text:
    Morse & Grossman, Inc., Respondent, v. Acker & Co., Inc., Appellant. Brokab Corp., Respondent, v. Acker & Co., Inc., Appellant, and Fidelity Warehouse Co., Undertenant.
    Argued March 3, 1948;
    decided April 22, 1948.

      Aaron Frank, Francis V. Hurley and Nathan L. Samuels on for appellant
    I. Tenant, having leased six physically connected buildings as- one unit, is entitled to the same protection under the Commercial. Bent Law as the tenant of a single building covering six lots. (U. S. Const., 14th Amendt.; N. Y. Const., art. I, §§ 6, 11; Roberg v. Phipps Estate, 156 F. 2d 958; Belvedere Hotel Co. v. Williams, 137 Md. 665; Shaft v. Carey, 107 Wis. 273; Little Carnegie Realty Corp. v. Delmonico Movienews Theatre, 273 App. Div. 45; Barrow Realty Corp. v. Village Brewery Restaurant, Inc., 272 App. Div. 262; TrueValue Slipper & Sandal Corp. v. Quaker Mechanical Corp., 189 Misc. 328; Dvorkin v. Tudor Properties Co., 71 N. Y. S. 2d 307; People ex rel. Beaman v. Feitner, 168 N. Y. 360; People v. Santoro, 229 N. Y. 277; Reed v. Bell & Co., 188 Misc. 914; Culver v. Title Guar. & Trust Co., 296 N. Y. 74; Walker v. 18 Street Holding Corp., 267 App. Div. 141; H. R. H. Mfg. Co., v. Dennis, 188 Misc. 446.) II. The tenant’s commercial space is the minimum area as to which the landlord must comply with the requirements of 25% equity and 50% investment under subdivision (d) of section 8. (Matter of Singer [State Laundry Co.], 189 Misc. 150; Randall v. Bailey, 288 N. Y. 280; Gasoff Realty Corp. v. Serval Food Exch., 71 N. Y. S. 2d 58; Little Carnegie Realty Corp. v. Delmonico Movienews Theatre, 273 App. Div. 45; Lewittes & Sons v. Spielmann, 73 N. Y. S. 2d 552; Culver v. Title Guar. & Trust Co., 296 N. Y. 74; Reed v. Bell & Co., 188 Misc. 914.) III. There is no provision for a partial dispossess either in the Civil Practice Act or the Commercial Bent Law. (Kauffman & Sons Saddlery Co. v. Miller, 72 N. Y. S. 2d 911; Lewittes & Sons v. Spielmann, 73 N. Y. S. 2d 552; Joanette Juniors, Inc., v. Princeway Realty Corp., 272 App. Div. 420; Matter of Metro Export Packers, Inc., 272 App. Div. 943.) IV. The effect of the lower court’s ruling is to bestow upon respondent, a grantee, a power greater than that possessed by his grantor, the landlord of the entire unit; such a power cannot be recognized without thwarting the statutory objective.

      George Brussel, Jr., and David G. Haskins for Morse & Grossman, Inc., respondent.
    I. The landlord has properly qualified under the exception set forth in subdivision (d). It is “ a person ” who acquired “ title to the. building or other rental area ” within the meaning of the statute. (McSweeney v. Bazinet, 269 App. Div. 213; Matter of Evers v. Dimino, 186 Misc. 136; People ex rel. Leonard v. Hamilton, 27 Misc. 308; Noyes v. Children’s Aid Soc., 70 N. Y. 481; Matter of Mortgage Corp. v. Menan Realty Corp., 258 App. Div. 429; Matter of Cowles v. Board of Regents, 266 App. Div. 629; Matter of Hardecker v. Board of Education, 180 Misc. 1008; Caddy v. Interborough Rapid Tr. Co., 195 N. Y. 415; Bailey v. School Dist. No. 5, 204 App. Div. 125; Mecca Realty Co. v. Kellogg Toasted Corn Flakes Co., 85 Misc. 598, 166 App. Div. 74.) II. Respondent did not seek or obtain a final order dispossessing the appellant from part of its space. The question of partial dispossess has no application. (J. C. A. Trading Corp. v. Musels, 71 N. Y. S. 2d 183; Bernzweig v. Beck Realty Corp., 189 Misc. 918.) III. The emergency rent of the buildings not affected by this proceeding can be fixed under subdivision (e) of section 2. (Cronson v. Fink, 184 Misc. 723.)

      Ruben M. Cohen for Brokab Corp., respondent.
    I. The building involved in this proceeding is included within the Commercial Rent Law. (Trade Accessories v. Bellet, 184 Misc. 962; Tompkins v. Hunter, 149 N. Y. 117; Kesbec, Inc., v. City of New York, 67 N. Y. S. 2d 900; Peerless Sugar Co. v. 35 Steuben St. Realty Corp., 66 N. Y. S. 2d 839; Dunham v. Townshend, 118 N. Y. 281; Matter of City of New York [Newport Ave.], 218 N. Y. 274; Goetz v. Duffy, 171 App. Div. 680.) II. The landlord proved compliance with the requirements of the Commercial Rent Law. III. The Commercial Rent Law, although broad in its scope, should receive a reasonable construction by the courts. (Sissias v. Perlmutter, 184 Misc. 174; Rosen v. 370 West 35 Street Corp., 184 Misc. 172.)
   Fuld, J.

These appeals, presenting another aspect of the emergency rent legislation which affects property in the city of New York, require construction and application of section 8 of the Commercial Rent Law (L. 1945, ch. 3, as amd.). The respondent in each case is a landlord; in one case, he is the owner of the building 162 Maiden Lane, in the other, of 35 De Peyster Street. Each brought a proceeding pursuant to subdivision (d) of section 8 of the Rent Law to recover possession of his respective building from the appellant who occupies both of these buildings as tenant.

For upwards of eighty years, appellant has leased and occupied six contiguous and physically integrated buildings which include the two here involved. Covering an entire block front, the buildings, through the years have been, and still are, devoted exclusively to housing a single unitary business enterprise — appellant’s bonded warehouse. All six buildings are customarily served by a common entrance located in the building at 73-74 South Street, wherein is also situated the warehouse office. The unitary and interdependent character of the premises is further emphasized by the circumstances that three of the locations — including 35 De Peyster Street and 162 Maiden Lane — have no other or separate means of entrance whatever and that 162 Maiden Lane has no stairway, elevator or electric hoist, the only way up or down being through the adjoining building, 73-74 South Street, which connects with 162 Maiden Lane at various floor levels.

Appellant and its former landlord, the predecessor in title of both respondents, always treated and dealt with the six buildings as a single integrated structure. Indeed, this concept of singleness, evident throughout, is all-pervasive. The parties consid: ered the several buildings as ‘ ‘ the premises ’ ’, and, in the last written lease between them, the landlord reserved a single'rental for the entire leasehold — $8,000 a year plus 50% of the “ net profit earned by the operation of the premises No effort was made, no intent evidenced on either side, to apportion the fixed flat rent of $8,000 a year among the component parts; and, just as significant, the variable percentage rent was measured by the profits derived from operation of the entire property as a unitary enterprise with no attempt at apportionment or allocation. And when, in April, 1945, following passage of the emergency rent legislation, the landlord gave notice ■— pursuant to section 3 of the Commercial Rent Law — of the emergency rent to be paid, he specified a single undivided and indivisible rental for the entire premises. In addition, the lessor’s privilege of cancellation was, under the lease, applicable to the entire leasehold, and to the entirety alone, and was conditioned upon circumstances affecting the whole of the space rented. After the written lease expired on December 31, 1945, appellant remained in possession of the premises on a month to month basis “ under the exact same terms and conditions * * * contained in [his] written lease ”.

Approximately a year later, the former landlord, in a series of apparently unconnected transactions, sold five of the individual buildings, each to a separate and different vendee. Two of these purchasers, the respondents herein,.have instituted the present summary proceedings to recover possession of their respective properties.

It is against the background of these facts that we are called upon to determine whether subdivision (d) of section 8 of the Commercial Rent Law, which makes no provision whatever for partial dispossession, nevertheless permits the piecemeal eviction of a tenant from various portions of his space simply because the several components of the demised premises were separately disposed of to different persons.

By its introductory sentence, section 8 flatly prohibits the eviction or removal of a tenant from his leasehold as long as he pays his rent, except in specific enumerated instances. Insofar as here material, the statute recites that “ So long as the tenant continues to pay the rent ” authorized by law and notwithstanding the expiration of his lease, “ no tenant shall be removed from any commercial space, by action or proceeding to evict or to recover possession, by exclusion from possession, or otherwise * * * unless: * * * (d) The landlord owned or acquired an enforceable right to buy or take possession of the building or other rental area on or before January twenty-fourth, nineteen hundred forty-five and seeks in good faith to recover possession of the commercial space for his immediate and personal use; or possession is sought by a person who acquires title to the building or other rental area subsequent to January twenty-fourth, nineteen hundred forty-five, and who likewise seeks in good faith to recover possession of the commercial space for his immediate and personal use; provided, however, that * * * such landlord or such person shall have an equity in the property of not less than twenty-five per centum of the purchase price ”. (Emphasis supplied.) (L. 1945, ch. 3, as amd. hy L. 1946, ch. 272.)

The basic purpose of the emergency rent legislation was to protect tenants by placing a ceiling on rents and by preventing widespread evictions while the emergency created by the wartime shortage of space continued. (Commercial Rent Law, § 1; see, also, Matter of Fifth Madison Corp. [N. Y. Tel. Co.], 297 N. Y. 155; Twentieth Century Associates, Inc., v. Waldman, 294 N. Y. 571.) Accordingly, consonant with settled canons of construction, the statutory language must be interpreted to effectuate that purpose.

The value of commercial space to a tenant lies largely in its particular extent and configuration; the use to .which he puts the premises may not admit of gerrymandering or even diminution. Eviction of a tenant from a part of the demised space may well render the remainder so uneconomical and so impractical that he may ultimately have no choice but to surrender the entire area. In other words, partial eviction might well compel complete removal — a result patently at odds with the Legislature’s purpose to assure the tenant continued possession. Viewed in this light, it is obvious that the words commercial space ”, as used in section 8, relate to and denote the entire premises rented and occupied by the tenant. It is those premises which of necessity constitute the minimum unit against which an eviction proceeding may be brought. This interpretation is buttressed by the fact that, while subdivision (a) of the same section 8 — as well as other provisions of the statute (§2, subds. [h], [i], [j]) — makes express reference to “ any part of the commercial space ”, no similar phrase is used in subdivision (d). This deliberate omission from section 8(d) of such a qualifying phrase reveals a clear legislative purpose that there shall be no dispossession of a tenant from less than his entire premises, and it is undisputed that the original lessor, as long as he remained the landlord, could not have instituted a proceeding to accomplish the partial eviction of the tenant. Consequently, grantees from that lessor, standing in no better position, acquire no greater right or power to evict or remove the tenant, piecemeal, from a portion of his rented space.

