author: Crouch, J. Crane, J. (dissenting).

text:
    Michael T. Watts, Respondent, v. John B. Malatesta, Appellant, Impleaded with Others.
    (Argued April 12, 1933;
    decided May 23, 1933.)

      John E. Mack, William H. George and Frederick S. Lyke for appellant.

      Hugh B. Archer, John Caldwell Myers and John F. Keating for respondent.
   Crouch, J.

The action is under section 994 of the Penal Law to recover money paid by plaintiff to defendant upon the event of prohibited wagers or bets. Plaintiff proved conclusively that on divers dates and occasions from April 28, 1928, to April 17,1930, he had paid defendant, a bookmaker, various sums of money aggregating $37,535 for wagers lost upon a series of horse races. The defendant adduced evidence which, it may be assumed, warranted a finding that during the same period defendant lost and paid to plaintiff like wagers aggregating a much larger sum. It was the contention of the defendant, under a pleaded counterclaim, that he was entitled to recover from the plaintiff a sum equal to the excess of the total amount lost and paid by him to the plaintiff over the total amount lost and paid by the plaintiff to him. That contention, accepted by the trial court, was rejected by the Appellate Division. Plaintiff was granted judgment for the entire amount of the wagers lost and paid by him to the defendant. As matter of law, the judgment was right.

Under the evidence and for the purpose of this case, plaintiff must be regarded as a casual, and the defendant as a professional gambler. “ The statute against betting and gaming was enacted as a protection of the public morals. The intention of the legislature was to discourage and repress gambling in all its forms, and the law * * * is to be construed so as to accomplish, so far as possible, the suppression of the mischief against which it was directed.” (Luetchford v. Lord, 132 N. Y. 465, 469, citing Ruckman v. Pitcher, 1 N. Y. 392, 396, and Storey v. Brennan, 15 N. Y. 524, 527.) But casual betting or gaining by individuals as distinguished from betting or gambling as a business or profession, is not a crime. (People v. Stedeker, 175 N. Y. 57; People v. Bright, 203 N. Y. 73; People ex rel. Collins v. McLaughlin, 128 App. Div. 599.) The distinction between the two species has long obtained in this state where ordinary betting has never been made a crime * * * while the keeping of a gambling house, selling lottery tickets and the profession of a common gambler have been subjected to severe punishment.” (People v. Stedeker, supra, p. 62.) Discouragement of casual betting has never gone beyond the point of making recovery by a winner impossible upon default by the loser (Penal Law, §§ 991 and 992); and of compelling return to the loser of voluntary payments made by him. (Penal Law, §§ 994 and 995.) Attack or defense in a civil action has been regarded as adequate — as one of the best and surest means ” (Rucknan v. Pitcher, supra, p. 405) — for the suppression of that kind of betting. The evil which the law chiefly condemns (N. Y. Const, art. I, § 9) and makes criminal (Penal Law, art. 88) is betting and gambling organized and carried on as a systematic business. The reason seems obvious. Curb the professional with his constant offer of temptation coupled with ready opportunity, and you have to a large extent controlled the evil.

It is clear that in the eye of the law the professional gambler and his customer do not stand on the same plane. They are not in pari delicto.

To argue, therefore, that the Legislature, by using the phrase “ any person ” in section 994 of the Penal Law, intended to confer a right upon the professional to recover his losses from his customer, is unconvincing. Under such a construction, a criminal act would give rise to a cause of action. That cannot be the law. (Cf. Riggs v. Palmer, 115 N. Y. 506; Murray v. Interurban Street Ry. Co., 118 App. Div. 35.) By no possibility could such a construction tend, as we have said it should, to the suppression of the mischief against which it [the statute] is directed.”

But it is urged that in any event the defendant, a professional specializing in the field of bookmaking, may offset his losses against the plaintiff’s claim. How may that be, if he has no cause of action at all? To permit it would be to permit pro tanto what the law denies in toto. Nowhere in the statute is there any indication of an intent to afford a locus pcenitentice to the professional. Quite the contrary. Whatever his shape may be, he is an outlaw. Moreover it is to be remembered that the right of recovery given by statute to the casual gamester is not intended to benefit him, but to put teeth in the prohibition against all betting.

As a precedent for the theory of offset, however, there is pressed to our attention the case of Elias & Shepherd v. Gill (92 Ky. 569). The compromise involved in that decision is a sporting one, and on that ground admirable. We think it can be sustained on no other, and prefer to follow Lyons v. Coe (177 Mass. 382), which dealt with an analogous, if less ambiguous, statute.

The judgment should be affirmed, with costs.

Crane, J. (dissenting).

The plaintiff and the defendant are two gamblers, the defendant being a bookmaker at the race tracks, and the plaintiff placing his bets on the races with the defendant through himself and his betting agent. These transactions covered the period between April 27, 1928, and May 28, 1929, during which time the plaintiff won nearly $250,000, and had lost about $150,000. His gains over losses were about $100,000. All the money he won was paid to him. He now brings this action under section 994 of the Penal Law to recover his losses but makes no offer to repay his winnings —■ these he wants to keep.

In Ms complaint he alleges that between the dates stated he paid to John B. Malatesta $37,773 as Ms wagers upon horse races at the Belmont track, the Jamaica race track and the Empire City race track; that having lost, he demanded back Ms money wMch the defendant failed to pay. Mind you, he sues to recover no single bet, nor does he even state or prove what the wagers were as made. He lumps his demands for a year’s betting and asks for the total; he treats the transactions as a running account.

The defendant m Ms answer admits that between the dates mentioned he and the plamtiff entered into a series of wagers upon horse races but denies that the plaintiff’s losses have not been repaid. He further alleges, as a counterclaim, the fact that he paid the plaintiff $95,938, his wmnings at the track over and above the losses, and demands judgment for its return.

At the trial the complaint was dismissed and the defendant was awarded judgment on Ms counterclaim. The Appellate Division reversed the judgment and gave judgment for the plamtiff, dismissmg the counterclaim. The result in my judgment is that both parties should have lost; that neither should have recovered from the other; that they were in pari delicto and that section 994 never mtended that a person who makes a wager may sue for and recover the same, although he may at the same time keep all Ms own winnings made in the same course of transactions more than sufficient to meet his losses.

Section 991 reads as follows: “All wagers, bets or stakes, made to depend upon any race, or upon any gaming by lot or chance, or upon any lot, chance, casualty, or unknown or contmgent event whatever, shall be unlawful.”

Section 992 reads: “All contracts for or on account of any money or property, or tMng m action wagered, bet or staked, as provided in the preceding section, shall be void.”

The plaintiff could not have recovered his winnings from the defendant. He would have no standing in court, for the law refuses to recognize gambling debts or afford the winner any relief. (Meech v. Stoner, 19 N. Y. 26.) The Revised Statutes (1 R. S. p. 662), the forerunner of section 994 of the Penal Law, permitted a recovery of his losses.

When, however, the plaintiff, under section 994, seeks to recover what he has lost, -at the same time having in his possession and having received from the defendant more than sufficient to cover such losses, all coming out of the same course of transactions, the court should afford him no relief. Section 994 of the Penal Law was never intended to cover such a case. Instead of discouraging gambling and bookmaking, which is the purpose of the law, such a result would do the very reverse by encouraging people to wager on horse races with a bookmaker whose money they could legally take, and then recover all that they may have lost in the same afternoon. The very purpose of section 994 is thus nullified.

This was the view taken of a similar statute by the Supreme Court of Kentucky in Elias & Shepherd v. Gill (92 Ky. 569). The Kentucky statute, like our Revised Statute (1 R. S. p. 662), provides (General Statutes, ch. 47, art. 1, § 2) that “ if any person shall lose to another at one time or within any twenty-four hours, five dollars or more * * * and shall pay * * * the same, such loser or any creditor of his may recover the same * * * from the winner * * * by suit brought within five years after the payment.”

Under this statute it was held that where one sought to recover of pool sellers on horse races the money which had been lost in wagering, the pool sellers were entitled to deduct from the amount lost or paid to them the sum which they had paid and which the person laying the wager had won. The court said: “ But while it is true appellants could not, by an original action, have recovered any part of the amount lost in their own pool-rooms to appellee, nor are entitled to judgment even on their counter-claim, still, whatever amount or amounts they lost to him on account of wagers between them on horse races at the dates or within the period mentioned in the petition, should be set off against or deducted from what he may be entitled to recover in this action. For certainly it was not the intention of the Legislature to afford to a party voluntarily buying pools on horse races, or betting at a faro-bank, the undue advantage of recovering back what he may have lost to the seller or dealer, without disgorging and accounting for what he won from him. The purpose of the statute was to afford to such party remedy to the extent of his actual loss, not to enable him to recover- back what he lost, while keeping and profiting by what he won from the defendant. It therefore seems to us clear that the criterion of the amount appellee is entitled to recover, if any at all, is the excess of what he lost to appellants above what he won from them during the period mentioned; and at the trial the burden should be on him to show the amount of his losses to appellants, subject to reduction or set-off by the amount he won from them.”

This is the exact situation in the case now before us. Our section 994 of the Penal Law likewise was never intended to enable a better on horse races to profit by his losses. In interpreting our laws, we must have in mind as a fundamental principle the evils which they are sought to prevent and not so construe them as to create greater evils.

