author: Thacher, J.

text:
    In the Matter of J. Ebb Weir et al., Appellants; J. Benedict Roache, Jr., Respondent.
    Argued October 4, 1943;
    decided December 2, 1943.

      Gordon M. Lipetz for appellants.
    The Appellate Division properly directed the cancelation and discharge of the judgment under the mandatory provisions of section 150 of the Debtor and Creditor Law. (Walker v. Muir, 194 N. Y. 420; Rukeyser v. Tostevin, 188 App. Div. 629; Neish v. Doyle, 143 Misc. 694; Matter of Thrall, 139 Misc. 200; Bronx County Trust Co. v. Cassin, 170 Misc. 962; Guay v. Wilde-Winkworth Oil

      Corp., 174 Misc. 580; Matter of Herrman, 102 F. 753.) When the judgment was canceled and discharged, all rights and remedies of the judgment creditor flowing from it and designed to enforce it were extinguished. (Ocean Nat. Bank of N. Y. v. Olcott, 46 N. Y. 12; West Philadelphia Bank v. Gerry, 106 N. Y. 467; Clark v. Rowling, 3 N. Y. 216; Monroe v. Upton, 50 N. Y. 593; Cohen v. Pinkus, 126 App. Div. 792; Leo v. Joseph, 56 Hun, 644; Nossek v. Todd & Son, 160 Misc. 528.) The lien acquired by the judgment creditor under the garnishee order and garnishee execution was extinguished in the bankruptcy proceeding. (Bankruptcy Act, § 67, U. S. Code, tit. 11.) The rule that a discharge in bankruptcy does not affect the right of a trustee in bankruptcy to garnishee the judgment debtors’ income from a testamentary trust does not apply to a judgment creditor. (Clark v. Rowling, 3 N. Y. 216; Monroe v. Upton, 50 N. Y. 593; Dusenbury v. Hoyt, 53 N. Y. 521; Ocean Nat. Bank of N. Y. v. Olcott, 46 N. Y. 12; West Philadelphia Bank v. Gerry, 106 N. Y. 467; Guay v. Wilde-Winkworth Oil Corp., 174 Misc. 580; Matter of Towne, 253 App. Div. 795, 278 N. Y. 597; Sarver v. Towne, 285 N. Y. 264.)

      J. Courtney McGroarty for respondent.
    The lien obtained under section 684 of the Civil Practice Act against the interest of the appellant, J. Ebb Weir, Jr., in the trust, survived the filing of the petition in, and the adjudication of, bankruptcy. (Matter of Havemeyer, 127 Misc. 197; Jenks v. Title Guar. & Trust Co., 170 App. Div. 830; Eaton v. Boston Trust Co., 240 U. S. 427; Zavelo v. Reeves, 227 U. S. 625; Rice v. Chapman, 234 App. Div. 279; Dusenbury v. Hoyt, 53 N. Y. 521; Herrington v. Davitt, 220 N. Y. 162; Eric v. Gumpert, 136 Misc. 892; McDonald v. Taylor & Co., 144 App. Div. 329; Wyckoff v. Williams, 136 App. Div. 495; Louisville Joint Stock Land Bank v. Radford, 295 U. S. 555; Long v. Bullard, 117 U. S. 617; Brearley School, Ltd., v. Ward, 201 N. Y. 358.) The lien thus acquired is in no way affected by the subsequent discharge of the bankrupt. (Matter of Irving Trust Co., 267 N. Y. 102; Butler v. Baudouine, 84 App. Div. 215, 177 N. Y. 530; McNaboe v. Marks, 51 Misc. 207; Jenks v. Title Guar. & Trust Co., 170 App. Div. 830; Matter of Poskanzer, 101 Misc. 100, 181 App. Div. 915; Zuhlke v. Prudential Life Ins. Co., 244 App. Div. 549.)
   Thacher, J.

On February 16, 1933, a judgment was entered against the appellants. On June 18, 1938, the assignee of this judgment procured an order under section 684 of the Civil Practice Act permitting the levy of execution upon income from a trust fund of which the appellant J. Ebb Weir was the beneficiary. Execution issued June 28, 1938. Following this, each of the appellants filed a voluntary petition in bankruptcy on September 2, 1938, arid each listed the above judgment -in the schedules as a debt. On January 18, 1939, an order was entered by the referee in bankruptcy by which the respondent and his attorneys were enjoined from taking any further proceedings to collect the aforesaid judgment, except in bankruptcy, until the granting or denial of discharge. That order also enjoined the trustee of the trust from paying over to the sheriff any portion of the income of the trust. By a modifying order the trustee was restrained from paying any income which accrued subsequent to adjudication.

Each of the bankrupts was discharged in bankruptcy on January 22, 1941, and thereafter moved in this proceeding for an order under the Debtor and Creditor Law, section 150, for the discharge of the judgment and of the execution against the income of the trust, and for an order directing the trustee to pay to J. Ebb Weir the moneys which it held under said execution. At Special Term this motion was denied and on appeal to the Appellate Division the order was modified by directing the discharge of record of the judgment, providing, however, that such' discharge should not affect the lien of the execution against the trust income.

Pursuant to the stay orders of the bankruptcy court there has been accumulated in the hands of the trustee of the trust the sum of approximately $1,200, all prior to the date of discharge. These stays were not effective after that date, but on that date the respondent’s judgment was discharged in bankruptcy and the bankrupt became entitled to an order under section 150 of the Debtor and Creditor Law completely discharging of record the execution as well as the judgment. This, however, did not entitle the discharged bankrupt to receive payment of the fund from the trustee which was accumulated prior to his discharge. This fund is an asset of the bankrupt estate, still subject to administration there, notwithstanding the fact that the former trustee in bankruptcy has been discharged and that the estate presumably has been closed. (Stephan v. Merchants Collateral Corp., 256 N. Y. 418; see, also, Matter of Irving Trust Co., 267 N. Y. 102, cert, denied 296 U. S. 539.)

The order appealed from should be modified by directing the cancellation and discharge of record of the judgment entered February 16, 1933, and the cancellation of every right, lien or levy upon the income from the trust due or to become due to appellant J. Ebb Weir acquired by respondent by virtue of the garnishee order and execution, subject, however, to the orders heretofore issued in bankruptcy by the United States District Court for the Eastern District of New York.

The order should be modified in accordance with this opinion, and as so modified affirmed, without costs.

Lehman, Ch. J., Loitghran, Rippey, Lewis, Conway and Desmond, JJ., concur.

; Ordered accordingly.


source: Caselaw Access Project

author: Rippey, J. Desmond, J.

license: Public Domain

text:
    Marion S. Mink et al., Appellants, v. Henry Keim et al., Respondents, et al., Defendants.
    Submitted October 6, 1943;
    decided December 2, 1943.

      Julius Beinlieb and Nathan A. Markowitz for appellants.
    The inquest taken by respondents in the Sullivan County Supreme Court and the dismissal of the present plaintiffs complaint are not on the merits. (Civ. Prac. Act, § 482; Voorhis v. Denis, 227 N. Y. S. 607; Goebel v. Iffla, 111 N. Y. 170.) Section 494-a of the Civil Practice Act does not authorize a judgment on the merits. (Jones v. Gould, 145 App. Div. 271; Caruso v. Metro

      politan 5 to 50 Gent Store, 214 App. Div. 328; Rudd v. Cornell, 171 N. Y. 114; Lodewick v. Cutting, 121 Misc. 348; Hull v. Shannon, 139 Misc. 564.) The consolidation did not constitute a merger of the various causes of action into one single cause'of action. (Civ. Prac. Act, § 482; Harris v. Harris, 283 N. Y. S. 410; Ten Eyck v. Lombard, 296 N. Y. S. 49; Bach v. Hollander & Sons, Inc., N. Y. L. J., July 10, 1942; Goodman v. Kirshberg, 261 App. Div. 257; Neenan v. Woodside Astoria Transp. Co., 261 N. Y. 159; Larme Estates, Inc., v. Omnichrome Corp., 275 N. Y. 426, 276 N. Y. 573; 2018 Seventh Ave., Inc., v. Nach-Haus Leasing Corp., 289 N. Y. 490.)

      Arthur K. Wing and James G. Purdy for respondents.
    The defense pleaded in the answer of respondents of final adjudication on the merits, in favor of said defendants and against the plaintiffs of prior actions between the same parties arising out of the same transaction and to recover for the. same causes of action as alleged in the action at bar, is duly established by the allegations and admissions in the pleadings, and is a complete defense in law to this action. The Appellate Division properly reversed the order of the Special Term and granted the motion for judgment on the pleadings dismissing the complaint. (Hull v. Shannon, 139 Misc. 564; Matter of Arcadu v. Levinson, 250 N. Y. 355; Van Arsdale v. King, 155 N. Y. 325; Harris v. Harris, 246 App. Div. 667.)
   Rippey, J.

On J une 30, 1938, a collision occurred on Highway No. 52 near Jeffersonville, Sullivan County, between an automobile owned and operated by defendants Keim and an automobile owned and operated by defendant Orel. Plaintiffs Marion Sanders Mink, Helen Lefkowitz and Abraham Altschuler were passengers in the car operated by. Orel. Plaintiff Herman Mink is the husband of Marion Sanders Mink.

