text:
    In the Matter of the Claim of Freda A. Flo, Claimant, against General Electric Company et al., Respondents. Workmen’s Compensation Board, Appellant.
    Argued October 15, 1959;
    decided December 30, 1959.

      Louis J. Lefkowitz, Attorney-General (Daniel Polansky, Paxton Blair and Roy Wiedersum of counsel), for Workmen’s Compensation Board, appellant.
    I. Since the board’s conclusion that claimant’s nonpregnancy disability occurred before the termination of her maternity leave of absence was supported by substantial evidence, and since the award was authorized by section 203 of the Disability Benefits Law, it was error to set aside the award and dismiss the claim. (Matter of Kriete v. Todd Shipyards, 308 N. Y. 1027; Matter of Gordon v. New York Life Ins. Co., 300 N. Y. 652; Matter of Altschuller v. Bressler, 289 N. Y. 463; Matter of Daus v. Gunderman & Sons, 283 N. Y. 459; Matter of Young v. Bragalini, 3 N Y 2d 602, 4 N Y 2d 879; Matter of New York Post Corp. v. Leibowitz, 2 N Y 2d 677; Matter of Cherkis v. Impellitteri, 307 N. Y. 132; Matter of Schmidt v. Wolf Contr. Co., 269 App. Div. 201, 295 N. Y. 748; Matter of Moskowitz v. La Guardia, 183 Misc. 33, 268 App. Div. 918, 294 N. Y. 830; Matter of Petrie, 215 N. Y. 335.) II. The employer respondent’s disability benefits plan sanctioned the board’s award. Since a pregnancy disability was deemed a disability under the plan, claimant was in employment during her maternity leave on October 31, 1953, when she suffered her nonpregnancy disability.

      Lewis G. Ryan, William H. Barnes and John F. Gates for respondents.
    I. Claimant is not entitled to benefits under the Disability Benefits Law because her disability did not occur while she was ‘ ‘ in employment ’ ’, as that term is used in section 203 of the statute, or within a period of four weeks after the termination of such employment. (Matter of Russomanno v. Leon Decorating Co., 306 N. Y. 521; Matter of Emery [Corsi], 281 App. Div. 426; Matter of Knapp v. Syracuse Univ., 308 N. Y. 274; Meltzer v. Koenigsberg, 302 N. Y. 523; Perkins v. Smith, 116 N. Y. 441.) II. Claimant is not entitled to any greater benefits under the plan than she had under the statute. There was no coverage for her disability under either.
   Dye, J.

The dispositive question on this appeal is whether or not a female employee who is on maternity leave is ‘ ‘ in employment ” within the meaning of the term “in employment ”, as set forth in section 203 of the New York State Disability Benefits Law (Workmen’s Compensation Law, art. 9).

It is undisputed that the claimant, a married woman, had been in the employ of the General Electric Company for more than six years prior to July 3, 1953; that on that day she went on compulsory maternity leave of absence without pay pursuant to company rules requiring pregnant employees to stop work in the seventh month of pregnancy. By the same rule, a pregnant employee was required to remain away from work for at least eight weeks following birth of the child; the child was born September 29, 1953, the claimant being confined until October 4, 1953. Thereafter, on October 31, 1953, which was within the eight weeks’ waiting period prescribed by the rule, the claimant was readmitted to the hospital for surgery unrelated to the pregnancy, causing her to be disabled from October 31,1953 to February 6,1954, for which period (less the statutory period of waiting) the Workmen’s Compensation Board made her an award of disability benefits (Disability Benefits Law [Workmen’s Compensation Law, art, 9], § 204). This was on the basis that the employee’s compulsory maternity leave of absence did not constitute a termination of employment.

Upon an appeal to the Appellate Division, that court reversed the award and dismissed the complaint because a majority took the view that the employer’s liability to pay disability benefits was not dependent on the existence of the employer-employee relationship but, rather, upon whether the claimant was in active wage-earning employment at that time ”. We believe this was erroneous as matter of law.

On the date the claimant’s compulsory leave began, she was ‘ ‘ in employment ’ ’ and had been for more than the required time to qualify for eligibility under the Disability Benefits Law; that her employment continued during the period of pregnancy leave was recognized by the employer by payment of pregnancy benefits according to the prescribed schedule, continuance of her insurance and maintenance of her employment status pending return to active work pursuant to the collective bargaining agreement then in force. True, during the period of leave, she was not actually performing services for her employer, but this does not mean that the involuntary taking of such leave amounted to a severance of employment so as to defeat her eligibility for disability benefits for a nonpregnant disability occurring before the termination of the maternity leave. Such a result would be contrary to the legislative objective. The Disability Benefits statute is broad in concept and general in terms. It was designed to assist the employee of the State who suffered disability by bridging the gap between the Workmen’s Compensation Law and the Unemployment Insurance Law. Unlike the Workmen’s Compensation Law, the Disability Benefits Law contains no requirement that the cause of a disability arise out of and in the course of employment. It contemplates a broad social coverage to protect the employee against the hazard of sickness and disability which interfere with and prevent his continuance in active employment and which can occur and do occur both within and outside of working hours. To be effective, it depends on the concept that employment continues until terminated.

Section 203, insofar as pertinent, specifically provides that “ Employees in employment of a covered employer for four or more consecutive weeks * * * shall be eligible for disability benefits * * * Every such employee shall continue to be eligible during such employment ” (emphasis supplied).

By legislative definition (see § 201) “ ‘ Employment ’ means employment in any trade, business or occupation carried on by an employer,” with certain exceptions not here involved. 1 ‘ ‘ Disability ’ during employment means the inability of an employee, as a result of injury or sickness not arising out of and in the course of an employment to perform the regular duties of his employment ” (§ 201). When read in context and in light of the whole statutory scheme, it seems clear beyond any doubt that, when the Legislature employed the term ‘ ‘ in employment ”, they meant the relationship commonly understood as existing between the employer and employee and intended that it should continue unless and until severed. Here, as we have said, there was no severance of that relationship. The parties . having recognized continuance of the employment relationship for all other purposes, it seems patently unreal and contrary to the spirit and obvious intent of the statute to say that, for purposes of disability, the performance of actual work must be continuous. In fact, when the Legislature used the term “ every such employee shall continue to be eligible during such employment ”, they negated any such result (§ 203). Nowhere does the statute use words or language limiting disability benefits to disabilities occurring within the time limitations calculated from the last day the claimant actually performed work; nor may such limitation reasonably be read into the term “in employment ”. If there be any doubt — and we have none — as to the ordinary and usual meaning of that phrase, it should be construed liberally and in harmony with the purpose to be accomplished (Matter of New York Post Corp. v. Leibowitz, 2 N Y 2d 677; Matter of Schmidt v. Wolf Contr. Co., 269 App. Div. 201, affd. 295 N. Y. 748). In fact, our recent decisions, as well as the view of the text writers, approve the concept of employment status as directly related to the legislative objective (1 Larson, Workmen’s Compensation Law, § 43.41, pp. 628-629). For instance, in Matter of Kriete v. Todd Shipyards (285 App. Div. 36, affd. 308 N. Y. 1027), an employee’s eligibility for disability benefits was questioned because the disability complained of occurred within two weeks following his return to work after a medical leave of absence, the contention being that he did not satisfy the statutory provision ‘1 in employment of a covered employer for four or more consecutive weeks It appeared, however, that the claimant had worked for the same employer for upwards of 11 years under the “ shape up ” system in use on the waterfront and that during that time he had worked for several periods “of four or more consecutive weeks”. In affirming the award we necessarily held that the employment relationship had existed for the required statutory time. In Matter of Decker v. Dunkler (8 A D 2d 891) we denied a motion for leave to appeal (7 N Y 2d 705 [Oct. 8, 1959]). In that case the disability occurred during the period the employee was disabled by reason of an accident covered by the Workmen’s Compensation Law. There the board made a specific finding that the claimant’s employment was not terminated during the period of his “on the job” disability, thus employing the principle that the statute should be applied in light of the existing employer-employee relationship. However, when the employer-employee relationship has not existed long enough to satisfy eligibility requirements, then a claim for benefits will be denied (Matter of Russomanno v. Leon Decorating Co., 306 N. Y. 521), as is also the situation where the employer is not covered (Matter of Knapp v. Syracuse Univ., 308 N. Y. 274).

Nothing in subdivision 3 of section 205 has any possible bearing on this problem, since the period of disability neither resulted from nor arose in connection with pregnancy. Bather, the causes were wholly disconnected. The question of employment is one of fact and lies within the province of the fact-finding powers of the Workmen’s Compensation Board.

The remaining question as to whether the claimant is entitled to disability benefits under the General Electric insurance plan need not detain us, for it necessarily follows that, if the claimant’s employment relationship qualifies her for eligibility for disability benefits under the act, she was entitled to disability benefits under the insurance plan “ at least as favorable as the [statutory] benefits ” (Disability Benefits Law, § 211, subd. 4). Anything contained in such plan contrary or inconsistent with the statute must yield thereto.

The order should be reversed and the award of the Workmen’s Compensation Board reinstated, with costs in this court and in the Appellate Division to the Workmen’s Compensation Board.

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

Order reversed, etc.


source: Caselaw Access Project

author: Froessel, J.

license: Public Domain

text:
    De Lillo Construction Co., Inc., Respondent, v. Lizza & Sons, Inc., Appellant, et al., Defendants.
    Argued November 17, 1959;
    decided December 30, 1959.

      Max Gerber for appellant.
    The court should have granted plaintiff’s motion for a stay of all proceedings pending arbitration. (Matter of Young v. Crescent Development Co., 240 N. Y. 244; Zimmerman v. Cohen, 236 N. Y. 15; Dias v. De Lillo Constr. Co., 16 Misc 2d 434; Matter of Marchant v. Mead-Morris Mfg. Co., 252 N. Y. 284; Gilbert v. Burnstine, 255 N. Y. 348; Matter of Crosett [Mt. Vernon Housing Auth.], 275 App. Div. 1051, 276 App. Div. 848; Matter of Lipman [Haeuser Shellac Co.], 263 App. Div. 880, 289 N. Y. 76; American Reserve Ins. Co. v. China Ins. Co., 297 N. Y. 322; Matter of River Brand Rice Mills v. Latrobe Brewing Co., 305 N. Y. 36.)

