author: O’Bbien, J.

text:
    Isidore Zwilling, Respondent, v. John Harrison et al., Appellants.

      (Argued December 11, 1935;
    decided January 14, 1936.)

      Harold, Ashare, John R. Vunk and William A. Earl for John Harrison et ah, appellants.

      Clarence E. Méllen and Frederick Mellor for Bertha Seligman, appellant.
    The trial court erred in submitting the issue of the defendant Seligman’s negligence to the jury. (Queeney v. Willi, 225 N. Y. 374.)

      Thomas A. Shaw, Jay S. Jones and Edward J. Fanning for respondent.
    It was the duty of the defendant Bertha Seligman to be on the alert and to keep her car under reasonable control at all times, so as to prevent a collision such as occurred here. (Moebus v. Herrmann, 108 N. Y. 349; Baker v. Close, 204 N. Y. 92.)
   O’Bbien, J.

Plaintiff recovered judgment against all three defendants. The material question is whether any evidence sustains the verdict against defendant Seligman. Plaintiff is her father and was injured in a collision between a truck owned by defendant Silver Rod Stores, Inc., and operated by defendant Harrison and a car driven by Mrs. Seligman in which plaintiff was a guest. The truck and the car were proceeding in a westerly direction through Canal street in New York city, each traveling at a rate of twelve to fourteen miles an hour. The Seligman car was six and a half feet behind the truck. There were three lines of traffic proceeding in each direction. At the intersection of Canal and Varick streets a police sign prohibited left turns into Varick street. Nevertheless the chauffeur of the truck, without giving any signal, turned to his left into Varick street and stopped short. Defendant jammed on her brakes but was unable to stop her car in time to prevent the collision. This is the version narrated by plaintiff’s witnesses and adopted by his counsel in his brief.

Clearly a question of negligence by the driver of the truck was presented to the jury. But how was Mrs. Seligman guilty of any negligence? No jury is warranted in adopting the view that twelve or fourteen miles is an excessive rate of speed even in a congested city thoroughfare. It is most conservative driving. This defendant was not bound to foresee the probability of traffic violation byjhe truckJn front of her. Unless she should be deemed an insurer of the safety of her guest, her proximity within six and a half feet of the slowly moving truck, under the conditions of traffic as they existed at the time and location of this accident, cannot justify a conclusion of failure to keep her car under control or any other type of failure to act with reasonable card. Of course at any time a car ahead may violate the law by a sudden stop without signaling, but when such an event occurs the circumstances constitute, as to the rear car, nothing more than an accident for which its driver cannot fairly be held blameworthy. If this defendant was negligent, then there is not a careful driver in New York. It is not inconceivable that a driver of the highest possible skill could have stopped this car in time to avoid collision with the car ahead, but this defendant was not bound to possess such extraordinary ability. She was bound to use no more than reasonable care under the circumstances, and no evidence of her failure to conform with such a standard can be found in this record.

The judgment against defendants Silver Rod Stores, Inc., and Harrison should be affirmed, with costs, and the judgments against defendant Seligman should be reversed and the complaint as against said defendant dismissed, with costs in all courts.

Crane, Ch. J., Lehman, Hubbs, Loughran and Finch, JJ., concur; Crouch, J., not sitting.

Judgment accordingly.


source: Caselaw Access Project

author: Loughran, J.

license: Public Domain

text:
    In the Matter of the Will of Antonin Chapal, Deceased. Francoise N. Hepworth et al., Individually and as Administrators of the Estate of Blanche Chapal, Deceased, Appellants and Respondents. Claudia Chapal et al., Respondents and Appellants. Charles H. Stoll et al., as Trustees under the Will of Antonin Chapal, Deceased, Respondents.

      (Submitted November 21, 1935;
    decided January 14, 1936.)

      H. Wilford Leavy for Francoise N. Hepworth et al., individually and as administrators of the estate of Blanche Chapal, deceased, appellants and respondents.
    The proceeds of sale of real property acquired by trustees upon the foreclosure of a mortgage in which trust funds were invested should be equitably apportioned between principal and income, in the absence of an express contrary intent. (Meldon v. Devlin, 31 App. Div. 146; 167 N. Y. 573; Roosevelt v. Roosevelt, 5 Redf. 264; Matter of Marshall, 43 Misc. Rep. 238; Matter of Myers, 161 N. Y. Supp. 1111; Matter of Jackson, 135 Misc. Rep. 329; 232 App. Div. 425; 258 N. Y. 281, 610; Hagan v. Platt, 48 N. J. Eq. 206; Matter of Tuttle, 49 N. J. Eq. 259; Trenton Trust & Safe Deposit Co. v. Donnelly, 65 N. J. Eq. 119; Equitable Trust Co. v. Swoboda, 113 N. J. Eq. 399; Wallace v. Wallace, 90 S. C. 61; Matter of Moore, 54 Ch. 432; Matter of Hubbuck, [1896] 1 Ch. 754; Matter of Alston, [1901] 2 Ch. 584; Matter of Atkinson, [1904] 2 Ch. 160; Stewart v. Kingsale, [1902] 1 Ir. 496; Matter of Plumb, 27 Ont. 501; Matter of Lichtenberg, 171 N. Y. Supp. 570; Matter of Osborne, 209 N. Y. 450; Matter of Tamargo, 220 N. Y. 225;
      Curtiss v. Brown, 29 Ill. 201; Gavin v. Curtin, 171 Ill. 640; New York St. Rys. Co. v. Security Trust, 135 Misc. Rep. 456; Furniss v. Cruikshank, 230 N. Y. 495; Lawrence v. Littlefield, 215 N. Y. 561; Spencer v. Spencer, 219 N. Y. 459; Matter of Jackson, 258 N. Y. 281.) General expenses of accounting incurred by the trustees should be borne by the principal, and not by the income. (Matter of Petremont, 213 App. Div. 318; 241 N. Y. 586; Matter of Eddy, 207 App. Div. 162; Matter of Scott, 135 Misc. Rep. 661; Matter of Marvin, 135 Misc. Rep. 899; Matter of Dimond, 138 Misc. Rep. 648; Matter of Bechtoldt, 148 Misc. Rep. 8; Matter of Williams, 148 Misc. Rep. 14.)

      Edward B. Schulkind for Claudia Chapal et ah, respondents and appellants.
    The method of accounting directed by the Surrogate with reference to the real estate works a grave injustice to the remaindermen. (Matter of Osborne, 209 N. Y. 450; Matter of Albertson, 113 N. Y. 434; Lockman v. Reilly, 95 N. Y. 64; Matter of Brewster, 148 Misc. Rep. 390; Hancox v. Wall, 28 Hun, 214; Matter of Lichtenberg, 114 Misc. Rep. 89.) The life tenant should receive only such income as is actually produced by each parcel of real estate bought in on foreclosure, and there should be no allocation of any portion of the sale price as delayed income. The Appellate Division did not err in substituting a provision in the decree that the proceeds of the sale of any particular parcel should be added to principal. (Trust Co. v. Hall, 5 Dem. 73; Roosevelt v. Roosevelt, 5 Redf. 264; Matter of Jackson, 258 N. Y. 281; Furniss v. Cruikshank, 230 N. Y. 495; Lawrence v. Littlefield, 215 N. Y. 561; Schoonmaker v. Van Wyck, 31 Barb. 457.) There was no equitable conversion of the real estate held by the trustees. (Matter of Marshall, 136 Misc. Rep. 116.) Deficits in the operation of a parcel of real estate acquired through foreclosure of a mortgage in which estate funds had been invested should be charged to income. (Matter of Albertson, 113 N. Y. 434; Matter of Rowland, 280 N. Y. Supp. 542; Lawrence v. Littlefield, 215 N. Y. 561; Spencer v. Spencer, 219 N. Y. 459; Furniss
      v. Cruikshank, 230 N. Y. 495; Matter of Jackson, 258 N. Y. 281; Matter of Satterwhite, 262 N. Y. 339; Matter of Brooklyn Trust Co., 92 Misc. Rep. 674; Matter of Shepard, 136 Misc. Rep. 218; Matter of Tracy, 179 N. Y. 501.) Expenses incurred by the trustees for writing up and auditing the books and accounts of the trustees should be charged to income. (Matter of Boyle, 140 Misc. Rep. 523 Matter of Ardrey, 232 N. Y. 109; Matter of Myers, 161 N. Y. Supp. 1111; Matter of Cooper, 82 Misc. Rep. 324; Matter of Cotheal, 121 Misc. Rep. 665; Matter of Shepard, 136 Misc. Rep. 218; Lyons v. Wylde, 260 N. Y. 634.)

      H. Wilford Leavy and Julius Kaplan for Charles H. Stoll, as trustee, respondent.
    The proceeds of sale of real_property acquired by trustees upon the foreclosure of a mortgage in which trust funds were invested should be equitably apportioned between principal and income, in the absence of an expressed contrary intent, in the ratio which the total principal invested and the total unpaid interest thereon bear to each other. (Meldon v. Devlin, 31 App. Div. 146; 167 N. Y. 573; Matter of Myers, 161 N. Y. Supp. 1111; Matter of Marshall, 43 Misc. Rep. 238 Roosevelt v. Roosevelt, 5 Redf. 264; Matter of Jackson, 135 Misc. Rep. 329; 232 App. Div. 425; 258 N. Y. 281, 610; Hagan v. Platt, 48 N. J. Eq. 206; Matter of Tuttle, 49 N. J. Eq. 259; Trenton Trust & Safe Deposit Co. v. Donnelly, 65 N. J. Eq. 119; Equitable Trust Co. v. Swoboda, 113 N. J. Eq. 399; Wallace v. Wallace, 90 S. C. 61; Matter of Moore, 54 Ch. 432; Matter of Hubbuck, [1896] 1 Ch. 754; Matter of Alston, [1901] 2 Ch. 584; Matter of Atkinson, [1904] 2 Ch. 160; Stewart v. Kingsale, [1902] 1 Ir. 496; Matter of Plumb, 27 Ont. 501.) An apportionment of the proceeds of sale is required to effectuate the testamentary intent. (Lynde v. Lynde, 113 App. Div. 411; Moseley v. Marshall, 22 N. Y. 200; Matter of Hoyt, 160 N. Y. 607; McLouth v. Hunt, 154 N. Y. 179; Clarke v. Clarke, 145 N. Y. 476; Myer v. Cohen, 111 N. Y. 270;
      Matter of Tracy, 179 N. Y. 501.) Expenses incurred by the trustees in employing accountants to write up the books and accounts of investments made and of income received and distributed should be borne by principal. (Matter of Petremont, 213 App. Div. 318; 241 N. Y. 586; Merritt v. Merritt, 32 App. Div. 442; 161 N. Y. 634; Schoenherr v. Van Meter, 215 N. Y. 548; Matter of Dimond, 138 Misc. Rep. 648; Chisolm v. Hamersley, 114 App. Div. 565; Matter of Rohr, 145 Misc. Rep. 382; Matter of Williams, 148 Misc. Rep. 14.)

      Ralph Herbert Wiener for Eric W. Hunt, as trustee, respondent.
    There was no equitable conversion of the real estate involved. (Matter of Marshall, 136 Misc. Rep. 116.)

      Otis T. Bradley, Logan Fulrath, Vermont Hatch and Adrian D. Stevenson for Guaranty Trust Company of New York et al., amici curiae.