Keim and his wife brought an action in the Supreme Court of Sullivan County against Orel to recover damages for injury to their car in which Mrs. Keim set up a cause of action for personal injuries and Keim for. loss of her services, referred to as Action No. 1. In Action No. 2, Orel sued Keim and his wife in Kings County to recover property damage and for personal injuries. In Action No. 3, Helen Lefkowitz sued Keim and his wife and Orel in Bronx County to recover damages for personal injuries. In Action No. 4, Mink and his wife sued Keim and Orel in New York County for loss of services and for personal injuries, respectively, and in Action No. 5, brought in Bronx County, Abraham Altschuler sued Orel and Keim for personal injuries. The actions were consolidated and moved for trial as separate actions in Sullivan County. None of the parties appeared at the trial except Keim and his wife who offered proof of damages in the causes of action set up in Action No. 1, Action No. 2 was withdrawn, and the court assessed damages in their favor against Orel. The Keims thereupon moved to dismiss the complaints upon the merits as against plaintiffs in Actions Nos. 3, 4 and 5, which motion was granted. A single judgment was then docketed in which the court, treating the various actions separately as numbered above, awarded damages to Keim and his wife against Orel in Action No. 1 and dismissed the complaints in Actions Nos. 3, 4 and 5 “ upon the merits. ’ ’

This action was subsequently commenced in New York County by the passengers in the Orel car and the husband of one of them to recover damages arising as the result of the collision. As separate affirmative defenses, Keim and his wife alleged (1) that the injuries and damages alleged to have been sustained By the plaintiffs were caused wholly and solely through the negligence and carelessness of Orel and (2) that the judgment theretofore entered in Actions Nos. 3, 4 and 5 above constituted a conclusive adjudication upon the merits. Keim and his wife moved at Special Term to dismiss the present complaint, which motion was denied, but, upon appeal, the Appellate Division held that the judgment in the former action was a bar to the maintenance of the present suit.

The plaintiffs here were plaintiffs in the former actions and were so considered and designated in the judgment by the trial court. They could not be transformed into something else by a consolidation of the actions. There was no merging of the several causes of action or distribution of the parties according to their respective claims into one consolidated action and no attempt was made to change their character as claimants in the consolidated actions. After the alleged consolidation they continued to be plaintiffs at the time the cases were moved for trial. They were moved for trial as separate cases. There could be no judgments entered against plaintiffs “ on the merits ” since such a judgment can only come at the close of the plaintiff’s evidence (Civ. Prac. Act, § 482). When the cases were moved for trial by defendants Keim, the plaintiffs offered no proof; they did not appear at the trial and their complaints were dismissed on motion of defendants Keim because of their failure to appear or put in any evidence at all. The effect of the judgment was nothing more than a nonsuit (Honsinger v. Union Carriage & Gear Co., 175 N. Y. 229, 232). Thus the recital in the judgment that the dismissal of the complaints were on the merits lends no aid to defendants ’ claim here that the judgment either as a technical estoppel or as evidence conclusive per se bars the maintenance of the present action (Clark v. Scovill, 198 N. Y. 279; People v. Ladew, 237 N. Y. 413, 419; Brick v. Cohn-Hall-Marx Co., 283 N. Y. 99, 104).

There was no privity between the passengers of the Orel car and the owners and operator of either car involved in the collision, nor was there mutuality of estoppel. Actionable negligence can arise only out of the breach of some duty and is necessarily relevant to circumstances of time, place or person (Connell v. N. Y. C. & H. R. R. R. Co., 144 App. Div. 664). “ The duty may exist as to some persons, and not as to others, depending upon peculiar relations and circumstances ” (Larmore v. Crown Point Iron Co., 101 N. Y. 391, 394). The only question litigated in the consolidated action was whether the negligence of the Keims or Orel, as between themselves, was the sole proximate cause of the collision. As to the plaintiffs, both Orel and the Keims might be held jointly liable for damages although, as between themselves, the owner and driver of one car might not be liable to the other. Both owed to these plaintiffs the duty of exercising ordinary care to avoid the accident. The claims of the plaintiffs here were not involved in the issue presented and litigated in the former action; and the two actions did not ‘ ‘ have such a measure of identity that a different judgment in the second would destroy or impair rights or interests established by the first ” (Schuylkill Fuel Corp. v. Nieberg Realty Corp., 250 N. Y. 304; Neenan v. Woodside Astoria Transportation Co., 261 N. Y. 159; Marine Transit Corp. v. Switzerland General Ins. Co., 263 N. Y. 139; Elder v. New York & Pennsylvania Motor Express, Inc., 284 N. Y. 350).

The judgment of the Appellate Division should be reversed and the order of Special Term affirmed with costs in this court and in the Appellate Division.

Desmond, J.

(dissenting). The question tendered to us on this appeal is essentially one of Supreme Court practice, since at bottom it involves the efficacy of attempts made by plaintiffs to escape the effect of an outstanding Supreme Court order of consolidation.

The four plaintiffs above named brought, in 1939, three separate personal injury actions (Marion Mink and Herman Mink, her husband, suing together) against the owners and drivers of two automobiles which had been in collision and in one of which automobiles three of the plaintiffs here (Marion Mink, Helen Lefkowitz and Abraham Altschuler) had been passengers. Two of those actions were brought in Bronx County and one in New York County. Those three actions were duly consolidated, by order of the Supreme Court, with two other actions, one brought in Sullivan County, the other in Kings County, in each of which other two actions the driver of one of the cars had sued the driver of the other car. That order of consolidation, making one gliit (with venue laid in Sullivan County) out of those erstwhile separate actions, was never reversed and still stands. When the consolidated action came on for trial, however, the above-named plaintiffs Mink, Lefkowitz and Altschuler attempted to remove themselves and their claims from the consolidated cause by refusing to take any part in that trial. Everything indicates that their failure to appear was deliberate, not inadvertent. They did not ask for, or get, the court’s permission to withdraw their complaints. No counsel appeared for them and no proof was offered for them. No other parties appeared at that trial of the consolidated cause except Mr. and Mrs. Keim, owner and occupants of one of the colliding cars, who made proof at that trial of their respective causes of action for property damage, personal injuries, loss of services, et cetera. The court awarded damages to Mr. and Mrs. Keim and entered a judgment in their favor for those damages against Orel, owner of the other car, which judgment, entitled in the consolidated action, also dismissed ‘1 on the merits ’ ’ the causes of action in favor of the same four persons who are the plaintiffs in the present action. (Though we do not consider it a principal ground for affirmance here, it is of some importance that the determination in favor of the Keims, after proof taken, was necessarily based on holdings that the driver of the Orel car was negligent and that the driver of the Keim car was free from negligence.) Later Mr. and Mrs. Mink and Lefkowitz and Altschuler moved to have the words “ on the merits ” stricken from that judgment. That effort did not succeed (see Keim v. Orel, 263 App. Div. 779) so that there still stands of record and of full force against them a judgment of dismissal intended to be and stated to be on the merits. Despite the continuing vitality of that judgment the four plaintiffs above named now insist on their right to bring a new action, this time in New York County, against the same defendants on the same theory and for the same relief demanded in their prior actions. On motion of defendants Keim, the Appellate Division has ordered this new action dismissed, holding (as did both lower courts on the previous motion in the consolidation cause to excise the words “ on the merits ” from the judgment) that under all the circumstances, the judgment in the consolidated action was, in effect as in terms, a judgment on the merits. We think that determination was not erroneous.

It is true that in most cases of dismissal of a complaint before the close of a plaintiff’s proof, the judgment of dismissal may not properly be labeled on the merits ” and. does not operate to prevent the bringing of another action even when that label is deliberately attached to the judgment by the court which renders it. (Clark v. Scovill, 198 N. Y. 279.) Ordinarily the rule is that a dismissal because of plaintiff’s failure to attend at the trial or to make proof thereat is not a sufficient basis for a judgment of dismissal on the merits. (Honsinger v. Union Carriage & Gear Co., 175 N. Y. 229.) The 1920 amendment to what is now section 482 of the Civil Practice Act was not, it seems, intended to change that rule. But the cases recognize that in addition to voluntary non-suits (on terms and with the court’s permission) and inadvertent failures to answer the calendar, et cetera, there is also such a thing as a deliberate, intentional abandonment of one’s cause of action, evidenced by a willful refusal to go on with the case when it is called for trial. (See discussion in Sweeting v. Staten Island & Midland Ry Co., 176 App. Div. 494, and People ex rel. Rogall v. Jacoby, 264 N. Y. 485.) Section 482 of the Civil Practice Act does not require that such a dismissal be without prejudice to a new action. The Appellate Division has held in the present suit that refusal of these plaintiffs to go on with their proof in the -consolidated cause was no less than a willful abandonment of their claims. (See Civ. Prac. Act, § 494-a.) We think that description of their maneuvers was justified, if indeed any other interpretation is possible. When their causes of action were consolidated with others by an order which still stands, plaintiffs could not deprive that consolidation order of all effect by standing silent at the trial or by remaining away from it and permitting a dismissal on the merits, and then commence, without anyone’s leave, a new action for the same relief. Such an unscrambling of the eggs is not among the privileges of any litigant. Causes of action, consolidated with other actions for all purposes by a valid order, cannot be thus “ unconsolidated.” A consolidated action is one action for all purposes (Blake v. Michigan S. & N. I. R. R. Co., 17 How. Pr. 228) and unless there be a severance only one judgment can be entered therein. (Kriser v. Rodgers, 195 App. Div. 394.)

The Appellate Divisions of both the First Department (in the present case), and the Third Department (in the consolidated cause, Keim v. Orel, 263 App. Div. 779) have passed on the effect of the attempted withdrawal of these parties from the consolidated cause. Both those courts, deciding what is essentially a question of Supreme Court practice, have ruled that a plaintiff may not thus lift his cause of action out of a consolidated cause and. keep it intact for future harassment of a defendant. We should not say that both those courts were wrong as matter of law in their proper endeavors to give teeth to the order of consolidation and judgment of dismissal.

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

Lehman, Ch. J., Lewis, Conway and Thacher, JJ., concur with Bippey, J.; Desmond, J., dissents in opinion in which Lottghran, J., concurs.

Judgment accordingly.


text:
    Vilmar Loetsch, as Executrix of Rose Yankovich, Deceased, et al., Respondents, v. New York City Omnibus Corporation et al., Appellants.
    Argued October 19, 1943;
    decided December 2, 1943.

      Joseph Cole and Henry J. Smith for appellants. The trial court erred in excluding from evidence the will of decedent offered by defendants.