My associate, Judge Crouch, is of the opinion that the plaintiff and the defendant are in different positions because the defendant has committed crime, being a bookmaker. In this I think he is mistaken. He cites for authority Riggs v. Palmer (115 N. Y. 506, 511), which held that a beneficiary, under a will, could not recover his benefactions where he had murdered the testator in order speedily to come into possession of the estate. The rule, however, that one may not profit by his own wrong is not confined to criminal acts. It applies equally to those who have done wrong, not amounting to crimes, such as acting contrary to public policy. “ No one,” said the court, “ shall be permitted to profit by his own fraud, or to take advantage of his own wrong, or to found any claim upon his own iniquity, or to acquire property by his own crime.” Thus, in Attridge v. Pembroke (235 App. Div. 101, 102), it was held that a mutual agreement that if the plaintiff would terminate and break her engagement to marry her fiancé, the defendant, a third party, would pay her a sum of money, is void, as against public policy, for it bound the plaintiff to do an illegal act. “It is not necessary,” said the court, “ to plead the illegality of a contract which is contrary to public policy; the court will, of its own motion, step in and "deny the right to any relief thereunder without reference to the state of the pleadings, whenever it becomes apparent that the agreement is antagonistic to the interests of the public.”

In Continental Wall Paper Co. v. Voight & Sons Co. (212 U. S. 227) it was held that a vendor could not recover for the price of wall paper sold and delivered, as to enforce the claim would be to aid in the execution of an agreement in restraint of trade. (See, also, Morgan Munitions Co. v. Studebaker Corp., 226 N. Y. 94.) The rule, therefore, was not confined to one who was a criminal. No one could recover on a contract which was contrary to the public policy of the State.

The position, in this particular, of the plaintiff and the defendant at common law was the same. Neither could recover losses sustained upon a wagering contract. Both were equally barred from the courts and the position of the man who bet was no better than the criminal who was a common gambler. The plaintiff in this case by betting on the horse races was acting contrary to the public policy of this State, as evidenced by the provisions of the Penal Law, above cited, and article I, section 9, of the Constitution of New York. When, therefore, section 994 of the Penal Law and its predecessor, the Revised Statutes (1 R. S. p. 662), removed this ban so as to permit any person who shall pay money upon the event of any wager to recover the same, it applied to the bookmaker as well as to the better. The statute makes no exceptions. Both were equally barred by the common law as equally culpable and when the prohibition was removed both were afforded equal rights, not for their own sakes, but for the benefit of the public. Personally, I believe that the defendant in this case has as much right to recover on his counterclaim as the plaintiff has to recover his losses. Both come under section 994 of the Penal Law. But at least I am convinced that the defendant having paid the plaintiff his winnings, is entitled to have them considered as repayment of the losses.

The remedy, under section 994 of the Penal Law, is not confined to those who bet with professional gamblers or with bookmakers at race tracks, but applies also to to those who bet at poker or on the result of elections. The loser may always sue to recover back his lost wager. This he could not do at common law. Betting was illegal, or, as stated by Judge Cullen in People v. Lambrix (204 N. Y. 261, 264), “All gambling has for a long time been illegal in this State.” The Constitution (Art. I, § 9) has enacted that no kind of gambling shall be authorized or allowed within this State. Prior to these provisions of the Revised Statutes, followed by section 994 of the Penal Law, the loser could not maintain an action to recover his losses because, having participated in an illegal act, the courts would not aid him. It left the parties in the position in which it found them. This court said in Meech v. Stoner (19 N. Y. 26, 27): If the statute had not given an action to recover money lost at play, it is quite certain that on the general principles of law a suit for such a purpose could not be maintained. The winner’s exemption from suit and recovery would not result, however, from any title in himself to the money or thing won and received by him. On the contrary, the whole transaction being unlawful, he is bound in conscience to make restoration, and would be bound in law to do so, but for a peculiar maxim having the force of law, and according to which the courts withhold their remedial processes from each of the offending parties. ‘In pari delicto potior est conditio defendentis,’ is the rule in such cases; but this is a rule which acknowledges no just or legal title in the defendant. It assumes, on the other hand, that the money or thing in bis possession has been acquired in violation of the law, and it then denies a remedy to the other party because he has been an equal sharer in the same offense. Thus the parties are left where the law finds them, and the defendant prevails, not upon his own merits or title, but because the plaintiff is deemed unworthy to be heard in the particular case. (Nellis v. Clark, 20 Wend. 24, and cases cited; S. C. in Court of Errors, 4 Hill, 424.) ”

The purpose of section 9.94 was merely to restore — to put the party back in the same position as if he had never parted with his property, to disregard the wager as an illegal act and to give the bettor that which he had lost, or, in the words of the decisions, that which the winner wrongfully kept. The statute, however", never intended to go further than this, or to permit one to profit out of his wrong, recover not only what he has lost, but also keep all that he has won. As above stated, to permit him to do this is to afford a rare opportunity for adventure or extortion, or betting on a sure thing.”

While the law prohibits bookmaking and makes it a criminal offense, it also provides the punishment. Although the bookmaker may be subject to this punishment, he. is not to be made the victim of frauds and cheats. One cannot steal from a bookmaker simply because he is a bookmaker. He has his remedy in court. When, therefore, the law allows the loser to recover from the bookmaker the money he has lost, it does not or should not permit the better to also keep what he has won from the bookmaker.

The purpose of section 994 of the Penal Law was to prevent under the mandate of the Constitution all forms of gambling. It was not aimed at professional gambling or against bookmakers or poolsellers; it was aimed at any person who gambles. This court, therefore, in construing this statute, should not deal with it as one in aid of the loser, but construe it in such a way as to aid in the purpose of the Legislature to stop, and not encourage betting. No surer way can be devised to encourage the gambling instinct than to say to these semi-professional gamblers like the plaintiff, “ You can risk all your money on the horses and, -if you lose, recover it back. If you win, you need never pay back.” This makes a sure thing of this form of gambling. A gambler like the plaintiff can always win and never lose. Such a construction of this statute is to defeat its very purpose and "resurrect that which the law has buried. We are at least in harmony with the intentions of the Constitutional Convention and of the Legislature when we hold that while the loser may recover from a bookmaker at the race track his losses, he cannot recover more, and if the bookmaker in the same course of transactions has paid winnings equal to the amount of the losses, the plaintiff or the better has suffered no loss. “ It is the function of the court to construe the statute, not to defeat it as construed. H * * To construe statutes so as to avoid absurd or glaringly unjust results, foreign to the legislative purpose is, as we have seen, a traditional and appropriate function of the courts.” (Sorrells v. United States, 287 U. S. 435, 449, 450.)

There is another ground for holding that this plaintiff cannot recover. The reason he recovers at all is because under the statute the bet is illegal (§§ 991, 992). Section 991 says that all bets upon a race are unlawful and that all contracts for money wagered shall be void. The money paid by the bookmaker to the plaintiff was on a void transaction. The plaintiff is not entitled to it. It is not his money. In the eyes of the law it is money had and received which he should pay back. The plaintiff still has money which belongs to the defendant. There is nothing I know of in the law which prevents this defendant from pleading that the plaintiff has been paid in full. Even if the bookmaker may not be able to recover back his money (which I doubt) he is fully authorized when sued to set up any defense known to the law. He has proved payment by showing that the plaintiff has received more than he gave.

I, therefore, am for reversal, the dismissal of the complaint and of the counterclaim, basing my opinion upon these two grounds: (1) Section 994 of the Penal Law was never intended to cover a case like this which would permit a bettor to recover all his losses without offsetting his winnings, and (2) for the reason that the winnings, growing out of the same course of transactions, amount to a repayment of the losses.

Pound, Ch. J., Kellogg and O’Brien, JJ., concur with Crouch, J.; Crane, J.,' dissents in opinion in which Lehman, J., concurs; Hubbs, J., not sitting.

Judgment affirmed.


source: Caselaw Access Project

author: Crouch, J.

license: Public Domain

text:
    M. & T. Trust Company, Respondent, v. Export Steamship Corporation, Appellant.
    (Argued April 13, 1933;
    decided May 23, 1933.)

      Lyman M. Bass and Herbert K. Stockton for appellant.

      Ray M. Stanley, Ellis H. Gidley and Arthur E. Otten for respondent.
   Crouch, J.

The action is in conversion to recover the value of six separate shipments of motor trucks and parts carried by defendant and delivered at destination to an unauthorized person without surrender of the outstanding order bills of lading.

The shipments were from Buffalo, N. Y., to ports in Morocco, and were consigned to the order of the shipper, notify X. Drafts for their value, drawn by the shipper upon X payable to the plaintiff, to which were attached the bills of lading indorsed in blank by the shipper, were delivered to the plaintiff and by it forwarded to its Morocco correspondent for collection. They were presented to X for acceptance but none was accepted. Nevertheless, the defendant delivered the shipments to X against a bank guaranty for its own protection.

The bills of lading provided, among other things, that in case of failure to make delivery, notice of loss in writing must be given to the defendant within a specified time after delivery should have been made; that written claims must be filed within a specified time after giving the aforesaid notice; that unless the notice be so given and the claim be so filed, defendant should not be hable; and that no suit for loss should be maintained unless instituted within one year after giving the written notice. There is no question here as to the reasonableness of the time limitations, nor as to the fact that none of the above provisions was complied with.

Such non-compliance constitutes defendant’s answer to plaintiff’s claim. The question is whether or not that answer is good in point of law.

Plaintiff says it brings the action on the theory that the contracts of carriage and the ensuing transportation were wholly controlled by the general maritime law, under which defendant’s essential obligation was safely to carry .and rightly deliver the shipments; that the willful misdelivery breached that obligation and constituted a conversion, thereby estopping defendant from claiming any benefit from the notice clauses and rendering it liable to plaintiff, as in tort.

It has been said that to denounce an act of an ocean carrier as conversion is, in the admiralty, only calling bad names.” (Hough, J., The Cabo Villano, 18 Fed. Rep. [2d] 220.) If there is any inconsistency here in suing in trover under the principles of the maritime law, it may be disregarded. There is no dispute as to what defendant did in respect to the shipments. They were misdelivered. Unless defendant may take advantage of the notice clauses in the contracts, there can be no doubt that it is liable as for a conversion.

