text:
    Louis Sicolo, Appellant, v. Prudential Savings Bank of Brooklyn, N. Y., Respondent.
    Argued October 15, 1958;
    decided March 5, 1959.

      Donald S. Sherwood and Jerome Golenbock for appellant.
    I.. The amended complaint relates back to the original complaint and is not barred by the Statute of Limitations. (Pine Grove Poultry Farm v. Newton By-Prods. Mfg. Co., 248 N. Y. 293; Chotapeg, Inc., v. Bullowa, 291 N. Y. 70; Condon v. Associated Hosp. Service of N. Y., 287 N. Y. 411; Dyer v. Broadway Cent. Bank, 252 N. Y. 430; Kain v. Larkin, 141 N. Y. 144; Abrams v. Maryland Cas. Co., 300 N. Y. 80; Lewis v. Wilson S Co., 275 App. Div. 9; Friederichsen v. Renard, 247 U. S. 207.) II. Section 23 of the Civil Practice Act applies. (Titus v. Poole, 145 N. Y. 414; Moen v. Thompson, 186 Misc. 647; Hatch v. Central Nat. Bank, 78 N. Y. 487; Elting v. Dayton, 67 Hun 425; Deyo v. Hudson, 191 App. Div. 655; People ex rel. Lehigh Val. Ry. Co. v. Clover, 174 Misc. 888; Bellinger v. German Ins. Co., 51 Misc. 463, 113 App. Div. 917.) III. The six-year Statute of Limitations (Civ. Prac. Act, § 48, subd. 2) governs this action. (Cox v. Lykes Bros., 237 N. Y. 376; Seaboard Terms. Corp. v. Standard Oil Co., 104 F. 2d 659; Pastor v. American Tel. & Tel. Co., 76 F. Supp. 781; Alden-Rochelle v. American Soc. of Composers, 3 F. R. D. 157; Winkler-Koch Eng. Co. v. Universal Oil Prods. Co., 100 F. Supp. 15; Bascom

      Launder Corp. v. Farng, 10 F. R. D. 421; Connolly v. Bell, 286 App. Div. 220, 309 N. Y. 581.)

      Harold M. Harkavy and Frederick M. Garfield for respondent.
    I. The amended complaint sets forth an entirely new and different cause of action from the cause of action originally pleaded. (Gannon v. Royal Properties, 285 App. Div. 131, 309 N. Y. 819; McConnell v. Caribbean Petroleum Co., 278 N. Y. 189.) II. The cause of action set forth in the amended complaint is barred by the three-year Statute of Limitations. (Harriss v. Tams, 258 N. Y. 229; Streeter v. Graham & Norton Co., 263 N. Y. 39; Victor Process Co. v. Pile Prods. Corp., 274 App. Div. 907, 299 N. Y. 561; Merchants’ Bank of New Haven v. Bliss, 35 N. Y. 412; Collins v. Minkin, 191 Misc. 76.)
   Desmond, J.

The principal law question on this appeal — and the only one we need answer—is as to whether the cause of action under section 205-a of the General Municipal Law set forth in the amended complaint is one for a penalty and so barred by the three-year limitation prescribed by subdivision 3 of section 49 of the Civil Practice Act. Plaintiff argues that in his amended complaint he does not sue for a penalty but declares on “ a liability created by statute ” and accordingly that his suit is subject only to the six-year limitation of subdivision 2 of section 48 of the Civil Practice Act.

On December 23, 1951 plaintiff, a member of the New York City Fire Department, was injured while helping to put out a fire in a Brooklyn building owned by defendant. In January, 1954 plaintiff served on defendant a summons and original complaint, the allegations of which charged negligence but which did not mention section 205-a of the General Municipal Law. We are not now directly concerned with that original complaint which was dismissed in March, 1956 for insufficiency. Leave to amend within 10 days was granted but no amended complaint was served until May, 1956, four years and five months after the accident. The amended complaint set out a cause of action under section 205-a of the General Municipal Law, hereafter discussed. Defendant’s motion to dismiss it because not begun within three years from the accrual of the action was denied by Special Term but granted by the Appellate Division. We hold that the six-year limitation is the one applicable and that the amended complaint should not have been dismissed.

Section 205-a of the General Municipal Law is headed: “ Additional right of action to certain injured and representatives of certain deceased firemen.” Omitting language not applicable here, the section reads as follows:

‘ ‘ In addition to any other right of action or recovery under any other provision of law, in the event any accident, causing injury * * * occurs directly or indirectly as a result of any neglect, omission, wilful or culpable negligence of any person or persons in failing to comply with the requirements of any of the statutes, ordinances, rules, orders and requirements of the federal, state, county, village, town or city governments * * * the person or persons guilty of said neglect, omission, willful or culpable negligence at the time of such injury shall be liable to pay any officer, member, agent or employee of any fire department injured * * * while in the discharge or performance of any duty imposed by the * * * superior officer of the fire department * * * not less than one thousand dollars * * * such liability to be determined and such sums recovered in an action to be recovered by any person injured * * * as aforesaid.”

The amended complaint sufficiently pleads a case under that statute since it states that plaintiff while fighting a fire in defendant’s building was injured as the result of defendant’s violation of section 019-161.1 of the New York City Administrative Code which forbids under certain circumstances the use of draperies or curtains made of combustible materials.

Subdivision 2 of section 48 of the Civil Practice Act requires that there be brought within six years ‘ ‘ An action to recover upon a liability created by statute, except a penalty or forfeiture.” Subdivision 3 of section 49 of the Civil Practice Act subjects to a three-year limitation “An action upon a statute for a penalty of forfeiture where the action is given to the person aggrieved or to that person and the people of the state, except where the statute imposing it prescribes a different limitation.” A suit under section 205-a is of course “ an action under a statute ” (see Schmidt v. Merchants Desp. Transp. Co., 270 N. Y. 287, 303-306). The only question is whether it is an action for a penalty. We hold that it is not.

The words ‘ ‘ penalty or forfeiture ’ ’ when used in a Statute of Limitations refer to something imposed in a punitive way for an infraction of a public law and do not include a liability created for the purpose of redressing a private injury, even though the wrongful act be a public wrong and punishable as such (Meeker v. Lehigh Val. R. R. Co., 236 U. S. 412, 423). In Huntington v. Attrill (146 U. S. 657, 668) the Supreme Court, citing several instances of statutorily doubled and otherwise enhanced damages, said that “‘where a statute gives accumulative damages to the party grieved, it is not a penal action. ’ ” It is the intrinsic nature of the exaction that counts and a section 205-a suit is essentially one for compensation to a person injured through a defendant’s fault. The successful plaintiff is awarded his proven damages with a minimum recovery of $1,000. That the recovery may exceed in some instances the actual loss does not make the liability truly penal in nature, any more than it did in Cox v. Lykes Bros. (237 N. Y. 376 [suit on a statute giving a seaman two days’ pay for each day’s wages withheld]). Doubling the amount of workmen’s compensation (Workmen’s Compensation Law, § 14-a) is held not to be the imposition of a penalty (Bogartz v. Astor, 293 N. Y. 563; Matter of Sackolwitz v. Hamburg & Co., 295 N. Y. 264). Similar holdings have been made as to the limitations applicable to suits for overtime, attorney’s fees, etc., under the Federal Fair Labor Standards Act (Walsh v. 515 Madison Ave. Corp., 293 N. Y. 826; Asselta v. 149 Madison Ave. Corp., 65 F. Supp. 385, affd. 156 F. 2d 139, affd. 331 U. S. 199). In each of these cited decisions the courts ruled out “penalty” by applying the true test of whether impressed for punishment or for redress of injury to an individual. A similar test has been applied by the New York courts in regarding as penalties arbitrary exactions, unrelated to actual loss, such as those enforced in Dodge v. Cornelius (168 N. Y. 242), Bell v. Gibson (71 App. Div. 472) and Verona Cent. Cheese Factory v. Murtaugh (4 Lans. 17).

Of course, it is true as was said in Gannon v. Royal Properties (285 App. Div. 131, affd. 309 N. Y. 819) that a section 205-a suit is “ quasi-penal ” since in one sense the recovery “ penalizes ” the violator of a safety law. But the Gavmon case had nothing to do with the Statute of Limitations applicable to such suits.

Since we are holding that plaintiff’s amended complaint was served within the prescribed time we need not consider or pass on his other contention that the allegations of the amended complaint merely amplify or restate those of the original complaint and so are saved from dismissal by section 23 of the Civil Practice Act.

The judgment appealed from should be reversed, with costs in this court and in the Appellate Division, and the matter remitted to Special Term for further proceedings in accordance with the opinion herein.

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

Judgment reversed, etc.


source: Caselaw Access Project

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

license: Public Domain

text:
    In the Matter of Dorothy M. Croshier, Respondent, against Arthur Levitt, as Comptroller of the State of New York, Appellant.
    Argued October 17, 1958;
    decided March 5, 1959.

      Louis J. Lefkowitz, Attorney-General (Milton Alpert and Paxton Blair of counsel), for appellant.
    I. Under the applicable rules of law and judicial precedents, the Comptroller had power to find, and reasonably did find, that the employee’s death was not the natural and proximate result of an “ accident ”. (Matter of Owens v. McGovern, 309 M. Y. 449; Matter of McCadden v. Moore, 276 App. Div. 490, 301 M. Y. 760; Matter of Odell v. McGovern, 308 N. Y. 678; Matter of Morrissey v. McGovern, 1 A D 2d 746; Matter of Rosman v. Levitt, 5 A D 2d 939, 4 N Y 2d 677; Matter of Daly v. State Comptroller, 2 A D 2d 139.)

