text:
    The People of the State of New York, Appellant, v. Edwin W. Ashby, Respondent.
    Argued May 26, 1960;
    decided July 8, 1960.

      Bernard Tompkins and Wilfred R. Caron for appellant.
    I. Defendant’s guilt was established beyond a reasonable doubt. His defense of recantation was specious and invalid as a matter of law. (People v. Ezaugi, 2 N Y 2d 439; United States v. Norris, 300 U. S. 564; People v. Gillette, 126 App. Div. 665; United States v. Hirsch, 136 F. 2d 976; Llanos-Senarillos v. United States, 177 F. 2d 164; Beckanstin v. United States, 232 F. 2d 1; United States v. Parker, 244 F. 2d 943; United States v. Geller, 154 F. Supp. 727; United States v. Allen, 131 F. Supp. 323.) II. The cross-examination of Bareika was proper rebuttal of misleading defense charges, implications and testimony. Tompkins’ testimony was proper. (United States v. Sing Kee, 250 F. 2d 236; People v. Cummins, 209 N. Y. 283; People v. Leonardo, 199 N. Y. 432; People v. Davis, 183 App. Div. 274, 226 N. Y. 577; People v. Meadows, 136 App. Div. 226, 199 N. Y. 1; Grunewald v. United States, 353 U. S. 391; United States v. Tomaiolo, 249 F. 2d 683; People v. Luckman, 254 App. Div. 694; People v. Michor, 226 App. Div. 569; People v. Jelke, 1 N Y 2d 321; People v. Fay, 270 App. Div. 261, 296 N. Y. 510, 332 U. S. 261; Michelson v. United States, 335 U. S. 469; United States v. Lowe, 234 F. 2d 919, 352 U. S. 838.) III. The cross-examination of Bareika, even if error, did not prejudice any of defendant’s substantial rights. (United States v. Brown, 79 F. 2d 321.) IV. Since falsity is not an element to be alleged or proved on the second count of the indictment (Penal Law, § 1627-a), Bareika’s testimony as to alleged truth was completely immaterial and did not affect that count. (People v. Lillis, 3 A D 2d 44.)

      N. Le Van Haver, Paul Rosen and John E. Egan for respondent.
    I. The improper cross-examination of the defense witness Bareika as to his prior claims of privilege constituted reversible error. (Grunewald v. United States, 353 U. S. 391; United States v. Tomaiolo, 249 F. 2d 683; People v. Luckman, 254 App. Div. 694.) II. The improper receipt in evidence of extensive proof as to excessive sales prices charged by Buckley for equipment sold by him to Ulster County communities was not only highly prejudicial; it, too, constituted reversible error. III. It was reversible error to deny the defense motions for a directed verdict of acquittal because of the complete absence of legal proof that a quorum was present on the occasions when Ashby testified before the Grand Jury. (People v. Herrmans, 69 Misc. 303.) IV. The trial court committed reversible error in its rulings on the defense of recantation. (King v. Jones, 1 Peake N. P. 51; People v. Gillette, 126 App. Div. 665; People v. Ezaugi, 2 N Y 2d 439.) V. The Appellate Division properly reversed the judgment of conviction because, on the record, it could have gone further and dismissed the indictment on constitutional grounds. (People v. Ry an, 6 N Y 2d 214; People v. De Feo, 284 App. Div. 622.) VI. The trial was so replete with error that the reversal by the court below was fully justified. (People v. Marendi, 213 N. Y. 600; People v. Elbroch, 250 App. Div. 583.)
   Chief Judge Desmond.

Defendant, because of testimony he gave before a Grand Jury investigating alleged corruption of public officers and employees in Ulster County, was convicted of two crimes of perjury, second degree. One such alleged crime consisted of the giving by defendant on October 2, 1958 of testimony which he afterwards (October 27, 1958) recanted and denied before the same Grand Jury. The first indictment count on which defendant was convicted charged that defendant’s October 2, 1958 Grand Jury testimony was false and, since defendant himself afterwards so labeled it and attempted to purge himself as to it, the trial jury’s finding of his guilt on that count was entirely justified. The second count of the indictment was drawn under sections 1627 and 1627-a of the Penal Law which permit perjury second degree to be proven by the showing of contradictory sworn statements without proof as to which of the statements was true. Since defendant’s evidence given at his second Grand Jury appearance was quite inconsistent with his October 2 statements to that body, the contradictions between the two versions justified the finding of guilt on the second count, also.

The Appellate Division’s reversal of this judgment of conviction and grant of a new trial was ‘ on the law, the facts being affirmed This form of order necessarily meant that the new trial was being directed not because of any weighing of evidence and not as matter of discretion or in the interest of justice but solely because of an error of law considered by the Appellate Division to require reversal (see People v. Cohen, 5 N Y 2d 282, 292). The alleged error is described and explained in the Appellate Division’s opinion. To it we now turn.

The Appellate Division held that it was reversible error for the Trial Justice to permit an important defense witness (Bareika) to be cross-examined at the trial as to his having previously refused, on the ground that the answers would incriminate him, to answer questions put to him by the State Commissioner of Investigation as to the same matters to which he testified on this trial. The Appellate Division, citing Halperin v. United States (353 U. S. 391), held that the prior exercise by the witness of his undoubted right to refuse to answer could not validly be used at this trial to destroy his credibility, and that such use was, especially because of the importance to the defense of Bareika’s testimony, so serious an error as to require reversal. No one will now question the generality expressed in Halperin v. United States (supra) that a citizen’s assertion of his constitutional right to refuse to incriminate himself cannot afterwards be the basis of an attack on his credibility. But, as we shall show, the demonstration by the People at this trial that witness Bareika had previously made use of the privilege in another investigation of the same matters was, under the circumstances of this trial, proper and justified. Letting this trial jury know that Bareika had earlier declined to answer was proper—indeed, necessary—because the defense itself had made an issue at the trial of Bareika’s willingness to explain these occurrences and had attempted to show by Bareika himself that he had been ready to talk but that the prosecutor, to fob off a complete investigation, had failed to use him as a witness.

Beginning with his opening statement to the jury, defendant’s counsel persistently charged that the prosecution ‘ ' never made any attempt to find out” the true facts. “ He didn’t try and he didn’t want to know ”, said counsel. Defense counsel asked the trial jury in that opening speech whether it did not think that had the Grand Jury and prosecutor been interested in discovering the truth " inquiry would have been made ” from Bareika and others. When it came to presenting the defense, the first witness called for defendant was attorney Bosen who had been retained by defendant and had talked with the prosecutor on defendant’s behalf after the latter’s first, or October 2, Grand Jury appearance. Attorney Eosen’s trial testimony again put before the jury the contention of the defense that the prosecutor, despite suggestions by the attorney, had failed to check the underlying facts with various knowledgeable persons, including this same Bareika. It was in this setting that Barieka himself was called to the stand a little later as a witness for defendant. After preliminary questions had been answered, defense counsel showed by Bareika that he had been subpoenaed to the trial by the prosecution. He was then asked by the defense attorney whether he had “ been available as a witness ”. The prosecutor conceded on the record that Bareika had been served with a subpoena but had not been called as a trial witness. It could not have come as a surprise to anyone that the prosecutor when he began his cross-examination of Bareika asked him: Have you always been ready to testify fully and completely about these transactions? ” The People, obviously, were taking the opportunity thus presented to explain why the prosecution had refrained from calling Bareika before the Grand Jury or to the witness stand and to refute the express and repeated defense charge that the prosecutor had, to conceal the truth, kept Bareika out of the case. The witness carefully answered: “ I have been ready to testify in this Court.” Of course he bad — in the sense that he had appeared in response to the subpoena. But that did not decide the issue already tendered to the jury by the defense. The People had a right under the circumstances to show and the trial jury had a right to know that Bareika was no willing witness, eager to tell the whole truth but thwarted by the tactics of the prosecution. The People properly proved by cross-examination of Bareika over strenuous defense objection that, when questioned by the State Commissioner of Investigation (or one of his staff) about these same matters, Bareika had “ some forty or fifty or sixty times ” refused to answer on the ground that his answers would tend to incriminate him.

The defense complains that undue emphasis was put on the matter of Bareika’s former exercise of his privilege by the. allowance of protracted cross-examination of Bareika on this subject. But the issue of Bareika’s alleged willingness to talk and the prosecutor’s refusal to let him had been put prominently into the case by the defense and the issue had to be presented fully to the jury. Defendant had “ opened the door” to the inquiry and the prosecution moved in (People v. Meadows, 136 App. Div. 226, 237, 238, affd. 199 N. Y. 1, 9; People v. Cummins, 209 N. Y. 283, 297). A decision precisely in point is United States v. Sing Kee (250 F. 2d 236, 240, cert, denied 355 U. S. 954). The Sing Kee opinion contains a convincing argument for the correctness of the People’s position here and we should follow it.

