author:
DesmoND, J.
      Thacher, J.

text:
    Tams-Witmark Music Library, Inc., Appellant, v. New Opera Company, Inc., Respondent, and Daniel L. Brown, Impleaded Defendant-Appellant, et al., Defendants.
    Argued March 9, 1948;
    decided July 16, 1948.

      Albert B. Connelly, George S. Collins and Jack, W. Bobbins for appellants.
    I. Irrespective of the validity or invalidity of plaintiff’s copyright, defendant’s agreement to pay royalties in respect of a period prior to termination of the license is enforcible. There was no failure of consideration because in fa.ct defendant received everything for which it bargained, irrespective of the validity of the copyright, and enjoyed substantial benefits under the contract. (Marston v. Swett, 66 N. Y. 206; Hyatt v. Bale Tile Mfg. Go., 106 N. Y. 651, 125 U. S. 46; Farnsworth v. Boro Oil & Gas Go., 216 N. Y. 40; Palmer v. Be Witt, 47 N. Y. 532; Saltus v. Belford Go., 133 N. Y. 499.) II. Defendant is estopped to deny the validity of plaintiff’s copyright. (Prevot v. Lawrence, 51 N. Y. 219; Simmer v. Wood Mowing & Reaping Machine Co., 140 N. Y. 217; Saltus v. Bel-ford Co., 133 N. Y. 499; Sola Elec. Go. v. Jefferson Elec. Go., 317 U. S. 173; McGregor v. Westmghouse Go., 329 U. S. 402.) III. The fact that plaintiff’s title was expressly warranted does not affect the insufficiency of the defense. (Vernam v. Smith, 15 N. Y. 327; Rosenthal Paper G'o. v. National Folding Box and Paper Go., 226 N. Y. 313; Marston v. Swett, 66 N. Y. 206; Herzog v. Heyman, 151 N. Y. 587; O’Brien v. Jones, 91 N. Y. 193; McGiffin v. Baird, 62 N. Y. 329; Burt v. Bewey, 40 N. Y. 283; Gase v. Hall, 24 Wend. 102.) IY. Defendant’s refusal to pay royalties did not constitute- repudiation of the license. (Slcinner v. Wood Mowing & Reaping Machine Go., 140 N. Y. 217; Hyatt v. Bale Mfg. Go., 106 N. Y. 651, 125 U. S. 46; Hyatt v. Ingalls, 124 N. Y. 93; Hurd v. Gere, 27 App. Div. 625; Skidmore v. Fahys Watch Gase Go., 28 App. Div. 94; Martin v. New Trinidad Lake Asphalt Go., 182 App. Div. 719; Heller & Son, Inc., v. Lassner Go., 214 App. Div. 315; Frost Railway Supply Go. v. T. H. Symington & Son, 24 F. Supp. 20.) V. Plaintiff had and still has a valid common-law copyright in and to the stage performing rights to the Merry Widow operetta. (Boucicault v. Wood, 3 Fed. Cas. 988; Baly v. Wal-rath, 40 App. Div. 220; Jewelers’ Mercantile Agency v. Jewelers Weekly Publishing Go., 155 N. Y. 241, 84 Hun 12; Coliga v. Inter Ocean Neivspaper, 215 U. S. 182; Heim v. Universal Pictures Go., 154 P. 2d 480; Osgood v. A. S. Aloe Instrument Go., 69 P. 291.)

      Louis Okin, Millard H. Ellison and Saul J. Baron for respondent.
    I. Defendant-respondent’s predecessor obtained a statutory copyright in 1907; thereby his common-law rights were extinguished; his acts and statements are binding on appellants. (Bavies v. Bowes, 209 P. 53; M. Wiimark & Sons v. Standard Music Roll Go., 221 P. 376; Chautauqua School of Nursing v. National School of Nursing, 211 P. 1014; M. Witmark & Sons v.

   DesmoND, J.

In 1943, plaintiff, as agent for an undisclosed , principal (who turned out to he defendant-appellant Brown) in an agreement to which we shall refer hereafter, granted to defendant New Opera a license or permit to produce the operetta The Merry Widow ” in New York City. That writing contained a recital that plaintiff represented “ the owners of the stage performing rights for the United States ” of the operetta, and a warranty, on behalf of the owner ” that it (the unnamed person) was the “ sole owner of the stage and public performing rights for the United States and Canada of the dramatico-musical composition Merry Widow ” and had the right to make ’ ’ the agreement. Pursuant to that agreement the operetta was produced by defendant New Opera, which, according to the contract terms, paid to plaintiff about $50,000 in royalties. That 1943 contract contained a provision giving New Opera an option for a second license to cover a “ road tour ” outside New York City. Defendant exercised this option and in 1944, a new agreement was made and a second license or permit granted. Defendant New Opera then began to perform under that second contract. About a month after that second contract had been entered into, defendant New Opera notified plaintiff that it would pay no more royalties because it had discovered, it said, that Brown’s copyright had expired some years before. Plaintiff then brought this suit for royalties due under the second contract, and on the trial proved that they amounted to a little less than $9,000. Defendant New Opera put in two counterclaims. In each of those counterclaims, New Opera demanded return to it by plaintiff and Brown of $50,526.13, being the amount paid to-plaintiff under the first contract, plus $1,000 paid under the second contract. Both counterclaims went the theory that neither plaintiff nor plaintiff’s principal, defendant Brown, owned the stage performing rights of the-Merry Widow, which stage rights, according to defendant New Opera, were and are in the public domain. The first counterclaim demanded the money back on the theory of failure of consideration and the second on the theory of breach of warranty, but each claim demanded back all the money paid by defendant New Opera to plaintiff, on both contracts. The case went to trial in Supreme Court, New York County, before a jury. The only question submitted to the jury was as to whether the version of the operetta licensed by plaintiff to defendant New Opera was substantially identical with the version which one Savage (Brown’s predecessor in interest) had copyrighted or attempted to copyright in 1907. The jury decided this issue in favor of New Opera, and it is now out of the case. The Trial Judge had instructed the jury that if it so found, the verdict would have to be for defendant New Opera. The jury accordingly rendered a verdict in favor of defendant New Opera against plaintiff and defendant Brown on the counterclaims, in the full amount of $50,526.13 with interest.

Plaintiff and Brown appealed to the Appellate Division, First Department, which modified the judgment below as follows: it held that, in view of certain recitals in the second (1944) agreement, there was a question of fact which should have been submitted to the jury as to whether defendant, in the 1944 agreement, had released any claim for the return of its money on the first agreement; the Appellate Division held that otherwise the judgment was not erroneous, so it reduced the amount of the recovery on the counterclaims to the $1,000 advanced under the second contract, and severed the issue as to the amount paid under the first contract, ordering a new trial with respect to that latter amount. Plaintiff appealed to this court from so much of the judgment as affirmed the judgment dismissing its complaint and awarding $1,000 on the counterclaims to defendant New Opera against plaintiff and against defendant Brown. Defendant Brown appealed from said award on the counterclaims only. A motion by defendant-respondent New Opera to dismiss, for asserted nonfinality, so much of the appeal as relates to the judgment on its counterclaims is being denied herewith (see 298 N. Y. 616)..

Shortly stated, the contentions, in this court, of appellants (plaintiff and defendant Brown) are these: first, that Savage, Brown’s predecessor, never obtained a valid statutory copyright because he did not comply with the Federal copyright statute as of 1907, and that accordingly Brown, as Savage’s successor, retains to this day Savage’s common-law rights; second, that the statutory copyright purportedly issued to Savage in 1907, was invalid because, according to appellant, Savage was not authorized to apply for copyright under his own limited grant of rights from one Edwardes, proprietor of the operetta, for which reason again, say appellants, the common-law rights of Savage and his successors continued and continue to exist; third, that defendant New Opera Company, as a licensee from plaintiff and the latter’s principal Brown, is estopped from questioning its licensors’ interest and title; and, fourth, that defendant New Opera Company cannot question the rights of plaintiff and Brown because New Opera failed, on discovering the facts as to expiration of the Savage statutory copyright, to serve definite notice that it (New Opera) was completely repudiating the license agreement. Appellants thus find themselves in the position, unusual for licensors, of asserting that their predecessor’s statutory copyright was entirely invalid, this of course so that they can fall back on that predecessor’s common-law rights.

The really material facts are few. The operetta was composed in Vienna in 1905, in the German language, and the composers soon afterwards conveyed all their rights to certain citizens of Germany. The latter thereupon assigned their rights, or some of them, as to the English-speaking countries, to George Edwardes, who was a London theatrical producer, and friend and frequent business associate of Savage. Edwardes had the work translated into English and then, by written agreements set out in this record, assigned all the production and performing rights for the United States and Canada to Savage, a prominent American producer of musical comedies, etc. Savage’s presentation of The Merry Widow in New York and elsewhere in the United States, beginning in 1907, was a success. Before the show opened, Savage had, earlier in 1907, applied to the United States Copyright Office for a statutory copyright, describing himself as proprietor ”. It is undisputed that two copies of the book and score were deposited by him in the Library of Congress, as required by the statute, and that under date of May 24, 1907, the copyright office issued to him a formal certificate of copyright. Savage continued for many years to act publicly in every respect as the copyright owner of this work, bringing several infringement suits against others, and (in 1908) copyrighting a novel or serial story of “ The Merry Widow ”. The Savage copyright expired at the end of its statutory term in 1935, and no attempt was made to revive it. At Savage’s death in 1927, defendant Brown had succeeded to his rights, and plaintiff was, from 1926 on, the authorized agent of Savage, and later of Brown, for the “ leasing ” of The Merry Widow. The time came when defendant New Opera Coirtpany, desiring to stage a revival of The Merry Widow, made with plaintiff the two agreements hereinabove referred to, with the sequelae above described.