      (Layer v. City of Buffalo, 274 N. Y. 135; Galbraith v. Busch, 267 N. Y. 230; Houghkirk v. President, 92 N. Y. 219; Wilkinson v. Boehm, 231 App. Div. 295; Arnold v. State, 163 App. Div. 253; Orendorf v. N. Y. C. R. R. Co., 119 App. Div 638; Welling v. Cincinnati Traction, 12 Ohio App. 136; Kwiatkowski v. Lowry, Inc., 276 N. Y. 126.)

      Frank Aranow and Benjamin H. Siff for respondents.
    An action for wrongful death is for the recovery of pecuniary loss. Neither affection nor its absence is material to the issue. The will, therefore, was properly excluded. (Abel v. Northampton Traction Co., 212 Penn. St., 329; Dunbar v. Charleston & W. C. Ry. Co., 186 F. 175; Boos v. Minneapolis, St. Paul & Sault Ste. Marie Ry. Co., 127 Minn. 381; Belzoni Hardwood Lumber Co. v. Langford, 89 So. 919; Closson v. Griffith, 245 N. Y. 552.)
   Thacher, J.

Appeal by defendant from the non-unanimous judgment of the Appellate Division affirming a judgment of the Supreme Court, New York County, in favor of plaintiff in a wrongful death action.

Upon the trial of this action counsel for defendants-appellants offered in evidence the will of the decedent dated December 2, 1940, for the purpose of proving the statement of the decedent with respect to her relations with her husband. The statement was as follows: 1 ‘ Whereas I have been a faithful, dutiful, and loving wife to my husband, Dean Yankovich, and whereas he reciprocated my tender affections for him with acts of cruelty and indifference, and whereas he has failed to support and maintain me in that station of life which would have been possible and proper for him, 1 hereby limit my bequest to him to one dollar. ’ ’

On plaintiffs’ objection the will was excluded from evidence, and the exception taken presents the only question for our consideration. The will, executed within four months prior to decedent’s death, was relevant to an understanding of the relations which existed between the decedent and her husband. It is always proper to make proof of the relations of the decedent to the person for whose benefit the action is maintained, because such proof has a bearing upon the pecuniary loss suffered by the person entitled to the recovery, and this is true whether the beneficiary is the surviving husband or wife or one or more of the next of kin. (Murphy v. Erie R. R. Co., 202 N. Y. 242, 245; Houghkirk v. President, etc., D. & H. Canal Co., 92 N. Y. 219; Sternfels v. Metropolitan Street Ry. Co., 73 App. Div. 494, affd. 174 N. Y. 512; Farley v. N. Y., N. H. & H. R. R. Co., 87 Conn., 328, 336.)

The measure of loss is to be determined solely from the standpoint of the surviving spouse and is strictly limited to compensation for pecuniary loss. (Decedent Estate Law, § 132.) Accordingly, the amount recoverable in any particular case must be very largely influenced by the nature of the relationship between the beneficiary and the deceased. When the deceased is one who was under no legal obligation to provide support for the beneficiary during life, Ms or her disposition voluntarily to do so is of essential importance to the jury in determining pecuniary loss. Evidence showing such a disposition or the lack of it should not be excluded.

Question remains as to the character of the proof offered, which was a declaration in writing of the decedent made within four months of her death. Such declarations are evidence of the decedent’s state of mind and are probative of a disposition on the part of the declarant which has a very vital bearing upon the reasonable expectancy, or lack of it, of future assistance or support if life continues. This expectancy, disappointed by death, is the basis of recovery (Michigan Central R. R. Co. v. Vreeland, 227 U. S. 59, 70) and is the measure of pecuniary loss for which the jury must award fair and just compensation. No testimonial effect need be given to the declaration, but the fact that such a declaration was made by the decedent, whether true or false, is compelling evidence of her feelings toward, and relations to, her husband. As such it is not excluded under the hearsay rule but is admissible as a verbal act.

Objections have been made, and are made here, that the admission of such evidence violates the statutory rule of damages which excludes those losses which result from the deprivation of the society and companionship of the decedent by emphasizing the nature of the marital relationship in the particular case. But such declarations may not be received for that purpose but only as bearing upon the reasonable expectancy of pecuniary advantage disappointed by death, or the lack of such expectancy. Under a proper charge from the court there should be no confusion as to the effect to be given to the evidence or the nature of the injuries to be compensated.

The question arose in Quinn v. Power (29 Hun, 183, Genl. Term, 3d Dept. 1883) where letters written by the decedent to his father, which tended to show the son’s affection for his father and relatives and his good intentions in their behalf, were held inadmissible. This case was overruled, although not expressly, in Anderson v. Pierson (240 App. Div. 746, 3d Dept.) as appears from the record and from the fact that the dissent in the Anderson case was. based upon the ruling in the Quinn case.

In Peterson v. Pete-Erickson Co. (186 Minn. 583) an action was brought by a husband to recover" damages for the wrongful death of his wife. A friend of the deceased wife was called as a witness and gave testimony, over objection and exception, to a conversation wherein the wife referred complainingly to her husband’s drinking, indicating that she was considering a possible divorce. It was held that declarations of the deceased wife to third parties tending to show the character of the relation between husband and wife were competent, were not objectionable as hearsay, and were admissible as part of the res gestae. This decision in Minnesota in effect, though not expressly, overruled the prior decision in Boos v. Minneapolis, St. Paul & Sault Ste. Marie Ry. Co. (127 Minn. 381). Similar declarations of the deceased wife were held admissible in Welling v. Cincinnati Traction Co. (12 Ohio App. 136).

Belzoni Hardwood Lumber Co. v. Langford (127 Miss. 234) is cited contra, but there the statute allowed recovery only of damages to the decedent, and the relations between the decedent and his wife were consequently entirely irrelevant. (Compare Central of Georgia Ry. Co. v. Bond, 111 Ga. 13, and the rule of damages in Connecticut, Farley v. N. Y., N. H. & H. R. R. Co., 87 Conn. 328, 337.)

The judgments should be reversed and a new trial granted, with costs to the appellant to abide the event.

Lottghban, Lewis and Conway, JJ., concur; Lehman, Ch. J., Rippey and Desmond, JJ., dissent.

Judgments reversed, etc.


author: Lehman, Ch. J.

text:
    The People of the State of New York ex rel. Charles Morriale, Appellant, against Vernon C. Branham, as Superintendent of Woodbourne Institution for Defective Delinquents, Respondent.
    Submitted October 14, 1943;
    decided December 2, 1943.

      Caesar B. F. Barra and Ralph J. Barra for appellant.
    Section 440 of the Correction Law is unconstitutional in that it operates to deprive a person of his liberty without due process of law. (People ex rel. Romano v. Thayer, 229 App. Div. 687; People ex rel. Barone v. Fox, 202 N. Y. 616; People v. Henriques & Co., 267 N. Y. 398; Stuart v. Palmer, 74 N. Y. 183; Twining v. New Jersey, 211 U. S. 78; People v. Dean, 94 Misc. 502; People ex rel. Berger v. Warden of Workhouse, 176 App. Div. 602; Matter of Naylor, 284 N. Y. 188; People ex rel. Greenwell v. McNeill, 262 App. Div. 912; Matter of Lyons v. Goldstein, 290 N. Y. 19.) The application herein was made without knowedge of the prisoner. No notice was given to him; nor was he produced in court or given an opportunity to defend himself. Without this necessary procedure the court acquired no jurisdiction over the prisoner and the order entered in the proceeding is void. (People v. Dean, 94 Misc. 502; People ex rel. Barone v. Fox, 202 N. Y. 616; People ex rel. Bridgeport Sav. Bank v. Feitner, 191 N. Y. 88; Matter of Kenny, 23 Misc. 9; People v. Henriques & Co., 267 N. Y. 398; Hovey v. Elliott, 167 U. S. 409; Twining v. New Jersey, 211 U. S. 78; People ex rel. Ordway v. St. Saviour’s Sanitarium, 34 App. Div. 363.) The fact that section 446 of the Correction Law provides for a hearing on the return of a writ of habeas corpus does not save the situation. (People ex rel. Ordway v. St. Saviour’s Sanitarium, 34 App. Div. 363; Wilson v. Standefer, 184 U. S. 399; Boynton Cab Co. v. Giese, 237 Wis. 237; Whitley v. Superior Court, 113 P. 2d 449.) The purported order of re-commitment was not made in accordance with the provisions of section 440 of the Correction Law and the relator’s further detention is therefore illegal. (People v. Damron, 212 N. Y. 256; People v. Sutcliffe, 255 App. Div. 299; People ex rel. Doscher v. Sisson, 222 N. Y. 387; People ex rel. Lawton v. Snell, 216 N. Y. 527.) The question of relator’s mental defectiveness is not before the Court of Appeals, nor is the question of relator’s previous commitment. (Matter of Depue, 185 N. Y.

      60; People ex rel. Patrick v. Frost, 133 App. Div. 179; People ex rel. Mumbulo v. Ormsby, 136 Misc. 637; People ex rel. Cockran v. Hyatt, 172 N. Y. 176; Dixon v. LaGuardia, 277 N. Y. 84; People v. Zambounis, 251 N. Y. 94; People v. Miceli, 39 N. Y S. 2d 871; People v. Randazzo, 179 Misc. 127.)

