text:
    Katherine Spector et al., Appellants, v. News Syndicate Co., Inc., et al., Respondents.
    Argued April 3, 1939;
    decided May 23, 1939.

      Paul A. Berlowitz for appellants.
    The article is libelous per se. (Klumph v. Dunn, 66 Penn. St. 141; Gates v. New York Recorder Co., 155 N. Y. 228; Sydney v. Macfadden

      Newspaper Pub. Corp., 242 N. Y. 208; Mooney v. New York Pub. Co., 48 App. Div. 271: Sullivan v. Daily Mirror, Inc., 232 App. Div. 507; Janson v. Stewart, 1 Term, 784; Pollard v. Lyon, 91 U. S. 225; Moffatt v. Cauldwell, 3 Hun, 26; Yousoupoff v. Metro-Goldwyn-Mayer Pictures, Ltd., 50 Times Law Rep. 581; Ralston v. Ralston, [1930] 2 K. B. 238; Cassidy v. Daily Mirror Newspapers, Ltd., [1929] 2 K. B. 331; Chattel v. Daily Mail, 18 Times Law Rep. 165; Ben-Oliel v. Press Pub. Co., 251 N. Y. 250.) The complaint is sufficient without allegation of special damage. (Gates v. New York Recorder Co., 155 N. Y. 228; Sydney v. Macfadden Pub. Corp., 242 N. Y. 208; O’Connell v. Press Pub. Co., 214 N. Y. 352; Van Ingen v. Mail & Express Pub. Co., 156 N. Y. 376; Upton v. Times Democrat, 104 La. 141; Flood v. News & Courier Co., 71 S. C. 112.)

      Stuart N. Updike and James W. Rodgers for respondents.
    The absence of special damage renders the complaint insufficient. (McNamara v. Goldan, 194 N. Y. 315; Kuhn v. Veloz, 252 App. Div. 515; Woodruff v. Bradstreet Co., 116 N. Y. 217; O’Connell v. Press Pub. Co., 214 N. Y. 352: Tower v. Crosby, 214 App. Div. 392; Sydney v. Macfadden Newspaper Pub. Corp., 242 N. Y. 208.) The article is not libelous per se. (Caldwell v. Raymond, 2 Abb. Pr. 193: Cannon v. Bee News Pub. Co., 8 Fed. Supp. 154; Morse v. Press Pub. Co., 49 App. Div. 375; Kimmerle v. N. Y. Evening Journal, Inc., 262 N. Y. 99.)
   Per Curiam.

This is an action for libel and for loss of services based upon an article published by the defendants concerning one Katherine Spector. Suit was instituted by Katherine Spector and by her mother, Sarah Spector, who sought damages for the loss of her daughter’s services and society from the time of publication until the daughter reached her majority. Defendants’ motion to dismiss the amended complaint for insufficiency was granted at Special Term and the order of dismissal was affirmed by the Appellate Division,' first department, with one justice dissenting, and the following questions have been certified:

1. Does the amended complaint in the above-entitled action state facts sufficient to constitute a cause of action on behalf of plaintiff, Katherine Spector, against defendant, News Syndicate Co., Inc., a corporation trading as 1 Daily News? ’
2. Does the amended complaint in the above-entitled action state facts sufficient to constitute a cause of action on behalf of plaintiff, Katherine Spector, against defendant, Ed. Sullivan?
“ 3. Does the amended complaint in the above-entitled action state facts sufficient to constitute a cause of action on" behalf of plaintiff, Sarah Spector, against defendant, News Syndicate Co., Inc., a corporation trading as 1 Daily News? >
“ 4. Does the amended complaint in the above-entitled action state facts sufficient -to constitute a cause of action on behalf of plaintiff, Sarah Spector, against defendant, Ed. Sullivan? ”
Katherine Spector, a young, unmarried woman, was a dancer who entered a beauty contest in 1933 at Bayonne, N. J., and won the contest. Thereafter the defendant News Syndicate Co., Inc., publishers of the Daily News, a newspaper having a wide circulation throughout New York and New Jersey, published in that paper the following article written by the defendant Ed. Sullivan:
“ BROADWAY
by
“Ed. Sullivan
BEAUTY CONTEST
“ Too often, beauty contest and bathing beauty pageants bring about situations that are unpleasant. City editors, for instance, might look into the aftermath of the recent Queen Esther contest, in which nineteen-year-old Katherine Spector was adjudged most beautiful of the Jewish girls of the country.
“ What hasn’t been brought out is that Katherine Spector was married secretly in August, 1931, at Newark, to William Shemin, young Bayonne, N. J., attorney." They were completely happy until the Queen Esther contest. Shemin was delighted, as any youngster might be. He okayed a fat Hollywood contract for his bride.
“ On Saturday night, Katherine Spector leaves ‘ Music in the Air.’ Not to accept the Hollywood contract, but to leave her young husband for the long trip to Palestine. The Shemins, in other words, have Called it a Day.”

We reach the conclusion that the article is libelous per se. (Cf. Sydney v. Macfadden Newspaper Pub. Corp., 242 N. Y. 208.)

The orders appealed from should be reversed, with costs in all courts, and the motion denied, with ten dollars costs.

All questions certified are answered in the affirmative. Crane, Ch. J., Lehman, O’Brien, Hubbs, Loughran, Finch and Rippey, JJ., concur.

Ordered accordingly.


source: Caselaw Access Project

author: Finch, J.

license: Public Domain

text:
    In the Matter of the Application of Ruth F. Bock, Respondent. Hans Breitung, Appellant.

      Argued April 3, 1939;
    decided May 23, 1939.

      Edmond M. Hanrahan and Edward A. Silliere for appellant.
    The so-called paramount right of the parent does not prevail over the welfare and best interests of the infants.
      (Matter of Cross, 92 Misc. Rep. 89; Matter of Munn, 101 Misc. Rep. 171; Matter of Meyer, 156 App. Div. 174; Osterhoudt v. Osterhoudt, 48 App. Div. 74; 168 N. Y. 358; Matter of Lamb, 193 N. Y. Supp. 685.) The wishes of the children and their sex should be considered by the court in appointing a guardian. (Israel v. Israel, 38 Misc. Rep. 335; Matter of Burdick, 41 Misc. Rep. 346; Osterhoudt v. Ousterhoudt, 48 App. Div. 74; 168 N. Y. 368.)

      Arthur Frank for respondent.
    The mother’s rights to the custody of her children taken away by the divorce decree were restored against the world upon the father’s death. She thereupon became entitled to guardianship unless the respondent showed anew that she is an unfit person. This he failed to do, and the Surrogate expressly found that the mother was fit. (Matter of Thorne, 240 N. Y. 444; People ex rel. Boulware v. Martens, 232 App. Div. 258; 258 N. Y. 534.) The decree below by awarding guardianship to the mother follows the settled view that the child’s welfare rests in retaining parental control during its minority. (Matter of Warger, 153 Misc. Rep. 236; Matter of Lamb, 139 N. Y. Supp. 685; Matter of Tully, 54 Misc. Rep. 184; Matter of Thorne, 126 Misc. Rep. 96; 240 N. Y. 444; People v. Mt. St. Joseph’s Academy, 198 App. Div. 75; 234 N. Y. 565; Matter of Munn, 101 Misc. Rep. 171; Wilcox v. Wilcox, 14 N. Y. 575; People ex rel. Elder v. Elder, 98 App. Div. 244.)
   Finch, J.

The question presented upon this appeal is whether the Surrogate may appoint a brother of the decedent guardian of the person of three sons, aged fifteen, thirteen and eleven, as against the application of the natural mother of these infants, under the facts presented upon this application.

Max Breitung and his wife, Ruth, had three sons. In February, 1933, the father instituted a divorce action in Connecticut, and in that action sought custody of the three infant childreri. The defendant defaulted and a decree of divorce was awarded, including custody of the three children, to the father, with an option for custody in the mother during the summer months. About four months later Mrs. Breitung was married to Douglas S. Bock, who had been a neighbor prior to the institution of the divorce proceeding. Mr. Breitung arranged for his three sons to spend the summers of 1935, 1936 and 1937 in the household of Frederick Van Name upon his farm in Maine. In June, 1936, Mr. Van Name also agreed to take the boys for the following two winters into his household in Bronxville, New York. Mr. Van Name had two boys of his own and the five children have attended the same school in Bronxville. Mrs. Van Name was dead and Mr. Breitung joined with Mr. Van Name in selecting a housekeeper for the home in Bronxville.

On August 19, 1937, Mr. Breitung died. He left a will intrusting the care, education and upbringing of the three children to Hans Breitung, his brother. Insurance policies upon his life produced an annual income for their benefit. At the time of the death of their father the children were in Maine, still in the household of Mr. Van Name. They had, therefore, not been with their mother since the divorce in 1933, or for a period of approximately four years. Almost immediately following the death of Mr. Breitung, Mrs. Bock went to Maine and, apparently then for the first time, requested the boys to come and live with her at Port Jefferson. They each refused in turn, and Mrs. Bock returned alone to Port Jefferson. While the children were with Mr. Van Name, both in Maine and in Bronxville, Mr. Breitung visited them, sometimes every day. The uncle, Hans Breitung, intends to move to Bronxville and establish there a home for the boys as members of his household. The Breitung boys prefer to remain in the care and custody of their uncle, Hans Breitung, rather than in the care of their mother, and possess a decided aversion to entering the home of their mother and stepfather.

At Surrogate’s Court guardianship of both persons and property was awarded to the uncle. Upon appeal guardianship of the person was awarded to the mother. The Appellate Division based its modification of the decree of the Surrogate’s Court in denying guardianship of the person to the paternal uncle and awarding such guardianship to Mrs. Bock, upon the paramount right of the surviving parent to the guardianship of the person, citing section 81 of the Domestic Relations Law (Cons. Laws, ch. 14) and Matter of Thorne (240 N. Y. 444). But in Matter of Stuart (280 N. Y. 245) we held that section 81 of the Domestic Relations Law was not a bar to the appointment by the Surrogate in a proper case of one, other than a parent, as guardian, of an infant over fourteen years. Also, there we pointed out that Matter of Thorne (240 N. Y. 444) involved the guardianship of infants under fourteen years of age. In the case at bar one of the infants was well over fourteen and another almost that age. The status of the two approximately fourteen must determine the status of all, as the three brothers, having lived together all their lives, cannot now be separated without disregarding their best welfare. While it is true that, prima facie, a surviving parent has a right to the guardianship of the children, particularly when they are of tender age, yet under all the circumstances the chief consideration must always be what will promote the best welfare of the children. While the circumstances of a particular case must be strong in order to overcome the so-called paramount right of the parent, yet where the circumstances of a particular case contain such evidence, the best interest of the infants must be the guiding principle. The surroundings and associations of the young have so great an effect upon their outlook and so form the basis of their future development that nothing should prevent the courts from considering the human aspects of the question presented.