We now take up, as against those facts, appellants’ law points, each of which was overruled by the trial court (and presumably by the Appellate Division). As to whether or not Savage had any express authority from Edwardes to take out an American copyright, there is no direct evidence, one way or the other, but Savage certainly acted openly in the matter and there is not the slightest suggestion that his activities were'in antagonism to any rights of Edwardes. Apparently, authority to apply for a statutory copyright is quite readily implied from such facts (Mifflin v. R. H. White Co., 190 U. S. 260, and cases cited). Even mere possession of the manuscript is some evidence of the right to apply for copyright (Gerlach-Barklow Co. v. Morris & dien, Inc., 23 F. 2d 158, 161). Savage did procure the issuance to himself of an official certificate of copyright which again is some proof that he actually got a valid copyright (see Chautauqua School v. National School, 211 F. 1014; M. Witmark & Sons v. Calloway, 22 F. 2d 412; Ball on the Law of Copyright and Literary Property, p. 601). "With all this proof of public and long-continued activity by Savage in the role of proprietor, and with no contrary proof offered by appellants, presumptions are very strong in favor of Savage’s right to copyright, and of .his actual ownership of the American copyright (Belford v. Scribner, 144 U. S. 488, 504; Eyre v. Higbee, 35 Barb. 502, 509-511; O’Neill v. General Film Co., 171 App. Div. 854). In this connection, we state that we are not grounding our conclusion as to Savage’s rights on the stipulation made in the course of the trial by all parties, which included this language: “ that Henry W. Savage had all of the rights that George Edwardes had in and to the operetta The Merry Widow. ’ ’ Taken literally, that would dispose of all question of Savage’s authority to copyright, but since there is some doubt as to the precise import of that language as used at the particular juncture in the trial, we do not hold appellants to its face meaning.

Next, appellants assert that Savage never got a valid" statutory copyright because he failed, they say, to “ publish ” the work as required by the copyright laws. There is a convincing line of authority that the formal deposit by the alleged proprietor of copies of the work, which deposit is here undisputed, plus the later public performance of the play, satisfied all the requirements of the Federal statute as of 1907 (Stern v. Jerome H. Remick & Co., 175 F. 282; Cardinal Film Cory. v. Beck, 248 F. 368; Atlantic Monthly Co. v. Post Pub. Co., 27 F. 2d 556, 557, 558; Patterson v. Century Productions, Inc., 93 F. 2d 489, 492; Jewelers’ Mercantile Agency v. Jewelers’ Pub. Co., 155 N. Y. 241, 251; Amdur on Copyright Law and Practice, § 20). A Federal district court in Massachusetts has- so held as to this very copyright, and as against this same appellant Brown (Brown v. Select Theatres Corp., 56 F. Supp.

” nThe Remaining question is as to whether New. Opera, as a licensee, was estopped from denying the validity or existence of its licensor’s pretended rights. The traditional law of estoppel as to licensees of allegedly copyrighted material is substantially the same as applies to a licensee under patents (see Saltus v. Belford Co., 133 N. Y. 499, 502, 503). It is well illustrated by the two opinions of this court in Marston v. Sweet, found at 66 New York 206 and 82 New York 526, where it was held, in substance, that a licensee under an apparently valid patent (or copyright) was estopped from asserting the later-discovered invalidity of the patent (or copyright). But there never was any reason why the old estoppel rule (or the corollary rule requiring a licensee definitely to renounce his license before defending against the licensor), should apply as to expired patents or copyrights, and nothing to show that it even was so applied either in the Federal courts or our State courts (see Amdur on Copyright Law and Practice, p. 829; Dueber Watch-Case Mfg. Co. v. Robbins, 75 F. 17, 26; Stimpson Computing Scale Co. v. W. F. Stimpson Co., 104 F. 893, 895; Demco, Inc., v. Doughnut Mach. Corp., 62 F. 2d 23, 26, certiorari denied 288 U. S. 605). Since the only office of the estoppel was to give an added protective right to the holder of a statutory monopoly, when the monopoly expired by the statute which created it, there was no further use for the protection. And, whatever was the law, in other days and under earlier decisions, as to the coverage of such an estoppel, it is no’ longer the law, it seems, that a licensee, by taking out and acting under a license, is estopped from denying that his licensor’s monopoly has expired. Scott Paper Co. v. Marcalus Mfg. Co. (326 U. S. 249, 256, 257-258, supra) not strictly applicable here because it dealt with alleged estoppel as against an assignor) says that the enforcement of estoppel after expiration “ is inconsistent with the patent laws which dedicate to public use the invention of an expired patent ”, and that, after expiration, “ the rights in the invention are then no longer subject to private barter, sale, or waiver ”. Two later cases: Katzinger Co. v. Chicago Mfg. Co. (329 U. S. 394) and MacGregor v. Westinghouse Co. (329 U. S. 402) have, in ultimate effect, put an end to the doctrine that a licensee cannot ordinarily challenge the validity of a patent, although everyone else may. The result of these recent Supreme Court decisions seems to be no less than this: that, except under special circumstances, a licensee of a patent (and, presumably of a copyright) is not estopped from questioning the validity or the existence of his licensor’s patent or copyright. '!If it be argued that this question of estoppel is one of contract under our State laws, rather than of special Federal copyright law, then so much the worse for appellants. Looking at the case as a problem in contract law, we have appellants expressly warranting that they are the sole owners of the right to produce the opus, then payment by respondent, then ■ discovery by respondent that it got nothing for its money, since appellants had no rights at all and the operetta belonged to the public. A clearer case of total breach of warranty and total, failure of consideration could hardly be imagined. /'

Thacher, J.

(dissenting). The license agreements in this case purported to grant performance rights to the defendant for which it agreed to pay royalties. For some time these royalties were paid, but, having learned of the ruling in Brown v. Select Theatres Corp. (56 F. Supp. 438) the licensee withheld payment of future royalties and demanded repayment of royalties previously paid. Withholding payment of royalties and deposit of the royalties withheld in a special account, pending determination of the licensor’s rights in “ The Merry Widow ”, cannot be taken as a renunciation of the license agreement. The licensee clearly intended to retain whatever protection the license gave it and declared its intention that no one’s rights should be prejudiced. To this end the unpaid royalties were deposited and earmarked in a special account. Not having repudiated the license agreement, the defendant licensee, continued to produce the play, and two questions are presented upon this record: (1) is the licensee liable for royalties as they accrue, and (2) may the licensee recover past royalties paid by him?

Having agreed to pay royalties for a license to produce the play, the licensee remained liable unless and until it renounced the license and the right to rely upon it if sued for infringement. (Saltus v. Belford Co., 133 N. Y. 499; Marston v. Swett, 66 N. Y. 206, cf. same case, 82 N. Y. 526; Hyatt v. Tile Mfg. Co., 106 N. Y. 651, affd. sub non. Dale Tile Mfg. Co. v. Hyatt, 125 U. S. 46, opinion in Court of Appeals by Peckham, J., reported in footnote, 125 U. S. 46, 49; Hyatt v. Ingalls, 124 N. Y. 93; Outcault v. Bonheur, 120 App. Div. 168; Drackett Chemical Co. v. Chamberlain Co., 63 F. 2d 853.)

Although it is often said that the licensee is estopped to deny the licensor’s title, the question involved is not one of copyright but simply of contract, as we held in Saltus v. Belford Co. (supra).

I find no evidence in the record to support any claim of fraudulent misrepresentation by the licensor which would vitiate the agreement, and in this connection it is to be noted that the licensee has neither repudiated the agreement nor returned or offered to return the dramatic scripts, musical scores and other ‘material relating to the dramatic production of “ The Merry Widow ” delivered pursuant to the contract. Outcault v. Bonheur (supra) is authority for requiring payment of royalties under such circumstances.

Nor is Scott Paper Co. v. Marcalus Mfg. Co. (326 U. S. 249, 254) in point on that question. In that case-it was held that the patent laws requiring dedication of the invention to the public upon the expiration of the patent precluded the invocation of the doctrine of estoppel. Quite obviously, when a patent expires, licenses under the patent necessarily expire with it. Perhaps, if in this case the license had been grounded upon a statutory copyright, that might also be the effect of the expiration of the statutory copyright. But the subject matter of the license agreements in this case was the sole right to produce the operetta in the United States and Canada and there was neither reference to the statutory copyright or its e'xpiration nor proof that the licensee or the licensor had knowledge thereof.

The licensee was bound to perform the terms of the license agreement at least until it did renounce the licensor’s right to require a license to produce “ The Merry Widow ”. Since no such renunciation was ever made, the licensee continued liable for the royalties as they accrued and was not entitled to recover royalties which had been paid. The rejection óf a claim for patent royalties because of asserted invalidity of a patent without unequivocal renunciation of its protection does not relieve the licensee of the obligation to pay royalties (Skinner v. Wood Mowing & Reaping Mach. Co., 140 N. Y. 217).

In my opinion the judgment of the Appellate Division should be reversed and the matter remitted to the Supreme Court with directions to enter judgment in favor of plaintiff in the sum of $8,888.25 on its complaint, and dismissing the counterclaims.

LougheaN, Ch. J., Lewis and Fuld, JJ., concur with Des-moNd, J.; Thacheb, J., dissents in opinion in which and Dye, JJ., concur.

J udgment affirmed.


source: Caselaw Access Project

author: Dye, J.

license: Public Domain

text:
    The People of the State of New York, Respondent, v. Felix Adamkiewicz, Appellant.
    Argued June 7, 1948;
    decided July 16, 1948.

      J. Howard Rossbach, Martin Erdmann and Martin V. Callagy for appellant.
    I. As a matter of law, the evidence was insufficient to sustain a finding that appellant was guilty beyond a reasonable doubt. II. The court below erred in its application of the statutes involved. (People v. Glassman, 255 App. Div. 997; People v. Razezicz, 206 N. Y. 249; People v. Fitzgerald, 156 N. Y. 253.) III. The court below erred in construing the Penal Law so as to make criminal the possession of a tool or household utensil. Possession of a tool or a utensil is a normal occurrence, and a statute which attempts to make such normal conduct unlawful must be clear and definite — otherwise the statute would be too uncertain to be sustained. Acts otherwise innocent and lawful do not become criminal unless there is a clear and positive expression of the legislative intent to make them criminal. ■ (People v. Bene, 288 N. Y. 318; People v. Shahun, 251 N. Y. 107; People v. O’Gorman, 274 N. Y. 284.) IY. The Legislature did not intend to extend the presumption of unlawful intent through possession to utensils such as ice picks. (People v. Panitz, 251 App. Div. 276; People ex rel. Dixon v. Lewis, 249 App. Div. 464.)

      Whitman Knapp of counsel), for respondent.
    Defendant was properly convicted of unlawfully possessing and carrying a weapon. (People v. Panitz, 251 App. Div. 276; People v. McPherson, 220 N. Y. 123; People v. Visarities, 220 App. Div. 657; People v. Glassman, 255 App. Div. 997; People v. Quintana, 260 App. Div. 13.)
   Dye, J.