      Nathaniel L. Goldstein, Attorney-General (Orrin G. Judd and A. W. Feinberg of counsel), for respondent.
    Respondent was entitled to hold relator indefinitely. The relator being on parole from Napanoch and guilty of violation of parole, cannot be released on habeas corpus without proof that he is not a mental defective. (People ex rel. Romano v. Thayer, 229 App. Div. 687; People ex rel. Gaudino v. Superintendent of Institution for Male Defective Delinquents, 263 App. Div. 1042; Buck v. Bell, 274 U. S. 200; Matter of Johnson v. Hoffman, 148 Misc. 766; People ex rel. Albert v. Pool, 77 App. Div. 148; People ex rel. Danziger v. P. E. House of Mercy, 128 N. Y. 180.) No violation of constitutional rights is involved in retaining an alleged mental defective on an ex parte order until his sanity or normal mentality has been proved. (Matter of Naylor, 284 N. Y. 188; Bryant v. Crossland, 182 Ky. 556; People ex rel. Werner v. Prendergast, 206 N. Y. 405; People ex rel. Gottschalk v. Brown, 237 N. Y. 483; Matter of Wall, 107 U. S. 265; People ex rel. Morrell v. Dold, 189 N. Y. 546; Sporza v. German Sav. Bank, 192 N. Y. 8; People ex rel. Woodbury v. Hendrick, 215 N. Y. 339; People ex rel. Edwards v. Superintendent of Bellevue and Allied Hospitals, 235 N. Y. 398; People ex rel. Peabody v. Chanler, 133 App. Div. 159, 196 N. Y. 525; People ex rel. Reisner v. N. Y. N. & C. Hospital, 230 N. Y. 119; Hurtado v. California, 110 U. S. 516.) The order of retention was not invalid as premature.
   Lehman, Ch. J.

The relator, Charles Morriale, pleaded guilty to a charge of attempted robbery, third degree, and on April 5, 1935, was sentenced to Sing Sing prison for a term of six years. The relator admitted that he had previously been convicted of a felony. The court in sentencing the relator to Sing Sing prison recommended that he “ receive hospital treatment for his mental condition ”, but made no finding that he was a “ mental defective.”

The relator on April 24, 1935, was transferred from Sing Sing prison to the Institution for Male Defective Delinquents at Napanoch, New York, as a mental defective, (pursuant to Correction Law, § 439), and thereafter, on March 15, 1938, was transferred from Napanoch to the Woodbourne Institution for Defective Delinquents. His term of imprisonment expired on January 23, 1941. On January 10, 1941, a few days before the expiration of the relator’s term of imprisonment, the respondent as Superintendent of Woodbourne Institution for Defective Delinquents presented to the County Judge of Sullivan County a petition for an order authorizing the relator’s retention after the expiration of the relator’s sentence, in accordance with the provisions of section 440 of the Correction Law. On January 18, 1941, the County Judge made an order adjudging the relator to be a mental defective and directing that he be committed to the Woodbourne Institution for Defective Delinquents, “ there to be dealt with according to law.”

No notice of the presentation of the petition was given to the relator, and he had no opportunity to challenge at that time the esc parte assertion and proof that he is a mental defective. In April, 1942, more than a year after the expiration of his term of imprisonment under the sentence imposed upon him as punishment for the criminal offense of which he was convicted, the validity of the order of retention, or recommitment, was challenged on the ground that no notice of the presentation of the petition was given to the relator, and that an order for his retention after the expiration of his sentence deprives him of his liberty without due process of law. The relator also claims that the order is invalid because it was made before the expiration of the relator’s term of imprisonment. The relator’s challenge was sustained at Special Term. The order sustaining the writ was reversed and the writ was dismissed by the Appellate Division, two justices dissenting.

Section 440 of the Correction Law provides that when the term of imprisonment of a prisoner confined in a state institution for defective delinquents ‘1 has expired, and, in the opinion of the superintendent thereof, such prisoner is a mental defective the superintendent shall apply to a judge of a court of record to cause an examination to be made of such person, by two qualified examiners * * If the examiners designated by the court make a certificate that after personal examination they are satisfied that the prisoner is a mental defective, the superintendent “ shall apply to a judge of a court of record for an order authorizing him to retain such prisoner at the institution, accompanying such application with such certificate of mental defect. Such judge, if satisfied that such prisoner is a mental defective, shall issue an order of retention, and such superintendent shall thereupon retain • the prisoner at the institution until discharged as provided by law.”

The statute does not expressly require that notice of an application for the retention of a prisoner after the expiration of his term shall be given to the prisoner. The statute does require that the judge shall issue an order of retention only if satisfied ” that such prisoner is a mental defective. There must be judicial consideration and decision. An ex parte judicial decision that a prisoner otherwise entitled to his liberty shall continue to be retained in custody until, at some future time, he may be discharged by his custodian or may secure his release by habeas corpus proceedings, would be contrary to the traditions of the common law and perhaps would constitute a violation of rights guaranteed by the Constitution. A statute which authorizes a judicial order or decree for a person’s imprisonment or restraint must if possible be given a construction which will not offend constitutional guarantees of liberty or offend fundamental concepts of the common law. Unless the statute provides expressly or by necessary implication that an adjudication may be made without notice to the person whose detention or restraint is sought, we may reasonably find implicit in the statute a direction that the judicial decision and decree shall be made only in accordance with due process of law after notice and opportunity to be heard.

.We are told that the Legislature has supplied appropriate safeguards for the rights of a prisoner in a State institution for defective delinquents who is retained in custody after the expiration of his sentence under an ex parte order of retention, when it authorized an inmate of such an institution to seek “ delivery from custody ” by habeas corpus proceedings in which “ the fact of his mental defectiveness is material to the inquiry”. (Correction Law, § 446.) No order of retention is required where a mental defective convicted of a criminal offense is committed to a State institution for defective delinquents in accordance with section 438 for an indefinite term. In such case the commitment is based upon a judicial determination made after trial that the delinquent is a mental defective. Section 440 has no application in such case. That section applies only where a prisoner has been sentenced after trial to a term of imprisonment in a penal or correctional institution, and is thereafter transferred in accordance with section 438-a or 439, by an administrative order to an institution for defective delinquents without any prior judicial finding of the fact of mental defectiveness.. The place where a prisoner sentenced to imprisonment shall be confined during the term of his imprisonment may, under the statute, be determined by an administrative officer without notice or hearing, and such determination does not violate any constitutional right of the prisoner. After the expiration of the term of the prisoner, his sentence no longer furnishes justification for retaining the prisoner in confinement. He must then be released, unless a judicial order for his retention conforming to the requirements of due process of law is made. Inquiry as to the “ fact of mental defectiveness ” should precede such an order if the order is based upon a finding that the prisoner is a mental defective. An inquiry held thereafter in proceedings brought by an inmate seeking delivery from custody ” can hardly supply a sufficient basis for a decision or order already made. The Legislature provided that a judge of a court of record “ if satisfied that such prisoner is a mental defective, shall issue an order of retention ”. By force of such an order, the prisoner might be confined in an institution for the remainder of his life unless thereafter discharged according to law. No statute has been called to our attention where the Legislature of any state has in clear terms authorized an order for the indefinite confinement of a person until released according to law, without a judicial determination made upon notice to such person or to friends or relatives who might protect his rights. Habeas corpus proceedings authorized by statute constitute an appropriate procedure by which an inmate seeking ‘ ‘ delivery from custody ’ ’ may litigate “ the fact of his mental defectiveness ” even though at some earlier time there may have been a judicial determination that he was a mental defective. We do not think; that the Legislature intended, even if it had the power, that an inquiry in habeas corpus proceedings initiated by an inmate seeking delivery from custody should take the place of a hearing held upon notice to such inmate before the order was made under which the inmate might be held in custody for life.

The respondent maintains that even if we should hold that the order for the relator’s retention, made pursuant to the provisions of section 440 of the Correction Law is invalid, the relator’s retention in custody would be lawful, because no such order was required in his case. In his return to the writ of habeas corpus the respondent alleges: “7. That the delinquency and criminal record of the said Charles Morriale, prior to his conviction on present charge, is as follows: ‘ 3/17/32, Kings County Court, Brooklyn, N. Y. Bobbery 2nd degree; sent to Institution for Male Defective Delinquents, Napanoch, N. Y.; term Indefinite; sent to the Napanoch Institution 4/13/32, paroled 4/13/34.’ ” It is now argued that since the relator violated his parole by committing the crime for which he was thereafter sentenced to imprisonment in Sing Sing for a term of six years, he should have been returned to Napanoch as a parole violator. It is conceded that if his parole had been revoked and he had been returned to Napanoch as a parole violator, no order for his retention in an institution for mental defectives would have been necessary. A mental defective committed in accordance with the provisions of section 438 to a State institution for" defective delinquents may be held under that commitment until paroled by the superintendent of the institution, subject only to his right to seek delivery from custody by habeas corpus proceedings instituted in accordance with section 446 of the Correction Law. (See People ex rel. Romano v. Thayer, 229 App. Div. 687; People ex rel Gaudino v. Superintendent of Institution for Male Defective Delinquents, Napanoch, 263 App. Div. 1042.) That rule has, however, no application in this case, for the return shows that the relator, after he was paroled by the Superintendent of Napanoch Institution was not returned there as a parole violator, but was sentenced for a definite term and is held under that sentence. Since the sentence has expired and the order for the relator’s retention is not valid, the relator is now held under a commitment which furnishes no justification for retaining him in custody and he is entitled to an order sustaining the writ and directing the relator’s discharge from custody without prejudice to a new proceeding, providing notice and opportunity to he heard upon the question of the relator’s alleged mental defectiveness.

The order of the Appellate Division should be reversed and that of the Special Term affirmed, without costs. (See 291 N. Y. 826.)

Loughran, Rippey, Lewis, Conway, Desmond and Thacher, JJ., concur.

Ordered accordingly.


author: Lewis, J. Lehman, Ch. J.

text:
    In the Matter of Mary V. Murray et al., Appellants, against Fiorello H. LaGuardia, as Mayor of the City of New York, et al., Respondents.
    Argued September 9, 1943;
    decided December 2, 1943.

