author: Rippey, J. Lehman, Ch. J.

text:
    In the Matter of Samuel W. Phillips et al., Respondents. H. Warren Hubbard, as City Clerk of the City of New York, et al., Appellants.

      Argued October 28, 1940;
    decided October 29, 1940.

      William C. Chanler, Corporation Counsel (Frederick v P. Bryan, Seymour B. Quel and Russell Lord Tarbox of counsel), for appellants.

      Kenneth M. Spence for Citizens Non-Partisan Committee, amicus curiӕ.

      Harold Riegelman and Jacob M. Dinnes for Citizens Budget Commission, Inc., amicus curiӕ.

      Samuel D. Smoleff, Dorothy Kenyon and Louis S. Lewis for Citizens Union of the City of New York et al., amici curiӕ.

   Rippey, J.

On September 6, 1940, a petition was filed with the City Clerk of the City of New York for the purpose of initiating amendments to the Charter for submission to the duly qualified voters of said city at the general election to be held on November 5, 1940, pursuant to the provisions of article IX, section 8, of the State Constitution and sections 44 and 45 of the City Charter (effective January 1, 1938). The proposed amendments (1) created a new office, that of City Sheriff, to be appointed by the Mayor, abolished the five county elective offices of Sheriff as presently provided by the State Constitution and the County Law (Cons. Laws, ch. 11) and, with exceptions not here pertinent, transferred their powers, duties and functions to the newly created City Sheriff and (2) created a new office to be known as City Register, to be appointed by the Mayor, abolished the offices of Register, Register of Deeds and Registrar in the counties within the city and transferred the duties, functions and powers of such offices, with certain specified exceptions, to the newly created office of City Register.

Section 44, subdivision b (1), of the City Charter provides the requirements for initiating such amendments and the procedure to be followed upon filing the petition and reads as follows:

(1) Not less than fifty thousand qualified electors of the city may file in the office of the city clerk a petition for the submission to the electors of the city at the next general election therein held not less than sixty days after filing of such petition of such a proposed amendment or amendments to the charter to be set forth in full in the petition. The petition may be made upon separate sheets and the signatures of each shall be authenticated in the manner provided by the election law for the authentication of designating petitions. The several sheets so signed and authenticated when fastened together and offered for filing shall be deemed to constitute one petition. A signature made earlier than one hundred twenty days before the filing of the petition shall not be counted. If within ten days after the filing of such petition a written objection thereto be filed with the officer with whom such petition is required by law to be filed, the supreme court or any justice thereof of the first or second judicial district shall determine any question arising thereunder and make such order as justice may require. Such proceedings shall be heard and determined in the manner prescribed by the election law in relation to judicial proceedings thereunder.”

Within the time specified in that section general objections and, later, specifications thereof were filed with the City Clerk. Whether specifications of objections were filed within the time specified in the Charter or not or at all was immaterial (Matter of Goldberg v. Cohen, 281 N. Y. 776). A hearing was had before the proper judicial officer, and decision was entered thereon which provided that the petition was invalid, ineffective and insufficient for the purpose of initiating such amendments and that the proposed amendments should not be submitted to the voters at the general election November 5, 1940. The Appellate Division unanimously affirmed the order and permitted appeal to this court on the ground that questions of law are involved which ought to be reviewed by the Court of Appeals.

The petition contained 58,320 signatures, of which 35,891 were challenged by the objections and specifications of objections. Upon stipulated facts, the lower courts have found that 18,111 of those signatures could not be counted in making up the required 50,000 signatures since they were either forgeries or must be discarded for other fatal defects in the petition and that at least 15,000 other signatures could not be counted since the signers had not registered as voters for the year 1939 but had falsely stated that they had so registered and the petition did not show otherwise in fact that they were qualified electors. Construing the section of the Charter referred to, it was held that the requirements for designating petitions under sections 135 and 137 of the Election Law (Cons. Laws, ch. 17) were applicable to the petition in question and that neither literal nor substantial compliance with such requirements had been shown. Other questions were raised but not considered in the courts below. We consider only the question as to whether the initiating petition is valid on its face and meets the requirements of the provisions of section 44 of the City Charter.

The petition must contain the signatures of at least 50,000 qualified electors ” of the city. A “ qualified elector,” within the meaning of section 44 of the City Charter, is a person qualified as to citizenship, age and residence as provided in article II, section 1, of the State Constitution and section 150 of the Election Law to exercise, at a particular election, the elective franchise within the city of New York. He or she must have been a citizen of the United States at least ninety days, who is or will be on the day of election twenty-one years of age and, additionally, next preceding an election, for one year an inhabitant of the State, for four months a resident of the county and for thirty days a resident of the election district in which he or she offers his or her vote. In some actual or substantial form such facts must appear on the petition. Proof thereof may be substantially shown by a statement accompanying the signature that the signer is a duly registered voter in accordance with the provisions of the Election Law within the governmental subdivision within which his vote may be cast. We have held that where a section of the Charter is silent on the matter of requirements of a designating petition, the Charter provision and the appropriate provisions of the Election Law must be read together and the signers must comply with the provisions of the latter validly to designate by showing, on the face of the petition with their signatures, due registration as a voter within eighteen months prior to the date of their signatures, otherwise the petition will be void (Matter of Goldberg v. Cohen, supra).

By the express terms of section 44 of the Charter, his or her signature must be authenticated in the manner provided by the Election Law for the authentication of designating petitions. Section 135 of the Election Law provides that the petition may be authenticated by the signer by swearing before an officer authorized to take oaths of affiants that the statements contained in the petition as required by that section subscribed by him or her are true or may be authenticated by the verified affidavit of a witness attached to such sheet of the petition that he knew each of the voters whose names are subscribed to such sheet, and that each of them subscribed the same in his presence and upon so subscribing declared to him that the foregoing statement, made and subscribed by him or her, was true. The latter method of authentication was adopted in the case at bar but at least one of those who acted as witness to many separate sheets of signers to the petition containing a large number of names testified that he, in fact, knew none of the signers. To what statements does the authentication refer? Obviously and necessarily to the statements required by such signer to the petition. The statements required in a designating petition from a signer are specified in section 135 of the Election Law. It provides, among other things, that a designating petition “ must set forth in every instance the full name of signer, his or her residence and election district and the date when the signature is affixed. In the city of New York, the petition must also set forth the assembly district in which the signer resides.” The purpose of those requirements and of the authentication thereof as provided is to avoid the possibility of fraud, deception and confusion. The requirements must be fully complied with (Matter of Kollock v. Russell, 162 Misc. Rep. 299; affd., 250 App. Div. 774).

It must have been the intent and purpose of section 44 of the Charter to require a petition containing statements such as are required by section 135 of the Election Law for designating petitions and authentication as required therein when provision was made that authentication of the signers must be made as provided in the Election Law for designating petitions. To hold that the meaning was otherwise would lead to absurdity and nullify the purpose of authentication. Logically it would mean that nothing more than authentication of 50,000 signatures was required. One or all of them, under such a construction, might be of a person or persons who were not qualified electors of the city of New York. The signature of a person without regard to residence or voting qualification surely was not contemplated by the framers of the section. On the other hand, it was contemplated that the petition should be made and authenticated by signers who were duly qualified electors of the city of New York, the governmental unit to which the amendments were applicable. We cannot attribute to the framers of the Charter any purpose to make determination of whether the signers were or were not such “ qualified electors ” unduly difficult or impossible. It would be one or both if interested parties were left without information or facts on the face of the petition itself as to whether the signers were qualified electors ” in the city of New York when the section requires written objections to be filed within ten days after the filing of the petition.

