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

text:
    In the Matter of the Probate of the Will of Albert Fox, Deceased. Isabelle F. Hampton, Appellant; Herbert W. Fox et al., Respondents.
    Argued January 10, 1961;
    decided March 30, 1961.

      Rudolf B. Schlesinger for appellant.
    I. Herbert W. Fox had no right to appeal from the decree of Surrogate Di Falco. (Baidach v. Togut, 7 N Y 2d 128; Matter of Cook, 244 N. Y. 63; Matter of Luckenbach, 278 App. Div. 116, 303 N. Y. 491; Matter of Hardy, 216 N. Y. 132; Matter of Brustein, 282 App. Div. 989; Matter of Wallace, 184 Misc. 448; Matter of Klein, 121 Misc. 568; Matter of Green, 165 Misc. 108; Matter of Young, 204 Misc. 92; Matter of Carrington, 195 Misc. 442; Matter of Stock, 11 Misc 2d 652.) II. The Appellate Division erred in applying New York law rather than German law. (Dupuy v. Wurtz, 53 N. Y. 556; Bloomer v. Bloomer, 2 Bradf. 339; Higgs v. De Maziroff, 263 N. Y. 473; Central Vermont Ry. v. White, 238 U. S. 507; Fitzpatrick v. International Ry. Co., 252 N. Y. 127; Betts v. Betts, 4 Abb. N. C. 317; Ward v. Stanard, 82 App. Div. 386.) III. Under German law, as well as under New York law, the will was entitled to probate. Even if New York law applies, the will is entitled to probate. (Schultz v. Schultz, 35 N. Y. 653; Matter of Dorrity, 118 Misc. 725; Matter of Gethins, 97 Misc. 561; Matter of Breckwoldt, 170 Misc. 883; Matter of Mussachio, 146 Misc. 626; Matter of Shlevin, 157 Misc. 40; Matter of Reiffeld, 36 Misc. 472; Timon v. Claffy, 45 Barb. 438; Conroy v. Claffy, 41 N. Y. 619; Matter of McGill, 229 N. Y. 405; Matter of Smith, 161 Misc. 194; Matter of Crounse, 168 Misc. 359; Throckmorton v. Holt, 180 U. S. 552; Matter of Murphy, 217 Wis. 472; Davis v. Davis, 214 S. C. 247; Matter of Tremain, 282 N. Y. 485; Matter of Kennedy, 167 N. Y. 163.) IV. The testimony concerning 11 oral adoption ’ ’ was inadmissible, and the Appellate Division’s new finding of fact is unsupported. (Linkins v. Protestant Episcopal Cathedral Foundation, 187 F. 2d 357; Flanders v. White, 142 Ore. 375.) V. The testamentary disposition of Albert Fox does not violate any public policy of the United States. (Matter of Reuss, 196 Misc. 24; Matter of Bahrenburg, 208 Misc. 829.)

      Gerard T. Shevlin for Herbert W. Fox, respondent.
    I. The order of the Appellate Division denying proponent’s motion to dismiss the appeal of objectant Herbert W. Fox from the decree granting probate was proper. (Kahn v. Garvan, 263 F. 909; Matter of Young, 204 Misc. 92.) II. The Appellate Division was correct in applying New York law rather than German law. (Matter of Deane, 4 N Y 2d 326; Matter of New York Life Ins. & Trust Co., 209 N. Y. 585; Blount v. Walker, 134 U. S. 607; Matter of Harriman, 124 Misc. 320, 217 App. Div. 733.) III. The will of Albert F. Fox should be denied probate. (Matter of Staiger, 243 N. Y. 468; Matter of Suarez, 281 App. Div. 870; Collyer v. Collyer, 110 N. Y. 481; Schultz v. Schultz, 35 N. Y. 653; Timon v. Claffy, 45 Barb. 438; Conroy v. Claffy, 41 N. Y. 619; Matter of Dorrity, 118 Misc. 725; Matter of Gethins, 97 Misc. 561; Matter of Breckwoldt, 170 Misc. 883; Matter of Mussachio, 146 Misc. 626; Matter of Shlevin, 157 Misc. 40.) IV. The decision of the Appellate Division does not introduce a new or undesirable doctrine. (Knapp v. Knapp, 10 N. Y. 276.) V. The testimony objected to by proponent was admissible.
   Fuld, J.

In 1924, Bertha M. Foster, the sister of Albert Fox (whose will is before us in this proceeding), died a resident of New York County leaving a will which was probated in New York County. In her will, Mrs. Foster created a trust, the income of which was to go to her brother Albert Fox for life, the remainder to his next of kin, subject, however, to a power in bim to make a different disposition by a general power of appointment in his will.

Albert Fox, the designated life beneficiary and donee of the power, was an American-born citizen who resided in Germany with his German wife and three German children for many years preceding his death there on April 12, 1946. In the fall of 1939, allegedly because he ‘ ‘ was worried about the possibility that the German Government would confiscate the [Foster] trust ’ ’, he executed a will in which he exercised his power of appointment in favor of Isabelle Foster Hampton, the petitioner in this proceeding. This will was executed in the German language and was formally valid under the law of Germany. At the suggestion of his son, Frank Fox, the will was delivered for safekeeping into the hands of a notary in Berlin where it was placed in an office safe.

In 1943, some four years after Albert Fox executed his will, the New York trustee of the Foster trust was served by the Alien Property Custodian with Vesting Order No. 1043, which vested in the United States Government the entire interest of Albert and his next of kin in the trust. Shortly thereafter, on January 30, 1944, more than two years before Albert died, the building in Berlin in which his will was being stored was burned to the ground in a bombing raid and the will was destroyed.

It was not until a year and a half after it happened that Albert Fox learned of the destruction of his will from his son Frank. His reaction to this news was testified to, over objection, by his son; he suggested, according to the latter, that the destroyed will “ had * * *■ become without object ” and that he intended to come to this country and, when here, exercise the power of appointment in favor of his wife.

After Albert Fox’s death in 1946, Mrs. Hampton instituted the present proceeding to admit his will to probate, pursuant to section 143 of the Surrogate’s Court Act, as one £1 fraudulently destroyed ’ ’. The Surrogate, finding that the decedent had properly executed the will, that it had been £ £ fraudulently destroyed” within the meaning of the statute and that it had not been revoked, admitted it to probate. Upon appeal by Herbert Fox, another of the decedent’s sons, the Appellate Division reversed and dismissed the petition. Although the court recognized that an accidental destruction was encompassed within the term ££ fraudulently destroyed ” and although the court found that ££ revocation was not established ”, it held that the testator had orally adopted ” the will’s prior destruction.

Before reaching the substantive issues posed by this appeal, we consider, briefly, the appellant’s point that Herbert Fox had no right to appeal to the Appellate Division because he was not an aggrieved party. This contention is based on the fact that the 1943 vesting order transferred to the Government 1‘ all right, title, interest and claim * * * of Albert Fox and his next of kin ” in and to the Bertha Foster trust. If such a transfer was effected, the argument runs, son Herbert no longer had any right or interest in the Foster trust as next of kim and, accordingly, even if his father’s will were denied probate,, neither he nor any other next of kin of the decedent would be entitled to share in the trust.

The argument has a superficial appeal, but that is all. It may well be that the vesting order in and of itself deprived Herbert Fox of all right or interest in the Foster trust and, if that is so, he will never be able to share in that trust. However, the Surrogate’s decree admitting Albert’s will to probate created a further obstacle to his son’s sharing therein. Before the entry of the decree, from which Herbert appealed to the Appellate Division, he had to overcome only the vesting order. After its entry, he had also to overcome the force and effect of the document offered by the petitioners. This is sufficient to constitute Herbert an aggrieved party.

Having reached this conclusion, we proceed to consider whether the testament offered for probate may be admitted as a fraudulently destroyed ” will.

The decedent spent most of his life in Germany, died a resident of Germany and executed the will in question in that country in the German language and in the form prescribed by German law. Since The validity and effect of a will of movables is determined by the law of the state in which the deceased died domiciled” (Restatement, Conflict of Laws, § 306; see, also, Dupuy v. Wurtz, 53 N. Y. 556; 2 Beale, Conflict of Laws [1935], p. 1034; cf. Decedent Estate Law, § 22-a), the question of the effect of the destruction of the Fox will should be governed by German law.

The Appellate Division majority applied New York law to the problem before us, assuming, we suppose, that the issue was not the substantive one whether the will was valid, but rather the procedural one whether it could be admitted to probate. The effect of the destruction of this will, however, materially determines the substantial rights of the parties and can no more be considered procedural than can ,the parol evidence rule or the Statute of Frauds. (See Higgs v. de Maziroff, 263 N. Y. 473; Central Vermont Ry. v. White, 238 U. S. 507.) To characterize the problem as one of procedure and to apply New York law to the determination of the effect of the destruction in Germany of a will written in Germany under German law by a German domiciliary is to elevate form over substance and to violate basic principles of the law of conflicts.

There is, however, no need to decide the conflicts question. This is so because both German and New York law require that the will before us be admitted to probate and there is, therefore, no need to choose between the law of the two jurisdictions. The Surrogate found that the Fox will was admissible to probate under German law, relying on sections 2254-2255 of the German Civil Code and a case in the Bundesgerichtshof, the highest German court.

Actually, we reach the same conclusion under New York law by reasoning either that the son’s testimony as to his father’s “oral adoption” of the prior destruction was inadmissible as hearsay or on general principles developed in the law of wills (see Matter of Staiger, 243 N. Y. 468, 472; Matter of Kennedy, 167 N. Y. 163, 170; Throckmorton v. Holt, 180 U. S. 552, 581; Waterman v. Whitney, 11 N. Y. 157, 162; 6 Wigmore, Evidence [3d ed., 1940], p. 229) or that, even if admissible, the testimony did not negate a “fraudulent destruction” within the meaning of the relevant statute, section 143 of the Surrogate’s Court Act, and of the cases relating to the subject. (See Schultz v. Schultz, 35 N. Y. 653, 655; Matter of Breckwoldt, 170 Misc. 883, 885; see, also, Atkinson, Wills [2d ed., 1953], pp. 506-507; Simes, Model Probate Code [1946], p. 300.)

