author: Conway, J. Desmond, J.

text:
    New York Post Corporation, Respondent, v. William J. Kelley et al., Constituting the New York State Labor Relations Board, Appellants. New York World-Telegram Corporation, Respondent, v. William J. Kelley et al., Constituting the New York State Labor Relations Board, Appellants. Hearst Consolidated Publications, Inc., Respondent, v. William J. Kelley et al., Constituting the New York State Labor Relations Board, Appellants. The New York Sun, Inc., Respondent, v. William J. Kelley et al., Constituting the New York State Labor Relations Board, Appellants.
    Argued October 3, 1946;
    decided January 17, 1947.

      William E. Grady, Jr., and Philip Feldblum for appellants.
    I. The only question properly before the court is whether the board has jurisdiction to act, that is, to hold hearings and make findings on the conflicting claims being asserted by respondent and the unions.in the representation proceedings pending before the board. (Metropolitan Life Ins. Co. v. New York State

      Labor Rel. Bd., 280 N. Y. 194; Wardrop Co. v. Fairfield Gardens, Inc., 237 App. Div. 605; Guardian Life Ins. Co. v. Graves, 268 App. Div. 809, 294 N. Y. 953; Great Atlantic & Pacific Tea Co. v. New York State Labor Rel. Bd., 176 Misc. 258, 261 App. Div. 900; Matter of Wallach’s, Inc., v. New York State Labor Rel. Bd., 253 App. Div. 371, 277 N. Y. 345; Cody v. New York State Labor Rel. Bd., 184 Misc. 150; Hanley v. New York State Labor Rel. Bd., 177 Misc. 973; Great Atlantic & Pacific Tea Co. v. Boland, 176 Misc. 258, 261 App. Div. 900; Richfield Oil Corp. v. City of Syracuse, 287 N. Y. 234.) II. The board has jurisdiction to determine whether the newsboys are employees or independent merchants. (Matter of Electrolux Corp.) 286 N. Y. 390; Matter of Morton, 284 N. Y. 167; National Labor Rel. Bd. v. Hearst Publications, 322 U. S. 111; Matter of Mounting & Finishing Co. v. McGoldrick, 294 N. Y. 104; Red Hook Cold Storage Co. v. Department of Labor, 295 N. Y. 1; Matter of Columbia University v. Herzog, 181 Misc. 903, 269 App. Div. 24, 295 N. Y. 605.) III. The board has jurisdiction to determine whether there is a dispute as to representation between unions affiliated with the same parent organization. (Gulf Oil Corp. v. Smallman, 270 App. Div. 129; Sachs Quality Furniture v. Hensley, 269 App. Div. 264; Great Atlantic & Pacific Tea Co. v. Boland, 176 Misc. 258.) IV. People v. Masiello (177 Misc. 608) below, is neither res judicata nor a controlling precedent. It does not preclude the Board from holding hearings. (Walker Memorial Baptist Church v. Saunders, 285 N. Y. 462; Boston & Maine Railroad v. Delaware & Hudson Co., 268 N. Y. 382; Myers v. Bethlehem Corp., 303 U. S. 41; Holland Laundry, Inc., v. Simon, 264 App. Div. 860; Rudd v. Cornell, 171 N. Y. 114; Allen Bradley Co. v. Union, 325 U. S. 797; Bakery Drivers Local v. Wohl, 315 U. 8. 769; Bernstein v. Madison Baking Co., 266 App. Div. 839, 291 N. Y. 827; People v. Gassman, 182 Misc. 878, 268 App. Div. 377, 295 N. Y. 254.)

      Edward S. Greenbaum, Benjamin Kaplan/ and Harold H. Stern for New York Post Corpl)TaH'on, rrespondent.
    I. The jurisdiction of the court to entertain this action for declaratory judgment undoubtedly exists and the complaint undoubtedly states a cause of action. (Dun & Bradstreet, Inc., v. City of New York, 168 Misc. 215, 276 N. Y. 198; Bank of Yorktown v.
      Boland, 280 N. Y. 673, 284 N. Y. 749; New York Operators v. State Liquor Authority, 285 N. Y. 272; Richfield Oil Corp. v. City of Syracuse, 287 N. Y. 234; Rockland Light & Power Co. v. City of New York, 289 N. Y. 45; Aerated Products Co. v. Godfrey, 290 N. Y. 92; Allegheny Ludlum Steel Corp. v. Kelley, 184 Misc. 47, 269 App. Div. 805, 295 N. Y. 607; Andersen v. City of New York, 295 N. Y. 782; Booth v. City of New York, 268 App. Div. 502, 296 N. Y. 573; All American Bus Lines v. City of New York, 268 App. Div. 508, 296 N. Y. 571; White v. Boland, 254 App. Div. 356; Kirn v. Noyes, 262 App. Div. 581; Rubel Corp. v. Boland, 177 Misc. 638; People v. O’Brien, 209 N. Y. 366; Lipkind v. Ward, 256 App. Div. 74.) II. The Supreme Court rightly exercised its “ undoubted ” jurisdiction in entertaining the present action. (Rubel Corp. v. Boland, 177 Misc. 638; Bank of Yorktown v. Boland, 280 N. Y. 673; Metropolitan Life Ins. Co. v. Labor Relations Board, 280 N. Y. 194; Allegheny Ludlum Steel Corp. v. Kelley, 184 Misc. 47, 269 App. Div, 805, 295 N. Y. 607; Great Atlantic & Pacific Tea Co. v. Boland, 176 Misc. 258, 261 App. Div. 900; Hanley v. Boland, 177 Misc. 973; Cody v. Kelley, 184 Misc. 150; Dun & Bradstreet, Inc., v. City of New York, 276 N. Y. 198; Andersen v. City of New York, 295 N. Y. 782; Pagano, Inc., v. City of New York, 295 N. Y. 784; Aerated Prodxicts Co. v. Godfrey, 290 N. Y. 92.) III. Any discretion involved was properly exercised by the Supreme Court herein. But even if an element of discretion still exists, no sound reason is advanced why the courts’ action below should be disturbed. (Woollard v. Schaffer Stores Co., 272 N. Y. 304; Kalman v. Shubert, 270 N. Y. 375.) IV. The motion for summary judgment in favor of the board was properly denied. (Matter of Houston Chronicle Pub. Co., 28 N. L. R. B. 1043; Columbia River Co. v. Hinton, 315 U. S. 143; National Labor Rel. Bd. v. Jones & Laughlin Steel Corp., 301 U. S. 1.)

      Charles B. Brophy for New York World-Telegram Corporatian, respondent.
    I. Special Term correctly held that the complaint states facts sufficient to constitute a cause of action for declaratory judgment. (Public National Bank v. National City Bank, 261 N. Y. 316; Nelson v. Hirsch, 264 N. Y. 316; Los Angeles Investment Securities Corp. v. Joslyn, 282 N. Y. 438;
      Braunworth v. Braunworth, 285 N. Y. 151.) II. Defendants ’ motion for judgment on the pleadings was properly- denied. (Pletman v. Goldsoll, 264 App. Div. 393; Gardner v. Shepard Niles Crane & Hoist Corp., 268 App. Div. 561; American Fire Prevention Bureau, Inc., v. Rockwood Sprinkler Co., 244 App. Div. 423; Equitable Life Assurance Society of United States v. Volk, 256 App. Div. 348; Hun 7 Bradstreet, Inc., v. City of New York, 276 N. Y. 198; Warshawsky v. Ward, 233 App. Div. 390; Schechner v. Holmes Electric Protective Co., 254 App. Div. 483; Seabald v. Gross, 162 Misc. 242.) III. An action for a declaratory judgment will lie to test the jurisdiction of the board to act. (Bank of Yorktown v. Boland, 280 N. Y. 673; Allegheny Ludlum Steel Corp. v. Kelley, 184 Misc. 47, 269 App. Div. 805, 295 N. Y. 607; Metropolitan Life Insurance Co. v. New York State Labor Rel. Bd., 280 N. Y. 194; Hun & Bradstreet, Inc., v. City of New York, 276 N. Y. 198; Matter of Columbia University v. Herzog, 269 App. Div. 24, 295 N. Y. 605; McBride’s Theatre Ticket Offices v. Moss, 183 Misc. 14; Acorn Employment Service, Inc., v. Moss, 292 N. Y. 147; Bockland Light & Power Co. v. City of New York, 289 N. Y. 45.) IV. As there are issues of fact raised by the pleadings, defendants’ motion for summary judgment under rule 113 of the Buies of Civil Practice was properly denied. (Peoples National Bank & Trust Co. v. County of Westchester, 261 N. Y. 342; Brawer v. Mendelson Bros. Factors, Inc., 262 N. Y, 53; Piedmont Hotel Co. v. Nettleton Co., 263 N. Y. 25; Miorin v. Miorin, 257 App. Div. 556; Neubeck v. McDonald, 128 Misc. 768; Baumann v. Baumann, 222 App. Div. 460; McBride’s Theatre Ticket Offices v. Moss, 183 Misc. 14; Rockland Light & Power Co. v. City of New York, 289 N. Y. 45.)

