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

text:
    Edward A. Schillawski et al., Appellants, v. State of New York, Respondent. S. E. B. Holding Corporation, Appellant, v. State of New York, Respondent.
    (Claim No. 32769.)
    (Claim No. 32760.)
    Argued November 16, 1960;
    decided March 2, 1961.

      Vincent A. O’Neil for Edmund A. Schillawski and others, appellants.
    I. There can be no presumption of a 99-foot highway over claimants’ properties. (Blackman v. Riley, 138 N. Y. 318; Matter of Rochester Elec. Ry. Co., 123 N. Y. 351; Miller v. Brown, 56 N. Y. 383; Saunders v. State of New York, 148 Misc. 712; Matter of City of New York [Brooklyn Ferry], 140 App. Div. 238.) II. No map of the Seneca Turnpike was filed in the Cayuga County Clerk’s office as required by statute. (Bromley v. Mollnar, 179 Misc. 713; Peckham v. Henderson, 27 Barb. 207; Harriman v. Howe, 78 Hun 280, 155 N. Y. 683; Goldrich v. Franklin Gardens Corp., 282 App. Div. 698; Harlow v. Humiston, 6 Cow. 189; People v. Judges of Cortland County, 24 Wend. 491; Talmage v. Huntting, 39 Barb. 654, 29 N. Y. 447; City of Buffalo v. Hoffeld, 6 Misc. 197; Marvin v. Pardee, 64 Barb. 353.) III. The statute was not complied with regarding the acquisition of title to a 6-rod roadbed. (Matter of Water Commissioners of Amsterdam, 96 N. Y. 351; Auburn & Cato Plank Road Co. v. Douglass, 9 N. Y. 444; Crouch v. State of New York, 218 App. Div. 356; People ex rel. Washburn v. Common Council, 128 App. Div. 44; Crisafulli v. State of New York, 198 Misc. 941; Bromley v. Mollnar, 179 Misc. 713.) IV. It does not appear that a 99-foot road was ever “laid out”. (People v. Judges of Cortland County, 24 Wend. 489; Iselin v. Village of Cold Spring, 120 App. Div. 576; Matter of Department of Public Parks, 86 N. Y. 437; Walker v. Caywood, 31 N. Y. 51.) V. The construction of the Seneca Turnpike statutes by the courts below violates the State and Federal Constitutions. (Sage v. City of Brooklyn, 89 N. Y. 189; Chapman v. Gates, 54 N. Y. 132; People ex rel. New York Cent. & H. R. R. R. Co. v. Priest, 206 N. Y. 274.) VI. Any right to a 6-rod right of way has long been abandoned. (Walker v. Caywood, 31 N. Y. 51; Mangam v. Village of Sing Sing, 26 App. Div. 464, 164 N. Y. 560; Barnes v. Midland R. R. Term. Co., 218 N. Y. 91; Driggs v. Phillips, 103 N. Y. 77; Shipston v. City of Niagara Falls, 187 App. Div. 421; Gucker v. Lewis, 249 App. Div. 858.) VII. Claimants’ properties were appropriated by the State. (People v. Sutherland, 252 N. Y. 86; Jones v. Cederquist, 1 Misc 2d 1020; Jones v. Delaware, L. & W. R. R. Co., 208 N. Y. 40; Rochford v. State of New York, 153 Misc. 239, 245 App. Div. 794; Reese v. State of New York, 190 Misc. 316; City of Buffalo v. Pratt, 131 N. Y. 293; Raymond v. State of New York, 4 A D 2d 62, 4 N Y 2d 961.)

      Joseph W. Bryan for S. E. B. Holding Corporation, appellant.
    Chapter 78 of the Laws of 1800 is unconstitutional, illegal and void. (Sweet v. Rechel, 159 U. S. 380; Sage v. City of Brooklyn, 89 N. Y. 189; Matter of Mayor, Aldermen & Commonalty of City of N. Y., 99 N. Y. 569; Brewster v. Rogers Co., 169 N. Y. 73; Litchfield v. Bond, 186 N. Y. 66; St. Regis Tribe of Mohawk Indians v. State of New York, 4 Misc 2d 110; Bloodgood v. Mohawk & H. R. R. R. Co., 18 Wend. 9; Matter of Rochester Elec. Ry. Co., 123 N. Y. 351; People ex rel. New York Cent. & H. R. R. R. Co. v. Priest, 206 N. Y. 274.)

      Louis J. Lefkowitz, Attorney-General {Jean M. Goon and Paxton Blair of counsel), for respondent.
    I. Present U. S. Route 20 in the vicinity of claimants’ properties is the Seneca Turnpike established by early State statutes and the State’s highway right of way in Route 20 in that area is 99 feet in width. (Leland v. Cameron, 31 N. Y. 115; People v. Diamond, 199 App. Div. 497, 233 N. Y. 130; Matter of Whitman, 225 N. Y. 1; Hamilton v. Erie R. R. Co., 219 N. Y. 343; Schieffelin v. Goldsmith, 253 N. Y. 243; Kane v. Walsh, 295 N. Y. 198; Matter of Magnotta v. Gerlach, 301 N. Y. 143; Columbia Distilling Co. v. State of New York, 183 App. Div. 345, 227 N. Y. 636; Youmans v. State of New York, 284 App. Div. 823, 309 N. Y. 653.) II. So long as any portion of the width of a highway right of way is opened for travel, the failure to use the remainder of the authorized width does not constitute abandonment of the unused portion of the right of way. (City of Cohoes v. Delaware & Hudson Canal Co., 134 N. Y. 397; Walker v. Caywood, 31 N. Y. 51; Niagara, L. & O. Power Corp. v. State of New York, 187 Misc. 527;
      Beisheim v. People, 26 Misc 2d 684.) III. Appellants have no standing on this appeal to question the constitutionality of chapter 78 of the Laws of 1800. (Flagg v. Nichols, 307 N. Y. 96; Matter of Zellner [Brooklyn Trust Co.], 299 N. Y. 243; Leviten v. Sandbank, 291 N. Y. 352; Friedman v. Universal Mercerizing Co., 238 App. Div. 805; Bolivar v. Monnat, 232 App. Div. 33.)
   Dye, J.

These appeals, by our permission, involve claims for damages arising out of an alleged de facto appropriation of land for use in the reconstruction of a State highway known as U. S. Route 20, which runs in an easterly-westerly direction between the City of Auburn and the Village of Skaneateles. The subject properties are located on a highway east of Auburn. In the course of the work done in 1951-1952, the two-lane concrete sections of the road were widened from 20 feet to 48 feet. The appellants claim that in performing this work the State encroached on lands owned by them.

In the Court of Claims the issue turned on whether the lands in question were within the boundaries of a pre-existing highway easement. The State demonstrated that U. S. Route 20, in the controverted area, originally came into existence as a part of the Seneca Turnpike pursuant to chapter 78 of the Laws of 1800, and the trial court so found. That statute provided for the establishment of the Seneca Road Company and authorized it to build the Seneca Turnpike from Utica to Cayuga Lake and westward to Canandaigua. The statute provided for a right of way six rods in width. The road was to follow as closely as possible the road of the existing Genesee road, also six rods in width.

The extensive proof offered by the claimants to show that the Seneca Turnpike was not improved to its full width does not afford any basis for extinguishing the right to the portion not so improved. Where a road has obtained its character as a public highway by user, its width is determined by the width of the improvement (People v. Sutherland, 252 N. Y. 86; cf. Beisheim v. People, 26 Misc 2d 684). But where the road has been laid out under a statute, it is the statute and not the user that determines the width (Walker v. Caywood, 31 N. Y. 51 [1865]). Nor does the failure of the State to occupy the full width, or to improve the road in the manner provided, constitute an abandonment of the easement of the unused portion (Highway Law, § 205; Walker v. Caywood, supra; Beckwith v. Whalen, 65 N. Y. 322; Mangam v. Village of Sing Sing, 26 App. Div. 464, affd. 164 N. Y. 560). Indeed, the statute itself only required improvement over a width of 24 feet.

Marvin v. Pardee (64 Barb. 353), cited by the appellants, dealt with a situation arising under chapter 75 of the Laws of 1806, which was an amendment to the prior act, affecting the Seneca Road Company by requiring the Commissioners to file an accurate map or survey of lands acquired by them in the office of the clerk of the county through which the road passed. There being no proof of statutory compliance as to filing, the court found there was no satisfactory evidence of acquisition. Here, on the other hand, we deal with a situation arising under the Laws of 1800 and that, by its terms, required no filing. That point is, in any event, not decisive.

It was established as a fact, and so found, that Route 20 is the old Seneca Turnpike as laid out pursuant to chapter 78 of the Laws of 1800. Since the Seneca Turnpike was laid out under color of statute, it must be deemed that the State acquired a right of way by prescription to a width of 99 feet as provided for in the statute. This result is in accordance with the widely recognized rule that, where a highway is defectively laid out under color of statutory authority, it will be deemed to create a prescriptive right to the width prescribed by the statute, although greater than the extent of actual user (e.g., Pillsbury v. Brown, 82 Me. 450; State v. Auchard, 22 Mont. 14; McNab v. Town of Trenton, 55 N. S. 160, 63 D. L. R. 306, 13 B. R. C. 734; see 1 Elliott, Roads and Streets [4th ed.], § 193, and numerous cases cited). The statute was notice to all that the road was three rods in width on either side of the center line. In fact, these claimants’ own abstracts of title identify this road as the Seneca Turnpike and describe the property conveyed as beginning in the center of the turnpike road subject to the easement for highway purposes. In this light the appellants’ contention as to lack of payment is of no consequence. This being so, the alleged encroachment on the north being within the right of way, compensation was properly disallowed. The parcels lying on the south side of the highway were outside of the right of way. However, since the claimants had not established any measure of damages relating to that encroachment no award was made.

