text:
    New Amsterdam Casualty Company, Respondent, v. National Union Fire Insurance Co. of Pittsburgh, Pa., Appellant.
    (Argued January 18, 1935;
    decided February 26, 1935.)

      Joseph Thurlow Weed, Bert Cotton, Clarence E. Mellen, Ellis A. Bates, Ellis J. Bisgyer and Norman S. Rein for appellant.
    A sublease which does not include the entire premises covered by the main lease, even though it is for the entire term, is not an assignment. (Gillette Bros., Inc., v. Aristocrat Restaurant, Inc., 239 N. Y. 87; Herzig v. Blumenkrohn, 122 App. Div. 756; Prescott v. DeForest, 16 Johns. 159; Woodhull v. Rosenthal, 61 N. Y. 382; Dreyfuss v. Phillips, 121 N. Y. Supp. 378; Midway Hotel Co. v. Belleclaire Syndicate, Inc., 138 Misc. Rep. 401; Collins v. Hasbrouck, 56 N. Y. 157.) The agreement between the original lessor and the defendant, when read together with the terms of the plaintiff’s consent thereto, indicates that the transaction resulted in a sublease and not an assignment. (Leibowitz v. Bickford’s Lunch System, 241 N. Y. 489.)

      Hyman Grill and Albert J. Hiers for respondent.
    The defendant is liable to the plaintiff as assignee pro tanto on the basis of the proportionate rent, or on the basis of the rent reserved in the lease to the defendant. (Dreyfuss v. Phillips, 121 N. Y. Supp. 378; Church v. Seeley, 39 Hun, 269; 110 N. Y. 457; Woodhull v. Rosenthal, 61 N. Y. 382; Prescott v. DeForest, 16 Johns. 159; Childs v. Clark, 3 Barb. Ch. 52; Van Rensselaer v. Jones, 2 Barb. 643; Van Rensselaer v. Bradley, 3 Den. 135; Van Rensselaer v. Gallup, 5 Den. 454; Van Rensselaer v. Gifford, 24 Barb. 349; Van Rensselaer v. Bonesteel, 24 Barb. 365; Sheridan v. Doherty, 106 Wash. 561; Barnes v. Standard Oil Co., 167 Wash. 609; Hogg v. Reynolds, 61 Neb. 758; Babcock v. Scoville, 56 Ill. 461; Hollywood v.
      First Parish in Brockton, 192 Mass. 269; Dunlop v. Bullard, 131 Mass. 161; McNeil v. Kendall, 128 Mass. 245; Waterville v. Kelleher, 127 Me. 32; Ellis v. Bradbury, 75 Cal. 234.)
   Hubbs, J.

The respondent, owner of a building, leased a part of the thirteenth floor and a part of the first floor to the Federal Surety Company, at a fixed annual rental for a term of five years ending on the 1st day of April, 1934. Thereafter, the Federal Surety Company executed, in form, a sublease of a part of the thirteenth floor to the appellant for the balance of the term specified in the original lease. Except for the differences as to space, amount of rent and parties, the original lease and the instrument executed between Federal, the original lessee, and appellant are identical in form. Appellant went into possession under its agreement with the Federal and continued in possession of a part of the thirteenth floor until the Federal became insolvent and a receiver was appointed.

It is conceded that the insolvency proceedings under the laws of the State of Iowa canceled all contracts of the Federal, including the lease between respondent and Federal. Shortly after the appointment of the receiver, the appellant vacated the thirteenth floor and turned the key over to the agent of the receiver. Respondent commenced this action in the Supreme Court to recover from the appellant several months’ rent due under its agreement with the Federal.

The Trial Term, in which this action was tried without a jury, filed a written opinion (151 Misc. Rep. 894), findings of fact and conclusions of law having been waived, in which opinion it was found that the agreement between the Federal and the appellant constituted an assignment pro tonto of the original lease and not a sublease; also that it had been established that the rent agreed to be paid by appellant for the space occupied by it was fair and equitable in proportion to the rent agreed to be paid by the Federal under the original lease of the premises leased to it by the respondent. The court directed a verdict for the respondent against the appellant for the amount demanded in the complaint. The judgment of the Trial Term has been unanimously affirmed by the Appellate Division. (241 App. Div. 813.)

The primary question with which we are concerned on this appeal is whether a lessee by transferring a portion of the premises which he holds under an original lease to a third party for the entire balance of his term thereby makes an assignment pro tanto of the original lease or a sublease. It is conceded that this court has never directly passed upon this question in an action for the recovery of rent between an original lessor and an assignee of a lessee of a portion of the premises covered by the original lease. The question has been passed upon in actions where recovery was sought otherwise than on the covenant to pay rent.

In Woodhull v. Rosenthal (61 N. Y. 382) plaintiff was the assignee of the lessee of a portion of premises which the owner had leased to one Kelly. Kelly assigned his lease to the defendants, who were in actual possession of the premises leased by Kelly to plaintiff’s assignor. The plaintiff brought an action in ejectment against defendants, who set up as a defense that plaintiff was estopped by his conduct from claiming his interest. This defense was good only if there existed the relationship of landlord and tenant between the plaintiff and the defendants. If the lease which plaintiff held was a sublease then such relationship existed. If he was an assignee pro tanto, the relationship did not exist. The court held that there was no relationship of landlord and tenant between the plaintiff and the defendants, saying that plaintiff was not a sublessee but an assignee of a portion of the premises. The court said: The owner of the lease of the lot in controversy made over to the plaintiff’s assignor his entire interest in the lease, so far as the locus in quo was concerned. It was not a sublease, but an assignment of all the lessee’s interest in a part of the premises. If a lessee has two.houses embraced in one lease at an entire rent, and sells all his interest in one of the houses, this is an assignment pro tanto, and not a subletting. It is immaterial what form of instrument is used, whether it purports to be an assignment or a new lease. The essential distinction between an assignment and a sublease is simply this: If a lessee, by any instrument whatever, whether reserving conditions or not, parts with his entire interest, he has made a complete assignment; if he has transferred his entire interest in a part of the premises, he has made an assignment pro tanto ” (p. 391).

The question has been considered frequently in various types of actions in the lower courts. In Dreyfuss v. Phillips (121 N. Y. Supp. 378, not officially reported) the defendant, an assignee of a portion of the demised premises, was sued by his assignor for rent. He had paid the original landlord and the defense of payment to the original landlord was sustained. The court said: This was an assignment pro tanto as between them [plaintiffs] and the original landlord and gave the latter a right of action against the assignee for rent.”

In Church v. Seeley (39 Hun, 269; affd., 110 N. Y. 457) plaintiff was the owner of the rents reserved in a lease and had recovered in ejectment for non-payment of rent of all the land included in the lease except ten acres. He brought a second action to recover the rent for the remaining ten acres. The referee found that there was due on the ten acres $350. Plaintiff appealed and insisted that the referee should have found as due the amount payable on the lot of which the ten acres was a part. The court .said: “ The defendant was not a party to the leases. He is only an assignee of part of the land. His personal liability is to be apportioned according to the value of his land ” (p. 274).

That limited liability was found to exist, however, in favor of the owner of the rents of the entire parcel, whose position corresponded to that of the original lessor.

In Prescott v. DeForest (16 Johns. 159) the question involved was whether a purchaser at a public sale could obtain good title. To uphold the purchaser’s title, the court held that the plaintiff was an assignee pro tanto rather than an under-tenant.

In Van Rensselaer v. Jones (2 Barb. 643) the original landlord brought an action against the assignee of a portion of the demised premises to recover rent on the entire premises. The court ruled that the burden was upon the defendant to deny his liability for the entire rent and that denial would create the issue of what rent he would be hable for, thus recognizing the liability of the assignee to the original landlord. To the same effect are Van Rensselaer v. Bradley (3 Den. 135); Van Rensselaer's Executors v. Gallup (5 Den. 454); Van Rensselaer v. Gifford (24 Barb. 349); Van Rensselaer v. Bonesteel (24 Barb. 365).

The same rule is laid down by the English cases (18 Halsbury’s Laws of England, p. 590, § 1129) and is stated by text writers. It is the law in most of the States. (Cf. 36 C. J. p. 376, and cases cited.)

The distinction between an assignment and a subtenancy is based upon the principle of a two-fold privity existing between a landlord and tenant. A privity of contract and a privity of estate. The first rests upon the terms of the agreement between the parties — the second upon the interest in the real property leased. If the lessee transfers his entire interest in the real property covered by the lease or of part thereof, to a third party who enters into possession, such transfer constitutes an assignment of the lease and the assignee becomes directly hable to the original landlord as the transfer creates a privity of estate between the landlord and the transferee of the lease or of a part thereof. In order to constitute an assignment, the transfer from the original lessee must convey the entire interest of the lessee. If he retains a reversionary interest in the real property transferred, privity of estate does not arise between the landlord and the transferee; the transfer does not constitute an assignment and the landlord cannot enforce the payment of rent by the transferee to himself. The transfer under such circumstances constitutes a sublease and the relation of landlord and tenant does not exist between the original lessor and the transferee. In Damainville v. Mann (32 N. Y. 197, 205) the court said: “ When the demised premises are held by divers assignees of the term in several parts, the rent, which is a common charge upon all the parts, may be apportioned amongst them according to the extent of their several shares.”