      Raymond E. Aldrich, Jr., and Russell E. Aldrich for respondent.
    I. The fact findings made by the Comptroller required the legal conclusion that the death of Balph M. Croshier resulted from an accident. (Matter of Owens v. McGovern, 309 N. Y. 449; Matter of Masse v. Robinson Co., 301 N. Y. 34; Matter of Lurye v. Stern Bros. Dept. Store, 275 N. Y. 182; Matter of Burris v. Lewis, 2 N Y 2d 323; Matter of Riehl v. Town of Amherst, 308 N. Y. 212.) II. The death of Ralph M. Croshier resulted from an accident and this is true even though a pre-existing pathology may have been a contributing factor. (Matter of Rankin v. New York State Employees’ Retirement System, 274 App. Div. 160; Matter of Masse v. Robinson Co., 301 N. Y. 34; Matter of Gioia v. Courtmel Co., 283 App. Div. 40, 306 N. Y. 985; Matter of Flammer v. Bethlehem Steel Co., 268 App. Div. 944, 295 N. Y. 817; Matter of Cooper v. Brunswick Cigar Co., 273 App. Div. 1038, 298 N. Y. 731; Matter of Green v. Geiger, 255 App. Div. 903, 280 N. Y. 610.) III. As a matter of law, the Comptroller made an erroneous determination and, therefore, under the applicable rules of law and judicial precedents the Appellate Division’s decision annulling the Comptroller’s determination was correct and should be affirmed. (Matter of Morrissey v. McGovern, 1 A D 2d 746; Matter of Odell v. McGovern, 283 App. Div. 585, 308 N. Y. 678; Matter of McCadden v. Moore, 276 App. Div. 490, 301 N. Y. 760; Matter of Rosman v. Levitt, 5 A D 2d 939.)
   Fuld, J.

Ralph Croshier had for many years been a Forest Ranger for the State Conservation Department. As such, he was engaged in the fighting and suppression of fires, frequently in thickly wooded, rough and hilly terrain, and, on occasion, for long periods of time. In October of 1953, when he was 57 years old, he had a mild cardiac insufficiency and then, several months later, suffered a myocardial infarction which hospitalized him for several weeks. When he returned to his duties in March of 1954, although advised by his doctor to take things easy and restrict himself to supervisory work, he continued to perform the very strenuous, albeit usual, activities expected of Forest Rangers. Then, about a year later, on April 11, 1955, he participated in extinguishing what was described as an “ average, nasty * * * little ” forest fire on a steep hill and, shortly after he had ceased his efforts, he collapsed and died from a heart attack.

Croshier had been a member of the New York State Employees’ Retirement System, and his widow, claiming that his death was the result of an “ accident ’ ’ sustained in the performance of his duties, applied for the payment of accidental death benefits pursuant to section 61 of the Retirement and Social Security Law. The Comptroller, as head of the Retirement System, rejected the claim, finding that Croshier “ died of an attack of coronary occlusion secondary to a pre-existing pathological condition of coronary arteriosclerosis and anteroseptal myocardial infarction”, that his fire fighting activities “precipitated ’ ’ such attack, that he sustained no accident in the performance of his duties and that his death was caused by none. The Appellate Division annulled the Comptroller’s determination, indicating that it believed such conclusion compelled by our decision in Matter of Owens v. McGovern (309 N. Y. 449).

Section 61 of the Retirement and Social Security Law provides that an “ accidental death benefit ” shall be payable upon the death of a member if the Comptroller shall determine that he died before the effective date of his retirement 1 ‘ as the natural and proximate result of an accident sustained in the performance of duty ” (subd. a) and section 74 declares, that the Comptroller shall have “ exclusive authority ” to determine all applications for such a benefit (subd. b). The question thus presented is whether, despite this broad grant of authority to the Comptroller, the courts are required to annul his determination that a heart attack, precipitated by physical exertion on the part of the victim in the performance of his usual and customary work, voluntarily undertaken, is not an accident.

No all-inclusive definition of “ accident ” is possible, nor any formulation of a test applicable in every case, for the word has been employed in a number of senses and given varying meanings depending upon the relevant context. In this State, the question of whether one has suffered an accident has been considered in at least three different areas—in the field of accident insurance, of workmen’s compensation and of retirement system benefits — and in each instance somewhat different criteria have been stressed in arriving at the answer.

Although no great reliance may here be placed upon the accident insurance cases — reflecting an interpretation least favorable to the claimant — since their outcome turns on the particular language of the policy, it might well be thought that the same phrase found in two statutes dealing with related subject matter should receive identical interpretation and application. In point of fact, that was the position taken by this court in 1937, when it explicitly held that a decision of the Industrial Board (under the Workmen’s Compensation Law) that an injury was accidental was “ binding” upon the medical board of the Retirement System. (Matter of Nash v. Broohs, 276 N. Y. 75, 82; see Matter of Slattery v. Board of Estimate & Apportionment, 271 N. Y. 346, 353.) The Legislature, however, changed the law in 1938 to provide that the Comptroller was to have ‘ ‘ exclusive authority ’ ’ to determine all applications for any form of benefit under the retirement provisions (Civil Service Law, former § 54, subd. 5; L. 1938, ch. 577; now contained in Retirement and Social Security Law, § 74, subd. b; § 61, subd. a) and that No decision ” by the Workmen’s Compensation Board shall be binding” on the Comptroller in the matter of determining a claimant’s eligibility for an accidental disability or death benefit (Civil Service Law, former § 67, as amd. by L. 1938, ch. 407) and it added a provision in 1945 reciting that a “ final determination ” of the Board that “ benefits are payable pursuant to the workmen’s compensation law by reason of accidental disability or death of a member of the retirement system shall not in any respect, be or constitute, a determination that an accidental disability retirement allowance or death benefit is payable pursuant to the provisions of this article by reason of the accidental disability or death of such member ” (former § 67, subd. 3; L. 1945, ch. 714; now contained in Retirement and Social Security Law, § 64, subd. b).

Having in mind these significant amendments, the variant purposes sought to be achieved by workmen’s compensation and retirement system benefits and the very marked difference in the size of the respective payments, it “ seems reasonably clear ”, as Presiding Justice Fosteb wrote several years ago, 1 ‘ that a different social philosophy was envisaged by the Legislature for benefits under the Civil Service Law than it had in mind for benefits under the Workmen’s Compensation Law. * * * There is quite a distinction between the situation of an ordinary workman and a civil servant; and the Comptroller is dealing with a fund quite different than insurance designed to protect workmen and shift the burden imposed by industrial accidents to industry as a whole. Inherent in this is the suggestion at least that the Comptroller * * * is not bound to accept the tests usually applied in compensation eases.” (Matter of Odell v. McGovern, 283 App. Div. 585, 587, affd. 308 N. Y. 678.) But whatever the considerations, whether based on “ a different social philosophy ” or not, there is no doubt that the Legislature did overrule this court’s decisions in Nash and Slattery and deliberately elected to vest in the Comptroller the “ exclusive authority ’ ’ of deciding whether there had been an accident so as to entitle the claimant to payment of accidental disability or death benefits from the Retirement System. (See, e.g., Matter of McCadden v. Moore, 276 App. Div. 490, affd. 301 N. Y. 760; Matter of Odell v. McGovern, 283 App. Div. 585, affd. 308 N. Y. 678, supra; Matter of Rosman v. Levitt, 5 A D 2d 939, motion for leave to appeal denied 4 N Y 2d 677; Matter of Morrissey v. McGovern, 1 A D 2d 746; see, also, Matter of Daly v. State Comptroller, 2 A D 2d 139, 143.)

In Matter of McCadden v. Moore (276 App. Div. 490, affd. 301 N. Y. 760, supra), for instance, a police officer became disabled following a heart attack brought on by overexertion shoveling snow in the performance of his duty. His application for accidental disability benefits as a member of the Retirement System was denied by the Comptroller who found — contrary to the finding actually made thereafter by the Workmen’s Compensation Board — that the employee had not sustained an accident. The Appellate Division confirmed that determination and, in the course of its opinion, wrote that, although “ numerous cases could be cited in which awards have been affirmed by the appellate courts for a heart condition brought on by over exertion ”, the amendments to the Civil Service Law, to which we above referred, made it manifest that the duty of determining the question of fact as to whether or not an employee has sustained an accidental injury is for the Comptroller ” (276 App. Div., at p. 494). This court affirmed, concluding that confirmation of the Comptroller’s finding of no accident was required, despite the fact that it was the employee’s exertion in the course of his work which precipitated the coronary occlusion resulting in his disability.

To be educed from the McCadden case and those that followed is the principle that it is for the Comptroller to determine whether or not the employee had sustained an accidental injury and that, in making this finding, he is not bound by the accident concept adopted by the Workmen’s Compensation Board or by the test laid down in Matter of Masse v. Robinson (301 N. Y. 34) for compensation cases. Implicit in these decisions is the recognition that, while it may not have been unreasonable for the Compensation Board to regard heart attacks as accidental if the employee, by miscalculating his own strength, inadvertently hastened his own death by exertion, it was not, on the other hand, unreasonable for the Comptroller, in administering the Retirement System, to insist upon a stricter test and conclude that a heart attack precipitated by physical exertion or emotional strain on the part of the victim in the performance of his usual duties, voluntarily undertaken, is not the result of an accident. In other words, ‘1 If reasonable minds might fairly differ” as to whether there was or was not an accident, “ the Comptroller’s independent judgment must be accepted ”. (Matter of Odell v. McGovern, 308 N. Y., at p. 680.)

That the medical and physiological facts are not seriously in dispute does not convert the ultimate issue of whether the death was the natural and proximate result of an accident ” into a pure question of law on which this court has the final word. The inferences to be drawn from the testimony partake sufficiently of factual considerations to require us to respect the legislative direction that the Comptroller shall have “ exclusive authority to determine all applications for any form of retirement or benefit ”, when his conclusion is not unreasonable.