Construction such as we have indicated was entertained by those who prepared the separate sheets in the petition since each printed sheet contains blank spaces to be filled in by the signers under headings showing “ date ” of signing, “ name of signer,” residence,” election district,” “ assembly district ” of the appropriate county and “ residence from which registered in 1939.” With the information so called for available as to each signer, examination as to the truth or falsity of the authentication required and thus a determination of the validity of the petition within the ten days permitted for filing objections is possible. This construction is given in accordance with the intent and purpose of the requirement of the Charter for authentication as provided by the Election Law.

Additionally, on the stipulated facts, statement of the place of registration of upwards of 15,000 signers and authentication of that statement was false. Nothing is left upon which a determination can be made that the necessary number of qualified electors ” residing in the city of New York signed the petition. Certainly, no reliance can be placed on any general statement in the petition that such signers were qualified electors within the city of New York when no evidence thereof is furnished except a statement which is admittedly false. The truth of facts necessary to give the petition vitality must be shown. The existence of such facts cannot be presumed. Whether supplemental evidence from which the truth of the necessary facts of the signing by qualified electors of the city of New York might have been furnished and considered if timely made (Cf. Matter of Orange v. Cohen, 268 N. Y. 481), need not be considered, since no such evidence was produced.

As we have pointed out, entirely aside from the fact that the 15,000 signatures above considered cannot be counted, more than 18,000 others could not be counted for other reasons found by the justice hearing the objections. Rejection of either group of signatures is sufficient to bring the number of signers below the number required by section 44 of the Charter.-

The order appealed from should be affirmed, without costs.

Lehman, Ch. J.

(dissenting). An amendment to the Charter in accordance with the provisions of section 44 of the New York City Charter is a “ local law ” within the meaning of article IX, section 8, of the Constitution of the State of New York. That term is not confined to laws passed in manner prescribed by legislative statutes at the time when the constitutional provision was adopted. “ No limitation is here found upon the method by which these local laws shall be adopted, and no replica of the State Senate and Assembly is necessary.” (Matter of Mooney v. Cohen, 272 N. Y. 33, 39.)

A “ qualified voter ” is defined by section 150 of the Election Law and the qualifications entitling a citizen to vote are defined in article II, section 1, of the Constitution of the State. The petition proposing an amendment to the Charter must be signed by qualified electors ” and electors are qualified ” who have the qualifications ” exacted by the Constitution and the Election Law. Enrollment or registration is not one of such qualifications. It is merely the method provided by the Legislature for ascertaining, by proper proofs, the citizens who shall be entitled to the right of suffrage.” (State Const. art. 2, § 5.) Those who “ present themselves for the exercise of the right of suffrage” must give such proof. (Matter of Ahern v. Elder, 195. N. Y. 493, 497.) Without such proof they still are “ qualified electors ” and “ qualified voters ” who may sign a petition where the statute so provides without requiring, in addition, that the “ qualified ” elector or voter be enrolled. (Cf. Johndahl v. City of Buffalo, 245 N. Y. 538.)

The Charter provision does not require such enrollment. It requires only the signature of qualified ” electors and that the “ signatures of each shall be authenticated in the manner provided by the election law for the authentication of designating petitions.” Section 135 provides the manner in which a designating petition may be “ authenticated as to all the signatures.” The signatures of more than fifty thousand signers have been authenticated in the manner so provided. There is no express provision in the statute and no provision that may be read into the statute by fair implication by which compliance with other requirements of the Election Law for valid “ designating petition ” may be made the test of validity of a petition filed in strict accordance with section 44 of the Charter.

The fact that 15,000 signers certified that “ my place of residence is truly stated opposite my signature hereto, and that the place of residence from which I registered in the year 1939 is likewise truly stated opposite my signature,” though in fact they had not registered in the year 1939, does not in my opinion sustain any inference of fraud where there is no proof in addition that the signers did not in fact reside at such address in 1939.

The orders of Special Term and Appellate Division should be reversed and objections dismissed.

Loughran, Lewis and Conway, JJ., concur with Rippey, J.; Lehman, Ch. J., dissents in opinion in which Finch and Sears, JJ., concur.

Order affirmed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    In the Matter of James J. Connell et al., Respondents. Max Bedacht et al., Appellants.
    Argued October 28, 1940;
    decided October 29, 1940.

      Joseph R. Brodsky for appellants.

      Osmond K. Fraenkel for American Civil Liberties Union, amicus curiӕ.

      Samuel M. Birnbaum, Frank A. Pedlow, Thomas J. Burke and Simon L. Miller for respondents.
   Per Curiam.

In our opinion, the evidence does not sustain the findings that there were not fifty valid signatures in Franklin county, but we find substantial evidence to sustain the findings in regard to Greene county.

The order should be affirmed, without costs.

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

Order affirmed.


author: Finch, J.

text:
    In the Matter of the Claim of Margaret B. Morton. Frieda S. Miller, as Industrial Commissioner, Appellant; Spirella Company, Inc., Respondent.

      Argued October 4, 1940;
    decided November 19, 1940.

      John J. Bennett, Jr., Attorney-General (W. Gerard Ryan, Henry Epstein and Francis R. Curran of counsel), for appellant.

      Clarence R. Runals, Edward E. Franchot and Paul P. Cohen for respondent.
   Finch, J.

The sole question presented on this appeal is whether the claimant was an employee of the respondent company rather than an independent contractor within the meaning of the unemployment insurance law (Labor Law, Cons. Laws, ch. 31, § 500 et seq.; L. 1921, ch. 50, as amd. by L. 1935, ch. 468 and subsequent amendments). A hearing was had before a referee of the Division of Placement and Unemployment Insurance of the Department of Labor, who granted the application of claimant for benefits under the law. The employer appealed to the Unemployment Insurance Appeal Board, which also conducted a hearing and thereafter, upon findings of fact, affirmed the decision of the referee. An appeal then was taken to the Appellate Division which reversed as a matter of law the determination of the Appeal Board and dismissed the claim.

The question to be reviewed by us is not whether claimant was an employee of respondent as a matter of fact, but whether upon the basis of the record before us we must decide as a matter of law that claimant was not an employee. Neither the duty nor the power to weigh the evidence rests with the courts, for that function, by virtue of the statute, has been imposed upon the administrative authority acting in a quasi-judicial capacity. (Labor Law, § 534.) In referring to the procedure under a parallel statute, it has been said that " where from the evidence either of two conflicting inferences may be drawn, the duty of weighing the evidence and making the choice rests solely upon the board.” (Matter of Stork Restaurant, Inc., v. Boland, 282 N. Y. 256, 267.) Keeping in mind the restricted scope of our inquiry, we proceed to examine the record.

Respondent manufactures and sells made-to-order ladies’ undergarments. Claimant was engaged as a “ corsetiere pursuant to a written contract, which, in part, provided as follows: The company agreed to grant an exclusive sales territory to claimant, to give her the benefit of the Company’s training in Corsetry and Salesmanship,” to furnish her with the Company’s products * * * at the prices published in the Company’s Wholesale Price List,” etc. In return, claimant agreed to take the training given by the company, to practice The Company’s methods of corsetry,” to master “ its methods of salesmanship,” “ to keep on hand at all times a complete set of modeling garments and a representative, up-to-date assortment of demonstration models; to use modeling garments for taking measurements,” to furnish the company with the names and addresses of all clients, and to return all samples and literature upon termination of the contract. The contract was to run for one year, and was terminable at the option of the company if the claimant failed to sell at least ten garments per month over a period of three months. Claimant also agreed that for the duration of the contract she would not sell any goods but those of the respondent company, and that for one year after the termination of the contract she would not sell any other undergarments within the assigned territory.