      John B. Siefken and Thomas A. Brennan for Hearst' Consolidated Publications, Inc., respondent.
    I. Plaintiff’s action for a declaratory judgment will lie. Its purpose is to challenge the jurisdiction of appellants to act at all. (Matter of Columbia University v. Herzog, 269 App. Div, 24, 295 N. Y. 605; People v. Gassman, 295 N. Y. 254; Shannahan v. Empire Engineering Corp., 204 N. Y. 543; Cooper-Snell Co. v. State of New York, 230 N. Y. 249; Matter of Sherrill v. O’Brien, 188 N. Y. 185; City of New York v. Maltbie, 274 N. Y. 90.) II. An action for a declaratory judgment will lie where issues of fact must be determined. (Loesch v. Manhattan Life Ins. Co., 128 Misc. 232, 220 App. Div. 828; Town Board of Greece v. Murray, 130 Misc. 55; Chase National Bank v. Raleigh Estates, Inc., 266 App. Div. 864; Morecroft v. Taylor, 225 App. Div. 562; Aetna Life Ins. Co. v. Haworth, 300 U. S. 227, 300 U. S. 687; Rockland Light & Power Co. v. City of New York, 289 N. Y. 45.) III. A justiciable controversy exists. (Zone Oil Trucking Corp. v. New York State Labor Rel. Bd., 27 N. Y. S. 2d 61; Post v. Metropolitan Casualty Ins. Co., 227 App. Div. 156, 254 N. Y. 541; Guardian Life Ins. Co. v. Graves, 268 App. Div. 809, 294 N. Y. 953; Rubel Corp. v. Boland, 177 Misc. 638; Bank of Yorktown v. Boland, 280 N. Y. 673.) IV. Respondent is not required to adopt the provisions of section 707 of the Labor Law. (151-163 West 26 St. v. Brosnan, Inc., 183 Misc. 804; Bun & Bradstreet, Inc., v. City of New York, 276 N. Y. 198; Woollard v. Schaffer Stores Co., 272 N. Y. 304; Kirn v. Noyes, 262 App. Div. 581; Booth v. City of New York, 268 App. Div. 502, 296 N. Y. 573; Delaware, L. & W. R. R. Co. v. Slocum, 269 App. Div. 467; Socony-Vacuum Oil Co., Inc., v. City of New York, 247 App. Div. 163; Rubel Corp. v. Boland, 177 Misc. 638; Bank of Yorktown v. Boland, 280 N. Y. 673.) V. People v. Masiello (177 Misc. 608) determined that licensed New York City newsdealers are not employees. The court may consider that decision. (Matter of New York State Labor Rel. Bd. v. Holland Laundry, 294 N. Y. 480; Moore v. City of Albany, 98 N. Y. 396; Bridenbaker v. Kissell, 131 Misc. 534, 226 App. Div. 850; Realty Revenue Corp. v. Wilson, 182 Misc. 552; People v. Gassman, 182 Misc. 878, 268 App. Div. 377, 295 N. Y. 254.) VI. The trial court has jurisdiction of this action which is a proper one for the exercise of judicial discretion. (Woollard v. Schaffer Stores Co,, 272 N. Y. 304; James v. Alderton Dock Yards, 256 N. Y. 298; Neubeck v. McDonald, 128 Misc. 768; Baumann v. Baumann, 222 App. Div. 460; Sterling Bag Co., Inc., v. City of New York, 168 Misc. 179, 256 App. Div. 645, 281 N. Y. 269.)

      Harry H. Van Aken and William R. Loner gam for The New York Sun, Inc., respondent.
    I. Special Term correctly held that the complaint states facts sufficient to constitute a cause of action for declaratory judgment. (Bank of Yorktown v. Boland, 280 N. Y. 673; Allegheny Ludlum Steel Corp. v. Kelley, 184 Misc. 47, 269 App. Div. 805, 295 N. Y. 607; Rubel Corporation v. Boland, 177 Misc. 638; Dun & Bradstreet, Inc., v. City of New York, 276 N. Y. 198; Dun & Bradstreet, Inc., v. City of New York, 168 Misc. 215; Booths. City of New York, 268 App. Div. 502, 296 N. Y. 573; All American Bus Lines v. City of New York, 268 App. Div. 508, 296 N. Y. 571; Matter of Columbia University v. Herzog, 269 App. Div. 24, 295 N. Y. 605; McBride’s Theatre Ticket Offices v. Moss, 183 Misc. 14; New York Operators v. State Liquor Authority, 285 N. Y. 272.) II. Since the complaint states facts sufficient to constitute a cause of action and the answer of the defendants contains denials of material facts alleged in the complaint, Special Term properly denied defendants’ motion for judgment on the pleadings, under section 476 of the Civil Practice Act and rule 112 of the Rules of Civil Practice. (Warshawsky v. Ward, 233. App. Div. 390; Hirsh v. Central Hanover Bank & Trust Co., 251 App. Div. 24; Schechner v. Holmes Electric Protective Co., 254 App. Div. 483; Kidder v. Hesselman, 119 Misc. 410.) III. Since there are issues of fact raised by the pleadings, the court at Special Term correctly held that the defendants’ motion for summary judgment under rule 113 of the Rules of Civil Practice must also be denied. (Peoples National Bank & Trust Co. v. County of Westchester, 261 N. Y. 342; Brawer v. Mendelson Bros. Factors, Inc., 262 N. Y. 53; Piedmont Hotel Co. v. Nettleton Co., 263 N. Y. 25; Miorin v. Miorin, 257 App. Div. 556; Dun & Bradstreet, Inc., v. City of New York, 168 Misc. 215; Rockland Light & Power Co. v. City of New York, 289 N. Y. 45; Chase National Bank v. Raleigh Estates, Inc., 266 App, Div. 864; Aetna Life Ins. Co. v. Haworth, 300 U. S. 227; Neubeck v. McDonald, 128 Misc. 768; Baumann v. Baumann, 222 App. Div. 460.)
   Conway, J.

In the first above-entitled action, plaintiff, a newspaper publisher, seeks a declaratory judgment that the provisions of the New York State Labor Relations Act, hereinafter referred to as N. Y. S. L. R. Act, do not apply to it; that certain newsdealers, licensed by the City of New York, are not its employees; that two organizations, viz.: “ Newsdealers Federal Labor Union, Local 22,371 ” and New York Newsboys Union, Local 471 ”, each of which claims to be the representative of and to be entitled to be designated as the bargaining agent of the licensed newsdealers, are affiliated with the same parent organization, the American Federation of Labor; that, since there is such controversy between those locals of the same parent body and. since the newsdealers are not its employees, the New York State Labor Eelations Board, hereinafter referred to as the Board, has no jurisdiction to make any investigation or to certify a collective bargaining representative.

The complaint alleges in brief that the plaintiff is the publisher of the daily newspaper known as the New Yorlt Post; that the Board has been organized and is existing pursuant to the provisions of section 702 of the Labor Law of our State; that there are upwards of one thousand persons engaged in business in the city of New York as dealers in newspapers, magazines and other articles of merchandise who conduct their businesses on city property pursuant to licenses issued by the Department of Licenses of the City of New York; that those newsdealers are independent retail merchants, many of whom purchase copies of plaintiff’s newspapers from plaintiff and .resell them to the public at a profit; that none of said licensed dealers receives any wages or salary from the plaintiff and that all of them are free to, and do, fix their own hours of labor and are free to determine what newspapers, magazines or other articles of merchandise they wish to sell, without any restriction by the plaintiff; that the dealers conduct their businesses as independent retail merchants, subject only to such restrictions as may be imposed upon them by the city; that none of such dealers is an employee of the plaintiff.

The complaint then alleges that, in an action instituted by the People of the State of New York through the Attorney-General in 1941 against Joseph Masiello, individually and as president of Newsdealers Federal Labor Union, Local No. 22,371, et al., as defendants, pursuant to article 22 of the General Business Law, an injunction was issued by the Supreme Court of the State of New York enjoining the defendants therein named from picketing the- places of business of newsdealers engaged in selling the plaintiff’s newspaper and certain other newspapers published in the city of New York, from coercing the newsdealers to refrain from purchasing such newspapers, from distributing circulars representing that the defendants were engaged in a labor dispute, and from otherwise combining and acting in concert to impair, prevent and destroy free competition in the sale and distribution of said newspapers. The complaint then further alleges that the temporary injunction prayed for was granted and that it was then determined that none of the said licensed newsdealers was an employee of the plaintiff herein or of the other newspapers, that the licensed newsdealers were retail merchants, that the controversy between the plaintiff and the other newspapers on the one hand and the licensed newsdealers on the other was one between vendors and vendees, involving no employer-employee relationship and that there was no labor dispute ” within the meaning of section 876-a of the Civil Practice Act (People v. Masiello, 177 Misc. 608).

It then alleges that there were certain proceedings had before the National Labor Relations Board, Second Región, hereinafter referred to as the National Board, by “ New York Newsboys Union, Local 471 ”, in which it was claimed among other things that the plaintiff had refused to recognize that local as the exclusive bargaining agent of certain licensed newsdealers; that thereafter the petition in that proceeding was withdrawn without prejudice following an informal conference at the office of the National Board at which representatives of plaintiff, other newspapers, and Local 471 were present; that thereafter a petition was filed with the State Board by Local 471 requesting that it be certified as the representative of certain licensed newsboys and newsdealers for the purpose of collective bargaining pursuant to the provisions of section 705 of the N. Y. S. L. E. Act; that thereafter pursuant to request of the Board plaintiff attended at an informal conference together with representatives of Local 471; that the attention of the Board was called to the decision in People v. Masiello (supra) and the fact that it had there been held that the licensed newsdealers were independent merchants and not employees of the plaintiff, but that the Board decided to entertain an amended petition of Local 471 .wherein it was alleged that the aforementioned licensed newsdealers were employees of plaintiff, that there were approximately fourteen hundred of them, and that a question or controversy had arisen concerning the representation of employees in an alleged bargaining unit referred to therein; that the plaintiff, designated therein as “ the employer ”, had refused to recognize Local 471 as the exclusive bargaining agent of said licensed newsdealers and had refused to bargain collectively with the local union; that thereafter the Board served upon the plaintiff a notice of hearing pursuant to section 705, subdivision 3, of the N. Y. S. L. R. Act and the hearing was finally set down for a particular day; that Newsdealers Federal Labor Union, Local 22,371 (the local involved in People v. Masiello, supra) has intervened in the proceeding before the Board and claims that it is the representative of and should be designated as the bargaining agent of the licensed newsdealers above mentioned; that both local unions are affiliated with the same parent labor organization, namely the American Federation of Labor; that if said licensed newsdealers are held to be employees of the plaintiff so that they fall within the purview of the statute, constitutional rights of the plaintiff will be affected under both the New York State and United States Constitutions.

The complaints in the other three actions are substantially the same.

The Board answered in each action and then moved under section 476 of the Civil Practice Act and rule 112 of the Rules of Civil Practice for orders granting judgment that the Board had jurisdiction or dismissing the complaints on the ground that upon the face of the pleadings the defendants were entitled to the relief requested in their answers and upon the further ground that the complaints did not state facts sufficient to constitute causes of action. The relief asked for in the answers was that judgment be made and entered adjudging and decreeing that the complaints be dismissed or in the alternative that defendants have judgment against the plaintiffs. The defendants further moved under rule 113 of the Rules of Civil Practice for orders dismissing the complaints on the ground that the actions had no merit. The motions were denied at Special Term and, upon affirmance, the Appellate Division certified certain questions of law for review by us.