In the case at bar it appears that, owing to the divorce between the parents and the ^remarriage of the mother, the children have been separated from the mother almost completely for about four years. The oldest child, who testified, exhibited a feeling of antagonism and a distinct aversion to his mother and stepfather. This can be gleaned even from a reading of his printed testimony. The Sum> gate examined in private the other two children to learn their wishes. To force these children into an environment to which they are so strongly opposed in any event would be unpleasant and might be attended by very serious results to their development. Then, too, there is the breakup in the continuity of the schooling which they have had in Bronxville. In order to avoid this break their paternal uncle is willing to change his home to Bronxville.

We reach the conclusion, therefore, that the Surrogate was not without power to appoint the paternal uncle, Hans Breitung, guardian of the person as well as of the property, even though no fault or moral turpitude was shown on the part of the mother.

The order of the Appellate Division should be reversed and the decree of theJSurrogate’s Court affirmed, without costs.

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

Ordered accordingly.


author: Crane, Ch. J.

text:
    In the Matter of President Self Service, Inc., Respondent, against Affiliated Restaurateurs, Inc., et al., Appellants.

      Argued April 4, 1939;
    decided May 23, 1939.

      Louis Shapiro and Joseph G. Gubman for Affiliated Restaurateurs, Inc., et al., appellants.
    A bona fide controversy or dispute exists between the parties. (Matter of Wenger & Co. v. Propper Silk Hosiery Mills, Inc., 239 N. Y. 199.) The parties have contracted to submit the dispute or controversy to arbitration. (Itoh & Co. v. Boyer Oil Co., 198 App. Div. 881.) The dispute or controversy is subject to arbitration.

      Louis B. Boudin for Cafeteria Employees Union, Local No. 302, appellant.
    The Appellate Division was in error as to the nature of the proceeding as well as to the nature of the questions before it. (Matter of Marchant v. Mead-Morrison Mfg. Co., 252 N. Y. 284; Ranter v. Blum Co., 144 Misc. Rep. 602.) An arbitrable question exists. (Matter of Kelley, 240 N. Y. 74.) The order appealed from is one which finally determines a special proceeding within the meaning of section 588 of the Civil Practice Act, and is appealable as of right. (Matter of Red Cross Line v. Atlantic Fruit Co., 233 N. Y. 373; Matter of Hosiery Mfg. Corp. v. v. Goldston, 238 N. Y. 22; Matter of Marchant v. Mead-Morrison Mfg. Co., 252 N. Y. 284; Van Arsdale v. King, 155 N. Y. 325.)

      Allan R. Campbell, Frank R. Bruce and Julius J. Rosenberg for respondent.
    The Appellate Division rightly held that the Cortlandt Cafeteria was not touched by the union contract. (Pullman’s Palace Car Co. v. Missouri Pacific Co., 115 U. S. 587; Peterson v. Chicago Ry. Co., 205 U. S. 364; Berkey v. Third Ave. Ry. Co., 244 N. Y. 84; Elenkrieg v. Siebrecht, 238 N. Y. 254.) The contract, properly construed, does not authorize arbitration. (Matter of Lehman v. Ostrovsky, 264 N. Y. 130; Matter of Kelley, 240 N. Y. 74; Matter of General Silk Importing Co., 200 App. Div. 786; 234 N. Y. 513; Fleischman v. Furgueson, 223 N. Y. 235; Matter of Marchant v. Mead-Morrison Mfg. Co., 252 N. Y. 284; Industrial & General Trust, Ltd., v. Tod, 180 N. Y. 215; Ayers v. Order of United Workmen, 188 N. Y. 280; Steuernagel v. Supreme Council of R. A., 234 N. Y. 251.)
   Crane, Ch. J.

President Self Service, Inc., is a New York corporation owning and operating a cafeteria at 110 West Forty-second street, Manhattan, known under the trade name of 42nd Street Cafeteria.” Cortlandt Cafeteria, Inc., is a New York corporation operating a cafeteria at 20 Cortlandt street, Manhattan, known as Cortlandt Cafeteria.” It is claimed that the stockholdings of President Self Service, Inc., and of the Cortlandt Cafeteria, Inc., are substantially the same; that at least eighty per cent of the stock is held by the same parties in both corporations; that the directors are substantially the same; and that the operation of both stores is under interlocking management. The petitioner herein denies part of this claim, but admits that five stockholders of the petitioner are stockholders of the Cortlandt and that there is only one other stockholder of Cortlandt, owning one-sixth of the stock. There are five directors in each corporation. Four of these directors are the same in each corporation. There are four officers of each corporation — president, vice-president, treasurer and secretary. Two of the officers of the petitioner are also officers of the Cortlandt.

Affiliated Restaurateurs, Inc., is an association of employers engaged in the business of conducting cafeterias. It is referred to throughout this case as “ the association.” On or about April 26, 1938, this association entered into a collective agreement with the respondent Cafeteria Employees Union Local No. 302, to which agreement President Self Service, Inc., together with other members of the association, was and is a party. This proceeding arises out of an interpretation of this agreement. Apparently the petitioner President Self Service, Inc., employs union labor. Cortlandt Cafeteria, Inc., does not. The association and the Union Local No. 302 insist that the petitioner controls Cortlandt Cafeteria and that the agreement extends to it. The petitioner insists that the agreement binds the 42nd Street Cafeteria but does not cover the Cortlandt Cafeteria. This dispute the association and the union desire to .submit to arbitration and have taken steps accordingly. The petitioner has sought an injunction to restrain such action, and the Appellate Division, by a divided court, has granted the motion upon the ground that the affidavits do not show that the Cortlandt Cafeteria is owned, operated and controlled, directly or indirectly, by the respondent.

The question presented on this appeal is not whether such be the fact but whether this dispute or disagreement regarding such ownership or control is one which should be submitted to arbitration and for the arbiters to decide, not the courts. We, therefore, turn to the agreement which, like every other agreement or contract, is supposed to be binding upon the parties. In other words, has the petitioner agreed with the association and the union that any dispute arising as to ownership or control “ directly or indirectly ” shall be submitted to arbitration? The wording of the agreement settles the question.

The agreement is dated the 26th day of April, 1938, between Affiliated Restaurateurs, Inc., and Cafeteria Employees Union Local No. 302, to which agreement the petitioner alleges that it is a party. Paragraph “ 2 ” thereof reads as follows:

“2. It is hereby agreed that no Employer who is a member of the Association shall employ in any Cafeteria establishment owned, operated or controlled, directly or indirectly, by said Employer, any but union members in good standing. And it is further agreed that the only persons who shall be permitted to work in any of the crafts enumerated herein are to be Union members in good standing. * * *.
“ 3. There shall be no strike or lockout during the life of this contract except for the failure of either party or an Employer to obey the decision of the Board of Adjustment as hereinafter more specifically provided for.”

The hours and conditions of work, the manner of dress, the time for meals and the quality of food furnished employees and the classification of skilled and unskilled workers, the proceedings relating to absence and discharge and other details are all provided for in this agreement. A Board of Adjustment is to settle disputes arising out of this agreement. Paragraph “ 13,” subdivisions (a) and (b), reads as follows:

(a) The Board of Adjustment shall consist of two representatives of the Union and two representatives of the Association. If they cannot agree then they shall choose a fifth and impartial person to act as chairman of the said Board of Adjustment. If they cannot agree as to who the fifth person shall be, then the State Board of Mediation shall be called upon to appoint such an impartial chairman and such appointment shall be binding upon the parties hereto. If the said Board of Adjustment, including the impartial chairman, by a majority vote shall find that the worker was unjustly discharged, he shall be reinstated with or without pay as the Board may find proper in the circumstances. It is the intention of the parties hereto that the entire machinery of adjustment be set in motion as soon as is possible, so that the discharged employee will not suffer by any delay and for that purpose it is hereby agreed as follows:
(b) That the Association shall within twenty-four (24) hours after receipt of notice by it from the Union that the employee challenges the discharge cause the Board of Adjustment to meet, and that at such meeting if they cannot agree between themselves and/or if they cannot agree as to the fifth and impartial chairman, then the State Board of Mediation shall be notified and a hearing shall be held by the Board of Adjustment on the entire matter as soon as possible. If any member of the Board of Adjustment is unable to attend the meeting he may be substituted by another person designated by the party to be represented and a statement by the other member of the Board of Adjustment representing the same party, that such substitution has been had, shall be sufficient for the purpose. The Board of Adjustment shall decide any disputes that may arise under the terms of this agreement. The Board of Adjustment shall keep records of the cases that come before it and each party shall be entitled to have in its own files a copy of the records of the Board.” (Italics mine.)

That the jurisdiction of this Board is not limited to the matters specified in section “ 13,” relating to discharge of employees, is quite evident from the fact that other portions of the agreement, such as paragraph “ 17,” refer the matter of wage increase to this Board, together with the circulation of any black list by paragraph “22,” or the proper size of a crew for Saturdays, Sundays and holidays, referred to in paragraph “ 25.” We read paragraph “ 13,” subdivision (b), as referring to any disputes arising out of the terms of any part of the agreement. The words directly in point found there are these: “The Board of Adjustment shall decide any disputes that may arise under the terms of this agreement.”

The petitioner admits that the paragraph requiring the employment of union labor is binding upon it and the “ 42nd Street Cafeteria.” It impliedly admits, and in fact must concede, that this paragraph is also binding upon the Cortlandt Street Cafeteria if it be “ owned, operated or controlled, directly or indirectly ” by the petitioner President Self Service, Inc. Does the petitioner, directly or. indirectly, own or control or operate the Cortlandt Street Cafeteria? From the above statement regarding the stockholders, directors and officers of these two corporations a dispute has arisen over this question and the facts indicate that it is a bona fide dispute with some justification for the claims of the association and the union. Whether this be so or not, the agreement provides the machinery and the method for settling this dispute. It must be submitted as provided in the agreement to the Board of Adjustment. If this board does not determine the question fairly or the petitioner is not afforded an ample hearing or anything else of consequence goes wrong, then the petitioner may resort to the courts for relief, which will be afforded in a proper case. The granting of the injunction, therefore, was error.