In Matter of Kennedy (167 N. Y. 163, supra), the proponents of a lost will and codicil sought to have them admitted to probate under the provisions of a statute, identical with those in present section 143 of the Surrogate’s Court Act, requiring them to be “ in existence at the time of the testator’s death, or * * * fraudulently destroyed in his lifetime” (Code Civ. Pro., §§ 1865, 2621). Since the will and codicil had been in the possession of the testatrix, the presumption arose that she had destroyed them ammo revocandi. The proponents sought to overcome this presumption and prove that they were “ in existence at the time of the [testatrix’] death They attempted to do this by introducing into evidence various declarations and statements of the testatrix made until shortly before her death, which showed that she intended to leave the will and codicil offered for probate as her testament and which described their whereabouts. The Surrogate disallowed the proof, and this court sustained his ruling, refusing to admit the will and codicil to probate. (See, also, Matter of Staiger, 243 N. Y. 468, 472, supra.)

The underlying rationale and policy of the decisions in the Kennedy and Staiger cases, both of which involved refusals to receive in evidence declarations of the decedent as to testamentary intent such as those involved in this case and both of which involved the very same statutory language as is here before us, are very much in point. Evidence of what Albert Fox said and thought when he learned that his will had been destroyed is no more admissible to prove that his will had not been fraudulently destroyed than was evidence of what Bachel Kennedy or Mrs. Staiger said and thought admissible to prove that their wills were in existence at the time of their deaths. This is what the court wrote in the Kennedy case (supra, p. 170): “ The whole course of legislation in this state from the earliest times to the present day, concerning the execution and revocation of wills, discloses a clear purpose to substitute in all cases written for oral proof of a testamentary disposition of property and to sweep away all parol proof of testamentary intentions, and, hence, to exclude statements or declarations of the deceased.” And, in Throckmorton v. Holt (180 U. S. 552, 581, supra), the United States Supreme Court proclaimed the same policy with this forceful language: “If declarations of the deceased were admissible to attack, they would then of course be admissible to sustain the will, and there would be apt to arise a contest in regard to the number and character of conflicting declarations of the deceased which he could neither deny or explain, and in the course of which contest great opportunities for fraud and perjury would exist. The statutes as to wills were passed, as we believe, for the very purpose of shutting out all contests of such a character.”

No one disputes that Albert Fox executed a valid written will and that in it he exercised his power of appointment in favor of Mrs. Hampton. Nor does anyone doubt that this will was not destroyed ‘ ‘ with the intent and for the purpose of revoking the same, by the testator himself, or by another person in his presence, by his direction and consent ”, as specified in section 34 of the Decedent Estate Law. Notwithstanding these undisputed facts, the Appellate Division reversed the decree admitting the will to probate, relying on the hearsay evidence given by the testator’s son, a witness whose interest is as strong as it is obvious, that his father had “orally adopted” the destruction of the will a year after it had happened. Such reliance on declarations of the deceased to prove testamentary intention was held totally ill founded in the Staiger case (243 N. Y. 468, supra) and in Matter of Kennedy (167 N. Y. 163, supra), as well as in Throckmorton v. Holt (180 U. S. 552, supra). As this court observed in the Kennedy case, it violates “ the whole course of legislation in this state from the earliest times to the present day”. (167 N. Y., at p. 170; see, also, Dan v. Brown, 4 Cow. 483, 490; Jackson v. Betts, 6 Cow. 377, 382; Jackson v. Kniffen, 2 Johns. 31, 34; Waterman v. Whitney, 11 N. Y. 157, 162, supra; 9 Wigmore, op. cit., p. 229.)

Even if we were to decide, in contravention of the strong policy against their admission, that the decedent’s declarations may be received in evidence in this ease, they do not provide a sufficient reason for refusing to admit the Fox will to probate as one which has been ‘1 fraudulently destroyed ’ ’ within the sense of section 143 of the Surrogate’s Court Act. That section provides that “A lost or destroyed will can be admitted to probate in a surrogate’s court, but only in case the will was in existence at the time of the testator’s death, or was fraudulently destroyed in his lifetime, and its provisions are clearly and distinctly proved by at least two credible witnesses ’ ’.

At common law, ‘1 When a will previously executed cannot be found after the death of the testator, there is a strong presumption that it was revoked by destruction by the testator ”. (Collyer v. Collyer, 110 N. Y. 481, 486.) The purpose of section 143 is to impose on the proponent of a lost or destroyed will the burden of overcoming this common-law presumption, of proving, that is, that the lost or destroyed will was not revoked by the testator during his lifetime. (See Schultz v. Schultz, 35 N. Y. 853, 655, supra; Collyer v. Collyer, 110 N. Y. 481, 486, supra; Matter of Kennedy, 167 N. Y. 163, 168, supra; Matter of Havel, 156 Minn. 253, 256; Adams v. Southerden, [1925] Prob. 177; see, also, 9 Wigmore, op. cit., pp. 440-441; Simes, op. cit., p. 300; Atkinson, op. cit., pp. 506-507; Note, 41 Mich. L. Rev. 358; see, contra, Campbell v. Smullen, 96 N. J. Eq. 724; Deaves' Estate, 140 Pa. 242; Matter of Kerckhof, 13 Wn. 2d 469.) And although, as this court indicated in the Schultz case, the phrase “ fraudulently destroyed ” used in the statute is not as precise as it might have been (35 N. Y., at p. 656), when viewed in the light of the common-law presumption and the purpose of the statute, its meaning becomes quite clear.

By requiring proof that a lost or destroyed will was either in existence at the time of the testator’s death, or was fraudulently destroyed in his lifetime ”, the Legislature merely intended to require proof that either the will had not been destroyed during the testator’s lifetime or that, if destroyed during his lifetime, it had not been destroyed by him or by his authority. In other words, all that section 143 requires is proof that the testator himself had not revoked the lost or destroyed will, proof that would overcome the common-law presumption of revocation.

This construction is neither novel nor unreasonable. In the 1866 case of Schultz v. Schultz (35 N. Y. 653, supra), there was, as there is here, clear proof that, although the testator had duly executed a will and given it over for safekeeping to another, it could not be found after death. It was also clearly established, as it was here, that the testator ‘ ‘ did not burn, tear, cancel, obliterate or destroy the will ’ ’ and that this was not ‘ ‘ done by another person in his presence, by his direction and consent ” (35 N. Y., at p. 655). These facts appearing, the court concluded that “ the will of the testator has never been legally revoked or canceled ” and that it followed necessarily that the will was either “ in existence at the time of the death of the testator; or * * * fraudulently destroyed in the lifetime of the testator ” within the meaning of the predecessor statute (Rev. Stat. of N. Y., pt. II, ch. VI, tit. I, § 90 ; 3 Rev. Stat. [5th ed.], p. 153) to section 143.

In other words, the court in the Schultz case reasoned that the fact that the will had not been revoked by the testator necessarily implied compliance with the statutory requirement that the will either had been in existence at the time of death or had been “ fraudulently destroyed ”. All that was intended by the words “fraudulently destroyed ”, said the court, was that the will “had been destroyed in [the testator’s] lifetime, without his knowledge, consent or procurement, or accidentally lost ’ ’ (35 N. Y., at p. 656). The phrase “fraudulently destroyed” has nothing to do with the question of the motive for destruction, but solely with the question of the agency of destruction. A will is considered to be “ fraudulently destroyed ” if it simply appears that it was destroyed by someone other than the testator and without his authorizing or directing the destruction.

The court below has distinguished Schultz v. Schultz {supra) on the ground that the testator in that case never learned of the destruction of his will and never £ ‘ orally adopted ’ ’ it. But, as is clear from an analysis of section 143 and from a reading of the Schultz opinion, the design of the section is solely to require proof that the lost or destroyed will offered for probate was not destroyed by the testator animo revocandi. Proof that the testator subsequently learned of the destruction of his will shows, if anything, that he himself did not destroy it and, therefore, such proof, far from implying that the will was not “ fraudulently destroyed ”, actually establishes that it was. As long as it is acknowledged, as it must be, that the testator’s subsequent “ oral adoption ” of the destruction of his will cannot constitute a revocation, it follows that such an “ oral adoption ” is not inconsistent with the conclusion that the will must be deemed to have been destroyed “ without [the testator’s] knowledge, consent or procurement ” (35 N. Y., at p. 656), not inconsistent with its having been ‘‘ fraudulently destroyed”.

Timon v. Claffy (45 Barb. 438, affd. without opinion sub nom. Conroy v. Claffy, 41 N. Y. 619), in which the testator directed that his will be destroyed in his presence but failed to fulfill all the statutory requirements for a revocation, may not be read, as it was in the Appellate Division, to constitute authority limiting the clear construction given in the Schultz case (supra) to the words “ fraudulently destroyed ”. In addition to holding that the will had not been fraudulently destroyed (45 Barb., at p. 446), the lower court in Timón also held that it had been executed as a result of undue influence (45 Barb., at p. 447). Undoubtedly, our affirmance was based on the more fundamental of these two grounds, namely, that the will was the subject of undue influence.

Even were we to suppose, however, that this court had concluded that the will in the Timón case {supra) had not been ‘ fraudulently destroyed ’ ’, the case stands simply for the proposition that the destruction will not be deemed fraudulent when effected at the testator’s request and in his presence. Since the testament in the case before us was not destroyed either at the testator’s request or in his presence, the rule of the Schulte case {supra) applies and the destruction must be considered fraudulent.

Where a will is ‘ ‘ clearly and distinctly proved ’ ’ as required under section 143, the legal effect of refusing to admit it to probate on the ground that its destruction was subsequently orally adopted ” is to allow a will to be revoked without the formalities required by section 34 of the Decedent Estate Law. If a prior destruction of a will without ‘1 the intent and * * * the purpose of revoking the same ” may subsequently be orally adopted ”, with the effect of preventing its probate, our courts will again be forced, as the Appellate Division was in this case, to rely on parol evidence to defeat or sustain a writing executed with all of the formalities required by law. This is precisely the condition found obnoxious at common law and which was sought to be avoided by the enactment of section 34 of our Decedent Estate Law. (See Matter of Tremain, 282 N. Y. 485, 487.)

However sophisticated the reasoning may appear, to speak of a destroyed will which is valid and unrevoked but which may not be admitted to probate is legal sophistry unless the refusal to admit it is based on reasonable doubt as to whether the will was really the testator’s will. (See 2 Page, Wills [3d ed.], p. 380 ; 9 Wigmore, op. cit., pp. 440-441'; Atkinson, op. cit., p. 507.) Here, there is no doubt whatsoever that the will offered for probate was the testator’s will. Nor is there any question that it was not revoked with the formality required by law. There is, under these circumstances, no reason for denying it probate. -

The order of reversal should be reversed, with costs to appellant in this court and in the Appellate Division, and the decree of the Surrogate’s Court granting probate reinstated.

Chief Judge Desmond (dissenting).

