text:
    C. Grant Keck, Doing Business as C. Grant Keck Organization, Appellant, v. William J. Evans, Respondent.
    Submitted February 20, 1950;
    decided March 2, 1950.
   Motion for reargument and for a stay denied, with $10 costs and necessary printing disbursements. [See 300 N. Y. 605.]


source: Caselaw Access Project

license: Public Domain

text:
    Sigmund Pines et al., Appellants, v. Lawrence J. Beck, Respondent, and Beck Chemical Equipment Corporation, Impleaded Defendant-Appellant.
    Submitted February 27, 1950;
    decided March 2, 1950.
   Motion for order clarifying opinion denied. [See 300 N. Y. 181.]


text:
    The People of the State of New York, Respondent, v. Irving Friedman, Appellant.
    Argued February 23, 1950;
    decided March 3, 1950.

      Irving Friedman, appellant in person.

      John P. McGrath, Corporation Counsel (Samuel D. Johnson and Seymour B. Quel of counsel), for respondent.
   Judgment affirmed; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessee, JJ.


text:
    The People of the State of New York, Respondent, v. James A. Sullivan, Appellant.
    Argued January 4, 1950;
    decided March 3, 1950.

      Francis A. McGurk for appellant.

      George M. Fanelli, District Attorney (John C. Marbach of counsel), for respondent.
   Judgment affirmed; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ. [See 300 N. Y. 739.]


text:
    Louis B. Jacobson, Respondent, v. Luzon Lumber Co., Inc., et al., Appellants.
    Argued February 22, 1950;
    decided March 3, 1950.

      Samuel PensTci for appellants.

      Lazarus I. Levine and Leo Salon for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lotjghran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Fboessél, JJ. [See 300 N. Y. 754.]


text:
    Bernard Cowen, Appellant, v. Viola S. Stine, Defendant, and Lenora G. Pickens, Respondent.
    Argued February 22, 1950;
    decided March 3, 1950.

      Bernard Cowen, in person, and Robert M. Gowen for appellant.

      Victor Marans and Bernard Phillips for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lotjghban, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Fboessel, JJ.


text:
    Dorothy Jackson, Respondent, et al., Plaintiffs, v. Angelina Giammarino, Appellant.
    Argued February 24, 1950;
    decided March 3, 1950.

      Malcolm J. Hartsell and John P. Wourms for appellant.

      Bernard I. Scherer, Jacob D. Fuchsberg and Frank Korman for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lotjghraet, Ch. J., Lewis, Coetway, Desmoetd, Dye, Ftjld and Froessel, JJ.


text:
    John Peikel, Appellant, v. Grace Line, Inc., Respondent.
    Argued February 22, 1950;
    decided March 3, 1950.

      Jeremiah A. O’Leary, Stephen W. O’Leary and Abraham N. Levy for appellant.

      Raymond Parmer and Vernon Sims Jones for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loughban, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Fboessel, JJ.


text:
    In the Matter of Miss Youth Form Lingerie, Inc., Respondent, against M. Lowenstein & Sons, Inc., Appellant.
    Argued February 23, 1950;
    decided March 3, 1950.

      Irving D. LipJcowitz and William Hughes Lewis for appellant. Samuel E. Harwitz for respondent.
   Order affirmed, with costs; no opinion.

Concur: Lotjghran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ.


author: Conway, J.

text:
    In the Matter of the Claim of Viola Horvat, Respondent. Edward Corsi, as Industrial Commissioner, Appellant.
    Submitted February 21, 1950;
    decided March 3, 1950.

      Nathaniel L. Goldstein, Attorney-General (Francis R. Curran and Wendell P. Brown of counsel); for appellant.
    No appearance for respondent.
   Order affirmed, without costs.

Concur: Lotxghran, Ch. J., Desmond, Dye, Ftjld and Froessel, JJ.; Lewis and Conway, JJ., dissent in opinion by Conway, J., from the affirmance of the order and vote to remit the matter to the Unemployment Insurance Appeal Board.

Conway, J.

(dissenting). The Industrial Commissioner has been granted leave to appeal to this court from an order of the Appellate Division which affirmed a decision of the Unemployment Insurance Appeal Board which had modified a decision of an unemployment insurance referee, which in turn had sustained a determination made by an insurance manager acting for the Industrial Commissioner, affecting one Horvat, a claimant for unemployment insurance benefits.

Section 594 of the Labor Law is entitled “ Reduction of benefits for false statement ” and insofar as applicable here reads as follows: “ A claimant who has wilfully made a false statement or representation to obtain any benefit under the provisions of this article shall forfeit benefits for at least the first twenty but not more than the first eighty effective days following discovery of such offense for which he otherwise would have been entitled to receive benefits.”

Section 621 of the Labor Law is entitled ‘ ‘ Appeals to appeal board.” Subdivision 3 of the section provides: “ Conduct of appeals. The appeal board may decide any case appealed to it under any provision of this article on the basis of the record and of evidence previously submitted in such case, or it may in its discretion hear argument or hold a further hearing, or remand such case to a referee for such purposes as it may direct. If a further hearing is to be held or argument had, the board shall fix a time therefor and shall notify the commissioner and any other party affected who appeared at the hearing before the referee. The board may affirm or reverse, wholly or in part, or may modify the decision appealed from and shall render its decision promptly and shall thereupon send written notice thereof together with the reasons therefor to the commissioner and any other party affected thereby who appeared at the hearing before the referee.”

The facts may be stated briefly. Claimant was discharged by her employer on June 27, 1947. She had been married about two months before that date, and, as she subsequently admitted, she did not wish to work any longer because her husband was earning enough to support her, because she was pregnant and wished to stay at home. She did not leave her job, however, because she realized that she would not then be entitled to unemployment insurance benefits. Accordingly, she deliberately commenced to go late to work and to take time off, in order to compel her employer to discharge her. The plan succeeded and, after several warnings, she was discharged. Immediately thereafter, she filed a claim for unemployment insurance benefits, effective July 1, 1947, and thereafter received twenty-six payments of $21 each through January 8, 1948. While receiving those payments, she was interviewed on August 26, 1947, and falsely stated that she was not pregnant.

On July 2,1948, she refiled for additional unemployment insurance benefits and received one payment. Apparently her application for these additional benefits showed that she had a five-month-old child. That prompted an investigation of her availability for employment. She was interviewed on July 27, 1948, by an “ Insurance Manager ”, at which time, as above indicated, she confessed that she had been pregnant at the time of her discharge and that she had deliberately sought to force her employer to take that action. As a result of the interview, an insurance manager, acting for the Industrial Commissioner, determined that claimant had been unavailable for employment from July 1, 1947, to January 8, 1948, that she had been overpaid the amount of the twenty-six benefit checks totaling $546. The insurance manager also determined that she had wilfully made a false statement regarding her pregnancy on August 26, 1947, for the purpose of receiving benefits. The insurance manager imposed the maximum forfeiture of eighty effective days.

After a hearing, at which testimony was taken, an unemployment insurance referee sustained the initial determinations, stating in his decision:

“ Claimant was pregnant in June, 1947, and by reason of that fact, it was her desire to withdraw from the labor market and remain at home. She did not want to quit her job because quitting would jeopardize her claim for unemployment insurance benefits. She therefore admittedly embarked upon a deliberate plan to bring about her discharge and was successful. Having succeeded in her plan of being discharged, claimant registered for benefits immediately and denied the fact that she was pregnant and continued to certify for benefits until she exhausted her benefit rights in January, 1948. Claimant’s conduct in procuring her discharge because she was pregnant was tantamount to a withdrawal from the labor market on her part and rendered her unavailable for employment from the date of her discharge. Claimant’s signed statement that she was not pregnant on August 26,1947, constituted a wilful misrepresentation by her for the purpose of obtaining benefits. Claimant has been overpaid benefits received in the sum of $546. The; imposition of an 80-day penalty for wilful false statement was correct.”

Claimant thereupon appealed to the Unemployment Insurance Appeal Board which modified the decision by reducing the eighty-day penalty to a twenty-day penalty. In its decision the appeal board stated: After a careful review of the record, testimony and evidence adduced before the referee, and due deliberation having been had thereon, and having found that the referee’s findings of fact and conclusions of law are fully supported by the evidence in this case, and that no errors of fact or law appear to have been made, the Board adopts the findings of fact and the conclusions of law made by the referee as the findings of fact and conclusions of law of this Board, except the penalty for the misrepresentation is hereby reduced from 80 forfeit days to 20 forfeit days (Appeal Board, 12, 152-45).

“ OPINION:

“ The Board is of the opinion that the referee made proper findings of fact and correctly determined the issue involved in this case, except as modified herein.

“ DECISION:

“ The decision of the referee, as modified, is affirmed.” (Emphasis supplied.)

The Industrial Commissioner contends that the Unemployment Insurance Appeal Board had no power. to reduce the amount of the forfeiture in the absence of a finding by the appeal board, with evidence to sustain it, that the initial determination by the commissioner was arbitrary or capricious or that there was an abuse of discretion.

The Appellate Division unanimously rejected this contention, saying (Deyo, J.): “ Although the Industrial Commissioner has authority to make initial determinations, including the right to fix penalties, his discretion in such matters is not absolute, but is subject to a review by a referee and by the Unemployment Insurance Appeal Board, which is specifically given the authority to affirm, reverse or modify (Unemployment Insurance Law, § 621, subd. 3). There is no limitation on this right which would prevent the board from modifying a penalty, even in the absence of a finding that the initial determination of the commissioner was arbitrary or capricious.” (275 App. Div. 442, 443.)

