source: Caselaw Access Project

author: Lotjghbast, Ch. J.

license: Public Domain

text:
    Samuel Landsman, Appellant, v. Katherine Landsman, Respondent.
    Submitted October 5, 1950;
    decided November 30, 1950.

      Millard E. Theodore for appellant.
    I. The marriage between plaintiff and defendant is absolutely void because contracted at a time when defendant’s first husband was living. (Matter of Crandall, 196 N. Y. 127.) II. The court may not refuse to declare the invalidity of such a marriage under the doctrine of estoppel or that of clean hands. (Villafana v. Villafana, 275 App. Div. 810; Jackson v. Jackson, 274 App. Div. 43.) III. Section 6 of the Domestic Relations Law requires that a marriage void thereunder should be annulled at the request of either party notwithstanding that the party seeking the annulment may have committed acts , the most flagitious in contracting the marriage. Any exceptions which may be warranted by moral or equitable principles should 0be enacted by the Legislature and not by the courts. (Matter of Hyde, 177 Misc. 666; Bayreuther v. Reinisch, 264 App. Div. 138; Noel Associates v. Merrill, 184 Misc. 646; People ex rel. Doctors Hosp. v. Sexton, 267 App. Div. 736; Matter of Baerenklau v. Thatcher, 269 N. Y. 494.) IV. The marriage being concededly void, the courts below erred in granting defendant a separation. (Fearon v. Treanor, 272 N. Y. 268; Fischer v. Fischer, 254 N. Y. 463; Lefferts v. Lefferts, 263 N. Y. 131; Honig v. Honig, 267 App. Div. 908; Matter of Collis v. Collis, 184 Misc. 717; McCullen v. McCullen, 162 App. Div. 599; Krause v. Krause, 282 N. Y. 355.)

      William H. Yaeger for respondent.
    I. The determination of the trial court, as affirmed by the Appellate Division, denying an annulment to plaintiff because of his fraudulent misrepresentations which induced defendant to enter into marriage with him, was proper. (Stokes v. Stokes, 198 N. Y. 301; Villafana v. Villafana, 275 App. Div. 810; Lodati v. Lodati, 268 App. Div. 1003; Heller v. Heller, 172 Misc. 875, 259 App. Div. 852, 285 N. Y. 572; Bonney v. Bonney, 65 N. Y. S. 2d 488, 271 App. Div. 1060; Deweese v. Reinhard, 165 U. S. 386; Bernstein v. Kritzer, 253 N. Y. 410; Utility Elec. Co. v. Wilson, 230 App. Div. 738; Goodman v. De Roche, 253 App. Div. 834; Gillies v. Preferred Accident Ins. Co., 203 App. Div. 588.) XI. The judgment awarding respondent a separation together with alimony was proper. (Krause v. Krause, 282 N. Y. 355; Ozark v. Ozark, 191 Misc. 172; Johnson v. Johnson, 295 N. Y. 477.)
   Lotjghbast, Ch. J.

The parties went through a marriage ceremony at a time when the defendant already had a husband. To be sure, she had previously obtained a decree annulling her earlier marriage but that decree had not yet become final when she tried to marry the plaintiff. On these facts, he here demanded a judgment that would declare his union with her to be a nullity.

In her answer herein, she charged him with having deceived her by false representations in respect of the effectiveness of her interlocutory decree. On that basis, she demanded a judgment (1) dismissing his complaint in this annulment action; (2) separating her from his bed and board forever upon the ground of his abandonment of her; (3) awarding her alimony; and (4) permitting her to recover moneys which she claimed she had lent to him. Trial Term dismissed the complaint, separated the plaintiff from the defendant, directed him to pay her $20 each week for her support during her natural life plus $60 of arrears of temporary alimony, but dismissed her claim for money lent.

Cross appeals were taken by the parties to the Appellate Division where the judgment of Trial Term was in all respects affirmed. Then the plaintiff brought to us for review the parts of that judgment which are adverse to him. Since the defendant is content with the affirmance by the Appellate Division, her action for money lent is no longer of any importance.

With exceptions that are here without application, the law of this State denounces as void a marriage by a person whose husband or wife by a former marriage is living. (Domestic Eelations Law, § 6.) Thus the attempted marriage here in question was wholly without validity from its beginning; it created neither right nor duty; it gave neither scope for recrimination nor i com for any counteractive estoppel. Hence there could be no offense against it and, that being so, the plaintiff was free to bring this annulment action though he did not come to the court with clean hands. Hence, too, the defendant — though she may have acted in good faith — has no right to the judgment of separation that was awarded to her by the courts below (Fischer v. Fischer, 254 N. Y. 463, 466). This result, we think, is dictated by the statute for reasons that can be readily seen.

The judgment of the Appellate Division and that of the Trial Term should be reversed, without costs, and the action remitted to Trial Term for further proceedings not inconsistent with this opinion.

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

Judgment accordingly.


author: Fuld, J.

text:
    Elizabeth McLean, Respondent, v. Triboro Coach Corporation et al., Appellants.
    Argued October 6, 1950;
    decided November 30, 1950.

      Abraham L. Shapiro and Abraham Schlissel for appellants.
    The charge as to “ a very high degree of care ” was, in view of plaintiff’s contentions, both in her pleadings and'upon the trial, error of a substantial character. (Stierle v. Union Ry. Co., 156 N. Y. 70, 684; Schulz v. Finn, 273 App. Div. 780; O’Brien v. New York Rys. Co., 185 App. Div. 867; Brennan v. Brooklyn & Queens Tr. Corp., 258 App. Div. 1055; Glick v. New York R. T. Corp., 259 App. Div. 1044; Barbato v. Vollmer, 273 App. Div. 169; Taddeo v. Tilton, 248 App. Div. 290; Pickert v. Rochester Tr. Corp., 274 App. Div. 1088.)

      Philip J. O’Brien, William C. Morris and John G. Coleman for respondent.
    I. Plaintiff’s advanced age, together with the fact that defendants created a situation of grave danger from which injury might be expected, imposed upon the bus company, through its driver, the duty of exercising a very high degree of care and the court below was correct in so charging. ,(Maverick v. Eighth Ave. R. R. Co., 36 N. Y. 378; Keegan v. Third Ave. R. R. Co., 34 App. Div. 297, 165 N. Y. 622; Stierle v. Union Ry. Co., 156 N. Y. 70, 684; Koehne v. New York & Queens Co. Ry. Co., 32 App. Div. 419, 165 N. Y. 603; Loudoun v. Eighth Ave. R. R. Co., 162 N. Y. 380; Plumb v. Richmond Light & R. R. Co., 233 N. Y. 285; Pager v. Pennsylvania R. R. Co., 165 F. 2d 56; Smith v. Kingston City R. R. Co., 55 App. Div. 143, 169 N. Y. 616; Nichols v. Sixth Ave. R. R. Co., 38 N. Y. 131; Bente v. Metropolitan St. Ry. Co., 90 App. Div. 213, 180 N. Y. 519; McDonald v. Long Island R. R. Co., 116 N. Y. 546; Harris v. Brooklyn & Queens Tr. Corp., 249 App. Div. 749.) II. Assuming without conceding that the trial court erred in charging a very high or high degree of care, such error was harmless. (Whittacker v. Brooklyn, Queens Co. & S. R. R. Co., 110 App. Div. 767; Walsh v. Yonkers R. R. Co., 114 App. Div. 797; Rounds v. Fitzgerald, 207 App. Div. 534, 239 N. Y. 568; Barbato v. Vollmer, 273 App. Div. 169.)
   Fuld, J.

As plaintiff, an elderly lady, was alighting from one of defendant’s buses which had stopped to discharge her and other passengers, the driver closed the door before she had cleared it. As a result, one of her legs was caught and held fast by the door. The driver started the bus and plaintiff was pulled along for some feet, until, when the bus was braked to a halt and the door was opened, she fell to the ground and suffered serious injuries. The jury returned a verdict for plaintiff and the Appellate Division affirmed the resulting judgment. We are asked to reverse that judgment because, in submitting the case to the jury, the trial judge instructed that defendants owed plaintiff the duty of exercising “ a very high degree of care in transporting her, in letting her off, and in seeing that she is clear of anything that might bring .injury to her.” (Italics supplied.)

Negligence is defined, broadly and generally speaking, as the failure to employ reasonable care — the care which the law’s reasonably prudent man should use under the circumstances of a particular case. That being so, it may well be asked whether it is ever practicable for one to use more care than one reasonably can; whether it is ever reasonable for one to use less; or whether, in sum, there can ever be more than one degree of care. (See Pollock on Torts [14th ed.], pp. 352-353; Green, High Care and Gross Negligence, 23 Ill. L. Rev. 4; cf. O’Brien v. New York Rys. Co., 185 App. Div. 867, passim.) And, indeed, it has been said that to grade care into degrees, to differentiate between various degrees of care, is unscientific ”, “ most difficult of application ”, and perplexing alike to bench and bar.” (See, e.g., O’Brien v. New York Rys. Co., supra, 185 App. Div. 867, 870, 873.) All of this suggests a re-examination of those decisions wherein this court has upheld instructions by trial judges to the effect that a common carrier does, in certain situations, owe a “ high ”, a “ very high ” or the highest ” degree of care in transporting its passengers. (See, e.g., Stierle v. Union Ry. Co., 156 N. Y. 684, denying reargument 156 N. Y. 70; Palmer v. Delaware & Hudson Canal Co., 120 N. Y. 170; Maverick v. Eighth Ave. R. R. Co., 36 N. Y. 378; Keegan v. Third Ave. R. R. Co., 34 App. Div. 297, affd. 165 N. Y. 622.)

We are not, however, here called upon to embark on such a study, and we express no opinion upon the subject, since, in any event, defendants could not have been harmed by the charge in question.

Considered in the abstract, to announce a requirement that “ a very high degree of care ” was owed, implies the existence of a burden more onerous than the exercise of “ reasonable care.” However, when viewed and appraised in connection with the record before us, the instruction could not have influenced the jurors or affected their conclusion. Having in mind the facts adduced, the situation presented, the jury’s finding, implicit in its determination, that the door was shut before plaintiff had cleared it and that the bus was started before she had alighted, established a lack of care, no matter how assayed or evaluated. Consequently, since the very happening of the accident necessarily demonstrated that defendants failed to use any care whatsoever — since, in other words, the verdict of the jury necessarily imported the absence of any care at all — it follows that defendants could not have been prejudiced by the instruction given. (Cf. Whittacker v. Brooklyn, Queens Co. & S. R. R. Co., 110 App. Div. 767, 768; Barbato v. Vollmer, 273 App. Div. 169, 172.)