An objection has been raised that the determination of the Appellate Division is not appealable to this court, reliance being placed upon Matter of Arcadu v. Levinson (250 N. Y. 355). This is not a motion in the arbitration proceeding but is a separate and distinct special proceeding to stay arbitration, and the order is a final order in this proceeding. (See Matter of Marchant v. Meadr-Morrison Manufacturing Co., 252 N. Y. 284, 292; Matter of Hosiery Manufacturers Corp. v. Goldston, 238 N. Y. 22, 25, 26.)

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

The motion to dismiss the appeal on the ground the order is not final should be denied.

Lehman, Hubbs, Loughran, Finch and Rlppey, JJ., concur; O’Brien, J., taking no part.

Ordered accordingly.


text:
    In the Matter of Samuel M. Coombs, Jr., as Receiver of Walker Cement Products Co., Inc., Respondent, against Louis F. Edwards et al., Constituting the Council of the City of Long Beach, Appellants.

      Argued April 5, 1939;
    decided May 23, 1939.

      Bernard H. Reich, Corporation Counsel, for appellants.
    A mandatory order may issue only for an enforcement of a clear, legal right and even after such right has been established the court must determine whether in the exercise of a sound discretion it shall grant or withhold the order. (Matter of Durr v. Paragon Trading Corp., 270 N. Y. 464; People ex rel. Commissioners v. Supervisors, 22 How. 275; People ex rel. Clements v. Williams, 100 Misc. Rep. 569; People ex rel. East Side Harlem S. Assn. v. Hylan, 118 Misc. Rep. 341; 202 App. Div. 745; People ex rel. Breckenridge v. Village of Ocean Beach, 207 App. Div. 821; Matter Burke v. Connolly, 76 Misc. Rep. 342; Matter of Waverly, 35 App. Div. 38; 158 N. Y. 710; Matter of Hart, 159 N. Y. 278; Matter of Black v. O’Brien, 264 N. Y. 272; Matter of Ware-housemen’s Association v. Cosgrove, 241 N. Y. 580.) The circumstances presented to the court at Special Term were adequate to justify it in the exercise of a sound discretion in denying the application for a peremptory order. (East St. Louis v. Amy, 120 U. S. 600; Deere v. Board of County Commis

      sioners, 33 Fed. Rep. 823; United States ex rel. Baer v. City of Key West, 78 Fed. Rep. 88; City of Cleveland v. United States, 166 Fed. Rep. 677; Graham v. Quinlan, 207 Fed. Rep. 268; City of Asbury Park v. Christmas, 78 Fed. Rep. [2d] 1003; County of Nassau v. City of Long Beach, 272 N. Y. 260.) The revision of the Special Term’s discretion was manifestly improvident. (Matter of Dederick, 77 N. Y. 595; People ex rel. D. L. I. Co. v. Jeroloman, 139 N. Y. 14; Matter of Martin, 255 N. Y. 359; People ex rel. Commissioners v. Supervisors, 22 How. 275; People ex rel. Wood v. Assessors, 137 N. Y. 201.)

      Robert Emmet Connolley for respondent.
    The petitioner had a clear legal right to the issuance of a peremptory order requiring the inclusion of his judgment in the city’s budget. (Cons. Laws, ch. 24, §§ 82, 83; Laws of 1922, ch. 635, § 101; Matter of Wingate v. McGoldrick, 279 N. Y. 246; Matter of Rosenthal v. McGoldrick, 279 N. Y. 688; Matter of O’Connell v. Gold, 243 App. Div. 812; Matter of Steinway, 159 N. Y. 250.)
   Finch, J.

This is a proceeding by which one of a number of creditors, whose claims comprise a so-called floating indebtedness, seeks to obtain compulsory payment of his debt ahead of those holding similar claims.

The question presented for decision is whether a mandatory order may be denied on the ground that to grant the order would be preferring this creditor over other creditors of the same class, it not having been shown that there are sufficient funds available at this time, without crippling the city, to pay all the floating indebtedness.

Facts sufficient to show the question raised and the decision are briefly as follows: The petitioner sold building material to the city after 1932, when the city had a large floating debt incurred during the years 1925-1931, which it then appeared impossible for the city to liquidate except by proportionate payments of equal amounts over the course of approximately ten years. Since September, 1932, respondent has been receiving payments on account ■ of the principal of his debt and interest at six per cent. In 1935 the county of Nassau sued the city of Long Beach for taxes collected and due, but not paid, to the county, and recovered a judgment for approximately $430,000. Thereafter this court, exercising discretion as to the manner in which the judgment should be paid, required only that ten per cent be included in each annual budget, beginning in 1936.

Of the petitioner-respondent a receiver was appointed by the Court of Chancery in the State of New Jersey in June, 1932. His duties have been completed except for the collection of this judgment, which was entered in December, 1937. He is anxious to expedite the collection of this debt so that the receivership may be sooner closed.

Since the beginning of this litigation the city has omitted to make the pari passu payments upon this claim.

This is an application for an order to compel performance of an alleged duty. Obviously such order takes the place of the old writ' of mandamus. It is employed only in cases where other remedies fail and the conditions surrounding its use are not found in the ordinary suit at law. The burden is thrown on the applicant for the order to demonstrate the necessity and the propriety of its use. Even then the court may consider by way of defense the hardship and injustice to the defendant, the conduct of the applicant and the interest of third persons. Although the order is classed as a legal remedy, equitable principles largely control its issuance. (Duncan Townsite Co. v. Lane, 245 U. S. 308.) While the applicant must present an issue for the enforcement of a clear legal right, yet even then the court may determine whether, in the exercise of a sound discretion, it shall grant or withhold the order. (Matter of Durr v. Paragon Trading Corp., 270 N. Y. 464.) It may be added that such an order is primarily one resting in the sound discretion of the court, and only where the case presented shows no room for the exercise of a reasonable discretion may it be held, as a matter of law, that there has been an abuse of discretion. While not exclusive, certain recognized cases of inequities present defenses to the issuance of the order. The case at bar comes within such a defense. (Matter of Warehousemen’s Assn. v. Cosgrove, 241 N. Y. 580.)

The circumstances here presented to the court show a small city in financial difficulties and endeavoring to liquidate a large floating indebtedness by including such percentage for payment in its annual budget as will not impose too great hardship upon its taxpayers. The latter are already subject to a tax rate of between four dollars and four dollars and fifty cents per $100 of assessed valuation.

A refusal to issue a mandatory order, except to the extent of spreading a tax levy over several years, has been found a proper exercise of judicial discretion. (County of Nassau v. City of Long Beach, 272 N. Y. 260; East St. Louis v. Amy, 120 U. S. 600, 604.) In the case at bar we not only have an unusual hardship upon the taxpayers unless the tax levy is spread over several years, but, in addition, to permit this petitioner to succeed would be to enforce a preference over other creditors having equal rights. The rights of this receiver are not greater than those of the insolvent corporation of which he is receiver. For both of the above reasons Special Term was justified in the exercise of a reasonable judicial discretion to' deny the enforcement of its judgment by a peremptory order. Any other result would amount to a grave abuse of discretion. (County of Nassau v. City of Long Beach, supra; East St. Louis v. Amy, supra.)

It follows that the order of the Appellate Division should be reversed and that of the Special Term affirmed, with costs in this court and in the Appellate Division.

Crane, Ch. J., Lehman, O’Brien, Hubbs, Lottghran and Rippey, JJ., concur.

Ordered accordingly. ■


text:
    In the Matter of Gennaro Deodati, Respondent, against Paul J. Kern et al., Constituting the Municipal Civil Service Commission of the City of New York, Appellants.

      Argued April 12, 1939;
    decided May 23, 1939.

      William C. Chanler, Corporation Counsel (Robert H. Schaffer and Paxton Blair of counsel), for appellants.
    The provisions of the order that the new filing date shall be advertised for a period of at least two weeks before receipt of applications and that applications received at the time of filing shall be verified are not founded upon any provision of the Civil Service Law (Cons. Laws, ch. 7) and rules, and constitute a substitution by the court of its judgment for that of the Commission intrusted by law with discretion to determine such matters. (Matter of Gluck v. Rice, 265 N. Y. 132.)

      Leopold V. Rossi for respondent.
    The age requirement for the examination is illegal. (Matter of Michner v. Kern, N. Y. L. J. p. 1369, March 25, 1939; Matter of Ryan v. Kern, 166 Misc. Rep. 548; 253 App. Div. 713; 277 N. Y. 739.) An age limitation set by a commission barring persons from competing, participating or registering in a test must be based on reason and logic. (Matter of Ryan v. Kern, 166 Misc. Rep. 548; 253 App. Div. 713; 277 N. Y. 739; People ex rel. Moriarty v. Creelman, 206 N. Y. 570; People v. Moskowitz, 175 App. Div. 710; 220 N. Y. 669; People ex rel. Schau v. McWilliams, 185 N. Y. 92; Matter of Sheridan v. Kern, 255 App. Div. 57.) Respondent has a right to maintain the proceeding. (Matter of Andresen v. Rice, 277 N. Y. 271; Matter of Kornbluth v. Rice, 250 App. Div. 654; 275 N. Y. 597.)
   Finch, J.

This is an appeal by leave of the Appellate Division, first department, from an order entered by that court affirming an order entered at Special Term of the Supreme Court, New York county, directing the Municipal Civil Service Commission of the City of New York to cancel 9,365 applications for the position of porter, labor class, and to readvertise for a period of at least two weeks for new verified applications for the position omitting the maximum age requirements.

The appeal thus concerns the right of the Municipal Civil Service Commission of the City of New York to prescribe maximum age requirements for candidates for the position of porter, labor class, under section 25-a of the Civil Service Law (Cons. Laws, ch. 7; Laws of 1938, ch. 485, effective April 4, 1938), which reads as follows:

“ § 25-a. Applicants for civil service positions; age discrimination prohibited. Notwithstanding any provision of law to the contrary, except as herein provided, neither the state civil service commission nor any municipal civil service commission shall hereafter prohibit, prevent, disqualify or discriminate against any person who is physically and mentally qualified from competing, participating or registering for a civil service competitive or promotional examination, or from qualifying for a position in the classified civil service by reason of his or her age. Any such rule, requirement, resolution or regulation of such state or municipal commission shall be void.
Nothing herein contained, however, shall prevent such state or municipal commission from adopting reasonable minimum or maximum age requirements for positions such as policeman, fireman, prison guard, or other positions which require extraordinary physical effort, except where age limits for such positions are already prescribed by law.”