Defendant says that the prejudice resulting from the disclosure that Bareika had refused to answer during the earlier investigation was increased by the admission of testimony given by the prosecutor himself that Bareika had been represented at that earlier investigation by an attorney, all of whose clients “refused to testify before the Grand Jury and claimed their immunity.” Under ordinary circumstances, such a statement would have been most improper but in the contest of this trial it was merely a part of the People’s answer to the defense charge of suppression of the available testimony of an allegedly ready and co-operative witness.

Since this reversal was ordered because of this alleged error only, the Appellate Division did not consider other errors alleged by defendant. One only of those other points need be mentioned. Note should be taken of defendant’s argument that the trial court’s charge to the jury was erroneous as depriving him of the benefits of his recantation. The jury was instructed that, even if defendant had sworn falsely on October 2, he would be entitled to an acquittal if the jury believed that after October 2 he “went in before the Grand Jury voluntarily, promptly, and recanted; that his second story was true; that the Grand Jury did not know, was not misled or not deceived, and he did not find out that the Grand Jury did not believe his testimony or was not deceived.” That charge was correct under the leading case, People v. Ezaugi (2 N Y 2d 439).

There may have been some unfairness in allowing defendant to come back before the Grand Jury for recantation purposes and then charging him with perjury as to both occasions, but we see no error of law in it or in the Trial Judge’s treatment of it.

The order should be reversed and the judgment of conviction reinstated.

Judges Dye, Fuld, Frobssel, Van Voorhis and Burke concur; Judge Foster taking no part.

Order reversed and judgment of the Supreme Court, Ulster County, reinstated.


source: Caselaw Access Project

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

license: Public Domain

text:
    In the Matter of the Probate of the Will of Frank Honigman, Deceased. Frank F. Honigman et al., Respondents; Florence Honigman, Appellant.
    Argued May 24, 1960;
    decided July 8, 1960.

      John P. McGrath and Leonard M. Leiman for appellant.
    I. The jury, upon an abundance of evidence, found that the will was motivated by supposed facts having no existence except in decedent’s perverted imagination. In setting aside this verdict of the jury, the Appellate Division usurped the jury’s function, acting beyond its power and in complete disregard of the evidence. (American Seamen’s Friend Soc. v. Hopper, 33 N. Y. 619; Matter of Gannon, 2 Misc. 329,139 N. Y. 654; Matter of Heaton, 224 N. Y. 22; Dobie v. Armstrong, 160 N. Y. 584; Matter of Nicholas, 216 App. Div. 399, 244 N. Y. 531; Blum v. Fresh Grown Preserve Corp., 292 N. Y. 241; Longacre v. Yonkers R. R. Co., 236 N. Y. 119; Hayden v. New York Ry. Co., 233 N. Y. 34; Boyd v. Boyd, 252 N. Y. 422; Flamer v. City of Yonkers, 309 N. Y. 114; Kelly v. Watson Elevator Co., 309 N. Y. 49.) II. The Surrogate did not commit reversible error in overruling proponents’ objection under section 347 of the Civil Practice Act. III. Proponents waived their objection under section 347. (Nay v. Curley, 113 N. Y. 575.) IV. Assuming arguendo that there was error, it was not prejudicial. (Matter of Gannon, 2 Misc. 329, 139 N. Y. 654.) V. The Surrogate erred in excluding the proffered testimony of Father Heitz on the ground, of privilege. (People v. Gates, 13 Wend. 311.)

      Howard F. Cerny, William A. Schauer and George W. Herz for George Hoerschelman, respondent.
    I. The Appellate Division’s reversal of the Surrogate’s decree on the grounds that there was a factual basis for decedent’s belief (and therefore; no delusion), and that the Surrogate was thereby required as; a matter of law to direct a verdict for the proponents on the framed issue of testamentary capacity should be affirmed. (Matter of White, 121 N. Y. 406; Thompson v. Quimby, 2 Bradf. 449; Matter of Bonard, 16 Abb. Prac. 128; Keeler v. Keeler, 51 Hun 636; Matter of Brush, 35 Misc. 689;, Matter of Lang,
      9 Misc. 521; Matter of O’Dea, 84 Hun 591; Matter of Johnson, 7 Misc. 220; Dobie v. Armstrong, 160 N. Y. 584; Matter of Hargrove, 262 App. Div. 202, 288 N. Y. 604; Matter of Nicholas, 216 App. Div. 399, 244 N. Y. 531, 244 N. Y. 614; Matter of Stern, 235 App. Div. 60, 261 N. Y. 617; Matter of Brown, 171 Misc. 1008; Matter of Kimball, 156 Misc. 338; Clapp v. Fullerton, 34 N. Y. 190; Coit v. Patchen, 77 N. Y. 533; Matter of McKean, 31 Misc. 703; Phillips v. Chater, 1 Dem. 533.) II. Assuming arguendo that the court finds decedent’s belief was a delusion, the finding of the Appellate Division that there were other good and sufficient reasons for the testamentary disposition should be affirmed. (Matter of Nicholas, 216 App. Div. 399, 244 N. Y. 531; Dobie v. Armstrong, 160 N. Y. 584; Matter of White, 121 N. Y. 406; Coit v. Patchen, 77 N. Y. 533; Matter of Iredale, 53 App. Div. 45; Matter of Gannon, 2 Misc. 329, 139 N. Y. 654; Matter of Heaton, 224 N. Y. 22; Matter of Evans, 37 Misc. 337, 81 App. Div. 636; Matter of Barlow, 180 App. Div. 860; Matter of Bonard, 16 Abb. Prac. 128; Hartwell v. McMaster, 4 Redf. 389; La Bau v. Vanderbilt, 3 Redf. 384; Matter of Dunn, 184 App. Div. 386; Matter of Thompson, 146 App. Div. 602.) III. The sanctity surrounding testamentary instruments and fundamental principles of long standing concerning wills and their validity must be protected by requiring clear and convincing evidence as to all elements of a delusion. IV. The Surrogate committed error in allowing contestant, over proponents’ objections, to testify to transactions and communications with decedent, and such error was prejudicial. (de Laurent v. Townsend, 243 N. Y. 130; Potts v. Mayer, 86 N. Y. 302; Minns v. Crossman, 118 Misc. 70; Nay v. Curley, 113 N. Y. 575; Martin v. Hillen, 142 N. Y. 140; Motz v. Motz, 85 App. Div. 4.) V. The Surrogate’s Court properly excluded the testimony of Father Heitz concerning conversations between decedent and himself. (Westover v. Aetna Life Ins. Co., 99 N. Y. 56; Matter of Swenson, 183 Minn. 602; Reutkemeier v. Nolte, 179 Iowa 342; People v. Gates, 13 Wend. 311; Mullen v. United States, 263 F. 2d 275; People v. Shapiro, 308 N, Y. 453.)

      Frank M. Nicolosi and Maurice J. Giaimo for Frank F. Honigman, respondent.
    I. The evidence of the contestant utterly failed to prove that decedent was suffering from an insane delusion. The Appellate Division was warranted in reversing the decree of the Surrogate’s Court and directing the entry of a decree admitting the will to prohate. (Matter of White, 121 N. Y. 406; Matter of Hargrove, 262,App. Div. 202, 288 N. Y. 604; Dobie v. Armstrong, 160 N. Y. 584; Clapp v. Fullerton, 34 N. Y. 190; Jackson v. Jackson, 39 N. Y. 153; Matter of Stern, 235 App. Div. 60.) II. There were other good and sufficient reasons in the record for the testamentary dispositions made by decedent. (Matter of Nicholas, 216 App. Div. 399, 244 N. Y. 531; Matter of Heaton, 224 hi. Y. 22.) III. The testimony of the contestant was not admissible under section 347 of the Civil Practice Act. (Matter of Blaine, 143 App. Div. 687; Potts v. Mayer, 86 N. Y. 302; Matter of Manders, 232 App. Div. 784 ; Hartig v. Hartig, 147 App. Div. 6; Matter of Case, 214 N. Y. 199.) IV. The Surrogate did not err in excluding the testimony of Father Heitz.

      Vincent F. Naro, special guardian for infants, respondent.
    I. The contestant’s evidence failed to establish that decedent lacked testamentary capacity at the time he executed the offered will and the AppeHate Division was justified in reversing the decree of the Surrogate’s Court and admitting the will to probate. (Matter of White, 121 N. Y. 406; Clapp v. Fullerton, 34 N. Y. 190; Dobie v. Armstrong, 160 N. Y. 584; Matter of Stern, 235 App. Div. 60; Matter of Nicholas, 216 App. Div. 399.) II. The testimony of Florence Honigman was not admissible under section 347 of the Civil Practice Act. III. The Surrogate did not err in excluding the testimony of Father Heitz on the ground of privilege.
   Dye, J.

