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

text:
    Edward C. M. Kemp et al., as Trustees under a Trust Made by Margaret K. Buchanan et al., Appellants, v. Margaret J. E. J. Paterson, Appellant; Margaret R. J. Paterson et al., Infants, by Milton Pollack, Their Guardian ad Litem, Respondents, et al., Defendants.
    Argued January 21, 1959;
    decided May 21, 1959.

      George J. Schaefer for Edward 0. M. Kemp and another, as trustees, and Edward C. M. Kemp, individually, appellants.
    I. The action of the trustees in exercising their power was in accordance Avith the intention of the settlor. (Matter of Erwin, 277 App. Div. 378; Schreyer v. Schreyer, 101 App. Div. 456, 182 N. Y. 555; Matter of Clark, 280 N. Y. 155.) II. The action of the trustees in exercising their poAver was for the best interest of the settlor’s daughter. III. The poAver granted to the trustees is clear, definite and broad in scope. (Matter of Bisconti, 306 N. Y. 442; Matter of Ahrens, 301 N. Y. 701.) IV. The exercise of the power was not limited upon need or emergency. (Matter of Perkins, 245 N. Y. 478.)

      Donald Vail for Margaret J. E. J. Paterson, appellant.
    I. The decision of the trustees to transfer the entire principal of this trust to the life beneficiary was proper and authorized. (Matter of Woollard, 295 N. Y. 390; Matter of Clark, 280 N. Y. 155; Matter of Bisconti, 306 N. Y. 442; Matter of Fabbri, 2 N Y 2d 236; Cabell v. Markham, 148 F. 2d 737; Spencer v. Childs, 1 N Y 2d 103; April Prods. v. G. Schirmer, Inc., 308 N. Y. 366.) II. The decision of the trustees, made in good faith, to pay over the entire principal to the life beneficiary is conclusive. (Matter of Perkins, 245 N. Y. 478; Hamilton v. Drogo, 241 N. Y. 401; Cushman v. Cushman, 116 App. Div. 763.) III. The transfer of the entire principal to the life beneficiary as decided upon by the trustees would not be harmful to the infant children of the life beneficiary who are represented by the guardian ad litem. (Matter of Schrier, 157 Misc. 310.) IV. The transfer of the entire principal to the life beneficiary as decided upon by the trustees would be for the best interest of the life beneficiary. (Helvering v. Clifford, 309 U. S. 331; Helvering v. Horst, 311 U. S. 112.) V. The trust in question may be terminated by the transfer of the principal to the life beneficiary. (Schreyer v. Schreyer, 101 App. Div. 456, 182 N. Y. 555; Matter of Fowler, 263 App. Div. 255, 288 N. Y. 697; Carrier v. Carrier, 226 N. Y. 114; Matter of Krooss, 302 N. Y. 424; Matter of Sand v. Beach, 270 N. Y. 281; Ransom v. Ransom, 70 Misc. 30; Locke v. Farmers’ Loan & Trust Co., 140 N. Y. 135; Crooke v. County of Kings, 97 N. Y. 421; Matter of Gallien, 247 N. Y. 195.)

      Milton Pollack, in person, and Joseph A. Doran and Irving K. Rubin for Milton Pollack, guardian ad litem for Margaret ft. J. Paterson and others, infants, respondents.
    I. Termination of this trust to enable the income beneficiary to make a gift of the principal is not within the scope of the power granted to these trustees. (Sweeney v. Warren, 127 N. Y. 426; April Prods. v. G. Schirmer, Inc., 308 N. Y. 366; Matter of Durand, 250 N. Y. 45; Matter of Wentworth, 230 N. Y. 176; Roosevelt v. Roosevelt, 6 Hun 31, 64 N. Y. 651; Commissioner of Internal Revenue v. Robertson’s Estate, 141 F. 2d 855; Matter of Donlin, 177 App. Div. 184; Matter of Morse, 280 App. Div. 171; Matter of Hadden, 178 Misc. 939.) II. The termination of the trust merely to make the beneficiary a conduit for a. gift of the principal to others is not within the permitted service of the “ best interest ” of the beneficiary. (Stocker v. Foster, 178 Mass. 591; Vincent v. Putnam, 127 Misc. 647, 221 App. Div. 211; Vincent v. Rix, 248 N. Y. 76; Terry v. Rector, etc., St. Stephen’s Church, 79 App. Div. 527; Matter of Briggs, 101 Misc. 191, 180 App. Div. 752, 223 N. Y. 677; Matter of Wentworth, 230 N. Y. 176; Matter of Close, 281 App. Div. 147; Matter of Britt, 272 App. Div. 426; Matter of Niles, 122 Misc. 17, 211 App. Div. 826; Matter of Lane, 201 Misc. 1003; Matter of Pollack, 134 Misc. 212; Matter of Flood, 127 Misc. 797, 216 App. Div. 711, 243 N. Y. 598; Matter of Cushman, 143 Misc. 432.) III. The power of invasion may not be exercised to alter the benefits from and the devolution of the trust corpus. (Matter of Carroll, 274 N. Y. 288; Matter of Caswell, 185 Misc. 599, 269 App. Div. 809; Matter of Wentworth, 230 N. Y. 176; Matter of Freiberger, 177 Misc. 592; Matter of Bowers, 2 Misc 2d 482; White v. White, 197 Misc. 322; Matter of Knauss, 204 Misc. 207.)
   Fuld, J.

In 1934, Margaret Buchanan executed a deed of trust, creating the trust now before us. Insofar as pertinent, it provided that, when the settlor’s daughter, Margaret Jane, reached the age of 21 years, the settlor then being dead, the trustees were to pay over to such daughter all of the net income annually during the rest of her life and so much of the principal sums of the trust from time to time as the Trustees may deem for [her] best interest ”. And, upon Margaret Jane’s death, the trust deed continued, the corpus was to be transferred to her issue then living and, if there were none, then, to certain other designated persons. The settlor died before the daughter became 21 and, since 1950, when she attained that age, the daughter has been receiving the income. The trustees, pointing to the provision above quoted, decided, in the best of faith and for reasons which seemed to them good and sound, that they had the power to pay the entire corpus to Margaret Jane and thereby terminate the trust. Accordingly, after obtaining her consent, they brought this action in which they seek judicial sanction for what they wish to do.

The court at Special Term believed that the trustees possessed the power to terminate the trust and rendered the judgment requested. The Appellate Division, however, took a different view and reversed, Since we agree with the conclusion reached by that court and with its rationale, we may be quite brief.

The provision, authorizing the trustees to invade so much of the principal “ from time to time as [they] may deem for the best interest ” of the life beneficiary, does not empower them to turn the entire corpus over to her under the circumstances disclosed. (Cf. Matter of Bisconti, 306 N. Y. 442.) There is here no express or implied authority to terminate the trust and, while there may conceivably be a situation where the trustees would be privileged to employ all of the principal for the daughter’s “ best interest,” the present is not such a case. Nor may the rights of the remainder interests he ignored or disregarded. In short, the power to use the principal of the trust may not be enlarged into a power to terminate it.

The judgment of the Appellate Division should be affirmed, with costs to all parties appearing separately and filing separate briefs payable out of the trust funds.

Dye, J. (dissenting).

The deed of trust in question was executed in New York on April 2, 1934. The settlor, Margaret Kemp Buchanan, who was a resident of Scotland and married to a British subject, executed the trust while here on a visit. The instrument provides that it be governed by the laws of this State. New York residents were appointed trustees to administer the trust property, all of which is located in New York.

The deed provides in pertinent part that after the grantor’s death and after the daughter, Margaret Jane Elizabeth Jardine Paterson, defendant-appellant herein, attains majority, the trustees shall collect and pay over the net income to her during her lifetime. Both events have occurred, that is, the grantor has died (in 1940), and the daughter (defendant-appellant) attained the age of 21 years in 1950. Since 1950 defendant-appellant has received the income of the trust under paragraph 3, which reads: “3. When said Margaret Jane Elizabeth Buchanan reaches the age of twenty-one years, if the said Grantor be then dead, then to pay over to said Margaret Jane Elizabeth Buchanan all of the net income annually during the rest of her life and so much of the principal sums of this trust from time to time as the Trustees may deem for the best interest of said Margaret Jane Elizabeth Buchanan.”

The trust assets remain almost the same today as at the time of the execution of the trust in 1934.. Such assets are-valued at approximately $700,000 and produce an annual income of about $35,000. Defendant-appellant and her husband mow -live in Scotland with their three infant children. Both are well -to do in their own right. Mrs. Paterson has an annual income of about $13,000 independently of this trust income; her husband has an annual income of about $28,000. They live within their means and there is no claim that the trust funds are needed for support or any extraordinary financial emergency.

The decision to terminate the trust is for a wholly unrelated reason, namely, in the exercise of ordinary business prudence. It is an undisputed fact that, under existing tax statutes, the trust income payable to the life beneficiary is subject to a tax of 92%% made up of 42%% ordinary income tax, plus 50% surtax. When these rates are applied to the current annual income the tax collector takes $32,375 while the beneficiary, for whom the trust was created, gets a mere $2,625. Under the present arrangement if the life beneficiary dies the corpus would be subject to a British estate tax amounting to 65% which means that upon distribution the tax collector would take $455,000 nearly two thirds of the principal, while the remaindermen would get less than one third or about $245,000 a consequence which the trustor could scarcely have envisioned as being “ for the best interest ” of the beneficiary. By terminating the trust in the manner proposed, the income would only be subject to an ordinary income tax at a much lower bracket and the corpus would become available to the named remaindermen without deduction for tax. Obviously such a plan would not be detrimental to the beneficiary. She gets only a nominal amount from the income as it is. She doesn’t need the income and, on the other hand, she has a keen desire to have the estate so managed that the income will not be confiscated by the tax collector, but will be available for the education and support of her children and that the principal be preserved as nearly intact as possible following her demise.

Everyone connected with the case agrees that the trustees are acting honestly and in good faith. The controversy is whether they have the power to terminate the trust by paying out the entire corpus to the life beneficiary. The answer to a problem of this sort is a matter of intent, to be ascertained from a reading of the trust instrument in its entirety in the light of the circumstances under which it was made. We may not rely on a single word or phrase to spell out an intent that a fair reading of the whole does not warrant (Matter of Fabbri, 2 N Y 2d 236; Cabell v. Markham, 148 F. 2d 737; cf. April Productions v. G. Schirmer, Inc., 308 N. Y. 366).

