text:
    Amy R. Holmes, Appellant, v. John Hancock Mutual Life Insurance Company et al., Respondents.

      Argued March 3, 1942;
    decided April 23, 1942.

      Clarence G. Pickard for appellant.
    The proceeds of the policies purchased with premiums in excess of $500 a year are subject to application to plaintiff’s judgment against the decedent. (Addiss v. Selig, 264 N. Y. 274; Bank of Minden v. Clement, 256 U. S. 126; Van Ness v. Ransom, 215 N. Y. 557; Matter of Curtis, 188 App. Div. 470; 228 N. Y. 534; Barber v. Barber, 62 U. S. 582; Durland v. Syracuse Trust Co., 230 App. Div. 786; Goldfish v. Goldfish, 193 App. Div. 686.) The plaintiff is entitled to recover the amount of insurance paid by premiums to the extent of $101.45. (Klee v. Hess, 188 App. Div. 322; Manufacturers Trust Co. v. Equitable Life Assur. Society, 244 App. Div. 357.) The decision of the Appellate Division that the $2,500 policy should not be considered in computing the premium is erroneous. ( U. S. Mortgage & Trust Co. v. Ruggles, 258 N. Y. 32; Chatham Phenix Nat. Bank v. Crosney, 251 N. Y. 189.) The plaintiff is entitled to recover the entire proceeds of the $2,500 policy. (Stronge v. Knights of Pythias, 189 N. Y. 346; Trevor v. Wood, 36 N. Y. 307; Locomotive Eng. Mut. L. & A. Ins. Co. v. Locke, 251 App. Div. 146; 277 N. Y. 584.) The attempted change of beneficiary created a trust void under section 11 of the Personal Property Law (Cons. Laws, ch. 41) and is, therefore, inoperative and a nullity. (Johnson v. New York Life Ins. Co., 75 Fed. Rep. [2d] 425; Bishop v. Bishop, 257 N. Y. 40; Leach v. Godwin, 198 N. Y. 35; Matter of Grace, 232 App. Div. 76; 261 N. Y. 502; Matter of Hitchcock, 222 N. Y. 57; Equitable Life Assur. Society v. Clements, 140 U. S. 226; Quast v. Fidelity Mutual Life Ins. Co., 226 N. Y. 270.) The plaintiff is entitled to recover the dividends which had been allowed to accumulate with the company. (Manufacturers Trust Co. v. Equitable Life Assur. Soc., 244 App. Div. 357; Phœnix Mutual Life Ins. Co. v. Felig, 254 App. Div. 364; 242 West 38th Street Corp. v. Meyrowitz, 248 App. Div. 708.)

      Joseph H. Morey and Walter L. Miller for respondents.
    The Appellate Division properly held that the basis for determining the excess over the $500 annual premiums paid was the net premiums, that is, the gross premiums less the dividends payable in each year. (Klee v. Hess, 188 App. Div. 322; Manufacturers Trust Co. v. Equitable Life Assur. Soc., 244 App. Div. 357.) The Appellate Division properly held that plaintiff has no claim upon any of the three policies under section 52 of the Domestic Relations Law (Cons. Laws, ch. 14) because the average net premiums paid annually on all three policies was less than $500. (Metropolitan Nat. Bank v. Sirret, 97 N. Y. 320; Juker v. Commonwealth, 20 Penn. St. 495.) The Appellate Division also properly held that plaintiff had no claim upon the first policy and, therefore, none upon any of the three policies. (Addis v. Selig, 264 N. Y. 274; Kittel v. Domeyer, 175 N. Y. 205.) There is involved no unlawful suspension of the power of alienation and no trust. (Matter of Scott, 249 App. Div. 542; 274 N. Y. 538; Latterman v. Guardian Life Ins. Co., 280 N. Y. 102; Crossman Co. v. Rauch, 263 N. Y. 264; Springfield Safe Dep. & Trust Co. v. Ireland, 268 Mass. 62; Robb v. Washington & Jefferson College, 185 N. Y. 485.) The trial court and the Appellate Division properly held that the accumulated dividends upon the death of the insured became payable with the face of the policies, and that plaintiff had no claim thereon independent of section 52 of the Domestic Relations Law. (New. York Plumbers Specialties Co. v. Stein, 140 Misc. Rep. 161; Phœnix Mut. Life Ins. Co. v. Felig, 254 App. Div. 364; Manufacturers Tr. Co. v.. Equitable Life Assur. Soc., 244 App. Div. 357; 242 West 38th St. Corp. v. Meyrowitz, 162 Misc. Rep. 488; 248 App. Div. 708; Matter of Messinger, 29 Fed. Rep. [2d] 158; Cohen v. Samuels, 245 U. S. 50.)
   Lehman, Ch. J.

In 1923 the plaintiff was granted a decree of divorce in the Supreme Court of the State from her husband, Henry S. Holmes. In accordance with a separation agreement previously made by them, the decree of divorce provided that Henry S. Holmes should pay to the plaintiff alimony at the rate of $150 per month. Henry S. Holmes died in 1939. He had married the defendant Marie F. Holmes after the divorce. She survived him. She is named as the life beneficiary under three policies issued by The John Hancock Mutual Life Insurance Company, insuring the life of Henry S. Holmes. These policies were issued prior to March, 1927. At the time of his death Henry S. Holmes was in default in payment of alimony due to the plaintiff. As creditor of the deceased the plaintiff seeks in this action to obtain payment of the unpaid alimony out of the proceeds of the insurance policies upon the life of Henry S. Holmes, the debtor.

Each of the policies contained provisions permitting the insured to nominate and change the beneficiary to whom the proceeds of the policies should be paid and also offering to the insured “ optional methods of settlement.” Before his death the insured nominated his wife, the defendant Marie F. Holmes and his nephews, the defendants William R. Holmes and Morgan Dwight Holmes, as beneficiaries under each of said policies, and directed that the proceeds of the policies be left on deposit with the company, and that the interest be paid quarterly to his wife during her lifetime and after her death to his nephews “ until the elder or survivor of said nephews attains the age of thirty-five,” and that thereafter the principal be paid to the nephews or to the survivor The plaintiff challenges the validity of these directions on the ground that they constitute an unlawful suspension of the power of alieñation.

We may assume that if the proceeds of the policies constituted a trust fund, these directions would be void under the provisions of section 11 of the Personal Property Law (Cons. Laws, ch. 41). The insurance company does not, however, hold the proceeds of the policy as a trust fund. By the terms of the policy it has contracted to pay stipulated amounts, at stipulated times and in stipulated manner. “ The obligation of the insurance company constitutes a debt from the company to * * * the beneficiary, under the policy.” The stipulated payments are not income on personal property. They constitute deferred payments which the company agreed to make to the beneficiary * * (Crossman Co. v. Rauch, 263 N. Y. 264, 273.) The provisions of section 11 of the Personal Property Law have no application to such an obligation.

serious problem presented by this appeal concerns the application of section 52 of the Domestic Relations Law (Cons. Laws, ch. 14), which was impliedly repealed in March, 1927, by the enactment of section 55-a of the Insurance Law (Cons. Laws, ch. 28; L. 1927, ch. 468). (Chatham, Phenix Nat. Bank & Trust Co. v. Crosney, 251 N. Y. 189; United States Mortgage & Trust Co. v. Ruggles, 258 N. Y. 32.) The repealer may not, however, be given retroactive effect. (Addiss v. Selig, 264 N. Y. 274.) Section 52 restricts the right of a wife to receive, “ as her separate property, and free from any claim of a creditor or representative of her husband ” insurance moneys payable by the terms of a policy .upon her husband’s life. That portion of such insurance moneys which is purchased by excess of premium above five hundred dollars “ actually paid annually out of the husband’s property ” is by the terms of the statute “ primarily liable for the husband’s debts.” The plaintiff’s debt originated before the repealer of the statute and to obtain payment of her debt she may claim any rights provided by the statute.

At the outset we note that the statute restricts only the right of a wife to receive insurance moneys. (Chatham Phenix Nat. Bank & Trust Co. v. Crosney, supra.) The insurance moneys payable to the wife during her lifetime are primarily liable for the husband’s debts in so far as such moneys were purchased by excess of premiums over $500. The moneys payable to the nephews will be received by them free from claims of debtors. It is not possible for this court upon the evidence presented upon the trial to compute what portion, if any, of the moneys payable to the wife were purchased by such excess. We can, upon this appeal, determine only how the computation should be made.

The first policy insuring the decedent’s life in the sum of $2,500 is dated 1916. The stated premium in the policy is $75.45. The second policy insuring the decedent’s life in the sum of $10,000 is dated December 26, 1923. The stated premium is $258.80. The third policy insuring the decedent’s life in the sum of $10,000 is dated June 27, 1925. The stated premium is $267.20. Annual dividends were payable under the terms of each policy and the insured was given the option whether dividend distributions should be “ (a) taken in cash, (b) applied in abatement of premium payments, (c) left on deposit with the Company to accumulate with interest at the rate of not less than three and one-half percentum per annum, payable with the policy or withdrawable in cash on demand by the holder.” Each policy also provided that in consideration of an increased premium the insured should be entitled to certain disability benefits including the waiver by the company of the payment of “ further premiums during the continuance of the disability.”

The parties have stipulated the facts. At the time when the marriage between the plaintiff and her husband was dissolved, the first policy of insurance upon the husband’s life had been in effect for several years. The insured had designated the plaintiff as the beneficiary, but the right to change the beneficiary was reserved to ' the insured. In 1925 the insured designated “ his former wife, Amy R. Holmes, his wife Marie F. Holmes and his nephews William R. Holmes and Morgan Dwight Holmes to be beneficiaries under said policy * * * still reserving to himself the privilege of other changes either in beneficiary or mode of payment. * * * Not until 1932 did the insured exercise his reserved power to change his beneficiary. Thus if he had died prior to March, 1927, when section 52 of the Domestic Relations Law was repealed, the plaintiff would have received the proceeds of the policy as beneficiary, and under the statute no creditor of the insured could have made any claim upon the proceeds of the policy. The courts below have held that since the proceeds of the policy were received by the wife under a designation of beneficiary made after section 52 was repealed, no creditor can claim any rights to the insurance money under that section.