As opposed to the general recognition of the rule that an assignment of a part of demised premises for the remainder of the term constitutes an assignment pro tanto of the original lease and not a sublease, we have the decision in Midway Hotel Co. v. Belleclaire Syndicate, Inc. (138 Misc. Rep. 401). That case presented the precise issue now under discussion and the City Court held that even though it was for the entire term, the agreement was a sublease and not an assignment. The court there refers to Collins v. Hasbrouck (56 N. Y. 157), which was an action in ejectment based on an alleged breach of a covenant against subletting. The plaintiff had indorsed a consent on the sublease upon being informed that it was for a limited term, whereas the sublease contained a- privilege to the sublessee to extend the term for the remainder of the term of bis lessor. The lower court found for the plaintiff. In the Court of Appeals the defendant argued that the conveyance amounted to an assignment and not a sublease on the ground that the entire term of the lessee had been transferred even if the entire premises were not. The court held it to be a sublease and not an assignment.

The original lease under consideration there specified a definite term. There was a stipulation for a right of re-entry on non-payment of rent and on the breach of certain conditions. The under-lease from the lessees to defendant reserved rent at a new rate and on a new time of payment and, the court found, for a term to which the plaintiff-lessor did not consent. Therefore, the lessees breached the covenant not to sublet and the lessor had the right to re-enter. The court said: The Bronners [lessees] did not part with their whole interest in the premises and in the lease thereof to them ” (p. 163).

Under the findings of the jury in that case, the transfer by the lessees to the defendant constituted a violation of the condition of the original lease giving the landlord the right to re-enter for breach of condition. Therefore, the transfer by the lessees to the defendant did not constitute a transfer of their entire term and was not an assignment of the lease but was a subletting. The case is not an authority in conflict with Woodhull v. Rosenthal (supra). It cannot be inferred that the Court of Appeals would have held likewise had the facts been similar to those in the instant case and in Midway Hotel Co. v. Belleclaire Syndicate, Inc. (supra), in which cases there was a transfer of the entire term.

“ An opinion which is to overrule all former precedents, and to establish a principle never before recognized, should be expressed in plain and explicit terms. A mere implication ought not to prostrate a principle which seems to have been so well established.” (Per Chief Justice Marshall, Trial of Burr, 4 Cranch, 469, 481.)

In Woodhull v. Rosenthal (supra) the decision rests squarely upon determination of the issue here involved and cannot be presumed to be overruled by implication.

The defendant argues that dire consequences may result if this judgment is affirmed as it would make liable for rent to the original landlord a sublessee who took space in leased premises on the faith of continued occupancy of the premises by the original lessee. However that may be, the great weight of authority is contrary to the defendant’s contention both in this State and other jurisdictions. This court has in effect expressed approval of the rule here applied by the trial court. There is no compelling reason for a departure from the rule so long established. If a change in the law is to be made, it must be made by the Legislature. Moreover, equally cogent reasons may be advanced in support of the doctrine and its effects may easily be contracted against.

We have carefully considered the other exceptions called to our attention by appellant, but do not find that they constitute reversible error.

The judgment should be affirmed, with costs.

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

Judgment affirmed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    In the Matter of Berry Wolf, Appellant, against John H. Delaney et al., Constituting the Board of Transportation of the City of New York, et al., Respondents.
    (Argued January 3, 1935;
    decided February 26, 1935.)

      Roy P. Monahan and S. Bertram Friedman for appellant.
    Disabled war veterans are entitled to preferences in civil service positions. (Constitution of State of New York, art. 5, § 6; Cons. Laws, ch. 7, § 21; Matter of Breckenridge, 160 N. Y. 103; Matter of Stutzbach v. Coler, 62 App. Div. 219; 168 N. Y. 416; People ex rel. Chappel v. Lindenthal, 173 N. Y. 524; Matter of Seeley v. Stevens, 190 N. Y. 158; People ex rel. Davison v. Williams, 213 N. Y. 130; Matter of Gianatasio v. Kaplan, 142 Misc. Rep. 611; 257 N. Y. 531; Matter of Tierney v. Wynne, 209 App. Div. 401.)

      Paul Windels, Corporation Counsel (Paxton Blair and Henry J. Shields of counsel), for respondents.
    Neither the Constitution nor the Civil Service Law grants disabled veterans any preference in retention but only in appointment and promotion. (People ex rel. Seward v. Sing Sing, 54 App. Div. 555; People ex rel. Brennan v. Scannell, 62 App. Div. 249.)

      Reginald Field for American Legion, Department of New York, First District, amicus curiœ.

   Per Curiam.

Section 31 of the Civil Service Law (Cons. Laws, ch. 7) is not violative of the preferences allowed by section 6 of article Y of the Constitution and section 21 of the Civil Service Law. While the point was not directly presented in Matter of Clancy v. Haderan (263 N. Y. 258), we agree with the courts below that the reasoning of the opinion in that case leads to the conclusion that section 31 of the Civil Service Law does not defeat any preference granted by section 21 in accordance with section 6 of article V of the Constitution.

The order should be affirmed, without costs.

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

Order affirmed.


text:
    Wise Shoe Co., Inc., Appellant and Respondent, v. Samuel S. Lowenthal, Individually and as Manager of Retail Shoe Salesmen’s Union Local 287, Respondent and Appellant, Impleaded with Others.

      (Argued January 17, 1935;
    decided February 26, 1935.)

      Emil Weitzner, Milton S. Gould and Benjamin H. Berman for plaintiff, appellant and respondent.
    The findings sustain the conclusion of law that the picketing was not peaceable, and that the plaintiff was, therefore, entitled to a permanent injunction restraining all picketing, at least in front of plaintiff’s Pitkin avenue store. (Exchange Bakery & Restaurant, Inc., v. Rifkin, 245 N. Y. 260; J. H. & S. Theatres v. Fay, 260 N. Y. 315; Interborougli R. T. Co. v. Lavin, 247 N. Y. 65; Nann v. Raimist, 255 N. Y. 307; Steinkritz Amusement Corp. v. Kaplan, 257 N. Y. 294; Stillwell Theatre, Inc., v. Kaplan, 259 N. Y. 405.)

      Samuel Null and Arthur K. Garfinkel for defendant, respondent and appellant.
    An injunction should not have been granted because the union had picketed the plaintiff’s shop upon the plaintiff’s refusal to unionize such shop, and by peaceful persuasion had sought both to convert the plaintiff’s employees to its fold and also to win the public’s support for its cause. (Exchange Bakery & Restaurant, Inc., v. Rifkin, 245 N. Y. 260; Nann v. Raimist, 255 N. Y. 307; National Protective Assn. v. Cumming, 170 N. Y. 315; Interborough R. T. Co. v. Lavin, 247 N. Y. 65; Stillwell Theatre, Inc., v. Kaplan, 259 N. Y. 405; J. H. & S. Theatres v. Fay, 260 N. Y. 315; American Steel Foundries v. Tri-City Central Trades Council, 257 U. S. 184; Interborough R. T. Co. v. Green, 131 Misc. Rep. 682; Willson & Adams Co. v. Pearce, 240 App. Div. 718; Wil-Low Cafeterias, Inc., v. Kramberg, 134 Misc. Rep. 841; Tree-Mark Shoe Co. v. Schwartz, 139 Misc. Rep. 136.) Neither the evidence nor the findings supported the drastic, sweeping injunction granted herein. In any event, there should have been no restraint against peaceful picketing and peaceable persuasion. (Butterick Pub. Co. v. Typographical Union No. 6, 50 Misc. Rep. 1; Engelmeyer v. Simon, 148 Misc. Rep. 621; Wilner v. Bless, 243 N. Y. 544; Exchange Bakery & Restaurant, Inc., v. Rifkin, 245 N. Y. 260; Interborough R. T. Co. v. Lavin, 247 N. Y. 65; Stillwell Theatre, Inc., v. Kaplan, 259 N. Y. 405; J. H. & S. Theatres v. Fay, 260 N. Y. 315; Aberon Bakery Co. v. Raimist, 141 Misc. Rep. 774; Nann v. Raimist, 255 N. Y. 307; Reed Co. v. Whiteman, 238 N. Y. 545; Federal Hats, Inc., v. Golden, 223 App. Div. 701.)
   Per Curiam.

Again we have the labor injunction restraining the defendants from picketing. The principles governing the granting of such injunctions and the limitations upon their terms have been repeatedly stated, yet we find, as do the lower courts, perplexities in application to ever changing circumstances and devices. In this case the plaintiff, operating a chain of shoe stores, opened a new one at 1597 Pitkin avenue in the borough of Brooklyn, New York city, on August 26, 1933. Nonunion labor was employed. The Retail Shoe Salesmen’s Union of Brooklyn was and is an unincorporated association, and Samuel S. Lowenthal was its manager. Members of this union commenced on the opening night and thereafter continued to picket the premises, walking up and down the sidewalk carrying placards bearing the words: “ Please do not patronize this store. They refuse to employ union shoe salesmen. Retail Shoe Salesmen’s Union, Local 287, affiliated with the American Federation of Labor, Central Trades Labor Council.” Such picketing was peaceful and not illegal. The pickets went further, as is so apt to be the case. They shouted at customers and increased the shouts as customers indicated a"desire to enter the store; some called out that the store was on a strike, which was untrue; customers were intimidated and put in fear by the conduct and speech of said pickets; ” crowds were caused to collect and obstruct the premises of the plaintiff.

