author: Van Voorhis, J. Chief Judge Conway (dissenting).

text:
    Norman La Porte et al., Appellants, v. State of New York, Respondent.
    (Claim No. 33115.)
    Argued January 16, 1959;
    decided May 14, 1959.

      Dante M. Scaccia for appellants.
    I. A resident of the State,
    or a person whose whereabouts can be ascertained with due diligence, is entitled to personal notice as to eminent domain proceedings with respect to the taking and the amount of compensation. The notice of appropriation by filing in the County Clerk’s office in this ease thus did not comport with due process. (Pennoyer v. Neff, 95 U. S. 714; Hiling v. Kaw Val. Ry., 130 U. S. 559; Ballard v. Hunter, 204 U. S. 241; Matter of City of Syracuse, 224 N. Y. 201; Matter of Mayor of City of N. Y., 40 App. Div. 281; Jacobs v. United States, 290 U. S. 13; Phelps v. United States, 274 U. S. 341; Matter of City of New York [Bronx Riv. Parkway], 284 N. Y. 48, 313 U. S. 540; Mullane v. Central Hanover Trust Co., 339 U. S. 306.) II. Even if the “ constructive notice ’ ’ provided by filing of the map and description were constitutionally permissible, such notice is inadequate unless copies of the map and description are personally served upon claimants as required, which failure violates due process. (Ballard v. Hunter, 204 U. S. 241; District of Columbia v. Lynchburg Co., 236 U. S. 692.) III. The statute violates due process when construed to apply to an owner who has no notice or any reason to know of the contemplated proceedings. (McDonald v. Mabee, 243 U. S. 90.)

      Bernard L. Bermant, amicus curiae, in support of appellants’ position. I.
    As interest is part of claimants’ constitutional just compensation, sections 10 and 19 of the Court of Claims Act cannot be interpreted to deny claimants that part of their just compensation represented by interest on the award for the period subsequent to six months after the filing of the appropriation maps, and before the filing of the claim without deprivation of just compensation as well as procedural due process, contrary to the provisions of the New York State Constitution and the Fourteenth Amendment to the Constitution of the United States. (Jacobs v. United States, 290 U. S. 13; Matter of City of New York [Bronx Riv. Parkway], 284 N. Y. 48, 313 U. S. 540; Matter of City of New York [Grand Blvd.], 212 N. Y. 538; Amy v. Watertown, 130 U. S. 301; Korn v. Lipman, 201 N. Y. 404; Merriman v. City of New York, 227 N. Y. 279; Huling v. Kaw Val. Ry., 130 U. S. 559.) II. Section 19 of the Court of Claims Act may be so interpreted as tb be inapplicable to appropriation claims or it can be so interpreted together with section 10 of that act to mean that interest, as part of claimants ’ constitutional just compensation, shall cease six months after personal service of the appropriation maps and resume when the claim is filed within two years of that date. Thereby the statute will be given the meaning the Legislature intended. (Kahlen v. State of New York, 223 N. Y. 383; Buffalo Val. Realty Co. v. State of New York, 273 N. Y. 319; Bleeck v. State of New York, 184 Misc. 138; Zember v. State of New York, 5 Misc 2d 221.)

      Louis J. Lefkowits, Attorney-General (Julius L. Sackman and Paxton Blair of counsel), for respondent.
    I. The claim accrued at the time' the map and description were filed in the County Clerk’s office. The delay in thereafter serving the map and description on claimants did not render the suspension-of-interest provisions in the Court of Claims Act unconstitutional. II. Interest is not a part of the claim to which the provisions of section 10 of the Court of Claims Act as to personal service are applicable. (Kieselbach v. Commissioner, 317 U. S. 399; Seaboard Air Line Ry. Co. v. United States, 261 U. S. 299; Matter of City of New York [Bronx Riv. Parkway], 284 N. Y. 48, 313 U. S. 540; Brooks-Scanlon Corp. v. United States, 265 U. S. 106; Phelps v. United States, 274 U. S. 341; Jacobs v. United States, 290 U. S. 13; Bailey v. Anderson, 326 U. S. 203; Clark v. Cox, 134 Conn. 226; Gitlin v. Pennsylvania Turnpike Comm., 384 Pa. 326; State v. Deal, 191 Ore. 661; Flemming v. Board of Comrs., 119 Kan. 598; De Bruhl v. State Highway & Public Works Comm., 247 N. C. 671.) III. The notice herein did comply with due process. (Schneider v. City of Rochester, 90 Hun 171, 155 N. Y. 619; Matter of Union El. R. R. Co., 112 N. Y. 61; Matter of City of Amsterdam, 126 N. Y. 158; De Matteis v. Town of Hempstead, 207 Misc. 1026, 286 App. Div. 1025; Bragg v. Weaver, 251 U. S. 57.) IV. Deprivation of possession is essential to the allowance of interest. (Matter of Mayor of City of New York [Grote St.], 150 App. Div. 215; Plum v. City of Kansas, 101 Mo. 657; Miller v. Asheville, 112 N. C. 759; Pattison v. Buffalo R. Co., 268 Pa. 555; State v. Humes, 34 Wash. 347; Shoemaker v. United States, 147 U. S. 282; Hamersley v. Mayor of City of N. Y., 56 N. Y. 533; Donnelly v. City of Brooklyn, 121 N. Y. 9.) V. Delay in prosecution of a claim justifies the suspension of interest. (Kaukauna Co. v. Green Bay &

      Mississippi Canal Co., 142 U. S. 254; Felts v. Central Nebraska Public Power & Irrigation Dist., 124 F. 2d 578; Central Nebraska Public Power $ Irrigation Dist. v. Berry, 124 F. 2d 586; Central Nebraska Public Power & Irrigation Dist. v. Fairchild, 126 F. 2d 302; Luckenbach S. S. Co. v. United States, 272 U. S. 533.) VI. The interest was properly suspended from December 1, 1953 to April 7,1955. (Vescera v. State of New York, 3 A D 2d 644; Marson v. New York State Thruway Auth., 4 A D 2d 928; Cacciatore v. State of New York, 4 A D 2d 928; Sweet v. Rechel, 159 U. S. 380; Moller v. New York Cent. R. R. Co., 282 N. Y. 188; Matter of Mayor of City of N. Y., 99 N. Y. 569; People v. Adirondack Ry. Co., 160 N. Y. 225, 176 U. S. 335.) VII. The plain intent and provisions of section 19 of the Court of Claims Act were not altered by the amendment made to section 10 by chapter 688 of the Laws of 1948.
   Van Voorhis, J.

Under section 347 of the Highway Law, added in its original form by chapter 914 of the Laws of 1942, title to property necessary for State Thruways and bridges is acquired by the filing in the office of the Secretary of State by the Superintendent of Public Works of a description and map of the property under condemnation and by filing a copy thereof in the County Clerk’s office in each county where the property is located. A copy of the description and map is delivered to the Attorney-General, “ whereupon it shall be the duty of the attorney-general to advise and certify to the superintendent of public works the names of the owners of the property, easements, interests or rights described in the said description and map, including the owners of any right, title or interest therein. Upon such certification, the superintendent of public works shall cause a notice of appropriation to be filed and recorded in the office of the county clerk or register of the county in which such property is situated.” Service upon the property owners is required to be personal, if the person to be served can be found within the State, or if service is not dispensed with for good cause. In the case of a public improvement such as the New York State Thruway, it was manifestly impossible to ascertain and serve immediately and at one time the owners of all interests in all of the parcels of property acquired. The effect of this statute is to require such notice to be served as soon as is reasonably possible. Although the provisions of this section of the Highway Law regarding notice to property owners are not claimed to render the statute invalid, they are noted in view of the comment in the dissenting opinion that unless the judgment appealed from is reversed there is no duty on the part of the State to serve property owners at any time.

Claimants-appellants in the instant case own a house and lot in the County of Albany. The frontage is 100 feet on St. Michael’s Lane, and the lot is 110 feet in depth. The house is not taken. Thirty feet has been appropriated for the New York State Thruway along one side of the lot. After appropriation, the house is 5 feet instead of 35 feet from the side line. No question is before the court concerning appellants’ right to be paid the value of the land appropriated, together with consequential damage to the house and the remaining portion of the lot. This appeal concerns only the question of interest upon the award. The appropriation map and description were filed in the Albany County Clerk’s office on June 1, 1953, and were served personally on appellants during the latter part of April, 1955. Their claim was filed with the Court of Claims on April 7,1955. Interest was conceded to appellants for six months following the vesting of title in the State on June 1,1953 (the date of filing of the description and map in the Albany County Clerk’s office), but interest was suspended at the end of this six months ’ period, and no further interest has been conceded until the filing of the claim on April 7, 1955. From then on there is no dispute that interest is to be paid. The reason for disallowing interest during this interim is the language of subdivision 1 of section 19 of the Court of Claims Act directing: “If a claim which bears interest, is not filed until more than six months after the accrual of said claim, no interest shall be allowed between the expiration of six months from the time of such accrual and the time of the filing of such claim.”

It is argued that appellants did not know, until several weeks before they were personally served with notice of this appropriation, that 30 feet along the side of their lot had been covered by the map and description on file in the County Clerk’s office, with the consequence that they are not collecting interest from six months afterward until the filing of their claim with the Clerk of the Court of Claims. Subdivision 1 of section 19 of the Court of Claims Act is attacked as unconstitutional on the basis that just compensation to owners requires the allowance of interest from the time of the appropriation, rather than from the date of the filing of their claim or from the taking of possession for Thruway purposes. The Court of Claims upheld claimants’ contention, hut the Appellate Division reversed and dismissed their claim to interest, stating that “ if nothing occurred to bring home knowledge of the taking to claimants, they had the full use and benefit of the land during the interval and could not reasonably expect both interest and possession.” We agree with this view of the case.

