author: Andrews, J.

text:
    In the Matter of Joseph I. Green, Respondent, against Julius Miller, as President of the Borough of Manhattan, City of New York, Appellant.

      (Argued May 29, 1928;
    decided July 19, 1928.)

      George P. Nicholson, Corporation Counsel (Elliot S. Benedict, Benjamin Millstein and J. Joseph Lilly of counsel), for appellant.
    The encroachments in question, having been originally constructed after permission duly given by the appropriate city officers in accordance with the statutes and ordinances in force at the time, were not unlawful obstructions or public nuisances per se and could not be so determined in fact until after a trial of the issues. (People v. 131 Boerum St. Co., 233 N. Y. 268; Hoey v. Gilroy, 129 N. Y. 132; Pulitzer v. City of New York, 48 App. Div. 6; Kent v. Jamestown St. Ry. Co., 205 N. Y. 361; Gorgensen v. Squires, 144 N. Y. 280; Wormser v. Brown, 149 N. Y. 163; Murphy v. Leggett, 29 App. Div. 309; 164 N. Y. 121; Devine v. Nat. Wall Paper Co., 95 App. Div. 194; 182 N. Y. 565; Lincoln Safe Deposit Co. v. City of New York, 210 N. Y. 34; Matter of Low, 233 N. Y. 334; Ackerman v. True, 175 N. Y. 353; City of New York v. Rice, 198 N. Y. 124; People ex rel. Browning, King & Co. v. Stover, 145 App. Div. 259; 203 N. Y. 613; Acme Realty Co. v. Schinasi, 215 N. Y. 495.) The owner, and doubtless the tenants, are necessary parties to the proceedings herein if the petitioner has any right to bring them. (Parish v. Baird, 160 N. Y. 302; Lincoln S. D. Co. v. City of New

      York, 210 N. Y. 34; People ex rel. Cooke v. Stewart, 77 App. Div. 181; People ex rel. Walsh v. Kleinert, 200 App. Div. 836; Steuart v. Palmer, 74 N. Y. 183; Health Dept. v. Rector, 145 N. Y. 32.) A clear legal right to the relief demanded was not shown by the petitioner and consequently he was not entitled to the order obtained below. (People ex rel. Cross v. Ahearn, 124 App. Div. 840; City of New York v. Childs, 84 N. Y. Supp. 164.)

      A. Norman Somers and Joseph I. Green for respondent.
    The admittedly existing encroachments, projections and incumbrances upon the public highway, as described in the petition and revealed in the exhibits, are both a public and a private nuisance and are illegal. The permits of the board of aldermen and the superintendent of buildings alluded to in appellant’s answering affidavit for the construction of some of the projecting structures do not make them legal or render them any less a public nuisance. (People ex rel. Browning, King & Co. v. Stover, 145 App. Div. 259; 203 N. Y. 613; Ackerman v. True, 175 N. Y. 353; People ex rel. Ackerman v. Stover, 138 App. Div. 237; Acme Realty Co. v. Schinasi, 154 App. Div. 397; 215 N. Y. 495; City of New York v. Rice, 198 N. Y. 124; Deshong v. City of N. Y., 176 N. Y. 475; People ex rel. Cross Co. v. Ahearn, 124 App. Div. 840; City of N. Y. v. Knickerbocker Trust Co., 104 App. Div. 223; McMillan v. Klaw & Erlanger Const. Co., 107 App. Div. 407; Brown-Brand Realty Co., Inc., v. Saks & Co., 126 Misc. Rep. 336; 218 App. Div. 827.) The petitioner as an adjoining owner and as an injured party is entitled to a mandamus against the borough president compelling him to remove the illegal encroachments and he need not bring in the owner of the property in front of which the said encroachments exist as a party to a proceeding of this nature. (People ex rel. Ackerman v. Stover, 138 App. Div. 237; People ex rel. Cross Co. v. Ahearn, 124 App. Div. 840; People ex rel. Pumpyansky v. Keating,
      160 N. Y. 390; People ex rel. Cooke v. Stewart, 71 App. Div. 181; People ex rel. Walsh v. Kleinert, 200 App. Div. 836.)
   Andrews, J.

The President of the borough of Manhattan has been ordered to serve notice upon the owner of a building ordering her to remove certain alleged street encroachments which are said to extend beyond the building line. What they are is stated with particularity. One, for instance, is a box stoop extending at right angles from the building line on Lexington Avenue, about seven feet on both sides thereof into the public highway on Lexington Avenue, said box stoop being about 16 feet wide and 10 feet high.” Another is a bay window described with equal minuteness. If these structures are not then removed by the owner, Mr. Miller is directed to remove them himself at her expense.

This order is the result of an application for a peremptory mandamus made by Mr. Green as a citizen and taxpayer of New York. Owning, as he does, adjoining property, he says such alleged encroachments constitute both a public and a private nuisance. Of the latter allegation we need take no notice. This proceeding would not be appropriate to protect his individual interests. But the court below, notwithstanding denials by the defendant, that the owner has in fact created a public nuisance, or apparently that her erections encroach upon the street, has assumed the commission of a wrong by her. And this, when she is not a party to the proceeding and has been given no opportunity to disprove the assertion. Should Mr. Miller tear down a portion of her building, if in fact no illegal encroachments exist, he is a trespasser. No order such as this will shield him. (People ex rel. Copcutt v. Board of Health, 140 N. Y. 1.) Naturally he objects.

No such order can be sustained without the presence of the owner in court. The city may at all times abate a public nuisance. No decree of the court is required. But this power rests upon the fact that a public nuisance does exist. So, too, where the official is negligent, the court doubtless may by mandamus compel him to do his duty.' It will not require him to interfere with private property, however, unless concededly it is a nuisance or unless the owner has an opportunity to be heard upon the subject.

Here we have nothing but the claim of the petitioner. This stoop or this bay window may project over the building line. The owner has not been permitted to .raise this issue. They may exist with the rightful permission of the authorities. She has not said.

We know of no controlling authority for a peremptory order of mandamus under such circumstances. Indeed, many cases in this State and elsewhere are to the contrary. (People ex rel. Cooke v. Stewart, 77 App. Div. 181; People ex rel. Title Guarantee & T. Co. v. Ruoff, 159 App. Div. 819; People ex rel. Francis v. Common Council, 78 N. Y. 33; People ex rel. Bacon v. N. C. Ry. Co., 164 N. Y. 289; Louisiana v. Jumel, 107 U. S. 711, 727; Kent v. County Comrs. of Essex Co., 27 Mass. 521; State ex rel. Sheridan v. Van Winkle, 43 N. J. Law, 579; People ex rel. Crossey v. Townsend, 218 N. Y. 615.) In People ex rel. Ackerman v. Stover (138 App. Div. 237) certain obstructions had been already declared a public nuisance by this court in an action brought against the owner.

But we find even more serious difficulty with this order. We are told that an encroachment over the street line, even the slightest, is a public nuisance. No revocable license may be given for its maintenance. Any taxpayer may compel the authorities to abate it. If so, the consequences are far reaching, and we hesitate to come to such a conclusion without the most careful thought. -

We are not met here with a municipal order requiring all structures to be set back to the street line. Doubtless, the city may revoke any license it may have given. * But it makes no objection. We are faced with the proposition that no discretion whatever exists. The city of New York may not permit any occupation whatever of the space in or over a public street.

The title of the streets of New York is held by the city primarily in trust to promote traffic and transportation. An unauthorized use of them by individuals is illegal. But of them the Legislature has paramount control. Certainly it may allow their use for any public purpose not inconsistent with street needs — for the erection of telegraph poles (American Rapid Tel. Co. v. Hess, 125 N. Y. 641) — for surface, elevated or underground railways — for many other things. It may close them entirely, if that be wise. It may do more. It may authorize structures in public streets for private benefit, which are incident to ordinary street uses, which do not unreasonably interfere with traffic, and which have been sanctioned by long usage. An encroachment without such a permit, with it they are such no longer. (Bradley v. Degnon Contracting Co., 224 N. Y. 60; Matter of McCoy v. Apgar, 241 N. Y. 71; Wormser v. Brown, 149 N. Y. 163.)

It is to be observed, however, that we deal solely with the authorized occupation of the street, regarded as a public nuisance. If such occupation is injurious to private rights, as to them the legislative power does not extend. (Cogswell v. R. R., 103 N. Y. 10; Ackerman v. True, 175 N. Y. 353; Bradley v. Degnon Contracting Co., supra.)

The Legislature having the power to permit as against the public such uses of the street, may confer it upon the city of New York. (Matter of McCoy v. Apgar, supra; People ex rel. City of N. Y. v. N. Y. Rwys. Co., 217 N. Y. 310; Hoey v. Gilroy, 129 N. Y. 132; Wormser v. Brown, supra; Jorgensen v. Squires, 144 N. Y. 280.)

The ultimate question, therefore, is whether such power has been in fact given to the city, for the opinion below states that the bay windows, areaways and stoop complained of were erected by municipal consent granted in 1882. Further it fails to appear that the remaining structures have not existed for such a period that the like consent is to be implied.

The Greater New York Charter says that streets and other public places in the city shall be inalienable (sec. 71). No local authority may grant the right to occupy them permanently. (Ackerman v. True, 175 N. Y. 353.) The most it may give is a license, revocable under proper conditions, if that power be elsewhere conferred upon it. And the same thing was true before this express prohibition. There was never authority permitting the city to alienate any part of its streets.

