author: Lehman, Ch. J. Lewis, J.

text:
    In the Matter of John J. Kuhn, Appellant, against Thomas J. Curran, as Secretary of State of the State of New York, Respondent. In the Matter of John J. Kuhn, Appellant, against Rollin Browne, as Commissioner of Taxation and Finance of the State of New York, Respondent.
    Argued April 9, 1945;
    decided May 17, 1945.

      John W. Davis and Ferdinand I. Haber for appellant.
    The People of the State have reseryed the power to determine the number of judicial districts in the State. (People ex rel. Bolton v. Albertson, 55 N. Y. 50; Finn v. City of New York, 282 N. Y. 153; Constitution of 1846, art. VI, § 16; Constitution, art. VI, § 6, as amd. November 2, 1869; Revised Record 1894 Constitutional Convention.)

      Frederic White Shepard for Nassau Taxpayers League, amicus curiae in support of appellant’s position.
    I. The power to “ erect ” is not implied in the word “ alter ”. The history of our Constitution shows the construction of the word by our Constitutional Conventions and by the voters. (Constitution of 1821, art. V, § 5; Constitution of 1846, art. VI, § 4; New York State Constitutional Convention 1938, Revised Record Vol. I, pp. 178, 215, 168 and index; New York State Constitutional Convention Journal, documents 15, p. 64, and 16, pp. 63-64.) II. Legislative proceedings show that the construction adopted by Constitutional Convention delegates was concurred in by legislatures. (New York State Constitutional Convention Committee, 1938, vol. II, 466, 467.) III. Efforts to erect additional districts by constitutional means having failed, at least four attempts were made to accomplish the purpose by mere legislation. IV. Chapter 614 of the Laws of 1944 should be declared unconstitutional. (Browne v. City of New York, 213 App. Div. 206; People ex rel. Burby v. Howland, 155 N. Y. 270.) V. The Legislature, after 1905, abused its power to erect new districts when it had that power and sought to exercise it after the power had been taken away. VI. The Legislature is restrained by the Constitution from exercising plenary power over the judicial districts. (In re Thirty-fourth Street R. R. Co., 102 N. Y. 343.) VII. The construction of the Constitution for which we contend is confirmed by “ the settled practise of the years ”. (Story v. Craig, 231 N. Y. 33.)

      James H. Glavin, Jr., and Reginald C. Smith for Lawyers Association of Suffolk County, amicus curæ in support of appellant’s position.
    I. Chapter 617 of the Laws of 1944 is unconstitutional. (Studebaker v. Perry, 184 U. S. 258; Norwegian Nitrogen Co. v. U. S., 288 U. S. 294.) II. The legislation is not remedial or progressive.

      Nathaniel L. Goldstein, Attorney-General (Wendell P. Brown, Orrin G. Judd, John C. Crary, Jr., and John R. Davison of counsel), for respondents.
    I. Section 1, of article VI, of the Constitution reserves to the Legislature the power to change the number of judicial districts. The natural meaning of the language reserving to the Legislature power to alter the judicial districts includes authority to increase their number. (Matter of Wendell v. Lavin, 246 N. Y. 115; Matter of Stoughton v. Cohen, 281 N. Y. 343; Gibbons v. Ogden, 9 Wheat 1; People v.
      Sassovich, 29 Cal. 480; Attorney-General of Canada v. Attorney-General of Ontario, XX Ont. 222; Adams v. Shelbyville, 154 Ind. 467.) II. The historical development of section 1, article VI, sustains the existence of legislative power to increase the number of judicial districts. In Constitution of 1821, article V, § 5; L. 1823, ch. 182; Constitution of 1846, art. VI, §§ 4, 16.) III. The declared purpose of the present provision of section 1, article VI, was to relieve the Legislature from the restraint forbidding increase in the number of judicial districts. (Constitution, art. III, § 1; Oswego & Syracuse R. R. Co. v. State, 226 N. Y. 351.)

      Rowland L. Davis, Charles H. Gardner and D. Ormonde Ritchie for Suffolk County Bar Association, amicus curiæ in support of respondents’ position.
    I. The constitutionality of a statute is a judicial question. The court will give consideration to the origin, history and circumstances attending the adoption of the provision challenged. (Sweet v. City of Syracuse et al., 129 N. Y. 316.) II. The Legislature being supreme in its field, its acts are presumed to be in harmony with the fundamental law; and informed and mindful of its constitutional limitations. The person challenging the act carries the burden of satisfying the court to the contrary. (People ex rel. Henderson v. Supervisors, 147 N. Y. 1.) III. Words or language used are to be given their ordinary meaning. (Matter of Sherrill v. O’Brien, 188 N. Y. 185.)
   Lehman, Ch. J.

The petitioner, a resident and taxpayer in Nassau County, asks in these two proceedings for orders in the nature of mandamus directing the Secretary of State and the Commissioner of Taxation and Finance of the State of New York to disregard Chapter 617 of the Laws of 1944 ” and to discharge their official duties “ as if said statute had not been enacted ”. The challenged statute is entitled “ An Act to amend the judiciary law, in relation to altering the state into ten judicial districts of the state and providing for the number of justices in the second and tenth judicial districts and for additional stenographers and clerks in the tenth judicial district, as provided by article six, section one of the constitution ”. The purpose of the proceedings is to obtain an authoritative decision that under the Constitution of the State the Legislature has not been granted the power of “ altering the state into ten judicial districts ”. Mr. Justice Bergan at Special Term sustained the validity of the statute in a careful opinion, and dismissed the petitions on the merits. The petitioner has appealed to this court from the orders of Special Term pursuant to the provisions of subdivision 4 of section 588 of the Civil Practice Act.

The only question involved is whether the statute is valid under the provisions of the Constitution of the State. Section 1 of article VI of the Constitution provides, among other things, that: ‘ The existing judicial districts of the state are continued until changed as hereinafter provided. The supreme court shall consist of the justices now in office and their successors, together with such additional justices as may be authorized by law. The successors of said justices shall be chosen by the electors of their respective judicial districts. The legislature may alter the judicial districts once after every federal census or state enumeration, each district being bounded by county lines and thereupon re-apportion the justices to be thereafter elected in the districts so altered.” The effect of chapter 617 of the Laws of 1944, if valid, is to amend section 140 of the Judiciary Law so as to divide the State into ten judicial districts instead of nine, creating a tenth judicial district to consist of the counties of Nassau and Suffolk which have been part of the second judicial district; and by amendment of other sections of the Judiciary Law, to reapportion the justices to be hereafter elected in the second judicial district (as altered by the excision of the counties of Nassau and Suffolk) and in ■the newly created tenth judicial district; and to reapportion also the justices who were chosen by the electors of the second judicial district as it existed at the time the statute was enacted and whose terms- have not yet expired. The validity of the statute depends primarily upon whether the grant in the Constitution by the People of the State to its Legislature of power to “ alter ” the nine judicial districts of the State as “ continued ” by the Constitution until changed as hereinafter provided ” includes a power to establish additional judicial districts by withdrawal of territory from one or more existing judicial districts and integration of the territory withdrawn into one or more new districts.

In view of the importance to the public of an authoritative determination of that question at the present time, we do not pause to consider whether the question is presented in appropriate proceedings. Sufficient, at present, that a controversy exists between the parties to the proceedings immediately affecting them, and that all parties entitled to be heard in regard to the questions involved are here represented. In considering that question we note at the outset that-the Legislature by the Constitution is granted the power to alter the judicial districts ” and that the statute is entitled “ An Act to amend the judiciary law, in relation to altering the state into ten judicial districts The difference in language is unimportant if the power to “ alter the judicial districts ” includes the power to increase the number of districts, but it serves to define the legal question presented upon this appeal. The attempted division of the second judicial district as previously established certainly alters that district. The power of the Legislature to do that , is clear, but it is not so clear that the Legislature could then create a new district out of the counties removed from the second district and thus alter the state ” into an increased number of judicial districts. Alteration of the judicial districts of the State necessarily involves increase or decrease in the size of some districts. The Legislature has found implicit in the grant to it of the power to alter the judicial districts of the State, the power to establish new districts out of the territory withdrawn from existing districts.

Article VI of the Constitution relating to the “ Judiciary ” was adopted by vote of the People in November, 1925. The provisions of section 1 of that article relating to the judicial districts of the State and granting power to the Legislature to alter existing districts are derived, without change of language, from the Constitution of the State formulated by the Constitutional Convention of 1894 and then adopted by vote of the People. The provisions of that Constitution were in turn derived, but with some changes to which we shall refer hereafter, from earlier Constitutions. In construing the existing constitutional provisions, their derivation and history must be kept in mind.

The Constitution of 1821 provided in article V, section 5, that: ‘ ‘ The state shall be divided by law into a convenient number of circuits, not less than four nor exceeding eight, subject to alteration by the legislature from time to time as the public good may require * * * ” The power of “ alteration ” of the “ number of circuits ” granted by that Constitution included the powers to increase or decrease the number of circuits; but subject to the qualification that the number could not be less than four or more than eight. In the exercise of the power thus conferred upon it, the-Legislature enacted chapter 182 of the Laws of 1823, providing for eight circuits corresponding with the eight Senate districts of the State.

The judicial system thus established proved inadequate, but even though the Governors of the State in their annual messages repeatedly called attention to the need for reform to meet the demands of accumulated business and proposals for numerous amendments were introduced into the Legislature, none was adopted. See “ Problems Relating to Judicial Administration and Organization ” (Report of New York State Constitutional Convention Committee, 1938, Vol. IX, p. 36).