Frank Honigman died May 4, 1956, survived by his wife, Florence. By a purported last will and testament, executed April 3, 1956, just one month before his death, he gave $5,000 to each of three named grandnieces, and cut off his wife with a life use of her minimum statutory share plus $2,500, with direction to pay the principal upon her death to his surviving brothers and sisters and to the descendants of any predeceased brother or sister, per stirpes. The remaining one half of his estate was bequeathed in equal shares to his surviving brothers and sisters and to the descendants of any predeceased brother or sister, per stirpes, some of whom resided in Germany.

When the will was offered for probate in Surrogate’s Court, Queens County, the widow Florence filed objections. A trial was had on framed issues, only one of which survived for determination by the jury, namely: “At the time of the execution of the paper offered for probate was the said Frank Honigman of sound and disposing mind and memory? ” The jury answered in the negative, and the Surrogate then made a decree denying probate to the will.

Upon an appeal to the Appellate Division, Second Department, the Surrogate’s decree was reversed upon the law and the facts, and probate was directed. Inconsistent findings of fact were reversed and new findings substituted.

We read this record as containing more than enough competent proof to warrant submitting to the jury the issue of decedent’s testamentary capacity. By the same token the proof amply supports the jury findings, implicit in the verdict, that the testator, at the time he made his will, was suffering from an unwarranted and insane delusion that his wife was unfaithful to him, which condition affected the disposition made in the will. The record is replete with testimony, supplied by a large number of disinterested persons, that for quite some time before his death the testator had publicly and repeatedly told friends and strangers alike that he believed his wife was unfaithful, often using obscene and abusive language. Such manifestations of suspicion were quite unaccountable, coming as they did after nearly 40 years of a childless yet, to all outward appearances, a congenial and harmonious marriage, which had begun in 1916. During the intervening time they had worked together in the successful management, operation and ownership of various restaurants, bars and grills and, by their joint efforts of thrift and industry, had accumulated the substantial fortune now at stake.

The decedent and his wife retired from business in 1945 because of decedent’s failing health. In the few years that followed he underwent a number of operations, including a prostatectomy in 1951, and an operation for cancer of the large bowel in 1954, when decedent was approximately 70 years of age.

From about this time, he began volubly to express his belief that Mrs. Honigman was unfaithful to him. This suspicion became an obsession with him, although all of the witnesses agreed that the deceased was normal and rational in other respects. Seemingly aware of his mental state, he once mentioned that he was “ sick in the head ” (“ Mich krank gelassen in den Kopf”), and that “I know there is something wrong with me ” in response to a light reference to his mental condition. In December, 1955 he went to Europe, a trip Mrs. Honigman learned of in a letter sent from Idlewild Airport after he had departed, and while there he visited a doctor. Upon his return he went to a psychiatrist who Mr. Honigman said could not help ” him. Finally, he went to a chiropractor with whom he was extremely satisfied.

On March 21, 1956, shortly after his return from Europe, Mr. Honigman instructed his attorney to prepare the will in question. He never again joined Mrs. Honigman in the marital home.

To offset and contradict this showing of irrational obsession the proponents adduced proof which, it is said, furnished a reasonable basis for decedent’s belief, and which, when taken with other factors, made his testamentary disposition understandable. Briefly, this proof related to four incidents. One concerned an anniversary card sent by Mr. Krauss, a mutual acquaintance and friend of many years, bearing a printed message of congratulation in sweetly sentimental phraseology. Because it was addressed to the wife alone and not received on the anniversary date, Mr. Honigman viewed it as confirmatory of his suspicion. Then there was the reference to a letter which it is claimed contained prejudicial matter—but just what it was is not before us, because the letter was not produced in evidence and its contents were not established. There was also proof to show that whenever the house telephone rang Mrs. Honigman would answer it. From this Mr. Honigman drew added support for his suspicion that she was having an affair with Mr. Krauss. Mr. Honigman became so upset about it that for the last two years of their marriage he positively forbade her to answer the telephone. Another allegedly significant happening was an occasion when Mrs. Honigman asked the decedent as he was leaving the house what time she might expect him to return. This aroused his suspicion. He secreted himself at a vantage point in a nearby park and watched his home. He saw Mr. Krauss enter and, later, when he confronted his wife with knowledge of this incident, she allegedly asked him for a divorce. This incident was taken entirely from a statement made by Mr. Honigman to one of the witnesses. Mrs. Honigman flatly denied all of it. Their verdict shows that the jury evidently believed the objectant. Under the circumstances, we cannot say that this was wrong. The jury had the right to disregard the proponents’ proof, or to go so far as to hold that such trivia afforded even additional grounds for decedent’s irrational and unwarranted belief. The issue we must bear in mind is not whether Mrs. Honigman was unfaithful, but whether Mr. Honigman had any reasonable basis for believing that she was.

In a very early case we defined the applicable test as follows: " If a person persistently believes supposed facts, which have no real existence except in his perverted imagination, and against all evidence and probability, and conducts himself, however logically, upon the assumption of their existence, he is, so far as they are concerned, under a morbid delusion; and delusion in that sense is insanity. Such a person is essentially mad or insane on those subjects, though on other subjects he may reason, act and speak like a sensible man.” (American Seamen’s Friend Soo. v. Hopper, 33 N. Y. 619, 624-625.)

It is true that the burden of proving testamentary incapacity is a difficult one to carry (Dobie v. Armstrong, 160 N. Y. 584), but when an objectant has gone forward, as Mrs. Honigman surely has, with evidence reflecting the operation of the testator’s mind, it is the proponents’ duty to provide a basis for the alleged delusion. We cannot conclude that as a matter of law they have performed this duty successfully. When, in the light of all the circumstances surrounding a long and happy marriage such as this, the husband publicly and repeatedly expresses suspicions of his wife’s unfaithfulness; of misbehaving herself in a most unseemly fashion, by hiding male callers in the cellar of her own home, in various closets, and under the bed; of hauling men from the street up to her second-story bedroom by use of bed sheets; of making contacts over the household telephone; and of passing a clandestine note through the fence on her brother’s property—and when he claims to have heard noises which he believed to be men running about his home, but which he had not investigated, and which he could not verify—the courts should have no hesitation in placing the issue of sanity in the jury’s hands. To hold to the contrary would be to take from the jury its traditional function of passing on the facts.

Clapp v. Fullerton (34 N. Y. 190) is not controlling in the circumstances of this case. There, the decedent had not expressed his suspicion of the infidelity of his first wife, who had died 45 years earlier, until after the malting of the will, and even then he did so casually and discreetly. His belief was based on a statement made by the wife during her last illness, while she was in a state of delirium. Here, on the other hand, Mr. Honigman persisted over a long* period of time in telling his suspicions to anyone who would listen to him, friends and strangers alike. That such belief was an obsession with him was clearly established by a preponderance of concededly competent evidence and, prima facie, there was presented a question of fact as to whether it affected the will he made shortly before his death.

The proponents argue that, even if decedent was indeed laboring under a delusion, the existence of other reasons for the disposition he chose is enough to support the validity of the instrument as a will. The other reasons are, first, the size of Mrs. Honigman’s independent fortune, and, second, the financial need of his residuary legatees. These reasons, as well as his belief in his wife’s infidelity, decedent expressed to his own attorney. We dispelled a similar contention in American Seamen’s Friend Soc. v. Hopper (supra, p. 625) where wo held that a will was bad when its '‘ dispository provisions were or might have been caused or affected by the delusion ” (emphasis supplied).

The dictum of Matter of Nicholas (216 App. Div. 399, affd. without opinion 244 N. Y. 531), never approved by this court, is erroneous insofar as it points to the contrary.

We turn now to alleged errors committed by the Surrogate when he overruled objections based on section 347 of the Civil Practice Act. Much of Mrs. Honigman’s testimony, which should have been excluded as incompetent since it was evidence " concerning a personal transaction or communication between the witness [an interested party] and the deceased person”, was admitted because the Surrogate believed that the proponents, by failing to object to such testimony at the earliest opportunity, irrevocably waived their right to protest on that ground. In de Laurent v. Townsend (243 N. Y. 130) this court was unanimous in holding that the rule as to waiver of objections under section 347 was to be found in that statute “ and not elsewhere” (p. 133). The statute provides an exception ' ' where the executor, administrator, survivor, committee or person deriving title or interest is examined in his own behalf, or the testimony of the lunatic or deceased person is given in evidence, concerning the same transaction or communication”. Since the exception is inapplicable to the circumstances here present, it was error not to exclude Mrs. Honigman’s testimony whenever objections based on the prohibition of section 347 were appropriately raised.

Finally, since there is to be a new trial of the issues, the Surrogate’s ruling with regard to the clergyman-penitent privilege deserves mention. Father Heitz, a Catholic priest, was called by the objectant, who sought to elicit from him a conversation he had had with the deceased at a time Avhen the latter wanted advice concerning his marital problems. Although Father Heitz Avas Avilling, he Avas not permitted to testify to the conversation, Specifically on the ground that any conversation Avith a priest, although not in the confessional, is privileged ”. There is nothing in the record to indicate the nature of the testimony sought. In this posture it cannot be determined whether such testimony falls Avithin the privilege created by section 351 of the Civil Practice Act.