In addition to the foregoing, it has been found by the Appeal Board that, as a matter of practice, claimant was required to submit weekly report cards showing in detail the work performed by her each day of the week, to work at least thirty hours per week and to begin each day at nine o’clock a. M., to follow the routine prescribed by the company’s manual of instructions, to deliver to each customer a receipt on forms supplied by the company which bore in large print the “ Manufacturer’s Agreement ” and the name of respondent, to attend sales and instruction meetings conducted by the respondent’s city manager, etc.

It has also been found by the Board that claimant was required to sell at the retail prices “ suggested ” by respondent, and that, although respondent held claimant responsible for the wholesale price, it was not in fact collected until payment had been made by the retail customer. Respondent takes issue sharply with the Board’s finding concerning the financial arrangement which actually existed between claimant and respondent. The record contains evidence which, if believed, supports the version accepted by the Board, and, therefore, the Board’s findings are conclusive. (Labor Law, § 534.) Although the manner of payment sometimes may be one of the factors to be considered in determining whether one is an employee or an independent contractor (American Law Institute, Restatement of the Law of Agency, § 220), the view which we take of the case makes it unnecessary to consider this aspect at length. (Cf. Hexamer v. Webb, 101 N. Y. 377, 384; Matter of Beach v. Velzy, 238 N. Y. 100, 104.)

For the period applicable to the claimant in the case at bar, the statute provided:

Definitions. As used in this article:
“ 1. ‘ Employment,’ except where the context shows otherwise, means any employment under any contract of hire, express or implied, written or oral, including all contracts entered into by helpers and assistants of employees, whether paid by employer or employee, if employed with the knowledge actual or constructive of the employer, in which all or the greater part of the work is to be performed within this state.
* * * * tt
“ But for the purposes of this article, employment ’ shall not include:
(1) Employment as a farm laborer;
(2) Employment by an employer of his spouse or minor child.
*****
“ 2. ‘ Employee ’ means any person, including aliens and minors, employed for hire by an employer in an employment subject to this article, except any person whose wages exceed three thousand dollars in any calendar year.” (§ 502.)

The distinction between an employee and an independent contractor has been said to be the difference between one who "undertakes to achieve an agreed result and to accept the directions of his employer as to the manner in which the result shall be accomplished, and one who agrees to achieve a certain result but is not subject to the orders of the employer as to the means which are used. (Hexamer v. Webb, supra; Irwin v. Klein, 271 N. Y. 477, 485; Clerk & Lindsell on The Law of Torts [9th ed.], p. 65; Pollock on The Law of Torts [14th ed.], p. 64.) “ What, then, is the test of this distinction between a servant and an independent contractor? The test is the existence of a right of control over the agent in respect of the manner in which his work is to be done. A servant is an agent who works under the supervision and direction of his employer; an independent contractor is one who is his own master. A servant is a person engaged to obey his employer’s orders from time to time; an independent contractor is a person engaged to do certain work, but to exercise his own discretion as to the mode and time of doing it — he is bound by his contract, but not by his employer’s orders.” (Salmond on The Law of Torts [9th ed.], p. 90.) This general concept, evolved by a long line of tort cases and expressed by many eminent writers on the subject, has been applied in cases arising under the Workmen’s Compensation Law (Cons. Laws, ch. 67). (Matter of Beach v. Velzy, supra; Matter of Pierce v. Bowen, 247 N. Y. 305; Matter of Glielmi v. Netherland Dairy Co., 254 N. Y. 60.) The same rule also has been applied to cases arising under the unemployment insurance law, the result in the particular case depending upon the facts present in each instance. (Compare Matter of Scatola, 282 N. Y. 689, with Matter of Levine, 283 N. Y. 577.) It has also been applied in unemployment insurance cases in other jurisdictions. (Jack & Jill, Inc., v. Tone, 126 Conn. 114; Schomp v. Fuller Brush Co., 124 N. J. L. 487.)

From the nature of the problem, the degree of control which must be reserved by the employer in order to create the employer-employee relationship cannot be stated in terms of mathematical precision, and various aspects of the relationship may be considered in arriving at the conclusion in a particular case. (Restatement of the Law of Agency, § 220.) Therefore we must examine the facts in the case at bar to determine whether the arrangement between claimant and respondent was so altogether lacking in those marks which ordinarily characterize the relationship of employer and employee that claimant must be deemed, as a matter of law, to have been an independent contractor. Respondent urges that the dealings were simply those which are had by vendor and vendee; that claimant bought at wholesale and resold at retail for her own profit; and that, for the period under review in this proceeding, respondent exercised no supervision over the manner in which claimant performed her work. These contentions must be considered in the light of a record containing contrary findings by the Appeal Board which are supported by evidence.

By the terms of the contract, claimant was obligated to pursue respondent’s methods of corsetry and of salesmanship. Necessarily it was not claimant, but respondent which determined its methods of corsetry and its technique of salesmanship and, hence, it was respondent which directed the manner in which the work was to be done. Thus, the very written agreement, upon which so much stress is placed by respondent, precluded the use of claimant’s discretion as to the means employed to achieve the agreed result. The failure of claimant to follow respondent’s methods would have been a breach of contract on her part.

The subsequent conduct of the parties bears out the plain intendment of the written understanding. Claimant’s time was not her own. She was expected to begin her day’s work at nine a. m. and to work at least thirty hours a week. In the performance of her work, the modeling garments used for measuring, the samples of respondent’s wares, and the advertising literature were supplied by respondent and had to be returned to respondent upon termination of the contract. Her calling card was imprinted with her name together with that of the respondent. The retail prices at which she sold were fixed by the respondent. The receipt for a deposit which she gave to a retail customer bore the name of respondent in large print, and over its name was a Manufacturer’s Agreement ” which included a request that the customer have the balance available when due. A report card had to be filed each week showing claimant’s daily activities in detail. And further, she was urged to attend a weekly school of instruction conducted by respondent’s city manager, as to the selling and fitting of garments the following week. From all of this, the picture presented is not that of one free to exercise her own discretion in the performance of a contract. Bather, it appears that “ On the one side there is an intimacy of control and on the other a fullness of submission that imports the presence of a sovereign,’ as the master, we are reminded, was sometimes called in the old books.” (Matter of Glielmi v. Netherland Dairy Co., supra, at pp. 63,64.)

Except in regard to the fixing of the retail price, respondent does not so much dispute the foregoing facts as it seeks to apportion differently the emphasis to be placed upon particular items. Had the view of respondent been accepted by the Appeal Board, then perhaps its ruling could not be disturbed. But the Appeal Board, having weighed the several factors and having concluded that claimant had been an employee, there is neither principle nor precedent which would compel a contrary conclusion as a matter of law.

Respondent further contends that the inquiry into the relationship between itself and the claimant must be confined to the terms of the written contract. The Appeal Board found that the true relationship was not evinced by the contract but that in addition the actual practice of the parties which supplemented the written contract had to be taken into account.

This is not an action upon a contract in which one of the signatories seeks to vary the terms of the written agreement by matter dehors the contract. This is a proceeding to determine the right to benefits under the unemployment insurance law and the question involved is whether claimant is within the scope of the statute. An agreement by the employee to waive the benefits of the act is void. (Labor Law, § 512.) It follows that, while an employer may elect to engage an independent contractor rather than an employee, no written agreement may preclude an examination to determine whether the actual relationship is such as to bring the parties within the scope of the law. But even if the inquiry had been limited as contended by respondent, the determination of the Appeal Board still would be warranted, for it was by the very terms of the written contract that respondent reserved to itself, and subjected claimant to, control over the execution of the work. The written agreement expressly provided that claimant was to practice the company’s methods of corsetry and salesmanship and, therefore, respondent company had control over the means used by claimant in the discharge of her obligation.

