text:
    The People of the State of New York ex rel. Harold J. Stepski, Respondent, against Howard Harford, as Sheriff of Orange County, et al., Appellants.

      Argued April 9, 1941;
    decided July 29, 1941.

      Henry Hirschberg, District Attorney, for appellants.
    Section 7-14.4 of the Plumbing Code of the City of New-burgh is constitutional and within the power of the Boards of Health and Plumbing to enact. (People ex rel. Nechamcus v. Warden, 144 N. Y. 529; Singer v. State, 72 Md. 465; People v. Rogers, 74 Col. 184; Douglas v. People, 225 Ill. 536; Louisville v. Coulter, 177 Ky. 242; Commonwealth v. Beaulieu, 213 Mass. 138; Matter of Smith, 231 Mo. 111; Beltz v. Pittsburgh, 211 Penn. St. 561; State v. Foss, 147 Minn. 281; State ex rel. Winkler v. Brenzenberg, 101 Wis. 172; Evans v. Denver, 79 Col. 533; Matter of Chapin v. Hogan, 208 App. Div. 56; City of Glens Falls v. Chapin, 208 App. Div. 238; Bronold v. Engler, 194 N. Y. 323; People ex rel. Lavier v. Hessler, 152 App. Div. 839.)

      William F. Stanton for respondent.
    Section 7-14.4 of the Plumbing Cods of the City of Newburgh is unconstitutional and not within the power of the Boards of Health and Plumbing to enact. (People ex rel. Nechamcus v. Warden, 144 N. Y. 529; Matter of Chapin v. Hogan, 208 App. Div. 56.)
   Conway, J.

The District Attorney of Orange county appeals as of right under subdivision 1 of section 588 of the Civil Practice Act from an order of the Appellate Division unanimously affirming an order of the Orange County Special Term sustaining a writ of habeas corpus and discharging the relator from the custody .of the sheriff.

The learned Special Term justice said: “ This writ of habeas corpus originally returned in the County Court has been transferred to the Supreme Court informally and a ruling requested as to the constitutionality of section 7-14.4 of the Plumbing Code of the City of Newburgh, which provides that only licensed'plumbers will be permitted to alter, repair or make connections to any part of the plumbing system. No other question has been considered or is decided.” (174 Misc. Rep. 1082, 1083.)

The relator was charged with violating a section of the Plumbing Code of Newburgh which had been adopted by the Board of Health and the Board of Plumbers and Plumbing of that municipality under the authority conferred by article 4 of the General City Law (Cons. Laws, ch. 21). The section reads as follows:

“ 7-14.4. Repairs. None but licensed master plumbers will be permitted to alter, repair or make connections to any part of the plumbing system. Each master plumber shall submit a monthly report of all work done.”

When the case of People ex rel. Nechamcus v. Warden (144 N. Y. 529) was before this court, we held that the act of the Legislature, which is now substantially embodied in General City Law, sections 40-a, 44, 45, creating boards for the examination of plumbers, empowering the boards to examine those seeking to engage in the trade, business or calling of plumbing as master or employing plumbers and making it unlawful for any person to engage in business as a master plumber without first obtaining a certificate of competency from such board, was constitutional. We said that that act was a proper exercise of the police power of the State, was not a deprivation of liberty or property without due process of law and was not a denial to the relator there, a master plumber, of the equal protection of the laws of the State. (U. S. Const. Fourteenth Amendment; State Const, art. 1, § 6.)

It was said in People v. Gillson (109 N. Y. 389, 401, 402), and approved in the Nechamcus case: “ * * * it is generally for the Legislature to determine what laws and regulations are needed to protect the public health and serve the public comfort and safety, and if its measures are calculated, intended, convenient or appropriate to accomplish such ends, the exercise of its discretion is not the subject of judicial review. But those measures must have some relation to these ends. Courts must be able to see, upon a perusal of the enactment, that there is some fair, just and reasonable connection between it and the ends above mentioned. Unless such relation exist the enactment cannot be upheld as an exercise of the police power.”

The constitutionality of the statute was upheld upon the ground that it was merely a restriction upon the right of master plumbers to employ men to work for them in their business thus assuring the public that the master plumber would exercise care in the selection of his employees and be competent to see and correct their faults and omissions. Under that act a master plumber and a journeyman plumber could each carry on his trade but only one with a certificate of competency could be a master plumber and employ others.

With the passage of time the Legislature apparently determined that a wider power of regulation of plumbing as a business was necessary for the protection of public health and safety. In 1929, by chapter 677 of the laws of that year, the Legislature amended the General City Law, section 53, so as to read as follows, the new portion being italicized:

§ 53. Plumbing and drainage to be executed according to rules. The plumbing and drainage of all buildings, both public and private, in each of the cities of this state, shall be performed by persons authorized under the rules and regulations adopted by the local board of examining plumbers, in conjunction with the board of health for plumbing and drainage, and all plumbing and drainage work shall be executed in compliance with such rules and regulations. And all repairs and alterations in the plumbing and drainage of all buildings heretofore constructed shall also be performed and executed in accordance with such rulés and regulations; but this section shall not be construed to repeal any existing provision of law requiring plans for the plumbing and drainage of new buildings to be filed with any local board of health and be previously approved in writing by such board of health and be executed in accordance therewith, except that in case of any conflict with such plans, rules and regulations of the board of examiners, the latter shall govern.”

Prior to the amendment the following words had been in the statute instead of those italicized supra: “ shall be executed in accordance with the rules and regulations adopted by the local board of examining plumbers, in conjunction with the board of health for plumbing and drainage.”

By the amendment the Legislature specifically provided that the plumbing andfdrainage of all buildings in each city of the State should not only be executed, as theretofore, in accordance with the rules and regulations adopted by the city board but authorized the local board of examining plumbers, in conjunction with the board of health for plumbing and drainage, to adopt rules and regulations specifying those who should perform the plumbing and drainage work. The Plumbing Code of the city of New-burgh, i. e., the rules and regulations, provide that the work which the relator is charged with doing may be done only by licensed master plumbers. The Code defines plumbing (§ 7-2.4) and the term master plumber (§ 7-2.1). This-latter section reads as follows: “ The term ‘ master plumber ’ as used in connection with this code shall be taken to mean a person who holds a master plumber’s certificate of competency obtained after having successfully passed an examination given by the examining Board of Plumbers of this City, and who engages in the business of plumbing on his own account or as a bona fide member of a firm or corporation under the provisions of Section 45-a of the General City Law, and is registered with the Board of Health and has an established place in the City of Newburgh from where he conducts and operates his business, and has his name and metal sign conspicuously displayed at said place of business "that is easily read by the public.”

The following sections are also material to our inquiry:

7-1.1. Qualification, Registration, Examinations and Fees. It shall be unlawful for any person to engage in the business of plumbing or to install, alter or repair any plumbing system in the City of Newburgh, New York, or to display a sign or to give other notice setting forth or intending to imply that he is engaged in the business of plumbing, unless he has obtained a certificate of competency, after examination, and has duly registered said' certificate and received a certificate of registry and a metal sign from the health officer as provided in Section 45-b of the General City Law. Every person who desires to engage in the business of plumbing shall make written application under oath upon a form to be prescribed and supplied by the examining Board of Plumbers and pay a fee of Five Dollars ($5.00) for an examination by said Board.
“ 7-1.2. Application for examination. Each applicant shall be vouched for by two persons, one of whom, at the time of signing the application as voucher, must be lawfully engaged as a Master Plumber in the City of Newburgh, New York, and who shall appear before the Board and sign under oath on a form prescribed by the Board a certificate certifying to the time the applicant has been employed by the voucher as a journeyman plumber.
“ The Board shall refuse to receive an application from any person who, at the time of making application, is unlawfully engaged in business as a master or employing plumber.
“No person shall be examined unless he shall have had an experience of at least five years as a journeyman plumber, and is able to furnish satisfactory evidence of such fact, and no application shall be received from any person who is not a citizen of the United States.
“ 7-1.3. Examination. The Examinations of the Board shall be in two parts, viz; (1) Practical tests to determine the applicant’s skill as a journeyman plumber; and (2) a written examination. The written examination shall consist of questions designed to determine the applicant’s fitness and qualifications to engage in the business of master or employing plumber * * *
“ Persons who pass the tests and the written examinations as prescribed by the Board shall be eligible to receive a certificate of competency as master or employing plumber.
“ 7-1.4. Pre-requisite to Issuance of Certificate. Before issuing a certificate to engage in the business of master or employing plumber, the Board shall inquire into the applicant’s fitness and qualifications for conducting such business, and may require the applicant to submit under oath such evidence, in addition to the examinations and tests herein-before provided, as will satisfy the Board that he is a person of good repute, character and responsibility, and otherwise qualified to engage in business as master or employing plumber.”

Thus, it is “ unlawful for any person to engage in the business of plumbing or to install, alter or repair any plumbing system in the City of Newburgh ” unless he shall have first obtained, after examination, a certificate of competency which, in turn, shall be given only to one who shall have had an experience of at least five years as a journeyman plumber, who is a citizen of the United States and a person of good repute, character and responsibility. The question which is presented to us is whether the adoption of section 7-14.4 of the Newburgh Code is within the field of State police power. We think it clearly is. (People ex rel. Nechamcus v. Warden, 144 N. Y. 529, 537, 538.)

Plumbers are divided into two grades, master or employing plumbers and journeyman plumbers. In addition there are plumbers’ helpers. General City Law, section 44, subdivision 2, use's the words “ master plumber ” and employing plumber ” interchangeably. There is no requirement that the master plumber employ any one. The master plumber may be an individual or a corporation. (General City Law, § 45-a.) As an individual, he may carry on the business alone or may employ journeyman plumbers. A journeyman plumber may continue to work for the master plumber as he has in the past. The point is, however, that no altering, repairing or making of connections to any part of the plumbing system in the city of Newburgh may be made by a journeyman plumber or helper on his own sole responsibility but only by a licensed master plumber or those employed by him.