      Emil V. Pilz for respondent.
    I. Plaintiff’s motion for a stay was properly denied. (Matter of Writers Guild of America East [Prockter Prods.], 1 N Y 2d 305; Matter of Riverdale Fabrics Corp. [Tillinghast-Stiles Co.], 306 N. Y. 288; Matter of Lehman v. Ostrovsky, 264 N. Y. 130; Matter of Marchant v. Mead-Morrison Mfg. Co., 252 N. Y. 284; Silas Mason Co. v. City of New York, 249 App. Div. 538, 275 N. Y. 514; Evelyn Bldg. Corp. v. City of New York, 257 N. Y. 501; Matter of Young v. Crescent Development Co., 240 N. Y. 244; Gold Plastering Co. v. 200 E. End Ave. Corp., 282 App. Div. 1073, 307 N. Y. 668; Matter of Zimmerman v. Cohen, 236 N. Y. 15; Matter of Morris Demolition Co. v. Driscoll Co., 273 N. Y. 330.) II. The language used “ under this contract and in the performance of the work thereunder ” cannot refer to breach of contract. (Faber v. City of New York, 222 N. Y. 255; Gearty v. Mayor of City of N. Y., 171 N. Y. 61.) III. The arbitration clause is unenforeible because it is revocable. (Matter of Colwell Worsted Mills [Glass], 228 App. Div. 150; Matter of Helen Whiting, Inc. [Trojan Textile Corp.], 307 N. Y. 360; Rentways, Inc., v. O’Neill Milk & Cream Co., 308 N. Y. 342; Persky v. Bank of America Nat. Assn., 261 N. Y. 212.) IV. Arbitration cannot be had so far as defendant Travelers Indemnity Company is concerned. (Chittenden Lbr. Co. v. Silberblatt & Lasker, 288 N. Y. 396; Triple Cities Constr. Co. v. Dan-Bar Contr. Co., 285 App. Div. 299, 309 N. Y. 665; Westchester Asphalt Distr. Corp. v. Yonkers Contr. Co., 4 A D 2d 774, 4 N Y 2d 751; May v. New Amsterdam Cas. Co., 270 App. Div. 472.)
   Froessel, J.

In this action against the defendant contractor, the plaintiff subcontractor seeks: (1) to foreclose two mechanics’ liens for work allegedly performed under the subcontract; (2) to recover on the labor and material bond given by defendant contractor and its surety; (3) to recover for work and extra work allegedly performed under its subcontract and for loss of profits thereunder; (4) to recover additional damages resulting from defendant’s alleged interference with and delays of plaintiff in the prosecution of its work under the subcontract; and (5) a recovery under former section 25-a of the Lien Law as a result of nonpayment for work allegedly performed under the subcontract.

The complaint alleges numerous acts in violation of. the subcontract and among others the following: That defendant failed to make two progress payments due plaintiff; that defendant prevented plaintiff from doing the paving work in three “ critical ” areas, defendant taking over such work with its own forces, notwithstanding the fact that plaintiff was “ready, willing and able ” to proceed with such work as soon as defendant gave plaintiff the necessary grade stakes in those areas; that defendant directed plaintiff to remove its equipment from the contract work; that defendant refused to give plaintiff proper access to the project and refused to provide the proper subgrades; that defendant “ repudiated ” the subcontract; and that defendant “interfered with, hindered and wholly prevented the completion by plaintiff of the work to be performed by it under its said subcontract ”.

Defendant contractor moved for a stay of this action pending arbitration in accordance with an agreement of the parties, contained in' the subcontract, which agreement provided for the submission to arbitration of ‘ ‘ All questions that may arise under this contract and in the performance of the work thereunder ”. Both courts below held that the instant controversy was not arbitrable, and accordingly denied the motion for a stay.

Plaintiff on this appeal argues that, since it alleges a breach and repudiation of contract by defendant, the controversy and questions which arise are not in “ recognition ” of the contract and hence are not arbitrable. This contention is without merit. Suits for breach of contract raise issues concerning the mutual rights and obligations of the parties to the contract These issues must be resolved by reference to and interpretation of the provisions of the contract, and are comprehended within the scope of the instant arbitration agreement. To allow plaintiff to conclusorily frame the issue in terms of breach and repudiation, and thereby avoid arbitration, would render the instant arbitration agreement meaningless.

Plaintiff's argument is based on some language in Matter of Young v. Crescent Development Co. (240 N. Y. 244) which the courts below felt constrained to follow. In that case, the parties had agreed, in language identical with that contained in the instant agreement, to submit future disputes to arbitration. In its petition demanding arbitration in that case, the contractor claimed there was due it two sums of money — -a large sum “for work and materials and a still larger sum by way of damages because the owner had delayed it in the performance of the contract” (emphasis supplied; 240 N. Y., at p. 247). Chief Judge Hiscock, writing for the court, framed the questions presented in the case as follows: First, “ whether the contractor’s claim for damages because of the alleged fault of the [owner] in preventing the performance of the contract is a dispute which comes within the fair interpretation of the arbitration clause in the contract ” (emphasis supplied; ibid.); and, second, whether the receivers of the contractor by filing mechanics’ liens upon and against [the owner’s] property have done something which is so inconsistent with their right to arbitration that they must be regarded as having waived or abandoned that right ’ ’ (id., at pp. 247-248). The first question was answered by the opinion in the negative and the second in the affirmative.

In the course of his response to the first question, which dealt only with the claim for damages arising out of delay caused by the owner, Chief Judge Hiscock defined the scope of the agreement to arbitrate. However, the holding in the case did not actually turn on the scope of the submission, as defined; it turned rather on waiver and abandonment of the right to arbitrate (the second question framed) upon which six judges agreed. The tenor of the opinion makes this apparent. To quote Chief Judge Hiscock, the first question was “ close and debatable ” and “ passing this ” first question, he proceeded to discuss the “more important question” of waiver and abandonment. Further, since the majority disposed of plaintiff’s two claims — one of which was not even discussed — on the basis of waiver and abandonment, there was no necessity to dwell even doubtfully upon the first alleged ground.

Our holding in Matter of Marchant v. Mead-Morrison Mfg. Co. (252 N. Y. 284) is apt and decisive here. The instant dispute between Lizza and De Lillo had its origin in the contract and prominently raises issues concerning the rights and obligations of the parties under the contract and in the performance thereunder. It is, therefore," arbitrable, in accordance with the fair meaning of their agreement, except, on the basis of our holding in Matter of Marchant v. Mead-Morrison Mfg. Co., with regard to one aspect of the claim for consequential damages asserted in the fourth cause of action. As to that claim, the issue of breach of contract is within the scope of the instant submission, but the assessment of damages is not. In Matter of Marchant v. Mead-Morrison Mfg. Co. the arbitration agreement, which is ' akin to that at bar, provided for the submission of 1 ‘ any controversy [which] * * * shall arise as to the construction of the terms and conditions of this' contract, or as to its performance ” (id., at p. 290). We held that, while the arbitrators could determine whether or not there was a breach of the contract, it was beyond their power to assess consequential damages for a bankruptcy caused by a delay of one of the parties.

We recognize that the arbitration clause here is not quite as broad as in such cases as Matter of Lipman (Haeuser Shellac Co.) (289 N. Y. 76). There, the language of the arbitration clause provided for arbitration of 1 ‘ any and all controversies in connection with the contract ’ ’ (id., at p. 80; emphasis supplied). From such cases, and in connection with such broad arbitration provisions, the principle has evolved that ‘ ‘ all issues subsequent to the making of the contract are not for the court but for the arbitrators ” (ibid.). Here, the arbitration clause may be said to be somewhat limited.

Accordingly, we hold that the controversy existing between the parties to this action is arbitrable in accordance with their agreement, except as to the assessment of dapiages under plaintiff’s fourth cause of action. The orders of the Appellate Division and Special Term should therefore be modified so as to provide for the granting of the motion to stay this action, except as to the assessment of damages under the fourth cause of action, and as so modified affirmed, with costs. The question certified should be answered in the negative.

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

Order modified in accordance with the opinion herein and, as so modified, affirmed, with costs to appellant in this court and in the Appellate Division. Question certified answered in the negative.

       The law has since been changed; see Lien Law, § 35.


text:
    The People of the State of New York, Appellant, v. Floyd E. Palen, Respondent.
    Argued October 20, 1959;
    decided December 30, 1959.

      John T. Casey, District Attorney, for appellant.
    I. Section 1290-a of the Penal Law does not prevent all conversations between complainant and defendant from being admissible into evidence. (People v. Ercole, 308 N. Y. 425; People v. Molineux, 168 N. Y. 264; People v. Felber, 264 App. Div. 181; People v. Cohen, 4 A D 2d 557, 5 N Y 2d 282; People v. Lehrer, 182 Misc. 645.) II. The enactment of section 1290-a of the Penal Law and its amendments did not change the rule that the prosecution must prove reliance on the false representations. (People v. Leibowits, 12 Misc 2d 553; People v. Baker, 96 N. Y. 340.) III. If error were committed, it was not substantial error. (People v. Vanderborg, 301 N. Y. 750; People v. Ramistella, 306 N. Y. 379.)

      M. Andrew Dwyer, Jr., for respondent.
    I. The trial court erred in permitting testimony tending to prove a larceny by false pretenses in contravention of section 1290-a of the Penal Law of the State of New York. (People v. Lobel, 298 N. Y. 243; People v. Willett, 102 N. Y. 251; People v. Dumar, 106 N. Y. 502; People v. Noblett, 244 N. Y. 355; People v. Ehrlich, 190 App. Div. 302; People v. Cohen, 148 App. Div. 205; People v. Sloane, 254 App. Div. 780; People v. Page, 182 Misc. 253; People v. Salter, 191 App. Div. 723; People v. Ryan, 274 N. Y. 149.) II. Section 1290-a of the Penal Law prohibits reception of evidence of conversations between complainant and defendant which tend to prove a larceny by false pretenses. (People v. Lobel, 298 N. Y. 243.)
   Froessel, J.

