author: Lewis, Ch. J.

text:
    Alice Garvin, Appellant, v. George K. Garvin et al., Respondents.
    Argued October 5, 1953;
    decided December 3, 1953.

      Albert I. Edelman for appellant.
    I. Plaintiff is entitled to a judgment declaring the invalidity of the foreign divorce decree. (Lowe v. Lowe, 265 N. Y. 197; Somberg v. Somberg, 263 N. Y. 1; Baumann v. Baumann, 250 N. Y. 382; Greenberg v. Greenberg, 218 App. Div. 104; James v. Alderton Dock Yards, 256 N. Y. 298.) II. There is necessity for a declaratory judgment on the merits to resolve plaintiff’s status and to protect her rights as wife. (Williams v. North Carolina, 317 U. S. 287; Garvin v. Garvin, 302 N. Y. 96; Pereira v. Pereira, 272 App. Div. 281; Williams v. North Carolina, 325 U. S. 226; Forster v. Forster, 182 Misc. 382; Esenwein v. Commonwealth, 325 U. S. 279.) III. The decisions relied upon by Special Term are inapplicable or of doubtful validity. (Hollister v. Hollister, 288 N. Y. 528; Goshin v. Goshin, 279 App. Div. 668; Goldstein v. Goldstein, 283 N. Y. 146; Reich v. Cochran, 151 N. Y. 122; Pray v. Hegeman, 98 N. Y. 351.) IV. Plaintiff is entitled to a declaratory judgment settling her status as against defendant Mitchell. (Baumann v. Baumann, 250 N. Y. 382; Lowe v. Lowe, 265 N. Y. 197.)

      Eli H. Bronstein for respondents.
    I. Special Term properly exercised its discretion in dismissing the amended complaint and denying a declaratory judgment. (Hollister v. Hollister, 261 App. Div. 693, 288 N. Y. 528; Goshin v. Goshin, 279 App. Div. 668; Fischer v. Fischer, 254 N. Y. 463; Williams v. North Carolina, 317 U. S. 287; Williams v. North Carolina, 325 U .S. 226; Schuylkill Fuel Corp. v. Nieberg Realty Corp., 250 N. Y. 304; Pray v. Hegeman, 98 N. Y. 351; James v. Alderton Dock Yards, 256 N. Y. 298; Trustees of Columbia Univ. v. Kalvin, 226 App. Div. 775; Somberg v. Somberg, 263 N. Y. 1.) II. The amended complaint fails to set forth a valid cause of action against respondent Mitchell. (Baumann v. Baumann, 250 N. Y. 382.)
   Lewis, Ch. J.

This case is a sequel to prior adjudications in litigation (Garvin v. Garvin, 302 N. Y. 96) between the plaintiff and her husband who are parties to the present action. A brief preliminary reference to the prior litigation may clarify our problem.

The prior case, cited above, was an action by the present plaintiff for separation. During the pendency of that action an order was made enjoining the present defendant husband — until the entry of final judgment in the separation action — from proceeding with the prosecution of an action for divorce which he had instituted against plaintiff in the Virgin Islands and from prosecuting elsewhere outside the State of New York any action affecting the marital status of the parties. In defiance of that injunctive order the defendant husband procured in a United States District Court of the Virgin Islands a decree of divorce from the plaintiff after which he returned to the United States, married the defendant Mitchell and has since lived with her as husband and wife in the city of New York.

The present action is by the plaintiff wife, her demand being a judgment declaring that she is the lawful wife of the defendant Garvin; that the Virgin Islands decree procured by the defendant husband is invalid, and that the alleged marriage between the two defendants is null and void. Neither of the defendants in the present action has interposed an answer but each has moved to dismiss the complaint.

At Special Term, in response to the defendants’ motions, the plaintiff’s amended complaint for a declaratory judgment was dismissed upon the ground that the judgment of separation is conclusive upon the plaintiff and the defendant husband that there is an existing valid marriage between them. At the Appellate Division the judgment at Special Term dismissing the complaint was affirmed, two Justices dissenting. From the judgment entered upon the order of the Appellate Division the plaintiff wife has appealed to this court as of right.

As the case comes to us on appeal from a judgment dismissing the complaint on motion by the defendants, we accept as true the material allegations of fact contained in the complaint and any reasonable inference that may be drawn therefrom (Nevins, Inc., v. Kasmach, 279 N. Y. 323, 325).

Applying that rule to the amended complaint in the present action, the following appears from allegations contained therein and from an affidavit served in support of defendants’'motion to dismiss the complaint made upon the ground that there is an existing final judgment of the Supreme Court of New York rendered on the merits determining the same cause of action as stated in the amended complaint herein (Rules Civ. Prac., rule 107, subd. 4):

That plaintiff and the defendant Garvin were married on July 23, 1929, and ever since have been residents of the State of New York; that on October 19, 1949, plaintiff instituted against her husband — the present defendant Garvin — an action for separation; that in the separation action plaintiff’s husband as defendant appeared generally, served a verified answer which admitted his marriage to the plaintiff and their residence in the State of New York, and consented to a decree of separation with reasonable provision for alimony; that in said separation action evidence was taken in open court and thereupon on June 13, 1951, the plaintiff was awarded a judgment of separation with incidental support and maintenance against the defendant who, it was adjudged, had abandoned the plaintiff; that in the meantime, while the marital domicile of the plaintiff and the defendant Garvin was in the State of New York, and while the separation action mentioned above was pending and undetermined, the defendant went to the Virgin Islands and, on May 27,1950, procured in the United States District Court of the Virgin Islands a decree of divorce from the plaintiff in an action prosecuted in defiance of injunctive court orders made during the prosecution of the action of Garvin v. Garvin (supra); that the present plaintiff was not served personally in said divorce action within the jurisdiction of the Virgin Islands court and did not appear therein either personally or by attorney and never submitted herself to the jurisdiction of that court; that upon obtaining said decree of divorce — which he at no time interposed as a defense in his wife’s separation action — the defendant Garvin left the Virgin Islands, returned to New York, and, on or about June 26, 1950, allegedly married the defendant Euth Miller Mitchell in the State of Vermont; that after said alleged marriage the defendants returned to the State of New York where they have ever since resided as alleged husband and wife, and where they are holding themselves out as Mr. and Mrs. George K. Garvin.

Plaintiff’s prayer for relief, in the form of a declaratory judgment, is addressed to the court’s discretion, the statutory scope of which is broad: “ If, in the opinion of the court, the parties should be left to relief by existing forms of actions, or for other reasons, it may decline to pronounce a declaratory judgment, stating the grounds on which its discretion is so exercised ” (Rules Civ. Prac., rule 212; and see Civ. Prac. Act, § 473; Rockland Light & Power Co. v. City of New York, 289 N. Y. 45, 50-51; Woollard v. Schaffer Stores Co., 272 N. Y 304, 311-312). Where there is no necessity for resorting to the declaratory judgment it should not be employed.” (James v. Alderton Dock Yards, 256 N. Y. 298, 305.)