Where title has passed to the State or other public body, and the value of the property is later to be determined as of that date, interest until the adjudication of the award is held to be payable as part of just compensation to the owner for the appropriation of his property (Matter of City of New York [E. 178th St.], 107 App. Div. 22, 25, affd. on opinion of G. L. Ingraham, J., 183 N. Y. 571; Matter of Minzesheimer v. Prendergast, 144 App. Div. 576, affd. 204 N. Y. 272; Matter of City of New York [W. 151st St.], 222 N. Y. 370; Matter of City of New York [Westchester Ave.], 217 App. Div. 381; Jacobs v. United States, 290 U. S. 13). Upon the other hand, a condemnee is not allowed interest during periods while he has had an equivalent use of the property (Matter of Mayor of City of New York, 40 App. Div. 281, followed in Matter of Riverside Park, 59 App. Div. 603, 605, affd. 167 N. Y. 627). In Matter of City of New York (Newton Ave.) (219 N. Y. 399, 407-408) it was said, per Cardozo, J., We are told that great hardship will result to the city if it is charged with interest since the appropriation in 1895. But we do not now decide that it is chargeable with interest. That question has not been certified to us. The Albany Post road, although nominally closed in 1895, was not physically closed until 1914. Up to that time the adjoining owners had the same use of it that they had in former years. It will be for the courts below to determine, when the commissioners make their report, whether the value of the beneficial use may be set off against interest on the award [citing cases].” (Italics from original.)

It is clear that no constitutional mandate is violated by the denial of interest during periods while the owner has enjoyed the full beneficial use of his premises (Hamersley v. Mayor of City of N. Y., 56 N. Y. 533; Donnelly v. City of Brooklyn, 121 N. Y. 9, 21; Shoemaker v. United States, 147 U. S. 282, 321).

Under these decisions interest in condemnation cases until the award is a substitute for the use of real property, and, although the burden is ordinarily upon the condemnor to prove by way of offset that the value of the use has been at least equal to the interest, that does not render unconstitutional subdivision 1 of section 19 of the Court of Claims Act. Under this statute, interest accrues automatically during six months after the appropriation, and the running of interest is never suspended if the property owner files his claim before the expiration of six months. Moreover, even if he omits to file within six months, he may do so afterward which sets the interest running again. It is not too much to presume, in order to sustain the constitutionality of this section, that the property owner would file a claim if he were at any time curtailed in the dominion which he has had occasion to exercise over his property. It is said that he may not have had actual notice of the appropriation inasmuch as he is not obliged to keep himself informed of the papers in the office of the County Clerk. That may be true, but if these claimants had desired to sell or to rent and had been prevented from doing so, or had been dispossessed, it would have been brought to their attention that the power of eminent domain was being exercised, with the right on their part to file a claim. The very circumstance that it is argued that these claimants were not aware that the appropriation map and description had been filed indicates that they were not disturbed in their use of this property. A claimant cannot be heard to attack the constitutionality of this statute by contending that he should be awarded interest to compensate him for a use of which he did not know that he had been deprived.

The possibility mentioned in the dissenting opinion herein that a property owner might make improvements to his land after the filing of the appropriation map and description has nothing to do with the payment of interest. That possibility exists regardless of whether the judgment appealed from herein be reversed or affirmed. The Thruway statute is not being attacked on any ground that it provides insufficient notice to landholders. Section 347 of the Highway Law is not challenged by the parties. Only subdivision 1 of section 19 of the Court of Claims Act is alleged to be unconstitutional.

Nothing to the contrary was held in Matter of City of New York (Grand Blvd.) (212 N. Y. 538); in Matter of City of New York (Bronx Riv. Parkway) (284 N. Y. 48, affd. 313 U. S. 540), or in Jacobs v. United States (290 U. S. 13), in none of which was the controversy now before the court presented.

The judgment appealed from should be affirmed, without costs.

Chief Judge Conway (dissenting).

Subdivision 1 of section 19 of the Court of Claims Act provides: “ If a claim which bears interest, is not filed until more than six months after the accrual of said claim, no interest shall be allowed between the expiration of six months from the time of such accrual and the time of the filing of such claim.”

Old section 24, the precursor of the above-quoted section, was substantially the same. The application of the provision to other than eminent domain cases is clear and fair; they generally involve a time of “ accrual ” that is accrual by every standard, and facts which clearly bring home to the party concerned the fact that he has a claim of some kind—or that he may have, and should inquire after it. And until recently, eminent domain cases did not present any problem, because in them, too, procedures were such that the party concerned was fully apprised of everything that was taking place. But the Legislature amended eminent domain statutes, and enacted others, wherein a very significant change was effected. Instead of the title to the property passing to the State upon personal service of a notice on the condemnee, as had previously been the case, title was decreed to pass upon the State’s mere filing of a map and description in the office of the County Clerk of the county wherein the condemned property was situate. The Legislature very apparently appreciated the implications of the change it had wrought, for it amended subdivision 1 of section 10 of the Court of Claims Act to assure that a condemnee would be in no way prejudiced in the assertion of his claim by any misunderstanding or misconstruction of the word ‘ ‘ accrual ’ ’, as used in that section, dealing with the Statute of Limitations in eminent domain cases. As originally enacted, subdivision 1 of section 10 of the Court of Claims Act provided: “ A claim for the appropriation by the state of lands, or any right, title or interest in or to lands shall be filed within two years after the accrual of such claim.”

Traditionally, statutes providing for the taking of private property enacted that title would pass not upon the mere filing of the map and description, as the statute at bar (Highway Law, § 347) provides, but only upon personal service on the condemnee of notice of the taking. Under those statutes, no problem arose. Since title did not pass until personal service on the condemnee, the claim did not accrue until then. Thus the two-year Statute of Limitations upon the claim (§ 10, subd. 1) did not begin to run until then, and neither did the six months (after which interest would stop) begin to run until then (§ 19, subd. 1). In recognition of the recent changes in appropriation statutes, providing for the passing of title upon filing of a map and description in the office of the County Clerk, and in obvious recognition of our decision in Matter of City of New York (Grand Blvd.) (212 N. Y. 538), which held that in eminent domain cases the filing of the map may not be constitutionally construed as notice to the condemnee, the Legislature in 1948 (L. 1948, ch. 688) amended subdivision 1 of section 10 of the Court of Claims Act to add immediately after the word 11 claim ’ ’ above: “ or where title is vested by the filing of a description and map in the office of the county clerk or register, then within two years after personal service of a copy of such description and map and notice of filing thereof * * *.”

Now the word accrual ”, as applied to cases in which the filing constituted the taking, meant personal notice to the condemnee, i.e., the cause of action, for Statute of Limitations purposes, would not accrue until such personal notice. For other purposes it could be construed as having accrued at the filing, e.g., we may assume that the condemnee, if informed of all of the facts, would not have to wait until personal notice before filing bis claim (as the condemnecs at bar did not wait). But for Statute of Limitations purposes at least, there is no accrual until personal notice. Now no change was made in subdivision 1 of section 19 (quoted supra, p. 8), which deals with interest on a elaim against the State. No change was necessary, although a corresponding amendment would have obviated the instant difficulty. If by the amendment of subdivision 1 of sec-

tion 10 “ accrual” was in effect postponed, as to commencing the running of the Statute of Limitations, until personal notice served on the eondemnee, why should ‘ ‘ accrual ’ ’ as mentioned in subdivision 1 of section 19 be construed as referring to the filing of the map alone 1 Such a construction completely ignores our decision in Matter of City of New York (Bronx Riv. Parkway) (284 N. Y. 48, 54, affd. 313 U. S. 540). In that case it was determined beyond all possible doubt that just compensation under our State Constitution (art. I, § 7) and under the due process clause of the Fourteenth Amendment to the Federal Constitution must include “ some sum in addition to the bare value of the property at the date of taking for the delay in making payment ’ It seems clear, especially in view of that holding, that the legislative intent in amending subdivision 1 of section 10 was to postpone until personal notice the running of the Statute of Limitations on the claim including such Statute of Limitations as aims at the stopping of interest on the claim, since interest (absent other consideration, and there is none here) is a constitutional part thereof. That should be sufficient, in eminent domain cases, to enable us to construe “ accrual” of subdivision 1 of section 19 as referring to the personal service ’ ’ of subdivision 1 of section 10. There is nothing in the relevant statutes to indicate that the Legislature purposed to substitute some other consideration to compensate the condemnee for the delay in paying him the price of his land. Interest is the only consideration provided for, and interest accompanies the claim from beginning to end—unless, of course, some procedure satisfactory to the Constitution is provided to keep the interest down. No constitutional procedure for so doing has been provided here, and a contrary holding therefore would amount to an unconstitutional reduction in the just compensation to which the eondemnee is unquestionably entitled under our Bronx Biver Parkway decision. To decide otherwise would be to hold that we must construe subdivision 1 of section 19 without reference to changes in the law with which it must be brought into harmony; that we must continue to apply it to its letter, in utter disregard of both legislative action affecting it and constitutional requirements controlling it. Subdivision 1 of section 19 is a statute that aims at general application to claims against the State; it does not treat exclusively or specifically of condemnation claims. Yet the latter are unique, today, because of the peculiar factual possibility now presented in such cases: that the claim may “ accrue ” when the claimant knows nothing about it and when nothing has occurred to charge him with knowledge of it. In such circumstances, we should not continue to construe subdivision 1 of section 19 as if no change had occurred in the law, because a change there has been—-and one which brings new and substantial implications to the application of the section. And constitutionally, we cannot so construe it; under both Federal and State Constitutions the claim and interest on it are but a single entity, the two together being just compensation. If mere filing of the map cannot be taken as notice sufficient to begin the running of a time limitation on the claim, then it cannot be taken as notice sufficient to begin the running of a time limitation that reduces interest on the claim. That must be our holding, in our judgment, unless we are prepared to overrule our Bronx River Parkway decision, holding interest as constitutionally integrated in the claim, or our Grand Boulevard decision, holding the filing of the map insufficient to apprise the condemnee of the taking.