The judgment of the Appellate Division should be affirmed, with costs.

Loughran, Ch. J., Lewis, Coxway, Desmoxd, Dye and Froessel, JJ., concur.

Judgment affirmed.


author: Feoessel, J.

text:
    In the Matter of A. Bruder & Son, Inc. Juliet Bruder, Individually and as Administratrix of the Estate of Milton Bruder, Deceased, et al., Appellants; Bessie Bruder, Respondent, et al., Defendants.
    Argued October 12, 1950;
    decided November 30, 1950.

      George Trosk and Ephraim Berliner for appellants.
    I. Section 47 of the Stock Corporation Law provides that at stockholders ’ meetings every ‘ ‘ stockholder of record ’ ’ shall have one vote for each share “ standing in his name on the books of the corporation. ’ ’ Whatever right one may have, in a plenary action in equity, to establish his right to stock not standing in his name, it is settled that in a summary proceeding under section 25 of the General Corporation Law, to determine the validity of an election, the right to vote must be determined by the stock book, or, if there be none, by the stock certificate book, and equitable claims of one not there registered as a stockholder may not be recognized. (Matter of Argus Co., 138 N. Y. 557; Matter of D. J. Salvator, Inc., 268 App. Div. 919; Matter of Utica Fire Alarm Tel. Co., 115 App. Div. 821; Matter of Glen Salt Co., 17 App. Div. 234, 153 N. Y. 688; McNeil v. Tenth Nat. Bank, 46 N. Y. 325; Farmer v. Farmer & Son Type Founding Co., 83 App. Div. 218; Matter of Robert Clarke, Inc., 186 App. Div. 216; Matter of Ringler & Co., 204 N. Y. 30; Benkard v. Leonard, 231 App. Div. 625; Matter of Bloch v. Gershman, 272 App. Div. 218.) II. Bessie Bruder’s proxy to her attorney to vote five of the fifty shares claimed by her was revoked by her personal attendance and participation in the meeting, and his vote thereon was not entitled to be counted. Hence, even if Bessie were entitled to vote, only the forty-five votes cast by her personally were validly cast for her slate, and since forty-five valid votes were admittedly cast for Juliet’s slate, the result would be a tie. (Matter of Public Ind. Corp., 19 Del. Ch. 398; Matter of Schwartz & Gray, 77 N. J. L. 415; Bache v. Central Leather Co., 78 N. J. Eq. 484; Archibald v. Indian Territory Assn., 190 Okla. 494.)

      Abraham Burstein and Herbert Burstein for respondents.
    I. Bessie Bruder is the record stockholder of fifty shares of stock of A. Bruder & Son, Inc. (Wheeler v. Millar, 90 N. Y. 353; Matter of McCafferty, 147 Misc. 179; Robertson v. de Brulatour, 188 N. Y. 301; Brisbane v. Delaware, L. & W. R. R. Co., 94 N. Y. 204; Zander v. New York Security & Trust Co., 178 N. Y. 208.) II. The corporation and petitioner, Juliet Bruder, and Marjorie B. Minchenberg are estopped from questioning the ownership by respondent of fifty shares of stock of the corporation. (Matter of McCafferty, 147 Misc. 179; Kittredge v. Grannis, 244 N. Y. 168; Card v. Moore, 68 App. Div. 327, 173 N. Y. 598.) III. Petitioners have failed in their effort to sustain the petition. (Matter of Ringler & Co., 204 N. Y. 30; Matter of Prophet, 236 App. Div. 524; Matter of Strong v. Smith, 15 Hun 222, 80 N. Y. 637; Benkard v. Leonard, 231 App. Div. 625; Burr v. Wilcox, 22 N. Y. 551.) IV. Respondent is clearly a stockholder of record. (United States Radiator Corp. v. State of New York, 208 N. Y. 144.) V. The proxy given by Bessie Bruder to her attorney was never revoked.
   Feoessel, J.

We are asked to determine, in this summary proceeding under section 25 of the General Corporation Law, which, if any, of two opposing slates of directors was validly elected at a meeting of the stockholders of A. Bruder & Son, Inc., held on January 3, 1950.

The facts are virtually undisputed. So far as pertinent here, we are told that the corporate appellant was organized on December 2, 1930, with an authorized capital stock of one hundred shares. It acquired the pawnbroker’s business formerly conducted by Abraham Bruder, who died in 1943, and whose widow is the respondent Bessie Bruder. His son, Milton Bruder, who also died in 1943, was survived by his widow, Juliet, who is administratrix of his estate, and a daughter Marjorie. As sometimes happens, differences have arisen between Bessie Bruder and her daughter-in-law, Juliet.

The corporation had no stock book as required by section 10 of the Stock Corporation Law. It did have a stock certificate book which, at the time of the meeting in controversy here, disclosed that forty-five shares stood in the name of Juliet and fifty-five in the name of her deceased husband, Milton. On September 1, 1943, an agreement was entered into among the corporation, Bessie and Juliet; it unequivocally recites that Bessie owns fifty shares of stock in the corporation and Juliet forty-five. It provides, among other things, that Juliet and Bessie are to have equal representation on the board, and that the by-laws are to be amended to provide four instead of three directors. This of course could not be done without first changing the certificate of incorporation, which has not been done. On the same date, a second agreement was entered into among Bessie, Juliet and her daughter, Marjorie. It declared their intention that the property involved herein be distributed in accordance with the true ownership thereof.” It further provides that Bessie will become the owner of ninety-five shares of stock in said corporation, forty-five shares of which she will turn over to Juliet.

The records of the corporation also disclose that corporate dividends were paid to Bessie, Juliét and Marjorie on the basis of fifty, forty-five and five shares respectively in 1947 and 1948. While Marjorie was not a stockholder according to the stock certificate book, it is virtually conceded that she was regarded as the owner of the five shares still in the name of her father, Milton. The corporate records likewise disclose that Bessie, Juliet and Marjorie participated in and voted at a stockholders’ meeting held on December 11, 1948, and that the parties recognized the ownership of the corporation’s stock as aforesaid in miscellaneous statements and pleadings in other actions between them.

From the foregoing it appears (1) that the corporation had no stock book listing its stockholders; (2) that according to its stock certificate book the outstanding shares at the time of the meeting in controversy were held as follows: Juliet, forty-five shares, her deceased husband, fifty-five shares, and (3) that according to the agreements among the parties and the corporation, the dividend checks and minutes of the corporation, and admissions in miscellaneous actions between them, the actual ownership of the outstanding shares was as follows: Bessie, fifty shares; Juliet, forty-five shares; Marjorie, five shares.

We now come to the meeting of January 3, 1950, when the parties sought to elect a slate of directors. Juliet’s forty-five shares and Milton’s fifty-five shares were voted for her slate of three directors; Bessie thereupon voted her fifty shares for a different slate of directors. Thereupon, Juliet instituted this proceeding for the purpose of confirming the election of her slate; Bessie cross-moved for a dismissal of Juliet’s application and for an order confirming the election of her own slate.

The Appellate Division, in affirming the court below, which confirmed the election of Bessie’s slate, stated that it was “ in agreement that Bessie Bruder was a stockholder of record entitled to vote in person or by proxy her fifty shares of stock.” (277 App. Div. 871.)

Section 47 of the Stock Corporation Law provides for the qualifications of voters at corporate meetings. It declares that every stockholder is entitled to “ one vote for every share of stock standing in his name on the books of the corporation.” It then provides: “ The books and papers containing the list of stockholders shall be produced at any meeting of the stockholders upon the request of any stockholder. If the right to vote at any such meeting shall be challenged, the inspectors of election, or other person presiding thereat, shall require such books, if they can be had, to be produced as evidence of the right of the person challenged to vote at such meeting, and all persons who may appear from such books to be stockholders of the corporation entitled to vote may vote at such meeting in person or by proxy, subject to the provisions of this chapter.”

The “ books and papers containing the list of stockholders ” to which the section refers are, in the first instance, the stock book required to be kept by section 10 of the Stock Corporation Law, or in its absence any other record containing equivalent information, i.e., a list of stockholders, such as the stock certificate book (Matter of Utica Fire Alarm Tel. Co., 115 App. Div. 821, 828), corporate agreements, etc. The obvious purpose of the statute, to facilitate the conduct of corporate affairs and make for certainty therein, dictates that where there is a stock book, such record is ordinarily conclusive as to the right to vote (Matter of Argus Co., 138 N. Y. 557, 579, 581; Matter of D. J. Salvator, Inc., 268 App. Div. 919; Matter of Robert Clarke, Inc., 186 App. Div. 216; Matter of Utica Fire Alarm Tel. Co., supra). This is particularly so in a proceeding of this nature, which is summary and therefore inappropriate for the determination of questions properly triable only by plenary action, such as actual or equitable ownership (Matter of Robert Clarke, Inc., supra, p. 221; Farmer v. Farmer & Son Type Founding Co., 83 App. Div. 218, 225-226). Since, however, the true ownership of the stock is clearly conceded in this case, we have no such problem here.

In the light of the foregoing and in the absence of a stock book, we agree with the Appellate Division that Bessie Bruder was a stockholder of record entitled to vote in person or by proxy her fifty shares of stock, previously issued to Milton. There is no dispute that Juliet Bruder was entitled to vote her forty-five shares of stock. However, as to the remaining five shares standing in the name of Milton (that is, fifty-five less Bessie’s fifty), said to be owned by Marjorie but not of record ” because they were not embraced in the 1943 agreements, we are of the opinion that they were properly voted in the name of Milton’s estate by Juliet, his administratrix, and for her slate of directors. Under these circumstances, Juliet’s slate had fifty votes and Bessie’s had fifty votes, resulting in' a tie.

On this record, therefore, we conclude that the Appellate Division erred as matter of law in failing to give effect to the five votes which it said Marjorie owned, but not of record, and which actually stood in Milton’s name. It follows that the election of directors resulted in a tie vote and that no directors were elected.

Accordingly, the orders of the Appellate Division and Special Term should be reversed, and the petition and cross petition dismissed, without costs.

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

Ordered accordingly.


author: Desmond, J.

text:
    The People of the State of New York, Appellant, v. Anna Chesnick, Respondent.
    Submitted, October 13, 1950;
    decided November 30, 1950.

      Miles F. McDonald, District Attorney (David Diamond of counsel), for appellant.
    I. Section 722 of the Penal Law does not require that the acts constituting disorderly conduct be committed in a public place. (People v. Gertner, 124 Misc. 114; People v. Katz, 135 Misc. 336; People v. Perry, 265 N. Y. 362; People v. Monnier, 280 N. Y. 77.) II. The hall of a six-family building is a public place. (Multiple Dwelling Law, § 4, subd. 17.)