We do not agree with that conclusion. The designation by 1 the insured of his wife as beneficiary of the policy was made under a power reserved in the policy itself. While section 52 was in effect the creditors had the right to resort to the proceeds of the policy if the insured by exercise of his reserved power should designate his wife as beneficiary. The Legislature by repealing section 52 did not deprive creditors of the rights assured to them by the repealed statute, even assuming that the Legislature could have done so. (Addiss v. Selig, supra.) The change of beneficiary thereafter by exercise of a power previously reserved did not operate to confer upon creditors a right to the proceeds of any policy which they did not possess in 1927. At that time their right was, it is true, still contingent. The change of beneficiary caused the contingency to become a fact. Even without a new exercise by the insured of his reserved power to change the beneficiary, if this plaintiff had died, the wife of the insured would have been entitled to the proceeds of the policy and the creditors of the insured could have made claim to them.

For these reasons we conclude that section 52 of the Domestic Relations Law applies to this policy after 1927 in the same manner as the section applied to this policy before the section was repealed.

Until June, 1925, when the third policy was issued, the premiums on policies of life insurance actually paid annually out of the husband’s property did not exceed $500. The statute has no application to insurance moneys payable by the terms of the first two policies in so far as such moneys have been purchased out of premiums paid prior to that date. The insurance moneys payable to the wife upon all three policies are primarily liable for the debts of the insured only in so far as such moneys have been purchased by “ excess of premium above five hundred dollars ” paid thereafter annually out of the husband’s property.” The question remains — how such excess shall be calculated in this case.

The Appellate Division has held that in computing the premium actually paid annually out of the husband’s property, the courts must deduct from the amount of the annual premium, as stated in the policy, the amount of the dividends declared in any year. Under the distribution options ” contained in the policies, an insured might, if he chose, require that these dividends be applied in abatement of premium payments.” It is plain that where the insured exercises his option to have the dividends applied in that manner, the amount actually paid out of the property of the insured is only the remainder of the premium as abated ” by the dividends. In our opinion, that is true also where an insured exercises the option that such dividends be “ taken in cash.” For, the insurance moneys payable under the terms of the policy upon the death of the insured, are purchased only by that part of the premium which is retained by the insurance company in order to cover the cost of furnishing the insurance.” The insured “ gets the insurance at actual cost.” (Rhine v. New York Life Ins. Co., 273 N. Y. 1, 10.) That is not true where the insured exercises the third distribution option, to have the dividend “ left on deposit with the company to accumulate with interest at the rate of not less than three percentum per annum, payable with the policy or withdrawable in cash on demand by the holder ” and does not thereafter demand such dividends. The dividends are then paid to the beneficiary as part of the insurance moneys payable by the insurance company under the terms of the policy in consideration of the annual premiums fixed by the policy. The actual purchase price of all the insurance moneys is the premium fixed by the policy and retained by the insurance company.

In February, 1933, the insured became entitled to the disability benefits provided by the policy. From that date, the insurance company, in accordance with the stipulations of the policy, waived actual payment of any further premiums, but credited the insured with dividends as if such premiums had been paid. The waiver of payment of the premiums was purchased by the insured through payment of an additional amount of premium. During the years before the disability arose, that additional amount was exacted by the company as part of the premium in order to cover the cost of providing the insurance if payment of such cost by the insured should thereafter be waived in accordance with the terms of the policy. In effect, the promise to waive further payments of premium after disability was a promise by the company to make such payments in behalf of the insured, and when the company credited the insured with dividends upon such premiums, the parties gave to the policy that practical construction.

The judgment of the Appellate Division and that of the Special Term should be reversed, with costs in all courts to the appellant to abide the event, and the case remitted to the Special Term for a new trial or hearing, in order to compute, in accordance with this opinion, the amount of insurance moneys, if any, which are “ primarily liable for the husband’s debts.”

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

Judgment accordingly.


source: Caselaw Access Project

author: Lehman, Ch. J.

license: Public Domain

text:
    Bus Depot Holding Corporation et al., Respondents, v. Lewis J. Valentine, as Police Commissioner of the City of New York, Appellant.
    Argued March 10, 1942;
    decided April 23, 1942.

      William C. Chanler, Corporation Counsel (Herman Horowitz and Murray Sendler of counsel), for appellant.
    The police commissioner is vested with full and complete power to promulgate traffic regulations excluding stated classes of unfranchised buses from designated streets. (New York City Charter, § 435, effective January 1, 1938; Cherubino v. Meenan, 253 N. Y. 462; People v. Rubin, 284 N. Y. 392; Tamburrino v. Sterrick Delivery Corp., 241 App. Div. 221; People ex rel. Cavanagh v. Waldo, 72 Misc. Rep. 416; 149 App. Div. 927; 205 N. Y. 589; Commissioners of Palisades Interstate Park v. Lent, 240 N. Y. 1; Carr v. City of New York, 281 N. Y. 469; Commonwealth v. Stodder, 2 Cush. [Mass.] 562; Peoples Rapid Transit Co. v. Atlantic City, 105 N. J. L. 286; 106 N. J. L. 587; Red Star Motor Drivers’ Assn. v. Detroit, 234 Mich. 398; City of New York v. Rice, 198 N. Y. 124; People ex rel. Silver v. Riegelmann, 187 App. Div. 897; Matter of Edwards v. Murdock, 283 N. Y. 529; Matter of Small v. Moss, 279 N. Y. 288.) The use of particular streets for profit by interstate buses being merely permissive, it may be curtailed without impairing the rights of the bus operators, and, a fortiori, without impairing the rights of the bus terminal business on abutting real estate. (Stephenson v. Binford, 287 U. S. 251; Matter of Village of Bronxville v. Maltbie, 284 N. Y. 206; Carr v. City of New York, 281 N. Y. 469; Jones Beach Boulevard Estate, Inc., v. Moses, 268 N. Y. 362; Perlmutter v. Greene, 259 N. Y. 327; Sauer v. City of New York, 206 U. S. 536; Van Aken v. State of New York, 261 N. Y. 360; Calumet Federal Savings & Loan Assn. v. City of Chicago, 306 Ill. App. 524; King v. Stark County, 66 N. D. 467; People v. Rubin, 284 N. Y. 392; Allen & Reed, Inc., v. Presbrey, 50 R. I. 53; City of Buffalo v. D., L. & W. R. R. Co., 190 N. Y. 84.) The trial court exceeded its judicial function to test whether the regulations were arbitrary and capricious; instead it annulled provisions which did not affect any plaintiff, excluded from evidence the bases of the police commissioner’s determination and substituted its own discretion for that of the commissioner. (Jones Beach Blvd. Estate, Inc., v. Moses, 268 N. Y. 362; Campbell v. City of New York, 244 N. Y. 317; Federal Communications Commission v. Pottsville Broadcasting Co., 309 U. S. 134; American Tel. & Tel. Co. v. United States, 299 U. S. 232; Headley v. City of Rochester, 272 N. Y. 197; California v. San Pablo & Tulare R. R. Co., 149 U. S. 308; Lehon v. City of Atlanta, 242 U. S. 53; People ex rel. Allied Owners Corp. v. Sexton,
      257 App. Div. 215; 281 N. Y. 853; People ex rel. Behrer-Nason Co. v. Miller, 254 App. Div. 696.) The regulations violate no provision of the Federal or State Constitutions. (People v. Rubin, 284 N. Y. 392; South Carolina State Highway Dept. v. Barnwell Bros., 303 U. S. 177; Atchison, Topeka & Santa Fe Ry. Co. v. Railroad Commission, 283 U. S. 380; Philadelphia-Detroit Lines, Inc., v. Simpson, 37 Fed. Supp. 314; 312 U. S. 655; Maurer v. Hamilton, 309 U. S. 598; Euclid v. Ambler Co., 272 U. S. 365; Soon Hing v. Crowley, 113 U. S. 703; Cusack Co. v. Chicago, 242 U. S. 526; Packard v. Banton, 264 U. S. 140.)

      Abraham Rickman for Bus Depot Holding Corporation, respondent.
    The defendant had no power to promulgate the regulations, the enforcement of which has been enjoined. (Peace v. McAdoo, 46 Misc. Rep. 295; 110 App. Div. 13; Cherubino v. Meenan, 253 N. Y. 462; Weiner v. Valentine, 17 N. Y. Supp. [2d] 355; Eighth Ave. Coach Corp. v. City of New York, 170 Misc. Rep. 243; 259 App. Div. 870; Matter of Smith v. Morgan, 253 App. Div. 239; Matter of Small v. Moss, 279 N. Y. 288; Matter of Goelet v. Moss, 248 App. Div. 499; 273 N. Y. 503.) The regulations which have been enjoined violate the Fourteenth Amendment of the United States Constitution and sections 6 and 7 of article 1 of the Constitution of the State of New York. (Matter of Edwards v. Murdock, 283 N. Y. 529; Eighth Avenue Coach Corp. v. City of New York, 170 Misc. Rep. 243; 259 App. Div. 870.) By the regulations which have been enjoined, the defendant denied to the plaintiffs that equal protection of the laws guaranteed to them by the Fourteenth Amendment to the Federal Constitution and section 11 of article 1 of the Constitution of the State of New York. (People v. Cohen, 272 N. Y. 319; People v. Kuc, 272 N. Y. 72; Liggett v. Baldridge, 278 U. S. 105.) The regulations which have been enjoined impose a direct and unconstitutional burden upon interstate commerce. (Adams Express Co. v. City of New York, 232 U. S. 14; People v. Horton Motor Lines, 281 N. Y. 196.)

