author: Rippey, J. Conway, J.

text:
    Grace I. Sweet et al., Appellants, v. Frank E. Campbell et al., Respondents.
    Argued January 10, 1940;
    decided March 5, 1940.

      Roscoe H. Hupper and J. Franklin Fort for appellants.
    Since triable issues of fact concerning nuisance were presented by the complaint and answer, summary judgment under rule 113 was not permissible. (Lederer v. Wise Shoe Co., 276 N. Y. 459; Curry v. McKenzie, 239 N. Y. 267; 277 Park Avenue Corp. v. Pardee, 251 App. Div. 707; Gaumont British Picture Corp. v. Fink, 251 App. Div. 718; Slattery v. Herbstone Realty Co., 233 N. Y. 420; Bove v. Donner-Hanna Coke Corp., 236 App. Div. 37.) The building zone resolution did not prevent immediate prosecution of this action for injunction to restrain a nuisance and it has no relevancy to the case. (Matter of Goelet v. Moss, 248 App. Div. 499; 273 N. Y. 503; Matter of Phipps Estates v. Moss, 248 App. Div. 872; Cogswell v. N. Y., N. H. & H. R. R. Co., 103 N. Y. 10; Morton v. Mayor, 140 N. Y. 207; Squaw Island Freight Terminal Co. v. City of Buffalo, 246 App. Div. 472; Sammons v. City of Gloversville, 175 N. Y. 346; Baltimore & Potomac R. R. Co. v. Fifth Baptist Church, 108 U. S. 317; Euclid v. Ambler Co., 272 U. S. 365; Hudson v. Town of Oyster Bay, 248 App. Div. 737.)

      Samuel Seabury and Lee McCanliss for respondents.
    The zoning resqlution specifically prohibits certain specified uses. The use here involved is. not one of those prohibited; it is, therefore, permitted. (Matter of Monument Garage Corp. v. Levy, 266 N. Y. 339; Matter of Goelet v. Moss, 248 App. Div. 499; 273 N. Y. 503; Bove v. Donner-Hanna Coke Corp., 236 App. Div. 37; Matter of Small v. Moss, 279 N. Y. 288; Stoddard v. Snodgrass, 117 Ore. 262; Linsler v. Booth Undertaking Co., 120 Wash. 177; Kirk v. Mabis, 215 Iowa, 769.) The permit is a final and conclusive determination that defendants are entitled to improve their property as proposed. (Ottinger v. Arenal Realty Co., 257 N. Y. 371; Coley v. Campbell, 126 Misc. Rep. 869; Matter of Towers

      Corp. v. Thatcher, 271 N. Y. 94; Matter of Rosenbush v. Keller, 271 N. Y. 282; People ex rel. Broadway & 96th St. Realty Co. v. Walsh, 203 App. Div. 468; Matter of Kesbec, Inc., v. Reville, 246 App. Div. 694; Town of Greece v. Smith, 256 App. Div. 886; Matter of Beekman v. Talbot, 278 N. Y. 146.)
   Rippey, J.

This is an action in equity by residents of the locality to restrain the use by defendants of certain premises owned by them and located at the northwesterly comer of Madison avenue and Eighty-first street in the city of New York for a funeral church and general undertaking establishment on the ground that such location and occupation and use of the property would constitute a nuisance. Upon motion by defendant, under rule 113 of the Rules of Civil Practice, after answer, summary judgment was granted at Special Term for defendant and the complaint was dismissed with the proviso that the dismissal of the complaint was without prejudice to the institution of a new action after the completion of the proposed structure referred to in said complaint and the commencement of its use for undertaking and funeral purposes.” The Appellate Division affirmed and the case reaches us by permission of this court.

We need not now consider the subject of nuisance by way of definition and determine whether the proposed use would constitute a private nuisance (Cf. Blackstone’s Commentaries, Book III, p. 216; Arthur v. Virkler, 144 Misc. Rep. 483), or whether the occupation and use of the property would amount to a nuisance under any circumstances regardless of location and surroundings (Cf. Melker v. City of New York, 190 N. Y. 481, 487-489). It is sufficient, at least, at this time to point out that the facts set up in the complaint, if established by competent and adequate proof upon a trial of the action, would furnish the foundation upon which a finding, if made, might be sustained, to the effect that the proposed occupation and use of the premises by defendants are unwarranted and unreasonable and constitute an actionable injury to the plaintiffs and a detriment to their properties. The complaint, on its face, states facts sufficient to constitute a cause of action.

Defendants in their answer put in issue the material allegations of the complaint. They affirmatively allege that they had procured a permit from the Commissioner of Buildings and Housing for the erection of a building for the use in question, that the premises were located in a restricted retail district,” as provided in the zoning regulations, in which any use was permitted which was not expressly prohibited and that the proposed location and use of the premises was not within any of the excluded uses. The question presented is whether those allegations in the answer established by documentary evidence, i. e., the permit and the zoning law, set forth a defense sufficiently conclusive, as matter of law, to defeat recovery by plaintiffs (Lederer v. Wise Shoe Co., 276 N. Y. 459).

It is the contention of defendants that the building complies with the Building Code of the city, that the zoning regulations do not forbid the location on and use of the premises for a funeral and undertaking establishment, that defendants have procured a permit from the proper authorities for such location and use which constitutes a conclusive adjudication that neither is prohibited by the zoning law, that the issuance thereof is reviewable only by the Board of Standards and Appeals, and that section 645 (a) of the New York city charter (effective Jan. 1, 1938) makes the permit, subject only to such review, a conclusive adjudication that the erection of the building is in accordance with all provisions of the rules, regulations, ordinances and statutes applicable thereto. We assume, but do not decide, that all of those contentions of defendants may be sustained. Nevertheless, even so, the right of plaintiffs to challenge, in an action in equity, the location of the funeral establishment and proposed use of the property on the ground that it constitutes a nuisance still remains (Rowland v. Miller, 139 N. Y. 93; Foster v. Scott, 136 N. Y. 577; Slattery v. Herbstone Realty Co., 233 N. Y. 420; Village of Euclid v. Ambler Realty Co., 272 U. S. 365, 386-388).

The judgments appealed from should be reversed, with costs in all courts, and the motion for summary judgment denied.

Conway, J.

(dissenting). Plaintiffs seek an injunction restraining defendants from using the premises and property at Eighty-first street and Madison avenue in New York city for the maintenance and conduct of an undertaking business, and demand judgment “ That the nuisance that would be created by maintenance and conduct of an undertaking business on said premises by defendants be permanently enjoined.”

The claim is that the conduct of an undertaking business will constitute a nuisance. The answer consists of denials of the material allegations of the complaint and affirmatively alleges that permits were issued by the Department of Housing and Building for the construction of the building for the use in question and that the premises are located in a district which under the Amended Building Zone Resolution is in a restricted retail district and that in such a district the business in question is permitted.

The motion was made under rule 113 of the Rules of Civil Practice and there was submitted in support of the motion copies of the permits issued by the Department of Housing and Buildings and a copy of article 2 of the Amended Building Zone Resolution covering use districts. These constitute the official record required by the rule.

In opposition to the motion there was submitted no affidavit except one made by the attorney who had charge of the action which discussed questions of law only.

The learned justice at Special Term dismissed the complaint without prejudice to the institution of a new action after the completion of the proposed structure and the commencement of its use for undertaking and funeral purposes. Upon this record this was a correct disposition unless it must be held that the use of the premises as an undertaking establishment is necessarily a nuisance. That it may become a nuisance by reason of the manner in which the business is conducted after the erection of the building to house it is not questioned. Allegations bearing upon the manner in which the premises will actually be operated in the future are, of course, premature and speculative. Can we then say in advance that no undertaking establishment, no matter how inoffensively it may be run and operated, may be permitted upon these premises?

These premises are in a use district known under the Amended Building Zone Resolution as a restricted retail district. Such a district is in reality a limited business district. In a business district forty-six trades, industries and uses are forbidden. A retail district is the same as a business district except that the manufacture of certain articles and the treatment of certain products are not permitted. A restricted retail district is the same as a retail district with certain exceptions not here material. Neither an undertaking establishment nor a funeral parlor is one of the uses prohibited. Since, upon the premises in suit, the conduct of an undertaking establishment is not forbidden, it is permitted. (Matter of Monument Garage Corp. v. Levy, 266 N. Y. 339, 343.)