We do not think that unreasonable in view of the fact that the Legislature may have found that the importance of plumbing and drainage is greater now than formerly by reason of the growing population in our cities and the increasing complexity of our civilization. The relator here was charged with violation of the Code section because he disconnected a coal range from the plumbing system in a building in Newburgh and thereafter installed and connected a pot stove therewith. Not only coal stoves, but gas stoves and some refrigerators and air conditioning units are connected with municipal plumbing systems. These modem conveniences, if the plumbing work in connection with them be done improperly, may well be a potential source of danger to the health and safety of many more persons than the number in the premises involved and such plumbing work is properly subject to regulation under the power delegated in the General City Law. It is not unreasonable for municipal authorities to insist that the responsibility for altering, repairing or making connections to any part of the plumbing system in their cities shall be upon men of good repute, character and responsibility who have a place of business in the affected city, who have passed an examination as to their competency in their trade and who may be personally found promptly and held to that responsibility, by the municipality or its residents, for acts of commission or omission by themselves or those whom they have employed. We know of no trade, business or calling in the community which more vitally affects the public health and safety of city dwellers than that of plumbing.

General City Law, article 4, does not apply to New York city (General City Law, § 57) but provisions similar to those in the Newburgh Code will be found in the Administrative Code of the City of New York (L. 1937, ch. 929) in sections 816-3.0; C26-210.0; 561-1.0; 2.0.

The orders should be reversed and the relator remanded to custody.

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

Orders reversed, etc.


source: Caselaw Access Project

author: Lehman, Ch. J. Conway, J.

license: Public Domain

text:
    In the Matter of Linwood J. Putnam et al., Respondents, against James Marshall et al., Constituting the Board of Education of the City of New York, Appellants.

      Argued June 5, 1941;
    decided July 29, 1941.

      William C. Chanter, Corporation Counsel (Edward J. McQratty, Jr., and Nicholas Bucci of counsel), for appellants.
    The amendment to section 889 of the Education Law (Cons. Laws, ch. 16) did not require that the formulae employed by the Board of Education in computing custodial compensation for a particular group of buildings in 1927 be forever after used to fix the custodial compensation in new types of buildings equipped with fuel oil-burning heating systems unknown in 1927. (L. 1931, ch. 540.) The amendment to section 889 of the Education Law does not require the Board to increase the annual compensation fixed in respect of a Class A or Class B school whenever part of the school grounds is paved. (L. 1931, ch. 540.)

      William F. Cassin for respondents.
    The power to reduce custodial compensation below the December 29, 1927, schedules rests solely with the Legislature. (Matter of Brennan v. Board of Education, 245 N. Y. 8; Matter of Henry Hudson Parkway Authority v. Kern, 167 Misc. Rep. 699; 255 App. Div. 770; Matter of Moses v. Board of Education, 127 Misc. Rep. 477; 218 App. Div. 811; 245 N. Y. 106; Matter of College of City of New York v. Hylan, 205 App. Div. 372; Louderback v. Board of Education, 216 App. Div. 805; 244 N. Y. 511; Brown v. State of New York, 242 App. Div. 85; 266 N. Y. 598; Matter of Talbot, 171 Misc. Rep. 974.)
   Lehman, Ch. J.

The petitioners are custodian-engineers ” of schools in the city of New York and are in the competitive class of the civil service. Compensation to custodian-engineers of schools in New York city is, with few exceptions, fixed or measured upon what is known as the indirect system. The salary of a custodian-engineer is intended to include not only compensation for the services rendered by him but also the compensation or wages of helpers who are not taken from competitive civil service lists but who are selected and employed by him, subject to the approval of the Board of Education. The petitioner Putnam was appointed as custodian of Public School 108 in the Bronx on August 16,1938. The school had been completed shortly before his appointment and is equipped with an oil-burning heating plant. The petitioner Fairbanks was appointed custodian of Public School 143 in the borough of Queens, in March, 1938. That school was completed in 1929 and is not equipped with an oil-burning heating plant. They have been paid the salaries fixed in 1940 by resolution of the Board of Education for their positions. They contend that the salaries so fixed violate mandatory provisions of section 889 of the Education Law (Cons. Laws, ch. 16), and they have brought proceedings under article 78 of the Civil Practice Act to compel the Board of Education to comply with the statutory provisions. In the courts below their contentions have been upheld.

Section 883 of the Education Law, entitled Salaries in cities of the first class having a population of one million or over,” provides that the Board of Education shall adopt and file schedules and schedule conditions, which schedules and schedule conditions shall fix the compensation or salaries of * * * members of the teaching and supervising staffs * * * and of other employees of the board of education.” Such schedules and schedule conditions ” must, in accordance with the statute, fix the salaries of the custodial staff as well as the salaries of the other employees of the Board of Education. In 1927 the Board of Education adopted new schedules, which in general, increased the salaries of teachers and other employees of the Board of Education. The resolution adopted by the Board on December 29, 1927, provides, amongst other things, Resolved, That the compensations of members of the custodial staff be, and they are hereby, fixed in accordance with the conditions outlined in the following report and accompanying tabulation to take effect January 1, 1928.” The resolution then sets forth certain Principles Involved in the Readjustments of Janitorial Compensation:

“1. Buildings to be classified in two groups as follows:
“ Class A. High pressure plant with plenum system, and vacuum plants with motor driven blowers.
Class B. Gravity return plants with motor driven blowers for plenum system; also buildings where low pressure boilers, hot air furnaces or stoves are used. * * *
“It is proposed to simplify the method of calculating custodial compensation, first, by classifying buildings in accordance with the work required to operate the heating units; and second, by calculating the whole allowance for cleaning and heating by multiplying the size of the building expressed in quarter thousand square feet by the appropriate new rate, which, as in the present schedule, starts at the highest rate for the small buildings and descends by quarter thousand square feet to the lowest rate which applies to the large buildings.
“ Similarly, new basic rates have been evolved for calculating the allowance for the cleaning of the paved surface.”

Basic rates are then set forth by which the salary to be paid to the custodian of each school classified in Class A and of each school classified in Class B can be computed in accordance with a formula contained in the resolution. The amount of surface of paved floors in each building or playground is the determinative factor in calculating the allowance, included in the salary of a custodian, for the cleaning of the premises. Other factors formulated in the resolution must be used in computing the allowance for the care of the heating equipment. The resolution, after stating “ the principles involved in the readjustments of janitorial compensation ” and the rates and formula used by the Board for computing such readjustments, sets forth the exact salary as so computed for the custodian of each school classified in Class A and of each school in Class B.

Section 889 of the Education Law, as amended by chapter 530 of the Laws of 1930 and chapter 540 of the Laws of 1931, provides that “ The schedules and schedule conditions fixing the salaries of members of the teaching and supervising staffs, the administrative staff and of all other employees of the board of education of a city having a population of one million or over, * * * shall be not less than the salaries and salary increments fixed by the schedules and schedule conditions adopted by such board of education * * * and on file in the office of the state commissioner of education on the fifth day of March, nineteen hundred thirty-one, * * *.” The salaries paid to the petitioners in accordance with resolutions of the Board of Education adopted in 1940 are lower than their salaries would be if computed in exact compliance with the “ principles ” and formula contained in the resolution of 1927 for computing janitorial compensation on file in 1931. That, it is said, constitutes a violation of the provisions of section 889.

As we have pointed out, the public school of which the petitioner Putnam is custodian was not completed until 1938. For that reason it was not classified and no salary for its custodian was fixed by any schedule or schedule conditions on file in 1931. At that time, too, no schools had been equipped with oil-burning heating plants and the Board of Education maintains, though this is disputed, that oil-burning furnaces require less care than the furnaces in use in the older buildings, and that buildings equipped with such oil-burning plants should be put in a different classification from buildings with the older form of plant. The courts below have held that it is immaterial whether or not these differences exist. The Board of Education has been commanded to fix the compensation of custodians of all schools, new or old, at an amount not less than the compensation would be if computed in accordance with the “ principles,” basic rates and formula contained in the resolution of 1927.

The provisions of section 889 are clear, unambiguous and mandatory. Little room, if any, is left for construction or for discretion in their application. The Legislature, which has conferred upon the Board of Education power to determine the salary and compensation of all employees, has placed a rigid restriction upon its exercise. The salaries of positions as fixed in 1931 may not be reduced. Under changed conditions the salary attached to a particular position in 1931 may seem excessive in 1941. The Legislature has power to reduce a salary which seems to it excessive. It has withheld such power from the Board of Education. Thus the problem which is presented upon this appeal is narrow. The problem is whether the resolutions on file in 1931, which formulated general principles and basic rates for calculating the salaries of custodians of schools in the city of New York, and which in addition specified the salary, so calculated, of the custodian of each school then in existence, fixed the salaries of all custodians, even of custodians of schools thereafter established or altered, at the amount which such custodians would receive if their schools were classified in one of the classes existing in 1931, and if their salaries were calculated in accordance with the principles and basic rates contained in the resolution; or whether it fixed the salary only of custodians of schools therein specified and at the amount therein stated. The question concerns rather the construction of the resolutions on file in 1931 than the construction of the clear and unambiguous language of the statute.