This appeal by permission brings np for review the applicability of section 1897 of the Penal Law to appliances or instruments not mentioned therein and which may be innocently carried or possessed as an article, instrument or tool of ordinary use and yet by their very size, nature and inherently dangerous and lethal characteristics, may be concealed on. the person and capable of inflicting great bodily harm when used unlawfully against another. Because the statute makes unlawful intent a necessary element of the crime, we desire to comment on whether such unlawful intent may be presumed from possession (Penal Law, § 1898) or must be established beyond a reasonable doubt by competent proof. The dangerous weapon, for possession of which conviction was had in the instant case, was an ordinary ice pick, an item not included among those mentioned in the statute which we note fall into two categories, one of which enumerates certain specified items by name, viz., a blackjack, slungshot, billy, sandelub, sandbag, metal knuckles, bludgeon, possession of which constitutes a crime without more, as unlawful intent is presumed (Penal Law, § 1898). The other category mentions a variety of enumerated items such as a dagger, dirk, dangerous knife, razor, stilletto, imitation pistol, machine-gun, sawed off shot-gun,” and in addition, includes “ any other dangerous or deadly instrument, or weapon ” (Penal Law, § 1897, subd. 1). An ice pick then, if it is to be regarded as covered by the statute must fall into that group generally designated as “ any other dangerous * * * weapon ” because of its obviously inherent dangerous and lethal character. The applicability of the statute to such type of instruments, tools or weapons has been accompanied with some confusion, it having been ruled in People v. (251 App. Div. 276), that possession of a bayonet which accused sought to explain by claiming that it was an antique which he intended to use for a 'fireplace mantel decoration was held to be within the statutory definition and that intent to use unlawfully could be' presumed from its possession. In People v. Glassman (255 App. Div. 997), a conviction for carrying and possessing an ice pick under section 1897 was reversed for lack of proof of unlawful intent beyond reasonable doubt although the court said it assumed hut did not decide that an ice pick was a dangerous weapon within the meaning of the statute. We conclude that the statute is broad enough, under the rule of ejusdem generis in statutory construction and interpretation, to include an ice pick (McKinney’s Cons. Laws of Y., Book 1, Statutes [1942 ed.], § 239). This is not seriously disputed by the appellant who contends that the necessary accompanying element of intent to use unlawfully against another was not established beyond a reasonable doubt. If the instrumentality or weapon possessed is one of those specifically mentioned in the statute, then such intent is presumed from possession without more (Penal Law, § 1898) and this applies to items which ordinarily and readily fall within the group of items so specified. To illustrate: in People v. McPherson (220 N. Y. 123), we held that the question whether a portion of a boy’s baseball club concealed on the person of the accused was a bludgeon within the meaning of the statute was properly submitted to the jury and that there was evidence to support its verdict.

Having concluded that an ice pick is a dangerous weapon within the generality of the statute, we must also conclude that the Legislature intended by the language used to indicate that intent to use the same unlawfully against another is a necessary ingredient which must be established in order to constitute the crime. Viewing the matter in this light something more than mere possession was required to support a conviction for violation. To apply the statutory presumption to the possession of a tool of everyday use violates the spirit and intent of enforcement’procedure. Acts otherwise innocent and lawful do not become criminal unless there is a clear and positive expression of legislative intent to make them criminal (People v. Benc, 288 N. Y. 318; People v. Shakun, 251 N. Y. 107; People v. O’Gorman, 274 N. Y. 284). It seems clear therefore, that when the Legislature specifically designated certain instruments and weapons (Penal Law, § 1897) and then provided that “ the possession * * * of any of the weapons, instruments or appliances specified in section eighteen hundred and ninety-seven * * * is presumptive evidence of carrying, concealing or possessing with intent to use the same in violation of this article ”, (Penal Law, § 1898) they intended to thereby limit the applicability of the presumption to possession of those specified and such others as naturally fall into the same grouping; and that to constitute a crime for possessing those instruments or weapons falling within the generality of the statute there must he proof of an intent to use the same unlawfully against another. Under this view, the presumption of section 1898 is not available to the People in this instance.

Let us now pass to the proof to see whether it is sufficient to support the conviction.

" What remains of a very thin record after giving effect to proper objections and motion to strike improper testimony shows that about midnight April 15, 1947, the defendant-appellant and an unnamed companion went to the apartment of Jose Manuel Oler, the complaining witness, who testified that he heard a knock on his door and a voice saying: “ A friend of yours is at the door. Open.” He opened the door, and the defendant and his companion both of whom he knew, pushed their way into his apartment. There was some conversation in Spanish between the witness and the defendant’s companion which after objection was stricken out, as it was conceded that the defendant did. not understand Spanish and took no part in the conversation. The witness then was allowed to testify that he ordered them to leave and when they failed to do so, ran to a nearby table, snatched up a bread knife and held it up against the two boys. He then took the ice pick from the sheath attached to defendant’s belt. This witness also testified that the defendant throughout the incident, made no threats nor threatening gesture nor did he say or do anything to indicate an intent to use the ice pick to inflict bodily harm, nor did he make any attempt to use it.

In the meantime the wife of the complaining witness fled from the apartment for assistance. The superintendent of the building arrived in a few minutes and testified that the defendant and his companion were sitting in chairs while Oler was standing in the middle of the floor; that he saw an ice pick lying on a dresser and an ice-pick sheath attached to defendant’s belt and that all conversation carried on between Oler and the unnamed Cuban boy was in Spanish; that during this time the defendant sat quietly in a chair. police officer who made the arrest testified that on the day the defendant told him that there had been trouble in the apartment the night before ” and that “ be bad come back to settle with Oler for tbe nigbt before that be freely admitted tbe ownership of tbe ice pick and explained that be nsed it in bis work as an iceman, tbe truth of which was verified, and that be bad no intention to use it on tbe man nor bad be made any attempt to do so. Tbe police officer admitted on cross-examination that be did not see tbe defendant have the ice pick or make any attempt to use it.

Tbe sufficiency of tbe proof of intent to use unlawfully must depend on the inference to be drawn from the midnight visit, tbe pushing in of tbe door after it bad been voluntarily opened by tbe complaining witness and tbe defendant’s subsequent statement to tbe police officer that be went there to settle for tbe nigbt before. There is nothing else such as threats, threatening gestures or conduct indicating intent to use tbe ice pick. Possession of tbe ice pick was originally innocent and permissible as an article of use in a recognized trade. Was this possession translated into a crime by tbe above meager evidence to show unlawful intent? We think not, as it fails to support tbe burden of proof. In the instant case the ice pick was not concealed but was being carried openly in a sheath attached to the defendant’s belt, which is tbe normal and everyday manner of carrying such tool by an iceman in pursuit of bis occupation. In any event tbe statutory presumption is subject to rebuttal and all tbe proof of tbe surrounding facts and circumstances lead to tbe conclusion that tbe statutory presumption, if it was ever available, has been rebutted and that tbe People failed to sustain their burden of proving intent to use unlawfully beyond a reasonable doubt.

Tbe judgments should be reversed and tbe information dismissed.

Cb. J., Lewis, DesmoNd, Thacher and Fuld, JJ., concur; CoNway, J., taking no part.

Judgments reversed, etc.


author: Per Curiam.

text:
    In the Matter of the Claim of Marguerite Hill, Respondent, against Samaritan Hospital et al., Respondents, and New York Hospital et al., Appellants. Workmen’s Compensation Board, Respondent.
    Submitted June 9, 1948;
    decided July 16, 1948.

      Jeremiah F. Connor for appellants.
    I. The claim against the New York Hospital is barred because of the failure of the claimant to file such claim within two years prior to February 10, 1942, the date of disablement. (Matter of Twonko Y. Rome Brass & Copper Co., 224 N. Y. 263; Matter of Lissow v. Mabbett Motors, Inc., 279 N. Y. 585; Matter of Duquette v. General Elec. Co., 257 App. Div. 881; Matter of Casale v. Rockioood & Co., 259 App. Div. 767.) II. The claim against the New York Hospital is also barred under section 40 of the Workmen’s Compensation Law because the disease at the New York Hospital was contracted more than twelve months before the date of disablement. (Matter of Crowley v. Yonkers Herald Pub. Co., 250 App. Div. 670, 275 N. Y. 571.)

      Fred J. Murray for respondents.
    I. The claim against the New York Hospital was duly filed and was not barred because of the Statute of Limitations. (Matter of Lais v. Isaac Goldwin Co., 252 App. Div. 905.) II. In view of the provisions of section 45 of the Workmen’s Compensation Law, claimant was not required to give notice of any kind to the New York Hospital nor was she required to file any claim against the New York Hospital when she had duly filed her notice and claim against the Samaritan Hospital.
   Per Curiam.

The finding of the Workmen’s Compensation Board that the claimant became disabled on February 10, 1942, as a result of pulmonary tuberculosis, an occupational disease which was due to the nature of her employment and was contracted by her within twelve months previous to the date of her disablement is supported by the evidence. Such finding, when taken in connection with the finding that- she completed her training as an affiliate student nurse at the New York Hospital on May 1,1940, brings her claim against the appellant, New York Hospital, within the statutory limitation of time barring recovery of compensation benefits “ unless the disease is * ⅜ * contracted * ⅞ within the twelve months previous to the date of disablement ”. It is the contraction of the occupational disease rather than exposure that commences the running of the statutory time limit. After giving maximum effect to such limitation more than twelve months elapsed after claimant left the New York Hospital before it may be said she had contracted the disease. An award of compensation benefits for disability due to occupational disease under such circumstances is barred by the statute (Workmen’s Compensation Law, § 40; Matter of Crowley v. Yonkers Herald Pub. Co., 250 App. Div. 670, 275 N. Y. 571).

The order of the Appellate Division and the award of the Workmen’s Compensation Board should be modified in accordance with the opinion herein, and, as so modified, affirmed, with costs in this court and in the Appellate Division to appellant New York Hospital, and the matter remitted to the Workmen’s Compensation Board for further proceedings not inconsistent with the opinion herein.

LoughraN, Ch. J., Lewis, DesmoNd, Thacher, Dye and h uld, JJ., concur; CoNWAy, J., taking no part.

Ordered accordingly.


author: DesmoNd, J. Ftjld, J. Lewis, J.

text:
    Packer Collegiate Institute, Appellant, v. The University of the State of New York al., Respondents.
    Argued June 4, 1948;
    decided July 16, 1948.

