text:
    In the Matter of George A. Wingate, as Surrogate of the County of Kings, Respondent, against Joseph D. McGoldrick, as Comptroller of the City of New York, et al., Appellants.
    Argued October 26, 1938;
    decided December 2, 1938.

      William C. Chanter, Corporation Counsel (,Jeremiah M. Evarts and Seymour B. Quel of counsel), for appellants.
    The courts below erred in holding that this case constituted an exception to the general rule that mandamus should only be granted in the exercise of a sound judicial discretion. (People ex rel. Wood v. Assessors, 137 N. Y. 201; Duncan Townsite Co. v. Lane, 245 U. S. 308; People ex rel. Durant Land Improvement Co. v. Jeroloman, 139 N. Y. 14; Matter of Black v. O’Brien, 264 N. Y. 272; Matter of Andresen v. Rice, 277 N. Y. 271; People ex rel. Dean v. Asten, 7 N. Y. Wkly. Dig. 411.) The case is not an exception to the general rule. (Matter of Andresen v. Rice, 277 N. Y. 271; Baird v. Board of Supervisors, 138 N. Y. 95.)

      Harold M. Kennedy for respondent.
    The only issue presented was correctly decided by the Special Term and the Appellate Division. A holding that the Surrogate’s power to fix salaries may be reviewed, and his salary schedules revised, would violate precedent and principle, and public policy as well. (People ex rel. O’Loughlin v. Prendergast, 174 App. Div. 897; 219 N. Y. 377; People ex rel. Cropsey v. Hylan, 199 App. Div. 218; 232 N. Y. 601; Matter of Bateman v. Mayor, 247 N. Y. 250; Matter of Eadie v. LaGuardia, 250 App. Div. 446; Matter of Flaherty v. Craig, 226 N. Y. 76.)
   Per Curiam.

The Legislature has provided that the Surrogates of the counties of Kings and Queens shall severally fix the compensation of the chief clerk and of the other clerks, stenographers and other officers and employees of the said court and office of such surrogate * * * notwithstanding any other provision of law * * * and the same shall be a county charge.” (Surrogate’s Court Act, §' 22.) It is the duty of the Board of Estimate (formerly Board of Estimate and Apportionment) to make the necessary appropriations to meet such county charges. The Legislature has left it no choice there. To justify its failure to perform that duty, the Board of Estimate urges that the salaries fixed by the Surrogates are excessive and that payment of such salaries would require the use of moneys of the city urgently needed for other purposes.

Increase in salaries fixed by the Surrogates with consequent mandatory appropriation by the Board of Estimate reduces in the same amount the resources of the city available for other services paid for by the city which, in the opinion of the Board of Estimate, may be essential for the public welfare or, at least, more urgent and of greater public importance. To that extent the Legislature has seen fit to take away from the Board of Estimate, as the budget-making authority of the city, the power to weigh the comparative value, urgency and importance of conflicting demands upon the resources of the city. By decree of the Legislature payment of these salaries is given priority.

The Legislature having conferred upon the Surrogates plenary independent power severally to fix the compensation of court officers and employees, neither the Board of Estimate nor the Supreme Court may substitute its discretion for the discretion vested by law in a Surrogate. The Legislature having provided that the compensation fixed by a Surrogate shall be a county charge, the Board of Estimate may not thwart the legislative purpose by refusing to make the necessary appropriations. Complaint that a statute is unwise or that, in practice, it works detriment to the public interest, may, always, be addressed to the Legislature. A court may not give ear to such complaint. Choice whether to grant or withhold judicial remedy cannot reasonably be based upon the court’s opinion as to the wisdom of the Legislature in enacting a statute or the wisdom of the exercise of a discretion conferred by the statute upon a public officer.

The order should be affirmed, with costs.

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

Order affirmed.


source: Caselaw Access Project

author: O’Bbien, J.

license: Public Domain

text:
    Jennie Angel, Appellant, v. Chase National Bank of the City of New York, Respondent.

      Argued October 25, 1938;
    decided December 6, 1938.

      Franklyn M. Stone for appellant.
    Defendant’s evidence did not establish conclusively that the policies were pledged to secure Angel’s liability under the guaranty as well as the personal loan. (Wyckoff v. Anthony, 90 N. Y. 442; Hanover Nat. Bank v. Suddath, 215 U. S. 110; Learned v. Tillotson, 97 N. Y. 1; Tide v. McLean, 200 N. Y. 260; Leach & Co. v. Pierson, 275 U. S. 120; Talcott v. Harris, 93 N. Y. 567; Alexopoulos Freres, Inc., v. Nemours Trading Corp., 205 App. Div. 39; Collier v. Miller, 137 N. Y. 332; Wills v. Investors Bankstocks Corp., 257 N. Y. 451; Byrne v. Barrett, 268 N. Y. 199; Morris v. Norton, 75 Fed. Rep. 912; Ga Nun v. Palmer, 216 N. Y. 603; Hirsch v. Jones, 191 N. Y. 195; Tousey v. Hastings, 194 N. Y. 79; First Nat. Bank v. Dana, 79 N. Y. 108.)

      George L. Trumbull and Randolph H. Guthrie for respondent.
    The insurance policies were pledged under Angel’s general loan and collateral agreement, dated May 4, 1934, and his note, dated July 30,1934, as security for his liability on his guaranty of the obligations of Cantor & Angel, Inc. Both agreement and the note, by their express terms, include the insurance policies in the security held by defendant for Angel’s liability on his guaranty. (First Nat. Bank v. Exchange Nat. Bank, 153 N. Y. Supp. 818; 179 App. Div. 22; 226 N. Y. 633; Chase Nat. Bank v. Hendrickson, 89 Fed. Rep. [2d] 997; 302 U. S. 689.)
   O’Bbien, J.

In March, 1923, Maurice Cantor and George Angel, deceased husband of plaintiff, executed an instrument, described as a continuing guaranty, by which each of them, jointly and severally, guaranteed to the Equitable Trust Company, predecessor of defendant Chase National Bank, full and prompt payment of all sums of money then owing or that might thereafter be owing by Cantor & Angel, Inc., to the trust company. ,

July 30, 1931, George Angel executed a note payable to defendant bank October 19, 1931, for $41,598.60. September 28, 1931, defendant bank acknowledged the receipt of two policies issued to George Angel by the New York Life Insurance Company aggregating $50,000, and one policy issued to him by the Equitable Life Assurance Society for $50,000, “ as additional collateral to your loan.” On October 16, 1931, the bank again referred to the assignments of the policies as “ recently pledged as additional collateral to your loan.” The assignments of these policies had been executed by George Angel and Jennie Angel, bis wife, this plaintiff, October 3, 1931, to the bank.

March 1, 1932, Cantor & Angel, Inc., executed a note for $150,000 payable on demand to the Chase National Bank and on February 8, 1933, the same corporation executed another demand note for $11,595 to the same payee. This second note is an elaborate document occupying seven printed pages of the record and recites the fact that Cantor & Angel, Inc., had deposited with the bank certain security for the payment of this note and of all other liabilities of the undersigned [Cantor & Angel, Inc.].” The terms Liabilities ” and Security ” are defined in that instrument. May 4, 1934, George Angel, individually, executed a document described therein as General Loan and Collateral Agreement ” which recites: “ In order to obtain loans from and otherwise deal with the Chase National Bank of the City of New York (hereinafter called the Bank ’), whether acting in its own behalf and/or in behalf of others, it is hereby agreed by the undersigned that the Bank shall have the rights hereinafter set forth in addition to those created by the circumstances associated with the incurrence of any ‘ Liabilities ’ as hereinafter defined.” These are the respective definitions: The term ‘ Liabilities ’ as herein used shall include * * * any and all * * * obligations and liabilities of any kind of the undersigned * * * now or hereafter existing, or heretofore or hereafter acquired from another by the Bank * * * whether absolute or contingent, secured or unsecured, due or not due, direct or indirect * * * and whether heretofore or hereafter incurred or given by the undersigned as security or otherwise.” “ The term ' Security ’ as herein used shall include * * * all * * * choses in action, claims, demands * * * and any other property, rights and interests of the undersigned, or any evidence thereof, which have been or at any time shall be delivered to the Bank * * * for any purpose.”

July 30, 1934, George Angel, individually, made a note for $28,943.20 payable in three months to the Chase National Bank. This note contains a recitation that the maker, George Angel, had deposited with the bank as security for the payment of this note “ and of all other liabilities of the undersigned ” certain shares of named stocks and certain named bonds as well as the following: $25,000. New York Life Insurance Company policy; $25,000. New York Life Insurance Company policy; $50,000. Equitable Life Assurance Company policy.” The terms “ Liabilities ” and “ Security ” are defined in this note of July 30, 1934, in the same language as employed in the general loan and collateral agreement of May 4,1934. The liabilities to be secured by these stocks, bonds and insurance policies are all obligations and liabilities of any kind of the undersigned, present or future, absolute or contingent. The note provides that the security pledged is for the payment of the note and all such liabilities as therein defined.

George Angel died in December, 1934; the bank collected the sum of $101,782.88 on the policies and has refused to pay any part to plaintiff. The theory of the complaint is that defendant’s duty is to apply to the payment of the $28,943.20 note of July 30, 1934, the collateral other than the proceeds of the insurance policies and after such application to'“ pay to plaintiff the difference between said sum of $101,782.88 collected by defendant on said life insurance policies and the amount remaining due upon said note dated July 30, 1934, or, in the alternative, that defendant deliver to plaintiff all the stocks and bonds held by defendant to secure said note of July 30, 1934, and pay to plaintiff the difference between the amount remaining due on said note and said sum of $101,782.88.” Judgment is demanded for the sum of $101,782.88.

The assigned policies had been delivered to the bank in October, 1931, and the note of July 30, 1934, recites that there had been deposited with the bank, as security for the payment of the note and all other liabilities, not only the bonds and shares -of stock enumerated in the note but also specifically describes these three policies. The Appellate Division is quite correct in holding, as matter of law, that the policies were pledged not only to secure this particular note but also every obligation of George Angel, present or future, absolute or contingent. The language of the July 30, 1934, note and that of the general loan and collateral agreement is not susceptible of any other inference. The Appellate Division in its opinion provides that the judgment is without prejudice to plaintiff’s right to possess the other collateral in the event that the proceeds of the policies discharge George Angel’s obligations to the bank. In this respect also we agree. There is some surplus and in affirming this judgment we do so without prejudice to any action which plaintiff may take to secure her right to that surplus.