On these facts the defendant and his associates have been enjoined, (1) “ from threatening or intimidating, directly or indirectly, by placard, or sign, or by word of mouth, or by force or otherwise, any officer or employee of the plaintiff’s store at No. 1597 Pitkin Avenue, in the Borough of Brooklyn, City of New York; (2) from in any manner picketing or congregating or loitering in front of-the plaintiff’s store * * * ; (3) or gathering or causing any crowd to collect there; (4) and from persuading or inducing any person or persons to refrain from patronizing the plaintiff’s store * * Most of these requirements are in harmony with what this court has heretofore said. Nos. (1) and (3) are justified by the evidence; (2) must be modified so as to permit peaceful picketing with the placard heretofore described, but loitering or congregating in numbers about the premises is prohibited; (4) is modified to this extent — it is not illegal to distribute or circulate handbills or notices describing truthfully the facts of a non-union shop and requesting customers not to patronize it. Even the employees may be requested to join the union (Stillwell Theatre, Inc., v. Kaplan, 259 N. Y. 405),. but to go further or to annoy the employees or accost the customers may not be done and the injunction covers these acts (J. H. & S. Theatres, Inc., v. Fay, 260 N. Y. 315, p. 319). We have to fit the law to each set of facts. There have been and may be cases where all picketing will be forbidden. Such was Nann v. Raimist (255 N. Y. 307), where the directions of the court were deliberately disobeyed. So, too, there may be cases where the violence and disturbance have been so great and threatening that peaceful picketing is out of the question; where conduct has been so outrageous that no further chance is to be taken (Steinkrits Amusement Corp. v. Kaplan, 257 N. Y. 294).

Here, however, the excess has been noise and shouting whereby customers were frightened and crowds collected. We have never gone so far as to hold that wherever acts or words went beyond peaceful picketing, all picketing was to be enjoined. If so there would have been no need for the many modifications of injunction judgments which this court has made. It all depends upon the danger to be reasonably anticipated. We modify this injunction, therefore, to restrain all shouting, collection of crowds, interference of any kind with customers, loitering upon or obstructing the sidewalk or the entrance to the store, and we permit peaceful picketing with sign or placard with truthful legend and persuasion by sign, notice or handbill. Should any of these provisions be violated, application may be made, on notice, to the Special Term to add to the foot of the judgment a provision prohibiting all picketing.

This also disposes of the plaintiff’s appeal from the modification by the Appellate Division.

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

Ceane, Ch. J., Lehman, O’Bbien, Hubbs, Cbooch, Loughban and Finch, JJ., concur.

Judgment accordingly.


author: Loughran, J.

text:
    In the Matter of Young Women’s Hebrew Association et al., Appellants, against The Board of Standards and Appeals of the City of New York et al., Respondents.
    (Argued January 7, 1935;
    decided February 26, 1935.)

      Harold H. Levin for appellants.
    The record being barren of evidence from which practical difficulties or unnecessary hardship may be fairly inferred, the Board of Standards and Appeals was without power to grant the variation herein. (Matter of Reed v. Board of Standards & Appeals, 255 N. Y. 126; People ex rel. Fordham M. R. Church v. Walsh, 244 N. Y. 280; Matter of Chizner v. Walsh, 236 App. Div. 731; 261 N. Y. 707; Matter of Proc Building Corp. v. Connell, 240 App. Div. 782; 264 N. Y. 513.) The fact, if true, that the intervener’s property was being operated at a loss does not constitute a sufficient hardship under section 21 of the Building Zone Resolution. (Matter of Stillman v. Board, 222 App. Div. 19; 247 N. Y. 599; Matter of Dempsey v. Murdock, 241 App. Div. 64; People ex rel. Werner v. Walsh, 212 App. Div. 635; 240 N. Y. 689; Matter of 4672 Broadway Corp. v. Board of Standards & Appeals, 225 App. Div. 97.) The presence of the two gasoline stations on the opposite side of the plaza is not “ hardship ” within the meaning of section 21. (People ex rel. Werner v. Walsh, 212 App. Div. 635; 240 N. Y. 689; Matter of Chizner v. Walsh, 236 App. Div. 731; 261 N. Y. 707; Matter of Reed v. Board of Standards & Appeals, 255 N. Y. 126.)

      Paul Windels, Corporation Counsel (Paxton Blair and Seymour B. Quel of counsel), for the Board of Standards and Appeals of the city of New York et al., respondents.
    The evidence in the record is adequate to support the conclusion of the Board to the effect that practical difficulties or unnecessary hardships would result if the strict letter of the Building Zone Resolution were enforced against the applicant. (People ex rel. Fordham M. R. Church v. Walsh, 244 N. Y. 280; Matter of Reed v. Board of Standards & Appeals, 230 App. Div. 21; 255 N. Y. 126; Matter of Riverside St. Clair Corp. v. Walsh, 131 Misc. Rep. 652; 225 App. Div. 655.) The Board did not abuse its discretion in granting the application for a variation and its decision should, therefore, be permitted to stand. (People ex rel. St. Albans-Springfield Corp. v. Connell, 257 N. Y. 73; People ex rel. Werner v. Walsh, 212 App. Div. 635; 240 N. Y. 689; Matter of Reed v. Board of Standards & Appeals, 230 App. Div. 21; 255 N. Y. 126.)

      Gustavus A. Rogers for Gelkom Realty Corporation, intervener, respondent.
    The Board of Standards and Appeals having granted the application, the only question open is, did the Board have the power. (Matter of Reed v. Board of Standards & Appeals, 255 N. Y. 126; People ex rel. St. Albans-Springfield Corp. v. Connell, 257 N. Y. 73.) Unprofitable use of the property and neighborhood conditions are proper elements in considering unnecessary hardship. (People ex rel. Fordham M. R. Church v. Walsh, 244 N. Y. 280; Matter of Rutland Parkway, Inc., v. Murdock, 241 App. Div. 762.) The intervener-respondent made out a case of unnecessary hardship. (People ex rel. Werner v. Walsh, 212 App. Div. 635; 240 N. Y. 689; Matter of 4672 Broadway Corp. v. Board of Standards & Appeals, 225 App. Div. 97; Matter of Dunne v. Walsh, 235 App. Div. 72; Matter of Nagaven Realties, Inc. v. Benzhaf, 149 Misc. Rep. 361; Wilkins v. Walsh, 225 App. Div. 774; 251 N. Y. 518.)
   Loughran, J.

The intervener respondent is the owner of premises at the northwest corner of Fifth avenue and One Hundred and Tenth street, Manhattan, city of New York. The property is wholly within a district zoned for business. “In a business district no building or premises shall be used, and no building shall be erected which is arranged, intended or designed to be used, for any of the following specified trades, industries or uses: * * * (46) Gasoline service station.” (Amended Building Zone Resolution, § 4; see New York Code of Ordinances, Appendix B.)

The Board of Standards and Appeals is empowered in a specific case to vary any provision of the zoning resolution, when the variation is in harmony with the general purpose and intent to secure the public health, safety and general welfare, and does substantial justice, and the case is one “ where there are practical difficulties or unnecessary hardships in the way of carrying out the strict letter of the provisions of this resolution.” (Amended Building Zone Resolution, § 21.) Pursuant to the power so conferred in a case of unnecessary hardship, the Board, on November 8, 1933, granted to the intervener respondent permission to convert its property into a gasoline service station. This action was reviewed by certiorari (Charter of the City of New York, § 719-a; Laws 1901, chap. 466, added by L. 1916, chap. 503, § 6, as amd.) upon the petition of the appellants, owners of properties in the neighborhood. The decision of the Board was confirmed at Special Term. The order of confirmation has been affirmed by the Appellate Division. We allowed this appeal so that we might review the question whether the finding of unnecessary hardship has any support in the record.

Conformably to the requirement that “ the hardship and its occasion must be exhibited fully and at large ” (People ex rel. Fordham M. R. Church v. Walsh, 244 N. Y. 280, 290; Charter of the City of New York, § 719-a), the return of the Board includes its proceedings, and sets forth the following facts to show the grounds of its decision:

1. That the particular locality, 110th Street and 5th Avenue, has, at the present day, a gasoline service station on the northeast corner, a gasoline service station on the southeast corner, the applicant’s corner on the northwest corner [being] at present occupied by a moving picture theatre, and on the southwest corner Central Park.
2. That the inspection further disclosed the fact that no gasoline service station existed on the west side of 5th Avenue from Harlem down to Lafayette Street. That as a result of that condition south-bound traffic in order to obtain gasoline along such thoroughfare necessarily caused traffic congestion by vehicles being compelled to make a complete round-about turn in order to cross over to the east side of the thoroughfare where gasoline stations were located. The Board of Standards and Appeals found that a gasoline service station located on the premises of the applicant would, under such conditions, fill a public need by obviating the dangers of such traffic congestion caused by the crossing of vehicles from the west side to the east side.
“ 3. That the hearing further disclosed the fact that the applicant was suffering real hardship within the meaning and purview of Section 21 of the zoning restrictions. That the use for conforming purposes of that particular locality would not only cause failure to bring a proper return on the investment of the applicant, but would actually amount to a weekly loss of from $200 to $300. In other words, if compelled to use the premises for conforming purposes, the applicant clearly proved to the Board of Standards and Appeals that such use would be tantamount to confiscation.
“ 4. That the neighborhood in question, which at one time had been of a substantial, residence and business character, had deteriorated within the past fifteen years. The Board of Standards and Appeals was fully satisfied that the construction of an apartment house on such premises would not rent for a sufficient amount to bring any return to the applicant due to the character of the neighborhood at the present day.”