Albert Frank Fox, an American citizen, lived in Germany for many years preceding his death in Berlin in April, 1946. The question for decision is whether a will executed by him in Germany in 1939 and destroyed by the bombing of a Berlin building in January, 1944 may be admitted to probate in this State and thus made effective as an exercise of a power of appointment given to Albert Frank Fox in the will of his sister Bertha M. Foster. Mrs. Foster was a resident of New York County and her will was probated there in 1924. It set up a trust with a New York City banking company as trustee and Albert Frank Fox as life beneficiary and gave the trust remainder to his next of kin subject to a power in the life beneficiary to appoint a person or persons to take the remainder upon his death.

On October 1,1939, a month after World War II commenced, Albert Frank Fox executed in Germany the will here offered for probate. It related only to the Foster trust power of appointment and exercised that power in favor of Isabelle Foster (appellant Isabelle Foster Hampton) who was a relative of the husband of Bertha Foster, donor of the power. The will was duly executed according to German law and pursuant to local custom was left for safekeeping with a notary in Berlin. The notary kept it in his custody until the air raid of January 30, 1944 wiped out the building including the notary’s vault in which the testamentary paper had been deposited. In June, 1945, a month after the surrender of the German army, Frank Fox, testator’s lawyer son, told his father of the will’s destruction but Albert Fox made no new will during the 10 months that elapsed between that date and his death. All of these facts were found by both courts below on convincing proof. There was, besides, testimony, somewhat equivocal and possibly inadmissible, that the father when he learned that the will had been burned stated that he intended to return to New York as soon as possible and that when he got there he would exercise the power in favor of his wife. As we see the case there was, with or without that testimony, no power in the Surrogate’s Court to probate this will and so we agree with the Appellate Division in its dismissal of the petition for probate.

First, we hold that the law of New York, not German law, applies since the sole question is as to exercise of a power of appointment given in a trust created in New York by a New York resident and administered in New York by a New York trustee (Matter of Deane, 4 N Y 2d 326; Matter of Pratt, 8 N Y 2d 855; see Matter of Harriman, 124 Misc. 320, affd. 217 App. Div. 733).

The Surrogate’s decree of probate was based on his holding that the will had not been revoked in accordance with section 34 of the Decedent Estate Law. The Appellate Division agreed that there had been no such revocation but held correctly that the case was controlled by the plain language of section 143 of the Surrogate’s Court Act: “A lost or destroyed will can be admitted to probate in a surrogate’s court, but only in case the will was in existence at the time of the testator’s death, or was fraudulently destroyed in his lifetime, and its provisions are clearly and distinctly proved by at least two credible witnesses, a correct copy or draft being equivalent to one witness. ’ ’ Since the will of Albert Fox was not in existence at the time of his death but had been destroyed two years earlier, it could not be probated unless it had been “fraudulently destroyed”. No possible meaning of the word ‘1 fraudulently ’ ’ fits this case. “ The fraud mentioned and referred to in this connection is a fraud upon the testator, by the destruction of his will, so that he should die intestate, when he intended and meant to have disposed of his estate by will and never evinced any change of that intent ” (Schultz v. Schultz, 35 N. Y. 653, 656). The precise question—as to whether the destruction of a will by a testator’s wife at his request and in his presence was fraudulent— was answered in the negative in Timon v. Claffy (45 Barb. 438, affd. sub nom. Conroy v. Claffy, 41 N. Y. 619). In the Timon case, as here, the statutory formalities for revocation (Decedent Estate Law, § 34) were not observed but the court held, nonetheless, that, since the will was not in existence and had not been ‘ ‘ fraudulently destroyed ’ ’, it could not be accepted by the probate court. Section 143 is the only source of a Surrogate’s power to probate a will destroyed during a testator’s lifetime. “ Before a lost or destroyed will can be admitted to probate there must be evidence to justify a finding that the will was in existence at the time of a testator’s death or was fraudulently destroyed in bis lifetime ” (Matter of Staiger, 243 N. Y. 468, 471). There is not and could not be such a finding in this case.

In a proper case constructive fraud or “ fraud in law ” as to a will’s destruction may come within the terms and meaning of the statute so as to permit probate but the only likely instances are those where the testator dies without knowing that his will had been lost or obliterated (see Matter of Gethins, 97 Misc. 561; Matter of Dorrity, 118 Misc. 725; Matter of Shlevin, 157 Misc. 40; Matter of Breckwoldt, 170 Misc. 883). A testator who knows that his testament has been annihilated and accepts the fact and does nothing about it despite a reasonable opportunity to make a new will has not been the victim of a fraud, actual or constructive (see Matter of Reiffeld, 36 Misc. 472). It is not important whether we say with the Appellate Division that what happened here amounted to a post factum adoption of the prior destruction or say that the words “ fraudulently destroyed ” cannot be stretched to reach a case like this one. There is no decision anywhere allowing probate on such facts.

Since, then, Albert Frank Fox left no will exercising his power of appointment, it is unnecessary to take up the question as to the effect, if any, of “ Vesting Order 1043 ” issued by the Alien Property Custodian and served on the trustee of the Foster trust.

The order appealed from should be affirmed, with costs.

Judges Van Voobhis, Fboessel and Fosteb concur with Judge Ftjld; Chief Judge Desmond dissents in an opinion in which Judges Dye and Btjbke concur.

Order reversed, etc.

      . Since the respondent and the Appellate Division have placed such heavy reliance upon what he stated, we repeat it in full: “My father said that he intends to go back to the United States, together with my mother, as soon as possible. By this reaction he wanted to express first that that appointment of Miss Isabelle Foster had in any case become without object and, second, that the continuation of the employment of Isabelle Foster in any case did not agree with his wishes, as it later turned out. Father declared later that he would be able to travel very soon, with mother, to the States with the help of the U. S. Troops, and that he would have his current income in the States out of the Trust and from an annuity in the States sufficient for him and mother and that he would have to leave the Trust to mother as a precaution so that she would be able to live on it in case he would die before her.”

      . This decision, handed down in 1951 and published in Neue Jmistische Wochenschrif t 1951 at page 559, held that a “ testator cannot revoke [his] will by subsequently approving its destruction informally, with the intention to revoke the same.”


source: Caselaw Access Project

author: Foster, J.

license: Public Domain

text:
    The People of the State of New York, Respondent-Appellant, v. George William Randall, Appellant-Respondent.
    Argued February 23, 1961;
    decided March 30, 1961.

      Donald L. Slater for appellant-respondent.
    I. The use of defendant’s confession violated both the due process and self incrimination clauses of the Constitution. (People ex rel. Kenny v. Adams, 292 N. Y. 65; People ex rel. Ferguson v. Reardon, 197 N. Y. 236; People v. Spano, 4 N Y 2d 256, 360 U. S. 315; People v. Foley, 8 N Y 2d 153; United States v. Greene, 100 F. 941; People v. Steiger, 154 Misc. 538; People v. Cascia, 191 App. Div. 376; People v. Hendrickson, 8 How. Prac. 404, 1 Parker Cr. Rep. 406, 10 N. Y. 13.) II. The record does not support a conviction for the misdemeanor. (People v. Rytel, 284 N. Y. 242; People v. Kress, 284 N. Y. 452; People v. Collins, 234 N. Y. 355; People v. Cosad, 253 App. Div. 104.) III. The Appellate Division, upon holding the indictment defective, should have granted defendant’s motion to dismiss. (People v. Lewis, 238 N. Y. 1; People v. Kane, 161 N. Y. 380; People v. Corbalis, 178 N. Y. 516; People v. Foster, 204 App. Div. 295, 236 N. Y. 610; People v. Lapolte, 253 N. Y. 573.) IV. Defendant was deprived of a fair trial by improper remarks of the prosecutor. (People v. Carborano, 301 N. Y. 39.)

      Leslie E. Briggs, District Attorney, for respondent-appellant.
    I. There was no error in the admission of defendant’s written confession. (People ex rel. Lemon v. Supreme Court, 245 N. Y. 24; People v. Spano, 4 N Y 2d 256; People v. Ferola, 215 N. Y. 285; People v. Foley, 8 N Y 2d 153; People v. Defore, 242 N. Y. 13.) II. There was ample evidence to support the verdict. (People v. Gioia, 286 App. Div. 528; People v. Eaton, 122 App. Div. 706, 192 N. Y. 542.) III. The Appellate Division was not required to dismiss the indictment or grant a new trial. IV. Defendant was not deprived of a fair trial by any remark of the District Attorney. V. The Appellate Division erred in reducing the charge to attempted sodomy.
   Foster, J.

This case comes to us on cross appeals from an order of the Appellate Division, Third Department, which unanimously modified a judgment of the County Court, Cortland County, convicting defendant of the crime of attempted sodomy in the second degree upon a jury verdict. The order of the Appellate Division modified the judgment on the law and the facts, reduced the conviction to an attempt to commit sodomy as a misdemeanor, and sentenced the defendant to six months in the penitentiary. The People contest the reduction of the conviction by the Appellate Division and seek reinstatement of the original judgment of conviction of the County Court. Defendant seeks dismissal of the indictment, or in the alternative that he be granted a new trial.

The defendant, at the time of his arrest and trial herein, was 59 years of age. He had divorced his wife some years earlier, and lived with his 26-year-old son on a small farm in the Town of Preble, Cortland County, New York. Prior to the conviction herein appealed from, the defendant had no criminal record of any kind.

On March 8, 1959 James Proctor, then 16 years of age, was picked up by the State Police and taken to their station in Homer, New York, for questioning in connection with the whereabouts of a boy who was wanted by the probation authorities. In the course of this questioning, Proctor signed two written statements for the police, the substance of both being that, on an occasion about a month earlier, he voluntarily had attempted to perform an act of anal intercourse with the defendant, at the request of the defendant at the defendant’s home in Preble. Proctor swore to the truth of each of those statements before different Magistrates and was confined to the county jail on an information charging him with the crime of sodomy, third degree.

The testimony was conflicting as to what occurred thereafter. According to the People’s witness, Trooper John Cody, Bandall was taken to the Homer substation for questioning by the State Police on March 12, 1959. He orally confessed to the act but refused to make a written statement. At 8:00 or 8:30 p.m. on that day, the defendant formally was arrested upon the information of Trooper Cody, charging him with sodomy in the second degree. He then was arraigned before B. Curtis Harris. Justice of the Peace, who advised him of all of his rights, including his right to counsel, and was committed to the Cortland County Jail for examination. On March 13, 1959 Trooper Cody received word that the defendant desired to make a written statement. Trooper Cody and Corporal Bichard Haley of the State Police went to the Sheriff’s office and prepared the typewritten statement based upon defendant’s oral admissions. The defendant read the statement, made a correction, and signed it before a notary public who verified the signature.