It follows that since the Appeal Board was warranted in adopting its view of the facts, the order of the Appellate Division should be reversed and the decision of the Appeal Board reinstated, with costs in this court and in the Appellate Division. (See 284 N. Y. 738.)

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

Ordered accordingly.


text:
    William G. Dillon, Appellant, v. Rockaway Beach Hospital and Dispensary, Respondent.
    Argued October 8, 1940;
    decided November 19, 1940.

      John J. Cunneen and Joseph A. Byrne for appellant.

      Clarence S. Zipp, William S. O’Connor and Daniel Miner for respondent.
   Finch, J.

This is an action by a paying patient against a charitable hospital to recover for injuries sustained as a result of the negligence of the latter’s servants. At the close of the plaintiff’s case the complaint was dismissed without prejudice. It is necessary, therefore, to consider the evidence in the light most favorable to the plaintiff.

Plaintiff was admitted to the hospital on November 27,1936, at eight a. m., preparatory to undergoing an operation. At about five-thirty p. m., a hospital attendant brought in an electric light lamp having a reflector which was hung on top of the bedstead at the foot of the bed. The lamp was attached by two hooks similar to the earbows of eye glasses. Plaintiff was taken to the operating room at about eight p. m., and at that time the lamp was still hanging on the end of the bed. For purposes of the operation, he was given a spinal anesthetic which deadened ” his body from about the middle of the body to the: ¡end of his feet. When he was brought back to his room by two attendants about one hour after he had left, he did not see the lamp on the bedstead. Plaintiff was put into bed and covered with a sheet and spread which had been there Fifteen minutes later, a special nurse whose services were paid for by plaintiff came into the room. At about midnight plaintiff felt a burning sensation in his feet and complained to the special nurse and another nurse who had come into the room. The other nurse lifted the bed clothes and removed an electric light lamp, the^ same lamp which previously had been hung on the bedstead. Upon subsequent examination the foot was found to be severely burned. Counsel for defendant conceded that plaintiff’s doctor if called would have testified that when plaintiff was brought back to his room after the operation, his foot had no such burn and that such a burn could be produced by the lamp in question.

Respondent contends that the foregoing does not amount to a prima facie case because it contains no proof (1) that the bum was caused by the lamp, and (2) that the lamp was in a position to bum plaintiff’s foot as a result of the negligence of any person for whose act or omission defendant is liable.

We find that plaintiff’s evidence was sufficient to entitle him to go to the jury.

Circumstantial evidence is sufficient if it supports the inference of causation or of negligence even though it does not negative the existence of remote possibilities that the injury was not caused by the defendant or that the defendant was not negligent. “It is enough that he [plaintiff] shows facts and conditions from which the negligence of the defendant and the causation of the accident by that negligence may be reasonably inferred.” (Ingersoll v. Liberty Bank, 278 N. Y. 1,7; Cornbrooks v. Terminal Barber Shops, Inc., 282 N. Y. 217, 223; Rosenberg v. Schwartz, 260 N. Y. 162, 166; Martin v. Herzog, 228 N. Y. 164, 170.)

That the burn was caused by the lamp was sufficiently proved. Plaintiff’s evidence, if believed, showed that he had no burn on his foot when put into bed after the operation; that while he was in bed he felt a burning sensation; that the lamp was removed from the vicinity of his foot; that after the lamp was removed, the heat pain abated; that plaintiff’s foot suffered a severe bum; and that the burn is of a kind which could be caused by the lamp in question. Upon a trial, such a chain of evidence must be deemed sufficient to permit the jury to infer that the lamp caused the injury. To hold otherwise and to determine as a matter of law that the foregoing evidence is insufficient would impose an unduly stringent standard greatly in excess of the requirements of reasonable proof. (1 Wigmore on the Law of Evidence [3d ed.], § 41.)

The proof was also sufficient to permit the jury to find that the injury was caused by the negligence of defendant’s servants.

Although defendant alleges itself to be a hospital organized for charitable purposes as well as for the treatment of paying patients, no argument for immunity in the case at bar has been offered upon that score. Indeed, it is now settled that even a charitable hospital is liable for the acts of its servants. (Sheehan v. North Country Community Hospital, 273 N. Y. 163.) The liability depends not so much upon the title of the individual whose act or omission causes the injury, as upon the character of the act itself. (Phillips v. Buffalo General Hospital, 239 N. Y. 188.) In that case, the designation of the actor as an orderly was held not to impose liability for an act for which the hospital would not have been liable had the actor been a nurse. And conversely it has been held in a persuasive case in England that a hospital is not relieved of liability regardless of the character of the act simply because the individual actor bears the title of a medical doctor. (Lindsey County Council v. Marshall, [1937] A. C. 97.) The rule has been summarized by an eminent writer as follows: “The law, therefore, appears to be that, while a hospital authority may be not liable for medical treatment by doctors or nurses, provided reasonable care has been exercised in their selection, it will be liable for any of their negligent acts or omissions not directly concerned with medical treatment but in respect of which the doctors or nurses could be considered as the servants of the authority.” (Clerk & Lind-sell on Torts [9th ed.], p. 274.)

Defendant does not dispute that the act or omission which caused plaintiff’s 'injury is one for which it may be held liable in a proper case, but contends that proof in the case at bar was insufficient. It is said that plaintiff failed to exclude the possibilities that he suffered his injury as the result of some act of his own special nurse, or his own doctor, or someone else not entailing liability on the part of the hospital. So far as the nurse is concerned, her participation was not an issue at the trial, as such issues were defined by the pleadings, for the answer of defendant itself alleges in paragraphs “ Fifth ” and “ Sixth,” “ that the alleged injuries received by the said plaintiff were due in no sense to any negligence or failure on the part of said persons/’ of whom the nurse was one. The answer to this present contention of the plaintiff, however, need not be rested on the pleadings, for as part of Ms case plaintiff testified that the special nurse did not enter the room until fifteen minutes after Ms return from the operating room, at wMch time the lamp was no longer on the bedstead. As for the whereabouts of plaintiff’s doctor while plaintiff was in the operating room, the chances that he entered plaintiff’s private room during that interval and did anything in connection with the bedsheets or the lamp are especially slight, and, therefore, within the rule concerning remote possibilities stated in the decisions cited above.

There remains one further possibility suggested by defendant: that the actor was “ someone * * * not engaging defendant’s responsibility.” Plaintiff testified that the lamp was attached loosely to the bedstead by an attendant working about the hospital, and he was put into bed, after the operation, by hospital attendants. Surely their conduct as servants imposes liability upon defendant, in a situation such as that presented in the case at bar. If it is intended to suggest that some complete stranger entered the room during plaintiff’s absence and tampered with the bed or the lamp, then the possibility is so remote as to tax the imagination. Defendant’s argument concerning someone else not engagmg defendant’s responsibility ” is perhaps also mtended to be an oblique reference to the possibility that the actor was a physician or nurse upon its staff. As to tMs the answer is several-fold; first, the evidence on behalf of plaintiff expressly describes attendants and not physicians or nurses; second, the possibility that either a nurse or physician would be occupied, while plaintiff was in the operating room, by a task in connection with the lamp or the making of the bed is extremely slight; and third, even if the act were done by such a person, defendant would not be relieved of responsibility, for the act is of a kind performed by a servant, and it is undisputed that such is the character of the act in the case at bar. (Phillips v. Buffalo General Hospital, supra; Lindsey County Council v. Marshall, supra.) The circumstantial evidence introduced to show defendant’s negligence negatives all but bare possibilities that defendant was free from any negligence and, therefore, was sufficient to constitute a prima facie case as established by the authorities.

