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regularly and in exact compliance with the statute. Then there must have been public hearings before the commission between March 10 and June 2, 1916, and public hearings before the board of estimate and apportionment between June 2 and July 25, 1916, when the building zone resolution was adopted.

The act authorizing the zoning of the city was passed more than two years before the contract was signed. That the act was to be put in effect was open and notorious. The final report of the commission had been delivered to the board of estimate and apportionment 27 days prior to the signing of this contract. The slightest investigation would have shown that the action of the board was imminent, and also would have disclosed the fact that the Fifty-Eighth street property was within the district restricted to residence purposes. If this restricted use interfered with the purposes for which the defendant desired the property, the failure to provide against it in the contract must be chargeable to its own inattention and neglect.

Nor can it be claimed that the building zone resolution was an incumbrance on the property, so that it would render the title unmarketable. The law authorizing the division of the city into building zones was an exercise of the police power of the state, and all property is subject to such restrictions as the state in its sovereign power may deem necessary for the health, safety, or morality of the people. Under this power, laws have frequently been passed regulating the materials which shall be used in buildings, prescribing the height of buildings, and prohibiting the erection of buildings for certain purposes within specified districts. Lands are held and contracts with respect thereto are made with the knowledge of and subject to this power in the state to regulate the use of the property. This regulation means that the owner is required to exercise his right in conformity with the demands of public welfare, while at the same time he is left in the substantial enjoyment of his property with its essential incidents. That a valid regulation under the police power does not create an incumbrance, or render the title unmarketable, follows as a necessary conclusion; for, if it did, it would be a taking of the property without compensation, and would for that reason be void. Forster v. Scott, 136 N. Y. 577, 32 N. E. 976, 18 L. R. A. 543. In the case of Anderson v. Steinway & Sons, supra, Justice Scott stated:

"So, if defendant had contracted to buy the property in question here after the so-called zoning resolution had been adopted by the board of estimate and apportionment, and had become a part of the public law, it may well be that it could not be heard to object to taking title because of the restrictions imposed upon the use of the property by such resolution."

We have above pointed out the distinction between the present case and the Anderson Case in this regard-that the proof in this case showed that the right to regulate had been conferred on the municipal authorities long prior to the making of this contract, and that this specific regulation was so notorious and imminent that the parties were chargeable with notice of it, and must be held to have contracted with this regulation in mind. Hence they are in the same position as though the contract had been made after the zoning resolution was passed.

(182 N.Y.S.)

The only case which, to my knowledge, holds a valid regulation under the police power to create an incumbrance on property which would excuse performance of a contract made after the enactment of the regulation, is Lincoln Trust Co. v. Williams Building Corporation, 183 App. Div. 225, 169 N. Y. Supp. 1045, recently decided by a three to two vote of my Associates, and which, for the reason above stated, I cannot accept as controlling.

In my opinion, on the 1st day of August, 1916, the plaintiffs and Mrs. Flagg tendered deeds which conveyed the property to the defendant in exact conformity with the terms of the written contract. The refusal of the defendant to accept the tender and perform on its part was unjustified.

At the time of the trial, the excuse that the defendant had given for refusing to perform had been removed. On March 23, 1917, the board of estimate and apportionment modified the building zone resolution by changing Fifty-Eighth street between Sixth and Seventh avenues from a residential to a business district. The plaintiffs thereupon served a supplemental reply, setting up this fact. The defendant did not serve a supplemental answer, alleging changes of condition which might relieve it from being at this time compelled to perform. As the case stood at the opening of the trial, therefore, the condition was as follows: The plaintiffs were demanding specific performance of the contract. The defendant had set up the restriction on the use of the Fifty-Eighth street property by the building zone resolution, claiming that by reason thereof the plaintiffs could not perform the contract, but that the defendant was at the time of closing title and still is ready and willing to perform. The objection to the title had been abrogated. It was stipulated on the trial that the plaintiffs and Mrs. Flagg have at all times been ready and willing to deliver to the defendant the deeds of the respective properties in the form provided in their respective contracts, duly executed and acknowledged by them, respectively, and with proper revenue stamps attached to the deeds, upon the payment of the balance of the purchase price. Therefore it was not necessary to make a further tender of performance. If the zoning resolution was to be deemed an incumbrance, it had been removed at the time of the trial.

