text:
    In the Matter of the Arbitration between Acadia Company, Inc., Appellant, and Irving Edlitz, Respondent.
    Submitted January 20, 1960;
    decided February 25, 1960.

      Robert W. Adler and Ruben Schwartz for appellant.
    I. Execution of a written contract providing for arbitration being conceded and existence of a controversy being also conceded, the court must direct arbitration. (Matter of Lipman [Haeuser Shellac Co.], 289 N. Y. 76; Matter of Spectrum Fabrics Corp. [Main St. Fashions], 285 App. Div. 710, 309 N. Y. 709; Matter of Lane [Enclicott Johnson Corp.], 274 App. Div. 833, 299 N. Y. 725; Matter of Behrens [Feuerring], 296 N. Y. 172; Matter of Potoker [Brooklyn Eagle], 286 App. Div. 733, 2 N Y 2d 553; Matter of River Brand Rice Mills v. Latrobe Brewing Co., 305 N. Y. 36.) II. The parties’ relationship was governed by a written contract prescribing arbitration. (Orr v. Doubleday, Page & Co., 223 N. Y. 334; Stern & Co. v. Avedon & Co., 194 App. Div. 433; Adams v. Fitzpatrick, 125 N. Y. 124; Carter v. Bradlee, 245 App. Div. 49; Cammack v. Slattery & Bro., 241 N. Y. 39.)

      Arthur J. Katzman for respondent.
    There was no agreement to arbitrate. (Matter of Princeton Rayon Corp. [Gayley Mill Corp.], 309 N. Y. 13; Matter of Riverdale Fabrics Corp. [Tillinghast-Stiles Co.], 306 N. Y. 288; Matter of Lehman v. Ostrovsky, 264 N. Y. 130; Matter of Level Export Corp. [Wolz, Aiken & Co.], 305 N. Y. 82; Matter of Arthur Philip Export Corp. [Leathertone, Inc.], 275 App. Div. 102; Matter of Writers Guild of America East [Prockter Prods.], 1 N Y 2d 305; Matter of Lipman [Haeuser Shellac Co.], 289 N. Y. 76; Matter of Lane [Endicott Johnson Corp.], 274 App. Div. 833, 299 N. Y. 725; Matter of Potoker [Brooklyn Eagle], 286 App. Div. 733, 2NY2d 553.)
   Per Curiam.

This is an appeal from an order of affirmance by the Appellate Division, First Department, by a divided court, of an order by Special Term which denied appellant’s motion to compel arbitration between the parties and to stay an action in the Municipal Court, Borough of Manhattan.

The essential facts are undisputed. Under a written agreement respondent was employed by appellant for a period from July 22, 1957 to January 22, 1958, and the agreement provided for arbitration of “ any question, difference or controversy [arising] as to the interpretation or performance of any of the foregoing provisions ”. It is conceded that prior to its expiration the contract was orally renewed and respondent’s employment extended six months. Subsequently the employment was terminated and a dispute arose over whether the contract had been breached, and as to wages due thereunder.

Special Term denied the motion on the theory that no binding agreement to arbitrate was created by the oral renewal since the renewal agreement was not reduced to writing (Civ. Prac. Act, § 1449). We reach a different conclusion. By orally renewing the written agreement the parties in effect adopted it as an integral part of the new arrangement, modified only by an extension of the time of employment. No other logical meaning can be attached to the expression oral renewal ”, an expression used by the respondent himself. There was, therefore, a sufficient compliance with section 1449 of the Civil Practice Act, which requires 11 A contract to arbitrate a controversy thereafter arising between the parties must be in writing.” It was not necessary for the parties to prepare a new written agreement since they bound themselves to the old one, nor was it necessary for them to sign a new agreement (Matter of Helen Whiting, Inc. [Trojan Textile Corp.], 307 N. Y. 360-367).

The order should be reversed, with costs in all courts, and the motion granted.

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

Order 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:
Fuld, J.
      Desmond, Oh. J.

license: Public Domain

text:
    The People of the State of New York, Respondent, v. Joseph Tomaselli, Appellant.
    Argued November 23, 1959;
    decided February 25, 1960.

      Joseph P. Carey for appellant.
    I. The Dutchess County Court erred in denying appellant’s motion by writ of error coram nobis without a hearing. (People v. Richetti, 302 N. Y. 290; Matter of Lyons v. Goldstein, 290 N. Y. 19; Matter of Morhous v. New York Supreme Court, 293 N. Y. 131; Mooney v. Holohan, 294 U. S. 103; Palko v. Connecticut, 302 U. S. 319; People v. Langan, 303 N. Y. 474; People v. Lain, 309 N. Y. 291.) II. The decision of the Dutchess County Court denying application of appellant in the instant motion being res judicata because a motion based on similar allegations was denied by said court on the 1st day of August, 1944 is contrary to the well-settled law in this jurisdiction. (American Sur. Co. v. Baldwin, 287 U. S. 156; Burner v. Hevener, 34 W. Va. 774; Chichester v. Cande, 3 Cow. 39; Hall v. Law, 102 U. S. 461; Truesdale v. Farmers’ Loan & T. Co., 67 Minn. 454; Fisk v. Hicks, 29 S. D. 399; Corwith v. State Bank, 11 Wis. 430; Dane v. MacFadden Pubs., 226 App. Div. 815; People v. Gersewits, 294 N. Y. 163, 326 U. S. 687.) III. The motion of appellant in the within proceeding, by writ of error coram nobis for an order vacating the judgment of conviction rendered against him in the Dutchess County Court on the 15th day of February, 1932, should be granted. (Williams v. Kaiser, 323 U. S. 471; People v. McLaughlin, 291 N. Y. 480; Johnson v. Zerbst, 304 U. S. 458; Matter of Bojinoff v. People, 299 N. Y. 145; People v. Markowitz, 119 App. Div. 841, 189 N. Y. 562; People ex rel. Kennedy v. Hunt, 257 App. Div. 1039; Canizio v. New York, 327 U. S. 82; Matter of Sullivan, 126 F. Supp. 564; United States ex rel. Hall v. Ragen, 60 F. Supp. 820; Carter v. Illinois, 329 U. S. 173; Gann v. Gough, 79 F. Supp. 912.)

      Raymond G. Baratta, District Attorney (Eugene F. Frink of counsel), for respondent.
    I. Appellant was properly advised of his right to he represented by counsel, pursuant to section 308 of the Code of Criminal Procedure. (People v. Jones, 1 N Y 2d 665.) II. Appellant was adequately represented hy counsel at all stages of the proceeding. (People v. Varelli, 277 App. Div. 887; People v. Richetti, 276 App. Div. 1091; People v. Barber, 276 App. Div. 1040; United States v. Wight, 176 F. 2d 376; People v. DeBernardo, 199 Misc. 563.) III. Appellant was not entitled to a hearing on his motion for a writ of error coram nobis. (People v. Richetti, 302 N. Y. 290.)
   Fuld, J.

More than 25 years agxr — and in this account we ' accept as true the allegations of the petition for a writ of error coram nobis — Tomaselli, then 16 years old, was indicted by a Dutchess County Grand Jury for the crime of second degree forgery. Although originally represented by a lawyer of his own choosing, who apparently withdrew from the case, the defendant appeared without counsel in the County Court of Dutchess County on February 8, 1932, the date to which the arraignment had been adjourned, and voiced a plea of guilty. The court, declining to accept the plea, assigned a member of the local Bar, then in the courtroom, to represent the defendant and they spoke together for about 10 minutes. During this lawyer-client conference, the defendant alleges, although he was questioned as to his age, his family and his friends, he was not asked about the facts underlying the forgery charged against him. He does, however, acknowledge that he told his lawyer, in answer to the specific question, that he had committed that crime. Then, the defendant’s petition continues, the attorney advised him to plead guilty and, following a colloquy at the bench, between prosecutor and defense counsel and the court, the defendant again entered a plea of guilt. A week later, the defendant, accompanied by the lawyer, appeared for sentence. The attorney spoke on the defendant’s behalf and the court imposed a suspended sentence.

Some months later, the. defendant was convicted of the crime of robbery and, because of the forgery conviction, sentenced as a second felony offender to imprisonment for a term of 30 years, plus an additional 5-year term for being armed. It is to relieve himself of the burden of this second offender punishment that he seeks, by way of coram nobis relief, to vacate the earlier judgment. The Dutchess County Court denied the application without a hearing; the Appellate Division affirmed the resulting order, and the appeal is before us by permission of a judge of this court.

The primary claim advanced by the defendant — and it is the only one which merits discussion — is that he was “ deprived of due process of law ” in that his legal representation “ was so stunted and withered; so deficient and inadequate as to amount to a sham and a mockery of justice ”. He alleges, more particularly, that he was represented in form only, since counsel ‘ ‘ failed to request * * * a postponement of the arraignment and pleading in order that he could have the necessary time to make an independent investigation of the facts of the case; to study the sufficiency and correctness of the law involved; * * * [and] to make categorically certain that his client clearly and fully understood the nature of the charges against him and that any plea which resulted was voluntary and made after being fully informed of the consequences ’ ’. Had he been advised of ‘ the true nature of the charges against him ’ ’, the defendant further asserts, “he would have interposed proper defenses sufficient in law that would have established his innocence ”.

A person, accused of a felony and not represented by a lawyer, has a “ fundamental right ” in this State, and in most other jurisdictions, to have counsel assigned to act for him. (Code Crim. Pro., § 308; see, e.g., People v. Koch, 299 N. Y. 378, 381; People ex rel. Acritelli v. Grout, 87 App. Div. 193, 195-196; see, also, Beaney, The Bight to Counsel in American Courts [1955], pp. 237-239.) Section 308 of our Code provides, in so many words, that, if a defendant “appear for arraignment without counsel, he must be asked if he desire the aid of counsel and if he does the court must assign counsel.” The assignment must, of course, be adequate and effective, for in the eyes of the law an assignment made under such circumstances as to preclude the giving of advice or assistance to the accused is no assignment at all. (See People v. Silverman, 3 N Y 2d 200, 202; People v. McLaughlin, 291 N. Y. 480, 483.) And, it is settled, the court’s failure to fulfill the obligation imposed upon it by statute may also constitute a violation of the duty imposed upon the States by the due process clause of the Fourteenth Amendment. (See, e.g., Powell v. Alabama, 287 U. S. 45, 71.)

Thus, for instance, post-conviction relief may be granted and judgments vacated (1) where a court appointed counsel “ at such a time or under such circumstances as to preclude the giving of effective aid in the preparation and trial of the case ” (Powell v. Alabama, 287 U. S. 45, 71, supra; People v. McLaughlin, 291 N. Y. 480, 483, supra; see, also, Glasser v. United States, 315 U. S. 60, 75-76; People v. Silverman, 3 N Y 2d 200, 202, supra); (2) where, over the protest of the accused, charged with a capital offense, a court appointed an attorney in practice but a short time and totally inexperienced in the criminal law (see, e.g., People v. Blevins, 251 Ill. 381, 388-390; cf. McGuire v. State, 189 Ark. 503, 505); or (3) where a court permitted assigned counsel to continue to act for the defendant after it had become obvious that “ the purported representation by counsel was such as to make the trial a farce and a mockery of justice ”. (United States v. Wight, 176 F. 2d 376, 379; see, also, United States ex rel. Feeley v. Ragen, 166 F. 2d 976, 980; Diggs v. Welch, 148 F. 2d 667, 669, cert, denied 325 U. S. 889; People v. Cox, 12 Ill. 2d 265, 271; State v. Dreher, 137 Mo. 11, 20.)