The Special Term reads the trust document as vesting the trustees with an absolutely free and untrammeled discretion to deal with the trust estate, limited only by the obligation to act honestly and in good faith, which was in no way inhibited by section 15 of the Personal Property Law.

The Appellate Division, in reversing the order of Special Term, took the view that what the trustees proposed to do was “ an unwarranted departure from the dispositive provisions of the * * # trust ’ ’. In their view, the settlor intended to benefit not only her daughter, but also the remaindermen and that, when she used the phrase “ best interest ” of the beneficiary, she in effect restricted the trustees to such invasion of principal as would benefit the cestui que trust. They were frank enough to concede that the proposed transfer would “in a sense * * * serve the beneficiary’s ‘best interest’ ”.

When fairly read, the trust instrument is instinct with a desire and intent on the part of the settlor to preserve her American estate for the benefit of her daughter and her daughter’s children. The settlor had been born in New York of American parents. She had a substantial expectancy in the estate of her mother. She had married a British subject and, in so doing, lost her American citizenship. She was concerned about the impact of her marital status on her American funds. Accordingly, she executed this trust in 1934, assigning to it certain shares which she owned in the family business and assigning the shares that would come to her upon her mother’s death. She named her mother and stepfather as trustees, to whom she gave very broad powers and authority, although she retained the right to withdraw, add to or substitute other securities and to change and revoke the trust instrument at will. Thereafter she made at least two changes. Because the property placed in trust and what she expected to receive in the future came from her mother, she provided that the trust income be paid to her mother and stepfather during their lifetime or until her own daughter (then an infant 5 years of age) reached the age of 21 years, when she was to receive the income for her life ‘ ‘ and so much of the principal sums * * * from time to time as the Trustees .may deem for the best interest of said Margaret Jane Elizabeth Buchanan [now Paterson].” These are the powers the trustees have exercised since the death of grantor in 1940 and, since Margaret has attained the age of 21, the only limitations on their powers have been removed save only what, in their sole discretion, was for the ‘6 best interest ’ ’ of said Margaret. This included permission to “pay over” to the beneficiary “so much” of the principal sum from “time to time”. No limitation is placed on the amount to be paid, nor does such payment depend on financial need of the beneficiary for support or otherwise. “ So much ” was to be measured by the “ best interest ” of the beneficiary. The authority of the trustees to pay ‘ ‘ so much ’ ’ from “ time to time ” is not a restriction on payment of the whole if the trustees so decide, but merely an intimation that the trustees’ power would not be exhausted by payment of less than the whole (see Matter of Clark, 280 N. Y. 155).

It is true that, upon consummation, the economic status of the beneficiary will be reduced by the nominal amount of income available to her after taxes but, on the other hand, she will have in effect attained the equivalent of full enjoyment of the benefits of the trust. The beneficiary here is no worse off than the donor who detached certain bond coupons before they were due and gave them to his son, thereby precluding himself from the enjoyment of the income they represented. In saying that he was nonetheless taxable, the court observed: “ The enjoyment of the economic benefit accruing to him by virtue of his acquisition of the coupons is realized as completely as it would have been if he had collected the interest in dollars and spent them for the purposes named” (Helvering v. Horst, 311 U. S. 112, 117; cf. Helvering v. Clifford, 309 U. S. 331).

In dealing with finances for the benefit of others, the trust apparatus provides many advantages, principal of which is the flexibility and the benefits to be derived from the experienced and untrammeled discretion of dependable trustees to carry out the settlor’s intention. These trustees were in a particularly advantageous position to carry out the wishes and intentions of the settlor. She reposed complete confidence in them. They had been instrumental in creating the fund in the first place; they knew the family setup; were familiar with the settlor’s desires in respect to her American estate, that her daughter Margaret was then only 5 years of age, that when she reached 21 the settlor wanted her “best interest” taken care of. It was this aspect that was paramount and it Avas this she charged her trustees to perform. The principal trustee, Mr. Kemp, whose judgment was controlling, testified without contradiction that the dominant purpose of the trust was to pass the trust property on to Mrs. Paterson after the death of the grantor when, in the judgment of the witness, it was for her “best interest” to have it. As we have seen, the settlor reposed in the trustees alone the responsibility of making that determination. Had they transferred the principal in more than one payment, no question could or probably would have been raised. What practical difference then is there in making the transfer in one payment1? To repeat: the trustees had the sole right and duty in their absolute discretion to pay “ so much” “from time to time” as they deemed “for the best interest ’ ’ of the beneficiary. To say they cannot do this is to defeat the clearly expressed intention of the settlor.

It would be most incongruous to hold that this trust must be continued until the beneficiary has died and it has been ascertained as a certainty whether any collateral, remote, contingent remaindermen, now unknown, are eligible to share in the distribution. Indefinite suspensions by means of trusts are not favored by New York law. They can be created for only limited and specified purposes (Matter of Fowler, 263 App. Div. 255, affd. 288 N; Y. 697). As we said in Carrier v. Carrier (226 N. Y. 114, 122): “ The welfare of society * * * does not tolerate limitations that will last throughout the ages ’ ’. Wills and trust agreements are construed in cases of doubt — and here I have no doubt — to vest property and not to leave it tied up or contingent (Matter of Krooss, 302 N. Y. 424).

The guardian ad litem has stressed at great length his contention that this is a spendthrift trust which the beneficiary is trying to destroy in violation of section 15 of the Personal Property Law. This, of course, is not so. The beneficiary consents to the payment over, but the determination to pay over is in the exercise of the trustees’ sole discretion. Section 15, as we read it, contemplates situations not in the beneficiary’s “best interest”. It has nothing to do with the underlying plan and purpose of this trust, as everything about it, including the trustees’ determination, is being done in the beneficiary’s ‘1 best interest ’ ’. There is no ambiguity in the direction to pay the income and principal in the circumstances. The only limitation is that of 1 ‘ best interest ’ ’ which the court below read as a restriction “for such objects and purposes as, in their judgment, would be beneficial to the cestui que trust ’ \ That, of course, is exactly what the settlor intended, subject only to the restraint of acting honestly and in good faith. Here there is no improper motive. Management of funds in the light of tax laws is entirely legitimate. A careful search of the trust makes no mention of financial need or emergency. Only one restraint is imposed and that is to be measured by ‘ ‘ best interest ’ ’ of the beneficiary.

For these reasons, the judgment appealed from should be reversed and that of Special Term reinstated, with costs to all parties appearing separately, filing separate briefs, payable out of the trust funds.

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

Judgment affirmed.


source: Caselaw Access Project

author: Burke, J.

license: Public Domain

text:
    In the Matter of the Probate of the Will of Katherine Walther, Deceased. Karolina W. Barnard, Appellant; George Walther, Respondent.
    Argued January 22, 1959;
    decided May 21, 1959.

      Victor Levine for appellant.
    The evidence was insufficient to sustain the verdict of undue influence. (Matter of Ruef, 180 App. Div. 203, 223 N. Y. 582; Smith v. Keller, 205 N. Y. 39; Matter of Henderson, 253 App. Div. 140, 278 N. Y. 531; Matter of Dowdle, 224 App. Div. 450, 256 N. Y. 629.)

      Sidney B. Coulter for respondent.
    There is ample evidence to sustain the submission of the case to the jury and the jury’s verdict. (Marx v. McGlynn, 88 N. Y. 357; Rollwagen v. Rollwagen, 63 N. Y. 504; Matter of Van Ness, 78 Misc. 592; Matter of Hermann, 87 Misc. 476; Delafield v. Parish, 25 N. Y. 9; Matter of Anna, 248 N. Y. 421; Matter of Thomas, 140 Misc. 446; Tyler v. Gardiner, 35 N. Y. 559; Matter of May, 184 Misc. 336.)
   Burke, J.

The decedent, an incompetent, executed a will 16 months before her death, in which she bequeathed her residuary estate to her sister, the proponent. The family of the decedent consists of her sister; three brothers residing in Germany; a predeceased brother; four nephews, three of whom reside in this country and two nieces, both residing here. One of the nephews filed objections to the probate of the will, alleging, inter alia, that the will was the product of undue influence.

The jury has found that the will was procured by undue influence. Motions for a directed verdict and for a new trial were denied. The decree entered denying probate has been affirmed by the Appellate Division.

The sole question for our consideration is the sufficiency of the evidence bearing on the issue of undue influence.

Katherine Walther, a spinster, aged 84 at the time of her death, lived in solitude in an apartment above stores in a building owned by her in the City of Syracuse. Distressed by the squalid condition of the apartment and her lack of cleanliness, her sister and brother-in-law arranged for a physical and mental examination by three physicians. After the examination the doctors recommended her removal to a nursing home. On November 8, 1951, pursuant to court order obtained on the application of her sister, Mrs. Barnard, the decedent, over her protests, was removed from her apartment and taken to a private nursing sanitarium. In February, 1952 testatrix was declared incompetent and Mrs. Barnard was appointed committee.

Prior to her death in June, 1954, the decedent was lodged in the sanitarium during the following periods: November 8, 1951 to February 22, 1952; May 3, 1952 to July 2, 1952; January 14, 1953 to February 6, 1953; and November 28, 1953 to December 21, 1953. In the intervening periods she was cared for by her sister and brother-in-law in their home.

While at the nursing home she received essentially custodial nursing care. Although she initially objected to such treatment, she was thereafter a co-operative patient and responded to care. The decedent repeatedly voiced a desire to return to her apartment, but the attending physicians advised against such an arrangement, basing their judgment in part upon their diagnosis of senile psychosis.

Although some friends of the decedent were denied entry to the sanitarium at the Barnards’ request, there is evidence that these friends tended to upset her. Moreover, the physicians testified that the prohibition was enforced in the exercise of their best medical judgment. It is undisputed that the testatrix did receive many visitors at the sanitarium and all friends and relatives who called to see her at the Barnard residence were admitted.

Since childhood, the proponent had been particularly close to her sister. She visited the decedent almost daily during the five-year period preceding the hospitalization. Proponent and her husband concerned themselves with decedent’s personal affairs, particularly decedent’s relations with her tenants. It is obvious that such conduct would not endear them to the tenants or to the decedent. Miss Walther, annoyed by these actions, ordered them to “stay out of her affairs” and remarked to others that the ‘ ‘ Barnards were after her money ’ ’. During the initial stay at the sanitarium she commented that she was practically kidnapped, was not sick and was there only because “Lena [Mrs. Barnard] wanted her money”.

