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

text:
    Frank Hoefler, Respondent, v. George G. Gallery, Respondent, and National Union Fire Insurance Co., Inc., Appellant.
    Argued October 14, 1960;
    decided November 30, 1960.

      Hugh McM. Russ and Stephen H. Kelly for appellant.
    I. The decision below failed to give proper effect to the 1937 amendment to section 227 of the Real Property Law. (Smith v. Kerr, 108 N. Y. 31; Butler v. Kidder, 87 N. Y. 98; Werner v. Padula, 49 App. Div. 135, 167 N. Y. 611; Siegel v. Goldstein, 1 Misc 2d 839; Coast Delicatessen Co. v. Cox’s Baths, 175 Misc. 928.) II. Article 5 of the lease, insofar as it deals with the subject of rent, indicates that the parties intended to apportion rent. It cannot be considered an express agreement contrary to section 227 of the Real Property Law.

      Raymond T. Miles for George G. Gallery, respondent.
    I. Article 5 of the lease provides simply for payment of all rent to the date of the fire, and termination of the lease; nothing is said therein about apportionment of rents. II. The fire clause is an express agreement that there shall be no apportionment and is contrary to section 227 of the Beal Property Law. (Siegel v. Goldstein, 1 Misc 2d 839; Coast Delicatessen Co. v. Cox’s Baths, 175 Misc. 928.)

      James E. Kelly for Frank J. Grimmer and another, respondents.
    I. Section 227 of the Real Property Law is not applicable in this matter. (Craig v. Butler, 83 Hun 286, 156 N. Y. 672; Werner v. Padula, 49 App. Div. 135, 167 N. Y. 611; Siegel v. Goldstein, 1 Misc 2d 839; Coast Delicatessen Co. v. Cox’s Baths, 175 Misc. 928.) II. Article 5 of the lease has no provision for apportionment of any rental paid. III. Where a contract is ambiguous, the acts of the parties are evidence of their intentions. (Insurance Co. v. Dutcher, 95 U. S. 269; Woolsey v. Funke, 121 N. Y. 87.)
   Fuld, J.

This appeal, here by our permission, requires us to decide whether under the circumstances presented a tenant, following a fire which destroyed the leased premises, is entitled to recover from his landlord the amount of rent, paid in advance, for the unexpired portion of the term.

George Gallery leased property which he owned in West Seneca, New York, to Frank Hoefler in June of 1957, for use as a bowling alley. The lease agreement, a printed form, provided, in a typewritten insertion, for a tenancy of one year from August 1, 1957 at an annual rental of $12,000, the full amount of which was paid in advance. In case the premises were destroyed by fire or were so damaged as to render them untenantable, printed paragraph 5 of the form lease declared, either party could terminate the lease upon 30 days’ notice and, it went on to specify, " at the end of such thirty days the tenant shall pay all rent to the date of said fire and surrender * * * said premises discharged of this lease.”

Some weeks after taking possession of the premises, the tenant obtained a policy of fire insurance from the National Union Fire Insurance Company . It insured his “ leasehold interest ”, which was defined in the policy as the Insured’s interest in the amount of advance rental paid by [him] and not recoverable ” from the landlord under the terms óf the lease.

In November of 1957, a little more than three months after Hoefler moved in, a fire occurred rendering the premises unusable. The tenant gave notice of an intention to terminate the lease and asked the landlord to return the sum of $8,766.67, representing the ‘ ‘ unearned ’ ’ rental for the balance of the term. The landlord acquiesced in the lease’s termination, but refused to refund any part of the rent. The tenant then requested payment under its policy from the insurance company. When the latter also refused to pay—on the ground that the tenant was entitled to recover from the landlord—Hoefler instituted this action against both landlord and insurer, demanding judgment against the one or the other. After issue was joined, the plaintiff moved for summary judgment and Special Term, concluding that the landlord was entitled to retain the entire year’s rent and that the insurance company was liable on its policy, granted summary judgment against the latter and denied it against the former. Only the insurance company appealed to the Appellate Division and, of course, it alone appeals to this court from the Appellate Division’s affirmance.

Quite obviously,, the plaintiff is entitled to recover, the sole question being, against whom. If he may recover from his landlord, there will have been no loss under the policy, since, by its terms, it covers him only if the “ advance rental ” is " not recoverable ’ ’ from the landlord. If, on the other hand, he is not entitled to recover from his landlord, then, the insurance company concedes, it would be liable on the policy and obliged to pay. Disposition of the insurance company’s appeal depends, therefore, on plaintiff’s rights against the landlord.

In days gone by, at common law, absent agreement to the contrary, destruction of a building on land held under lease did not entitle the tenant to terminate his obligations under the lease or to recover any portion of the rental paid in advance, even though such destruction deprived him of the benefits of the lease. One aspect of the injustice attendant upon application of this rule was remedied in this State by enactment in 1860 of a statute giving the lessee an option to terminate the lease and surrender the premises whenever they were rendered untenantable through no fault of his own and the parties had made no express agreement to the contrary (L. 1860, ch. 345; L. 1896, ch. 547, § 197; see Butler v. Kidder, 87 N. Y. 98).

Until 1937, the statute, present section 227 of the Beal Property Law, remained substantially unchanged; it recited that, where any leased building was destroyed by the elements, " and no express agreement to the contrary has been made in writing ’ ’, the tenant might, if the destruction occurred without his fault or neglect, surrender possession and be relieved of liability "{ to pay * * * rent for the time subsequent to the surrender.” Since it was silent on the subject of apportioning rent paid in advance, pur courts continued to apply the common-law doctrine, which permitted the landlord to retain any and all rent in his hands at the time the destruction occurred. (See Werner v. Padula, 49 App. Div. 135, 138, affd. 167 N. Y. 611.) In 1937, however, the Legislature, undoubtedly believing that the rule of no apportionment of advance rent was as inequitable and as unjust as had been the rule of no termination, amended section 227 to mandate the apportionment of such rent, by adding the following sentence (L. 1937, ch. 100):

1‘ Any rent paid in advance or which may have accrued by the terms of a lease or any other hiring shall be adjusted to the date of such surrender.”

The language of the statute, as it now reads, is plain, its purpose clear. Unless the parties entered into an agreement to the contrary, the plaintiff in the ease before us is entitled to recover from his landlord ‘ ‘ rent paid in advance * * * adjusted .to the date of * * * surrender ’ ’ of the premises. The only question, therefore, is whether the lease contains or reflects an .agreement “ contrary ” to the provisions of section 227. If there was no contrary agreement, the statute controls and the landlord is liable; if, on the other hand, the lease contains a provision contrary to that of the statute, the lease provision prevails.

It is the defendant landlord’s contention that there was such a contrary agreement, and that it is to be found in paragraph 5 of the lease, which recites that the tenant “ shall pay all rent to the date of [the] fire ”. The argument does not withstand analysis. The recital—that the tenant shall pay all rent to the date of the fire — is boiler plate ” in a printed form lease and was rendered meaningless and inoperative by the parties’ stipulation, set forth, significantly, in typescript, that the full year’s rent be paid in advance. If the clause requiring payment of rent to the time of the fire is deemed inoperative, there is not a word in the lease as to the question here in issue, the liability of the landlord for rent paid in advance. Since, therefore, to quote from section 227, there is no ‘ ‘ express agreement to the contrary ’ ’, the statute’s explicit mandate that there be an apportionment of the advance rent must be obeyed.

Even if paragraph 5 were, however, to be considered pertinent and operative, it would not advance the landlord’s position. The plain fact is that the paragraph reflects an understanding that rent should be paid only for the time during which actual possession and enjoyment of the premises are possible, an understanding consonant rather than inconsistent with section 227. We would pervert the ordinary meaning of language were we to read the recital that the tenant “ shall pay all rent to the date of [the] fire ” as an agreement that the landlord retain all rent paid in advance. On the contrary, this provision can only mean that nothing was to be paid on account of the period after the fire and, since the rent for the entire year was payable in advance, the provision must be read to give the tenant the right to obtain a refund of the amount attributable to the period following the fire. Thus, paragraph 5, if operative at all, evidences the same spirit as does section 227, a desire to avoid the injustice of a tenant paying rent for premises destroyed through no fault or neglect of his own.

The landlord seeks to avoid this construction of paragraph 5 by pointing to the circumstance that the tenant took out a policy insuring him against the loss of his advance rental. This means, it is argued, that the tenant recognized that the lease gave him no right to the return of any of the rent paid in advance. The answer to the contention is twofold.

In the first place, the effect of section 227 may only be obviated, as provided in the section, by an “ express agreement to the contrary ’ ’ between the tenant and his landlord. The fact, and it is not clear that it is the fact in this case, that the tenant may have taken out the insurance because he mistakenly gauged his rights, does not create the requisite agreement to the contrary. If, under the terms of the lease, read in the light of the statute, the landlord was under a duty to refund the “ unearned ” rent, he remained under such a duty despite the existence of the tenant’s insurance policy. In other words, the rights and duties of the landlord and tenant are determined solely by the lease and are not affected by third-party agreements. The tenant may well have taken the policy to guard against a number of conditions and events other than and in addition to his failure to recover the rent paid in advance. Consequently, the existence of such insurance is entirely irrelevant to the basic issue of landlord-tenant obligations.

In the second place, the fact that the tenant herein applied for insurance, or that the insurance company wrote the policy, does not necessarily mean that he, or the insurer, construed the lease to deny the tenant the right to the return of any advance rental. Had that been the construction put on the insurance contract by the insured and the insurer, they would have simply defined the insured’s “leasehold interest” as “the amount of advance rental paid by the Insured ” without adding — as they did — “ and not recoverable under the terms of the described lease (Italics supplied.) Be that as it may, though, the likelihood is that Hoefler procured the insurance simply because he was not sure what his rights were under the various contingencies which could eventuate and wanted to provide against any and all of them.