Here the claim was filed before personal notice was served on the condemnees, so we know that they had found out about the taking some time prior to personal service. But we do not know exactly when. The record is barren of any data thereon, and the State did not even undertake to litigate the question. Yet if we are to uphold the Grand Boulevard cáse, we would have to know precisely when notice was brought home to the condemnees, since at the very minimum that much proof would be required to tell us when the six-month period began to run on the interest. We do not wish to be' on record as saying that such six months would begin to run at such time, since we are of opinion that the Legislature intended here that the running of the six months be postponed, along with the two years on the claim, until personal notice to the condemnee. So profuse is the appropriation statute, under which this property was taken (Highway Law, § 347), with regard to notifying the condemnee of the taking, that we find no necessity for going beyond legislative words in order to reverse. Under no manner of interpretation could the State’s delay in making personal service on the condemnees at bar be justified. The State notified the claim-

ants personally approximately 22 months after the map was filed and title had passed. By the widest stretch imaginable, the appropriating statute could not condone that outrageous delay. We have searched the record and the briefs for some explanation, however slight, for that delay; not a word of excuse is offered. For 22 months the State owned the claimants ’ property before bestowing upon them the courtesy of telling them as much. The appropriating statute contemplates expeditious service of notice on the condemnee. We wonder what manner of interpretation could find a lapse of 22 months to be a reasonable requirement in the effectuation of service. The condemnees ’ house was not taken —the strip taken began at a line 5 feet northeast of the house. The claimants were in continued occupation of the house at all times, as found by the Court of Claims. Personal service could have been effected without any difficulty whatever, and the statute of appropriation provides for personal service. An interpretation would seem difficult which could find in that statute an approval of a 22-month delay in service and at the same time a punishment meted out to the condemnee for the delay brought about by the State. We would have to hold that the State’s taking of possession after title has passed constitutes notice of the taking to the condemnee — and that it is all the notice that the condemnee requires to affect a most substantial aspect of his claim: the interest on it. What constitutes such taking of possession by the State would be a question of fact for the trial court — but here, to repeat, the State never sought to litigate it. It is of small moment that the two years after which suit is barred does not begin until some time later. What consolation is it to the condemnee that he may bring suit during a long stretch of time, when the interest on his money has been suspended because of the ignorance in which he has been kept by the laxity of the State’s agents. And how may we decide that the taking of possession by the State constitutes notice to the condemnee when the Legislature itself has never so enacted but, on the contrary, expressly provided for personal notice to he served on the condemneei At bar the provision for personal notice is set forth in the very same statute that authorizes the appropriation (Highway Law, § 347). Certainly if the State has appropriated the property, it is going to take possession of it. And when it takes possession of it, the condemnee will have notice of the taking. Why were the provisions for personal notice to the condemnee enacted in the appropriating statute if the taking of possession be all that is necessary! Under such interpretation, personal service becomes a discretionary choice for the State’s ag’ent. Only the running of the two-year Statute of Limitations is held up by it. What does the State lose if personal service is never effected? The claim against the State would become absolutely static six months after the map was filed. Why should the State make personal service at all, in that case? If the claim against the State remains alive forever, the State loses nothing because of the delay. Until the claim is filed, it contains but six months’ interest and nothing more. Under such ruling, the most conscientious of State agents lose all incentive to make personal service on the condemnee expeditiously. The delay brings no loss to their principal.

Even if it were the law that the taking of possession does constitute notice to the condemnee of the fact of the taking, there is not one scrap of evidence in the record at bar which could even ground an inference of when the State took possession.

May we say that, if the State did not take possession, so that the condemnee knew nothing of the taking, what he does not know does not hurt him? That is untrue (see numbered paragraph 8, infra). And such argument assumes both of the following:

(1) that continued possession of the property taken is the automatic equivalent of interest on the claim and
(2) the condemnee is not entitled to both possession and interest.

Number (1) above is a proposition that has never been enunciated by this court. The cases which have denied a claimant interest show that there was no automatic equation of the value of possession with the amount of interest on the claim. The value of possession or the price of delay in payment was “ considered and allowed for ” (Matter of Mayor of City of N. Y., 40 App. Div. 281, 287), or the delay was taken into consideration ” in the making of the award (Matter of Department of Public Parks, 53 Hun 280), or the statutes of appropriation manifested such intent as grounded the court’s presumption that the award took into consideration the value of continued possession or the price of delay (Hamersley v. Mayor of City of N. Y., 56 N. Y. 533; Shoemaker v. United States, 147 U. S. 282). At bar the value of possession (if there was continued possession during all of the time in question, as the court assumes without foundation) was never considered because the State failed to litigate it. And there is no possibility of a presumption here. Unlike the cited cases, it was the Court of Claims and not a commission which made the award. The Court of Claims did not presume that the award took these matters into consideration because it was that court which made the award. And the Court of Claims could not have made such a presumption, because the instant statute of appropriation (Highway Law, § 347), unlike the unusual statutes that grounded the presumption in the cited cases, contemplates nothing but the immediate passing of title to the State upon filing of the map, and the immediate right of the State to take possession of the property. And the Court of Claims denied a motion by the State, after the proceeding was terminated and the award made, to amend the decision to eliminate interest beginning six months after the filing of the map until the claim was filed by the condemnees. That disposition was fully in line with precedent. Possession is not the automatic equivalent of interest. (See Matter of Westchester County Park Comm., 244 App. Div. 725.) But in our case the Appellate Division has reversed the Court of Claims.

Number (2) above, to the effect that the condemnee is not entitled to both possession and interest, is predicated on previous cases involving a most outstanding factual difference. In those cases the condemnee in possession was still the owner of the property, title had not passed; the taking was effected under the old statutes of appropriation, which passed title upon personal service of notice and not upon mere filing of the map. And possession of the land by the condemnee in those cases, we should add, was always present as a fact-, at bar the claimants’ continued possession of the appropriated parcel has not been proved, and it would of course be the burden of the State to produce evidence of it. Here what the court overlooked is the fact that title had passed to the State — that the condemnee is nothing more than a tenant. The court’s decision is that he is a tenant paying rent on the State’s enforced terms. That is the only result of holding possession (again, assuming there was possession) to he the absolute equivalent of interest. It is noteworthy that the only foundation for the assumption that the claimants continued in possession of the appropriated strip of land is a finding made by the Court of Claims, which we have previously adverted to, which had nothing to do with the appropriated strip. The court seizes upon the Court of Claims’ finding that claimants “ resided there.” That court made such finding only with reference to the house, which we may assume the claimants occupy to this day. It was uttered in the context that sought to show how easy it was for the State to make personal service on the condemnees, who continued all the while to reside in the house, which was not taken. The “ there ” clearly and unequivocally refers to the house, so that the court’s finding is in no way germane to the question of whether and until when the condemnees continued in possession of the appropriated strip.

Without any precedent in the cases, and without a word of invitation from the Legislature, the decision appealed has wrought a number of unique results. It is impossible to determine which of the following phenomena will appear in a given case, but each and every one of them is a factual prospect or a court-approved procedure engendered in this case for the first time. We set forth what the court below has accomplished by its holding:

1. Assumed that the claimants at bar continued in possession of the appropriated strip of land during all of the time in question, with no basis in the proof for the assumption.

2. Enacted that the State may, by withholding notice of the taking from the condemnee — after the taking is a fact — turn the condemnee into a paying tenant, whether he likes it or not.

3. Enacted that rent for such tenancy shall be the absolute equivalent of interest on the price of the land taken, and that the value of the enforced tenancy need not he the subject of any factual investigation looking to the determination of the land’s true rental value.

4. Enacted that notice of the taking need not be personal, but that the State may stop all interest beyond six months’ worth on the condemnee’s claim simply by filing the map and sitting back—which means that as concerns a most substantial aspect of the situation—the interest on the claim — the notice given the condemnee need not be personal service, as set forth in the appropriating statute. There need be (a) either no notice at all, or (b) only such notice as the condemnee may have from the State’s taking of possession. Which of the two the court applies to the instant case cannot be determined. Either course has been labelled satisfactory, in the alternative.

5. Created a new category of matter to be litigated in condemnation eases, in the event that (b) under paragraph 4, above, is applied. Thus, if a claimant by some obscure means can prove that he was not in possession of the appropriated land after the taking, so that it cannot be found that he had an enjoyment of it equivalent to interest on the claim (the alternative suggested by the court when the State has not taken possession), then the moment when the State does take possession becomes germane, for it apparently determines when the out-of-possession claimant had notice of the taking, and thus when the six months begins to run (after which interest stops). And what is it that will constitute the taking of possession? That is another burden of evidence suddenly imposed on condemnation litigants. If all of this seems a trifle confusing, it is.