The judgment should be affirmed, with costs.

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

Judgment affirmed.


author: Rippey, J.

text:
    In the Matter of the Accounting of Guaranty Trust Company of New York, as Trustee under the Will of James B. Kennedy, Deceased. Drummond C. N. Dunbar et al., Appellants; Guaranty Trust Company of New York, as Trustee, et al., Respondents, Impleaded with Another.

      Argued October 3, 1938;
    decided December 6, 1938.

      Selden Bacon for Drummond C. N. Dunbar, appellant.
    The direction to the trustee to pay and divide upon the daughter’s death to and among her child or children and. issue of deceased children of hers fixes, at the date of her death, the membership of the class among whom she was authorized to direct distribution. She had no power to create future estates in favor of persons not actual members of the designated class at the moment of her own death. (Dunkel v. Homindustries, Inc., 275 N. Y. 327; Matter of Evans. 165 Misc. Rep. 752; Wallace v. Diehl, 202 N. Y. 156; Matter of Baer, 147 N. Y. 348; Schmidt v. Jewett, 127 App. Div. 376; 195 N. Y. 486; Matter of Westchester Trust Co., 173 App. Div. 403; 219 N. Y. 638; Matter of Crane, 164 N. Y. 71; Matter of Farmers L. & T. Co., 189 N. Y. 202; Lyons v. Ostrander, 167 N. Y. 135; Matter of Smith, 131 N. Y. 239; Delafield v. Shipman, 103 N. Y. 463; Fowler v. Ingersoll, 127 N. Y. 472; 2 Davids, New York Law of Wills, p. 1219.) The mere appointment of a life estate_in one-half of the fund to a trustee for each child, with no valid appointment over of the remainder, was not an effectual exercise of the limited special power conferred on his daughter by the decedent. (2 Sugden on Powers, pp. 69-71; Varrell v. Wendell, 20 N. H. 431; Matter of Remsen, 126 Misc. Rep. 25; 215 App. Div. 832; Tweddell v. N. Y. Life Ins. Co., 49 App. Div. 258; Hooper v. Hooper, 203 Mass. 50; Myers v. Safe Deposit Co., 73 Md. 412; Wickersham v. Savage, 58 Penn. St. 365; Matter of Pepper, 120 Penn. St. 235; Matter of Smith, 4 Weekly Notes of Cases [Pa.], 265; Matter of Lansing, 182 N. Y. 238; Matter of Haggerty, 128 App. Div. 479; 194 N. Y. 550; Matter of Hoffman, 161 App. Div. 836; Matter of Slosson, 216 N. Y. 79; Matter of Ripley, 122 App. Div. 419; 192 N. Y. 536; Matter of Duryea, 277 N. Y. 310; Helvering v. Grinnell, 294 U. S. 153.) The will of decedent contains words of positive restriction forbidding such partial appointment of life estates, leaving the remainder undisposed of. (Matter of Buechner, 226 N. Y. 440; Lewis v. Brennan, 141 La. 585; State v. Cherry Point Fish Co., 72 Wash. 420.) The partial appointment of the independent life estates is subversive of the provisions and general plan of the will. (Matter of Remsen, 126 Misc. Rep. 25; 215 App. Div. 832; Stuyvesant v. Neil, 67 How. Pr. 17; Tweddell v. N. Y. Life Ins. Co., 49 App. Div. 258; Varrell v. Wendell, 20 N. H. 431; Hooper v. Hooper, 203 Mass. 50; Myers v. Safe Deposit Co., 73 Md. 412; Wickersham v. Savage, 58 Penn. St. 365; Pepper’s Appeal, 120 Penn. St. 235.) The appointment of the life estates falls with the rest of the invalid appointment. (Tweddell v. N. Y. Life Ins, Co., 49 App. Div. 258; Stuyvesant v. Neil, 67 How. Pr. 17; Varrell v. Wendell, 20 N. H. 431.)

      Cornelius J. Smyth, special guardianJor Marjorie F. A. Dunbar, appellant.
    The appointment of the principal to unborn issue of living children was unauthorized and outside the class specified in the power. (Matter of Crane, 164 N. Y. 71; Delaney v. McCormack, 88 N. Y. 174; Robinson v. Martin, 200 N. Y. 159; Dickerson v. Sheehy, 209 N. Y. 592; Fulton Trust Co. v. Phillips, 218 N. Y. 573; Matter of Bostwick, 236 N. Y. 242; N. Y. Life Ins. & Trust Co. v. Winthrop, 237 N. Y. 93; Matter of Baer, 147 N. Y. 348; Wallace v. Diehl, 202 N. Y. 156.) The appointment of life estates to appellants was not an effectual exercise of the power of appointment. (Stuyvesant v. Neil, 67 How. Pr. 16; Matter of Guiltinan, 122 Misc. Rep. 604; Matter of Remsen, 126 Misc. Rep. 25; 215 App. Div. 832; Matter of Trowbridge, 124 Misc. Rep. 317.)

      John J. Barrett and Otis T. Bradley for Guaranty Trust Company of New York, as trustee, respondent.
    The daughter of decedent had the power to appoint the fee to her children and the power conferred on her to appoint a fee included the power to appoint a lesser estate, there being no positive restriction against this in the decedent’s will. (McLean v. McLean, 174 App. Div. 152; 223 N. Y. 695; Cheever v. Cheever, 172 App. Div. 353; Matter of

      Colt, 154 Misc. Rep. 843; Lehman v. Spicer, 108 Misc. Rep. 721; 188 App. Div. 931; Matter of French, 119 Misc. Rep. 445; Matter of Tenney, 104 App. Div. 290; Matter of Lyons, 271 N. Y. 204; Matter of Haggerty, 128 App. Div. 479; 194 N. Y. 550; Matter of Haight, 152 App. Div. 228.)

      George Frankenthdler, special guardian for unborn children of Drummond C. N. Dunbar and those of Marjorie F. A. Dunbar, respondent.
    The creation of life estates by the dapghter of decedent for the benefit of her children instead of estates in fee, was a legal and valid exercise of the power of appointment. (Cheever v. Cheever, 172 App. Div. 353; 4 Kent’s Comm., p. 345; McLean v. McLean, 174 App. Div. 152; Butler v. Huestis, 68 Ill. 594; Matter of French, 119 Misc. Rep. 445; Matter of Dodge, 129 Misc. Rep. 390; Hillen v. Iselin, 144 N. Y. 365; Matter of Hughes, [1921] 2 Ch. 208.)
   Rippey, J.

The death of James B. Kennedy occurred in England on February 24, 1931. He was a citizen of the United States and a domiciliary resident of the State of New York. On July 19, 1928, he made two wills, one of which related to his estate in England while the other was applicable to his estate in the United States. In his will disposing of his estate in this country he directed that the testamentary dispositions therein contained be construed and regulated by the laws of the State of New York.” At the time of his death, he left a son, George H. Kennedy, and a daughter, Lady Sophia Kathleen Dunbar, entitled to inherit his estate in the event he died intestate. His daughter, a resident of England, died on June 9, 1936, leaving her surviving a husband from whom she was separated, and two children of whom she had the sole custody and control, Drummond C. N. Dunbar, born in 1917, and Marjorie Frederica Ann Dunbar, born in 1919. She left no descendants of deceased children. In fact, the son and daughter mentioned were the only children she ever had. Both children were living, unmarried and without descendants, at the time of her death, and are still living.

We are concerned, on this appeal, withthe construction of a single provision of the Kennedy will applicable to property in this country, found in clause 2 of paragraph sixth. In that will he named the Guaranty Trust Company of New York as his executor and the sole trustee of the trust for his daughter. To his son he gave one-half of his residuary estate outright. The other half he gave, devised and bequeathed to his trustee in trust to invest and re-invest the same, to collect the rents, issues, and profits thereof, and to apply the net income therefrom to the use ” of his daughter for and during the term of her natural life, without power of anticipation. Upon her death, to pay and divide the principal of said share to and among such of her children and issue of deceased children as she shall by her Last Will and Testament appoint; and if my said daughter shall fail effectually to exercise such power of appointment the principal of said share shall be transferred to and divided among her child or children, if any, in equal shares per stirpes; if none, then to my said Son, George Holden Kennedy, or if he be not then living to his children, if any, in equal shares per stirpes, but if none, then to such person or persons as wpuld be entitled to take from me as my next-of-kin or heirs-at-law under the laws of the State of New York in case of intestacy.”

Lady Dunbar, by will, attempted to exercise the power of appointment by creating separate trusts for her children in trustees whom she named and by directing her trustees to divide the half of her father’s American estate of which she was given the life use into two equal parts, one to be known as her son’s part and the other to be known as her daughter’s part. The son’s part she directed her trustees to dispose of as follows: The said Trustees shall pay to my son the income of the son’s part during his life and after his death shall pay and divide the principal of my son’s part to and among the children of my son then living in such shares if more than one and with such provisions in regard to maintenance education and/or support during minority as my said son may by any deed or deeds revocable or irrevokable and executed in his lifetime or by his last Will and Testament or any Codicil thereto appoint and in default of and subject to such appointment or in so far as such appointment shall not extend the said Trustees shall pay and divide my son’s part to and among the child or children then living of my son and if more than one in equal shares absolutely. In the event that my son shall die without leaving a child or children him surviving then I direct that my son’s part shall be transferred and paid over outright to my daughter if she is then living and if she is not then living said part shall be paid and divided to and among the child or children of my daughter then living and if more than one in equal shares absolutely.” Then follows a parallel provision for the disposal of her daughter’s part.

The learned Surrogate held that Lady Dunbar had, by the terms of her will, validly and effectually exercised the power conferred upon her, relying first upon what is asserted to be the rule that The power conferred on the donee to appoint a fee included the power to appoint a lesser estate, there being no positive restriction in the donor’s will,” citing various cases to which we below refer, and that, under the decision of this court in Hillen v. Iselin (144 N. Y. 365), the gift of the remainder to the great-grandchildren of the donor was to those of a class to whom the donee was given the power to distribute the corpus of the trust. In this, the Appellate Division concurred.