Looking still at the language of the statute, we are persuaded that section 8 (d) permits the landlord to dispossess the tenant from his “space” only if the landlord owns — or has a right to buy — “ the building or other rental area ”, Reference to other provisions of the statute (e.g., § 1, § 2, subds. [e], [h]; § 4) demonstrates that the landlord’s property— “ building or other rental area ” — must include within itself all of the premises — “ commercial space ” — rented and occupied by the tenant. For instance, in subdivision (e) of section 2, it is in part provided that, if the commercial space was not used on the freeze date for commercial purposes, the emergency rent was to be the reasonable rent then charged “ for the most nearly comparable commercial space in the same building or other rental area ”, and in section 4, the term “ entire property ” is described as “ including land and building or other rental area in which such commercial space is located ”. (Emphasis supplied.) Unless the Legislature’s discriminating selection of language is to be entirely disregarded, we must assign some significance to the repeated juxtaposition of the two phrases — “ the commercial space ” and “ the building or other rental area ” — and the apparent distinction between them in the mind of the Legislature. As indicated, considering the particular manner in which the latter phrase is employed throughout the statute and considering also the relative positions of landlord and tenant, it can reasonably and logically be interpreted only as the whole which contains the part — the landlord’s property which contains the tenant’s space. Stated differently, the phrase, “ the building or other rental area ” must refer to the physical unit of property held by the landlord — be it building, complex of integrated'buildings, or building plus open land — which includes and embraces within itself the entire premises rented by the tenant.

The circumstance that each of the respondents purchased and owns a building, or that each seeks possession of all of the property bought by him, cannot change the fact that he failed to acquire “ the building or other rental area ” containing the tenant’s space. Nor can that circumstance vary the consequences visited upon the tenant sought to be evicted, for he would still be left with only a portion, perhaps an unusable portion, of the premises which he was occupying. To permit the landlord to remove the tenant from less than the area rented, the lease agreement would have to be rewritten by reducing the amount of space demised and by adjusting the rent thereafter to be paid for the space remaining. The statute confers no such power.

In brief, then, the tenant may not be removed from less than the entire space which he rented and, in order for the landlord to qualify and proceed under section 8, subdivision (d), he must hold a unit of property larger than, or coextensive with, the tenant’s premises. Since the space here occupied by the tenant is the unit • leased, the entire . integrated group of six buildings, he may not be dispossessed by any one having title to less than the whole of that unit.

If partial and piecemeal dispossession were to be sanctioned, circumvention of the emergency rent legislation would be facilitated, its evasion encouraged. By simply disposing of a part of the tenant’s rented space — be it a floor of an entire building or one of a group of buildings — the lessor would render the tenant subject to removal and ouster from that portion of the space. Such a result both the letter and the spirit of - the Commercial Bent Law condemn.

In each case, the order of the Appellate Division should be reversed, and the petition dismissed, with costs in all courts.

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

Orders reversed, etc.


source: Caselaw Access Project

author: Lewis, J. Desmond, J.

license: Public Domain

text:
    Edsil Trading Corp., Appellant, v. John Minder & Sons, Inc., Respondent. Isaac Faighes, Plaintiff, v. Edsil Trading Corp., Appellant, and John Minder & Sons, Inc., Impleaded Defendant-Respondent.
    Argued January 6, 1948;
    decided April 22, 1948.

      Jsador Goetz, William Auerbach, Andrew Klein and Rubin Cohen for appellant.
    I. Appellant is seeking relief pursuant to the terms of an express contract. The agreement though oral was clear, definite and enforcible. II. The agreement was legal and designed to comply with the Emergency Price Control Act. (Meyer v. Price, 250 N. Y. 370; People ex rel. N. Y. C. R. R. Co. v. Walsh, 211 N. Y 90; German v. Snedeker, 257 App. Div. 596; Chance v. Guaranty Trust Co. of N. Y., 260 App. Div. 216; Miorin v. Miorin, 257 App. Div. 556; United States v. Bruno, 329 U. S. 207; Tuskegee Homes Co. v. Oswald, 248 Ala. 64; Cedar v. McCarthy, 70 N. E. 2d 698.) III. Appellant is entitled to recover for money paid under mistake. (Municipal Metallic Bed Mfg. Corp. v. Dobbs, 253 N. Y. 313.) IV. Appellant is entitled to recover for money had and received. (Curry v. Mackenzie, 239 N. Y. 267; Tuskegee Homes Co. v. Oswald, 248 Ala. 64; Porter v. Warner Holding Co., 327 U. S. 773.)

      Philip H. Weeks for respondent.
    I. The sales were illegal and will not support a cause of action based thereon. (Enterprise Frame & Novelty Corp., v. Schieman, 183 Misc. 3; Marrow Mfg. Corp. v. Eitinger, 185 Misc. 900, 270 App. Div. 830, 296 N. Y. 760; Marrow Mfg. Corp. v. Walco Bead Co., 270 App. Div. 889, 296 N. Y. 764; Marrow Mfg. Corp. v. Eitinger Bead Co., 270 App. Div. 830, 296 N. Y. 762; International Spangles Corp. v. Marrow Mfg. Corp., 294 N. Y. 295.) II. All causes of action pleaded are based entirely and indivisibly upon alleged illegal sales and must stand or fall together. The prices and the alleged warranties are part and parcel of the sales. Without the sales, there could be no breach of warranty. With the sales, illegal as they are, there can be no actionable breach of warranty and, therefore, no recovery. A cause of action for breach of warranty as to the quality of goods sold rests inextricably on the sale itself. (Carmine v. Murphy, 285 N. Y. 413; Adler v. Zimmerman, 233 N. Y. 431; Tench v. Lawson, 225 App. Div. 198; DiTomasso v. Loverro, 250 App. Div. 206; O’Connor v. O’Connor, 263 App. Div. 820, 288 N. Y. 579.) III. Appellant cannot recover on any theory. (Municipal Metallic Bed Mfg. Corp. v. Dobbs, 253 N. Y. 313.)
   Lewis, J.

This appeal involves two actions which, as they come to us, have been consolidated. Both actions arise from the same series of transactions — the sale of meat by the defendant, John Minder & Sons, Inc. (hereinafter referred to as Minder), to the plaintiff Edsil Trading Corp. (hereinafter referred to as Edsil) between October 6, 1942, and January 27, 1944.

In the first action, Edsil as plaintiff seeks to recover from the defendant Minder amounts paid by it to Minder in excess of the prevailing ceiling prices established by the Office of Price Administration (hereinafter referred to as OPA) — acting under the Emergency Price Control Act of 1942 (U. S. Code, tit. 50 Appendix, §§ 901-946, as amd.). For a second cause of action in the first action Edsil seeks damages for alleged misrepresentation and breach of warranty as to the fitness of the meat purchased by it from Minder for resale, and for resulting loss of good will suffered by plaintiff when it delivered unmerchantable products to its customers.

In the second action, one Faighes sues Edsil for breach of warranty arising out of the purchase of meat and meat products from Edsil. In that action Edsil served a cross complaint upon Minder alleging that the meat products sold to Faighes and for which Faighes claims damages had been ■ bought by Edsil from Minder.

Special Term granted defendant’s motion for summary judgment dismissing Edsil’s complaint in the first action and the cross complaint in the second action and ordered judgment in favor of Minder. At the Appellate Division the judgment appealed from was unanimously affirmed. We permitted Edsil to appeal from the judgment entered upon the order of the Appellate Division.

The complaint in the first action alleges the following facts: During the period from October, 1942, to January, 1944, the defendant Minder, a meat packer, sold certain meat and meat products to the plaintiff Edsil, a meat exporter. According to an oral contract entered into in November, 1942, Edsil and Minder agreed that the prices to be charged by Minder and paid by Edsil were not to exceed the prices established by OPA. According to the complaint “ It was further agreed that at the said time, the said ceiling prices were not known to the plaintiff, and as defendant claimed they were not known to the defendant, that defendant should invoice to plaintiff, upon the invoices accompanying such sales and deliveries, at prices approximating what defendant believed w'ould be such ceiling prices, and plaintiff would temporarily pay such invoice prices, but that in the event it should be ascertained that the prices, as charged by the defendant to the plaintiff upon said invoices from time to time, shall be in excess of the ceiling price or prices fixed and established by the Office of Price Administration, then and in that event the defendant was to refund and repay to the plaintiff any amount invoiced by defendant and paid by the plaintiff in excess of such ceiling prices.” (Emphasis supplied.)

Pursuant to that agreement Minder invoiced Edsil on each sale at a price considered by it to be the approximate ceiling price and Edsil paid Minder all but a small part of the amounts thus invoiced. According to the complaint those invoices amounted in total to $354,379.59 of which amount all but $12,937.28 had been paid. However, Edsil claims charges by Minder of $38,402.21 in excess of ceiling prices, leaving a balance due Edsil of $25,464.93.

As a complete defense to this action, the defendant Minder alleges that any meat or meat products sold by it to the plaintiff Edsil at prices in excess of those fixed by OPA regulations were unlawful transactions and that Edsil, being a party thereto, cannot recover any claims based thereon. The defendant Minder asserts that there has been a violation of subdivision (a) of section 4 of the Emergency Price Control Act of 1942 (H. S. Code, tit. 50, Appendix, § 904, subd. [a]) which reads in part as follows: (a) It shall be unlawful, regardless of any contract, agreement, lease, or other obligation heretofore or hereafter entered into, for any person to sell or deliver any commodity, or in the course of trade or business to buy or receive any commodity * * * in violation of any * * * price schedule ”. Belying upon the statute last quoted above the defendant Minder argues that, regardless of any such agreement respecting adjustments as alleged by appellant, the sales at over-ceiling prices as alleged are illegal and that the acts of the plaintiff Edsil in making any such purchases are unlawful and serve to defeat its present cause of action.

If, as is argued by the defendant Minder, it sold meat to the plaintiff Edsil at over-ceiling prices, such sales were illegal and plaintiff can maintain no action for a refund of the excess paid. (See, Lightbody v. Russell, 293 N. Y. 492; Marrow Mfg. Corp. v. Eitinger, 296 N. Y. 760.) However, it is alleged in the complaint that, by contract, the sale price of the meat to be delivered was not to exceed ceiling prices. The alleged contract covering the sales here involved specifically provided that the determination of prices to be paid was to be made according to OPA regulations. In the event such a determination had not been, made prior to the actual delivery of the products contracted for, the defendant Minder was to estimate the approximate ceiling prices. The charges thus invoiced and paid by plaintiff Edsil, which are the basis for the recovery sought, were not the final agreed contract prices. They were temporary charges until such time as the actual OPA ceiling prices could be determined. When the actual contract prices had been determined according to OPA regulations currently applicable, an adjustment was to be made and excessive temporary charges, if any, which had been paid by the seller, Minder, were to be refunded to the buyer, Edsil.

