author: Wachtler, J. Meyer, J.

text:
    In the Matter of the Estate of Georges Kleefeld, Deceased. Denise Stork, Appellant; Joseph De Mul et al., Respondents.
    Argued January 12, 1982;
    decided February 25, 1982

      POINTS OF COUNSEL

      Cameron K. Wehringer and Claude Henry Kleefield for appellant.
    I. Innuendo does not substitute in law for hard facts and the law requires proof of a lost will’s provisions. (Kahn v Hoes, 14 Misc 63; Matter of Utegg, 91 Misc 2d 21; Matter of Graeber, 53 Misc 2d 640; Matter of Kennedy, 30 Misc 1; Matter of Yanover, 16 Misc 2d 128; Matter of Musacchio, 146 Misc 626; Matter of Humiston, 128 Misc 71; Matter of Dalton, 185 Misc 785.) II. Nothing explains what happened to the original will and that alone prohibits acceptance of the xerox copy of a conformed copy of a “will”. (Lauritano v American Fid. Fire Ins. Co., 2 Misc 2d 930, 3 AD2d 564, 4 NY2d 1028; Constantinides v Manhattan Tr. Co., 264 App Div 147; Matter of Monachino v New York State Liq. Auth., 12 Misc 2d 666, 6 AD2d 378; Matter of

      Phinn v Kross, 8 AD2d 132; Matter of Staiger, 243 NY 468; Matter of Luby, 144 Misc 900; Matter of Fox, 9 NY2d 400; Matter of Nichols, 40 Hun 387; Matter of Hughson, 97 Misc 2d 427.) III. Innuendos and implications, if valid for a will proponent, are equally valid for a will contestant.

      Donald H. Zuckerman for Joseph De Mul, respondent.
    I. The Surrogate’s findings, supported by the evidence and affirmed by the court below, lie beyond this court’s power of review; accordingly, the appeal should be dismissed. (Matter of Kelly, 285 NY 139; Matter of Granacher, 174 NY 504; Matter of Satterlee, 2 NY2d 285; Donigi v American Cyanamid Co., 43 NY2d 935; Pfohl v Wipperman, 34 NY2d 597; Armstrong v Campbell, 30 NY2d 704; Indiere v Strickroth, 28 NY2d 513; Pleasant Val. Packing Co. v Talarico, 5 NY2d 40.) II. Both courts below properly admitted the contents of the lost will to probate, as all three requirements of SCPA 1407 were satisfied. (Pleasant Val. Packing Co. v Talarico, 5 NY2d 40; Collyer v Collyer, 110 NY 481; Matter of Fox, 9 NY2d 400; Schultz v Schultz, 35 NY 653; Matter of Bohnson, 203 Misc 116; Matter of Utegg, 91 Misc 2d 21; Matter of Flasza, 57 Misc 2d 347; Matter of Breckwoldt, 170 Misc 883; Matter of Haefner, 4 Misc 2d 835.)

      Robert Abrams, Attorney-General {Charles Brody and Shirley Adelson Siegel of counsel), for ultimate charitable beneficiaries, respondent.
    The evidence fully supports the judgment. of the Surrogate’s Court which probated the conformed copy of the 1970 will as a lost will. (Matter of Fox, 9 NY2d 400; Schultz v Schultz, 35 NY 653; Matter of Eisele, 31 Misc 2d 173; Matter of Haefner, 4 Misc 2d 835; Matter of Graeber, 53 Misc 2d 640; Matter of Andrew, 195 Misc 421; Matter of Sheehan, 80 Misc 2d 793; Matter of Herle, 169 Misc 197; Matter of Seagram & Sons v Tax Comm. of City of N. Y., 14 NY2d 314.)

      Paul Richard Karan and Jorene R. Frenkl for New York Eye and Ear Infirmary, respondent.
    The courts below properly ruled that nonrevocation, due execution and contents of the December 24, 1970 will had been established, thus entitling it to probate. (Schultz v Schultz, 35 NY2d 653; Matter of Bly, 281 App Div 769; Matter of Levinsohn, 5 Misc 2d 605; Matter of Haefner, 4 Misc 2d 835; Matter of Graeber, 53 Misc 2d 640; Matter of Eisele, 31 Misc 2d 173; Matter of Fox, 17 Misc 2d 773, 9 NY2d 400; Matter of Cunnion, 135 App Div 864, 201 NY 123; Matter of Dake, 75 App Div 403; Matter of Katz, 78 Misc 2d 790.)
   OPINION OF THE COURT

Wachtler, J.

The question presented on this appeal is whether a lost will may be admitted to probate upon the submission of a conformed copy of the original will and the testimony of one witness which does not establish the actual substantive provisions of the will independently of the copy. The Appellate Division held that the proof was sufficient to permit the lost will to be admitted to probate. We reverse.

In 1970 the testator, Dr. Georges Kleefeld, executed a will prepared by his attorney. The original will was retained in the attorney’s files and the testator was given a conformed copy. The attorney died in 1972 and the testator died in 1979, at which time the original will could not be located in the attorney’s files. This proceeding to admit the lost will to probate was commenced by the will proponent pursuant to SCPA 1407. That statute provides as follows: “A lost or destroyed will may be admitted to probate only if 1. It is established that the will has not been revoked. 2. Execution of the will is proved in the manner required for the probate of an existing will, and 3. All of the provisions of the will are clearly and distinctly proved by each of at least 2 credible witnesses or by 1 witness and a copy or draft of the will proved to be true and complete” (L1966, ch 953).

At trial the proponent submitted evidence that the testator did not revoke the original will since it was lost while in the possession of the attorney-draftsman. The contestants submitted evidence tending to show that the testator had revoked the will by tearing it into pieces. Two of the witnesses who attested to the original will testified with respect to due execution but neither could remember any of the substantive provisions of the will.

Regarding the third requirement of SCPA 1407, Nadine Baris, the legal secretary who typed the original will, testified that she recognized her initials on the first page of the conformed copy of the will that was received into evidence. She also recognized that the type was the same used by her IBM typewriter. Baris recalled that the origi-" nal will contained many provisions and that many bequests were made to foreigners. She further testified, however, that she never read the will after she typed it in December, 1970 and could not remember any of the provisions of the original will. No other witness testified as to the contents of the original will.

The question thus becomes whether the testimony of Baris combined with the submission of the conformed copy of the will “clearly and distinctly” proves all of the provisions of the original will within the meaning of fhe SCPA 1407 (subd 3) in order to permit the admission of the lost will to probate. The Surrogate’s Court held that 'the three prerequisites for admission of a lost will to probate found in SCPA 1407 had been fully satisfied and admitted the lost will to probate. Specifically, the court, found that the presumption of revocation of the will by the decedent testator had been overcome by the testimony that the will was lost while in the possession of the attorney-draftsman and that the contestants did not meet their burden of proving revocation by physical act or superseding will or codicil. Satisfied that the original will had been duly executed, the court interpreted SCPA 1407 (subd 3) as merely necessitating proof of the authenticity of the submitted copy as a true and complete duplication of the original will and held that Baris’ testimony sufficiently identified the copy and proved that its contents were identical to the original.

We agree with the dissent at the Appellate Division that the Baris testimony did not satisfy the requirements of SCPA 1407 (subd 3) and therefore reverse.

SCPA 1407 permits the probate of a lost will which has been duly executed and has not been revoked only if “[a]ll of the provisions of the °will are clearly and distinctly proved by * * * 1 witness and a copy or draft proved to be true and complete.” The plain wording of the statute leads to the conclusion that the witness must testify as to the substantive provisions of the original will and not merely to the effect that the submitted copy is believed to be authentic. Had the Legislature intended the result approved by the majority below it would have undoubtedly provided that probate would be allowed upon the testimony of one witness establishing that a copy or draft is true and complete. We therefore read the statute as requiring that the will provisions be established by the testimony of one witness and that all the will provisions also be established by a true and complete copy.

Similar constructions of the statute by various authorities support the conclusion we reach today. As one commentator has accurately summarized: “After existence of the will and its destruction have been established, the contents must be proved. The statute provides that all of the provisions of the will must be clearly and distinctly proved by each of at least two credible witnesses or by one witness and a copy or draft of the will proved to be true and correct. In this respect the present statute does not differ from the prior one. Knowledge of the execution of the will is not knowledge of its contents. And while the witnesses need not give the exact language of the will, but merely the substance, each of the witnesses, must testify to all . the principal parts of the will. A copy of the will takes the place of the second witness, but the witness’ supporting letter does not” (1 Harris, New York Estates Practice Guide [3d ed], § 281, p 534; see Goldman, Practice Commentary, McKinney’s Cons Laws of NY, Book 58A, SCPA 1407; 2A Warren’s Heaton, Surrogate’s Court [6th ed], § 179, par 5, at pp 31-92).

The dissent nevertheless argues that the legislative history of SCPA 1407 (subd 3) supports the conclusion of the Surrogate’s Court and the majority below. One of the research counsel to the Bennett Commission reported to the commission concerning his proposal to revise the evidentiary requirements to provide: (1) due execution of the lost or destroyed will be established; (2) proof of the contents of the will by each of two witnesses; and (3) a copy of the will should suffice to prove contents (Fifth Report of Temporary State [Bennett] Commission on Modernization, Revision and Simplification of Law of Estates, NY Legis Doc, 1966, No. 19, Appendix L-10, Report No. 8.2.5A, p 796, July 15, 1964).

The dissent does not dispute that this recommendation was rejected by the Bennett Commission in favor of the rule established by the plain language of SCPA 1407 (subd 3). Although this fact alone disposes of the contention urged by the dissent, we nevertheless find that the legislative history referred to above is, at best, ambiguous and therefore unsupportive of the construction urged. In fact the passage relied on can be interpreted to support our construction of the statute for it states the general rule that the contents must be established by the testimony of two witnesses, but proposes an exception that a copy “should suffice to prove the contents”, meaning that a copy should be a permissible substitute for the testimony of one of the witnesses. Section 143 of the Surrogate’s Court Act, the predecessor to SCPA 1407, expressly required the testimony of “at least two credible witnesses, a correct copy or draft being equivalent to one witness”. It is, therefore, doubtful that the author of the passage intended to propose a radical alteration of existing law by suggesting that a copy of the will should serve as a sufficient substitute for the testimony of two witnesses instead of one.