      Menahem Stim, Michael J. Mahoney, Jr., and Murray W. Greif for appellants.
    The Redevelopment Companies Law (L. 1943, ch. 234) is unconsitutional in that it is violative of the purposes and intent of Article XVIII of the State Constitution. A statute which grants the benefit of the exercise of the power of eminent domain to a municipality for the benefit of a private corporation ostensibly regulated by law as to rents, profits, dividends and disposition of its property or franchises to engage in providing housing facilities, but which enables that private corporation to shake off the regulations imposed by law, at its will, is clearly in violation of the provisions of section 2 of article XVIII of the Constitution. (Queens Terminal Co. v. Schmuck, 147 App. Div. 502; Matter of Petition of N. Y., L & W. Ry. Co., 99 N. Y. 12.) The mere physical clearance and reconstruction of slum areas without regard to the welfare of the slum dwellers is not within the meaning of the public purpose as intended by the Constitutional Convention when it adopted article XVIII. (Revised Record of Constitutional Convention, vols. II, III, pp. 1484-1718.) The Redevelopment Companies Law is unconstitutional in that it is violative of the provisions of article I, section 7(a) of the State Constitution and of the Fourteenth Amendment of the United States Constitution. The purpose for which

      the Stuyvesant project is to be built is a private and not a public purpose. To grant the power of eminent domain for a private purpose is violative of the provisions of article I (§ 7a) of the State Constitution. (Waterloo Woolen Mfg. Co. v. Shanahan, 128 N. Y. 345; Deerfield River Co. v. Wilmington Power Co., 83 Vt. 548; Olmsted v. Morris Aqueduct, 47 N. J. L. 311; Board of Health v. Van Hoesen, 87 Mich. 533; Matter of Niagara Falls & Whirlpool Ry. Co., 108 N. Y. 375; Matter of Mayor of New York, 135 N. Y. 253; Matter of New York City Housing Authority v. Muller, 270 N. Y. 333.) For the same reason the Act is violative of the provisions of the Fourteenth Amendment of the Constitution of the United States. (Missouri Pac. Ry. Co. v. Nebraska, 164 U. S. 403; Chicago, Burlington & Quincy Ry. Co. v. Illinois, 200 U. S. 561.) The plan and contract are not in conformity with the provisions of the Redevelopment Companies Law. The respondents are in error when they contend that the regulatory provisions continue only until the rehabilitation purpose is accomplished. Both the Constitution and the enabling act provide for regulation of the redevelopment company long after the completion of the rehabilitation project.

      Henry Epstein, Edivard Weinfeld and Shirley Adelson for Citizens’ Housing Council of New York, Inc., et al., amici curiae, in support of certain of appellants’ points.
    The Redevelopment Companies Law violates article XVIII, section 2, of the State Constitution. Section 26 of the Redevelopment Companies Law permitting the local legislative body to grant tax exemption by contract, without setting up standards or guides, in substance violates article III, section 17, of the State Constitution or unduly delegates to the local body legislative power which the Legislature itself does not possess. (Troy Union R. R. Co. v. City of Troy, 227 App. Div. 351, 253 N. Y. 597.)

      Ignatius M. Wilkinson, Corporation Counsel (Jeremiah M. Evarts and William S. Lebwohl of counsel), for City of New York et al., respondents.
    The Redevelopment Companies Law and the contract at bar conform in every 'respect with the requirements of article XVIII of the Constitution. (Clark v. Nash, 198 U. S. 361.) The statute is a valid exercise of legislative power designed to accomplish the constitutional purpose of rehabilitation. (Noyes v. Erie & Wyoming Farmers Co-op. Corp., 281 N. Y. 187.) The contract conforms with the provisions and purpose of the law and is in all respects a valid contract.

      Samuel Seabury and Frederic G. Dunham for Metropolitan Life Insurance Company et al., respondents.
    Article XVIII of the Constitution applies, by its express terms, to low rent housing projects “or” to projects for-the rehabilitation of substandard and insanitary areas — two distinctly different things. Hence there is no merit in appellants’ claim that the project here involved is not within the scope of the article because it is a rehabilitation, and not a low rent housing, project. The Act provides that public regulation of redevelopment corporations may be terminated upon the corporation’s payment of all taxes previously exempted — an event which, by the terms of the Act, can not occur until after rehabilitation has been completed and the • public purpose has been fully accomplished. That provision is not unconstitutional: under the terms of the Housing article (XVIIÍ), leaving it to the Legislature to prescribe the “ terms and conditions ” on which rehabilitation shall be accomplished, the Legislature was not required to impose any public regulation whatever on redevelopment corporations. Hence there can be no complaint because the regulation which it did impose was not made to continue longer. (Noyes v. Erie & Wyoming Farmers Co-op. Corp., 281 N. Y. 187; Nebbia v. New York, 291 U. S. 502.) There is no merit in appellants’ contention that the Act is unconstitutional because it authorizes the condemnation of private property for a use which is not “ public ”. Not only does the Act declare that the taking of property for rehabilitation is a taking for a public purpose, but the Constitution itself so declares. The fact that the redevelopment company may dispose of the property at a profit, after the public purpose has been fully accomplished, does not alter the fact that the taking is for a public use. (Matter of New York City Housing Authority v. Muller, 270 N. Y. 333; Hudson River Regulating District v. F., J. & G. R. R. Co., 249 N. Y. 445; Brown v. United States, 263 U. S. 78; Clark v. Nash, 198 U. S. 361; Strickley v. Highland Boy Mining Co., 200 U. S. 527; Hairston v. Danville & Western Ry. Co., 208 U. S. 598; Union Lime Co. v. Chicago &

      Northwestern Ry. Co., 233 U. S. 211; Rindge Co. v. County of Los Angeles, 262 U. S. 700; United States v. Gettysburg Elec. Ry. Co., 160 U. S. 668.)
   Lewis, J.

This appeal presents for decision a challenge to the constitutionality of the Redevelopment Companies Law. (L. 1942, ch. 845, as amd. by L. 1943, ch. 234.)

That challenge is by the petitioners who resist action by the defendants in furtherance of a redevelopment project promoted by the city of New York and to be financed by funds furnished by Metropolitan Life Insurance Company as a means to effect the clearance and rehabilitation of an area found by the New York City Planning Commission to be substandard and insanitary.

The project itself calls for the acquisition and clearance of eighteen city blocks and the erection within that area of thirty-five thirteen-story buildings which will contain more than eighty-eight hundred apartments and will house twenty-four thousand persons. The site of the project is the area bounded by East 14th Street, First Avenue, East 20th Street, East River Drive and Avenue C in the borough of Manhattan.

To accomplish that undertaking it is proposed that a contract and plan, formulated under provisions of the Redevelopment Companies Law, will be entered into by the City with the defendants Stuyvesant Town Corporation and Metropolitan Life Insurance Company ■ — to which it will be convenient to refer as “ Stuyvesant ” and “ Metropolitan ” respectively. From the proposed contract it appears that Metropolitan has caused Stuyvesant to be organized as a redevelopment corporation; that Metropolitan is the owner of all the capital stock of Stuyvesant; that it will furnish all funds required to complete the redevelopment project and will guarantee performance by Stuyvesant of the latter’s obligation to complete the work of clearance and reconstruction according to the plan therefor.

The petitioners, who own real property within the eighteen city blocks which it is proposed to clear and redevelop, seek by this proceeding to enjoin further action by the defendants designed to accomplish that project. At Special Term the petitioners’ motion for injunctive relief was denied and the petition was dismissed on the merits. At the Appellate Division the order of Special Term was affirmed, two justices dissenting. The petitioners appeal to this court as of right.

For a long period of years both State and municipal governments have recognized an ever increasing social and economic loss due to conditions in those blighted urban areas where slums exist. It is a fact within common knowledge that conditions prevailing in slum areas affect the health, safety and welfare of the public, causing indirectly a heavy capital loss and a diminishing return of tax revenues., We took notice of the existence of those conditions and their demoralizing effect when it was said in behalf of this court by Crouch, J.— ‘ ‘ The public evils, social and economic, of such conditions, are unquestioned and unquestionable.” (Matter of New York City Housing Authority v. Muller, 270 N. Y. 333, 339.) Those conditions, when later brought to the attention of the Constitutional Convention of 1938, prompted an intensive study of the problem involved. The product of that study was the new article XVIII of the State Constitution which was proposed by the Convention of 1938 and in that year adopted by the People. For our present purposes it is enough to quote only the following portions of article XVIII:

“ [Housing for persons of low income; slum clearance.]

“ Section 1. Subject to the provisions of this article, the legislature may provide in such manner, by such means and upon such terms and conditions as it may prescribe for low rent housing for persons of low income as defined by law, or for the clearance, replanning, reconstruction and rehabilitation of substandard and insanitary areas, or for both such purposes, and for recreational and other facilities incidental or appurtenant thereto.

[Idem; power of legislature in aid of.] |

“ § 2. For and in aid of such purposes, notwithstanding any provision in any other article of this constitution, but subject to the limitations contained in this article, the legislature may: * * * authorize and provide for loans by the state and authorize loans by any city, town or village to or in aid of corporations regulated by law as to rents, profits, dividends and disposition of their property or franchises and engaged in providing housing facilities; * * * grant or authorize tax exemptions in whole or in part, except that no such exemption may be granted or authorized for a period of more than sixty years; * * * grant the power of eminent domain to any city, town or village, to any public corporation and to any corporation regulated by law as to rents, profits, dividends and disposition of its property or franchises and engaged in providinghousing facilities.”

The broad powers given to the Legislature by those new provisions of the Constitution quoted above are the bases for the enactment of the Eedevelopment Companies Law, the unconstitutionality of which is now asserted by the petitioners.

In the present case we are concerned with only one of the two separate grants of power stated in section.1 of article XVIII — that single grant of power being to “ provide in such manner, by such means and upon such terms and conditions as it [the Legislature] may prescribe * * * for the clearance, replanning, reconstruction and rehabilitation of substandard and insanitary areas * * * and for recreational and other facilities incidental or appurtenant thereto.” (Emphasis supplied.)