    Where a trustee forecloses a mortgage held in trust, and acquires the mortgaged premises .on foreclosure, and eventually sells the foreclosed premises, the proceeds of sale should be apportioned between the principal and income of the trust estate in the ratio which the total principal invested and the total ■unpaid interest thereon bear to each other. (Meldon v. Devlin, 31 App. Div. 146; 167 N. Y. 573; Matter of Marshall, 43 Misc. Rep. 238; Matter of Myers, 161 N. Y. Supp. 1111; Matter of Jackson, 135 Misc. Rep. 329; Matter of Moore, 54 Ch. 432; Matter of Hubbuck, [1896] 1 Ch. 754; Matter of Alston, [1901] 2 Ch. 584; Matter of Atkinson, [1904] 2 Ch. 160; Stewart v. Kingsale, [1902] 1 Ir. 496; Matter of Plumb, 27 Ont. 501; Wallace v. Wallace, 90 S. C. 61; Hagan v. Platt, 48 N. J. Eq. 206; Matter of Tuttle, 49 N. J. Eq. 259; Trenton Trust & Safe Deposit Co. v. Donnelly, 65 N. J. Eq. 119; Equitable Trust Co. v. Swoboda, 113 N. J. Eq. 399.)

      Harrison Tweed, John E. Lockwood and William Parsons for The Chase National Bank of the City of New York, amicus curiae.

    An apportionment as between principal and income is in accordance with the primary intention of the creator of the trust. (Lawrence v. Littlefield, 215 N. Y. 561; Spencer v. Spencer, 219 N. Y. 459; Furniss v. Cruikshank, 230 N. Y. 495; Matter cf Jackson, 258 N. Y. 281; Matter of Satterwhite, 262 N. Y. 339.) The real estate is security for both principal and income. (Matter of Atkinson, [1904] 2 Ch. 160.) An apportionment should be made. (Meldon v. Devlin, 31 App. Div. 146; 167 N. Y. 573; Matter of Marshall, 43 Misc. Rep. 238; Matter of Myers, 161 N. Y. Supp. 1111; Matter of Jackson, 135 Misc. Rep. 329; Roosevelt v. Roosevelt, 5 Redf. 264; Matter of Moore, 54 Ch. 432; Matter of Alston, [1901] 2 Ch. 584; Matter of Atkinson, [1904] 2 Ch. 160; Matter of Barker, [1897] W. N. 154; Lyon v. Mitchell, [1899] W. N. 27; Matter of Ancketill, 27 L. R. Ir. 331; Stewart v. Kingsale, [1902] 1 Ir. 496; Hagan v. Platt, 48 N. J. Eq. 206; Matter of Tuttle, 49 N. J. Eq. 259; Equitable Trust Co. v. Swoboda, 113 N. J. Eq. 399.)
   Loughran, J.

This proceeding was brought for the construction of a will and for the instruction of trustees respecting their administration of parts of a testamentary trust estate.

Antonin Chapal, who died in July, 1928, divided his residuary estate into two equal parts which he devised and bequeathed to his executors in trust with directions in substance as follows: (1) To pay the income of one part to his wife, Blanche Chapal, during her life, and on her death to distribute three-fourths of the principal thereof to his daughter, Francoise, and one-fourth to his stepson, Robert Irving Chapal. (2) To pay the income of the other part to the testator’s daughter, Francoise, during her life; on her death to distribute the principal thereof to her surviving issue per stirpes; and, in default of such issue, to distribute three-fourths of the principal to the testator’s heirs at law ” and one-fourth to his stepson.

No question arises in respect of the trust for the life of the testator’s wife. On her death in 1931, that trust ended and the principal thereof vested accordingly.

What follows has reference only to the respective positions of the parties in interest under the trust for the life of the testator’s daughter (now Francoise Naylor Hepworth).

The Surrogate ruled that the provision for the “ heirs at law ” of the testator was a gift to that class which should constitute his heirs at law if he had lived until the death of his daughter and died intestate immediately thereafter.” All parties accept that construction. The class so defined will be called for convenience the heirs presumptive of the testator.

It appears that the appraised value of the trust was $598,641.28. Except for real estate carried at $35,750, the assets were personal property, including mortgages in which the trustees had invested pursuant to authority conferred by the will. From 1930 to 1933, inclusive, the average annual earned income was roughly $17,000. In 1934 income was substantially reduced, because through the foreclosure of mortgages the trustees acquired real estate which in part only has been productive. The trustees sought the directions of the Surrogate as to how in such a situation the balance was to be held even between opposing interests.

Instructions given were as follows: "The trustees shall set up separate accounts in their books for each separate parcel acquired as aforesaid, and such separate accounts shall be kept until such particular parcel is sold. If the income of a particular parcel is insufficient to pay the carrying charges thereof, the trustees are hereby directed to pay the deficiency from the principal of the trust estate and not from the income thereof. If the income of a particular parcel is more than sufficient to pay the carrying charges thereof, the trustees are hereby directed to exercise their own discretion and judgment with respect to distributing such surplus income entirely or to retaining the same or some part thereof to meet possible subsequent deficiencies. If such surplus exists in the case of a particular parcel as to which the trustees have theretofore taken or applied funds from the principal of the trust estate to pay deficiencies of income, the trustees are directed to reimburse the principal of the trust estate from such surplus income. Upon the sale of any particular parcel the trustees are directed to properly allocate as between principal and income the proceeds of such sale.”

Upon appeal by the heirs presumptive of the testator to the Appellate Division, that court in its opinion said that the carrying charges should be paid out of income (245 App. Div. 818, 819) but in its order left the contrary direction of the Surrogate undisturbed, and thereby modified the decree only by eliminating the provision that ' upon the sale of any particular parcel the trustees are directed to properly allocate as between principal and income the proceeds of such sale ’ and substituting therefor a provision that the proceeds shall be added to principal.” From that modification of the decree, Francoise Naylor Hepworth (the life tenant) and Robert Irving Chapal, individually and as temporary administrators of Blanche Chapal, deceased, appeal to this court.

We are in accord with the courts below in their treatment as separate units of properties acquired by the trustees through foreclosure. This method conforms to the procedure followed in Furniss v. Cruikshank (230 N. Y. 495, 509.) Practical good sense dictates its adoption here. No two parcels taken over by the trustees will be brought in on the same basis. Ordinary experience does not justify the expectation that any two can be sold under similar conditions.

The order of the Appellate Division follows the decree of the Surrogate as to the proper source of carrying charges pending a sale. A difference of view in respect of that subject is reflected only in the opinion of the higher court. Its dictum may be disregarded. If each parcel is to be managed separately, a deficit of carrying charges must be advanced out of principal.

It was decreed by the Surrogate that the proceeds of a sale should be allocated between principal and income. It was ordered by the Appellate Division that the sale proceeds should be returned to the capital account in every instance. Here, we think, the Surrogate was right and that the modification of his decree by the Appellate Division was unwarranted.

No rule of apportionment has been stated. Doubtless the Surrogate thought it expedient to await the event of a liquidation with loss to both principal and income, a resulting profit not having been supposed. His opinion tells us, however, that he may make an allocation in accordance with the rule applied by us in Furniss v. Cruikshank (supra), and this state of the record persuades us to suggest that it is unnecessary to rely upon the analogy of that and like cases. There the court was dealing with property that had been unproductive in the ownership of the testator. In the opinion it was said: "Authorities are of little help. The construction of every will depends upon the varying language used and the varying conditions surrounding the testator ” (p. 505). After discussion of the background against which the will was to be interpreted, it was held that an equitable conversion was effected as of one year after the trust was set up. We have now another problem — that of the liquidation of real estate acquired of necessity because of default on a mortgage investment.

In such an investment situation what is involved is the salvage of a security. The security it is to be remembered is a security not for principal alone but for income as well. On a sale, therefore, the proceeds should be used first to pay the expenses of the sale and the foreclosure costs and next to reimburse the capital account for any advances of capital for carrying charges not theretofore reimbursed out of income from the property. Then the balance is to be apportioned between principal and income in the proportion fixed by the respective amounts thereof represented by the net sale proceeds. In the capital account will be the original mortgage investment. In the income account will be unpaid interest accrued to the date of sale upon the original capital. The ratio established by these respective totals determines the respective interests in the net proceeds of a sale. Since that matter has not been argued before us, we do not fix the rate at which interest is to be computed.

This method of apportionment for cases of the present type is not novel. Its essential principle was recognized and applied in Meldon v. Devlin (31 App. Div. 146; 167 N. Y. 573). (See also, Matter of Marshall, 43 Misc. Rep. 238.) Of course, that method may not be used when a will or trust indenture prescribes' a valid contrary course. That is not the case here.

A cross-appeal is taken by the heirs presumptive of the testator from that part of the order of the Appellate Division * * * which affirmed that part of the decree of the Surrogate’s Court * * * providing and directing that the reasonable expenses incurred by the trustees in the employment of accountants for the purpose of writing up and auditing their books and accounts shall be paid from the principal of the trust funds.” We see no reason why the principal of the trust should pay for services which can in fact fairly be related only to income. The decree should be modified so as to direct an apportionment accordingly of the expenses in question.

The order of the Appellate Division should be reversed and the decree of the Surrogate modified in accordance with this opinion and, as so modified affirmed, without costs.

Crane, Ch. J., Lehman, Hubbs, Crouch and Finch, JJ., concur; O’Brien, J., not sitting.

Ordered accordingly.


author: Hubbs, J.

text:
    Kenneth N. Devitt, Respondent, v. Continental Casualty Company, Appellant.
    (Argued December 10, 1935;
    decided January 14, 1936.)

      William F. Quinn and Grove L. Higgins for appellant.
    The right of a judgment creditor to recover in an action brought under section 109 of the Insurance Law (Cons. Laws, ch. 28) is no greater than the insured’s right to recover on the policy where he has paid the judgment and is seeking indemnity from the insurance company. (Weatherwax v. Royal Indemnity Co., 250 N. Y. 281; Coleman v. New Amsterdam Casualty Co., 247 N. Y. 271; Seltzer v. Indemnity Ins. Co., 252 N. Y. 330; Gerka v. Fidelity & Casualty Co., 251 N. Y. 51; Rushing v. Commercial Casualty Co., 251 N. Y. 302; Rosenberg v. Ocean Accident & Guarantee Corp., 251 N. Y. 563; Fox v. Employers’ Liability Asswr. Corp., 243 App. Div. 325; 267 N. Y. 609.) The Appellate Division erred in reading coverage into the contract of insurance and in its interpretation of the effect of section 109 of the Insurance Law. (Daly v. Haight, 170 App. Div. 469; 224 N. Y. 726; People v. City of Buffalo, 175 App. Div. 218; 220 N. Y. 715; Crooks v. Harrelson, 51 Sup. Ct. Rep. 49; Rohan v. Hartford Accident & Indemnity Co., 266 N. Y. 545.) By permitting his fourteen-year, six months, old son illegally to operate his motor vehicle, the assured violated the specific provisions of his liability insurance contract with the appellant, and no legal liability is imposed upon the appellant in this action. (S. & E. Motor Hire Corp. v. N. Y. Indemnity Co., 255 N. Y. 69; Rohan v. Hartford Accident & Indemnity Co., 266 N. Y. 545; Weiss v. Preferred Accident Ins. Co., 241 App. Div. 545; Letson v. Sun Indemnity Ins. Co., 147 Misc. Rep. 690; 241 App. Div. 629; Gerka v. Fidelity & Casualty Co., 251 N. Y. 51; Brustein v. New Amsterdam Casualty Co., 255 N. Y. 137; U. S. F. & G. Co. v. Guenther, 281 U. S. 34; Lavine v. Indemnity Ins. Co., 260 N. Y. 399.) The liability of the appellant, if any, must be determined by the provisions and conditions of its policy contract with the insured. Respondent cannot establish a cause of action solely upon the liability of the insured to the injured creditor. (Coleman v. New Amsterdam Casualty Co., 247 N. Y. 271; Weatherwax v. Royal Indemnity Co., 250 N. Y. 281.)