6. Removed all incentive from the State’s agents to make prompt personal service on the condemnee, as contemplated by the statute of appropriation, by establishing rules which ensure that the State will never be the loser by its own delay. Its liability will forever be the value of the land taken as of the time of filing of the map, plus six months’ interest thereon, until the claim is filed. And if notice be not served personally on the claimants for 22 years, instead of 22 months as at bar, and the claim is not filed until after such duration, the State’s liability will still not be a penny greater. Under such rules, why should the State serve personal notice at all? What does it matter to the State that the two-year Statute of Limitations on the claim will not begin to run until after such service of notice ? If the proof is difficult, it is just as difficult after such lapse of time for the condemnee to prove the value of the land as for the State to disprove it.

7. Deprived the condemnee of the use of the time between the passing of title and his learning of its passing—time which the. condemnee might well use to search for premises more suited to his needs and tastes than those remaining to him after the State has taken what it wishes.

8. Opened the door to the absolutely unjustifiable expense of improving condemned land. This we deem the most outstanding deficiency in the court’s holding. If a condemnee remains in possession after title has passed—knowing nothing of its passing—he will frequently improve the land on the very reasonable assumption that he owns it. We would not include such improvements as the building of another house or anything of that nature, for we may assume that a survey would precede such building and we would even go so far as to assume that in the course of it a search of the County Clerk’s records would be made, which would reveal the taking by the State. But we allude to other substantial and often expensive improvements which would not involve a search of title or records: the adding of a wing to a building, the sinking of a well, the placement of a sprinkling system, the landscaping of a garden, the installation of a pond or pool, or playground equipment for children — all of the foregoing being clearly within what the condemnee justly considers the boundaries of his property. The possibilities here are vast. Who is ultimately liable for the improvements ? The condemnee or the State? Either way, the outlay is unjustified. Either the condemnee takes the loss, which is grossly unfair to him, or the people of the State sustain it, which is just as unfair to all of us. The people are entitled to expect more careful treatment of their interests, and it would certainly seem that the Legislature did not plan these unfortunate results.

We do not see in the court’s holding any foundation in precedent, in statute, in rule, in practical contemplation, or in simple fairness. We may anticipate a mass of interesting (to say the least) litigation under it. Certainly the State’s agent may elect to provide the personal notice promptly, as the statute contemplates, and that would solve everything. He did not do so here. And it would seem that there should he something more binding upon the State’s agents than their own discretion — and the statute (Highway Law, § 347), in our opinion, was intended to be so binding. Perhaps the Legislature will provide the remedy. As we see it, this case should not be so disposed of as to require a remedy.

The judgment entered on the order of the Appellate Division should he reversed, and the original judgment of the Court of Claims reinstated, with costs in this court and in the Appellate Division.

Judges Desmond, Dye and Burke concur with Judge Van Voorhis; Chief Judge Conway dissents in an opinion in which Judges Fuld and Froessel concur.

Judgment affirmed.


source: Caselaw Access Project

author: Chief Judge Conway. Desmond, J. (dissenting).

license: Public Domain

text:
    The People of the State of New York, Respondent, v. Walter Williams, Appellant.
    Argued November 6, 1958;
    decided May 14, 1959.

      David Kashman and Matthew H. Brandenburg for appellant.
    I. It was reversible error to deny defense counsel the right to examine Giles’ Grand Jury testimony-to establish additional contradictions. (People v. Walsh, 262 N. Y. 140; Jencks v. United States, 353 U. S. 657; People v. Nicoll, 3 A D 2d 64; People v. Pauley, 281 App. Div. 223; People v. Dales, 309 N. Y. 97; People v. Davis, 52 Mich. 569; People v. Schainuck, 286 N. Y. 161; Snyder v. Massachusetts, 291 U. S. 97.) II. The wire-tap order was void because contrary to law and all evidence adduced with relation thereto should have been ruled inadmissible by the court sua sponte. (Pennsylvania v. Nelson 350 U. S. 497; Hill v. Florida, 325 U. S. 538; Hines v. Davidowits, 312 U. S. 52; Matter of Interception of Tel. Communications, 9 Misc 2d 121.) III. The exclusion.of medical testimony to impeach Giles’ credibility was prejudicial error. (United States v. Hiss, 88 F. Supp. 559; Ellarson v. Ellarson, 198 App. Div. 103; State v. Fong Loon, 29 Idaho 248; People v. Webster, 139 N. Y. 73; Effinger v. Effinger, 48 Nev. 205.) IV. The prosecutor’s characterizations of defendant as a “ drug seller ”, etc., were highly prejudicial and deprived him of a fair trial. (Berger v. United States, 295 U. S. 78; People v. Tassiello, 300 N. Y. 425; Steele v. United States, 222 F. 2d 628; Commonwealth v. Capella, 322 Pa. 200; People v. Carborano, 301 N. Y. 39; People v. Esposito, 224 N. Y. 370; People v. Posner, 273 N. Y. 184.) V. This court, in disposing of the appeal, may and should consider the cumulative force of all the errors which transpired during the course of the trial. (Dresch v. Elliott, 137 App. Div. 252; People v. Cascone, 185 N. Y. 317; Bollenbach v. United States, 326 U. S. 607.)

      Frank D. O’Connor, District Attorney (Benj. J. Jacobson of counsel), for respondent.
    I. The case of Jencks v. United States (353 U. S. 657) is not controlling upon the States. In any event, the rule in the Jencks case does not apply to Grand Jury testimony and, even if the Jencks case were controlling upon the States, no error was committed by the trial court in refusing defense counsel an examination of all of Giles’ Grand Jury testimony. (People v. Walsh, 262 N. Y. 140; People v. Davis, 52 Mich. 569; State v. Archer, 32 N. M. 319; Riggins v. State, 125 Md. 165; State v. Guagliardo, 146 La. 949; Centoamore v. State, 105 Neb. 452; Arnstein v. United States, 296 F. 946; People v. Dales, 309 N. Y. 97; Erie R. R. Co. v. Tompkins, 304 U. S. 64; Palko v. Connecticut, 302 U. S. 319.) II. Even if the wire-tap order was void, its introduction into evidence did not constitute reversible error in the absence of objection thereto. In any event, the intercepted telephone conversation was nevertheless admissible in evidence in this State. (Matter of Interception of Tel. Communications, 9 Misc 2d 121; People v. Adams, 176 N. Y. 351; People v. Before, 242 N. Y. 13, 270 U. S. 657; People v. Richter’s Jewelers, 291 N. Y. 161; Wolf v. Colorado, 338 U. S. 25; Matter of Harlem Check Cashing Corp. v. Bell, 296 N. Y. 15; People v. Stemmer, 298 N. Y. 728; People v. Saperstein, 2 N Y 2d 210; Schwarts v. Texas, 344 U. S. 199; Nardone v. United States, 302 U. S. 379; Weiss v. United States, 308 U. S. 321.) III. The attempted testimony of defense witness Dr. Shapley as to Giles’ credibility because of Giles’ drug addiction was properly excluded. (People v. Bell, 138 Cal. App. 2d 150; Kelly v. Maryland Cas. Co., 45 F. 2d 782; People v. Forte, 279 N. Y. 204; State v. Fong Loon, 29 Idaho 248; Effinger v. Effinger, 48 Nev. 205; United States v. Hiss, 88 F. Supp. 559; Williams v. United States, 6 Ind. Terr. 1; Botkin v. Cassady, 106 Iowa 334; State v. King, 88 Minn. 175; State v. Gleim, 17 Mont. 17; State v. Robinson, 12 Wash. 491.) IY. No prejudicial error was committed during the District Attorney’s summation and defendant was not deprived of a fair trial. (People v. Pindar, 210 N. Y. 191; People v. Reade, 1 N Y 2d 459; People v. Reimann, 266 App. Div. 505; People v. Lovello, 1 N Y 2d 436; People v. Tassiello, 300 N. Y. 425; Steele v. United States, 222 F. 2d 628; People v. Fielding, 158 N. Y. 542; United States v. Warren, 120 F. 2d 211; Az Din v. United States, 232 F. 2d 283, 352 U. S. 827.)
   Chief Judge Conway.