It is well settled that a purchaser will be required to perform specifically, if the title is good at the time of the trial, even though defective at the time fixed for the performance of the contract. Baldwin v. Salter, 8 Paige, 473; Dutch Reformed Church v. Mott, 7 Paige, 77, 85, 32 Am. Dec. 613; Brown v. Haff, 5 Paige, 235, 241, 28 Am. Dec. 425; Jenkins v. Fahey, 73 N. Y. 355, 359; Schmidt v. Reed, 132 N. Y. 108, 30 N. E. 373; Haffey v. Lynch, 143 N. Y. 241, 38 N. E. 298; Pakas v. Clarke, 136 App. Div. 492, 493, 121 N. Y. Supp. 192, affirmed, 203 N. Y. 534, 96 Ñ. E. 1124. In such cases performance is decreed as of the date of the judgment, or as of the time when the defect was cured, and not of the original date of closing the title under the contract. The prevailing opinion acknowledges the rule, but says it should not be given effect, because of changed conditions; not that the defendant has purchased other property, but because it would now, 182 N.Y.S.-8

owing to the advance in the cost of materials, find it more expensive to build, and, if it desired to borrow money for building, it would find it difficult. No such defense was pleaded, but the court felt it would be inequitable under such circumstances to enforce the contract, and has denied the plaintiffs relief, and adjudged a lien upon the premises for the amount of the down payment, and directed a foreclosure and sale. Why a court of equity should feel moved to these extremes in behalf of this defendant is beyond my comprehension. The plaintiffs have ever been ready, willing, and able to carry out the contract according to its exact terms. In order to be able to do so, it was necessary that the premises be vacated by its occupants.

The plaintiffs expended the sum of $7,533.32 in securing the surrender of unexpired leases of premises 109 and 111 West Fifty-Seventh street and in moving and storing goods of plaintiffs from 113 West Fifty-Seventh street. To secure another residence for their occupancy, they entered into a lease of another residence for a term of five years at an annual rental of $7,000. At the time of the signing of the contract there were certain mortgages upon the plaintiffs' premises, which were not due until dates subsequent to that fixed for closing of title, which defendant required to be satisfied prior to the delivery of the deed. In order to be in position to carry out the terms of the contract, the plaintiffs were required to and did pay additional interest and expenses, amounting to $1,005.42. The plaintiffs also became and are obligated to pay the usual broker's commission upon the sale in the sum of $2,800. This loss they must bear, and in addition return the down payment with interest. Because, first, the purchaser intended to use the property for a purpose not disclosed by the contract, which use was about to be prohibited under authority of existing law; and if the ability to make such use of the property had been made a condition precedent to the taking of title, the sellers might, and, as the fact of the impending imposition of the restriction was notorious, in all probability would, have declined to sign the contract. Second, because the conditions as to material and money market have changed-a defense of doubtful potency, if pleaded, but which was not even pleaded. In my opinion, such a result is contrary to the cquities of the case.

The judgment should be reversed, with costs, and a specific performance of the contract decreed as of August 1, 1916, with costs.

SMITH, J., concurs in result.

(191 App. Div. 708)

(182 N.Y.S.)

PEOPLE v. BROWN.

(Supreme Court, Appellate Division, Second Department. May 7, 1920.) Receiving stolen goods 7 (6)—Purchasing property, without inquiring as to seller's right to sell, not offense.

Where, under an information charging the receiving of stolen property, knowing it to have been stolen, the evidence showed that defendant was a junk dealer, and bought the metal alleged to have been stolen without ascertaining by investigation that person selling it had a legal right to do so, contrary to Penal Law, § 1308, a judgment of conviction must be reversed, since one crime was charged, and a distinct and purely statutory crime was proven.

Appeal from Court of Special Sessions of New York County. Philip Brown was convicted of receiving stolen property in the second degree, and he appeals. Reversed, and new trial ordered.

Argued before JENKS, P. J., and RICH, BLACKMAR, KELLY, and JAYCOX, JJ.

Joseph Weber, of New York City (Abraham Harawitz, of New York City, on the brief), for appellant.

Harry G. Anderson, Asst. Dist. Atty., of Brooklyn (Harry F. Lewis, Dist. Atty., of Brooklyn, on the brief), for the People.