The Commissioner of Buildings held a hearing in connection with the objections to the proposed building which was attended by the attorney for the plaintiffs who requested that no permit be issued until the final determination of this litigation. Thereafter the building permits were issued. If the plaintiffs herein felt aggrieved by the issuance of the permits their remedy was by appeal to the Board of Standards and Appeals. In the event of an unfavorable ruling there they would be entitled to a review by the Supreme Court. None of the plaintiffs, except one, did this, and their time to appeal to the Board of Standards and Appeals has expired. The plaintiff who did appeal to the Board was unsuccessful and the time to apply for certiorari has expired. The remedies provided by appeal to the Board and certiorari to the Supreme Court must be exhausted before recourse to the courts may be had. In Matter of Towers Management Corp. v. Thatcher (271 N. Y. 94) this court said (at p. 97, quoting from People ex rel. Broadway & 96th Street Realty Co. v. Walsh, 203 App. Div. 468):

The opinion in the Walsh case expresses clearly the point of the decisions: * The procedure of appeal within the line of administrative officials before allowing recourse to the courts, insures the benefit of trained and competent expert opinion and judgment, applied to the facts of each particular case by an experienced tribunal, which is not limited to an affirmance or reversal of the action of the superintendent of buildings, but may use its judgment in making such modification in his action as in its opinion should be made, and to that end is vested with his powers, in order that the spirit of the law shall be observed, public safety secured and substantial justice done ’ (p. 474).

As the petitioner failed to first exhaust its remedy by appeal to the Board of Appeals, the peremptory order of mandamus was improperly granted.” (See, also, Matter of Rosenbush v. Keller, 271 N. Y. 282.)

It is said, however, in the prevailing opinion that, notwithstanding this, the power of a court of equity to enjoin the establishment of a nuisance remains. With this we agree. This undertaking business is not a nuisance per se. Its manner of operation may make it one. Plaintiffs here can only speculate upon the fact that it may become a nuisance. If it is operated in such a manner as to make it a nuisance an injunction may then issue. The precise question was involved in Kirk v. Mabis (215 Iowa, 769), which was a suit in equity to enjoin as a nuisance the establishment and operation of a funeral home in a district which had, by the zoning ordinance, been designated a commercial district. The court there said (at pp. 776, 777): There is an ordinance which designates the property which the appellee Caldwell is using as a commercial district. Any business, other than those expressly excluded by the ordinance, if properly conducted, so that it would not in and of itself be a nuisance, may be conducted in the district covered by the ordinance. There is nothing in the ordinance which excludes a funeral home. It must be admitted that the business of operating a funeral home is a lawful and necessary business; that if it is operated in a proper manner, and in a proper location, it is not a nuisance per se.”

The cases relied on by plaintiffs are those which involve undertaking establishments in residential districts or in places where their existence violated a restrictive covenant. No question of zoning was involved.

The judgment should be affirmed.

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

Judgments reversed, etc.


source: Caselaw Access Project

author: Sears, J. Rippey, J.

license: Public Domain

text:
    Daniel E. Finn, Respondent, v. City of New York, Appellant.

      Argued January 25, 1940;
    decided March 5, 1940.

      William C. Chanler, Corporation Counsel (Robert H. Schaffer and Paxton Blair of counsel), for appellant.
    The court below erred in holding that the provisions of section 149 of the Charter of the City of New York (L. 1901, ch. 466, as amd.) qualified or altered the substance of plaintiff’s constitutional right, for the Legislature did no more than prescribe the method of enforcement of the constitutional right. (Matter of Shevlin v. LaGuardia, 279 N. Y. 649; Matter of Rushford v. LaGuardia, 280 N. Y. 217; Quayle v. City of New York, 278 N. Y. 19; Dodge v. City of New York, 278 N. Y. 25.) The constitutional prohibition applies to reductions in salary of constitutional State officers after the beginning of the term of office. Before the incumbent takes office the Legislature may reduce the salary and may enact a statute governing the receipt of compensation, such as section 149 of the charter. (O’Malley v. Woodrough, 307 U. S. 277; People ex rel. McLaughlin v. Board of Police Commrs., 174 N. Y. 450; Black v. Graves, 257 App. Div. 176; 281 N. Y. 792.)

      David Segal for respondent.
    Plaintiff, both as County Clerk and Sheriff, was a constitutional State officer and entitled to the benefit of section 9 of article 10 of the State Constitution. (Eberhard v. City of New York, 163 Misc. Rep. 370; Hanley v. City of New York, 250 App. Div. 552; 275 N. Y. 482.) Section 149 of the old charter is unconstitutional as to the plaintiff in his capacity as Sheriff and County Clerk because it violates section 9 of article 10 of the State Constitution. (People ex rel. Wood v. Draper, 15 N. Y. 532; Quayle v. City of New York, 278 N. Y. 598; People ex rel. Bolton v. Albertson, 55 N. Y. 50.)
   Sears, J.

During the years beginning January 1, 1930, and ending on the 31st day of December, 1933, the plaintiff was the duly elected and qualified Clerk of the county of New York; and during the years beginning the 1st day of January, 1934, and ending with the 31st day of December, 1937, plaintiff was the duly elected and qualified Sheriff of the county of New York. The salaries of the Clerk and of the Sheriff during the periods mentioned were each fixed by law at $15,000 a year. (Laws of 1884, ch. 299; Laws of 1927, ch. 688.) Ineffective attempts to reduce the salaries under the provisions of chapter 637 of the Laws of 1932, and chapter 178 of the Laws of 1934 may be disregarded inasmuch as the attempted reductions have been held invalid. (Hanley v. City of New York, 250 App. Div. 552; affd., 275 N. Y. 482.) The old charter of the city of New York (Laws of 1901, ch. 466, as amd.), which was in effect throughout the period during which the plaintiff occupied the offices of County Clerk and Sheriff, contained in its section 149 the following language: Every official, employee or person who shall sign the receipt upon such payroll as having received the amount therein mentioned in full payment for services rendered by him for the entire time specified in such payroll, shall be deemed to have made an accord and satisfaction of all claims against the city for wages or salary due to such person from the city of New York for the period covered by such payroll, unless at the time of signing such payroll the person receiving such wages or salary shall write legibly thereon in connection with his receipt, that the amount received is received under protest, and unless such protest is so written upon such payroll no recovery shall be had against the city of New York upon any further claim for wages or salaries for the period of time covered by such payroll.”

This statute was applicable to the offices of County Clerk and Sheriff. (Quayle v. City of New York, 278 N. Y. 19; Dodge v. City of New York, 278 N. Y. 25.) While the plaintiff was the incumbent of the offices of Clerk and Sheriff of the county of New York, he received at various times from January 1, 1933, to December 31, 1937, less amounts than he was entitled to by reason of his annual salary of $15,000, but, upon the official payrolls of the defendant, he did not write when receiving these smaller sums that the amounts received were received under protest. Thus, a statutory accord and satisfaction resulted, and the plaintiff cannot recover the balances of his $15,000 annual salary which he seeks to recover in this action, provided the quoted provisions of section 149 as applied to the plaintiff’s offices are constitutional. (Quayle v. City of New York, supra; Dodge v. City of New York, supra.)

The plaintiff challenges the constitutionality of the section as applicable to him under the provisions of section 9 of article X of the Constitution of the State, as the section was then numbered (and now renumbered as section 12 of article XIII) which reads as follows: “No officer whose salary is fixed by the Constitution shall receive any additional compensation. Each of the other state officers named in the constitution shall, during his continuance in office, receive a compensation, to • be fixed by law, which shall not be increased or diminished during the term for which he shall have been elected or appointed; * *

The plaintiff contends that being a State officer named in the Constitution, both as Clerk and as Sheriff, the addition of the requirement of written protest abridges his right to full compensation and conflicts with the constitutional provision. Although the plaintiff’s salary, both as Clerk and Sheriff, was protected by this provision (Hanley v. City of New York, supra; Eberhard v. City of New York, 163 Misc. Rep. 370), we do not so construe section 149. That section became effective long before the plaintiff was elected to either of his offices. A reduction in the salary of a constitutional officer other than one whose compensation is fixed by the Constitution itself may be made at any time if the reduction is to be effective only as to those assuming office thereafter. We look upon the statute, however, not as reducing salaries or authorizing reductions, but as providing an administrative detail of which plaintiff had notice at the time he took office. That a State officer named in the Constitution may, in general, waive his right to full salary is established by the cases already cited. The Constitution does not inhibit the Legislature from providing reasonable administrative procedure and safeguards. As the plaintiff had notice of the requirement for noting a protest and failed to comply with it, he accepted the lesser sums in full payment, and the Legislature has said that his action once so taken is final. We find in this no conflict with the constitutional provision.

The judgment should be reversed and the complaint dismissed, with costs in all courts.

Rippey, J.

(dissenting). Plaintiff was Clerk of the county of New York for the period commencing January 1, 1930, and ending December 31, 1933, and Sheriff of the county of New York for the period beginning January 1, 1934, and expiring on December 31, 1937. At the time of his election to each office and during his incumbency thereof the Constitution of 1894 was in effect. As Sheriff and as Clerk, he was a constitutional State officer and, in each case, elected for a fixed term of three years (State Const. art. 10, § 1). The Constitution (Art. 10, § 9) provided that no officer whose salary is fixed by the constitution shall receive any additional compensation.” The salary of the County Clerk and Sheriff of the county of New York was not specifically fixed by the State Constitution. Article 10, section 9, of the Constitution further provided: Each of the other state officers named in the constitution shall, during his continuance in office, receive a compensation, to be fixed by law, which shall not be increased or diminished during the term for which he shall have been elected or appointed.” The County Clerk and Sheriff were among such other state officers named in the constitution.” Those provisions of the Constitution were carried over from the 1874 amendment of the Constitution of 1846. Accordingly, the annual salary of County Clerk of the county of New York was fixed at $15,000 (Laws of 1884, ch. 299) and the salary of Sheriff of that county was fixed at the same amount (Laws of 1927, ch. 688). Such was the annual salary of plaintiff fixed by the Legislature at the time he was elected to each office, at the time he took office and during his term of office as Clerk and Sheriff respectively. By the express command of the Constitution that salary could not be reduced during either term for which he was elected.