But even if thé legislative history of SCPA 1407 were construed tó support the position that a copy of the will alone should constitute sufficient proof of contents, this is not supported by the mandate and the express language of the statute. This court should not ignore the words of a statute, clear on its face, to reach a different result through judicial interpretation (McKinney’s Cons Laws of NY, Book 1, Statutes, § 76).

The legislative policy embodied in SCPA 1407 is designed to prevent the probate of fraudulent wills. That policy will be subverted if a will, such as the one at issue here, may be established and admitted to probate merely on the basis of testimony regarding the event surrounding the execution of the will rather than as to the contents of the will itself. A strict construction of the statute in question is therefore essential in order to insure that this legislative policy is properly effectuated. Moreover, SCPA 1407 is a limited statutory exception to the common-law Statute of Wills and should be strictly construed for that reason alone (McKinney’s Statutes, § 301; 1 Harris, New York Estates Practice Guide [3d ed], § 281, at p 531).

It is evident in light of the foregoing that Nadine Baris’ testimony did not clearly and distinctly prove all the provisions of the will as required by SCPA 1407 (subd 3). Although she recognized her initials on the first page of the conformed copy of the will and that the type was the same used by her typewriter, and testified that the original will contained many provisions and many bequests to foreigners, she also testified that she never read the will after she typed it and therefore could not remember any of its provisions. Although the attesting witnesses remembered various events surrounding the execution of the will, neither of them had read it and were also unable to téstify as to the substance of its contents. Thus, assuming that the copy of the will submitted into evidence was actually a conformed copy of the original will, the respondent proponent did not otherwise carry his burden under SCPA 1407 (subd 3) by clearly and distinctly proving all the provisions of the will by at least one credible witness.

Accordingly, the order of the Appellate Division should be reversed, with costs to all parties appearing separately and filing separate briefs payable out of the estate, and the petition for probate of the lost will of Georges Kleefeld dismissed.

Meyer, J.

(dissenting). In my view the majority’s conclusion does not accord with the judicial construction of the predecessor provision or the legislative history of the present statute and is inconsistent with the rationale of Matter of Snide (52 NY2d 193). I therefore dissent.

At common law “only such an amount and degree of evidence was required, as to the contents of the will, as was necessary to establish any other fact in an action; that is to say, proof of the facts in issue, by a single witness” (Harris v Harris, 26 NY 433, 437), and that remains the rule, except as changed by statute (cf. Olsen v Olsen, 189 Misc 1046, 1051). The Revised Statutes of 1&29 included provisions relating to the recording by the Surrogate of a lost will after its provisions had been established in a Supreme Court action (see Harris v Harris, supra; Fifth Report of Temporary State Commission on Modernization, Revision and Simplification of Law of Estates, NY Legis Doc, 1966, No. 19, Appendix L-10, p 785). In 1870 the Surrogate’s Court was given jurisdiction of such actions and the statutory provision concerning proof of the contents of a lost will found its way into section 143 of the Surrogate’s Court Act. That section provided in pertinent part that: “A lost or destroyed will can be admitted to probate * * * but only in case * * * its provisions are clearly and distinctly proved by at least two credible witnesses, a correct copy or draft being equivalent to one witness.”

The provision, it was held, “should have a liberal construction in furtherance of justice and for the prevention of fraud” (Hook v Pratt, 8 Hun 102, 109; Early v Early, 5 Redf 376, 380; Matter of De Groot, 2 Connoly 210, 215). With respect to the proof required when there was no copy the rule was, therefore, that although each of the two witnesses must be able to testify as to all of the dispositional provisions (Matter of Ruser, 6 Dem 31; McNally v Brown, 5 Redf 372), that requirement applied only to the substantive dispositions ánd not to the appointment of an executor (Early v Early, supra), and in any event did not require that the witnesses testify to the exact wording of the will, but only to its substance as a whole (McNally v Brown, supra; Matter of Musacchio, 146 Misc 626). The prevention of fraud dictated that a person who would take under the will could not be one of the two witnesses, however (Keery v Dimon, 91 Hun 642, opn in 37 NYS 92, affd 153 NY 662) and that thé claimed will not be admitted when the two witnesses disagreed as to its contents (Sheridan v Houghton, 6 Abb NC 234, mod as to costs, and affd 84 NY 643; Matter of Yanover, 16 Misc 2d 128; Matter of Ruser, supra; McNally v Brown, supra). In sum, the credible testimony of each of two witnesses who could testify to the will’s content was sufficient to admit a lost will to probate even though no copy could be produced (Matter of Graeber, 53 Misc 2d 640; Matter of Fenstad, 22 Misc 2d 408).

When a copy or draft was produced, however, there being less possibility of fraud, the statute directed that the copy or draft take the place of one witness. That direction has been held a number of different times to authorize admission to probate of the will on the testimony of the attorney who drew it or of the secretary who typed it, if only he or she identifies the copy as decedent’s will. Thus, in Matter of Granacher (74 App Div 567, 571) the testimony of the attorney who had charge of the preparation of the will and who, although he could not recall whether he personally wrote it, was acquainted with its contents which he had read to the testatrix, was held “to fully meet the requirements of the statute,” and we affirmed (174 NY 504) “on the ground that the findings of fact by the surrogate having been affirmed unanimously by the Appellate Division, we are prevented from examining the questions argued.” Again, in Matter of Suarez (114 NYS2d 194, 195), Surrogate Frankenthaler admitted a will to probate, stating: “The attorney-draftsman adequately identified the propounded paper as the carbon copy of the original will and this identification, together with his testimony, is sufficient proof of the contents of the will as required by Surrogate’s,Court Act, section 143.” His decree admitting the will to probate was reversed on other grounds (281 App Div 870), but on retrial he again held that the paper produced had been clearly and distinctly proven and on appeal the later probate decree was affirmed, without opinion (283 App Div 774). A similar holding will be found in Matter of Breckwoldt (170 Misc 883, 886, 887, 888) where the stenographer who typed and was a subscribing witness to the will having testified “in substance that the contents of the dispositive provisions” of the will were identical with the copy, Surrogate Wingate, over the con- . tention that testimony of a witness other than the person identifying the will was required, noted that: “It is the conscience of the court which must be satisfied upon this point. As the court reads them, the provisions of the statute in this connection provide merely a rule of caution against too ready a conviction on this issue, and inhibit an expression of such conviction merely upon the unsupported recollection of a single witness. This must be fortified either by corroborative testimony or by documentary demonstration of a satisfactory nature. Whether either will be sufficient for the purpose must, in the nature of things, be remitted to the decision of the trier of the facts. If, on the composite demonstration of the record, he is convinced that the documentary proof adduced is, in fact, a correct draft or copy of the lost will, the statute requires only one witness in addition. The manner in which he shall be satisfied on this point is not specified and obviously may occur in any one of many ways. The point, however, is that if he is so satisfied the will is admissible to probate even though only one witness testifies in its support.” He ordered the will be admitted to probate, the case being identical with Matter of Granacher (supra), in that (p 887) “In both, the copy of the will was introduced into evidence and its correctness certified by a person instrumental in its preparation and in both the same witness testified in substance to the contents of the document, not, it is true, by reciting its provisions verbatim but by incorporating its terms into his testimony by reference, as it were.” Like conclusions have been reached in Matter of Reedy (64 NYS2d 779, 780 [testimony of subscribing witness who typed the will and who produced a carbon copy sufficient]); Matter of Wintjen (101 NYS2d 606, 607 [contents sufficiently proved by a conformed copy produced by the attorney and by his testimony]); Matter of Juriga (140 NYS2d 656, 657 [attorney’s identification of carbon copy, and his testimony, sufficient proof of contents]); see, also, Matter of Utegg (91 Misc 2d 21); Matter of Eisele (31 Misc 2d 173); Matter of Haefner (4 Misc 2d 835); Matter of Bohnson (203 Misc 116); Matter of Shlevin (157 Misc 40); Matter of Dorrity (118 Misc 725). The only contrary New York decision that has been found is Collyer v Collyer (4 Dem 53, 62), which held testimony of a witness other than the person who testifies to the correctness of the draft to be required under the section. Concerning that case it is sufficient to note that the statement was dictum and was not passed upon by either General Term (41 Hun 642) or this court (110 NY 481), which expressly noted that the issue had not been considered.

Under an identically worded statute, the Indiana Supreme Court in Barnes v Bosstick (203 Ind 299, 302) held it sufficient that the lawyer who drew the will identified a carbon copy, that being “equivalent to his having orally stated (or read) the contents of the duplicate copy,” and the Supreme Court of Arkansas in Bradway v Thompson (139 Ark 542, 554) held that testimony of the attorney who prepared the will identifying a carbon copy and of his secretary that the copy was made by her from dictation by the attorney met the requirements of the statute.

It is, therefore, clear that the Surrogate’s Court Act provision did not require that the testimony of the witness “establish the actual substantive provisions of the will independently of the copy” and, as will be hereafter developed, neither does the present statute (SCPA 1407). Indeed, bearing in mind that the will included 48 separate bequests in the event the testator’s wife predeceased him, it would be a matter of extreme suspicion had the secretary who typed it been able nine years later to testify as to its “actual substantive provisions.” It is, moreover, clear beyond peradventure that the testimony in the instant case fully met the statute’s requirements. Nadine Baris’ testimony establishes that she read the will in December, 1970, when it was prepared. She identified the photocopy presented to the court as “an exact copy of the original,” and testified that she had “checked the original of that photocopy” and was staking her honor and her oath on the fact that it was an exact copy. She recalled not only the initials and date (LK/nmb/12/22/70) that appeared in the upper corner of the first page under the cover and the fact that she had typed them, but that, they were the initials of Leonard Kommel (the now deceased attorney who drew the will) and herself and the date was that of the day on which he gave her the will to type, that the material she worked from “was partially handwritten and partially dictated by Mr. Leonard Kommel,” that she typed the particular blue back which was on the photocopy presented to the court, that she recognized her typewriter which was different from others in the office, that all of the pages of the copy looked like the type of work she did, and that there were many bequests in the will, some of them out of the country. The Surrogate also noted for the record, and both attorneys for the opponents agreed, that there were no extra staple holes in the copy presented to the court and that “nobody has ever removed these staples and substituted anything.” Under the cases detailed above that evidence was sufficient, if believed, to establish the contents of the will. The Surrogate, who had the advantage of seeing and hearing the witnesses, found as a fact that “the contents of the copy were the same as those of the original will” and that finding, having been affirmed by the Appellate Division on the opinion of the Surrogate, is now beyond our review (Matter of Granacher, 174 NY 504, supra).

