author: Desmond, J. Dye, J.

text:
    George S. Juba, Appellant, v. General Builders Supply Corp., Respondent, et al., Defendant.
    Submitted March 5, 1959; reargued October 5,1959;
    decided November 25, 1959.

      Henry Hirschberg for appellant'.
    I. The employer may reassign the claim to the employee, and the court has power to compel or enforce such reassignment when necessary for the protection of the employee’s claim. (Magee v. McNany, 10 F. R. D. 5.) II. The amendment to section 29 of the Workmen’s Compensation Law, made by chapter 527 of the Laws of 1951, is retroactive. (O’Brien v. Lodi, 246 N. Y. 46; Caulfield v. Elmhurst Contr. Co., 268 App. Div. 661, 294 N. Y. 803; Commissioners of State Ins. Fund v. United States, 72 F. Supp. 549; Olker v. Salomone, 202 Misc. 1041, 283 App. Div. 948; Plumitallo v. 1407 Broadway Realty Corp., 201 Misc. 277; Bedsole v. Consolidated Edison Co. of N. Y., 203 Misc. 194; Commissioners of State Ins. Fund v. United States, 72 F. Supp. 549; Paschall v. Mooney, 110 F. Supp. 749; Farrell v. American Beverage Corp., 203 Misc. 330.) III. The award of compensation to plaintiff did not operate as an assignment of his third-party action against General Builders Supply Corp. because no payment of compensation was ever made thereon and the award was unenforcible as shown by the admitted facts. (Lunn v. Andrews, 152 Misc. 568, 243 App. Div. 654, 268 N. Y. 538; Ellich v. Hamburg-Amerihanische P. A. Gesellschaft, 226 App. Div. 32, 252 N. Y. 541; Hanke v. New York Cons. R. R. Co., 181 App. Div. 53; Bellanger v. Economy Eng. Co., 245 App. Div. 889; Grossman v. Consolidated Edison Co. of N. Y., 294 N. Y. 39; Matter of Morn

      ingstar v. Corning Baking Co., 6 A D 2d 128; Matter of Sackolwitz v. Hamburg & Co., 295 N. Y. 264; Matter of Westchester Light. Co. v. Westchester Small Estates Corp., 278 N. Y. 175; Matter of Verschleiser v. Stern & Son, 229 N. Y. 192; Matter of Ruso v. Beverwyck Breweries, 276 App. Div. 878; City of New York v. Steers & Menke, 167 Misc. 566, 254 App. Div. 666; Hatch v. Cherry-Burrell Corp., 274 App. Div. 234.)

      Willard B. VanderVoort for respondent.
    I. A “ re-assignment nunc pro tunc ’ ’ cannot be compelled by the court; and the alleged voluntary reassignment has no standing in either pleading or substance. (General Acc. Fire & Life Assur. Corp. v. Zerbe Constr. Co., 269 N. Y. 227; Magee v. McNany, 10 F. R. D. 5; Taylor v. New York Cent. R. R. Co., 294 N. Y. 397; Skakandy v. State of New York, 274 App. Div. 153, 298 N. Y. 886; Cohen v. City Co. of N. Y., 283 N. Y. 112.) II. Chapter 527 of the Laws of 1951, amending section 29 of the Workmen’s Compensation Law, has no retroactive effect. (Olker v. Salomone, 283 App. Div. 948; Waddey v. Waddey, 290 N. Y. 251; Saltser & Weinsier v. McGoldrick, 295 N. Y. 499; Western N. Y. & Pa. Ry. Co. v. City of Buffalo, 296 N. Y. 93.) III. Neither the purpose nor the wording of section 29 of the Workmen’s Compensation Law permits of a construction that a statutory assignment to an employer or carrier is dependent upon his payment of the award. (Hatch v. Cherry-Burrell Corp., 274 App. Div. 234; Carter v. Brooklyn Ladder Co., 265 App. Div. 39; Taylor v. New York Cent. R. R. Co., 294 N. Y. 397.)
   Desmond, J.

The appeal by plaintiff in this personal injury negligence action is from a judgment on the pleadings dismissing the complaint on the ground that plaintiff is not the real party in interest. The question of law is this: when an injured workman has filed a claim for workmen’s compensation and an award has been made to him but remains unpaid because his employer is uninsured and insolvent, does section 29 of the Workmen’s Compensation Law operate to deprive the injured man of his cause of action against a third party for causing the injury, when the injured man has brought suit within three years after the accident (Civ. Prac. Act, § 49) but not within one year after the accident (Workmen’s Compensation Law, § 29)?

Plaintiff alleges that in 1949, while working for one Rossman, he was injured through the negligence of a “ third party ’ defendant-respondent General Builders Supply Corp. He brought this action within the general three-year statutory limitation for personal injury negligence actions (Civ. Prac. Act, § 49). However, his complaint has been dismissed in both courts below on the ground that, since he elected to take workmen’s compensation as against Rossman but failed to bring this present third-party action against General within a year after his accident, the cause of action (under Workmen’s Compensation Law, § 29) passed by automatic assignment to his employer Rossman. Plaintiff points out, however, that, although he elected to take compensation and although a compensation award was made to him (in 1950), he never received any workmen’s compensation (as is admitted) because his employer was not insured and was insolvent. The employer never attempted to bring the third-party suit.

The view taken below was that section 29 absolutely mandates under all circumstances that, if an injured employee has elected to take compensation and especially if an award has been made to him, he automatically loses ownership of any third-party claim at the expiration of the time limited in section 29. Plaintiff, on the contrary, argues from reason and justice that section 29 should not be applied unless there has been not only an election to take compensation and an award, but actual payment thereof. It has been suggested that plaintiff, when he found that his compensation award was uncollectible, should have, or could have, Avithdrawn the compensation claim. HoAvever, no effort has ever been made to withdraw the claim and plaintiff’s counsel disclaims any such theory. There seems to be nothing in the Workmen’s Compensation LaAv about AvithdraAval of a claim or renunciation of an award.

The parties are in agreement that the appeal presents a laAv question of first impression in the courts.

As we all know, the Workmen’s Compensation Law originally forced an injured workman to an election bctAveen a compensation claim and a third-party suit, if any. Later, section 29 was amended to let him pursue both remedies, proAÚded he brought his third-party action not later than six months after the aAvarding of compensation and not more than one year after the accrual of the third-party suit. The-statute in its modern form provides that if the third-party suit be not brought within these limited times it passes by assignment to the employer or compensation insurance carrier and further that, if the latter collects anything on the third-party suit, adjustment is to be made between the injured employee and the employer or carrier. One of the difficulties is that in the second sentence of the first paragraph of section 29 we find the language: 1 ‘ take or intend to take compensation ” and “ not later than six months after the awarding of compensation ’ ’ which language, if taken literally, would mean (as applied to the second paragraph of section 29) that once the employee has filed a claim, or at least after he has had an award, he loses absolutely his right to bring a third-party action if he does not bring it within the shortened time. (We eliminate, as irrelevant here, certain 1951 amendments as to notice, now in the second subdivision of section 29).

In that second paragraph of section 29 there is the provision that, if the third-party action be not brought within these limited times, there shall be an assignment of the cause of action to the employer or carrier 1 ‘ If such injured employee * * * has taken compensation The general and usual meaning of this is (Taylor v. New York Cent. R. R. Co., 294 N. Y. 397; Skakandy v. State of New York, 298 N. Y. 886) that the shortened time as to the employee bringing suit and the automatic assignment of the chose become' operative when and because an award has been made. If we were to follow strictest logic and the usual meaning of words we might have to hold that these consequences do not depend on whether or not compensation has actually been paid. However, that would bring a most unreasonable and probably legislatively unintended result. It would provide an unexpected and unreasonable benefit to the third-party defendant because as to him the three-year time limitation for bringing the third-party suit would be reduced to one year although the injured employee had never received any workmen’s compensation at all (see Grossman v. Consolidated Edison Co., 294 N. Y. 39). Also, application of the literal meaning of the language above quoted from section 29 would produce the result that an uninsured and insolvent employer like Ttossman would acquire a third-party action by assignment although he had never paid any workmen’s compensation and although he had committed a crime in failing to carry workmen’s compensation insurance. If the uninsured and nonpaying employer collected on such an assigned third-party claim he would have in hand money to which he would have no right whatever and he could keep one third thereof for himself (Workmen’s Compensation Law, § 29, subd. 2). This is all so awkward, unnatural and unreal that, so we are convinced, the Legislature could not have intended it. We, therefore, reverse on the ground that a reasonable construction of section 29 forbids an automatic assignment where there has been no payment of compensation. We come to that conclusion not by mere dictum or distortion of apparent statutory meaning but by following settled rules of ascertaining legislative intent by considering the whole statute (People v. Dethloff, 283 N. Y. 309, 315) and its obvious purpose and by reading it in such a way as to avoid manifest injustice and unintended effects (Matter of New York Post Corp. v. Leibowits, 2 N Y 2d 677, 685, and cases cited).

The plaintiff tries to get some benefit from an attempted reassignment of the claim to him .by the employer but we do not accept this as a ground for decision, since a personal injury action is not assignable except by specific statutory authority (Personal Property Law, § 41, subd. 1, par. [1]; General Acc. Fire & Life Assur. Gorp. v. Zerbe Constr. Corp., 269 N. Y. 227).

Although the question is not really before us, we, for consistency, state our view that, although the workmen’s compensation award is still of record, plaintiff has renounced and voided that award by asserting here his ownership of the third-party suit.

The judgment appealed from should be reversed and the motion for judgment on the pleadings denied, with costs in all courts.

Dye, J.

(dissenting). This plaintiff-appellant, having failed to commence his action for personal injuries against a third-party wrongdoer within the time limited by section 29 of the Workmen’s Compensation Law, may not have his time extended under the guise of judicial interpretation, nor may the outlawed claim be resurrected by a reassignment nunc pro tunc whether made voluntarily or by order of the court.

The plaintiff has an award for disability benefits under the Workmen’s Compensation Law which has not been set aside or his claim withdrawn. It happens, however, that the award is uncollectible because his employer was uninsured and is now insolvent.