Within the limits prescribed by legislation and public policy, maritime contracts of carriage may, like any other, include provisions excepting certain risks or limiting and defining the relations of the parties. (Tewes v. North German Lloyd S. S. Co., 186 N. Y. 151; Queen of the Pacific, 180 U. S. 49.)

It is conceded that there is no legislation regulating or forbidding the notice clauses here in question, nor are they opposed to public policy. (Georgia, F. & A. Ry. Co. v. Blish Milling Co., 241 U. S. 190.) The time limitations being reasonable, the clauses are valid generally. (Cudahy Packing Co. v. Munson S. S. Line, 22 Fed. Rep. [2d] 898; certiorari denied, 277 U. S. 586; Schnell v. United States, 30 Fed. Rep. [2d] [676; certiorari denied, 279 U. S. 858.)

We come then directly to the point of whether misdelivery is covered by the notice clauses in question, and if so, whether defendant may have the benefit of them.

The bills of lading under which the shipments were made were issued pursuant to certain Federal statutes. (The Harter Act, 27 U. S. Stat. 445; 46 U. S. Code, § 190; The Bill of Lading Act, 39 U. S. Stat. 538; 49 U. S. Code, § 81.) Their proper construction is a Federal question. (Chesapeake & O. Ry. Co. v. Martin, 283 U. S. 209, 213.) A misdelivery such as this has been held to come within the description of failure to make delivery ” in bills of lading issued pursuant to the Interstate Commerce Act. (Georgia, F. & A. Ry. Co. v. Blish Milling Co., supra.) We see no reason why the same construction should not be given to the same words here. The Bill of Lading Act is equally applicable to railroad and ocean bills of lading. Similar clauses in bills issued under it should be given the same meaning. Even so, it is urged that where an ocean carrier commits a breach that goes to the essence of the contract of affreightment, it may not invoke the provisions of the contract favorable to it. The misdelivery here is said to have been such a breach. The cases cited in support of this rule, among which The Sarnia (278 Fed. Rep. 459) and St. Johns N. F. Shipping Corp. v. S. A. Companhia Geral, etc. (263 U. S. 119) are typical, all rest upon the doctrine of deviation. In Bank of California N. A. v. International Mercantile Marine Co. (64 Fed. Rep. [2d] 97) the Circuit Court of Appeals for the Second Circuit refused to apply that doctrine to a case of misdelivery, factually similar to the one here. In doing so, reliance was had upon certain decisions of the Supreme Court in cases arising under the Interstate Commerce Act. (Georgia, F. & A. Ry. Co. v. Blish Milling Co., supra; American Ry. Express Co. v. Levee, 263 U. S. 19; Davis v. Roper Lumber Co., 269 U. S. 158; Chesapeake & O. Ry. Co. v. Martin, supra.) It is the contention of the plaintiff — and such was the view of the Appellate Division — that those decisions rest upon the policy underlying the Carmack Amendment (34 U. S. Stat. 593, as amd., 49 U. S. Code, § 20, subd. 11), and that their authority is confined to cases arising under the Interstate Commerce Act. It is quite true that the argument made by the shipper in the Blish Milling Co. case, to the effect that the misdelivery amounted to conversion and thus to abandonment of the contract (Cf. Magnin v. Dinsmore, 62 N. Y. 35, 45; 70 N. Y. 410, 417), was answered by saying that neither party could waive the terms of the contract under which the shipment was made pursuant to the Federal act. The same argument is made by the plaintiff here. But while the policy of the Interstate Commerce Act requires such uniform treatment of claims, it does not follow that the converse is true, and that in cases not within the scope of interstate commerce distinctions based on circumstances of loss, form of action or the mode of carriage, should be fostered in the absence of some compelling reason for the distinction. No such reason is apparent. On the contrary, the opinion in the Blish Milling Co. case sets forth independent reasons why the limitation is valid, even where the action is laid in trover — the desirability of prompt notice and opportunity to investigate the merits of a claim before the evidence is cold. (See, also, Barrett v. Van Pelt, 268 U. S. 85.) Such considerations under modern shipping conditions apply no less to ocean than to land carriage.

The need for uniformity in effect as well as in construction of bills of lading, is obvious and persuasive. Both in legislation and in judicial decision the tendency has been toward uniformity. (Cf. The Lake Galera, 60 Fed. Rep. [2d] 876; United States Navigation Co. v. Cunard S. S. Co., 284 U. S. 474; South & Central American Commercial Co. v. Panama R. R. Co., 237 N. Y. 287.) In the absence of binding precedent to the contrary, we are disposed to follow tendency.

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

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

Judgment accordingly.


text:
    Katherine Kimmerle, Respondent, v. New York Evening Journal, Inc., Appellant.
    (Argued April 13, 1933;
    decided May 23, 1933.)

      Charles Henry and Charles C. Smith for appellant.

      Edward S. Blackstone for respondent.
   Crouch, J.

The action is for libel. The first cause of action as stated in the complaint has been held sufficient. The question of its sufficiency has been certified to this court. The answer depends solely upon whether the following words which “ on the 2d day of September, 1931, the defendant in its newspaper republished of and concerning the plaintiff,” are libelous per se:

Weds Sister-in-Law.
She accepted him and on January 16, 1905, they were married. Five days later Hoch was courting Mrs. Catherine Kimmerly in New York, in a rooming house she conducted, in 47th Street at Tenth Avenue.
“ Mrs. Fisher complained to Chicago police about the disappearance of her husband. This report called attention to his previous marriage and his wife’s death. Police exhumed the body. Poison was found. The dirty blood-smeared record he’d left behind came quickly to light.
“ The alarm went out for Hoch as a murderer.
Detective James J. O’Neill, a rookie of the W. 47th St. police station, turned Hoch in. It was chance that led him to the rooming house. He noticed two new trunks being taken in. He inquired about their ownership. He learned they belonged to a man after the description of Hoch. He won Mrs. Kimmerle’s confidence. He went to the house one night when Hoch was downstairs. He stumbled, purposely entering the parlor. He fell against the wily German, stripped him of the pistol he had in a dressing gown pocket.
The arch fiend was trapped.
Hoch was strung from the gallows in Chicago, February 23, 1906.”

We must take this somewhat cryptic narrative as it appears in the complaint, disregarding the explanatory matter in the briefs. We may infer that the alleged libel is a republication of part of an old news article at some time appearing in defendant’s newspaper. We may also infer that the entire article described the criminal career of one Hoch.

It has been held that the pleading was sufficient because the purport of the whole article was such as to disgrace the plaintiff and to cause her shame among those who knew her.

The law of defamation is concerned only with injuries to one’s reputation. Except to the limited extent provided by statute (Civil Rights Law [Cons. Laws, ch. 6], § 50), there is no right of privacy. (Roberson v. Rochester Folding Box Co., 171 N. Y. 538.) Written words, the effect of which is to invade privacy and to bring undesired notoriety, are without remedy, unless they also appreciably affect reputation. This is the domain, not of positive law, but of obedience to the unenforceable. (“ Law and Manners ” by Lord Moulton, Vol. 134 The Atlantic Monthly [July, 1924], 1.) From such harms one is protected only by the code of common decency.

Reputation is said in a general way to be injured by words which tend to expose one to public hatred, shame, obloquy, contumely, odium, contempt, ridicule, aversion, ostracism, degradation or disgrace, or to induce an evil opinion of one in the minds of right-thinking persons, and to deprive one of their confidence and friendly intercourse in society. (Sydney v. Macfadden Newspaper Pub. Corp., 242 N. Y. 208.)

We shall assume, although it is not alleged, that widespread notoriety came to the plaintiff from the publication in question and that she suffered greatly as a result. But there must be something more than that to make it libelous. Considered and weighed “ in the minds of right-thinking persons ” (Sydney v. Macfadden Newspaper Pub. Corp., supra), or as elsewhere expressed, in the minds of ordinary, just and reasonable citizens ” (Mycroft v. Sleight, [1921] 90 L. J. K. B. 883, 37 Times Law Rep. 646, 648), do the words published by defendant tend to expose plaintiff to any of the evil results catalogued in the general statement above? All that the article says about the plaintiff is that she conducted a rooming house in New York and was there courted by Hoch five days after he had married another woman in Chicago. Hoch is described, in current journalese, as a murderer ” and “ an arch fiend,” who had left a dirty, blood-stained record behind ” him in Chicago, where later he was strung from the gallows,” after being captured at plaintiff’s rooming house, where he was staying, by a “ rookie ” detective, who had won plaintiff’s confidence.

Courting ” is a word of vague content and may include varied conduct. But it does not imply immoral relations, nor did its use in the article impute such relations to plaintiff. (Cf. Horton v. Binghamton Press Co., 122 App. Div. 332.) There is not even an insinuation that plaintiff knew or had reason to know anything wrong about the man who was courting her, much less that she was an accessory to his crimes. The other reference to plaintiff is that the detective, on the track of Hoch, won her confidence. What that means is obscure, unless the text following permits an inference that she co-operated with the detective in the identification and capture of Hoch.

Without a suggestion in the article to the discredit of plaintiff, how could any just and right-thinking person reading it entertain any feelings except regret and sympathy for plaintiff? Embarrassment and discomfort no doubt came to her from the publication, as they would to any decent woman under like circumstances. Her own reaction, however, has no bearing upon her reputation. That rests entirely upon the reactions of others. We are unable to find anything in this article which could appreciably injure plaintiff’s reputation.

The orders should be reversed, with costs in all courts, the motion to dismiss the first cause of action alleged in the complaint granted, with costs, and the question certified answered in the negative.