A reading of the pertinent decisions, including those urged upon us in the defendant’s behalf (see Lanza v. New York State Joint Legis. Comm., 3 N Y 2d 92; People v. Marincic, 2 N Y 2d 181; People v. Cooper, 307 N. Y. 253; People v. McLaughlin, 291 N. Y. 480, supra; Powell v. Alabama, 287 U. S. 45, supra), makes it clear that post-conviction relief is available to a defendant only where it is action on the part of the State, through court, prosecutor or other law enforcement officer, which brought about a denial of effective assistance of counsel or an interference with the defendant’s right to such assistance.

In the case before us, the court did nothing which impinged in the slightest on the defendant’s right to counsel or on his right to the effective assistance of counsel. It did not — as was the situation in People v. Marincic (2 N Y 2d 181, supra) —fail to inform the defendant of his right to the aid of a lawyer or neglect to assign counsel; it did not — as was the situation in People v. McLaughlin (291 N. Y. 480, supra) — force upon the defendant an attorney whom he did not want and then force him to an immediate trial; it did not refuse a request for an adjournment; it did not deny the defendant an opportunity to consult in privacy with counsel; nor did any law enforcement official seek — as was the situation considered in People v. Cooper (307 N. Y. 253, supra) and in the Lawsa case (3 N Y 2d 92, supra) — to intrude upon or interfere with the defendant’s right to confer privately with counsel. The court in the present case appointed a member of the Bar in good standing and had every reason to assume that he would represent the defendant adequately. (See, e.g., United States ex rel. Weber v. Ragen, 176 F. 2d 579, 586; Diggs v. Welch, 148 F. 2d 667, 668, supra.) And the court was likewise fully warranted in concluding that, when the defendant pleaded guilty after a consultation with counsel, the latter had reasonably satisfied himself of the defendant’s guilt.

The circumstance that the attorney advised the plea 10 minutes after he had been assigned does not mean that the representation was perfunctory or ineffectual or a sham, or that the court was bound to treat it as such. The ‘ ‘ time consumed in oral discussion and legal research is not the crucial test of the effectiveness of the assistance of counsel.” (United States v. Wight, 176 F. 2d 376, 379, supra, involving a 15-minute consultation prior to entry of a plea of guilty; cf. United States v. Helwig, 159 F. 2d 616, 618, involving a 1-minute consultation prior to trial before court and jury.) There are, as we all know, cases without number in which a lawyer could properly advise a plea of guilt after a very brief conference with the accused. In the present case, Tomaselli stood indicted for forging and uttering a check. There was nothing complicated or involved about such a charge even for a 16-year-old boy. Did he, the question was, forge some one’s signature to a check or, if he did not himself do so, did he knowingly take a forged check and try to cash it? The trial judge was thoroughly justified in concluding that the lawyer could, after talking to the defendant, advise the best course to be pursued.

The applicable rule may be briefly stated. The court will be deemed to have denied effective representation and assistance of counsel if, and only if, under the circumstances, it was not reasonably likely that the accused could have been adequately advised or aided. If it was reasonably deducible that the essential assistance could have been given, despite the shortness of the consultation period, then, it may not be said that the court denied adequate representation of counsel, even though, in fact, the defendant may not have been adequately or properly represented. In short, there is denial of effective representation of counsel only when the representation given is so patently lacking in competence or adequacy that it becomes the duty of the court to be aware of it and correct it.

Indeed, to hold otherwise would require a rule that a conviction must be vacated solely on the ground that assigned counsel was negligent or otherwise at fault in performing his duty. Although we do not condone or make light of an alleged failure on the part of any lawyer to serve his client adequately, it furnishes no basis either in reason or authority for setting aside a judgment. Since, therefore, the defendant Tomaselli would not be entitled to relief even if the allegations of his petition were to be established, the courts below were justified in denying the application without a hearing. (See, e.g., People v. Brown, 7 N Y 2d 359, also decided today; People v. Altruda, 5 N Y 2d 970; People v. Richetti, 302 N. Y. 290, 296.)

This court has ever acknowledged that coram nobis serves a vital function and that there is a real need to assure to an accused the effective assistance of competent counsel. Full and unstinting recognition of this principle, however, must not lead us to apply an impossible standard or impose on our courts a duty impossible of fulfillment, nor should it lead us to penalize the People solely because of an asserted failure on the part of assigned counsel to represent his client properly. An effective .assignment there must be, but this does not mean that a court, once it has appointed a member of the Bar to act for the defendant, must stand as surety for the proper performance of counsel’s professional duty.

The order appealed from should be affirmed.

Desmond, Oh. J.

(dissenting). The question as to the availability of coram nobis relief because defense counsel lacked skill or judgment may be an interesting one but it is quite irrelevant here. Defendant’s petition, dismissed without a hearing, makes charges much more serious than that. He swears that, when only 16 years old, and appearing for arraignment on a felony charge, he got no more by way of legal advice and representation than a 10-minute conversation with an attorney who was assigned because he happened to be in the courtroom and who never investigated the case but advised defendant to plead guilty. That could not be “ effective representation of competent counsel.” Yet, by affirming here we hold as matter of law that this was the private interview with counsel ” and effective and substantial aid ’ ’ by counsel, to which every defendant is constitutionally entitled.

We said in People v. Marincic (2 N Y 2d 181, 184 [a petty larceny case]) that “ the court must make it clear to a defendant (especially one of tender years) that her right is not only to have counsel if she so wishes but also to have all further proceedings postponed until she shall have consulted with counsel and taken his advice, etc.” In People v. Cooper (307 N. Y. 253, 259) and Lanza v. New York State Joint Legis. Comm. (3 N Y 2d 92, 98) we said that a defendant’s rights include that of private consultation with a lawyer. In People v. McLaughlin (291 N. Y. 480, 483) we announced that no last-minute, peremptory assignment of counsel will serve, especially when made at such a time and under such circumstances as practically to preclude the giving by counsel to prisoner and prisoner to counsel, of effective aid in the preparation of the case.” All these holdings (and others, see Powell v. Alabama, 287 U. S. 45, 53; Spano v. New York, 360 U. S. 315, 326) say that a defendant is entitled to “ effective ” and “ substantial ” aid of counsel, not a mere simulacrum or pretense, not just going through the motions.

Let us agree (for argument’s sake only) that the sole basis for setting aside such a conviction is neglect of duty on the part of the court, not the defaults or derelictions of assigned counsel. The primary duty of furnishing legal advice is certainly on the court and not on some attorney who happens to be in the courtroom. But, taking defendant’s petition as true, the neglect in this case was by court as well as by counsel since it was the court which made the last-minute assignment and permitted a guilty plea to be entered for this youth after a hurried, off-hand chat with a lawyer. The statute (Code Crim. Pro., § 308) says that “ the court must assign counsel ” and the duty is. nondelegable. It cannot be satisfied by ineffective, purely formal assignments and it cannot be transferred by the court to the lawyers although the lawyers have their own responsibilities when they accept such assignments.

In People v. Richetti (302 N. Y. 290, followed in People v. Langan, 303 N. Y. 474, and many other decisions) it is stated that a defendant has a constitutional due-process right to a hearing if Ms coram nobis petition makes allegations which are not disproven by indisputable documentary proof and which, if true, would entitle him to relief. Therefore, by affirming a dismissal of this petition without trial we hold that the constitutional mandate as to aid of counsel was as matter of law not violated by this casual assignment and 10-minute representation. I cannot reconcile this with the basic traditions and concepts of our constitutional law. We seem to back and fill in these matters (see, for instance, People v. Hannigan, 7 N Y 2d 317). We hesitate to apply our own ancient, fundamental and solemnly announced rules. Seventy-five years ago (People ex rel. Burgess v. Risley, 66 How. Prac. 67, 68-69) a New York court declared that: “To give life and effect, therefore, to the provision of the constitution under consideration, it must be held to confer upon the relator every privilege which will make the presence of counsel upon the trial a valuable right ’ ’ and that these privileges are “ demanded by every consideration of humanity ”. Since I am unwilling to retreat from that position, I vote to reverse.

The order should be reversed and the proceeding remitted for a hearing.

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

Order affirmed.

      . Suppose the interval between assignment o£ counsel and entry of the plea was 10 weeks instead of, as in the case before us, 10 minutes, and suppose, further, that the defendant claims that he spoke to the lawyer for only 10 minutes and that that was the full measure of time and attention which counsel gave to the case. The “ adequacy ” of the representation would be the same in the 10-week case as in the 10-minute case. However, no one, we suggest, could reasonably claim, where the attorney had been in the case for 10 weeks, that a plea could be set aside and a conviction vacated on a showing that he spent “ too little ” time with his client or asked him the wrong questions.


author: Fuld, J. Desmond, Oh. J.

text:
    The People of the State of New York, Respondent, v. Clarence Brown, Appellant.
    Argued October 21,1959;
    decided February 25, 1960.

      Richard E. Bolton for appellant.
    The denial of defendant’s petition without a hearing constituted error, and the order appealed from should be reversed and the matter remanded to the Court of General Sessions, New York County, for a hearing on said motion. (People v. Picciotti, 4 N Y 2d 340; People v. Richetti, 302 N. Y. 290; People v. Langan, 303 N. Y. 474; People v. Riley, 191 Misc. 888; People v. Fielding, 158 N. Y. 542; Berger v. United States, 295 U. S. 78.)

      Frank S. Hogan, District Attorney (Peter R. Rosenblatt and Charles W. Manning of counsel), for respondent.
    The motion was properly denied without a hearing. (Hayman v. United States, 187 F. 2d 456; People v. Girardi, 2 A D 2d 701; People v. Frey, 286 App. Div. 996; People v. Moore, 284 App. Div. 925; People v. Rodriguez, 283 App. Div. 790; People v. Turman, 279 App. Div. 983; United States v. Wight, 176 F. 2d 376; United States ex reL Feeley v. Ragen, 166 F. 2d 976; Diggs v. Welch,
      148 F. 2d 667, 325 U. S. 889; People v. Shapiro, 3 N Y 2d 203; People v. Silverman, 3 N Y 2d 200; People v. Guariglia, 303 N. Y. 338; People v. Pallante, 282 App. Div. 989; People v. White, 309 N. Y. 636.)
   Fuld, J.

The same principles and reasoning that require affirmance in People v. Tomaselli, also decided today (7 N Y 2d 350), call for affirmance here.