      Bernard Sobol for Pennsylvania Greyhound Lines, Inc., et al., respondents.
    The courts below properly applied the test of unreasonableness in ascertaining the invalidity of the police regulations. Since the record contains evidence to support the findings of facts, which have been affirmed by- the Appellate Division, the judgment declaring them invalid must be affirmed. (Glaser v. Glaser, 276 N. Y. 296; Bernstein v. Kritzer, 254 N. Y. 410; York Mortgage Corp. v. Clotar Const. Corp., 254 N. Y. 128; Cherubino v. Meenan, 253 N. Y. 462; Matter of Village of Bronxville v. Maltbie, 284 N. Y. 206; Matter of Stubbe v. Adamson, 220 N. Y. 459; Commissioners of Palisades Interstate Park v. Lent, 240 N. Y. 1; Jones Beach Blvd. Estate, Inc., v. Moses, 268 N. Y. 362; Weiner v. Valentine, 17 N. Y. Supp. [2d] 355; 260 App. Div. 999.) The courts below correctly held that the police commissioner has no power under section 435 of the New York City Charter or otherwise, to promulgate regulations prohibiting buses from substantial .areas in the borough of Manhattan. (Beekman v. Third Avenue R. R. Co., 153 N. Y. 144; Matter of McAneny v. Board of Estimate, 232 N. Y. 377; People ex rel. Simon v. Bradley, 207 N. Y. 592; Peace v. McAdoo, 46 Misc. Rep. 295; 110 App. Div. 13; Eighth Ave. Coach Corp. v. City of New York, 286 N. Y. 84; People v. Weisberger, 282 N. Y. 1; Matter of Lyons v. Prince, 281 N. Y. 557; Green Point Sav. Bank v. Board of Zoning Appeals, 281 N. Y. 534; 309 U. S. 633; Matter of Small v. Moss, 279 N. Y. 288; Matter of Goelet v. Moss, 248 App. Div. 499; 273 N. Y. 503.) The courts below correctly held that the police regulations in suit violate both the Federal and State Constitutions. (Sprout v. City of South Bend, 277 U. S. 163; Adams Express Co. v. City of New York, 232 U. S. 14; People v. Horton Motor Lines, 281 N. Y. 196; O’ Kane v. State of New York, 283 N. Y. 439; Matter of Edwards v. Murdock, 283 N. Y. 529; Eighth Ave. Coach Corp. v. City of New York, 286 N. Y. 84; City of Buffalo v. Chadeayne, 134 N. Y. 163; Arverne Bay Constr. Co. v. Thatcher, 278 N. Y. 222; People v. Calvar Corp., 286 N. Y. 419; Truax v. Corrigan, 257 U. S. 312; Kentucky Finance Corp. v. Paramount Auto Exchange Corp., 262 U. S. 544; People v. Cohen, 272 N. Y. 319; Darweger v. Staats, 267 N. Y. 290; Matter of Seignious v. Rice, 273 N. Y. 44.)

      Charles R. Barrett, John N. Regan and Edward G. Bathon for Bowery Savings Bank et al., respondents.
    The Charter of the City of New. York confers no power upon the defendant to prohibit traffic. (Peace v. McAdoo, 110 App. Div. 13; Matter of Seignious v. Rice, 273 N. Y. 44; Matter of Small v. Moss, 279 N. Y. 288; Matter

      of Lyons v. Prince, 281 N. Y. 557.) Enforcement of the regulations would nullify plaintiffs’ certificates of occupancy and vested property rights without due process of law. (Drennan v. Smith Valley Realty Corp., 211 App. Div. 796; Arverne Bay Constr. Co. v. Thatcher, 278 N. Y. 222.) The regulations deny to the plaintiffs the equal protection of the laws guaranteed by the Fourteenth Amendment to the Constitution of the United States and by section 11 of article 1 of the Constitution of the State of New York. (Southern R. Co. v. Greene, 216 U. S. 400; Smith v. Cahoon, 283 U. S. 553; People v. Cohen, 272 N. Y. 319; People v. Kuc, 272 N. Y. 72.)

      William I. Hart and. John F. Elsaesser for Dry Dock Savings Institution, respondent.
    Reliance upon a duly issued certificate of occupancy creates a vested property right of which this plaintiff must not be deprived except by due process of law. (City of Buffalo v. Chadeayne, 134 N. Y. 163; New York State Investing Co. v. Brady, 214 App. Div. 592; People ex rel. Lodes v. Department of Health, 189 N. Y. 187; Rice v. Van Vranken, 225 App. Div. 179; 255 N. Y. 541; Matter of Edwards v. Murdock, 283 N. Y. 529; Eighth Avenue Coach Corp. v. City of New York, 286 N. Y. 84.) The regulations are not traffic regulations, but are zoning regulations as to which the police commissioner has no power whatsoever. (Matter of Goelet v. Moss, 248 App. Div. 499; 273 N. Y. 503; New York State Investing Co. v. Brady, 214 App. Div. 592; City of Buffalo v. Chadeayne, 134 N. Y. 163; Best & Co. v. Village of Garden City, 247 App. Div. 893; 273 N. Y. 564; People ex rel. Lodes v. Dept. of Health, 189 N. Y. 187; Town of Harrison v. Sunny Ridge Builders, Inc., 170 Misc. Rep. 161.) The regulations constitute an unreasonable, arbitrary and capricious exercise of the police power by the defendant. (Cherubino v. Meenan, 253 N. Y. 462; Peace v. McAdoo, 110 App. Div. 13; Eighth Avenue Coach Corp. v. City of New York, 286 N. Y. 84; Matter of Small v. Moss, 279 N. Y. 288; Matter of Seignious v. Rice, 273 N. Y. 44; Matter of Picone v. Commissioner of Licenses, 241 N. Y. 157; Matter of Smith v. Morgan, 253 App. Div. 239.)

      David T. Wilentz, Attorney-General (John F. Bruther of counsel), for State of New Jersey, amicus curiæ.

   Lehman, Ch. J.

Congestion of the arteries of travel in some districts of the city of New York creates serious traffic problems. The only provision in the New York City Charter (effective Jan. 1, 1938) in which the Legislature has, in express terms, delegated to any officer or board specific authority to adopt regulations or ordinances calculated to relieve this serious condition and to solve the difficult problem is contained in section 435. That section provides in part: The police department and force shall have the power and it shall be their duty to * * * regulate, direct, control and • restrict the movement of vehicular and pedestrian traffic for the facilitation of traffic and the convenience of the public as well as the proper protection of human life and health * * *. The commissioner shall make such rules and regulations for the conduct of pedestrian and vehicular traffic in the use of the public streets, squares and avenues as he may deem necessary * * *. The violation of such rules and regulations shall be triable by a city magistrate and punishable by not more than thirty days’ imprisonment, or by a fine of not more than fifty dollars, or both.”

The traffic congestion is caused by vehicles of every kind which use the streets in the crowded parts of the city. Private passenger automobiles, public taxicabs, trucks and delivery wagons, passenger buses operating under a franchise and passenger buses engaged in interstate commerce and operating without a franchise, horse-drawn vehicles and automotive vehicles, vehicles used for pleasure and vehicles used for gain — all use the streets of the city and contribute to the congestion. In attempted exercise of the powers conferred upon him by the Charter the Police Commissioner has, from time to time, made rules and regulations for the conduct of traffic which have been confined to one class of vehicles or another. Some regulations have applied only to buses operated in interstate commerce and in these regulations the Commissioner has at times differentiated between long haul ” and “ short haul ” buses. By thesel'Yegulations the operation of buses engaged in interstate commerce has been confined to certain specified streets in Manhattan. 11 Long haul ” buses have not been permitted to make street stops ” in order to pick up or to discharge passengers. Such buses must use terminals on private property and there take on and discharge passengers. These regulations have not heretofore been challenged by owners of property or by operators of buses. Even now the authority of the Police Commissioner to make such regulations is not seriously challenged, and perhaps could not be successfully challenged.

In June, 1940, the Police Commissioner, in attempted exercise of the power conferred upon him by the Charter, adopted a new traffic ordinance or code of regulations superseding the older regulations and containing new provisions under which buses operating in interstate commerce are entirely excluded from specified areas in the borough of Manhattan, including the mid-town section,” approximately five miles in length and more than a mile in width, in which the best-known shops and theatres and many of the largest office buildings, apartment houses, railroad stations, museums, educational establishments and other important private and public buildings, are situated. Under that traffic code private property within that district improved for use as bus terminals could not be used for that purpose. Promptly the owners and mortgagees of these terminals and a system of interstate buses ” which leases a terminal there brought actions to enjoin the Police Commissioner from enforcing the provisions of the new ordinance or regulation, and for an adjudication that they are void. The actions so brought have been consolidated.

After a long trial, judgment was rendered declaring that some provisions are not rules and regulations which regulate, direct, control, or restrict the movement of vehicular traffic for the facilitation of traffic or the convenience of the public or the proper protection of human life and health within the meaning of Section 435 of the New York City Charter.” In addition the judgment declares that these same provisions are “ unconstitutional, illegal, invalid and void ” on various other grounds. Some of the provisions which have been declared illegal and void were, at least in substance, included in the superseded traffic regulations which the operators of interstate buses obeyed without challenge and which do not prejudice the owners of the bus terminals. As we have said, these provisions are not seriously challenged even now and the court should not in this action' have passed upon their validity. Upon this appeal we are concerned only with the provisions which exclude interstate buses from the midtown section and prohibit the use by such buses of terminals in those districts and with an incidental regulation requiring the operators of such buses to furnish reports to the Police Commissioner.

Though both sides presented much evidence relevant if at all only upon the question of whether the provisions of the traffic code are reasonably calculated to relieve traffic conditions and whether the resulting restrictions upon interstate commerce and upon the use of property violate provisions of the Constitution of the State of New York and the Constitution of the United States, yet no question of whether these provisions are reasonable or whether they violate provisions of the Constitution can arise unless a regulation which denies to interstate buses access to the streets of a large congested section and prevents the use of property there for a terminal is a regulation for the conduct of * * . * vehicular traffic ” and calculated to regulate,, direct, control and restrict the movement of vehicular * * * traffic ” within the meaning of section 435 of the Charter. Unless it is such a regulation no authority to make it has been conferred upon the Police Commissioner and it is void even though it may not be unreasonable. If, on the other hand, the power delegated to the Police Commissioner to make rules and regulations for the conduct of vehicular traffic is so broad that it authorizes the Police Commissioner in the exercise of discretion to determine that access to a congested district may be denied to specified classes of vehicles which are operated for gain, then many of the arguments that the regulations are unreasonable would have little weight. Ordinances which are in some respects analogous, though perhaps none have been so drastic,' have been generally sustained in other jurisdictions. “ The courts may not invade the field of discretion conferred by law upon an administrative officer.” (Matter of Small v. Moss, 279 N. Y. 288, 298.) Nor may the courts lightly set aside as an invasion of rights guaranteed by our constitutions, statutes, ordinances and regulations which for the common welfare place restrictions upon business activities and the use of property or which limit the right of access from such property to the street on which it abuts.

