author: Sears, J. Conway, J.

text:
    The People of the State of New York, Appellant, v. Lester Samuels, Respondent.
    Argued November 28, 1940;
    decided December 31, 1940.

      Charles P. Sullivan, District Attorney (Edmund C. Rowan of counsel), for appellant.

      Thomas E. Dewey, District Attorney (Stanley H. Fuld and Richard G. Denzer of counsel), amicus curiæ.

      Mordecai Konowitz for respondent.
   Sears, J.

Defendant, a physician, was convicted in the Court of Special Sessions of the City of New York of the crime of perjury in the second degree upon an information by the District Attorney of the county of Queens. The judgment of conviction has been reversed on the law and the information dismissed by order of the Appellate Division, second department, a majority of the justices being of the opinion that the Court of Special Sessions was without jurisdiction over the subject-matter.

The information specifically accused defendant of perjury in the second degree, a misdemeanor, although the allegations of facts were sufficient to show the commission of the crime of perjury in the first degree, a felony. It is conceded that, if the information is to be construed to charge the commission of a misdemeanor, the Court of Special Sessions had jurisdiction.

The information specifies that the crime charged was committed by defendant as a witness in the trial of George Rothenberg on a charge of abortion; “ that in the said trial it became material to inquire and ascertain whether the said defendant Lester Samuels had received any communications from George Rothenberg the defendant on trial for said abortion. * * * And thereupon defendant Lester Samuels wilfully and knowingly testified falsely ” by denying that he had made certain answers to questions asked him at a hearing before the grand jury which indicted George Rothenberg, and that the aforesaid statements made by the defendant Lester Samuels upon said trial * * * were in a material matter in said action and were false * *

Before 1935 this information would have charged only a felony. The crime of perjury then consisted of swearing falsely to a material matter (Penal Law, § 1620; L. 1927, ch. 680) and was punishable by imprisonment for a term not exceeding ten years. (Penal Law, § 1633, as amd. by L. 1892, ch. 662.) The question of materiality would have been one of law. (People ex rel. Hegeman v. Corrigan, 195 N. Y. 1.) False testimony going to the credit of the witness has been held to be material. (People v. Courtney, 94 N. Y. 490; Wood v. People, 59 N. Y. 117.) The testimony here charged to be false relates to the credibility of the witness. The Court of Special Sessions would have been without jurisdiction.

In 1935 materiality ” was removed from the general definition of perjury and the crime was divided into two degrees. (L. 1935, ch. 632; Penal Law, §§ 1620, 1620-a.) Perjury in the first degree was defined as perjury as to any material matter, while perjury in the second degree was defined as perjury under circumstances not amounting to perjury in the first degree. (Penal Law, §§ 1620-a and 1620-b.) Perjury in either degree, however, remained a felony until the amendment of section 1633 of the Penal Law in 1936 which classified perjury in the second degree as a misdemeanor. (L. 1936, ch. 93.)

The changes were intended to broaden the scope of the statute relating to perjury but not to create a separate and distinct crime. (Law Revision Commission, Report of 1935, p. 229.) Otherwise the amendment of section 1620 of the Penal Law is meaningless. The section as amended defines one crime, perjury. To constitute that crime, materiality is no longer of the essence. Its existence may warrant an indictment for perjury in the first degree, but it does not constitute a different crime, so as to make such an indictment requisite. The degrees of the crime are not mutually exclusive. Notwithstanding the negative definition of perjury in the second degree, swearing falsely to an immaterial matter is in a legal sense necessarily contained within a description of false swearing to a material matter. By the amendments of 1935 and 1936 the crime of perjury became similar to other crimes with varying degrees and, like such crimes, subject to the provision of section 444 of the Code of Criminal Procedure. Views to the contrary are based principally upon what was said on the subject of materiality in People ex rel. Hegeman v. Corrigan (195 N. Y. 1). (Report of the Law Revision Commission, 1939, p. 307.) It must be remembered, however, that People ex rel. Hegeman v. Corrigan was decided when there were no separate degrees of perjury, and when materiality was an essential element of the crime. Under the present statute the People had the power to elect to try the defendant for a misdemeanor regardless of the gravity of his offense. (People v. Hirsh, 283 N. Y. 638; People v. Lefkowitz, 232 App. Div. 18; affd., 257 N. Y. 560.)

We find, in this record, however, error of law which sustains the reversal of the conviction. To establish perjury under our law it is still necessary to prove not only that false testimony was given, but that it was given willfully and knowingly.

Defendant owns a small hospital and is its chief surgeon. In the summer of 1936, a Mrs. Blake was admitted as a patient in the hospital. From Mrs. Blake’s statement of the history of her ailments, and from Ms own diagnosis, defendant concluded that an illegal abortion had been performed, and called the police. After the police had interviewed Mrs. Blake, defendant, in the presence of six other, doctors, operated on her. She died a month later. Thereafter a Dr. Rothenberg was indicted for the crime of abortion.

Before the grand jury defendant testified that at one-tMrty o’clock in the morning of the day following Ms operation, he was awakened by the telephone bell, and that the caller said he was George Rothenberg, and proceeded to discuss with him Mrs. Blake’s condition. The relevant part of defendant’s testimony before the grand jury is as follows: et ,Q. Do you know a Dr. Rothenberg? A. I do. Q. Has he worked, or has he had patients in your hospital? A. No. Q. You know him as a practicing doctor in Queens County? A. Yes. Q. And did he at any time commumcate with you in connection with this case? A. After I reported the case. Q. And did he come personally? A. By telephone. Q. And did you know it was Dr. Rothenberg that you talked to? A. Yes. Q. You know his voice? A. Yes. Q. You talked to him on the telephone before? A. Yes. Q. And you can swear the man you talked to was Dr. Rothenberg? A. Yes.”

Over a year and a half after he had so testified before the grand jury, defendant as a witness for the People on the trial of George Rothenberg, testified that on the night in question he had talked with someone over the telephone whose voice he believed to be that of Dr. Rothenberg. The court refused to allow the conversation to be given without fhrther identification of the caller. Following the ruling, there was a lengthy discussion in which the court, the District Attorney and Dr. Rothenberg’s counsel took part as to the proper manner of examining the witness so as to secure an unqualified answer. Each time defendant was asked by the District Attorney or the court who the telephone caller was, he would reiterate his belief that it was the defendant Rothenberg, and each answer would be followed by an objection from Dr. Rothenberg’s counsel and a discussion. Finally, treating defendant as a hostile witness, the District Attorney confronted him with statements made by him in the Magistrates’ Court in which he identified without qualification the voice of the caller as that of Dr. Rothenberg. Defendant admitted that he had so testified in the Magistrates’ Court. However, when asked whether he had given the above-quoted testimony before the grand jury, defendant said he did not give the answer, “ By telephone ” to the question, “ And did he come personally,” and that the answers to the questions, “ And did you know it was Dr. Rothenberg that you talked to? ” “You know his voice? ” and “ And you can swear the man you talked to was Dr. Rothenberg? ” were not “ yes.” His last words in this respect were, “ I still say I believe it was Doctor Rothenberg.” Present in defendant’s denial of his previous answers is the inference that the answers he had given were not unqualified.

The sole basis of the information against defendant for perjury is, as indicated above, his denial of his unqualified statements before the grand jury. Apart from the fact that these denials were false, there is nothing to show that defendant knew he was testifying falsely or that he did so willfully. There is no evidence that defendant had any interest in the fate of Dr. Rothenberg. If anything, the evidence points the other way. It was shown that defendant’s knowledge of Rothenberg was casual, that defendant had called the police and at all times co-operated with them. He evidenced no unwillingness to testify. The continued effort to make the defendant say with a degree of certainty greater than that of sincere belief that a voice heard over a telephone belonged to a particular person with whom he was not well acquainted was needless. (People v. Dunbar Contracting Co., 215 N. Y. 416.) Denial under the circumstances here presented of particular answers given a year and a half earlier, is fully consonant with fallibility of memory. We find the evidence insufficient to establish the defendant’s guilt beyond a reasonable doubt. (People ex rel. Hegeman v. Corrigan, supra.)

The order should be affirmed.

Conway, J.

(dissenting). An information was filed in the Court of Special Sessions of the City of New York, County of Queens, charging the defendant with the crime of perjury in the second degree. After trial the defendant was convicted. Upon appeal to the Appellate Division there was a reversal upon the law upon the ground that the crime charged was a felony of which the court of Special Sessions had no jurisdiction and the information was dismissed. Under section 543-a of the Code of Criminal Procedure it shall be presumed, for the purpose of an appeal to the court of appeals, that the appellate division reviewed the facts and was satisfied with the conviction in that respect, and that but for the alleged error of law, it would not have reversed the conviction.”

The facts which have been affirmed are: that the defendant made the statements attributed to him at a hearing conducted before the grand jury of the county of Queens, that they were false and were made and sworn to by said defendant willfully and knowingly. (People v. Marino, 271 N. Y. 317; People v. Yannucci, 283 N. Y. 546.)