Apart from the accusation that there was “ a strong indication of conspiracy between the defense counsel and prosecuting attorney ’ ’, which the dissenting opinion accurately characterizes as “ merely conclusory ” (p. 362), the petition in effect does no more than assert that the defendant’s court-appointed counsel made an error of judgment in conducting the trial of the case. This obviously affords no basis for post-conviction relief.

Specifically, the defendant alleges that there was an eyewitness to the crime, of which he was convicted, who had made a statement favorable to him and that, although he and his counsel knew this, the latter advised against calling the witness or using the statement on the ground that such a course would be detrimental to his case. Thus, the very allegations of the defendant’s petition negate the thought, expressed in the dissent (p. 361), that the charges * * * if proven might make out a case of fraudulent suppression of evidence at his trial.” Read as liberally as its language permits, the petition before us does no more than assert that the defendant and his attorney were aware of the witness and her statement and that the attorney decided, in the exercise of judgment and trial tactics, not to call the witness or use the statement.

The present case is entirely different from People v. Picciotti (4 N Y 2d 340); we granted a hearing in that case, but only because we found that the facts alleged by the defendant in his petition “ amount to coercion in the procurement of [his] plea ” and that, if proven ”, they would “ entitle the defendant to coram nobis relief ” (p. 344). Here, except for the conclusory allegation of conspiracy, to which we referred above, there is no allegation of any impropriety on the part of the district attorney or any other law enforcement officer which, under Picciotti and People v. Richetti (302 N. Y. 290, 294-295), would entitle the defendant to coram nobis relief.

Coram nobis may not be availed of to remedy counsel’s negligence or error of judgment. It would be folly indeed for the courts to sit and hear disappointed prisoners try their former lawyers on charges of incompetent representation. Absent evidence that the trial judge appointed an attorney who was unfit to defend the accused or that the judge allowed counsel to continue to act after it appeared that his representation was such as to make the trial a farce and a mockery of justice, the fact, if it was one, that assigned counsel made an error of judgment or of tactics during the course of trial is an insufficient ground for coram nobis and, this being so, it would be futile to have a hearing. This conclusion, far from being “ a retreat from the positions taken” in other cases (dissenting opinion, p. 361), is but an application and reaffirmation of the settled rule that, if the defendant would not be entitled to relief even if the allegations of his petition were to be established, further judicial investigation would be pointless. The courts below were, therefore, justified in denying the application without granting a hearing.

The order appealed from should be affirmed.

Desmond, Oh. J.

(dissenting). In this coram nobis petition defendant, convicted of manslaughter first degree in 1953 and now in prison, makes charges which if proven might make out a case of fraudulent suppression of evidence at his trial. There has been no judicial investigation into those charges. Our affirmance of a dismissal without a hearing means that there will not be, and probably never can be, any such investigation. This is a retreat from the positions taken in Matter of Lyons v. Goldstein (290 N. Y. 19), People v. Richetti (302 N. Y. 290, 296), People v. Picciotti (4 N Y 2d 340) and many other decisions.

Petitioner, confined in prison and acting as his own counsel, filed his handwritten coram nobis application in August, 1957 and the matter came on before General Sessions in December, 1957. There was no appearance by or for defendant. Although his petition prayed for a hearing to inquire into the facts and asked that he be brought from prison for the hearing, not only was no such trial held but the matter of taking testimony seems not to have been mentioned during the brief proceedings. The Assistant District Attorney told the court that defendant had been convicted of manslaughter and was seeking coram nobis relief. He then informed the court that the coram nobis petition alleged that certain evidence favorable to defendant had been suppressed during the trial. He stated that, according to the coram nobis petition, this evidence had been known to the defendant and his lawyer in the criminal trial but that defendant’s own lawyer had advised him not to call the witness in question because it would be detrimental to defendant’s case. The prosecutor concluded his remarks at the coram nobis hearing by telling the court that there could be no suppression of evidence under these circumstances because defendant himself had decided not to call the witness in question and the District Attorney was under no obligation so to do.

The difficulty with this brief declaration by the assistant prosecutor on the return day of the coram nobis application was that, while it was accurate so far as it went, it did not adequately describe the situation. The handwritten coram nobis petition runs for several pages. Beginning at the top of the second page it accuses the District Attorney of suppressing evidence at the trial of the indictment and says that there was “ a strong indication of conspiracy between the defense counsel and prosecuting attorney ’ \ This latter was, of course, merely conclusory. However, the next paragraph of the petition is of considerable interest. In that paragraph the petitioner swears that a named woman was an eyewitness to the acts performed by defendant and for which he was convicted of manslaughter, but that this woman was not produced at the trial. Then there appears in the petition what purports to be a quotation from a written statement made by this woman to the police before the trial of the indictment. This purported excerpt from her statement is to the effect that she was standing next to defendant on the night of the killing and saw him walk through a door into the street and saw three men (one of whom was the manslaughter victim killed by this defendant) and that she saw those three men attack defendant by throwing bottles and stones at him. The significance is that this bore directly on the only issue of fact tried to the jury in the manslaughter case.

We turn to the manslaughter case itself. Defendant was charged with, and convicted of, killing one George Parker by stabbing on New Year’s Eve, 1952. Earlier in the evening in a New York City apartment, defendant had gotten into an argument with some people, one of whom was the later victim Parker, about an accusation made against defendant Brown by one of the people in the apartment that Brown had stolen a pair of eyeglasses belonging to one of them. The manslaughter trial testimony was that at that time Brown had a knife and threatened to kill. There was proof at the criminal trial that, later that night, defendant encountered Parker and another man and that defendant stabbed and killed Parker. At the trial defendant pleaded self-defense, took the stand as his only witness and told the jury that, as he came out of the front doorway of the apartment house, Parker and some other man were lying in wait for him and began to throw garbage-can covers, bottles and stones at him and that in self-defense he stabbed Parker.

The quoted excerpt in the coram nobis petition, from the statement said to have been made by a woman bystander, closely corroborated defendant’s trial testimony. However, so far as we can find from the trial record, not only did defendant not mention in his testimony that this woman was nearby or saw the affray but there was no mention or reference at the criminal trial to the existence of such a witness or to the existence of the statement from which defendant now purports to quote in his coram nobis petition.

Defendant says in his coram nobis petition that before the trial his court-appointed counsel told defendant that the woman bystander and several other witnesses would testify in his behalf but that, just as the trial started, this assigned defense attorney advised petitioner against calling the woman as a witness, because of a criminal charge pending against the woman’s husband. Defendant says in the petition that the lawyer advised him not to take the stand and that, when he insisted on taking the stand, defense counsel told him not to mention the woman’s statement and that counsel would take care of the matter. The rest of the petition argues that it was the duty of the District Attorney to see that the jury knew about this statement.

There should have been a trial of the issue raised by this coram nobis application. The mystery about this woman and her statement should have been investigated. Of course, the District Attorney would not have to use such a statement at the trial so long as he fairly disclosed its existence to the defense, and defendant says he did know of it. However, it is quite remarkable (if the statement existed) that no use whatever was made of it by the defense on the criminal trial. The statement would not be evidence in chief but it could be important in other ways. It may well be that the defense counsel in his best judgment decided, for one reason or another, that it would not help defendant to call this witness even though she would testify as an eyewitness that defendant acted in self-defense. Regardless of all of this and of any such speculations, including speculation as to whether the woman and her statement ever existed, the interests of justice clearly required that General Sessions hold a hearing. Defendant is serving a long prison sentence. The Assistant District Attorney who represented the People at the coram nobis hearing had, apparently, not learned whether there had ever been such a witness or such a statement.

We are all familiar with the settled general rule that, when a coram nobis petition alleges facts which if true would entitle petitioner to relief, there must be a trial of those allegations unless their falsity is conclusively demonstrated by unquestionable documentary proof (People v. Richetti, 302 N. Y. 290, 296, supra, and other eases cited in People v. Picciotti, 4 N Y 2d 340, 344, 345, supra). That Picciotti case has a definite bearing here. We said that there must be a trial of Picciotti’s allegation that his guilty plea was entered because an Assistant District Attorney had told him that if he did not so plead to that one indictment he would be brought to trial on several others and if convicted would receive the longest possible sentence. The District Attorney’s answering affidavit in the Picciotti case (there is no answer at all in this case) pointed out that his only conversation with defendant had been in open court and that defendant was represented by counsel at the time. It was argued also in the Picciotti case that these were mere unsupported conclusory statements by the petitioner. We held that there had to be a trial of Picciotti’s allegations even though his own lawyer had urged him to plead guilty.

The order should be reversed and a trial ordered of the allegations of the coram nobis petition.

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

Order affirmed.


author: Fuld, J.

text:
    In the Matter of the Accounting of Y. B. Garden et al., as Executors of Claire R. Wright, Deceased, Respondents. Mary Robinson et al., Respondents; Helen W. Erskine, Appellant.
    Submitted January 14, 1960;
    decided February 25, 1960.

      Melville H. Cane, Pincus Berner and Paul Gitlin for appellant.
    I. Since ademption is predicated on the “ fact of change ” and since the record contains no “ fact of change ”, it follows that the order of the Appellate Division must be reversed, the decision of the Surrogate be reinstated and judgment directed for appellant. (Matter of Brann, 219 N. Y. 263; Matter of Ireland, 257 N. Y. 155; Ametrano v. Downs, 62 App. Div. 405, 170 N. Y. 388; Cohen v. Manufacturers Safe Deposit Co., 297 N. Y. 266; Matter of Columbia Trust Co., 186 App. Div. 377; Matter of Rosenfeld, 180 Misc. 452; Wyman v. Wyman, 26 N. Y. 253; Matter of Kane, 38 Misc. 276; Durrant v. Friend, 5 DeG. & Sm. 343.) II. The many other provisions in the will for appellant’s benefit negative the speculation that the specific legacy adeemed by an act of the testatrix. (Matter of Wilson, 204 Misc. 899.) III. Appellant does not have the burden of proof to establish the existence of the ring at the date of death. (Matter of Baker, 42 App. Div. 370.)

      Selma M. L. Berliner, Ephraim Berliner and Jay H. Rick for Mary Robinson, respondent.
    I. The diamond ring claimed herein as part of a bequest of jewelry is a specific legacy which adeemed because not present in decedent’s estate at her death. The insurance thereon is a different asset not part of the bequest of jewelry herein and falls into the residuary estate. (Matter of Anslinger, 185 Misc. 827; Matter of Hilpert, 165 Misc. 430; Matter of Brann, 219 N. Y. 263; Matter of Ireland, 257 N. Y. 155; Matter of Johnston, 277 App. Div 239, 302 N. Y. 782; Ametrano v. Downs, 62 App. Div. 405, 170 N. Y. 388; Beck v. McGillis, 9 Barb. 35; Matter of Rubinstein, 169 Misc. 273; Stanley v. Potter, 2 Cox Ch. 180; Matter of Goldberg, 275 N. Y. 186; Matter of Thompson, 217 N. Y. 111; Matter of Morris, 11 Misc 2d 457; Matter of Caldwell, 6 Misc 2d 110; Matter of Barry, 208 Okla. 8; Durrant v. Friend, 5 DeG. & Sm. 343; Flatter of Mercer, 171 L. T. R. 254.) II. The burden of proving that the ring was a part of the estate at the time of testatrix’ death is on appellant, the specific legatee. Appellant did not sustain her burden of proof. (Lerche v. Brasher, 104 N. Y. 157; Matter of Mercer, 171 L. T. R. 254; Durrant v. Friend, 5 DeG. & Sm. 343; Matter of Horn, 317 Pa. 49; Matter of Utica Trust & Deposit Co., 148 App. Div. 525; Matter of Columbia Trust Co., 186 App. Div. 377; Matter of Ireland, 257 N. Y. 155; Matter of Brann, 219 N. Y. 263.)
   Fuld, J.