Little need be said respecting the first or the second reason- assigned by the Board for its action. The nearby gasoline service stations were existent when such a use of premises in a business district was proscribed in 1925. The suggestion that traffic congestion would be relieved by the opposition of a corresponding establishment across the street was adequately answered at the hearing by the chairman of the Board: “ It is an interesting observation, but does not bear on the question of hardship very much.”

The third and fourth reasons given for the action of the Board raise questions the importance of which is attested by recent cases in this court involving much the same inquiry. (Matter of Chizner v. Walsh, 261 N. Y. 707; Matter of Proc Building Corp. v. Connell, 264 N. Y. 513; People ex rel. Arseekay Syndicate, Inc., v. Murdock, 265 N. Y. 158; Matter of Eckels v. Murdock, 265 N. Y. 545.) This current of litigation on what is apparently a not uncommon set of facts has persuaded_us to state more fully here the reasons for our decision.

The land of the intervener respondent, triangular in shape, has a frontage of one hundred and seventy-eight feet on Fifth avenue. The existing structure, a theatre building with stores and offices, was erected more than twenty years ago. From November, 1931, to March, 1933, gross income from the property in its present condition was $22,700. The carrying charges for that period were $8,700. Thereafter this revenue was substantially reduced. At the hearing the chairman of the Board inquired what the difference was at that time between operating cost and gross return. He elicited only this statement by an officer of the intervener respondent: “ I couldn’t tell you, but we are losing approximately $200 to $300 a week.” Nothing appears to show the value of land or building other than the fact of an assessment at $110,000. This data, it may be premised, does not establish that the property of the intervener respondent can be applied to profitable business use only as a gasoline service station.

No doubt the Board is right in its conclusion that the quality of the locality has so far been transformed that this property (as it now stands) cannot be made to serve any productive conforming use. We assume, too, that, under present economic conditions, no wise and careful business man would exploit the land by substituting for the existing structure one adapted to conforming ends. Still, we think, the case did not warrant exercise of the delicate jurisdiction to vary, on the basis of unnecessary hardship, the applicable provision of the zoning resolution.

In the cases last cited the plight of the property owner was not substantially different. In each the self-same non-conforming use was sought to be made the means of deliverance from an equal and like exigency, and in all the privilege was held to have been validly denied. It is true that in no instance was more decided than that the particular record sustained the opinion of the Board, but it does not follow, as is now contended, that contrary action by the Board would in any instance have been equally beyond judicial interference.

A variation under section 21 must do substantial justice.” To that end, the section, so far as is practically possible, must affect alike all persons in the same situation. Equality of privileges is a basic principle of government. To cure by exemption in his case the loss resulting to one owner from general deterioration of a neighborhood is to depreciate the adjacent properties of other owners, and is unjust also to those whose properties remain subject to the same restriction in other localities likewise impaired. Moreover, such a theory of variation would in the long run defeat the general purpose of a zoning law. We are in accord with the reasoning of the Supreme Judicial Court of Massachusetts in Prusick v. Board of Appeal (262 Mass. 451), where B,tigg, Ch. J., said for the court (p. 457): “ It is manifest from the general purpose underlying any zoning act * * * that the power to vary the application of the act is to be exercised sparingly. Exceptional circumstances alone justify relaxation in peculiar cases of the restrictions imposed by the statute. The dominant design of any zoning act is to promote the general welfare. * * * The stability of the neighborhood and the protection of property of others in the vicinity are important considerations. The financial situation or pecuniary hardship of a single owner affords no adequate ground for putting forth chis extraordinary power affecting other property owners as well as the public.”

The orders should be reversed, without costs, and the determination of the Board of Standards and Appeals annulled. (See 266 N. Y. 672.)

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

Orders reversed, etc.


author: Crouch, J.

text:
    The People of the State of New York ex rel. Bert Kirkman et al., Appellants, v. Guy Van Amringe, as City Magistrate of the City of New York, Respondent.

      (Argued January 7, 1935;
    decided February 26, 1935.)

      Harold Stern for appellants.
    The group insurance policy is a valid and subsisting contract. On the agreed statement of facts, the law does not consider the insurance association as transacting business in the State of New York. (Huntington v. Sheehan, 206 N. Y. 486; Stone v. Penn Yan, Keuka Park & Branchport Ry. Co., 197 N. Y. 279; Providence Sav. Life Ins. Society v. Kentucky, 239 U. S. 103; New York Life Ins. Co. v. Dodge, 246 U. S. 357; Minnesota Commercial Men’s Assn. v. Benn, 261 U. S. 140; International Life Ins. Co. v. Sherman, 262 U. S. 346; Palmetto Fire Ins. Co. v. Beha, 13 Fed. Rep. [2d] 500; Compagnie Du Port De Rio De Janiero v. Morrison Mfg. Co., 19 Fed. Rep. [2d] 163.) The relators are not the agents of the insurance association and do not aid in the solicitation or procurement of the policies or certificates of insurance, nor in the adjustment of losses, nor in the transaction of business as contemplated by section 1199 of the Penal Law. They are not, therefore, guilty of a violation of such section. (Bossert v.
      Dhuy, 221 N. Y. 342; Salzano v. Marine Ins. Co., 173 App. Div. 275; People v. Imlay, 20 Barb. 68.)

      William Copeland Dodge, District Attorney (Ambrose J. Delehanty of counsel), for respondent.
    The Legislature intended to prohibit and punish any one aiding the transaction of business for a foreign insurance company which had failed to designate the New York State Superintendent of Insurance as its attorney in fact. (Cons. Laws, ch. 28, § 50; Penal Law, § 1199.)
   Crouch, J.

The appellants, charged with a violation of section 1199 of the Penal Law, were held by the magistrate for a hearing. Writs of habeas corpus obtained by them were dismissed. The orders of dismissal were affirmed by the Appellate Division.

The sole question here is whether, within the intendment of that section, the appellants in any manner aided the transaction of any business in this State by a foreign insurance company which had not designated the Superintendent of Insurance as its attorney upon whom lawful process might be served.

The facts are undisputed. The appellants are officers of Local Union No. 3 of the International Brotherhood of Electrical Workers. Local Union No. 3 is an unincorporated association located in the city of New York. On May 20, 1927, Local Union No. 3 at Washington, D. C., entered into a written contract with the Union Co-Operative Insurance Association. That contract is in the form of a group life insurance policy issued pursuant to a written application by Local Union No. 3. The Union Co-Operative Insurance Association is a foreign corporation organized under an act of Congress. It has its home office in the city of Washington; it maintains no office in this State for the transaction of business; it has no authorized agents or representatives here, and it is not licensed under the laws of this State to do business here.

The contract or group policy is an agreement by the Insurance Association to pay a certain amount on due proof of the death of any member of Local Union No. 3, occurring while the policy is in force as to such member. It was issued in consideration of the payment on its date of a stated premium, and of a further monthly premium in each succeeding month based on the amount of insurance then in force to be calculated as therein provided. It contained, among others, the following provisions:

Members in good standing in the Union on the policy date are immediately eligible for insurance, and those becoming members of the Union after the policy date will be eligible for insurance upon attaining membership in the Union. Insurance shall be effective from, the policy date for those who are then eligible and whose names appear on the application of the Union for insurance; new members and members not eligible for insurance on the policy date become insured hereunder upon receipt by the Association of a schedule giving the data in respect to such members as is required by the schedule annexed to the application for insurance, together with a certificate that such members are members of the Union in good standing and are all in good health, at the time of the submission of the supplemental schedule. Such schedule shall be sent by the Union to the Association monthly, on the premium date.”
The Association will issue to the Union for delivery to each member insured hereunder, an individual certificate, setting forth a statement of the amount of insurance protection to which the member is entitled and to whom it is payable.”

Under the by-laws of Local Union No. 3, all members are required to carry insurance under the group policy. Included in the quarterly dues of every member is the sum of five dollars and ten cents, his share of the premium payable by Local Union No. 3 to the Insurance Association under the terms of its contract. The financial secretary each month sends by mail to the* Insurance Association at its home office in Washington a check for that portion of the total dues collected representing insurance premium. The Insurance Association does not pay any commission or compensation of any kind to Local Union No. 3 or to its officers or agents.

Section 1199 of the Penal Law must, we think, be read in connection with various provisions of the Insurance Law (Cons. Laws, ch. 28), and in particular with sections 49 and 50. (Cf. Salzano v. Marine Ins. Co., 173 App. Div. 275.) So read it seems reasonably clear that there can be no violation of section 1199 except where a person in this State aids in the transaction of business in this State by an insurance company not authorized to transact business here. It does not cover aid extended here to an insurance company in the lawful transaction of its business elsewhere. Two questions thus arise: (1) Is the Insurance Association transacting business in this State; and (2) if so, are the appellants in any manner aiding the transaction of that business for the Insurance. Association.

(1) It is settled law that a State cannot forbid contracts of insurance relating to risks within its limits from being made between a citizen and a corporation in another State. (Allgeyer v. Louisiana, 165 U. S. 578; Ætna Life Ins. Co. v. Dunken, 266 U. S. 389; New York Life Ins. Co. v. Dodge, 246 U. S. 357.)