It is clear that the words “ conduct of vehicular traffic ” in the charter refer to the movement of vehicles upon the city streets. The power to regulate and restrict the movement of traffic which has been conferred by the Charter upon the Police Commissioner may properly be given a broad construction in order to carry out the manifest intention of the Legislature to confer upon the Commissioner a power which can be effectively used for the public welfare. So in People v. Rubin (284 N. Y. 392) this court held that to regulate the movement of traffic includes the power to regulate the temporary stopping of the movement of vehicles and parking ” upon the street. Here, however, the Police Commissioner has gone further. To regulate ” traffic within a large congested district he has completely denied to one class of vehicles access to the district. He has not merely said that they must move from the point where they enter the city to their destination along those streets upon which they will, in the opinion of the Police Commissioner, cause least impediment to the movement of other vehicles, but he has denied them the right to pass even along streets which he might select to their terminals upon private property which comply with every requirement attached by law to the use of property as a bus terminal. Doubtless the exclusion of some vehicles from the streets of a district will tend to relieve congestion there, and to facilitate the movement of the other vehicles permitted to use the street, but in our opinion, no reasonable construction of section 435, however broad, would justify the inclusion in the power to regulate traffic of an incidental power to exclude completely from a large and important district of the city the movement of buses used for the carriage of passengers in interstate commerce and thereby deny to such buses the right to use, as a terminal, private property within that district.

We do not upon this appeal consider whether legislative power has been delegated to the Council which would enable it to adopt ordinances which would relieve the congestion in the streets of New York city by excluding some vehicles from designated districts. We accept, without examination, the contention of the city that unless we conclude that under section 435 the Police Commissioner has power to make the challenged regulations, the city will be denied power to cope effectively with the traffic problem. Arguments based upon such contentions must be addressed to the Legislature. The courts may give to a statute a broad construction required to effectuate the legislative intent. The courts may not, by forced construction of a statute, confer upon an officer of the city a power denied to him by the Legislature.

The regulation promulgated by the Police Commissioner is void so far as it transcends the authority vested in him. We cannot now pass upon the question whether a similar regulation or ordinance passed by an officer or body to whom adequate power has been delegated and in whom discretion has been confided by the Legislature would be' valid. The judgment of the Appellate Division and of Special Term should be modified by striking therefrom paragraphs numbered 3, 4, 5, 6, 7, 8, 9, 10, 11, 12 and 13 and those parts of the remaining paragraphs which adjudicate that any provisions of the traffic regulations are void and that an injunction should issue restraining the Police Commissioner from enforcing them, except those which prohibit operation of long haul ” buses along streets and avenues designated for that purpose by the Police Commissioner within the mid-town district ” to the “ off-street ” terminals in that district used by them, and asjmodified affirmed, with one bill of costs to the respondents.

The judgments should be modified in accordance with this opinion and as so modified affirmed, with one bill of costs to the respondents.

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

Judgment accordingly.


text:
    In the Matter of Flushing Hospital and Dispensary, Respondent. Charles H. Campbell et al., Appellants; L. Gale Hunter et al., Respondents.

      Argued March 5,1942;
    decided April 23, 1942.

      George Kent Weldon and William A. Michel for appellants
    The lapse of eight years before objecting to the validity of the 1933 by-laws is untimely and, therefore, any invalidity is waived. (Matter of George v. Holstein-Friesian Assn., 238 N. Y. 513.) The amendments to the by-laws adopted at the March 3, 1941, meeting pursuant to article 5 of the by-laws of 1933, are wholly reasonable and consistent with applicable statutory law. (Kent v. Quicksilver Mining Co., 78 N. Y. 159; Matter of Farrell, 205 App. Div. 443.) The amendments to the by-laws having been properly adopted at the March, 1941, meeting in accordance with the provisions of the existing by-laws, the election of the trustees and officers was valid. (Lewis v. Matthews, 161 App. Div. 107; Matter of George v. Holstein-Friesian Assn., 238 N. Y. 518.)

      E. Douglas Hamilton and E. Crosby Kindleberger for Flushing Hospital and Dispensary, respondent.
    The amendments to the by-laws purportedly passed at the meeting of March 3, 1941, increasing the board, permitting nominations from the floor, authorizing the election of officers by members, and authorizing the president to fill vacancies in the board, were illegal and void. (Matter of Sea Gate Assn., 241 App. Div. 699; Matter of Mount Sinai Hospital, 250 N. Y. 103; Cartan v. Father Matthew United Benevolent Society, 3 Daly, 20; People ex rel. Gray v. Medical Society of the County of Erie, 24 Barb. 570; People ex rel. Muir v. Throop, 12 Wend. 183; Weiler v. Equitable Aid Union, 92 Hun, 277; Grossmeyer v. District No. 1 Independent Order B’nai Berith, 34 Misc. Rep. 577; 70 App. Div. 90; 174 N. Y. 550; Pulford v. Fire Department of Detroit, 31 Mich. 458; People v. Crockett, 9 Cal. 112; Matter of Empire State Supreme Lodge, 118 App. Div. 616.) The election at the meeting of March 3, 1941, was illegal. (Matter of George v. Holstein-Friesian Assn., 238 N. Y. 513; Matter of Fierman v. Rose,
      175 Misc. Rep. 102; Mitchell v. Forest City Printing Co., 107 Misc. Rep. 709; 187 App. Div. 743; Matter of Hammond Light & Power Co., 131 Misc. Rep. 747; 224 App. Div. 684.)

      John Holley Clark, Jr., and E. Crosby Kindleberger for L. Gale Hunter et al., respondents.
    The courts below were right in holding that the amendments purportedly adopted at the meeting on March 3, 1941, were improper and illegal. They were equally sound in declaring unreasonable and void on its face the amendatory provision of the 1933 by-laws and in holding that the amendatory provision of the 1933 by-laws was not itself properly or legally adopted. (Cartan v. Father Matthew United Benevolent Society, 3 Daly, 20; Matter of Mount Siani Hospital, 250 N. Y. 104; People ex rel. Muir v. Throop, 12 Wend. 183; People ex rel. Gray v. Medical Society of the County of Erie, 24 Barb. 574; Weiler v. Equitable Aid Union, 92 Hun, 277; Kent v. Quicksilver Mining Co., 78 N. Y. 159; Matter of Empire State Supreme Lodge of D. & H., 118 App. Div. 616; Danzig v. Lachs, 235 App. Div. 189; Matter of Fierman v. Rose, 175 Misc. Rep. 102.)

      Henry C. Frey for Charles H. Roberts et al., interveners-respondents.
    The plan for the administration of the hospital as provided by the by-laws was definite, comprehensive and fair. (Matter of Young v. Jebbett, 213 App. Div. 774; Matter of Bogart, 215 App. Div. 45; Matter of O’Shea [Sea Gate Assn.], 241 App. Div. 699.) The purported election of pseudo trustees not nominated according to the by-laws was such a distortion of the plan of the institution as could ultimately destroy it. (Cartan v. Father Matthew United Benevolent Society, 3 Daly, 20.) The nominees of the newcomers were never eligible for election as trustees. (Matter of O’Shea [Sea Gate Assn.], 241 App. Div. 699; Kent v. Quicksilver Mining Co., 78 N. Y. 159; Matter of Mount Siani Hospital, 250 N. Y. 103; Weiler v. Equitable Aid Union, 92 Hun, 277.)
   Lehman, Ch. J.

The notice of annual meeting of Flushing Hospital and Dispensary Corporation to be held in March, 1933, stated: “ The annual meeting of the Flushing Hospital and Dispensary Corporation will he held in the board room of the hospital on Monday, March 6th, 1933 at 8 P. M. for the election of six trustees, the adoption of the complete new set of by-laws and for such other business as may properly be brought before the meeting.” The minutes of the meeting show that a resolution was then unanimously adopted that the existing by-laws of the hospital be repealed and that the new by-laws be officially adopted in their place.” The affairs of Flushing Hospital and Dispensary have been administered since that date in accordance with the new by-laws ” thus “ officially adopted,” with such amendments as may have been adopted thereafter. The validity of these by-laws was never challenged by any member until after the annual meeting held in 1941. The superseded by-laws had a provision that they might be amended “by a two-thirds vote of those present at any annual or special meeting of this corporation, provided notice of such amendment be published with the call for meeting.” In the new by-laws there was a provision that the by-laws might be amended by similar vote although the notice of such meeting shall not have contained any reference to such proposed amendment.”

The new by-laws further provided, among other things, that the Board of Trustees shall- consist of eighteen members of the corporation, and shall be divided into three classes of six each [increased to seven each by an amendment adopted at the annual meeting held in 1937]; each class to serve for a term of three years or until the election of their successors.” A committee appointed by the board of trustees was empowered by the by-laws to nominate persons for trustees and to file a list of the persons nominated with the secretary of the corporation, not less than three weeks before the annual meeting. Then, in accordance with the by-laws, “ Nominations for the office of Trustee in addition to the names certified by such Nominating Committee may be filed with the Secretary of the corporation not less than two weeks before the annual meeting, provided such nominations be in writing and endorsed by not less than fifteen members of the corporation. * * * No person, except those whose names have been filed and posted as provided in this subdivision, shall be eligible for election.”

A nominating committee appointed in accordance with the by-laws filed the list of the persons it had nominated for trustees more than three weeks before the annual meeting held in March, 19'11 No other nominations were filed. Thus under the existing by-laws the election of the persons nominated by the committee was assured. Nevertheless, a group of members of the corporation, not satisfied in all respects with the manner in which the affairs of the hospital were conducted, attended the meeting intent upon electing other persons as trustees who would thereafter control its affairs. Since they could not do so under the existing by-laws, they planned, to carry out their purpose, to propose amendments to the by-laws which would provide that nominations for the office of trustee might be made at any annual meeting of the Corporation commencing with the annual meeting of March, 1941, said nominations to have equal standing with nominations already made to be voted on at said meeting,” and that the board of trustees be increased from twenty-one members to twenty-seven members — fourteen to be elected at the March, 1941, annual meeting. Other amendments were at the same time proposed which were calculated to make more secure and complete the control of the management of the affairs of the corporation by the fourteen members of the board to be elected at the annual meeting in 1941, and to make more difficult, if not impossible, any further amendment of the by-laws through which control might be wrested from them.