      H. Gardner Ingraham and Henry A. Ingraham for appellant.
    I. The statute and regulations are unconstitutional in that they deprive school owners, parents, teachers, children and others of liberty, and citizens of privileges and immunities, secured by the Fourteenth Amendment and by the principles of the First Amednment of the Federal Constitution, and of rights and liberty secured by sections 1 and 6 of article I of the New York Constitution; and in that, thereby and otherwise, they threaten to deprive plaintiff and others of property in violation of the due process clauses .of the Fourteenth Amendment and said section 6. (Board of Education v. Barnette, 319 U. S. 624; People v. Stanley, 81 Col. 276; Columbia Trust Co. v. Lincoln Institute, 138 Ky. 804; Balison v. Post, 79 Ill. 567; Wright v. State, 21 Okla. Cr. 430; People v. Bealmato', 294 N. Y. 45; Tauza v. Susquehanna Coal Co., 220 N. Y. 259.) II. The statute and regulations impose restraints upon the free exercise of constitutional rights including fundamental rights of individual “liberty”. (Thomas v. Collins, 323 U. „S. 516; Lovell v. Griffin, 303 IJ. S. v. State, 308 U. S. 147; Grosjean v. American Press Co., 297 U. S. 233; Lar gent v. Texas, 318 IT. S. 418; Prince v. Massachusetts, 321 U. S. 158; Thornhill v. Alabama, 310 U. S. 88; Valentine v. Chrestensen, 316 U. S. 52; Board of Education v. Barnette, 319 U. S. 624; People v. Kuc, 272 N. Y. 72; People v. Barber, 289 N. Y. 378.) III. The statute and regulations discriminate against persons, firms and corporations other than established religious groups and thereby deny plaintiff equal protection of the laws in violation of the Fourteenth Amendment of the Federal Constitution and section 11 of article I of the New York Constitution. (Kore-matsu v. United States, 323 U. S. 214; Oyama v. California, 332 U. S. 633; Tick Wo v. Hopkins, 118 IJ. S. 356; Skinner v. Oklahoma, 316 U. S. mb', Smith v. Caho.on, 283 U. S. 553.) IV. The statute delegates legislative power in violation of section 1 of article III of the New York Constitution, and thereby threatens to deprive plaintiff of its property in violation of the due process clauses of the Fourteenth Amendment of the Federal Constitution and section 6 of article I of the New York Constitution. (Matter of Seignious v. Bice, 273 N. Y. 44; Darweger v. Staats, 267 N. Y. 290.) V. The statute contains no provisions for notice, hearing, findings, argument or review, and thereby threatens to deprive plaintiff and others of procedural due process of law in violation of the Fourteenth Amendment of the Federal Constitution and section 6 of article I of the State Constitution. (Morgan v. United States, 298 U. S. 468, 304 IT. S. 1; United States v. Morgan, 307 IT. S. 183, 313 IT. S. 409; Matter of Elite Dairy Products, Inc., v. Ten Eyck, 271 N. Y. 488; Matter of Niagara Frontier Milk Prod. Agency v. Du Mond, 297 N. Y. 75; Cantwell v. Connecticut, 310 IT. S. 296.)

      Nathaniel L. Goldstein, Attorney-General (John B. Davison, Wendell P. Brown and Ronald E. Coleman of counsel), for respondents.
    I. The enactment of the statute constitutes a determination by the Legislature that a substantial evil existed in the lack of any direct responsible control over nonseetarian private nursery, kindergarten and elementary schools which threatened the health, safety, morals and general welfare of young children of the State. The manifest purpose of the statute and the regulations promulgated thereunder is protection of children from such ever present and immediate dangers. The statute and the regulations are appropriate means to these ends. (McCulloch v. Maryland, 4 Wheat. 316, '421; People v. Schweinler Press, 214 N. Y. 395; Institute of Metropolis, Inc., v. University of State, 249 App. Div. 33; Purity Extract Co. v. Lynch, 226 U. S. v. Arlen Service Stations, 284 N. Y. 340; People v. American Socialist Soc., 202 App. Div. 640; Matter of Viemeister, 179 N. Y. 235; Bolden v. Hardy, 169 U. S. 366; Erie R. R. Co. v. New York, 233 U. S. 671; Munn v. Illinois, 94 U. S. 113; United States v. Carolene Products Co., 304 U. S. 144.) II. The classification made by the statute by excepting from its application schools maintained by established religious groups is not an arbitrary one. (People v.- American Socialist Soc., 202 App. Div. 640; Tignar v. Texas, 310 U. S. 141; People ex rel. Bryant v. Zimmerman, 241 N. Y. 405; Matter of Williams v. Walsh, 289 N. Y. 1; Radice v. New York, 264 U. S. 292; Keokee Coke Co. v. Taylor, 234 IT. S. 224.) III. Practice, authority the Constitution itself have long sanctioned such a delegation and exercise of powers as here assailed. (Bulloch v. Cooley, 225 N. Y. 566; Douglas v. Nobel, 261 U. S. 165; Matter of Davis v. Sexton, 211 App. Div. 233; Matter of Dr. Bloom, Dentist, Inc., v. Cruise, 259 N. Y. 358; Institute of Metropolis, Inc., v. University of State of N. 7., 159 Mise. 529, 249 App. Div. 33, 274 N. Y. 504; Matter of Marburg v. Cole, 286 N. Y. 202.) IV. The statute does not violate the procedural due process requirement of the Fourteenth Amendment of the Federal Constitution or section 6 of article I of the State Constitution. (Matter of Elite Dairy Products v. Ten Eyck, 271 N. Y. 488; Highland Farms Dairy v. Agnew, 300 U. S. 608.) .
   DesmoNd, J.

Plaintiff has for many years conducted at Brooklyn, N. Y., a private nonsectarian school for girls, consisting of these departments : nursery or preschool, kindergarten, elementary or primary, high school or secondary, and two-year junior college. It sues herein for a declaration of unconstitutionality of a statute, which when this suit was brought, and as last amended by chapter 214 of the Laws of 1945, appeared in the State Education Law as paragraph 5 of subdivision B of section 625 of the Education Law, section 625 being headed Amount and character of required attendance ”, and subdivision B of section 625, in which paragraph 5 is found, carrying the subheading ‘ ‘ Attendance elsewhere than at a public school ”, the whole article 23°being entitled Compulsory EducatioN ”. Paragraph 5 read, when this litigation began, as follows : “ 5. No person or persons, firm or corporation, other than the public school authorities or an established religious group, shall establish or maintain a nursery school and/or kindergarten and/or elementary school giving instruction in the subjects included in section six hundred and twenty, subdivision c, paragraph one-a, of this article, unless the school is registered under regulations prescribed by the board of regents. Upon complying with the said regulations and after payment of' a fee of twenty-five dollars a certificate of registration shall be issued by the department which shall be valid for a period of two years from the date of issuance unless suspended or revoked within said period pursuant to said regulations. Such registration may be renewed biennially thereafter upon the payment of a renewal registration fee of twenty-five dollars.”

The quoted statute, pursuant to a 1947 revision of the Education Law (L. 1947, ch. 820), has now become paragraph e of subdivision 2'of section 3210 of the Education Law, but it is identical with the above except for immaterial changes of wording. A violation thereof is punishable criminally, by fine or imprisonment (former § 641, now Education Law, § 3228).

It is stipulated herein that plaintiff, by reason of its character and standing, would be entitled to a license if it should apply therefor. However, it says the statute is invalid and chooses to stand on that position and refuses to make application.

The quoted statute is, we think, patently unconstitutional as being an attempted delegation of legislative power, in violation of section 1 of article III of the New York State Constitution, which reads: The legislative power of this State shall be vested in the Senate and Assembly.” The statute before us is nothing less than an attempt to empower an administrative officer, the State Commissioner of Education, to register and license, or refuse to register and license, private schools, under regulations to be adopted by him, with no standards or limitations of any sort. The Legislature has not only failed to set out standards or tests by which the qualifications of the schools might be measured, but has not specified, even in most general terms, what the subject matter of the regulations is to be. It is impossible, from any examination of this subdivision, or of the section or the article in which it appears, or of the whole Education Law, to know what aspects or activities of the schools were to be governed by the regulations, much less what the regulations were to accomplish, or what were to be their limits. Only the wildest guessing could give us any idea of what the Legislature had in mind. Surely this does not meet the test of Matter of Small v. Moss (279 N. Y. 288, 299): ‘ The Legislature must set bounds to the field, and must formulate the standards which shall govern the exercise of discretion within the field. Without the second rule as a corollary to the first rule there would be no effective restraint upon unfair discrimination or other arbitrary action by the administrative officer.” Thus there must be a clearly delimited field of action and, also, standards for action therein. Here we have neither. This is not really a question of what powers of control over private schools may validly be delegated by the Legislature. It is here impossible to discover authority was- intended to be turned over. The commissioner is left without check or guidance ” to do what he will with these schools; and the statute’s validity must be judged not by what has been done under it but “ by what is possible under it ” (see People v. Klinck Packing Co., 214 N. Y. 121, 138, 139). The Legislature may, of course, leave “ ‘ execution and details ’ ” to the administrators, but the Legislature must at least furnish those administrators with “ ‘ rules and principles ’ ” for guidance (see Darweger v. Staats, 267 N. Y. 290, 306). The Federal rule is the same. From Field v. (143 U. S. 649) and United States v. Grimaud (220 U. S. 506) down to Panama Refining Co. v. Ryan (293 U. S. 388) and Schechter Corp. v. United States (295 U. S. 495) the Supreme Court has repeatedly denied the power of Congress to delegate its lawmaking function, while permitting it to delegate the power to determine the existence of the facts which make the law applicable or inapplicable, and to fill in the details of regulation. The application of that principle to licensing statutes is plainly shown by the Grimaud case {supra), where the Supreme Court found a licensing statute not unconstitutional for excessive delegation, but only because Congress had marked out a field for the Secretary of Agriculture. The statute was so drawn, said the court, that the Secretary of Agriculture “ could not make rules and regulations' for any and every purpose. * * * to those here involved, they all relate to matters clearly indicated and authorized by Congress. The subjects as to which the Secretary can regulate are defined.” (P. 522.)

Nor is this a case, where the field and limits of action, while not immediately expressed, can be found elsewhere in the law. Article 23 of the Education Law (now art. 65) in which this law is found, deals from first to last, as its title shows, with “ Com-PULSOB.Y ”. Section 625 (now § 3210), of which this particular subdivision is in part, has to do, as its heading shows, with “ Amount and character of required attendance.” But it cannot be that the Legislature was instructing the commissioner to make regulations concerning attendance only, since the character and amount of compulsory attendance in both private and public schools was already minutely regulated in other parts of section 625 (now § 3210) and elsewhere in article 23 (now art. 65). Try as we will to avoid invalidating this enactment, we cannot find in it, or aronnd it, express or implied, any standards at all. To be frank, we cannot understand what it means or what it was intended to accomplish.