      Louis J. Jacobson for respondent.
    I. The information was insufficient upon the face thereof. (People v. Huyck, 171 Misc. 467; Shappee v. Curtis, 142 App. Div. 155; McKelvey v. Marsh, 63 App. Div. 396; People v. Williams, 135 Misc. 564; People v. Knapp, 152 Misc. 368; People v. Lindner, 133 Misc. 728.) II. The hall of a six-family building is not a public place. (People v. Whitman, 178 App. Div. 193; People v. Reid, 40 N. Y. S. 2d 793; People v. Dale, 47 N. Y. S. 2d 702.)
   Desmond, J.

Defendant, after a trial before a New York City magistrate, was convicted of the offense of disorderly conduct. The charge was laid under subdivisions 1 and 2 of section 722 of the Penal Law:

“ § 722. Disorderly conduct. Any person who with intent to provoke a breach of the peace, or whereby a breach of the peace may be occasioned, commits any of the following acts shall be deemed to have committed the offense of disorderly conduct:

“ 1. Uses offensive, disorderly, threatening, abusive or insulting language, conduct or behavior;

2. Acts in such a manner as to annoy, disturb, interfere with, obstruct, or be offensive to others

The testimony for the prosecution was that defendant, one of the tenants in a six-family apartment building, went to the door of one of the other apartments and, standing in the hallway, delivered herself of various objurgations and imprecations, some of them in obscene language, and all spoken to, and concerning, the two occupants of that other apartment. Another tenant testified that about the same time he heard similar vocal violence from defendant, who was then on one of the stairways of the building.

The appellate court reversed the conviction. We agree that defendant’s conduct did not rise (or fall) to the level required by the statute quoted above. Of course, what she did was in fact disorderly and did interfere with the peace and quiet of some of the occupants of the dwelling. But the disturbance was a private, not a public one, and three persons only appear to have heard the tirade.

The key phrase of the statute is “ breach of the peace ” and, traditionally, that language means a violation of public order and tranquility (see 5 Words and Phrases, p. 763 et seq.; Black’s Law Dictionary [3d ed.], p. 246; Restatement, Torts, § 116; Personal Property Law, § 76). The classic definition, in modern times, of “ breach of the peace ” is given by People v. Most (171 N. Y. 423, 429): “ It is a disturbance of public order by an act of violence, or by any act likely to produce violence, or which, by causing consternation and alarm, disturbs the peace and quiet of the community.” “ The offense known as breach of the peace embraces a great variety of conduct destroying or menacing public order and tranquility ” (Cantwell v. Connecticut, 310 U. S. 296, 308). And so, to constitute “ disorderly conduct ” there must be an actual or threatened “ breach of the peace ”, which, in turn, means a “ disturbance of the tranquility of the People of the State ” (People v. Perry, 265 N. Y. 362, 365). Here there was no troubling of the wonted calm of the whole community, or of any sizeable segment thereof.

‘ ‘ It is difficult to define exactly and comprehensively the kind of conduct which ‘ tends to a breach of the peace ’ ” (People v. Nixon, 248 N. Y. 182, 185), and no such difficult task will be attempted herein. We wish to make it clear, however, that we are not holding that the offense of disorderly conduct cannot be committed inside a building. Indeed, section 722 itself, in its fifth subdivision, lists, as one kind of disorderly conduct, shouts or noisemaking “ either outside or inside a building during the night time to the annoyance or disturbance of any considerable number of persons ”. Nowadays, many a large multiple dwelling houses a considerable number of persons ”, and it is easy to imagine, within such a building, disorder which might seriously interfere with public peace. So, the test is not whether the activity complained of was indoors or outdoors, but whether it had in it the traditional elements of an actual or likely “ breach of the peace ”, as that ancient phrase has usually been construed.

The order should be affirmed.

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

Order affirmed.


author: Froessel, J. Fuld, J.

text:
    Bristol-Myers Company, Appellant, v. Irving Picker et al., Copartners Doing Business under the Name of Picker Pharmacy, Respondents.
    Argued October 18, 1950;
    decided November 30, 1950.

      Gilbert H. Weil and Isaac W. Digges for appellant.
    I. Respondents violate appellant’s fair trade prices when they sell appellant’s products fair-traded at $10.25 for only $10. Similarly, they violate appellant’s fair trade rights when they deliver to their customers, in exchange for the fair trade price of appellant’s products, not only the products themselves but also cash receipts which have a redemption value in respondents’ store and elsewhere of 2%% of the fair trade prices. II. Respondents’ underselling of appellant’s fair trade prices does not come within any of the exceptions to the Fair Trade Law cited in subdivision 2 of section 369-a of the General Business Law and is therefore a violation of that law. (Weco Products Co. v. Mid-City Cut Rate Drug Stores, 55 Cal. App. 2d 684;
      Bristol-Myers Co. v. Lit Bros., Inc., 336 Pa. 81; Guerlain, Inc., v. Woolworth Co., 297 N. Y. 11; Rast v. Van Deman & Lewis Co., 240 U. S. 342.) III. The motive with which the price cutting is done is immaterial. (Weco Products Co. v. Mid-City Cut Rate Drugstores, 55 Cal. App. 2d 684; Bristol-Myers Co. v. Lit Bros., Inc., 336 Pa. 81; Food & Grocery Bureau v. Garfield, 20 Cal. 2d 228.) IV. Cases declaring statutes to he unconstitutional which outlaw trading stamps have no application here.

      Charles Green Smith, Frances Kneitel, William S. Beinecke and Constantine Mittendorf for respondents.
    I. Cash register receipts are similar in principle to trading stamps. (Benjamin v. Palan Drug Co., 275 App. Div. 1036; Nechamkin v. Picker, 189 Misc. 61.) II. Trading stamps have been universally-recognized as a means of affording retail cash customers a discount for the payment of cash. (Winston v. Beeson, 135 N. C. 271; Ware v. Sperry & Hutchinson Co., 197 Ky. 394; State v. Holtgreve, 58 Utah 563; Ex parte Drexel, 147 Cal. 763; Sperry & Hutchinson Co. v. Siegel Cooper & Co., 225 Ill. App. 540, 309 Ill. 193.) III. The use of a cash discount system in connection with the retail sale of articles at fair trade minimum prices does not reduce prices and does not violate the Fair Trade Law. (Bristol-Myers Co. v. Lit Bros., Inc., 336 Pa. 81; Food & Grocery Bureau v. Garfield, 20 Cal. 2d 228; Weco Products Co. v. Mid-City Cut Rate Drug Stores, 55 Cal. App. 2d 684; Benjamin v. Palan Drug Co., 194 Misc. 879, 275 App. Div. 1036.) IV. If the New York Fair Trade Act be construed to prohibit cash discounts on retail sales of minimum priced articles, it is unconstitutional in that it violates the Fourteenth Amendment to the Federal Constitution and section 6 of article I of the State Constitution. (Old Dearborn Distr. Co. v. Seagram-Distillers Corp., 299 U. S. 183; Doubleday, Doran & Co. v. Macy & Co., 269 N. Y. 272; Guerlain, Inc., v. Woolworth Co., 297 N. Y. 11; Sperry & Hutchinson Co. v. McBride, 307 Mass. 408.)
   Froessel, J.

This appeal presents to us a merchandising plan originated and extended by defendants-respondents, the legality of which we are to determine in the light of article XXIV-A of the General Business Law, more commonly referred to as the Fair Trade Law,

Plaintiff-appellant is a manufacturer and distributor of well-known drug products and cosmetic articles which it sells under distinctive trade-marks. It has expended large sums of money advertising and selling its trade-marked products, and has established a valuable reputation and good will for them. To protect that good will it has established minimum retail prices for its products, pursuant to sections 369-a to 369-e of the General Business Law, and fulfilled all the requisites to their fair trading. Defendants had not themselves entered into any fair trade contract with plaintiff, but knew of the existence of said agreements and the minimum resale prices stipulated therein.

Defendants operate a retail drugstore as copartners in Lynbrook, Nassau County, New York, where they sell, among other things, appellant’s products. They originated the merchandising plan in question prior to the passage of the Pair Trade Law, and some thirteen or fourteen years prior to the time of the trial, which took place in 1948. Cash register receipts, which were originally redeemed in specified articles of merchandise (called “ presents and gifts ”), were later redeemed in trade from defendants’ merchandise, whether fair-traded.or not, at the rate of 2%% of cash purchases (no others are made), when they aggregated $10 or more.

As a result of the alleged competition offered by department stores in surrounding communities (not Lynbrook proper), defendant and fourteen other merchants in their area formed a Dividend Club ” in 1947. Defendants’ plan was thereupon extended to these , other stores, so that each member redeemed his own receipts as well as those issued by any other member, and monthly adjustments were made. The customer, upon accumulating $10 worth of the receipts from any of these stores, could then redeem them therein, at a value of twenty-five cents, in merchandise, whether fair-traded or not, ranging through children’s wearing apparel; coats, suits, dresses; curtains and draperies; drugs and cosmetics; fruits and vegetables; gifts and greeting cards; gasoline, oil and filling station services; hardware and appliances; jewelry; ladies’ specialties; meats; men’s haberdashery; occasional furniture and lamps; rugs and linoleum; stockings and sportswear.

Section 369-a of the General Business Law provides for price-fixing of certain commodities, excluding from its operation, however, several situations unrelated to this case (§ 369-a, subds. 2, 3; § 369-c). Section 369-b provides as follows: “ Wilfully and knowingly advertising, offering for sale or selling any commodity at less than the price stipulated in any contract entered into pursuant to the provision of section three hundred sixty-nine-a, whether the person so advertising, offering for sale or selling- is or is not a party to such contract, is unfair competion and is actionable at the suit of any person damaged thereby. ’ ’

Simply stated, we are to determine whether the issuance of cash register receipts in accordance with the foregoing plan, redeemable in merchandise at 2%% of the purchase price, in conjunction with the sale of plaintiff’s fair-traded products, constitutes price cutting, and, if so, is such price cutting the unfair competition contemplated by the Fair Trade Law. Special Term, adopted the view that defendants’ practice amounted to price cutting in violation of the law; the Appellate Division adopted the contrary view. We have not passed upon this situation before.

Much of the resale price maintenance legislation appears to have been stimulated by the decision in Schechter Poultry Corp. v. United States (295 U. S. 495 [1935]). Considerable discussion and controversy have ensued over the economic implications of such laws, which are now in force in most of the States of the Union. The Miller-Tydings Enabling Act has removed from the interdict of the Federal anti-trust and unfair competition laws resale price maintenance agreements which are valid in the State of resale (U. S. Code, tit. 15, § 1). Our statute was copied after its California prototype, which was aimed principally at the vicious “ loss leader ” type of competition prevalent in the mid-thirties. (See Shulman, The Fair Trade Acts and the Law of Restrictive Agreements Affecting Chattels, 49 Yale L. J. 607, 613-616.)