Plaintiff having introduced sufficient evidence to go to the jury both on the questions of negligence and of causation, it was error to withdraw the case from the jury and nonsuit plaintiff.

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

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

Judgments reversed, etc.


author: Seaks, J.

text:
    The People of the State of New York, Respondent, v. Stanley Johnson, Appellant.
    Argued October 3, 1940;
    decided November 19, 1940.

      Richard T. Anderson for appellant.

      Theodore M. Coburn, District Attorney, for respondent.
   Seaks, J.

During the late evening of January 1, 1940, the defendant Stanley Johnson shot and killed a woman named Elizabeth Dale in her home in the city of Auburn, N. Y. The grand jury indicted the defendant for the crime of murder in the first degree. The trial of the indictment began on the 29th day of January, 1940, and resulted in the conviction of the defendant of the crime charged on the 16th day of February. From the conviction the defendant has appealed to this court.

The victim of the shooting was a married woman separated from her husband and living with three children and her father. The defendant, who was twenty-four years of age, had been on terms of close friendship with her. Within the last few months before the shooting, however, another man, named Jesse Mayo, had been paying her attention. On the 1st day of January, 1940, the defendant spent the afternoon and early evening at the Dale house. During the afternoon Mayo came in and, soon leaving, arranged with Elizabeth Dale to keep an engagement elsewhere that evening with, ''him. This she did, returning to her home with Mayo at about ten-thirty o’clock in the evening. Meanwhile, the defendant, leaving the Dale house at about eight o’clock, had gone to his own home and had his supper. He returned to the Dale house at about eleven o’clock and, finding the door locked and lights out, entered the house through a window in a toilet room, from which he entered a living room where the fights were out but where there was some radiance from a stove and a small radio receiver. When he entered, Mayo and Elizabeth Dale were seated on a cot bed. Defendant, according to Mayo, turned the electric light on and off. He then left the room and got an automatic pistol which he had previously left elsewhere in the house, returned to the room and, after some angry words, fired a number of shots, at least seven, some of which struck Elizabeth Dale and caused her death, while one wounded Mayo. This brief summary of the immediate circumstances is sufficient for the purposes of this opinion. The facts stated stand substantially uncontroverted in the record.

The argument which defendant’s counsel presented to the jury was based on other facts. The defendant offered proof that at the time of the shooting, he was suffering from disease, namely, cerebral syphilis, which, according to his contention, was such that he was laboring under such a defect of reason as (1) not to know the nature and quality of the act he was doing ” and (2) not to know that the act was wrong ” (Penal Law, § 1120), or, at least, was such as to render the defendant so incapable of deliberation or premeditation that his act could not constitute the crime of murder in the first degree. On this issue, experts were sworn on behalf of the defendant, whose testimony furnished support for his theory, while on the part of the People experts were sworn whose testimony supported the People’s claim that the defendant was not suffering from cerebral syphilis at all and was in no respect laboring under a defect of reason.

The crime charged is of the most serious character known to our law, calling for the extreme punishment. Whatever may be our ideas as to the defendant’s guilt, it is essential to the due administration of justice that he should have received a scrupulously fair trial. It was the duty of the court and of the district attorney to see to it that his fate which hung in the balance * * * wag not prejudiced or settled by any forbidden or untoward methods.” (People v. Esposito, 224 N. Y. 370, 372; People v. Teiper, 186 App. Div. 830.)

We are furnished here with a record presenting such grave error at the very threshold of the trial as to make it doubtful whether the jury could thereafter render a verdict with full appreciation of its responsibility. When the first prospective juror was called for examination, the following occurred: “ Q. [by the District Attorney]: But do you know, Mrs. Burhans, that after the completion of the case of murder in the first degree, provided there is a verdict of guilty of murder in the first degree, then the law says in protection of a case of this nature that an appeal must be taken to the Court of Appeals, which is the highest court of our state, consisting of seven judges who must also pass upon that case. Did you know that? A. No, I didn’t. Q. Well, I presume you naturally wouldn’t be expected to because you people don’t study law. Mr. Anderson [Counsel for the defendant]: I object to this line of examinafon. Let’s try the case on the facts first and let the appeal rest. It is not within the province of the jury to decide that. The Court: I will listen to his next question. It sounds like an introductory question, otherwise I will rule on it.”

A little later the District Attorney asked: Q. Do you know also, Mrs. Burhans, that in case of a verdict of guilty of murder in the first degree, as I. have told you, that after the verdict of the jury is passed upon by the Court of Appeals consisting of seven judges, the highest court of this state, that if they agree with the verdict of the jury, even then there is another safeguard for all defendants —”

To this, again the counsel for the defendant objected and said: “ Mr. Anderson [Counsel for the defendant]: I object as improper at this time and assuming too much, I believe — assuming a conviction is going to be had in this case and improper. The Court: I will permit the question. Mr. Anderson: Let’s decide the facts and let the Trial Court determine. It is prejudicial. The Court: It is unusual but I will permit the question. Q.— and that is, there is a final appeal to the governor of the State of New York, who is the extreme power, even though the jury and the Court of Appeals have agreed that the verdict was correct, he still has the power to commute that sentence to life imprisonment. Did you know that? A. Yes.”

This particular prospective juror was excused by the court. This line of questioning in slightly varying form followed with juryman after juryman.

On the examination of the twelfth prospective juror, who was accepted, the following occurred: Q. [by the District Attorney]: You heard my statement to the first juror here this morning in respect to protection to a defendant who is charged with an offense of this sort that is given under the law? A. Yes, sir. Q. In other words, the jury’s verdict, if it is guilty of murder in the first degree, is not final? A. Yes. Q. But it goes to a higher Court, and from there, if they agree with the jury, finally to the governor, who has the right and power to commute that sentence? A. Yes, sir.”

On the examination of the thirteenth prospective juror, the following occurred: “ Q. Did you hear me speak when I spoke to the first juror this morning, about the protection that the law gives to a man tried for a crime of this sort? A. Yes. Q. You understand the jury’s verdict is not final? A. Yes. Q. That if they say — Mr. Anderson [Counsel for the defendant]: I object to this line of examination as not final. It is final on the facts, if your Honor please. Mr. Cobum [District Attorney]: I object to the remark on the part of counsel. Mr. Anderson: I object to this line of questioning. We are trying a law suit and no appeal. Mr. Cobum: The law specifically states the Court of Appeals considers the facts and the law in a murder, first degree. Mr. Anderson: Very seldom does the Court of Appeals consider the facts. They decide the law alone. The Court: It is an unusual question but you may have it. Q. But you do understand in case the jury brings that verdict in, the law compels an appeal be taken to a higher court? A. Yes. Q. And that then, if that higher court agrees with the verdict of the jury, that there still is a final appeal to the Governor of the State of New York, who has the right to pass upon it before this man is definitely punished? A. Yes.”

On the examination of the sixtieth prospective juror the record shows the following: “ Q. [by the District Attorney]: You have heard me state some time back earlier in the examination of jurors the safeguard that goes to a person tried for such an offense as this? A. Yes. Q. You understand that? A. Yes. Q. And will keep that in mind in passing upon this evidence? A. Yes.”