The defendant Walter Williams was convicted of selling a quantity of heroin at his home to one James Giles on the evening of July 17, 1956. Giles, the principal witness for the People, testified to the actual sale by the defendant, and his testimony was substantially as follows. At about 5:30 p.m. on the day in question Giles telephoned the defendant at his home and, during a cryptic conversation in which they spoke in terms of laundry, the defendant told Giles how to come by bus to his home in East Elmhurst, Long Island. Giles came from Manhattan to the defendant’s home and arrived there at approximately 7:00 p.m. He was greeted at the door by the defendant, and the two of them went into the defendant’s living room where he received a package of heroin from the defendant for which he paid $10 and promised $10 more. They had a conversation during which the defendant told Giles that one Jackson, from whom Giles had been buying narcotics, had been drinking heavily and was no longer responsible. He told Giles that he was thereafter to buy the narcotics from the defendant himself or his wife at their home, and that Giles was to call him before coming to his home but was never to speak in terms of narcotics but rather in terms of laundry, washing windows or something to that effect. Giles left by the back entrance, returned to Manhattan by bus, and at 125th Street and Lexington Avenue entered a taxicab when he was apprehended by three detectives who had followed him from defendant’s home. Except for the actual purchase in the defendant’s home, Giles’ testimony was substantially corroborated by three detectives, assigned to the Narcotics Squad, who had been keeping the defendant’s home under surveillance. These detectives testified that they monitored a tap on the defendant’s telephone pursuant to court order for what appears to have been at least 15 days before the day in question; that they waited for Giles to come to the defendant’s home and kept him under observation as he went to, and entered, the defendant’s homej-and that they followed Giles as he left the defendant’s home and along his bus trip to Manhattan where they apprehended him, took him to the police station, and found on his person a package of white powder which proved to be heroin. Other witnesses for the People testified to such things as the affidavit upon the basis of which a Supreme Court Justice signed an order authorizing a wire tap on the defendant’s phone, the installation of the wire-tap equipment, the analysis of the white powder found on Giles’ person, and the arrest of the defendant on August 28, 1956.

At the trial the credibility of Giles was strenuously attacked by defense counsel. One attempt at impeachment was based upon Giles’ history of narcotic addiction. For about five years prior to the sale in question, Giles had been addicted to the daily use of heroin by introducing the drug hypodermically into his veins and muscles. However, he took no such injections on the day in question nor at any time thereafter up to and including the day he testified. He had been in jail all of this time — a period of about four months. After his arrest on the day of the sale the police did permit him to receive two injections of “ dope ” at Bellevue Hospital. But at no time since then had he received in any manner a narcotic drug of any kind. Furthermore, he testified at the trial that he was no longer addicted to narcotics. This was the posture of the ease relating to Giles’ addiction when the defendant called a physician to the stand to give testimony on the effects of narcotic addiction upon the veracity of addicts.

The questions propounded to this doctor were extremely vague. Thus, defense counsel asked the doctor to give his opinion on the “characteristics” and “personality changes” of an addict, and on whether “ a person addicted to [drugs] is — as a mainliner — can testify to facts in a normal manner ”. Prosecution objections were sustained. The Trial Judge appears to have been most patient in this matter, and he made several attempts to ascertain the purpose of these questions. Defense counsel first explained his purpose in this way: “ My purpose is this, your Honor. The question of the credibility of the witness Giles based on medical experience and opinion of this doctor.” His next explanation was that part of his purpose was to have the doctor testify as to whether or not Giles was telling the truth. Later he told the court, “ I want him to give us a medical opinion as to the characteristics of a person who is addicted to heroin as a mainliner ’ ’, and he said, 1 ‘ I submit I have a right to show this Jury by medical proof that a person such as Giles who is addicted to heroin, because of his condition is not worthy of belief.” And his last explanation was: “I’m not talking about credibility, your Honor. I’m talking about medical opinion.” Throughout the examination of this witness and the intervening colloquies, the Trial Judge insisted that this witness could not pass upon the credibility of another witness, and that Giles’ credibility was solely for the jury to determine. It is upon this record that appellate counsel now strenuously argues that the exclusion of this doctor’s testimony is prejudicial error.

It is a cardinal and well-settled principle that offers of proof must be made clearly and unambiguously. “Before a party excepts on account of the rejection of evidence, he should make the offer in such plain and unequivocal terms as to leave no room for debate about what was intended. If he fail to do so, and leave the offer fairly open to two constructions, he has no right to insist, in a court of review, upon that construction which is most favorable to himself, unless it appears that it was so understood by the court which rejected the evidence.” (Daniels v. Patterson, 3 N. Y. 47, 51, emphasis added; see, also, Hellreigel v. Manning, 97 N. Y. 56, 60-61; Young v. Anthony, 119 App. Div. 612, 618 [dissenting opinion]; 6 Carmody-Wait, New York Practice, pp. 540-541.) And the eloquence of appellate counsel must bend to the weight of the record whether it be favorable or unfavorable to his argument. We have carefully examined this record to ascertain the Trial Judge’s understanding of the offers of proof here. He repeatedly ruled that this doctor could not testify flatly that Giles was not telling the truth. We discover further, during defense counsel’s summation, a statement by the Trial Judge that the main purpose of this doctor was “ to establish that an addict could not tell the truth.” The record permits no broader review in this regard, therefore, than upon the following two questions: Was it error for the Trial Judge to exclude the doctor’s testimony (1) that main-liners addicted to heroin are unworthy of belief; and (2) that, therefore, Giles was unworthy of belief? There is no question properly presented here regarding the admissibility of expert testimony on the effects of narcotic addiction upon the memory or perceptive powers of the addict.

Taking the second question first, we hold that the Trial Judge was clearly correct in refusing to permit the doctor to testify flatly that Giles’ testimony was not entitled to credit. Just as the Trial Judge ruled, whether or not Giles was telling the truth was a conclusion to be drawn solely by the jury, and an opinion which was exclusively their province to render. Upon this point there can be no doubt, and accordingly this court is unanimous in so holding. Returning to the first question, that is the one concerning which we are not all in agreement. The only proof here, as noted earlier, is that Giles had taken no narcotics of any kind for about four months before the trial, and that he was no longer addicted to drugs. However, defense counsel attempted to show that Giles was still using narcotics by describing to the doctor Giles ’ behavior on the witness stand and asking him whether such behavior evidenced the influence of, or addiction to, narcotics. A prosecution objection was sustained. In view of this, we assume that the doctor would have been able to testify affirmatively, and accordingly we reach the question of whether a doctor may testify that narcotic addicts are unworthy of belief in the sense that they are, in the words of appellate counsel, pathological liars.

We have carefully examined numerous authorities upon the subject of impeachment of witnesses by proof of drug addiction and its effects. (See Wilson v. United States, 232 U. S. 563; Chicago & N. W. Ry. Co. v. McKenna, 74 F. 2d 155; 158; Kelly v. Maryland Cas. Co., 45 F. 2d 782, affd. 45 F. 2d 788; People v. Webster, 139 N. Y. 73; Standard Oil Co. v. Carter, 210 Ala. 572; People v. Bell, 138 Cal. App. 2d 7, 10; Webb v. People, 97 Col. 262; Nelson v. State, 99 Fla. 1032, 1038; Eldridge v. State, 27 Fla. 162, 183; Gordon v. Gilmore, 141 Ga. 347; State v. Fong Loon, 29 Idaho 248; People v. Hamby, 6 Ill. 2d 559; People v. Crump, 5 Ill. 2d 251; Williams v. United States, 6 Ind. Terr. 1; State v. Prentice, 192 Iowa 207; Markowitz v. Markowitz, 290 S. W. 119, 122 [Mo. App.]; State v. King, 88 Minn. 175; State v. Gleim, 17 Mont. 17; Effinger v. Effinger, 48 Nev. 205; State v. Juliano, 103 N. J. L. 663; Cannon v. Territory, 1 Okla. Cr. 600; State v. Jordan, 146 Ore. 504; Katleman v. State, 104 Neb. 62, 64; Commonwealth v. Morrison, 157 Pa. Superior Ct. 366; Franklin v. Franklin, 90 Tenn. 44, 49; Beland v. State, 86 Tex. Cr. Rep. 285; Anderson v. State, 65 Tex. Cr. Rep. 365; Lankford v. Tombari, 35 Wn. [2d] 412; State v. Smith, 103 Wash. 267; State v. Schuman, 89 Wash. 9; State v. Concannon, 25 Wash. 327; State v. Robinson, 12 Wash. 491; State v. White, 10 Wash. 611; 3 Wigmore, Evidence, § 934; 15 A. L. R 912; 52 A. L. R. 2d 848; 98 C. J. S., Witnesses, § 513, p. 420; 70 C. J., Witnesses, §§ 926, 1080; 58 Am. Jur., Witnesses, § 705; 3 Ore. L. Rev. 81; 16 So. Calif. L. Rev. 333.) Of the cases upon the point raised here, while some tend to support the admissibility of such evidence (State v. Fong Loon [Idaho, 1916], supra; Effinger v. Effinger, supra; cf. Markowitz v. Markowitz, supra; Anderson v. State, supra), we think it is fair to say that the preponderance holds such testimony to be excludable. (Williams v. United States, supra; Kelly v. Maryland Gas. Co., 45 F. 2d 782, affd. 45 F. 2d 788, supra; People v. Bell, supra; State v. Robinson, supra; Cannon v. Territory, supra; Katleman v. State, supra; State v. King, supra.) Except for State v. Fong Loon and Kelly v. Maryland Gas. Co. there is very little written in the cases upon the subject. In the Fong Loon case, decided in 1916, the court held as reversible error the refusal of the Trial Judge to permit cross-examination of a witness as to his use of opium and yen she. The court further held that independent proof is admissible to show what if any effects the use of drugs had ‘@ or was more than likely to have upon the mental balance of this witness, the truthfulness of his testimony, and his capacity to remember * # (P. 258, emphasis added.) The court considered it to be common knowledge that narcotics addicts are ‘1 notorious liars ’ ’ and that £ The habit of lying comes doubtless from the fact that the users of those narcotics pass the greater part of their lives in an unreal world, and thus become unable to distinguish between images and facts, between illusions and realities.” (Ibid.) In support of this view the court quoted from a medical treatise of earlier vintage as follows: “In Wharton & Stille’s Medical Jurisprudence, 3d ed., sec. 1111, it is said that £ Of the mental symptoms, ’ in the case of a morphinomaniac or other habitual users of drugs, the most characteristic, perhaps, are the moral perversions. The chronic morphinomaniac is often a confirmed liar. The truth is not in him, . . . There is something quite pathological in this mendacity; the lying is unblushing, inexpert, spontaneous, — a sort of second nature. . . . They have been so often narcotized, and thus cut off from actualities, living in a dream-state, that they do not seem able to recognize realities when they see them. ’ ” (Ibid.) In the later Kelly case (45 F. 2d 782 [U. S. Dist. Ct., W. D., Va.]), decided in 1929, it was offered to have a physician testify as follows: 1 £ My opinion is that an excessive use of morphine, such as indicated, might tend to undermine the morale df a person, especially for truthfulness, and make them, cunning. It also tends to make them unreliable. I might also say that a drug addict might feign anything.” (p. 783). This was held inadmissible. The court very carefully examined numerous treatises on the subject of narcotism and its relation to veracity, and concluded: ‘ On the mere reading of the foregoing excerpts it is manifest that there is now no consensus of medical opinion to the effect that morphine addicts are usually abnormally untruthful in respect to matters not connected with the vice.” (p. 785). These cases, of course, are opposed in their conclusions. But they do have a common ground in their approach, each recognizing that the rule of evidence depends upon scientific acceptance of the opinion offered.