On the other hand, defendant Bandall testified that he was picked up by the State Police on March 12, without being advised of the reason; that during the questioning, a trooper struck defendant with his elbow, causing blood to flow from his ear; that a trooper used defendant’s arm as a weapon and caused defendant to strike himself in the head; and that the troopers otherwise abused and intimidated him. He further testified that the confession he signed on March 13 was never read to him; that he could not read it because his glasses had been destroyed accidentally prior to his arrest; and that he did not know the contents of the document. The troopers denied striking the defendant, and averred that the confession was made freely and readily by defendant and that it was read by defendant prior to signing.

Justice of the Peace Habéis was called as a defense witness. He recalled that on March 14,1959, between 10:00 and 10:30 a.m., defendant again was brought before him. A document was produced and, at the request of the troopers, Justice Harris asked the defendant if he desired to swear to the truth thereof. Defendant then swore to the truth of the contents of the document without first having been advised of his privilege against self incrimination. Justice Harbis thereupon advised defendant of his right to counsel, and to a preliminary examination, but the defendant waived examination and was held for Grand Jury action. The Justice could not recall whether he verified the document. He testified that he had noticed that the document was notarized, but he himself did not see the body of the document nor the contents thereof. Apparently Trooper Cody then put the document in his pocket and carried it away. Defendant’s testimony corroborated that of Justice Harbis. Trooper Cody, however, did not recall having produced any document before Justice Harris, despite contrary allegations in an affidavit submitted by Cody in opposition to defendant’s motion to inspect the Grand Jury minutes.

Defendant was indicted by the Cortland County Grand Jury for the crime of sodomy in the second degree. The indictment charged as follows: “ The said defendant, on or about the 4th day of February, 1959, * * * then being over the age of twenty-one years, to wit: fifty-nine (59) years of age, engaged in an act of carnal knowledge by the anus with one James Deyo Proctor, a person under the age of eighteen (18) years, to wit: sixteen (16) years of age and aided and abetted said James Deyo Proctor in an act of carnal knowledge by the anus with the defendant; against the form of the statute in such case made and provided.” Motions to inspect the Grand Jury minutes and to dismiss the indictment upon grounds that defendant’s constitutional rights were violated and that the indictment was based upon illegal and insufficient evidence were denied. As we have indicated, the jury returned a verdict of guilty of an attempt to commit sodomy in the second degree, and the Appellate Division modified. From the written statements and testimony of Proctor and the oral and written confessions of defendant Randall, and from the evidence adduced, the jury could find that the defendant, 59 years of age, submitted to an act of anal intercourse perpetrated by a 16-year-old boy.

The primary question before us, and the one dealt with in the opinion below, is whether or not defendant was guilty of any crime under the sodomy statute (Penal Law, § 690), as it now exists, and as it existed at the time the act charged allegedly was committed.

Section 690 of the Penal Law, prior to 1950, provided, in part, that one who “ carnally knows any male or female person by the anus or by or with the mouth; or voluntarily submits to such carnal Imowledge * * * is guilty of sodomy ”. (Emphasis supplied.) Indeed, from 1886 (L. 1886, ch. 31, § 6) to 1950, the Legislature had indicated that only the perpetrator of the sodomous act had carnal Imowledge within the meaning of the sodomy statute. The pathic or recipient of the act was described separately as one who “voluntarily submits to such carnal knowledge ”. The meaning of the term “ one who carnally lmows another ”, therefore, has been restricted by constant and long-settled legislative usage, and includes only the active participant or perpetrator of the sodomy.

The statute was amended in 1950 (L. 1950, eh. 525, § 15) and the crime of sodomy was subdivided into degrees. No reference was made in the new statute to a person who ‘ ‘ voluntarily submits to such carnal knowledge.” The statute sets forth five paragraphs defining sodomy in the first degree. In general “A person who carnally knows” another “by the anus or by or with the mouth ” against the will and consent of the other or under circumstances where lack of consent may be implied is guilty of that crime (italics supplied). Sodomy in the second degree, also a felony, then is defined as follows: “ A person twenty-one years of age or over who carnally knows by the anus or by or with the mouth any male or female person under the age of eighteen years, under circumstances not amounting to sodomy in the first degree is guilty of sodomy in the second degree” (italics supplied). Sodomy as a misdemeanor results when a person ‘ ‘ carnally knows ’ ’ another ‘ ‘ by the anus or by or with the mouth under circumstances not amounting to sodomy in the first degree or sodomy in the second degree ”.

Prior to amendment, then, the passive party to the act of sodomy was guilty of the crime to the same extent as the perpetrator, and this was expressly set forth in the statute. Abruptly, the sodomy statute was revised in 1950 and thereafter only a person who carnally knows another is specified.

In the case before us, both parties voluntarily attempted to consummate a sodomous act. There was no attempted sodomy in the first degree. Nor did defendant Randall, a person over the age of 21, attempt to carnally know Proctor, an infant undor the age of 16. Randall thus committed no attempted sodomy in the second degree. Here, the infant attempted to carnally know the adult within the meaning of the statute. The infant was not guilty of sodomy in the second degree, since only an adult who “carnally knows ” an infant may be guilty of that crime. Randall, therefore, was not guilty of attempted sodomy in the second degree as an aider and abettor, for there was no attempted sodomy in the second degree committed.

It is argued by the People that the purpose of the provision for sodomy in the second degree is to protect infants from sodomous acts at the insistence of adults, and to insulate youths from criminal responsibility for their participation in such acts. Therefore, they conclude that the failure to include as violators of the provision adults who ‘‘ voluntarily submit ’ ’ to unnatural acts by infants was merely a legislative oversight. They would have us define “ carnal knowledge ” as “ sexual intercourse ” (Black’s Law Dictionary [4th ed.], p. 268; Webster’s New International Dictionary [2d ed.], p. 408), and conclude that the adult defendant ‘ ‘ carnally knew ’ ’ the infant Proctor. In this fashion, it is urged, the legislative oversight would be corrected, and we could then reinstate the judgment of guilty of attempted sodomy in the second degree.

Undoubtedly an adult who habitually solicits others to commit sodomous acts upon his person may threaten the welfare of an infant to the same degree as an adult perpetrator, and the People’s argument is persuasive. But, as we have pointed out, the Legislature has provided that sodomy in the second degree may be committed only by a person over 21 years of age, who carnally knows an infant, and we are constrained to define the term, “ carnal knowledge ”, in accordance with legislative usage. In the words of the opinion below, “ Were it not for the historical handicap of the restricted meaning * * * the words ‘ carnally knows ’ * * * might be given a broader interpretation to include the acts of the pathic.” Accordingly, we agree with the Appellate Division that the defendant attempted no sodomy as a felony in the first or second degrees.

Sodomy as a misdemeanor remains to be considered. A person who carnally knows another in an unnatural fashion, under circumstances not amounting to sodomy as a felony is guilty of a misdemeanor. Proctor, therefore, committed attempted sodomy as a misdemeanor, but the defendant was by no means an innocent party. The trial court in his charge stated:

“ The People claim, however, that the defendant aided and abetted Proctor in the commission and the consummation of the alleged act of carnal knowledge, and that because he did so, he may be convicted as a principal in the crime charged, under the provisions of the Penal Law which provides as follows: ‘ A person concerned in the commission of a crime, whether he directly commits the act constituting the offense, or aids and abets in the commission, or a person who directly or indirectly counsels, commands, induces or procures another to commit a crime, is a principal. ’

In other words, one aiding or abetting in the accomplishment of the crime of Sodomy upon himself is made guilty as a principal with the actual perpetrator, the two being guilty of the same offense. ’ ’

It seems to us that defendant was a voluntary participant in the misdemeanor and, therefore, an aider, abettor, and principal (Penal Law, §§ 2, 27, 1936) unless we are prepared to say that he was a victim of the crime rather than a party thereto. It is true that we have held a woman upon whose body the crime of abortion is committed is a victim rather than a principal, despite her voluntary participation (People v. Blank, 283 N. Y. 526; People v. Vedder, 98 N. Y. 630, 632), and a purchaser of intoxicating beverages illegally sold is not a principal under statutes forbidding the sale (People v. Smith, 28 Hun 626, affd. 92 N. Y. 665; 1 Wharton’s Criminal Law and Evidence [Anderson ed.], § 105). Those eases are not apposite here.

Directly applicable, we believe, are eases in which persons in positions analogous to that of this defendant have been treated as principals together with the persons directly violating the express prohibitions of the Penal Law. Thus, we have held that a thief who delivers stolen goods to. a receiver is a participant in the receiver’s crime of receiving stolen goods (People v. Kupperschmidt, 237 N. Y. 463, 465); that the payer of a bribe is an accomplice of the taker, and may be held as a principal under a statute forbidding the taking of a bribe and, conversely, the taker is an accomplice under statutes forbidding bribery (People v. Mullens, 292 N. Y. 408; People v. Hyde, 156 App. Div. 618, 624-628; People v. Maynard, 151 App. Div. 790); and that a perjurer is an accomplice and principal in the crime of subornation of perjury (People v. Gilhooley, 108 App. Div. 234, affd. 187 N. Y. 551; People v. Gondelman, 253 App. Div. 924; People v. Hyde, supra, p. 628).

While the Legislature has omitted the acts of the pathic in its definition of sodomy, established principles of criminal law compel us to hold the voluntary pathic criminally responsible as a principal and accomplice for his voluntary participation in the misdemeanor (see, e.g., People v. Standish, 5 A D 2d 726; People v. Knorr, 281 App. Div. 772; People v. Crocker, 272 App. Div. 1087; People v. Petrucci, 271 App. Div. 936). Certainly this defendant was not a victim of Proctor’s acts in any sense of the word, or under any policy consideration, and a determination that he was not an aider and abettor would completely remove even an aggressive, instigating pathic from the ambit of the sodomy laws. While a pathic may not be guilty of a felony, we do not think that the Legislature intended to protect and acquit the voluntary pathic from all criminal responsibility, even as an aider and abettor to a misdemeanor.

Defendant next contends that the jury verdict of guilty of an attempt to commit sodomy in any degree was improper, since all of the People’s evidence including the confessions was designed to prove an actual “ penetration ” (Penal Law, § 691). He argues that the jury either should have returned a verdict of guilty of a consummated sodomy or acquitted. The confessions of Proctor, however, by no means assert that penetration actually was effected. Furthermore, at one point during the trial, Proctor testified that he had told defense counsel on a prior occasion that no penetration actually was effected. The issue of penetration was charged to the jury properly, and no exception was taken to the court’s charge on the possibility of a jury verdict of guilty of an attempt to commit sodomy. The jury, of course, was justified in entertaining a reasonable doubt as to penetration.