In any event, the validity of the statutes as against constitutional objections is founded upon the protection which they are deemed to afford the manufacturer as the owner of the brand name of trade-marked merchandise (Bourjois Sales Corp. v. Dorfman, 273 N. Y. 167; Old Dearborn Distr. Co. v. Seagram-Distillers Corp., 299 U. S. 183). Accordingly, a manufacturer, such as plaintiff, would seem to possess the prime right to enforce the minimum price set by it, and the statute extends its protective provisions to encompass persons who are not parties to the resale maintenance agreements, so that such enforcement may be had against a nonsignatory retailer (General Business Law, § 369-b; Port Chester Wine & Liquor Shop v. Miller Bros., 281 N. Y. 101).

Plaintiff claims that defendants violate the farmer’s fair trade rights when they deliver to their customers, in exchange for the fair trade price of plaintiff’s products, not only the products themselves, but also cash receipts which have a redemption value in defendants’ store and elsewhere of 2%% of the fair trade prices. Defendants, on the other hand, maintain that the system employed by them is a legitimate competitive method. Defendants further contend that if our Fair Trade Law be construed to prohibit cash discounts on retail sales of minimum priced articles, it violates the Fourteenth Amendment to the Constitution of the United States and section 6 of article I of our State Constitution.

In support of their contention that there is no violation of the Fair Trade Law defendants cite from two other jurisdictions: Bristol-Myers Co. v. Lit Bros., Inc. (336 Pa. 81 [two judges dissenting]); Food & Grocery Bureau v. Garfield (20 Cal. 2d 228); Weco Products Co. v. Mid-City Cut Rate Drug Stores (55 Cal. App. 2d 684 [hearing denied — one judge dissenting]). The rationale of these decisions, which were concerned with “ trading stamps ” and not cash register receipts, appears to be that the seller’s motive was not to cut the price but rather an advertising device to attract customers or to reward cash payments, and that in any event the rule de minimis non curat lex applies. The difficulty with these views is that the situation here presented is not among the several excluded by the Legislature from the operation of the statute. As to motive, defendants’ counsel at the trial frankly conceded: “ Obviously, if it violates the Fair Trade Law, it does not matter what its purpose was.” Of course the plan challenged is an advertising lure, and cash discounts are “ an inducement to customers to attract them to his store ” (Weco Products Co. v. Mid-City Cut Rate Drug Stores, supra, p. 687), but so is any violation of the Fair Trade Laws. The greater the discount or price cut, the greater the lure. By allowing a breach, no matter how small, we invite the flood, and unless the Legislature decrees the exception, we arc powerless to allow it.

Considered as a method of advertising, the challenged scheme must be differentiated from types of service such as free parking, self-service, care of infants, entertainment, free delivery and the like, with which we are not presently concerned. These other types of service have no direct relation to the article purchased or the price paid. They are completely separated and too remote from the pricing element to come within the statute’s prohibition. Here the benefit to the customer is directly, proportionately, inseparably and specifically related to the article purchased and its price.

Assuming that there is no essential difference between the use of trading stamps and cash register receipts which are redeemable, and that either may be regarded as a form of cash discount, I nevertheless cannot agree with the opinions in the cases cited that such a discount does not cut the sale price of an article. No matter how one puts it, the consumer who is accorded a cash discount in reality pays that much less for the article which he purchases, and this is none the less true because the return is by way of merchandise rather than coin which may purchase merchandise. When defendants sold plaintiff’s products at fair trade prices, and as a part of the same transaction gave their customers cash register receipts having a redemption value of 2%% °f such fair trade prices, they, in effect, sold plaintiff’s products at 2y2°/o less than the prices fixed. I can see no distinction between returning to the customer a credit memorandum of 2%% and giving him a cash register receipt. And whether the discount is small or large makes no difference — the statute forbids both.

Defendants here agree that if the customer purchased $10 worth of plaintiff’s products, he would immediately receive, on request and for nothing, any fair-traded article he desired and which was priced at twenty-five cents. If a retailer may allow 2y2% under the statute, a competitor may follow the same plan but instead allow 5%, inviting retaliation with an even greater allowance. Where may it end? The same cutthroat competition sought to he avoided by the Fair Trade Law could thus be revived under the so-called cash discount system.

The argument that the giving of a cash discount is an accepted form of doing business on the retail level, and for that reason constitutes an implied exception to the statute, is without weight, for prior to the passage of the Fair Trade Law it was also an accepted form of business for a merchant to sell at any price he chose; it is those very practices that the act sought to interdict. It should be noted in passing that' there is no eiddence in this record of any custom or practice of giving cash discounts among retailers, although it is common knowledge that such is a customary practice as between wholesalers and retailers. In any event, the Legislature has not sanctioned such discounts in the Fair Trade Law. It could well have provided for this exception as it has others (General Business Law, § 369-a, subds. 2, 3; § 369-c), and as it has in the Alcoholic Beverage Control Law (§‘ 101-b, subd. 2, par. [b]), which expressly permits a discount of 1% to the retailer for prompt payment. It has not done so, and we are not authorized to read such an exception into the Fair Trade Law.

While we have not passed upon the question here presented, the Appellate Divisions in the First and Second Departments have done so. In Palmer v. Angert (275 App. Div. 965), the Appellate Division, Second Department, held that the practice of redeeming cash register receipts is a price cutting device. In the First Department, the court arrived at the contrary conclusion in Benjamin v. Palan Drug Co. (275 App. Div. 1036), involving trading stamps, but wrote no opinion. And when the instant case came before it, again no opinion was written, but it merely reversed Special Term and cited the Benjamin case. However, the basis for its reversal is indicated by its eleventh finding of fact contained in the order of reversal, the first portion of which reads as follows: 11 Allowance of said cash discounts has not reduced the minimum resale price of any commodity ”. As hereinbefore indicated, I cannot agree that $10.25 equals $10; the defendants’ plan, however, designated, in effect, simply reduced the minimum resale price by 2y2%.

As to the remaining portion of said finding, namely, that the allowance of such discounts has not injured the goodwill value of any article of plaintiff’s merchandise ”, I am of the opinion that the Appellate Division also clearly erred. The Fair Trade Law unqualifiedly provides that price cutting fair trade articles in and of itself is unfair competition. We have heretofore recognized that the primary legislative aim is to protect the good will of the trade-mark owner, and that when a commodity which bears a brand name is resold for less than the minimum price specified in the fair trade contracts, such conduct ” is a violation ” of the plain mandate of the Fair Trade Act, and “ is properly restrained by injunctive relief ” (Guerlain, Inc., v. Woolworth Co., 297 N. Y. 11,17,19). As was said in Old Dearborn Distr. Co. v. Seagram-Distillers Corp. (supra, p. 195) the act does not prevent a purchaser of the commodity bearing the mark from selling the commodity alone at any price he pleases. It interferes only when he sells with the aid of the good will of the vendor; and it interferes then only to protect that good will against injury. It proceeds upon the theory that the sale of identified goods at less than the price fixed by the owner of the mark or brand is an assault upon the good will, and constitutes what the statute denominates ‘ unfair competition.’ ”

The “ assault upon the good will ” is the injury or damage resulting from the unfair competition, and is actionable under the statute even though proof of specific money damages is not supplied; in other words, injury to good will, actual or threatened, lies at its base. In Westcott Chuck Co. v. Oneida Nat. Chuck Co. (199 N. Y. 247, 251) in an action to restrain unfair competition, we said in effect that even in an action at law proof of actual damage is necessary only to justify more than a nominal recovery. But this is an action in equity and does not require a showing of specific money damage to support an injunction (Calvert Distillers Corp. v. Nussbaum Liquor Store, 166 Misc. 342, 347; Saxlehner v. Siegel-Cooper Co., 179 U. S. 42; Champion Spark Plug Co. v. Sanders, 331 U. S. 125, 131; Straus v. Notaseme Hosiery Co., 240 U. S. 179; 2 Nims, Unfair Competition and Trade-Marks [4th ed.], p. 1381; 52 Harv. L. Rev. 293). To hold otherwise would defeat the purpose of the statute. Insofar, therefore, as it involves an issue of fact, we are authorized to reverse Appellate Division finding number eleven, and to reinstate the findings of the trial court reversed by the Appellate Division (Civ. Prac. Act, § 605).

In summary, then, plaintiff has fully sustained the burden of proof. We are all agreed that cash register receipts have value that reduce the cost of the branded goods and that there is in consequence a mathematical reduction in the selling price, and the majority agree that this is price cutting. That this was done knowingly is beyond dispute, for it is axiomatic that one intends the natural consequences of his own acts, and in this case the members of defendants’ club were keenly aware of what they were doing, as evidenced by their failure to invite any competitors to join with them. Moreover, the statute does not require a showing of motive or wilful intent to injure, but merely — what has been abundantly shown here — wilfully and knowingly selling at any reduced price. Such selling is an assault upon the good will ” and constitutes “ unfair competition the manufacturer whose good will is thus assaulted is thereby damaged, and is entitled to injunctive relief to prevent continuing damage.

• Defendants have also raised the constitutional argument that to prohibit cash discounts on retail sales of minimum priced articles violates due process, in that such a practice has no relation to the only constitutional object of the statute, the protection of good will. Such an argument assumes that the practice in question has no effect on good will because it did not result in price cutting, and I think it is clear that this is not so. The regulation of otherwise legitimate practices in the valid exercise of police power, which has here been sustained (Bourjois Sales Corp. v. Dorfman, supra; Old Dearborn Distr. Co. v. Seagram-Distillers Corp., supra), must be distinguished from absolute prohibition of legitimate trade devices or from regulation unconnected with any proper object (People v. Gillson, 109 N. Y. 389; Sperry & Hutchinson Co. v. McBride, 307 Mass. 408). The Pair Trade Law constitutes a lawful limitation upon the doctrine of freedom of contract (see Guerlain, Inc., v. Woolworth Co., supra).

In the light of the foregoing, it is my view that the weight of the evidence lies with the finding of Special Term that the practice complained of does constitute price cutting, and the Appellate Division was in error on the law when it held that such practice is not within the prohibition of our Fair Trade Law. Accordingly, the judgment of the Appellate Division should be reversed and that of Special Term affirmed, with costs in this court and in the Appellate Division.

Fuld, J.