Section 29 of the Workmen’s Compensation Law, by clear and unambiguous language, provides that an employee who, in the course of his employment, sustains injuries by the negligence of a third party need not elect, in advance, whether to take compensation and medical benefits from his employer or to pursue his remedy against the third-party tort-feasor. However, if he takes such compensation benefits and later desires to pursue his remedy against the third-party wrongdoer, such action must be commenced not later than ‘ ‘ six months after the awarding of compensation” and “in any event before the expiration of one year-from the date such action accrues ”.

Here, the plaintiff sustained the injuries complained of on September 2, 1949. He made claim for compensation and medical benefits and received an award under date of September 2, 1950. Notwithstanding that the award was not paid he waited until August 5, 1952 — nearly three years later — to commence suit against the third-party defendant. In his complaint alleging but a single cause of action, the plaintiff recognized that the cause of action, if any, had long since been transferred to his employer by operation of the statute, and that the latter had neglected to pursue the remedies available within the time limited therefor. To surmount this statutory time barrier the plaintiff procured, ex parte, an order of the Supreme Court permitting him to join his employer as a party defendant.

When the third-party defendant pleaded the automatic statutoiy assignment as a complete defense, and that the plaintiff was not the real party in interest, it was met in reply by an alleged oral agreement to reassign and a postdated writing purporting to be a reassignment. This novel and unusual application of an ancient means to correct inadvertent clerical omissions may not be used to circumvent clearly expressed statutory procedures designed to govern the rights of an employee and his employer in relation to a third-party wrongdoer. To give such a manoeuvre effect would, as I see it, amount to a unilateral repeal of the statutory time limitations respecting the commencement of a third-party action and at the same time change what the Legislature intended to be an absolute assignment into one conditioned on the wishes of the injured employee without regard to time.

We should not assume the function of reading into the statute an exception when its clear and unequivocal language provides what shall happen whenever an employee elects not to pursue his remedy within the time limited therefor. When that occurs the subrogated carrier or employer is free to sue, compromise, abandon or otherwise dispose of the claim for whatever reason, and the employee cannot compel him to litigate it (Taylor v. New York Cent. R. R. Co., 294 N. Y. 397; Skakandy v. State of New York, 298 N. Y. 886; cf. Travelers Ins. Co. v. Brass Goods Mfg. Co., 239 N. Y. 273). Nor may this statutory pronouncement be evaded by either a voluntary reassignment nunc pro tunc, or by one compelled by court order. Section 41 (subd. 1, par. [1]) of the Personal Property Law specifically excepts transfers of any claim to recover damages for a personal injury which but reflects a rule long recognized at common law (General Acc. Fire & Life Assur. Corp. v. Zerbe Constr. Co., 269 N. Y. 227). The Legislature, of course, may enact such laws as seem desirable within its constitutional limitations and they have done so in this instance by providing for the automatic assignment of a third-party claim arising out of injuries sustained during the course of employment, but significantly enough they have not as yet seen fit to condition the absolute effectiveness of such a statutory assignment once the time limitations applicable thereto have applied.

Chapter 527 of the Laws of 1951, amending section 29 of the Workmen’s Compensation Law, may not be construed as having retroactive effect. There can be little doubt as to the Legislature’s intention in this regard, since the Legislature retained the wording of subdivision 2 of section 29 by continuing the automatic assignment provision. This must mean that past statutory assignments continue in full force and effect. So worded, the statutory language contemplates future rather than retrospective applications.

It has long been our rule that the provisions of a statute will not be applied retroactively unless the intent of the Legislature to the contrary appears (Waddey v. Waddey, 290 N. Y. 251; Saltser & Weinsier v. McGoldrick, 295 N. Y. 499; Western N. Y. & Pa. Ry. Co. v. City of Buffalo, 296 N. Y. 93).

For these reasons I dissent and vote to affirm.

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

Upon reargument: Judgment reversed, with costs in all courts, and matter remitted to Special Term for further proceedings in accordance with the opinion herein.


source: Caselaw Access Project

author: Desmond, J.

license: Public Domain

text:
    Alfred L. Shapiro, Respondent, v. Health Insurance Plan of Greater New York et al., Appellants.
    Argued October 15, 1959;
    decided November 25, 1959.

      Mathias F. Correa, Corydon B. Dunham, Jr., and Gerald A. Fox for appellants.
    I. Plaintiff had' the burden of presenting evidentiary facts showing actual malice: (Lewis v. Chapman, 16 N. Y. 369; Ashcroft v. Hammond, 197 N. Y. 488.) II. Plaintiff has not shown facts constituting actual malice sufficient to raise a triable issue. (Hemmens v. Nelson, 138 N. Y. 517; Loewinthan v. Le Vine, 270 App. Div. 512; Ashcroft v. Hammond, 197 N. Y. 488.) III. The courts below ignored the affirmative evidence of lack of malice.

      Julius A. Itzkowits and Samuel Kolatch for respondent.
    I. Qualified privilege is a conditional defense which is destroyed by malice or excessive publication. Since the complaint alleges malice, summary judgment is not available to defendants in this action. Whether actual malice existed is an issue of fact to be determined by the jury. (Teichner v. Bellan, 7 A D 2d 247; Andrews v. Gardiner, 224 N. Y. 440; Garriga v. Townsend, 285 App. Div. 199; National Variety Artists v. Mosconi, 169 Misc. 982.) II. Plaintiff’s affidavit in opposition contains many facts to support an inference of actual malice and ill will on the part of defendants. (Pecue v. West, 233 N. Y. 316; Ashcroft v. Hammond, 197 N. Y. 488; Hamilton v. Eno, 81 N. Y. 116; Andrews v. Gardiner, 165 App. Div. 595; Loewinthan v. Beth David Hosp., 290 N. Y. 188; Klinck v. Colby, 46 N. Y. 427; Loewinthan v. Le Vine, 299 N. Y. 372.) III. Whether or not qualified privilege exists in the case at bar is a question of fact to be determined by the jury. (Moyle v. Franz, 267 App. Div. 423; Miodownick v. Fischman, 134 App. Div, 246; Walmsley v. Kopcsynski, 202 App. Div. 104.)
   Desmond, J.

This action for libel and slander was brought by a physician-surgeon against Health Insurance Corporation (HIP) and against Dr. Baehr, its president and medical director, and Dr. Daily who was the vice-president, deputy medical director and Medical Control Board chairman of HIP. HIP is a nonprofit membership corporation which sells medical expense indemnity insurance (see Insurance Law, art. IX-C) to some 500,000 insurees. The indemnified medical care is made available to the insured persons by 32 partnerships of physicians. Each partnership is called a Medical Group. An insured person chooses a particular Group for his medical care. Each Medical Group is an independent contractor with HIP and each has in its membership general practitioners and specialists, including surgeons. The contracts between the Medical Groups and HIP and between HIP and its insureds provide that medical services are to be rendered in accordance with accepted medical and surgical practices and in accordance with standards adopted by the Medical Control Board of HIP. That Control Board has 15 members. Two of them (defendants Baehr and Daily) were employees or officials of HIP, 5 represented the Medical Groups and 8 were prominent physicians from the community.

The several counts of the amended complaint set forth a number of alleged defamatory statements, some oral and some in writing, made by defendants on four dates in December, 1953 and January, 1954. Substantially all the alleged libels and slanders were made by defendants Dr. Baehr and Dr. Daily at HIP Medical Control Board hearings called to investigate plaintiff’s qualification to act as surgeon for his G-roup or were made in communications to Eastern Parkway Medical Group (plaintiff’s Group) notifying it of the Medical Control Board’s conclusion that plaintiff was not qualified and of the board’s decision rescinding its approval of plaintiff as a Group surgeon, or were made to Medical Group Council, an organization of various HIP Medical Groups. It is the theory of the suit that these statements defamed plaintiff by charging him with lack of competence as a surgeon, by stating that his hospital appointments or staff memberships had been cancelled or not renewed by reason of his incompetency, by asserting that he does not meet the minimal requirements for HIP for surgery and that he lacks adequate surgical training and skill, and by charging that plaintiff willfully withheld information from HIP and willfully made misrepresentations to HIP and concealed facts from HIP as to his hospital connections and as to his qualifications and experience.

Each cause of action in the amended complaint alleges that the particular statement therein set forth was made in bad faith, without justification, in disregard of plaintiff’s rights and with intent to injure plaintiff professionally, and that each libel or slander was motivated by actual malice. The answer admits that defendants Baehr and Daily, in making the statements, were acting within the scope of their authority and employment with HIP. Admitted also in the answer is the making of some, but not all, of the alleged defamatory statements. The answer then sets up as a first separate defense: that these statements, if made, were published, in the course of defendants’ duties, to persons who had an interest in the matter, in good faith and without malice, and so were privileged. The other separate defenses in the answer are to the effect that the statements complained of were true in fact or in substance or were based on trustworthy information believed by defendants to be true.

When the pleadings were complete, defendants moved on affidavits (Rules Civ. Prac., rule 113) for summary judgment on the ground that all the communications complained of were made because of defendants’ duties and obligations and so were privileged. Plaintiff, opposing the motion, conceded qualified or conditional privilege and both courts below held that the circumstances and relationships were such as to produce a qualified privilege provided that the publications had been made without actual malice. (Malice destroys a qualified privilege, Andrews v. Gardiner, 224 N. Y. 440, 446.)

Plaintiff, opposing summary judgment, served his own affidavit in which he charged defendants with malice and reckless disregard of his rights and interests. Summary judgment was denied. Both courts below concluded that plaintiff’s affidavit showed that there.was a triable issue of fact as to actual malice. The Appellate Division granted defendants leave to appeal to this court.

After a brief survey of the applicable law (not really in dispute) we will examine the opposing affidavits to sec whether plaintiff has, by evidentiary facts, verified his charge of actual malice, at least to the extent of showing that there is a real, triable issue as to such malice.