It is argued that the indictment charged the crime of sodomy in the second degree; that the trial court refused to charge the jury that it could return a verdict of guilty of sodomy as a misdemeanor (or an attempt to commit the misdemeanor); and that, therefore, the Appellate Division was powerless to reduce the verdict to attempted sodomy as a misdemeanor, and should have dismissed the indictment or granted a new trial. However, the Appellate Division acted pursuant to statutory authority (Code Crim. Pro., § 543, subds. 1, 2) and properly modified the judgment of conviction to conform to the proof (cf. People v. Rytel, 284 N. Y. 242). The reduction of the conviction was warranted.

The indictment set forth the facts constituting the crime charged,' although the accusatory portion set forth a higher degree of the crime than was warranted by those facts. This did not render the indictment defective since the factual allegations were controlling (People v. Miller, 143 App. Div. 251, affd. 202 N. Y. 618; People v. Gaydica, 122 Misc. 31; People v. Dwyer, 160 App. Div. 542, 546, affd. 215 N. Y. 46; People v. Samuels, 259 App. Div. 167, 170, affd. 284 N. Y. 410). By returning a verdict of guilty of attempted sodomy in the second degree, the jury necessarily found all of the elements comprising attempted sodomy as a misdemeanor and the Appellate Division acted properly in reducing the conviction to a misdemeanor (Code Crim. Pro., §§ 543, 444, 445). No harm was done by the trial court’s failure to charge the jury that they could find defendant guilty of a misdemeanor.

On the issue as to whether the confession was coerced by the State Troopers by use of brutality, the trial court charged: ‘ ‘ Before you have the right to consider the confession or confessions for any purpose, you must first find beyond a reasonable doubt that the confession was a voluntary one ’ ’. The matter was for the jury on this record, and ‘ ‘ Their * * * determination cannot be disturbed ‘ without breaking down the barriers that separate the functions of a jury from those of an appellate court ’ ” (People v. Vargas, 7 N Y 2d 555, 563). The jury apparently believed, as they were entitled to, the testimony of the State Troopers.

Defendant urges, however, that when he swore to the truth of his notarized confession before the arraigning Magistrate, his constitutional and statutory privilege against self incrimination was violated; that the use of the confession by the G-rand Jury to support an indictment was illegal and irregular; that without the confession, there was not sufficient evidence before the Grand Jury to support the indictment; and that, therefore, the indictment should have been dismissed below and must be dismissed now. He also urges that the use of the confession sworn to before the Magistrate, whether actually signed by the Magistrate or not, could not be used legally in any fashion, under the principle of People v. Foley (8 N Y 2d 153, 155); People v. Shenandoah (9 N Y 2d 75); People v. Oakley (9 N Y 2d 656), and People v. Warner (9 N Y 2d 670).

At the outset, it must be remembered that Trooper Cody, at the trial, did not recall the incident and the trial court ruled that a question of fact existed as to whether defendant actually was asked to swear to a confession before a Magistrate. In his charge, however, the trial court failed specifically to explain to the jury the consequences of the incident if they were to determine that the incident in fact did occur. For purposes of this opinion, therefore, we will assume that the jury found that the incident did occur for we have no way of ascertaining the finding on that issue. And, in their papers in opposition to a pretrial motion of defendant, the People clearly admitted the occurrence.

While in the cases above cited, we indicated our disapproval of ‘ ‘ the taking of or the swearing to confessions, by any judicial officer”, and that principle very possibly was violated in this case, it does not necessarily follow that this conviction must be reversed on that ground. Here, the confession was voluntarily made and notarized prior to the swearing before the Magistrate. The Magistrate did not verify the confession in writing.

Admittedly the confession was used before the Grand Jury. But there is nothing which indicates to us that the swearing of the confession before a Magistrate was made known to that body. A pretrial motion by defendant to inspect the Grand Jury minutes upon the grounds that illegal evidence was presented to the Grand Jury was denied, and that ruling is not reviewable here; this being so, the Grand Jury minutes are not properly before us at this time (People v. Powell, 3 N Y 2d 672). A motion to dismiss the indictment also was made, and the denial of that motion is reviewable here, on appeal from the judgment of conviction (People v. Howell, supra; People v. Nitzberg, 289 N. Y. 523). What we are asked to do now, in reviewing the denial of the motion to dismiss, and in the absence of the Grand Jury minutes, is to assume that the Grand Jury was told or advised in some fashion that the confession was sworn to before a Magistrate. This we are not prepared to do in the face of denials by the People that the fact of the swearing before the Magistrate was made known to the Grand Jury, and in the face of the physical appearance of the confession itself, containing as it does, no signature of the Magistrate. The presumption of regularity of proceedings before the Grand Jury and of the ■ indictment may appropriately be applied (People v. Howell, supra, p. 675; People v. Glen, 173 N. Y. 395; People v. Sweeney, 213 N. Y. 37). There is no “ clear showing” of insufficiency or illegality of evidence before the Grand Jury. The confession, in the absence of facts indicating to the Grand Jury that it improperly was obtained or sworn to, was admissible to support the indictment (People v. Caminito, 3 N Y 2d 596). This is particularly so where, as here, it was validly and voluntarily sworn to in the first instance.

On the trial, the People at no time exploited the fact that the confession had been sworn to before the Magistrate. Bather, the defendant and his witness brought it out, and emphasized it. Under these circumstances, we do not think that the Foley case (supra), and the cases decided thereunder, necessitate a reversal. An oral confession voluntarily was made and subsequently a written confession voluntarily was executed and sworn to before a notary. Only thereafter did the Magistrate become involved in the confession, and the People did not attempt to take advantage of his participation. The defendant, by his own acts, and by the acts of his counsel, made the incident known to the jury. Here there was no prejudice to defendant by any act of the People (cf. People v. Ferola, 215 N. Y. 285, 291; People v. Downs, 8 N Y 2d 860). We do not mean to condone the act of the troopers and the Magistrate, but on this record, we fail to see how'defendant was harmed except by his own acts. Nor does the doctrine set forth in People v. Di Biasi (7 N Y 2d 544) apply. The defendant in the instant case orally confessed his crime prior to arrest, and confessed in writing at his own request after arrest and after an information was filed, but prior to indictment.

Other issues are raised. The jury, after considerable deliberation, could not agree upon a verdict. They were called back to the courtroom, and the court in an impartial manner, requested that they try for another half hour to reach a verdict. Shortly thereafter, the verdict of guilty was returned. Defendant attacks the procedure employed by the trial court, and argues that the court coerced the guilty verdict. We have held that ‘ ‘ The importance of having a jury agree may properly be urged upon their attention”, and “ They may properly be warned against stubbornness and self-assertion ” (People v. Faber, 199 N. Y. 256, 260-261). That language precisely describes what was done here by the trial court and the procedure employed was in no sense a “ coercion ” and has been approved by the courts of this State (People v. Campanaro, 223 App. Div. 248, 253, affd. 249 N. Y. 545; Hill v. Edinger, 281 App. Div. 1052).

In Hill v. Edinger (supra) the jury had been out for some six hours, in a civil case, and could reach no agreement. The court thereupon suggested that they take an additional 15 or 20 minutes to see if they could reach a verdict, and if they could not, he would discharge them. Shortly thereafter, a verdict for plaintiff was returned. On appeal, the defendant argued that the court coerced the jury by placing a time limit on their deliberations. The appellate court rejected the argument, and stated (281 App. Div., p. 1053): “ This did not constitute coercion and left the jury free to agree or disagree. We cannot say that these matters prejudiced defendant.” Here, also, the jury was free to convict, acquit, or disagree. All that was requested was one final effort to reach a verdict, and to overcome personal traits of stubbornness or self-assertion. No harm was done and no error was committed.

In his summation the District Attorney made an improper statement to the effect that the defendant may have been guilty .of similar offenses on other occasions. Under the circumstances of this case we are constrained to the belief that the incident does not present reversible error (People v. Broady, 5 N Y 2d 500, 516).

The judgment should be affirmed.

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

Judgment affirmed.


author: Burke, J.

text:
    Bush Terminal Buildings Co. et al., Plaintiffs, v. Luckenbach Steamship Co., Inc., Respondent; H. Muehlstein & Co., Inc., Appellant, et al., Defendant.
    Argued February 23, 1961;
    decided March 30, 1961.

      Joseph M. Callahan and Joseph J. Corn, Jr., for appellant.
    I. Since the main complaint, reasonably construed, charges Luckenbach with its own active negligence only, it has no right to claim common-law indemnity from anyone else. (Middleton v. City of New York, 300 N. Y. 732; Sannit v. Buffalo Wire Works Co., 302 N. Y. 820; Dick v. Sunbright Steam Laundry Corp., 307 N. Y. 422; Coffey v. Flower City Carting & Excavating Co., 2 N Y 2d 898; Balch v. Richby Realty Corp., 4 N Y 2d 1006; Putvin v. Buffalo Elec. Co., 5 N Y 2d 447; Bernardo v. Fordham Hoisting Equip. Co., 6 N Y 2d 733; Berg v. Town of Huntington, 7 N Y 2d 871; Yager v. Dock & Coal Co., 11 A D 2d 592; Dolnick v. Donner Lbr. Co., 275 App. Div. 954, 300 N. Y. 660; Ruping v. Great Atlantic & Pacific Tea Co., 283 App. Div. 204; McFall v. Compagnie Mar. Beige, 304 N. Y. 314.) II. There having been no duty owing by Muehlstein to Luckenbach, the violation of which could have been the proximate cause of the damage to plaintiffs’ properties, Luckenbach has no right to claim common-law indemnity from Muehlstein. (Fletcher v. County of Broome, 286 App. Div. 286; Burke v. City of New York, 2 N Y 2d 90; Morse v. Buffalo Tank Corp., 280 N. Y. 110; Beickert v. G. M. Labs., 242 N. Y. 168; Robinson v. New York Cent. R. R. Co., 245 App. Div. 378; Perkel v. Pennsylvania R. R. Co., 148 Misc. 284; Modern Tool Corp. v. Pennsylvania R. R. Co., 100 F. Supp. 595.) III. The cross claim is insufficient in law because its own allegations constitute a complete disavowal of negligence on Luckenbach’s part, thus eliminating any possible premise on which Luckenbach could be held liable to plaintiffs. (Vanino v. Bruckman, 7 Misc 2d 267, 6 A D 2d 1034; Lee v. Tandy & Allen Constr. Co., 14 Misc 2d 348; Shea v. Gitlin, 20 Misc 2d 215; Ingraldi v. Chazen, 205 Misc. 977; Anderson v. Liberty Fast Frgt. Co., 285 App. Div. 44; Kile v. Riefler Bros. Contrs., 282 App. Div. 1000.)

