;
    decided October 1, 1940.

      Henry T. Dorrance, Maurice Supiro and George H. Kenny for appellants in first proceeding.

      Carl E. Dorr for appellants in second proceeding.

      Thomas F. Fennell, II, and Myron G. Bronner for respondent in first proceeding and Thomas F. Fennell, II, Crandall Melvin and Jerome Cheney for respondent in second proceeding.
   Finch, J.

These are two cases in which the main question concerns the power of Special Term to award costs in an appraisal proceeding brought by dissenting stockholders to fix the value of their stock. (Stock Corporation Law [Cons. Laws, ch. 59], § 21.)

The Baker and the Cheney cases arise out of the consolidation of the Utica Gas and Electric Company and the Syracuse Lighting Company, Inc., respectively, together with other public utility companies, to form the respondent Central New York Power Corporation, hereafter referred to as the corporation. In the Baker proceeding, 123 separate petitions were made for the appointment of appraisers. All but three of the petitions were verified by one Grant as agent. Three of the petitions were verified by the stockholders themselves. The corporation interposed to each petition verified by Grant, an answer which questioned the timeliness of the application, the ownership of the stock by petitioner, the authority of the agent, etc. Each answer requested that the petition be dismissed, with costs. After a hearing all applications were consolidated by the order which appointed the appraisers. In its opinion the court expressly reserved the question of costs until the conclusion of the entire proceeding; the order confirming the report of the appraisers also reserved the question of costs. Thereafter, by separate order, the court awarded costs as follows: $10 motion costs to each of the 123 petitioners (retaxed at $1,200); a single trial fee, including disbursements, of $101.40; an additional allowance of $2,000, pursuant to section 1513 of the Civil Practice Act.

Upon appeal by the corporation from the separate order awarding costs, the Appellate Division reversed upon the law, and certified to this court the question, Is the order appealed from proper as matter of law? ”

In the Cheney case thirty-three separate petitions were made for the appointment of appraisers, but no answers were interposed by the corporation. After appraisers were appointed, by separate orders in each of the thirty-three proceedings, the court, upon motion by the corporation, consolidated_the proceedings, but made no award of costs at that time, nor reserved the question of costs. The report of the appraisers was confirmed by order of Special Term over the opposition of the corporation and costs were awarded by the same order as follows: $10 motion costs to each of the thirty-three petitioners ($330); a single trial fee and disbursements ($327.27); an additional allowance of $2,000 pursuant to section 1513 of the Civil Practice Act.

Upon appeal by the corporation, the Appellate Division modified the order of confirmation by striking the award of costs. Petitioners appeal to this court as of right from that part of the order of the Appellate Division which disallowed costs.

We shall consider first, whether statutory provision exists for the award of costs in proceedings brought under section 21 of the Stock Corporation Law, and second, whether the specific items of costs were properly awarded by Special Term.

First. Whether costs are allowable in a proceeding under section 21 of the Stock Corporation Law. Section 1492 of the Civil Practice Act provides that costs in a special proceeding are to be awarded in the discretion of the court at the same rates and in like manner as are allowed for similar services in an action. Thus, the court is given power in its discretion to award costs in a special proceeding. It is conceded by respondent corporation that a proceeding under section 21 of the Stock Corporation Law is a special proceeding and, therefore, the parties in the cases at bar may have costs in the discretion of the court. Even in the absence of such a concession, the conclusion is inevitable in view of the statutory definitions of a special proceeding (Civ. Prac. Act, §§ 4, 5; General Construction Law [Cons. Laws, ch. 22], §§ 11-a, 46-a) and the holding of this court that section 21 created a special proceeding. (Matter of Bickerton, 232 N. Y. 1.) It follows that costs are to be allowed in a stock appraisal proceeding in the same manner as in any special proceeding unless there is some provision which exempts stock appraisal proceedings from the operation of section 1492 of the Civil Practice Act. Admittedly, the result for which respondent corporation contends is not provided for by any express provision contained in section 21 of the Stock Corporation Law. Therefore, the question is whether section 21, when read as a whole, can be taken to evince a legislative intent to exclude the operation of section 1492 of the Civil Practice Act. We do not so read section 21. In enacting that statute, the Legislature authorized a type of special proceeding which has certain peculiar features of its own. For these features express provision was made. The expenses of the appraisers are to be borne by the corporation. But in so far as stock appraisal proceedings are similar to other special proceedings, it was unnecessary to repeat in section 21 the provisions already enacted in the general statutes. (Cf. Matter of Bickerton, supra.) When so read, section 21 of the Stock Corporation Law and section 1492 of the Civil Practice Act are found not to be inconsistent but to complement one another, each providing for matters not covered by the other.

In analogous cases the court has held that the absence of cost provisions in a particular statute creating a special proceeding does not prevent the award of costs under the general practice provisions relative to costs in a special proceeding even though the particular statute contains a provision for the payment of the fees and expenses of commissioners. (Matter of Low, 208 N. Y. 25; Matter of City of Brooklyn, 148 N. Y. 107; Matter of State of New York, 152 App. Div. 633; affd., 207 N. Y. 582.) In Matter of Low (supra) condemnation proceedings were brought under the Rapid Transit statute which provided for the payment of the fees and expenses of the commissioners, but was silent on the question of costs to be awarded to the parties. The Supreme Court awarded costs under the authority of section 3240 of the Code (now section 1492 of the Civil Practice Act), and this award was sustained on appeal, the court saying: Beyond any question these proceedings were special proceedings, and in the absence of some other controlling provision, I see no reason why the section in question does not apply.” (208 N. Y. at p. 32.)

Approaching the matter from the practical application of the result reached, we find that the purposes of the statute coincide with an award of costs to the successful party. As to dissenting minority stockholders, the purpose is apparent to protect them from any loss since this court has held that “ In effect [they] are being ousted from the corporation.” (Matter of Fulton, 257 N. Y. 487, 494.) In fact, for small stockholders the expense of an appraisal proceeding might be prohibitive in the event that they could recover no costs or disbursements. Only by the allowance of costs can the stockholder be indemnified to some extent against loss incident to the proceeding. On the other hand, the corporation representing the majority stockholders is entitled not to have persons bring appraisal proceedings free from any liability for costs or disbursements. Indeed, in the Baker proceedings the respondent corporation in its answer requested that the petitions be dismissed, with costs. Unless there exists in the discretion of the court the power to award costs, neither the corporation nor the dissenting stockholders can be fully protected, and the purpose of the appraisal statute in that respect must fail.