The attack on the constitutional validity of the Laws of 1800, raised for the first time in this court, need not detain us. We may consider only issues raised in the court below (Flagg v. Nichols, 307 N. Y. 96, 99). Even if we assume, for sake of argument, that the statute is defective, nothing could be gained by these appellants in having the statute declared invalid since, in any event, the State had acquired a valid prescriptive right of way of 99 feet in width under color of statutory right.

The judgments appealed from should be affirmed, with costs.

Fboessel, J. (dissenting).

I dissent and vote to reverse. Except as to an admitted 450-square-foot encroachment, for which no damages were allowed, the Court of Claims held that the State acquired a 6-rod, or 99-foot, right of way simply because the statute authorized the Turnpike Company (a private corporation for private gain [Matter of Rochester Elec. Ry. Co., 123 N. Y. 351, 356-357]) to lay out a road of that width. This position strikes me as completely untenable, since the same statute required the company to purchase or condemn needed land, where it was necessary to deviate from the G-enesee Road. Seneca Turnpike (now a part of Route 20) did, in fact, deviate from the Genesee Road along the route now in question; and the State introduced no evidence whatever that the company had purchased or condemned land, along the deviation, to a width of 99 feet.

I agree with the reasoning of the court in Marvin v. Pardee (64 Barb. 353, 358) that the Seneca Turnpike statutes were not intended to effect a transfer to the company of the title to land, which it had not obtained in one of the prescribed methods. The title to land is not thus ‘ adjudged and taken ’ from one party and vested in another ” (emphasis in original). Whether or not the applicable statutes required the Turnpike Company to file a map or survey, they all prescribed two methods for the acquisition of needed property, namely, purchase or condemnation. Hence the State was obliged to show that a 99-foot right of way had actually been laid out and pursuant to such statutory authorization.

The prevailing opinion holds that the State acquired a 99-foot right of way by prescription, and notwithstanding the fact that it never used anywhere near 99 feet. In 1912 the road was a ¡narrow, two-lane dirt road, later covered by gravel; in 1928 it consisted of a macadam pavement 12 feet in width. After the county, pursuant to State authority, acquired right of way parcels in the vicinity of appellants ’ property, all of which, as found by the trial court, were located in whole or in part within the 99-foot right of way, the county turned the highway over to the State, when it was widened to 20 feet, and remained so until 1952. Although the majority do not question the general rule that property may be acquired by prescription only to the extent it is actually used, they point to an exception apparently recognized in Montana and Maine, and reason that the company having acted “ under color ” of a statute authorizing the laying out of a 99-foot right of way, it follows that the State acquired a right of way by prescription to a width of 99 feet as. provided for in the statute.”

The difficulty with this argument is that the statute did not give the company a 99-foot right of way, but simply authorized it to lay out a road that width and acquire the necessary land by purchase or condemnation. To say that the State can acquire a 99-foot right of way by prescription simply by authorizing a road that width, and then having the private road company deviate and lay it out at a considerably lesser width without compensation or condemnation, is to sanction bald confiscation and violate appellants’ constitutional rights. This statute could not constitute notice ” as the majority maintain in justification of the confiscation here sanctioned. The only landmark mentioned in the statute which could serve to inform one of the route of the proposed highway was the Genesee Road. But at issue here is a deviation from that road, the nature and course of which deviation the statute in nowise indicates. Nor do any of appellants ’ title documents militate against his claim. Walker v. Caywood (31 N. Y. 51) is clearly inapposite in this case.

As to the issue of abandonment, we do not reach it if the State failed to prove it or its predecessors ever lawfully acquired a 99-foot right of way. While it may be argued that the State in failing to lay out a lawfully acquired road to its full authorized width does not thereby lose a portion of it by abandonment, we are here faced with a situation where the road was not lawfully acquired; hence nonuser is fatal (Matter of City of New York [Ludlow Ave.], 164 App. Div. 839; Gucker v. Lewis, 249 App. Div. 858; Cobb v. County of Monroe, 8 A D 2d 755). As already noted, no portion of the road here involved was ever opened to its full width as authorized 150 years ago, there was a definite deviation, no map or survey was ever filed showing a 99-foot easement, the visible markers on the road for over 20 years preceding the 1952 reconstruction indicated a two-lane road bounded by fences, and the county, pursuant to State authorization, purchased land in 1928 located within the 99-foot right of way now claimed by the State. If an abandonment—assuming it was involved here—was not made out, then it seems to me it could never be made out.

Accordingly, the judgments appealed from should be reversed, and the ease remitted to the Court of Claims for the assessment of damages, with costs to appellants.

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

In each action: Judgment affirmed.


source: Caselaw Access Project

author: Froessel, J.

license: Public Domain

text:
    In the Matter of an Application for the Certification of Doris Coates, an Alleged Mentally III Person. Doris Coates, Appellant; Guy M. Walters, as Medical Officer of Rochester State Hospital, Respondent.
    Argued January 11, 1961;
    decided March 2, 1961.

      Vito J. Gassan for appellant.
    I. The nature of due process is such that, although it does not easily render itself to definition, the facts of this case clearly come within its general meaning. (People ex rel. Ordway v. St. Saviour’s Sanitarium, 34 App. Div. 363; People v. Adirondack Ry. Co., 160 N. Y. 225; Stuart v. Palmer, 10 Hun 23, 74 N. Y. 183; West v. Louisiana, 194 U. S. 258; People ex rel. Morriale v. Branham, 178 Misc. 728, 289 N. Y. 813, 266 App. Div. 476, 291 N. Y. 312, 292 N. Y. 127; Douglas v. Jeannette, 130 F. 2d 654, 319 U. S. 157, 319 U. S. 782.) II. Due process requires that permanent confinement, as distinguished from temporary confinement, be upon notice and hearing. The Mental Hygiene Law provides for neither proper notice nor a fair hearing. (People ex rel. Sullivan v. Wendel, 33 Misc. 496.) III. The statute in question makes no provision for notice in obtaining a final order and, according to the case law, is in violation of the due process clauses of the Federal and State Constitutions. As a corollary thereto, section 76 of the Mental Hygiene Law is likewise unconstitutional. (People ex rel. Sullivan v. Wendel, 33 Misc. 496; People ex rel. Morriale v. Branham, 178 Misc. 728, 289 N. Y. 813, 266 App. Div. 476, 291 N. Y. 312, 292 N. Y. 127; Matter of Kenny, 23 Misc. 9, 30 App. Div. 624; Dohany v. Rogers, 281 U. S. 362; Matter of Atlas Lathing Corp. v. Bennett, 176 Misc. 959; Matter of Grout, 105 App. Div. 98.) IV. Implying abstract notice does not make the statute constitutional. V. Whatever the construction of section 76 of the Mental Hygiene Law, it is unconstitutional because there is no notice or hearing before the final determination. VI. The statute in question is unconstitutional upon the further grounds that it is an encroachment by an executive officer upon the powers of the judiciary of this State. (People ex rel. Barone v. Fox, 144 App. Div. 611, 202 N. Y. 616.)

      Louis J. Lefkowits, Attorney-General (Jean M. Goon and Paxton Blair of counsel), for respondent.
    I. Sections 74 and 76 of the Mental Hygiene Law make adequate provision for notice to an alleged incompetent and for a hearing granted as of right. (People ex rel. Morriale v. Branham, 291 N. Y. 312, 291 N. Y. 826, 292 N. Y. 127; Matter of Ryan, 180 Misc. 478, 267 App. Div. 861, 292 N. Y. 715; Wilson v. Standefer, 184 U. S. 399; Louisville & Nashville R. R. Co. v. Schmidt, 177 U. S. 230; Hurtado v. California, 110 U. S. 516; Ex Parte Wall, 107 U. S. 265; People

      ex rel. Peabody v. Chanler, 133 App. Div. 159, 196 N. Y. 525; People v. Dubina, 304 Mich. 363; Matter of Gurland v. Beckenstein, 286 App. Div. 704, 309 N. Y. 969.) II. A statute, by which a final order of commitment may be made without notice or by which the court is authorized as a matter of discretion to dispense with the service of notice upon an alleged mentally ill person, is constitutional. (Sporza v. German Sav. Bank, 192 N. Y. 8; People ex rel. Morrell v. Dold, 119 App. Div. 888, 189 N. Y. 546; Matter of Walker, 57 App. Div. 1; Parker v. Willard State Hosp., 50 App. Div. 622; Matter of Egan, 36 App. Div. 47; Matter of Andrews, 126 App. Div. 794; Brayman v. Grant, 130 App. Div. 272; People ex rel. Ordway v. St. Saviour’s Sanitarium, 34 App. Div. 363; People ex rel. Sullivan v. Wendel, 33 Misc. 496; Matter of Grout, 105 App. Div. 98; People ex rel. Barone v. Fox, 202 N. Y. 616.)
   Froessel, J.