The order appealed from should be reversed and a new trial granted, Avith costs to abide the event.

Fuld, J. (dissenting).

I am Avilling to assume that the

proof demonstrates that the testator’s belief that his Avife was unfaithful was completely groundless and unjust. However, that is not enough; it does not follow from this fact that the testator suffered from such a delusion as to stamp him mentally defective or as lacking in capacity to make a will. (See, e.g., Matter of Hargrove, 288 N. Y. 604, affg. 262 App. Div. 202; Dobie v. Armstrong, 160 N. Y. 584, 593-594; Matter of White, 121 N. Y. 406, 414; Clapp v. Fullerton, 34 N. Y. 190, 197.) “ To sustain the allegation,” this court wrote in the Clapp case (34 N. Y. 190, 197), “ it is not sufficient to show that his suspicion in this respect was not well founded. It is quite apparent, from the evidence, that his distrust of the fidelity of his wife was really groundless and unjust; hut it does not follow that his doubts evince a condition of lunacy. The right of a testator to dispose of his estate, depends neither on the justice of his prejudices nor the soundness of his reasoning. He may do what he will with his own; and if there be no defect of testamentary capacity, and no undue influence or fraud, the law gives effect to his will, though its provisions are unreasonable and unjust.”

As a matter of fact, in the case before us, a goodly portion of the widow’s testimony bearing on her husband’s alleged delusion should have been excluded, as the court itself notes (opinion, pp. 251-252), by reason of section 347 of the Civil Practice Act. And, of course, if such testimony had not been received in evidence, a number of items of proof upon which the widow relies would not have been available, with the consequence that the record would have contained even less basis for her claim of delusion.

Moreover, I share the Appellate Division’s view that other and sound reasons, quite apart from the alleged decision, existed for the disposition made by the testator. Indeed, he himself had declared that his wife had enough money and he wanted to take care of his brothers and sisters living in Europe. ('See Matter of Nicholas, 216 App. Div. 399, 403, affd. 244 N. Y. 531; Coit v. Patchen, 77 N. Y. 533, 541-542; Matter of White, 121 N. Y. 406, 414, supra.)

In short, the evidence adduced utterly failed to prove that the testator was suffering from an insane delusion or lacked testamentary capacity. The Appellate Division was eminently correct in concluding that there was no issue of fact for the jury’s consideration and in directing the entry of a decree admitting the will to probate. Its order should be affirmed.

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

Order reversed, etc.


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

text:
    John Church et al., Appellants, v. Town of Islip et al., Respondents.
    Argued May 16, 1960;
    decided July 8, 1960.

      Harold P. Perkal for appellants.
    I. The change of zone was conditionally granted. This was ‘ ‘ contract zoning ’ ’. It constituted a bargaining away of the town’s police power, rendering the change of zone illegal and unconstitutional. (Wells v. Village of East Aurora, 236 App. Div. 474; Belden v. City of Niagara Falls, 230 App. Div. 601; Schwab v. Graves, 221 App. Div. 357, 247 N. Y. 575; Atlantic Beach Property Owners’ Assn. v. Town of Hempstead, 3 N Y 2d 434; Town of Greenburgh v. Buser, 4 Misc 2d 513.) II. This rezoning was granted only on the condition that the property owner accept limitations more restrictive than those imposed in a business zone under the general zoning ordinance. It was therefore discriminatory, lacked uniformity, violated the Town Law, and resulted in an illegal, void, and unconstitutional enactment. (Callanan Road

      Improvement Co. v. Town of Newburgh, 6 Misc 2d 1071, 5 A 1) 2d 1003; Baylis v. City of Baltimore, 219 Md. 164.) III. The declaration of covenants and restrictions required as a condition precedent to the rezoning was legally defective. Accordingly, the action of the Town Board in declaring the change of zone effective was premature and illegal. (Hiles v. Fisher, 144 N. Y. 306; Gray v. State of New York, 116 Misc. 760; Grosser v. City of Rochester, 148 N. Y. 235; Grassi v. Loweth, 130 Misc. 861.) IV. The Housler rezoning was arbitrary and capricious. As an illegal ‘ ‘ spot zoning ’ ’, it did not promote the needs or welfare of the community but only the individual interest of the applicant. It was not part of a comprehensive plan of zoning. (Claflin v. Meyer, 75 N. Y. 260; Haber v. Paramount Tee Corp., 264 N. Y. 98.)

      George F. X. Mclnerney for Town of Islip and others, respondents.
    I. Unless the stipulations complained of were the actual consideration for the change of zone, there is no reason why they should render the zoning invalid. (Schmitt v. Town of Oyster Bay, 5 A D 2d 994, 6 A D 2d 794.) II. Appellants failed to meet their burden of rebutting the presumption of constitutionality and the burden of proving unconstitutionality beyond a reasonable doubt. (Wiggins v. Town of Somers, 4 N Y 2d 215; Rodgers v. Village of Tarrytown, 302 N. Y. 115; Euclid v. Ambler Co., 272 U. S. 365.) III. The legislative act in rezoning the Housler property from residence to business was not invalid because it was “ spot zoning ”. (Greenberg v. City of New Rochelle, 206 Misc. 28, 284 App. Div. 891.) IV. The action of the Town Board in rezoning the affected property from Residence A to Business District was a legislative act having a proper factual basis which may not be judicially disputed. (Matter of Green Point Sav. Bank v. Board of Zoning Appeals, 281 N. Y. 534.) V. There is a strong presumption of validity supporting the action of defendant, Town Board, and its judgment and determination will be conclusive beyond interference by the courts unless shown to be arbitrary. (Rodgers v. Village of Tarrytown, 302 N. Y. 115; Gignoux v. Village of Kings Point, 199 Misc. 485; Ulmer Park Realty Co. v. City of New York, 270 App. Div. 1044, 297 N. Y. 788; Penataquit Assn. v. Furman, 283 App. Div. 875.) VI. The burden of overcoming the presumption of validity in favor of the action of the Town Board rests upon plaintiffs. (Rodgers v. Village of Tarrytown, 302 N. Y. 115; Osborne v. Village of East Hampton, 271 App. Div. 837; Matter of Wulfsohn v. Burden, 241 N. Y. 288; Shepard v. Village of Skaneateles, 300 N. Y. 115; Penataquit Assn. v. Furman, 283 App. Div. 875.) VII. The power of the Town Board of the Town of Islip to determine for itself what plans are necessary to promote the public health, morals, safety and welfare, convenience and general prosperity of its people, is a legislative question which may not be interfered with except in rare instances. (Matter of Fox Meadow Estates v. Culley, 233 App. Div. 250.)

      Bernard J. Reilly for Charles Housler and another, respondents.
    I. Appellants failed to meet their burden at the trial of rebutting the presumption of constitutionality and the burden of proving unconstitutionality beyond a reasonable doubt. (Shepard v. Village of Skaneateles, 300 N. Y. 115; Wiggins v. Town of Somers, 4 N Y 2d 215; Rodgers v. Village of Tarry-town, 302 N. Y. 115; Euclid v. Ambler Co., 272 U. S. 365.) II. The legislative act in rezoning the Housler property from residence to business was not invalid because it was “ spot zoning”. (Greenberg v. City of New Rochelle, 206 Misc. 28, 284 App. Div. 891.) III. The declaration of covenants and restrictions were not defective in form so as to render the change of zone illegal. (Homefield Assn, of Yonkers v. Frank, 273 App. Div. 788.) IV. The declaration of covenants and restrictions did not render the amendment to the zoning ordinance invalid as “ zoning by contract ”.
   Chief Judge Desmond.

Neighboring property owners brought this declaratory judgment suit against the Town of Islip in Suffolk County and against its Town Board and the owners of the involved property to have declared unconstitutional and void a 1954 zoning change (from Residence A to Business) of defendants Housler’s corner lot in Islip, irregular in shape and about 210 feet on Bay Shore Road and 230 feet on Udall’s Road. The complaint charged that the amendment was not in conformity with a comprehensive plan, that it was passed arbitrarily after a contrary recommendation by the Town Planning Board, that it arbitrarily singled out this one tract for business zoning, and that it was illegal as “contract zoning” because the Town Board’s consent to the change of zone was subject to the condition that defendants owners Housler agree to the following:

‘ ‘ 1. The building shall not total more than 25% of the area.
“ 2. An anchor post fence, or equal, six feet high, is to be erected five feet within the boundary line of the property.
‘‘ 3. Live Shrubbery, 3 feet high either within or outside of the fence is to be planted, and allowed to grow to the height of the fence and after that, to be maintained at the height of the fence.
‘1 4. The above must be performed or put in operation before carrying on any retail business on the property.”