(dissenting). The present decision stigmatizes as unfair competition a long-established business practice, a practice untainted by deceit, oppression or unfair dealing and involving no assault upon the good will of the manufacturer. Beaching the result which it has, on the basis of a strained construction of the Fair Trade Law, the court turns a statute designed to promote fair trade into an unfair instrument suppressing honorable and decent competition and outlawing reasonable merchandising methods.

Since defendants entered into no fair trade agreement with plaintiff, we are not here concerned with the validity of any contractual arrangements that the manufacturer may make with those dealers whom it selects to handle its products. The statutory action of unfair competition — upon which plaintiff must of necessity rely — sounds in tort, not contract, and the statute expressly classifies that tort as a wilful one. Its primary objective is to prevent wilful assaults upon the manufacturer’s good will (see, e.g., Old Dearborn Distr. Co. v. Seagram-Distillers Corp., 299 U. S. 183, 193) — or, to phrase it as the majority opinion does (p. 66), the legislation was aimed principally at the vicious loss leader ’ type of competition prevalent in the mid-thirties.” It does not, as the majority asserts, unqualifiedly provide that price cutting fair trade articles in and of itself is unfair competition ” (p. 70). On the contrary, damage is expressly made the gist of the claim as in actions on the case at common law. Thus, the statute makes “ actionable ” but only “ at the suit of any person damaged thereby ” the act of Wilfully and knowingly * * * selling any commodity at less than the price stipulated ” in any fair trade agreement (General Business Law, § 369-b; emphasis supplied). To spell out a cause of action, therefore, a plaintiff must show (1) that there have been sales below the stipulated price, (2) that such sales were made wilfully and knowingly, and (3) that plaintiff has suffered or is likely to suffer legal damage. To obtain injunctive relief, as is sought in this case, plaintiff in addition must satisfy the traditional requirements of a court of equity and show, among other items, the likelihood of irreparable harm. In short, price cutting is condemned only when it is wilful, when it is injurious to the manufacturer’s good will or when it otherwise causes injury to plaintiff.

Consideration of the record before us demonstrates that no one of those essential requirements of proof has been met. All sales of plaintiff’s branded merchandise have been at the stipulated price. There has been no price cutting whatever in the conventional sense. The merchandising plan here challenged by plaintiff is of general application and is neither directed at, connected with, nor limited to plaintiff’s fair-traded articles. Cash receipts are issued on all sales of goods, whether or not fair-traded, redeemable in any articles handled in defendants’ store and in the fourteen other stores, in the Lynbrook area, which constitute the Lynbrook Dividend Club. The receipts may be exchanged for either branded or unbranded articles at the rate of twenty-five cents of merchandise for $10 of cash receipts. Most of the products sold in this group of stores are unbranded and hence not subject to the provisions of the Fair Trade Law. As analysis thus makes evident, there is lacking proof of any wilful assault upon, or injury to, plaintiff’s good will or of any misuse of its trade-marks. And not only is there no showing of irreparable harm, but there is not a scintilla of evidence that defendants’ use of cash receipts has produced or is likely to cause plaintiff any damage whatsoever. As the Appellate Division found — and I find no warrant for overturning the finding — ‘ ‘ Allowance of said cash discounts has not reduced the minimum resale price of any commodity, and has not injured the goodwill value of any article of plaintiff’s merchandise.” The conclusion is, therefore, inescapable that plaintiff has failed either to establish a case of unfair competition within the meaning of the statute or to sustain its right to injunctive relief.

To be sure, the cash receipts have value. Those purchasers who accumulate the necessary amount can convert them into merchandise and thus reduce the cost of the branded and unbranded goods which they have purchased. They are the beneficiaries of a cash discount on all their purchases whenever they avail themselves of the advantages of this plan. It cannot be denied, therefore, that there is a mathematical reduction of the selling price of branded goods. But, the question arises, does such reduction under the special circumstances disclosed by this record constitute wilful price cutting injurious to the manufacturer’s good will? In my view, it does not.

The use of cash receipts and trading stamps and the granting of cash discounts long antedated fair trade legislation. Defendants have been issuing cash receipts for some thirteen or fourteen years. There is not the slightest evidence that it was the legislature’s design to outlaw such normal and long-established business practices of general application. It is an unwarranted extension of the Pair Trade Law to hold that what defendants are doing renders them guilty of unfair competition and such, I note, is the conclusion of the courts of other states in dealing with the cognate problem of trading stamps. (See Weco Products Co. v. Mid-City Cut Rate Drug Stores, 55 Cal. App. 2d 684; Food & Grocery Bureau v. Garfield, 20 Cal. 2d 228; Bristol-Myers Co. v. Lit Bros., Inc., 336 Pa. 81.) In sanctioning the use of such devices, we would not be engrafting an additional exception upon the statute. Bather, we would be holding merely that there has not been a wilful sale at less than the stipulated price, which causes or is likely to cause damage to the manufacturer’s good will.

Nor need we concern ourselves with the hypothetical possibility of trade wars involving unwarrantedly high cash discounts or of merchandising plans specifically directed against the fair-traded products of a manufacturer. Courts are not powerless to deal with obvious subterfuges. (See Guerlain, Inc., v. Woolworth Co., 297 N. Y. 11.) There is time to deal with such situations when they are presented by a “ person damaged thereby ” (G-eneral Business Law, § 369-b). It is enough for the disposition of this case that there is here a complete failure of proof not alone of any subterfuge but of all of the essential ingredients of a statutory action for unfair competition.

Lewis, Conway, Desmond and Dye, JJ., concur with Froessel, J.; Fuld, J., dissents in opinion in which Loughran, Ch. J., concurs.

Judgment accordingly.


author: Per Curiam.

text:
    The People of the State of New York, Respondent, v. Sam Friedman, Appellant. The People of the State of New York, Respondent, v. Sam Praska, Appellant.
    Argued October 16, 1950;
    decided December 1, 1950.

      Leo Pfejfer and Will Maslow for appellants.
    I. Section 2147 of the Penal Law should be read together with section 2144 to exempt those observing a day other than Sunday as their day of rest. (People v. Adler, 174 App. Div. 301; People v. Rudnick, 259 App. Div. 922; Anonymous, 12 Abb. N. C. 455; Martin v. Goldstein, 20 App. Div. 203; People v. Bellet, 99 Mich. 151; Story v. Elliott, 8 Cow. 27; Smith v. Wilcox, 19 Barb. 581, 24 N. Y. 353; Isaacs v. Beth Hamedash Soc., 1 Hilt. 469; Moore v. Owen, 58 Misc. 332; Krieger v. State, 12 Okla. Cr. 566; State v. Chesney, 29 Okla. Cr. 251.) II. If article 192 of the Penal Law is not construed to exempt those observing a day other than Sunday as holy time, it must be declared an unconstitutional law respecting an establishment of religion. (Everson v. Board of Educ. of Township of Ewing, 330 U. S. 1; Illinois ex rel. McCollum v. Board of Educ., 333 U. S. 203; Petit v. Minnesota, 177 U. S. 164; People v. Dunford, 207 N. Y. 17; People v. Havnor, 149 N. Y. 195; Dollar Co. v. Canadian Car & Foundry Co., 220 N. Y. 270; Sears, Roebuck & Co. v. Ninth Ave.-31 St. Corp., 274 N. Y. 388; People ex rel. Rice v. Graves, 242 App. Div. 128; Rumsey v. New York & N. E. R. R. Co., 133 N. Y. 79; Campbell v. International Life Assur. Soc., 4 Bosw. 298; Matter of Rupp, 33 App. Div. 468; Soon Hing v.
      Crowley, 113 U. S. 703.) III. If article 192 of the Penal Law is not construed to exempt those observing a day other than Sunday as holy time, it must be declared an unconstitutional law prohibiting the free exercise of religion. (Cantwell v. Connecticut, 310 U. S. 296; Murdock v. Pennsylvania, 319 U. S. 105; Follett v. Town of McCormick, 321 U. S. 573; Reynolds v. United States, 98 U. S. 145; Davis v. Beason, 133 U. S. 333; Chaplinsky v. New Hampshire, 315 U. S. 568; Prince v. Massachusetts, 321 U. S. 158.) IV. Section 2147 unconstitutionally denies defendants and others similarly situated the equal protection of the laws and deprives them of their liberty and property without due process of law in violation of the Fourteenth Amendment of the Federal Constitution and section 11 of article I of the New York Constitution. (McPherson v. Blacker, 146 U. S. 1; Skinner v. Oklahoma ex rel. Williamson, 316 U. S. 535; Myer v. Myer, 271 App. Div. 465, 296 N. Y. 979; Goesaert v. Cleary, 335 U. S. 464; Borden’s Farm Products Co. v. Baldwin, 293 U. S. 194; Noyes v. Wohl, 266 App. Div. 52, 291 N. Y. 695; Jones v. Union Guano Co., 264 U. S. 171; Gulf, Colorado & Santa Fe Ry. Co. v. Ellis, 165 U. S. 150; Binney v. Long, 299 U. S. 280; Bayside Fish Flour Co. v. Gentry, 297 U. S. 422.) V. Article 192 has been arbitrarily and discriminatorily enforced against defendants and others similarly situated in violation of the Fourteenth Amendment of the Federal Constitution and section 11 of article I of the New York Constitution. (Shelley v. Kraemer, 334 U. S. 1; Yick Wo v. Hopkins, 118 U. S. 356; McCabe v. Atchison, Topeka & S. F. Ry. Co., 235 U. S. 151.)

      Will Maslow and Joseph B. Robison for American Jewish Congress and others, amici curiae, in support of appellants’ position.
    The Sabbaths of the Christian, Jewish and other religions have equal standing under American tradition and constitutional principles which recognize the right of all men to worship God in their own way and to observe the Sabbath ordained by their religions. (Krieger v. State, 12 Okla. Cr. 566; Marsh v. Alabama, 326 U. S. 501; Thomas v. Collins, 323 U. S. 516; West Virginia State Bd. of Educ. v. Barnette, 319 U. S. 624.)

      Frank E. Karelsen, Jr., Mary Gardiner Jones and Richard H. Baker for American Civil Liberties Union, amicus curiae, in support of appellants’ position.
    Section 2147 of the Penal Law, as construed by the court below, violates the religious freedom provisions of the First and Fourteenth Amendments of the United States Constitution. (West Virginia State Bd. of Educ. v. Barnette, 319 U. S. 624; Cantwell v. Connecticut, 310 U. S. 296; Butchers Union Co. v. Crescent City Co., 111 U. S. 746; Truax v. Raich, 239 U. S. 33; Murdock v. Pennsylvania, 319 U. S. 105; Follett v. Town of McCormick, 321 U. S. 573.)