Second. The particular items of costs. Trial fee and disbursements. A single trial fee and disbursements was allowed in each of the two consolidated cases, and no objection is raised except upon the general ground that no costs may be awarded in these proceedings. For the reasons already discussed, this item was properly allowed by Special Term. These were proceedings instituted and carried on to enforce a right. Aid of counsel was required, and the statute should not be so interpreted as to provide that property rights may be disposed of other than in a judicial proceeding upon the testimony of witnesses and upon legal evidence duly taken. (Matter of Bickerton, supra.) The fact that the issue was the value of the stock does not change or detract from the prosecution character of the proceedings. These petitioners prosecuted rights given them by section 21 of the Stock Corporation Law to have their stocks appraised and thereafter paid for by the corporation at the value so found. These values as found were above the values contended for by respondent corporation. It is clear, therefore, that petitioners have prosecuted their rights and have prevailed in the proceedings. The award of a trial fee was, therefore, proper.

Motion costs. Section 1486 of the Civil Practice Act provides that Costs upon a motion in an action * * * or to appoint an appraiser * * * may be awarded, either absolutely or to abide the event of the action, * * * in the discretion of the court or judge.” Respondent corporation contends that no motion costs can be awarded because (1) the motions are in a special proceeding and not in an action, (2) the applications are not motions, and (3) the order granting the applications did not award costs

The contention that motion costs are not available because they are special proceedings and not actions is completely answered by the provisions of section 1492, wherein it is provided that costs in special proceedings may be awarded in the discretion of the court in the same manner as in actions.

Section 113 of the Civil Practice Act defines a motion as follows: “An application for an order is a motion.” That the order granting the petitions and appointing appraisers is an order cannot be doubted. “A direction of a court or judge, made in an action or special proceeding, must be in writing * * *. Such a direction, unless it is contained in a judgment, is an order.” (Civ. Prac. Act, § 127.) In Matter of Bickerton (supra) this court declared that “ The appointment of appraisers * * * is in its nature an intermediate order * * *.” (232 N. Y. at p. 6.)

However, motion costs are to be allowed in the discretion of the court rendering decision on the motion. (Civ. Prac. Act, § 1486.) In disposing of the motion the court may award costs either absolutely, or the question of costs may be reserved; but unless either one of these two alternatives is adopted, it follows that the court has decided not to exercise its discretion in favor of the party seeking costs. (Price v. Price, 61 Hun, 604; Nellis v. DeForrest, 6 How. Pr. 413; Chadwick v. Brother, 4 How. Pr. 283; Morrison v. Ide, 4 How. Pr. 304.) In the Baker proceedings the court, in granting the motions, reserved decision on the question of costs, and hence their allowance at the conclusion of the entire case was proper. But in the Cheney proceedings the court neither granted costs nor reserved decision, and, therefore, no motion costs could be awarded by the court in rendering the final order in the proceedings.

Additional allowance pursuant to section 1513 of the Civil Practice Act. Section 1513 of the Civil Practice Act provides that “ in a difficult and extraordinary case, where a defense has been interposed * * *, the court, in its discretion, also may award to any party a further sum * * By the terms of the statute, three conditions must be met before the court may exercise its discretion to award an additional allowance, (1) a defense must have been interposed, (2) the case must have been difficult, and (3) the case must have been extraordinary. In Standard Trust Co. v. N. Y. C. & H. R. R. R. Co. (178 N. Y. 407) this court unanimously held that where in an action the defendant concedes the existence of the right of plaintiff to some recovery, and the only question which remains is a determination of the amount of damage, then the case is not a proper one for additional allowance. In the Cheney case no answer was interposed, and no defense was set up as to the right of petitioners to an appraisal. Thus, there is a lack of one of the three essential requirements, and hence there was no power in Special Term to award the additional allowance. Although an answer was interposed in the Baker case, the determination of the main question was no different from that in the Cheney proceeding. The difficulty of the contention of petitioners in the Baker case is that there has been no extraordinary and difficult trial of issues raised by the interposition of a defense. In estabhshing the three requirements for an additional allowance, the statute obviously contemplates that it will be awarded only where there has been a trial of the issues raised by the defense, and that the trial was extraordinary and difficult. In the Baker case the issues raised by the answer were tried before Special Term, and no suggestion is made that the trial of these issues was either extraordinary or difficult. Itis contended that the hearings before the appraisers constituted a trial which warranted the additional allowance. However, at this stage of the proceeding the only question was one of valuation, and it was not a trial of issues raised by a defense. Petitioners argue that, because a defense was interposed, resulting in a trial at Special Term which was neither extraordinary nor difficult, such a defense would authorize the award of an additional allowance for the trial before the appraisers which did not concern issues raised by the defense which had been interposed. Assuming, but without deciding, that the trial conducted by the appraisers was extraordinary and difficult, at this trial the issues were not those raised by the defense interposed by respondent corporation. The issues raised by the interposition of a defense by respondent corporation resulted in a trial which was not extraordinary or difficult. Petitioners, therefore, fail to establish the existence of a trial as to which all three requirements are present. Therefore, there is a failure to comply with the statutory requirements, and it follows that the court is without power to award an additional allowance. This item was improperly granted by Special Term.

In the Baker case the question certified to this court by the Appellate Division must be answered partly in the affirmative and partly in the negative, i. e., the allowance of motion costs and a single trial fee was proper as a matter of law, but the award of an additional allowance was improper as a matter of law, and the order of the Appellate Division is modified in accordance with this opinion, without costs in this court.

In the Cheney case the order of the Appellate Division is modified in accordance with this opinion and as modified, affirmed, without costs in this court.

The orders of the Appellate Division should be modified in accordance with this opinion and as so modified affirmed, without costs. The question certified in Matter of Baker should be answered as indicated in the opinion.

Loughran, J., concurs with Finch, J.; Rippey and Conway, JJ., concur in result; Lehman, Ch. J., dissents and votes to affirm; Sears and Lewis, JJ., taking no part.

Ordered accordingly.


author: Loughran, J. Lewis, J.

text:
    National City Bank of New York, Appellant, v. Julia C. Gelfert, as Executrix of James J. Carpenter, Deceased, et al., Defendants, and George U. Hammond, as Executor of James J. Carpenter, Deceased, Respondent.

      Argued April 8,1940;
    decided October 8, 1940.

      Barney B. Fensterstock, Israel Akselrod and Theodore B. Wolf for appellant.

      Charles H. Buckley and George Link, Jr., for respondent.
   Loughran, J.

