author: Conway, J.

text:
    Gracie Square Realty Corp. et al., Respondents, v. Choice Realty Corp., Defendant, and 154 East 97th Street Corp. et al., Appellants. 154 East 97th Street Corp., Plaintiff, v. Edwin Schelberg et al., Impleaded Defendants.
    Argued February 26, 1953;
    decided May 21, 1953.

      S. E. Martinson and Edward Martinson for appellants.
    I. The testimony of plaintiffs, purporting to a discussion of terms alleged in the complaint, discloses only a preliminary negotiation, unenforcible, even if same were in writing. (Hughes v. De Simone Stevedores, 277 App. Div. 371; Perkins v. Meyer, 302 N. Y. 139; Schwartz v. Greenberg, 304 N. Y. 250; 1130 President St. Corp. v. Bolton Realty Corp., 300 N. Y. 63; Berk & Co. v. Derecktor, 301 N. Y. 110.) II. The alleged part performance is not positive, unequivocal and solely referable to a contract with appellants. (Burns v. McCormick, 233 N. Y. 230; Maddison v. Alderson, 8 App. Cas. 467; Canute v. Minor, 232 App. Div. 325, 258 N. Y. 558; Woolley v. Stewart, 222 N. Y. 347; Wheeler v. Reynolds, 66 N. Y. 227; Hallenbeck v. Griffith, 139 Misc. 796, 232 App. Div. 785; Rosen v. 250 West 50th St. Corp., 270 App. Div. 171, 296 N. Y. 567; Roberts v. Fulmer, 301 N. Y. 277; Dunphy v. Ryan, 116 U. S. 491; Naame Co. v. Satanov & Co. Corp., 103 N. J. Eq. 386; Ham v. Massasoit R. E. Co., 42 R. I. 293; Barrett v. Geisinger, 148 Ill. 98; Young v. Ingalsbe, 208 N. Y. 503.) III. Respondents lack equity as a matter of law. (Ansorge v. Kane, 244 N. Y. 395; Rudiger v. Coleman, 199 N. Y. 342; United Press v. New York Press Co., 164 N. Y. 406; Perrin v. Smith, 135 App. Div. 127; Bialostok v. A. & M. Knitting Mills, 272 App. Div. 936; Milnes v. Grey, 14 Ves. Jr. 400, 33 Eng. Rep. 574; Agar v. Macklew, 2 Sim. & Stu. 418, 57 Eng. Rep. 504; Greason v. Keteltas, 17 N. Y. 491; Noyes

      v. Marsh, 123 Mass. 286; Davila v. United Fruit Co., 88 N. J. Eq. 602; Texas Co. v. Z. & M. Ind. Oil Co., 156 F. 2d 862; Cooke v. Miller, 25 R. I. 92; Dinham v. Bradford, L. R. 5 Ch. 519; Castle Creek Water Co. v. City of Aspen, 146 F. 8; Morris v. Ballard, 16 F. 2d 175; Stimson v. Gray, [1929] Ch. 629.) IV. There is no cause of action against the individual defendants. (Dung v. Parker, 52 N. Y. 494; Subirana v. Munds, 282 N. Y. 726.) V. Respondents’ adjective contentions respecting summary judgment are unsound. In any event judgment on the pleadings would have been proper as a matter of law. (Lloyd v. R. S. M. Corp., 251 N. Y. 318; Volk Co. v. Cauldwell-Wingate Co., 272 App. Div. 290; Montrose v. Wannamaker, 21 Abb. N. C. 478; Valentine v. Harbeck, 22 Abb. N. C. 448; White v. Merchants Desp. Transp. Co., 256 App. Div. 1044; Wels v. Rubin, 254 App. Div. 484, 280 N. Y. 233; Chance v. Title Guar. Trust Co. of N. Y., 173 Misc. 754.)

      William J. Block for respondents.
    I. The motion for summary judgment under rule 113 of the Rules of Civil Practice was properly denied. (Timmerman v. City of New York, 69 N. Y. S. 2d 102, 272 App. Div. 758; Dumont v. Raymond, 49 N. Y. S. 2d 865, 269 App. Div. 592; Zeldman v. Electrolux, Inc., 161 Misc. 849; Reliable Textile Co. v. Elk Dye Works, 177 Misc. 926; Universal Credit Co. v. Uggla, 248 App. Div. 848; First Trust & Deposit Co. v. Holt & Thomas, Inc., 236 App. Div. 714.) II. The contract pleaded is sufficient. (Greason v. Keteltas, 17 N. Y. 491.) III. The part performance is sufficient. (Roberts v. Fulmer, 301 N. Y. 277; Rosen v. 250 West 50th St. Corp., 296 N. Y. 567; Burns v. McCormick, 233 N. Y. 230.) IV. It is the law of the case that the contract and the part performance are sufficient. V. The motion for judgment on the pleadings was properly denied. (Bogart v. County of Westchester, 270 App. Div. 274; Lipkind v. Ward, 256 App. Div. 74; Pletman v. Goldsoll, 264 App. Div. 393.)
   Conway, J.

Two causes of action are involved here. The first is for specific performance of an alleged realty contract for a perpetual easement and the second is for damages from the individual defendants for breach of warranty of authority in negotiating the alleged contract.

The second amended complaint alleges that in January, 1948, each of the plaintiff corporations owned a parcel of .real estate — one at 160 East 97th Street, New York City, and the other at 152 East 97th Street (Parcels A and B). Each of the defendant corporations also owned a parcel of real estate and those two parcels adjoined and together separated those of plaintiffs (Parcels E and F). The following diagram may be helpful to an understanding of the claim made by plaintiffs.

It is alleged that in January, 1948, the officers of plaintiffs approached the officers of defendants for the purpose of linking up their respective buildings by a garden project. Conversations, it is claimed, resulted in March, 1948, in an oral contract substantially as follows:

Plaintiffs were to purchase two buildings (Parcels C and D). They were then to construct at their own cost and expense a common entrance through the building on 96th Street (Parcel D) and a passageway over the rear yards of Parcels A, B, C, E and F. The entire fences on the boundary lines running north and south, as indicated in the rear yards of those parcels, were to be removed, paths were to be constructed to the several properties and the area was to be graded, landscaped and developed, so as to create an interior garden consisting of the entire rear yards of the above parcels — all at plaintiffs ’ expense.

Plaintiffs were to grant perpetual easements over their buildings and lands and the two buildings and lands to be acquired for the project in favor of the lands and buildings belonging to the defendant corporations and, in turn, it is alleged that the defendant corporations were to grant perpetual easements over their lands and buildings in favor of the plaintiffs properties then owned and to be acquired for the garden project. The plaintiffs were to pay two thirds of the cost of maintenance of the entrance, passageway and common garden and the defendants were to pay one third of such maintenance cost.

Plaintiffs allege that, in reliance upon the agreement they caused the two buildings (O and D) to be purchased and thereafter hired an architect to plan and design the project and, in connection with the project, vacated space in one of the buildings purchased (D) and engaged counsel in connection with the preparation of formal grants of the easements. They claim to have tendered documents granting easements and restrictive covenants relating to the maintenance of the garden to the defendants who refused to perform the conditions imposed upon them by the agreement.

The second cause of action is against two individuals, who were officers and agents of the corporate defendants, for damages for breach of warranty of authority to enter into the contract pleaded in the first cause of action.

By their third amended answer defendants controverted the existence of an agreement, pleaded that if there was such an agreement it was unenforcible by reason of the. Statute of Frauds (Real Property Law, § 259) and, further, that the alleged acts of part performance, if performed, were not done in reliance upon any promise of defendants. Counterclaims were also pleaded but are not material to this ajjpeal.

Defendants demanded a bill of particulars which was served. Plaintiffs admit therein that the alleged agreement was oral and state that, in addition to the acts set forth in the complaint which plaintiffs claim were performed in reliance upon the alleged agreement, they - caused the name Carnegie Hill Gardens ” to be registered as a trade name to describe the project.

Defendants also moved for an examination of. the plaintiffs before trial on the issue of part performance and such examination was held and is found in the record.

Thereafter, defendants moved, upon the pleadings, the bill of particulars and the examination before trial (a) for judgment on the pleadings dismissing both causes of action under rule 112 of the Rules of Civil Practice, and (b) for summary judgment dismissing both causes of action under rules 113 and 114.

Special Term denied the motion and the Appellate Division, First Department, affirmed, one Justice dissenting, but granted defendants leave to appeal upon certified questions of law.

Ordinarily a motion for judgment on the pleadings is addressed to the discretion of the court (see Civ. Prac. Act, § 476; Stevenson v. News Syndicate Co., 302 N. Y. 81, 87; Schnibbe v. Glenz, 245 N. Y. 388). However, in the present case the parties have treated the motion for judgment on the pleadings as a challenge to the legal sufficiency of the complaint and the Appellate Division has certified that its decision was made on the law and not in the exercise of discretion, and that only questions of law are involved in the order of affirmance. Therefore, we are not concerned with the question of whether the decision of the courts below can be justified as an exercise of discretion (see Stevenson v. News Syndicate Co., supra, 302 N. Y. 81, 87).

A motion for judgment on the pleadings is made on the pleadings and admissions only. The words “ admissions of a party or parties ” as used in this connection (Civ. Prac. Act, § 476) “ refer to admissions made in the action, and intended to be treated as a part of a pleading or made to avoid some question arising on the pleadings.” (Lloyd v. R. S. M. Corp., 251 N. Y. 318, 320.) They do not relate to matters oral or written which might be competent as evidence at the trial but which might be met by other evidence thus depriving them of their conclusiveness and creating an issue of fact with respect thereto (Lefler v. Clark, 247 App. Div. 402).

Here, Special Term was correct in its conclusion that “ a deposition is not a pleading ” but is “ the testimony of a witness reduced to writing, to be used as evidence on the trial to establish a fact.” And, tested by the above formula a deposition is not an “ admission ”. However, it does not follow, as Special Term held, that the motion may not be treated as one for judgment on the pleadings because “it is predicated not alone on the pleadings, but is sought to be buttressed by an examination of the plaintiffs before trial.” For the purpose of the motion for judgment on the pleadings the examination before trial is not to be considered, the question to be answered being whether the pleadings and bill of particulars raise issues of fact.

The plaintiffs rely largely upon the doctrine of the law of the case by reason of the fact that in 1948 there was a denial at Special Term of a motion under rule 106 to dismiss the complaint for insufficiency, and that no appeal was ever taken therefrom. The denial of that motion merely signified that the court considered that the complaint alleged a valid cause of action against defendants and, in any event, would not justify the invocation of the doctrine of the law of the case in this court (see Cohen and Karger, Powers of the New York Court of Appeals, § 79, pp. 344-346). Moreover, the defense of the Statute of Frauds would not be considered on a motion under rule 106 since the facts set up in defenses are. considered as controverted under section 243 of the Civil Practice Act. (See 3 Carmody on New York Practice, pp. 2288-2291; Stevenson v. News Syndicate Co., 302 N. Y. 81, 88, supra; Lipkind v. Ward, 256 App. Div. 74.) We now reach the question of the validity of the defense of the Statute of Frauds because of the admission in plaintiffs’ bill of particulars that the agreement in question was oral. (See Stevenson v. News Syndicate Co., supra, pp. 81, 88; Russell v. Societe Anonyme des Etablissements Aeroxon, 268 N. Y. 173).

