author: Desmond, J. Conway, J.

text:
    The People of the State of New York, Respondent, v. Robert Harms, Appellant.
    Argued October 5, 1954;
    decided December 3, 1954.

      Samuel Safronoff and Herbert H. Kunmann for appellant.
    I. The Legislature seeks to regulate rather than prohibit the operation of motor vehicles by junior operators. II. The right of a junior operator to drive “ to and from school ”, as used in section 20 (subd. 1, par. b.) of the Vehicle and Traffic Law, includes the right to operate to and from any function sponsored by, supervised and held on the school premises. (Village of East Hampton v. Mulford, 188 Misc. 1037; Mount Herman Boys School v. Town of Gill, 145 Mass. 139; People v. Gillette, 172 Misc. 847.) III. The definition of “ school ”, as printed on junior operators’ licenses issued subsequent to that issued to defendant-appellant, is not binding in this ease. IV. Acts otherwise innocent and lawful do not become crimes unless there is a clear and positive intent to make them criminal. (People v. Phyfe, 136 N. Y. 554; People v. Shifrin, 301 N. Y. 445; People v. Wallace & Co., 282 N. Y. 417; People v. Adamkiewicz, 298 N. Y. 176; Winters v. New York, 333 U. S. 507.)

      Frank A. Gulotta, District Attorney (Edward Margolin of counsel), for respondent.
    I. The legislative concern with safety on the highways is the controlling standard for interpretation of the statute. II. Any construction of section 20 (subd. 1, par. b) of the Vehicle and Traffic Law which would have the effect of extending a junior operator’s right to drive is contrary to legislative intent. (People v. Gillette, 172 Misc. 847; Matter of Weisse v. Board of Educ. of City of N. Y., 178 Misc. 118; Village of East Hampton v. Mulford, 188 Misc. 1037.) III. School does not include extracurricular activities. (Matter of McMaster v. Owens, 193 Misc. 284, 275 App. Div. 506; City of New York v. New York City Ry. Co., 193 N. Y. 543.) IV. Acts which are mala prohibita are punishable regardless of intent.
   Desmond, J.

Defendant appeals from an affirmance of Ms conviction of the misdemeanor (see Vehicle and Traffic Law, § 70, subd. 1) of violating paragraph b of subdivision 1 of section 20 of the Vehicle and Traffic Law. The charge was that, on December 11, 1953, defendant, wMle under eighteen years of age and being the holder of a “ junior operator’s ” license only, and not being accompanied by a senior (over eighteen) licensed operator, operated an automobile at 10:30 o’clock at night.

At the trial the facts were stipulated thus: The defendant, who is sixteen years of age and the holder of a junior operator’s license, operated his motor vehicle during the hours of darkness, to wit: 10:30 p.m., unaccompanied by a duly licensed operator over the age of eighteen years. The defendant is a high school student and was operating his motor vehicle from Woodmere High School to his home. He had attended an interscholastic basketball game in which his school had participated. * * * high schools solicit their students to purchase tickets to attend their high school basketball games.” The statute (Vehicle and Traffic Law, § 20, subd. 1, par. b) reads thus: “ No operator’s or chauffeur’s license shall be issued to any person under eighteen years of age, except that junior operators’ licenses may be issued to minors who have arrived at the age of sixteen years, but who have not reached eighteen years of age, under rules and regulations to be established by the commissioner, provided, however, that such license shall not entitle a licensee to operate a motor vehicle, other than going to and from school, during the hours of darkness unless accompanied by a duly licensed operator who is over eighteen years of age ”. (Italics supplied.)

The question in the case is as to whether the courts below were correct when they construed the Legislature’s phrase “ going to and from school ” as licensing the use of an automobile, by such a driver, on trips to and from the formal sessions of the educational institution only, and not including extracurricular activities. We agree with the courts below.

The word school ” has a number of different shades of meaning (Webster’s Collegiate Dictionary [5th ed.], p. 889). But when school ” is used without the preceding article in a phrase like going to school ” it means, according to the lexicographers, as well as the usage of the “ man in the street ”, a school session (Oxford Dictionary, Vol. 8, part 2, p. 213). We see no reason for giving it a different connotation here. The general scheme of paragraph b of subdivision 1 is to permit youngsters between sixteen and eighteen years of age, unaccompanied by elder licensees, to drive cars during daylight hours only. The exception as to going to and from school was added to allow a junior operator to drive an automobile during the hours of darkness, if his journey was to or from school sessions. In the wintertime, for instance, darkness comes in late afternoon and the statutory purpose was to make it possible, during those hours, for children under eighteen to drive, without their elders, between their homes and their classes or other routine educational exercises. It would be quite an extension of that idea to hold that such a junior operator could, unaccompanied, drive, at any hour of the night, so long as he was returning from a school function. It appears that on every junior operator’s license now issued, there is printed notice of a regulation made by the Commissioner of Motor Vehicles, specifically stating that driving at night by unchaperoned junior operators is not permitted, except when actually going to or from a regular school session. For affirmance here we are not relying on that legend, which did not appear on this defendant’s license. But, in December, 1953, as now, the statute required that “ The extent to which a holder of a junior operator’s license may operate a motor vehicle thereunder shall be printed on each such license ’ ’. The license here did comply with that mandate since it quoted the statute’s own words as to restricted use.

Much of appellant’s brief is an argument that recreational and social activities sponsored by a school and conducted on school premises are as much a part of the educational process as formal class instruction, etc. That may well be, and our decision does not challenge it. But policy questions are for the Legislature. Our task is merely to discover legislative intent. In doing so here, we keep in mind that this is a public safety law, part of the tireless effort to reduce the number (more than 300 per day) of accidents causing personal injuries on our highways.

Ho one enjoys affirming a misdemeanor conviction for violation of a malum prohibitum statute, but we would have to go far beyond our powers to reverse this one.

The order should be affirmed.

Conway, J.

(dissenting). The defendant, who was sixteen years of age, has been convicted of the misdemeanor (see Vehicle and Traffic Law, § 70, subd. 1) of violating section 20 (subd. 1, par. b) of the Vehicle and Traffic Law. The arresting officer’s record shows that the night was clear, the defendant courteous, that there had been no accident and that no other crime or offense was charged.

The statute involved is a penal statute since it imposes punishment for a wrong against the State (see McKinney’s Cons. Laws of N. Y., Book 1, Statutes [1942 ed.], § 273, and cases cited therein), and it has long been the rule in this State that penal statutes are to be strictly construed against the prosecutor and in favor of the accused (id. § 271, and cases cited therein). Section 21 of the Penal Law, expressly providing to the contrary, does not apply here since, by its terms, section 21 relates only to the provisions of the Penal Law as such. (Indeed, notwithstanding such direction in § 21 we have held that the Penal Law itself is to be strictly construed [see, e.g., People v. Nelson, 153 N. Y. 90].) Purely statutory wrongs cannot be established by implication, and “ acts otherwise innocent and lawful, do not become crimes, unless there is a clear and positive expression of the legislative intent to make them criminal. The citizen is entitled to an unequivocal warning before conduct on his part, which is not malum in se, can be made the occasion of a deprivation of his liberty or property.” (People v. Phyfe, 136 N. Y. 554, 559; People v. Shifrin, 301 N. Y. 445, 447; People v. Wallace & Co., 282 N. Y. 417; People v. Adamkiewicz, 298 N. Y. 176; Winters v. New York, 333 U. S. 507, 515-516.) Accordingly, unless the defendant’s act is a violation of the strict letter of the Vehicle and Traffic Law, he may not be declared a misdemeanant and be stigmatized as a criminal with all of the lifetime consequences thereof. The fact of the conviction cannot be erased even by a Governor’s pardon, for a pardon does not obliterate the record or blot out the fact that defendant has been convicted (see People v. Carlesi, 154 App. Div. 481, affd. 208 N. Y. 547, affd. 233 U. S. 51).

The majority of this court has concluded that the words going to and from school ” are unambiguous and that they must receive a narrow construction, that is, a definition which excludes extracurricular, afterhour social and athletic events, even though the activity be one in which the student’s school is participating and one at which his presence has been solicited by the school.