However we construe paragraph 5 — whether we regard it as meaningless and inoperative or whether we read it as importing into the lease the provisions of section 227 — the statute controls and requires us to conclude that the landlord is liable to his tenant for the “ unearned ” rent. And since the policy written by the defendant insurance company obligates it only if such rent is not “ recoverable ” from the landlord, the former may not be subjected to liability on the record before us. It follows, therefore, that the plaintiff’s motion for summary judgment against the insurance company should not have been granted and that, had the plaintiff appealed from the order denying his motion for summary judgment against the landlord, we would have reversed and granted such motion. Since, however, the plaintiff took no appeal, this court may not now dispose of his action against the landlord; its determination must await a trial or an application at Special Term for reargument of the motion.

Our decision accords not only with the sense and spirit of section 227 of the Beal Property Law, but with what must have been the understanding of the parties. On the one hand, it enforces payment from the tenant for value received, for his use of the premises until the fire forced him out of possession, while, on the other hand, it prevents the landlord from gaining a windfall and retaining that for which he has given no value.

The judgment of the Appellate Division should be reversed and summary judgment granted dismissing the complaint against the defendant National Union Fire Insurance Company, with costs in all courts.

Chief Judge Desmond (dissenting).

The controversy between the tenant and the landlord is not before us since the tenant was denied summary judgment against the landlord at Special Term and no appeal was taken therefrom.

This appeal, therefore, concerns only the suit by the tenant against the insurance company on a policy purchased and written to protect the tenant against loss (that is, prepaid rent) in the event that fire damage should cause him to vacate the leased building. If we were construing the lease we might have difficulty with a possible ambiguity contained therein. The typed part of the lease requires the tenant to pay $12,000 annual rent in advance with no mention of rebate in case of fire, while the printed language of the lease requires the tenant to pay all rent to the date of said fire ”. However, the insured and the insurer resolved any such ambiguity for themselves. The insurer had the lease before it when it wrote this policy and referred to the lease in the policy. Having examined the policy the insurance company insured the interest of the tenant in the amount of advance rent paid by him “ and not recoverable ” from the landlord under the lease. This policy has no meaning whatever and covered no risk whatever unless the insured and the insurer were in effect agreeing that in the event of any such fire the insurance company would reimburse the tenant for prepaid rent. The policy even specifies the amount thereof as $1,000 per month. To say that an insurance company can write-such a policy and take a premium therefor and then refuse to pay on the happening of the risk insured against is contrary to all accepted theories of insurance and of fairness.

It really does not matter whether we say that the insurer is estopped to deny this coverage (4 Appleman, Insurance Law and Practice, p. 110; Liverpool & London Globe Ins. Co. v. Bolling, 176 Va. 182) or whether we say that insured and insurer agreed on a practical construction of the policy and, indirectly, of the lease (see Dobbins v. Pratt Chuck Co., 242 N. Y. 106, 113) or whether we say that under such an insurance arrangement the rights and liabilities of the landlord and tenant between themselves are no concern of the insurer (Kahn v. American Ins. Co., 137 Minn. 16, 19, very much in point here; Foley v. Manufacturers & Bldrs.’ Fire Ins. Co., 152N. Y. 131,135). The common sense and justice of the contract between insurer and insured is that the former, having examined the lease, agreed that in the case of a destructive fire it would pay the tenant $1,000 per month for the unexpired term of the lease. The policy should be so constructed as to effect its obvious, unmistakable purpose (Birnbaum v. Jamestown Mut. Ins. Co., 298 N. Y. 305, 309, 312, 313).

The judgment appealed from should be affirmed, with costs.

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

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

      . Hoefler having died following our grant of leave to appeal, his executors were substituted as parties plaintiff.


source: Caselaw Access Project

author: Fuld, J.

license: Public Domain

text:
    In the Matter of the Arbitration between National Cash Register Company, Appellant, and Charles Wilson, as President of Cayuga Lodge No. 1607, International Association of Machinists, et al., Respondents.
    Argued October 4, 1960;
    decided November 30, 1960.

      George L. Ingalls for appellant.
    I. The jurisdiction of arbitrators over the subject matter is subject to court review on a motion to vacate the award. (Dodds v. Hakes, 114 N. Y. 260; Matter of Marchant v. Mead-Morrison Mfg. Co., 252 N. Y. 284; Matter of Stange v. Thompson-Starrett Co., 261 N. Y. 37; Matter of Western Union Tel. Co. [ACA], 299 N. Y. 177; Matter of Eagar Constr. Corp. v. Ward Foundation Corp., 255 App. Div. 291; Publishers’ Assn, of New York City v. New York Typographical Union No. 6, 168 Misc. 267.) II. The arbitrators exceeded their powers by adding to and modifying the strike settlement agreement and the seniority provision of the collective bargaining agreement. (Matter of Stange v. Thompson-Starrett Co., 261 N. Y. 37; Matter of General Elec Co. [United Elec. Radio & Mach. Workers of America], 300 N. Y. 262; Matter of Western Union Tel. Co. [ACA], 299 N. Y. 177; Matter of International Assn. of Machinists [Cutler-Hammer], 271 App. Div. 917, 297 N. Y. 519; Matter of Iino Shipbuilding & Eng. Co. (Hellenic Lines], 6 A D 2d 159, 5 N Y 2d 987; Matter of Wilkins, 169 N. Y. 494; Matter of Dembitzer [Gutchen], 3 A D 2d 211; Matter of Weiner Co. [Freund Co.], 2 A D 2d 341; Matter of Campe Corp. [Pacific Mills], 275 App. Div. 634; Matter of Pine St. Realty Co. v. Coutroulos, 233 App. Div. 404; Matter of Wheat Export Co., 185 App. Div. 723, 227 N. Y. 595.) III. Furthermore, the Board of Arbitration so imperfectly executed its powers that a final and definite award has not been made. (Matter of Pfeiffer, 222 App. Div. 62; Matter of Brooklyn Eagle v. McManus, 272 App. Div. 933; Matter of Morantz [Berliant], 275 App. Div. 873.)

      William J. Isaacson and Edward W. King for respondents.
    I. The Company, having failed to move in court at the inception of arbitration for a stay on the ground that there was no valid contract requiring it to submit to arbitration, and having participated in the selection of the arbitrators and in the proceedings held before them, is precluded by the New York State arbitration law from resubmitting this contention to a court. In any event, under the contract between the Company and the Union, the dispute herein in issue is arbitrable. (Matter of Harris [East India Trading Co.], 16 Misc 2d 87; Matter of Finsilver, Still & Moss v. Goldberg, Maas & Co., 253 N. Y. 382; Matter of Iino Shipbuilding & Eng. Co. [Hellenic Lines], 6 A D 2d 159, 5 N Y 2d 987; Dodds v. Hakes, 114 N. Y. 260; Matter of Marchant v. Mead-Morrison Mfg. Co., 252 N. Y. 284; Matter of Stange v. Thompson-Starrett Co., 261 N. Y. 37; Publishers’ Assn. of New York City v. New York Typographical Union No. 6, 168 Misc. 267; Matter of Western Union Tel. Co. [ACA], 299 N. Y. 177.) II. The Board of Arbitration did not exceed its powers in construing the recall provisions of the strike settlement supplements. But, even if it is assumed that the Board of Arbitration misconstrued these recall provisions, an arbitration award may not be set aside for such misconstruction. (Matter of Wilkins, 169 N. Y. 494; Steelworkers v. Enterprise Corp., 363 U. S. 593.) III. The award is definite and final. The back pay due the . employees may be ascertained by simple mathematical computation. (Matter of Springs Cotton Mills [Buster Boy Suit Co.], 275 App. Div. 913; Matter of Hunter [Proser], 274 App. Div. 311, 298 N. Y. 828; Matter of Feldman [Rockaway News Supply Co.], 6 Misc 2d 406.)
   Fuld, J.

In 1952, petitioner National Cash Register Company and the Union, which represented the Company’s production and maintenance employees, entered into a five-year collective bargaining agreement, providing, among other things, for seniority rights of the employees. In the Autumn of 1956, the Union called an economic strike, concededly lawful, which was terminated on December 26, shortly after two strike settlement supplemental agreements — one dated December 20, the other December 24—were executed.

The Memorandum of Agreement of December 20 extended the original 1952 collective bargaining agreement for one year, reciting that it was to be extended and remain in effect until May 8, 1958 ”. In addition, this Agreement provided that, except for a 10-day period immediately following the strike settlement, the recall of employees was to be in the order of their seniority. Thus, section 6 of the Agreement read in this way: ‘ The seniority provisions of the Collective Bargaining Agreement are hereby waived for a period of ten (10) working days, following the signing of a strike settlement agreement with respect to recall of the employees, and thereafter such recall shall be in accordance with the seniority provisions of the existing collective bargaining agreement.” And the later Strike Settlement Agreement of December 24 recited that ‘‘ All recalls under Section 6 of the memorandum agreement will be made on a fair and equitable basis.” According to officials of the Union, these provisions reflected an understanding that ‘ ‘ no preference be given either to strikers or non-strikers, and that at the end of 10-days contract seniority should prevail ”; it was the Union’s position, in other words, that, when recalled after the 10-day period, strikers, if possessed of greater seniority, would replace nonstrikers within their respective classification.