      Louis A. Garbarini and Joseph F. Hanley for National Bureau of Casualty and Surety Underwriters, amicus curiae.

    The legislative intent in enacting section 109 of the Insurance Law and section 59 of the Vehicle and Traffic Law (Cons. Laws, ch. 71) was not to read into “ voluntary ” policies, compulsory insurance. The assured in permitting his son, a minor under the age limit fixed by law, to operate illegally the motor vehicle covered in the policy, breached the policy and is, therefore, afforded no coverage. The [judgment creditor has no greater rights than the insured has under the policy. (Brustein v. New Amsterdam Casualty Co., 255 N. Y. 137; Lavine v. Indemnity Ins. Co., 260 N. Y. 399; Rohan v. Hartford Accident & Indemnity Co., 266 N. Y. 545; Letson v. Sun Indemnity Co., 241 App. Div. 629; Dileo v. Eagle Indemnity Co., 263 N. Y. 646; Coleman v. New Amsterdam Casualty Co., 247 N. Y. 271.) The operation of the car by the owner’s son without a license or permit was not a legal use or operation under section 109 of the Insurance Law. (Floyd v. Consolidated Indemnity & Ins. Co., 237 App. Div. 190; Cohen v. Metropolitan Casualty Ins. Co., 233 App. Div. 340.) The restrictions on coverage, limited by the conditions of the policy, are neither illegal nor violative of either section 59 of the Vehicle and Traffic Law or section 109 of the Insurance Law. (Plaumbo v. Ryan, 213 App. Div. 517; Coleman v. New Amsterdam Casualty Co., 247 N. Y. 271; Brustein v. New Amsterdam Casualty Co., 255 N. Y. 137; S. & E. Motor Hire Corp. v. New York Indemnity Co., 255 N. Y. 69; Rohan v. Hartford Accident Co., 266 N. Y. 545; Letson v. Sun Indemnity Co., 241 App. Div. 629; Taylor v. United States Casualty Co. 281 N. Y. Supp. 705; Delio v. Eagle Indemnity Co., 263 N. Y. 646; Lavine
      v. Indemnity Ins. Co., 260 N. Y. 399; Gerka v. Fidelity & Casualty Co., 251 N. Y. 51; Weiss v. Preferred Accident Ins. Co., 241 App. Div. 545.)

      Frank Gibbons and E. C. Market for General Accident, Fire and Life Assurance Corporation, Ltd., of Perth, Scotland, amicus curise.

    Violation of the exception of the policy is available to the defendant as a defense. (Letson v. Sun Ind. Co., 147 Misc. Rep. 690; 241 App. Div. 629; Taylor v. United States Casualty Co., 281 N. Y. Supp. 361.) The appellant did not violate the provisions of section 109 of the Insurance Law when it included the condition in its policy. (Bakker v. Ætna Life Ins. Co., 264 N. Y. 150.)

      Albert F. Devitt for respondent.
    An insurance'company which issues a liability policy within the State of New York must comply with section 109 of the Insurance Law. It cannot avoid or vitiate the provisions of this section by any stipulation in the policy. The insurer cannot exclude from its coverage even an unlawful act if such exclusion violates the provisions of section 109 of the Insurance Law. This law was made for the protection of the injured person. (Bakker v. Ætna Life Ins. Co., 264 N. Y. 150; Gochee v. Wagner, 257 N. Y. 344; Glennie v. Falls Equipment Co., 238 App. Div. 7; Grant v. Knepper, 245 N. Y. 158; Arcara v. Moresse, 258 N. Y. 211; Simons v. Monier, 29 Barb. 419; Witherstine v. Employers Liability Assur. Corp., 235 N. Y. 168.) “ Legally using or operating ” an automobile with the permission of the owner refers to the relationship existing between the owner and the driver. (Bakker v. Ætna Life Ins. Co., 264 N. Y. 150; Travelers Ins. Co. v. Russo, 155 Misc. Rep. 589; Messersmith v. American Fidelity Co., 232 N. Y. 161.) The policy covers use as well as operation and the appellant is hable by the express terms of its policy. (Grant v. Knepper, 245 N. Y. 158; Arcara v. Moresse, 258 N. Y. 211; Glennie v. Falls Equipment Co., 238 App. Div. 7.)
   Hubbs, J.

Respondent was injured in an automobile accident by being struck by a car owned by one Joseph H. Bennett. At the time of the accident the owner was seated on the front seat on the right-hand side of his car which was being driven by his son, Bertram Bennett, a boy fourteen years and six months of age. Joseph H. Bennett, the owner, was insured under a liability policy issued by appellant which contained the following clauses:

This insurance is subject to the following conditions, and failure on the part of the assured to comply therewith or with the provisions of any endorsement attached to this policy shall forfeit the right of the assured or of any judgment creditor of said assured to recover hereunder * * *.
“ 2. Exceptions. The assured will nob * * * permit any ’ * * * motor vehicle [covered hereby] to be operated (a) by any person under the age limit fixed by law or under the age of fourteen in any event, or who for any reason is not permitted by the laws of the State of New York to operate or drive motor vehicles * * *.”

Respondent sued Joseph H. Bennett, the owner, and recovered a judgment. The appellant insurance company disclaimed liability under its policy on the ground that the car was being operated by a person under the age fixed by law and did not take part in the defense of the action. An execution on the judgment against Bennett, the owner, having been returned unsatisfied, respondent brought this action to recover of appellant under its policy issued to Bennett. A jury was waived, the facts stipulated, and the trial court rendered a verdict of no cause of action. Respondent appealed to the Appellate Division which reversed by a divided court and judgment was ordered in favor of respondent.

The Appellate Division, in reversing, decided that the appellant, by virtue of section 109 of the Insurance Law (Cons. Laws, ch. 28), is liable under the policy for the acts of the driver, even though such driver while operating the car was under sixteen years of age, was violating the law and guilty of a crime.

By section 109 of the Insurance Law every policy of automobile liability insurance is required to be construed as insuring the owner against liability for damages for death or injuries to person or property resulting from negligence in the operation of such motor vehicle, in the business of such owner or otherwise, by any person legally using or operating the same with the permission, express or implied, of such owner.” In interpreting that section we have decided that an injured third party has, by virtue thereof, no greater rights against an insurer than are possessed by the insured.

“ The effect of the statute is to give to the injured claimant a cause of action against an insurer for the same relief that would be due to a solvent principal seeking indemnity and reimbursement after the judgment had been satisfied. The cause of action is no less but also it is no greater.” (Coleman v. New Amsterdam Casualty Co., 247 N. Y. 271, 275.)

In Taylor v. United States Casualty Co. (269 N. Y. 360), decided at the present term, we dealt with the question of the proper interpretation of a policy clause providing against liability while the car was being operated by a person “ under the age fixed by law ” where the car at the time of the accident was being operated by a boy under eighteen years of age but holding a junior operator’s license for which the legal age limit was sixteen years. We there held the insurer liable to injured third parties, although the operator at the time of the accident was violating the terms of his license, but the question presented in that case was one of policy coverage, and under the facts the insurer would have been liable to the insured.

We have already indirectly passed upon the question here involved and in effect have held the insurer not liable where the terms of the policy excluded liability while the car was being operated by a boy under the age of sixteen years. (Rohan v. Hartford Accident & Indemnity Co., 266 N. Y. 545.)

Section 109 of the Insurance Law, as we have repeatedly held, does not prevent a limitation of coverage. As said in Brustein v. New Amsterdam Casualty Co. (255 N. Y. 137, 143): “ A reasonable construction of the provision in question is that the policy must be read as if it contained an extended liability clause, but that it may be limited in amount and coverage as the parties may agree.” As to provisions which are illegal see Bakker v. Ætna Life Ins. Co. (264 N. Y. 150).

In the case at bar the coverage was limited by the provision for exclusion from liability while the car was being operated by any person under the age limit fixed by law.” The operator being under such age, the policy did not cover and the insurer did not agree to indemnify the owner against liability for injuries to persons occurring while the car was being operated by such a person, and by issuing a policy containing that clause it did not incur liability to third persons injured while the car was being so operated. By that clause in the policy that risk was excluded from coverage. (Draper v. Oswego County Fire Relief Assn., 190 N. Y. 12, 17.) Section 109 of the Insurance Law does not have the effect of extending the liability of the insurer to cover such operation of the car so as to permit a recovery by injured third persons where the policy excludes liability to the owner.

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

Crane, Ch. J., Lehman, O’Brien, Loughran and Finch, JJ., concur; Crouch, J., not sitting.

Judgment accordingly.


text:
    Conlew, Inc., Appellant, v. Henry D. Kaufmann, Defendant, and Herman Floersheimer et al., Respondents.

      (Argued November 26, 1935;
    decided January 14, 1936.)