A revocable license, however, is a different matter. For many years the streets have been bounded by a so-called building line. The location of this Une appears on an official map. (Charter, sec. 438, etc.) For many years also some private use of street areas has been permitted. Stoops, steps, areaways, cellar openings, vaults, awnings, bay windows, cornices connected with adjoining buildings, and not unreasonably interfering with traffic, have all existed. As they must be removed on demand of the city in actions for specific performance, the existence of many have been held to make the title to the adjoining building unmarketable; but their presence has not been supposed to create a public nuisance whose removal would be compelled by the courts at the instance of any taxpayer.

Nor do they create such a nuisance if erected by permission of the city. In construing the charter we are not to forget long-continued custom and practice. We are to remember that a city has not only the powers specifically conferred but also such as are necessarily incident to or as may be fairly implied from those powers. (Village of Carthage v. Frederick, 122 N. Y. 268.) General control of the streets is given to the Board of Aldermen. (Charter, sec. 50.) It may regulate their use for signs, awnings and other purposes and the existence of stoop lines ” is recognized. There is also reference to “ authorized structures, encroachments or obstructions ” therein, and the issuance of revocable licenses therefor. “ Stoop lines ” were no innovation. (Consolidation Act, sec. 86.) All powers and duties of the Common Council or Aldermen of the several corporations united to form the greater city, possessed by them in 1897, unless otherwise provided by the charter, are conferred on the new board. (Sec. 42.) This board may adopt such ordinances as to buildings as it may think necessary and proper for the good government, order and protection of property and the preservation of peace and prosperity. (Sec. 43.) Further no enumeration of powers is to be held as limiting the legislative power of the board, unless specifically so provided. (Sec. 44.) The Building Code in force in 1902 is declared to be binding. (Sec. 407.) It with its amendments has the force of a statute. (City of New York v. Trustees, 85 App. Div. 355; affd., 180 N. Y. 527.) Article 9 of the Building Code adopted in 1915 deals with projections beyond the building line. It refers to areas, steps, columns and ornamental projections, cornices, awnings, fire escapes and vaults. For them revocable permits may be given. Finally it is said that “ such parts of buildings which already project beyond the building line may be maintained as constructed until their removal is directed.”

It is claimed, however, that these provisions are wholly unauthorized because of one sentence contained in section 50. The Board of Aldermen shall not have the power to authorize the placing or continuing of any encroachment or obstructions upon any street or sidewalk, except the temporary occupation thereof during the erection * * * of a building.” The same provision was in the Consolidation Act (sec. 86).

That means illegal or permanent encroachments or obstructions. That this is so is best illustrated by our decisions. Cellar ways may be allowed by the city (Jorgensen v. Squires, supra). So may iron platforms (Murphy v. Leggett, 164 N. Y. 121); newsstands (People ex rel. Pumpyansky v. Keating, 168 N. Y. 390); vaults and areaways (City of New York v. de Peyster, 120 App. Div. 762; affd., 190 N. Y. 547; Lincoln S. D. Co. v. City of New York, 210 N. Y. 34; Devine v. National Wall Paper Co., 182 N. Y. 565); awnings (Hoey v. Gilroy, supra); bay windows (Wormser v. Brown, supra; Heymann v. Steich, 201 N. Y. 578); bay windows and stoops (Broadbelt v. Loew, 162 N. Y. 642); stoops (Levy v. Hill, 174 N. Y. 536); bay windows, oriel windows, show windows, stoops and porticos (Acme Realty Co. v. Schinasi, 215 N. Y. 495). Permits for some of these obstructions are expressly mentioned in the charter; others are not.

The result seems to be that while the city may not alienate its streets by any permanent grant or permission, yet it may give a revocable license to construct such as by long usage have become familiar to us as necessary or convenient for the enjoyment of abutting property, provided they do not unreasonably interfere with street traffic. Some permits are on their face so unreasonable that they are not allowed. Such are the right to store delivery wagons in the street (Cohen v. Mayor, etc., 113 N. Y. 532); or to place the wall of a building in the highway (Ackerman v. True, supra; City of New York v. Rice, 198 N. Y. 124). Yet it may be observed that what was said in both these last cases was obiter. For in the former the action was brought to recover for private injuries and in the second it was brought by the city itself. In the Schinasi case, the opinion of Mr. Justice Clarke, referred to here with approval, has reference to a masonry bay window, over the building line. He said it made the title of the property defective as the city might not give a permit that would allow its permanent retention as eoncededly it might not. Our reference on appeal to stoops, however, shows we did not regard it as necessarily a public nuisance. It is always to be remembered that broad general statements in any opinion are to. be read in connection with the facts of the particular case before the court.

The order of the Appellate Division and that of Special Term should be reversed and the petition dismissed, with costs in all courts.

Cardozo, Ch. J., Pound, Crane, Lehman, Kellogg and O’Brien, JJ., concur.

Order reversed, etc.


source: Caselaw Access Project

author: O’Brien, J.

license: Public Domain

text:
    Kingsbridge Improvement Co., Inc., Appellant, v. The American Exchange-Pacific National Bank, as Trustee, et al., Respondents.
    (Argued June 6, 1928;
    decided July 19, 1928.)
    I. Maurice Wormser, Seymour Mork and Phillip Wellins for appellant.
    The correspondence between plaintiff and the bank constitutes a complete memorandum of the agreement between the parties, which in every way complies with the Statute of Frauds. (Cooley v. Lobdell, 153 N. Y. 596; Lukawski v. Devlin, 243 N. Y. 583;
      Wertheimer v. Boehm, 241 N. Y. 575; Roskam-Scott Co. v. Thomas, 175 App. Div. 84; Pomeroy on Specific Performance of Contracts [3d ed.], § 90; Marks v. Cowdin, 226 N. Y. 138; Wilson v. Lewiston Mill Co., 150 N. Y. 314; Gates v. Dudgeon, 173 N. Y. 426; Delaware Mills, Inc., v. Carpenter Bros., 200 App. Div. 324; 235 N. Y. 537; Newburger v. American Surety Co., 242 N. Y. 134; Poel v. Brunswick-Balke-Collander Co., 216 N. Y. 310; Duncan v. Wohl, South & Co., 201 App. Div. 737; Mentz v. Newwitter, 122 N. Y. 491.)

      Frank C. Laughlin and Stewart W. Bowers for Adele G. Beck, respondent.
    The correspondence between the defendant bank and plaintiff’s agents does not constitute a memorandum in writing of the contract to sell the real property in question sufficient to satisfy the Statute of Frauds, which is available as a defense to the defendant Beck. (People ex rel. Warchauer v. Dalton, 159 N. Y. 65; Matthews v. Matthews, 154 N. Y. 288; Rice v. Manley, 66 N. Y. 82; Stitt v. Ward, 142 App. Div. 626; Brauer v. Oceanic Steam Nav. Co., 178 N. Y. 339; Levin v. Dietz, 106 App. Div. 208; Williamsburg City F. Ins. Co. v. Lichtenstein, 181 App. Div. 681; Ettlinger v. Persian Rug & Carpet Co., 142 N. Y. 189; O'Brien v. Alleghany & Kinzua R. R. Co., 151 N. Y. 372; Beveridge v. N. Y. El. R. R. Co., 112 N. Y. 1; Burns v. Niagara, L. & O. Co., 145 App. Div. 280; Fleischman v. Fleischman, 54 App. Div. 202.)

      Brison Howie for American Exchange-Pacific National Bank, respondent.
   O’Brien, J.

The action is for specific performance of a contract for the sale of real property the legal title to which had been vested in defendant bank as trustee for Adele G. Beck. Both the bank and defendant Beck moved at Special Term for a dismissal of the complaint upon the ground that the contract is unenforcible under the Statute of Frauds. Miss Beck moved upon the additional ground that, prior to the date of the alleged execution of the contract, the trust under which the bank held title to the realty had been revoked. These motions were denied but the Appellate Division reversed and dismissed the complaint upon both grounds urged by defendant Beck. Her counsel, as well as plaintiff’s, devotes much learning to the question of the revocability of the trust. We are of the opinion that the record does not clearly disclose the fact of revocation, and, therefore, we ought not to discuss a subject which, as far as this case is concerned, is moot. Miss Beck did attempt on September 3, 1925, to revoke the trust both as to realty and personalty and in a letter of that date addressed to the trustee she demanded a reconveyance and delivery of the realty and personalty. No conveyance of the realty was ever made, but the bank instituted an action against her in which it alleged its inability safely to determine the proper course to pursue and prayed for judgment in the premises. On October 23, 1925, an order in that action granting a motion for judgment on the pleadings was entered at Special Term by which the trust in its entirety was decreed to be revoked and canceled as of September 10, 1925. However, the judgment entered November 10 upon the order of October 23 adjudged revocation only as to the personalty. That judgment resulted from a stipulation between the attorneys for the bank and Miss Beck in which provision was made for a fixed rate of compensation to the trustee in the event of sale of the realty. Until November 25, the bank continued its negotiation for the sale. Its counsel suggests in its brief on this appeal facts from which we might infer that Miss Beck’s notice of revocation as to the realty was withdrawn. The evidence in relation to such agreement as they may have made in respect to revocation is not so clear as to warrant a decision on the law. Their acts have not been proved with that degree of certainty which is requisite for an award of judgment on the pleadings and, accordingly, we will not rule on the question of power to revoke. We reserve that question until necessity for actual decision arises. If the Appellate Division correctly dismissed the complaint for any reason, the judgment should be affirmed.