We decided in People v. Hirsh (283 N. Y. 638), subsequent to the decision below, that the degrees of the crime of perjury were not mutually exclusive, but that the crime of perjury under the amendments of 1935 (L. 1935, ch. 632) and of 1936 (L. 1936, ch. 93) was similar to other crimes which were divided into degrees and that section 444 of the Code of Criminal Procedure was, therefore, applicable thereto.

The Court of Special Sessions, therefore, had jurisdiction of the crime charged against defendant, and the order of the Appellate Division should be reversed and the judgment of the Court of Special Sessions of the City of New York, County of Queens, affirmed.

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

Order affirmed.


source: Caselaw Access Project

author: Lewis, J. Sears, J.

license: Public Domain

text:
    In the Matter of Mae Madden et al., Respondents, against Grace A. Reavy et al., Constituting the Civil Service Commission of the State of New York, Appellants.

      Argued November 13, 1940;
    decided December 31, 1940.

      John J. Bennett, Jr., Attorney-General (Henry Epstein, Everett D. Mereness and Bernard L. Alderman of counsel), for appellants.

      Adrian Seligman, Alexander J. Brown and Joseph J. Ferone for respondents.
   Lewis, J.

The petitioners-respondents, twenty-five in number, comprising the clerical, maintenance and cafeteria employees of Union Free School District No. 1 of the town of Eastchester, in Westchester county, desire to have extended to their positions the benefits of the State Civil Service Law (Cons. Laws, ch. 7). Having met with delay in their efforts through official State agencies to accomplish that end they have instituted the present proceeding, under article 78 of the Civil Practice Act, by which an order is sought directing the appellant Civil Service Commission to take such action as may be required to bring their positions within the classified civil service in accord with applicable provisions of the Civil Service Law and the Rules for classified civil service promulgated thereunder.

An order at Special Term denying the application, without ;prejudice to its renewal, was reversed at the Appellate Division by an order and judgment now before us which direct the Civil Service Commission forthwith to do every act which effectually will place in the classified civil service the positions now held by the petitioners and to proceed to fill such positions in the manner provided by the Civil Service Law.

The decision of this court in Palmer v. Board of Education (276 N. Y. 222) was declaratory of no new law governing State civil service. It had, however, the salutary effect of placing emphasis upon the mandate contained within the civil service article of the Constitution (Art. V) which, as was pointed out (p. 228), “ applies to every position in the civil service of the State,” and which neither the Legislature nor administrative officers may disregard. (See, also, Matter of Carow v. Board of Education, 272 N. Y. 341, 344.)

The record in the proceeding now before us contains no evidence of a disregard by either the Legislature or administrative officers of the State of any mandate in the Constitution relating to civil service.

It does not go beyond common knowledge to say that since 1883, when civil service reform first became the subject of legislative action in this State (L. 1883, ch. 354), there has been consistent progress toward the ideal which became a constitutional objective — the establishment of a system of appointments and promotions in the civil service of the State, and in all civil divisions thereof, according to merit and fitness to be ascertained, so far as practicable,' by competitive examinations. (State Const. art. V, § 6.) Indeed it was the State of New York which first made the merit system — based upon appointment and promotion in the civil service by competitive examination — a part of its fixed public policy, by inserting in its Constitution a mandatory provision to that effect. (Hale v. Worstell, 185 N. Y. 247, 251.) In the marked progress made toward that ideal obstacles have been met and overcome, some of which were anticipated at the outset and more were unforeseen. (See Chittenden v. Wurster, 152 N. Y. 345.)

The present proceeding relates itself to a constant and besetting problem, which was foreshadowed by the first constitutional provision and remains today, viz, the problem of so administering the Civil Service Law that its benefits may be extended to “ all the civil divisions ” of the State, by means which are at once practicable and in the best interest of public business and those who conduct it_on behalf of government. In meeting that problem as it affects the State at large, those charged with the duty of administering the law quite naturally have dealt first with the larger units of government where population is a factor — the counties, cities and villages of the State.

Our decision in the Palmer case (supra), and later in Matter of Booker v. Reavy (281 N. Y. 318), served to give direction to thought by civil service employees in school districts and in other local civil divisions of the State upon the subject of their civil service rights under existing law. The same subject was brought before the Legislature of 1939 by the annual message of the Governor who drew attention both to the urgency and the magnitude of the problem involved and called for legislative action which would bring about its solution. In that message are data which bear upon the question now before us. In part it was stated:

To extend civil service to every local subdivision of the State is a task of tremendous proportions. Such extension will add to the present jurisdiction of the State Civil Service Commission approximately 39 counties, 931 towns and townships, 546 villages and 9,503 school districts. The figures alone indicate the enormity of this undertaking. Approximately 200,000 employees in the public service of the local units of the State will be’affected by this extension. There will arise the problems of certification of payrolls, classification of positions, conduct of examinations, promulgation of eligible lists, certifications, appointments and other matters of complex nature.

To provide the machinery for an orderly extension of civil service to these local units of government, I suggest that a commission be created by the Legislature to make a thorough study and formulate recommendations for the consideration of the Legislature in 1940, and that it work in co-operation with the State Civil Service Commission and the municipalities to be affected by such extension.”

In accord with the Governor’s recommendation a Commission was appointed by the Legislature to devise means by which the benefits afforded by the Civil Service Law may be extended to local subdivisions of the State including school districts. The members of that Commission have been working in co-operation with State and municipal civil service commissions to effectuate a plan which is practicable and by which such extension may be accomplished.

True it is that a delay has occurred in extending to the petitioners the benefits of the Civil Service Law to which they are entitled as a constitutional right. But in view of the vast number of administrative details which the problem involves and the possible necessity for legislative action to make provision for the enforcement of the law as extended, we cannot say upon the record at hand that such delay has been unreasonable. Nor do we believe that the present proceeding is one which warrants action by the judicial branch of the State government as directed by the order now before us. Such order, we believe, will confuse and may thwart the studied efforts, mentioned above, which are being exerted by the executive and legislative branches of the State government in co-operation with the Civil Service Commission, to bring about a solution of the problem. (Cf. Matter of Andresen v. Rice, 277 N. Y. 271, 282.)

Finding in the record before us no evidence of a delay by the Civil Service Commission so unreasonable, in the circumstances presently existing, as to justify the order here upon appeal, we conclude that the order of the Appellate Division should be reversed and that of Special Term affirmed, without costs.

Sears, J.

(dissenting). The petitioner has shown a clear legal right. If more time is necessary to adjust matters in the Civil Service Commission it can be granted at the Special Term.

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

Ordered accordingly.


author: Loughran, J. Conway, J.

text:
    The People of the State of New York, Respondent, v. Harry Maione and Frank Abbandando, Appellants.
    Argued November 28,1940;
    decided December 31, 1940.

      Sydney Rosenthal, Harry G. Anderson, Samuel Bader and Benjamin J. Jacobson for Harry Maione, appellant.

      Alfred I. Rosner, Michael W. DeFeo and James J. Horbatkin for Frank Abbandando, appellant.

      William O’Dwyer, District Attorney (Solomon A. Klein, Henry J. Walsh and Burton B. Turkus of counsel), for respondent.
   Loughran, J.

The defendants have been convicted of murder in the first degree.

The principal witness for the People was Abraham Reles, a confessed principal in the crime. His account of the commission of the murder was in many particulars in agreement with undisputed testimony of other witnesses in respect of the condition of the body of the deceased and of the circumstances under which it was found by the police. Such independently established external facts had in themselves no tendency to connect any identifiable person with the crime. In his charge to the jury (quoted in the dissenting opinion), the trial judge included those facts in his enumera,tion of fifteen items of evidence which he said could — if credited by the jury — be accepted by them as corroboration of Reles. This, we think, was error.

Counsel for the defendant Maione say in their brief: “ Most of the items of testimony referred to by the court * * * cannot be regarded as corroborative of Reles’ testimony, inasmuch as they do not tend to connect the defendant with the commission of the crime. * * * Which of the items the jury found to be established by the evidence and accepted as corroboration is, of course, a matter of Speculation. It is therefore no answer to say that some of the items were competent corroboration * * *. One thing about which there can be little doubt, however, is that some of the items which did not constitute corroboration must have been found by the jury to have been established by the evidence * * *. These items had reference to the physical facts of the crime, as to the existence of which facts there is no controversy. They were of such an undisputed character that their inclusion in the court’s charge as items of corroboration was tantamount to an instruction that no corroboration was required at all.” The error so complained of cannot, we think, be dismissed as immaterial.

In effect, the jury were told by the court that evidence in corroboration of an accomplice need not extend beyond the corpus delicti. Approval of that proposition would virtually cancel section 399 of the Code of Criminal Procedure. Section 399 requires that an accomphce must in some degree be corroborated in his testimony that an accused was implicated in the commission of the crime. Evidence which merely shows that the crime was committed in the fashion described by an accomphce is not such corroboration. (See People v. Feolo, 284 N. Y. 381, decided herewith.)

The judgments of conviction should be reversed and new trials ordered.

Conway, J.

(dissenting). In the matter of corroboration, the court charged that the witness Reles was an accomplice as a matter of law and explained the necessity for the production of additional evidence tending to connect the defendants with the commission of the crime. Defendants claim that certain of the items of corroboration submitted by the court to the jury could not be found to be such corroboration.