Discussion so far has been in terms of the Surrogate’s Court Act provision rather than of the present statute. SCPA 1407 provides that: “A lost or destroyed will may be admitted to probate only if * * * 3. All of the provisions of the will are clearly and distinctly proved by each of at least 2 credible witnesses or by 1 witness and a copy or draft of the will proved to be true and complete.” (Emphasis added.) Despite the changes in language indicated by italics in the above quotation, the result in the present case is not changed. As the analysis above of the two witness provision of section 143 of the Surrogate’s Court Act shows, and as Appendix L-10 to the Report of the Temporary State Commission (NY Legis Doc, 1966, No. 19, pp 794, 796) confirms, clear and distinct proof from “each of two or more witnesses” (id; italics supplied) was required as a matter of decisional law under that statute and, the copy plus one witness language following after the disjunctive “or” and a repetition of the word “by”, the words “each of” cannot be properly read grammatically as modifying the latter provision.

Nor was any change in substance made in the copy plus one witness provision, although a more detailed explanation in proof of that statement is required. The recommendation with respect to that provision was for adjustment “in the ‘evidentiary’ clause of the statute to make explicit that * * * a true copy or draft of the lost or destroyed will, properly established as such a copy or draft, shall suffice to prove the contents of such a will.” The quotation in the majority opinion (p 259) is, therefore, correct so far as it goes, but overlooks the explanation immediately preceding which obviates any doubt concerning what was intended. The explanatory paragraph stated that “On the evidentiary side, the statute should be retained with the following adjustments: * * * A revision of the present statute to provide that a true copy or draft of the lost or destroyed will (iestablished by cogent evidence) shall suffice, without more, to establish the contents of the lost or destroyed will” (italics supplied).

That recommendation was not adopted by the commission, the bill submitted to the Legislature containing, instead, the language adopted as SCPA 1407 (subd 3) (Report, p 898) and being accompanied by an explanatory memorandum (Report, p 1093) stating that the section was “Surr. Ct. Act §143 with changes in phraseology and addition of subdivision 2. See [Appendix L-10].” The change in phraseology from “a correct copy or draft” plus one witness to “1 witness and a copy or draft * * * proved to be true and complete” (italics supplied) worked no change in the quality of the evidence required by the statute to admit a lost will to probate. The majority, while ignoring the many cases referred to above (at pp 261-265) dealing with the one witness plus copy provision of the subdivision, supports its construction by quotation from a commentator and by repeatedly referring to the “plain language” of the provision (pp 258, 259). The commentator’s text, however, when viewed with its footnotes, refers, it is plain, to the two witness provision rather than the one witness plus copy provision. And no number of repetitions of the “plain language” characterization can convert the words “by 1 witness and a copy or draft of the will proved to be true and complete” into a proscription of proof of the provisions of the will by the testimony of the one witness that the copy is a true and complete statement of its provisions if that testimony is sufficiently credible for the trier of fact to conclude that the copy is in fact the will as executed even though the witness cannot recite by rote all of its substantive provisions. Were there nothing more to the case than the testimony set forth above, the majority’s conclusion (p 258) that “the witness must testify as to the substantive provisions of the original will” in some other way than by authenticating the submitted copy as true and complete would, therefore, be incorrect.

There is, however, additional evidence, not referred to by the majority, which establishes with irrefutable clarity the authenticity of the photocopy of the will. The testimony of two of the subscribing witnesses establishes that Dr. Kleefeld and his wife both executed their wills at the same time and place (the dining room of the Kleefeld apartment). Present were the two Kleefelds, the two subscribing witnesses and Leonard Kommel, the attorney. Mrs. Kleefeld’s will was executed first, the two witnesses then signed as witnesses to the will, as did Leonard Kommel, a copy was conformed by Kommel, the copy given to Mrs. Kleefeld and the original retained by Mr. Kommel. The same procedure was followed for the execution of Dr. Kleefeld’s will, and the subscribing witness, Julius Bisci, testified that the copy given to Dr. Kleefeld was a photocopy in a blue back, which showed on its face page that it was the last will and testament, which consisted of a few pages, though he could not say how many, and the printing on the last page of which (conforming the copy) he had watched Mr. Kommel insert, and that the copy of Dr. Kleefeld’s will produced in court was the copy Mr. Kommel gave to the doctor. Though he had not read or otherwise become acquainted with all the provisions of the will, Bisci’s testimony together with that of Ms. Baris and the Surrogate’s finding that the staples had not been removed from the copy presented in court was sufficient to authenticate the copy as a copy of the will Dr. Kleefeld had executed. The other subscribing witness who testified, Mr. Phillips, did not say in so many words, as did Bisci, that the copy in court was the copy given Dr. Kleefeld, but he confirmed that he had looked at the first and last pages and his testimony was otherwise essentially the same as Bisci’s.

The will of Mrs. Kleefeld was admitted in evidence without objection. That will appears to the naked eye to be in the same type face as the doctor’s will and like the doctors will bears in the upper lefthand corner of the first page the legend “LK/nmb/12/22/70.” It is, moreover, identical in its provisions with Dr. Kleefeld’s will, except as it substituted his name for hers in its dispositive provisions and made resulting conforming changes, and except that in disposing of the estate should the other spouse not survive (or die in a common disaster) one of the 48 specific bequests was in the sum of $2,000 in Dr. Kleefeld’s will but in the amount of only $1,000 in Mrs. Kleefeld’s will. The date of execution borne by the two wills is the sanie, December 24, 1970. The names of the subscribing witnesses appear in the same order and are the same names and addresses that appear on the conformed copy of Dr. Kleefeld’s will, but appear to be in manuscript writing whereas on the doctor’s will they are printed. Moreover (as the Surrogate noted on the record when Mrs. Kleefeld’s will was introduced), both wills consisted of nine typewritten pages. Mrs. Kleefeld died on February 1,1971. Her will was not admitted to probate (because Dr. Kleefeld, as the sole beneficiary under it, noted that he was tenant by the entirety of the property that would have passed under it), but a copy of the will was filed as part of the petition to fix tax on her estate. The copy of her will admitted in this probate proceeding came from the Surrogate’s Court file.

One has to bury one’s head deep in the sand not to conclude that the will Dr. Kleefeld executed on December 24,1970 was the original of the will the photocopy of which was produced in court, for the combination of Nadine Baris’ identification of the copy as Dr. Kleefeld’s will and recollection of its many bequests, some to people in foreign countries, Julius Bisci’s testimony concerning the execution and conformance of copies of the two wills and his identification of the copy of Dr. Kleefeld’s will, and the bequests set forth in Mrs. Kleefeld’s reciprocal will, exactly conforming (with but one minor difference) to that of Dr. Kleefeld permits no other conclusion. Indeed, the probate of Dr. Kleefeld’s December 24, 1970 will could be the product of fraud only if the doctor had executed a different later will which the perpetrator destroyed in order to obtain the benefit of a bequest in the earlier will, or if the will executed by the doctor on December 24, 1970 was in fact different from that executed by his wife and the perpetrator stood to recover under the copy, if probated, more than he or she would have under the will as executed and was wily enough to forge a copy which duplicated, reciprocally, Mrs. Kleefeld’s will, and sufficiently ungreedy to be willing to share the estate with 47 other specific legatees and the four charities which received the residue, yet a sufficient blunderer in executing his plan to misstate the amount of one of the 48 legacies by $1,000 and then seek to correct the mistake in ink and by marginal notation instead of simply retyping the page he was forging. Objectants introduced testimony that Dr. Kleefeld had spoken of executing a later will, but neither court below credited it. Even less credit can be given to the forgery possibility, bearing in mind that the December 24, 1970 paper executed by the doctor remained in lawyer Kommel’s safekeeping and, so far as appears, was lost in the several movements of the lawyer’s files after Kommel died in April, 1972.

I thought that Matter of Snide (52 NY2d 193, supra) signaled our move away from the feckless formalism to which the majority now once again returns. In that case, as in this, we dealt with a reciprocal will, there one prepared for the wife but mistakenly signed by the husband. We directed probate notwithstanding that to do so the two wills had to be read together. The conclusion there reached applies equally here, word for word: “Under such facts it would indeed be ironic — if not perverse — to state that because what has occurred is so obvious, and what was intended so clear, we must act to nullify rather than sustain this testamentary scheme. The instrument in question was undoubtedly genuine, and it was executed in the manner required by the statute. Under these circumstances it was properly admitted to probate” (52 NY2d, at p 196).

The issue for determination is whether the copy presented bespeaks the testamentary plan of the testator, not whether under other circumstances there could have been fraud. To permit the frustration of Dr. Kleefeld’s testamentary plan at the behest of three of his nieces, dissatisfied apparently with the $1,000 legacy left to each, at the expense of his wife’s nephew, who, the Surrogate found, had been raised in Dr. Kleefeld’s home and was treated as his son, and of the many other relatives of his wife, friends of both, and employees of the doctor’s and charities named for specific bequests as well as the four charities that would receive the residuary (none of whom will receive any part of the estate if the will is not probated) is, indeed, to turn the meaning and purpose of the lost will statute on its head. The words of Surrogate Wingate in Matter of Breckwoldt (170 Misc 883, 888, supra) bear repeating here: “It is the conscience of the court which must be satisfied upon this point [whether the devolutionary plan in the copy propounded is in fact what the testator intended]. As the court reads them, the provisions of the statute in this connection provide merely a rule of caution against too ready a conviction on this issue, and inhibit an expression of such conviction merely upon the unsupported recollection of a single witness. This must be fortified either by corroborative testimony or by documentary demonstration of a satisfactory nature. Whether either will be sufficient for the purpose must, in the nature of things, be remitted to the decision of the trier of the facts.” Here, the conscience of an experienced and conscientious Surrogate has been satisfied, and the propriety of his satisfaction has been confirmed by the Appellate Division’s review. More is not required by the statute.