From the examinations already quoted and the many others to the same general effect, it is apparent that when the jurors were examined other persons called on the panel were present awaiting examination. The statement made to any one of the prospective jurors was in the hearing of many. The District Attorney made very clear his theory of a jury’s verdict. What bearing all this could possibly have had except a prejudicial one is not apparent. Something of the kind occurred in People v. Esposito (supra). There this court, in the opinion by Chief Judge His cock, said:

“ And then finally in summing up the District Attorney used this significant language: ‘ I wish also to call your attention here to the fact that this defendant can appeal from this decision of yours to the Court of Appeals but the prosecution cannot.’

“ That is, in subtle manner it was suggested to the jury that because of his right to appeal no ultimate harm could come to defendant if they should through error or intention relax somewhat in the application of those principles which ought to govern their deliberations in his favor and that this view was all the more pertinent because of the fact that no error against the People could thus be corrected ” (p. 376).

The vice of the statements and questions of the District Attorney lies not primarily in the incorrectness of the statement that an appeal to the Court of Appeals is compulsory but in the suggestion that the jury’s verdict, if against the defendant, cannot be seriously harmful to him because of the opportunities for review. This suggestion is fundamentally unsound and vitiates the trial. No element of our judicial process must be more carefully protected than the function of the jury. The jury has nothing to do with appeals and applications for clemency. They he in a wholly different field. The jurors have task enough to find the truth and proclaim it by their determination without regard to ultimate consequences. Nothing can be permitted to weaken the jurors’ sense of obligation in the performance of their duties. (Cf. People v. Sherwood, 271 N. Y. 427; People v. Santini, 221 App. Div. 139; affd., 246 N. Y. 612.)

It is unnecessary in view of the fundamental error already pointed out to consider other serious matters urged upon us as grounds for reversal.

The judgment of conviction should be reversed and a new trial ordered.

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

Judgment of conviction reversed, etc.


author:
Sears, J.
      Finch, J.

text:
    In the Matter of Agnes Naylor. Anna M. Langley, as Acting Superintendent of Albion State Training School, Appellant; James F. Anderson, as Special Guardian, Respondent.

      Argued October 2, 1940;
    decided November 19, 1940.

      John J. Bennett, Jr., Attorney-General (James A. Noonan and James P. Cotter of counsel), for appellant.

      James F. Anderson, as special guardian, respondent.
   Sears, J.

Section 451, subdivision 3, of article 17-A of the Correction Law (Cons. Laws, ch. 43, added L. 1935, ch. 111) permits the retention of prisoners in the Albion State Training School after the expiration of their terms upon the conditions and in accordance with the procedure set forth in section 440 of the same law. The apposite language of section 440 is as follows: When the term of a prisoner confined in such institution * * * has expired, and, in the opinion of the superintendent thereof, such prisoner is a mental defective the superintendent shall apply to a judge of a court of record to cause an examination to be made of such person, by two qualified examiners, other than a physician connected with such institution, or by one such qualified examiner and a qualified psychologist. Such examiners, or such examiner and psychologist, shall be designated by the judge to whom application is made. Such examiners, or examiner and psychologist, if satisfied, after a personal examination, that such prisoner is a mental defective, shall make a certificate to that effect in the form and manner prescribed by this article. Such superintendent shall apply to a judge of a court of record for an order authorizing him to retain such prisoner at the institution, accompanying such application with such certificate of mental defect. Such judge, if satisfied that such prisoner is a mental defective, shall issue an order of retention, and such superintendent shall thereupon retain the prisoner at the institution until discharged as provided by law.”

The statute contains this further provision: “ The costs necessarily incurred in determining the question of mental deficiency, including the fees of the examiners, or examiner and psychologist, shall be a charge upon the amount appropriated for the support and maintenance of such institution, and be paid in the same manner as are other expenses of the institution.”

Pursuant to the statutory provision and preliminary to application to a judge for the retention of Agnes Naylor, a prisoner in the Albion State Training School whose term had expired, the superintendent of the school applied to the County Judge of Orleans county to cause an examination to be made. The County Judge granted an order appointing two qualified examiners to conduct the examination, and also appointing a “ special guardian ” of the prisoner. After examining the prisoner the examiners certified that in their opinion she was a mental defective. A petition for her retention with the certificate of the examiners annexed was then presented to the same judge. Thereupon the judge caused the prisoner to appear before him twice for examination. On the second appearance the special guardian by authorization of the court called a third qualified examiner as a witness on the prisoner’s behalf. The County Judge then by order denied the application of the superintendent to retain the prisoner and in the same order fixed amounts as compensation to be paid the special guardian and the third examiner who had been called by the special guardian as a witness, and made the amounts so fixed as compensation a charge upon the appropriation for the support of the school.

Before issuing an order for the retention of a prisoner after his term has expired, the judge to whom the petition is addressed must be “ satisfied that such prisoner is a mental defective.” To assist the judge to reach his decision, the statute assures him the advice of two qualified examiners or one qualified examiner and one psychologist as the judge may determine. These experts are to be of the judge’s own choice. No provision is made in the statute for further expert advice at the school’s expense. The definiteness of the provision negatives any general power to impose further charges for experts upon the school. Statutory authorizations for expending public funds must be strictly construed. The allowance of compensation to the third examiner was unauthorized.

The statute contains no express authorization for the appointment of a special guardian. If power to appoint a special guardian or make provision • for compensation for such an officer is authorized, it must be found elsewhere. The power vested in the Supreme Court by section 207 of the Civil Practice Act, and exercisable by a County Court under section 69 of the same act, to appoint a guardian ad litem or special guardian, may be invoked “ for an infant or an incompetent.” H the prisoner was competent she needed no special guardian; and if she was incompetent she had under the statute no right to freedom, the only right that a special guardian in such a case would be called upon to protect. A special guardian is not appointed for one seeking liberty through a habeas corpus proceeding or for a person defending himself against a criminal charge and pleading insanity as a defense. Even if we assume that a proceeding to determine competency is within the purview of the statutes just mentioned, another obstacle to its application exists in this instance. Such an appointment may be made for the protection of the rights and interests of the incompetent except when it is otherwise expressly provided by law.” (Civ. Prac. Act, § 207.) Section 440 of the Correction Law provides otherwise for the protection of the rights and interests of a prisoner who is thought to be an incompetent. We cannot say that the safeguards thus provided at the expense of the State are inadequate. No other pertinent statute has been called to our attention and we have found none. There was, therefore, neither power to appoint nor need for a special guardian in this proceeding.

The order of the Appellate Division should be reversed, without costs.

Finch, J.

(dissenting in part). I agree with the majority of the Appellate Division as to the appointment of the special guardian.

It is conceded that Agnes Naylor, the alleged incompetent, had fully served out the sentence imposed upon her by the court and was entitled to her liberty. So far as any judgment of court was concerned, she could have demanded her immediate discharge from custody. A legal proceeding was then instituted against her, having for its purpose her continued retention at this institution without limit of term, upon the ground that she was incompetent and should be permanently restrained from her liberty. It is obvious that such a proceeding was of the utmost importance, both to the person- proceeded against and to the conscience of the court in arriving at a correct judgment. To have the person represented, the court appointed an attorney-at-law as guardian ad litem for the incompetent. This was especially necessary in the case at bar, because it appears in the briefs without contradiction that this alleged incompetent was hundreds of miles from her original home, her family and her friends.

In accordance with the express provisions of the Civil Practice Act: “ The supreme court may appoint a guardian ad litem or special guardian for an infant or an incompetent person, at any stage in any action or proceeding, when it appears to the court necessary for the proper protection of the rights and interests of such infant or incompetent person and fix the fees and compensation of such guardian, except when it is otherwise expressly provided by law * * (Civ. Prac. Act. § 207.)