The assertion that, in the absence of positive and express words of prohibition to the contrary by the donor, the power conferred upon a donee to appoint a fee includes the power to appoint a lesser estate is, at most, only a doctrine of equity limited to particular cases where the circumstances require its application. The doctrine is not embraced in any statute. It is not a rule of universal application. It has never been laid down as a rule of construction by our court. None of the cases cited by the Surrogate are in point. In Matter of Colt (154 Misc. Rep. 843), cited by the Surrogate, the donee, a daughter of the donor, was expressly given a broad power to dispose of the corpus of the trust to the donee’s children or to the lawful issue of her children in such “ shares, proportions and estates ” as she might “ direct, limit and appoint,” and it was held that she acted within the power when she gave life uses to her two children. That was the only point decided. The question of the validity of the final disposition of the corpus was not involved. Its attempted disposition by the grandchildren of the donor was not a fact in issue. In Matter of French (119 Misc. Rep. 445) the facts were entirely different from those in the instant case and the donee exercised the power of appointment to the specific class named by the donor. In Cheever v. Cheever (172 App. Div. 353) again it was not necessary to be invoked to sustain the decision as the power was general and unlimited. In McLean v. McLean (174 App. Div. 152; affd., 223 N. Y. 695) the property in question passed under the residuary clause of the donor’s will to the donee and she had a right to bequeath the property to whomsoever she wished without reference to the exercise of the power clause in her husband’s will. Reliance upon any such general statement of a rule, even if applicable in a proper case, is unwarranted without consideration of its effect upon the intent and purpose of the testator, the nature of the power whether general, limited or specific and the special circumstances of the case under consideration (Collister v. Fassitt, 163 N. Y. 281, 286), as also appears from cases, cited by appellant, where the power to give a fee is held not to embrace the giving of a lesser estate (See Sugden on Powers [3d Am. ed,], vol. 1, p. 535, vol. 2, pp. 69-71; 4 Kent’s Commentaries [12th ed.], p. 345; Varrell v. Wendell, 20 N. H. 431, 438; Matter of Remsen, 126 Misc. Rep. 25; affd., 215 App. Div. 832; Hooper v. Hooper, 203 Mass. 50; Myers v. Safe Deposit & Trust Co., 73 Md. 413; Wickersham v. Savage, 58 Penn. St. 365; Matter of Pepper, 120 Penn. St. 235, 255). We neither approve nor consider the validity of the alleged rule, for we find that in no aspect does it have any force under the facts in the case at bar. Here the power was limited and specific and was not effectually exercised by the donee.

We must look exclusively to the will of Mr. Kennedy to determine the terms, scope and limitations upon the power. It must be exercised strictly according to its terms (3 Bogert on the Law of Trusts & Trustees, p. 1692). The donee was unauthorized to go outside of or exceed the power given; she was required to exercise it, if she acted at all with reference to it, within its specific terms. In construing the power, we are required not only to consider its express terms but also, if necessary, the general plan, purpose and intent of the testator as found within the express provisions and within the will as a whole. The intention of the donor of the power is the great principle that governs in the construction of powers” (4 Kent’s Commentaries, p. 345). Within limitations with which we are not here concerned, a testator may make such disposition as he wishes of his property without interference by the courts or by those who may believe that some other disposition would be more desirable or practicable. The plan, purpose and intent of Mr. Kennedy was to dispose of his property absolutely and finally as to his son’s share to the son upon his own (the testator’s) death and as to his daughter’s share upon the daughter’s death to her children then living and to the descendants of any deceased children of the daughter then living, per stirpes. By express terms, he so provides; if there were any ambiguity in the words and expressions used, it would necessarily be resolved in favor of such a construction by a perusal of the will as a whole. Mr. Kennedy authorized and directed his trustee to pay and divide ” the principal of the trust for the daughter upon the death of Lady Dunbar to and among such of her children and issue of deceased children as she shall by her last Will and Testament appoint.” The class to whom his trustee was directed to pay and divide the corpus of the trust was definitely, completely and finally ascertained and fell in according to the express terms of his will upon the death of Lady Dunbar. There were then no descendants of any deceased child of hers. She left her surviving two children and two children only and to them alone had she any power to dispose of the corpus of the trust. The power was to apportion the property itself to her children and to the issue of deceased children and not a limited interest therein. She had no power to extend the ultimate vesting of the estate to some time in the future or, specifically, to the death of her children. She had a specific and limited power to allocate the corpus of the trust in such shares as she saw fit to a specific class described by the donor, the members of which were ascertained at her death (Delafield v. Shipman, 103 N. Y. 463; Wallace v. Diehl, 202 N. Y. 156). The donor fixed the class; she had no power to enlarge or extend it; she exceeded her power when she attempted to appoint the distribution of the corpus of the trust among the issue of her children (2 Davids on New York Law of Wills, p. 1219; Stuyvesant v. Neil, 67 How. Pr. 16).

Respondents rest heavily, as did the Surrogate, upon the decision in Hillen v. Iselin (144 N. Y. 365), where the facts are in some aspects similar to those in the case at bar. In other and controlling respects they are entirely dissimilar. In that case, the clause under construction in O’Donnell’s will gave the power of appointment to his daughter Emily, to her child or children and to “ his, her or their descendant or descendants, and in such proportions and for such estate and estates therein, either in fee or for a less estate, and with such limitations and conditions as my said daughter Emily may * * * limit and appoint to take the same,” and continued the trust, after the death of Emily, in the same trustees for the benefit of those whom Emily might appoint to take the same and, in the event Emily should fail to exercise the power, for the benefit of the same class to whom the appointment to Emily was limited if she should leave a child or children or descendants of a deceased child or children, but if she should die leaving none such, then to other blood relatives of the testator. The power was not limited and special as in the case at bar.

It follows that the specific direction of Mr. Kennedy to his trustee to pay and divide the corpus of the trust upon the death of Lady Dunbar required the immediate vesting thereof upon her death in her son and daughter in the share or shares which she might apportion. The trusts which she attempted to create for the respective lives of her children with contingent remainders were void. Neither was the attempted creation of life estates in her two living children in accordance with the'clear intent, purpose and express provisions of Mr. Kennedy’s will and they were ineffective. Lady Dunbar, therefore, failed to exercise effectually the power which was given to her by her father to allocate the corpus among her living children at her death and the corpus passes under the provision of Mr. Kennedy’s will, where he says: “ If my said daughter shall fail effectually to exercise such power of appointment the principal of said share shall be transferred to and divided among her child or children, if any, in equal shares per stirpes.” The power to be “ effectually ” exercised must have been in the manner directed by Mr. Kennedy “so as to produce or secure the end desired,” and to make effective his purpose and intent as shown by his will.

The order of the Appellate Division and the decree of the Surrogate’s Court in so far as it affects the construction of the will should be reversed and the matter remitted to the Surrogate’s Court to enter a decree in accordance with this opinion; in other respects the order appealed from should be affirmed, with costs in all courts to all parties appearing and filing separate briefs payable out of the corpus of the trust.

Crane, Ch. J., Lehman, O’Brien and Loughran, JJ., concur; Hubbs and Finch, JJ., dissent.

Ordered accordingly.


author: Crane, Ch. J.

text:
    Central Savings Bank in the City of New York et al., Appellants, v. City of New York et al., Respondents.

      Argued October 17, 1938;
    decided December 6, 1938.

      Jesse Knight, JohnB. Willenbrok, Kenneth N. La Vine, Robert C. Fulton, Jr,, Edwin A. Berkery and Joseph B.

      Praetz for Central Savings Bank in the City of New York et al., appellants.
    The charge imposed by chapter 353 of the Laws of 1937 is not a tax and the resulting lien is not a tax lien. (City of Rochester v. Bloss, 185 N. Y. 42; City of New York v. McLean, 170 N. Y. 374; Colby v. City of Medford, 85 Ore. 525; Matter of Van Antwerp, 56 N. Y. 261; French v. Barber Asphalt Paving Co., 181 U. S. 324; Davis v. McLean County, 52 N. D. 857; Yeatman v. King, 2 N. D. 421; Walker v. Jameson, 140 Ind. 591; United States v. Butler, 297 U. S. 1; Carter v. Carter Coal Co., 298 U. S. 238; United States v. LaFranca, 282 U. S. 568; Head Money Cases, 112 U. S. 580.) The lien is in effect based upon contract, express or implied, between the owner and the municipality. (Carson v. Brockton Sewerage Comm., 182 U. S. 398; Matter of Long Island R. R. Co. v. Hylan, 240 N. Y. 199.) The hen is merely an incident of the regulation of tenement houses. (Adamec v. Post, 273 N. Y. 250; Tenement House Dept. v. Moeschen, 179 N. Y. 325; 203 U. S. 583; Head Money Cases, 112 U. S. 580; Morgan’s S. S. Co. v. Louisiana, 118 U. S. 455; City of Buffalo v. Stevenson, 207 N. Y. 258.) The law in attemping to create hens on property with priority over existing mortgages impairs the obligations of contracts and is unconstitutional. (Worthen Co. v. Kavanaugh, 295 U. S. 56; Green v. Biddle, 8 Wheat. 1; Walker v. Whitehead, 16 Wall. 314; McCracken v. Hayward, 2 How. 608; Wolff v. New Orleans, 103 U. S. 358; Worthen Co. v. Thomas, 292 U. S. 426; Davis v. McLean County, 52 N. D. 857; Yeatman v. King, 2 N. D. 421; National Bank of Commerce v. Jones, 18 Okla. 555.) That the Multiple Dwelling Law (Cons. Laws, ch. 61-A) purports to be enacted in the exercise of the police power does not justify a permanent impairment of the obhgations of outstanding contracts. (Worthen Co. v. Kavanaugh, 295 U. S. 56; Worthen Co. v. Thomas, 292 U. S. 426; Judd v. Board of Education, 278 N. Y. 200; Beaver County Bldg. & Loan Assn. v. Winowich, 323 Penn. St. 483; Hoard v.
      Luther, 251 App. Div. 692; Weisel v. Hagdahl Realty Co., 241 App. Div. 314; First Trust Co. v. Smith, 277 N. W. Rep. 762; Royster Guano Co. v. Virginia, 253 U. S. 412.) The statute unlawfully takes property without due process of law. (Stuart v. Palmer, 74 N. Y. 183; Matter of Trustees of Union College, 129 N. Y. 308; Matter of City of New York [Grand Boulevard], 212 N. Y. 538; Remsen v. Wheeler, 105 N. Y. 573; Matter of DePeyster, 80 N. Y. 565; Londoner v. Denver, 210 U. S. 373; Southern Ry. Co. v. Virginia, 290 U. S. 190.)