      Frank S. Hogan, District Attorney (Edwin C. Hoyt, Jr., of counsel), for respondent.
    I. Section 2147 is constitutional. The Sunday law is a valid health measure and does not impair religious liberty. (People v. Havnor, 149 N. Y. 195; Silverberg Bros. v. Douglass, 62 Misc. 340; Hennington v. Georgia, 163 U. S. 299; Soon Hing v. Crowley, 113 U. S. 703; Lindenmuller v. People, 33 Barb. 548; Commonwealth v. Has, 122 Mass. 40; Petit v. Minnesota, 177 U. S. 164; People v. Hoym, 20 How. Prac. 76; Everson v. Board of Educ. of Township of Ewing, 330 U. S. 1; Reynolds v. United States, 98 U. S. 145.) II. Section 2147 does not deprive defendants of equal protection of the laws. (People v. Dunford, 207 N. Y. 17; People v. Havnor, 149 N. Y. 195; Petit v. Minnesota, 177 U. S. 164; Yick Wo v. Hopkins, 118 U. S. 356; Snowden v. Hughes, 321 U. S. 1; Thompson v. Spear, 91 F. 2d 430, 302 U. S. 762.) III. Section 2144 has no application to a prosecution under section 2147. (People v. Havnor, 149 N. Y. 195; People v. Rudnick, 259 App. Div. 922; People v. Adler, 174 App. Div. 301; Commonwealth v. Starr, 144 Mass. 359; Commonwealth v. Has, 122 Mass. 40.)
   Per Curiam.

In the light of its historical background, section 2144 of the Penal Law may not reasonably be read into section 2147, dealing with “public selling * * * upon Sunday” (L. 1785-1788, Vol. 2, pp. 679-680; 1 Rev. Stat of N. Y., 1828 [1st ed.], part I, ch. XX, tit. VIII, art. 8, pp. 675-676; ibid. 1836 [2d ed.], Vol. 1, p. 675; ibid. 1845 [3d ed.], Vol. 1, pp. 849-850; ibid. 1851 [4th ed.], Vol. 2, p. 83; ibid. 1858 [5th ed.], Vol. 2, p. 936; ibid. 1875 [6th ed.], Vol. 2, pp. 928-929; ibid. 1881 [7th ed.], Vol. 3, p. 1975; L. 1881, chs. 676, 680, Vol. 1, pp. 913, 917; ibid. Vol. 3 [Penal Code], pp. 62-67; ibid. 1883, ch. 358, p. 541; ibid. 1885, ch. 519, p. 875). The exempting language of those enactments over a period of more than a century and a half refers only to laboring or working and excludes selling. For almost three quarters of a century this has been the uniform interpretation given to the exemption clause by our courts (Anonymous, 12 Abb. N. C. 455; Matter of The Agudath Hakehiloth, 18 Misc. 717; People v. Adler, 174 App. Div. 301; People v. Rudnick, 259 App. Div. 922). Other jurisdictions have reached similar conclusions (State v. Haining, 131 Kan. 853, 854-855; Komen v. City of St. Louis, 316 Mo. 9, 17; Commonwealth v. Has, 122 Mass. 40; Commonwealth v. Starr, 144 Mass. 359; Commonwealth v. Kirshen, 194 Mass. 151; State v. Weiss, 97 Minn. 125,130).

We are bound to construe statutes as we find them and may not sit in review of the discretion of the Legislature or determine the expediency, wisdom or propriety of its action on matters within its powers (Lawrence Constr. Corp. v. State of New York, 293 N. Y. 634, 639; Matter of Russo v. Valentine, 294 N. Y. 338). A plea that a statute imposes inconvenience or hardship upon a litigant should be addressed to the Legislature; we may not usurp its functions by legislating judicially (United States v. Carolene Products Co., 304 U. S. 144).

Nor may we say that section 2147 of the Penal Law is unconstitutional because of infringement upon religious freedom. It is not a “ law respecting an establishment of religion, or prohibiting the free exercise thereof ” (U. S. Const., 1st Amendt.). It does not set up a church, make attendance upon religious worship compulsory, impose restrictions upon expression of religious belief, work a restriction upon the exercise of religion according to the dictates of one’s conscience, provide compulsory support, by taxation or otherwise, of religious institutions, nor in any way enforce or prohibit religion. Although the so-called Sunday laws may be said to have had a religious origin, our statute since 1881 (Penal Code, § 259, now Penal Law, § 2140) has also recognized that the first day of the week by general consent is set apart ‘ ‘ for rest ’ ’, in accord with the general experience of mankind that it is wise and necessary to set apart such a day at stated intervals for both the physical and moral welfare of the members of a State or community. The power of the Legislature to regulate the observance of Sunday as a civil and political institution is well settled (Soon Hing v. Crowley, 113 U. S. 703, 710; Hennington v. Georgia, 163 U. S. 299, 304, 318; Petit v. Minnesota, 177 U. S. 164,165; People v. Moses, 140 N. Y. 214, 215; People v. Havnor, 149 N. Y. 195, 201-203, writ of error dismissed sub worn. Havnor v. New York, 170 U. S. 408; Silverberg Bros. v. Douglass, 62 Misc. 340, 342; see, also, People v. Dunford, 207 N. Y. 17, 20; People ex rel. Woodin v. Hagan, 36 Misc. 349; 50 Am. Jur., Sundays and Holidays, pp. 803-804). The cases cited by appellants involve completely dissimilar fact patterns. Section 161 of the Labor Law is for the benefit of the individual workman, and is not a substitute for the Sunday laws, which establish a general day of rest and repose for the community as a whole.

Section 2147 may not be said to deny the equal protection guaranteed by the Fourteenth Amendment by reason of being discriminatory class legislation. The statutory scheme is that of a general prohibition against specified activities on Sunday with some exceptions as to necessities, recreation and conveniences, many of which exceptions merely emphasize that the Legislature recognizes Sunday as a day for rest, play, relaxation and recreation rather than merely as a religious Sabbath. The statutory scheme viewed as a whole is a valid one and does not constitute discrimination (Petit v. Minnesota, supra; People v. Dunford, supra; People v. Havnor, supra; People v. Moses, supra; Silverberg Bros. v. Douglass, supra). While the statute may not be perfectly symmetrical in its pattern of exclusions and inclusions, the equal protection of the laws does not require a Legislature to achieve abstract symmetry ” (Patsone v. Pennsylvania, 232 U. S. 138, 144) or to classify with mathematical nicety ” (Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61, 78; Borden’s Farm Products Co. v. Baldwin, 293 U. S. 194, 209).

Finally, the claim that the statute has been consistently enforced discriminatorily in violation of the equal protection clause of the Fourteenth Amendment and section 11 of article I of the New York State Constitution is without merit (Snowden v. Hughes, 321 U. S. 1, 8). The offer of proof was not an offer to show a pattern of discrimination consciously practiced, as in Yick Wo v. Hopkins (118 U. S. 356); it merely indicated some nonenforcement as to certain other businesses many of which were allowed to remain open for the sale of permitted commodities.

The defendants’ remedy lies with the Legislature.

The judgment of the Appellate Division should be affirmed.

Lotjghran, Ch. J., Lewis, Conway, Desmond, Dye, Ftjld and Froessel, JJ., concur.

Judgment affirmed.


author: Loughban, Ch. J.

text:
    Robert R. Stevenson, Appellant and Respondent, v. News Syndicate Co., Inc., Respondent and Appellant.
    Argued October 11, 1950;
    decided December 1, 1950.

      George G. Hunter, Jr., James T. Gallagher and Robert S. Carroll for plaintiff, appellant-respondent.
    I. The article is an untrue and unfair report as a matter of law. (Schaffran v. Press Pub. Co., 258 N. Y. 207; Campbell v. New York Evening Post, 245 N. Y. 320; Lee v. Brooklyn Union Pub. Co., 209 N. Y. 245.) II. Section 337 of the Civil Practice Act does not extend privilege to the publication of the contents of court files to which inspection by the public is expressly prohibited by statute or rule. (McCurdy v. Hughes, 63 N. D. 435; McCabe v. Cauldwell, 18 Abb. Prac. 377; Stuart v. Press Pub. Co., 83 App. Div. 467.) III. Rule 278 of the Rules of Civil Practice is reasonable, consistent with the statutes and public policy, and is not an attempt of the court to legislate contrary to section l«of article III of the State Constitution. (Matter of North v. Foley, 238 App. Div. 731; Stuart v. Press Pub. Co., 83 App. Div. 467; General Investment Co. v. Interborough R. T. Co., 235 N. Y. 133; People v. Hall, 51 App. Div. 57; Matter of Natelson v. Portfolio, 291 N. Y. 290; Matter of Bakers Mut. Ins. Co. [Dept. of Health], 301 N. Y. 21; Matter of Allen, 205 N. Y. 158.) IV. Buie 278 is not an unconstitutional abridgment of the freedoms of speech and press unde.r either the Federal or State Constitution. [Matthews v. Associated Press of State of N. Y., 136 N. Y. 333.)