We think the complaints state facts sufficient to constitute causes of action for declaratory judgments. Jurisdiction over such actions has been confided to the Supreme Court, which is our highest court of general and original jurisdiction, and the field in which such actions may be brought is very broad. (Civ. Prac. Act, § 473; Rules of Civil Practice, rule 212; Bank of Yorktown v. Boland, 280 N. Y. 673; New York Operators v. State Liquor Authority, 285 N. Y. 272; Acorn Employment Service, Inc., v. Moss, 292 N. Y. 147; Rockland Light & Power Co. v. City of New York, 289 N. Y. 45; Bun & Bradstreet, Inc., v. City of New York, 276 N. Y. 198; All American Bus Lines, Inc., v. City of New York, 296 N. Y. 571; Booth v. City of New York, 296 N. Y. 573; Stampers Arrival of Buyers, Inc., v. City of New York, 296 N. Y. 574; Saltser & Weinsier, Inc., v. McGoldrick, 295 N. Y. 499; Quaker Oats Co. v. City of New York, 295 N, Y. 527, 533.) There was no disagreement below as to the fact that the complaints stated causes of action. The dissenting Justice in the Appellate Division conceded that, but was of opinion that the discretion exercisable by the Supreme Court should have been exercised in favor of the Board. Where no mandatory statute is applicable, the Supreme Court determines its own practice. (Judiciary Law, § 82.) Rule 212 of the Rules of Civil Practice reads as follows: “Rule 212. Jurisdiction discretionary. If, in the opinion of the court, the parties should be left to relief by existing forms of actions, or for other reasons, it may decline to pronounce a declaratory judgment, stating the grounds on which its discretion is so exercised.” This court is one of review, and we may not reverse the orders because of the exercise of the discretion committed to the Supreme Court through legislative provision unless we may say that there was an abuse of discretion as a matter of law. For an administrative agency which answered without making any request to the Supreme Court under rule 212 to decline to take jurisdiction and then boldly moved for judgment on the pleadings and under rule 113, there is hardly room for the argument that the exercise of discretion to pass upon the motions so made and then to deny them was error as a matter of law. The following, from Rockland Light & Power Co. v. City of New York (Lehman, Ch, J.), supra, p. 50, is apposite here: “ The sufficiency of the complaint has been sustained as a pleading. The order accomplishes nothing more. The order must be affirmed, regardless of the merits of the controversy pr the scope of the plaintiff’s rights, if we conclude that the complaint in an action for declaratory judgment should- not be dismissed as 1 matter of law ’ where the facts alleged show the existence of a controversy concerning ‘ rights and legal relations ’ and where it appears that the discretionary and extraordinary powers of the court have been invoked for a sufficient reason.”

Upon the controverted facts presented on those portions of the motions which were brought under the Rules of Civil Practice, rule 113, there can be proper determinations only after trial.

In each of the above-entitled actions the order should be affirmed, with costs, and the questions certified answered in the negative.

Desmond, J.

(dissenting). The plaintiffs are newspaper publishers in New York,City.

Local 471 of the Newsboys Union filed with appellant State Labor Relations Board a petition under section 705 of the Labor Law, alleging therein that plaintiffs had refused to recognize petitioner as the exclusive bargaining agent of certain newsboys and newsdealers. The union demanded that it be certified by the Board as such exclusive agent. Following its usual practice, the Board thereupon held, at its office, a preliminary conference to which plaintiffs were invited and at which their representatives attended. At that conference (a sort of pre-trial ” meeting) plaintiffs’ representatives stated to the Board that the newsboys or newsdealers, whose chosen agent Local 471 claimed to be, were not employees of any of the plaintiffs, but were independent merchants. This the union denied. The Board took no testimony and made no determination of any kind but gave notice of a formal public hearing (see Labor Law, § 705, subd. 3). Meanwhile another union (Local 22,371 of the Newsdealers Federal Labor Union) intervened in the proceeding pending before the Board, insisting that it, and not' Local 471 of the other union, was the chosen bargaining agent of the newsboys or newsdealers. This entrance into the proceedings, of Local 22,371, was the occasion for plaintiffs asserting another objection to the Board’s taking jurisdiction. Plaintiffs told the Board that the rival locals were both affiliates of the American Federation of Labor (controversies between such associated unions are removed from the Board’s jurisdiction by subdivision 3 of section 705 of the Labor Law). Plaintiffs then requested the Board to adjourn the proposed public hearing until plaintiffs should have an opportunity to bring actions for declaratory judgments in the Supreme Court. The Board" did not order the adjournment and the present suits were brought. In their complaints, plaintiffs again take the position that the newsdealers or newsboys are no employees of theirs but are engaged in business for themselves. On that ground, and because, as plaintiffs say, the contending unions are of the same parentage, plaintiffs in these actions pray for judgments declaring that the Board has no jurisdiction in the premises, and enjoining the Board from doing anything further in the matter. (The Board, while taking the position that it has power at least to go ahead and investigate the facts as to employér-employee relationship and as to the affiliations of the local unions, has not taken any further steps in the case before it.)

The Board served answers in these declaratory judgment suits. It denied any knowledge or information sufficient to form a belief as to the truth of the assertions made by plaintiffs that the union members are entrepreneurs, not employees, and that the two unions are both included ip the American Federation of Labor. Both these questions, alleged the Board in separate defenses, are “ for the Board alone to determine in the first instance.” Elsewhere in the answers the Board pointed out that it has taken no testimony and made no determination in the pending Board proceeding, that plaintiffs are not aggrieved at this time, that they have not exhausted the administrative remedies given by the Labor Law and that there is no justiciable controversy between plaintiffs and the Board. The Board prayed for a dismissal of the complaint or for judgments in its favor against plaintiffs.

After service of the pleadings, defendant Board moved in each of the four above-entitled actions, for judgment on the pleadings, and for summary' judgment. All motions were denied by the courts below. (For reasons to be stated at the end of this opinion, we will deal herein with the motions for judgments on the pleadings only.)

Stated in simplest terms, the position of plaintiffs is that they are entitled to maintain these actions because, as they contend, the Board is attempting to act without jurisdiction — that the Labor Relations Act itself forbids the Board to act because the newsdealers or newsboys are not “ employees ” at all, and because the two locals are sister unions. Put in equally simple terms, the Board’s stand is this: it says that, whatever the facts may turn out to be as to employer-employee relationship or as to common parentage of the two unions, those are the very questions which the statute requires the Board itself to decide. So far the Board has not decided them. Jurisdiction to hear and pass on those questions has been expressly given to it by the Legislature, says the Board. The courts, it says, should not oust the Board of that jurisdiction, or pre-empt the place assigned to the Board by statute.

Plaintiffs cite many precedents for the propriety of the use of a declaratory judgment suit to stay the hand of an administrative body when it attempts to act without jurisdiction. But those are all cases where a constitutional question is involved or the legality or meaning of a statute is in question and no question of fact is involved ” (New York Operators v. State Liquor Authority, 285 N. Y. 272, 276, citing Dun & Bradstreet, Inc., v. City of New York, 276 N. Y. 198, 206). Typical are the tax and licensing cases, such as New York Operators v. State Liquor Authority (supra); Dun & Bradstreet, Inc., v. City of New York, supra; Aerated Products Co. v. Godfrey (263 App. Div. 685, revd. on other grounds, 290 N. Y. 92); and Booth v. City of New York (296 N. Y. 573.) In such situations where it is not the facts which are in dispute but the meaning or legality of the statute under which the administrative body is purporting to deal with the citizen, then the, courts, doing the traditional work of courts, will entertain declaratory judgment suits to pass on the question of law as to the statute’s meaning or validity. Appellant Board was itself held subject to that kind of judicial control in Bank of Yorktown v. Boland (280 N. Y. 673) and Allegheny Ludlum Steel Corp. v. Kelley (295 N. Y. 607). But in the Yorktown and Allegheny cases the courts did not take over, as they are asked to do in the present cases, the arbitrament of factual questions which the Legislature has seen fit to submit to the Labor Relations Board. Of course, the presence of issues of fact does not in itself require the dismissal of a suit for declaratory judgment (see rule 213 of the Rules of Civil Practice; Rockland Light & Power Co. v. City of New York, 289 N. Y. 45, 52). But where those questions of fact are cognizable by a tribunal other than the court and there is no compelling reason for ousting that tribunal of jurisdiction, then there is neither need nor right of resort to the declaratory judgment action.

Whether or not the administrative process is “ our generation’s answer to the inadequacy of the judicial and the legislative processes ” (Landis on The Administrative Process, p. 46), the use thereof by our State Legislature, as an instrument of public control, is firmly established. No constitutional or other impediment stands in the way of the lawmakers when they use such processes to effectuate public policies declared by them. Nothing in the fundamental law prevents the Legislature from leaving to selected instrumentalities * * * the determination of facts to which the policy as declared by the legislature is to apply ” (Chief Justice Hughes in the Schechter case, 295 U. S. 495, 530). In 1937, with the passage of a Labor Relations Act, New York entered into a wholly new State activity: the investigation and punishment of unfair labor practices ”, including the enforcement of the right of employees to collective bargaining through selected agents. Involved in that new State activity was the certification of such bargaining agents, by the Labor Relations Board. (No one, up to now, has ever suggested that any .tribunal other than the Board has this power and duty, so I do not see what turns on the omission of the unnecessary word “ exclusive ” from sections 705 and 706 of the Labor Law). In making such certifications the Board must, if a dispute arises, decide which one (if any), of competitor unions has in fact been selected by a group of employees as their bargainer. In plainest language the Legislature, in section 705 of the Labor Law, directed the Board to settle such contests by holding elections, or by other appropriate methods. Of course, this was all quite new. Just as this State had long ago changed the status of party nominating conventions as private fights ”, and brought them under strict regulation by public bodies, so, for sufficient reasons, this State, by enacting the Labor Relations Law, took upon itself the task of presiding over the selection of bargaining agents and of certifying the results thereof. In so doing, the Labor Relations Board is no one’s antagonist or champion. It is an umpire, keeping and announcing the score. Since the Board’s function in' certification proceedings is merely that of presiding over a- contest in which it takes no position, the State Labor- Relations Act, like its Federal prototype, provides no court review of such certification (see Matter of Wattach’s, Inc., v. Boland, 277 N. Y. 345; American Federation of Labor v. National Labor Relations Board, 308 U. S. 401; also Switchmen’s Union v. National Mediation Board, 320 U. S. 297). To the argument that the lack of such a direct judicial review of a certification may lead to hardships and to industrial conflict, the answer is that given by the dissenting justice in the Appellate Division in the present case: that such a criticism of the Act should be addressed to the Legislature, not to the courts (see, likewise, Justice Stone in American Federation of Labor v. National Labor Relations Board, supra, 308 U. S. 401).