The action is one to foreclose a real property mortgage. The estate of the deceased mortgagor is liable for any deficiency which the plaintiff is entitled to recover. Our moratory deficiency judgment act is inapplicable, for it does not affect mortgages or connected agreements dated on or after July 1, 1932, and the mortgage in suit was executed on December 29,1932.

At the time of execution thereof, section 1083 of the Civil Practice Act provided that the measure of a deficiency judgment was the residue of the debt remaining unsatisfied after a sale of the mortgaged property and the application of the proceeds pursuant to the directions contained in the judgment of foreclosure and sale. So computed, the deficiency owing to the plaintiff-mortgagee, as shown by the report of the referee to sell, was $16,162.12. The plaintiff-mortgagee was the purchaser on foreclosure. It was noted in the court below that the sale price of $4,000 was not shockingly inadequate and that there was no showing of specific hope that much more would be obtained upon a resale. (257 App. Div. 465, at p. 467.) On February 2, 1939, Special Term confirmed the report of the referee and ordered that a judgment for the stated deficiency should be docketed in favor of the plaintiff-mortgagee against the estate of the deceased mortgagor.

The judgment of foreclosure and sale had been entered November 15, 1938, and the sale had taken place on December 16, 1938. Theretofore and as of April 7, 1938, section 1083 of the Civil Practice Act had been amended by chapter 510 of the Laws of 1938. The gist of the change thereby made is in the provision that the amount of a deficiency judgment is to be fixed by deducting from the debt the market value of the property as determined by the court or the sale price, whichever is higher. The 1938 amendment also provides: “ E no motion for a deficiency judgment shall be made as herein prescribed the proceeds of the sale regardless of amount shall be deemed to be in full satisfaction of the mortgage debt and no right to recover any deficiency in any action or proceeding shall exist.” This 1938 amendment we shall call the new section 1083.

On appeal by the estate of the deceased mortgagor, the Appellate Division ruled that the new section 1083 was applicable and that no motion for a deficiency judgment as therein prescribed had been made by the plaintiff-mortgagee. Accordingly the order of Special Term was modified by striking therefrom the direction for entry of a deficiency judgment and the judgment entered pursuant thereto was vacated. As appellant in this court, the plaintiff-mortgagee contends that the new section 1083, when so applied to mortgage contracts previously made, contravenes the command of the Constitution of the United States that “No State shall * * * pagg any * * * Law impairing the Obligation of Contracts.” (Art. I, § 10.)

(1) The measure of a deficiency judgment prescribed by the new section 1083 is in substance prescribed also by our moratory deficiency judgment act (Civ. Prac. Act, § 1083-a). But that act is addressed to a declared public emergency and, as we have indicated, does not apply to mortgages or connected agreements dated (as are the instruments in suit) on or after July 1, 1932. The new section 1083 does not invoke the general welfare and sets up no conditions pertinent to emergency relief. When it was enacted in 1938, the Legislature at the same session also extended the operation of our moratory deficiency judgment act until July 1, 1939. The function of that act has since been continued and is now to be effective to July 1, 1941. (See Laws of 1938, ch. 501; Laws of 1939, ch. 607; Laws of 1940, chs. 566, 567.) These circumstances make it clear to us that the new section 1083 concerns merely the private contract relationship of the parties to a real property mortgage and that as matter of fact the new section 1083 was not designed for the relief of urgent public needs. (Cf. Home Bldg. & Loan Assn. v. Blaisdell, 290 U. S. 398; Worthen Co. v. Thomas, 292 U. S. 426; Veix v. Sixth Ward Bldg. & Loan Assn., 310 U. S. 32.)

(2) On that basis, the question to be determined is whether the new section 1083 transcends the scope of the normal control over judicial remedies which the contracts clause of the Federal Constitution has left to the States. “It is well settled that while, in a general sense, the laws in force at the time a contract is made enter into its obligation, parties have no vested right in the particular remedies or modes of procedure then existing. It is true that the Legislature may not withdraw all remedies, and thus, in effect, destroy the contract; nor may it impose such new restrictions or conditions as would materially delay or embarrass the enforcement of rights under the contract according to the usual course of justice as established when the contract was made. Neither could be done without impairing the obligation of the contract. But it is equally well settled that the Legislature may modify or change existing remedies or prescribe new modes of procedure, without impairing the obligation of contracts, provided a substantial or efficacious remedy remains or is given, by means of which a party can enforce his rights under the contract.” (Oshkosh Waterworks Co. v. Oshkosh, 187 U. S. 437, 439. See the cases brought together in Home Bldg. & Loan Assn. v. Blaisdell, supra, at p. 434.)

(3) It is in order, then, next to examine the law whereby liability for a deficiency on foreclosure was regulated in this State before the new section 1083 became operative. At this point, we are pressed to give renewed consideration to the case of Monoghan v. May (242 App. Div. 64). The foreclosure sale there involved was held before our moratory mortgage legislation took effect. The court, however, judicially noticed an earlier existence of the emergency thereby declared. Upon findings that the true value of the property equalled the mortgage debt and that the mortgagee was the purchaser at a price so inadequate as to shock the conscience of the court, all liability for a deficiency was canceled, independently of statute and by dint of an avowal by the court of its “ inherent power to place hmitations upon the remedies available to a mortgagee in consonance with fundamental doctrines of equity.” Acceptance of all that was so decided obviously would not answer the question now before us, since the new section 1083 is not emergency legislation, is not confined to cases where the sale price shocks the conscience, and is applicable whether a purchaser on foreclosure is the mortgagee or is a third party.

It may be worth while, however, to detail what actually was connoted by the broad statements made by the court in the Monoghan case. In Guaranteed Title & Mortgage Co. v. Scheffres (246 App. Div. 532) the mortgage debt was $10,500, the sale price was $8,000, and the deficiency was $4,857.58. This inadequacy of price was found to have shocked the conscience of the court and the defendants were given leave to move retroactively for the entry of a judgment which would not finally award recovery of a deficiency (247 App. Div. 294). In Whorton v. Andretta (246 App. Div. 827) the mortgage debt was $14,000, the sale price was $7,000 and the deficiency was $8,507.23. A sale price can be inadequate only in its relation to the worth of the property sold. Yet in the Whorton case the same court in precisely the same period of economic stress reversed an order that the market value of the property be determined for the purpose of ascertaining the amount of a deficiency judgment, stating its reason as follows: “ We are of opinion that under the circumstances disclosed here, the purchase price was not so inadequate as to shock the conscience of the court.” Again, in Central National Bank v. Marks (243 App. Div. 526), the same court declared that the equitable relief considered in Monoghan v. May is not available to mortgagors “ possessed of independent means.”