It appears upon this record that the Municipal Civil Service Commission proceeded with good faith to construe and carry out the intention of the Legislature as to the meaning of the phrase “ extraordinary physical effort.” This good faith was evidenced by the membership of the committee appointed to assist it in the carrying out of its duty. Senator Livingston, who was a co-sponsor of the legislation, was invited and served upon the committee which sought to establish a standard for positions requiring extraordinary physical effort within the purview of the Civil Service Law (§ 25-a). In its memorandum submitted to the Cbmmission, this committee reported that their standard of interpretation of the construction of the bill was strengthened by the legislative history of its enactment. Assemblyman Wadsworth, co-author of the bill, in the course of a debate upon the bill, said: Certainly compared to bookkeepers, librarians, medical inspectors, statistical clerks and so on, the street cleaner employs extraordinary physical effort, but if that language would not cover such positions then I am perfectly willing to amend this bill in such a way that such an interpretation by the civil service commission would be obligatory. Personally, I think the present language covers it.” Accordingly the committee recommended, as a sound formula for interpreting the nature of positions requiring extraordinary physical effort: “ If the amount of the physical effort expended, or subject to be expended in the performance of the duties of a given position is considerably above that expended by bookkeepers, librarians, medical inspectors, and statistical clerks, in the performance of their respective duties, or is comparable to the amount of physical effort expended, or subject to be expended by street cleaners, policemen, firemen, and prison guards, in the performance of their respective duties, then the given position requires extraordinary physical effort.”

In addition, the Civil Service Commission was obliged to certify a list of persons who could perform any and all of the tasks assigned to porters in the public service. A report was made upon the work of porters in the City Housing Authority, where immediate vacancies existed. This report showed that in the service of the city successful candidates would be required to move heavy cans of refuse, heavy supplies and possibly iceboxes. An examination of appointments actually made by this City Housing Authority to provisional jobs as porters showed that the average age of the men employed was in the low thirties, and ranged from twenty-three to forty-three years. A recommendation was made to the Commission that the list for this examination be used as appropriate for similar positions in the Department of Welfare, the Department of Hospitals and other departments, and also for the position of porter in the Department of Public Works and Education. These positions required the performance not only of routine cleaning work but also heavy manual work, and included in this work was the moving of desks, safes, partitions, and also heavy mopping and scrubbing. It further appeared that porters employed by the Housing Authority at the houses in Williamsburg were assigned to do the work of carrying loaded ashcans alcig a runway and up a stairway.

The preliminary announcement of the Commission stated that applicants must file in person, and that appointments would be made in the order of filing of application Since the position was in the labor class there was no competitive examination (Civil Service Law, § 18). The age limit was fixed at under 46 years of age on date of application, under 50 years of age on date of appointment.” During the filing period, from August 31 to September 2, 1938, 9,365 persons filed applications for the position On September 8, 1938, the first 100 who had filed were notified to appear for medical examination. The examinations were made the following day and by September 16th the first 300 to file had been examined. ■

The petitioner-respondent, who was then fifty-one years of age, filed no preliminary application during the time prescribed. He waited until September 9th, after all 9,365 applications had been received and numbered according to priority in filing, and then attacked the entire procedure. As above stated, the court at Special Term canceled the examination and the Appellate Division affirmed, with leave to appeal to this court.

Before taking up the merits, there arises grave doubt whether this petitioner may press successfully this proceeding. The list to which petitioner objects is in the labor class. Here appointments are made in the order of filing applications, after non-competitive examinations. (Civil Service Law, § 18.) By petitioner’s own allegations he knew not later than August 20th that applications were to be received beginning August 31st. As shown in the statement of facts, during the three-day period for the filing of applications, namely, August 31st to September 2d, 9,365 persons filed applications for the position. On September 8, 1938, the first one hundred who filed were notified to appear for medical examination. Although the application blank furnished to candidates required only their name, address and fingerprints, petitioner filed no application and did nothing until he instituted this proceeding on September 9,1938. In other words, petitioner stood by until others had achieved priority and the first one hundred on the list had been examined physically. Having failed to do what he could to enter the list, he is not in a position to attack those who have already acquired rights of priority. Sound public policy and the orderly conduct of civil service examinations require that at least in labor class examinations any person who claims that he has been deprived of his rights by illegal age restrictions must file or attempt to file an application and then seek an adjudication of his rights. When the examination lies in the competitive class the question does not arise for the reason that the court can always stay the examination, permitting the Commission to change the requirements if they are successfully challenged. Authorities relied on by the petitioner are not in point in the case at bar. (Matter of Andresen v. Rice, 277 N. Y. 271; Matter of Kornbluth v. Rice, 250 App. Div. 654; affd., 275 N. Y. 597.) In these authorities it was not within the power of the petitioner to register fully his objections and obtain proper relief without destroying rights of others on an eligible list. In the case at bar, were it not for his loches and delay, petitioner could have enforced his right without invalidating the entire list. The destruction of the prior rights of hundreds of applicants and the issuance of all applications de nova are necessary only because the petitioner failed to establish his place in the order of applications filed. By waiting until the time for filing had expired and then seeking to invalidate the examination this candidate can be fitted into the list only through its entire destruction. This means a new list and a new struggle for priority. None of these things would have happened if the petitioner had not deliberately refrained from filing an application. This deprived all those near the head of the list of their right to appointment. His action, even if valid, if brought in proper time, cannot now be sustained because of his inaction and delay.

Passing to the merits, a two-fold question remains: First, the question of the proper construction of section 25-a of the Civil Service Law, more particularly the phrase positions such as policeman, fireman, prison guard, or other positions which require extraordinary physical effort * * A consideration of the language of the statute shows that the extraordinary physical effort required need not be continuous, but only that the position comprise in part such effort. The court may take judicial notice that the examples given in the statute, namely, policeman, fireman and prison guard, do not require the continuous use of extraordinary physical effort, but only that it be available when needed. If, therefore, the position of porter may involve any duties which would come within the meaning of the phrase “ extraordinary physical effort,” the position is within the class denominated in the exception. Furthermore, the amount and kind of effort denoted by the phrase extraordinary physical effort ” cannot be judged by any absolute standard. As compared with the sedentary white collar occupations, such as bookkeeper, primarily requiring mental effort, the position of porter does require extraordinary physical effort. Then, too, physical effort exerted for a long duration may be as extraordinary as strength exerted in an emergency.

I In applying the rule enunciated by the Legislature, petitioner lays stress on the lighter duties of the position while the Civil Service Commission considers that the position also involves the moving of furniture, heavy fixtures, garbage, ashes and other like duties. It is to be noted that the published notice required among other things the moving of fixtures, ashes, etc. As already stated, to bring a position within the statutory exception, extraordinary physical effort need not be its daily routine. Even the positions of policeman, fireman and prison guard do not measure up to that standard. The Commission properly requires that an eligible, certified under the title of porter, should be able to perform any and all of the possible duties of the position. If the work of a porter were confined to polishing brass and general light cleaning, the determination of the Commission, that the work required extraordinary physical effort, might have been open to question. If, on the other hand, the duties of the position had been restricted to the concededly heavier and more arduous tasks, the contrary conclusion would have been ■unassailable. It is apparent that the Municipal Civil Service Commission could reasonably find that the duties of porter involved both light work and work which would require the expenditure of extraordinary physical effort. We reach the conclusion, therefore, that the Municipal Civil Service Commission properly decided that the duties under the title of porter brought the position within the exception of the statute. (Civil Service Law, § 25-a.)

The second part of the question on the merits concerns the propriety of the action of the Commission in fixing the age limit of porters at under forty-six years of age on the date of application and under fifty years on the date of appointment. Here, the Civil Service Commission could consider that, since no person in the city service is dismissed for old age, a man taken into the service at the age of forty-nine continues until he reaches seventy. The average age of all laborers in the city service being forty-six, the Commission properly anticipated that the lighter tasks might be assigned to the older men and that the new employees should be sufficiently vigorous to do the heavier tasks assignable. We conclude that the action of the Commission finds support in the record and that it was not arbitrary, unreasonable or beyond the scope of its discretion.

The orders should be reversed and the petition dismissed, without costs.

Crane, Ch. J., Lehman, O’Brien and Lohghran, JJ., concur; Hubbs and Rippey, JJ., concur on first ground stated in the opinion.

Orders reversed, etc


author: Loughran, J.

text:
    In the Matter of Anthony J. Fugazy, Respondent, against Paul J. Kern et al., Constituting the Municipal Civil Service Commission of the City of New York, et al., Appellants, and S. Howard Cohen et al., as Commissioners of the Board of Elections of the City of New York, Respondents.
    Argued April 12, 1939;
    decided May 23, 1939.

      William C. Chanler, Corporation Counsel (Robert H. Schaffer and Paxton Blair of counsel), for appellants.
    Section 36 of the Election Law (Cons. Laws, ch. 17) is not a mandatory salary statute and does not confer upon the Board of Elections the unrestricted right to fix the number and salaries of their employees. Hence the appropriation for the salary of petitioner as a clerk in the Board of Elections was within the discretion of the city budgetary bodies.' (Matter of Wingate v. McGoldrick, 279 N. Y. 246; Matter of Hetherington v. McGoldrick, 279 N. Y. 687; Matter of Rosenthal v. McGoldrick, 279 N. Y. 688; 280 N. Y. 11.) Since the appropriation for petitioner was a discretionary one it was within the power of the city to condition the appropriation by the provision that no vacancy occurring during the course of the budgetary year could be filled except upon permission of the city’s Budget Director. (People ex rel. Plancon v. Prendergast, 219 N. Y. 252; Matter of Dobrovolny v. Prendergast, 219 N. Y. 280.)

      Irving H. Saypol and Leo Kotler for petitioner, respondent.
    The Board of Elections is vested with sole power to appoint or remove its employees, free from control by the Director of the Budget or the Municipal Civil Service Commission. (Cons. Laws, ch. 17, § 36; Matter of O’Keeffe v. Cohen, 275 N. Y. 550; Matter of Criss v. Cohen, 275 N. Y. 551; Matter of

      Blondheim v. Cohen, 272 N. Y. 520; Schechter Corp. v. United States, 295 U. S. 495; Matter of Finegan v. Cohen, 275 N. Y. 432; Forbes v. Cohen, 254 App. Div. 548.)