JAYCOX, J. The evidence in this case failed to support the information. The information was the ordinary information for receiving stolen property knowing the same to have been stolen. The evidence, on the contrary, tended to show that the defendant was a dealer in junk, and that he bought metal in the form of ingots without ascertaining by diligent inquiry that the person selling or delivering the same had a legal right so to do, contrary to the provisions of section 1308 of the Penal Law (Consol. Laws, c. 40). That it was for the crime last described of which the defendant was convicted, and not the ordinary receipt of stolen property with knowledge that it was stolen, is made evident by the court's ruling upon the defendant's motion to dismiss the information at the close of the people's case. This motion was based upon a lack of proof of the knowledge of the defendant that the property had been stolen. The district attorney then asserted:

"There doesn't have to be. The law says they must diligently inquire and find out whether they have the right to sell these things to junk dealers.

"The Court: The Code prescribes just what the defendant must do when he purchases certain metal. He buys at his peril unless he makes such inquiry. The motion is denied."

A motion was then made to dismiss on the ground of variance, and this was denied.

Upon the argument of this appeal the learned district attorney did not attempt to escape the conclusion that the defendant had been convicted under that portion of section 1308 of the Penal Law which forbids a dealer in or collector of junk to buy or receive any metal in the form of ingots, bars, etc., without ascertaining by diligent in

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

quiry that the person selling or delivering the same has a legal right to do so. His contention is that the conviction is justified under People v. Sullivan, 173 N. Y. 122, 65 N. E. 989, 63 L. R. A. 353, 93 Am. St. Rep. 582, People v. Schermerhorn, 203 N. Y. 57, 96 N. E. 376, People v. Wolter, 203 N. Y. 484, 97 N. E. 30, People v. Friedman, 205 N. Y. 164, 98 N. E. 471, 45 L. R. A. (N. S.) 55, and People v. Giusto, 206 N. Y. 67, 99 N. E. 190. Those cases held that, under an indictment charging murder in the first degree in the common-law form, the prosecution may establish that the killing was done with premeditation and intent to effect the death of the person killed, or that it was done in the commission of a felony without intent to kill. The distinction between those cases and the present case is that a killing of a human being under any of the circumstances mentioned constituted the crime of murder at common law. Therefore, having charged in the indictment murder in the common-law form, the prosecution was entitled to prove its commission in any of the methods recognized by the common law.

The same rule, however, does not apply when the acts charged as a crime constitute a crime at common law, but the proof offered is of acts which did not constitute a crime at common law. This distinction, I think, is made clear in People v. Dumar, 106 N. Y. 502, 13 N. E. 325. The defendant in that case was indicted in the common-law form for grand larceny. The indictment charged that the defendant "unlawfully and feloniously did steal, take, and carry away." The proof established that the crime of grand larceny was committed by obtaining the property in question by means of false representations and a false writing. The Court of Appeals held this to be a fatal variance. The indictment was held to be good at common law. The court, however, said (106 N. Y. at page 507, 13 N. E. 326):

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"Under the former system a substantial distinction was recognized between the crimes of larceny and false pretenses. In order to constitute larceny, there must have been a taking of personal property against the will of the owner. The other offense could not be confounded with it. In either case the property may have been obtained by artifice or fraud; but if in one the owner intended to part with his property absolutely, and to convey it to the defendant, but in the other intended only to part with the temporary possession for a limited and specific purpose, retaining the ownership in himself, the latter case would be larceny, but the former would not. It was therefore uniformly held that if a person, through the fraudulent representations of another, delivered to him a chattel, intended to pass the property in it, the latter could not be indicted for larceny, but only for obtaining the chattel under false pretenses."

In the present case the crime charged in the information, receiving stolen goods knowing the same to have been stolen, was an offense at common law. Bishop, New Criminal Law, 699. The offense of which the defendant has been convicted is purely statutory. The reasons for this legislation are clearly set forth in People v. Rosenthal, 197 N. Y. 394, 399, 90 N. E. 991, 46 L. R. A. (N. S.) 31. Section 1308 of the Penal Law treats generally of receiving stolen or wrongfully acquired property, but under its provisions the crime therein mentioned may be committed in two ways, one of which was recognized by the common law and the other was unknown to the common law.

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