The majority agrees that the word “ school ” has a number of different shades of meaning but concludes that when “ school ” is used in a phrase like going to and from school ” it means but one thing, a regular school session. With that conclusion we cannot agree. As used in the context of the Vehicle and Traffic Law, the word ‘ ‘ school ” is a noun. As a noun ‘‘ school ’ ’ has numerous meanings (see, e.g., 38 Words and Phrases [Perm, ed.], School; Webster’s New International Dictionary [2d ed.]) and is by no means restricted to a regular school session. Had the Legislature intended to prohibit a junior operator from driving during hours of darkness except when going to and from “ regular school sessions ” it could have said so without difficulty. Instead, it selected the term “ school ” without any qualifications, a term which various courts have characterized as a generic term — a word of broad signification (see 38 Words and Phrases [Perm, ed.], School). It is not proper for this court to give that word a narrow definition so as to bring defendant within the proscription of the statute and have Mm declared a misdemeanant when his acts were otherwise innocent and lawful and the Legislature has not clearly and positively declared them to be criminal.

Extracurricular and athletic activities are sponsored by schools because the authorities deem them to be an essential and integral part of a young man’s schooling. The authorities are aware that education is a broad term embracing mental, moral and physical powers and faculties alike, and that suitable and guided recreation for the youth of their community is necessary if juvenile crime is to be stemmed. The word “ school ” in a broad, or even in the ordinary sense, embraces such activities. As we have said, where the violation of a statute carries with it the stigma of conviction of a crime, the statute must be strictly construed against the State, or, conversely stated, must be liberally construed in favor of the defendant. To say that the term “ school ” means only “ a regular session of school ” is to construe this statute strictly against the defendant for such a conclusion can be reached only by ignoring the numerous broader meanings which the word “ school ” admittedly has.

“ The extent to which a holder of a junior operator’s license may operate a motor veMele * * * shall be printed on each • • * [junior operator’s] license * * (Vehicle and Traffic Law, § 20, subd. 1, par. b.) Prior to defendant’s conviction, junior operators’ licenses carried the bare warning that the licensee was prohibited from operating a motor vehicle during the hours of darkness except to go to and from school. After defendant’s conviction the Commissioner of Motor Vehicles saw fit to have the warning on these licenses specifically state that extracurricular activities were not included in the term “ school ”. We think this indicates a recognition on the part of the Commissioner that, as we have concluded, it would not be unreasonable for a student between the ages of sixteen and eighteen to read the noun ‘ ‘ school ’ ’ to mean what defendant here contends it means, viz., that it includes attending and returning from a basketball game at school. If that be so this conviction may not stand.

We do not believe that, in the circumstances of this case, the construction of the statute by the Trial Justice is such a one as, according to the fair import of the terms of the statute, promotes the ends of justice.

The judgment of conviction should be reversed and the information dismissed.

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

Judgment affirmed.


source: Caselaw Access Project

author: Van Voorhis, J. Froessel, J.

license: Public Domain

text:
    Edith M. Aucock, Appellant, v. Neisner Brothers, Inc., Respondent.
    Argued October 7,1954; reargued November 16, 1954;
    decided December 3, 1954.

      James H. Gilroy, Jr., for appellant.
    Defendant’s negligence was a question of fact for the jury. (Hovey v. State of New York, 261 App. Div. 759, 262 App. Div. 791, 287 N. Y. 663; Wilson v. Jaybro Realty & Development Co., 289 N. Y. 410; Toppi v. McDonald, 128 App. Div. 443, 199 N. Y. 585; Loughran v. City of New York, 298 N. Y. 320; Boylhart v. Di Marco & Reimann, 270 N. Y. 217; McFarlane v. City of Niagara Falls, 247 N. Y. 340; Junkermann v. Tilyon Realty Co., 213 N. Y. 404; Ingersoll v. Liberty Bank of Buffalo, 278 N. Y. 1; Becker v. Liscio, 223 App. Div. 698.)

      Frank G. Pratt and Willard R. Pratt for respondent.
    I. Plaintiff’s evidence presented no question of fact for the jury. (Rohrbacher v. Gillig, 203 N. Y. 413; Hovey v. State of New York, 261 App. Div. 759, 262 App. Div. 791, 287 N. Y. 663; Wilson v. Jaybro Realty & Development Co., 289 N. Y. 410; Brown v. Welsbach Corp., 301 N. Y. 202.) II. Plaintiff was guilty of contributory negligence as a matter of law. (McKay v. Carsons Dept. Store, 263 App. Div. 820.) III. The trial court erred in excluding the photograph of the gum machine, which was claimed to have obstructed access to the handrail.
   Van Voorhis, J.

The Appellate Division directed that the complaint be dismissed upon the ground that plaintiff failed to establish any actionable negligence upon the part of defendant. We think that this disposition of the action was correct. Plaintiff-appellant fell while descending a flight of three steps leading from the street level to the floor level, immediately inside of the entrance to defendant’s store at 195 Genesee Street in the city of Utica, New York. This short stairway was equipped with railings forming three lanes, any one of which was available to plaintiff for entrance and descent. No defect has been established in this stairway, with the alleged exception of the presence of a gum vending machine located at the top of the stairway at the left-hand side of the left lane as plaintiff entered. This machine occupied enough space so that plaintiff could not reach the left handrail in order to take hold of it while passing the machine. The negligence charged is that the vending machine interfered with plaintiff, causing her to lose her balance as she reached with her left hand for the railing behind it. If there had been a solid wall at the left edge of the steps, there would have been no opportunity to make such a contention as plaintiff asserts here. It is only the suggestion of an implied invitation to take hold of the railing in spite of the obstacle presented by the presence of the vending machine that is at the foundation of her claim. We think that this is too attenuated a theory upon which to base liability in this case.

The judgment appealed from should be affirmed, with costs.

Froessel, J.

(dissenting). By affirming the Appellate Division, which reversed the judgment of the trial court based upon a jury verdict, the majority of our court have agreed that the evidence adduced at the trial fails as a matter of law to establish any actionable negligence on the part of the defendant. With this conclusion we cannot concur.

When plaintiff entered defendant’s store to make a purchase, there was before her, at street level, a small terrazzo platform, beyond which were three steps leading down to the store floor proper. Plaintiff, seeking to reach the basement of the store by the shortest and most normal route, proceeded toward the left edge of the platform and steps, intending to use the handrail there in her descent. Upon reaching the edge of the platform, she found her access to the handrail obstructed by a gum ball machine which had been placed alongside the handrail. She stood on the very edge of the top step, and, in her attempt to grasp the handrail by reaching around the gum machine, her foot slipped, causing her to fall and receive serious injuries. Defendant resisted liability upon the ground that no gum machine was present at this location. The jury found plaintiff free from contributory negligence, and the Appellate Division did not disturb that finding.

From the evidence here, it appears that, because of the location of defendant’s gum machine, the left handrail was virtually inaccessible to plaintiff on the top step, and that users of this portion of the stairway were required to lean dangerously far over the steps in order to grasp the handrail before beginning their descent. In practical effect, then, the handrail, or its usable portion, did not extend to the top of the stairway, a condition which was held to be “ dangerous ” in Hovey v. State of New York (261 App. Div. 759, affd. 287 N. Y. 663). This handrail was provided for the safety of the store’s patrons and its very presence invited use.

Under these circumstances, it was well within the jury’s province to find that defendant had failed to exercise reasonable care in so placing the gum machine and in failing to' perceive the potential hazard thereby created for users of the stairway.

The judgment of the Appellate Division should be reversed and that of Trial Term reinstated.

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

Judgment affirmed.


author: Desmond, J. Froessel, J.

text:
    In the Matter of the Claim of Jack Doca, Appellant, against Federal Stevedoring Company, Inc., et al., Respondents. Workmen’s Compensation Board, Respondent.
    Argued October 20, 1954;
    decided December 3, 1954.

      Arthur Hutter and Samuel Friedlander for appellant.
    I. Claimant having filed no claim for compensation, having at no time submitted to the jurisdiction of the board, never having knowingly accepted any benefits from the award, having at the earliest opportunity contested its jurisdiction, and having consistently maintained that position, the board did not have and never obtained jurisdiction over his person. (Meaney v. Keating, 200 Misc. 308, 279 App. Div. 1030, 305 N. Y. 660; Matter of Farquhar v. Godwin, 250 App. Div. 805; Matter of Glowney v. Statler’s Restaurant, 267 App. Div. 1020; Matter of Campana v.