      John J. Bennett, Jr., Attorney-General (Henry Epstein and Hyman Wank of counsel), for defendants, respondents.
    The power to appoint or remove clerks of the Board of Elections vests in such Board free from any control by the Municipal Civil Service Commission. (Matter of O’ Keeffe v. Cohen, 275 N. Y. 551; Matter of Criss v. Cohen, 275 N. Y. 550; Matter of Blondheim v. Cohen, 272 N. Y. 520; Matter of Finegan v. Cohen, 275 N. Y. 432.) The power to appoint or remove clerks of the Board of Elections vests in such Board free from any control by the Director of the Budget. (Matter of O’ Keeffe v. Cohen, 275 N. Y. 551; Fuhrmann v. Graves, 235 N. Y. 77; Matter of Reif v. Schwab, 204 App. Div. 50; Schechter Corp. v. United States, 295 U. S. 495; Forbes v. Cohen, 254 App. Div. 548.)
   Loughran, J.

In February, 1938, the Board of Elections of the city of New York appointed the petitioner Anthony J. Fugazy at an annual salary of $2,500 in place of one of its clerks whose employment had ceased in August, 1937. Notice of the appointment was transmitted to the Budget Director, to the Comptroller and to the Municipal Civil Service Commission. The Director treated the notice to him as a request for his permission to fill a vacancy in the position and (as he put it) determined in the exercise of discretion that if the Board found it by law without an additional clerk during its busiest period, from August to November, it did not require the services of a new appointee in March, 1938.”

Petitioner then brought this proceeding to compel recognition of his appointment. The Municipal Civil Service Commission, the Budget Director and the Board of Elections were made defendants. The Board asked that the petition be granted. The Commission and the Director served an answer setting up two defenses: (1) Under the terms and conditions of the budget for 1938, no vacancies existing on January 1, 1938, or occurring thereafter in any schedule or appropriation providing for the employment of personal service during 1938 could be filled except upon permission of the Budget Director, who had denied the request to fill a vacancy by the appointment of the petitioner. (2) The Budget Director having refused permission to fill said vacancy there was no appropriation in the budget for 1938 for the position to which the Board of Elections purported to appoint the petitioner.”

The Special Term held the petitioner’s appointment to be valid. The Appellate Division affirmed and gave leave to the answering defendants to present the controversy to us.

Section 36 of the Election Law (Cons. Laws, ch. 17) provides: Employees of board of elections. Every board of elections may appoint and, at pleasure remove clerks, voting machine custodians and other employees, prescribe their duties and fix their rank. In the city of New York, within the amounts appropriated therefor, and elsewhere within the amounts authorized by the board of supervisors, the board of elections also may fix the number and salaries of its employees, it being the intention of this article, and said intention is hereby declared, to secure in the appointment of the members and employees of the board of elections equal representation of the two political parties which at the general election next preceding such appointment cast the highest and the next highest number of votes for governor.” (The emphasis is ours.) These provisions were last enacted in 1922 (L. 1922, ch. 588, as amd.), pursuant to section 6 of article 2 of the State Constitution which then read in part: Bipartisan election boards. All laws creating, regulating or affecting boards of officers charged with the duty of registering voters, or of distributing ballots at the polls to voters, or of receiving, recording or counting votes at elections, shall secure equal representation of the two political parties which, at the general election next preceding that for which such boards or officers are to serve, cast the highest and- the next highest number of votes. * * * ”

We think that both the fair meaning and the express policy of section 36 validate the result reached in the courts below.

The argument for the city underscores a phrase in section 36 as follows: In the city of New York, within the amounts appropriated therefor, * * * the board of elections also may fix the number and salaries of its employees.” It is not denied that the position to which the petitioner was appointed had been provided for in the budget for 1938. The theory of the foregoing second defense is that the total amounts appropriated for the Board of Elections had been reduced by the occurrence of the vacancy on its staff, and that so long as the Budget Director refused permission to fill that vacancy there was in law no appropriation for the position.

We cannot follow that idea. The city’s argument in effect recasts section 36 so as to make it say, “ Subject to the discretionary power of the Budget Director to authorize the filling of vacancies, the Board of Elections may fix the number and salaries of its employees.” If the Legislature had meant that, it would undoubtedly have plainly told us so.

People ex rel. Plancon v. Prendergast (219 N. Y. 252) and Matter of Dobrovolny v. Prendergast (219 N. Y. 280) are not in point. The positions there involved were subject to regulation by the Board of Aldermen. In Matter of Daly v. McGoldrick (280 N. Y. 210) the appointments were to be made under section 21 of the Surrogate’s Court Act which required that the salaries be fixed by the Board of Vldermen.

The order should be affirmed, with costs.

Crane, Ch. J., Lehman, Hubbs, Finch and Rippey, JJ., concur; O’Brien, J., taking no part.

Order affirmed.


text:
    In the Matter of George Middlebrook, an Incompetent Person. Indemnity Insurance Company of North America, Appellant; Margaret Middlebrook, as Committee of George Middlebrook, an Incompetent Person, et al., Respondents.
    Argued April 18, 1939;
    decided May 23, 1939.

      Samuel Gottesman and Alfred A. Walter for appellant.
    The order, in so far as it directs the appellant, as a condition precedent to its release from liability, pursuant to section 158 of the Civil Practice Act, to pay the fees of the special guardian, is erroneous. The court had no power to impose terms for the granting of that to which the appellant was entitled as a matter of right. (Matter of American Surety Co., 61 Misc. Rep. 542; Matter of United States Fidelity & Guaranty Co., 194 App. Div. 972; Matter of Columbia Casualty Co., N. Y. L. J. April 12, 1937.)

      James J. McCulloch for Margaret Middlebrook, as committee, respondent.

      William A. Gillcrist and James A. Clark for United States Veterans’ Administration, respondent.
    The court properly exercised its discretion in directing that the special guardian’s fee be paid directly by the appellant. (Matter of Hidden, 243 N. Y. 499; Stevens v. Central Nat. Bank, 168 N. Y. 560; Wilcox v. Wilcox, 14 N. Y. 575; Matter of Brock, 245 App. Div. 5; Matter of Conlin, 212 App. Div. 832; 240 N. Y. 646; Matter of Watkins, 118 Misc. Rep. 645.)

      Edward V. Gross, special guardian, respondent.
    When a surety, for no reason other than its own wish to be relieved from liability, applies for release from liability, the court should require it to pay the expenses of the proceeding made necessary by such application. (Matter of Hidden, 243 N. Y. 499; Sporza v. German Sav. Bank, 192 N. Y. 8; Carter v. Beckwith, 128 N. Y. 312; Matter of Erlanger, 153 Misc. Rep. 573; Siebert v. Milbank, 95 App. Div. 566; 180 N. Y. 535; Downing v. Marshall, 37 N. Y. 380; Osborn v. Cardeza, 208 N. Y. 131; Ochs v. Maydole Hammer Co., 138 Misc. Rep. 665; National Surety Co. v. Stallo, 171 App. Div. 206; 226 N. Y. 707.)
   Crane, Ch. J.

The Appellate Division has certified the following question in allowing an appeal to this court: Did the Supreme Court have the power to impose the terms embodied in the order of August 26, 1938, as a condition to the surety’s discharge? ”

The condition referred to is the payment to the special guardian of an incompetent veteran of the sum of seventy-five dollars fixed and allowed by the order as his fees for his services as such special guardian in the accounting proceeding.

In March, 1925, Margaret Middlebrook was appointed committee of the estate of George Middlebrook, an incompetent veteran. The appellant Indemnity Insurance Company of North America became the surety on her bond of $2,500. In May of 1937 the appellant moved, pursuant to section 158 of the Civil Practice Act, for an order relieving it from future liability and directing the committee to file a new bond within five days, and to account, up to the date of the filing and approval of said new bond. An intermediate order was made in May, 1937, granting appellant’s application to be relieved from future liability and directing the committee to account for all her acts and proceedings up to and including the date of said order. The order also appointed the special guardian, authorizing him to appear and protect the interests of the incompetent in said proceeding. The account was filed and received the approval of the special guardian who reported that the committee had properly accounted for $13,015.83, compensation received from the Veterans’ Administration, plus $876.27, proceeds of adjusted service certificates; and had also accounted for disbursements of $13,887.07, leaving a balance and deposit in the Bank of Manhattan of $5.03.

In July, 1938, the appellant applied to have the account judicially settled, which application was not opposed by any party, except that the attorney for the committee requested that the appellant be compelled to pay the fees of the special guardian and those of the committee’s attorney. A like request was made by the Veterans’ Administration. On August 26, 1938, an order was made judicially settling the account of the committee as filed, directing the filing of a new surety bond in the sum of $2,000; also directing the committee to pay to the appellant past due bond premiums out of any funds which might come into her hands belonging to the incompetent, allowing the committee statutory commissions in the amount of $375.42, and directing that the appellant, as a condition precedent to its release of liability, pay to the special guardian the sum of $75 fixed and allowed him by said order as his fee.

The appeal, as before stated, is from that portion of the order which directs the appellant, as a condition precedent to its release, to pay the fees of the special guardian. In this matter we are controlled entirely by statute. Prior to 1901, section 812 of the Code of Civil Procedure, now section 158 of the Civil Practice Act, was held to vest in the court discretion as to whether a surety’s application to be released should or should not be granted. (Matter of Thurber, 162 N. Y. 244.) Thereafter the section was amended by chapter 524 of the Laws of 1901, so as to include the following words: shall be entitled as a matter of right to be, and shall be, discharged from liability as hereinafter provided.” The change or amendment was to give to the surety the privilege of being discharged upon accounting, as matter of right, and not in the discretion of the court. Our present section 158 of the Civil Practice Act, a continuation of section 812 of the Code of Civil Procedure, reads, so far as pertinent:

“ Discharge of surety. 1. The surety * * * upon the bond * * * of any * * * committee * * * shall be entitled as a matter of right to be, and shall be, discharged from liability as hereinafter provided, and to that end, on notice to the principal named in such bond, may apply to the court that accepted such bond or to the court of which the judge that accepted such bond was a member or to any judge thereof, praying to be relieved from liability as such surety * * * for the act or omission of such principal occurring after the date of the order relieving such surety * * * hereinafter provided for and that such principal be required to account and give new sureties.”