Holding as we do that the statute is unconstitutional, it is unnecessary to deal with the regulations actually promulgated by the commissioner thereunder. However, an examination of those regulations is illuminating since they show, we think, that the commissioner, left without legislative guidance, proceeded to legislate, broadly and in many different areas. Summarized, those regulations provide that each such school shall apply for registration under forms prescribed by the commissioner, who shall determine the school’s eligibility for registration on the facts presented; that registration shall be given only for a number of children to be specified by the commissioner, but not fewer than six children; that the program," curriculum and financial resources of the school must meet standards to be approved by the commissioner; that the qualifications of the teachers shall be up to those of the public school; that the number of children per teacher shall not be too large for proper education; that there shall be adequate equipment and space, adequate provisions for health and sanitation and fire escapes, adequate opportunities for “ parent education ” and adequate record-keeping; that the schools shall be in session approximately the same number of days as the public schools, and that no school shall be registered if it'puts out misleading advertising. A comparison of those regulations with the bare and meager language of the statute forces the conclusion that, however good or bad the commissioner’s rules may be, they were not controlled, suggested or guided by anything in the statute. It is to be doubted that the Legislature had in mind the requiring of financial statements from nursery schools, or that it expected that the rules would mandate “ parent education ” in kindergartens. At any rate, the statute contains no declaration of purpose or policy, general or particular, and the commissioner was left to make such laws as he thought wise — which he proceeded to do.

This is no small or technical matter we deal with here. Private schools have a constitutional right to exist, and parents have a constitutional right to send their children to such schools (Pierce v. Society of Sisters, 268 U. S. 510). .The Legislature, under the police power, has a limited right to regulate such schools in the public interest (Pierce v. Society of Sisters, supra; Meyer v. Nebraska, 262 U. S. 390). Such being .the fundamental law of the subject, it would be intolerable for the Legislature to hand over to any official or group of officials, an unlimited, unrestrained, undefined power to make such regulations as he or they should desire, and to grant or refuse licenses to such schools, depending on their compliance with such regulations.

It is unnecessary to discuss other specifications of alleged unconstitutionality urged by plaintiff-appellant.

The judgment should be reversed, without costs, and the case remitted to the Appellate Division with instructions to enter a judgment declaring the statute void as contravening section 1 of article III of the New York State Constitution.

Ftjld, J.

(concurring). I concur in the conclusion reached by Judge Desmond for reversal. -With him, I agree that the statute (Education Law, § 3210, subd. 2, par. e) invalidly delegates legislative power to the Commissioner of Education in violation of section 1 of article III of the Constitution of the State of New York. However, I go further: I believe that the provision also offends against both Federal and State Constitutions in that it denies to plaintiff and to other nonsectarian schools the equal protection of the laws (U. S. Const., 14th Amend!; N. Y. Const., art. I, § 11).

Lewis, J.

(dissenting). Although counsel for the appellant has argued before us that paragraph 5 of subdivision B of section 625 of the Education Law, violates in several respects both the Federal and the State Constitutions, the decision by a majority of the court rests upon a single assignment of invalidity — that the challenged statute is “an attempted delegation of legislative power, in violation of section 1 of article III of the New York State Constitution ”. I cannot assent to that conclusion. .

It is my view that this is one of those instances — of which the Education Law furnishes many examples — when legislation must be .adapted to complex conditions prevailing in a technical field and involving details with which the Legislature lias found it difficult to deal directly. (See Education Law, §§ 132, 207, 210, 211, 215, 216, 218, 219, 254, 301, 305, 3004, 5001, 5002, 6608-6609, 6705, 6803, 6805, 7005, 7205, 7303, 7404, 7503.) On that subject I may well cite the comment by Mr. Justice Poster writing for the Appellate Division in this case — “ If plaintiff’s argument is sound [on the asserted unconstitutional delegation of legislative power] the whole educational system of the State is subject to attack, for inherent in the system are innumerable instances of delegated power to make rules and regulations.” (273 App. Div. 203, 209.)

Of the many rulings by this court which give direction to our inquiry, I choose two: In People v. Charles Schweinler Press (214 N. Y. 395) the court (per Hiscock, J.) stated (p. 406): “ In considering legislation adopted for such a purpose we must start out with the presumption that it is constitutional and valid. (People ex rel. Kemmler v. Durston, 119 N. Y. 569, 577.) If the statute upon its face appears to be reasonable and just and appropriate, and we can fairly believe that its natural consequences will be in the direction of betterment of public health and welfare, and, therefore, that it is one which the state for its protection and advantage may enact and enforce, it will be the duty of the courts to pronounce it constitutional even though they should doubt its wisdom. (People v. Klinck Packing Co., 214 N. Y. 121; Rolden v. Hardy, 169 U. S. 366, 395.) Or, to state the rule in converse form, before we can pronounce such a statute as that now before us unconstitutional we must be able to see either that there is no real, substantial evil of public interest to be guarded against or that there is no reasonable relation between the evil and the purported cure or prevention offered by the statute.”

On an occasion twenty-five years later, when the question of statutory standards engaged the attention of the court, it was said (per FiNch, J.) writing in Matter of Marburg v. Cole (286 N. Y. 202, 211-212): “ The law is wel] settled that it is not always necessary that license legislation prescribe a specific rule of action. Where it is difficult or impractical for the Legislature to lay down a definite, comprehensive rule, a reasonable amount of discretion may be delegated to the administrative officials. (People ex rel. Lieberman v. Van De Carr, 199 U. S. 552, affg. 175 N. Y. 440.) Where the administrative agency has adopted a standard as an interpretation of the broad powers granted to it by the statute, we may declare such a standard invalid only in the event that it is so lacking in reason for its promulgation that it is essentially arbitrary.”

In the case at hand the prevailing opinion by Judge DesmoNd criticises the challenged statute because it “ contains no declaration of purpose or policy, general or particular,' and the commissioner was left to make such laws as he thought wise ”. Although there are instances where the Legislature has chosen to preface statutes with a formal declaration of policy I know of no legal requirement for such a formal declaration. Indeed there is distinguished authority for the statement recently made that Often the purpose or policy that controls is not directly displayed in the particular enactment. Statutes cannot be read intelligently if the eye is closed to considerations evidenced in affiliated statutes, or in the known temper of legislative opinion.”

Nor do I think there is a valid basis for the condemnation, chiefly stressed in the prevailing opinion, that — ‘‘ The statute before us is nothing less than an attempt to empower an administrative officer, the State Commissioner of Education, to register and license, or refuse to register and license, private schools, under regulations to be adopted by him, with no standards or limitations of any sort.”

I am not unmindful of the rule of Matter of Small v. Moss (279 N. Y. 288, 299) cited in the prevailing opinion, — which rule requires that there be standards which govern the discretion to be exercised by the Legislature’s delegate. We have seen, however, that such a rule is not rigid. (Matter of Marburg v. Cole, supra, pp. 211-212.) Upon that subject this court has aptly commented:

Authority to make administrative rules is not a delegation of legislative power, and such rules do not become legislation because violations thereof are punished as public offenses.

“ In this day when the demands upon the State Legislatures for necessary and important laws are increasing every year we must not be rigid in our construction of legislative power. More and more must the laws become general in form, leaving to commissions, boards or other administrative bodies the establishment of rules and regulations and the determination of the facts to which the general law will apply. ’ ’ (Darweger v. Staats, 267 N. Y. 290, 306.)

The delegation by the Legislature to an administrative agency of broad constitutional powers involving the exercise of reasonable discretion may be declared invalid only in the event it is so lacking in reason for its promulgation that it is essentially arbitrary. (Matter of Marburg v. Cole, supra, p. 212.) Accordingly, I believe the rule of Matter of Small v. Moss (supra) is satisfied if the statute involved — considered in its setting and with all reasonable implications therefrom — gives evidence that the Legislature was aware of the type of problem with which it had to deal. Where, as in this instance, problems peculiar to the conduct of schools of a certain type were to be met, it was obviously both difficult and impractical for the Legislature to formulate definite, comprehensive regulations to govern the registration and licensing of nursery schools, kindergartens and elementary schools. It thus became appropriate to delegate a reasonable amount of discretion to the Commissioner of Education to formulate such regulations.

When searching for standards in statutes delegating legislative power we may adopt a liberal view. (Matter of Marburg v. Cole, supra; Darweger v. Staats, supra.) In doing so in this case we are certainly permitted to assume awareness by the Legislature that the statute in question is a part of the Education Law. By the terms of the act the Commissioner of Education is chosen to administer the statute. It follows that the regulations to be promulgated by the commissioner, bj necessary-inference, bear some reasonable relation to education. The schools to be registered ” and regulated under the statute are expressly designated as private nursery, kindergarten and elementary schools, from which it follows that the regulations authorized must bear some reasonable relation to education furnished at schools of that character. As the statute is placed in article 65 of the Education Law ■— which article bears the caption “ Compulsory EducatioN aub School CeNsus — and is a subdivision of section 3210 of the same article, which section is captioned “ Amount and character of required attendance ” ■— the regulations should bear some reasonable relation to the subjects dealt with under those sections. It is also to he noted, as to elementary schools at least, that section 3204 of article .65 provides minor required to attend upon instruction by the provisions of part one of this article [relating to compulsory education] may attend at a public school or elseiohere ” (subd. 1) and that “ instruction given to a minor elsewhere than at a public school shall he at least substantially equivalent to the instruction given to minors of like age and attainments at the public schools of the city or district where the minor resides.” (Subd. 2.) (Emphasis supplied.) The regulations to he promulgated by the commissioner should bear a reasonable relation to that statutory mandate.

The standards, in my opinion, are adequate. They are as adequate as those found sufficient by the United States Supreme Court in Douglas v. Noble (261 U. S. 165). The statute there under attack provided that only licensed persons should practice dentistry. Authority to license was vested in a board of examiners consisting of five practicing dentists. Every person of good moral character, with a degree from a recognized dental school, was declared eligible and — if he or she- passed the examination — was entitled to a license. It is significant for our present inquiry that the statute there involved did not set out — except as already noted — standards or guides as to the character and scope of the examination required to be passed before the license could be issued. Nevertheless, the Supreme Court held (p. 169): “ The statute provides that the examination shall be before a board of practicing dentists; that the applicant must be a graduate of a reputable dental school; and that he must be of good moral character. Thus, the general standard of fitness and the character and scope of the examination are clearly indicated.” And at pages 169-170, the court held further: To determine the subjects of which one must have knowledge in order to be fit to practice dentistry; the extent of knowledge in each subject; the degree of skill requisite; and the procedure to be followed in conducting the examination; these are matters appropriately committed to an administrative board.” (Emphasis supplied.)