Of course, the Board certifies bargaining agents for ‘1 employees ’ ’ only. When there is a preliminary dispute as to whether those who seek certification are or are not employees of the putative employer, who is to decide that question? Who decides the same question when in a hearing on a workmen’s compensation or unemployment insurance claim, issue is joined as to whether or not the claimant is or was in fact an employee ? Is it conceivable that all or any of thousands of hearings held before workmen’s compensation or unemployment insurance referees would be held up so that an alleged employer might take to the Supreme Court, in a declaratory judgment suit, his assertion that the claimant was no employee of his? Those questions answer themselves. The Legislature, in delegating to its creatures, the administrative tribunals, the trial of certain claims or petitions by “ employees ”, empowered those tribunals to decide simple questions of fact as to who are employees.” In acting under such grants of power, the boards usurp no constitutional or traditional office of the courts. Any questions of law are still for- the courts. As Justice Brandéis wrote in 1936: The supremacy of law demands that there shall be opportunity to have some court decide whether an erroneous rule of law was applied; and whether the proceeding in which facts were adjudicated was conducted regularly ” (concurring opinion in St. Joseph Stock Yards Co. v. United States, 298 U. S. 38, 84). That requirement, however, does not mean that every single determination of a fact-finding agency must, for validity, be subject to an immediate court review. Much less does it mean that a party who asserts that the facts of his case remove it from the Board’s jurisdiction may insist that the determination and announcement of those facts be made in 'the first instance by a court, rather than by the Board authorized by the Legislature to make that very ruling. Indeed, in the present case no necessity appears, at least presently, for such a resort to the courts. If it be the incontestable fact, as plaintiffs tell us it is, that the members of these local unions were never employed by plaintiffs, what basis is there for a fear that the Board will, for some unaccountable reason, hold the other way? Even if the Board should so hold, against all the evidence, plaintiffs will not thereby be put in jeopardy. Any certification of' one or the other union will be an interlocutory determination only (see Matter of Wallach’s, Inc., v. Boland, supra) with no immediate impact on plaintiffs. Such a certification will settle the rivalry between the locals but it will not order plaintiffs to do, or to refrain from doing, anything. If, thereafter the Board, in a later proceeding (see § 706) should go further and make an order finding plaintiffs guilty of unfair labor practices for refusal to bargain with the certified union, then, under the statute (Labor Law, § 707, subd. 4), plaintiffs may appeal to the courts (see 5 Benjamin on Administrative Adjudication, pp. 161, 162). That is the point in the proceeding at which, as the Legislature plainly intended, the aggrieved employer (or alleged employer) will have, if he needs it, his day in a court of law. Taking that plainly marked path did not unduly prejudice the employer in, for instance, Matter of Columbia University v. Herzog (295 N. Y. 605).

“ There should be mentioned, finally, the doctrine that in various circumstances a party must exhaust available administrative remedies before resorting to the courts, and the related doctrine that in various circumstances a statutory provision for one method of judicial review will exclude resort to other judicial proceedings ” (l Benjamin on Administrative Adjudication, pp. 365-366, and cases cited in footnotes 17 and 18).

The language of section 473 of the Civil Practice Act, which sets up declaratory judgment procedures in the State, is broad and comprehensive. But, while “ no limitation has been placed or attempted to be placed upon its use ” (James v. Alderton Dock Yards, 256 N. Y. 298, 305) the power to grant declaratory judgments is not unlimited * * * nor are its bounds unmarked ” (New York Operators v. State Liquor Authority, supra, 285 N. Y. at p. 275). Implicit in the statute and the public policy which it expresses ” are limitations upon the exercise of the power with respect to the nature of the controversy ” (Neto York Operators case, supra, 285 N. Y. at p. 276). As Justice McLaughlin observed at Special Term in the New York Operators case (see 173 Misc. 540, 541): If, every time a party felt so disposed, he could come into this court and have his relations with the law-enfbrcing authorities passed upon, then the Supreme Court would be, in effect, running the executive and administrative departments of government as well as usurping the powers of all the law-enforcing agencies ” (see, also, Long Island Lighting Co. v. Maltbie, 262 App. Div. 376, 378, affd. 287 N. Y. 691). That is strong language, but it fits the present cases. Plaintiffs say that the Labor Board may decide, wrongly, that the newsdealers are plaintiffs’ employees. Such a declaration by the Board, say plaintiffs, will be embarrassing to them, may stir up strife or strikes, will put plaintiffs in a false position before the public. But in all this plaintiffs are saying no more than the Board may give the wrong answer to a question of fact, may declare some union to be the bargaining agent of supposed employees who in truth are no employees at all (see Long Island Lighting Co. v. Maltbie, supra). “ Jurisdiction is authority to decide the case either way ” (The Fair v. Kohler Die Co., 228 U. S. 22, 25; see People v. Sturtevant, 9 N. Y. 263). The risk that the ruling of a qualified tribunal may be a wrong one is a risk every citizen must run (see Stoll v. Gottlieb, 305 U. S. 165, 171). . Here that risk is not one of grave or irreparable injury. Plaintiffs are not in the plight of the New York Foreign Trade Zone Operators (285 N. Y. 272) who, as against the Liquor Board’s assertion of authority over them, had no remedy except to sit back, refuse to take out a license and then defend a criminal prosecution or injunction suit wThen brought. Those essentially negative remedies were not, we held, adequate protection for the Foreign Trade Zone Operators. Entirely different is the position of plaintiffs who, when and if the Board proceeds directly against them, will have an immediate right of recourse to the courts under section 707 of the Labor Law with no danger of criminal prosecution, tax levy or penalty enforcement, meanwhile. The present suits are, therefore, not within the purview of the declaratory judgment statute. "Whether we say that the entertaining of these suits was legal error, or that the refusal of the courts to dismiss them was an abuse of discretion, the same result follows. The complaints on their face show the absence of any case for declaratory judgment. Defendant Board was entitled to have the suits dismissed on motion.

Respondents argue that, by moving for judgment on the pleadings, defendant Board admitted the allegations of the complaint that the union members were independent businessmen and that the rival unions were both affiliated with the American Federation of Labor. “If the defendant moves, he admits every material fact set out in the complaint ® (Emanuel v. Walter, 138 App. Div. 818, 819.) But such a constructive admission does not include every statement found in a complaint. What has been said in preceding paragraphs hereof establishes, we think, that the complaint’s averments that the newsdealers were not employees and that the unions were both members of the same Federation, were not material to any litigable controversy between plaintiffs and the State Labor Relations Board. The Board could not, by any kind of action or proceeding, be forced to carry on any such dispute with plaintiffs, in another forum. Plaintiffs, pleading their own unproven version of the facts as to these two mooted matters, could not put the Board to an admission or a denial thereof. The Board could, as it did, deny that it knew what the true facts were, and insist that whatever the facts were, the Board itself w%s the State agency commissioned by the Legislature to perform the judicial or quasi-judicial act of determining those facts. Plaintiffs say that the Board is frequently cast in the role of adversary to employers or alleged employers. So it is, where the Legislature has commanded it to play such a role. But not in representation proceedings, where the Board is the merest umpire or stakeholder.

Furthermore, plaintiffs have failed to join either of the unions, or any of the individual newsboys or newsdealers, as defendants. Plaintiffs say, and the courts below held, that this was at worst a mere defect of parties defendant, subject to correction but not requiring a dismissal of the complaint (see Civ. Prac. Act, § 193, and Rules Civ. Prac., rule 102). Actually, it is a failure to sue any party between whom and plaintiffs there exists a justiciable controversy (see Manhattan Storage & Warehouse Co. v. Movers Assn., 289 N. Y. 82; Wood v. City of Salamanca, 289 N. Y. 279; Varrichio v. Varrichio, 269 App. Div. 678, 679). Ao practical effect would follow from judgments in favor of plaintiffs. The unions, much less their members, would not be bound thereby. We need not decide whether the absence of the unions as parties would in itself be sufficient ground for dismissal. It at least strengthens the position of the Board that the latter may not be forced, in these actions, to fight out with plaintiffs, "in court, the very questions that should be fought out before the Board itself, as a fact-finding tribunal.

Plaintiffs argue that, at least as to the question of whether the disputant unions are or are not sister organizations, the Board is barred by the statute itself (Labor Law, § 705, subd. 3) from all “ authority to investigate any question or controversy ” between affiliates. Therefore, say plaintiffs, the Board may not even investigate to see whether such a relationship exists between the unions. That is the same as saying that an employer may stop a representation' proceeding merely by asserting the alleged affinity of unions whose competing claims are before the Board. We see no difference in kind between that question and the question of employer-employee relationship. The Board is, of course, of limited jurisdiction. But when the existence or not of that jurisdiction depends on an issue of fact, the Board itself, and no other tribunal, is the appointed trier of that fact. e

In all the above, we have been treating the question as to the status of the newsdealers as if it were a simple or single issue of pure fact, with no complications or complexes of fact, no room for conflicting inferences. It may turn out to be something quite different. Such seemingly simple problems as whether a transaction was or was not a sale, and whether a certain place was or was not a factory, turned out to be matters of judgment for experienced administrators (Matter of Mounting & Finishing Co. v. McGoldrick, 294 N. Y. 104; ReK Rooh Cold Storage Co. v. Department of Labor, 295 N. Y. 1). “ Of course,, statutory construction is the function of the courts, but where the question is one of specific application of a broad statutory term in a proceed ing in which the agency administering the statute must determine it initially, the reviewing court’s function is limited (Board v. Hearst Publications, 322 U. S. 111, 131). The administrative determination is to be accepted by the courts * if it has “ warrant in the record ” and a reasonable basis in law ’ ” (Matter of Mounting & Finishing Co. v. McGoldrick, supra, p. 108).

The working out of the inter-relation between administrative agencies and courts has been a slow and difficult one. It is unfortunate that the discussion, too often carried on in an atmosphere of contest, has generated so much heat. The courts and the boards are not rivals. ‘ ‘ * * # in construing a statute setting up an administrative agency and providing for judicial review of its action, court and agency are not to be regarded as wholly independent and unrelated instrumentalities of justice, each acting in the performance of its prescribed statutory duty without regard to the appropriate function of the other in securing the plainly indicated objects of the statute. Court and agency* are the means adopted to attain the prescribed end, and so far as their duties are defined by the words of the statute, those words should be construed so as to attain that end through co-ordinated action. Neither body should repeat in this day the mistake made by the courts of law when equity was struggling for recognition as an ameliorating system of justice; neither can rightly be regarded by the other as an alien intruder, to be tolerated if must be, but never to be encouraged or aided by the other in the attainment of the common aim ” (United States v. Morgan, 307 U. S. 183,191). The dismissal of this suit will not take from the Supreme Court any of its time-honored functions. A reversal here leaves the law of this State as it has been for a century (People v. Goodwin, 5 N. Y. 568): duly authorized boards make their own findings of fact, independently of the courts. Neither at common law (People ex rel. Haines v. Smith, 45 N. Y. 772, 776, 777) nor under any statute, past or present, have the courts in certiorari proceedings, or otherwise, ever had any duty or right of reviewing generally on the facts the decisions of Legislature-created administrative bodies. By defeating at the 1938 election the proposed new Judiciary Article of the State Constitution, the People of this State rejected a proposal that there should he court review of such decisions “ upon both the law and the facts ’ ’. It is the plaintiffs who are trying to upset all this by seeking first-instance determinations on the facts by the court, through the device of actions for declaratory judgments. Declaratory judgments did not exist in this State until authorized by the Legislature in 1920. There is no reason whatever for concluding that the Legislature, in setting up that new form of action, intended to allow its use in the way attempted here. Quite the contrary appears since, in the 1937 enactment of article 78 of the Civil Practice Act, the Legislature codified and restated the rules which prohibit examination by the courts of the weight of evidence, etc., in proceedings before quasi-judicial bodies (Civ. Prac. Act, § 1296).