      Leonard G. Bisco and Samuel Chugerman for appellant.
    Respondents’ contract of guaranty was an unilateral and unconditional promise to pay the premium when due. (Dwight v. Germania Life Ins. Co., 103 N. Y. 341; Brady v. Cassidy, 104 N. Y. 147; Schoonmaker v. Hoyt, 148 N. Y. 425; DeRemer v. Brown, 165 N. Y. 410; Rosenthal v. American Bonding Co., 207 N. Y. 162; Cream of Wheat Co. v. Crist Co., 222 N. Y. 487; First Nat. Bank v. National Surety Co., 228 N. Y. 469; Matter of Loew’s Buffalo Theatres, Inc., 233 N. Y. 495; Classic Theatre Corp. v. Amster, 240 N. Y. 479; Kean v. Nat. Surety Co., 241 N. Y. 252; Brainard v. N. Y. C. R. R. Co., 242 N. Y. 125; Jacksonville Ry. Co. v. Hooper, 160 U. S. 514; Cassin v. Stillman-Delehanty-Ferris Co., 185 App. Div. 63; Heimerdinger v. Schnitzler, 231 App. Div. 649; Deveso v. Chandler, 210 App. Div. 684; Silberman v. Clark, 96 N. Y. 522; Hart v. Cort, 165 App. Div. 583; Clark v. Dewandelaer, 124 N. Y. Supp. 941; Johnson v. City of New York, 191 App. Div. 205; Loud v. Pomona Land Co., 153 U. S. 564; Gates v. McKee, 13 N. Y. 232; Frese v. Mutual Life Ins. Co., 105 Pac. Rep. 265.) When the premium was not paid, respondents’ agreement was wholly breached. The resulting damage to the bank was not merely the amount of the premiums, but the value of the policy which was thus extinguished. (Douglass v. Murphy, 16 Up. Can. Q. B. 113; Du Brutz v. Bank of Visalia, 87 Pac. Rep. 467; Gerard v. Cowperthwait, 2 Misc. Rep. 371; 143 N. Y. 637; Gray v. Murray, 3 Johns. Ch. 167; Soule v. Union Bank, 45 Barb. 111; Langan v. American Legion of Honor, 34 Misc. Rep. 629; Marconi Wireless Tel. Co: v. Universal Transp. Co., 194 App. Div. 272; 233 N. Y. 581; Siegel v. Spear & Co., 195 App. Div. 845; 234 N. Y. 479; Jacksonville M. P. Ry. & Nav. Co. v. Hooper, 160 U. S. 514;
      Vaugh v. Reddick, 106 S. W. Rep. 292; Scheele v. Lafayette Bank, 97 S. W. Rep. 621; Alsop Motor Co. v. Barker, 123 S. E. Rep. 350; Hackett v. Cash, 75 So. Rep. 52; Toplitz v. Bauer, 161 N. Y. 325; Bailey v. American Deposit & Loan Co., 52 App. Div. 402; 165 N. Y. 672; Grossman v. Lindemann, 67 Misc. Rep. 437; Griggs v. Day, 158 N. Y. 1; Landusky v. Beirne, 80 App. Div. 272; 178 N. Y. 551.) Appellant was not obliged, in mitigation of damages, to pay the premiums or obtain a new policy on respondents’ account. (Dubrutz v. Bank of Visalia, 87 Pac. Rep. 467; Sherman v. Mutual Life Ins. Co., 102 Pac. Rep. 419; Marconi Wireless Tel. Co. v. Universal Transp. Co., 194 App. Div. 272; 233 N.Y. 581; Jacksonville M. P. Ry. & Nav. Co. v. Hooper, 160 U. S. 514; Franck v. Stout, 139 Wis. 223; Gardner v. Welch, 110 N. W. Rep. 110; Buhl v. Alined, 238 Pac. Rep. 298; Coulter v. Sausalito Co., 10 Pac. Rep. [2d] 780; Shaw v. City of Greenston, 101 S. E. Rep. 27; Nichols v. Scranton Steel Co., 137 N. Y. 471.) Appellant lawfully surrendered the policy to the insurance company for its cash value in mitigation of damages. The surrender was not in any sense a breach of the guaranty agreement. (Toplitz v. Bauer, 161 N. Y. 325; Bailey v. American Deposit & Loan Co., 52 App. Div. 402; 165 N. Y. 672; Palmer v. Mutual Life Ins. Co., 38 Misc. Rep. 318; Bush v. Block, 187 S. W. Rep. 153; Sherman v. Mutual Life Ins. Co., 102 Pac. Rep. 419.) The damages were adequately and properly proven. (Wakeman v. Wheeler & Wilson Mfg. Co., 101 N. Y. 205; Toplitz v. Bauer, 161 N. Y. 325; Kelly v. Security Mut. Life Ins. Co., 106 App. Div. 352; Langan v. American Legion, 34 Misc. Rep. 629; Farley v. Union Mut. Life Ins. Co., 41 Hun, 303; 118 N. Y. 685; People v. Security Life Ins. & Annuity Co., 78 N. Y. 114; Hoffer Oil Corp. v. Carpenter, 34 Fed. Rep. [2d] 589; Rynveld v. Dupuis, 39 Fed. Rep. [2d] 399; Schell v. Plumb, 55 N. Y. 592; Sauter v. N. Y. C. & H. R. R. R. Co., 66 N. Y. 50; Proctor v. Union Coal Co., 243 Mass. 428.)

      Joseph M. Baum, for respondents.
    The guarantor is bound only by the strict letter or precise terms of his contract and the claim against him is strictissimi juris. (Hamilton Trust Co. v. Shevlin, 156 App. Div. 307; 215 N. Y. 735; Marcus v. Liebowits, 107 N. Y. Supp. 597.) The agreement sued on was not one of guaranty of collateral. (Fleischman v. Furgueson, 223 N. Y. 235; Streat Coal Co. v. Frankfort Gen. Ins. Co., 237 N. Y. 60; Sun P. & P. Assn. v. Remington P. & P. Co., 235 N. Y. 338; Matter of Loew’s Buffalo Theatres, Inc., 233 N. Y. 495; Rosenthal v. American Bonding Co., 207 N. Y. 162.) The measure of damages was the amount of the premium unpaid by the respondents if paid by the appellant’s assignor. (National Mahaiwe Bank v. Hand, 80 Hun, 584; 89 Hun, 329; Dodd v. Jones, 137 Mass. 322; Elfenbein v. Abbondanza, 64 Misc. Rep. 176.)
   Hubbs, J.

The respondents on or about January 16, 1925, executed and delivered to appellant’s assignor a guaranty agreement in the following form: “ In order to induce the Chatham Phenix National Bank of the City of New York to continue carrying the loans now due to it from Henry D. Kaufmann and Company which are secured in part by an assignment of Policy No. 797305 of the Mutual Benefit Life Insurance Company on the life of Henry D. Kaufmann, and in consideration for such extensions as the Bank may give to Henry D. Kaufmann and Company, the undersigned jointly and severally agree:

That the premium upon said policy in the amount of $767.40 per year payable on the 5th day of April of each and every year will be paid when the same becomes due from time to time. In the event that the Chatham Phenix National Bank shall receive any notice that the premium on said policy is in default, the said Bank is hereby authorized to pay said premium at its option and we agree to reimburse it upon demand. * * * ”

Kaufmann thereafter desired to procure a loan on the policy and respondents, on or about April 21, 1932, wrote the appellant’s assignor in part as follows: “We hereby consent to the loan proposed to be made and agree that this loan shall in no manner affect your rights of recourse against us as indicated by the terms and conditions of the guaranty executed by us under date of January 16, 1925. We also hereby ratify and confirm the said guaranty and agree that all the terms, covenants and conditions thereof are now and shall continue in full force and effect.”

On June 11, 1932, appellant’s assignor advised respondents of receipt from the insurer of notice of a premium to become due on July 5, 1932, giving the amount to become due and concluding thus: “Inasmuch as we hold your guarantee of the payment of premiums under this policy, you should take necessary action to be sure that said premiums are paid as due.”

It does not appear that the insurer thereafter gave notice to appellant’s assignor of a default in payment of premiums nor that the appellant’s assignor after default in payment of the premium due on July 5th had notice, actual or constructive, of such default prior to the expiration on August 5, 1932, of the days of grace allowed by the terms of the policy for the payment of premiums. On the contrary, that appellant’s assignor believed that the premium had been paid by the insuredjarjespondents is indicated by the following letter sent to them on August 13th, 1932, by appellant’s assignor:

“ On June 11th we forwarded you premium notiee~of the Mutual Benefit Life Insurance Company for payment due July 5th on your Policy #797303 in the amount of $204.47 and to date have not received from you the company’s receipt for our inspection.
“ Please forward this receipt to us and we will return it to you when it has served our purpose.”

The premium in question not having been paid, the policy lapsed. The assignee of the policy then had options of which it might avail itself, namely, to take extended insurance for a period of 15 years, 114 days, in the amount of the face of the policy, $30,000; $11,580 of paid up insurance; or $1,983.38 as cash surrender value. It took the cash surrender value, credited the amount on Kaufmann’s obligations, and assigned its cause of action to appellant which instituted this action against respondents as guarantors to recover the amount of Kaufmann’s remaining indebtedness, being the sum of $15,024.10. At the trial appellant contended that the amount recoverable was the value of the collateral less the amount realized thereon. As to the value of the collateral, it was appellant’s contention that the proper amount was that sum which invested at four per cent would produce in 20.91 years, the life expectancy of the assured, the sum fo $30,000, the face amount of the policy, which sum it proved to be $13,059.

On default the appellant’s assignor had a right to surrender the policy for its cash surrender value. (Toplitz v. Bauer, 161 N. Y. 325, 332; Bailey v. American Deposit Co., 52 App. Div. 402, 403, 404.)

The agreements under which the obligations of Kaufmann were extended by appellant’s assignor contained a provision that upon “ non-payment of this note or of any other liabilities ” to the appellant’s assignor, it might at its option sell the policy at public or private sale without notice.

The trial court dismissed the complaint at the close of appellant’s case upon the ground that the guaranty was not a guaranty of collateral, that the agreement cast upon the appellant’s assignor the obligation to pay the premium and to proceed against the guarantors to recover the amount of the premium paid, and that appellant was not entitled to any further damage which resulted from the breach of the agreement that the premiums would be paid when due. The judgment has been unanimously affirmed by the Appellate Division. (243 App. Div. 761.)

We interpret the agreement as constituting an obligar tian on the part of the respondents to prevent a lapsing of the policy through non-payment of premiums, and as imposing upon them in the event of a breach of that agreement, liability for such damages as may be found to have resulted therefrom. We do not construe it as imposing upon appellant’s assignor, except at its option, an obligation to pay such premium.

The agreement constituted an absolute guaranty of payment. It was an entire contract and when respondents breached it there immediately arose a valid cause of action in favor of appellant’s assignor to recover its entire damage caused by such breach. Respondents understood that the agreement was an agreement of guaranty. They so stated in their letter of April 21, 1932, heretofore quoted.

Even if the agreement were to be construed as placing upon appellant’s assignor an obligation to pay the premium in case of receipt by it of notice of default, it is clear that as to the premium in question no such obligation resulted for the reason that no notice of default was received by it prior to the lapse of the policy. The notice which it received was not a notice of default but rather of a premium to become due. Had it paid the premium before the due date, it could not have recovered of respondents the amount paid, as it could not be known that the assured or someone in his behalf would not pay it before the due date. Only during the days of grace was there a default which could have been cured without loss of the policy and during that period plaintiff’s assignor did not know that its suggestion to respondents that the premium be paid had not been complied with.

On the other hand, respondents, by paying the premium and taking over the policy, could have protected themselves against loss because of their guaranty.

Respondents breached their agreement when the premium was not paid. That resulted in damage to appellant’s assignor not only of the amount of the premium but of the value of the policy, which lapsed because of such failure to pay the premium. (Gerard v. Cowperthwait, 2 Misc. Rep. 371; affd., 143 N. Y. 637; Gray v. Murray, 3 Johns. Ch. 167.)

In the Gerard case the defendant gave a bond to the plaintiff which read in part: whereas the above bounden Frank H. Cowperthwait has agreed and does hereby agree in consideration of the sum of one dollar to him in hand paid, the receipt whereof is hereby acknowledged, to pay the premiums of insurance on the said policy as the same may become due from time to time” (p. 372).

The General Term of the Court of Common Pleas decided that the default of the defendant in paying a premium made him liable for the entire damage resulting. The court said: In this case Cowperthwait agreed to pay the premiums on the policy of insurance described in the bond when they became due. He failed to pay the March premium, and the policy in consequence of that failure lapsed and was void. No premium could become payable thereon at any time thereafter. The breach of the contract on his part was of necessity total, and the plaintiff must recover in this action his full and final damages. Besides, the loss of the policy was the natural and approximate result of the failure of the appellant to pay the premium. Had he done so the policy would now be alive; it became inoperative on his failure to pay the March premium. In such case the damages are the value of the policy. (People v. Security, etc., Co., 78 N. Y. 114.) The appellant had full knowledge of the special circumstances affecting the question of damages and that his breach would cause the policy to lapse, and we must, therefore, infer that the contract was entered into upon the basis of these facts and that the parties had contemplated them in fixing the amount of the damages defendant was to pay at $10,000” (p. 380). That decision was affirmed by this court.