In its resolutions on file in 1931, the Board of Education determined that by rigid application of the principles, then formulated, fair compensation could be computed in all cases and it chose to determine all salaries by such computation rather than by attempting to fix salaries on other principles,” or in accordance with discretion entirely unfettered. So long as the city chose to pay custodians upon the so-called indirect system, and custodians of new buildings performed substantially the same services under substantially similar conditions, the Board of Education might, if it saw fit, continue to compute the salaries to be paid to custodians of such new buildings in similar manner. The salary schedules as filed in 1931 did not, however, purport, even assuming that were possible, to fix the salaries to be paid in the future to custodians of new buildings to be erected thereafter. The position of custodian in each new building is in effect a new position and the salary of such a new position is not fixed by any schedule previously filed. The Board of Education has power, therefore, to place new buildings with oil-heating equipment in a new class and to fix. the compensation of custodians in such buildings without regard to the “ principles ” applied in the computation of salaries included in the schedules on file in 1931 and applicable to positions then established.

What we have said so far applies only to the salary of the petitioner Putnam as custodian of the new school in the Bronx. The petitioner Fairbanks is custodian, as we have said, of a school which was completed before 1931 and the salary of custodian of that school was fixed by the schedules and schedule conditions on file in 1931, at $4,440, in accordance with the “principles,” basic rates, and formula set forth in the resolution of 1927. The present holder of that position, Fairbanks, is now receiving compensation in the same amount, but in the interim there has been increase in the paved surface of the playground and the Board of Education has decided that no increased compensation should be paid to a custodian merely because surface previously unpaved is now paved, though if his salary were fixed in accordance with the “ principles ” and formula originally used for computing the salary for that position, the custodian would be entitled to receive an increase of compensation. The Board of Education contends that increase of paved surface in a playground does not increase the labor or expenses required of the custodian for its proper maintenance. Such considerations may affect the sufficiency of the salary as fixed by the Board of Education. They do not affect the powers of the Board and this court is concerned only with the powers of the Board, not with the wisdom of the exercise of those powers. The question we must decide on this branch of the case is whether the “ principles ” provided in the resolution of 1927 for computation of salaries or compensation constitute part of the schedules of salaries and schedule conditions fixing such salaries. In our opinion those “ principles ” cannot be given such effect.

We reiterate that the principles, rates and formula constitute part of the method of computing the salaries thereafter set forth in the schedule of salaries. They are not part of the “ schedules ” nor are they, in our opinion, “ schedule conditions,” fixing salaries. In those parts of the same resolution in which the Board of Education adopted new schedules of salaries for teachers and members of the supervising staff, there are appended to some of the schedules “ schedule conditions,” so denominated in the resolution. These “ schedule conditions ” are in true sense conditions with which the holder of a position must comply in order to receive the salary, e. g., they provide that “ teachers who meet the standards to be set shall receive this salary.” The provisions upon which the petitioners rely are in no sense conditions.”

The question whether the Board of Education has power to change compensation for established positions from the direct system to an indirect system is not presented here and we do not consider it. We decide only that where new schools have been built the Board of Education is not compelled to fix the salary of the custodians of such new schools at an amount not less than the salary would have been if the school had been erected before 1931 and the salary of the custodian had been computed in accordance with the principles ” applied in fixing the salaries of custodians of existing schools; and that the Board of Education may fix the salary of a custodian of a school in existence before 1931 on different principles from those used by the Board in computing the salary of custodians in the schedule of salaries on file in that year, provided only that by the new formula the compensation is not computed and fixed at an amount lower than the actual salary stated in salary schedules on file in 1931.

The orders should be reversed and the proceedings dismissed, with costs in all courts.

Conway, J.

(dissenting). The Board of Education of the City of New York having adopted and filed its schedules and schedule conditions for custodial compensation, as directed by the Education Law, must abide by them in view of section 889 of the Education Law which provides that the compensation of custodians may not be reduced below the 1927 schedules and the schedule conditions on file on March 5, 1931. The compensation provided applied not only to schools and school buildings then in existence but also to those to be built thereafter. There is no distinction made in the schedules as to any particular type of heating plant or as to kind of fuel burned therein. The attempted adoption of the so-called “ Amendment to Salary Schedules of Custodial Staff ” and of the resolution adopted by the Board of Education on June 26, 1940, violates the purposes of, and the results achieved to date through, the Lockwood-Donahue law, the Dick-Rice law, chapter 530 of Laws of 1930 and chapter 540 of Laws of 1931. Moreover, an attempt was made at the legislative session of 1940 to amend the Education Law by granting to the Board of Education the power to fix salaries of certain of its employees, including its custodian engineers, but the Legislature refused such amendment. The changes sought must come about through legislative action and not through the appellant Board. The order should be affirmed.

Loughran, Finch, Rippey, Lewis and Desmond, JJ., concur with Lehman, Ch. J.; Conway, J., dissents in memorandum.

Orders reversed, etc.


author: Conway, J.

text:
    In the Matter of Boardwalk & Seashore Corporation, Respondent, against Harris H. Murdock et al., Constituting the Board of Standards and Appeals of the City of New York, Appellants.

      Argued May 22, 1941;
    decided July 29, 1941.

      William G. Chanter, Corporation Counsel (Paxton Blair, James Hall Prothero and James Hurley of counsel), for appellants.
    The saving clause in subdivision a of section 6 of the Building Zone Resolution, adopted in 1916, applies to uses regulated by it, and not to uses regulated from time to time by later amendments. (Matter of McIntosh v. Johnson, 211 N. Y. 265; Cohen v. Rosedale Realty Co., 120 Misc. Rep. 416; Southern Leasing Co. v. Ludwig, 168 App. Div. 233; 217 N. Y. 100; Marcus v. Village of Mamaroneck, 283 N. Y. 325; People v. Santer, 96 Misc. Rep. 109; Town of Lexington v. Bean, 272 Mass. 547; Town of Darien v. Webb, 115 Conn. 581.)

      William Gold and George Goldberg for respondent.
    The Building Zone Resolution Amendment of June 28, 1935, was expressly intended to exempt existing uses, and in any event, as a matter of law, is required to be construed prospectively so as not to affect the continuance of prior established uses. (Autocar Sales & Service Co. v. Hansen, 270 N. Y. 414; Matter of Miller, 110 N. Y. 216; Matter of Kingsbury, 192 App. Div. 206; Dodin v. Dodin, 16 App. Div. 42; 162 N. Y. 635; 78th Street & Broadway Co. v. Rosenbaum, 111 Misc. Rep. 577; Union Pacific R. R. Co. v. Laramie Stockyards Co., 231 U. S. 190.)
   Conway, J.

Petitioner’s premises are located at Rock-away Beach in the county of Queens and have been continuously used as a parking space for the outdoor parldng of more than five cars since some time prior to February, 1925.” Upon the adoption of the Building Zone Resolution of the City of New York in 1916 the premises were placed in a business use district and while in that district the establishment and maintenance of a commercial parking space was lawful. (Matter of Monument Garage Corp. v. Levy, 266 N. Y. 339.)

On June 28, 1935, paragraph 15 of subdivision a of section 4 of the Building Zone Resolution was amended so that it prohibited the use of premises for commercial outdoor parking of more than five motor vehicles in a business district. That amendment made the maintenance of the use to which petitioner was putting his premises unlawful, even though that use had been established prior to the adoption of the amendment. (People v. Wolfe, 272 N. Y. 608; People v. Kesbec, Inc., 281 N. Y. 785.)

Still later, on July 31, 1938, the use district of petitioner’s premises was changed from a business to a residence district. There, of course, commercial parking use was forbidden even prior to the 1935 amendment. (Matter of Monument Garage Corp. v. Levy, supra.)

Petitioner in this proceeding sought to obtain a certificate of occupancy, following the service upon him of a notice that he was violating article 2, section 3, of the Building Zone Resolution by operating a parking space for more than five cars in a residence use district without such a certificate. In September, 1940, the learned Special Term justice granted the relief sought and in February, 1941, the Appellate Division unanimously affirmed the order granting such relief:

On December 18, 1940, section 6 of the Building Zone Resolution was amended. There was added to the first sentence in subdivision (a) the words which are italicized •below and there was added a new subdivision, denominated (b). The section reads in part as follows:

“ § 6. Existing Buildings and Premises, (a) Any use existing in any building or premises on July 25, 1916, and not conforming to the regulations of the use district in which it is maintained, may be continued therein except as provided in % 21-A. * * * (b) Any use existing in any building or premises lawfully established subsequent to July 25, 1916, and not conforming to the regulations of the use district in which it is maintained, may be continued therein except as provided in § 21-A.” (Italics supplied.)

Under the amendment to section 6, except for the absence of a certificate of occupancy, the continuance by petitioner of the use of the premises for commercial parking, of more than five cars, was lawful under subdivision (a) if the use had been established prior to July 25, 1916, and thereafter maintained, and under subdivision (b) if lawfully established subsequent to July 25, 1916, and thereafter maintained. In either case the use could be continued, except as provided in section 21-A.

Section 21-A, at the time of the amendment to section 6 on December 18, 1940, provided that “ no premises may be used * * * as a garage for more than five motor vehicles or for the storage or parking of more than five motor vehicles * * * on * * * any portion of a street between two intersecting streets, on which portion there exists an exit from or an entrance to a public school; * * * and in no case within two hundred feet thereof measured along the accustomed line of travel.” The prohibition against the use of premises “ for the storage or parking of more than five motor vehicles ” was deleted by an amendment to the section adopted January 9, 1941.