The question presented here has never been decided by this court nor, as far as we are able to ascertain, by any other court in this State. This is truly a question of novel impression, of considerable difficulty, and it is only after long and serious deliberation that we hold inadmissible expert testimony that narcotics addicts of the same type as a witness are unworthy of belief in the absence of a clear and convincing showing to the full satisfaction of the Trial Judge that such is the consensus of medical and scientific opinion. The reliability of such a thesis must be clearly established before a jury may be subjected to its influence.

It is true there is usually no requirement that before an expert may give an opinion he must demonstrate that most, all, or many other experts would agree. But the expert, testimony preferred here is not usual at all. It is not as to a fact in issue, as such, but as to a collateral matter, viz., the credibility of a witness. Credibility is, as the cases have repeated and insisted from the dawn of the common law, a matter solely for the jury. Cases frequently turn upon what credence the jury gives to a particular witness. In a case such as this where only one witness has testified to the crime, the case stands or falls according to the jury’s opinion of his credibility. And in a case involving a narcotics charge the principal witness will very often be an addict. The necessity, therefore, for caution in expanding in this case upon the settled and well-tested methods of impeachment becomes apparent. Such expert testimony would unquestionably have great impact upon a jury and, to some unknowable extent, replace their judgment by the opinion of the expert which, it is essential to note, is an opinion, at least in form, of the credibility of a class and not of the witness himself. And the inference would be that the witness, because he is a member of a class, is himself mendacious and unworthy of belief. Quite obviously, therefore, it is essential that the generalization be more than one man’s opinion.

The foregoing leads also to this consideration. How complex and confusing would a trial become for the jury if it were faced with conflicting expert opinions, each with scientific authority to support it, upon the collateral matter of credibility. The first question would be the credibility of the experts, and then the credibility of the witness. The battle of the experts might well be such that the jury would lose sight of the issues or, at the very least, would tend to regard the opinion of the expert as determinative of the credibility of the witness rather than to consider it only as one factor of many to be considered in concluding whether a witness is telling the truth. Laymen, even with the aid of a charge by the court, may not reasonably be expected to apply all of the refined legal reasoning which would be necessary to place such testimony in its proper perspective and give it only its limited significance. It was with good reason, therefore, that other courts have declined to permit such testimony on the ground that it overdevelops a collateral matter and tends to obscure the real issues (State v. King, 88 Minn. 175, supra; Katleman v. State, 104 Neb. 62, 64, supra). But we do not go so far here as to hold that such expert testimony may never be admissible only because it is upon a collateral matter. For justice would seem to require that, if it is demonstrated to be the scientific consensus that addicts are unworthy of belief, the defendant is entitled to place that fact before the jury. As the learned Professor Wigmore wrote: ‘ ‘ There must first be proof of general scientific recognition that they [scientific methods of determining credibility] are valid and feasible.” (3 Wigmore, Evidence, § 875, p. 368.) If there were general scientific recognition of the thesis that narcotics addicts are generally unworthy of belief, that at least would warrant the influence of the expert upon the jury and would, we think, tend to avoid or at least reduce conflicting expert opinion.

The caution which we exercise here is justified by scientific-works. Dr. Lawrence C. Kolb, reputed to be one of the world’s leading authorities upon this subject (De Ropp, Drugs and the Mind, p. 145. The author states that Dr. Kolb’s knowledge is “ unexcelled ”. [p. 149]), has this to say: “ No addict who receives an adequate supply of opium and has money enough to live is converted into a liar or a thief by the direct effect of the drug itself.” (9 Mental Hygiene 74, 75.) And we find in a treatise co-authored by Dr. Kolb and published in 1958 the foEowing: “ This moral and social deterioration is not a result of the direct effect of narcotics * * (Noyes & Kolb, Modern Clinical Psychiatry 567.) We read elsewhere: “ * * * I find them [narcotics addicts], as a class, not too unpleasant to deal with and not as completely dishonest as one is led to believe * * (Hawkins, Opium Addicts and Addiction 40 [1937].) Again, Dr. Kolb writes: “In one group of twenty-five professional men who were carefuEy studied from the standpoint of deterioration, seventeen had suffered no apparent mental or moral deterioration.” (Kolb, Pleasure and Deterioration from Narcotic Addiction, 9 Mental Hygiene 699, 713.) It is stated by another: “ What is true of one man who has opiate addiction may be absolutely false of another. One narcotic addict is honest, competent, truthful and inteEigent. Another is dishonest, incompetent, untruthful and incapable of appreciation or self-control. Neither the one set of attributes, nor the other, is pecuEar to narcotic addicts. They are simply personal attributes possessed by different men and types of men who may or may not be narcotic addicts.” (Bishop, The Narcotic Drug Problem, pp. 23-24 [1920].) Similar statements or suggestions may be found elsewhere (Maurer & Vogel, Narcotics and Narcotic Addiction, pp. 216, 238 [1955]; Yost, The Bane of Drug Addiction 1 [1954]; Ausubel, Drug Addiction: Physiological, Psychological and Sociological Aspects, 38 [1958].) There is more we could add but it would only be cumulative. The foregoing is more than sufficient to establish the wisdom of the rule which we are here announcing.

It should be emphasized that the narcotic addict may be impeached in the usual manner. If his narcotism has led him to a way of life and pattern of behavior which mark him as unworthy of credit, a proper and adequate presentation may be made to the jury under the existing rules governing the impeachment of witnesses. Furthermore, he is before the jury and his demeanor is the object of their scrutiny. And we cannot see that it should be any more difficult for a jury to determine the credibility of an addict than it is to detect falsehoods in nonaddicts. Here, the credibility of Giles was attacked by proof of a prior inconsistent statement, his history of addiction, a substantial record of convictions, and a searching cross-examination. In addition, defense counsel on summation conducted an unrelenting attack upon Giles’ credibility during Avhich he referred to him as an “ ex-convict ”, a drug addict of the first class ”, a first class bum ”, a “ liar ”, “ cheat ”, “ thief “ ex-procurer of men ”, and implying throughout that he Avas the instrument of the police in “ framing ” the defendant. Yet, the jury obviously believed Giles whose testimony Avas satisfactorily consistent and in many respects corroborated.

We Avill not prolong this opinion by a discussion of the other ■ arguments made by appellant. They are not persuasive, and the judgment of conviction should, therefore, be affirmed.

Desmond, J. (dissenting).

Since the principal and indispensable prosecution Avitness was shown at the trial to have been for years addicted to the narcotic drug heroin, it was grave error for the trial court to refuse to permit defendant’s qualified medical expert witness to testify as to the effect of such addiction on mental and moral qualities related to testimonial reliability.

Before discussing the law point, we will first dispose of the suggestion that the point was not properly raised at the trial by appropriate questions. Actually, defense counsel went to great lengths and used every possible approach and every form of Avords in a vain effort to convince the court of the admissibility of the physician’s opinion. The prosecution’s objections Avere sustained every time. Defendant’s attorney told the court: “I want him to give us a medical opinion as to the characteristics of a person who is addicted to heroin as a mainliner.” (A “mainliner” is one who like the witness Giles injects the drug hypodermically.) Again, the defense stated to the court: I submit I have a right to show this Jury by medical proof that a person such as Giles who is addicted to heroin, because of his condition is not worthy of belief.” His questions, all ruled out, included this one: ‘ Doctor, would you tell us, if you can, please, what changes in personality occur in a person addicted to heroin? ” Again, he asked the witness to state the “ characteristics of a person addicted to drugs ’ ’ and asked him for a ‘ ‘ medical opinion as to whether or not a person addicted to [drugs] is — as a mainliner — can testify to facts in a normal manner Counsel carefully explained to the court that he was not asking for testimony as to whether such a person as Giles could tell the truth but ‘ ‘ on the characteristics of a person addicted to drugs The trial court would allow no investigation at all of this subject or any part of it.