The draftsman of the decedent’s will was originally retained as attorney in connection with a case concerning the incompetent’s property. Thereafter he was appointed as a cosigner of the committee checks. Subsequently at a meeting with the sister as committee, he was informed by her that the decedent desired to make a will.

Obedient to the wishes of the decedent, the attorney arranged to interview, and did interview, the decedent alone at the Barnard residence. He testified that she was precise, rational and decisive in answering questions in regard to her relatives, her property and its disposition. Four days later the attorney returned and reviewed the proposed distribution with her in complete privacy. According to the attorney, the decedent at that time said: “I don’t wish to leave anything to my nieces and nephews in this country because they never paid much attention to me, and that was true even before I was sick and it certainly is true now.” When the lawyer informed her that a distributee could object to the probate of the will, decedent stated that she expected him 4 ‘ to put up every sort of a fight to prevent anybody from sharing in this estate except my sister and the Church ”.

Before the will could be executed, decedent suffered a slight stroke and was again placed in the sanitarium. FoEowing assurances from her physicians as to her competency, the attorney delivered the will to her brother-in-law and instructed the physicians in the legal requirements necessary for the proper execution of a will.

When the attorney received the executed will, he noticed that the decedent had raised a bequest to her church from $200 to $500 by an ink interlineation. Because of the mental condition of the decedent the lawyer desired a ‘1 perfect ’ ’ original for probate. He, therefore, redrafted the will and promptly delivered the amended will to the physicians for execution.

The two psychiatrists attending the decedent were the subscribing witnesses to both wills executed on the same day. On both occasions, they testified, she requested that the will be read to her. After it was read to her she declared it to be her last will and testament and signed the document in their presence. She then requested them to witness her will and both witnesses swore that they signed in each other’s presence.

The draftsman did not witness the execution. He preferred, he said, to leave the question of decedent’s testamentary capacity to the professional opinion of the subscribing psychiatrists.

Her former attorney testified that she had stated to him on many occasions that she intended to execute a will. While she never mentioned a proposed distribution, it was his recollection that she indicated a desire to leave the greater part of her estate to charity. He also recalled that she mentioned her brothers and sister but not her nieces and nephews.

The concept of undue influence does not readily lend itself to precise definition or description. But this court, long ago, had established the criteria by which undue influence is to be determined: “It must be shown that the influence exercised amounted to a moral coercion, which restrained independent action and destroyed free agency, or which, by importunity which conld not be resisted, constrained the testator to do that which was against his free will and desire, but which he was unable to refuse or too weak to resist. It must not be the promptings of affection; the desire of gratifying the wishes of another; the ties of attachment arising from consanguinity, or the memory of kind acts and friendly offices, but a coercion produced by importunity, or by a silent resistless power which the strong will often exercises over the weak and infirm, and which could not be resisted, so that the motive was tantamount to force or fear * * * lawful influences which arise from the claims of kindred and family or other intimate personal relations are proper subjects for consideration in the disposition of estates, and if allowed to influence a testator in his last will, cannot be regarded as illegitimate or as furnishing cause for legal condemnation” (Children's Aid Soc. v. Loveridge, 70 N. Y. 387, 394-395; see, also, Smith v. Keller, 205 N. Y. 39, 44; Matter of Schillinger, 258 N. Y. 186, 191).

With these guideposts before us, we think that the objectant has not sustained the burden of proof, and that the evidence here was insufficient to support a finding of undue influence.

The record is devoid of any direct evidence that the proponent interfered with the making of the will. Mrs. Barnard did not draft the document; she did not dictate it; she was not present when its proposed contents were discussed; she was not present when the will was executed. The circumstances surrounding the drafting and execution of this document fall far short of a showing that undue influence was exercised. On the contrary, they indicate that the will was the product of the free and unfettered act of the testatrix (Smith v. Keller, 205 N. Y. 39, supra).

The subscribing witnesses, both psychiatrists, testified that they were the only ones present when decedent signed her will, and that she was rational and not under any restraint or undue influence (Holcomb v. Holcomb, 95 N. Y. 316, 320).

Of course, undue influence may also be proved by circumstantial evidence (Rollwagen v. Rollwagen, 63 N. Y. 504, 519), but this evidence too must be of a substantial nature. Evidence must be adduced from which inferences of undue influence can be reasonably drawn before a will should be denied probate (Matter of Powers, 176 App. Div. 455; Matter of Fleishmann, 176 App. Div. 785; Matter of Ruef, 180 App. Div. 203, affd. 223 N. Y. 582).

While the evidence in this case may be consistent with the hypothesis that the chief beneficiary induced the will by undue influence, the evidence is equally consistent with the assumption that the will expressed the decedent’s own voluntary intent. “ An inference of undue influence cannot be reasonably drawn from circumstances when they are not inconsistent with a contrary inference.” (Matter of Ruef, 180 App. Div. 203, 204, affd. 223 N. Y. 582, supra.)

The fact that the draftsman was not the personal attorney of decedent, but rather a stranger solicited by the proponent, does not support a finding of undue influence in view of the procedures followed in drafting and executing the document. (Matter of Martin, 98 N. Y. 193; Matter of Voorhis, 125 N. Y. 765, affg. 54 Hun 637; Matter of Isham, 287 N. Y. 564.)

So, too, the mere fact that one is the sole legatee or sole distributee is not in itself evidence of the exercise of undue influence. (Matter of Dowdle, 224 App. Div. 450, affd. 256 N. Y. 629.)

AdditionaEy, the wiE here is not unnatural or the result of an unexplained departure from a previously expressed intention of the decedent. (Tyler v. Gardiner, 35 N. Y. 559; Eckert v. Page, 161 App. Div. 154, 156.) Decedent left her estate to her sister, who was, beyond doubt, her most intimate companion. The only other close relatives in the family group were brothers living in Germany. The nephews and nieces residing in this country were not attentive. Under these conditions we may readily conceive that decedent would leave the bulk of her worldly possessions to a relative who was soEcitous of her weE-being. Viewed in this manner, the wiE appears to be the result of consanguinity and the prompting of affection (Children’s Aid Soc. v. Loveridge, 70 N. Y. 387, supra).

A mere showing of opportunity and even of a motive to exercise undue influence does not justify a submission of that issue to the jury, unless there is in addition evidence that such influence was actually utilized. (Cudney v. Cudney, 68 N. Y. 148, 152; Matter of Reid, 298 N. Y. 878.) It seems to us that the proponent and her husband were very close to the decedent. Moved by a sense of kinship and family duty, they, confronted with a stubbornness common to independent elderly people, compeEed the decedent to submit to needed medical treatment and nursing care. Unquestionably she resented this intrusion into her private affairs, but this was only a natural reaction under the circumstances. The evidence does not irresistibly exclude the inference that family ties, natural demands of love and affection prompted the decedent to dispose of her property in this manner. Mrs. Barnard aided her sister both morally and physicaEy during her lengthy iEness and is now unfairly charged with undue influence by a relative who was almost a stranger and who paid little or no attention to decedent while she lived.

The contestant’s position is not aided because of the relationship of sisters (Matter of Brand, 185 App. Div. 134, 139-140; see, also, Matter of Martin, 98 N. Y. 193; cf. Matter of Moskowits, 303 N. Y. 992) or that Mrs. Barnard was a fiduciary acting as committee for her sister. The sense of family duty is inexplicably intertwined in this relationship which, under the circumstances, counterbalances any contrary legal presumption (see Children’s Aid Soc. v. Loveridge, supra; Matter of Kindberg, 207 N. Y. 220, 228; Marx v. McGlynn, 88 N. Y. 357, 373; Matter of Hurlbut, 48 App. Div. 91, 93).

We conclude that the record as a whole and the circumstances surrounding the execution of this will, individually or collectively, were insufficient to present a question of fact for the jury. The evidence is in no way inconsistent with the assumption that the will expresses the voluntary intent of the testatrix and does not satisfy the test that intervention and undue influence can only be established by evidence that is not inconsistent with a contrary hypothesis (Matter of Williams, 141 N. Y. 572; Matter of Ruef, supra; Matter of Fleischmann, supra; Davids, New York Law of Wills, § 70, p. 118).

There is no evidence presented requiring the submission of the case to the jury and proponent’s motion for a directed verdict should have been granted. Therefore, the order of the Appellate Division and the decree of the Surrogate’s Court should be reversed, with costs to all parties appearing separately and filing briefs, payable out of the estate, and the matter remitted to the Surrogate’s Court with directions to admit the will to probate;

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

Order of Appellate Division and decree of the Surrogate’s Court reversed, with costs to all parties appearing separately and filing separate briefs payable out of the estate, and matter remitted to the Surrogate’s Court for further proceedings in accordance with the opinion herein.


text:
    In the Matter of the Claim of Agnes Crawley, Claimant, against Charles Failla et al., Appellants, and Margaret Reuter et al., Respondents. Workmen’s Compensation Board, Respondent.
    Argued January 6, 1959;
    decided May 21, 1959.

      Ralph 8. Stowell and Joseph D. Edwards for appellants.
    The awards to claimant-respondent for the period from January 2, 1952 to March 13, 1953 are not in accordance with the Workmen’s Compensation Law. (Matter of Braunstein v. General Mar. Repair, 307 N. Y. 296; Matter of Swirsky v. Brooklyn Ambulance Serv., 3 N Y 2d 943.)

      Louis J. Lefkowitz, Attorney-General (Daniel Polansky, Paxton Blair and Roy Wiedersum of counsel), for Workmen’s Compensation Board, respondent.
    The award herein was consistent with the provisions of subdivision 6 of section 15 of the Workmen’s Compensation Law requiring that “ In no event shall compensation when combined with decreased earnings or earning capacity exceed the amount of wages which the employee was receiving at the time the injury occurred.” (Matter of Meszaros v. Goldman, 307 N. Y. 296; Matter of Braunstein v. General Mar. Repair, 307 N. Y. 296; Matter of Zyla v. Juilliard & Go., 277 App. Div. 604; Matter of Conway v. Aluminum & Brass Co., 279 App. Div. 82, 304 N. Y. 571; Matter of Bechler v. Hecht’s, 283 App. Div. 901, 307 N. Y. 940; Matter of Worden v. General Drop Forge Corp., 285 App. Div. 910, 308 N. Y. 1052; Matter of Swirsky v. Brooklyn Ambulance Serv., 3 N Y 2d 943.)