The Constitutional Convention of 1846 accordingly, after long debate, revised the judicial system of the State "and made fundamental changes in it. Among other things the judiciary article of the new Constitution provided:

“ Section 4. (Judicial districts). The state shall be divided into eight judicial districts, of which the city of New York shall be one; the others to be bounded by county lines, and to be compact and equal in population as nearly as may be. There shall be four justices of the supreme court in each district, and as many more in the district composed of the city of New York as may, from time to time, be authorized by law, but not to exceed in the whole such number, in proportion to its population, as shall be in conformity with the number of such judges in the residue of the state in proportion to its population ” (art. VI, § 4) and
“ Section 16. (Reorganization of judicial districts.) The legislature may reorganize the judicial districts at the first session after the return of every enumeration under this constitution, in the manner provided for in the fourth section of this article, and at no other time; and they may, at such session, increase or diminish the number of districts; but such increase or diminution shall not be more than one district at any one time. Each district shall have four justices of the supreme court; but no diminution of the districts shall have the effect to remove a judge from office.” (Art. VI, § 16.)

By these constitutional provisions, the power to reorganize the judicial districts ” was conferred upon the Legislature and coupled with it the express power to “ increase or diminish the number of districts ” by not more than one at any one time, but the Legislature was given only a rigidly limited power to increase the number of judges.

In the exercise of the powers thus conferred upon it, the Legislature by chapter 241 of the Laws of 1847 provided that: “ The state is hereby divided into eight judicial districts, pursuant to the provisions of the fourth section of the sixth article of the constitution, which districts shall be arranged as follows: * * * ” then specifying the counties included in each district. That statute is the precursor of section 140 of the Judiciary Law, and it is perhaps noteworthy that prior to the adoption of chapter 617 of the Laws of 1944 which is now challenged, there have been few changes in the boundaries of the judicial districts established in 1847. The report of the Board of Statutory Consolidation (1907) which formulated the Judiciary Law has, on page 31, the following note: “ L. 1847, Ch. 241, § 1, divided the state into eight judicial districts pursuant to the provisions of the Constitution of 1846. The boundaries of the first judicial district were established by L. 1906, Ch. 285. The second judicial district was divided into two districts, the second and ninth, by L. 1906, Ch. 294, § 1. The second district as thus established, consists of the counties of Richmond, Kings, Queens, Nassau and Suffolk. The other counties in the former second district, viz., Westchester, Putnam, Dutchess, Orange and Rockland, were established by said act as the ninth judicial district. The county of Schuyler was added to the sixth judicial district by L. 1857, Ch. 485, § 1.” (Report of Board of Statutory Consolidation, 1907, p. 3194.)

The power to “ increase ” the number of districts was expressly withheld from the Legislature by the Constitution of 1869, which provided: “ The existing judicial districts of the state are continued until changed pursuant to this section * • * . The legislature may alter the districts, without increasing the number, once after every enumeration, under this constitution, of the inhabitants of the state.” (Art. VI, § 6.) Thus in the Constitution of 1821 the people in express terms conferred upon the Legislature a limited power to increase or diminish ’ ’ the number of judicial circuits; in the Constitution of 1846 the People in express terms conferred upon the Legislature a limited power to increase or diminish ” the number of judicial districts; while in the Constitution of 1869 the power to increase the number was in express terms withheld. Perhaps it is not without significance that in three successive constitutional conventions prior to the Convention of 1894, the framers of constitutions to be submitted for approval to the People of the State found it advisable to clarify a power granted to the Legislature to “ alter ” or to “ reorganize ” or to “ change ” judicial circuits or districts by express provision that such power did or did not include the power to increase ” their number but never granted a power to increase or decrease the number without imposing some limitation upon the exercise of that power.

The Constitutional Convention of 1894 incorporated in the Judiciary Article of the Constitution, which was submitted to and approved by the People at the election held that year, the provisions of the Constitution of 1869 relating to the power of the Legislature to “ change ” or “ alter ” the judicial districts of the State, except that the words without increasing the number ” were omitted. (Art. VI, § 1.) Thus the question arises whether by the omission of the words without increasing the number ” the People of the State intended to grant to the Legislature a power to establish additional districts which the People had previously withheld.

Distinguished lawyers were members of the committee which drafted the Judiciary Article of the new Constitution and its chairman was the Honorable Elihu Root, who was, for many years, an unchallenged leader of the bar. The elimination by the committee of the qualifying words “ without increasing the. number ” from the grant of the power to alter the districts ”, at least suggests that the framers of the article intended that, if the People approved the proposed Constitution, the grant of the power to “ alter the districts ” should thereafter include the power to increase that number. The proposal, that the qualifying clause should be omitted from the grant, was introduced in printed form, bearing introductory number 277 and print number 279, entitled “ Proposed Constitutional Amendment to amend section six of the constitution so as to permit the legislature to increase the number of judicial districts ”, by Mr. Dickey, later a justice of the Supreme Court. The proposal was accepted by the Judiciary Committee and persuasive argument may be made that lawyers of distinction would not have approved the omission of the qualifying words from the grant of power to alter the judicial districts, unless by such omission they had intended to enlarge the grant. The omission of the qualifying words seems particularly significant because in formulating section 2 of article VI relating to the manner in which the judicial departments of the State shall be constituted, the Convention coupled the grant to the Legislature of power to alter the boundaries of the judicial departments ” with the express qualification “ but without increasing the number thereof ”.

We may not, however, construe the words of the Constitution in exactly the same manner as we would construe the words of a will or contract drafted by careful lawyers, or even a statute enacted by the Legislature. It is the approval of the People of the State which gives force to a provision of the Constitution drafted by the convention, and in construing the Constitution we seek the meaning which the words would convey to an intelligent, careful voter. A grant of an enlarged power by the People should not rest upon doubtful implication arising from the omission of a previous express limitation, at least unless it appears that the omission and its significance was called to the attention of the People. Here, there may be doubt as to whether the significance of the change was fully realized even by the members of the Convention.

The printed records of the Convention do not show that there was any discussion in the Convention of a proposal to eliminate the words without increasing the number ” and thus, perhaps to permit the Legislature to increase the number of judicial districts; indeed, the only reference to the proposal is contained in an explanatory statement relating to the Judiciary Article signed by Mr. Boot as Chairman of the Judiciary Committee. It is there stated that the proposed constitutional amendment “ No. 279 ” introduced by Mr. Dickey was included in the proposed Judiciary Article; but nowheres in any debate or in answer to any question concerning the effect of provisions of the article did Mr. Boot make any reference to a possible increase or decrease in the number of judicial districts. The absence of debate or comment suggests doubt whether the members of the Judiciary Committee and the members of the Convention intended to enlarge the legislative power in the premises by omission of an express limitation. That doubt is perhaps strengthened by the fact that two distinguished members of the Judiciary Committee had, as members of the Legislative Commission of 1890, recommended that the provisions of the Judiciary Article of the Constitution of 1869 relating to the alteration of judicial districts should remain unchanged.

Conflicting inferences may be drawn from such circumstances and doubt might still remain as to the scope of the power of the Legislature to “ alter ” the judicial districts, if our only guide were the proceedings of the Constitutional Convention of 1894 and the bare words of the Constitution there formulated and approved by the People at the next election. We find a better guide in the later pronouncements of the Legislature and of the People when, in the opinion of the Legislature, it became advisable to divide the second district and to establish a ninth district consisting of counties which previously were part of the second, district. The Legislature did not then assert that power to increase the number of judicial districts had been conferred upon it by the Constitution of 1894, but in 1905 asked the People of the State to approve an amendment to the Constitution, amending article VI, section 1, by adding a new paragraph to that section reading as follows: “ Section 1. * * * The legislature may, from time to time, increase the number of justices in any judicial district, except that the number of justices in the first and second district or in any of the districts into which the second district may be divided, shall not be increased to exceed one justice for each eighty thousand or fraction over forty thousand of the population thereof, as shown by the last state or federal census or enumeration, and except that the number of justices in any other district shall not be increased to exceed one justice for each sixty thousand or fraction over thirty-five thousand of the population thereof, as shown by the last state or federal census or enumeration. The legislature may erect out of the second judicial district, as now constituted, another judicial district and apportion the justices in office between districts and provide for the election of additional justices in the new district not exceeding the limit herein provided. ’ ’ That amendment was adopted.

A specific grant to the Legislature by the People in article VI, section 1, of power to erect out of the Second Judicial District as now constituted another judicial district ” is patently inconsistent with a construction of another part of the same section as a grant of plenary power to increase or decrease at will the number of judicial districts of the State. Attempted explanations of the submission by the Legislature to the People of the proposed amendment cannot change the fact that by mandate of the People the Legislature was given a specific power to erect “ another judicial district ” out of the existing second district, and that after that district was erected, the power of the Legislature to erect new districts was exhausted.

In the Report of the New York State Constitutional Convention Committee, 1938, the effect of the amendment adopted in 1905 is summarized as follows:

In 1905 an amendment to section 1 was adopted by the people. This amendment gave the Legislature two additional powers not theretofore possessed:
“ (1) The Legislature was authorized to increase the number of justices in any judicial district, on the basis of the population of the district. * * *
(2) The Legislature was authorised to create a new judicial district out of part of the second district.
“ By the Laws of 1906, chapter 294, section 1, Westchester, Putnam, Dutchess, Orange and Rockland counties were taken out of the second judicial district and made into a new judicial district known as the ninth.” (Vol. IX, p. 57. Italics are now supplied.)

Until the Judiciary Article (art. VI) of the Constitution now in effect was adopted in 1925, section 1 of article VI of the Constitution of 1894 as amended in 1905, including the provision conferring upon the Legislature specific power to create a single new judicial district, remained unchanged, though that power had been fully exercised. No contention is made that the elimination of the grant of a specific power, already exhausted, to create a single specified additional district indicates an intention to grant a broad power to create additional districts at will. The Legislature had been without power to increase the number of judicial districts since 1869. Possible doubt whether by the Constitution of 1894 the People conferred upon the Legislature such power was removed by the amendment of 1905 and certainly no new power was conferred by the amended article in 1925. We are not concerned whether a grant of such power by the People would facilitate efficient judicial administration. It has not been granted by the People in express terms and the People have indicated that it may not be read by implication into the grant of power “ to alter the judicial districts ” of the State.