It is noteworthy that in the cases decided under the Workmen’s Compensation Law this court did nothing more than accept the Board’s finding, of accident or no accident, solely upon the ground that there was evidence to support it. Recognizing the rule which accords conclusiveness to administrative determinations, we never indicated that the Board’s finding that the employee had sustained an accident was compelled as a matter of law. The Comptroller stands as a trier of fact in the same position as the Board, and we will not announce a different rule for the findings which that official makes in carrying out the provisions of the Retirement Law.

The Appellate Division, in reaching a contrary conclusion, was of the opinion that this court had, in Matter of Owens v. McGovern (309 N. Y. 455, supra), indicated a narrower scope for the Comptroller’s determination. In that case, upon somewhat similar facts, we reversed a determination by the Comptroller, remitting the proceeding to him, because he had declined to admit the medical testimony offered on behalf of the claimant, but nothing we there decided or said was intended to change the law, firmly established long before Matter of Owens. Although, in the light of the arguments now advanced, the concurring opinion in Owens — the only one to which a majority of the court adhered—might have been clearer on the point, it does not suggest that the Comptroller, or the courts in reviewing his determination, would have to find that the employee sustained an accident if he overtaxed himself in doing his work. Indeed, as we actually wrote, if the findings and conclusions are supported by the record, then, the courts have no alternative but to accept them * * * even though such a course might * * * lead to a result at odds with that reached by the Workmen’s Compensation Board ” (309 N. Y., at p. 458). This is such a case.

The order of the AppeHate Division should be reversed, without costs, and the Comptroller’s determination confirmed.

Dye, J. (dissenting).

On this appeal we review a determination of the State Comptroller, made after a hearing before a Deputy Comptroller, which denied a widow’s claim for death benefits based on the accidental death of her husband while in the performance of his duties as a Forest Ranger in the State Department of Conservation. The claim was disapproved because the hearing officer concluded that the decedent’s death was not due to accident and this, notwithstanding that he had found as a fact that the decedent’s activities had precipitated the attack of coronary occlusion resulting in his death ’ ’.

This decisional paradox is about to be resolved on the theory that the Legislature has endowed the Comptroller, acting through his deputy, with a unique type of juridical discretion whenever called upon to determine claims for benefits arising under the Retirement System and this, because the Legislature has said that a prior final determination by the Industrial Board “ shall not in any respect, be or constitute, a determination that an accidental disability retirement allowance or death benefit is payable pursuant to the provisions of this article by reason of the accidental disability or death of such member.” (Civil Service Law, former § 67, subd. 3.) While the Legislature thus excused the Comptroller from being bound by a prior determination of the Industrial Board attributable to the same accident, they did not thereby say that, in making a determination, he was no longer bound to follow accepted rules governing the making of decisions. On the contrary, when the Legislature gave the Comptroller “ exclusive authority to determine all applications for any form of retirement or benefit provided ” under the retirement statutes (Retirement and Social Security Law, § 74, subd. b), which includes a claim such as this, it was not a carte blanche permission to do as he pleased. To make sure such freedom would not be abused, the Legislature also specifically provided that the Comptroller was to make his determination “ on the basis of the evidence ” (Retirement and Social Security Law, § 61, subd. a). They thus embedded in the statute a rule of law which is fundamental to an orderly settlement of any controversy, whether tried in a court, by an administrator or other designated authority. In deciding as he did, the Deputy Comptroller has ignored this fundamental statutory precept to draw a conclusion of law contrary, not only to all the evidence on the issue, but contrary as well, to his own findings of fact.

The uncontradicted testimony of the eyewitnesses to the happening of the event and the testimony of the medical witnesses, both by those in attendance and in the opinion of experts, all add up to the conclusion that the decedent met his death by accident in the performance of his duties. According to such proof — and the findings of fact based thereon—the decedent had a mild cardiac insufficiency in October, 1953 which passed over, but later on and between December 7 and 24, 1953 he was hospitalized and treated for ‘ ‘ anteroseptal myocardial infarction ”. He returned to his duties as a Forest Banger in March, 1954, at which time his activities were restricted “ to doing only supervisory work ”.

On the day in question, April 11, 1955, during the forenoon he responded to a number of permit fires and false alarms. In the afternoon he responded to a fire alarm in a hilly region near Dean Boad, Putnam County. The fire was in a steep, woody and very rough terrain. To reach the area of the fire, the decedent had to cross a brook and climb through boulders and thick underbrush to “ a steep hill approximately 400 feet high ”. The decedent fought the fire for approximately two hours, during which time he carried on his back an Indian tank with hose weighing about 40 pounds, a long rake weighing 8 or 9 pounds and a hook. The fire was a bad one, requiring the services of the decedent and about 20 to 25 volunteer firemen to extinguish. As was his custom, the decedent stayed behind to make certain that the fire would not break out anew. He asked one of the volunteers to stay with him, saying: “ I am not feeling so good.” At that moment he collapsed and died before aid could reach him. It was this extraordinary physical exertion that ‘ ‘ precipitated the attack of coronary occlusion resulting in his death ”, a fact which the Deputy Comptroller has found. It was not‘ performed in the course of decedent’s usual customary work voluntarily undertaken ” as a majority are about to hold, but was in excess of and over, above and beyond the light duties prescribed for this decedent as a condition on which he returned to work following his disabling heart attack in 1954. As we have seen—and as the Deputy Comptroller has found—his activities were restricted “to doing only supervisory work”. “ On the basis of the evidence ” thus adduced and on the Comptroller’s own findings of fact based thereon, the only conclusion of law reasonably to be drawn therefrom was accident. While it is true accident is nowhere precisely defined, it does not follow that it is a term without meaning. It is a word in common everyday usage and is generally understood to mean an event of an unfortunate character that takes place without one’s foresight or expectation, an undesigned sudden event, a mishap, a mischance, a calamity of catastrophy, a happening not in the usual course; fortuitously, unforeseen and without cause (Webster’s Standard Dictionary, Oxford, Funk & Wagnall’s). It is a term of general import to be tested as to meaning by common usage of speech and understanding (United States Mut. Acc. Assn. v. Barry, 131 U. S. 100; Bird v. St. Paul Fire & Mar. Ins. Co., 224 N. Y. 47; Lewis v. Ocean Acc. & Guar. Corp., 224 N. Y. 18) and, as we ourselves have said, “ is to be determined not by any legal definition, but by the common-sense viewpoint of the average man” (Matter of Masse v. Robinson Co., 301 N. Y. 34, 37). While that statement was made in a case arising under the Workmen’s Compensation Law, it was neither a radical nor different enunciation of applicable law nor did we intend to confine it to the facts of that case. We deemed it a good definition then and nothing has happened in the meantime calling for a change. Section 64 of the Retirement and Social Security Law in essence simply says that a prior Workmen’s Compensation Board determination “ shall not in any respect be, or constitute a determination ” of a claim arising under the Retirement System attributable to the same accident. The statute does not say and there is nothing in its wording suggesting that the Comptroller has inherent power to disregard sound legal concepts simply because such concepts may also be applied in a compensation case, which is not at all the same as saying that he is not bound by a determination made by the Workmen’s Compensation Board in the same case. The Comptroller may not ignore commonly accepted criteria and substitute a rule of his own. When he does so, he commits error as matter of law.

Here, the forest fire leading to the decedent’s untimely death was wholly unforeseen. It was sudden, unexpected and without foreseeable cause. It was catastrophic; as the hearing officer himself described it, “ nasty ” and “ mean ”; it was an emergency and required unusual physical effort to control. The decedent was restricted to light duty because of a pre-existing heart condition, which his employer well knew. In responding to this sudden emergency, he so overtaxed his strength that he died, or, as the Deputy Comptroller himself expressed it, precipitated the attack of coronary occlusion resulting in his death Such an unforeseen, sudden and unusual event culminating in the tragic death of the principal actor was accident by any accepted criteria. Had the deceased been burned to death under the same or similar circumstances, there would be no room for reasonable men to differ. How can it be said that a coronary occlusion precipitated by this catastrophic event is any less an accident?

As has been said, the Deputy Comptroller, backed by all the testimony, both eyewitness and medical, has found causal relation to the death. In such posture, the question whether there was an accident within the statute became a question of law. The findings of the Comptroller made “ on the basis of the evidence ” require him to answer, as matter of law, that the member died “ as the natural and proximate result of an accident sustained in the performance of duty in the service upon which his membership was based ” (§ 61, subd. a). He was not free to say that, because the decedent had a pre-existing heart condition, extraordinary physical exertion in excess of his strength performed in an unforeseen sudden and unexpected emergency arising in the course of his duties resulting in death was not accident. To so determine was error as matter of law under both the statute and decisions. When the Legislature made provision for payment of accidental death benefits to a widow of a deceased employee, it contemplated that such claims would be dealt with in accordance with the evidence. It did not intend that the Comptroller or his deputy should cancel it out by making a determination contrary to the evidence and the facts as actually found. The Legislature intended that the Comptroller and his deputy—like any other trier of the fact — should make a decision on the basis of the evidence ” 61, subd. a).

For these reasons, I vote to affirm the order appealed from, with costs.

Desmond, J. (dissenting).

I concur for affirmance with the Chief Judge and Judge Dye.

All the proof before the Comptroller’s hearing officer was that the fatal heart attack was caused by unusual work effort in an emergency forest fire situation. The hearing officer made a finding that it was so caused. Then, having found as a fact on undisputed evidence all the elements of an accidentally caused death, he “ determined ” that there had been no accident. The Appellate Division took action against this logical impossibility and legal absurdity by unanimously reversing the Comptroller’s determination on the law and directing him to make an award as he was obligated by law to do on the undisputed proof and on his own findings.

This is not a ease where a quasi-judicial tribunal exercised its statutory power in making its own choice between the available findings on disputed proof. No one disputes that power. But here the tribunal settled no dispute, resolved no conflict. It just simply refused to make an award in accord with the evidence and in accord with its own fact findings.