We agree with the opinion of the Appellate Division in the quotation just made. The statutory scheme of article 18 of the Labor Law contemplates that the Industrial Commissioner acting through his insurance managers scattered throughout the State, shall make “ initial determinations ” after finding the facts and exercising permissible discretion. Then, on appeal to the referee and later to the appeal board, the statute contemplates a complete review of all disputed questions of fact, of discretion, and of law. We find no limitation, either expressly or by implication, upon the power of the referee and the appeal board to review the initial determinations of those acting for the commissioner. We see no reason for reading such a limitation into the statute. On the contrary, we think there is sound basis for holding that there should be plenary power to review facts and discretion by the referee and the appeal board within the administrative agency, and we think that is what the Legislature intended.

We turn now to the provision of subdivision 3 of section 621 quoted (supra), which reads in part: “ The board may * * * modify the decision appealed from * * * and shall thereupon send written notice thereof together with the reasons therefor to the commissioner and any other party affected thereby who appeared at the hearing before the referee.” (Emphasis supplied.) That requirement is a sound one and was intended by the Legislature to promote efficiency within the administrative body and to be for the guidance of the Industrial Commissioner. The appeal board, created by the Legislature, was obligated to obey that command. That it did not do in this ease. It gave no reason. It is urged that when the appeal board wrote into its decision as we have quoted it (supra), “ (Appeal Board, 12, 152-45) ” that that was the reason. It appears that there was such a case. There a bricklayer had not disclosed the fact that while receiving unemployment insurance benefits he had been employed on three days by his regular employer and had earned $39.38 for those days. There was imposed by the local office a forfeiture of eighty effective days upon the ground that the claimant wilfully made a false statement. The appeal board upheld that finding but determined that the maximum penalty was an abuse of discretion and was arbitrary, unreasonable and harsh. It reduced the penalty to twenty effective days. In the course of its decision the appeal board wrote: “ In the numerous eases under this section of the Law which have been appealed to the Board, the penalties imposed by the various local offices throughout the state have been in conformity with the schedule set forth in the aforesaid ‘ Local Office Procedures,’ that is, twenty effective days for the first offense, forty-four effective days for the second offense, seventy-two effective days for the third offense, etc. We know of no case where the maximum penalty of eighty effective days was imposed against a claimant for one offense. It is significant that said ‘ Local Office Procedures ’ provide that ‘ An essential factor in determining the gravity of an offense is the number of offenses committed.’ ”

It is urged that this paragraph constitutes the reason for the reduction of the penalty in the instant case from eighty to twenty effective days. We think it is no reason at all. The Legislature has commanded that the appeal board send its reasons for modification to the commissioner and any other affected party who appeared before the referee. The appeal board has responded with a schedule set forth in its ‘ ‘ Local Office Procedures It has rewritten the statute so that the flagrancy and quality of the offense is of no moment. Neither is the amount of money of which the State has been deprived. The wrongdoings are to be considered only by quantity. A number are anticipated, even to the point where those above three are referred to as “ etc. ”

The procedure here was not in accord with the legislative command and the matter should be remitted to the appeal board for proper action.


text:
    Carol Crane, an Infant, by Vivian Crane, Her Guardian ad Litem, et al., Respondents, v. Long Island Rail Road Company, Appellant. (Action No. 1.) Vivian Crane, as Administratrix of the Estate of Caren Crane, Deceased, Respondent, v. Long Island Rail Road Company, Appellant. (Action No. 2.)
    Argued February 22, 1950;
    decided March 3, 1950.

      William F. McNulty, John McKim Minton and Richard R. Bongárts for appellant.

      Ralph Stout and Harry H. Lipsig for respondents.
   Judgments affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ.


text:
    In the Matter of Leon Rosenbluth, Respondent, against Maurice Finkelstein et al., Constituting the Temporary City Housing Rent Commission of the City of New York, Appellants.
    Submitted February 27, 1950;
    decided March 3, 1950.

      Tobias Weiss, Nathan W. Math, Joseph Jay and Alfred Weinstein for appellants.

      Victor Whitehorn and Jules Whitehorn for respondent.
   Motion to dismiss appeal denied. [See 300 N. Y. 402.]


text:
    Hazard L. Brown, Respondent, v. Cora I. Brown et al., Appellants.
    Submitted February 20, 1950;
    decided March 3, 1950.

      Charles B. Bradbury for motion.

      Michael J. Larkin and George B. Grow opposed.
   Motion to dismiss appeal granted and appeal dismissed, with costs and $10 costs of motion, unless appellants serve and file an undertaking on appeal and pay $10 costs within ten days, in which events motion denied.


text:
    The People of the State of New York, Respondent, v. Julio Ramirez Perez, Appellant.
    Submitted April 3, 1950;
    decided April 4, 1950.
   Motion for order pursuant to sections 503 and 504 of the Code of Criminal Procedure granted. [See 300 N. Y. 208.]


text:
    In the Matter of the Claim of Margaret E. McCarthy, Widow, on Behalf of Herself and John P. McCarthy and Others, Infants, Respondent, against Remington Rand, Inc., Appellant. Workmen’s Compensation Board, Respondent.
    Argued March 1, 1950;
    decided April 6, 1950.

      Martin F. Kendrick for appellant.

      Nathaniel L. Goldstein, Attorney-General (Gilbert M. Landy, Wendell P. Brown and Boy Wiedersum of counsel), for Workmen’s Compensation Board, respondent.
   Order affirmed, with costs to the Workmen’s Compensation Board; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye. Fuld and Froessel, JJ.


text:
    Williams Institutional Colored Methodist Episcopal Church, Respondent, v. City of New York, Appellant.
    Argued March 2, 1950;
    decided April 6, 1950.

      John P. McGrath, Corporation Counsel (Morris Handel and William F. Murphy of counsel), for appellant.

      William C. Chanler and Thomas C. Fogarty for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lotjghban, Ch. J., Lewis, Conway, Desmond, Dye, Ftjld and Fboessel, JJ.


text:
    Roberts Numbering Machine Company, Inc., Respondent, v. Black Heat Electric Corporation, Appellant.
    Argued February 28, 1950;
    decided April 6, 1950.

      Bernard A. Finkel, William 8. Bennet and Victor Souse for appellant.

      Senry W. Steingarten and Louis C. Bernst for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loughrah, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ.


text:
    Ruta Berkson, Appellant v. Village of Richfield Springs, Respondent. William J. Berkson, Appellant, v. Village of Richfield Springs, Respondent. (Consolidated Actions.)
    Argued March 2, 1950;
    decided April 6, 1950.

      Louis E. KroTm for appellants.

      Livingston 8. Latham for respondent.
   Judgments reversed and a new trial granted, with costs to abide the event, upon the ground that there was evidence of breach of duty by the defendant which was proper for submission to the jury. No opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ.


text:
    In the Matter of the Estate of Richard Kornacki, Deceased. Joseph Kornacki, as Limited Administrator of the Estate of Richard Kornacki, Deceased, Appellant; Bernard Behringer, Respondent.
    Counsel appeared February 23, 1950;
    decided April 6, 1950.

      Emanuel Boasberg, Jr., for appellant.

      Jean A. Martin and Charles P. Maxwell for respondent.
   Appeal dismissed upon the ground that the order does not finally determine the proceeding within the meaning of the Constitution. No opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessbl, JJ.


text:
    In the Matter of George Kohn, as Executor of Henry W. Prosser, Deceased, Appellant, against Spencer E. Bates, as Commissioner of Taxation and Finance of the State of New York, Respondent.
    Argued February 27, 1950;
    decided April 6, 1950.

      George KoTm, appellant in person.

      Nathaniel L. Goldstein, Attorney-General (Irving I. Waxman and Wendell P. Brown of counsel), for respondent.
   Order affirmed, .without costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ.


text:
    In the Matter of James Quinlan, Appellant, against William Reid et al., Constituting the Board of Transportation of the City of New York, et al., Respondents.
    Argued March 2, 1950;
    decided April 6, 1950.

      Charles Belous and Irving Lemov for appellant.

      John P. McGrath, Corporation Counsel (Helen B. Cassidy and Seymour B. Quel of counsel), for respondents.
   Order affirmed, with costs; no opinion.

Concur: Loughean, Oh. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ.


text:
    William L. Clay, Suing on Behalf of Himself and All Others Similarly Situated, Appellant, v. County of Monroe et al., Respondents.
    Argued February 21, 1950;
    decided April 6, 1950.

      William L. Glay, appellant in person.

      Robert Granville Burlce, Joseph B. Boyle, Joseph D. Mc-Goldrich and Emmanuel Dannett for respondents.
   Appeal dismissed, with costs, on the ground that the appeal involves questions other than the constitutional validity of statutes. No opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ.


text:
    New York Public Library, Astor, Lenox and Tilden Foundations, Respondent, v. City of New York, Appellant, and New York State Employees’ Retirement System et al., Respondents.
    Argued February 28, 1950;
    decided April 6, 1950.

      John P. McGrath, Corporation Counsel (Seymour B. Quel, W. Bernard Richland and William E. Walsh of counsel), for appellant.

      Robert A. West and E. Sheldon Stewart for plaintiff, respondent.

      Nathaniel L. Goldstein, Attorney-General (Samuel A. Hirshowitz and Wendell P. Brown of counsel), for New York State Employees’ Retirement System and another, respondents.
   Judgment affirmed, without costs; no opinion.

Concur: Loughban, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Feoessel, JJ.


text:
    In the Matter of the Claim of Anne Kristiansen, Appellant, for Death Benefits under the Workmen’s Compensation Law, against Frank McWilliams, Inc., et al., Respondents.
    Argued March 1, 1950;
    decided April 6, 1950.