In the circumstances disclosed by this record we cannot say that the following decision at Special Term, affirmed at the Appellate Division, was an abuse of the discretion reposed in those courts: “ A declaratory judgment is unnecessary. The judgment of separation is conclusive upon the plaintiff and the defendant husband that there is an existing valid marriage between them and that the Virgin Islands divorce decree is void [citing cases]. There is no cause of action against the defendant Mitchell.”

The primary fact to be established in Garvin v. Garvin (supra) — the separation brought by the present plaintiff against the present defendant Garvin — was the existence of a valid marriage between the parties (Fischer v. Fischer, 254 N. Y. 463, 466). It thus follows, as a matter of law, from the judgment rendered in plaintiff’s favor on June 13, 1951, in that action — wherein the defendant husband had appeared and had consented to a judgment of separation — that on that date the present defendant Garvin was the plaintiff’s husband.

We are thus led to conclude that in the present action a declaration of the marital status of the plaintiff and the defendant Garvin is unnecessary and, being so, the denial of a declaratory judgment to that effect was within the statutory discretion reposed in the courts below. (Hollister v. Hollister, 288 N. Y. 528; and see Goshin v. Goshin, 279 App. Div. 668.)

Likewise we conclude that the complaint herein does not state a cause of action against the defendant Mitchell (Somberg v. Somberg, 263 N. Y. 1, 4-5; Baumann v. Baumann, 250 N. Y. 382, 386-389).

The judgment should be affirmed, without costs.

Conway, Desmond, Dye, Fuld and Froessel, JJ., concur with Lewis, Ch. J.; Van Voorhis, J., taking no part,

Judgment affirmed,


source: Caselaw Access Project

author: Fboessel, J.

license: Public Domain

text:
    Emil C. Sauchelli et al., Appellants, v. Josephine B. Fata et al., Respondents.
    Argued October 8, 1953;
    decided December 3, 1953.

      Raphael E. Weissman for appellants.
    I. Defendants have no private easement. Plaintiffs, as sole owners of land abutting on the cul-de-sac, are entitled to exclusive use thereof, (Matter of Mayor of City of N. Y., 188 N. Y. 581; Nichols Copper Co. v. Connolly, 208 App. Div. 667, 240 N. Y. 596; Marshall v. Wenninger, 23 App. Div. 275; Shapiro v. Albany Chemical Co., 197 App. Div. 719; Matter of City of N. Y. [Northern Blvd.], 258 N. Y. 136; Besch v. Hyman, 221 App. Div. 455; Howe v. Bell, 143 N. Y. 190; Forstmann v. Joray Holding Co., 244 N. Y. 22; McCann v. Chasm Power Co., 211 N. Y. 301; Tax Lien Co. v. Schultze, 213 N. Y. 9; Johnson v. City of Niagara Falls, 230 N. Y. 77; Klug v. Jeffers, 88 App. Div. 246.) II. Defendants have no public easement. The cul-de-sac was never dedicated nor accepted as a public street, nor condemned nor used nor maintained as such. (Nichols Copper Co. v. Connolly, 208 App. Div. 667, 240 N. Y. 596; Matter of Wallace Ave., 222 N. Y. 139; Smith v. Smythe, 197 N. Y. 457; Johnson v. City of Niagara Falls, 230 N. Y. 77; People v. Underhill, 144 N. Y. 316; Lynbrook Homes v. Frey, 217 App. Div. 164.)

      Arthur S. Hirsch for respondents.
    I. Appellants have no fee title to the bed of Bay Street nor are they solely entitled to exclusive use thereof. (Lord v. Atkins, 138 N. Y. 184; Matter of Opening Eleventh Ave., 81 N. Y. 436; Matter of City of N. Y. [Northern Blvd.], 258 N. Y. 136; Holloway v. Southmayd, 139 N. Y. 390; De Witt v. Village of Ithaca, 15 Hun 568; Dalton v. Levy, 258 N. Y. 161; Taylor v. Hopper, 62 N. Y. 649; Haight v. Littlefield, 147 N. Y. 338; Smyles v. Hastings, 22 N. Y. 217; People ex rel. New York, W. & B. Ry. Co. v. Waldorf, 168 App. Div. 473.) II. Defendant had a legal right to remove the obstruction to the right of way and to make improvements therein. (Morse v. Swanson, 129 App. Div. 835.) III. It would be inequitable to grant to appellants the injunction they seek. (Forstmann v. Joray Holding Co., 244 N. Y. 22; McCann v. Chasm Power Co., 211 N. Y. 301; Hartshorn v. Chaddock, 135 N. Y. 116; Bomptin Realty Co. v. City of New York, 276 App. Div. 1094; Matter of Common Council of City of Brooklyn, 73 N. Y. 179.)
   Fboessel, J.

Plaintiffs are abutting owners on two sides of a cul-de-sac as laid out on a private subdivision map known as “ Map of Property at Long Beach, Nassau Co. N. Y. Belonging to Scheer-Long Beach Co. Inc. Section 6 ”, filed July 7, 1931, as Map No. 1091. Defendants are the owners of property, the rear portion of which abuts the cul-de-sac on its third side, which property is located on a different subdivision map, entitled ‘1 Map of Section 7. Scheer Long Beach, Belonging to Kuttner Bealty Co. Inc. ”, filed April 13, 1939, as Map No. 3953. Plaintiffs instituted this action to enjoin defendants from using the cul-de-sac for ingress or egress to and from their land, or for any other purpose, and for damages allegedly sustained by plaintiffs as a result of a concrete driveway having been placed on the southerly portion of said cul-de-sac by defendants.

Plaintiffs Sauchelli have title to the bed of the northerly side of the Bay Street cul-de-sac, the subject of this action, in front of their premises and to the center line only. The said plaintiffs, as well as the plaintiff Bikoff, who owns property on the southerly side, have an easement of access in said cul-de-sac. Defendants have no easement therein. The cul-de-sac was never condemned, dedicated or otherwise accepted by the Town of Hempstead, and it is not a public street (Nichols Copper Co. v. Connolly, 208 App. Div. 667, affd. 240 N. Y. 596; Drabinsky v. Seagate Assn., 239 N. Y. 321, 325; Matter of City of New York [East 177th St.], 239 N. Y. 119, 127, 128; De Witt v. Village of Ithaca, 15 Hun 568, 571; Matter of Mayor of City of N. Y., 188 N. Y. 581; Matter of City of New York [Northern Blvd.], 258 N. Y. 136, 147).

While the rear of defendants’ property abutted the cul-de-sac on its third or westerly side, it was laid out and located on a different subdivision map, made by a different owner, and filed eight years after the earlier map covering the adjoining tract which laid out Bay Street. Bach of said maps terminated the westerly end of the cul-de-sac by a solid line. Defendants have not shown an easement by necessity, inasmuch as they have ready access to Clayton Avenue, which is designated as the front of their property. Their claim that plaintiffs should not be granted the relief sought herein inasmuch as they are not paying taxes for their rights in the cul-de-sac is specious; nor is a showing of the cul-de-sac on the tax maps evidence of acceptance by the public authorities (Johnson v. City of Niagara Falls, 230 N. Y. 77, 85; Tax Lien Co. v. Schultze, 213 N. Y. 9).