Obviously the Insurance Association in making its insurance contract with Local Union No. 3 was not doing business in this State. (Huntington v. Sheehan, 206 N. Y. 486; Stone v. Penn Yan, K. P. & B. Ry., 197 N. Y. 279.) Nor was the interest acquired under that contract upon its issuance by the then existing members of the union whose names appeared on the application for insurance the result of any act in this State by the Insurance Association. In respect to the interest of those who subsequently became members of the union, the same thing is true. Palmetto Fire Ins. Co. v. Conn (272 TJ. S. 295) holds nothing to the contrary. The question in that case was not whether the insurance company was doing business in Ohio, but whether or not, upon constitutional grounds, the State had power to deny it the right to enter or remain in the State unless it paid, as part of the price, a tax upon transactions consummated in the State. There the purchaser of a Chrysler car by acts done in Ohio automatically obtained for himself, whether he wished it or not, certain insurance which took effect upon delivery of the car or of a bill of sale. Here it was expressly stipulated that the new members did not become insured ipso facto by attaining membership. Before insurance became effective and before the individual certificate was issued, certain data, including proof of membership and of good health, was required to be submitted to the Insurance Association at its home office in Washington. We are unable to see that the contractual rights, either of Local Union No. 3 or of any of its members, came into existence by virtue of any acts which would constitute the transaction of business in this State.

(2) It follows, under the construction which we have put upon section 1199, that even though appellants by their acts could be said to have been aiding the Insurance Association, they were guilty of no violation of the section because their aid was not given in the transaction of business within the State, Had it been otherwise, still there would have been no violation since they were in no sense acting for the Insurance Association, but at most were acting on behalf of Local Union No. 3, of which they were officers, and on behalf of the individual group members.

The orders should be reversed, the writs of habeas corpus sustained and the prisoners discharged.

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

Ordered accordingly.


text:
    In the Matter of the Estate of James A. Trowbridge, Deceased. The State of Connecticut, Appellant; The State Tax Commission of the State of New York, Respondent.

      (Argued January 2, 1935;
    decided February 26, 1935.)

      T. Ludlow Chrystie, William H. Blodgett, Farwell Knapp and Thomas Witter Chrystie for appellant.
    The legal conclusion of New York domicile must be changed if it is conclusively established that decedent intended to continue to five in Connecticut as his fixéd and permanent home. (Dickinson v. Brookline, 181 Mass. 195; National City Bank v. Hotchkiss, 231 U. S. 50; Matter of Paris, 107 Misc. Rep. 463; Kerby v. Charlestown, 78 N. H. 301; Gilbert v. David, 235 U. S. 561; Rosenberg v. Commissioner of Internal Revenue, 37 Fed. Rep. [2d] 808; Douglas v. Douglas, 12 Eq. 617; Commonwealth v. Davis,
      187 N. E. Rep. 33; Feehan v. Tax Commission, 237 Mass. 169; Matter of Dorranee, 309 Penn. St. 151; 288 U. S. 617; Matter of Beechwood, 142 Misc. Rep. 400; Matter of Sedgwick, 223 Fed. Rep. 655; Bowen v. Commonwealth, 126 Va. 182; Holt v. Hendee, 248 Ill. 288.) Declarations and acts made and performed by decedent before his death do not obviate the significance of all his acts and statements indicating that he intended to continue to live in Connecticut as his fixed and permanent home. (Matter ofLydig, 191 App. Div. 117; Matter of Sedgwick, 223 Fed. Rep. 655; Archer v. Civil Service Comm., 26 Pac. Rep. [2d] 41; Matter of Lachenmeyer, 144 Misc. Rep. 678; Matter of Mesa y Hernandez, 172 App. Div. 467; 219 N. Y. 566; Matter of Chadwick, 109 Misc. Rep. 696; Matter of Steer, 3 H. & N. 594; Matter of Morgan, 95 Misc. Rep. 451; 176 App. Div. 909; Curtis v. Curtis, 185 App. Div. 391; Chaine v. Wilson, 1 Bosw. 673; Attorney-General v. Yule & Mercantile Bank of India, 145 L. T. 9; Dickinson v. Brookline, 181 Mass. 195; Thayer v. Boston, 124 Mass. 132.)

      Edgar Hirschberg for respondent.
    The question to be determined is not a question of residence but is a question of domicile. (Matter of Newcomb, 192 N. Y. 238; Matter of Martin, 173 App. Div. 1; Matter of Harkness, 183 App. Div. 396; Matter of Frick, 116 Misc. Rep. 448; Matter of Lange, 233 App. Div. 716; United States Trust Co. v. Hart, 150 App. Div. 413; Matter of Blumenthal, 101 Misc. Rep. 83; 186 App. Div. 944; Matter of Seymour, 107 Misc. Rep. 330; Dupuy v. Wurtz, 53 N. Y. 556; Matter of Wendel, 144 Misc. Rep. 467.) The findings of fact are supported by the evidence. (Bassett v. Wheeler, 84 N. Y. 466; De Meli v. De Meli, 120 N. Y. 485.) The question whether a domicile has been changed is one of fact rather than of law and the burden of proof rests upon the party who alleges the-change. (.Matter of New-

      comb, 192 N. Y. 238; Dupuy v. Wurtz, 53 N. Y. 556; Matter of Lyon, 117 Misc. Rep. 189.) A person may select and make his own domicile and no one may let or hinder. (Matter of Newcomb, 192 N. Y. 238.)

      Frank H. Sincerbeaux for executors of James A. Trowbridge, deceased.
    The order appealed from is a final order and as such is appealable to the Court of Appeals. (Brown v. Feek, 204 N. Y. 238; Albany Hospital v. Albany Guardian Society, 214 N. Y. 435; Sinclair v. Purdy, 235 N. Y. 245; Matter of City of New York [Staten Island Proceeding], 237 N. Y. 275; United States Trust Co. v. Chefdenbien, 223 N. Y. 657.)
   Loughran, J.

When leave was granted to the State of Connecticut to take this appeal it was held that the order entered upon the decision of the Appellate Division is one which finally determines a special proceeding. (N. Y. Const, art. VI, § 7, subd. 5; Civ. Prac. Act, § 588, subd. 5.) That aspect of the record will first be discussed.

James A. Trowbridge died at Noroton, Connecticut, May 30, 1931. He left a will which was admitted to probate by the Surrogate’s Court of the county of New York. The executors to whom letters testamentary were issued then presented to that court a petition entitled, “ In the Matter of the Estate Tax upon the Estate of James A. Trowbridge, deceased,” which recited that there was a question as to whether decedent died a resident of New York of Connecticut; * * * that it" will be to the best interests of said estate and that of the persons interested therein that the question of the residence of the decedent be litigated before a Surrogate of New York County, in order that a single decree be binding upon the States of New York and Connecticut.” The prayer of the petitioners was “ that the question of the residence of the decedent be referred to a referee to take evidence as to the residence of the decedent and report the same, together with his opinion, to the Surrogate for his determination, with like force and effect as if this petition had alleged that the decedent was a resident of the State of Connecticut and the State Tax Commission of the State of New York had controverted the claim of the executors in that regard and had alleged that the decedent was at the time of his death a resident of the State of New York.” The petition was granted by an order which provided “ that the State of Connecticut be permitted to intervene in this proceeding to the end that the question of whether the decedent was a resident of the State of New York or a resident of the State of Connecticut at the time of his death be determined in this proceeding, and that the State of Connecticut be permitted to litigate that question as a proper party in this proceeding.” This order was entered upon the express consent of the respondent, the State Tax Commission of this State. Without reservation, Connecticut accepted and fully availed itself of the license so tendered to it.

The report of the referee includes all proof submitted to Mm and makes findings of fact and a conclusion of law that the domicile of Mr. Trowbridge at Ms death was in the city and county of New York, State of New York. Upon the record thus made, Connecticut moved for an order adjudging that Mr. Trowbridge died a non-resident of the State of New York and a resident of Noroton, Connecticut. The motion was demed. An order was made confirming the report of the referee upon the application of the State Tax Commission of tins State, and adjudging that the decedent, at the time of Ms death on May 30, 1931, was domiciled in and a resident of the city and county of New York in the State of New York.” The Appellate Division has unanimously affirmed tins order.

The decision of the Appellate Division, as we have held, has the finality reqmsite to review of its order by this court. The reasons for that ruling may be briefly stated.

The purpose of this proceeding was the establishment of a basis for the tax liability of the estate of Mr. Trowbridge to this State and to Connecticut. For that purpose, Connecticut was bidden to contest in the Surrogate’s Court of the county of New York the issue whether at his death Mr. Trowbridge was domiciled in Connecticut or in this State. That court had general jurisdiction to administer justice in all matters relating to the affairs of Mr. Trowbridge and to determine all questions, legal or equitable, arising between parties who voluntarily appeared in any proceeding invoking that broad power. (Surr. Ct. Act, § 40.) It had also specific authority to determine all questions in respect of the tax to be imposed upon this estate under article 10-C of the Tax Law (Cons. Laws, ch. 60), whether Mr. Trowbridge died a resident or non-resident of the State. (Tax Law, § 249-t.) Although the form into which this proceeding has been cast is not in terms dictated by law or rule, the direction that the issue of domicile be separately tried was fully warranted. (Surr. Ct. Act, §§ 66, 316: Civ. Prac. Act, § 443; Matter of Cook, 244 N. Y. 63; Matter of Hyde, 218 N. Y. 55.)