Thus the contract prices* were to be determined and paid according to OPA ceiling prices. The money actually paid in the first instance was not intended as the sales price but, as we have seen, merely as a temporary payment subject to later adjustment when the ceiling price should be established.

That circumstance differentiates the present case from the Marrow cases (296 N. Y. 760, 296 N. Y. 762 and 296 N. Y. 764) where, in each ease, the price agreed upon for the product sold and delivered was a final agreed price on which the buyer and seller dealt — the intention of the parties being that in each instance the sale involved had been consummated. In each of the cases last cited above, upon discovery that the prices exceeded those set by OPA — the buyer , sued for a refund. In those circumstances it was held that, the goods having been purchased for use in trade or business, the Emergency Price Control Act provided no remedy for the plaintiff which was a purchaser paying an excessive price.

In the present case the plaintiff does not rely upon a statutory remedy for its right to a refund of excessive prices paid. It seeks to enforce the price agreed upon in a contract which allegedly was designed to comply with, rather than to violate current applicable OPA regulations.

The defendant Minder argues that since “ for almost the entire period covered in the complaint ” there were specific dollar and cents ceiling prices ” on the products sold, any contract such as is here involved, is manifestly illegal and had as its purpose to circumvent regulations prescribed by the OPA. In answer to that assertion the plaintiff claims that the ceiling price was not always a simple thing to determine even where the regulation in question listed dollars and cents ceilings. Affidavits submitted by the plaintiff Edsil in opposition to defendant Minder’s motion for summary judgment, state that the variety and complexity of O.P.A. reports and the recent amendments made it difficult even for law enforcement officials of O.P.A. to know, exactly what the prices were.” Plaintiff Edsil also claims that the agreement was entered into at a time when price regulations were still in a formative stage and frequent amendments were made. In fact, it is said that these amendments were sometimes retroactive. This allegation is supported in part by the following testimony given by William Minder, Jr. — an officer in defendant corporation— when examined before trial: Q. You also stated that if, after further investigation, you find that the prices charged were over your ceiling, a refund would be made. What did you mean by further investigation, by whom Í A. Many retroactive regulations came out by O.P.A. and price changes had to be made retroactive.” (Emphasis supplied.)

If, as the plaintiff Edsil contends, there were times when it was practically impossible — in view of retroactive amendments and serious' questions as to classification of the meat — to determine the OPA ceiling prices at the time of actual delivery of the goods, we think the agreement which is the basis of this action was legal and appropriate in the circumstances and this action for the amount of temporary payments made by the plaintiff Edsil in excess of the agreed contract price was properly instituted.

If the contract here involved was entered into in good faith because of the difficulty of determining exact ceiling prices at the time of the delivery of the goods, it was valid and enforcible. However, if, as is claimed by the defendant, dollar and cents ” ceiling prices established by OPA made the determination of the correct charge readily ascertainable at the time of the sale, it may well be that there was no justification for such a contract. If such is the case, it may be found that the contract was not entered into in good faith but for the purpose of circumventing the rules and regulations of OPA and hence was invalid. As the record of proof upon this point presents conflicting claims, it should not, in our view, be decided upon a motion for summary judgment.

In addition to denying the legal validity of such a contract as is here alleged, the defendant Minder also denies the existence of any such agreement. In that connection it appears that on several occasions during the period of these transactions credits were actually given by Minder to Edsil when it was shown that the original charges had exceeded OPA ceiling prices. It also appears that invoices from Minder carried the following stamped notation: ‘ Prices quoted are to the best of our knowledge not over ceiling. If, after further investigation* we find the prices charged you [were] over our ceiling, a refund will be made.”

Support is thus given to the plaintiff EdsiPs claim that an agreement did exist such as is alleged in the complaint. In any event, as to the existence of the agreement, a question of fact was presented which should be determined upon a trial.

The second cause of action in the first case is for breach of warranty in connection with the same sales of meat. Relying upon the rule of International Spangles Corp. v. Marrow Mfg. Corp. (294 N. Y. 295) the Special Term Justice held that no action of any kind could be maintained upon a contract unless it was proven that the sale price was under the maximum OPA ceiling. Having ruled as to the first cause of action that the sales there alleged were illegal, Special Term dismissed the second cause of action. In view of our conclusion that a trial should be had to determine issues of fact tendered by the pleadings, it follows that the defendant’s motion for summary judgment dismissing the second cause of action should be denied.

The judgments in the consolidated actions should be reversed: in Edsil Trading Corp. v. John Minder & Sons, Inc., the motion by the defendant John Minder & Sons, Inc., for summary judgment dismissing the complaint should be denied; in Faighes v. Edsil Trading Corp., and John Minder & Sons, Inc., the motion by the impleaded defendant John Minder & Sons, Inc., for summary judgment dismissing the cross complaint served by the defendant Edsil Trading Corp. should be denied, with one bill of costs in all courts.

Desmond, J.

(dissenting). In the Marrow cases (296 N. Y. 760, 296 N. Y. 762, 296 N. Y. 764) we held that the OPA statute (Emergency Price Control Act of 1942, § 4 [U. S. Code, tit. 50, § 904]) meant what it said: that any sale of a covered commodity at over-ceiling price was “ unlawful ”, and that a “ trade purchaser ” (not an ultimate consumer) who paid more than the ceiling price could not recover back the excess he had unlawfully paid. It is the fact of overpayment, regardless of agreement or intent or lack of intent, which makes such a vendee a participant in the unlawful transaction, and puts him, like his vendor, outside the protection of the courts (see International Spangles Corp. v. Marrow Mfg. Corp., 294 N. Y. 295, 299, which cites Carmine v. Murphy, 285 N. Y. 413, 416, which in turn quotes, as to an illegal sale, “ the general rule of law that no right of action can spring out of an illegal contract ”). Lack of knowledge that the prices were over ceiling, or mistake or confusion in that regard, cannot help this plaintiff-purchaser any more than it absolved purchaser Marrow in the three cases first above cited. That plea might serve such a purchaser in a criminal prosecution where willfulness is expressly made an ingredient of the crime (United States v. Bruno, 329 U. S. 207) but our Marrow cases (supra) are plain holdings that ignorance or innocence as to the price schedules will not lift the iron curtain which the statute has set between the violating vendor, and the return of part of his money. If willfulness or no, were the test of plaintiff’s rights, plaintiff Marrow’s pleadings would not have been held insufficient, since Marrow specifically alleged that it had been deceived by fraudulent misrepresentations into believing that the prices it paid were under ceiling.

The excuse here offered by plaintiff is a mere variant of the one rejected by us in the Marrow cases (supra).

The judgment should be affirmed, with costs.

Loughran, Oh. J., Conway, Thaoher, Fttld and Dye, JJ., concur with Lewis, J.; Desmond, J., dissents in opinion.

Judgments reversed, etc.


author: Conway, J.

text:
    American Reserve Insurance Company, Respondent, v. China Insurance Company, Limited, Appellant.
    Argued March 9, 1948;
    decided April 22, 1948.

      James B. Burke for appellant.
    I. There exist questions between the parties which call for arbitration under the treaty. II. The arbitration agreement in the treaty is binding upon respondent and appellant. (Gilbert v. Burnstine, 255 N. Y. 348; Matter of Heyman, Inc., v. Cole Co., 242 App. Div. 362; Matter of Zimmerman v. Cohen, 236 N. Y. 15.) III. Respondent’s own papers upon which the warrant of attachment was granted show that it has no standing before the courts. An arbitration award is a condition precedent to an action in rem as well as in personam. IV. Respondent should not be allowed to obtain or support its attachment by its own breach of agreement to arbitrate. (Blossom v. Estes, 84 N. Y. 614.) V. A stay of proceedings pending arbitration is no protection to appellant. VL The stay of proceedings provided for by section 1451 of the Civil Practice Act is not the exclusive relief available to the appellant. (Auerbach v. Grand Nat. Pictures, Ltd., 176 Misc. 1031, 263 App. Div. 712.)

      Arnold T. Koch for respondent.
    I. The arbitration clause is no ground for vacatur.' (Matter of Zimmerman v. Cohen, 236 N. Y. 15; Nagy v. Arcas Brass & Iron Co., 242 N. Y. 97; Matter of Haupt v. Rose, 265 N. Y. 108; Couper v. Malliet, N. Y. L. J., Dec. 23, 1944, p. 181; Wulfsohn v. Russian Republic, 234 N. Y. 372; Bard-Parker Co. v. Dictograph Products Co., 258 App. Div. 638; Kneapler v. Braufman, 266 App. Div. 756; Jones v. Hygienic Soap Granulator Co., 110 App. Div. 331; Auerbach v. Grand Nat. Pictures, Ltd., 176 Misc. 1031, 263 App. Div. 712; Murdoch v. City of Asbury Park, 48 F. Supp. 18; Goldstein v. Schleifer, 209 App. Div. 899.) II. The arbitration clause does not cover the “ controversy ” alleged to exist between the parties. (Gross v. Mendel, 171 App. Div. 237, 225 N. Y. 633; Sokoloff v. National City Bank, 239 N. Y. 158; Parker v. Hoppe, 257 N. Y. 333, 258 N. Y. 365; Gerard v. Bank of New York & Trust Co., 240 App. Div. 531; Matter of Webster v. Van Allen, 217 App. Div. 219; Matter of Kelley, 240 N. Y. 74; Matter of Lehman v. Ostrovosky, 264 N. Y. 130; Matter of Eagar Constr. Corp. v. Ward Foundation Corp., 255 App. Div. 291; Matter of Marchant v. Mead-Morrison M. Co., 252 N. Y. 284.) III. It would he futile and unconscionable to compel arbitration herein. (Matter of Wenger & Co. v. Proper S. H. Mills, 239 N. Y. 199; Matter of Webster v. Van Allen, 217 App. Div. 219.)
   Conway, J.