The judgments should be reversed, and judgment directed in favor of plaintiffs only to the extent of restraining defendants and those claiming under them from using that part of Bay Street which is the subject of this action, for ingress and egress to and from the land owned by them or either of them, and the case remitted to special term for assessment of damages, if any, with costs.

Lewis, Ch. J., Conway, Desmond, Dye, Fuld and Van Voorhis, JJ., concur.

Judgments reversed, etc.


author: Lewis, Ch. J. Froessel, J.

text:
    Dorothy Rehill, Appellant, v. Lee M. Rehill, Respondent
    Argued October 6, 1953;
    decided December 3, 1953.

      Henry L. Bayles for appellant.
    I. The Nevada decree estops defendant from attempting to modify the separation agreement. (Schacht v. Schacht, 295 N. Y. 439; Hess v. Hess, 276 N. Y. 486; Hoyt v. Hoyt, 265 App. Div. 223; Goldberg v. Mayer, 243 App. Div. 477, 270 N. Y. 660; Fry v. Fry, 279 App. Div. 122, 304 N. Y. 889; Señor v. Señor, 187 Misc. 856, 272 App. Div. 306, 297 N. Y. 800; Fales v. Fales, 160 Misc. 799, 250 App. Div. 751.) II. Defendant’s inexcusaMe loches should estop him. (Lewis v. Lewis, 53 Nev. 398; Stewart v. Stewart, 198 App. Div. 337; Lynn v. Lynn, 302 N. Y. 193; Fritsch v. Rarback, 199 Misc. 356; Feldman v. Metropolitan Life Ins. Co., 259 App. Div. 123.) III. The claimed change of circumstances furnishes no basis for reduction of payments to plaintiff under the separation agreement. (Harwood v. Harwood, 182 Misc. 130, 268 App. Div. 974; Hoyt v. Hoyt, 276 App. Div. 995, 301 N. Y. 589; Graham v. Hunter, 266 App. Div. 576.) IV. The alleged accord and satisfaction have not been substantiated and are insufficient in law. (O’Meara Co. v. National Park Bank, 239 N. Y. 386; Hessian Hills Country Club v. Home Ins. Co., 236 App. Div. 615; Katsoris v. Durham House, 278 App. Div. 608; Geraci v. Fabbozi, 161 Misc. 450; Fry v. Fry, 279 App. Div. 122, 304 N. Y. 889; Coe v. Coe, 288 N. Y. 688; Mance v. Hossington, 205 N. Y. 33; Weed v. Spears, 193 N. Y. 289; Sexton v. Equitable Life Assur. Soc., 130 Misc. 362; Hess v. Hess, 276 N. Y. 486; O’Brien v. O’Brien, 252 App. Div. 427.) V. Summary judgment for the arrears in stipulated payments should have been granted. (Hess v. Hess, 276 N. Y. 486; Butler v. Marcus, 264 N. Y. 519; Hoyt v. Hoyt, 265 App. Div. 223; Goldberg v. Mayer, 243 App. Div. 477, 270 N. Y. 660; Fry v. Fry, 279 App. Div. 122, 304 N. Y. 889; Bauchle v. Bauchle, 185 App. Div. 590; McGean v. Parsons, 150 App. Div. 208.)

      Harold Davis for respondent.
    I. The motion for summary judgment was properly denied. (Muth v. Wuest, 76 App. Div. 332; Haskell v. Haskell, 207 App. Div. 723; Duryea v. Bliven, 122 N. Y. 567; Silkworth v. Silkworth, 255 App. Div. 226; Ambrose v. Kraus, 256 App. Div. 933; Harris v. Harris, 197 App. Div. 646; Matter of Noel, 173 Misc. 844; Sistare v. Sistare, 218 U. S. 1; Smith v. Smith, 255 App. Div. 652; Halsted v. Halsted, 228 App. Div. 298; Bowman v. Bowman, 271 App. Div. 943; Gehring v. Gehring, 262 App. Div. 1065; Muth v. Telenga, 264 N. Y. 477; Werfel v. Zivnostenska Banka, 287 N. Y. 91.) II. The order granting leave to amend the answer was based upon exercise of sound discretion of the court at Special Term. (Kirkbride v. Van Note, 275 N. Y. 244; Frost v. Frost, 189 Misc. 133.)
   Lewis, Ch. J.

The plaintiff-appellant instituted this action to recover arrears in payments alleged by her to be due under a written agreement dated February 29, 1944, which governed her separation from the defendant — then her husband — which agreement thereafter was ‘ ‘ ratified, approved and confirmed ’ ’ by a decree of absolute divorce rendered by a Nevada court. In this action the validity of that divorce decree is not questioned by the defendant.

The plaintiff’s complaint herein alleges in substance that by the separation agreement of February 29, 1944, the defendant agreed to pay her annually for the support and maintenance of herself and children the sum of $3,000 at the rate of $200 each month and $300 additional semiannually; that instead of making payments of $3,000 annually as required of the defendant by the separation agreement, he made the following payments between January, 1947, and the institution of this action in October, 1951: in 1947 — $1,940; in 1948 — $1,225; in 1949 — $700; in 1950 — $795; in 1951 — nothing. Accordingly, plaintiff demands herein judgment against the defendant for $9,840, being the balance due and unpaid by him under the terms of the separation agreement.

By his pleadings defendant has interposed defenses which include: (A) an alleged oral agreement of accord and satisfaction entered into with the plaintiff on or about January 1, 1948 (subsequent to the Nevada divorce decree) as the result of changes in circumstances of both parties and the emancipation of the two children of their marriage, by which oral agreement plaintiff released and discharged the defendant from payment of the sum of $460 in arrears for the year 1947 and agreed to accept a monthly payment of $100 from the defendant in full settlement and substitution for any other greater amounts required of him by the separation agreement of February 29, 1944; (B) an alleged breach of the separation agreement by plaintiff in that she evicted from her home one of the children of their marriage thereby compelling the child to suffer harm; and (C) a demand for reformation or rescission of the separation agreement based upon alleged mistake or fraud.

When pleadings had been served and the case was at issue the plaintiff applied at Special Term for an order pursuant to rules 113 and 114 of the Rules of Civil Practice striking out the defendant’s answer and directing entry of summary judgment in plaintiff’s favor for the relief demanded in the complaint, upon the grounds that there was no defense to the action and that the answer was sham and insufficient.

At Special Term the court denied plaintiff’s motion for summary judgment and granted defendant’s cross motion for amendment of his answer by allowing him to interpose a demand for reformation of the separation agreement but denied an amendment which would have permitted him to seek rescission of that agreement upon the ground of illegality.

At the Appellate Division the order of Special Term was affirmed (two Justices dissenting) and plaintiff’s application for leave to appeal to this court was granted upon the following certified questions:

(1) Did Special Term properly deny plaintiff’s application for summary judgment?

(2) Did Special Term properly deny plaintiff’s application for partial summary judgment?