      Michael H. Grae and Jesse D. Berman for appellant.

      Charles P. Barre for respondents.
   Order affirmed, without costs; no opinion.

Concur :■ Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ.


text:
    In the Matter of Leo Pinkwater et al., Appellants, against Lazarus Joseph, as Comptroller of the City of New York, Respondent. In the Matter of Sadie Cavanagh et al., Appellants, against Lazarus Joseph, as Comptroller of the City of New York, Respondent.
    Argued March 2, 1950;
    decided April 6, 1950.

      T. Robert Gabrielli for Leo Pinkwater and others, appellants. David A. Savage and Donald A. Savage for Sadie Cavanagh and others, appellants.

      John P. McGrath, Corporation Counsel (Howard C. Fischbach and Seymour B. Quel of counsel), for respondent.
   Order affirmed, with costs; no opinion.

Concur: Lottghran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ.


text:
    In the Matter of Rest Right Slipper Co., Inc., Tenant, Appellant. Rebecca Barocas et al., Doing Business as Vicmor Realty Company, Landlords, Respondents.
    Argued March 2, 1950;
    decided April 6, 1950.

      Leon London for appellant.

      Robert E. Tinsley for respondents.
   Order affirmed, with costs; no opinion.

Concur: Loughban, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Fboessel, JJ.


text:
    Anna Lewis, Appellant, v. Hester Stevenson et al., as Executors of George Stevenson, Deceased, Respondents.
    Submitted February 21, 1950;
    decided April 6, 1950.

      Henry L. Nowvé and Raymond L. Nowvé for appellant.

      Melvel W. Snitow and Sydney Snitow for respondents.
   Appeal dismissed upon the ground that no appealable paper appears in the record. No opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ.


author: Fboessel, J.

text:
    William Middleton, Plaintiff, v. City of New York, Defendant and Third-Party Plaintiff-Appellant. Hunter L. Delatour et al., as Trustees of Long Island Rail Road Company, Third-Party Defendants-Respondents.
    Argued February 28, 1950;
    decided April 6, 1950.

      John P. McGrath, Corporation Counsel (Stanley Buchsbcvum and Seymour B. Quel oí counsel), for appellant.

      William J. O’Brien, Bichard R. Bony arts and Ralph E. Marson for respondents.
   Judgment affirmed, with costs.

, Concur: Lottghban, Ch. J., Lewis, Conway, Dye and Fund, JJ. Feoessel, J., dissents, in the following opinion in which Desmond, J., concurs.

Fboessel, J.

(dissenting). A majority of the court hold the view that, under the pleadings in this case, the appellant, City of New York, and the ■ third-party defendant-respondent railroad which it has impleaded, are joint tort-feasors in pari delicto, and that impleader under section 193-a of the Civil Practice Act should not be allowed. I am unable to concur in this conclusion; ■

I agree, of course, that a third-party complaint which shows on its face that the defendant and the third-party are joint tortfeasors in pari delicto mush be dismissed, in the absence of a relation between the parties to the third-party action, based upon a contract of indemnity. However, where it cannot be determined as a matter of law upon the pleadings alone that the parties to the third-party action are in pari delicto, we should sustain the'third-party complaint, and leave that question for determination at the trial upon the evidence as may be there adduced (Schlemovitz v. City of New York, 274 App. Div. 1064). It is better under such circumstances to allow the causes of action to stand awaiting trial (Cosgrove v. City Ice & Fuel Co., 275 App: Div. 1030); otherwise, the liberal provisions of the 1946 impleader amendment would be emasculated, the flexibility which the Legislature intended to provide in our impleader practice destroyed, and the term is or may be liable ” (subd. 1) as used therein rendered nugatory. The former statute (Civ. Prac. Act, § 193, subd. 3, repealed by L. 1946, ch. 971) required a showing that the third-party defendant is or will be liable ” to the defendant for the judgment or part thereof which the plaintiff may recover against him. The change in language is not without significance.

Under the former statute,-the applicant was obliged to make out a definite prima facie case of liability over (Lumber Mut. Cas. Ins. Co. v. Roberts, 266 App. Div. 749; Kromback v. Killian, 215 App. Div. 19). The duty to make out such a case has clearly been obviated by the substituted language “is or may be liable ”, by the use of which it would appear that the Legislature intended to permit the interposition of a third-party claim,'at least ás a matter of pleading, where there “may be” liability over, such as for indemnification on common-law principles by the third-party defendant as an active wrongdoer (Twelfth Annual Report of'N. Y. Judicial Council, 1946, pp: 192, 202-203).

In the case at bar the complaint contains two broad claims of liability against the city: (1) that it negligently “ caused and permitted pools, puddles, a large collection of water, debris, muck, slime and foreign matter to accumulate and collect upon that portion of Kings Highway located ” in the vicinity of a trestle or overhead structure of the Long Island Rail Road Company; and (2) that it caused and permitted a depression, a difference in levels and an unevenness to remain in said highway, causing the accumulations aforesaid, particularly in the vicinity of a clogged and improperly functioning catch basin — as the result of which the windshield on plaintiff’s truck became wet, blurred and obstructed, and the brakes became wet, whereby plaintiff lost control of his automobile.

Since it may develop upon the trial that the proximate cause of the accident was, as claimed by the city, the active negligence of the railroad attributable to the first of the above grounds pleaded in the complaint, and that the city was merely passively negligent, surely impleader should be permitted. While the city may not escape liability to the plaintiff, the railroad may be liable over to it. In Lobello v. City of New York (294 N. Y. 816) we affirmed the Appellate Division (268 App. Div. 880), which modified the determination below by granting judgment in favor of the City of New York against the contractor as prayed for in the city’s cross complaint. The Appellate Division there held that the proximate or immediate cause of injury to the plaintiff was the negligent act of the contractor, the active wrongdoer, and the City of New York was guilty of passive negligence only. (See, also, City of Rochester v. Campbell, 123 N. Y. 405, 411; Village of Port Jervis v. First Nat. Bank, 96 N. Y. 550; City of Rochester v. Montgomery, 72 N. Y. 65; Tremblay v. Harmony Mills, 171 N. Y. 598; Kaplan v. City of New York, 269 App. Div. 856.)

Subdivision 5 of section 193-a of the Civil Practice Act provides in substance that where a verdict in favor of a plaintiff against the original defendant might be rendered upon a ground which does not support the claim which the latter has asserted against the third-party defendant, the court must, on a motion of either the third-party plaintiff or the third-party defendant, instruct the jury to make appropriate special findings with respect to the ground of the third-party plaintiff’s liability. Thus a procedure has been devised to permit the court to ascertain whether the verdict in favor of the plaintiff is based upon the ground which entitles the defendant to liability over from the third-party defendant for the latter’s active negligence.

The order of Special Term denying the motion was proper, and the order of reversal of .the Appellate Division “ on the law ” was error. The judgment appealed from should be reversed, and the motion denied, with costs.


text:
    In the Matter of Guardian Life Insurance Company of America, Appellant, against Alger B. Chapman et al., Constituting the Tax Commission of the State of New York, Respondents.
    Submitted February 20, 1950;
    decided April 6, 1950.

      Ferdinand Tannenbaum, James F. Donnelly, Merwin Lewis and Joseph H. Grown for motion for leave to appeal and James F. Donnelly in opposition to motion to dismiss appeal.

      Nathaniel L. Goldstein, Attorney-General (John G. Grary, Jr., and Wendell Brown of counsel), in opposition to motion for leave to appeal and for motion to dismiss appeal taken as of right.
   Motion for leave to appeal dismissed, with $10 costs and necessary printing disbursements, upon the ground that an appeal lies as of right.

Motion to dismiss appeal denied.


text:
    In the Matter of the Estate of Gustave Herter, Deceased. Tom C. Clark, Attorney General of the United States, as Successor to the Alien Property Custodian, Appellant; Paul Van Anda, as Administrator with the Will Annexed of Gustave Herter, Deceased, et al., Respondents.
    Submitted February 27, 1950;
    decided April 6, 1950.
   Motion for reargumeiit denied, with $10 costs and necessary printing disbursements. [See 300 N. Y. 532.]


text:
    Harry Van Arsdale, Jr., Respondent, v. Albert J. Fitzgerald, as President of United Electrical Radio and Machine Workers of America, C.I.O., Appellant, et al., Defendants.
    Submitted April 3, 1950;
    decided April 6, 1950.

      Frank Sclieiner for motion.

      Harold Stern opposed.
   Motion dismissed, with $10 costs and necessary printing disbursements, upon the ground that the order does not finally determine the action- within the meaning of the Constitution.


text:
    Tillie Eiferman et al., Appellants, v. City of New York, Defendant. Di Lorenzo & Albert, Respondents.
    Submitted April 3, 1950;
    decided April 6, 1950.

      Leo Genzer and A. H. Waisman for motion.

      Harry M. Alfert opposed.
   Motion dismissed upon the ground,that an appeal lies as of right.


text:
    Maxwell Palmer et al., Doing Business under the Name of Linden Pharmacy, et al., Respondents, v. Sam B. Angert, Doing Business under the Name of Angert’s Cut Rate Drug, Appellant.
    Submitted April 3, 1950;
    decided April 6, 1950.

      Abraham Sarason. for motion.
    No one opposed.
   Motion granted and appeal dismissed, with costs and $10 costs of motion, upon the ground that the order does not finally determine the action within the meaning of the Constitution.


text:
    The People of the State of New York, Respondent, v. James A. Sullivan, Appellant.
    Submitted April 3, 1950;
    decided April 6, 1950.
   Motion for reargument or, in the alternative, to amend the remittitur denied. [See 300 N. Y. 696.]


text:
    Lecouna Cuban Boys, Inc., et al., Respondents, v. Kiamesha Concord, Inc., Defendant and Third-Party Plaintiff-Respondent. United States Fidelity and Guaranty Company, Third-Party Defendant-Appellant.
    Submitted April 3, 1950;
    decided April 6, 1950.