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

Ordered accordingly.


author: Lehman, J.

text:
    In the Matter of the Claim of Sam Schwimmer against Kammerman & Kaminsky, et al., Respondents. State Industrial Board, Appellant.
    (Argued April 11, 1933;
    decided May 23, 1933.)

      John J. Bennett, Jr., Attorney-General (Henry Epstein, John R. O’Hanlon and David Winograd of counsel), for appellant.

      Abraham Greenwald and David Winograd for claimant.

      Jeremiah F. Connor for Kammerman & Kaminsky, respondent.
   Lehman, J.

The claimant was employed in a machine shop. The belt of a machine at which he was working became loose. There is evidence that his employer directed the claimant to buy some bolts and screws, needed in repairing the belt, during the midday luncheon hour. The claimant was accustomed to go to his home for luncheon. He did so on that day. After luncheon he went to a hardware store, a short distance off his usual route and bought the bolts and screws. With them in his pocket, he retraced his steps and fell on the street near his place of employment. Before that point he had regained the direct way which he was accustomed to take at the noon hour between his home and his place of work.

The evidence permits the inference that the claimant would have been sent out to purchase the screws and bolts if it had not been more convenient to postpone the purchase till the noon hour. As in Matter of Marks v. Gray (251 N. Y. 90), the claimant was, at the time of the accident, serving a purpose of his own, as well as performing an errand of his employer, but here the work of the employee would, even apart from his private purpose, have compelled him to travel there, while in that case the work of the employee would not have caused him to travel unless he had chosen to do so for his own purpose. The claimant was certainly engaged in an errand for his employer from the time he left his usual way of travel between home and place of work. He did not complete that errand when he regained that way, for his errand required him to bring to his place of work what he had bought. The case differs from Matter of Carroll v. Verway Printing Co. (254 N. Y. 598) where the claimant not only was carrying out her private purpose but had not begun her errand for her employer.

Since the evidence is sufficient to show that at the time of the accident the claimant was actually engaged in work for which he was employed, even though at the same time he was serving a purpose of his own, the injuries arose out of and in the course of his employment.

The order of the Appellate Division should be reversed and the award of the State Industrial Board reinstated, with costs in this court and in the Appellate Division.

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

Order reversed, etc.


author: Per Curiam.

text:
    Ursula A. Miller, Respondent, v. Gimbel Bros., Inc., Appellant.
    (Argued April 12, 1933;
    decided May 23, 1933.)

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

      Frank J. Irving for respondent.
   Per Curiam.

The plaintiff slipped and fell as she was about to enter the defendant’s department store through a revolving door. She has recovered judgment for the consequent injuries. A short entranceway led from the street to the revolving door. The floor of Tennessee marble slanted downward. On that day there was a heavy rainfall, the floor was wet and there was some mud in a corner of the revolving door.

The cause of plaintiff’s fall is not shown by any direct evidence. It does not appear that the plaintiff slipped upon the mud at the door or that the movement of the door was impeded. We may assume that rain water may make the smooth sloping floor somewhat more slippery than if the floor were dry. None the less it does not appear that the floor even when wet was dangerous. The owner of a store must take reasonable care that his customers shall not be exposed to danger of injury through conditions in the store or at the entrance which he invites the public to use. He cannot prevent some water and mud being brought into an entranceway on a rainy day and he is not responsible for injuries caused thereby unless it is shown that the construction of the store is inherently dangerous or that he failed to use care to remedy conditions which had become dangerous, after actual or constructive notice of such conditions. That has not been shown here.

The judgment of the Appellate Division and that of the Trial Term should be reversed and the complaint dismissed, with costs in all courts.

Pound, Ch. J., Crane, Lehman, Kellogg, O’Brien and Crouch, JJ., concur; Hubbs, J., not sitting. Judgments reversed, etc.


text:
    The People of the State of New York ex rel. Delaware, Lackawana and Western Railroad Company et al., Respondents, v. Frank Wildy et al., Constituting the Town Board and Board of Highway Superintendents of the Town of Cheektowaga, Appellants.

      (Argued April 21, 1933;
    decided May 23, 1933.)

      Carlton A. Fisher for appellants.

      Harold S. Brown for respondents.
   Lehman, J.

An assessment for the construction and maintenance of a sewerage system has been imposed upon the lands of the Delaware, Lackawanna and Western Railroad Company within a sewer district, established pursuant to statute, in the town of Cheektowaga. Upon a review in certiorari proceedings, the assessment has been annulled on the ground that the property of the railroad company received no benefit from the construction and operation of the sewer system and was not subject to any assessment.

The statute at that time required that assessments for the construction of a sewer must be imposed upon lots or parcels of land within a sewer district in proportion as nearly as may be to the benefit which each lot or parcel will derive therefrom.” (Town Law [Cons. Laws, ch. 62], § 237.) The local authorities, upon whom the duty of preparing the assessment rolls rests, have jurisdiction to determine the amount of the benefit which will be derived; but where there is no benefit there can be no assessment.

In this case the parcel of land, belonging to the relator, which has been assessed consists of 149.54 acres. The main right of way of the railroad company from Buffalo, New York, to Hoboken, New Jersey, running through this parcel is included therein. The larger part of the parcel is used as a railroad yard. With the exception of about twenty-six acres, the entire parcel is used for railroad operation, and even these twenty-six acres have never been used for other than railroad purposes. There are some structures in the railroad yard but none of these structures have been connected with the sewer system. Apparently more primitive methods of disposing of waste and effluvia suffice for the purposes of railroad operation. Upon these facts the courts below have determined that the assessment is illegal.

“ Whether or not a particular parcel of land has been benefited by a particular improvement is ordinarily a question of fact. The test is not whether as now used by its present owner any advantage is received but whether its general value has been enhanced.” (Matter of City of New York [Juniper Avenue], 233 N. Y. 387, 392.) Though no advantage to the land as now used by the railroad company is derived from the maintenance of the sewer, the question remains whether the “ general value ” of the land has been enhanced. The local authorities have determined that the general value ” of the land has been enhanced and have fixed the amount of the benefit. The assessment is attacked on the ground that in making that determination they exceeded their jurisdiction. The attack must fail if a question of fact was present. It is immaterial whether land is owned by a railroad company or by a church or by an individual unless we can say as a matter of law that the improvement may not by any possibility increase the value of the property. If we cannot, the extent of the benefit is for the determination of the commissioners.” (Matter of City of New York [Juniper Avenue], supra.)

In that case we held it could not be said as a matter of law that land used by a railroad company for a railroad yard derived no benefit from the opening of a street. The improvement might increase the market value of the land and the owner could by a sale obtain the benefit of the advance. Again in N. Y. C. & H. R. R. R. Co. v. City of Yonkers (238 N. Y. 165, 173), we held that an assessment for a street opening, placed upon property used for railroad purposes, was within the jurisdiction of the tax assessors. “ There is no statute which exempts the property of a railroad company from assessment for local improvement. Its yards, terminals or storage plants may be greatly enhanced in value by local improvements. It is only where the railroad’s right-of-way is so used that it gives evidence of a permanent user for railroad purposes that we have held that the railroad cannot be assessed. These were facts for the assessors to determine.”

What we said and decided in those cases compels the conclusion that here the assessment was not illegal. We are dealing with the benefit that may be derived from a new sewer system. We have heretofore left open the question of whether it can be said that as matter of law even land permanently used by a railroad company for a right of way might not derive some benefit from such an improvement. (Matter of City of New York [Juniper Avenue], supra.) We do not decide that question now, for even though the railroad right of way is included in the parcel of land owned by the railroad company upon which the assessment has been imposed, no apportionment of benefit to particular parts of the whole parcel was asked or made. The parcel was treated as a unit in determining the benefit and it does not appear whether the local authorities found that the portion used as a right of way derived any substantial benefit from the improvement.

The portion used by the railroad company for railroad yards presents a different problem. The right of way through this parcel could not be appropriated to other uses without destroying the continuity of the railroad. The railroad yards could be sold if the owner decided that it would be more economical to provide substituted facilities elsewhere. Though such action may be very improbable, its possibility is not excluded. Moreover, even while the property is used as a railroad yard it might derive some benefit from the sewer. Because the railroad company has not chosen to connect its yards with the sewers, it does not follow that it may not find it to its ■ advantage to do so in the future. (Cf. Syracuse, B. & N. Y. R. R. Co. v. Van Amburgh, 223 App. Div. 485; affd., 251 N. Y. 548.)

Finally, it is quite clear that the portion of the parcel not yet devoted to any railroad purposes derives some measure of benefit from the improvement. The market value of that vacant land has presumably increased. The railroad company is free to sell or to use that land for railroad purposes. Whether in the future the railroad company chooses one course or the other is immaterial. The test is whether the general value ” of the land is enhanced,” not whether its value has been increased for the particular use to which the owner may choose to put it. Only where land is permanently and irrevocably appropriated to a particular use can benefit to the land be measured or limited by benefit for a particular use.

The orders of the Special Term and of the Appellate Division should be reversed and the determination reviewed confirmed, with costs in all courts.

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

Orders reversed, etc.


text:
    Marion Gise, an Infant, by Hannah Kenny, Her Guardian ad Litem, Appellant and Respondent, v. The Brooklyn Society for the Prevention of Cruelty to Children, Respondent and Appellant.

      (Argued April 26, 1933;
    decided May 23, 1933.)

      George F. Curtis and John F. Middlemiss for plaintiff, appellant and respondent.

      Dimitri G. S. Eristoff for defendant, respondent and appellant.
   Lehman, J.