(3) Did Special Term properly grant defendant’s application to amend his answer?

Our answer to the first of the above questions certified for our decision requires us to determine whether the following “ First Defense ” alleged by the defendant in his answer may be the subject of legal proof: “ That heretofore on or about the 1st day of January, 1948, plaintiff and defendant entered into an agreement of accord and satisfaction, and of settlement, wherein and whereby the parties agreed that the sum of $460.00 in arrears for the year 1947 was released and discharged, and that the plaintiff agreed.to accept the sum of $100.00 per month in full and complete settlement and substitution of and under the agreement of settlement attached to the complaint, and in lieu of any other greater or different payments set forth in said agreement; * * *”

Although the defendant’s answer gives January 1, 1948, as the date of the agreement by which defendant claims the plaintiff released and discharged him of arrears in payments required of him in the sum of $460, and that she thereby agreed to accept monthly payments of $100 in place and stead of $200 per month as required by the 1944 separation agreement, the original bill of particulars served by the defendant fixed the date of such alleged agreement as 1 ‘ in or about the year 1947 ’ ’, and a subsequent amended bill of particulars dated the agreement “on or about August 31, 1949.”

Without regard to the date of the alleged agreement, the operative fact is that by his original bill of particulars the defendant tells us that the contract by which the plaintiff modified the 1944 separation agreement was “ oral.” From that fact it follows as a matter of law that the agreement of modification alleged by the defendant is unenforcible because the sums allegedly due thereunder were liquidated amounts and the alleged release was neither in writing nor was it supported by consideration (Personal Property Law, § 33, subd. 2; Debtor and Creditor Law, § 243; Fuller v. Kemp, 138 N. Y. 231, 237; Schnell v. Perlmon, 238 N. Y. 362, 373; Fry v. Fry, 304 N. Y. 889).

In any event there is no basis on the record before us for any claim that an issue of fact exists as to whether plaintiff accepted eight monthly payments of $100 each in full settlement of the previously agreed upon payments of $200 a month. Entirely lacking is any showing entitled to consideration upon a motion for summary judgment, that defendant had made such reduced payments, totaling $800, pursuant to any agreement that they were to constitute or he deemed payment in full for, or in lieu of, the installments of $200 a month, aggregating $1,600, as provided for in and by the separation agreement (cf. McKenzie v. Harrison, 120 N. Y. 260).

The “ Second Defense ” pleaded by defendant’s answer is that plaintiff breached the separation agreement of 1944 by failing to provide a home for one of their two daughters as was required of the plaintiff; that the plaintiff compelled her daughter to “ leave the care and shelter of the plaintiff and to remain outside of the custody of said plaintiff.” Upon those alleged facts the defendant contends that the allegation in the complaint that plaintiff performed all obligations imposed upon her by the separation agreement is not true, and that plaintiff is thereby not in a position to bring the present action.

The record before us dictates a contrary conclusion. In the bill of particulars filed by the defendant he states that the plaintiff failed to provide a home for one of their daughters “ in or about 1949.” The separation agreement provides that “ The Wife shall have the sole custody and control of the children of the Husband and Wife and of their education during their minority * * *” (emphasis supplied). In this connection, an affidavit by the plaintiff states — without contradiction by the defendant — that the daughter “ * * * became 21 years of age on July 7, 1948 * * The plaintiff’s affidavit also states that if the daughter “ * * * desired to lead her own life apart after she became of age, there was nothing I could do to insist she remain at home, and her leaving was not due to any blame or neglect on my part.”

It thus appears of record, without contradiction, that plaintiff was obligated to provide a home for her daughter during her minority and that such daughter ceased to be a minor on July 7, 1948. If it be, as we are informed by defendant’s bill of particulars, that plaintiff ceased to provide a home for her daughter “in or about 1949 ” — when the daughter was no longer a minor — it follows that, although plaintiff may have evicted the daughter in 1949, she did not breach the separation agreement. Accordingly, the defendant’s second alleged defense presents no factual issue to be tried.

The “ Third Defense ” alleged in the defendant’s answer is that the sums required by the separation agreement to be paid by the defendant “ were intended by both parties thereto to continue at the rate mentioned therein [$200] so long as the two children mentioned therein were under the age of 21 years and for so long as the plaintiff maintained a separate home together with said children in which she would support and maintain them.” The simple answer to this defense is that the separation agreement contains no such provision. Instead, the second paragraph thereof provides that “ The Husband shall, during his life, pay to the Wife for her support and maintenance and for the support and maintenance of their children, until she shall die or remarry, the following * * * : (1) Two hundred dollars ($200.00) a month * * * ” (emphasis supplied). The separation agreement contains no provision for the termination of payments to the wife or a reduction thereof at any time other than upon the death or remarriage of the wife, or the death of the husband.

A majority of the Justices at the Appellate Division based their decision in part upon the rule that “ Parties may waive their rights under a contract or under a decree whether foreign or domestic when there is no law preventing waiver.” (281 App. Div. 855, 856.) We think, however, that rule is not applicable to the problem presented by this record wherein it appears that defendant’s answer alleges not waiver, but an oral modification by the parties of the terms of a written agreement (see Fry v. Fry, supra; Coe v. Coe, 288 N. Y. 688). Furthermore, even were we to construe allegations contained in the answer as alleging such a waiver by plaintiff as reduced the payments due her under the separation agreement, such waiver would consist of “ Matter tending only to mitigate or reduce damages ” which, under section 262 of the Civil Practice Act, falls within the definition of a “partial defense.” Under that statute any facts which the Appellate Division concluded presented a triable question of waiver, “ must be expressly stated to be a partial defense ” (emphasis supplied) in order to be admissible. (Fleckenstein v. Friedman, 266 N. Y. 19, 25.) No partial defense is “ expressly ” pleaded in defendant’s answer. Accordingly, we conclude that no triable issue of fact upon the question of waiver is presented by the record.

At Special Term defendant moved for leave- to serve an amended answer in which were contained claims for (1) reformation of the separation agreement, or in the alternative (2) rescission of that agreement.

Defendant’s proposed amended answer alleges, as the basis of his claim for reformation, that prior to the preparation of the separation agreement, and at a time when defendant was not represented by counsel, plaintiff and defendant agreed that the separation agreement would contain a clause to the following effect: “ That upon the attainment of age 21 by both children, or upon their marriage, or upon the event of the plaintiff’s failing to support and maintain said children, the obligation for payment of monies under said agreement by the defendant would be cut in half. ’ ’ The proposed amended answer further alleges that due to mutual mistake of the parties, or mistake by the defendant and fraud by the plaintiff, the agreement as written did not contain the above provision. It is alleged that the parties have practically construed the agreement as though it contained the : disputed provision. Accordingly, defendant seeks reformation of the-agreement so as to embody therein the allegedly omitted clause:

In support of his alternative claim for rescission of the separation agreement, defendant alleges that the agreement was illegal because its terms, plus the payment of $1,500 to his wife, was the price “ plaintiff placed upon her agreeing to divorce the defendant * * It is further alleged that “ in pursuance of the said illegal agreement, the defendant was compelled, by threats of harm, loss of position arid exposure to ridicule and shame, and by other acts of duress, to enter into the aforesaid illegal arrangement.”

