author: Fuld, J. Desmond, J. Froessel, J.

text:
    In the Matter of United Press Associations et al., Appellants, against Francis L. Valente, Individually and as Judge of the Court of General Sessions of the County of New York, Respondent.
    Argued November 16, 1953;
    decided December 31, 1954.

      Thomas A. Diskin, Harry H. Van Alcen, C. Coudert Nast and William E. Flannery for United Press Associations, appellant.
    I. Petitioners are entitled to an order of prohibition as a matter of right. (Matter of Ryan [Hogan], 306 N. Y. 11; Matter of Hogan v. Court of Gen. Sessions, 296 N. Y. 1; People ex rel. Jerome v. Court of Gen. Sessions, 185 N. Y. 504; Matter of Public Service Comm. v. Norton, 304 N. Y. 522; People ex rel. Livingston v. Wyatt, 186 N. Y. 383; Matter of Baltimore Mail S. S. Co. v. Fawcett, 269 N. Y. 379; Matter of Shortridge, 99 Cal. 526; Matter of Hogan v. Bohan, 305 N. Y. 110; Northrup v. People, 37 N. Y. 203.) II. Petitioners’ rights, guaranteed by the Constitutions of the United States and the State of New York, were violated. (Grosjean v. American Press Co., 297 U. S. 233; Near v. Minnesota, 283 U. S. 697; Craig v. Harney, 331 U. S. 367; Bridges v. California, 314 U. S. 252; Thomas v. Collins, 323 U. S. 516; Marlin Fire Arms Co. v. Shields, 171 N. Y. 384; People v. Hall, 51 App. Div. 57; Lee v. Brooklyn Union Pub. Co., 209 N. Y. 245.)

      E. Douglas Hamilton, Stanley D. Brown and John G. McCarthy for New York Herald Tribune, Inc., appellant.
    I. Respondent had no power to make the order of exclusion. (Lilburne’s Trial, 4 How. St. Tr. 1270; Scott v. Scott, [1913] A. C. 417; Matter of Oliver, 333 U. S. 257; State v. Holm, 67 Wyo. 360; Craig v. Harney, 331 U. S. 367; People v. Hall, 51 App. Div. 57; State v. Keeler, 52 Mont. 205; People v. Miller, 257 N. Y. 54; Tanksley v. United States, 145 F. 2d 58; United States v. Kobli, 172 F. 2d 919.) II. Petitioners have a mature legal right which was violated by respondent’s order of exclusion. (Lee v. Brooklyn Union Pub. Co., 209 N. Y. 245; Maryland v. Baltimore Radio Show, 338 U. S. 912; Matter of Shortridge, 99 Cal. 526; State v. Hensley, 75 Ohio St. 255; Bridges v. California, 314 U. S. 252.) III. Prohibition was the proper and only remedy and should have been granted. (Matter of Public Service Comm. v. Norton, 304 N. Y. 522; Matter of Hogan v. Bohan, 305 N. Y. 110; People ex rel. Jerome v. Court of Gen. Sessions, 185 N. Y. 504; Matter of Baltimore Mail S. S. Co. v. Fawcett, 269 N. Y. 379.)

      Charles Henry and Harvey L. Lipton for Hearst Corporation and another, appellants.
    X. The order of respondent was in excess of his power. (Tanksley v. United States, 145 F. 2d 58; United States v. Kobli, 172 F. 2d 919; People v. Murray, 89 Mich. 276; State v. Beckstead, 96 Utah 528; People v. Hartman, 103 Cal. 242; People v. Letoile, 31 Cal. App. 166; Stewart v. State, 18 Ala. App. 622; Rhoades v. State, 102 Neb. 750; State v. Keeler, 52 Mont. 205; Matter of Oliver, 333 U. S. 257.) II. Assuming exclusion a matter of judicial discretion, respondent grossly exceeded any discretion he may have had.

      J. Howard Garter, James W. Rodgers, John R. Schoemer, Jr., and Andrew L. Hughes for News Syndicate Co., Inc., appellant.
    I. Respondent did not have the power to make the exclusion order. (Matter of Oliver, 333 U. S. 257; Scott v. Scott, [1913] A. C. 417; Lee v. Brooklyn Union Pub. Co., 209 N. Y. 245; Maryland v. Baltimore Radio Show, 338 U. S. 912; Aultman & Taylor Co. v. Syme, 163 N. Y. 54; Matter of Shortridge, 99 Cal. 534; Cantwell v. Connecticut, 310 U. S. 296; Near v. Minnesota, 283 U. S. 697.) II. Petitioners’ rights, independently of Jelke’s rights, were infringed by respondent’s order. (Shelley v. Kraemer, 334 U. S. 1; A. F. of L. v. Swing, 312 U. S. 321; Bridges v. California, 314 U. S. 252; Ex Parte Virginia, 100 U. S. 339; Twining v. New Jersey, 211 U. S. 78; Grosjean v. American Press Co., 297 U. S. 233; Near v. Minnesota, 283 U. S. 697; Lovell v. Griffin, 303 U. S. 444.) III. Prohibition lies to prevent the exercise of unauthorized power and is the only remedy available to petitioners. (Quimbo Appo v. People, 20 N. Y. 531; Matter of Culver Contr. Corp. v. Humphrey, 268 N. Y. 26; Matter of Public Service Comm. v. Norton, 304 N. Y. 522; Matter of Baltimore Mail S.S. Co. v. Fawcett, 269 N. Y. 379.) IV. Petitioners are entitled to maintain this proceeding. (Matter of Public Service Comm. v. Norton, 304 N. Y. 522; Matter of Culver Contr. Corp. v. Humphrey, 268 N. Y. 26; Matter of Andresen v. Rice, 277 N. Y. 271; Matter of Zielinski v. Harding, 177 Misc. 773; Nowack v. Fuller, 243 Mich. 200; Bend Pub. Co. v. Haver, 118 Ore. 105; Holcombe v. State, 240 Ala. 590; Providence Journal Co. v. McCoy, 94 F. Supp. 186, 190 F. 2d 760, 342 U. S. 894.)

      M. Marvin Berger for New York Post Corporation, appellant.
    I. Respondent had no power to issue the order of exclusion. (People v. Miller, 257 N. Y. 54; People v. Hall, 51 App. Div. 57; United States v. Kobli, 172 F. 2d 919; State v. Holm, 67 Wyo. 386; Tanksley v. United States, 145 F. 2d 58; State v. Keeler, 52 Mont. 205; Lilburne’s Trial, 4 How. St. Tr. 1270; Scott v. Scott, [1913] A. C. 417; Rex v. Governor of Lewes, Ex Parte Doyle, [1917] K. B. 2; McPherson v. McPherson, L. J. [P. C.] 105.) II. Assuming without admitting the power of the court to order exclusion, its exercise in the instant case was in excess of his judicial function. (Craig v. Harney, 331 U. S. 367.) The exclusion order violated petitioners’ rights to gather and report news. (Bridges v. California, 314 U. S. 252; Grosjean v. American Press Co., 297 U. S. 233; Near v. Minnesota, 283 U. S. 697; Matter of Andresen v. Rice, 277 N. Y. 271; Matter of Culver Contr. Corp. v. Humphrey, 268 N. Y. 26; People ex rel. Pumpyansky v. Keating, 62 App. Div. 348, 168 N. Y. 390; Matter of Zielinski v. Harding, 177 Misc. 733.)

      Charles Ballon, Howard M. Squadron and Jacob M. Usadi for New York Civil Liberties Union, amicus curies, in support of appellants’ position.
    I. Public access to information is the basis for the fundamental rights of the Bill of Rights. (Pennekamp v. Florida, 328 U. S. 331.) II. The public, as well as the accused, has a constitutional interest in a public trial. (Lilburne’s Trial, 4 How. St. Tr. 1270; Tanksley v. United States, 145 F. 2d 58; Daubney v. Cooper, 10 B & C 237; Scott v. Scott, [1913] A. C. 417; Williamson v. Lacey, 86 Me. 80; State v. Copp, 15 N. H. 212; United States v. Kobli, 172 F. 2d 919.) III. The Fourteenth Amendment renders the public trial guarantee of the Bill of Rights applicable to citizens of the States. (Betts v. Brady, 316 U. S. 455; Matter of Oliver, 333 U. S. 257.) IV. Respondent’s order violated the public trial requirement of the Sixth Amendment to the Federal Constitution. (Tanksley v. United States, 145 F. 2d 58; People v. Kerrigan, 73 Cal. 222; Lide v. State, 133 Ala. 63; State v. Scruggs, 165 La. 842; State v. Genese, 102 N. J. L. 114; State v. Brooks, 92 Mo. 542; Jackson v. Commonwealth, 100 Ky. 239; Kugadt v. State, 37 Tex. Cr. Rep. 681; People v. Greeson, 230 Mich. 124; Grimmet v. State, 22 Tex. Cr. Rep. 36.) V. The accused cannot waive the public’s right to a public trial. (Nagle-Gillman v. Christopher, 4 Ch. D. 174.) VI. The public’s constitutional right to know is protected by the freedom of press guarantee. (Grosjean v. American Press Co., 297 U. S. 233; United States v. Associated Press, 52 F. Supp. 362; Lovell v. Griffin, 303 U. S. 444; Bridges v. California, 314 U. S. 252.) VII. The First Amendment is made applicable by the Fourteenth Amendment to respondent’s order. (Shelley v. Kraemer, 334 U. S. 1; Near v. Minnesota, 283 U. S. 697; Grosjean v. American Press Co., 297 U. S. 233; De Jonge v. Oregon, 299 U. S. 353.) VIII. Respondent’s order is a classic example of an unconstitutional “ prior restraint”. (Winters v. New York, 333 U. S. 507; Craig v. Harney, 331 U. S. 367.)

      Frank S. Hogan, District Attorney (Richard G. Denser, Charles W. Manning and Stuart G. Schwartz of counsel), for respondent.
    I. Petitioners had no status to institute the present proceeding. (Matter of Oliver, 333 U. S. 257; People v. Hall, 51 App. Div. 57; Dutton v. State, 123 Md. 373; People v. Miller, 257 N. Y. 54; McPherson v. McPherson, 1 Dom. L. Rep. 321; Scott v. Scott, [1913] A. C. 417; Cornish’s Trial, 11 How. St. Tr. 460; Wade v. State, 207 Ala. 1; People v. Hartman, 103 Cal. 242; State v. Beckstead, 96 Utah 528.) II. The motion lacked merit in that the exclusion order constituted a ruling which respondent had power to make. (Matter of Hogan v. Court of Gen. Sessions, 296 N. Y. 1; People ex rel. Livingston v. Wyatt, 186 N. Y. 383; Danziger v. Hearst Corp., 304 N. Y. 244; Hanna v. Mitchell, 202 App. Div. 504, 235 N. Y. 534; People v. Buck, 46 Cal. App. 2d 558; Reagan v. United States, 202 F. 488; Myers v. State, 97 Ga. 76; State v. Brooks, 92 Mo. 542; State v. Holm, 67 Wyo. 360; People v. Tugwell, 32 Cal. App. 520.) HI. Regardless of the questions of petitioners’ status and of respondent’s power to exclude, the order of Special Term constituted a proper exercise of that court’s discretion and should not be disturbed. (People ex rel. Livingston v. Wyatt, 186 N. Y. 383; People ex rel. Rothensies v. Searles, 229 App. Div. 603; People ex rel. Howard v. Searles, 229 App. Div. 819; Matter of Dodge v. Supreme Court, 249 App. Div. 103, 276 N. Y. 444; People ex rel. McManus v. Warden of City Prison, 226 App. Div. 364; People v. Cunningham, 3 Parker Cr. Rep. 531; People v. Ackerson, 166 Misc. 130; People ex rel. Ackerson v. Warden of

      City Prison, 167 Misc. 475; People ex rel. Glendening v. Glendening, 259 App. Div. 384; People ex rel. Cuvillier v. Hagarty, 238 N. Y. 621.)
   Fuld, J.