The general rule, based on justice, logic and common sense, is ‘ that anything having a legitimate tendency to throw light-on the accuracy, truthfulness and sincerity of a witness ’ ’ should be accepted in evidence (98 C. J. S., Witnesses, §§ 460, 470; see People v. Webster, 139 N. Y. 73, 86; Quinlan v. City of Utica, 11 Hun 217, 219, affd. 74 N. Y. 603; Williams v. United States, 3 F. 2d 129; Model Code of Evidence, rule 106). How can it be doubted that the opinion sought to be elicited here might cast such light if accepted by the jury? Our own court, in People v. Webster (139 N. Y. 73, 87, supra), referred to the ‘ ‘ well-known properties ” of a narcotic to ‘1 induce mental confusion ”. In Webster, our court, referring this time to a defense witness in a criminal case, ruled (p. 87) that “ the People were entitled to give independent proof of the extent to which this habit had control of her ”. Citing our Webster decision, the Supreme Court in Wilson v. United States (232 U. S. 563, 567, 568) said as to a witness that the fact and extent of addiction ‘ ‘ had a material bearing upon her reliability as a witness.” In the present case the fact had been established and the defense wished to take the next step and show the jury the relation of that fact to credibility. Jurors are not necessarily familiar with such matters and the fact of addiction might be meaningless to them unless the impairment therefrom was described to them by one who knew the effects of heroin injections (see Weaver v. United States, 111 F. 2d 603; Gordon v. Gilmore, 141 Ga. 347, 348).

In Anderson v. State (65 Tex. Cr. Rep. 365, 367) the court said that if it could be shown that ‘ ‘ the witness was a cocaine fiend and to such an extent that it would impair her mental and moral sensibilities ” that would be a legitimate inquiry for the jury. Other authorities holding or indicating the admissibility of expert evidence such as was here rejected are Vamvas v. United States (13 F. 2d 347); Chicago & N. W. By. Co. v. McKenna (74 F. 2d 155); State v. Gleim (17 Mont. 17); State v. Prentice (192 Iowa 207); Effinger v. Effinger (48 Nev. 205); Beland v. State (86 Tex. Cr. App. 285); State v. Concannon (25 Wash. 327); State v. Schuman (89 Wash. 9); State v. Smith (103 Wash. 267); Lankford v. Tombari (35 Wn. [2d] 412); and see People v. Bell (138 Cal. App. 2d 7) which limited such opinion testimony to a showing that the witness’ mental powers were impaired. Kelly v. Maryland Cas. Co. (45 F. 2d 782) is sometimes cited as an authority the other way but the Circuit Court of Appeals affirmed on a different point and did not pass on our question (see 45 F. 2d 788).

There is no New York case directly in point. The leading American case is State v. Fong Loon (29 Idaho 248, 258). The Idaho court thus explained its use of such opinion evidence: “We believe it will be admitted that habitual users of opium, or other like narcotics, become notorious liars. The habit of lying comes doubtless from the fact that the users of those narcotics pass the greater part of their lives in an unreal world, and thus become unable to distinguish between images and facts, between illusions and realities.” The court referred (p. 259) to “ the use of opium or any other like narcotic, well known to distort the intellect, reduce the capacity of an individual to remember and correctly relate incidents, as well as tending to create moral perversion in him.” Subject to investigation on the trial, it was ruled, was “ his power and inclination to be truthful.” Wigmore on Evidence (3d ed., Vol. 3, § 924a, and see § 924b) speaks of pathological lying and says that expert evidence thereof should be admitted.

Two minor criticisms of this kind of proof can be disposed of quickly. Of course, the taking of such an opinion raises a collateral issue but though it “ may take a long time to try, yet, if necessary to the full development of the truth, the person charging insanity is entitled to an opportunity to prove it, if he can ’ ’ (Ellarson v. Ellarson, 198 App. Div. 103, 107, citing other New York decisions including Livingston v. Kiersted, 10 Johns. 362). We should, therefore, not follow State v. King (88 Minn. 175) or Katleman v. State. (104 Neb. 62) which, relying on King, rejected proof of the unreliability of an “opium eater” as bringing in a “collateral issue”. And the party offering the proof need not show that it represents a concensus, or generally accepted view. It is enough that it is not totally irrational or obviously outside any known area of expert opinion. Such is not the situation as to drug addiction. “ The chronic morphinomaniac is often a confirmed liar. The truth is not in him, especially as to himself and his habits. There is something quite pathological in this mendacity; the lying is unblushing, inexpert, spontaneous — a sort of second nature” (Wharton & Stille’s Medical Jurisprudence, 5th ed., Vol. 1, § 1111, p. 878). A more recent authority, Dr. Victor H. Vogel, Medical Officer in Charge of the Public Health Service Hospital in Lexington, Kentucky, writes in “ Facts about Narcotics ” (p. 32): “ Forced to resort to cheating and illegal activity, addicts are notorious for the ease and frequency with which they lie.” That may not be the only view held by experts, but why should that keep it from the ears of the jurors?

I see no escape from the conclusion that this was a grave error seriously limiting the jury’s supply of pertinent and important information.

The judgment should be reversed and a new trial ordered.

Judges Dye, Froessel, Van Voorhis and Burke concur with Chief Judge Conway; Judge Desmond dissents in an opinion in which Judge Fuld concurs.

Judgment affirmed.


author: Desmond, J.

text:
    John Tarolli, Respondent, v. Westvale Genesee, Inc., et al., Appellants.
    Argued April 7, 1959;
    decided May 21, 1959.

      George H. Bond for appellants.
    I. By reason of the descriptions in the deeds to plaintiff, defendants, and other abutting land owners, defendants, as a matter of law, acquired an easement or right of way over the road. (Collins v. Barker, 286 App. Div. 349; Ranscht v. Wright, 9 App. Div. 108, 162 N. Y. 632; Matter of Opening Eleventh Ave., 81 N. Y. 436; Kenyon v. Hookway, 17 Misc. 452, 21 App. Div. 342; Lewisohn v. Lansing Co., 119 App. Div. 393.) II. As a matter of law, the intent of the parties was to grant an easement to Westvale Genesee, Inc. (Mencher v. Weiss, 306 N. Y. 1; Hotchkiss v. National City Bank of N. Y., 200 F. 287.)

      Daniel F. Mathews for respondent.
    I. There was nothing-informal about this sale. II. A covenant is not implied in a conveyance of real property whether the conveyance contains any special covenant or not. (Chisholm v. Muller, 234 App. Div. 102; Trowbridge v. Ehrich, 191 N. Y. 361; Matter of City of New York, 209 N. Y. 344; Ansorge v. Belfer, 248 N. Y. 145; Monogram Development Co. v. Natben Constr. Co., 253 N. Y. 320; Stirnweis v. Cacioppo, 258 N. Y. 68; Kehres v. City of New York, 162 App. Div. 349; Brzozowski v. Boutinger, 181 Misc. 379; O’Leary v. City of Glens Falls, 128 App. Div. 683, 200 N. Y. 218.) III. There was no intention to convey any right or property beyond the property described in the contract or deed. IV. There was never any intention to grant a right of way to defendants over the private road. (Ansorge v. Belfer, 248 N. Y. 145; Lido Colony Assn. v. Shelbourne-Grand Hotel Co., 284 App. Div. 1058.) V. The road herein was never used for public purposes and no public easement was ever acquired by the Village of Solvay or others. (Matteson v. Johnston, 139 App. Div. 859; Lynbrook v. Frey, 217 App. Div. 164; Speir v. Town of New Utrecht, 121 N. Y. 420; Johnson v. City of Niagara Falls, 230 N. Y. 77.)
   Desmond, J.

A summary of the proof in this case is to be found in the dissenting opinion at the Appellate Division (6 A D 2d 848) and need not be repeated here. There was strong evidentiary support for the affirmed finding of fact that the parties in the 1954 transaction did not intend that the vendees should acquire thereby a right of way easement as to the private road or lane in dispute. We, therefore, deal with the assertion of those vendees that as matter of law such an easement was implied. The principal reliance of appellants is on the description of the westerly boundary as running “ along the east boundary ” of the private road. There was, however, no mention of an easement. We hold that this language of description did not require the implication of such an easement.

One who claims an implied easement has the burden of establishing all the facts necessary to support it (Real Property Law, § 251; Zeiger v. Interborough R. T. Co., 254 App. Div. 908, affd. 280 N. Y. 516; Root v. Conkling, 199 App. Div. 90, 93). We do not have here the situation of a grantor subdividing his property and selling lots bounding on a street shown on his subdivision map (Wiggins v. McCleary, 49 N. Y. 346; Matter of Opening of Eleventh Ave., 81 N. Y. 436; Matter of Opening of St. Nicholas Terrace, 143 N. Y. 621). Nor is this a case where a private right of way has been in use for many years and the surrounding circumstances show that it must have been the intent of the parties to give the grantee continued use of the passageway (Ranscht v. Wright, 9 App. Div. 108, affd. 162 N. Y. 632). Merely bounding premises by a road (for purposes of description like using any other mark or monument) “ is very different from selling by reference to a map or plat on which the grantor has laid out streets ” (King v. Mayor of City of New York, 102 N. Y. 171, 175). The controlling authorities say that the claim of an easement solely by implication usually raises a question of intent to be determined in the light of all the circumstances, and that running a boundary along a road is one such circumstance only (Matter of City of New York [Northern Blvd.], 258 N. Y. 136,147, 148, 149; Erit v. Sea Gate Assn., 259 N. Y. 466, 470; Matter of City of New York [Harrison Ave.], 267 N. Y. 64, 78).

We affirm on the ground that the judgment below is soundly based on the finding of fact that there was in this instance no intent to grant an easement.