The December agreements terminated the strike and the return to work began on December 26. The Union claims that the Company violated its undertaking to recall employees in accordance with the seniority provisions of the collective bargaining agreement, that, during the 10-day waiver of seniority period, it proceeded to retain all of the nonstriking employees without regard to their skills or the needs of production. And, after the lapse of the 10-day period, the Company, in recalling employees to work, applied seniority rights not among all the employees — those who did not strike at all and those who had been recalled during the 10-day period—but only among those who were still out because of the strike. The Union filed á grievance and demanded arbitration, urging, in effect, that the Company, by retaining the nonstrikers irrespective of their seniority, placed them in a position of superseniority over their striking brethren.

The Company notified the Union that it deemed the dispute not arbitrable. But, although it registered its objection to arbitration during the proceedings, it did not make a motion for a stay of arbitration. Instead, it agreed to submit the question of arbitrability to the three-man board of arbitrators and participated fully in the proceedings, selecting one of the arbitrators, presenting detailed evidence and submitting briefs. It is, nevertheless, the Company’s contention that the dispute was not subject to arbitration because the December strike settlement supplements contained neither an express agreement to arbitrate nor any clause which would have made them a part of the principal collective bargaining agreement which itself provided for arbitration only of disputes arising under its own terms. On the merits, jurisdiction aside, the Company argues that it did not violate the December 20th agreement, that its procedure for recalling employees ‘ ‘ followed the language of Section 6 explicitly ”. More specifically, the Company maintains that it was not obliged to recall strikers to replace nonstriking employees within the same classification even if the strikers had greater seniority; that only if a nonstriker had been transferred to a striking employee’s job, would that striker be entitled to replace the nonstriker.

Two of the three arbitrators decided, with some reservations, in favor of the Union’s position and ruled that the specification in the Settlement Agreement of December 24 that all recalls were to be made on a “ fair and equitable basis ’ ’ required the Company ‘ ‘ to reinstate, starting with the 11th day after the end of the strike, the ‘ status quo ante ’ which prevailed immediately prior to the start of the strike. ’ ’ They also decided that employees were entitled to reimbursement for any loss of earnings' incurred as a result of the Company’s departure from such method of recall. The consequent award is the subject of the present proceeding to vacate.

The Court at Special Term vacated the award on the ground that' the December strike settlement agreements contained no provision for arbitration and that the arbitration clause of the original collective bargaining agreement provided for arbitration only of “ ‘ disputes arising under this agreement ’ ”. The Appellate Division took a different view. It reversed Special Term’s order and confirmed the award, declaring that the December agreements were merely supplements to the original agreement ” and that “the arbitration clause contained in the original * * * applied to the entire agreement between the parties as amended and supplemented ”. With this, as well as with its other grounds for decision, we are in full accord.

The arbitration clause (§ 7) of the main collective bargaining agreement, after providing for arbitration of any disagreement “respecting the provisions of this agreement,” defines the ‘ Scope of Arbitration ” in “ F ” in this way: ‘ ‘ The Arbitration Board shall have the authority only to settle disputes arising under this agreement and may only interpret and apply this agreement to the facts of the particular grievance involved. It shall have no power to add to, subtract from or modify this agreement or any supplement to it.” (Emphasis supplied.) By including in section 7F of the main agreement the words, “ or any supplement to it [i.e., the agreement] ”, the Arbitration Board was given authority to pass on any dispute arising not only from the main agreement, but also from ‘ ‘ any supplement to it ”. And, since there can be no donbt that the two strike settlement agreements of December, 1956 were “ supplements ’ ’ to the collective bargaining agreement, it necessarily follows that the three formed a single union-management contract.

In any event, though, even if it could be argued that there was no right to arbitrate" the controversy here at issue, the Company, by proceeding to arbitration without moving for a stay, must be deemed to have waived its contention that the agreement did not provide for arbitration.

The circumstances under which a party may move to vacate an arbitration award are strictly limited by the provisions of the Civil Practice Act dealing with arbitration (§§ 1458, 1462). If a party against whom arbitration is sought has not participated in the selection of arbitrators or in the proceedings before them, he is free to put in issue the question of nonarbitrability, that is, that “ there was no valid submission or contract” to arbitrate, either by a motion for a stay of the arbitration in advance of arbitration or by a motion to vacate the award following the arbitration (§ 1458, subd. 2; § 1462, subd. 5). But if he elects to participate in the selection of the arbitrators or to go forward with the proceedings, he may not thereafter move to vacate on the ground that there was no contract to arbitrate. Having taken part in the arbitration, he may object to the confirmation of the award,” subdivision 1 of section 1458 recites, only on one or more of the grounds specified ” in subdivisions 1 through 4 of section 1462: (1) corruption, fraud or other undue means in procuring award; (2) partiality or corruption of arbitrators ; (3) misconduct of arbitrators in refusing to postpone hearing or to hear material evidence; and (4) act of arbitrators in exceeding their powers or imperfectly executing them. Since, therefore, the Company in this case selected an arbitrator and participated in the arbitration proceedings, it may not, following an adverse decision before the arbitration tribunal, be heard to question either the existence of a contract to arbitrate or the arbitrators’ jurisdiction over the subject matter.

As to the Company’s contention that the arbitrators “ exceeded their powers ” within the meaning of section 1462, it is enough to point out that (in the context of the case before us) arbitrators may be said to have done so only if they gave a completely irrational construction to the provisions in dispute and, in effect, made a new contract for the parties. (See, e.g., Matter of S & W Fine Foods [Office Employees Int. Union, Local 153, AFL-CIO], 7 N Y 2d 1018; Matter of Wilkins, 169 N. Y. 494, 496-497; Steelworkers v. Enterprise Corp., 363 U. S. 593, 597.) The mere fact that a different construction could have been accorded the provisions concerned and a different conclusion reached does not mean that the arbitrators so misread those provisions as to empower a court to set aside the award. It appears clear to us that the agreement between the Company and the Union is reasonably susceptible of the construction given it by the arbitrators. Accordingly, since they acted within their powers and are not chargeable with such misconduct as is specified in section 1462 of the Civil Practice Act, the award is unassailable and, disappointing though it may be to one of the parties, must be obeyed.

The judgment of the Appellate Division should be affirmed, with costs.

Chief Judge Desmond and Judges Dye, Froessel, Van Voorhis and Burke concur; Judge Foster taking no part.

Judgment affirmed.


text:
    The People of the State of New York, Respondent, v. Henry L. Kingston, Appellant.
    Argued October 18, 1960;
    decided November 30, 1960.

      Edward K. O’Shea for appellant.
    I. The court committed prejudicial error in charging the jury that the statement of defendant in evidence was a confession and in charging section 395 of the Code of Criminal Procedure. (People v. Doria, 281 App. Div. 918.) II. The court erred in submitting to the jury for its determination the crime of manslaughter in the first degree, and in failing to grant defendant’s motions at the close of the People’s case and at the close of defendant’s case to dismiss the indictment. (People v. Vollmer, 299 N. Y. 347; People ex rel. Bianculli v. McDonnell, 278 App. Div. 782; People v. Mendes, 3 N Y 2d 120; People v. Lupo, 305 N. Y. 448; People v. Odell, 230 N. Y. 481.) III. The verdict of the jury was contrary to law. (People v. Peetz, 7 N Y 2d 147; People v. Weiss, 290 N. Y. 160; People v. Carpenito, 292 N. Y. 498; People v. Orr, 270 N. Y. 193; People v. Razezicz, 206 N. Y. 249; People v. Bennett, 49 N. Y. 137.) IV. The court committed reversible error in its charge, or a lack of proper charge, on the question of the character evidence produced on behalf of defendant. (People v. Colantone, 243 N. Y. 134; Cancemi v. People, 16 N. Y. 501; Remsen v. People, 43 N. Y. 6; People v. Conrow, 200 N. Y. 356; People v. Viscio, 241 App. Div. 499.)

      Carman F. Ball, District Attorney (James L. Tippett of counsel), for respondent.
    I. The court did not charge the jury that the written statement of defendant in evidence was a confession. The charging of section 395 of the Code of Criminal Procedure was proper. (Ercoli v. United States, 131 F. 2d 354; People v. Giro, 197 N. Y. 152.) II. The court did not err in submitting to the jury for its determination the crime of manslaughter in the first degree. (People v. Vollmer, 299 N. Y. 347.) III. The verdict of the jury was in accord with the law and the evidence. (People v. Weiss, 290 N. Y. 160.) IY. The court adequately charged with regard to character evidence.
   Fuld, J.

The defendant, charged with killing his four-year-old foster son, Ronald, was indicted for first degree manslaughter. Convicted after trial of that crime in its second degree, he appealed to the Appellate Division and, following affirmance of the judgment, he was granted permission to appeal to this court.

An autopsy revealed 35 bruises on the child’s body inflicted within 24 hours of death and that he died of ‘' shock due to blood loss” resulting from a “tearing of the mesentery”. The medical testimony established that a blow or a kick to the stomach or back, or a push into a hard object, could have been the cause of death. Although, when first questioned by the authorities, the defendant denied all knowledge of how the boy had come by the fatal injury, he admitted, on being confronted with the autopsy findings, that he had struck and kicked the child. His account, given both orally and in writing to the district attorney and the police, indicates that on the morning of the death he and Ronald were alone in the house, that Ronald ‘ ‘ misbehaved ’ ’ and that he struck him ‘ ‘ with sufficient force to knock him off the toilet and onto the floor.” He then told the child, who evidently had been slow in getting dressed, to go into the bedroom to finish dressing and while there Ronald pulled some clothing off the dresser. What happened thereafter is best described by the defendant himself in his written statement: “I went into the bedroom and gave him a couple of cracks, then as he went to pick up the clothes again I pushed him away from me. He bounced off the bed and back towards me. With that I shoved him with my foot towards the bed and he struck the leg of the bed. Then I gave him his- clothes and told him to get dressed. ’ ’

The child was obviously hurt; the defendant noticed that he “ was unsteady on his feet, and looked real white ” and, after applying cold water to his head and face, he told the youngster to lie down. Unable, several hours later, to waken him, the defendant called a physician who pronounced him dead.