Therefore, if judgment on the pleadings is to be denied it must be on the ground that the complaint and bill of particulars allege part performance which may be considered sufficient to render the Statute of Frauds inoperative. We disregard the deposition and affidavits for the purpose of the motion for judgment on the pleadings.

The alleged part performance consists of: (1) plaintiffs’ purchase of two buildings from third persons; (2) their obtaining from tenants the possession of eight apartments in one of those buildings; (3) their hiring of an architect to draw plans for the construction of the garden project, and (4) their consulting with their attorneys relative to the preparation of formal grants. As earlier mentioned, the bill of particulars states that in addition to the above acts, ivhich are set forth in the complaint, the plaintiffs have caused the name Carnegie Hill Gardens ” to be registered as a trade name in reliance upon the agreement.

The rule as to what manner of part performance will justify enforcement by a court of equity of a contract involving an interest in realty, although there is no writing as required by the Statute of Frauds, is stated as follows in Burns v. McCormick (233 N. Y. 230, 232, Cardozo, J.): There must be performance ‘ unequivocally referable ’ to the agreement, performance which alone and without the aid of words of promise is unintelligible or at least extraordinary unless as an incident of ownership, assured, if not existing. 1 An act which admits of explanation without reference to the alleged oral contract or a contract of the same general nature and purpose is not, in general, admitted to constitute a part performance ’ {Woolley v. Stetoart, 222 1ST. Y. 347, 351). What is done must itself supply the key to what is promised. It is not enough that what is promised may give significance to what is done.”

In the Burns case (supra) plaintiffs sold their business, moved to the home of the decedent and cared for him until his death in reliance upon an alleged oral promise by Mm that his property would be theirs upon his death. Such performance was held not to be “ unequivocally referable ’ ” to the agreement alleged and specific performance was denied.

To the same effect are George v. Dobson (261 App. Div. 447, affd. 287 N. Y. 675); Kezer v. Seely (236 N. Y. 567) ; Neverman v. Neverman (254 N. Y. 496); Rosen v. 250 West 50th St. Corp. (296 N. Y. 567). On the other hand we have held that acts of a plaintiff, when added together against the background of the circumstances portrayed in the record, were “ unequivocally referable ” to the agreement sued upon and that the plaintiff was entitled to the relief sought in Walter v. Hoffman (267 N. Y. 365) and Roberts v. Fulmer (301 N. Y. 277). Those cases demonstrate the type of part performance which is necessary to remove an oral contract from the bar of the Statute of Frauds. In cases where specific performance was granted the subject matter of the action was physically involved in the acts of part performance. That is the general rule throughout the country as to oral easements as indicated in the following statement in 58 Corpus Juris, Specific Performance (§ 229, p. 1022): “In accordance with the general rules as to the part performance of oral contracts, an oral easement or license is ordinarily sufficiently partly performed, so that it may be specifically enforced by the grantee or licensee, by the construction of works or the making of valuable improvements on the faith of the grant or agreement, together with user, or by payment of the consideration and user, or, it has been held, by mere possession and user; but on the latter point there is also authority to the contrary.” (See, also, 81 C. J. S., Specific Performance, § 61, p. 555.)

We have been referred to no authority where it has been held that an oral contract for a perpetual easement has been sufficiently performed to authorize a decree of specific performance where the suitor has not had possession, there has been no user and no improvements have been made. That is what plaintiffs ask that we hold in this case.

Assuming, however, that user, possession and improvements are not necessary to establish part performance, it may not be said that the acts here performed were “ unequivocally referable ” to the agreement sued upon and that those acts are unintelligible without the aid of the words of promise claimed by plaintiffs to have been made.

While the purchase of the two buildings, the gaining of possession of eight apartments in one of them, the hiring of an architect, the consultation with attorneys and the registering of the trade name Carnegie Hill Gardens ”, could be interpreted as part performance of the agreement alleged, nevertheless, it is by no means the only reasonable explanation of those acts, and that is the test which must be satisfied. The purchase of land and buildings in fee from third persons in a neighborhood where they (plaintiffs) had previously purchased two parcels (A and B on the diagram) supplies no key to a contract of the sort here claimed. The removal of tenants in the 96th Street building is equally ambiguous or meaningless. The hiring of the architect and attorneys by plaintiffs are acts of a type which generally precede rather than follow the formulation of an agreement such as plaintiffs sue upon. The same may be said of the act of registering a trade name. Furthermore, all of the acts were unilaterally performed, are of a self-serving character and open the door to perjury, the very thing the Statute of Frauds was enacted to prevent. “ Inadequacy of legal remedies, without more, does not dispense with the requirement that acts, and not words, shall supply the framework of the promise. That requirement has its origin in something more than an arbitrary preference of one form over others. It is ‘ intended to prevent a recurrence of the mischief ’ which the statute would suppress (Maddison v. Alderson, supra, at p. 478). The peril of perjury and error is latent in the spoken promise. Such, at least, is the warning of the statute, the estimate of policy that finds expression in its mandate. Equity, in assuming what is in substance a dispensing power, does not treat the statute as irrelevant, nor ignore the Avarning altogether. It declines to act on words, though the legal remedy is imperfect, unless the words are confirmed and illuminated by deeds. A power of dispensation, departing from the letter in supposed adherence to the spirit, involves an assumption of jurisdiction easily abused, and justified only Avithin the limits imposed by history and precedent. The power is not exercised unless the policy of the law is saved (Pound, Equity and the Statute of Frauds, 33 Harvard Law Review, 933, 944).” (Burns v. McCormick, 233 N. Y. 230, 234-235, supra.) Taken together the above acts are explainable as preliminary steps which contemplate the formulation, in the future, of an agreement.

On the basis of the foregoing, the corporate defendants were entitled to judgment on the pleadings as to the first cause of action.

In order for plaintiffs to recover on the second cause of action for breach of warranty of authority they must show that the agreement alleged would have been enforcible against the principal had it been authorized. Since the agreement is unenforcible by reason of the bar of the Statute of Frauds there is no basis for the recovery of damages against the individual defendants (see 3 C. J. S., Agency, § 212, p. 118) and those defendants were entitled to judgment on the pleadings.

Since defendants are entitled to judgment on the pleadings it is unnecessary to determine whether they are also entitled to summary judgment.

The orders appealed from should be reversed, and the motion for judgment on the pleadings granted, with costs in all courts. The questions certified are answered in the negative.

Lewis, Ch. J., Desmond, Dye, Ftjld and Fboessel, JJ., concur; Loughban, Ch. J., deceased.

Orders reversed, etc.


source: Caselaw Access Project

author: Lewis, Ch. J. Fuld, J.

license: Public Domain

text:
    The People of the State of New York, Respondent, v. Peter A. Cocco, Appellant.
    Argued March 6, 1953;
    decided May 28, 1953.

      Joseph Speranza and Thomas J. McKenna for appellant.
    I. The court erred in disallowing defendant’s demurrer to the indictment. (People v. Farson, 244 N. Y. 413; People v. Zambounis, 251 N. Y. 94; People v. Cox, 286 N. Y. 137; People v. Parkinson, 43 N. Y. S. 2d 690; People v. Robertson, 201 App. Div. 869, 235 N. Y. 548.) II. The facts from which the inference of appellant’s guilt was drawn were not established with certainty, were inconsistent with his innocence and failed to exclude to a moral certainty every other reasonable hypothesis. (People v. Dukatt, 298 N. Y. 545; People v. Bearden, 290 N. Y. 478; People v. Buchalter, 289 N. Y. 181; People v. Elmore, 277 N. Y. 397; People v. Leavitt, 301 N. Y. 113; People v. Ledwon, 153 N. Y. 10; People v. Lewis, 275 N. Y. 33.) III. The court erred in amending the indictment on its own motion from grand larceny in the first degree to grand larceny in the second degree and the court erred in not granting the motion on behalf of defendant for a dismissal of the indictment at the close of the People’s case. (People v. Grout, 91 Misc. 451; Ex Parte Bain, 121 U. S. 1; People v. Motello, 142 N. Y. S. 622; People v. Bromwich, 200 N. Y. 385; People v. Geyer, 196 N. Y. 364; People ex rel. Battista v. Christian, 249 N. Y. 314.) TV. It is respectfully requested that the Court of Appeals order the District Attorney’s office to produce to this court for its inspection and examination the minutes of the Grand Jury in this ease. V. The court erred in refusing defendant’s request for a new trial after the court had learned that the alternate juror in the case had communicated with a member of the jury after the jury had begun its deliberations. (People v. Hartnett, 124 Misc. 418; People v. Kendricks, 273 App. Div. 998, 300 N. Y. 544; People v. Brown, 193 App. Div. 203; People v. Hartung, 17 How. Prac. 85; People v. Sprague, 217 N. Y. 373; People v. Birnbaum, 114 App. Div. 480.)

      Jack E. Gellman, District Attorney (William H. Earl of counsel), for respondent. I.
    The indictment was sufficient and proper. (People v. Devinny, 227 N. Y. 397; Commonwealth v. Pray, 13 Pick. [Mass.] 359; People v. Cox, 286 N. Y. 137; Tuttle v. People, 36 N. Y. 431; Tully v. People, 67 N. Y. 15; People v. Cashdollar, 188 App. Div. 9; People v. Daghita, 301 N. Y. 223.) II. The evidence adduced on the trial established the guilt of defendant beyond a reasonable doubt and with moral certainty excluded any hypothesis of innocence. (People v. Giordano, 213 N. Y. 575; People v. Harris, 136 N. Y. 423.) III. The court had the power to amend the indictment from grand larceny, first degree, to grand larceny, second degree. (People ex. Poulos v. McDonnell, 302 N. Y. 89.) IV. The trial court properly denied defendant’s motion for an inspection of the minutes of the Grand Jury and the determination is not appealable. (People ex rel. Hirschberg v. Supreme Court, 269 N. Y. 392; People v. Ewald, 144 Misc. 657; People v. Guenther, 65 Misc. 150; People v. May, 158 Misc. 488; People v. Jakeway, 88 Misc. 124; Matter of Montgomery, 126 App. Div. 72, 193 N. Y. 659; Matter of Martin, 170 Misc. 919; People ex rel. Martin v. Brady, 168 App. Div. 108; People v. Kramer, 151 Misc. 210.) V. The denial of defendant’s request for a new trial after disclosure that the discharged alternate juror had attempted to communicate with a member of the jury was proper. (People v. Sprague, 217 N. Y. 373; People
      v. Caputalo, 138 Misc. 344; People v. Lubin, 190 App. Div. 339, 229 N. Y. 601; People v. Brown, 193 App. Div. 203; People v. Birnbaum, 114 App. Div. 480.)
   Lewis, Ch. J.

The defendant stands convicted by a County Court jury of Niagara County of grand larceny in the second degree.