I have not overlooked the fact that neither the Surrogate nor the Appellate Division commented upon the will of Mrs. Kleefeld and its relation to the question at issue, nor the prohibition against our making factual findings in the posture of this case. Presumably the failure of the courts below to comment with respect to Mrs. Kleefeld’s will stemmed from the view, expressed in the first part of this dissent, that the findings the Surrogate made were sufficient under the statute without more. And although we cannot make new findings, we need not ignore evidence in the record which makes evident how egregiously wrong it would be to dismiss the petition for probate.

If I am correct as to the construction of SCPA 1407 (subd 3), as I believe the first part of this opinion demonstrates, the order of the Appellate Division should be affirmed. If I am not, there nevertheless should not be a dismissal. Rather the matter should be remitted to the Surrogate for a new trial or the making of new findings, as he deems appropriate, it being clear on consideration of all of the evidence that was presented before him that proponent made out a prima facie case. My own vote is, of course, to affirm.

Chief Judge Cooke and Judges Gabrielli and Jones concur with Judge Wachtler; Judge Meyer dissents and votes to affirm in a separate opinion in which Judge Jasen concurs; Judge Fuchsberg taking no part.

Order reversed, with costs to all parties appearing separately and filing separate briefs payable out of the estate, and petition dismissed.

      . The additional facts noted by the dissent were not established by either court below and thus cannot form the basis of a decision by this court (CPLR 5501, subd [b]). In any event, these additional facts in no way affect our interpretation of SCPA 1407 (subd 3) or, therefore, the disposition of this appeal.

      . Even if we were to assume, arguendo, as indeed the dissent is at length to demonstrate, that the photocopy was a true and complete copy of the original will, that is not the determinative issue. Under subdivision 3 of the revised statute proof of such a copy must in addition be corroborated by the testimony of one witness clearly and distinctly proving the substantive provisions of the original will. It is this later component which is missing in this instance.

      . (Majority opinion, p 256.)

      . Kahn v Hoes (14 Misc 63, 73): “After a lapse of seventeen years he shows the same remarkable recollection of details, even to the phraseology of the will and the physical appearance of the draft which is in evidence, which, as I have said, tends to deepen rather than allay doubts which have arisen respecting the facts.”

      . The Appendix at page 796 makes this pellucidly clear: “On the evidentiary side, the statute should he retained with the following adjustments: * * * (2) An adjustment of the language of the present statute to make clear that each of the two or more credible witnesses to the provisions of the lost or destroyed will must prove all of its contents clearly and distinctly.”
      “Recommendations: * * * Adjustments are recommended in the ‘evidentiary’ clause of the statute * * * to make clear that each of the two or more witnesses to the provisions of the lost or destroyed will must prove all of its contents” (italics in original).

      . Thus, the emphasis placed upon the words “each of” in the dissent below (but which the majority in this court does not espouse) was clearly misplaced.

      . Page 61 of the Report states: “It should be carefully noted that the recommendations contained in such reports [the Appendices from one of which the above quotations are taken] are not necessarily the official recommendations of the Commission, such official recommendations being contained only in bills as submitted to the Legislature.”

      . This is clear from its citation of McNally v Brown (5 Redf 372) and Matter of Yanover (16 Misc 2d 128).

      . In evidence is a letter dated 20 days after the date of execution of the wills in which Kommel acknowledges receipt of a check and states that the wills were being kept in his office safe.

      . Many of which were to persons or charities in foreign countries.

      . The conformed copy of the doctor’s will bears an ink change, with marginal notation, of the bequest to $1,000 but no evidence was presented as to when that change was made. As admitted by the Surrogate, that bequest remains at $2,000.

      . I do not suggest that the nieces had anything to do with the disappearance of the original of Dr. Kleefeld’s will. My point is that they receive a windfall, never intended by the testator, and that most of the others, whom or which he intended to benefit, will receive nothing.


source: Caselaw Access Project

author: Chief Judge Cooke.

license: Public Domain

text:
    Newsday, Inc., Respondent, v Town of Huntington et al., Defendants, and Half Hollow Hills Central School District of Huntington and Babylon et al., Appellants.
    Argued February 9, 1982;
    decided March 30, 1982

      POINTS OF COUNSEL

      Bernard C. Smith for appellants.
    I. Respondent Newsday did not fulfill all the criteria set forth under section 485-b of the Real Property Tax Law in order to qualify for the exemption from appellant school district taxes. II. The defense of equitable estoppel is not applicable to the act of the school district, a governmental entity acting pursuant to statutory power. (Richenbach v Windward at Southampton, 80 Misc 2d 1031, 48 AD2d 909, 38 NY2d 912; People ex rel. Haim v Chapman, 274 App Div 132; Usery v Turner Elkhorn Min. Co., 428 US 1; Quaglia v Incorporated Vil. of Munsey Park, 54 AD2d 434.) III. The trial court has improperly interpreted the April 9, 1979 resolution of the school district. IV. Strict construction of section 485-b and the Legislature’s intent in passage of this statute establish the validity and effectiveness of the school district’s April 9 resolution to “opt out” of the tax exemption program.

      Gary N. Weintraub and Frank J. Faruolo, Jr., for respondent.
    I. Respondent is entitled to the exemption mandated by section 485-b of the Real Property Tax Law. (People v Ricken, 29 AD2d 192, 27 NY2d 923; Matter of Neuner v Weyant, 63 AD2d 290; Matter of Posner v Levitt, 37 AD2d 331; Matter of Faculty-Student Assn. of State Univ. Coll. at Oswego v Sharkey, 35 AD2d 161, 29 NY2d 621; Matter of Koner v Procaccino, 39 NY2d 258; Matter of Grace v New York State Tax Comm., 37 NY2d 193; Matter of Association of Bar of City of N. Y. v Lewisohn, 34 NY2d 143; Matter of Meyer, 209 NY 386.) II. Appellant school district does not levy taxes, and as such has no power to reduce the quanturn of the exemption. (People ex rel. Oswego Falls Corp. v Foster, 251 App Div 65, 278 NY 494; Board of Educ. v Town of Islip, 15 AD2d 789.) III. The determinations below were based upon compatible construction of the statute and appellant’s own resolution and not upon any improper application of the doctrine of equitable estoppel. (White v La Due & Fitch, 303 NY 122; Rothschild v Title Guar. & Trust Co., 204 NY 458; New York Tel. Co. v Telesystems Corp., 27 AD2d 866; Bender v New York City Health & Hosps. Corp., 38 NY2d 662; Quaglia v Incorporated Vil. of Munsey Park, 54 AD2d 434; Richenbach v Windward at Southampton, 80 Misc 2d 1031, 48 AD2d 909, 38 NY2d 912; Eden v Board of Trustees of State Univ. of N. Y., 49 AD2d 277; Matter of Neuner v Weyant, 63 AD2d 290; Matter of Chrysler Props. v Morris, 23 NY2d 515.)

      Robert L. Beebe, Stephen J. Harrison and James J. O’Keeffe for the State Board of Equalization and Assessment, amicus curiae.

    I. The privilege of exemption from taxation is determined annually as of taxable status date. (People ex rel. Luther v McDermott, 265 NY 47; Matter of Semple School for Girls v Boyland, 308 NY 382; Matter of Adams Co. v Nist, 72 AD2d 908; Rochester Housing Auth. v Sibley Corp., 77 Misc 2d 205, 47 AD2d 718.) II. The courts below have misinterpreted the legislative purpose of chapter 397 of the Laws of 1977. (Anderson v Regan, 53 NY2d 356.) III. No doctrine of law or equity mandates an exemption for Newsday. (Quaglia v Incorporated Vil. of Munsey Park, 54 AD2d 434, 44 NY2d 772; Bronx Garment Center v City of New York, 199 Misc 513, 279 App Div 1048; Matter of Neuner v Weyant, 63 AD2d 290, 48 NY2d 975.)
   OPINION OF THE COURT

Chief Judge Cooke.

The issue in this case is whether respondent is entitled under section 485-b of the Real Property Tax Law to a partial exemption from school taxes levied on its property in the Town of Huntington, Suffolk County. Inasmuch as respondent’s property was not encompassed by the school board’s resolution removing the exemption, respondent is entitled to the exemption. The" order of the Appellate Division should therefore be affirmed.

Respondent Newsday is a daily newspaper based on Long Island. In November, 1977, it was granted a building permit from the Town of Huntington for a $6.5 million publishing plant and began construction. In September, 1978, Newsday representatives asked the town assessor about the procedures for obtaining a partial tax exemption and were told to file an application by June 1, 1979.

By April 9, 1979, the publishing plant was 90% completed, and the town issued a temporary certificate of occupancy on April 12. When Newsday filed for a partial exemption under section 485-b of the Real Property Tax Law on May 10, the assessor stated that it would have an exemption from town, county and special district taxes, but not school taxes. The assessor explained that the school district had adopted on April 9, 1979, a resolution that reduced to zero the exemption authorized under section 485-b.

Newsday then brought an action for a judgment declaring that its printing plant was entitled to a partial exemption from school taxes pursuant to section 485-b. Supreme Court granted Newsday’s motion for summary judgment, and the Appellate Division affirmed with one Justice dissenting.

This dispute concerns the applicability to respondent of the tax exemption program established by section 485-b of the Real Property Tax Law. The section, enacted in 1976 (L 1976, ch 278, § 1), granted partial tax exemptions for a 10-year period to encourage the construction and expansion of commercial and industrial facilities in the State (see memorandum of Executive Department, McKinney’s Session Laws, 1976, pp 2309-2310).

Subdivision 7, however, permitted various local governmental units and a school district that levied school taxes to “reduce the per centum of exemption otherwise allowed pursuant to this section”. As enacted, the subdivision thus permitted a reduction in the exemption, even on property that had previously énjoyed such an exemption. In 1977, the Legislature amended subdivision 7 to restrict such reductions by providing that “exemptions existing prior in time to passage of any such local law or resolution [reducing the exemption authorized] shall not be subject to any such reduction so effected” (L 1977, ch 397, § 1). The municipality or school district remained free to opt out of the exemption program with respect to property that at that time did not enjoy an exemption.

On April 9, 1979 the Board of Education of the Half Hollow Hills School District of Huntington and Babylon adopted a resolution that rescinded a prior resolution and denied the exemption set forth in section 485-b “to any Real Property constructed, altered, or improved after the date of this resolution.” The focus of the dispute in this case is the effect of the April 9 resolution upon respondent’s property.