Defendant was convicted of grand larceny in the first degree, and sentenced as a prior felony offender to imprisonment for not less than 10 nor more than 20 years. The Appellate Division reversed upon the law alone, and ordered a new trial. The only question before us on this appeal is whether the trial court — over the repeated objections of the defense — improperly received evidence of false or fraudulent representations or pretenses, in violation of section 1290-a of the Penal Law.

In 1942 (L. 1942, ch. 732), the Legislature abolished “the subtle and confusing distinctions that had previously differentiated the various types of theft ” (People v. Karp, 298 N. Y. 213, 216). The 1950 amendment (L. 1950, ch. 149) of section 1290-a made it perfectly clear that the Legislature did not intend to preserve these distinctions for the purpose of determining whether false or fraudulent representations or pretenses had to be pleaded in the indictment (see New York State Legislative Annual, 1950, pp. 54-55; Judge Fuld’s dissenting opinion in People v. Lobel, 298 N. Y. 243, decided under former § 1290-a). This amendment unequivocally provided that the necessity for alleging false representations in the indictment was not limited to thefts previously prosecuted under the label “ obtaining property by false pretenses ”, but encompassed every case in which the defendant “made use of any false or fraudulent representation or pretence, in the course of accomplishing, or in aid of, or in facilitating the theft

In the instant case, the defendant “made use of” at least two false representations “in the course of accomplishing, or in aid of, or in facilitating the theft ’ ’, neither of which representations was alleged in the indictment, and evidence of which was improperly received over the repeated objections of defendant’s attorney. Hence the conviction was properly reversed and a new trial ordered, and it is now incumbent upon the People to ‘ determine whether to retry the case on the present indictment— and desist from offering proof of false representation — or to seek a new indictment alleging the essential false representation and pretense ” (dissenting opinion in People v. Lobel, supra, p. 262). As the Appellate Division correctly noted in this connection, a new indictment would not be subject to dismissal on the ground of double jeopardy (People v. Ercole, 4 N Y 2d 617).

The order appealed from should be affirmed.

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

Order affirmed.


author: Dye, J. Fboessel, J.

text:
    In the Matter of the Estate of Emil Geiger, Deceased. Imra Kaszaras et al., Appellants; Bernard J. Goldberger et al., as Executors of Emil Geiger, Deceased, Respondents.
    Argued October 13, 1959;
    decided December 30, 1959.

      Cornelius F. Gustav, in person, and A. J. Dell’Aquila for Cornelius F. Gustav and others, appellants.
    I. The enactment of section 269 of the Surrogate’s Court Act was for the protection of nonresidents beneficially interested in decedents’ estates. (Matter of Weidberg, 172 Misc. 524; Matter of Steiner, 172 Misc. 950; Matter of Landau, 172 Misc. 651; Matter of Bold, 173 Misc. 545; Matter of Landau, 187 Misc. 925; Matter of Braier, 305 N. Y. 148.) II. The assignment of an interest in a decedent’s estate by an alien nonresident beneficiary to a resident attorney to cover legal fees, if reasonable, is proper and enforcible. (Matter of Leonhauser, 183 Misc. 863; Burnham v. Brush, 176 Misc. 39; Matter of Abruzzo, 139 Misc. 559.)

      Edward Elman, Theodore Ornstein and Joseph Trachtman for respondents.
    I. The application, insofar as it requests payment to petitioner Gustav on behalf of the legatees involved, was properly denied. II. The Surrogate correctly refused to be bound by the terms of the assignment to petitioner Gustav, though same was absolute on its face. (Matter of DiFillipp, 162 Misc. 423; Matter of Garrity, 167 Misc. 947; Matter of Bargel, 5 Misc 2d 657.)
   Dye, J.

The individual petitioners, except Cornelius F. Gustav, are all presently citizens of and reside in Hungary and are distributees of the estate of Emil F. Geiger, deceased. Their distributive shares aggregating $29,166.70 are being withheld by the Surrogate, pursuant to section 269 of the Surrogate’s Court Act, for reasons stated in Matter of Herz (7 Misc 2d 217). The petitioner Gustav was formerly a member of - the Bar of Hungary and is now a member of the New York Bar, domiciled in New York City.

This proceeding was brought by the petitioner Gustav individually and as attorney in fact for the aforesaid beneficiary petitioners for an order to compel the executors of the Geiger estate to pay him, as assignee, the sum of $7,291.65, being 25% of the foreign beneficiaries’ share of the estate given “ in consideration of legal services rendered by said attorney to them ” and to pay to said Gustav, as attorney in fact, the sum of $250 monthly for the account of each of the foreign beneficiaries to the extent of their respective shares in the estate. The attorney in fact proposes to transfer the beneficial use of such funds to the respective beneficiaries by the purchase of so-called “ Ikka ” packages, which are an approved method for sending food and clothing in the nature of relief to persons residing in Hungary. We all agree that the petition, insofar as it concerned the payments of a distributive share to the petitioner distributees, was properly denied. The sole remaining issue is whether the assignment of 25% of the fund for legal services was also properly denied.

The purpose of section 269 as amended is to authorize the deposit of moneys or property in the Surrogate’s Court in cases where transmission or payment to a beneficiary, legatee or other person resident in a foreign country might be circumvented by confiscation in Avhole or in part, and to authorize the impounding of the fund by the Surrogate to await the time when payment can be made to the beneficiary for his own benefit, use and control (cf. Bill or Revision Notes, 13B Gilbert-Bliss,Surrogate’s Ct. Act, § 269).

The record before us does not demonstrate, nor have appellants shown, any circumstances to change the situation as it existed at the time of the Nassau County Surrogate’s determination in Matter of Hers (supra). On its face, the assignment is of the distributees’ share in said estate and, in light of •.the statute, relates to money which is not now within the distributees ’ beneficial use or control. This is not an application 11 ‘ for and to fix and determine the compensation of an attorney for services rendered to an estate * * * legatee, distributee or any person interested therein” (Surrogate’s Ct. Act, § 231-a), nor is any showing made or attempted to be made as to whether 25% of the aggregate shares of these beneficiaries is a reasonable fee for services rendered. The petition, as we read it, is to enforce recognition of an assignment made in Hungary pertaining to moneys which are not now in the possession or control of the assignors but, in fact, are under the control of the Surrogate. So long as the distributive shares are properly being withheld by the Surrogate because of the special circumstances in which the beneficiaries find themselves as domieiliaries in an iron-curtain country, they are in no position presently to assign any part of the funds withheld. They may not place an assignee in a better position than they themselves enjoy as principals. This is not to say, however, that an attorney may not in a proper proceeding and upon a proper showing request a fixation of reasonable fees for services rendered, chargeable against the fund (Surrogate’s Ct. Act, § 231-b).

The order appealed from should be affirmed, with costs to the respondents payable out of the estate.

Fboessel, J.

(dissenting). In this Surrogate’s Court proceeding, petitioners seek (1) payment of legal fees under an assignment from the nonresident beneficiaries in an estate, and (2) part payments to said nonresident beneficiaries in the form of food and clothing packages. These beneficiaries are entitled to the sum of nearly $30,000 from this estate.

As to the attorney’s fees, I agree with the dissenting Justices in the Appellate Division. Appellant Gfustav appears to have rendered substantial legal services to the estate, including services in connection with a lawsuit involving $250,000 to set aside a trust established by the deceased and which was successfully terminated by settlement. He left Hungary as a respected member of the Hungarian Bar in Budapest over 20 years ago, and has never returned. He served in the United States Army, from which he obtained an honorable discharge, became an American citizen, is now an attorney at law duly licensed to practice by the State of New York and is a member of the Federal Bar. So far as appears, he has no contact with the present Hungarian Government. He has performed his services, and if found reasonable is entitled to payment.

As to the payments due nonresident beneficiaries, the Surrogate, under section 269 of the Surrogate’s Court Act, is authorized to withhold payments where it shall appear that a legatee or distributee ‘ would not have the benefit or use or control of the money or other property due him, or where other special circumstances make it appear desirable that such payment should be withheld ”. This is an application for permission to withdraw installments of moneys for the purpose of sending food and clothing packages to the beneficiaries from time to time.

The Surrogate held no hearing on the application, but simply determined, on the basis of his former decision in Matter of Herz (7 Misc 2d 217), that the court “ does not believe it likely that the beneficiaries would have the' use or control of the property constituting the subject matter of the application” and that ‘ courts do not favor purported assignments of funds payable to iron-enrtain country nationals and have labeled them attempts to circumvent section 269 of the Surrogate’s Court Act”. This is not such an application. Had the Surrogate held a hearing, it might well have been developed, as alleged in the petition, that the beneficiaries are all of advanced age, who are [now] living [in Hungary] under difficult conditions and are in great need of assistance ’ ’, and that monetary assistance 1 ‘ can be transferred to them by sending food and clothing packages to each of them * * * free of duty and of any taxation ’ ’. It might well have been further developed that these nationals have no way of leaving Hungary; that they are the very victims of the “ events in Hungary ” to which the Surrogate referred; that they will probably die there and never receive the benefit of their legacies if the moneys are withheld; and that there are agencies which can assure delivery of food and clothing packages in reasonable amounts to named individuals.

It seems to me that the Surrogate abused his discretion in failing to grant a hearing so that these facts might have been developed and the matter decided, not on the basis of an application to pay legacies to iron-curtain country nationals, but on the application as made, namely, to allow reasonable sums of money for conversion into food and clothing packages upon a proper showing that they would reach the beneficiaries.

I vote for reversal and for a remission to the Surrogate of Nassau County for further proceedings not inconsistent with this opinion.

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

Order affirmed.


author: Froessel, J. Burke, J.

text:
    The People of the State of New York, Respondent, v. Leonard J. Lo Verde, Appellant.
    Argued October 8, 1959;
    decided December 30, 1959.