The only explanation for this extraordinary result is that the officer had made a general policy decision to refuse awards in all cardiac cases, regardless of proof or findings. Such an attitude or policy was of course not open to him. The idea that there is a difference in social philosophy ” between the Workmen’s Compensation Law and the Retirement and Social Security Law has never been announced by the Legislature or accepted by this court. Whatever that vague and spacious term may mean, it can hardly justify the assumption by an executive of the State of power to reject claims according to his special ad hoc views of whether the Retirement Fund should from time to time be invaded or conserved. If such power resides in the Comptroller’s deputy, the Legislature has as to this matter left without protection the more than 200,000 members of the State Retirement System.

Chief Judge Conway (dissenting).

I agree with Judges Dye and Desmond for affirmance.

It seems to me that this case was decided by the Deputy Comptroller before he came to the decision-rendering stage. What the decision had to be was conclusively determined by his own finding. He found as a fact that the activities of the deceased immediately prior to his cardiac affliction, all of which took place in the performance of duty, ‘ precipitated the attack of coronary occlusion resulting in his death.”

The statute awards accidental death benefits if the comptroller shall determine, on the basis of the evidence,” that the deceased ‘ Died * * * as the natural and proximate result of an accident sustained in the performance of duty * *

The Deputy Comptroller tells us that the activities of the deceased “ precipitated ” the attack, and few if any words could he have chosen for a more decisive indication of cause and effect. Webster’s New Collegiate Dictionary (1953) defines the verb ‘ ‘ precipitate ’ ’ thus:. “ 1. To throw or dash headlong; cast or hurl down, as from a precipice. 2. To move very rapidly; to urge or press on with haste or violence; to cause to happen suddenly, unexpectedly, or too soon * *

I will not assume that the Deputy Comptroller had insufficient vocabulary to express his findings. He found that the deceased’s heart attack was urged on with haste or pressed on with violence or caused suddenly or unexpectedly by duties he was performing as a most integral part of his job. If we need not now hold that the deceased died as the natural and proximate result of an accident sustained in the performance of duty”, then we can never in any case hold that a man who breathes his last breath because of a heart attack leaves anything by way of right against his employer for it, because it could not be held to be an occurrence in the course of his employment. That of course is contra numerous of our cases, which have had sufficient citation in the opinions of Judges Dye and Fulb to obviate repetition here. Were this a question of evidence, I would not disturb the conclusion; but the evidence invited a finding that the deceased’s activities did cause the occlusion, and the Deputy Comptroller could not and did not resist such finding. The statute does not admit, immediately thereafter, of the conclusion that deceased ‘ ‘ did not sustain an accident. ’ ’ The statute does not license the hearing officer to rewrite the dictionary.

The fire and deceased’s activities during it were as much a cause of his death as had a tree fallen on him or the flames taken hold of him. It would be no answer to say that a younger and faster man could have eluded the falling tree or reached water in time. So it is no answer to say that this man would have survived had his heart been a bit stronger. Had the State any physical requirements to impose upon those fighting forest fires, it should have insured that all such employees fulfilled them. We are not told that the deceased concealed his previous cardiac difficulties. If a man is permitted to confront duties which may constitute a strain upon him, the permitter should not punish the man’s widow because he executed those duties in disregard of the strain. The State does not contend that the deceased should have stood still at the bottom of the hill and watched the fire spread; it permitted him to function as a Forest Banger and could not then contemplate that he would not perform duties as such.

I find it difficult to appreciate the majority’s accentuation of the fact that this was deceased’s “ usual customary work, voluntarily undertaken ”. (Italics supplied.) By that it is not to be understood that he was a “ volunteer fireman” with the choice of going to the fire or not, as his whim dictated. It was deceased’s assigned task to be at those fires. On the day in question he had just begun his afternoon meal when his special radio — and he had one in his home and one in his truck with the latter in operation all times ” — called him to attend the fire in question. The call came from an observer whose duty it was to make such calls. Had deceased refused to attend the fire he might have jeopardized his position. There was nothing ‘ ‘ voluntary ’ ’ about his being there.

If ‘ voluntarily undertaken ’ ’ be read as an allusion to the fact that no one compelled the deceased to engage in such occupation, the answer is that no one in this country is compelled to work in any civilian occupation. That is no ground for denying accidental death benefits to a victim’s survivor. If a man did not build skyscrapers, or tunnels, or unload ships, he would not have fallen 40 stories, or drowned, or been crushed by a defective boom. So a peace officer would not have been shot by a thief if he had taken employment that did not compel him to pursue one. Whatever benefits there be for the survivors of such men are not afterwards denied because the misfortune that ensued was a possibility from the beginning.

Some occupations are sedentary; others involve physical labors. The health of a given individual may be below par, but nonetheless quite adequate to keep him at his job. The State’s own expert testified that it is not at all rare to advise a man who has had cardiac difficulties to return to his “ previous occupation ” and that heavy exertion is not uniformly prohibited; that the course “ would have to be left to the individual cardiologist ”; that it depends on the individual’s personality and makeup; that there are people who, if you limit them too much, you are doing more harm to them than as though you allow them to go ahead.” And the same doctor, testifying, we should remember, for the State, said of the deceased: “ This man then did well, being back at work and. carrying on his activities until the day in question, when, after attending several fires and climbing a steep hill, he collapsed.”

The advice that the deceased received and his own judgment in appraising it obviously impelled him to gauge the possibilities and to conclude that the job was not too much for him. No one can avoid the inference that the deceased felt himself able to continue his usual duties; to draw a contrary inference is to say that he went back to work with the intention of overtaxing his heart. Certainly this man was at work voluntarily; so was every man whose survivor has received accidental death benefits. Death is always brought about by the failure of some indispensable part of the being’s anatomy; the question always is: what brought on the failure? This man was not at home in bed, concluding an inactive day, when his heart gave out; he was in the very process of executing his duties. His end was brought about in the performance of those duties, a performance compelled by an accident of circumstance: “ a nasty, mean, forest fire”. That is the finding, and the conclusion of law thereafter constructs itself. The scheme of the statute, upon such finding, leaves no room thereafter for discretion; hence the reversal proposed by the majority does not amount to mere approval of a discretion lodged by statute. It amounts to the judicial delegation of legislative power to an agency. Our function is not so comprehensive, In my judgment we have no course but to affirm.

Judges Froessel, Van Voorhis and Burke concur with Judge Fuld; Chief Judge Conway and Judges Desmond and Dye dissent in separate opinions in which each concurs.

Order reversed, etc.

      . See Schecter v. Equitable Life Assur. Soc. of U. S., 275 App. Div. 958, motion for leave to appeal denied 300 N. Y. 763; Wilcox v. Mutual Life Ins. Co., 265 N. Y. 665; see, also, Burr v. Commercial Travelers Mut. Acc. Assn., 295 N. Y. 294, 305; Silverstein v. Metropolitan Life Ins. Co., 254 N. Y. 81, 85.

      . See Matter of Masse v. Robinson, 301 N. Y. 34; Matter of Kehoe v. London Guar, & Acc. Ins. Co., 303 N. Y. 973.

      . See Matter of McCadden v. Moore, 276 App. Div. 490, affd. 301 N. Y. 760, and other cases cited, infra, p. 264.

      . Under the Retirement and Social Security Law, the fact that an employee sustained an accident bears not on coverage, but solely on the quantum of benefits to be paid; when an employee dies, his beneficiary will receive benefits even though death was not caused by an accident. Under the Workmen’s Compensation Law, however, there is no coverage whatsoever for the death of an employee (excluding eases of occupational disease) unless it was accidentally occasioned. The desire to give an employee the benefit of the statute’s coverage undoubtedly prompted the Board to utilize the more easily satisfied test of accident applied in the Masse case.


author: Froessel, J.

text:
    In the Matter of the Arbitration between Milton L. Ehrlich, Incorporated, Respondent, and Unit Frame & Floor Corporation, Appellant.
    Submitted January 6, 1959;
    decided March 5, 1959.

      Caesar L. Pitassy for appellant. There is a valid agreement between Unit Frame and Ehrlich to arbitrate the question of nonpayment.
    The arbitration must proceed. (Matter of United Culinary Bar & Grill Employees [Schiffman], 272 App. Div. 491, 299 N. Y. 577; Matter of Delphi Mfg. Co. v. Rosenblum, 15 Misc 2d 337; Matter of Kosoff [“Jones”], 276 App. Div. 621; Chestnut v. Master Labs., 148 Neb. 378; Matter of Lehman v. Ostrovsky, 264 N. Y. 130; Matter of Writers Guild of America East [Prockter Prods.], 1 N Y 2d 305; Matter of Eagar Constr. Corp. v. Ward Foundation Corp., 255 App. Div. 291; Matter of Layton-Blumenthal [Wasserman Co.], 280 App. Div. 135; Matter of Paloma Frocks [Shamokin Sportswear Corp.], 3 N Y 2d 572.)

      Bernard H. Goldstein and Edward L. Sadowsky for respondent.
    I. There is no arbitrable dispute under the Ehrlich contract. (Matter of Lehman v. Ostrovsky, 264 N. Y. 130; Matter of Writers Guild of America East [Prockter Prods.], 1 N Y 2d 305; Matter of Eagar Constr. Corp. v. Ward Foundation Corp., 255 App. Div. 291; Matter of Arthur Philip Export Corp. [Leathertone, Inc.], 275 App. Div. 102; Matter of Brookfield Clothes [Rosewood Fabrics], 4 A D 2d 458.) II. Even if there were an arbitrable dispute under the Ehrlich contract, then the parties who can claim arbitration are the stockholders of Swiss Construction Corporation who are now the real parties in interest. (Whiting v. Glass, 217 N. Y, 333; Board of Educ. v.
      Board of Educ., 76 App. Div. 355, 179 N. Y. 556; Matter of Eimco Corp. [Deering, Milliken & Co.], 6 Misc 2d 422.)
   Froessel, J.