This story of adult rage exploding over the dawdling manner in which a four-year-old youngster dressed himself must have had a tremendous impact on the jury, and its effect must have been further heightened by the fact that it was told in the defendant’s own words. It is in the light of the forcefulness of the impression this story must have made on the jury that we examine the defendant’s principal argument for reversal, namely, that the trial judge committed prejudicial error in treating his statements as confessions.

To begin with, it appears that the trial judge avoided an express designation of the statements as confessions and referred to them throughout his charge as certain oral and written statements made by the defendant ”. Although he unnecessarily called attention to the rule that a confession is admissible “unless made under the influence of fear produced by threats ”, or upon the district attorney’s stipulation not to prosecute, and, although he might have phrased this portion of the charge more felicitously, we believe it clear that the judge was speaking in the abstract and not of the statements given by the defendant.

However, even if the instruction were to be construed as an oblique characterization of the statements as confessions, that would not constitute prejudicial error. It is quite obvious that only an exceedingly fine line separated the defendant’s highly incriminating statements from a confession and that it was the powerful impress of the statements themselves rather than any possible inference the jury might have drawn by indirection from the court’s charge that determined the course of the verdict. In other words, since the defendant’s statements were thoroughly inculpatory, in no sense protestations or expressions of innocence, the court’s asserted description of them as confessions could not, in any event, have misled the jury or prejudiced the defendant.

Errors are almost inevitable in any trial, improprieties almost unavoidable, but the presence of one or the other furnishes no automatic signal for reversal and retrial. On review, the court’s inquiry must be directed toward determining whether the claimed defect influenced the jury and tainted its verdict. If the record demonstrates that it did not, then, the defendant is not entitled to a second trial. (Code Crim. Pro., § 542; see People v. Mleczko, 298 N. Y. 153, 162; People v. Buchalter, 289 N. Y. 181, 224-225, per Lehman, Ch. J.) While we are ever intent on safeguarding the rights of a defendant (see, e.g., People v. Jackson, 7 N Y 2d 142; People v. Carborano, 301 N. Y. 39; People v. Mleczko, 298 N. Y. 153, supra), we recognize at the same time that the State has its rights too. Where error has occurred, we must cast into the balance its interest as prosecutor and, if we find that there is no likelihood that the defendant’s rights were prejudiced, we write finis to the matter. We do not approve or condone the error, but merely acknowledge — as did the Supreme Court, through Mr. Justice Cakdozo, in Snyder v. Massachusetts (291 U. S. 97, 122) —that “ justice, though due to the accused, is due to the accuser also.”

Concededly, as Wigmore has observed, “Exculpatory statements, denying guilt, cannot be confessions ”. (3 Wigmore, Evidence [3d ed., 1940], § 821, p. 240.) Where, therefore, a defendant makes a pretrial statement which is either exculpatory or, at least, consistent with innocence and such statement is introduced at trial and subsequently labeled a confession by the court, it is more than likely that the court’s action would prejudice the defendant in the eyes of the jury. Under such circumstances, the jurors’ initial comprehension of the defendant’s exculpatory statement, as well as their reaction to it, is liable to be materially altered to the defendant’s detriment by the court’s later allusion to it as a confession of guilt. The possibility of prejudice, however, varies with the degree to which the court’s description of the defendant’s statement departs from the fact. Therefore, where a defendant has made an inculpatory statement, especially where it is so incriminatory as itself to provide almost sufficient evidence to sustain a conviction, the court’s designation of it as a confession may be regarded as a mere technical misnomer. (See People v. Lewis, 282 App. Div. 267, 272; see, also, Commonwealth v. Biggs, 313 Pa. 457, 460.) Having heard the statement which virtually convicts the accused out of his own mouth, there is little chance that a subsequent technically erroneous reference to it as a confession can have a substantial effect on the jury’s verdict. The difference, after all, between a highly incriminating statement and a confession, although quite significant to a lawyer, is of slight consequence to a juror. “ Errors which loom large to a judge, learned in the law and trained to administer justice in strict accordance with the law, may be scarcely visible to the lay juror.” (People v. Buchalter, 289 N. Y. 181, 224-225, supra, per Lehman, Ch. J.)

In the case before us, the jury had heard the defendant’s own admission that he had struck his foster son “with sufficient force to knock him off the toilet and onto the floor ”, that he had thereafter given him “ a couple of cracks ”, that he had then “ pushed him ” with such force that “ he bounced off the bed ” and that, finally, he had kicked him so that he “ struck the leg of the bed.” Little, if anything, distinguishes the account which the defendant gave from a true confession, but whatever fine legal distinction may exist was, we may be well-nigh certain, without any significance in the minds of the jurors under the circumstances of this case. Having heard the defendant’s own account of the beating he had administered and, having heard that the child died a short time later of internal bleeding, it is hardly conceivable that the jurors could have been adversely affected by the trial court’s characterization, if such it was, of the defendant’s statements as confessions. In short, where, as in the case before us, guilt was proved to' the hilt, and the assertedly erroneous instruction could not have influenced the result, it may not be said that the error was harmful or that any substantial right of the defendant was prejudiced.

The judgment should be affirmed.

Chief Judge Desmond (dissenting).

Defendant’s statements were in no sense “confessions ”. In common speech as in law a confession is “an acknowledgment * * * in express terms, of the fact of guilt ”, “a direct acknowledgment of guilt made by the defendant in a criminal prosecution ” (Richardson, Evidence [8th ed.], § 331; People v. Bretagna, 298 N. Y. 323, 325, 326; People v. Harris, 306 N. Y. 345, 350). For the protection of this defendant, on trial for a repulsive crime, it was imperative that it be clear to the jury that defendant, while he had disclosed his version of the infliction of punishment on the boy, had “ confessed ” to nothing. Instead of explaining this, however, the court charged the jury as follows: “ The People have introduced into evidence certain oral and written statements made by the defendant immediately after he was apprehended, or arrested, or detained, whatever you want to call it. You are entitled to consider such statements, both oral and written, but it is for you to say whether you accept them as proof. A confession can be given in evidence, unless made under the influence of fear produced by threats, or unless made upon the stipulation of the District Attorney that the person making such confession shall not be prosecuted therefor—in other words, if he is being brought in and testifying himself, he cannot be prosecuted, he does not sign a waiver of immunity. That is what is meant by it. But it is not sufficient without additional proof that the crime charged has been committed. You can’t merely say that if a person signs a statement that he committed a certain crime, that in and of itself proves the commitment of that crime. You know, you have read a great many instances in this country, or all over the World where someone has acknowledged that, he claimed he committed a certain crime, and it was subsequently found out that the person was never within miles of the scene of the crime, could not have committed it. Therefore, the Law very carefully says that this statement or confession itself must be tied up with other proof, in order to be effective. In other words, if a person says he committed a certain crime, that he made a statement under oath, a written statement even, that he committed a certain crime and in a certain place, that in and of itself is not sufficient. There must be other proof that the crime was actually committed and that the person committing the crime or confessing the crime was in the vicinity and could have committed the crime. As I told you before, you have heard of people who have confessed to crimes that they could not have, under any circumstances, have committed. Perhaps they did it out of some desire for some gain, publicity, or because of mental disorder, or some reason. They could not have committed it, and yet they so admitted that they did. There must be other evidence to connect the defendant with the actual commission of the crime by that same person. A free and voluntary confession deserves the highest credit because it is presumed to flow from the strongest sense of guilt, but a forced confession, by fear or promise.should be given no credit.”

Defendant’s counsel excepted to this part of the charge but the court did nothing to cure the error.

We are not concerned with the correctness of abstract propositions of law. The question is: What did all that talk about confessions mean to the jury when put to them as part of the rules for deciding this particular case? The repeated references to “ confession “ confessing ”, confessing the crime ”, “ statement that he committed a certain crime ”, “ claimed he committed a certain crime ’ ’, etc., etc., were not part of a lecture on law. The jury could not dismiss them as mere generalities unconnected with this trial. In context, they must have signified to the jury that there were confessions in the case and that the jury need only decide whe.th.er the confessions were involuntary or otherwise unreliable. There was no claim that the statements were coerced, and the boy’s death from trauma was undisputed, so there was nothing for the jury to do but to convict defendant. With the issue of guilt so close (see People v. Peetz, 7 N Y 2d 147) this was a dire blow to the defense and an error most grave (see People v. Mleczko, 298 N. Y. 153,162).

As Professor Wigmore has written: “Exculpatory statements * * * cannot be confessions. This ought to be plain enough, if legal terms are to have any meaning ” (3 Wigmore, Evidence [3d ed.], § 821, p. 240). The difference was not made plain to this jury.

Entirely beside the point here are the cases cited as holding that such an error is to be disregarded. In two such decisions (People v. Doria, 281 App. Div. 918, and People v. Rhodes, 283 App. Div. 804) the judgments were reversed for this very error. In People v. Lewis (282 App. Div. 267, 272) there was no reversal since the Trial Judge had given rather careful attention to the limited value of the statement ’ ’, and the case was not a close one and the crime was clearly and fully established. The judgment in People v. Lee (4 N Y 2d 843) escaped reversal because there was no exception to the charge; the Appellate Division remarked in Lee that the trial court probably would have clarified the matter if asked to do so (4 A D 2d 770, 771). In the present case the court was asked to do so but did not.

The judgment should be reversed and a new trial ordered.

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

Judgment affirmed.