In the present case, as in many other instances found in the Education Law (cited supra) the Legislature, by its enactment, legislated as far as was reasonably practical upon a subject with wbicb it was called upon to deal in tbe troublesome field of education. Prom tbe necessities of tbe case there was left with the Commissioner of Education — tbe chief administrative officer of tbe Board of Regents (N. Y. Const, art. V, § duty of formulating tbe prescribed by tbe statute as means to bring about tbe result wbicb tbe Legislature intended to accomplish. We may assume, until tbe contrary is proven, that tbe Commissioner of Education — a constitutional officer — has acted in obedience to tbe statutory duty thus imposed. As I view tbe record no rule of constitutional law was thereby violated.

Accordingly, I dissent and vote to affirm tbe judgment entered upon tbe order of the Appellate Division.

Loughran, Ch. J., and Dye, J., concur with Desmond, J.; Fuld, J., concurs in separate opinion; Lewis, J., dissents in opinion in wbicb Thacher, J., concurs; Conway, J., taking no part.

Judgment reversed, etc.

       “Some Reflections on the Reading of Statutes” (Sixth Annual Cardozo Lecture) by Mr. Justice Feijx Frankfurter.


author: Fuld, J.

text:
    Irwin M. Coane et al., Individually and as Stockholders of American Distilling Company, Suing on Their Own Behalf and on Behalf of Stockholders Similarly Situated, and on Behalf of Said Company, Appellants, v. American Distilling Company and Russell E. Brown et al., Respondents, et al., Defendants. Irwin M. Coane et al., Individually and as Stockholders of American Distilling Company, Suing on Their Own Behalf and on Behalf of Similarly Situated, and on Behalf of Said Company, Appellants, v. American Distilling Company et al., Defendants, and Peter E. Siskind et al., Respondents.
    Argued June 8, 1948;
    decided July 16, 1948.

      Joseph Nemerov and Aaron Schwarts for appellants in first above-entitled action.
    I. The 1944 amendment to section 61 of the General Corporation Law has no retroactive application to actions instituted prior to its enactment and therefore the judgment of the lower court dismissing the plaintiffs’ derivative action instituted two years prior to the enactment of the amendment was erroneous. (Shielcrawt v. Moffett, 294 N. Y. 180, 294 N. Y. 840; Hastings v. Byllesby & Go. [Granberry], 293 N. Y. 413; Matter of Berkovitz v. Arbib & Honlberg, 230 N. Y. 261; People v, Cohen, 245 N. Y. 419; Jacobus v. Colgate, 217 N. Y. 235; Lewittes & Sons, Inc., v. Perlow, 254 App. Div. 94; Matter of Miller, 110 N. Y. 216; Matter of Beckford v. Ghesire, 128 Mise. 10; People ex rel. Koonts v. Chesire, 219 App. Div. 841; Taylor v. Barrand, 185 Mise. 432; Purdy v. Humphrey, 60 N. Y. S. 2d 535; Mahler v. Trico Products Corp., 271 App. Div. 179, 296 N. Y. 902.) II. Betroactive application of the amendment to section 61 to pending litigations raises grave constitutional questions under the Constitutions of the State of New York and the United States. Therefore under well-settled rules the amendment should not he given such a construction. (Matthews v. Matthews, 240 N. Y. 28; Hirson v. United Stores Corp., 263 App. Div. 646; Weiler v. Dry Dock Sav. Inst., 258 App. Div. 581, 284 N. Y. 630; Pollits v. Gould, 202 N. Y. 11; Sliosberg v. New York Life Ins. Co., 217 App. Div. 67, 244 N. Y. 482; Ettor v. Tacoma, 228 U. S. 148; Coombes v. Gets, 285 U. S. 434.)

      William G. Mulligan and Lewis B. Greenbaum for respondents in first above-entitled action.
    I. No issue of retroactivity is involved. (Cox v. Hart, 260 U. S. 427; Smallwood v. Gallardo, 275 U. S. 56; Hiñe v. Belden, 27 Conn. 384; Shielcrawt v. Moffett, 294 N. Y. 180, 294'N. Y. 840; Dye v. School District No. 32, 355 Mo. 231.) II. The right of action asserted in a stockholder’s derivative suit belongs to the corporation and not to any stockholder. Therefore no stockholder who acquired his stock after the right of action arose can complain when his individual privilege to represent the corporation is terminated. (Foss v. Harbottle, 2 Hare 461 [1843]; Potter v. Walker, 252 App. Div. 244, 276 N. Y. 15; Hawes v. Oakland, 104 U. S. 450; Alexander v. Donohoe, 143 N. Y. 203; Holmes v. Camp, 180 App. Div. 409; Perrott v. U. S. Banking Corp., 53 F. Supp. 953; Continental Securities Co. v. Belmont, 206 N. Y. 7.) III. The privilege of instigating a derivative suit is not a constitutionally protected right belonging to each shareholder; hence no constitutional question can be involved. (Matthews v. Matthews, 240 N. Y. 28; Myer v. Myer, 271 App. Div. 465, 296 N. Y. 979; Swan v. Mutual Reserve Fund Life Assn., 155 N. Y. 9; Pollits v. Gould, 202 N. Y. 11; United States Radiator Co. v. State, 208 N. Y. 144; Kavanaugh v. Commonwealth Trust Co., 181 N. Y. 121; Smith v. Hurd, 53 Mass. 371; Gilbert v. Ackerman, 159 N. Y. 118; Gibbes v. Zimmerman, 290 U. S. 326.) IV. Whether it he deemed prospective or retrospective, substantive or procedural, the 1944 amendment to section 61 of the General Corporation Law applies to actions pending when it was passed.. (Gallup v. Caldwell, 120 F. 2d 90; McQuillen v. National Cash Register Co., 112 F. 2d 877; Eisler v. Eastern States Corp., 182 Md. 329; Matthews v. Headley Chocolate Co., 130 Md. 523; Sachheim v. Pigueron, 215 N. Y. 62; Peace v. Wilson, 186 N. Y. 403; Lazarus v. Metropolitan Elevated Ry. Co., 145 N. Y. 581; Compton & Co. v. Williams, 248 App. Div. 545; People ex rel. Collins v. Spicer, 99 N. Y. 225.)

      Aaron Schioarts and Joseph Nemerov for appellants in second above-entitled action.
    I. The second and third causes of action are in equity to impress a constructive trust upon shares of stock in the hands of defendants and to recover the wrongful profits made by the defendants in excess of the actual loss sustained by the corporation. The statute of limitations is ten years. {Loft, Inc., v. Guth, 23 Del. Ch. 138; Guth v. Loft, Inc., 23 Del. Ch. 255; Blale v. Buffalo Creel R. R. Co., 56 N. Y. 485; Blaleslee v. Sottile, 118 Mise. 513; Meinhard v. Salmon, 249 N. Y. 458; Siallot Importing Corp. v. Berlin, 295 N. Y. 482; Equity Corp. v. Groves, 294 N. Y. 8; McLear v. McLear. 291 N. Y. 809; Goldstein v. Tri-Continental Corp., 282 N. Y. 21; Potter v. Waller, 276 N. Y. 15; Doherty & Co. v. Rice, 186 F. 204,184 F. 878; Northern C. R. R. v. Walworth, 193 Pa. 207;' Nason v. Barrett, 140 Minn. 366; Hearn 45th St. Corp. v. Jano, 283 N. Y. 139.) II. Defendants’ motion for summary judgment being predicated upon the statute of limitations must in any event be denied even if the three or six-year statutes of limitation are applicable.

      Max E. Lynne, Benjamin Liebov and Edwin M. Slote for Peter E. Siskind, respondent, in second above-entitled action.
    Special Term and the Appellate Division properly applied the six and three-year statutes of limitation to bar the assailed second and third counts of the complaint. {Potter v. Waller, 276 N. Y. 15; Corash v. Texas Co., 264 App. Div. 292; Kalmanash v. Smith, 291 N. Y. 142; Dunlop’s Sons, Inc., v. Spurr, 285 N. Y. 333; Zwerdling v. Bent, 264 App. Div. 195; Equity Corp. v. Groves, 294 N. Y. 8; Cwerdinsli v. Bent, 256 App. Div. 612, 281N. Y. 782; Keys v. Leopold, 241 N. Y. 189; Pollack v. Warner Bros. Pictures, Inc., 266 App. Div. 118; Sachs v. duett Peabody & Go., 265 App. Div. 497.)'

      Leonard P. Moore and Edward B. Neaher for American Spirits, Inc., respondent, in second above-entitled action.
    I. The allegations of the third canse of action disclose no fiduciary relationship between Spirits and Distilling, and hence are insufficient to support plaintiffs’ demand for an accounting decree against Spirits. (Kalmanash v. Smith, 291 N. Y. 142; Loft, Inc., v. Guth, 23 Del. Ch. 138, 23 Del. Ch. 255; Business Advisory Bureau, Inc., v. Stallforth, 262 App. Div. 162, 289 N. Y. 792.) II. The vague and conclusory allegations in the third cause of action contain no facts constituting actionable wrong on the part of Spirits, and hence the judgment of dismissal is correct and should not be disturbed. (Kalmanash v. Smith, 291 N. Y. 142.)
   Fuld, J.

Plaintiffs in 1942 brought two separate derivative stockholders’ suits on behalf of American Distilling Company, charging defendants with numerous acts of misuse, diversion and misappropriation of corporate assets and opportunities. For convenience, we differentiate the two suits by using the name of an individual defendant in each, and referring to one as the “ Brown ” action and to the other as the “ Sis-kind ” suit. In each action, defendants, by appropriate motion, sought dismissal of the complaint: in the Brown litigation, upon the ground that, since the transactions complained of occurred before plaintiffs became stockholders in the subject corporation, section 61 of the General Corporation Law, as amended in 1944, deprived plaintiffs of standing to continue the suit; in the Siskind action, upon that ground and for the further reason that the three and six-year statutes of limitations, applicable to actions at law, constituted a bar.