Respondent argues that the amended language of subdivision 7 permitted localities to opt out of the exemption program only with respect to projects that were commenced after the effective date of the local law or resolution. Such a position finds no support in the language of the statute, which speaks of “exemptions existing prior.in time to passage of any such local law or resolution” (emphasis added). At the time that the resolution was passed, News-day had not completed the procedures set forth elsewhere in section 485-b for obtaining an exemption. Thus, strictly speaking, an exemption did not “exist” on April 9, 1979, when the resolution was approved.

Newsday nonetheless urges that the plant was entitled to an exemption because it had been built, at a cost of millions of dollars, in reliance upon the availability of the partial exemptions. This court has no occasion to consider the merits of this argument, however, because the language of the school board’s resolution simply did not encompass the Newsday project.

There is an affirmed finding of fact below that as of the date of the resolution, the plant was at least 90% completed. Indeed, three days later the Town of Huntington issued a temporary certificate of occupancy. By its own terms, the resolution applied only to property “constructed, altered, or improved” after the date of the resolution. Certainly, under any reasonable reading of the word “constructed”, the newspaper’s plant fell outside the terms of the resolution. The assessor, therefore, erred when he subsequently denied Newsday a partial exemption from school taxes based upon the school board’s resolution.

Finally, in light of the resolution’s language, the contention of the amicus curiae that as of the “taxable status date” of June 1, 1979, the school district had withdrawn the assessor’s authority to grant an exemption misses the mark. The resolution withdrew the assessor’s authority to grant exemptions only for projects constructed, altered or improved after April 9, 1979.

In conclusion, although local governments and certain school districts may remove themselves from the tax exemption program of section 485-b of the Real Property Tax Law, the school board’s resolution did not apply to the project in question. The property was therefore entitled to the exemption.

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

Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Order affirmed.

       The prior November 22, 1976 resolution, to which the April 9, 1979 resolution referred, merely stated that the school district would take part in the exemption program. This resolution had no practical effect because section 485-b made the partial exemptions mandatory unless a locality opted out of the program.


author: Fuchsberg, J.

text:
    Herbert Roth, Individually and as Executor of Ruth Roth, Deceased, Respondent, v Herbert J. Michelson et al., Defendants, and Lillian Michelson et al., Appellants.
    Argued February 16, 1982;
    decided March 23, 1982

      POINTS OF COUNSEL

      Lillian R. Michelson and others, appellants pro se.

    I. Statute of Limitations is a defense available to defendants when a part payment is not made before the expiration of the time limited for the commencement of the action. (Kassner & Co. v City of New York, 46 NY2d 544; Bergenfeld v Midas Collections, 66 Misc 2d 665, 38 AD2d 939.) II. The claim is barred by the Statute of Limitations on grounds that interest was purchased for value and without actual notice of an extension. (Bergenfeld v Midas Collections, 66 Misc 2d 665.) III. The letter and check were insufficient as an acknowledgment of the debt to revive the Statute of Limitations on the mortgage. (Oliphant v New York Yankees, 42 Misc 2d 394.) IV. The court erred when it refused to grant defense attorney’s request for an adjournment and reached a decision without all the facts, thus depriving defendants of a fair and impartial trial.

      Stanley S. Getzoff and Joseph Winston for respondent.
    I. Once the Statute of Limitations has run, it is not too late for the debtor to extend the debt by some later act. (Bernstein v Kaplan, 67 AD2d 897; Morris Demolition Co. v Board of Educ., 40 NY2d 516; Picciano v Conrad, 65 AD2d 586; Bergenfeld v Midas Collections, 38 AD2d 939.) II. The trial court did not err when it refused to grant defendant’s attorney’s request for an adjournment.
   OPINION OF THE COURT

Fuchsberg, J.

The ultimate issue on this appeal, raising questions touching on sections 17-101, 17-105 and 17-107 of the General Obligations Law, is whether purchasers of an interest in realty, having acquired it for value and with knowledge that the second mortgage indebtedness it secured was in default, but without actual notice that the original owner had made a payment on account of the defaulted indebtedness after the Statute of Limitations had run, may yet avail themselves of the time lapse to bar foreclosure of their acquired interest. We hold they may.

The factual context in which the problem is posed is essentially undisputed. In I960, Herbert Roth and his now deceased wife, Ruth, loaned $11,000 to Ruth’s brother, Herbert J. Michelson, and the latter’s wife, Lillian. To secure the debt, the Roths took back a second mortgage on the Michelsons’ one-family dwelling in Mount Vernon. The mortgage and accompanying bond called for semiannual interest and amortization payments, but only two payments were ever forthcoming, one for $400 in 1961 and a second for $200 12 years later, in 1973. The Michelsons, who have since divorced, separated in 1972, the house continuing to be the wife’s residence. So far as the evidence indicates, the second payment was made by Herbert Michelson on his own.

This was the picture in November, 1975, when Herbert filed an individual petition in bankruptcy. In the schedules filed in that proceeding, he listed the mortgage obligation as a secured debt. At a subsequent public sale conducted at the instance of the trustee in bankruptcy, Carmella and Natale Russo, Lillian’s parents, bid in the property, subject to existing liens, for $500. Lillian Michelson does not deny that she encouraged them to do so. A foreclosure action on behalf of Herbert Roth and his wife’s estate ensued.

The question that emanates is the extent to which the action is barred by the applicable six-year Statute of Limitations (CPLR 213, subd 4), which, given the mortgagor’s failure to make any payment for six years after the $400 payment was made in 1961, by then ordinarily would have run its course. Plaintiffs contend, however, that the 1973 payment caused the limitations period to commence running all over again (General Obligations Law, §§ 17-101, 17-107).

As to Lillian’s interest, both the Trial Judge and the Appellate Division held, and we agree, that foreclosure is unavailable, essentially because, absent proof that she was aware of Herbert’s 1973 payment, she cannot be charged with a revival of the limitations period. However, as to Herbert’s interest, which was conveyed to the Russos after Herbert’s bankruptcy, the courts found that the payment kept the mortgage alive. With this we disagree. Our reasons follow.

It is a long-standing common-law rule that, if part payment of a debt otherwise outlawed by the Statute of Limitations is made under circumstances from which a promise to honor the obligation may be inferred, it will be effective to make the time limited for bringing an action start anew from the time of such payment (see Brooklyn Bank v Barnaby, 197 NY 210; see, also, Morris Demolition Co. v Board of Educ., 40 NY2d 516, 520). The full force of this rule is not diminished or superseded by statutory overlay. For, while section 17-101 of the General Obligations Law provides that, if the promise “by the party to be charged thereby”, even without part payment, is in written form, this alone will take it “out of the operation of the provisions of limitations of time for commencing actions”, it also expressly provides that “[t]his section does not alter the effect of a payment of principal or interest”. It follows that both case law and statute are compatible.

These legal criteria in mind, we observe that the check drawn by Herbert Michelson for the 1973 payment carries the legend “payment against mortgage, 14 Hamilton Avenue”, the latter being the address of the mortgaged premises. In addition, it is uncontested that the check was delivered to the Roths with a note in which Herbert declared it “my hope for the future and my determination to make good ALL of my debts, particularly my debt to you two” (emphasis in the original). That these statements were sufficient to revive plaintiffs’ cause of action against Herbert under either the statutory or common-law rule is self-apparent.

However, to determine whether the revival of the debt carried over to plaintiffs’ right to foreclose the underlying mortgage, the object of the present action, we must turn to section 17-107 of the General Obligations Law, captioned, pertinently for present purposes, “Effect of part payment on time limited for foreclosure of a mortgage”. Under its subdivision 2 (par a, cl [2]), a payment which will revive a debt is also effective to revive the right to foreclose as against both (1) the person who made the payment and (2) a person who subsequently “acquire[s] from him any such interest” in the property “without giving value or with actual notice of the making of the payment” (emphasis added).

Neither the “without giving value” nor the “actual notice” conditions were met here. The Russos gave value for the property, the $500 paid to the trustee in bankruptcy; while plaintiffs characterize this as a “nominal sum”, nothing in the statutory language excludes from its embrace those who happen to have made a bona fide purchase on favorable terms. Nor, standing alone, does the fact that Lillian Michelson occupied the house, or that she is the daughter of the Russos or that these factors may have motivated the Russos to make the purchase qualify these requirements. What is significant is that there is nothing to indicate that the Russos had actual knowledge of the 1973 payment or, for that matter, of the writing with which Herbert Michelson transmitted it to the Roths (see General Obligations Law, § 17-105, subd 3, par a).

To this the Roths counter that the Russos, having purchased the property at a bankruptcy sale, were chargeable with knowledge of the contents of the bankruptcy schedule, which, because it listed the mortgage debt as an open obligation, should have alerted them to the fact that Herbert may have acknowledged its continuing viability for Statute of Limitations purposes. The scheduling of the 1960 mortgage balance, however, did not take the place of the “actual notice of the making of the [1973] payment’ called for by the plain wording of the statute (emphasis added). It was not enough that it could have invited inquiry. After all, a bankrupt, in the effort to wipe the slate clean, may be expected to err on the side of inclusion of every dischargeable item, however uncertain its factual or legal merit may be. And, of course, most decisively, a primary principle of statutory interpretation is that legislative intent, when unobscured by ambiguity or inconsistency, is to be determined by taking the legislative language literally (see People v Graham, 55 NY2d 144, 151, and the authorities cited thereat; McKinney’s Cons Laws of NY, Book 1, Statutes, §§ 71, 76).

In sum, the 1973 payment by Herbert Michelson did not extend the Statute of Limitations period as to defendants Russo.

Accordingly, on the appeal by defendants Russo, the order of the Appellate Division should be reversed, with costs to the appellants, and the complaint dismissed. As to the appeal taken by defendant Lillian Michelson, it should be dismissed, without costs.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Meyer concur.

On appeal by defendant Michelson: Appeal dismissed, without costs.

On appeal by defendants Russo: Order reversed, with costs, and complaint dismissed.

      . As the action was thus dismissed as to defendant Lillian Michelson, she is not a party aggrieved (CPLR 5511) and her appeal to us must be dismissed as well.