We repeat: we are not saying that the Labor Relations Board may never be sued for a declaratory judgment (Bank of Yorktown v. Boland, supra; Allegheny Ludlum Steel Corp. v. Kelley, supra). If the Board strays outside its statutory bounds by taking any palpably arbitrary or unlawful action, then the protection of an affected party may, under special circumstances, require and justify the interposition of a court, even though there be lacking specific statutory provision for certiorari or other court review of, or stay of, the particular Board determination. Such a situation would be analogous to those above described (Booth v. City and similar cases cited, supra), where taxing bodies make levies against persons clearly not subject to the particular taxes. But no such stage has been reached in any procedures this Board has conducted against these plaintiffs. Defendant Board cannot be accused of making an arbitrary or capricious decision since it has made no decison at all, or even taken testimony. It cannot be held to have gone outside its statutory jurisdiction since the fact questions on which its jurisdiction depends are at issue, disputed and unresolved, before the Board itself. And surely the Board has not violated any constitutional right of plaintiffs, since the whole matter of designating bargaining agents is statutory, and no constitutional question is involved.

We have not treated at any length herein the denial by the courts below of the motions of defendant Board for summary judgments. Were defendant’s other motions for judgments on the pleadings granted, summary judgments would serve no purpose. Beside, the refusal to order a summary judgment is ordinarily a discretionary determination with which we do not interfere. Nor do we think that the courts below were bound to grant. declaratory judgments to defendant Board, Judgments in its favor dismissing the complaints would be sufficient for all purposes.

In each of the above-entitled actions the orders appealed from should be reversed, with costs in all courts. The first certified question should be answered in the affirmative, the other certified question not answered.

Lotjghran, Ch. J., Lewis, Thacher and Dye, JJ., concur with Conway, J.; Desmond, J., dissents in opinion in which Fuld, J., concurs.

Orders affirmed, etc.


source: Caselaw Access Project

author: Lewis, J.

license: Public Domain

text:
    In the Matter of the Construction of the Will of Harry Maybaum, Deceased. Nathaniel Kozinn, as Executor of Harry Maybaum, Deceased, Appellant. Mollie G. Maybaum et al., Respondents.
    Argued January 10, 1947;
    decided February 27, 1947.

      Maurice Kozinn for appellant.
    I. Paragraph “ Fifth ” of the will created a life estate with remainder over of any unconsumed portion thereof. (Eidt v. Eidt, 203 N. Y. 325; Matter of Buechner, 226 N. Y. 440; Matter of Hoffman, 201 N. Y. 247; Freeman v. Coit, 96 N. Y. 63; Matter of Ithaca Trust Co., 220 N. Y. 437; Smith v. Bell, 6 Pet. 68; Terry v. Wiggins, 47 N. Y. 512; Leggett v. Firth, 132 N. Y. 7; Seaivard v. Davis, 198 N. Y. 415.) II. If the court construes petitioner’s bequest to be an annuity then there is no right to capitalize the fund. (Matter of Proctor, 235 App. Div. 6.) III. There is a partial intestacy as to the unused portion of petitioner’s bequest. (Matter of Disney, 190 N. Y. 128; Matter of Tamargo, 220 N. Y. 225.)

      Bertram H. Siegeltuch for respondents.
    I. The portion of paragraph “ Fifth ” involved herein constitutes an absolute bequest of 60% of the net residue to petitioner. (Tillman v.
      Ogren, 227 N. Y. 495; Matter of Forde, 286 N. Y. 125; Matter of Davis, 166 Misc. 772.) II. If the bequest to petitioner be construed as an annuity, she has the absolute right to elect to take the principal fund designated by the testator in lieu thereof. (Matter of Cole, 219 N. Y. 435; Matter of Fischer, 261 App. Div. 252; Matter of Oakley, 142 Misc. 1; Matter of Adriance, 158 Misc. 857; Matter of Mitchell, 152 Misc. 228; Matter of Bertuch, 225 App. Div. 773.)
   Lewis, J.

Upon this appeal we are to construe the following paragraph of the will of Harry Maybaum who died March 1, 1944:

Fifth: All the rest, residue and remainder of my estate, both real, personal or mixed, I hereby direct my executor to divide the same after the payment of all administration expenses into three parts, one part consisting of sixty per cent (60%) which I hereby give and bequeath to my common-law wife, Mollie Goodheart, and direct that my executor pay the same to her in monthly payments of Thirty-five ($35.00) Dollars; the second part consisting of thirty per cent (30%) which I give and bequeath to my sister Fannie Rothstein; the third part consisting of ten per cent (10%) which I give and bequeath to the following children of my deceased brother David, share and share alike; Milton Maybaum, Sol Maybaum, Esther Maybaum, and Lillian Maybaum.

“ In the event Mollie Goodheart dies before her share of the sixty per cent (60%) is paid to her in monthly installments as aforesaid, then in that event the balance of her share remaining is to be paid to her son, Joseph Goodheart.”

The paragraph quoted above was construed by the Surrogate to be a bequest to the petitioner-respondent, Mollie Goodheart Maybaum, of an annuity of $35 a month to be paid during her lifetime from the income, or principal, or from both, of 60% of the residuary estate, and that any balance remaining at her death is to be paid to her son. Incidental to his ruling that she is not entitled to elect to receive the capital sum necessary to produce such an annuity, the Surrogate also decreed that, by reason of the fact that the petitioner’s son, Joseph Goodheart, had predeceased the testator, any portion of 60% of the residuary estate which remained after the death of the petitioner, shall be paid to the testator’s distributees as intestate property.

Upon appeal by the petitioner the Appellate Division modified on the law the Surrogate’s decree and ruled that the testator’s bequest to the petitioner was absolute, except as modified by the provision for monthly payments, and that the petitioner may elect to receive the capital sum necessary to produce the monthly payments which the testator directed should be paid to her. The basis for the Appellate Division’s ruling is indicated by the following statement in its memorandum of decision: “ Such a construction avoids the partial intestacy which would be caused by the lapse of the attempted gift to appellant’s son and is therefore, to be favored ”.

We reach a different conclusion. As we read the “ Fifth ” paragraph of the testator’s will it sets forth in unambiguous language a testamentary plan according to which he directed that his residuary estate should be administered. The scope of our inquiry permits us to disregard as irrelevant the several outright bequests which dispose of 40% of the residuary estate. The balance — comprising 60% of that residuum — is bequeathed by the testator to his wife, the petitioner herein but that bequest is qualified by the direction that “ * * * my executor pay the same to her in monthly payments of Thirty-five ($35.00) Dollars * * * ”. That such bequest was not intended to be an absolute gift to his wife is, we think, clearly indicated by the succeeding sentence in the will — “In the event Mollie Goodheart dies before her share of the sixty per cent (60%) is paid to her in monthly installments as aforesaid, then in that event the balance of her share remaining is to be paid to her son, Joseph Goodheart.” (Emphasis supplied.) We regard as significant the use by the testator of the phrase “ her share ” of 60% of the residuum. Contrary to the construction urged by the petitioner and adopted by the Appellate Division_— that the testator intended his bequest to the petitioner to be an absolute gift of a stated percentage of his residuary estate — we think the testator’s use of the phrase “ her share ” in connection with that stated portion of the residuary expresses his intent that only so much of sixty percent (60%) of the residuary estate shall be paid to his wife^ as equals at her death the total sum which then shall have been “paid to her in monthly installments as aforesaid” — viz., “ monthly payments of Thirty-five ($35.00) Dollars ”. If the total of those monthly payments made to her prior to her death does not exhaust 60% of the residuary estate — against which they are made a charge — the balance will be distributed as intestate property to the distributees of the testator.

Concluding, as we do, that the testator chose language which clearly defines his testamentary plan we cannot now approve a different plan by resorting to the rule which indulges a presumption that the testator did not intend to die intestate as to a portion of his estate. (Matter of Disney, 190 N. Y. 128, 131; Matter of Tamargo, 220 N. Y. 225, 228, 232.) In the circumstances disclosed by this record we need no canon of construction to justify our conclusion “ * * * except, indeed, the primary one, to which all others are subordinate, that the intention of the testator is to be sought in all his words, and, when ascertained, is to prevail ”. (Matter of Buechner, 226 N. Y. 440, 444.)

We also disagree with that part of the decree entered upon the order of the Appellate Division which rules that the petitioner is entitled to elect to receive whatever capital sum may be necessary to produce the monthly payments for which the “ Fifth ” paragraph of the testator’s will makes provision.' The common-law rule governing an annuitant’s right to elect to take the capital sum in lieu of an annuity as directed to be paid distinguishes between (1) cases where the will directs the executor to pay the annuity out of the estate and (2) cases where he is directed to purchase an annuity. Where, as in the present case, the testator directs an annuity to be paid out of the estate with a valid gift over of any remainder, the beneficiary may not elect to receive in lieu thereof the capital sum necessary to produce the' payments directed. (28 Halsbury’s Laws of England [2d ed.], pp. 188-191; Wright v. Callender, 2 De. G. M. & G. 652 [1852] ; In re Cottrell, Buckland v. Bedingfield, [1910] 1 Ch. 402; In re Hill, Westminster Bank Limited v. Wilson, [1944] Ch. 270; 3 Scott on Trusts [1939 ed.], § 346, p. 1897; and, see, Matter of Proctor, 235 App. Div. 6, 7-8.) At common law the right to receive a capital sum in lieu of the payments directed arose only when the executor was directed to purchase an annuity. (Matter of Cole, 219 N. Y. 435, 438; and see Matter of Fischer, 261 App. Div. 252; Matter of Bertuch, 225 App. Div. 773; Matter of Oakley, 142 Misc. 1, 2-5; Matter of Foster, 174 Misc. 933, 936.) Although the law governing purchased annuities has no application in the circumstances with which the present proceeding deals, it should be noted that the Legislature, by the enactment of section 47-b of the Decedent Estate Law, has changed the common-law rule respecting purchased annuities by providing that the annuitant may not elect to take the capital sum which the will directs shall be used for such purchase in lieu of such annuity “ * * * except to the extent the will expressly provides for such right, or except to the extent that the will expressly provides that an assignable annuity be purchased.” .Finding in the will we are now construing no language which directs the executor to purchase án annuity, this case is governed by the common-law rule applicable to annuities payable directly out of the estate and accordingly the petitioner is not entitled to elect to receive the capital sum necessary to produce the monthly payments of $35 which the testator directed shall be paid to her.