      Charles J. McDonough for appellant.
    I. The People’s theory and proof resulted in a merger of both the second and third counts in the first count. (People v. Tavormina, 257 N. Y. 84; Elkin v. People, 28 N. Y. 177; People v. Luscomb, 292 N. Y. 390; People v. Florio, 301 N. Y. 46; People v. De Groat, 5 A D 2d 927; People v. Adler, 272 App. Div. 1032; State v. Mitchell, 54 Kan. 516; People v. Cosad, 253 App. Div. 104.) II. If defendant committed any crime, it was rape. The third count should have been dismissed. (People v. Lindloff, 259 App. Div. 749.) III. Complainant’s testimony required corroboration. The court’s instruction to the contrary was reversible error. (People v. Porcaro, 6 N Y 2d 248; People v. Oyola, 6 N Y 2d 259; People v. Gibson, 232 N. Y. 458; People v. Masse, 5 N Y 2d 217; People v. Farone, 308 N. Y. 305.) IV. The cross-examination deprived defendant Lo Verde of a fair trial. (People v. Webster, 139 N. Y. 73; People v. Sorge, 301 N. Y. 198.) V. The District Attorney’s cross-examination of both defendants was highly prejudicial. VI. The trial court committed reversible error in the exclusion of testimony.

      Julian Hanley, District Attorney, for respondent.
    I. There was no merger of the counts in the indictment. (People v. Adler, 272 App. Div. 1032; People v. Luscomb, 292 N. Y. 390; People v. Tavormina, 257 N. Y. 84.) II. No corroboration is necessary for the misdemeanor charge and the court properly refused to dismiss the third counts. (People v. Phillips, 204 App. Div. 112, 235 N. Y. 579; State v. Hatfield, 75 Iowa 592; People v. Porcaro, 6 N Y 2d 248; People v. Oyola, 6 N Y 2d 259; People v. Fagan, 163 Misc 495; People v. Chimino, 270 App. Div. 114, 296 N. Y. 554; People v. Manwaring, 3 A D 2d 952; People v. De Groat, 5 A D 2d 1045; People v. Jones, 177 Misc. 922.) III. Cross-examination of defendants was proper. (People v. Sorge, 301 N. Y. 198; People v. Webster, 139 N. Y. 73.) IV. The trial court’s exclusion of testimony was proper.
   Froessel, J.

Defendant was indicted on three separate counts: (1) first degree rape (Penal Law, § 2010); (2) assault with intent to commit rape (Penal Law, § 242), and (3) endangering the health and morals of a 15-year-old minor (Penal Law, § 483). He was acquitted of the first degree rape charge. The assault count was dismissed on consent at the close of the People’s case. He was found guilty on the third count.

That third count charged defendant with causing and permitting said minor “to be placed in such a situation that her morals were likely to be impaired, in that said defendant did then and there perpetrate an act of sexual intercourse with said child” (emphasis supplied). The crime thus charged necessarily amounted to a misdemeanor rape since defendant was under 21 and the complainant under 18 years of age (Penal Law, § 2010 [last paragraph]). Were we to hold that no corroboration was necessary to support the conviction of the crime as charged in this indictment, then a prosecutor might easily circumvent the requirement of corroboration necessary for a conviction of misdemeanor rape simply by charging instead the impairment of the morals of a minor, as he did here. The law may not be so circumvented. Inasmuch as the jury was erroneously instructed that no corroboration was necessary, the judgment of conviction must be reversed and a new trial ordered.

Burke, J.

(dissenting). We find that the trial court did not err in charging the jury that corroborative evidence was unnecessary in order to convict Lo Verde of endangering the health or morals of the complainant. Lo Verde was not indicted for a defilement or misdemeanor rape. He was indicted on separate counts for rape, first degree, for assault with intent to commit rape, and for endangering the health and morals of a child. It is these crimes which are set forth in the indictment, which govern the essential matter of proof. But the same act or acts may be proof of different crimes described under different sections of the Penal Law.

In People v. Florio (301 N. Y. 46, 52) the court said: “ There are many occasions in the criminal law where the same act constitutes different crimes and is punishable in different ways, but no one would claim that prosecution may not be had for either or both depending on the facts presented and found by a jury ’ ’. Furthermore, ‘ ‘ the State may proceed under a general statute even though a more specific one is available. A specific statute does not necessarily replace a more general statute, and does not become the exclusive method of prosecution.” (People v. Hines, 284 N. Y. 93, 105; see, also, People v. Bord, 243 N. Y. 595.)

We find nothing in the Penal Law that precludes prosecution of a defendant for endangering the morals of a child where the complainant testifies to an act of sexual intercourse. It is anomalous to ascribe an intent to the Legislature to allow a defendant to frustrate a prosecution for the impairment of the morals of a •minor on the grounds that unless he is convicted of rape he must go free when it may be impossible to legally convict him of such a crime.

It is clear that the provisions of the statute dealing with the crime of endangering the health or morals of a child (Penal Law, § 483) do not limit the kind of conduct that might be deemed to result in an impairment of the morals of a minor. On the other hand, the provisions of the statute dealing with the carnal abuse of children over 10 years of age allow prosecution for any act amounting to carnal abuse except an act of intercourse (Penal Law, § 483-b). To state that the section of the Penal Law under which the conviction was found here likewise forbids prosecution for an act of intercourse, we would have to hold that the Legislature so intended, although they did not expressly so limit it. Such a construction is not justified. If the Legislature intended such a construction they would have so expressed it as they did in the amended companion section.

Since we are not at liberty to amend section 483 to conform with section 483-b of the Penal Law, sexual intercourse obviously should be considered conduct that might impair the morals of a minor.

In connection with the theory of defendant-appellant which relies on the so-called doctrine of merger, viz.: the rule that if indicted for a misdemeanor and, on the trial, the evidence clearly established the commission of a felony, the indictment would be dismissed in order that the defendant could be prosecuted for the felony — it is enough to note that this rule is not now the law of New York (People v. Tavormina, 257 N. Y. 84, 94; People v. Chimino, 270 App. Div. 114, affd. 296 N. Y. 554; People v. De Groat, 5 N Y 2d 947).

To illustrate that rape and endangering the health and morals are not degrees of the same crime, but are separate offenses which must be set forth in separate counts in an indictment, even though an act of intercourse may be the basis of the accusations, we need only consider a case where a jury acquits a defendant indicted solely for first degree rape. In that event the jury may not return a verdict of guilty for either rape, second degree, misdemeanor rape or impairment (People v. Burch, 281 App. Div. 348). The acquittal of the rape charge here, therefore, did not prevent the jury from returning a verdict on the impairment count.

In regard to the defendant’s argument that the act committed amounted to a “ defilement”, it is interesting to observe that, unlike the crimes of rape, murder, and other crimes, the words 1 ‘ defile ’ ’ and ‘ defilement ’ ’ have no specific statutory definition in this State, although they appear in sections 2013, 70 and 1454 of the Penal Law.

We must concern ourselves not with a general everyday definition of the word defilement ” but rather with a specific criminal definition, because no act may be considered criminal unless made so by the Legislature. (People v. Blanchard, 288 N. Y. 145, 148; Penal Law, § 22.)

If the word ‘ ‘ defilement ’ ’ has any meaning it must be found within the bounds of sections 70 and 1454 of the Penal Law, or the sections of the statutes they supplant.

Section 70 states that “ A person who * * * 3. Takes or detains a female unlawfully against her will, with the intent to compel her, by force, menace or duress, to marry him, or to marry any other person, or to be defiled * * * Is guilty of abduction ’ ’.

Section 1454 states: “A person who by force, menace or duress, compels a woman against her will to marry him, or to marry any other person, or to be defiled” commits the crime of compulsory marriage.

The present section 70 (subd. 3) appeared verbatim in section 282 (subd. 3) of the Penal Code of 1884. Section 1454 was section 281 of the Penal Code. Section 283 of the Penal Code, the forerunner of the present section 2013, required corroboration for the crimes of “ abduction, compulsory marriage, or defilement”. Rape was then defined as a separate crime in section 278 of the code and the requirement for corroborative evidence was not added to section 283 until 1886.

Prior to 1884 section 282 of the Penal Code (abduction) punished in subdivision 1 the taking of a female for the purposes of prostitution or sexual intercourse without the consent of either her parents or guardians. Subdivision 2 forbade the enticement of an unmarried female to a house of assignation for the purposes of prostitution or sexual intercourse. Subdivision 3 prohibited the taking of a female against her will for the purpose to compel her to marry someone or to be defiled.

It is clear then that the forcible taking of a female for illicit purposes could only be prosecuted under subdivision 3 when the parents approved or assented to this conduct.

In 1884 section 282 of the code was revised (L. 1884, ch. 46, § 2, p. 44) to read as follows: “1. Takes a female under the age of sixteen years for the purpose of prostitution or sexual intercourse, or without the consent of * * * [parents], guardian or other person having legal charge of her person, for the purpose of marriage ”. Subdivision 4 was added prohibiting parents or guardians from consenting to such conduct.

“ The result of this change was not only that the consent of a parent was no longer a defense to a charge of talcing a female for the purpose of prostitution or sexual intercourse [under subd. 1], but that the parent in so consenting was himself equally guilty of the crime. * * * This completed the evolution which changed the crime from one in which the primary interest, originally one of property or inheritance, became the protection of the parent’s interest in his children, and finally shifted the emphasis to the protection of the girls themselves ”. (N. Y. Legis. Doc., 1937, No. 65 [0], pp. 62-63; 1937 Report of N. Y. Law Rev. Comm., pp. 460-461.)

It is obvious that the only difference in the crime of compulsory marriage either under the code (§ 281) or Penal Law (§ 1454) and the crime of abduction under the code (§ 282, subd. 3) or Penal Law (§ 70, subd. 3) is that the latter makes criminal the unlawful taking accompanied with the specific intent while the former punishes the unlawful taking when the crime has been accomplished.