The amendments of December 18, 1940, and January 9, 1941, were both adopted subsequent to the entry of the order at Special Term and were not called to the attention of the Appellate Division. In fact ■ the first time those amendments were called to the attention of any court in this proceeding, was subsequent to the oral argument here. ■ Nevertheless, this court must consider and give effect to them. They necessitate an affirmance, instead of a reversal, of the order below and render inapplicable, to the facts here presented, our decisions in People v. Wolfe and People v. Kesbec, Inc. (supra), which would otherwise be controlling. (Rafferty v. Smith, Bell & Co., 257 U. S. 226.) Parties obtain no vested rights in the orders or judgments of courts while they are subject to review. (American Foundries v. Tri-City Central Trades Council, 257 U. S. 184, 201; United States v. Heinszen & Co., 206 U. S. 370; Graham & Foster v. Goodcell, 282 U. S. 409, 429; Carpenter v. Wabash Ry. Co., [1939] 309 U. S. 23, 27. See, also, United States v. Schooner Peggy, 1 Cranch [U. S.], 103; People ex rel. Kilmer v. McDonald, 69 N. Y. 362, 367; Town of Duanesburgh v. Jenkins, 57 N. Y. 177.) In United States v. Schooner Peggy (1 Cranch [1 U. S. (Condensed Rep.) 256, 258], 103, 110) Chief Justice Marshall said: “ It is in the general true that the province of an appellate court is only to inquire whether a judgment when rendered was erroneous or not. But if subsequent to the judgment and before the decision of the appellate court, a law intervenes and positively changes the rule which governs, the law must be obeyed, or its obligation denied. * * * In such a case the court must decide according to existing laws, and if it be necessary to set aside a judgment, rightful when rendered, but which cannot be affirmed but in violation of law, the judgment must be set aside.” So by a parity of reasoning, an order must be affirmed.

The use of the premises for commercial parking of more than five motor vehicles conformed to the provisions of the Building Zone Resolution at the time the use was established and conforms now under the 1940 amendment to section 6 thereof and the 1941 amendment to section 21-A. Petitioner is entitled to the certificate of occupancy sought and granted below. (Building Zone Resolution of the City of New York, § 22. Cf. Matter of Monument Garage Corp. v. Levy, supra.)

The order should be affirmed, with costs.

Lehman, Ch. J., Loughran, Finch, Rippey, Lewis and Desmond, JJ., concur.

Order affirmed.


author: Per Curiam.

text:
    In the Matter of Louis J. Lefkowitz et al., Appellants, against S. Howard Cohen et al., Constituting the Board of Elections of the City of New York. John R. Davies, Respondent. In the Matter of John R. Davies, Respondent, against S. Howard Cohen et al., Constituting the Board of Elections of the City of New York. Louis J. Lefkowitz et al., Appellants.

      Argued September 11, 1941;
    decided September 11, 1941.

      Louis J. Lefkowitz, Thomas S. Thacher, Daniel J. Riesner and Alfred Bohlinger for appellants.
    Special Term properly refused to validate the remaining 1,481 signatures on the 900 fraud saturated sheets containing 3,932 forged signatures and bearing 900 false authenticating affidavits. (Matter of Weisberger v. Cohen, 22 N. Y. Supp. [2d] 1011; 260 App. Div. 392; Matter of Crosbie v. Cohen, 281 N. Y. 329; Matter of Phillips [Hubbard], 284 N. Y. 152; Matter of Flam, 268 N. Y. 619.)

      John F. X. Finn and Ira N. Hurwitz for John R. Davies, respondent.
    The Appellate Division’s decision that the trial court erred in holding that if there is any forgery on a sheet of a designating petition, said entire sheet must be disregarded, is correct. (Matter of Burke v. Terry, 146 App. Div. 520; 203 N. Y. 293.)

      William C. Chanler, Corporation Counsel (Robert H. Schaffer of counsel), for Board of Elections of the City of New York.
   Per Curiam.

The court agrees unanimously with the conclusions of the Appellate Division in regard to the first two specific grounds ” stated by it in the opinion. Lehman, Ch. J., and Finch, J., vote to reverse on the ground that it is undisputed that some of the canvassers swore falsely to the signatures of a large proportion of those named upon the sheets witnessed by them and that, therefore, in the absence of some explanation by such canvassers there is no basis for any finding that the other signatures upon the sheets are genuine.

A majority of the court are of opinion that this ground is not open to the appellants upon this record, because it is inconsistent with the theory of the trial and with the corresponding disposition made of the issues both by the Special Term and by the Appellate Division, which was that 6,182 signatures were genuine.

The orders should be affirmed, without costs.

Loughran, Rippey, Lewis, Conway and Desmond, JJ., concur; Lehman, Ch. J., and Finch, J., dissent.

Orders affirmed, etc.


text:
    In the Matter of Armand Schmoll, Inc., Appellant, against Federal Reserve Bank of New York, Respondent.
    Argued June 6, 1941;
    decided October 16, 1941.

      Hersey Egginton, George D. Mumford and Charles D. Peet for appellant.
    The court at Special Term erred in holding that the Supreme Court of this State was without jurisdiction to order the respondent to comply with section 522, paragraph c, of the Tariff Act of 1930 (46 Stat. 739). (Claflin v. Houseman, 93 U. S. 130; Second Employers’ Liability Cases, 223 U. S. 1; Galveston, H. & S. A. Ry. Co. v. Wallace, 223 U. S. 481; Minneapolis & St. Louis R. R. Co. v. Bombolis, 241 U. S. 211; People v. Welch, 141 N. Y. 266; St. Louis, B. & M. Ry. v. Taylor, 266 U. S. 200; Teall v. Felton, 1 N. Y. 537; First Nat. Bank v. Union Trust Co., 244 U. S. 416; Northern Pacific Ry. Co. v. North Dakota, 250 U. S. 135; Matter of Hurley v. National Bank of Middletown, 252 App. Div. 272; Matter of Tuttle v. Iron Nat. Bank, 170 N. Y. 9; Guthrie v. Harkness, 199 U. S. 148.) State courts have jurisdiction to require federal agents to comply with the federal law. (Warner Valley Stock Co. v. Smith, 165 U. S. 28; Marbury v. Madison, 1 Cranch, 137; Wilbur v. Krushnic, 280 U. S. 306; Teall v. Felton, 1 N. Y. 537; People v. Welch, 141 N. Y. 266; Claflin v. Houseman, 93 U. S. 130; First Nat. Bank v.
      Missouri, 263 U. S. 640; First Nat. Bank v. Union Trust Co., 244 U. S. 416; Guthrie v. Harkness, 199 U. S. 148; Matter of Tuttle v. Iron Nat. Bank, 170 N. Y. 9; Federal Land Bank v. Priddy, 295 U. S. 229; Kendall v. United States, 12 Pet. 524; Waite v. Macy, 246 U. S. 606; Merritt v. Welsh, 104 U. S. 694; Garfield v. Goldsby, 211 U. S. 249; Riggs v. Johnson County, 6 Wall. 166.)

      Allen T. Klots, Walter S. Logan, Rufus J. Trimble, G. Schuyler Tarbell, Jr., and John H. Wurts for respondent.
    The courts of the State of New York do not have jurisdiction of the subject of this proceeding. A state court has no jurisdiction to issue mandamus to direct performance of a federal function by a federal agency. (McClung v. Silliman, 6 Wheat. 598; Matter of Tarble, 13 Wall. 397; Matter of Shockley, 17 Fed. Rep. [2d] 133; State ex rel. Wilcox v. Curtis, 35 Conn. 374; Hinkle v. Town of Franklin, 118 W. Ya. 586; Goldstein v. Somervell, 170 Mise. Rep. 602; Kendall v. United States, 12 Pet. 524; Territory v. Lockwood, 3 Wall. 236; Matter of Blake, 175 U. S. 114; United States v. Owlett, 15 Fed. Supp. 736; Johnson v. Maryland, 254 U. S. 51; Ohio v. Thomas, 173 U. S, 276.)

      Mathias F. Correa, United States Attorney (George B. Schoonmaker of counsel), for United States of America, amicus curise.

    The action of the Federal Reserve Bank of New York under section 522 of the 1930 Tariff Act in determining and certifying the buying rate of foreign currency is not subject to control by a state court because such action is in performance of a governmental function of the United States. (McClung v. Silliman, 6 Wheat. 598; Territory v. Lockwood, 3 Wall. 236; Matter of Blake, 175 U. S. 114; Matter of Tarble, 13 Wall. 397; Matter of Shockley, 17 Fed. Rep. [2d] 133; Hinkle v. Town of Franklin, 118 W. Ya. 586; People v. Kidd, 23 Mich. 440; United States v. Owlett, 15 Fed. Supp. 736; United States v. Query, 21 Fed. Supp. 784; Johnson v. Maryland, 254 U. S. 51; Keely v. Sanders, 99 U. S. 441.)
   Lehman, Ch. J.

Under the United States Tariff Act of 1930, chapter 497 (46 Stat. 739; U. S. Code, tit. 31, § 372), the Federal Reserve Bank of New York is authorized and required, under specified conditions, to determine and certify daily to the Secretary of the Treasury “ the buying rate for cable transfers.” The statute directs that such determination shall be made in manner defined in the statute. Claiming that the Federal Reserve Bank has failed to determine the buying rate in manner directed by the federal statute, the appellant has brought proceedings under article 78 of the Civil Practice Act to compel the Federal Reserve Bank to make its determination in manner provided by law. The proceedings have been dismissed on the ground that the state courts have no jurisdiction to issue orders or directions to the Federal Reserve Bank in the performance of its statutory duty.

The Federal Reserve Bank is a federal agency exercising powers conferred by federal statute and performing duties imposed upon it by federal statute in a field which, under the Constitution of the United States, is within the sole and exclusive jurisdiction of the federal government. In the case of McClung v. Silliman (6 Wheat. [U. S.] 598) the Supreme Court of the United States declared in unambiguous and emphatic language that the state court is without power to give such directions to a federal officer acting under a federal statute within a field from which the state government is excluded. No case has been cited to us where a state court has since that time assumed to give such directions. Nor has the Supreme Court of the United States in any opinion or decision cast doubt upon the scope of its decision in that case.