The orders should be reversed and the proceedings remitted to the Special Term for the entry of orders not inconsistent with this opinion, without costs.

Lewis, J.

(dissenting). The statute about to be declared unconstitutional was enacted pursuant to article VI, § 1, of the State Constitution which provides in part: “ * * * The existing judicial districts of the state are continued until changed as hereinafter provided. * * * The legislature may alter the judicial districts once after every federal census or state enumeration, each district being bounded by county lines and thereupon re-apportion the justices to be thereafter elected in the districts so altered.” (Italics added.)

A majority' of the court have concluded that in its context the word “ alter ” may not be construed to mean increase, although a meaning commonly ascribed to that word is “To add to or diminish.” (3 C. J. S. 898; People v. Sassovich, 29 Cal. 480, 484; Kosidowski v. Milwaukee, 152 Wis. 223, 226.)

I believe that to read the phrase — “ The legislature may alter the judicial districts * * as granting permission to increase those districts is consonant with the historical development of the Judiciary Article. Passing earlier data it appears that when the delegates gathered for the Constitutional Convention of 1894 they found that, as to judicial districts then existing in the State, the Judiciary Article, as last amended in 1869, contained the restriction — “ The legislature may alter the districts without increasing the number, once after every ■enumeration, * * * ” (Italics added). In the course of the Convention’s deliberations a proposal (No. 279) was introduced to amend the Judiciary Article by striking out the words without increasing the number ” (which followed the word “ alter ”). The purpose of the amendment, as declared in the proposal was — * * * to permit the legislature to increase the number of judicial districts.” (Revised Record Constitutional Convention, 1894, Vol. 1, p. 641.) In the body of that proposal the “only amendment to the existing text was “ to strike out the words without increasing the number ’ * * *.” The proposal was adopted by the Judiciary Committee. Subsequently, in a written statement explanatory of the revision of the entire Judiciary Article recommended by the Judiciary Committee, Mr. Elihu Root as chairman advised the Convention that proposal No. 279 was among those adopted and included in the proposed revised article. (Revised Record Constitutional Convention, 1894, Vol. II, p. 468.) As thus revised the Judiciary Article was adopted by the Convention of 1894 and subsequently in the same year was approved by the People of the State.

No amendment has since nullified the particular constitutional change thus set in motion by the introduction in the Convention of 1894 of proposed amendment No. 279, the declared purpose of which was “ to permit the legislature to increase the number of judicial districts.”

In that connection it is noteworthy that when that same Convention, by its revision of section 2 of the Judiciary Article, constituted four new judicial departments as an incident to the creation of the present four Appellate Divisions of the Supreme Court, it again employed the word “ alter ” when it granted to the Legislature power “ to alter the judicial departments.” In doing so, however — as if to emphasize that by its prior use of the word “ alter ” it had meant increase — the Convention expressly qualified the power thus granted to the Legislature by the phrase — without increasing the number thereof.”

Finally, I find it significant that although the 1925 amendment to the Judiciary Article omitted provisions which had been included in the amendment of 1905 relating to a local condition, it did not replace the restriction against increasing the number of judicial districts which the Convention of 1894 had eliminated.

These considerations lead me to the conclusion that article VI, section 1, afforded a constitutional basis for the enactment of chapter 617 of the Laws of 1944. Accordingly, I dissent and vote for affirmance.

Loughran, Conway and Dye, JJ., concur with Lehman, Ch. J.; Lewis, J., dissents in opinion in which Desmond and Thacher, JJ., concur.

Orders reversed, etc. [See 294 N. Y. 963.]


source: Caselaw Access Project

author: Desmond, J.

license: Public Domain

text:
    New York Life Insurance Company, Appellant, v. John O. Veit et al., as Executors of George E. Bradbrook, Deceased, Respondents.
    Submitted April 3, 1945;
    decided May 24, 1945.

      Earl S. MacArthur, Perlie P. Fallon and Ferdinand H. Pease for appellant.
    I. Fraud was alleged, proved and found by the jury under a charge to which no exception was taken. (Hadcock v. Osmer, 153 N. Y. 604; Buckin v. Long Island R. R. Co., 286 N. Y. 146; Berner v. Board of Education, 286 N. Y. 174; Imbrey v. Prudential Insurance Co., 286 N. Y. 434; Coursey v. Morton, 132 N. Y. 556; Frisbee v. Fitzsimons, 3 Hun 674; Fenn v. Curtis, 23 Hun 384; First Nat. Bank of Hempstead v. Level Club, Inc., 241 App. Div. 433; Ultramares Corp. v. Touche, 255 N. Y. 170; State Street Trust Co. v. Ernst, 278 N. Y. 104; Travelers Insurance Co. v. Katz, 263 App. Div. 797.) II. The Appellate Division erred in setting aside the verdict and directing that the complaint be dismissed. (Matter of McLaughlin, 263 App. Div. 595, 289 N. Y. 738; Schwartz v. Equitable Life Assur. Society of the U. S., 266 App. Div. 231, 291 N. Y. 770; New York Life Ins. Co. v. Guttenplan, 284 N. Y. 805; National Life Ins. Co. v. Minch, 53 N. Y. 144; Travelers Insurance Co. v. Katz, 263 App. Div. 797.) III. All essential elements of fraud were proved. (Ochs v. Woods, 221 N. Y. 335; Sager v. Friedman, 270 N. Y. 472; Karscher v. Dewald, 246 App. Div. 21; Hadcock v. Osmer, 153 N. Y. 604; Ultramares Corp. v. Touche, 255 N. Y. 170; Holloway v. Forsyth, 115 N. E. 483; Northwestern Life Ins. Co. v. Montgomery, 116 Ga. 799; Barry v. Legler, 39 F. 2d 297; Coursey v. Morton, 132 N. Y. 556; Coleman v. Burr et al., 93 N. Y. 17.) IV. The jury found that the insured had knowingly and willfully misrepresented her age to the plaintiff for the purpose of obtaining more insurance then she was entitled to at her age. The jury’s verdict was based upon documentary evidence and the testimony of members of the insured’s family. The facts are open to review ■ in the Court of Appeals. (Civ. Prac. Act, § 605; Harrington v. Harrington, 290 N. Y. 126; Hoose v. Drumm, 281 N. Y. 54; Wawrzonek v. Central Hudson O. & E. Corp., 276 N. Y. 412; Woods v. Sovereign Camp of Woodmen of the World, 186 App. Div. 59; Tokio Marine é Fire Insurance Co., Ltd., v. Fames, 127 Mise. 602; Restatement of the Law of Contracts, § 472, comment h; Haviland v. Willets et al., 141 N. Y. 35; Davis v. Beisinger, 120 App. Div. 766; Green v. Des Garets, 210 N. Y. 79; E. D. P. Dye Works v. Travelers Ins. Co., 234 N. Y. 441.) V. Plaintiff’s claim is not barred by the incontestable clause of the policy because of the presence ,of the age clause and because the incontestable clause does not extend to coverage. {Grenis v. Prudential Insurance Co., 154 Mise. 867; Murphy v. Travelers Insurance Co., 134 Mise. 238; Uterberg v. New York Life Ins. Co., 172 N. Y. S. 241; Columbian Nat. Life Ins. Co. v. Black, 35 F. 2d 571; Mates v. Penn. Mutual Life Ins. Co., 316 Mass. 303; Matter of Kaplan v. Peyser, 273 N. Y. 147; Ex parte Public Bank, 278 U. S. 101; Berkshire Life Ins. Co. v. Weinig, 290 N. Y. 6; Matter of Met. Life Ins. Co. v. Conway, 252 N. Y. 449.)

      Walter L. Post, Robert M. Post, Le Roy B. Iserman and Harlan S. Perrigo for respondents.
    I. The order of the Appellate Division dismissing the complaint should be affirmed. (Reno v. Bull, 226 N. Y. 546; Gambino v. Lucas & Co., 263 App. Div. 1054; Brackett v. Griswold, 112 N. Y. 454; Taylor v. Commercial Bank, 174 N. Y. 181; Trojanorsky v. Boccafogli, 214 App. Div. 216.) II. The court erred in excluding evidence of a change of position. (Matter of McLaughlin, 263 App. Div. 595.) III. The claim of fraud is barred by the incontestability clause. (Berkshire Life Ins. Co. v. Weinig, 290 N. Y. 6; Killian v. Metropolitan Life Insurance Co., 251 N. Y. 44.) IV. The contract of insurance having been fully executed by payment, the insurance company cannot recover any part of the sum paid. (Schwartz v. Equitable Life Assur. Society, 266 App. Div. 231, 291 N. Y. 770.)
   Desmond, J.

In 1923 Minnie A. Bradbrook applied to plaintiff for, and there was issued to her by plaintiff, a policy of insurance on her life, payable to her husband, George E. Brad-brook, in the face amount of $25,000. The written application signed by Mrs. Bradbrook stated that she had been born in 1877, and that she was forty-six years old at the time she applied. Her application contained language assuring plaintiff that all the answers therein were true and that she understood that plaintiff would believe them to be true and act upon them. So acting, plaintiff wrote the policy at the premium rate appropriate to the age declared in the application. The policy contained a provision, required by section 155, Insurance Law, to be inserted therein, that: “ if the age of the insured has been misstated, the amount payable hereunder shall be such as the premium paid would have purchased at the correct age ”.