Appellant challenges the constitutionality of sections 74 and 76 of the Mental Hygiene Law, insofar as they permit the continued confinement of an alleged mentally ill person without the prior notice or hearing, which appellant maintains is required by the due process clauses of the State and Federal Constitutions.

The statutory procedure may be quickly reviewed. Section 74 provides that a person alleged to be mentally ill may be confined in an institution for the care and treatment of such persons, pursuant to a court order granted on the petition of a relative or other specified person, and accompanied by a certificate of two examining physicians, stating that such person is in need of care and treatment (§ 74, subds. 1, 2). The person alleged to be mentally ill is entitled to personal service of notice of the application for the order at least one day in advance thereof (subd. 3). However, that notice may be dispensed with in the court’s discretion, and shall be dispensed with if the examining physicians state in writing that, in their opinion, such service would be detrimental to such allegedly ill person (id.). If the petition is made by the wife, husband, father, mother or nearest relative, no notice is required to any person even though notice to the allegedly ill person has been dispensed with (id.). When no application is made for a hearing on behalf of the allegedly ill person, provided for in subdivision 5, the Judge may, if satisfied that care and treatment are necessary, immédiatély direct commitment for a period not exceeding 60 days for the purpose of observation and treatment (subd. 4).

Subdivision 7 of section 74 provides that at any time prior to the expiration of 60 days from the date of the commitment order — which authorized the temporary confinement-—-the director, physician or other person in charge of the institution to which the patient has been admitted, or a duly designated medical officer, may file a certificate in the office of the County Clerk stating, after so finding, that continued care and treatment are required. Thereupon, although no notice of the filing has been given to the court, the person confined or someone on his behalf, “ the order theretofore made by the judge shall become a final order and such patient shall thereafter remain in such institution, or any other institution, to which he may be transferred, until his discharge in accordance with the provisions of this chapter ” (subd. 7).

The discharge may be secured on the certificate of the director of the institution that the patient (1) has recovered; (2) is not mentally ill; or (3) while not recovered may be cared for at home, and that this would not be detrimental to the public welfare or injurious to the patient (§ 87). A discharge may also result at any time from a determination in a habeas corpus proceeding that the patient is sane at the time (§ 204) (Matter of Gurland, 286 App. Div. 704, 706), or as the result of a proceeding instituted under the provisions of section 76.

Section 76, the only method of discharge with which we are here concerned, provides that if the person committed, or any relative or friend in his behalf, “ be dissatisfied with the final order of a judge or justice certifying him, he may, within thirty days after the making of such order, obtain a rehearing and a review of the proceedings already had and of such certification, upon a petition to a justice of the supreme court other than the justice making such certification, who shall cause a jury to be summoned * * * and shall try the question of the mental illness of the person so certified ”. For a comprehensive statement of the prior statutory law on this subject, see Sporza v. German Sav. Bank (192 N. Y. 8).

Now as to the relevant facts. On April 17, 1957 appellant was certified to the Rochester State Hospital by order of a County Judge upon the petition of her husband and the brief joint medical certificate of two examining physicians. Personal service of notice of the application was dispensed with, pursuant to subdivision 3 of section 74, by reason of the following statement in the physicians’ certificate: “ Personal service of notice would be aggravating and detrimental to patient in her present mental state.” No facts were stated in support of this conclusion, and it would appear that appellant was not personally seen by the court prior to the issuance of the order. No hearing appears to have been demanded, as provided for in subdivision 5 of section 74.

The court’s order, which directed appellant’s admission to the hospital “ for observation and treatment for a period not exceeding 60 days ”, also provided that, upon the filing of the certificate referred to in subdivision 7 of section 74, ‘ ‘ this order shall then become final ”. Its finality, however, was subject to the review procedure of section 76. This certificate, which was duly filed in the office of the Monroe County Clerk on May 2, 1957, merely stated that appellant was found to be mentally ill and in need of continued care and treatment. No facts were stated in support of the hospital authorities’ conclusions. Appellant did not receive notice of the filing of this certificate. On May 13, 1957 appellant was released by the institution and placed in the care and custody of her mother, subject, however, to the requirement that she report to the institution once every month.

By petition dated June 17, 1957 appellant sought a jury trial of the question of her mental illness pursuant to the provisions of section 76. By an order entered September 11, 1957 her petition was denied as untimely—not having been made within the 30-day period commencing May 2,1957 (when the certificate was filed). Thereafter, by notice of motion dated February 3, 1958, appellant sought to vacate the original certification order and the other proceedings on the ground that the statute under which they were conducted, made and entered is unconstitutional. By an order entered March 28,1958 the original order and related proceedings were ratified and confirmed, and appellant’s motion denied.

Both of the above orders were appealed to the Appellate Division. The order denying appellant a jury trial was reversed and the order denying the motion to vacate was affirmed. Although they were treated together in the opinion below, only the latter order is presently before us.

The Appellate Division did not deem it necessary to pass upon appellant’s contention that the statutory provisions are unconstitutional. Bather, quoting with approval from the decision of this court in People ex rel. Morriale v. Branham (291 N. Y. 312, 317), the court stated: “ ‘ Unless the statute provides expressly or by necessary implication that an adjudication may be made without notice to the person whose detention or restraint is sought, we may reasonably find implicit in the statute a direction that the judicial decision and decree shall be made only in accordance with due process of law after notice and opportunity to be heard. ’ ” Although not expressly so stating, the Appellate Division was apparently of the opinion that the right of judicial review provided for in section 76 gave appellant sufficient opportunity to be heard on the question of her alleged mental illness. It noted, however, that a strict interpretation of that section would eliminate the patient’s right of review 30 days after the filing of the certificate with the County Clerk— ‘ ‘ a strictly ex parte act ” — of which the patient may never become aware. Therefore, it was held that “ Inasmuch as the institution is entitled to the full period of 60 days to observe and treat and in view of the further fact that the institution may act at any time during the period without notice of its action it is concluded that the period of 30 days within which a judicial review may be sought does not commence to run until the expiration of the 60 days from the date of the making of the commitment order.”

The court “.pointed out in passing ” that “ the institution, if it so desired, might be able to commence the running of the period of 30 days by [earlier] notice to the appropriate parties.” This was not made a requirement, however, and the court did not undertake ‘ ‘ to formulate a rule as to who the appropriate parties might be ”.

Appellant contends that, even under the construction placed upon the statute by the Appellate Division, the fundamental due process requirement of “ actual ” notice and an opportunity to be heard prior to the entry of the final order authorizing permanent confinement of an alleged mentally ill person is not met. Appellant also maintains that the statute is unconstitutional because permanent confinement results from the ex parte filing of a certificate by a nonjudicial officer, stating findings which the patient is given no opportunity to traverse.

Although challenging" the statutory provisions insofar as they relate to so-called permanent confinement, appellant raises no question here as to the propriety of temporary restraint without notice ”. It is conceded that, where immediate action is necessary-for the protection of society and for the welfare of the alleged mentally ill person, due process does not require notice or hearing as a condition precedent to valid temporary confinement. This is well settled (Sporza v. German Sav. Bank, supra [although subsequent notice was there given (p. 15)]; People ex rel. Ordway v. St. Saviour’s Sanitarium, 34 App. Div. 363, 370; Matter of Andrews, 126 App. Div. 794, 799).

This court has long recognized that the exact meaning and scope of the phrase “ due process of law” cannot be defined with precision (Stuart v. Palmer, 74 N. Y. 183, 191 [1878]). We there, however, stated what we consider to be the very least which would satisfy due process as follows: due process of law requires an orderly proceeding adapted to the nature of the case in which the citizen has an opportunity to be heard, and to defend, enforce, and protect his rights. A hearing or an opportunity to be heard is absolutely essential. We cannot conceive of due process of law without this.” (Emphasis supplied.) (See, also, Matter of Lyons v. Goldstein, 290 N. Y. 19, 24-25.) Due process does not, however, “ guarantee to the citizen of a state any particular form or method of state procedure ” (Dohany v. Rogers, 281 U. S. 362, 369). “ Its requirements are satisfied if he has reasonable notice and reasonable opportunity to be heard ”. (Ibid.)

Consequently, if the statute before us contained no provision affording appellant an opportunity to litigate fully the question of her mental illness and the propriety of the proceedings which led to her confinement, it would unquestionably be violative of due process. Such was the case in People ex rel. Ordway v. St. Saviour’s Sanitarium (34 App. Div. 363, supra) which involved the commitment of an inebriate under the provisions of chapter 467 of the Laws of 1892, and upon which appellant places such great reliance. Although the court held the statute to be violative of due process because it did not provide for either notice or hearing prior to an ex parte final commitment of an inebriate woman, it is suggested in the opinion that the result may have been otherwise had the statute provided for an “ investigation after commitment ” into the legality of the con-finement and the proceedings which led thereto (34 App. Div., supra, p. 374).

In the case before us, ample provision is made in section 76 for a complete rehearing and review ab initio. Thus the finality of the court order is subject to the right of review. Iti our opinion, this provision saves the constitutionality of section 74. Moreover, it should be noted, the alleged mentally ill person is not declared ‘ incompetent ’ ’; she is merely hospitalized in the first instance for not more than 60 days, and her hospitalization may then be continued beyond that period only if “ the person in charge of the institution # * * finds that such patient is in need of continued care and treatment ”.

