author: Chief Judge Bkeitel. Fuchsberg, J.

text:
    The People of the State of New York, Respondent, v David Safian, Appellant. The People of the State of New York, Respondent, v Robert F. Miner, Appellant.
    Argued October 25, 1978;
    decided December 6, 1978

      POINTS OF COUNSEL

      Herman Kaufman, Lewis R. Friedman and Jack T. Litman for appellant in the first above-entitled action.
    I. The court’s charge to the jury improperly omitted the lesser included offense of manslaughter in the first degree, requested by the defense, and which was reasonably raised by the evidence. (People v Henderson, 41 NY2d 233; People v Johnson, 39 NY2d 364; People v Shuman, 37 NY2d 302; People v Stanfield, 36 NY2d 467; People v Cionek, 35 NY2d 924; People v Hayes, 43 AD2d 99; People v Mussenden, 308 NY 558; People v Moran, 246 NY 100; People v Tai, 39 NY2d 894; Dombrowski v Somers, 41 NY2d 858.) II. Segregated from the evidence received against Robert Miner, the evidence legally admissible against David Safian was insufficient to convict him of the charges. (People v Wachowicz, 22 NY2d 369; People v Brown, 26 NY2d 88; California v Green, 399 US 149; Bruton v United States, 391 US 123; Barber v Page, 390 US 719.) III. The denial of Safian’s motion for a severance requires a new trial, because of the substantial risk that the jury’s deliberations were improperly affected by the incriminating and unredacted references to Safian in Miner’s confessions and admissions. (People v Fisher, 249 NY 419; People v Payne, 35 NY2d 22; People v Bornholdt, 33 NY2d 75; People v Cavanaugh, 48 AD2d 949; Bruton v United States, 391 US 123; People v McNeil, 24 NY2d 550; Jackson v Denno, 378 US 368; People v Stanbridge, 26 NY2d 1; People v Baker, 26 NY2d 169; Roberts v Russell, 392 US 293.) IV. The prosecutor’s remarks in summation urging the jury to consider Miner’s confession against Safian deprived him of a fair trial. (People v Baker, 23 NY2d 307; Bruton v United States, 391 US 123; Delli Paoli v United States, 352 US 232; People v Adams, 21 NY2d 397; People v Lombard, 4 AD2d 666.)

      Richard Goldsweig for appellant in the second above-entitled action.
    I. The trial court committed reversible error in denying Miner’s application for a separate trial apart from the codefendant, David Safian. (People v Fisher, 249 NY 419; People v Payne, 35 NY2d 22; People v Burrelle, 21 NY2d 265; Bruton v United States, 391 US 123; People v McNeil, 24 NY2d 550; People v Anthony, 24 NY2d 696; People v Stanbridge, 26 NY2d 1; People v Donovan, 13 NY2d 148; People v Leyra, 302 NY 353; Harrington v California, 395 US 250.) II. Miner was deprived of a fair trial in view of the prosecutor’s prejudicial remarks during summation. (Bruton v United

      States, 391 US 123; People v Anthony, 24 NY2d 696; People v Baker, 23 NY2d 307; People v Adams, 21 NY2d 397.) III. The trial court committed reversible error in allowing the admission into evidence of Robert Miner’s oral and written confessions made during the evening of May 22, 1976, and the fruits thereof. (People v Stephen J. B., 23 NY2d 611; People v Anderson, 42 NY2d 35; People v Drummond, 40 NY2d 990; People v Everett, 10 NY2d 500; People v Leyra, 302 NY 353; People v McQueen, 18 NY2d 337; People v Caserino, 16 NY2d 255; People v Jackson, 41 NY2d 146; People v Donovan, 13 NY2d 148.) IV. The trial court committed reversible error when it failed to charge manslaughter in the first degree. (People v Henderson, 41 NY2d 233; People v Tai, 39 NY2d 894; People v Battle, 22 NY2d 323; People v McDonnell, 92 NY 656.)

      Carl A. Vergari, District Attorney (Janet Cunard of counsel), for respondent in the first and second above-entitled actions.
    I. Defendants’ motions for severance were properly denied. (People v Payne, 35 NY2d 22; People v McNeil, 24 NY2d 550; People v Wheatman, 31 NY2d 12; Bruton v United States, 391 US 123.) II. The prosecutor’s summation was in all respects proper. (People v Ryan, 263 NY 298.) III. The Trial Judge properly refused to charge manslaughter in the first degree. (People v Ozarowski, 38 NY2d 481; Foster v People, 50 NY 598.) IV. The proof against Safian that Miner killed the victim was sufficient. V. The confessions given by Miner on May 22, 1975 were properly admitted. (People v Buxton, 44 NY2d 33; People v Stephen J. B., 23 NY2d 611.)
   OPINION OF THE COURT

Chief Judge Bkeitel.

Defendants David Safian and Robert Miner appeal from affirmances of their convictions for the murder of Safian’s wife by Miner, a killer unknown to the wife and confessedly hired by Safian, and for possession of a weapon. At their joint trial, the confession of each defendant was admitted, with repeated and explicit instructions by the Trial Justice that each defendant’s confession was to be considered against the confessing defendant only, and not against the codefendant.

The issue is whether, despite the substantial identity of the two confessions, failure to grant a severance resulted in a trial hopelessly tainted by the admission of the codefendants’ confessions (see Bruton v United States, 391 US 123).

There should be affirmances as to both defendants. Each defendant’s confession contained the same material facts. There was, therefore, no significant risk that either defendant would be improperly prejudiced by admission of his codefendant’s confession (see People v McNeil, 24 NY2d 550, 552-553, remittitur amd 25 NY2d 888, cert den sub nom. Spain v New York, 396 US 937).

There is no dispute in this court, as there was none in the Appellate Division, that defendant Miner suffered no significant prejudice from admission of his codefendant’s confession. It is the case of defendant Safian that has provoked dissent, both in the Appellate Division and in this court. Yet the same principles apply, and those principles permit, and require, affirmance of Safian’s conviction as well.

Defendant David Safian, separated from his wife for a year, unsuccessfully sought reconciliation in April, 1975. When he was rebuffed, he told his wife that their daughter, one of her two children, would eventually live with him and that, according to the testimony of a friend of the wife, the daughter "would not live with Debbie”, the wife.

Meanwhile, on March 5, 1975, defendant Safian, aged 27, had met Robert Miner, aged 16, who was then, for no known reason, kicking and damaging Safian’s automobile. Safian had Miner arrested, but Miner later apologized and had the car repaired. Still later, Safian met Miner in a bar and, as Safian confessed in writing, told him that he was "looking for some crazy guy to take care of this girl I know”. Miner, eager to buy a new motorcycle, evidently met Safian’s requirements, and asked for $1,500. The two ultimately struck a bargain on a price of $1,000. At least one witness described a meeting in a bar between Safian and Miner on April 24, 1975. Then, in preparation, Safian showed Miner his wife’s home, the restaurant at which she worked as a waitress, and her automobile. All of this, except for the dates, comes from Safian’s written confession.

On May 2, 1975, eight days after Safian and Miner had been seen together in a bar, Deborah Safian was stabbed 21 times in front of her home. A neighbor heard her screams for help, and then saw her fall. A man on a motorcycle, wearing a head and face helmet, was seen leaving the scene. Mrs. Safian was immediately taken to a hospital, where she soon died.

Evidence was introduced to establish that the motorcycle on which the assailant fled resembled one owned by Miner. Blood was found on Miner’s motorcycle. Also, Miner owned a jacket similar to the one worn by Mrs. Safian’s killer. The jacket too was stained, with blood of the same type as the victim’s. This certainly suffices with respect to Safian’s culpability to tie Miner in as the person who committed the crime on behalf of Safian.

Actually even the evidence last discussed was not essential to establish that the crime had been committed at Safian’s behest. Safian’s confession did that. The statute, a restatement of the long-established law in this State, provides only: "A person may not be convicted of any offense solely upon evidence of a confession or admission made by him without additional proof that the offense charged has been committed” (CPL 60.50; e.g., People v Cuozzo, 292 NY 85, 91-93 [Desmond, J.], and cases there collected arising under the predecessor statute to CPL 60.50). Thus it has always been true that a confession may provide all the necessary proof of defendant’s culpability, and the statute only requires that the confessed crime be proven to have occurred by independent evidence without any other connection with the defendant or his confession.

Moreover, there is the proximity in time between Safian’s admitted meetings with Miner, one supposedly in late April, 1975, and the occurrence of the May 2 homicide they had discussed in those meetings. There is also the coincidence of place, Safian having said that he had pointed out to Miner the victim’s residence and automobile. In short, if, as is not the case, the confession required "corroboration” beyond the fact of the corpus delicti, there was ample evidence to "corroborate” the confession.

But the end is not yet. After the murder had been committed, Miner, according to Safian’s confession, met Safian "a couple of times” in the same bar in which the agreement to kill had been made. Miner asked Safian for his money and sought to make an appointment to arrange delivery. Before payment could be made, however, Safian confessed to the police. While others may raise doubts whether the intentional homicide of the wife was attributable to Safian’s agreement with Miner, Safian had no such doubts. That was shown by his description of his posthomicide meetings with Miner, in which Miner asked to be paid. And, as discussed earlier, a confession analytically need not be "corroborated” but only supported by an independently proven corpus delicti (People v Cuozzo, supra).

Thus, on the evidence admissible against Safian, who did not testify and offered no evidence after the People rested, the proof was overpowering that Safian had hired Miner to kill his wife, and that she had in fact been intentionally killed. Entirely superfluous to certitude as to Safian’s guilt was any material contained in Miner’s confession, and admitted only against Miner.

Of course, it is now established law that when introduction in evidence of the extrajudicial confession of a codefendant not testifying and not subject to cross-examination adds substantial weight to the prosecution’s case against another defendant, that defendant is denied his constitutional right to confrontation (Bruton v United States, 391 US 123, 127-128, supra). (See, also, Nelson v O’Neil, 402 US 622, 628, noting that the Supreme Court has never extended Bruton beyond its specific holding. The statement is still true.) The rule is based on the assumption that even when limiting instructions are given, jurors may not be capable of ignoring or willing to ignore portions of a codefendant’s confession that inculpate another defendant (Bruton v United States, supra, esp pp 135-136).

There are, of course, means of avoiding the prejudice contemplated in the Bruton case. Thus, when confessions of codefendants are involved, severance and separate trials will sometimes be appropriate and even mandatory (see CPL 200.40, subd 1). In other cases, redaction of offending portions of the confession or confessions may provide a satisfactory solution (see People v Boone, 22 NY2d 476, 485-486, cert den sub nom. Brandon v New York, 393 US 991). Neither solution, however, is ideal, for redaction is not always possible, and severance creates problems of its own, not the least of which is duplication of effort on the part of court, prosecutor, and witnesses.

