author: CoNway, J. Lehman, Ch. J.

text:
    The People of the State of New York, Respondent, v. Leroy R. Luscomb, Appellant.
    Argued March 1, 1944;
    decided April 20, 1944.

      Frederick Wm. Youmans for appellant.
    I. The evidence does not sustain a felony murder. (People v. Mummiani, 258 N. Y. 396; Code Crim. Pro. § 165; People v. Alex, 265 N. Y. 192.) II. The verdict was so expressed that the trial court could not carry out the sentence contemplated by the jury. (People v. Leonti, 262 N. Y. 256; Band v. Bindseil, 137 N. Y. S. 890; Dalrymple v. Williams et al., 63 N. Y. 364; People v. Arata, 254 N. Y. 565; People v. SMlitano, 215 Y. 715; v. Schoepke, 123 Wis. 19; People v. Sprague, 217 N. Y. 373; Hodg-kins v. Mead, 119 Y. 166.)

      Arnold M. Griffin, Special District Attorney (Layman G. Snyder of counsel), for respondent.
    I. The evidence established the defendant guilty beyond a reasonable doubt. The defendant willfully and wrongfully assaulted the witness Eeuben Eck, with the use of a loaded rifle which was a weapon likely to produce grievous bodily harm. This constituted the crime of assault in the second degree, a felony. (People v. Nichols, 230 N. Y. 221; People v. Smith, 232 N. Y. 239; People v. Patini, 208 N. Y. 176; People v. Wagner, 245 N. Y. 143.) II. The verdict of the jury was proper and valid. (Johnson v. State, 33 Ariz. 354; Ramp v. State, 130 Pla. 801; Grinnell v. Phillips, 1 Mass. 530; Payne v. Burke, 236 App. Div. 527; People v. Birnbaum, 114 App. Div. 480; People v. Gallagher, 75 App. Div. 39, 174 N. Y. 505; People v. Sprague, 217 N. Y. 373; Dalrymple v. Williams et al., 63 N. Y. 361.)
   CoNway, J.

The defendant was indicted for murder in the first degree. There were three counts. The first and second charged the commission of murder in the first degree under Penal Law, section 1044, subdivision 1. The third count charged the commission of the crime under section 1044, subdivision 2. That count read as follows: The said defendant, Leroy Eiley Luscomb, on or about the 21st day of April, 1943, at the home of Eeuben Eck, at Corbett, Town of Colchester, Delaware County, New York, willfully and feloniously shot and killed Ella May Luscomb with a rifle, the said defendant, Leroy Eiley Lus-comb, then and there being engaged in the commission of the crime of Assault in the second degree upon one Eeuben Eck, one Ida Eck and the said Ella May Luscomb, by willfully and wrongfully assaulting said Reuben Eck, Ida Eck and Ella May Luscomb by the use of a loaded firearm or rifle, said loaded firearm or rifle being a weapon likely to produce grievous bodily harm, against the form of the statute in such case made and provided and against the peace of the People of the State of New York and their dignity.” After a full and correct charge the jury found the defendant guilty under that count without recommending life imprisonment. Under the first and second counts the trial court charged that the defendant might be convicted of murder in the first or second degrees or of manslaughter in its first or second degree. (See People v. Moran, 246 N. Y. 100, 105.)

In order to discuss the law it is necessary to view it against a background of fact. As to most of the facts there is no dispute tmtil we come to the occurrences immediately preceding the murder. The defendant and his wife had been married thirteen years and lived in Downsville, N. Y. They had had four children, one of whom, Janet, had died. The living children were aged respectively twelve, nine and six. Both husband and wife worked and neglected their children. The defendant had been intimate with one Onufer aged twenty-one, who apparently was the mother of a child by him. On April 17, 1943, while the defendant and the Onufer girl were at a dance hall and hotel at Long Flats, N. Y., the deceased wife entered and approached them. Words passed between the two women and the deceased left the hotel. Later the defendant and the Onufer girl left.

When the defendant arrived home on Sunday, April 18th, he found that his wife had departed taking the youngest child with her. She had returned to the home of her father one Reuben Eck, at Corbett in the town of Colchester.

To Eck’s home the defendant sent a letter by his oldest son on Monday, asking the deceased to return saying that he would be ‘ ‘ true to you from this day on. ’ ’ The deceased had previously left the defendant on two prior occasions because of his excessive indulgence in liquor. After the delivery of the letter the deceased did not return. On Tuesday morning defendant left a second letter, on tlie table of his home asking the deceased to return to him. Deceased, however, failed to return.

On Wednesday, April 21st, the defendant did not work but went fishing with his oldest son. They returned home about two o’clock in the afternoon and the defendant went to the village of Downsville, where he had some beer. At about six o ’clock he came home and had his evening meal with his children. He obtained Ms Winchester rifle, loaded it and drove with the children to a restaurant where he had a bottle of beer and the cMldren had soft drinks. He then drove to Corbett to the home of Reuben Eck. He entered through the woodshed door. The deceased was seated in the kitchen.

Ida Eck, the mother of deceased, said that at about a quarter after seven in the evening one of her grandsons came in and asked her daughter to go outside to see the defendant; that when her daughter refused, she heard her grandson say, “ Ma, you better go because he’s got a gun and he’s going to shoot you that then she heard the defendant enter the kitchen and say to her daughter in a loud voice “ Ella, I want you to get your clothes and things and Dixie [the six year old child] and go home. Do you hear? that she then heard a scuffle in the kitchen but could not hear any conversation; that when her husband went into the kitchen she followed him as far as the doorway and stood there; that the defendant had a rifle which he held with both hands; that defendant said to her husband, “ None of your funny business here. Don’t come a step further”; that the rifle was pointed at her husband; that he swung the gun around “ onto me ” and said, “ or you, either * * * damn you, I think you are a lot to fault of this ”; that he pointed the gun at her for a minute and when he swung it around she left the room; that she then heard the defendant say “ I’ll clean up the whole damn bunch of you ”; that she then went upstairs and when she reached the top of the stairs she heard a shot.

Reuben Eck testified that when he entered the kitchen he saw the defendant “ with his wife with her back up against the kitchen table, and he had hold of her clotMng like that and was ashaking her ”; that when the defendant saw him “he let go of her and grabbed up the rifle, and he said to me, ‘ None of your damn funny business, # * * don’t come a step farther ’ that the defendant, holding the gnn in both hands, pointed the rifle right at him; that at that time Mrs. Eck stepped in the door and defendant turned the rifle in her direction and said, G- — d— yon, I think yon are a whole lot to fault of this ”; that defendant then laid the gnn back on the table and took off his jacket and laid it on the table, and said, “ I’ll clean np the whole damn bunch of yon ’ ’; that he told the defendant that no one was at fault and defendant replied, “ Enbe, I don’t think yon are to fault. I have always liked yon ’ ’ and that they shook hands; that then the defendant picked np the rifle and swung around to the deceased and said, “ Now, Ella, Gr— d — yon, yon are going home with me, or I’m going to kill yon right here ”; that decedent refused to go home with defendant and after a couple of seconds the gnn was discharged; that at that time deceased was about three feet from the defendant and he (Eck) was about four feet from him; that deceased did not turn the defendant around; and that the witness never attempted to seize the rifle; that during the entire time he remained in one that being the spot he reached when defendant told him not to come one step nearer. Eck was asked ‘ Do yon wish this jury to understand that yon, the father of this girl, stood and took all that.” His reply was, “ What could I do? ”

It was the defense of defendant that in the kitchen he asked his wife to go home with him and the children and that she refused; that he asked her more than once why she would not return but that the only answer he obtained was because .1 won’t ”; that he then said to her “You will go home ”; that at about that time her father and mother came from the sitting room and walked up to a point opposite the reservoir on the stove and stopped; that he told them he wanted his wife to go home with him and for them “ to keep their nose out of my business ’ ’; that Mrs. Eck turned and went back into the living room; that Mr. Eck mumbled something and that the defendant turned back to the table in the room, took his coat off and, laying the rifle upon the table, stepped back in front of Eck; that the defendant took his jacket off “because Eck was mad”. Continuing the defendant said: “ So I stood there facing him. He stood by the reservoir and he did not say another word so I picked the gun up and turned around and stepped up in front of him, about two feet from him and I told him that I did not think that he had anything to do with my wife not coming home with me but that her mother did, I thought. ' At that time my wife come np behind me and grabbed me and swung me around and at that time he grabbed me by the arm and my gun went off and shot my wife and she fell to the floor toward the kitchen cabinet and I told him to get a doctor quick.”

The autopsy showed that the bullet which caused death “ entered the front of the neck ” and passed through a major blood vessel, the windpipe, the spinal column, spinal cord, and “ came out at the back of the neck.” The coroner testified that the muzzle of the rifle had been at least two or three feet from the body and that there were very slight marks probably powder burns — not very marked ”.

At law murder was committed where one unlawfully and feloniously killed another human being with malice prepense or aforethought either express or implied. (I Wharton’s Criminal Law, § 419.) Malice prepense was implied at common law, however, in cases where the homicide was not intended but occurred during the commission of a collateral felony.

Our statute now defines murder in the first degree in Penal Law, section 1044, subdvision 2, as the killing of a human being when not excusable or justifiable, committed without a design to effect death, by a person engaged in the commission of, or in an attempt to commit a felony, either upon or affecting the person killed or otherwise. Both at common law and under the New York statute there is a transference of intent from the felony to the homicide by implication and the homicide becomes one committed with malice prepense. We have used the word “ collateral ” in connection with the commission of murder in the first degree because in certain instances the original felony is considered merged with the homicide and in such instances section 1044, subdivision 2, is not applicable. Thus an assault is merged in the homicide where the one assaulted is the one who dies. If the one assaulted is not killed but during the assault another is, that may constitute murder in the first degree. (People v. Giblin, 115 N. Y. 196; People v. Patini, 208 N. Y. 176; People v. Wagner, 245 N. Y. 143.) That necessitates a finding that the one killed suffered his wound while the assault upon the other was still continuing. In this instance, therefore, we must consider these questions: — First, was there an assault upon someone other than the deceased? Was that assault continuing so that we may say that the fear and threat involved therein continued to the time when Mrs. Luscomb was shot. Was the assault upon Eck an independent felony?