The infant plaintiff asserts in her complaint two causes of action against the defendant for false imprisonment. The gravamen of the first cause of action is that the defendant, wrongfully and without any commitment by the court, detained the plaintiff, then a child fourteen years of age, from Saturday, September 14, 1929, until the opening of the Children’s Court on September 16, 1929. The gravamen of the second cause of action is that the defendant wrongfully detained the plaintiff, under an order of the Children’s Court committing the plaintiff as a material witness, from September 16, 1929, till she was released upon habeas corpus proceedings. The infant plaintiff was at the time of her commitment a child under the age of fourteen but no charge was made that she was neglected or delinquent, and the plaintiff claims that the Children’s Court has no jurisdiction to commit a child as a material witness'without a finding that the child was either neglected or delinquent.

The answer of the defendant contains denials and four affirmative defenses, of which the first was withdrawn by stipulation. These affirmative defenses were interposed to the complaint as a whole and not separately to either cause of action. Complete immunity from any liability was claimed on the grounds stated in these defenses. The second defense asserts that this defendant was acting in the matter in the exercise of the power entrusted to it by law and in the attempted performance of the duty laid upon it by law as an auxiliary governmental agency for the prevention of cruelty to children and the enforcement of the laws relating to or affecting children and that this defendant is not answerable to the plaintiff for the same.” The third defense asserts that detention of the plaintiff both before and after the commitment was pursuant to and in compliance with the laws of this State and the order of the Children’s Court having jurisdiction of the person of the infant plaintiff herein.” The fourth affirmative defense asserts that the commitment by the Children’s Court is not subject to collateral attack. The plaintiff moved that the answer to the complaint be treated by the court * * * as a nullity on the ground that it is frivolous * * * and that the court give judgment accordingly,” etc. At Special Term the plaintiff’s motion was denied. Upon appeal to the Appellate Division that court stated in its opinion: The second cause of action is insufficient because we think that plaintiff’s detention was under a valid process of the Children’s Court. That court has jurisdiction to commit as a material witness a child under the age of sixteen years, even though such child is not delinquent, neglected, etc. The denials and defenses contained in the answer are insufficient in law as to the first cause of action and should be stricken out. The plaintiff is therefore entitled to judgment on the first cause of action for her damages to be assessed as above provided.” (236 App. Div. 852.) An order was entered in accordance with the decision of the court which provided for the assessment of the plaintiff’s damages on her first cause of action and for judgment dismissing the second cause of action.

No final judgment has been entered, but both parties have attempted to appeal from the interlocutory order. The plaintiff’s appeal is confined to that part of the order which dismisses the second cause of action. The defendant’s appeal is confined to that part of the order which grants judgment to the plaintiff upon the first cause of action. The Appellate Division, upon the defendant’s motion, granted leave to appeal and certified three questions. The first question is: Does the statement of new matter contained in the second separate defense constitute a defense to the first cause of action set forth in the complaint? The second and third questions are exactly the same except that they refer to the third and fourth separate defenses. Self-evidently no answer to these questions would have any relevancy in the determination of the sufficiency of the second cause of action. Upon the plaintiff’s appeal these questions are purely academic. For that reason, as well as for the reason that so far as appears the plaintiff has never obtained leave to appeal, her appeal must be dismissed. (Public Nat. Bank v. National City Bank, 261 N. Y. 316.)

The certified questions are also not decisive of the defendant’s appeal. The defendant maintains that the denials contained in the answer raise issues which must be tried before judgment in favor of the plaintiff can be granted, even assuming that no new matter in any of the separate defenses constitutes a defense to the first cause of action. The Appellate Division has certified no such question and we may not consider it as a ground for reversal. Even though that question be Waived or put aside, the correctness of the order of the Appellate Division cannot be tested merely by consideration of whether the answer has alleged any defense to the first cause of action. The plaintiff has attacked the answer as an entirety, and it may not be treated as a nullity if it raises an issue or sets up a defense as to any cause of action alleged in the complaint.

True, the defendant has attempted to limit its appeal to that part of the order which grants judgment to the plaintiff; but that part of the order cannot be sustained unless the remainder of the order dismissing the second cause of action was also justified. The Rules of Civil Practice provide the manner in which a defendant may move for judgment dismissing a complaint or a cause of action stated therein. (Rules 106 and 107.) The defendant has not by motion or counter-motion sought to avail itself of this remedy. So, too, the rules provide the manner in which a plaintiff may move to strike out a defense consisting of new matter or a sham or frivolous denial (Rules 109, 110 and 103), but the plaintiff has not chosen to avail herself of such remedy. The plaintiff’s second cause of action has been dismissed without any motion by the defendant solely as an incident to plaintiff’s motion made under rule 104. That rule provides: If an answer or reply be sham or frivolous the court may treat the pleading as a nullity and give judgment accordingly.” The attack under that rule is made upon the answer as a whole, not upon any separate part thereof. If the motion is granted without condition the court must give judgment as if no answer had been interposed. That is the purpose of the rule. The motion must be denied if the answer is not wholly bad; and if the answer is wholly bad the judgment given must accord with the allegations of the complaint. The provision in the order for judgment dismissing the second cause of action is inextricably intertwined with the provision of the order giving judgment in favor of the plaintiff on her first cause of action.

The attack upon the sufficiency of the answer searches the record for the first fault in pleading and reaches back to condemn the first pleading that is defective in substance, because he who does not so plead as to invite an issue cannot compel his adversary to so plead as to accept it. [Citing cases.] As ‘ a bad answer is good enough for a bad complaint,’ it is necessary to examine the record to see whether the allegations of the complaint are sufficient to constitute a cause of action.” (Baxter v. McDonnell, 154 N. Y. 432,436.) Even if the answer be treated as a nullity, no judgment can be granted in plaintiff’s favor if the complaint alleges no cause of action. The questions certified are so framed as to invoke the judgment of the court upon the law of the case as presented by the allegations contained in the first cause of action and in the affirmative defenses of the answer. (Baxter v. McDonnell, supra.) They are so framed as to exclude from our consideration the allegations of the second cause of action and the answer thereto.

The dismissal of the second cause of action assumes that the answer even if bad ” was good enough ” to meet the allegations set forth in that part of the complaint. In effect the Appellate Division has ruled that the answer should nevertheless be treated as a nullity but that the judgment given accordingly should be limited to the first cause of action which in its opinion was the only cause of action sufficiently alleged. We cannot upon this appeal pass upon the question whether the court, upon a motion to treat the answer as a nullity, may give a judgment dismissing one cause of action contained in the complaint, without a counter-motion for such relief by the defendant and without the acquiescence of the plaintiff. That question is not before us. It is futile for the defendant to argue, as it does upon this appeal, that the courts below could not grant summary judgment in favor of the plaintiff upon her first cause of action and at the same time dismiss her second cause of action when that part of the order which dismisses the second cause of action is not before us.

There has not been any severance of the two causes of action. Perhaps upon a motion to treat the answer as a nullity there could be no such severance. The plaintiff has challenged the sufficiency of the answer as an entirety. The defendant has not challenged the sufficiency of either cause of action except perhaps as an answer to the plaintiff’s challenge. We cannot determine the correctness of the order without passing upon the complaint as an entirety and the answer as an entirety, and since the certified questions and the form of the notice of appeal do not permit such a review the appeals should be dismissed, without costs.

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

Appeals dismissed.


author: O’Brien, J.

text:
    Maurice V. Genez, Appellant, v. The Union Marine Insurance Company, Ltd., Respondent, Impleaded with Another.
    (Argued April 25, 1933;
    decided May 24, 1933.)

      George S. Brengle and John M. Aherne for appellant.

      Paul D. Compton for respondent.
   O’Brien, J.

The Goodyear Rubber Company by special contract employed the Arizona California Transportation Company, a corporation, to carry a consignment of goods from Los Angeles to Phoenix, Arizona. This merchandise of stipulated value was loaded on Federal truck No. 6310 and Hercules trailer No. 11 and on July 5, 1927, while in transit the goods were totally destroyed by fire. The driver of the truck and trailer described himself as an employee of the Colletti Truck Company. The Goodyear company had a policy of insurance on these goods issued by the Phoenix Insurance Company of Hartford, Connecticut, which, however, does not cover any shipments on which there is any other insurance which would attach if the Phoenix policy had not been issued. The amount of the loss has been paid in full to the Goodvear company by the Phoenix. Without admission of liability, this sum was advanced as a loan to the Goodyear repayable to the Phoenix only out of any recovery which might be obtained by the Goodyear from any bailee or insurer who might be liable to the insured. Plaintiff is assignee of John Colletti, the Colletti Truck Company, Inc., and the Arizona California corporation, all three of whom he alleges to be covered by a policy issued by defendant Union Marine Insurance Company, Ltd. Alleging also that his assignors are legally Hable to the Goodyear company, plaintiff demands judgment against the Union Marine for the stipulated value of the goods. The answer denies that the assignors are legally Hable. The Goodyear company which suffered the loss is in any event fully recompensed. The real contest rages about the issue whether the ultimate obligation of making good this loss rests upon the Phoenix or upon defendant Union Marine. If the pohcy issued by the Union Marine to Colletti Truck Company and to John Colletti doing business as Arizona California Transportation Company does not cover this risk, this action cannot be maintained. The trial court held that the intention of the policy was to cover the risk and gave judgment for plaintiff. The question of intention is generally one of fact. The Appellate Division by a divided court reversed the judgment upon questions of law and dismissed the complaint.