Decision in this case has been held up for some months to permit the appeal in People v. Jelke to reach us and be argued; it has now been heard and, indeed, decided today. Both that case and this one involve the order made by Judge Valente excluding the general public and the press from the courtroom during a large part of the trial.

In People v. Jelke (308 N. Y. 56), the question presented was whether that exclusionary order operated to deprive defendant Jelke of his right to a public trial. We held that it did. On this appeal, the issue is whether members of the public at large, including the press, also possessed an enforcible right of their own to insist that Jelke’s trial be open to the public.

The pertinent facts are stated in the' opinion in the J elite case (supra, 308 N. Y. 56) and there is no reason to set them forth again. Petitioners, comprising a number of press associations and newspaper publishers, were, by reason of the order barring-public and press, denied admittance to the trial during the presentation of the People’s case. To restrain the trial judge from carrying out that order, they instituted this article 78 proceeding-in the Supreme Court. The application was denied at Special Term, and the Appellate Division affirmed by a divided court.

Although the district attorney has appeared on behalf of Judge Valente, neither defendant Jelke nor the People or the district attorney is a party to this proceeding. And, despite the fact that the criminal trial was concluded, and Jelke convicted, some two months prior to the Appellate Division’s decision in this proceeding, petitioners reached this court before the accused’s own appeal could be heard in the Appellate Division.

Since the problem presented and the principle involved are of importance in the administration of the criminal law, we deem it appropriate to entertain the appeal rather than to dismiss it upon the ground that it has become moot. (See Matter of Rosenbluth v. Finkelstein, 300 N. Y. 402, 404; Matter of Glenram Wine & Liq. Corp. v. O’Connell, 295 N. Y. 336, 340; see, also, Cohen and Karger, Powers of the New York Court of Appeals, pp. 420, 421.)

It is well, at the outset, to emphasize that this is not a case of free speech or freedom of the press and that the right asserted by petitioners is not embraced within the constitutional provision guaranteeing those freedoms. (U. S. Const., 1st Amendt.; N. Y. Const., art. I, § 8.) The courts have ever been alert to strike down any infringement or limitatioh upon the fundamental right of the press freely to publish and distribute news and comments (see, e.g., Near v. Minnesota, 283 U. S. 697; Lovell v. Griffin, 303 U. S. 444; Bridges v. California, 314 U. S. 252; Craig v. Harney, 331 U. S. 367), and we certainly have no disposition or purpose to undermine or minimize it. That right has, however, never been held to confer upon the press a constitutionally protected right of access to sources of information not available to others. Judicial proceedings are viewed as “ a public event ”, in the sense that “ Those who see and hear what transpired can report it with impunity. ” (Craig v. Harney, supra, 331 U. S. 367, 374.) But freedom of the press is in no way abridged by an exclusionary ruling which denies to the public generally, including newspapermen, the opportunity to “ see and hear what transpired ’ ’. In line with that thinking, we recently upheld the validity of a court rule (Rules Civ. Prac., rule 278) restricting access by persons, who are not parties, to the filed pleadings or testimony in matrimonial actions. (See Danziger v. Hearst Corp., 304 N. Y. 244.) In so doing, we specifically rejected the contention that such provisions were violative of freedom of the press, and we observed that there are a number of other areas in which preservation of secrecy has similarly been directed by the legislature in respect of court records. (See Danziger v. Hearst Corp., supra, 304 N. Y. 244, 248, 249; cf. Code Crim. Pro., §§ 262-264, 913-f, 952-t; Judiciary Law, § 90, subd. 10; N. Y. City Dom. Rel. Ct. Act, § 52; Mental Hygiene Law, §74, subd. 6.)

We turn, then, to the claim that the right here asserted has been granted by statute. As we have already noted in deciding People v. Jelke, there are three pertinent statutory provisions. Two of them are applicable only to criminal prosecutions and confer the right of public trial upon the defendant (Code Crim. Pro., § 8; Civil Rights Law, § 12). The third provision, section 4 of the Judiciary Law, is more broadly worded and declares, subject to certain stated exceptions, that, “ The sittings of every court within this -state shall be public, and every citizen may freely attend the same ”, It is on this latter provision that petitioners primarily rely. All three statutory provisions were derived from the revised statutes of 1829. That no drastic change was intended by enactment of the forerunner of section 4 of the Judiciary Law is established by the Revisers’ note that it was merely “ Declaratory of the existing law.” (See Revisers’ Notes to Rev. Stat. of N. Y. [1829], part III, ch. Ill, tit. I, § 1, found in Reports to Legislature by N. Y. Comrs. to Revise Statutes [1828], as well as in 3 Rev. Stat. [2d ed., 1836], Appendix, p. 694.)

Insofar as the statute called for “ public sittings,” it was merely a restatement, in terms of general application, of the public trial guarantee, also contained in the other two provisions. As to the further specification that every citizen may freely attend ” the sessions of the court, it is a fair deduction that, when enacted in 1829, it was merely intended as a recognition of the ancient rule —- reflected, indeed, in an early New York statute (L. 1684, ch. 19; 1 Colonial Laws of New York [1894], pp. 159-160) — respecting freedom from arrest of all persons voluntarily attending court on court business. (See, e.g., Lambard, Eirenarcha [1588], pp. 397-398; 3 Burn, Justice of the Peace [4th ed., 1757], p. 274; 4 id. [19th ed., 1800], p.. 274; Ladd, Burn’s Abridgment or the American Justice [N. EL, 1792], p. 371; Conductor Generalis, Compiled Chiefly from Burn’s Justice [N. Y., 1794], p. 318; 2 Bacon, Abridgment of the Law [1st Am. ed., 1811], p. 108.) Thus, we find it said as early as 1588 by Lambard in his Eirenarcha (op. cit., pp. 397-398):

And now, as all these [Grand Jurors] owe their service at the Sessions, either by reason of their office, or by vertue of the Summons: So all others also may freely attend there, if not for any thing that specially concerneth themselves, yet for the advancement of publique Justice, and for the service of the Queene. And to this end, they are invited thither (as I may say) by a certaine freedome of accesse, and by protection from common arrest: a thing, that is incident to each court of Record, and without the which, Justice should be greatly" hindered. So that, if a man come voluntarily to these Sessions, with the mind, either to preferre any bill of Enditement, or to give information against another: or to tender a fine upon an Enditement, touching himselfe: or do come compelled to make apparaunce for the saving of his bond, and be arrested by the Shirife upon common and originall processe, in his coming thither, or during his tarying there: it seemeth that (upon examination of the matter under his oath) he shall be dismissed thereof by the privilege of this Court, even as it is used in the higher Courts at Westminster.” (Emphasis supplied.)

This statement is repeated, almost word for word, in Burn (lac. cit.), an English work which not only enjoyed a wide circulation in this country in colonial days, but was reproduced in abridged form in New Hampshire, in 1792 (Ladd, lac. cit.), and in this state, in Albany, in 1794 (Conductor Ueneralis, lac. cit.); and the relevant passage appears in both of these books.

As is thus manifest, the assurance that all persons “ may freely attend ” court sittings had nothing to do with attendance of citizens or members of the public simply as spectators, but was rather designed to afford “a certaine freedome of accesse,” a protection from arrest, to those whose presence was essential for the disposition of the work of the court.

Fifty years after the passage of the Revised Statutes, the provision in question was amended to add the following italicized language (L. 1879, ch. 210):

The sittings of every court within this State shall be public, and every citizen may freely attend the same, except that in all proceedings and trials in [certain specified] cases * * * the court may, in its discretion, exclude therefrom all persons who are not directly interested therein, excepting jurors, witnesses, and officers of the court.”

It seems almost self-evident that the except ” clause related to the first part of the statute — that the sittings of the court shall be “ public ” — rather than to the second part. The guarantee of “ free ” attendance by citizens having business before the court remained unaffected. The only change consisted in qualifying the public trial principle to the extent of authorizing the court in a proper case — one of those enumerated — to exclude members of the general public. Consequently, in considering whether a stranger to the action has a right, which he may assert in court, to demand that the trial be open to the public, we misread the statute if we focus attention on the words every citizen may freely attend ’ ’ the court sessions. And, even if those words were to be given a broader construction than their historical background indicates and justifies, they would at most serve merely as a definition of the public trial concept. (See People v. Murray, 89 Mich. 276, 286.)

Our inquiry must necessarily be, therefore, whether the guarantee that a trial shall be “ public ” — found in all three statutes, the Code of Criminal Procedure, the Civil Rights Law and the Judiciary Law — creates an enforcible right in a member of the general public.

While various purposes have been attributed to the doctrine of public trial in criminal cases, its primary function has traditionally been regarded as that of safeguarding the accused against possible unjust persecution and abuse of judicial authority and of assuring him a fair trial. (See People v. Jelke, supra, 308 N. Y. 56, 62; Matter of Oliver, 333 U. S. 257, 268-271; see, also, 1 Cooley, Constitutional Limitations [8th ed., 1927], p. 647.) “ The requirement of a public trial,” Cooley has written (loe. cit.) “ is for the benefit of the accused; that the public may see he is fairly dealt with and not unjustly condemned ”.

We have said, though in an entirely different connection, that section 4 of the Judiciary Law indicates a “ public interest ” in having court proceedings “ public ” (see Lee v. Brooklyn Union Pub. Co., 209 N. Y. 245, 248), and that is so. But the language there used — to which Judge Froessel refers (opinion, p. 92) — did not, and could not, mean that the right declared may be invoked by anyone other than the particular litigant, the accused in a criminal prosecution and either party in a civil case, for whose protection it has been primarily provided.

The public does unquestionably have an interest in seeing that every person accused of crime shall have a fair trial and not denied any of the guarantees designed for his protection. That is true, not only of the guarantee of public trial, but also of other privileges equally basic, such as the defendant’s right to trial by jury (N. Y. Const., art. I, § 2), his right to the assistance of counsel (N. Y. Const., art. I, § 6) and his right to be confronted by the witnesses against him (N. Y. Const., art. I, § 6).

‘ ‘ "While all of these rights are in a broad sense for the protection of the public generally they are in a very special sense privileges accorded to the individual member of the public who has been accused of crime.” (United States v. Sorrentino, 175 F. 2d 721, 722-723.) It is for the defendant alone to determine whether, and to what extent, he shall avail himself of them. To permit outsiders to interfere with the defendant’s own conduct of his defense would not only upset the orderly workings of the judicial process, but could well redound to the defendant’s exceeding prejudice.