      Prudential Ins. Co. of America, 267 App. Div. 1007; Rogers v. Decker, 131 N. Y. 490.) II. The acceptance of payments does not confer jurisdiction nor does it bar claimant from urging lack of jurisdiction. (Matter of Doey v. Howland Co., 224 N. Y. 30; Risley v. Phenix Bank of City of N. Y., 83 N. Y. 318; O’Donoghue v. Boies, 159 N. Y. 87; Ferguson v. Crawford, 70 N. Y. 253; Matter of Walker, 136 N. Y. 20; Robinson v. Oceanic Steam Navigation Co., 112 N. Y. 315.) III. The finding of the board that the accident arose out of and in the course of claimant’s employment is unsupported by any evidence. What evidence there is establishes that it did not so arise, that claimant had completely separated himself from his employment at the time of the accident. (Matter of Ross v. Howieson, 232 N. Y. 604; Matter of Leatham v. Thurston & Braidich, 264 App. Div. 449, 289 N. Y. 804; Matter of Stork Restaurant v. Boland, 282 N. Y. 256.) IV. The presumption under section 21 of the Workmen’s Compensation Law does not and cannot take the place of evidence. Findings must be supported by the evidence. (Matter of Kopec v. Buffalo Brake Beam-Acme Steel & Malleable Iron Works, 304 N. Y. 65; Matter of Lorchitsky v. Gotham Folding Box Co., 230 N. Y. 8; Matter of Eldridge v. Endicott, Johnson & Co., 228 N. Y. 21; Matter of Belcher v. Carthage Mach. Co., 224 N. Y. 326; Matter of Cooley v. Heaney Co., 249 N. Y. 395; Matter of Dyviniek v. Buffalo Courier Express Co., 296 N. Y. 361; Matter of Wilson v. General Motors Corp., 298 N. Y. 468; Matter of McCormack v. National City Bank of N. Y., 303 N. Y. 5.) V. The statements in the doctors’ reports, not having been offered by claimant, are not admissible and may not be considered. ' VT. Hearsay statements are inadmissible and may not be considered in reaching an award. An award resting on hearsay statements cannot stand. (Matter of State Treasurer v. West Side Trucking Co., 233 N. Y. 202; Matter of Belcher v. Carthage Mach. Co., 224 N. Y. 326; Matter of Case, 214 N. Y. 199; Newburger v. American Sur. Co., 242 N. Y. 134.) VII. The accident, under the authorities, did not happen in the course of employment. (Matter of Van Riper v. Newman, 250 App. Div. 801; Matter of Di Salvio v. Menihan Co., 225 N. Y. 123; Hannigan v. Technola Piano Co., 204 App. Div. 748; Matter of Urban v. Topping Bros., 184 App. Div. 633; Matter of McInerney v. Buffalo & Susquehanna R. R. Corp., 225 N. Y. 130; Adams v.
      Uvalde Asphalt Paving Co., 205 App. Div. 784. VIII. The application for a rehearing and for annulment of the award, having been based primarily on matters of law and lack of jurisdiction by the board, was properly made. Claimant never having been heard by the board, his application should have been granted. (Matter of Lawrence v. Meyer-Garry, Inc., 278 App. Div. 990; Matter of Reiss v. Standard Garment Co., 281 App. Div. 720; Matter of Schlenker v. Garford Motor Truck Co., 183 App. Div. 166.) IX. The decision of the board is inconsistent and self-contradictory. It places claimant in a wholly impossible situation.

      Morgan P. Bisselle and Warren G. Tucker for Federal Stevedoring Company, Inc., and another, respondents.
    I. The board had jurisdiction of both the subject matter of this proceeding and the person of the claimant. (Meaney v. Keating, 200 Misc. 308, 279 App. Div. 1030, 305 N. Y. 660.) II. There is substantial evidence to support the board’s finding of fact that the claimant sustained an accidental injury arising out of and in the course of his employment. (Matter of Daus v. Gunderman & Sons, 283 N. Y. 459; Matter of McGrinder v. Sullivan, 290 N. Y. 11; Matter of Hoffman v. New York Central R. R. Co., 290 N. Y. 277.) III. By the appellant’s own statements and contentions before the board, the questions of jurisdiction and of propriety of the compensation award are determined by the decisions of the courts in the common-law action. IV. Claimant’s application for rehearing was properly denied.

      Nathaniel L. Goldstein, Attorney-General (Roy Wiedersum and Wendell P. Brown of counsel), for Workmen’s Compensation Board, respondent.
    Appellant’s contentions that the Workmen’s Compensation Board had no jurisdiction of the person or of the subject matter are totally without substance. (Matter of Bollard v. Engel, 278 N. Y. 463; South Buffalo Ry. Co. v. Ahern, 303 N. Y. 545, 344 U. S. 367; Meaney v. Keating, 200 Misc. 308, 279 App. Div. 1030, 305 N. Y. 660.)
   Desmond, J.

This is an unusual workmen’s compensation case, since here it is the permanently disabled workman who appeals from an order affirming an award to himself. Presumably, appellant, although he has actually received, from the carrier, payments of workmen’s compensation totaling $2,400 and has had his medical and hospital bills to the extent of $14,000 paid by the carrier pursuant to order of the compensation board, wishes the award set aside so that he may proceed with a pending third-party suit against his own employer (respondent Federal). The theory of that suit is, of course, that when appellant was struck and injured by an automobile-driven crane or lift owned by Federal, he (appellant) was out of his employment, having finished his work for the day. On the other hand, it is to be presumed that the reason why the respondent insurance carrier is insisting that this is a compensation case is because this same insurer is the carrier on the policy insuring Federal against general or common-law liability.

On March 9, 1950, just before 6:00 p.m., claimant, who had just “ checked out ” at the India Street Pier in Brooklyn, where he worked for respondent Federal, was walking past or near the “ Java Street Pier ” when he was run down and injured by some sort of crane belonging to, and operated by, his employer Federal. There is no testimony or documents in the record to show just what he was doing when hurt. Appellant never, at any time, filed a workmen’s compensation claim but, on the day after the accident, respondent Federal filed with the Workmen’s Compensation Board a report (see Workmen’s Compensation Law, § 110) of the injury. A few days later, the carrier, without awaiting action by the board (see Workmen’s Compensation Law, § 25), began paying claimant $32 per week and so notified the board on the usual form. On March 21, 1950, the employer, on the board’s form, sent in another report of injury (all these are routine procedures, and there is no showing of any fraud or bad faith). Both those reports of injury filed by the employer stated details as to the place and character of the accident and together they gave information that appellant had finished work and was walking nearby when he was hit. Then, and still before any action by the board, a series of physicians’ and hospital reports were filed with the board, which reports stated, as history given by appellant, that appellant was injured while working. On May 1, 1950, while compensation was still being paid (without award) and while claimant was still in the hospital undergoing treatment, there was sent by the board to claimant and to the employer and the insurance carrier, a notice of hearing, on a printed form which stated that it was not necessary for any of the parties to attend the hearing, that any party who wished could submit further evidence and that if no further evidence should be submitted, the board would, on its own motion, make, on May 19, 1950, a decision requiring the carrier to make $32 per week payments of compensation (such as had already been made) and to continue such payments. This notice, under the heading of “ Decision ” (to be made) says: “ Accident notice and causal relation established ”. We take that as notice that the board intended, in the absence of contest, to make a finding that this was a compensable accident. Apparently, no one appeared and the decision and award was accordingly made, as the notice had said that it would be made. Notice of such decision and award was sent to claimant, employer and carrier. Doca v. Federal Stevedoring Co., the first suit at law brought by this injured man against this same employer on this same accident, held (305 N. Y. 648) that the payment of compensation and medical expenses by this carrier to this appellant gave the board jurisdiction just as if a formal claim had been filed by the employee either with his employer or with the board. In another case, Meaney v. Keating (305 N. Y. 660), decided the same day as Doca v. Federal Stevedoring Co. (supra), we similarly held that the payment of workmen’s compensation by the carrier gives jurisdiction to the board even though no formal claim is ever filed by the injured worker. That disposes of the appellant’s argument here that the award which he is now contesting was made without jurisdiction.