As thus employed, the theory of Monoghan v. May seemed to us to go against the grain of settled ideas of the nature of equity. The “ conscience ” which is an element of the equitable jurisdiction is not the private opinion of an individual court, but is rather to be regarded “ as a metaphorical term, designating the common standard of civil right and expediency combined, based upon general principles and limited by established doctrines, to which the court appeals, and by which it tests the conduct and rights of suitors — a judicial and not a personal conscience.” (1 Pomeroy’s Equity Jurisprudence [4th ed.], § 57. So, 1 Spence, Equitable Jurisdiction of the Court of Chancery, pp. 413, 414; Snell, Principles of Equity [22d ed.J, p. 3.) In that view, the doctrine ” of Monoghan v. May was rejected by us when Guaranteed Title & Mortgage Co. v. Scheffres (supra) was reversed in this court. (275 N. Y. 30.) For our part, we thought better of the doctrine stated by that learned lawyer, Dillon, J., in these words: “ Creditors have rights, as well as debtors. Courts stand between the two [and] administer the law just as it is, with even-handed impartiality * * (Sloan v. Waugh, 18 Iowa, 224, 227.)

The law which the court called upon in Monoghan v. May was in that case stated as follows: “ To obtain a deficiency judgment and determine the amount thereof, it is necessary to invoke equitable power to confirm the sale had under the judgment of foreclosure. * * * No rights vest, perforce the judgment of foreclosure, in plaintiff for a deficiency judgment in any amount until plaintiff satisfies a court of equity that it would be equitable and just, as a consequence of what has occurred on the sale, to authorize the entry of a deficiency judgment.” (242 App. Div. at pp. 66, 67.) This statement did not accurately represent the New York law which (prior to the enactment of our moratory mortgage legislation) regulated the general right to recovery of a deficiency judgment in an action to foreclose a real property mortgage.

On the contrary, our previously existing statutory law of foreclosure had been interpreted in this manner: Liability for a deficiency was to be finally determined by the judgment of foreclosure and sale. The subsequent docketing of a deficiency judgment was a merely clerical act. Execution fer a deficiency was issuable before confirmation of the report of the referee to sell or before a deficiency judgment was docketed, unless the court directed a resale in order to relieve a party from the consequences of unfairness, fraud, surprise or mistake. The deficiency was to be ascertained by a sale of the mortgaged premises and not by the estimates of witnesses or other less satisfactory evidence. (Civ. Prac. Act, former § 1083; Morris v. Morange, 38 N. Y. 172; Wager v. Link, 134 N. Y. 122; Frank v. Davis, 135 N. Y. 275; Feiber Realty Corp. v. Abel, 265 N. Y. 94; Emigrant Industrial Sav. Bank v. Van Bokkelen, 269 N. Y. 110; Bondy v. Aronson & List Realties, Inc., 227 App. Div. 136; Housman v. Wright, 50 App. Div. 606. See Thomas on The Law of Mortgages [2d ed.], § 832.) This procedure always meant that on foreclosure the mortgagor was entitled to credit only for the net proceeds of sale realized by the mortgagee after the deduction of liens for taxes, etc., with resultant liability to the mortgagor for the deficiency (Marshall v. Davies, 78 N. Y. 414, 422) — a rule that was in keeping with the generally accepted proposition that a mortgagee owed no duty to his mortgagor to protect the equity of redemption but might deal with the mortgagor in respect of the mortgaged premises upon the same footing as any other person. (See Ten Eyck v. Craig, 62 N. Y. 406, 421; Louisville Joint Stock Land Bank v. Radford, 295 U. S. 555, 579, 580; Rules Civ. Prac. rule 259; Thomas on The Law of Mortgages [2d ed.], §§ 972, 988.) It was this system of foreclosure that entered into the engagement of "the present parties and created and defined the legal and equitable obligations of their contract. (Bronson v. Kinzie, 1 How. [U. S.] 311.)

(4) This system of foreclosure has been markedly changed by the new section 1083. Under that section a mortgagee must on foreclosure bid in the property at a price that shall at least equal the market value as that value may thereafter be determined by the court or must go without any satisfaction of so much of the debt as equals the difference between the value as so determined and a lower price paid on a sale to a third party. These substantial alterations of the former statutory status of mortgagees are not to be temporary. They are not conditioned upon any equitable factor and leave no room for the play of any equitable consideration. They benefit every mortgagor irrespective of the character or amount of his investment and they burden every mortgagee no matter what his necessities. They reach indeed to all situations where for any reason whatever the price paid by any purchaser on a valid foreclosure sale falls short of the market value of the property as subsequently determined by the court.

In the face of all this, we do not see how a retroactive operation of the new section 1083 can be reconciled with the principle that the laws which prescribe the mode of enforcing a contract, which are in existence when it is made, are so far a part of the contract that no changes in these laws which seriously interfere with that enforcement are valid, because they impair its obligation within the meaning of the Constitution of the United States.” (Barnitz v. Beverly, 163 U. S. 118, 122.) Consequently we conclude that as to mortgage contracts previously made (as are the contracts in suit) the new section 1083 is void. (See Home Bldg. & Loan Assn. v. Blaisdell, supra, at pp. 431-434; New York Life Ins. Co. v. Guttag Corp., 265 N. Y. 292, 296.)

(5) The foregoing presupposed the absence of any remedy substantially coextensive with that afforded by the former section 1083. We believe no such remedy exists.

Apart from our moratory mortgage legislation, a mortgagee of real property may still recover judgment for the mortgage debt as if no mortgage secured it. This remedy of an action at law for the debt cannot, we think, be deemed to be a fair equivalent of the remedy afforded by the former section 1083, inasmuch as the judgment debtor’s equity of redemption cannot be sold under an execution issued upon a judgment for the mortgage debt or any part thereof. (Civ. Prac. Act, § 710.)