      . We note that subdivision 2 of section 17-107 also provides that if the payment reviving the debt is made before expiration of the time limited for the commencement of the action, it is effective against any subsequent purchaser to the extent of the interest that the person who made the payment had at the time without regard to whether such purchaser had notice of the payment or not. But this provision is not applicable here since the 1973 payment was made well after the initial period of limitations had run (compare Bergenfeld v Midas Collections, 38 AD2d 939).

      . In view of the result we reach, we find no occasion to treat with whether Herbert Michelson’s 1973 note to the Roths amounted to a waiver under section 17-105 (subd 3, par a), since, in any event, there was no proof that the existence of these writings, by note and by check, had ever come to the attention of the Russos.


text:
    Malikah Ferrer, an Infant, by Jose Ferrer, Her Father and Natural Guardian, et al., Respondents, v Ben Harris et al., Appellants.
    Argued February 8, 1982;
    decided March 25, 1982

      POINTS OF COUNSEL

      C. Raymond Nelson, A. Alexander Pignato and Eugene A. Lieman for Ben Harris and another, appellants.
    I. There was not sufficient evidence to go to the jury on the issue of negligence as respects defendant Harris. (Lenti v Cohon, 16 NY2d 796; Brianzi v Crane Co., 196 App Div 58; Maloney v Kaplan, 233 NY 426; Polsky v New York Transp. Co., 96 App Div 613; Capell v New York Transp. Co., 150 App Div 723; Weber v City of New York, 17 NY2d 790; Wilson v Maiello, 34 AD2d 221.) II. The trial court erred in refusing to charge the law applicable to an emergency situation. (Rowlands v Parks, 2 NY2d 64; Rossman v La Grega, 28 NY2d 300; Acevedo v City of New York, 15 AD2d 899, 17 NY2d 843.)

      Michael Majewski and Joseph D. Ahearn for Hassan J. Javidan, appellant.
    I. As a matter of law, plaintiff’s complaint against defendant Javidan should be dismissed since all of plaintiff’s allegations and proof conclusively establish that the claimed negligence on the part of Javidan was not the proximate cause of plaintiff’s injuries, (Sheehan v City of New York, 40 NY2d 496; Margolin v Friedman, 43 NY2d 982; Naeris v New York Tel. Co., 6 AD2d 196, 5 NY2d 1009; Derdiarian v Felix Contr. Co., 51 NY2d 308; Rivera v City of New York, 11 NY2d 856; Martinez v Lazaroff, 48 NY2d 819; Ventricelli v Kinney System Rent A Car, 59 AD2d 869, 45 NY2d 950; Rider v Syracuse R. T. Ry. Co., 171 NY 139.) II. It was highly prejudicial for the trial court to allow infant plaintiff’s mother to testify, over objection, that she had always instructed both her daughters (including infant plaintiff) to look both ways before crossing the street. (Wooster v Broadway & Seventh Ave. R.R. Co., 72 Hun 197; Morgan v Robinson, 3 AD2d 216; Zucker v Whitridge, 205 NY 50; Halloran v Virginia Chems., 41 NY2d 386.) III. Defendants Ben Harris and Anna Harris were not entitled to an instruction that Ben Harris was faced with an emergency situation. (Rowlands v Parks, 2 NY2d 64; Facteau v Wenz, 78 AD2d 931; Acevedo v City of New York, 15 AD2d 899, 17 NY2d 843; Jones v National Biscuit Co., 29 AD2d 1033.)

      Anthony Gentile, Philip M. Damashek, Walter P. Roura and Lewis I. Wolf for Malikah Ferrer, respondent.
    I. There was sufficient evidence, taking the same most favorably to plaintiff, from which the jury could and did find (and from which the court below could and did affirm) that defendant Hassan J. Javidan had illegally double-parked his Mr. Softee ice cream truck; that infant plaintiff-respondent was on her way to make a purchase of ice cream from said truck when she was struck by the Harris vehicle, and that such double-parking was a proximate cause of Malikah Ferrer’s accident. (Wragge v Lizza Asphalt Constr. Co., 17 NY2d 313; Matter of Kornblum Metals Co. v Intsel Corp., 38 NY2d 376; Cohen v Hallmark Cards, 45 NY2d 493; Somersall v New York Tel. Co., 52 NY2d 157; Naeris v New York Tel. Co., 6 AD2d 196, 5 NY2d 1009; Giordano v Sheridan Maintenance Corp., 38 AD2d 552; Bishop v Hamad, 43 AD2d 805; O’Neill v City of Port Jervis, 253 NY 423; Weller v Consolidated Gas Co. of N. Y., 198 NY 98; Love v Clam Box, 35 Misc 2d 436.) II. The court below did not commit prejudicial error in affirming the trial court’s determination to overrule an objection to a question as to prior instructions given to the four and a half-year-old infant plaintiff and her eight-year-old sister who was crossing her at the time of the accident, as to how to cross a street. III. The jury’s determination that the vehicle of defendant Harris was being negligently operated should be sustained because the jury could reasonably infer that the driver Harris continuously had infant plaintiff under observation and yet failed to stop his car sooner, failed to blow his horn, failed to turn his vehicle away from infant plaintiff and was driving too close to the parked cars between which infant plaintiff was being watched coming; and because of such continuous observation by defendant Harris, the courts below properly concluded that there was no emergency to be charged. (Wragge v Lizza Asphalt Constr. Co., 17 NY2d 313; Matter of Kornblum Metals Co. v Intsel Corp., 38 NY2d 376; Cohen v Hallmark Cards, 45 NY2d 493; Snell v MVAIC, 34 AD2d 872.)
   OPINION OF THE COURT

Fuchsberg, J.

After 3:00 p.m. one sunny afternoon in May, then four-year-old Malikah Ferrer, in the company of her eight-year-old sister, was crossing a Bronx street from between two parked cars when she was struck by an automobile owned by the defendants Ben and Anna Harris and operated by the former. At the time, the girls were headed directly for the defendant Hassan Javidan’s brightly colored “Mister Softee” motor van, which from a double-parked position was tunefully drawing attention to its wares of frozen custard and ice cream.

The Harrises and Javidan now appeal separately from an order of the Appellate Division affirming a judgment entered on a jury verdict against both of them on young Malikah’s behalf in the sum of $200,000 with the respective liabilities apportioned under Dole v Dow Chem. Co. (30 NY2d 143) at 75% against the Harrises and 25% against Javidan., In the main, the questions these appellants now raise are whether a prima facie case was made out against each of them and whether, as to the Harrises, the trial court erred in refusing to instruct the jury on the effect of an emergency on the reasonableness of Ben Harris’ conduct. In addition, it is asserted that all the defendants were prejudiced by the admission of testimony that Malikah’s mother repeatedly would enjoin both her daughters “to look both ways and cross at the green and cross at the corner” and instilled in Malikah the idea that she was “never to cross by herself unless someone was with her”. For the reasons which follow, while we believe there was enough shown on which to send the case to the jury against all the defendants, since, in our view, the Harris defendants were entitled to a charge on the emergency doctrine, as to these defendants it is appropriate that there be a new trial. Should the Harrises be held liable again, the apportionment issue will also have to be determined de novo.

Turning first to the sufficiency of the proof, in the present posture of the case the facts, of course, must be taken most favorably to the successful plaintiff (Caprara v Chrysler Corp., 52 NY2d 114, 118). To that end, we first note that Walton Avenue, the scene of the occurrence, is a relatively narrow southbound one-way street, which, after allowing for parked vehicles along each curb, according to police and photographic proof would permit the traffic to flow either comfortably in one traveling lane or crowdedly in two. Between East 164th and East 161st Streets, Walton Avenue is unbroken by any intersecting street. Its east side is bordered by a public park and its west side by apartment houses, in one of which the Ferrer family lived. When the events which are our concern occurred, the “Mister Softee” truck had double-parked abreast of vehicles standing next to the west curb of Walton Avenue at a point some 300 feet south of 164th Street.

It was in this setting that Malikah and her sister, who had been at play in the park in the presence of their mother, began to cross toward the truck. For its part, for the southbound Harris vehicle to pass the point where the ice cream truck was obstructing the westernmost traveling lane, it, of necessity, could confinedly proceed only via the easterly traveling lane, in the process passing close to the row of parked cars on its right. It was these two lanes, the easternmost parking one and the easternmost traveling one, which children coming east to west from the park would have to traverse to reach the truck.

The record reveals ample evidence that Ben Harris knew the area, having worked nearby for years, and, as a result, was familiar with the fact that the combination of the park and apartment buildings meant that children could be expected to be about on a fine May day. More so, as he was to testify, on this very occasion, though he did not remember the ice cream van, he admitted noticing children on the sidewalk and at play when he was still in the area of the last intersection, that at East 164th Street. Indeed, though the maximum legal speed limit was 30 miles per hour, consistent with the caution the presence of children engendered, he claimed that, as' he came along, he was proceeding at 15 to 20 miles per hour. He also testified that he saw Malikah step off the sidewalk and run between the parked cars, in response to which he stopped his car within 4 feet, when, as he described it, the child ran into his door. It is basically on this version that the Harrises premise their contentions that their motion to dismiss and, when that failed, their request for a charge on emergency, each in turn should have been granted.

But the plaintiffs’ side of the case, though unable to produce any disinterested eyewitness to the operation of the Harris vehicle as it bore down on the point of collision, did not rest on the Harris story. First, they established that, though the driver saw the child as she was just stepping off the curb, he never blew his horn to alert her to his approach. Second, they called a witness, Carolyn Ford, who, while she had not observed the Harris car at an earlier point, was able to describe the impact as one at the front of the car, a version borne out both by an impression of a tire tread found on the child’s sneaker and medical proof that the injuries were not scientifically reconcilable with the kind of impact that Harris claimed had taken place. Moreover, the plaintiffs lay stress on the fact that, while the speed limit is 30 miles per hour, even a lesser speed is required when it is “reasonable and prudent under the condition and having regard to the actual potential hazards then existing” (New York City Traffic Regulations, § 60, subd [c]); in this case, given conceded awareness of the propinquity and proclivity of the children (see Prosser, Torts [4th ed], p 170; see, generally, Darting in Front of Automobile, Ann., 113 ALR 528) and the effect of the double-parked ice cream truck on the Harris driver’s maneuverability, plaintiffs argued that even 15 to 20 miles per hour was unreasonable.