The question posed by this appeal involves the doctrine of ademption. Is a specific legacy adeemed if, although the item bequeathed is missing at the time of the testator’s death, its value has been paid to the estate by an insurance carrier?

Claire Wright died in May of 1956. By her will, executed the year before, she bequeathed all her “furs and jewelry, both costume and precious ”, to Helen Erskine. The testatrix had in 1954 taken out a policy insuring her against the loss of jewelry and furs and in a schedule attached to the policy 27 items were listed, including a diamond ring valued at $4,920 and a gold fountain pen, valued at $75. About a month after the testatrix’ death, her executors, following a search of her effects, concluded that the ring and pen were ‘ ‘ missing ’ ’ and some time later filed a proof of loss for those articles. The insurance carrier, accepting the claim, paid the executors $4,920 on account of the ring.

In their account of proceedings, the executors requested instructions as to the disposition to be made of the insurance proceeds. Objections to the accounting were raised by both Helen Erskine and the testatrix’ mother, Mary Robinson, one of the residuary legatees. The former claimed, in effect, that the insurance proceeds should be treated as a “ specific legacy ’ ’ and paid to her, while Mrs. Robinson urged that the bequest of the ring had been adeemed and that the insurance moneys constitute part of the residuary estate.

The Surrogate’s Court sustained Helen Erskine’s objection; reasoning that she was “ vested with ownership ” of the missing ring, the Surrogate decided that the insurance proceeds belonged to her. Upon an appeal taken by Mrs. Robinson, the Appellate Division took a different view, holding that the specific bequest failed and that the insurance moneys became part of the residuary estate.

As indicated above, we deal with the problem of ademption. Although, in the early days of our law, ademption was based on the intention of the testator, today in New York, as well as in many other jurisdictions, intention has nothing to do with the matter; the bequest fails and the legatee takes nothing if the article specifically bequeathed has been given away, lost or destroyed during the testator’s lifetime. (See Matter of Brann, 219 N. Y. 263, 267-268; Matter of Ireland, 257 N. Y. 155, 158; Matter of Johnston, 277 App. Div. 239, 241, affd. 302 N. Y. 782; Beck v. McGillis, 9 Barb. 35, 56, 58-59; Stanley v. Potter, 2 Cox Ch. 180, 183; Durrant v. Friend, 5 DeG. & Sm. 343; Lenzen v. Miller, 309 Ill. App. 617, 628; Hoke v. Herman, 21 Pa. 301, 305; Forster v. Kamba’s Estate, 230 Wis. 246, 251; see, also, Atkinson, Wills [2d ed., 1953], pp. 741-742; 4 Page, Law of Wills [3d ed., 1941], § 1515 et seq.-, 6 Powell, The Law of Beal Property [1958], p. 548 et seq.)

Thus, wrote the court in Matter of Brann (219 N. Y. 263, 268, supra), “ It was once thought that ademption was dependent on intention, and ‘ it was, therefore, held in old- days that when a change was effected by public authority, or without the will of the testator, ademption did not follow. But for many years, that has ceased to be law ’ [case cited] * * * What courts look to now is the fact of change. That ascertained, they do not trouble themselves about the reason for the change.” The thing given is gone, and a court is not privileged to substitute something else for it. How unimportant the element of intention is, may be gleaned from Matter of Ireland (257 N. Y. 155, supra), where certain stock specifically bequeathed was held to have been adeemed, even though the stock had been sold by the testator’s committee after he had become incompetent. This court, after noting that the Appellate Division had declared that ‘ ‘ the intention of the testator was the governing factor in the case, and that as he had become incompetent to change or modify his will, his committee had no power to dispose of his property * * * so as to work an ademption of the legacy ”, went on to say (p. 158): “ The rule as it existed at common law, and still exists, admits of no such exception. * * * The exact thing which was given by the will could not physically be passed on to the legatee. From the very nature of the case and of the gift the legacy became extinct. In the absence of statute there is no power in the courts to change a specific into a general legacy or turn over the balance of the proceeds derived from the sale of the specific property to the legatee in place of the particular thing intended to be given.”

What is significant, therefore, is the fact that the precise thing given by the will is not available for disposition at the time of the testator’s death, and it matters not whether this came to pass because of an intentional and voluntary act on the part of the testator, such as abandonment, sale or gift, or because of an occurrence, involuntary and unintended, such as condemnation, fire or theft. (See Ametrano v. Downs, 170 N. Y. 388; Matter of Hilpert, 165 Misc. 430; Matter of Barry, 208 Okla. 8; see, also, 2 Jarman, Wills [8th ed.], p. 1065; Hnston, Succession, 34 N. Y. U. L. Rev. 1520,1525-1526; Note, 38 Cornell L. Q. 630.)

Indeed, there are at least two cases in which almost the precise question here involved was considered and passed upon. (See Matter of Hilpert, 165 Misc. 430, supra; Matter of Barry, 208 Okla. 8, supra.) In the Hilpert case, the testator specifically bequeathed a ‘ ‘ library ’ ’ which he had insured against loss by fire. A fire occurred, destroying some of the books and damaging others. The testator having apparently died shortly after the fire, his executor settled the loss with the insurance carrier and then sought approval of the compromise and a construction of the will. The Surrogate’s Court (Wingate, S.) approved the compromise and, in holding that the destruction of the books worked an ademption and that the legatee was not entitled to any part of the insurance proceeds, wrote, very much to the point (165 Mise., at pp. 432-433): “ The will speaks from the date of death * # * with the result that, if an article specifically given is not in existence at the time, by reason of loss, disposal or destruction, the legatee will take nothing. [Cases cited.] * * * In so far, therefore, as the specifically given articles were destroyed by fire there was an ademption of the gifts. Those which were not destroyed, but merely damaged, are deliverable in the state in which they presently exist. The insurance policy was a totally different asset of the decedent * * '* [and] like any other chose in action belonging to him, passed to his personal representative ”. Matter of Barry (208 Okla. 8, supra), dealing with a specific bequest of an automobile, is even more pertinent. The automobile was demolished and the testatrix killed in a highway accident which occurred while she was driving. The auto was insured, and the question arose whether the legatee was entitled only to the car in its damaged condition or to the car in its damaged condition plus the insurance proceeds. The high court of Oklahoma, adopting the reasoning of the Hilpert case, held that the specific legatee took the automobile in its damaged state and nothing more.

As to the further contention advanced by the appellant that the ring was actually a part of the testatrix’ estate at the time of her death, it is necessary merely to observe, first, that the burden of proving that is on the person making the claim (see, e.g., Matter of Mercer, 171 L. T. R. 254, 255; Durrant v. Friend, 5 DeG. & Sm. 343, supra; Matter of Horn, 317 Pa. 49) and, second, that the appellant failed to meet that burden in this case. In point of fact, not only is there not a word of testimony in the record before us that the ring was held by the testatrix or was among her effects when she died, but there is ample basis for concluding, as the Surrogate himself assumed, that the ring was either lost or stolen prior to her death. Payment of the loss by the insurance company establishes nothing more than that the carrier was satisfied that the policy covered the ring and that that article was missing.

The order appealed from should be affirmed, with costs to all parties appearing separately and filing separate briefs, payable out of the estate.

Chief Judge Desmond and Judges Dye, Feoessel, Van Voobhis, Bubke and Fosteb concur.

Order affirmed.

      . The insurance company also paid $75 on account of the pen, but we are not here concerned with that article.


author: Dye, J.

text:
    The People of the State of New York, Appellant, v. Eli Shapiro, Respondent.
    Argued February 25, 1960;
    decided March 3, 1960.

      Abraham Isseks, District Attorney (Angelo J. Ingrassia and Jerome S. Cohen of counsel), for appellant.
    The presumption contained in subdivision 3 of section 56 of the Vehicle and Traffic Law was valid and effective on June 11, 1959.

      Emanuel Gellman for respondent.
    I. The presumption contained in subdivision 3 of section 56 of the Vehicle and Traffic Law was rendered invalid and ineffectual by repeal of section 95-c. II. Prosecution for speeding is a case criminal in nature and all the safeguards involved in criminal cases should be observed. (People v. Lewis, 275 N. Y. 33; People v. Fiore, 9 Misc 2d 468; People v. Wilson, 3 Misc 2d 887.)
   Dye, J.

In this appeal from an order reversing a conviction for speeding on an unmarked highway we deal with the validity of subdivision 3 of section 56 of the Vehicle and Traffic Law. That section insofar as pertinent provides: “ Absence of signs erected pursuant to the provisions of section ninety-five-c of this article on any state highway outside of cities or incorporated villages shall be presumptive evidence that the state traffic commission has not fixed a maximum speed greater than fifty miles per hour at that location. ’ ’ (Added by L. 1957, ch. 114, eff. March 23, 1957.)

It so happens that section 95-c was repealed, and sections 1620 and 1681 were enacted, by chapter 698 of the Laws of 1957 (eff. July 1, 1958).

Section 95-c gave the State Traffic Commission the right to “ restrict the speed at which vehicles may proceed on or along state highways outside of cities or incorporated villages ’ ’ and to “ fix a maximum speed limit greater than the maximum speed limit prescribed by law on any of such highways ”.

It also provided that “ [s]peed zones established pursuant to the foregoing provisions of this section shall be adequately marked and suitable warning signs erected in accordance with the requirements of the state traffic commission ”.

Section 1620 gives to the commission the right, ‘1 by order, rule or regulation ”, to establish higher or lower maximum speed limits at which vehicles may proceed on or along such highways than the limits set forth in subdivision three of section fifty-six.”

Section 1681 refers to traffic control devices, their installation, operation and maintenance, etc.

Respondent argues as follows: Sections 1620 and 1681 have not entirely replaced the old section 95-c, because no mention is made that the speed zones in question shall be adequately marked and suitable warning signs erected in accordance with the requirements of the state traffic commission” (§ 95-c). Thus, in absence of such language, the commission is free to “ establish higher or lower maximum speed limits ” (§ 1620) without the necessity of posting the changes. And since the need to post signs marking speeds of less or greater than 50 miles per hour has been removed, however unwittingly, by the new legislation, there can no longer be a presumption, such as is contained in subdivision 3 of section 56, that in the absence of signs to the contrary the speed limit is 50 miles per hour.