It is presumed that Connecticut intervened in the proceeding with recognition that the decree to be made would be conclusive as to all matters embraced therein against every person of whom jurisdiction was obtained.” (Surr. Ct. Act, § 80.) The result is that, in so far as any tax liability of the estate of Mr. Trowbridge necessarily depends upon the situs of his domicile at his death, Connecticut is presently bound by the decision below that his domicile was then in this State. (Amherst College v. Ritch, 151 N. Y. 282, 343.) The order of the Appellate Division has finally determined this proceeding against the appellant State of Connecticut and the appeal of that State is properly here. (Matter of City of New York [Staten Island Proceeding], 237 N. Y. 275.)

As we turn to the merits, it is to be observed that the existence of none of the evidentiary facts is disputed. Even so, as the respondent reminds us, if the ultimate conclusion to be found from the conceded proof may fairly be the subject of differing points of view in reasonable minds, this appeal must fail. Mr. Trowbridge, however, had but one domicile when he died. What must be here decided is' whether all the facts tending to show that his domicile was then in Connecticut conclusively overbalance all the facts tending to show that he was at that time domiciled in this State. In its nature such an analysis of the evidence is a comparison of one combination of facts with another, and the significance of some of the factors involved is as matter of law greater than that of others. What was this man’s general habit of life? That is always the great and leading inquiry in questions of domicil.” (Sherwood v. Judd, 3 Bradf. 267, 276.) “Achange of domicile maybe made * * * for any reason whatever, provided there is an absolute and fixed intention to abandon one and acquire another and the acts of the person affected confirm the intention. * * * While acts speak louder than words, the words are to be heard for what they are worth.” (Matter of Newcomb, 192 N. Y. 238, 251, 252.)

Mr. Trowbridge was born at New Haven, Connecticut, June 6, 1843. He was reared and educated there. In early manhood he became associated with a banking firm in the city of New York. That association continued until he retired from active business in 1902. In 1884 he acquired a residence property at 57 East Thirty-fourth street in the city of New York which remained in his ownership at his death. This was the principal Trowbridge family establishment, at least until 1890. Thereafter the family spent the summer each year at Noroton, Connecticut, until Mr. Trowbridge in 1904 purchased a substantial residence there which admittedly was his domicile in 1921 when it was razed by fire. It has been held below that Mr. Trowbridge then changed his domicile from Connecticut to the city of New York and kept it there to his death. This finding is the crux of the controversy.

^In 1921 Mr. Trowbridge was seventy-eight years of age. His active business life had ended years before. At once he planned to replace the Noroton family headquarters which fire had destroyed. A new habitation on the same site was completed in 1924 at a cost of half a million dollars. By this structure the man sought to express himself. He embellished it with the family crest and coat of arms. The findings are that he took a personal pride in having his family circle about him at the house he had built. * * * He had engraved in the stone mantelpiece above the fireplace in the dining room the inscription ‘ 0 nodes cenaeque deum quibus ipse meique ante larem proprium vescor ’ 0 nights and feasts of the gods which I and mine enjoy before our own hearthstone ’), * * * This family home was the center of family reunions on numerous occasions. * * * He had built therein a large play room so that his grandchildren as well as his grandnephews and grandnieces, near neighbors of bis * * * would have an appropriate place to play. * * * He was interested in his flowers, his garden and his trees. * * * He took pleasure in running his home, and was distinctly a home man.’h.

Mr. Trowbridge and his immediate family, his wife and an unmarried son, lived in the new mansion from its completion in 1924 to his death on May 30, 1931. During that period the house in the city of New York was unused and boarded up. Telephone service there was discontinued. Furnishings and silver were removed to the Noroton household. In the last six years of his life Mr. Trowbridge spent the night under that roof on all but twenty-one occasions. In 1930 he declared in casual conversation with a friend and neighbor that bis home was in Connecticut and he was going to stay there; that he had closed his town house and never expected to go back to it. The learned referee says in his opinion: “ From about November,' 1924, decedent and his family lived at the new house at Noroton exclusively.” Such, in substance, is the case made by the State of Connecticut.

After his retirement from active business in 1902, Mr. Trowbridge had desk room in an office at 71 Broadway in the city of New York where he attended almost daily until his death. His investments were largely in bonds of this State and its municipalities. Tax problems persuaded him to have the advice of a lawyer during 1921. He was told that it was mainly a matter of intention of the man himself, and that the first thing to do was to describe himself in all writings and instruments as a resident of the State of New York.” Consistently thereafter that counsel was repeatedly followed. The numerous documents in which Mr. Trowbridge characterized himself as residing in the city of New York need not be listed. It is the admitted fact that he desired to have his residence ” in that city after 1921.

In 1921 and thereafter, except 1925 and 1930, he registered and voted in the city of New York as a resident of 57 East Thirty-fourth street, Manhattan. On October 15,1921, he filed a verified statement with the Connecticut tax authorities as a non-resident of that State, a declaration of status never withdrawn. Later he requested the tax authorities of the city of New York to transfer his name to the resident tax roll for Manhattan, upon which he was entered accordingly from 1924 to 1930, inclusive, as residing at 57 East Thirty-fourth street. On October 15, 1929, he submitted to the same authority an affidavit asserting that his taxable personal property within this State did not exceed one thousand dollars in value and that his residence was at 57 East Thirty-fourth street. He also said to one of his sons that he was a resident of this State. His will so declares. In substance, such is the proof of the respondent State Tax Commission of this State.

General concepts or definitions of domicile need not now engage us. If at a given time a man exclusively makes his home with his family in a complete domestic establishment, intending so to occupy it for the rest of his days, the place of that habitation is then his domicile, no matter what he may say to the contrary. (Matter of Roberts, 8 Paige, 519, 523, 524; Peterson v. Chemical Bank, 32 N. Y. 21; Dupuy v. Wurtz, 53 N. Y. 556, 566; Matter of Harkness, 183 App. Div. 396.) We have just that case here. Concededly, Mr. Trowbridge actually lived only in his Noroton house for years before his death. His purpose to keep his family settlement there as long as he lived is demonstrated by the accepted evidence. What is there to diminish the force of these dominant facts? Chiefly the declarations made to tax authorities and the periodic voting pilgrimages to the city of New York. These — and again the supporting evidence is undisputed — were all parts of an attempt to vindicate an opinion that a man may retain an abandoned home as a technical domicile in law after he has elsewhere established another abode in which he expects to live indefinitely. Doubtless that intention was entertained in-good faith and from motives that are beyond criticism, but it is nonetheless irrelevant. (Chaine v. Wilson, 1 Bosw. 673.) (See Attorney-General v. Yule and Mercantile Bank of India, [1931] 145 L. T. 9, 17; Dickinson v. Brookline, 181 Mass. 195, as cited in National City Bank v. Hotchkiss, 231 U. S. 50, 56; Beale, 34 Harv. L. Rev. p. 52.) The additional fact that Mr. Trowbridge transacted his limited personal business in this State is unimportant in the circumstances. In Peterson v. Chemical Bank (supra) the question was whether one Cohen at his death had his domicile in the city of New York or in New Haven, Connecticut. In that case, as in this, property and business interests of the decedent were in this State. There it was the fact, as it is here, that the decedent in documents had described himself as of the city, county and State of New York. Denio, Ch.- J., said for this court: “The evidence was quite conclusive that the domicile of Cohen at the time of his death, was at New Haven. The purchase of an expensive dwelling house for his residence, the measures taken to furnish it with servants, and to repair and supply it with furniture and fuel, and the intention to make it his permanent abode for the remainder of his life were shown by positive evidence which was wholly uncontradicted. Upon this evidence there was no question for the jury, and if a verdict had been returned involving a denial of its effect, it would have been at once set aside. If it be conceded that, prior to these acts, and this manifestation of intention, it was equivocal whether his residence was at New York or New Haven, it was no longer so, after he had provided himself with a residence in the latter city, with the absolute determination permanently to occupy it ” (p. 40).

A question of domicile, like any other ultimate question, may be one. of law in the sense that in a particular case the conclusion of the trier of the fact is not necessarily final. “ If the facts are undisputed and admit of but one inference, the question is one of law.” (Wass v. Stephens, 128 N. Y. 123, 127.) Here, as we have said, all the primary evidentiary facts are admitted. We think that, upon the findings made below, the only inference admissible in sound reason is that the domicile of Mr. Trowbridge at his death was at Noroton, Connecticut. It may be suggested, of course, that by this disposition of the controversy we have imputed unreasonableness to the courts below because we disagree with them. Such a pleasantry has been dismissed before this. (Thayer, Cases on Evidence [2d ed.], p. 163.)

The orders should be reversed and the proceeding remitted to the Surrogate’s Court for further proceedings in accordance with this opinion, without costs.

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

Ordered accordingly.


text:
    In the Matter of the New York Central Railroad Company, Appellant, against Public Service Commission of the State of New York et al., Respondents.
    (Argued January 15, 1935;
    decided February 26, 1935.)