In January, 1927, defendant Union Marine issued its policy in form known as an inland marine insurance pohcy to “ CoUetti Truck Co., Inc., and/or John Colletti dba Arizona California Transportation Co. as well in their own name as for and in the name and names of all and every other person or persons to whom the subject matter of this pohcy does may or shall appertain in part or in all.” A rider provides that the pohcy is for account of assured ” and “ loss if any payable to assured ” and covers all kinds of goods, “ their own and for which they may be legally Hable ” while contained in certain trucks specified in the pohcy. When the pohcy was issued, John Colletti, an individual, was doing business as Arizona California Transportation Company which is described as a partnership. Perhaps it was a mere trade name. Prior to May, 1927, the business of this partnership or individual was incorporated and its assets were transferred to an Arizona corporation bearing the same title as the partnership or trade name, Arizona California Transportation Company. This is the carrier with which the Goodyear company made its contract. After the incorporation of Arizona California Transportation Company but before the execution of its contract of carriage with the Goodyear, an indorsement was made on the policy issued by the Union Marine by which the amount of insurance was increased and Federal truck No. 6310 was covered. The application for this additional insurance was made by Colletti Truck Co., Inc. Hercules trailer No. 11 was not covered.

John Colletti was vice-president and general manager of Coletti Truck Co., Inc. His father was president. John, his brother and their father were the only persons interested in this company and in the incorporated Arizona California Transportation Company. John was also president of the last named corporation. One bookkeeper took care of the affairs of both corporations. The driver of the truck carrying the damaged goods testified that he was employed by the Colletti Truck Co. and that the Arizona California Transportation Company was what they called the line we worked on. * * * Lots of times it was called the Arizona-California and the Colletti wasn’t even mentioned and when it was the Colletti, the California wasn’t mentioned.” The ownership of the truck used by the incorporated Arizona California Transportation Company is not disclosed but it is one of the trucks the contents of which were insured.

From these facts the inference is required that the parties by their contract of insurance intended that the contents of Federal truck No. 6310 were to be covered in the event of damage by fire while either the Colletti company or John Colletti as bailee might be legally liable. A stronger inference is permissible. The policy concerns not only the corporation and the individual expressly designated “ in their own name,” but the application for the policy was made and the policy was issued for the benefit of every other person or persons to whom the subject matter of this policy does may or shall appertain in part.” The goods were transported under a contract of carriage with a corporation of which John Colletti was president and he and his brother and father sole stockholders bearing the same name and consisting of the same members as the insured partnership. A truck specifically described by name and number in the contract of insurance was of unknown ownership but was driven by a chauffeur whose general employment was by the corporation which was expressly included in the contract of insurance. Too high a value would need to be placed upon mere matters of form in order to reach a conclusion other than that the purpose of the parties was to cover the operations of these closely interwoven enterprises which were conducted under different names by the Collettis and for which they might be liable as bailees to third parties. This is a reasonable inference of fact. The policy may be deemed ambiguous but its writer cannot complain of such an inference. John Colletti, as long as he transacted business through his partnership or trade name, was included within the policy. That this individual later carried on his affairs through his close corporation does not appear to furnish a substantial reason for believing in the existence of an intent to exclude it from benefit.

The policy by its terms covers not only the goods of the corporation and the individual mentioned by name but also the goods of all others for which that corporation and that individual may be hable while the goods of the third parties are contained in certain specified trucks.

The judgment of the Appellate Division should be reversed and that of the Trial Term affirmed, with costs in the Appellate Division and in this court. (See 262 N. Y. 634.)

Pound, Ch. J., Crane, Lehman, Kellogg and Crouch, JJ., concur; Hubbs, J., not sitting.

Judgment accordingly.


author: Pound, Ch. J.

text:
    Robert Provo, Respondent, v. City of Syracuse, Appellant.
    (Argued May 24, 1933;
    decided May 31, 1933.)

      Edward L. Robertson, Corporation Counsel, for appellant.

      A. Lee Olmsted for respondent.
   Pound, Ch. J.

This is an action to recover $28,168 from the city of Syracuse claimed as a balance due on a contract for construction work.

The question is whether the complaint herein does more than state facts constituting a claim for extra compensation for work agreed to be done under a municipal contract, or whether it states facts constituting a cause of action for work done for which the contractor is entitled to compensation under the contract.

A written contract was entered into, after competitive bidding, between the plaintiff, the lowest bidder, and the city of Syracuse, dated December 28, 1926, whereby plaintiff agreed to dig a trench and lay a cast-iron pipe therein for the Syracuse water supply from Skaneateles lake according to plans and specifications therefor.

The contract, among other things, provided:

“ Depth.
Section 82. The trench for the main conduit shall be excavated to the depth, grades and alignments shown on the maps and profiles, or as the Commissioner may direct, which in general will be to such depth as to allow at least four (4) feet of cover over the top of the pipe. In earth excavation the bottom of the trench will be graded and leveled off to a depth of two (2) inches below the invert of the pipe. In rock, the bottom of the trench shall be excavated six (6) inches lower than the invert of the pipe, and the spaces refilled with earth upon which to bed the pipe. Trench excavation will be paid for a depth of two (2) inches below invert grade for earth and for a depth of six (6) inches below invert grade for rock.”

Section eighty-three of said contract provided as follows:

“Width and slope of trench.
Section 83. The trenches for the 36 inch conduit, to have a width of four and one-half (4|) feet, at the bottom of the pipe, with side slopes of one (1) horizontal to ten (10) vertical. These are the maximum dimensions which will be paid for in the trench for the'main conduit.”

Section eighty-six of said contract provided as follows:

“Measurements and projections.
Section 86. Any material excavated or removed outside of the limits above specified in the trench for the main conduit, will not be included in the measurement, nor be paid for, unless the same is specifically ordered by the Commissioner, or made necessary by a change in the line. * * *.”

The contract also provided:

“Alteration of the work.
20. The Contractor agrees that the Engineer may make alterations in the line or grade, and the Commissioner in place, form, position, dimension, or material, of the work herein contemplated, or any part thereof, ■ either before or after the beginning of construction, and that, in case of any such alteration, so much of this contract as is not necessarily affected thereby shall remain in force. If such alterations decrease the quantity of work to be done they shall not constitute a claim for damages or for anticipated profits on the work that may be dispensed with; if they increase the quantity of work to be done, such increase will be paid for according to the quantity actually done, and at the price established for such work under this contract, or in case there is not price established therefor it will be paid for at its actual reasonable cost to the Contractor as determined by the Commissioner, plus fifteen per cent of such cost.”

The complaint alleges:

Eleventh: Plaintiff further alleges that shortly subsequent to the date when the plaintiff began to excavate the pipe trench and to lay pipes therein, plaintiff found that the size of the specified pipe trench, especially regarding the width of the bottom of the trench and the slope of the sides thereof, did not give sufficient room for the proper and efficient laying of the pipes as required by the terms of the contract; that in a trench of the size specified by the contract, there was not room to properly place, locate, align, tamp, refill the trench about the pipe, test the same under pressure, determine the mount of the joint room, caulk and joint the sections of pipe, or to furnish proper room for the inspection of the work by the defendant’s Inspectors and agents, as required and specified by the provisions of said contract, hereinbefore referred to and set. forth; that thereupon the plaintiff brought the matter of the improper specified size and dimensions of the pipe trench to the attention of the Commissioner of Public Works, and his duly authorized agents acting within the scope of their authority, and after some investigation, the Commissioner of Public Works, individually and acting through his said agents and appointees within the scope of their authority, changed the dimensions of the pipe trench for the 86 inch pipe, so that the specifications should then provide that the plaintiff should excavate and be paid for a trench five (5) feet in width at the bottom and with side slopes of two and one-half (2§) feet horizontal to seven (7) feet vertical, and providing for the same degree of slope of the trench at other depths; that the contractor should be paid for excavating pipe trench at the price per cubic yard specified in the contract to the dimensions hereinbefore stated, provided that the plaintiff did actually excavate to those dimensions, and that in case the plaintiff did not excavate to the width and slope as hereinabove provided that he should be paid only for the amount of material actually excavated; that if the plaintiff excavated beyond the said limits as to width and slope, so provided for, that then he should not be paid for any material excavated outside such width and slope; that the change in the said contract was duly authorized by the provisions contained therein, hereinbefore alleged and referred to, and particularly by Paragraphs three and twenty thereof and Sections eighty-two and eighty-six of the specifications; that the Commissioner of Public Works of the defendant) individually and acting through his duly authorized agents, gave notice of the correction and amendment of the specifications as to the size of the trench, to the plaintiff herein, as required by the said contract; that the plaintiff duly accepted the orders and directions of the defendant’s Commissioner of Public Works, and his authorized agents and employees, and thereafter proceeded to excavate the trench for the 36 inch pipe line to a width of five (5) feet at the bottom and with side slopes of two and one-half (2J) feet on seven (7) feet.
“ Twelfth: Plaintiff further alleges that he excavated the said pipe trench for 36 inch pipe, of the additional width and additional side slope and to the dimensions as provided by the new order, .direction and change made by the Commissioner of Public Works, relying upon the promise and agreement of the Commissioner of Public Works that he would be paid therefor, as hereinbefore provided; that at all times subsequent to the issuing of the said change order as to the size, shape and dimensions of the pipe trench for the 36 inch pipe, the City Engineer of the City of Syracuse made surveys and plotted cross-sections of the trench so excavated by the plaintiff and included in the partial monthly estimates the amount of material excavated for the 36 inch pipe trench, in accordance with the direction of the Commissioner of Public Works and his authorized agents and that the defendant paid to the plaintiff, in partial estimates numbered three to ten, inclusive, sums of money as provided for in said contract for such extra and additional excavation as was made necessary by the change in the width and dimensions of the pipe trench, and that estimate number ten, issued by the defendant, through its City Engineer and Commissioner of Public Works, allowed the plaintiff for 65,108 cubic yards of trench excavation; that during the execution of the contract the plaintiff actually excavated 69,836 cubic yards of trench excavation and duly refilled and backfilled the same‘as provided by the said contract as changed, ordered and altered by the orders of the Commissioner of Public Works and his authorized agents, and that in the doing of such work, plaintiff at all times relied upon the promise and agreement of the Commissioner of Public Works and his authorized employees, that the plaintiff would be duly paid therefor, at the contract price of $1.40 per cubic yard; that in estimate number eleven the number of cubic yards of trench excavation was reduced to 62,325 cubic yards, although during the period between the issuing of the tenth partial estimate and the eleventh partial estimate, additional trench excavation had been made by the plaintiff, and that in each of the following monthly estimates the quantity allowed to the plaintiff for trench excavation and backfill was reduced, although the work of excavating and refilling such trench had been continued by the plaintiff; that estimate number twelve allowed plaintiff for excavating pipe trench, a total of 57,325 cubic yards; that estimate number thirteen allowed plaintiff for excavating 56,000 cubic yards; that estimate number fourteen allowed plaintiff for excavating 55,000 cubic yards; that estimate number fifteen allowed the plaintiff for excavating 52,251 cubic yards; that estimate number sixteen allowed plaintiff for excavating 52,251 cubic yards; that estimate number seventeen allowed the plaintiff for excavating 52,249 cubic yards, and that the final estimate of the Commissioner of Public Works and City Engineer allowed plaintiff for trench excavation and backfill at 49,716 cubic yards.
“ Thirteenth: Plaintiff alleges, upon information and belief, that the total of 49,716 cubic yards trench excavation and backfill as allowed to the plaintiff in the said final estimate was based upon the excavation and refill of a pipe trench of the dimensions, width and shape as originally specified in the contract, and that such quantity did not include any excavation outside of a width of four and óne-half (4|) feet at the bottom of the trench with side slopes of one (1) horizontal on ten (10) vertical and that the plaintiff was not allowed for any material excavated or removed outside of the limits of a pipe trench of such size.
“Fourteenth: That the total quantity of material excavated by the plaintiff for pipe trenches was 20,120 cubic yards of material in addition to that allowed to the plaintiff in the said final estimate.”