We entertain no doubt that the complaint was properly dismissed. No complete agreement between plaintiff and the bank was ever reached. Their correspondence states that a final contract is thereafter to be made and its form does not fairly permit the inference that there were not details yet unsettled. One of these matters was the plaintiff's responsibility, for the bank wrote that acceptance of the offer was on condition that plaintiff would furnish such a statement of assets, liabilities and net worth as would be satisfactory to the bank. We cannot say that there were not other matters left open for the formal writing. Plaintiff has failed to prove a complete written agreement. (Ansorge v. Kane, 244 N. Y. 395; Keystone Hardware Co. v. Tague, 246 N. Y. 79.) It has proved nothing more than an uncompleted conditional agreement.

The judgment should be affirmed, with costs.

Cardozo, Ch. J., Pound, Crane, Andrews, Lehman and Kellogg, JJ., concur.

Judgment affirmed.


author: Per Curiam.

text:
    Henry Moritz, Respondent, v. J. Eisner & Sons, Inc., Appellant.

      (Argued May 11, 1928;
    decided July 19, 1928.)

      Walter H. Pollak, J. Charles Weschler and Ruth I. Wilson for appellant.
    The trial court erred in its determination as to the meaning of the term “ net cost of manufacture.” (Lyttle, Campbell & Co. v. Somers, 276 Penn. St. 409; Winston & Co. v. Clark County Constr. Co., 186 Ky. 743; Meulenbergh v. Coe, 160 N. Y. Supp. 581; Haley v. S. S. “Comox,” 20 Can. Exch. 86; Hoggson Bros. v. Spiekerman, 175 App. Div. 144.)

      Isaac N. Jacobson and David May for respondent.
    The clause permitting the defendant to determine differences of opinion as to profits of the selling branch, is qualified by the clause fixing a specific method of charging for merchandise delivered by the manufacturing branch to the selling branch. (Simon v. Etgen, 213 N. Y. 589; Gillet v. Bank of America, 160 N. Y. 549; Sanford v. Brown Bros. Co., 208 N. Y. 90; 343 Madison Ave. Corp. v. Marshall, 212 App. Div. 672; City of New York v. American Ry. Traffic Co., 66 Misc. Rep. 166; 143 App. Div. 928.) The referee did not ignore or make any finding in violation of the provision regarding profits of the selling branch. (Paine v. Howells, 90 N. Y. 660;
      Daintrey v. Evans, 148 App. Div. 275; Snider v. Snider, 160 N. Y. 151; Dodge v. Cornelius, 168 N. Y. 242.)
   Per Curiam.

Defendant was a manufacturer of clothes. It established a separate branch for selling them and engaged plaintiff as manager of that branch. The contract of employment consists of the following letter addressed by defendant to plaintiff and accepted by him:

Your salary will be at the rate of $200.00 per week during the term of this agreement, same to be charged, against the expense of said branch and in addition thereto you shall receive at the end of the period for which you are employed, 10% of the net profits made during said period by our said branch and for the purpose of computing such profit such branch shall be operated as a separate and distinct establishment having its own place of business, employees, books of account, stock, etc. It will be run independently of and without any interest in our other business or businesses and should any differences of opinion arise as to the determination of said net profits, then we shall be the sole arbiters to pass on and determine the same. The cost of merchandise that is charged and delivered to the Jahnkele’s Clothes Co. is to be arrived at in the following manner: Net cost of manufacturing to J. Eisner & Co. plus 10% to cover overhead expenses and profit. Terms n /4 months.”

The vital part of this contract relates to the manner in which the cost of merchandise charged and delivered by the manufacturing branch to the selling branch shall be estimated. The cost of the merchandise shall consist of two distinct items: Net cost of manufacturing to J. Eisner & Co. plus 10% to cover overhead expenses and profit.” With the exception of the method of ascertaining the cost of the merchandise to be charged to the selling establishment, defendant is the sole arbiter to determine the net profits of that establishment. In respect to the item of cost of merchandise, the contract speaks and defendant as well as plaintiff is bound by its provisions. Cost of manufacture ” cannot have been intended to signify general business expenses. Many of such expenses are included within the term “ overhead.” The referee decided that the term net cost of manufacture ” means the net cost of the material directly used plus the net cost of the labor directly applied to it. We think this is too narrow a definition. Wages for designers, foremen and supervisors, machinists and engineers as well as allocated rents of space used in manufacturing may not be included in the term overhead.” Such expenses may fairly be regarded as applicable to manufacture. For the purpose of ascertaining the net profits of the selling branch upon the theory that the cost of manufacture was increased by the expenditure of the amounts for the items herein specified, the judgment of the Appellate Division and that entered upon the report of the referee should be reversed and a new trial granted, with costs to abide the event.

Cardozo, Ch. J., Pound, Andrews, Lehman, Kellogg and O’Brien, JJ., concur; Crane, J., dissents and votes for affirmance.

Judgments reversed, etc.


text:
    William De Lee, Appellant, v. T. J. Pardy Construction Company, Respondent.

      (Argued June 11, 1928;
    decided July 19, 1928.)

      William H. Murray and John F. Murray for appellant,
    It was a question of fact for the jury to decide whether the defendant neglected, failed and omitted to keep the passageway or aisle in the building upon and along which plaintiff walked in a reasonably safe condition. (Meiers v. Koch Brewery, 229 N. Y. 10; Casey v. Lehigh Valley Railroad Co., 128 App. Div. 86; Braun v. General Electric Co., 200 N. Y. 484; Hallett v. Liebmann’s Sons Brewing Co., 129 App. Div. 613; Bageley v. Bowe, 105 N. Y. 171; Quigley v. Thatcher, 207 N. Y. 66; Dougherty v. Weeks & Son, 126 App. Div. 786; Flanagan v. Ley, 241 N. Y. 607; Shanahan v. Crestonia Construction Corp., 207 App. Div. 680; Kenny v. Hall Realty Co., 85 Misc. Rep. 439; Litsch v. Todd, Irons & Robertson, Inc., 239 N. Y. 559.)

      John J. Scully for respondent.
    The defendant could only be.responsible for the negligence of its own employees, or where it had interfered with the work and the acts performed by it occasioned the injury, or where it was bound by statute to do a thing efficiently and injury resulted from its inefficiency. (Quigley v. Thatcher, 207 N. Y. 66; Berg v. Parsons, 156 N. Y. 109; Lynch v. Ley, 119 Misc. Rep. 681; People v. Gaydica, 122 Misc. Rep. 31; Von Lengerke v. City of New York, 150 App. Div. 98; Joyce v. Convent Ave. Co., 155 App. Div. 586.)
   O’Brien, J.

Defendant was the general contractor for the construction of a building and performed all the work except the plastering, painting and electrical work which it sublet to others. Through the middle of the first floor extended an aisle which formed the only passageway for workmen going from front to rear. Above this passage the subcontractors for the plastering work erected a scaffold for the use of then own employees. Plaintiff, who was an employee of the subcontractor for electrical work, was proceeding through this passage beneath the scaffold when it fell upon and injured him. In this action for negligence against the general contractor he recovered a judgment which has been reversed on the law and the complaint dismissed.

Defendant had possession and control of the building. Its superintendent attended each day during the time of construction. His duties, as described by him, were to see that the work goes along smoothly to final completion ” and looking after the interests ” of this defendant. He went from place to place in the building and checked up the various operations of the subcontractors. Through him, defendant owed a duty to all persons invited upon the premises to use reasonable care for their protection. It allowed the workmen of the different subcontractors to pass beneath this scaffold. This was a perfectly proper thing to do. The scaffold was erected for, the use of plasterers and seven or eight of them were on it. With the consent of defendant's superintendent, and as the jury could find, upon his representation that the scaffold would sustain the additional weight, five or six painters also were working there. No reason for its collapse is suggested except the fact of overloading. A structure securely built for the support of eight men may be heavily overloaded by the weight of fourteen. A passageway may be safe or dangerous in proportion to the load imposed above it. Did defendant’s superintendent act as a reasonably prudent man when without previous inspection he authorized the additional use? The jury’s verdict imports a negative answer. We think there is evidence to support it.

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

Cardozo, Ch. J., Pound, Crane, Andrews, Lehman and Kellogg, JJ., concur.

Judgment accordingly.


text:
    Van Vliet & Place, Inc., Appellant, v. Thomas J. Gaines, as Executor of Martha A. Gaines, Deceased, Respondent.

      (Argued June 20, 1928;
    decided July 19, 1928.)

      Theodore E. Larson for appellant.
    Defendant’s title was defective and unmarketable. The defect was incurable and of such a nature that a reasonably prudent purchaser could not be expected to waive it. (Dieterline v. Miller, 114 App. Div. 40; Rowland v. Miller, 139 N. Y. 93; Weinburgh v. Sanders, 204 App. Div. 409; Goodrich v. Pratt, 114 App. Div. 771.) The plaintiff had earned his commissions by introducing a purchaser ready, able and willing to buy upon the terms previously stated by defendant. (Smith v. Peyrot, 201 N. Y. 210; Gilder v. Davis, 137 N. Y. 504; Davidson v. Stocky, 202 N. Y. 423; Tanenbaum v. Boehm, 202 N. Y. 293; Tyler v. Seiler, 76 Misc. Rep. 187; Cerny v. McNamara, 125 Misc. Rep. 827.)