On the record now before us there is no exception based upon an objection sufficient to raise a question as to whether or not a proper rule was followed by appellant in attempting to prove the damage resulting to its assignor. The objections made were based on the contention that the appellant was not entitled to recover any damages, as respondents’ obligation was to pay appellant’s assignor only the amount which the latter might pay under its option to pay premiums in case of respondents’ fault in so doing, and were not directed to the question of the sufficiency of the proof offered to establish the amount of the damage should damage be found to have resulted. Upon a new trial the question of the amount of such damage will be an issue. We reach the conclusion that the proof made did not tend to establish the actual damage resulting to appellant’s assignor, since it assumed the loss of appellant’s assignor to be the face amount of the original policy, whereas the policy was held as collateral only and the interest of appellant’s assignor was measured by the amount of the obligations for which it stood as collateral rather than the face amount of the policy. We deem it proper, therefore, in so far as it is possible to do so upon the present record, to point the way to a proper solution of the problem presented.

Where the interest of a claimant in a policy is entire and unlimited by contract and equal protection is not otherwise available, it has quite generally been held that the amount to be recovered is the value of the policy destroyed. (People v. Security Life Ins. & Annuity Co., 78 N. Y. 114; Toplitz v. Bauer, supra; Whitehead v. New York Ins. Co., 102 N. Y. 143, 156; Kelly v. Security Mut. Life Ins. Có., 106 App. Div. 352; revd. on other grounds, 186 N. Y. 16; Speer v. Phoenix Mut. Life Ins. Co., 36 Hun, 322, 323; Gray v. Murray, supra.) That value, however, may not be the face of the policy. In each of the cases where the courts have decided that the face of the policy should measure the amount of the recovery the interest of the claimant was entire and anlimited by contract, and for that reason the face of the policy measured the amount of claimant’s loss. .

The amount to be recovered is ^subject to contract limitation. (Gerard v. Cowperthwait, supra.)

Likewise, it has been recognized that there must be an entirety of interest in the policy on the part of a claimant to warrant recovery of the face amount. (Kelly v. Security Mut. Life Ins. Co., supra.)

Where the assured is in being and still insurable, so that a new policy for a like amount and in a solvent company is obtainable, the value of the policy lost ceases to be the measure of liability and the cost of a new policy forms the basis for determining the amount of a recovery. (Toplitz v. Bauer, supra; Keyser v. Mutual Reserve Fund Life Assn., 60 App. Div. 297.)

Where, however, the assured has died or is not insurable, the value of the policy lost furnishes the basis for computing actual damage. (Toplitz v. Bauer, supra; Whitehead v. New York Ins. Co., supra; Kelly v. Security Mut. Life Ins. Co., supra; Gray v. Murray, supra; Speer v. Phoenix Mut. Life Ins. Co., supra.)

In determining either the cost of a new policy or the value of the policy lost, life expectancy tables may be used. (Toplitz v. Bauer, supra; Kelly v. Security Mut. Life Ins. Co., supra.)

The policy in the case under consideration was held as collateral for certain specified obligations and those obligations being not greater than the face of the policy lost, form the basis for measuring the loss to appellant’s assignor or the value to it of the policy lost. Appellant’s interest in the policy is no greater than that of its assignor as it has not acquired the interests of those who would be entitled to the policy or the proceeds thereof but for the assignment of the policy as collateral. It appears that the assured survived both the loss of the policy and the trial of the action. It may be presumed that he was insurable, as there is no proof to the contrary. (People v. Security Life Ins. & Annuity Co., supra, at p. 127.) Therefore, the extent of any possible loss to appellant or its assignor would be the amount of the obligations for which the policy stood as collateral plus interest thereon to such time as it might have collected on the policy had it not been lost. Since the amount of that interest cannot be determined with exactitude resort may be had to life expectancy tables for the purpose of determining that interest total. Having determined in that manner the amount of the loss, and assuming that the assured remained insurable at the time of the loss, the cost of carrying a policy of like nature and in a solvent company for the amount representing the total of the obligation plus interest so computed, if not in excess of the face of the original policy, with interest to the date of the recovery and with proper credit for the surrender value of the original policy, represents the amount for which recovery should be had. Since appellant’s assignor was not under the obligation of paying premiums on the original policy, no deduction of an amount which would have been required to have been paid for carrying that policy should be allowed.

In other words, assuming obligations secured by the lost policy amounting to $10,000 and an estimated cost of carrying those obligations for the probable life of the assured as determined by use of mortality tables amounting to $5,000, a new policy for $15,000 would be deemed adequate to protect the assignor on the obligations secured. If the cost of carrying such a policy during the probable life of the assured as determined by the use of mortality tables were shown to be $4,000, the recovery to which plaintiff would be entitled would be $4,000 less the amount paid on surrender of the original policy and plus interest on the remaining sum to the date of recovery. Of course, if the obligations secured plus interest as so estimated should total more than $30,000, the face of the original policy, the cost of a new policy for $30,000 would be substituted for the cost of a policy for the amount of the obligations plus interest in arriving at the amount of recovery.

If it should appear upon a new trial that the insured was not in an insurable condition when the original policy was lost through the default of the respondents, the measure of damage would be the value to the appellant’s assignor of the policy lost. Since it was protected by the original policy to the extent of the full amount of the obligations for which the original policy was assigned as security and was protected by the guaranty of payment of premiums on the original policy given by respondents, the principal of the obligations represents the equivalent of the value to it of the policy lost. As those obligations did not exceed $30,000, the face of the original policy, recovery should be in the amount of the principal of the obligations secured, less the surrender value of the policy received, and to which should be added interest from the breach of respondents’ agreement to pay premiums to the date of recovery. (Toplitz v. Bauer, supra, at p. 336.)

The rules suggested for use in determining the measure of damages assume a continuance of the life of the assured and non-payment of the obligations secured. Death of the assured prior to a computation of damages would require the substitution of the actual period of continued life for estimates arrived at through the use of life expectancy tables. (People v. Security Life Ins. & Annuity Co., supra.)

Likewise, credit should be given in computing defendants’ liability on any theory for payments, if any, made subsequent to the breach which have resulted in a reduction of the loss to which appellant’s assignor would otherwise have been liable.

As the trial court was in error in dismissing the complaint upon the ground stated above, it is unnecessary to discuss other questions argued on this appeal.

The judgments should be reversed and a new trial granted, with costs to abide the event.

Crane, Ch. J., Lehman, O’Brien, Loughran and Finch, JJ., concur; Crouch, J., not sitting.

Judgments reversed, etc.


author: O’Brien, J. Lehman, J.

text:
    In the Matter of Albert G. Baerenklau et al., Copartners, Doing Business as Baerenklau & Company, Respondents, against Edwin H. Thatcher, as Commissioner of Buildings of the Borough of Brooklyn, Appellant.
    (Argued November 30, 1935;
    decided January 14, 1936.)

      Benjamin Reass for appellant.
    Chapter 764 of the Laws of 1933 completely vested in the Department of Buildings sole jurisdiction — to the exclusion and divestment of every other municipal department — over buildings, and all matters pertaining to them, and transferred to the Department of Buildings all powers of the Fire Commissioner relating to fire prevention, including jurisdiction over the installation of oil burners and tanks. (City of New York v. Stewart Realty Co., 109 App. Div. 702; People ex rel. Beinert v. Miller, 100 Misc. Rep. 318; Lakes Island Realty Co. v. McDermott, 96 Misc. Rep. 37; Grady v. National Conduit & Cable Co., 153 App. Div. 401; Brill v. Miller, 140 App. Div. 602; Bradley v. Buffalo, N. Y. & E. R. R. Co., 34 N. Y. 427; Hyatt v. Taylor, 51 Barb. 632.)

      Abraham Lillienthal and Irving A. Heimlich for respondents.
    Chapter 764 of the Laws of 1933 did not transfer to the Commissioner of Buildings the jurisdiction of the Fire Department over combustibles including jurisdiction over the matter involved in this proceeding. (United States Trust Co. v. Blake, 234 N. Y. 273; Matter of Browning v. Adamson, 175 App. Div. 526; 220 N. Y. 585; People v. 181 Boerum St. Co., 233 N. Y. 268; People v. Kaye, 212 N. Y. 407; New York State Investing Co. v. Brady, 214 App. Div. 592; New York Fire Department v. Atlas S. S. Co., 106 N. Y. 566; Matter of Emerson v. Buck, 230 N. Y. 380; People ex rel. Hallock v. Hennessy, 205 N. Y. 301; City Bank F. T. Co. v. N. Y. C. R. R. Co., 253 N. Y. 49.)

      Paul Windels, Corporation Counsel {Paxton Blair and Edmund L. Palmieri of counsel), for Fire Commissioner of the City of New York, amicus curiae.

    The authority of the Fire Department to make inspections, regulations and issue permits with respect to the storage of combustibles is clearly conferred by section 774 of the charter of the city of New York (L. 1901, ch. 466). (City of New York v. New York City Ry. Co., 193 N. Y. 543; Peterson v. Martino, 210 N. Y. 412; People v. Dwyer, 215 N. Y. 46.)
   O’Brien, J.

Subsequent to the enactment of chapter 764 of the Laws of 1933, these petitioners installed for the owner of certain premises in Brooklyn an oil burning furnace and a tank capable of holding two hundred and seventy-five gallons of fuel oil. The Fire Commissioner of the City of New York, acting through the “ Bureau of Fire Prevention — Division of Combustibles,” inspected the oil burner and tank and on October 4, 1934, issued a permit to the owner to keep two hundred and seventy-five gallons of oil on bis premises. The Commissioner of Buildings of the borough of Brooklyn notified the owner of the existence of a violation for the reason that no tank test had been made as required by the Department of Buildings. The courts below have issued an order of mandamus commanding the Commissioner of Buildings to cancel the violation. The question of law is whether, since the enactment of chapter 764 of the Laws of 1933, jurisdiction relating to the storage of combustibles is vested in the Fire Commissioner or in the Commissioner of Buildings.

Prior to the enactment of chapter 899 of the Laws of 1911 three bureaus had existed in the Fire Department by virtue of section 727 of the Greater New York Charter (Laws of 1901, ch. 466) — a bureau charged with the duty of preventing and extinguishing fires, another bureau charged with the execution of all laws relating to the storage, sale and use of combustible materials, and a third bureau charged with investigation of the origin and cause of of fires. During the year 1908 the Commissioner of Accounts, by direction of the Mayor, made an investigation of the methods of the Fire Department. In the course of that investigation an engineer representing the Merchants Association reported that in his opinion the Bureau of Combustibles should become a subdivision of the Bureau of Fire Prevention. In the year 1911 section 727 of the Greater New York Charter was amended by chapter 899 of the laws of that year. By this section, as so amended, the Fire Commissioner was authorized to organize the department into such bureaus as may be convenient and necessary, but only two bureaus were mandatorily established — the fire bureau ” for the extinguishment of fires and “ a bureau of fire prevention, which under the direction of the commissioner shall perform the duties and exercise the powers in relation to the prevention of fires devolved upon the commissioner by this act or by any other law or ordinance.” The effect of this amendment is the abolition of the former Bureau of Combustibles. Assuming that the Fire Commissioner was vested with power to re-create a Bureau of Combustibles, the record in this proceeding displays strong proof that, when chapter 764 of the Laws of 1933 became effective, no such bureau had been established. The permit issued by the Fire Commissioner in this proceeding is entitled “ Bureau of Fire Prevention — Division of Combustibles, Combustible Permit,” and the Fire Commissioner’s affidavit informs us that, when the Fire Prevention Bureau was created, the Bureau of Combustibles became a department of the Fire Prevention Bureau. His affidavit also states that, prior to the issue of this permit, the inspection was made by the Division of Combustibles. We think, therefore, that not only by force of chapter 899 of the Laws of 1911 the former Bureau of Combustibles was abolished, but also, by the facts appearing in this record, that the Fire Commissioner had not availed himself of any authority to re-create a Bureau of Combustibles. The old Bureau of Combustibles became part of the Bureau of Fire Prevention and all power formerly residing therein had vested in the Bureau of Fire Prevention when chapter 764 of the Laws of 1933 became effective.