Following rendition of the jury’s verdict, counsel for the defendant applied by motion in County Court for an order setting aside the verdict against him and for a new trial. Among grounds asserted in support of that motion was misconduct by jurors (Code Crim. Pro., § 465, subds. 2, 3), the defendant’s claim being that his rights were prejudiced by the occurrence presently to be described. That motion was denied by the County Court. Thereafter, upon appeal by the defendant to the Appellate Division, that court by its order withheld its determination and granted leave to the defendant to renew the motion for a new trial solely on the ground of misconduct of jurors, so that the Niagara County Court may hold a hearing on that phase of the motion and render a decision thereon.” (279 App. Div. 1129.) Upon the defendant’s renewal in County Court of his motion for a new trial, thus limited in scope, and the subsequent denial of that motion, the Appellate Division, by the order now before us, after reviewing the original record of the trial and a supplemental record containing proceedings had and testimony taken in County Court at the hearing held upon defendant’s renewal of his motion for a new trial, affirmed the judgment of conviction and denied defendant’s motion for a new trial.

As to facts of record which relate themselves to the problem presented: At the outset of the trial the County Judge, in the exercise of the discretion vested in him by section 358-a of the Code of Criminal Procedure, directed that an alternate juror be selected. In accord with that direction Kenneth Huntsman was chosen as an alternate juror and, being seated with the regular panel during the eight days of trial which followed, he was required by statute to “ * * * obey the orders of and be bound by the admonition of the court upon each adjournment * * (§ 358-a, id.) It was not until the late afternoon of the last day of the trial — when the case was finally submitted to the jury — that alternate juror Huntsman was discharged by the court. The jury’s verdict was not rendered until an early morning hour of the following day. Meantime, during their deliberation, there came a time when the members of the jury left the courthouse in the custody of court officers and proceeded to a local hotel for dinner. As they walked double file toward the hotel dining room they passed in front of and within a few feet from the former alternate juror Huntsman who was seated in the lobby. As the double line of jurors passed Huntsman they “ nodded to him ” and he answered their Hellos ”. None of the jurors conversed with him until Mrs. Bicker — one of two jurors at the rear of the line — was about to pass him. When she was in front of his chair Huntsman, by a backward motion ” of his head beckoned to ” her. Having paused momentarily in response to Huntsman’s gesture, Mrs. Bicker bent over to hear what he had to say, his statement to her in a “ lowered voice ” being — I just heard Coceo [the defendant] runs a sporting house on West Avenue.” To that statement Mrs. Bicker replied, I don’t believe it ” and proceeded at once into the dining room.

During the deliberations of the jury the County Judge and prosecutor learned of the Huntsman-Bicker incident above described, but defendant’s counsel were not informed of it by Judge or prosecutor. It was not until much later, and after the verdict had come in, that one of defendant’s attorneys learned about it from another source. Meanwhile, and after the jury’s verdict had been received, the County Judge had taken from Mrs. Bicker, in the presence of the prosecutor, a statement about the occurrence, but defendant’s counsel were not notified of this proceeding and were not present thereat.

The dire reflection upon the character of the defendant was made by Huntsman to one of six women jurors in the panel who were then sitting in judgment on the case; it was made by the erstwhile alternate juror who had sat for eight trial days throughout the taking of evidence and thus knew that the defendant had put his character in issue by being sworn as a witness in his own behalf and that he — as a defense measure — had called witnesses who had testified that his character was good; it was made in the course of a brief conversation between two members of the jury panel — one a regular juror, the other a discharged alternate — each of whom, on twenty-six occasions during the trial, had heard the court give the admonition required by section 415 of the Code of Criminal Procedure and had repeatedly heard from the court the further admonition — “If anybody should attempt to discuss the matter with you at all you should immediately communicate that fact to the Court and let me know if anyone does attempt to discuss it with you.”

Although Mrs. Bicker expressed to Huntsman her disbelief in the statement he had made to her and subsequently stated under oath that she had put out of her mind whatever he had said and that she had not mentioned to the jury or commented upon her conversation had with Huntsman, and although it appears from her affidavit that the statement made by him had no part whatever in the deliberations of the jury, we cannot say, in the circumstances disclosed by this record, that the furtive hearsay statement concededly made by Huntsman to a member of the jury, while that body was considering issues of fact submitted for its determination — including the defendant’s character— did not prejudice defendant’s substantial rights.

The judgments should be reversed and a new trial ordered.

Fuld, J.

(dissenting). What Huntsman, the discharged alternate juror, did was, of course, wrong, but equally clear is it that the jurywoman, Mrs. Bicker, in no way acted improperly. However, even if we were to regard as misconduct her failure to report to the trial judge Huntsman’s remark, the statute empowers the court to grant a new trial when the jury has been “ guilty of any misconduct ”, only where the defendant’s “ substantial rights have been prejudiced,” and only where such misconduct has “ prevented ” a “ fair and due consideration of the case ” (Code Grim. Pro., § 465, subd. 3). Study of the record before us is not only convincing, but truly conclusive, that no happening here prevented such an appraisal.

It was established as clearly and definitively as was humanly possible that the juror did not believe what Huntsman told her, that his comment made no impression whatsoever upon her, that she dismissed it from mind, did not mention it to any other juror and was not in the slightest influenced by it. Moreover — and it is of particular significance — the trial judge and a

unanimous Appellate Division, denying the new trial application, found those to be the facts. That being the state of the record, I fail to see how this court may say, as a matter of law, that the facts are precisely the opposite and conclude that defendant was prejudiced. And, since Mrs. Ricker’s vote was not induced or affected by Huntsman’s comment, whether or not that incident should have been handled differently by district attorney or trial judge — and I do not believe that it should have been — is of no moment. As a matter of fact, to have questioned or admonished the jurors about the matter before rendition of the verdict would only have called attention to, and emphasized, something about which none except Mrs. Ricker knew anything at all.

An accused has his rights, and they must not be relaxed, but the state has its rights too. It is for the courts “ to keep the balance true.” (Snyder v. Massachusetts, 291 U. S. 97, 122.) Where, as in the case before us, guilt has been proved to the hilt and the asserted misconduct had not the slightest influence upon any juror, no right of the defendant was prejudiced and there is no warrant for the grant of a new trial.

The judgment should be affirmed.

Conway, Desmond and Dye, JJ., concur with Lewis, Ch. J.; Fuld, J., dissents in opinion in which Froessel, J., concurs; Loughran, Ch. J., deceased.

Judgments reversed, etc.


author: Conway, J. Desmond, J.

text:
    Milton H. Rubin, Appellant, v. Irving Trust Company, as Executor of Harold Rubin, Deceased, et al., Respondents.
    Argued February 24, 1953;
    decided May 28, 1953.

      Simon H. Rifkind, Martin Kleinbard, Edward N. Costikyan and George B. Gelman for appellant.
    I. The law of Florida governs the validity of the agreement. (Youssoupoff v. Widener, 246 N. Y. 174; Matter of Gantt [Hurtado & Cia.], 297 N. Y. 433; Swift & Co. v. Bankers Trust Co., 280 N. Y. 135; Union Nat. Bank of Chicago v. Chapman, 169 N. Y. 538; Goetschius v. Brightman, 245 N. Y. 186; Fisher v. Fisher, 250 N. Y. 313; Benton v. Safe Deposit Bank of Pottsville, 255 N. Y. 260; United States Mtge. & Trust Co. v. Ruggies, 258 N. Y. 32; Bitterman v. Schulman, 265 App. Div. 486; Scudder v. Union National Bank, 91 U. S. 406; Hartford Ind. Co. v. Delta Co., 292 U. S. 143; New York Life Ins. Co. v. Dodge, 246 U. S. 357; Home Ins. Co. v. Dick, 281 U. S. 397; Order of Travelers v. Wolfe, 331 U. S. 586; Van Voorhis v. Brintnall, 86 N. Y. 18; Weissman v. Banque De Bruxelles, 254 N. Y. 488; Moultrie v. Hunt, 23 N. Y. 394.) II. The New York Statute of Frauds does not bar enforcement of the agreement in New York. (Hartford Ind. Co. v. Delta Co., 292 U. S. 143; Matter of Marchant v. Mead-Morrison Mfg. Co., 252 N. Y. 284; Fisher v. Fisher, 250 N. Y. 313; Goetschius v. Brightman, 245 N. Y. 186; Western Mass. Mut. Fire Ins. Co. v. Hilton, 42 App. Div. 52; Houghtaling v. Ball & Chapin, 19 Mo. 84, 20 Mo. 563; Canale & Co. v. Pauly & Pauly Cheese Co., 155 Wis. 541; Oakes v. Chicago Fire Brick Co., 388 Ill. 474; Miller v. Wilson, 146 Ill. 523; Halloran v. Schmidt Brewing Co., 137 Minn. 141; Russell v. Societe Anonyme des Etablissements Aeroxon, 268 N. Y. 173; Wilson v. Lewiston Mill Co.,
      150 N. Y. 314; Goldstein v. Scott, 76 App. Div. 78.) III. New York public policy does not preclude enforcement of the agreement in New York. (Broderick v. Rosner, 294 U. S. 629; Hughes v. Fetter, 341 U. S. 609; Loucks v. Standard Oil Co., 224 N. Y. 99; Crane v. Powell, 139 N. Y. 379; Matthews v. Matthews, 154 N. Y. 288; Wilcox Silver Plate Co. v. Green, 9 Hun 347, 72 N. Y. 17; Marie v. Garrison, 13 Abb. N. C. 210; Emery v. Burbank, 163 Mass. 326; Herzog v. Stern, 264 N. Y. 379; Johnson v. Mutual Life Ins. Co., 180 Mass. 407; Henning v. Hill, 80 Ind. App. 363; Canale & Co. v. Pauly & Pauly Cheese Co., 155 Wis. 541; Lams v. Smith, 36 Del. 477; Oakes v. Chicago Fire Brick Co., 388 Ill. 474; Halloran v. Schmidt Brewing Co., 137 Minn. 141.) IV. The issue of decedent’s domicile cannot be decided on a motion for summary judgment. (Matter of Blankford, 241 N. Y. 180; Matter of Harkness, 183 App. Div. 396; Matter of Bourne, 181 Misc. 238; Curry v. Mackenzie, 239 N. Y. 267; Piedmont Hotel Co. v. Nettleton Co., 263 N. Y. 25; Schulman v. Cornman, 221 App. Div. 170; Cromwell v. County of Sac, 94 U. S. 351; Marine Tr. Corp. v. Switzerland Gen. Ins. Co., 263 N. Y. 139; Cuyler Realty Co. v. Teneo Co., 196 App. Div. 440, 233 N. Y. 647; Bolton v. Schriever, 135 N. Y. 65; Flatauer v. Loser, 211 N. Y. 15; Matter of Schell, 272 App. Div. 210.) V. Section 85 of the New York Personal Property Law is inapplicable. (Invincible Parlor Frame Co. v. Elegant Leather Goods, 187 Misc. 454, 272 App. Div. 795; McKeon v. Van Slyck, 223 N. Y. 392; Grundt v. Shenk, 222 App. Div. 82, 248 N. Y. 602; Hammond v. Hammond, 264 App. Div. 322; Ralph v. Cronk, 266 N. Y. 428; Hieronymus v. Voges, 276 App. Div. 1096; Doyle v. Gleason, 152 Misc. 641, 244 App. Div. 52.) VI. Special Term correctly held that whether or not appellant is estopped is a question of fact. (Oliver v. Wells, 254 N. Y. 451; Beetson v. Stoops, 186 N. Y. 456; Lee v. Tower, 124 N. Y. 370; Newcomb v. La Roe, 160 App. Div. 819, 218 N. Y. 682; Matter of Campbell, 171 Misc. 750, 261 App. Div. 899.)