      William F. Fischer, Jr., and Herbert Hastings, Jr., for Margaret Reuter and another, respondents.
    I. The decision of the board holding that Charles Failla, employer, and its insurance carrier, the Hartford, were liable for 50% of the compensation due, was proper and not in violation of the provisions of the Workmen’s Compensation Law. (Matter of Braunstein v. General Mar. Repair, 307 N. Y. 296.) II. The issue raised by appellants is res judicata.

   Fuld, J.

The appeal, here by our permission, involves the reach of our decision in Matter of Meszaros v. Goldman and Matter of Braunstein v. General Mar. Repair (307 N. Y. 296) and calls upon us to decide whether, in the case of successive industrial accidents or disablements resulting from occupational disease, an award may be made against the last employer, based not on wage-earning capacity at the time of the latest accident or disablement, but on the highest wage earned by the claimant in any of his employments between his first and latest injury or disability. More concretely, is an award against the last employer permissible where claimant’s earnings, following his latest disablement, exceed the wage which he was receiving when such latest injury occurred?

Agnes Crawley, while working as a beautician and hairdresser for Margaret Reuter, contracted an occupational disease, contact dermatitis. She became disabled in January of 1947 and, in connection with making awards for total and partial disability, the claimant’s average weekly wage was fixed at $56.83. In February, 1948, just about a year after her first exposure, the claimant obtained employment with the Park View Beauty Salon, hut, several months later, in August, she gave up this job because the skin condition from which she had previously suffered reappeared. Then, in October, 1948, she became a manicurist for the appellant Failla, but recurrence of the dermatitis, some six weeks later, forced her to quit work on November 14, 1948. Her average weekly wage while employed by the appellant amounted to $40.

Between the years 1947 and 1952, the claimant received a number of awards for disability, either total or partial as the evidence indicated, because of her condition of dermatitis. By a decision made in November of 1951, the board found that both Reuter and Failla (and their respective carriers) were equally liable for any liability subsequent to November 14, 1948 — when she left Failla’s employ—and awards on that basis appear to have been made until March of 1953. However, by further decisions, handed down on March 23, 1953, it was determined that, while Failla was not liable for any reduced earnings, Reuter and her carrier were to pay the claimant, for the period from January 16, 1952 to March 18, 1953, at the rate of $12 a week.

Be that as it may, though, on October 22, 1954, the board again considered the matter and again concluded that the liability rested equally on both employers (and their carriers), even though the claimant’s earnings after her latest disablement might have exceeded the amount of wages which she had been receiving from Failla. More specifically, the board, after noting that the claimant had received a weekly wage of $40 while with Failla and that for .the period between January 2, 1952 and December 27, 1952 she had earned an average of $38.84 a week and from the latter date to January 31, 1953 an average of $41.02 a week, concluded that the claimant “ suffered a loss of earnings entitling her to a rate of $12.00 per week * * * to be paid one-half by the carrier in each case ”. Matter of Braunstein (307 N. Y. 296, supra) was cited to support the decision. About two and a half years later, in May of 1957, the board handed down a supplemental decision. Not changing the determination earlier made, it purported simply to furnish an additional ground for its earlier disposition; in this decision, the board declared that it “further finds” that in case of successive industrial accidents, each contributing to the claimant’s ultimate disability, ‘ ‘ the compensation payable for such disability shall be based on claimant’s highest average weekly wage in any of the contributing accidents and shall be apportioned in accordance with the contribution of each accident to the disability.”

On appeal, the Appellate Division affirmed these 1954 and 1957 decisions of the board, but on an entirely different theory. It was the court’s view that the award against the appellant was proper, on the ground that the claimant’s wage just before the latest injury amounted not to the $40 a week which she was receiving from Failla at that time, but to such sum plus $17.42, representing the amount which was being paid to her- (while with Failla) as compensation benefits in consequence ’ of her first exposure. Accordingly, concluded the Appellate Division, the award of $12 a week allowed by the board, when added to the claimant’s weekly earnings after her latest disablement — $38.84 for several months and $41.02 for the balance of the period involved — did not exceed the permissible limit fixed by subdivision 6 of section 15 of the Workmen’s Compensation Law.

The statute is clear that, although the compensation to which a claimant is entitled is 66%% of the difference between his average weekly wages at the time of the disability and his actual earnings thereafter in the same employment (Workmen’s Compensation Law, § 15, subd. 3, par. v; subd. 5-a), in no event may such compensation, when added to the decreased earnings, exceed “ the amount of wages ” being received by the employee at the time the injury occurred” (§ 15, subd. 6). This provision of the Compensation Law leaves no doubt that it is the amount of the claimant’s wages which measures the employer’s liability, and Wages,” section 2 explicitly recites, ‘ means the money rate at which the service rendered is recompensed under the contract of hiring in force at the time ” the accident or disablement occurs (Workmen’s Compensation Law, § 2, subd. 9). No matter how liberally we would construe provisions of the Workmen’s Compensation Law, the term “ wages ” may not be stretched to include compensation benefits which were being paid by another employer on account of a prior disability. It follows, therefore, that the award against the appellant Failla, predicated as it was not only upon the wage which the claimant was receiving from him, but also upon the amount of compensation being paid to her by reason of the earlier exposure, may not be sustained. The claimant’s wages at the time of her disablement, while working for Failla, amounted to $40 a week and, consequently, she would be entitled to an award from this appellant of not more than $1.16 a week for the period between January 2 and December 27, 1952 — since for those months her earnings averaged $38.84 a week — and to nothing from December 27, 1952 to March 18, 1953 — since during that time her average earnings came to $41.02 a week.

Nor does the statute empower the Workmen’s Compensation Board to adopt the rule, reflected in its supplemental, decision of May, 1957, that in case of successive industrial accidents, each contributing to claimant’s ultimate disability, “the compensation payable for such disability shall be based on claimant’s highest average weekly wage in any of the contributing accidents ”. Neither our decision in Matter of Messaros v. Goldman and Matter of Braunstein v. General Mar. Repair (307 N. Y. 296, supra) nor anything we there said supports such a proposition. In Messaros and Braunstein, where there were successive accidents, each contributing to the subsequent disability, we simply held that each of the employers was subject to an award based upon the wage, if higher, received by the claimant at the time of “ the latest injury.” (307 N. Y., at p. 300; see, also, Matter of Swirsky v. Brooklyn Ambulance Service, 3 N Y 2d 943.) The injury to which the court there referred was the final and cumulative result to which all of the accidents contributed. Only in such a case could the average weekly wage established for the last accident or disablement be used as the basis for determining the awards for disability as against all the accidents. The situation, however, is entirely different where, as here, the wage paid at the time of the latest disablement was considerably less than the earnings from the employment in which disability had been initially incurred.

To subject a later employer to an award on the basis of a higher salary which the claimant received during an earlier employment flies in the face of another specific statutory prohibition. Subdivision 7 of section 15, while providing that no claimant shall be denied compensation because of a previous disability for which he has been compensated, goes on to recite, “ provided, however, that an employee who is suffering from a previous disability shall not receive compensation for a later injury in excess of the compensation allowed for such injury when considered by itself and not in conjunction with the previeras disability ”. It is clear, therefore, that the claimant’s awards against the appellant Failla must be computed by comparing her earnings after her latest disablement with the average weekly wage received from Failla while working for him. As the provision indicates, a claimant with a prior compensable disability may not receive compensation from a later employer for a later injury in excess of the compensation allowed for that injury when considered by itself.

As we have already noted, the awards against the appellant Failla may not, therefore, stand.

Disposition of Failla’s appeal does not, however, conclude the case. The liability of the first employer Margaret Reuter and her carrier still remains for resolution. The wages which the claimant received while working for Reuter averaged $56.83 a week, and, when she began working for Failla at the rate of $40 a week, Reuter (or her carrier) was required to pay compensation benefits which, as already indicated (supra, p. 61, n. 1), were erroneously paid at the rate of $17.42 a week, predicated upon a 50% arbitrary earning capacity.

Before the claimant began working for Failla, and at the time recurrence of her disablement forced her to quit his employment in November, 1948, Reuter’s liability had been established, apparently on the basis of a 50% earning capacity, resulting in the payments to the claimant at the $17.42 rate. From time to time down to the present awards, liability was found to exist upon the basis of a 50% apportionment. These facts necessarily invite further consideration of the principle of apportionment and suggest the advisability of further study of the question as to the degree of responsibility of the exposure which first caused the disablement. Where an employer has been held responsible for compensation on account of an industrial disability, it is settled law that he will be held accountable for whatever disability may thereafter result. (See, e.g., Matter of Anderson v. Babcock & Wilcox Co., 256 N. Y. 146, 149; Matter of Sherman v. Holland Furnace Co., 3 N Y 2d 860.) The employer may not, of course, be relieved of a liability once fixed and chargeable to him, and it has not been suggested that the first employer, Reuter herein, should be released. However, despite an alleged equivocal oral stipulation, the record before us leaves us in doubt as to whether adequate consideration has been given either to the principle of apportionment or to an equitable and just distribution of liability. Indeed, the evidence adduced all points to the conclusion that the claimant suffered a minimal exposure while in Failla’s employment, and the absence of substantial medical proof that such exposure contributed to her ultimate disability requires that the case be returned to the board.

The order should be reversed, with costs in this court and in the Appellate Division, and the matter remitted to the Workmen’s Compensation Board for further preceedings not inconsistent with this opinion.

Dye, J. (dissenting).

In this appeal by our permission the parties have stipulated that the claimant’s disability was the result of two exposures to an occupational skin disease with equal liability. The initial disability occurred January 27, 1947 while claimant was in the employ of Margaret Reuter as an operator in a beauty salon, at which time her average weekly earnings amounted to $56.83. She had interim awards for temporary total and partial disability benefits and for reduced earnings in the sum of $17.42. She later took employment as a partially disabled person with this appellant, Charles Failla (doing business as Charles Beauty Salon). During this employment she was again exposed to the skin disease and was disabled. She filed a claim for compensation. Her average weekly wages in the second exposure were fixed at $40 per week. The claimant subsequently returned to employment from January 2, 1952 to December 27, 1952. She earned an average of $38.84 per week. From December 27, 1952 to January 31, 1953, she averaged $41.02 per week. Interim awards for temporary, total and partial disability have been made and paid. These awards are not now challenged.