The plaintiff, a New York insurance company, entered into a treaty with the defendant, an insurance company organized and existing under and by virtue of the laws of the Republic of China, with its principal office at Shanghai, China, for the reinsurance of certain Chinese risks. Under a formula set up in the treaty, defendant was to pay to plaintiff certain premiums and the plaintiff was to reimburse defendant for losses. Statements of account were to be rendered quarterly, and payment was to be made by the plaintiff if losses exceeded premiums due, or by the defendant if the accrued premiums exceeded losses. The defendant, in July, 1946, sent plaintiff a statement of account covering the period from April 1, 1945, to March 31, 1946. That statement showed a balance due plaintiff of 4,117,135.59 Chinese national currency dollars, the United States dollar equivalent of which was $95,318.67. In August, plaintiff requested payment. Defendant replied in October that it was prevented from paying the.amount due, “ not by our own unwillingness to remit to you your due balances, but solely by rulings promulgated by our government that foreign exchange will not be sanctioned by our government Banks for reinsurance premiums.” The defendant also said: “Your credit balance is at present being retained by us, and we shall be glad to receive your advices.”

The treaty of reinsurance contained an arbitration clause, which, except for the provisions relating to the appointment of arbitrators, is as follows:

“ In the event of any question arising as to the meaning of or in any way connected with or relating to this Agreement whether before or after the termination of the notice under this Agreement such question shall be settled in an equitable rather than a legal manner and all differences shall be referred to * * * Arbitration in Chungking * * *. The obtaining of an Award under the procedure herein provided shall be a condition precedent to any right of action in respect of any claim. The Arbitrators and Umpire will not have to undergo any judicial formalities and may abstain from following the strict rules of Law.”

Plaintiff brought suit in the Supreme Court for the balance due and procured an ex parte warrant of attachment against the property of the defendant in the New York City branch of the Bank of China.

The defendant, appearing specially, moved to vacate and set aside the warrant. That motion was denied at Special Term and the Appellate Division affirmed, certifying the following question: “ In view of the provisions for arbitration in the reinsurance treaty between the plaintiff-respondent and the defendant-appellant and the absence of any arbitration award should the warrant of attachment obtained herein by the plaintiff-respondent be vacated?”

Under sections 902 and 903 of the Civil Practice Act a plaintiff seeking an attachment must show, inter alia, that he has a cause of action. If plaintiff’s complaint and affidavits fail to establish a prima facie cause of action, or if they clearly establish the plaintiff must ultimately be defeated, the defendant may vacate the warrant of attachment. (Zenith Bathing Pavilion v. Fair Oaks S. S. Corp., 240 N. Y. 307, 311; Wulfson v. Russian Republic, 234 N. Y. 372, 377; Lamborn v. Lake Shore Banking & Trust Co., 231 N. Y. 616; California Packing Corp. v. Kelly Storage & Distributing Co., 228 N. Y. 49, 53-54; Bard-Parker Co. v. Dictograph Products Co., 258 App. Div. 638, 640; 7 Carmody on New York Pleading and Practice, pp. 601, 621.)

The defendant contended in the Appellate Division that there are matters of dispute concerning the meaning of the treaty of reinsurance, and that, under the arbitration clause above quoted, these must be referred to arbitration before any action may he brought under the treaty. Since the “ obtaining of an Award * * * shall he a condition precedent to any right of action in respect of any claim ”, defendant urges that plaintiff has not established a prima facie case in his complaint and affidavits, and accordingly, that the warrant of attachment should be vacated. The plaintiff urges that even if there be arbitrable matters, the only manner in which to enforce the right to arbitrate is through the procedure provided by the Legislature in the Civil Practice Act.

Before the adoption of the Arbitration Law in 1920, a party might disregard his agreement to arbitrate all disputes under a contract, for such agreements were held to be attempts to oust a court of law or equity of jurisdiction ”, and there was no effective means of enforcing them. (President, Managers & Co. of D. & H. Canal Co. v. Pennsylvania Coal Co., 50 N. Y. 250, 258; Hurst v. Litchfield, 39 N. Y. 377; Finucane Co. v. Board of Education, 190 N. Y. 76, 83.) It was only through action by the Legislature that these difficulties were removed. “ Under the new statute [1920] arbitration became both orderly and enforcible and was made subject in effect to a decree for specific performance.” (Matter of Feuer Transp., Inc. [Local No. 445], 295 N. Y. 87, 91.) What is now section 1451 of the Civil Practice Act was originally enacted as section 5 of the Arbitration Law (L. 1920, ch. 275). That section provides: “ § 1451. Stay of proceedings brought in violation of an arbitration contract or submission. If any action or proceeding be brought upon any issue otherwise referable to arbitration under a contract or submission * * * the supreme court, or a judge thereof, upon being satisfied that the issue involved in such action, or proceeding is referable to arbitration under a contract or submission * * * shall stay all proceedings in the action or proceeding until such arbitration has been had in accordance with the terms of the contract or submission.”

We think that the stay provided for in this section is the exclusive remedy for a person against whom an action has been brought in violation of an agreement to arbitrate. The Legislature has provided a means of enforcing that which was previously unenforcible; the defendant in such an action must use those means or none at all. This court has indicated — and lower courts have held — that it is not even proper for the defendant in such an action to plead the arbitration agreement as a defense or counterclaim. (See Nagy v. Arcas Brass & Iron Co., 242 N. Y. 97; Matter of Hosiery Manufacturers Corp. v. Goldston, 238 N. Y. 22; Lumsden v. Lumsden Bros. & Taylor, Inc., 242 App. Div. 852; Matter of Chapman-Kruge Corp., 239 App. Div. 795.) Certainly, it cannot be said that a plaintiff fails to state a prima facie cause of action merely because the contract upon which suit is brought contains an agreement to arbitrate. Defendant’s sole remedy is to apply for a stay of plaintiff’s action until the arbitration has been had.

The fact that the arbitration clause in the treaty of reinsurance states that ‘ ‘ The obtaining of an Award * * * shall be a condition precedent to any right of action in respect of any claim ”, does not give defendant greater rights. (Emphasis supplied.) Under the present provisions of the Civil Practice Act (§§ 1450, 1451), whether or not it is expressly so stated in the agreement to arbitrate, the obtaining of an award is, in effect, a condition precedent to a right of action; but, as pointed out above, the sole manner of enforcement is under section 1451 of the Civil Practice Act.

Defendant also points out that even if it were granted a stay of the action brought by plaintiff, it could not force plaintiff to submit to arbitration because the arbitration was to take place in Chungking. Hence, defendant says the plaintiff by its caprice could fail to proceed with the arbitration as called for by the contract, hoping that by the pressure of delay it could obtain concessions ” from the defendant whose funds meanwhile would be under attachment. If defendant does obtain a stay pending arbitration, and if plaintiff does refuse to arbitrate, that may be ground for Special Term, in its discretion, to vacate the warrant of attachment. We cannot say as a matter of law that the warrant should be vacated on that suppositious and nonexistent ground. The same may be said as to the possible conduct of the defendant if the attachment be vacated and the money transferred to China.

The order of the Appellate Division should be affirmed, with costs, and the question certified answered in the negative.

Loughran, Ch. J., Lewis, Desmond, Thaoher, Dye and Fuu>, JJ., concur.

Order affirmed, etc.


author: Loughran, Ch. J.

text:
    In the Matter of Roger H. Williams, Appellant, against Ferdinand Q. Morton et al., Constituting the Municipal Civil Service Commission of the City of New York, et al., Respondents.
    Argued March 8, 1948;
    decided April 22, 1948.

      H. Eliot Kaplan for appellant.
    I. The position now filled by the incumbent is identical with the position of “ Chief Medical Examiner ’ ’ filled provisionally by him up to the time of the purported abolition of that position. The nature of the position is determinable by its duties, functions and responsibilities, and not merely by its title. (Matter of Rooney v. Rice, 274 N. Y. 347; Matter of Mercer v. Dowd, 288 N. Y. 381; Matter of Rohr v. Kenngott, 288 N. Y. 97; Matter of Friend v. Valentine, 261 App. Div. 163, 285 N. Y. 764; Matter of Ackerman v. Kern, 256 App. Div. 626, 281 N. Y. 87; Matter of Petrillo v. Lynn, 243 App. Div. 796, 268 N. Y. 673; Matter of Byrnes v. Windels, 265 N. Y. 403.) II. The position of a medical examiner “ in charge of the medical staff ” is of a higher grade and rank than that of examining physician, Grade 4. It involves higher responsibilities, supervision and direction of other medical examiners on the hoard’s medical staff. (Matter of McGowan v. Board of Education, 273 N. Y. 68; Matter of Wipfler v. Klebes, 284 N. Y. 248; Spencer v. Ryan, 237 App. Div. 50, 262 N. Y. 600; People ex rel. Weeks v. Ward, 162 N. Y. S. 744, 179 App. Div. 905; Welling v. Portfolio, 26 N. Y. S. 2d 823.) III. The position occupied by the incumbent being substantially that of a “ Chief Medical Examiner ” (or one of similar nature), higher in rank or authority than examining physician, Grade 4, the transfer of the incumbent to the higher position was illegal. The position must be filled after competitive examination. (Spencer v. Ryan, 237 App. Div. 50, 262 N. Y. 600; Matter of Ackerman v. Kern, 281 N. Y. 87; Matter of Wipfler v. Klebes, 284 N. Y. 248; Holton v. Board of Supervisors, Monroe Co., 245 App. Div. 144; Matter of McNamara v. Holling, 282 N. Y. 109; Matter of Meenagh v. Dewey, 286 N. Y. 292; Matter of Andresen v. Rice, 277 N. Y. 271; Matter of Carow v. Board of Education, 272 N. Y. 341; Matter of Barthelmess v. Cukor, 231 N. Y. 435; Matter of Beggs v. Kern, 284 N. Y. 504.) IV. A temporary appointment, no matter how long its duration, cannot ripen into a permanent appointment. (McCann v. Kern, 262 App. Div. 109, 297 N. Y. 581; Matter of Ackerman v. Kern, 256 App. Div. 626, 281 N. Y. 87; Matter of Camfield v. Mealy, 288 N. Y. 149; Koso v. Greene, 260 N. Y. 491; Palmer v. Board of Education, 276 N. Y. 222; Matter of Scahill v. Drzewucki, 269 N. Y. 343; Matter of Hines v. LaGuardia, 293 N. Y. 207.) V. The incumbent is not a necessary party to this proceeding. (Matter of Waters v. Buck, 265 App. Div. 344, 290 N. Y. 840; City of New York v. Transport Workers’ Union of America, 28 N. Y. S. 2d 290.)

      Frank E. Karelsen, Jr., for Public Education Association, amicus curiae, in support of appellant’s position.
    A purported “ reassignment ” of an employee by a “ transfer ”, to perform duties substantially identical to those theretofore performed under a provisional assignment and at the same salary, is an evasion of the Constitution and the civil service laws as to promotions and as to filling such positions by competitive examination.

      Howard C. Kelly for New York Academy of Medicine, amicus curiae, in support of appellant’s position.
    When the difference in the nature of the positions is realized, an examination being concededly practicable and the position of examiner (medical examiner or examining physician) existing as a position classified in the competitive class of the civil service, it follows that the Board of Education is under the duty of holding a competitive examination for the position. No mere “ assignment ” meets the constitutional mandate. (Hale v. Worstell, 185 N. Y. 247.)