      . The mesentery is the tissue which provides the intestines with its blood supply.


author: Chief Judge Desmond. Froessel, J. (dissenting).

text:
    The People of the State of New York, Respondent, v. Herbert Wilson, Alias King Solomon Johnson, Appellant.
    Argued October 17, 1960;
    decided November 30, 1960.

      Nancy Carley for appellant.
    Section 673 of the Code of Criminal Procedure violates the due process clauses of the Constitutions of the United States and the State of New York and is unconstitutional. (People v. Prosser, 309 N. Y. 353; People v. Piscitello, 7 N Y 2d 387; People v. Bailey, 103 Misc. 366; People v. Steiger, 154 Misc. 538; Twining v. New Jersey, 211 U. S. 78; Stuart v. Palmer, 74 N. Y. 183.)

      Frank D. O’Connor, District Attorney (Benj. J. Jacobson of counsel), for respondent.
    Section 673 of the Code of Criminal Procedure is not violative of any constitutional right. (Chick v. Commonwealth of Kentucky, 140 F. Supp. 418; Wolf v. Colorado, 338 U. S. 25; Adamson v. California, 332 U. S. 46; People v. Jelke, 284 App. Div. 211, 308 N. Y. 56; People v. Steuding, 6 NY 2d 214; Palko v. Connecticut, 302 U. S. 319.)
   Chief Judge Desmond.

We must answer this question: is a defendant denied due process when, after an indictment against him has been dismissed for want of a speedy trial, he is rein-dieted for the same crime? Specifically, were this defendant’s rights infringed when, in reliance on section 673 of the Code of Criminal Procedure, he was reindicted in November, 1958 on the same charge which was the basis of an indictment against him found in January, 1955 and dismissed in December, 1957 (5 A D 2d 690) on his motion made under section 668 of the Code of Criminal Procedure, for failure of the People to bring the cause to trial?

These are the pertinent dates:

January, 1955 — defendant, then serving a prison term on an earlier conviction, was indicted with others in County Court, Queens County, for several felonies, all allegedly committed in June, 1954.

October, 1956 — defendant, arraigned on the January, 1955 indictment, moved to dismiss it on the ground that he had been denied a speedy trial; the motion was denied in November, 1956 and defendant pleaded guilty to one of the counts and was given a prison sentence (to run, in part, concurrently with his uncompleted sentence on the earlier conviction).

December, 1957 — on appeal by defendant from the second conviction, the Appellate Division, Second Department, reversed on the ground that defendant had been denied the speedy trial to which he was entitled; the order of reversal, however, contained this reservation: without prejudice to the right of the respondent to proceed as permitted in section 673 of the code, if so advised.”

• November, 1958—more than two years after he had first moved for dismissal and nearly a year after the dismissal, defendant was reindicted for the same crime alleged in the January 7, 1955 bill of indictment; a month later he moved to dismiss this new indictment because of delay; the motion was denied (15 Misc 2d 858) and defendant pleaded guilty, and in June, 1959 was given the same sentence imposed in November, 1956.

The County Judge, in denying defendant’s motion to dismiss the later indictment, intimated that the reasons stated in People v. Prosser (309 N. Y. 353) should be available for dismissing the new indictment also and should prevail over the authorization found in section 673. His conclusion was, however, that New York law “ measures the undue delay in such a case from the time the particular indictment to which the motion is addressed was found ” (15 Misc 2d 860, citing People v. Schwartz, 6 A D 2d 459). He held, therefore, that the delay of nearly three years from the handing up of the original indictment until its dismissal by the Appellate Division had no effect as to defendant’s rights under a substituted indictment because the date of the new indictment made a new starting point for any reckoning of delay. There had been, the court pointed out, no undue delay in bringing to trial the newer indictment.

The Appellate Division affirmed the judgment of conviction. The Presiding Justice wrote that it was unnecessary to decide “ whether the right to a speedy trial is such a fundamental principle of liberty and justice as to come within the due process clause ” of the Fourteenth Amendment of the Federal Constitution. He held that there is in the State a constitutional right to a speedy trial but that the right is not violated by a reindictment within the time limited by law, after the dismissal of an earlier one because of failure to accord a speedy trial. He agreed that unreasonable delay in criminal prosecutions should not be tolerated. But, referring to the question as a new one in the New York courts, he concluded that the Legislature by a series of statutes had produced a complete system whereby a pending criminal prosecution may be dismissed for delay but ‘ the filing of a new indictment, after the dismissal of a previous indictment for the same offense because of delay in bringing the accused to trial, commences a new period of time during which the prosecution may be continued.” The Appellate Division’s decision-was that the. subsequent prosecution of appellant had been authorized by these statutes and that the statutes so read are not unconstitutional.

It is true, as the Appellate Division stated, that our statutes on their face permit the result arrived at here and that in other States statutes similar to our section 673 have been held not to be denials of speedy trial rights. But each establishes its own standards of due process. New York State’s official formulation of the right of a defendant to a prompt trial is expressed in the statutes listed in the Appellate Division opinion but this group of statutes must not be so read as to defeat the fundamental right of an accused citizen to be brought to trial and to be given a fair opportunity to show his innocence. I think these statutes must be so applied as to carry out the spirit and purpose expressed in People v. Prosser (309 N. Y. 353, supra). They have not been so applied here.

Section 8 of our Code of Criminal Procedure and section 12 of the Civil Bights Law list a “ speedy and public trial ” as one of the rights of a defendant in a criminal trial. This affirmation, as our Prosser opinion (supra) points out, is no less a guarantee because not written into our State Constitution. The method of enforcement of the right is described in section 668 of the Code of Criminal Procedure under which this defendant won his dismissal, and which directs a dismissal on defendant’s motion if the defendant '‘ be not brought to trial at the next term of the court in which the indictment is triable ’ ’ and no good cause is shown for the delay. This defendant moved for and was entitled to dismissal 21 months after indictment and won a dismissal more than a year after the making of • the motion, only to be reindicted and brought to trial and to a guilty plea four and a half years after the original indictment had been found. Justification for this incongruous result is discovered in two statutes: section 673 of the Code of Criminal Procedure, which asserts that an order for dismissal ‘ ‘ is not a bar ’ ’ to another prosecution “ if the offense charged be a felony ”, and section 142 of the Code of Criminal Procedure, which sets a five-year limit for commencing prosecution of felonies.

These statutes cannot reasonably be reconciled—or, at least, they cannot all be literally applied in cases like this. If we read section 673 as complete and automatic permission for reinstatement of a felony indictment after a section 668 dismissal, we produce a result that cannot be squared with the guarantee of a speedy trial as found in the other statutes. Everyone now agrees that the right to a prompt trial is a fundamental one. The State of New York does not present a fundamental right with one hand, and take it away with the other. As Judge Fuld wrote in People v. Prosser (309 N. Y. 353, 356, supra): “ The speedy trial guarantee, preventing undue delay between the time of indictment and trial, serves a threefold purpose. It protects the accused, if held in jail to await trial, against prolonged imprisonment; it relieves him of the anxiety and public suspicion attendant upon an untried accusation of crime; and, finally, like statutes of limitation, it prevents him from being ‘ exposed to the hazard of a trial, after so great a lapse of time ’ that the means of proving his innocence may not be within his reach ’ — as, for instance, by the loss of witnesses or the dulling of memory.” The delay in the present case was almost as long as that in Prosser’s but, since a second indictment against this defendant was gotten less than five years after the crime, the long delay was held to be without sanction or remedy. Whatever may be the result under other combinations of facts, we should hold that this defendant did not get the speedy trial ” guaranteed him.

This decision does not mean that when an indictment has been dismissed for delay there can never be a reindictment under section 673. Section 668 authorizes a dismissal when the indictment is not brought on for trial at the next term of the court. There may be and probably are instances when this delay is so short that a new indictment under section 673 would be permissible without violating the Prosser rule (supra). But the delay here was extreme as it was in Prosser and just as in Prosser “ the prosecution failed to show the slightest good cause ’ for that delay ”.

As in the Prosser case, we realize that " adherence to the rule ” may " on occasion result in the discharge of one guilty of crime ” but we point out again that the result of those decisions “is merely to impose upon the officers, charged with enforcing the law and who secured the indictment, the quite reasonable, far from burdensome, duty of noticing it for trial ” (Prosser opinion, 309 N. Y., at p. 361, supra).

The judgment should be reversed and the indictment dismissed.

Froessel, J. (dissenting).

We dissent and vote to affirm. A specifically endowed constitutional right is not involved in this case. Our State Constitution does not grant an accused the right to a speedy trial. Nor is the guarantee thereof, as provided in the Sixth Amendment of the United States Constitution, a “ principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental ”, and thereby made applicable to State criminal procedures by virtue of the Fourteenth Amendment, or due process clause, of the United States Constitution (Snyder v. Massachusetts, 291 U. S. 97, 105; Wolf v. Colorado, 338 U. S. 25, 26; People v. Jelke, 284 App. Div. 211, 225, affd. 308 N. Y. 56, 62; People v. Hall, 51 App. Div. 57, 60).

In this State the right to a speedy trial is granted by statute (Code Grim. Pro., § 8). The Legislature, however, which granted that right in the first instance, has seen fit by other statutory provisions to prescribe rules for its administration by the courts, and has specifically directed the legal consequences to follow upon the exercise of that right. Thus section 668 of the Code of Criminal Procedure directs that a dismissal of an indictment may be had where a trial has not been speedily brought on. However, section 673 of the code expressly authorizes a new indictment for the same offense, where a felony is involved, notwithstanding the prior dismissal under section 668 for lack of a speedy trial. Other statutory provisions which come into play in understanding the nature and limits of the legislative grant of a speedy trial are sections 141-142 of the code, relating to limitation periods for prosecution of crimes. The undoubted purpose of these limitation periods is not different from what we stated in People v. Prosser (309 N. Y. 353, 356) underlies the statutory grant of a speedy trial.