      James N. Vaughan for Irving Trust Company and another, respondents.
    I. The oral testamentary promise made in Florida by decedent in 1940 cannot be enforced in New York because it contravenes our Statute of Frauds. II. The question whether the New York Statute of Frauds applies to a contract made in a foreign State has not been decided by the Court of Appeals. (Reilly v. Steinhart, 217 N. Y. 549; Franklin Sugar Refining Co. v. Lipowicz, 220 App. Div. 160, 247 N. Y. 465; Russell v. Societe Anonyme des Etablissements Aeroxon, 268 N. Y. 173.) III. In England the Statute of Frauds, from which our own statute is essentially derived, is settled to be procedural and not substantive in a conflict of laws case. (Watson v. Wharam, 2 T. R. 80,100 E. R. 44; Chater v. Beckett, 7 T. R. 201,101 E. R. 931; Carrington v. Roots, 2 M. & W. 284, 150 E. R. 748; Leroux v. Brown, 12 C. B. 801, 138 E. R. 1119.) IV. The New York Statute of Frauds, now to be found in sections 31 and 85 of the Personal Property Law, section 113 of the Decedent Estate Law, and sections 242 and 259 of the Real Property Law, was taken from the English statute and is intrinsically procedural, evidentiary and remedial in nature. (Shindler v. Houston, 1 N. Y. 261; Dykers v. Townsend, 24 N. Y. 57; Justice v. Lang, 42 N. Y. 493; Dung v. Parker, 52 N. Y. 494; Argus Co. v. Mayor of City of Albany, 55 N. Y. 495; Crane v. Powell, 139 N. Y. 379; Hutchins v. Van Vechten, 140 N. Y. 115; Matthews v. Matthews, 154 N. Y. 288.) V. No well-considered decision favorable to a substantive view of our Statute of Frauds, is contained in the reports of this State. VI. The law of the forum governs matters of remedy, procedure and evidence. Since the New York Statute of Frauds is remedial, procedural and evidentiary and makes no contract illegal, it is applicable in the present case. (Matter of Gantt [Hurtado & Cia.], 297 N. Y. 433; Reilly v. Steinhart, 217 N. Y. 549; Pritchard v. Norton, 106 U. S. 124.) VII. Learned writers on the question of whether the Statute of Frauds goes to the remedy and evidence and procedure, rather than to substance, on the whole favor the determination that the statute is of the former character. VIII. Appellant provides no convincing reason to support his claim that the New York Statute of Frauds is substantive. IS. Emery v. Burbank (163 Mass. 326), the principal case factually in point, should be approved and its principle assimilated to the law of New York.

      Henry I. Fillman, respondent in person.
    I. In view of the decisions in Bayreuther v. Reinisch (264 App. Div. 138, affd. 290 N. Y. 553) and Matter of Levin (276 App. Div. 739, 277 App. Div. 758, affd. 302 N. Y. 535), it is the unquestioned public policy of this State “ to outlaw ” an oral claim such as forms the basis of plaintiff’s action. (Glaser v. Glaser, 276 N. Y. 296; Burns v. McCormick, 233 N. Y. 230; Matter of Block, 258 App. Div. 342; Matter of Douglas, 169 Misc. 716.) II. Assuming for the discussion, but without conceding, that the alleged agreement was made in Florida on April 8, 1940, and is valid there, nevertheless, since it runs counter to the public policy of New York, it will not be enforced by New York courts. (Rousillon v. Rousillon, 14 Ch. D. 351; Bond v. Hume, 243 U. S. 15; Straus & Co. v. Canadian Pacific Ry. Co., 254 N. Y. 407; Dickinson v. Edwards, 77 N. Y. 573; Emery v. Burbank, 163 Mass. 326; Johnson v. Mutual Life Ins. Co., 180 Mass. 407; Loucks v. Standard Oil Co., 224 N. Y. 99.) III. Since the alleged agreement is in legal effect one for the sale of shares of stock far exceeding $50 in value, section 85 of the Personal Property Law adopted from section 4 of the English Sale of Goods Act, which has been construed by the English authorities as dealing with remedies and a part of the lex fori, prevents the New York courts from enforcing the agreement. (Burns v. McCormick, 233 N. Y. 230; Canute v. Minor, 232 App. Div. 325, 258 N. Y. 558; Parsell v. Stryker, 41 N. Y. 480; Hamilton v. Thirston, 93 Md. 213; Maloney v. Maloney, 258 Ky. 567; Agar v. Orda, 144 Misc. 149, 239 App. Div. 827, 264 N. Y. 248; Morris v. Baron & Co., [1918] A. C. 1; Sampson v. Pels Co., 199 App. Div. 854; 300 West End Ave. Corp. v. Warner, 250 N. Y. 221; Manufacturer’s Light & Heat Co. v. Lamp, 269 Pa. 517.) IV. Since plaintiff exercised the option granted him by the will to purchase from the executor all of decedent’s shares of American Silk Mills, Inc., plaintiff not only consented to the last will but is also estopped from maintaining his action for specific performance. (Garrison v. Marie, 7 N. Y. Civ. Pro. Rep. 113; Beetson v. Stoops, 186 N. Y. 456; Havens v. Sackett, 15 N. Y. 365; Oliver v. Wells, 254 N. Y. 451; Myers v. Ross, 10 F. Supp. 409; Burns v. First Nat. Bank of Joliet, 304 Ill. 292; Lloyd v. State Treasurer, 401 Ill. 520; Genet v. Delaware & Hudson Canal Co., 170 N. Y. 278; Svenska Taendsticks Fabrik Aktiebolaget v. Bankers Trust Co., 268 N. Y. 73.) V. Plaintiff’s contention that his so-called performance takes the alleged agreement out of the Statute of Frauds is not supported by the authorities. (Burns v. McCormick, 233 N. Y. 230; Sackheim v. Berger, 273 App. Div. 873; Invincible Parlor Frame Co. v. Elegant Leather Goods, 187 Misc. 454, 272 App. Div. 795; Bayreuther v. Reinisch, 264 App. Div. 138, 290 N. Y. 553; Meltzer v. Koenigsberg, 99 N. Y. S. 2d 143, 277 App. Div. 1050, 302 N. Y. 523.) VI. No issue of fact as to decedent’s New York domicile was raised. (Irving Trust Co. v. Orvis, 139 Misc. 670; Engl v. Ætna Life Ins. Co., 139 F. 2d 469.)

      Robert Szold and Milton Altman for Rita R. Lowe and others, respondents.
    I. The courts of New York will not enforce an oral promise to bequeath made by a New York domiciliary. They will apply New York law. (Bolton v. Schriever, 135 N. Y. 65.) II. Emery v. Burbank (163 Mass. 326), squarely in point, correctly sets forth the predominant interest of the domiciliary State in the case of an oral promise to make a testamentary provision. (Levi v. Murrell, 63 F. 2d 670, 290 U. S. 638; Ohlendiek v. Schuler, 30 F. 2d 5; Buck v. Meyer, 195 Mo. App. 287.) III. That the law of the last domicile governs the disposition of decedents’ estates is a general principle of law universally established. (Moultrie v. Blunt, 23 N. Y. 394; Matter of Gifford, 279 N. Y. 470.) IV. Domicile constitutes a fundamental rule. (Baker v. Baker Eccles & Company, 242 U. S. 394; Bishop v. Bishop, 257 N. Y. 40.) V. The issue herein relates to the disposition of a New York estate. Therefore, subdivision 7 of section 31 of the Personal Property Law of New York must be applied. (Matter of Ditson, 177 Misc. 648; Caruth v. Caruth,. 128 Iowa 121.) VI. The rule prescribed in subdivision 7 for devolution of property should not be whittled away. (Matter of Van Slooten v. Wheeler, 140 N. Y. 624; Rosseau v. Rouss, 180 N. Y. 116; Bayreuther v. Reinisch, 264 App. Div. 138, 290 N. Y. 553.) VII. Plaintiff’s arguments are without merit. VIII. The court below was correct in holding that, as a matter of law, decedent was domiciled in New York. IX. The question of decedent’s domicile relates to the date of death. X. The probate in the Surrogate’s Court constitutes a conclusive finding of fact that decedent died domiciled in New York. (Kennedy v. Ryall, 67 N. Y. 379; Matter of Daggett, 255 N. Y. 243; Matter of Gifford, 279 N. Y. 470; Bolton v. Schriever, 135 N. Y. 65; O’Donoghue v. Boies, 159 N. Y. 87; Flatauer v. Loser, 211 N. Y. 15; Matter of Schell, 272 App. Div. 210; Lapiedra v. American Sur. Co., 247 N. Y. 25; O’Connor v. Huggins, 113 N. Y. 511; Bumstead v. Read, 31 Barb. 661; Matter of Hernandez, 172 App. Div. 467; Matter of Gardner, 260 App. Div. 132; Cromwell v. County of Sac, 94 U. S. 351; Marine Tr. Corp. v. Switzerland Gen. Ins. Co., 263 N. Y. 139; Reich v. Cochran, 151 N. Y. 122; Fairview-Chase Corp. v. Scharf, 254 N. Y. 55; Brown v. Mayor of City of N. Y., 66 N. Y. 385; Last Chance Min. Co. v. Tyler Min. Co., 157 U. S. 683.) XI. The allegations in the complaint that decedent died a resident of the county and State of New York and that letters testamentary under decedent’s will were granted by the New York County Surrogate’s Court are binding upon plaintiff. XII. Substantial New York State estate taxes were paid by the executor on the basis that decedent was a New York domiciliary. Plaintiff is estopped to assert the contrary. (Matter of Trowbridge, 266 N. Y. 283.) XIII. On all the facts and taking as true all allegations in plaintiff’s affidavit, only one legal result is permissible, i.e., decedent was domiciled in New York. (Matter of Trowbridge, 266 N. Y. 283; Matter of Blankford, 241 N. Y. 180; Texas v. Florida, 306 U. S. 398; Matter of Newcomb, 192 N. Y. 238; Dupuy v. Wurtz, 53 N. Y. 556; Isham v. Gibbons, 1 Bradf. 69.) XIV. Testator was domiciled in New York on April 8, 1940, as well as at the date of death. (Emery v. Burbank, 163 Mass. 326.) XV. New York law must be applied to the contract. (Jones v. Metropolitan Life Ins. Co., 158 Misc. 466; Zwirn v. Galento, 288 N. Y. 428; Hall v. Cordell, 142 U. S. 116; Seeman v. Phila. Warehouse Co., 274 U. S. 403; Hoopeston Canning Co. v. Pink, 288 N. Y. 291, 318 U. S. 313; Wilson v. Lewiston Mill Co., 150 N. Y. 314; Jansson v. Swedish American Line, 185 F. 2d 212; Barber Co. v. Hughes, 223 Ind. 570; Bayreuther v. Reinisch, 264 App. Div. 138, 290 N. Y. 553.)
   Conway, J.