      John J. Crawford for respondent.
    Upon the facts of the present case the defendant, not having had her attention directed to the matter, was under no obligation to apprise the broker of the restrictions, and was guilty of no fraudulent concealment. (Sibbald v. Bethlehem Iron Co., 83 N. Y. 378; Peace v. Ross, 123 App. Div. 611; Hausman v. Jacobs, 120 Misc. Rep. 61; Upington v. Corrigan, 151 N. Y. 143; Ellis v. Horrman, 90 N. Y. 466.)

      Harold J. Treanor for Real Estate Board of New York, Inc., amicus curia.

    The principal cannot defeat the broker’s right to compensation after complete performance is tendered by changing the terms on which the property was offered. (Moses v. Bierling, 31 N. Y. 462; Gilder v. Davis, 137 N. Y. 504; Tanenbaum v. Boehm, 202 N. Y. 293; Davidson v. Stocky, 202 N. Y. 423; McQuillen v. Carpenter, 72 App. Div. 595; Cerny v. McNamara, 125 Misc. Rep. 827; Levy v. Ruff, 4 Misc. Rep. 180.) No duty or obligation is imposed upon the broker to make inquiry of the owner as to his title or the condition of his title. (Schrag v. Cohen, 125 Misc. Rep. 258; Cerny v. McNamara, 125 Misc. Rep. 827; Tarbell v. West, 86 N. Y. 280; Seely v. Seely, 164 App. Div. 650.) The title in the instant case is unmarketable. (Gibert v. Peteler, 38 N. Y. 165; Upington v. Corrigan, 151 N. Y. 143.)

      Bruce R. Duncan for Brooklyn Real Estate Board, amicus curice.

    It is not the duty of a broker to inquire of the owner as to the existence of any conditions, covenants or other matters affecting the -title of the property which he is employed to sell. (Sibbald v. Bethlehem Iron Co., 83 N. Y. 378; Smith v. Peyrot, 201 N. Y. 210; Tanenbaum v. Boehm, 202 N. Y. 293; Davidson v. Stocky, 202 N. Y. 423; Kalley v. Baker, 132 N. Y. 1; Gilder v. Davis, 137 N. Y. 504; Cusack v. Aikman, 93 App. Div. 579; King v. Knowles, 122 App. Div. 414; Cerny v. McNamara, 125 Misc. Rep. 827.)
   O’Brien, J.

Martha A. Gaines owned real property on the corner of Jane street and Eighth avenue, in the borough of Manhattan. In the year 1923 it was in the market and the president of plaintiff, which is a real estate broker, approached the owner and drafted a letter which he addressed to his corporation and which was signed by Mrs. Gaines. In this letter she authorized plaintiff to act as her broker and named her terms of sale. No mention was made concerning any restrictive covenant on the premises. Within the stipulated time, plaintiff procured a purchaser who was ready to buy on the terms and conditions stated in the owner’s letter to the broker, but when the time for closing arrived, a covenant embraced in a deed of the premises executed in the year 1834 and unknown both to the owner and to the broker caused the title company to refuse to insure the title or to loan money on a mortgage and caused the prospective purchaser to refuse to take title. This covenant provides that if at any time the grantee, his heirs or assigns should permit upon the premises a cemetery, slaughter house, manufactory of gunpowder, glue, varnish, vitriol, turpentine, a tannery, blacksmith shop, forge or furnace or any other occupation usually deemed unwholesome, noxious or offensive, then said premises and every part thereof shall revert to said party of the first part and their heirs, * *

The possibility of reverter included in this covenant renders the title unmarketable. In view of the existence of statutes and ordinances which prohibit the maintenance of most of the objectionable structures enumerated in the deed, the ordinary covenant against nuisances has in recent years lost much of its force. Yet, even in populous cities, a blacksmith shop or a forge has not been wholly outlawed. The expression any other occupation usually deemed * * * offensive ” has been interpreted to include many which do not amount to a nuisance. (Rowland v. Miller, 139 N. Y. 93.) The improbability that facts may some time arise to call the possibility of reverter into actual being will not create marketability in a title where it does not otherwise inhere. The contingencies are not so improbable that they can be totally disregarded. We cannot say as matter of law that they are mere theoretical possibilities. They are no more remote than the possibility that, after the adoption of the Eighteenth Amendment and the enactment of the prohibition enforcement act, a purchaser of realty would wish to open a drug store on the premises and sell liquor in accordance with the law. (Isaacs v. Schmuck, 245 N. Y. 77.) The record does not tell us whether these residential premises are located in a zone restricted to residential use. If they are so situated, changes may occur by which the district may be relegated to a business or mixed use. The possibility of a change in the zoning ordinance cannot be said to be too remote for practical consideration. (Bull v. Burton, 227 N. Y. 101; Isaacs v. Schmuck, supra.) The penalty for a violation of this covenant goes beyond payment of money or subjection to an injunction; the title reverts to the heirs of the vendors of 1834. This is not the ordinary covenant against nuisances. It seems to be quite unusual. A prudent purchaser may not be labelled as unduly cautious when he refuses such a title. He would encounter difficulty in obtaining a loan or in conveying title. He would be under no obligation to assume risks of the drastic nature manifested by this covenant. A reasonable doubt as to the title is sufficient to authorizé its rejection. (Moore v. Williams, 115 N. Y. 586.)

The question in the case most closely litigated relates to the broker’s duty to investigate the title. Both owner and broker acted in good faith; neither was aware of the covenant nearly a century in age. The established rule in this State does not impose any obligation upon' the broker to become acquainted with the title. This broker performed its part of the agreement when it procured a purchaser ready to buy according to the terms offered in the owner’s letter. In Smith v. Peyrot (201 N. Y. 210) the rule is thus stated: “ It has been settled by repeated decisions of this court that where a broker is employed to find a purchaser for real estate, and procures one ready, able and willing to pay, he is entitled to his commissions although the sale is prevented by defects in the vendor’s title (Knapp v. Wallace, 41 N. Y. 477; Kalley v. Baker, 132 id. 1; Gilder v. Davis, 137 id. 504).” Mrs. Gaines was unfortunate in failing to know of the ancient covenant in her chain of title. The broker was not bound to know it and, having performed the services for which it was employed, it is entitled to compensation.

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

Cardozo, Ch. J., Pound, Andrews, Lehman and Kellogg, JJ., concur; Crane, J., not sitting.

Judgment accordingly.


text:
    The Trustees of Calvary Presbyterian Church of Buffalo, Respondent, v. George P. Putnam et al., Appellants.
    (Argued March 26, 1928;
    decided July 19, 1928.)

      Frank C. Laughlin, Frederic C. Scofield, Ralph W. Thomas and Stewart W. Bowers for Wilfred Palmer et al., appellants.
    The conveyance by George Palmer to the trustees of the church was a grant upon condition subsequent. The trustees took every interest and estate in the property and nothing remained in the grantor or his heirs except the right to take advantage of a breach of the condition, a mere possibility of reverter, which is neither an estate nor an interest in real property, nor an assignable nor a devisable chose in action, nor a possibility coupled with an interest, but a bare possibility alone. (Nicoll v. New York & Erie R. R. Co., 12 N. Y. 121; Towle v. Remsen, 70 N. Y. 303; Vail v. Long Island R. R. Co., 106 N. Y. 383; Upington v. Corrigan, 151 N. Y. 143; Fowler v. Coates, 201 N. Y. 257; People v. Wainwright, 237 N. Y. 407.) Upon the death of the grantor of an estate upon condition subsequent, his heirs succeed to his right of re-entry for condition broken, by force of representation and not by descent, and it is the event of condition broken which determines in what heirs the right of re-entry will vest and who will have the right to represent the grantor. (Towle v. Remsen, 70 N. Y. 303; Upington v. Corrigan, 151 N. Y. 143; Southwick v. Christian M. Soc., 151 App. Div. 116; Puffer v. Clark, 202 Mich. 169.) Before condition broken, the right in question, being not an actual right of re-entry but the mere possibility of such a right, has no present existence in fact and cannot be the subject of a release; and the right of the heirs, who are such at the time of the breach, to resort to equity to compel specific performance or to re-enter, can neither be affected by an attempted assignment by intermediate heirs or by a release from intermediate heirs who had no right of re-entry. (Nicoll v. N. Y., etc., Ry. Co., 12 N. Y. 121; Miller v. Emans, 19 N. Y. 384; Towle v. Remsen, 70 N. Y. 303; Upington v. Corrigan, 151 N. Y. 143; Wilder v. Penn. R. R. Co., 245 N. Y. 36.)

      George P. Keating for George P. Putnam et al., appellants.
    The conveyance by George Palmer to the trustees of the church was a grant upon condition subsequent. The trustees took every interest and estate in the property and nothing remained in the grantor or his heirs except the right to take advantage of a breach of the condition, a mere possibility of reverter, which is neither an estate nor an interest in real property, nor an assignable nor a devisable chose in action, nor a possibility coupled with an interest, but a bare possibility alone. (Nicoll v. New York & Erie R. R. Co., 12 N. Y. 121; Towle v. Remsen, 70 N. Y. 303; Vail v. Long Island R. R. Co., 106 N. Y. 383; Upington v. Corrigan, 151 N. Y. 143; Fowler v. Coates, 201 N. Y. 257; People v. Wainwright, 237 N. Y. 407.) Upon the death of the grantor of an estate upon condition subsequent, his heirs succeed to his right of re-entry for condition broken, by force of representation and not by descent, and it is the event of condition broken which determines in what heirs the right of re-entry will vest and who will have the right to represent the grantor. (Towle v. Remsen, 70 N. Y. 303; Upington v. Corrigan, 151 N. Y. 143; Southwick v. Christian M. Soc., 151 App. Div. 116.)