We are now told, however, that, though language is found in Justice Johnson’s opinion in that case which seemingly supports the rule that the state courts have no jurisdiction or power to give directions to a federal agent or to control the agent’s acts in the performance of a specific function entrusted to the agent by a federal statute, at least within a field from which the state is excluded by the constitution of the United States,” yet that the mandate of the Supreme Court of the United States, in the cited case, contrary to what is said in the opinion, affirms on the merits ” a decision of the state court holding that the state court has such power.

Examination of the mandate of the court shows clearly that it is dictated by what was said in the opinion and constitutes emphatic warning to the courts, state and federal, to remain within the field of jurisdiction allotted to each. In that case, a party aggrieved by a determination of a federal agent acting under a federal statute, applied to the state court for an order directing the federal officer to perform his duties in manner provided by the federal statute. The state court overruled a challenge to its jurisdiction by the United States government, but after consideration of the merits of the claim dismissed the application made to it for relief. The applicant for relief, disappointed by that decision against him, brought the case to the United States Supreme Court for review. The government of the United States did not, of course, challenge the order of the Supreme Court of Ohio, which had determined the case in favor of the government. The Supreme Court of the United States affirmed that determination in favor of the government on the ground that the state court had no power to grant the application. In its opinion the court pointed out that “ The question before an appellate court is, was the judgment correct, not the ground on which the judgment professes to proceed ” (p. 199), and the mandate or judgment of the Supreme Court of the United States, like the opinion, supplies the ground for the adjudication, for after affirming the judgment of the Supreme Court of Ohio, the mandate of the Supreme Court of the United States continues, “ it being the opinion of this court that the said Supreme Court of the State of Ohio had no authority to issue a mandamus in this case.” (Italics are new.)

The opinion of the court in the case of Kendall v. United States (12 Pet. [U. S.] 524), to which Judge Conway refers in his dissenting opinion, far from suggesting that the case of McClung v. Silliman (supra) was decided on any other ground, again states the ground of the decision and recognizes its authority: The only question directly before the court, was, whether a state court had authority to issue a mandamus to an officer of the United States, and this power was denied ” (p. 617). What the court said on page 619 in reference to the decision of the court in Columbian Ins. Co. v. Wheelwright (7 Wheat. [U. S.] 534) can have no possible application to the McClung case.

The right of a state court, in many cases, to vindicate and protect rights granted by a federal statute or to give redress for wrongs committed by a federal officer under color of authority granted by federal statute, cannot be doubted. It has been firmly established in the cases cited by Judge Conway, and especially in Claflin v. Houseman (93 U. S. 130.) It is to be noted, however, that in that case the court was careful to point out that there are fields from which the state courts are excluded. The question here presented is narrow. In the opinion of Mr. Justice B-osenman at Special Term, he said: The question involved here is not whether rights created by a federal statute may be the subject of controversy in a state court. It is whether the manner of performance of a specific federal government statutory function by a federal statutory agency can be the subject of a decree of a state court. This case does not involve any encroachment upon the state’s authority by a federal agency; or any power given by the Congress to a state court to interpret a state law; or a suit against individual federal officers who are allegedly infringing upon the rights of an individual in violation of their duties. Consequently the cases relied upon by the petitioner are not in point. Not one of them is, in the opinion of this court, authority for the proposition that a state court has the jurisdiction here urged.”

The cases cited in Judge Conway’s opinion sustain the power of a state court acting within the field of its allotted jurisdiction, to enforce rights created by federal statute and to remedy wrongs committed by federal officers under color of authority granted by federal statutes. No case has been cited which holds that a state court may go outside that field and control the manner in which a federal agency performs or attempts to perform its functions and duties under the Tariff Act or other federal statute where the Federal government has exclusive jurisdiction. Assumption of such power would hamper orderly government and ignore the division of the fields of government of state and nation created by the Constitution. No case has been cited which might justify the invocation of the powers of a state court in this proceeding.

The order should be affirmed, with costs.

Conway, J.

(dissenting). This is a proceeding under section 1289 of the Civil Practice Act brought by petitioner to obtain an order directing the Federal Reserve Bank to perform a mandatory, ministerial duty enjoined upon it by section 522 (c) of the Tariff Act of 1930 (U. S. Code, tit. 31, § 372). No answer was filed but respondent moved under section 1293 of the Civil Practice Act for an order dismissing the petition on objections in point of law. Special Term granted the motion as a matter of law only, viz., upon the ground that the Supreme Court had no jurisdiction of the subject of the proceeding, specifically excluding any exercise of discretion. The appeal to this court is from an order of the Appellate Division unanimously affirming the order of Special Term.

In January and February, 1936, the petitioner imported three lots of cattle hides from Brazil. Those hides were subject to an ad valorem duty of ten per cent and they were appraised in Brazilian milreis as of the date of exportation from Brazil. Under the Tariff Act it was the duty of the Collector of Customs of the Port of New York, prior to liquidating the duties on the hides, to convert their appraised values into United States currency and in so doing to use the rates of exchange determined in accordance with section 522 of the Tariff Act of 1930.

Subdivision (c) of section 522 is the material portion of the section here. It reads as follows:

(c) Market Rate When No Proclamation.-— If no such value has been proclaimed, or if the value so proclaimed varies by 5 per centum or more from a value measured by the buying rate in the New York market at noon on the day of exportation, conversion shall be made at a value measured by such buying rate. If the date of exportation falls upon a Sunday or holiday, then the buying rate at noon on the last preceding business day shall be used. For the purposes of this subdivision such buying rate shall be the buying rate for cable transfers payable in the foreign currency so to be converted; and shall be determined by the Federal Reserve Bank of New York and certified daily to the Secretary of the Treasury, who shall make it public at such times and to such extent as he deems necessary. In ascertaining such buying rate such Federal reserve bank may in its discretion (1) take into consideration the last ascertainable transactions and quotations, whether direct or through exchange of other currencies, and (2) if there is no market buying rate for such cable transfers, calculate such rate from actual transactions and quotations in demand or time bills of exchange.”

Congress specifically provided that the value ” of the foreign currency for customs purposes shall be the buying rate for cable transfers payable in the foreign currency * * * and shall be determined by the Federal Reserve Bank of New York * * *.” “ Value ” and “ buying rate ” were not used synonymously. The latter was the measuring rod for the former and Congress precluded the consideration of other factors. All functions involving judgment and discretion were eliminated by restricting the inquiry to the New York market buying rate for cable transfers. A positive and peremptory rule of valuation ” was prescribed.

On the dates in question the Collector converted the appraised milreis value of the hides into United States currency at the rates certified by the respondent. The respondent had certified as the buying rates for cable transfers in Brazilian milreis, amounts more than forty per cent in excess of the actual rates, at the same time admitting that they were not the actual rates but asserting that there were no market rates by characterizing each rate certified as Nominal rate. Firm rates not available.”

During all of the period in question, as established by the affidavit of an officer of one of the largest New York trust companies, there were actual transactions'\in cable transfers payable in Brazilian milreis and in which firm quotations of the buying rates for such cable transfers were at all times obtainable. The actual rates on the three days in question were $0.0555, $0.0560 and $0.0585 per milreis, respectively. The maximum range over the whole three months’ period was only two-fifths of a cera. The respondent received daily reports of those rates from its member banks and every person having a principal place of business in its district who engaged in such transactions and transfers, with minor exceptions, was required by law to report complete information relative thereto to respondent.

Notwithstanding these actual market rates, the respondent certified for the same three days in question the following rates per milreis respectively: $0.083916, $0.084200 and $0.084700. These rates were over fifty per cent higher than the actual market rates.

The petitioner alleges that there is no way in which the respondent can be forced to certify the correct rates other than by this proceeding.

No answer was filed so the facts are admitted for the purpose of this proceeding. A motion was made under section 1293 of the Civil Practice Act for an order dismissing the petition on objections in point of law:

“ (1) this court has no jurisdiction of the subject of the proceeding;
(2) the petition does not state facts sufficient to entitle the petitioner to the relief prayed for or to any relief;
“ (3) the proceeding was not instituted within the time limited by law for the commencement thereof; and
(4) the determination sought to be reviewed can be adequately reviewed by an appeal to a court or to some other body or officer.”

The learned Special Term justice dismissed the petition as a matter of law on the ground that the court did not have jurisdiction of the subject of the proceeding and specifically excluded any question of discretion. Respondent’s remaining objections were not passed upon. We shall, therefore, devote ourselves to the question of jurisdiction solely except for a passing reference to objection numbered (4) above.

Curiously, the respondent advances two arguments which are opposed one to the other. It argues first, and in this the United States, as amicus curiae joins, that, on the basis of court decisions, the rates determined and certified by respondent for use in connection with the collection of customs are conclusive and binding and not subject to review in any court. It is a somewhat startling, if not sinister, argument to advance in a democracy that a citizen engaged in commerce is subject to uncontrolled power. We shall revert to this hereafter. The other argument is that Congress has granted exclusive jurisdiction over matters arising under section 522 (c) of the Tariff Act upon the Collectors of Customs and the courts having power to review their decisions. In other words, that the ordinary rule that the courts of this State have concurrent jurisdiction to enforce section 522 (c) does not apply because by the Tariff Act of 1930 Congress granted exclusive jurisdiction of all matters relating to the collection of customs to the Collector and to the Customs Court. Respondent concedes, however, that this must be implied from sections 514 and 515. It is elementary, however, that because Congress has legislated, State courts are not deprived of their jurisdiction. (People v. Welch, 141 N. Y. 266, 273, 275.) There it was said:

“ * * * There can be no presumption that state authority is excluded from the mere fact that Congress has legislated. There must be express words of exclusion, or a manifest repugnancy in the exercise of state authority over the subject.
“ * * * The jurisdiction of the United States courts is not exclusive unless there is found elsewhere in the legislation of Congress, provisions of clear and unmistakable import, talcing away the jurisdiction of the courts of the state. * * (See, also, to same effect, First Nat. Bank v. Missouri, 263 U. S. 640, 659, 660.)