There is presented for our decision the question whether an oral contract not to alter a will made in Florida, where it is alleged the contract was a valid one, is enforcible in this State despite the fact that if made here it would be violative of section 31 of the Personal Property Law.

The complaint alleges in substance that testator executed a will in October, 1938, bequeathing’ to plaintiff, his brother, shares of stock in a New Jersey “ family ” corporation; that in April, 194.0, plaintiff and testator entered into an oral contract in Florida whereby testator promised not to change his will without plaintiff’s consent in return for plaintiff’s promise to.purchase stock in the corporation held by their brother and stock held in trust for their three sisters; that under the then existing law of Florida that contract was valid and enforcible; that plaintiff purchased the stock as agreed; that testator, with plaintiff’s consent, executed a new will and a codicil thereto in 1940 bequeathing to plaintiff the bulk of his stock upon condition that certain payments be made out of that bequest; that in 1946 and without plaintiff’s consent testator executed a new will leaving the bulk of his stock to persons other than plaintiff with instructions to his executor to sell the stock to plaintiff upon receipt from him of a reasonable offer; that in 1947 and without plaintiff’s consent testator executed a new will bequeathing all his stock to persons other than plaintiff with similar instructions to his executor with reference to a sale of the stock to plaintiff.

It is further alleged that testator died a resident of the county of New York and possessed of the stock; that letters testamentary have been issued by the Surrogate’s Court of New York County to the defendant trust company as executor under the will last mentioned, and that there exists no adequate remedy at law. Plaintiff prays for judgment directing specific performance of the oral contract and for other relief.

The defendant executor interposed an answer alleging that testator was a New York domiciliary from the time when the contract is alleged to have been made until his death in 1949; that the oral agreement is void by reason of section 31 of the Personal Property Law since it is a contract to bequeath or to make a testamentary disposition, was not to be performed within one year nor before the end of a lifetime and, further, that by delay in asserting this claim and by reason of his offer to purchase the stock from the executor in accordance with the provisions of the will admitted to probate plaintiff is barred from recovery.

Defendants ’ motions for summary judgment pursuant to rule 113 of the Rules of Civil Practice were denied at Special Term. The Appellate Division reversed, the majority being of the opinion that subdivision 7 of section 31 of the Personal Property Law proclaims a public policy of this State with respect to contracts made by New York domiciliarles and therefore applies to contracts by such persons wherever made.

Subdivision 7 of section 31 of the Personal Property Law provides:

“ § 31. Agreements required to be in writing. Every agreement, promise or undertaking is void, unless it or some note or memorandum thereof be in writing, and subscribed by the party to be charged therewith, or by his lawful agent, if such agreement, promise or undertaking; * * *
7. Is a contract to bequeath property or make a testamentary provision of any kind; * * V’

For the purposes of that statute there can be no difference between a contract to bequeath property or make a testamentary provision ” and a contract to refrain from altering an existing will, for wills are ineffective until the death of the testator. (See Matter of Levin, 302 N. Y. 535.)

We shall consider first the applicability of our Statute of Frauds to the contract in question.

Whether or not an oral contract, valid and enforcible in the jurisdiction where made, is subject to the Statute of Frauds of a jurisdiction where an action is brought upon the contract is a problem not yet settled in this State. It has been the subject of much debate by the commentators and the decisions on the point are in “ irreconcilable conflict ”. (2 Wharton, Conflict of Laws [3d ed.], p. 1454.) This court has recognized the existence of the problem and the conflict of authority but has thus far found it unnecessary to resolve it. (Reilly v. Steinhart, 217 N. Y. 549, 553; Franklin Sugar Refining Co. v. Lipowicz, 247 N. Y. 465, 469-471; Russell v. Societe Anonyme des Etablissements Aeroxon, 268 N. Y. 173, 180-181.)

In the case last cited we said per Crane, Ch. J. (p. 181): Most of the authorities arrive at their conclusion as to the law applicable, i.e., lex loci or lex fori, by first determining whether the statute is substantive or procedural and evidentiary. If it is substantive then the law of the place of contracting applies, and though the forum has its own Statute of Frauds, the latter would not be applicable. If it is procedural or evidentiary then the law of the forum applies though the contract was valid and enforceable where made. * * * ” In the Franklin case (supra, pp. 469-470) the characterization of the statute as substantive or as procedural was recognized as being determinative of the problem. But the principle, concerned as it is with nebulous legal conclusions, does little more than restate the problem.

However, as we view the case, we need not decide whether the statute is substantive or procedural. If it be the latter, there is no problem for the law of the forum surely would apply. If it be the former, we must conclude that it is expressive of a deeply rooted policy of the forum with respect to the bequeathing of property or making testamentary provisions by its domiciliaries to which the ordinary rules of choice of law and comity must give way. (See Shannon v. Irving Trust Co., 275 N. Y. 95, 102-103; Herzog v. Stern, 264 N. Y. 379, 384-385; Straus & Co. v. Canadian Pacific Ry. Co., 254 N. Y. 407, 414; Loucks v. Standard Oil Co., 224 N. Y. 99, 110-111.) Indeed the statute may even be regarded as having a dual nature — both substantive and procedural. (See Emery v. Burbank, 163 Mass. 326, discussed infra.)

It should be realized at the outset that we are not dealing with the ordinary contract. A contract to make or to refrain from altering a will amounts for all practical purposes to a testamentary disposition. If enforcible, it is little different from a will and, as often as not, will result in the complete subversion or nullification of a will executed in accordance with the stringent requirements surrounding the making of such an instrument (Decedent Estate Law, § 21). The nature of the contract is such that actions for its enforcement are instituted after the death of the promisor and consequently the difficulty of disputing the claim is enormous. Since claims based upon such oral contracts are frequently asserted and are unusually suspect (see Hamlin v. Stevens, 177 N. Y. 39, 47-48, 50; Matter of Ditson, 177 Misc. 648, 649-650, Foley, S.) they tend to hamper the expeditious and orderly administration of estates. It is true that an action upon an ordinary contract may be maintained to enforce an obligation of a person since deceased but that is not the usual case — it occurs by chance and not because of the nature of the contract. True it is, also, that the enforcement of the ordinary oral contract against an executor, like the enforcement of the claims of any of the decedent’s creditors, affects a reduction of the assets available for distribution under a decedent’s will. But the enforcement of such claims does not entail an alteration or negation of a will as does the enforcement of a contract of the kind in question. To enforce an oral contract to make or to refrain from altering a will is to write or rewrite a will for a decedent in complete disregard of the strict and salutary requirements of the Statute of Wills (Decedent Estate Law, § 21) and the dangers of injustice are as great as those which militate against the allowance of oral wills.

The power of testamentation is “ not a natural or inherent right, but one which the state can grant or withhold in its discretion.” (Matter of Delano, 176 N. Y. 486, 491, affd. sub nom. Chanler v. Kelsey, 205 U. S. 466; and Matter of Watson, 226 N. Y. 384, 395-396, affd. sub nom. Watson v. State Comptroller, 254 U. S. 122.) No authority need be cited for the settled proposition that the law of the testator’s final domicile is the law of the will and controls the devolution of estates at least insofar as personalty is concerned. The State is vitally interested in preserving the integrity of the cherished privilege which it has conferred and of the estates of which its courts have assumed jurisdiction. It is concerned with the welfare of the decedent’s dependents (e.g., Decedent Estate Law, §§ 17,18) and creditors. The interest of the State in matters affecting the testamentary dispositions of its domiciliarles is much more than casual.

By our statutes, it is required that wills be in writing and subscribed by the testator with certain formalities therein provided. (Decedent Estate Law, § 21.) Nuncupative wills are of no effect save those made in the presence of witnesses by persons in actual military or naval service (Decedent Estate Law, §16). It is now provided that a will executed in accordance with the requirements of the place of execution or of the testator’s domicile has the same force and effect as- if executed in the manner prescribed by our laws and such a will may be admitted to probate in this State provided, however, that it be in writing and subscribed by the testator. (Decedent Estate Law, §§ 22-a, 23.)

Several things are apparent from the foregoing:

It is clear that the enforcement of oral contracts to make or refrain from altering a will is completely inconsistent with and imperils the policy of this State relating to testamentary dispositions.

It is clear, also, that in reaching our decision here we are not to be guided by the same considerations as we would in determining the applicability of our Statutes of Frauds to the ordinary or commercial contract. Considerations, otherwise of paramount importance, assume small significance here — e.g., that a contract, a bilateral thing, should be controlled by principles of law best suited to the effectuation of the expectations of both parties and that enforcibility ought not be dependent upon the voluntary and hence unpredictable movement of one party thereto. (See Youssoupoff v. Widener, 246 N. Y. 174,191.)

It is clear, too, that we are not here concerned with the ordinary Statutes of Frauds and what we now decide is not necessarily dispositive of cases arising under them since the agreement in question was related to the wish of a testator ‘ ‘ to bequeath property or make a testamentary provision of any [some] kind ”. (See 32 Yale L. J. 311, 336, 337 [The Statute of Frauds and The Conflict of Laws by Professor Lorenzen].)

In Emery v. Burbank (163 Mass. 326, supra. Holmes, J.) plaintiff and testatrix entered into an oral agreement in Maine, where both resided, testatrix undertaking to bequeath property to plaintiff in return for plaintiff’s promise to care for her and go with her to live in Massachusetts. Plaintiff performed as agreed, testatrix did not. The agreement apparently was enforcible where made but a Massachusetts statute provided that: No agreement * * * [to make a will or give a devise or legacy by will] shall be binding, unless such agreement is in writing.” The statute was held to apply. Since the case is so closely in point and the opinion well states the view to which we have come we quote from it at length (pp. 328-330): “* * * It is possible * * * that a statute should affect both validity and remedy by express words, and this being so, it is possible that words which in terms speak only of one should carry with them an implication also as to the other. * 56 *

The words of the statute before us seem * * ” to deal with the validity and form of the contract * 0 ®. If taken literally, they are not satisfied by a written memorandum of the contract; the contract itself must be made in writing. * * * But we are of opinion that the statute ought not to be limited to its operation on the form of contracts made in this State. The generality of the words alone, ‘ no agreement, ’ is not conclusive. But the statute evidently embodies a fundamental policy. The ground, of course, is the prevention of fraud and perjury, which are deemed likely to be practised without this safeguard. The nature of the contract is such that it naturally would be performed or sued upon at the domicil of the promisor. If the policy of Massachusetts makes void an oral contract of this sort made within the State, the same policy forbids that Massachusetts testators should be sued here upon stick contracts without written evidence, wherever they are made. * * °

“ The law of the testator’s domicil is the law of the will. A contract to make a will means an effectual will, and therefore a will good by the law of the domicil. In a sense, the place of performance, as well as the forum for a suit in case of breach, is the domicil. * * \T]he final domicil is more concerned in the policy to be insisted on than any other jurisdiction, and justifies it in framing its rules accordingly. There would be no question to be argued if the law were in terms a rule of evidence. It is equally open for a State to declare, upon the same considerations which dictate a rule of evidence, that a contract must have certain form if it is to be enforced against its inhabitants in its courts.” (Emphasis supplied.)