The Civil Practice Act gives to the county judge and the Supreme Court concurrent supervision over the custody of the person and the care of the property of a person who for any reason is incompetent to manage himself and his affairs. (§ 1356.). The Civil Practice Act also provides that the County judge also possesses the same power and authority, in a special proceeding, which can be lawfully instituted before him, out of court, which a justice of the Supreme Court possesses in a like special proceeding, instituted before him in like manner.” (§ 75.) Thus the County Court has express authority to appoint an attorney-at-law as guardian ad litem for the alleged incompetent unless this power has been taken away.

Four objections are urged against this express statutory authority, permitting the judge to appoint an attorney to represent this alleged incompetent in the special proceeding before him. First, that this power expressly provided for in the Civil Practice Act, which is but an enactment in statutory form of the inherent power residing in the Supreme Court, has been expressly taken away by the provision in section 207 except when it is otherwise expressly provided by law,” and that such other provision has been made in section 440 of the Correction Law. It would seem an answer to this contention that this section of the Correction Law does not expressly or by implication negative the power of section 207 of the Civil Practice Act, but on the other hand is in accordance with the provisions of such section. In section 440, after the provision providing for the application to the judge to appoint two qualified examiners it is written that after such examination, if the certificate of these examiners recites that the person is incompetent, then the superintendent may start a proceeding to try the issue of whether the inmate is an incompetent. Section 440 then provides: “ Such judge, if satisfied that such prisoner is a mental defective.” (Italics not in original.) The expression “ such judge, if satisfied ” imports a judicial hearing on this issue. Such judicial hearing necessarily imports adequate representation of both sides on the issue presented. There is here no express or indirect provision doing away with the right of the judge to appoint a person to represent the incompetent, but on the other hand, there is direct provision that the judge must judicially pass upon this issue of competency, which necessarily implies that the parties before him must be adequately represented. Furthermore, the statute provides that the costs necessarily incurred in determining the question of mental deficiency, including the fees of the examiner, shall be a charge upon the amount appropriated for the support and maintenance of the institution and to be paid as are paid the other expenses of the instution. Since the expenses are not limited to the fees of the examiners, it must necessarily be assumed to include such other necessary expenses, such as the appointment of an attorney to represent the incompetent, as are necessary to the proper conduct of the issue presented. Therefore there is nothing in section 440 of the Correction Law which takes away from the judge the power expressly conferred upon him in section 207 of the Civil Practice Act.

Second. It is next urged as an objection to the appointment of the guardian ad litem that no guardian ad':litem is appointed by a court when an incompetent seeks freedom, because he (or she) claims that he has regained his mentality and is no longer incompetent. This case is in no way analogous to the case at bar. In the supposed analogy, the incompetent claims that the incompetency is ended and hence no representation of any sort is necessary, as the incompetent, in accordance with the claim made, is fully capable of making a defense.

Third. Next an analogy is sought from the fact that no attorney is appointed as guardian ad litem in the case when a prisoner, or those representing him, pleads insanity as a defense for crime. In such a case the prisoner is already represented or himself admits and urges the plea. In the case at bar, however, the petition or complaint against this incompetent alleges that Agnes Naylor is an incompetent; under such circumstances the afieged incompetent is as against tins institution the equivalent of an incompetent. So far as this proceeding is concerned, the State institution may not charge that Agnes Naylor is an incompetent and yet deprive her of the protection required by an incompetent. That is the involuntary charge and the court is entitled, as in every other judicial proceeding, to have the person proceeded against duly and properly represented before the court so that both sides will be able to present their cause while the court sits in judgment.

Lastly, it is suggested that since the Legislature has provided that the necessary expenses of the proceeding may be charged against the funds of the institution, waste of the funds of the institution may ensue since a guardian ad litem may be appointed when not necessary. In addition to the fact that the court may be trusted to see that no funds may be wasted, it is difficult to see how any expenditure of the funds of the institution could be more necessarily spent than in affording any human being the means to repel such a charge if unfounded. Moreover, it is of great importance to the State that no person shall be supported for the rest of his life at the expense of the State if such support is unwarranted.

As to the appointment of examiners, section 440 limits such appointments to two examiners or an examiner and a psychologist. For that reason I concur that the appointment of the third examiner was inhibited, but not so with the appointment of the attorney as guardian ad litem.

It follows that the order appealed from should be reversed in so far as it provided for the appointment of a third examiner and otherwise affirmed.

Lehman, Ch. J., Loughran and Lewis, JJ., concur with Sears, J.; Finch, J., dissents in part in opinion in which Rippey and Conway, JJ., concur.

Order reversed, etc.


author: Sears, J.

text:
    In the Matter of New York State Guernsey Breeders Co-Operative, Inc., Appellant, against Holton V. Noyes, as Commissioner of Agriculture and Markets of the State of New York, Respondent. Hugh Scott et al., Interveners, Respondents.

      Argued October 7, 1940;
    decided November 19, 1940.

      Irving G. Hubbs, Merritt A. Switzer and Henry S. Manley for appellant.

      Robert G. Blabey and Milo R. Kniffen for respondent.

      Harry D. Suitor for interveners, respondents.

      Edward Schoeneck for independent co-operatives, amici curiӕ.

      Francis L. McElroy for Metropolitan Milk Producers Bargaining Agency, amicus curiӕ.

   Sears, J.

New York State Guernsey Breeders Cooperative, Inc., challenges, in a proceeding under article 78 of the Civil Practice Act, Official Order No. 127, promulgated by the Commissioner of Agriculture and Markets on September 19, 1938. The order was issued under the authority vested in the Commissioner by sections 258-k to 258-n, inclusive, of the Agriculture and Markets Law (Cons. Laws, ch. 69, added L. 1937, ch. 383 — The Rogers-Allen Act).

The Niagara Frontier Co-operative Milk Producers Bargaining Agency, Inc., representing approximately eighty-five per cent of the milk producers in the production area supplying the Niagara Frontier Marketing Area, informally petitioned the Commissioner of Agriculture and Markets to conduct a public hearing upon a proposed milk marketing order which had been unanimously approved by the delegates of the bargaining agency. The petitioner in this proceeding was a member of the bargaining agency and its delegate had approved the proposed order and the petitioning of the Commissioner for a hearing thereon.

The proposed order provided, among other things, for (1) the classification of milk received by marketers at plants to supply the marketing area as follows: Class 1, milk which leaves the plant where received as whole milk; Class 2A, milk which leaves the plant where received in the form of fluid cream; Class 2B, milk used in the manufacture of ice cream, and purposes not otherwise described; Class 4A, milk made into butter; (2) the establishment of minimum prices for milk used in each class; (3) the fixing of a uniform price (subject to certain differentials) to be paid by marketers for all milk regardless of the use made thereof; (4) the creation of an equalization fund into which each marketer would pay the amount of the purchase price in excess of the uniform price, and from which each marketer would draw for payment to its producers the amount by which the purchase price fell below the uniform price, “ so as to bring all lower rates of payment up to the uniform price,” and to reduce all higher rates to the uniform price. Price differentials were provided for butterfat content, market service, and for milk sold as Guernsey milk. The differential in favor of milk sold as Guernsey milk was thirty cents per hundredweight, to be paid by the marketers.