The agreement of the Commissioner that the contractor should be paid for additional excavation was not binding on the city unless the Commissioner specifically ordered the additional excavation because of an alteration in place, form, position, dimension, or material, of the work ” contemplated by the contract. The contract definitely specified the maximum dimensions which will be paid for in the trench.” Contractor agreed to dig the trench for the main conduit but agreed that the maximum dimensions which would be paid for were those specified in section 83, supra.

The action is not for extra work but for work done ■under the contract, and it, therefore, follows that to allow the contractor for excavation for more than the maximum dimensions specified in the contract would be to allow him extra compensation for doing the work which he had contracted to do for the agreed compensation, contrary to the rule recently laid down in Weston v. State of New York (262 N. Y. 46) unless the Commissioner “ specifically ordered ” the contractor to make the larger excavation.

The complaint fails to allege facts stating that the Commissioner specifically ordered the contractor to make the larger excavation or so altered the dimensions of the trench as to require the contractor to excavate the larger trench. It alleges that the Commissioner agreed that the contractor be paid for such additional excavation as he actually made. Under a fair construction of the complaint, aside from the conclusions therein stated, it means merely that the Commissioner acquiesced in the larger amount of excavation which the contractor had already agreed to do for the. contract price as definitely as if he had agreed to make all the necessary excavation for a fixed sum. He had agreed to make the excavation for a unit price per cubic yard covering a limited area, no matter how much excavation the work actually required, and he is to be held to his bargain unless the Commissioner specifically compelled him to do more.

As a fair reading" of the complaint does not disclose any alteration of the dimensions of the trench which required the contractor to do any excavation in addition to the excavation he agreed to do, it fails to state a cause of action. (Voorhis v. Mayor, 62 N. Y. 498, 501; O'Brien v. Mayor, 139 N. Y. 543, 570, 571.)

Even if the Commissioner had the power to enlarge the prescribed lines to be excavated so as to hold the city liable to pay an additional amount because of the enlargement (Kerbaugh, Inc., v. City of New York, 228 N. Y. 576; Odell v. City of New York, 238 N. Y. 623), the complaint does not allege that he so exercised the power as to compel performance by the contractor.

The order of the Appellate Division should be reversed and that of Special Term affirmed, with costs in this court and in the Appellate Division, with leave to plaintiff to serve an amended complaint within thirty days. Question certified answered in the negative.

Concur: Crane, Lehman, Kellogg, O’Brien and Crouch, JJ. Not sitting: Hubbs, J.

Ordered accordingly.


text:
    Harry Hansen, Respondent, v. Continental Insurance Company of the City of New York, Appellant.
    (Argued May 22, 1933;
    decided May 31, 1933.)

      Millard F. Tompkins and Arthur M. Boal for appellant.

      Ira A. Campbell and Roger B. Siddall for American Steamship Owners Mutual Protection and Indemnity Association, Inc., amicus curios.

      Sol Gelb and Emanuel Friedman for respondent.
   Crouch, J.

Defendant, a domestic insurance corporation, issued to the owner of the vessel Mascot a policy of marine insurance, as that term is defined in section 150 of the Insurance Law (Cons. Laws, ch. 28). Plaintiff, a member of the crew of the Mascot, was injured as a result of an explosion which occurred upon said vessel. In an action brought under the Jones Act (38 Stat. 1185; 41 Stat. 988) in a Federal court plaintiff recovered a judgment against the owner. Execution was returned wholly unsatisfied by reason of the insolvency of the owner. This action was brought to recover from the insurer the amount of that judgment not .exceeding the amount of the policy. The complaint herein is attacked for insufficiency, upon the ground that the policy was one to indemnify against loss, as distinguished from one to indemnify against liability, and that section 109 of the Insurance Law is not applicable to policies issued pursuant to section 150 of the Insurance Law.

If the policy indemnified the owner against loss, that is, for money actually paid by him in satisfaction of the judgment recovered by plaintiff, then we are of the opinion that the complaint is sufficient. (Brustein v. New Amsterdam Casualty Co., 255 N. Y. 137, 142.) It is true that section 109, when originally enacted, applied only to policies issued by casualty companies. Subsequent amendment of the section, however, made its provisions, in terms, applicable to all policies of insurance against loss or damage resulting from an accident to or an injury suffered by an employee or other person for which the person insured is liable. No good reason is suggested for assuming that the provisions of section 109 were not intended to apply to any policy issued by a stock company, then or thereafter authorized to insure against liability for personal injuries, whether on land or sea. We are not now called upon to deal with like insurance issued by companies incorporated under section 162 of the Insurance Law.

By the Laws of 1921, chapter 236, section 150 of the Insurance Law was amended for the express purpose of authorizing marine insurance companies to give complete coverage by insuring, not only against all perils of the sea, but against all hazards or liabilities, including personal injury liability, arising out of or in connection with the construction, repair, operation, maintenance or use of the subject-matter of such insurance. That the traditional contract of marine insurance was one of indemnity for money actually paid or loss actually suffered, is no reason for exempting such policies from the operation of section 109, when the companies issuing marine insurance chose to insure against loss arising from personal injuries. The same considerations of fairness and public policy which originally led to the enactment of section 109 of the Insurance Law (Cf. Vance on Insurance [2d ed.], § 178; Roth v. National Automobile Mutual Casualty Co., 202 App. Div. 667), apply no less to the liability features of marine policies than to the policies originally contemplated by that section. To those considerations may be added the desirability of uniformity in that type of insurance. To standardize policies in that field was an essential object of the legislation.

The order should be affirmed, with costs, and questions certified answered in the affirmative.

Concur: Pound, Ch. J., Crane, Lehman and O’Brien, JJ. Not sitting: Kellogg and Hubbs, JJ.

Ordered accordingly.


text:
    The People of the State of New York, Respondent, v. Vincent Walsh, Alfred Celentano, Joseph Celentano and Russell Kelly, Appellants.

      (Argued April 17, 1933;
    decided May 31, 1933.)

      Frederic R. Coudert, Jr., John A. Bolles and James D. Froelich for Vincent Walsh, appellant.

      Millard E. Ellison, Samuel W. Greenwald and Abraham L. Lazarus for Alfred Celentano, appellant.

      Robert E. Manley, Samuel Stern and Leonard Bronner, Jr., for Joseph Celentano, appellant.

      James D. C. Murray for Russell Kelly, appellant.

      Thomas C. T. Crain, District Attorney (Robert C. Taylor of counsel), for respondent.

      Arthur J. W. Hilly, Corporation Counsel (J. Joseph Lilly of counsel), for City of New York, amicus curice.

   Crouch, J.

The four defendants were jointly indicted in the common-law form for murder in the first degree. The fatal shot was fired by the defendant Walsh. The case was tried and submitted to the jury solely as a felony murder. The felony charged was robbery in a restaurant speakeasy. The victim was Joseph P. Burke, a police officer. All the defendants were found guilty and were sentenced to death.

The trial judge, after telling the jury that the point for them to decide was whether or not a felony had been committed, and if so, whether Officer Burke was killed while it was in progress, charged as follows: I am going to charge you as a matter of law in this case that if you believe the testimony of the People’s witnesses, if you believe the events, if you are satisfied beyond a reasonable doubt that the events transpired as detailed by the People’s witnesses, if that testimony is accepted by you, then Officer Burke was killed while these defendants'were participating in a felony, and if that is the case, then your only verdict can be one of murder in the first degree. If you find that is not the case, if you are not satisfied by the testimony of the People’s witnesses, of course, your verdict must be not guilty.”

And also as follows: If you find in this case that the defendants were acting in concert, if you find that they were engaged in the commission of a felony — the felony of robbery, if you find and you are satisfied beyond a reasonable doubt that the killing occurred as detailed by the People’s witnesses, then you should find them guilty. If you are not so satisfied, you should acquit them.”