“ ‘ A communication made bona fide upon any subject matter in which the party communicating has an interest, or in reference to which he has a duty, is privileged if made to a person having a corresponding interest or duty, although it contained criminating matter which, without this privilege, would be slanderous and actionable; and this though the duty be not a legal one, but only a moral or social duty of imperfect obligation ’ ” (Byam v. Collins, 111 N. Y. 143, 150). “ The rule of law that permits such publications grew out of the desirability in the public interest of encouraging a full and fair statement by persons having a legal or moral duty to communicate their knowledge and information about a person in whom they have an interest to another who also has an interest in such person. Such privilege is known as a qualified privilege. It is qualified because it does not extend beyond such statements as the writer makes in the performance of such duty and in good faith believing them to be true ” (Bingham v. Gaynor, 203 N. Y. 27, 31). When defendant’s statements are presumptively privileged the rule is that, in order to render them actionable, it is “ incumbent on the plaintiff to prove that [they were] false and that the defendant was actuated by express malice or actual ill-will. While there are numerous cases in the books in which it is said that as to privileged communications the good faith of the defendant and the existence of actual malice are questions of fact for the jury, the expression must not be misunderstood. Those questions are for the jury only where there is evidence in the case warranting their submission to the jury, and the burden of proof is on the plaintiff” (Ashcroft v. Hammond, 197 N. Y. 488, 495-496; see Hemmens v. Nelson, 138 N. Y. 517, 529). Falsity is not sufficient for an inference of malice. “ ‘ It must be * # * consistent only with a desire to injure the plaintiff to justify * * * [sending] the question of malice to the jury ’ ’’ (Fowles v. Bowen, 30 N. Y. 20, 26; see Loewinthan v. Le Vine, 299 N. Y. 372, 375). “By actual malice is meant ‘ personal spite or ill will, or culpable recklessness or negligence’” (Hoeppner v. Dunkirk Print. Co., 254 N. Y. 95, 106).

For the background facts, we turn to defendants’ affidavits and exhibits. Although defendants do not have the burden of showing lack of malice, the documents themselves, consisting of actual minutes of hearings and meetings and attached to the opposing affidavits, go far toward negating malicious motivation. They show that in 1953 Drs. Baehr and Daily were informed that plaintiff’s malpractice liability insurance was about to be cancelled (or would not be renewed) by the insurer because of alleged fault. HIP’s Medical Group agreements required the carrying of such insurance by each member physician. Investigation by defendants showed that the malpractice liability insurer had made money settlements of malpractice suits arising from surgical operations performed by plaintiff. After HIP got this news, there followed conferences and hearings of the HIP Medical Control Board, at some of which plaintiff was present and at which there were discussed not only this malpractice insurance matter but also the alleged loss by plaintiff of his former hospital staff memberships, also an alleged opinion by the chief surgeon of one such hospital as to plaintiff’s incompetency as a surgeon, also an alleged misrepresentation by plaintiff about his status on other hospital staff or staffs. At these Control Board hearings there was presented information that the recommendation for nonrenewal of the malpractice insurance had come from a board or committee of the Medical Society of the State of New York. Other information received and disclosed was that plaintiff’s “ appointments ” in surgery at two Brooklyn hospitals had not been renewed, and that one of these failures to reappoint him had been' because of an opinion by the Chief of Surgery of that hospital that plaintiff lacked the ability to perform major surgery. Plaintiff admitted at the first hearing held by the HIP Medical Control Board that his malpractice insurance was threatened with nonrenewal because of the insurer’s substantial-amount settlements of two malpractice suits against plaintiff.

Plaintiff in effect admitted that two of his former hospital staff appointments had lapsed but insisted that no charge of his incompetency was involved. At the first hearing he said that he had two new hospital connections but later a doubt arose, from information received by defendants, as to whether these new associations really meant that plaintiff was an active member of the two new hospital staffs. At the hearings plaintiff pointed out that he had been approved some years before by HIP as a Group surgeon but the answer made to this was that defendants retained the power to review the qualifications of Group members, at any time.

At an executive session held after the first hearing, defendant Daily called to the Medical Control Board’s attention that the two malpractice cases, according to his information, revealed gross incompetency. - The Medical Control Board then temporarily withdrew its approval of plaintiff as a surgeon in his Medical Group.

At a later meeting of the Control Board, plaintiff offered a written analysis of some 1,800 major surgeries performed by him up to 1950 (three years before this hearing) which list was apparently disregarded by the board. He made various explanatory statements about the hospital staff matters. It appeared that one of his new hospital appointments was not to ‘ ‘ general surgery ” as he had previously asserted, but was limited to ‘ ‘ traumatic surgery ’ ’. There were other executive sessions of the Control Board at which statements were made by defendants Baehr and Daily and others that plaintiff lacked the necessary professional qualifications. The final result was that the board declared him not qualified and rescinded its 1950 approval. These minutes seem to show a careful and fair investigation of the whole matter. In themselves they seem to show that the motivation was not malice, but duty.

We now examine plaintiff’s answering affidavit in which he seeks to overcome all this by showing actual malice. In examining that affidavit we remind ourselves that there is a positive requirement that it must show evidentiary facts (O’Meara Co. v. National Park Bank, 239 N. Y. 386, 395) and that a motion for summary judgment may not be defeated by charges “ based upon surmise, conjecture and suspicion” (Bank for Savings v. Rellim Constr. Co., 285 N. Y. 708-709).

Plaintiff’s answering affidavit says that, as the head of his Medical Group, he had differed sharply and often with defendants Baehr and Daily and other HIP officials on matters of policy and that this had engendered the animosity of defendants and caused them to regard him as a troublemaker. Plaintiff avers that defendants resented this opposition and made derogatory statements about him — but no details as to such alleged statements are given. Plaintiff swears that this ill will and malice toward him brought about a conspiracy to defame him and to remove him as a Medical - Group surgeon. But here again there are no specifications of the where and when of the conspiracy or anything beyond plaintiff’s say-so. He alleges that the hearings were a mock trial only, called to effect a predetermined result. He complains of short notice of the hearings but admits that he was given a two-weelc adjournment to prepare his defense. He complains of the refusal of defendants, at the second hearing, to examine his 1,800 case histories of earlier surgeries but this refusal is not shown to have been malicious or arbitrary. He admits that defendants had received notice of the nonrenewal of his malpractice insurance but says that the man who gave that information (which was correct information) was himself moved by malice and ill will toward plaintiff because plaintiff had been trying to persuade plaintiff’s Medical Group to transfer its insurance to a different insurer.

Nowhere in plaintiff’s affidavit are there any evidentiary facts (as distinguished from mere conclusory allegations). Facts from which a jury could infer malice are not revealed. Defendants had a duty and a right to investigate and to communicate the results of their investigation to other similarly interested persons. Those communications were privileged unless made because of malice. It was for plaintiff to show that he had facts available to prove such malice. He produced none. Suspicion, surmise and accusation are not enough. The existence of earlier disputes between the parties is not evidence of malice (Hemmens v. Nelson, 138 N. Y. 517, 524, supra; Ashcroft v. Hammond, 197 N. Y. 488, 496, 498, supra).

The order appealed from should be reversed, the certified question answered in the negative and defendants’ motion for summary judgment dismissing the complaint granted, with costs in all courts.

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

Order reversed, with costs in all courts, and the case remitted to Special Term for further proceedings in accordance with the opinion herein. Question certified answered in the negative.


author: Fuld, J. Dye, J.

text:
    Izora S. Burmaster, Respondent, v. State of New York, Appellant.
    Argued October 21, 1959;
    decided December 30, 1959.

      Louis J. Lefkowits, Attorney-General (M. James Conboy and Edward L. Bookstein of counsel), for appellant.
    I. Respondent did not have the right or authority to allow his wife to ride in the State-owned automobile and the State is not liable for such illegal use. (Carroll v. City of Yonkers, 193 App. Div. 655; Aspinall v. City of New York, 221 App. Div. 753, 246 N. Y. 644; Fox v. City of Syracuse, 231 App. Div. 273, 258 N. Y. 550; Clark v. Harnischfeger Sales Corp., 238 App. Div. 493; Svenson v. Zakrocki, 268 App. Div. 777; Hukey v. Massachusetts Bonding & Ins. Co., 277 App. Div. 411, 302 N. Y. 949.) II. The State is not liable to claimant who was riding in the automobile contrary to and in violation of the orders and instructions given by the Conservation Department to her husband. (Psota v. Long Is. R. R. Co., 246 N. Y. 388; Arcara v. Moresse, 258 N. Y. 211; Krisa v. Socony-Vacuum Oil Co., 266 App. Div. 1016, 293 N. Y. 737; Rhodes v. Ocean Acc. & Guar. Corp., 239 App. Div. 92, 264 N. Y. 437; St. Andrassy v. Mooney, 262 N. Y. 368; Fisher v. New York Good Humor, 265 App. Div. 967, 290 N. Y. 921; Hartstein v. United States Trucking Corp., 260 App. Div. 643; Christie v. B. F. Vineburg, Inc., 259 App. Div. 342; Berry v. Employers’ Liab. Assur. Corp., 254 App. Div. 424; Clark v. Harnischfeger Sales Corp., 238 App. Div. 493.) III. Respondent was an interested witness and his credibility and the weight to be given to his testimony was exclusively for the trial court. (Fuchs v. London Lancashire Ind. Co., 258 App. Div. 603; Hull v. Littauer, 162 N. Y. 569; Tyrell v. State of New York, 6 A D 2d 958; Punsky v. City of New York, 129 App. Div. 558; Piwowarski v. Cornwell, 273 N. Y. 226; Goes v. Gifford Sales & Serv., 265 App. Div. 796; Christie v. B. F. Vineburg, Inc., 259 App. Div. 342; Mercatante v. City of New York, 286 App. Div. 265; Boyd v. Boyd, 252 N. Y. 422.) IV. The Appellate Division misapprehended the basis on which the Court of Claims dismissed the claim. The question whether claimant was lawfully riding in the State’s automobile was one of fact which the Court of Claims properly resolved against her. (Elterman v. Hyman, 192 N. Y. 113; Rhodes v. Ocean Acc. & Guar. Corp., 239 App. Div. 92, 264 N. Y. 437.)