The indictment charged the commission of the murder while the defendant was engaged in the commission of the crime of assault in the second degree upon Eck. The trial court properly charged that the assault upon Mrs. Eck had been terminated and that it could.not be considered in connection with the murder. As to Eck, the trial court charged the jury that, in order for defendant to be held to be engaged in assault in the second degree, it must find that the rifle was pointed at Eck in a threatening manner, with intent to injure him if he failed to comply with the defendant’s demands and that Eck must have been put in fear of bodily harm. By Penal Law, section 242, subdivisión 4, it is provided that one who willfully and wrongfully assaults another by the use of a weapon or other instrument or thing likely to produce grievous bodily harm is guilty of assault in the second degree, a felony.

It seems to us that the trial court made a clear and correct charge on the third count of the' indictment under our previous decisions in People v. Giblin (115 N. Y. 196 [1889]); People v. Patini (208 N. Y. 176 [1913]); and People v. Wagner (245 N. Y. 143 [1927]). We shall quote briefly from it: “ The second theory upon which the People present this case to you is based on what is known as felony murder. This is also murder in the first degree. It is defined as the killing of a human being without a design to effect death by a person engaged in the commission of or in an attempt to commit a felony either upon or affecting the person killed or otherwise. Under this count no premeditation or deliberation or any intent, or design to effect death is necessary. That is, the commission of a felony, the commission of an independent crime during the progress of which a homicide occurs takes the place of and is a substitute for the premeditation and deliberation required by the so-called common-law type of murder. The essential elements are a felony and a killing committed during the period between its inception and its consummation. The underlying felony depended upon here is second degree assault which, so far as this case is defined, is defined as the wilful and wrongful assault upon another by the use of a weapon'likely to produce grievous harm. To constitute assault, it is not necessary that the person assaulted he injured or even touched. It is sufficient if an attempt is made coupled with a present ability to commit a violent injury to another. So far as the present case is concerned, the defendant is guilty of assault in the second degree if you find that he pointed a firearm at Reuben Eck in a threatening manner and with an intent to injure him if he failed to comply with his demands and if Reuben Eck was, by this defendant’s act, put in fear of bodily harm.

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1 ‘ On this felony murder and speaking of the independent felony, the basic felony, that of assault, you must find that it was ■still in the process of commission at the time of the shooting. That is, if Reuben Eck and the defendant had settled their differences, if they had made up, if the defendant had abandoned any attempt to assault Eck before the commission of this shooting, before the shooting occurred, then you must find that the felony had terminated and consequently it may not be the basis for a felony murder. If you find from the evidence that Luscomb did commit an assault upon Mr. Eck and if you further find that this slaying of Ella May Luscomb took place while the assault was in the process of commission, you may then find the defendant guilty of murder in the first degree regardless of whether or not the defendant had any intention or design to kill his wife and even though you might find such killing to have been accidental.” (Emphasis supplied.)

Again the court charged “ under this count [felony] no premeditation or deliberation or anj intent or design to effect death is necessary. That is, the commission of a felony, the commission of an independent crime during the progress of which a homicide occurs takes the place of and is a substitute for the premeditation and deliberation required by the so-called common-law type of murder. The essential elements are a felony and the killing committed during the period between its inception and its consummation.”

If the defendant entered the kitchen of Eck and held him at bay with a rifle and while Eck was thus restrained by the threat that he would be shot if he took a step forward and if while he was in the grip of fear produced by that threat, the defendant purposely or accidentally shot and killed his wife, that was murder while engaged in the commission of a felony. Here the jury could find that those were the facts. Eck was in his own home and a man’s home is still his castle. His daughter had found retreat there for the third time from her wastrel husband. Eck lived there with his wife. When the defendant entered with his rifle there was no place to which Eck as the protector of his wife and daughter could retreat or in which he could find refuge. The defendant entered through the woodshed door and when Eck, hearing him, came from the sitting room and found the defendant shaking his daughter, he started forward. He paused some four feet from the defendant when the latter pointed the rifle at him and told him not to take another step and in that position he remained until his daughter was killed. Mrs. Eck came forward and was driven from the room at rifle point. Because Eck appeared angry the defendant took off his jacket, after laying the rifle upon the table, so as to “ clean up ” all present. There can be no question but that the assault upon Eck had commenced. The trial court properly charged that when Mrs. Eck left the room the assault upon her had been terminated and, as to the deceased, there had been a merger in the homicide of the assault upon her. After taking off his jacket and before taking up the rifle again Eck says that the defendant shook hands with him and said that he knew Eck was not to blame for his troubles. (The defendant denied that he shook hands with Eck.) The defendant then picked up the rifle again, but not his jacket, which he had removed so as to be freer in his movements, and swinging around upon the deceased said, “ Now, Ella, G — d— you, you are going home with me, or I’m going to kill you right here.” When she refused, the defendant killed her. Assuming that the jury believed Eck, to say that the menace of the defendant, who had just removed his jacket to be freer to commit assault, was ended because he paused to shake hands with Eck before again picking up his rifle and telling the deceased that he was going to kill her right there in her father’s home if she did not go with him, seems to us to disregard all that went before and all that immediately followed after the shaking of hands. The jury may have found that Eck, in his own home with two women whom he was under duty to protect, dealing with an enraged man armed with a rifle, who had just shed his jacket to make it easier for him to commit violence upon all present, would have shaken hands with the defendant almost automatically, if not prayerfully. The question and the answer of Eck quoted (supra), illuminates the background of the act: “ Do you wish this jury to understand that you, the father of this girl, stood and took all that? ” And his answer, “ What could I do? ” True, under the judge’s charge, the jury could have found that the assault had terminated and had they so found there would have been no felony murder. The jury was drawn from the vicinage. They were farmers and householders, or their wives, in the county where this occurred. They were the ones who could properly decide whether the assault upon Eck was continuing regardless of the fact that the defendant in the middle of it stuck out his hand and shook the hand of Eck when the latter was seeking to pacify him. They were competent to decide that as a question of fact and that is what it was. We cannot say as a matter of law that those jurors were obligated to find that the assault upon Eck had terminated or that the finding is against the weight of the evidence/

Finally, can it he said that this was such an independent felony as is contemplated by the statute? It seems to us that we so held in the Giblin, Patini and Wagner cases cited (supra) and that they control here.

In the Giblin case, the defendant tendered a bill in payment for a purchase and when one Goelz asserted that it was a counterfeit he drew his pistol upon Goelz demanding with a threat, change of it. During the scufi&e which ensued and after several shots had been fired, two of which had struck Goelz, the deceased came into the store and ran to her husband’s assistance. She seized hold of defendant from behind and endeavored to rescue her husband from him. Holding his hand behind him, the defendant fired at her and the bullet entered her abdomen, inflicting the wound from which she died on the day following.” (p. 198.)

In the Patini case, the defendant stood with a loaded shotgun in front of a house and threatened to shoot those who came out, compelling those who did to return inside. “ When Giovanni Vasta, the brother of the deceased, came out of the house and saw the defendant point his gun at him, he called out to him to ‘ look out; there are people around here. ’ The defendant said, I don’t care, I will shoot you'too, unless you go back. ’ Giovanni asked him, if he could not go home by the public street, that he was in a hurry. He started to do so and walked close to the fence, and away from the defendant; but the latter kept his gun pointed at him. While doing so, Giovanni’s brother, Guiseppi Vasta, the deceased, came from the other side of the street and exclaimed to the defendant ‘ what are you doing, look out, what you point that gun to my brother for ? ’ The defendant replied, ‘ You keep still, stay where you are, otherwise I shoot you too. ’ As he said that, he turned and shot Guiseppi and then shot Giovanni. Guiseppi was killed; but Giovanni recovered from his wounds.” (p. 179.) We there held explicitly that if the defendant pointed his gun at Giovanni, at the same time threatening to shoot him if he did not stand still, that constituted assault in the second degree and that if, in pursuance of his purpose to commit the assault, he shot and killed the deceased he was guilty of murder in the first degree. We said that the felony of the assault upon Giovanni had not ceased and had not merged with the homicide. We distinguished People v. (184 N. Y. 237) and People v. Spohr (206 N. Y. 516) and then said: (p. 180) “ In the present case, the defendant was committing, or attempted to commit, an assault upon Giovanni Vasta by menacingly pointing his gun at him and that assault was quite distinct from the homicide. When, because of the threatened interference of the deceased, the defendant turned his gun away from Giovanni, the felonious assault was interrupted, but had not ceased; for the defendant, after having' shot the deceased, turned back and shot Giovanni. The minor felony committed upon Giovanni was independent of the homicidal act. The case does not differ, in its essential features, from that of People v. Giblin (115 N. Y. 196).” (Emphasis' supplied.)

I'n the Wagner case, one Lulu Saddlemire rented rooms in a three-story house. The defendant rented a room and two days later the suspicions of Miss Saddlemire were aroused by the conduct of the defendant on the second floor when his room was upon the third. After some minutes in one of the rooms there, the defendant faced Miss Saddlemire with his right hand behind his back. After some inquiries by Miss Saddlemire, the defendant struck her upon the head with an object wrapped in a towel. A struggle followed in which she called for her father and one Peter Basto. The latter rushed upstairs and finding the defendant with his hand upon her throat, struck the defendant a blow upon the head. The defendant released Miss Saddlemire and struck at him. She ran downstairs and called for help. While at the front door she heard two or three pistol shots and then heard Basto say, “I’m murdered, I’m murdered.” We held that the defendant might be convicted of murder in the first degree while engaged in the commission of any one of three felonies: (1) burglary; (2) grand larceny, and (3) assault in the second degree. We said (at p. 149) that the Trial Judge properly charged that the defendant might be convicted of murder in the first degree if he killed Peter Basto, while engaged in the commission of a felonious assault upon Miss Saddlemire. We also said, “If it be true, as we have held it to be, that the original assault was an ingredient of the subsequent killing, was included therein and comprehended thereby, then for the very reason that the felonious assault upon Peter Basto was not a crime precedent to a homicide committed upon him, it must be held that the homicide had its inception, and was committed, when the felonious assault upon Lulu Saddlemire was still in progress. That was an independent felony. (People v. Patini, 208 N. Y. 176.) It follows that the jury might have found that the defendant killed Peter Basto while ‘ engaged in the commission of a felony ’ within the meaning of subdivision 2 of section 1044 of the Penal Law.”

