author: Lehman, Ch. J.

text:
    The People of the State of New York ex rel. Chester W. Carr, Respondent, against Walter B. Martin, as Warden of Clinton Prison, Respondent. The People of the State of New York, Appellant.

      Argued April 21, 1941;
    decided June 12, 1941.

      John J. Bennett, Jr., Attorney-General (Henry Epstein, Patrick H. Clune and Everett D. Mereness of counsel), for appellant.
    The question decided by the Appellate Division was not properly reviewable under a writ of habeas corpus. (People ex rel. Bailey v. McCann, 222 App. Div. 465; People ex rel. Levin v. Barr, 232 N. Y. Supp. 849.)

      Morton M. Z. Lynn for respondent. Habeas corpus is the proper method for relator to seek his release.

      (People ex rel. Sherwood v. City of Buffalo, 127 Misc. Rep. 290; People ex rel. Holt v. Lambert, 237 App. Div. 39; 262 N. Y. 511; People ex rel. Lichtenstein v. Langan, 196 N. Y. 260; People ex rel. Childs v. Knott, 187 App. Div. 604; 228 N. Y. 608; Matter of Marcean, 32 Misc. Rep. 217; White v. Levine, 40 Fed. Rep. [2d] 502; Manning v. Biddle, 14 Fed. Rep. [2d] 518.)
   Lehman, Ch. J.

The relator was indicted by the grand jury of Saratoga county upon charges of grand larceny. The indictment contained five counts. In two counts he was accused of grand larceny, first degree; in three counts he was charged with grand larceny, second degree. In March, 1940, he pleaded guilty of grand larceny, second degree, as charged in the third count which accused him of the appropriation of five rings owned by Rose Bavin.” He was sentenced upon that plea to imprisonment for the term of not less than five years nor more than ten years as a second offender. In habeas corpus proceedings the relator thereafter challenged the jurisdiction of the court to sentence him to imprisonment upon his plea of guilt of that charge.

In his petition for a writ of habeas corpus the relator urges that the court was without jurisdiction and its judgment invalid on many grounds. Upon this appeal we need consider only the allegations that the complainant herein named as ‘ Rose Bavin ’ was and is the defendant’s legal lawful wife ‘ Rose Carr.’ ” And that the defendant could not steal his own property and the property alleged to have been stolen is and was the joint property of the petitioner, Charles [Chester] W. Carr, and his legal lawful wife, Rose Bavin Carr.” The Clinton County Court dismissed the writ. The Appellate Bivision reversed and sustained the writ, stating: “ It appears that he was convicted of the crime of grand larceny for having stolen two rings from his wife. A husband may not be convicted for larceny from his wife.” (261 App. Biv. 865.)

It has been said that “ at common law crimes against the property of another cannot be committed by husband or wife against the property of the other, owing to the unity of husband and wife and the rights of the husband in the property of the wife.” (30 Corpus Juris, page 715, and cases there cited.) Under the provisions of the Bomestic Relations Law (Cons. Laws, ch. 14) a married woman has “ all the rights in respect to property, real or personal * * * and to make contracts in respect thereto with any person, including her husband * * * as if she were unmarried.” (§ 51.) “ Husband and wife may convey or transfer real or personal property directly, the one to the other, without the intervention of a third person.” (§56.) A married woman has a right of action against her husband for his wrongful or tortious acts resulting to her in any personal injury as defined in section thirty-seven-a of the general construction law, or resulting in injury to her property, as if they were unmarried.” (§ 57.) These and other statutes have so changed the status of husband and wife that few vestiges are left of the common-law concept of the unity of husband and wife, or of the husband’s right to possess and control his wife’s chattels; and it was upon these concepts that the conclusion that neither husband nor wife can commit a crime through appropriation or destruction of the property of the other was based. The question whether that common-law rule survives the statutory changes in the status and mutual rights and obligations of husband and wife is not free from doubt. No such question was raised at the trial of the indictment and we do not reach that question unless it may be raised in habeas corpus proceedings.