      Florence Kelly for The Women’s City Club of New York, Inc., amicus curios, in support of appellant’s position.
    The action of the Board of Education in insisting upon the assignment of a member of the medical staff of the board to be “ in charge of the medical staff ” does not assure the public or the school system that the best qualified person available for the responsible position of a chief medical examiner was earnestly sought to be found or appointed.

      John T. De Graff for The Civil Service Employees Association, Inc., amicus curios, in support of appellant’s position.
    While the incumbent’s assignment did not change the grade to which his position was allocated, nevertheless, the conceded facts demonstrate that he was assigned to higher and more responsible duties which are reflected in his new salary which was almost double the amount he previously received. It would be difficult to conceive of any state of facts which would more clearly exemplify the normal, ordinary and usual meaning of the word “ promotion ”.

      John P. McGrath, Corporation Counsel (Arthur H. Kahn, Seymour B. Quel and Michael A. Castaldi of counsel), for respondents.
    I. The Board of Education had the power to abolish in 1946, the position of chief medical examiner created by it in 1942, and to assign its duties to the existing position of examining physician, Grade 4. Since there existed a reasonable basis for the action of the board, its determination may not be upset. (Matter of Wipfler v. Klebes, 284 N. Y. 248; Matter of Conway v. Carey, 283 N. Y. 122; Matter of Spawn v. Fleming, 208 App. Div. 582; Matter of Edkins v. Wotherspoon, 173 App. Div. 330; Schieffelin v. Lahey, 243 N. Y. 102; Matter of Hirshfield v. Craig, 239 N. Y. 98; Matter of Evans v. Berry, 262 N. Y. 61;
      Matter of Petrocelli v. McGoldrick, 288 N. Y. 25; Thoma v. City of New York, 263 N. Y. 402; Matter of Amann v. Finegan, 253 App. Div. 364.) II. This proceeding was not brought within the fourth-month period prescribed by section 1286 of the Civil Practice Act and is, therefore, barred. (Matter of Weldon v. Rheinstein, 283 N. Y. 753; Matter of Phillips v. Kaplan, 242 App. Div. 815, 266 N. Y. 514.) I'll. The incumbent, not being a party to this proceeding, cannot be ousted from his position. (Matter of Cornehl v. Kern, 260 App. Div. 35, 285 N. Y. 777.)
   Loughran, Ch. J.

The petitioner, a citizen of this State, brought this proceeding under article 78 of the Civil Practice Act for an order (1) invalidating the employment of Dr. John E. Conboy as medical examiner in charge of the medical staff of the Board of Education of the City of New York; (2) enjoining the board from assigning the duties of that position to anyone except a person appointed thereto from an eligible list established through a competitive examination conducted ptirsuant to the Civil Service Law; and (3) directing the Municipal Civil Service Commission of the city to hold such an examination to that end. Special Term dismissed the petition, the Appellate Division affirmed, and the plaintiff has now brought.the case here.

In February, 1941, Dr. Conboy was designated as Acting Chief Medical Examiner by the board of education. He was then an examining physician, Grade 4, and was receiving an annual salary of $4,000 for part-time service. Grade 4 embraces annual salaries of $3,000 and over ” and is the highest competitive grade of medical civil service in the city of New York.

In March, 1942, the board of education adopted a plan for reorganization of its medical staff. It was thereby provided: (a) There shall be a Chief Medical Examiner who, subject to the direction and supervision of the Superintendent of Schools, shall supervise the Medical Staff,- together with all matters under the jurisdiction of said Staff, and all persons employed therein, (b) Applicants for the position of Chief Medical Examiner shall meet all the qualifications that may be, required by the Municipal Civil Service Commission with the added qualification that the applicant shall be recognized in the medical profession in the City and State of New STork as outstanding as a general internist and he shall not he a psychiatrist or other specialist, (c) The Chief Medical Examiner shall be appointed for a probationary period of three (3) years and he shall hold his position thereafter with permanent tenure as provided by law. Such appointment shall be made from names certified by the Municipal Civil Service Commission from an eligible list established by a competitive examination, (d) The Chief Medical Examiner shall render full-time service for the Board of Education and shall engage in no private practice, except that he shall be required to render continuous, regular ward service as consultant internist in a public hospital of Grade A standing in the City of New York.”

Since the war emergency then seemed to stand iñ the way of a sound permanent appointment to the new position of chief medical examiner, the board of education in November, 1942, assigned the duties thereof to Dr. Conboy on a provisional basis at an annual salary of $7,500 and also granted to him a leave of absence without pay from his civil service position of examining physician, Grade 4. This arrangement continued until July, 1946, when the board of its own motion abolished the new position of chief medical examiner, restored Dr. Conboy to his civil service position of examining physician, Grade 4, and put him in charge of the medical staff at an annual salary of $7,500 — the same salary that had been paid to him during the period of his provisional service as chief medical examiner.

There can be no question of the power of the board of education to abolish the position of chief medical examiner. Nor was the board necessarily wrong in raising Dr. Conboy’s salary, for no maximum salary grade was attached to his civil service position of examining physician, Grade 4. But competitive examination for the position of chief medical examiner was practicable, as all the parties are agreed; and, that being so, we are brought to the question whether the employment of Dr. Conboy as medical examiner in charge of the medical staff of the board of education was a “ promotion ” within the meaning of the civil service principle of the State Constitution (art. Y, § 6) which clearly requires all promotions as well as all appointments to be made for merit and fitness after determination thereof by competitive examination, unless such an examination would be futile. (See Hale v. Worstell, 185 N. Y. 247, 252-253. Cf. Matter of McNamara v. Holling, 282 N. Y. 109.)

The duties now being performed by Dr. Conboy are the exceptional duties that had been laid down by the board of education for its former position of chief medical examiner, that is to say, supervision of the departmental medical staff and of all its affairs and employees. Moreover, the salary paid to Dr. Conboy for this service is nearly twice as much as that which he had previously received in his civil service position of examining physician, Grade 4. Such an advance in income and in professional responsibility and prestige is certainly a “ promotion ” in every fair sense of that word. The board of education should, therefore, be directed to stop its employment of Dr. Conboy as medical examiner in charge" of its medical staff and should be enjoined from assigning the duties of that position to anyone except a person appointed thereto from an eligible list established through a competitive examination conducted pursuant to the Civil Service Law.

Two lesser issues are still to be noticed. (1) The petitioner did not seek review of any determination made by the board of education,- rather, his purpose was “ to compel performance of a duty specifically enjoined by law ”. Hence the present proceeding was not barred by the four months’ limitation defined by section 1286 of the Civil PractiQe Act, which, in the case of such a proceeding, does not (apart from loches) commence to run until “ the respondent’s refusal, upon the demand of the petitioner * # * to perform his duty ”. . (Cf. Matter of O’Connell v. Kern, 287 N. Y. 297, 301.) (2) Dr. Conboy is neither an indispensable nor a conditionally necessary party herein (see Matter of Waters v. Buck, 265 App. Div. 344, affd. 290 N. Y. 840).

The orders should be reversed and the matter remitted to Special Term for further proceedings not inconsistent with this opinion, with costs to the petitioner-appellant in all courts.

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

Orders reversed, etc.'


author: Lewis, J.

text:
    Josef De Wald, Appellant, v. William R. Seidenberg et al., Individually and as Trustees of the Estate of Jacob Bookman, Deceased, Respondents, et al., Defendants.
    Argued March 4, 1948;
    decided April 22, 1948.

      Samuel Spevack, Bernard Meyerson and Irving R. Rosenthal for appellant.
    The uncontradicted testimony of all parties definitely proved that defendant superintendent used an excess of zeal while engaged in the respondents’ business, and, consequently, the reversal of the judgment and dismissal of the complaint by the Appellate Division was error. (Jones v. Weigand, 134 App. Div. 644; Rounds v. D. L. & W. R. R. Co., 64 N. Y. 129; Ochsenbein v. Shapely, 85 N. Y. 214; Mott v. Consumers’ Ice Co., 73 N. Y. 543; Cohen v. Dry Dock East Broadway & Battery R. R. Co., 69 N. Y. 170; Osipoff v. City of New York, 286 N. Y. 422; Becker v. Borck, 157 N. Y. S. 505; Doscher v. Superior Fire Proof Door & Sash Co., 221 App. Div. 63; Kurland v. Roche, 165 N. Y. S. 807; Buck v. Standard Oil Co. of N. Y., 224 App. Div. 299, 249 N. Y. 595; Curran v. Buckpitt, 225 App. Div. 380; Muller v. Hillenbrand, 227 N. Y. 448; Girvin v. N. Y. C. & H. R. R. R. Co., 166 N. Y. 289; Katz v. Lutz, 176 App. Div. 460.)

      Walter L. Glenney for respondents.
    The alleged assault by the superintendent was not an act done in furtherance of the business of the respondents and was not incidental to the performance of the duties entrusted to him by ■ the respondents. (Oneta v. Tocci Co., 271 App. Div. 681, 297 N. Y. 629; Isaacs v. Third Ave. R. R. Co., 47 N. Y. 122; Mali v. Lord, 39 N. Y. 381; Muller v. Hillenbrand, 227 N. Y. 448; Trebitsch v. Goelet Leasing Co., 226 App. Div. 567, 252 N. Y. 554; Zucker v. Lannin Realty Co., 217 App. Div. 487; Kaiser v. McLean, 20 App. Div. 326; Taylor v. Erie R. R. Co., 268 N. Y. 711.)
   Lewis, J.

In this action a jury at Trial Term awarded damages against the owners of an apartment house and their superintendent for an assault committed by the superintendent upon the plaintiff, a tenant. Following the verdict the Trial Justice granted a motion by the defendant-owners for judgment over against their superintendent for the amount of the judgment entered against them. The superintendent did not appeal from the resulting judgment. Upon appeal by the owners to the Appellate Division the judgment was reversed on the law and the facts and the complaint was dismissed on the law upon the ground that plaintiff’s evidence was insufficient to establish his cause of action. The present appeal is by the plaintiff from the judgment entered upon the order of the Appellate Division.

In those circumstances we shall consider the facts in the light most favorable to the plaintiff-appellant. In the phase of our inquiry which requires us to determine whether the facts proved constitute a cause of action, we shall give to the plaintiff the benefit of every favorable inference which can reasonably be drawn therefrom. (Osipoff v. City of New York, 286 N. Y. 422, 425; Faber v. City of New York, 213 N. Y. 411, 414.)