In People v. Moran (supra) we pointed out the differences between that case and the Wagner case. Thus we said (p. 104): “ We are told that Byrns grappled with the defendant to save a brother officer from the threat of fresh attack, or that so a jury might determine. Reference is then made to People v. Wagner (supra) as authority for a holding that a struggle thus begun is one connected with another felony so that intent is unimportant. In all this, there is a futile attempt to split into unrelated, parts an indivisible transaction. The attack upon Daslriewicz was not separate and distinct in motive or origin from the one upon Byrns. The summons by the defendant to surrender was aimed equally at each, and so was the threat of the revolver which he drew from his pocket to emphasize his words. At that very moment there began a felonious assault directed against both, against one as plainly as the other (Penal Law, § 240, subd. 1). Byrns did not plunge into a fight to which he had hitherto been a stranger, intent upon rescue and nothing else. He was in the fight from the beginning, a sharer of its perils from the moment the assault began (cf. People v. Spohr, supra). ⅜ ⅜ V’ (Emphasis supplied.)

And again on page 105: “ Wagner was engaged in an assault upon a woman when Basto, another occupant of the same house, came to the woman’s rescue, and in the ensuing fight was killed. We held that the trial judge did not err in permitting the jury to say that the homicide was by one engaged in a separate or independent felony, the assault upon the woman. The other grades of homicide were charged. The jury were not told that the evidence was susceptible of one interpretation and no other. The case was put to them in all its phases, with instructions appropriate to each. There is little need to elaborate distinctions. They appear upon the surface. Basto, a stranger to the fight, plunged into it while it was yet in progress, to stay the commission of a felony upon the person of another. * * (Emphasis supplied.)

The judgment of conviction should be affirmed.

Lehman, Ch. J.

(dissenting): On the night of April 21, 1943, Ella May Luscomb was shot and killed at the home of her father. The fatal shot was discharged from a rifle then held by the defendant. The defendant was charged with murder in the first degree. The indictment contains three counts. In the first two counts the indictment charged that the killing was committed from a deliberate and premeditated design to effect death. In the third count the indictment charges that the defendant “ willfully and feloniously shot and killed Ella May Luscomb * ⅝ then and there being engaged in the commission of the crime of Assault in the second degree upon one Reuben Eck, one Ida Eck and the said Ella May Luscomb ⅜ ⅛ Upon the first counts the court charged all the grades of homicide. Upon the third count the court charged that if the jury found that the killing was committed by the defendant while engaged in the commission of an assault upon Eeuben Eck the verdict must be murder in the first degree, but the jury might as a part of its verdict recommend that the defendant be imprisoned for the term of his natural life. The jury found the defendant guilty upon the felony count without such recommendation.

After the defendant was found guilty upon that count and sentence of death was imposed, the defendant’s attorney moved to set aside the verdict upon affidavits of all the jurors to the effect that it was the opinion and idea of the jury that the verdict as rendered would carry to the defendant life imprisonment or such reduction of the sentence as the court might see fit to impose.” We are agreed that the motion was properly denied. The jurors cannot “ properly be permitted to declare, with a view to affect their verdict, an intent different from that actually expressed by the verdict as rendered in open court.” (Dalrymple v. Williams, 63 N. Y. 361, 363.) Argument based on such affidavits may be addressed to the executive. We may review only the judgment which is not affected by them. The only question which we may consider upon this appeal is whether the finding of the jury that the defendant killed his wife in the commission of an assault upon her father Eeuben Eck is in accordance with the law and the weight of the evidence.

The relevant facts established by the evidence produced by the People are stated in the opinion of Judge CoNway. The defendant was an unfaithful husband, an irresponsible father who habitually drank to excess. Because of his bad habits, his wife left him and returned to her father’s home. He sent her a note begging her to come back. She refused. Then the defendant went to the father’s home. He had drunk many bottles of beer in the afternoon and evening of that day. He carried a rifle. In the kitchen of her father’s house he commanded her to return home. There was a “ scuffle ” and her parents hearing the noise went into the kitchen. There is evidence which the jury could accept, though denied by the defendant, that the defendant was “ shaking ” his wife and that as her parents came into the kitchen he released his wife and, pointing his

On the contrary the testimony of Reuben Eck which established that the defendant assaulted him by pointing a gun at him threatening to shoot, establishes also that thereafter the defendant laid the rifle on a table, took off his jacket, threatening to clean up the whole hunch of you.” Eck tried to pacify the defendant, telling him that no one was at fault. The defendant said, “ Rube, I don’t think you are at fault. I have always liked you,” and shook hands with Eck. Then the defendant picked up the rifle, turned to his wife, and threatened to kill her unless she went home with him. She refused and a few seconds thereafter she was killed by a bullet discharged from the rifle held by the defendant.

Perhaps the jury could find that even though the defendant put down his rifle and shook hands with Eck in friendly manner, yet that he did not withdraw his threats and that Eck still remained in fear that the defendant would carry out his threats if he interfered. It is clear, howuver, that the defendant was no longer pointing a gun at Eck and temporarily at least the assault against Eck had ceased. The question then is whether in any view of the evidence it can be said that the defendant killed his wife while he was committing an assault upon Eck.

"We are told that even though the felonious assault on Eck was for the moment interrupted it had not ceased and that the court so held under analogous circumstances in People v. Giblin (supra); People v. Patini (supra); People v. Wagner (supra). In those cases the deceased attempted to come to the assistance of another who was at that time being assaulted and received a death wound in the attempt. In People v. Giblin the husband of the deceased was resisting an assault when the deceased came to his aid. In People v. Patini the defendant was assaulting Giovanni Yasta a brother of the deceased when the deceased Guiseppi came to his brother’s aid. In its opinion in People v. Patini-1his court explained why in People v. Giblin it sustained a judgment convicting the defendant of murder in the first degree in the commission of a felony saying: The evidence showed that the homicide was committed while the defendant was engaged in the commission of a felonious assault upon the husband of the deceased. A dispute had arisen between the husband and the defendant over the' genuineness of a five-dollar bill; in the course of which the defendant drew his pistol upon the former. The deceased came into the store and, rushing to her husband’s assistance, seized hold of the defendant from behind. In that position, he fired upon, and killed, her. We sustained the conviction of murder in the first degree, upon the theory that the deceased received her death wound in the attempt to a,id her husband, upon whom the defendant toas committing an unwarrantable assault.” (p. 181.) (Italics through this opinion are new.) It thus appears that in People v. Giblin, at the time the defendant made the fatal assault on the deceased, his assault on her husband had not ceased or been interrupted and the violence which resulted in the death of the deceased was exercised in the furtherance of the original assault. In People v. Patini the circumstances were exactly similar except that there it might perhaps be said that the original assault was temporarily interrupted when the defendant turned his gun away from one brother and shot the brother coming to the rescue. The court, however, pointed out that even if the assault was “ interrupted ” it had not ceased, saying: When, because of the threatened interference of the deceased, the defendant turned his gun away from Giovanni, the felonious assault was interrupted, but had not ceased; for the defendant, after having shot the deceased, turned back and shot Giovanni.” (p. 180.) None of the circumstances which this court said justified the decision in those cases are present here.

Nor can support for the decision be found in People v. Wagner (supra). Again it appeared there that the deceased, Peter Basto, came to the rescue of Lulu Saddlemire while the defendant was striking her upon the head. ‘ ‘ The defendant then had his hand upon the throat of Miss Saddlemire. He released his hold only when Peter Basto struck him a blow. At that moment the defendant began the assaulti upon Peter Basto which ended in the latter’s death. Thus the fatal assault began at a moment when the assault u,pon Lulu Saddlemire was in progress.” (p. 149.) In the case we are considering now it should be noted again that the defendant on the contrary had turned his gun away from Reuben Eck and Eck was in no present danger from the defendant and subject to no threat unless he thereafter should come to the aid of his daughter who was being assaulted. In my opinion a finding that the assault on Eck, though interrupted, had not ceased is without support in the evidence.

Even if, however, it could be said that the assault on Eck was merely interrupted and had not ceased or even if it could be said that it was in progress when the deceased was shot, because the fear inspired by the assault continued, a finding that the fatal assault on the deceased was committed in the commission of the assault on Eck would not be in accord either with reason or authority. It is not sufficient that, the killing occurred while another felony is in progress. It must be perpetrated while the defendant is “ engaged in the commission of * ⅜ * a felony. ’ ’ The killing must occur in the commission of the felony. In other words the fatal assult must be a part of the underlying felony. Thus in Buel v. The People (supra, p. 497) we said it is sufficient “ if death ensued in consequence of that felony.” The matter is considered at greater length in People v. Muter {supra, p. 243) where the court said: “ A person who attempts or engages in the commission of a felony, is not only chargeable with express malice, but also with being perversely wicked, evincing a depraved mind and a disregard of human life, and if, while so engaged, he causes the death of a person, although unin-tontional, the Legislature has seen fit to enlarge the crime and make it murder in the first degree, so that, if a person engaged in the commission of a rape and in order to accomplish the act resorts to violence, from which death is unintentionally produced and which would he only manslaughter were it not for the malice, wickedness and intent to rape, yet by reason thereof it is made murder in the first degree. (Buel v. The People, 78 N. Y. 492.) The same is true with reference to the unintentional killing of a person while engaged in the commission of a robbery, a burglary or- an attempt to escape from imprisonment. There may be no intent to* kill, but the violence having been perpetrated while engaged in the robbery, burglary or attempt to escape from imprisonment, it is murder in the first degree.” There must, it was held, be an “ independent felonious design.” “ By the same act one may commit two crimes, and to constitute murder in the first degree, as in the commission of a felony, it is not necessary that there should be an act collateral to or independent of that which causes the death; but if the act causing the death he committed with a collateral and independent felonious design it is sufficient; thus, if the violence used to commit a rape or a robbery results in death the case is plainly within the statute, and so this court has held in the cases above referred to.” (p. 244.) Thus, the killing of Ella May Luscomb was committed “ in the commission ” of an assault against Reuben Eck, her father, only if the act was committed with an independent felonious design ’ ’ in furtherance of the assault against Eck.