      Stuart N. Updike, James W. Bodgers, Philip T. Seymour, Andrew L. Hughes and John B. Schoemer, Jr., for defendant, respondent-appellant.
    I. Defendant’s report of the motion papers served and filed in court is within the fair and true report immunity conferred by section 337 of the Civil Practice Act. That immunity is not restricted to judicial proceedings open to the general public but extends to all judicial proceedings. [Campbell v. New York Evening Post, 245 N. Y. 320; Sanford v. Bennett, 24 N. Y. 20; Williams v. New York Herald Co., 165 App. Div. 529; Sanford v. Boston Herald-Traveler Corp., 318 Mass. 156; Cowley v. Pulsifer, 137 Mass. 392; Ackerman v. Jones, 5 Jones & Sp. 42; Bissell v. Press Pub. Co., 62 Hun 551; Kimball v. Post Pub. Co., 199 Mass. 248; Farrell v. New York Evening Post, 167 Misc. 412; Taylor v. Prudential Ins. Co., 142 Misc. 94; State Bd. of Pharmacy v. Gasau, 195 N. Y. 197.) II. Rule 278 of the Buies of Civil Practice, as construed below to “ seal ” all filed papers in all matrimonial actions from newspapers and the general public, is unreasonable and invalid. It is inconsistent with statutes and the public policy of the State. It is an attempt by the judiciary to exercise, contrary to section 1 of article III of the State Constitution, the legislative power of determining and enacting into law the public policy of the State. [Moot v. Moot, 214 N. Y. 204; Gormerly v. McGlynn, 84 N. Y. 284; Rice v. Ehele, 55 N. Y. 518; Broome Co. Farmers’ Fire Belief Assn. v. New York State Elec. & Gas Corp., 239 App. Div. 304, 264 N. Y. 614; Cowley v. Pulsifer, 137 Mass. 392; Lee v. Brooklyn Union Pub. Co., 209 N. Y. 245; Straus & Co. v. Canadian Pacific Ry. Co., 254 N. Y. 407.) III. Rule 278 is an unconstitutional abridgment of the freedoms of speech and press, prohibited by the First and Fourteenth Amendments to the Federal Constitution and section 8 of article I of the State Constitution. (Cantwell v. Connecticut, 310 U. S. 296; Schneider v. State [Town of Irvington], 308 U. S. 147; De Jonge v. Oregon, 299 U. S. 353; Near v. Minnesota ex rel. Olson, 283 U. S. 697; Pennekamp v. Florida, 328 U. S. 331; Saia v. New York, 334 U. S. 558; Martin v. City of Struthers, 319 U. S. 141.) IV. Judicial rule-making to exclude the public from all matrimonial files is invalid. (Munzer v. Blaisdell, 268 App. Div. 9; Matter of Bakers Mut. Ins. Co. [Dept. of Health], 301 N. Y. 21.) V. The privilege accorded by section 337 is not limited to those proceedings which are open to all persons. (Baumann v. Newspaper Enterprises, 270 App. Div. 825; Bridgwood v. Newspaper PM, 276 App. Div. 858; Farrell v. New York Evening Post, 167 Misc. 412; Briarcliff Lodge Hotel v. Citizen-Sentinel Publishers, 260 N. Y. 106; Lewis v. Chemical Foundation, 262 N. Y. 489; Schachter v. News Syndicate Co., 270 App. Div. 378; d’Auxy v. Star Co., 31 Misc. 388.)

      Elisha Hanson, Stanley D. Brown and E. Douglas Hamilton for American Newspaper Publishers Association, amicus curies, in support of defendant’s position.
    I. The articles published constituted a fair and true report of a judicial proceeding within the meaning of section 337 of the Civil Practice Act. II. The English common-law restraints on the press are repugnant to the liberty of the press as safeguarded by the First and Fourteenth Amendments. (Bridges v. California, 314 U. S. 252; Pennekamp v. Florida, 328 U. S. 331; Craig v. Harney, 331 U. S. 367.) III. Rule 278 of the Rules of Civil Practice is repugnant to the constitutional guarantee of a free press and constitutes an invalid exercise of the judicial rule-making power. (Near v. Minnesota ex rel. Olson, 283 U. S. 697; Grosjean v. American Press Co., 297 U. S. 233; Murdock v. Pennsylvania, 319 U. S. 105.)
   Loughban, Ch. J.

The action is for libel. For the sake of clarity, the plaintiff will be called by his surname — Stevenson. On April 6, 1948, his wife brought against him in the Supreme Court in New York County an action for a separation. Issue was joined therein but no pleading or note of issue was filed at any time.

In that separation action, however, Stevenson’s wife moved for an award of temporary alimony and for counsel fees upon an affidavit whereby she charged him (a) with failure to support her; (b) with abandonment and cruel and inhuman treatment through refusal to have marital relations; (c) with boasting in her presence about his conquests of other women, and (d) with illicit interest in two female business associates — conduct which she characterized as 1 ‘ two-timing or, to be more accurate, three-timing ”.

The motion so made by Stevenson’s wife was returnable on July 30,1948, at Special Term, Part I, of the Supreme Court in the county of New York. Supporting papers were filed with the clerk of that court on July 22,1948. On the return day, the motion was adjourned to August 13, 1948, and on that date was withdrawn pursuant to an order of the court. On August 14, 1948, the withdrawal order and the papers in support of the motion were filed in the office of the Clerk of the County of New York. On December 8, 1948, the separation action was discontinued by stipulation of the parties. On January 14, 1949, Stevenson’s wife obtained in the State of Nevada a final decree of divorce.

In the meantime and on August 18 and 19,1948, the defendant in this present libel action published in several editions of its newspaper an article in respect of the Stevenson separation action which in part reads as follows :

“ That double-dealing husbands are a dime a dozen in any large city is an accepted cinch. But Robert R. Stevenson, $27,000-a-year treasurer of General Foods Corp., does not fool around on so small- a scale, his wife, Grace, charged yesterday in Supreme Court, Manhattan. Bob, said Grace, is a triple-dealer.

By this, Mrs. Stevenson explained in a suit for separation, she means that the 41-year-old vittles tycoon not only has been double-dealing her with a lady in his employ but also is cheating on the co-respondent.”

The article so published by the defendant had an obvious tendency to disparage Stevenson. In his complaint herein he says the article is false and he further pleads that the motion papers in his wife’s separation action (upon which the article admittedly was based) were procured by the defendant in violatian of rule 278 of the Buies of Civil Practice which makes this provision: An officer of a court with whom the proceedings in an action to annul a marriage or for divorce or separation are filed, or before whom the testimony is taken, or his clerk, either before or after the termination of the suit, shall not permit a copy of any of the pleadings or testimony, or any examination or perusal thereof, to be taken by any other person than a party, or the attorney or counsel of a party who had appeared in the cause, except by order of the court.”

In its answer herein, the defendant denies any infringement of rule 278 and sets forth the following defense: 11 The article complained of constituted a fair and true report of a judicial proceeding, together with such fair comment thereon as was warranted by said report. Said article was published without malice toward plaintiff and was and is privileged.” This defense, of course, looks to section 337 of the Civil Practice Act. It is thereby provided: “ A civil action cannot be maintained against any person, firm or corporation, for the publication of a fair and true report of any judicial, legislative or other public and official proceedings, or for any heading of the report which is a fair and true headnote of the statement published.”

Annexed to the answer of the defendant are copies of the motion papers that were filed by Stevenson’s wife in the separation action and a copy of the order under which that motion was withdrawn.

On the pleadings and on certain admissions made by Stevenson pursuant to section 322 of the Civil Practice Act, the defendant moved the court at Special Term for judgment dismissing the complaint in this present libel action. Stevenson’s response was a cross motion for judgment on the pleadings. Special Term denied both motions. Both parties then appealed to the Appellate Division where (1) the order denying the defendant’s motion for dismissal of the present libel action was affirmed by a divided vote; (2) the order therein denying Stevenson’s motion for judgment on the pleadings was unanimously affirmed, and (3) each party was granted leave to appeal to us upon the following certified question: Was the order of Special Term properly made?” Consequently we now have before us the issues of law that were raised by the parties at the Special Term (Erie R. R. Co. v. Sells, 298 N. Y. 58. 60).

We turn first to a question in respect of our own jurisdiction. A motion for judgment on the pleadings ordinarily is addressed to the discretion of the court (see Civ. Prac. Act, § 476; Schnibbe v. Glenz, 245 N. Y. 388). Under section 603 of the Civil Practice Act, the Appellate Division, when it certifies a question to this court, must state its disposition of any question of fact or discretion that is involved and, in the absence of such a statement, all questions of fact and discretion are presumed to have been resolved by the Appellate Division in favor of the party who happens to be the respondent in this court. If, then, the cross motions made herein were denied below in the exercise of discretion, these appeals should be dismissed (Langan v. First Trust & Deposit Co., 296 N. Y. 60). Where, however, all parties to a litigation choose to do so, they may to a large extent chart their own procedural course through the courts (Matter of Malloy, 278 N. Y. 429). In the present case, both parties have treated the cross motions as challenges to the legal sufficiency of the pleadings. Nobody has suggested that either motion presents any question of discretion. More than that: the Appellate Division — as its opinions show — approached this controversy in the same way. In that state of the record, we are not disposed to inquire whether the decision of the courts below can be justified as an exercise of discretion. Accordingly, we pass to the merits.

Under the practice of the New York Supreme Court, a motion by a plaintiff for judgment on the pleadings when addressed to an answer in its entirety will be denied irrespective of the merits of any pleaded affirmative defense, if the answer contains a denial which raises an issue of fact (Von Oehsen v. Bartley, 241 App. Div. 619). In his complaint herein, Stevenson alleged his loss of lucrative employment as one consequence of the publication of the article in question. This allegation of the complaint is denied by the defendant’s answer. By his motion for judgment on the pleadings, Stevenson attacked the whole of the defendant’s answer. Hence we are constrained by the principle of the case last cited to affirm the order entered against him below.

When a defendant moves for judgment on the pleadings, the court ordinarily will pay no heed to defenses consisting of new matter, because such defenses are deemed to be controverted by the plaintiff (see Civ. Prac. Act, § 243; Lipkind v. Ward, 256 App. Div. 74). Even so, we here reach the question whether the defense of privilege pleaded in the defendant’s answer is valid, because that question is raised by the admissions which Stevenson made pursuant to section 322 of the Civil Practice Act. These admissions (which are part of this record) establish the genuineness of the above-mentioned papers that were filed in the course of the separation action brought by Stevenson’s wife.

Thus we arrive at this question: Is the article that was published by the defendant so far a fair and true report of the contents of the motion papers that were filed by Mrs. Stevenson in her separation action as to be within the privilege declared by the above words of section 337 of the Civil Practice Act? We shall treat that question as an issue of law, since both parties urge us to do so. (See German Masonic Temple Assn. v. City of New York, 279 N. Y. 452.)

The privilege established by section 337 for reports of judicial proceedings embraces only full, fair and impartial ” reports of such proceedings (Lee v. Brooklyn Union Pub. Co., 209 N. Y. 245, 248). In our judgment, the article in question falls far short of that standard. The article said that Stevenson’s wife made her charges against him yesterday ” — an assertion that was false. The article made no mention of the fact that the charges were made as part of a motion which had theretofore been withdrawn — an omission that was unfair. In short, the article was neither true nor fair and consequently the privilege declared by section 337 of the Civil Practice Act did not attach to it. We pass on no other question.

The order of the Appellate Division should be affirmed, without costs, and each question certified should be answered in the affirmative.

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

Order affirmed, etc. [See 302 N. Y 690.]


author: Froessel, J. Dye, J.

text:
    The People of the State of New York ex rel. John Poulos et al., Respondents, against Thomas McDonnell, as Warden of the City Prison, Respondent. The People of the State of New York, Appellant.
    Argued October 12, 1950;
    decided January 11, 1951.

      Miles F. McDonald, District Attorney (David Diamond of counsel), for appellant.
    I. The charge of assault in the third degree is still pending before the County Court. (Code Crim. Pro., § 444; People v. Miller, 143 App. Div. 251; People v. Willson, 109 N. Y. 345; People v. Murch, 263 N. Y. 285.) II. A retrial of relators on the charge of assault in the third degree upon which the jury disagreed would not contravene section 32 of the Penal Law. (People ex rel. Chalmers v. Foster, 272 App. Div. 236.)