As a basis for affirmance, it is suggested that claimant is estopped or concluded from questioning the compensation award since, in his suit against his employer (305 N. Y. 648, supra), it was held that he could not maintain a common-law negligence action because he had been awarded compensation. However, it may be that, while he could not, in a common-law suit, collaterally attack the compensation award which stood unreversed, he can, as he is now doing, attack it directly by appeal, so we will not further discuss that point.

Before reciting briefly the further steps taken in the workmen’s compensation proceeding, we point out that the foregoing leaves for us, on this appeal, one question only: that is, was there before the board sufficient evidence, or a sufficient showing of any kind, of an accident arising out of and in the course of the employment, on which to hase an award? Of course, the position here is that a claimant is denying the existence of such evidence, and a strong argument could be made that a claimant who has, over a considerable period of time, accepted large amounts of compensation cannot be heard to question the existence of jurisdictional facts. However that may be, we proceed to a statement of what was before the board at various times.

Between May, 1950, and May, 1951, successive notices were sent by the board to claimant, carrier and employer, in each instance stating that the board would, on a given date, make its decision directing the carrier to continue the payments, and in each instance the board did so. During all this time, the $32 per week payments were being made by the carrier. Before any appearance of any Idnd was made for claimant in any of these board proceedings, he commenced the common-law suit above referred to wherein a motion for summary judgment was made by Federal on the ground that plaintiff’s sole remedy was under the Workmen’s Compensation Law, which motion was denied at Special Term, but the order was reversed and the motion granted at the Appellate Division, and that summary judgment for defendant was, as aforesaid, affirmed in this court (Doca v. Federal Stevedoring Co., 305 N. Y. 648, supra). Another, and identical, suit was commenced and is now pending. The first appearance before the board by anyone on behalf of the injured man seems to have been on November 15, 1951 (apparently the fifth compensation hearing), while the first common-law suit was pending. An attorney for Doca came before the board and, in discussion there, it turned out that claimant had refused (in August, 1951) to accept further payments of compensation because of the pendency of his common-law suit, and because of his assertion that the case was not one for workmen’s compensation. Doca’s lawyer stated at the November, 1951, hearing that he did not wish any further award made, but asked that the matter be held in abeyance. There was another hearing on January 8, 1952, at which some unknown person asked that the findings be rescinded, but this person refused to give his name and the referee made a new award tip to date. In June, 1952, an attorney, who had a written authorization from appellant to appear specially before the board, appeared at a hearing and requested of the referee that the compensation matter be held in abeyance pending the conclusion of the Supreme Court suit, but the referee refused so to do on the theory that the board had acquired jurisdiction and would continue to exercise it unless and until the courts held otherwise. The referee then proceeded to make a further award up to that date. In September, 1952, the same attorney, representing appellant, came to a hearing and again asked that the compensation matter be held in abeyance, stating that the accident had occurred after working hours and after appellant had left his place of employment. The carrier pointed out that various awards had been made and that no appeal had been taken, and the referee stated that he would continue the award. In November, 1952, at still another hearing, with the claimant’s attorney present as well as a representative of the employer and carrier, and it appearing that the carrier was still sending the checks and that appellant was sending them back, the referee ordered the case closed because of claimant’s refusal to accept jurisdiction. Appellant’s attorney was still asking the referee to hold the matter open pending a decision in this court of his appeal in the common-law suit. In April, 1953, a few days before we affirmed dismissal of the first common-law suit (305 N. Y. 648, supra), there was a hearing before the board (not the referee), at which hearing appellant’s attorney was present and at which there was some colloquy, and, after which hearing and after our determination in the common-law suit, the board, in April, 1953, reversed its referee’s decision closing the case. The board’s holding was that, on the basis of the evidence before the board, the accident arose out of and in the course of employment since appellant had not had time to separate himself from the dangers of his employment, also that the acceptance by him of payments up to August 17,1951, indicated that he understood that his injury came within the Compensation Law. The board gave notice to appellant and others of this decision, and later made appropriate findings accordingly, closing the case since appellant was refusing to accept the compensation checks. Appellant then moved the board for review and annulment of the award but this was denied and he took an appeal to the Appellate Division, Third Department, which unanimously affirmed. The Appellate Division’s opinion pointed out that, at the time the board made its first decision awarding compensation to appellant, there were on file not only the employer’s two reports of accident hut a number of physicians’ reports, reciting that appellant had been injured while working. The Appellate Division’s opinion then pointed to section 21 of the act, which sets up a presumption that a claim comes within the provisions of the act unless there be substantial evidence to the contrary. The Appellate Division wrote that, although appellant was given the opportunity, by notices of hearing, to produce evidence to the contrary, he never did so, and that when his attorney, by letter, asked the board for review and rehearing, he filed only an unverified statement and did not sufficiently inform the board as to what proof he could produce to the contrary. We hold that it was discretionary with the board whether or not to grant a rehearing, since appellant had failed to appear at numerous hearings of which he and his attorney had notice.

The real question is whether there was before the board, when it made its various awards, a sufficient showing, in any form, of an accident arising out of and in the course of employment. Technically, it may be that section 21 (“ that the claim comes within the provisions ” of the act) does not apply here since appellant never did, in fact, file a claim. On the other hand, the word claim seems to be used in compensation law to describe any proceeding before the board no matter how initiated, and there is no doubt that such a proceeding can be (see Meaney v. Keating, supra), and here was, instituted by notices from the employer. If the section 21 presumption can apply where no claim has been filed by the injured man, then this is a case where the presumption may properly be made use of since, for a period of more than a year, this appellant received and retained compensation payments and never appeared before the board despite many notices and despite express notice that the board was going to make, and did make, findings of compensable accident, etc. If the presumption does not apply, there is still basis, we think, for affirmance and for a holding that the board had sufficient ground for the making of its finding of compensable accident. It is the decisional law, of course, that, while hearsay evidence is admissible in compensation proceedings, there must be a residuum of common-law evidence (Matter of Carroll v. Knickerbocker, 218 N. Y. 435). However, that rule has no place here. It governs when the party against whom the award is made questions the sufficiency of the proof but that is not our situation. This is simply a case where an injured workman, having been amply put on notice that the board, on information before it, intended to make a finding that his accident arose out of and in the course of his employment, made no protest until long after a whole series of awards had been made and after he had received a considerable sum of money and the benefit of very large medical payments. The board had before it a showing, in the form of employer’s notices and physicians’ reports, that this was a compensable accident and when appellant made no objection to the making of these awards but, on the contrary, accepted the payments for more than a year, he cannot now be heard to question the fact. In Matter of Ahern v. South Buffalo Ry. Co. (303 N. Y. 545, affd. 344 U. S. 367), we held that the acquiescence of an employer in an award, even when the jurisdictional facts were not present, bound the employer (see 303 N. Y. 545 et seq.). Attention is called, also, to Matter of Bollard v. Engel (278 N. Y. 463) and similar cases (Matter of Kleid v. Carr Bros., 300 N. Y. 270, 272), holding that in a workmen’s case, appropriate statements in an employer’s reports of injury are probative evidence against an employer that the accident arose out of and in the course of employment. There is no controlling reason why such statements are not equally probative as against the claimant when his attention is called to them and when he is given notice that findings and an award are to be based on them, and he still makes no protest but accepts the compensation.

This is a tragic case of a permanently disabled young man taking a legally untenable position, but we must apply the law as we find it. We, of course, express no opinion as to his rights, before the compensation board, in.the future.

The order should be affirmed, with costs.

Froessel, J.

(dissenting). Claimant, a young man twenty-three years old, having completed his day’s work on March 9, 1950, cotieededly checked out and departed from the India Street Pier in Brooklyn where he worked as a longshoreman. While walking in front of the Java Street Pier, just before 6:00 p.m., he was run down and horribly maimed by a five-ton automobile crane owned and operated by his employer, and is totally incapacitated. Most of the time until July, 1951, claimant was confined in various hospitals, and was in no condition physically, mentally or emotionally either to appear at any hearing or to give any consideration to the protection of his legal rights.