Mrs. Bradbrook died on March 29, 1940, and a week later, on receipt of proofs of loss in due form, plaintiff paid to her husband the sum of $25,000 less the amount of a policy loan. In June, 1941, the insurance company brought this suit, against the husband, alleging in the complaint that Mrs. Bradbrook, when the policy was written in 1923 was not forty-six, as she had then reported, but sixty-two years old. It is not disputed that, for the premium paid, the amount of insurance available in 1923 to an applicant sixty-two years old would have been $15,077, instead of $25,000, and it is for the difference between those two amounts that plaintiff sues. (The husband died after suit was commenced, and his executors are now defendants-respondents.) Plaintiff specifically grounded its action on fraud. It alleged fraud, it went forward with evidence directed toward proving fraud, and it was on its request that the Trial Justice, without objection by defendants, submitted to the jury the issue of fact as to whether or not Mrs. Bradbrook had been guilty of fraudulently misstating her age. The jury found for plaintiff. The Appellate Division reversed on the law and facts, the majority of the justices being of the opinion that the evidence, taken most favorably to plaintiff, proved no more than “ a misstatement of age by the insured ” and that “ no fraud on her (insured’s) part in the procuring of the contract was established.” We do not so read the record. The jury had before it the testimony of Mrs. Bradbrook’s daughter and of her niece that she was actually sixteen years older than she represented herself in the application to be. Besides, plaintiff produced on the trial six different documents signed by Mrs. Bradbrook at various times between 1888 and 1900, in each of which she had sworn that her year of birth-was 1861, not 1877. On that showing the jury had the right to say, as it did say by its verdict, that the applicant had given a wrong answer as to her .age, that the untruth had been uttered knowingly and with intent that it be relied upon, and that it had in fact been relied upon. The insurer did not, by paying the face amount of the policy before it discovered the deception, waive its right thereafter to sue for a return of the overpayment. (See Mutual Life Ins. Co. of New York v. Wager, 27 Barb. 354, 367; National Life Ins. Co. v. Minch, 53 N. Y. 144, 151; Matter of McLaughlin, 289 N. Y. 738, 739.) The jury’s determination as to the facts was well grounded, and should not have been overturned on appeal.

Defendants, pointing out that more than seventeen years elapsed between the issuance of the policy and the bringing of this suit, argue that plaintiff’s claim of fraud is barred by the incontestability clause ” in the policy. That clause, which, like the misstatement of age clause above discussed, is mandatory in New York (Insurance Law, § 155), says that the policy “ shall be incontestable after two years from its date of issue except for non-payment of premium.” This court seems never to have decided whether or not such an incontestability clause operates to' prevent the enforcement, after two years, of an “ age adjustment ” or misstatement of age ” provision found with it in the same life insurance policy. Other courts in this State (see, for instance, Murphy v. Travelers’ Insurance Co., 134 Misc. 238; Grenis v. Prudential Insurance Co., 154 Misc. 867) have uniformly held, as have many courts elsewhere (see cases cited at 123 A. L. R. 1416 et seq., and 135 A. L. R. 446 et seq.) that an incontestability clause does'not bar the insurer from litigating the question of the insured’s true age in an effort to limit the policy’s coverage to the amount procurable' at insured’s correctly stated age, for the premium paid.' We think those holdings correct. The position taken here by the insurer involves no contest of, or attack on, the policy itself. It represents an effort by the insurer not to invalidate or cancel the policy but to confine the insurer’s liability, within the express terms of the policy, to the amount for which the policy would have been written had the truth been known. The incontestability clause forbids, after two years, such a contest as seeks to question the original or continued existence of the policy. It does not proMbit a contest the purpose of which is to demand the enforcement of a term of the policy itself. As Chief Judge Cabdozo wrote in Matter of Met. Life Ins. Co. v. Conway (252 N. Y. 449, 452), an incontestability clause “ is not a mandate as to coverage, a definition of the hazards to be borne by the insurer. It means only this, that within the limits of the coverage, the policy shall stand, unaffected by any defense that it was invalid in its inception, or thereafter became invalid by reason of a condition broken.” So, as Judge Lehman said in another connection in Apter v. Home Life Insurance Company (266 N. Y. 333, 338, 339), the insurance company’s assertion in this suit that the policy coverage was actually $15,077, instead of $25,000, “is in exact accord with the written contract of the parties and is not in conflict with the provision that the validity of the written contract may not be contested.” Our conclusion that the incontestability clause did not ban the enforcement, after two years, of the age adjustment clause, gets further support when we consider that it was not only by the same statute, but by the same paragraph thereof, that the Legislature originally mandated the inclusion of these two clauses in the old “ standard form policy ” (L. 1906, ch. 326, § 37, [Insurance Law, § 101]). They must be read and enforced together so that neither cancels the other. (See Matter of Kaplan v. Peyser, 273 N. Y. 147, 149, 150.)

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

• Lehman, Oh. J., Loughban, Lewis, Conway, Thacheb and Dye, JJ., concur.

Judgments reversed, etc.


author: Thacher, J.

text:
    The People of the State of New York, Respondent, v. Samuel A. Nuzzo, Appellant.
    Argued November 29, 1944,
    reargued March 9, 1945;
    decided May 24, 1945.

      Henry Hirschberg for appellant.
    I. Evidence was illegally introduced regarding defendant’s relations and other crimes committed with Jennie Utter. (People v. Molineux, 168 N. Y. 264; People v. Wansker, 191 App. Div. 875; Stewart v. State, 184 Ind. 367.) II. The trial court committed reversible error in refusing to charge that the minute books of the local were not the corroboration of the accomplice Smith necessitated by section 399 of the Code of Criminal Procedure and by refusing to charge that Smith’s long hand notes of the meetings were not such corroboration. (People v. Felber, 264 App. Div. 181; People v. Feola, 284 N. Y. 381; People v. Goldstein, 285 N. Y. 376; People v. Maione, 284 N. Y. 423; People v. Edwards, 282 N. Y. 413; People v. Louise, 242 App. Div. 471; People v. O’Farrell, 175 N. Y. 323; People v. Elbroch, 250 App. Div. 583; People v. Nitzberg, 287 N. Y. 183; People v. Kinney, 202 N. Y. 389; People v. Collier, 141 App. Div. 111; People v. Kress, 284 N. Y. 452.) III. Defendant’s constitutional rights to due process of law guaranteed Mm by section 1 of article 6 of the State Constitution and by the 14th Amendment to the United States Constitution were violated, in that the trial court denied him the right to prove that the grand jury returning the indictment had been illegally organized pursuant to a conspiracy excluding from said grand jury all qualified prospective grand jurors of defendant’s class, i.e. those connected directly, or indirectly, with organized labor. (People ex rel. Nuzzo v. Truesdell, 265 App. Div. 886; The People v. Petrea, 92 N. Y. 128; Carter v. Texas, 177 U. S. 442; Norris v. Alabama, 294 U. S. 587; Strauder v. West Virginia, 100 U. S. 303; Mamaux v. United States. 264 F. 816.)

      Nathaniel L. Goldstein, Attorney-General (Stanley H. Fuld, Irving Galt, Saul A. Shames and John F. Tucker of counsel), for respondent.
    I. The court correctly instructed the jury with respect to corroboration of the accomplice Smith’s testimony regarding the forgeries in the minute book, and properly declined to charge further on that subject with reference to specific items of evidence singled out by counsel. The court was not bound to subdivide its instructions on corroboration and charge separately "with reference to specific evidence selected by counsel. (People v. Radcliffe, 232 N. Y. 249; People v. Tuczkewitz, 149 N. Y. 240; People v. Weisenberger, 73 App. Div. 428; The People v. McCallam, 3 N. Y. Cr. R. 189, 103 N. Y. 587; People v. Maione, 284 N. Y. 423; People v. Felber, 264 App. Div. 181.) II. Defendant received a fair trial free from prejudicial error. The examination of Jenny Utter was proper. III. The Grand Jury was properly selected. In any event, even if the court had improperly excused the talesmen, the resulting Grand Jury was validly constituted and the indictment subsequently returned was legal and sufficient. People v. McGonegal, 136 N. Y. 62; United States v. Jones, 69 F. 973; State v. Guthrie, 185 Wash. 464; State v. Westcott, 194 Wis. 410; State v. Codington, 80 N. J. L. 496, 82 N. J. L. 728; Territory v. Barth, 2 Ariz. 319.)
   Thacher, J.

The defendant was tried upon two consolidated indictments containing eight counts for grand larceny in the first degree, thirteen for grand larceny in the second degree, one for petit larceny and thirteen for forgery in the third degree. The court dismissed two of the counts of grand larceny in the second degree and reduced one count of grand larceny in the second degree to petit larceny. The jury acquitted the defendant on one count of grand larceny in the second degree and found the defendant guilty upon all the remaining counts. There was a third indictment filed against the defendant which contained fifty-four counts charging various grand larcenies, some in the first and some in the second degree. This indictment was never moved for trial. A large part of the record of the trial of the consolidated indictment was taken up with the introduction of evidence to show that the defendant committed the crimes alleged in this untried indictment as well as many other crimes not specified in any of the indictments.

All the offenses as to which evidence was given upon the trial arose out of the defendant’s administration of his office of financial secretary and business agent of a labor union, Local 17 of the International Hod Carriers’ Building and Common Laborers-’ Union of the American Federation of Labor. The affairs of this union were investigated by the Attorney-General (pursuant to directions of the Governor) and the indictments followed this investigation.

In affirming the defendant’s conviction the Appellate Division in a brief memorandum based its decision upon section 542 of the Code of Criminal Procedure, thus indicating errors in the trial which it felt constrained to disregard as not affecting the substantial rights of the defendant. This court is agreed that the evidence was sufficient to support the verdict of the jury and that errors were committed in the course of the trial.