      Charles J. Staples, Frederick G. Mitchell, William Doran Cushman and William P. Conley for respondent.
    Under the grant from George Palmer a base or terminable fee was vested in the plaintiff. (Nicoll v. N. Y. & Erie R. R. Co., 12 N. Y. 121; Upington v. Corrigan, 151 N. Y. 143; Weinberg v. Sanders, 198 N. Y. Supp. 121; Van Schaick v. Lese, 66 N. Y. Supp. 64; Ingersoll v. Crocker,
      228 Fed. Rep. 844; Davis on Marketability of Titles, 326.) A conditional grantor may release the conditions of his grant, and any assignment or conveyance inconsistent with the original grant will operate as a release. (Nicoll v. N. Y. & Erie R. R. Co., 12 N. Y. 121; Upington v. Corrigan, 151 N. Y. 143; McArdle v. Hurley, 172 N. Y. Supp. 57; Berenbroick v. St. Luke’s Hospital, 48 N. Y. Supp. 363; Underhill v. Saratoga Co., 20 Barb. 455; Tinkham v. Erie Ry. Co., 53 Barb. 393; Wagner v. Wallowa County, 76 Ore. 453; Board of Education v. Baker, 124 Tenn. 39; Hooper v. Cummings, 45 Me. 359; Rice v. Boston & Worcester R. Co., 12 Allen, 141.) The heirs of the original grantor could, and by their deeds to the plaintiff did, release the conditions of the original grant and thereby vested in the plaintiff a fee simple absolute. (Williams v. Montgomery, 148 N. Y. 519; Berenbroick v. St. Luke’s Hospital, 48 N. Y. Supp. 363; Van Schaick v. Lese, 66 N. Y. Supp. 64; Ingersoll v. Crocker, 228 Fed. Rep. 844; Fowler’s Real Property Law of the State of New York [3d ed.], 181; Moore v. Moore, 47 Barb. 257.)
   O’Brien, J.

Sixty-six years ago George Palmer and Harriet his wife conveyed to plaintiff a parcel of realty on Delaware avenue in Buffalo. In their deed several conditions were attached, one of which prescribes that the premises shall be perpetually maintained for religious purposes, and a covenant provides that upon the breach of any of the. conditions the grantor or his heirs may re-enter and take possession, and thereupon plaintiff’s estate shall cease and determine. Mr. Palmer died two years after the execution of that deed and thirty-five years ago all his living heirs and next of kin, for a consideration, gave a quitclaim deed and covenanted with plaintiff that they would not at any time or in any manner enter upon or interfere with the enjoyment of the premises by plaintiff or its successors or assigns nor in any manner seek to enforce the covenants and conditions of the deed of 1862. In 1926 plaintiff brought this action against all the heirs then living. The complaint alleges that, in the event of a breach of the conditions of the deed, defendants claim a right of reverter and re-entry and it prays for a judgment declaring, among other things, whether any possibility of reverter exists as to defendants and whether they or any other Palmer heirs who may hereafter be born would have any interest in or claim upon the premises in the nature of a right of re-entry or otherwise. It seeks a general declaration respecting the validity of its own title and the rights of the Palmer heirs.

The conditions imposed by the deed clearly are subsequent rather than precedent. No one can doubt this proposition. Indeed, all the parties assume or concede it. Conditions subsequent are not favored. They are strictly construed because they tend to destroy estates. Public interest dictates that real property shall be readily transferable and that titles shall be reasonably marketable. (Nicoll v. New York & Erie R. R. Co., 12 N. Y. 121, 131; Seneca Nation v. Appleby, 196 N. Y. 318, 323; St. Stephen’s Church v. Church of Transfiguration, 201 N. Y. 1, 10.) The grantor himself certainly was authorized to release the grantee from its obligation to perform conditions and, even prior to a breach, to waive his possible right of reverter. He could have taken any course agreeable to him by which this possible right might have been divested. No one disputes the proposition that, as long as the conditions existed unbroken, all interest in the estate remained out of the grantor and his heirs. Until the contingency happens the whole title is in the grantee. (Vail v. L. I. R. R. Co., 106 N. Y. 283, 287.) Neither the grantor nor his heirs possessed anything except a right to take advantage of a breach. This is not an estate. (Fowler v. Coates, 201 N. Y. 257.) This possibility of reverter, this possible right of re-entry, passes to the heirs not by descent but by force of representation. (Upington v. Corrigan, 151 N. Y. 143.) After condition broken, the heirs could unquestionably waive their rights of re-entry. The case is, therefore, reduced to this issue; the grantor, in behalf of himself and his heirs, born and unborn, having power, prior to a breach, to waive all possible right of reverter and the heirs having the same power, after condition broken, can the living heirs, prior to a breach, waive their own possible rights and foreclose those of unborn heirs? In respect to remote contingent rights in an estate, the policy of the law encourages their release to parties already possessed of some substantial estate. All rights, titles and actions may be released to the terre-tenant for securing his repose and quiet and for avoiding contentions and suits. (Miller v. Emans, 19 N. Y. 384, 390, 391.) No rule of law is invoked which would tend to prevent the living heirs, prior to a breach, from waiving a right or a possible right of which they could thereafter divest themselves. No reason presents itself for the creation of such a rule. If, prior to the release by the heirs in 1893, plaintiff had violated the conditions, they, in their representative capacity, had also been vested with power either to stand passive or approve actively of the violation. They could have exercised or have refrained from exercising any power which would have existed in the grantor had he been alive. They represented him and his possible rights. The rights of unborn heirs are surely no more extensive than those of the grantor which were represented by the living heirs.

The judgment should be affirmed, with costs.

Cardozo, Ch. J., Pound, Crane, Lehman and Kellogg, JJ., concur; Andrews, J., not sitting.

Judgment affirmed.


text:
    Charles Schaefer, Jr., et al., as Executors of Charles Schaefer, Deceased, Doing Business under the Firm Name of Chas. Schaefer & Son, Respondents, v. Belarmina Alvarez et al., Copartners under the Firm Name of B. Alvarez & Son, Appellants.
    (Argued June 20, 1928;
    decided July 19, 1928.)

      Louis H. Moos for appellants.
    Parol evidence is incompetent to prove an oral agreement in derogation of and at variance with the memorandum signed by the party to be charged. (Warth v. Kastriner, 120 App. Div. 480; De Goode v. Burton, 141 App. Div. 22; Wright v. Weeks, 25 N. Y. 153; Drake v. Seaman, 97 N. Y. 230; Mentz v. Newwitter, 122 N. Y. 491; Ward v. Hasbrouck, 169 N. Y. 407; Brauer v. Oceanic Steam Navigation Co., 178 N. Y. 339.)

      Samuel Zirn for respondents.
    Parol evidence, though not permitted to vary or contradict a written contract, may always be offered by either party to prove the oral contract relied upon, as here, subject to the memorandum evidencing it being found sufficient. (Atlas Shoe Co. v. Lewis, 200 App. Div. 244; Turner Co. v. Robinson, 55 Misc. Rep. 280; Grierson v. Mason, 60 N. Y. 397; Grannis v. Stevens, 216 N. Y. 587; Richardson on Evidence [2d ed.], § 410.)
   Per Curiam.

Plaintiffs sued for the breach of an oral contract for the sale of two barge loads of hay valued at more than $9,000 and have recovered upon the theory that a letter signed by defendants constitutes such a note or memorandum as makes the contract enforcible under the Statute of Frauds. (Pers. Prop. Law [Cons. Laws, ch. 41], § 85.) Plaintiffs’ evidence points to an unconditional and absolute oral agreement. Defendants’ letter expressly states that the sale is made “ subject to our ability of securing insurance on these barges.” This is not a memorandum of the oral agreement proved by plaintiff. It is evidence of an entirely different agreement and is not such as the statute requires. (Ward v. Hasbrouck, 169 N. Y. 407; Brauer v. Oceanic Steam Navigation Co., 178 N. Y. 339; Poel v. Brunswick-Balke-Collender Co., 216 N. Y. 310; N. E. D. Holding Co. v. McKinley, 246 N. Y. 40.)

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

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

Judgments reversed, etc.


author: Lehman, J.

text:
    Jungmann & Company, Inc., Respondent, v. Atterbury Brothers, Inc., Appellant.
    (Argued June 13, 1928;
    decided July 19, 1928.)

      Charles A. Collin, Robert H. Ernest and Samuel L. Chess for appellant.

      B. F. Norris for respondent.
    The appellant had ample cable notice of the shipment and of the intention to tender the goods. (Pope v. Porter, 102 N. Y. 366; Baker v. Higgins, 21 N. Y. 397; Wester v. Casein Co., 206 N. Y. 506.)
   Lehman, J.

In February, 1923, the plaintiff entered into a written contract with the defendant for the sale of thirty tons of casein. The contract contained a clause: “ Shipment: May-June from Europe. Advice of shipment to be made by cable immediately goods are dispatched.” Fifteen tons of casein were shipped on June 9th, 1923. No notice of shipment was given to the defendant. Tender of this shipment by the plaintiff was refused by the defendant on June 20th. On June 21st the defendant wrote to the plaintiff that the plaintiff “ failed to make any May delivery under the contract and also failed to advise us of shipment as required to do by your contract.” The plaintiff declined an offer of the defendant “ to take this shipment as the June quota on your contract and call the contract filled.” On June 2Gth the plaintiff shipped the remaining fifteen tons of casein. The defendant received no advice of shipment “ by cable ” immediately after the goods were shipped. It did receive a letter from the plaintiff dated June 23d, that the plaintiff had received advice by cable that these fifteen tons would be shipped per steamship Magnolia sailing on June 26th, and another letter from the plaintiff on June 28th stating that upon the arrival of the steamship Magnolia “ which sailed on June 26th with the balance of your order on board, we will deliver to you the full 30 tons of Casein in conformity with our contract.” On the arrival of the steamship Magnolia the plaintiff tendered to the defendant the thirty tons of casein. The defendant refused the tender.