The public’s interest is adequately safeguarded as long as the accused himself is given the opportunity to assert on his own behalf, in an available judicial forum, his right to a trial that is fair and public. The accused’s defense is, in the very nature of things, more than likely to be adequate. Whatever concern the public may have for a defendant’s right to a fair trial, it can seldom match that of the person whose life or liberty is at stake. The defense may, it is true, sometimes be inept, but for that there are other remedies than delegating, to persons not directly concerned, the authority to control the course of the proceedings. As long as the defendant is assured the right to invoke the guarantees provided for his protection, the public interest is safe and secure, and there is neither need nor reason for outsiders to interject themselves into the conduct of the trial.

Actually, petitioners are seeking to convert what is essentially the right of the particular accused into a privilege for every,/ citizen, a privilege which the latter may invoke independently of, and even in hostility to, the rights of the accused. A moment’s reflection is enough, we suggest, to demonstrate that that cannot be, for it would deprive an accused of all power to waive • y his right to a public trial and thereby prevent him from taking a course which he may believe best for his own interests. And, in point of fact, just as there may be a waiver of other fundamental rights — such as the right to trial by jury (N. Y. Const., art. I, § 6), the right to counsel (see People v. Palmer, 296 N. Y. 324), the right to confrontation by witnesses (see People v. Sugarman, 248 N. Y. 255, 258) and the guarantee against unreasonable searches and seizures (see People v. Sieke, 222 N. Y. 611) — so, this court has held, there may be a waiver by the defendant of his right to a public trial. (See People v. Miller, 257 N. Y. 54,60-61.) And the same view prevails in other jurisdictions. (See United States v. Sorrentino, supra, 175 F. 2d 721; Keddington v. State, 19 Ariz. 457, 462; People v. Swafford, 65 Cal. 223, 224; People v. Stanley, 33 Cal. App. 624; Benedict v. People, 23 Col. 126, 129; Henderson v. State, 207 Ga. 206; Dutton v. State, 123 Md. 373; see, also, Gibson v. United States, 31 F. 2d 19, 22; Irwin v. State, 220 Ind. 228, 238; State ex rel. Baker v. Utecht, 221 Minn. 145, 149; State v. Keeler, 52 Mont. 205, 216; State v. Smith, 90 Utah, 482, 491-492.) A regard, not alone for reason and logic, but for justice and fairness to the defendant, dictates the conclusion that, subject to the court’s approval and ruling, he be allowed to decide against having a public trial. As one United States Court of Appeals aptly wrote, “ a defendant may well conclude that in his particular situation his interests will be better served by foregoing the privilege than by exercising it ”, and “ To deny the right of waiver in such a situation would be ‘ to convert a privilege into an imperative requirement ’ to the disadvantage of the accused.” (United States v. Sorrentino, supra, 175 F. 2d 721, 723.)

While publicity ordinarily serves to assure a fair trial, the defendant may determine reasonably and sensibly that he will be able to secure such a trial only by limitation of the number of spectators — where, for example, a particular crime has aroused intense feeling in the community. (Cf. Moore v. Dempsey, 261 U. S. 86.) There can be no warrant or justification for denying the defendant the privilege of waiving his right to a public trial in such a case. Yet, if petitioners were correct in their position, it would mean, most anomalously, that, although the defendant consents to forego his privilege, the court would be powerless to exclude the general public, even where necessary to assure the defendant a fair trial, as long as any individual demanded that the court be kept open.

Still another strange consequence of petitioners’ position would be to permit the defendant’s rights to be determined in proceedings in which he was not a party and had no voice, as exemplified by the very case before us. Thus, by the dispatch with which they acted in bringing this article 78 proceeding and in appealing from the orders below, petitioners reached this court before the accused’s own appeal was heard even in the Appellate Division. Raising the issue, by their appeal, that Jelke’s trial was not a public one, petitioners sought, in effect, to have us pass upon the merits of his appeal although he could not be heard. There is something essentially wrong and unreasonable about a procedure that permits such a result.

Petitioners’ interpretation of the statute would also mean that any person denied access to a courtroom, no matter what the reason, could challenge the court’s authority and seek to stay further proceedings until his asserted right to be present had been finally passed upon. The trial court’s inherent authority to limit pubEe attendance in certain situations in the interests of sound judicial administration is well settled. (See People v. Jelke, supra, 308 N. Y. 56, 63; see, also, People v. Murray, supra, 89 Mich. 276, 286, 291.) Nevertheless, if every member of the pubEc were free to challenge any order of exclusion made in the exercise of such authority, the courts might weH be overwhelmed with a host of collateral proceedings.

The harsh and burdensome consequences that would thus ensue from the interpretation urged by petitioners afford persuasive evidence that the legislature never intended to confer an enforcible right of attendance upon every individual member of the pubEc. It is always presumed, in regard to a statute,” we have said (Matter of Meyer, 209 N. Y. 386, 389), that no unjust or unreasonable result was intended by the legislature.” And, where adherence to the statute’s letter produces such a result, it is settled that “ To effect the intention of the legislature the words of a single provision may be enlarged or restrained in their meaning and operation, and language general in expression may be subjected to exceptions through implication. ’ ’ (209 N. Y., at pp. 389-390; see Surace v. Danna, 248 N. Y. 18, 21; People v. Santoro, 229 N. Y. 277, 281-282.) Just as the language of the statute may not be read to deny to the trial court the authority to exclude individual members of the public from the courtroom under any and all circumstances (see People v. Jelke, supra, 308 N. Y. 56, 63), so we may not assume that the legislature intended to give to each and every outsider the power to control the exercise of rights guaranteed to the accused for his own protection.

It is suggested that the statute was designed to prevent the defendant himself from seeking a secret trial in order to obtain some unfair advantage (opinion of Froessel, J., p. 93). That view, however — without support either in the background of the statutes or in their legislative history — would actually require overruling our decision in People v. Miller (supra, 257 N. Y. 54, 60-61) that the right of public trial is one that may be waived. And, quite apart from that, we may not interpret a provision, which its drafters described as merely “ Declaratory of the existing law ”, in such a way as to import into the statute so drastic a new consequence as interference with the defendant’s free exercise of his rights. The asserted danger, far from ever looming large in our judicial history, has never been a cause for serious concern. What is even more to the point, the public interest is adequately protected — the fear that an accused may succeed in having the courtroom closed to the prejudice or disadvantage of that public interest, reduced to a minimum — by virtue of the trial judge’s power to refuse defendant’s application, if the judge concludes that the case is not an appropriate one for exclusion of the public.

In any event, even if the statute were to be interpreted as granting the public a right distinct from that given to the defendant, it is at most a right conferred on the public at large and not on any individual member thereof. (See State v. Copp, 15 N. H. 212, 215; cf. Frothingham v. Mellon, 262 U. S. 447, 487.) Petitioners quite obviously have no personal or property rights which could be affected by this proceeding. Their only interest in the case is that which is common to the public as a whole, rather than the individual interest which is requisite for standing in court. (See Morrell v. Brooklyn Borough Gas Co., 231 N. Y. 405, 408-409; Schieffelin v. Komfort, 212 N. Y. 520, 530; People v. Fisher, 209 N. Y. 392, 394; Roosevelt v. Draper, 23 N. Y. 318, 323.)

Most pertinently, this court pointed out in the Fisher case (supra, 209 N. Y. 392, 394), “ it would lead to intolerable abuses if persons interested only in the question to be decided were allowed to intervene and interfere with the conduct of the cause. ’ ’ And, as we have held in somewhat analogous situations, enactments which at most confer rights or benefits on the public at large “ do not import intention to protect the interests of any individual except as they secure to all members of the community the enjoyments of rights and privileges to which they are entitled only as members of the public.” (Steitz v. City of Beacon, 295 N. Y. 51, 56, and cases there cited.)

The fact that petitioners are in the business of disseminating news gives them no special right or privilege, not possessed by other members of the public. Since the only rights they assert are those supposedly given “ every citizen ” to attend court sessions (Judiciary Law, § 4), they are in no position to claim any right or privilege not common to “ every [other] citizen ”. Any incidental financial benefit, which they might have derived from the opportunity to report the full proceedings at the Jelke trial, can give them no greater status than they would otherwise have had.

Accordingly, although we have held that Judge Valente’s order deprived defendant Jelke of his right to a public trial (People v. Jelke, supra, 308 N. Y. 56), our conclusion on this appeal is that it did not deprive petitioners of any right or privilege of which they may complain.

The order of the Appellate Division should he affirmed, with costs.

Desmond, J.

(concurring). I concur for affirmance, but in the result only, my views on the questions of law being as follows:

1. As to whether the first part of section 4 of the Judiciary Law expresses a private right and a right to sue for its enforcement. Since 1829, this statute has ordained that: " The sittings of every court within this state shall be public, and every citizen may freely attend the same ”. It is beyond my comprehension why such language should need any interpretation at all. I think it means just what it says (McCluskey v. Cromwell, 11 N. Y. 593, 601; Matter of Rathscheck, 300 N. Y. 346, 350). The next inquiry is: may a citizen, refused admission to a courtroom, sue to enforce his right to attend ? Again, the statutory language is so utterly clear that there should be no construction problem at all. It is in no wise pertinent that in cases like Steitz v. City of Beacon (295 N. Y. 51) and Bull v. Stichman (298 N. Y. 516), we held that the particular rights there asserted were “ public ” ones only and that no individual citizen could sue to redress their alleged violation. The right freely to attend the sittings of our courts has been, in terms, granted to “every citizen ”, and if that be not a grant of an individual personal right to “every citizen ”, then words have lost their meaning. A citizen who is refused admission to a courtroom is denied the exact same kind of right as one turned away from a public park or schoolroom. Certainly, these newspapers had at least as much standing to sue as the petitioners in Matter of Zorach v. Clauson (303 N. Y. 161, affd. 343 U. S. 306).

2. As to the court’s power to exclude spectators in cases like this. As I showed in my dissent in People v. Jelke (308 N. Y. 56, 68), it has been the undoubted law of New York at least since People v. Hall (51 App. Div. 57) was decided in 1900, that, in a case like this, the trial court has not only a discretionary power by custom to exclude, but that right, in such cases, has been expressly recognized by the exception in section 4 (supra). People v. Mall is directly in point, it has been everywhere cited and regarded as the New York law on the point, and I have not yet seen any ground or reason for refusing to follow it. Not only was the Mall case not overruled in People v. Miller (257 N. Y. 54), but the point was there carefully left undecided (see bottom p. 60 and top p. 61 of 257 N. Y.). Whether the statements, in Mall, that the section 4 exception applies to sex cases generally, is “ dictum ” is beside the point, since the Mall opinion states two separate bases for upholding the court’s exclusion order there (exactly the same kind of order as here). Besides holding that the statute’s excepting language authorized the barring order, the Hall opinion strongly asserted that the presiding judge in every such trial has discretionary power to bar spectators (see pp. 61 to 63 of 51 App. Div.). While we are here differing as to the meaning of section 4,1 have never heard any convincing reason why we should, by an ipse dixit, abolish the Trial Judge’s traditional, necessary and salutary power to refuse to turn his courtroom into a peep show.

If I were a legislator, I might have other views as to the wisdom or good government of excluding newspaper reporters from any trial. But as a judge I must follow the law, and keeping salacious court proceedings out of the newspapers contravenes no one’s legal rights (see Danziger v. Hearst Corp., 304 N. Y. 244).