The judgment should he affirmed, with costs.

Chief Judge Conway and Judges Dye, Fuld, Froessel, Van Voorhis and Burke concur.

Judgment affirmed.


author: Dye, J. Froessel, J. (dissenting).

text:
    Josephine Personeni, Respondent, v. Cyrus Aquino, Defendant, and John J. McCloskey, as Sheriff of the City of New York, Appellant.
    Argued January 7, 1959;
    decided May 21, 1959.

      Sidney Posner and A. G. Graysel for appellant.
    I. When the levy and execution herein became void by operation of law because of plaintiff’s failure to comply with section 687-a of the Civil Practice Act, it constituted and was equivalent to the execution being “vacated or set aside ” within the terms and meaning of subdivision 19 of section 1558 of the Civil Practice Act entitling the Sheriff to poundage thereunder. (Lawrence Constr. Corp. v. State of New York, 293 N. Y. 634; Matter of Rathscheck, 300 N. Y. 346; Matter of Deth v. Castimore, 245 App. Div. 156; Jackson v. Citizens Cas. Co., 252 App. Div. 393; Prudential Ins. Co. v. Stone, 270 N. Y. 154; Fosdick v. Globe Ind. Co., 189 App. Div. 696; Manni v. Shirtcraft Co., 6 Misc 2d 925; Matter of Dempsey v. Lynch Co., 175 Misc. 710, 261 App. Div. 829; Hathaway v. Howell, 54 N. Y. 97; Smith v. Smith, 60 N. Y. 161; Walker v. Henry, 85 N. Y. 130.) II. The failure of plaintiff to comply with subdivisions 6 and 7 of section 687-a constituted interference, entitling the Sheriff to poundage regardless of plaintiff’s explanation for such noncompliance. (Bolton v. Lawrence, 9 Wend. 436; Parsons v. Bowdoin, 17 Wend. 14; Campbell v. Cothran, 56 N. Y. 279; Flack v. State of New York, 95 N. Y. 461; Benedict v. Wright, 19 Hun 27; Zarski v. Wohl & Cie, 186 Misc. 824.) III. Poundage is predicated on the value of the property levied upon and in case of a debt the unpaid amount thereof is prima facie its value. (Potter v. Merchant’s Bank, 28 N. Y. 641; Booth v. Powers, 56 N. Y. 22; Western R. R. Co. v. Bayne, 75 N. Y. 1; Stark v. Public Nat. Bank, 123 Misc. 647; Outhouse v. Outhouse, 13 Hun 130; Blumenthal v. Lewy, 82 App. Div. 535.) IV. The court upon motion may direct that an execution creditor and his attorney shall pay poundage. (Manni v. Shirtcraft Co., 6 Misc 2d 925; Myers v. Grove, 242 App. Div. 637; McCloskey v. Bril, 1 N Y 2d 755.)

      Jacob D. Fishman for respondent.
    I. Interference by an executant to warrant judicial imposition of poundage fees is interference that is the equivalent of collection. Mistake or mistaken judgment of an executant or her attorney is not such interference. (Flack v. State of New York, 95 N. Y. 461; Nelson v. Board of Higher Educ., 263 App. Div. 144, 288 N. Y. 649; Bose v. United Employment Agencies, 200 Misc. 176; Chamberlain v. Western Transp. Co,, 45 Barb. 218, 44 N. Y. 305; Campbell v. Cothran, 56 N. Y. 279; Ryle v. Falk, 24 Hun 255, 86 N. Y. 641; Miller v. Miller, 108 App. Div. 310; Williams v. Kahler, 274 App. Div. 984; Stojowski v. Banque de France, 294 N. Y. 135.) II. Assessment of poundage against an executant’s attorney may only be made in a plenary proceeding. (Myers v. Grove, 242 App. Div. 637.)
   Dye, J.

In this appeal, by permission, we deal with the right of a Sheriff to collect or receive poundage fees on a duly levied execution for debt on which no collection had been made, because the execution had been rendered null and void by operation of law. In this instance it was due to the circumstance that the judgment creditor failed to take action to collect the debt within 120 days, or to obtain an order extending the time to do so as required by subdivision 7 of section 687-a of the Civil Practice Act.

The right of a Sheriff to collect and receive poundage is wholly statutory (Civ. Prac. Act, § 1558). In substance that section provides a percentage fee based on the amounts actually collected (subd. 20) and, when no collection has been made, the Sheriff may, nonetheless, be entitled to poundage upon the value of the property levied upon (1) where a settlement is made after a levy, not exceeding the sum at which the settlement is made, or (2) where an execution has been “vacated or set aside ” upon the value of the property levied not exceeding the amount specified in the execution (subd. 19 as it then was).

The essential facts are not in dispute. The plaintiff-respondent Personeni was awarded a judgment by the Supreme Court, New York County, in the sum of $16,766.88 against the defendant Cyrus Aquino. Examination of the debtor Aquino in proceedings supplementary to execution disclosed that he was the owner of a bond and mortgage which was a lien on premises at 389 Broome Street, New York City, on which there was an unpaid balance of $16,500 payable at the rate of $250 quarterly. The Sheriff duly levied on the debt and demanded payment which was refused.

The bond and mortgage were then in the possession of Aquino’s attorney who resided and had his office in Kingston, Ulster County, N. Y. The documents were being held by him under legitimate circumstances fully described in the record and which have no particular significance in the decision of the precise question here involved, namely: whether the failure of a judgment creditor to take action, as authorized and within the time limitations prescribed in subdivision 7 of section 687-a of the Civil Practice Act, amounts to an interference equivalent to having the execution vacated or set aside within the meaning of subdivision 19 of section 1558 as it then was, the substance of which is now incorporated in subdivision 21 of new section 1558 (L. 1958, ch. 942).

It is clear that the within case does not fall within the purview of those statutory exceptions allowing poundage without collection. Nonetheless, the appellant Sheriff claims he is entitled to his poundage because the failure of the plaintiff-respondent to proceed timely under subdivision 7 of section 687-a so interfered with his collection that it amounted to a vacatur of the execution.

Interference as a basis for allowing poundage without collection was first enunciated as an intervention of the plaintiff by the performance of some act which in law is deemed to be the equivalent of collection (Flack v. State of New York, 95 N. Y. 461; Campbell v. Cothran, 56 N. Y. 279) which in effect and substance contemplates an affirmative act on the part of the plaintiff which actively interferes with the execution of process and which, in effect, is equivalent to collection. While the respondent’s inaction may have rendered the within execution ineffective and void by operation of law, it cannot be said that such inaction was equivalent to collection within the meaning of the exceptions mentioned in the statute. The statutory exceptions authorizing poundage for noncollection—vacatur or the setting aside of the execution—are in derogation of common law and must be strictly construed. When so read the statutory intendment underlying the right to collect and receive poundage contemplates action of an affirmative rather than a negative nature.

The order appealed from should be affirmed, with costs.

Froessel, J. (dissenting).

I dissent and vote to reverse the orders below, with costs, and to grant the Sheriff’s motion for poundage as against the plaintiff herein, but not against his attorney, since this is not a plenary action (McCloskey v. Bril, 1 N Y 2d 755).

On December 13, 1955 an execution was issued to the Sheriff on a judgment recovered by plaintiff in the sum of $16,776.88 against defendant Cyrus Aquino. On December 14, 1955 the Sheriff levied on a debt, evidenced by a bond and first mortgage on premises 389 Broome Street, New York City, owing to defendant Aquino by 389 Broome Street, Inc. The debtor, by Aniello N. Aquino, its secretary, on December 21, 1955 certified to the Sheriff that the unpaid balance of said bond and mortgage was $16,500, payable in quarterly installments of $250, with interest. It appears that the unpaid balance of the mortgage becomes due in June, 1964. A copy of the debtor’s certificate was mailed to plaintiff’s attorney on December 23, 1955.

Neither plaintiff nor her attorney took any further action with respect to said execution and levy, and, by plaintiff’s having omitted to commence an action for the recovery of the debt evidenced by the bond and mortgage within 120 days pursuant to subdivision 7 of section 687-a of the Civil Practice Act, or to obtain an order .extending the time so to do, the levy became void, except as to any payments theretofore made.

Subdivision 19 of section 1558 of the Civil Practice Act then provided that “ where an execution has been vacated or set aside, the sheriff is entitled to poundage upon the value of the property levied upon ’’ (emphasis supplied). It did not provide, as did subdivision 18 immediately preceding, in the case of a levy under a warrant of attachment, that where the warrant ‘1 is vacated or set aside by order of the court, the sheriff is entitled to poundage ” (emphasis supplied).

Hence it seems to me quite clear that when in dealing with levies on executions the Legislature omitted from subdivision 19 the words “ by order of the court ” after the words “ vacated or set aside ” it intended to include executions “ vacated ” in any manner provided by law. That would include a levy under an execution rendered void by operation of subdivision 7 of section 687-a of the Civil Practice Act. Additional judicial action is not provided for by the plain language of the statute, and we may not infer it.

To hold otherwise would permit litigants to escape their statutory obligation to pay poundage after the aid of the Sheriff has been invoked, and his service has been rendered, by simply waiting 120 days after the issuance of an execution to the Sheriff.

Judges Desmond, Fuld, Van Voorhis and Burke concur with Judge Dye; Judge Froessel dissents in an opinion in which Chief Judge Conway concurs.

Order affirmed.