The Commissioner gave the required notice of the hearing upon the proposed order. At the hearing petitioner’s representative and business manager testified that petitioner had forty-five members in the marketing area, “ a drop in the bucket ” as there were over 3,000 producers in the area; that the presentation he was about to make was not at all in opposition to the order or to any principle involved in it; that the provision in the proposed order for a premium of thirty cents per hundredweight for milk sold as Guernsey milk placed his association under a handicap in selling the milk of its forty-five members in this market; that Guernsey milk is different from all other milk, not only in its richness in butterfat, but also in its fine color, flavor, vitamin activity, minerals and other characteristics; that petitioner, among others, had identified its milk by the registered trade-mark, “Golden Guernsey”; that its superiority as a table milk had been advertised in a national way; that petitioner had devoted a great deal of money and effort to “ build up ” for Golden Guernsey milk a definite place in the fluid markets in each city; that it costs more to produce milk from Guernsey cows than from some other breeds; and that the provision in the proposed order for Guernsey milk was not in the interest of consumers and might under some circumstances be very much against the interest of Guernsey producers. On the basis of these facts, he requested “ That the Commissioner amend this proposed order by striking out from it the provision imposing an extra thirty cents per hundredweight ‘ for milk sold as Guernsey milk ’ and insert therein a provision somewhat like that requested for the New York City order which will exempt from equalization milk of certain breed characteristics and market identity.”

It appears that petitioner at the hearing opposed the premium on Guernsey milk under the equalization plan, primarily because, to its collective mind, complete exemption would be more advantageous and equitable. It was not averse to separate treatment of Guernsey milk. Indeed, no one was. Another spoke in opposition to the premium, but she also opposed the entire equalization plan.

After the hearing and after a referendum that showed that over seventy-five per cent of' the producers affected favored it, the Commissioner promulgated Official Order 127. The final order conformed with the proposed order in essentials, except that no provision whatsoever was made in it for a price differential for milk sold as Guernsey milk. The differential of thirty cents per hundredweight was struck out as requested, but the correlated alternative asked by petitioner, complete exemption, was not inserted.

The order announcing the adoption and promulgation of Official Order No. 127, after reciting the steps taken, reads:

“ Now, therefore, upon the basis of the testimony given at such public hearing, and upon information otherwise obtained concerning conditions existing in the milk industry in the Niagara Frontier Milk Marketing Area, I do hereby find:

1. That conditions exist in the Niagara Frontier Milk Marketing Area so affecting the orderly marketing of milk in such area that it is in the public interest that prices of milk in such area be regulated; and

2. That the public interest requires that the public policy declared in Section 258-k of this chapter shall be made effective; and

3. That upon the basis of a referendum conducted by me, Official Order No. 127 regulating the handling of milk produced in the production area for the said Niagara Frontier Milk Marketing Area is favored by more than seventy-five per centum of the producers of milk produced in such production area; and

“ I do hereby direct that the provisions of said Official Order No. 127 shall be effective on and after 12:01 a. m. Eastern Standard Time, October 1, 1938, * * * ”

These findings satisfy, in general, the prerequisites to the issuance of such an order specified in the statute. (L. 1939, ch. 760, § 258-m, subd. 1.) The preamble to the findings, quoted above, was taken from the statute. The words “ upon information * * * otherwise obtained ”

have been deleted from the section since the promulgation of the original order, and presumably the order has been repromulgated by legislative authorization solely upon the basis of the testimony given at the public hearing. (L. 1939, ch. 760, § 3, amending § 258-k of the Agriculture and Markets Law — Order of the Commissioner of Agriculture and Markets, June 28, 1939.)

The statutory power of the Commissioner to grant differentials is contained within the provision relating to the equalization of prices, subdivision 6 of section 258-m of article 21 of the Agriculture and Markets Law (added L. 1937, ch. 383) which we held to be constitutional in Noyes v. Erie & Wyoming Farmers Co-op. Corp. (281 N. Y. 187). The section reads, in part, as follows: If approved by seventy-five per centum of the producers affected, any order * * * may provide for an equalization of prices to all producers of the production area of the market affected so that each producer or co-operative association shall receive the same base price for all milk delivered subject to reasonable differentials for quality and location and for services.”

The essence of the scheme is equality. Realizing that this might not be attained by a more general provision, the Legislature gave the Commissioner power to determine the existence of special circumstances and to grant differentials. That the Commissioner, under this section, has the power to grant a differential where it is shown that there exists a distinct difference in production costs, quality or marketability of milk of one breed of cows from that of other breeds, cannot be doubted. Otherwise, in nominal equality may lurk actual inequalities. As an issue in relation to the existence of a difference in the production costs, quality and marketability of Guernsey milk and of milk of other breeds, that could not be measured by butter fat content alone, was presented at the hearing, the order promulgated by the Commissioner is a determination by omission that

such a difference does not exist or that it is immaterial. The determination thus made is judicial in nature rather than administrative. (Matter of Nash v. Brooks, 276 N. Y. 75; Matter of N. Y. Edison Co. v. Maltbie, 271 N. Y. 103.) The mandate for a public hearing and notice thereof imports the obligation to consider whatever testimony is given. In order that the basis for the determination may be definite and certain where issues of fact are presented and in order that the determination may be reviewed, a duty is imposed upon the determining body or officer to set forth the factual grounds of the decision. (Matter of N. Y. Water Service Corp. v. Water P. & C. Comm., 283 N. Y. 23.) This is particularly so where the relief sought is denied. (Matter of Elite Dairy Products, Inc. v. Ten Eyck, 271 N. Y. 488.) Here, the only express findings made by the Commissioner related to the necessity for the order and its approval by more than seventy-five per centum of the producers. The sufficiency of these findings as meeting the statutory requirement is not questioned, but their adequacy to determine the issue of fact raised by the petitioner’s showing at the hearing is questioned. No mention is made in the order of the specific conditions brought out by the testimony of petitioner’s representative. We do not know what circumstances prompted the Commissioner to reject this seemingly uncontroverted testimony, nor do we even know that it was considered. It may well be that the Commissioner concluded that petitioner desired exemption or nothing, and doubted whether he had power to grant such an exemption. If so, his doubt found support in the later amendment to section 258-m of the Agriculture and Markets Law (L. 1939, ch. 760, § 2, effective June 7, 1939), to wit: “ Such equalization shah include milk of all grades and produced by all breeds of cows.” (Subd. 6.) However, we conclude that petitioner’s attitude does not justify this conclusion. Petitioner brought its special problem to the attention of the Commissioner and coupled its opposition to the method proposed to solve this problem with a request that it be completely exempted from participation in the equalization plan. To ignore the issue presented upon a doubtful interpretation of petitioner’s statement of its case at the hearing, is contrary’ to the spirit of the law and imperils the operation of the plan.' It was the Commissioner’s duty to determine the existence of conditions affecting the equitable application of the proposed order, and to make appropriate modifications shown j by the evidence to be necessary. In any event, petitioner,)' upon this record, was entitled to know the basis of the Commissioner’s order in so far as it denied a differential in favor of milk sold as Guernsey milk.

Nor do we find in this record any equitable reason for silencing petitioner in the assertion of its rights. Opposition to the proposed order in its specific application was consonant with an indorsement ofjts promulgation in general. But even if there were an inconsistency, there was certainly no change in position in reliance upon the previous conduct of petitioner.

The absence of adequate findings of fact in respect to the uncontroverted evidence introduced at the hearing upon the proposed order by petitioner compels us to reverse the order of the Appellate Division and the^order of the Commissioner of Agriculture in so far as they deny a differential in favor of milk sold as Guernsey milk, and to remit the matter to the Commissioner solely in respect thereto with instructions to make the necessary findings of fact, either upon the evidence introduced or upon the evidence that may be introduced upon another hearing, if the Commissioner deems one desirable, with leave to any party appearing, if another hearing is had, to introduce new evidence; and with instructions to make any necessary adjustment of petitioner’s obligations and benefits under the equalization provision in the order in accordance with whatever determination the Commissioner may make; otherwise, the orders should be affirmed, all without costs.

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

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

Ordered accordingly.