The defendant claims that the parties understood and intended that one-half of the casein was to be shipped in May and the remainder in June, and that the words Shipment: May-June ” were used to express that understanding and intention. Evidence of oral negotiations offered for the purpose of showing the understanding of the parties was excluded upon the plaintiff’s objection. No evidence was offered by either party that the words “ Shipment: May-June ” had any peculiar meaning in the trade. The courts below have held that these words have a well-defined general significance and mean that the plaintiff might ship the entire thirty tons of casein at any time the plaintiff saw fit during the months of May and June. It is said that the meaning of these words is so clear and unambiguous that while evidence of prior negotiations might show that the written contract does not correctly embody the intention of the parties, such evidence would not be admissible to change the general well-established meaning of the, words of the contract.

The correctness of the exclusion of the testimony offered by the defendant is perhaps not free from doubt. We do not pass upon that question now. Error, if any, in the exclusion of testimony might result in a new trial. Upon the undisputed testimony in this case the defendant is entitled on other grounds to a reversal of the judgment against it and to a dismissal of the complaint.

Upon the demand of the defendant the parties agreed to the insertion in the contract of the clause, “Advice of shipment to be made by cable immediately goods are dispatched.” Concededly until the goods shipped on June 9th arrived, no notice of any kind was given to the plaintiff that they had been shipped. Notice that the remainder of the goods was shipped on June 28th was given by letter from the plaintiff, not by cable. It is said that since the defendant received notice when the steamship Magnolia sailed with fifteen tons that upon its arrival the plaintiff would tender to the defendant the entire thirty tons, the defendant is in no worse position than if it had received the stipulated “ advice of shipment by cable immediately the goods are dispatched.” Even if that be true, the fact remains that the plaintiff was obligated under its contract to see that defendant obtained advice of shipment by cable. That, it failed to do. It may be that the defendant would have been satisfied to enter into a contract which required the plaintiff only to notify the defendant of intention to make delivery a definite time before actual delivery. It stipulated for another kind of notice. It may have believed that certainty of delivery would be greater if it received advice of actual shipment by cable. We may not weigh the benefit it might receive from other notice. The plaintiff may not recover upon its contract without proof that it has performed all conditions precedent required of it. (Van Iderstine Co., Inc., v. Barnet L. Co., Inc., 242 N. Y. 425; Raymond Concrete Pile Co. v. Thatcher & Son, 221 N. Y. 715; Rosenthal P. Co. v. Nat. Folding B. & P. Co., 226 N. Y. 313; Williston, Contracts, sections 674, 675.) The plaintiff is barred from recovery here by failure to give notice according to the terms of the contract.

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

Cardozo, Ch. J., Pound, Andrews, Kellogg and O’Brien, JJ., concur; Crane, J., votes for a new trial.

Judgment reversed, etc.


text:
    Randolph M. Valz et al., Appellants, v. Sheepshead Bay Bungalow Corporation et al., Respondents.

      (Argued May 2, 1928;
    decided July 19, 1928.)

      Louis Marshall and Robert E. L. Lewis for appellants.
    This appeal has been properly taken as of right pursuant to article VI, section 7, of the Constitution of this State, and subdivision 1 of section 588 of the Civil Practice Act, since the judgment entered upon the decision of the Appellate Division finally determined an action wherein is directly involved the construction of the due process clauses of the Constitutions of this State and the United States. (Red Cross Line v. Atlantic Fruit Co., 233 N. Y. 373; People ex rel. Astoria L., H. & P. Co. v. Cantor, 236 N. Y. 417; Virginia v. Rives, 100 U. S. 313; Ex parte Virginia, 100 U. S. 346; Scott v. Mc Neal, 154 U. S. 34; C., B. & Q. R. R. Co. v. Chicago, 166 U. S. 226; Home Tel. & Tel. Co. v. Los Angeles, 227 U. S. 278.) The proceedings taken in the foreclosure action, whereby it was sought to exclude the appellants from their interest in the mortgaged premises, were null and void in that they did not comply with the requisites of due process of law as defined by the Code of Civil Procedure and as guaranteed by the State and Federal Constitutions.
      (McDonald v. Mabee, 243 U. S. 90; Simon v. Southern Ry., 236 U. S. 115; Dalton v. Weber, 203 Mich. 455; Cooper v. Reynolds, 10 Wall. 308; Pringle v. Woolworth, 90 N. Y. 502; Bradley Mfg. Co. v. Burrhus, 135 Iowa, 324; St. Paul Savings Bank v. Anthier, 52 Minn. 98; O’Connell v. Gallagher, 104 App. Div. 492; Williams v. Van Valkenburg, 16 How. Pr. 144; Wilmerding v. Corbin Banking Co., 126 Ala. 268; Lutkins v. Young, 63 Wash. 452: Graves v. Smith, 278 Mo. 592; Brisbane v. Peabody, 3 How. Pr. 109.) The err parte order amending nimc pro tunc the order of publication in the foreclosure action was a nullity, and has been given such effect by the courts below in this action as to deprive the appellants of their property without due process of law. (Blossom v. Estes, 84 N. Y. 614; Cossitt v. Winchell, 39 Hun, 439; Klein v. Southern Pac. Co., 140 Fed. Rep. 213; Burnside v. Wand, 170 Mo. 531; Guarantee Trust Co. v. Phila., R. & N. C. R. R. Co., 160 N. Y. 7; Conklin v. Federal Trust Co., 176 App. Div. 572; Hollander v. Wallace, 167 App. Div. 217; Wilson v. Banque Francaise du Mexique, 124 Misc. Rep. 690; Ladenburg v. Commercial Bank, 87 Hun, 274; 146 N. Y. 406; Hern v. Sample, 233 Mich. 140; Baker v. Riordan, 65 Cal. 368.) The contention that the decisions of the courts below may have been based on some other ground than that involving a construction of the due process clause of the State and Federal Constitutions, and that, therefore, they preclude this appeal, is without merit in law or in fact. (O’Connell v. Gallagher, 104 App. Div. 495; Galway v. Met. El. Ry. Co., 128 N. Y. 132; Cox v. Stokes, 156 N. Y. 491; Slayback v. Raymond, 40 Misc. Rep. 609; Eidlitz v. Manhattan Wrecking Co., 164 App. Div. 596; Kenyon v. National Life Assn., 39 App. Div. 294; Treadwell v. Clark, 190 N. Y. 60.)

      Hugo Hirsh, Morgan J. O’Brien, Jr., and Bernard Sobol for American Trust Company et al., respondents.
    This appeal should be dismissed because the meaning and not the validity of sections 440-444 of the Code of Civil Procedure is involved. (People ex rel. Moss v. Supervisors, 221 N. Y. 367; People ex rel. Curtis v. Kidney, 225 N. Y. 299; Matter of Haydon v. Carrol, 225 N. Y. 84; Arndt v. Griggs, 134 U. S. 316; Tyler v. Judges of Registration, 175 Mass. 174; Security Bank v. California, 263 U. S. 282.) The mistake in the service by publication made in the 1917 mortgage foreclosure proceedings was a mere irregularity which was cured by the order nunc pro tunc so that there is no violation of due process of law herein. (Close v. Calder Co., 139 App. Div. 175; 203 N. Y. 590; Coring v. Binney, 38 Hun, 152; 101 N. Y. 623; Stuyvesant v. Weil, 167 N. Y. 421; Cunningham v. Cassidy, 17 N. Y. 276; Wallace v. Feely, 10 Daly, 331; 88 N. Y. 646; Hedley v. Loomis, 116 Misc. Rep. 605; Powlak v. Gruszecki, 124 Misc. Rep. 447; Silleck v. Heydrick, 2 Abb. Pr. [N. S.] 57; Levy v. McMahon, 170 App. Div. 731; Sage v. Central R. R. Co., 99 U. S. 334.) While the court below did not determine this case on the question of estoppel, the silence of the plaintiffs herein from October, 1917, when they first received notice of the pendency of the foreclosure action, until August 5, 1925, when they commenced the present action, estops them from seeking relief in a court of equity. (Wendell v. Van Rensselaer, 1 Johns. Ch. 344; Storrs v. Marker, 6 Johns. Ch. 166; Trustees, etc., v. Smith, 118 N. Y. 634; Levinson v. Myers, 100 Misc. Rep. 379; Seaman v. Leonordi, 110 Misc. Rep. 532; State Bank of Brocton v. Brocton Fruit Juice Co., 152 App. Div. 335; McMahon v. Cook, 107 App. Div. 150; Kirk v. Hamilton, 102 U. S. 68; Dold Packing Co. v. Doermann, 293 Fed. Rep. 315.) While the court below did not determine this case on the question of laches, the laches of the appellants herein is sufficient to bar them from any equitable relief whatsoever. (Chase v. Chase, 20 R. I. 202; Calhoun v. Millard, 121 N. Y. 69; Crane v. Stiger, 2 T. & C. 577; Moore v. Shaw,
      77 N. Y. 512; Brown v. Frost, 10 Paige, 243; McKechnie v. McKechnie, 3 App. Div. 91; Mulvey v. Gibbons, 87 Ill. 367; Mahaffy v. Faris, 144 Iowa, 220; Harlow v. Iron Co., 41 Mich. 583; Royal Bank v. Railroad Co., 125 Mass. 494.)