In point of fact the jurisdiction of the Customs Court is limited to matters which the Collector has power to decide. {Matter of Fassett, 142 IT. S. 479, 487; De Lima v. Bidwell, 182 U. S. 1, 175-177.) If the Collector has any authority at all in connection with the respondent’s duty, at most it would be the power to determine whether or not the respondent has complied with the law. Neither the Collector nor any federal court having jurisdiction over the respondent has power to compel it to comply with section 522 (c).

To sustain this contention of respondent would be to say that a Congressional statute by implication excluded State courts from exercising jurisdiction beyond the powers of the Collectors and the Customs Courts although such' jurisdiction had been conferred upon them by our laws. It is a sufficient answer to quote the following from Dudley v. Mayhew (3 N. Y. 9, 15): “ It is very clear that when a party is confined to a statutory remedy, he must take it as it is conferred; and that where the enforcing tribunal is specified, the designation forms a part of the remedy, and-all others are excluded. The rule is inapplicable of course where property or a right is conferred, and no remedy for its invasion is specified. Then the party may sustain his right or protect his property in the usual manner. That is in such cases reasonably supposed to be the intention of the Legislature, as it could not be the design to confer a barren property or a fruitless right, which could not be protected or enforced anywhere(Italics supplied.)

We return now to the question whether the Supreme Court is without jurisdiction to grant the relief sought and thus compel the respondent to perform the duties imposed by section 522 (c) in the manner directed.

Whether and to what extent section 522 (c) confers discretion upon respondent is plainly irrelevant on this motion. Its duties under the statute are mandatory and ministerial. It is a jurisdictional limitation upon the respondent’s power that the rates it certifies must be the buying rates for cable transfers payable in foreign currency in the New York market at noon on each day. By its motion to dismiss the respondent admitted not only that the rates it certified were not those rates and, accordingly, that it exceeded its powers under the statute, but that the actual rates were as claimed by petitioner.

State courts have jurisdiction concurrently with the federal courts to defend and enforce private rights created by federal laws, except (1) where Congress has deprived State courts of that jurisdiction by conferring exclusive jurisdiction over the subject matter upon the federal courts, and (2) where to do so would “ interfere ” with, that is, impair or destroy, the efficiency of the federal agent to perform its official duties. (Claflin v. Houseman, 93 U. S. 130, 133-143; Second Employers’ Liability Cases, 223 U. S. 1, 55-59; Galveston, H. & S. A. Ry. Co. v. Wallace, 223 U. S. 481, 490; Minneapolis & St. Louis R. R. Co. v. Bombolis, 241 U. S. 211, 218, 221, 222; People v. Welch, 141 N. Y. 266, 272, 273.) We have indicated, supra, that Congress has not deprived the State courts of their ordinary concurrent jurisdiction. Moreover, Congress has specifically provided that respondent can “ * * * sue and be sued, complain and defend, in any court of law or equity.” (U. S. Code, tit. 12, § 341.) That includes State courts. (U. S. Code, tit. 12, § 632.)

The learned Special Term justice granted respondent’s motion on the exclusive authority of McClung v. Silliman (6 Wheat. [U. S.] 598 [1821]) that there was no jurisdiction in the State courts to direct or control the conduct of a federal agent acting under a federal act, for the reason that such agent is subject only to the power creating it. Obviously that inference is not correct, for in the McClung case the application was first made to the local federal court and there denied because that court had no original power to issue mandamus, such jurisdiction having been generally withheld from federal courts by the Judiciary Act of 1789. On then being renewed in the Ohio Supreme Court, the government objected that a State court had no power to issue mandamus to a federal agent acting under a federal statute. This preliminary objection to jurisdiction was overruled and the court, after trial, dismissed the application on the merits.

While language is found in Judge Johnson’s opinion, which seemingly supports respondent’s contention, the mandate, by which the holding must be determined, directs an affirmance on the merits of the judgment of the Ohio Supreme Court. The McClung case came to the United States Supreme Court on writ of error to the Ohio Supreme Court for Muskingum County. McClung, claiming a preemptive interest in several tracts of alleged public land ” of the United States, brought a mandamus proceeding in that Ohio court to compel Silliman, the Register of the United States Land Office at Zanesville, Ohio, to “ enter ” his application in the Register’s Book of Entries ” — the initiatory step ” entitling him, upon full payment of the purchase price, to a “ final certificate ” which in turn would entitle him to a patent. Silliman had refused to make the entry on the ground that he had no power to act in the premises, because the lands had been previously sold to others. The Ohio court sustained its own jurisdiction over Silliman on a preliminary plea to its jurisdiction, in which Silliman argued that “ * * * for his official acts as an officer of the United States, he is not subject to the order, direction or control of the courts of law for the State of Ohio, * * A year later the case was tried on a stipulation of facts which is a part of the record in the Supreme Court. On the stipulated facts the Ohio court dismissed the plaintiff’s motion for a mandamus on the merits. The Supreme Court of the United States affirmed the dismissal. Its mandate reads: Judgment. * * * it is adjudged and ordered that the judgment of the said Supreme Court of the State of Ohio be and the same hereby is affirmed, with costs; it being the opinion of this court that the said Supreme Court of the State of Ohio had no authority to issue a mandamus in this case.” Since the Supreme Court affirmed the Ohio court’s dismissal of McClung’s petition on the merits, there was by necessary implication a holding that the State court had jurisdiction to issue mandamus in a proper case to compel compliance with a federal statute by a federal agent (Northern Pacific Ry. Co. v. North Dakota, 250 U. S. 135), since the United States Supreme Court, if it intended to hold State courts without power to exercise their usual and conceded jurisdiction as against federal agents acting under Federal laws, would then by its mandate to the Ohio court have directed instead a dismissal for lack of jurisdiction — specifying that ground. As was aptly said in Kendall v. United, States (12 Pet. [U. S.] at p. 619, referring to Columbian Ins. Co. v. Wheelwright, 7 Wheat. [U. S.] 524, 534): “If the want of jurisdiction in the circuit court had been the ground on which the writ of error was quashed, the same course would have been pursued as was done in the case of Custiss v. Georgetown & Alexandria Turnpike Co., 6 Cranch, 233; where the writ of error was quashed on the ground that the court below had not cognizance of the matter.”

Assuming, however, that the McClung case held that, on the stipulated facts in that case, the Ohio court did not have jurisdiction to grant the relief sought, it still is not authority that our Supreme Court was without jurisdiction here. The facts are in no way comparable. Here the petitioner is seeking to compel the respondent to perform a duty specifically imposed by federal statute., McClung sought to compel the Register of the Land Office to perform an act which was wholly beyond his authority. As appears from the stipulation of facts, prior to McClung’s attempt to have the Register enter his application, a-part of the land in question had been duly sold by a former Register of an earlier land office in another district and a.United States patent had been issued; another part had also been sold by the same Register and the purchaser-had made full payment, although he had not received his patent; and the remainder of the land had been sold at private sale in accordance with the law. Accordingly, no part of the land McClung was seeking to pre-empt was a part of the public domain at the time he made his application. It had ceased to be within the jurisdiction of the land office and was no longer subject to entry or to disposition by the land officers. The Register had ño power or duty to do the act which McClung sought to force him to perform. (Simmons v. Wagner, 101 U. S. 260, 261, 262; Borax Consolidated, Ltd., v. Los Angeles, 296 U. S. 10, 17, 18.) For that reason no court, State or federal, had power to grant the relief sought in the McClung case. As stated by Mr. Justice Johnson, after pointing out that, were the case decided for the plaintiff, the Supreme Court would either be required to order the State court to issue the writ demanded or do so itself, at page 603 (6 Wheat. [U. S.]): “* * * Or, in other words, to issue the writ of mandamus, in a case to which it is obvious that neither the jurisdiction of that [the state] court, nor this, extends.”

McClung sought to have the court “ interfere ” with the Register’s official duties ” by forcing him to do an act wholly beyond his authority. Whether Justice Johnson, in holding that the State court lacked such power, used the word “ jurisdiction ” in its technical sense, or merely as meaning “authority,” as the Supreme Court’s mandate reads, under the Constitution no court, State or federal, could have granted the relief McClung desired.

The McClung case was decided in 1821 but in 1820 (Houston v. Moore, 5 Wheat. [U. S.] 1, 32) the same Supreme Court held that a State court had the power to enforce the federal military laws, saying by Justice Washington: Upon the whole, I am of opinion, after the most laborious examination of this delicate question, that the state court-martial had a concurrent jurisdiction with the tribunal pointed out by the acts of congress, to try a militia man who had disobeyed the call of the president, and to enforce the laws of congress against such delinquent; and that this authority will remain to be so exercised, until it shall please congress to vest it exclusively elsewhere, or until the state of Pennsylvania shall withdraw from their court-martial the authority to take such jurisdiction.” Mr. Justice Johnson, the author of the opinion in the McClung case, wrote a lengthy dissenting opinion and no doubt his views therein expressed affected and colored his McClung opinion. That, however, did not control the majority in that latter case for the mandate affirmed the dismissal on the merits by the Ohio Supreme Court, which latter had definitely asserted its jurisdiction, in a proper case, to issue mandamus to a federal agent. The enforcement of the federal military laws involves as much of a governmental function of an independent sovereignty as does the enforcement of the tariff laws.

It seems entirely clear that, in the absence of federal exclusory laws, all doubts as to the jurisdiction of State courts over federal matters and agents was set at rest by the complete adoption by the United States Supreme Court in Claflin v. Houseman (93 U. S. 130) of the views of Alexander Hamilton, respecting State courts, as set out in the eighty-second number of “ The Federalist.”