In Matter of Blewitt (131 N. Y. 541) appellant sought to set aside a commission and proceedings in lunacy, and the appointment of a committee, on the ground that the alleged lunatic had no notice of the proceedings — or, in the alternative, that an issue be awarded to try the fact of lunacy. Special Term denied the relief to vacate, but made an order directing a jury trial of the issue. The order was affirmed by General Term. This court, in affirming the orders below, and noting that attempts are frequently made to get control of the person and property of another by the aid of lunacy proceedings, stated (p. 547) that ‘1 a very clear case should be made before the court should proceed in lunacy proceedings, in the absence of actual personal and written notice to thé party, and that unless such a case is made by the petition or affidavits, and an order made by the court dispensing with personal notice and providing for notice to relatives or others in lieu of personal notice an adjudication in the absence of such notice should be set aside.” The order below was nevertheless affirmed on the ground that appellant was permitted to ‘ traverse not the inquisition, but the original petition, thereby putting him in the same position as upon an original hearing thereon ”, and for other reasons making it very clear that a full opportunity had been presented for appellant to litigate the question of his sanity (emphasis supplied).

Appellant contends that section 76 does not cure the defect in section 74 because the hearing it provided for is after, rather than before, the order of certification has become final, and that she will have no means of determining what proof will be offered against her. This contention is wholly without merit, inasmuch as the finality of the order is subject to review under section 76. Moreover, the Supreme Court of the United States, in somewhat analogous situations, has made it clear that the provisions of an act authorizing the seizure of property without a prior judicial hearing are 1 ‘ rescued from constitutional invalidity ’ ’ by provisions affording the claimant a subsequent judicial hearing as to the propriety of the seizure (Societe Internationale v. Rogers, 357 U. S. 197, 211; see, also, Falbo v. United States, 320 U. S. 549, 554).

This principle has been extended to commitment cases by several State courts, and ex parte commitment for an indefinite time has been upheld where the statute made adequate provision for the allegedly mentally ill person to test the legality of his confinement after his admission (In Re Petition of Crosswell, 28 R. I. 137; Dowdell, Petitioner, 169 Mass. 387; Payne v. Arkebauer, 190 Ark. 614; In re Bryant, 214 La. 573). Precisely such a right is given to appellant by virtue of the provisions of section 76.

Although it is true that the order of certification directs that the papers be sealed in the office of the County Clerk ”, it also provides for their disclosure to parties to the proceedings, or someone properly interested, upon the order of the Court ”. It is inconceivable that appellant or someone on her behalf would be denied access to these papers during the course of her preparation for the jury trial which she has demanded pursuant to section 76.

The really crucial question involved in this appeal is: Does section 76 provide for adequate notice to appellant that the 30-day period, in which she must make her demand for a jury trial, has commenced to run? Obviously, the right to be heard has little reality or worth unless one is informed that the matter is pending and can choose for himself whether to appear or default, acquiesce or contest” (Mullane v. Central Hanover Trust Co., 339 U. S. 306, 314). Furthermore, the “ notice must be of such nature as reasonably to convey the required information ”, for, as the court stated, “ when notice is a person’s due, process which is a mere gesture is not due process ” (339 U. S., supra, pp. 314-315).

As previously noted, the Appellate Division held that the 30-day period within which judicial review may be sought does not commence to run until the expiration of 60 days from the making of the commitment order. The court did not require actual notice, nor did it suggest how the confined person would ever become aware that his time to demand a jury trial had commenced to run. To imply such notice from the mere provisions of the statute by virtue of the presumption that the confined person knows the law is, in our judgment, highly unrealistic. Moreover, we believe that such implied or constructive 11 notice ” falls short of even the “ mere gesture ” which was held to be insufficient in the Múlleme case (supra).

Nothing short of actual personal service of notice upon the allegedly ill person can suffice to commence the running of the 30-day period (see People ex rel. Sullivan v. Wendel, 33 Misc. 496, 498). The arguments advanced in favor of dispensing with notice of the original application for the commitment order lose their vitality once the patient has been received in custody by the hospital authorities. Surely the experience of receiving notice that a possible means of release is available can hardly aggravate the condition of a person presently restrained of her liberty against her will. Moreover, once in confinement the patient can no longer be considered a danger to society, to herself or others for she will be under the care, observation and watchful eyes of the hospital staff.

Although section 76 does not expressly provide for such notice, we find precedent for construing the statute so as to provide therefor in People ex rel. Morriale v. Branham (291 N. Y. 312, supra). In that case, appellant was retained in confinement after the expiration of his prison term by reason of an order adjudging bim to be a mental defective, entered pursuant to the provisions of section 440 of the Correction Law. Appellant had been given no notice of the application for such an order, and had no opportunity to challenge the ex parte assertion that he was a mental defective. Chief Judge Lehman noted that the statute, which did not require that notice of the application be given to the prisoner, may well be unconstitutional. Therefore, speaking for a unanimous court, he stated (291 N. Y., supra, p. 317): “ [Such a statute] must if possible be given a construction which will not offend constitutional guarantees of liberty or offend fundamental concepts of the common law. Unless the statute provides expressly or ly necessary implication that an adjudication may be made without notice to the person whose detention or restraint is sought, we may reasonably find implicit in the statute a direction that the judicial decision and decree shall be made only in accordance with due process of law after notice and opportunity to be heard.” (Emphasis supplied.) (See, also, Wong Yang Sung v. McGrath, 339 U. S. 33, 50; Matter of Hecht v. Monaghan, 307 N. Y. 461, 468.)

No express provision is contained in section 76 that notice shall not be given to the patient, and we are not compelled to imply such provision, especially when such a construction might well render the statute violative of due process. This is in accord with the well-settled principle of statutory construction that ‘ ‘ statutes must be construed to avoid not only the conclusion that they are unconstitutional, but also to avoid any grave doubts upon that score” (McKinney’s Cons. Laws of N. Y., Book 1, Statutes, § 150, p. 237, n. 97, and cases cited therein; Matter of New York Post Corp. v. Leibowitz, 2 N Y 2d 677, 687; People v. Barber, 289 N. Y. 378, 385).

In Chaloner v. Sherman (242 U. S. 455) it was held that the omission of the New York .statutes to provide expressly for notice of and opportunity to be heard at an inquisition held in the course of proceedings de lunático inquirendo was not violative of due process. The court found that the requisite notice and opportunity to be heard were required by the decisions of this court, and, therefore, were “ required by the law of New York though not expressly recited in the statute ” (242 U. S., supra, p. 460).

Appellant’s final contention is that the statute before us is unconstitutional because the continued confinement after the expiration of the 60-day period provided for in the original commitment order results from the ex parte filing of a certificate by a nonjudicial officer, whose findings are not traversable by the alleged mentally ill person. Of course they are traversable under section 76. Moreover, the maker of the certificate is not purporting to exercise the office of a Judge, but the Judge has in effect made the person named in the statute his agent to observe the patient and treat him if necessary, and if, on the basis of such observation and treatment, the patient requires further care (that is, more than 60 days), the Judge requires merely that the person named in the statute file his certificate in the County Clerk’s office. Furthermore, the initial order itself provided for its becoming a final order (although subject to review) upon the filing of the certificate within 60 days. Thus at least tentative finality resulted from an order made by a judicial officer and not from the mere fact that a certificate was filed and, if a review is demanded, the findings of the medical officer may be challenged, whereupon an additional order will be made by the court.

Appellant’s reliance upon People ex rel. Barone v. Fox (202 N. Y. 616, revg. upon dissenting opinion of Clarke, J., 144 App. Div. 611, 621) and Matter of Kenny (23 Misc. 9, affd. 30 App. Div. 624) is misplaced. In neither of those cases did the statutes involved contain a provision similar to section 76, whereby the person confined might challenge the correctness of the ex parte finding made by the nonjudicial officer. It is significant to note that the very statute which was held unconstitutional in Matter of Kenny (supra), after being amended to provide for notice and an opportunity to be heard in opposition to the ex parte factual finding, was upheld (see People ex rel. Abrams v. Fox, 77 App. Div. 245).

For the reasons heretofore stated, we conclude as follows:

(1) Appellant’s temporary confinement without actual personal notice to her was valid, and this is conceded.

(2) The continuance of confinement beyond the temporary period, under subdivision 7 of section 74, where the person in charge of-the institution “ finds that such patient is in need of continued care and treatment ” is not subject to successful constitutional challenge as violative of due process or otherwise, so long as the patient has the right to a prompt and complete hearing or review of the determination ab initio.

(3) Her continued confinement may be challenged immediately after the filing of the certificate under subdivision 7 of section 74, but the 30-day period of limitation withdrawing that right may not begin until notice of the filing has been given her. As to this appellant, the 30-day period has not begun to run.

(4) Inasmuch as the initial order is subject to the provisions of section 76, it cannot be final where review is invoked until after a determination by the court in the section 76 proceeding. Thus appellant is in fact offered the opportunity to challenge, before the court, the finding as to the need for continued treatment before that finding becomes conclusive upon her, and due process is thus satisfied.

(5) We do not agree with the Appellate Division that after 90 days the patient is forever barred. This holding, in our view, would render the statute unconstitutional.

Accordingly, the order appealed from should be affirmed, without costs.

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

Order affirmed.


author: Froessel, J. Fuld, J. (dissenting in part).

text:
    Arthur L. Purcell, as Administrator of the Estate of Della Purcell, Deceased, Respondent, v. Long Island Daily Press Publishing Company, Inc., Appellant.
    Argued January 19, 1961;
    decided March 2, 1961.