Each item of evidence offered as corroboration, when considered separately, need not tend to connect the defendants with the commission of the crime. “ Matters in themselves of seeming indifference or light trifles of the time and place of persons meeting may so harmonize with the accomplice’s narrative as to have a tendency to furnish the necessary connection between defendant and the crime.” (People v. Dixon, 231 N. Y. 111, 116, 117.) “ The state is not called upon to point to some single or isolated fact which in itself, unrelated to other proven facts, will be sufficient corroboration.” (2 Wharton on Criminal Evidence [11th ed.], § 753, p. 1271.)

The portions of the charge preceding the itemization and following it must be read together. This part of the charge is as follows: “Concerning the testimony of Reles, there are certain points .of evidence which are here in the record and which, if believed by you to be true, may be accepted as corroboration. In charging you on these points the court expresses no opinion. It is simply picking them out and showing what, under the law, you may accept if you see fit or may reject if you see fit, but which, if accepted, may be viewed by you as corroborating the testimony of the various witnesses that a rope was around the neck and stab wounds on the body and a slash on the head. Secondly, the manner in which the body was placed in the car, as shown by the photographs. Third, the testimony of witnesses as to the finding — or a witness — of a type-written note in the dead man’s pocket. Next, the misspelling of the word ‘ friend,’ as shown by the note. Next, the expert testimony by Officer O’Malley, of the Bomb and Forgery Squad, that the typewriting was done by a novice and that there had been difficulty with the ribbon. Next, the character of the contents of the note as an alleged warning to those who had given information to Mr. Dewey, if that be in fact the reasonable inference that you may see fit to draw from the evidence. Next, the body being actually found in a different Precinct. Next, the body being actually found in a stolen car with false license plates. Next, the actual borrowing of the tan car by Abbandando for a period covered by the alleged murder arrangements. Next, the testimony by Detective Browser of having had many talks with Rudnick in the Brownsville and East New York sections. This has a bearing on the theory that Rudnick came under suspicion by the defendants as a police stool-pigeon. Next, the testimony by Maffetore that at Maione’s request he waited around until after the murder, but without knowing what was going on until after the murder had been done, and that he was called into the garage to help dispose of the body; that when the body was being put in the car by Maione, Abbandando and Strauss, the latter struck it with the ice-pick and Maione hacked it on the head with a cleaver. Next, the testimony by Goldman, the taxi-driver, that he saw Rudnick alive as late as 2:30 A. m. Next, the testimony by Lebirto that about midnight, entering the garage office unexpectedly, he saw Strauss suddenly drop a rope which he had been handling, and that later, being puzzled by Rudnick’s failure to leave the garage, he entered and searched and he failed to find the rope. Also that when he was playing cards across the street he saw Abbandando and Riidnick with the tan car enter the garage at about 4:30 or 4:45 a. m.; that both Abbandando and Maione had been there about midnight previously. That about ten minutes after Abbandando and Rudnick arrived, Abbandando came out and called Catalano, and that later he, the witness, saw the black car being driven by Catalano leave the garage, followed by Abbandando in the tan Ford and also by others. I do not recall just what the evidence was as to whether or not the others entered Reles’ car, so I have not mentioned that. Also the testimony by Satriale having loaned his tan car to Abbandando for several weeks, ¡beginning in April.”

The defendants urge that the court committed error when, immediately following the itemization, it said: “ Now, gentlemen, those are the points of alleged corroboration of Reles. It is for you and you alone to say whether the evidence on those points given by the other witnesses mentioned is true or is not sufficiently shown to be true, because you are the sole judges of the facts. But if you find those points to be true, or any of those points to be duly established, then it is for you to say whether such as you find to be sufficiently established are corroboration tending to connect the defendants or either of them with the commission of the crime, as provided by law.”

All of this portion of the charge was modified by the words given by the other witnesses mentioned.” Those witnesses were Officer O’Malley, Detective Browser, Maffetore (I think the court meant Catalano), Goldman and Lebirto (Lebito). The charge, as so understood, is substantially correct. I say substantially because the testimony of Officer O’Malley was not corroboration of the testimony of the witness Reles and the testimony of Detective Browser as to the fact that he spoke to Rudnick in the neighborhood a number of times, was not relevant. These were not, however, errors requiring reversal and are not the points in connection with this portion of the charge upon which a 'reversal is sought. Defendants predicate reversible error upon the last sentence of the charge as quoted supra, and upon the use of the word “ any ” therein. The defendants read that sentence to mean that if the jury found any one of the fifteen items to be true that it might find that item to be sufficient corroboration of Reles’ testimony. That is not as I read the sentence. As I read it, the word “ any ” means some ” and is further modified by the words “ given by the other witnesses mentioned.” In other words, the jury was told that it was for them to say whether the evidence on the fifteen items given by the other witnesses mentioned, was true, or whether any of the items had been established and that then it was for them to say whether such as they found to be sufficiently established were (“ are ”) corroboration tending to connect the defendants or either of them with the commission of the crime as provided by law. As I read the sentence, the word “ such ” indicates plurality, especially when followed by the word are ” before the word corroboration.” It has been said that the entire charge has to be considered and not a sentence or two of it. In this instance it is not a sentence or two upon which we are asked to reverse this conviction but a three-letter word, any,” in a lengthy charge.

There was not only ample evidence which, if believed by the jury, supphed the required corroboration of Beles but evidence which estabhshed the defendants’ guilt to the point of demonstration.

The judgments should be affirmed.

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

Judgments of conviction reversed, etc.


author: Sears, J. Lehman, Ch. J.

text:
    In the Matter of the Estate of James E. Maiden, Deceased. Winnie Boothman et al., Appellants; Elizabeth A. Maiden, Respondent.

      Argued November 14, 1940;
    decided December 31, 1940.

      Frank Leuci and Herman Saperstein for appellants.

      W. Eugene MacLean for Elizabeth A. Maiden, respondent.
   Sears, J.

The petitioner, Elizabeth A. Maiden, widow of the deceased, in this proceeding has sought to establish the validity and effect of an election by her to take her share of her husband’s estate as in intestacy as provided in section 18 of the Decedent Estate Law (Cons. Laws, ch. 13). Subdivision 5 of that section is as follows: No wife who has abandoned her husband shall have the right of such an election.”

The sole question before us on this appeal is whether the petitioner is a wife who has abandoned her husband and, therefore, has not the right of such an election. The administrator with the will annexed and certain legatees assert in their answers to the widow’s petition that she abandoned the deceased during the deceased’s lifetime. The burden to establish abandonment is and remains at all times upon those asserting it. (Matter of Rechtschaffen, 278 N. Y. 336.) In this case the administrator and the legatees, to prove the abandonment, read from the deposition of the petitioner which had been taken before the hearing upon the stipulation of all the parties appearing. In the deposition the petitioner testified that she left her husband’s home in Astoria in the afternoon of the 1st day of November, 1928, after having had a conversation with him the evening before. She had previously on the morning of that day sent away two trunks filled with her belongings. On behalf of the petitioner, another part of her deposition was_read wherein she stated that the reason for her departure was his continued insistence in her participating' with him in acts of sexual perversion; that this conduct continued throughout the period that they lived together, that is, from the date of their marriage on July 27, 1927, to the time of her departure, and that his conduct finally wore upon her health to such an extent that she consulted a physician and shortly thereafter separated from him. There is no other proof in the case, except testimony of witnesses who knew that Mrs. Maiden was living separate from her husband, and of one witness who testified as to meeting her and calling her Mrs. Maiden, to which address the petitioner responded by saying that she was not Mrs. Maiden and that the witness was mistaken. There is no proof that either petitioner or deceased sought an adjudication of divorce or separation.

On the evidence, the Surrogate found an abandonment and determined that the petitioner was entitled to no part of the estate of the deceased. On appeal to the Appellate Division the decree was reversed on the law and the facts, the petitioner’s prayer for a validation of her election was granted and the proceeding remitted to the Surrogate’s Court to enter an order accordingly.

In Matter of Sadowski (246 App. Div. 490, 492) the Appellate Division in the fourth department had occasion to examine the provisions of section 18 of the Decedent Estate Law, particularly subdivision 4, which reads, “ No husband who has neglected or refused to provide for his wife, or has abandoned her, shall have the right of such an election,” and reached the conclusion that the quoted subdivision 4 was an expression by the Legislature of its intent to exclude from the benefits of the statute a husband against whom a judgment of separation could be sustained under section 1161 of the Civil Practice Act. We adopt the reasoning in the opinion in this case and similarly conclude that subdivision 5 is an expression by the Legislature of its intent to exclude from the benefits of the statute a wife against whom a judgment of separation could be sustained.

To constitute abandonment under this statute something more is neceásary than a departure from the marital abode or a living apart. It is argued, however, that a prima facie case of abandonment is established by showing the departure from the marital home followed by the spouses living separately. To amount to abandonment the departure of a spouse from the marital home must be unjustified and without the consent of the other spouse. The reason for leaving is inseparable from the act. Human relations between spouses are so complex and influenced by so many circumstances, separations occur in so many instances with fault and without fault, with consent and without consent that we deem the conclusion of fault on the part of the person leaving the joint home too uncertain for inference alone.