The plaintiff is a tenant in an apartment house in New York City of which the defendants-respondents, Seidenberg and Book-man, are owners and the defendant Kilkenny is the superintendent. There is evidence that there had been occasions when a maid in plaintiff’s employ had thrown water and articles of waste from a window which opened upon a courtyard. Those occurrences were in violation of a rule prescribed by the owners to regulate the use of the apartments, of which rule the plaintiff had notice. In the enforcement of that rule, which the owners required of the superintendent, he, had warned the plaintiff’s maid not to repeat her offenses. Despite such warning there came a day when water thrown from a window in plaintiff’s apartment fell apon and drenched the superintendent as he was about to enter a basement door directly below. Brief but heated remonstrances then went up from the superintendent and curt retorts came down from the plaintiff’s maid which in character were so abusive as to suggest their omission here. Fifteen minutes later the superintendent — in clothes still wet — appeared at the door of plaintiff’s apartment and asked of the maid that he be permitted to talk with her employer. When the plaintiff appeared and had been told that water had again been thrown from a window of his apartment, he stated that he had instructed the maid never to throw il even a match ” into the courtyard. Later — having questioned the maid — the plaintiff denied that she had thrown the water of which complaint was being made. When the superintendent accused the maid of being a liar ” the plaintiff returned the accusation in kind. Then followed an exchange of harsh words which led to a bodily encounter in which blows were struck — as to which each participant testified that the other was the aggressor. In the melee which followed the plaintiff was pushed by the superintendent backward along a hallway to the top of a short flight of stairs from which point he plunged downward and sustained the personal injuries here in suit.

Upon the present appeal by the plaintiff our problem is narrowed to the inquiry whether there was any evidence which presented a question of fact as to whether the acts of the owners’ superintendent, of which the plaintiff complains, were within the scope of his employment and were done while he was engaged in furthering the owners’ interests.

Our examination of the record has disclosed evidence from which the jury could have found that the superintendent’s mission in going to the plaintiff ’s apartment was to advise the plaintiff of an infraction by his servant of a rule which the owners had required the superintendent to enforce. The record makes it clear, However, that as the conference progressed upon the subject which had brought them together, each conferee showed aggression in the battle of words in which they engaged and the fisticuffs which followed.

It is established law in this jurisdiction that — “The master who puts the servant in a place of trust or responsibility, or commits to. him the management of his business or the care of his property, is justly held responsible when the servant, through lack of judgment or discretion, or from infirmity of temper, or under the influence of passion aroused by the circumstances and the occasion, goes beyond the strict line of his duty or authority, and inflicts an unjustifiable injury upon another.” (Cohen v. Dry Dock, East Broadway & Battery R. R. Co., 69 N. Y. 170, 173; Rounds v. Delaware, Lackawanna & Western R. R. Co., 64 N. Y. 129, 136; Mott v. Consumers' Ice Co., 73 N. Y. 543, 547; Palmeri v. Manhattan Ry. Co., 133 N. Y. 261, 264; Buck v. Standard Oil Co. of N. Y., 224 App. Div. 299, affd. 249 N. Y. 595; Osipoff v. City of New York, supra, pp. 431-432.)

Upon this record we cannot say, as a matter of law, that there is no evidence of zeal exerted by the superintendent — unwarranted by the circumstances and beyond the strict line of his duty — to enforce a rule promulgated by his employers. As we view the evidence it presented a question of fact whether the superintendent’s act, of which complaint is made, was done while he was acting within the scope of his employment and while he was lawfully engaged in the business, of his employers and in furtherance of their interests.

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

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

Judgments reversed, eta


author: Desmond, J.

text:
    Watchtower Bible & Tract Society, Inc., et al., Appellants, v. Metropolitan Life Insurance Company, Respondent.
    Argued March 18, 1948;
    decided April 22, 1948.

      Hayden G. Covington for appellants.
    I. The regulation is void because it abridges freedoms of speech, press and worship, contrary to the State and Federal Constitutions. (City of Blue Island v. Kozul, 379 Ill. 511; Cantwell v. Connecticut, 310 U. S. 296; Saidel v. Village of Tupper Lake, 254 App. Div. 22; Fisher Co. v. Woods, 187 N. Y. 90; People ex rel. Tyroler v. Warden of Prison, 157 N. Y. 116; Colon v. Fisk, 153 N. Y. 188; Schneider v. New Jersey, 308 U. S. 147; Thornhill v. Alabama, 310 U. S. 88.) II. The regulation should be considered as an ordinance of a municipality, rather than as a covenant between landlord and tenant, in determining the test to be applied. (Bloomfield v. Charter Oak Bank, 121 U. S. 121; Williams v. Eggleston, 170 U. S. 304; Jamison v. Texas, 318 U. S. 413; Marsh v. Alabama, 326 U. S. 501; Lovell v. Griffin, 303 U. S. 444; Jamison v. Texas, 318 U. S. 413; Martin v. Struthers, 319 U. S. 141; Thousand Island Park Assn. v. Tucker, 173 N. Y. 203; Cummings v. Missouri, 4 Wall. 277.) III. Door-to-door preaching and distribution of bible literature is protected by the Constitutions. (Murdock v. Pennsylvania, 319 U. S. 105; Schneider v. New Jersey, 308 U. S. 147; Lovell v. Griffin, 303 U. S. 444; Martin v. Struthers, 319 U. S. 141.) IV. The exercise of civil rights from door to door among tenants living in multiple dwellings or apartments is as strongly protected against abridgment by the Constitution as is the exercise of the same activity from door to door among tenants of single dwellings. (Kitching v. Brown, 180 N. Y. 414 ; Hague
      v. C. I. O., 307 U. S. 496; Jamison v. Texas, 318 U. S. 413; Marsh v. Alabama, 326 U. S. 501; Tucker v. Texas, 326 U. S. 517; Schneider v. New Jersey, 308 U. S. 147; Cantwell v. Connecticut, 310 U. S. 296; Largent v. Texas, 318 U. S. 418; Murdock v. Pennsylvania, 319 U. S. 105; Follett v. Town of McCormick, 321 U. S. 537; People v. Barber, 289 N. Y. 378.) V. The regulation abridges said fundamental freedoms because it expressly prohibits such door-to-door calls in Parkchester. (Jones v. Opelika, 319 U. S. 103; Jamison v. Texas, 318 U. S. 413; Schneider v. New Jersey, 308 U. S. 147; Thornhill v. Alabama, 310 U. S. 88; Carlson v. California, 310 U. S. 106; Near v. Minnesota, 283 U. S. 697.) VI. The regulation abridges fundamental freedoms because it imposes a burden upon personal visits by missionaries at homes of the tenants, which are protected by the Constitutions, and also implicitly prohibits door-to-door calls in Parkchester. (Town of Green River v. Fuller Brush Co., 65 F. 2d 112; People v. Bohnke, 287 N. Y. 154.) VII. The regulation is unreasonable, arbitrary and capricious and is beyond the authority conferred by law and through the lease agreement with respondent’s tenants. (Thousand Island Park Assn. v. Tucker, 173 N. Y. 203; People v. Barber, 289 N. Y. 378; Massachusetts v. Richardson, 313 Mass. 632; Williams v. Lubbering, 73 N. J. L. 317.)

      Stuart N. Updike, James W. Rodgers, John R. Schoemer, Jr., and Philip T. Seymour for respondent.
    I. The provisions of the State and Federal Constitutions relating to the freedoms of speech, press and worship are limitations upon the powers of the State and Federal Governments exclusively and are not applicable to the policies or actions of a private corporation. (United States v. Cruikshank, 92 U. S. 542; De Jong v. Oregon, 299 U. S. 353; West Virginia St. Bd. of Education v. Barnette, 319 U. S. 624; Murdock v. Pennsylvania, 319 U. S. 105; Cantwell v. Connecticut, 310 U. S. 296; Schneider v. New Jersey, 308 U. S. 147; Lovell v. Griffin, 303 U. S. 444; Matter of Virginia, 100 U. S. 339; Corrigan v. Buckley, 271 U. S. 323; Hodges v. United States, 203 U. S. 1; Bridges v. California, 314 U. S. 252; Milk Wagon Drivers Union v. Meadowmoor Dairies, Inc., 312 U. S. 287; Matter of Kempf, 252 App. Div. 28, 278 N. Y. 613.) II. Defendant is a private corporation operating a privote project. It is vested with no governmental powers and it exercises none. (Trustees of Dartmouth College v. Woodward, 4 Wheat. 518; Matter of Murray v. LaGuardia, 291 N. Y. 320.) III. The decisions in Marsh v. Alabama (326 U. S. 501) and Tucker v. Texas (326 U. S. 517) are not inconsistent with the judgments below. Judged by any standards, constitutional or otherwise, the action of defendant in .conditionally excluding Jehovah’s Witnesses from the interior passageways of its apartment houses does not violate any of their legal rights. (Hague v. C. I. O., 307 U. S. 496; Jamison v. Texas, 318 U. S. 413; Schneider v. New Jersey, 308 U. S. 147; People v. Bohnke, 287 N. Y. 154; Follett v. McCormick, 321 U. S. 573; Murdock v. Pennsylvania, 319 U. S. 105; Douglas v. Jeannette, 319 U. S. 157; Largent v. Texas, 318 U. S. 418.) IV. Jehovah’s Witnesses were not invitees of the Parkchester tenants, either expressly or by implication. Defendant’s regulation excluding them from the apartment buildings unless invited, is authorized by law, by defendant’s leases with its tenants and is reasonable. Entries by Jehovah’s Witnesses after defendant’s notification to them to stay out were trespasses. (Wood v. Snider, 187 N. Y. 28; Adams v. Freeman, 12 Johns. 408; Brendlin v. Beers, 144 App. Div. 403.) V. The entries of Jehovah’s Witnesses are conditionally prohibited by defendant’s regulation adopted pursuant to lease authority from the tenants. These entries after notice of the regulation and without compliance with its requirements were trespasses. (Alabama Fuel & Iron Co. v. Courson, 212 Ala. 573; Thousand Island Park Assn. v. Tucker, 173 N. Y. 203) Federal Waste Paper Corp. v. Garment Center Capitol, 268 App. Div. 230, 294 N. Y. 714.)
   Desmond, J.