      James M. Gilleran and John J. O’Gonnor for motion.

      William A. Hyman for plaintiffs-respondents, opposed.

      Morris M. Oppenheim for defendant and third-party plaintiff-respondent, opposed.
   Motion dismissed, with $10 costs and necessary printing disbursements, upon the ground that the order does not finally determine the action within the meaning of the Constitution.


text:
    The People of the State of New York, Respondent, v. John R. Alex, Appellant.
    Submitted April 3, 1950;
    decided April 6, 1950.

      Frank 8. Hogan, District Attorney (Whitman Knapp of counsel), for motion.

      John R. Alex, defendant in person, opposed.
   Motion granted and appeal dismissed.


text:
    Industrial Bank of Commerce, Respondent, v. Chester Shapiro, Appellant.
    Submitted April 3, 1950;
    decided April 6, 1950.

      John J. Dwyer for motion.

      Morris M. Oppenheim opposed.
   Motion granted and appeal dismissed, with costs and $10 costs of motion, unless appellant,, within ten days, serves and files an undertaking on appeal and pays $10 costs, in which events motion denied.


text:
    In the Matter of the Claim of Mabel G. Gordon, Claimant, against New York Life Insurance Company et al., Respondents. Workmen’s Compensation Board, Appellant.
    Submitted April 3, 1950;
    decided April 6, 1950.
   Motion for reargument and for a stay denied, with $10 costs and necessary printing disbursements. [See 300 N. Y. 652.]


text:
    Lucy Latham et al., on Behalf of Themselves and Others Similarly Situated, Appellants, v. Father Divine et al., Defendants, and David Diamond et al., Individually and as Administrators with the Will Annexed of Mary S. Lyon, Deceased, Respondents.
    Submitted April, 3, 1950;
    decided April 6, 1950.

      Joseph J. Schwartz for motion. :
    No one opposed.. ,
   Motion granted and appeal dismissed, with costs and $10 costs of motion, upon the ground that the order does not finally determine the action within the meaning of, the Constitution.


text:
    Stanley Majka, Appellant, v. George A. Haskell et al., Defendants, and City of Buffalo, Respondent.
    Submitted April 3, 1950;
    decided April 6, 1950.

      Fred G. Maloney, Corporation Counsel (Bart J. Shanahan of counsel), for motion to dismiss appeal and in opposition to motion for leave to prosecute appeal as a poor person.

      Edward B. Horning for motion for leave to prosecute appeal as a poor person and in opposition to motion to dismiss appeal.
   Motion to dismiss áppeal for lack of prosecution denied. Case set down for argument during the first week of the May, 1950, session. Motion for leave to prosecute appeal as poor person granted.


text:
    Armand Marcucilli et al., Respondents, v. John Nichols, Appellant, et al., Defendants.
    Submitted April 3, 1950;
    decided April 6, 1950.

      Samuel La Rosa for motion.

      Melvel W. Snitow and Sydney Snitow opposed.
   Motion granted and appeal dismissed, with costs and $10 costs of motion, upon the ground that the order does not finally determine the action within the meaning of the Constitution.


text:
    Henry Iscovitz et al., Appellants, v. Joseph Paletta, Respondent.
    Argued February 20, 1950;
    reargument ordered April 13, 1950.

      Henry N. Rapaport, Robert S. Garson and John F. X. Hassett for appellants.

      Harold M. Weinberg for respondent.

      Nathan W. Math, Stanley Buchsbaum, Joseph Jay and Alfred Weinstein for Temporary City Housing Rent Commission of the City of New York, amicus curice, in support of respondent’s position.
   Reargument ordered to be heard during the session to begin May 15, 1950. Counsel are requested upon reargument to discuss the effect of the new State Rent Control Law [L. 1950, ch. 250] upon this appeal.


text:
    Leon Leighton et al., as Trustees, Landlords, Appellants, v. Morris Jawrower, Tenant, Respondent.
    Argued February 20, 1950;
    reargument ordered April 13, 1950.

      Barnet Kaprow for appellants.

      Leo Isacsoh, Benjamin Weinberger and Phyllis Shelly Jaffe for respondent.

      John P. McGrath, Corporation .Counsel (Anthony Curreri, Stanley Buchsbaum and Alfred Weinstein of counsel), for City of New York, and Nathan W. Math for Temporary City Housing Rent Commission of the City of New York, amici curiae, in support of respondent’s position.
   Reargument ordered to be heard during the session to begin May 15, 1950. Counsel are requested upon reargument to discuss the effect of the new State Rent Control Law [L. 1950, ch. 250] upon this appeal.


text:
    F. T. B. Realty Corporation, Landlord, Appellant, v. Louis Goodman, Tenant, Respondent.
    Argued February 20, 1950;
    reargument ordered April 13, 1950.

      Robert 8. Fougner and Osborne A. McKegney for appellant.

      Ed Dupree, General Counsel (Nathan Siegel and Louise F. McCarthy of counsel), for Office of Housing Expediter, amicus curice, in support of appellant’s position.

      Robert H. Schaffer for respondent.

      John P. McGrath, Corporation Counsel (Anthony Curreri of counsel), for City of New York, and Nathan W. Math for Temporary City Housing Rent Commission of the City of New York, amici curice, in support of respondent’s position.
   Reargument ordered to be heard during the session to begin May 15, 1950. Counsel are requested upon reargument to discuss the effect of the new State Rent Control Law [L. 1950, ch. 250] upon this appeal.


text:
    Bordo Corporation, Landlord, Appellant, v. Ephraem D. Witty, Tenant, Respondent.
    Argued February 20, 1950;
    reargument ordered April 13, 1950.

      Ruth Rcmson for appellant.

      Walter Feldesmcm and Joseph G. Abramson for respondent.

      Nathan W. Math, Joseph Jay and Alfred Weinstein for Temporary City Housing Rent Commission of the City of New York, amicus curice, in support of respondent’s position.
   Reargument ordered to be heard during the session to begin May 15, 1950. Counsel are requested upon reargument to discuss the effect of the new State Rent Control Law [L. 1950, ch. 250] upon this appeal.


text:
    Katherine Fedon, Appellant, v. Continental Casualty Company, Respondent.
    Argued April 3, 1950;
    decided April 13, 1950.

      Walter E. Dillon for appellant.

      Andrew EcJcel for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ.


text:
    In the Matter of David A. Fay, Appellant, against William P. O’Brien, as Police Commissioner of the City of New York and Chairman of the Board of Trustees of the Police Pension Fund of the City of New York, et al., Respondents.
    Argued April 5, 1950;
    decided April 13, 1950.

      David A. Fay, in person, and Saul I. Radin for appellant.

      John P. McGrath, Corporation Counsel (Stanley Buchsbaum and Seymour B. Quel of counsel), for respondents.
   Order affirmed, with costs; no opinion.

Concur: Lotjghran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Frobssel, JJ.


text:
    Thos. Wolstenholme Co., Appellant, v. Ria Herlinger Fabrics, Inc., Respondent.
    Submitted April 3, 1950 >
    decided April 13, 1950.

      Harry Polilcoff and Abraham Shamos for motion.

      Louis Ohin opposed.
   Motion dismissed, with $10 costs and necessary printing disbursements, . upon the ground that the order does not finally determine the action within the meaning of the Constitution.


text:
    The People of the State of New York ex rel. New York, Ontario and Western Railway Company, Respondent, against Sam Rosenshein et al., as Assessors of the Town of Fallsburgh, Sullivan County, et al., Appellants.
    Submitted April 3, 1950;
    decided April 13, 1950.
   Motion for reargument or, in the alternative, to amend the remittitur denied, with $10 costs and necessary printing disbursements. [See 300 N. Y. 74.]


text:
    N. Matthew Fullam, Appellant, v. Westchester County Playland Commission, Respondent. (2 Cases.)
    Submitted April 3, 1950;
    decided April 13, 1950.

      George B. Fargis for motion.
    No one opposed.
   Motion denied, without costs, on the ground that no substantial constitutional question is presented in the appeal taken as of right pursuant to clause (a) of subdivision 1 of section 588 of the Civil Practice Act.


text:
    The People of the State of New York, Respondent, v. Paul Vaccaro, Appellant.
    Submitted April 10, 1950;
    decided April 13, 1950.

      Frank 8. Hogan, District Attorney (Whitman Knapp of counsel), for motion.
    No one opposed.
   Motion granted and appeal dismissed.


text:
    Louis B. Jacobson, Respondent, v. Luzon Lumber Co., Inc., et al., Appellants.
    Submitted April 10,1950;
    decided April 13, 1950.
   Motion for reargument or, in the alternative, to amend the remittitur denied, with $10 costs and necessary printing disbursements. [See 300 N. Y. 697.]


text:
    City of New Rochelle, Respondent, v. Alice S. Stevens, as Administratrix with the Will Annexed of Charles G. Banks, Deceased, Appellant.
    Submitted April 10, 1950;
    decided April 13, 1950.