In giving the commission the right to set higher or lower limits, and in reciting the various devices available for the control of traffic, sections 1620 and 1681 conferred the same powers as did section 95-c. This seems perfectly clear from the statutory language employed, hut if there is any ambiguity at all it must be resolved against the defendant, notwithstanding the quasi-criminal character of this prosecution, since the Legislature could not have intended otherwise. For example, to ascribe to the Legislature the intention that the commission may set a speed limit lower than 50 miles per hour, without-giving adequate warning, would obviously be absurd.

Additionally, section 1620 expressly refers to subdivision 3 of section 56 and the presumption contained therein, despite the incorporation in subdivision 3 of section 56 of section 95-c, a section repealed by the identical law giving life to section 1620.

We may read subdivision 3 of section 56 as referring to the new legislation, since the latter is, “in substance ”, the same as section 95-c (General Construction Law, § 80).

Therefore, the People were privileged to prove their case against this defendant by resorting to the presumption in subdivision 3 of section 56, since that presumption is still valid, and they did not need to rely on a certificate from the State Traffic Commission stating that the maximum speed limit at the location in question was 50 miles per hour.

We note the People’s failure to prove that the stretch of road involved did not fall within the areas expressly excepted from the operation of subdivision 3 of section 56 (cities, incorporated villages). But we may take judicial notice, as both the courts below probably did, of the character of the location in question. The Town of Blooming Grove is neither a city nor an incorporated village (see N. Y. Legis. Manual, 1959, pp. 951-965).

The order appealed from should be reversed and the matter remitted to the County Court of Orange County for determination upon the question of facts raised in that court (Code Crim. Pro., § 543-b).

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

Order reversed and case remitted to the County Court for further proceedings in accordance with the opinion herein.


author: Per Curiam.

text:
    Dellwood Dairy Co., Inc., Appellant, v. City of New Rochelle et al., Respondents.
    Argued January 21, 1960;
    decided March 3, 1960.

      Jules H. Enrich, Morris Golub and Sydney C. Winton for appellant.
    I. The operation by plaintiff of a milk vending machine in apartment buildings in New Rochelle does not violate the New Rochelle Zoning Ordinance. It does not in any way interfere with the fundamental residential nature of the buildings. II. The operation of plaintiff’s milk vending machines in apartment buildings constitutes an “accessory use” and as such is expressly permitted by the ordinance. (American Locker Co. v. City of New York, 308 N. Y. 264; Tarr v. City of New York, 12 Misc 2d 796; Matter of Flagg v. Murdock, 172 Misc. 1048; Matter of Packer v. Board of Stds. & Appeals of City of N. Y., 271 App. Div. 874; MacMillan v. McCaffrey, 201 Misc. 574; Matter of 140 Riverside Drive v. Murdock, 276 App. Div. 550; Matter of Presnell v. Leslie, 3 N Y 2d 384; Zahn v. Newark Bd. of Adjustment, 45 N. J. Super. 516.) III. The ordinance contains no prohibition against the operation of milk vending machines in apartment buildings. (Matter of 44 E. 102nd St. Corp. v. Murdock, 285 N. Y. 298; Matter of Monument Garage Corp. v. Levy, 266 N. Y. 339.) IV. If the zoning ordinance were given the meaning urged by defendants, it would be invalid. (American Locker Co. v. City of New York, 308 N. Y. 264; Peoples Dairy v. City of Lackawanna, 1 Misc 2d 700.)

      Murray C. Fuerst, Corporation Counsel (Herman D. Schmier of counsel), for respondents.
    The use of premises in a residence-zoned area within the City of New Bochelle for the sale of milk by means of coin-operated vending machines is not a permitted use under the zoning ordinance nor is it accessory to the main permitted uses and thereby violates the provisions of the zoning ordinance. (Matter of 140 Riverside Drive v. Murdock, 276 App. Div. 550; Matter of Presnell v. Leslie, 3 N Y 2d 384; American Locker Co. v. City of New York, 308 N. Y. 264; Matter of Packer v. Board of Stds. & Appeals of City of N. Y., 271 App. Div. 874; MacMillan v. McCaffrey, 201 Misc. 574; Peoples Dairy v. City of Lackawanna, 1 Misc 2d 700.)
   Per Curiam.

The sole issue is whether the presence of a coin-operated milk vending machine, installed in the basement of an apartment house located in a restricted residential zone, violates the Zoning Law of the City of New Bochelle, which prohibits any business in B-5 District except ‘ ‘ Accessory uses customarily incident to the above uses ” (New Bochelle Zoning Law, art. VII, § 1, subd. [e]). An accessory use is defined as a use customarily incidental and subordinate to the main use conducted on the lot, whether such accessory use is to be conducted in a main or accessory building ” (art. XI). We think it does not.

As noted in Special Term, the use of a milk vending machine is but a different method of doing a traditional service for a householder. It is a common experience that new times bring not only new problems but new ways and means of dealing with old ones. To illustrate, automation is now being turned to as a means of reducing labor costs not only in the industrial and commercial fields, but also in the domestic. The presence of a milk vending machine, such as the ones used here, in the basement of an apartment building which is not accessible to the general public, can have little, if any, adverse application to the character of the residential neighborhood. It is not commercialism such as ordinarily disturbs the quiet and peaceful enjoyment of the home but, rather, the convenient substitute for the route man. It is a device designed to perform “ a use customarily incidental and subordinate ” to the normal enjoyment of an apartment house.

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

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

Judgment reversed, etc.


text:
    Sidney Hammer et al., as Executors of Max Hammer, Deceased, et al., Appellants, v. John N. Rosen, Respondent.
    Submitted January 7, 1960;
    decided March 3, 1960.

      D. George Paston for appellants.
    I. The jury’s finding on the first cause of action, occasioned by the trial court’s reversible errors in admission and exclusion of evidence, requires a reversal of the judgment and a new trial. (Robins v. Finestone, 308 N. Y. 543; Keating v. Perkins, 250 App. Div. 9; Conklin v. Draper, 229 App. Div. 227, 254 N. Y. 620; Colvin v. Smith, 276 App. Div. 9; Estate of Correll, 178 Kan. 618; Johnson v. Schoch, 85 Kan. 837; State v. Gibson, 199 Iowa 177; State v. Stoddard, 215 Iowa 534; Williams v. Alexander, 309 N. Y. 283.) II. The trial court submitted to the jury the contract cause of action. If the fraud cause of action is closely dependent on the contract cause, it was error to separate the two by nonsuiting plaintiffs on the fraud cause of action. III. In any event, a prima facie cause of action for fraud was amply supported by the proof since plaintiffs were entitled to the benefit of every favorable inference which reasonably can be drawn from the facts adduced. It was reversible error to dismiss the fraud cause of action. (Hanlon v. MacFadden Pubs., 302 N. Y. 502; Noved Realty Corp. v. A. A. P. Co., 250 App. Div. 1; Dwight v. Germania Life Ins. Co., 103 N. Y. 341; Gans v. Ætna Life Ins. Co., 214 N. Y. 326; South Utah Mines & Smelters v. Utah Leasing Co., 260 F. 149; Kirke La Shelle Co. v. Armstrong Co., 263 N. Y. 79; Grossman v. Schenker, 206 N. Y. 466; Marino v. Alliaud, 8 A D 2d 100; Veazey v. Allen, 173 N. Y. 359; Guagliardo v. Ford Motor Co., 7 A D 2d 472; Markel r. Spencer, 5 N Y 2d 958.) IV. A prima facie cause of action for malpractice having been proved, the dismissal of this cause of action constituted reversible error, requiring a reversal of the judgment and a new trial. (Goldstein v. Pullman Co., 220 N. Y. 549; Benson v. Dean, 232 N. Y. 52; Griffen v. Manice, 166 N. Y. 188; Hansen v. Jones, 244 App. Div. 878; Simon v. Friedrich, 163 Misc. 112; Coleman v. McCarthy, 53 R. I. 266; Johnston v. Winston, 68 Neb. 425; Reynolds v. Struble, 128 Cal. App. 716; Wolfe v. Feldman, 158 Misc. 656.) V. The trial court committed a multiplicity of reversible errors. Plaintiffs did not have a fair trial. (Bator v. Hungarian Commercial Bank of Pest, 194 Misc. 232, 275 App. Div. 826; Merritt v. Campbell, 79 N. Y. 625; Nay v. Curley, 113 N. Y. 575; Matter of Rose, 35 Misc. 21; Stephenson v. Southerland, 150 App. Div. 275.)

      Harry A. Gair and Benjamin H. Siff for respondent.
    I. Whether defendant made a contract guaranteeing to cure Alice Hammer was a question of fact properly resolved by the jury. (Bottalico v. City of New York, 281 App. Div. 339.) II. The so-called fraud action was properly dismissed. The jury’s finding that defendant never made the contract sued on precludes any cause of action premised on fraudulently inducing the making of that alleged contract. (Israel v. Wood Dolson Co., 1 N Y 2d 116; Reitmeister v. Reitmeister, 162 F. 2d 691; Brick v. Cohn-Hall-Marx Co., 276 N. Y. 259; Crossways Apts. Corp. v. Amante, 213 App. Div. 430.) III. The requisites of a fraud action were not proved. (Snow v. Wathen, 127 App. Div. 948; Fein v. Starrett Tel. Corp., 280 App. Div. 670, 305 N. Y. 856.) IV. The malpractice action was properly dismissed. (Robbins v. Nathan, 189 App. Div. 827; Brown v. Goffe, 140 App. Div. 353; Morwin v. Albany Hosp., 7 A D 2d 582; Cassano v. Hagstrom, 5 N Y 2d 643; Pike v. Honsinger, 155 N. Y. 201; Yaggle v. Allen, 24 App. Div. 594; Saumby v. City of Rochester, 145 N. Y. 81; Hirsch v. Safian, 257 App. Div. 212; Lubbee v. Hilgert, 135 App. Div. 227; Warren v. Dearstyne Bros. Tobacco Co., 274 App. Div. 664; Matter of Case, 214 N. Y. 199.) V. There were no errors in the conduct of the trial or in the court’s rulings. (Finan v. New York Cent. & H. R. R. R. Co., 111 App. Div. 383; People v. Malkin, 250 N. Y. 185; People v. Dorthy, 156 N. Y. 237; Paretta v. Yuhas, 273 App. Div. 977, 298 N. Y. 756; People v. Weinberger, 239 N. Y. 307.)
   Fuld, J.

Alice Hammer, suffering from schizophrenia, was treated for some seven years by Dr. Eosen, a psychiatrist. In 1955 she and her father instituted this action, the patient seeking damages for malpractice, the father, for breach of contract and for fraud. Their efforts have been signally unsuccessful. The trial court dismissed the malpractice and fraud causes of action at the close of the plaintiffs’ case, while the jury, following submission to it of the contract cause, returned a verdict in favor of the defendant, and the Appellate Division, by a divided court, affirmed the resulting judgment. Although we agree with the disposition made of the other counts, we believe, as did the dissenting justice in the Appellate Division, that the count charging malpractice should have been submitted to the jury.