There it was argued by the defendants that The State courts can neither interfere with, or interrupt, the exercise of the authority with which he [an officer appointed under the laws of the United States] is clothed, nor aid in enforcing it,” and McClung v. Silliman was cited (p. 132). In overruling that argument the Supreme Court said (pp. 136,137): “ The laws of the United States are laws in the several States, and just as much binding on the citizens and courts thereof as the State laws are. The United States is not a foreign sovereignty as regards the several States, but is a concurrent, and, within its jurisdiction, paramount sovereignty, * * *. Legal or equitable rights, acquired under either system of laws, may be enforced in any court of either sovereignty competent to hear and determine such kind of rights and not restrained by its constitution in the exercise of such jurisdiction. * * * So rights, whether legal or equitable, acquired under the laws of the United States, may be prosecuted in the United States courts, or in the State courts, competent to decide rights of the like character and class; subject, however, to this qualification, that where a right arises under a law of the United States, .Congress may, if it sees fit, give to the Federal courts exclusive jurisdiction! * * * jurisdiction is sometimes exclusive by express enactment and sometimes by implication. If an Act of Congress gives a penalty [meaning civil and remedial] to a party aggrieved, without specifying a remedy for its enforcement, there is no reason why it should not be enforced, if not provided otherwise by some Act of Congress, by a proper action in a State court. The fact that a State court derives its existence and functions from the State laws is no reason why it should not afford relief; because it is subject also to the laws of the United States, and is just as much bound to recognize these as operative within the State as it is to recognize the State laws. The two together form one system of jurisprudence, which constitutes the law of the land for the State; and the courts of the two jurisdictions are not foreign to each other, nor to be treated by each other as such, but as courts of the, same country, having jurisdiction partly different and partly concurrent. The disposition to regard the laws of the United States as emanating from a foreign'jurisdiction is founded on erroneous views of the» nature and relations of the State and Federal governments. It is often the cause or the consequence of an unjustifiable jealousy of the United States government, which has been the occasion of disastrous evils to the country.

“ It is true, the sovereignties are distinct, and neither can interfere with the proper jurisdiction of the other, as was so clearly shown by" Chief Justice Taney, in the case of Ableman v. Booth, 21 How. 506; and hence the State courts have no power to revise the action of the Federal courts, nor the Federal the State, except where the Federal Constitution or laws are involved. But this is no reason why the State courts should not be open for the prosecution of rights growing out of the laws of the United States, to which their jurisdiction is competent, and not denied.” (Emphasis and insertion supplied.)

So also in Minneapolis & St. Louis R. R. Co. v. Bombolis ([1915] 241U. S. 211,221, 222) Chief Justice White on the authority of Claflin v. Houseman (supra), wrote that the “ * * * lawful rights of the citizen, whether arising from a legitimate exercise of state or national power, unless excepted by express constitutional limitation or by valid legislation to that effect, are concurrently subject to be enforced in the courts of the State or nation when such rights come within the general scope of the jurisdiction conferred upon such courts by the authority, State or nation, creating them. This principle was made the basis of the first Federal Judiciary Act and .has prevailed in theory and practice ever since as to rights of every character, whether derived from constitutional grant or legislative enactment, State or national. In fact this theory and practice is but an expression of the principles underlying the Constitution and which cause the governments and courts of both the Nation and the several States not to be strange or foreign to each other in the broad sense of that word, but to be all courts of a common country, all within the orbit of their lawful authority being charged with the duty to safeguard and enforce the right of every citizen without reference to the particular exercise of governmental power from which the right may have arisen, if only the authority to enforce such right comes generally within the scope of the jurisdiction conferred by the government creating them.”

Similarly this court in Teall v. Felton (1 N. Y. 537, 545-549; affd., 12 How. 284, 291, 292)-, in holding a local postmaster liable for damages for neglect of duty in withholding mail, said (at pp. 545, 547) :“***! think that it is strictly true that in all civil cases where the common law affords a redress, the party injured may seek it in a state tribunal, proceeding according to the course of the common law, and having jurisdiction of the person of the defendant, though he may be an officer of the federal government, and affect to act under a law of the Union.

“ * * * it is an incorrect conclusion, that because a law of Congress prescribes the duties of an officer of the federal government, and in a proper case he may thereunder defend his acts, for such reason the state courts are ousted of jurisdiction.”

The Claflin. case is decisive of three points:

1. It reaffirms the doctrine of this court in Teall v. Felton {supra), making federal agents purporting to act under federal laws hable in a great variety of actions for their wrongs, by saying (at p. 142): We do not see why this case [Teall v. Felton] is not decisive of the very question under consideration.”

2. It declared and reaffirmed the effect of Houston v. Moore (5 Wheat. [U. S.] 1) on jurisdiction of State courts, by saying in part: Houston, a delinquent under the United States law, was tried by a state court-martial; and it was decided that the court had jurisdiction of the offense, having been constituted, in fact, to enforce the laws of the United States which the state legislature had re-enacted. But the decision (which was delivered by Mr. Justice Washington) was based upon the general principle that the State court had jurisdiction of the offence, irrespective of the authority, State or Federal, which created it. Not that Congress could confer jurisdiction upon the State courts, but that these courts might exercise jurisdiction on cases authorized by the laws of the State, and not prohibited by the exclusive jurisdiction of the Federal courts. Justices Story and Johnson dissented; and, perhaps, the court went further, in that case, than it would now. * * * Be this as it may, it was only a question of construction; and the court conceded that Congress had the power to make the jurisdiction of its own courts exclusive” (pp. 141-142).

3. It overruled the contention of the plaintiff in error, for which he cited the McClung case, and which his counsel worded as follows (see p. 132): “■ The fact that an assignee in bankruptcy is dependent upon the national tribunals, and independent of those of the States, is conclusive against the jurisdiction of the latter, over statutory actions brought by him as an officer appointed under the laws of the United States. The State courts can neither interfere with, or interrupt, the exercise of the authority with which he is clothed, nor aid in enforcing it.” (Emphasis supplied.)

Thus the Claflin case destroys, as authority in any respect for respondent, the McClung case and expounds the law of jurisdiction of the state courts to be that as expressed by-Alexander Hamilton. This Court of Appeals, however, anticipated the United States Supreme Court in the expression of those views in holding that federal agents purporting to act under federal laws were amenable to State courts for their conduct. (Teall v. Felton, supra.)

The United States Supreme Court in the McClung case has necessarily affirmed the jurisdiction of the State court to issue mandamus to a federal agent, although its issuance was reversed because of an interpretation of the federal statute which left the petitioner there without merit. Had the interpretation of the statute been otherwise, undoubtedly the state court mandamus against the federal agent would have been affirmed. (Northern Pacific Ry. Co. v. North Dakota, 250 U. S. 135, 142, 152.) This power is again confirmed by the case of Biggs v. Johnson County (6 Wall. [U. S] 166). In that case the Federal Circuit Court, within its proper ancillary jurisdiction, where the State court had first enjoined the county officers from levying a tax, mandamused those county officials to levy the enjoined tax, for the purpose of paying on the bonds, held to be obligatory on the county by the federal court judgment.

The exclusive theory of respondent is that the federal government is an independent sovereignty, with the state courts having no power to affect in anywise the adudinistration of the federal tariffs and customs. The Claflin case demonstrates that that theory is incorrect, and the Biggs case destroys it by its holding that the federal courts -— of one independent sovereignty — may command county officials — of another independent sovereignty — to comply with a state statute by levying a tax. Thus the power of one sovereignty by its courts to enforce the performance by officers of another sovereignty of a statutory governmental function, such as raising taxes, is demonstrated. This power or jurisdiction must, in the absence of congressional exclusion, operate in favor of State as well as federal courts.

The cases cited by respondent are inapplicable here. When it is sought to have courts interfere ” by preventing or impairing performance by federal agents of their statutory duties, relief is denied whether the court be federal or state. Here the relief sought is to compel a compliance with the statute under which respondent is purporting to act — it is not to interfere with but to aid in enforcing duties imposed by statute. The only interference is with admittedly unlawful acts which are not " official ” acts but nullities.

Moreover, where jurisdiction is conferred, the federal courts mandamus federal agents. (Kendall v. United States, 12 Pet. [U. S.] 524, 608, 619-621.) In that case the Federal Circuit Court for the District of Columbia issued peremptory mandamus to the Postmaster-General of the United States commanding his performance of a federal statutory duty. It declared the writ to be no longer a high prerogative one, to be granted or withheld in absolute discretion, but to be “ considered a writ of right; * * The power to issue mandamus, not vested generally in the federal courts, was held properly exercisable by the federal courts of the District of Columbia because Congress had vested them with the powers of the courts of Maryland. The first section [of the act of Congress] declares, that the laws of the State of Maryland, as they now exist, shall be, and continue in force in that part of the district which was ceded by that State to the United States; which is the part lying on this side the Potomac, where the court was sitting when the mandamus was issued. It was admitted on the argument, that at the date of this act, the common law of England was in force in Maryland, and of course it remained and continued in force in this part of the district; and that the power to issue a mandamus in a proper case is a branch of the common law, cannot be doubted, and has been fully recognized as in practical operation in that State, * * * ” (pp. 619-620). (Insertion supplied.) That recognized power must reside equally in our Supreme Court.

The argument of the respondent and the government comes to this: However intentional the violation of the mandatory and non-discretionary statute and however grave and destructive the injury and damages suffered by one of our citizens and with damages inadequate (Kendall v. United States, 12 Pet. [U. S.] 524, 614, 615), and mandamus the only adequate remedy, the respondent may deliberately refuse to perform its statutory duties, because the State court has no power to compel performance, although it may correct or punish the misbehaving federal agent in every way save by ordering compliance with the plain terms of the federal statute.