      William M. Kimball, Hervey C. Allen and John S. Rogers for respondent.
    I. The main complaint, reasonably construed, charges Luckenbach with some passive negligence; therefore, the cross claim for implied indemnity is sufficient in law. (Putvin v. Buffalo Elec. Co., 5 N Y 2d 447; Monteverdi v. French Realty Corp., 274 App. Div. 945; McFall v. Compagnie Mar. Belge, 304 N. Y. 314; Ruping v. Great Atlantic & Pacific Tea

      Co., 283 App. Div. 204; O’Dowd v. American Sur. Co. of N. Y., 3 N Y 2d 347; Employers’ Liab. Assur. Corp. v. Daley, 297 N. Y. 745.) II. The duties owed by Muehlstein to Luckenbach entitle Luckenbach to claim implied indemnity from Muehlstein. Questions of proximate cause are premature and must await trial. (Luchenbach v. Coast, 185 F. Supp. 910.) III. Luckenbach’s denials of liability to plaintiffs do not render its cross claim against Muehlstein insufficient in law. (Brady v. Weiss & Sons, 6 A D 2d 241.)
   Burke, J.

This action is brought by plaintiffs against Luckenbach, Atlantic and Muehlstein for the alleged negligent injury to property arising out of a fire and explosion that occurred upon a pier at the foot of 35th Street, Brooklyn, New York City. Defendant Luckenbach, which operated the pier, entered into a contract with defendant Atlantic, under which the latter was to repair Luckenbach’s cargo-handling equipment affixed to the north side of the pier. In the course of its work under such contract, Atlantic operated oxyacetylene torches in the vicinity of a variety of combustible, inflammable and explosive shipments, including Cordeau detonating fuse or Primacord containing explosives. Sparks from the torch are alleged to have ignited rubber scrap and the fire spread to the Primacord which exploded. The rubber scrap, which was delivered by Muehlstein about a month before the fire and placed by Luckenbach on the north side of the pier, is claimed to have been so insecurely packed in the burlap bags that the stevedores refused to load it and some of it spilled out of the bags and scattered loosely around the pier deck.

Muehlstein, by permission of the Appellate Division, First Department, seeks to reverse an order which modified an order of the Special Term, New York County, dismissing a cross complaint by Luckenbach Steamship Co., Inc., against H. Muehlstein & Co., Inc., and reinstated the cross complaint. The Appellate Division certified the following question: “ Is the first cross-complaint against the defendant H. Muehlstein & Co., Inc. contained in the amended answer of the defendant, Luckenbach Steamship Co., Inc., sufficient in law? ”

The answer to that question involves a determination of whether Luckenbach may seek indemnity. ' Luckenbach’s cross^ claim for indemnity alleges the primary active negligence of Mnehlstein and claims that if Luckenbach is held liable it will be due to the active fault of Muehlstein.

The culpability of the person seeking indemnity determines whether recovery will be allowed against a joint tort-feasor. A right to implied indemnity does not exist if a defendant’s conduct was active. (Middleton v. City of New York, 300 N. Y. 732; Sannit v. Buffalo Wire Works Co., 302 N. Y. 820; Dick v. Sunbright Steam Laundry Corp., 307 N. Y. 422; Coffey v. Flower City Carting & Excavating Co., 2 N Y 2d 898; Balch v. Richby Realty Corp., 4 N Y 2d 1006; Putvin v. Buffalo Elec. Co., 5 N Y 2d 447 [1959]; Bernardo v. Fordham Hoisting Equip. Co., 6 N Y 2d 733; Berg v. Town of Huntington, 7 N Y 2d 871.)

Acts of omission constitute active negligence as well as acts of commission (McFall v. Compagnie Mar. Belge, 304 N. Y. 314; Putvin v. Buffalo Elec. Co., 5 N Y 2d 447, supra) and where defendant is alleged to have participated in or “ concurred in the wrong which caused the damages ” there is no right of recovery over (Oceanic Steam Nav. Co. v. Compania Transatlantica Espanola, 134 N. Y. 461, 465). Moreover, where there is a charge of notice, a failure to perform the duty to inspect may not be deemed mere passive negligence (25 N. Y. U. L. Rev. 845, 859; 39 Cornell L. Q. 484, 499; 28 Fordham L. Rev. 782, 786). But, where a complaint alleges several separate and distinct theories of negligence, a claim over may be allowed if the recovery sought is based on passive negligence (e.g., Putvin v. Buffalo Elec. Co., 5 N Y 2d 447, supra).

We have concluded that the complaint does not contain allegations of passive negligence against Luckenbach which would make Luckenbach liable for Muehlstein’s active negligence. An analysis in context of the allegations of the complaint of the plaintiffs as a whole convinces us that Luckenbach is charged with the creation and continuance of a dangerous situation and a participation1 ‘ in the wrong which created the damage ’ ’ which are the basis of its liability. Any contribution to the dangerous situation which was attributable to Muehlstein was made operative through the concurring acts of Luckenbach. Since actual fault is the predicate for liability against Luckenbach, it cannot claim over against Muehlstein.

None of the allegations in the complaint can be construed as charging Luckenbach with liability without actual fault on its part. After describing Luckenbach’s possession and operation of the pier, including the situs of the inflammable and explosive materials, the plaintiffs allege that Atlantic was using the torches 1 £ with the knowledge, consent and approval of the defendant, Luckenbach ’ ’, and they define the negligence of Luckenbach in terms of its continuance of the storage of the rubber in spite of its rejection of the bags of rubber for lack of fitness for transportation.

The gravamen, therefore, of the plaintiffs’ charges is that Luckenbach negligently maintained its pier and appurtenances so it was inherently dangerous and constituted a nuisance and a fire hazard. The reference to the knowledge of the torch operations of Atlantic, the storing of inflammable and explosive materials and the disorder on the pier, are illustrations of conduct which constituted negligent maintenance of the pier by Luckenbach. It is evident that Luckenbach is not charged without fault on its own part for a wrong caused solely by an actively negligent act of the shipper, Muehlstein, or in combination with a negligent act of another party. A consideration of the claim of negligence against Muehlstein confirms the conclusion that the careless management of the operations on the pier by Luckenbach is the foundation of the plaintiffs’ claim for damages against Luckenbach. Plaintiffs assert that Muehlstein negligently packed ground foam rubber, a highly combustible material, in torn and insecure burlap bags which broke and permitted the rubber to scatter about the pier near where Atlantic was using the torches; that the rubber spilled out and became a fire hazard; that the stevedores (agents of Luckenbach) refused to load the bags on a vessel, and that Muehlstein and Luckenbach carelessly failed to remove the bags and the rubber which had spilled out on the pier.

These allegations demonstrate that even in regard to the part that Muehlstein cargo played in the catastrophe the plaintiffs intend to prove that Luckenbach knew of the defective packing and was equally responsible with Muehlstein in connection with the failure to correct the disorder on the pier caused by the defective bags of rubber. It is evident then that Luckenbach was believed by plaintiffs to be at least as responsible in respect to this occurrence as Muehlstein from whom Luckenbach seeks indemnity.

Such notice is sufficient to place Luckenbaoh in pari delicto with Muehlstein and defeat indemnity. Clearly Luckenbaoh, it is alleged, had the same knowledge as Muehlstein concerning the “ kind ” of cargo it had accepted from Muehlstein and the condition of the packing, and permitted it to remain on the pier for an extended period of time. Once Luckenbaoh accepted the material and stored it on a pier operated and controlled by it, responsibility for its effect on the pier operations was assumed. The condition, the kinds of cargo, and the location on the pier naturally create different maintenance problems within the ambit of Luckenbaoh’s responsibility. Decisions in regard to the continued acceptance and storage of such cargo after notice, therefore, can hardly be deemed passive.

A comparison of the facts in McFall v. Compagnie Mar. Belge (304 N. Y. 314, supra) with the allegations in this complaint here exemplifies the differences in similar circumstances between active and passive negligence. In that case Beige was not charged with creating or maintaining a dangerous situation, but with failing to provide a safe place to work. Eecovery against Dow the shipper was permitted because Dow, without the knowledge of Beige, created the dangerous condition which affected the safety of the work area. If the containers had been free of defects, the area would have remained safe. Had Beige, in the McFall case, been charged with maintaining a dangerous place in the sama sense as Luckenbaoh is charged with here', and the defective containers were placed in the existing unsafe area, both Beige and Dow would have been actively negligent and in pari delicto. Beige would not have been cast in damages solely because of Dow’s negligence but by reason of its own participation in the wrong. In this case Luckenbaoh cannot be held liable solely because of the alleged misconduct of Muehlstein but only for its own culpability. The clistiriction was aptly expressed in Gray v. Boston Gas Light Co. (114 Mass. 149, 154), wherein the court discussing the question wrote: “ When two parties, acting together,- commit an illegal or wrongful act, the party who is held responsible for the act cannot have indemnity or contribution from the other, because both are equally culpable, or participes criminis, and the damage results from their joint offense. This rule does not apply when one does the act or creates the nuisance, and the other does not join therein, but is thereby exposed to liability and suffers damage. He may recover from the party whose wrongful act has thus exposed him. In such cases the parties are not in pari delicto as to each other, though as to third persons either may be held liable.” (Emphasis added.)

Since Muehlstein and Luckenbach are participes crimmis as to each other, if the allegations of the complaint are proven, there is no basis in fact or law for recovery over by Luckenbach.

Accordingly, so much of the order of the Appellate Division as modified the order of Special Term dismissing the complaint of defendant Luckenbach should be reversed and the question certified should be answered in the negative.

Judges Dye, Froessel, Van Voorhis and Foster concur with Judge Burke ; Chief Judge Desmond and Judge Fuld dissent and vote to affirm.

Order reversed, with costs in this court and in the Appellate Division, and matter remitted to Special Term for further proceedings in accordance with the opinion herein. Question certified answered in the negative.


author: Froessel, J.

text:
    In the Matter of Rocco F. De Perno, Appellant, v. Frank Dulan, as Mayor of the City of Utica, Respondent.
    Argued March 1, 1961;
    decided March 30, 1961.