From the beginning our statutory system of foreclosure has prohibited a second action to recover a deficiency resulting on a foreclosure sale. (Civ. Prac. Act, § 1078.) Though power to relax that prohibition was conferred upon the court, the general rule was against the exercise thereof and it was settled that the burden of such a second suit was not to be laid upon a party who could have been made a defendant in the foreclosure action unless special circumstances were shown which manifestly required that course. (Equitable Life Ins. Society v. Stevens, 63 N. Y. 341; Scofield v. Doscher, 72 N. Y. 491; Vanderbilt v. Schreyer, 91 N. Y. 392; Morrison v. Slater, 128 App. Div. 467; Darmstadt v. Manson, 144 App. Div. 249; Stehl v. Uris, 210 App. Div. 444.) Leave to bring so restricted a second suit is not to be granted in proceedings under our moratory deficiency judgment act. (Civ. Prac. Act, § 1083-a; Honeyman v. Hanan, 275 N. Y. 382, 392.) Even if we assume that the new section 1083 has not likewise superseded section 1078 of the Civil Practice Act, in our judgment the limited judicial discretion permitted by section 1078 could not be made an effective instrumentality for the replenishment of the rights which section 1083 has now taken away from mortgagees:

(6) The new section 1083 was enacted upon the recommendation of a joint legislative committee whose report said: “ The present emergency Deficiency Judgment Law can no doubt be made permanent if the Legislature so desires, under the authority of the decision of the United States Supreme Court in the case of Richmond Mortgage & Loan Corporation v. Wachovia Bank & Trust Co., et al., Executors, 300 U. S. 124.” (N. Y. Leg. Doc. [1938] No. 58, p. 35.) In the case thus cited, the court upheld a North Carolina statute providing that when the holder of an obligation secured by real estate causes a trustee’s sale of the property at which such holder becomes the purchaser for less than the amount of the debt and thereafter such holder brings an action for a deficiency, the defendant may show, by way of defense and setoff, that the property sold was fairly worth the amount of the debt or that the amount bid was substantially less than the true value of the property and thereby defeat any deficiency judgment against him in whole- or in part. This North Carolina statute has no application if the purchaser at the trustee’s sale be other than the mortgagee. It affects only foreclosures under powers of sale and does not apply to foreclosure sales made pursuant to an order or decree of the court. The new section 1083 contains no such limitations and, as we hold, cannot be sustained (as was this North Carolina statute) on the principle that the obligation of a contract is not impaired by a statute Hmiting the remedy, if a remedy adequate for enforcing the obligation remains or is substituted.

(7) In short, our conclusion is that section 1083 of the Civil Practice Act, as amended by chapter 510 of the Laws of 1938, cannot be constitutionally applied to mortgage contracts previously made and that as to such contracts the former section 1083 is in force and effect.

The order of the Appellate Division should, therefore, be reversed and that of the Special Term affirmed and its judgment reinstated, without costs.

Lewis, J.

(dissenting). Our problem is to determine whether section 1083 of the Civil Practice Act, as amended by chapter 510 of the Laws of 1938 (effective April 7, 1938), may be constitutionally applied to proceedings upon the foreclosure of a mortgage executed prior to April 7, 1938.

From time to time Hammond & Carpenter Corporation had secured commercial loans from the plaintiff-appellant, to which it will be convenient to refer as the bank. The payment of those loans was guaranteed by George U. Hammond. and James J. Carpenter, now deceased, whose executors are defendants in this action. As security for his obligation as such guarantor, James J. Carpenter executed and delivered to the bank on December 29, 1932, a mortgage which became the subject of the present foreclosure action when, in 1937, Hammond & Carpenter Corporation failed to pay certain of its loans. By the judgment of foreclosure and sale herein, entered November 15, 1938, the amount due the bank was $18,401.25. At the foreclosure sale which followed on December 16, 1938, the mortgaged premises were purchased by the bank’s nominee for $4,000. On January 23, 1939, when the bank applied at Special Term for an order confirming the referee’s report of sale and for a deficiency judgment in the amount of $16,162.12 against the estate of James J. Carpenter, deceased, the respondent Hammond, as executor, applied by cross-motion, in connection with the bank’s application for a deficiency judgment, for an order fixing the real value of the premises foreclosed upon the ground that the sale price was wholly inequitable * * * ” and that it would be unconscionable to permit the bank to enter a deficiency judgment herein according to its demand. In support of his cross-motion, and in opposition to the bank’s motion to confirm the referee’s report and for a deficiency judgment, the respondent executor submitted affidavits in Which the mortgaged premises were appraised at $11,000. In opposition to the respondent’s cross-motion the bank asserted that Special Term was without power to grant the relief sought and submitted an affidavit by a real estate expert appraising the property, on the basis of its income, at $6,500. Thereupon Special Term denied the respondent’s cross-motion, granted the bank’s application to confirm the referee’s report of sale and directed the entry of a deficiency judgment.

Upon appeal to the Appellate Division the order at Special Term was modified by striking therefrom the provision granting a deficiency judgment to the bank and directing that such judgment be vacated. The Appellate Division ruled that section 1083 of the Civil Practice Act, as amended by chapter 510 of the Laws of 1938, impaired no substantial rights of the mortgagee and, as affecting the remedy of the bank as mortgagee in this foreclosure action, that section 1083 as amended is constitutional and that the bank had made no application at Special Term for a deficiency judgment as required by section 1083.

When the mortgage here in foreclosure was executed on December 29, 1932, and thereafter in the year 1937 when the moneys secured thereby were advanced by the bank, section 1083 of the Civil Practice Act read as follows:

§ 1083. Judgment for deficiency. If a person who is liable to the plaintiff for the payment of the debt secured by the mortgage is made a defendant in the action, and has appeared or has been personally served with the summons, the final judgment may award payment by him of the residue of the debt remaining unsatisfied, after a sale of the mortgaged property, and the application of the proceeds, pursuant to the directions contained therein.”

On April 7, 1938 — prior to the entry of the deficiency judgment herein — chapter 510 of the Laws of 1938 became effective, amending section 1083 by providing that upon any application for a deficiency judgment in a foreclosure action the mortgagee was required to credit on the mortgage debt either the price obtained for the mortgaged premises at the foreclosure sale, as formerly required by section 1083, or the amount which the court might determine, upon affidavits or otherwise, to be the fair and reasonable market value of the mortgaged premises, whichever is higher. The fact is also stressed that, unlike section 1083-a of the Civil Practice Act and kindred moratory legislation which is ■ limited to the period of emergency declared by the Legislature, the 1938 amendment to section 1083 is permanent in character.