We deal here only with the final awards for reduced earnings covering the period from January 16, 1952 to March 18, 1953 at the mrnfrrnrm rate of $12, amounting to $732 which was charged equally against both employers and each carrier was directed to pay 50% thereof. It is the distribution of the payment of the reduced earnings award that is being disputed. Hartford, the carrier for Failla, the second employer, claims that at most it should be held liable only for the difference between $40 and $38.84 or $1.16 per week and not liable at all for the period when claimant earned $41.02.

The board rejected this contention, ruling that the claimant’s disability was due to both exposures equally and that as a result claimant suffered a loss of earnings entitling her to the minimum allowable rate of $12 per week, one half to be paid by each carrier (Matter of Braunstein v. General Mar. Repair, 307 N. Y. 296).

In this court the appellant carrier contends that the wages were the amounts paid by the last employer. It points to subdivision 9 of section 2 of the Workmen’s Compensation Law, which defines “wages” as “ the money rate at which the service rendered is recompensed under the contract of hiring in force at the time of the accident ” which, in this instance, was established at $40 per week (Workmen’s Compensation Law, § 14). However that may be as a general definition, it must be read in connection with the applicable statutes dealing with permanent partial disabilities affecting loss of earnings. In this instance, as we have said, we deal with a classified permanent partial disablement due to occupational disease attributable equally to two exposures.

Subdivision 6 of section 15 of the Workmen’s Compensation Law provides that in such situations compensation shall be paid in accordance with schedule rates, and then provides that “ In no event shall compensation when combined with decreased earnings or earning capacity exceed the amount of wages which the employee was receiving at the time the injury occurred”.

In Matter of Braunstein v. General Mar. Repair (supra, p. 300), we interpreted “ injury ”, as then used, as referring to the latest injury when there had been more than one injury; that as so read the quoted language means no more than this ‘ ‘ total compensation for disability caused by several compensable accidental injuries, plus earnings after the latest injury, cannot exceed earnings just before the latest injury ”. In that case the hoard had found that the ultimate disability was attributable in part to the ’prior accident, but the earnings of the claimant thereafter and as decreased by the latest accident were nonetheless higher than they were at the time of the earlier accident. Because the prior accident contributed, we deemed the ultimate disability otherwise should be charged proportionately among all the employers. That, however, is not this case, but the principle is equally applicable here since we are concerned with the apportionment of an award for loss of earnings due to permanent partial disability resulting from two separate exposures to an occupational skin disease.

Here, we must remember, the appellant hired this claimant as a physically handicapped person, knowing she could not perform her normal duties as a hairdresser at that time. Because of such disability she was receiving a reduced earning award of $17.42 to supplement her salary of $40 a week so that her earning capacity should not be reduced as a result of this occupational disease.

In my view, including the payment for reduced earnings to fix her average weekly earning capacity at the time of her'last injury is not contrary to the Braunstein decision, nor do I think that subdivision 6 of section 15 is a limitation. The soundness of that approach is demonstrated by the fact that the claimant was hired as a partially disabled person earning $40 per week, but at the same time she was entitled to and did receive reduced earning payments in the amount of $17.42 attributable to her former employment. Hence, her real earnings at the time of her last injury were not $40 as the appellant would have her believe, but actually $57.42. Thus, in the language of the statute the award of $12 per week combined with the decreased earnings or earning capacity does not exceed the amount of wages which the employee was receiving at the time of her last injury. To now hold that claimant’s earnings should be determined by her actual cash wages alone would create an anomalous situation and, as I read it, contrary to the clear meaning of the statute. To limit the award to the wages actually paid by the employer at the time of the last injury, and which is an equally contributing cause of the accident, would be to relieve the last employer of all or most of the money contribution simply because the claimant’s wages were diminished as the result of occupational disease for which, concededly, he is equally liable. Each carrier should pay one half of the minimum allowable rate of $12 per week.

The order of the Appellate Division should be affirmed, with costs.

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

Order reversed, etc.

      . This $17.42 figure seems plainly incorrect. By reason of the statute (Workmen’s Compensation Law, § 15, subd. 3, par. v), the claimant was entitled only to two thirds of the difference between her wages from Reuter, of $56.83, and her wages from Failla, of $40, that is, $11.22 a week (or, by virtue of subdivision 6, to a minimum of $12), instead of the $17.42 awarded by the board and referred to by the Appellate Division to support its decision. Although we are told that this payment was made to supplement the $40 wage paid, by Failla5 it is quite clear that it was paid as a result of the 1947 exposure on the basis of an estimated 50% earning capacity.

      . The Workmen’s Compensation Law is silent on the subject of the liability of the parties in eases of successive industrial accidents or disablements, and it is, perhaps, not amiss to observe that, as a result, doubt and perplexity have attended decision in many cases involving the apportionment of responsibility among such employers and carriers as to the proration of the compensation to be paid by them. Awareness of the problem may well prompt the Legislature to study it and, if found feasible, to enact appropriate legislation.


author: Van Voobhis, J. Desmond, J. (dissenting).

text:
    The People of the State of New York, Respondent, v. Eddie Marks, Appellant.
    Argued January 6, 1959;
    decided May 21, 1959.

      John J. LofUn, Jr., and Florence M. Kelley for appellant.
    I. The trial court’s refusal to admit into evidence the aided card and the statements made by Heavy Pickens to Officer Muldoon a few minutes after the shooting was in error. (People v. Del Vermo, 192 N. Y. 470; Swensson v. New York, Albany Desp. Co., 309 N. Y. 497; People v. Fernandes, 301 N. Y. 302, 340 U. S. 914; People v. Barbato, 254 N. Y. 170; People v. Doran, 246 N. Y. 409; People v. Bartelini, 285 N. Y. 433; People v. Ludkowits, 266 N. Y. 233; People v. Keelin, 136 Cal. App. 2d 860.) II. The summation of the Assistant District Attorney was improper, prejudicial and deprived defendant of a fair trial. (People v. Lovello, 1 N Y 2d 436; People v. Carborano, 301 N. Y. .39; People v. Tassiello, 300 N. Y. 425; People v. Mleczko, 298 N. Y. 153.)

      Frank 8. Hogan, District Attorney (William Rand, Jr., and Richard G. Denser of counsel), for respondent.
    I. Defendant’s guilt was proved beyond a reasonable doubt. II. The trial court correctly refused to admit evidence of statements made by the deceased. (People v. Curtis, 225 N. Y. 519; People v. Del Vermo, 192 N. Y. 470; Martin v. New York, N. H. & H. R. R. Co., 103 N. Y. 626; People v. Davis, 56 N. Y. 95; Ingersoll v. Liberty Bank of Buffalo, 278 N. Y. 1; People v. Sprague, 217 N. Y. 373; Greener v. General Elec. Co., 209 N. Y. 135; Handel v. New York R. T. Corp., 252 App. Div. 142, 277 N. Y. 548; People v. Hall, 260 App. Div. 421; Hill v. Erie R. R. Co., 221 App. Div. 518; People v. Chapman, 191 App. Div. 660.) III. No reversible error occurred during the prosecutor’s summation. (People v. Minsky, 227 N. Y. 94; People v. Levine, 297 N. Y. 144; People v. Pindar, 210 N. Y. 191; People v. Carborano, 301 N. Y. 39; People v. Lovello, 1 N Y 2d 436; People v. Tassiello, 300 N. Y. 425; People v. Mleczko, 298 N. Y. 153; Blake v. People, 73 N. Y. 586; People v. Donaldson, 295 N. Y. 158; People v. Slover, 232 N. Y. 264; People v. Hartigan, 210 N. Y. 144; People v. Shamos, 294 N. Y. 948.)
   Van Voobhis, J.

Appellant has been convicted of murder in the second degree for having shot and killed one Pickens on June 16,1955, in the basement of 254-256 West 146th Street, New York City. The Appellate Division has affirmed. The verdict of the jury is supported by evidence. Appellant advances two points (1) that the trial court erroneously excluded evidence of a declaration by the victim exculpating appellant, and (2) that the prosecutor made prejudicial statements in his summary to the jury. These points are discussed in the order named.

Patrolman Muldoon testified that at 10:30 a.m. on the day of the homicide he was directed by radio to drive his patrol car immediately to 260 West 146th Street, where the wounded man had been seen by a person who notified the police. On his way to that address, Muldoon observed that a crowd had gathered around 2742 Eighth Avenue, where he stopped his ear and found Pickens lying in the vestibule. He was suffering from a gunshot wound in his left chest which was bleeding. Muldoon had a conversation with Pickens and then took him to the Harlem Hospital where they arrived at 10:40 a.m. There is evidence that the shooting occurred at 10:25 a.m. which was five minutes before the notification of Muldoon, who testified that he talked to Pickens within a minute afterward. According to this evidence, Pickens’ statement to Officer Muldoon was made six minutes after he had been shot. Muldoon testified that he asked Pickens by whom he had been shot, and wrote the answer on a card which became part of the records of the Police Department. He was interrogated upon the witness stand by defense counsel: “ Q. Did you write on that aided card that the deceased was shot by one Edward Small? ” An objection to this question was sustained. The officer testified that Pickens gave no indication that he was in fear of death at the time. Defense counsel offered the card in evidence, which was deemed marked for identification. This offer was made as a business record of the Police Department under section 374-a of the Civil Practice Act, but objections to the offer and to oral testimony of Pickens’ declaration were sustained. No question has been raised concerning the form of the proof and the ruling of the court was based on the inadmissibility of any statement by Pickens under these circumstances. It is assumed that Pickens told Officer Muldoon that he had been shot by Edward Small.