      John B. Davison and Peter P. Paravati for appellant.
    I. Respondent’s determination removing petitioner from his public office is not supported by any evidence and is contrary to law. (People ex rel. Kennedy v. Brady, 166 N. Y. 44; Matter of Griffin v. Thompson, 202 N. Y. 104; People ex rel. Van Tine v. Purdy, 221 N. Y. 396; People ex rel. Mitchel v. La Grange, 2 App. Div. 444, 151 N. Y. 664; People ex rel. Packwood v. Riley, 232 N. Y. 283; People v. Graf, 261 App. Div. 188; People v. Herbert, 162 Misc. 817; Matter of New York Times Co., 2 A D 2d 31; Civil Serv. Forum v. New York City Tr. Auth., 4 A D 2d 117, 4 N Y 2d 866; Erie County Water Auth. v. Kramer, 4 A D 2d 545; Matter of Miller v. Kling, 291 N. Y. 65.) II. In any event the pleadings presented a genuine material issue whether respondent acted in good faith. III. Petitioner was deprived of his right to a fair hearing by being denied time in which to prepare his defense to the charges. (Matter of Healy v. Blount, 243 App. Div. 675; People ex rel. Miller v. Elmendorf, 42 App. Div. 306; Matter of Kern v. La Guardia, 289 N. Y. 776.)

      Lawrence A. Tumposky, Corporation Counsel, for respondent.
    I. A public officer shall not be either directly or indirectly interested in work to be performed for or in any services to be rendered to or for a municipal corporation. (American Soc. for Prevention of Cruelty to Animals v. Geiger, 208 Misc. 29.) II. A public officer shall not be interested directly or indirectly either as a principal, surety or in any other manner whatsoever in any contract for services entered into by a municipal corporation. (Matter of Yonkers Bus v. Maltbie, 260 App. Div. 893; People ex rel. Schenectady Illuminating Co. v. Board of Supervisors, 166 App. Div. 758.) III. Petitioner was properly removed as Municipal Civil Service Commissioner of the City of Utica, New York, in accordance with the provisions of subdivision 1 of section 24 of the Civil Service Law. (Matter of Kern v. La Guardia, 264 App. Div. 627, 289 N. Y. 776; Matter of Healy v. Blount, 243 App. Div. 675; People ex rel. Mayor of City of N. Y. v. Nichols, 79 N. Y. 582; Matter of Cregier v. Cassidy, 205 App. Div. 774.) IV. Respondent, vested with discretionary power, exercised this power of removal of appellant, and the evidence was substantial to warrant the removal, thereby his action must be sustained. (Matter of Delicati v. Schechter, 3 A D 2d 19; Matter of Haim v. O’Connell, 195 Misc. 612; Matter of Schwab v. McElligott, 282 N. Y. 182; Matter of Stork Restaurant v. Boland, 282 N. Y. 256.)
   Froessel, J.

Petitioner was appointed to the Municipal Civil Service Commission of the City of Utica on June 1, 1956, and was thereafter elected chairman of said commission (of three members) on June 30, 1956. He served continuously as such member and chairman until his removal by respondent on January 14, 1960. Throughout this period petitioner was president of Local 182 of the Teamsters, Chauffeurs, Warehousemen and Helpers Union. He was connected with the labor movement for at least 25 years.

Respondent was elected Mayor of Utica on November 10, 1959, and assumed office January 1, 1960. By a letter dated December 30, 1959, William A. Belden, business agent for Local 182, requested a meeting with respondent to discuss and negotiate, between the City of Utica and the Department of Public Works employees who were members' of Local 182, an agreement, ‘ satisfactory to all concerned covering wages, hours and working conditions ”. Respondent, so that he may be able to intelligently discuss the matter”, replied on January 2, 1960 seeking further information as to Mr. Belden’s official capacity in Local 182, and the names of city employees who were dues paying members in good standing ”. By letter dated January 4 respondent received full answers to Ms inquiries. No further communication was had between respondent or any other city official and any member or officer of Local 182. No meeting was set and no negotiations or contract were entered into.

On January 7 the Civil Service Commission notified the city administration that the summary removal of 83 Department of Public Works employees and their replacement with persons chosen by the department head violated the Civil Service Law and the rules of the commission, and that such new appointees could not be certified on the payroll for payment.

On January 8 petitioner was served with a notice of hearing and statement of charges signed by respondent, directing him to show cause why he should not be removed from office on the sole ground that there is a conflict of interest between his official duties as chairman of the Municipal Civil Service Commission and his position as president of Local 182. The alleged conflict of interest was said to be prohibited by section 19 of the Second Class Cities Law and section 3 of the General City Law.

Before the taking of any testimony, petitioner’s counsel introduced in evidence a resolution of the city employees who were members of the union, adopted the previous day, in which they resolved to withdraw from Local 182, and said local thereupon withdrew its request of December 30, 1959 for recognition and negotiation. Petitioner then moved to have the charges dismissed on the ground that no conflict of interest existed, and that the entire proceeding was premature, since no negotiations had been entered into and no contract between the city and the union had been consummated. - Respondent denied the motions and directed that the hearing proceed. The hearing consisted solely of testimony elicited from petitioner, who was called as a witness by respondent’s counsel, whereupon petitioner was promptly removed.

We are of the opinion that petitioner’s functions as chairman of the Civil Service Commission and president of Local 182 are insufficient as a matter of law to warrant his removal from office. Although subdivision 1 of section 24 of the Civil Service Law authorizes the appointing official-—in this case respondent — to remove a member of- the Civil Service Commission for cause, no adequate cause has been established here. Section 19 of the Second Class Cities Law and section 3 of the General City Law are clearly applicable only to situations where city officers may have a financial interest, direct or indirect, in a contract with the city concerning property or services.

In this respect, it is significant that these sections are entitled ‘1 Restrictions; officers not to be interested in contracts ’ ’ (Second Class Cities Law, § 19); “ City officers not to be interested in contracts ” (General City Law, § 3); and that respondent acknowledges that the cases interpreting these sections ‘ ‘ admittedly are primarily based upon conflicts of interest arising out of contract situations ”. In the first place, since no contract, or even negotiations, had been entered into by the city — indeed, even the request for negotiations was withdrawn — this proceeding would have been premature even if it were assumed that the foregoing sections had any application to petitioner’s situation.

Secondly, it is inconceivable that the Legislature intended these statutes to embrace labor negotiations or agreements. If the statutes were so construed, any officer or employee of the city (§ 19) who belonged to an organization such as the Teachers’ Union of the City of New York, the Transit Workers’ Union, the Police and Fire Department Associations, the Civil Service Employees’ Association, or any,kindred organization, would be subject to discharge if the business agent of his organization asked the city for an increase in salary or wage schedules or other benefits.

Section 15 of the Civil Rights Law guarantees the right to every citizen ‘‘ to appeal to * * * any public officer * * * for the redress of grievances, on account of employment in the civil service of the state or any of its civil divisions or cities ”. Section 108 of the Civil Service Law, which forbids strikes by public employees, expressly provides 1 ‘ that nothing contained in this section shall be construed to limit, impair or affect the right of any public employee to the expression or communication of a view, grievance, complaint or opinion on any matter related to the conditions or compensation of public employment or their betterment, so long as the same is not designed to and does not interfere with the full, faithful and proper performance of the duties of employment”. In Civil Serv. Forum v. New York City Tr. Auth. (4 A D. 2d 117, affd. 4 N Y 2d 866) the Authority was held properly to have entered into an agreement with its employees or their union representatives with respect to wages and working conditions.

There is no evidence here of anything more than a request by Belden, business agent of a union having 4,000 members, for negotiations looking toward getting ‘ ‘ decent wages and working conditions ’’for some 89 Department of Public Works employees, some of whom we are told earned $1.28 per hour. Prior to the time of the hearing, the request for negotiations had been withdrawn. It was in nowise established that petitioner had anything to do with the writing of the business agent’s letter of December 30, 1959.

We are therefore of the opinion that this is not such a case as is contemplated by either section 19 or section 3, and, since those sections constituted the sole cause for removal, the evidence was as a matter of law insufficient. Accordingly, the order appealed from should be reversed, respondent’s determination annulled, the charges dismissed, and petitioner reinstated, without costs.

Chief Judge Desmond (concurring). I concur for reversal but on the single ground that petitioner could not be held, solely because he was president of a union which did not even have an agreement with the city' but was attempting to negotiate, to be “ interested ” in a “ contract ” with the city within the meaning of section 3 of the General City Law and section 19 of the Second Class Cities Law. •

Judges Dye, Fuld, Van Voorhis, Burke and Foster concur with Judge Froessel; Chief Judge Desmond concurs in a separate opinion.

Order reversed, without costs, and matter remitted to Special Term for further proceedings in accordance with the opinion herein.


text:
    In the Matter of the City of New York, Respondent-Appellant, Relative to Acquiring Title to Real Property Required for Clearview Expressway. Morton Pickman et al., Appellants-Respondents.
    Argued February 21, 1961;
    decided March 30, 1961.

      Irwin Pakula, Maurice G. Greenberg and Gerson Pakula for appellants-respondents.
    I. The decision of the Appellate Division is not supported by substantial evidence. (Matter of Board of Water Supply of City of N. Y., 277 N. Y. 452.) II. The decision of the Appellate Division disregarded the difference in value between property zoned F and FI. III. The Court of Appeals can and should reverse the decision of the Appellate Division and grant a new trial. (Harrington v. Harrington, 290 N. Y. 126.)

      Charles H. Tenney, Corporation Counsel (Irving Genn and Seymour B. Quel of counsel), for respondent-appellant.
    The weight of evidence, notably the sale of the same property before condemnation, sales of comparable properties and assessed valuation, supports the award of the trial court to claimants Pickman. In no event can claimants receive an award greater than that found by the Appellate Division. A new trial is not justified in view of substantial evidence in the record. (Matter of City of New York [Marshall], 8 A D 2d 365; Matter of City of New York [Valley Stream], 152 App. Div. 422; Matter of City of New York [Blackwell’s Is. Bridge], 118 App. Div. 272, 189 N. Y. 512; Matter of City of New York [Ave. A], 66 Misc. 488; Love v. United States, 141 F. 2d 981; Matter of Simmons, 68 Misc. 65; Morton v. State of New York, 9 Misc 2d 674, 8 A D 2d 49, 6 N Y 2d 993; Matter of City of New York [East 161st St.], 159 App. Div. 662; Murray v. United States, 130 F. 2d 442; Matter of City of New York [Rodman Drake Park], 134 App. Div. 965, 199 N. Y. 531; Matter of Simmons [Ashokan Reservoir], 132 App. Div. 574; Matter of City of New York [East 63rd St. School Site], 191 App. Div. 892, 233 N. Y. 543; Boyd v. Boyd,
      252 N. Y. 422; Smith v. Smith, 273 N. Y. 380; People ex rel. Herzog v. Morgan, 287 N. Y. 317; Matter of City of New York [A & W Realty Corp.], 1 N Y 2d 428; Powell v. Powell, 294 N. Y. 890; People ex rel. MacCracken v. Miller, 291 N. Y. 55; Matter of City of New York [Sound View Houses], 307 N. Y. 687; Matter of Village of Middletown, 82 N. Y. 196; Waldo v. Schmidt, 200 N. Y. 199; Matter of City of New York [Vedbel Corp.], 282 App. Div. 225, 306 N. Y. 982; Matter of Board of Water Supply of City of N. Y., 277 N. Y. 452; Matter of City of New York [West 10th St.], 267 N. Y. 212; United States v. Meadowbrook Club, 259 F. 2d 41; People ex rel. Strong v. Hart, 216 N. Y. 513; New York v. Sage, 239 U. S. 57.)
   Foster, J.