As we have seen, the Justice at Special Term permitted the defendant to interpose his claim for reformation, but denied his request to amend the' answer so as to present his claim-for rescission. As the defendant has not appealed, we are not concerned with the propriety of the denial at Special Term of permission to interpose the rescission claim. We are solely concerned, upon plaintiff’s appeal; with the propriety of allowing defendant to present a claim for reformation of the agreement.

The agreement before us, which, as it now stands, was “ ratified, approved and confirmed ” by the Nevada court, may not be reformed by action brought in this State. While the Nevada court could doubtless entertain an action for reformation of the agreement, nevertheless were we to do so we would in effect be “ reforming ” the Nevada decree as well as the separation agreement, which we may not do. The Nevada decree, confirming as it did the agreement between the parties as it now stands, is entitled to full faith and credit. Thus, were we now to reform the agreement, we would in effect impair the Nevada judgment (Schacht v. Schacht, 295 N. Y. 439, 442; Fry v. Fry, supra). Accordingly, we conclude that it was error for Special Term to grant defendant’s motion so to amend his answer as to interpose the defense of reformation.

The order of the Appellate Division and the order of Special Term should be reversed, plaintiff’s motion for summary judgment should be granted, and the case should be remitted to Special Term for determination of the amount of arrears due under the separation agreement between the parties, with costs to appellant in all courts. The first and third questions certified by the Appellate Division are answered in the negative. The second question certified is not answered.

Froessel, J.

(concurring). In my opinion, a triable issue is raised with respect to the alleged agreement whereby plaintiff agreed to accept $100 per month in “ settlement and substitution ” for the previously agreed larger alimony payments insofar as it is claimed to have been executed by eight payments of $100 each from September, 1949, to May, 1950 (McKenzie v. Harrison, 120 N. Y. 260; Concourse & 191st St. Corp. v. Freiman, 276 App. Div. 131, 134). However, since such matter was not pleaded as a partial defense (Civ. Prac. Act, § 262), I concur in the result.

Coxway, Desmoxd, Dye and Fuld, JJ., concur with Lewis, Ch. J.; Froessel, J., concurs in separate opinion; Vax Voorhis, J., taking no part.

Orders reversed, etc.


text:
    Clarence Carruthers, Appellant, v. Jack Waite Mining Company, Defendant, and American Smelting and Refining Company, Respondent.
    Argued October 15, 1953;
    decided December 3, 1953.

      Samuel Masia and Archibald Palmer for appellant.
    I. Defendant mining company is not an indispensable party to the instant stockholder’s derivative action. (Cohen v. Dana, 287 N. Y. 405; Weinert v. Kinkel, 296 N. Y. 151.) II. Defendant mining company is a conditionally necessary party and being such its joinder is not necessary.

      Abraham M. Lowenthal and Leon Q. Telsey for respondent.
    I. Defendant mining company is an indispensable party to a stockholder’s derivative action in its behalf. (Brock v. Poor, 216 N. Y. 387; Flynn v. Brooklyn City R. R. Co., 158 N. Y. 493; Brinckerhoff v. Bostwick, 88 N. Y. 52; Doctor v. Harrington, 196 U. S. 579; New Jersey Central R. R. Co. v. Mills, 113 U. S. 249; Pennoyer v. Neff, 95 U. S. 714; Hanna v. Stedman, 230 N. Y. 326; Matter of Burge [Oceanic Trading Co.], 282 App. Div. 219; Bullowa v. Provident Life & Trust Co., 125 App. Div. 545; Hyams v. Old Dominion Co., 204 F. 681; Greaves v. Gouge, 69 N. Y. 154; Norman v. General Amer. Transp. Corp., 181 Misc. 233, 267 App. Div. 758.) II. There is no justification in the instant case for any exception to the general rule that defendant mining company is an indispensable party. (Freeman v. Bean, 243 App. Div. 503, 266 N. Y. 657; Goldberg v. Emanuel, 166 Misc. 610, 254 App. Div. 556; Cohen v. Dana, 287 N. Y. 405; Weinert v. Kinkel, 296 N. Y. 151; McClean v. Bradley, 282 F. 1011; Philipbar v. Derby, 85 F. 2d 27; Czarnikow-Rionda Co. v. Federal Sugar Refining Co., 255 N. Y. 33; Kerr S. S. Co. v. Radio Corp. of America, 245 N. Y. 284.) III. Continuance of this action without the presence of defendant mining company is not authorized by the Civil Practice Act. IV. The dismissal of the complaint against respondent by reason of failure to obtain jurisdiction over defendant mining company does not prejudice appellant. (Matter of Burge [Oceanic Trading Co.], 282 App. Div. 219.)
   Fboessel, J.

Plaintiff-appellant is a stockholder of the Jack Waite Mining Company (hereinafter called Waite), an Arizona corporation with its main office in Phoenix, Arizona, and a mailing address at P. O. Box 1832, Seattle, Washington. Waite is a mining company producing lead, silver and zinc, with mining property located in the State of Idaho and extending into Montana. Defendant American Smelting and Refining Company (hereinafter called American) is a New Jersey corporation with general offices at 120 Broadway, New York City. Among other activities kindred to mining, it leased and managed mining properties for others.

Plaintiff instituted, this stockholder’s derivative action on behalf of Waite, naming said company and American as defendants. The complaint alleges in substance the following facts: That on May 4, 1934, Waite and American entered into an agreement whereby American agreed to operate Waite’s mine for forty years upon the basis of a division of net profits; that American took possession of Waite’s mining property pursuant to the agreement; that American not only failed to perform all the terms and conditions of the agreement but also operated Waite’s property in a manner beneficial to American and damaging to Waite; that the officers and directors of Waite “ failed, neglected and refused ” to protect the interests of Waite and participated in the wrongs complained of; that no demand has been made upon the directors of Waite to bring this action since such demand would be futile; and that the agreement provided for the litigation of any disagreement in connection therewith in the State or Federal courts sitting in New York County, to the exclusion of any other courts, and that it be construed in accordance with New York law. The complaint demanded an accounting by American, that American be restrained from continuing to operate Waite’s mining property solely as a hedge for American’s benefit ”, that it be required to perform specifically ” the agreement, and finally ‘ ‘ cancellation ’ ’ of the agreement.

Plaintiff commenced this action by service of two copies of the summons and complaint upon an officer of American. He relied upon the afore-mentioned service as constituting service upon Waite on the theory that American is Waite’s managing agent. No other attempt was made to effect service upon Waite. Waite appeared specially and moved to vacate the service as to itself upon the ground that it was not subject to the jurisdiction of the Supreme Court, New York County. Waite’s motion was granted, thereby nullifying the purported service upon it.