As part of their main case, the People called as a witness Mrs. Jennie, C. Utter, who testified, over objection and exception, that she accompanied the defendant on trips to conventions of the American Federation of Labor at Atlantic City, New York City and St. Louis; she further testified that she took a trip to Florida with the defendant in January, 1940; that on each one of these trips she stayed in the hotel where the defendant stayed and her expenses were all paid by him; that while they were in Florida together he flew with her to Cuba for a three-day trip and, returning to Miami Beach, he purchased for her a silver fox coat costing $350. The circumstances disclosed by her. examination plainly suggested that her relations with the defendant were improper, and it is. admitted by the Attorney-General that her testimony relating to the trips which she made with the defendant to St. Louis and to New York should not have been received. The Attorney-General also concedes that if the testimony of this witness were introduced to prove an illicit or meretricious relationship it would have been improper, but asserts that the evidence was adduced solely to discredit the defendant’s claim that local funds had been used for union purposes, the defendant having told the Grand Jury prior to his indictment that he had spent $1,500 legitimately in Atlantic City for ten or twelve bodyguards and had paid one Wallace $500 properly while he was vacationing in Florida. If Mrs. Utter’s testimony had shown that the defendant’s testimony before the Grand Jury with reference to the expenditure of union funds was false, then it would have been competent and highly material. It showed nothing of the kind. Her only testimony relating to bodyguards was that she was never present when the defendant had a conversation concerning bodyguards and she did not hear him discuss them. There was nothing to show that she was present when such matters might have been discussed. The Attorney-General asserts that Mrs. Utter furnished testimony strongly suggesting that the union’s money went to cloak her with a $350 fur coat. Certainly there is nothing in her testimony to show that she had any knowledge whatever as to the source of the money which the defendant spent in making this purchase. The defendant testified: “ Q. While you were down there [in Florida] did you and Mrs. Utter and Angelo Tudico fly over to Cuba? A. Yes, sir. Q. Did Mrs. Utter go as your guest? A. Yes, sir. Q. How long were you in Cuba? A. Three days. Q. And was it before you went or after you came back that you telegraphed to Helen Bonk for the $500? A. I believe it was after I came back. Q. And how much money did you take with you on that trip, Mr. Nuzzo? A. I .had about $500, I believe, $600.” The defendant admitted he had bought a silver fox coat for Mrs. Utter costing $350, but testified: “ Q. Now, on this $500 that you got by telegraphing did you give all of that to Wallace? A. Yes, sir.” It is upon this testimony that the Attorney-General attempts to support his assertion that union funds were used to pay for the fur coat.

Upon this record we are constrained to conclude that there was no legitimate purpose in calling Mrs. Utter as a witness and we are confirmed in this view by the use made of her testimony by the Attorney-General in his summation to the jury. The following comments were made: In 1939, August, I believe, Nuzzo has got to go to Atlántic City, to a meeting of the International Executive Board; so Sam and Mrs. Utter go down to Atlantic City. ’ ’ And again, with reference to the convention in New York: So they all go down to New York with Mrs. Utter to the convention.” “ Well, in January, 1940, they are. going to town on this organization, and what do these books show? In January, 1940, that is just before Sam and Mrs. Utter went to Florida, * * * “ ‘ Come on, Mr. Tudico, my brother-in-law, married to my wife’s sister. Come on, Mrs. Utter to Florida. ’ Mrs. Utter as Mr. Nuzzo’s guest. Strathaven Hotel, Miami Beach. A week. Come on, Tudico. Come on, Mrs. Utter. No, we won’t take a boat. Let us fly over to Cuba for three days, ’ and we come back. $500. That is all he has got. $500. He traveled down by train state rooms, plural, I mean, Strathaven Hotel, Miami Beach, fly to Cuba, three days, $500. He is back. 1 Hello, Newburgh.’ Is this Miss McKay? Send me down $500, Western Union. 1 will tell you what it is for when I come back.’ * * * And Mrs. Utter gets a silver fox coat for $350. It is not denied but admitted by Nuzzo on cross examination. Take $350 from $500 and you have not got much left. ” Oh, I could go on. I could take you to St. Louis, take Mrs. Bilyeu and Mr. Bilyeu and Mr. Bussell and Mrs. Utter and Sam, take you to St. Louis and spend $2,500 of the union’s money, but I won’t take up your time, you remember it as well as I do.”

It is not without significance that the testimony is said to have been introduced to discredit testimony already given by the defendant, not upon the trial but before the Grand Jury, although it had no such effect. What she said about the bodyguards did not discredit the defendant’s testimony that such guards were employed and paid and her testimony that the defendant had spent $350 for the coat discredited nothing in defendant’s testimony.

It is the established rule that specific acts of a defendant in a criminal trial, unrelated to the offense with which he is charged but tending to show his bad character, may only be proven by his own admissions on cross examination if he chooses to give testimony and then only to the extent that such acts tend to impeach his credibility as a witness. (People v. Webster, 139 N. Y. 73, 84.) Nor does he put his general character in issue by taking the stand unless he introduces affirmative proof of good character. (People v. Richardson, 222 N. Y. 103, 107; People v. Hinksman, 192 N. Y. 421.) These rules of fundamental fairness in the protection of the individual against unjust prosecutions are inflexibly enforced in our courts (People v. Zackowitz, 254 N. Y. 192), and we may not overlook their breach as not affecting the substantial rights of the defendant within the meaning of section 542 of the Code of Criminal Procedure when the purpose and effect of the breach is to create prejudice against the defendant by proof that-his character is bad, even if the evidence convinces us of the defendant’s guilt. (People v. Marendi, 213 N. Y. 600, 620.) Nor may these rules be perverted by erroneously receiving proof of bad character as part of the People’s case and purging the error on appeal because the defendant later took the stand. (People v. Zackowitz, supra.) At no stage of the trial in this case could the testimony of Mrs. Utter that she made several extended trips with the defendant, at his expense and under circumstances highly suggestive of improper relations, have been properly received in evidence.

The forgery counts were based upon the testimony of Harold S. Smith, a former secretary of Local 17, who testified that minutes of certain motions had been inserted in the minute books as forgeries by him at the instance and request of the defendant. This was denied by the defendant who called a number of witnesses to testify that they heard the proceedings on the motions which Smith had testified he had thus fabricated. Other witnesses called by the State gave corroborative testimony tending to connect the defendant with the forgeries. The Trial Justice instructed the jury that Smith was to be considered an accomplice as a matter of law and read the provisions of section 399 of the Code of Criminal Procedure requiring such testimony to corroborate an accomplice. This general charge was correct but the documentary evidence in Smith’s original notes and in the minute books themselves was not mentioned and the jury was left to decide for itself the legal question whether such documents were corroborative evidence within the requirement of the statute.

Counsel for the defendant requested specific charges that neither the minute books themselves nor Smith’s original notes could be regarded as corroboration under the statute. Both requests were declined and exceptions taken.

The Attorney-G-eneral admits that these records could not be taken in corroboration of the accomplice and rests upon the proposition that, the general charge being correct, the court was not required to go farther, citing People v. Radcliffe (232 N. Y. 249). It takes but little thought to realize how persuasive a contemporary written record may be in establishing the facts recorded. These records must have had that effect and were in common understanding corroborative of the testimony of Smith, although inadequate as corroboration in the statutory sense because they in no way connected the defendant with the forgery. Under these circumstances the defendant was fairly entitled to an instruction upon the legal effect of such records in supplying or failing to supply the necessary corroboration. The rule of convenience which justifies a court in refusing to charge specifically with reference to items of evidence as to which a general charge has already been made, as applied, for example, in People v. Radcliffe (supra), can have no application here. The request was directed to a question of major importance in the consideration of the forgery counts which we are not satisfied was sufficiently clarified by the general charge. There would have been no inconvenience whatever in granting the requests and they should have been granted.

Thirty years ago this court had occasion to comment upon abuses on the part of prosecuting officers and carelessness on the part of trial courts in disregarding errors of major importance in the trial of criminal cases whenever the judge was satisfied that the defendant was guilty. We are prompted by our examination of records in this court disclosing many shocking instances of abuse on the part of prosecuting officers which we have been asked to ignore, to say again what was said in People v. Marendi (213 N. Y. 600, 619-620):

“ Are we then to disregard errors no matter how substantial, if upon a review of the evidence we are satisfied with the verdict of the jury? Such a course will simply mean in the long run the abolishing of all forms of law taught by experience to be necessary to the protection of the innocent and the decision of criminal cases on appeal solely on the facts. If trial by jury is to be maintained, the right of every accused person to be tried in accordance with established forms of law must be respected. If the errors in question had related to matters upon which but one decision, and that adverse to the' defendant, could reasonably have been reached, it might be permissible to overlook them; but where prejudicial matter is erroneously received in evidence on a disputed question of, fact, its harmful character cannot be determined solely by the mere weight of competent evidence unless we are to resolve ourselves into a jury and, ignoring the finding upon incompetent evidence, substitute one upon the evidence which we may deem competent.
“ In this case highly prejudicial matter was received in evidence on a vital issue in utter disregard of a fundamental rule of evidence firmly established in our jurisprudence, and the jury were permitted to find the defendant guilty of murder in the first degree on a theory which ought not to have been submitted to them, whereas they might reasonably have found a verdict in a lesser degree on the rightful theory. Under those circumstances we cannot affirm without establishing the rule that the forms of law need not be respected if the evidence convinces us of the defendant’s guilt. We are not prepared to establish such a rule.” No two cases are quite the same but the case at bar is plainly one in which we may not overlook the highly prejudicial manner in which the prosecution was conducted.

Serious complaint is made by the defendant because of the large volume of testimony introduced upon the trial relating to charges of crime other than those contained in the indictments upon which the defendant was being tried. The Attorney-General contends that all this evidence was admissible upon the issue of felonious intent. The defendant contends that the issues were such that this evidence of collateral transactions could have no probative force in establishing defendant’s actual guilt of the crimes for which he was tried save as it may have shown a predisposition to steal, and that it was prejudicial error to receive it, citing People v. Mullens (292 N. Y. 408, 418). In view of the mass of such evidence offered in this case the decision in the Mullens case may well be important, but we need not consider this and other questions which were argued but have not been discussed in this opinion because they may not arise on another trial or, if they do, may require consideration in a different setting.