The trial was before an Official Referee who at the request of counsel inspected the properties of plaintiffs and defendants. He found for plaintiffs. He described the neighborhood as residential in use and zoning except for a substantial business zone on Bay Shore Road, one block east of the Housler property. He wrote that there were a number of unoccupied stores in that nearby business section, that there was not shown any need for rezoning the Housler lot for business, that the change was illegal “ spot zoning ”, and that the imposition by the Town Board of conditions was illegal contract zoning ”.

Defendants appealed to the Appellate Division which by a divided vote reversed on the law and facts and gave judgment declaring the amendment to be. valid. The majority pointed out that this was a statutory change by the town’s legislative body, that the Referee’s finding of no public need or com venience was contrary to the evidence and that in any event the Town Board’s legislative finding was conclusive since supported by a factual basis, that the evidence showed the Housler parcel to be located on a main traffic artery, that community growth pressures forcing zoning changes negatived the idea that the Town Board’s action was arbitrary or without reason, and that there was nothing illegal about the Town Board’s subjecting the new district to uses more restricted than customarily permitted in a business district. The court took notice of the recent enormous population increases in Nassau and Suffolk Counties and of the consequent multiplication of practical problems presented to local legislative bodies by a deluge of applications for zoning district changes which are prompted by the necessities of such growth”. Continuing, the Appellate Division said that It is understandable that in the public interest and in the interest of practical expediency the practice of granting* zoning changes and conditioning their uses by means of privately imposed restrictive covenants has seemingly become widespread [citing cases]. ” The majority denied that “ such practice is contrary to the spirit of zoning ordinances ” or beyond the statutory powers of local legislative bodies ”.

The dissent, citing sections 262-265 of the Town Law, said that changes in zones by the Town Board could be made only according to a comprehensive plan, whereas this change was subject to special conditions imposed on this property only. The Presiding Justice thought this to be illegal and that it amounted to zoning by contract. He thought, further, that the owners had not complied with the conditions and that they are unenforeible anyhow since they were either invalidly agreed to in consideration of the zoning change or were not supported by any consideration. In this connection, see the reply, brief where plaintiffs expressly concede that the owners Housler have complied with the conditions by recording an appropriate agreement.

We start with the proposition that this zoning being a legislative act (not a variance) is entitled to the strongest possible presumption of validity and must stand if there was any factual basis therefor (Shepard v. Village of Skaneateles, 300 N. Y. 115; Wiggins v. Town of Somers, 4 N Y 2d 215). The Town Board’s action in this instance was unanimous. Appellants do not seem to question the Appellate Division’s fact findings. It is undisputed that Bay Shore Road has become a busy arterial highway with a traffic light at this corner and that the very Town Planning Board which recommended against this zoning change recommended a shopping area (now established) only 600 feet from this parcel on Bay Shore Road. On the issue of arbi: trariness, there was reliable testimony that all of Bay Shore Road would be eventually zoned for business and that this trend could not be stopped, that the subject property is more desirable for business use than for residential, and that there was nothing-arbitrary, preferential or discriminatory about the Town Board action, unanimously voted after hearing and deliberation.

Appellants’ arguments all revolve about the idea that this is illegal as “contract zoning” because the Town Board, as a condition for rezoning, required the owners to execute and record restrictive covenants as to maximum area to be occupied by buildings and as to a fence and shrubbery. Surely these conditions were intended to be and are for the benefit of the neighbors. Since the Town Board could have, presumably, zoned this Bay Shore Road corner for business without any restrictions, we fail to see how reasonable conditions invalidate the legislation. Since the owners have accepted them, there is no one in a position to contest them. Exactly what ‘ ‘ contract zoning ” means is unclear and there is really no New York law on the subject. All legislation “by contract” is invalid in the sense that a Legislature cannot bargain away or sell its powers. But we deal here with actualities, not phrases. To meet increasing needs of Suffolk County’s own population explosion, and at the same time to make as gradual and as little of an annoyance as possible the change from residence to business on the main highways, the Town Board imposes conditions. There is nothing unconstitutional about it. Incidentally, the record does not show any agreement in the sense that the owners made an offer accepted by the board.

The judgment should be affirmed, without costs.

Froessel, J. (dissenting).

I dissent and vote to reverse for the reasons stated in Presiding Justice Nolan’s dissenting-opinion below with respect to the Town Board’s lack of power. The board is authorized by the Town Law to create districts subject to this condition: “All such regulations [within a district] shall be uniform for each class or kind of buildings, throughout such district” (§ 262), and “ shall be made in accordance with a comprehensive plan” (§ 263; emphasis supplied), The purpose of a plan is to look ahead. Piecemeal, parcel by parcel, conditional zoning pending the adoption of a plan is unauthorized. Variances in appropriate situations may be granted by Zoning Boards of Appeal but only under prescribed safeguards (§§ 261, 267). The power exercised by the Town Board is without warrant in law.

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

Judgment affirmed.


author: Froessel, J.

text:
    The People of the State of New York, Appellant, v. John Dioguardi and John J. McNamara, Respondents.
    Argued April 28, I960;
    decided July 8, 1960.

      Frank S. Hogan, District Attorney (Richard G. Denzer and II. Richard Uviller of counsel), for appellant.
    The evidence was legally sufficient to support the judgments. (United States v. Varlack, 225 F. 2d 665; Callanan v. United States, 223 F. 2d 171, 350 U. S. 862; People v. Thompson, 97 N. Y. 313; People v. Weinseimer, 117 App. Div. 603, 190 N. Y. 537; People v. Barondess, 61 Hun 571,133 N. Y. 649; People v. Wilzig, 4 N. Y. Crim. Rep. 403; Hornstein v. Paramount Pictures, 22 Misc 2d 996, 266 App. Div. 659, 292 N. Y. 468.)

      William W. Kleinman, Eugene Gold and Solomon A. Klein for John Dioguardi, respondent.
    The record is devoid of any evidence of extorsive conduct on the part of defendants •— indeed, so contrary to the testimony of the People’s witnesses, that to permit a retrial would violate the fundamental rights of the accused. (People v. Rollek, 280 App. Div. 437, 304 N. Y. 905; People v. Hughes, 137 N. Y. 29; People v. Barondess, 133 N. Y. 649; People v. Weinseimer, 117 App. Div. 603.)

      Arthur Karger and Herman L. Weisman for John J. McNamara, respondent.
    The Appellate Division correctly held that the evidence was legally insufficient to support a verdict of guilty on either count of the indictment. (People v. Rollek, 280 App. Div. 437, 304 N. Y. 905; People v. Fichtner, 281 App. Div. 159, 305 N. Y. 864; People v. Barondess, 61 Hun 571, 133 N. Y. 649; People v. Hughes, 137 N. Y. 29; People v. Weinseimer, 117 App. Div. 603, 190 N. Y. 537; People v. Lamm, 292 N. Y. 224; People v. Hendrickson, 264 App. Div. 903, 289 N. Y. 740; People v. Vaccarino, 277 App. Div. 1146; People v. Thompson, 97 N. Y. 313; Metropolitan Trust Co. v. Muter Co., 171 F. 2d 380, 337 U. S. 907; Kazaras v. Manufacturers Trust Co., 4 A D 2d 227, 4 N Y 2d 930; Oleet v. Pennsylvania Exch. Bank, 285 App. Div. 411; Youssoupoff v. Widener, 246 N. Y. 174; People v. Suffern, 267 N. Y. 115; People v. Razezics, 206 N. Y. 249; People v. Carpenito, 292 N. Y. 498; People v. Harris, 306 N. Y. 345; People v. Galbo, 218 N. Y. 283; People v. Leyra, 1 N Y 2d 199; People v. Feld, 262 App. Div. 909; People v. Greenberg, 289 N. Y. 72; Callnan v. United States, 223 F. 2d 171, 350 U. S. 862.)
   Froessel, J.

The Appellate Division has reversed defendants ’ convictions for extortion and conspiracy to commit extortion, dismissed the indictment and discharged them from custody. In addition to the conspiracy count, the indictment charged defendants with extorting $4,700 from the officers of two corporations. Said corporations were nonunion, conducted a wholesale stationery and office supply business in Manhattan, did an annual business of several million dollars, and their stock was wholly owned by a family named Kerin. Anthony Kerin, Sr., president and “boss” of the Kerin companies, made all the important corporate policy decisions. The other two corporate officers were his son, Kerin, Jr., and one Jack Schumann.

Defendant McNamara, the alleged “front man” in the extorsive scheme, was an official of Teamster Locals 295 and 808, as well as a member of the Teamsters Joint Council. Defendant Dioguardi, the immediate beneficiary of the payments and the alleged power behind the scene, was sole officer of Equitable Research Associates, Inc.— a, publishing house, according to its certificate of incorporation, a public relations concern, according to its bank account and the Yellow Pages of the telephone directory, a labor statistics concern, according to its office secretary and sole employee, and a firm of labor consultants, according to its business card and alternate listing in the aforesaid directory.