On June 28, 1956 respondent contractor, a domestic corporation (hereinafter called Ehrlich), entered into a written contract with appellant subcontractor, a domestic corporation (hereinafter called Old Unit Frame), whereby the latter agreed to construct certain concrete structures at a shopping center in Dover, New Jersey. Article XXIV of the contract provided for arbitration by the American Arbitration Association “where a controversy shall arise under this Contract ”, and the parties could not themselves amicably adjust the dispute within five days after either served upon the other a written notice of a desire to arbitrate. The arbitration clause did not apply to matters which the parties agreed would be resolved by the architect, nor to certain specified articles of the contract, including article XI forbidding assignment of the contract, as to which ‘ the parties shall have their remedies as provided by law ”.

On April 30, 1957, while the construction work was in progress, the directors and stockholders of Old Unit Frame, at a joint meeting, unanimously agreed to change the name of the corporation to Swiss Construction Corporation and then voluntarily dissolve, distribute the assets to the stockholders in kind, and form a new corporation under the original name — Unit Frame & Floor Corporation (hereinafter called New Unit Frame). These resolutions were thereafter carried out, allegedly without the knowledge or consent of Ehrlich, and the assets of the dissolved corporation were distributed to the stockholders “ subject to its liabilities ”. The stockholders, as alleged by Old Unit Frame’s president, who had originally signed the Ehrlich contract, then “ agreed among themselves for the procedure whereby the unperformed portions of Old Unit Frame’s contracts, including specifically the contract with Ehrlich, would be completed ” so as “to fulfill the obligations of Old Unit Frame under its agreements and under Section 29 of the General Corporation Law and Section 105(8) of the Stock Corporation Law ’ ’.

The Ehrlich contract was then completed by the stockholders, the benefit of which Ehrlich received, and on October 23, 1957, after Ehrlich refused to pay the balance due, a written demand for arbitration was served on Ehrlich and filed with the American Arbitration Association. The demand alleged that Unit Frame & Floor Corporation (subsequently amended to read “ Swiss Construction Corporation, formerly known as Unit Frame and Floor Corporation ”), “a Party to an Arbitration Agreement contained in * * * a written contract, dated June 28, 1956 ”, demanded arbitration of the following dispute: ‘ ‘ Milton L. Ehrlich, Incorporated, has failed to pay invoices of Unit Frame and Floor Corporation in the total amount of $147,606.35 ” and quoted the arbitration clause of the Ehrlich contract.

After receiving the demand for arbitration, Ehrlich moved to stay the arbitration on the principal ground that arbitration proceedings had been initiated by New Unit Frame, with whom it had no contract. It was perfectly clear, however, that the arbitration was initiated by Old Unit Frame, and the lower courts properly held that the new corporate entity was in no way involved. Ehrlich has now abandoned that claim.

Ehrlich’s second claim was that article XI of the contract prohibited Old Unit Frame from delegating performance to anyone without the consent of Ehrlich, and that, by breaching the agreement “on a matter which the Ehrlich contract says is not arbitrable ”, Old Unit Frame “forfeited the right to have the performance ” of its stockholders adjudicated in arbitration proceedings. In this connection, Ehrlich alleged that, as a result of the negligent performance of the post-dissolution work, it had a claim for the cost of rectifying the improper work and for damages in consequence.

The issue before us is whether the dissolution of Old Unit Frame and the subsequent distribution of its assets to its stockholders “ subject to its liabilities ” precluded the dissolved corporation from invoking the arbitration clause of the Ehrlich contract.

We think it clear, at the outset, that under section 29 of the General Corporation Law, and subdivision 8 of section 105 of the Stock Corporation Law, a dissolved stock corporation may participate in arbitration proceedings as an incident to winding up its affairs and discharging its obligations. The fact that subdivision 8 of section 105 of the Stock Corporation Law was amended, subsequent to the decision of this case by the courts below, so as expressly to provide that a voluntarily dissolved stock corporation may ‘£ participate in arbitration proceedings ’ ’ as well as sue and be sued * * * in its corporate name ’ is no argument to the contrary, as the amendment was merely a recognition of existing law. Since arbitration is but a substitute for the judicial process, with the parties creating their own forum and picking their own judges, a dissolved corporation which, by law, was enabled to sue in its corporate name would likewise be endowed with the capacity to participate in arbitration proceedings. This was recognized in Matter of Kosoff (“ Jones ”) (276 App. Div. 621, 624, affd. 303 N. Y. 663) where a motion to stay arbitration was granted only because the court found that there was no arbitrable dispute, and was explicitly held in Matter of Delphi Mfg. Co. v. Rosenblum (15 Mise 2d 337, 338-339), where, in denying the right of a dissolved corporation to set up its voluntary dissolution as a bar to arbitration, the court emphasized “ that the Legislature of this State did not intend voluntary dissolutions to be a vehicle for the avoidance of pre-existing contractual obligations and liabilities.” (See, also, Hudak v. Hornell Ind., 304 N. Y. 207, 213-214.)

Inasmuch as Old Unit Frame could not have pleaded its voluntary dissolution as a bar to arbitration, it likewise follows that it is entitled to the benefits of the arbitration clause, and that Ehrlich may not take advantage of the dissolution to escape the contractual method agreed upon by the parties to settle their disputes. Old Unit Frame continued to exist as a legal entity, after its dissolution, for as long as was necessary to wind up its business affairs and discharge its existing obligations and, as the court said in Stentor Elec. Mfg. Co. v. Klaxon Co. (115 F. 2d 268, 270, revd. on other grounds 313 U. S. 487) in interpreting the predecessor of subdivision 8 of section 105 of the Stock Corporation Law, ££ That an existing contract is an obligation seems too certain a proposition to require extensive argument or marshalling of authorities to prove it.”

In reversing Special Term and granting the motion to stay arbitration, the Appellate Division did not dispute the proposition that “the corporate entity survives dissolution for the purpose of the collection of assets due to the corporation ’ ’, but did not “ see its applicability here ”, since it was not the dissolved corporation but its stockholders who completed the contract. The court apparently felt that the distribution of its assets to the stockholders constituted an “ assignment ” in violation of article XI of the contract, and reasoned that “ The demand for arbitration or for payment cannot be made by the corporate entity which no longer has an interest in the contract.” It emphasized the fact that “ The papers ” (apparently the motion papers) did not indicate “ that the collection of any moneys due for work performed under the contract was reserved to the corporation ”, and concluded: “It must be assumed therefore that the corporation divested itself of the right to collect such funds by the transfer of the contract.” (Emphasis supplied.)

We think it clear that the distribution of the Ehrlich contract to the stockholders of Old Unit Frame and its subsequent completion by them was merely incident to winding up the business affairs of the dissolved corporation and discharging its existing obligations. The dissolved corporation could not, under the law, transfer or assign its obligations under the contract, nor discharge itself from liability for nonperformance, and its stockholders were not only empowered to complete the contract on behalf of the corporation but indeed were duty-bound to do so. There is no evidence of a formal assignment of the contract from the corporation to its stockholders, and even the Appellate Division noted that the transfer of the contract to the stockholders “ Presumably * * # was done pursuant to section 29, which authorizes the directors to distribute the assets remaining after the payment of debts and expenses.”

The decision of the Appellate Division seemed to turn on the fact that Old Unit Frame did not retain ” the contract and complete it in its corporate capacity, but left it to its stockholders to complete. Under the circumstances disclosed by this record, this strikes us as a distinction without a difference, and was obviously of no moment to Ehrlich during the several months in which the construction work was completed. There apparently was no change in personnel or performance after Old Unit Frame dissolved, as Ehrlich stated that it was not aware of any change before service of the demand for arbitration. As the general contractor, Ehrlich presumably exercised the right to “ every reasonable, safe and proper facility for inspecting the work” during its progress and up to the date of final completion guaranteed it by article IX of the contract. For “ all practical purposes, the corporation was the [stockholders], the [stockholders] the corporation ” (Matter of Shea, 309 N. Y. 605, 617-618).

Moreover, subdivision 7 of section 105 of the Stock Corporation Law commands a corporation which voluntarily dissolves without judicial proceedings ‘1 to distribute the remainder of its assets among its stockholders ” “ after paying and adequately providing for the payment of [its] liabilities and obligations ”. There is no evidence that Old Unit Frame was insolvent or had not satisfied any creditors it may have had prior to dissolution. By distributing the Ehrlich contract, which it regarded as an asset, to its stockholders, the very owners of Old Unit Frame (Matter of Shea, supra, p. 617), who at the same time agreed upon “ the procedure whereby the unperformed portions of Old Unit Frame’s * * * contract with Ehrlich, would be completed ”, the dissolved corporation adequately provided for the discharge of its existing obligations and thus complied with the statute.

Had the stockholders of Old Unit Frame defaulted on the contract and not completed it, it is quite obvious that the corporation could not have set up its dissolution as a bar to arbitration of a claim for damages by Ehrlich, since it continued liable on the contract after dissolution (see General Corporation Law, § 29; Stock Corporation Law, § 105, subd. 8; Matter of Delphi Mfg. Co. v. Rosenblum, supra, p. 337). Inasmuch as the stockholders completed the contract on behalf of their own corporation, it follows that Ehrlich cannot avoid its contractual obligation to arbitrate by pleading the transfer of Old Unit Frame’s assets to the stockholders following corporate dissolution. Old Unit Frame seeks only to arbitrate the issue of nonpayment and not the legal effect of its dissolution, and it is conceded that this issue is within the compass of the arbitration clause. The fact that Ehrlich alleges a counterclaim for defective performance cannot defeat Old Unit Frame’s right to arbitration, since, as we noted in Matter óf Lipman (Haeuser Shellac Co.) (289 N. Y. 76, 80-81): The question of performance goes to the merits, and that, the parties have consented to have decided by the arbitral tribunal.” If the counterclaim is sustained before the arbitrators, it may be offset against Old Unit Frame’s claim.

The order of the Appellate Division should be reversed and that of Special Term reinstated, with costs in this court and in the Appellate Division.