With respect to the evidence, it is necessary merely to point out that the testimony given by three of the plaintiff’s witnesses, indicating that 'the defendant had beaten Alice on a number of occasions, made out a prima facie case of malpractice which, if uncontradicted and unexplained and credited by the jury, would require a verdict for the plaintiff.

With respect to the defendant’s contentions seeking to justify the dismissal — that the action was barred by the Statute of Limitations, that there was no expert testimony that the acts of assault with which he was charged constituted improper treatment or malpractice and that there was no proof of injury — we may be almost as brief.

Since Alice was insane at the time the cause of action arose, section 60 of the Civil Practice Act effected an extension of the time within which to commence this action. And, since she was still insane when the suit was begun, the defense based on the Statute of Limitations must fail, and it matters not that she had not actually been adjudged incompetent. (See Thlocco v. Magnolia Petroleum Co., 141 F. 2d 934, cert, denied 323 U. S. 785; Browne v. Smith, 119 Col. 469; but see, contra, Chilford v. Central City Cold Stor. Co., 166 Misc. 780.) Indeed, even if section 60 had not extended the time to commence the action, the defense would still be unavailing in view of the plaintiff’s evidence that the beatings complained of were part and parcel of a continuing course of psychiatric treatment which did not terminate until 1955, the very year in which the action was begun. (See Nervick v. Fine, 195 Misc. 464, 465; Sly v. Van Lengen, 120 Misc. 420; Huysman v. Kirsch, 6 Cal. 2d 302, 307-308; De Haan v. Winter, 258 Mich. 293, 296-297; Schanil v. Branton, 181 Minn. 381, 382; Williams v. Elias, 140 Neb. 656, 660; Peteler v. Robinson, 81 Utah 535, 546.)

As to the second of the defendant’s arguments — that there was no expert testimony to support the plaintiff’s charge of malpractice— the simple answer is that the very nature of the acts complained of bespeaks improper treatment and malpractice and that, if the defendant chooses to justify those acts as proper treatment, he is under the necessity of offering evidence to that effect. In point of fact, the defendant can hardly urge that the plaintiff must call an expert to demonstrate the impropriety of the assaultive acts charged against him in view of the acknowledgment, contained in his brief in this court, that any mode of treatment which involves assaults upon the patient is fantastic ”.

And, finally, as to the defendant’s claim that there was insufficient proof of injury, we simply call attention to our recent statement that “ The damages recoverable in malpractice are for personal injuries, including the pain and suffering which naturally flow from the tortious act.”’ (Robins v. Finestone, 308 N. Y. 543, 546.) On the evidence presented, a jury would have been warranted in finding that defendant’s acts had caused the plaintiff pain and suffering.

The judgment appealed from should be modified by reversing so much thereof as dismissed the malpractice cause of action, a new trial granted as to such cause, with costs to abide the event, and, as so modified, judgment affirmed.

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

Judgment accordingly.

      . Alice was represented by a guardian ad litem; her father, Max Hammer, having died before trial, was replaced by the executors of his estate.


author: Foster, J. Desmond, Ch. J.

text:
    Planet Construction Corporation, Appellant, v. Board of Education of the City of New York, Respondent.
    Argued January 18, 1960;
    decided March 3, 1960.

      Benjamin Jaffe and Ralph Stout for appellant.
    I. Plaintiff’s uncontroverted proofs establish a waiver of the contract provision for the short period of limitation; and an estoppel to assert the same as a bar to plaintiff’s right to recover. (Bowen
      v. Preferred Acc. Ins. Co., 82 App. Div. 458, 175 N. Y. 497; Hennessey v. Knights of Columbus, 239 App. Div. 409, 264 N. Y. 668; Jackson v. Metropolitan Life Ins. Co., 69 Misc. 265, 144 App. Div. 912; Woodcrest Constr. Co. v. City of New York, 185 Misc. 18, 273 App. Div. 752; Dravo Corp. v. City of New York, 198 Misc. 161; Amex Asphalt Corp. v. City of New York, 263 App. Div. 968, 288 N. Y. 721; Triple Cities Constr. Co. v. Maryland Cas. Co., 4 N Y 2d 443; Vandeweghe v. City of New York, 150 Misc. 815; Matter of Buffalo Lib. v. Wanamaker, 162 Misc. 26; Van Dolsen v. Board of Educ., 162 N. Y. 446; Rason Asphalt v. Town of Oyster Bay, 6 A D 2d 810; Benedict v. Van Dusen, 221 App. Div. 304.) II. The cases cited below by defendant-respondent are so far different in their facts that none may be deemed applicable to the case at bar. (Bravo Corp. v. City of New York, 198 Misc. 161; Lord Burnham Co. v. City of New York, 251 N. Y. 198; New York City Employees’ Retirement System v. Eliot, 267 N. Y. 193; Oakhill Contr. Co. v. City of New York, 262 App. Div. 530; Matter of City of New York [Elm St.], 239 N. Y. 220; George C. Diehl, Inc., v. City of Lackawcmna, 233 App. Div. 348, 258 N. Y. 579; Woodcrest Constr. Co. v. City of New York, 185 Misc. 18, 273 App. Div. 752.) III. The courts below erred in ruling that the contract presented no ambiguity. (Hauer Constr. Co. v. City of New York, 193 Misc. 747.)

      Charles H. Tenney, Corporation Counsel (Beatrice Shainswit and Seymour B. Quel of counsel), for respondent.
    I. Plaintiff’s action is plainly barred by the contractual one-year period of limitation. (Soviero Bros. Contr. Corp. v. City of New York, 286 App. Div. 435, 2 N Y 2d 924; Bronx Water Works Corp. v. City of New York, 5 Misc 2d 874; Woodcrest Constr. Co. v. City of New York, 185 Misc. 18, 273 App. Div. 752.) II. Plaintiff’s acceptance of the adjustment price offered by defendant in settlement of plaintiff’s claim constituted an accord and satisfaction. (Hudson v. Yonkers Fruit Co., 258 N. Y. 168; Gerace & Castagna v. City of New York, 307 N. Y. 707; Nicholas v. City of New York, 293 N. Y. 704; Cauldwell-Wingate Co. v. City of New York, 242 App. Div. 626, 269 N. Y. 539; MacArthur Bros. Co. v. City of New York, 177 App. Div. 725, 224 N. Y. 629; Oakhill Contr. Co. v. City of New York, 262 App. Div. 530.) III. No element of waiver or estoppel existed in this case. (Oakhill Contr. Co. v.
      City of New York, 262 App. Div. 530; Matter of City of New York [Elm St.], 239 N. Y. 220; Matter of Long Is. R. R. Co. [8th Ave., Brooklyn], 174 Misc. 1037, 261 App. Div. 914; George C. Diehl, Inc., v. City of Lackawanna, 233 App. Div. 348, 258 N. Y. 579; Matter of Huie [McElligott], 7 A D 2d 599; Lord & Burnham Co. v. City of New York, 251 N. Y. 198; New York City Employees’ Retirement System v. Eliot, 267 N. Y. 193; Wood-crest Constr. Co. v. City of New York, 185 Misc. 18, 273 App. Div. 752; Amex Asphalt Corp. v. City of New York, 263 App. Div. 968, 288 N. Y. 721; Califano v. Citizens Ins. Co., 163 Misc. 542, 252 App. Div. 731; City of New York v. Alpha Contr. Corp., 182 Misc. 115; Rason Asphalt v. Town of Oyster Bay, 6 A D 2d 810; Benedict v. Van Dusen, 221 App. Div. 304.)
   Foster, J.

This is an appeal of the plaintiff, by permission of this court, from a summary judgment dismissing the complaint granted at Special Term and unanimously affirmed by the Appellate Division, First Department.

The action is to recover a balance alleged to be due for extra labor and materials furnished in connection with a construction contract. The contract contains a provision limiting the time for the commencement of such an action, or any claim arising out of the contract, to one year from the date of the acceptance of the work by the defendant Board of Education. Aside from some denials irrelevant to the issues here, the answer set up an affirmative defense of payment and the contract limitation for the commencement of an action. In granting summary judgment Special Term held that waiver of the contract limitation, and estoppel to assert it as a bar to the action, were not available to plaintiff.

The record indicates without dispute that on November 10, 1955 the defendant Board of Education issued its final payment certificate which bore this notation: ‘ Note. Additional amount not exceeding $45,000.00 is due Contractor for extra work performed.” On March 28, 1957, one year and about five months after the date of the final payment certificate, the board issued a change order addressed to plaintiff fixing a balance due for extras at $16,599.63. This order stated that the adjustment was made subject to certain conditions, among which was the following: “ all claims against the Board of Education of the City of New York which are incidental to or as a consequence of the aforementioned change are satisfied.” Plaintiff refused to sign the acceptance slip containing this stipulation, which in effect would have amounted to a release, but accepted a check for the amount stated which was received later, some time in May, 1957.

On May 22,1957, one year and about six months after the date of the final payment certificate, plaintiff filed a claim for $31,700.43, the total amount it claimed for extras, but later credit was given by plaintiff for the payment of $16,599.63 and the claim reduced to $15,100.80. Payment of the reduced amount was refused and thereupon the plaintiff commenced the present action.

In opposition to the motion for summary judgment at Special Term plaintiff took the position that the one-year time limitation in the contract began to run from the date of the change order and not from the date of the final payment certificate. Apparently for present purposes plaintiff claims only that the conduct of the defendant board, and its representative officers, with respect to the claim amounted to a waiver of the time limitation or an estoppel to enforce it. In support of this position the affidavit of the plaintiff’s president states that, after the final payment" certificate was issued on November 10, 1955, plaintiff requested the board, through its director of construction, to inspect and audit the items for extras, and the board, through its superintendent of construction, made numerous promises to have the items for extras audited but the matter was delayed until March 28,1957, before a change order was issued. It is on the basis of such promises and delay, plus a deduction of certain items from the contract price, that plaintiff claims triable issues as to waiver and estoppel. Defendant argues that under long-recognized principles of law, and subdivision 5 of section 20 of the General City Law, neither the doctrine of waiver nor estoppel is available to plaintiff.

The statute cited provides that no city shall have the power to waive the defense of the Statute of Limitations. Thus, a plaintiff was held barred by the Statute of Limitations from collecting a warrant in a condemnation award despite the fact that the money was unquestionably due (Matter of City of New York [Elm St.], 239 N. Y. 220). That case, however, dealt with the Statute of Limitations and not with a period of limitation fixed by the parties in a contract. There are also cases which hold that a defense of the one-year period of limitation fixed by contract is a good defense bnt waiver or estoppel was not involved in those cases, or else found not to exist (Amex Asphalt Corp. v. City of New York, 288 N. Y. 721; Califano v. Citizens Ins. Co., 163 Misc. 542, affd. 252 App. Div. 731; City of New York v. Alpha Contr. Corp., 182 Misc. 115). Those cases did not reach the issues presented here, nor did the case of Oakhill Contr. Co. v. City of New York (262 App. Div. 530) relied upon by Special Term. There it was held that a reservation for extras in a general release, accepted by a subordinate, was unauthorized and in violation of the contract. We have no such situation here. The final payment certificate issued in this case, and clearly authorized by responsible authority, expressly noted that an additional amount not exceeding $45,000 was due the contractor for extra work performed.