      Sidney Schreiberg for appellant.
    I. There is no such tort as negligence in the abstract. Negligence is the product of a breached duty to use reasonable care. Where there is no duty, there can be no breach. There is no duty to guard against an unforeseeable act. Defendant can be at fault only if, having the ability to foresee danger, it fails to guard against it. The Trial Judge’s refusal to charge the jury to this effect was reversible error. (Palsgraf v. Long Is. R. R. Co., 248 N. Y. 339; Ford v. Grand Union Co., 268 N. Y. 243; Di Biase v. Ewart & Lake, 228 App. Div. 407, 255 N. Y. 620; Lane v. City of Buffalo, 232 App. Div. 334; Cartee v. Saks Fifth Ave., 277 App. Div. 606, 303 N. Y. 832; Jacobs v. Alrae Hotel Corp., 4 A D 2d 201, 4 N Y 2d 769; Beickert v. G. M. Labs., 242 N. Y. 168.) II. Having ruled that supervision was an issue of fact, the court was obliged to charge the jury on that issue. Its failure to do so constituted reversible error. III. The trial court had no power to add interest to the jury’s verdict. (Harmon & Regalia v. City of New York, 286 App. Div. 825; Flamm v. Noble, 296 N. Y. 262; Faber v. City of New York, 222 N. Y. 255; Wilson v. City of Troy, 135 N. Y. 96.)

      C. Joseph Danahy, Joseph P. Devery and Bernard E. Perelson for respondent.
    I. The only question before this court on this record is whether or not, as a matter of law, interest should be added to the jury’s verdict. II. Adding interest to the jury’s verdict was proper in accordance with the law of the State of New York. (Flamm v. Noble, 296 N. Y. 262; Wilson v. City of Troy, 135 N. Y. 96; Sciaky v. Rodgers & Hagerty, 277 N. Y. 483; Weprin & Glass Bldg. Corp. v. Rosoff Subway Constr. Co., 269 N. Y. 672; Harmon & Regalia v. City of New York, 286 App. Div. 825; Squibb & Sons Inter-Amer. Corp. v. Springmeier Shipping Co., 194 Misc. 813; Myers v. Hussenbuth, 32 Misc. 717; Suydam v. Jackson, 54 N. Y. 450.) III. The negligence of defendant was overwhelmingly established. (Mott v. Consumers’ Ice Co., 73 N. Y. 543; Koester v. Rochester Candy Works, 194 N. Y. 92; Marino v. Lehmaier, 173 N. Y. 530; Karpeles v. Heine, 180 App. Div. 375.)
   Froessel, J.

Plaintiff in this action, upon a jury determination in his favor, recovered damages sustained as the result of a fire in his decedent’s building. The trial court, upon motion of counsel after rendition by the jury of their verdict (and absent a prior request that the matter be submitted to the jury), added to the amount awarded interest from the date of the fire, as a matter of right.

Two issues are presented on this appeal: The first relates to the merits, defendant contending that there was no negligence here with which it could be charged, and in that connection challenges the court’s failure to charge several requests. The second issue concerns the propriety of the allowance of interest.

On the merits, we find no error here, and have no alternative hut to sustain the verdict and its unanimous adoption by the courts below. Our disposition of the second question presented, however, as to the propriety of awarding interest, is otherwise. We are of the opinion that the power to allow interest in this case lay exclusively within the discretion of the jury, and, in consequence, it was error for the court to make such an award as a matter of right.

■ In Flamm v. Noble (296 N. Y. 262) we were called upon to decide whether interest was allowable as of right upon a verdict in an action for fraud and duress. Chief Judge Loughrah, holding that it was, reviewed the law pertaining to allowance' of interest. Actions in contract, whether for a liquidated or unliquidated amount, were controlled by section 480 of the Civil Practice Act. Interest was there allowable as of right. In tort actions, the following principles then prevailed: “interest is recoverable of right in actions for trespass and conversion, whereas in actions for injuries done to property through negligence the allowance of interest is left to the discretion of the jury. (See Wilson v. City of Troy, 135 N. Y. 96 * * * ).” (296 N. Y., supra, p. 268.) The Wilson case (135 N. Y. 96) squarely held that the award of interest in a negligence action was for the jury to determine.

In both Wilson and Flamm, the prevailing distinction between willful and nonwillful torts was criticized. As Chief Judge Loughrau stated in Flamm (296 N. Y., supra, p. 268), “ Such a distinction is manifestly unsound, because interest is essential to complete indemnity in both classes of cases. ’ ’ He was quick to note, however, immediately after the foregoing criticism {Ibid.): “ But no decision of this court makes the recovery of interest a matter of discretion where, as here, damages are demanded for a money loss caused by fraud and duress. More than that, Reno v. Bull (226 N. Y. 546) —an action for fraud—is authority the other way.”

As the matter therefore stood at the time of Flamm {supra), interest was recoverable as of right in tort actions for conversion, trespass, fraud and duress. In actions involving negligent damage to property, the cases held that the power to make such an award was reposed exclusively in the jury or the trier of the facts (in addition to Wilson and Flamm, see, e.g., Walrath v. Redfield, 18 N. Y. 457, 462; Parrott v. Knickerbocker Ice Co., 46 N. Y. 361, 369; see, also, Mairs v. Manhattan Real Estate Assn., 89 N. Y. 498, 507; Moore v. New York Elevated R. R. Co., 126 N. Y. 671, 673); and, although we twice characterized this distinction as unsound, we did not declare the law otherwise.

Notwithstanding this criticism, by way of dictum in both Wilson and Flamm (supra), of the rule as applied in negligence actions, no corrective action has been taken by the Legislature. Their awareness of the law pertaining to allowance of interest, and inclination to effect a change where, in their judgment, it would serve a salutary purpose, is evidenced by the amendment in 1927 (L. 1927, ch. 623) of section 480 of the Civil Practice Act. That section superseded our decision in Faber v. City of New York (222 N. Y. 255) which dealt with a nonliquidated contract claim. So, too, the Legislature has provided for interest on awards in wrongful death actions from the date of decedent’s death by express provision of section 132 of the Decedent Estate Law.

In our opinion, any change in the rules governing allowance of interest in negligence actions, as here, must similarly await legislative action. The established line of Court of Appeals authority in this area — which, in fact, though criticizing the rule twice, at the same time preserved it — clearly compels this conclusion.

Plaintiff contends that the ‘1 courts of this state have consistently followed the rule suggested by this court in Flamm ’ ’. But this is not so. The two Court of Appeals cases cited by plaintiff were decided before Flamm, viz., Sciaky v. Rogers & Hagerty (277 N. Y. 483) and Weprin & Glass Bldg. Corp. v. Rosoff Subway Constr. Co. (269 N. Y. 672). In the Weprin case, however, our decision was based upon defendant’s contract with the city, and we held that under such contract its liability was absolute, and was more than a covenant of indemnity; that the case, therefore, fell within the provisions of section 480 of the Civil Practice Act. In Sciaky, which appears to have involved a situation similar to that in Weprin, we allowed interest from the time of damage, but solely on the authority the Weprin case. The lower court cases cited by plaintiff were clearly and succinctly distinguished in the dissenting opinion below..

In terms of policy consideration, moreover, the implications of a projected change by us in this area of the law are quite serious. Were interest declared to be allowable as of right in this case, we would be constrained to extend the benefits of such rule to plaintiffs in actions for personal injuries — especially where claims for lost wages and medical and hospital expenses (actual out-of-pocket losses and expenditures) are involved. Compulsory addition of interest to such awards to cover periods of six to eight years or more, which it often takes for final judgment to be reached, would serve to inflate these verdicts far beyond their already high levels. If the principle of full indemnity is invoked, such awards should logically bear interest from the occurrence of the act complained of, for negligence is negligence, whether causing injury to person or property. Such drastic changes in the law should be legislatively, and not judicially, effected.

It should be stressed, of course, that by preserving the law in its present posture the principles of justice and fairness are not offended, for those whose property is destroyed or damaged by the negligent conduct of others may still recover interest. The jury, however, must award it to them and, if plaintiff had asked for it here, he might well have received it.

Accordingly, the judgment appealed from should be modified by disallowing any interest upon the verdict of the jury, and in all other respects affirmed, without costs.

Fuld, J. (dissenting in part).

I would affirm the judgment in its entirety, for I believe, with the courts below, that the plaintiff is entitled to interest as a matter of law.

There can be no doubt that an award of interest is necessary to afford a plaintiff, whose property has been damaged, full indemnity for the wrong done to him by the defendant. And it is equally indisputable that on principle such a plaintiff, whether his property is lost to him through the defendant’s willfulness or negligence, is entitled to interest, as part of his damages, as a matter of right. Indeed, Chief Judge Loughran said precisely this when, on behalf of a unanimous court, he declared just a few years ago in Flamm v. Noble (296 N. Y. 262, 268): “ We come then to the question whether the plaintiff is entitled to interest as matter of law. Under a long-settled New York rule, interest is recoverable of right in actions for trespass and conversion, whereas in actions for injuries done to property through negligence the allowance of interest is left to the discretion of the jury. (See Wilson v. City of Troy, 135 N. Y. 96, supra.) Such a distinction is manifestly unsound, because interest is essential to complete indemnity in both classes of cases.” (Emphasis supplied.)