In the case of Schnicker v. People (88 N. Y. 192) the defendant Dora Schnicker, a female, was convicted under the Revised Statutes (pt. IV, ch. I, tit. Ill, art. 2, § 25) (2 Rev. Stat. 664) — the predecessor of section 281 of the 1881 Penal Code (compulsory marriage) —of taking the complainant unlawfully and forcing her to be defiled in that the complainant was compelled to remain in a house of ill repute and to submit to an unknown male. Thereafter in 1906 the Legislature enacted specific statutes (Penal Code, §§ -282-a, 282-b) explicitly covering the problem of compelled prostitution (L. 1906, ch. 413; L. 1906, ch. 138).

It would appear, therefore, both from legislative history and judicial construction, that the defilement presently referred to in section 2013 pertains to those crimes where either a male or female takes a female against her will and intends or accomplishes a forced marriage or forced intercourse with another male. (See, also, N. Y. Legis. Doc., 1937, No. 65[0], pp. 58-75; 1937 Report of N. Y. Law. Rev. Comm., pp. 456-473.)

The crime of defilement patently involves something more than the mere act of intercourse between two unmarried people because if this was not the case then we should say that the penal provisions relating to rape, adultery and seduction are superfluous. It would also mean we should hold that it was unnecessary for the Legislature in 1886 to include the crime of rape in section 283 of the code, as well as find that the specific sections of the Penal Law requiring corroboration for adultery (§ 103), compulsory prostitution of women (§ 2460, subd. 9) are likewise unnecessary. This, of course, we may not do.

We conclude, therefore, that the defendant was neither indicted for nor convicted of a defilement or misdemeanor rape within the meaning of section 2013 of the Penal Law and that section is accordingly inapplicable in this case.

We have held that, absent a specific statute mandating corroborative evidence, the sole testimony of a complainant, if believed, may be sufficient to support convictions for the crimes of assault with intent to commit rape (People v. Chimino, 270 App. Div. 114, affd. 296 N. Y. 554, supra; People v. De Groat, 5 A D 2d 1045, affd. 5 N Y 2d 947, supra), attempted rape (People v. Phillips, 204 App. Div. 112, affd. on other grounds 235 N. Y. 579; People v. Fagan, 163 Misc. 495), incest (People v. Gibson, 301 N. Y. 244), and sodomy (People v. Weinberger, 2 N Y 2d 892).

There is no statute requiring corroborative evidence in order to support a conviction under section 483 of the Penal Law nor has such requirement been made a rule of law by this court. People v. Porcaro (6 N Y 2d 248) and People v. Oyola (6 N Y 2d 259) held that the evidence there adduced was insufficient as a matter of law to sustain the convictions.

The affirmed finding of guilt herein is supported by sufficient evidence and is, therefore, conclusive upon this court (1ST. Y. Const., art. VI, § 7). The judgment of conviction should be affirmed.

Chief Judge Conway and Judges Fulo and Van Vooehis concur with Judge Feoessel; Judge Desmond concurs for reversal for the reasons given by Judge Feoessel, and for the further reason that this was clearly a conviction for ‘1 defilement ” within the meaning of section 2013 of the Penal Law (see Beyer v. People, 86 N. Y. 369, 371; Schicker v. People, 88 N. Y. 192, 194; State v. Besares, 75 Utah 141); Judge Bubke dissents in an opinion in which Judge Dye concurs.

Judgment reversed, etc.


author: Burke, J.

text:
    In the Matter of the Claim of Carl Weyzk, Also Known as Carl Stephens, Claimant-Respondent, against Town of Stafford et al., Respondents, and Special Fund for Reopened Cases Under Section 25-a, Appellant. Workmen’s Compensation Board, Respondent.
    Argued October 13, 1959;
    decided December 30, 1959.

      John M. Cullen for appellant.
    The decision of the Workmen’s Compensation Board discharging the Special Fund for Reopened Cases from liability was proper and its reversal by the Appellate Division is in error. (Matter of Primus v. Continental Forge & Tool Co., 7 A D 2d 178; Matter of Rainer v. Modern Mfg. Co., 265 App. Div. 1023; Matter of Sayres v. Feine & Sons Co., 283 App. Div. 547; Matter of Cretalla v. New York Dock Co.,_ 289 N. Y. 254; Commissioner of State Ins. Fund v. Pokiok, 11 Misc 2d 1084; Matter of Herring v. Great Kills Moving & Stor., 7 A D 2d 797.)

      Paul D. Williams and Kurt Weissheimer for Town of Stafford and others, respondents.
    The decision of the Appellate Division in reversing the decision of the Workmen’s Compensation Board as arbitrary, capricious and contrary to law. when it established an $8 per week rate for the spread of the 1942 lump settlement is proper. (Matter of Likepities v. Donner Steel Co., 278 App. Div. 443; Matter of Sayres v. Feine & Sons Co., 283 App. Div. 547; Matter of Courteau v. Buffalo Flour Mills, 1 A D 2d 714; Sokolowski v. Bank of America, 261 N. Y. 57; Matter of Crowley v. Arrowhead Mills, 252 App. Div. 299; Matter of Rainer v. Modern Mfg. Co., 265 App. Div. 1023; Matter of Cretella v. New York Dock Co., 289 N. Y. 254; Commissioner of State Ins. Fund v. Pokiok, 11 Misc 2d 1084; Matter of Herring v. Great Kills Moving & Stor., 7 A D 2d 797; King v. Western Elec., 122 N. J. L. 442; Matter of Primus v. Continental Forge & Tool Co., 7 A D 2d 178.)
   Burke, J.

The Special Fund for Reopened Cases takes issue with the method followed by the Appellate Division in determining the disability rate appropriate to the claim for compensation filed by the respondent, and the manner in which the adopted rate was applied against a lump sum settlement of the claim, on the ground that the procedure used is in conflict with the provisions of subdivision 7 of section 25-a of the Workmen’s Compensation Law.

Insofar as it is pertinent on this appeal, subdivision 7 of section 25-a reads as follows: where the case is disposed of by the payment of a lump sum, the date of last payment for the purpose of this section shall be considered as the date to which the amount paid in the lump sum settlement would extend if the award had been made on the date the lump sum payment was approved at the maximum compensation rate which is warranted by the employee’s earning capacity as determined by the board under section fifteen of this chapter.”

The case is the sequel of an accident which occurred in 1940. The claimant, a farmer who was the owner and operator of a 60-acre farm, fell from a snowplow. He was employed only during the winter months.

The claimant’s average weekly wage as the extra man on a snowplow before the accident was $13.85. The case was closed out on April 27, 1942 with a lump sum award as a settlement in the amount of $3,000. At the same time an award of compensation was made to the claimant at the weekly rate of $9.23 for disability from the date of the accident to the date of the hearing. A medical finding was made at that time that the claimant, a part-time worker, was only partially disabled.

Pursuant to claimant’s application of May 4, 1954, requesting a reopening of his claim for further consideration, the board again restored the case to the calendar and held that at an $8 rate for partial disability the lump sum settlement would not be exhausted for 375 weeks, or late in 1954. Hence the Special Fund for Reopened Cases was discharged from responsibility.

The carrier contends and the court below has held that the Special Fund is liable because the rate applied in computing the extension of the lump sum should have been the established $9.23 disability rate, rather than the $8 disability rate used by the board, and that a lump sum settlement cannot be extended indefinitely by excluding weeks during which the claimant worked at pre-injury wages.

We have decided that the Workmen’s Compensation Board’s determination discharging the Special Fund for Reopened Cases from liability was proper.

The statute requires the board to spread the lump sum settlement at the rate applicable to the disability found at the time of the approval of the lump sum settlement by the Referee. (See Matter of Courteau v. Buffalo Flour Mills, 1 A D 2d 714.) In short, it is the status of the disability, not the amount of the award that controls.

In this case the claimant was only entitled to the rate applicable to the type of disability found without regard to the rate which might have been awarded. The statute in terms refers to ‘ ‘ the maximum compensation rate which is warranted by the employee’s earning capacity as determined by the board”. It is beyond dispute that an award of $9.23 a week on a weekly salary of $13.85 is at the rate established by the statute for a claimant who was totally disabled. Where a partial disability was found the rate could only be reduced to the minimum amount then permitted by law, i.e. $8 a week. Therefore, since the claimant was found to be a part-time partially disabled employee, the award of $9.23, i.e., the rate for total disability, was not warranted by the employee’s earning capacity as found by the board.

Since the carrier has conceded that if the $8 rate was properly established the Special Fund should be discharged from liability, it is not necessary to turn to the controversy concerning the legality of excluding the weeks during which the claimant worked at pre-injury wages in projecting the spread of the lump sum settlement at the weekly disability rate.

As the rate established by the board was in accord with the formula defined by the statute governing the extension of lump sum settlements, the order of the Appellate Division should be reversed and the award of the Workmen’s Compensation Board reinstated, with costs.

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

Order reversed and award of the Workmen’s Compensation Board reinstated, with costs in this court and in the Appellate Division to the Special Fund for Reopened Cases against respondents employer and carrier.


author: Per Curiam.

text:
    The People of the State of New York, Respondent, v. Joseph P. Alvich, Jr., Appellant.
    Argued November 19, 1959;
    decided December 30, 1959.