The Bruton rule is not absolute, nor should it be. It is a rule based on the probability of prejudice by inadmissible "hearsay”, and when that probability is negligible, as in this case, admission of a codefendant’s confession, subject of course to proper instructions, does not require reversal (see Harrington v California, 395 US 250, 253-254; Brown v United States, 411 US 223, 231-232; Schneble v Florida, 405 US 427, 429-432; see, also, People v Baker, 26 NY2d 169, 172-173).

This court, in accordance with these principles, has squarely held that "where each of the defendants has himself made a full and voluntary confession which is almost identical to the confessions of his codefendants”, the Bruton rule does not require reversal of a conviction (People v McNeil, 24 NY2d 550, 552, supra; see People v Benzinger, 36 NY2d 29, 34-35; see, also, People v Payne, 35 NY2d 22, 27-28). A similar rule has been applied in the Second Circuit Court of Appeals (see, e.g., United States ex rel. Stanbridge v Zelker, 514 F2d 45, 48-49, cert den 423 US 872; United States ex rel. Catanzaro v Mancusi, 404 F2d 296, 300, cert den 397 US 942). It has also been accepted in other Federal Courts of Appeals (see, e.g., Mack v Maggio, 538 F2d 1129, 1130-1131 [CCA 5th]; United States v Walton, 538 F2d 1348, 1352-1354 [CCA 8th], cert den 429 US 1025; United States v Spinks, 470 F2d 64, 65-66 [CCA 7th], cert den 409 US 1011; Metropolis v Turner, 437 F2d 207, 208-209 [CCA 10th]; but see Randolph v Parker, 575 F2d 1178, 1182-1184 [CCA 6th]; United States v Di Gilio, 538 F2d 972, 982 [CCA 3d], cert den sub nom. Lupo v United States, 429 US 1038). In the instant case, the joint trial of two confessed killers provides no reason in law or justice for departing from the established rule.

Safian’s confession is susceptible of only one interpretation: Safian hired Miner to kill his wife. True, in his confession, Safian said he had told Miner he was "looking for some crazy guy to take care of this girl I know”. But it is of no consequence that Safian used the euphemism of the street, "take care of’, instead of the blunt "kill”. It is disingenuous to contend, as does the dissent, that any logical or linguistic ambiguity was created by the phrase. If any confirmation were necessary, it was provided later in Safian’s confession.

In discussing payment after the homicide, Safian adopted the view that Miner had been "crazy” only in "the way he did it”. Thus, in his confession Safian had stated that he had told Miner "he [Miner] was crazy, he was sick.” He added in his confession, "I don’t know maybe, the way he did it.” In short, his objection was to the "way” the 16-year-old Miner "did it”, not to the result produced. Never did Safian, in his confession, say that he did not wish his wife killed.

Thus, without Miner’s confession, there is overwhelming evidence that Safian hired Miner to kill his wife, and that the wife was indeed intentionally killed. Certainly no more is needed to support the jury’s verdict against Safian. More important, however, is that Miner’s confession, although it provides additional detail about the killing itself, adds no material inculpatory evidence against Safian not already contained in Safian’s confession.

The Bruton rule, as noted above, is designed to prevent conviction of a defendant based in part on the jury’s knowledge of a codefendant’s inculpatory confession — evidence which may weigh heavily in the mind of the jurors despite its legal inadmissibility against defendant (see Bruton v United States, 391 US 123, 126, supra). How much more persuasive than a codefendant’s confession, however, would be defendant’s own confession to the crime charged. Presented with Safian’s own detailed written confession, the risk that jurors would be unduly prejudiced by anything added in Miner’s confession vanishes (see People v McNeil, 24 NY2d 550, 552-553, supra, quoting United States ex rel. Catanzaro v Mancusi, 404 F2d 296, 300, supra).

It is of course true that a codefendant’s confession is inadmissible against defendant not just because it is prejudicial — much admissible evidence is to some extent prejudicial— but because defendant may be left without the opportunity to confront and cross-examine his accuser. But when the co-defendant’s confession in narrating the operative facts tracks almost exactly defendant’s own story, the right to confront and cross-examine is of diminished usefulness (see United States v Spinks, 470 F2d 64, 66, supra). Thus, it would have been of little benefit to Safian to confront Miner about his confession when Safian himself had admitted the same facts albeit with different versions of street language. The right to confrontation, the constitutional underpinning of the Bruton rule, provides therefore no basis for reversal of Safian’s conviction of the cold-blooded, hired killing of his wife.

There was, it must be conceded, an unfortunate reference in the prosecutor’s summation, in effect characterizing defendants as partners and indicating that "[statements made by or acts done by one partner are binding upon the other.” Objection was taken and overruled by the court. The prosecutor’s statement of law was, of course, erroneous, and had such statements pervaded the summation reversal might be required (see People v Baker, 23 NY2d 307, 318). But the error was isolated, and the Trial Justice’s careful instructions in his full charge vitiated any prejudice to defendant. Moreover, in light of the insurmountable case made against Safian, this one slip by the prosecutor would amount, at best, to harmléss error.

Once the solution to the Bruton issue is reached as discussed above, the defense contention, adopted by the dissent, that defendant was entitled to a charge of lesser included crimes evaporates. If Safian’s confession be accepted, as it must have been, the only crime of which Safian could be guilty, on any view of the evidence, was that of intentional murder (see CPL 300.50, subd 1).

Neither justice, logic, nor practical experience requires severance of the trials of codefendants when live testimony of witnesses at trial is admissible against defendants and each defendant has made a full pretrial confession relating to the same material facts. Under such circumstances a joint trial does not improperly prejudice either defendant, nor does it deprive either of any legal right of confrontation. No two or more confessions, unless contrived, will be identical in language or detail, least of all among people who speak and think in street language. It is enough that their purport, in the vernacular, idiom, street language, or whatever kind of language, used, be the same. In this case the purport of the two confessions is the same and they mesh with respect to enough material elements to provide the identity required by the exceptions to the Bruton rule.

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

Fuchsberg, J.

(concurring as to Miner and dissenting as to Safian). The majority ignores the principle, so simply and forcefully put by the late Justice Hugo Black, that "[b]ad men, like good men, are entitled to be tried and sentenced in accordance with law” (Green v United States, 365 US 301, 309). As we read the record, David Safian, like him or not, did not get a fair trial. When that happens to anyone in our society, the rights of all are diminished. Therefore, though the entire court agrees that Robert Miner’s conviction of murder should stand, my fellow dissenters and I believe Safian is entitled to a new trial.

Inescapable prejudice to Safian was bound to flow from the impermissible introduction of Miner’s statement, which, because Miner did not testify, was not subject to the test of cross-examination. Contrary to the self-proving premise that animates the majority’s opinion, Safian’s own confession raised an important and reasonable question for the jury as to whether Safian intended that the plot against his wife have fatal or nonfatal consequences. Either inference was possible and it was for the jury to decide which one to draw. Safian’s defense to the murder charge, in fact, was premised on the contention that he lacked any intent to kill and, consistent with that position, his counsel requested a charge on the lesser charge of manslaughter. But the prosecution’s use of the Miner statement was calculated to, and apparently did, condition the minds of the jurors to accept the idea that Safian planned the killing. This was error of constitutional magnitude.

Because the majority’s exegesis of Safian’s confession is so conclusory, we preface our analysis by setting forth the heart of both confessions as summarized by the Appellate Division. Safian’s confession is presented first (59 AD2d, at pp 23-24):

"Miner met Safian at the bar. According to Safian, the following ensued: 'Then I told him I was looking for some crazy guy to take care of this girl I know. He told me he was crazy and could use money to buy a motorcycle and I told him I would talk to him. He said, "How much?” ’. After a brief bargaining session, the parties agreed on a figure of $1,000. Safian, on a subsequent night, showed Miner her home and where she worked, and 'left it up to him’.

"After Safian heard about the killing, Miner met him at the bar and said that '[h]e didn’t mean to do it that way. I told him he was crazy, he was sick. I don’t know, maybe the way he did it’.

"Safian went on to explain: 'A couple of times he came into the Roosevelt Bar. When I realized how it was done I figured he did it, stabbed her. * * * He said to me to set up a meeting place to pay him. * * * I had money set aside at home, but not for him, just money saved. When I was talking to him you say these things. I never expected him to do it. Well, the reason it came into my mind to do it is that I felt that she was trying to put the children aside to better herself.’ ”

Miner’s lengthy and far more encompassing confession was described as follows (59 AD2d, at pp 22-23):

"Safian mentioned to Miner that he (Safian) 'needed a job done on a couple of people’ and that 'he needs two people knocked off, one of the persons he was thinking of doing himself and the other he said he couldn’t do himself as he needed a solid alibi which I found out later he needed the alibi as it was his wife.’

"The following week Safian again saw Miner and said he needed the job done. To this Miner replied: 'you get me a piece, talk the right figures and give me some information and I will do it.’ A week later Miner agreed to use a knife after being informed by Safian that he could not get a 'piece’. A couple of nights later Safian pointed out where the intended victim lived and also where she worked as a waitress on weekends (Cooky’s Steak Pub in Yonkers). He also informed Miner that she finished work between 11:30 p.m. and 3 a.m., pointed out her car and gave Miner a brief description of her general appearance. Safian also said that he would be at the Roosevelt Bar and Grill on weekend nights between 10 p.m. and 3 a.m. 'until it’s done’, so that he would have an alibi.

"On Friday, May 2, 1975, at about 11:30 p.m., Miner stopped his motorbike behind the victim’s car as she was getting out and asked her directions to Central Avenue. As she was writing out the directions, Miner took out his knife. When she saw the weapon, she started to run; however, Miner caught her and stabbed her about 19 or 25 times. The victim screamed several times and then went limp. When Miner, heard someone yelling, he ran to his bike and 'split’.

"Some days thereafter, Miner saw Safian at the bar, but pretended not to know him. Safian left and Miner followed five minutes later. Miner complained that 'you should have told me it was your wife’. Safian said he would be in touch and Miner suggested he get in touch through a friend. Although the two met a couple of times thereafter at the bar, Safian refused to give Miner any money because 'the cops were really coming down on him’.”

Juxtaposing both confessions, critical differences emerge.

Specifically, nowhere does Safian’s statement unambiguously indicate that Safian intended to have his wife murdered. In fact, as to the element of intent, though the indictment charged him with aiding and soliciting in the commission of murder (Penal Law, § 20.00), Safian’s confession is couched in vague phrases not necessarily more consistent with intent to murder than with intent to inflict nonfatal or perhaps nonphysical injury. The majority, concentrating on the many points on which both confessions dovetail, persistently ignores the crucial gap and bridges it by inferring the missing scienter element. Although a jury could have so interpreted portions of his confession, our only concern should be whether, absent Miner’s confession, Safian’s conviction for second degree murder was compelled beyond a reasonable doubt (People v Crimmins, 36 NY2d 230, 237). On that score, viewed objectively, while it does not present a pretty picture, it cannot be said that the evidence rules out the lesser charge of first degree manslaughter as a matter of law.