      William I. Hart and Joseph R. Truesdale for Dry Dock Savings Institution et al., appellants.
    Subdivisions 1 and 6 of section 309 of the Multiple Dwelling Law contravene section 10 of article VIII of the Constitution of the State of New York. (Weismer v. Village of Douglas, 64 N. Y. 91; Fox v. Mohawk & H. R. Humane Society, 165 N. Y. 517; Pocantico Water Works Co. v. Bird, 130 N. Y. 249; Smith v. Smythe, 197 N. Y. 457; Syracuse S. R. R. Co. v. City of Syracuse, 113 Misc. Rep. 28; United States v. Cohen, 268 Fed. Rep. 420; Chicago, M. & St. P. R. R. Co. v. Wisconsin, 238 U. S. 491; Khoury v. County of Saratoga; 243 App. Div. 195; 267 N. Y. 384; Melker v. City of New York, 190 N. Y. 481; Eckhardt v. Buffalo, 19 App. Div. 1; 156 N. Y. 658; Health Dept. v. Dassori, 21 App. Div. 348; Lawton v. Steele, 119 N. Y. 226; Huff v. City of New York, 202 App. Div. 425; Brooklyn City R. R. Co. v. Whalen, 191 App. Div. 737; 229 N. Y. 570; Matter of New York City Housing Authority v. Muller, 270 N. Y. 333.) Subdivisions 1 and 6 of section 309 of the Multiple Dwelling Law violate the provisions of section 6 of article I and section 1 of article I of the Constitution of the State of New York, and section 1 of article XIV of the Constitution of the United States. (Matter of City of New York, 190 N. Y. 350; People ex rel. Phillips v. Raynes, 136 App. Div. 417; Stuart v. Palmer, 74 N. Y. 183; Gautier v. Ditmar, 204 N. Y. 20; People

      ex rel. Schick v. Marvin, 249 App. Div. 293; 275 N. Y. 587; Eckhardt v. Buffalo, 19 App. Div. 1; 156 N. Y. 658; Health Dept. v. Dassori, 21 App. Div. 348; Lawton v. Steele, 119 N. Y. 226; Babcock v. City of Buffalo, 56 N. Y. 268; Ely v. Supervisors, 36 N. Y. 297; Chenango Bridge Co. v. Paige, 83 N. Y. 178.)

      William C. Chanter, Corporation Counsel (William S. Gaud, Jr., of counsel), for respondents.
    The city had full power to direct the owners of the buildings to make the repairs themselves. (Adler v. Deegan, 251 N. Y. 467; Adamec v. Post, 273 N. Y. 250; Tenement House Dept. v. Moeschen, 179 N. Y. 325; 203 U. S. 583; Cockcroft v. Mitchell, 187 App. Div. 189; 230 N. Y. 630.) The grant of power to the city to take upon itself the execution of orders that are not complied with and to recoup the cost of doing so through a prior lien upon the property improved, is a proper exercise of the po.ice power. (Block v. Hirsh, 256 U. S. 135; Matter of New York Housing Authority v. Muller, 270 N. Y. 333; Lawton v. Steele, 119 N. Y. 226; 152 U. S. 133; Swanberg v. City of New York, 123 App. Div. 774; City Council v. Werner, 38 S. C. 448; Easby v. City of Philadelphia, 67 Penn. St. 337; People ex rel. Board of Commissioners v. Banks, 67 N. Y. 568; Board of Black River Regulating District v. Ogsbury, 203 App. Div. 43; 235 N. Y. 600.) The imposition of liens under the statute infringes no constitutional rights of the owners of old-law tenements, (Levy Leasing Co. v. Siegel, 258 U. S. 242; Block v. Hirsh, 256 U. S. 135; Marcus Brown Holding Co. v. Feldman, 256 U. S. 170; People ex rel. Durham Realty Corp. v. LaFetra, 230 N. Y. 429; Guttag v. Shatskin, 230 N. Y. 647; Mugler v. Kansas, 123 U. S. 623; Hadacheck v. Sebastian, 239 U. S. 394; Reinman v. City of Little Rock, 237 U. S. 171; People v. Wolfe, 272 N. Y. 608; Nickerson v. Boston, 131 Mass. 308; Lawton v. Steele, 152 U. S. 133; North American Storage Co. v. Chicago, 211 U. S. 306;
      People ex rel. Copcutt v. Board of Health, 140 N. Y. 1.) Giving the city’s hen priority over pre-existing mortgages does not impair the obligation of contracts in violation of section 10 of article I of the Federal Constitution. (Home Building Loan Assn. v. Blaisdell, 290 U. S. 398; Norman v. Baltimore & Ohio R. R. Co., 294 U. S. 240; Hudson County Water Co. v. McCarter, 209 U. S. 349; People ex rel. Durham Realty Corp. v. LaFetra, 230 N. Y. 429; Loring v. Commissioner of Public Works, 264 Mass. 460; Richmond Mortgage & Loan Corp. v. Wachovia Bank & Trust Co., 300 U. S. 124; Parker Bros. v. Fagan, 68 Fed. Rep. [2d] 616; 292 U. S. 638; Pennslyvania Canal Co. v. Brown, 235 Fed. Rep. 669.) The prior lien law is likewise a proper exercise of the taxing power. (Genet v. City of Brooklyn, 99 N. Y. 296; Matter of Zborowski, 68 N. Y. 88; Gordon v. Cornes, 47 N. Y. 608; People ex rel. Crowell v. Lawrence, 41 N. Y. 137; People ex rel. Griffin v. Mayor of Brooklyn, 4 N. Y. 419; Withnell v. Ruecking Construction Co., 249 U. S. 63; Fallbrook Irrigation District v. Bradley, 164 U. S. 112; Spencer v. Merchant, 100 N. Y. 585; 125 U. S. 345; People ex rel. Scott v. Pitt, 169 N. Y. 521; N. Y. C. & H. R. R. R. Co. v. City of Rochester, 129 App. Div. 805; 198 N. Y. 570; Crayton v. Larabee, 220 N. Y. 493.)
   Crane, Ch. J.

The constitutionahty of the Multiple Dwelling Law (Cons. Laws, ch. 61-A) (Laws of 1929, ch. 713, as amd.) has been raised on appeal to this court before. In Adler v. Deegan (251 N. Y. 467) the law was challenged because its manner of passage was in violation of the Home Rule Amendment to the Constitution (Art. XII, § 2). We held that the law did not relate solely to the property, affairs or government of cities, and was properly adopted by a majority vote of the Legislature; in other words, as stated in the opinion, “ Reason as well as authority justifies a conclusion that these health measures must be a matter of State concern ” (p. 477).

Later, in Adamec v. Post (273 N. Y. 250), we were called upon to determine the constitutionality of the law and its amendments as applicable to buildings erected before 1901, or existing old law tenement houses. We there held that if the owner desired to continue the building as a tenement house or multiple dwelling, he would be obliged to make those changes in the structure found necessary for the public health and welfare. If the owner refused to make the' alterations, the city was authorized to make them, the cost becoming a lien upon the property, subject to taxes, assessments and prior mortgages. We said: When a building used as a dwelling house is unfit for that use and a source of danger to the community the Legislature in order to promote the general welfare may require its alteration or require that its use for a purpose which injures the public be discontinued; and, subject to reasonable hmitation, the Legislature may determine what alterations should be required and what conditions may constitute a menace to the public welfare and call for remedy” (p. 260). The owner had the choice of avoiding this expenditure and the consequent lien by discontinuing the use of his building for a tenement house. He could close it up or turn it to some other means of income.

We are now called upon to determine whether this law be constitutional as applied to prior mortgagees who have no such choice but who must subordinate the lien of their mortgages at the will of the city and the owner, having no control or say in the matter whatever. This requires us to consider the provisions of the amendment made by chapter 353 of the Laws of 1937. Section 309, subdivision 1, now provides that if the Department of Housing and Buildings elects to exercise its power to compel the owner to repair and improve his building, pursuant to subdivision 6 of this section, it shall serve a copy of the order on any mortgagee or other incumbrancer of record. Subdivision 6 is the new section providing for the establishment and maintenance of a revolving fund to be known and designated by the term, Old-Law Tenement Assessment Fund,” which shall consist of all moneys collected by the city on account of assessments made, pursuant to the subdivision; all moneys received from the sale of old-law tenement assessment bonds; sums appropriated in the budget or raised by taxation, and all other sums required to be paid into the fund. Upon the establishment of such fund, the moneys may be used to defray the expenses incurred in the execution of the orders issued by the Department of Housing and Buildings in making improvements, pursuant to such orders.

This new subdivision 6 of section 30'9 by paragraph (g) enacts: “ The board of assessors, or other body of such city charged with the making of assessments for local improvements * * * shall, upon the certificate of the department charged with the enforcement of this chapter, assess the amount of such expenses against the property upon and with respect to which the work was performed, which property shall be deemed benefited to the extent of such expenses. Such certificate shall be accompanied by a copy of the order and notice served pursuant to subdivision one of this section and a copy of the affidavit executed and filed pursuant to subdivision four of this section, and such certificate, when accompanied by such papers, shall be binding and conclusive on such board or body. Except as in this subdivision otherwise provided, subsequent proceedings with regard to such assessments shall in all respect be as prescribed by the charter, local laws or ordinances of such city. Confirmation of such assessments by such board of assessors, or other like body, exercising original power of confirmation, shall be deemed final. Every such assessment, after confirmation, shall be a lien or charge upon the property or premises in respect to which the same may have been made, which lien shall have priority over all other liens and encumbrances, including mortgages, whether or not recorded previously to the levying of such assessment, * * Assessments remaining unpaid for ninety days carry seven per cent interest. Chapter 12 of the Administrative Code for the City of New York (Laws of 1937, ch. 929), relating to assessable improvements, even if applicable to such an assessment as is here contemplated, could not touch the reasonableness or the amount of the assessment, as the certificate and affidavit referred to are to be binding and conclusive on the assessing board Or body. The local laws and ordinances apply except as to this provision of finality.