This new statute (§ 1) provides by section 408: Bureau of fire prevention; transfer of employees. The bureau of fire prevention of the fire department of the city of New York established by section seven hundred and twenty-seven of the Greater New York Charter is hereby transferred' to the department of buildings. All the powers and duties now conferred by law upon the fire commissioner of the city of New York and enforced through such bureau are transferred to and shall be exercised by the commissioner of buildings in the borough for which he has been appointed.” The same section transfers from the Bureau of Fire Prevention to the Department of Buildings all officers and employees, all appropriations and all records, thus leaving the Bureau of Fire Prevention powerless to function. Section 416-a of this statute also provides that all laws which are inconsistent with any of its provisions shall be deemed not to apply. Respondent argues that the provisions of section 774, subdivisions 2 and 5, and section 775, subdivision 5, of the Greater New Charter are not repugnant to chapter 764 of the Laws of 1933 and that the Legislature, by omitting to make some new provision in chapter 764 of the Laws of 1933 contrary to them, purposely left them in effect. Section 774, subdivision 2, as amended by chapter 503, Laws of 1916, empowered the Fire Commissioner to enforce all laws and ordinances and the rules and regulations of the Board of Standards and Appeals in respect of the storage, sale, transportation or use of combustibles, chemicals and explosives ” and subdivision 5 of the same section confers a like power in respect of “ the investigation of the cause, circumstances and origin of fires and the suppression of arson.” Section 775, subdivision 5, empowers the Fire Commissioner to cause any vessel moored to or anchored near any dock or pier in the city to be removed to and secured at such place in the harbor as shall be designated by the commissioner, provided such vessel shall be on fire or in danger of catching fire or is, by reason of its condition, or the nature of its cargo, a menace to shipping or -to property or the water front of the city.” Part of the power conferred upon the Fire Commissioner by section 775, subdivision 5, could, in the event that a vessel should be on fire or be in danger of catching fire from a conflagration raging in the vicinity, be enforced through the Fire Bureau which survived the abolition of the Bureau of Combustibles by chapter 899 of the Laws of 1911, and the residue of the power conferred by section 775, subdivision 5, as well as all the authority vested in the Fire Commissioner by section 774, subdivision 2, could be enforced by him only through the Bureau of Fire Prevention. Some weight may, however, be attached to respondents’ argument when they point out the specific enumeration in chapter 764 of the Laws of 1933 of many of the powers formerly vested in the Fire Commissioner and transferred by that act to the Commissioner of Buildings and the omission from the new statute of the particular powers which had been conferred upon the Fire Commissioner by section 774, subdivisions 2 and 5, and by section 775, subdivision 5, of the Greater New York Charter, but the Fire Commissioner’s jurisdiction over the storage, sale, transportation or use of combustibles, chemicals and explosives ” residing in him by virtue of section 774, subdivision 2, of the Greater New York Charter could be enforced only through the Bureau of Fire Prevention subsequent to the abolition of the Bureau of Combustibles by chapter 899 of the Laws of 1911. The omission specifically to enumerate in chapter 764 of the Laws of 1933 this and other particular powers is, as we think, outweighed by the sweeping, all-inclusive provision in section 408 of the new statute by which the Bureau of Fire Prevention and all its powers were transferred to the Department of Buildings. Conceivably the act was not drawn so as to reflect the exact legislative intent. A strong argument could be addressed to the Legislature tending to prove a better administrative policy in retaining within the jurisdiction of the Fire Department the enforcement of laws relating to the storage, sale, transportation or use of combustibles, chemicals and explosives.” That body is now in session, and until it explicitly enacts that the Fire Commissioner shall retain this power as an exception to the powers transferred to the Commissioner of Buildings, we feel that this court would encroach upon the legislative function if we should ignore the comprehensive language by which the Legislature directed the transfer of the Bureau of Fire Prevention with all its powers to the Department of Buildings.

The order of the Appellate Division and that of the Special Term should be reversed and the motion for mandamus denied, with costs to appellant in all courts.

Lehman, J.

(dissenting). The petitioner installed an oil burning furnace and in connection therewith a tank capable of holding two hundred and seventy-five gallons of oil. The Fire Commissioner of the city of New York issued a permit for the storage of oil in the tank. The Commissioner of Buildings of the borough of Brooklyn filed a notice of violation and served upon the owner of the building a notice to remove the oil burner and tank because they were installed without application to the Department of Buildings and without inspection or tank test as required by that department. A mandamus order has been issued for the cancellation of the violation.

Prior to 1933 the charter of the city of New York conferred upon the Superintendent of Buildings exclusive jurisdiction and charge, subject to and in accordance with the general rules and regulations to be established by the board of standards and appeals, of the construction, alteration, structural changes in and removal of buildings and other structures erected or to be erected within such borough * * (§ 406, as amd.) The jurisdiction was broad and at times encroached upon the functions and jurisdiction of the Fire Commissioner. His functions and duties fell, generally, into two groups: First, those connected with the extinguishment of fires; second, those connected with the prevention of fires. Many of the functions and duties of the Fire Commissioner in the field of fire prevention concerned the physical structure of buildings. They included the installation and maintenance of fire alarm systems and fire extinguishment equipment; the means and adequacy of exit, in case of fire, and the use and occupancy of buildings. (Charter, § 774.) He was empowered to inspect any building or structure and to order the remedying of any condition found to exist therein in violation of any law or ordinance or rule or regulation of the board of standards and appeals in respect to fires or to the prevention of fires or in respect to any of the matters mentioned in section seven hundred and seventy-four; ” to order the installation of fire alarm systems and fire extinguishment equipment and the maintenance or repair thereof or the construction of adequate and safe exits. He might even order any building or structure which, in his opinion, was inadequately protected against fire perils to be vacated or to be condemned and removed. (§ 775.) Since in other matters the Building Department was also charged with the duty of inspection of buildings and their construction and alteration,]there was here dual control of the administration of law and ordinances relating to the physical structure and maintenance of buildings with all the administrative objections and difficulties inherent in dual or divided control. (Cf. People v. Kaye, 212 N. Y. 407; People v. 131 Boerum St. Co., 233 N. Y. 268; United States Trust Co. v. Blake, 234 N. Y. 273.)

The Legislature, by chapter 764 of the Laws of 1933, undertook to remedy these evils by a complete revision of the provisions of the charter in respect to the Department of Buildings. Now the Commissioner of Buildings in each borough is vested with exclusive jurisdiction ” to examine and approve or disapprove all plans for buildings, structures and alterations within the borough, and with exclusive power to enforce all laws and ordinances, rules and regulations of the Board of Standards and Appeals in respect of enumerated matters where previously that power had been vested in or shared by the Fire Commissioner. The enumeration is careful. In the same language used previously in the charter in conferring powers upon the Fire Commissioner, the new law conferred exclusive power upon the Commissioner of Buildings. Here there was no room for judicial construction. The Fire Commissioner was divested of all powers in respect to prevention of fires and danger to and loss of life and property in connection with the physical structure and alteration of buildings and their use and occupancy. (§ 407.)

It is to be noted, however, that elsewhere the powers of the Fire Commissioner were not touched by those sections. The enumeration of powers transferred to the Commissioner of Buildings did not include “ the storage, sale, transportation or use of combustibles, chemicals and explosives,” or the investigation of the cause, circumstances and origin of fires and the suppression of arson.” It is significant, too, that where the powers of the Fire Commissioner extended not only to buildings and structures but also to vessels,” the power conferred upon the Commissioner of Buildings did not extend to vessels. Quite evidently it was not the intention here to vest in the Commissioner of Buildings under the broad term of the “ prevention of fires and danger to and loss of life and property therefrom ” the powers of the Fire Commissioner omitted from the enumeration. We need not here resort to the maxim “ expressio unius est exclusio alterius.” In the absence of language not open to any other construction we may not impute to the Legislature an intention to vest in the Commissioner of Buildings a jurisdiction in matter so foreign to his other functions as the storage, sale, transportation or use of combustibles, chemicals and explosives ” or the investigation of the cause, circumstances and origin of fires and the suppression of arson ” or the control of vessels which may be “a menace to shipping or to property or the water front of the city.”

In this proceeding, it is true that the Commissioner of Buildings does not assert jurisdiction over the origin of fires and the suppression of arson or even over “ vessels ” or the “sale” and “ transportation ” of chemicals; but apparently the court is now holding that only the Commissioner of Buildings has such jurisdiction. He asserts jurisdiction now only over the installation in buildings of tanks, which have not been tested by the Department of Buildings. In so far as the installation of tanks in a building may involve structural alterations in the building, the assertion of jurisdiction by the Commissioner of Buildings is not subject to challenge. There the powers of the Building Department are plenary, and are not restricted by any subsequent enumeration of powers. The Commissioner of Buildings, however, goes further and asserts complete and exclusive jurisdiction over the testing of any receptacle to be used in a building even though such use involves no change or alteration in the building, and upon the argument of the appeal, counsel stated that the only question intended to be presented to the court is whether the jurisdiction of the Fire Commissioner in the field of the “ storage, sale, transportation or use of combustibles, chemicals and explosives ” has been transferred to the Building Department by implication, though omitted from the enumeration of powers transferred to that department.

The implication arises, it is said, from the fact that this power was, prior to 1933, exercised by the Fire Commissioner through the Bureau of Fire Prevention, and that chapter 764 of the Laws of 1933 provides in part: “ Bureau of fire prevention; transfer of employees. The bureau of fire prevention of the fire department of the city of New York established by section seven hundred and twenty-seven of the Greater New York charter is hereby transferred to the department of buildings. All the powers and duties now conferred by law upon the fire commissioner * * * and enforced through such bureau are transferred to and shall be exercised by the commissioner of buildings in the borough for which he has been appointed.” (§ 408.)

The statute must be read as a whole. On its face a section entitled Bureau of fire prevention; transfer of employees ” is intended as an administrative measure. It should not be construed as an additional grant of powers which have been omitted, by evident intent and not by inadvertence, from the careful enumeration of powers in the preceding grant. In his opinion Judge O’Brien traces the history of the Bureau of Fire Prevention and its Department or Division of Combustibles. Always it appears that that department was a recognized entity within the Bureau of Fire Prevention. Perhaps the duties of the Fire Marshal also were performed by a similar department within the Bureau, though that is not made clear. (Cf. Greater New York Charter, § 779.) The powers and jurisdiction of public officers should be clearly defined. They should not be left to doubtful implication based upon administrative details not disclosed by the statute. A person reading the statute alone would find in its language no indication of any intent to divest the Fire Commissioner of powers not expressly granted to the Commissioner of Buildings. We may not impute to the Legislature any intention to render nugatory its previous enumeration of powers granted by resort to a section which is intelligible only to those persons who are acquainted with the details of the administration of the Fire Department, nor to leave in the air the jurisdiction over those matters omitted from the careful enumeration of the powers transferred from the Fire Commissioner to the Commissioner of Buildings.

The evident purpose of section 408 is to transfer to the Department of Buildings the employees of the Fire Prevention Bureau, since the statute had specifically transferred to the Department of Buildings almost all the duties performed by those employees. The transfer of the powers “ enforced through such bureau ” must reasonably be confined to those powers connected with the jurisdiction of the Department of Buildings conferred by the earlier sections. It should not be construed as an enlargement of that jurisdiction.