That rule has been applied by this court in People v. Moran (246 N. Y. 100) where it was claimed that an assault constituted the underlying felony. The evidence there showed that the defendant simultaneously assaulted two police officers and killed both. The fatal assault on each occurred when the assault on the other was in progress, but we held that the killing of the police officer for which Moran was on trial did not occur in the commission of an assault on the other unless it appeared that the deceased officer was killed while “ intent upon rescue ” of his fellow officer.

In the instant case the evidence shows indisputably that the defendant went to the home of Reuben Eck with the purpose of inducing or compelling his wife to return to his home. He may, perhaps, have intended to assault her if she refused. The assault by defendant on Ms wife’s parents occurred during a lieated dispute between the defendant and Ms wife and perhaps during an assault by defendant on Ms wife when her parents entered the — probably to aid their daughter. Perhaps the assault on Eck may hare been committed during and in furtherance of an attack on the deceased and to prevent them from It cannot possibly be found that the assault upon the deceased was committed to prevent her from interfering in the assault on Eck or with a “ nefarious ” intent to further that attack independent of the nefarious intent involved in the attack on the deceaséd. 4

The cited cases show that such an independent nefarious intent is an essential element of a “ felony murder ” and the language in the opinion of this court in People v. Moran which has been italicised by Judge CoNway shows that the court reversed the. conviction of a confessed and defiant murderer because there was no proof or finding of such intent. The judgment of conviction should be reversed and a new trial ordered.

Lewis, DesmoNd and Thacher, JJ., concur with CoNway, J.; LehmaN, Ch. J., dissents in opinion in wMeh Loughrah and JJ., concur.

Judgment of conviction affirmed.


source: Caselaw Access Project

license: Public Domain

text:
    The People of the State of New York, Respondent, v. Charles H. and William Solomon, Appellants.
    Argued January 18, 1944;
    decided April 20, 1944.

      Harold H. Corbin, Herman Hoffman, Edward J. Bennett and Abraham J. Gellinóff for William Solomon, appellant.
    I. Corroboration was lacking as to bo.th the 1935 and 1937 transactions. (Code Crim. Pro. § 399; People v. Goldstein, 285 N. Y. 376; People y. Reddy, 261 N. Y. 479; People v. Munroe, 190 N. Y. 435.) II. Evidence implying the commission by this defendant of another unrelated crime was improperly admitted. (People v. Molineux, 168 N. Y. 264; People v. Zucker, 20 App. Div. 363, 154 N. Y. 770; People v. Montana, 252 App. Div. 109.) III. The trial court also erred in admitting evidence of two other alleged crimes. (People v. Molineux, 168 N. Y. 264; People v. Montana, 252 App. Div. 109.)

      Henry Epstein, James B. Gitlits and Victor 8. Axelroad for Charles EL Mullens, appellant.
    I. It was reversible error to admit in evidence a chain of acts and transactions of criminal or tainted character, not charged in the indictment, unconnected and unrelated to the transactions constituting the alleged crimes therein charged. (People v. Harvey, 235 N. Y. 282; People v. Sharp, 107 N. Y. 427; People v. Molineux, 168 N. Y. 264; People v. Romano, 84 App. Div. 318; People v. Zucker,' 20 App. Div. 363,154 N. Y. 770.) II. The corroborative evidence was insufficient as a matter of law. There was no direct proof of the receipt by Mullens from Burland of any moneys. (People v. Kress, 284 N. Y. 452;' The People v. Kennedy, 32 N. Y. 141; Lamb v. Union Ry Go., 195 N. Y. 260; Bichardson on the Law of Evidence, 3rd ed. § 111; People v. Buchalter, 289 N. Y. 181; People v. Rasesics, 206 N. Y. 249.)

      Frank 8. Hogan, District Attorney (Stanley H. Fuld and Richard G. Denser of counsel), for respondent.
    I. The guilt of the defendants was proved beyond a reasonable doubt. (People v. Peller, 291 N. Y. 438; People v. Pesky, 254 N. Y. 373; Penal Law, § 2; People v. McKane, 143 N. Y. 455; People v. Jackson, 182 N. Y. 66; People v. Birnbaum 208 App. Div. 476; Wilson v. United ’States,' 162 U. S. 613.) The whole case need not be proved outside of the testimony of the accomplice. (People v; Buchalter, 289 N. Y. 181; People v. Nitsberg, 287 N. Y. 183; People v. Goldstein, 285 N. Y. 376; People v. Kress, 284 N. Y. 452; People v. Cohen, 223 N. Y. 406; The People v. Hooghkerk, 96 N. Y. 149.) II. The corroborative evidence is sufficient if it lends to connect the defendant with the commission of the crime in snch a way as may reasonably satisfy the jury that the accomplice is telling the truth about his participation therein. {People v. Reddy, 261 N. Y. 479; People v. Dixon, 231 N. Y. 111.) III. There was ample corroborative evidence. {People v. O’Neil, 48 Hun 36, 109 N. Y. 251; People v. Furlong, 140 App. Div. 179, 201 N. Y. 511; People v. Hines, 284 N. Y. 93; People v. Connolly 253 N. Y. 330; People v. Jackerson, 247 N. Y. 36; People v. Elliott, 106 N. Y. 288; People v. Elbroch, 250 App. Div. 583.) IY. The defendants’ guilt under counts 3 and 6, covering the 1937 transaction was established. {Kerr v. Kerr, 134 App. Div. 141; People v. Becker, 215 N. Y. 126; People v. O’Neil, 48 Hun 36, 109 N. Y. 251; People v. Gaffey, 182 N. Y. 257; Campanelli v. United States, 13 P. 2d 750; People v. Sweeney, 161 App. Div. 221, 213 N. Y. 37.) V. Evidence of other transactions involving Charles "Walsey and the defendants, bearing upon various phases of the case, was properly received. {People v. Johnston, 228 N. Y. 332; Lindsay v. People of the State of N. Y., 63 N. Y. 143; People v. Duffy, 160 App. Div. 385, 212 N. Y. 57; Terry v« United States, 51 P. 2d 49; Clune v. United States, 159 U. S. 590; People v. Peckens, 153 N. Y. 576; People v. Thau, 219 N. Y. 39; People v. Grutz, 212 N. Y. 72.; Johnston v. United States, 22 P. 2d 1; People v. Pindar, 210 N. Y. 191; People v. Sherlock, 166 N. Y. 180; People v. Cahill, 62 App. Div. 612; People v. Seidenshner, 210 N. 341; People v. Molineux, 168 N. Y. 264.)
   In outlining this bulky criminal case, it wd.ll be convenient to abridge two corporate names appearing in the record. Burland Printing Co., Inc., will be called the Bur-land Company. Temporary Emergency Belief Administration of the State of New York will be called the Belief Administration.

In 1935, the Burland Company was awarded a contract to supply the Belief Administration with its requirements of printed material for the ensuing fiscal year. In 1936, these parties entered into a like contract for the next fiscal year. Again in 1937, a further like contract for the following fiscal year was made by the Burland Company with the State Department of Social Welfare — the successor of the Belief Administration.

The People claimed that the defendant Mullens through his official position as a Deputy Comptroller of the State of New York had procured the execution of all three of these agreements in return for money that came to him from two officers of the Bur land Walsey and Ira Walsey. The People also claimed that the defendant was not a public aided and abetted Mullens in each of these three transactions by receiving the unclean money from the Walseys and dividing it between Mullens and himself.

On that basis, both defendants were principals (Penal Law, § 2) and they were so indicted on six charges. Each of the aforesaid three transactions was made the subject of two counts. The 1935 transaction was presented in counts 1 and 4; the 1936 transaction in counts 2 and 5; the 1937 transaction in counts 3 and 6. The first of each of these sets of counts was drawn with reference to section 1826 of the Penal Law which says that a public officer who receives or agrees to receive any unlawful fee for doing or omitting any official act shall be guilty of a felony. Each of the other three counts looked to section 1823 which says that an executive officer who asks or receives any bribe upon an understanding that his official conduct shall be influenced thereby is guilty of a felony.

By separate findings as to each defendant and in respect of each of the six charges, the jury convicted both defendants on all six counts. Upon appeal to the Appellate Division, counts 2 and 5 — the charges relating to the 1936 transaction — were dismissed for failure of proof and the judgments of conviction as so modified were affirmed. By leave of a judge of this court, the defendants have now brought here for review their convictions upon counts 1 and 4 (the charges relating to the 1935 transaction) and counts 3 and 6 (the charges relating to the 1937 transaction).

The 1935 transaction is dealt with by the People as an affair altogether distinct from the transaction of 1937, and rightly so, as we believe. On the 1935 transaction, the main witness against the defendants was Charles Walsey, who at the times in issue was president of Burland Company. Put into direct discourse his recital of that transaction was as follows: Por a long period beginning in 1931, Mr. Solomon helped the Bur-land Company in its quest for contracts and his nominees regularly received payment for Ms services. The State printing contract for the fiscal year 1935-1936 was let by items designated as Groups A, B, C and so on. At that time, a local relief agency in the city of New York — the Emergency Belief Bureau — had been authorized by the Belief Administration to order printing under the State contracts. The 1935-1936 State contract was awarded to the Burland Company upon numerous items — but not upon Group B, which included many printing requirements of the Emergency Belief Bureau. In that state of affairs, I told Mr. Mullens at Albany that there was $8,000 or $10,000 in it if Burland could get from the Belief Administration some kind of contract that would include Group B business. Mr. Mullens told me to see Mr. Solomon about the financial part. I saw Mr. Solomon and a few days later he told me everything would be all right. Mr. Mullens then suggested to me that I have my son, Ira "Wakey, as vice-president of the Burland Company, write to the purchasing agent of the Belief Administration offering on Group B a price 2% lower than the existing bid. Such a letter was sent by my son at my direction. About ten days later, my son, at the request of Mr. Mullens, went to Albany and there the promised contract was then signed and approved by the office of the State Comptroller. The same day — July 23, 1935, Mr. Solomon summoned me to his office in the city of New York to discuss the business of payment. We agreed on $8,000. Prom Ms office, I called up the office of the Burland Company downtown and told the bookkeeper to send up two checks for $4,000 apiece without putting in the name of any payee. On the arrival of these checks, I asked Mr. Solomon who it was I should make them out to and he gave me the name of H. Bitterman. I made out the checks to H. Bitterman, gave them to Mr. Solomon and went down to my office. Just after I got back there, a telephone call came in from Mr. Solomon that there was trouble about cashing the checks. He asked me to meet him at the Sterling National Bank on 39th Street and put my indorsement on the checks in order to get the cash for him. I went up to the bank. There I saw Mr. Mullens and Mr. Solomon waiting outside. This was- around noontime. I went upstairs in the bank, cashed the checks, brought down $8,000 and handed it to Mr. Solomon in the presence of Mr. Mullens; then I left and that was the end of that matter.