In contradistinction, Miner’s confession damns Safian. It details a plot inspired by Safian, though executed by Miner, to have Safian’s wife murdered. The references to be found in Miner’s statement alone, regarding having someone "knocked off” and an initial willingness on Safian’s part to procure a "piece”, completely rebut any inference that Safian could have reasonably intended Miner’s acts to result in other than death. Furthermore, a statement Miner made to a girl friend that he was to be paid for committing a homicide was also admitted. This, too, contributed to establishing Safian’s intent in the jury’s eyes.

The majority nevertheless struggles to fit this case within the confines of the exception to the Bruton rule that holds harmless the introduction of a codefendant’s confession when the other defendant himself has made an "almost identical” confession. (People v McNeil, 24 NY2d 550, 552). True, after making allowance for inevitable differences in such things as style and nuance, the test of harmlessness has been said to be whether there is substantial identity between the confessions on all elements of the crime (United States ex rel. Ortiz v Fritz, 476 F2d 37, 40). However, in Safian’s case, as we have seen, the gap between the potentials for conviction and acquittal, at least on the element of intent as a component of murder, was impermissibly narrowed by the additional data supplied in the Miner statement. Far from being inconsequential, the Miner confession was precisely the type of "powerfully incriminating extrajudicial statement” that Bruton was designed to guard against (see 391 US 123, 135-136). In short, this was not a case of "[c]ast our [Miner’s] confession and the result would need to be the same” (People v Fisher, 249 NY 419, 426).

Nor may the divergence between the two confessions be viewed as though it were purely a matter of semantics. Safian’s assertion that Miner either mistook or exceeded Safian’s plan is no more disingenuous than Henry II’s impassioned claim that his rhetorical plea to be rid of Becket was misconstrued by his knights as a command to murder. Similarly, the jury could have viewed Safian’s role, untainted by Miner’s confession, as "susceptible of involvement in a less nefarious plot” than that which the People choose to infer (59 AD2d 20, 32, supra, dissenting opn of Shapiro, J.).

Put another way, rather than two substantially identical confessions, Miner’s is the key with which Safian’s ambiguities are unlocked. At the very least, Miner’s version of the facts brings sharply into focus what Safian’s confession leaves unclear. Here there was no harmless variation in detail but a disparity on the fundamental mens rea issue, a disparity which Miner’s confession, though inadmissible hearsay as against Safian, could well have overcome to establish a crucial element of the State’s case on the second degree murder charge. To paraphrase Judge Cardozo, until Miner’s statement is considered, this was a case of which it could be said, "[o]nly half of the problem * * * has been solved * * * There remains the question of the nature of his offense”. (People v Galbo, 218 NY 283, 290.)

But no matter that the majority blinds itself to the Bruton violation here, it also ignores a related and important body of our own State’s decisional law that holds as error the denial of a severance in these circumstances. Like Bruton, the basis for this rule ultimately rests on the right of every defendant

to have the jury assess his guilt or innocence solely on the basis of the evidence constitutionally admissible against him. Thus, in People v Fisher (supra, p 427) we stated that the denial of a severance was an abuse of discretion whenever, "without the existence of a confession by one defendant, the evidence against another would be too weak to justify a conviction or even [render] a conviction * * * doubtful”. Ergo, when there exists a substantial risk that a codefendant’s confession provides the critical element in the prosecution’s case against the defendant, his right to a separate trial must be respected (People v Payne, 35 NY2d 22, 28; People v Feolo, 282 NY 276, 278-282).

In People v Payne (supra), we confronted circumstances not unlike those before us now. There, each of the three codefendants signed a statement admitting some degree of involvement and implicating the others in murder and attempted rape. The greatest disparity existed between the statements of Payne, whose confession incriminated everyne in the attempted rape, and those of his codefendant Streiff, who confessed only to helping abduct the woman and then leaving her alone with Payne. All three were tried jointly. Although each defendant took the stand, we found the denial of a severance as to Streiff reversible error, despite the availability of cross-examination, because Payne’s statement, clearly inadmissible against his fellow defendant, served as a "guide for resolving ambiguities in the People’s case against” Streiff. (People v Payne, supra, p 28.)

Under this exacting standard, a fortiori, in the present case, the denial of Safian’s motion for severance cannot be held harmless. Despite his obvious involvement in the death of his wife, without Miner’s account, Safian’s conviction for murder is rendered far less certain. And a court should not presume what a jury might or might not have concluded had Miner’s confession not been introduced (see People v Rossi, 270 App Div 624, 628-629). For, this is one of those "close cases in which the inculpatory remarks might have been the deciding factor in the juror’s minds even though the state had an otherwise strong case” (Note, 46 Temple LQ 111, 115; see People v McNeil, 24 NY2d 550, 556, supra, dissenting opn of Fuld, J.).

Additionally, the patently prejudicial impact of Miner’s confession was rendered all the more devastating by two other trial errors. Notwithstanding that the evidence properly admissible against Safian was sufficient to warrant submission of the charge on the lesser included offense of manslaughter in the first degree (see People v Henderson, 41 NY2d 233, 236), the requested charge was denied, leaving Safian with the all- or-nothing alternative of conviction on the murder charge alone. Also exacerbating the effect of Miner’s hearsay statements was the misstatement by the prosecutor, in his summation, that the defendants were "partners” and that "[statements made by or acts done by one partner are binding upon the other.” Such argument has been held to be prejudicial error that vitiates the instructions given by the trial court to the contrary (People v Adams, 21 NY2d 397, 401-402).

For all these reasons, we would reverse the order of the Appellate Division and grant a new trial as to Safian and affirm the order as to Miner.

Judges Jasen, Gabrielli and Jones concur with Chief Judge Breitel; Judge Fuchsberg dissents and votes to reverse in a separate opinion in which Judges Wachtler and Cooke concur.

In People v Safian: Order affirmed.

Judges Jasen, Gabrielli and Jones concur with Chief Judge Breitel; Judge Fuchsberg concurs in a separate opinion in which Judges Wachtler and Cooke concur.

In People v Miner: Order affirmed.

      . Miner’s confession was consistent with Safian’s in all significant respects. Miner elaborated on his original discussions with Safian about the killing, indicating that Safian had told him he wanted two people "knocked off”, and that he needed a solid alibi for one. Initially, Miner had insisted that Safian obtain a "piece” for him, but later settled on a knife. He was in touch with Safian at a bar several times after the killing, and he told Safian it would have been better if Safian had told him that the victim was his wife, so that he could have taken additional precautions, presumably to avoid detection.

        . Defendant Safian argues, and the dissent apparently agrees, surprisingly, that his confession differs from Miner’s in that he may have hired him at the bargained price of $1,000 to do some unspecified thing to his wife, less than killing, to teach her a lesson in the care of her children. However, logic and reality fail to connect the lesson with the husband or the children if whatever Miner was to do was not to be attributed to Safian. In fact, he, Safian, was anxious that the deed "to take care of” the victim occur at a time when he had an alibi to disassociate him entirely from the performance of the deed for which he had sought a "crazy guy” and agreed to pay a price of $1,000. Safian’s argument is as senseless as the crime itself.


source: Caselaw Access Project

author: Chief Judge Breitel. Wachtler, J.

license: Public Domain

text:
    Sybron Corporation, Appellant, v Alfred J. Wetzel et al., Respondents.
    Argued September 19, 1978;
    decided December 7, 1978

      POINTS OF COUNSEL

      Edward J. Burns and Sherry Kraus for appellant.
    I. The court below erred on both the law and the facts regarding plaintiffs trade secrets. (Little v Gallus, 4 App Div 569; National Starch Prods. v Polymer Inds., 273 App Div 732; Byrne v Barrett, 268 NY 199; Sealectro Corp. v Tefco Electronics, 32 Misc 2d 11; Eastman Kodak Co. v Powers Film Prods., 189 App Div 556; Vulcan Detinning Co. v Assmann, 185 App Div 399.) II. New York courts have jurisdiction over De Dietrich. (Black v Oberle Rentals, 55 Misc 2d 398; Friedr. Zoellner [New York] Corp. v Tex Metals Co., 396 F2d 300; American Eutectic Welding Alloys Sales Co. v Dytron Alloys Corp., 439 F2d 428; Chemical Bank v World Hockey Assoc., 403 F Supp 1374; General Motors Acceptance Corp. v Richardson, 59 Misc 2d 744; Feathers v McLucas, 15 NY2d 443.) III. The court below also erred in dismissing plaintiffs complaint. (People v Long Is. R. R. Co., 113 Misc 700, 195 App Div 897.)

      John W. Clarke and Paul J. Yesawich, III, for respondents.
    I. Defendant’s motion to dismiss was properly granted by the court below because plaintiff has failed to demonstrate that De Dietrich has sufficient contacts with this State to subject it to personal jurisdiction. (Peterson v Spartan Inds., 33 NY2d 463; Charles Able Ltd. v School Pictures, 40 AD2d 944; Tauza v Susquehanna Coal Co., 220 NY 259; Miller v Surf Props., 4 NY2d 475; McNellis v American Box Bd. & Packaging Co., 53 Misc 2d 479; Carbone v Fort Erie Jockey Club, 47 AD2d 337; Delagi v Volkswagenwerk AG. of Wolfsburg, Germany, 29 NY2d 426; Brandow v Murry & Tregurtha Corp., 203 App Div 47; Sirois Leather v Lea-Suede Corp., 44 AD2d 815.) II. The decision of the court below denying plaintiff a preliminary injunction and dismissing the complaint should be affirmed because plaintiff has not made a clear showing that Wetzel possesses any trade secrets or confidential information. (Camardo v Board of Educ., 50 AD2d 1073; De Lury v City of New York, 48 AD2d 595; Lloyds Employment Corp. v Kraft, 276 App Div 1036; Ferranti Elec. v Harwood, 43 Misc 2d 533; Minnesota Min. & Mfg. Co. v Technical Tape Corp., 23 Misc 2d 671, 15 AD2d 960; Vulcan Detinning Co. v Assmann, 185 App Div 399; Paramount Pad Co. v Baumrind, 4 NY2d 393; Clark Paper & Mfg. Co. v Stenacher, 236 NY 312; Public Relations Aids v Wagner, 37 AD2d 293, 30 NY2d 890.) III. If this court determines that a preliminary injunction is appropriate, it should not prevent defendant Wetzel from commencing employment with De Dietrich in any capacity because to do so would deprive him of the right to earn a livelihood. (Reed, Roberts Assoc. v Strauman, 40 NY2d 303; Goldberg Co. v Stern, 53 AD2d 246; Eastman Kodak Co. v Powers Film Prods., 189 App Div 556; Vulcan Detinning Co. v Assmann, 185 App Div 399; Town & Country House & Home Serv. v Newbery, 3 NY2d 554; Xerox Corp. v Neises, 31 AD2d 195; Carpenter & Hughes v De Joseph, 13 AD2d 611, 10 NY2d 925.) IV. The decision of the court below dismissing plaintiffs action for a permanent injunction, should be affirmed because the evidence below reveals that plaintiff does not have a cause of action. (Guggenheimer v Ginzburg, 43 NY2d 268; Shapiro v City of New York, 67 Misc 2d 1021, 32 NY2d 96, 414 US 804, 1087.)
   OPINION OF THE COURT

Chief Judge Breitel.