Whether we believe the petitioner’s testimony as to the cause of her leaving or not, the appellants failed to sustain the burden of proof. If we believe the petitioner’s testimony as to her reason for leaving her husband, she was justified. If it is not believed, the record is bare of proof that the petitioner’s leaving her husband and his home was an abandonment.

The order should be affirmed, with costs to all parties filing separate briefs payable out of the estate.

Lehman, Ch. J.

(dissenting). The petitioner-respondent is the widow of the decedent and she has a personal right of election, as provided in section 18 of the Decedent Estate Law, to take her share of the decedent’s estate as in intestacy, unless she has abandoned ” her husband and, as provided in subdivision 5 of that section, has thus lost the right of election which she would otherwise have. I agree with the holding that the Legislature intended under that subdivision to exclude a wife from the benefits of the statute only where the wife’s “ abandonment ” would be cause for an action of separation as provided in section 1161 of the Civil Practice Act. I agree, too, with the holding that the administrator of the estate and the legatee have the burden of establishing such an abandonment. I dissent only from the conclusion that they failed to sustain that burden in this case.

Concededly, the wife left her husband in November, 1928. She took with her two trunks containing her belongings and it is clear that she did not intend to five with him again. Though her husband died more than eight years after she had left him, the wife never, in the interval, saw the decedent or communicated in any way with him. She brought no action against him and made no claim against him during his life for support. It is true, as Judge Sears says in Ms opinion, that “ The reason for leaving is inseparable from the act.” Perhaps only the wife knew the reason for her act. At least it is certain that only the husband or the wife could know the reason. The husband’s lips are sealed by death; the wife has offered an explanation of her act wMch would furnish justification if credited. The Surrogate, as the trier of the facts, refused to give it credence and found that she had abandoned her husband. The reversal by the Appellate Division of the decree of the Surrogate’s Court was not upon the ground that the Surrogate should have accepted the testimony of the wife but upon the ground that if that testimony is rejected the record is bare of proof that the wife abandoned ” her husband; and in tMs court no other ground has been considered.

Doubtless proof or concession of the fact that a wife left the joint home, even with intent not to five with her husband thereafter, would not, standing alone, sustain a finding that she acted without justification and without consent of her husband. Here there is much more. A wife who has had no communication with her husband for more than eight years prior to Ms death and made no claims upon him for separate support at a time when the husband could have testified as to what occurred prior to Ms wife’s departure, seeks a share of Ms estate after Ms death when she alone can explam the reasons for her departure. The decision of the Appellate Division means, I think, that though the wife is the only person who could show whether her act, at least equivocal, was justified by misconduct of her husband, her assertion of a right to wMch she would not be entitled if her act was without justification can be defeated only by affirmative proof that the husband was without fault and gave no consent. That where the wife gives false testimony to establish that the husband was guilty of misconduct wMch justified her in leaving him, the trier of the fact may not draw an inference that she could not truthfully testify that her husband was gmlty of misconduct justifying her act. Such a holding seems to me illogical and calculated to thwart the purpose of the statute and to place a premium upon dishonesty.

The order of the Appellate Division should be reversed and the decree of the Surrogate affirmed.

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

Order affirmed, etc.


author: Lewis, J.

text:
    Edmund D. Read et al., Respondents, Impleaded with Others, v. Lehigh Valley Railroad Company, Appellant.

      Argued October 7, 1940;
    decided December 31, 1940.

      H. S. Ogden for appellant.

      Abraham Marcus, Samuel Paul Puner, Seymour Herzog, Philip Shapiro, James F. Hart and Mark I. Tager for Edmund D. Read et al., respondents.

      Isaac Gluckman, Stanley S. Casden and Bernard Gitlin for Isidore M. Hanft et al., respondents.
   Lewis, J.

An order of consolidation has enabled Special Term, by the single judgment entered herein, to determine questions common to numerous actions which were instituted by the several plaintiffs as a means of compelling the defendant Lehigh Valley Railroad Company, as guarantor, to redeem at their maturity certain bonds issued by Pennsylvania and New York Canal and Railroad Company. It will be convenient to refer to the defendant guarantor and to the original obligor respectively as the “ Lehigh ” and the Canal Company.”

The demands of the several plaintiffs are predicated upon Lehigh’s guaranty to make “ punctual payment of the principal and interest * * * when and as the same becomes due and payable,” which guaranty was indorsed upon registered bonds in the amount of $10,000,000 issued by the Canal Company on April 1, 1888, and became due April 1, 1939. Prior to their due date, however, Canal Company, as obligor, and Lehigh, as guarantor, proposed to the bondholders an agreement whereby the term of the bonds maturing April 1, 1939, should be extended ten years provided assent to such extension should be given by the holders of bonds affected thereby sufficient in amount to satisfy a committee appointed pursuant to the plan. With the approval of such committee the planned extension was declared operative March 14, 1939, when the holders of 88.9 per cent of the bonds issued by Canal Company and guaranteed by Lehigh had given their consent. Among those who assert ownership of the bonds, but who claim to have withheld their assent to the extension plan, are the present plaintiffs who, having failed to receive payment of the principal and interest due April 1, 1939, have brought numerous suits, now before us as a single action, to enforce against Lehigh its guaranty agreement.

The Appellate Division has affirmed the order and judgment of Special Term which, except as to the plaintiff Rosenbluth, granted motions by the plaintiffs for summary judgment for the relief demanded in the several complaints, and has denied the defendant’s motion for summary judgment dismissing each complaint. As to the plaintiff Rosenbluth the Appellate Division affirmed the order of Special Term denying the defendant’s motion to dismiss the complaint and directing a severance of the action. ■ In granting leave to appeal to this court it certified the question, Does the complaint of the plaintiff, Jacob Rosenbluth, state facts sufficient to constitute a cause of action? ” Upon the plaintiffs’ motions for summary judgment Special Term and the Appellate Division have-ruled that in no one of the answers, except in the action of the plaintiff Rosenbluth, has the defendant raised a substantial issue of fact. Our conclusion is to the contrary.

Although the defendant’s answers and supporting affidavits assert a number of alleged issues of fact, which it claims require a trial before judgment may be had, we rest our decision upon two of such issues which we conclude are tendered — the issue of ownership by the plaintiffs of the bonds they seek to redeem and the issue whether there is law extant in Pennsylvania, governing the enforcement of a guaranty of payment, of which the defendant may avail itself to require the plaintiffs, in response to its written demands, to exhaust their remedies against the Canal Company, as obligor, before proceeding against the guarantor.

In each of the actions consolidated — except that of the plaintiff Weiss, who is the registered owner of the bonds which form the basis of her action — ownership of the bonds in suit is alleged by the plaintiff and denied by the defendant.

All of the bonds in suit are payable to the registered owner hereof, or to the legal representative of such registered owner ” and are transferable by the holder hereof only, in person or by his attorney duly authorized, upon the books of said company * * * a certificate of every such transfer to be endorsed hereon.” At the time the bonds were issued by the Canal Company in 1888, Lehigh caused to be indorsed upon each the following guaranty: “ For a valuable consideration the Lehigh Valley Railroad Company hereby guarantees to the holder of the within Bond the punctual payment of the principal and interest thereof when and as the same becomes due and payable.” It is conceded that both the principal obligation of the bonds and the guaranty of payment by Lehigh were executed in Pennsylvania and were to be performed in that State. The plaintiffs have failed either to plead or prove the law of Pennsylvania, as it bears upon the language of the principal obligation or the guaranty. Accordingly we may proceed upon the assumption that the law of the foreign jurisdiction accords with the law of New York upon the subject. (Cherwien v. Geiter, 272 N. Y. 165, 168; Weissman v. Banque De Bruxelles; 254 N. Y. 488, 495; Matter of Marchant v. Mead- Morrison Mfg. Co., 252 N. Y. 284, 303.) As the guaranty was indorsed upon each bond at the time of the bond issue we may interpret the language of the guaranty as referable to the terms of the bonds. (Catskill Nat. Bank v. Dumary, 206 N. Y. 550, 555; Everson v. Gere, 122 N. Y. 290, 292; Church v. Brown, 21 N. Y. 315, 319; Rogers v. Kneeland, 13 Wend. 114, 122.)

Applying that rule to our present problem we conclude that when Lehigh guaranteed payment of principal and interest to the holder of the within bond ” its obligation was to pay the “ holder ” referred to in that provision of the bond itself which states: This bond is transferable by the holder.hereof only, in person or by his attorney duly authorized, upon the books of said company. * * Such “ holder * * * upon the books of said company ” is the registered owner ” of the bond, from which fact it follows that both the principal obligation of the bond and the guaranty of payment run to the same party, and thus the discharge of Lehigh’s obligation as guarantor serves to discharge Canal Company’s principal obligation.