Such is the statutory scheme. We find the varied provisions readily reconcilable, and the only fair and reasonable construction which may be accorded them is that the right to a speedy trial is qualified, not absolute on the level of a constitutional guarantee, and may be given operative effect only in the light of the limitation period prescribed by statute. Thus an accused who secures dismissal of an indictment on the ground that he was not speedily brought to trial may be indicted anew for the same crime at any time before the Statute of Limitations has run.

The import of the opinion for reversal in this case is to fashion a new limitation period for felonies, lesser than, and in contravention of, the five-year period prescribed by the Legislature. As we stated in the Prosser case {supra), one indicted for a crime and awaiting trial is subjected to the anxiety and public suspicion attendant upon an untried accusation of crime ” (309 N. Y., at p. 356). It is a cloud hanging over his head. If this cloud of anxiety and public suspicion following the indictment is prolonged because of delay in bringing the indictment to trial, the defendant is entitled to relief. The relief afforded him is removal of the cloud by dismissal of the indictment—not, however, absolute immunity from punishment or prosecution. Immunity from prosecution would follow only if the delay were so long that the Statute of Limitations had run. The one who committed the crime may, therefore, be indicted anew at any time during the limitation period. If he is so indicted and thereupon speedily brought to trial, the evil of a prolonged cloud, which had attended upon the first indictment, never recurs, and, as here, there is no injustice to be rectified. It could not be maintained, moreover, before the Statute of Limitations had run that, since the witnesses of the defendant were no longer available or their memories “dulled”, a new indictment is barred. The Legislature, in establishing limitation periods, made that clear. An indictment may be found at any time within the statutory period.

The Prosser case {supra) does not hold more than that an indictment followed by prolonged delay until trial should be dismissed. It never purported to raise the provision of section 8 to the level of an absolute constitutional guarantee, immunizing from punishment one deprived of the right to a speedy trial. As it happened in that case, a new indictment could not have been filed since more than six years had elapsed between the time of the commission of the crime and trial. Thus, once we dismissed, the five-year limitation period—not the right to a speedy trial — barred future prosecution. Moreover, no claim is made here, as was apparent in Prosser, that the District Attorney in bringing the second indictment was acting maliciously, intending to harass the defendant, or was using the criminal process as a vehicle for abuse.

In this case, the defendant Wilson was indicted in January, 1955, and the District Attorney promptly lodged a warrant against him in State prison, where he was serving time under a prior felony conviction. The Prosser case was not decided until December, 1955. Ten months thereafter, and with the Summer vacation intervening, upon application of the District Attorney, defendant was ordered produced from Auburn Prison for arraignment, whereupon his counsel moved to dismiss upon the ground that he had been denied a speedy trial. Similar motions were denied by the trial court, at which time defendant Wilson were also made by Wilson’s two codefendants. The motions pleaded guilty to attempted robbery in the third degree. His codefendants pleaded guilty to robbery in the third degree, and they did not appeal from the ensuing convictions. Upon defendant Wilson’s appeal, the Appellate Division in December, 1957 unanimously reversed and granted the motion to dismiss “ without prejudice to the right of the respondent to proceed as permitted in section 673 of the code, if so advised ”.

In November, 1958 the Grand Jury reindicted defendant. In December he moved to dismiss the indictment upon the ground that he had been denied a speedy trial upon the first indictment, and maintained that section 673 is unconstitutional. That motion was denied in February, 1959, whereupon Wilson again entered a guilty plea. He thereupon appealed from the ensuing conviction.

The foregoing analysis of the record demonstrates that the delay was by no means as extreme as it was in the Prosser case (supra), extending beyond the period of the Statute of Limitations, but was in part due to the fact that the Prosser case had not yet been decided and in part by defendant’s appeal. It is therefore quite understandable that the Appellate Division in its judgment and discretion granted defendant’s original motion to dismiss “ without prejudice ” as aforesaid.

The prevailing opinion here states that it “ does not mean that when an indictment has been dismissed for delay there can never be a reindictment under section 673 ”. But what are the criteria if not found in the statute itself? If discretion may be exercised, the Appellate Division has done so in affirming the trial court and, since we cannot say that it was an abuse of discretion as a matter of law, we have no right to reverse.

To suggest that section 668 embraces only a situation where an indictment is not brought on for trial ‘' at the next term of the court” — and nothing more — is to misread its plain language and purpose. That section merely prescribes the time when a defendant may first move for dismissal. If it gave him the right to a dismissal at that moment — in light of the time needed for preparation and the crowded calendar conditions of our criminal courts—most defendants would have to be set free. We cannot agree that a District Attorney’s oversight or neglect in bringing a defendant to trial in a felony situation such as this completely liberates the offender, although the Statute of Limitations against the People has not run its course. The great danger of decreeing such a result should be obvious. Moreover, it completely disregards the plain language of section 673.

Accordingly, the judgment appealed from should be affirmed.

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

Judgment reversed, etc.


author: Fuld, J. Froessel, J. (dissenting).

text:
    Mannie Feder, Doing Business as Beam Music Co., Respondent, v. Frank Caliguira, Doing Business as Frank’s Pizzeria and Restaurant, Appellant.
    Argued October 13, 1960;
    decided November 30, 1960.

      Jesse B. Hecht for appellant.
    I. From the history of the legislation it is obvious that the statute was designed to prevent a businessman from being tied down by an automatic renewal clause in the absence of a separate and distinct written notice of the existence of such a provision in the contract. II. The contention that section 399 of the General Business Law applies only to an agreement which creates a landlord and tenant relationship so that there is a “ lease ” in the strict sense of the word is without merit. (Hyland v. Paul, 33 Barb. 241; Zule v. Zule, 24 Wend. 76; Crosdale v. Lanigan, 129 N. Y. 604; Cartwright v. Maplesden, 53 N. Y. 622; Wash-O-Matic Laundry Co. v. 621 Lefferts Ave. Corp., 191 Misc. 884; Halpern v. Silver, 187 Misc. 1023; Greenbro Coin Meter Corp. v. Basch, 205 Misc. 853; Muller v. Concourse Investors, 201 Misc. 340; Kaypar Corp. v. Fosterport Realty Corp., 1 Misc 2d 469, 272 App. Div. 878.) III. The public policy of this State against prolonged automatic renewals is manifest. (Peerless Towel Supply Co. v. Triton Press, 3 A D 2d 249; Melodies v. La Pierre, 4 A D 2d 982.) IV. The method of the calculation or computation of the payment of rent has never transformed a lease into some other type of relationship. (Whiting v. Hood, 42 Hun 651; Smith v. Hubert, 83 Hun 503; Livingston v. Miller, 11 N. Y. 80.)

      Aaron D. Bernstein and Charles E. Bernstein for respondent.
    I. This agreement is not a lease within the purview of the statute. (Wash-O-Matic Laundry Co. v. 621 Lefferts Ave. Corp., 191 Misc. 884; Halpern v. Silver, 187 Misc. 1023; Kaypar Corp. v. Fosterport Realty Corp., 1 Misc 2d 469, 272 App. Div. 878; Greenbro Coin Meter Corp. v. Basch, 205 Misc. 853; Muller v. Concourse Investors, 201 Misc. 340; Melodies v. La Pierre, 4 A D 2d 982; Melodies v. Mirabile, 4 Misc 2d 1062, 7 A D 2d 783.) II. This type of agreement is not part of the evil intended to be remedied by the statute. III. The statute is in derogation of the common law and should be strictly construed. IV. The automatic renewal clause is not against the public policy of this State. (Straus & Co. v. Canadian Pacific Ry. Co., 254 N. T. 407.) V. There is no controlling precedent in the interpretation of this statute, except the decision below. (Peerless Towel Supply Co. v. Triton Press, 3 A D 2d 249; Melodies v. La Pierre. 4 A D 2d 982.)

      . Specifically, it was stipulated that Feder was to receive the first $20 realized each week from the machine; Caliguira was to receive the next $20 up to $40 and, of sums over $40, each was to share “50/50”.

   Fuld, J.

In September of 1955, the defendant Caliguira, operating a pizzeria and restaurant in Brooklyn, entered into a written contract with the plaintiff Feder providing for the installation in his premises of an automatic coin-operated phonograph, a juke box, for the duration of [the] agreement and any renewal term thereof ”. The agreement provided for the parties to share the gross proceeds of the machine’s operation, placing the proprietor under no financial burden, his only obligation being to keep the juke box connected to an electric outlet on the premises, ‘ ‘ in readiness for operation during all business hours ’ ’ and ‘ ‘ to furnish the necessary electric current for * * * [its] operation ’'.

The contract was for a period of three years, it being recited, however, that it “ shall renew itself automatically for like periods, at the same terms and conditions, unless either party gives to the other written notice of its intention to cancel said agreement, by registered mail, at least thirty days prior to the expiration of this agreement or any renewal period thereof.” The three-year term expired on September 10, 1958. Neither party gave notice of termination and, when Caliguira ' ‘ ordered ’ ’ Feder to remove the machine from his store unless he paid him a $500 bonus, the latter instituted this suit in the Municipal Court for damages for breach of contract, on the theory that the agreement had been automatically renewed for another three years.