      Harris B. Steinberg and J. Raymond McGovern for appellant.
    I. It was prejudicial error to set aside the original suspended sentence over defendant’s objection. (Lee v. Brooklyn Union Pub. Co., 209 N. Y. 245; Matter of Rudd v. Hazard, 266 N. Y. 302; Matter of United Press Assns. v. Valente, 308 N. Y. 71.) II. Either branch of the statutory requirement for a psychiatric examination and report — that contained in section 2188 or that contained in section 2189-a — may be waived by the party sought to be protected thereby. (Leary v. United States, 268 F. 2d 623; People v. Spry, 5 A D 2d 835; People v. Doria, 280 App. Div. 1027; State v. Culver, 40 N. J. Super. 427; People v. Thompson, 251 N. Y. 428..) III. Both the prosecutor, on behalf of the public, and defendant, by his attorney, waived the respective protections afforded them by the statutes. (Patton v. United States, 281 U. S. 276; Adams v. United States ex rel. McCann, 317 U. S. 269; People ex rel. Sedotto v. Jackson, 307 N. Y. 291.) IV. Actually, there was substantial compliance with the purpose of sections 2188 and 2189-a, even though the forms were not precisely adhered to. V. The new sentence amounted to an illegal circumvention of defendant’s rights to a hearing and determination of the charge of violation of probation. (People v. Oskroba, 305 N. Y. 113; Escoe v. Zerbst, 295 U. S. 490; People ex rel. Benacquista v. Blanchard, 267 App. Div. 663; Matter of Juliane v. Chemung County Ct., 282 App. Div. 822; People v. Valle, 7 Misc 2d 125; People ex rel. Goldberg v. Sheriff of Suffolk County, 206 Misc. 820; People v. Eames, 204 Misc. 798; People ex rel. Stumpf v. Craig, 79 Misc. 98.) VI. Sentence cannot now be imposed on defendant, and his release is required. The judgment and sentence having been set aside, there remained no conviction on which a new sentence could be imposed. (People v. Farina, 2 A D 2d 776, 2 N Y 2d 454; People ex rel. Hunt v. McDonnell, 201 Misc. 406, 279 App. Div. 923.) VII.. Imposition of sentence now would involve double jeopardy. (People ex rel. Ostwald v. Craver, 272 App. Div. 181; People ex rel. Jimerson v. Freiberg, 137 Misc. 314.)

      John C. Marbach, Special District Attorney, for respondent.
    I. The order of the court vacating the original judgment and sentence was proper. II. Statutory sentencing provisions could not be waived by this defendant. (Johnson v. Zerbst, 304 U. S. 458; People v. Jelke, 308 N. Y. 56; Matter of United Press Assns. v. Valente, 308 N. Y. 71; Matter of Grae, 282 N. Y. 428; People v. La Barbera, 274 N. Y. 339; Davison v. Klaess, 280 N. Y. 252; People ex rel. Battista v. Christian, 249 N. Y. 314; Hibdon v. United States, 204 F. 2d 834; People ex rel. Rainone v. Murphy, 1 N Y 2d 367.) III. Neither party waived the provisions of the statute. (Bute v. Illinois, 333 U. S. 640; Carter v. Illinois, 329 U. S. 173; Alsens Amer. Portland Cement Works v. Degnon Contr. Co., 222 N. Y. 34; People v. La Barbera, 274 N. Y. 339.) IV. There was no substantial compliance with the requirements for formal psychiatric examination. (People v. Esposito, 287 N. Y. 389.) V. There was no avoidance of defendant’s claimed right to be heard on the charge of violation of probation. (People v. Eames, 204 Misc. 798.) VI. The judgment appealed from was properly made by the trial court. (People v. Cioffi, 1 N Y 2d 70; People v. Farina, 2 A D 2d 776, 2 N Y 2d 454; People ex rel. Sedotto v. Jackson, 307 N. Y. 291; Bozza v. United States, 330 U. S. 160; Ex Parte Karstendick, 93 U. S. 396.)
   Per Curiam.

The defendant Alvich, convicted on a plea of guilty, was given a suspended sentence, placed on ‘ ‘ Indefinite Probation ” and required to undergo psychiatric treatment. More than a year later, the court, upon motion of the prosecutor, vacated the judgment, on the ground that the requirements of section 2189-a of the Penal Law had not been met and thereafter, in place of the original judgment, rendered a new one ordering the defendant’s imprisonment for a term of from two to four years.

Section 2189-a, enacted in 1950 after long and serious consideration of the problem of sex offenders, embodies a considered legislative policy in regard to the procedure to be adopted in sentencing such persons (see Report on Study of 102 Sex Offenders at Sing Sing Prison, in Public Papers of Thomas E. Dewey, 1950, pp. 162-229), and there can be no doubt that, insofar as it prescribes a psychiatric examination and a written report thereof prior to the imposition of sentence, the section mandates the procedure to be followed. But that does not mean that every departure from its provisions will deprive a court of jurisdiction to impose sentence. In the case before us, while the court may not have followed the strict letter of the statute in all its details, there was substantial compliance with its essential requirements. In short, the court had jurisdiction to render the original judgment and impose a suspended sentence and, that being so, it necessarily follows that the court was without power thereafter to treat that judgment as void and provide for a new and different sentence.

In the view which we have thus taken, we do not reach, and find it unnecessary to treat, the question whether the requirements of section 2189-a may be waived by either the defense or the prosecution.

The judgment of the Appellate Division should be reversed and the original judgment suspending* the defendant’s sentence reinstated.

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

Judgment reversed, etc.


author: Desmond, J. Chief Judge Conway

text:
    Nathan Baidach, Respondent, v. Charles A. Togut, Doing Business as Linden General Hospital, Appellant; Henry Bloomberg, Respondent, et al., Defendants.
    Argued October 15, 1959;
    decided December 30, 1959.

      John M. Johnston and Casper B. Ughetta for appellant.
    I. Plaintiff established a prima facie case; that is, that the proximate and primary cause of plaintiff’s injury was the negligence of Dr. Bloomberg in directing a practical nurse to administer the levophed, in failing to warn the practical nurse of the danger inherent in the use of levophed, in failing to discuss its use with the resident physician, and in failing to prescribe the rate of flow or method of its administration. II. The verdict of the court was proper under the court’s charge which became the law of the case. (Brown v. Du Frey, 1 N Y 2d 190; Buckin v. Long Is. R. R. Co., 286 N. Y. 146; Swensson v. New York, Albany Desp. Co., 309 N. Y. 497.) III. The doctor’s conduct constituted an abandonment of his patient which the jury could find was a proximate cause of his injury. (Meiselman v. Crown Heights Hosp., 285 N. Y. 389.) IV. The judgment insofar as it reversed the judgment against defendant Dr. Bloomberg should be reversed and judgment directed to be entered against Dr. Bloomberg. (Betzag v. Gulf Oil Corp., 298 N. Y. 358.) V. Respondent’s contention that appellant is not a “ party aggrieved ” is unsound. (Epstein v. National Transp. Co., 287 N. Y. 456; Jones v. H. Freedman, Inc., 249 App. Div. 710; Kalinowski v. Ryerson & Son, 266 N. Y. 608.)

      Harold Shapero and Bart Ingraham for Henry Bloomberg, respondent.
    I. Appellant has no right to appeal from the judgment of the Appellate Division insofar as it reverses the judgment of the trial court against codefendant Bloomberg because appellant is not a ‘ ‘ party aggrieved ’ ’ within the terms of section 557 of the Civil Practice Act. (Ward v. Iroquois Gas Corp., 258 N. Y. 124; Sobieski v. Mercedes Benz Co., 260 N. Y. 684; Bensaude v. Flomarcy Co., 293 N. Y. 656; Nekris v. Yellen, 302 N. Y. 626; Price v. Ryan, 255 N. Y. 16; Epstein v. National Transp. Co., 287 N. Y. 456; Kalinowski v. Ryerson & Son, 266 N. Y. 608.) II. The record clearly established that appellant’s resident knew that the order was directed to him, and not to nurse Levine, to start the levophed. IIP. Plaintiff failed to meet his burden of establishing that Dr. Bloomberg deviated from the practice generally employed. (Richardson v. Denneen, 192 Misc. 871, 274 App. Div. 878; Blackburn v. Baker, 227 App. Div. 588.) IV. According to the undisputed evidence, it was the duty of the special nurse and the house physician to check the arm and hand for possible infiltration. V. The proximate cause of the injury to plaintiff was the failure to check the infusion unit and plaintiff’s right arm and hand. VI. Plaintiff did not establish abandonment; the alleged abandonment was not the proximate cause of plaintiff’s injury.
   Desmond, J.

Since appellant Togut has no right of contribution against Bloomberg, Togut is not aggrieved by the dismissal of the complaint as to Bloomberg and, accordingly, has no right to appeal here as against Bloomberg. The $17,500 judgment which Togut paid was, when he paid it, a judgment against Togut alone, since the complaint as against Bloomberg had already been dismissed and Bloomberg was not a judgment debtor in any sense or for any purpose. Togut by paying a judgment which stood against himself alone could under no possible theory acquire any right of contribution against Bloomberg who had been dismissed out of the case.

The only legal basis in New York for any contribution between tort-feasors is section 211-a of the Civil Practice Act which neither in words nor in adjudged meaning can have any application to Togut’s situation. That statute sets these plain, simple requirements for contribution: ‘ Where a money judgment has been recovered jointly against two or more defendants in an action for a personal injury * * * and such judgment has been paid in part or in full by one or more of such defendants, each defendant who has paid more than his own pro rata share shall be entitled to contribution from the other defendants ”. Again and again this court has held that this clear statute means just what it says and that all its requirements must be met. As we pointed out in Ward v. Iroquois Gas Corp. (258 N. Y. 124, 128): “Section 211-a was enacted to change the common-law rule and permit contribution where a money judgment has been recovered jointly against two or more joint tort feasors, and paid1 in part or in full ’ by one or more defendants. ’ ’ The Ward opinion remarks “ the clear wording of the section ”. It makes it entirely plain that before section 211-a comes into play there must be payment by one judgment debtor of a judgment outstanding against him and others. There was no such judgment in this case at the time Togut paid.

Our most recent construction of section 211-a is found in McFall v. Compagnie Maritime Belge (304 N. Y. 314, 328): “ The common-law rule denying contribution to joint tort-feasors has been partially abrogated in this State by the enactment of section 211-a of the Civil Practice Act which authorizes contribution if two conditions exist: (1) a joint money judgment against the tort-feasors, and (2) the payment by one tort-feasor of more than his prorata share thereof. (Fox v. Western New York Motor Lines, 257 N. Y. 305, supra.) ” Numerous decisions attest to this. “ Only judgments can be considered” (United States Fid. & Guar. Co. v. Hotkins, 8 Misc 2d 296, 302; see Birchall v. Clemons Realty Co., 241 App. Div. 286, 288). “ A joint judgment is a condition precedent to the right to contribution ” (Haines v. Bero Eng. Constr. Corp., 230 App. Div. 332, 334; see Twelfth Annual Report of N. Y. Judicial Council, 1946, p. 217).