At or about the same time, American moved for an order, purportedly pursuant to section 193 of the Civil Practice Act and rule 102 of the Rules of Civil Practice, dismissing the complaint for nonjoinder of Waite as an indispensable party ” defendant, by failure to obtain jurisdiction” over it, or, in the alternative, staying all proceedings until jurisdiction has been obtained over Waite. Special Term denied American’s motion, holding that Waite is a mere conditionally necessary party,’ whose presence under the provisions of Section 193 of the Civil Practice Act may be dispensed with because jurisdiction over said corporation may be obtained by this Court only through its consent or voluntary appearance ”.

Upon appeal, the Appellate Division, First Department, unanimously reversed and granted the motion, stating briefly that “ On all the circumstances disclosed, there is no basis in fact for departing from the usual rule that a corporation, in whose right and on whose behalf a stockholder’s suit is brought, is a necessary party defendant.” (281 App. Div. 956.) On this appeal, plaintiff contends solely that Waite is not an indispensable party but rather a conditionally necessary party whose joinder may be dispensed with.

The cause of action known as a stockholder’s derivative action belongs to the corporation and not to the stockholders individually or collectively (Clarke v. Greenberg, 296 N. Y. 146; Teich v. Lawrence, 291 N. Y. 245; Holmes v. Camp, 180 App. Div. 409; Chaplin v. Selznick, 186 Misc. 66). The stockholder is a mere nominal plaintiff — an instigator of the action on behalf of the corporation (Chaplin v. Selznick, 293 N. Y. 529, 532). Any recovery in such an action must run in favor of the corporation (Isaac v. Marcus, 258 N. Y. 257, 264). Accordingly, it has been held time and again, alike by the courts of this State and the Federal courts — and the treatise writers are in accord — that an existing corporation is an indispensable party to a stockholder’s derivative action (Cunningham v. Pell, 5 Paige Ch. 606; Greaves v. Gouge, 69 N. Y. 154; Mulligan v. Mulligan, 270 App. Div. 836; Marco v. Sachs, 201 Misc. 928; Norman v. General Amer. Transp. Corp., 181 Misc. 233, affd. 267 App. Div. 758; Druckerman v. Harbord, 174 Misc. 1077; King v. Wall & Beaver St. Corp., 145 F. 2d 377; Greenberg v. Giannini, 140 F. 2d 550; 4 Pomeroy on Equity Jurisprudence [5th ed.], § 1095, pp. 277-278; 13 Fletcher’s Cyclopedia Corporations, § 5997, p. 373 et seq.; 6 Thompson on Corporations [3d ed.], § 4650, p. 546 et seq.; see Price v. Gurney, 324 U. S. 100, 105).

We agree with the Appellate Division that Waite, a functioning corporation, is a “ necessary ” [sic], in the sense of an indispensable, party to a stockholder’s derivative action brought on its behalf. Plaintiff brought this action against Waite’s will, alleging that it was futile to make a demand of its directors. Among other things, he seeks an accounting, as well as cancellation of the operating agreement between Waite and American. Waite cannot be bound unless it is a party, and American is entitled to a judgment, whatever its form may ultimately be, which will bind Waite. Waite is a live, active corporation — not defunct or dissolved — and is amenable to process in the Federal courts in New York County (U. S. Code, tit. 28, §§ 1332, 1401, 1695).

The cases of Cohen v. Dana (287 N. Y. 405) and Weinert v. Kinkel (296 N. Y. 151) are not controlling here. In the Cohen case, we held that the complaint was improperly dismissed inasmuch as plaintiff stockholder should have been given full opportunity to petition the Delaware courts to direct the Delaware corporation, in whose behalf the action was instituted, to enter an appearance, or for some other form of relief. We expressly stated in that case that this court was not passing on whether the Delaware corporation was an indispensable party to the litigation. Nor is the Weinert case apposite herein. In that case we merely held that a defunct corporation, being a nonentity, was not an indispensable party to a stockholder’s derivative action.

Since Waite is clearly an indispensable party in this litigation, the complaint should not have been dismissed. Section 192 of the Civil Practice Act, as amended in 1946, prescribes that “No action or special proceeding shall be defeated by the nonjoinder or misjoinder of parties except as provided in section one hundred ninety-three.” (Matter italicized added by amendment.) Section 193, as amended the same year, defines an indispensable party and a conditionally necessary party and then provides: “2. When it appears that an indispensable party has not been joined, the court shall order such party brought in. If a party fails or neglects to bring in an indispensable party after a reasonable period granted to him to do so, the court shall dismiss the action without prejudice.” (Italics supplied.) As thus amended, subdivision 2 of section 193 solved the question left open by this court in Cohen v. Dana (supra) as to whether an action could be dismissed for nonjoinder of a party in spite of section 192 which at the time of that decision merely provided that “No action or special proceeding shall be defeated by the nonjoinder or misjoinder of parties ”. It provided in express terms the procedure to be followed before a dismissal could be had, and in nowise authorized objection to nonjoinder of a party by a motion to dismiss in the first instance.

Moreover, rule 102 of the Buies of Civil Practice, as also amended in 1946, implementing sections 192 and 193, expressly requires that an objection of nonjoinder “ be raised by a motion to add * * * parties ”. The language of rule 102 is mandatory, and provides the exclusive manner in which an objection of nonjoinder may be raised (City of New York v. Draper, 201 Misc. 957; Motyka v. Motyka, 113 N. Y. S. 2d 892). Indeed, the 1946 amendment to rule 102 did no more than to codify the prior decisions that the objection of nonjoinder may be raised only by a motion to add under rule 102 (Spaulding v. First Nat. Bank, 210 App. Div. 216, affd. 239 N. Y. 586; Pickhardt v. First Nat. Bank & Trust Co., 266 App. Div. 781; Sabol v. Frost, 217 App. Div. 254, 255; Friedman v. Board of Educ. of City of New York, 256 App. Div. 318, affd. 280 N. Y. 829; Kline v. 275 Madison Ave. Corp., 149 Misc. 747; Twelfth Annual Report of N. Y. Judicial Council, 1946, pp. 188-190). Thus nonjoinder of an indispensable party is not a ground for dismissal of a complaint in the first instance. Rather, the party complaining of the nonjoinder must initially move for the addition of such party, even though the ultimate relief granted upon such motion may be dismissal of the complaint * * * without prejudice ” (Twelfth Annual Report of N. Y. Judicial Council, 1946, pp. 189, 170-171; Wolff v. Brontown Realty Corp., 281 App. Div. 752). It is apparent therefore that American’s motion to dismiss the complaint herein on the ground of nonjoinder of Waite, an indispensable party, was clearly premature.

While Waite is a foreign corporation not subject to service of process in New York, and which has refused to appear voluntarily in the action, in consequence of which an order directing plaintiff to join Waite would appear to be futile, we are nevertheless bound by the procedure clearly enunciated by the Legislature in sections 192 and 193 of the Civil Practice Act and as implemented by rule 102 of the Rules of Civil Practice. To create an exception in the present case because of its particular circumstances would merely constitute judicial legislation in a field where the Legislature has acted, and would only tend to confuse the bench and bar as to a method of procedure which the Legislature has now made clear.