I vote to affirm.

Froessel, J.

(dissenting). In People v. Jelke (308 N. Y. 56), decided herewith, we have just held that the broad order of exclusion made by Mr. Justice Valente, on his own motion and not at the request of the District Attorney or the defendant, deprived the latter of his right to a public trial. The order “ directs that the general public and the press be excluded from the courtroom for the duration of the People’s case ” (emphasis supplied) and “ that the Official Stenographer in these proceedings make copies of the minutes available to the defendant and to the District Attorney, if requested, but to no one else without the permission of the Court ’ ’. The basis of the ruling was: “ Public decency compels it.”

We are here called upon to determine whether the sweeping nature of this order and the ground upon which it was made are in contravention of law, and whether representatives of the press as members of the general public have an enforcible right, separate and apart from the right of the defendant, to require that the sitting of the court in this criminal case “ shall be public ”, and that they may “ freely attend the same ”. The basic facts are sufficiently stated in the companion criminal case. We agree with Judge Fuld’s opinion that the general doctrine forbidding review of abstract questions should not restrain us in this case; that no constitutional guarantees are involved; and that petitioners have no greater rights than every [other] citizen ”. However, we do not agree that plaintiffs are without status to bring this proceeding.

Section 4 of the Judiciary Law, so far as pertinent, provides as follows: The sittings of every court within this state shall be public, and every citizen may freely attend the same [with exceptions not here relevant].” (Emphasis supplied.) In scope and meaning, this language, whether viewed in its own setting or in the light of its historical background, is clear and unmistakable, unambiguous and unclouded. It can only mean precisely what it plainly says, and may not be confused with section 8 of the Code of Criminal Procedure, nor section 12 of the Civil Eights Law. The latter statutes guarantee to a defendant in a criminal case a “ public trial ”. That is his right. Section 4 of the Judiciary Law, by an entirely different arrangement of words, grants a wholly separate and independent right, namely, a public right.

This right is subject, of course, to the enumerated exceptions created by the Legislature and contained in the statute itself, as well as those limitations sanctioned by common law and judicial decisions in carefully defined situations in the interest of the proper administration of justice, as appropriately outlined in the prevailing opinion in People v. Jelke (supra). None of those exceptions is relevant here, and we shall not advert to them again, save to emphasize that the statutory exceptions do not include this case. The dictum in People v. Hall (51 App. Div. 57), seemingly to the contrary, was not approved in People v. Miller (257 N. Y. 54) for there we held (p. 56) that a similar ruling of the trial court was erroneous ”. We deemed it harmless, however, pointing out that the defendant did not make timely protest, and stated specifically (pp. 60-61) that there was no occasion to consider whether the ruling as to him would be upheld if he had, thus indicating our unwillingness to follow People v. Hall. Inasmuch as representatives of the public and of the press were permitted to be present in People v. Miller, their exclusion was not in controversy. Moreover, the Legislature, despite the broad dictum in People v. Hall, deemed it necessary to amend the statute and thereby again expressly limited the exceptions only to the enumerated cases.

Said section 4 and the two guarantees to criminally accused defendants do not invite an in pari materia application, nor may they be fairly construed only as a single guarantee to defendants. Even though these statutes be read together, we may not thereby disregard the unequivocal language of section 4, which expresses a clear intention to create a “ public ” right, nor may we restrict its plain meaning. Section 4 is not a mere restatement of the public trial guarantee contained in the other two statutes, nor does it simply extend the protection of a public trial to civil actions, i.e., to “ sittings of every court ”, but it expressly mandates that “every citizen may freely attend the same ’ ’. That may not be construed to mean that no representative of the public may freely attend. Yet, according to Judge Furd’s opinion, a trial judge has the unrestrainable power to bar the public, including the press, from any trial or -hearing where the parties thereto desire secrecy, or do not object.

The right of the public to attend a criminal trial, like the right of an accused defendant to a public trial, stems from-the deep roots of the common law. There is a strong suggestion of this public right concept in Sir Edward Coke’s analysis of the phrase “ In curia domini regis ”, as used in Statutum de Marleberge enacted in the year 1267, fifty-two years after Magna Charta (52 Hen. 3; 6 Halsbury’s Statutes of England [2d ed]., pp. 135-138): “ These words are of great importance, for all causes ought to be heard, ordered, and determined before the judges of the kings courts openly in the kings courts, whither all persons may resort ”. (Coke’s Second Institutes, Vol. I, p. 103 [1797]; emphasis supplied.) And in 1649, nearly four hundred years later, the guarded gates of the court were opened after John Lilburne’s vigorous demand, at his trial for treason, in the course of which he said: “ That by the laws of this land all courts of justice always ought to be free and open for all sorts of peaceable people to see, behold and hear, and have free access unto”. (4 How. St. Tr. 1270, 1273-1274; emphasis supplied.) While Lilburne spoke as an accused, the concept of the public’s right to attend “ to see, behold and hear ” was rapidly growing, for this was but eight years after the Long Parliament abolished the Court of Star Chamber (Matter of Oliver, 333 U. S. 257, 266-267).

During that same decade, in 1641, the Colony at Massachusetts Bay enacted in the General Court “ The Massachusetts Body of Liberties ”, within which is found the following passage showing the “ open court ” principle then viewed as a public right: “ 12. Every man whether Inhabitant or forreiner, free or not free shall have libertie to come to any publique Court, Councell, or Towne meeting ”. (Colonial Laws of Massachusetts [1889, reprinted from 1660 ed.], pp. 29-68, particularly 35.)

Tins public right concept has frequently been reasserted by text writers: Blaekstone’s Commentaries, Book 3, p. 373 (“ in the presence of all mankind ”); Hale, History of the Common Law of England, 6th ed. (1820), ch. XII, p. 343 (in the presence of “ all by-standers ”); Jenks, The Book of English Law (3d ed., 1932), p. 91 (“public have free access”); 2 Bishop’s New Criminal Procedure (2d ed.), § 957 (“ spectators are admitted”); 9 Halsbury’s Laws of England, § 705 (“As a general rule all persons have a right to be present in court [with recognized exceptions] * * * it does not appear that a judge trying a criminal case has any power to exclude the public in general ”); 1 Bentham, Rationale of Judicial Evidence, p. 524 (1827) (“ Without publicity, all other checks are insufficient ”).

Richard Burn, in his monumental work “ The Justice of the Peace and Parish Officer ” (17th ed. [1793], Yol. 4, p. 220), restates the same concept: ‘‘ And all persons may freely attend at the sessions for the advancement of public justice, and for the service of the Mng ” (emphasis supplied), an echo of John Lilburne’s demand that all courts be free and open for “ all sorts of peaceable people to see, behold and hear Indeed, Burn adds that “ to this end ”, namely, that “ all persons may freely attend ”, even persons subject to “ common arrest ” are exempt therefrom when attending on appropriate court business, citing Lambard, 402. This provision for exemption from “ common arrest ” is an additional right, and in no way cuts down the right of all persons to attend court sessions. There can be no doubt that these rights are entirely separate and distinct, for they were so recognized by the revisers in 1829, the right to exoneration from arrest provided for in chapter 19 of the Laws of 1684, having been by them limited to persons subpoenaed or ordered to attend (Rev. Stat. of N. Y. [1829], part III, ch. VH, tit. Ill, § 51; Yol. 2, p. 402) and continued to this date in section 25 of the Civil Rights Law; whereas the forerunner of section 4 of the Judiciary Law, as hereinafter noted, was embodied in chapter III (tit. I, § 1) at page 274 of the same volume and part of said Revised Statutes.

Professor Wigmore noted some of the reasons for the maintenance of free public access to the courtroom — reasons apart from the protection of individual defendants in individual cases. The open proceeding, he states, serves to improve the quality of justice by improving the quality of testimony; under the “ public gaze ”, the officers of the court will be moved to a stricter “conscientiousness in the performance of duty”; persons not parties who may in some way be affected may have an opportunity of protecting themselves; the “ educative effect of public attendance is a material advantage ”, and, finally, “Not only is respect for the law increased and intelligent acquaintance acquired with the methods of government, but a strong confidence in judicial remedies is secured which could never be inspired by a system of secrecy.” (6 Wigmore on Evidence [3d ed.], § 1834.)

The public right concept has also frequently been adverted to by the courts: “ The inveterate rule is that justice shall be administered in open Court ” (Scott v. Scott, [1913] A. C. 417, 445); “ One of the demands of a democratic society is that the public should know what goes on in courts by being told by the press what happens there, to the end that the public may judge whether our system of criminal justice is fair and right ’ ’ (Maryland v. Baltimore Radio Show, 338 U. S. 912, 920); “ The knowledge that every criminal trial is subject to contemporaneous review in the forum of public opinion is an effective restraint on possible abuse of judicial power ” (Matter of Oliver, 333 U. S. 257, 270); “ A trial is a public event. What transpires in the court room is public property. * * * There is no special perquisite of the judiciary which enables it, as distinguished from other institutions of democratic government, to suppress, edit, or censor events which transpire in proceedings before it ” (Craig v. Harney, 331 U. S. 367, 374); “ In this country it is a first principle that the people have the right to know what is done in their courts ” (Matter of Shortridge, 99 Cal. 526, 530); “ The people are interested in knowing, and have the right to know, how their servants * * * conduct the public’s business ” (State v. Keeler, 52 Mont. 205, 218);“ It is an undeniable proposition, to start with in this discussion, that courts of justice should be open to the public ” (Williamson v. Lacy, 86 Me. 80, 82).

In this State, as already noted, the requirement that every court sitting “ shall be public ”, and the right of every citizen freely to “ attend the same ” have been expressly provided for by section 4 of the Judiciary Law. This statute, without the exceptions added a half-century later, was enacted as part of the Revised Statutes in New York (Rev. Stat. of N. Y. [1829], part HE, ch. Ill, tit. I, § 1; Vol. 2, p. 274). This was not new law, for the revisers then noted that this section was “ Declaratory of the existing law ” (3 Rev. Stat. of N. Y. [2d ed., 1836], Appendix, p. 694). In “ Notes on the Revised Statutes of the State of New York”, published in 1830, and prepared by John C. Spencer, one of the three revisers, his simple and direct comment (p. 130) on this statute was: “ All courts are to be open to the public.” How can it reasonably be read otherwisei

We have pointed out that the reason why this statute was enacted was “ in the public interest ”. Thus, in Lee v. Brooklyn Union Pub. Co. (209 N. Y. 245, 248), Judge Miller, speaking for our court, in discussing the rationale for allowing newspapers the privilege of reporting fairly what occurs in court trials, said: “ The obvious reason is the public interest in having proceedings of courts of justice public, not secret, for the greater security thus given for the proper administration of justice. For that reason it was early provided by statute in this state that the sittings of every court within this state, shall be public, and every citizen may freely attend the same. ’ (1 R. S. part 3, chap. 3, § 1; see, also, Judiciary Law, § 4). The public generally may not attend the sittings of the courts, but they may be kept informed by the press of what goes on in the courts. * * * The proceeding was in open court where any citizen had the right to be.” (Emphasis supplied.) And in Matter of Rudd v. Hazard (266 N. Y. 302), where a defendant had pleaded guilty before a Special County Judge after the adjournment of the regular term, we observed (p. 307): Publicity, not secrecy, in arraignment, plea and judgment is part of our tradition. It is deemed necessary not only for individual security but also in the public interest. (Judiciary Law, § 4; Lee v. Brooklyn Union Pub. Co., 209 N. Y. 245, 248.) ” (Emphasis supplied.)