The other provisions of the Multiple Dwelling Law, section 309, relating to the duties and privileges of the owner, remain as they were before the passage of this amendment, chapter 353 of the Laws of 1937. The Department of Housing and Buildings may order improvements which it deems necessary to be made in old law tenement buildings. If the order is not complied with within twenty-one days after service, the department may make the changes through its agents, employees or contractors; that is, it may in its discretion let out contracts for the repairs to be done, pursuant to the section and the charter, As against the owner, the department shall have a lien for all these expenses, which lien shall have priority over all other liens and incumbrances, except taxes and assessments and mortgages recorded previously to the existence of such lien, Now by the amendment the mortgagee may be brought in by notice and, as stated above, the lien may even have priority over his mortgage.

Subdivision 4 of section 309 has reference to the affidavit which is to be made regarding the expenses, in these words: “ When the said department shall, through its own officers, and men and means, have executed or so far executed as said department may require, any order, the expense of such execution, giving in general terms the items of such expense and the date of execution, shall be stated in an affidavit and the same shall be filed among the records of said 'department with the order so executed; * * *.”

This is the affidavit referred to in paragraph (g) of subdivision 6, which becomes binding and conclusive on the assessing board even though it is not stated by whom the affidavit must be made.

A brief summary of these provisions may be given as follows: The Department of Housing and Buildings may order improvements and'alterations to be made in old law tenement houses. If the owner does not desire to comply with the law and incur the expense, he can close up the building or devote it to other uses. If he desires to continue the tenement, he may make the alterations at his own expense or permit the city to do it for him. In making these determinations the mortgagee is not consulted. The mortgagee not being in possession, has no option whatever, but must sit idly by while the department or the owner proceeds to diminish the value of his lien. The work being done, and the record and affidavit being filed with the Board of Assessors, as required, the expenses become a lien upon the property ahead of his mortgage, all of which is final as to him. The law affords him no opportunity to be heard as to the reasonableness of the proceeding or the expenses. His property is thus taken without due process of law (State Const, art. I, § 6), and the obligation of his contract with the mortgagor impaired, contrary to the provisions of article I, section 10, of the United States Constitution.

The seriousness of this situation is apparent from the agreed statement of facts, upon which this case comes before the courts. The plaintiffs, Central Savings Bank, the Emigrant Industrial Savings Bank, and Dry Dock Savings Institution are domestic banking corporations. The Central is the owner and holder of approximately 1,700 mortgages on old law tenement houses in New York city; the Emigrant Industrial, of approximately 1,900 mortgages on such houses, and the Dry Dock Savings Institution, the owner and holder of approximately 900 mortgages.

The Central Savings Bank is the owner and holder of a mortgage covering 45 First avenue, in the borough of Manhattan, dated March 24, 1927. The amount is $20,000, with interest due from November 1, 1935, amounting to $2,250. It is neither in possession nor control of the premises, nor does it have a present right to the possession or control thereof. Erected on the premises is a multiple dwelling, commonly known as an old law tenement house, comprising separate apartments — the residence or home of more than three families living independently of each other. The mortgage is a first hen. Violations are filed against the property for failure to comply with the requirements of the Multiple Dwelling Law.

On or about May 2, 1938, the Department of Housing and Buildings of the City of New York posted upon the buildings, and sent to the owner and mortgagee an order directing the removal of the violations, and a notice stating that, unless the orders were complied with within twenty-one days after the mailing thereof, the Department of Housing and Buildings might exercise the powers conferred upon it by subdivision 6 of section 309 of the Multiple Dwelling Law. It is agreed that the twenty-one days have expired and none of the orders have been complied with, so that the Department of Housing and Buildings intends to make the repairs and necessary alterations, and intends to have the cost and expenses, amounting to $1,621, made liens upon the premises, having priority over the mortgage. Similar allegations are made regarding a mortgage held by each one of the other two plaintiffs. This agreed statement is evidently to present to the court test cases which will afiect the 4,500 mortgages held by the plaintiffs. The sole question submitted by the agreed statement is whether section 309 of the Multiple Dwelling Law, as amended by chapter 353 of the Laws of 1937, is constitutional within the limitations of the Constitution of the United States and the State of New York as it applies to these mortgagee plaintiffs.

By subdivision 6 of section 235 of the Banking Law (Cons. Laws, ch. 2), savings banks may invest to an amount not exceeding 60 per centum of the appraised value of real property. These plaintiffs are presumed to have complied with this law, and have invested their money by contract through bond and mortgage in these respective properties as first liens having an equity sufficient to secure the savings of their depositors. Now, in the discretion of the Department of Housing and Buildings, alterations may be made in these buildings by arrangement between the department and the owner, or without his consent, whereby substantial hens may come in ahead of the mortgages. The owner, as has been heretofore said, may obviate this by discontinuing the use, but the mortgagee has nothing to say about it. He is given no opportunity for a hearing and cannot question the reasonableness or the amount of the expense. An affidavit filed by an unknown official or employee determines the hen. The result of this procedure is that the plaintiffs pay for ah the improvements and alterations without having been given their day in court or afforded any hearing. The improvements do not increase the value of the mortgage security as it in effect becomes a second hen. This surely is a taking of the plaintiffs’ property without due process of law, and is also a violation of their contract for a first hen by an act of the Legislature which authorizes it. (Matter of Trustees of Union College, 129 N. Y. 308; Stuart v. Palmer, 74 N. Y. 183; Worthen Co. v. Kavanaugh, 295 U. S. 56; Panhandle Eastern Pipe Line Co. v. State Highway Commission, 294 U. S. 613; Worthen Co. v. Thomas, 292 U. S. 426; Londoner v. City and County of Denver, 210 U. S. 373; Davis v. McLean County, 52 N. D. 857; Yeatman v. King, 2 N. D. 421.)

The rights of the mortgagee, however, go much further than to require the mere service of notice and an opportunity to be heard. No lien under this law can be placed upon the property which supersedes the lien of the mortgage. The situation, as already appears, of the owner and that of the mortgagee, are entirely different. Whatever improvements or changes the owner may make at his own expense to enable him to continue the property as a multiple dwelling, would not and could not take precedence over the first mortgage. The owner would have no hen as against the mortgagee for such expenses. How can the city, because it advances the funds for such a purpose, obtain such a preference? It only acts when the owner refuses to make such improvements and insists upon maintaining a tenement house in spite of the mortgagee’s rights or claims. In other words, while the owner can have no hen for his expenditures, the same result is arrived at indirectly through the city advancing the money for him, thereby procuring a first hen. That is, the remodelling will always be made at the expense of the mortgagee who, as we have seen above, has contracted for a first hen under a law which in these instances requires the security to be a first hen.

It is no answer to this suggestion to say that the property has been improved to the extent of the expenditures. They may or may not add anything to the land value, and on foreclosure sale might not bring one penny more to the mortgagee. It is common knowledge that in New York city many buildings add nothing to the land value. The improvements may or may not enhance the value of the mortgagee’s security. It is a speculation, with the chances greatly against their doing so. We may fairly assume that the hen given to the city for the required improvements very materially affects the mortgage security, the property of the mortgagee, and abrogates the contract which he has made with the mortgagor.

That the Legislature, in the interest of public health, safety and welfare, may require tenement houses to be constructed in a certain way and to be supplied with specified equipment, is beyond question. This court has held that so far as the owner is concerned, he cannot maintain the old style tenement house without compliance with this law. (See the cases cited at the introduction of this opinion.) The Legislature cannot, however, require or force an owner to use his property in a certain way or as a tenement or apartment. If the building is dangerous or unsuitable, the city, in the interest of the public health or welfare, may close it up or restrict its use, or even, where dangerous, demolish it; but it cannot compel the owner to keep it for a specific use. This is what the Legislature cannot do or cannot authorize the city to do, although in effect it has tried to accomplish this in reference to property owned by these mortgagees, i. e., the mortgages. Against their will, acting in conjunction with the owner, it has required the mortgagees to continue the building as a tenement house, remodelled as such at their expense to comply with the law. The mortgagees have no alternative except to give up their property and their hens, although their contract, as do all mortgages, obliges the owner to comply with ah municipal regulations at his own expense. He is supposed to obey all laws and ordinances. Should the owner fail to meet this contract and^obligation, then the mortgagees might have a right to foreclose, or to make the changes, increasing by so much their own liens. Section 258 of the Beal Property Law (Cons. Laws, ch. 50) prescribes (Schedule M) a form of mortgage including, " That no building on the premises shall be removed or demolished without the consent of the mortgagee.” These rights and privileges have been taken away by this law so far as the mortgagees are concerned, and they are compelled to give up their property and to submit to a violation of their contract because the owner and, we may say the city, prefers to continue the use of the property as tenements rather than to close them up or permit the mortgagees to take them over.

This is not such a case as Loring v. Commissioner of Public Works (264 Mass. 460), where water was supplied to buildings, the price of which was made a first lien upon the property superior to all others. The lessor or owner in such a case was held liable for the water rates in spite of the fact that his lessee had agreed to pay them. The owner or, we may add, mortgagees are supposed to acquiesce in such regulations, but we think it is going too far to say that mortgageés have accepted their mortgages with any anticipation or with any view, express or implied, that the Legislature or the city can deprive them of their lien by remodeling buildings in order to relieve the owner of his contractual obligation, to himself make the repairs or improvements, especially as his refusal or failure is due entirely to his unwillingness to adapt his houses to any other purpose or to close them up.

This law, therefore, shoving the mortgage lien into second place at the behest or desire of the mortgagor, contrary to all his contractual obligations, is unconsti-. tutional both under the Federal and State Constitutions.

The court below took the position that because the word “ assessment ” was used in this law, the expenses charged against the property were in the nature of tax. This cannot be for the reason that the charges upon the real estate were optional with the owner. He accepted the benefit or not as he pleased. The cost of the improvements was not made a public expense to be a charge upon the property even if we consider them in the nature of public benefits unless the owner willed to have them so. A tax is a forced charge levied by the State upon persons or property. It operates in invitum and is in no way dependent upon the will or contract, express or implied, of the persons taxed. (City of Rochester v. Bloss, 185 N. Y. 42, 47, 48; City of New York v. McLean, 170 N. Y. 374. See, also, Davis v. McLean County and Yeatman v. King, supra.) The Legislature cannot create a tax by calling it an assessment when it has not the elements or substance of a tax. (Matter of Long Island R. R. Co. v. Hylan, 240 N. Y. 199; United States v. Butler, 297 U. S. 1, p. 61; Carson v. Brockton Sewerage Commission, 182 U. S. 398.) The proposed lien in this case is a mere incident to the Multiple Dwelling Law in order to force compliance. The city always had the authority, and still has, to close up or demolish buildings which are a public nuisance, or it may condemn property for public purposes, but even in these instances, notice and a hearing are afforded the owner.