The order of the Appellate Division should be reversed and the decree of the Surrogate’s Court affirmed, with costs in the Appellate División and in this court to the appellant, payable out of the estate.

Loughran, Ch. J., Conway, Desmond, Thacher, Dye and Fuld, JJ., concur.

Ordered accordingly. [See 296 N. Y. 837.]


text:
    Ellen V. Wadsworth, as Administratrix of the Estate of Frederick J. Wadsworth, Deceased, Respondent, v. Delaware, Lackawanna & Western R. R. Co., Appellant.
    Argued November 14, 1946;
    decided February 27, 1947.

      Hugh McM. Buss and Laurence B. Goodyear for appellant.
    I. As a matter of law defendant railroad was not negligent. (Matter of Case, 214 N. Y. 199; Bowden v. Lehigh Valley R. R. Co., 178 App. Div. 413, 226 N. Y. 648; Foley v. N. Y. C. & H. R. R. R. Co., 197 N. Y. 430; McKeever v. N. Y. C. & H. R. R. R. Co., 88 N. Y. 667; Culhane v. N. Y. C. & H. R. R. R. Co., 60 N. Y. 133.) II. Plaintiff’s intestate was contributorily negligent as a matter of law. (Proefrock v. Denney, 283 N. Y. 648; Crough v. New York Central R. R. Co., 260 N. Y. 227; Buckin v. Long Island R. R. Co., 286 N. Y. 146; Mead v. Louer, 285 N. Y. 230; Nelson v. Nygren, 259 N. Y. 71; LaGoy v. Director-General of Railroads, 231 N. Y. 191; Weigand v. United Traction Co., 221 N. Y. 39; Miller v. New York Central R. R. Co., 226 App. Div. 205, 252 N. Y. 546.)

      Melvin H. Zurett for respondent.
    I. There is ample evidence of defendant’s negligence to sustain the jury’s finding. II. Decedent was not guilty of contributory negligence as a matter of law. (Chamberlain v. Lehigh Valley R. R. Co., 238 N. Y. 233; Nicholson v. Greeley Square Hotel Co., 227 N. Y. 345; O’Brien v. Lehigh Valley R. R. Co., 177 Misc. 25, 289 N. Y. 783; Flynn v. Long Island R. R. Co., 289 N. Y. 283; Carr v. Pennsylvania R. R. Co.,, 225 N. Y. 44.)
   Lewis, J.

The plaintiff’s intestate, a truck driver, met his death in a railroad grade crossing accident which occurred near the village of Bath, New York, at a point where the defendant’s right of way passes over a country road known as “Avenue A ”. At Trial Term the plaintiff had a judgment which has been affirmed at the Appellate Division, one Justice dissenting.

Upon this appeal by the defendant our inquiry is two-fold — (a) Was the evidence sufficient to justify the Trial Justice in submitting to the jury the question of defendant’s negligence? (b) Did, the defendant assume the statutory burden cast upon it (Civ. Prac. Act, § 265) of proving the decedent’s contributory negligence? In pursuing those inquiries we shall first consider evidence descriptive of physical conditions at and near the site of the crossing and those related factors which served to fix the duty of the railroad’s operatives and the decedent as train and truck approached the crossing.

Although it was assumed upon the trial that at the site of the accident the defendant’s two-track right of way runs east and west and that Avenue A runs north and south, the fact should be stated that Avenue A crosses the defendant’s tracks at an angle of 42 degrees. The case involves no increased hazard due to curves in the railroad right of way near the crossing. The defendant’s tracks west of the crossing — from which direction the train approached — are straight for a distance of more than 1,500 feet and they continue straight east of the crossing for more than 2,000 feet. At a point about 3,100 feet west of the crossing the tracks pass over a railroad bridge which spans the Cohocton Biver. From that bridge easterly to the Avenue A crossing the tracks are laid on an embankment which rises above the level of the surrounding land at an elevation which makes railroad traffic along that section of track visible to highway traffic approaching the crossing from the north on Avenue A. Along that straight strétch of track extending 1,100 feet west of the crossing the only obstructions to a clear view between defendant’s tracks and Avenue A, as that road approaches the crossing from the north, are three widely separated trees which are near the railroad right of way at locations respectively 319, 691 and 742 feet from the crossing.

Avenue A — a dirt road — is practically level as it approaches the railroad crossing from the north. , When it reaches a point 75 feet from defendant’s right of way the road ascends gradually 5.21 feet to the level of the tracks. On the west side of the road 20 feet north of defendant’s tracks is the usual railroad cross-arm warning sign. On the same side of the road at a point 250 feet north of the tracks is a statutory disc sign which serves as a warning to southbound highway traffic. The evidence is not disputed that as one proceeds southerly along Avenue A and' reaches a point 500 feet from the crossing there is available to the right or west a view of defendant’s tracks extending from the crossing more than 1,100 feet west to the Cohocton River bridge. As one proceeds- further to the south from that point approaching the crossing along Avenue A — to borrow from the charge by the Trial Justice — “ * * * it is perfectly clear that at a point at- least 150 to 185 feet from the crossing that a driver could have an unobstructed view up the tracks [to the west] for a distance of at least 1,300 feet, or as far as the river bridge. Any other finding on that point would be contrary to the evidence in the case.”

At the time of his death the decedent — then fifty years of age — was employed by a trucking company which had given him the special assignment of delivering to news depots in southern New York the morning edition of a Rochester newspaper. In performing that mission for a period of at least five years he had made daily early morning deliveries at the Soldiers’ Home near Bath. In doing so — except on days when weather would not permit — he had passed over Avenue A and the defendant’s tracks as a way to shorten his route. At 6:15 a.m. on June 1,1943 — a clear morning — the decedent was following his usual course southerly along Avenue A approaching the defendant’s right of way at a speed of from 10 to 15 miles an hour. The driver’s cab in the one and one-quarter ton truck he was operating had a door in each side in the upper half of which was a window 24 inches wide and 20 inches from top to bottom. He occupied the driver’s seat which was so stationed that its back was 6 inches behind the rear edge of each door. When the decedent’s truck, after ascending the slight grade that leads up to the level of the crossing, had passed over the nearer or westbound track and had almost cleared the further or eastbound track the fatality occurred when the truck was struck on the right rear by an eastbound passenger train operated by the defendant. At the time of the collision the train — then 15 minutes late — was running at a speed of 60 miles an hour with its power shut off preparatory to stopping at the Bath station one-half mile east of the Avenue A crossing.

The plaintiff does not contend that no whistle was sounded as a warning of the train’s approach to the crossing. Indeed each of the twelve witnesses who gave evidence upon that point testified that the whistle was sounded. The question was whether the whistle gave a timely warning. On that phase of the case the plaintiff points to testimony by the defendant’s engineer who, upon his examination before trial, is recorded as having said that he sounded the whistle “ just east of the river bridge at Soldiers’ Home.” (Emphasis supplied.) In the same examination before trial and in reference to his answer last quoted above the engineer was asked — How far would that be from the crossing? ” To that question he answered — 300 feet.” Upon" the trial when the same witness was called by the defendant, he testified that in his examination before trial, upon being asked when he first sounded the whistle, he had answered “ west ” of the river bridge not east as the record of the examination shows. The same witness also stated upon the trial that when, on his examination before trial, he had stated that he had first sounded the whistle “ 300 feet ” from the crossing he had mistakenly stated that distance and that he desired to correct that misstatement by testifying “ 1300 feet.” The evidence given by the twelve witnesses who testified as to the whistle warning — some of whom were called by the plaintiff — when considered with other related testimony, is made the basis of a strong argument by counsel for the defendant that the whistle was first sounded more than 300 feet west of the crossing. However, the jury had the right to disbelieve all the witnesses who testified at the trial upon the question as to when the whistle was sounded and to rest their decision on that question upon the single statement made by the defendant’s engineer in his examination before trial. As the credibility of witnesses is an inquiry within the province of the triers of the facts we are constrained to conclude that the Trial Justice was warranted in submitting to the jury the question of the defendant’s alleged negligence in failing to give a timely warning of the train’s approach to the crossing.

Passing to the remaining question — whether the defendant met the burden of proving the decedent’s contributory negligence— we conclude that the record strongly supports the defendant’s position and accordingly that the judgment should be reversed and the complaint dismissed.

Since the enactment of chapter 228 of the Laws of 1913, the burden of proving contributory negligence by the decedent in a death case has been upon the defendant. (Civ. Prac. Act, § 265.) That question is often one of fact for the jury (Chamberlain v. Lehigh Valley R. R. Co., 238 N. Y. 233, 235) but it is not the invariable rule. The statutory change, which cast the burden of proof on the defendant, did not change the common-law standard of care required of a decedent — that being a matter of substantive law. Upon that subject this court has had occasion to say — ‘ ‘ The change in the rule as to the burden of proof is not a change in the substantive law and does not alter the measure or duty of proper care. If it does not appear whether or not the deceased exercised proper care when approaching the crossing, or if the proofs are equally balanced, the defendant fails to bear the burden of proof imposed upon it. Such is the substance of the statutory change in the common-law; rule. Except for the shifting of the burden of proof, the rule is the same as in cases of personal injury not resulting in death. * * * But when one, familiar with the crossing, as deceased was, is heedless of ordinary precautions in a place which he knows to be dangerous, no question remains for a jury to pass on.” (Schrader v. N. Y., C. & St. L. R. R. Co., 254 N. Y. 148, 150, 151.)

In the present case the decedent, in the performance of his assigned duties, had gained accurate knowledge of conditions existing on Avenue A at the point where it crosses defendant’s tracks at grade. Having, driven a truck across those tracks at that point daily for a period of five years he knew, or in the exercise of reasonable care he should have known, that the danger reasonably to be apprehended at that crossing required of him to be alert and careful for his own safety. “ The omission on the part of the railroad company of some usual act, purposed to give warning to travelers on the highway may tend to throw one off his guard; but it does not justify the nonobservance of ordinary care on his part.” (Avery v. N. Y., 0. & W. Ry. Co., 205 N. Y. 502, 506.) The evidence is not disputed that on the clear morning when this accident occurred and while the decedent was traversing on Avenue A the last 500 feet leading to the railroad crossing, there was available to him an almost unobstructed view of the defendant’s straight track — extending 1,100 feet west of the crossing — along which the train approached which caused his death. Finally there came a time when the decedent’s truck — continuing its advance under his own guidance and operation — reached the defendant’s westbound track. There — as was said in Cote v. Boston & Maine Railroad (278 N. Y. 78, 85) — “ * * * he could have stopped in safety, but either he did not have his car under such control that he could stop, or he elected to proceed. In either event, he failed to exercise the degree of care he should have exercised, and having failed so to do, there can be no recovery in this action.”