It is of some significance that our statute is more susceptible to a procedural or evidentiary characterization than that in the Emery case (supra). It is true that the declaration in subdivision 7 of section 31 of the Personal Property Law that the contract shall be void,” if taken at face value, bears a substantive connotation. But as will shortly appear the use of the word ‘ ‘ void ” may not.be regarded as at all decisive. Section 31 provides only that the contract or some note or memorandum of it, viz., evidence of a contemporaneously or even previously made agreement, must be in writing whereas the Massachusetts statute required that the contract itself be in writing which surely was more substantive or constitutive than procedural or evidentiary. From Justice Holmes’ opinion (supra) and from Wigmore on Evidence (Vol. 9, 3d ed., § 2454), it appears that the difference has been regarded as significant.

The historic background of subdivision 7 of section 31 lends some support to the view that it was. enacted in order to provide a much needed, rigid standard of proof or rule of evidence in actions upon testamentary contracts of this kind. And if it be thought that that background fails to establish the procedural character of the statute, it at least shows that it was enacted in order to effectuate, implement and supplement the policy requiring testamentary dispositions to be in writing, which undeniably is a policy imbedded in our law, and justifies us in concluding that it must be applied here.

In Hamlin v. Stevens (177 N. Y. 39, 47-48, 50, supra), Judge Vann wrote:

Contracts of the character in question have become so frequent in recent years as to cause alarm, and the courts have grown conservative as to the nature of the evidence required to establish them * * *. Such contracts are easily fabricated and hard to disprove * * *. “ * * • * Such contracts are dangerous. They threaten the security of estates and throw doubt upon the power of a man to do what he wills with his own. * * * Such contracts should be in writing, and the writing should be produced, or, if ever based upon paroi evidence, it should be given or corroborated in all substantial particulars by disinterested witnesses. Unless they are established clearly by satisfactory proofs and are equitable, specific performance should not be decreed. We wish to be emphatic * * * for we are impressed with the danger, and aim to protect the community from the spoliation of dead men’s estates by proof of such contracts through paroi evidence given by interested witnesses.”

Time and again prior to the enactment of subdivision 7 of section 31 in 1933, appellate courts found it necessary to state that the testimony in cases of this kind must be subjected to the strictest scrutiny and the claim established by the “ clearest and most convincing evidence.” (Rosseau v. Rouss, 180 N. Y. 116,121; Matter of Block, 258 App. Div. 342, 346-347, and Matter of Ditson, 177 Misc. 648, 649-650, supra, and cases cited therein.) A strict rule of proof was required and it is not unreasonable to conclude that the statute was intended to supply that need and was intended only as a rule of evidence.

The remarks of Surrogate Foley, Chairman of the Decedent Estate Commission which recommended the enactment of subdivision 7 of section 31, are worthy of note and were quoted by the majority below (New York State Bar. Assn. Bulletin, Vol 5., June, 1933, p, 284) : ‘ ‘ They [Personal Property Law, § 31 subds. 1, 7] correct/a serious omission in the law by requiring such agreements to be in writing. It seems almost incomprehensible that the law threw around the execution of the will certain strict requirements * * * and yet under the former practice it was possible for a person to assert and even establish an agreement to leave the entire estate to the promisee without a scrap of paper to evidence the agreement or obligation. Claims of this kind have been subject to severe criticism and stricture in the decisions of the Court of Appeals. These new amendments will not only prevent the bringing of an action unless the agreement is in writing, but will also abolish the present system which has led to unfounded assertions of such claims against estates in the hope of realizing a settlement, because of the delay in distribution to the real beneficiaries named in the formally executed will.”.' (See to similar effect Matter of Ditson, supra, Foley, S.)

Plaintiff urges that the statute cannot be regarded as declaring a public policy of the State since it is a matter of defense which may be waived by the failure to plead it. The fact that it must be pleaded equally supports the view that it goes not to the substance of the contract but to the mode of proving it. <£ When the statute is set up as a defense, the objection to any other mode of proof * * * is to be deemed as made in advance * * *.” (Crane v. Powell, 139 N. Y. 379, 385.) Of course, if the statute is procedural — whether or not it is expressive of our public policy —it is fatal to plaintiff’s action.

Plaintiff points to the fact that the statute declares contracts “void” whereas section 85 of the Personal Property Law provides that certain oral contracts- ‘ 1 shall not he enforceable by action ”. The implication is that if this were a statute relating to procedure the latter wording, would have been employed. But that is not determinative for this court has time and again spoken of Statutes of Frauds which declare contracts “ void ” as enunciating a rule of evidence or establishing a mode of proof. (See Argus Co. v. Mayor of City of Albany, 55 N. Y. 495, 501; Crane v. Powell, 139 N. Y. 379, 384-385, supra ; 300 West End Ave. Corp. v. Warner, 250 N. Y. 221, 226, 228; and see Wikiosco, Inc., v. Proller, 276 App. Div. 239, 240.) And we have said that such statutes do not render contracts illegal or a mere nullity ”. (McKenna v. Meehan, 248 N. Y. 206, 212; see, also, Matthews v. Matthews, 154 N. Y. 288.) These authorities are sufficient to indicate that any argument, which goes no deeper than the phraseology, to the effect that the statute in question is only substantive, is unavailing and to indicate that no violence is done by attributing to it a dual character — as suggested in Emery v. Burbank (supra), or attributing to it a character solely procedural and evidentiary.

But as indicated earlier, even if the statute be substantive solely, our policy requires that it be applied. In this respect it is suggested by plaintiff, although it is not urged at length, that the Federal due process clause may require that our policy be subordinated to the law of the place of contracting. Plaintiff quotes as follows from Hartford Ind. Co. v. Delta Co. (292 U. S. 143, 149): “ * * * A state may limit or prohibit the making of certain contracts within, its own territory * * * but it cannot extend the effect of its laws beyond its borders so as to destroy or impair the right of citizens of other states to make a contract not operative within its jurisdiction, and lawful where made. * * * Nor may it in an action based upon such a contract enlarge the obligations of the parties to accord with every local statutory policy solely upon the ground that one of the parties is its own citizen. * * * ” However, at page 150 of the opinion, it is made abundantly clear that the Supreme Court was addressing itself to efforts by a State to apply the policy of the forum so as to nullify rights lawfully vested elsewhere when the interest of the forum has but slight connection with the substance of the contract obligations.” (See, also, Griffin v. McCoach, 313 U. S. 498, 506.)

There is yet another approach to the problem which tends to dictate the same result as all the foregoing: the center of gravity ” theory of conflicts of laws, discussed by the majority below. Under that theory the law of the State which has the most significant contacts with the matter in dispute will be applied. (See Harper, Policy Bases of the Conflicts of Laws, 56 Yale L. J. 1155, 1161-1167; Vanston Committee v. Green, 329 U. S. 156,161-162; Jansson v. Swedish American Line, 185 F. 2d 212, 218-219; Jones v. Metropolitan Life Ins. Co., 158 Misc. 466, 468, 469-470.) It would seem that that approach was used to some extent by Justice Holmes in the Emery case (supra).

Here we have a promise by a New York domiciliary not to alter a will, and a claim based upon that promise against an estate being administered under the supervision of a New York court. In a sense New York is the place of performance of the contract for it called for the retention in existence of an effectual will — a will valid by the law of the testator’s domicile, New York. On the other hand, Florida’s only contact appears to be that that was the place of contracting and, that being so, there exists the possibility that the parties contracted, if indeed they did, with the law of that jurisdiction in mind. What has gone before is sufficient to demonstrate that New York’s contacts are most significant as well as more numerous.

Finally, plaintiff contends that the decision below is incompatible with the case of Shea v. Shea (294 N. Y. 909). We there held valid a common-law marriage contracted by residents of this State in a State where such marriages are valid. Section 11 of the Domestic Relations Law, which in the absence of express words was held to have no extraterritorial effect, provides: “ No marriage shall be valid unless solemnized by ” various designated civil or ecclesiastical authorities or by written contract signed by both parties and at least two witnesses.

Little need be said to indicate that vastly different legal and policy considerations were there involved. The right to contract marriage is a natural right, not a legislatively conferred privilege. Contracts of marriage valid where made are almost universally recognized elsewhere, save those which outrage our most fundamental concepts. The question was one of status — and uncertitude as to that has grave criminal and moral ramifications — e.g., the possible bastardization of issue and existence of a meretricious relationship.

There remains the question of testator’s domicile. Domicile, of course, is a question of fact and not of law (Matter of Newcomb, 192 N. Y. 238, 250; Dupuy v. Wurtz, 53 N. Y. 556, 562) unless the undisputed facts admit of but one inference (Matter of Trowbridge, 266 N. Y. 283). Upon their motion for summary judgment it was necessary for the defendants to establish prima facie, by documentary evidence or official record, the facts upon which their claim that testator died a New York domiciliary was founded. That requirement met, it was incumbent upon plaintiff to show facts, by affidavit or other proof, sufficient to raise an issue with respect to the verity and cohclusiveness of the documentary evidence or official records produced by defendants (Rules Civ. Prac., rule 113). The ultimate question is whether plaintiff has shown the existence of a triable fact issue. If the issue claimed to exist is not “ genuine, but feigned, and * * * there is in truth nothing to be tried ” summary judgment is properly granted (Curry v. Mackenzie, 239 N. Y. 267, 270).

It is conceded that testator was a New York domiciliary until 1938. Our view of the record is that plaintiff has failed to show the existence of a triable issue as to any change thereafter. The majority of the Appellate Division were of the opinion, and we are in accord with it, that “ the record is clear that [testator] traveled and sojourned elsewhere on account of his health without acquiring a new domicile, which is necessary in order to effect a change ”. (280 App. Div. 348, 354.)

The judgment appealed from should be affirmed, with costs.

Desmond, J.

(concurring). The ground for affirmance, relied upon by Judge Conway in his able opinion, is a valid and sufficient reason for that result. However, I think this court should go further and, by stating another and equally valid ground for affirmance, decide and set at rest a question of law which has been left undecided, in this State, for decades. We should not, of course, reach out, on any appeal, for questions unnecessary to decision. But the primary function of this court is to settle and state the law of this State for the information and guidance of its citizens, and, unless we do so when occasion arises, a question like this can remain unanswered forever.

The important question of law to which, as I think, we should now give answer, is this: will the courts of this State enforce an oral agreement which has been made in another State where such oral agreements are valid, but which is of a kind that, under the New York Statute of Frauds, must, for enforcibility, be in writing?