The respondents argue that, as the surety company desires to be discharged and can only be relieved from further liability after an accounting, that all necessary steps, including the appointment of a special guardian, have been forced by the surety’s application, and consequently the surety should pay the expenses thus incurred in its behalf. There is some reason and force in the argument, but it runs counter to the express words of the statute which took from the courts any discretion in the matter. The discharge of the surety from future liability, in other words, discharge from its bond, is now a matter of right. The accounting is required to determine in the first instance the condition of the estate and the possible liability of the surety for any defalcations. We do not see how the surety can be charged with the expenses, including the fees of special guardian, without reviving a discretion in the courts, which the Legislature has taken away. Apparently there has been very little trouble arising out of this provision, although there must have been innumerable applications for discharge by sureties during the past thirty-eight years. Reference may be made to Matter of American Surety Co. (61 Misc, Rep. 542); Matter of U. S. Fidelity & Guaranty Co. (Butts) (194 App. Div. 972) and to the action of Surrogates under a similarprovision applying to their courts, section 109 of the Surrogate’s Court Act, which will be found in said Matter of American Surety Co. (61 Misc. Rep. 542) and Matter of Columbia Casualty Co. (appearing in New York Law Journal of April 12, 1937), a decision of Surrogate Wingate, of the Surrogate’s Court, Kings county. These decisions indicate that the courts have understood the rule to be as we have expressed it — that the discharge was a matter of right, permitting of no conditions.

This decision of course is based solely upon the facts as presented. A different question might arise where expense has been necessitated by some act or default upon the part of the surety company or its insured.

For these reasons the orders in so far as appealed from should be reversed, with costs in all courts, and the question certified answered in the negative.

Lehman, Hubbs, Loughran, Finch and Rippey, JJ., concur; O’Brien, J., taking no part.

Ordered accordingly.


text:
    The People of the State of New York, Respondent, v. Joseph Weiseman, Appellant.
    Argued April 21, 1939;
    decided May 23, 1939.

      Bernard L. Shapiro for appellant.
    The People failed to establish the commission of any crime by the defendant. (People v. Ledwon, 153 N. Y. 10; People v. Nicosia, 164 Misc. Rep. 152; People v. Clark, 242 N. Y. 313; People v. Werner, 174 N. Y. 132; People v. West, 106 N. Y. 293;
      People v. Atwater, 191 App. Div. 345; People v. D’Antonio, 150 App. Div. 109; United States v. Balint, 258 U. S. 250; Mills v. State, 41 Tex. Cr. Rep. 447; Porter v. State, 34 Tex. Cr. Rep. 364; Barrow v. Owen, 89 Fed. Rep. [2d] 476; People v. Harris, 136 N. Y. 423; Lamb v. Union Ry. Co., 195 N. Y. 260; United States v. Ross, 92 U. S. 281; United States v. Buchalter, 88 Fed. Rep. [2d] 625; People v. Sowma, 252 App. Div. 413.) The request to charge that, if the defendant was called out of the detention pen and was told that he was discharged he had a right to leave, was erroneously denied. (People v. Murphy, 20 Pac. Rep. [2d] 63; Matter of Eley, 130 Pac. Rep. 821.)

      Thomas E. Dewey, District Attorney (Stanley H. Fuld and Whitman Knapp for respondent.
    The People’s evidence established that the defendant, being in lawful custody, departed therefrom without permission from any one in authority. (People v. Pesky, 254 N. Y. 373; People v. McCarthy, 250 N. Y. 358; People v. Malkin, 250 N. Y. 185; People v. Shattuck, 194 N. Y. 424.) The evidence supports the jury’s finding of a criminal intent. (Riley v. State, 16 Conn. 47; Wiggins v. State, 194 Ind. 118; State v. McInerney, 53 R. I. 203; State v. Clark, 32 Nev. 145.) The court’s charge was correct and the additional request was properly denied. (State v. Doud, 7 Conn. 384; Riley v. State, 16 Conn. 47; State v. McInerney, 53 R. I. 203; Johnson v. State, 122 Ga. 172; State v. Wright, 81 Vt. 281.)
   Crane, Ch. J.

The defendant was arrested on May 24, 1935, charged by a woman with the commission of a serious offense. He was taken to the police station and locked up. Later he was free, at liberty. Arrested three years later, he has been indicted for the “ crime of prisoner escaping as a felony.” The defendant says he was discharged. The jury having convicted the defendant, sentence was suspended by the trial judge. The Appellate Division affirmed the conviction, two of the justices dissenting and voting to reverse and dismiss the indictment. The defendant has appealed here, claiming: (1) That he has not been proved guilty beyond a reasonable doubt or that the evidence is insufficient to establish his guilt; (2) that there was error committed on the trial. We have this peculiar circumstance : That the prisoner was locked in the pen in the Magistrate’s Court there is no doubt; that he came out later is also beyond dispute. According to the testimony introduced by the People, it was impossible for the defendant to get out, and according to the logic of the testimony he never escaped. The defendant says that he was ordered out and discharged by a person apparently in authority.

Officer Walsh took the defendant, upon arrest, to the Fourth District Magistrate’s Court at 153 East Fifty-seventh street and placed him in the detention pen. The defendant’s name was entered in the pen book at one-ten p. m. When the officer came back at three-ten p. m. the prisoner was gone. In the ledger or record there is the entry of the time the defendant was signed in. There is no entry for “ time out.”

Stephen A. Darcy was the officer in charge of the pen. He testifies that it was Detective Fater who came to get the prisoner, but the prisoner was not there. Darcy was at the door of the pen until half-past one, when he went to lunch and came back at two o’clock. In his absence Officer Creen was in attendance. At one-fifty-five Officer Devine brought in nine prisoners and signed them out at two-thirty-five.

Q. When you left to go to lunch, was Weiseman still there? A. Yes, sir, your Honor, he was.

“ Q. At 2.35, when Devine took out these prisoners, can you tell from this record whether he took them all out at the same time? A. I was there at the time and gave them to him. He only took nine out, because he took eight and he put them around in a small place at the side of the pen and counted them, and then he had to go back and pick a man off the floor, a prisoner off the floor that had been sleeping off his intoxication, had been intoxicated; and I stood at the gate with the key in the lock while he was picking him off the floor, and brought him out, and I locked the gate again; immediately Fater came for his prisoner and I called his name up to sign on the book, and he was not in there; so, of course, Fater, of course, didn’t sign the book then.”

The names of the nine prisoners were called off.

Q. Did Devine sign up for the prisoners he took out? A. He did, your Honor.”

Darcy further testifies that he counted these prisoners as they went out. We have it positively stated by Darcy that the defendant did not go out while he was there.

' Q. You know the man didn’t go out while you were there? A. I know the man didn’t go out while I was there.”

In other words, Darcy says the man was in the cell and that the only men who went out with Devine were the nine men he put in, for they were counted and called by name, being lined up against the wall. This leaves the half hour that Green was there, and he testified as follows:

“ Q. During the time while you were in charge of the detention pen, did any police officer come and take out a prisoner by the name of Joseph Weiseman? A. No, sir. Q. Did you see this defendant Joseph Weiseman in the pen, the detention pen, that day? A. I did. Q. You never let him out of the pen, either? A. No.”

The other officer is Edwin Devine. He says that he told Darcy that he had come to take out his prisoners. “ I signed the prisoners out and I called the prisoners by name. I had eight prisoners who came out. One prisoner, the man who was charged with intoxication, unable to take care of himself, was lying on the floor of the pen. I went into the pen and woke him up and brought him out.”

All the prisoners were lined up before the magistrate, then- names were called and sentence was passed upon them all.

Q. But you are positive that every name of your prisoners was called out in court that day before the Magistrate? A. That is right.” The witness admits that he did not put all nine' names in the book, but just signed “ George Doherty and eight others,” that is, nine prisoners.

Now the point I am making is this: The witnesses for the People say that Weiseman, the defendant, was put in the pen and locked in. Darcy did not let him out, neither did Green. These were the two men in charge of the gate. They swore positively he did not come out, and they also testify that he was not among the nine that Officer Devine took out. The People offer no explanation whatever, so far as the testimony shows, of the manner of Weiseman’s release. He, when he takes the stand, offers the only explanation. Weiseman was a shoe representative of Dr. Locke, of Williamsburg, Ontario, and had been for six years. He is a graduate of a college in Iowa, University of Iowa, and for a while attended Yale University. He says that he now has a shoe store in Los Angeles. His story is short and to the point.

“ I was placed in this detention pen and I was there for some time amongst a lot of people, with bootblack boxes and candy boxes and various other peddler accessories and who I took to be peddlers, and I was in this detention pen approximately 15 or 20 minutes, when someone in uniform opened the door and said, Come on, all out.’ It was the elderly gentleman, Stephen Darcy. I didn’t know what to do, so I just followed the prisoners, or the people that I was with and even then I was confused and I had some candy in my hand which I bought from one of the peddlers who was with me, and the court attendant said, ‘ Half of you men go in front of the Magistrate,’ and I started to go in that gate there in back of the other peddlers and the attendant said, ' No, you stay here,’ which I did.

I was in that anteroom about fifteen, at least fifteen minutes, standing there, when someone said for me to go in front of the Magistrate, which I did, with the other peddlers, and when I did that, I was standing there and didn’t know what it was all about and someone said, What are you standing here for — you are discharged.’ And knowing that the complaint was false and I had nothing at all to do with it, I went home.”

The People’s case is made up on the inference that Weiseman must have slipped out when Devine took out his nine prisoners. This might have been a fair inference if it were not for the fact that these same People’s witnesses contra-diet it. Devine said he had his nine prisoners all by name. They were the nine he signed in and the nine who were signed out and both Darcy and Green say the defendant did not leave the cell. Under these circumstances and this proof we do not see how the defendant’s guilt has been proved beyond a reasonable doubt.

The court was asked to charge as follows:

“ Mr. Murray: I ask your Honor to charge the jury that this defendant was not obliged to know the procedure through which persons are detained and discharged in Magistrates’ Courts.
“ The Court: He had no legal obligation to familiarize himself with any legal procedure that I know of; but the question for the jury to decide is whether he, a man of his background, intelligence, and education, under all the circumstances, did have knowledge that he was not being legally discharged.” To this an exception was taken.