Plaintiff Sybron, among other things a manufacturer and reliner of glass-lined vessels used in processing corrosive chemicals, sues its former employee, Wetzel, and a competitor corporation, De Dietrich, to enjoin the employment of Wetzel by De Dietrich and to prevent Wetzel from divulging alleged trade secrets. Special Term after a hearing granted Sybron a preliminary injunction. The Appellate Division, in reversing, held De Dietrich not subject to personal jurisdiction, but reached the merits with respect to Wetzel, and dismissed the action as to both defendants. Plaintiff appeals.

The principal controversy involves application to De Dietrich of CPLR 302 (subd [a], par 3), providing long-arm jurisdiction over nondomiciliary defendants who commit tortious acts outside the State causing injury in New York. At issue is whether, for purposes of the statute, a nondomiciliary competitor causes injury in New York when it hires a former employee of a corporation engaged in manufacture in this State allegedly to obtain protected trade secrets. As to defendant Wetzel, dismissal of the complaint, which had not as yet been served, is challenged as premature.

The order of the Appellate Division insofar as it dismissed the action should be reversed and the action reinstated as to both defendants. With respect to the Appellate Division’s reversal of the preliminary injunction this court is without power to review, and, therefore, to that extent the order of the Appellate Division should be affirmed.

Plaintiff, who had employed Wetzel at its New York plant for 34 years, would indeed be injured in New York should De Dietrich, by inducing a tortious breach of Wetzel’s obligations to his former employer and through use of trade secrets purloined through Wetzel, make valuable competitive sales to plaintiff’s New York customers. Plaintiff is thus entitled to invoke the jurisdictional statute to avert threatened harm. With respect to defendant Wetzel, dismissal of the complaint not yet served was premature, but denial of the preliminary injunction, as noted, is beyond the court’s scope of review. An issue not resolvable at this stage of the action, however, remains: the record, even on the limited evidence submitted or allowed upon the hearing for a preliminary injunction, raises the issue of fact whether Wetzel, applying his knowledge for the benefit of De Dietrich, would necessarily be divulging plaintiff’s trade secrets.

Wetzel had been employed in New York by the Pfaudler Company, a division of plaintiff Sybron, and one of three competitors in the United States engaged in the design, manufacture, and sale of glass-lined chemical processing vessels. Wetzel was involved in the preparation, coating, and firing of the glass used to line and reline the vessels. Despite his lack of formal education, he rose over the 34 years of his employment from helper in the coating department to general ceramics foreman. In 1974, however, at age 55, Wetzel took early retirement on reduced pension and moved to Florida.

In early 1977, defendant De Dietrich (USA), an American subsidiary of the French De Dietrich & Cie, advertised the installation in Union, New Jersey, of a new furnace for reglassing reactors and tanks. As a principal competitor of Sybron, De Dietrich has reglassed some 4,500 of Sybron’s "Pfaudler” vessels in its French plants, and intends for its New Jersey plant to reglass Sybron equipment.

This action was started after Sybron learned that De Dietrich’s American manager of manufacturing, a former chief ceramist at the Pfaudler division for whom Wetzel worked for many years, approached Wetzel in Florida and asked him to supervise the New Jersey facility. Evidently, only one other person, also a former Pfaudler employee, was interviewed for the position.

Plaintiff, regarding the methods, processes, and techniques employed in its glassing operations as proprietary secrets, seeks to bar Wetzel from working for De Dietrich in its American plant and from divulging protected trade secrets. Also relied upon is a certain Patent and Trade Secret Agreement signed by Wetzel after he became a line foreman in 1961. According to plaintiff, each employee with access to proprietary secrets is required to agree that he "will preserve in confidence, and in accordance with established Company policy, all secret and confidential matters of the Company and others with whom the Company may have confidential relations both during [his] employment and thereafter.” Defendants deny that Wetzel possesses trade secrets or confidential information, and insist that his new position will entail only application of De Dietrich processes and techniques.

Following plaintiff’s motion for a preliminary injunction, a two-day hearing was conducted. Plaintiff conceded that Wetzel was not involved in laboratory development of new glass formulas. Emphasized, however, was his extensive experience and responsibility in the glassing and reglassing of "Pfaudler” vessels. Even after his retirement, Wetzel was sent by Sybron as a technical consultant to its Mexican division. There was testimony that De Dietrich, like Sybron, regards its glass lining techniques, and not only its glass formulas, as proprietary secrets. Wetzel, on the other hand, testified that he took no Sybron files with him, that he was not consulted with respect to the composition or preparation of the glass, and that his job at Sybron was merely to carry out procedures established by others. If he detected flaws, Wetzel would simply inform his superiors. In addition, defendants introduced testimony that Sybron had conducted tours of its plant for nonemployee engineers.

Special Term, denying defendants’ motion to dismiss for lack of jurisdiction, enjoined both De Dietrich’s employment of Wetzel and the disclosure of trade secrets pending the action. The Appellate Division reversed, unanimously holding that De Dietrich was not subject to the personal jurisdiction of the court and that Wetzel, although subject to the court’s jurisdiction, did not possess trade secrets. Dismissal of the complaint, even though it had not as yet been served, was directed.

There is no disagreement in the court with the Appellate Division and Special Term that Wetzel was subject to personal jurisdiction and that service upon him was sufficient. The jurisdictional issue disputed in the court involves De Dietrich. A Delaware corporation based in New Jersey, De Dietrich is not qualified to do business in New York and has no New York office or employees. Of the 20 to 40 New York customers it has had, only Eastman Kodak and perhaps another are substantial. Kodak is also a major customer of Sybron.

CPLR 302, the "long-arm statute”, did not always expressly provide for personal jurisdiction over those whose tortious acts outside the State cause injury in New York (see L 1962, ch 308). It was only in response to Feathers v McLucas (15 NY2d 443) that in 1966 such a provision was added (L 1966, ch 590; Memorandum of the Judicial Conference, 2 McKinney’s 1966 Sess Laws of NY, p 2911; Twelfth Ann Report of NY Judicial Conference, 1967, pp 339-344). In the Feathers case, the court held that CPLR 302 (subd [a], par 2), which covers one who commits a tortious act within the State, did not apply to a nondomiciliary who improperly manufactured a tank in Kansas, even though the tank exploded in New York (supra, pp 458-464).

The 1966 addition allows the court to exercise personal jurisdiction when a nondomiciliary

"3. commits a tortious act without the state causing injury to person or property within the state, except as to a cause of action for defamation of character arising from the act, if he

"(i) regularly does or solicits business, or engages in any other persistent course of conduct, or derives substantial revenue from goods used or consumed or services rendered, in the state, or

"(ii) expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce”.

The Appellate Division held the statute of no avail because no tortious act had as yet been committed. The dissenters would agree. True, the agreement signed by Wetzel does not prohibit employment with a competitor, and, thus far, the dissenters argue, all De Dietrich has done is to hire Wetzel. If Wetzel possesses trade secrets, however, and if De Dietrich by its hiring agreement with Wetzel intends to obtain them from him, a tortious act will have been committed. The probable inferences from the admitted and controverted facts indicate a conscious plan to engage in unfair competition by misappropriation of Sybron’s trade secrets. Indeed, if that eventually be found to be true, a tortious act resulting in the breach by Wetzel of his contractual obligation to Sybron has occurred in New Jersey, although the consequential economic injury in this State is still only anticipated (cf. Mendel v Pittsburgh Plate Glass Co., 25 NY2d 340, 346-347 [dissenting opn], overruled Victorson v Bock Laundry Mach. Co., 37 NY2d 395, 400). For such an intentional tortious act a remedy would be available at law, as for most intentional torts, as completed torts, even if the damages are nominal or unascertainable (see Prosser, Torts [4th ed], pp 35, 66-67; cf. id., pp 762-763, 948).

It is not from the mere hiring of Wetzel that the inferences against De Dietrich are drawn. The record shows much more. De Dietrich’s president, for instance, testified that their own firing process was a proprietary secret. It is undisputed that a good portion of the equipment to be reglassed in New Jersey will be Sybron vessels. On any view of the evidence Wetzel was familiar with the process used by Sybron. That he may have been hired primarily with a view towards exploiting his experience for the benefit of De Dietrich, therefore, is a logical, if not necessary, inference.

. El] As a matter of policy, no improper restraint on employees is worked by treating as a tort the hiring of Wetzel with the intention to acquire the benefit of Sybron’s trade secrets. Injunctive relief is not now reinstated, nor, in deciding the threshold jurisdictional question, is it relevant. Should a preliminary injunction be reinstated or a permanent injunction granted, Sybron’s proof will have to be strong enough to justify this drastic remedy. That issue is not now before this court for review. The issue at this juncture is only whether the action should die.

There is another basis on which the exercise of jurisdiction may be sustained. As noted, the admitted and controverted facts give rise to the probable inference that there is a conscious plan to engage in unfair competition and misappropriation of trade secrets. That should be enough to justify application of CPLR 302 (subd [a], par 3). If a tort must already have been committed for jurisdiction to be available under the statute, then that section would never be usable by a plaintiff seeking anticipatory injunctive relief. Such a result is unacceptable.

The more difficult question is whether the out-of-State acts ascribed to De Dietrich will result in injury in New York (see, generally, McLaughlin, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR C302:20, pp 87-88). CPLR 302 (subd [a], par 3), as noted, was added after the Feathers case (15 NY2d 443, supra) to fill a statutory gap. Some contend, therefore, that it was not motivated with commercial torts in mind where the locus of injury is not as readily identifiable as it is in torts causing physical harm (see, e.g., Chemical Bank v World Hockey Assn., 403 F Supp 1374, 1379). And, indeed, in the legislative history of the 1966 addition there is no discussion of commercial cases (see Reese, A Study of CPLR 302 in Light of Recent Judicial Decisions, Eleventh Ann Report of NY Judicial Conference, 1966, pp 132-138; Twelfth Ann Report of NY Judicial Conference, 1967, pp 339-344).