      Aaron Simmons, Corporation Counsel (Francis S. Claps of counsel), for motion.
    No one opposed.
   Motion granted and appeal dismissed, with costs and $10 costs of motion, upon the ground that no substantial constitutional question is presented.


text:
    Alex Pisciotta, Appellant, v. City of New York, Respondent, et al., Defendants.
    Submitted April 10,1950;
    decided April 13, 1950.
   Motion for reargument denied. Motion to amend the remittitur granted. Return of remittitur requested and when returned it will be amended by adding thereto the following: “ Upon this appeal there was presented and necessarily passed upon a question of the interpretation of a Federal Statute, namely, the Federal Soldiers and Sailors Civil Relief Act (U. S. Code, tit. 50, Appendix, § 510 et seq.). This Court held that the federal statute did not supersede or suspend the provisions of the Administrative Code of the City of New York, Section 93C-2.0.” [See 300 N. Y. 664.]


text:
    In the Matter of the Accounting of Olive B. Seaman et al., as Trustees under the Will of Frank Seaman, Deceased. Philip Seaman, Individually, et al., Appellants; Olive B. Seaman, Individually, Respondent.
    Argued April 5, 1950;
    decided April 14, 1950.

      Richard B. Overbagh and N. LeVan Haver for appellants.

      Harry H. Flemming for respondent.

      Bern Budd for successor trustee.
   Order affirmed, with costs to the respondent Olive Brown Seaman payable out of the estate. No opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, Fuld and Froessel, JJ.


text:
    The People of the State of New York, Respondent, v. Thomas Daghita, Appellant.
    Submitted April 10, 1950;
    decided April 14, 1950.

      Frederick B. Bryant, District Attorney, for motion to dismiss appeal.

      Victor Levine for motion for enlargement of time to argue and in opposition to motion to dismiss appeal.
   Motion to dismiss appeal denied. Motion for enlargement of time granted and case set down for argument during the second week of the session to begin May 15,1950.


author: Loughran, Ch. J. Desmond, J.

text:
    United States Trust Company of New York, as Sole Surviving Trustee of the Trusts Created for Harry P. Bingham and Others by Oliver H. Payne, Plaintiff, v. Harry P. Bingham et al., Defendants. Dorothy L. Kniffin, as General Guardian of the Property of Norah Knight and Another, Infants, Appellant; United States Trust Company of New York, as Executor and Trustee, et al., Respondents.
    Argued January 12, 1950;
    decided April 13, 1950.

      Mortimor S. Gordon, Julius Henry Cohen, Harry Balterman and Albert I. Da Silva for appellant.
    I. The conflict of interest disqualified the trust company. The beneficiaries of the Ledyard, Jr., estate were therefore necessary parties. (Meinhard v. Salmon, 249 N. Y. 458; Earle v. Earle, 93 N. Y. 104; Matter of Kohler, 231 N. Y. 353; Agne v. Schwab, 123 App. Div. 746; Matter of Miner, 39 Misc. 605; Riggs v. Cragg, 89 N. Y. 479; Fisher v. Banta, 66 N. Y. 468; Walker v. Devereaux, 4 Paige Ch. 229; Matter of Eitingon, 70 N. Y. S. 2d 883, 270 App. Div. 1009, 296 N. Y. 842.) II. Substantial questions of fact remain to be tried before the right of Ledyard, Jr’s., estate to commissions on the increment to corpus can be determined as a matter of law. (Matter of Richardson, 250 App. Div. 199; Matter of Hawley, 142 Misc. 396.) III. The trust company’s breach of trust cannot be interred. (Meinhard v. Salmon, 249 N. Y. 458.) IV. Vacating the judgment is the only real remedy. (Wendt v. Fischer, 243 N. Y. 439; Matter of Raymond v. Estate of Davis, 248 N. Y. 67.)

      John M. Harlan and James E. Nickerson for United States Trust Company of New York, respondent.
    Appellant’s wards were not necessary parties to the within action. The proper forum for the litigation of the charges against the executor is in the pending proceedings in the Surrogate’s Court, Nassau County. (Fisher v. Banta, 66 N. Y. 468; Matter of Hodgman, 69 Hun 484, 140 N. Y. 421; Matter of Fletcher, 173 Misc. 711; Matter of Chyat, 60 N. Y. S. 2d 390.)

      Emil Morosini, Jr., and R. Emmet Digney, in person, for R. Emmet Digney, respondent.
    I. There was no defect of parties in this action. (Matter of Straut, 126 N. Y. 201; Jackson v. Tallmadge, 246 N. Y. 133; Bump v. Gilchrist, 52 Hun 6, 127 N. Y. 668; Wetmore v. Hegeman, 88 N. Y. 69; Korn v. Metropolitan Elevated Ry. Co., 59 Hun 505, 129 N. Y. 648; Roberts v. New York Elevated R. R. Co., 155 N. Y. 31; Colorado & Southern Ry. Co. v. Blair, 214 N. Y. 497; Havana City Ry. Co. v. Ceballos, 49 App. Div. 263; First Nat. Bank of Glens Falls v. Parks, 245 App. Div. 776, 270 N. Y. 506; Bulova v. E. L. Barnett, Inc., 194 App. Div. 418.) II. In this action, the executor of the estate of Ledyard, Jr., the deceased cotrustee, was obliged to account only to the beneficiaries of the Payne trusts for the acts of said deceased cotrustee, and there could not be litigated therein any question concerning such executor’s responsibility or accountability to the distributees of said deceased trustee’s estate. III. There is no legal ground for the allowance of additional compensation to the estate of the deceased trustee. (Matter of Bushe, 227 N. Y. 85; Matter of Barker, 230 N. Y. 364; Matter of Reckford, 181 Misc. 211; Matter of Wandling, 181 Misc. 292; Matter of Mohr, 167 Misc. 523; Durham v. Perkins, 270 App. Div. 739, 296 N. Y. 514; Matter of Ziegler, 168 App. Div. 735, 218 N. Y. 544; Conger v. Conger, 105 App. Div. 589, 185 N. Y. 554; Matter of Worthington, 141 N. Y. 9; Beard v. Beard, 140 N. Y. 260.)
   Loughran, Ch. J.

On September 7, 1915, Oliver H. Payne executed four deeds of trust in each of which he appointed Lewis Cass Ledyard, Sr., and Lewis Cass Ledyard, Jr., as cotrustees. Each of these instruments also granted to the trustees a right to reasonable compensation, to be retained by them out of the income of the trusts, and further provided that their right to compensation in respect of the trust capital should not be affected by their resignation or death prior to the termination of the trusts.

Ledyard, Sr., died in 1932 and Ledyard, Jr., then appointed United States Trust Company of New York to be cotrustee with him. Ledyard, Jr., died in 1936, leaving a last will and testament which made the same Trust Company his sole executor.

In 1938 the Trust Company commenced this action as surviving trustee of the Payne trusts. The relief sought was a judicial settlement of the cotrustees’ accounts for the period between a prior accounting by them in 1933, and the date of the death of Ledyard, Jr., in 1936. The Trust Company named as defendants the beneficiaries of the Payne trusts and itself as executor of the estate of Ledyard, Jr., the deceased cotrustee. As such executor, the Trust Company made a claim on behalf of the estate of Ledyard, Jr., for additional commissions on the principal of the Payne trusts.

A referee who heard that claim rejected it on the merits. Final judgment in this accounting action was subsequently entered in 1939. The accounts of the cotrustees were thereby settled and the claim of-the estate of Ledyard, Jr., for additional commissions disallowed.

In 1948 Dorothy Ledyard Kniffin — a daughter of Ledyard, Jr. — as general guardian of infants who are beneficiaries of his estate but not of the Payne trusts, moved herein for an order vacating that final judgment and permitting her to reassert the claim of the estate of Ledyard, Jr., for the commissions that were disallowed in 1939. She attacked that judgment as not binding upon her wards because the Trust Company had not named them as parties defendant in the action. Special Term denied her application and the Appellate Division unanimously affirmed. Mrs. Kniffin then brought the case here by our leave.

The sole question thus presented is simply this: Were the beneficiaries of the estate of Ledyard, Jr., indispensable parties to this action for a settlement of the accounts of the trustees of the Payne trusts? The answer, we think, must be in the negative.

As appellant here Mrs. Kniffin says her wards were indispensable parties to this action, because the Trust Company appeared therein as the executor of the estate of Ledyard, Jr., and also as the sole accounting trustee of the Payne trusts. On that basis she would have liability imposed upon the beneficiaries of the Payne trusts for an asserted breach by the Trust Company of its fiduciary duty as executor of the estate of Ledyard, Jr. But the Trust Company was authorized to prosecute the claim for commissions on behalf of the beneficiaries of the estate of Ledyard, Jr., without joining them with it (Civ. Prac. Act, § 210). The beneficiaries of the Payne trusts were in no way responsible for the appearance of the Trust Company in a dual capacity. If, in fact, the Trust Company was guilty of a breach of fiduciary duty in handling the claim of the estate of Ledyard, Jr., for commissions, the remedy for that alleged dereliction was to compel the Trust Company to account therefor to the estate of Ledyard, Jr., as executor of that estate.

In short, on this record — so far as any liability of the beneficiaries of the Payne trusts is concerned — the judgment entered in this action in 1939 is in all respects conclusive.

Fisher v. Banta (66 N. Y. 468), cited by appellant, is a wholly different case both in fact and in principle. There the administrator of an estate attempted to account to himself as executor of a deceased beneficiary of the same estate. In the present case, the Trust Company did not account to itself as executor of the estate of Ledyard, Jr. On the contrary, the Trust Company here accounted as trustee of the Payne trusts to the beneficiaries thereof and not to itself in any capacity. (Cf. Surrogate’s Ct. Act, § 262, subd. 10.)

The order should be affirmed, with costs.

Desmond, J.