The judgment of the Appellate Division should be reversed, with costs in this court and in the Appellate Division, and the matter remitted to Special Term for further proceedings in accordance with this opinion, without prejudice to an appropriate motion under rule 102 of the Rules of Civil Practice.

Lewis, Oh. J., Conway, Desmond, Dye and Fund, JJ., concur; Van Voorhis, J., taking no part.

Judgment reversed, etc.


author: Desmond, J. Van Voorhis, J.

text:
    Sandra Cimo, Appellant, v. State of New York, Respondent.
    (Motion No. 2148.)
    Argued October 16, 1953;
    decided December 3, 1953.

      Charles J. Mistretta for appellant.
    I. Permission to file a claim within two years of accrual of the cause of action is authorized by the Court of Claims Act. (Wels & Zerweck v. State of New York, 174 Misc. 198; Beck Properties v. State of New York, 184 Misc. 148.) II. The claim accrued upon compliance with section 6 of the Grade Crossing Elimination Act. (Morrison & Quinn v. State of New York, 204 App. Div. 623; Paduano v. State of New York, 203 App. Div. 503; Taylor v. State of New York, 302 N. Y. 177; Mayright v. State of New York, 124 Misc. 682; Moltion v. State of New York, 193 Misc. 850; Tomasetti Constr. Co. v. State of New York, 186 Misc. 790; Waples Co. v. State of New York, 16 N. Y. Ct. Cl. 54, 178 App. Div. 357; Hollman v. State of New York, 171 Misc. 768; Phipps v. Village of North Pelham, 61 App. Div. 442.) III. Claimant has met all of the requirements of section 10 of the Court of Claims Act. (Olender v. State of New York, 194 Misc. 583; Farnham v. State of New York, 195 Misc. 380; Conti v. State of New York, 277 App. Div. 955; Webster v. State of New York, 257 App. Div. 902; Hencken v. State of New York, 196 Misc. 128; Mistretta v. State of New York, 280 App. Div. 960; Scully
      v. State of New York, 275 App. Div. 1016.) IV. The claim was timely filed. (Thompson v. State of New York, 258 App. Div. 758.)

      Nathaniel L. Goldstein, Attorney-General (John B. Davison and Wendell P. Brown of counsel), for respondent.
    The Court of Claims has no jurisdiction under subdivision 5 of section 10 of the Court of Claims Act to allow the late filing of a claim under section 6 of chapter 678 of the Laws of 1928. (Matter of Fammler v. Board of Zoning Appeals of Town of Hempstead, 254 App. Div. 777; Campbell v. Nassau Co., 273 App. Div. 785; Moller v. New York Central R. R. Co., 282 N. Y. 188; Askey & Hager v. State of New York, 240 App. Div. 451, 266 N. Y. 587; Beck Properties v. State of New York, 184 Misc. 148; Welz & Zerweck v. State of New York, 174 Misc. 198.)
   Desmond, J.

Claimant-appellant Cimo, the owner of real property in the village of Falconer, New York, appeals here from a unanimous order of the Appellant Division, Fourth Department, which reversed, on the law, an order made by the Court of Claims, which Court of Claims order had granted claimant’s motion purportedly made under subdivision 5 of section 10 of the Court of Claims Act (L. 1939, ch. 860), for permission for late filing of her claim. Since the Appellate Division’s reversal was stated to be “ on the law ”, there is no question of discretion here, and we need not discuss the factual showing made in claimant’s moving affidavit as a basis for the relief prayed for, but can confine ourselves to the question of law.

The proposed claim which claimant asked leave to file is for alleged damage to her real property, occasioned by a change of grade of the street in front of her property, in connection with a grade crossing elimination structure, construction of which was by defendant State of New York. It is undisputed that claimant did not file any claim with the Court of Claims until more than six months after the completion of the elimination project, and the question of law is as to whether that delay is fatal. Claimant says that she comes within subdivisions 4 and 5 of section 10 of the Court of Claims Act, which require filing, within six months, of certain claims, but give the Court of Claims discretionary power to permit late filing within two years after the accrual of the claim. On the other hand, the State says that, under section 6 of the “ Grade Crossing Elimination Act ” of 1928 (L. 1928, ch. 678), six months is the absolute limit, for filing of such a claim as this. Section 6 is part of an elaborate statutory system, enacted in 1928, covering the elimination of grade crossings, and the whole of section 6 deals with damage done to properties not actually taken by the State in the course of such improvements. The Court of Claims took the view, apparently, that this claim of Mrs. Cimo, although plainly one of those described in section 6 was, also, one of the claims listed in subdivision 4 of section 10 of the Court of Claims Act, as being ‘ ‘ any other claim not otherwise provided for by this section, over which jurisdiction has been conferred upon the court of claims ”, and that, being such a claim, there would be applicable thereto the provision of subdivision 5 of section 10 of the Court of Claims Act which permits late filing, on a judge’s order, up to two years from accrual, whereas section 6 has an absolute deadline of six months from the date of project acceptance.

The Appellate Division’s opinion, on the other hand, ruled that, since there is in section 6 a separate special provision, absolutely limiting to six months the time for filing a grade crossing elimination claim for damage to lands not taken, this special provision controls over the later but more general provisions of section 10 of the Court of Claims Act on which claimant relies. The following are the pertinent parts of the statutes in question:

Court of Claims Act.

§ 10. Time of filing claims and notices of intention to file claims.

4. A claim for breach of contract, express or implied, and any other claim not otherwise provided for by this section, over which jurisdiction has been conferred upon the court of claims, shall be filed within six months after the accrual of such claim, unless the claimant shall within such time file a written notice of intention to file a claim therefor in which event the claim shall be filed within two years after such accrual.

5. A claimant who fails to file a claim or notice of intention, as provided in the foregoing subdivisions, within the time limited therein for filing the notice of intention, may, nevertheless, in the discretion of the court, be permitted to file such claim at any time within two years after the accrual thereof, or in the case of a claim for wrongful death within two years after the decedent’s death.”

Grade Grossing Elimination Act (L. 1928, ch. 678).

§ 6. If the work of such elimination causes damage to property not acquired as above provided, the state shall be liable therefor in the first instance, but this provision shall not be deemed to create any liability not already existing in law. Claims for such damage may be adjusted by the department of public works with the approval of the railroad corporation or corporations and the county or counties bearing a part of the cost of the elimination if the amount thereof can be agreed upon with the persons making such claims, and any amount so agreed upon shall be paid as a part of the cost of such elimination as prescribed by this act. If the amount of any such claim is not agreed upon, such claim may be presented to the court of claims which is hereby authorized to hear such claim and determine if the amount of such claim or any part thereof is a legal claim against the state and if it so determines, to make an award and enter judgment thereon against the state, provided, however, that such claim is filed with the court of claims within six months after final approval of the elimination work by such commission.”