      William R. Stevens, Frederick L. Wheeler and Clive C. Handy for appellant.
    The Pubhc Service Commission has no jurisdiction over a private grade crossing. (Matter of N. Y. C. & H. R. R. R. Co., 200 N. Y. 121; Matter of State Commissioner of Highways [Town of Ripley], 239 N. Y. 279.) Compliance with section 90 of the Railroad Law (Cons. Laws, ch. 49) is prerequisite to the establishment of a pubhc highway railroad grade crossing. (People ex rel. Niagara Falls v. N. Y. C. & H. R. R. R. Co., 31 App. Div. 334; 158 N. Y. 410; N. Y. C. & H. R. R. R. Co. v. City of Buffalo, 128 App. Div. 373; 200 N. Y. 113; Village of Bolivar v. P., S. & N. R. R. Co., 88 App. Div. 387; 179 N. Y. 523; Brush v. N. Y., N. H. & H. R. R. Co., 162 App. Div. 731; 218 N. Y. 264; Matter of Ludlow Street, 59 App. Div. 180; 172 N. Y. 542; Matter of County of Westchester, 219 App. Div. 371; Cordell v. N. Y. C. & H. R. R. R. Co., 64 N. Y. 535.) No pubhc crossing has been established by user. (N. Y. C. & H. R. R. R. Co. v. Village of Ossining; 141 App. Div. 765; 207 N. Y, 648; Lehigh & H. R. R. Co. v. Village of Warwick, 164 App. Div. 55; Concklin v. N. Y. C. & H. R. R. R. Co., 149 App. Div. 739; 207 N. Y. 752.)

      Charles G. Blakeslee and John J. Donohue for respondents.
    The Pubhc Service Commission has jurisdiction to require a railroad corporation to station a flagman at a highway-railroad grade crossing. (Cons. Laws, ch. 49, § 53.) A highway-railroad grade crossing may be established by use. (People ex rel. Niagara Falls v. N. Y. C. & H. R. R. R. Co., 31 App. Div. 334; 158 N. Y. 410; Cordell v. N. Y. C. & H. R. R. R. Co., 64 N. Y. 535; Lewis v. N. Y., L. E. & W. R. R. Co., 123 N. Y. 496.) Kensico avenue is a pubhc highway, and its intersection with the tracks of the appellant is a pubhc highway-railroad grade crossing. (Speir v. Town of New Utrecht, 121 N. Y. 420; Johnson v. City of Niagara Falls, 230 N. Y. 77; Matter of Wallace Avenue, 222 N. Y. 139.)
   Crouch, J.

The controversy concerns the validity of an order made by the Public Service Commission requiring petitioner to station a flagman at the crossing at grade of its railroad and Kensico Avenue (or road) adjacent to the Valhalla station in the town of Mount Pleasant, Westchester County, who shall be on duty from 7:00 a. m. to 11:30 p. m. each day.” On certiorari to the Appellate Division the order was confirmed.

Kensico avenue, so called, was originally a farm crossing provided for in a right of way deed to the New York and Harlem Bailroad Company in 1845. With the passing years the section has changed from farm land to suburban community. The farm road has become a traveled way used by many people living west of the tracks for access to the railroad station and to that part of Valhalla lying east of the tracks. The evidence tends to show that by reason of certain physical conditions the crossing is one of danger to those traveling from the west.

The order was made under the authority conferred upon the Commission by section 53 of the Bailroad Law (Cons. Laws, ch. 49). That authority, however, is confined to public crossings. (Matter of N. Y. C. & H. R. R. R. Co., 200 N. Y. 121; Matter of State Commission of Highways [Town of Ripley], 239 N. Y. 279.) In recognition of that limitation the order of the Commission recites, among other things, a fact finding to the effect that the crossing is a public one. That finding rests upon testimony tending to show that for upwards of twenty years preceding the date of the order, the crossing had been used continuously by the public, and had been maintained by the town authorities.

Down to July 1, 1897, when chapter 754 of the Laws of that year took effect, it may well be that proof of such user would have established the existence of a public crossing. (Lewis v. N. Y., L. E. & W. R. R. Co., 123 N. Y. 496.) That seems, by dictum, to have been so even where there had. been no compliance with the then existing statute (Laws of 1853, chap. 62) relating to the construction of roads across railroad tracks. (Cordell v. N. Y. C. & H. R. R. R. Co., 64 N. Y. 535, 540.)

The amendment to the Eailroad Law made by chapter 754 of the Laws of 1897 radically changed the procedure for creating highway-railroad crossings. That act provides a complete scheme as to crossings * * *. The right of all municipalities to lay out streets across the property of a railroad remains unaffected by this legislation; but it does take away from them the right of their own motion to compel a railroad to take a street across its tracks at grade.” (People ex rel. City of Niagara Falls v. N. Y. C. & H. R. R. R. Co., 158 N. Y. 410, 413.)

It is clear that subsequent to July 1, 1897, the town authorities alone could not by any formal action turn the old farm crossing into a public crossing at grade. Jurisdiction to do that was vested elsewhere (Railroad Law, § 90). Much less could the town authorities, by casually and informally working a traveled way, so as to make it a highway by user (Speir v. Town of New Utrecht, 121 N. Y. 420), create a public crossing at grade without the authority of the Public Service Commission and against the will of the petitioner. There is no evidence to show that what is now called Kensico avenue was used as a public highway prior to 1902. Kensico avenue outside the boundaries of the railroad right of way may be a public highway; the crossing, however, is not a public crossing. The Public Service Commission was, therefore, without jurisdiction to act under section 53 of the Eailroad Law.

The order of the Appellate Division should be reversed, and the determination of the Public Service Commission annulled, with costs in all courts.

Crane, Ch. J., Lehman, O’Brien, Hubbs, Loughran and Finch, JJ., concur.

Order reversed, etc.


text:
    Robert C. Vernes, Appellant, v. Nathaniel Phillips, Respondent.
    (Submitted January 18, 1935;
    decided February 26, 1935.)

      Otho S. Bowling and Robert H. Elder for appellant.
    Plaintiff made out a case. The fact that the case was made against a lawyer who committed the tort to avenge a pretended injury to his client makes no difference, (Schultz v. Greenwood Cemetery, 190 N. Y. 276; Snead v. Bonnoil, 166 N. Y. 325; Parke v. Fellman, 145 App. Div. 836; Beardsley v. Soper, 184 App. Div. 399.) Lawyers are not privileged to procure others to be unlawfully arrested. (Barker v. Graham, 3 Wils. 368; Deyo v. Van Valkenburgh, 5 Hill, 242; Fischer v. Langbein, 103 N. Y. 84; Codrington v. Lloyd, 8 Ad. & E. 449; Revill v. Pettit, 60 ,Ky. 314; Tiede v. Fukr, 264 Mo. 622.)

      S. S. Goldsmith for respondent.
    The defendant was acting as attorney on behalf of bis client. The arrest was procured by the client and not by the defendant. (Brown v. Chadsey, 39 Barb. 253; Burns v. Erben, 26 How. Pr. 273; Ford v. Williams, 13 N. Y. 577; Hunter v. Burtis, 10 Wend. 358; Benam v. Bernon, 5 Mackey, 18; Miller v. Metropolitan Life Ins. Co., 28 Ky. 223; Roth v. Schupp, 94 Md. 55; Shull v. Boyd, 251 Mo. 452; Waugh v. Dibbens, 61 Okla. 221; McMullin v. Erwin, 69 Vt. 338; Sedley v. Sutherland, 3 Esp. 202.)
   Crouch, J.

The action is for false imprisonment. The defendant is a practicing lawyer. At the close of the plaintiff’s case a motion to dismiss the complaint was granted for insufficiency of proof. The trial judge held that although the defendant had requested the police officers to arrest the plaintiff, he was speaking all the time as a mouthpiece for the woman [his client] who stood there,” and, therefore, incurred no liability. The judgment was unanimously affirmed.

The facts are, briefly, as follows: The plaintiff, together with his wife and daughter, were among the directors of a small corporation. The plaintiff had sent in bis resignation. The defendant, acting as legal adviser to the wife and daughter, was present at the meeting of the directors called to pass upon the resignation. It was reported at the meeting that plaintiff a day or two before had drawn out some money with two checks.” The defendant said “ that was the best thing he could have done for their side of the case; that he would look after the matter and see that Mr. Vernes would make good.” Accordingly, five days later, the defendant went with the wife and daughter to a police station and talked with two detective officers. The defendant did most of the talking. He said the plaintiff had stolen $275; that he drew some money that he was not entitled to and appropriated it to his own use. The officers understood that the defendant was “ counsel for Mrs. Vernes.” They were told that “ they wanted Mr. Vernes arrested.” It was the defendant who made the request. He gave the officers a description of the plaintiff, the number of his automobile and the address where he could probably be found. The officers went to the address, arrested the plaintiff without a warrant and brought him to the station house where he was “ booked and finger-printed.” At that time the defendant said that Mrs. Vernes would make the complaint in the Magistrate’s Court.” Several hours later the plaintiff was discharged under a writ of habeas corpus.

Any imprisonment which is not legally justifiable is a false imprisonment and subjects him who is responsible therefor, whether as principal or as agent, to an action in tort for damages. (Curry v. Pringle, 11 Johns. 444; Taylor v. Trask, 7 Cow. 249; Hunter v. Burtis & Ellsworth, 10 Wend. 358, 362; cf. American Law Institute, Restatement of the Law of Torts, § 35 et seq.) That he who is responsible is an attorney at law does not change the rule. His privilege does not cover the commission of trespass. It cannot be disputed but that an attorney who causes void or irregular process to be issued in an action, which occasions loss or injury to a party against whom it is enforced, is liable for the damages thereby occasioned.” (Fischer v. Langbein, 103 N. Y. 84, 89.) The rule is an ancient one (Barker v. Braham, 3 Wils. 368; Bates v. Pilling, 6 Barn. & Cress. 38), but still valid (Newberry v. Lee, 3 Hill, 523; Deyo v. Van Valkenburgh, 5 Hill, 242).