Under this limited application of section 408, it appears that the Commissioner of Buildings is vested with exclusive jurisdiction over all buildings and alterations, with all the powers enumerated in section 407, and by transfer of the employees of the Bureau of Fire Prevention of the Fire Department is furnished with the means of carrying out its powers. The Fire Department is left with the jurisdiction which the Legislature carefully omitted from the enumeration of functions and powers conferred upon the Building Department, including the test of storage tanks for combustibles.

Order should be affirmed.

Crane, Ch. J., Hubbs, Crouch and Finch, JJ., concur with O’Brien, J.; Lehman, J., dissents in opinion, in which Loughran, J., concurs.

Orders reversed, etc.


text:
    In the Matter of The North American Cement Corporation, Appellant, against Mark Graves et al., Constituting the State Tax Commission of the State of New York, Respondents.
    (Argued October 7, 1935;
    decided November 19, 1935.)

      Charles J. Tobin and Leland L. Tolman for appellant.

      John J. Bennett, Jr., Attorney-General ('Wendell P. Brown of counsel), for respondents.
   Order affirmed, with costs; no opinion.

Concur: Crane, Ch. J., O’Brien, Hubbs, Crouch, Loughran and Finch, JJ. Not sitting: Lehman, J.


text:
    Siegfried Deutsch, Respondent, v. Flores B. Roy et al., Appellants, Impleaded with Others.
    (Submitted October 9, 1935;
    decided November 19, 1935.)

      Louis Susman for appellants.

      Henry C. Burnstine for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Hubbs, Crouch and Loughran, JJ. Not sitting: Finch, J.


text:
    The People of the State of New York, Respondent, v. Ray Orley, Amerigo Angelini, Thomas Rooney and Newman Raymond, Appellants.
    (Argued October 10, 1935;
    decided November 19, 1935.)

      Francis J. Mahoney for Ray Orley, appellant.

      Samuel Stern for Amerigo Angelini, appellant.

      George F. Mara and Thomas F. Kane for Thomas Rooney, appellant.

      Robert E. Manley and Moses A. Sachs for Newman Raymond, appellant.

      William Copeland Dodge, District Attorney (Felix C. Benvenga and Philip A. Donahue of counsel), for respondent.
   As to each defendant, judgment of conviction affirmed. No opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Hubbs, Crouch, Loughran and Finch, JJ.


text:
    Leon J. Arnold, Appellant, v. Alexander H. Burgess, as President of Allied Building Metal Industries, Respondent.
    (Argued October 11, 1935;
    decided November 19, 1935.)

      Herman A. Gray and Samuel B. Wachtell for appellant.

      Karl Propper and Samuel L. Paul for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Crouch and Loughran, JJ. Not sitting: Hubbs and Finch, JJ.


text:
    Bernard B. Barrett, Appellant, v. Adam Lang, as Executor of Anna Lang, Deceased, et al., Respondents.
    (Argued October 14, 1935;
    decided November 19, 1935.)

      Solomon Hirschhorn for appellant.

      Frank Pascarella for Adam Lang, individually and as executor, respondent.

      Robert J. Sykes and John J. Clarke for Henry V. Stebbins, respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Hubbs and Loughran, JJ. Not sitting: Crouch and Finch, JJ.


text:
    Edna M. E. B. Baylor, Appellant, v. London Guarantee & Accident Company, Limited, of London, England, Respondent.
    (Argued October 14, 1935;
    decided November 19, 1935.)

      James H. McIntosh and Robert E. McCormick for appellant.

      Everett W. Bovard and William E. Lowther for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Htjbbs, Loughran and Finch, JJ. Not sitting: Crouch, J.


text:
    The People of the State of New York, Respondent, v. Harry Greben, Appellant.
    (Argued October 14, 1935;
    decided November 19, 1935.)

      Melvin Greene for appellant.

      Walter C. Newcomb, District Attorney (David F. Doyh of counsel), for respondent.
   Judgment affirmed; no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Hubbs, Loughran and Finch, JJ. Not sitting: Crouch, J.


text:
    The People of the State of New York, Respondent, v. Morris Berg, Appellant.
    (Argued October 14, 1935;
    decided November 19, 1935.)

      Sidney Marks, Harold Dublirer and Leon Berg for appellant.

      Charles P. Sullivan, District Attorney (Mordecai Konowitz of counsel), for respondent.
   Judgment affirmed; no opinion.

Concur: Crane, Ch. J., O’Brien, Hubbs and Lough-ran, JJ. Lehman and Finch, JJ,, dissent and vote for reversal and dismissal of charge. Not sitting: Crouch, J.


text:
    The People of the State of New York, Respondent, v. Thomas Loria and Mary Loria, Appellants.
    (Argued October 14, 1935;
    decided November 19, 1935.)

      Roy H. Ernest for appellants.

      Raymond A. Knov)les, District Attorney (Harry L. Gilrie of counsel), for respondent.
   Judgment affirmed; no opinion.

Concur: O’Brien, Hubbs, Loughban and Finch, JJ. Crane, Ch« J., and Lehman, J., dissent and vote for reversal. Not sitting: Crouch, J.


text:
    The People of the State of New York, Respondent, v. James Burrows, Appellant, Impleaded with Others.
    (Argued October 14, 1935;
    decided November 19, 1936.)

      Louis B. Stillman and David B. Stillman for appellant.

      William Copeland Dodge, District Attorney (Vincent A. Caioggio, Jr,, of counsel), for respondent.
   Judgment affirmed; no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Hubbs, Loughran and Finch, JJ. Not sitting: Crouch, J.


text:
    The People of the State of New York, Respondent, v. Frank Gaglio, Appellant, Impleaded with Others.
    (Argued October 14, 1935;
    decided November 19, 1935.)

      Andrew Byrne and Jacob Goldsmith for appellant.

      William Copeland Dodge, District Attorney (Vincent A. Catoggio, Jr., of counsel), for respondent.
   Judgment affirmed; no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Htjbbs, Loughran and Finch, JJ. Not sitting: Crouch, J.


text:
    Helen Eisser, Respondent, v. The John Hancock Mutual Life Insurance Company of Boston, Massachusetts, Appellant.
    (Argued October 15, 1935;
    decided November 19, 1935.)

      William B. Moore for appellant.

      Leo Fixler and Abraham Engelman for respondent.
   Order affirmed and judgment absolute ordered against the appellant on the stipulation, with costs in all courts. No opinion. (See 269 N. Y. 677.)

Concur: Lehman, Htjbbs, Loughran and Finch, JJ. Dissenting: Crane, Ch. J., and O’Brien, J. Not sitting: Crouch, J.


text:
    Abe Shapiro, Respondent, v. James J. Brennan, as President of the Theatrical Protective Union, Local No. 1, of International Alliance of Theatrical Stage Employees and Motion Picture Machine Operators, Appellant.
    (Argued October 15, 1935;
    decided November 19, 1935.)

      Joseph Lotterman and Abner J. Bubien for appellant.

      Henry H. Silverman, Theodore Ornstein and Abner H. Silverman for respondent.
   Judgment of the Appellate Division modified by striking out that portion thereof which decrees that the defendant union forthwith restore the plaintiff to the position at the City Theatre which he held on September 24, 1933, and as so modified affirmed, without costs. No opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Herbs, Loeghran and Finch, JJ. Not sitting: Croech, J.


text:
    Ellwood Clark, Respondent, v. Alexander F. Mitchell et al., Defendants, and Herbert L. Jamison et al., Appellants.
    (Argued October 15, 1935;
    decided November 19, 1935.)

      Edward Holloway for appellants.

      Benjamin L. Fairchild for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Hubbs, Loughran and Finch, JJ. Not sitting: Crouch, J.


text:
    Jay D. Newell, as Administrator of the Estate of Bernard Newell, Deceased, Respondent, v. Brooklyn, Queens County and Suburban Railroad Company, Appellant.
    (Argued October 15, 1935;
    decided November 19, 1935.)

      Harold L. Warner and George D. Yeomans for appellant.

      Myron Wisoff, William S. Butler and M. N. Schleider for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Hubbs, Loughran and Finch, JJ. Not sitting: Crouch, J.


text:
    Josephine Donovan, Respondent, v. Brooklyn Bus Corporation, Appellant, Impleaded with Another.
    (Submitted October 16, 1935;
    decided November 19, 1935.)

      Harold L. Warner and George D. Yeomans for appellant.

      James B. M. McNally, Michael F. Dee and John V. ■ Downey for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Hubbs, Loughran and Finch, JJ. Not sitting: Crouch, J.


text:
    Stanley B. Severance, Appellant, v. Burton C. Severance et al., Respondents.
    (Argued October 16, 1985;
    decided November 19, 1935.)

      Donald C. Hawkes, Frederick Collin and Frederick E. Hawkes for appellant.

      James E. Personius and Levi Ginsburg for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Lehman, O’Brien, Hubbs and Finch, JJ_ Dissenting: Crane, Ch. J., and Loughran, J. Not sitting: Crouch, J.


text:
    Union County Trust Company, Appellant, v. Alfred S. Brown, Respondent.
    (Argued October 16, 1935;
    decided November 19, 1935.)

      A. S. Cutter, Daniel J. McMahon and Norman Roth for appellant.

      Alfred S. Brown, in person, and Franklin W. Morrell for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Hubbs, Loughran and Finch, JJ. Not sitting: Crouch, J.


text:
    Minnie R. Zabriskie et al., Appellants, v. The City of New York, Respondent.
    (Argued October 16, 1935;
    decided November 19, 1935.)

      Charles L. Woody and Joshua D. Jones for appellants.

      Paul Windels, Corporation Counsel {Seymour B. Quel and Alfred D. Jahr of counsel), for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Htjbbs, Loughran and Finch, JJ. Not sitting: Crouch, J.


text:
    Creditors Composition Corporation, Appellant, v. American Maracaibo Company, Respondent, Impleaded with Another.
    (Argued October 17, 1935;
    decided November 19, 1935.)

      Frank C. Laughlin, Stewart W. Bowers, Benjamin P. DeWitt and Sidney Pepper for appellant.

      Frederick R. Ryan and Samuel A. Adamson for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Htjbbs, Loughran and Finch, JJ. Not sitting: Crouch, J.


text:
    Frank E. Lonas, Appellant, v. Layman Pressed Rod Company, Inc., Defendant, and Inglis M. Uppercu et al., Respondents.
    (Argued October 17, 1935;
    decided November 19, 1935.)

      Wilson E, Tipple, Albert Firman and Adolph Hansen for appellant.

      W. Morton Carden for Edwin B. Cadwell, respondent.

      Benjamin Cohen and Irene Rutherford O’Crowley for Griswold A. Thompson et al., respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Hubbs and Loughran, JJ. Not sitting: Crouch and Finch, JJ.


text:
    Lew L. Harr, Jr., as Executor of Lew L. Harr, Deceased, Respondent, v. Wells-Newton National Corporation, Appellant, and L. L. Harr Corporation of New York, Respondent.
    (Argued October 17, 1935;
    decided November 19, 1935.)

      Paul W. Williams, John P. Ohl and Samuel A. McCain for appellant.

      Thomas F. Compton for plaintiff-respondent and defendant-respondent.

      Albert M. Lee and J. George Levy for Henry C. Fleming et al., amici curice.

   Judgment affirmed, with costs; no opinion.