Appellant’s first point is that this declaration by the deceased apparently exculpating defendant should have been received in evidence as a spontaneous declaration under People v. Del Vermo (192 N. Y. 470). There the defendant was charged with having fatally stabbed one Tony Page in the abdomen. According to the testimony of the principal witness, they were walking on Dominick Street in Borne, New York, three abreast, Tony Page being between defendant and the witness. Defendant told Tony Page, according to this witness, that he had had connection with Page’s wife and was going to have connection again. ‘ ‘ If you want to come and see, ’ ’ said the defendant, “ I will go just right now.” Tony Page responded with an epithet at which the defendant laughed, they walked together a further distance of about two blocks, when the witness saw defendant run and exclaimed: ‘ What is the matter with that fellow? ” Page walked forward four or five steps and dropped to the sidewalk. The witness inquired, “ What is the matter? ” and Page answered, “ Del Yermo stabbed me with a knife.” The witness helped him to his home, where Page’s wife met him, and there Page repeated in response to her inquiry: “Del Yermo stabbed me with a knife ”, stating that he had been killed. Page died as the result of the wound within several hours. The witness had not seen him stabbed. At the trial the first declaration made to the witness immediately after the stabbing, when Page dropped to the sidewalk, was admitted into evidence as a spontaneous declaration. The later declaration made in the presence of his wife in the house, accompanied by the exclamation “Oh! my poor children! I am going to die. What are my children going to do after this? ” was admitted as a dying declaration. Later, statements to others were admitted as dying declarations.

It is not contended that appellant’s exculpation by the victim was admissible as a dying declaration. Officer Muldoon testified that Pickens did not indicate that he thought that he was going to die. The holding in the Del Vermo case (supra) about spontaneous declarations is addressed to our attention.

Professor Wigmore has analyzed this subject with his usual clarity, distinguishing spontaneous declarations from the doctrine of res gestae. The latter refers to verbal acts, forming part of the transaction itself. A spontaneous declaration, upon the other hand, is a true exception to the hearsay rule (Wig-more, Evidence, § 1745). It is a narrative of a past transaction, although usually of a transaction occurring immediately before. The basis of this exception to the hearsay rule is that the spontaneity of declarations of this kind gives more assurance of veracity than is true of the usual hearsay declaration. Wigmore says (§ 1747, subd. [I]): “This general principle is based on the experience that, under certain circumstances of physical shock, a stress of nervous excitement may be produced which stills the reflective faculties and removes their control * # *. Since this utterance is made under the immediate and uncontrolled domination of the senses, and during the brief period when considerations of self-interest could not have been brought fully to bear by reasoned reflection, the utterance may be taken as particularly trustworthy (or, at least, as lacking the usual grounds of untrustworthiness), and thus as expressing the real tenor of the speaker’s belief as to the facts just observed by him,- and may therefore be received as testimony to those facts. The ordinary situation presenting these conditions is an affray or a railroad accident. But the principle itself is a broad one.”

It was tersely stated by Bleckley, C. J., in Travelers Ins. Co. v. Sheppard (85 Ga. 751, 775-776) that “What the law altogether distrusts is not after-speech but after-thought * * * That [the declarations] shall be or appear to be spontaneous is indispensable, and it is for this reason alone that they are required to be speedy.”

Wigmore says that there can be no definite or fixed limit of time within which the declaration shall have been made, that each case must depend upon its own circumstances (§ 1750), adding that the utterance must have been before there has been time to contrive and misrepresent, i.e., while the nervous excitement may be supposed still to dominate and the reflective powers to be yet in abeyance. In this context, it may be appropriate to cite the often repeated language of Judge Vann, speaking for the unanimous court in People v. Gilbert (199 N. Y. 10, 24) concerning what constitutes premeditation and deliberation: ‘1 While the time for reflection is not measured in minutes or seconds it is measured by facts. The time must be long enough" to make a choice, as the result of thought and reflection, and to act upon the choice thus made. It is obviously impossible to measure this period by the ordinary method of measuring time and, hence, it is necessary to measure it by what must be done ”. Many cases are cited by Wigmore, in some of which the time interval is shorter and in others longer' than in the case at bar. The passage which has been quoted from Wigmore is important not only on account of his authority and clarity, but also for the reason that it was followed in People v. Del Vermo (supra). Wigmore’s distinction is recognized in Del Vermo between spontaneous declarations and the narrower meaning of res gestae, and the first declaration by Page but not the later ones was held to have been properly admitted on account of its spontaneity, immediately after Page fell to the sidewalk.

In People v. Hall (260 App. Div. 421), decided 32 years after Del Vermo, the Third Department held that statements by a decedent in a homicide case were erroneously admitted. The deceased there had been shot five times in the head and neck as a result of which he died a few hours later. The shooting occurred at a gasoline station, after which the victim made his way to his home on the opposite side of the highway about 100 paces away. There he attracted the attention of his wife and son, and staggered in badly wounded when the front door was unlocked. His wife testified that she and their son helped him to a chair and asked him what had happened, after which he said that he had been shot by the man who had been hanging around the gasoline station for several nights.

This question has been presented in negligence cases, where declarations have been excluded in Greener v. General Elec. Co. (209 N. Y. 135); Martin v. New York, N. H. & H. R. R. Co. (103 N. Y. 626); Waldele v. New York Cent. & H. R. R. R. Co. (95 N. Y. 274); Schoenfeld v. Long Is. R. R. Co. (277 App. Div. 780); Handel v. New York R. T. Corp. (252 App. Div. 142, affd. 277 N. Y. 548). A contemporaneous declaration was admitted in Swensson v. New York, Albany Desp. Co. (309 N. Y. 497).

The Court of General Sessions gave this reason for excluding the declaration by Pickens in the instant case: “ As I understand the theory, a declaration of a decedent, even if made in response to an inquiry, would be admissible, provided the element of spontaneity was present; that the statement is made so impulsively as to exclude the element of reflected fabrication. On the present state of the record, however, there has necessarily been such a lapse of time as to permit, on the part of the now deceased, a period within which he had an opportunity to reflect and to contrive, and this necessarily destroys the basic ground upon which such a statement might be conceivably introduced under the theory of the Del Yermo case, and I want the record clearly to show the grounds for the Court’s rulings with respect to these alleged statements by the deceased.”

According to appellant, Pickens was still subject to the nervous excitement and physical shock of having been shot, which is claimed to have stilled his reflective faculties and removed their control. In support of this view is evidence that Pickens was interrogated by Officer Muldoon six minutes after he had been shot. Assuming the time interval to have been as brief as this, a number of events occurred before decedent’s conversation with Officer Muldoon. After having been shot in the basement of 254^256 West 146th Street, he was seen in the hallway of the adjacent building, 260 West 146th Street; to have reached there he must have climbed down a 3-foot ledge, mounted a flight of 15 steps, and walked, in all, about 100 feet. In the hallway, he spoke to a woman, but what he said was stricken from the record on motion of counsel for defendant. He was later seen lying in the vestibule of 2742 Eighth Avenue, where he was interrogated by Officer Muldoon. To have arrived .at that location, he must have walked down the steps at 260 West 146th Street, about 45 feet westward on 146th Street, and then gone 50 feet southward on Eighth Avenue. There he was able to talk to the officer.

The People argue that his statement to Officer Muldoon implicating another man than defendant was the product of reflection. The decedent had reason to fabricate a story. He was a narcotic addict recently released from prison. Several days before the shooting he had robbed defendant of several packages of heroin. It is quite possible that in view of defendant’s pugnacity, his possession of a gun and his well-merited grievance, Pickens may have feared future violence at defendant’s hands. Pickens was not then anticipating death as a result of his wounds, and may have been wary of what defendant might do to him afterward if he were publicly to have charged him with armed assault.

Appellant’s brief appears to concede that the circumstances under which this declaration was made are open to different interpretations concerning its spontaneity. It is urged that the declaration should have been received in evidence in any event, and the question of its spontaneity submitted to the jury like the voluntariness of a confession under section 395 of the Code of Criminal Procedure (People v. Kennedy, 159 N. Y. 346; People v. Cassidy, 133 N. Y. 612; People v. Fernandes, 301 N. Y. 302). A decision is cited in the intermediate appellate court in California (People v. Keelin, 136 Cal. App. 2d 860, Ann. 56 A. L. R. 2d 372) where the spontaneity of a declaration was held to have been correctly submitted to a jury, under instructions that they were to disregard it if found not to have been spontaneous.

That California decision is contrary to the practice in New York State, where the established rule is that it is for the court and not the jury to decide questions of fact preliminary to determining the admissibility of evidence (Harris v. Wilson, 7 Wend. 57; Jones v. Hurlburt, 39 Barb. 403, 410; Roberge v. Winne, 144 N. Y. 709, 715; Richardson, Evidence, § 195). In Roberge v. Winne, this court was confronted with conflicting testimony concerning whether a document offered in evidence was proper to be received. The opinion of the General Term is printed in the Court of Appeals Reports, where the affirmance was without majority opinion, stating: “It is apparent, therefore, that before the paper offered could have been admitted the court had to decide a preliminary question of fact whether the plaintiff had such knowledge of the contents of the unsigned paper as to make it binding upon him as evidence, and in deciding this question against the defendant we cannot say, as matter of law, that the learned judge was in error.”

In Jones v. Hurlburt (supra, pp. 410-411), where similar facts were involved to those in Harris v. Wilson (7 Wend. 57, supra), the decision in the latter case was thus summarized: “ In Harris v. Wilson, (supra,) it was held that the evidence received by a judge on the trial of a cause, as preliminary to the introduction of other evidence, is not to be submitted to the jury; that is the province of the judge, and not of the jury, to pass upon its sufficiency. Accordingly, where proof of the admissions of an alleged partner was offered, it was held the province of the judge, and not of the jury, to pass upon the fact whether he was such partner or not.” (Italics from original.)

This New York rule is not only well grounded in practice but is also sound in principle. The admissibility of evidence may depend upon complicated, collateral fact issues, which would be confusing in jury trials. If, in addition to the questions of fact which are directly involved, any number of collateral issues must be tried in order to determine the admissibility of evidence upon the principal issue, it would obstruct rather than facilitate the administration of justice.

Submission to juries of the voluntariness of confessions by defendants in criminal cases is an exception to this general rule. The reason for making the exception is apparent. In such instances the confession or admission relates to the subject matter of the criminal action being tried, and the only collateral question is whether it was coerced by force or fear. That, in itself, has a bearing on the guilt or innocence of a defendant. An alleged confession or admission represents an endeavor to prove the charge at issue out of a defendant’s mouth. It is advanced to prove recognition by the person charged with the crime that he himself did all or some of the things which constitute the crime charged. The voluntariness of such an admission or confession by a defendant is so intimately related to the merits of the controversy that it has become natural to submit to juries, along with the other issues on trial, whether defendants actually did say or write the damaging material which is ascribed to them. That is different from submitting to juries collateral issues of fact on which depend the admissibility of declarations by third parties.