Annual meetings of old-established benevolent corporations, where only one group of candidates has been nominated and no others* can be nominated, where there has been no public criticism of the management, and where there is no reason to expect that any controversial resolutions will be proposed, are often attended by few members. Under the by-laws of the hospital corporation seven members are sufficient to constitute a quorum at an annual meeting. The by-law which provided that nominations must be made and filed at least two weeks before an annual meeting was calculated to give to the members of the corporation the opportunity to reject candidates not approved by them. The proposed amendment of the by-laws was calculated to deprive members absent from the annual meeting of the corporation of opportunity to approve or disapprove candidates, though their failure to attend may have been due to approval of the candidates who had been nominated and justified reliance upon the provisions of the by-laws which barred other nominations. The amended by-laws were proposed in the expectation that through them the group who came prepared to propose and pass them would gain control of the election and, through trustees then elected, would control the affairs of the hospital. The expectation of control of the election was realized. Without protest or dissent the amended by-laws were adopted; new nominations were made at the meeting and the persons so nominated were elected as trustees and then constituted a majority of the trustees.

Upon the application of a member of the corporation claiming to be aggrieved by the election, an order was entered after a hearing at Special Term, adjudging “ illegal, invalid and void ” the provision of the “ new by-laws ” adopted at the annual meeting in 1933 which authorized future amendment of the by-laws at any meeting of members “ although the notice of such meeting shall not have contained any reference to such proposed amendment.” It necessarily followed that the amendments adopted in 1941 were also illegal, invalid and void and that the election of persons nominated at that meeting must be vacated or disregarded. The order so provides. It contains also other provisions to which brief reference will be made hereafter.

The new by-laws ” adopted in 1933 are void, it is said, in so far as they amend the old by-laws because no sufficient notice of the proposed amendments was given. The general notice that “ new by-laws ” would be proposed was, it is said, insufficient. Even if it were true that the new by-laws were adopted without proper notice they would still be valid, if all the members of the corporation waived such notice. For seven years the affairs of the corporation were, as we have said, administered in accordance with these new by-laws ” and at no time did a member protest or challenge their validity. Waiver of irregularity is, in these circumstances, the reasonable implication which must be drawn from failure to object. (Matter of George v. Holstein-Friesian Association, 238 N. Y. 513.) Nor can we say that on other grounds the amended by-law, dispensing with the requirement of notice, is void. A provision in the by-laws authorizing amendment at a meeting duly called though no previous notice of the proposed amendment was given may be unwise; that may depend on varying circumstances. A court may not say in this case that it is so unreasonable or unfair that it is beyond the power of the members to adopt, especially where no member has objected.

Other considerations, nevertheless, sustain the construction of the courts below that the amendments adopted at the meeting in 1941 are void and that the election held pursuant thereto must be set aside. The method used in the adoption or amendment of a by-law may be legal, but the courts are not constrained to sanction an unlawful result though achieved by legal means. Neither the officers nor a majority of the members of a benevolent corporation may exercise the powers confided in them in manner which is unfair, oppressive or manifestly detrimental to the interests of the corporation. Changes in by-laws calculated to give to a group an unreasonable or unfair advantage, which are not adapted to the purposes of the corporation, are void. Implicit in all powers conferred upon the officers or the members of a benevolent association or corporation formed for communal service is the qualification that the power shall be exercised in manner calculated to promote the interests and purposes of the corporation. (People ex rel. Muir v. Throop, [1834] 12 Wend. 183; People ex rel. Gray v. Medical Society, 24 Barb. 570; Weiler v. Equitable Aid Union, 92 Hun, 277.)

Measured by such standards the challenged amendments to the by-laws are patently invalid. That is true though the group which by amendment to the by-laws sought to control the election and thereafter to control the affairs of the corporation may have acted with unselfish motives and in the belief that the new directors would promote the best interests of the corporation and the community. It is true because the amendment of the by-laws was an essential step in a plan conceived and carried out for the purpose of unfairly and unreasonably depriving other members of the opportunities assured to them by the existing by-laws to approve or reject candidates for office after the members had received notice of all nominations. That renders all the’ amendments invalid though perhaps some amendments might have been valid if they had not been proposed and passed as indivisible parts of a single plan.

The order, made upon the application of the petitioner, set aside the invalid election but did not provide for a new election by the members of the corporation. Instead it declared that three of the candidates who had been nominated by the committee were elected though they had not received a majority of the votes cast and that the board of trustees was authorized to fill the vacancies caused by the withdrawal of the names of four candidates similarly nominated.

There may be doubt whether the court had power in a proceeding initiated under section 25 of the General Corporation Law (Cons. Laws, ch. 23) to confirm the authority of the board of trustees to fill the four vacancies. The persons chosen were at least the facto officers but their successors must be chosen at the next annual election at which all vacancies then existing must be filled.

The orders should be modified to provide for such election at the next annual meeting and by striking out the adjudication that the amendment to the by-laws made at the annual meeting of 1933 is invalid, and as so modified affirmed, with one bill of costs to the respondents. (See 288 N. Y. 735.)

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

Ordered accordingly.


text:
    Martin J. Bamman, Appellant, v. Frank Erickson, Respondent.

      Argued March 16, 1942;
    decided April 23, 1942.

      William T. Gallagher and William D. Cunningham for appellant.
    The remedy of section 994 of the Penal Law is available as a matter of law. The court erred in charging that it depended upon the continuity and extent of the transactions. (People ex rel. Collins v. McLaughlin, 128 App. Div. 599; People ex rel. Sterling v. Sheriff, 60 Misc. Rep. 326; People v. Stedeker, 175 N. Y. 57.)

      Martin W. Littleton and Solomon Goodman, for respondent.
    The remedy prescribed by section 994 of the Penal Law is available only to casual bettors. (Dupper v. Rogan, 254 App. Div. 747; Watts v. Malatesta, 262 N. Y. 80; People v. Bright, 203 N. Y. 73.)
   Lehman, Ch. J.

The plaintiff brought an action as assignee of John W. Austin to recover almost two hundred thousand dollars which, it is alleged, Austin paid to the defendant as “ wagers ” upon horse races. At the trial it was conceded that the defendant is a professional gambler engaged in bookmaking and accepting wagers upon the outcome of horse racing and other events.” He operated through various employees located at various offices * * * or other places for the transaction of such business maintained by the defendant within the city of New York.” It was also conceded “ that the said Austin made certain bets and wagers directly and indirectly with the defendant.” Austin produced at the trial checks and money orders in the sum of $17,879.90, which were endorsed by the defendant and which, the defendant did not dispute, were paid upon wagers Austin had previously placed with the defendant and had lost. Austin produced other evidence to show that he had made, in addition, much larger payments to the defendant.

All wagers, bets or stakes, made to depend upon any race, or upon any gaming by lot or chance, or upon any lot, chance, casualty, or unknown or contingent event whatever, shall be unlawful.” (Penal Law, § 991.) The winner of a wager cannot recover the amount of the wager from a loser who chooses to welch. (Penal Law, §§ 991, 992, 993.) The loser may recover from the winner any voluntary payments he has made. (Penal Law, § 994.)

That section provides: “ Any person who shall pay, deliver or deposit any money, property or thing in action, upon the event of any wager or bet prohibited, may sue for and recover the same of the winner or person to whom the same shall be paid or delivered * *_*.” Though the plaintiff has proven conclusively that his assignor has paid large sums to a professional bookmaker upon prohibited wagers made with the bookmaker, yet recovery has been denied to the plaintiff on the ground that the statute was intended to permit recovery of moneys paid upon bets or wagers only by “ casual bettors ” and the jury has found that the plaintiff was not a casual bettor.”

If a bettor who is a steady customer of professional gamblers, who resorts to pool rooms day after day, to whom gambling has become a passion so irresistible that he will even steal to obtain the money to wager; who admits that he is an habitual ” bettor — if such a man has no right under the statute to recover the moneys he has paid upon wagers placed with a professional gambler in pool rooms and other places maintained for the transaction of an organized and systematic business of bookmaking and accepting wagers, then Austin had no cause of action which he could assign to this plaintiff. Those facts are established conclusively but other facts, too, must be considered. Austin was a graduate of the college and the law school of a great university and the junior member of an old and respected firm of lawyers. The evidence shows that he was steadily engaged in the practice of law, was at his office on practically every business day when not prevented by illness ” and that he handled the legal matters in which he was retained by clients or which were assigned to him by the firm.” He maintained no place for the transaction of an organized and systematic business of gambling. He did not engage in pool-selling, bookmaking, nor as stakeholder in connection with any horse racing events, or other form of gambling.” In brief, though he gambled habitually, though he visited pool rooms almost daily, though, at “ a pool room, office or other place of business maintained by defendant Erickson,” he paid upon bets or wagers large sums of money not belonging to him, he did not gamble or conduct a gambling business in manner which would subject him to criminal prosecution under any provision of the Penal Law.

The provisions of the Penal Law are intended to discourage and repress gambling in all its forms. Wagering and betting are prohibited but the penalty visited upon a person who practices the profession of a common gambler,” who conducts a systematic, organized business of pool-selling, bookmaking or accepting bets from others is very different from the penalty visited upon the bettor who stakes his money upon a chance. The professional gambler is guilty of a crime; his customer performs an act which the Constitution and statute have stigmatized as vicious and have declared unlawful, but the law draws a distinction between a criminal act and yielding to a vice. (People v. Stedeker, 175 N. Y. 57; Watts v. Malatesta, 262 N. Y. 80.) It does not treat alike the spider who spins the web and the fly enmeshed in it.