Obviously, the determination of what was appropriate calls for the application of the proverbial and somewhat flexible reasonable man standard, one which a cross-section of lay persons may be thought to be especially qualified to gauge (see Conway v O’Brien, 111 F2d 611, 612 [Learned Hand, J.]). Perhaps it is the predominance of considerations of this character which in motor vehicle cases have allowed for more latitude in determining the appropriateness of their submission to a jury (see Pfaffenbach v White Plains Express Corp., 17 NY2d 132, 136 [“Modern experience suggests we can be less certain of the precision of our categories in this field of adjudication than we had confidently assumed a generation or so ago”]).

Nevertheless, while we therefore hold, as did the Appellate Division, that whether Ben Harris was negligent was a question of fact, it is more than conceivable that a jury could conclude that this defendant was faced with an emergency. For instance, it would be rational for the jury to have adopted a view of the evidence from which it concluded that traveling at 15 to 20 miles per hour was an adequate response to the prevailing circumstances and that the opportunity to learn of and react to the presence of Malikah was too brief and too unexpected to allow time to think of blowing the horn or to make a calculated and intelligent choice as to the best way to avoid or minimize the impending collision, be it by braking, acceleration or otherwise. Against such contingency, it was entitled to judicial guidance on the applicable law.

For, it is common sense and good law that, when one is confronted with a sudden and unexpected event or combination of events which leave little or no time for reflection or deliberate judgment, this itself may be a significant circumstance which, realistically as well as conceptually, should enter into the determination of the reasonableness of the choice of action pursued (see Rossman v La Grega, 28 NY2d 300; Wagner v International Ry. Co., 232 NY 176; Restatement, Torts 2d, § 296, subd [l]). This is not to say that an emergency automatically absolves one from liability for his conduct. The standard then still remains that of a reasonable man under the given circumstances, except that the circumstances have changed. Accordingly, the actor “may still be found to be negligent if, notwithstanding the emergency, the acts are found to be unreasonable” (Prosser, Torts [4th ed], p 169). Nor does the fact that the emergency action was reasonable insulate an actor from liability for prior tortious conduct that brought on the emergency (see 2 Harper and James, Torts, § 16.11, p 939).

We now come to the prima facie case against defendant Javidan. The two elements with which we are concerned on his phase of the case are negligence and proximate cause. The first of these presents no problem since the evidence that this appellant had violated section 81 (subd [c], par 2) of New York City’s Traffic Regulations, which interdicted the double-parking of the “Mister Softee” van (Somersall v New York Tel. Co., 52 NY2d 157, 166), was some evidence of negligence (see Long v Forest-Fehlhaber, 55 NY2d 154, 160).

The perception of proximate cause is hardly more difficult. Unlike Sheehan v City of New York (40 NY2d 496), on which this appellant largely relies, the vehicle had no right to be where it was at the time of the accident {id., p 502). It also takes no stretch of the imagination to appreciate that, but for the van’s unlawful double-parking, the Harris car would not have had to travel as close to the automobiles parked on the east side of the street, thus affording its operator an opportunity for a more wide-angled, more distant and earlier view of the child. More directly, absent the van, the westerly traveling lane would have been an unblocked avenue into which Harris might have maneuvered to avoid the accident. In short, to say the least, the connection between the disobedience of the traffic regulation and the happening of the accident was logical and immediate enough to have permitted the jury to find that Javidan’s negligence was a substantial proximate cause of the event which.produced the injury (Restatement, Torts 2d, § 431). This also makes it unnecessary for us to reach or consider respondent’s “blocked vision” (cf. Naeris v New York Tel. Co., 5 NY2d 1009, affg 6 AD2d 196) or “defective egress” (cf. Bishop v Hamad, 43 AD2d 805) contentions on proximate cause, all the more so since the Trial Judge did not send the case to the jury on either of these theories.

Finally, since there is to be a new trial as to the Harrises’ liability and, as hereináfter indicated, possibly on the apportionment of liability, we comment briefly on the evidentiary point arising out of the admission of testimony as to the safety practices the mother had instructed her young daughters to follow on crossing a street. Though less than fully preserved, appellants’ assignment of error on this account for the most part is grounded on older cases which hold either that it is “not competent for a plaintiff to give evidence that the person by whom the alleged negligent act was committed had previously committed [others]” (Wooster v Broadway & Seventh Ave. R.R. Co., 72 Hun 197, 198) or that the potential for distraction to which such “collateral issues” would lead militate against their introduction (see Zucker v Whitridge, 205 NY 50, 65-66).

In recent years, however, we have indicated support for less dogmatic adherence to the policy so enunciated, most particularly where it is established in limine that there are a sufficient number of instances of the repetitive conduct to give reasonable assurance that these will prove a persistent habit or regular usage by one in control of the circumstances in which it is employed (Halloran v Virginia Chems., 41 NY2d 386, 392-393). Here no such showing was made or attempted. To the contrary, plaintiff, abjuring any intention to prove “prior similar conduct”, asserts a desire to explore the “knowledge and experience of the infant”. Further, since the quality of the parental supervision was not imputable to the child (see General Obligations Law, § 3-111) and the statements the mother made were not proof that the child had acted on them, at a new trial objection to their admission should be sustained.

For all these reasons, we now conclude that the order of the Appellate Division should be modified, with costs to defendants Harris against plaintiff and costs to the plaintiff against defendant Javidan, to effect the following determinations:

1. Ferrer’s judgment against Javidan should be affirmed.

2. The judgment of Ferrer against Ben and Anna Harris should be reversed on the issue of their liability and the case against them remitted to Supreme Court, New York County, for a new trial on that issue alone.

3. Treating the recital in the judgment of Supreme Court as to apportionment between defendants Javidan and Harris as though it were a direction, in the event the Harris defendants are found liable again after a new trial, and only then, the determination on which the direction for apportionment is based, predicated as it was in part-pn the verdict against Harris reached without consideration of the proof of emergency, should also be vacated and a new trial granted as to both Javidan and Harris on the issue of the apportionment of the $200,000 damage verdict.

4. There should be no new trial on the amount of Ferrer’s damages.

5. Once the defendant Javidan has fully satisfied the judgment, the new trial may proceed on Javidan’s initiative under his article 14 claim for contribution against the Harris defendants alone.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Meyer concur.

Order modified, with costs to defendants Harris against plaintiff and costs to plaintiff against defendant Javidan, and case remitted to Supreme Court, New York County, for a new trial in accordance with the opinion herein and, as so modified, affirmed.

      . While Jose Ferrer, Malikah’s father and natural guardian, originally had joined a personal cause of action for medical expenses and loss of services, the jury did not report a verdict on his action. Thereafter, on his motion, in which he recited that he had received reimbursement for his medical expenses under no-fault, the judgment was “corrected” to record a verdict against him in his personal capacity. Concordantly, he took no appeal to the Appellate Division.

      . The Harris appeal is here as a matter of right, Justice J. Robert Lynch having dissented as to these defendants essentially on the ground that it was reversible legal error not to have given the requested emergency charge (CPLR 5601, subd [a], par [i]). Though the Appellate Division unanimously affirmed without opinion as to Javidan, his appeal is here by leave of that court (CPLR 5602, subd [a], par 1, cl [i]).

      . According to figures based on tests performed by the US Bureau of Public Roads, under normal road conditions a motor vehicle proceeding at 20 miles per hour travels 30 feet per second. The minimum stopping distance of a vehicle traveling at that speed is 44 feet, including 22 feet covered during reaction time and 22 feet after the brakes are fully applied (How to Drive, published by the American Automobile Association [1978], p 78).

      . As Judge Cardozo put it in a somewhat different context, “ ‘Errors of Judgment’, however, would not count against him, if they resulted ‘from the excitement and confusion of the moment’ (Corbin v. Philadelphia, 195 Penn. St. 461, 472). The reason that was exacted of him was not the reason of the morrow. It was reason fitted and proportioned to the time and the event” (Wagner v International Ry. Co., supra, at p 182).


text:
    The People of the State of New York, Respondent, v Joseph Malloy, Appellant.
    Argued February 15, 1982;
    decided March 30, 1982

      POINTS OF COUNSEL

      Donald. H. Zuckerman for appellant.
    I. As the hearing court’s determination that the in-court identification of appellant by the complainants was untainted by the blatantly suggestive third and fourth photo arrays is at variance with the evidence adduced at that hearing, this court should review that determination and, upon such review, conclude that the tainted identification testimony denied appellant due process (US Const, 14th Amdt; NY Const, art I, § 6). (Gilbert v California, 388 US 263; United States v Wade, 388 US 218; Simmons v United States, 390 US 377; People v Fuller, 71 AD2d 589; Neil v Biggers, 409 US 188; Manson v Brathwaite, 432 US 98; People v Ballott, 20 NY2d 600.) II. Appellant was denied due process when, in this closely contested identification case, the court, having replied to the jury’s request for clarification of its “reasonable doubt” charge merely by rereading the original charge, proceeded, after being advised of a deadlock, to give an Allen charge (US Const, 14th Amdt; NY Const, art I, § 6). (People v Gonzalez, 293 NY 259; People v Gezzo, 307 NY 385; People v Conigliaro, 20 AD2d 930; People v Miller, 6 NY2d 152.)

      Mario Merola, District Attorney (Stuart L. Sanders and Peter D. Coddington of counsel), for respondent.
    I. Appellant was proven guilty beyond a reasonable doubt. (People v Washington, 51 NY2d 214; People v Regina, 19 NY2d 65.) II. The identifications of appellant by the three victims of the Elko hijacking were properly admitted into evidence. (People v Adams, 53 NY2d 241; People v Dickerson, 50 NY2d 937; People v Whisby, 48 NY2d 834; People v Burrows, 46 NY2d 957; People v Peterson, 40 NY2d 1014; People v Freeland, 36 NY2d 518; People v Zabrocky, 26 NY2d 530; United States v Wade, 388 US 218; People v Ballott, 20 NY2d 600; Manson v Brathwaite, 432 US 98.) III. The trial court’s supplementary charges were proper. (Allen v United States, 164 US 492; People v Jones, 27 NY2d 222; People v Radcliffe, 232 NY 249; People v Barker, 153 NY 111; People v Guidici, 100 NY 503; People v Johnson, 46 AD2d 123; People v Bell, 45 AD2d 362; People v Harding, 44 AD2d 800; People v Miller, 6 NY2d 152; People v Gonzalez, 293 NY 259.)
   OPINION OF THE COURT

Chief Judge Cooke.