(dissenting). This action was brought, more than ten years ago, by plaintiff United States Trust Company, for a judicial settlement of its accounts as sole surviving trustee (and the accounts of a cotrustee hereafter described) of several inter vivos trusts set up by Oliver H. Payne, and herein called the Payne trusts ”. From 1932 the Trust Company had been cotrustee thereof with Lewis Cass Ledyard, Jr., but the latter died on May 1, 1936, so that, thereafter the Trust Company was the sole fiduciary of the Payne trusts. But the Trust Company, by Ledyard’s will, had become, in 1936, the latter’s executor, also, and from that duality of position arises the question before us on this appeal. Most simply stated, that question is: when, on this Payne trust accounting, a contest developed between the Trust Company, as sole Payne trustee, and the same Trust Company, as sole Ledyard executor, could the Trust Company, without notifying the Ledyard beneficiaries, act for the Ledyard estate in support of its claim against the Payne trusts, and, at the same time, act for the Payne trusts, in opposition to that same Ledyard claim? The contest was tried out, or an attempted or purported trial was had, with the Trust Company the sole proponent and the sole opponent of that claim, and the claim was disallowed. Now Ledyard’s beneficiaries have moved to reopen the resulting judgment, so that they may appear in support of their testator’s claim. The courts below have denied the application. I believe that refusal was wrong, and that it was violative of fundamental rules based on justice and fair dealing, and contrary to old and honored decisions, particularly Fisher v. Banta (66 N. Y. 468).

The right of these appellants (Ledyard’s beneficiaries) to a reopening of the judgment against their estate, rendered without notice to them, does not rest on their assertions of bad faith on the part of the respondent Trust Company, nor can it be defeated by any attempt at this point to show that their claim bad no merit. That they may possibly get, in a different proceeding (now pending) against the Trust Company, as Ledyard’s executor, a surcharge against the Trust Company for its handling of this Ledyard claim against the Payne trust estates, is likewise unavailable as an answer to their demand that they be given a day in court against the Payne estates themselves, on that claim. The simple, unavoidable question here is as to whether the Trust Company, as claimant (for the Ledyard estate) could, alone and to the exclusion of anyone beneficially interested in the Ledyard estate, carry on a litigation against the alleged debtor (the Trust Company itself, as Payne trustee) and get a judgment therein which would conclude the Ledyard estate and its beneficiaries. I do not see how it is possible to give any but a negative answer to that question.

It is elementary that the same person cannot be both plaintiff and defendant at the same time in the same action. It is incongruous that the same person should direct and conduct both the prosecution and the defense of the same suit, no matter in what capacity he may appear. * * * And the rule has been applied where the same person sues and defends in different capacities.” (Globe & Rutgers Fire Ins. Co. v. Hines, 273 F. 774, 777 [C.C.A. 2d], certiorari denied 257 U. S. 643). In Smith v. City of Albany (61 N. Y. 444, 445, 446), this court cited with approval Story on Agency, who declared it a rule of morality “ that no man can faithfully serve two masters whose interests are in conflict. * * * And it is by no means necessary in cases of this sort that the agent should make any advantage by the bargain. Whether he has or not the bargain is without any obligation to bind the principal” In that same (Smith v. City of Albany, supra) opinion this court cited Collier v. Munn (41 N. Y. 143) wherein it is said that it is one of the duties of an executor to scrutinize a coexecutor’s claim for compensation “ for the single purpose of seeing to it that no improper employment or allowance was made for service rendered.” (P. 447.) Here the trust company’s “ scrutiny ” of the claim of its deceased coexecutor for $500,000 additional commissions consisted of defending against that claim, through one attorney, and advocating the selfsame claim, through another lawyer.

In Willcox v. Smith (26 Barb. 316, 351, 352) the strict rule was laid down, again with citations to Judge Story, that a double fiduciary ” cannot make binding on beneficiaries, any dealings he, in one capacity, has with himself in his other fiduciary capacity. That a fiduciary of a creditor is bound to take all proper means to collect for the creditor’s estate needs no citation of authority. That a fiduciary of a debtor has not only the right but the duty to interpose any available defenses to claims is settled, too (Butler v. Johnson, 111 N. Y. 204; Matter of Taylor, 251 N. Y. 257, 264). How can the same person perform both those duties, at the same time, and as to the same claim? This court held in Fisher v. Banta (supra) (to which we shall refer at greater length hereafter), and so have courts of other States held, that one who is acting as administrator of two different estates cannot take the side of either when their interests are hostile (Matter of Clark, 203 Iowa 224; Thomas v. Chamberlain, 39 Ohio St. 112, 122; Caheen v. First Nat. Bank, 230 Ala. 105). In Fisher v. Hubbell (65 Barb. 74, 89-90) which is, as we shall show in a later paragraph hereof, actually a decision at an early stage of the lawsuit of Fisher v. Banta (supra), (the leading and determinative authority on our question) this was said: “ Here the executor of Charles Edward Banta, whose duty it is to see to the collection of the assets of the estate of which he is executor and to pay over the legacies, is also the administrator de bonis non of the estate which is claimed to be the debtor of Charles Edward Banta’s estate. He cannot, as executor of Charles Edward, sue himself as administrator of Albert. (Trustees etc. v. Stewart, 27 Barb. 553.) So that without the necessity of imputing any fraudulent collusion or neglect, he stands in a position which is equivalent, in its effect, to a fraudulent collusion, or a refusal to sue ”.

Having thus referred to some of the many strong expressions of the rule here controlling, I will sketch briefly the history of this Ledyard-against-Payne claim in this suit, and then show the impact thereon of Fisher v. Banta (supra).

When the Trust Company, as surviving Payne trustee, brought this accounting suit, it named itself, as Ledyard executor, as a defendant, and named the Payne beneficiaries, also, as parties, but did not join as defendant, or otherwise, any person interested in the Ledyard estate. In its prayer for judgment, however, the Trust Company tendered to the court the question as to whether any further commissions from the Payne trusts were due to either trustee, and prayed that “ the unpaid balance thereof, if any, may be allowed under the directions of this court.” An answer, on behalf of the Trust Company, as Ledyard executor, was then filed by an attorney who was employed in the office of the attorneys (the law firm of which Mr. Ledyard had been a member) who had filed the complaint for the Trust Company. That answer did not affirmatively allege any claim or right of the Ledyard estate to further compensation, but all concerned obviously understood that the Ledyard commissions claim was up for determination in the action. An order was thereafter made appointing a referee to hear and determine the issues and in due course the referee proceeded to hear and determine this disputed Ledyard claim. Respondent tells us that it is common practice for an accounting fiduciary to name his cofiduciary as either a coplaintiff or as a defendant, and common practice to have both parties represented by attorneys in the same firm. That may be true when both fiduciaries are alive and there is no dispute between them, or between one of them and the estate under settlement. But we find in this record a letter to the attorney who filed the Ledyard estate answer, from another attorney later retained to appear in this action for that estate, which is in part as follows: “ Thank you for the copy of the answer which you served. I think this will help protect the Executor. I am not satisfied, however, in my own mind as yet that this fully protects the Executor. As you know, in the Surrogate’s Court it is the practice, where one party is on two sides of the same fence, to vouch in everybody interested in the matter. So far as we have been able to determine there is no such practice in the Supreme Court but, under all the circumstances surrounding this situation, I think we should give most careful thought to whether or not we should initiate some such practice.”

Not only was it thus suggested to plaintiff that “ everybody interested in the matter ” (which must have meant the Ledyard heirs, since Payne’s were already in as parties) should be vouched in, but, a month earlier, another attorney consulted by plaintiff had written to the attorney who filed the Ledyard answer, a letter which concluded with the opinion that there were “ substantial grounds for the making by his [Ledyard’s] estate of a claim for additional compensation.” Nonetheless, the Ledyard family were not made parties, or notified of the contest.

We are not here passing on proprieties, we are looking at a judgment to see if it concludes these appellants. At the trial before the referee, the attorneys now representing plaintiff appeared for it, and an attorney from another law firm represented the Trust Company as Ledyard executor. As counsel for the Ledyard estate, that outside attorney actively urged the payment of further commissions, and an affidavit in this record alleges, without contradiction, that the Payne trusts’ attorney vigorously took the opposite position. No other party took sides in the matter. Thus the Trust Company, not only in theory but in fact, did what all the above-cited cases say it could not do, that is, take, in its different capacities, both sides of the same issue. The referee disallowed the Ledyard claim, judgment was. entered accordingly, and no appeal was taken therefrom.

Fisher v. Banta (66 N. Y. 468, supra) is the leading authority in this State. It seems to be argued here by respondent that the case holds, no more than that, when an accounting party is executor or administrator for one of the parties to whom he is accounting in his first capacity, he, must bring in, as added, parties, those, persons for whom he is acting in that second capacity. Since, argues respondent, the Trust Company here was accounting not to itself as Ledyard executor but to the Payne cestuis que trustent, who were made parties, therefore, says respondent, Fisher v. Banta (supra) has no bearing. That version of the. Fisher v. Banta holding notices its form but ignores its substance. The situation was this: one Hubbell, executor of the will of Charles Edward Banta, became, also, administrator de bonis non of the estate of Albert. Banta, father of Charles Edward. Hubbell being, like this plaintiff, erroneously of the opinion that he could carry on a lawsuit with himself, filed, in the Albert estate, an accounting of which he gave notice to himself as executor of Charles Edward’s estate, but no notice to any of Charles Edward’s distributees. In due time Hubbell entered a decree solemnly discharging him in the Charles Edward Banta estate. That earlier accounting is described in Fisher v. Banta, but Fisher v. Banta was a subsequent suit, instituted by Charles Edward’s heirs to construe both wills, and to enforce claims which they asserted against the Albert estate via Charles Edward’s estate. Hubbell sought a dismissal of that second lawsuit, on the ground that these plaintiffs, in the new suit, were concluded by the prior accounting decree. The General Term (65 Barb. 74, above quoted from and for some reason styled “ Fisher v. Hubbell ” rather than “ Fisher v. Banta ”, as was the later title in this court) dealt quite summarily with that defense, ruling that the accounting decree could not conclude the plaintiffs (Charles Edward’s beneficiaries) who, were not served in that prior accounting., Treating Charles Edward’s heirs as creditors of the two estates because of the, nonpayment to them of their shares under the wills, the General Term held that, as such creditors, those beneficiaries could, under the circumstances (same person representing both estates), sue in equity for whatever relief should be found appropriate. The reference in that opinion, and in the subsequent Fisher v. Banta opinion (66 N. Y. 468, supra), to the prior accounting was only by way of showing the nonconclusiveness thereof. The real substance of both the General Term and Court of Appeals opinions is this: that a double fiduciary cannot conclude either set of beneficiaries by a judgment in a suit to which they are not parties, and that, despite such a judgment, they have a complete right to be heard in support of any claim against either estate. Respondent’s recitals of the incidental factual and procedural differences between the present case and Fisher v. Banta, leaves undisturbed the true inwardness of Fisher v. Banta. In that suit, the people who really stood to gain ignored the previous litigation and started a plenary action — here they ask to be made parties to the earlier suit. The differences are superficial.