Epstein v. National Transp. Co. (287 N. Y. 456) does not affect our case. In Epstein, the judgment was outstanding against the three defendants at the time defendant National paid it. The Epstein opinion, also, pointed out that at common law there was no contribution between tort-feasors and that the right to contribution depended on the pressure of specific statutory conditions. Section 211-a was described (p. 458) as a statute ‘ ‘ which permits contribution where a money judgment has been recovered jointly against one or more joint tort feasors and has been paid by one, either in part or in full.”

I see no reason for stretching section 211-a to cover a situation not within its scope. Each of several tort-feasors, being severally a wrongdoer, is liable for the payment of the whole claim. The injured person can sue any one wrongdoer and collect in full from him (Neenan v. Woodside Astoria Transp. Co., 261 N. Y. 159, 164) or sue several and collect from one, and at common law that was the end of it. As to one particular carefully spelled out set of facts, the Legislature changed the common law and authorized contribution. We have no such facts here.

The appeal should be dismissed, with costs.

Chief Judge Conway

(dissenting). This is an action for medical malpractice. The plaintiff, Nathan Baidach, instituted suit against Charles Togut, doing business as Linden General Hospital; Henry Bloomberg, a surgeon; and a number of other defendants against whom the action was later abandoned. It appears that plaintiff, while a patient in Togut’s hospital, sustained injuries following a prostatectomy performed by Dr. Bloomberg, a urology specialist. It further appears that the injuries resulted from a transfusion which contained a drug called “levophed.” Such drug is destructive of certain body tissue when brought into direct contact with it. Patient Baidach was receiving the drug intravenously when, sometime on the morning of September 5, 1956, it infiltrated the tissues of his right arm and hand, either because the needle was not properly placed or because, although properly inserted initially, it was not kept in a proper position.

After trial, plaintiff recovered a verdict of $22,500 against Togut and Dr. Bloomberg and a joint judgment was entered thereon. The Appellate Division reversed ‘ ‘ upon the law ’ ’ and dismissed the complaint as to Dr. Bloomberg. As to Togut, the Appellate Division reversed and ordered a new trial unless plaintiff agreed to stipulate to accept a reduction of damages to $17,500, which the plaintiff did. Thereafter, Togut paid the full sum of $17,500 and abandoned his appeal to this court as against plaintiff by failing to argue that the Appellate Division erred insofar as it authorized plaintiff’s recovery against him. In effect, Togut has conceded his liability to the plaintiff. His only interest now is in receiving contribution from Dr. Bloomberg by reason of which he has appealed to us from so much of the Appellate Division determination as dismissed the complaint as against the doctor. The plaintiff, having received payment from Togut of the judgment in the amount of $17,500, which judgment was entered pursuant to the stipulated reduction of damages, has taken no appeal from the dismissal of his complaint against Dr. Bloomberg.

This appeal presents two questions, one procedural and one substantive. The procedural question, which must be treated first, is whether Togut, who complains only of the fact that his codefendant was released from liability by the Appellate Division, is a party aggrieved for purposes of appeal to this court. Obviously he has such status only if the determination of the Appellate Division adversely affected his right of contribution from Dr. Bloomberg.

Section 211-a of the Civil Practice Act provides, in, part, that Where a money judgment has been recovered jointly against two or more defendants in an action for a personal injury or for property damage, and such judgment has been paid in part or in full by one or more of such defendants, each defendant who has paid more than his own pro rata share shall be entitled to contribution from the other defendants with respect to the excess so paid over and above the pro rata share of the defendant or defendants making such payment; * * Thus, the Legislature has prescribed two conditions precedent to contribution between or among joint tort-feasors: (1) that a money judgment be recovered jointly against them and (2) that one (or more) of them has paid more than his prorata share of such judgment.

It is undisputed that had Togut paid the judgment recovered against Dr. Bloomberg and himself prior to the Appellate Division decision he would be a party aggrieved for purposes of appeal to our court. Under that set of facts, he would clearly have met both the conditions precedent to contribution contained in section 211-a. However that may be, defendant Bloomberg argues that Togut is not entitled to contribution, hence, is not a party aggrieved, because the judgment satisfied by Togut was not a “ joint ” judgment, but rather the judgment authorized by the Appellate Division — a judgment against Togut only. Phrased differently, Dr. Bloomberg recognizes that the first condition of section 211-a was met here, namely, that plaintiff recover a money judgment jointly against two or more defendants. His contention, in effect, is that the second condition has not been satisfied, namely, that one or more of the defendants pay more than his prorata share of “such judgment”. Dr. Bloomberg would have us hold that the phrase “such judgment ” must be construed to require a joint tort-feasor to make his payment before an appeal is taken to the Appellate Division if he is to protect himself against a reversal in that court as against another tort-feasor. We fail to perceive the logic in such a construction. Section 211-a was designed to adjust the rights as among joint tort-feasors after the plaintiff has been given his due. Plaintiff here has had his due. There has been a joint judgment against defendants and plaintiff has received full payment and damages for his injuries. If the Appellate Division erred in disturbing the judgment recovered in the trial court, the truly final judgment in the action, when we have corrected the error and if Dr. Bloomberg is ultimately held to have been at fault, there will be the same joint judgment of the same trial court — superseding that entered on the Appellate Division order and itself being deemed the judgment that Togut really satisfied.

The case of Ward v. Iroquois Gas Corp. (258 N. Y. 124), relied upon by Dr. Bloomberg, does not announce a contrary rule. In that case the appealing defendant did not make any payment to the plaintiff and, as we have demonstrated, payment is a condition precedent to contribution.

One other case bears mention on the procedural problem here involved — Epstein v. National Transp. Co. (287 N. Y. 456). There plaintiffs had judgment against several defendants. One of them paid the judgment in full and obtained a default judgment against another for the latter’s contributive share. But the nonpaying defendant had appealed to the Appellate Division in the hope of avoiding liability entirely. The paying defendant moved before that court to be substituted as respondent (the plaintiff having no further interest in the action). The Appellate Division denied the motion, but we reversed and ordered the motion granted, answering in the affirmative the Appellate Division’s certified question as to whether the paying defendant was an interested party under section 557 of the Civil Practice Act ”. If we could find that the paying defendant in the Epstein case was sufficiently “ interested ” to entitle him to be substituted as respondent for plaintiff, a fortiori we must uphold Togut’s status here. The reason is obvious. In the Epstein case the Appellate Division had not reversed as to the nonpaying defendant. If the paying defendant was nonetheless sufficiently interested to oppose an appeal against a codefendant who was not yet let out of liability, Togut here is that much more interested or aggrieved by an order which does purport to dissolve his potential contributor’s liability. Aggrieved ” is the key word in the taking of an appeal (Civ. Prac. Act, § 557), and it defines Togut more accurately than it defined the paying defendant in the Epstein case.

Inasmuch as we are persuaded that Togut is a party aggrieved, we turn to the substantive question in the case, namely, whether Dr. Bloomberg was guilty of malpractice.

The Appellate Division divided 3 to 2 on that issue. The majority held that There was no proof of malpractice or of negligence on his [the doctor’s] part. He had the right to rely upon the competency of the hospital staff, particularly that of the resident physician, to insert the needle properly and to check frequently the intravenous flow after the levophed had been added.”

That statement would apply if the doctor had relied on the ■ resident physician; or if, relying upon other hospital personnel, he had made them cognizant of dangers they could not be expected to appreciate. The evidence, including Dr. Bloom-berg’s own admissions, however, shows that he did not rely upon the resident physician and did not utter a syllable of warning to the practical nurse with whom he spoke by telephone. Nor did he tell the practical nurse (a Mrs. Levine) to have the resident physician administer the levophed or supervise its administration.

Dr. Bloomberg’s own testimony is that he did not caution against levophed’s possible effects, although he admitted knowing that “ It may affect various tissues if it leaks ”; that “ it may cause some necrosis of the tissue ’ ’; and he defined “necrosis” as “destruction of tissue.” Under questioning by the court, he admitted specifically that he knew he was talking “ to a nurse and not a doctor ”. ■

In the event that a drug known to a surgeon to have a destructive potential is to be administered to his patient, the law must be said to impose at least minimum safeguards, and among them is at least a competent instruction or admonition to those upon whom such surgeon chooses to rely.

If Dr. Bloomberg- chose to rely upon the professional abilities of the resident physician, it would have taken only a sentence over the telephone to assure that the latter administered the drug. He had not even to speak directly with the resident; it would have sufficed simply to tell practical nurse Levine to see that the resident administered the drug or supervised its dispensation. He could have done even less than that, consistent with due care. He could simply have told the nurse of the drug’s dangerous potential and instructed her to' make sure that the needle was watched carefully throughout the intravenous operation. The nurse could have done that herself or communicated the instruction to the other practical nurse (one John 0. Fleming) who was in attendance at the patient’s side. It was Mr. Fleming- who administered the levophed, and he was the only one in attendance at that time. Neither the resident physician nor any other doctor or nurse came into the patient’s room after the levophed was started and before Fleming was relieved.

Those facts in themselves establish what seems to us a question ( for a jury. In Volume 41 of American Jurisprudence (Physicians and Surgeons, § 99, p. 215) it is said that: “If the surroundings are those of the modern hospital, with experienced nurses and attendants, the doctor ought to be entitled to take for granted that they will attend to their ordinary customary duties without instruction, although even in such surroundings it is clearly his duty to give instructions which are essential to the safety and well-being of the patient, where there are unusual features in the case or its treatment.”