In 1932, under the asserted authority of the so-called Economy Act (Laws of 1932, ch. 637), defendant reduced plaintiff’s salary as County Clerk for the year 1933 to $13,390 and the salary of the office of Sheriff to a like sum. The reduction was held to be beyond the power of the city to make since the Economy Act specifically excepted such officers within the territory embraced within the first and second judicial districts (Eberhard v. City of New York, 163 Misc. Rep. 370; Hanley v. City of New York, 275 N. Y. 482). During 1933 the reduction in plaintiff’s salary as County Clerk amounted to $1,610, to recover which sum he sued under the second cause of action set out in his complaint. That relief was granted in the court below.

The salary for the office of Sheriff, reduced as above noted, was claimed to be $13,390 at the time plaintiff was elected to the office and took office. That fact has no bearing on the issue to be determined here, however, since the city had no power to make the reduction under chapter 637 of the Laws of 1932 in the salary attached to the office as the Sheriff was excepted from the operation of the salary reduction provisions of the act and his salary was in law that fixed by the Legislature in 1927 at $15,000 both at the time of his election and at the time he entered on the discharge of his duties as Sheriff. Under the asserted authority of the so-called LaGuardia Act (Laws of 1934, ch. 178, in effect April 10, 1934), the city reduced plaintiff’s salary during his term of office as Sheriff on two occasions. The difference between the salary of $15,000 per year and the amount actually paid during the term of his office as Sheriff was $16,041.75, for the recovery of which amount he sued in the first cause of action set out in his complaint. By the express provisions of that act under which the city assumed to make the reductions (Laws of 1934, ch. 178, § 4), such reductions were unauthorized as the Sheriff was one of those to whom the act did not apply. On that count, judgment was awarded him in the court below.

The city asserts in this action, however, that, in spite of the illegality of the reductions, which illegality the city concedes, the plaintiff is estopped to recover because plaintiff accepted and kept the salary as reduced without protest. Reliance is placed on an excerpt of section 149 of the Greater New York Charter (Laws of 1901, ch. 466, as amd.), which, so far as claimed to be pertinent, provides: Every official, employee or person who shall sign the receipt upon such payroll as having received the amount therein mentioned in full payment for services rendered by him for the entire time specified in such payroll, shall be deemed to have made an accord and satisfaction of all claims against the city for wages or salary due to such person from the city of New York for the period covered by such payroll, unless at the time of signing such payroll the person receiving such wages or salary shall write legibly thereon in connection with his receipt, that the amount received is received under protest, and unless such protest is so written upon such payroll no recovery shall be had against the city of New York upon any further claim for wages or salaries for the period of time covered by such payroll.”

It is stipulated here that plaintiff signed the payroll in each instance where payment to him of the reduced salary was made and omitted to “ write legibly thereon in connection with his receipt, that the amount received is received under protest.” The payroll is not before the court nor is there any evidence that plaintiff signed the receipts upon the payroll as having received the amounts shown on the receipts “ in full payment for services rendered by him for the entire time specified in such payroll.” Only by inference, if at all, can defendant claim that the pleadings bring plaintiff within the provisions of the statutory accord and satisfaction alleged. We place our decision, however, solely upon the constitutional question involved.

The question of the constitutionality of section 149 of the charter as applied to constitutional State officers has never been before this court. In Matter of Shevlin v. LaGuardia (279 N. Y. 649) and in Matter of Rushford v. LaGuardia (280 N. Y. 217) it was held that section 149 was constitutional when applied to other than constitutional State officers. In Quayle v. City of New York (278 N. Y. 19) and in Dodge v. City of New York (278 N. Y. 25), where the foregoing charter provision, unchallenged as to constitutionality, was before the court for consideration, it was held that constitutional State officers who took office after the enactment of the charter provision might be compelled to protest the payroll in writing in the event of salary reduction as provided by the charter and that, in the event of their failure to so protest the non-payment of the full salary, they would not be heard to assert any claim to salary alleged to be unpaid. Since the constitutionality of the statute was not then challenged by the plaintiffs nor considered by the court, it was said, in the Quayle case, that in that statute the Legislature has defined for the future the public policy of the State. Its power there is not open to challenge. The right of a public official to recover from the city the full salary attached to the office is made subject to the condition that a claim against the city for such salary must be asserted promptly in the manner provided by the Legislature” (p. 24). There was no decision or'intimation in those cases that the Legislature had any power to declare a public policy contrary to and in direct collision with the public policy of the State declared in the Constitution. In Albert v. City of New York (250 App. Div. 555; affd. without opinion, 275 N. Y. 484) it was held that the salary of the plaintiff was legally fixed by the Board of Aldermen by authority of the Legislature of the State prior to the time that plaintiff took office since the duties he performed did not bring bim within the exception from the salary reduction provision of the Economy Act and that such salary should continue to be the salary to which the plaintiff was entitled and could not be reduced during his term of office. Since it appeared as a fact in that case that the plaintiff had accepted the reduced amount under protest as required by the charter provision and the constitutionality thereof was not raised, its constitutionality was not considered. For the same reason, the constitutionality of the act was not raised in the Hanley case (supra). In both cases it was specifically held, and the holding was necessary for and the basis of the decision in this court, that a constitutional State officer must be paid the salary which was legally in effect at the time he took office during the term for which he was elected or appointed.

In the case at bar the respondent challenges the power of the Legislature to attach conditions, restrictions or qualifications to the constitutional right of plaintiff to receive, during Ms term of office, the salary fixed by law and legally in effect at the time he was elected and took office as County Clerk and Sheriff respectively. We are now first called upon to determine the question of whether the attacMng of such conditions and restrictions by the Legislature effects or may effect a reduction of salary. The question propounded is one of power. Its solution does not depend on what the Legislature purposed or intended. The legal effect of the statute (§ 149), however, must be considered. We have stated in the Quayle case (supra) the effect of the legislative enactment. There we said: “ By the statute the Legislature has decreed that regardless of intention of the parties or general principles of contract, waiver or estoppel, failure to make timely protest shall bar recovery (p. 24). Except for the statute, we said, acceptance by a public officer of an amount less than the salary fixed by law does not, upon any principle of waiver, estoppel or accord and satisfaction, bar recovery of the full salary ” (p. 22). All parties are agreed as to the compulsory nature of the statute. By its express terms, failure to sign the receipt for the reduced salary under protest in writing on the face of the payroll shall be deemed to have made an accord and satisfaction of all claims against the city for wages or salary due.” Thus a statutory and compulsory accord and satisfaction is established, in effect for all purposes a reduction of salary by legislative fiat in spite of the constitutional provision that it cannot be done. Appellant takes the position that plaintiff can be compelled to serve at the reduced salary if he fails to comply with the terms of the statute. Construing the constitutional provision, modified in terms and effect as it would like to have it, the defendant says in its brief here that the thing protected by the Constitution was the amount of salary fixed for the office, as limited and qualified by the requirement that signature under protest be noted upon the payrolls ” (Italics ours). The salary of the officer is as effectively reduced by the statute as though the Legislature had spoken to that effect in express terms. There is nothing ambiguous or obscure in the constitutional provision. Its purpose and meaning are clear. Its purpose was to prohibit absolutely any increase or reduction in the salary of a constitutional State officer during the term of office for which he was appointed or elected, to prohibit the State government or any of its subdivisions or agencies, either by direction or indirection, to accomplish or make possible any such result. That purpose and intent cannot be frustrated by words, by the turn of a phrase, by act of the Legislature, or by judicial construction nor subverted or overthrown by indirection. Embracing, as it does, the whole right of respondent to receive his salary as fixed by law unhampered by policy or conditions other than those implicit in its express provisions and with a specific inhibition against its reduction during his term of office, no permission can be found in the constitutional provision or warranted by implication to the Legislature to effect a reduction of salary as a penalty for failure of the plaintiff to comply with a legislative condition precedent to receiving the whole or some specific part of it. The Constitution limits the power of the Legislature to the fixing of the salary to be paid. It directs the Legislature to exercise that power without qualification or condition. From such a positive direction, the implication necessarily follows that it forbade the Legislature to do anything contrary to the direction or attach any condition or qualification that would frustrate its purpose (People ex rel. Wood v. Draper, 15 N. Y. 532, 544; People ex rel. Bolton v. Albertson, 55 N. Y. 50). Authoritatively, Judge Allen restated and laid down the principles applicable to such an effort to subvert and frustrate a clearly stated constitutional purpose and to asserted legislative power as against higher constitutional authority in People ex rel. Bolton v. Albertson (supra) at page 55 where he said, among other things: “ A written Constitution must be interpreted and effect given to it as the paramount law of the land, equally obligatory upon the legislature as upon other departments of government and individual citizens, according to its spirit and the intent of its framers, as indicated by its terms. An act violating the true intent and meaning of the instrument, although not within the letter, is as much within the purview and effect of a prohibition as if within the strict letter; and an act in evasion of the terms of the Constitution, as properly interpreted and understood, and frustrating its general and clearly expressed or necessarily implied purpose, is as clearly void as if in express terms forbidden. A thing within the intent of a Constitution or statutory enactment is, for all purposes, to be regarded as within the words and terms of the law. A written Constitution would be of little avail as a practical and useful restraint upon the different departments of government, if a literal reading only was to be given it, to the exclusion of all necessary implication, and the clear intent ignored, and slight evasions or acts, palpably in evasion of its spirit, should be sustained as not repugnant to it. The restraints of the Constitution upon the several departments, among which the various powers of government are distributed, cannot be lessened or diminished by inference and implication; and usurpations of power, or the exercise of power in disregard of the express provision or plain intent of the instrument, as necessarily implied from all its terms, cannot be sustained under the pretence of a liberal or enlightened interpretation, or in deference to the judgment of the legislature, or some supposed necessity, the result of a changed condition of affairs. (1 Kent’s Com. 162; Barto v. Himrod, 4 Seld. 483; Taylor v. Porter, 4 Hill, 144; Warner v. People, 2 Den. 272; People v. N. Y. C. R. R. Co., 24 N. Y. 485; Schenectady Observatory v. Allen, 42 id. 404.) ”