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

Order reversed, etc.


author: Desmond, J.

text:
    The People of the State of New York, Appellant, v. Leon L. Cohen, Respondent.
    Argued November 11, 1958;
    decided March 5, 1959.

      Harry L. Rosenthal, District Attorney (John C. Little, Jr., of counsel), for appellant.
    I. Analysis of the indictment shows all nine counts charged defendant with false and fraudulent acts. (People v. Peckens, 153 N. Y. 576; People v. Lobel, 298 N. Y. 243.) II. The indictment having alleged false and fraudulent acts (representations and pretenses), and two of them having been proven false, then evidence of related pretenses in the chain of circumstances in the transactions involved which led to the payment of the loss were clearly admissible. (People v. Thau, 219 N. Y. 39; People v. Marrin, 205 N. Y. 275; People v. Dales, 285 App. Div. 214, 309 N. Y. 97; People v. Gerks, 243 N. Y. 166; People v. Lobel, 298 N. Y. 243; People v. Karp, 298 N. Y. 213; People v. Cooper, 224 App. Div. 145.) III. The proof established that defendant Cohen “ knowingly ” made a false and fraudulent claim and “knowingly” subscribed the false proof. (People v. Luciano, 277 N. Y. 348; People v. Eaton, 122 App. Div. 706, 192 N. Y. 542.) IV. The allegations in the indictment that the loss was total and that there were 4,012 speed informers on board the truck at the time of the fire were proven to be false and fraudulent. V. Defendant Cohen’s representation to adjusters Beglin and Olsen during the process of investigation and adjustment that he had a valid order for 3,000 units from Coulton in Florida was proven to be false and a device to help him collect on the false proof (cargo loss) of August 24,1954, and on the evidence became a “ related pretense ”. VI. Defendant Cohen had a strong motive to commit the crimes charged in the indictment. VTI. The claim by defendant Cohen as to the water loss was alleged to be false as to origin, engineered by Cohen, false in quantity, and false in value, with the same particulars and pattern of proof as in the cargo loss, to wit, that he “ knowingly ” presented and “knowingly” subscribed, and also deliberately destroyed the inventory to collect insurance moneys therefrom. VIII. Defendant Cohen was proven guilty of grand larceny, first degree (by false pretenses) in collecting upwards of $12,000 on the water loss. IX. Defendant Cohen planned and tried to procure the witnesses Chartoff, Scarlata and Ewing to commit perjury on his behalf by giving them prepared false statements to testify from on trial. X. The acts charged and proven as to the “knowingly” presenting and “knowingly” subscribing false proof on the cargo loss (known by defendant to be false because he deliberately procured the destruction by fire) were also admissible in evidence under the last six counts, water loss, to establish intent and motive on that claim. The acts charged were similar. (People v. Luciano, 277 N. Y. 348; People v. Eaton, 122 App. Div. 706.) XI. The false claims and larcenies by false pretenses were alleged in the indictment as crimes (of false claims on cargo and water loss; of the larcenies by false pretenses on each of the false claims on cargo and water loss), to be acts and transactions of the same and similar character. (People v. Laman, 189 Misc. 664; People ex rel. Pincus v. Adams, 274 N. Y. 447; Pointer v. United States, 151 U. S. 396; People v. Weinberger, 2 A D 2d 806, 2 N Y 2d 892; People v. Florio, 301 N. Y. 46; People ex rel. Poster v. Jackson, 278 App. Div. 734, 303 N. Y. 680; People v. Dales, 309 N. Y. 97.) XII. There was no error as a matter of law in admitting into evidence on the “ knowingly ” allegation proof that defendant Cohen instructed Chartoff to have the cargo on the truck deliberately burned up and a false count and invoices, insurance, etc., procured. (People v. Hall, 172 Misc. 930; People v. Molineux, 168 N. Y. 264; People v. Hill, 198 N. Y. 64; People v. Dowling, 84 N. Y. 478; Bielschofsky v. People, 3 Hun 40, 60 N. Y. 616; People v. Katz, 209 N. Y. 311; People v. Buchalter, 289 N. Y. 181; People v. Thau, 219 N. Y. 39; People v. Peckens, 153 N. Y. 576; People v. Marino, 271 N. Y. 317; People v. Hudson Val. Constr. Co., 217 N. Y. 172; People v. Dales, 309 N. Y. 97.) XIII. There could be no allegation of the crime of conspiracy to burn the truck nor a charge of arson therefor cognizable in the State of New York on the facts of this case, nor any prosecution therefor in this State. (People v. Werblow, 241 N. Y. 55; People v. Mills, 178 N. Y. 274; People v. Adams, 3 Denio 190.) XIV. The prosecution could and did properly choose to charge defendant Cohen with the general crime of larceny by false pretenses, and “ knowingly ” presenting and “knowingly” subscribing false claims of loss. (People v. Wilson, 263 App. Div. 1046; People v. Tavormina, 257 N. Y. 84; People v. Hines, 284 N. Y. 93; People v. Florio, 301 N. Y. 46; People v. Malavassi, 248 App. Div. 784, 273 N. Y. 460.) XV. Defendant Cohen as a principal could be prosecuted on an indictment charging him with the nine crimes there alleged, although the proof was that some of the criminal acts were done by his direction by either a coprincipal or accomplice. (People v. Sciascia, 268 App. Div. 14, 294 N. Y. 927.) XVI. It is no longer necessary to allege in an indictment that a principal charged with a crime committed the acts through an accomplice or another. (People v. Bliven, 112 N. Y. 79.)

      Albert E. Hollis for respondent.
   Desmond, J.

The People appeal here by permission.

Defendant after a long trial was convicted on nine counts of an indictment but the Appellate Division reversed by a divided vote. In substance, the first three of the counts on which defendant was convicted charged an insurance fraud by defendant in connection with the burning of the contents of a motor truck near Harrisburg, Pennsylvania. The other six counts (numbered 4 to 9) charged another insurance fraud in connection with collecting for alleged water damage caused by a fire in a Eochester building on September 4, 1954, 11 days after the truck fire referred to in the first three counts. The prosecution’s theory as to the Eochester water damage was that it was not really the result of a fire in another part of the building but was deliberately caused by defendant. There are six counts as to the Eochester loss because on the Eochester risk there were two fire insurance companies. In other words, as to each of the three insurers alleged to have been defrauded by defendant there was in the indictment one count charging violation of subdivision 1 of section 1202 of the Penal Law (false insurance claim), one count under subdivision 2 of section 1202 of the Penal Law (making a false proof of loss), and one count charging grand larceny, first degree, by false representations in violation of sections 1290 and 1294 of the Penal Law.

The Appellate Division, Fourth Department, reversed on the law and facts the conviction as to the first three counts and reversed on the law alone the conviction as to the last six counts, granting a new trial as to all nine counts (see People v. Tomlin, 2 N Y 2d 758). In substance, the majority said as to the first three or Pennsylvania counts that the conviction on those first three counts should be reversed because, according to the majority opinion, the trial court improperly allowed the prosecution to put before the jury a claim and proof not included in the indictment, namely, that not only was the insurance claim false as to quantities and value of merchandise but that the fire itself was incendiary and the fruit of a conspiracy between defendant and one Chartoff. The Appellate Division majority gave about the same reason for reversing the conviction on the other counts (4 to 9) which had to do with the Rochester insurance claim. The Appellate Division majority said that the trial court improperly allowed the jury to consider, in reference to the alleged Rochester false claim and larceny, proof as to alleged incendiarism in the Pennsylvania truck fire. With deference, we say that we do not read the record that way. It is clear to us that the trial court allowed the jury to consider the alleged Pennsylvania incendiarism in connection only with the Pennsylvania counts which are not before us, but did not allow such consideration of that arson proof as to the Rochester counts which are here on appeal.

The dissenting opinion argued that while the indictment (first three counts) as to the Pennsylvania loss alleged only false representations as to the amount and value of the truck cargo burned, nevertheless other false representations were properly proven including the falsity of the representation in the proof of loss as to the cause of the Pennsylvania fire. Therefore, the dissenting Justice wrote, the proof that the Pennsylvania fire was an incendiary one properly came into the case as to the first three (Pennsylvania) counts to show that the Pennsylvania insurance money was obtained by false representations not only as to the amount of the loss but as to the cause of the fire. The dissent offered another reason why this testimony of Pennsylvania incendiarism was admissible. Assuming that as to the alleged false claim and larceny charges the proof of Pennsylvania incendiarism was actually proof of another crime, nevertheless, said the dissent, under the exceptions listed in People v. Molineux (168 N. Y. 264) and under People v. Katz (209 N. Y. 311, 328) the alleged Pennsylvania incendiarism could be proven in connection with the Rochester insurance fraud as a similar and recent offense, in order to prove the intent of the Rochester transaction.

The People were granted leave to appeal here as to the last six counts, conviction on which had been reversed on the law. Such leave could not be granted, of course, as to the reversal on the first three counts since that reversal was on the facts as well as the law. Thus, as the case comes to us, the indictment, proof and verdict as to the first three counts are not before us except indirectly as part of the whole picture. The legality of the last six-counts convictions is directly in issue on this appeal since those convictions were reversed on the law and leave to appeal was granted as to them.