If upon any hypothesis, warranted by the testimony of the People’s witnesses, the jury could have found that the commission of the robbery had come to an end before the killing took place, the instructions above quoted constitute prejudicial error. Their purport was something more than a mere statement that the People’s testimony sufficed to make out a case of felony murder, if the jurors believed it. There was a clear direction to the jury, not that they could find, but that they must find the. defendants guilty, if they believed the facts were as the People’s witnesses testified. The jury was precluded from finding the facts in accordance with the People’s testimony, and at the same time finding Walsh was not engaged in the commission of a felony when he killed Officer Burke.

The testimony of the People’s witnesses disclosed the following facts: In the city of New York, on the northwest corner of Seventh avenue and West One Hundred and Thirty-sixth street, ground floor, was located a restaurant speakeasy having a front entrance on Seventh avenue and a side entrance on West One Hundred and Thirty-sixth street, opening through a small vestibule into a rear room taken up with tables. The front room, separated from the rear by a screen or partition, contained a bar and a lunch counter. There were two doors between the bar room and the rear room. Immediately north of this establishment fronting on Seventh avenue was a stationery and cigar store... Back of both was a room, referred to as the “ entry,” with a toilet used in common. Doors led into the entry both from the rear room of the restaurant and from the rear of the stationery store. There was thus, by passing through the stationery store into the entry, a third means of access to the restaurant. The vestibule of the side entrance above referred to was a small compartment about three by four feet. The inner door contained a peek hole window, had a snap lock and was always kept closed by means of an automatic check. The outer door was always unlocked; Shortly before eight a. m., on Sunday morning, June. 12, 1932, in an automobile driven by defendant Kelly, the four defendants came to this place for the purpose of robbing it. The automobile was parked nearby with the motor running. Kelly .remained outside across One Hundred and Thirty-sixth .street; A. Celentano then entered the. restaurant by-the front, door and bought a glass of béer and a package-of-;cigarettes. ■ The only occupants of the restaurant were the barkeeper and the porter. A few minutes later J. Celentano and Walsh came in together through the front door. Both had guns. The two occupants were told to put up their hands, and did so. Four dollars were taken from the porter’s pocket, and sixteen or seventeen’dollars from the cash register at the back of the bar. The two occupants were taken to the entry at the rear; the porter remained there but the barkeeper came back and went behind the bar. Walsh remained in or near the entry to guard the porter, while the two Celentanos rifled the safe and the drawers back of the bar. While so engaged, a colored man and woman knocked at the side door which was opened by Walsh, who ordered them into the entry where the porter was. Walsh remained at or near the doorway of the entry. About this time three police officers, Regan, Rhodes and Burke, on their way to go on post, were informed at the corner of Seventh avenue and One Hundred and Thirty-sixth street that something was wrong in the restaurant. Thereupon Officer Burke stationed himself at the side door on One Hundred and Thirty-sixth street, and Officers Regan and Rhodes went to the front door. They could not get in. Officer Rhodes, evidently familiar with the premises, left Officer Regan and entered the stationery store to get in the restaurant through the back entry. Officer Regan kicked at the front door which was thereupon opened by one of the Celentanos. He entered, revolver in hand, told the Celentanos to throw up their hands, and proceeded to search them. Officer Rhodes, coming through the stationery store by way of the back entry, joined Officer Regan within a minute or two. He did not see Walsh. Walsh from where he had been standing had a view of the front door. It is a fair inference that he saw what happened when Officer Regan entered, and immediately started to make his escape through the side door into One Hundred and Thirty-sixth street. The porter, who was in the entry, testified he saw Officer Regan come in the front door, and that at that moment Walsh walked away from him. The barkeeper testifies that after Officer Regan entered and rounded up the Celentanos, he heard the side door close, and that right after the door closed, Officer Rhodes walked in from the entry. After Rhodes rejoined Regan they made the two Celentanos lie face down on the floor, and completed the searching. Walsh, in the vestibule, opened the outside door, saw Officer Burke standing at the left near the outside wall, drew back, closed the door, then partly opened it again, reached out and fired the fatal shot. Thereupon he fled in the direction of Eighth avenue and was subsequently captured. Kelly, the lookout, heard the shot and saw a fellow running down the street. After a short time he went to the car, drove away, abandoned the car and was subsequently arrested.

It is possible to have a factual situation in a case of felonious homicide where only one conclusion can be drawn as to whether or not the homicide took place during the commission of the felony. There have been such cases in this court. (People v. Hüter, 184 N. Y. 237; People v. Schleiman, 197 N. Y. 383; People v. Marendi, 213 N. Y. 600; People v. Marwig, 227 N. Y. 382.) The instances where a trial judge may charge the point as matter of law are, however, exceptional. (People v. Smith, 232 N. Y. 239; People v. Schleiman, supra, p. 390.)

Whether the robbery here was still in progress when the shot was fired, depends largely upon inferences to be drawn from the conduct of Walsh. The prosecution admits that the two Celentanos were under arrest and hence no act by either of them thereafter prolonged its commission. Kelly was across the street as a lookout and aid in the “ getaway.” In a legal sense he was aiding in the commission of the robbery. (People v. Usefof, 227 N. Y. 622; People v. Michalow, 229 N. Y. 325, 330.) In a practical sense, his mere presence could hardly be said to prolong the commission of a robbery if it had otherwise ended. It may be assumed that Walsh stood within the four walls of the building when he fired the shot. That is an important but not a conclusive circumstance. (People v. Smith, supra.) The jury could have found that the inner door of the vestibule had closed and locked behind him. If that was so, he was in effect definitely outside the restaurant proper. But neither is that alone conclusive. He. might have been entirely outside the building when he shot and still have been engaged in the robbery, if he was getting away with the loot or was doing anything to aid his confederates in getting away with it. (People v. Udwin, 254 N. Y. 255, 263; People v. Butler, 254 N. Y. 624.) But there is no evidence to show that he had any of the loot. The inference is to the contrary. The jury could have found that his entire conduct from the moment Officer Began entered the restaurant constituted flight and hence “ desistance or abandonment of the robbery. (People v. Moran, 246 N. Y. 100, 103.)

In short, even upon the testimony of the prosecution alone, the question of whether or not the homicide occurred during the commission of the felony was one of fact. It should have been left to the jury under instructions pointing out generally that the killing to be felony murder must occur while the actor or one or more of his confederates is engaged in securing the plunder or in doing something immediately connected with the underlying crime (Dolan v. People, 64 N. Y. 485); that escape may, under certain unities of time, manner and place, be a matter so immediately connected with the crime as to be part of its commission (People v. Giro, 197 N. Y. 152); but that where there is no reasonable doubt of a complete intervening desistance from the crime, as by the abandonment of the loot and running away, the subsequent homicide is not murder in the first degree without proof of deliberation and intent. (People v. Marwig, 227 N. Y. 382.)

The theory of homicide as a natural result of a conspiracy or plan- mutually to resist and overcome any opposition to escape (People v. Emieleta, 238 N. Y. 158; People v. Marwig, 227 N. Y. 382; 232 N. Y. 531) was not referred to on the trial and is not now in the case. There was a request, however, to submit to the jury, as to the defendant Walsh, the question. of murder in the first degree by premeditation, deliberation and intent, and to charge as to the lesser degrees of homicide. Since the jury conceivably could have found that the homicide did not take place during the commission of a felony,, and since the evidence was adequate to prove premeditated murder, it was error to refuse to charge as requested. (People v. Koerber, 244 N. Y. 147; People v. Moran, 246 N. Y. 100.)

One further point which may arise on a new trial should be briefly referred to. A witness for the prosecution upon cross-examination testified that shortly after the homicide he had made a written statement to the District Attorney. Counsel, in substance, thereupon asked for the production of the statement for use in cross-examination. An objection, on the ground that there was no rule requiring the production of such a statement, was sustained. This presents the question adverted to in People ex rel. Lemon v. Supreme Court (245 N. Y. 24, 34). The courts in many jurisdictions have considered and passed upon it. (See inter alia, People v. Davis, 52 Mich. 569; State v. Archer, 32 N. M. 319; Riggins v. State, 125 Md. 165; State v. Guagliardo, 146 La. 949; Centoamore v. State, 105 Neb. 452; contra, United States v. Baluyot, 40 Philippine Rep. 385; Arnstein v. United States, 296 Fed. Rep. 946; cf. 4 Wigmore on Evidence, § 2224.) We need deal with it only as it is presented on the record here. Without extended discussion, we are of the opinion that where a witness in a criminal case testifies to having made such a statement, and the statement is in court and an inspection of it by the presiding judge reveals contradictory matter, its use for cross-examination on the question of credibility may and usually should be permitted. “ The State has no interest in interposing any obstacle to the disclosure of the facts, unless it is interested in convicting accused parties on the testimony of untrustworthy persons.” (Cooley, Ch. J., in People v. Davis, supra.) It is conceivable, however, that the court upon inspection may find matter, the publication of which would be prejudicial to the public interest. In such case the statement would be privileged.' It has always been and still is the rule that the defense has no right to go “ upon a tour of investigation, in the hope that they would find something which would aid them.” (Arnstein v. United States, supra, p. 950.) When, however, it does appear that there is evidence in the possession or control of the prosecution favorable to the defendant, a right sense of justice demands that it should be available, unless there are strong reasons otherwise. The judgments of conviction should be reversed and a new trial ordered.

Crane, J. (dissenting).

These men were committing robbery. When caught at it, Walsh tried to shoot his way out. He killed while he and his associates were committing a felony. Therefore, I am for affirmance, even though there were slight errors in the charge.

Concur: Pound, Ch. J., Lehman and O’Brien, JJ. Crane, J., dissents in memorandum. Not sitting: Kellogg and Hubbs, JJ.

Judgments of conviction reversed, etc.