Clearly, then, the public possesses the right to attend trials in open court, and this right is twice bestowed, first by the heritage of the common law, and again by the express provisions of the Judiciary Law. It is said that defendant may waive his right to a public trial. It is true we have held, by Cardozo, Ch. J., in People v. Miller (supra, pp. 60-61), that where a defendant did not object to an order of the Trial Judge excluding visitors from the courtroom, justice did not require a new trial, even though we said the order was erroneous ”. In that case, however, the Judge did not carry out his order, but admitted spectators and representatives of the press, excluding other visitors because of sanitary conditions in the crowded courtroom, and thus violated neither the defendant’s right nor the public’s right. We did not hold, nor have we ever held, that a defendant may waive the public’s right to attend a court sitting.

Other situations referred to in Judge Furd’s opinion in which a defendant may waive a personal right are not relevant here. First, he has not waived; secondly, the rights referred to are solely defendant’s rights, and, thirdly, in the case of a defendant’s right to a jury trial, section 2 of article I of our State Constitution expressly authorizes a waiver. Moreover, in those situations, no separate parallel right is given to the public as in section 4 of the Judiciary Law.

We are also told that said section 4 may be invoked only by the accused in a criminal case, for whose security it has been ‘ ‘ primarily ’ ’ provided, that so long as a defendant is assured the right to invoke the public trial guarantee, “ the public interest is safe and secure ”, and his defense is “ more than likely ” to be adequate. But suppose a defendant prefers a secret trial, and a court acquiesces, what happens to the public right? Are we to lay down a rule that in such a case section 4 of the Judiciary Law is suspended, and a defendant, whether because of his prominence or influence, his desire to shield the identity of witnesses, to conceal facts, to gain advantage, or for any reason contrary to the public interest, may preclude the public from attending his trial and observing the conduct of its servants and the administration of justice ? The public right to attend the sittings of our courts is not safeguarded by a surrender of their right to a defendant.

If indeed there are in a given case valid reasons of exclusion embraced within the well-recognized exceptions and promoting the sound administration of justice, the trial court has appropriate power, regardless of the defendant’s wishes or waiver. What we say here is that he does not have the power of completely excluding the public for the reason that public decency demands it. However well intentioned the Trial Judge was, and however much we may deplore sensationalism in the public press, our laws may not be disregarded. Only the Legislature may change them.

Since the public may attend court sittings, how may their right be enforced in the case of an invalid exclusion? Why may not representatives of the press as members of the public at large do precisely what they did here, and thus test the public right? They are neither meddlers nor outsiders, interfering with or injecting themselves into the conduct of a trial, nor do they seek to control the course of the proceedings. They seek to report what they are entitled to “ see, behold and hear ”. If they transgress beyond the pale of the law, they lose the privilege granted them under section 337 of the Civil Practice Act and are answerable for violation of the Penal Law (see arts. 106, 126).

Following the issuance of the completely exclusionary order by the trial court, petitioners moved with dispatch. They did not know whether Jelke would be acquitted or convicted; if the latter, whether he would appeal; in any event, even though he did appeal, he would be testing his own right, not the public’s. We only dealt with Ms right in People v. Jelke (supra). The public right did not depend upon the happenstance that defendant might be convicted, and, if so, that he might appeal.

Petitioners therefore had the right as members of the public to challenge the ruling of the court. Subdivision 1 of section 1284 of the Civil Practice Act, defines a “ body or officer ” as including every court ”. Subdivision 4 of the same section refers to the relief available in a prohibition proceeding, namely, “ to restrain a body or officer exercising judicial or quasi-judicial functions from proceeding without or in excess of jurisdiction Clearly, the Trial Judge proceeded, though with no ill purpose, in excess of his jurisdiction when he barred the entire public. Prohibition was petitioners’ only remedy (Matter of Culver Contr. Corp. v. Humphrey, 268 N. Y. 26; Matter of Public Service Comm. v. Norton, 304 N. Y. 522; Matter of Hogan v. Court of Gen. Sessions, 296 N. Y. 1; People ex rel. Jerome v. Court of Gen. Sessions, 185 N. Y. 504).

The fact that petitioners were not parties to the criminal action does not preclude them as members of the public from instituting this article 78 proceeding (Matter of Public Service Comm. v. Norton, supra [prohibition]; Matter of Zorach v. Clauson, 303 N. Y. 161, 168, affd. 343 U. S. 306, 309 [certiorari]; Matter of Cash v. Bates, 301 N. Y. 258, 261; Matter of Andresen v. Rice, 277 N. Y. 271, 281; Matter of Kornbluth v. Rice, 250 App. Div. 654, affd. 275 N. Y. 597; Matter of McCabe v. Voorhis, 243 N. Y. 401, 411; People ex rel. Pumpyansky v. Keating, 168 N. Y. 390; Matter of Baird v. Board of Supervisors of Kings Co., 138 N. Y. 95, 115; People ex rel. Daley v. Rice, 129 N. Y. 449, 454; People v. Halsey, 37 N. Y. 344, 346-347 [mandamus]).

It is suggested that disorder and confusion would follow if we sustained the petitioners, and that we would be overwhelmed with collateral proceedings. This view is wholly unrealistic and without the slightest foundation. Petitioners promptly asked for a determination of the public right to attend court sittings nearly two years ago; once that determination is made, the confusion arising out of this controversy will disappear and the question now raised will be settled. Unless some member of the public is entitled to bring a proceeding such as this, how else could it be settled?

Accordingly, I recommend that the orders of the Appellate Division and Special Term be reversed; but, since the question presented by this appeal is now moot, and solely for that reason, the application of petitioners should be dismissed.

Lewis, Oh. J., and Conway, J., concur with Fitld, J.; Desmond, J., concurs in result in a separate opinion; Feoessel, J., dissents in an opinion in which Dye, J., concurs; Van Voorhis, J., taking no part.

Order affirmed.

      . The provision (2 Rev. Stat. [1829], part HI, ch. VII, tit. HI, § 51, now Civil Rights Law, § 25), to which Judge Froessbl refers in his opinion (p. 90), dealt only with the privilege from arrest of persons compelled to attend as witnesses pursuant to subpoena or order, and not with the freedom of access of those voluntarily present on court business. Accordingly, that provision cannot possibly cast doubt upon the meaning or significance of the phrase under consideration;

      . Matter of Rudd v. Hazard (266 N. Y. 302) is not to the contrary. All that was there decided was that a special county judge acted without jurisdiction in accepting a plea of guilty by the defendant in a criminal case, where the proceedings were not held at a regularly constituted session of the county court, and that jurisdiction was not conferred by the voluntary appearance of the parties involved. No issue was presented as to whether a defendant could waive the right of public trial at a duly constituted session of the court, and there was certainly no intention to overrule the Miller case (supra, 257 N. Y. 54), where it was in fact decided that a defendant’s failure to object in the trial court to an order of exclusion constituted a waiver.


source: Caselaw Access Project

author: Desmond, J.

license: Public Domain

text:
    The People of the State of New York, Respondent, v. Harry Morton, Appellant.
    Argued October 18, 1954;
    decided December 31, 1954.

      David F. Price for appellant.
    I. At common law, neither spouse could commit larceny with respect to the property of the other. (People ex rel. Felmere v. Rapp, 180 Misc. 839; People [Rossiter] v. Rossiter, 173 Misc. 268; People v. Mattiello, 200 Misc. 619.) II. Since the enactment of the larceny law, which became effective January 1, 1830, no specific amendment has been enacted which has either expressly or impliedly abrogated the common-law rule that one spouse may not steal from the other. (People v. Karp, 298 N. Y. 213.) III. The purpose of section 57 of the Domestic Relations Law was to place each spouse on an equal plane as to actions by either for injuries to the person, reputation or property of the other. It was not to make either spouse responsible criminally for injury to or conversion of the property of the other (People v. Shakun, 251 N. Y. 107; People v. Benc, 288 N. Y. 318; Schubert v. Schubert Wagon Co., 249 N. Y. 253; Caplan v. Caplan, 268 N. Y. 445 ; Allen v. Allen, 246 N. Y. 571; Schultz v. Schultz, 89 N. Y. 644; Abbe v. Abbe, 22 App. Div. 483; Whitney v. Whitney, 49 Barb. 319; Wright v. Wright, 54 N. Y. 437.)

      Edward S. Silver, District Attorney {William I. Siegel of counsel), for respondent.
    I. The common-law doctrine that one spouse could not steal the property of another and thereby be guilty of larceny was universally applied. (Reg. v. Kenny, 2 Q. B. D. 307; Rex v. Willis, 168 Eng. Rep. 1309; State v. Banks, 48 Ind. 197; State v. Koontz, 124 Kan. 216, 55 A. L. R. 555; State
      v. Phillips, 85 Ohio St. 317, 40 L. R. A. [N. S.] 142; People ex rel. Troare v. McClelland, 146 Misc. 545.) II. The Legislature has by express enactment abrogated the common-law rule.
   Desmond, J.

This court now answers for the first time a question old in New York law. May a husband be convicted of the crime of larceny (Penal Law, § 1290) for appropriating the separate property of his wife? Put another way, the question is this: did the various Married Women’s Acts enacted, revised and codified between 1848 and 1909 and now appearing as sections 50 and 51 of the Domestic Relations Law, which give married women the right to own property and to sue and be sued with respect thereto, abrogate, without any corresponding change in the larceny law, the settled common-law rule that there could be no theft by a husband of his wife’s property, since she could have, at common law, no separate property? Our answer, like that of the unanimous Appellate Division, is in the affirmative. Our reasons are substantially the same as those so cogently put forward by the Appellate Division.

Actually, there were (as one of the Appellate Division opinions points out) two reasons for the common-law rule (or fiction) that there could be no such thing as a theft by husband from his wife. Those two bases, separate although shading into each other were: first, the absence at common law of any separate right of property in a married woman; and, second, “ the merger of their beings in the unity of marriage ” (Schubert v. Schubert Wagon Co., 249 N. Y. 253, 255). The first of those bases, it is conceded, has no longer any existence. The real question here is as to the extent and effect of the “ legal unity ” theory. That latter concept survived the passage of the early “ Married Women’s Acts ” to the extent that the New York courts refused, until section 57 of the Domestic Relations Law was amended in 1937, to change the holdings of Schultz v. Schultz (89 N. Y. 644), Allen v. Allen (246 N. Y. 571), Schubert v. Schubert Wagon Co. (249 N. Y. 253, supra), and Caplan v. Caplan (268 N. Y. 445), that neither spouse could sue the other for wrongful personal injuries. But the “ legal unity” idea never, after the first Married Women’s Acts had come into the law, prevented civil suits by a wife against her husband based on Ms wrongful interference with her separate property (Wright v. Wright, 54 N. Y. 437; Whitney v. Whitney, 49 Barb. 319; Wood v. Wood, 83 N. Y. 575). The fullness of the protection to the wife’s property rights thus afforded by the civil courts is illustrated by Neilitz v. Neilitz, (307 N. Y. 882). It seems to us that, to make such protection efficient and complete, she should be allowed to appear as complainant against her husband when he steals her money or valuables. We are not fearful, as was the court in 1863 in Longendyke v. Longendyke (44 Barb. 366, 369), that this will “ involve the husband and wife in perpetual controversy and litigation ” or sow the seeds of perpetual discord and broil ”. The authorization of civil suits by spouse against spouse brought no such a rash of litigation. The good sense and careful judgment of prosecutors and police, judges and juries, must be relied on not to turn into larcenies petty disagreements over personal property. In these, as in all criminal cases, guilt, including the element of intent, must be proven beyond a reasonable doubt, taking into account all relevant circumstances.