This court has had occasion to consider bonds payable to the registered holder ” with special reference to those inherent qualities which give them facility of circulation. In Reynolds v. Title Guarantee & Trust Co. (240 N. Y. 257, 262, 263) the opinion by Lehman, J., now Chief Judge of this court, states: “ Though a corporate bond payable to the registered holder ’ and by its terms transferable by the holder only upon the books of the trustee may not be a negotiable instrument in a strict sense, * * * yet as this court said of certificates of stock in N. Y. & N. H. R. R. Co. v. Schuyler (34 N. Y. 30, 82): ‘ It was never intended to lock up those instruments in the hands of the stockholders named in them — but to give to them every practicable facility as the basis of commercial transactions.’ Undoubtedly they were intended to pass easily from purchaser to purchaser and by proper indorsement, ownership as between seller and purchaser could be transferred. When the lawful registered holder delivered these bonds properly indorsed to the broker and executed an irrevocable power of attorney for their transfer on the books of the trustee, the broker acquired a right to the bonds which he could protect by compelling a transfer on the books of the trustee. * * * The bond itself embodied the corporate obligation and, aside from any general rule that ordinarily delivery of a bond must accompany transfer of title, * * * it is clear from its form that the corporation issuing it intended that, at least, the equitable title and the right to compel registry should be transferable through delivery of the bond when the blanks upon it were properly filled out.”

Reading the term “ registered owner,” as employed in the bonds here involved, in the light of the interpretation suggested in the opinion last quoted above, it follows that the obligation of Canal Company under the terms of its bonds, the guaranty of payment by Lehigh, and the cause of action upon the guaranty, were owned and may be enforced by the possessor of the bonds who is in fact registered as the owner upon the books of the company, or has those muniments of title by which he can compel the company to register in his name the bonds he holds.

With the exception of the plaintiff Weiss, the plaintiffs admittedly are not registered on the books of the company as the owners of the bonds of which redemption is sought. Nor do we find uncontroverted allegations that the plaintiffs are possessed not only of the bonds which are the bases of their actions but also those essential instruments of title by which registry of ownership upon the books of the company may be compelled.

True, the present plaintiffs have alleged in their complaints that they are the owners by assignments or otherwise of the bonds they seek to redeem. But these allegations in each instance are put in issue by the answer. It should also be said that it appears from supporting affidavits submitted by a number of the plaintiffs that, upon the motion for summary judgment, they presented in court the bonds upon which they sue. None of the bonds, however, except those of the plaintiff Weiss, were indorsed as having been registered in the name of the plaintiff as owner. And in no instance did a plaintiff, as an alleged holder of a bond, give proof by affidavit or otherwise that he was in a position to compel registry of ownership in his name. Indeed it appears in some instances that the bonds remained registered in names of others than the plaintiffs after the commencement of the actions. It also appears from an affidavit filed by the defendant that there were presented by a number of the plaintiffs transfer powers in blank, some of which were dated after the commencement of the actions upon the bonds to which they referred. In short, with the exception of the plaintiff Weiss, there are no uncontroverted allegations in the complaints and the plaintiffs’ supporting affidavits, so conclusive as to preclude a triable issue of fact upon the question of ownership of the bonds in suit.

There remains for consideration the alleged issue which arises from the defendant’s assertion that, when the Pennsylvania law of exoneration is applied to the pleadings in each action, it serves to release Lehigh from its obligation as guarantor. None of the plaintiffs are in agreement with the defendant’s claim that a statute and the common law of Pennsylvania invoked by the defendant and relating to the doctrine of exoneration of a guarantor of payment, are available as a defense to the plaintiffs’ demands. The plaintiffs deny that there exists a law of the foreign jurisdiction which requires of them compliance with the written demand made by Lehigh that before they proceed to enforce the guaranty, they must exhaust their remedies to collect from Canal Company as obligor the debt represented by each bond. “ The question of the effect to be given to the foreign law within this State by the courts of this State must be determined in accordance with the law of this State.” (Moscow Fire Ins. Co. v. Bank of New York, 280 N. Y. 286, 303.) But the question of what is the law of the foreign jurisdiction is one of fact. It * * * must be proved as facts are proven.” (Fitzpatrick v. International Ry. Co., 252 N. Y. 127, 138; Petrogradsky M. K. Bank v. National City Bank, 253 N. Y. 23, 34; Croker v. Croker, 252 N. Y. 24, 26.) It has been made a triable issue by the parties to this action.

As to the complaint of the plaintiff Rosenbluth, the indorsements which appear to have been stamped upon the bond in suit and which relate to an assent to the extension plan, present an issue of fact to be tried.

The order of the Appellate Division denying the motion to dismiss the complaint served by the plaintiff Rosenbluth and severing the action should be affirmed, with costs, and the certified question answered in the affirmative. As to the remaining plaintiffs, the judgment of the Appellate Division and of the Special Term should be reversed and the plaintiffs’ motions for summary judgment denied without costs. The order of the Appellate Division affirming the order of Special Term denying defendant’s motion for summary judgment should be affirmed without costs.

Lehman, Ch. J., Loughran, Finch, Rippey, Sears and Conway, JJ., concur.

Ordered accordingly.


text:
    In the Matter of Philip Hilsenrad, Respondent, against Frieda S. Miller, as Industrial Commissioner of the State of New York, et al., Appellants.

      Argued November 28, 1940;
    decided December 31, 1940.

      John J. Bennett, Jr., Attorney-General (Bernard L. Aiderman of counsel), for appellants.

      John T. DeGraff for respondent.
   Lewis, J.

Our inquiry goes to the question whether by employment for ten months in the State civil service, all of which was under a temporary appointment, the petitioner gained the legal status of a permanent civil service employee. The material facts are not in controversy.

The petitioner passed a civil service examination for the position of law case investigator in the Department -of Labor. His rating qualified him as No. 5 on the eligible list promulgated for that position. While awaiting appointment the petitioner and all others on the newly-created eligible list received from the State Industrial Commissioner a letter which read in part: “ Would you accept, if offered, temporary appointment as Labor Welfare Investigator for a period of from one to five months with possibility of permanency at a salary of $1,700 per annum in our Albany office?” (Emphasis supplied.)

After declination, or failure to respond, by all those who qualified above the petitioner on the eligible list, the petitioner accepted the offer and promptly received from the Industrial Commissioner a written communication that he * * * had been selected for appointment to the position of Labor Welfare Investigator in this Department, at a salary of $1,700 per annum, for a temporary period from one to five months with possibility of permanency, effective Tuesday, March first, 1938.”

The petitioner served under such appointment from March 1 to July 31, 1938, and, upon the request of the Industrial Commissioner, was continued on a temporary basis ” for a period of one month until September 1, 1938. When the Industrial Commissioner again informed the Civil Service Commission in September, 1938, of her desire “ to continue [the petitioner’s] temporary services,” she was advised that the period of such temporary employment had expired and that it would be necessary to recanvass the eligible fist in order that another temporary appointment might be made, if a listed person could be found who was willing to accept such employment. While such a recanvass was in progress the petitioner was allowed to continue in his position until December 31, 1938, when his services were terminated and a new appointment was made to the temporary employment previously held by him.

Following his dismissal the petitioner instituted the present proceeding to enforce his reinstatement as a labor welfare investigator in the Department of Labor as of January 1, 1939, at a salary of $1,700 per annum. His claim is that even though his original appointment was for temporary employment, his retention in service for a period of ten months entitles him to the legal right of tenure which is an incident to permanent civil service employment.

The proceeding comes before us upon an appeal by the defendant, by our leave, from an order of the Appellate Division unanimously affirming the order of Special Term which granted the petition herein.

The original communication by the State Industrial Commissioner, which inquired whether the petitioner “ would accept, if offered, temporary appointment as Labor Welfare Investigator,” was definite in its statement that the appointment which the petitioner was to consider was temporary. After the petitioner had signified his willingness to accept such employment the written notice of his selection again placed emphasis upon the temporary character of the appointment. These facts leave us in no doubt that the petitioner was fully advised when he accepted the appointment that his employment would be temporary.

At the time the appointment became effective, on March 1, 1938, the Industrial Commissioner was authorized by statute to make a temporary appointment under the following conditions (Civil Service Law [Cons. Laws, ch. 7], § 15, subd. 3): “When the services to be rendered by an appointee in the state service are for a temporary period not to exceed one month and the need of such service is important and urgent, the appointing officer may select for such temporary service any person on the proper list of those eligible for a permanent appointment without regard to his standing on such list.” (See, also, Civil Service Rule VIII, subd. 6.)

In circumstances where the above statute is applicable, we believe its provisions are mandatory and may not be evaded. Upon the present record and in the absence of a clear showing of an abuse of administrative discretion by the Industrial Commissioner, we may assume that the appointment of the petitioner was made at a time when, within the language of the statute, “the need of such service [was] important and urgent.” However, we know of no authority which then enabled the Commissioner to make an original appointment “ for a [temporary] period of from one to five months,” as was done in this case. Nor was there legal sanction for the phrase “ with possibility of permanency ” which the Commissioner, in two written communications to the petitioner, added to the clause descriptive of the appointee’s tenure.