Section 10 of the Civil Practice Act provides generally that the limitations prescribed in the act apply, except in one of the following cases: “ 1. A case where a different limitation is specially prescribed by law or a shorter limitation is prescribed by the written contract of the parties.” We are constrained to the belief that this section is merely permissive and was not intended to raise a shorter period of limitation provided for in a contract to the dignity of a statute. Thus a shorter limitation by written contract may be examined as to whether it is unreasonably short (Sapinkopf v. Cunard S. S. Co., 254 N. Y. 111). Of course, a statute may not be subjected to such an examination. Doubtless this section was enacted to prevent a claim that an agreement for a shorter period of limitation was contrary to public policy. The prohibition contained in subdivision 5 of section 20 of the General City Law against a municipality’s waiving a defense of limitation applies, in our opinion, only to a statute. In other words a limitation clause in a contract stands on no other or different footing than any other clause, and may be waived in a proper case, or estoppel may bar its enforcement. Estoppel may apply to a municipality as well as to an individual (Vermeule v. City of Corning, 186 App. Div. 206, affd. 230 N. Y. 585; Vandeweghe v. City of New York, 150 Misc. 815, affd. 242 App. Div. 762).

The query remains whether on the motion for summary judgment there were triable issues as to waiver and estoppel. We think this query should be answered in the affirmative. The change order was issued to plaintiff one year and about five months after the final payment certificate. In the interim, plaintiff pressed for an audit of its claim for extras which, according to the affidavits submitted by plaintiff, was promised but not performed until the one-year period had expired. Moreover, the change order, in addition to setting forth items which the board was agreeable to pay, also deducted certain items from the contract price to the extent of $405.33. Thus the board was deducting from the amount under the contract a sum of money at a time when it claims plaintiff had lost its right to sue. This is a somewhat inconsistent position and would appear to have a bearing on the issues of whether the board did not waive the short period of limitation or is estopped from asserting it. The superintendent of construction apparently had wide power to determine the extent to which plaintiff was entitled for extras, and until such a time as he acted the plaintiff was in an anomalous position to say the least. Under the circumstances we think that triable issues of waiver and estoppel were present in the case and that summary judgment was improvidently granted.

The defendant board also urges a defense of accord and satisfaction, but this defense was not pleaded in its answer or presented to the Special Term. It is well settled that accord and satisfaction to be available as a bar to a plaintiff’s cause of action must be pleaded affirmatively (Reilly v. Barrett, 220 N. Y. 170; Habrich v. Donohue, 51 App. Div. 375; Wise v. Powell, 216 App. Div. 618; Ziegler v. Mancuso & Alessio, 283 App. Div. 813).

The judgment should be reversed, with costs in all courts, and the motion denied.

Desmond, Ch. J.

(dissenting). I dissent and vote to affirm. There is no sufficient proof as against the city of any waiver or estoppel and, furthermore, public policy as matter of law forbids the waiver by a public officer or employee of a standard, valid contractual time limitation for the filing of claims (see Civ. Prac. Act, § 10; Soviero Bros. Contr. Corp. v. City of New York, 286 App. Div. 435, 439, 441, affd. 2 N Y 2d 924; Sapinkopf v. Cunard S. S. Co., 254 N. Y. 111; Woodcrest Constr. Co. v. City of New York, 185 Misc. 18, affd. 273 App. Div. 752).

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

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


author: Dye, J. Froessel, J.

text:
    The People of the State of New York, Respondent, v. Frank Piscitello, Appellant.
    Argued January 12, 1960;
    decided March 3, 1960.

      Bella V. Dodd for appellant.
    I. Appellant was denied the right to a speedy trial provided under the Code of Criminal Procedure and the Civil Rights Law of this State. (People v. Prosser, 309 N. Y. 353; People v. White, 2 N Y 2d 220.) II. The prosecutor’s explanation for undue delay in this case does not constitute “ good cause ”. (Ponzi v. Fessenden, 258 U. S. 254; Taylor v. United States, 238 F. 2d 259.) III. Appellant did not waive his right to a speedy trial. (Ex parte Lopez, 39 Cal. 2d 118; Ex parte Miller, 66 Col. 261; State v. Coover, 165 Kan. 179.)

      Frank S. Hogan, District Attorney (Charles W. Manning of counsel), for respondent.
    Defendant’s right to a speedy trial was not violated. (People v. White, 2 N Y 2d 220; People v. Prosser, 309 N. Y. 353; People v. Godwin, 2 A D 2d 846, 2 N Y 2d 891.)
   Dye, J.

The defendant-appellant stands convicted of the crime of attempted robbery, third degree, entered on his plea of “ guilty” taken January 7, 1958 in the Court of General Sessions, New York County, to cover all counts of a second superseding indictment filed by a New York County Grand Jury under date of October 22,1957 (No. 429%-55). That indictment added one new charge and omitted three of the crimes alleged in indictment No. 429%-55, dated July 28, 1955, containing 12 counts, which indictment superseded indictment No. 429-55, dated February 4, 1955, charging 10 crimes, all growing out of an armed holdup of a restaurant and bar. An indeterminate sentence of a term of 15 years to life was imposed January 14, 1958, for the fourth felony offense.

Upon this appeal, the appellant challenges such judgment on the ground that undue delay in arraignment deprived him of the speedy trial to which he was entitled. No one questions that a defendant is entitled to a speedy trial (Code Grim. Pro., § 668; Civil Bights Law, § 12; U. S. Const., 6th Arndt.), or that the burden of proceeding promptly rests on the State and not on the defendant (People v. Prosser, 309 N. Y. 353). But, such right being personal, it may be waived by conduct on the part of the defendant indicating that he is not intent on a speedy trial, for instance, requesting a postponement or an adjournment (People v. Godwin, 2 N Y 2d 891, affg. 2 A D 2d 846), or acquiescence in a delay sought by the prosecution, or failure to make a motion before or at the trial for a dismissal by reason of such delay (People v. White, 2 N Y 2d 220).

The defendant in the case before us was indicted in February, 1955 and not arraigned until July, 1956. The District Attorney, with commendable fairness, rightly acknowledged that this delay of 17 months constituted a denial of a speedy trial to which the defendant was entitled and that, if a motion had been made at the time of the arraignment, the motion would have had to be granted. However, it is argued that the right was waived by subsequent conduct on the part of the defendant and of his counsel.

Upon this record, it may not be said that the rights accruing to this defendant by reason of the undue delay were waived. The granting of the request by defendant’s counsel for a postponement to permit the making of motions for all purposes was broad enough to indicate that any rights enjoyed by the defendant then existing were being preserved and protected. When the motion to dismiss for undue delay was made, even though subsequent in point of time to motions addressed to the indictment, it should have been granted, absent any showing of good cause to the contrary by the prosecutor (Code Crim. Pro., § 668). Here there was no such showing. The fact that defendant, who had been taken into custody January 18, 1955, a date prior to the indictment, was being held in the Federal detention headquarters, New York County, awaiting disposition of certain Federal charges, affords neither explanation nor excuse, since he could have been produced in the State court upon request, provided only that he was returned to Federal custody (U. S. Code, tit. 18, § 4085).

The judgment should be reversed and the indictment dismissed.

Froessel, J.

(dissenting). I dissent and vote to affirm. After the first period of delay in arraignment, occasioned by the defendant’s having been taken into custody to serve an uncompleted Federal term and a subsequent indictment for escape from Federal custody, defendant appeared without counsel and declined the court’s offer of assignment of counsel.

During the nearly six-month period following, and before he ever asserted a violation- of his right to a speedy trial, he and his counsel made no less than six requests for adjournments, one being for a month to allow his counsel a visit to California. During this same period not a single request for adjournment was made by the District Attorney. Further delays were occasioned by defendant’s refusal to plead, additional requests for time and various motions, including challenges to the indictments and for inspection of the Grand Jury minutes. Thus there was abundant evidence of waiver during the period when the District Attorney had made it clear that he wished the case to go to trial. On January 7, 1958 defendant pleaded guilty under the first count of the indictment to the crime of attempted robbery in the third degree, said plea to cover all 10 counts, which had charged him with first degree robbery of separate individuals, first degree grand larceny, first and second degree assault, and criminally possessing a pistol after a prior conviction.

In People v. Prosser (309 N. Y. 353 [1955]), where the fact pattern was altogether different, and ‘1 the defendant had no reason to believe that the remaining indictments would ever be tried ’ ’, we stated that the 11 inquiry in each case is factual and, like the question whether there has been undue delay, depends ‘ upon the circumstances of each particular case.’ (People v. Hall, supra, 51 App. Div. 57, 62.) In this case, not only was there never an application for a postponement in court or upon notice to the defendant, but there was absent even an awareness that the prosecution was being kept alive or that a trial would eventually be had * * *, ivithout which there could be no factual basis for inferring consent or waiver.” (P. 360; emphasis supplied.)

Upon the record in this case, which contained ample “ factual basis for inferring consent or waiver ” with respect to the preceding delay in arraignment, the trial court and a unanimous Appellate Division decided this “factual” issue against the defendant. Not only am I in agreement with that determination, but feel that under the circumstances of this case we are bound by their findings just as we are with respect to any other finding of fact based on substantial evidence.

The judgment should be affirmed.

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

Judgment reversed, etc.


author: Froessel, J.

text:
    The People of the State of New York, Appellant, v. Marjorie Meola, Respondent.
    Argued February 25, 1960;
    decided March 3, 1960.

      Abraham Isseks, District Attorney (Angelo J. Ingrassia and Jerome S. Cohen of counsel), for appellant.
    Subdivision 3 of section 15 of the Vehicle and Traffic Law of the State of New York is constitutional. (People v. Grogan, 260 N. Y. 138; People v. Harvey, 307 N. Y. 588; People v. Lyons, 7 N Y 2d 36.)

      Anthony J. Veraldi and Samuel W. Eager, Jr., for respondent.
    I. Subdivision 3 of section 15 of the Vehicle and Traffic Law is invalid. (People v. Hildebrandt, 308 N. Y. 397; People v. Firth, 3 N Y 2d 472; People v. Vetri, 309 N. Y. 401; People v. Phyfe, 136 N. Y. 554; People v. Grogan, 260 N. Y. 138; Cline v. Frink Dairy Co., 274 U. S. 445; People v. Mancuso, 255 N. Y. 463.) II. The statute in question does not contain any objective standard of conduct. (People v. Grogan, 260 N. Y. 138; People v. Zanchelli, 8 Misc 2d 1069; People v. Kramer, 10 Misc 2d 473; People v. Eckerson, 133 App. Div. 220; People v. Harvey, 307 N. Y. 588; People v. St. Clair, 90 App. Div. 239; People v. Weiler, 89 App. Div. 611.)