Claimants Pickman appeal from an order of the Appellate Division, Second Department, which modified an award in condemnation, as fixed by the Supreme Court at Special Term by increasing the same from $710,310 to $750,000. The trial court wrote no opinion, and neither did the Appellate Division except to say: “ The awards were lower than any of the appraisals in the record. Upon all of the circumstances, we are of the opinion that the fair value of the land taken should be fixed as above specified (Matter of City of New York [A. & W. Realty Corp.], 1 N Y 2d 428; Matter of City of New York [Titus St.], 139 App. Div. 238) ” (9 A D 2d 949). The case cited from this court is authority for the proposition that a trier of the facts in a case of this kind is limited to a judicial consideration of the evidence, and may not act on his individual opinion in disregard of the evidence presented. In the present case there was no opinion evidence of .value lower than. $750,000.

The property taken embraces 829,185 square feet of land (approximately 19 acres), and was part of an original tract comprising 132 acres, known as the Oakland Golf Course. This golf course was located in a residential area in Bay side, Long Island, on the north side of the Horace Harding Expressway between Springfield and East Hampton Boulevards. The community thereabouts consisted of one-family houses, garden-type apartments and apartment houses. On the southerly side of the ExpressAvay, opposite the parcel taken, there are about 60 stores, which include a post office, banks and supermarkets. Busses stop on the Expressway directly in front of the property and run to the subway.

Apparently the land taken is close to level with the surrounding streets, except for a small rise in the westerly part thereof. Claimants assert, and it does not seem to be denied, that the nature of the topography made possible the planned construction of higher buildings without increasing their area coverage, as permitted by zoning regulations. Thus four six-story buildings and six seven-story buildings could be constructed on the land taken. The entire golf course was zoned residential F and FI, but the land taken is entirely within the F zone. There is no dispute over the fact that F zone is more suitable for the erection of apartment houses.

Title to the premises vested partly on October 15, 1957, and partly on November 26, 1957, and the proceedings were consolidated for trial. The entire golf course was purchased by claimants’ assignor on March 4, 1953 for $2,388,000, or a land unit value of 40% cents per square foot. At the time title to the land taken vested in the city, the whole golf course was vacant, unsubdivided and unimproved.

The trial court’s award for the property taken, 829,185 square feet at $710,310, indicates a value of approximately 85 cents a square foot, and the Appellate Division award at $750,000 indicates a value of 89.8 cents a square foot. This would indicate a total value of $744,608, but Keely, the city’s appraiser, rounded it off to $750,000, and such was the value adopted by the Appellate Division. Claimants’ appraiser valued the premises at a unit value of $2 a square foot, or a total value of $1,658,500. Such a vast spread between the conflicting figures of experts is not uncommon in cases of this character, but it is somewhat unique for a trial court to fix a lower value than that expressed by any appraiser, and for an appellate court to take without qualification the value opined by the appraiser for the condemnor.

Claimants urge that the circumstances mentioned raise a question as to whether due consideration was given to the evidence, and also whether the decision of the Appellate Division is supported by substantial evidence. Ordinarily the opinion of an expert, supported by actual sales, is regarded as substantial evidence (People ex rel. MacCracken v. Miller, 291 N. Y. 55), but this general rule does not apply if the expert ignored elements of value which should be considered. Claimants argue specifically that the city’s appraiser and the Appellate Division disregarded the difference in value between property in zone F and property in zone FI.

There is some hearsay evidence in the record that at the time of the trial, or just before, claimants sold the remainder of the tract for $40,000 an acre. On such a basis the 19-acre parcel taken would be worth about $760,000 (19 x $40,000). This figure is remarkably close to the figure of $750,000 as found by the Appellate Division. Since the latter court wrote nothing beyond the brief memorandum quoted, it would be mere surmise, of course, to assume that it was influenced by this sale of the remainder, and we cannot find from the record that the city’s expert took it into account. Eeal evidence of a bona fide sale of the remainder of the tract would probably have been valuable, for if the remainder brought $40,000 an acre this would have been a rather clear indication that the subject parcel was worth more per acre for it was entirely in the more favorable F zone while most of the remainder was in the less favorable FI zone.

Claimants also complain that Keely, the appraiser for the city, whose valuation was ultimately accepted, failed to give the property taken the benefit of up trends in values comparable to what he had expressed with relation to other nearby properties. A comparison was made between the property taken and the Bayside Golf Course owned by one Jack Parker, a part of which was also taken. Parker’s claim was also involved in this proceeding but was subsequently settled. In 1955 Keely appraised a part of the Oakland Golf Course, taken for the Horace Harding Expressway, which was in the F zone, a part of which is the subject of this proceeding, at 75 cents a square foot. Two and a half years later, in October, 1957, in connection with this proceeding his appraisal was 90 cents a square foot, a 20% increase. He appraised the Bayside Golf Course, which was purchased by Parker less than a year before the trial of this proceeding for 71 cents a square foot, at 85 cents a square foot, or a 20% increase also. Thus he gave an upward trend, or increase, of 20% for the Parker property, held less than a year, as against a similar increase for the claimants’ property held two and a half years. This fact alone would not indicate an erroneous method of appraisal but Keely’s explanation raises serious doubts we think. It is found in portions of his testimony which on account of their succinctness are quoted here:

“ Q. Well, how do you distinguish the fact that in one particular case after two and a half years you only gave it a 15^ increase and here after a sale of only one year you came up with the same figure ? A. * * * In the Bayside Golf Course, on the date of vesting, some one year after its purchase by Parker, Parker immediately—within two weeks of the date of his closing of title from Cord-Meyer—was physically on the tract with his steam shovels and started development. Mr. Pickman had the Oakland Golf Course, which is, as to the part taken herein, as suitable for apartment house development. While he has owned it since some 5 years, at the date of vesting had not yet started to develop an inch of the holding, and that tells me something in valuation. That there certainly was a retarding influence in value on land suitable for apartment developments to the extent that the Oakland Golf Course is, and this retarding feature was caused, as I said before, by the inability to finance in the market around the date of vesting a ten to fifteen million dollar operation that toas proper here.
# * *
‘ ‘ I observed that where people did buy land that was suitable for apartment house development in this area, they didn’t build on it either during this time. It’s a reflection of a very hard money period from all through ’56 and ’57, when you couldn’t finance this type of operation.
* # %
‘11 valued the Bayside Golf Course on the date of vesting, having in mind not only its purchase by Parker a year before, but I reflected all the elements that pertained to the valuation. I found that it was not suitable for apartment houses but for one family houses. I found that right after the sale Parker moved in and did the job. I found that in the Oakland Golf Course Mr. Pickman didn’t think enough of the availability of financing to do the same, so that he would have to sit with the land as he has with it for the past 5 years before vesting: I studied the Levitt tract, which is comparable as to use ’ ’ (emphasis supplied).

The foregoing would seem to indicate that Keely reduced his appraisal of the subject property, in part at least, because claimants did not, on account of financial inability, immediately commence the construction of apartment houses on the subject property after they became vested with title. This was a dubious rationale for the purpose of appraisal. Claimants were entitled to the value of the property based on the best use that could be made of it. The fact that they did not put the property to the best use for which it was available because of a temporary stringency in the money market, or their own financial inability, should not deprive them of the fair potential value of the property (4 Nichols, Eminent Domain [3d ed.], § 12.3112, subd. [1], par. A, pp. 64-65). Since the Appellate Division accepted Keely’s appraisal we must assume that it also accepted his method of arriving at the same. Appraisal evidence arrived at through the application of erroneous principles is unsubstantial as a matter of law, even though it may appear substantial on its face.

Claimants’ assignor purchased the entire tract from which the subject parcel was carved in March, 1953, at 40% cents per square foot. Four and a half years later they were awarded a sum which figures out at approximately 89.8 cents a square foot, or an increment in value over the purchase price of 120%. The city regards this as the outstanding element of valuation, and while it does seem impressive it is not necessarily decisive. The purchase price embraced the entire tract and the figures given must be regarded as the mean, or average price per square foot. It should not be taken to demonstrate conclusively that the land taken is of the same square foot value as the remainder of the tract, for the land taken was in the more favored F zone while the remainder of the tract was in the less favored FI zone. Thus, the 120% increment in value is not a reliable barometer upon which to rest a pro forma affirmance of the Appellate Division.

The city also points out that the assessed valuation of the land taken was $216,092, and the Appellate Division award is almost three and one-half times that amount, but it neglects to say that this figure of assessed valuation is prorated from the assessment of the whole tract of 132 acres. Hence, as a criterion for value it is subject to the same infirmity dwelt upon in the preceding paragraph. Moreover, there is proof in the record that the Borough of Queens, where the property is located, is one of the fastest growing boroughs in the city and values are probably changing with a rapidity commensurate with its growth.

As far as we can tell from the record, the parcel taken was unique, and there was no really comparable property available at the time title vested in the city. Nevertheless, sales of other properties were received in evidence. The city’s Exhibit 32 lists some 20 sales, while the claimants list 90 sales.

Obviously, many of these sales could not have a very cogent probative force in solving the problem of value presented here, and it is still more obvious that a reviewing court, unfamiliar with the terrain, cannot possibly evaluate them with even a semblance of accuracy. We, therefore, think it fruitless to discuss them, and the Appellate Division made no mention of them. However, in our opinion the order of the Appellate Division should be reversed for the following reasons: (1) the record supports the inference that the Appellate Division failed to give adequate consideration to the difference in value between land in F and FI zones where the subject property is situated; (2) the city’s expert, and the Appellate Division which relied upon his opinion, did not give full consideration to the subject property’s potential value because it was not developed due to financial reasons.

The order should be reversed, with costs to the claimants Pickman in this court, and the matter remitted to Special Term for further proceedings not inconsistent with this opinion.

Chief Judge Desmond and Judges Ftjld, Froessel and Van Voorhis concur with Judge Foster; Judges Dye and Burke dissent and vote to affirm.

Order reversed, etc.