The appointment in the first instance was clearly “ temporary ” as that term is employed in the Civil Service Law. It was not an appointment made “ provisionally ” under section 15, subdivision 1, because concededly there was in this case an existing list of eligible persons which was treated as appropriate to the position. (Civil Service Rule VIII, subd. 4.) Nor was it an appointment for a probationary term. There is nothing of record before us to show that the appointing officer, in notifying the petitioner of his selection, specified the appointment as being “ for a probationary term only.” (Civil Service Rule XII, subd. 1, and see Rule VIII, subd. 8.) Indeed, as we have seen, the two written communications from the Industrial Commissioner to the petitioner relating to his appointment emphasized its temporary character; and the later correspondence between the Industrial Commissioner and the Civil Service Commission relating to extensions consistently referred to the petitioner’s employment as continuing “ on a temporary basis.”

The Industrial Commissioner had authority to appoint the petitioner for “ a temporary period not to exceed one month.” (Civil Service Law, § 15, and see Koso v. Greene, 260 N. Y. 491, 494.) The statutory term thus prescribed was short. It was, perhaps, too strict a limitation upon a term of temporary appointment which the Legislature, in its wisdom, has since extended under carefully defined conditions. (Laws of 1940, ch. 612, amending Civil Service Law, § 15, subd. 3.)

But the one-month period fixed by the statute when the petitioner was appointed on March 1, 1938, had been prescribed by the Legislature. It could not be extended by Civil Service Regulation 13 — an administrative measure which presumes to enable an appointing officer to extend without limit the term of a temporary appointment. As such regulation was inconsistent with and contravened the provisions of section 15, subdivision 3, of the Civil Service Law (See, also, § 10), it was not effective to authorize a temporary appointment for a term in excess of one month.

Our conclusion is that the fact that by a succession of extensions the petitioner was continued in his position for a period of nine months after the expiration of the statutory term for a temporary appointment, did not serve to invest him with rights, including tenure, which the law attaches to the status of permanent civil service employment. Being exempt from the usual civil service requirements for appointment, temporary appointees “ * * * are entitled to none of the advantages secured by period of tenure under the civil service rules.” (Koso v. Greene, supra, p. 494.) In the case last cited the opinion by Crouch, J., states (p. 495): “ Permanent appointments are made without reference to whether the appointee is holding a temporary or provisional appointment to the same position, or how long such appointment has lasted. These appointments are mere stop-gaps, exceptions of necessity to the general rules with respect to the filling of such positions, and are in no sense probationary. While such appointments may on occasion be succeeded by a permanent appointment, this may only be by virtue of examination and eligibility under the civil service laws, and not by reason of any ripening of the temporary or provisional appointment into a permanent appointment.”

The orders should be reversed with costs in all courts, and the proceeding dismissed.

Lehman, Ch. J., Loughran, Finch, Rippey, Sears and Conway, JJ., concur.

Orders reversed, etc


author: Rippey, J. Finch, J.

text:
    The People of the State of New York, Respondent, v. Joseph Kress, Appellant.

      Argued October 9, 1940;
    decided December 31, 1940.

      I. Maurice Wormser and Vincent R. Impellitteri for appellant.

      Joseph F. Hanley, Acting District Attorney (Henry J. Walsh of counsel), for respondent.
   Rippey, J.

About twelve-thirty o’clock on the afternoon of August 21, 1934, the operator and men in charge of one of the armored trucks of the United States Trucking Company were held up in front of the office of the Rubel Ice Company at Bay Nineteenth street and Cropsey avenue in the borough of Brooklyn, city of NewJYork, and robbed of $427,950 in cash contained in ten separate bags which they were transporting for various banks.

In the fall of 1938, John J. (Archie) Stewart, who also had various aliases, told the authorities that nine men besides himself committed the crime. At that time, three of those named by him (Francis Oley, John Manning and Benny McMahon) were dead. Stewart was not indicted. An indictment was filed on November 3, 1938, against John Oley, Percy Geary, Stewart Wallace, Joseph Kress, Thomas Quinn and John Hughes for the commission of the crimes of robbery in the first degree, grand larceny in the first degree and assault in the first degree. Since the whereabouts of Hughes was unknown and Oley and Geary were in the Federal prison at Alcatraz Island, upon a severance the trial proceeded in June, 1939, against Wallace, Quinn and Kress. Each was convicted of robbery. The larceny and assault counts were dismissed at the trial. The judgment of conviction of Kress was aflirmed by the Appellate Division by a vote of three to two and, upon permission of one of the dissenting justices, Kress appeals to this court.

None of the occupants of the truck was able to identify any of those who participated in the robbery except Stewart, upon whose testimony the People relied and without which Kress could not have been convicted. Stewart, by bis own words, conceived the crime and planned its execution, directed and supervised the preparation of each of the actors for the part he should take in its execution, supervised and directed the actors in its execution and in their getaway, fixed the shares of the participants in and supervised the distribution of the loot and retained the major part for himself. Stewart testified that the crime had been conceived by him early in June, 1934, that, from time to time as the plan for consummating the robbery was worked out, he selected new members for the gang and had nine meetings at which details of the plans were rehearsed, at none of which Kress was present. On the ninth meeting, as part of his plan, it developed that it was necessary to have two automobiles and McMahon and Manning said they knew a man by the name of Kress who would supply them. At a later meeting in July, Kress was present with various other members of the mob and Manning informed Kress that a couple of automobiles were necessary and Kress said that he would procure them and store them in his "uncle’s garage on Atlantic avenue. Stewart testified that Kress was present at subsequent meetings and also performed his part, as planned, at the time of the robbery, which was to provide the automobiles to be used in the getaway. At one of those meetings Manning said that he was supplied with enough pistols for all and McMahon observed that he had several machine guns and suggested that a boat was required and that he knew a man by the name of Hughes who could supply it. That suggestion is alleged by Stewart to have brought Hughes into the picture at their next meeting. It was explained that they wished to leave from a dock as near the Rubel plant as possible and Hughes produced a lobster dory with which the party went over the route proposed to be taken after the robbery had been consummated. At a subsequent meeting held by Stewart on August 8th with all of the members of the outfit except Quinn, Hughes said that he would like to include his partner Quinn in the enterprise. It developed that Quinn had a speedboat and Quinn was taken in. It was then decided that both boats should be used in the getaway. Stewart testified that the first time he saw the speedboat was at Ninety-sixth street in the North river when Manning, Hughes and a mechanic (who later developed to be one Charles Schlayer) were present and that Kress, Hughes, the mechanic and he went on a trial trip up and down the Hudson river as far as One Hundred and Fifty-fifth or One Hundred and Sixtieth street and finally pulled over by the Ford plant at Edge-water in New Jersey. In the automobiles that Kress furnished, he said, the gang left the Rubel plant after the robbery with their loot and went to the point in the river where the speedboat and lobster dory were docked in which they all proceeded in their flight from the scene of the robbery. McMahon accidentally shot himself while in one of the boats, was taken to a hideout by Stewart and others where a doctor was procured for him and where he subsequently died. Stewart claimed that out of the share of the loot which he received Kress agreed to contribute part of the expenses of the medical care and burial of McMahon. Kress, he said, gave him $150 of this amount and promised to contribute the balance later. On subsequent occasions he_demanded the balance of the money but did not get it. He testified that he saw Kress in 1937 in Sing Sing Prison and had a talk with him. He was then in need of money with which to print papers on his appeal from his conviction- for bank robbery for which he was incarcerated and for counsel fees and said to Kress, I need the money you owe me,” and Kress said, “ All right, I will make arrangements for you to receive it. * * * Have you got somebody you can send down to the brother-in-law of mine? ” Stewart continued: “ I said ‘ Yes.’ ” Whereupon Kress gave Stewart the name of Harold Harkavy and his address at 141 Broadway. Some days afterward, Stewart testified, he saw Kress again and told him that his (Stewart’s) brother had gone to Harkavy for the money but did not receive any, so he asked Kress, What is the matter? ” and Kress replied, Well, there is something holding it up,” but that he would have a word with his brother-in-law again. In the meantime Stewart had talked with his own brother about the matter. He was removed to Dannemora two days after the conversation with Kress and had no further conversations with him. From this brief outline of Stewart’s testimony enough has been said for the purpose of considering the principal questions involved upon this appeal.