Claimant never filed a notice of claim with the Workmen’s Compensation Board. But on March 10th, the very day after the accident, claimant’s employer, whose compensation insurance carrier and liability insurance carrier were the same company, promptly filed a report of injury and voluntarily commenced disability and medical payments. The board held several hearings on the claim, but at no time did it take any testimony or receive any evidence other than the employer’s two reports of injury and the several doctors’ reports. Nevertheless, despite this complete absence of any legal evidence, the board found that the accident had arisen out of and in the course of employment, thus confining claimant exclusively to his compensation remedies. Claimant, who desires to prosecute a common-law negligence action against his employer for acts not arising out of his employment, now directly attacks the board’s jurisdictional finding that a claim he never filed resulted from an accident which arose out of and in the course of his employment.

The board was in error when it stated that in Doca v. Federal Stevedoring Co. (305 N. Y. 648) this court held that it would not go behind the board’s finding of accident arising out of and in the course of employment; all that we held in that case was that the employer’s injury report and voluntary payment of compensation conferred an initial jurisdiction on the board which could not be collaterally attacked in a common-law action. However, on a direct appeal from the board’s decision, such as is now before us, a finding that the accident arose out of and in the course of employment, like any other finding of fact, may be sustained only if it is supported by substantial evidence.

Claimant’s failure to appear at the hearings is not evidence. His acceptance of compensation awards is not evidence. The presumption authorized by section 21 of the Workmen’s Compensation Law is not by itself evidence. None of these can be substituted for evidence. As for the hearsay reports, they can be given probative effect only if corroborated by a residuum of legal, or common law ”, evidence. (Matter of Altschuller v. Bressler, 289 N. Y. 463, 468-471; Matter of Carney v. General Cable Corp., 278 App. Div. 868, affd. 303 N. Y. 885; Matter of Carroll v. Knickerbocker Ice Co., 218 N. Y. 435, 439-441; Matter of Belcher v. Carthage Mach. Co., 224 N. Y. 326, 330; Van Cise v. Standard Oil Co. of N. Y., 209 App. Div. 838, affd. 239 N. Y. 587; Matter of State Treasurer v. West Side Trucking Co., 233 N. Y. 202.) But in this record there is no such corroborating legal evidence. Thus the hearsay reports, as well, are not evidence. Since there is nothing else in the entire record, it is obvious that there is no evidence whatsoever to support the board’s jurisdictional finding.

The prevailing opinion asserts (without citation of authority) that the employer’s reports of injury, which we have held to be probative evidence against an employer on the jurisdictional issue, should be likewise regarded as against the employee. But such reports bind an employer because they are his admissions, and are therefore within a well-recognized exception to the hearsay rule. When offered against the employee, however, no such exception obtains, and the employer’s reports come within the salutary policy, as well as the letter, of the rule which deprives them of probative value.

Matter of Ahern v. South Buffalo Ry. Co. (303 N. Y. 545, affd. 344 U. S. 367) is not controlling here. In that case, the “ waiver ” was expressly authorized by section 113 of the Workmen’s Compensation Law which applies only when the New York State compensation award system might conflict or overlap with Federal compensation programs. In such a case, a party may waive his rights under the Federal program and rely solely upon the New York Workmen’s Compensation Law. By doing so he submits to the jurisdiction of the board. But there is no similar provision in our Workmen’s Compensation Law authorizing a waiver of a claimant’s common-law remedies against his employer; indeed, such a provision would often, as possibly in this case, confer an unauthorized jurisdiction on the board. In that case, moreover, the evidence showing the employer’s intent to waive his Federal rights was virtually indisputable. Such is not the case here.

Claimant maintains that the notices of hearings allegedly mailed to his home were never in fact received by him. It is true that the employer paid weekly compensation benefits, as well as some $14,000 on his medical bills. Claimant asserts, however, that the weekly checks were sent to his home and cashed by his wife while he was hospitalized, and only two checks were cashed by him, after which he refused any further payments. This cannot justify or excuse the board’s failure to receive testimony or other legal evidence before finding the necessary facts. Neither claimant’s failure to appear at the compensation hearings nor his acceptance of payments made pursuant to an order entered without jurisdiction can serve to establish the facts essential -to that jurisdiction. Since there is no evidence to support the finding that the accident arose out of and in the course of employment, the board had no jurisdiction to enter the award appealed from, thereby depriving him of his lawful right to institute a common-law action.

The order of the Appellate Division should be reversed, the board’s order set aside, and the matter remitted for further proceedings not inconsistent with this opinion.

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

Order affirmed.


author: Fuld, J. Desmond, J.

text:
    The People of the State of New York, Appellant, v. Minot F. Jelke, Also Known as Mickey Jelke, Respondent.
    Argued October 19, 1954;
    decided December 31, 1954.

      Frank S. Hogan, District Attorney (Richard G. Denser and Warren 8. Tenney of counsel), for appellant.
    I. Defendant’s guilt was proved beyond a reasonable doubt. (People v. Taleisnik, 225 N. Y. 489; People v. Plath, 100 N. Y. 590.) II. A substantial exclusion order was desirable, salutary and in the public interest, and the court had power to make such a ruling on the basis of moral considerations. (Danziger v. Hearst Corp., 304 N. Y. 244; Matter of United Press Assns. v. Valente, 281 App. Div. 395; Hanna v. Mitchell, 202 App. Div. 504, 235 N. Y. 534; Matter of New York State Licensed Bail Agent’s Assn. v. Murtagh, 279 App. Div. 851, 303 N. Y. 1009; People v. Hall, 51 App. Div. 57; Sawyer v. Duffy, 60 F. Supp. 852; Hogan v. State, 191 Ark. 437; Benedict v. People, 23 Col. 126; State v. Johnson, 26 Idaho 609; State v. McCool, 34 Kan. 617; State v. Croak, 167 La. 92; State v. Nyhus, 19 N. D. 326; State v. Adams, 100 S. C. 43; State v. Holm, 67 Wyo. 360; Myers v. State, 97 Ga. 76; State v. Genese, 102 N. J. L. 134; Pierpont v. State, 49 Ohio App. 77; Commonwealth v. Principatti, 260 Pa. 587; State v. Beckstead, 96 Utah 528; Tanksley v. United States, 145 F. 2d 58; Hanfgarn v. Mark, 274 N. Y. 22.) III. Defendant had a public trial. (Matter of Oliver, 333 U. S. 257; United States v. Kobli, 172 F. 2d 919; Tanksley v. United States, 145 F. 2d 58; Commonwealth v. Blondin, 324 Mass. 564; Hogan v. State, 191 Ark. 437; People v. Swafford, 65 Cal. 223; State v. Johnson, 26 Idaho 609; State v. Beckstead, 96 Utah 528; People v. Hall, 51 App. Div. 57; State v. Holm, 67 Wyo. 360.) IV. The law of New York, as reflected in section 4 of the Judiciary Law and as applied in the present case, does not violate any provision of the Federal Constitution. (Gaines v. Washington, 277 U. S. 81; Adamson v. California, 332 U. S. 46; Palko v. Connecticut, 302 U. S. 319; Snyder v. Massachusetts, 291 U. S. 97; Hebert v. Louisiana, 272 U. S. 312; United States v. Kobli, 172 F. 2d 919; Tanksley v. United States, 145 F. 2d 58; Reagan v. United States, 202 F. 488; Commonwealth v. Blondin, 324 Mass. 564;
      Moore v. State, 151 Ga. 648.) Y. The trial was fair and there is no indication of prejudice to defendant as a result of the exclusion order. (Hogan v. State, 191 Ark. 437; State ex rel. Baker v. Utecht, 221 Minn. 145; State v. Damm, 62 S. D. 123; Grimmett v. State, 22 Tex. App. 36; State v. Holm, 67 Wyo. 360; People v. Sorge, 301 N. Y. 198.)