As distinguished from what may be called policy considerations, appellant argues from statutory construction. New York’s statutory definition of larceny, he points out, has not changed materially since 1830 (compare Bev. Stat. of N. Y. [1829] [part IV, ch. I, tit. Ill, art. V] with Penal Code, § 528 [1881], and present Penal Law, § 1290). He, therefore, argues that, since the early statutes did not cover misappropriation of a wife’s property by her husband, and since the Married Women’s Acts said nothing about larceny, the criminal law in this connection, as distinguished from the civil law of property rights, remains unchanged. He asks us to draw the conclusion that there is no statute making such misappropriation a crime and that such a result cannot, under the general rule (see People v. Benc, 288 N. Y. 318, 323), be brought about by the courts, but requires legislative action. Agreeing to the premises, we reject the conclusion. The larceny statutes, old and new, penalize, in varying verbiage, the wrongful taking of the property of another. Before the Married Women’s Acts, the existing larceny laws were inapplicable to a husband’s taking of his wife’s chattels, but only because such chattels did not belong to “ another ” but, under the old fictions, belonged to the husband himself. So, when the wife became another ”, the larceny statutes without necessity of amendment covered her losses as well as those of any other lawful owner of property. We cannot, at this late date, discover the actual legislative intent, if any, nor can we refuse to apply an old plain statute to a new plain fact within the statute’s coverage.

Lewis, Oh. J., Conway, Dye, Fuld, Fboessel and Van Voobhis, JJ., concur.

Order affirmed.


author: Ftjed, J. Fbobssel, J.

text:
    Gussie Perlmutter, Respondent, v. Beth David Hospital, Appellant and Third-Party Plaintiff. Blood Transfusion Association, Third-Party Defendant.
    Argued October 14, 1954;
    decided December 31, 1954.

      Sidney N. Zipser for appellant.
    I. When defendant hospital supplied blood to plaintiff patient for a blood transfusion, the relationship between the hospital and patient was not one of vendor and vendee so as to charge defendant hospital with implied warranties under the Sales Act. (Schloendorff v. Society of N. Y. Hosp., 211 N. Y. 125; Phillips v. Buffalo Gen. Hosp., 239 N. Y. 188; Carlson, Holmes & Bromstad v. Stewart & Co., 147 Misc. 607; Cole v. Levy, 212 App. Div. 84; Maylender v. Fulton Co. Gas & Elec. Co., 131 Misc. 514; Agar v. Orda, 264 N. Y. 248; Glass & Co. v. Misroch, 239 N. Y. 475; Temple v. Keeler, 238 N. Y. 344; Holy Trinity Church v. United States, 143 U. S. 457; Bakal v. University Heights Sanitarium, 277 App. Div. 572, 302 N. Y. 870.) II. The Sales Act was not intended to apply to this case. (Agar v. Orda, 264 N. Y. 248; Glass & Co. v. Misroch, 239 N. Y. 475; Brown & Co. v. Darling & Co., 238 App. Div. 487; Bryant v. Presbyterian Hosp. in City of N. 7., 304 N. Y. 538; Kaufman v. Israel Zion Hosp., 183 Misc. 714; Parker v. State of New York, 280 App. Div. 157; Bowser & Co. v. McCormack, 230 App. Div. 303; Fairbank Canning Co. v. Metzger, 118 N. Y. 260; Condict v. Onwood Constr. Co., 210 N. Y. 88.) III. The complaint fails to state facts sufficient to constitute a cause of action and the courts below erred in failing to dismiss the complaint pursuant to rules 106 and 112 of the Rules of Civil Practice. (May Metropolitan Corp. v. May Oil Burner Corp., 290 N. Y. 260; Green v. Doniger, 300 N. Y. 238; Bolivar v. Monnat, 232 App. Div. 33; Schloendorff v. Society of N. Y. Hosp., 211 N. Y. 125; Dillon v. Rockaway Beach Hosp., 284 N. Y. 176; Bakal v. University Heights Sanitarium, 302 N. Y. 870; Horden v. Salvation Army, 199 N. Y. 233; Parker v. State of New York, 280 App. Div. 157; Hamburger v. Cornell Univ., 240 N. Y. 328; Bryant v. Presbyterian Hosp. in City of N. Y., 304 N. Y. 538.)

      Harold W. Hayman and William A. Hyman for respondent.
    I. On this motion attacking the legal sufficiency of the complaint, all the material allegations of fact therein must be taken as true. The complaint alleges that defendant sold blood to plaintiff and plaintiff paid defendant therefor. That is a material allegation of ultimate fact and not a conclusion of law. Therefore, there was a sale and the complaint states a good cause of action for breach of the implied warranties of quality which accompanied the sale. (Green v. Doniger, 300 N. Y. 238; O’Neil Supply Co. v. Petroleum Heat & Power Co., 280 N. Y. 50; Staten Is. Edison Corp. v. Maltbie, 270 App. Div. 55, 296 N. Y. 374; de Cordova v. Sanville, 214 N. Y. 662; Matter of Sears, Roebuck & Co. v. McGoldrick, 279 N. Y. 184; Rinaldi v. Mohican Co., 225 N. Y. 70; Race v. Krum, 222 N. Y. 410; Ryan v. Progressive Grocery Stores, 255 N. Y. 388; Greco v. Kresge Co., 277 N. Y. 26.) II. As a matter of law, the transaction between plaintiff and defendant was a sale. (Temple v. Keeler, 238 N. Y. 344; Schloendorff v. Society of N. Y. Hosp., 211 N. Y. 125; Phillips v. Buffalo Gen. Hosp., 239 N. Y. 188; People v. Clair, 221 N. Y. 108; Holy Trinity Church v. United States, 143 U. S. 457; Agar v. Orda, 264 N. Y. 248; Glass & Co. v. Misroch, 239 N. Y. 475; Kaufman v. Israel Zion Hosp., 183 Misc. 714; Bowser & Co. v. McCormack, 230 App. Div. 303; Fairbank Canning Co. v. Metzger, 118 N. Y. 260; Condict v. Onward Constr. Co., 210 N. Y. 88.) III. There is no public policy which requires the court to hold that the transaction was not a sale and that the implied warranties of section 96 did not accompany the transaction. (White v. Prospect Heights Hosp., 278 App. Div. 789; Necolayff v. Genesee Hosp., 270 App. Div. 648, 296 N. Y. 936; Schloendorff v. Society of N. Y. Hosp., 211 N. Y. 125;
      Phillips v. Buffalo Gen. Hosp., 239 N. Y. 188; Sutherland v. New York Polyclinic Med. School & Hosp., 273 App. Div. 29, 298 N. Y. 682; Pivar v. Manhattan Gen., 279 App. Div. 522; Sheehan v. North Country Community Hosp., 273 N. Y. 163; Holtfoth v. Rochester Gen. Hosp., 304 N. Y. 27.)
   Ftjed, J.

This is, in effect, an action to recover damages for personal injuries sustained by plaintiff while a patient in the hospital maintained and operated by defendant. The injuries allegedly resulted from the transfusing of “ bad ” blood, supplied by the hospital for a price as part of the customary services rendered by the hospital to its patients. The complaint contains no allegations of negligence, but rather seeks recovery upon the theory that the supplying of blood constituted a sale within the Sales Act and that, as a consequence, there attached implied warranties imposed by that statute that the blood was “ reasonably fit for [the] purpose ” for which required and of “ merchantable quality ” (Personal Property Law, § 96, subds. 1, 2).

More precisely, the complaint recites that, while plaintiff was receiving medical care and treatment as a patient in defendant hospital — ■ where she was paying for “ room and board and the usual hospital facilities * * * and services” — she received a blood transfusion; that the blood used in the transfusion was sold ” by defendant to plaintiff for $60; and that defendant, who knew the purpose for which the blood was to be used and upon whose skill and judgment ” plaintiff “ relied ”, impliedly warranted that the blood was “ fit ” for such intended purpose, was of merchantable quality,” was pure and harmless and contained no injurious substances, agents, viruses, germs or impurities ”. However, the complaint continues, the blood was not fit or of merchantable quality and “ contained jaundice viruses and injurious substances, agents and impurities,” with the result that plaintiff became ‘ ‘ afflicted with homologous serum jaundice ” or “ homologous serum hepatitis ”. Damages of $50,000 are sought.

Defendant moved under rules 106 and 112 of the Rules of Civil Practice to dismiss the complaint for insufficiency. The court at Special Term denied the motion; the Appellate Division unanimously affirmed, granted defendant permission to appeal and certified the question, “ Was Special Term correct in denying defendant’s motion to dismiss the complaint herein? ”

The answer to that question turns upon whether the transaction described in the complaint constitutes a sale under the Sales Act, whether, in other words, there was created a vendorvendee relationship between defendant and plaintiff.

A hospital is devoted to the care and healing of the sick. Not only does it gather in its wards “ a company of skilled physicians and trained nurses ” and place their services “ at the call of the afflicted ” (Schloendorff v. Society of N. Y. Hosp., 211 N. Y. 125, 135), but it also offers to patients resorting to the hospital the benefit of facilities ” and equipment, developed through medical science, “ that would not otherwise be available.” (Hamburger v. Cornell Univ., 240 N. Y. 328, 336.) The essence of the contractual relationship between hospital and patient is readily apparent; the patient bargains for, and the hospital agrees to make available, the human skill and physical materiel of medical science to the end that the patient’s health be restored.

Such a contract is clearly one for services, and, just as clearly, it is not divisible. Concepts of purchase and sale cannot separately be attached to the healing materials — such as medicines, drugs or, indeed, blood — supplied by the hospital for a price as part of the medical services it offers. That the property or title to certain items of medical material may be transferred, so to speak, from the hospital to the patient during the course of medical treatment does not serve to make each such transaction a sale. " ' Sale ’ and ' transfer ’ are not synonymous ”, and not every transfer of personal property constitutes a sale. (Halsted v. Globe Ind. Co., 258 N. Y. 176, 179.) It has long been recognized that, when service predominates, and transfer of personal property is but an incidental feature of the transaction, the transaction is not deemed a sale within the Sales Act. (See Racklin-Fagin Constr. Corp. v. Villar, 156 Misc. 220; Saugus v. B. Perini & Sons, Inc., 305 Mass. 403; Stevens Implement Co. v. Hintze, 92 Utah 264; Crystal Recreation, Inc., v. Seattle Assn. of Credit Men, 34 Wn. 2d 553; see, also, 1 Williston on Sales [Rev. ed., 1948] §§ 54-55a, pp. 144-149; Benjamin on Sale [8th ed., 1950] p. 166; 77 C. J. S., Sales, § 2, p. 584; cf. Babcock v. Nudelman, 367 Ill. 626.) As Benjamin put it in Ms work on Sale (op. cit., p. 166), “ a contract of sale is not constituted merely by reason that the property in the materials is to be transferred * * *. If they are simply accessory to work and labour, the contract is for work, labour and materials. Such is the case of medicine supplied by a medical man to a patient, or by a farrier to a horse ”.