Flamm v. Noble dealt with damages occasioned by fraud and duress and, consequently, the court was not called upon to overrule the earlier cases which had created the distinction stamped by the court as ‘ manifestly unsound ’ ’, but I have no doubt that the court meant what it said and that, had it been necessary for decision, we would have put an end to the distinction thus forthrightly condemned. The case before us does involve damages for negligent injury to property, and we should now do what we said in Flamm — and what the Appellate Division for both the First and Second Departments understood us to say (Harmon & Regalia v. City of New York, 286 App. Div. 825 [1st Dept.]; Johnson v. Scholz, 276 App. Div. 163, 165 [2d Dept.], in addition to case before us, 11 A D 2d 814; see, also, Sandak v. Combs, 26 Misc 2d 478 [App. Term, 2d Dept.])—rand expressly overrule those earlier cases.

Although the majority acknowledges this court’s repeated characterization of the distinction as unsound ”, it nevertheless insists that any change in rule ‘ ‘ must * * * await legislative action” (opinion, p. 258). With this, I cannot agree. Since the rule was court-created and court-developed, no obstacle exists to prevent the court from modifying it and announcing the doctrine which, following the modern trend (see Note, 60 Harv. L. Rev. 1158), accords with principles of reason and justice. (See Bing v. Thunig, 2 N Y 2d 656; Woods v. Lancet, 303 N. Y. 349.)

•The rule as originally formulated in this' State, as in England, was' that interest as part of the damages to property in actions of conversion and trespass could only be had at the discretion of the jury. (See Beals v. Guernsey, 8 Johns. 446; Hyde v. Stone, 7 Wend. 354; Bissell v. Hopkins, 4 Cow. 53; Rowley v. Gibbs, 14 Johns. 385.) Recognizing that such a rule was illogical because ‘ ‘ interest is as necessary a part of a complete indemnity to the owner of the property as the value itself, and in fixing the damages, is not any more in the discretion of the jury than the value”, the courts, without waiting for the Legislature to act, “ gradually abandoned ” the rule. (See Wilson v. City of Troy, 135 N. Y. 96, 104.) “ What seemed to be the demands of justice ”, wrote the court in the Wilson case (135 N. Y., at pp. 103-104), “ did not permit the principle to remain stationary, and hence it has been for years in a state of constant evolution.”

The “ demands of justice ” now require recognition that in a case of negligent injury to property, no less than in one of intentional injury, complete indemnity must necessarily include interest on the value of the property damaged. And, just as the courts did not require legislative action to justify allowance of interest as of right where the property was willfully converted, so, there is no need for them to await such action in order to deal justly in those cases where the property has been negligently damaged. What the court itself has created, it may change and, since this court has on at least two occasions criticized the ancient rule as unsound, we should now abandon it and allow the plaintiff interest on the value of the property damaged through the defendant’s carelessness.

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

Judgment modified in accordance with the opinion herein and, as so modified, affirmed, without costs.


author: Froessel, J. Fuld, J. (concurring). Van Voorhis, J. (dissenting in part).

text:
    S. Victor Wittenberg, Respondent, v. Anna G. Robinov et al., Appellants.
    Argued January 9, 1961;
    decided March 2, 1961.

      Robert Konove and Gilbert K. Gottlieb for appellants.
    I. Plaintiff’s action is barred by the Statute of Frauds. (Danann Realty Corp. v. Harris, 5 N Y 2d 317.) II. A complaint alleging fraud must be dismissed where the alleged fraud is based upon unfulfilled promises or statements as to future events.

      Arthur 8. Gowen for respondent.
    I. The merger clause in the contract of sale did not preclude a fraud action. (Danann Realty Corp. v. Harris, 5 N Y 2d 317; Crowell-Collier Pub. Co. v. Josefowitz, 5 N Y 2d 998; Bridger v. Goldsmith, 143 N. Y. 424.) II. Defendant Feinberg, the broker, is personally liable for his tort. (Lasha v. Harris, 215 N. Y. 554.)
   Froessel, J.

Plaintiff’s action against defendant Eobinov for fraudulently inducing a contract for the sale of real property will not lie. Under the authority of our decision in Danann Realty Corp. v. Harris (5 N Y 2d 317; see, also, Ernst Iron Works v. Duralith Corp., 270 N. Y. 165), the alleged misrepresentations here were disclaimed with sufficient specificity— except the alleged misrepresentation as to ownership of the kitchen ranges, which could not reasonably be said to come within the ambit of “physical condition or services”. That alleged misrepresentation, however, in view of the bill of particulars limiting plaintiff’s proof, was not material. Lack of ownership of a single range having a claimed value of $100 could hardly have induced this $32,375 sale.

With regard to defendant Feinberg, the real estate broker, however, he was not a party to the contract of sale, and the disclaimer provision by its express language did not inure to his benefit. The disclaimer provision in the contract constituted, in effect, a limitation upon the agent’s authority to bind his principal (see Ernst Iron Works v. Duralith Corp., supra; Flower City Plant Food Co. v. Roberts, 81 App. Div. 249; Waldorf v. Simpson, 15 App. Div. 297). This case, therefore, assumes the posture of a third party allegedly suffering a loss as a result of an agent’s unauthorized acts. Recourse, if any, in such case, by way of damages to recoup the loss sustained, may be sought against the agent (Laska v. Harris, 215 N. Y. 554; Kip v. Howes, 39 How. Prac. 139).

Our statement in the Danann case (supra) that the legal consequence of the disclaimer provision was to negate reliance was, in essence, only a concise way of saying that as to the seller in that case —the only party involved — no representations ever existed. That being so, there could be no reliance. There was nothing upon which to rely.

In the instant case, the representations—which plaintiff in his complaint alleges were made by the agent — were similarly declared nonexistent by the seller; and the purchaser expressly agreed to consummate the transaction on those terms. Such a declaration in the agency context here presented means, from the seller’s point of view, that any agent’s representations were unauthorized. An unauthorized representation of an agent does not exist insofar as a principal is concerned. As to the agent, however, the noncontracting party, any unauthorized representation remains real and existent — and if fraudulent he may be subjected to liability.

Accordingly, the order insofar as appealed from by defendant Robinov should be reversed, and the motion for judgment on the pleadings and dismissal of the complaint made on her behalf should be granted. In all other respects, the order appealed from should be affirmed, without costs. The question certified is answered in the negative.

Fuld, J. (concurring).

I still believe — as I wrote in dissent in Danann Realty Corp. v. Harris (5 N Y 2d 317, 323) —that a party who has induced another to enter into a contract by means of fraud should not be permitted by insertion of a clause in that contract to shield himself from its consequences. However, since I consider myself bound by the court’s decision in that case, I must perforce join in the judgment dismissing the complaint against the defendant owner. But I cannot resist observing that, although the distinction drawn between the liability of the owner and that of the agent strikes me as thoroughly unreal and unreasonable, it is compelled by the court’s conclusion in Banann that a person may by verbiage in the contract escape liability for his own fraud.

Van Voorhis, J. (dissenting in part).

The judgment entered upon the order of the Appellate Division should, in my view, be reversed so as to dismiss the complaint against the vendor’s broker as well as against the vendor. I agree with Judge Ftild that the distinction drawn between the liability of the owner and that of the agent ” is “ thoroughly unreal and unreasonable ”. I would have voted the other way in the Banann case if I had considered that such a distinction was compelled by it. Actually, however, instead of this distinction being inherent in the Bananm decision, it is inconsistent with it. The point is that where, as here, a purchaser makes a representation in his contract of purchase that he has made his own investigation in regard to specific features of the property and relies on no representations concerning them made by or on behalf of the vendor, he cannot sue anybody in fraud under the ruling in Banann for the reason that he has disclaimed reliance upon any such representation. Absent reliance upon the misrepresentations, there can be no cause of action sounding in fraud against the maker of the misrepresentation or anyone else (Sager v. Friedman, 270 N. T. 472). In that case, the court said through Lehman, J. (p. 479): “A false representation does not, without more,' give rise to a cause of action, either at law or in equity, in favor of the person to whom it is addressed. To give rise, under any circumstances, to a cause of action, either in law or equity, reliance on the false representation must result in injury.”

The Banann decision was not based upon contracting away a cause of action in fraud by promises or covenants which are charged with having been given as a result of fraud. If that had been its rationale, Judge Fuld’s dissenting opinion would have prevailed. The fraud cause of action was defeated, not on the based that it was contracted out of existence, but that the purchaser had, beyond contradiction, disclaimed reliance upon any representation of the existence of the very facts concerning which he later claimed to have been deceived to his injury.

That this was the theory of Danann appears from the following statement in Judge Burke’s opinion at pages 320-321: ‘ Here, however, plaintiff has in the plainest language announced and stipulated that it is not relying on any representations as to the very matter as to which it now claims it was defrauded. Such a specific disclaimer destroys the allegations in plaintiff’s complaint that the agreement was executed in reliance upon these contrary oral representations (Cohen v. Cohen [1 A D 2d 586, affd. 3 N Y 2d 813], supra).”

If, under the rationale of the Danann decision, a plaintiff is defeated for the reason that he did not rely upon the factual misrepresentations alleged, it can make no difference whether the misrepresentations were voiced by the principal or by his agent. Under familiar principles, no cause of action lies in fraud without reliance on the misrepresentations, even in an action against the person by whom they were uttered. I do not understand how plaintiff can be heard to assert that he did not rely upon these representations in his dealings with the vendor, from whom he bought the property, but that he did rely on them as against the vendor’s broker.