Nevertheless, it is asserted that the enactment of section 149 was a constitutional exercise of power since it might be construed as an administrative provision for the benefit or convenience or safeguarding of the city or as a matter of public policy compelling compliance. Any expression found in other cases that a public officer might effect a waiver of his rights by failure to sign the payroll under protest as a matter purely of administrative procedure has no application to officers protected by the Constitution against reduction of salary. We are not dealing with the question of reasonableness of the legislative provision. We are not here interested in the equities. We are not dealing with policy, expediency or convenience as viewed by the Legislature.” It was not a personal privilege merely to receive the salary as fixed. It was a substantial and fundamental right. It did not partake solely of a personal interest. The constitutional provision was in the public interest as well. The policy of the State and the purpose of the enactment of the constitutional provision were specifically declared. As to those, the Constitution spoke with commanding authority (People ex rel. Battista v. Christian, 249 N. Y. 314; see Judd v. Board of Education, 278 N. Y. 200).

No defense of waiver has any application in this case.. Waiver is the “ voluntary and intentional relinquishment or abandonment of a known existing legal right, advantage, benefit, claim, or privilege, which except for such waiver the party would have enjoyed ” (67 C. J., p. 289). The right of plaintiff to receive the salary as claimed by him was fixed by the Constitution. In no manner is it asserted or can it be claimed that plaintiff abandoned the right guaranteed him by the Constitution, the right to receive the salary legally attaching to the office without diminution during the terms for which he was elected as County Clerk or Sheriff. At any event, the doctrine of waiver or estoppel has no application here (Matter of Sullivan v. Taylor, 279 N. Y. 364, 370).

The constitutional provision upon which plaintiff relies first became a part of the Constitution in 1874. It was readopted by the People in 1894 and in 1938. It is significant to note that the proposed method to circumvent the constitutional requirement was not adopted by the Legislature until 1912 (L. 1912, ch. 398), and then only in so far as it affected constitutional State employees within the city of New York and was not sought to be taken advantage of by that city until 1933. More significant still was the assertion of the appellant in this court in the Quayle case that there may have been a contravention of the constitutional provision by the city’s effort to reduce Quayle’s salary during his term of office and therefore no persistent objections ” should be made to the decision of the lower court against it in that respect.

The judgment should be affirmed, with costs.

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

Judgment reversed, etc-


author: Conway, J.

text:
    Nelson Canteline et al., Appellants, v. Glenn H. McClellan, Individually and as Commissioner of Police of the City of Buffalo, Respondent.
    Argued January 23, 1940;
    decided March 5, 1940.

      William B. Mahoney for appellants.
    Defendant’s threat of suspension and removal, based upon the demand upon plaintiffs to execute waivers of immunity, would give to the amendment to section 6 of article I of the State Constitution a retroactive effect in violation of plaintiffs’ constitutional rights. (O’Reilly v. Utah, N. & C. Stage Co., 87 Hun, 406; Isola v. Weber, 147 N. Y. 329; Jacobus v. Colgate, 217 N. Y. 235; Fawcett v. Andrews, 203 App. Div. 591; Micamold Radio Corp. v. Beedie, 282 N. Y. Supp. 77; City of Buffalo v. N. Y. Telephone Co., 1 N. Y. Supp. [2d] 842; Matter of Doyle, 257 N. Y. 244; Matter of Rouss, 221 N. Y. 81; Matter of Kaffenburgh, 188 N. Y. 49.) The amendment to section 6 of article I of the Constitution of the State of New York as of January 1, 1939, relative to execution of a waiver to avoid infliction of penalty is an ex post facto law and, therefore, violates clause 1 of section 10 of article 1 of the Constitution of the United States. (Cummings v. State of Missouri, 71 U. S. 277; Matter of Garland, 71 U. S. 333; Pierce v. Carskadon, 16 Wall. 234.)

      David Diamond, Corporation Counsel (Andrew P. Ronan of counsel), for respondent.
    The Appellate Division correctly determined that any public officer who refuses to execute a waiver of immunity when called before a grand jury after January 1, 1939, must be removed from office. (People v. Ahearn, 196 N. Y. 221; Matter of Newman v. Strobel, 236 App. Div. 371; Attorney-General v. Tufts, 239 Mass. 458.) The Appellate Division correctly determined that the appellants should be removed from office for failing to execute waivers of immunity. (Christal v. Police Com

      mission of City of San Francisco, 92 Pac. Rep. [2d] 416; McAuliffe v. Mayor of New Bedford, 29 N. E. Rep. 517.) It was correctly determined that police officers are public officers within the meaning of section 6 of article I of the Constitution. (People v. New York Central R. R. Co., 24 N. Y. 485; Perkins v. Smith, 116 N. Y. 441; Matter of Ehrsan, 37 App. Div. 272; Loewy v. Gordon, 129 App. Div. 459; City of New York v. Holzderber, 44 Misc. Rep. 509; Miller v. Miller, 18 Hun, 507; Callahan v. O’Brien, 72 Hun, 216; People ex rel. Wood v. Draper, 15 N. Y. 532; Matter of Ryan v. City of New York, 228 N. Y. 16; People v. Lafaro, 250 N. Y. 336; Matter of Dawson v. Knox, 231 App. Div. 490.)

      William C. Chanler, Corporation Counsel (Paxton Blair, Charles C. Weinstein and Stanley Buchsbaum of counsel), for City of New York, amicus curiæ.

    The amendment to section 6 of article I of the New York Constitution is applicable to all appearances before a grand jury or refusals to waive immunity occurring subsequent to the effective date of the amendment. (People ex rel. Lewisohn v. Court of General Sessions, 96 App. Div. 201; 179 N. Y. 594; People ex rel. Lewisohn v. O’Brien, 176 N. Y. 253; Palko v. Connecticut, 302 U. S. 319; Twining v. New Jersey, 211 U. S. 78; Matter of Lee’s Bank of Buffalo, 21 N. Y. 9; Sherman v. Smith, 1 Black [U. S.], 587; Matter of Newman v. Strobel, 236 App. Div. 371; Attorney-General v. Tufts, 239 Mass. 458; People v. Ahearn, 196 N. Y. 221; Christal v. Police Commission, 92 Pac. Rep. [2d] 416; Souder v. City of Philadelphia, 305 Penn. St. 1.) The application of the amendment to questions concerning official conduct prior to January 1, 1939, does not render it violative of the ex post facto clause of section 10 of article I of the Federal Constitution. (Calder v. Bull, 3 Dall. 386; Watson v. Mercer, 8 Pet. 88; Carpenter v. Pennsylvania, 17 How. 456; People ex rel. Powers v. Welles, 18 App. Div. 132; Matter of Roge v. Valentine, 280 N. Y. 268; People ex rel. Hayes v. Waldo, 212 N. Y. 156; Hawker v. New York, 170 U. S. 189; Reetz
      v. Michigan, 188 U. S. 505; Murphy v. Ramsey, 114 U. S. 15.) Policemen are public officers. (People ex rel. Wood v. Draper, 15 N. Y. 532; People v. Lafaro, 250 N. Y. 336; Matter of Ryan v. City of New York, 228 N. Y. 16; Woodhull v. Mayor, 150 N. Y. 450; Mangam v. City of Brooklyn, 98 N. Y. 585; People ex rel. Ryan v. French, 91 N. Y. 265; McKay v. City of Buffalo, 9 Hun, 401; 74 N. Y. 619; People ex rel. Seward v. Village of Sing Sing, 54 App. Div. 555.)