In this case the trial judge charged that only a “ casual bettor ” may recover his losses from a professional gambler under the provisions of section 994 of the Penal Law and that if the plaintiff’s assignor made bets and wagers with such frequency and regularity that they take him out of the class of a casual better and place him in the professional class, in pari delicto with the defendant,” then the plaintiff cannot recover. Nothing in the; [statute nor in any opinion or decision of this court construing the statute supports the rule stated in the charge. This court has pointed out that in order to discourage betting the Penal Law, which prohibits betting, makes recovery by a winner impossible upon default by the loser (Penal Law, §§ 991 and 992),” and the same statute compels the return to the loser of voluntary payments made by him (Penal Law, §§ 994 and 995).” If recovery of gain from the illicit transaction is sought those “ in pari delicto ” are denied access to the court; but under the statute the court is open to a loser who seeks to compel the return of the winner’s ill gotten gains, though voluntarily paid and though both winner and loser are in pari delicto. (Watts v. Malatesta, supra, p. 82.) Only where a professional gambler who has committed a crime asserts a right under the statute against a customer who has committed no crime, does doubt about the scope and application of the statute arise. Such a question was presented in the Watts case and there the court decided that even though in section 994 the Legislature had, in terms, decreed that “ Any person who shall pay * * * any money * * * upon the event of any wager or bet prohibited, may sue for and recover the same of the winner,” yet a professional bookmaker who is guilty of a crime may not recover money paid to a customer who is guilty of an act which is unlawful but which is not criminal. The court, with the concurrence of a majority of the judges, went even further and held that it followed logically that the professional gambler may not even offset moneys paid_to a customer upon bets, where the customer was the winner, against moneys paid by the customer upon bets where the professional gambler was the winner. Upon that point there was division of opinion in the court; there was no division that under the statute the customer who has committed no crime may recover, under the statute, moneys paid to a professional gambler who has committed a crime.

There is no suggestion in the opinion that a customer who is an inveterate, regular bettor, the weak victim of the gambling passion or habit, commits a' crime or that the defense that the parties are in pari delicto may be interposed in an action brought under the provisions of section 994. The professional gambler was denied right to recover or to offset his losses against his gains, as the court pointed out, because “ in the eye of the law the professional gambler and his customer do not stand on the same plane. They are not in pari delicto.”,. The law offers means of defense to the helpless fly, however foolish — it will not extend its aid to the designing spider.

In the majority opinion the “ fly ” is, it is true, referred to as a “ casual bettor.” That might, in other context, mean an individual who bets only occasionally and at irregular times in distinction from an individual who bets habitually and regularly. The opinion makes clear that is not the distinction the court intended. The person described as a casual bettor ” is an individual who has not been guilty of “ betting and gambling organized and carried on as a systematic business,” in manner which the law “ makes criminal.” After pointing out that distinction the court said curb the professional with his constant offer of temptation coupled with ready opportunity, and you have to a large extent controlled the evil.” The law does not deny recovery to the constant object of the constant offer of temptation.”

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

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

Judgments reversed, etc.


author: Per Curiam.

text:
    Eugene Van Voorhis, Respondent, v. County of Monroe, Appellant.
    Argued March 6, 1942;
    decided April 23, 1942.

      Harry Rosenberg for appellant.
    The complaint should be dismissed for lack of jurisdiction. (People ex rel. Powder Co. v. Feitner, 41 App. Div. 544; People ex rel. Bliss v. Feitner, 72 App. Div. 45; Oak Hill Country Club v. Town of Pittsford, 264 N. Y. 133.) The assessment has been properly levied and made a lien upon the whole parcel. (People ex rel. N. Y. C. & H. R. R. R. Co. v. Priest, 150 App. Div. 19; 206 N. Y. 274; People ex rel. Lehigh Valley R. R. Co. v. Burke, 221 App. Div. 248; People ex rel. Two Lakes Corp. v. Mathews, 151 Misc. Rep. 294; Matter of Wadhams, 249 App. Div. 271; People ex rel. Codd v. City of Buffalo, 122 Misc. Rep. 102.)

      Robert F. MacCameron for respondent.
    Neither the town nor county authorities had any jurisdiction to place an assessment upon the land outside the sewer district now owned by the plaintiff for the expense of the construction of the sewer. (Elmhurst Fire Co. v. City of New York, 213 N. Y. 87; Dun & Bradstreet, Inc., v. City of New York, 276 N. Y. 198; Stuart v. Palmer, 74 N. Y. 183; Norwood v. Baker, 172 U. S. 269; People ex rel. N. Y. C. R. R. Co. v. Limburg, 283 N. Y. 344; Matter of Long Island R. R. Co. v. Hylan, 240 N. Y. 199; Sharp v. Speir, 4 Hill, 76; Saranac Land & Timber Co. v. Roberts, 125 App. Div. 333; 195 N. Y. 303; Miller v. City of Oneida, 153 Misc. Rep. 438.)
   Per Curiam.

The owner of real property may reasonably assume that it will not be affected by any assessment which may appear upon the assessment rolls of a district other than that in which his land is situated. The short period of limitation contained in section 239 of the Town Law (Cons. Laws, ch. 62) has no application to an assessment levied against real property appearing upon the assessment rolls of a district in which the property is not situated and levied by assessors with jurisdiction confined to such district. That was not the situation in Oak Hill Country Club v. Town of Pittsford (264 N. Y. 133) and in the cases therein cited.

The order should be affirmed and judgment absolute ordered against appellant on the stipulation, with costs in all courts.

Lehman, Ch. J., Loughran, Finch, Lewis and Desmond, JJ., concur; Rippisy and Conway, JJ., taking no part.

Ordered accordingly.


text:
    In the Matter of Delaware, Lackawanna and Western Railroad Company, Appellant, against Albert C. Fengler et al., Defendants, and Joseph V. O’Leary, as Comptroller of the State of New York, et al., Respondents.
    Argued March 18, 1942;
    decided April 23, 1942.

      Basil B. Aylesworth for appellant.
    The procedure for payment of “ expenses of acquisition ” of necessary lands by condemnation, as provided in the Elimination Act (L. 1928, ch. 825) and as established and followed by the State executive departments and the Syracuse Grade Crossing Commission, includes the allowance of such expenses by the court on application for final order in the same condemnation proceeding. (Matter of State of New York, 207 N. Y. 582; Matter of Canal & Walker Streets, 12 N. Y. 406; Bangs v. Duckinfield, 18 N. Y. 592; Matter of Cooper, 22 N. Y. 67; Bartlett v. Spicer, 75 N. Y. 528.) Section 4 of chapter 289 of the Laws of 1939 was not intended to transfer to the Public Service Commission the jurisdiction of the courts and the Syracuse commission to allow and approve expenses of acquisition of lands in Syracuse by condemnation proceedings under and pursuant to the 1928 Act. The procedure for payment of expenses of acquisition by condemnation under the jurisdiction of the courts, as provided in the 1928 Act, was not abrogated or repealed by section 4 of the 1939 statute but was continued in full force and effect by sections 2 and 6 thereof. (Matter of Kolb v. Holling, 285 N. Y. 104; Matter of State of New York, 207 N. Y. 582; Matter of City of New York

      [East River Park], 224 N. Y. 697; Matter of Board of Transportation of New York, 272 N. Y. 52; Smith v. People, 47 N. Y. 330; O’Gorman v. Mayor, 67 N. Y. 486; Carroll v. McArdle, 216 N. Y. 232.) Reasonable fees of attorneys specially employed by the railroad company to conduct condemnation proceedings required by the Elimination Act to be brought and conducted by the railroad company are a necessary part of the expense of such acquisition of lands, which the statute provides shall be deemed a part of the cost of elimination payable out of the elimination fund. (Triple Cities Constr. Corp. v. Byers Machine Co., 172 Misc. Rep. 519; 259 App. Div. 451; Matter of Turrell, 63 Misc. Rep. 502; Matter of Commissioners of Palisades Park, 83 Misc. Rep. 186; 164 App. Div. 957; People ex rel. Mosbacher v. Graves, 254 App. Div. 438; 279 N. Y. 793; Kornhauser v. United States, 276 U. S. 145; Chicago Dock & Canal Co. v. Commissioner, 84 Fed. Rep. [2d] 288; Foss v. Commissioner of Internal Revenue, 75 Fed. Rep. [2d] 326.)

      James C. Tormey, Corporation Counsel (Arthur M. Beach and John H. Walrath of counsel), for Syracuse Grade Crossing Commission, respondent.
    Neither appellant nor its attorneys were entitled to an allowance for legal services for conducting the condemnation proceeding, in the absence of specific statutory authority therefor. (Matter of School Street, 162 App. Div. 158; Matter of City of Brooklyn, 148 N. Y. 107; Matter of Low, 208 N. Y. 25; Matter of State of New York [Toll Bridge], 152 App. Div. 633; 207 N. Y. 582; Matter of Board of Water Supply, 158 App. Div. 116; 209 N. Y. 572; Matter of Rapid Transit R. R. Commrs., 197 N. Y. 81; Matter of Grade Crossing Commrs., 20 App. Div. 271; Matter of People of State of New York, 70 Misc. Rep. 72; Schneider v. Schneider, 36 Col. 518; North Carolina R. R. Co. v. Goodwin, 110 N. C. 175.) No statutory authority exists for allowance of the legal fees to appellant or its attorneys. (Matter of Kolb v. Holling, 285 N. Y. 104; Matter of Comrs. of Palisades Interstate Park, 166 App. Div. 443 ; 216 N. Y. 104; County of Erie v. Friedenberg, 221 N. Y. 389; Matter of Board of Water Supply, 158 App. Div. 116; 209 N. Y. 572; Matter of School Street, 162 App. Div. 158; Matter of City of Brooklyn, 148 N. Y. 107; Matter of Low, 208 N. Y. 25; Matter of N. Y. C. R. R. Co. v. Ferris, 255 App. Div. 112; 280 N. Y. 658; Matter of Town of Cheektowaga Grade Crossing, 259 App. Div. 141; 283 N. Y. 687.) Appellant acquired no rights to an allowance of the legal fees under chapter 289 of the Laws of 1939. (Matter of Kolb v. Holling, 285 N. Y. 104; Matter.of Town of Cheektowaga Grade Crossings, 259 App. Div. 141; 283 N. Y. 687.)

      John J. Bennett, Jr., Attorney-General (Irving H. Lessen of counsel), for Joseph V. O’Leary, as Comptroller of the State of New York, et al., respondents.
    Legal services rendered to a party
    obligated to pay a portion of the cost of grade crossing eliminations have never been allowed as a part of the total cost of such project. (Matter of Syracuse Grade Crossing Commission, 264 N. Y. Supp. 1023; 253 App. Div. 462.)
   Per Curiam.