One objection of the defendant if sustained would require dismissal of the indictment. It relates to the selection of the members of the Grand Jury which indicted the defendant and the contention is that the Grand Jury was illegally organized pursuant to a conspiracy to exclude qualified prospective grand jurors. The defendant asserts a “ deliberate and intentional exclusion of all duly qualified prospective grand jurors of the same class and occupation as appellant ” in violation of appellant’s constitutional rights guaranteed by article I, section 6, of the Constitution of the State of New York and by the Fourteenth Amendment to the Constitution of the United States. The examination of prospective grand jurors upon the voir dire is presented in this record from which it appears that no prospective jurors were excluded from the Grand Jury other than several who were excused upon their own request, one because he was over seventy years of age, one for bias whose testimony in regard to activities as a union official was shown to be false and another whose son-in-law belonged to a union which the Attorney-General stated was bound to be involved directly or indirectly ” in the investigation and who was excused by the court when he stated that he “ would just as soon be excused ”. In connection with this challenge the court stated its desire to avoid any possibility of embarrassment to any talesman. We find in these proceedings no reason for dismissing the indictment, nor any grounds for taking proofs of conspiracy improperly to exclude any qualified person from the Grand Jury. The challenges sustained by the court were properly sustained in the exercise of the court’s discretion.

The judgments should be reversed and a new trial ordered.

Lehman, Ch. J., Loughran, Lewis, Conway and Dye, JJ., concur; Desmond, J., dissents and votes to affirm the judgment under the provisions of section 542 of the Code of Criminal Procedure.

Judgments reversed, etc.


text:
    City of New York, Appellant, v. Third Avenue Railway Company et al., Respondents.
    Argued February 28, 1945;
    decided May 24, 1945.

      Ignatius M. Wilkinson, Corporation Counsel (Reuben Levy and Julius Isaacs of counsel), for appellant.
    I. None of the uses of the city’s filled-in waterfront land has any connection with any enterprise conducted on the adjoining upland. II. A municipality has a substantial right to use its filled-in land under water even though that land is subject to riparian rights; the municipality’s interest in such property has substantial value. (City of New York v. Wilson & Co., 278 N. Y. 86; Hedges v. West Shore R. R. Co., 150 N. Y. 150; Tiffany v. Town of Oyster Bay. 234 N. Y. 15; People v. Delaware and Hudson Co., 213 N. Y. 194; Harway Improvement Co. v. Partridge, 203 App. Div. 174, 236 N. Y. 563.) III. The railway company filled in the city’s land under water as the city’s tenant and acquired no greater rights in the city’s filled-in land than it had before the land was filled in. (Tiffany v. Town of Oyster Bay, 234 N. Y. 15; Melton v. Fullerton-Weaver Realty Co., 214 N. Y. 571; Lacustrine Fer. Co. v. L. G. & Fer. Co. et al., 82 N. Y. 476.) IV. Defendants’ unauthorized appropriation of the city’s land under water for purposes of storage and the operation of a coal business clearly exceeds the lawful exercise of the riparian rights appurtenant to the defendant railway company’s adjoining upland. (City of New York v. Wilson & Co., 278 N. Y. 86; Matter of City of New York, 168 N. Y. 134; Hinkley v. State of New York, 234 N. Y. 309; Barnes v. Midland R. R. Terminal Co., 218 N. Y. 91; Tiffany v. Town of Oyster Bay, 234 N. Y. 15; Matter of City of New York [Pier Old No. 49], 227 N. Y. 119; Hedges v. West Shore R. R. Co.,
      150 N. Y. 150; People v. Steeplechase Park Co., 218 N. Y. 459; Matter of City of New York [Neptune Avenue], 254 App. Div. 690, 280 N. Y. 604; Town of North Hempstead v. Gregory, 53 App. Div. 350.)

      Alfred T. Davison and Addison B. Scoville for Third Avenue Railway Company, respondent.
    I. No question survives for review by the Court of Appeals. II. Defendants’ use of the city’s land under water did not exceed their riparian rights. (Sage v. The Mayor, 154 N. Y. 61; Hinkley v. State of New York, 234 N. Y. 309; Matter of Del Balso H. Corp. v. McKenzie, 271 N. Y. 313; City of New York v. Wilson & Co., 278 N. Y. 86; United P. B. Co. v. Iroquois P. & P. Co., 226 N. Y. 38.) III. Appellant’s arguments on this appeal are predicated on facts flatly contrary to the findings of fact of the trial court unanimously affirmed by the Appellate Division.

      James E. Kelliher for Bradley-Mahony Coal Corporation, respondent.
    Defendant coal corporation has not exceeded the riparian privileges leased to it by the upland owner. (City of New York v. Wilson & Co., 278 N. Y. 86; Tiffany v. Town of Oyster Bay, 234 N. Y. 15; Matter of City of New York, 168 N. Y. 134; Sage v. The Mayor, 154 N. Y. 61; Town of Brookhaven v. Smith, 188 N. Y. 74; Burns Bros. v. City of New York, 178 App. Div. 615, 232 N. Y. 523; Vilias v. Featherson, 94 App. Div. 259; Matter of City of New York, [West 205th St.] 240 N. Y. 68.)
   Desmond, J.

The City of New York brought this action to recover from defendants the possession of certain lands formerly under water, title to which is in the City under ancient grants (see Sage v. The Mayor, 154 N. Y. 61), and for damages for use of such lands. The lands in question are outshore of the highwater line of the Harlem River and are in area about 53,000 square feet. About 12,000 square feet thereof have been left as a basin or slip — the rest was filled in by the defendant railway company or its predecessors, many years ago, out to the bulkhead line. Defendant Third Avenue Railway Company owns the adjoining upland; defendant Bradley-Mahony Coal Corporation is a tenant of the railway company as to part of the lands here involved, so that the two defendants are, unquestionably, in legal possession of the uplands, with all the rights of riparian proprietors on tide water. Unquestionably, too, the railway company, as riparian owner, possesses, as incident to its fee title to the lands above high water mark, rights to the use of the filled-in lands to which the City has title. The City argues, however, that the actual use made by defendants of the filled-in lands far exceeds that appropriate to their right of access to deep water, and their right of “ wharfing out.”

The action was tried twice, both times without a jury. After the first trial the court gave judgment decreeing that the City was owner of the outshore lands, but dismissing the complaint so far as it demanded possession and damages for use and occupation. The Appellate Division, First Department, reversed that judgment and ordered a new trial (264 App. Div. 193, 194). That court held that while the City could not maintain ejectment against the riparian owners, it did not follow that the City could not recover for use and occupation “ to the extent that such use by the defendants exceeds their riparian rights ”. The Appellate Division’s opinion on that first appeal suggested at least a doubt as to whether defendants had gone beyond their rights by putting permanent or semi-permanent structures on the made lands, formerly under water. In that connection the Appellate Division cited such cases as Matter of City of New York (Neptune & Emmons Avenues), (280 N. Y. 604) and People v. Steeplechase Park Co. (218 N. Y. 459), to which cases we shall refer at another place in this opinion.

After the. second trial the trial court again held for defendants, and the Appellate Division then affirmed without opinion, and this court granted leave to appeal here. The trial court’s opinion after the second trial was that despite the Appellate Division’s reversal on the first appeal, there remained open to the trial court this question: “ To what extent, if any, does defendants’ use of the property in question exceed their riparian rights? ” The Trial Justice noted that some of ii±e language in the Appellate Division’s opinion on the first appeal might seem to have decided that question against defendants, but took the view that the extent of such use was a question of fact to be decided on the record on the second trial. The Appellate Division itself, by its affirmance of the judgment for defendants rendered on the second trial, seems to have agreed with the trial court that the question of whether the upland owners had or' not exceeded their rights was, on this record, a question of fact.

As found by the trial court on sufficient evidence, the uses made of the filled-in lands by defendants are these: they have erected and use thereon a small (14 x 14 feet) power house or “ cable house. ”, two trolley tracks with poles and wires, also coal hoppers, conveyors, pockets, screener, scales and a small office. The trolley tracks are used by defendant railway company to carry on flat cars certain supplies, which ai;e unloaded at waterside from barges or lighters. The railway company uses the “ cable house ” to transfer electric current, brought across the Harlem River by submarine cables, to land cables whence the current is transmitted to the trolley wires of the railway company. Sometimes the railway company’s supplies are left lying on the filled-in lands for a time before they-are carried away on its flat cars. The other structures or facilities on the filled-in lands (hoppers, pockets, conveyor, screener, scales and a small office) are used by defendant coal company in connection with its business: coal is unloaded from barges at the water’s edge, handled in the hoppers and pockets and taken away on motor trucks. All materials brought to the scene by water and carried away across the filled-in lands are transported on trucks or flat cars which enter the filled-in lands from the railway company’s uplands and leave by the same route. Indeed the" only practicable access to the filled-in lands is over the railway’s lands or from the Harlem River. None of the structures or facilities maintained by defendants on the filled-in lands are, apparently, of great size or value. Some of the photographs in the record show a large, substantial power house building, but the trial court found — and the City does not dispute — that this large building is, except for a small corner thereof, on the uplands. The City concedes that the small encroachment is not of importance here.