Defendant, as a private proprietor, owns in the borough of The Bronx in New York City, a residential community called Parkchester, which is said to be the largest of its kind in the world, covering 129 acres and housing 12,000 family units made up of some 35,000 people, in 171 adjoining and interrelated ” apartment houses. These buildings are seven to twelve stories high. Through Parkchester run two public highways and in it are a number of private streets, lanes and parks, as well as shops, offices, and automobile service stations, the latter operated by tenants of defendant. All of the apartments are held under written leases from defendant. Bach such apartment lease hinds the tenant to comply with such rules and regulations* as the landlord shall from time to time deem necessary for the safety and care of the buildings, “ and the preservation of good order therein, as well as the comfort, quiet, and convenience of other occupants of the building.” Defendant’s written regulation which appellant here attacks has been in force since 1946, and a quite similar written regulation was in existence since 1944, before which, from the opening of Parkchester in 1940, there had been an oral ruling of the same tenor. The current regulation is in full as follows: “ No person or group of persons shall enter any apartment building in the Parkchester development for the purpose of canvassing or of vending, peddling, or soliciting orders for any merchandise, device, book, periodical, pamphlet, circular, or for any printed, mimeographed, multigraphed or typewritten matter whatsoever; nor for the purpose of soliciting alms, donations, or a subscription or a contribution to any church, religious, charitable, or public institution or organization whatsoever ; nor for the purpose of distributing any handbill, pamphlet, circular, tract, book, booklet, notice, or advertising-matter; nor for the purpose of playing any phonograph or musical instruments in said apartment houses in connection with such canvassing, vending, peddling, solicitation or distribution ; provided, however, that such canvassing, vending, peddling, soliciting or distribution may be made with the consent of the Manager of the development or may be made within the apartment of any tenant if the prior written consent or invitation of such tenant shall have previously been furnished or exhibited to the Manager of the development.”

Plaintiff Watchtower Bible and Tract Society, Inc., is the incorporated governing body of a religious group known as Jehovah’s Witnesses, the ministers of which group make it their practice, besides handing out leaflets on the streets, to go from door to door distributing literature, and, who, by oral persuasions, or by the use of portable phonographs, seek thus to interest people in the religious beliefs of Jehovah’s Witnesses. The individual plaintiffs are three of such ministers. This suit was brought to have it adjudged that defendant’s regulation, quoted above, infringes the constitutional rights of plaintiffs, and that they have an absolute right, despite the regulation, to go at will through any or all the apartment buildings of Parkchester, to propagate their religious beliefs.

It was established by proof on the trial, and found by the Trial Justice, that teams of Jehovah’s Witnesses made sporadic visits to these apartment buildings from 1941 to 1944, and that, beginning in the latter year, the visits took place weekly, or several times a month. Some tenants seem to have accepted the literature willingly, but a number of others made, complaints to defendant, which instructed its guards to prevent the Witnesses from going into or through the buildings. Iti March, 1946, defendant sent to each of its tenants a questionnaire calling for an answer as to whether that tenant wished to be visited by Jehovah’s Witnesses. Tip to the time of commencement of this action about 8,000 replies had come in, and during the pendency of the cause 3,400 more were filed. Of all the tenants who answered, about 11,000 said they did not want the visits continued, and only about thirty said ‘1 yes ’ ’. Defendant submitted all this data to plaintiffs and offered to allow" a continuation of the Witnesses’ visits to the thirty tenants who desired them. After the present lawsuit had been started, a large group of Jehovah’s Witnesses, more than 700 in all, came to Parkchester and insisted on going, through the interior passageways of the buildings, to every apartment to present each tenant with a letter signed by the corporate plaintiff, in which was contained a request that the tenant certify to defendant that he did not object to the visits. Of the approximately. 8,000 persons thus summoned to their doorways in the apartment houses, a good many complained to defendant’s “ Protective Division ”, and a few testified on the trial as to the persistency of the demands and the inconvenience suffered by the tenants. More than 1,700 signatures were gotten by plaintiffs, about 1,500 being signatures of tenants. Some of those who thus signed testified at the. trial that they had done so out of courtesy only, or to be free of the importunities of the callers.

On the facts above summarized, the Trial Justice held that defendant’s. regulation was reasonable and valid and not in violation of any rights of plaintiffs, pointing out that no case has held “ that Jehovah’s Witnesses, or others having similar pursuits, have a constitutional right to enter within an apartment house or multiple-dwelling house, against the wishes of its.owner or occupants.” (188 Misc. 978, 986.) Judgment was entered, dismissing the complaint and affirmatively declaring that defendant’s regulation is reasonable and valid, that the regulation has been lawfully and properly applied against plaintiffs, that the regulation leaves to each tenant the right to determine for himself whether he wishes to be called upon by Jehovah’s Witnesses, and that the Witnesses who enter the Parkchester apartment houses in contravention of the regulation are trespassers whom defendant has the right to remove, it being expressly adjudged, however, that nothing contained in the decree was to be construed so as to prevent visits by the Witnesses to the apartments of those tenants who have expressed, or hereafter may express, willingness to receive such callers. The Appellate Division, on plaintiffs’ appeal, unanimously affirmed the judgment, and plaintiffs appeal to this court as of right (Civ. Prac. Act, § 588, subd. 1, par. a), since there is directly involved'the construction of the Constitutions of this State and of the United States (U. S. Const., 1st and 14th Amendts.; N. Y. Const., art. I, §§ 3, 8).

Though we are in full agreement with the holdings of the Trial Justice as expressed in his written decision, we write this opinion to make further comment on certain United States Supreme Court decisions, pressed on us by appellants, and a decision of our own, which is of some pertinence.

In May, 1943, the Supreme Court decided Martin v. Struthers (319 U. S. 141). That decision struck down as invalid a municipal ordinance which absolutely forbade any person to knock on a door, ring a doorbell or otherwise summon to the door the occupants of any dwelling for the purpose of distributing to those occupants any handbills or circulars (regardless of the householder’s wishes). Appellant Martin, a Jehovah’s Witness, was convicted and fined for violating the ordinance in that she had knocked at a Struthersville door for the purpose of handing out an invitation or leaflet advertising a religious meeting of her faith. The Supreme Court held that this prohibitory ordinance, so applied, violated the constitutional rights, under the First and Fourteenth Amendments, of those desiring to distribute such literature, and those desiring to receive it. In a footnote to the Martin v. Struthers opinion, there is a reference (319 U. S. at p. 148) to our case of People v. Bohnke (287 N. Y. 154) in which the Supreme Court had, on April 13, 1942, denied a petition for a writ of certiorari (316 U. S. 667, rehearing denied 316 U. S. 713). Appellants here insist that the Bohnke decision (supra) of this court is in conflict with Martin v. Srubbers (supra) and similar cases, and, particularly, that the rule of the Bohnke case has been (sub silentio and despite the denial of certiorari) overruled or disapproved by two more recent decisions, both announced on January 7,1946: Marsh v. Alabama (326 U. S. 501) and Tucker v. Texas (326 U. S. 517).

People v. Bohnke (supra, p. 157) aErmed the conviction of a member of plaintiff’s group, for violating a village ordinance which provided, among other things, that, without the consent of the occupant, no person should enter upon private residential property for the purpose u of distributing any handbill, pamphlet, tract, notice or advertising matter ’’, there being an express exception in favor of those who had resided or maintained a business place in the village for six months. Bohnke, an authorized minister-of the Jehovah’s Witnesses’ religion, circulated religious pamphlets from door to door in the village, without previous consent by any householder. We held the ordinance valid, with this comment (pp. 158-159): It does not prohibit pamphleteering. It regulates pamphlet distribution in private, not public, places, and gives no public oEcer any power of censoring the pamphlets or licensing, or refusing to license, their distribution. (See Cox v. New Hampshire, 312 U. S. 569, 574; People v. Kuc, 272 N. Y. 72, 74; Town of Green River v. Fuller Brush Co., 65 Fed. Rep. [2d] 112.) It does not infringe any of appellants’ rights to the free exercise of their religion since it merely regulates their entry onto private property for the purpose of promoting their religious beliefs. It does leave to the pleasure of the individual householder the determination of whether or not pamphlets may be circulated on that householder’s premises, but this infringes no right of appellants, since the Constitution does not guarantee them any right to go freely onto private property for such purposes.”

By Marsh v. Alabama (supra) there was reversed the conviction of another Jehovah’s Witness. The Alabama courts had found him guilty of violating an Alabama trespass statute which made it a crime to enter or remain on the premises of another after having been warned not to do so. Marsh’s activities all took place on a sidewalk in Chickasaw, Alabama, a ‘ company town ” wholly owned by a shipbuilding corporation. The sidewalk on which Marsh stood as he passed out his pamphlets was thus owned by the corporation, but it was, in appearance and use, an ordinary public sidewalk in front of retail stores. Justice Black’s opinion noted that Lovell v. Griffin (303 U. S. 444) and other cases (see People v. Barber, 289 N. Y. 378) had made it plain that a municipal corporation cannot ban the distribution of literature on its streets, sidewalks and public places ’ ’. The same rule, for the same reasons, held the Supreme Court, applied to the sidewalks of Chickasaw, which differed from similar sidewalks in other municipalities, only in that in Chickasaw title to the sidewalks was in a private corporation.

Tucker v. Texas (supra) was a companion case to Marsh v. Alabama (supra), differing only in the circumstance that Hondo Navigation Village in Texas, was owned in its entirety, not by a business corporation, but the United States of America. “ According to all indications ”, the Supreme Court remarked, the village was freely accessible and open to the public and had the characteristics of a typical American town.” (Pp. 518-519.) The Federal Public Housing Authority’s manager in charge of the place had “ ordered appellant to discontinue all religious activities in the village ” and on appellant’s refusal, he was arrested, tried and convicted under a section of the Texas Penal Code which makes it an offense for any peddler or hawker of goods or merchandise ” willfully to refuse to leave premises after having been notified to do so by the owner or possessor thereof — a so-called trespass after warning ” statute. While not specifically so stated in the opinion, it seems clear that Tucker’s preaching and leaflet distribution was in the streets or sidewalks of the village, or from door to door, and not inside any residential building.

Both the Marsh and the Tucker cases (supra) seem to rest on the doctrine so clearly stated in Hague v. C.I.O. (307 U. S. 496, at p. 515): “ Wherever the title of streets and parks may rest, they have immemorially been held in trust for the use' of the public and, time out of mind, have been used for purposes of assembly, communicating thoughts between citizens, and discussing public questions. Such use of the streets and public places has, from ancient times, been a part of the privileges, immunities, rights, and liberties of citizens.” A narrow inner hallway on an upper floor of an apartment house is hardly an appropriate place at which to demand the free exercise of those ancient rights.

Our purpose in thus briefly analyzing those decisions is to show that they do not (nor do any others of which we know) go nearly so far as appellants would have us go here. Parkehester, like Chickasaw, Alabama, and the Federal housing community in Texas, is privately owned, but there the similarity as to facts ends. It is undisputed that this defendant has never sought in any way to limit the Witnesses’ activities on the streets or sidewalks of Parkchester, some of which are privately, and some publicly, owned. The distribution which this defendant’s regulation inhibits was not on streets, sidewalks or other public or quasi-public places, but inside of, and into, the several floors and inner hallways of multiple dwellings. Moreover, defendant’s regulation did not absolutely debar these ministers from their visits in the buildings and their persuasions therein, since it allowed them, whenever a tenant so desired, and expressed his desire. We think the Bohnke case (supra) is still the law and leaves valid the regulation of door-to-door calls along public streets. But, regardless of the Bohnke ruling, no case we know of extends the reach of the Bill of Bights so far as to proscribe the reasonable regulation, by an owner, of conduct inside his multiple dwelling. So holding, we need not examine the larger question of whether the pertinent clauses of the Constitutions have anything to do with rules made by am: dwelling proprietors, governing conduct inside their edifices.