The bank, as appellant before us, argues that under the contract provision of the Federal Constitution, the new provisions of section 1083 may not be applied to the mortgage here in foreclosure which was executed before the amendment became effective. In support of its position the bank invokes the principle that laws affecting either the enforcement or construction of a contract and subsisting at the time and place of its making and the place of its performance, enter into and form a part of the contract itself. (Farmers & Merchants Bank v. Federal Reserve Bank, 262 U. S. 649, 660; New York Life Ins. Co. v. Guttag Corp., 265 N. Y. 292, 296.) With this rule as a premise the bank challenges, as violative of section 10 of article I of the Federal Constitution, the 1938 amendment to section 1083 which, it is said, affects adversely the bank’s rights by changing the remedy by foreclosure which the statute formerly made available to it as a mortgagee — the principal change being that in arriving at the amount of a deficiency judgment there shall be credited upon the mortgage debt either the market value of the mortgaged property, as determined by the court, or the price obtained therefor at the foreclosure sale, whichever is higher. The vice of the new statute is said to be that it changes the medium of payment of the debt which was agreed upon by the parties to the mortgage prior to the amendment of section 1083 and in practical effect compels the bank as mortgagee to accept in payment of the debt a parcel of real property instead of lawful money of the United States.

I have reached the conclusion that the statute thus challenged, when applied to the case at bar, does not impair the contract rights possessed by the bank when the mortgage here in foreclosure was executed. That conclusion has been influenced by an examination of the change in remedies for the collection of a mortgage debt made available to a mortgagee at common law and under statutes prior to the amendment here in question.

Prior to the enactment of the statute from which section 1083 was derived a deficiency judgment could not be had in a foreclosure action. If the proceeds from a foreclosure sale failed to extinguish the mortgage debt and the mortgagee desired to collect any balance due, his only recourse was to an action at law. Finding burdensome the necessity of bringing two actions to collect a mortgage debt, the Legislature added to the statutory procedure governing foreclosure the permissive measure that a personal judgment for a deficiency might be given in a foreclosure action against any party liable for the mortgage debt. (2 Rev. Stat. [1st ed.] p. 191, §§ 151, 152, 154.) The statute then enacted finally found its place, by transposition and amendment, in the Civil Practice Act as section 1083. (Throop’s Code, notes to §§ 1628 and 1630; Frank v. Davis, 135 N. Y. 275, 277, 278; Reichert v. Stilwell, 172 N. Y. 83, 88; Jamaica Savings Bank v. M. S. Investing Co., 274 N. Y. 215, 218-220.) In tracing the history of this statute it is important to our present inquiry to note the language of Chief Judge Cullen writing for this court in 1910 in Rutherfurd Realty Co. v. Cook (198 N. Y. 29, 33): Before the enactment of those statutes [2 R. S. §§ 151-154] a mortgagee to collect a deficiency was compelled to resort to an action at law after the sale under a decree in equity. This course may still be pursued, though leave of the court is necessary for the institution of the second action.” (Emphasis supplied.)

It is thus seen that the Legislature, while favoring and making provision for the collection of the mortgage debt by one action, did not see fit to abolish the action at common law which remains today as a remedy available to the mortgagee under certain conditions. I find nothing in the 1938 amendment to section 1083 which abolishes the separate common-law action where the mortgage was executed after July 1, 1932. The policy of the Legislature adopted in 1830 finds expression in the present statute, that a deficiency judgment shall be sought in the action for foreclosure. However, if a deficiency judgment is not sought in the foreclosure action the proceeds of the sale regardless of amount shall be deemed to be in full satisfaction of the mortgage debt and no right to recover any deficiency in any action or proceeding shall exist.” This provision indicates that a “ right to recover any deficiency ” in some other action or proceeding still exists under some circumstances. One of those circumstances is present when the person liable to the plaintiff for the payment of the mortgage debt is not “ made a defendant in the action ” and has not appeared or * * * been personally served with the summons.” (§ 1083.) Another circumstance which, with leave of the court (Civ. Prac. Act, § 1078), permits a mortgagee to bring a separate action at law, is present when the person liable for the mortgage debt is joined as a defendant and personally served but there remains a difference between the amount received at the foreclosure sale and the determined value of the property.

Stated otherwise, the change in the law effected by the 1938 amendment does not deprive the mortgagee of the right to receive the full amount of the mortgage debt in the same medium of payment as was afforded to him prior to that amendment. It merely restricts the method-previously provided. Then he could demand a deficiency judgment in the foreclosure action or, failing so to demand, there remained for him the right to sue at law subject to leave of the court. (Rutherfurd Realty Co. v. Cook, supra, p. 33.) There being no specific provision in section 1083 as amended extinguishing the action at law, the presumption is that such a right of action remains conditioned upon the provisions of section 1078 and provided the mortgagee has demanded a deficiency judgment in the foreclosure action. The separate action at law for a deficiency is a common-law right. The court must construe strictly a statute which is susceptible of an interpretation in derogation of the common law. I do not think the Legislature intended to destroy the common-law right of action to recover the full deficiency from the party hable who is joined as a defendant and served, and still preserve the right to recover the full deficiency against one who, either because he is without the State or for some other reason, is not joined as a party defendant and served. By the 1938 amendment to section 1083 the Legislature has said that, where a person hable for the mortgage debt is joined as a defendant and is personally served, the mortgagee must seek a deficiency judgment to avoid (1) an adjudication that the proceeds of the foreclosure sale of whatever amount shall satisfy the mortgage, and (2) forfeiting a right to recover any deficiency in another action. If a deficiency judgment is asked it may be granted in that amount only which equals the difference between the determined value of the mortgaged property and the debt, or the difference between the sale price and the debt, whichever difference is smaller. If there remains a portion of the debt unsatisfied between the amount received at the sale and the determined value, the mortgagee may bring an action at law on the bond, subject to leave being granted by the court under the provisions of section 1078 of the Civil Practice Act. (Rutherfurd Realty Co. v. Cook, supra, p. 33.) The constitutionality of section 1078 of the Civil Practice Act has never been challenged. (Honeyman v. Hanan, 275 N. Y. 382, 392.)

The 1938 amendment to section 1083 does not accomplish as to mortgages executed after July 1, 1932, the result intended by section 1083-a as to mortgages executed prior to that date. Section 1083-a provides that as to mortgages executed prior to 1932: “No judgment shall be granted for any residue of the debt remaining unsatisfied * * * except as herein provided.” That provision can only mean, as was pointed out in Honeyman v. Hanan (supra, p. 392), that the statute was “ * * * intended to provide an exclusive procedure for the entry of a judgment for any residue of a debt secured by mortgage after sale of the mortgaged premises.” Its prohibition applied whether a deficiency was demanded in the foreclosure suit or sought to be recovered by a separate action at law. No such exclusive provision governs procedure under section 1083 in reference to mortgages executed after 1932, as was the mortgage now before us. True it is that the procedure outlined in the 1938 amendment to section 1083 for securing a judgment for any amount of the mortgage debt remaining unsatisfied after the sale of the mortgaged property, is not the same as that in effect at the time the mortgage here in suit was executed. But the mortgagee still retains the right to recover the full deficiency on a mortgage executed after July 1, 1932, where the person hable was not joined as a defendant and personally served. The mortgagee also retains the right to recover in a separate action, subject to section 1078 of the Civil Practice Act, the difference between the amount recovered in the foreclosure action and the amount of the mortgage debt, provided in the foreclosure action he has joined the person liable as a defendant and served him personally, and has asked for a deficiency judgment pursuant to the amended section 1083.