Thus, not only does section 6 contain a specific limitation of six months on the time for filing this precise kind of claim, but that limitation is found in the very same sentence with the grant of jurisdiction to the Court of Claims to hear such a claim. If it were not for section 6, there would, concededly, be no liability at all, on the State, for change of grade damages caused by grade crossing eliminations. At common law, no such damages were recoverable (Matter of Lawrence v. Village of Mamaronech, 263 N. Y. 455), but, later, a provision of the Village Law, changed that, as to grade changes in .villages like this one,, and made the villages liable therefor (see Matter of Torge v. Village of Salamanca, 176 N. Y. 324, 327, 328; Mistretta v. State of New York, 201 Misc. 946, affd. 280 App. Div. 960; Village Law, § 159, subd. 2). Still later, by section 6 (supra) the State assumed this liability as to grade crossing eliminations but, in assuming it, imposed the condition, as aforesaid, that there should be no liability unless a claim should be filed with the Court of Claims within six months after final approval of the elimination work by the Public Service Commission (see Moller v. New York Central R. R. Co., 282 N. Y. 188).

We turn to appellant’s argument. She admits that jurisdiction in the Court of Claims to grant awards against the State for such claims, and liability of the State for such claims, was created by section 6 (supra), but, she says, though liability had so been created, the claim, when it arose, was one falling within the language of subdivisions 4 and 5 of section 10 of the Court of Claims Act (supra) as being “ any other claim not otherwise provided for by this section ”. Claimant, of course, cannot deny that the very statute (§ 6, supra) which set up the State’s liability for, and conferred jurisdiction as to, such claims, set a limit of six months for filing such claims, so, if there were anything at all to the argument, there would be, as the Appellate Division pointed out, two separate limitation periods for these claims, one in each statute, and a claimant would (following this argument to its necessary conclusion) have a choice between them. We think it obvious that the Legislature could not have intended such duality.

The only other form of reasoning, by which claimant can reach the result she contends for, is by urging that the time limitation fixations in subdivision 5 of section 10 repealed, by implication, the express time limitation of section 6. As we know, ‘ ‘ repeal by implication is not favored and will be decreed only where a clear intent appears to effect that purpose ” (City of New York v. Maltbie, 274 N. Y. 90, 97; see Naramore v. State of New York, 285 N. Y. 80, 84; Moritz v. United Brethrens Church, 269 N. Y. 125, 133). Such repeals will not be discovered unless the conclusion is unavoidable, as when repugnancy between the two statutes is plain (People v. Dwyer, 215 N. Y. 46, 51; Peterson v. Martino, 210 N. Y. 412, 418). The absence of an express provision in a later statute, for repeal of an earlier one, gives rise to a presumption that repeal was not intended (Chatham Phenix Nat. Bank v. Crosney, 251 N. Y. 189). If by any fair construction, both statutes can be given operation, implied repeal will not be declared (Matter of Tiffany, 179 N. Y. 455, 457). More directly related to our problem, the settled rule is: a more general statute (like Court of Claims Act, § 10, subds. 4, 5) will not repeal a more specific one (like Grade Crossing Elimination Act, § 6) unless there be patent inconsistency and the two cannot stand together, so that the Legislature is clearly shown to have intended such a result (People ex rel. Fleming v. Dalton, 158 N. Y. 175, 184; People ex rel. Savory, Inc., v. Plunkett, 295 N. Y. 180, 183).

There are other reasons why it cannot be held that subdivisions 4 and 5 of section 10 (supra) repealed the time limitation in section 6 (supra). Subdivisions 4 and 5 of section 10 were enacted in substantially their present form in 1936 (see L. 1936, ch. 775). The Grade Crossing Elimination Act, including section 6, had been passed as chapter 678 of the Laws of 1928. At the time the Grade Crossing Elimination Act was put on the books, the provision of the Court of Claims Act as to claims not otherwise provided for ” was in section 15, and section 15 had the same time limitation — six months without any discretionary extension (see L. 1921, ch. 474, amdg. L. 1920, ch. 922) — that the Legislature put into section 6, in 1928. In other words, when, in 1928, the time limitation for filing various miscellaneous claims with the State was six months, with no extension, the Legislature imposed that same short limitation on the newly created claims for change of grade. Later on, when the Court of Claims Act was subjected to amendments, including the enactment of subdivisions 4 and 5 of section 10 (supra), the time limitations were liberalized as to certain contract and other miscellaneous claims, by giving discretion to the court to extend the time beyond six months, but no such liberality was displayed as to grade crossing project elimination claims for change of grade. It must be significant that the State, not in the Court of Claims Act, but as part of a new statutory scheme whereby the State took over major responsibility for grade crossing elimination, assumed, for the first time, liability for change of grade claims, but in that very section, indeed, in the same sentence of the section, it included, and never after-wards changed, the provision that such claims had to be filed within six months after approval of the work. This, therefore, is a case where the time limitation is part of a new cause of action, and there is no reason whatever to apply to it another general time limitation found in an entirely different statute. When the Legislature creates a new right of action, otherwise unknown to the law, and in the statute of creation imposes a time limitation, that limitation is part of the grant of power and the bringing of .such an action is subject to that limitation and no other (Gatti Paper Stock Corp. v. Erie R. R. Co., 247 App. Div. 45, 47, affd. 272 N. Y. 535; Engel v. Davenport, 271 U. S. 33, 38; 1 Wood on Limitations [4th ed.], § 9, p. 41; see Travelers Ins. Co. v. Padula Co., 224 N. Y. 397, 402; see Matter of Meng, 227 N. Y. 264, 276). A persuasive analogy is to actions under section 130 of the Decedent Estate Law for wrongfully causing death; since that statute requires suit within two years after the decedent’s death ”, a more liberal general limitation such as that of section 11 of the Civil Practice Act may not be availed of (Jones v. 416 Pleasant Ave. Holding Corp., 304 N. Y. 893).

Six months seems a very short limitation as to any sort of claim or suit, and we do not know the precise reason for its use by the Legislature in this instance. Probably, the reason is that the total cost of such a grade crossing elimination is fixed by the Public Service Commission and then borne, in certain proportions, by the State, the railroad or railroads, and the county or counties in which the crossing is located, a fixation and distribution of cost which cannot be completed until all items of cost, including any damage for change of grade, are finally determined. And, also, we know that it is quite customary and traditional to make very brief the time for filing such claims (see, for instance, Highway Law, § 197; Village Law, § 159, subd. 3; Administrative Code of City of New York, § 307a-3.0; Buffalo City Charter, § 367; Rochester City Charter, § 121).

The order should be affirmed, without costs.

Van Voorhis, J.

(dissenting). No obstacle appears to exist which prevents applying the more liberal provision of the 1939 amendment of the Court of Claims Act (§ 10, subds. 4, 5) to grade crossing elimination claims, wMch appears to have been the intention of the Legislature in view of the statement in subdivision 4 of section 10 of the Court of Claims Act, that section 10 applies to all claims over which jurisdiction has been conferred upon the Court of Claims. The Grade Crossing Elimination Act does just that in the case of claims of the type now before the court (L. 1928, ch. 678, § 6).

Lewis, Ch. J., Conway, Dye, Fuld and Froessel, JJ., concur with Desmond, J.; Van Voobhis, J., dissents and votes to reverse in a memorandum.

Order affirmed.