      Clarence F. Corner for Flatbush Savings Bank et al., respondents.
    This appeal is not within the jurisdiction of this court. (People ex rel. Moss v. Supervisors, 221 N. Y. 367; Matter of Haydorn v. Carroll, 225 N. Y. 84; People ex rel. Curtis v. Kidney, 225 N. Y. 299; American Land Co. v. Zeiss, 219 U. S. 47; Sauer v. City of New York, 206 U. S. 536.) The defect in the foreclosure action was an irregularity only and was not a jurisdictional defect. (Miskind-Feinberg Realty Co. v. Sidorsky, 189 N. Y. 402; Stuyvesant v. Weil, 167 N. Y. 421; Loring v. Binney, 38 Hun, 152; Close v. Codder, 139 App. Div. 175; Brook v. Saylor, 44 Hun, 554; Van Wyck v. Harvey, 4 Abb. Ct. App. Dec. 496.) Appellants are estopped from obtaining this equitable relief as they do not come into court with clean hands. (McKenna v. Fidelity Trust Co., 184 N. Y. 411.) The defendants in the foreclosure action were excluded from their interest in property in this State by due process of law as defined by the Code of Civil Procedure and as guaranteed by the State and Federal Constitutions. (City of New York v. Wright, 243 N. Y. 80; American Land Co. v. Zeiss, 219 U. S. 47; Arndt v. Griggs, 134 U. S. 316; Ballard v. Hunter, 204 U. S. 241; Huling v. Kaw Valley Railway & Improvement Co., 130 U. S. 559; Sauer v. City of New York, 206 U. S. 536.)
   Lehman, J.

Antonio M. Valz, a resident of Virginia, executed in 1912 a mortgage for the sum of $25,000 upon certain real estate which he owned in the county of Kings. Valz died in July, 1916, leaving a widow, Julia I. Valz, and six children, his heirs at law. In July, 1916, the holders of the first mortgage brought an action for the foreclosure of the mortgage. In that action an order was duly made for service by publication of a supplemental summons upon the non-resident defendants named therein, among whom were the children and heirs at law of Valz. The order provided for publication in two newspapers: The Brooklyn Daily Times and the Brooklyn Citizen. It also provided for the deposit in the General Post Office of sets of copies of the summons and complaint and of the order of publication, directed to the defendants named in the order, at the addresses therein specified.

. Through an unfortunate mistake of a clerk in the office of the attorney for the plaintiff in the foreclosure action, service of summons was not made, in accordance with the terms of the order, by publication in the Brooklyn Daily Times. Instead the summons was published in the Brooklyn Daily Eagle, a newspaper with a slightly larger circulation. All the subsequent proceedings in the action were taken upon the mistaken assumption that the order of publication so provided. Copies of the summons and complaint directed at correct addresses to the nonresident parties defendant in the foreclosure action, including the children and heirs at law of Valz, were deposited in the General Post Office in Brooklyn and were received by the parties to whom they were directed. The “ copy ” of the order of publication inclosed therewith recited that publication was directed to be made in the Brooklyn Daily Eagle. The proof of publication contained similar recitals.

The heirs at law of Valz who resided in Virginia did not appear in the action. Judgment of foreclosure was entered upon their default and the property was sold for the sum of $10,000. In 1924 the plaintiffs in the foreclosure action procured ex parte an order amending nunc pro tunc the order for service by publication, by inserting the words “ Brooklyn Daily Eagle ” in place of Brooldyn Daily Times.

Since the sale in the foreclosure action there has been a manifold increase in the value of the property. It has been subdivided and improvements costing hundreds of thousands of dollars placed upon it. Though the nonresident owners of the equity of redemption — the heirs at law of Valz, the mortgagor — received copies of the summons and complaint in the foreclosure action, and chose not to appear therein, they now claim that the judgment of foreclosure is not binding upon them because the summons was not published as directed in the original order of publication. They bring this action to redeem the property, which has now become very valuable, from the hen of the mortgage. They urge that, though they knew of the foreclosure action, they had no legal notice of it. The courts below have held that the failure to publish the summons as directed in the original order constituted only an irregularity which the court might by subsequent order correct.

There is no dispute in regard to any question of fact. The findings of fact are substantially in accord with the stipulation of the parties and the records on file in the court in which the judgment of foreclosure and sale was made and entered. Upon those findings the court has based the conclusions that the publication by inadvertence in the Brooklyn Daily Eagle instead of in the Brooklyn Daily Times was a mere irregularity which could be cured and was cured by the nunc pro tunc order of April 14th, 1924,” and “ that in the said foreclosure action * * * jurisdiction of the widow of Antonio M. Valz and of the heirs at law of Antonio M. Valz was duly obtained.” The sole question presented by the plaintiffs and passed upon by the courts below is whether the court in the foreclosure action acquired jurisdiction to render judgment binding upon the non-resident defendants in that action. If the conclusion of the courts that the court had jurisdiction to foreclose the non-residents of their rights to the property was erroneous, then undoubtedly these non-residents have been deprived of their property without due process of law, despite the provisions of the State and Federal Constitutions.

The Legislature has the power to provide for service of the summons without the State by mail and publication. It is not disputed that service of a summons in the manner provided by the statute gives to the nonresident defendants sufficient notice of the action and opportunity to appear and be heard therein, and that a judgment rendered thereafter, even though the nonresident defendants do not appear, is a judgment rendered in accordance with due process of law. There must, however, be a substantial compliance with these provisions of the statute; otherwise the court is without jurisdiction to render a judgment binding upon a non-resident who has not appeared. The Legislature must determine the steps which must be taken to confer jurisdiction upon the courts of the State. Notice to a defendant of the pendency of the action given in other manner is nugatory and may be disregarded. (Wuchter v. Pizzulti, 48 Sup. Ct. Rep. 259, and cases there cited.)

The Legislature of New York has provided the method to be used for service of the summons upon non-resident defendants in sections 438 to 442 of the Code of Civil Procedure (now section 232 of the Civil Practice Act and rules 50 to 52 of the Rules of Civil Practice). First there must be an order for publication based upon sufficient affidavits. Such an order has been made in this case. The order must contain a direction to publish the summons in at least two newspapers designated in the order, not less than once a week for six successive weeks. It must also contain either a direction that copies of the summons, complaint and order be deposited in a post office, directed to the defendant, or a statement that the court or judge, “ being satisfied, that the plaintiff cannot * * * with reasonable diligence, ascertain a place or places, where the defendant would probably receive matter transmitted through the post office, dispenses with the deposit of any papers therein.” Some discretion is vested in the judge as to what newspapers shall be designated. In other matters the Legislature has itself directed what provisions for service of the summons shall be contained in the order.

It was conceded upon the argument that the Legislature might have provided that publication might be made in two newspapers selected by the court before publication is begun, or approved by the court thereafter; or the Legislature might have provided in express terms that where, through inadvertence, publication is made in a newspaper other than one of those selected by the court, the court might thereafter disregard the error as a mere irregularity. If the Legislature had so provided in express terms, then, perhaps, no substantial claim could have been made that the judgment was not binding upon the non-resident defendants named in the summons, and no substantial constitutional question would be involved. Here the Legislature has not so provided in express terms, but the courts have so construed the statute. On the grounds that the construction of the statute and not the construction of the Constitution of the State or of the United States is directly involved (Civ. Prac. Act, section 588), the respondents have moved to dismiss the appeal taken without permission.

The terms “ directly ” or “ indirectly ” involved are relative rather than absolute, and hence are not capable of unvarying definition. We have held that upon an appeal from a decision that the Legislature did not, by statute, intend to make the expenses incurred by a county officer, removed by the Governor, a county charge, the question of whether a statute which did make such expenses a county charge would be constitutional was not directly involved. (People ex rel. Moss v. Supervisors, 221 N. Y. 367. See, also, Matter of Haydorn v. Carroll, 225 N. Y. 84; People ex rel. Curtis v. Kidney, 225 N. Y. 299.) It is to be noted that in these cases the primary-question presented to the courts involved only the meaning of a statute and even if the construction placed upon the statute was erroneous, the error would not deprive any party of a constitutional right. Not so here. The sole question presented to the courts in the instant case is whether the judgment of foreclosure is based upon due process of law. That question involves directly and necessarily the construction of the Constitution. True it is, that in determining that question the courts must give consideration to the proper construction and effect of the statute. Perhaps, indeed, that consideration may be decisive. Even so, we construe the statute only to determine whether under the due process clauses of the State and United States Constitutions the judgment of foreclosure has any binding force. We are, of course, not bound by the construction placed upon the statute in the courts below. If we decide that they have given an unwarranted effect to the statute, then the plaintiffs have been deprived of their property by a judgment not based upon due process. Where the question of whether a judgment is the result of due process is the decisive question upon an appeal, the appeal lies to this court as a matter of right.