It is equally significant, however, that nowhere in the pertinent studies or reports were commercial torts excluded. Most important, save for the exclusion of causes of action for defamation (a specific exclusion of a nonphysical harm), the statute, drafted by sophisticated experts, does not limit the kinds of tortious acts covered to personal injury, property damage, or other noncommercial torts. Under such circumstances the statute should be read with the breadth it easily carries, and the unqualified legislative enactment respected.

It has been said that remote injuries located in New York solely because of domicile or incorporation here do not satisfy CPLR 302 (subd [a], par 3) (see, e.g., American Eutectic Welding Alloys Sales Co. v Dytron Alloys Corp., 439 F2d 428, 433-435; Friedr. Zoellner [New York] Corp. v Tex Metals Co., 396 F2d 300, 303). Plaintiff’s case does not rest on so narrow a foundation nor does its case depend on whether unfair competition injures it in every State in which it does business. It is, however, critical that it is New York where plaintiff manufactures and relines glass-lined equipment and the alleged trade secrets were acquired, and the economic injury plaintiff seeks to avert stems from the threatened loss of important New York customers.

It also need not be decided whether the loss of a small New York account would suffice. From the hearing testimony it may be inferred that, should plaintiff’s alleged trade secrets be disclosed, business from New York sales could suffer significantly. It was shown, for instance, that De Dietrich sales persons have actively solicited Sybron’s Rochester neighbor, the multinational Eastman Kodak Company, a major customer of Sybron. In fact, by September, 1977, Kodak ordered from De Dietrich two 500-gallon reactors.

American Eutectic Welding Alloys Sales Co. v Dytron Alloys Corp. (439 F2d 428, 432-435, supra [Feinberg, J.]) supports the analysis. It is true that no injury within New York was found in the American Eutectic case, but in rejecting jurisdiction the court stressed that the only customers wrongfully solicited by defendants were located outside New York. (Accord Spectacular Promotions v Radio Sta. WING, 272 F Supp 734, 737.)

That the extraterritorial conduct of De Dietrich produces injury in New York does not, however, end the matter. The drafters of paragraph 3 sought to insure its constitutionality by further requiring that the nonresident either have reason to foresee that its actions will produce forum consequences or have enough other "contacts” with the State so as to make the exercise of personal jurisdiction reasonable (Twelfth Ann Report of NY Judicial Conference, 1967, pp 342-343).

It is not disputed that De Dietrich derives substantial revenue from interstate or international commerce. What is questioned is whether the New Jersey based De Dietrich should expect the hiring of Wetzel from Florida to have consequences in New York. Given that Sybron manufactures the equipment in New York, that Wetzel worked at Sybron in New York for 34 years, and that Sybron customers in New York are being pursued, it is reasonable that De Dietrich foresee New York as the place injury will occur. Thus, the requirements of clause ii of paragraph 3 are also met, and De Dietrich should be subject to the personal jurisdiction of the court.

As noted earlier, this court may not review denial of the preliminary injunction as to Wetzel. Contrary to the holding at the Appellate Division, however, at this stage of the proceedings it cannot be concluded that Wetzel, with his intimate knowledge of plaintiffs glassing techniques, was not in possession of trade secrets. Comment on the merits, therefore, is required.

The project engineer for Eastman Kodak, for one example, testified that De Dietrich’s regional manager refused to discuss with him, because they are proprietary secrets, the thickness of the frit coatings, that is, the application of glass formula before its vitrification, and the exact number of firing cycles used by De Dietrich. Similarly, De Dietrich’s president testified that the technique in firing the glass-lined vessels was a proprietary secret. Yet, according to plaintiffs witnesses, this is precisely the kind of proprietary information Wetzel acquired over his many years with Sybron and Pfaudler. Notwithstanding De Dietrich’s assertion that Wetzel is to follow De Dietrich practices exclusively, it is significant that Sybron vessels will make up a substantial portion of the equipment to be reglassed in New Jersey.

On his own testimony, Wetzel worked with the man in charge of ceramics, the one "with all the secret formulas”, on an almost daily basis. According to high Sybron employees, Wetzel sat in on weekly meetings where new processes were discussed, and the suggestions he offered to cure problems in the glassing and welding areas were frequently adopted. Significant too are Wetzel’s visits to the Mexican factory on behalf of Sybron, assertedly made because of his intimate knowledge of Sybron techniques. Also bearing on Wetzel’s knowledge of secrets is the contention that only a limited number of employees had knowledge of Sybron’s processes, and there was not unlimited access to the plant area in which Wetzel worked.

This is not to say, conclusively, that Wetzel possessed trade secrets. Defendants introduced testimony to establish that Wetzel had not acquired proprietary information. That he had no knowledge of glass formulas, that strangers had toured the Sybron plant, and that Wetzel’s value was assertedly his skill and judgment in supervising the processes are all relevant to the ultimate determination. The parties, moreover, would have undoubtedly offered additional evidence prior to final disposition of the merits. Indeed, counsel’s response to the hearing court’s curtailing of the evidence indicates that his full case had not been developed. A further complication is that, because trade secrets are involved, on a trial some of the proof would be received in camera, as suggested by plaintiffs counsel in the injunction hearing when he thought the cross-examination was intruding into delicate territory.

In short, with respect to the matter of trade secrets the issue was deliberately never fully explored on the preliminary motion, and no one then intended that it should be. It is enough that there was a showing of a sharply controverted issue of fact not resolvable by the Appellate Division by summary dismissal of the action.

Accordingly, the order of the Appellate Division, insofar as it dismisses the complaint as to both defendants, should be reversed, with costs, and the action reinstated, and the order should otherwise be affirmed.

Wachtler, J.

(dissenting). The order of the Appellate Division should be affirmed insofar as it dismissed the suit against De Dietrich for lack of jurisdiction.

The relevant portion of CPLR 302 (subd [a]) provides that the courts of this State may exercise personal jurisdiction over a nondomiciliary who "(3) commits a tortious act without the state causing injury to person or property within the state * * * if he * * * (ii) expects or should reasonably expect the act to have consequences in the state and derives substantial revenue from interstate or international commerce.” Here it is claimed that the defendant Wetzel acquired trade secrets from the plaintiff, a New York corporation, during the course of his employment and that disclosure to or use of them by the defendant De Dietrich, a New Jersey corporation, would cause injury to the plaintiff in this State. There is however no claim that De Dietrich is using the plaintiffs trade secrets nor, in fact, is there any contention that Wetzel has actually disclosed any trade secrets to De Dietrich. The only action which De Dietrich has taken thus far is to employ Wetzel and it is conceded that this is not prohibited by the trade secret agreement Wetzel signed while in the plaintiffs employ.

There is no need at this stage to consider whether there has been a sufficient showing that Wetzel does in fact possess trade secrets or, the more difficult question, as to whether disclosure or use of them would cause injury in New York. Even if these factors could be sufficiently established, De Dietrich would still not be subject to jurisdiction under the statute unless it had acted tortiously with respect to the information. The preliminary and fundamental requirement for asserting jurisdiction pursuant to CPLR 302 (subd [a], par 3) is that the defendant has committed "a tortious act”. Furthermore, although cogent arguments could be made that the Legislature might, and perhaps should, extend the reach of the long-arm statute to include cases where a nondomiciliary’s conduct threatens harm in New York, the wording and history of the present section show that all it was intended to accomplish was to confer jurisdiction in those cases where a nondomiciliary has actually committed a tort (see Twelfth Ann Report of NY Judicial Conference, 1967, pp 339-344). The question then is not whether De Dietrich’s hiring of Wetzel threatens harm to the plaintiff sufficient to obtain anticipatory or injunctive relief, but whether this act itself may be said to constitute a completed tort.

The plaintiff concedes that normally the hiring of an individual is an innocent act but contends that in this case it became tortious because De Dietrich hired Wetzel in order to "gain access to plaintiff’s trade secrets.” The majority, however, attempts to make a better case for the plaintiff. According to the majority the "probable inferences from the admitted and controverted facts indicate a conscious plan to engage in unfair competition and misappropriation of Sybron’s trade secrets.” The implication apparently is that both defendants have entered a conspiracy to misappropriate trade secrets belonging to the plaintiff.

Traditionally tort liability has only been found in those cases where there has been actual disclosure or use of trade secrets (see, e.g., Restatement, Torts, §§ 757, 758, 759; Town & Country House & Home Serv. v Newbery, 3 NY2d 554). Neither the plaintiff nor the majority have cited any case or authority in which it has been held or suggested that the hiring of a competitor’s former employee is a tortious act in itself because, under the circumstances, it may be inferred that there may be an intention or agreement to obtain trade secrets.

In my view there are sound policy reasons why the De Dietrich’s hiring of the plaintiff’s former employee should not be considered an actionable wrong. The law with respect to trade secrets represents a delicate balance of competing interests. On the one hand there is the employer’s legitimate concern with preventing employees or former employees from disclosing trade secrets for use by competitors (see, e.g., Kaumagraph Co. v Stampograph Co., 235 NY 1, 6). On the other hand the employee has a legitimate right to move from place to place and to advance in his trade by seeking other employment opportunities (see, e.g., Reed, Roberts Assoc. v Strauman, 40 NY2d 303, 307). Beyond the private concerns there is the public interest in insuring the existence of a large and mobile force of skilled workers in a mechanized economy based on competition (Reed, Roberts Assoc. v Strauman, supra, at p 307). Thus while the law recognizes the right of an employer to protect his trade secrets it seeks to insure that he does not stifle competition (Kaumagraph Co. v Stampograph Co., supra, at p 6). And because "powerful considerations of public policy * * * militate against sanctioning the loss of a man’s livelihood” the courts will not grant an employer more relief than is necessary to prevent the former employee’s use or disclosure of trade secrets (Purchasing Assoc. v Weitz, 13 NY2d 267, 272; see, also, Town & Country House & Home Serv. v Newbery, 3 NY2d 554, supra; Paramount Pad Co. v Baumrind, 4 NY2d 393).

In this case there is no legitimate reason for recognizing the plaintiffs claim that De Dietrich’s hiring of Wetzel should be considered an actionable wrong. The plaintiff does not seek damages and indeed the majority notes that any injury is "still anticipated”. Characterizing this defendant’s conduct as tortious is only necessary to avoid the restrictions of the long-arm statute which would otherwise deny the courts of this State jurisdiction to grant the plaintiff the injunctive relief it actually seeks.

By reaching out to find jurisdiction in this case the majority has created a cause of action which can only serve to further inhibit the movement of skilled workers from one employer to another. In fact, in many instances it may result in their becoming virtual serfs of their former employers. Undoubtedly most skilled employees are privy to some trade secrets or procedures which their employers consider confidential. Thus in any case where a skilled worker obtains employment with a rival, an inference may be drawn that it was contemplated or agreed that the employee will disclose or use his former employer’s trade secrets. Consequently, in virtually any case, one who merely hires a skilled employee will run the risk of being found guilty of unfair competition, even though there has been no actual disclosure or use of the former employer’s trade secrets. This additional impediment is not outweighed or even justified by any legitimate interest the plaintiff, or the majority, has demonstrated in this case.