      John J. Bennett, Jr., Attorney-General (Henry Epstein of counsel), amicus curiæ.

    Section 6 of article I of the State Constitution, as amended and effective January 1, 1939, embraces within its scope acts which may have occurred prior to the effective date. (People v. Ahearn, 196 N. Y. 221; Matter of Newman v. Strobel, 236 App. Div. 371; Attorney-General v. Tufts, 239 Mass. 458.)
   Conway, J.

The appellants are police officers of the city of Buffalo and have been commanded by the defendant Commissioner to attend before a grand jury and there to execute a waiver of immunity pursuant to article I, section 6, of the Constitution of the State of New York. They have attended at the grand jury but have declined to sign a waiver of immunity against subsequent criminal prosecution with respect to their conduct in office or their performance of official duties prior to January 1, 1939, the effective date of the present Constitution. They have brought this action asking for a declaration of their legal rights and duties in view of the threat of the defendant to suspend and prefer charges against them for a violation of department rules in failing to obey his command to execute the waiver. The Appellate Division reversed on the law the judgment of the Trial Term granting injunctive relief to plaintiffs and dismissed the complaint.

The applicable provisions of the Constitution are as follows: * * * No person shall be subject to be twice put in jeopardy for the same offense; nor shall he be compelled in any criminal case to be a witness against himself, providing, that any public officer who, upon being called before a grand jury to testify concerning the conduct of his office or the performance of his official duties, refuses to sign a waiver of immunity against subsequent criminal prosecution, or to answer any relevant question concerning such matters before such grand jury, shall be removed from office by the appropriate authority or shall forfeit his office at the suit of the attorney-general.” (State Const. art. I, § 8.)

That the plaintiffs are public officers there is no doubt. (People ex rel. Wood v. Draper, 15 N. Y. 532; Matter of Ryan v. City of New York, 228 N. Y. 16; People v. Lafaro, 250 N. Y. 336.) They claim, however, that the Constitution speaks prospectively and, therefore, the waiver required is only as to acts subsequent to January 1, 1939.

It is unnecessary to repeat the rules of construction which were properly enunciated and applied below. Suffice it to point out that we are dealing with a sovereign act of a sovereign people. The People of the State may write such provisions into their Constitution as they see fit, without let or hindrance, subject only to the applicable portions of the Constitution of the United States. As to immunity from self-incrimination, there is no such applicable provision and such grant could have been omitted in its entirety from the present Constitution of our State. (Twining v. State of New Jersey, 211 U. S. 78; Snyder v. Massachusetts, 291 U. S. 97, 105; Palko v. Connecticut, 302 U. S. 319, 325.) This, however, was not done. It was continued with the proviso indicated.

The People, in their new Constitution, could have abolished any or every public office in the State or changed the tenure of any office. Public officers are the servants of the People and the latter may say upon what terms they shall be engaged or continue in office after their engagement. Nothing limits the power of the People in this respect save a written constitution and it is a written constitutional provision which we are construing. We find nothing there which says that the waiver required must be limited to acts occurring subsequent to January 1, 1939. We may not Write it in. The duty of the courts is to construe, not to adopt, a constitution.

It is urged that injustice may be wrought upon public officers who have served for long periods of time and who are approaching the time when they will be entitled to retire upon pensions toward which they have contributed. This may very well be. We may feel as individuals that it would have been fairer to have made the proviso applicable to acts or omissions subsequent to January 1st, 1939, or, even, only to persons who became public officers after January 1st, 1939. As a court we may not consider these arguments. It is a question of power. The People had the power to accomplish that which in plain words they said they wished to accomplish. They are sovereign.

No penalty for acts done in the past, for which no penalty was then prescribed, has been provided. It might be urged that such would be the case were it provided that removal from office would follow from a refusal to waive immunity occurring prior to January 1st, 1939. Even in such case, the People could provide in a constitution that no one should hold public office who had ever refused to sign a waiver of immunity. They have the power, by a constitution, to set conditions, with which there must be compliance, if one is to be or continue to be a public officer. Immunity may still be claimed. If claimed, one may not continue as a public officer.

A similar question, although under a city police department rule, was presented in California in Christal v. Police Commission of San Francisco (92 Pac. Rep. [2d] 416.) One of the paragraphs of the decision is apt:

We are not unmindful of the constitutional privilege above mentioned which may be exercised by all persons, including police officers, in any proceeding, civil or criminal. In re Lemon, supra; In re Hoertkorn, supra. As we view the situation, when pertinent questions were propounded to appellants before the grand jury, the answers to which questions would tend to incriminate them, they were put to a choice which they voluntarily made. Duty required them to answer. Privilege permitted them to refuse to answer. They chose to exercise the privilege, but the exercise of such privilege was wholly inconsistent with their duty as police officers. They claim that they had a constitutional right to refuse to answer under the circumstances, but it is certain that they had no constitutional right to remain police officers in the face of their clear violation of the duty imposed upon them. McAuliffe v. Mayor of New Bedford, 155 Mass. 216; 29 N. E. 517. We are of the opinion that such a violation of duty would constitute cause for dismissal even in the absence of any specific rule requiring such officers to give testimony before the grand jury, or of any specific rule relating to conduct unbecoming an officer ’ (p. 419).

Even under a State statute, the requirements for continuance in a profession may be so changed that a practitioner may be barred from further practice and sent to prison if he persist. Thus in Hawker v. New York (170 U. S. 189) a doctor was convicted in 1878 of the crime of abortion and sentenced to ten years in the penitentiary. In 1893 the Legislature enacted a law which provided that any person * * * who, after conviction of a felony, shall attempt to practice medicine, or shall so practice * * * shall be guilty of a misdemeanor * * * ” (L. 1893, ch. 661, § 153, as amd. L. 1895, ch. 398, § 1.) In 1878 no such penalty existed. In 1896 Hawker was convicted of a violation of that law by virtue of his conviction in 1878. The court there decided that it was within the power of the State so to change the requirements for the practice of medicine under the police power of the State; that the new requirement was not unreasonable and that the statute of 1893 did not violate the prohibition against passage of an ex post facto law.

There is no impairment of contract right involved. (Hendon v. Board of Education, 281 N. Y. 757; Dodge v. Board of Education, 302 U. S. 74.)

The judgment should be affirmed, with costs.

Lehman, Ch. J., Loughran and Finch, JJ., concur; Rippey, J., dissents; Sears and Lewis, JJ., taking no part.

Judgment affirmed.


author: Lewis, J.

text:
    Associated Flour Haulers & Warehousemen, Inc., Respondent, v. Nat Hoffman, as President of International Brotherhood of Teamsters, Local No. 138, et al., Defendants, and Triborough Transportation Corporation, Appellant.

      Argued January 11, 1940;
    decided March 5, 1940.

      George Natanson and J. Wm. Rosenbluth for appellant.
    The complaint fails to state a cause of action against the appellant. (Morgan v. Ebco Machine Corp., 239 App. Div. 346; Skinner Bros. Mfg. Co. v. Shevlin Engineering Co., 231 App. Div. 656; Ultramares Corp. v. Touche, 255 N. Y. 170; Thompson Co. v. Winchell, 244 App. Div. 195; Campbell v. Gates, 236 N. Y. 457; DuRoy & Le Maistre, Inc., v. Gillmore, 246 App. Div. 37; 272 N. Y. 454; Union Car Advertising Co. v. Collier, 263 N. Y. 386; Van Wyck v. Mannino. 256 App. Div. 256.)

      Jacob M. Mandelbaum for respondent.
    There is a valid existing agreement between plaintiff and its members, defendant international and defendant locals 138, 202 and 807, under the terms of which local 138 alone has the sole and exclusive labor-supplying agency for the hauling of flour in Greater New York. (Kessler v. Haile Motor Co., 127 Misc. Rep. 413; Waldorf-Astoria Segar Co. v. Salomon, 109 App. Div. 65; 184 N. Y. 584; Standard Fashion Co. v. Siegel-Cooper Co., 157 N. Y. 60; St. Regis Paper Co. v. S. C. Lumber Co., 173 N. Y. 149.) Even if plaintiff be not deemed a party to the agreement it is at least a third-party beneficiary thereof, being a member of a class for whose benefit the exclusive labor-supplying agency was conferred, and, therefore, entitled to enforce the agreement in equity. (Thomas v. Hens, 219 App. Div. 627; Wood v. Macafee, 191 App. Div. 937; Kessler v. Haile Motor Co., 127 Misc. Rep. 413; Strong v. American Fence Constr. Co., 245 N. Y. 48; Seaver v. Ransom, 224 N. Y. 233; Rainville v. Keil, 148 Misc. Rep. 795; Morrison v. Gentler, 152 Misc. Rep. 710; Dougherty v. Rockaway Operating Co., 163 Misc. Rep. 806; Vrooman v. Turner, 69 N. Y. 280; Pond v. New Rochelle Water Co., 183 N. Y. 330.) The complaint states a cause of action against the defendant-appellant for knowingly and maliciously interfering with the plaintiff’s contractual rights and intentionally inducing a breach by the defendant local 202 of its contractual duties to the plaintiff. (Hornstein v. Podwitz, 254 N. Y. 443; New York Bank-Note Co. v. Hamilton Bank-Note Engraving & Printing Co., 83 Hun, 593; Standard Fashion Co. v. Siegel-Cooper Co., 30 App. Div. 564; 157 N. Y. 60; Pond v. New Rochelle Water Co., 183 N. Y. 330; Waldorf-Astoria Segar Co. v. Salomon, 109 App. Div. 65; 184 N. Y. 584.)
   Lewis, J.