We proceed to a closer examination of the indictment, the exact allegations of which are quite important in view of the two ' errors alleged, that is, the alleged erroneous receipt of evidence, the criticized charge to the jury as to an arson conspiracy and an arson, and another alleged error in the charge as to corroboration of the accomplice. As stated earlier, the first three of the nine counts tried are concerned with a fire insurance claim made by defendant’s (owned or controlled) corporations Leco and Code as a result of a fire near Harrisburg, Pennsylvania, on August 24, 1954, in which truck cargo belonging to defendant’s corporations was destroyed. The first count charges a violation of subdivision 1 of section 1202 of the Penal Law in presenting to the insurer a proof of loss which was false as to the cost and value of the burned merchandise. The second count charges the subscription of a false proof of loss in the same count, a violation of subdivision 2 of section 1202 of the Penal Law, while the third count, still dealing with the Harrisburg fire, charges grand larceny, first degree. This grand larceny count says that defendant larcenously obtained a sum of money from the insurer in connection with the Harrisburg fire by false representations as to the cost and value of the burned merchandise. In his opening to the jury the prosecutor stated that before this cargo left Rochester defendant told a man named Chartoff, driver of the truck, to burn up the cargo en route. At this point in the prosecutor’s opening the defendant moved for a mistrial on the ground that the prosecutor was making a charge of arson not pleaded in the indictment. The County Judge stated that proof of similar crimes not charged in the indictment would he admitted in evidence if shown to be incidental to the charge in the indictment. The County Judge then denied the mistrial motion subject to renewal later. The prosecutor went on in his opening speech to describe the incendiary burning of the truck and contents near Harrisburg by Chartoff. Again the defense objected but the objection was overruled. Before the trial, on the argument of a demurrer, the prosecutor had made it plain that the indictment was not drawn to include an arson charge. It appears that Chartoff’s testimony that the fire was intentionally caused was not obtained until after indictment. At the trial itself, on argument of defense motions, the prosecutor pointed out that the larceny-by-false-pretenses count as to the Harrisburg fire was drawn under section 1290-a of the Penal Law which requires that such a false representation must be alleged but goes on to say that: ‘ ‘ As long as one of the false or fraudulent representations or pretenses alleged be proven, any other related representation or pretense, though not alleged may be given in evidence.” Therefore, the District Attorney argued at the trial and argues now that the inclusion in this indictment as to the Harrisburg incident of one false pretenses count permitted the proof of a false pretense not alleged that the falsity of the allegation in the proof of loss that the cause of fire was “ undetermined ”. We see no escape from this and we agree with the dissent that this constitutes one reason why as to the first three counts it was proper to prove the incendiary cause of the Harrisburg fire to show the falsity of the representation that the cause was undetermined ”, that is, unknown to defendant.

Furthermore, the proof that the Harrisburg fire was incendiary came into the case naturally and incidentally to the showing of the general facts and so was admissible even though it proved another and uncharged crime (People v. Thau, 219 N. Y. 39, 42; People v. Buchalter, 289 N. Y. 181, 217).

Having concluded that the proof that defendant arranged the Harrisburg fire was not as matter of law inadmissible at least as to the first three counts which are not before us, we turn now to the real question. That inquiry is as to whether this same testimony about the incendiary character of the Harrisburg fire was in fact admitted as to the Rochester counts and if so whether it was admissible as to them. A related question is as to whether the court properly charged the jury in this connection. The Appellate Division majority said that, as to the last six or Rochester counts, the proof that defendant was the instigator of the Harrisburg fire ‘ ‘ was making proof of the defendant’s guilt of an independent crime ” and that none of the People v. Molineux case (168 N. Y. 264, supra) exceptions applied. In other words, the Appellate Division said that, considering the last six counts separately, the Harrisburg arson proof was clearly inadmissible as to them as being proof of another and unrelated crime. But the testimony was not so received in evidence. A careful check of the record shows that at no time did counsel ask the court to exclude this proof (of Pennsylvania incendiarism) as to the last six or Rochester counts. Since it was properly in the case as to the first three counts, defendant could not in the Appellate Division argue for the first time that it was improperly admitted as to the last six counts. Furthermore, any such point was not saved at the trial. To explain that more clearly: defendant objected to any proof or statement that the defendant was the instigator of the Harrisburg fire but, when that objection was overruled, he never made the further point now urged that it was inadmissible as to the Rochester counts. Since the proof was properly in for another purpose, the defense in order to preserve this point would have to ask the court to exclude it as to the last six counts. That the defense did not do.

We pass now to the alleged errors ascribed by the Appellate Division majority to the court’s charge. We note that whenever in the charge the court mentioned incendiarism he was discussing only the first three, not the last six, counts.

Next, we point out (as did the dissenting opinion) that defendant’s exceptions and requests as to the charge do not mention or refer in any way to those parts of the charge considered erroneous by the Appellate Division majority. In order to raise a question of law as to the charge an exception must be taken (Code of C’rim. Pro., § 420-a). In the absence of any exception the Appellate Division had no power (even assuming the charge was erroneous) to reverse on the law because of defects now said to be found in the charge. Furthermore, it seems that even in his own Appellate Division brief defendant never argued any such errors.

Apart from all that, we see no real or prejudicial errors in the court’s instructions. The Appellate Division majority referred to that part of the charge in which the court told the jury that one of the fraudulent acts charged by the People was that the fire was set with the connivance of the defendant.” Of course, if that meant that defendant was directly charged in the indictment with causing the Pennsylvania fire, it was incorrect. But the court had accurately and at great length described all the counts in the indictment. The language criticized by the Appellate Division was a kind of summary of part of the proof relating to the first three counts only. The same is true of language in the charge where the court said that ‘ ‘ you have the still further question as to whether or not the fire was one which was arranged by the defendant ’ and the trial court’s remark that “ Should you reach the conclusion that the defendant participated in the arrangement of the fire, then, of course, your problem would not be too difficult with regard to the others.” But these perhaps unfortunate statements are only part of a long charge. Indeed, the court carefully told the jury that defendant was not to be convicted of one crime because conceivably he had committed another, that the testimony as to the Harrisburg fire had been admitted because (as is surely correct) it was so intertwined with the entire transaction as to become an integral part of it. But, cautioned the trial court, the jury was not to reach a conclusion of guilt merely because the jury believed defendant was involved “in the firing of the truck or the arson of the truck ” in Pennsylvania. He carefully noted that ‘ ‘ there is no charge here before you of arson in connection with the fire in the truck near Harrisburg.” We see no error in any of this and neither did defense counsel at the trial or in the Appellate Division.

At no point in the trial was there any assertion, and the jury could hardly have believed, that there was any connection between the Pennsylvania fire and the later Rochester water damage.

The other error in the charge listed by the Appellate Division was in the court’s instructing the jury as to the rule (Code Grim. Pro., § 399) requiring corroboration of the testimony of an accomplice. The Appellate Division thought this was “ not in the case at all ” and that “ the court must have been under the impression that the defendant was being tried for participation in the burning of the truck.” Of course, the trial court had previously and in several forms of words been at pains to tell the jury that defendant was not being tried for arson. Again, there was no exception or request by the defense as to this accomplice-corroboration instruction to the jury. We make two comments on the matter. First, the requirement of corroboration of an accomplice is ordinarily favorable to a defendant since it puts a greater burden of proof on the People. Second, the accomplice idea was not one wholly foreign to this case. Actually, the truck driver witness Chartoff, who swore that, he set the truck afire on defendant’s instructions, could well have been considered by the jury to have been an accomplice as to the three directly-alleged Harrisburg counts. There was testimony that Chartoff not only set the truck ablaze but aided defendant in working out a deliberately false and exaggerated invoice for the truck cargo when after-wards burned and made the subject of an inflated insurance claim as charged in the first three counts, and also aided in convincing the insurers that the false claim was valid.

From all of this, we conclude that there was no reversible error on this trial, if, indeed, any error at all and that, therefore, the reversal on the law as to the six last counts was itself erroneous. Of course the Appellate Division has broad powers as to reversing this part of the judgment on the facts or in discretion as it did here as to the first three counts.

The order so far as appealed from (counts 4 to 9) should be reversed and the case (as to counts 4 to 9) remitted to the Appellate Division to pass upon questions of fact or discretion (Code Grim. Pro., § 543-b).

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

Order reversed, etc.


author: Fuld, J.

text:
    James G. Cahill et al., as Executors of William H. Roberts, Deceased, Doing Business under the Name of Melvina Can Company, Appellants-Respondents, v. John E. Regan, Respondent-Appellant.
    Argued January 15, 1959;
    decided March 5, 1959.

      Charles B. McGroddy, Jr., for appellants-respondents.
    I. Plaintiffs, defendant’s employers, assigned to him the duty of devoting his efforts to a particular problem, i.e., producing a re-usable can, and, therefore, the resulting invention belongs to plaintiffs. (Marshall v. Colgate-Palmolive-Peet Co., 175 F. 2d 215; Houghton v. United States, 23 F. 2d 386; Standard Parts Co. v. Peck, 264 U. S. 52; Drew & Co. v. Bernhard, 170 F. 2d 679.) II. Defendant’s conduct in managing Melvina for 15 months while it made the re-usable cans is completely inconsistent with his claim to own the patent. III. The Appellate Division’s finding that defendant “ had the invention fully in mind ” before disclosure to plaintiffs has no support in the evidence.