I think that our answer to that question should be ‘ ‘ no ”, and that we should declare the New York rule to be as set forth in the Restatement of Conflict of Laws (§ 602, comment a) as follows: If the statute of frauds of the forum requires a written agreement as a condition of bringing action on a contract of a certain sort, no action can be maintained on a foreign oral agreement even if it complies with the law of the place of contracting.” That rule would derive, naturally and logically, from the settled New York rule that our Statute of Frauds is not substantive but procedural, that it makes oral agreements not void but unenforcible, and that it is, therefore, a rule of evidence for the New York courts (see Justice v. Lang, 42 N. Y. 493, 500, 501; Crane v. Powell, 139 N. Y. 379, 384).

Lewis, Ch. J., Dye, Fuld and Fboessel, JJ., concur with Conway, J.; Desmond, J., concurs in separate opinion; Loughban, Ch. J., deceased.

Judgment affirmed.


text:
    Irving I. Erdheim and Robert F. Armstrong, Plaintiff and Judgment-Creditor-Respondent, v. Elizabeth K. Mabee, Judgment Debtor. City Bank Farmers Trust Company, as Cotrustee under the Will of Thomas J. Ryan, Deceased, Third-Party Appellant, et al., Third Party.
    Argued April 7, 1953;
    decided May 28, 1953.

      Benjamin Nassau and Charles Angulo for third-party appellant.
    I. The situs of the trust is in the District of Columbia. (Graybar Elec. Co. v. New Amsterdam Cas. Co., 292 N. Y. 246.) II. Exclusive jurisdiction to levy garnishee execution against trust income is vested in the State of the situs of the trust. (Commercial Credit Corp. v. Young, 258 App. Div. 323; Salm v. Krieg, 182 Misc. 721; Jenkins v. Lester, 131 Mass. 355; Everhart v. Provident Life & Trust Co., 118 Misc. 852; Taylor v. Taylor, 112 N. Y. S. 2d 590.) III. In addition to jurisdiction over the res, section 684 of the Civil Practice Act requires jurisdiction over the person or persons against whom the garnishment process is directed. (Starke v. Beckwith Special Agency, 227 N. Y. 42; Brennan v. Willson, 71 N. Y. 502.) IV. The public policy of the State of New York requires reversal of the order below. V. Lack of jurisdiction renders the order below void under the due process clause of the Constitution. (Scott v. McNeal, 154 U. S. 34.)

      John A. Hoyt, Jr., for plaintiff and judgment-creditor-respondent.
    I. Review is not required or justified in the interest of substantial justice. (Metropolitan Trust Co. of N. Y. v. Bishop, 237 N. Y. 607; Delaney v. Brett, 51 N. Y. 78; Purdy v. Erie R. R. Co., 162 N. Y. 42,185 U. S. 148; Hughes on Federal Practice, §§ 3220, 3224.) II. It is the public policy of the State to assist resident judgment creditors in levying and collecting under their judgments. (Commercial Credit Corp. v. Young, 258 App. Div. 323; Shackman v. Osborne, 257 App. Div. 1037; Carpenter v. Farabaugh, 146 Misc. 625; State Tax Comm. v. Bradley, 185 Misc. 733.) III. Situs of the Ryan testamentary trust and its administration are governed by the laws of New York. (Bishop v. Bishop, 257 N. Y. 40; Hutchison v. Ross, 262 N. Y. 381; Cross v. United States Trust Co. of N. Y., 131 N. Y. 330; Farmers Loan & Trust Co. v. Ferris, 67 App. Div. 1; Keeney v. Morse, 71 App. Div. 104; City Bank Farmers Trust Co. v. Meyn, 263 App. Div. 671; Matter of McAuliffe, 167 Misc. 783; Matter of Freed, 71 N. Y. S. 2d 304; Matter of Matthiessen, 195 Misc. 598; Holmes v. Camp, 219 N. Y. 359; Helme v. Buckelew, 229 N. Y. 363; Squier v. Houghton, 131 Misc. 129; Toronto Gen. Trust Co. v. Chicago, B. & Q. R. R. Co., 123 N. Y. 37.) IV. The trustees have full access to the courts of this State. V. Designated executors in the Ryan estate previously submitted to and used the Surrogate’s Court of New York County. (Matter of Fitch, 160 N. Y. 87; Smith v. Second Nat. Bank, 169 N. Y. 467; Matter of Grivel, 199 Cal. 351; Matter of Healey, 134 A. 684 [N. J.].) VI. Documentary evidence outside the record regarding prior estate proceedings in New York may be received on appeal. (Dunham v. Townshend, 118 N. Y. 281; Latourelle v. New York Central R. R. Co., 275 App. Div. 123.) VII. District of Columbia courts do not have exclusive jurisdiction of the subject trust. (Smithson v. Callahan, 141 F. 2d 13.) VIII. Presentation under the garnishment statute (Civ. Prac. Act, § 684) is not a process but is only notice of the issuance of execution. (Smith v. Endicott-Johnson Corp., 199 App. Div. 194; Farwell v. Smith, 29 Mass. 83; Alabama & F. R. Co. v. Rowley, 9 Fla. 508.)
   Conway, J.

In December, 1950, a firm of attorneys, both members of which are New York residents, recovered a judgment in Supreme Court, Bronx County, against Elizabeth K. Mabee. The judgment was for professional services rendered to Mrs. Mabee who appears to have been a resident here at the time of the action since it is so stated in respondent’s brief and there is no claim by appellant trust company that she was not or that she has since changed her residence. Execution has been returned unsatisfied and no part of the judgment has been paid.

On August 31,1951, the plaintiff-judgment-creditor instituted this garnishment proceeding pursuant to section 684 of the Civil Practice Act to reach income payable to the judgment debtor from a trust created by the will of Thomas J. Ryan, deceased. The decedent died a resident of the District of Columbia in December, 1927. He bequeathed his residuary estate in trust to pay one half of the net income thereof to his sister Anne Belle Ryan (now deceased) during her life, and one half of such net income to the judgment debtor herein, Elizabeth K. Mabee (named in the will as Elizabeth O’Connor McCarthy). After the death of the respective beneficiaries, the net income of the trust is payable in perpetuity to St. Clara College of Sinsinawa, Wisconsin, a religious educational institution.

On January 13, 1928, the trust company obtained temporary letters of administration from the Surrogate’s Court, New York County. The executive officer of St. Clara College, Ellen Coughlin, consented to the appointment.

Thereafter, in February, 1928, the will was admitted to probate in the Supreme Court of the District of Columbia holding Probate Court. The trust company and Ellen Coughlin, executive officer of St. Clara College, qualified and were appointed as executors.

On July 20, 1928, the trust company alone was granted ancillary letters testamentary from the Surrogate’s Court, New York County.

On December 23, 1929, the final account of the executors was passed upon and approved by the District of Columbia court. That account “ shows distribution of the estate according to law and to the will, one-half unto M. Genevieve Ryan and one-half to the testamentary trustees under the will for the benefit of Anne Belle Ryan and Elizabeth O’Connor McCarthy for life.”

The property comprising the trust fund is now on deposit at .the head office of the trust company in New York City,

In October, 1931, the trust company, and Ellen Coughlin, as cotrustee, brought a proceeding in the Supreme Court of the District of Columbia (as it was then named) for the settlement of their first- account as trustees and for a construction of the will. On December 3, 1931, a decree was entered settling the account and construing the will with reference to their investment powers. The decree also contained the following provision: That jurisdiction of this cause be and it is hereby retained for such further orders and instructions regarding the administration of the trust estate as may be deemed necessary.” (Italics supplied.)

Under date of November 17, 1952, counsel for the plaintiff wrote to the Clerk of the United States District Court for the District of Columbia inquiring as to whether the records of his court:

1. * * * indicate that the Farmers Loan & Trust Company of New York (now known as City Bank Farmers Trust Company) and Ellen Coughlin, Executive Officer of St. Clara College, both designated as Trustees under decedent’s will, consented to act as Trustees in connection with the above estate, and whether or not they qualified as Trustees and in so consenting and qualifying, did they constitute and appoint the Clerk of your Court as their lawful attorney to accept service in regard to subject estate?
2. * * 5 indicate that Katherine Murphy, the present Executive Officer of St. Clara College (succeeding Ellen Coughlin on or about 29 July, 1949), has consented to act as •Trustee in the above estate and whether or not she qualified as Trustee, and in so consenting and qualifying did she constitute and appoint the Clerk of your Court as her lawful attorney to accept service in regard to subject estate?
“3. 8 * * indicate a resignation of said Ellen Coughlin as a Trustee of subject estate on or after 29 July, 1949 when she ceased being Executive Officer of St. Clara College? ”

The clerk answered stating that: 1 ‘ The last action in the case was a decree instructing Trustees entered December 3, 1931 ” (quoted above in part), and that: “ No consents of trustees to serve have been filed in the cause, and the Court not having appointed "he trustees no power of attorney designating the Clerk of this Court as a process agent for trustees has been filed.”

The application for the order of garnishment involved on the present appeal was made by the plaintiff-judgment-creditor by affidavit and order to show cause returnable at Special Term in September, 1951. The order was directed to the trust company and the executive officer of St. Clara College as trustees. It, and the affidavit upon which it was granted, was served personally within the State upon the trust company and, as conceded by the trust officer of the trust company, upon the executive officer of St. Clara College outside the State, by registered mail, in accordance with the terms of the order to show cause.

The motion was granted and the Appellate Division affirmed but granted leave to appeal certifying five questions of law to us.

The major issue to be determined is whether the courts of the State of New York have jurisdiction to garnishee the income or profits due or to become due from trust funds admittedly located here.

The trust company contends that the situs of this trust is in the District of Columbia and that exclusive jurisdiction to garnishee the income of a trust is vested in the courts of the State of the situs of the trust whether or not there are trust funds there.

The situs of a trust is “ determined by an interpretation of the words by which the trust is created. No rule of law can be laid down for the purpose of interpretation. * * * [A] 11 indications are considered, such as the intention of the parties, the place of business or domicil of the trustee, the location of the trust res, and other similar matters.” (2 Beale on Conflict of Laws, p. 1024.) “ In the case of a testamentary trust, the seat of the trust is usually the domicil of the testator, where the will takes effect, unless a contrary intention appears, as by naming a foreign trust company as trustee.” (id.) (Italics supplied.) In section 298 of the Be statement of Conflict of Laws it is said: A testamentary trust of movables is administered by the trustee according to the law of the state of the testator’s domicil at the time of his death unless the will shows an intention that the trust should be administered in another state.” Comment c of that section reads: “If the testator appoints as trustee a trust company of another state, presumptively his intention is that the trust should be administered in the latter state; the trust will, therefore, be administered according to the law of the latter state.” (Italics supplied.)

According to the above tests the situs of this trust is not the testator’s domicile, the District of Columbia, but New York for: (1) the testator appointed as trustee a New York trust company which had no office or place of business at the testator’s domicile, undoubtedly realizing that such trustee would assume the active role in administering the estate and keep the res here, especially since the other trustee was to be whatever religious was the executive officer of a college in Wisconsin, (2) the will authorized the executors to invest the proceeds of all property sold “ in United States Government bonds or other corporation bonds but only such bonds as are permissible under the law of New York State for saving banks within the State of New York to invest their deposits in ”, and (3) the will provided that the amount of commissions to be paid to the trust company alone both as executor and trustee be determined in accordance with the laws of New York. There was no provision for payment of such commissions to the executive officer of St. Clara College. In addition it was made a condition for the exercise of “ authority, discretion or power ” by “an executor or trustee ” that there be qualification as such.