The judgment appealed from should be reversed and the complaint dismissed, with costs to appellant in this court and in the Appellate Division.

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

Order, insofar as appealed from by defendant Robinov, reversed and the judgment of Special Term reinstated as to her, without costs. In all other respects, order appealed from affirmed, without costs. Question certified in the negative.


author: Chief Judge Desmond.

text:
    The People of the State of New York, Respondent, v. Sol Steinhardt, Appellant.
    Argued January 19, 1961;
    decided March 23, 1961.

      Samuel Bader for appellant.
    I. The reprehensible tactics of the prosecutor and the partiality of the Trial Judge toward the prosecution deprived defendant of a fair trial and resulted in a denial to him of due process of law under the Federal and State Constitutions. (People v. Shapiro, 308 N. Y. 453; People v. Bai, 7 N Y 2d 152; People v. Savvides, 1 N Y 2d 554; People v. Jackson, 7 N Y2d 142; People v. Mleczko, 298 N. Y. 153; People v. Sing, 242 N. Y. 419; People v. Buzzi, 238 N. Y. 390; People v. Pignataro, 263 N. Y. 229; Mooney v. Holohan, 294 U. S. 103.) II. The undue prolongation of the trial by the prosecutor deprived defendant of a fair trial. III. The trial court committed reversible error in permitting corroborative testimony of the witness Kinnard with respect to immaterial details having no bearing whatsoever on the guilt or innocence of defendant. (People v. Nitzberg, 287 N. Y..183; Commonwealth v. Holmes, 127 Mass. 424.) IV. The trial court committed reversible error in permitting proof that Cohen lost the sight of an eye in an attack upon him by fellow prisoners, and that Kobrin had been the victim of a robbery 26 years before the one involved in the present case. V. The trial court committed reversible error in permitting Cohen and Kinnard to testify that they had made prior statements out of court consistent with their testimony on the trial. (Robb v. Hackley, 23 Wend. 50; People v. Katz, 209 N. Y. 311; Ferris v. Sterling, 214 N. Y. 249; People v. Singer, 300 N. Y. 120; Crawford v. Nilan, 289 N. Y. 444; Ellicott v. Pearl, 10 Pet. [35 U. S.] 412; People v. Edwards, 282 N. Y. 413.) VI. The trial court committed reversible error in refusing to permit defense counsel to show that the accomplice Kinnard had been released on nominal bail following her implication of defendant. (People v. Savvides, 1 N Y 2d 554.)

      Frank S. Hogan, District Attorney (Robert O. Lehrman and Richard G: Denser of counsel), for respondent.
    I. Defendant’s guilt was proved beyond a reasonable doubt. (People v. Pesky, 254 N. Y. 373; People v. McCarthy, 250 N. Y. 358.) II. The trial court committed no reversible error in receiving- or excluding evidence. (People v. Nitzberg, 287 N. Y. 183; People v. Workman, 283 App. Div. 1066, 308 N. Y. 668; People v. Murphy, 135 N. Y. 450; Turner v. City of Newburgh, 109 N. Y. 301.) III. The conduct of the Judge and prosecutor does not warrant a finding, of reversible error. (Glasser v. United States, 315 U. S. 60; People v. Hallen, 48 App. Div. 39, 164 N. Y. 565; People v. Broady, 5 N Y 2d 500.)
   Chief Judge Desmond.

After a 53-day trial in General Sessions, a jury convicted defendant of one crime of criminally buying and receiving stolen property as a felony and one crime of criminally concealing and withholding stolen and wrongfully acquired property as a felony (Penal Law, § 1308). The Appellate Division affirmed in a Per Curiam opinion (11 A D 2d 107) in which the court discussed and censured Improper conduct on the part of counsel, especially of the public prosecutor”. The court majority did not think, however, that the substantial rights of the defendant were affected by these improprieties. One of the Justices, being of the opinion that “ The improper conduct of the Assistant District Attorney precluded the defendant from obtaining a fair trial”, dissented, voted to grant a new trial and granted defendant leave to appeal to this court.

Defendant makes no attack on the insufficiency of the evidence so it will be enough to summarize it briefly. In January,- 1958 a New York City jewelry store was held up and about $140,000 worth of jewelry stolen. The holdup was planned by one Irving Cohen who procured two other men to carry out the robbery and, with a third confederate, took for himself most .of the pieces of jewelry. According to the prosecution proof Cohen had previously arranged, apparently in order to divert suspicion from himself, to turn in the robbers to the police who caught them in possession of such of the jewelry as Cohen had not taken for himself. Cohen then proceeded to sell some of his part of the loot but gave a ring and pair of earrings to Geraldine Kinnard, a women friend of his, and asked her to try to sell them. Cohen and Geraldine Kinnard as witnesses for the People testified that this defendant bought some 33 pieces of stolen jewelry from Mrs. Kinnard for $15,000 in February, 1958, about 10 days after the robbery. Defendant, who is a jeweler, took the stand to swear that he had met Mrs. Kinnard through a mutual friend and that Mrs. Kinnard asked him to have a ring repaired for her. Later, according to defendant, there were dealings between him, Geraldine Kinnard and Cohen as to jewelry, but he denied that he ever received any of the stolen property.

From beginning to end this was a most extraordinary trial, overlong and marked by many highly improper exchanges between prosecutor and defense counsel which the court could not or at least did not control.' We have never seen a record in which so many clearly improper statements were made by a prosecutor. We will refer to a few of them herein. The People do not deny the number and character of these deviations from proper trial practice but they assert that defense counsel goaded the prosecutor into many of the latter’s improper statements and that in every instance or almost every instance the trial court, by instructions to the jury, saw to it thát the jury disregarded the incidents. Neither of these explanations impresses us as adequate. Over and over again courts have reminded prosecutors that they are something more than mere advocates or partisans and that they represent the People and the People’s justice in presenting proof. We have refused to announce a doctrine that the fundamentals of fair trial need not be respected if there is proof in the record to persuade us of defendant’s guilt” (People v. Mleczko, 298 N. Y. 153, 163; People v. Savvides, 1 N Y 2d 554, 558). Other utterances by this court and the United States Supreme Court on the same general subject are People v. Fielding (158 N. Y. 542, 547); People v. Tassiello (300 N. Y. 425); People v. Levan (295 N. Y. 26, 36); People v. Jackson (7 N Y 2d 142); People v. Marks (6 N Y 2d 67); People v. Lovello (1 N Y 2d 436), and Berger v. United States (295 U. S. 78).

We are convinced that the introduction into this record of completely extraneous matters and the quarreling and bandying of insults between counsel, plus the inordinate length of the trial (see People v. Clemente, 8 N Y 2d 1), require a reversal.

We will point to some of the worst episodes. When defendant was being cross-examined, the prosecutor said to defendant in the presence of the jury that the prosecutor was not permitted by the rules of evidence 1 to state to you now what you are ” (see People v. Jackson, 7 N Y 2d 142, 145, as to this' sort of thing). A motion for mistrial was denied. At other places the Assistant District Attorney referred to defense counsel in • language which included words like ‘ ‘ puke ’ ’ and ‘ ‘ stinks ’ ’. Another motion for mistrial was denied. The prosecutor called defense counsel a liar and on several occasions accused him of 'untruth, befuddlement, entrapment, trickery, etc. As to some of these, motions for mistrial were denied. At one point the court, instead of admonishing the Assistant District Attorney, told defense counsel that he had so conducted himself as to invite the opprobrious remarks and had only himself to blame. At numerous other points the prosecutor .made remarks reflecting on defense counsel’s character and ability.

All of this, however, was mild and innocuous compared to the incredible incident wherein the two lawyers and the court refought the battle of Anzio in the Second World War. The prosecutor, cross-examining one of defendant’s witnesses, asked him whether he had ever been convicted of a crime. The answer was in the negative. Defendant’s counsel in an effort to rehabilitate the witness asked him — and got an affirmative answer to the question—as to whether he was getting a maximum pension by reason of being a wounded veteran of the Anzio campaign. It appeared that the witness had been in the 7th Begiment, 3d Division. The Assistant District Attorney then began to cross-examine him about military affairs and announced that he himself had a very good personal knowledge of that regiment. For some reason unknown he began to question the witness as to how many battalions there are in a regiment, who were the commanders, etc. He asked the witness about towns and mountain ranges and highways in the Anzio area, how long- he had been in Anzio, who was his company commander and platoon leader, etc., etc. The defense attorney said something that the prosecutor took for a slur on the latter’s valor whereupon the prosecutor listed all the military honors-he himself held. This military symposium went on for 20 pages of the record, at the end of which the prosecuting attorney asked the court to tell the jury to disregard his own statements as to his war services. Defense'objected. There was much more talk on the subject at the end of which the Judge made a statement to the jury in which he minimized the whole episode, saying in effect “ boys will be boys ”. Defense counsel excepted.

These detours from the real issues helped to lengthen the trial and the method of presenting the prosecution’s case lengthened it much more. It was, of course, necessary for the People to trace the allegedly stolen jewelry piece by piece from the jewelry store to defendant, but this process was unduly prolonged with endless repetition of details to the extent that more than 1,000 pages of testimony were taken before there was any discussion of defendant’s part in the transaction.