We, therefore, reverse the judgment below and direct judgment for the plaintiffs, declaring that any liens imposed upon the respective premises for the expenses of making alterations or repairs in accordance with the orders of the Department of Housing and Buildings shall at all times be subject and subordinate to the plaintiffs’ respective mortgage hens. The parties have stipulated that there shall be no costs on this appeal.

The judgment of the Appellate Division should be reversed and judgment directed in favor of plaintiffs in accordance with this opinion, without costs.

Lehman, O’Brien, Htjbbs,> Loughran, Finch and Rippey, JJ., concur.

Judgment accordingly.


author: Hubbs, J.

text:
    Theresa O’Meara, Respondent, v. Postal Telegraph-Cable Company, Appellant.
    Argued October 26, 1938;
    decided December 6, 1938.

      John L. Farrell and Howard L. Kem for appellant*
    Defendant’s entry upon the highway in 1883 and the erection of its telegraph line thereon was not unlawful. (Pensacola Tel. Co. v. Western Union Tel. Co., 96 U. S. 1; City of Owensboro v. Cumberland Tel. Tel. Co., 230 U. S. 58; Louisville v. Cumberland Tel. & Tel. Co., 224 U. S. 649; Town of Essex v. New England Tel. Co., 239 U. S. 313; Western Union Tel. Co. v. Attorney-General, 125 U. S. 530; Postal Tel. Co. v. Chicopee, 207 Mass. 341; Western Union Tel. Co. v. City of Richmond, 178 Fed. Rep. 310; 224 U. S. 160; St. Louis v. Western Union Tel. Co., 63 Fed. Rep. 68; 166 U. S. 288; People ex rel. Postal Tel. Co. v. Tax Commrs., 224 N. Y. 167; N. Y. Tel. Co. v. State, 169 App. Div. 310; 218 N. Y. 738; Los Angeles Gas & El. Co. v. City of Los Angeles, 251 U. S. 32.) The defendant is entitled to judgment on the ground of adverse possession and chapter 40 of the Laws of 1886 is not a bar. (Town of Essex v. New England Tel. Co., 239 U. S. 113; Western Union Tel. Co. v. Polhemus, 178 Fed. Rep. 904; Dartnell v. Bidwell, 98 Atl. Rep. 741; Postal Tel. Co. v. Forster, 144 Pac. Rep. 491; Teeter v. Postal Tel. Co., 172 N. C. 783.) Defendant acquired also, by prescription, a perpetual right to maintain and operate its telegraph line in locations occupied since 1883, and chapter 40 of the Laws of 1886 is not a bar. (Town of Essex v. New England Tel. Co., 239 U. S. 313.) Even if it could be held that the statute of 1886 barred defendant from acquiring an easement by prescription and also title by adverse possession, still plaintiff is estopped from maintaining an action in trespass or ejectment or any action analogous thereto. (Town of Essex v. New England Tel. Co., 239 U. S. 313; Roberts v. Northern Pacific R. R. Co., 158 U. S. 1; Northern Pacific R. R. Co. v. Smith, 171 U. S. 260; Quigg v. Treadway, 222 App. Div. 164.)

      Elwood C. Smith for respondent.
    Defendant’s entry was unlawful as to owners. (St. Louis v. W. U. Tel. Co., 148 U. S. 92; W. U. Tel. Co. v. Massachusetts, 125 U. S. 530; W. U. Tel. Co. v. Penn. R. R. Co., 195 U. S. 540; W. U. Tel. Co. v. City of Richmond, 224 U. S. 160; People ex rel. Postal Telegraph-Cable Co. v. State, 224 N. Y. 167.) Defendant acquired no title to land or easement by adverse possession. (Scallon v. Manhattan Ry. Co., 185 N. Y. 359; People ex rel. Postal Telegraph-Cable Co. v. State, 224 N. Y. 167; Andrews v. Delhi & Stamford Tel. Co., 36 Misc. Rep. 23; 66 App. Div. 616; People v. Raeder, 161 Misc. Rep. 557.) Assuming that defendant entered and held adversely, rights ceased three years later. (Andrews v. Delhi & Stamford Tel. Co., 36 Misc. Rep. 23; 66 App. Div. 616; Brearley School v. Ward, 201 N. Y. 358; People v. Raeder, 161 Misc. Rep. 557.) Defendant acquired no easement by prescription. (Cons. Laws, ch. 50, § 261; Andrews v. Delhi & Stamford Tel. Co., 36 Misc. Rep. 23; 66 App. Div. 616; People v. Raeder, 161 Misc. Rep. 557.)
   Hubbs, J.

Plaintiff is the owner of the record title to a parcel of real property over which, from 1883 to 1925, ran a public street. In 1883 the defendant erected certain poles, wires, cross-arms, guys, stubs and other fixtures in that street for the purpose of carrying telegraph messages. It acquired no license, consent or permission so to do from the then owner and has not since acquired a license, consent or permission of a subsequent owner. In 1925, without notice to the defendant, proceedings were taken which resulted in the discontinuance of the road as a public highway, but the use of a portion of the road over plaintiff’s property was never wholly discontinued.

In 1931 the attorney for the then owner notified the defendant of the abandonment of the highway and demanded the removal of its poles and wires.

This action is for a judgment declaring the rights of the parties. On the part of the plaintiff it is claimed that she is the owner in fee of the land on which the poles stand, that no permit was ever given for their erection, that defendant has acquired no prescriptive right to maintain the poles by reason of lapse of time, due to the enactment of chapter 40 of the Laws of 1886, now section 261 of the Real Property Law (Cons. Laws, ch. 50), and that any right it may have had to maintain the poles in the highway under the so-called Post Roads Act (14 U. S. Stat. p. 221, act of July 24, 1866, ch. 230, § 1, now U. S. Code, tit. 47, § 1) has been lost by reason of the abandonment or discontinuance of the highway.

The defendant claims, on the other hand, that its entrance in and upon the highway in 1883 was not unlawful, having been done pursuant to the Post Roads Act, that such act constitutes a grant or franchise which cannot be overridden by a State statute, that the 1886 statute of the State of New York is not a bar to the acquisition of a right by prescription or adverse possession, and that, accordingly, it has now a right by adverse possession and prescription to maintain its line over the land in question and, moreover, that by lapse of time without objections plaintiff is estopped from maintaining an action in trespass or ejectment.

The trial court found that the Post Roads Act did not have the effect of giving a telegraph company the right to maintain a pole line in a public highway without compensation, where the title of the abutting owners runs to the center of the highway. - That conclusion is supported by the decision in Eels v. American T. & T. Co. (143 N. Y. 133). The trial court further held that but for the bar set up by the enactment in 1886 of what is now section 261 of the Real Property Law, all essential elements to constitute an effective adverse possession would be presented. It held, however, that section 261 presents an effective bar to the-gaining of a grant, actual or presumed, which entitles the defendant to maintain its pole line upon the premises of plaintiff, either by prescription or by adverse possession, and that the plaintiff is entitled to judgment determining her right to have the pole line removed unless condemnation proceedings be instituted by the defendant. The decision of the trial court has been unanimously affirmed by the Appellate Division.

The only question is whether the effect given to section 261 of the Real Property Law is warranted. That section reads: "Whenever any wire or cable used for any telegraph, telephone, electric light or other electric purpose, or for the purpose of communication otherwise than by the aid of electricity, is or shall be attached to, or does or shall extend upon or over any building or land, no lapse of time whatever shall raise a presumption of any grant of, or justify a prescription of any perpetual right to, such attachment or extension.” The defendant argues that the statute has no application because here it is the poles which are on plaintiff’s land and poles are not mentioned in the statute. That argument is without force. Plaintiff has not confined the relief asked to removal of the poles, and how defendant would be benefited by a determination that it might leave its poles but not its wires is not indicated. The wires are attached to the ground by the poles and other equipment, thereby bringing the whole equipment within the clearly indicated purpose of the statute.

This court having held in Eels v. American T. & T. Co. (supra) that the erection of poles and stringing of wires in a highway the fee to which is owned by an abutting owner is unlawful, and the statute clearly stating that no prescriptive right can be acquired or presumption of a grant raised with respect to such a line, it is difficult to see how any contrary conclusion could be reached than has been reached here. The Federal courts have held that the Post Roads Act does not authorize a telegraph company to appropriate private lands or construct its lines over private property without consent (St. Louis v. Western Union Tel. Co., 148 U. S. 92, also Western Union Tel. Co. v. City of Richmond, 224 U. S. 160, 169, where it was said that the act gives “ no right to use the soil of the streets, even though post-roads, as against private owners ”), and it has been held by this court that where a telegraph company seeks to appropriate parts of highways to an exclusive use it is within the power of the State to exact compensation. (People ex rel. Postal Telegraph-Cable Co. v. State Board of Tax Commrs., 224 N. Y. 167.) There the court said: “ The act is permissive and the privilege granted by it does not carry the 1 unrestricted right to appropriate the public property of a state. It is like any other franchise, to be exercised in subordination to public as to private rights ’ * * *” (p. 177).

The questions presented in this case were decided against the contentions of defendant in Andrews v. Delhi & Stamford Tel. Co. (36 Misc. Rep. 23; affd., 66 App. Div. 616).

The judgment should be affirmed, with costs.

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

Judgment affirmed.


author: Lehman, J.

text:
    In the Matter of Frederick Small, Respondent, against Paul Moss, as Commissioner of Licenses of the City of New York, Appellant.

      Argued October 11, 1938;
    decided December 6, 1938.