The defendant interposed a general denial and then moved for summary judgment. It was his position that section 399 of the General Business Law rendered the automatic renewal provision of his contract with the plaintiff inoperative because the notice required by the statute, calling the “ lessee’s ” attention to the existence of that provision, was not given and that, therefore, his contract terminated upon the expiration of the initial three-year period, on September 10, 1958. The plaintiff having made a cross motion for summary judgment, the Municipal Court granted the plaintiff’s motion and denied the defendant’s. Appeals followed to the Appellate Term and the Appellate Division; the Appellate Term reversed both orders, granting the defendant’s motion for summary judgment and denying the plaintiff’s, but the Appellate Division modified the Appellate Term’s order to the extent of denying summary judgment to the defendant. Stated more simply, the Appellate Division decided that neither party was entitled to summary judgment and that there should be a trial. The defendant alone sought leave to appeal and, in granting his application, the Appellate Division certified for our consideration the question whether section 399 of the General Business Law is applicable to the agreement between the parties.

The answer to this question depends, of course, upon whether that agreement may be deemed a “ lease ” of personal property within the compass of section 399. We agree with the Appellate Division that it may not be so regarded. There are signposts here clearly indicating that the word “lease ” as used in the statute was intended to denote solely and exclusively the usual and ordinary lease arrangement whereby one party gives np his control and possession of property to another in return for the latter’s undertaking to pay rent for its use.

As to the meaning of the word “ lease ”, it is of some consequence that, when the Legislature enacted section 399, the decided cases — dealing, of course, with different issues—were to the effect that agreements somewhat similar to the one before us, involving coin-operated washing machines, may not be considered or treated as leases. (Cf. Wash-O-Matic Laundry Co. v. 621 Lefferts Ave. Corp., 191 Misc. 884; Halpern v. Silver, 187 Misc. 1023; Kaypar Corp. v. Fosterport Realty Corp., 1 Misc 2d 469, affd. 272 App. Div. 878; Muller v. Concourse Investors, 201 Misc. 340.) It is a fair deduction that the Legislature did not intend a meaning for the term “ lease ” in section 399 different from that already given it by the courts. (McKinney’s Cons. Laws of N. Y., Book 1, Statutes, § 75; see, also, People v. Richards, 108 N. Y. 137, 146-147; Matter of Arundel Corp. [Corsi], 273 App. Div. 399, 405.)

It is the transfer of absolute control and possession of property at an agreed rental which differentiates a lease from other arrangements dealing with property rights. The mere fact that the agreement before us twice refers to the defendant as “ lessee ” does not, of course, transform it into a lease. (See, e.g., Matter of New York World-Tel. Corp. v. McGoldrick, 298 N. Y. 11, 18; Reynolds v. Van Beuren, 155 K. Y. 120, 123.) As this court said in the World-Telegram case (298 N. Y., at p. 18), we must look to the rights it [the agreement] confers and the obligations it imposes ” in order to determine the true nature of the transaction and the relationship of the parties.

Looking to the actual terms of the agreement in this case, it is plain that it is not a lease. Of high significance is the fact that the defendant proprietor pays no rent for the juke box, but rather shares in the gross receipts earned by the plaintiff company from its use. Were this a lease of the machine, the defendant would be required to pay rent for its use instead of deriving profit therefrom. The very fact that he shares with the owner of the juke box in the latter’s receipts demonstrates that he is being paid by the owner for allowing him to place it in his store and negates the possibility that the juke box is being leased by the plaintiff to the defendant. In short, what serves to differentiate the agreement before us from a lease is not, as suggested, that percentage payments are involved—for, of course, rent may be based on a percentage of a tenant’s gross receipts — but that no rent obligation whatsoever is imposed on the defendant. Indeed, in the present case, the defendant, who claims to be a lessee, is actually sharing in the receipts realized by the “ lessor ” from the latter’s own machine!

The possibility that the agreement reflects a lease transaction is also negated by other terms contained in it. The contract provides that ‘1 the automatic coin operated phonograph and the contents thereof, are and shall continue to be the sole property of the Company ” and that the Proprietor agrees to keep the [machine] connected to an electric outlet in his premises and in readiness for operation during all business hours ”. The proprietor himself is given neither the use of the machine, the right to control its use nor any other form of dominion over it. A lease of property in which the lessee has no right either to use the property or to control its use is an unheard of legal conception.

It is clear, then, that the agreement between these parties is not a “ lease ’ ’ within any ordinary or usual sense of the term. It is equally plain that the automatic renewal provisions of the agreement are not anything like those which stimulated the Legislature to enact section 399. The evil aimed at was the infliction of continuing and, at times, heavy financial burdens upon unwary businessmen by means of automatic renewal clauses. (See Memorandum of Assemblyman Savarese, the bill’s sponsor, N. Y. Legis. Annual, 1953, pp. 61-62; see, also, Peerless Towel Supply Co. v. Triton Press, 3 A D 2d 249.) The situation which the Legislature must have had in mind was the typical lease of personal property, in which the owner of the articles transfers their use and possession in return for a stipulated rental that the lessee is under a continuing obligation to pay. (See, e.g., Peerless Towel Supply Co. v. Triton Press, 3 A D 2d 249, supra.) The Legislature was concerned with the unfairness of binding the lessee to a “ renewed ” term and forcing him to pay the rental for such renewed term even though he may not have known about the automatic renewal clause or may have forgotten about it.

The agreement here under consideration imposes no such onerous financial burden or obligation upon the defendant. The plain fact is that he made no promise to pay any rental or any other sum and this factor alone differentiates the ‘ ‘ lease ’ ’ covered by section 399 from the business arrangement before us. (See, also, N. Y. Legis. Annual, 1953, supra, p. 62, in which Assemblyman Savarese instances a water cooler rented to a business office.) He and the plaintiff simply agreed to divide the gross proceeds between them and, if the juke box earned nothing, the defendant was under no duty to pay anything. True, as the defendant notes, he had to provide space for the machine and pay for the electric current used when it was in operation. But the imposition of such a minimal obligation, if it be an obligation at all, during the renewal term was not the evil which our law-making body sought to eliminate by enacting section 399 of the General Business Law.

The order of the Appellate Division denying the defendant summary judgment should be affirmed, with costs, and the certified question answered in the negative.

Froessel, J. (dissenting).

We dissent and vote to reverse. In our opinion, the agreement before us is tantamount to a lease of the juke box and comes within the scope of section 399 of the General Business Law. In the first place, the parties themselves unquestionably considered their relationship as one of lessor-lessee, since the agreement twice refers to defendant as the lessee ”. Although we recognize that this fact does not automatically make the agreement a lease (Matter of New York World-Tel. Corp. v. McGoldrick, 298 N. Y. 11, 18), the construction placed upon the language by the parties themselves is a consideration of great importance (Insurance Co. v. Dutcher, 95 U. S. 269, 273; Woolsey v. Funke, 121 N. Y. 87, 92; 2 New York Law of Contracts, § 804). We “ have no right, under the guise of construction, to excise from the * * * agreement the rights and obligations of the parties as defined by them, nor may we add thereto (Friedman v. Handelman, 300 N. Y. 188,-194).” (Delancey Kosher Restaurant & Caterers Corp. v. Gluckstern, 305 N. Y. 250, 257.)

Here, the parties interpreted their own relationship, thus evidencing to us their intention and expressing their intention by what they wrote (Raleigh Associates v. Henry, 302 N. Y. 467, 473). Moreover, the word “lessee”, as expressly used in the contract when referring to defendant, was twice inserted in handwriting in the original agreement. Even though it were assumed that there is some doubt or uncertainty as to the printed portion, it is well settled that that which is written should control the interpretation of the instrument (Heyn v. New York Life Ins. Co., 192 N. Y. 1, 6).

Secondly, an essential element of a lease is the transfer of control and possession of property real or personal at an agreed rental. Percentage rentals are extremely common today and are used for a variety of purposes (see Tuttle v. W. T. Grant Co., 6 N Y 2d 754; Mutual Life Ins. Co. of N. Y. v. Tailored Woman, 309 N. Y. 248; McMichael & O’Keefe, Leases, Percentage, Short and Long Term). Whether the percentage rental is based on the income from the use of real estate or personal property, it is nevertheless deemed rental. Here, defendant was required to pay the first $20 income from the juke box weekly plus a percentage of the .remainder; but that was not all. Just as the lessee of real estate may be required to pay, in addition to a percentage rental, interest on mortgages, taxes and assessments and other charges as part of the total rental, so here defendant was required under the agreement to assume many other obligations.

These obligations, by no means inconsiderable, translated in value to the plaintiff, and equivalent to additional rental, at the tenant’s direct cost, are as follows:

(1) to provide space for the juke box, a sizable instrument, for which space defendant had to pay rent;

(2) to pay for the electric current;

(3) to maintain the juke box in readiness for operation during all business hours;

(4) defendant was not permitted to install any other phonograph or device for the transmission of music in any part of the premises during the term of the agreement;

(5) he was also bound to arrange for assumption of the agreement by any purchaser of the business, which might well affect the selling price and, should he fail to procure such assumption, he would be in breach and liable for damages.

In Melodies, Inc., v. Mirabile (4 Misc 2d 1062, mod. 7 A D 2d 783) defendant was held liable for substantial damages as a result of a breach of a four-year contract, said breach consisting of his sale of the business without securing the assumption of a similar agreement by the vendee.

These obligations are substantial considerations furnished by the defendant for the benefit of the plaintiff, so that the latter may receive his share in the nature of a percentage rental, and all taken together constitute the aggregate rental. The purpose of the statute is to protect a person such as defendant here from continuing responsible under these obligations involving payments of money and otherwise as hereinbefore mentioned.