The court was mild in his reproofs and the jury may have gotten the impression that the Judge considered the prosecution’s tactics to be necessary and proper. As their answer to all this the People point to many improprieties and incitements by defense counsel and suggest that, since the latter was attempting to put reversible error into the record, the court and prosecutor exercised a great deal of restraint. Also, the People remind us, much of the objectionable matter was stricken and there were apologies and curative instructions on other occasions. The People ask us to conclude that defendant got a fair trial despite the circus atmosphere. The trouble is that if we accepted this version we would be accepting the doctrine which we expressly renounced in the Mleczko and Savvides cases (289 N. Y. 153 and 1 N Y 2d 554, supra): that the fundamentals of fair trial need not be respected if the proof persuades us of a defendant’s guilt. A decent respect for the courts themselves and for the law itself, aside from defendant’s rights, require that a trial like this be declared a nullity regardless of strong evidence of guilt.

Other errors are charged by appellant but none of them were serious enough to require reversal.

The judgment should he reversed and a new trial ordered.

Judges Dye, Fuld, Froessel, Van Voorhis, Burice and Foster concur.

■Judgment reversed, etc.


text:
    James T. Connolly, as Executor of Sylvester G. Connolly, Appellant, v. Eugene Connolly et al., Respondents.
    Argued February 22, 1961;
    decided March 23, 1961.

      Robert Long and Edward J. 8. Farrell for appellant.
    The city’s delivery of the checks to the decedent during his lifetime constituted payment. A debtor (city) may not pay a creditor (decedent) by check and then complain that its checks did not constitute payment. If the decedent-creditor did not complain about the means of payment selected by his debtor (city), the debtor may not complain. Absent estoppel or waiver, as here, the return of the checks was of no legal consequence.

      Lester G. Knopping for Eugene Connolly and Edna Sorahan, respondents.
    I. Under common and statutory law, the delivery and receipt of a check does not constitute payment. The facts and circumstances point to the conclusion that there was a lack of intention by decedent, while alive, to consider the checks payment. Furthermore, there was no agreement, either express or implied, wherein decedent abdicated his affirmative right of acceptance in relation to the checks. (Sweet v. Titus, 4 Hun 639; Columbia-Knickerbocher Trust Co. v. Miller, 215 N. Y. 191; General Motors Acceptance Corp. v. Associates Discount Corp., 267 App. Div. 1032, 268 App. Div. 820; Matter of Mead, 90 Misc. 263, 173 App. Div. 982, 221 N. Y. 645; Matter of Gibbons, 139 Misc. 658, 234 App. Div. 153; Curry v. Powers, 70 N. Y. 212; Glennan v. Rochester Trust & Safe Deposit Co., 209 N. Y. 12; Matter of Ludlam, 158 Misc. 283; Matter of Jaslow v. New York City Employees’ Retirement System, 9 Misc 2d 754, 6 A D 2d 1010, 7 N Y 2d 858; Wilson v. United States, 144 F. Supp. 851.) II. The contractual agreement between decedent and the city clearly provides for the manner of the disposition of the entire proceeds of the pension funds and supersedes statutes dealing with the devolution of the title to property of a deceased person. The legal representative only could deal with the checks in accordance with the contract. Further, longstanding administrative practice requires the legal representative to return the checks to the pension system. (Matter of Day v. Mruk, 307 N. Y. 349; Birnbaum v. New York State Teachers Retirement System, 5 N Y 2d 1; Matter of Maxson Corp. v. Ralph, 294 N. Y. 880; Metropolitan Life Ins. Co. v. Durkin, 301 N. Y. 376.) III. Any provisions of the Administrative Code relevant to the mode of the disbursing of the pension funds cannot unilaterally deprive the beneficiary (pensioner) of his common-law and statutory privilege to indicate nonacceptance or nonpayment. Assuming, arguendo, any ambiguity exists as to the meaning of these statutory provisions, such ambiguity must be resolved in favor of the beneficiaries.

      Charles H. Tenney, Corporation Counsel (Edward A. Doberman and Seymour B. Quel of counsel), for City of New York and New York City Employees’ Retirement System, respondents.
    The disputed sums were not assets of decedent. Decedent did not show affirmatively by acts, conduct or speech that he intended to accept the checks in payment of the Retirement Systém’s debt. The delivery of the checks and their retention, without more, did not amount to a payment as a matter of law. (Kingston Bank v. Gay, 19 Barb. 459; Persons v. Gardner, 122 App. Div. 167; Sokoloff v. National City Bank, 130 Misc. 66, 223 App. Div. 754, 250 N. Y. 69; St. Regis Paper Co. v. Tonawanda Bd. & Paper Co., 107 App. Div. 90, 186 N. Y. 563; Kruger v. Geer, 26 Misc. 772; Diskin v. Police Pension Fund Assn., 367 Pa. 273; Wilson v. United States, 144 F. Supp. 851; American Defense Soc. v. Sherman Nat. Bank, 225 N. Y. 506; Mitchell v. Security Bank, 85 Misc. 360; Carroll v. Sweet, 128 N. Y. 19; Reitz v. Krystofowicz, 166 Misc. 814; Siegel v. Kovinsky, 93 Misc. 541, 174 App. Div. 857; Columbia-Knickerbocker Trust Co. v. Miller, 215 N. Y. 191; Matter of Erlanger, 159 Misc. 185.)
   Chief Judge Desmond.

The Appellate Division, Second Department, granted plaintiff leave to appeal to us from its reversal of a reversal by Appellate Term of a Municipal Court judgment for defendants. The net result of all this was a reinstatement by the Appellate Division of the victory won by defendants after a trial on stipulated facts.

Plaintiff is the executor of the will of Sylvester Connolly who was an employee of the City of New York until he retired on March 3, 1955. He died on August 28, 1955. As a member of the New York City Employees’ Retirement System he had become entitled on retirement to choose, and had chosen, as to his retirement benefits, “ Option 1 ” (see Administrative Code of City of New York, § B3-46.0). The terms of “ Option 1 ” as applicable to Connolly’s status were as follows: he would receive during his life an annual retirement allowance of $4,013.31, payable in equal monthly installments with the further provision: “ If he die before he has received in payments the present value of his annuity, his pension, or his retirement allowance, as it was at the time of his retirement, the balance shall be paid to his legal representatives or to such person as the beneficiary, or the husband or wife or committee so electing, has nominated or shall nominate by written designation duly acknowledged and filed with the board.” Sylvester Connolly duly designated as the persons to receive such balance if any after his death: James T. Connolly, Eugene Connolly and Edna Sorahan. The two last named are, with the New York City Employees’ Retirement System, defendants in this suit. James T. Connolly, the other such beneficiary, is the same person who brings this suit in his capacity as executor of Sylvester Connolly’s will.

At Sylvester Connolly’s retirement his retirement allowance or account totaled $47,815.35. From the date of his retirement until his death the total of the monthly retirement allowances or payments due him and sent to him by the Retirement System in the form of checks was $1,985.05. He received the checks but did not cash any of them. After his death they were returned to the Retirement System by James T. Connolly and $1,985.05 was recredited to his account. The Retirement System pursuant to a resolution of the New York City Board of Estimate paid $47,815.35, the full undiminished amount of the original account, in equal shares to the three beneficiaries named by Sylvester Connolly in his lifetime. One of them, James T. Connolly, took the position that $1,985.05 thereof belonged to the estate, so he paid his one third thereof to himself as executor and brought this suit against the other two beneficiaries and against the New York City Employees’ Eetirement System for the other two thirds of the total amount of the checks.

The question for decision is: were the amounts represented by the uncashed checks “received” by Sylvester Connolly during his lifetime and so part of his testamentary estate, or, because the checks went uncashed, did the amount thereof remain at Sylvester Connolly’s death part of the retirement account balance not ‘ ‘ paid ’ ’ out during his life ?

The Municipal Court held that the checks were not payments but merely unexercised orders for payment. Appellate Term, on the contrary, stated the view that title to the checks passed to Sylvester Connolly and from him to his estate. That court pointed out that under the option certain payments were to be made to decedent during his life and that the balance only was to go after his death to the beneficiaries named in his option. When the case came to the Appellate Division the majority there held, however, that decedent by failing to cash the checks, “ postponed the receipt of payments ” and so the checks were not payments and did not diminish the full account. The two dissenters at the Appellate Division wrote that under the circumstances delivery of these monthly retirement checks constituted payment to decedent and that, although the option could according to the statute have been changed ‘ ‘ until the first payment on account ”, decedent never changed it and by retaining the checks waived his right to change it.

Plaintiff-appellant cites no authorities and, like him, we think there are no directly applicable precedents. Inapplicable is the general law as to whether or not a check imports payment. The real question is as to the meaning and purpose of the arrangement made by Sylvester Connolly with the Eetirement System when he chose his option. We agree with the Appellate Term and the Appellate Division dissent. True, the relationship between Connolly and the Eetirement System was that of creditor and debtor but that does' not answer our question. Each time Connolly received a monthly pension check that amount became his and the account was decreased accordingly. The fair and common-sense meaning of “ Option 1 ” is that there shall go to the named beneficiaries after the member’s death an amount equal only to the original account less the monthly allowances accrued to the member during his life. There is no indication that this member ever intended to change the plan. His wishes should be carried out.

The judgment appealed from should be reversed and the resettled judgment of the Municipal Court, dated December 31, 1957, reinstated, with costs in this court and in the Appellate Division.

Judges Dye, Fuld, Froessel, Van Voorhis, Burke and Foster concur.

Judgment reversed, etc.