      William C. Chanter, Corporation Counsel {Alan M. Stroock, Paxton Blair and David I. Shivitz of counsel), for appellant.
    Since the only disinterested witnesses and the only expert witness called upon the trial testified that if a theatre were erected at the site traffic conditions would create a danger which mere regulation could not cure, the Commissioner’s exercise of discretion, if within his power, cannot be overridden by the courts. (People ex rel. Lodes v. Department of Health, 189 N. Y. 187; Matter of Ormsby v. Bell, 218 N. Y. 212; Message Photo-Play Co. v. Bell, 179 App. Div. 13.) The Commissioner of Licenses has full power under statute and ordinance to. deny a motion picture theatre license on the ground that traffic conditions at the site would imperil the public safety. (Message Photo-Play Co. v. Bell, 179 App. Div. 13; Matter of Rudhlan Amusement Corp. v. Geraghty, 146 Misc. Rep. 308; Matter of Armstrong v. Murphy, 65 App. Div. 123; Matter of Agoglia v. Mulrooney, 259 N. Y. 462; People ex rel. Moses v. Gaynor, 77 Misc. Rep. 576; 160 App. Div. 881; Matter of Noeth v. Valentine, 247 App. Div. 807; People ex rel. Worth v. Grant, 58 Hun, 455; Matter of Ormsby v. Bell, 218 N. Y. 212; Matter of Goelet v. Moss, 248 App. Div. 499; 273 N. Y. 503.)

      Israel Hoffman and Dcwid Steckler for respondent.
    There is evidence in the record to sustain the trial court’s finding that there was no reasonable basis for the defendant’s conclusion that the erection of a theatre at the site would create a traffic hazard. There is, therefore, no error of law in the findings. (People ex rel. Gleason v. Scannell, 172 N. Y. 316; Matter of Empire Home Furnishers, Inc., v. White, 143 Misc. Rep. 285; 235 App. Div. 522; People ex rel. Fordham M. R. Church v. Walsh, 244 N. Y. 280; Morgan v. United States, 58 Sup. Ct. Rep. 773; Matter of Goelet v. Moss, 248 App. Div. 499; 273 N. Y. 503; New Orleans Public Service, Inc., v. City of New Orleans, 281 U. S. 682.) The defendant, in the exercise of the licensing power, had_no jurisdiction to predicate denial of a theatre license upon the ground that the erection of a theatre would create a traffic hazard. His denial, therefore, was arbitrary as a matter of law. (Wallack v. Mayor, 3 Hun, 84; Grimmer v. Tenement House Dept., 205 N. Y. 549; Matter of Buckley v. Pugh, 137 Misc. Rep. 594; Cherubino v. Meenan, 253 N. Y. 462; Matter of Larkin Co. v. Schwab, 242 N. Y. 330; Matter of Smith v. Morgan, 253 App. Div. 239.)
   Lehman, J.

The Commissioner of Licenses of the City of New York has denied an application of the petitioner for a license to erect a motion picture theatre upon a plot of ground on River dale avenue in the city of New York. Claiming that the Commissioner’s refusal was arbitrary, the petitioner applied to the Supreme Court for an order of mandamus directing the Commissioner to grant the license. Defeated at Special Term, the petitioner was successful upon appeal to the Appellate Division.

To promote the general welfare and the public health and safety the Legislature of the State and the Board of Aldermen of the City of New York have adopted statutes and ordinances which regulate the erection and maintenance of theatres. No owner of real property in the city of New York may use his property for a theatre until he has complied with these regulations and has obtained a license from the Commissioner of Licenses. In conferring upon an officer of the city power to grant licenses for theatres, the Legislature has failed to provide, in express terms, any standard or rule which should be applied by the officer in determining whether in a particular case a license should be granted or withheld. By section 1472 of the Charter of the City of New York (Laws of 1897, ch. 378, amd. Laws of 1901, ch. 466) it banned theatrical exhibitions until a license for the place of such exhibitions had been obtained. By section 1473 it conferred upon the Police Department a general power to grant such license and in the following sections it made regulations for the conduct of exhibitions intended, it is plain, to protect the public decency against outrage and also made provision for the safety of patrons of places of amusement by requiring conspicuous marking of means of exit. By necessary implication, if not by the express terms of the statute, licenses could not be granted to those who violate any provision of the law. Power to refuse on any other ground, if it exists, rests upon implications which are less clear.

By subsequent statute the Legislature decreed that these provisions of the charter were to continue in force only until the Board of Aldermen of the city should pass ordinances regulating these matters. (Laws of 1901, ch. 466, § 3.) Thereafter the Legislature created a Department of Licenses, and all the powers exercised by the Police Commissioner with respect to theatre licenses were transferred to the new department. (Charter of City of New York, §§ 640 and 641; Laws of 1914, ch. 475, as- amended by Laws of 1917, ch. 618.) Acting under the powers conferred upon it by law, the Board of Aldermen incorporated in the Coda of Ordinances of 1915 provisions for the regulation of theatrical exhibitions and for the exercise by the Commissioner of Licenses of the power to grant licenses. These ordinances, with some additions, were in effect at the time when the petitioner applied for a license. Like the provisions of the charter, these ordinances do not in express terms furnish any rule or standard to be applied by the Commissioner in the exercise of his powers. We shall consider hereafter what rule or standard, if any, may be fairly implied.

A court may in proper case direct an administrative officer to perform a public duty which the law commands peremptorily without leaving any discretion to the officer; it may not limit in any manner a discretion which has been conferred upon a public officer by law. The petitioner has challenged the Commissioner’s refusal to grant a license on the ground that denial of the application is arbitrary and the court, by an alternative order of mandamus, has required the Commissioner to issue the license or to show cause for its denial. In his return the Commissioner has alleged that proof has been presented that the erection of a theatre at the proposed location would increase the pedestrian and vehicle traffic so as to create a condition dangerous to the travelling public ” and that the “ noise, traffic congestion and attendant parking problem resulting from the erection of a theatre at the proposed location would be a serious detriment to the general welfare, public health and safety of the community.” The petitioner can obtain a final order only if it appears that no such proof was presented or in the alternative, that the Legislature has failed to confer upon the Commissioner any discretionary power to refuse a license because of traffic conditions, revealed by the evidence presented to him or of which he might take notice.

Findings of fact made after a trial established, unless reversed or modified on appeal, that no proof had been presented to the Commissioner upon which he could conclude, that the erection and maintenance of a theatre upon said site would increase pedestrian and vehicular traffic to such an extent as to create a condition dangerous to the travelling public ” and also that there was no proof before the Commissioner upon which he could conclude, that the erection and maintenance of a theatre upon said site would create noise, traffic congestion or any attendant parking problem sufficient to be a detriment to the general welfare, public health and safety of the community.” Even assuming that the statute conferred upon the Commissioner power, in his discretion, to refuse a license for the erection and maintenance of a theatre at a location where a theatre would create a traffic condition dangerous to those who used the streets, including the patrons of the theatre, a refusal to grant a license would be arbitrary where no evidence was presented upon which the Commissioner might' base a conclusion that such a dangerous traffic condition would be created. Upon a previous appeal in this proceeding the only question presented was whether the findings supported the conclusion that the refusal was, under such circumstances, arbitrary. The evidence taken at the trial was not part of the record, and the findings were not subject to review. We held that upon the record presented, the court could not pass upon the extent of the discretion vested by law in the Commissioner, for even the widest discretion_would not justify a determination which is without any reasonable foundation in fact. (Matter of Small v. Moss, 277 N. Y. 501.)

Upon this appeal the evidence is part of the record and some of the findings of the trial court have been modified by the Appellate Division. Doubtless any new theatre, especially in a sparsely built up district of the city, will cause some increase of traffic and a substantial increase in demand for parking space in that neighborhood. Increase of traffic and increase of parking on streets where the increased traffic will pass will, we may assume, cause some increase of traffic hazard. In this case there is some evidence that the physical conditions of the street at the location of the proposed theatre create even now, before any theatre has been erected, a hazard to the vehicles stopping at or passing that location, and if more motor vehicles are attracted to that point more persons will be subjected to that hazard, and perhaps the hazard will be intensified. If the Commissioner is vested with discretion to refuse a license for a theatre at a location where its patrons and others passing that point would be subjected to a traffic hazard perhaps increased by the additional use of the street which, it may be anticipated, will result from the erection of a theatre, then we cannot say that the refusal of a license in this case is arbitrary, though the danger would perhaps not be great and the court might reach other conclusion if it had the right to substitute its discretion for the discretion vested in the administrative officer. The question then is, as the Appellate Division pointed out, whether the creation of a traffic hazard was a ground which the commissioner might consider in denying a license.” (255 App. Div. 1, 2.)

By the Constitution of the State and by statute, broad power was conferred in local legislation upon the Board of Aldermen and its successor, the Council. By the zoning ordinances the use of real property for particular purposes has been restricted to locations which in the opinion of the body exercising legislative powers are suited for such use. The local legislative body may in proper case have power to prohibit the use of property when in its opinion such use would be detrimental to the public health, safety or welfare, and to consent to the use when in its opinion such use would not cause injury to the public. In such case it exercises a legislative power, and no general standards need be formulated by it which must govern its determination as to when its consent should be granted or withheld. (Matter of Larkin Co. v. Schwab, 242 N. Y. 330.) We, there, pointed out a distinction between the exercise of the law-making power by a legislative body and the exercise of powers delegated to or conferred upon1 an administrative officer or board by the legislative body. In the first case discretion may be plenary; in- the second case, though the law-making body may confer a measure of discretion, it must at the same time define the limits of that discretion and fix the rules or standards which must govern its exercise. The question before us is not whether the city has power to prohibit the erection and maintenance of a theatre at a location where a traffic danger exists or would be created by a new theatre. The question is not whether the Council might confer such power upon the Police Department or even upon the Commissioner of Licenses with appropriate directions for its exercise. The question before us is the narrow one: whether in fact such power has been conferred upon the Commissioner.

Certainly there is nothing in the provisions of the charter itself which indicates any intention to confer such power upon the Department of Licenses. A property owner ordinarily has a right of access from the street to his premises for convenience, pleasure or business.” (Matter of Larkin Co. v. Schwab, supra, p. 338.) He may expect the ' city to preserve and protect that right by reasonable traffic regulation, by proper street lighting, and even, where practicable, by change of contour of the street. In spite of well-planned and well-executed measures directed to that end, some streets will still be unsuited to heavy traffic, and some points will present peculiar traffic dangers. A legislative policy which would restrict the use of property upon such streets and especially at such points to purposes which would not attract large numbers of automobiles or increase traffic dangers might promote the public welfare; but no such legislative policy has been adopted, and we do not consider now what laws, if any, could validly be enacted to make such a policy effective. At present no law would prevent the erection of a department store, or the maintenance of any other lawful business not requiring a license, at the point where the petitioner wishes to erect a theatre though such business might bring more traffic than a theatre. There is no law which expressly provides that the Commissioner of Licenses may refuse a license for a lawful business which would bring increased traffic and create a traffic danger for travelers on the street. The right of the State to require that in the public interest theatres must be licensed has long been asserted and invariably sustained by the courts, but never on the ground that the traffic brought to a theatre might cause a danger to the public using the street. Traffic problems have become infinitely more complex since the advent of motor vehicles and we may assume, though only arguendo, that now the Legislature might adopt a new legislative policy and confer upon the Commissioner of Licenses the power to determine whether the grant of a license to a theatre at a particular point would create a dangerous traffic condition; but the Commissioner has no power to declare any legislative policy or to create the standards which must govern the grant of a license. He may only apply the policy declared and the rules and standards laid down in statute and ordinance, and we search there in vain for a rule or standard which would justify refusal of a license for the erection of a theatre at a point where street traffic, and especially traffic increased by a new theatre, would subject travelers upon the street to danger.