The ‘' question of law ’ ’ before us is “ whether, from any view of the testimony, there was a question of fact regarding the defendant [s’] guilt which should have been submitted * * * to the jury and not disposed of by dismissal in the appellate court.” (People v. Bellows, 281 N. Y. 67, 73.) The facts may be summarized as follows:

Between November, 1955 and mid-January, 1956, the Kerin companies were confronted with organizational activities on the part of four unions. A CIO local first contacted management by letter. Two visiting representatives from Teamster Local 210 then threatened to organize the companies by ' ' putting-pickets out” and “stopping shipments” if management did not agree to organize the employees on behalf of their local. Some six weeks later a picket appeared at the delivery and shipping entrance in the rear of the Kerin premises, carrying a placard reciting that one of the Kerin companies was unfair to members of Teamster Local 138. No representative from that local ever contacted management, and all its officials testified that they had not authorized a picket line at the premises.

Finally, during the week in which the picket was parading at the rear, two organizers from Local 1601 of the Retail Clerks International Association appeared in the front lobby distributing literature to the companies’ employees. This last union had been recommended to management by another stationery concern, and had been sought out by Kerin, Sr., who wished to have his employees organized by a strong, competent, ethical union. Although the president of that local had promised to promptly send representatives to canvass the employees, nothing happened for three weeks, and the belated appearance of Local 1601 organizers only compounded the confusion in the minds of the Kerin officers, further complicating an already complex labor situation.

The appearance of the picket line—which truck drivers from two companies refused to cross — thoroughly alarmed the Kerin officers, since they were in an “ extremely competitive business ’ ’, and a cessation of incoming or outgoing truck deliveries for as short a period as two weeks would effectively force them out of business. Their attorney, William Coogan, advised them that filing a petition with the National Labor Relations Board (N. L. R. B.) for an election among the competing unions would not constitute a solution, since such proceeding might take anywhere from two weeks to three months, and peaceful picketing could not be enjoined before, during or even after the election. He felt that a consent election was the best way to settle the matter, and informed them that he might be able to meet with a prominent teamster official on a higher level, who could call a halt to the ridiculous ” situation of two teamster locals competing with each other.

Coogan had previously been in touch with his brother-in-law, William White, a labor law professor who had met McNamara socially and, after the Kerin management agreed, White contacted McNamara and arranged a meeting with him and Coogan. At the meeting, McNamara was generally discouraging as to the feasibility of a consent election. However, after joining Coogan in a men’s room, McNamara suggested privately “ that something might be done, but that it would be expensive * * * it could run five to ten thousand dollars ”. After Coogan vetoed that possibility, and McNamara had made several telephone calls, the three adjourned to a Chinese restaurant recommended by McNamara for dinner, during the course of which one Milton Holt approached the table and was introduced by McNamara as an attorney, although, in fact, he was an officer of Teamster Local 805 and not a member of the Bar. After Holt was apprised of the labor difficulties confronting the Kerin companies, McNamara stated: “ This looks to me to be the kind of a situation which Equitable can help out ’ ’, to which Holt nodded an affirmative. Neither White nor Coogan had ever heard of Equitable before that day, and they neither sought nor received enlightenment.

The following morning Coogan reported to the Kerin officers that he had had “ a very rough evening” with McNamara — whom he described as a “tough-talking man” who “was obviously a high official in the labor movement ”, “ had a grasp of the whole situation” and “knew what was going on”— and that ‘ the gist of the conversation was that * * * for a payment of ten thousand dollars, the whole matter could be settled, and settled almost immediately ”. Kerin, Sr., “ almost had a stroke ” and furiously asserted that he would rather close up his business than “ pay ten thousand dollars, or any amount of money, to anybody ”. According to Kerin, Jr., his father inquired: “ What happens if we don’t pay? ”, to which Coogan replied that “ orders could be given through the Teamsters Joint Council to this area to make the picket line completely effective; that it would block off almost one hundred per cent all deliveries and all receiving”. Coogan further stated that they could explore the situation further if they desired, but that his firm would have no future discussions of any kind with McNamara.

After waiting for his father to “ cool off ”, Kerin, Jr., and Schumann told him that he owed it to them and the employees at least to discuss the situation with McNamara. Kerin, Sr., finally agreed to such a meeting, but then did nothing about it. Two days later, McNamara first telephoned White and then Coogan to inquire of each whether Coogan’s client was “ interested ” in pursuing their discussion of the other evening. He gave Coogan two telephone numbers at which he could be reached, one of which was the office number of Equitable. After Coogan furnished Schumann with the numbers, the latter called McNamara and arranged a meeting for the following day at the Manhattan Club.

On Friday afternoon, January 20, 1956, McNamara, accompanied by Holt—whom he again introduced as his attorney — met with the three Kerin officers in a private diningroom at the Manhattan Club. Holt soon suggested that Kerin, Sr., and McNamara “step outside and have a chat” and, after adjourning to another room, McNamara assured Kerin, Sr., that his troubles could be ended, and would be, if he did three things: (1) “ joined up ” with McNamara’s Local 295, (2) paid $3,500 to Equitable to defray the “out-of-pocket” expenses incurred by the various unions that had sought to organize the companies, and (3) retained Equitable as labor consultant at $100 per month for each company for the period of the collective bargaining contract to be signed with Local 295, for which the companies ‘ ‘ would get counsel and advice * * * in any matter that was pertinent or related to labor or labor relationships ’ ’. McNamara repeatedly assured Kerin, Sr., that the picketing would stop immediately and the companies would be guaranteed labor peace if his program were accepted.

Kerin, Sr., stated that he was not averse to having his employees organized by Local 295, if it was a good, honest union, and that he could ‘' accept the idea of a hundred dollars a month as a retainer fee for labor counsel and advice ”. He protested against the proposed payment of $3,500, however, as an “extraordinary charge” that sounded “like a hold-up”, to which McNamara replied: “ It may seem that way to you, Mr. Kerin, but that is the amount of money that these unions that have sought to organize you * * * have expended, and if we are going to avoid further trouble and further difficulties, it is my suggestion that you pay that to the Equitable Associates. If you don’t pay it, we can’t go through with the program.’ That was either said or implied, * * * I better withdraw that. That was the point.” (Emphasis supplied.) Kerin, Sr., finally agreed, after insisting upon a written contract with Equitable and payment by check. Upon returning to the rest of the group, he advised his son and Schumann of the terms of McNamara’s program. He emphasized that the payments to Equitable were necessary “ in order to get rid of [the] picket ”, who “was going to be removed immediately”, and that McNamara had assured him “ that our troubles and difficulties would be at an end ” and that “ we would be guaranteed labor peace for the term of our contract Kerin, Jr., and Schumann assented to the program.

On the Monday following the meeting, no picket or organizer appeared at the Kerin premises. McNamara came to the office in the morning, stating: Well, you notice that you have no more picket ’ ’, and delivered two letter agreements between Equitable and the Kerin companies, signed by defendant Dioguardi— this being the first time his name came to the attention of the Kerin management. The contracts authorized Equitable to negotiate with Local 296 on behalf of the employers, and the employers agreed to pay $3,500 upon execution of the agreements, and $200 a month thereafter ‘ ‘ for such services rendered by you, or to be rendered, irrespective of the final negotiations of any written agreement ”, and for general counseling services. The agreements did not state that the down payment of $3,500 was to be used to defray the expenses supposedly incurred by the various unions that had sought to organize the Kerin companies. Although McNamara agreed to leave the contracts with the Kerin officers for their perusal, he insisted on immediate receipt of $3,500, and checks in that amount were handed over to him.

Revised contracts were delivered to McNamara about a week later, and he returned them signed by Dioguardi. The Kerin checks for $3,500 were deposited in Equitable’s bank account, and within nine days thereafter practically the entire amount was withdrawn. The bulk of the checks was payable to, signed and indorsed by Dioguardi—not to other unions for reimbursement of their expenses — and was entered on Equitable’s books as salary payments to him.

In May, 1956, over three months after the monthly payments to Equitable had commenced, McNamara arranged an appointment for Schumann with Dioguardi, at the request of the Kerin management. After Schumann commented on the removal of the picket and the absence of labor trouble, Dioguardi said, in substance, that that is the way it should be”, and asked Schumann to send him a copy of the contract to be signed with Local 295. In June, after the Kerin management had successfully induced their employees to join Local 295 so as to forestall picketing and keep the companies operating, a collective bargaining agreement with McNamara’s local was signed. Although a copy of .the contract was mailed to Equitable, as requested by Dioguardi, Equitable did not participate in any way in the negotiation of the contract, and its consulting services were never requested or used by the Kerin management. The Kerin companies continued to pay Equitable $200 a month until July, 1956, when they were instructed by the District Attorney’s office to discontinue the payments. A total of $4,700 had been paid to Equitable, which was the amount defendants were charged in the indictment with extorting. In August, 1957, pursuant to a petition filed by a Kerin employee and following an election conducted by the N. L. R. B., Local 29'5 was “ deauthorized ” as bargaining agent for the Kerin employees.