The defendant-appellant has thus far failed in its challenge to the sufficiency of the complaint herein which comes to us for review by leave of the Appellate Division, upon the certified question: Does the complaint state facts sufficient to constitute a cause of action against the defendant Triborough Transportation Corp.? ”

The plaintiff is a membership corporation composed of twenty-three corporations, firms and individuals engaged in hauling flour in' the city of New York from storage depots, railroad terminals and steamships to customer-consignees. The hauling is done by motor trucks manned by chauffeurs and skilled helpers whose labor union affiliations relate themselves to the question to be determined.

Among the five defendants against which the plaintiff seeks injunctive relief, are four labor union affiliates of the American Federation of Labor, a nation-wide organization composed of local labor groups each of which is known either as a “ Local ” or an International.” A Local ” — such as the first three defendants named in the title to this action — is an organization of local workmen whose union activities are restricted within limits defined by a charter issued by an “ International ” — • such as the fourth defendant named herein — which is a subsidiary body of the American Federation of Labor with administrative functions including the granting of charters to Locals.”

We are here concerned only with an appeal by the fifth defendant, Triborough Transportation Corp. which is engaged in the business of flour hauling in the city of New York but is not one of the twenty-three members which comprise the plaintiff corporation.

The complaint is an involved pleading dealing chiefly with plaintiff’s grievance against the four labor unions named as defendants. To gain a clear understanding of the plaintiff’s charge against the defendant Triborough Transportation Corp. requires us to outline the entire pleading.

By what appears to be a prologue to the complaint the plaintiff alleges that, because substantially all chauffeurs and helpers engaged in the hauling of flour in the city of New York are members of “ Locals ” affiliated with the American Federation of Labor, “ it is practically impossible for one to engage in [that] business * * * without first becoming unionized and agreeing to employ members of the local which has been chartered by the American Federation of Labor or its affiliate to supply labor for flour hauling purposes in Greater New York.” Among the affiliates of the American Federation of Labor is the defendant “ International ” of which Daniel J. Tobin is president and which, prior to October 3, 1938, had granted charters to the three defendants — Local Union No. 138, Local Union No. 202 and Local Union No. 807. None of the three charters thus granted is set forth in the complaint. Plaintiff alleges, however, that The charter so issued to Local 138 granted to the latter and its members, so far as the American Federation of Labor was concerned, the sole and exclusive right to haul flour in Greater New York ” and that charters issued by the International to Locals 202 and 807 granted * * * the right to haul commodities other than flour in Greater New York.”

In that connection it is further alleged that by reason of the provisions of its charter and the accepted practice, Local No. 138 has supplied all labor required for hauling flour in Greater New York and that under their own charters Locals 202 and 807 are not permitted to supply labor for flour hauling purposes; that by reason of the dominance and control by the American Federation of Labor of the workmen engaged in the hauling of flour in Greater New York ” and on October 3, 1938, the plaintiff and each of its members entered into an agreement with Local 138 covering the wages, hours and other conditions of employment of the members of that “ Local,” a copy of which agreement is annexed to the complaint.

Despite the alleged fact that the membership of Local No. 138_ consists substantially of skilled chauffeurs and helpers engaged exclusively in hauling flour and who are sufficient in number to do all the flour hauling required in Greater New York, the defendants Locals 202 and 807 — ■ whose union charters disqualify their members from hauling flour — are supplying labor for flour hauling purposes to employers who are primarily engaged in the hauling of commodities other than flour and who are under contractual relations with either Local 202 or 807 and not with Local 138. By reason of these practices by Locals 202 and 807, which are alleged to be in violation of their respective charters, the employers of chauffeurs and helpers in the flour hauling industry, who are under contractual relations with Locals 202 and 807, have diverted and are continuing to divert a substantial portion of the business of plaintiff’s members by offering hauling service at a lower charge made possible by the fact that the bases for their labor cost under their contracts with Locals 202 and 807 provided lower wage scales and afforded other advantages not enjoyed by plaintiff’s members under their contracts with Local 138; that the employers who are being supplied with flour haulers by Locals 202 and 807 are using such labor, and the officers of those locals are furnishing such labor, with full knowledge of the provisions of the union charter granted to Local 138 which gives to it the exclusive privilege of supplying labor for hauling flour in Greater New York.

Having protested without avail to the officials of Local 138 and to the International against the acts by Locals 202 and 807 which are said to be in violation of their charters, the plaintiff charges that the course of conduct by Locals 202 and 807 and all employers who are accepting labor from those locals for the purpose of flour hauling, constitutes a wanton and malicious interference with the rights of plaintiff’s members which, if permitted to continue, will prevent plaintiff’s members from exercising a lawful calling.

We thus reach plaintiff’s charge against the single appellant Triborough Transportation Corp. It is alleged in substance that the appellant is under a contractual relation with Local 202 covering wages, hours and other conditions of employment of its members; that despite full knowledge of the fact that the members of Local 138 are required by its charter to be employed exclusively in the hauling of flour in Greater New York and that Local 202 is exceeding the scope of its charter by supplying its members for service as flour haulers, the appellant is engaged in flour hauling in that territory at a lower price than that at which such service is offered by plaintiff’s members due to the fact that appellant’s contract with Local 202 has a more favorable wage scale and other advantages not enjoyed by plaintiff and its members under their contracts with Local 138; that by reason of the fact that appellant is employing labor furnished by Local 202, it is diverting a substantial portion of flour hauling business from the plaintiff’s members who are thereby subjected to substantial and irreparable injury.

By its prayer for relief the plaintiff demands a decree in equity declaring that as to Locals 202, 807 and the defendant ‘ international ’ Local 138 shall * * * have the sole and exclusive right to supply labor for the hauling of flour in Greater New York until the expiration of the contracts between plaintiff, its members and Local 138,” and that flour hauling by members of Locals 202 and 807 shall be deemed a violation of the contracts between plaintiff, its members and the defendant Local 138.

As against the defendant-appellant, Triborough Transportation Corp., plaintiff demands that the appellant be enjoined and restrained from engaging in the hauling and delivery of flour in Greater New York until the expiration of the contracts between plaintiff, its members and Local 138 unless such hauling is done by members of Local 138 on the terms, conditions and regulations established by the contract between the plaintiff, its members and Local 138.

The inquiry suggested by the question certified by the Appellate Division requires us to proceed upon the assumption that the facts alleged in the complaint are true. Upon that assumption we are asked by the plaintiff, as respondent before us, to view the complaint as alleging facts which establish a valid agreement between the defendant International and the three defendant Locals 138, 202 and 807 which came into existence as a matter of legal implication when each of the three locals accepted its charter from International. It is said that by this implied contract the defendant Locals 202 and 807 recognized in Local 138 the exclusive right to supply labor for hauling flour in New York city and that by undertaking to confine their activities within the scope of their own charters they impliedly agreed not to infringe upon the exclusive privilege of Local 138. The plaintiff disclaims an intent to base its present right to relief upon its wage and hour agreement with Local 138 but claims to be a third party beneficiary of the implied contract, mentioned above, to which it claims the three defendant locals became parties when they accepted charters from the International. It is as such a third party beneficiary that plaintiff asserts its present demand for injunctive relief against the appellant Triborough Transportation Corp., which is charged with knowingly inducing a breach by Local 202 of its implied contractual duties to Local 138 to refrain from supplying labor for flour hauling in the city of New York.

Giving to the plaintiff the benefit of all implications fairly to be drawn from the complaint and assuming, without deciding, that an implied contract among the three defendant locals came into existence when they accepted their charters from International, we find no basis for the relief demanded by the plaintiff against the defendant Triborough Transportation Corp.

Considering first the theory of an implied contract among the three defendant locals, which forms the basis of plaintiff’s argument, the missing factor is a manifest intention that the promisor — the defendant Local 202 — is answerable to employers such as the plaintiff’s members, for loss ensuing from its failure to fulfill its implied promise to Local 138. The benefit must be one that is not merely incidental. It must be immediate in such a sense and to such a degree as to indicate the assumption of a duty to make reparation if the benefit is lost. (Moch Co. v. Rensselaer Water Co., 247 N. Y. 160, 164; Fosmire v. National Surety Co., 229 N. Y. 44, and see American Law Institute, Restatement of the Law of Contracts, § 147; 2 Williston on the Law of Contracts [Rev. ed.], §§ 402, 403.) The complaint before us will not permit us to indulge in implications broad enough to satisfy this settled rule.