A corresponding report of Ira Walsey’s part in the 1935 transaction was made by his testimony.

The Walseys were accomplices as a matter of law. Section 399 of the Code of Criminal Procedure provides: “ A conviction cannot he 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.” The corroborative evidence so required must be evidence from an independent source of some material fact tending to show not only that the crime has been committed but that the defendant was implicated in its commission. (The People v. Hooghkerk, 96 N. Y. 149.) The commission of the crime and the defendant’s connection therewith are, however, the same thing when, as in the present case, acts of bribery are alleged. (People v. O’Neil, 109 N. Y. 251, 267.) The corroboration must always be by some witness other than another accomplice. (People v. O’Farrell, 175 N. Y. 323.) Where, as in this instance, several defendants are on trial, there must be corroboration as to each one. (People v. Feolo, 284 N. Y. 381.)

Two items of nonaccomplice testimony were offered to confirm Charles Walsey’s account of Solomon’s connection with the 1935 transaction, namely: 1. H. Bitterman — the payee of the two $4,000 checks that were cashed at that time — was Solomon’s friend and Solomon theretofore had made it a practice to have funds paid to himself by way of checks drawn to the order of this same Bitterman. 2. At the request of Charles Walsey, the two $4,000 checks were drawn (the name of the payee being left out) by the bookkeeper of the Burland Company at its office and were then dispatched therefrom by the bookkeeper to Charles Walsey at the office of Solomon which was farther uptown in Manhattan. These two independent facts, we believe, could have been sensibly taken to be sufficient other evidence tending to connect Solomon with the 1935 transaction.

In their argument for Solomon on this branch of the case, his counsel say: “ Charles Walsey’s signature is on those two checks below Bitterman⅛ signature, indicating that not Solomon, nor Bitterman, but Charles Walsey himself, cashed the checks and received the money. There is only Walsey’s word that he thereafter gave that money to Solomon in front of the bank.” But this way of reasoning would be equally appropriate if the two checks had been drawn to the order of Solomon himself and had first been indorsed by him and then by Charles Walsey. So regarded, the argument virtually means that the testimony of an accomplice in respect of the fact of a criminal bribery must in all cases be supported by direct evidence — a proposition that must be rejected. (See 2 Bishop’s New Criminal Procedure, 2d ed. pp. 911, 912. Cf. Penal Law, § 1041.)

As we pass now to a consideration of the jury’s finding on the 1937 transaction, we keep in mind that — as each of the several acts charged against the defendants should be regarded as distinct from the others — the evidence with reference to the 1937 transaction is to be dealt with separately and without bringing into the scale the evidence given upon the 1935 transaction.

On June 24, 1937 — as Mullens conceded — Ira Walsey met Solomon, Mullens and a Mr. Dougherty of the State Comptroller’s staff in rooms occupied by Solomon at a prominent hotel in the city of New York. In respect of this meeting, Ira Walsey said: ‘ ‘ Mr. Mullens had the contract with him there. I signed the contract. And after I signed the contract I went into the other room with Mr. Solomon. I gave him $10,000. As I left the room Mr. Mullens went into the room that I had just left.” All this (according to the Walseys) was in performance of a corrupt bargain with Mullens for an award to the Bnrland Company of the State contract for the fiscal year 1937-1938.

There was independent evidence of the following facts: 1. Ira Walsey had more than $10,000 in currency in his possession on June 24,1937. 2. Mullens and Dougherty together came to Solomon’s hotel suite on that dhy, after the 1937-1938 State contract with the Bnrland Company had been brought by Dougherty to the city of New York from Albany at the behest of Mullens and at another hotel had earlier been approved by Mullens as Deputy State Comptroller. 3. Ira Walsey and Solomon withdrew from the outer room of Solomon’s hotel suite to a separate room there. 4. Mullens entered that separate room upon the departure of Ira Walsey therefrom.

As to these fractions of the proof, the District Attorney in his brief says: only did Dougherty, who accompanied Mullens there, testify that Ira Walsey had been in Solomon’s room with Solomon and Mullens at the time in question, but Mullens himself acknowledged that such was the fact. The circumstance that Dougherty did not know what transpired at the meeting is immaterial; evidence of the defendant’s presence at a conference which, according to the accomplice, concerned the crime charged, constitutes the corroboration (The emphasis is ours.)

People v. O’Farrell, 175 N. Y. 324, 325; People v. Kress, 284 N. Y. 452; People v. Courtney, 28 Hun 589; People v. Willard, 159 App. Div. 19; People v. Goodman, 170 App. Div. 30.)

Upon the foregoing examination, we do not find the case for' the People to he necessarily conclusive. Prom that viewpoint, we now take up exceptions that were registered by the defendants against several matters of evidence.

Solomon was shown to be a political leader. The two $4,000 checks that were used at the time of the 1935 transaction were drawn as we have noticed to the order of H. Bitterman. As corroboration for Charles Walsey’s story of that transaction, the People were allowed to introduce against Solomon evidence that in 1933 two $1,000 checks which were then drawn to the order of Bitterman by the owner of a restaurant property in the city of New York were paid to Solomon as a reward for the removal of a subway entrance structure that had stood in front of that property. Though in his instructions to the jury the Trial Judge took pains to stress the apparent absence of impropriety in that occurrence, the contrary implication was we think, too obvious to have been ignored. There was no cogent reason for dragging out that 1933 episode, for Solomon’s habit so to make use of Bitterman’s name had already been demonstrated and was undisputed. The manifestly prejudicial quality of this remote and merely cumulative fact seems to have been its whole worth to the People.

Charles Walsey was permitted to testify respecting a collusive arrangement between the Burland Company and a com-, peting concern pursuant to which the Burland Company — in the interest of and for a price received from its competitor — had submitted a series of bids on State printing contracts at prices that were grossly excessive There was, however, no showing of any participation by either Solomon or Mullens at any stage of that fraudulent “rigging of bids.” Conceding this gap, the People now say no harm could have come to either defendant in consequence of such proof of trickery practiced by others. But that proof — which touched every State printing contract from 1932 to 1939 — was offered by the People (so they said) “ as part of a common scheme and plan involved in these bribery situations,” — and doubtless was so weighed by the jury.

None of these collateral transactions had any probative force save as thereby it was implied that the defendants were men whose experience had predisposed them to the commission of offenses of the sort for which they were on trial. Since these numerous extraneons crimes were allowed to be taken into account, we must conclude that the jury were influenced thereby (see People v. Robinson, 273 N. Y. 438, 445). All this cannot be overlooked consistently with the hitherto fundamental rule that character is never an issue in a criminal prosecution unless the accused choose to make it one (see People v. Zachowitz, 254 N. Y. 192).

When, as in this instance, men are put on trial on several distinct charges, evidence which has relation solely to one of the accusations may seem to be heightened by the evidence given upon the others and in that way a mass of evidentiary details may unfairly appear to include something which is actually wanting. That fallacy is hard to avoid, as everybody knows who has had occasion to canvass a record like the one in hand. Quite probably the jury here so judged the part from the whole in reaching their conclusion that even the charges relating to the 1936 transaction had been established. Prom any standpoint, then, the present case was a controversy from which foreign things of such a nature as to invite repro-bation should have been rigidly excluded. We cannot assume that the different course of the trial did not unduly contribute to a verdict of guilty which (as the Appellate Division has found) was without warrant in one considerable part.

The judgments should be reversed and a new trial ordered.

Judgments reversed, etc.


author: Rippey, J.

text:
    Thomas H. McGrail, Appellant, v. Equitable Life Assurance Society of the United States, Respondent.
    Argued December 2, 1943;
    decided April 20, 1944.

      Michael D. Reilly for appellant.
    I. The evidence justified a finding that the accident was the sole and exclusive cause of the plaintiff’s disability. (Silverstein v. Metropolitan Life Ins. Go., 254 N. T. 81; JEtna Life Ins. Go. v. Young, 113 F. 2d 601; Preferred Accident Ins. Go. of New York v. Combs, 76 F. 2d 775; Lewis v. Ocean Acc. & G. Gorp., 224 N. Y. 18; Schwarts v. Commercial Travelers Mutual Association, 132 Mise. 200, 227 App. Div. 711, 254 N. Y. 523; Miller v. F. & Gas. Go., 97 F. 836; JEtna Life Ins. Go. v. Young, 103 F. 2d 839.) II. The evidence justified a finding that the plaintiff was wholly and continuously disabled from the date of the accident. (Parmelee v. Hoffman Fire Ins. Go., 54 N. Y. 193; McMaster v. Pres., etc., Ins. Go. of N. Am., 55 N. Y. 222; Keels v. Mutual Reserve Fund Life Ass’n., 29 F. 198; Clarke v. Travelers Ins. Go., 94 Yt. 383; Brendon v. Traders & Travelers’ Acc. Go., 84 App. Div. 530; Wolcott v. United L. & A. Ins. Assn., 55 Hun 98; Harasymczuk v. Massachusetts Accident Go., 127 Mise. 344; New York L. Ins. Go. v. McLean, 214 Ala. 401; Carmichael v. Benefit Association of By. Employers, 153 Wash. 542; Booth v. United State Fidelity S Guaranty Go., 130 Atl. 131; Gross v. Commercial Gas. Ins. Go. of Newark, 101 Atl. 169.) III. Acceptance of the defendant’s check in a lesser amount than that to which he was entitled did not prejudice rights. (Gillet v. Bank of America, 160 N. Y. 549.) IY. The court should construe the language of the policy so as to accomplish the object of the parties in making the contract. (Neill v. United Friends, 149 N. Y. 430;
      Thayer v. Standard Life & Accident Insurance Go., 68 N. H. 577; Earasymcsuk v. Massachusetts Accident Go., 127 Mise. 344; Medlinsky v. Metropolitan Life Ins. Go., 146 Mise. 855.) Y. The Appellate Division erred in dismissing the complaint. (Queeney v. Willi, 225 N. Y. 374; King v. Interborough Rapid Transit Go., 233 N. Y. 330.)