      George W. Hers and Arthur R. Stelljes for respondent.
    I. The court, in cloaking the trial in secrecy during the People’s case and, on its own motion, throwing its doors wide open during defendant’s case, further prejudiced defendant by giving the prosecutor a great procedural advantage and placed an added and illegal burden on defendant. (Murphy v. People, 2 Cow. 815; Barker v. People, 3 Cow. 686; People v. Hall, 51 App. Div. 57; People v. Murray, 89 Mich. 284; People v. Jaeger, 113 Mich. 228; People v. Miller, 257 N. Y. 54; Tanksley v. United States, 145 F. 2d 58; Leach v. Carlile, 258 U. S. 138; Craig v. Harney, 331 U. S. 367; Matter of United Press Assns. v. Valente, 281 App. Div. 395; Matter of Oliver, 333 U. S. 257; United States v. Kobli, 172 F. 2d 919.) II. The secret talk between the Judge and the jury was, in fact, a part of the trial conducted strictly in camera and to that extent denied defendant a public trial resulting in his conviction and loss of liberty without due process of law. (People v. Bragle, 88 N. Y. 585; Maurer v. People, 43 N. Y. 1; People v. La Barbera, 274 N. Y. 339; Wheaton v. United States, 133 F. 2d 522; Chambers v. United States, 237 F. 513; Sargent v. Roberts, 1 Pick [Mass.] 337; People ex rel. Flaherty v. Neilson, 22 Hun 1; Watertown Bank & Loan Co. v. Mix, 51 N. Y. 558; People v. Linzey, 79 Hun 23; People v. Perkins, 1 Wend. 91.) III. Defendant was denied a public trial. He was in consequence convicted and deprived of his liberty without due process of law in violation of his rights as guaranteed by the Fourteenth Amendment of the Constitution of the United States. (Adamson v. California, 332 U. S. 46; Chambers v. Florida, 309 U. S. 227; People v. Murray, 89 Mich. 284; People v. Yaeger, 113 Mich. 228; Palko v. Connecticut, 302 U. S. 319.) IY. It was error to receive in evidence the testimony and office records of Dr. Marvin Linnick in an attempt to corroborate the testimony of a witness, when such evidence did not, in fact. tend to connect defendant with the crime. (People v. Nitzberg, 287 N. Y. 183; People v. Maione, 284 N. Y. 423; People v. Ice, 265 App. Div. 46; People v. Reddy, 261 N. Y. 479; Shepard v. United States, 290 U. S. 96; People v. Hooghkerk, 96 N. Y. 149.) V. The trial court committed error and hopelessly confused the jury in charging the elements of the crime of conspiracy and reviewing the evidence introduced in support thereof after having withdrawn the conspiracy count from the jury’s consideration. VI. The trial court committed prejudicial error in allowing hostile witnesses to testify to their opinions concerning the meaning of conversations which they had just testified to when said conversations were in the English language and required no technical or scientific interpretation. (People v. Sharpe, 107 N. Y. 427; Ferguson v. Hubbell, 97 N. Y. 507; Mather v. Parsons, 32 Hun 338; Vaughn v. Strong, 66 Hun 273; Braley v. Braley, 16 N. H. 426; Hibbard v. Russell, 16 N. H. 410; Kingsbury v. Moses, 45 N. H. 222; Crowell v. Western Reserve Bank, 3 Ohio St. 406; Morache v. Greenberg, 116 Conn. 549; Newton v. Los Angeles Tr. Lines, 237 P. 2d 682.)
   Fuld, J.

The significant question here posed concerns the power of the trial court to exclude members of the general public, including representatives of the press, from the courtroom during the trial of a criminal prosecution.

The issue arose in the trial of Minot F. Jelke, on widely publicized charges of compulsory prostitution (Penal Law, § 2460) and other offenses of like characfer^Penal Law, § 1148), in the Court of General Sessions of the County of New York. Shortly after the trial got under way, the presiding judge, Honorable Francis L. Valente, made an order, on his own motion and over defendant’s objection, excluding “ the general public and the press * * * from the courtroom for the duration of the People’s case.” Defendant was, however, expressly permitted to have present in the courtroom throughout the trial, any friends or relatives he deems necessary for the protection of his interests ”,

In announcing his ruling, the trial judge commented upon “ the obscene and sordid details ” which the opening statements of the district attorney and defense counsel indicated would be adduced, and he observed that “ the sound administration of justice and * * * the interests of good morals ” demanded that the curtain be drawn on the offensive obscenity of this already over-publicized trial. ’ ’ He further directed that copies of the minutes of the trial were not to be made available, without the court’s permission, to anyone other than the defendant or the district attorney.

The press and the general public, with the exception of friends and relatives of defendant, were thus barred from the courtroom until the close of the People’s case, at which point the courtroom doors were again thrown open to all.

The jury returned a verdict of guilty on two counts of compulsory prostitution, and, upon appeal, the Appellate Division, by a divided court, reversed the resulting judgment of conviction ‘ on the law ’ ’ and ordered a new trial upon the ground that defendant had been deprived of a public trial (284 App. Div. 211). The People have appealed to this court, pursuant to permission granted by one of the justices who dissented in the Appellate Division.

There is also before us an appeal by certain press associations and newspaper publishers who had instituted a separate proceeding in the nature of prohibition in the Supreme Court of New York County, while the Jelke trial was still in its initial stages, to restrain Judge Valente from enforcing and carrying out his ruling, on the theory that it violated their right to have Jelke’s trial open to the public. That application was denied at Special Term, and the Appellate Division affirmed. (Matter of United Press Assns. v. Valente, 281 App. Div. 395.) The issues posited by the appeal in that case, also decided today, are separately considered (308 N. Y. 71).

Of uncertain • origin, but nevertheless firmly rooted in the common law, the right to a public trial has long been regarded as a fundamental privilege of the defendant in a criminal prosecution. (See 1 Bentham, Rationale of Judicial Evidence [1827], Book II, ch. X; 2 Bishop, New Criminal Procedure [2d ed., 1913], p. 767; 3 Blackstone’s Comm. [Lewis ed., 1897], pp. 372-373; 2 Hale, History of the Common Law of England [5th ed., 1794], pp. 141-142; 2 Coke’s Institutes [1797], pp. 103-104; Radin, The Right to a Public Trial, 6 Temple L. Q. 381.) It is a right that is embodied in the Sixth Amendment to the United States Constitution, as respects prosecutions in the federal courts, and is likewise protected by constitution, statute or decision in almost every state in this country. (See Matter of Oliver, 333 U. S. 257, 267-268.)

In New York, the right to a public trial is guaranteed by statute, rather than constitution, but nevertheless remains a basic privilege of the accused. Section 8 of the Code of Criminal Procedure and section 12 of the Civil Rights Law thus declare that in criminal prosecutions the accused is entitled to ‘ ‘ a speedy and public trial ’ ’. And, in broader and more general language, section 4 of the Judiciary Law provides, subject to certain stated exceptions, that “ The sittings of every court within this state shall be public ”.

All three statutory provisions were derived from the revised statutes of 1829. The revisers noted that the guarantee to an accused of “ a speedy and public trial ” was derived from the similarly worded provision of the Sixth Amendment (see Revisers’ Notes to Rev. Stat. of N. Y. [1829], part I, ch. IV, § 14), and that the other provision, now embodied in section 4 of the Judiciary Law, was “ Declaratory of the existing law.” (See Revisers’ Notes to Rev. Stat. of N. Y. [1829], part III, ch. III, 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.)

A variety of purposes has been ascribed to the principle of publicity in judicial proceedings. Foremost is that of affording greater security to the individual in the administration of justice. In contrast to secret inquisitional techniques, which are alien to a free society, publicity serves as a safeguard against unjust persecution of an accused and goes far toward insuring him the fair trial to which he is entitled. (See 1 Bentham, op. cit., pp. 523-524; 1 Cooley, Constitutional Limitations [8th ed., 1927], p. 647.) “ 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.” (See Matter of Oliver, supra, 333 U. S. 257, 270.) Publicity has also been deemed to play an important role in assuring “ testimonial trustworthiness ”, “ by inducing the fear of exposure ” of testimony falsely given (see 6 Wig-more on Evidence [3d ed., 1940], § 1834, p. 332; 1 Bentham, op. cit., pp. 523-524; 3 Blackstone, op. cit., p. 373), as well as in bringing notice of the proceedings to the attention of possible witnesses who may not he known to the parties. (See Tanksley v. United States, 145 F. 2d 58, 59; see, also, 6 Wigmore, op. cit., pp. 332-334.)