Upon the proof in this record, a jury could properly conclude that defendants were guilty of extortion—cleverly conceived and subtly executed, but extortion nonetheless. The essence of the crime is obtaining property by a wrongful use of fear, induced by a threat to do an unlawful injury (Penal Law, §§ 850, 851). It is well-settled law in this State that fear of economic loss or harm satisfies the ingredient of fear necessary to the crime (People v. Barondess, 133 N. Y. 649, revg. on dissenting opinion below 61 Hun 571, 581; People v. Weinseimer, 190 N. Y. 537, affg. 117 App. Div. 603).

Moreover, it is not essential that a defendant create the fear existing in the mind of his prospective victim so long as he succeeds in persuading him that he possesses the power to remove or continue its cause, and instills a new fear by threatening to misuse that power as a device to exact tribute (People v. Weinseimer, 117 App. Div. 603, 607, supra; Callanan v. United States, 223 F. 2d 171, cert, denied 350 U. S. 862; United States v. Varlack, 225 F. 2d 665). Our statute, as well as the Hobbs or Federal Anti-Racketeering Act (U. S. Code, tit. 18, § 1951, subd. [b], par. [2]) which was patterned after it (United States v. Sweeney, 262 F. 2d 272,275, fn. 3), talks in terms of a wrongful use of fear, and the ultimate issue ‘ ‘ is not so much the cause of the victim’s fear, as it is whether or not defendants played upon that fear, in other words, made use of that fear to extort money or property ’ ” (Callanan v. United States, 223 F. 2d 171, 174, supra).

The Kerin management unmistakably feared that the continued existence of the picket line and the perpetuation of the ostensible organizational struggle between competing locals would put their companies out of business. The failure to establish that this fear was initially induced by or attributable to either defendant, or someone acting in concert with them, is not determinative, so long as there was proof that defendants " seized upon the opportunity presented by” that fear “to line their own pockets by implanting in the minds of the company officials the idea that unless and until the tribute demanded was paid to the defendants ’ ’, the picketing and labor war would continue (United States v. Varlack, 225 F. 2d 665, 668 supra). The decision in People v. Gardner (144 N. Y. 119) implies nothing to the contrary, since the victim of an attempted extortion in that case was not actuated by fear of any kind, either preexisting or newly created, and exploitation of an independently instilled fear was in no way involved.

As to the element of a threat, the crux of defendants’ position is that McNamara was under no duty to intervene to alter the existing situation, and a threat to do nothing to aid the Kerin management if they did not assent to the terms of his proposal is not tantamount to a threat to do an unlawful injury within the contemplation of the statute. However, section 858 of the Penal Law expressly makes it “immaterial” to the crime of extortion “ whether a threat * * * is of things to be done or omitted by the offender, or by any other person ” (emphasis supplied), and we long ago held: “ No precise words aré needed to convey a threat. It may be done by innuendo or suggestion. To ascertain whether a letter [or oral proposal] conveys a threat, all its language, together with the. circumstances under which it was written [or spoken], and the relations between the parties may be considered, and if it can be found that the purport and natural effect of the letter [or oral proposal] is to convey a threat, then the mere form of words is unimportant.” (People v. Thompson, 97 N. Y. 313, 318; emphasis supplied.) If McNamara, acting for himself and Dioguardi’s alter ego, Equitable, professed to have control over the labor problems besetting the Kerin companies, i.e., if he instilled the belief in the minds of the Kerin officers that the continuance or discontinuance of the picket line and the labor 'war rested with him and Equitable, and he demanded tribute for the exercise of that control, then he effectively conveyed a threat to do an unlawful injury, and he and those acting in concert with him could properly be convicted of extortion.

Local 210, which threatened to organize the Kerin companies by picket lines if necessary, and Local 138, which ostensibly commenced the potentially ruinous picket line, were both teamster unions, and from the beginning McNamara was pictured to Coogan, and, in turn, to the Kerin management, as a powerful and high-ranking figure in the teamster organization. McNamara effectively heightened this image by displaying to Coogan a familarity with the labor difficulties faced by his client, and by suggesting that the matter could be “ settled almost immediately ’ ’ by the payment of as much as $10,000. He discouraged resort to a consent election, since Locals 210 and 138 were “old-line unions ” who would press their organizational efforts to the utmost, and not willingly forego their investment in organizational expenses. He further darkened the picture by informing C'oogan that it was “ entirely probable ” that other unions would respect the organizational picket line, and there was no “ real hope ” that even partial deliveries would continue. There is also evidence that McNamara left C'oogan with the impression—thereafter conveyed to the Kerin officers — that he had the power to intensify the picket line by having the Joint Council issue orders to all teamster locals to make the picket line 100% effective, with the necessary result of putting the Kerin companies out of business.

It seems clear, at all events, that the “ furious ” Kerin, Sr., as well as the other two corporate officers, agreed to meet with McNamara because they believed he possessed the power to cure the labor situation which threatened their businesses with potential ruin. During the private chat suggested by the bogus attorney Holt, McNamara confidently assured Kerin, Sr., that, his troubles not merely ‘ ‘ could be ended ’ ’ but ‘ ‘ would be ended” if his (McNamara’s) package deal were accepted. McNamara flatly stated that the picket “ would be out of there by Monday morning” and, if any other union attempted to organize, “ all we had to do. was tell them that we were members of his local, and that that should be enough for them, and advise him and advise the Equitable Research Associates of our problem ”. All the Kerin officers testified, in substance, that McNamara induced them to believe that they would be guaranteed labor peace if they made the suggested payments. While Kerin, Sr., experienced no personal fear, he did fear economic harm, for he testified unequivocally that “ the fundamental reason for my going through with this kind of an arrangement was to preserve my company, fearing that if I did not meet these conditions with Mr. McNamara, that we would be closed up.” (Emphasis supplied.) Schumann believed that “ If this agreement was not reached, we had reason to believe then that the picket line would remain ’ ’ and that ' ‘ we would be very seriously damaged and maybe forced out of business ”. Kerin, Jr., ‘ very definitely * * * was fearful that if we did not effect a settlement, and effect it pretty quickly, on this picketing, that we were going to be put out of business ’ ’.

Viewing the evidence in its aspect most favorable to the People, as we must upon this appeal, the present case is indistinguishable from People v. Weinseimer (supra) —where the president of a striking labor union successfully induced the employer to believe that, unless he were paid a substantial sum, he would prevent the employees from returning to work—and People v. Barondess (supra)—where a union manager told a struck employer: “ * You have got to pay me five hundred dollars to have your people back again to work ’ ” (61 Hun 571, 583, supra). The picketing here, like the strikes in those cases, may have been perfectly lawful in its inception (assuming it was part of a bona fide organizational effort) and may have remained so — despite its potentially ruinous effect on the employers’ businesses — so long as it was employed to accomplish the legitimate labor objective of organization. Its entire character changed from legality to criminality, however, when it was used as a pressure device to exact the payment of money as a condition of its cessation (see People v. Hughes, 137 N. Y. 29, 39). The fact that McNamara, unlike Weinseimer and Barondess, was not an official of the particular local engaging in the injurious activity is immaterial, so long’ as he and Equitable professed to have power to eliminate or continue it, and used that purported power as a lever to exact tribute. Although McNamara “ did not expressly represent that he controlled” the picket and Kerin, Sr., ‘ did not expressly testify that he believed that the defendant would keep the [picket line going] unless his demands were acceded to”, the evidence “fairly warranted the jury in finding those facts ” (People v. Wein seimer, 117 App. Div. 603, 614, supra). While he did not expressly threaten [management] that he would do anything himself ’ ’, McNamara ‘ ‘ asserted himself to be in such a relation to the [picket] * * * as to control [its] movements ” (People v. Barondess, 61 Hun 571, 579, 584, supra), and instilled the belief that the picketing would continue unless his monetary demands were met. The power to remove a picket clearly implies the power to maintain it. The jury could properly infer that the substance of McNamara’s proposal was: You have got to pay Equitable $3,500 down and $200 a month to have the picket removed and labor peace guaranteed.” This, to our minds, is indistinguishable from ‘ ‘ the only evidence of any threat made by defendant ” in the Barondess case (61 Hun 571, 579, supra; see, also, People v. Lamm, 292 N. Y. 224, 229-230).