      Milton I. Weintraub for respondents.
    I. A second trial will subject relators to double jeopardy. (People ex rel. Stabile v. Warden of City Prison, 202 N. Y. 138; People v. Rodgers, 184 App. Div. 461, 226 N. Y. 671; People ex rel. Ticineto v. Brewster, 241 App. Div. 467; People v. Murray, 168 Misc, 737.) II. A second trial would be in violation of section 32 of the Penal Law. (People v. Wein, 196 App. Div. 368; People v. Sullivan, 173 N. Y. 122; People v. McCarthy, 110 N. Y. 309; Matter of Rathscheck, 300 N. Y. 346; Matter of Bartholomew, 106 App. Div. 371; People v. Brockett, 85 Hun 138; People v. Murch, 263 N. Y. 285; Dedieu v. People, 22 N. Y. 178; People v. Miles, 289 N. Y. 360; People v. Gold, 268 App. Div. 817.)
   Froessel, J.

Relators were indicted by a grand jury of Kings County on three counts:

1. Attempted rape in the first degree;

2. Assault in the second degree with intent to commit rape, and

3. Assault in the second degree with intent to inflict grievous bodily harm.

At the trial, the court dismissed the first count at the end of the People’s case. The jury acquitted relators of counts 2 and 3. Their counsel thereupon moved for their discharge on all three counts of the indictment ”, which motion was denied upon the ground that ‘ ‘ there is still pending before the Court a charge of assault in the third degree, which is included within the crimes charged in the indictment by virtue of the Code of Criminal Procedure.” Counsel duly excepted, pointing out to the court that ‘ ‘ there is no information before your Honor and no indictment on assault in the third degree.” The relators were remanded for recall for trial when directed ” and bail fixed at $5,000 for each. Habeas corpus proceedings at Special Term were thereupon promptly instituted by relators by reason of their unlawful detention, and after a hearing, the writ was sustained and relators were discharged; the Appellate,Division unanimously affirmed.

Eelators contend that the trial court’s ruling subjects them to double jeopardy in violation of law (N. Y. Const., art. I, § 6; Penal Law, § 32; Code Crim. Pro., § 9). We conclude, as did Special Term and the Appellate Division, that such indeed is the result.

It is the statutory as well as the common-law rule • that a prosecution ought not fail for lack of proof if the crime charged is shown to have been committed in a lesser degree than charged in the indictment; in such case the jury may find a defendant guilty of the lesser degree (Dedieu v. People, 22 N. Y. 178; Penal Law, § 610; Code Crim. Pro., § 444).

In the instant case, the court charged, in accordance with the statute (Code Crim. Pro., § 444), the lesser degree, following its charge on the third count of the indictment. The jury could then have found relators guilty of assault either in the second or third degree; since they did not, but on the contrary acquitted relators of the only counts with which they were charged in the indictment, nothing was left to be tried, and their general verdict constituted a bar to any new indictment or trial for the same crime [assault], in any other degree ” (Penal Law, § 32). It was not necessary for the jury to acquit relators of assault in the third degree, with which they were not specifically charged; the statute merely authorised them to find relators guilty of the lesser degree.

It is of course true that an acquittal on one count of an indictment may not be deemed an acquittal on any other count (Code Grim. Pro., § 443-a); but here relators were acquitted on all counts charged in the indictment, and in consequence no charge survived. The court could not revive an indictment that had been disposed of for all purposes, nor could it usurp the functions of a grand jury by finding a new indictment.

It is also true that the indictment might have been amended by the addition of a new count, namely, assault in the third degree, had the statutory procedure been carried out (Code Crim. Pro., §§ 295-j, 295-k), in view of the fact that such count would merely be an inferior degree of the same generic crime with which they were already charged — assault (in the second degree) — or, in the words of the statute, it relates to the transaction upon which the defendant stands indicted ” (cf. People v. Miles, 289 N. Y. 360). It does not appear that this was done or even attempted, and the court in effect merely recognized that the third count would sustain a conviction in the lesser degree and charged the jury accordingly. Under such circumstances there can be no question of amendment by implication or waiver (cf. People ex rel. Prince v. Brophy, 273 N. Y. 90), and it is unnecessary to consider what might have been the effect had the indictment been amended to allege an additional count.

Section 32 of the Penal Law is clearly applicable here, and we know of no authority holding contrary to the views herein expressed. As the order appealed from is final, the question certified need not be specifically answered (Civ. Prac. Act, §§ 1262, 1268). Accordingly, the order of the Appellate Division should be affirmed. The question certified is not answered.

Dye, J.

(dissenting). A majority of this court is about to decide that the writ of habeas corpus sought herein was properly issued for the reason that, in light of section 32 of the Penal Law, the lesser included count added to the indictment by the trial court could not survive the verdict of acquittal on the main charge of assault, second degree, without placing relators twice in jeopardy for the same offense (N. Y. Const., art. I, § 6). With this approach, I am unable to agree.

The trial court had undoubted statutory authority to add the lesser count of assault, third degree, and to charge the jury accordingly (Code Crim. Pro., §§ 295-j, 444). Had the jury been satisfied with the proof a verdict of conviction based on such lesser count would have been proper (Penal Law, § 610). It has always been the rule that a prosecution should not wholly fail for lack of proof to sustain the main charge if a crime in an inferior degree is made out (Dedieu v. People, 22 N. Y. 178). To say now that because of the circumstance that the jury could not agree — and so reported itself in open court — was equivalent to a verdict of acquittal as a matter of law is to allew the prosecution loss latitude than it had at common law and, in effect, to nullify the legislative pronouncement in the premises (Code Crim. Pro., §§ 443-a, 444; Penal Law, § 610). Nor are any of the decisions in which the courts have inferred from the facts either an acquittal or conviction pertinent where a jury specifically records its disagreement, thus leaving no possible doubt as to its treatment of the charge submitted (cf. People v. Goldfarb, 152 App. Div. 870, affd. 213 N. Y. 664; People ex rel. Stabile v. Warden of City Prison, 202 N. Y. 138, 152; People v. Dowling, 84 N. Y. 478; People ex rel. Ticineto v. Brewster, 241 App. Div. 467).

When the trial court, as is its prerogative, proceeds in a proper case to add a lesser included degree of the same crime charged in the indictment, it is bound to so charge the jury and this is exactly what was done here. When so charged, the oral pronouncement by the court as to the inferior degree is as effective in law as a formal assertion in the body of the indictment (Code Crim. Pro., § 295; People v. Sciascia, 268 App. Div. 14, affd. 294 N. Y. 927) for it is no longer necessary, as it was at common law, to particularize each degree of each offense charged in an indictment (People v. Miller, 143 App. Div. 251, affd. 202 N. Y. 618). Therefore after the jury finds a defendant ‘ ‘ not guilty ’ ’ of the degree charged in the indictment, they are then authorized to find him guilty “ of any degree inferior thereto ” (Code Crim. Pro. § 444; People v. Willson, 109 N. Y. 345) thus preventing a failure of prosecution (People v. Murch, 263 N. Y. 285; cf. People v. Miller, supra).

The situation here is no different than is the expressed disagreement on one or more of the counts in a multi-count indictment (Code Crim. Pro., § 443-a; People ex rel. Chalmers v. Foster, 272 App. Div. 236). By the same token a specific disagreement cannot of itself give rise to a plea of double jeopardy which necessarily involves a retrial for the same act and the same crime for which the original prosecution was instituted and which resulted in either an acquittal or a conviction (People v. Silverman, 281 N. Y. 457; People v. Rodgers, 184 App. Div. 461, affd. 226 N. Y. 671; 15 Am. Jur., Criminal Law, § 380; cf. People v. Caramanica, 276 App. Div. 1027, affd. 301 N. Y. 729). A single set of facts comprising one episode gave rise to the several counts of the indictment, all three of which had been disposed of either by ruling of the court or verdicts of the jury. One count — that added by the trial court — survived. To hold relators for retrial does not under these circumstances subject them to any additional burden within the proscription against double jeopardy (cf. People ex rel. Bullock v. Hayes, 215 N. Y. 172). They were fully apprised with what they were charged and allowed the issue to go to the jury without exception. As to the count in question, they stand in no different position than as if no trial thereof had been had.

The order appealed from should be reversed, the writ denied, and relators remanded to the custody of the warden of the city prison for trial, limited, of course, to the undetermined charge of assault, third degree.

Loughran, Ch. J., Conway and Desmond, JJ., concur with Froessel, J.; Dye, J., dissents and votes for reversal in an opinion in which Lewis and Feld, JJ., concur.

Order affirmed, etc.


text:
    Thelma B. Schnepel et al., Appellants, v. Board of Education of the City of Rochester, Respondent.
    Argued November 20, 1950;
    decided January 18, 1951.

      Ruben A. Dankoff for appellants.
    A taxpayers’ action may properly be brought against this defendant. (Lewis v. Board of Educ. of City of N. Y., 258 N. Y. 117; Rees v. Teachers’ Retirement Bd., 247 N. Y. 372; Matter of Hirschfield v. Cook, 227 N. Y. 297; Warnock v. Wray, 194 N. Y. S. 396.)

      William H. Emerson, Corporation Counsel (James H. Boomer of counsel), for respondent.
    A taxpayers’ action may not be maintained against the board of education. (Olmsted v. Meahl, 219 N. Y. 270; Blackburn v. Clements, 297 N. Y. 971; Divisich v. Marshall, 281 N. Y. 170; People ex rel. Elkind v. Rosenblum, 184 Misc. 916, 269 App. Div. 859, 295 N. Y. 929; Brooks v. Wyman, 246 N. Y. 534.)
   Per Curiam.

Section 51 of the General Municipal Law authorizes actions by taxpayers against illegal acts of £< all officers, agents, commissioners and other persons acting, or who have acted, for and on behalf of any county, town, village or municipal corporation in this state ”. Section 2 of the same statute defines a municipal corporation ” as including ££ only a county, town, city and village.”

A board of education is not a municipal corporation within the meaning of the above provisions (see Hamilton v. Baker, 243 N. Y. 578; Brooks v. Wyman, 246 N. Y. 534; Blackburn v. Clements, 297 N. Y. 971). Suggestion of a contrary viewpoint may be found in Lewis v. Board of Educ. of City of N. Y. (258 N. Y. 117) but, in our opinion, should not be accepted.

The judgment should be affirmed, with costs.

Loughban, Oh. J., Lewis, Conway, Desmond, Dye, Fuld and and Froessel, JJ., concur.

Judgment affirmed.