Turning to another question, we hold that this sort of regulation, as here written and as applied to plaintiffs, was not unreasonable (see Brendlin v. Beers, 144 App. Div. 403). Neither Thousand Island Park Assn. v. Tucker (173 N. Y. 203) nor Federal Waste Paper Corp. v. Garment Center Capitol, Inc. (294 N. Y. 714) holds otherwise. Those cases dealt with wholly different problems. In each of them the right enforced was that of a business invitee of the tenants to enter the property for the tenants’ use and convenience, as against a ban imposed by the owner, for the owner’s own profit.

The judgment should be affirmed, with costs.

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

Judgment affirmed.


text:
    In the Matter of the Claim of Walter M. Gramlich, Respondent, against Board of Education of the City of New York, Appellant. Workmen’s Compensation Board, Respondent.
    Argued January 14, 1948;
    decided April 22, 1948.

      John P. McGrath, Corporation Counsel (Stanley Buohsbaum and Seymour B. Quel of counsel), for appellant.
    I. Claimant was not an employee in the service of an employer whose principal business was that of conducting a hazardous employment. (Matter of Beeman v. Board of Education, 195 App. Div. 357, 231 N. Y. 624; Matter of Leahy v. City of New York, 285 N. Y. 443; Williams v. Hartshorn, 296 N. Y. 49; Matter of Griffin v. Cruikshank Co., 253 N. Y. 303; Matter of Glatzl v. Stumpp, 220 N. Y. 71; Matter of Balk v. Queen City Dairy Co., 184 App. Div. 631; Bailey v. School Dist. No. 5, 204 App. Div. 125; Matter of Dolan v. City of New York, 264 App. Div. 803, 289 N. Y. 663; Matter of Hayes v. City of New York, 256 App. Div. 111, 280 N. Y. 743.) II. Claimant was not engaged in a hazardous employment. (Matter of Dolan v. City of New York, 264 App. Div. 803, 289 N. Y. 663; Matter of Hayes v. City of New York, 256 App. Div. 111, 280 N. Y. 743.)

      Nathaniel L. .Goldstein, Attorney-General (Roy Wiedersum

    and Gilbert M. Landy of counsel), for respondent.
    I. The accidental injuries suffered by claimant came within the purview of the Workmen’s Compensation Law. (Matter of Griffin v. Cruikshank Co., 253 N. Y. 303; Matter of Baum v. Weldon, 294 N. Y. 464; Matter of Commissioner of Taxation & Finance v. Phillips, 283 N. Y. 673; Matter of Butler v. Hancock Life Ins. Co., 269 App. Div. 916, 295 N. Y. 987; Matter of Dispenza v. Hancock Life Ins. Co., 238 App. Div. 885; Matter of Brigham v. Allegany County, 263 App. Div. 458, 289 N. Y. 794; Matter of Kelleher v. City of New York, 253 App. Div. 850; Matter of Kaufman v. City of New York, 270 App. Div. 967; Matter of Whittley v. Kappie Motors, Inc., 270 App. Div. 970.) II. The employer carried on a hazardous employment, and claimant was employed therein. (Matter of Leahy v. City of New York, 285 N. Y. 443; Matter of Renouf v. N. Y. C. R. R. Co., 254 N. Y. 349; Matter of Europe v. Addison Amusements, Inc., 231 N. Y. 105; Matter of McNally v. Diamond Mills Paper Co., 223 N. Y. 83; Matter of Dose v. Moehle Lithographic Co., 221 N. Y. 401; Matter of Larsen v. Paine Drug Co., 218 N. Y. 252, 256; Matter of Schlesinger v. City of New York, 271 App. Div. 856.)
   Desmond, J.

At the time of his accident, claimant was a mechanical engineering draftsman, in the employ of appellant Board of Education of the City of New York, in the electrical division of its bureau of construction. Attempting to open a window in the employer’s office, claimant sustained injuries to his hand when the pane broke. There is no doubt that the injuries arose out of and in the course of his employment. Question is raised, however, as to whether the nature of his employment was such as to entitle him to an award of workmen’s compensation.

Claimant testified that his work was “ engineering ” in connection with the planning of electrical work on his employer’s school buildings. When additions were to be built onto existing buildings, he, in order “ to find out what the existing conditions in the buildings ” were, had to “ go out in the field ” to “ examine the existing electrical installations.” At times that involved going up on a stepladder, taking covers off electrical boxes, counting wires, following electrical circuits, and using pliers, a flashlight and a ruler. Claimant had held the same position with the board of education for about sixteen years before the accident, and during about ten of those years his trips into “ the field ’ ’ averaged thirty a year. For the five years before the accident, however, little or no actual construction work, old or new, had been done by the board, and so claimant’s duties during that period and at the time of his injury were all performed in his employer’s office. On that proof the compensation board decided in favor of claimant. It held, in an opinion, that claimant’s work involves the operation and maintenance of electrical equipment ” and made findings that he, at the time of the accident, was engaged in a hazardous occupation ”, also that his employer was engaged in a hazardous employment as enumerated in the Workmen’s Compensation Law ”, and that claimant’s employment was incidental thereto.” The Appellate Division unanimously affirmed, stating in its memorandum that claimant’s duties (draughting) when injured were, under the broad definition in subdivision 13 of section 2 of the act, sufficiently related to actually hazardous work to bring the claim under the act. We granted the Board of Education leave to appeal to this court.

In Matter of Leahy v. City of New York (285 N. Y. 443) we pointed out that group 17 of subdivision 1 of section 3 of the act, and subdivision 4 of section 2 thereof, read together, made workmen’s compensation available not only for employees of municipal corporations actually working at hazardous employments, but also for all the employees of any municipal corporation whose principal business is that of conducting a hazardous employment. In other words, as we there held: “ group 17 of section 3 of the Workmen’s Compensation Law makes the coverage of municipal employments co-extensive with that of the private employments covered by the law ” (285 N. Y. at p. 446). The present award, therefore, is valid if either of the two requirements thus stated in the Leahy opinion {supra) is here satisfied — that is, either if the board of education’s principal business is that of conducting a hazardous employment, or if claimant himself was in a hazardous employment, within the meaning of the law, when his hand was lacerated.

The board of education’s business ” is education and so . it cannot reasonably be held that claimant, as an employee of that hoard, was “ in the service of an employer whose principal business is that of carrying on or conducting a hazardous employment ” (Workmen’s Compensation Law, § 2, subd. 4; Matter of Beeman v. Board of Education, 195 App. Div. 357, affd. 231 N. Y. 624). This award, therefore, depends for its validity on the correctness of the compensation board’s finding, above referred to, that claimant himself “ was engaged in a hazardous occupation.” This court, in Matter of Griffin v. Cruikshank Co. (253 N. Y. 303, 305) carefully and precisely stated the settled rule that1 ‘ although the principal business of the employer was not a hazardous employment within the enumeration of the Workmen’s Compensation Law ”, nonetheless, a claimant-employee could have his award if he himself was engaged, when injured, “ in one of the hazardous employments so enumerated ”. Employments classified by the act as “ hazardous ” are listed in subdivision 1 of section 3 of the act, in twenty different groups. The Appellate Division’s memorandum here shows that court thought this claimant’s employment came within group 4, which includes: installation of electric light and power lines or appliances ”, and/or group 6, which lists: “ manufacture of electric fixtures ’ ’ and/or group 7, which includes: ‘ operation of electric light and power lines or appliances ”. Respondent suggests two other of section 3’s groups to which claimant’s job might be assigned: group 2, ‘1 care of buildings ’ ’, and group 5, laying of wires ”. Any argument that claimant’s work, which had to do with the.designing or planning of electrical wiring layouts, and included going out into “ the field ” when necessary in that connection, did not amount to manufacture “ construction ”, operation ” or installation ”, is answered by the definition of those terms found in subdivision 13 of section 2 of the Workmen’s Compensation Law. That subdivision reads: “ 13. ‘ Manufacture, ’ ‘ construction,’ ‘ operation ’ and ‘ installation ’ shall include ‘ repair,’ ‘ demolition,’ ‘ fabrication ’ and 1 alteration ’ and shall include all work done in connection with the repair of plants, buildings, grounds and approaches of all places where any of the hazardous employments are being carried on, operated or conducted.”

The fact that, on the day of the accident and for a long time theretofore, claimant had not been doing any of the more dangerous parts of Ms work, is of no consequence. The test is simply whether his “ employment ” (meaning his general work or occupation) can be found listed in section 3. Cases like Matter of Newman v. Newman (218 N. Y. 325) and Matter of Glatzl v. Stumpp (220 N. Y. 71) dealing with the Workmen’s Compensation Law before its 1916 amendments, are of historic interest only. In those days an injured workman, to get benefits, had to establish that his own employment and his employer’s business were both hazardous. The word employee ” (see L. 1914, ch. 41) then meant “ a person who is engaged in a hazardous employment in the service of an employer carrying on or conducting the same ”. The 1916 amendments put into subdivision 4 of section,2 the definition of “ employee ” that we find there now. As Judge Pound noted in Matter of Glatzl v. Stumpp (supra), which was governed by the 1914 law although decided after the 1916 change, the Legislature in 1916, changed the law so as to make the “ occupation ” of the employee the test of coverage, whether or not the master’s general business is a dangerous one and whether or not the injured worker, whose own general occupation is listed as hazardous ”, is doing, when hurt, work usually considered perilous. Whatever this court said to the contrary in Matter of Glatzl v. Stumpp (220 N. Y. at p. 74), had to do with special facts and a statute which was later radically changed. Since 1916, there has been applied in countless cases the rule of Matter of Dose v. Moehle Lithographic Co. (221 N. Y. 401), Matter of Krinsky v. Ward & Gow (193 App. Div. 557, affd. 231 N. Y. 525, affd. sub nom. Ward & Gow v. Krinsky, 259 U. S. 503), and Matter of Europe v. Addison Amusements, Inc. (231 N. Y. 105), that if the definition of employee ” in subdivision 4 of section 2 be satisfied, the injury, to be compensable, need not be from any hazard specially inherent in, or peculiar to, the job.

The order should be affirmed, with costs.

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

Order affirmed.