In the case of dying declarations, it is held that “ Whether the declarations were made in apprehension of death and after the declarant had lost all hope of recovery is to be determined by the judge ” (Follett, J., People v. Kraft, 91 Hun 474, 475, affd. 148 N. Y. 631). “ The trial judge must determine, not only from the conversation of the declarant but from the surrounding circumstances, that there is clear proof showing the certainty of speedy death and that the declarant had no hope of recovery. (People v. Ludkowits, 266 N. Y. 233, 239.) ” (People v. Smith, 245 App. Div. 69, 71.) In Ludkowits this court said (266 N. Y. 239): “Whether the preliminary proof advanced is sufficient to admit the receipt in evidence of a dying declaration presents in each case a question which must be determined by the trial judge.” Kraft and Del Vermo (supra) are cited as authority for this conclusion, along with People v. Smith (104 N. Y. 491), in which it was held on the principal point of law in the case that it is the function of the court, and not of the jury, to rule upon preliminary questions of fact affécting the admissibility of dying declarations.

Although we are not here dealing with a dying declaration, the same principle applies that it is in the province of the court and not of the jury (as contended by appellant) to decide preliminary questions of fact on which the admissibility of the declaration depends. That applies in the case of alleged spontaneous declarations as it does to dying declarations. The law would be inconsistent if in the one kind of declaration preliminary fact questions were to be decided by the judge and in the other by the jury. On the record in this case it cannot be held that the Trial Judge erred as matter of law in finding the preliminary fact to be that the declaration of this homicidal victim lacked spontaneity, and that sufficient time had elapsed under the circumstances so that it could have been a reflective fabrication. The Trial Judge found that Pickens had opportunity to reflect and to contrive, which destroys the foundation upon which such declaration could be introduced under the Bel Vermo decision.

It is argued for respondent that the evidence establishes as matter of law that Pickens had opportunity to reflect and to contrive before making this declaration, so that no preliminary question of fact was presented for the trial court to decide in ruling on the People’s objection to the introduction of this declaration. We do not need to decide on that aspect, inasmuch as even if a preliminary question of fact was presented, it was resolved against appellant by the trial court.

The second point raised by appellant concerns prejudicial statements alleged to have been made by the prosecuting attorney to the jury in his summation. It is said that he attempted to bolster the credibility of witnesses for the prosecution with the prestige of his office, character and personality contrary to the rulings in People v. Lovello (1 NY 2d 436) and similar decisions. Although conduct of the kind condemned in the Lovello case is to be avoided, as the Appellate Division said in affirming this conviction, the circumstances here are different. These remarks to the jury must be considered in their relationship to the summation by the attorney for the defendant which had just been finished. The People’s principal witness Joan Scott, and other witnesses for the prosecution, were dope addicts. Defense counsel had told the jury in no uncertain terms that these witnesses had been suborned by the District Attorney’s office acting in conjunction with the police, by coercing them into giving false testimony implicating the defendant on the threat that drugs would be withheld from them, or furnished to them, according to whether they testified as the People wanted. The record contains no support for this serious charge. The reputations of the Assistant District Attorney in charge of the case, of the District Attorney’s office and of the police were thus injected into the case by the defendant’s attorney, who had told the jury “ You have to be in the District Attorney’s office when the District Attorney is questioning these people ”, referring to the witnesses for the prosecution, in order to know why they testified as they did. Having made these gratuitous attacks upon the law enforcement authorities, appellant’s counsel is not in position to complain that the prosecuting officer said that his reputation and the reputation of the police were involved in the case. This is clearly reflected in the People’s summation at pages 839 through 841 of the stenographic minutes. They were involved for the reason that the attorney for the defendant had put them into the case. What the Assistant District Attorney said in reply may not have been letter perfect, but under these circumstances it was not prejudicial. Nor did the trial court lend weight to the statement, as was done in the Lovello case. The motion for mistrial on this ground was properly denied.

This motion for mistrial was made before the Assistant District Attorney’s main attempt to bolster, as it is argued, the testimony of the witness Joan Scott by vouching for her credibility. No motion for mistrial was made after those statements in support of Joan Scott were made to the jury, except a motion at the end of the trial based upon an altogether different ground. In the absence of an appropriate motion of this nature, the point is not available in this court (People v. Levine, 297 N. Y. 144, 148; People v. Pindar, 210 N. Y. 191, 196-197).

The judgment of conviction should be affirmed.

Desmond, J. (dissenting).

Nothing could be more thoroughly settled in this and other States than the gross impropriety of a prosecutor’s “ making himself an unsworn witness and supporting his case by his own veracity and position ” (People v. Lovello, 1 N Y 2d 436; People v. Tassiello, 300 N. Y. 425; Berger v. United States, 295 U. S. 78, 88; People v. De Martine, 205 App. Div. 80, 84; People v. O’Regan, 221 App. Div. 331, 338; People v. Reimann, 266 App. Div. 505, 507; People v. Swanson, 278 App. Div. 846; People v. Burley, 282 App. Div. 408, 411; People v. Black, 317 Ill. 603; People v. Hoffman, 399 Ill. 57; People v. Anderson, 406 Ill. 585; People v. Provo, 409 Ill. 63; Balls v. State, 137 Neb. 835; State v. Case, 49 Wn. [2d] 66; and see decisions from practically all the States in 75 A. L. R. 48-59, and 50 A. L. R. 2d 754-868).

Sixty years ago in People v. Fielding (158 N. Y. 542, 547) we warned that Language which might be permitted to counsel in summing up a civil action cannot with propriety be used by a public prosecutor, who is a quasi-judicial officer, representing the People óf the state, and presumed to act impartially in the interest only of justice. ’ ’ In Fielding, in 1899, it was noted (p. 548) that “ the admonition of the court has not proved sufficient to prevent improper and dangerous appeals ” to jurors, so that reversals had become necessary. Sixty years later, I am unwilling merely to add one more reproof or rebuke. In this present case, where the prosecutor returned again and again to his improprieties despite vehement objections from the defense, what possible remedy is there but a reversal? To paraphrase a classic speech of Cicero: ‘ ‘ How long will you abuse the patience of this court? ”

The People argue that the point was not saved by motions for a mistrial. Even assuming that such a motion is absolutely essential (People v. Lovello, 1 N Y 2d 436, supra, leaves this doubtful) we find at least one such motion in this record. On© should be enough.

The argument that this wholly improper language by the prosecutor was justified as an answer to the defense summation is hardly worthy of notice. Furthermore, the prosecutor had made no objection of any kind to any remarks by the defense counsel.

The judgment should be reversed and a new trial ordered.

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

Judgment affirmed.


author: Froessel, J.

text:
    Marilyn B. Haskell, an Infant, by Celia Alberts, Her Guardian ad Litem, Respondent, v. Jerome J. Haskell, Appellant.
    Argued April 7, 1959;
    decided May 28, 1959.

      I. Stanley Stein for appellant.
    I. It was beyond the jurisdiction of Special Term to make the order appealed from, without service of the show cause order and the papers upon which it was based, upon the husband. II. Frederick E. M. Ballon was not the “ other person ”, specified in the statute, authorized to be served with notice. (Matter of Stradar v. Stern Bros., 184 App. Div. 700; Rosenthal v. Rosenthal, 201 App. Div. 27; Karpf v. Karpf, 260 App. Div. 701; Keller v. Keller, 100 App. Div. 325; Wulff v. Wulff, 74 Misc. 213, 151 App. Div. 22; Thayer v. Thayer, 145 App. Div. 268; Griffin v. Griffin, 327 U. S. 220; Massimino v. Massimino, 5 Misc 2d 1041.) 111. There was no default on the part of appellant.

      Irving 1. Erdheim for respondent.
    1. Due notice requirements of section 1171-b of the Civil Practice Act are satisfied, if husband is afforded ample opportunity to oppose application seeking judgment for arrears of support, by receipt of timely notification thereof from husband’s purported former attorney. (Massimino v. Massimino, 5 Misc 2d 1041; Rosenthal v. Rosenthal, 201 App. Div. 27; Karpf v. Karpf, 260 App. Div. 701; Keller v. Keller, 100 App. Div. 325; Wulff v. Wulff, 74 Misc. 213, 151 App. Div. 22.) II. A default order is not appealable as a matter of law. (La Londe v. La Londe, 274 App. Div. 970; People v. Robbins, 277 App. Div. 1087.)
   Froessel, J.

Several years after the entry of a judgment in plaintiff’s favor in an annulment action awarding the sum of $30 per week for the support of the son of the parties, she procured an order directing the entry of a judgment for arrears. The order to show cause on the application for such latter judgment provided for service upon the defendant, a resident of Connecticut, or his attorney.

Service was effected on the defendant’s attorney of record in the annulment action. Said attorney did not move under the provisions of section 237-a of the Civil Practice Act but merely submitted an affidavit “ in partial opposition ”, urging that he no longer represented defendant, that he had no authority to appear on defendant’s behalf, and asked to “ be permitted to return the aforesaid moving papers and be relieved of all further responsibility in connection therewith ”. He thereupon communicated with defendant by mail advising him of the order to show cause, its purpose and the return day, and suggested the latter contact the attorney’s office “ by telephone ”.

After an adverse decision and before the entry of an order thereon, said attorney moved for reargument. While that application was under consideration, another attorney, who had represented defendant just a few months previously in another matter relating to the custody of the child of the parties, appeared in the Justice’s chambers in relation to the motion for reargument under the guise of being from the first attorney’s office.

Under all the facts and circumstances of this cáse, Special Term was authorized to find that defendant was duly represented by counsel. For present purposes, an application under section 1171-b of the Civil Practice Act is treated as a motion in an action (see Karlin v. Karlin, 280 N. Y. 32, 36; Fox v. Fox, 263 N. Y. 68, 70; Lund v. Lund, 196 Misc. 136, 137-138), so that no service of new process was necessary for the purpose of acquiring jurisdiction over defendant’s person (Durlacher v. Durlacher, 173 Misc. 329, 331-333; see Karpf v. Karpf, 260 App. Div. 701, 703-704; see, also, Ohlquist v. Nordstrom, 143 Misc. 502, 503-504, affd. 238 App. Div. 766, affd. 262 N. Y. 696; Griffin v. Griffin, 327 U. S. 220).