The destructive potential of a drug like levophed constitutes what must be deemed an “unusual feature”, especially since it is a relatively new drug requiring greater care in administration than other fluids — which facts could not be presumed to be within the knowledge of practical nurses. Even then, we need not say that Dr. Bloomberg could not rely on hospital personnel; but by any criterion the facts warranted at least the verbal admonition that the drug had harmful potential and the needle must be given extra-special attention. Were levophed not there, the needle’s movement would have offered no injury.

The absence of any manner of admonitory instruction seems in itself a ground of malpractice sufficient to submit to a jury. But it is by no means the only matter going to the doctor’s malpractice.

Dr. Meyer Kaplan, a specialist in general surgery and the doctor who referred plaintiff to Dr. Bloomberg, himself testified that it was the custom and practice in New York City in 1956 that a physician be present at the time that levophed is administered. His exact words are: “ My answer is yes, it should be done by a physician only.”

He further testified that the “ skill of a doctor ” is necessary in administering levophed in order ‘ ‘ to adjust the flow of levophed in accordance with the blood pressure ”. As to whether or not reliance should be placed on the house physician when the patient’s condition has become such that levophed is needed (and we repeat here the fact that Dr. Bloomberg did not contact the resident or leave instructions with or for him), Dr. Kaplan testified that in such case: “I would discuss the case quickly with the house surgeon. If the patient’s condition was such as demanded more experienced attention than the house surgeon could give him, I would go myself, or send an associate with sufficient experience whose opinion I could trust.” (Emphasis supplied.)

Dr. Bloomberg left no word at all to summon the house physician to plaintiff’s side, much less make inquiry as to his qualifications or experience in a case like this. In fact, the resident (a Dr. Margolies), had been a doctor for only two years at the time. At 5:00 p.m. on the day of the operation Dr. Margolies noted that the patient’s condition was critical; that he was hemorrhaging; and that at 11:00 p.m. his condition was “ poor.” He tried several times to contact Dr. Bloomberg, who of course remained in charge of the case; Dr. Bloomberg had performed the operation on that day (September 4,1956) between 11:00 a.m. and 1:00 p.m. The first effort by Dr. Margolies to locate Dr. Bloomberg was at about 5:00 p.m. ; he could not get him. He left a message at Dr. Bloomberg’s office. At this juncture we might note that Dr. Bloomberg — the doctor who performed the operation and retained control of the case — did not even leave word as to how he could be contacted if an emergency arose. And plaintiff, on the evening in question, was the most critically ill patient in the hospital. It was not until after 11:00 p.m. that Dr. Bloomberg was contacted personally; it was nurse Levine who reached him. She told him ‘1 that his patient apparently was in a state of post-operative shock and appeared very weak ’ ’. Dr. Bloomberg still did not go to the hospital, although by his own testimony he admitted that he was at home when he received the call; that his home was but 10 minutes from the hospital; and that he did not have “ anything medically ” that he was working on at that moment. As noted, he made no inquiry as to who would be administering the levophed he ordered. He did not prescribe the rate at which the drug should be given.

To add to the foregoing testimony, there was that of a Dr. Murray E. Burton, a specialist in orthopedic surgery and a fellow of the American Academy of Orthopedic Surgeons. He testified that, under the circumstances of the hypothetical question put to him to approximate the situation surrounding the plaintiff, the ordering of levophed by telephone was neither customary nor usual in New York City in 1956. The doctor “ should have gone down to the hospital ”, he said.

We regard it as error for the Appellate Division, in view of the vast evidence of malpractice offered, to have held that as matter of law no malpractice was proved against Dr. Bloomberg.

The judgment of the Appellate Division should be reversed and the case remitted to that court for determination of the questions of fact, without costs to either party.

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

Appeal dismissed.


text:
    The People of the State of New York, Respondent, v. Morris Weiss, Appellant.
    Argued October 14, 1959;
    decided December 30, 1959.

      Donald I. Laventhall, Florence M. Kelley and Jack Adelman for appellant.
    I. The attempted identification of appeUant by Eisikowitz did not constitute corroboration of accompEcés’ testimony under section 399 of the Code of Criminal Procedure. (People v. Crum, 272 N. Y. 348; People v. Feolo, 284 N. Y. 381; People v. Kress, 284 N. Y. 452; People v. Cassidy, 160 App. Div. 651; People v. Goodwin, 242 App. Div. 801.) II. Section 399 requires that the testimony of an accompEce which incriminates defendant — whether he is a prosecution or defense witness — must always be corroborated. (Meltzer v. Koenigsberg, 302 N. Y. 523; Lawrence Constr. Corp. v. State of New York, 293 N. Y. 634; People v. O’Farrell, 175 N. Y. 323; People v. Mullens, 292 N. Y. 408; Johnson v. Zerbst, 304 U. S. 458; People v. Morett, 272 App. Div. 96.)

      Edward S. Silver, District Attorney (William I. Siegel and David Diamond of counsel), for respondent.
    AppeEant’s guilt was estabEshed beyond a reasonable doubt. (People v. Lee, 308 N. Y. 302; People v. Henderson, 298 N. Y. 462; People v. Kress, 284 N. Y. 452; People v. Crum, 272 N. Y. 348; People v. Reddy, 261 N. Y. 479; People v. Dixon, 231 N. Y. 111; People v. Ogle, 104 N. Y. 511; People v. Sweeney, 213 N. Y. 37; People v. Davino, 284 N. Y. 486; People v. Feolo, 284 N. Y. 381.)
   Dye, J.

The question raised on this appeal by permission is whether there was enough corroboration of accomplice testimony to support the judgment of conviction (Code Grim. Pro., § 399).

On May 16, 1954 at 8:00 p.m., a small grocery and fruit store in Brooklyn was looted at gun point. The police were able to apprehend the owner of the get-away car, who confessed to his participation in the holdup and implicated five others including Morris Weiss, the appellant.

At the time of Weiss’ trial four of the men had been convicted and were awaiting sentence, while a fifth remained a fugitive. Two of these men, Lo Castro and Schaum, testified for the People, involving Weiss in the crime; De Blase and McKuhan, who were not called by the Assistant District Attorney, were summoned by the defendant but, contrary to expectations, gave testimony confirming in all material respects the testimony given by Lo Castro and Schaum. Having taken the stand in his own behalf, Weiss proclaimed his innocence and, by way of alibi, explained that sometime prior to the robbery he had left his companions and had gone to a dance hall in Manhattan, where he met a young lady with whom he spent the next several hours. When the young lady testified she confirmed the appellant’s version of his activities at the dance but, unfortunately for him, she had a different version of the time element which was the crucial point. She placed his arrival at approximately 10:00 o ’clock which was much later than the known time of the crime which had been fixed at about 8:00 o’clock. The issue thus narrowed to one of identity.

In that connection, the victim, Mor Eisikowitz, testified that one of the participants in the robbery, who had ordered him to the back of the store and taken his wrist watch, was a “ tall man,” “ taller than I.” He was unable to observe his complexion “ because my attention was not at that ”; nor could he recall the clothing the robber wore or his hair color; but he placed his age at between 30 and 40, and said that ‘ ‘ bis face wasn’t very clean; he wasn’t shaved, and it wasn’t fresh. It had a little already wrinkles.” Also: ‘1 He was thin. It was a drawn face.” “ I saw him, bnt I wouldn’t — I wasn’t able to see him clearly all the features to distinguish him. ” “I couldn’t say with certainty that this is the man.” “I’m not sure a hundred per cent.” “ I believe it’s the man, but I can’t say with certainty, with full certainty.” “I looked at him, but I wouldn’t remember his face because I was frightened.” “I think it’s the same man. ” “It looks to me that this is the man. ’ ’

Appellant contends that Eisikowitz’s testimony was too vague to corroborate that of the accomplices. We do not agree. A jury could reasonably have found, as they did here, that Eisikowitz gave “ such other evidence as tends to connect the defendant with the commission of the crime ”, which is all that section 399 requires. Positive identification is not the minimum standard. It is enough that Eisikowitz, who apparently impressed the jury as honest and sincere, believed Weiss was the robber in question, and offered some examples of physical similarity between Weiss and the participant in the robbery. (Code Crim. Pro., § 399; People v. Feolo, 284 N. Y. 381; People v. Plafh, 100 N. Y. 590; People v. Reddy, 261 N. Y. 479.)

In his charge to the jury the trial court took great pains to instruct them that the statutory test of corroboration was “by such other evidence as tends to connect the defendant with the commission of the crime ” and that it was necessary that such corroborating come from an independent source. The jury were also instructed that they were to look to Eisikowitz’s testimony for the needed corroboration. If they could not conclude that his testimony tended to connect appellant with the crime, they were to find him not guilty. In rendering the verdict they did, the jury must have seen in that testimony a tendency toward connection between appellant and the commission of the crime charged. The basis for their finding was legally sufficient.

In the view thus taken, we do not reach the question whether section 399 of the Code of Criminal Procedure requires corroboration of testimony given by an accomplice called by the defense.

The judgment should be affirmed.

Fboessel, J.

(dissenting). I do not see how we can hold here that there was sufficient corroboration within the meaning of section 399 of the Code of Criminal Procedure. The trial court charged the jury that they could look only to Eisikowitz’s testimoney for corroboration. On the issue of identity, he testified: “ I saw him, but I wouldn’t —I wasn’t able to see him clearly all the features to distinguish him.” “I couldn’t say with certainty that this is the man.” “ I’m not sure a hundred per cent.” I believe it’s the man, but I can’t say with certainty, with full certainty. ” I looked at him, but I wouldn’t remember his face because I was frightened.” “ I think it’s the same man.” “ It looks to me that this is the man.” The only testimony he gave relative to the man’s features was that he was tall, between 30 and 40, had wrinkles in his face, and that his face was thin and drawn. In my opinion, this testimony is insufficient as corroboration to sustain a conviction and sentence of 30 to 60 years in State’s prison (People v. Feolo, 284 N. Y. 381).

I would reverse.

Chief Judge Conway and Judges Desmond, Fuld, Van Voorhis and Burke concur with Judge Dye ; Judge Froessel dissents and votes to reverse in a memorandum.

Judgment affirmed.