      Sidney Schreiberg and Samuel Abrahams for respondent-appellant.
    I. An invention is the property of the inventor, as is the patent which he obtains on the invention. The fact that the invention is made while the inventor is working for an employer gives the employer no right to the patent unless there is a special agreement to that effect. Under the circumstances of ■ this case, the patent belongs to defendant. (United States v. Dubilier Condenser Corp., 289 U. S. 178; Dalzell v. Dueber Mfg. Co., 149 U. S. 315; General Time Corp. v. Padua Alarm Systems, 199 F. 2d 351; Marshall v. Colgate-Palmolive-Peet Co., 175 F. 2d 215; Houghton v. United States, 23 F. 2d 386; Stand

      ard Parts Co. v. Peck, 264 U. S. 52; Burr v. De La Vergne, 102 N. Y. 415; Talbot v. Harrison, 150 Misc. 798, 240 App. Div. 957.) II. In an action for a declaratory judgment, the prayer for relief must specify the precise rights of which a declaration is requested. The court has no power to speculate concerning other and tangential relief to which plaintiff might have been entitled, nor may the court grant such relief. The trial court, therefore, after finding that the patent belonged to Began, the inventor, correctly refused to grant a shop right to the employer. The Appellate Division erred in holding that the shop right was a “ lesser interest than the full ownership ” of the patent, was therefore embraced within it, and should have been granted under the demand for “ further and different relief” in the complaint. (Lowe v. Lowe, 265 N. Y. 197.) III. The general release given to Began by Boberts, Cahill’s testator, completely extinguished any and all rights or claims, real, imaginary or alleged, which Boberts had against Began, including the patent, the invention and the shop right to use the invention. (Simon v. Simon, 274 App. Div. 447; Giannini v. Sheeran, 276 App. Div. 760; Lucio v. Curran, 2 N Y 2d 157; Kirchner v. New Home Sewing Mach. Co., 135 N. Y. 182; Pimpinello v. Swift & Co., 253 N. Y. 159; Amend v. Hurley, 293 N. Y. 587; Hotchkiss v. National City Bank, 200 F. 287, 231 U. S. 50; Raleigh Associates v. Henry, 302 N. Y. 467; Pierson v. Hooker, 3 Johns. 68; Walbourn v. Hingston, 86 Hun 63; Mitchell v. Mitchell, 170 App. Div. 452; Haskell v. Miller, 221 App. Div. 48, 246 N. Y. 618; Rector of St. James Church v. City of New York, 261 App. Div. 614.)
   Fuld, J.

This case involves the question of whether a patent for a particular article, invented by defendant employee, belongs to him or to his employers, the plaintiffs herein. The trial court found in favor of the defendant; the Appellate Division modified the judgment, deciding that, although the patent belonged to the defendant, the plaintiffs had a “ shop right” to use it. Both parties have cross-appealed to this court.

The plaintiffs, in their capacity as executors of the estate of the deceased William Boberts, are carrying on the business which Boberts had owned during his lifetime, the Melvina Can Company. In October, 1947, James Cahill, the chief executive officer of the company, induced the defendant to give up his own business and take over the management of Melvina to “ see if we could make a going business out of it.” In addition to his supervisory duties, and this was one of Cahill’s principal reasons for hiring him, the defendant was engaged to 11 design cans and can dies ”, an occupation in which he had previously been employed. He had also been selling machinery and equipment and accepted the new position on condition that he might do some selling of machinery on his own.

Melvina was engaged in manufacturing tear-strip ” ammunition cans which could be used but once. Learning of the Navy’s interest in obtaining re-usable containers somewhat similar to a German product, the defendant directed himself to the subject and produced a re-usable can which Melvina proceeded to manufacture. In July of 1950, the defendant applied for a patent which he obtained two years later. In the interval, he had a dispute with Roberts and Cahill over the ownership of some machinery in the former’s possession and, in October, 1950, he left Melvina and brought a replevin action against Roberts. The lawsuit was settled several months later, with an exchange of general releases. Roberts died in 1952, and the plaintiffs commenced the present suit in 1953, seeking a declaratory judgment that they were the owners of the defendant’s patent.

If an employee is hired to invent or is given the task of devoting his efforts to a particular problem, the resulting invention is the employer’s, and any patent obtained by the employee must be assigned to the other. (See, e.g., Standard Parts Co. v. Peck, 264 U. S. 52; Marshall v. Golgate-Palmolive-Peet Co., 175 F. 2d 215, 217.) On the other hand, an employee whose employment is “ general ” is entitled to retain any patent which he procures and need not assign it to his employer, even though his employment “ cover a field of labor and effort in the performance of which the employee conceived the invention for which he obtained a patent ”. (United States v. Dubilier Condenser Corp., 289 U. S. 178, 187; see, also, Dalzell v. Dueber Mfg. Co., 149 U. S. 315, 320; Talbot v. Harrison, 150 Misc. 798, 799, affd. 240 App. Div. 957; cf. Burr v. De La Vergne, 102 N. Y. 415, 419; Houghton v. United States, 23 F. 2d 386; see, also Toulmin, Handbook of Patents [2d ed., 1954], p. 430.) Indeed, even where an employee is hired to “ devote his time and services to devising and making improvements in articles * * * . manufactured” in his place of employment, he is entitled to enjoy the fruits of any invention which he conceives while so employed and is under no duty to turn the patent obtained over to the employer “ in the absence of an express agreement to that effect.” (Dalzell v. Dueber Mfg. Co., 149 U. S. 315, 320, supra; Talbot v. Harrison, 150 Misc. 798, 799, affd. 240 App. Div. 957, supra; cf. Standard Parts Co. v. Peck, 264 U. S. 52, 59, supra; Drew & Co. v. Reinhard, 170 F. 2d 679, 681.)

In determining whether an employee has been directed to invent a particular device, a distinction must be drawn between “the inventive act, the birth of an idea” and the “embodiment ” of that idea “ in a mechanism or a physical or chemical aggregate ”. (United States v. Dubilier Condenser Corp., 289 U. S. 178, 188, supra.) As the Supreme Court wrote in the Dubilier case, employment ‘ to design or to construct or to devise methods of manufacture is not the same as employment to invent” (p. 188). And, by the same token, a direction to an employee to develop an idea which he had already conceived on his own is not a direction to invent and does not entitle the employer to the invention or the patent on it.

The courts below, on their appraisal of the record, found that the defendant had been hired to manage and supervise the Melvina Can Company and, accordingly, concluded that he was entitled to the article which he invented and was not required to assign his patent to his employer. The plaintiffs, however, contend that the evidence does not support this conclusion; they argue that the defendant, even if not hired to invent, was actually assigned the task of devoting his efforts to a particular problem, namely, the invention of a re-usable can—in which event, “the resulting invention belongs to the employer.” (Marshall v. Colgate-Palmolive-Peet Co., 175 F. 2d 215, 217, supra; see, also, Houghton v. United States, 23 F. 2d 386, supra.) We find no support for the employer’s position. It is our view, as it was that of the courts below, that Cahill did not direct the defendant to devote his time to inventing a new can, but rather told him that he should, with the company’s equipment and materials, work on the idea of such a can, which he had already conceived, and see what conld be accomplished. It is true that the defendant was, among other things, hired generally to design cans, but that does not entitle the employer to the patent since there was no agreement to assign it to him. (Dalzell v. Bueber Mfg. Co., 149 U. S. 315, 320, supra.)

This brings us to the question of whether the employer is entitled to a shop right, that is, a right to use the invention. Although the plaintiffs did not claim such a right in their complaint or urge it upon the trial, the AppeEate Division could, and very properly did, consider and decide the matter. (See, e.g., Rentways v. O’Neill Milk & Cream Co., 308 N. Y. 342, 349; Persky v. Bank of America Nat. Assn., 261 N. Y. 212; see, also, Vestal, Sua Sponte Consideration in AppeEate Review, 27 Fordham L. Rev. 477.) Moreover, in an action for a declaratory judgment, the court has an exceedingly broad discretion in deciding the issues. A plaintiff wiE not, for instance, be denied relief merely because he does not ask for the reHef to which he might be entitled; where it appears that ‘ ‘ the discretionary and extraordinary powers of the court have been invoked for a sufficient reason ’ ’, we have said, the court wiE ‘ ‘ retain jurisdiction of the action and * * * exercise its power to declare the rights and legal relations of the parties whatever they may be.” (Rockland Light & Power Co. v. City of New York, 289 N. Y. 45, 50, 51.)

Despite the fact, then, that an employee may have an exclusive right to the patent, the employer wiE gain a shop right to use the invention if the employee, in developing his ideas, did so on his employer’s time and with his machinery, material and money. (See, e.g., United States v. Dubilier Condenser Corp., 289 U. S. 178, 188, supra; Solomons v. United States, 137 U. S. 342, 346; see, also, Toulmin, op. cit., p. 431.) As the Supreme Court wrote in the Dubilier case (289 U. S. 178, 188-189),

“ Recognition of the nature of the act of invention also defines the limits of the so-caEed shop-right, which shortly stated, is that where a servant, during his hours of employment, working with his master’s materials and appfiances, conceives and perfects an invention for which he obtains a patent, he must accord his master a non-exclusive right to practice the invention. [Cases cited.] This is an application of equitable principles. Since the servant uses his master’s time, facilities and materials to attain a concrete result, the latter is in equity entitled to use that which embodies his own property and to duplicate it as often as he may find occasion to employ similar appliances in his business.”

The defendant herein does not dispute the fact that his employer paid for the professional drawings of his sketches and for the making of the dies and allowed him the use of its machine shop to perfect his samples. Under such circumstances as these, the plaintiffs are entitled to a shop right in the invention.

The defendant urges, however, that the general release executed by Roberts extinguished any and all rights and claims which the employer might have had, including a claim to the patent or to the shop right. Although the effect of a general release, in the absence of fraud or mutual mistake, cannot be limited or curtailed (see Lucio v. Curran, 2 N Y 2d 157, 161; Kirchner v. New Home Sewing Mach. Co., 135 N. Y, 182, 188), its meaning and coverage necessarily depend, as in the case of contracts generally, upon the controversy being settled and upon the purpose for which the release was actually given. Certainly, a release may not be read to cover matters which the parties did not desire or intend to dispose of, In the case before us, the defendant, without the knowledge of his employer, applied for the patent in July of 1950. The replevin action, commenced some months earlier, was settled and general releases exchanged in April, 1951, more than a year before the patent was issued to the defendant. When the releases were executed, it is clear, the parties were solely concerned with settling the controversy then being litigated, the ownership of machinery in the employer’s possession, a subject having no relation to the invention or the patent. Indeed, not only was no patent then in existence, but the employer was not even aware that one had been applied for. In the light of such facts, the Appellate Division was fully justified in concluding that Roberts’ release covered and barred only those matters about which there had been some dispute (see Simon v. Simon, 274 App. Div. 447, 451), not a possible future claim by the employer that he owned the patent or had a shop right to practice the inventions.

The judgment of the Appellate Division should be affirmed, without costs.

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

Judgment affirmed.