Undoubtedly a cause of action exists where one having knowledge of an existing valid contract between others intentionally, knowingly and without reasonable justificatian induces one of the parties to breach the contract with resulting damage to the other. Such an action, however, is predicated upon an intentional interference, without justification, with known contractual rights possessed by the party suing. (Hornstein v. Podwitz, 254 N. Y. 443, 448; Campbell v. Gates, 236 N. Y. 457, 460.) In the case at bar the plaintiff has failed by its pleading to qualify itself either as a party to or a third party beneficiary of the implied contract which it asserts existed among the three defendant locals. It follows that the relief sought by the plaintiff against the defendant-appellant Triborough Transportation Corporation, based upon afiegations that the appellant interfered with known contractual rights to which the plaintiff was entitled and intentionally induced a breach thereof, must be denied and the complaint herein dismissed as to the appellant.

The orders should be reversed and the complaint against the appellant dismissed, with costs in all courts. The question certified is answered in the negative.

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

Orders reversed, etc.


text:
    In the Matter of Ernest L. Schwab, Appellant, against John J. McElligott, as Commissioner of the Fire Department of the City of New York and as Trustee of the New York Fire Department Relief Fund, et al., Respondents.

      Submitted January 8, 1940;
    decided March 5, 1940.

      George Rosling for appellant.
    The Fire Commissioner’s determination as to whether or not the disability of petitioner is service connected is reviewable under article 78 of the Civil Practice Act. (Hodgins v. Bingham, 196 N. Y. 123; Matter of Brand v. Teachers’ Retirement Board, 163 Misc. Rep. 217; People ex rel. Young v. Sturgis, 85 App. Div. 20; 176 N. Y. 563; People ex rel. Cunningham v. Hayes, 66 Misc. Rep. 531; Matter of Walsh v. McElligott, 169 Misc. Rep. 457.)

      William C. Chanler, Corporation Counsel (Charles F. Murphy of counsel), for respondent.
    The Fire Commissioner acted within his administrative discretion in retiring petitioner pursuant to section B 19-5.0 of the Administrative Code (L. 1937, ch. 929). There is nothing in the record to show any abuse of discretion. The petition was properly dismissed. (Matter of Sheridan v. McElligott, 278 N. Y. 59; Matter of Strauss v. Hannig, 256 App. Div. 662; 281 N. Y. 612; Matter of Potts v. Kaplan, 264 N. Y. 110; Matter of Nash v. Brooks, 276 N. Y. 75; Matter of Phillips v. McElligott, 279 N. Y. 792; Matter of Walsh v. McElligott, 169 Misc. Rep. 457.)
   Lewis, J.

The petitioner, a lieutenant in the Fire Department of the City of New York, with service in excess of twenty-five years to his credit, has been retired by the respondent Fire Commissioner by an order awarding a pension which the petitioner contends is less than the amount to which he is entitled as of right under chapter 19, title B, article I, section B 19-5.0 of the Administrative Code. (L. 1937, ch. 929, p. 304.)

Resisting his retirement thus directed and objecting to the amount of the pension, the petitioner instituted this proceeding under article 78 of the Civil Practice Act to review the respondents’ order. The proceeding reaches us upon the petitioner’s appeal, by leave of this court, from an order of the Appellate Division unanimously affirming an order of the Supreme Court which denies the petitioner’s prayer for relief and grants the respondents’ cross-motion to dismiss the petition under section 1293 of the Civil Practice Act.

As the petition was dismissed at Special Term by reason of its legal insufficiency, our inquiry will proceed upon the assumption that the following facts alleged therein are true: On April 10, 1937, while responding with his company to a fire call, the petitioner fell through a floor opening in the burning building and sustained personal injuries which partially and permanently disabled him. Since that time he has been unable to perform active service as a member of the uniformed force of the Fire Department but is able to perform such “ light duties ” as are assigned to officers or members similarly situated.

Prior to the commencement of this proceeding and in accord with an order of the respondent Fire Commissioner, the petitioner appeared before a board of medical officers of the Fire Department assigned to examine the petitioner as to whether he was disqualified physically or mentally for service as a member of the uniformed force. Thereafter the medical officers reported that the petitioner was totally and permanently disqualified physically for the performance of active duties and that such disqualification was not caused or induced by the active performance of the duties of his position. Thereupon the respondent Fire Commissioner directed the petitioner’s retirement by an order which also awarded him an annual pension of $1,950, being one-half the annual salary he had been paid immediately prior to the date of such order. The petitioner has since been divested of the insignia of his office, forbidden to perform duties incident thereto and has been dropped from the rolls of the Department. Among other forms of relief sought by this proceeding, he demands reinstatement in the Department or an order declaring that his injuries were sustained in the performance of duty, thus entitling him to a pension equal to three-fourths of his annual salary at the date of his retirement.

The respondents did not serve an answer to the petition. Instead, as was their right under section 1293 of the Civil Practice Act, they moved for an order dismissing the petition as a matter of law, upon the ground that it failed to state facts sufficient to constitute a cause of action. Under settled law relating to such procedure (Nevins, Inc., v. Kasmach, 279 N. Y. 323, 325; Lamb v Cheney & Son, 227 N. Y. 418, 420) the respondents thus admitted the facts outlined above and in addition conceded the truth of facts asserted in the allegation by the petitioner that The report of such medical officers and the order of the respondent, Fire Commissioner, based thereon are not founded on fact and are in derogation of valuable property rights which have accrued to petitioner by reason of his service in such Fire Department of the City of New York, and are in violation of law, arbitrary, capricious and an abuse of any discretion.”

The respondents have thus placed themselves in an anomalous position. In support of the order here on appeal they ask us to rule that the Fire Commissioner’s order, which is based on a report by the board of medical officers and directs the petitioner’s involuntary retirement, was in the exercise of discretion and accordingly not reviewable. But such a ruling would be inappropriate to the present record which, as we have seen, contains respondents’ admission that the report of the medical officers was not founded on fact, from which it follows that the order of the Fire Commissioner based thereon was necessarily arbitrary and capricious.

The field is limited within which the discretion of an administrative officer or board may be exercised unhampered by judicial review. (People ex rel. Schau v. McWilliams, 185 N. Y. 92, 100.) We think that limit is surpassed by the present record. In the absence of a clear expression by the Legislature to the contrary, the courts may review the exercise of a discretionary power vested in an administrative officer or body to determine whether the case discloses circumstances which “ leave no possible scope for the reasonable exercise of discretion in such manner.”/ (Matter of Durr v. Paragon Trading Corp., 270 N. Y. 464, 469; People ex rel. Lodes v. Department of Health, 189 N. Y. 187, 194; Matter of Larkin Co. v. Schwab, 242 N. Y. 330, 334, 335; Matter of Leone v. Brewer, 259 N. Y. 386, 390; Matter of Picone v. Comr. of Licenses, 241 N. Y. 157, 160-162; Matter of Small v. Moss, 277 N. Y. 501, 513; People ex rel. Sweeney v. Rice, 279 N. Y. 70, 73.)

The position of the respondents is not fortified by the rulings in Matter of Sheridan v. McElligott (278 N. Y. 59) and Matter of Phillips v. McElligott (279 N. Y. 792) upon which rest the decision at Special Term and the affirmance by the Appellate Division. In each of those cases an allegation in the petition of an abuse of discretion was met by a denial in an answering affidavit and the issue thus tendered was tried before a jury. In each instance, however, the evidence offered by the petitioner was insufficient to support a finding that discretion had been abused. The dismissal in each instance followed a failure of proof — not a failure to state a cause of action — and made applicable the rule that The mere existence of differences of opinion as to the petitioner’s physical fitness would not warrant a finding by this court that a determination made by the Board to act on the advice of its own medical staff was arbitrary or capricious.” (Matter of Strauss v. Hannig, 256 App. Div. 662, 664; affd., 281 N. Y. 612.)

The orders should be reversed, with costs in all courts, and the respondents’ cross-motion to dismiss the petition pursuant to section 1293 of the Civil Practice Act denied, with leave to the respondents to serve an answer within ten days after the service upon them of a copy of the order entered upon this appeal and notice of entry thereof.

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

Ordered accordingly.


text:
    Louis Moller, Appellant, v. New York Central Railroad Company, Respondent.
    Argued January 12, 1940;
    decided March 5, 1940.

      Herman Spingarn for appellant.
    The ruling of the Special Term that the action was against the State in the first instance was a disregard of the inviolability of the general jurisdiction of the Supreme Court as guaranteed by section 1 of article 6 of the State Constitution. (Story v. N. Y. Elev. R. R. Co., 90 N. Y. 122; Matter of Malloy, 278 N. Y. 429.) Section 6 of the New York City Grade Crossing Elimination Act (L. 1928, ch. 677, as amd.) does not provide the exclusive remedy for the overlooked abutter. (Klin Co. v. N. Y. Rapid Transit Corp., 271 N. Y. 376; N. Y. Const. art. I, § 6; Story v. N. Y. Elev. R. R. Co., 90 N. Y. 122; Matter of Malloy, 278 N. Y. 429.)