The question remains, however, as to when and under what circumstances a person may be said to have been responsible for an imprisonment. In Hopkins v. Crowe (7 Car. & P. 373) it was said that if the defendant directed an officer to take the plaintiff into custody, he was liable for false imprisonment; but if he merely made his statement, leaving it to the officer to act or not as he thought proper, he was not liable. That distinction has been followed in this State. (Brown v. Chadsey, 39 Barb. 253; Burns v. Erben, 26 How. Pr. 273, 277; affd., 40 N. Y. 463.) Where an attorney is the actor, the rule, though differently expressed, is not essentially different.1 It is said that if he acts officiously and beyond the scope of his duties as an attorney, he is hable for trespass. (Ford v. Williams, 13 N. Y. 577, 584; 24 N. Y. 359, 365.) He so acts when he requests or directs an arrest (Hunter v. Burtis & Ellsworth, 10 Wend. 358, 362), except, perhaps, in a case where he merely transmits the instructions of his client. (Ford v. Williams, supra.)

We are of the opinion that a prima facie case was made out, and that the plaintiff should not have been nonsuited.

The judgment of the Appellate Division and that of the Trial Term should be reversed and a new trial granted, with costs to abide the event.

Crane, Ch. J., Lehman, O’Brien, Hubbs, Loughran and Finch, JJ., concur.

Judgments reversed, etc.


text:
    In the Matter of Thomas B. Rudd, as District Attorney of Oneida County, Appellant, against Frederick H. Hazard, Individually and as County Judge of Oneida County. Joseph George, Respondent.
    (Argued January 2, 1935;
    decided February 26, 1935.)

      Thomas Brown Rudd, District Attorney (Earl C. Bastow of counsel), for appellant.
    The Special County Judge had no jurisdiction during the absence of the County Judge to act as such. (Matter of Munger, 10 App. Div. 347; People ex rel. Sholes v. Supervisors, 82 Hun, 105; People ex rel. Snyder v. Hylan, 212 N. Y. 236; People ex rel. Western Union Tel. Co. v. Public Serv. Comm., 192 App. Div. 748; Tucker v. Alexandroff, 183 U. S. 424.) A plea of guilty to a crime charged in an indictment can only be taken at a duly constituted term of County Court. (Code Crim. Proc. §§ 296, 333, 335.)

      Leo O. Coupe for respondent.
    The Special County Judge had jurisdiction to hold County Court in the absence of the County Judge from the State. (Laws 1849, ch. 306; Laws 1851, ch. 108; Seymour v. Mercer, 13 How. Pr. 564; Aldinger v. Pugh, 57 Hun, 180; 132 N. Y. 403; Babcock v. Clark, 23 Hun, 391; Kinney v. Roberts & Co., 26 Hun, 166.) A plea of guilty to a crime charged in an indictment is not required to be taken only at a duly constituted term of County Court. (Civ. Prac. Act, § 70; Code Crim. Proc. § 45; People ex rel. Woodin v. Ottaway, 129 Misc. Rep. 120; 222 App. Div. 711; 247 N. Y. 493.)
   Crouch, J.

On December 22, 1931, at a term of the Oneida County Court, duly appointed in accordance with sections 190, 191 and 192 of the Judiciary Law (Cons. Laws, ch. 30), the respondent was arraigned before the County Judge upon an indictment for assault in the first ' degree, and pleaded not guilty. At the close of that day the County Judge adjourned the term to January 5, 1932, at his chambers. From December 23, until after December 31, 1931, he was outside the State of New York. On December 28, 1931, the respondent, accompanied by his own counsel and by the then District Attorney representing the People, appeared before the Special County Judge and thereupon the following proceedings were had: The District Attorney read the indictment and asked respondent if he desired to change his plea thereto; the respondent through his counsel stated that he did desire to change his plea, and that he pleaded guilty to assault in the second degree. The Special County Judge then asked respondent if he had any legal cause to show why the judgment of the court should not be pronounced against him, to which respondent through his counsel replied that he had no legal cause to show, and thereupon the Special County Judge sentenced the respondent to be confined to the Oneida County Jail for one year and to pay a fine of $250. The judgment further provided that execution of the jail sentence should be suspended upon payment of $500 to the complainant who had been assaulted. The proceedings were entered in what purports to be the minutes of the Oneida County Court.

The authority of the Special County Judge so to act having been questioned, this mandamus proceeding was brought to compel the County Judge to expunge from the minutes of the court the proceedings taken before the Special County Judge, and to proceed to trial upon the original plea of not guilty. The application was denied at Special Term. The Appellate Division unanimously affirmed. The appeal is here by permission of this court.

The Special County Judge has power to discharge the duties of the County Judge in cases of vacancy or inability;” and, at all times, he possesses all the powers and may perform the duties which are possessed and can be performed by a County Judge “ out of court.” (Laws of 1849, chap. 306, as amd. by Laws of 1851, chap. 108; Const. art. VI, § 16; Seymour v. Mercer, 13 How. Pr. 564; Kinney v. Roberts & Co., 26 Hun, 166, 172; app. dismissed, 89 N. Y. 601.)

The application herein was based upon two contentions: (1) That the temporary absence of the County Judge constituted neither vacancy nor inability; and (2) that even though the contrary were true, the proceedings were invalid because they were necessarily had before the Judge as such and not in open court at a regular or adjourned stated term thereof.

The decision below was that the absence of the County Judge created inability within the meaning of the Constitution and statute; and that inasmuch as the record now before this Court shows that arraignment of Joseph George was taken before the County Court and entered upon its minutes and that his plea of guilty was ‘ put in by the defendant himself in open court,’ ” the proceedings so had were legal.

We may assume, without so deciding, that owing to the absence of the County Judge, the Special County Judge was vested with the full power and authority conferred by law upon the County Judge. Even so, we think his acts were beyond his jurisdiction, and hence invalid. The minutes of the court relied upon below as conclusively showing a session of the court before the Special County Judge, conflict with the fact, also no doubt shown by the minutes of the court, that the November term had, on December 22, 1931, been adjourned to January 5, 1932, at the chambers of the County Judge. There was and there could be no court session of the County Court for criminal business on December 28, 1931. Section 70 of the Civil Practice Act does not close the gap. That section had its origin in section 31 of the Code of Procedure in 1848. The County Court then was and continued to be solely a civil court until the Constitution of 1894. The Court of Sessions was the county criminal court. The original purpose of the section was, and, so far as appears, its only present purpose is, to give the County Judge in certain matters powers which the Court of Chancery formerly possessed. (Wilcox v. Wilcox, 14 N. Y. 575; Brown v. Snell, 57 N. Y. 286, 292; and see Const, of 1846, art. VI, § 14.)

In any event, the proceedings before the Special County Judge were such as could be had only at a session of a regular or adjourned stated term. Those proceedings consisted of arraignment, plea and judgment. An arraignment must be.“before the court.” (Code Crim. Proc. § 296.) A plea of guilty must be put in “ in open court ” (Code Crim. Proc. § 335), and “ must be entered upon the minutes of the court.” (Code Crim. Proc. § 333.) After a plea of guilty, judgment must be pronounced while the court is in session. (Code Crim. Proc. §§ 471, 472.) The Code provisions merely embody the immemorial usage of the common law. (2 Hale P. C. 216 et seq.; 4 Blackstone Comm. 322 et seq.; Crain v. United States, 162 U. S. 625; People v. Frost, 5 Park. Cr. Rep. 52.) A court, in the sense contemplated by that usage, has been described as “ an organized body, with defined powers, meeting at certain times and places for the hearing and decision of causes and other matters brought before it, and aided in this, its proper business, by its proper officers, viz., attorneys and counsel to present and manage the business, clerks to record and attest its acts and decisions, and ministerial officers to execute its commands and secure due order in its proceedings.” (People ex rel. Choate v. Barrett, 9 N. Y. Supp. 321, 322; affd., 56 Hun, 351; affd., 121 N. Y. 678.) Publicity, not secrecy, in arraignment, plea and judgment is part of our tradition. It is deemed necessary not only for individual security but also in the public interest. (Judiciary Law, § 4; Lee v. Brooklyn Union Pub. Co., 209 N. Y. 245, 248.) Only at stated terms where the general public is advised of the time and place of sessions, both regular and adjourned, is such publicity possible. (Cf. People ex rel. Childs v. Extraordinary Trial Term, 184 App. Div. 829.)

Since the matter is one of jurisdiction, the fact that all parties went voluntarily before the Special County Judge does not change the result. (People ex rel. Battista v. Christian, 249 N. Y. 314; Owasco Lake Cemetery v. Teller, 110 App. Div. 450.)

Finally, to the argument that inconvenience, delay and expense will, in some of the counties of the State, result from our decision, it is perhaps sufficient to point out the virtues of adjournment short of adjournment sine die (Judiciary Law [Cons. Laws, ch. 30], § 7; Matter of Reynolds v. Cropsey, 241 N. Y. 389); or of the appointment under Judiciary Law, section 190, of stated terms one day each week for the transaction of all business not requiring the presence of a jury.

The orders should be reversed and the motion for an order of mandamus granted, without costs.

Crane, Ch. J., Lehman, O’Brien, Hubbs, Loughran and Finch, JJ., concur.

Orders reversed, etc.