      Charles E. Nichols for respondent.
    I. There can l>e no recovery under the accident provisions of the policy where the accident is not the sole and exclusive cause of the disability. (Whit-latch v. Fidelity & Casualty Go., 149 N. Y. 45; Weil v. Globe Indemnity Go., 179 App. Div. 166; London Preferred Accident Ins. Go., 43 App. Div. 487; Lavine v. Indemnity Ins. Go., 260 N. Y. 399.) II. Where at the time of the accident there was an existing disease which co-operated with the accident and without which the accident would not have produced the disability, the accident cannot be considered as the sole cause, independent of all other causes. (McMartin v. Fidelity & Casualty Go., 264 N. Y. 220; Smith v. Massachusetts Bonding & Insurance Go., 207 App. Div. 682, 241 N. Y. 558; Allendorf v. Fidelity and Casualty Go., 250 N. Y. 529; Reynell v. Indemnity Insurance Go., 258 N. Y. 572; Morrett v. Metropolitan Life Insurance- Go., 154 Mise. 825, 243 App. Div. 844, 268 N. Y. 727; Silver stein v. Metropolitan Life Ins. Go., 254 N. Y. 81; Gold-stein v. Standard Accident Ins. Go., 236 N. Y. 178.) III. The accident could not have produced the coronary thrombosis without the contributing’ factor of disease. IY. The coronary thrombosis was precipitated by an aggravation of the existing diseased condition. Y. Arteriosclerosis is a disease of a chronic and progressive nature and not merely a predisposing tendency. {Romanoff v. Commercial Travelers Mut. Acc. Assn, of A., 243 App. Div. 725; Christian v. Metropolitan Life Insurance Go., 252 App. Div. 252; Order of the United Commercial Travelers v. Nicholson, 9 F. 2d 7; AEtna Life Ins. Go. v. Ryan, 255 F. 483; Commercial Travelers’ Mut. Acc. Assn. v. Fulton, 79 F. 423.) YI. Provisions such as those contained in this policy have been construed to mean exactly what they say, which is that unless an insured is totally disabled from the date of the accident there can be no recovery. Partial disability is not sufficient to constitute total, nor is a disability which becomes total sometime subsequent to tbe accident one from tbe date of tbe accident. (Johnson v. Travelers Insurance Go., 269 N. T. 401; Hagadorn v. Masonic Accident Assn., 59 App. Div. 321; Irwin v. Travelers Insurance Go., 243 App. Div. 377; Rufino v. Metropolitan Life Insurance Go., 154 Mise. 628; AEtna Life Ins. Go., -v. Young, 103 F. 2d 839.) VII. Tbe check accepted by0 plaintiff and tbe accompanying statement showed that tbe check was payment for partial disability for tbe period from February 9th to April 1st and while it was accepted as payment “ in part ” for plaintiff’s whole claim against tbe defendant, it was never accepted as payment “ in part ” for tbe period from February 9th to April 1st, and hence, shows clearly that plaintiff assumed that be was only partially disabled prior to April 1st. VIII. Prejudicial error was committed by tbe trial court in charging tbe jury. (McMartin v. Fidelity & Casualty Go., 264 N. Y. 220; Johnson v. Travelers Insurance Go., 269 N. Y. 401.)
   Rippey, J.

On August 4, 1919, defendant issued its policy of insurance to plaintiff whereby it agreed to pay a weekly indemnity for total disability arising from bodily injury effected during tbe term of tbe policy solely through external, violent and accidental means, directly and independently of other causes, which injury should wholly and continuously disable the insured from the date of the accident and prevent him from performing “ any and every duty pertaining to his occupation,” for a period of two hundred consecutive weeks and thereafter so long as the insured should be wholly and continuously disabled by such injuries from engaging in any occupation or employment for wages or profit, or a weekly indemnity for partial disability for a period not exceeding twenty-six weeks following total disability or from the date of the accident if such injuries should continuously disable the insured from performing ‘ one or more important daily duties pertaining to his occupation,” except where such accident or disability should be caused directly or indirectly, wholly or partly, by bodily or mental infirmity or disease.

While the policy was still in force, the insured accidentally fell on the ice near his home on February 9, 1940, landing on the back of his head and shoulders. He claims, in this action, to be entitled to recover indemnity for total disability from April 1, 1940, which disability resulted, from the date of the accident, from a dislocated shoulder, coronary thrombosis and neuritis brought about solely by the accident. Defendant concedes total disability arising from coronary thrombosis and neuritis from and after April 1,1940, but refused to pay indemnity therefor on the grounds (1) that such disability did not arise at the time of the accident and continue thereafter uninterruptedly, and (2) that the disability for which the insured. seeks indemnity was caused directly or indirectly, wholly or partly, by disease. After a trial, plaintiff recovered a verdict from a jury. Upon appeal, the judgment entered upon that verdict was set aside and the complaint dismissed as matter of law on the ground that plaintiff had failed to show that his loss fell within the coverage of the policy.

The plaintiff was a physician and surgeon, fifty-five years of age at the time of the accident, and had practiced his profession continuously in the city of Albany since 1915. The jury were authorized to find that the disabling thrombosis first manifested itself immediately upon the happening of the accident and thereafter continued with more or less severity, rendering it impossible for the plaintiff to perform any of the duties pertaining to his occupation in manner such as would bar him from recovery. He had no intimation of the existence of such a condition prior to the time of the accident and he was first informed that that condition disabled him after the taking of an electrocardiogram on April 16, 1940 by a heart specialist, and after a consultation in regard to his condition by a number of physicians. Previously, he had filed a written notice of disability with the defendant in which the nature of his illness was stated to be luxation of the right shoulder joint, traumatic neuritis, left ventricular preponderance and enlargement of the heart, the injury to the shoulder occurring on February 9th and the heart condition on February 26th. On April 6, 1940, the plaintiff filed two additional statements in which he asserted that he first became completely unable to perform the duties of his occupation on February 9, 1940, and that the date on which he was first able to resume any of his duties was February 23, 1940. In those notices, the plaintiff claimed forty-one days of total disability and sixteen days of partial disability and defendant paid the claim on that basis for the period from February 9 to April 1, 1940.

Plaintiff was in bed most of the time from the date of the accident, at least until February 23rd. Between those dates he saw some three former patients upon whom he had operated and another patient whom he was turning over to another physician. Between February 23rd and April 1st, he went to his office on from six to ten different occasions to prepare reports for attorneys and insurance men concerning cases which he had prior to the accident. He saw three of his former patients at his office during that period and a former patient at the latter’s home. He treated none of those patients, received no fees and the extent of his attention to them consisted of preparation for turning them over to other physicians, or at least the jury could so find. Ninety per cent of the plaintiff’s work consisted of surgery. It was undisputed at the trial that he performed no surgery after the accident, that he kept no regular office hours, that he took on no new patients.

Buies for the construction of contracts of insurance do not differ from those to be applied to the construction of other contracts. When the terms used are clear and unambiguous, they are generally to be taken and understood in their plain, ordinary and proper sense (Johnson v. Travelers Insurance Co. 269 N. Y. 401, 408). But resort to a literal construction may not be had where the result would be to thwart the obvious and clearly expressed purpose which the parties intended to accomplish or where such a construction would lead to an obvious absurdity (Silverstein v. Metropolitan Life Ins. Co. 254 N. Y. 81) or place one party at the mercy of the other (Russell et al. v. Allerton, 108 N. Y. 288, 292). Such meaning must be given to the terms used as would be ascribed to them by the ¡average man in applying for insurance and reading the language iof the policy at the time it was written (Lewis v. Ocean Acc. & G. Corp., 224 N. Y. 18, 21; Silverstein v. Metropolitan Life Ins. Co., supra). Consistently followed in this State has been the rule that the policy must be construed reasonably and that it .must be given a practical construction, not thereby with the result that there is a revision of the policy or an increase of the risk and thus an extension of the resulting liability, but for the purpose of determining what the parties must reasonably have intended by its terms when the policy was written by defendant and accepted by the plaintiff (Garms v. Travelers Insurance Co., 242 App. Div. 230; Williams v. John Hancock Mut. Life Ins. Co., 245 App. Div. 585; Goldstein v. Connecticut General Life Ins. Co., 273 N. Y. 578; Mintz v. Equitable Life Assurance Society, 276 N. Y. 546; Hartol Products Corp. v. Prudential Insurance Co., 290 N. Y. 44). The wording of the policy was that total disability ensued when the insured was prevented from performing *1 any and every duty pertaining to his occupation Plaintiff’s occupation was that of physician and surgeon when the policy was written. If unable to continue his profession, he is prevented from performing any and every ” duty pertaining to his occupation within the contemplation of the parties when the policy was issued (Silverstein v. Metropolitan Life Ins. Co., supra; Mintz v. Equitable Life Assurance Society, supra). Total disability would still exist under the terms of the policy, though in isolated instances plaintiff attempted to perform some duty pertaining to his occupation, if incapable of safely and efficiently engaging in any of his usual duties (Vance on Insurance, 2d ed. p. 907). It generally follows from the decisions in this State (Wolcott v. United L. & A. Ins. Assn., 55 Hun 98; Brendon v. Traders & Travelers’ Acc. Co., 84 App. Div. 530; Harasymczuk v. Massachusetts Accident Co., 127 Misc. 344) that it was a question for the jury whether upon the evidence the insured was capable of performing and did perform any substantial part of any of his duties as a doctor, as a physician and surgeon, and only if the jury should find, as the court here charged, that he was capable of performing and did perform a substantial part of any of the duties of that occupation, after he received his injuries, could it be said that he was not totally disabled within the meaning of the terms of the policy from performing “ any and every duty pertaining to his occupation.” It is elsewhere so held by high authority (United States Casualty Co. v. Perryman, 203 Ala. 212; Hallock v. Income Guaranty Co., 270 Mich. 448; Lobdill v. Laboring Men’s Mutual Aid Assn., 69 Minn. 14; Moore v. Pacific Mutual Life Ins. Co., 128 Neb. 605; Standard Acc. Ins. Co. v. Bittle, 36 F. 2d 152). Seasonable construction of tbe words “ any and every ” as used in tbe policy in suit does not mean that tbe insured must be confined to bis bed and totally helpless in order to recover (Silverstein v. Metropolitan Life Ins. Co., supra; Mintz v. Equitable Life Assurance Society, supra).