Accordingly I would affirm the Appellate Division’s dismissal of the suit against De Dietrich.

Judges Jasen, Jones and Fuchsberg concur with Chief Judge Breitel; Judge Wachtler dissents in part and votes to modify in accordance with his dissenting opinion in which Judge Cooke concurs; Judge Gabrielli taking no part.

Order modified, with costs, in accordance with the opinion herein and, as so modified, affirmed.


author: Fuchsberg, J. Chief Judge Breitel

text:
    George Backer Management Corp., Respondent, v Acme Quilting Co., Inc., Appellant.
    Argued October 17, 1978;
    decided December 7, 1978

      POINTS OF COUNSEL

      Richard M. Zaroff, Stanley H. Schindler and Burton I. Manis for appellant.
    I. Leases of commercial property in the City of New York must be governed and construed by the same general principles of law applicable to other written agreements. (New York Mdse. Co. v 23rd St. Props., 49 AD2d 849.) II. Applying time-tested principles of construction of written agreements and equity, it was error to grant plaintiffs motion for summary judgment. (Brandwein v Provident Mut. Life Ins. Co. of Phila., 3 NY2d 491; Roth v Johnnides, 19 Misc 2d 835; Barash v Pennsylvania Term. Real Estate Corp., 26 NY2d 77; Eastern Air Lines v Trans Caribbean Airways, 29 AD2d 379, 23 NY2d 709; Dawn Frosted Meats v Insurance Co. of North Amer., 62 Misc 2d 995, 36 AD2d 580; Angerosa v White Co., 248 App Div 425, 275 NY 524; Mandel v Liebman, 303 NY 88; Tai On Luck Corp. v Cirota, 35 AD2d 380.)

      Jay A. Kranis and Charles L. Sylvester for respondent.
    I. Acme is not entitled to reformation of paragraph 39(b) because it cannot, as a matter of law, claim fraud or mutual mistake. (New York Mdse. v 23rd St. Props., 49 AD2d 849, 38 NY2d 707; Davidowitz v Dixie Assoc., 76 Misc 2d 554, 44 AD2d 535; Weinstein v Arlington Oaks, 286 App Div 1102; Adams v Clark, 239 NY 403; Channel Master Corp. v Aluminum Ltd. Sales, 2 AD2d 933; Matter of Proctor Securities Corp. v Handler, 7 Misc 2d 9; Brandwein v Provident Mut. Life Ins. Co. of Phila., 3 NY2d 491; Roth v Johnnides, 19 Misc 2d 835; Barash v Pennsylvania Term. Real Estate Corp., 26 NY2d 77; Hickey v Morrell, 102 NY 454.) II. Paragraph 39(b) is neither ambiguous nor unconscionable. (New York Mdse. Co. v 23rd St. Props., 49 AD2d 849, 38 NY2d 707; Graff v Transitube, 90 Misc 2d 879; City of Hope v Fisk Bldg. Assoc., 53 AD2d 534; Amend v Hurley, 293 NY 587; State Bank of Albany v Hickey, 29 AD2d 993, 23 NY2d 910; Backus v MacLaury, 278 App Div 504, 303 NY 1011; Tai On Luck Corp. v Cirota, 35 AD2d 380, 29 NY2d 747.)
   OPINION OF THE COURT

Fuchsberg, J.

Early in 1970, appellant, Acme Quilting Company, entered into an agreement with the respondent, George Backer Management Corporation, for the rental of office space in the respondent’s building. The lease the parties ultimately signed included an escalation clause under which increases are keyed to certain wage rate increases. The dispute in this case, in the main raising issues of ambiguity, mutual mistake, fraud and unconscionability, revolves about that clause.

The clause is paragraph 39(b) of the lease. It provides that if, in any year of the lease, "the RAB [Realty Advisory Board] rate shall be greater than the RAB Labor Rate [for the period of 12 months prior to the commencement date], the Tenant shall pay to Landlord as additional rent * * * an amount equal to the product obtained by multiplying the Wage Rate Multiple by three-quarters (%) of the number of cents * * * by which the RAB Labor Rate * * * exceeds the RAB Labor Rate for the Base year”. The lease also tells us that "Wage Rate Multiple” shall mean the figure 7,245.

The RAB labor rate is defined in paragraph 39(b) as: "the aggregate of (a) the average of the minimum regular hourly wage rates for porters, handymen, elevator operators, starters and watchmen as applied to this building pursuant to an agreement between the Realty Advisory Board on Labor Relations, Incorporated (or any successor thereto) and Local 32-B of the Building Service Employees International Union, AFL-CIO (or any successor thereto) or, if no such agreement is in effect at such time, the average of the minimum regular hourly wage rates then actually being paid by Landlord or by the independent contractors who furnish such services to the demised premises, (b) the total amount, computed on an hourly basis, of social security, unemployment and disability insurance and payroll and other taxes imposed upon or measured by such wages, and (c) the total amount, computed on an hourly basis, of all benefits required by law and/or such agreement to be paid to or for such personnel.”

It is clear from the record that there was nothing routine about the way in which these provisions came into being. It would be impossible to argue that they contained any element of adhesion. Backer, by its treasurer, Arthur Lukach, first submitted a proposed lease. It was then analyzed by Acme’s vice-president, Richard Rattner, who was not only a member of the Bar but, perhaps more important in the present context, a corporate executive in the multimillion dollar business of his principal with 20 years of business experience behind him. Rattner did not rest on his analysis; he prepared a comprehensive memorandum on certain of its provisions, including the very clause with which we are now concerned.

Additionally, by happenstance, the course of the negotiations required both sides to repeatedly focus on it. For example, though the initial discussions were suspended because of uncertainty over whether the existing tenant would vacate within the time required for Acme to commence occupancy, they were thereafter resumed with renewed vigor when Acme’s broker discovered other suitable space in the building. Again, a lease containing the identical escalation clause was reviewed by Acme, which this time offered to sign the lease but raised specific written objections to the escalation clause. Backer’s response was to reject the offer. Shortly thereafter, a fresh series of negotiations was undertaken at the instance of another broker. Once more, the rent escalation provision merited special attention. But despite what Acme concedes were extensive discussions between Rattner and Lukach, while Acme succeeded in having certain changes incorporated into the lease, the escalation clause was completely intact when the document was executed. From beginning to end the discussions took roughly half a year.

The record also reveals that, since it was not a member of the owners’ unit for which the Realty Advisory Board would act in negotiating industry-wide collective bargaining agreements with labor unions representing the classes of employees whose wages were involved here, Backer was not bound to, and in fact did not, accept the RAB’s labor scale for its employees. The scale in effect at its building was a lower one.

After a period during which Backer had not billed Acme for increases responsive to the RAB standard, the time came when Acme, no doubt because the RAB had negotiated a new scale providing for a substantial increase in wages, refused to comply with Backer’s demand that it remit payment in an amount reflecting the application of 39(b) to the RAB rate. Backer then commenced suit to recover the arrearages so computed. Acme, characterizing paragraph 39(b) as "shamefully ambiguous and unintelligible” and urging, by way of affirmative defense, that it was unconscionable, asserted that the clause should be read to limit the escalation to sums computed by reference to wage increases actually paid by the landlord. It further alleged that Lukach, on Backer’s behalf, had expressly represented that the cost of any increase to Acme "in no event, would exceed an amount equal to four or five per cent of the base rate for any particular year”. These grounds, according to Acme, entitled it to have the lease provision reformed under a theory of mutual mistake or, in the alternative, mistake on its part and fraud on the part of Backer.

The Supreme Court, finding the clause ambiguous and the facts controverted, entered an order denying Backer’s summary judgment motion. The Appellate Division unanimously reversed on the law, granted the motion as to liability only and remanded for assessment of damages. The parties having stipulated on the amount due in lieu of assessment, final judgment was then entered by the Supreme Court. On this appeal by Acme, the order of the Appellate Division is now brought up for review pursuant to CPLR 5601 (subd [d]). For the reasons hereinafter detailed, we believe the order should be affirmed.

Looking first at the claim of ambiguity, we observe that a lease is subject to the rules of construction applicable to any other agreement (Farrell Lines v City of New York, 30 NY2d 76, 82). We also note that the lease in this case was entered into at arm’s length and, ultimately, on terms — most particularly those contained in the lease’s rider where paragraph 39(b) is to be found — which were the residue of suggestions and countersuggestions on which each of the two sophisticated parties had attempted to persuade the other to join it in a meeting of the minds. True, the language of the clause may seem dull and labored to the uninitiated, an unremarkable circumstance because it recites what is largely a mathematical formula to be applied on stated contingencies. But, taken step by step, any semblance of complexity disappears. Moreover, it was not a novel provision, but one commonly found in New York City commercial leases (see Romance Bridals v 1385 Broadway Co., NYLJ, Jan. 27, 1976, p 6, col 3 [Fein, J.]).

Acme, however, going beyond the description of the formula which consumes most of the clause, contends that the words "as applied to this building” must limit the wage calculation to those employees working on the property itself. This interpretation, though, is at odds with the thrust of the remainder of that sentence of paragraph 39(b) which refers to the RAB collective bargaining contract’s schedule of varying wage rates for employees of different classes of buildings. It seems obvious to us that the purpose of that reference was to relate additional rent increases to a fluctuating factor beyond the control of either party, namely, the RAB wage rate for particular employees; that undertaking is not qualified by any condition that Backer be a party to the RAB agreement.

Significantly, the lease contains no requirement that rent escalations be measured by actual costs as opposed to the common industry-wide criterion chosen by the parties here. Had that been their intention, surely no problem of draftsmanship would have stood in the way of its being spelled out. Language as simple as that in the first sentence of this paragraph would have served the purpose. Instead, 39(b) explicitly states that the actual wages paid to building employees are not to be considered unless no collective bargaining agreement is in effect.

Nor was the operation of the clause unconscionable. Acme assumed the precise risk of which it now complains— that the RAB labor rate would rise so as to substantially increase its monthly rental payments. But parties are free to make their own contracts. Here Backer no doubt believed that it was to its economic advantage to tie the rent escalation clause to the RAB rate; though it needed no other reason, perhaps Backer also believed that if it were able to operate the building at lower than prevailing cost, it and not the tenants should be the beneficiary of its enterprise. Acme’s view, fueled by its own self-interest, understandably would be the opposite.

Once a contract is made, only in unusual circumstances will a court relieve the parties of the duty of abiding by it. By no means did such circumstances exist here. Indeed, the indexing of rent or wage increases to outside factors, such as, for instance, the cost of living index, which may or may not directly affect particular parties, is commonplace. So, a cost of living clause in a lease would certainly be enforceable though, by reason of a fixed long-term mortgage or fixed ground rent or stability in the real estate tax rate or all of these, a particular landlord is largely insulated from the effects of rising costs. Thus, the wage rate clause here contravened no principle of public policy nor is its effect so onerous as to shock the conscience (cf. Mandel v Liebman, 303 NY 88, 93-94; Real Property Law, § 235-c). Hence, judicial interpretation will not relieve Acme of what it may now regard as a burdensome bargain.