      John T. De Graff, Harold Soden and Carroll J. Mealey for respondent.
    I. Claimant was lawfully riding in the State-owned automobile operated by her husband on State business. II. The memorandum did not prohibit the claimant’s presence in the automobile under the circumstances shown in the record. (Callahan v. State of New York, 201 Misc. 378; Rolfe v. Hewitt, 227 N. Y. 486; Goldberg v. Borden’s Condensed Milk Co., 227 N. Y. 465; Plaumbo v. Ryan, 213 App. Div. 517; Psota v. Long. Is. R. R. Co., 246 N. Y. 388; Hukey v. Massachusetts Bonding & Ins. Co., 277 App. Div. 411; St. Andrassy v. Mooney, 262 N. Y. 368; Christie v. B. F. Vineburg, Inc., 259 App. Div. 342; Lamica v. Vollmer, 296 N. Y. 660.) III. The judgment of the Court of Claims was grounded upon two basic errors which were properly corrected by the Appellate Division. IV. Claimant was not required to prove that the State had knowledge of her presence in the car. (Winnowski v. Polito, 294 N. Y. 159; Orlando v. Pioneer Barber Towel Supply Co., 239 N. Y. 342; Adams v. State of New York, 296 N. Y. 654; Roche v. New York Cent. R. R. Co., 221 App. Div. 497; Amann v. Thurston, 133 Misc. 293, 224 App. Div. 874; Eckert v. Farrington Co., 262 App. Div. 9, 287 N. Y. 714.) V. There was no basis in law or in fact for the determination of the Court of Claims that respondent was operating the State car “ without the permission of the owner”. (Houlihan v. Selengut, 175 Misc. 854; Arcara v. Moresse, 258 N. Y. 211.)
   Fuld, J.

In April of 1950, after receiving a letter from the Director of the Conservation Department, the Superintendent of the Law Enforcement Bureau sent a memorandum to the District Game Protectors under his supervision. Insofar as relevant, the communication called upon its recipients, among whom was Bay Burmaster, to discontinue “ carrying members of their family to or from their respective places of business and for other purposes not strictly in line with the performance of their official duties.” However, the memorandum went on to say, there was no disposition to prohibit the Game Protectors from having others with them if “in one way or another ’ ’ their presence tied in “ with the work to be performed ”.

On May 6, 1955, five years after this directive was issued, Mrs. Izora Burmaster was injured when the automobile, owned by the State and operated by her husband, Ray, collided with a truck. She brought suit in the Court of Claims against the State, alleging that her husband’s negligent driving was responsible for the accident. The claim was dismissed; although the court found that Burmaster was negligent and the complainant free from contributory negligence, it concluded, in effect, that the presumption of section 59 of the Vehicle and Traffic Law was rebutted by virtue of the fact that the State had forbidden its employee Burmaster to transport ” his wife as a passenger in the State-owned vehicle. The Appellate Division took a different view; it unanimously reversed the trial court’s judgment on the law and facts, made new findings and awarded the claimant $15,000. More specifically, the Appellate Division found that the claimant’s presence in the car on the day of the accident was “ directly connected with and aided her husband’s use of the car on State business ” and that the directive relied upon by the State “ did not prohibit the presence of the claimant ” in the car.

Upon this appeal, brought as of right, we are required simply to determine whether the weight of evidence supports the findings and determination of the Court of Claims or those of the Appellate Division — and that, in turn, depends upon the meaning of the April, 1950 memorandum as well as upon the facts surrounding the claimant’s presence in the car on the day of the accident.

It is the State’s contention that Mr. Burmaster was prohibited from taking his wife with him on any trip whether devoted to the business of the State or to their own personal pleasure. The claimant, on the other hand, urges that the directive was plainly qualified and expressly allowed the employee to have his wife with him if he was on State business and her presence ‘ ‘ tied in ’ ’ with such business; and, as to that, says the claimant, her presence in the car on the morning in question was sanctioned not alone by the spirit but by the letter of the directive.

Mr. Burmaster, 69 years old at the time of the accident, testified that he had been employed for over 30 years by the New York State Conservation Department as a District Q-ame Protector for the Saranac Lake Division and that the automobile, involved in the accident, had been assigned to him for his nse as Game Protector. He left Saranac Lake, he declared, at 6:30 o’clock in the morning of the day of the accident en route to Massena, some 65 miles away, concededly on State business and that, since he was starting on a long ride, was not feeling too spry and was ‘ afraid ’ ’ that he ‘ ‘ might get tired ’ ’, he had asked his wife to accompany him so that she might relieve him at the wheel if it became necessary.

For a man of Burmaster’s age about to start on a 130-mile trip, this was not an unreasonable precaution. Common sense and prudence suggested that he request his wife, or some other member of the family, to go along with him, and nothing in the directive rendered this course improper. Obviously, Mr. Bur-master was not using the automobile, to cull from that memorandum, to carry members of [his] family to and from their respective places of business or for other purposes not strictly in line with the performance of [his] official duties.” On the contrary, Mrs. Burmaster was with her husband to assist him, if necessary, in the operation of the automobile, so that she was in reality a person, to cull again from the memorandum, who did tie in in one way or another with the work to be performed which involves the use of the car.” (See Lamica v. Vollmer, 270 App. Div. 1063, affd. 296 N. Y. 660.)

We digress simply to call attention to the fact that we are not called upon to consider the case of injury to a passenger driving with a State employee, who has full-time possession of the car, if the car was being driven and used solely for pleasure. What our decision might there be must await the presentation of such a case. (See Hukey v. Massachusetts Bonding & Ins. Co., 277 App. Div. 411.) It is enough merely to note here that, where the car is being used on State business and the passenger is present to assist in the performance of such business, the State may not avoid liability if the negligence of its driver employee proves responsible for the accident and the injury. Certainly, nothing in section 59 of the Vehicle and Traffic Law requires a different result. That provision imposes liability upon the owner of an automobile for its negligent operation by one using it with the owner’s consent, express or implied. Indeed, once ownership is shown, a presumption arises that the car was being driven with the owner’s consent (see Winnowski v. Polito, 294 N. Y. 159, 161; Orlando v. Pioneer Barber Towel Supply Co., 239 N. Y. 342), and it matters not that the owner of the vehicle may be the State. (See Adams v. State of New York, 296 N. Y. 654.)

The owner may, of course, restrict the use of the car when in the hands of another (see Hinchey v. Sellers, 7 N Y 2d 287, also decided today; Arcara v. Moresse, 258 N. Y. 211), and an order by the owner that no passengers are to be carried would seem a valid restriction which, if violated, would mean that the vehicle was being driven without' the owner’s permission. But, as already shown, the directive issued in 1950 did not prevent Mr. Burmaster from having his wife accompany him on official business in order to assist him in the driving of the car if such a course became necessary.

In sum, then, since the weight of evidence clearly supports the findings and conclusions of the Appellate Division, rather than those of the Court of Claims, the judgment appealed from should be affirmed, with costs.

Dye, J.

(dissenting). I dissent and vote to reverse and to reinstate the trial court’s judgment of dismissal on the ground that the preponderance of the credible evidence supports the facts as found in the Court of Claims. All the proof on the issue of permission to use the State-owned automobile on the occasion in question indisputably establishes that it was being used for private purposes which the driver knew were contrary to the departmental memorandum governing the use of State-owned automobiles. Furthermore, there is no proof that the State had knowledge — actual or implied — that the plaintiff was riding as a passenger in the State car, nor is there any showing that at the time the plaintiff’s presence in the State-owned automobile had any connection with or relation to any State purpose whatsoever. Under such circumstances, the negligence of the driver may not be imputed to the State as owner.

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

Judgment affirmed.

      . The trial court had placed its dismissal in large part on a finding that the State had no knowledge, actual or implied, that claimant was riding in the car; quite obviously, the presumption created by section 50 comes into play and renders proof of actual knowledge unnecessary.


author: Fuld, J.

text:
    Walter Michalowski, Appellant-Respondent, v. Frederick J. Ey, Office of Property Custodian, Nassau County Police Department, Respondent-Appellant.
    Argued November 18, 1959;
    decided December 30, 1959.

      Clinton P. Sheehy for appellant-respondent.
    I. The complaint was sufficient to sustain the judgment. (Gumb v. Twenty-Third St. Ry. Co., 114 N. Y. 411.) II. The proper measure of damages was applied. (Crocker-Wheeler Co. v. Genesee Recreation Co., 101 Misc. 440; Flamm v. Noble, 296 N. Y. 262; Allen v. Fox, 51 N. Y. 562; Wilson v. City of Troy, 135 N. Y. 96.) III. Notice of claim was not a prerequisite to this action. (Kosiba v. City of Syracuse, 260 App. Div. 557; Miller v. City of Albany, 158 Misc. 720; O’Hara v. Sears Roebuck & Co., 286 App. Div. 104; O’Neil v. Foley, 6 A D 2d 739.)

      G. Burchard Smith, County Attorney (Harold E. Collins of counsel), for respondent-appellant.
    I. The complaint fails to allege damages for detention and thus is insufficient in law in this respect. (Allen v. Fox, 51 N. Y. 562; Coastal Equip. Co. v. Herrick, 243 App. Div. 97; Lonsdale v. Speyer, 249 App. Div. 133; Jones v. Van Heusen Charles Co., 230 App. Div. 694; Ketcham v. Wilbur, 218 App. Div. 350; Greenberger v. North Side Stor. Warehouse Co., 170 App. Div. 887; Hollenbeck v. Greene, 120 App. Div. 671; Dill v. County of Westchester, 5 Misc 2d 869; Matter of Evans v. Berry, 262 N. Y. 61.) II. Casual depreciation in value could be the only measure of damage in this case. (Allen v. Fox, 51 N. Y. 562; Redmond v. American Mfg. Co., 121 N. Y. 415; Brewster v. Silliman, 38 N. Y. 423; Spear v. Auto Dealers Discount Corp., 154 Misc. 801; Colonial Motor Coach Corp. v. New York Cent. R. R. Co., 131 Misc. 891.) III. Assuming a sufficient complaint, depreciation could only be measured from time of commencement of action. IV. Plaintiff is limited to recovery of $4,000 in any event.
   Fuld, J.

The plaintiff Michalowsld instituted this action some years ago in order to procure the return of an automobile and damages for its wrongful detention. The case was previously here in 1958, on which occasion we reversed the Appellate Division’s dismissal of the complaint and stated that “ the plaintiff is entitled to recover both possession of the car and damages for its wrongful detention ” (4 N Y 2d 277, 282). Accordingly, we remitted the case to the trial court for “ the assessment of damages ”.

The damages have now been assessed; the trial court fixed them at $6,253.34, but the Appellate Division reduced them to $4,000 on the ground that, since this was the amount demanded in the complaint, the recovery could not exceed such sum. An appeal has been taken to this court by each party.