The difference in the scope and purpose of sections 1083 and 1083-a is indicated by the opening sentence of each. Section 1083 states that the procedure thereby provided for determining the amount of the deficiency shall apply only “ If a person who is liable to the plaintiff for the payment of the debt secured by the mortgage is made a defendant in the action, and has appeared or has been personally served with the summons * * *; ” whereas section 1083-a provides that “No judgment shall be granted for any residue of the debt remaining unsatisfied * * * ” except as therein provided. Admitting that section 1083-a provides an exclusive method of obtaining a deficiency judgment on the foreclosure of mortgages dated prior to July 1, 1932, it is apparent that section 1083 does not apply if the person hable to the plaintiff for the payment of the mortgage debt is not made a defendant in the action- or has not appeared or has not been personally served with the summons. In such circumstances section 1083 does not provide the exclusive method for obtaining a deficiency judgment. If the statute is not to be so interpreted but instead is to be understood as providing the exclusive method of obtaining a deficiency judgment where, as in the present case, the party hable is joined and has appeared, then the statute is unconstitutional because it provides for an unreasonable classification of parties defendant and unreasonably discriminates against a party plaintiff who chooses to join as a defendant the party who is liable for the payment of the mortgage debt.

There is no constitutional guaranty that a mortgagee shall always have the right to secure a judgment for the full amount in one action. We have seen that for many years prior to the enactment of section 1083 a mortgagee was adequately protected by procedure which then allowed a separate action at law to collect a deficiency. The mortgagee still retains that right and in addition the right to recover a part or all of the deficiency in the foreclosure action.

Finally I am unable to agree with the decision of the Appellate Division that the bank’s motion for leave to enter a deficiency judgment was not a sufficient compliance with section 1083 as amended by chapter 510 of the Laws of 1938, to constitute an application thereunder for such a judgment.

I, therefore, dissent from the view of a majority of the court and favor a modification of the order of the Appellate Division by providing for the remission of the case to Special Term with directions to proceed in accord with the provisions of section 1083 of the Civil Practice Act, as amended by chapter 510 of the Laws of 1938, to determine the fair and reasonable market value of the mortgaged premises as a basis for- any deficiency judgment which the application of that statute may warrant, and as modified affirmed, without costs.

Lehman, Ch. J., Finch, Rippey, Sears and Conway, JJ., concur with Loughran, J.; Lewis, J., dissents in opinion.

Ordered accordingly.


text:
    Nathan Rubin, Appellant and Respondent, v. Dairymen’s League Co-operative Association, Inc., Respondent and Appellant.

      Argued May 28,1940;
    decided October 8, 1940.

      Lawrence E. Brinn and Jacob Aks for plaintiff, appellant and respondent.

      John F. X. Finn, Lazarus I. Levine, Gerald G. Hogan and Seward A. Miller for defendant, respondent and appellant.
   Lewis, J.

The action is in equity. The plaintiff demands of the defendant an accounting for commissions alleged to have been earned under an oral contract by which the plaintiff agreed to develop certain territory as a market for the defendant’s milk products in consideration for which the defendant was to designate him as its exclusive distributing agent within such territory and pay him as commissions one-half cent for each quart of milk and one and one-quarter cents for each quart of cream sold therein.

Cross-appeals have been taken by leave of the Appellate Division from its order affirming an interlocutory judgment which directed the defendant to account for sales made by the plaintiff during the contract period which has been decreed to have terminated on April 9, 1935. Having denied the existence of the oral contract pleaded by the plaintiff, the defendant challenges upon this appeal so much of the order affirming the interlocutory judgment as directs it to account for commissions upon sales made by the plaintiff prior to April 9, 1935. The appeal by the plaintiff requires us to review only that part of the order which denies him an accounting by the defendant for commissions on sales made subsequent to that date.

In granting leave to appeal the Appellate Division has certified for each appellant a separate set of questions. For the plaintiff the questions certified are:

“ 1. Where a verbal agreement was entered into between the plaintiff and the defendant whereby the plaintiff agreed to develop the sale of the defendant’s products in the Towns of Thompson, Fallsburg and Bethel in the County of Sullivan and the defendant, granted to the plaintiff in consideration thereof the exclusive agency for the sale of such products in such towns and agreed to pay to the plaintiff in connection therewith a commission of one-half cent a quart for all milk sold and one and one-quarter cent per quart for all cream so sold and such agreement was to continue in effect so long as defendant sold its products in such territory and the plaintiff fully performed said agreement on his part, did the defendant so long as it continued to sell its products in the said territory developed by the plaintiff, have the right to terminate the contract on April 9, 1935 and not allow plaintiff commissions beyond that date?

“ 2. Was the agreement terminated by the defendant on April 9, 1935 by virtue of the letter sent that date, Defendant’s Exhibit I?

“ 3. Does the plaintiff have the right to an accounting up to the date of the trial? ”

For the defendant the following questions are certified:

“1. Is there evidence in the record to sustain the finding that the contract set forth in Question No. 1 as certified for the plaintiff, was entered into?

“ 2. If there is evidence in the record to sustain such a finding, is the contract legal and enforceable? ”

Upon the trial a jury was impaneled by Special Term to render an advisory verdict upon the issue of fact whether the oral contract alleged by the plaintiff was made. Without analyzing the vast amount of evidence presented upon that issue, it is enough for present purposes to state that we find in the record sufficient evidence to justify the adoption by Special Term of the jury’s finding that the contract was made substantially as pleaded by the plaintiff, subject, however, to the qualifying fact set forth in the additional finding made by Special Term that such contract was terminated on April 9, 1935.

We are told in support of the defendant’s position that the plaintiff’s alleged promise “ to open up and develop ” the territory within the townships of Thompson, Fallsburg and Bethel in Sullivan county as a market for the defendant’s milk products was so illusory and indefinite as to be unenforceable. It is also said that, if an exchange did occur of a promise by the defendant “ to pay ” certain commissions for a promise by the plaintiff “ to open up and develop ” certain territory, such an exchange of promises was of no legal consequence because it was “ lacking in mutuality.” Such an argument disregards the rule that Even when the obligation of a unilateral promise is suspended for want of mutuality at its inception, still, upon performance by the promisee a consideration arises ' which relates back to the making of the promise, and it becomes obligatory.’ ” (Grossman v. Schenker, 206 N. Y. 466, 468.)