Nothing in the statute authorizes the Supreme Court to determine in the condemnation proceedings as part of “ the judgment or award ” that reasonable compensation to attorneys is an “expense” of acquisition of land within the meaning of subdivision 1 of section 8 of the Syracuse Grade Crossing Act (L. 1928, ch. 825) or to direct payment of such expense out of state moneys. Even assuming that such compensation might in proper case be regarded as “ expense ” within the meaning of the statute, the plaintiff is not entitled to reimbursement from state moneys for such expense except “ on vouchers approved by the Syracuse Commission, after audit by and on the warrant of the comptroller,” as provided in subdivision 1 of section 7 of the Syracuse act. Chapter 289 of the Laws of 1939 has not changed that provision.

The order should be affirmed, without costs.

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

Order affirmed.


author: Loughran, J.

text:
    The People of the State of New York, Respondent, v. Loyal Blanchard, Appellant.
    Argued March 16, 1942;
    decided April 30, 1942.

      Maurice J. McCarthy, Jr., for appellant.
    The Board of Health of the City of New York is an administrative body without power to define a crime. The Legislature alone has this power. (Barker v. People, 3 Cow. 686; Lawton v. Steele, 119 N. Y. 226; 152 U. S. 133; People v. West, 106 N. Y. 293; People ex rel. Miller v. Ryder, 124 N. Y. 500; Rhodes v. Sperry & Hutchinson Co., 193 N. Y. 223; People v. Rosenthal, 197 N. Y. 394; People v. Persce, 204 N. Y. 397; People v. Ryan, 267 N. Y. 133; People v. Grant, 242 App. Div. 310; 267 N. Y. 508; People v. Shakun, 251 N. Y. 107; People v. Phyfe, 136 N. Y. 554; R. C. Com. v. G. T. W. R. R. Co., 179 Ind. 225; People v. Hislop, 77 N. Y. 331.) The Legislature cannot delegate the power to make and define a crime to any person, body or board, (Gardner v. Ginther, 232 App. Div. 296; 257 N. Y. 578; deAgostina v. Parkshire Ridge Amusements, Inc., 155 Misc. Rep. 518; People v. Grant, 242 App. Div. 310; 267 N. Y. 508; People v. Sullivan, 244 App. Div. 469; Darweger v. Staats, 243 App. Div. 380; 267 N. Y. 290; Cline v. Consumers Co-op. Gas & Oil Co., 152 Misc. Rep. 653; Lo Tempio v. City of Niagara Falls, 166 Misc. Rep. 338; People v. Ryan, 267 N. Y. 133; Field v. Clark, 143 U. S. 649; Matter of McNulty, 77 Cal. 164; Sutherland v. Miller, 79 W. Va. 796; Matter of Leslie, 87 Tex. Crim. Rep. 476; United States v. Grimaud, 220 U. S. 506; People ex rel. Lodes v. Department of Health, 117 App. Div. 856.) The Legislature may delegate to administrative boards the power to make rules and regulations under certain conditions, but never the right to make or define a crime. (Matter of Berger v. Quinn, 149 Misc. Rep. 545; Noyes v. Erie & Wyoming Farmers Co-op. Corp., 281 N. Y. 187; Matter of Hudson Valley Title & Mortgage Co. v. White, 256 App. Div. 393; Matter of Lyons v. Prince, 281 N. Y. 557; Matter of Kress & Co. v. Department of Health, 283 N. Y. 55; People ex rel. Kieley v. Lent, 166 App. Div. 550; 215 N. Y. 626.)

      William C. Chanler, Corporation Counsel (Stanley Buchsbaum and Paxton Blair of counsel), for respondent.
    The delegation of power to the Board of Health of the City of New York to adopt rules and regulations designed to preserve the health of the inhabitants of the city, the violation of which rules and regulations constitute a crime, is valid. (People ex rel. Cox v. Justices of the Court of Special Sessions, 7 Hun, 214; Polinsky v. People, 73 N. Y. 65; People ex rel. Lieberman v. Vandecarr, 175 N. Y. 440; 199 U. S. 552; Metropolitan Board of Health v. Heister, 37 N. Y. 661; Cleveland v. City of Watertown, 222 N. Y. 159; Village of Saratoga Springs v. Saratoga Gas Co., 191 N. Y. 123; Blue v. Beach, 155 Ind. 121; Brodbine v. Inhabitants of Revere, 182 Mass. 598; State v. Noyes, 30 N. H. 279; State v. Normand, 76 N. H. 541; Matter of Finegan v. Cohen, 275 N. Y. 432; Matter of Stubbe v. Adamson, 220 N. Y. 459; Grimmer v. Tenement House Department, 204 N. Y. 370.)
   Loughran, J.

This defendant appeals from an affirmance of his conviction of the offense of keeping unwholesome poultry contrary to section 148, regulation 27, of the Sanitary Code of the city of New York. The probative sufficiency of the People’s case is not disputed.

The Sanitary Code was formulated by the Board of Health of the city pursuant to authority conferred by the city charter. (Old New York City Charter, § 1172, L. 1901, ch. 466, as amd.; New Charter of the City of New York, effective Jan. 1, 1938, § 558.) The charter has long provided that “ any violation of the sanitary code shall be treated and punished as a misdemeanor.” (Id.) A like provision is made by Penal Law, section 1740, thus: “A person who wilfully violates or refuses or omits to comply with any lawful order or regulation prescribed by any local board of health or local health officer, is guilty of a misdemeanor.” Defendant’s point is that these enactments offend article III, section 1, of the State Constitution by delegating to a local health board the legislative power to define criminal offenses and to prescribe penal discipline therefor. This idea, we believe, mistakes the boundaries of settled categories.

Within limits that are to be' measured by tradition, the State may commit to local governments the power to regulate local affairs. The legislature in these cases is not regarded as delegating its authority, because the regulating of such local affairs as are commonly left to local boards and officers is not understood to belong properly to the State.” (1 Cooley on Constitutional Limitations [8th ed.], p. 390.) On that basis, the main business of safeguarding the public health has always of necessity been done by local boards or officers through sanitary by-laws or ordinances which have been accorded the force of law. (Metropolitan Board of Health v. Heister, 37 N. Y. 661, 670; Polinsky v. People, 73 N. Y. 65.) Consequently the Sanitary Code is to be taken to be a body of administrative provisions sanctioned by a time-honored exception to the principle that there is to be no transfer of the authority of the Legislature.

It is true that the substantive law-making power of the People is vested by the Constitution in the Legislature and cannot be delegated. It is also true that the definition of criminal offenses and the prescription of punishment therefor is part of that legislative power. (Matter of Mandel v. Board of Regents, 250 N. Y. 173, 176.) So, the Legislature has declared that no act or omission is a crime except as prescribed by statute. (Penal Law, § 22; People v. Knapp, 206 N. Y. 373, 380.) But there has been no infringement of these standards in this instance. The Board of Health of the city has not been licensed to define any criminal offense: it is the city charter (§ 558-d) and the Penal Law (§ 1740) that make any violation of the Sanitary Code a misdemeanor. On that score, the Sanitary Code merely says that any violation thereof shall be punished in the manner prescribed by the charter and by the Penal Law. (Sanitary Code, § 224.)

People v. Ryan (267 N. Y. 133, 136) is cited by the defendant. The question there presented was one as to the constitutional validity of the following provision of the Alcoholic Beverage Control Law (Cons. Laws, ch. 3-B): Violation by any person of any rule of the state board shall be a misdemeanor if such rule so provides * * (The emphasis is ours.) Such an attempt to create a criminal offense by a definition thereof to be laid down at the discretion of an administrative board was, as we held, without effect. (So, People v. Grant, 242 App. Div. 310; 267 N. Y. 508.)

The judgment should be affirmed.

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

Judgment affirmed.


text:
    In the Matter of George F. Camfield, Appellant, against Catherine Mealy et al., Constituting the Civil Service Commission of the City of Mechanicville, et al., Respondents.
    Argued April 14, 1942;
    decided April 30, 1942.

      Patrick J. Keniry for appellant.
    Participation in the examination should be limited to the members of the police department. (Matter of Cornehl v. Kern, 260 App. Div. 35; 285 N. Y. 777; Matter of Krapp v. Kern, 260 App. Div. 778; Matter of Peters v. Sisson, 183 App. Div. 286; 224 N. Y. 554; Town of Cortlandt v. Village of Peekskill, 281 N. Y. 490; Matter of Town of LaFayette, 105 App. Div. 25; Hardmann v. Bowen, 39 N. Y. 196; Matter of Ackerman v. Kern, 281 N. Y. 87; Matter of Poss v. Kern, 263 App. Div. 320; Ptacek v. People, 194 Ill. 125.) Respondent Foster was never legally appointed a member of the police department. (Cons. Laws, ch. 7, § 15.) Respondent Foster’s tenure became illegal four months after he took office. (Cons. Laws, ch. 7, § 15; Matter of Hilsenrad v. Miller, 284 N. Y. 445; Matter of Welling v. Bissell, 171 Misc. Rep. 90.) Respondent Foster should not be permitted to participate in the examination. (People ex rel. Hannan v. Board of Health, 153 N. Y. 513; Palmer v. Board of Education, 276 N. Y. 222; Peck v. Belknap, 130 N. Y. 394; People ex rel. Walton v. Hicks, 173 App. Div. 338; 221 N. Y. 503; Matter of Wolff v. Hudson, 285 N. Y. 197; Matter of Sheridan v. Kern, 255 App. Div. 57; Matter of Katz v. Goldwater, 260 App. Div. 495; Matter of Hilsenrad v. Miller, 284 N. Y. 445; Matter of Meenagh v. Dewey, 286 N. Y. 292; Matter of Social Investigator Eligibles Assn. v. Taylor, 268 N. Y. 233; People ex rel. Scott v. Reid, 135 App. Div. 89.)