Assuming, however, that the District of Columbia by retaining control of the administration of the trust, has determined that its situs is there and that full faith and credit must be accorded that determination, it does not necessarily follow that we are powerless to apply the income from a trust res, which is physically present in our State, to the payment of judgments of resident judgment creditors. The courts of this State are not wholly without power to protect a resident creditor at least so far as the relief to be secured relates to property within the jurisdiction of the court and unquestionably belonging to the judgment debtor. (Helme v. Buckelew, 229 N. Y. 363, 368; Bergmann v. Lord, 194 N. Y. 70, 78.) We may assume that prior to its decree in which it announced a retention of jurisdiction over the administration of the trust, the District of Columbia court passed upon the validity, construction and effect of testator’s will and of the trustees’ accounting, but it is clear that none of those determinations has any relation to a statutory garnishment proceeding in this State affecting money belonging to the judgment debtor in the possession of the trust company here as a result of the administration of the trust under the supervision of the District of Columbia court. As was well said in Keeney v. Morse (71 App. Div. 104, 107): “ By its terms, the income is to be paid to the defendant [beneficiary], and the appropriation of such income to a judgment creditor of the beneficiary would be a violation of the terms of the trust, and not an enforcement of it. Whether or not there shall be such an appropriation must depend upon the laws of the State in which the application to reach the fund, situated as this is, is made; and the question is whether the income of the trust property situated here is applicable to the payment of a judgment against the person to whom the income is payable.” In Beale on Conflict of Laws (Yol. 1, p. 454), it is written: “ The jurisdiction for garnishment of tangible property is obviously based upon the possession by the garnishee of property belonging to the defendant, which can be reached by the court because it is situated within the territory of the court.”

The stated rule as to jurisdiction for garnishment purposes is a sound one and finds support in the following language of the United States Supreme Court in Pennoyer v. Neff (95 U. S. 714, 723): “So the State, through its tribunals, may subject property situated within its limits owned by non-residents to the payment of the demand of its own citizens against them; and the exercise of this jurisdiction in no respect infringes upon the sovereignty of the State where the owners are domiciled. Every State owes protection to its own citizens; and, when nonresidents deal with them, it is a legitimate and just exercise of authority to hold and appropriate any property owned by such non-residents to satisfy the claims of its citizens.”

And, in Hutchison v. Ross (262 N. Y. 381) we said at page 388 (per Lehman, J.): “ The courts of each jurisdiction determine all judicial questions by the law of that jurisdiction. When the owner of personal property authorizes its removal from his domicile or acquires property elsewhere, he must he deemed to know that his property comes under the protection of, and subject to the laws of the jurisdiction to which it has been removed, and that appeal may be made to the courts of that jurisdiction for the determination of conflicting rights in such property.”

The remaining question is whether the requirements of the New York garnishee statute (Civ. Prac. Act, § 684) have been met. That section provides in part: “ 1. Where a judgment has been recovered and * * * returned * * * unsatisfied, and * * * income from trust funds ° * * are due and owing to the judgment debtor or shall thereafter become due and owing to Mm * * * the judgment creditor may apply to the court in which said judgment was recovered * * * without notice to the judgment debtor, and upon satisfactory proofs e ° * the court * * * must grant an order directing that an execution issue against the * * * income from trust funds * * * of said judgment debtor * * * and on presentation of such execution by the officer to whom delivered for collection to the person or persons from whom such * * * income from trust funds * * * are due * * * said execution shall become a lien and a continuing levy upon the * * * trust funds " * * due or to become due to said judgment debtor * * (Italics supplied.)

The order entered at Special Term provides that the execution: “ * * * when presented by the Sheriff to the said The City Bank Farmers Trust Company and the Executive Officer of St. Clara College, as Trustees under the Last Will and Testament of Thomas J. Ryan, deceased, shall become a lien and a continuing levy upon the income from trust funds or profits, due or to become due to the said judgment debtor from the said The City Bank Farmers Trust Company and the Executive Officer of St. Clara College, as Trustees under the Last Will and Testament of Thomas J. Ryan, deceased * *

The majority of the Appellate Division interpreted the order of Special Term to mean that personal service of the execution would be made on the trust company in New York and actual notice would be given to the nonresident alleged trustee. That was held to be a sufficient presentment under the statute.

The trust company’s argument is that the trust property can be disposed of only by the concurrent action of both trustees, hence, personal service on both trustees is required in a garnishment proceeding.

Reliance is placed upon Starke v. Beckwith Special Agency (227 N. Y. 42, 43-44) in which we said: To fix his [garnishee’s] liability the execution must be presented. And 1 presentation ’ implies some formality [cases cited] * * #. Personal service of the execution is clearly contemplated.”

Here, Ellen Coughlin was succeeded by Katherine Murphy as the executive officer of St. Clara College in July, 1949. Katherine Murphy (known in religion as Mother Mary Evelyn Murphy) has not been appointed as successor trustee by the District of Columbia court. She has not designated the clerk of that court as an agent upon whom process may be served in a proceeding brought against her. She has not given the District of Columbia court jurisdiction over her by applying to that court for instructions or in any other manner in connection with the administration of the trust. She (or her predecessor) has waived commissions and permits the trust company to pay out the money of the trust estate on its sole check and to make tax returns and pay the tax. She has not met the condition of the will that: Any authority, discretion or power conferred upon my executors and/or Trustees by this Will may be exercised by such of them as shall qualify, and by the survivor of them.” (Italics supplied.)

Thus, there is no evidence in this record to indicate that Katherine Murphy ever qualified as a successor trustee under the terms of the will as a condition of her authority to act and we are compelled to conclude that she is not a trustee and that personal service upon the trust company, without more, is a sufficient presentment under the statute.

If Katherine Murphy were a trustee, as is claimed by the trust company, it seems to us that, under the circumstances here presented, personal service upon the trust company and actual notice to her would be a sufficient presentment. The record does not disclose whether or not such presentment has been made or is to be made after our decision. As indicated (supra) it is conceded that service of the order to show cause which initiated this proceeding was served personally upon the trust company and by registered mail with return receipt requested upon the executive officer of St. Clara College and all of the parties have been content to proceed upon that basis.

A garnishee is usually one who is a stakeholder who finds himself suddenly in the midst of a controversy in which he has no interest but who may be subjected to suit at the hands of either the judgment creditor or judgment debtor if he pay the money over to the wrong party. To fix the trustee’s liability, section 684 of the Civil Practice Act provides that the execution must be presented to him. However, that section is a remedial statute in that it pertains to and affects a remedy as distinguished from a right. As such it should not be construed with such strictness as to defeat its evident purpose which is to aid and facilitate the collection of debts. The word “ presented ” has variable meanings depending upon the context in which it is used. Among* such meanings are “ show ” and “ exhibit (33 Words and Phrases, p. 442 et seq.) True, we have said in Starke v. Beckwith Special Agency (supra) that in section 684 of the Civil Practice Act the word “ present ” means personal service. Nevertheless, to construe the word in such fashion that personal service, in a strict sense of the word, is necessary as to both the trust company and the executive officer of St. Clara College here would be to exalt language over substance and defeat the very purpose of the statute. It has been said: “ 1 it is not the words of the law, but the internal sense of it that makes the law, and our law (like all others) consists of two parts, viz., of body and soul; the letter of the law is the body of the law, and the sense and reason of the law is the soul of the law * * V ” (Holmes v. Carley, 31 N. Y. 289, 290.) Sense and reason demand that in this case a more Hberal construction be given the word present ”, One of our lower courts has held that presentation ” as used in section 684 of the Civil Practice Act means either personal service or service by registered mail with a return receipt requested. (Triangle Publications v. Worth Adv. Agency Co., 200 Misc. 671.) We should so regard it on this record as to the present executive officer of St. Clara College if we assume that in some way which has not been called to our attention she has become a successor trustee.

The order of the Appellate Division should be affirmed, with costs. The first four questions certified are not answered. The fifth question certified is answered in the affirmative.

Desmond, J.

(dissenting). I vote to reverse.

I realize that there is practical convenience to respondent, and perhaps an appearance of fairness, in allowing these creditors of the trust income beneficiary, to garnishee, in New York, the income which is being paid to her by- a New York trust company, one of the trustees, on the securities held by the trust company in New York City. However, the difficulty arising from our affirmance of the garnishee order, is that the New York courts are thereby making directions for payment of income, different from those in the terms of the trust itself, and as to a trust which is presently being administered by a competent court of the District of Columbia. That this trust is still under administration in the United States District Court for the District of Columbia is entirely clear from the language, quoted in Judge Conway’s opinion, wherein that court specifically retained jurisdiction of the trust for necessary further orders and instructions regarding its administration. After the executors had accounted in that court, the trust fund was turned over to the testamentary trustees to be administered according to the provisions of the will, and the trustees have no right to distribute the income otherwise, except on instructions of that court (see Everhart v. Provident Life & Trust Co., 118 Misc. 852, 854, Lehman, J., citing Jenkins v. Lester, 131 Mass. 355). Thus, when they comply with this New York garnishee order, they can be accused of violating the instructions of the District of Columbia court which turned the trust over to them, and which has retained jurisdiction of it. What we are doing, by this affirmance, is subjecting these trustees to two conflicting sets of instructions, by two different courts.

So, it seems to me, it is not of prime importance whether this trust would be considered, for other purposes, as located ” in the District of Columbia, or in New York. But, if we are to decide that question, we must remember that ordinarily, as to a testamentary trust, it is presumed that the locus is at the place where the will was probated, unless the trust has been turned over to trustees in another State without further control by the court which probated the will. Judge Lehman- pointed out in the Everhart opinion (supra, p. 855), as one reason (there was another not here pertinent) why that trust had to be considered as being “ legally outside of the state ”, that “ the instrument creating the trust was probated in a foreign jurisdiction ”. It is true, here, that one of the trustees, and the one which has physical possession of the res, is in New York, but there is another trustee in Wisconsin, and there is nothing in this record to indicate that the Wisconsin trustee has lost her position as such. There is certainly no showing that the Wisconsin trustee has failed or neglected to take any step, if there be any, required by District of Columbia law, to keep her in her trusteeship. The trust business, to be sure, is being carried on in New York, as to the holding of the securities and the collection and paying out of the income, but trust law requires that the two trustees act jointly, and, presumably the New York trustee communicates with the Wisconsin trustee whose powers are exactly the same as those of the New York bank. The ministerial duties of the trust can be and are carried on bv one trustee, but the trusteeship is still joint.

This is not a problem of finding the locus of a trust to see what law governs it, but rather of a demand, by a trust beneficiary’s creditor, for a direction by a New York court for payment of income contrary to the direction made by the trust itself and by the court which is administering the trust.

Lewis, Dye and Fboessel, JJ., concur with Cobway, J.; Desmobd, J., dissents in opinion in which Fuld, J., concurs.

Order affirmed, etc.