The record proof is not sufficient to warrant our conclusion as matter of law that there was such an exchange of promises between the parties as would support a contract by which the plaintiff agreed to open up and develop ” the prescribed territory and therein to act as defendant’s exclusive agent for a definite term in return for commissions to be paid by the defendant upon sales thus made. Upon the question of duration of the arrangement between the parties the courts below have ruled, upon evidence which we regard as sufficient, that the contract was unilateral as to time.” We treat that phrase as referring to an agency cancelable at will — an arrangement not unlike that which was considered in Winslow v. Mayo (123 App. Div. 758; affd., 195 N. Y. 551), of which it was said (p. 762): “ * * * the agency was one at will, and might be terminated by either party upon the payment by the defendant of any commissions which had been earned up to the time that notice of termination was given.” (See, also, Martin v. New York Life Ins. Co., 148 N. Y. 117, 121; Willcox & Gibbs Sewing Machine Co. v. Ewing, 141 U. S. 627; Schnerb v. Caterpillar Tractor Co., 43 Fed. Rep. [2d] 920, 921; certiorari denied, 282 U. S. 898; 89 A. L. R. 252, 258.)

We cannot go behind the finding of fact by Special Term that the agreement was “ unilateral as to time and could be terminated by either party at any time.” From this fact it follows that the defendant could not have required the plaintiff to proceed to open up and develop ” the prescribed territory. There is an abundance of proof, however, that, after preliminary conferences between the plaintiff and representatives of the defendant which gave rise to the agreement which Special Term has found existed, the plaintiff made persistent efforts to create in the three townships a market for the defendant’s products. Those efforts^ by the plaintiff, which were known to the defendant and received its co-operation, contributed to a marked increase over a period of years in the defendant’s local sales. They constituted performance by the plaintiff in response to the defendant’s promise and thus gave rise to a consideration which relates back to the time of, and makes obligatory, the defendant’s original promise. (Grossman v. Schenker, supra, p. 468.) There is eminent authority for the statement that “ * * * a promise that was originally too indefinite, may by performance become definite and as the other party to the bargain must be regarded as continuously assenting to receive such performance in return for his own promise, a valid unilateral contract arises on receipt of such performance.” (1 Williston on The Law of Contracts [Rev. ed.], p. 366, § 106.)

We may not consider the grievance asserted by the defendant that by the present action the plaintiff claims commissions, based upon his sale of defendant’s milk products, in excess of certain retail profits, price differentials and rebates which he has received from the defendant during the period of years terminating April 9, 1935, during which time — as it has been found — the plaintiff performed his contractual duty to the defendant. In that connection, however, it may be said that “ If a person chooses to make an extravagant promise for an inadequate consideration it is his own affair.’ [8 Holdsworth, History of English Law, p. 17.] ” (Allegheny College v. National Chautauqua County Bank, 246 N. Y. 369, 377.)

We are thus led to conclude that upon performance by the plaintiff up to April 9, 1935, the defendant became obligated to pay commissions earned by the plaintiff to that date through his efforts.

Passing to a consideration of the ruling at Special Term as to the date upon which the contract was terminated, it appears from the record that on April 4, 1935, a prearranged meeting was held at the defendant’s office in New York city, attended by the plaintiff and several representatives of the defendant, for the purpose of conference upon plaintiff’s claim for commissions. Thereafter a letter dated April 9, 1935, was received by the plaintiff from the defendant which, after stating — without prejudice to its rights in the matter — a basis which had been proposed for the settlement of the controversy, closed with the following paragraph: We believe you gathered from the conference of April 4th and that you should have realized from previous conferences that we do not recognize any right on your part to such commissions, but if there is any doubt in your mind on this point, please accept this as our formal advice to you to such effect and govern yourself accordingly.”

On the date of that letter and over a period of years then past, the arrangement existing between the parties had been the subject of performance by both parties. Each had benefited by acts, within their respective obligations, performed by the other. But the obligation assumed by the plaintiff did not require of him that he continue longer than he desired to supply the facilities necessary to market the defendant’s milk products within the prescribed territory and to exert his efforts to increase their sales therein. He could withdraw at any time as the defendant’s distributor and cease his efforts in the defendant’s behalf. (Winslow v. Mayo, supra.) Nor did the fact that his efforts had resulted in developing in the three townships a market beneficial to the defendant’s interests insure to the plaintiff a continuance of performance by the defendant while the plaintiff’s efforts continued. We agree with the ruling at Special Term that in the circumstances either party had the right to terminate the contract. The defendant did so on April 9, 1935, by the letter quoted above.

But plaintiff asserts that his acceptance of an exclusive agency bound him to a continuing duty to develop the territory, and that, therefore, the defendant had no right to cancel the arrangement between them. (Wood v. Duff-Gordon, 222 N. Y. 88.) Whether the plaintiff did assume such a duty is not for this court to determine. That item of the alleged contract was the subject of proof. The arrangements between the parties were oral. Upon ample evidence the courts below have concluded that the plaintiff assumed no such duty. In any event, plaintiff is in no position to urge in this court the failure of defendant to perform after April 9, 1935, in view of the finding of fact by Special Term that there had been no performance by the plaintiff after that date under the contract which he alleges.

Upon the appeal of the plaintiff, the order should be affirmed, without costs. Of the three questions certified for the plaintiff the first should not be answered; the second should be answered in the affirmative; the third should be answered in the negative. The two questions certified for the defendant by the Appellate Division should not be answered. We leave unanswered three of the questions mentioned above upon the ground that answers thereto will not determine the correctness of the decision here for review. It follows that the plaintiff’s motion to dismiss the defendant’s appeal should be granted, without costs, on the ground that the questions certified are not decisive, and the defendant’s motion to dismiss the plaintiff’s appeal should be denied, without costs. (Matter of Teller, 223 N. Y. 565; Turner v. Edison Storage Battery Co., 248 N. Y. 73, 75; and see Cohen, Powers of New York Court of Appeals, p. 233.)

Loughran, Finch, Rippey and Conway, JJ., concur; Lehman, Ch. J., and Sears, J., vote to answer all questions.

Ordered accordingly. (See 284 N. Y. 816.)