It is, at this point, important to advert to the character of the man upon whose testimony the conviction of Kress depended and to the probable motive or motives for testifying. Stewart admitted that he was convicted of burglary in 1916 while he was a juvenile and received a suspended sentence, again in 1919 for robbery with a gun and sentenced to imprisonment for seven and one-half to fourteen years, and in January, 1937, for robbery of the Pine Bush National Bank, Pine Bush, New York, for which he was, at the time of the trial, serving a sentence in Dannemora State Prison of from thirty to sixty years and that variously, between times of incarceration, he ran speak-easies, book games and crap games and Was a gambler, bootlegger and beer runner and a gunman protector for crap games. He was also a perjurer as occasion might demand. At the time that Stewart agreed to furnish the information as to transactions concerning which he testified at the trial, he also had a brother who was a probationary police officer awaiting permanent employment with the New York city police force. He was allegedly trying to curry favor with the then Commissioner of Corrections and he had a grudge to settle with Kress who had refused to be his victim in a shakedown. With those motivating interests he required payment in advance of the consideration fixed by himself for his testimony, i. e., a promise of immunity from prosecution. He doubtless visioned the effect such a conviction would have on any application for a probation on the sentence that hie was then serving and upon favor with the authorities which his aid might give to the end that his freedom on probation might be hastened. Additionally, testifying would settle his score with Kress. It was then, it is claimed, that he started his build-up of corroboration to make certain the conviction of Kress. There were contradictions and improbabilities in his testimony and it did not always square with other established facts. Much of the foregoing was for the consideration of the jury on the question of Stewart’s credibility and the reliability of his story and not for this court to weigh and evaluate. We refer to it as indicating the character of the accomplice and some of the reasons why the truth of his statement was open to the gravest suspicion and why it became .necessary, to warrant conviction of Kress, to have corroborative evidence of a definite, legal character, independent of the testimony of Stewart, tending to connect Kress with the commission of the crime (People v. Reddy, 261 N. Y. 479; People v. Crum, 272 N. Y. 348, 353).

Stewart was by his own testimony an accomplice of Kress and the court so charged as matter of law. The courts have always looked with suspicion upon the testimony of an accomplice and have asserted that it must be accepted only with caution, especially when the accomplice has bought his freedom from prosecution by a promise to give testimony against defendant or is, himself, a disreputable and criminal character (People v. Katz, 209 N. Y. 311, 336; People v. Becker, 215 N. Y. 126, 140; People v. Cohen, 223 N. Y. 406, 412; People v. Crum, supra; 7 Wigmore on Evidence [3d ed.], § 2058). Accordingly, the Legislature has provided that a conviction cannot be had upon the testimony of an accomplice, unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the crime ” (Code Crim. Proc. § 399).

This and other courts have, on many occasions, been required to consider the kind of corroboration in the particular case under consideration that is necessary to satisfy the law. We need not pause to review all the decisions separately. The required corroborative testimony is insufficient if it tends only to establish the credibility of the accomplice. The statute does not say that there may be a conviction on the testimony of the accomplice alone if shown to be credible. The corroborative evidence to have any value must be evidence from an independent source of some material fact tending to show that defendant was implicated in the crime (People v. Hooghkerk, 96 N. Y. 149, 162). The independent evidence must be material evidence other than that of the accomplice and must fairly and reasonably tend to connect the defendant with the commission of the crime (People v. Everhardt, 104 N. Y. 591, 594; People v. Taleisnik, 225 N. Y. 489, 493; People v. Reddy, supra; People v. Ogle, 104 N. Y. 511, 515; People v. O’Farrell, 175 N. Y. 323). It may not depend for its weight and probative value upon the testimony of the accomplice. It need not, alone and by itself, establish that defendant committed the crime. But where the corroborative evidence standing alone has no real tendency to connect defendant with the commission of the crime, it is insufficient (People v. Reddy, supra, p. 586; People v. Crum, supra; People v. O’Farrell, supra). Evidence of mere association of defendant with perpetrators of the crime at a time antecedent to its commission is insufficient (People v. Cohen, supra; 22 C. J. S., Criminal Law, pp. 1397-1399). Additionally, where the corroborative evidence does not show actual participation of defendant in the crime itself, the fact must also be established, independently of the testimony of the accomplice, that any such association was of such a character and of such intimate connection with the criminal enterprise that it may be inferred that it tends to connect the defendant with the commission of the crime. Its connection with defendant’s own statements and denials should be considered. * * * It may vary in its nature according to the circumstances of the particular case ” (People v. Dixon, 231 N. Y. 111, 116). With those applicable statements of the law in mind, the first question for us to determine is whether the People furnished such corroboration as the law requires.

To meet the requirements of the law and secure the conviction of Kress, the People relied upon two matters only for corroboration, namely, the matter relating to the $500 which Stewart alleged Kress agreed to repay him, and secondly, the matter of the trip which Stewart, Hughes and Kress took with the mechanic in the speedboat. Kress took the witness stand in bis own behalf and denied any participation in the events leading up to the robbery, in the robbery itself or in the getaway or division of the loot or acquaintance with any of the participants except Manning. He said that he owed Stewart no money whatsoever and had never met him prior to the occasion when he saw him in Sing Sing Prison and that he had never seen the mechanic who was alleged to have repaired the speedboat until he saw him at the trial. He denied circumstantially and in detail all testimony of Stewart by which the latter sought to connect him with the crime. Kress admitted that he talked with Stewart in Sing Sing Prison in 1937 when he (Kress) was serving time on a conviction for having possession of a gun. His story of the meeting differed radically from Stewart’s version. Kress testified that he was talking with some of the fellows and said that he had a brother-in-law who was a lawyer who was looking after his own case and would see whether it was worth while to take an appeal, whereupon Stewart, who overheard the remark, mentioned his appeal in connection with the Pine Bush Bank robbery and inquired of him as to whether he (Kress) had a brother-in-law who was a lawyer, and when informed that he had, Stewart secured his name and address. Kress testified that Stewart then told him that Manning had said that he (Kress) supplied the cars for the Hubei job and that he had given Kress $3,500 but that he found out later that Kress had nothing to do with it; that he (Kress) then told Stewart that he had nothing to do with supplying cars for the Rubel job or for any other job. He further testified that Stewart then said, “ Listen, Kress, I have a very expensive lawyer handling my appeal, and I need dough. I don’t care where or how I get it. I got my brother hustling all over New York, but I don’t care how or where he gets it either. I want you to kick back that dough or else it will be just too bad for you.” Thereupon Kress said, “ Listen, Stewart, I never received a dime, not even a penny. I never received a nickel from anybody for that, and furthermore, I won’t give you a cent.” Thereupon Stewart said, “ We’ll see about that. * * * You are liable to get hurt.” A couple of days afterwards Stewart was transferred to Dannemora Prison. Kress testified that at no time did he authorize Stewart to send his brother Robert to the office of Harkavy or authorize his parents or Harkavy to turn over any money to Stewart’s brother or father; that his father and mother came up to see him at Sing Sing and they told him about certain threats that had been made by Robert Stewart, whereupon he told them the story and definitely told them that they must not give Stewart anything.

Harkavy was called for the People and testified that in the early part of June, 1937, he received a telephone call when the voice at the other end said: “This is Robert Stewart calling, and I would like to see you on a matter concerning your brother-in-law, Joe Kress,” whereupon an appointment was made for the following day and Stewart came to his office and told him that he was a brother of Archie Stewart who had been convicted for holding up the Pine Bush Bank and had been sentenced to serve a term of from thirty to sixty years and that an appeal was being taken from that conviction, that the family had retained an attorney to handle it who required a large sum of money and that he expected a contribution from the family of Joe Kress; that he told Stewart that he would not give him a cent and that Joe’s parents had no money belonging to Joe and that there was no reason why they should contribute a cent for the appeal. He said that Stewart again later called him on the telephone and asked him whether he had any money for him and Harkavy told him that he had not and also told him, Joe’s parents have spoken to Joe and Joe said that he sees no reason at all why he should give Archie a cent,” whereupon he told Stewart that he would not give him anything and Stewart asked to come to the office immediately to see him. When Robert Stewart came to the office he said, I cannot ■understand your attitude. I don’t see why Joe’s parents are not kicking in, * * * you know it would be rather unhealthy for Joe if a contribution was not made.” He said, “You know Archie could make it pretty hot for Joe, make things very uncomfortable for Joe.” Harkavy finally told him that he would do nothing about it but he would tell Joe’s parents about it. He said that Stewart again called him on the telephone and inquired whether he had the money and when informed that he did not have it he said he would come back in a few days and see whether he had it then. Other conversations occurred, according to the witness’ testimony, when Stewart asked him for money and finally he said to Stewart: “ Your threat worked and has scared Joe’s mother to such an extent that he has given me — Joe’s father has given me some money for you,” whereupon Robert Stewart sent his father around to get it. That money he paid to Stewart’s father, John J. Stewart. Harkavy testified that he was not authorized to give any money to Stewart’s father and had told Stewart that Kress had told his parents not to give any money. The father, John J. Stewart, testified that he went to Harkavy’s law office at the request of his son Robert and received an envelope with $100 in it, and that he had never met Kress. Robert Stewart testified that he went down to Harkavy’s office on several occasions, demanded $350 and after $100 had been paid demanded $250 more but personally received no money from Harkavy although he was engaged in collecting and had collected upwards of $900 for Archie’s appeal expenses.