The public trial concept has, however, never been viewed as imposing a rigid, inflexible strait] acket on the courts. It has uniformly been held to be subject to the inherent power of the court to preserve order and decorum in the courtroom, to protect the rights of parties and witnesses, and generally to further the administration of justice. (See Bowers, Judicial Discretion of Trial Courts [1931], § 262, pp. 296-297; 6 Wigmore, op. cit., p. 338; 1 Bentham, op. cit., p. 541 et seq.) Accordingly, it is recognized that the court may limit the number of spectators in the interests of health or for sanitary reasons or in order to prevent overcrowding or disorder. (See People v. Miller, 257 N. Y. 54, 60; Crisfield v. Perine, 15 Hun 200, 201, affd. 81 N. Y. 622; Reagan v. United States, 202 F. 488, 489-490; United States v. Kobli, 172 F. 2d 919, 921-922; People v. Hartman, 103 Cal. 242, 245; Myers v. State, 97 Ga. 76, 99; State v. Brooks, 92 Mo. 542, 573; State v. Keeler, 52 Mont. 205, 216-217.) It is also recognized that the court may temporarily exclude spectators, where necessary to enable an immature or emotionally disturbed witness to testify. (See Hogan v. State, 191 Ark. 437; Moore v. State, 151 Ga. 648; State v. Damm, 62 S. D. 123; see, also, State ex rel. Baker v. Utecht, 221 Minn. 145, 149.)

The authority thus residing in the trial court must be acknowledged as an implicit qualification of the general rule of openness of judicial proceedings (see, e.g., United States v. Kobli, supra, 172 F. 2d 919, 922; State v. Keeler, supra, 52 Mont. 205, 216), notwithstanding the wording of the Judiciary Law section. As noted above, the revisers who drafted that provision viewed it merely as Declaratory of the existing law ”, rather than as some radical innovation. Section 4 undoubtedly has the effect of extending the guarantee of public trial to all cases, whether civil or criminal, with the exceptions there set forth. But, beyond that, it presumably does no more than to reaffirm in terms of general application the principle of publicity in judicial proceedings, subject to the qualifications inherent therein. (See People v. Murray, 89 Mich. 276, 286.)

Although it is plain that the exclusion order in the instant case was made, not to preserve order and decorum in the courtroom or to protect the rights of parties or witnesses at the trial, but in asserted deference to general considerations of public decency and morality, the district attorney urges that the action taken by the trial judge was, nevertheless, within the authority granted by section 4 of the Judiciary Law. With that we cannot agree.

That statute, after reciting that the sittings of every court shall be public ”, goes on to provide, “ except that in all proceedings and trials in cases for divorce, seduction, abortion, rape, assault with intent to commit rape, sodomy, bastardy or filiation, the court may, in its discretion, exclude therefrom all persons who are not directly interested therein, excepting jurors, witnesses, and officers of the court.” When adopted in 1879 (L. 1879, ch. 210, amdg. Code Civ. Pro., § 5), the provision did not include cases of sodomy or filiation; they were added in 1945 (L. 1945, ch. 649, § 3, amdg. Judiciary Law, § 4).

The present prosecution for compulsory prostitution is, of course, not one of the cases excepted from the statute’s mandate. That evidence of a sodomous act may have been anticipated, and was actually adduced during cross-examination of one of the People’s witnesses, did not convert that compulsory prostitution case into one for sodomy, and, in any event, could not justify exclusion of the public during other stages of the trial.

The district attorney, however — citing People v. Hall (51 App. Div. 57), which this court has never followed or approved —• contends that, despite its enumeration of specific cases, the Judiciary Law provision reflects a policy of permissible exclusion of the general public in any and all cases, even though not listed, where evidence of an indecent or filthy nature is anticipated, and that the statute should be broadly construed to give effect to that policy. Perhaps strong arguments may be made for the enactment of legislation of that sort, but we find no basis or warrant for adding, by judicial construction, to the enumeration of cases deliberately selected by the legislature for exceptional treatment. The language employed is too plain and unambiguous to permit the courts to engraft additional exceptions thereon. (Cf. Matter of Rathscheck, 300 N. Y. 346, 350, also concurring opinion, p. 352; People ex rel. Knott Corp. v. Graves, 286 N. Y. 377, 381; McCluskey v. Cromwell, 11 N. Y. 593, 601-602.) Moreover, the right of public trial is of such surpassing importance that any statute purporting to limit or qualify that right should be strictly construed in favor of the general principle of publicity.” (Commonwealth v. Blondin, 324 Mass. 564, 571; see Wade v. State, 207 Ala. 1; Stewart v. State, 18 Ala. App. 622, 623; Sallie v. State, 155 Miss. 547, 551; State v. Jordan, 57 Utah 612.)

Indeed, the very fact that section 4 was amended in 1945 to include two additional specific classes of cases — those of sodomy and filiation — affords confirmation that the legislative purpose was to deal with particular cases, rather than generally with every case in which one or more witnesses are expected to testify to obscene, indecent or salacious details. However illogical or incomplete the statutory classification may appear to be, the remedy lies with the legislature; the courts are powerless to rewrite the statute to give effect to their own concepts of public policy.

The Judiciary Law section, accordingly, may not here serve as a predicate for relaxation of the requirements of a public trial. We turn, then, to the district attorney’s further contention that the court had inherent power, separate and apart from statute, to exclude the general public and the press in a case of this kind in the interests of public decency. The argument is also made that the trial could in no event be deemed nonpublic, since it was open to defendant’s friends and relatives.

The demands of public morality do not, however, justify judicial nullification of the right of public trial, even in cases of an obscene or indecent nature, and restriction of attendance to a limited class of persons — such as defendant’s friends and relatives— does not satisfy the legislative mandate. (See United States v. Kobli, supra, 172 F. 2d 919; Tanksley v. United States, supra, 145 F. 2d 58; People v. Yeager, 113 Mich. 228; State v. Keeler, supra, 52 Mont. 205; Rhoades v. State, 102 Neb. 750; State v. Osborne, 54 Ore. 289; Neal v. State, 86 Okla. Cr. 283.) There are, it is true, decisions in several states which have sustained the inherent power of the court to exclude the general public from trials involving sexual offenses, provided friends or relatives of the defendant’s choosing are permitted to remain in the courtroom. (See, e.g., State v. Johnson, 26 Idaho 609; State v. Croak, 167 La. 92; State v. Nyhus, 19 N. D. 326; cf. Robertson v. State, 64 Fla. 437.) Those cases, however, reflect an unduly narrow view, to which we cannot subscribe, of the purposes and scope of a public trial.

The principle of publicity must at times yield, as noted above, independently of statutory qualification, to the contending considerations of sound judicial administration. The exclusion of particular spectators or classes of spectators may then be justified, without impairing the essential nature of the trial, which remains otherwise open to the public at large. There is, however, a vast difference between a trial of that kind, to which everyone is admitted except a designated few, and one, as in the case before us, from which everyone is excluded but a limited class.

"While the trial judge might have been warranted in barring minors from the trial (see People v. Murray, supra, 89 Mich. 276, 291; State v. Keeler, supra, 52 Mont. 205, 217; State v. Nyhus, supra, 19 N. D. 326, 330-331; State v. Hensley, 75 Ohio St. 255, 265), his order was not so confined, and the considerations affecting the immature and impressionable minor are not necessarily applicable to spectators more mature and experienced. (See United States v. Kobli, supra, 172 F. 2d 919, 923; see, also, 1 Bentham, op. cit., pp. 564-565; 1 Cooley, op. cit., p. 647.) And, whatever our view with regard to the attendance of the prurient-minded or the sensation-seeker at trials such as this (see 1 Cooley, op. cit., p. 647; 6 Wigmore, op. cit., p. 338; and compare People v. Hall, supra, 51 App. Div. 57, 63, with United States v. Kobli, supra, 172 F. 2d 919, 923-924), it would certainly not justify a court order generally and indiscriminately barring the public at large.