At Special Term, the moving defendants prevailed on each score, and the resulting order of dismissal entered in each case was affirmed by the Appellate Division, two justices dissenting. Since the appeals pose a question common to both — the construction of section 61 — we treat them together and in one opinion.

More than a year after plaintiffs began snit, section 61 of tbe General Corporation Law was amended to add the requirement that In any action brought by a shareholder in the right of a * corporation it must be made to appear that the plaintiff was a stockholder at the time of the transaction of which he complains or that his stock thereafter devolved upon him by operation of law ” (L. 1944, eh. 667). We recently sustained the constitutionality of that amendment and, in so doing, held that the statute prevented a shareholder, who did not own his stock at the time the wrongs against the corporation were committed, from commencing a derivative action after the effective date of the statute. (See Myer v. Myer, 296 N. Y. 979, affg. 271 App. Div. 465.) We did not then decide whether or no the requirement imposed by the 1944 amendment had a similar effect on actions already instituted. Defendants would have us now declare that since the statute is procedural ”, it requires dismissal of an action pending at the time of its enactment — that, in other words, it applies not only to suits begun after the law became effective, but also to those in litigation and awaiting trial at the time of its enactment.

That we are not prepared to do, even assuming that section 61 regulates only matters of procedure. Although such a statute is “ applicable to proceedings thereafter instituted for the redress of wrongs already done ’ there are ‘ ‘ different considerations ’ ’ involved and a ‘ ‘ different problem arises when proceedings are already pending.” (See Matter of Berkovitz v. Arbib & Houlberg, Inc., 230 N. Y. 261, 270-272.) Eefusing to indulge in mechanical presumptions as to legislative intent, this court declared in the Berkovitz case (p. 273) that “ We are not to presume a willingness that rights already accrued through actions lawfully initiated are to be divested or impaired ” by such enactments. Applying these principles, we noted not long ago, in considering a companion statute — section 61-b of the General Corporation Law — that “ ‘ It takes a clear expression of legislative purpose to justify ’ ” giving a law retrospective effect and holding it applicable to suits previously begun. (See Shielcrawt v. Moffett, 294 N. Y. 180, 188-189.) We explicitly ruled and declared that, in the absence of unequivocal expression ” by the Legislature, the provision there involved was not to be accorded retrospective effect, lest it prevent plaintiffs “ from trying the action after they had spent time and money in preparing it for trial ” (294 N. Y., at p. 190).

In our judgment, decision here is dictated by our determination in the SMelcrawt case (supra). No more in section 61 than in section 61-b is there unequivocal expression ” of a design by the Legislature to burden suits in progress with requirements or conditions thereby imposed. On the contrary, the command of section 61, that it is to “ take effect immediately ” and apply in * any action is prospective rather than retrospective in tone. Significantly omitted is a declaration — found in a related provision (L. 1941, ch. 350, adding § 61-a to General Corporation Law) —that said section “ shall apply to all such actions, suits or proceedings as may be pending ” (L. 1941, ch. 350, § 2). Here, just as in the Shielcrawt case, we find no legislative command that we must harshly burden — indeed, sweep away — long and costly litigation that was permissible and proper when begun.

Dismissal of the complaints may not, then, be predicated on section 61, and, accordingly, we turn to the second question posed — that relating to the statute of limitations — affecting only the appeal in which defendant Siskind and defendant American Spirits, Inc., are respondents.

In the Siskind suit, we are concerned with the second and third causes of action. The second charges that in 1936 certain individual defendants, directors and officers of American Distilling, misappropriated business opportunities of that company. Alleging that the misappropriation was accomplished by defendants through the formation of another corporation known as Pekin Warehouse Company, the stock of which was issued to those defendants or their dummies, plaintiffs seek to impress a trust upon that stock in favor of American Distilling and to obtain an accounting for profits realized by Pekin as well as by the defendants named. The third cause of action is also founded upon diversion of the corporation’s business opportunity, and the relief sought by plaintiffs is likewise to have a trust impressed upon the stock of another corporation, American Spirits, Inc., which, it is alleged, was organized by several individual defendants in order that they might “ utilize the funds, credit, facilities and assets of American Distilling * * for their own private purposes ”.

The motion by defendants Siskind and American Distilling for summary judgment dismissing these two canses of action on the ground — in addition to plaintiffs ’ disqualification under section 61, previously considered — that they were outlawed by the three and six-year statutes of limitations prescribed respectively by subdivision 7 of section 49, and former subdivision 3 of section 48 of the Civil Practice Act, was granted by the court at Special Term, and the resulting order was affirmed by the Appellate Division. In our view, that determination must be reversed.

As to the individual defendants named, it is evident that the plaintiffs seek to reclaim property from them. The stock upon which a constructive trust is sought to be impressed is the stock of corporations subsequently organized for the purpose of taking over the original res, consisting of specified corporate opportunities, for, as the complaint asserts, the stock was issued to and vested in the individual defendants in return for that res. Consequently, the stock, held by the individual defendants, constitutes the substituted res and, being of requisite character, may be impressed with a trust. (See 3 Scott on Trusts [1939], p. 2315.) While legal title is in the individual defendants, the res actually belongs, by operation of law, to American Distilling (see Beatty v. Guggenheim Exploration Co., 225 N. Y. 380, 386; see, also, Restatement, Restitution, § 160), and, under the circumstances disclosed by the pleadings, “ equity’s intervention is essential.” (See Sialkot Importing Corp. v. Berlin, 295 N. Y. 482, 487; see, also, Turner v. American Metal Co., 268 App. Div. 239; Skinnell v. Mahoney, 197 App. Div. 808; see, also, United States v. Dunn, 268 U. S. 121.)

The courts below indicated that, in their opinion, the two causes of action under consideration do not show that defendants profited from the offending transactions in an amount in excess of the loss to the corporation, and, that, in addition, the circumstance that plaintiffs sought an accounting did not determine that the action was equitable in nature. That being so, they concluded that the ten-year equitable statute of limitations did not apply. The necessity for an accounting alone does not, of course, warrant imposing the longer equity period of limitation, since accounting is merely a method of calculating the amount of damage and does not of itself stamp the action as equitable. The true criterion is whether the remedy at law is adequate, whether equity’s aid is demanded. In this case, the intervention of equity is, as stated above, essential for it is sought to strip the individual wrongdoers of specific property and to decree its restitution to its proper and equitable owner. Delinquent fiduciaries may not insist upon being left in possession of property wrongfully obtained on any theory that they could be compelled to pay damages by an action at law.

It follows, then, that the ten-year statute of limitations, provided for in section 53 of the Civil Practice Act, is applicable to the second and third causes of action insofar as the individual defendants, including defendant-respondent Siskind, are concerned.

As to defendant-respondent American Spirits, the charge is that business and services were improperly diverted and channeled to it from American Distilling. There is, of course, a difference between the diversion of business and services and the misappropriation of specific property. No distinct and traceable property has replaced this diverted business and diverted personal services, and they do not constitute a specific and identifiable res. To such interests, there is no legal title which may be deemed vested in the wrongdoer, and the value of the diverted services, funds and facilities of American Distilling is recoverable in the form of damages. In such a case, the remedy at law, a judgment for damages, would prove adequate. (See Turner v. American Metal Co., 268 App. Div. 239, 273, supra; see, also, Restatement, Restitution, § 152.) Accordingly, the three and six-year statutes of limitations (Civ. Prac. Act, § 49, subd. 7; Civ. Prac. Act, § 48, former subd. 3), applicable to actions in which the gravamen is waste of corporate assets, apply to the claims asserted against American Spirits.

That does not, however, justify dismissing the causes of action insofar as they are directed against that corporation. Even though the three and six-year statutes apply to the claims against the corporation, the pleadings and papers before us leave doubt as to when the transactions complained of occurred. The suit was begun in May, 1942. While many of the transactions may have occurred more than six years before, some of them were, according to the complaint, committed in 1936 — the year in which the period was reduced from six years to three years (L. 1936, cb. 558; see, also, Corash v. Texas Co., 264 App. Div. 292, 295); and others were assertedly consummated in 1940, well within the law action statute. We share the view of the dissenting Appellate Division justices that such determination should await a fuller record, indicating with greater precision the dates of the transactions concerning which complaint is made.

As to the Siskind action, then, it is our conclusion that the determination of the Appellate Division must be reversed: that in favor of the individual defendant, on the ground that the ten-year statute of limitations is applicable; that in favor of the corporation, American Spirits, Inc., on the ground that it does not clearly appear from the record whether all or any of the transactions are barred by the applicable three and six-year statutes of limitations.

In the Brown case, the judgment of the Appellate Division and the order of Special Term dismissing the complaint should be reversed, with costs in all courts, and the motion for judgment on the pleadings denied. In the Siskind case, the judgments should be reversed, with coste in all courts, and the motion for summary judgment denied.

Loughran, Ch. J., Lewis, Desmoud, Thacher and Dye, JJ.. concur; CoNWAy, J., taking no part.

Judgments reversed, etc.


text:
    In the Matter of the Arbitration Between Motor Haulage Company, Inc., Respondent, and International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Truck Drivers and Chauffeurs Local No. 807, Appellant.
    Argued June 3, 1948;
    decided July 16, 1948.

      I. As construed by the court below and applied in the judgment appealed from, article 84 of the Civil Practice Act violates the due process clause of the Fourteenth Amendment to the United States Constitution and the due process and trial by jury guaranteed by the New York State Constitution. (Finsilver, Still & Moss v. Goldberg, Maas & Go., 253 N. Y. 382; Schaf-ran & Fimhel, Inc., v. Lowenstein & Sons, Inc., 280 N. Y. 164.) II. There was neither submission nor contract to arbitrate. III. The proceeding which resulted in the “ award ” was not instituted in conformity with the provisions of the contract, and was, therefore, ineffectual as an arbitration proceeding. IV. There was no dispute between appellant and respondent within the meaning of the agreement to arbitrate. V. There was in fact no arbitration. VI. There was no breach of agreement by the appellant, and, therefore, no legal basis for an award of an arbitrator or judgment of a court. VII. There was no award. The so-called arbitrator did not in fact arbitrate ” but assumed to act as legislator laying down a general rule of law. VIII. The judgment appealed from is in violation of subdivision 6 of section 876-a of the Civil Practice Act and section 6 of the Norris-LaGuardia Act. (Mondou v. New York, N. H. & H. B. B. B. Go., 223 U. S. 1; Houston v. Moore, 5 Wheat. 1; Hines v. Davidoioits, 312 U. S. 52; Cloverleaf Butter Go. v. Patterson, 315 U. S. 148.) IX. The arbitrator had no power to render two “ awards ” in the same “ arbitration ”, and the second “ award ” was therefore void, and the judgment entered thereon erroneous. (Jones v. Welwood, 71 N. Y. 208; Herbst v. Hagenaers, 137 N. Y. 290.) X. The court below had no power to enter the judgment appealed from, since there was no party before the court. (McCabe v. Goodfellow, 133 N. Y. 89; Schouten v. Alpine, 215 N. Y. 225; Browne v. Hibbets, 290 N. Y. 459; Glauber v. Patof, 294 N. Y. 583; Hanke v. Cigar Makers I. U. of A., 27 Mise. 529; Andrews v. Local Union No. 13, Journeymen P., G. & S., 133 Mise. 899; Saxer v. Democratic Go. Committee of Erie Go., 161 Mise. 35.)