Moreover, in the present case, we have not only ‘ ‘ the pretense of control ’ ’, but clear evidence of achial control. On the business day next following the Manhattan Club meeting, before any money loas paid and before any written contract with Equitable had been signed by management, no picket or organizer appeared at the Kerin premises. McNamara promptly reminded management to notice ‘ you have no more picket ’ ’, and, so long as the monthly payments to Equitable continued, labor peace ensued. Any doubt concerning the ‘ control ’ ’ flavor of the entire transaction seems dissipated by the necessity of $200 monthly payments to the labor consultant who never advised and was never consulted. As the People contend, the jury could reasonably infer that the Kerin companies continued to make these payments ‘ ‘ because of a plain implication that [Equitable’s] demonstrated influence and control could and doubtless would be exerted to restore and even intensify the labor predicament just as readily as it could be and was employed to terminate it.”

As to defendant Dioguardi, the jury could, properly find that he was a knowing participant in the extorsive scheme, and acted throughout in concert with McNamara. It was Equitable which was constantly depicted as the essential force in solving the labor problems besetting the Kerin companies, and Equitable in reality was Dioguardi. Re signed the contracts with the two Companies calling for a down payment of $3,500 and monthly payments of $200 thereafter, in return for labor negotiating and counseling services which were never rendered. He withdrew the $3,500—most of it as salary —- within nine days after receipt thereof, and received all the subsequent payments. McNamara’s original appointment with White was at the Equitable office; one of the two telephone numbers at which McNamara told Coogan he could be reached was Equitable’s. Milton Holt, the bogus “ attorney ” who met McNamara at Billy Grwon’s restaurant promptly after a telephone call, and who accompanied him to the Manhattan Club, had been a witness to the office lease signed by Dioguardi on behalf of Equitable, and was a friend of both Dioguardi and McNamara. Finally, during a discussion with one of the Kerin officers several months after the arrangement was consummated, Dioguardi manifested familiarity therewith, and personally requested that a copy of the collective bargaining agreement with McNamara’s union be sent to him. The jury had the right to conclude that Dioguardi was the effective power behind McNamara’s teamster throne, and that both were guilty of the crimes charged.

The suggestion made by McNamara’s attorney at the trial— and apparently adopted by the Appellate Division majority — that defendants were indicted for the wrong crime, i.e., that the offense committed was the solicitation or acceptance of a bribe by a labor representative (Penal Law, § 380, subd. 2, added by L. 1953, eh. 675, and made a felony by L. 1959, ch. 609), need not trouble us. Bribery of a labor representative and extortion have been held to be mutually exclusive crimes {People v. Feld, 262 App. Div. 909), and that is undoubtedly correct, since section 380 of the Penal Law makes the payor equally as guilty as the payee, which could never be the case with extortion.

As noted in Hornstein v. Paramount Pictures (22 Misc 2d 996, 1003, 1006, affd. 266 App. Div. 659, affd. 292 N. Y. 468), where payments to labor officials to forestall a threatened strike were held to constitute extortion rather than bribery, ‘ ‘ the essence of bribery is the voluntary giving of something of value to influence the performance of official duty ’ ’, whereas the essence of extortion is “duress”. Although the theoretical distinction between the two crimes is clear, the line of demarcation may not, in practical application, always be clear, particularly where, as here, the allegedly extorsive demand for payment was couched in the form of polite suggestions, and it is claimed that the payments were solicited from a receptive and willing donor.

It is true that McNamara was originally brought into the picture by persons acting on behalf of the Kerin companies; that Kerin, Sr., testified that his relations with McNamara were always cordial and that McNamara always acted like a gentleman. In light of this and other evidence, defendants unquestionably were “ entitled to have the jury instructed that if the employer were guilty of bribery, the [defendants] could not be guilty of extortion ” (People v. Feld, 262 App. Div. 909, supra).

The trial court did so charge the jury—although it might have more thoroughly developed the distinction between bribery and extortion—but surely defendants were not entitled to a directed verdict of not guilty. Where it is perfectly clear that either one or the other of two mutually exclusive crimes has been committed, and where the line of demarcation in a particular case depends upon the evaluation of particular facts, the question may not 'be resolved by the court as a matter of law. It is the province of the jury, under clear and complete instructions from the court, to consider and weigh the facts, and to determine the defendants’ guilt or innocence of the crime charged. Upon this record, the question of whether the crime committed was bribery or extortion was purely a question of fact” (People v. Feld, supra), and it cannot be said as a matter of law that under no view of the testimony could the jury find the defendants guilty of extortion.

McNamara was initially sought out, not as a likely candidate for a bribe, but for the entirely legitimate purpose of helping to arrange a consent election between competing teamster locals. It was he who first suggested the payment of tribute and, when this was reported to Kerin, Sr., he bitterly asserted that he would rather close up his business than “ pay ten thousand dollars, or any amount of money, to anybody ” (emphasis supplied) . It was McNamara who followed up his discussion with Coogan, and, according to Kerin, Jr., and Schumann, Kerin, Sr., agreed to meet with McNamara only to verify whether there was any need of paying anything, and not to bargain for a reduced amount. During their private “ chat ”, when Kerin, Sr., protested to the payment of $3,500 as a hold-up ”, McNamara flatly warned him that he had to pay. Although Kerin, Sr., stated that he had no fault to find with the arrangement consummated, he made it clear he knew that “if I didn’t go through with this arrangement, my business would be closed up ”. Indeed, he repeatedly testified that he “ knew ” he “ had to pay ” to prevent “ an absolute closure of our business ”, and thus the jury could find that the payments here, as in the Hornstein case (supra), ‘ unquestionably were made because of * * * an honestly entertained and reasonably based belief that they were necessary to keep going the business ” (22 Mise 2d 996, 1006). The fact that Kerin, Sr., wished to perpetuate his hope and ambition of bequeathing the business to his son in no measure precludes a finding that the payments were extorsive. The crucial testimony is that he “ knew ” he “ had to pay ” to keep the companies operating, “ fearing that if I did not meet these conditions with Mr. McNamara, that we would be closed up ” (emphasis supplied). It is compulsion that distinguishes extortion from bribery—“ obtaining the property of a corporation from an officer * * * thereof, with his consent, induced by a wrongful use of * * * fear ” (Penal Law, § 850; emphasis supplied). Bribery is unqualified “ voluntary giving ” (Hornstein v. Paramount Pictures, supra, p. 1003).

As to McNamara’s representation that the $3,500 down payment to Equitable was to be distributed to the competing unions as reimbursement for their organizational expenses, the jury was entitled to conclude that this was a bald fabrication. The $3,500 was deposited in Equitable’s bank account, and within nine days thereafter virtually all of it was withdrawn, Dioguardi having personally checked out most of it to himself as salary. None of it was used to reimburse other unions for picketing or other organizational expenses, which McNamara represented to Kerin, 'Sr., was an indispensable condition to inducing them to withdraw. The circumstance that the picketing stopped promptly upon the payment of this $3,500 to defendants without their distributing it to other unions or the leaders thereof is evidence from which the jury could conclude that defendants themselves controlled the picketing, and were exacting payment to and for themselves as a condition of relieving the economic pressure on Kerin, Sr. ’s, companies which he so greatly feared. All the officials of Teamster Local 138 testified that they had never authorized, or known, anything about the lone picket, who was carrying their placard, and hence they would hardly have been reimbursed for expenses they never incurred. Indeed, their testimony demonstrates that they had nothing to do with the removal of the mysterious picket, and puts the lie to McNamara’s representation that he would have to reimburse the picketing union for its expenses before it would agree to withdraw. It is perfectly clear from the record that defendants never intended to pay any part of the $3,500 to any of the unions involved, and that, in fact, the money went directly into Dioguardi’s pocket promptly after the picket was removed, as McNamara promised.

Surely the jury was entitled to conclude that the payments were essentially involuntary, and motivated, as in the Hornstein ease, by “ ‘ some actual or threatened exercise of power possessed, or believed to be possessed, by the party exacting or receiving the payment over the * * * property of another, from which the latter has no other means of immediate relief than by making the payment ’ ”. (22 Misc 2d 996, 1007.) The characteristic of duress ”, as further noted in that case (p. 1008), “ is that a choice is made of the lesser of two evils according to interest ”. The jury could reasonably find that such a choice was presented to Kerin, Sr., and that he agreed to make the suggested payments only so as to guarantee the continued operation of businesses that grossed several million dollars a year.

To hold as a matter of law that the crime committed was bribery rather than extortion would necessarily mean that the Kerin officers were equally as guilty as defendants. We are not ready to impute to section 380 of the Penal Law the meaning that one who is victimized by an extortion of the kind in question ” has committed a crime (Hornstein v. Paramount Pictures, 292 N. Y. 468, 471-472, supra). Labor extortion affects not merely the victim, but to a much greater degree the workers in the labor movement, and more especially the community as a whole. It is a wrong which the government deems injurious to the public at large, and thus punishes through a judicial proceeding in its own name.

The orders appealed from should be reversed, the indictments reinstated, and a new trial ordered.

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

Orders reversed, etc.