Concur: Lehman, O’Brien, Hubbs and Loughran, JJ. Dissenting: Crane, Ch. J., and Finch, J. Not sitting: Crouch, J.


text:
    Metta MacDowell, Respondent, v. Western Union Telegraph Company, Appellant.
    (Argued October 18, 1935;
    decided November 19, 1935.)

      Francis R. Stark for appellant.

      M. J. Conboy for respondent.
   Judgment affirmed, with costs: no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Hubbs, Loughran and Finch, JJ. Not sitting: Crouch, J.


text:
    Jambs A. McGraw, Respondent, v. George Selkis et al., Defendants, and John F. Doyle, Appellant.
    (Argued October 18, 1935;
    decided November 19, 1935.)

      John F. Doyle, in person, for appellant.

      Patrick J. Keniry for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Hubbs, Loughran and Finch, JJ. Not sitting: Crouch, J.


text:
    John Liston, Respondent, v. Wilbur Hicks, Appellant.
    (Argued October 18, 1935;
    decided November 19, 1935.)

      Laurence V. Benedict, George B. Smith and Earl S. Jones for appellant.

      Nelson R. Pirnie and Francis L. Ganley for respondent.
   Order affirmed and judgment absolute ordered against appellant on the stipulation, with costs in all courts. No opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Hubbs, Loughran and Finch, JJ. Not sitting: Crouch, J.


text:
    The People of the State of New York, Respondent. v. Anthony Tuzio, Appellant.
    (Argued October 21, 1935;
    decided November 19, 1935.)

      Edward J. Reilly for appellant.

      William F. X. Geoghan, District Attorney (Henry J. Walsh of counsel), for respondent.
   Judgment affirmed; no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Hubbs, Loughran and Finch, JJ. Not sitting: Crouch, J.


text:
    Albert S. Goldberg et al., as Receivers of the Equitable Merchants Association, Inc., Appellants, v. Clifford T. Weihman, Respondent, Impleaded with Others.
    (Argued October 21, 1935;
    decided November 19, 1935.)

      Alexander Slater, Albert J). Schanzer and Abram F. Sackheim for appellants.

      John J. Curtin for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Hubbs, Loughran and Finch, JJ. Not sitting: Crouch, J.


text:
    Cauldwell-Wingate Company, Appellant, v. The City of New York, Respondent.
    (Argued October 21, 1935;
    decided November 19, 1935.)

      Robert H. Elder, Otho S. Bowling, Copal Mints and Harry Smith for appellant.

      Paul Windels, Corporation Counsel (Paxton Blair and Ralph W. Thomas of counsel), for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Hubbs and Loughran, JJ. Not sitting: Crouch and Finch, JJ.


text:
    Charles V. Barker et al., as Trustees, et al., Respondents, v. A. I. Namm & Son et al., Defendants, and The City of New York, Appellant.
    (Argued October 22, 1935;
    decided November 19, 1935.)

      Paul Windels, Corporation Counsel (Paxton Blair, Edviund L. Palmieri and Nathan Blum of counsel), for appellant.

      Benjamin Reass, Emanuel Newman and Irving Moldauer for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Hubbs, Loughran and Finch, JJ. Not sitting: Crouch, J.


text:
    The Chase National Bank, as Trustee, et al., Respondents, v. Brenda D. D. Frazier et al., Respondents, and Marjorie A. F. Henderson, Appellant.
    (Submitted October 22, 1935;
    decided November 19, 1935.)

      Horace G. Hitchcock for appellant.

      Gerald Donovan and Raymond D. Thurber for Brenda F. Watriss, as general guardian of Brenda D. D. Frazier, respondent.

      Edmund L. Durkin, as guardian ad litem for Brenda D. D. Frazier, respondent.

      George B. Brooks and Stephen P. Nash for Harry A. Usher et al., as executors and trustees 'under the will of Frank D. Frasier, deceased, respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Crane, Ch, J., Lehman, O’Brien, Crotjch and Finch, JJ. Not sitting: Hubbs and Loughran, JJ.


text:
    Robert G. Gibbs, as Administrator of the Estate of Robert Gibbs, Jr., Deceased, Appellant, v. Lehigh Valley Railroad Company, Respondent.
    (Argued October 22, 1935;
    decided November 19, 1935.)

      Glenn A. Stockwell for appellant.

      Thomas R. Wheeler for respondent.
   Judgments reversed and new trial granted, with costs to abide the event. The evidence presented a question of fact as to whether the deceased was guilty of contributory negligence. This was for the jury to determine. No opinion.

Concur: Crane,' Ch. J., Lehman, O’Brien, Hubbs, Loughran and Finch, JJ. Not sitting: Crouch, J.


text:
    Filimino Pirro, Respondent, v. Annie Pirro, Appellant.
    (Argued October 23, 1935;
    decided November 19, 1935.)

      Juvenal Marchisio and Herman Beilin for appellant.

      Benjamin Marsicano and James M. Golding for respondent.
   Judgment affirmed, without costs; no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Hubbs, Loughran and Finch, JJ. Not sitting: Crouch, J.


text:
    In the Matter of the Accounting of Mary H. Potter et al., as Executors of Edward W. Potter, Deceased, Appellants and Respondents. Russell H. Potter et al., Respondents and Appellants.
    (Argued October 22, 1935;
    decided November 20, 1935.)

      Joseph Swart, B. Frank Bake and Edward J. Jellinek for Mary H. Potter et ah, as executors of Edward W. Potter, deceased, appellants and respondents.

      Helen Z. M. Rodgers and Welles V. Moot for Russell H. Potter, Jr., et al., respondents and appellants.

      Joseph H. Morey and Arthur C. Mindhan for Charlotte P. Whitcher, individually and as one of the executors of Harriet E. Potter, deceased, respondent and appellant.
   Order affirmed, with costs payable out of the estate to each party appearing by separate attorney and filing a brief, and question certified answered in the affirmative. No opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Hubbs, Loughran and Finch, JJ. Not sitting: Crouch, J.


text:
    Brooklyn-Manhattan Transit Corporation, Appellant, v. The City of New York, Respondent.
    (Argued October 23, 1935;
    decided November 20, 1935.)

      D. A. Marsh, A. A. Kraus and George D. Yeomans for appellant.

      Paul Windels, Corporation Counsel (,Joseph L. Weiner and Arthur A. Segall of counsel), for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Hubbs, Loughran and Finch, JJ. Not sitting: Crouch, J.


text:
    In the Matter of the Will of John L. Curley, Deceased. James A. Martin, Executor of John L. Curley, Deceased, et al., Appellants; Grace S. Curley et al., Respondents.
    (Argued October 23, 1935;
    decided November 20, 1935.)

      Patrick J. Dobson and Maurice A. Krisel for James A. Martin, as executor of John L. Curley, deceased, appellant.

      Walter Jeffreys Carlin, as special guardian of Margaret Curley, an incompetent, appellant.

      Mortimer M. Cassidy and Laurence L. Cassidy for St. Matthew’s Roman Catholic Church, respondent.

      Edward L. Kelly, Gardnier Conroy and Reginald S. Hardy for St. Mary’s Roman Catholic Church, respondent, Jacob L. Holtzmann, Almeth W. Hoff and Vincent T. Follmar for Grace S. Curley, respondent.
   Order affirmed, with costs to the widow respondent, payable out of the estate; no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Hubbs, Loughran and Finch, JJ. Not sitting: Crouch, J.


text:
    George A. Titterington, as Executor of Morris M. Titterington, Deceased, Appellant, v. Charles H. Colvin et al., Respondents.
    (Argued October 24, 1935;
    decided November 20, 1935.)

      7. 72. Oeland, John B. Reardon and Leon 72. Jillson for appellant.

      Edward S. Oreenbaum, Morris L. Ernst and Alexander Lindey for Charles H. Colvin, respondent.

      Leonard P. Moore and David S. Hecht for Pioneer Instrument Company, Inc., respondent.
   Order affirmed and judgment absolute ordered against the appellant on the stipulation, with costs in all courts. No opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Hubbs, Loughran and Finch, JJ. Not sitting: Crouch, J.


text:
    Lackawanna Steel Construction Corporation, Respondent, v. The State of New York, Appellant.
    (Claim No. 23466.)
    (Argued October 24, 1935;
    decided November 20, 1935.)

      John J. Bennett, Jr., Attorney-General (Leon M. Lay den and Henry Epstein of counsel), for appellant.

      Ray M. Stanley and Benjamin McClung for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Hubbs, Loughran and Finch, JJ. Not sitting: Crouch, J.


text:
    Marion T. Martindale, as Administrator of the Estate of Josephine E. Martindale, Deceased, Respondent, v. The State of New York, Appellant.
    (Claim No. 23570.)
    (Argued October 25, 1935;
    decided November 20, 1935.)

      John J. Bennett, Jr., Attorney-General (Leon M. Layden and Henry Epstein of counsel), for appellant.

      Crandall Melvin, Lawson Barnes and Louis Young for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Hubbs, Loughran and Finch, JJ. Not sitting: Crouch, J.


text:
    Richard F. McCarthy, Respondent, v. The State of New York, Appellant.
    (Claim No. 23260.)
    (Argued October 25, 1935;
    decided November 20, 1935.)

      John J. Bennett, Jr., Attorney-General (Joseph I. Butler, Henry Epstein and Leon M. Lay den of counsel), for appellant.

      P. Augustus Hopkins for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Hubbs, Loughran and Finch, JJ. Not sitting: Crouch, J.


text:
    Katherine Oley, as Administratrix De Bonis Non of the Estate of Jeremiah J. Clancy, Deceased, Respondent, v. The State of New York, Appellant.
    (Claim No. 20547.)
    (Argued October 25, 1935;
    decided November 20, 1935.)

      John J. Bennett, Jr., Attorney-General {John M. Dooley of counsel), for appellant.

      Walter J. Welch for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Crane, Ch. J., Lehman, O’Brien, Hubbs, Lotjghran and Finch, JJ. Not sitting: Crouch, J.


text:
    Frederick A. Mann, Appellant, v. George Schneeberger, Individually and as Superintendent of Highways of the Town of Irondequoit, Respondent.
    (Argued November 18, 1935;
    decided November 20, 1935.)

      George R. Lunn, Jr., for motion.

      Frederick A. Mann, in person, opposed.
   Motion granted and appeal dismissed, with costs and ten dollars costs of motion.


text:
    Charles A. O’Toole, Respondent, v. Crane & Clark, Inc., Appellant.
    (Argued November 18, 1935;
    decided November 20, 1935.)

      J ohn J. O’Leary for motion.

      Abraham L. Doris opposed.
   The record on appeal has been filed with the clerk, although a few days late. The three copies were served upon the respondent’s attorney but were returned. The motion to dismiss the appeal is granted, unless the appellant re-serves the respondent’s attorney with three copies of the record within the next ten days and pays ten dollars costs within the same time-. If these things be done the motion is denied, without costs.


text:
    In the Matter of the Probate of the Will of Isaac Meltzer, Deceased. Joseph Meltzer, Appellant; Ida Meltzer, Respondent.
    (Argued November 18, 1935;
    decided November 20, 1935.)

      John D. Lyons for motion.

      Michael Halperin opposed.
   Motion denied.


text:
    Isaac Tanenbaum, Respondent, v. Commercial Credit Corporation, Appellant.
    (Submitted October 18, 1935;
    decided November 26, 1935.)

      Duane B. Dills and Walter G. Schelker, Jr., for appellant.

      Irwin M. Levy for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: O’Brien, Hubbs, Loughran and Finch, JJ. Dissenting: Crane, Ch. J., and Lehman, J. Not sitting: Crouch, J.