      Herbert for respondent.
    I. The arbitrator’s award was properly ordered enforced by the Appellate Division. (Matter of Wilkins, 169 N. Y. 494; Matter of Burke, 191 N. Y. 437; Matter of Pine Street Bealty Go. v. Coutroulos, 233 App. Div. 404; Matter of Devery [Daniels & Kennedy, IncJ], 266 App. Div. 213, 292 N. Y. 596; Matter of Marchant v. Mead Morrison Mfg. Go., 252 N. Y. 284.) II. Article 84 of the Civil Practice Act does not violate the Constitution of the United States or of the State of New York, and the award is enforcible under section 1458 of the Civil Practice Act. (Finsilver, Still & Moss v. Goldberg, M. & Go., 253 N. Y. 382.) III. There was a contract to arbitrate. (Matter of Kelley, 240 N. Y. 74; Matter of Fabricand v. Norts, 252 N. Y. 524.) IV. The arbitration proceeding which resulted in the award was properly and regularly conducted. (Matter of Oltarsh v. Classic Dresses, Inc., 255 App. Div. 532; Gilbert v. Burnstine, 255 N. Y. 348; Lane v. Endicott Johnson Corp., 75 N. Y. S. 2d 171; Matter of Linne [Stuyvesant Constr. Gorp.'j, 268 App. Div. 982; Matter of Behrens [Feuerring], 296 N. Y. 172; Matter of Kahn [Nat.

      City Bank], 284 N. Y. 515.) V. The arbitrator could properly assess damages. The judgment is not in violation of subdivision 6 of section 876-a of the Civil Practice Act and section 6 of the Norris-LaGuardia Act. (United Brotherhood of Carpenter & Joiners of America v. United States, 330 U. S. 395; Allen Bradley Co. v. Local Union No. 3, IBEW, 325 U. S. 797; United States v. American Federation of Musicians, 318 U. S. 741; Plazmont Pharmacy, Inc., v. Retail Drug Store Employees Union, Local 1199, 57 N. Y. S. 2d 387; Matter of Sperling v. Newtown Laundry Service, Inc., 264 App. Div. 878; Civ. Prac. Act, § 1448, opening par.) VI. The two ” awards were properly made as part of a single arbitration proceeding. (Bodier v. Fay, 7 N. Y. S. 2d 744; Kirhman v. Westchester Newspapers, Inc., 261 App. Div. 181, 287 N. Y. 373; Hagan v. Bricklayer Union No. 28, 143 Mise. 591; Schouten v. Alpine, 215 N. Y. 225; Bobe v. Lloyds, 10 F. 2d 730, 270 IT. S. 663.)
   Per Curiam.

In this State an action or special proceeding may not be maintained nor may judgment be entered against an unincorporated association in its proper name. In a case where the complaint or notice of motion commencing a special proceeding is served upon the president or treasurer of an association, the failure to designate that person in his representative capacity as the defendant or respondent is an irregularity which may be corrected in the absence of prejudice to a substantial right of any party (Civ. Prae. Act, § 105; Yeager v. Co-operative Fire Underwriters Assn., 243 App. Div. 743). We find no other error.

The judgment of the Appellate Division and order of Special Term should be reversed and the matter remitted to Special Term for further proceedings not inconsistent with this opinion, with costs in all courts to abide the event.

LoughraN, Ch. J., Lewis, DesmoNd, Thacher, Dye and JJ., concur; CoNWAY, J., taking no part.

Judgment reversed, etc.


text:
    The People of the State of New York, Respondent, v. Harold Karp, Appellant.
    Submitted June 7, 1948;
    decided October 14, 1948.

      John F. X. Sheridan, Harry Silver and James F. Cosgrove for appellant.
    I. The criminal offense of obtaining money by false pretenses cannot he predicated false statement of intention to perform a future act, a promise not meant to be fulfilled. Hence, upon the record, defendant’s conviction cannot stand as a conviction for larceny by false pretenses. (People v. Blanchard, .90 N. T. 314; People v. Bothstein, 180 N. Y. 148; Chaplin v. United States, 157 P. 2d 697; People ex rel. Gellis v. Sheriff, 251 N. Y. 33; People v. Sloane, 254 App. Div. 780, 279 N. Y. 724.) II. The criminal offense of larceny by trick and device has no application. Section 1290 of the Penal Law (L. 1942, ch. 732) does not broaden the scope of the crime of larceny. (People v. Noblett, 244 N. Y. 355.) III. There is no proof that defendant did not intend to perform his promissory and contractual representations. Thus even if the indictment could he supported by proof of fraudulent promises the fact remains that there is no proof of anything beyond simple breach of contract — if indeed that he shown. (Kley v. Heady, 149 N. Y. 346; Bailen v. Potter, 251 N. Y. 224.) IY. There is no proof to sustain the grand larceny charge either by embezzlement (count 1) or .other form of larceny (count 2). V. Conviction of defendant under the larceny counts upon proof of false representations and pretense, which means were not alleged in the indictment, is contrary to the direct command of section 1290-a of the Penal Law. Defendant was convicted of an offense for which he was not indicted. (People v. Dumar, 106 N. Y. 502.) Y. Defendant could not' he guilty of both the embezzlement and the larceny counts, upon the record. Hence the jury’s verdict of guilty as charged cannot stand. (People v. Barnes, 158 App. Div. 712.)

      Charles P. Sullivan, District Attorney (Henry W. Schober of counsel), for respondent.
    I. Defendant’s fraudulent intent was sufficiently established. (Bitswoller v. Lurie, 225 N. Y. 464;
      Reno y. Bull, 226 N. T. 546.) II. The representations made by defendant, though coming within the rule applied by the law of fraud and deceit, were such as to satisfy the requirements of the Penal Law concerning fraudulent representations. (Penal Law, § 1290, subds. 1, 2, 3; People v. Miller, 169 N. T. 339Zinh v. People, 77 N. Y. 114; Smith v. People, 53 N. Y. Ill; People v. Noblett, 244 N. Y. 355; L. 1942, ch. 732; People v. Bearden, 290 N. Y. 478.) III. was no defect in the indictment. (People v. Wiechers, 179 N. Y. 459; People v. Bresler, 218 N. Y. 567; People v. Cummins, 153 App. Div. 93, 209 N. Y. 283; People v. Weiss, 158 App'. Div. 235, 210 N. Y. 546; People v. Werblow, 241 N. Y. 55; Hope v. People, 83 N. Y. 418; Phelps v. People, 72 N. Y. 365; People v. Sullivan, 173 N. Y. 122.) IY. There was no error in the trial court’s charge.
   Per Curiam.

The indictment upon which defendant has been convicted contains thirty counts, fifteen charging theft as bailee and agent, the balance, that sort of theft labeled and prosecuted prior to 1942, as obtaining property by false pretenses. It is with these latter counts that we are concerned.

In this State, before the 1942 amendment of section 1290 of the Penal Law — as at the common law — the crime of obtaining property by false pretenses could not be predicated upon a promise or upon an expression of intention not meant to be fulfilled. (See People v. Blanchard, 90. N. Y. 314, 324; People v. Rothstein, 180 N. Y. 148, 152.) The new larceny law (Penal Law, §§ 1290, 1290-a; L. 1942, ch. 732), it is true, as the district attorney observes, was aimed at eliminating the subtle and confusing distinctions that had previously differentiated the various types of theft. It was not, however, designed to, and did not, broaden the scope of the crime of larceny or designate as criminal that which was previously innocent. Consequently, upon the facts here presented, the trial court should have charged, as requested, that a conviction could not be based upon “ intention ” or upon “ a state of facts not then in existence ”, and that, to convict, the jury must find that defendant falsely misrepresented an existing fact ” — for, as instructed, the jury was to return a verdict of guilt based upon evidence of conduct never regarded as criminal in this State.

There must, therefore, be a new trial, and, since that is so, we call attention to section 1290-a of the Penal Law which permits proof of false representation or pretense only if there is allegation thereof in the indictment.

The judgments should be reversed, and a new trial ordered.

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

Judgments reversed, etc.


author: Per Curiam:

text:
    Romona S. Kleinman, Also Known as Shirley K. Levin, Appellant, v. Metropolitan Life Insurance Company, Respondent.
    Submitted October 4, 1948;
    decided October 14, 1948.

      David B. Crow for motion.

      Isidor Neuwirth and Emil K at sha opposed.
   Per Curiam:

An order requiring security for costs can be made only by “■ the court in which the action is pending ” (Civ. Prac. Act, § 1524). When the motion for security in the present case was made (see Civ. Prac. Act, § 113), no appeal had been taken to this court and the action was pending in the Supreme Court for all purposes. The subsequent appeal to this court did not have the effect of transferring the action to us. Under our practice, the record itself is not transmitted to us but merely a transcript thereof. Hence, with the exception of matters relating to the appeal itself and motions required by statute to be made (Rules of the Court of Appeals, rule XVIII; Cushman v. Hatfield, 52 N. Y. 653; Civ. Prac. Act, § 149), the'action is regarded for all other purposes as still pending in the court of original jurisdiction (People ex rel. Hoffman v. Board of Education, 141 N. Y. 86, 87; v. Allen, 147 N. Y. 346, 347. See, also, Waldo v. Schmidt, 200 N. Y. 199; Matter of Schaefer, 293 N. Y. 774).

It follows that (even though an appeal is pending here in the present case) a motion for a stay pursuant to sections 1524 and 1528 of the Civil Practice Act must be made in the Supreme Court in which the action was brought.

The motion should be denied.

Lotighran, Ch. J., Lewis, Conway, Desmond, Thacher, Dye and JJ., concur.

Motion denied.