Moreover, the nature of the arrangement entered into by the parties in the instant case, together with the language employed by them in describing their relationship, leaves no room for doubt that it is the type of business contract ” at which section 399 of the General Business Law was aimed. So Assemblyman Savarese, the sponsor of the statute in effect stated: ‘ ‘ This bill seeks to protect all businessmen from fast talking sales organizations armed with booby traps which they plant in business contracts involving equipment rentals * * *. Undoubtedly,'many unsuspecting small businessmen are taken in by. such evil practices which—taken collectively—are costing those who cannot afford it many thousands of dollars yearly. The automatic renewal clause was eliminated from landlord leases (see Real Property Law, § 230). It should be outlawed in business contracts, too. ” (N. Y. Legis. Annual, 1953, pp. 61-62; emphasis supplied.) Since the section is remedial in nature, designed to protect the unwary, its construction should be liberal and ‘ ‘ nice distinctions as to whether this is a ‘ service should not derogate from the fact that there was sufficient in the nature of the arrangement and the words of the agreement to bring these cases within the scope of section 399.” (Peerless Towel Supply Co. v. Triton Press, 3 A D 2d 249, 251.)

In Melodies, Inc., v. La Pierre (4 A D 2d 982), a case also involving an automatic music service contract, the court stated that section 399 ‘ may properly be held applicable to a service contract of [this] type ”. However, since the automatic renewal clause became operative prior to the effective date of the statute, it could not there be given effect.

It is not correct to say that defendant has neither the use nor the right to control the use of the juke box nor any other form of dominion over it. Who else would use the juke box but he and Ms customers, and their use is Ms use. Moreover, by the express terms of the contract, he is required to maintain the juke box in readiness for operation during all business hours and to furnish it with electric current. Furthermore, plaintiff agreed ‘ ‘ to supply records and replace parts that have been damaged as a result of ordinary wear and tear without any cost to the ” defendant, thus clearly implying that defendant would be responsible for any other damage, since the machine was in his custody and control.

Finally, the cases cited in the forepart of the prevailing opinion are in nowise apt. They deal with entirely different issues, as that opinion concedes. The question involved in those cases was whether a lease of real property was created, and has no reference to situations embraced within what is now section 399 of the General Business Law. The issue of automatic renewal was in nowise involved. In the recommendation made by the sponsor of section 399, there was not the slightest reference to these cases. As already noted, the statute was aimed at “ business contracts ” costing those who cannot afford it — ‘ ‘ taken collectively ’ ’ — many thousands of dollars yearly. There is no suggestion that a particular individual must suffer a heavy financial burden.

Accordingly, the order of the Appellate Division denying defendant’s motion for summary judgment should be reversed, the motion should be granted, and the certified question answered in the affirmative, with costs.

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

Order affirmed, etc.

      . Section 399 reads: “No provision of a lease of any personal property which states that the term thereof shall be deemed renewed for a specified additional period unless the lessee gives notice to the lessor of his intention to release the property at the expiration of such term, shall be operative unless the lessor, at least fifteen days and not more than thirty days previous to the time specified for the furnishing of such notice to him, shall give to the lessee written notice, served personally or by mail, calling the attention of the lessee to the existence of such provision in the lease.”


author: Froessel, J.

text:
    Glens Falls Insurance Company, Appellant, v. Glenn Wood, Respondent.
    Argued October 14, 1960;
    decided November 30, 1960.

      Edward F. Layden for appellant.
    I. The judgment obtained in the action brought by Lorraine Wood against Isaac Wood and Barry S. Botman is conclusive as against defendant herein, Grlenn Wood. (Ocean Acc. & Guar. Corp. v. Hooker Electro

      chemical Co., 240 N. Y. 37; Traub v. Dinzler, 309 N. Y. 395; Gorham v. Arons, 282 App. Div. 147, 306 N. Y. 782; Oceanic Steam Nav. Cco. v. Campania Transatlantica Espanola, 144 N. Y. 663; City of Rochester v. Montgomery, 72 N. Y. 65; Prescott v. Le Conte, 83 App. Div. 482, 178 N. Y. 585; Hinchey v. Sellers, 7 N Y 2d 287; Village of Port Jervis v. First Nat. Bank of Port Jervis, 96 N. Y. 550.) II. Plaintiff’s right of subrogation extends to this cause of action and the policy provisions relating to the definition of the word “ insured ” do not defeat this right.

      George H. Wein for respondent.
    I. The case at bar lacks two elements which are essential to the common-law doctrine of vouching in, to wit: notice offering control of the defense in the original action, and notice from defendant in the original action to defendant in the instant action. (Hartford Acc. & Ind. Co. v. First Nat. Bank & Trust Co., 281 N. Y. 162.) II. The doctrine of vouching in should not be enlarged upon or extended. (Hinchey v. Sellers, 7 N Y 2d 287.)
   Froessel, J.

Plaintiff, on February 5, 1955, issued a liability policy on the automobile of one Isaac Wood, the father of defendant herein, Glenn Wood. On February 20, 1955, while operating that automobile with the consent, but in the absence, of his father, defendant was involved in a collision, and his wife, a passenger in the vehicle at the time, was injured. The injured wife brought suit against the father, Isaac Wood, and the driver of the other automobile involved in the collision, and recovered damages in the sum of $500 against the father only. The defense of that action, on behalf of the elder Wood, was undertaken by plaintiff insurance company. It is conceded that the jury therein found that defendant had negligently operated his father’s vehicle, and the latter was held liable, by virtue of his ownership of the vehicle, under section 59 of the Vehicle and Traffic Law. Plaintiff insurance company paid the judgment awarded.

In this action, plaintiff, as subrogee of the father, Isaac Wood, sues defendant to recover the amount paid the latter’s wife in satisfaction of her judgment. Defendant for purposes of the present action denies that he was negligent. It is contended by plaintiff, however, that the finding in the first action as to the negligent operation of the vehicle by defendant is conclusive for the purposes of this action, that defendant is now estopped ‘ ‘ to deny” its “binding effect”, and, in consequence, summary judgment on the subrogated claim involved herein should be had in its favor. According to plaintiff, defendant was vouched into the first action by virtue of certain alleged notices given him by it as to the pendency thereof •—- after plaintiff had unsuccessfully endeavored (against the will of the insured father) to implead defendant in said action.

The decisions of this court in Hartford Acc. & Ind. Co. v. First Nat. Bank (281 N. Y. 162) and American Sur. Co. of N. 7. v. Diamond (1 N Y 2d 594) are dispositive of this appeal. In the Hartford case we announced the rule that “ A named defendant who would have another (not yet a party) bound by judgment in an action must by proper notice offer to him control of the defense of the litigation.” (281 N. Y., at p. 168; emphasis supplied.) We held that the “ limit's ” or scope of the doctrine of vouching in, or conclusiveness of judgments, as thus set forth, should neither be enlarged nor extended.

Our decision in the American Surety case {supra) conclusively demonstrates that plaintiff herein is without the ambit of the doctrine. Neither the co-operation nor the subrogation clause of the policy, as we held, conferred the status and rights of a “ named defendant ” upon the insurer as to parties outside of the first action who might possibly be liable over to the insured. The status of the insurer at the time of the first action was merely that of a potential subrogee, whose rights as subrogee had not as yet matured and would not mature until such time as a judgment rendered against the insured was paid in full by it. Even apart from the provisions of the policy, the equity of subrogation does not arise until payment in full is made by the potential subrogee (McGrath v. Carnegie Trust Co., 221 N. Y. 92, 95; American Sur. Co. of N. Y. v. Palmer, 240 N. Y. 63, 66-67; American Sur. Co. of N. Y. v. Gerold, 255 App. Div. 285, 287). Plainly, if the process of impleader is reserved to the actual defendant in an action, and his insurer cannot share in that right, the same rule must apply to the common-law counterpart and antecedent of statutory impleader, namely, ‘' vouching in ”. Plaintiff cannot evade the force of our decision in the Americcm Sur. Co. of N. Y. v. Diamond case {supra) by resort to the doctrine of ‘ ‘ vouching in ” or conclusiveness of judgments.

The eases upon which plaintiff relies in support of its position are indecisive and inapt. They are those which we stated in the Hartford case (281 N. Y. 162, 169, supra) demonstrate the “ Vexations inherent in the practice ” of vouching in, and provoke ‘ ‘ controversy as to the adequacy of notice and opportunity to defend ”. But, aside from this, in all of them the party seeking to avail himself of the doctrine was a true party defendant in the first action, who had full power and opportunity to offer control of the defense to the vouchee (see Oceanic Steam Nav. Co. v. Campania Transatlantica Espanola, 144 N. Y. 663; City of Rochester v. Montgomery, 72 N. Y. 65; Prescott v. Le Conte, 83 App. Div. 482, affd. 178 N. Y. 585; see, also, Village of Port Jervis v. First Nat. Bank of Port Jervis, 96 N. Y. 550). Neither does the case of Hinchey v. Sellers (7 N Y 2d 287) help plaintiff. There, not only did the parties against whom the defense of collateral estoppel was invoked have full opportunity to, and did in fact, litigate the issue of consent in the first action, but were also actual parties therein {id., at p. 294).

Finally, as (then) Presiding Justice Foster pointed out in the Appellate Division, the result, which plaintiff herein seeks, could have been accomplished by inserting in the co-operation clause of the policy the right to compel the institution of a third-party action against the driver of the automobile. That which it could easily have achieved by simple contract cannot be done by unwarranted extension of the vouching in doctrine, and in defiance of our holding in the American Sur. Co. of N. Y. v. Diamond case {supra).

In view of our determination, it is unnecessary to decide whether the notice and opportunity allegedly extended defendant to control the defense of the first litigation were adequate.

Accordingly, the order of the Appellate Division should be affirmed, with costs, and the question certified answered in the affirmative.

Chief Judge Desmond and Judges Dye, Fuld, Van Voorhis and Burke concur; Judge Foster taking no part.

Order affirmed, etc.