The fact of payment of $100 was not the vital point. Without establishing the reason for the payment and authority or knowledge and consent of Kress to the payment such testimony was not corroborative evidence as required by the statute. The testimony concerning the reason for the payment which would furnish evidence tending to connect the defendant with the commission of the crime is that of the accomplice only. Thus the attempt to connect the defendant with the commission of the crime by the testimony of the $100 payment rests upon the testimony of the accomplice himself and is insufficient. There was no evidence whatever to the effect that Kress had authorized the payment of the $100 to Robert Stewart or to Stewart’s parents or to any one else nor any evidence from which any such inference could be drawn unless it was from the evidence of the accomplice. Such a payment could corroborate the testimony of the accomplice as to the existence of the debt only if the payment were made and received directly or indirectly from the person indebted. The unauthorized acts of third parties may not be used to connect the defendant with the commission of the crime (People v. Buzzi, 238 N. Y. 390; People v. Pignataro, 263 N. Y. 229). The evidence was objected to and admitted only over defendant’s exception and the court refused to withhold it from the jury. Thus they were allowed to speculate as to the authorization by the defendant of the payment of moneys owing by him to reimburse Stewart for moneys advanced in connection with McMahon’s death and burial and to find in the evidence of Harkavy the corroboration required by the statute. Not only that, but counsel for Kress requested the court to charge that unless the People proved beyond a reasonable doubt that Kress knew of or authorized the payment the evidence could not be considered as corroboration of the testimony of Stewart. This the court refused to charge and exception was taken. Under no authority or rule of law could the testimony be considered by the jury as corroboration. It fails to meet the test required by the statute and the authorities to permit its consideration as a test of the credibility of the accomplice witness. We cannot presume that the jury failed to find the corroboration, which the court instructed them was necessary for a conviction of Kress, in the testimony concerning the payment of the $100 (People v. Lazar, 271 N. Y. 27; People v. Taleisnik, supra). The fact must not be overlooked that Kress was at no time and by no witness identified as a participant in the robbery except by Stewart.

Schlayer, the mechanic who was alleged by the accomplice to have repaired the motorboat, was called on behalf of the People and testified that he had known Hughes and Quinn for some time and had repaired the motorboat in question for them; that in the latter part of July, 1934, he was asked by Quinn or Hughes again to make some repairs to the boat and that in the early part of August he made a second test of the boat in the water with Hughes, John Oley, Archie Stewart and a man, whom he identified in the court room as the defendant Kress, with him in the boat. He did not know Kress personally or by name prior to that occasion and that was the only time that he saw him prior to the trial. His identification of the defendant was at least dubious. Schlayer knew nothing about the plans of Stewart and the rest of them for the perpetration of the crime and had nothing to do with the perfection of those plans and, at most, his testimony amounts to just this and nothing more, i. e., that he saw Kress in the presence of Stewart, Hughes and Oley some ten days prior to the robbery. It does not necessarily follow that the presence of Kress in the boat indicated that he took part in the robbery. There is nothing in Schlayer’s testimony, directly or by inference, which tends to connect Kress with the commission of the crime. Since none of the victims of the robbery identified Kress, the testimony of Schlayer, who also does not identify Kress with the robbery, so far as it goes is merely an agreement with the story of the accomplice and is worthless under the statute as a bolster to the credibility of Stewart’s testimony or independently corroborative of his testimony as tending to connect the defendant with the commission of the crime. If the testimony had established that Kress was at the scene of the robbery in association with Stewart and the other participants at or immediately before the time of the robbery, it might, perhaps, be urged that his denial of being there imported some evil motive (People v. Mayhew, 150 N. Y. 346, 353; People v. Dixon, supra, p. 117; People v. Deitsch, 237 N. Y. 300, 303; People v. Crum, supra, p. 356), but nothing of that kind appears in this case. From the testimony of Schlayer evil intent cannot be inferred. His testimony should not have been submitted to the jury as sufficient to supply the required corroboration of the testimony of the accomplice and defendant has been protected against its erroneous submission by suitable objections, requests and exceptions.

Other errors were committed on the trial which were material and could not be overlooked but need not be referred to in detail in view of what has been said above. Reference should be made, however, to two incidents occurring at the trial. Immediately prior to the close of the evidence the defendant was recalled to the stand for further cross-examination. During the People’s main case it was brought out that the two cars used in the robbery were stolen cars. The defendant had admitted that he was convicted of petty larceny in 1932. When the defendant was recalled, the district attorney was allowed over proper objection to bring out that the larceny admitted involved an automobile, obviously for the purpose of creating in the minds of the jury the impression that the defendant was endowed with a propensity either for stealing automobiles or for committing crimes involving automobiles. Also the district attorney was allowed to question the defendant as to whether he had ever suffered from a venereal disease without any pretense being made to show its materiality. These incidents prejudiced the defendant before the jury (People v. Malkin, 250 N. Y. 185; People v. Zackowitz, 254 N. Y. 192; People v. Richardson, 222 N. Y. 103; People v. Russell, 266 N. Y. 147) and it is not sufficient to say, as is urged here, that these matters were “ more or less innocuous.” If at the trial it was not thought that these questions might help to convict the defendant, they would never have been asked.

The judgments should be reversed and a new trial ordered.

Finch, J.

(dissenting). It is submitted that the verdict of the jury convicting defendant appellant of the crime of robbery in the first degree should be affirmed. The facts detailing the planning and execution of the robbery down to the minutest detail, including the part which each participant took in effecting the robbery and the escape, have been set forth in the testimony of an accomplice. Up to within a comparatively recent time, and prior to the enactment of section 399 of the Code of Criminal Procedure, a jury, if satisfied of the truth of the statement of an accomplice, could convict on his testimony alone. (People v. Costello, 1 Den. 83; People v. Dyle, 21 N. Y. 578; Dunn v. People, 29 N. Y. 523 ;Linsday v. People, 63 N. Y. 143, 154.) It was at that time that the courts were accustomed to charge the jury to scrutinize the testimony of an accomplice with caution. Thereafter, by statute, the State of New York required that there be some independent evidence to connect the defendant with the commission of the crime. (Code Crim. Proc. § 399.) We have held that the corroborative evidence need not show the commission of the crime; it need not even show that the defendant was connected with the commission of the crime. (People v. Mayhew, 150 N. Y. 346, 353; People v. Swersky, 216 N. Y. 471, 478, 480; People v. Cohen, 223 N. Y. 406, 426; People v. Dixon, 231 N. Y. 111, 116; People v. Reddy, 261 N. Y. 479, 484.) Such evidence is sufficient if it tends to connect the defendant with the commission of the crime. Corroboration is not restricted to any particular point. It may vary in its nature according to the evidence in the particular case. Matters in themselves of seeming indifference or trifling evidence may have a tendency to furnish the necessary connection between the defendant and the crime. (People v..Becker, 215 N. Y. 126, 139, 140; People v. Dixon, 231 N. Y. 111; People v. Reddy, 261 N. Y. 479, 484.)

The sole question of law upon which it is proposed to reverse and dismiss the indictment is that the trial court should have charged the jury that as a matter of law the testimony concerning the following incidents did not constitute any evidence which the jury might find tended to connect the defendant with the commission of the crime, i The first incident relates to the presence of this defendant with others of the conspirators on a trial trip of the speedboat utilized in the getaway with the bags of money after the robbery. The presence of this defendant, in company with others of the conspirators, on the trial trip of the speedboat to test its availability, was detailed by an independent witness, namely, the mechanic who had reconditioned the speedboat. The defendant denied his presence on the speedboat. His presence on the boat, therefore, became a question of fact for the jury, and although the Appellate Division divided as to the availability of the evidence detailing the second incident, there was unanimous agreement that the evidence concerning the presence on the speedboat of this defendant with others of the conspirators, to test the availability of the boat, “ assumed a sinister significance and was sufficient corroboratory evidence. (People v. Dietsch, 237 N. Y. 300; People v. Dixon, 231 id. 111, 117; People v. Crumb, 272 id. 348, 356; People v. Mayhew, 150 id. 346, 353.) ” (259 App. Div. 738.) Surely after the evidence set forth in the majority opinion of the details of this crime, a court could not say as a matter of law that the presence of this defendant with others of the conspirators passing on the availability of the speedboat used in the getaway, was not some independent evidence which tended to connect this defendant with the commission of the crime.

We come then to the second incident, which concerns the payment of $100 by the father of this defendant to his son-in-law, to be turned over to Robert Stewart, the brother of Archie Stewart. In connection with this incident it is conceded that, pursuant to the threats to the defendant by Archie Stewart, to induce the payment of some money, the father and mother of defendant visited him while he was in prison, and talked with him concerning the advisability of making some payment on account of this debt which Archie Stewart claimed of the defendant. The defendant concedes the visit of the father and mother, the talk concerning the advisability of payment, and thereafter the payment by the father to his son-in-law, who paid the money to the father of the accomplice. After these conceded facts the defendant testified that he had told the father not to make the payment. Since the defendant was an interested witness, the jury were at liberty to accept that part of his testimony wherein he admits all the above conceded facts, and to disbelieve his self-serving declarations that he advised his father against making the payment. (People v. Johnson, 185 N. Y. 219, 225; People v. Demasco, 240 N. Y. 170.) As to this incident also it is submitted that the trial court could not say as a matter of law that there was not some evidence here, however slight, which, if believed by the jury, tended to connect the defendant with the commission of the crime.

It is submitted, therefore, that evidence concerning both the above incidents was property admitted, and that there was no error on either of these grounds.

Since the lack of sufficient corroborative evidence is urged as the sole basis for setting aside the verdict of the jury and ordering a new trial, it follows that the judgment appealed from should be affirmed.

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

Judgments reversed, etc.