Respondent cites Matter of Hodgman (140 N. Y. 421). The appellant in that case was one of several executors named in her husband’s will. As such she asserted that a claim by the estate of one of her coexecutors, against her husband’s estate, was unfounded. She called that matter to the attention of the court and of her fellow beneficiaries but the court ruled against her contention and in favor of her coexecutor’s estate. The widow alone attempted to appeal but the court held that she had no standing as an appellant, because the decision below had no effect on her own rights in the estate of her husband, and those who would be financially affected (her husband’s residuaries) were content with the adjudication from which she was attempting a gratuitous appeal. If the question there had been as to the rights of the deceased coexecutor’s "beneficiaries to be parties to the action, the situation would be like the one in the present case. But no such matter was discussed in the Hodgman opinion. The holding was that, so long as the persons adversely affected acquiesced in the decision adverse to them, the widow, not so affected, could not appeal. The question we have here is not answered, one way or the other, in Matter of Hodgman (supra).

Another objection by respondent — that appellants were not entitled to be parties since only “ remotely ” or “ contingently ” interested —is specifically overruled in Fisher v. Banta (see page 481 of 66 N. Y., supra).

Respondent repeatedly points out that it was the Payne trusts that were here accounted for, that the persons named in those trusts were all parties, and that neither Ledyard nor his estate was in any sense a beneficiary of the Payne trusts. But creditors, as well as remaindermen, and, indeed, ahead of remaindermen, are directly interested in the disposition of trust property, and so Ledyard’s executor (and Ledyard’s beneficiaries, when conflict appeared) were, because of the Ledyard claim for added commissions, as necessary parties as any one else. Are not the holders of disputed claims, whatever their relationship to a trustor, adversaries of the estate itself on an accounting? The complaint here recognizes that, since the prayer for judgment is not only that Ledyard’s estate be discharged of liability to the Payne trusts, but also that there be determined, as a separate issue, the Ledyard claim. That issue went to trial and judgment, and it is pretty late now to say that no such issue existed, or that Ledyard’s estate was a mere nominal, or formal, party to this action. In truth, the trial before the referee was of the same kind of issue as if Ledyard, in his lifetime, had sued Payne, during the latter’s life, for unpaid services.

To repeat, the question here is not as to the worthiness of the Ledyard demand, nor as to the good faith of plaintiff. We are concerned with a fundamental proposition: the right of a creditor to be heard, personally or through a disinterested representative, in a proceeding which is actually adversary.

The order should be reversed and the motion granted, with costs in all courts.

Lewis, Conway, Dye and Fuld, JJ., concur with Loughran, Ch. J.; Desmond, J., dissents in opinion in which Froessel, J., concurs.

Order affirmed.


author: Lewis, J.

text:
    In the Matter of the Estate of E. Bruce Johnson, Deceased. Eleanor Muelberger, Appellant; Genevieve Johnson, Respondent.
    Argued January 11, 1950;
    decided April 13, 1950.

      Saul Hammer and Le Roy G. Edwards for appellant.
    I. The Florida decree of divorce is invalid for lack of jurisdiction. (Curley v. Curley, 198 So. 584 [Fla.]; Chisholm v. Chisholm, 125 So. 694 [Fla.]; Phillips v. Phillips, 1 So. 2d 186 [Fla.]; Wade v. Wade, 113 So. 374 [Fla.].) II. The requirements of full faith and credit of the United States Constitution did not preclude appellant’s attack upon the Florida decree. (Williams v. North Carolina, 325 U. S. 226; Matter of Lindgren, 293 N. Y. 18; Urquhart v. Urquhart, 272 App. Div. 60, 297 N. Y. 689; Senor v. Senor, 272 App. Div. 306, 297 N. Y. 800.) III. The decree of divorce against decedent was invalid in Florida and subject to attack there by appellant. (Wade v. Wade, 113 So. 374 [Fla.]; Phillips v. Phillips, 1 So. 2d 186 [Fla.]; Chisholm v. Chisholm, 125 So. 694 [Fla.]; State ex rel. Willys v. Chillingworth, 168 So. 249 [Fla.].)

      John H. Munley and George J. Meade for respondent.
    I. Decedent, having personally appeared as defendant in the Florida divorce action, would be prevented from attacking the decree. (Miller v. Miller, 271 App. Div. 974; Shea v. Shea, 270 App. Div. 527; Vernon v. Vernon, 288 N. Y. 503; Schacht v. Schacht, 295 N. Y. 439; Hoyt v. Hoyt, 265 App. Div. 223; Tiedemann v. Tiedemann, 225 N. Y. 709; Glaser v. Glaser, 276 N. Y. 296; Hess v. Hess, 276 N. Y. 486; Guggenheim v. Wahl, 203 N. Y. 390.) II. Conceding that decedent defendant would be estopped from contesting the divorce decree, petitioner is likewise estopped from collaterally attacking the Florida divorce decree, and the State of New York is compelled to accord full faith and credit to the Florida decree, based as it was upon the appearance of both parties with full opportunity to litigate the matter of domicile. (Hynes v. Title Guar. & Trust Co., 273 N. Y. 612; Matter of Blum, 185 Misc. 43; Sherrer v. Sherrer, 334 U. S. 343; Coe v. Coe, 334 U. S. 378; Stoll v. Gottlieb, 305 U. S. 165; Davis v. Davis, 305 U. S. 32; Kinnier v. Kinnier, 45 N. Y. 535; Ruger v. Heckel, 85 N. Y. 483; Frost v. Frost, 260 App. Div. 694.)
   Lewis, J.

This appeal, taken by petitioner as. of right on constitutional grounds (N. Y. Const., art VI, § 7, subd. [1]; Civ. Prac. Act, § 588, subd. 1, cl. [a]), presents for review an order of the Appellate Division unanimously affirming a Surrogate’s decree adjudging to be valid and effective under section 18 of the Decedent Estate Law an election by the respondent, Genevieve T. Johnson, as. surviving spouse of E. Bruce Johnson, deceased, to take as, in intestacy a share of the decedent’s, estate.

The petitioner-appellant is the daughter of the decedent and sole legatee under his will. Following probate proceedings the respondent, claiming to be the testator’s widow, served and filed, a notice, pursuant to section 18 of the Decedent Estate Law, declaring her election to take against decedent’s will her intestate share of his estate. Thereupon the petitioner instituted this proceeding under section 145-a of the Surrogate’s Court Act. to obtain a determination of the validity of such election.

The petitioner is the child of the decedent’s first marriage. After the death of his first wife the decedent in 1939 married Madeline Ham, from whom he was divorced in 1942, by a Florida decree the validity of which is a decisive factor in this proceeding. In 1944 the decedent and the respondent entered into the marriage — now challenged by the petitioner as void — which is the basis for the respondent’s present claim of widowhood and for her statutory election to take an intestate share of the decedent’s estate.

As an item in our consideration of this case we note judicially the fact that in 1942, a statute of Florida provided — In order to obtain a divorce the complainant must have resided ninety days in the state of Florida before the filing of the bill of complaint.” (Fla. Stat. Ann., § 65.02.) In the fight of that statutory requirement we have examined the record of hearings had before the Surrogate, at which evidence was received referable to the 1942 Florida divorce action instituted against the decedent by his second wife, Madeline Ham Johnson. We find no evidence, within the jurisdictional requirement of the Florida statute, quoted (supra), that the plaintiff “ * * * resided ninety days in the state of Florida before the filing of the bill of complaint.” Furthermore, there is evidence, which stands undisputed, that for a period of at least two years prior to the date in 1942 when the Florida divorce action was instituted by her, Madoline Ham Johnson resided in the State of New York, except for three months in the winter of 1941-1942 when she went to Florida for a brief period. During that brief sojourn she instituted a divorce action which was formally withdrawn by her on February 16, 1942, and within a week thereafter she returned home ” — to use her word — to the decedent, who then resided in the State of New York. Thereafter she remained in the State of New York until early in June, 1942, when she went to Florida where, on July 29, 1942, she filed a bill of complaint against the decedent in the action for divorce here in controversy. In that connection there is evidence, which is conceded by the petitioner, that in the 1942 Florida divorce action the decedent appeared by attorney and interposed an answer to his wife’s complaint, which answer denied allegations of his misconduct but did not put at issue the plaintiff’s allegation that she had resided in Florida continuously for more than a period of two years immediately preceding the filing of her bill of complaint.