We turn now to Acme’s claim for reformation. Its allegation of mutual mistake or fraudulently induced unilateral mistake describes the classic grounds for such relief (Albany City Sav. Inst. v Burdick, 87 NY 40, 47; 3 Pomeroy, Equity Jurisprudence [5th ed], § 870; Restatement, Contracts, §§ 504, 505). The claim of mutual mistake need not detain us. The undisputed history of the negotiations demonstrates beyond cavil that the language of the clause that Lukach proposed and to which he resolutely adhered reflects precisely what the lessor intended^ and the unilateral mistake of Acme would not suffice to invoke reformation (Curtis v Albee, 167 NY 360, 365; 3 Pomeroy, Equity Jurisprudence [5th ed], § 870a). Acme posits its alternate claim of fraudulently induced unilateral mistake on the oral misrepresentations allegedly made by Lukach to induce in Rattner a mistaken conception as to the operation of the wage rate escalation provision. On this theory, too, we must deny the requested relief.

Reformation is not granted for the purpose of alleviating a hard or oppressive bargain, but rather to restate the intended terms of an agreement when the writing that memorializes that agreement is at variance with the intent of both parties (Ross v Food Specialties, 6 NY2d 336, 341; 13 Williston, Contracts [3d ed], §§ 1548, 1549). Equity evolved the doctrine because an action at law afforded no relief against an instrument secured by fraud or as a result of mutual mistake(see 5 Holdsworth, History of English Law, pp 292-293, 327-328). But to overcome the heavy presumption that a deliberately prepared and executed written instrument manifested the true intention of the parties, evidence of a very high order is required (Christopher & Tenth St. R. R. Co. v Twenty-Third St. Ry. Co., 149 NY 51, 58). And well that it is, for freedom to contract would not long survive courts’ ready remaking of contracts that parties have agreed upon (Nash v Kornblum, 12 NY2d 42, 46). All the more so when a litigant seeks to invoke the power of the court, not merely to sever the contractual relationship between the parties, but, as here, to continue that relationship in a modified form. It follows that a petitioning party has to show in no uncertain terms, not only that mistake or fraud exists, but exactly what was really agreed upon between the parties (Williston, Contracts [3d ed], §§ 1548, 1597).

The requisite standard of proof has been stated variously (Amend v Hurley, 293 NY 587, 595 ["clear, positive and convincing evidence” so as to demonstrate not the probability by the certainty of error in the making of the contract]; Porter v Commercial Cas. Ins. Co., 292 NY 176, 181 ["evidence of the clearest and most satisfactory character”]; Christopher & Tenth St. R. R. Co. v Twenty-third St. Ry. Co., supra, p 58 [proof of "the most substantial and convincing character”]). Allowing for difference in expression, all the cases demand a high order of proof. It would serve no purpose to add yet another definition. Rather, the definitions may more easily be conceptualized for our present purposes if we think in terms of what is to be avoided. Viewed from that perspective, the evidentiary requirement " 'operate[s] as a weighty caution upon the minds of all judges, and it forbids relief whenever the evidence is loose, equivocal or contradictory’ ” (Southard v Curley, 134 NY 148, 151).

As a matter of law, no showing free of contradiction or equivocation comes through from the affidavits submitted by Acme. The history of the lease negotiations between Backer and Acme discloses continuing awareness on the prospective tenant’s part that the wage rate escalation provision might be potentially disadvantageous. The negotiations were conducted in a most businesslike, meticulous and unhurried manner by both sides. These produced substantial economic modifications to Acme’s advantage. And, only a month before the culmination of the negotiations, when Rattner advised Lukach that he was not satisfied with the clause, the latter remained steadfast and the lease containing the now objectionable provision was accepted by the tenant in unchanged form.

Furthermore, patently, Lukach’s purported oral interpretation of the clause as limiting Acme’s liability to about "four or five percent” of the actual wage rate sets forth no reasonable ground for reliance. The very indefiniteness of the figures confirms this statement as an expression of opinion rather than of fact. Above all, it did not relate to a concrete fact or a past or existing event. At best, it was no more than an expression of expectations as to labor agreements which had not yet been negotiated and the outcome of which, as both parties knew, could not be foretold. As a matter of law, then, it cannot form the basis for a claim of misrepresentation (see Woodmere Academy v Steinberg, 41 NY2d 746, 751).

Accordingly, mindful that this is an appeal from the disposition of a summary judgment motion, we conclude that the evidentiary facts put forth to defeat Backer’s motion were insufficient to achieve that end. Even if, given the procedural posture, we accept Rattner’s credibility, Acme has not demonstrated a bona fide and substantial defense. (See Capelin Assoc. v Globe Mfg. Corp., 34 NY2d 338, 343; Julien J. Studley, Inc. v Goldner, 28 AD2d 1103; 6 Carmody-Wait 2d, NY Prac, § 39:33, p 483.)

Therefore, the judgment appealed from and the order of the Appellate Division now brought up for review must be affirmed.

Chief Judge Breitel

(dissenting). I would reverse and deny summary judgment to plaintiff. Clause 39(b) of the lease is ambiguous. The reference to the Realty Advisory Board collective agreement is unclear. It does not make explicit whether the labor rates in that agreement apply to the building in question even if the landlord is paying lower rates than those provided for in the collective agreement. The clause is ambiguous, too, in using the word "applied” rather than "applicable” in subdivision (i)(a) of clause 39(b). The ambiguity is then compounded in that same subdivision by the alternative computation if "no such agreement is in effect” because that computation may apply if "no such agreement is in effect” in the industry or it may apply if there has been such agreement in the industry, but it is not in effect as to the building in question.

Given the ambiguity, the parol evidence tendered in the tenant’s affidavit would not vary or contradict the written agreement, but would shed light on the meaning of the ambiguous terms. Moreover, the same evidence would certainly be admissible to justify reformation by establishing fraud on one side and misunderstanding on the other. This, of course, is not to say that I would conclude one way or another whether tenant’s position should be accepted, but I do conclude that an issue of fact exists in the submissions.

Lastly, the reference to tenant’s negotiator-representative as a lawyer is misleading. He practiced tort law for a brief period in California and for over two decades has been a businessman in various executive positions of middle rank with a series of financial and merchandising or manufacturing corporations. On the other hand, his contemporaneously made memorandum lends support to his version of the negotiations.

Judges Jasen, Gabrielli, Wachtler and Cooke concur with Judge Fuchsberg; Chief Judge Breitel dissents and votes to reverse in a separate opinion in which Judge Jones concurs.

Judgment appealed from and order of the Appellate Division brought up for review affirmed, with costs.

      . All further references to an escalation clause in this opinion are to paragraph 39(b). Among its other provisions, the lease also contained a real estate tax escalation clause.

      . In the courts below, Acme also unsuccessfully argued that Backer’s acceptance of the base rent in the first year of the lease constituted an estoppel against Backer demanding greater amounts. This point, however, is not raised by Acme on this appeal.

      . It did grant summary judgment as to Acme’s additional rent liability under the separate real estate tax escalation clause as to which Acme admitted liability.


author: Fuchsberg, J.

text:
    Rotuba Extruders, Inc., Appellant, v Kenneth Ceppos et al., Respondents.
    Submitted October 27, 1978;
    decided December 27, 1978

      POINTS OF COUNSEL

      Murray L. Skala and Gabriel Kaszovitz for appellant.
    I. Summary judgment is mandated in the instant case by reason of the form of the signature on the notes and the failure of respondents to raise any triable issue of fact. The court below erred in its reversal. (Star Dairy v Roberts, 37 AD2d 1038; Paul v Weiss, 48 Misc 2d 683, 24 AD2d 1054; Welch v Campbell, 197 Misc 165, 278 App Div 605.) II. The affirmation by respondents’ attorney submitted in opposition to the motion for summary judgment should properly be disregarded since it was made by a person lacking personal knowledge of the facts. The affirmation and sur reply affidavit should both be disregarded because they fail to present evidentiary facts necessary to overcome the liability created by the Uniform Commercial Code (§ 3-403, subd [2], par [b]). (Capelin Assoc. v Globe Mfg. Corp., 34 NY2d 338; Penney Co. v McLean Trucking Co., 42 AD2d 508, 36 NY2d 733; V. A. W. of Amer. v General Elec. Co., 38 AD2d 989; Iandoli v Lange, 35 AD2d 793; Snelson v SGM Catering, 47 AD2d 903; Rosemont Enterprises v Choppy Prods., 74 Misc 2d 1003; Mallad Constr. Corp. v

      County Fed. Sav. & Loan Assn., 32 NY2d 285; Newmark v Weingrad, 43 AD2d 983; Shapiro v Health Ins. Plan of Greater N. Y., 7 NY2d 56; Holdridge v Town of Burlington, 32 AD2d 581.)

      Bernard Levy for respondents.
    I. The court below correctly reversed the order granting summary judgment because respondents clearly demonstrated a triable issue of fact as to the capacity in which the notes were executed. (Gray v Unigard Mut. Ins. Co., 47 AD2d 691; Nesbitt v Nimmich, 34 AD2d 958, 30 NY2d 622; RKO-Stanely Warner Theatres v Shore, 41 AD2d 730, 33 NY2d 823; Welch v Campbell, 197 Misc 165, 278 App Div 605.) II. The court below was not required to specifically address the Uniform Commercial Code (§ 3-403, subd [2], par [b]) on a summary judgment motion inasmuch as that statute governs questions of ultimate liability. (Esteve v Abad, 271 App Div 725; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395.)
   OPINION OF THE COURT

Fuchsberg, J.

This appeal, in an action between the immediate parties to a series of negotiable instruments, calls upon us to determine what measure of proof is required to free from personal liability an authorized representative who signs his own name to a series of negotiable instruments that name the principal represented but do not show that the representative signed in a representative capacity. The issue falls squarely within section 3-403 (subd [2], par [b]) of the New York Uniform Commercial Code.

Pursuant to CPLR 3213, plaintiff, the Rotuba Extruders, Inc., initiated the action by the service of a summons, complaint and notice of motion for partial summary judgment in lieu of complaint. The summary judgment was sought on the first cause of action, which was brought against the defendant Kenneth Ceppos on seven promissory notes in the aggregate face amount of $33,898.80. These notes had been delivered to plaintiff between February and May, 1976, in payment for goods sold and delivered to Kenbert Lighting Industries, Inc., a close corporation of which Kenneth Ceppos was the chief executive officer and of which Robert Ceppos and Daniel Ceppos were the other principals. Rotuba apparently then considered Kenbert so precarious a credit risk that, as set forth in its verified complaint, it was insistent that one of the three Ceppos’ guarantee payment for goods sold to Kenbert. When the first notes went unpaid upon presentation for payment, Rotuba first brought an action against Kenbert. Shortly thereafter, as the due date of the remaining notes approached, Kenbert filed a voluntary petition under chapter 11 of the Federal Bankruptcy Laws. Rotuba thereupon initiated the present action against the individual defendants.