If the magistrate discharged the prisoner and told him he could go it was not for the prisoner to pass upon the legality of the magistrate’s acts. If he knew that the judge or officials had mistaken him for one of Devine’s prisoners, then he would be guilty of the crime charged, or an escape, but he was not to be charged with an escape because he may have known or doubted the legality of the proceedings otherwise. He was there to answer to the charge made against him, not to instruct the officials in their duty; and, in fact, the District Attorney does not claim it. If, on the other hand, the defendant had deceived the officers or had led them to think that he was some other person, he would have had knowledge of such illegality as to make the judge’s statements correct. As made, they were too broad, a matter not in itself calling for reversal except in view of the circumstances of this case.

The judgments should be reversed and the indictment dismissed.

Lehman, Hubbs, Lohghran, Finch and Rippey, JJ., concur; O’Brien, J., taking no part.

Judgments reversed, etc.


author: Rippey, J.

text:
    In the Matter of the Accounting of John M. Lyon, as Trustee under the Will of Daniel E. Merritt, Deceased. Alice S. Leal et al., Appellants; John M. Lyon et al., Respondents.

      Submitted April 21, 1939;
    decided May 23, 1939.

      C. Joseph Danahy and John F. X. Sheridan for Alice S. Leal, appellant.
    The trust attempted to be set up in the fifth paragraph of the will is not a charitable trust and is illegal and void and against public policy. (Matter of Beekman, 232 N. Y. 365; Matter of Carpenter, 163 Misc. Rep. 474; Matter of Lyon, 173 App. Div. 473; Moore v. United States Cremation Co., 275 N. Y. 105.) It is a bequest to a non-incorporated association. (Mount v. Tuttle, 183 N. Y. 358; Fralick v. Lyford, 107 App. Div. 543; 187 N. Y. 524; Catt v. Catt, 118 App. Div. 742; Owens v. Missionary Society, 14 N. Y. 380; Longheed v. D. B. Church, 129 N. Y. 211.) The cy pres doctrine has no application. (Saltsman v. Greene, 256 N. Y. 636; Matter of O’Hanlon, 147 Misc. Rep. 546; Matter of Walter, 150 Misc. Rep. 512; Beekman v. Bonsor, 23 N. Y. 298; Bascom v. Albertson, 34 N. Y. 584; Holmes v. Mead, 52 N. Y. 332; Prichard v. Thompson, 95 N. Y. 76; Tilden v. Green, 130 N. Y. 29.) In any event the cy pres doctrine will only be applied in cases where there is a general charitable intent. (Saltsman
      v. Greene, 256 N. Y. 636; Matter of Neher, 279 N. Y. 370; Matter of Fletcher, 280 N. Y. 86.) The remainder of the estate should go to the heirs at law and next of kin of the decedent. (Matter of Johnston, 298 N. Y. Supp. 957; Whistler v. Webster, 2 Ves. 367; Wilby v. Wilby, 2 Yes. & Bea. 187; Thelluson v. Woodford, 13 Ves. 225; Havens v. Sackett & Havens, 15 N. Y. 365; Oliver v. Wells, 254 N. Y. 451.)

      Woolsey A. Shepard and Daniel J. Clifford for Howard M. Banks, individually and as administrator of Emma E. Merritt, deceased, et al., appellants.
    The charitable bequest failed to operate as specifically directed because of the adjudicated fraud of testator which eliminated the substance of the gift. There being no expression of a general charitable intent the cy pres doctrine is not applicable and the property remaining descends according to the laws of intestacy. (Matter of Lyon, 173 App. Div. 473; Trustees of Sailors’ Snug Harbor v. Carmody, 211 N. Y. 286; Teele v. Bishop of Derry, 168 Mass. 341; Saltsman v. Greene, 136 Misc. Rep. 497; 231 App. Div. 781; 256 N. Y. 636; Matter of O’Hanlon, 147 Misc. Rep. 546; Matter of Rappolt, 140 Misc. Rep. 239; Camp v. Presbyterian Society of Sackets Harbor, 105 Misc. Rep. 139; Bowden v. Brown, 200 Mass. 269; Hopkins v. Grimshaw, 165 U. S. 342; Bancroft v. Maine State Sanitarium, 118 Me. 56; Bragg v. Litchfield, 212 Mass. 148; St. Louis v. McAllister, 302 Mo. 152; Brown v. Condit, 70 N. J. Eq. 440; Matter of Packe, [1918] 1 Ch. Div. 437.) The will, in so far as it attempts to leave property in trust to a group of charity trustees, makes a bequest to an unincorporated group or association, which is wholly void and cannot be applied cy pres. (Owens v. Missionary Society, 14 N. Y. 380; Downing v. Marshall, 23 N. Y. 366; White v. Howard, 46 N. Y. 144; Sherwood v. American Bible Society, 1 Keyes, 561; Fairchild v. Edson, 154 N. Y. 199; Murray v. Miller, 178 N. Y. 316; Inglis v. Trustees of Sailors’ Snug Harbor, 28 U. S. 99; Trustees of Sailors’ Snug Harbor v. Carmody, 211 N. Y. 286; Fralick v. Lyford, 107 App. Div. 543; 187 N. Y. 524; Mount v. Tuttle, 183 N. Y. 358; Ely v. Megie, 219 N. Y. 112; Wright v. Wright, 225 N. Y. 329; Saltsman v. Greene, 256 N. Y. 636; Catt v. Catt, 118 App. Div. 742; Hughes v. Stoutenburgh, 168 App. Div. 512; Sherman v. Richmond Hose Co., 230 N. Y. 462.)

      John J. Bennett, Jr., Attorney-General (Robert P. Beyer of counsel), for respondent.
    The residuary trust established by the will being for charitable and benevolent purposes, is valid. (Butterworth v. Keeler, 219 N. Y. 446; Hamburger v. Cornell University, 204 App. Div. 664; 240 N. Y. 328; Matter of Frasch, 245 N. Y. 174; Matter of MacDowell, 217 N. Y. 454; Matter of Judd, 242 App. Div. 389; 270 N. Y. 516; Matter of Hall, 156 Misc. Rep. 841; 247 App. Div. 719; 272 N. Y. 428; Matter of Robinson, 203 N. Y. 380; Matter of Cunningham, 206 N. Y. 601; Edgar v. Waldo, 227 N. Y. 656; Manley v. Fiske, 139 App. Div. 665; 201 N. Y. 546; Matter of Neher, 279 N. Y. 370; Matter of Merritt, 124 Misc. Rep. 709; 249 N. Y. 532; Matter of Skuse, 165 Misc. Rep. 554; Matter of Dazian, 167 Misc. Rep. 151.) The court below properly applied the cy pres doctrine to effect public burial accommodations for the benefit of the residents of Port Chester and vicinity. (Matter of MacDowell, 217 N. Y. 454; Matter of Gray, 248 App. Div. 373; 272 N. Y. 635; Matter of Neher, 279 N. Y. 370; City Bank Farmers Trust Co. v. Arnold, 268 N. Y. 297.)
   Rippey, J.

Daniel E. Merritt died on May 22, 1914, leaving a last will and testament, dated October 16, 1913, which was admitted to probate in Westchester county on July 15, 1914, by which he attempted to dispose of his entire estate. Letters testamentary were issued to John M. Lyon, who qualified and entered upon his duties as sole executor of the estate. He was also appointed on September 23, 1915, and thereupon qualified as sole trustee of the trusts created under the Third and Fourth clauses of the will and has since been acting as such. The trusts having terminated, the trustee has filed his final account for judicial settlement and appropriately seeks a construction of the will, which was refused by the courts on the final accounting of the executor on the ground that the application was premature (Matter of Merritt, 173 App. Div. 473), for the purpose of enabling him legally to distribute the residue and accumulated income of the trust set up in the Third paragraph and to be discharged from further liability as trustee.

At the time the will was made and also at the time of his death, the deceased owned certain personal property, the title to which has not been questioned, and, in addition, assumed to own (1) a farm of 195 acres of land located on the west side of Ridge street in the towns of Rye and Harrison, Westchester county, and known as the Merritt Homestead,” upon which he and his sister lived, and certain other small parcels of real estate, all of the aggregate value of about $200,000, and (2) certain bonds and mortgages aggregating $52,800 in value. The items of real estate had been acquired by Merritt from his sister, Emma E. Merritt, by two deeds, and the bonds and mortgages by nine assignments.

Under the Second clause of his will the deceased directed payment of all of his debts, funeral and testamentary expenses. Under the Third clause of the will a trust of all the rest, residue and remainder of the estate was created for his sister’s benefit. In it he included the Merritt Homestead ” farm which he prohibited the trustee to sell, encumber or mortgage ” except that such portions of it might be leased as were not required by or would not interfere with the use of the farm by his sister. He directed that all charges against the property, including the cost of itsjnaintenance and repair and of the maintenance, repair and protection of the buildings thereon, were first to be paid out of income and that the balance of income should be applied “ to the maintaining, keeping and supporting my sister, Emma E. Merritt, the necessary servants and help upon the premises where we now reside, during her natural life.” On June 3, 1914, a committee of the person and estate of Emma E. Merritt was appointed who thereupon qualified as such committee and took charge of her person and of her estate. The persons so appointed, with a substitute for one of the members who died during the committeeship, continued to act as a committee of her person and property until her death on February 25,1936. Making a wise decision, as the lower courts have held (See Matter of Merritt, supra), the committee refused to accept any benefits under the will of the brother and no election was ever made by the sister to take under that will. On the contrary, actions were instituted by the committee to set aside the deeds of the real estate and the assignments of the bonds and mortgages, and final judgment was entered on December 30, 1914, from which no appeal has been taken, adjudging that the transfers referred to in (1) and (2) above were without consideration, fraudulent and void and procured at a time when Emma E. Merritt was incompetent, and the transfers were set aside. Thus, within eight months of the death of the testator his estate was stripped substantially of all the property which he assumed to own at the time the will was made. The committee thereafter, under direction of the court, since the judgment of December 30, 1914, administered that property as the property of the incompetent. After those transfers had been set aside the sole remaining assets in the estate of Daniel E. Merritt amounted to about $11,000. (See record on appeal, Matter of Merritt, 278 N. Y. 74.) Thus "substantially the entire subject-matter of the trust for the benefit of Emma E. Merritt was never the property of the deceased and at no time vested in the trustee under Daniel Merritt’s will, but passed to the administrators and to the heirs at law and next of kin of Emma E. Merritt upon her death. Upon the accounting of the trustee it appeared that income upon the $11,000 estate of Daniel Merritt remaining in the trust had accumulated in the hands of the trustee during the lifetime of Emma E. Merritt and remained in his hands for distribution upon judicial settlement. This accumulation of income the administrators of the estate of Emma E. Merritt have refused to accept, and it constitutes no part of her estate.' The courts below have correctly held that such income became a part of and followed disposition of the corpus of the trust, but erroneously concluded that it should be transferred to the charity trustees ” referred to in the Fifth clause of the will presently to be considered. By the Fourth clause of the will a trust was set up for the benefit of Laura Pierce, to take effect upon the death of Emma E. Merritt, but this gift lapsed through the death of the beneficiary prior to the death of the fife beneficiary named in the Third clause of the will.