Insofar as is material to our present inquiry the statute — after declaring in section 2 the legislative policy and purposes which prompted its enactment — authorizes (§4) the incorporation of “ redevelopment companies ”, the corporate purposes of which are stated to be to acquire one or more areas and to construct, own and operate projects according to a “ plan,” which is defined (§3, subd. 5) as an “ * * * undertaking for the clearance, replanning and reconstruction or rehabilitation of a substandard or insanitary area or areas and for recreational and other facilities incidental or appurtenant thereto to effectuate the purposes of article eighteen of the constitution * * The statute also provides (§25) tha,t a redevelopment company may be organized and financed by an insurance company which in turn may “ own and control, the stock or the income debenture certificates or both of any redevelopment company * * *.” When a plan for a redevelopment project is proposed, and after preliminary approval thereof by the chief fiscal oEcer of the municipality as to conformity with the provisions and purposes of the Act, section 15 requires that the plan be submitted to the municipal planning commission for its approval as to certain designated features. Upon a statement of action taken thereupon by the planning commission, which may make any one of several recommendations as prescribed in the Act, the plan, with a proposed form of contract between the municipality, the redevelopment company and any insurance company owning all the stock and debentures of the redevelopment company, shall be submitted to the local legislative body for its approval. The statute requires that such approval shall show conformity with the provisions and purposes of the Act and, among other matters, the extent of tax exemption to be granted to the redevelopment company, “ the amount and nature of property to be condemned for the redevelopment company by the municipality ” and the terms and conditions of payment therefor by the redevelopment company. Where, as in the present case, the redevelopment company is financed by an insurance company, the contract and plan must be approved by the Superintendent of Insurance. (§ 15, § 3, subd. 10.) If the planning commission shall have issued a certificate of unqualified approval of the plan, and if the Superintendent of Insurance has formally indicated his approval, the approval thereof by the local legislative body may be by resolution adopted by a majority of the whole number of votes authorized to be cast by the members thereof. (§ 15, § 3, subds. 6, 7,10.)

Under conditions clearly stated ill the Act a municipality is authorized to “ take property by condemnation for a redevelopment company,” and when title to the real property shall have vested in a municipality, it shall convey the same to the redevelopment company upon final compliance by the redevelopment company * * * ” with the terms and conditions of the contract entered into by the municipality with a redevelopment company and an insurance company for the completion of such a project. (§§ 20, 15.) . Finally as to conditions under which a redevelopment company may gain tax exemption: by section 26 of the statute the local legislative body of a municipality in which a rehabilitation project is to be undertaken is authorized to agree with a redevelopment company to exempt from local and municipal taxes, other than those for local improvements, for a period not exceeding twenty-five years, all or part of the value of the property included in the project which represents an increase over the assessed valuation of the real property to be acquired. A redevelopment company which has been granted and has received such tax exemption may at any time elect to pay to the municipality the total of all accrued taxes for which exemption has been granted and received, together with interest at the rate of five per cent per annum. Upon such payment tax exemption of the project shall terminate. (§ 26.) After such termination of tax exemption the company may voluntarily dissolve and convey title in fee to the project to its stockholders, or take other action outlined in section 24, and thereupon the provisions of the Bedevelopment Companies Law shall become inapplicable to the project and to its owner. (§ 24.)

We find no sound basis for the constitutional objection advanced by the petitioners that the condemnation of private property authorized by the Bedevelopment Companies Law is not for a public use. Such a suggestion is refuted by the language of the Constitution itself which specifically proclaims that those separate grants of power to the Legislature made in article XVIII section 1 — to provide for low rent housing or for clearance and rehabilitation of substandard areas — are “ public purposes.” The question of what is a public purpose being primarily a matter of State concern (Clark v. Nash, 198 U. S. 361, 367, 368), we look to the formal statement of legislative policy which was declaratory of the purpose and led to the enactment of the Bedevelopment Companies Law. That statement in the statute (§2) concludes as follows: “ * * * the necessity in the public interest for the provisions hereinafter enacted is hereby declared as a matter of legislative determination.” (See, also, § 20.) Although we are aware that such a declaration of legislative policy is not conclusive upon the question of public purpose (Block v. Hirsh, 256 U. S. 135, 154), we cannot say that the declarations by the Legislature of the reasons for the enactment of. the statute now challenged are “ palpably without reasonable foundation.” Accordingly we give them weight. (United States v. Gettysburg Electric Ry. Co., 160 U. S. 668, 680; Block v. Hirsh, supra, p. 154.)

Nor do we find merit in the related argument that unconstitutionality results from the fact that in the present case the statute permits the City to exercise the power of eminent domain to accomplish a project, from which Metropolitan — a private corporation — may ultimately reap a profit. If, upon completion of the project the public good is enhanced it does not matter that private interests may be benefited. (Board of Hudson River Regulating District v. Fonda J. & G. R. R. Co., 249 N. Y. 445, 453.) True it is that under the provisions of the proposed contract and plan and under the sanction of both article XVIII, section 2, of the Constitution and section 26 of the Redevelopment Companies Law, there becomes effective on the date when the benefits of such an exemption shall first bcome available, a tax exemption limited to the value of improvements on the land and which represents an increase over the assessed value of the property acquired for the project. The Constitution (art. XVIII, § 2) limits such a tax exemption to sixty years; the statute (§26) reduces the period of that limitation to twenty-five years. In the case at hand the proposed contract follows the statute (§26) and provides that exemption may be effective for twenty-five years unless prior to the end of that period Stuyvesant elects to pay to the city all taxes which have accrued against the project for which Stuyvesant has exercised its right of exemption under the contract, with interest thereupon at the rate of five per cent per annum. In that event tax exemption ceases at the time the payment due in connection with such election is made. In the project here involved the tax exemption which may be granted to Stuyvesant will commence — as prescribed by both the statute (§ 26) and the proposed contract (par. 306) ■— from the date on which the benefits of such exemption first become available and effective.” That date is fixed by the contract (par. 306) as follows: “ The date on which the benefits of such exemption shall first become available and effective shall be the date of completion of the project.” It is thus made clear that such tax exemption, which, as we have seen, is limited to the value of improvements made within the area, cannot occur until the project itself — the work of redevelopment and rehabilitation within the substandard area — has been completed and the public purpose for which the project was designed has been accomplished. It should be added that during the period of tax exemption the statute (§16) makes it unlawful for the redevelopment company “ to change or modify any feature of a project ” without the approval of the municipal planning commission, except by a three-quarters vote of the local legislative body. And during the period of such tax exemption the redevelopment company shall not have power to sell any project without the consent of the local legislative body.” (§ 23.)

There is no requirement, as asserted by the petitioners, that Stuyvesant must be subjected to regulation by law for all time as to rents, profits, dividends and the disposition of its property. The Constitution (art. XVII'I, § 2) provides for only two instances where such regulation is required. One instance is where loans are authorized by the State and by any city, town or village to corporations regulated by law as to such rents, profits, dividends and disposition of property and engaged in providing housing facilities. The other instance is where the power of eminent domain is granted directly to the corporation. In the present case Stuyvesant is to receive no loan of funds from the State, nor from any city, town or village. Nor is Stuyvesant granted the power of eminent domain. Under the statute (§ 20) and under the proposed contract (pars. 202-204) the power of eminent domain is to be exercised only by the city which under conditions set forth in the statute (§20) may convey to Stuyvesant the title to all property thus acquired.

There remains for consideration the charge that the Redevelopment Companies Law is unconstitutional because it is not confined to slum clearance and to reconstruction for former slum dwellers. The answer, we think, is found in the significant use of the word “ or ” in article XVIII, section 1. That constitutional provision grants to the Legislature authority to provide for low rent housing for persons of low income, “ or ” to provide for ‘ ‘ the clearance, replanning, reconstruction and rehabilitation of substandard and insanitary areas ”. Authorization is thus given to the Legislature to accomplish either of those two purposes “ or for both such purposes ”. The two purposes, however, are distinct, one being designed to authorize low rent housing for persons of low income as defined by law, the other authorizing appropriate legislation to bring about the clearance and rehabilitation of substandard areas as a means to protect public health and morals and to restore and preserve the financial stability of municipalities which suffer indirectly from conditions existing in those blighted districts. (See New York State Constitutional Convention [1938], Revised Record, vol. II, pp. 1533, 1559, 1567, 1568, 1577, 1581.) The project with which we are now concerned involves the clearance and rehabilitation of a substandard and insanitary area — not low rent housing for persons of low income.

The People by the adoption of article XVIII of the State Constitution, and the Legislature, by the enactment of the Redevelopment Companies Law, have recognized that the sinister effect of substandard, insanitary areas, wherever slums exist, exerts a malign influence upon the community at large and thus justifies public control and corrective measures. The statute with which this proceeding is concerned is an effort by the Legislature to promote co-operation between municipal government and private capital to the end that substandard, insanitary areas in our urban communities may be rehabilitated. We are not persuaded that the enactment for that purpose —the statute now challenged by the petitioners — is unreasonable, arbitrary or capricious, or that it bears no real and substantial relation to the object sought to be attained. (Nebbia v. Hew York, 291 U. S. 502, 525.) Nor do we find in the statute such a “ clear usurpation by the Legislature of prohibited power as must be found before a statute can be pronounced unconstitutional and void.” (Matter of Ricker v. Village of Hempstead, 290 N. Y. 1, 5; People ex rel. Metropolitan Street Ry. Co. v. State Board of Tax Commissioners, 174 N. Y. 417, 437.)

The order should be affirmed, with costs.

Lehman, Ch. J.

(dissenting). Under the provisions of article XVTII, section 2, of the Constitution of the State of New York, the power of eminent domain may not be granted to a private corporation unless it is “ regulated by law as to rents, profits, dividends and disposition of [its] property or franchises ”. A corporation which can if it chooses free itself from regulations imposed upon it by law or can transfer its property to a corporation which is not regulated does not fall within the class of corporations to which the power to take private property may be granted. Nor may the power of eminent domain be granted to a city or public corporation for the purpose of taking private property to be transferred to and held thereafter by a private corporation to which the power of eminent domain could not be granted directly.