We may be brief, for the facts fully appear in our earlier opinion (4 N Y 2d, at pp. 279-281). In 1948, the plaintiff purchased a Cadillac automobile from his friend, James Gallo. Shortly thereafter, the police, finding Michalowski in possession of the car, ‘ ‘ impounded ’ ’ it, telling him that they ‘ believed the car was stolen ’ ’ and that Gallo was ‘ ‘ wanted for parole violation ”. The plaintiff subsequently produced a “ certificate of title” executed by Gallo and a New York registration certificate, but the police still refused to return the car. He commenced this suit some five years later, in 1953, and it was another two years before he brought it to trial, the delay between the taking of the car and the trial being in large part attributable to his own incarceration in prison.

On the previous appeal, we found that the plaintiff was entitled to possession of the car and we remitted for an assessment of damages. Upon such remission, the parties stipulated that the value of the car at the time of taking was $4,000 and that its value at the time of the assessment of damages was $200; no other evidence as to proof of damages was offered or taken. After a hearing, the court found that the plaintiff was entitled to recover interest on the $4,000 value of his property from the time of taking to the time of the trial, amounting to $2,453.34, as well as the depreciation of his property, amounting to $3,800, a total of $6,253.34. Although, as intimated above, the Appellate Division decided that the trial court had applied the proper rule of damages, it modified the judgment by reducing it to the $4,000 demanded in the complaint, noting that, absent a motion to amend the complaint, the recovery should be limited to that amount. Both parties are appealing, the plaintiff claiming that he is entitled to reinstatement of the damages awarded at Trial Term, the defendant contending that no damages whatsoever should be allowed.

When the case was previously before us, we decided that the plaintiff was entitled to damages for the wrongful detention of his car. Such is the law as we announced it and nothing has occurred to warrant any change or modification. Accordingly, we turn to the other questions posed, namely, the measure of damages to be applied and the ability of the plaintiff to recover damages in excess of the amount demanded in his complaint.

The law relating to the measure of damages for wrongful detention in replevin was set forth with great clarity in Allen v. Fox (51 N. Y. 562), a .case upon which we relied on the previous appeal (4 N Y 2d, at p. 281). In the Allen case, after pointing out that the aim of the law in replevin, as in all other tort actions, “is to give the injured party a full indemnity and no more ” (51 N. Y., at p. 563), the court went on to apply this general principle to three fact situations which, might arise: (1) if the article was “ merchandise kept for sale, grain and all other articles of property useful only for sale or consumption, * * * interest on the value from the time of the wrongful taking would be a proper measure ” (p. 565); (2) if the article was “merchandise kept for sale”, but had “depreciated in value * * *, the depreciation must be added to the interest on the value, taken as it was before the depreciation, and the two items will furnish the amount of the damage ” (p. 565); and, (3) if the property claimed “ had a value for use, or, in other words, a usable value, such as horses, cows, carriages and boats * * *, the direct damage which the owner suffers is the loss of the use, and the value of the use should be the measure of damage ” (pp. 565-566).

In the case before us, the automobile was held by Michalowski for use and not for sale and, therefore, the correct rule of dam- - ages should have been the value of the use lost by reason of the wrongful detention. However, in the trial upon the assessment of damages, neither of the parties offered any evidence as to the value of the use lost, stipulating instead as to the value of the car at the time both of the taking and of the trial. This being so, the parties must be deemed to have abandoned the applicable rule and agreed, in effect, to employ that rule of damages in replevin which ordinarily governs property held for sale.

As to property held for sale, the Allen case establishes, the measure of damages will depend on whether or not the property had depreciated in value during the period of its wrongful detention. If the property depreciated in value, as the automobile in this case did, the plaintiff is entitled not only to such depreciation, but to the “interest on the [auto’s] value, taken as it was before the depreciation ” as well (51 N. Y., at p. 565; see Wells, Law of Replevin [2d ed., 1907], p. 493; Cob-bey, Law of Replevin [2d ed., 1900], p. 469). This was the very rule applied by the trial court and approved by the Appellate Division.

In support of his contention that damages, if allowed, must be limited to the depreciation, the defendant argues that “It cannot be both loss of use and depreciation; it must be one or the other ”. The short answer to this is that the plaintiff has been allowed not loss of use and depreciation but depreciation and interest on the value. If, as already indicated, we must treat the car as having been held by the plaintiff for sale, depreciation alone will not make the plaintiff whole because he could theoretically have sold the car at any time and then he would have had its value and whatever he could have earned on that value. Interest on the value represents the lost possibility of earnings, while depreciation represents lost value. Both are necessary if the plaintiff is to be indemnified and made whole.

As to the plaintiff’s point that he has a right to recover more than the amount demanded in his complaint, it is sufficient to observe that the law is settled that one may not recover a money judgment in a sum greater than that requested in his prayer for relief. (See Corning v. Corning, 6 N. Y. 97, 105; Barbato v. Vollmer, 273 App. Div. 169, 172; Roe v. City of Middletown, 262 App. Div. 231, 232; Branower v. Independent Match Co., 83 App. Div. 370, 375.) Since that was $4,000, it sets a limit on the recovery. The plaintiff’s reliance on section 479 of the Civil Practice Act is misplaced, as both a reading of the section and the cases decided under it make evident. (See, e.g., Rogers v. New York & Texas Land Co., 134 N. Y. 197, 219; Arnold v. Angell, 62 N. Y. 508, 511-512; Nelson v. Schrank, 273 App. Div. 72, 73; Cody v. First Nat. Bank, 63 App. Div. 199, 202-203.)

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

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

Judgment affirmed.


author:
      Per Curiam.
     Fuld, J.

text:
    The People of the State of New York, Respondent, v. James Peck, Ralph Di Gia, George Willoughby, Hollis Wyman, Jr., Tom Rick, Robert Gilmore, Marcus Cohen, Dale Brothington, Albert Uhrie, Patricia Daw and Elizabeth Quigley, Appellants. The People of the State of New York, Respondent, v. Abraham J. Muste, Kent Larrabee, Eileen Fantino, Ralph Di Gia, Henry J. Maiden, Bayard Rustin, Helen Russell, Mary Ann McCoy, Edith Horwitz, Patricia Rusk, James Peck, Robert Fisher, Hugh Corbin, Jackson Maclow, Dale Brothington, Andrew Osgood, Michael Kovalak and Henry Babcock, Appellants.
    Argued October 22, 1959;
    decided December 30, 1959.

      Kenneth W. Greenawalt and Harrop Freeman for appellants.
    I. No clear or present danger existed, in fact, in the situations involved here. The drills or exercises of June 15, 1955 and July 20, 1956 were in respect of a purely hypothetical and theoretical bomb attack, and not in respect of any real, actual, imminent or threatened bomb attack or danger. (Lee v. Madigan, 358 U. S. 228.) II. In the situations involved here there was, in law, no clear and present danger which justified the abridgement or denial of appellants’ constitutional freedoms of religion, speech, press, peaceable assembly and petition. (Schenck v. United States, 249 U. S. 47; Whitney v. California, 274 U. S. 357; Board of Educ. v. Barnette, 319 U. S. 624; Thomas v. Collins, 323 U. S. 516; Bridges v. California, 314 U. S. 252; Dennis v. United States, 341 U. S. 494; Hirabayashi v. United States, 320 U. S. 81; Duncan v. Kahanamoku, 327 U. S. 304.) III. The New York State Emergency Defense Act and the alleged orders thereunder, in whole or in part, inherently and as construed and applied below against appellants, are in violation of the First and Fourteenth Amendments of the United States Constitution and of sections 1, 3, 8, 9 and 11 of article I of the New York State Constitution. (De Jonge v. Oregon, 299 U. S. 353; Schneider v. State, 308 U. S. 147; Cantwell v. Connecticut, 310 U. S. 296; Jamison v. Texas, 318 U. S. 413; Murdock v. Pennsylvania, 319 U. S. 105; Board of Educ. v. Barnette, 319 U. S. 624; Martin v. Struthers, 319 U. S. 141; Taylor v. Mississippi, 319 U. S. 583; Douglas v. Jeannette, 319 U. S. 157; Prince v. Massachusetts, 321 U. S. 158; Follett v.
      McCormick, 321 U. S. 573; Thomas v. Collins, 323 U. S. 516.) IV. The said act and the alleged orders, in themselves and as construed and applied below, abridged and prohibited appellants’ freedoms of religion and conscience and their free exercise thereof. (United States v. Ballard, 322 U. S. 78; Cantwell v. Connecticut, 310 U. S. 296; Fowler v. Rhode Island, 345 U. S. 67; Taylor v. Mississippi, 319 U. S. 583.) V. The said act and alleged orders, in themselves and as construed and applied below, abridged the rights of defendants peaceably to assemble and to petition. (De Jonge v. Oregon, 299 U. S. 353; Hague v. C.I.O., 307 U. S. 496.) VI. The said act and alleged orders, in themselves and as construed and applied below, abridged or denied appellants’ liberties of speech and press. (Murdock v. Pennsylvania, 319 U. S. 105; Martin v. Struthers, 319 U. S. 141; Lovell v. Griffin, 303 U. S. 444; Le Baron v. Kern County Farm Labor Union, 80 F. Supp. 151; Terminiello v. Chicago, 337 U. S. 1.) VII. The said act and alleged orders, in themselves and as construed and applied below, denied to appellants the equal protection of the laws and abridged their privileges and immunities. VIII. Appellants were entitled to be considered “ exempt persons ” within subdivision 1 of section 100 of the New York State Defense Emergency Act. Failure to include appellants within that exemption was discriminatory and denied them equal protection of the law as well as their freedoms of religion and conscience. (Winters v. New York, 333 U. S. 507; Fowler v. Rhode Island, 345 U. S. 67.) IX. The New York State Defense Emergency Act, insofar as it provides for, and also insofar as it has been construed to permit, infringement of the liberties of the people, including the freedoms of speech, press, religion, petition and assembly, is unconstitutional under Federal and State Constitutions. X. The evidence failed to establish that appellants violated and disobeyed any duly promulgated regulation or' order or any official order by a person duly authorized, as alleged. XI. Appellants were not trespassing on private property and were not engaged in practices which were immoral or inconsistent with public health, peace and safety. (Watchtower, Bible & Tract Soc. v. Metropolitan Life Ins. Co., 297 N. Y. 339, 335 U. S. 886; People v. Thorpe, 198 Misc. 462; People v. Bohnke, 287 N. Y. 154, 316 U. S. 667; Reynolds v. United States, 98 U. S. 145.) XII. The City Magistrates’ Courts, which did not sit herein as a Court of Special Sessions, did not have jurisdiction to hear and determine the charges against appellants. Section 102 of the New York State Defense Emergency Act, in itself and as construed and applied below, violates the New York State Constitution and the Fourteenth Amendment of the United States Constitution in providing that Magistrates’ Courts in the City of New York, in the first instance, shall have exclusive jurisdiction to hear and determine charges of violations constituting misdemeanors, such as the charges herein. (People v. Pray, 87 Misc. 464; People ex rel. Comaford v. Dutcher, 83 N. Y. 240; People v. Seidman, 266 App. Div. 793; People v. Citarelli, 247 App. Div. 53; People v. Schacher, 181 Misc. 769; Matter of Mosner v. Haddock, 181 Misc. 486; People v. Pershaec, 172 Misc. 324.)