Thus, a contract to paint a picture has been held to be a contract for work, labor and services rather than a sale, although the title to the canvas is actually transferred to the customer. (See Racklin-Fagin Constr. Corp. v. Villar, supra, 156 Misc. 220; Robinson v. Graves [1935], 1 K. B. 579.) Likewise, where the contract is to construct a Mghway, the furMshing of gravel, even though a specific price was set for that material, was held not a sale. (See Saugus v. B. Perini & Sons, Inc., supra, 305 Mass. 403, 404-405.) And an even more apt illustration is afforded by Babcock v. Nudelman (supra, 367 Ill. 626). That case involved the question whether an optometrist, engaged both in prescribing and furMsMng eyeglasses, was in the business of “ selling tangible personal property within the meaning of the provisions of the Retailers’ Occupation Tax act ” (p. 627). The Illinois Supreme Court, despite the indisputable fact that eyeglasses are tangible personal property, held that furMsMng them was “ merely incidental to the services rendered ” and not within the statute’s coverage (p. 630) ; in the course of its opirnon — and we cull from it solely for its bearing on the problem now before us — the court wrote (pp. 629-630): If it becomes necessary for a physician to furMsh medicine or surgical dressings in effecting a cure, he certainly does not thereby come within the designation of those engaged in a calling which would result in the imposition of a retail tax. The same reasoning applies to dentists even though that calling reqMres the furnishing of certain inlays, fills, or crowns, or even false teeth, if necessary to a completion of the dental service. * * * Thn main object and purpose of optometry is to furMsh service to one requiring a correction of vision. * * * WMle it is true that frames are furnished and their price considered in the ultimate attainment of the purpose, it is purely incidental to the main object sought to be accomplished. ’ ’

While determination, as to whether the essence of a particular contract is for the rendition of services or for the sale of property, may at times be troublesome and vexatious, there is no doubt that the main object sought to be accomplished in this case was the care and treatment of the patient. The supplying of blood by the hospital was entirely subordinate to its paramount function of furnishing trained personnel and specialized facilities in an endeavor to restore plaintiff’s health. It was not for blood — or iodine or bandages — for which plaintiff bargained, but the wherewithal of the hospital staff and' the availability of hospital facilities to provide whatever medical treatment was considered advisable. The conclusion is evident that the furnishing of blood was only an incidental and very secondary adjunct to the services performed by the hospital and, therefore, was not within the provisions of the Sales Act. The fact that the treatment might have come from a physician, while the blood came from the hospital, is of no operative consequence; it is the transaction, regarded in its entirety, which must determine its nature and character. As long as it involves the medical care and treatment of a patient at a hospital, it is immaterial that it is the doctor who may diagnose and treat and the hospital which may supply facilities and material.

If, however, the court were to stamp as a sale the supplying of blood — or the furnishing of other medical aid' — it would mean that the hospital, no matter how careful, no matter that the disease-producing potential in the blood could not possibly be discovered, would be held responsible, virtually as an insurer, if anything were to happen to the patient as a result of “ bad ” blood. (See, e.g., Blessington v. McCrory Stores Corp., 305 N. Y. 140, 146; see, also, 1 Williston, op. cit., §§ 237, 237a.) According to the complaint, the blood administered to plaintiff was contaminated ” with jaundice viruses, with the result that she was afflicted with homologous serum hepatitis or serum jaundice. Informed opinion is at hand that there is today neither a means of detecting the presence of the jaundice-producing agent in the donor’s blood nor a practical method of treating the blood to be used for transfusion so that the danger may be eliminated (see, e.g., Wiener, Medicolegal Aspects of Blood Transfusion, A Report of the Committee on Medicolegal Problems of the American Medical Assn. [1953]; Portis, Diseases of the Digestive System [3d ed., 1953], p. 667; Report on Jaundice Following Administration of Human Serum [1943], Public Health Reports, vol. 58, No. 33, pp. 1233, 1241), but, whether that is so or not, the fact is that, if the transaction were to be deemed a sale, liability would attach irrespective of negligence or other fault. The art of healing frequently calls for a balancing of risks and dangers to a patient. Consequently, if injury results from the course adopted, where no negligence or fault is present, liability should not be imposed upon the' institution or agency actually seeking to save or otherwise assist the patient. (Cf., e.g., Parker v. State of New York, 280 App. Div. 157, motion for leave to appeal denied 304 N. Y. 989.)

Not at all analogous to the case before us is our decision — relied upon by plaintiff — holding that, “where a customer enters a restaurant, receives, eats and pays for food, delivered to him on his order, the transaction is a purchase of goods.” (Temple v. Keeler, 238 N. Y. 344, 346.) While it has been said that a restaurant owner does not sell food, but rather renders a service, the fact is that there is “ a sale of what is actually used”. (Temple v. Keeler, supra, p.347.) And, indeed, semantics apart and looking at the transaction for what it actually is, there can be no doubt that, when one goes into a restaurant, he does so in order to buy what the restaurant in truth has to sell, namely, food. That is not so, though, when one enters a hospital as a patient; he goes.there, not to buy medicines or pills, not to purchase bandages or iodine or serum or blood, but to obtain a course of treatment in the hope of being cured of what ails him.

It follows from the foregoing that the complaint should be dismissed, unless, as the court at Special Term believed, we are foreclosed by the allegation that the hospital “ sold ” the blood to plaintiff. To adopt such a view represents an oversimplification of the case. The sufficiency of the complaint cannot be made to turn on the presence of any particular word or words. It is the totality of the facts themselves which must be examined to determine the complaint’s validity, not plaintiff’s characterization of them or the conclusion which she seeks to draw from them. (See, e.g., Greeff v. Equitable Life Assur. Soc., 160 N. Y. 19, 29; Red Robin Stores v. Rose, 274 App. Div. 462, 465; cf. Skinner Bros. Mfg. Co. v. Shevlin Eng. Co., 231 App. Div. 656, 659, affd. 257 N. Y. 562.) In this case, it is plain that what the complaint alleges and truly describes is not a purchase and sale of a given quantity of blood, but a furnishing of blood to plaintiff for transfusion at a stated sum, as part of, and incidental to, her medical treatment.

Our conclusion that the complaint fails to state a cause of action for breach of implied warranty under the Sales Act leaves untouched the question of defendant’s liability for negligence, if any.

The order of the Appellate Division and that of Special Term should be reversed, with costs in all courts, and the matter remitted for further proceedings in accordance with this opinion. The question certified is answered in the negative.

Fbobssel, J.

(dissenting). The action is for breach of warranty under section 96 (subds. 1, 2) of the Personal Property Law. In her complaint, plaintiff asserts, among other things, that she was a patient in defendant’s hospital; that she agreed to pay, and did pay, for room and board and the usual hospital facilities maintained and services supplied by defendant She also separately alleges that she purchased ” from defendant, and “ defendant sold ” to her, blood for the purpose of transfusion into her blood stream — to defendant’s knowledge — and that she paid to defendant therefor the sum of $60.00 ” — an ordinary transaction of goods supplied under a * * * sale ” (Personal Property Law, § 96).

Although these and related allegations clearly set forth a simple action for breach of warranty (see Civ. Prae. Act, § 241; 1 Abbott’s Forms of Pleading [3d ed.], forms 732-734), the majority now hold that the complaint must be dismissed before any evidence is taken, because what it “ alleges and truly describes is not a purchase and sale of a given quantity of blood, but a furnishing of blood to plaintiff for transfusion at a stated sum, as part of, and incidental to, her medical treatment ”. Aside from the fact that this is not really what the complaint alleges, it should be noted that plaintiff is not suing defendant for the service of injecting the blood into her bloodstream, but simply for the sale of bad ” blood for a separate valuable consideration, over and above the consideration she was paying for room and board and the usual hospital facilities * * * and services ”.

Section 82 (subd. 2) of the Personal Property Law defines a sale as “ an agreement whereby the seller transfers the property in goods to the buyer for a consideration called the price ”. In Rinaldi v. Mohican Co. (225 N. Y. 70, 73), we stated that “ we have no doubt that section 96, expressed as it is in general terms, applies to all sales, including sales of food, and that any rules hitherto applied inconsistent with this section are abolished.” Section 156 (subd. 1) of the Personal Property Law provides: Buyer ’ means a person who buys * * * goods ‘ Seller ’ means a person who sells * * * goods”; “ ‘ G-oods ’ include all chattels personal other than things in action and money.”

Section 275 of the Civil Practice Act requires that we construe pleadings “ liberally ” and with a view to substantial justice between the parties ”. And we have held accordingly (Condon v. Associated Hosp. Service, 287 N. Y. 411; Wainwright & Page v. Burr & McAuley, 272 N. Y. 130). It is also settled beyond dispute that on a challenge to the legal sufficiency of a complaint, we accept as true its allegations, and any reasonable inference that may be drawn therefrom (Condon v. Associated Hosp. Service, supra; Garvin v. Garvin, 306 N. Y. 118, 120; Schwartz v. Heffernan, 304 N. Y. 474, 478; Green v. Doniger, 300 N. Y. 238; Latham v. Father Divine, 299 N. Y. 22, 26; Nevins, Inc., v. Kasmach, 279 N. Y. 323, 325); and if “in any aspect upon the facts stated ’ ’ plaintiff may recover, the challenge may not be sustained, notwithstanding that the proofs may fall short of establishing the allegations as facts (Dyer v. Broadway Central Bank, 252 N. Y. 430, 432-433; Denihan Enterprises, Inc., v. O’Dwyer, 302 N. Y. 451, 458). The prevailing opinion exempts this case from the operation of these well-established rules.

By decisions of this court, rather than by virtue of any statute, we have held hospitals immune from liability for the negligence of their properly selected physicians and nurses. Formerly, we invoked the theory of implied waiver to exempt charitable hospitals (see Schloendorff v. Society of N. Y. Hosp., 211 N. Y. 125, 128, 129; Hamburger v. Cornell Univ., 240 N. Y. 328). But in Phillips v. Buffalo Gen. Hosp. (239 N. Y. 188, 189), we stated that this doctrine ‘ ‘ is logically weak ’ ’, and in Sheehan v. North Country Community Hosp. (273 N. Y. 163) we repudiated the doctrine altogether. Thus now, if a hospital is to be held immune from liability for the medical acts of its physicians and nurses, that immunity must rest on their status as independent contractors as opposed to servants (Mrachek v. Sunshine Biscuit, 308 N. Y. 116, decided herewith), for a hospital undertakes, not to heal, but merely to supply others who will heal on their own responsibility (Matter of Bernstein v. Beth Israel Hosp., 236 N. Y. 268). This rule has sometimes worked great hardship on persons injured, as, for example, Bryant v. Presbyterian Hosp. in City of N. Y. (304 N. Y. 538), and it should not he extended so as to encompass a sale as here alleged in the face of a positive statute such as section 96 of the Personal Property Law.