The order should be reversed.

Loughran, Conway and Desmond, JJ., concur with Lewis, J.; Lehman, Ch. J., dissents, in opinion in which Rippey, J., concurs; Thacher, J., taking no part.

Order affirmed.


text:
    In the Matter of Camille C. Pierne, Respondent, against Lewis J. Valentine, as Police Commissioner of the City of New York, et al., Appellants. In the Matter of Terence J. Harvey, Respondent, against Lewis J. Valentine, as Police Commissioner of the City of New York, et al., Appellants. In the Matter of Thomas F. Keevan, Respondent, against Lewis J. Valentine, as Police Commissioner of the City of New York, et al., Appellants.
    Argued May 28, 1943;
    decided December 2, 1943.

      Robert H. Schaffer, Acting Corporation Counsel (Paxton Blair and Raymond J. Horowitz of counsel), for appellants.
    Since the petitioners could raise, upon certiorari, the question of the Police Commissioner’s jurisdiction to try them, there was no justification for recourse to prohibition — a remedy uniformly denied in cases of this nature. Moreover, the public interest requires that the departmental trials occur, in order that the root of the evils referred to in the Grand Jury’s presentment may be uncovered, and measures taken to rectify conditions. (Matter of Moran v. Wilson, 258 App. Div. 864; People ex rel. Crowley v. Butler, 53 Misc. 366; People ex rel. Kennedy v. Foley, 104 Misc. 684; Matter of Bryan v. Town Board of Brighton, 133 Misc. 315; People ex rel. Tuck v. French, 108 N. Y. 105; People ex rel. Livingston v. Wyatt, 186 N. Y. 383; Matter of Hussein Lutfi Bey, 256 U. S. 616; Matter of Rice, 155 U. S. 396; People ex rel. Mulkins v. Jimerson, 229 N. Y. 438; People ex rel. Ballin v. Smith, 184 N. Y. 96; People ex rel. Jordan v. Wotherspoon, 94 Misc. 419; United States ex rel. Denholm, & McKay Co. v. U. S. Board of Tax Appeals, 75 App. D. C. 195, 125 F. 2d 557.) Under the 1940 revision (Local Law No. 2, 1940) of the police pension chapter of the Administrative Code, an application for retirement is not self-executing. A resolution of the Board of Trustees is necessary to effectuate it. To hold otherwise might open the door to wholesale retirements, with grave injury to the public welfare in time of war. (Matter of State of New York, 207 N. Y. 582; Matter of City of

      Long Beach v. Sprague, 273 N. Y. 607; Matter of McMeekan v. Department of Health, 157 Misc. 620, 249 App. Div. 609, 274 N. Y. 521; People ex rel. Brady v. Martin, 145 N. Y. 253; People ex rel. Tuck v. French, 108 N. Y. 105; People ex rel. Bolster v. French, 46 Hun, 232; People ex rel. Fitzpatrick v. Greene, 181 N. Y. 308; Rees v. Teachers’ Retirement Board, 247 N. Y. 372; Matter of Rogalin v. New York City Teachers’ Retirement Board, 290 N. Y. 664; Matter of Roche v. Waldo, 141 App. Div. 872, 203 N. Y. 610; People ex rel. Hardy v. Greene, 87 App. Div. 588; Kiernan v. Hunter College Retirement Board, 255 App. Div. 378; MacIntyre v. Retirement Board of San Francisco, 42 Cal. App. 2d 734; Walter v. Police & Fire Pension Comm. of Trenton, 120 N. J. L. 39.) While Keevan had obtained from the Medical Board a certificate that he was physically incapacitated, nevertheless under section B18-4.0, e, of the Administrative Code such medical findings are advisory only and do not relieve the Board of Trustees of the necessity of determining whether such physical disability was or was not incurred in line of duty. (Matter of Hickie v. Valentine, 177 Misc. 743, 262 App. Div. 832; Matter of Browne v. Valentine, 104 N. Y. L. J. 625, 261 App. Div. 889.)

      Sydney Rosenthal and Benjamin J. Jacobson for respondents.
    The retirement statute being self-executory, petitioners Pierne and Harvey were automatically retired upon the effective dates of their applications filed therefor. (People ex rel. Fitzpatrick v. Greene, 181 N. Y. 308; Mullarkey v. Valentine, 245 App. Div. 837; Rees v. Teachers’ Retirement Board, 247 N. Y. 372; Matter of Creveling v. Teachers’ Retirement Board, 255 N. Y. 364; Matter of Rogalin v. New York City Teachers’ Retirement Board, 290 N. Y. 664; Fitzpatrick v. New York State Teachers’ Retirement Board, 212 App. Div. 760, 241 N. Y. 515; Hunn v. New York State Teachers’ Retirement System, 264 App. Div. 188, 289 N. Y. 171.) As the statute governing disability retirement, like the service-retirement statute, is self-executory, Keevan was automatically retired, upon the issuance of the police surgeon’s certificate of disability, and no charges could thereafter be preferred against him. (Matter of Hickie v. Valentine, 177 Misc. 743, 262 App. Div. 832; Rees v. Teachers’ Retirement Board, 247 N. Y. 372.) The fact that retirement under section B18-4.0-C of the Administrative Code is automatic upon the filing of an application therefor is not against public policy. (Matter of Rogalin v. New York City Teachers’ Retirement Board, 290 N. Y. 664. J" An order in the nature of prohibition to restrain the Police Commissioner from exercising judicial or quasi-judicial functions in excess of jurisdiction, is the proper remedy under the circumstances and should be granted. (Quimbo Appo v. People, 20 N. Y. 531; Matter of Quinby v. Public Service Comm., 223 N. Y. 244; People ex rel. Hylan v. Finegan, 227 N. Y. 219; Matter of O’Donnell v. Morrissey, 151 Misc. 315; Matter of Requa v. White, 170 Misc. 29.
   Lehman, Ch. J.

On March 16,1942, the petitioner-respondent Camille C. Pierne, an inspector in the Police Department of the City of New York, filed an application for retirement from the police force effective at midnight on the same day, and to be placed on the roll of the Police Pension Fund and to be granted an annual pension during his lifetime, according to law. At the time the application was made the petitioner-respondent had been a member of the police force for more than thirty years, was over the age of fifty-five years, and no formal charges were at that time pending against him.

On March 24, 1942, the petitioner-respondent Harvey, then a lieutenant in the Police Department of the City of New York, filed a similar application for retirement from the police force and for an annual pension, the application to take effect at midnight of the same day. At that time Harvey had been a member of the police force for more than twenty-eight years and was over the age of fifty-five years. No charges were pending against him.

On March 2,1942, the petitioner-respondent, Keevan, a patrolman on the police force, filed an application for a medical examination ” by the police surgeons for the purpose of determining his fitness to perform police duties, and in that application he stated that he was of the opinion that he was permanently disabled and unfit for police duty. A medical examination by a Medical Board of the Police Fund was had on March 10, 1942, and the medical board found the petitioner-respondent physically incapacitated to perform full police duty by reason of chronic arthritis and sacro-iliac disease, and the Medical Board recommended to the Police Commissioner as chairman of the Board of Trustees of the Police Pension Fund that the petitioner be retired from the uniformed force of the Police Department because of such disability. No charges were pending against him, and he had been a member of the police force since May, 1922.

At the time when the three petitioners-respondents filed their application for retirement, a special Grand Jury was investigating charges of official corruption in the borough of Brooklyn, and Hon. John Harlan Amen was conducting the investigation as Assistant Attorney-General of the State. In connection with that investigation, Mr. Amen undertook an investigation of the conduct of various police officers in connection with the enforcement of the gambling laws. The three petitioners-respondents were called as witnesses and testified concerning their conduct as police officers, waiving immunity, on numerous occasions between May, 1941, and January, 1942. We may surmise that, when they applied for retirement, they knew that charges against them might be presented. On April 8, 1942, after the petitioners-respondents had filed their applications for retirement and before the trustees of the Police Pension Fund had taken any action upon the applications, the Grand Jury filed presentments containing charges of dereliction of official duty against the three defendants, and transmitted the charges to the Commissioner of Police of the City of New York “ for such disciplinary action and further proceedings as he deems fitting and proper.” The presentments were filed at that particular time and were transmitted to the Police Commissioner for the avowed purpose of inducing the trustees of the Pension Fund to withhold approval of the applications made by the petitioners-respondents for retirement until after there had been opportunity to present and try charges against the petitioners-respondents. Accordingly the Commissioner thereafter served charges and specifications upon each of the applicants for retirement and suspended the applicants. They received notice of hearings to be held at a date fixed in the notice. Claiming that under the law the applications for retirement had become effective without action by the trustees of the retirement fund or other official body or officer, and that they were no longer members of the police force or subject to disciplinary action by the Commissioner at the time the charges against them were filed, the petitioners-respondents sought orders prohibiting the defendants from proceeding with hearings upon the charges. The petitions were dismissed by the court at Special Term on the ground that the. retirement law was not self-executing and that applications for retirement become effective only after the Board of Trustees of the Pension Fund have acted upon such applications. Upon appeal to the Appellate Division the orders dismissing the petitioners were reversed “ on the law ” by a divided court and orders of prohibition granted.