We are told that by fair implication we may find such rule or standard in the ordinance which provides that Applications for motion-picture theatre licenses or for open-air motion-picture theatre licenses shall be made to the commissioner of licenses, who shall pass upon the location of the theatre and upon the character of the applicant for the license without delay. Upon the application for the issue or re-issue of a license for a motion-picture theatre or an open-air motion-picture theatre, the commissioner shall request the fire department, the department of water supply, gas and electricity, the department of health, and the bureau of buildings in- the borough in which such theatre is located, to inspect the same, and the said departments and the appropriate bureau of buildings shall, within ten days after receiving such requests, file in the department of licenses detailed written reports, which shall include a statement of any violation of law, ordinance, rule or regulation relating to such structure, and any dangerous condition existing therein. Upon the failure of any department or bureau to file such report, the commissioner may disregard such department or bureau and, in his discretion, may issue a license.” (Code of Ordinances of the City of New York, ch. 3, art. 2, § 33.) (Italics are ours.)

It is argued that power to “ pass upon the location of the theatre ” includes power to determine whether the location is one where in the opinion of the Commissioner the erection of a theatre would promote or at least not harm the public welfare and the public safety.

We have already held that the Commissioner may not deny a license for the erection of a theatre because, in the opinion of the Commissioner, a theatre at that location would impair the general welfare. (Matter of Goelet v. Moss, 248 App. Div. 499; affd., 273 N. Y. 503.) We left open the question whether the Commissioner may deny a license because in his opinion a theatre at that location would impair the public safety.

Doubtless the Commissioner may refuse a license for a theatre at a location where a theatre may not lawfully be conducted, unless a license previously issued for the operation of a dry cleaning establishment in premises adjoining the location of the theatre is revoked. (Matter of Ormsby v. Bell, 218 N. Y. 212.) A power, indeed a duty, to refuse a license for any dangerous condition existing in the building or at the location where the theatre is to be established, and which comes within the jurisdiction of or violates a rule of the Fire Department, the Department of Water Supply, Gas and Electricity, the Department of Health or the Bureau of Buildings, may be read into the statute by fair implication from the provision for an inspection and report by each of their departments. Neither in these provisions nor in any other provisions in the ordinance or in any statute is there any fair implication that the Commissioner might refuse a license for a theatre at a location where travelers are or would be thereafter exposed to a traffic danger.

This court has repeatedly pointed out that the courts may not invade the field of discretion conferred by law upon an administrative officer. It has also pointed out that such field of discretion must be defined by the Legislature. The Legislature must set bounds to the field, ar.d must formulate the standards which shall govern the exercise of discretion within the field. Without the second rule as a corollary to the first rule there would be no effective restraint upon unfair discrimination or other arbitrary action by the administrative officer. The law, but not the will of an administrative officer, may reasonably restrict the use of real property. We repeat that the question before us is not whether the city of New York can by law restrain the maintenance of a theatre at a location where the street traffic is or may become dangerous, but is whether by statute or ordinance there has been a legislative declaration of a general policy that no theatre should be erected at such a location, and a delegation to the Commissioner of Licenses of power to determine whether such dangerous condition exists or may be created. The city in effect argues that no restriction upon the discretion of the Commissioner should be read into the statute by implication. We do not read into the statute restrictions upon any power granted in general terms to the Commissioner. We say that no undefined general power has been or could be conferred upon the Commissioner, and neither by express language nor by fair implication has power been conferred upon the Commissioner to withhold a license for a theatre from an applicant of good character, where the proposed theatre at that location would violate no provision of law and no rule or regulation of a department charged with the protection of the health or safety of the people of the city.

The order should be affirmed, with costs.

Crane, Ch. J., O’Brien, Htjbbs, Loughran, Finch and Btppey, JJ., concur.

Order affirmed.


text:
    In the Matter of the Application of Austin L. Mott, Respondent. Georgia Hare, as Administratrix of the Estate of Mary J. Hall, Deceased, Appellant.
    Argued November 21, 1938;
    decided December 9, 1938.

      Georgia Hare, in person, and Floyd H. Wilmot for appellant.
    The Surrogate’s Court has no jurisdiction to settle a Supreme "Court action involving controversies between living persons. (Matter of Collins, 157 Misc. Rep. 790; Isaacs v. Isaacs, 208 App. Div. 61; Matter of Heinze, 179 App. Div. 453; Matter of Thomas, 235 App. Div. 450; Matter of Lakner, 143 Misc. Rep. 117.) The Surrogate’s Court cannot obtain jurisdiction by acquiescence or consent. (Matter of Mondshain, 186 App. Div. 528; Matter of Newham v. Chile Exploration Co., 232 N. Y. 37; Matter of Walker, 136 N. Y. 20; Van Buren v. Harrison, 164 Misc. Rep. 774; Matter of Matthewson, 210 App. Div. 572.) If the Surrogate’s Court_did have jurisdiction over these funds obtained in the settlement of a Supreme Court action the administration expenses should have been determined prior to the decree compelling payment of funeral expenses. (Surr. Ct. Act, § 216; Matter of Rothstein, 151 Misc. Rep. 466; Matter of Lanza, 149 Misc. Rep. 95; Matter of Matyasz, 151 Misc. Rep. 370; Matter of Horn, 151 Misc. Rep. 261; Matter of Schoenfelder, 161 Misc. Rep. 654.)

      Joseph F. X. lacovino for respondent.
    The decree of the Surrogate directing payment of the claim for funeral expenses was in all respects proper and should be affirmed. Under the provisions of section 216 of the Surrogate’s Court Act the Surrogate acquired complete jurisdiction and had complete authority to make the decree. (Matter of Derry, 161 Misc. Rep. 135; Matter of Wingersky, 75 Misc. Rep. 79; Patterson v. Patterson, 59 N. Y. 574; Matter of Smallman, 138 Misc. Rep. 889; Matter of Tierney, 88 Misc. Rep. 347; Matter of Kulyk, 149 Misc. Rep. 855.)
   Rippey, J.

Mary J. Hall, late of the town of Locke, Cayuga county, died intestate on August 29, 1931. Letters of administration were issued by the Surrogate on January 6, 1932, to Georgia Hare, a creditor, under which she qualified and has since been acting. There has been no judicial settlement of the estate or proceedings therefor. The undertakers filed with the administratrix a claim for the funeral expenses of deceased. The claim was neither rejected nor paid.

Relying on the provisions of section 216 of the Surrogate’s Court Act, one Austin L. Mott filed a petition with the Surrogate in which he claimed to be the assignee of the claim of the undertakers, and asked for an order directing the administratrix to pay the amount of their bill with interest from August 31,1931. He alleged, upon information and belief, that she had moneys of the estate in her hands which were applicable to the payment of the claim. An order was issued directing the administratrix to show cause why the bill should not be paid. On the return day, the administratrix filed a verified answer in which she admitted that the undertakers had filed a claim for funeral expenses but denied that Mott was the owner of the claim. She denied that she had any moneys in her hands applicable to the payment of the bill. She further alleged that she did not engage the services of the undertakers and that Mary J. Hall had no property, real or personal, at the time of her death, having previously transferred it all to one Sam Case. She then alleged that she commenced an action in the Supreme Court (but in what capacity or by what right does not appear) to set aside the transfers and that, after much investigation including a discovery proceeding and after she had incurred expense, she and Case entered into a contract whereby the latter agreed to turn the property over to her with the understanding that such property should be sold Jay the respondent [Georgia Hare], and that after the payment of all expenses of administration, funeral expenses and debts, the balance should be given to said Sam Case.” Then follow allegations of the effort she had made to dispose of the property and that the liquidation thereof had not yet been completed and that the net amount available for the purposes mentioned had not been determined. Neither Case nor the heirs of the deceased were made parties. There is nothing in the record to indicate that the Supreme Court action is not still pending undetermined.

On the return of the citation, the Surrogate was required to act in accordance with the provisions of section 216 of the Surrogate’s Court Act. The administratrix, by her answer, put in issue the questions of the amount and ownership of the claim and whether she had any funds of the estate in her hands from which it might be paid. The Surrogate took no proofs, failed to reserve the matter to the final accounting but, on the motion of the attorney for Mott and “ on motion of the Surrogate himself,” ordered her to make and settle her account on or before December 16, 1937. In that order he neither fixed the amount of the funeral expenses nor ordered the bill paid.

Thereupon the administratrix filed an account in which she named heirs and creditors who were required to be cited, alleged, among other things, that she had no assets of the estate available for the payment of any claims against the estate, showed the state and condition of the transactions with Case and that the property received from him had not been liquidated or that the amount received or to be received from him had not been settled, that questions relating to the property and affecting title had not been disposed of and set up her expenses in connection with the liquidation of the Case property and with her administration of the estate. Without taking proof from either party, settling the account or fixing the expenses of administration, the Surrogatejthen made a decree in which he found that Mott’s claim was valid and ordered it paid.

We find no evidence in the record to sustain any of the findings, orders or decrees of the Surrogate nor do we find any authority in law for the practice followed. An account having been filed in which the funeral bill was set up as a debt, there was no authority in the Surrogate under section 216 or elsewhere to order the bill paid. Section 216 provides that “ such claim shall not be paid before expenses of administration are paid.”

The order of the Appellate Division and the order and decree of the Surrogate’s Court should be reversed and the matter remitted to the Surrogate with directions to proceed in accordance with the requirement of the provisions of section 216 of the Surrogate’s Court Act, with costs in this court to the appellant Hare payable out of the estate.

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

Ordered accordingly.