Plaintiff is not suing the hospital for any act by a physician, nurse or orderly, but rather for the act of the hospital itself in selling to her for a specific consideration blood containing injurious substances, agents and impurities ”. The doctors and nurses, who constitute the human skill, and for whose negligent medical acts it is immune from liability, had nothing whatever to do with this sale, and therefore the reason underlying the rule granting immunity does not exist here. Indeed, this is recognized by the majority when they concede that plaintiff may have a cause of action for negligence. That being so, by what authority may we withhold from plaintiff the alternative remedy (Greco v. Kresge Co., 277 N. Y. 26) provided by section 96 of the Personal Property Law, and particularly where the hospital has a remedy over against the third-party defendant?

We have held that where a person orders food in a restaurant or ice cream in a drugstore, it constitutes a sale to which the Personal Property Law annexes an implied warranty that the food is reasonably fit for consumption (Temple v. Keeler, 238 N. Y. 344). So it has been held with regard to drugs (Hopkins & Co. v. Silverman, 234 App. Div. 224). We cannot logically differentiate those situations from the one involved here, at least as a matter of pleading.

In the prevailing opinion it is said that the contract alleged in the complaint is “ clearly one for services ” and “ is not divisible ”, for the patient bargains for, and the hospital agrees to make available, the human skill and physical materiel of medical science to the end that the patient’s health be restored ’ ’; and that it is immaterial that it is the doctor who may diagnose and treat and the hospital which may supply facilities and material ”. We have had no difficulty whatever in the past in frequently distinguishing between medical and administrative acts, even when performed by the same person, recognizing that the contract is divisible, and, while we have held hospitals immune when they have carefully selected persons supplying the human skill, we have never extended that doctrine to physical material which was bad, as the impure morphine solution unfit for use ” in Volk v. City of New York (284 N. Y. 279); the defective hot water bag in Iacono v. New York Polyclinic Med. School & Hosp. (269 App. Div. 955, affd. 296 N. Y. 502); and the defective chair in Holtfoth v. Rochester Gen. Hosp. (304 N. Y. 27).

The majority also rest their decision in part on the ground that informed opinion is at hand that there is today neither a means of detecting the presence of the jaundice-producing agent in the donor’s blood nor a practical method of treating the blood * * * so that the danger may be eliminated ’ Thus they rely upon so-called medical reports which are neither in the record nor even mentioned in the briefs — matter which plaintiff has had no opportunity to rebut either by evidence or by argument — indeed, plaintiff is now prevented from furnishing any evidence whatever.

We think the courts below were clearly correct in stating that we may not hold as a matter of law that there was no sale without knowing any of the facts relating to the acquisition of the blood by the plaintiff ”, and plaintiff, under the allegations of her complaint, should be permitted to present her proofs. We should not, on the very first occasion this question is presented to us, dismiss her complaint without giving her an opportunity to establish its allegations, and thereby further extend, on a mere challenge to a pleadng which must be liberally construed, the rule of immunity applicable to human skill to a duly alleged sale transaction by the hospital itself, in the face of the provisions of section 96 of the Personal Property Law.

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

Lewis, Ch. J., Desmond and Van Voobhis, JJ., concur with Fuld, J.; Froessel, J., dissents in an opinion in which Conway and Dye, JJ., concur.

Orders reversed, etc.


author:
      Per Curiam.
     Van Voorhis, J.

text:
    The People of the State of New York, Respondent, v. D. H. Ahrend Co., Inc., Defendant, and Herbert Ahrend, Appellant.
    Argued December 2, 1954;
    decided December 31, 1954.

      Philip 1. Delfin for appellant.
    I. The People have failed to establish the guilt of defendant beyond a reasonable doubt. (People v. Grass, 257 App. Div. 1; People v. Rowan, 179 Misc. 225; People v. McHugh, 271 App. Div. 135; People v. Moore, 142 App. Div. 402; Matter of Avon Bar & Grill v. O’Connell, 276 App. Div. 517; People v. Liquorman, 171 Misc. 535; Houlihan v. Selengut, 175 Misc. 854; People ex rel. Price v. Sheffield Farms-Slawson-Decker Co., 180 App. Div. 615, 225 N. Y. 25; People v. Primrose Wet Wash Laundry Co., 256 App. Div. 1088; People v. Harrison, 183 App. Div. 812.) II. The imposition of a fine of $5,000 or one year in jail, with the alternative of paying $5,000 in certain. installments to the Department of Labor, was excessive under the circumstances. (People v. Abel, 279 App. Div. 623; People v. Buckner, 276 App. Div. 900; People v. Dudgeon, 270 App. Div. 1032; People v. Stein, 279 App. Div. 1048, 280 App. Div. 176.)

      Nathaniel L. Goldstein, Attorney-General (Roy Wiedersum and Wendell P. Brown of counsel), for respondent.
    I. Violations of the Labor Law are malum prohibitum and intent is not an element of the offense or a form of defense. (People ex rel. Price v. Sheffield Farms-Slawson-Decker Co., 225 N. Y. 25; People v. Taylor, 192 N. Y. 398; People v. Primrose Wet Wash Laundry Co., 256 App. Div. 1088; People v. Knapp, 206 N. Y. 373; People v. Grass, 257 App. Div. 1; Matter of McKinney v. Hamilton, 282 N. Y. 393.) II. The sentence was fair, moderate and in the interests of justice. (People v. Rytel, 284 N. Y. 242; People v. Collins, 271 App. Div. 511; People v. McDowell, 279 App. Div. 943; People v. Kienast, 279 App. Div. 943.)
   Per Curiam.

If this appellant, who was not only an officer, but the sole active manager and actual owner of this corporation, did not “ knowingly permit ” his corporation to fail to pay its workmen’s wages, then it is hard to see how anyone could, as an officer, violate section 1272 of the Penal Law. Knowingly ” (see Penal Law, § 3, subd. 4) means merely a knowledge of the existence of the facts constituting the crime. To “ permit ” means to allow to happen, to fail to prevent (see Cowley v. People, 83 N. Y. 464; People ex rel. Price v. Sheffield Farms Co., 225 N. Y. 25, 31). Certainly, defendant knew the workmen were not paid, and he permitted it in the sense that, knowing that fact, he did not prevent its occurrence. We think the true meaning of the statute is this: the corporation itself is, ipso facto, criminally liable for failure to pay, but of its officers, those only are punishable who stand in such a relation to the corporation’s affairs that they actually know of the nonpayment. The purpose is to exculpate nominal officers or any others who are not actually in touch with the corporate financial affairs.

The judgment should be affirmed.

Van Voorhis, J.

(dissenting). Subdivision 2 of section 196 of the Labor Law requires every person carrying on a business to pay weekly to each employee the wages earned to a day not more than six days prior to the date of such payment. Violation of this statutory duty is made a misdemeanor by section 1272 of the Penal Law. In the case of officers of a corporate employer, it was held in People v. Grass (257 App. Div. 1) that liability does not attach unless an officer has aided and abetted the corporation in committing this violation of the Labor Law. By chapter 809 of the Laws of 1941, however, section 1272 of the Penal Law was amended by adding a substantive clause that ‘‘ the officers of any such corporation who knowingly permit the corporation to violate the labor law by failing to pay the wages of any of its employees in accordance with the provisions thereof ” are also guilty of a misdemeanor. Two of the Justices who sat at the Appellate Division dissented from an affirmance of the conviction of appellant, an officer of a corporation which violated this duty, “ on the ground that the People failed to establish beyond a reasonable doubt that the individual defendant knowingly ’ permitted the corporation to violate the Labor Law by failing to pay the wages in question.”

The ground thus stated by the dissenting Justices at the Appellate Division is persuasive. The conviction of appellant can only stand if subdivision 2 of section 196 of the Labor Law and section 1272 of the Penal Law, read in conjunction with each other, are construed to render this crime malum prohibitum in the case of an officer as well as in that of a corporate employer. Under the ruling in People v. Primrose Wet Wash Laundry Co. (256 App. Div. 1088), an individual employer or a corporate employer would be liable, in event of neglect to pay wages earned within six days, regardless of any knowledge or intent. When it came to imposing liability for this offense upon individual officers, however, the Legislature was less drastic. It made them subject to punishment only if they “ knowingly permitted ” the corporation to fail to pay wages earned more than six days previously. A person permits an act when he does not prevent it, although within his power and duty, or by actually doing it himself.” (People v. Knapp, 206 N. Y. 373, 381, 384.) We may assume that appellant had power to prevent the employment of these wage earners, inasmuch as he was president of the company. He evidently lacked power to keep them from going unpaid after their wages had been earned, inasmuch as the corporation was without funds. Assuming that the criminal default lay in permitting these persons to work for this corporation during the period for which their wages are in arrears, it follows that appellant would be liable for permitting them to do so except for legislative use of the word “ knowingly ”. It was not necessary that appellant have knowledge of the unlawfulness of the act or omission, but subdivision 4 of section 3 of the Penal Law does require that before he can be convicted he must know that the facts exist which constitute the act or omission a crime. In this instance, that meant that appellant would have had to have known that these employees were not going to be paid while they were working for this corporation. The word knowingly ” signifies more than mere carelessness, but guilty knowledge, or evil or fraudulent intent (People v. McHugh, 271 App. Div. 135; People v. Moore, 142 App. Div. 402). The use of that word in this statute signifies that a purposeful omission in paying these wages had to be established by the People before a misdemeanor by an officer could be made out. This is more than the usual malum prohibitum statute. Since it is a criminal action, the defendant had to be proved guilty beyond a reasonable doubt. It was not enough to convict of this misdemeanor to establish that the employees of this corporation were not paid during this period. The burden of proving that appellant knowingly permitted them to go unpaid rested upon the People. The burden did not shift to the defendant to establish that default in payment was compelled by circumstances beyond his control. It was incumbent on the People to show that he knew that they were not going to be paid while he was permitting them to work for this corporation.

Not only is there no evidence of this essential fact, bnt the People’s case tended to indicate the opposite. It was proved that the corporation had been doing business on working capital financed through a factor for about a year and a half before this incident occurred. The factoring agreement had no specific expiration date and, according to the testimony of the factor’s president, his firm suddenly stopped factoring appellant’s corporation during the latter part of August, 1951, which was the precise time charged in the information when appellant’s corporation neglected to pay its employees. There is no testimony that previous notice had been given that this factor intended to discontinue the practice of financing this small business, nor is there" reason to assume that appellant failed to rely upon the continuance of this method of financing, or that he learned of the factor’s change in lending policy until these wages had fully accrued. If the officers are guilty of a misdemeanor whenever a corporation that is operating with borrowed capital on a narrow margin encounters financial difficulty, the Legislature should say so in plainer terminology.

The judgment appealed from should be reversed, and the information dismissed, in view of the absence of proof that appellant permitted these employees to work for this corporation with knowledge that their wages would not be paid.

Lewis, Ch. J., Desmond, Dye, Fuld and Fboessel, JJ., concur in Per Curiam opinion; Van Voobhis, J., dissents in an opinion in which Conway, J., concurs.

Judgment affirmed.