      Frank S. Hogan, District Attorney (Peter Preiser and Richard G. Denser of counsel), for respondent.
    I. Appellants’ guilt was proved beyond a reasonable doubt. II. The New York State Defense Emergency Act is a valid exercise of legislative powers and its particular application to these appellants was not unconstitutional. (United States v. Constantine, 296 U. S. 287; United States v. Macintosh, 283 U. S. 605; Richter v. United States, 181 F. 2d 591, 340 U. S. 892; Ludecke v. Watkins, 335 U. S. 160; Hirabayashi v. United States, 320 U. S. 81; Matter of Viemeister, 179 N. Y. 235; People ex rel. Nechamcus v. Warden of City Prison, 144 N. Y. 529.) III. Appellants’ constitutional rights were not violated. (United States v. Schwimmer, 279 U. S. 644; Atherton v. United States, 176 F. 2d 835, 338 U. S. 938; Rase v. United States, 129 F. 2d 204; Hamilton v. Regents, 293 U. S. 245; United States v. Miller, 233 F. 2d 171; Poulos v. New Hampshire, 345 U. S. 395; Prince v. Massachusetts, 321 U. S. 158; Cox v. New Hampshire, 312 U. S. 569.) IV. Appellants were not engaged in an exempt activity, and failure to exempt them did not violate their rights. (Selective Draft Law Cases, 245 U. S. 366.) V. The City Magistrates’ Court had exclusive jurisdiction to hear and determine the misdemeanor charges herein involved. (People ex rel. Sinkler v. Terry, 108 N. Y. 1; People ex rel. Townsend v. Porter, 90 N. Y. 68; Landers v. Staten Is. R. R. Co., 53 N. Y. 450; Haggerty v. City of New York, 267 N. Y. 252; People ex rel. Comaford v. Dutcher, 83 N. Y. 240; People v. Pray, 87 Misc. 464; People v.
      Seidman, 266 App. Div. 793; People v. Aptaker, 19 Misc 2d 602; People v. Citarelli, 247 App. Div. 53; People v. Pershaec, 172 Misc. 324.)
   Per Curiam.

We agree that it was not unconstitutional for the Legislature in section 102 of the State Defense Emergency Act (L. 1951, ch. 784, as amd.) to give jurisdiction over these misdemeanors to Magistrates’ Courts in New York City (N. Y. Const., art. VI, § 18).

Appellants may constitutionally be compelled to take shelter during an air raid drill, a purely defensive measure within the class of nonaggressive activities recognized in Girouard v. United States (328 U. S. 61). Nor do we accept appellants’ position that they were coerced into war preparation against their religious scruples. This was merely training in how to take shelter in the event of an air raid, in the nature of a lifeboat drill at sea or a fire drill in a school.

In each case, the judgment of the Appellate Part of the Court of Special Sessions of New York City should be affirmed.

Fuld, J.

(dissenting). I cannot accept the view of the majority that the Legislature has the constitutional power to vest the Magistrates’ Courts of the City of New York with jurisdiction to try misdemeanors.

Section 18 of article VT of our Constitution reads:

“ Courts of special sessions and inferior local courts of similar character shall have such jurisdiction of offenses of the. grade of misdemeanors as may be prescribed by law, and the legislature may authorize them to try such offenses without a jury.” (Emphasis supplied.)

The italicized words were added in 1925. I have always thought that their purpose was simply to make it clear that section 18 covers not only courts of special sessions, so denominated, but the equivalent of such courts, though not so denominated, which function outside New York City — namely, city courts, village courts and, perhaps, others. In other words, the phrase “ inferior local courts of similar character ” means inferior local courts of similar or equivalent jurisdiction.

Had section 18 of the Constitution been intended to apply to magistrates ’ courts, it would have simply read ‘1 Courts of special sessions and other inferior local courts ” — eliminating the significant expression of similar character As the section now reads, however, the Legislature is without power to vest magistrates’ courts with jurisdiction to try misdemeanors since these courts are ‘1 inferior local courts ’ ’, but not ‘ ‘ inferior local courts of a similar character ” to courts of special sessions.

In point of fact, prior to the enactment of the Defense Emergency Act (L. 1951, ch. 784, as amd.) whose constitutionality is before us for the first time on this appeal, the Legislature never attempted to empower magistrates’ courts in New York City to try misdemeanors. Indeed, it is expressly provided by statute that in New York City the court of special sessions 11 shall have * * * exclusive jurisdiction to hear and determine all charges of misdemeanors committed within the city of New York ” (N. Y. City Crim. Cts. Act, § 31). And the courts which have given thought to the subject have consistently declared that magistrates’ courts neither had the power nor could be given the power to try such misdemeanors. (See People v. Citarelli, 247 App. Div. 53, 55; People v. Aptaker, 19 Misc 2d 602; People v. Pershaec, 172 Misc. 324; People v. Pray, 87 Misc. 464, 467-468.)

Furthermore, it should be noted that, when in 1915 the Legislature desired to empower a magistrate to try certain misdemeanors, it did not vest the magistrate with power to try them, but, instead, explicitly provided that the magistrate had to sit as, and hold, a court of special sessions and, in addition, that the defendant had to give his consent to such a trial (N. Y. City Crim. Cts. Act, §§ 130, 131). And, if he did not give his consent, the statute provided, then, the misdemeanor had to be tried by the justices comprising the court of special sessions. So strong did this court deem the requirement of consent that it decided that a defendant, having consented to a trial by a court of special sessions to be held by a particular magistrate, could not, without the defendant’s further consent, be tried by any other magistrate. (See, e.g., People v. Geltman, 293 N. Y. 715, affg. 267 App. Div. 83.)

If the Legislature had the competency to grant magistrates the power to sit as such and to hear and determine charges of misdemeanors, there would have been no need for the elaborate procedure set up in the New York City Criminal Courts Act. Moreover, and this, of course, is an important consideration, if we hold that the Legislature is under no constitutional inhibition, that body will then be able simply to provide that a New York City magistrate may try any misdemeanor without the defendant’s consent and over his objection and protest. This may mean a more speedy disposition of cases, but that cannot decide the constitutional question presented. If a defendant charged with a misdemeanor does have a right to be tried in New York City by a court of special sessions, composed of three judges, it is impossible to justify a trial by a single magistrate over the defendant’s objection. The provision, carefully written into the New York City Criminal Courts Act, requiring the defendant’s consent was “considered necessary to avoid the serious constitutional objections which might otherwise have existed to the trial by a Magistrate’s Court of offenses of the gradé of misdemeanor.” (People v. Citarelli, 247 App. Div. 53, 55, supra; see, also, People v. Aptaker, 19 Misc 2d 602, 604, supra; People v. Pershaec, 172 Misc. 324, supra; People v. Pray, 87 Misc. 464, 467-468, supra.)

In sum, then, a defendant charged with a misdemeanor is entitled to a trial in a court of special sessions — which in New York City is a court consisting of three justices or, in certain specified cases, of one judge only if the defendant consents thereto — and a statute which takes from him his right to a trial by such a three-man court deprives him of something truly substantial and contravenes .the constitutional provision discussed (N. Y. Const., art. VI, § 18). Consequently, the Defense Emergency Act, insofar as it empowers magistrates’ courts in New York City to try violations constituting misdemeanors, is invalid, and it follows that the magistrate who convicted the defendants before us lacked the power to try the charges.

In the view which I have thus taken, I do not reach the question— in my opinion, a close and difficult one- — whether the Defense Emergency Act, as applied in this case to these defendants, violates provisions of the Federal and State Constitutions (U. S. Const., 1st and 14th Arndts.; N. Y. Const., art. I, §§ 3, 8, 9).

The judgments appealed from should be reversed and the cases remanded to the Magistrates’ Court for further proceedings.

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

In each case: Judgment affirmed.


text:
    The People of the State of New York, Respondent, v. Benjamin Englese, True Name Benjamin Dominick Englese, Appellant.
    Argued October 20, 1959;
    decided December 30, 1959.

      Michael I. Winter for appellant.
    I. The indictment at bar, as conceded by respondent, fails to charge appellant with the commission of a felony. (People ex rel. Newman v. Foster, 297 N. Y. 27; People ex rel. Sloane v. Lawes, 255 N. Y. 112;
      People v. Bellucci, 136 Misc. 174; People v. Russo, 278 App. Div. 98, 303 N. Y. 673.) II. The doubt, uncertainty, and confusion, apparent at the time appellant’s guilty plea was accepted, presented abundant justification for the granting of appellant’s prayer for leave to withdraw the plea of guilty heretofore and on January 12, 1953 by him interposed. The denial of leave to withdraw such plea, under the circumstances disclosed, was an abuse of discretion. (People v. Rosenkrantz, 123 Misc. 335; People v. Dolac, 3 A D 2d 351, 3 N Y 2d 945; People v. Gowasky, 244 N. Y. 451; People v. Longe, 269 App. Div. 474; People v. Pravda, 194 Misc. 726; People v. Bradshaw, 164 Misc. 565; People v. Barnes, 285 App. Div. 1067; People v. Rumsey, 3 A D 2d 860; People v. O’Neill, 7 A D 2d 997; People v. Daiboch, 265 N. Y. 125.) III. The indictment at bar not only does not lawfully accuse appellant of a felony, as above indicated and as respondent concedes, it is also legally insufficient to charge appellant with having committed a misdemeanor and, as a consequence, the court was without power to impose sentence. (People v. Dumar, 106 N. Y. 502; People v. Foster, 60 Misc. 3; People v. Cusick, 167 Misc. 465; People v. McGuire, 5 N Y 2d 523; People v. Tremaine, 129 Misc. 650; People v. Quartararo, 76 Misc. 55; People v. Linden Farms Milk & Cream Co., 244 App. Div. 830; People v. Armlin, 7 A D 2d 942; People v. Scott, 3 N Y 2d 148.) IV. The determination made on appellant’s motion in the County Court of Queens County that appellant be resentenced for a misdemeanor is, in effect, an amendment of the indictment at bar by the court. The County Court of Queens County was without power to amend the indictment here filed in the manner in which such amendment was here made. The sentence imposed on appellant on October 1, 1958 was contrary to the letter and spirit of the order of August 30, 1958, which directs appellant’s resentence for a misdemeanor. (People v. Geyer, 196 N. Y. 364; People ex rel. Wachowicz v. Martin, 293 N. Y. 361; People v. Bloom, 263 App. Div. 821; People v. Hooter, 282 App. Div. 398; People v. Ercole, 308 N. Y. 425, 308 N. Y. 1007; People v. Oliver, 3 N Y 2d 684; People v. Kuehn, 5 A D 2d 516.)