An order of prohibition can, of course, be issued only if the Police Commissioner is entirely without jurisdiction to hear and decide the charges, but, concededly, he would have no jurisdiction in disciplinary proceedings against the petitioners-respondents if retirement was accomplished, without any resolution by the Board of Trustees of the Pension Fund, before the charges were filed. Prohibition is, however, an extraordinary remedy, and an order of prohibition will ordinarily not be granted where there is other adequate remedy for usurpation of jurisdiction by a tribunal. In this case the defendants-appellants urge that certiorari would constitute an adequate remedy, even assuming that the Commissioner has no longer any disciplinary power over the petitioners-respondents. Both the court at Special Term and the Appellate Division held that a prohibition proceeding was a proper method of challenging in advance the jurisdiction of the Commissioner to proceed with the charges. Certiorari would not in our opinion be an adequate remedy in this case, and the petitioners might suffer irreparable damages if they were compelled to defend themselves against the charges if, as matter of law, they are no longer members of the Police Department. Certainly there is at least room for the exercise of discretion, and since both courts agreed that an order of prohibition should issue if, as matter of law, the petitioners were no longer members of the police force, we may not review such exercise of discretion, even though the order denying prohibition was reversed as ‘1 matter of law ’ ’ on other grounds.

The Legislature has, in title B, article 1 of chapter 18 of the Administrative Code of the City of New York (L. 1937, ch. 929, as amd.), determined the manner in which the Police Pension Fund shall be administered and has defined the rights and obligations of a member of the police force who, upon retirement, is entitled to receive a pension. The statute provides that the police pension fund shall be administered by a board of trustees * * * ” (§ B18-2.0, subd. a) and that Every act of the board of trustees shall be by resolution which shall be adopted only by a vote of at least seven-twelfths of the whole number of votes authorized to be cast by all of the members of such board ” (subd. b of the same section). In section B18-4.0, entitled “ Payment of pensions; disability; retirement for service,” the statute provides:

a. The board of trustees shall retire any member who, upon an examination, as provided in subdivision d * * * , may be found to be disqualified, physically or mentally, for the performance of his duties. Such member * * * shall receive * * * an annual pension as provided in this section. In every case such board shall determine the circumstances thereof * * *.
“c. Any member who: [1.] Shall have elected to contribute on the basis of retirement after twenty years of service and who has or shall have performed service in the force for at least twenty years, or [2.] Shall have elected to contribute on the basis of retirement after Uventy-five years of service and who has or shall have performed service in the force for at least twenty-five years, upon his own application in writing shall be retired from such force and service, and placed on the roll of the pension fund, and awarded and granted, to be paid from such fund, an annual pension during his lifetime, of not less than one-half his full salary at the date of his retirement from service.
“ g. The granting of a pension on severance from service for fault or delinquency shall not be a matter of right, but such a pension may be granted in consideration of special circumstances by the board of trustees and a vote of at least two-thirds of the whole number of votes authorized to be cast by all the members of such board.”
Except as restricted by the Constitution of the State, the Legislature may, by statute, determine in what circumstances and under what conditions a member of the police force, or officer, or employee of the State, or of a Municipal Corporation, shall be entitled to retire and, upon retirement, to receive a pension or other retirement benefit. Until the retirement is accomplished in accordance with the statute, an application for retirement does not, by its own force, terminate an applicant’s membership in the police force. By the use of appropriate language the Legislature can indicate its intention that retirement shall not be effective until a retirement board or an administrative officer has approved the application or has determined that the statutory condition for retirement actually exists, or the Legislature can indicate its intention that the statute shall execute itself,” and in such case when necessary conditions actually exist the retirement is accomplished by the policeman’s application, without any action upon the part of any other body.” (People ex rel. Fitzpatrick v. Greene, 181 N. Y. 308, 310.)

In that case this court held that the Police Commissioner of the City of New York had no jurisdiction to try charges filed against a police officer who had applied for retirement when no charges were pending and who was entitled to be retired upon a pension pursuant to section 355 of the Greater New York Charter (L. 1901, ch. 466) then in force. Under the provisions of that section of the Charter, an honorably discharged soldier or sailor from the army or navy of the United States in the Civil War “ who has * * •* performed duty on such police force * * * for a period of twenty years or upwards, upon his own application in writing * # * provided there are no charges against him pending, must be ” retired on a pension. Since retirement upon the application of the police officer was, under the Charter, mandatory if no charges were pending when the application was made, the court felt constrained to hold that the Legislature had withheld from the Police Commissioner power in the exercise of his discretion to postpone the retirement until opportunity was afforded to investigate charges of misconduct filed thereafter. If the Legislature in section B18-4.0, subdivision c, had used the same language, then under the authority of the cited case the retirement of the petitioners Pierne and Harvey would have been accomplished when the application was made and before the charges were filed.

The question as to these petitioners which is presented upon this appeal is whether the rule formulated in section 355 of the Charter as construed by this court in People ex rel. Fitzpatrick v. Greene (supra) has been changed. That section of the Charter did not, however, apply to retirement for disability. Retirement for such cause was regulated by section 354 of the Charter and is now regulated by section B18-4.0, subdivision a, of the Administrative Code. The Charter section provided expressly that the Police Commissioner ‘ ‘ shall have power, in his discretion, to retire ” a member of the police force who shall have become disabled. The Administrative Code provides that the board of trustees shall retire ” any member who may be found to be disqualified upon an examination held in accordance with the statute. Plenary discretion formerly expressly conferred upon the board iá in such case now withheld from the board. A medical board has found the petitioner Keevan is disqualified. The question as to that petitioner which is presented upon this appeal is whether the Legislature which commands peremptorily that the hoard shall retire a member in such case intended to provide that the retirement “ is accomplished ’ ’ and severance from service is complete without action by the board “ when the necessary condition exists.”

Where a statute commands an officer or board to retire an applicant for retirement and to grant a retirement benefit when the necessary condition for retirement actually exists, the retirement is not complete until such officer or board has obeyed the command of the statute. If the applicant can show facts which leave no room for the exercise of discretion by the officer or board under a duty to complete the retirement, obedience to the command of the statute may be in proper case compelled by order of the court. Nonetheless, the retirement remains incomplete until every step required by the statute has been taken. (People ex rel. Brady v. Martin, 145 N. Y. 253.) In that case the court pointed out that under a statute which provided that any member of the police force who has performed duties thereon for twenty years or more “ shall, by resolution, adopted by a majority vote of the full board, be relieved and dismissed from such force and service and placed on the roll of the police pension fund,” the board is not deprived of all discretion, but “ where grave charges of misconduct have been preferred immediately after the application for retirement has been made, and before it has been acted upon by the board, we think the board has the right, before proceeding to act upon the application, to investigate such charges ” (p. 260). Certainly under the provisions of subdivision a of section B18-4.0, where a member of the police force has been ‘ ‘ found to be disqualified, physically or mentally, for the performance of his duties such finding does not in itself accomplish retirement, for the statute expressly commands that “ the board of trustees shall retire any member ” and retirement by the board like every other action by the board, must be taken by resolution. The board, it seems clear, is not bound to act until it has investigated the charges filed against the petitioner Keevan after he applied for retirement, and no order can be issued prohibiting the Commissioner from trying the charges. (See Matter of Eberle v. La Guardia, 285 N. Y. 247.)

The answer is not so clear to the question whether the retirement of the petitioners Pierne and Harvey is complete upon their own application in writing made in accordance with subdivision 3 of section B18-4.0. Where a statute provides in express terms that the “ application shall retire ” an officer or employee of the State or of- a Municipal Corporation and does not command an officer or board to retire the applicant, we have held repeatedly that the retirement is accomplished by the application. (Matter of Rogalin v. New York City Teachers’ Retirement Board, 290 N. Y. 664.) On the other hand, where the statute provides that, when the necessary condition exists, an officer or board shall retire an applicant entitled to retire, however peremptory the command may be, we have consistently held that the retirement is not accomplished until the board has acted. (People ex rel. Brady v. Martin, supra; Matter of Eberle Y. La Guardia, supra.) Subdivision c of section B18-4.0 does not provide in express terms that the application shall retire ” the member of the police force who is applying for retirement, nor does it in express terms provide, as did section 355 of the former Charter of the City of New York, that the applicant must be retired if no charges are then pending. On the other hand, the language of the Administrative Code that a member shall be retired on his own application ” is strikingly similar to the language used in the former Charter, and the new statute does not in express terms provide that the applicant shall be retired by the board of trustees. Our problem is to decide whether in formulating the right of retirement of a member of the police force after twenty-five years of service, the Legislature chose language similar to the language used in the old Charter in order that the new statute might receive the same construction that had been placed upon the Charter section in People ex rel. Fitzpatrick v. Greene (supra), or made some change in the language of the Charter provision in order to indicate that it was adopting a different rule.

This court, like the Appellate Division, has concluded that if the Legislature had intended to change the rule it would have employed plainer language. The court finds in the striking similarity of the language used in section B18-4.0, subdivision c, to the language of the statute superseded by that section an unmistakable indication that the Legislature intended to leave the rule unchanged.

Judge Desmond and the writer of this opinion find more significance in the change of language. We find the statute instinct with a purpose to require that all retirement from the police force should be accomplished only by a resolution by the board of trustees. At the very beginning of the first subdivision of the section regulating retirement, the Legislature provided for action by the board. When it provided in the later subdivisions that an applicant, after long years of service, shall be retired on his own application, the Legislature, we think, addressed the command to the board of - trustees and intended that retirement should not be complete until the board had acted. We note that in amending the statute the Legislature eliminated the provision that an applicant must be retired “ provided there are no charges against him pending.” We do not believe that by such elimination the Legislaturé intended to give to a member entitled to apply for retirement an absolute right to immediate and self-executing severance from service ” upon a pension even though serious delinquency may have been previously revealed and the application for retirement may have been impelled by a desire to escape trial on charges either pending or imminent. We recognize, nonetheless, the force of the opposing considerations which the court now holds are decisive.

The order of the Appellate Division should be reversed, and that of the Special Term affirmed without costs in Matter of Keevan. The order should be affirmed, with costs, in Matter of Pierne and Matter of Harvey.

Loughran, Rippey, Lewis, Conway and Desmond, JJ., concur; Thacher, J., taking no part.

Ordered accordingly.