The trial court thought that the filling-in of the underwater lands was in substance the same as the building of a wharf out to deep water, by a riparian owner, and that all the activities of defendants, on and over the filled-in lands to which plaintiff City has title, though activities “ numerous and of great magnitude ”, are “ incidents of the loading and unloading of waterborne freight That court cited Matter of City of New York (168 N. Y. 134, 143), and many other cases dealing with the right of riparian owners of access to navigable water, and with their right to construct wharfs, etc., to make the right of access useful for loading, unloading and transporting merchandise. It quoted from Matter of City of New York (supra, p. 146), as follows: “ The Harlem Biver as a public highway was open to them [the riparian owners], not alone as a means of getting to and from their own lands, but for all the purposes of traffic and communication to which such an artery of commerce may be devoted.” We think the courts below were justified in holding as fact that the putting up and use by defendants of the small structures on the filled-in lands was incidental only to their reasonable enjoyment of their right to transport merchandise to and fro between the navigable water and their lands. Neither Matter of City of New York (Neptune & Emmons Avenues) nor People v. Steeplechase Park Co. (supra), both relied upon by the City, are to the contrary. Those cases went no further than to deny to the upland owners any right to use the filled-in foreshore for purposes so unrelated to commerce and navigation as the operation of a restaurant (Neptune Avenue case) or of roller coasters and similar amusement devices (Steeplechase Park case).

The City argues that the judgment below is erroneous and unfair to the City since, according to it, the judgment permits defendants to engage in extensive and continuous business activities on the City’s lands. Such a conclusion can follow only from a view of the facts, different from that taken by the courts below. That view is that all the structures and activities of defendants on the filled-in lands constitute but methods and facilities for moving defendants’ merchandise and supplies from deep water to the uplands. Such a view of the situation is a permissible one and so the - question decided below was essentially one of fact, put beyond our reach by the Appellate Division’s affirmance.

The courts below treated defendant railway company’s filling in of the shallow water as equivalent to the construction of a wharf by a littoral owner. The City says that the right to “ wharf out ” does not, however, include the right to erect buildings on the wharf. We see no reason for such a limitation, so long as the buildings themselves do not constitute such an appropriation of the foreshore as prevents appropriate public uses. In Barnes v. Midland R. R. Terminal Co. (see first appeal, 193 N. Y. 378, 385, 386, and second appeal, 218 N. Y. 91, 97) defendant had built a covered pier of such design that it barred the public from passing to and fro on a beach; this court’s modification of the injunction allowed the covered pier to stand so long as open passageways underneath it were provided. There is nothing in the present record to show that defendant’s buildings in fact interfere with any desired or contemplated public use of this foreshore. Defendants’ use and occupation is of course, subject to the superior rights of the public (Sage v. The Mayor, supra; Town of Brookhaven v. Smith, 188 N. Y. 74, 87) but defendants’ present use “ does not affect navigation or any public right or interest ” (People v. Mould, 37 App. Div. 35, 39, 42). “ What form or shape or size the pier may take varies with use and necessity ” (Hinkley v. State of New York, 234 N. N. 309, 318). The reasonable use of these lands by defendants in connection with commerce and navigation necessitates the maintenance of the small structures complained of. “ The defendants have, simply, made their right of access practical ” (Town of Brookhaven v. Smith, supra, 188 N. Y. at p. 87). “ * * * the riparian owner’s right of access to the navigable waters in front of his upland comprehends, necessarily and justly, whatever is needed for the complete and innocent enjoyment of that right ” (same citation).

The City asserts that defendant coal company, leasing part of these lands from defendant railway company, has put its part of the lands under water to uses disassociated from any use of the upland. The coal company, says the City, is conducting a coal business on the City’s lands and uses the railway company’s uplands only for access to the filled-in lands. We think the record establishes, that the coal company uses both upland and foreshore, since access to the latter is only through the former or from the Harlem Biver. Even if it were the fact that defendant railway company had leased to the coal company only the right to use the made lands, entirely apart from the uplands, such leasing would not be an illegal exercise by the railroad company of its rights as a riparian owner. (See as to severability and alienability of riparian rights, Black’s Pomeroy on Water Rights [1893 ed.], ch. 254; Lawrence et al. v. Whitney et al., 115 N. Y. 410; 423; United P. B. Co. v. Iroquois P. & P. Co., 226 N. Y. 38, 47; Weems Steamboat Co. v. People’s Co., 214 U. S. 345.)

We have not considered herein, because unnecessary to our decision, several other points urged by respondent.

The judgment should be affirmed, with costs.

Lehman, Ch. J., Loughran, Lewis, Conway and Dye, JJ., concur; Thacher, J., taking no part.

Judgment affirmed.


author: Conway, J.

text:
    In the Matter of John A. Bacom et al., Respondents, against J. Edward Conway et al., Constituting the State Civil Service Commission, et al., Appellants, and Frank Gernert et al., Interveners, Appellants.
    Argued March 5, 1945;
    decided May 24, 1945.

      Seth T. Cole for interveners, appellants.
    I. The service of incumbents with the State Department of Public Service was State service and it was proper to add such service to their service with the State Department of Taxation and Finance in determining their seniority rights under section 31 of the Civil Service Law. (Matter of Powers v. La Guardia, 292 N. Y. 695; Matter of McKinney v. McGoldrick, 243 App. Div. 210; Matter of McAneny v. Bd. of Estimate, etc., 232 N. Y. 377; Matter of Collins v. Transit Commission, 267 App. Div. 843; Matter of Felder v. Fullen, 27 N. Y. S. 2d 699, 263 App. Div. 986, 289 N. Y. 658; Bateman v. Fullen et al., 28 N. Y. S. 2d 230; Matter of Solo v. Fullen, 263 App. Div. 986, 289 N. Y. 660.) II. The transfer of incumbents from the Metropolitan Division of the State Department of Public Service to the Motor Vehicle Bureau of the State Department of Taxation and Finance was legal. (People ex rel. Schau v. McWilliams, 185 N. Y. 92; Matter of Simons v. McGuire, 204 N. Y. 253; Matter of Carroll v. Murray, 131 Misc. 577; Matter of Pruzan v. Valentine, 282 N. Y. 498; Matter of Marks v. Bruckman, 170 Misc. 709; People ex rel. Schau v. McWilliams, 185 N. Y. 92; Matter of O’Connell v. Clark, 200 App. Div. 606; People ex rel. Rudd v. Cropsey, 215 N. Y. 451; Matter of Felder v. Fullen, 27 N. Y. S. 2d 699, 263 App. Div. 986, 289 N. Y. 658; Matter of Solo v. Fullen, 263 App. Div. 986, 289 N. Y. 660; Matter of Powers v. La Guardia, 292 N. Y. 695; Bateman v. Fullen et al., 28 N. Y. S. 2d 230.)

      Nathaniel L. Goldstein, Attorney-General (Herman F. Nehlsen and Orrin G. Judd of counsel), for J. Edward Conway and others, constituting the State Civil Service Commission, and others, appellants.
    I. The service of the incumbents with the Metropolitan Division of the Department of Public Service is State service and was properly added to their service in the . Depártment of Taxation and Finance in determining their seniority rights under section 31 of the Civil Service Law. (Gubner v. McClellan, 130 App. Div. 716; Matter of Bryant, 152 K Y. 412; Matter of Felder v. Fullen, 27 N. Y. Supp. 2d 699, 263 App. Div. 986, 289 N. Y. 658; Matter of Solo v. Fullen, 263 App. Div. 986, 289 N. Y. 660; Matter of Collins v. Transit Commission, 267 App. Div. 843; Matter of Powers v. La Guardia, 292 N. Y. 695.) II. The transfer of the incumbents from the Metropolitan Division of the Department of Public Service to the Motor Vehicle Bureau of the Department of Taxation and Finance was legal. (Matter of Pruzan v. Valentine, 282 N. Y. 498; Matter of Marks v. Bruckman, 170 Misc. 709; Matter of Stracquadanio v. Dept. of Health, 285 N. Y. 93; People ex rel. Schau v. McWilliams, 185 N. Y. 92; New York & Queens Gas Co. v. McCall, 219 N. Y. 84, 245 U. S. 345; Matter of Levine v. Connelly, 267 App. Div. 796; Matter of O’Connell v. Clark, 200 App. Div. 606; People ex rel. Rudd v. Cropsey, 215 N. Y. 451; Matter of Hecht v. Kern, 178 Misc. 571; Matter of DeLack v.
      Greene, 170 Misc. 309; Matter of Weldon v. Rheinstein, 283 N. Y. 753; Matter of Eagan v. Livoti, 287 N. Y. 464.)

      Bernard Birnbaum for respondents.
    I. Petitioners’ suspensions were unlawful because petitioners were senior to the interveners. The interveners’ Transit Commission service was city service and could not be added to their service with the Motor Vehicle Bureau. (Matter of Horn v. Gillespie, 267 N. Y. 333; Matter of McAneny v. Bd. of Estimate, etc., 232 N. Y. 377; Matter of McKinney v. McGoldrick, 243 App. Div. 210, 266 N. Y. 632; Matter of Sanger v. Greene, 269 N. Y. 33; Matter of Eagan v. Livoti, 287 N. Y. 464; Matter of Waters v. Buck, 265 App. Div. 344, 290 N. Y. 840.) II. The transfers of the interveners from the Transit Commission to the Motor Vehicle Bureau were contrary to law for two additional reasons: (1) the law does not permit transfers between positions for which the qualifications are essentially different; and (2) the transfers were effected while a list existed for their present positions. (Matter of Woods v. Finegan, 246 App. Div. 271; Matter of McNamara v. Holling, 282 N. Y. 109; Matter of Ryan v. Kaplan, 213 App. Div. 131, 240 N. Y. 690; Matter of Waters v. Buck, 265 App. Div. 344, 290 N. Y. 840; Matter of Talbot v. Board of Education, 290 N. Y. 612.)
   Conway, J.