      Frank D. O’Connor, District Attorney (Morton Greenspan and Benj. J. Jacobson of counsel), for respondent.
    I. Since the indictment is sufficient under section 284 of the Code of Criminal Procedure, the error or defect on the face of said indictment does not render said indictment a nullity. An error in the name of the crime in the accusatory part of the indictment is not a fatal defect. (People v. Seeley, 105 App. Div. 149; People v. Peckens, 153 N. Y. 576; People v. Miller, 143 App. Div. 251, 202 N. Y. 618; People v. Gaydica, 122 Misc. 31; People v. Williams, 243 N. Y. 162; People v. Portner, 278 App. Div. 787.) II. Denial of defendant-appellant’s application to withdraw his plea of guilty was not an abuse of discretion. No substantial right of defendant-appellant was impaired by said denial. (People v. Gillespie, 185 Misc. 841.)
   Desmond, J.

In July, 1958 defendant made a motion in County Court, Queens County, to vacate his 1953 conviction in that court on the ground (now just about conceded to be correct) that in 1953 he had been convicted of a felony on an indictment which alleged facts which could constitute no more than a misdemeanor. The County Court, while it vacated that 1953 judgment, denied the other part of defendant’s application wherein he asked permission to withdraw his plea of guilty on which plea he had been convicted in 1953. In other words, defendant in 1958 moved to vacate the 1953 conviction and to withdraw his plea of guilty entered at that earlier time but the County Court, while vacating the earlier judgment, refused to permit the withdrawal of the plea, considered the indictment as properly alleging a misdemeanor instead of a felony, ordered that defendant’s earlier plea of guilty to the felony stand as a plea of guilty to the misdemeanor, and resentenced defendant nunc pro tunc, for the misdemeanor, to an indeterminate sentence in the New York Penitentiary in place of the 5- to 10-year prison sentence imposed on defendant in 1953 for the supposed felony.

The indictment filed against defendant and another person in 1952 and to which defendant pleaded guilty in 1953 read in full as follows:

“ THE GRAND JURY OF THE COUNTY OF QUEENS, by this indictment, accuse the defendants of the crime of CARRYING A DANGEROUS WEAPON, as a Felony Offense, committed as follows: The defendants, acting in concert, on or about February 9th, 1952, in the County of Queens, being then over the age of sixteen years, had a pistol loaded with ammunition at the time, without a valid, written license therefor, in an automobile.” The indictment was defective, as we shall point out later, in labeling as a felony detailed facts which under the statute could constitute no more than a misdemeanor. Defendant argues that it was not only defective but a nullity and that, therefore, his guilty plea was a nullity and he had a right to withdraw it. As a sort of alternative, he argues that it was an abuse of discretion for the County Court, having ruled that defendant had mistakenly pleaded guilty to a felony, not to allow him to withdraw that plea and plead anew to the misdemeanor. The latter position seems the correct one. Although there is no precise authority on the point it would seem that, once it was held that a defendant had pleaded to a felony because the indictment mistakenly charged a felony whereas the alleged facts constituted a misdemeanor only, he had a right to plead anew to the indictment considered as one for a misdemeanor. Although not precisely in point, People v. Farina (2 N Y 2d 454) is in accord with this reasoning (see, also, discussion in People v. Sullivan, 3 N Y 2d 196, 198,199).

In one sense it is true, as the District Attorney says, that defendant was not prejudiced by all this since he got a lighter sentence for the misdemeanor. But was he not deprived of his fundamental right to plead to the misdemeanor charge? And could it not be that he pleaded guilty because he was charged with a “ felony ”? It follows, we think, that under all the circumstances it was an abuse of discretion not to allow the plea to be withdrawn as well as to strike down the sentence.

While defendant argues that no crime at all was charged in the indictment, his real position seems to be that a misdemeanor only was charged and that has been held in his favor by both courts below and seems correct. The absence of any allegation that defendant had previously been convicted prevents the application of subdivision 5 of section 1897 of the Penal Law which makes it a felony for one to possess any firearm of a size which may be concealed upon the person without a license if he has been previously convicted of any crime. For the same reason the acts charged in this indictment could not be a felony under subdivision 4 of section 1897. The facts alleged could not constitute a felony under subdivision 5-a of section 1897 since that subdivision requires that a loaded firearm or a firearm and a quantity of ammunition which may be used to discharge the firearm be carried concealed upon the person.

There seems to be no controlling decision. The District Attorney puts reliance on People ex rel. Wachowicz v. Martin (293 N. Y. 361) but the Wachowicz holding was this only: that when a defendant deliberately and designedly pleaded guilty to a lesser but not an included charge, there was not such a lack of jurisdiction as to permit habeas corpus. The prosecutor argues, too, that the granting or denial of a motion for withdrawal of a guilty plea is within the discretion of the court. As a generality that is true but it should not be applied to situations like this where the plea of guilty was entered by mistake of all concerned.

The judgment appealed from should be reversed and the case remitted to the County Court of Queens County for further proceedings not inconsistent with this opinion.

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

Judgment reversed, etc.


author: Dye, J. Desmond, J.

text:
    David Falk et al., Respondents, v. Meyer F. Goodman, Appellant.
    Submitted October 5, 1959;
    decided December 30, 1959.

      Meyer F. Goodman and Paul Edwin Kast for appellant.
    I. No defense of fraud in the inducement was intended or asserted in the action. II. All defenses are available to defendant herein. (Rosen v. Equitable Life Assur. Soc., 289 N. Y. 333.) III. Parol evidence and fraud have no application to this case. IY. The affirmative defense pleaded is sufficient in law and raises triable issues of fact. (Patterson v. Meyerhofer, 204 N. Y. 96; Dolan v. Rodgers, 149 N. Y. 489; Vandegrift v. Cowles Eng. Co., 161 N. Y. 435; Mokar Props. Corp. v. Hall, 6 A D 2d 536; Suslensky v. Metropolitan Life Ins Co., 180 Misc. 624, 267 App. Div. 812.) V. There is no obligation on the part of defendant to plead or establish injury or damage to the sellers. (Lawrence v. Miller, 86 N. Y. 131; Kaplan v. Scheiner, 1 A D 2d 329; Mistroff v. Scar-White Homes, 281 App. Div. 844.) VI. Triable issues of fact with respect to plaintiffs’ breach of conduct have been raised.

      Julius Siegel for respondents.
    I. A purchaser has a right to recover a down payment where the contract of sale is contingent upon the purchaser’s obtaining a mortgage of a specified amount and upon specified terms from a lending institution, where the purchaser makes application therefor but is unable to obtain such mortgage commitment. II. Since the contract of sale contains a merger clause, all conversations had prior to the execution of the contract of sale are inadmissible in evidence to vary or contradict the terms of the contract as same would be in violation of the parol evidence rule. (Pelnorth Constr. Corp. v. Mac Gordon, 6 Misc 2d 533; Sabo v. Delman, 3 N Y 2d 155.) III. Under rule 92 of the Rules of Civil Practice, defendant must deny the allegation of due performance alleged in the complaint specifically and with particularity and the failure to do so does not create any disputed issues as to due performance. IV. Defendant has failed to plead and prove that he or the sellers sustained any damage or injury by reason of the alleged fraud. (Ochs v. Woods, 221 N. Y. 335.) V. No triable issue has been raised with respect to plaintiffs’ diligent application to obtain a mortgage commitment. (Wigand v. Bachmann-Bechtel Brewing Co., 222 N. Y. 272; Suslensky v. Metropolitan Life Ins. Co., 180 Misc. 624, 267 App. Div. 812; Newman v. Newark Fire Ins. Co., 281 App. Div. 852.)
   Dye, J.

In this action to recover a deposit made in connection with a contract for the purchase and sale of a dwelling, the plaintiffs have a judgment in their favor entered on an order granting a motion for summary judgment (Rules Civ. Prac., rule 113).

According to the complaint, the contract of purchase and sale was conditioned on the plaintiffs’ ability to obtain a bank commitment and Federal Housing Administration (FHA) approval for an FHA mortgage in the sum of $16,250 for a period of 30 years at the prevailing rate of interest. In the event that such a mortgage commitment could not be obtained within 60 days then, on not more than 5 days’ written notice to the sellers, all moneys deposited were to be refunded and the contract deemed null and void. Before the expiration of the appointed time, the parties amended the contract to permit an alternative application for a conventional mortgage in the sum of $15,125 amortized over a period of 20 years — other conditions of the contract were not changed except as necessarily modified by change of date and cash consideration. The contract also contained a conventional type clause merging all oral understandings and representations into the written contract which was deemed to contain the entire agreement. The snm of $2,125 had been deposited with the defendant as escrow agent who was also attorney for the seller, and was accepted by him ‘‘ under all of the terms and conditions ” of the contract.