      James G. Heffernan and John F. Doyle for respondents.
    Injunctive relief to bar Foster from the examination was properly denied. (Matter of Carp, 179 App. Div. 387; 221 N. Y. 643; People ex rel. Pumpyansky v. Keating, 168 N. Y. 390; Matter of Moses v. Syracuse Board of Education, 127 Misc. Rep. 477 ; 245 N. Y. 106; Matter of Brooks Clothing of California, Ltd., v. Flynn, 232 App. Div. 346; People ex rel. Graham v. Studwell, 91 App. Div. 469; 179 N. Y. 520; Matter of J. D. L. Corp. v. Bruckman, 171 Misc. Rep. 3; Matter of Birch v. Huie, 169 Misc. Rep. 1011; 256 App. Div. 1057; Matter of Bonacker v. Chuckrow, 166 Misc. Rep. 171; Matter of Walsh v. LaGuardia, 269 N. Y. 437; Matter of Haydorn v. Carroll, 225 N. Y. 84; Britton v. Scognamillo, 238 N. Y. 375; Bate v. McDowell, 97 N. Y. 646.) The exercise of discretion by the Special Term in denying the application for an order under article 78 of the Civil Practice Act was proper. (Frank v. Von Bayer, 236 N. Y. 473; Matter of Durr v. Paragon Trading Corp., 270 N. Y. 464; Matter of Cowen v. Reavy, 283 N. Y. 232.) The allowance of sixty per cent for training and experience is legal. (Matter of Borodkin v. Kern, 285 N. Y. 732; Matter of Cowen v. Reavy, 283 N. Y. 232; Matter of Thomas v. Kern, 280 N. Y. 236; Matter of Fink v. Finegan, 270 N. Y. 356.)
   Lehman, Ch. J.

The position of Chief of Police of the City of Mechanicville is in the competitive class. On March 1, 1940, .the respondent, John Foster, received a provisional appointment to fill a vacancy in that position. In June, 1940, the Mayor of the city, who is the appointing officer,” made a written request to the Civil Service Commission of the city for an open competitive examination to fill the vacancy, stating the reasons why it is deemed impracticable to fill such vacancy by promotion.” (Civil Service Law, § 16; Cons. Laws, ch. 7.) Notice of the request was posted in accordance with the statute. The Commission decided to grant the request and on April 9, 1941, more than thirteen months after John Foster’s provisional appointment to fill the vacancy, it gave notice that a competitive examination would be held on April 19, 1941.

The notice, after specifying the qualifications which candidates must possess, stated:

In addition candidates must have the following experience: four years of full time paid experience as a police officer in a recognized police department. Experience in ranks for the above patrolman will be accepted on the following basis:
One year as a sergeant equals two years as a patrolman.
One year as Chief of Police equals four years as a patrolman. * * *
Written examination on the duties of the position will receive a relative weight of 4, training and experience, relative weight 6.”

The Commission received applications to participate in the examination from only two persons, the respondent, John Foster, and the petitioner-appellant, George F. Camfield. Camfield promptly applied to the court, pursuant to the provisions of article 78 of the Civil Practice Act, for an order directing the Commission to confine the examination to all police officers, now in the Mechanicville Police Department,' who have served with fidelity in such department for more than six months and whose appointments as such police officers in said police department were made in accordance with the provisions of the Constitution of the State of New York, the Civil Service Laws of the State of New York, and the Rules and Regulations for the Civil Service of the City of Mechanicville, New York.’ ” The petitionér asked, also, that the Commission be directed to amend in other respects the specified qualifications of applicants for examination; to substitute objective standards for rating applicants on a competitive basis in place of the announced sixty per cent credit for training and experience,’ ” and to enjoin the respondent, John Foster, from, participating in the examination. The petition was dismissed at Special Term and the Appellate Division affirmed the order of dismissal.

No determination by the Commission which does not transcend the limits of the discretionary powers vested in the Commission may be set aside by the courts. We agree with the courts below that the petitioner has failed to show that the decision of the Commission to fill the vacancy by open competitive examination is arbitrary or unlawful. Nor does it appear that the Commission has been arbitrary in its determination of the relative weight to be given to the written examination and to “training and experience.” The question remains whether the determination and formulation of the qualifications of applicants is reasonable and lawful. That determination is, in our opinion, neither reasonable nor lawful if experience obtained in a police department of a city under an appointment or tenure which violates the law may constitute qualification for a position in the civil service.

A provisional appointment may be made in circumstances and in manner specified in subdivision 1 of section 15 of the Civil Service Law, to fill a vacancy in the competitive class “ until a selection and appointment can be made after competitive examination, but such provisional appointment shall not continue for a longer period than four months, nor shall successive provisional appointments be made to the same position under this subdivision.” Even if Foster’s provisional appointment in March, 1940, was made in accordance with the provisions of the statute, his continuance of service in that position constituted a plain violation of the statute. No legal status as a member of the police force can result from violation of the law. (Koso v. Greene, 260 N. Y. 491; Matter of Hilsenrad v. Miller, 284 N. Y. 445.) Any formulation of qualifications for a position in the civil service which provides for credit or benefit based upon the disregard of the provisions of the Civil Service Law is contrary to public policy and is from its nature arbitrary and unlawful.

Perhaps the provision in the notice that an applicant must have “ experience as police officer in a recognized police department ” is ambiguous and might be construed as intended to include only experience as a police officer with legal status; the Commission which formulated and must apply that provision placed other construction upon its own language. We are told in the brief of the Commission that “It is not required as a qualification for entrance into the examination that the applicant’s status be that of a duly appointed police officer. The Commission requires experience, not legal status. A private police officer, such as a railroad policeman, could qualify. If the Commission had wished to limit acceptable experience to that gained under a legal appointment, it could have so worded the announced requirements. It did not do so.”

We accept the construction of the Commission. To do otherwise would be to prolong the controversy and multiply applications to the courts. The experience of the respondent, John Foster, as an officer in the police department of Mechanicvilleymay not be accepted as a qualification for examination and cannot entitle him to any credit. The petitioner appellant concededly has not had four years’ experience as an officer in the police department of Mechanicville. No others have applied for examination. The notice of examination must be set aside.

The order of the Appellate Division and that of the Special Term should be reversed and the notice of examination vacated, with costs in all courts.

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

Orders reversed, etc.


text:
    In the Matter of Marion L. Thomas, as Chairman of the Democratic County Committee of Essex County, Appellant, against Willis Wells et al., Constituting the Board of Supervisors of Essex County, Respondents.
    Argued April 14, 1942;
    decided June 4, 1942.

      Horatio W. Thomas for appellant.
    Mandamus will lie to compel the performance of a power, the exercise of which lies in the discretion of the official against whom the relief is sought, if the action of such official is capricious, arbitrary or unfair or based on matters which as a matter of law may not control such discretion. (People ex rel. Lodes v. Dept. of Health, 189 N. Y. 187; People ex rel. Empire City Trotting Club v. State Racing Comm., 190 N. Y. 31; Matter of Larkin v. Schwab, 242 N. Y. 330; Matter of Schwab v. McElligott, 282 N. Y. 182.) The Board of Supervisors may not appoint a Commissioner of Elections not recommended by the County Committee. (Matter of Kane v. Gaynor, 144 App. Div. 196; 202 N. Y. 615.)

      B. Gregory Brewster for respondents.
    The petitioner-appellant is not entitled to that relief sought in so far as he seeks the relief formerly denominated as “ certiorari.” (Matter of Fahey v. Wright, 256 App. Div. 474.) An order or writ of certiorari will not lie to review the acts of the Board of Supervisors in the present case. (People v. Board of Health of the City of New York, 33 Barb. 344; People ex rel. Schuylerville & U. H. R. R. Co. v. Betts, 55 N. Y. 600; People ex rel. Corwin v. Walter, 68 N. Y. 403; People ex rel. Republican and Journal Co. v. Wiggins, 199 N. Y. 382; People ex rel. Hayes v. Waldo, 212 N. Y. 156; People ex rel. Second Ave. R. R. Co. v. Board of Commissioners, 97 N. Y. 37; Matter of Long Island R. R. Co. v. Hylan, 240 N. Y. 199; Matter of Leverant, 110 App. Div. 371; People ex rel. Joline v. Willcox, 129 App. Div. 267; Matter of Carp, 179 App. Div. 387; 221 N. Y. 643.)
   Loughran, J.

Pursuant to section 31 of the Election Law (Cons. Laws, ch. 17) and to a resolution of the County Committee of the Democratic Party for the County of Essex, the chairman of that committee recommended James M. Lonergan to the Board of Supervisors of the county for appointment as a Commissioner of Elections in place of Richard F. Hayes whose term of office was about to expire. A committee of the Board made the following report in respect of Mr. Lonergan’s qualifications: It is the unanimous opinion of this committee that he will fulfill the duties of this office with credit to the office and the county and we earnestly urge and recommend his immediate appointment.” Nevertheless a motion that the Board appoint Mr. Longer an an Election Commissioner was lost by a vote of eleven to five. The chairman of the County Committee of the Democratic Party then brought this proceeding to compel the Board to appoint Mr, Lonergan to the office.

The petition states the foregoing facts and further alleges that the refusal of said Board of Supervisors to appoint the said James M. Lonergan as Democratic Commissioner of Elections of Essex County was capricious, arbitrary and unjust in that it was the intent of said Board of Supervisors not to determine, justly and fairly and impartially, whether or not said James M. Lonergan was a fit, proper, and qualified person to represent the Democratic Party as a member of the Board of Elections but to arbitrarily refuse said appointment for the sole purpose of preventing any appointment other than the appointment of said Richard F. Hayes to the office of Democratic member of the Board of Elections.” An application by the Board for an order dismissing the petition for insufficiency in law was denied at Special Term and granted at the Appellate Division. The chairman of the County Committee of the Democratic Party has now brought the case here.

The statute gave to that committee merely the right to make and file * * * with the board of supervisors of such county a certificate * * * which * * * shall certify the name of a person who is *■' * * a resident and qualified voter of the county, and who is recommended as a fit and proper person to be appointed a commissioner of elections.” The certification of the name of Mr. Lonergan thereunder was thus a nomination for the office in question but nothing more. The refusal of the Board to follow this recommendation was competent governmental action which did not affect any private right. Courts are not at liberty to sit in judgment upon an imputation that improper motives may have influenced an exercise of such a discretionary sovereign power (See the cases cited in Matter of City of New York [Ely Avenue], 217 N. Y. 45, 59. Cf. Weston v. City of Syracuse, 158 N. Y. 274.) Under the circumstances, we have no function but to point out the command of the Constitution of the State that Boards of Supervisors are to secure bi-partisan Commissions of Elections in the manner prescribed by the statute. (Const, art. II, § 8. See Matter of Kane v. Gaynor, 144 App. Div. 196, at pp. 206, 207; 202 N. Y. 615.)

The order should be affirmed, without costs.

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

Order affirmed.