Under the terms of the Fifth clause of the will the deceased attempted to set up a trust of his entire residuary estate after the death of Emma E. Merritt and Laura Pierce and appointed a board of trustees to administer the trust, consisting of the president of the Village of Port Chester, the senior Minister or Pastor, by whatsoever name or title he might be known of the following Churches or religious denominations located in the village of Port Chester ” in office or holding pastorates at the time of the death of Emma. E. Merritt, and of their respective successor or successors in their respective offices, who were directed to have, hold, retain and keep the same as such for the uses, trusts, intents, purposes and subject to the directions and appointments hereinafter mentioned and declared concerning the same, that is to say:

1st. Out of the rents, issues and profits of the said rest, residue and remainder of my said estate, of any kind, character or nature whatsoever and wheresoever located, to plan, lay out and build a public cemetery; which cemetery is to be known as ‘ The Merritt Public Cemetery/ upon the farm of land upon which I now live on Ridge Street in the Towns of Rye and Harrison, Westchester county, New York, for the purpose of providing plots or places wherein the people of the Village of Port Chester and vicinity may be buried without charge as soon as they, my said charity trustees, or a majority of them shall see fit.
2nd. I do hereby direct, that the income of all of my said estate given to my said charity trustees as aforesaid shall forever thereafter be used and applied for the support of said public cemetery and keeping the same in as good condition as the income thereof may permit, and if necessary, build one or more vaults therein and thereupon, but to keep however, a small burial plot wherein my father and mother and other relatives are buried in a good state of repair and condition and not permit the same to be in any manner disturbed or interfered with. All to be done in such manner as my said charity trustees or a majority of them may from time to time or their successors in office may from time to time direct. And it is my intention that the institution hereby created shall be perpetual, and that the above named officers for the time being, and their successors should forever continue and be the governors thereof, and have the superintendence of the same.”

In the fourth subdivision of this clause he declares “ it to be my will and intention that the said rest, residue and remainder of my estate should be in all events applied for the uses and purposes above set forth ” and that his will should be so construed by the courts that none of my relations or any other persons should heir, possess, or enjoy my property, except in the manner and for the uses and purposes hereinabove specified.” Under the Sixth clause -of his will he bars his executors and trustees from leasing, granting, conveying, mortgaging, or otherwise disposing of “ The Merritt Public Cemetery ” which constituted the Merritt Homestead ” farm.

The courts below have erroneously held that the trust created was a general charitable trust and thereupon, under the cy pres doctrine, directed that the property of the estate remaining in the hands of the trustee be transferred to the so-called charity trustees appointed in said decedent’s will ” and be used by them “ for the purpose of purchasing in some convenient non-sectarian cemetery a burial plot, as extensive in dimensions as the fund will permit, * * * to be used for the purpose of providing free burial accommodations for such of the people of the village of Port Chester and vicinity as may be accommodated therein, on applicatian. of their proper surviving relatives for such accommodation.” There is no room in this case for the application of the cy pres doctrine, as will readily appear. (Saltsman v. Greene, 256 N. Y. 636; Matter of Fletcher, 280 N. Y. 86.)

Prior to the adoption of the so-called Tilden Act (Laws of1893, ch. 701), the English doctrine of trusts for charitable uses as distinguished from private trusts governed by the general rules of law and the doctrine of cy pres did not prevail in this State. (Holland v. Alcock, 108 N. Y. 312; Tilden v. Green, 130 N. Y. 29.) This statute with subsequent amendments is now embraced in section 12 of the Personal Property Law (Cons. Laws, ch. 41) and section 113 of the Real Property Law (Cons. Laws, ch. 50). By the enactment of those statutes it was the intention of the Legislature to enforce and uphold charitable trusts not theretofore recognized as valid. (Dammert v. Osborn, 140 N. Y. 30.) It has long been established that an unincorporated association or group is incompetent to take and hold property by devise or bequest. (Mount v. Tuttle, 183 N. Y. 358.) That rule has not been changed by the provisions of the foregoing statutes. (Fralick v. Lyford, 107 App. Div. 543; affd., 187 N. Y. 524.) However, if the gift is in trust for a general charitable or benevolent use, it is provided that it may not fail because of any neglect of the testator to name a competent trustee since the title will then vest in the Supreme Court. Still the Supreme Court may act to save a trust only when it is created for a general religious, educational, charitable or benevolent use in cases specifically provided for in the statute.

The first question to be settled is whether the testator created or had an intention to create a trust for a general charitable or benevolent use. - A reading of the will exhibits a clear and unqualifiedly expressed intention on the part of the testator to restrict his gift under the Fifth clause of the will to the planning, laying out, building and subsequent use of a particular property for a particular purpose. He intended and specifically directed that the “ Merritt Homestead,” the farm on which he lived, should be forever maintained by his trustees as “ The Merritt Public Cemetery,” not only for the purpose of maintaining the permanent private burial ground of his own kin and of providing places wherein the people of the village of Port Chester and vicinity might be buried without charge, but as well to perpetuate a monument to himself and his family. He asserted that “the institution” to be created on that particular farm should be perpetual. He preserved from sale or encumbrance that particular property during the lifetime of bis sister and continued its preservation intact in perpetuity for the particular and specific purpose designated by himself. He directed that the income should be used to keep “ the institution ” in good condition and to “ if necessary build one or more vaults therein and thereupon.” The particular farm, in addition to being perpetually maintained for the inclusion, care, and maintenance of the private burying ground of the Merritt family, was to be used and maintained, so he specifically said, as a public cemetery for free burial for all of the people of Port Chester and vicinity. It was no part of bis plan that the gift should be used for the selection and purchase of another spot, other than the farm, for cemetery purposes in some other location or for the selection and maintenance of a plot in some other established cemetery that would accommodate the burial of only a limited portion of the people of Port Chester and vicinity. The purpose and intent of the testator are not left to inference or in doubt. He never intended that the gift should be made or accepted for a general charitable or benevolent use and specifically provided to the contrary in his will. Neither at the time when he made his will nor at the time of his death did the testator own the land which he directed to be converted into a public cemetery. At neither of those times were there nor have there since arisen rents or profits to support any such cemetery. Thus, not only was there no property at any time with which to carry out the limited scheme or plan which, by clear intention and specific direction, the testator laid out in his will, but the amount now left in the corpus of the trust is not nor was the corpus of the trust ever sufficient to render operative the purpose and intent of the deceased. The court cannot attempt to give the plan effect. (Matter of Fletcher, supra.)

There was located on the Merritt Homestead ” farm a burial plot in which members of the Merritt family had been interred. The committee of Emma E. Merritt,""by authority of the Supreme Court, after notice to all interested parties in this and in her estate, procured a plot in the Greenwood Union Cemetery in the town of Rye to which a transfer of such bodies was made, and John M. Lyon was named as trustee of the Merritt family burial plat fund,” for which he accounted in this proceeding. He requested that he be permitted to resign as such trustee. The decree below permits of such resignation and appoints a substitute trustee and the use of the fund that has been created for the proper care, preservation and maintenance of the plot in Greenwood Cemetery. This was apparently provided for by consent, and no question is raised concerning that procedure upon this appeal, and so far as the decree of the Surrogate relates thereto it should not be disturbed.

In view of what has been said above it is unnecessary to consider other questions raised upon this appeal which are of substance and would otherwise need consideration. We do not consider or pass on the question as to whether a gift to a public cemetery is a charitable gift.

As to the residuary estate, deceased died intestate. The matter should be remitted to the Surrogate to proceed in accordance with this opinion and to provide for the distribution of the property remaining inthe hands of the trustee in accordance with the applicable intestate laws of the State of New York.

The order of the Appellate Division and the decree of the Surrogate’s Court should be modified in accordance with this opinion, and, as so modified, affirmed, with costs to appellants appearing and filing briefs payable out of the estate.

Crane, Ch. J., Lehman, Hhbbs, Loughran and Finch, JJ., concur; O’Brien, J., taking no part.

Ordered accordingly.


author: Per Curiam.

text:
    Fredburn Construction Corporation, Appellant, v. City of New York, Respondent.
    Argued April 10, 1939;
    decided May 23, 1939.

      Edwin Hort and Millard H. Ellison for appellant.

      William C. Chanler, Corporation Counsel (Alvin McKinley Sylvester and Paxton Blair of counsel), for respondent.
    The claim that the payment of November 6, 1931, was not intended by the parties to be the final payment under the contract is sham. The real issue was whether the plaintiff could assert the rights it attempted to reserve at the time it accepted the final payment under the contract. (Richard v. Credit Suisse, 242 N. Y. 346; Strasburger v. Rosenheim, 234 App. Div. 544; Dodwell & Co. v. Silverman, 234 App. Div. 362; Alexander Hamilton Institute v. Huston, 254 App. Div. 729; Hanna v. Mitchell, 202 App. Div. 504; 235 N. Y. 534; Larme Estates, Inc., v. Omnichrome Corp., 275 N. Y. 426; Allen v. City of Oneida, 210 N. Y. 496;
      MacArthur Bros. Co. v. City of New York, 177 App. Div. 725; 224 N. Y. 629; Cauldwell-Wingate Co. v. City of New York, 269 N. Y. 539.)
   Per Curiam.

We are of the opinion that upon the motion made by defendant for summary judgment under rule 113 of the Rules of Civil Practice, a substantial question of fact was presented which entitled the plaintiff to a trial of the issue as to whether the so-called last payment voucher was intended and understood to be a last payment voucher and whether plaintiff was barred by accepting the so-called last payment from recovering any further payments from the defendant.

The judgments should be reversed and the motion denied, with costs to the appellant to abide the event.

Lehman, Httbbs, Loughban, Finch and Rippey, JJ., concur; O’Bbien, J., dissents; Cbane, Ch. J., taking no part.

Judgments reversed, etc.