The judgment should be affirmed, with costs.

Chief Judge Conway and Judges Desmond, Dye, Fuld, Van Voorhis and Burke concur; Judges Fuld and Van Voorhis, in concurring, would grant leave to defendant, as did the Appellate Division, to apply at Special Term to move for leave to interpose any defense thereto that he may have upon the merits.

Judgment affirmed.


author: Van Voorhis, J.

text:
    The People of the State of New York ex rel. Andrew Janosko, Appellant, against Edward M. Fay, as Warden of Green Haven Prison, Respondent.
    Argued March 6, 1959;
    decided May 28, 1959.

      Lloyd L. Rosenthal for appellant.
    I. Convictions No. 2 and No. 3 were but one conviction under sections 1941 and 1942 of the Penal Law. (People ex rel. Prosser v. Martin, 208 Misc. 875, 281 App. Div. 1008, 306 N. Y. 710; People ex rel. Carollo v. Brophy, 294 N. Y. 540; Krohe v. Goldman, 167 Misc. 930.) II. Special Term erred in failing to construe the pertinent penal statutes strictly and in favor of the individual’s (Janosko’s) freedom. (People ex rel. Carollo v. Brophy, 294 N. Y. 540; People ex rel. Newman v. Foster, 297 N. Y. 27; Schuster v. City of New York, 5 N Y 2d 75; People v. Olah, 300 N. Y. 96; People v. Shaw, 1 N Y 2d 30.)

      Louis J. Lefkowits, Attorney-General (Paxton Blair, Norman M. Beck and Jerome Lefkowits of counsel), for respondent.
    To bring the last sentence of section 1942 of the Penal Law into operation, it is not enough to show that an order of consolidation might have been made if applied for; and when the trial court, sitting in another State, did not go beyond ordering the two indictments to be tried simultaneously, and after convictions imposed sentences to run consecutively, the lower courts’ conduct in refusing to treat the two convictions as one was indisputably correct. (People ex rel. Maurer v. Jackson, 2 N Y 2d 259; Chudyk v. 5th Ave. Coach Line, 6 A D 2d 1003; Vidal v. Sheffield Farms Co., 208 Misc. 438; People ex rel. Ploiser v. Foster, 193 Misc. 596, 274 App. Div. 1086; People v. Wilson, 151 N. Y. 403; Hawker v. People, 75 N. Y. 487; Commonwealth v. Sutton, 171 Pa. Super. Ct. 105.)
   Van Voorhis, J.

This is an appeal from the dismissal of relator’s writ of habeas corpus. On May 27, 1953 he was convicted, by confession, of grand larceny, second degree, and was sentenced in the Court of General Sessions, New York County, as a fourth felony offender, to an indefinite term of 15 years to life.

The prior convictions, all in Allegheny County, Pennsylvania, are as follows:

(1) Conviction No. 1, on September 11, 1924, for robbery;

(2) Conviction No. 2, on October 24, 1930, under Indictment No. 9 for robbery ;

(3) Conviction No. 3, on October 24, 1930, under Indictment No. 10 for attempted robbery.

This matter concerns Convictions Nos. 2 and 3 of October 24, 1930, for robbery and attempted robbery. Relator was charged with these two crimes in two separate indictments, which were found on the same day by the same Grand Jury. The indictments were tried simultaneously before the same jury and same Judge. Relator was found guilty of both crimes and sentences were imposed to be served consecutively.

Relator claims that he was improperly sentenced as a fourth felony offender upon his subsequent conviction in 1953 of grand larceny in New York. His petition alleges that “ Both Section 1941 of the Penal Law (punishment for second or third offenders) and Section 1942 of the Penal Law (punishment for fourth offenders), under which the said Court of General Sessions sentenced me, provide that for the purposes of said sections, conviction of two or more crimes, either charged in separate counts of one indictment or in two or more indictments consolidated for trial, shall be deemed to be only one conviction”. (Italics from original.)

The italicized words in the petition are correctly taken from section 1942 of the Penal Law, which provides: “ For purposes of this section, conviction of two or more crimes charged in separate counts of one indictment or information, or in two or more indictments or informations consolidated for trial, shall be deemed to be only one conviction.”

The opinion of the Dutchess County Trial and Special Term says:

“ The consolidation for trial to which Penal Law Section 1942 refers, is that permitted by C.C.P. Section 279 where provision is made for the charge of crimes of same or similar character in separate counts of one indictment and there is then added the provision ‘ and if two or more indictments or informations are found in such cases, the Court may order them to be consolidated. ’
“It is to be observed that neither section makes any reference at all to a joint trial of separate indictments nor is there anything anywhere else in the criminal code about joint trials of separate indictments.
“ In the circumstances, the writ must be denied and the relator remanded to the custody of the respondent.”

Appellant contends that for the purposes of section 1942 of the Penal Law these two indictments of related crimes were consolidated for trial. The point here is not whether these are separate crimes, nor whether they are separately punishable, but the issue concerns the bearing which they have on how relator is to be dealt with as a recidivist. It relates only to the philosophy of the Baumes Laws (Penal Law, §§ 1941-1943). The words on which petitioner relies were added to section 1942 of the Penal Law when section 279 of the Code of Criminal Procedure was adopted in its present form, permitting charges of the same or similar character to be joined or consolidated in one indictment (L. 1936, eh. 328). In order to be one crime under section 1942 for the purpose of determining whether a convict is a fourth felony offender, the criminal acts joined or consolidated in one indictment do not need to constitute but one transaction, for separate crimes may be united and count as one crime in dealing with the convict as a recidivist. These two crimes of robbery and attempted robbery of different persons occurred in Pennsylvania on the same day. The bearing which they have on how he should be dealt with as a repeater is not unlike what would occur if a robber were to hold up a bus and compel 10 different passengers to deliver their purses at the point of a gun. These would constitute 10 different felonies, but all would be but one crime in determining whether he was a fourth offender under section 1942 if the charges were joined in the same indictment or contained in separate indictments that were consolidated for trial. In measuring the special debt to society imposed on such a man by section 1942, it would not matter whether he held up one passenger with a revolver or several dozen on the same occasion, under those circumstances.

The public policy expressed by section 1942 has not been created by the courts. This public policy has been established by the Legislature by statutory enactment in 1936. It is irrelevant to this policy whether a convict has been subject to several indictments which could have been consolidated, or whether they were formally merged into one, provided that they have been tried together. A man who has perpetrated the same crimes at the same times and places under the same circumstances is not a whit better or worse or different from what he would have been if the indictments had been formally consolidated instead of having been merely tried together.

In interpreting what this statute means, it is necessary to envision what the Legislature was endeavoring to accomplish, and to construe the section in the light of its probable objects and purposes. There is, of course, a formal difference between consolidation and joint trial. Where indictments are consolidated, as in the consolidation of civil actions, they become a single criminal action from and after the order of consolidation. In event of joint trial of civil actions, separate judgments are entered and separate bills of costs are allowed. Upon the other hand, if civil actions have been consolidated, they terminate in one judgment with one bill of costs. By analogy, the consolidation of criminal actions makes them thereafter one. Not only are these subtle differences unrelated to any policy which is likely to have impelled the Legislature to enact this amendment to section 1942 of the Penal Law, but the language of section 1942 itself indicates that consolidation ” is not there used as a term of art. The language of this section speaks of instances where indictments are “ consolidated for trial ” (italics supplied). If the word “ consolidated ” were used in this section in its formal legal sense, there would be no such separate thing as consolidation for trial. Consolidation would be for all purposes. It would merge distinct indictments into a single criminal action for trial and on to the bitter end, unless, as did not happen here, separate trials were thereafter to be ordered as authorized by section 279 of the Code of Criminal Procedure. Unless the draftsman of this amendment to section 1942 had in mind that for this purpose a single conviction would result from the trial of separate crimes simultaneously, whether by consolidation or joint trial, the words “ for trial ” would add nothing except to emphasize that the different counts must be tried together, and that being tried together is the essential thing. The animating thought is that if the criminal charges are enough alike in place, in time and in nature to be determined at one trial, and have been tried together, they should only count once in testing whether a convict is a second, third or fourth felony offender.

There is no section of the Code of Criminal Procedure which expressly covers “ joint trial ”, and the difference between that and consolidation would seem to amount to less in criminal law than in civil law where the parties are more concerned with questions of where to lay the venue, trial by judge or jury, the right to open and close or the taxation of costs. The appellant’s counsel correctly states that the facts rather than semantics should control, and that if multiple criminal charges have been decided at one trial—in New York State or elsewhere — such a trial should be deemed a consolidated trial, resulting in but one conviction for the purposes of the Baumes Laws. These crimes which were tried together in Pennsylvania have sufficient characteristics in common so as to have permitted consolidation under section 279 of the New York State Code of Criminal Procedure.

We are not informed concerning what the practice may be in Pennsylvania with respect to consolidation or joint trial of criminal actions, but the essence of consolidation is the uniting of multiple claims or charges which are sufficiently similar to justify the avoidance of multiplicity or circuity of legal action. What took place in Pennsylvania in the instant case would, if it had occurred in New York, be equivalent to consolidation “ for trial ”. Even a vicious criminal should be punished as a fourth offender only if the case is clearly encompassed by section 1942 (People ex rel. Newman v. Foster, 297 N. Y. 27, 31). The scope of this section is not to be extended ‘ ‘ by judicial interpretation ”, and must be clearly within the expressed legislative intent (People ex rel. Carollo v. Brophy, 294 N. Y. 540, 544).

We consider the legislative intent in section 1942 to have been that if several crimes or a series of crimes are sufficiently alike in time, place and nature to warrant their being united for trial, and if they have been tried together, the purpose of the Baumes Laws will be served by treating the conviction as a single conviction, notwithstanding that the charges may arise from different transactions or the sentences be directed to be served consecutively.

The order appealed from should be reversed and the writ of habeas corpus sustained to the extent of remanding relator to the Court of General Sessions in the City and County of New York for resentencing as a third felony offender on his conviction of grand larceny in the second degree on May 27, 1953.

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

Order reversed, etc.