      K. O. Mott-Smith and Clive C. Handy for respondent.
    It was properly held that the Supreme Court was without jurisdiction. (Askey & Hogar, Inc., v. State, 240 App. Div. 451; 266 N. Y. 587; Caldwell & Ward Brass Co. v. State, 161 Misc. Rep. 147; 251 App. Div. 781; 277 N. Y. 547.) Plaintiff’s claim for damage to easements of light, air and access is governed by section 7 of chapter 677 of the Laws of 1928. (Caldwell & Ward Brass Co. v. State of New York, 161 Misc. Rep. 147; 251 App. Div. 781; 277 N. Y. 547; Harrison v. New York Central R. R. Co., 255 App. Div. 183; 281 N. Y. 653.)
   Lewis, J.

We are to determine whether the Supreme Court has jurisdiction to award damages claimed by a landowner for injury to the fee of his land and the impairment of easements of light, air and access in an abutting public street in which an elevated railroad structure has been erected as a part of work concededly completed pursuant to the New York City Grade Crossing Elimination Act (L. 1928, ch. 677, as amd.; McKinney’s Cons. Laws, Book 65, §§ 2041-2056).

The question is presented by plaintiff’s appeal, on constitutional grounds, from a judgment entered upon an order of the Appellate Division unanimously affirming a judgment of Special Term which dismissed the complaint herein without prejudice and solely for lack of jurisdiction.

The appellant, since 1922, has been the owner of a building at the northeast corner of Tenth avenue and West Thirtieth street in the city of New York. In the year 1933, as a part of the public improvement provided for by the New York City Grade Crossing Elimination Act, the railroad tracks formerly maintained by the respondent at grade in Tenth avenue were replaced on an elevated steel viaduct. By the present action in equity the appellant seeks to enjoin the respondent from operating its railroad on the elevated structure and to require respondent to remove such structure or, in the alternative, to pay the appellant damages for injury to the fee of his property and the impairment of appurtenant easements of light, air and access.

The appellant asserts that the erection of the elevated structure in 1933 and respondent’s occupancy and use thereof since that time for purposes of railroad operation, were without authority or right; that appellant never consented to the erection of the elevated structure or to the use to which it has been put and that no proceedings have been taken by the respondent or in its behalf to condemn the property rights of the appellant or to compensate him for property rights thus injured.

The record comes to us in the form of a bill of exceptions in which the following facts are stipulated: That the fee to lands within the boundaries of Tenth avenue and West Thirtieth street has been in the Mayor, Aldermen and Commonalty of the City of New York since 1815 and 1841 respectively; that in conformity with the charter granted by the Legislature in 1846 to The Hudson River Railroad Company, respondent’s corporate predecessor, and by permission given by the city of New York in 1847, The Hudson River Railroad Company and its successors have maintained tracks and operated a railroad since 1851 at grade through Tenth avenue, at or near its intersection with West Thirtieth street, until 1933, when such tracks were removed from the street surface at that intersection and replaced upon an elevated steel structure; that the railroad grade crossing elimination on Tenth avenue at West Thirtieth street was accomplished in accord with the requirements of chapter 677 of the Laws of 1928, as amended, which is commonly known as the New York City Grade Crossing Elimination Act, and by which the Legislature provided for the alteration of the grade crossings of respondent’s railroad on the west side of the borough of Manhattan; that after public hearings, held upon statutory notice, the New York Transit Commission entered orders by which it determined that public welfare required the elimination of certain grade crossings of respondent’s railroad on the west side of the borough of Manhattan as a part of and in accord with a plan which was thereby approved; that thereafter the Transit Commission directed respondent to join with the city of New York in carrying out such plan which included the removal of respondent’s rails from the street surface in Tenth avenue at West Thirtieth street and the erection of an elevated steel structure upon which respondent’s railroad should be operated; that in accord with an agreement between the city of New York and the respondent, approved by the Transit Commission, as required by statute, the city conveyed to the respondent “ the permanent rights and easements for the construction, equipment, maintenance and operation of the [respondent’s] railroad * * * without interference or right of interference, as changed in location and grade as shown upon the Enlarged Plan, upon a viaduct structure with the necessary columns, foundations and supports thereof, to be constructed by * * * ” the respondent, in the manner indicated upon the enlarged plan, over numerous parcels of land in the borough of Manhattan, including parcel No. 36, located within the street lines at or near thfe intersection of Tenth avenue and West Thirtieth street; that thereafter, in accord with orders of the Transit Commission and under its supervision, the respondent performed the work necessary to accomplish the elimination of its highway grade crossing at the intersection of Tenth avenue and West Thirtieth street.

Against this background of stipulated facts we may consider the appellant’s position that in choosing the tribunal in which to bring his present action he properly invoked the general jurisdiction of the Supreme Court. The Special Term and the Appellate Division have ruled in effect that, under applicable statutes, the appellant’s claim is against the State of New York — not against the respondent— and, accordingly, that it is enforceable only in the Court of Claims.

In support of the appellant’s position we are told that to rule that the Court of Claims has exclusive jurisdiction of the action now before us would encroach upon the “ general jurisdiction ” of the Supreme Court as defined by section 1 of article VI of the Constitution.

We believe that appellant’s argument disregards a clause in section 7 of article I of the Constitution which was effective when issue was joined in the present action. When private property shall be taken for any public use, the compensation to be made therefor, when such compensation is not made by the state, shall be ascertained by a jury, or by the supreme court with or without a jury, but not with a referee, or, * * * by not less than three commissioners appointed by a court of record, as shall be prescribed by law.” (Cf. State Const. art. I, § 7, effective Jan. 1, 1939.)

Under this constitutional provision the inquiry suggests itself whether the alleged damage to plaintiff’s property and appurtenant easements constitute a taking of private property “ for any public use.” If so, has the Legislature made provision for compensation by the State within the qualifying clause of section 7 of article I?

The answer to the first query is found in the stipulated fact that the erection of the elevated steel structure of which plaintiff complains was a part of a project for grade crossing elimination in the city of New York which was accomplished after the Transit Commission, proceeding in accord with the New York City Grade Crossing Elimination Act, had determined that public welfare required the elimination of the highway grade crossings of respondent’s railroad at or near appellant’s property and had ordered the respondent to join with the city in carrying out such elimination under supervision by the Transit Commission.

The Legislature has answered the second query by providing that if private property is taken in carrying out the grade crossing elimination project, it is the people of the state of New York, their officers and agents,” who are given the right of entry and possession thereof; it is “ the people of the state ” in whom vests the title to any property so taken. (L. 1928, ch. 677, § 6, subds. 3, 4; McKinney’s Cons. Laws, Book 65, § 2046.) The statute last cited thus makes it clear that if, as claimed by the appellant, he has suffered damage to the fee of his property or if appurtenant easements have been impaired, the taking was by the State, not by the respondent railroad, in which event, under subdivision 8 of section 6, a claim for the value of the property so taken and damages caused thereby may be presented to the Court of Claims and any award shall be paid in accord with the practice of that court and from designated State funds. (L. 1928, ch. 677, § 6, subd. 8.)

That the respondent railroad is not to be charged in the first instance with liability for property taken is again emphasized by section 7 of the same act: “ If the work of such elimination causes damage to property not acquired as above provided, the state shall be liable therefor in the first instance, but this provision shall not be deemed to create any liability not already existing in law.” (L. 1928, ch. 677, § 7.) Then follows a provision that if such a claim is not adjusted by the Transit Commission it may be presented to the court of claims which is hereby authorized to hear such claim and determine if the amount of such filfl.im or any part thereof is a legal claim against the state and if it so determines, to make an award and enter judgment thereon against the state, provided, however, that such claim is filed with the court of claims within six months after final approval of the elimination work by such commission.” (L. 1928, ch. 677, § 7.)

We thus find that whether the alleged loss of property rights of which the appellant complains is to be dealt with under section 6 of the act, as the appellant’s brief suggests, or under section 7, as claimed by the respondent, the Legislature, in either event, has provided that where, as is conceded here, the elimination is in the interest of public welfare and is accomplished pursuant to the New York City Grade Crossing Elimination Act, any private property taken is acquired by the State, not by the respondent. Having made the State responsible in the first instance for the taking of private property necessary to the elimination project, the Legislature has given assurance to the aggrieved owner that compensation for property thus taken will be paid by the State if a timely claim therefor is presented to the Court of Claims and a judgment is rendered determining the State’s legal liability.

As the statute thus makes provision for compensation [to be] made by the state ” within the qualifying clause found in section 7 of article I of the Constitution, we conclude that the Court of Claims, the tribunal designated by the Legislature to determine the State’s liability, has exclusive jurisdiction to grant the relief to which the appellant is entitled. (See Cox v. City of New York, 265 N. Y. 411, 414.) We do not pass upon the merits of the appellant’s claim.

The judgment should be affirmed, with costs.

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

Judgment affirmed.