The petitioner in the present proceeding asserts that respondent’s marriage to the decedent was void because the 1942 Florida divorce action was legally ineffective to dissolve decedent’s second marriage, the alleged invalidating factor being the failure by the plaintiff in that action to comply with statutory requirements as to residence then effective in that State. Ruling that the decree of divorce granted by the Florida court in 1942 is entitled to full faith and credit in the State of New York, the Surrogate wrote:

“ In the Florida court, the decedent appeared by attorney and interposed an answer denying the wrongful acts but not questioning the allegations as to residence in Florida. The record discloses that testimony was taken by the Florida court and the divorce granted Madoline Johnson. Both parties had full opportunity to contest the jurisdictional issues in that court and the-decree is not subject to attack on the ground that petitioner was not domiciled in Florida.
Since the decree is valid and final in the State of Florida, it is not subject to collateral attack in the courts of this state.”

Mindful of the undisputed facts recited by the Surrogate as the basis for his decision — which decision has met with unanimous affirmance at the Appellate Division — and it appearing without dispute that the plaintiff is in law a stranger to the divorce action instituted in a Florida court in 1942, we are to determine whether the courts below rightly ruled against the petitioner’s challenge, on jurisdictional grounds, to the Florida divorce decree and rightly accorded to that decree full faith and credit in the State of New York.

It cannot be denied that after the decedent had appeared in the 1942 Florida divorce action and filed an answer but had not availed himself of the opportunity afforded him to assert the plaintiff’s failure to comply with statutory requirements then prevailing as to residence, neither he nor his second wife, Madoline Ham Johnson, as parties to that action, could thereafter challenge on jurisdictional grounds the validity of the divorce decree which followed. (Davis v. Davis, 305 U. S. 32, 40.)

The rule of the case last cited was defined in Sherrer v. Sherrer (334 U. S. 343, 351-352) as follows: “ We believe that the decision of this Court in the Davis case [305 U. S. 32] and those in related situations are clearly indicative of the result to be reached here. Those cases stand for the proposition that the requirements of full faith and credit bar a defendant from collaterally attacking a divorce decree on jurisdictional grounds in the courts of a sister State where there has been participation by the defendant in the divorce proceedings, where the defendant has been accorded full opportunity to contest the jurisdictional issues, and where the decree is not susceptible to such collateral attack in the courts of the State which rendered the decree,” (Emphasis supplied.) (And see Coe v. Coe, 334 U. S. 378, 384.) Indeed, the scope of the Sherrer case (supra) rule has a like limitation, as shown by the following excerpt from the opinion (p. 349): “ The question with which we are confronted, therefore, is whether such a finding [of requisite jurisdictional facts] made under the circumstances presented by this case may, consistent with the requirements of full faith and credit, be subjected to collateral attack in the courts of a sister State in a suit brought by the defendant in the original proceedings.” (Emphasis supplied.)

In. this, jurisdiction, we have repeatedly disallowed such a challenge by a party who has appeared in the action and filed an answer but has not availed himself of the opportunity afforded him to assert, failure by the opposing party to present evidence which brings the case within the court’s jurisdiction. (Tiedemann v. Tiedemann, 225 N. Y. 709; Pearson v. Pearson, 230 N. Y. 141, 148; Borenstein v. Borenstein, 272 N. Y. 407; Glaser v. Glaser, 276 N. Y. 296, 299; Hess v. Hess, 276 N. Y. 486; Vernon v. Vernon, 288 N. Y. 503.)

There are, however,, pronouncements clearly indicating that where jurisdictional facts upon which rests a foreign divorce decree, fall, short of meeting statutory requirements then effective in the. foreign State, a stranger to the divorce action — as is the present petitioner — is not deprived of the. right by collateral attack to. challenge, the, validity of the. decree. Thus in Williams v. North Carolina (325 U. S. 226.) the view of a majority of the court on this subject was expressed at page 230: “ It is one thing to reopen an issue that has been settled after appropriate opportunity to present their contentions has been afforded to all who had an interest in its adjudication. This applies also to jurisdictional questions. After a contest these cannot be relitigated as between the parties. [Citing cases.] But those not parties to a litigation ought not to be foreclosed by the interested actions of others; * * *.” (Emphasis supplied.)

This court has recently had occasion to apply that rule which allows third parties to attack a foreign divorce judgment on jurisdictional grounds. (See Matter of Lindgren, 293 N. Y. 18, 23; Urquhart v. Urquhart, 272 App. Div. 60, affd. 297 N. Y. 689; Senor v. Senor, 272 App. Div. 306, 312, affd. 297 N. Y. 800.) In connection with the application of that principle it should be said that the argument that a decree of divorce operates in rem and therefore must be wholly good or wholly bad, is met by a statement in Williams v. North Carolina (325 U. S. 226, supra, at p. 232): “ Although it is now settled that a suit for divorce is not an ordinary adversary proceeding, it does not promote analysis, as was recently pointed out, to label divorce proceedings as actions in rem. Williams v. North Carolina, supra, at 297. [317 U. S. 287.] But insofar as a divorce decree partakes of some of the characteristics of a decree in rem, it is misleading to say that all the world is party to a proceeding in rem. See Brigham v. Fayerweather, 140 Mass. 411, 413, 5 N. E. 265, quoted in Tilt v. Kelsey, supra, at 52. [207 U. S. 43.] All the world is not party to a divorce proceeding. What is true is that all the world need not be present before a court granting the decree and yet it must be respected by the other forty-seven States provided — and it is a big proviso — the conditions for the exercise of power by the divorce-decreeing court are validly established whenever that judgment is elsewhere called into question. In short, the decree of divorce is a conclusive adjudication of everything except the jurisdictional facts upon which it is founded, and domicil is a jurisdictional fact. To permit the necessary finding of domicil by one State to foreclose all States in the protection of their social institutions would be intolerable.”

Under the authority conferred by section 1 of article IV of the Federal Constitution, Congress has enacted that judgments “ shall have the same full faith and credit in every court within the United States * * * as they have by law or usage in the courts of such State * * * from which they are taken.” (1 U. S. Stat. 122, now U. S. Code, tit. 28, § 1738.) That provision has been interpreted by the Supreme Court of the United States to mean — “ * * * that which has been adjudicated in one state ” shall be “ res judicata to the same extent in every other.” (Emphasis supplied.) (Magnolia Petroleum Co. v. Hunt, 320 U. S. 430, 438.) Thus appears in statutory form a doctrine announced by Chief Justice Marshall in Hampton v. M’Connel (3 Wheat. [U. S.] 234, at p. 235), that * * * the judgment of a state court should have the same credit, validity, and effect, in every other court in the United States, which it had in the state where it was pronounced, and that whatever pleas would be good to a suit thereon in such state, and none others, could be pleaded in any other court in the United States.” That view survives today substantially intact. (Fauntleroy v. Lum, 210 U. S. 230, 236-237; Williams v. North Carolina, 317 U. S. 287, 293-294.)

Under the Florida divorce statute (Fla. Stat. Ann., § 65.02, quoted supra) and the decisions of the courts of that State thereunder, the statutory requirement of ninety days ’ residence next preceding the filing of a divorce bill goes to the jurisdiction of the court assuming to grant the divorce decree. (Phillips v. Phillips, 146 Fla. 311, 320.) Compliance with that requirement cannot be proved or obviated by admission of the parties. " Such residence being jurisdictional, an admission thereof by the parties in their pleadings is ineffectual as a substitute for proof. The requisite residence must be alleged in the bill and established by proof. This is not an instance in which facts going to the jurisdiction may be effectually admitted by the parties.” (Wade v. Wade, 93 Fla. 1004, 1006-1007; and see Taylor v. Taylor, 132 Fla. 690, 696.)

It follows in this proceeding that the petitioner, a stranger to the Florida divorce action and decree, could successfully challenge the validity of that decree in collateral proceedings in the courts of Florida by producing proof of fraudulent circumstances under which it was obtained. (See State ex rel. Willys v. Chillingworth, 124 Fla. 274, 278-279.) To hold that she could not do likewise in this State would be to give to the Florida decree a more conclusive effect here than it would have in Florida.

The conclusion we have reached is further reinforced by the following excerpt from the opinion in Williams v. North Carolina (325 U. S. 226, 229, supra) — “ But the [Full Faith and Credit] Clause does not make a sister-State judgment a judgment in another State. The proposal to do so was rejected by the Philadelphia Convention. 2 Farrand, The Records of the Federal Convention of 1787, 447-48. ‘ To give it the force of a judgment in another state, it must be made a judgment there.’ M’Elmoyle v. Cohen, 13 Pet. 312, 325. It can be made a judgment there only if the court purporting to render the original judgment had power to render such a judgment. A judgment in one State is conclusive upon the merits in every other State, but only if the court of the first State had power to pass on the merits — had jurisdiction, that is, to render the judgment.

It is too late now to deny the right collaterally to impeach a decree of divorce made in another State, by proof that the court had no jurisdiction, even when the record purports to show jurisdiction * * *.' It was ‘ too late ’ more than forty years ago. German Savings Society v. Dormitzer, 192 U. S. 125, 128.”

The order of the Appellate Division should be reversed and the proceeding remitted to the Surrogate’s Court of Nassau County for further proceedings not inconsistent with this opinion, with costs in this court and in the Appellate Division to abide the event. The motion herein by respondent to dismiss the appeal taken by the petitioner on constitutional grounds should be denied.

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

Ordered accordingly.

       The time factor in the Florida statute has been interpreted by the courts of that State to mean ninety days next preceding the filing date. (Curley v. Curley, 144 Fla. 728, 731.)