That argument is a direct challenge to our courts which traditionally and fundamentally exist to furnish a remedy and an effective one, if possible, for every invasion of a right. The words of the court in Kendall v. United States (supra, at p. 624) are indeed apt and cogent: “ It is the prosecution of a suit to enforce a right secured by a special act of congress, requiring of the postmaster-general the performance of a precise, definite, and specific act, plainly enjoined by the law. It cannot be denied but that congress had the power to command that act to be done; and the power to ■ enforce the performance of the act must rest somewhere, or it will present a case which has often been said to involve a monstrous absurdity in a well Organized government, that there should be no remedy, although a clear and undeniable right should be shown to exist.’4

There is no other adequate remedy than mandamus. Recoverable damages are inadequate. (Kendall v. United States, supra, pp. 614, 615.) There is no jurisdiction in the customs authorities or courts to consider the question and, if there were, the power could not be effectively or adequately exercised by customs authorities or courts, for respondent would not or could not be a proper party to those proceedings and, if it were, there exists no power in those customs .authorities or courts to command compliance by respondent with the Tariff Act by certifying the actual market rates.

The facts are conceded; the violation is clear; the injury and damages grave. Our state courts in those circumstances should not abdicate nor minimize their constitutional and statutory powers, traditionally exercised, by failing to direct the issuance of the necessary mandamus order petitioned for and which constitutes the only adequate remedy against the continuance of a conceded wrong. Gelber in his Oxford Pamphlet, entitled “ War for Power and Power for Peace,” says (at p: 8): “ All power corrupts, said Lord Acton, and absolute power corrupts absolutely.”

Respondent’s argument that there is no power, federal or State, to correct or prevent this conceded wrong, arising out of uncontrolled power, is one to which this court cannot subscribe. That is government by men and not by law.

The order should be reversed, with costs.

Loeghran, Finch, Rippet, Lewis and Desmond, JJ., concur with Lehman, Ch. J.; Conway, J., dissents in opinion.

Order affirmed.


text:
    Ernest L. Schwab, Appellant, v. Rubel Corporation et al., Respondents.

      Argued May 23, 1941;
    decided October 16, 1941.

      George Rosling for appellant.
    Defendants owed plaintiff a common-law duty to exercise reasonable care under all the circumstances. Such duty was breached when the defendants left a large unguarded opening, flush with the floor, without warning plaintiff of its existence or taking such reasonable precautions to protect it as the nature of the work being done would conveniently have permitted. (Meiers v. Koch Brewery, 229 N. Y. 10; Jenkins v. 313-381 West 37th Street Corp., 284 N. Y. 397.) Although defendant Reichman & Hoffman Bros., Inc., was an independent contractor, defendant Rubel Corporation continued jointly hable with it for the failure to take reasonable precautions to guard the opening. (Hanley v. Central Sav. Bank, 255 App. Div. 542; 280 N. Y. 734; Rosenberg v. Schwarts, 260 N. Y. 162.)

      Frederick Mellor, John C. Martin and William Butler for Rubel Corporation, respondent.
    The defendant did not breach any common-law duty that it owed to the plaintiff. (Maloney v. Hearst Hotels Corp., 274 N. Y. 106; Kern v. Great Atlantic & Pacific Tea Co., 241 N. Y. 600.) The fact that Rubel Corporation retained some limited power of general supervision for the purpose of seeing that its property was not damaged, and that only the property which had been sold under the contract was being removed, would not make it liable for the independent negligence of Reichman & Hoffman Bros., Inc. (Moore v. Wills, Inc., 250 N. Y. 426; Joyce v. Convent Avenue Constr. Co., 155 App. Div. 586.)

      Clarence E. Mellen for Reichman & Hoffman Bros., Inc., respondent.
    The contractor violated no common-law duty to plaintiff. (Maloney v. Hearst Hotels Corp., 274 N. Y. 106; McLean v. Studebaker Bros. Co., 221 N. Y. 475; Mullin v. Genesee Co. El. L. P. & G. Co., 202 N. Y. 275; Payne v. City of New York, 277 N. Y. 393; Morse v. Buffalo Tank Corp., 280 N. Y. 110.)
   Conway, J.

We have presented to us again the question of the duty of those in possession and control of realty to city- firemen who enter upon the property to extinguish a fire. Our decision is limited to the precise facts involved.

The defendant Rubel Corporation, hereinafter referrred to as Rubel, was the owner of premises located on West Seventeenth street in Manhattan, New York city. In 1935 and 1936 it had used the premises for the manufacture of ice and as a distribution point for its sale. Those uses were discontinued in 1937 at which time Rubel sold to the defendant Reichman & Hoffman Bros., Inc., hereinafter referred to as Reichman, all the scrap iron, metal, machinery and equipment in the premises. Under the terms of sale the removal of the articles was to take place within sixty days and was to be done under the supervision of a named engineer of Rubel. The building itself was not to be demolished.

The accident which resulted in this action occurred in a room on the first floor above the ground floor of the premises during the dismantling operation. The floor of that room had been almost completely covered with metal ice tanks which stood four or five feet in height. In a space remaining in the rear, which was ten or fifteen feet in depth, there were two or three openings or shafts. The openings were flush with the floor. There was conflicting testimony as to whether those openings were wholly or partly unenclosed. The vice-president of Reichman on examination before trial testified that the shaftways were open, unenclosed and with no toe boards along the edge. On the trial he testified that they were partially enclosed. Other witnesses testified as to complete absence of enclosure. The openings were used by the employees of Reichman, during the dismantling, to drop material through to the lower or ground floor. An ice elevator referred to in the testimony as a lowerator ” had occupied one of the smaller openings but it had been removed.

While an employee of Reichman was engaged in cutting' through ice tanks and pipes with an acetylene torch at the rear wall adjacent to the space in which the “ lowerator ” had been located one of the pipes exploded and-; a fire occurred.

The plaintiff, a lieutenant in the city fire department, followed by bis men, entered the room when the smoke was so dense that one could not see more than eight inches in advance. The employee who had caused the fire testified that he told the plaintiff that it would be better if the latter entered the building through the adjoining street (Sixteenth street) because, if you go through this way it is a little dangerous.” The plaintiff, however, continued to go forward with his men who were playing a hose on the fire and, despite the fact that he moved bis feet carefully over the slimy and slippery floor, he fell through the “ lowerator ” opening and was injured. There was conflict in the testimony as to whether the plaintiff was the one to whom the warning had been given in as much as he wore a black helmet with a white front while the battalion chief wore a helmet entirely white. The plaintiff denied receiving any warning.

We said in Jenkins v. 318-321 West 87th Street Corp. (284 N. Y. 397), where there was no claim of a violation of statute or ordinance,

“ The superintendent of the building testified on behalf of the plaintiffs. According to his testimony he was in the sub-basement when the fire started. He was about to remove the head of an empty steel barrel which had previously contained oil when an explosion occurred and water began to pour from the fire sprinklers. He was burned, and ‘ scrambled upstairs and entered a store on the ground floor of the building where his burns were being rubbed with oil when the firemen arrived. He also testified that he had seen no fire before the explosion. The origin of the fire and the exact cause of the first explosion are not otherwise explained in the record. * * *

While the presence of gasoline in the quantity indicated would not, under ordinary circumstances, constitute an xmusual hazard (.Flaherty v. Metro Stations, Inc., 202 App. Div. 583, 588), its presence in a closed room in which a fire was burning and where an explosion had occurred presented a situation on which the jury might predicate a finding of unusual hazard. If such a danger existed to the knowledge of the defendant or its agent, the defendant was under a duty if it had opportunity to give warning of the peril. (Meiers v. Koch Brewery, 229 N. Y. 10; American Law Institute, Restatement of the Law of Torts, § 345.) * * *

“ This affirmative proof, together with the undisputed fact that while the superintendent was in the sub-basement an explosion had occurred, warranted a finding by the jury that defendant or its agent in charge had notice of the unusual hazard into which the fireman unknowingly walked. Opportunity to warn the plaintiffs of the peril might be inferred by the jury from the fact that the superintendent was on the premises when the firemen arrived and knew of their arrival.

Defendant’s liability was, therefore, under the circumstances presented by this record, a question of fact for the jury and, but for an error in the receipt of evidence, we would be constrained to reinstate the verdict” (pp. 401, 402).

Clearly it was a question of fact whether there was here presented a situation constituting an unusual hazard, within the meaning of the Jenkins case, to one privileged to enter the building for a public purpose. (See Restatement of the Law of Torts, § 345.) A jury could have found that the condition existed to the knowledge, and resultant responsibility, of the defendants in view of testimony as to continued presence on the premises not only of the employees of Reichman but of its vice-president and the engineer of Rubel. (Hanley v. Central Savings Bank, 255 App. Div. 542; affd., 280 N. Y. 734.) That there was opportunity to give warning of the peril is made manifest by the testimony of the employee who remained and claimed to have given warning. True, it was not necessary for the warning to be given to each and every officer or fireman who entered the room. Warning to the first to enter would have been sufficient. It may be that had the employee fled, there would have been no liability. We do not pass on that. The questions of fact, however, as to whether there was an unusual hazard, whether such condition existed to the knowledge of the defendants or their agents and whether, if those questions were answered in the affirmative, a proper and definite warning of the peril was given, were for the jury.

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

Loughban, Rippey, Lewis and Desmond, JJ., concur; Lehman, Ch. J., and Finch, J., concur as to the defendant Reichman & Hoffman Bros., Inc., on the authority of Jenkins v. 818-821 W. 87th St. Cory. (284 N. Y. 397), but dissent as to the defendant Rubel Corporation.

Judgments reversed, etc.