Such a construction gives its intended effect to tbe total disability clause and to tbe partial disability clause of tbe policy. An insured may suffer partial disability which will “ prevent him from performing one or more important daily duties pertaining to bis occupation ” and yet be able to perform other duties. An insured suffers total disability when be is prevented from performing each and every duty though be may be able to perform, perhaps with peril to himself, occasional acts relating to bis vocation, but not consitnting a substantial part of any “daily (Fitzgerald v. Globe Indem. Co. of N. Y., 84 Cal. App. 689; Harrison v. Life & Acc. Ins. Co., 167 Tenn. 394). Tbe frequency and nature of tbe acts performed were matters properly for tbe consideration of tbe jury (Lobdill v. Laboring Men’s Mutual Aid Association, supra). Tbe foregoing is not contrary to tbe decision in Johnson v. Travelers Insurance Go. (supra) since in that case tbe evidence established that tbe insured suffered no loss of time at all, either total or partial, until some four or five weeks subsequent to tbe accident and there was no evidence in that case that plaintiff was prevented from substantially performing all of bis duties in tbe interim.

Tbe admissions by plaintiff in bis statements of claim, if they were sucb admissions, that be was only partially disabled following tbe accident do not conclude him, as matter of law, from asserting total continuous disability from tbe date of tbe accident when be found that to be tbe fact (Brendon v. Traders & Travelers’ Acc. Co., supra; Hallock v. Income Guaranty Co., supra).

Tbe trial court also correctly submitted to tbe jury, upon conflicting medical testimony, tbe question of whether or not tbe disability of tbe insured was caused directly or indirectly, wholly or partly, by bodily infirmity or by disease. There was ample evidence to support tbe jury’s finding that tbe thrombosis was produced solely as a result of tbe accident. That is not negatived by tbe fact, as tbe medical experts testified, that coronary thrombosis could not occur without arteriosclerosis existing to some extent, at least, in the arteries. It was not so “ significant that it would he characterized as disease or infirmity in the common speech of men ” (Silverstein v. Metropolitan Life Ins. Co., supra, p. 84). The jury were authorized to find that plaintiff suffered no ill effects from any hardening of the arteries, if such existed, prior to the time of the accident. It is a scientific fact, as well as a matter of common knowledge, that such a condition may exist for years without serious effects. The evidence was that every person over forty years of age has, with varying degree, some hardening of the arteries. It must he held that the policy was written by defendant with that fact and all of its potential consequences in mind (Silverstein v. Metropolitan Life Ins. Co., supra). That condition must have -been slight in plaintiff’s case since he had none of the symptoms before the accident. At the worst, the jury were authorized to find upon the evidence that the condition of plaintiff’s arteries at the time of the accident was merely a predisposing tendency which, as a consequence of the accident, ripened into a thrombosis (Silverstein v. Metropolitan Life Ins. Co., supra; Preferred Accident Ins. Co. of New York v. Combs, 76 F. 2d 775; Lewis v. Ocean Acc. & G. Corp., supra; Schwartz v. Commercial Travelers Mutual Accident Association, 254 N. Y. 523; Miller v. Fidelity & Casualty Co., 97 Fed. 836; Ætna Life Ins. Co. v. Young, 113 F. 2d 601, 602). In those circumstances, “ there may he a recovery even though the accident would not have caused that effect upon a healthy person in a normal state ” (Leland v. United Com’l Travelers of America, 233 Mass. 558, 564). There is no evidence in the case that the condition of plaintiff’s arteries was abnormal for a man of his age, or that the condition of his arteries, whatever it was, caused him any trouble prior to the accident or that he was even aware of it.

We have examined the exceptions to the charge and the exceptions to the refusal of the court to charge as requested and we find no errors raising any substantial question for our consideration. After stating in detail and generally the rules for construction to which we have referred above, the court correctly submitted to the jury that, within those rules, the plaintiff was required to show that he was “ wholly and totally disabled from performing any and every duty pertaining to his occupation as a physician and surgeon, and that such condicaused by an accident” before he was entitled to recover.

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.

LehmaN, Ch. J., Lewis, Desmond and Thacheb, JJ., concur.

Judgment accordingly.


author: Eippey, J.

text:
    Argued February 29, 1944;
    decided April 20, 1944.

      Richard Steel for appellant.
    In the absence of fraud or duress the court was powerless to set aside an equitable settlement of the rights of the parties made in good faith. (Heflin v. Heflin, 177 Mise. 290, 263 App. Div. 714; Fox v. Fox, 263 N. Y. 68; Levy v. Dochenclorff, 177 App. Div. 249 ; 0ray v. Gray, 149 Mise. 273; Ostrin v. Posner, 127 Mise. 313; People v. Schenkel, 258 N. Y. 224; Matter of Estate of Ensign, 103 N. Y. 284; Smith v. Smith, 11 Jones & Sp. 140; Greenfield v. Greenfield, 161 App. Div. 573; Van Ness v. Ransom, 164 App. Div. 483; Parsons v. Macfarlane, 220 N. Y. 605; Matter of Pet. of N. Y., L. & W. R. R., 98 Y. 447; Civ. Prae. Act § 1170.)

      Marcus Klein and Benjamin A. Hartstein for respondent.
    I. The same principle of public policy which renders unenforci-ble a contract relieving a husband from his liability to support his wife, during marriage, applies to such a contract made after a divorce because of the husband’s misconduct. (.Salmon v. Salmon, 236 App. Div. 678, 261 N. Y. 646; Sleicher v. Sleicher, 251 N. Y. 366; Baskin & Go., Inc., v. Howe, 225 App. Div. 553; Romaine v. Ghauncey et al., 129 N. Y. 566; Domestic Eelations Law § 51; Wetmore v. Wetmore, 149 N. Y. 520; Matter of Williams, 208 N. Y. 32; Fox v. Fox, 263 N. Y. 68; Wetmore v. Markoe, 196 U. S. 68; Winter v. Winter, 191 N. Y. 462; Hamlin v. Hamlin, 129 Mise. 263, 223 App. Div. 810.) II. No vested rights of defendant have been violated by setting aside the contract between defendant and his former wife. (Querze v. Querze, 290 N. Y. 13; Fox v. Fox, 263 N. Y. 68; Winter v. Winter, 191 N. Y. 462; Schmelzel v. Schmelzel, 287 N. Y. 21; Grissler v. Grissler, 209 App. Div. 480; DeRohertis v. DeRobertis, 261 App. Div. 476.)
   Eippey, J.

The parties to this action were married on May 1, 1923. There is no issue of the marriage. In May, 1934, plaintiff commenced an action against the defendant in this State for an absolute divorce and, in due course, procured an interlocutory decree on January 15, 1936, in which the defendant was directed to pay to the plaintiff the sum of thirty-five dollars per week for her support and maintenance. The interlocutory decree became final on April 15, 1936 (Civ. Prac. Act, § 1176).

The alimony payments as directed by the decree were paid until the summer of 1939, when defendant fell in arrears and plaintiff thereupon moved in the divorce action to punish him for- contempt of court for his failure to pay alimony in the sum of $245. An issue having been created as to defendant’s ability to pay, a reference was had and during the proceedings before the referee plaintiff and defendant entered into a contract whereby it was agreed that defendant would pay and plaintiff would accept the sum of $7,500 “ in full satisfaction for all alimony and support, past, present and future, due under the decree of said court, dated the 15th day of January, 1936, and also ⅜ ⅜ * in full satisfaction for all alimony, counsel fee, disbursements, costs, expenses and other claims ” of the plaintiff against defendant for the remainder of her life.” For that consideration plaintiff also released any claim for dower. She asserted that she had full knowledge of the defendant’s financial situation and she covenanted that she would make “ no further demands ” on the defendant “ for support whatsoever or any demand upon his family.” Simultaneously with the execution of the agreement, plaintiff executed a stipulation authorizing the amendment of the interlocutory decree and she also gave general releases running to the defendant and to his brother, William T. Hoops, who had furnished the money for the settlement. In accordance with the stipulation, the interlocutory judgment of divorce was amended so as to relieve the defendant from any further obligation for support and maintenance.

By 1941, the money paid as consideration for the settlement agreement had disappeared and plaintiff commenced this action in equity to set aside the settlement agreement in its entirety and the releases which she had executed and delivered and to strike from the judgment of divorce the provision that had been entered relieving defendant from the payment of alimony and to insert therein in place thereof a provision for payment of thirty-five dollars per week. The action went to trial and resulted in a decree by which the entire agreement and the releases were set aside. A direction was made striking from the final decree of divorce that provision which relieved the defendant from further payment of alimony and the decree was directed to be amended so as to reinstate the alimony pro-yision as it existed in the original decree. Upon appeal, the Appellate Division modified the judgment so as to leave the settlement agreement in effect insofar as dower was concerned. There was no allegation by plaintiff in her pleading nor was there any evidence that the agreement was procured by the defendant by fraud, duress or undue influence or misrepresentations of any kind or that there was overreaching or that the plaintiff did not fully understand the nature and purport of the agreement, and she testified that she was told by her attorney at the time of the negotiations that the execution of the agreement by her would forever bar her from securing any further payments for support and maintenance from her former husband. The agreement was fully executed and was based upon adequate consideration. In those circumstances, if the plaintiff was competent to make the contract, the complaint should have been dismissed.