On April 1, 1943, both the petitioners and the interveners were occupying the positions of motor vehicle license examiners in the Motor Vehicle Bureau of the Department of Taxation and Finance. Effective on that day, a number of those positions were abolished and it became necessary to suspend a certain number of employees “ in the inverse order of original appointment in the service ”, pursuant to the provisions of Civil Service Law, section 31. We must determine whether the petitioners or the interveners have seniority. The interveners held the positions as a result of a transfer from the Transit Commission in 1940. The petitioners were appointed to the positions from a competitive list a few months earlier in the same year. When the positions were abolished, the interveners were retained and the petitioners were suspended. The Appellate Division was of the opinion that our decision in Matter of Horn v. Gillespie (267 N. Y. 333), was decisive of the issue and restored the petitioners to service. The appeal of the interveners is here by our permission. The question presented for our consideration is, therefore, whether service with the former Transit Commission (Metropolitan Division of the New York State Department of Public Service) is State or city service. If the interveners, when occupying the positions of transit inspectors, later called transportation service inspectors, in the Transit Commission, were State employees, then they are senior in service to the petitioners. Were they in city service, that could not be added to State service to establish seniority. (Matter of Eagan v. Livoti, 287 N. Y. 464.)

Historically, the Transit Commission has always been a State agency. When the amendment to article V, section 2, of the New York State Constitution was adopted at the general election in 1925, provision was made for a Department of Public Service. The enabling act, chapter 350 of the Laws of 1926, consolidated into that department the former Public Service Commission and the former Transit Commission. There was then a Department of Public Service with two divisions, viz., a State Division and a Metropolitan Division. The head of the Metropolitan Division was a Transit Commission, consisting of three members appointed by the Governor, by and with the consent of the Senate. They were subject to removal by the Governor for inefficiency, neglect of duty or misconduct in office. The head of the State Division was a Public Service Commission, consisting of five members appointed by the Governor, by and with the consent of the Senate. The chairman of the Commission was designated as such in his appointment and he was both chairman of the Public Service Commission and head of the department. When he acted in such capacity, he was known as the chairman of the Department of Public Service. The appointment or removal of all officers, clerks, inspectors, experts and employees of the department, or any division thereof, were subject to the approval of such chairman.

The jurisdiction of the Transit Commission extended generally, at the period herein involved, to:

(1) Bailroads, street railroads and stage or omnibus lines or routes lying exclusively within a city containing a population of over one million inhabitants and to the persons or corporations owning, leasing or operating them;
(2) Similar lines or routes where a portion of the lines or routes were within such city but extended beyond the city to a point within the State (in which case the Public Service Commission had jurisdiction outside the territorial limits of the city);
(3) All omnibuses with a carrying capacity of more than seven persons,-operating within the City of New York.

The Department of Public Service, with its State and Metropolitan Divisions, was separate and apart from the Board of Transportation, created by the Legislature in 1924 (L. 1924, ch. 573) for the purpose of constructing New York City subways, to which Board reference will later be made.

' The salaries of interveners were determined by the Transit Commission (Matter of Powers v. La Guardia, 292 N. Y. 695) under Public Service Law, section 13, which provides that employees shall receive the compensation fixed by the commission ”, although they were actually paid by the city in which the commission had jurisdiction, pursuant to section 14.

By Chapter 170 of the Laws of 1943, the Metropolitan Division of- the Department of Public Service and the Transit Commission were abolished and their functions transferred to the State Division of the Department of Public Service.

The petitioners place great reliance upon Matter of Horn v. Gillespie (267 N. Y. 333), but that case should be limited to its facts and indeed has been limited by Matter of Powers v. La Guardia (292 N. Y. 695), in which we held that employees of the Transit Commission were entitled to annual salary increments as State employees under Civil Service Law, sections 40 and 41. (See, also, Matter of McAneny v. Bd. of Estimate, etc., 232 N. Y. 377, 390; Matter of McKinney v. McGoldrick, 243 App. Div. 210, affd. 266 N. Y. 632, 665.) Both sides urged the Horn case upon this court in the Powers case, and some of those affected by the decision in the Powers case had the same title in their employment (transportation service inspectors) as the interveners here. In the Horn case, the petitioner sought to add employment with the Public Service Commission for the First District and its successor, the Transit Commission (first as inspector of masonry and then as engineering inspector) to prior city service. The prior city service was with the Board of Water Supply as axeman. While with the Public Service Commission for the First District and the Transit Commission, Horn was concerned solely with construction of city subways. The work so done by Horn, and'other work upon city owned subways, was within a matter of months after his resignation transferred to the Board of Transportation (a city agency of three commissioners appointed by the Mayor) established by Laws of 1924, chapter 573, which added article 8 to the then Public Service Law. Section 134 of that law contained the statement: “it being the intention of this act to confer on the board of transportation the powers and duties under the Rapid Transit Act to construct or complete the construction of any road or roads remaining to be constructed by the city under any such contract, and to construct or construct and equip any new road or roads and to lease or operate such new road or roads and to retain in the Transit Commission the powers and duties not so transferred.” Section 139 provided for eligibility for transfer without examination of employees of the Transit Commission to the Board of Transportation who had been performing service in respect to subjects transferred to the Board. That was followed in 1934 (L. 1934, ch. 844) by the further provision that “ employees of the transit commission, having prior to the enactment of this article exercised functions and having performed • services in respect to subjects or matters, jurisdiction of which is transferred by this article to the board of transportation, shall be eligible to have their records of service transferred to the municipal civil service commission to be credited as service rendered for the city of New York.” In other words, if Horn had waited a matter of months, the Legislature would have done for him and others similarly situated, by statute, that which he accomplished by his court proceeding. The record in the Horn case discloses that that fact was urged upon us. In fact, in upholding Horn’s contention, we pointed out (p. 338) that under the circumstances there outlined “ his functions appertain, except in the strictest possible sense, to city service.” (Emphasis supplied.) Apart from the Horn case, it is quite clear that the Legislature was so certain that it had made Transit Commission employees State employees, that it thought it necessary to incorporate section 139 in the Public Service Law in 1924 and to amend it further, as indicated, in 1934. Here, neither petitioners nor interveners were ever connected with any work transferred to the Board of Transportation. (See, also, Matter of Felder v. Fullen, 263 App. Div. 986, affd. 289 N. Y. 658.)

The fact that the City of New York paid interveners’ salaries is not determinative. The salaries were fixed by the Transit Commission and not by the City. (Public Service Law, §§ 13, 14; Matter of McKinney v. McGoldrick, 266 N. Y. 632; Matter of Powers v. La Guardia, 292 N. Y. 695.) They were paid by the City as a matter of State administration. (Public Service Law, § 14, subd. 2.) One may be in State service and yet be paid by a city. For example, Civil Service Law, section 16, provides, in part: “ Persons holding positions in the competitive class, having been appointed or promoted thereto after a competitive examination, in the service of a city wholly including within its limits, two or more counties, or in the county service or in the state service where the compensation of such position is paid directly from the treasury of such city, may be transferred to similar and" corresponding positions interchangeably. Such transfer shall be made only with the approval of both the state civil service commission and the municipal civil service commission of such city.” (Emphasis supplied.)

Nor is the fact that the interveners are members of the city retirement system determinative. The city retirement system was created to provide “ a retirement system for officers and employees whose compensation in whole or in part is payable out of the treasury of the city of New York ” (L. 1920, ch. 427). It was not for officers and employees of the city exclusively. On the contrary, section 1700, subdivision 3, of the Greater New York Charter (L. 1901, ch. 466) as amended by that act includes State employees in the following definition: “3. ' City-Service ’ shall mean service, whether appointive or elective, as an official, clerk or employee of the city or state of New York * * .* so far as such service is paid for by the city of New York * * * ” (emphasis supplied). To the same effect are the provisions in the New York Administrative Code, which define city service in dealing with the city retirement system. (Administrative Code, §§ B3-1.0, B3-3.0.) It seems clear that it was convenience of administration of both the city and the State retirement systems which dictated the inclusion of such State employees as interveners in the city retirement system. It was more logical, as well as more practical, when a State employee received compensation from a city, to have him join the city retirement system and to have the city then make the necessary contribution than to have the city make the necessary salary deduction, and remit such deduction to the State so that the latter might then add its contributions to the State retirement system. The salaries of interveners were chargeable to the city in which such commission has jurisdiction, * ® * ” (Public Service Law, § 14) although they were State employees, and thus, quite properly, the contributions to the retirement system into which the interveners were cast, were also to be made by that city.

In the same way, the fact that the interveners were always regarded by the State Civil Service Commission as being in the State service for all of the purposes of the Civil Service Law, including the certification of payrolls, their seniority rights under section 31 of the Civil Service Law, their promotion, transfer, the abolition of their positions under section 16 of the Civil Service Law and the filing of their oaths of office with the Secretary of State under section 30 of the Civil Service Law, cannot be the determinative factor in resolving the question presented. We think that the factors which must finally settle and determine the matter are that the interveners' were appointed by the Transit Commission with approval of a State officer, the head of the Department of Public Service, and, subject to applicable constitutional and statutory provisions, could be discharged by like authority. It seems to us that if we follow that as a general rule, it will act as a guide for both public officials and employees. (See Matter of Goodman v. Ralph, 294 N. Y. 169.)

It is also urged that, even if the service of the interveners with the Transit Commission was State service, their transfers to their present positions as motor vehicle license examiners with the Department of Taxation and Finance was illegal because the qualifications for the two positions were different. There is proof in the record that the transfers were requested in 1940 by the chairman of the Transit Commission and that careful consideration was given to the problem by the Department of Taxation and Finance. The transfers were within the sound discretion of the administrative bodies concerned. (Civil Service Law, § 16; Matter of Stracquadanio v. Dept. of Health, 285 N. Y. 93, 96.) The transfers were to equal or lower positions and were permissible although, at the time, there was an open competitive list for the positions to which the interveners were transferred. (Civil Service Law, §§ 14, 16.)

The orders should be reversed and the petition dismissed, without costs.

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

Orders reversed, etc.