It is also urged that the construction of the Constitution is not directly or necessarily involved in this appeal because the decision of the courts below might be based upon a finding of estoppel or laches. The answer to that contention is that the courts below did not and could not find estoppel or laches. There can be no estoppel based upon failure of the non-resident defendants, named in the foreclosure action, either to appear in that action or to take other steps to assert their rights to the property under foreclosure unless some duty to act in assertion of their rights was placed upon such defendants. If they received legal notice of the foreclosure action which called upon them to assert their rights, if any, in the proper forum, then the court had jurisdiction to enter judgment of foreclosure upon their default in appearance. If they had no such notice, then it seems clear that they were under no duty to assert their rights until they chose to do so, and failure to act earlier, where there was no duty, can create no estoppel. If the facts in this case arouse an instinctive feeling that the non-resident owners of the equity of redemption were called upon to assert any rights that they might have in the foreclosure action or remain forever silent, justification, if any, for that view must be found in the fact that, through the proceedings actually taken to serve the summons upon defendants named in the summons, they received the same actual notice or knowledge as if the summons had been published as directed in the older. The question remains whether that notice constituted a sufficient service to give the court jurisdiction to render a judgment binding upon them.

The courts are commanded to disregard mistakes and to cure defects or irregularities in process, pleadings or other proceedings “ not being against the right and justice of the matter.” (Sections 721 and 722 of the Code of Civil Procedure; section 109 of the Civil Practice Act.) It has been held that the courts may disregard unsubstantial defects even in the service of process by publication. (Loring v. Binney, 38 Hun, 152; affd., 101 N. Y. 623; Mishkind-Feinberg Realty Co. v. Sidorsky, 189 N. Y. 402.) In those cases and in other cases that might be cited, the defects were only in the form of process. Here, it is said that at the time the judgment was entered there was a complete failure to carry out the mandatory provisions of the statute to publish the summons in two newspapers designated in the order.

The statutory notice is the basis of the court’s jurisdiction; the courts have no power to hold that a notice not conveyed in a manner permitted by the statute may be equally effective. The statute does not, however, provide that the notice must be published in newspapers named by the Legislature. The order of publication might have provided for the service of the order by publication in the two newspapers in which the publication was actually made. The question here presented is whether the court obtains jurisdiction where publication is made by inadvertence in a newspaper which the court did not designate, though it might have done so, and where in other respects service of the summons is made in exact accordance with the statute and order of publication.

The exact question has, so far as we know, never been adjudicated by any appellate court in this or any other State. In Brisbane v. Peabody (3 How. Pr. 109) the Special Term at Erie county of the Supreme Court held that such a defect was jurisdictional. Aside from the fact that the decision was made only by a single judge, it is fair to point out that the statute at that time did not provide for deposit of the summons and complaint in the post office, and the only means of notice under the statute was by publication. In the case now under review, such a deposit was made, and the non-residents actually received the summons and complaint. Except for the purpose of fixing the time when service would be complete, the provisions of the statute for publication could in this particular case serve no purpose beneficial to the non-resident defendants. We need not now decide whether these additional factors present in this case a sound basis for distinction. A decision of a judge at Special Term rendered in 1847 without a reasoned opinion can hardly be regarded as a precedent or authority of weight at this time. We regard the question here presented as a novel one.

No rule or measure has ever been devised by which we may determine in every case, with definite certainty, whether a defect is jurisdictional or is a mere irregularity which may be disregarded or amended. The purpose of the statutory directions for deposit, unless dispensed with, of the copies of the summons and complaint in the post office and for the publication of the summons in two newspapers is, of course, to give the defendant notice of the bringing of the action and opportunity to defend. Notice is directed through several channels in the reasonable expectation that, through one of the channels, it will be brought to the attention of the nonresident defendant. Here that expectation has been realized. The non-resident defendants received the copies of the summons and complaint which had been deposited in the post office addressed to them, in accordance with the statute, for the purpose of giving them notice of the bringing of the action and of their right to defend. The notice so received was not casual. Opportunity to appear and defend was afforded to the non-resident defendants, not as a favor, but as a matter of right. They chose not to do so. The property sold for only a fraction of the amount of the mortgages upon it. The equity of redemption was apparently valueless. The non-residents may have assumed that publication was made in accordance with the order as signed by the judge. At least it is clear that they did not suppose that after judgment of foreclosure, they had any title to the property, until some undisclosed person discovered the defect and informed them of it. Their failure to appear originally was not occasioned, or contributed to, by the defect in publication. They chose not to assert against the mortgagee their right to redeem the property from the mortgage at the time when they believed that they were called upon to assert it or remain forever silent. Now that this right has become valuable, they seek to assert it against others who trace their claim of title to the sale under foreclosure. These circumstances would be a decisive factor in the exercise of the court’s discretion to disregard and cure the defect, if the defect constitutes only an irregularity. They may be relevant in the determination of the question whether there is room for the exercise of discretion. They are not entirely decisive of that question. There is no field for the exercise of discretion where there is no jurisdiction in the court under the statute.

The Legislature has required publication in two newspapers for not less than once a week for six consecutive weeks. Without such publication there can be no constructive notice; so the Legislature has ordained. The Legislature has conferred upon the court or judge discretion in the designation of newspapers in which publication shall be made, to the end that publication shall be made in journals which are most likely to give notice to the defendant to be served. Where publication has by inadvertence been made in a newspaper not designated in the order, but which the court might in the exercise of its discretion have designated, and especially where the purpose of the Legislature has been consummated by actual notice conveyed to the defendant in manner authorized by the statute, the error may, in fact, be inconsequential. The purpose of the Legislature to give to. a non-resident defendant notice of the bringing of the action and opportunity to appear therein might be thwarted if such publication were made in newspapers not likely to come to the attention of the defendant to be served. Therefore, the Legislature has left the choice of the newspapers in which publication is to be made to the court or a judge thereof. That choice is merely part of the procedure calculated to make the publication effective. The Legislature ordains the manner in which service by publication shall be made. The court or judge merely selects the instrument. The instrument derives no added force by such selection in advance. No conceivable purpose of the Legislature is thwarted if the court disregards the inadvertent use of an instrument not selected by a judge in advance, if the instrument is one which the court might have selected originally. No safeguard which the Legislature has chosen to provide for the benefit of a non-resident defendant is rendered less effective if the court cures such a defect in the service by publication by order made after the publication is complete.

It has been held that a retrospective statute may validate a tax void for failure to comply with some statutory requirement that the Legislature might have originally dispensed with. (Ensign v. Barse, 107 N. Y. 329, at page 346.) The Legislature may in the same way validate a tax sale unless the proceedings are so fatally defective that no title has passed. (People v. Inman, 197 N. Y. 200, and cases there cited; Meigs v. Roberts, 162 N. Y. 371; Halsted v. Silberstein, 196 N. Y. 1, 14.) We recognize that analogy between the legislative power to cure defects in the assessment of taxes even after tax sale, and the power of the courts to disregard error or defects in the service of process, is not complete. Nevertheless these cases are not without significance in the determination of the question we are now considering. Under the statute governing service by publication, the court obtains jurisdiction to grant judgment binding upon a non-resident defendant through constructive notice given through service by publication. Choice of the newspapers to be used is left to the court or judge. We may not ascribe to the Legislature an intent to give undue importance to rigid formality. The observance of requirements left by the statute to the discretion of the court or judge may not reasonably be regarded as a statutory condition to the court’s jurisdiction. Within the limits of that discretion, the court which has power to define the requirements may cure the defects by changing the requirements it has itself imposed.

It is said that if we hold that the court acquires jurisdiction by publication of the summons in a newspaper not designated in the order, a plaintiff may with impunity disregard completely the designation in the order and proceed to publish the summons in newspapers chosen by himself. In afihming the judgment of the Appellate Division, we hold only that the court acquires jurisdiction by the publication of the summons in a newspaper not designated in the order where the newspaper in which publication has been made is one which might have been designated. The result is that a judgment rendered thereafter is not subject to collateral attack. The service of the summons is nevertheless irregular, and a defendant upon whom irregular service has been made may still move in the action to vacate the defective service, or for. other relief. Such a motion is addressed, to the discretion of the court. (Sections 105 and 109, Civil Practice Act. See Wallace v. Dimmick, 24 Hun, 635; Bank of Havana v. Magee, 20 N. Y. 355; McCoun v. N. Y. C. & H. R. R. R. Co., 50 N. Y. 176; Gribbon v. Freel, 93 N. Y. 93; Jones v. Nelson’s Executrix, 51 Ala. 471; Parsons v. Swett, 32 N. H. 87; Lane v. Ball, 83 Ore. 404; Scott v. Jarrell, 167 N. C. 364; Pollard v. Wilder, 17 Vt. 48; Barker Co. v. Central West. Inv. Co., 75 Neb. 43.) The defect may be disregarded or cured either before or after judgment only where it is not against the right or justice of the matter,” and no substantial right of any party is thereby prejudiced. Since service of the summons forms the basis of the court’s jurisdiction to render judgment against the nonresident defendant, where the court, even in the exercise of discretion, refuses to disregard or cure the defect in the service of the summons and sets that service aside, the judgment falls with the destruction of the foundation on which it is based. Here the non-resident defendants received formal notice of their right to defend. They chose not to assert any defense in the action. Error in the publication was inadvertent, and the publication was made in a newspaper as likely to give notice to the defendant to be served as the newspaper originally designated. In such case there is room for the exercise of the court’s discretion to disregard and cure the defect by belated approval of the newspaper in which publication was made. We do not decide whether under other circumstances the court should take similar action, even though it has jurisdiction.

The judgment should be affirmed, with costs.

Crane, Andrews and O’Brien, JJ., concur; Cardozo, Ch. J., Pound and Kellogg, JJ., dissent and vote for reversal on the ground that the defect in service of summons was jurisdictional.

Judgment affirmed.