The obligation of the trial court to advise the jury on the law includes the duty to respond meaningfully to requests for further instructions, which may require asking the jury to be more specific about their difficulty. Where, however, after considerable deliberation, the jury requests clarification concerning the meaning of reasonable doubt and the original instruction is adequate, it is not error for the Trial Judge, as he did here, to respond to the request by rereading that instruction. Nor can it be said on this record that the witnesses’ in-court identifications had no bases independent of the earlier suggestive identification procedures. The order of the Appellate Division affirming defendant’s conviction therefore should be affirmed.

Defendant was convicted after a jury trial of robbery in the first degree and unlawful imprisonment in the second degree. The charges arose out of the armed hijacking of a fur truck on March 30, 1978.

Victor Licciardi, the driver, and Dean and Jay Kopp were transporting the furs for their employer, Elko Processors, Inc., from Manhattan to a warehouse in Bronx County when they noticed a blue van closely following the truck. As the van pulled alongside, Jay Kopp saw the van’s driver, later identified as defendant, pointing a gun at them. The van eventually forced the truck to a stop. Defendant ordered Licciardi to exit the van at gunpoint. Defendant, aided by his two accomplices, also persuaded Dean and Jay Kopp to leave the truck. The Kopp brothers were handcuffed and made to lie face down in the back of the van. Licciardi, meanwhile, was questioned by defendant concerning the truck’s locks and alarm system and then was forced to join the others in the van. Licciardi observed defendant board the fur truck. The three captives were driven to Nassau County and released. They each described defendant to the Nassau County police.

During the New York City Police Department’s investigation, the victims were interviewed further and participated in four photographic identification procedures between April 3 and May 17, 1978. The suppression court found the first two procedures to have been fair and non-suggestive, but determined that the third and fourth displays were highly suggestive, having consisted in the main of surveillance pictures of defendant. The court nonetheless found that the three witnesses had independent bases for the subsequent lineup identifications and any in-court identifications to be made at trial. Defendant’s motion to suppress the lineup and in-court identifications, therefore, was denied.

Defendant was convicted after trial. On appeal, the Appellate Division, by a divided court, affirmed. The dissenting Justice disagreed with the majority that Dean and Jay Kopp had independent bases for the identifications made after viewing the suggestive photograph arrays.

On this appeal, defendant again challenges the reliability of the witnesses’ in-court identifications, contending that the procedures found to have been suggestive produced an indelible taint requiring suppression. Defendant also maintains that the trial court committed reversible error when it responded to the jury’s request for further clarification of the term “reasonable doubt” by rereading the original charge. Neither argument is persuasive.

Disposing of defendant’s first contention, this court cannot say that the finding of an independent basis for an in-court identification by each witness was erroneous as a matter of law. The inquiry necessarily is a factual one (see People v Dickerson, 50 NY2d 937; People v Whisby, 48 NY2d 834), involving an evaluation of the totality of. circumstances (see Manson v Brathwaite, 432 US 98; Neil v Biggers, 409 US 188; Simmons v United States, 390 US 377). As such, the determination that there existed an independent source for the subsequent identifications, left undisturbed by the Appellate Division, is beyond this court’s power of review if supported by the record (People v Adams, 53 NY2d 241, 248; People v Thomas, 51 NY2d 466, 475; People v Burrows, 46 NY2d 957, 958; People v Peterson, 40 NY2d 1014, 1015). As can be seen, such support exists.

Similarly unavailing is defendant’s claim concerning the inadequacy of the trial court’s supplemental charge to the jury. In its original charge, the court made clear that the People have the burden of proving defendant’s guilt beyond a reasonable doubt. In explaining that concept, the court stated that such doubt is “not a mere whim or guess or surmise. Nor is it a feeling that an accused may not be guilty. Nor is it proof beyond * * * all doubt or proof to a mathematical certainty, or scientific certainty. * * * It’s a doubt for which you can conscientiously express a reason, based on logic and the credible evidence or lack of credible evidence.” Defendant’s objections to certain portions of that charge were overruled. In the afternoon of the second day of deliberations, the jury requested a reading of the cross-examination of Licciardi, all the testimony of the three detectives and “[cjlarification of the term ‘beyond a reasonable doubt.’ ” The court asked the jury to consider making the request for testimony more specific.

While the jurors were considering their request, the Judge informed both counsel that he thought it best to give the original charge on reasonable doubt. Defendant renewed his previous objections with no success. The jury then returned and gave a more specific request for the trial testimony and “[fjurther clarification of the term ‘beyond a reasonable doubt.’ ” Following the rereading of the testimony, the court informed the jury that the best definition of reasonable doubt was contained in the original charge, which was then repeated.

The jury resumed deliberations at 3:40 p.m. About four hours later, the jury reported a deadlock of 10 votes to 2 against defendant on the identification issue. Defendant’s motion for a mistrial was denied. The jury was summoned and the court gave a special supplemental instruction pursuant to Allen v United States (164 US 492). At about 8:45 p.m., following a dinner break, the jury resumed deliberations; a verdict of guilty was reached at 9:45 p.m.

Defendant maintains, as he did at trial, that merely rereading the original charge was an inadequate response to the jury’s request for clarification of the concept of reasonable doubt. In defendant’s view, that error rendered the subsequent Allen charge coercive. We cannot agree.

It has long been the law in this State that the trial court, in responding to jury inquiries, must give meaningful supplemental instructions. In the seminal case, People v Gonzalez (293 NY 259, 262), this court unequivocally stated that section 427 of the Code of Criminal Procedure, the predecessor to CPL 310.30, “leaves to the trial court no discretion whatever as to whether or not to answer a proper question from the jury, even though the original charge contains a correct answer to that same question.” There, the jury made a specific inquiry concerning the critical element of premeditation, requesting aid in understanding the application of the law to the facts. The Trial Judge responded that he could not answer the question in the form tendered, and offered only to reread any portion of the charge the jury might request. As the Court of Appeals observed, the response “was no less than a refusal to reinstruct them as to an applicable proposition of law, a refusal to clarify their doubts” (293 NY, at p 261).

The basic propositions of Gonzalez concerning the trial court’s obligation to advise the jury adequately have been consistently reaffirmed (see People v Miller, 6 NY2d 152; People v Gezzo, 307 NY 385; People v Lupo, 305 NY 448; People v Flynn, 290 NY 220). This court, however, has never adopted a per se rule concerning the adequacy of a court’s response or prohibited in every case the rereading of the original charge. It is only “ ‘where the court fails to give information requested upon a vital point’” that an omission cannot be ignored (People v Gonzalez, 293 NY, at p 263, supra, quoting dissenting opn of Lehman, Ch. J., People v Cooke, 292 NY 185, 193). The error is not so much that an instruction is inadequate in some legal respect, but that the jury, misled by or not comprehending the original charge, remains perplexed about the elements of the crime or the application of the law to the facts. Where the jury expresses no confusion and the original charge is clear, however, a different charge may well be simply an exercise in semantics and could itself create the confusion sought to be avoided.

The trial court, required under CPL 310.30 to “give such requested information or instruction as the court deems proper”, is vested with some measure of discretion in framing its response and is in the best position to evaluate the jury’s request in the first instance. But that discretion is circumscribed, as under the prior code provision, by the requirement that the court respond meaningfully to the jury’s request for further instruction or information (see People v Gonzalez, supra; People v Duncan, 46 NY2d 74, 79, cert den 442 US 910). The factors to be evaluated are the form of the jury’s question, which may have to be clarified before it can be answered, the particular issue of which inquiry is made, the supplemental instruction actually given and the presence or absence of prejudice to the defendant (see People v La Marca, 3 NY2d 452; People v Jackson, 20 NY2d 440, cert den 391 US 928).

Given these principles, the supplemental instruction charged in this case was not inadequate in any meaningful sense. The concept of reasonable doubt itself defies precise definition. Of necessity, it must be described in general terms that will convey simply to the jury “the difference between a reasonable doubt and one which is based on a whim, sympathy or some other vague reason” (People v Jones, 27 NY2d 222, 227). When the jury requests further instructions on that legal point, such request does not necessarily import that the jury was perplexed or misled by the original charge. Rather, the jury simply may wish to have that critical concept refreshed in their minds or explained in isolation, without the distractions of the remaining portions of the full charge.

The original charge given in this case was neither confusing nor inaccurate (see People v Jones, supra). In seeking further instructions after extensive deliberations, the jury requested, among other things, clarification of the term “beyond a reasonable doubt.” In determining the most appropriate way to handle that request, the court took the view that the original charge could be made no clearer and that any attempt to alter it in light of the extensive deliberations already undertaken would only generate confusion. Although the better practice would have been to inquire of the jury what was unclear to them, they gave no indication after the original charge was repeated that their concern had not been satisfied. Moreover, unlike the premeditation issue involved in People v Gonzalez (293 NY 259, supra), the definition of reasonable doubt is an area of instruction in which amplification often leads to error (see, e.g., People v Garcia, 54 Cal App 3d 61) and in which, therefore, the exercise of discretion to repeat rather than expound upon an original proper instruction should be upheld. Given the subject of inquiry and the adequacy of the charge, it cannot be said that the court’s exercise of discretion was improper.

This is not to say that a mere rereading of an original charge will in every case be the appropriate course to follow. Indeed, if the jury subsequently expresses the need for further instructions, it may well constitute error simply to repeat the charge, for then it may be obvious that the jurors have been left without adequate guidance. This case, however, presents no such showing of error.

Nor was the court’s final supplemental charge to the jury erroneous. As defendant concedes on this appeal, the Allen charge itself was a brief, balanced instruction (cf. People v Ali, 47 NY2d 920, affg 65 AD2d 513). That balance was not upset by the previous charge on reasonable doubt.

Accordingly, the order of the Appellate Division should be affirmed.

Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Order affirmed.

      . The charge, as it appears in the transcript, included the phrase, “nor is it proof beyond a reasonable doubt” just prior to the phrase beyond “all doubt”. This apparent misspeaking was not repeated in the supplemental charge.

      . Defendant does not strenuously urge that the rulings in this regard were erroneous. Nor does this court find them so.

      . The supplemental charge did not contain the misstatement noted in footnote 1, supra.