When the plaintiffs’ applications to several lending institutions for a mortgage loan in the amount needed were disapproved, they demanded refund of the deposit from the escrow agent and, when refused, commenced this action against him as sole defendant. The defendant then interposed an answer denying generally the allegations of the complaint and, as an affirmative defense, alleging: ‘ ‘ That the plaintiffs, solely for the purpose of evading their just and legal obligations under and by virtue of the terms of the contract in suit, as amended, wilfully and falsely misrepresented their financial status and income, so as to prevent the issuance of the bank commitment contemplated by the agreement.” This defense was amplified by the defendant’s papers filed in opposition to the motion for summary judgment. Therein it is alleged that when the plaintiffs were told, in the course of the preliminary negotiations leading to the making of the contract, that, in order to get an FHA mortgage in the amount needed from a lending institution, an applicant would have to show an income of at least $200 per week, the plaintiff husband said in response: Well, we don’t have a thing to worry about. I can show easily that I earn more than that.” When, however, the plaintiffs came to make their application to several lending institutions for the desired mortgage loan, they stated their income was only about $102 per week, an amount insufficient to support a commitment in the amount needed.

It is to be noted that the defendant, in his answer, does not challenge the validity of the contract in its making, but rather he claims that the plaintiffs’ allegedly false and fraudulent representations to various lending institutions as to their true income were made for the purpose of activating the escape clause and defeating enforcement of the contract in accordance with its express terms. This distinction seems to have escaped the Special Term and the court below, since the motion was granted in reliance on the parol evidence rule against varying the terms of a written contract. That rule is not now available as a basis for granting summary judgment, since it seems clear that the issue raised by the defendant’s answer is not fraud in the making but, rather, fraud in the carrying out of a concededly valid contract. Whether this defense can be established at the trial need not detain us at this time, since we deal solely with whether a judgment should issue summarily.' We think not, for the bad faith pleaded — if established • — would constitute a willful nonperformance of a condition subsequent and thus destroy plaintiffs’ right to recover the deposit. This can be satisfactorily ascertained only following a trial. It is well established that summary judgment may not be granted whenever the pleadings raise clear, well-defined and genuine issues; nor may it be granted whenever there is doubt as to the existence of a triable issue or when the issue is arguable since “ ‘ issue-finding, rather than issue-determination, is the key to the procedure ’ ” (Sillman v. Twentieth Century-Fox Film Corp., 3 N Y 2d 395,404 [1957]). This is so because the granting of such a motion is the procedural equivalent of a trial.

This defendant may interpose the defense as pleaded because, as a stakeholder, he is bound to fulfill his duties properly and thus has an interest in the event. To that end, he has standing to compel proof of a clear right to the stake. The remedy of interpleader does not bar him from asserting defenses existing in favor of the vendor. Thus viewed, the pleadings present an issue which the defendant is entitled to litigate.

The judgment of the Appellate Division should be reversed and the motion for summary judgment should be denied, with costs in all courts.

Desmond, J.

(dissenting). In my opinion, plaintiffs were entitled to this summary judgment which, in strict accordance with the terms of the sale contract, gives them back their earnest money because they were unable to arrange a mortgage to finance the purchase. Defendant, an escrowee, tried to avoid repayment by alleging that plaintiffs willfully so conducted themselves as to prevent the acceptance of any of their several applications to lending institutions for the mortgage money. It is undisputed that plaintiffs did make the applications and did furnish the information required by the banks but all the applications were denied. Thereupon, plaintiffs vendees, as was their right under the land contract, demanded their deposit back from defendant escrowee. The escrowee refused to give it back, asserting that plaintiffs, while ostensibly applying for mortgage loans, made any grant of any of the applications impossible by undprstating their own income and financial resources. This remarkable allegation, however, has no support in the papers which defendant filed in opposition to plaintiffs’ summary judgment motion, and so the motion was properly granted.

As evidentiary basis for his alleged defense that plaintiffs willfully understated their assets and income so as to forestall the making of the loans they themselves had applied for, defendant points to one alleged conversation between the vendor and plaintiffs during the negotiations preceding the signing of the contract for the sale of the house. According to the affidavit opposing the summary judgment motion, plaintiff husband, when told that to get the necessary mortgage loan plaintiffs would have to show at least $200 per week income, replied that he could easily show that he earned “more than that”. The detailed information later supplied by plaintiffs to the lenders they approached showed weekly income of a little more than $100 per week, plus sizable bank accounts, plus moneys owed to plaintiffs, plus ownership by them of a corporation which operated a retail shop. The alleged pre-contract remark as to plaintiff’s earnings is the sole support for the allegation that to assure the denial of their mortgage application plaintiffs made willfully fraudulently false statements as to their earnings and resources. Proof at the- trial that such a remark was made during the purchase-sale negotiations certainly would not make out a jury issue as to the deliberate falsity and fraudulent intent of the later-made mortgage applications. It is still the rule that, to defeat summary judgment, a pleader must show evidentiary facts, not suspicions or wild surmise (Shapiro v. Health Ins. Plan of Greater N. Y., 7 N Y 2d 56).

I agree that there is no issue here as to any fraud in the making of the contract.

The judgment should be affirmed, with costs.

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

Judgment reversed, with costs in all courts, and case remitted to Special Term for further proceedings in accordance with the opinion herein.


author: Dye, J.

text:
    Lewis H. Gibson, as Administrator of the Estate of Louise Gibson, Deceased, Respondent, v. John T. Meehan, Public Administrator of Bronx County, as Administrator of the Estate of Augustine De Lano, Deceased, Appellant.
    Argued October 9, 1959;
    decided December 30, 1959.

      John Nielsen and John P. Smith for appellant.
    The cause of action for wrongful death was not timely commenced. (Matter of Richman, 168 Misc. 834; White v. Nemecek, 170 Misc. 569.)

      Herman Frankel for respondent.
    The defense of the Statute of Limitations was insufficient in law and was properly stricken. (McDonough v. Cestare, 3 A D 2d 201; Matter of McGowan, 174 Misc. 928; Matter of May, 160 Misc. 497, 255 App. Div. 31; Matter of Richman, 168 Misc 834; White v. Nemecek, 170 Misc. 569.)
   Dye, J.

In this appeal by permission upon a certified question, we deal with the time limitations for the commencement of an action for wrongful death, as provided in section 21 of the Civil Practice Act and section 118 of the Decedent Estate Law, insofar as applicable to the unusual facts of this case.

It is undisputed that the plaintiff’s intestate, Louise Gibson, sustained fatal injuries in an automobile accident that occurred March 6, 1955, allegedly due to the negligence of defendant’s intestate, Augustine De Lano, who at the same time suffered fatal injuries and died on the day of the accident. Three days later and on or about March 9, 1955, De Lano was followed in death by the plaintiff’s intestate. Thereafter, letters of administration were duly issued to the representatives of the Gibson estate on May 2,1955 and to the estate of De Lano June 30,1958.

This action was commenced July 14, 1958. The complaint alleges two causes of action: the first for damages for wrongful death, and the second for damages for conscious pain and suffering prior to death. The sufficiency of the action based on wrongful death is challenged on the ground of untimeliness for the sole reason that the defendant’s intestate, having predeceased the plaintiff’s intestate by three days, was not “ a person against whom a cause of action exists ”, within the meaning of section 21 of the Civil Practice Act. While a literal reading of section 21 without more would seem to support the appellant’s contention, this statute — like any other — may not be read in vacuum, but must be examined in light of and read in connection with other legislative pronouncements on the same or kindred subjects.

The second paragraph of section 118 of the Decedent Estate Law permits survival of a cause of action against a wrongdoer’s legal representative, even though the wrongdoer has predeceased his victim. That paragraph, when fairly read, recognizes the survival of a wrongdoer’s potential liability for acts done in his lifetime, on which an action for wrongful death may be brought against his estate representatives if, as and when that action accrues by virtue of the victim’s resulting death.

The legislative history behind the enactment of the second paragraph reveals that it was designed and intended to cover a situation such as this. Its enactment was recommended by the New York State Law Revision Commission (1941 Report of N. Y. Law Rev. Comm., pp. 89-90), when its attention was called to a Massachusetts ruling taking cognizance of the New York State statutes as then existing, to defeat a claim for wrongful death because it had not been shown that the defendant was “ a living person against whom a cause of action could arise” when Silva (the plaintiff) was injured; this for the reason that “If no cause of action has arisen against a living 1 person liable ’ ” there is nothing upon which either of these sections (that is, [New York] Decedent Estate Law, §§ 118-119) can operate (Silva v. Keegan, 304 Mass. 358, 359-360 [1939]). Along with this decision, the Law Revision Commission also noted (1941 Report, pp. 94^-95) that in some other jurisdictions such a cause of action was deemed to arise at the time of the wrong (Kerr v. Basham, 62 S. D. 301 [1934], and, in New Jersey, Ehrlich v. Merritt, 96 F. 2d 251 [C. C. A. 3d., 1938]).

It was this conflict in dealing with a situation which was bound to arise under contemporary conditions of highway travel, and the all too frequent occurrence of accidents causing injuries to persons in the vehicles involved, that demonstrated the need for survival of potential liability beyond the death of the wrongdoer. In other words, it was seen that the fortuitous circumstance of time of death should not be allowed to defeat the rights and remedies usually accruing to the victim of a tortious act or his estate representatives. To employ the language of the commission, its purpose was ‘ ‘ to make clear that under section 118 of the Decedent Estate Law an action against an executor or administrator, for injury to person or property or for wrongful death, is not defeated because the tort-feasor died before the occurrence of such injuries or wrongful death.” (1942 Report of N. Y. Law Rev. Comm., p. 777 n.)

When section 21 is read in light of the second paragraph of section 118, it seems abundantly clear that the Legislature intended that the cause of action envisioned by section 21, including a cause for wrongful death, exists in the sense that it arises from the decedent’s tortious act, even though the action for wrongful death does not actually accrue until the death of the victim; in other words, a suit for wrongful death commenced within the time limitations of section 21 is not affected by the death of the tort-feasor prior in point of time to that of his victim.

The order should be affirmed, with costs, and the question certified answered in the affirmative.

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

Order affirmed, etc.

        “ § 118. Actions against executors or administrators for injury to person or property. * * * Where death or an injury to person or property, resulting from a wrongful act, neglect or default, occurs simultaneously with or after the death of a person who would have been liable therefor if his death had not occurred simultaneously with such death or injury or had not intervened between the wrongful act, neglect or default and the resulting death or injury, an action to recover damages for such death or injury may be maintained against the executor or administrator of such person.”