      Louis J. Lefkowits, Attorney-General (Paxton Blair of counsel), in his statutory capacity under section 71 of the Executive Law.
    I. Given the well-nigh universal use of automobile headlamps with adjustable beams, known as ‘ ‘ high-beam ’ ’ and ‘ ‘ low-beam ’ ’, and the wide prevalence throughout the country of ordinances or laws regulating the use of dazzling headlamps, the statute was adequately informative to satisfy constitutional requirements. (People v. Viti, 408 Ill. 206.) II. Whether the existence of a 50-foot mall, plus the width of a lane, between the cars involved makes the statute unreasonable as applied to this case presents merely an issue of fact. The issue is not open in this court, since the reversal was on the law alone.
   Froessel, J.

Defendant was convicted, after a trial, of failing to dim her headlights in violation of subdivision 3 of section 15 of the Vehicle and Traffic Law, and fined $5. The evidence showed that on May 1, 1959, at approximately 2:30 a.m. on a dark night, defendant was driving a 1958 Oldsmobile south ón the New York Thruway in the right-hand lane. A State Trooper was driving north in the left-hand lane in the patrol of his post. When the Trooper was approximately a thousand feet away from defendant’s car, he observed that the four headlights on said car- — two on each side — were on high beam. The high beam headlights interfered with the Trooper’s operation of his car, requiring him to reduce his speed, and he flicked his lights from high-low to high-low while approaching defendant. She did not lower her beams from high to low in response to this signal, and the Trooper crossed over the 50-foot mall separating the north and southbound lanes, pursued defendant for about half a mile, and gave her a summons.

Before the taking of any evidence, defendant moved to dismiss the information upon the ground that the section under which she was being prosecuted was invalid and unconstitutional. The motion was denied, and defendant was subsequently convicted of violating subdivision 3 of section 15 of the Vehicle and Traffic Law, which provides, in pertinent part: ‘ ‘ whenever a vehicle approaching from ahead is within five hundred feet, the headlamps, if of the multiple beam type, shall be operated so that dazzling light does not interfere with the driver of the approaching vehicle, and, whenever the highway is so lighted or traffic thereon is such that illumination of the highway for more than two hundred feet ahead of the vehicle by lights on such vehicle is unnecessary or impracticable, the headlamps, if of the multiple beam type, shall be operated with the lowermost distribution of light in use.” (Emphasis supplied.) The first paragraph of subdivision 3 defines “ multiple beam type ” headlamps as headlamps ‘ ‘ designed to produce more than one distribution of light”, and further provides: “Multiple beam headlamps shall be sufficient to reveal any person, vehicle or substantial object on the highway straight ahead of such vehicle for a distance of at least three hundred fifty feet ” — as opposed to the 200-foot illumination distance required of single beam headlamps.

The statute thus prescribes three rules of conduct in three separate and distinct situations: (1) When an approaching vehicle is 500 or less feet away, the motorist proceeding towards it is required to operate multiple beam headlamps in such a manner ‘1 that dazzling light does not interfere with the driver of the approaching vehicle ”; (2) when the highway is so lighted that headlamp illumination for a stated distance “ is unnecessary or impracticable ’ ’, the headlamps shall be operated on low beam, and (3) when the traffic on the highway is such that said headlight illumination “ is unnecessary or impracticable ”, the headlamps shall likewise be operated on low beam.

On her appeal to the County Court, defendant alleged in her affidavit of errors that the trial court erred in denying her motion to dismiss the information, since ‘1 the provision of Section 15, Subdivision 3 of the Vehicle and Traffic Law that the headlamps ‘ shall be operated so that dazzling light does not interfere with the driver of the approaching vehicle ’ is so uncertain, indefinite and vague as to cause the section to be unconstitutional.” Although defendant thus questioned the constitutionality of the statute only with respect to situation (1), the County Court held 11 that the language of the statute governing each of these situations is so indefinite, unclear and ambiguous as not to give ‘ unequivocal warning ’ to citizens of the rule which is to be obeyed. Application of the statute in each of the alternative situations is therefore unconstitutional.”

Since defendant was convicted of operating her headlamps in such a manner that dazzling light interfered with the driver of an approaching vehicle, we are concerned on this appeal — as defendant concedes — only with the constitutionality of the first portion of the statute. The issue before us is whether the statute, insofar as applicable, “ satisfies the requirement that a criminal statute must be sufficiently definite, ‘ clear and positive ’ to give ‘ unequivocal warning ’ to citizens of the rule to be obeyed ” (People v. Firth, 3 N Y 2d 472, 474; see, also, People v. Grogan, 260 N. Y. 138, 145; People v. Harvey, 307 N. Y. 588; People v. Diaz, 4 N Y 2d 469, 470; People v. Caswell-Massey Co., 6 N Y 2d 497, 501). As we pointed out in the Firth case and in People v. Hildebrandt (308 N. Y. 397), the rules of the criminal law are applicable to prosecutions for traffic infractions.

In holding that the applicable portion of the statute did not satisfy constitutional requirements, the County Judge reasoned that “ the term ‘ dazzling* ’ is too vague a descriptive adjective to definitely describe either the quality or the quantity of the light which is here forbidden ”, and that, even as defined in Webster’s Dictionary, the word “dazzle” failed “to fix a definite, clear and positive point at which a light, otherwise proper, becomes ‘ dazzling ’ and illegal ’ ’. The court also held, on the authority of People v. Grogan (supra), that the word “ interfere ” was too indefinite to be constitutional.

We think it clear that the statute in question is “ sufficiently definite, 1 clear and positive ’ to give ‘ unequivocal warning ’ to citizens of the rule to be obeyed ” (People v. Firth, supra, p. 474). The phrase “ dazzling light ” manifestly refers to the use of high, as opposed to low, headlight beams, and the word “ interfere ” plainly means to hinder or hamper the vision of an approaching motorist — a necessary element of the infraction. Here, as in the statute involved in People v. Harvey (307 N. Y. 588, 591, supra), “ Two things must occur to constitute the crime. One of these relates to the conduct of the accused, and the other to the effect of such conduct upon the complainant.” (Emphasis supplied.) The “ conduct of the accused ” which is proscribed is the operation of multibeam headlights so as to produce ‘‘ dazzling light ’ ’, and ‘ the effect of such conduct upon the complainant ” is interference with his vision and hence with the operation of his car.

In the context of this statute, the operation of headlights so as to produce ‘ dazzling light ’ ’ can only mean the operation of headlights on high beam. This was clearly the statutory intent (see legislative note accompanying the 1959 amendment of § 15, subd. 3; L. 1959, ch. 582, eff. July 1, 1959), and the average citizen would so understand it. The County Judge recognized as much when he noted that the statute ‘ ‘ deals with three situations in which the motorist is required to dim his headlights ” (emphasis supplied). Moreover, the statutory requirement that multiple beam headlights ‘‘ shall be sufficient to reveal any person, vehicle or substantial object on the highway straight ahead of such vehicle for a distance of at least three hundred fifty feet ” gives meaningful content to the phrase “ dazzling light ”.

The basic flaw in defendant’s reasoning is her assumption that it “is not the manipulation of light controls or the intensity or quality of the light produced, but the effect produced by that light upon another driver which is forbidden.” The statute, however, expressly provides that multiple beam headlights “ shall be operated so that dazzling light does not interfere with the driver of the approaching vehicle ” (emphasis supplied). As noted, the production of dazzling light refers to “ conduct of the accused ”, and it is the additional requirement of interference with the approaching driver that refers “ to the effect of such conduct upon the complainant ’ ’. Two elements are necessary to constitute the offense: (1) the use of high beams when an approaching vehicle is within 500 feet, and (2) interference with the vision of that driver by reason of such high beams. As to the second requirement, the Trooper testified that he signaled defendant to dim her lights precisely because the high beams interfered with his operation of his car, requiring him to reduce his speed. Proof was thus offered to establish both elements of the offense.

People v. Grogan (260 N. Y. 138, supra) is not authority for the proposition that the word “interfere”, as used in this statute, is too indefinite to be constitutional. The statute involved in the Grogan case made it a misdemeanor to unnecessarily interfere with the free and proper use of the public highway, but it did not define what constituted an unnecessary interference. In other words, the crime itself was “ defined as ‘ unnecessary interference ’ ” (260 N. Y., p. 147), but no “ standard or measure of conduct ” was provided (260 N. Y., p. 149), and we noted that, in order to save the constitutionality of the statute, ‘ ‘ we must read the words ‘ unnecessarily interferes ’ * * * as ‘unreasonably interferes ’ ” (emphasis supplied).

Here, as noted, the statute proscribes particular conduct, namely, the operation of headlights so as to produce dazzling light. A ‘ ‘ standard or measure of conduct ’ ’ is expressly provided, and the element of interference with the driver of the approaching vehicle is given meaning by the prohibition against the use of dazzling light. As defendant herself concedes, ‘ ‘ In effect, what Section 15(3) of the Vehicle and Traffic Law says is, ‘ Operate your lights so as to not blind (or, alternatively, “ hinder the vision of ”) an approaching driver.’ ”

In People v. Harvey (supra) the statute provided that “ Any person who shall by any offensive or disorderly act or language, annoy or interfere with any person in any place ” was guilty of the misdemeanor, of disorderly conduct (307 N. Y., pp. 589-590; emphasis supplied). In answer to the argument ‘ ‘ that words like ‘ offensive ’, ‘ disorderly ’, ‘ annoying ’ and ‘ interfering ’ make criminality depend not on the objective nature of words or acts, but on a complainant’s reaction thereto ”, we held: “ We do not think that the statute gauges criminality by the impressions made on an annoyed or disgruntled citizen. Common sense * * * dictate[s] that language or conduct is to be adjudged to be disorderly, not merely because it offends some supersensitive or hypercritical individual, but because it is, by its nature, of a sort that is a substantial interference with (our old friend) the reasonable man.” (307 N. Y., pp. 591-592; emphasis supplied.) (See, also, People v. Eckert, 2 N Y 2d 126,131.)

In the instant case, the Legislature saw fit to make the use of high beams a traffic infraction only when it interfered with the driver of an approaching vehicle. The interference contemplated was plainly hampering or hindering the vision of the approaching motorist, and this element of interference is certainly susceptible of factual proof. If the evidence shows that under the conditions prevailing the use of high beams could not reasonably have interfered with the driver of an approaching vehicle, then no infraction has been committed. It is manifest that the portion of the statute here involved affords a “ comprehensible guide, rule or information as to what must be done and what must be avoided, to the end that the ordinary member of society may know how to comply with its requirements.” (People v. Grogan, supra, p. 145.)

The order appealed from should be reversed and the case remitted to the County Court for determination upon the questions of fact raised in that court (Code Crim. Pro., § 543-a, subds. 2, 4; § 543-b).

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

Order reversed and case remitted to the County Court for further proceedings in accordance with the opinion herein.