The lower courts have relied upon the provisions of section 51 of the Domestic Relations Law in awarding the decree herein. That section provides, among other things, that “ a husband and wife cannot contract to alter or dissolve the marriage or to relieve the husband from his liability to support his wife.” That section relates only to such agreements made between husband and wife while that status exists (Heflin v. Heflin, 177 Misc. 290, affd. 263 App. Div. 714). It does not relate to contracts made between a man and a woman, although formerly married, where an absolute divorce has been granted between the parties. An absolute divorce decree by a court of competent jurisdiction puts an end to the relation of husband and wife (Fox v. Fox, 263 N. Y. 68). So far as section 51 of the Domestic Relations Law is concerned,, it furnishes no basis, by virtue of its terms alone, for the action at bar.

The Legislature has, by separate act, provided a remedy for support and maintenance for the wife who has succeeded in an action for absolute divorce in a proper case (Civ. Prac. Act, § 1170). By the provisions of that section, the court, at any time after final judgment, may annul, vary, modify or amend a. final judgment for the support of such a plaintiff (Fox v. Fox, supra). Jurisdiction over the matrimonial relation and its ultimate consequences exists only by virtue of statute (Waddey v. Waddey, 290 N. Y. 251, 253). When that statute additionally provides the procedure by which and the court proceeding in which the remedy of one who has a grievance must be pursued, where such a remedy did not formerly exist, all other procedure and remedies are thereby excluded for the settlement of such, a grievance (Matter of Meng, 227 N. Y. 264, 273, 277).

If plaintiff seeks further support and maintenance from the defendant, she must find her remedy exclusively in the court and in the proceeding designated in section 1170 of the Civil Practice Act. The right to support after divorce is defined and limited by the final decree of divorce. The effect of the foregoing statute is to write into every final decree of divorce to which the statute is applicable a reservation of a right to annul, vary or modify or to insert any provision for support and maintenance. The jurisdiction of the court over the parties and over the incidental subject-matter is prolonged; and to that extent the action may be said to be pending within the meaning and intent of section 1169 of the Civil Practice Act ” (Fox v. Fox, supra, p. 70). Since this divorce action is still “ pending ” for the purposes indicated, no independent action in equity can he maintained for the relief which plaintiff seeks.

The judgments so far as appealed from should he reversed and the complaint dismissed, without costs.

Lehman, Ch. J., Loughran, Lewis, CoNwat, DesmoND and Thacher, JJ., concur.

Judgment accordingly.


author: LehmaN, Ch. J.

text:
    Alexander J. Ross, Appellant, Francis Preston et al., as Administrators with the Will Annexed of the Estate of William; H. Schmidt, Deceased, Respondents.
    Decided April 20, 1944.
    Argued April 10, 1944;
    decided. April 20, 1944.

      J. Norman Crannage for appellant.
    I. Appellant has a remedy at law for damages resulting from the loss sustained by him- in consequence of the fraudulent agreement. (Ochs v. Woods, 221 N. T. 335; Vail v. Reynolds, 118 N. Y. 297; Weigel v. 237 N. Y. 136; Sager v. Freidman, 270 N. Y. 472; Reno v. Bull, 226 N. Y. 546.) II. The existence of the decree of the Surrogate’s Court admitting the will to probate is not a bar to this action. v. Van Burén et al., 76 N. Y. 247; Adams v. Clark, 239 N. Y. 403; Sielcken-Schwarz v. American Factors, Ltd., 265 N. Y. 239.)

      Alan M. Stroock and Francis Preston for respondents.
    I. The judgment dismissing the complaint must be affirmed since the probate decree, which is not attacked directly, bars proof by the plaintiff that the will was invalid and without snch proof the plaintiff is nnable to show that he suffered any damage. (Urts v. N. 7. G. & H. R. R. R. Co., 202 N. Y. 170; Reich v. Cochran, 151 N. Y. 122; Crouse v. McVickar, 207 N. Y. 213; Matter of Horton, 217 N. Y. 363; Schuylkill Fuel Corp. v. Hei-berg Realty Corp., 250 N. Y. 304; Noll v. Ruprecht, 282 N. Y. 598; Gould v. Cayuga County National Bank et al., 86 N. Y. 75; Anderson v. Smitley, 141 App. Div. 421; Merry Realty Co. v. Shamokin & Hollis R. E. Co., 230 N. Y. 316; White v. Merritt, 7 N. Y. 352; Farrington v. Bullard, 40 Barb. 512; Scopano v. United States Gypsum Company, 166 Mise. 805; Smith v. Letuis, 3 Johns. 157; United States v. Throckmorton, 98 U. S. 61.) II. The decision in Verplanck v. Van Burén (76 N. Y. 247) has no relevance to the present complaint and affords no authority for sustaining the cause of action alleged by the plaintiff. (Dalury v. Resinas, 183 App. Div. 456, 229 N. Y. 513; Harvey v. Comby, 245 App. Div. 318; Silverman v. Doran, 23 Mise. 96.)
   LehmaN, Ch. J.

The plaintiff seeks damages which he asserts resulted from the fraud of William H. Schmidt, the defendants’ intestate, hereinafter for brevity referred to as the defendant. The complaint was dismissed upon the defendant’s motion on the ground that it does not state facts sufficient to constitute a cause of action. Prom the complaint it appears that plaintiff, in 1935, filed formal objections to the probate of a paper writing which purported to be the last will and testament of Edward C. S. Fleet upon the “ grounds that said decedent was under undue influence and lacked testamentary capacity ”. The plaintiff was the sole heir and next of kin of the decedent. The defendant is the person named * as executor and sole beneficiary ” in the paper writing. The plaintiff and the defendant entered into an agreement “ by the terms of which, in consideration of the payment by the said William H. Schmidt to the plaintiff of the sum of Five thousand five hundred ($5,500.00) dollars, plaintiff agreed to withdraw his objections and consent that the said purported Will be admitted to probate.” Pursuant to the agreement the plaintiff executed a stipulation withdrawing his objections and consented to the probate of the will. The will was admitted to probate and the plaintiff executed a general release to the defendant and received the stipulated consideration. _

The plaintiff, it is said, was induced to withdraw his objections to the probate by fraudulent representations of the defendant “ that the estate # * * was comparatively small and that the value thereof did not exceed the sum of Twenty-five thousand ($25,000.00) dollars, and that in view of the amount involved, it would be advisable and more practical for the plaintiff to withdraw his objections to the probate and accept a settlement, rather than to continue his contest to the probate of said Will. ’ ’ The value of the estate was, it is said, approximately $372,000 and the defendant fraudulently misrepresented the value in order to induce the plaintiff to withdraw his objections to the probate of the will.

The plaintiff, we assume, could, because of these fraudulent misrepresentations, rescind the agreement to consent to a decree of probate or bring an action for rescission. He would then, however, be obliged to return the consideration he has received and would gain no advantage unless the probate proceedings are reopened and he receives permission, belatedly, to interpose objections to the probate of the will of the decedent and can sustain his objections in the probate proceeding. The plaintiff prefers to retain the consideration paid to him and to affirm the agreement, asking in this action for damages caused to him by the defendant’s fraud which induced him to make the agreement. Those damages are the value of the right, which he relinquished, to interpose objections to the probate of the paper writing purporting to be the decedent’s will. (Reno v. Bull, 226 N. Y. 546; Sager v. Friedman, 270 N. Y. 472.) Injury is an essential element of a cause of action for damages resulting from fraud. (Ochs v. Woods, 221 N. Y. 335.) The plaintiff has suffered no injury'unless the value of the right to contest the probate of the will, which the plaintiff gave up in return for $5,500 was worth more than that amount. Unless the plaintiff can prove that the decedent in truth lacked testamentary capacity or acted under undue influence, the value of the right to contest the probate would be only speculative and the plaintiff would fail to establish any cause of action. (Urtz v. N. Y. C. & H. R. R. R. Co., 202 N. Y. 170.) An earlier complaint of the plaintiff was dismissed because the( complaint failed to allege the validity of some one or more of the objections sufficient to affect the ¿y_alidityAof the will ’ ’ ^and because “ the decree of Surrogate’s Court admitting the will to probate would in any event preclude the plaintiff from making such proof in this action.” (Ross v. Fida, 265 App. Div. 586.)

Where a wrongdoer fraudulently conceals his wrong from the injured person who agrees, in ignorance of the wrong, to a settlement of the accounts of the wrongdoer and the entry of a judgment or judicial decree in accordance with the agreement, the decree does not defeat an action for damages resulting from the fraud, or preclude the injured party from proving that the settlement of the accounts was induced by fraud. (Verplanck v. Van Buren et al., 76 N. Y. 247; Gould v. Cayuga Co. Nat’l B’k et al., 99 N. Y. 333.) In those cases the fraud consisted of fraudulent “ concoction ” of fictitious contracts; of “ false entries in hooks,” of false statements by a banker that bonds were stolen while in its possession though, in fact, they were converted by the banker. In each case these were the “ chief bases of the cause of action.” The entry of judgment merely was an incident of the frauds which had been perpetrated outside of the former actions and the reason why the judgment settling the accounts did not preclude proof of the antecedent fraud is that the trial and judgment was only a step in the consummation of the antecedent (Verplanck v. Van Buren, supra, at pp. 260-261.)

Here, on the contrary, there fraud outside of the probate proceeding. The plaintiff pleads that the settlement was procured to prevent a discovery by plaintiff # ⅝ * of all the true facts as to lack of testamentary capacity and of undue influence ”. There is no allegation in the complaint that the defendant misrepresented the true facts or that he induced the plaintiff to compromise a claim for less than its value or that the court made a decree in accordance with a compromise. The action is solely for damages caused by an agreement to withdraw his objections and to consent to an adjudication that the will propounded by the defendant was valid. The plaintiff cannot affirm that agreement, retain the consideration received upon it and, at the same time, assert that the will which has been probated is not the act of the testator. He was paid the stipulated price for his admission that the was valid. If no decree had been entered in accordance with the agreement he could not have opposed probate unless he had rescinded his agreement. He cannot affirm his agreement to withdraw his objections and to consent to the entry of a decree and, at the same time, urge that he could sustain those objections and that the adjudication that the will is valid, to which he consented for a price which he retains, is not binding upon the parties to the decree.

The judgment should be affirmed, with costs.

Lotjghban, Lewis, Conway, Desmond and JJ„, concur ; Rippey, J., taking no part.

Judgment affirmed.