Except for the dates, amounts and bank where they were to be presented which were in handwriting, and the face amount for which each was made, which had been inserted by a mechanical check-writing device, the notes were each on an identical printed form. In addition, the word "we” had been written in a blank space obviously provided for the insertion of a plural or singular pronoun. On the single printed line provided for a signature in the lower right-hand corner of each note appeared the signature of Kenneth Ceppos and, in a space immediately above this, in what is apparently a different handwriting, were the words "Kenbert Lighting Ind. Inc.” No word or symbol, not even as much as "by” or "for”, appeared to signify that Kenneth Ceppos was acting in a representative capacity in affixing his signature. Nor was there any designation of any office or position that Kenneth Ceppos held with Kenbert.

The exact language of the first note, which save for differences in the amount and date of each is for all practical purposes a duplicate of the other six, appears as follows:

$3,000.00 February 11, 1976

May 25, 1976 after date we promise to pay to the order of Rotuba Extruders, Inc._

The Sum of $3,000 dols 00 cents_Dollars at Chemical Bank Randall and Faile Sts. Bronx New York 10474 Value Received No interest Kenbert Lighting Ind. Inc.

No._ Due 5/25/76 Kenneth Ceppos

It is Rotuba’s position on the motion for summary judgment that the notes indicate on their very faces that Kenneth Ceppos is personally liable on them. In opposition, Ceppos contends that a triable issue of fact exists because, as he asserts, the notes are ambiguous on their faces and his intention was only to sign them in a representative capacity. The Supreme Court rejected this argument and granted Rotuba’s motion. On appeal, however, the Appellate Division unanimously reversed in a short memorandum which concluded that "a question of fact is inherent on the face of each note as to who is liable for payment” (58 AD2d 537). For the ensuing reasons, we disagree with that determination.

The pertinent subdivision of section 3-403 of the New York Uniform Commercial Code provides:

"An authorized representative who signs his own name to an instrument

"(a) is personally obligated if the instrument neither names the person represented nor shows that the representative signed in a representative capacity;

"(b) except as otherwise established between the immediate parties, is personally obligated if the instrument names the person represented but does not show that the representative signed in a representative capacity, or if the instrument does not name the person represented but does show that the representative signed in a representative capacity.”

Section 3-403 aims to foster certainty and definiteness in the law of commercial paper, requirements deriving from the "necessity for takers of negotiable instruments to tell at a glance whose obligation they hold” (White & Summers, Uniform Commercial Code, § 13-2, p 399). To make commercial paper "freely negotiable without undue risk” (Financial Assoc. v Impact Marketing, 90 Misc 2d 545, 547), the basic law is that resort to extrinsic proof is impermissible when the face of the instrument itself does not serve to put its holder on notice of the limited liability of a signer (Uniform Commercial Code, § 3-403, subd [2], par [a]; cf. Uniform Commercial Code, § 3-402).

As the statute states, the only exception has to be one that is "otherwise established between the immediate parties”. In adopting this exception, the drafters of the code followed the more liberal pre-existing New York rule permitting proof of an agreement or understanding that personal liability of the signer was not intended (Official Comment 3, McKinney’s Cons Laws of NY, Book 62½, Uniform Commercial Code, § 3-403; see Megowan v Peterson, 173 NY 1, 5-6; Central Bank of Rochester v Gleason, 206 App Div 28, 31).

But the type of showing needed to bring the note within the "except” clause of section 3-403 (subd [2], par [b]) must necessarily amount to more than the mere self-serving allegation of the signer’s subjective intent to sign as representative. To escape personal liability, the signer has the burden to "establish” an agreement, understanding or course of dealing to the contrary (cf. Uniform Commercial Code, § 1-201, subd [3]; § 2-208). Thus, without an affirmative demonstration that the taker of the note knew or understood that the signer intended to execute the instrument in a representative status only, there can be no defense that, notwithstanding the form of the note, representative liability was "otherwise established between the * * * parties” (see Jackson Chevrolet v Oxley, 564 P2d 633, 635-636 [Okla]; Fanning v Hembree Oil Co., 245 Ark 825).

Clearly, the notes in this case fall within the situation contemplated by the statute and, in factual circumstances that meet its requirements, would have permitted Ceppos to rebut the presumption of individual liability (see Official Comment 3, subd [f], McKinney’s Cons Laws of NY, Book 62½, Uniform Commercial Code, § 3-403). Yet, Ceppos neither alleged nor made any evidentiary showing of the mutuality of intent necessary to constitute such an agreement or understanding and, consequently, his affidavit, even when considered with that of his attorney, does not serve to deny Rotuba summary judgment (Commonwealth Bank & Trust Co. v Plotkin, 355 NE2d 917, 919 [Mass]; Seale v Nichols, 505 SW2d 251, 253, revg 493 SW2d 589 [Tex]; cf. Slayton v Lomar Constr. Corp., 4 UCC Rep Serv 955 [NYLJ, Dec. 20, 1967, p 18, col 8]).

Indeed, the affidavits submitted by Ceppos and by his attorney contain no factual allegations that, given the explicit statutory language, would create a triable issue on whether Rotuba knew or should have known that it was Ceppos’ intention to sign the notes in a representative capacity only. The undisclosed intention of Ceppos, without more, does not establish the understanding between the parties required by section 3-403 (subd [2], par [b]) of the Uniform Commercial Code (Southern Nat. Bank of N. C. v Pocock, 29 NC App 52, 57-58). Ceppos’ affidavit does not even disclose such elementary facts as who acted for Rotuba in accepting the notes, what disclosure was made of Ceppos’ unilateral intention, or what manifestation or knowledge of such intention, if any, was made anywhere or to anyone on behalf of Rotuba (see Commonwealth Bank & Trust Co. v Plotkin, supra, at p 919).

Nor was there any evidence to establish that such an understanding between Rotuba and Kenbert was implicit in any alleged course of dealing (cf. Citibank Eastern N. A. v Minbiole, 50 AD2d 1052, 1053). The only documentary evidence alluded to by Ceppos is contained in the affidavit of Rotuba’s president, Albert Bell. It consists of correspondence between Bell and Kenbert’s comptroller approximately one year prior to the transactions here at issue. It confirms that Rotuba requested that Kenneth Ceppos sign as guarantor on a 1975 note in the amount of $3,864. While Ceppos’ lawyer’s hearsay affidavit refers to this transaction as a "prior course of dealing”, it disappears as a possible prop to support any such theory because of Ceppos’ own admission in his own affidavit that this was a single "instance”. Ceppos nevertheless would use this isolated and remote event to mount a theory that, because he had personally guaranteed the note in that year-old instance by indorsing it on the reverse side, this had to be taken to be the "practice” between the parties whenever his individual liability was intended. But the letters do not say so. And there is no claim that an express understanding to that effect was ever the subject of even a single conversation. Above all, by no stretch of the imagination could such a rationalization constitute the "sequence of previous conduct” that it would take to comprise a trade practice or "course of dealing” (Uniform Commercial Code, § 1-205; see Starnheim v Silver Bell of Roslyn, 66 Misc 2d 726; Baumgold Bros. v Allan Fox Co. East, 375 F Supp 807).

In short, Ceppos pointed to nothing that would tend to show that the parties regarded the obligation as a corporate one alone (see Central Bank of Rochester v Gleason, 206 App Div 28, 31, supra; Chips Dist. Corp. v Smith, 48 Misc 2d 1079, 1081-1082). The nature of the transaction here gives no indication that regardless of the faces of the notes, corporate liability and none other was intended by the parties (see Pollin v Mindy Mfg. Co., 211 Pa Super 87, 91-92). Certainly, there was nothing unusual about it. It is common business practice to treat such an obligation as a corporate one, and creditors of small corporations often demand that officers personally obligate themselves on corporate notes (White & Summers, Uniform Commercial Code, § 13-4, pp 403-405; see Britton, Bills & Notes [2d ed, 1961], § 164, p 486).

Nevertheless, because "summary judgment is a drastic remedy and should not be granted where there is any doubt as to the existence of a triable issue” (Moskowitz v Garlock, 23 AD2d 943, 944), we have scrutinized the affidavits carefully, in the light most favorable to Ceppos. But only the existence of a bona fide issue raised by evidentiary facts and not one based on conclusory or irrelevant allegations will suffice to defeat summary judgment (Mallad Constr. Corp. v County Fed. Sav. & Loan Assn., 32 NY2d 285, 290; Rosenberg v Del-Mar Div., Champion Int. Corp., 56 AD2d 576-577). So appraised, in the case before us, the conclusion is unavoidable that the showing Ceppos essayed was lacking in substance. His submissions simply lacked the evidentiary facts on which a meritorius defense could be made out (see 4 Weinstein-Korn-Miller, NY Civ Prac, par 3212.10).

Therefore, the certified question must be answered in the negative, the order of the Appellate Division should be reversed and the order granting summary judgment on the first cause of action must be reinstated.

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

Order reversed, with costs, and the order of the Supreme Court, New York County, granting summary judgment to plaintiff on the first cause of action reinstated. Question certified answered in the negative.

      . The action was brought against all three. The first cause of action, the only one on the notes, was against Kenneth Ceppos alone. A second cause of action alleged that Robert Ceppos and Daniel Ceppos also had guaranteed the underlying obligation. The third cause of action named all three in a suit to recover approximately $25,000 due for additional merchandise for which no notes had been issued. The latter two causes of action were severed from the first in the order granting the motion for partial summary judgment.

      . The expediting procedural section under which this action was commenced (CPLR 3213) is one of the many reflections of this policy to be found in our law (see 4 Weinstein-Korn-Miller, NY Civ Frac, par 3212.02a, pp 32.210-32.211).

      . Interestingly, under an earlier version of the code, section 3-403 (subd [2]) would have imposed personal liability on any representative who signs an instrument that does not both name the person represented and disclose the fact of representative capacity. According to that draft, parol evidence would have been excluded for any purpose except reformation (1955 Report of NY Law Rev Comm, vol 2, p 225).

      . Ceppos’ counsel’s affidavit was not made on personal knowledge of the facts and, hence, could not defeat the motion for summary judgment (CPLR 3212, subd [b]; see Columbia Ribbon & Carbon Co. v A-1-A Corp., 42 NY2d 496, 500). In any event, it no more than reiterates Ceppos’ barebones recitation of his subjective intent.