The statutory requirement of a public trial is not satisfied simply by allowing relatives and friends of defendant’s choosing to be present. A trial open only to such a limited class of pérsons may not be regarded as public, particularly if no representative of the press is permitted to attend. (See Note, 49 Col. L. Rev. 110,116-117.) A defendant may not have any relatives or friends available or willing to attend the trial, and, even if he has, such a handful is not by any means sufficiently representative of the public to provide the protection to an accused and the contemporaneous review in the forum of public opinion ” that a public trial is designed to assure and afford. (Matter of Oliver, supra, 333 U. S. 257, 270.)

Due regard for defendant’s right to a public trial demanded, at the very least — certainly, lacking valid legislative sanction —that he be not deprived of the possible benefits of attendance by the press. (See Keddington v. State, 19 Ariz. 457, 459; see, also, Radin, op. cit., pp. 391, 394; Note, 35 Mich. L. Rev. 474, 479.) Its widespread reporting of what goes on in the courts may well prove a potent force in restraining " possible abuse of judicial power.” (Matter of Oliver, supra, 333 U. S. 257, 270.) That being so, justification for excluding the press in this case may not be found in the sensational and vulgar coverage which the proceedings may have been receiving in some newspapers and which evidently disturbed the trial judge. Deplore as we may the bad taste of reporting of that kind, the courts may not take unto themselves the power to enforce their notions of public decency and morality at the sacrifice of basic rights guaranteed to the defendant by statute. The task of balancing the several competing interests and considerations must in this instance be left to the legislature, fully competent as it is to qualify or limit the rights granted by it, so long as the requirements of due process are not offended. (See Commonwealth v. Blondin, supra, 324 Mass. 564, 570-572.)

In sum, then, although the trial judge was unquestionably actuated by the highest of motives, the conclusion is inescapable that his order excluding the public was not sanctioned by legislation, or otherwise authorized, and'deprived defendant of a substantial right. Accordingly, as the Appellate Division held, defendant was entitled to a new trial without an affirmative showing of prejudice. (See United States v. Kobli, supra, 172 F. 2d 919; Tanksley v. United States, supra, 145 F. 2d 58; Davis v. United States, 247 F. 394.) To the plaint that such a ruling will result in reversal of a conviction of one clearly proved guilty, it is sufficient to say that decision herein far transcends the issue of Jelke’s guilt or the disposition of this particular case. As one court has expressed it (People v. Murray, supra, 89 Mich. 276, 286), “It is for the protection of all persons accused of crime — the innocently accused, that they may not become the victim of an unjust prosecution, as well as the guilty, that they maybe awarded a fair trial — that one rule [as to public trials] must be observed and applied to all.”

Concerned as we here are only with cases not encompassed by the special provisions of section 4 of the Judiciary Law, we need not now consider the scope or extent of the rights of a defendant standing trial in one of the cases listed in that statute. (Cf., e.g., Commonwealth v. Blondin, supra, 324 Mass. 564, 571.) Nor is it necessary, in the view which we have taken of the public trial issue, to pass upon the other questions raised by defendant.

The order of the Appellate Division should be affirmed.

Desmond, J.

(dissenting). Till this case arose, it was never doubted, so far as I know, that a trial judge in New York may exclude the general public from “ sex trials ”. As Wigmore has written (6 Wigmore on Evidence [3d ed.], p. 338), it cannot be doubted that it is within the judicial power to exclude mere spectators because of the “ moral harm of satisfying pruriency in trials of certain crimes ”. In refusing to agree to a drastic change in that salutary and traditional rule, I can add little to the eloquent and earnest protest of the Appellate Division minority in this case, or to the clear and compelling statement of the law in People v. Hall (51 App. Div. 57 [1900]). The Hall case, and the predecessor of section 4 of the Judiciary Law, which it applies, are the whole of the New York law on this subject, they express an old and high tradition of judicial concern for public morality, and I see no ground or reason for refusing to follow them. The importance of the Hall case and of its cited authorities (Cooley on Constitutional Limitations [6th ed., published in 1890], p. 379, and Abbott’s Trial Brief, Criminal Causes [1st ed., published in 1889], § 157) is that they confirm, as of sixty-five years ago, what judges and lawyers have always taken for granted. Cooley wrote that “ the requirement [of a public trial] is fairly observed if, without partiality or favoritism, a reasonable proportion of the public is suffered to attend, notwithstanding that those persons whose presence could be of no service to the accused, and who would only be drawn thither by a prurient curiosity, are excluded altogether”. Abbott put it this way: “ The exclusion by the court of all persons other than those interested in the case, where, from the character of the charge and nature of the evidence, public morality would be injuriously affected, does not violate the right to a public trial ”. So the Trial Judge here ordered that, while the People’s case was being presented, the general public and the press should be excluded, with permission “ to have present in the courtroom throughout the trial, any friends or relatives he deems necessary for the protection of his interests ”. Yet, this court (to the surprise of the Bench and Bar, I am sure) is now holding that the trial court, in following the settled precedents and the old, good customs, was dépriving this defendant of his fundamental right to a “ public trial ”. Thus it now becomes the law of New York that, in a case where filthy sexual episodes are to be described, it is the defendant alone, not the court, who has power to decide whether the prurient are to have free entrance to the show. This, I say, is in direct opposition not only to the Hall case (supra) and to the established practices of our courts in aid of public decency, but to the legislative exception (in Judiciary Law, § 4) from the “public trial” mandate, of “ cases for divorce, seduction, abortion, rape, assault with intent to commit rape, sodomy, bastardy or filiation ”. From the “ proceedings and trials ” in all such cases, says that statute, “ the court may, in its discretion, exclude * * * all persons who are not directly interested therein, excepting jurors, witnesses, and officers of the court ”. We, nevertheless, are here holding that the Presiding Judge in this case committed error of law in barring all spectators except “ friends or relatives he deems necessary for the protection of his interests ”. What has become of the judicial discretion, legislatively declared in 1879 (L. 1879, ch. 210), in section 4? And what becomes of People v. Hall (supra), recognized everywhere as the law of New York (see Matter of Oliver, 333 U. S. 257, 272) ?

Nor am I able to understand the reasons or the reasoning which prompt this court to change the old rule. The majority opinion concedes that the public trial requirement is “ subject to the inherent power of the trial court to preserve order and decorum in the courtroom, to protect the rights of parties and witnesses, and generally to further the administration of justice ” (p. 63). Not only does the majority opinion concede to the trial bench that inherent and essential power, but it cites a number of situations which call for its exercise, such as insanitary conditions, overcrowding, disorder, or even the emotional disturbance of a witness. But, admitting that spectators may be dismissed because the courtroom air is physically polluted, we hold that moral pollution can never be prevented by the judge. We accept lesser reasons and reject the greater one. We say that the defendant may insist that the trial be open to every gaping sight-seer, but that a judge may not act in the interest of public morals by barring him out. And, strangest of all, we approve various implicit qualifications of the “ public trial ” rule, but refuse to accept as a reason for exclusion the only ground therefor which is expressly prescribed by a statute. We allow exclusions when there is no warrant therefor except general ideas of convenience and order, and forbid exclusions, on the ground of lack of statutory authority, in the very case where the legislation has authorized exclusion. And we do all this in a case where there is not even an effort to show that this defendant was prejudiced by the court’s refusal to admit spectators.

The judgment should be reversed, but, because the Appellate Division order was made “ on the law” the case should be remitted to the Appellate Division for its determination on questions of fact and discretion (Code Crim. Pro., § 543-a).

Lewis, Ch. J., Dye and Fboessel, JJ., concur with Fuld, J.; Desmond, J., dissents in an opinion in which Conway, J., concurs ; Van Voobhis, J., taking no part.

Order affirmed.

      . The section continues, “and every citizen may freely attend the same, except that ” in certain specified eases “ the court may * * * exclude therefrom” all persons “not directly interested therein".

      . Exclusion of the general public has also been sustained, when necessary to preserve the secrecy of trade secrets involved in a particular litigation. (See, e.g., National Starch Products v. Polymer Industries, 273 App. Div. 732, 739.)