The ruling by this court in Grough v. New York Central R. R. Co. (260 N. Y. 227, 231-232) may be applied with equal cogency to evidence in the present case which bears upon the lack of care by the decedent for his own safety — “ The driver had to give attention to his car but it is difficult to suggest a ‘ possible hypothesis based on the evidence ’ which would exonerate him of the charge of contributory negligence. He was heedless of ordinary precaution in a place which he must have known to be dangerous or he would not have driven on the tracks immediately in front of the train. If he had checked the speed of his car and looked right and left before he went on the tracks, the conclusion is" inevitable that he might have avoided the accident. If he had used his senses of hearing and sight and proceeded cautiously and carefully (Horton v. N. Y. C. R. R. Co., 237 N. Y. 38,47) he would not have failed to sense the approach of the train. He could not, except at his own risk, drive on the railroad track, relying on not having seen a train or heard a signal and taking no further precaution. If the crossing is dangerous, the care should be commensurate with the obvious risk. * * * Could it be said that under any hypothesis arising from and based on the evidence he did all that he could do to avoid danger? The evidence in this case points to a total lack of care on the part of the driver.” (See, also, Schrader v. N. Y., C. & St. L. R. R. Co., supra, pp. 150-152; Castle v. Director-General of Railroads, 232 N. Y. 431, 434-435; Miller v. N. Y. C. R. R. Co., 226 App. Div. 205, affid. 252 N. Y. 546; Proefrock v. Denney, 258 App. Div. 5, affd. 283 N. Y. 648.)

The judgments should be reversed and the complaint dismissed, with costs in all courts.

Desmond, Thacher, Dye and Fuld, JJ., concur; Lotjghran, Ch. J., and Conway, J., dissent and vote to affirm upon the ground that whether or not the defendant had sustained the burden of establishing the decedent’s contributory negligence was a question of fact for the jury.

Judgments reversed, etc.


author: Conway, J. Thaoheb, J.

text:
    Morris Fliegel et al., Appellants, v. Manhattan Savings Bank, Respondent.
    Argued October 8, 1946;
    decided February 27, 1947.

      Jacob Bromberg for appellants..
    I. When title to the mortgaged property vested in the United States Government on September 19, 1941, the bank’s mortgage ceased to exist as such and thereafter became a lien on the condemnation award. (Muldoon v. Mid-Bronx Holding Corp., 287 N. Y. 227; Matter of City of New York [Rockaway Beach], 288 N. Y. 51.) II. The bank, being a party thereto, was bound by all proceedings taken in the condemnation, and is entitled only to such interest as was awarded by the court. III. Mortgagee claimant in condemnation proceeding is entitled to interest at the same rate paid=by condemnor to other claimants after vesting of title. (Muldo on v. Mid-Bronx Holding Corp., 287 N. Y. 227; Matter of City of New York [Rockaway Beach], 288 N. Y. 51.)

      Joseph T. Hanlon, A. 8. Hutchins and Waldo Hutchins for respondent.
    I. Payment of interest stipulated for in a mortgage contract is as much a part of the obligation as principal. (Morley v. Lake Shore Railvay Co., 146 U. S. 162.) II. By operation of law the lien of a mortgage on land taken by right of eminent domain is transferred to the award. (Hill v. Wine, 35 App. Div. 520; Gates v. De La Mare, 142 N. Y. 307; Bank of Auburn v. Roberts, 45 Barb. 407, 44 N. Y. 192; United States v. Certain Lands in Borough of Brooklyn, 129 F. 2d 577; United States v. Certain Lands in St. Louis, 29 F. Supp. 92; United States v. Dunnington, 146 U. S. 338.) III. The mortgage contract was neither destroyed nor impaired when the mortgaged land was taken by right of eminent domain. IV. Payment of interest on an award for land taken by condemnation binds the fee owners only and not mortgagees. (Matter of City of New York [Bronx River Parkway], 284 N. Y. 48; Matter of City of New York [Chrystie Street], 268 N. Y. 679.)
   Conway, J.

On September 19, 1941, plaintiffs were owners in fee of real property in Brooklyn. The defendant bank held a first mortgage thereon upon which there was a balance due in the sum of $41,200. The interest rate provided in the mortgage was 5%. On the date mentioned, pursuant to a “ decree or judgment of the United States District Court in and for the Eastern District of New York, title to the property vested in the Government and there was deposited with the Registry of that court the sum of $40,000. That was done pursuant to section 258a of title 40 of the United States Code. That section provides that interest shall not be allowed on the sum paid into court. Thus plaintiffs, as owners, were not entitled to interest on the sum of .$40,000 from the date of deposit but under that statute were entitled to interest at 6% per annum on any amount over $40,000 finally awarded as the value of the property, as of the date of taking, from su,ch date to the date of payment (§ 258a).

Plaintiffs then moved in the United States District Court “ for payment to them of said sum of Forty thousand ($40,000.00) Dollars upon presentation of a satisfaction of said bond and mortgage, on which there was then owing, exclusive of interest, the sum of Forty-one thousand Two hundred ($41,200.00) Dollars.”

Plaintiffs were thus seeking an order which would enable them to obtain the $40,000 on deposit in court upon the'presentation of a satisfaction of defendant’s bond and mortgage in the sum of $41,200. That would have been a permissive order by means of which plaintiffs could have paid off the entire first mortgage, thereby terminating the running of interest thereon, and -in addition could have made certain that, if they paid off the $41,200 to defendant and obtained a satisfaction piece, they could promptly obtain the $40,000 on deposit with the court. Whether or not the mortgage was an extended one is of no importance since the acceptance of payment and delivery of the satisfaction by defendant were to be conditions precedent to the receipt by plaintiffs of the $40,000 on deposit. Nevertheless defendant appeared in opposition to the granting of the motion and demanded that the sum on deposit be paid to it in partial satisfaction of its mortgage. Some months later an order was entered on defendant’s motion directing payment of the sum on deposit to it and payment was actually made on February 20, 1942.

The condemnation proceeding continued and eventually it was determined that the proper compensation for plaintiffs’ property was the sum of $65,500 with interest at 6% on that portion of the award exceeding $40,000 for the period from September 19, 1941, to June 6, 1945.

The parties then appeared in the New York State Supreme Court seeking a declaratory judgment upon an agreed statement of facts. The question presented was whether defendant was entitled to interest upon the deposit in court at the rate provided in the mortgage for the period between the taking of title by the Government on September 19, 1941, and the payment to the defendant on February 20,1942. The Appellate Division, by a closely divided court, determined that the defendant was entitled to interest at the mortgage rate but only up to the date of the order which directed payment, namely February 4, 1942. The defendant has not appealed from such determination.

The question is a narrow one. There is no problem here presented as to personal liability. The plaintiffs are described only as fee owners of the building and premises ”. Where a mortgagee, without seeking to enforce the obligation of a bond, or other personal agreement to pay the .amount of the mortgage debt, has sought, court aid based upon equitable principles so as to reach'the compensation which must be paid by the sovereign in condemnation to the owner of land taken, our State courts have long held that, since the contractual obligation is no longer secured by a lien upon the property, to that extent the obligation of the sovereign may be substituted for the bond, or other personal obligation to pay, and the mortgagee permitted to obtain the award but "that it must be taken with such interest only as the sovereign may be required by statute to pay to the owner from the date of the vesting of title. (German Savings. Bank v. Dunn, 75 Misc. 251, affd. 150 App. Div. 928; Irving Trust Co. v. Hughes, 239 App. Div. 74, 77; Matter of Bond & Mortgage Guarantee Co. [Boardwalk, Coney Island], 266 App. Div. 876, 922, 979, 980; Muldoon v. Mid-Bronx Holding Corp., 287 N. Y. 227 ; Matter of City of New York [Public Parks-Hammel Boardioalk Corp.], 261 App. Div. 936, mod. 288 N. Y. 51.)

There must, of course, be affirmative action on the part of the mortgagee, but when such affirmative action has been taken, as it was here, it relates back to the time of the vesting of title. That rule was clearly stated and applied in the Muldoon case [supra). There the plaintiffs as trustees held a mortgage on property owned by the defendant, a portion of which had been taken in condemnation by the City of New York, the title vesting on May 1,1939. The plaintiffs filed objections in the condemnation proceeding and requested" that payment be made directly to them. The final decree was entered on March 7, 1940, and directed payment of the award with interest. Actual payment of the award was made several months later. The unpaid principal of the mortgage was greater than the award. The interest provided in the mortgage was 534%. We held that the plaintiffs were entitled to interest only at" the lower rate of 4% from the date óf vesting and, since the owner had paid at the interest fate provided in the mortgage, that it was entitled to a credit for the excess over 4%. We said (Lehman, Ch. J.) at p. 231: “ The statute does not in express terms provide that when a part of a parcel of land subject to the lien of a mortgage is taken in condemnation proceedings, the mortgage debt is reduced by the amount of the compensation which the sovereign must pay for the land taken and that such compensation shall belong to and shall be paid to holders of mortgage liens in order of priority. The right of the holders of a mortgage to payment of the award is not conferred by statute but is a right which such holders may assert upon equitable principles. The plaintiffs have chosen to assert that right in the condemnation proceeding. Since the lien of the mortgage upon the land taken was destroyed when title vested in the land, they have been awarded a right to resort to the compensation which must be paid to the owner of the' land. The obligation of the sovereign to pay that compensation has at their request been transferred to them because the obligation created by the bond is no longer secured by a lien upon the property taken. To that extent the obligation of the sovereign has been substituted for the contractual obligation in the bond. Not the statute but the voluntary act of the owner of the mortgage has effected the substitution. The question might be different if the plaintiffs had chosen to enforce the obligation of the bond in accordance with its terms and had resorted to the award only to the extent necessary to pay a deficiency that might arise upon foreclosure of the mortgage. (See Irving Trust Co. v. Hughes, 239 App. Div. 74, at p. 77.) We do not consider or decide that question.” (Emphasis supplied.)

So in the Matter of City of New York (Public Parks-Hammel Boardwalk Corp.), supra, the interest rate provided in the mortgage was 6%. The first mortgagee moved for payment of the award to it on September 7,1940. The date of vesting of title in the City of New York was May 12,1938. We held that the mortgagee was entitled to 6% interest only from the date of vesting to July 1, 1939, which was the effective date of the present section 3-a of the General Municipal Law (L. 1939, ch. 594)., providing that the city should thereafter pay 4% upon awards.

The earliest case cited supra is German Savings Bank v. Dunn (1912). The rate of interest specified in the mortgage was 4%. There the court, held that the mortgagee was entitled to 6% on the amount due from the date of vesting of title in the city, since that was the interest rate then paid hy the city upon such awards.

The judgments should be reversed, with costs to plaintiffs in all courts, and the action remitted to the Special Term for further proceedings not inconsistent with this opinion.

Thaoheb, J.

(dissenting). In view of the Federal question involved in this case, I dissent and vote for affirmance for reasons stated by Swan, J., in United States v. Certain Lands in Borough of Brooklyn (129 F. 2d 577).

Loughban, Oh. J., Lewis, Desmond, Dye and Fuld, JJ., concur with Conway, J.; Thaoheb, J., dissents in memorandum.

Judgments reversed, etc.


author: Loxjghean, Ch. J.

text:
    The People of the State of New York, Respondent, v. Samuel Solomon, Appellant.
    Argued January 7, 1947;
    decided February 27, 1947.

      I. Maurice Wormser and Arnold Cohen for appellant.
    I. Defendant did not violate section 1712 of the Penal Law, which forbids betting upon a fight, because the provisions of that section must be limited to unlicensed prize fights which are prohibited by section 1710 and not legalized under the Walker Law. (L. 1920, ch. 912, as amd.) II. Section 1712 of the Penal Law is discriminatory class legislation and is unconstitutional. (People v. Griswold, 213 N. Y. 92; People v. Ringe, 197 N. Y. 143; Lawton v. Steele, 152 U. S. 133; Welsh v. Swasey, 214 U. S. 91.)

      Frank S. Hogan, District Attorney, New York County (Bichard G. Denser and Whitman Knapp of counsel), for respondent.
    I. Section 1712 of the Penal Law encompasses betting upon any prize fight, irrespective of the legality or illegality of the fight itself. (People ex rel, Wiener v. Barr, 223 App. Div. 310; People v. Dwyer, 215 N. Y. 46; Peterson v. Martino, 210 N. Y. 412; Hankins v. Mayor, 64 N. Y. 18; United States v. Burroughs, 289 U. S. 159; Matter of Cole, 235 N. Y. 48; Orinoco Realty Co. v. Sandier, 233 N. Y. 24.) II. Section 1712 is not unconstitutional. (People v. Marra, 262 App. Div. 1039; Ex parte Tuttle, 91 Cal. 589; State v. Stripling, 113 Ala. 120.)
   Loxjghean, Ch. J.

After trial in the Court of Special Sessions of the City of New York, the defendant was convicted of betting on a prize fight contrary to section 1712 of the Penal Law. The Appellate Division affirmed. One of the justices dissented and gave leave to the defendant to present the case to us. The fundamental question is one of statutory construction.

Prior to 1920, “ Prise-Fighting and Sparring ” were regulated in this State solely by article 164 of the Penal Law. The relevant provisions thereof are these: “ A person who * * * engages in, instigates, aids, encourages or does any act to further a contention, or fight, without weapons, between two or more persons, or a fight commonly called a ring or prizefight, * * .* or who engages in a public or private sparring exhibition, with or without gloves, * * * at which an admission fee is charged or received * * * is guilty of a misdemeanor.” (§ 1710.) “ A person who bets, stakes, or wagers money or other property, upon the result of such a fight or encounter, or who holds or undertakes to hold money or other property so staked or wagered, to be delivered to or for the benefit of the winner thereof, is• guilty of a misdemeanor.” (§ 1712.)

Since 1920, boxing and sparring matches or exhibitions have been allowed in this State within limits fixed by the Legislature (L. 1920, ch. 912, § 3; Unconsolidated Laws, tit., 25, ch. 1, § 9103). The cited statutes are popularly known as the Walker Law. From the time of its enactment, that legislation has said this: “ The provisions of section seventeen hundred and ten of the penal law shall not apply to any boxing or sparring match or exhibition, conducted, held or given, pursuant to the provisions of this act ”. (L. 1920, ch. 912, § 28. See now Unconsolidated Laws, tit. 25, ch. 1, § 9131 [L. 1933, ch. 625, § 5].) The prize fight here in question was sanctioned by the Walker Law, and so the above provisions of section 1710 of the Penal Law were without application to that fight.

Section 1712 of the Penal Law is firmly united with section 1710 thereof, because section 1712, as we have seen, simply outlaws betting or stakeholding upon the result of such a fight or encounter ” as is forbidden by section 1710. Indeed, section 1712 is without meaning apart from section 1710. Where one section of a statute thus attaches itself to another section thereof, a subsequent amendment of the adopted section must be read into the section that made the adoption (American Bank v. Goss, 236 N. Y. 488, 493). In effect, the Walker Law supplanted section 1710 (see McHugh v. Mulrooney, 258 N. Y. 321). Section 1712, therefore, must now be taken to have no application to prize fights that are conducted conformably to the Walker Law requirements; and, that being so, the present judgment of conviction has no warrant in the law.

In general, casual betting or gaming by individuals — as distinguished from betting or gambling as a business or profession— is not a crime in this State (see Watts v. Malatesta, 262 N. Y. 80; Bamman v. Erikson, 288 N. Y. 133; People v. Gold- stein, 295 N. Y. 61). The construction we have here put upon section 1712 of the Penal Law is in keeping with that long-established legislative policy. People ex rel. Wiener v. Barr (223 App. Div. 310, affd. 248 N. Y. 601) is not authority for a contrary view, since the actual decision of that case was made and affirmed merely upon a question" of procedure.

The judgments should be reversed and the information dismissed.

Lewis, Conway, Desmond, Thacher, Dye and Fuld, JJ., concur.

Judgments reversed, etc.


author: Thacheb, J.

text:
    The People of the State of New York ex rel. Kraushaar Bros. & Co., Inc., Appellant, against Warren Thorpe, Mayor, et al., Constituting the Board of Assessors of the Village of Lawrence, Respondents.
    Argued November 22, 1946;
    decided February 27, 1947.

      Meyer Kraushaar and David I. Kraushaar for appellant.
    It was prejudicial error for the trial court to sustain the refusal of a person to testify on the ground that he was an expert who had not been employed by the relator and in excluding his proffered testimony in connection with facts within his knowledge, even though it may have required professional study, learning or skill to ascertain them. (People ex rel. Manhattan Ry. Co. v. Barker, 152 N. Y. 417; People ex rel. Amalgamated Properties, Inc., v. Sutton, 274 N. Y. 309; Heiman v. Bishop, 272 N. Y. 83; Matter of Board of Water Supply of City of New York, 277 N. Y. 452; People v. Montgomery, 13 Abb. Prac. [N. S.] 207; Tiffany v. Kellogg Iron Works, 59 Misc. 113; People v. Raisen, 211 App. Div. 446; People ex rel. Deuel v. Shaw, 259 App. Div. 977; Burnett v. Freeman, 125 Mo. App. 683; State v. Bell, 212 Mo. 111; Flinn v. Prairie Co., 60 Ark. 204; Pennsylvania Co. for Insurances v. Philadelphia, 262 Pa. 439.)

      Frederick L. Weisler for respondents.
    The trial court was not in error in sustaining the refusal of the expert witness to testify. (People ex rel. Deuel v. Shaw, 259 App. Div. 977; People v. Montgomery, 13 Abb. Prac. [N. S.] 207; Tiffany v. Kellogg Iron Works, 59 Misc. 113; People v. Raisen, 211 App. Div. 446; Pennsylvania Co. for Insurances v. Philadelphia, 262 Pa. 439; Cohen v. Pennsylvania Casualty Co., 89 Pa. Sup. Ct. 367.)
   Thacheb, J.

In this tax certiorari proceeding relator subpoenaed an involuntary expert witness who previously had prepared an appraisal of the property in suit for a prior owner. At the trial relator sought to elicit the witness’s opinion as to the value of the premises but the witness declined to accept a fee and refused to testify, stating that he did not wish to take part in the case. The trial court ruled, over relator’s objection, that, while the witness was required to testify with regard to what he had seen on the premises, he had a right to refuse to answer any question connected with his experience and judgment as a real estate expert and not as an ordinary lay witness. We find no error in this ruling.

While the question presented has not been considered in this court, the ruling of the trial court affirmed in the court below is supported by People v. Raigen (211 App. Div. 446, 461-462), Birch v. Sees (178 App. Div. 609); see, also, People ex rel. Deuel v. Shaw (259 App. Div. 977), Brown v. Travelers’ Life & Accident Ins. Co. (26 App. Div. 544), Tiffany v. Kellogg Iron Works (59 Misc. 113), Peoples v. Montgomery (13 Abb. Prac. [N. S.] 207).

The authorities in other States are in conflict, Indiana, New Jersey and Pennsylvania following the rule in England (Webb v. Page, 1 Car. & K. 23 [1843] holding that an expert witness cannot be compelled to give expert testimony but may contract to do so for an adequate consideration (Buchman v. State, 59 Ind. 1; Hull v. Plume, 131 N. J. L. 511; Stanton v. Rushmore, 112 N. J. L. 115; Pennsylvania Co. for Insurances v. Philadelphia, 262 Pa. 439). Cases in other States in which experts have been required to give professional opinions in evidence against their will almost without exception limit the examinations to opinions which the experts are able to give without study of the facts or other preparation (Ex parte Dement, 53 Ala. 389, 397; Flinn v. Prairie County, 60 Ark. 204, 207-208; People v. Conte, 17 Cal. App. 771, 784; County Commrs. v. Lee, 3 Col. App. 177, 179-180; Dixon v. People, 168 Ill. 179, 191; Swope v. State, 145 Kan. 928, 933; Stevens v. Worcester, 196 Mass. 45, 56; Barnes v. Boatmen’s Nat. Bank, 348 Mo. 1032, 1038; Mount v. Welsh, 118 Ore. 568, 585; State ex rel. Berge v. Superior Court, 154 Wash. 144, 148; Philler v. Waukesha County, 139 Wis. 211, 215, 217; Boynton v. R. J. Reynolds Tobacco Co., 36 F. Supp. 593). The latter rule is quite unsatisfactory. In the realms of medicine, law, science, and many other callings where highly specialized knowledge is essential, only the most eminent are competent to answer ex tempore and • defend impromptu opinions upon cross-examination, but none, without reflection upon his professional ability, may confess ignorance.

We think the better rule is not to compel a witness to give Ms opinion as an expert against his will.

The order should be affirmed, with costs.

Loughran, Oh. J., Lewis, Conway, Desmond, Dye and Fuld, JJ., concur.

Order affirmed.