A person claiming that he is unlawfully imprisoned is not entitled to a writ of habeas corpus “ where he * * * is detained by virtue of the final judgment or decree of a competent tribunal of civil or criminal jurisdiction.” (Civ. Pr. Act, § 1231.) Here the relator is imprisoned by virtue of the judgment of conviction of the County Court of Saratoga County. That court has general jurisdiction to try indictments for felonies. The indictment sufficiently charges that the relator is guilty of larceny in the second degree committed as set forth therein. The relator pleaded guilty to the charge. The sentence imposed is in accordance with the statute defining the punishment that may be imposed for the offense charged. The relator claims that the judgment is nevertheless void because a husband cannot be guilty of larceny by appropriation of property belonging to his wife and that no court has jurisdiction to pass judgment of imprisonment upon an accused where the acts charged do not constitute a crime.

An order or judgment of a court acting without jurisdiction is entirely void and a person imprisoned by virtue of such an order or judgment may obtain his release by habeas corpus proceedings. A final order or judgment of a court of competent jurisdiction, though erroneous, is not void if the court had jurisdiction of the person of the accused and jurisdiction to try the charge made against him. The statute in express terms places that limitation upon the jurisdiction of a court to examine in habeas corpus proceedings the validity of a sentence of imprisonment passed upon an accused by another court, and even without a statute there are analogous limitations of jurisdiction “ arising from the nature and objects of the writ itself, as defined by the common law, from which its name and incidents are derived.” (Matter of Siebold, 100 U. S. 371.) In that case the Supreme Court of the United States said: The only ground on which this court, or any court, without some special statute authorizing it, will give relief on habeas corpus to a prisoner under conviction and sentence of another court is the want of jurisdiction in such court over the person or the cause, or some other matter rendering its proceedings void.” (p. 375).

In People v. Hislop (77 N. Y. 331) the defendant1', was sentenced to imprisonment for an offense for which the penalty prescribed by the statute was a fine and no court had jurisdiction to impose any other punishment. In People ex rel. Frey v. Warden (100 N. Y. 20) the relator was imprisoned by virtue of a warrant to enforce the collection of a fine imposed by a military court for non-performance of military duty though the relator was not an enlisted man and the military court had no jurisdiction over the relator’s person for it is a fundamental requisite to the jurisdiction of such courts that the persons over whom they attempt to exercise authority shall have been duly enlisted and be legally subject to the obligations of military discipline ” (p. 25).

In each of those cases the relator was detained by virtue of a judgment of a court which had no jurisdiction to determine any question of law or fact affecting the guilt of the relator. In each case the challenge of the lawfulness of the relator’s imprisonment was directed to the competency of the court to hold any trial or pass upon any such question. The trial courts there were without' any jurisdiction over the proceedings from their inception. There can be no doubt that a person detained under a judgment of a court, which never acquired jurisdiction of the cause which it tried, is entitled to a writ of habeas corpus, and at least in some cases he may show such basic infirmity in the judgment by proof extraneous to the proceedings before the court which granted the judgment. It has been recently held by the Supreme Court of the United States that this practice must be followed where the relator claims that the judgment was based upon a plea of guilty obtained by violation of the constitutional right of the accused. (See Smith v. O’Grady, 312 U. S. 329.)

Where, as in those cases, a person is detained pursuant to a judgment which is entirely void because it is based upon the determination by the court of questions which the court had no jurisdiction even to consider,- the person unlawfully detained is entitled to a writ of habeas corpus. Here the question is entirely different. The relator’s plea of guilty was an admission of the allegations contained in the indictment. It established guilt of the crime charged as incontrovertibly as a verdict of the jury upon a trial where the court made no erroneous rulings of law. The court would have been compelled to deny a motion by the relator to dismiss the indictment because it fails to state a crime cognizable by the court, if such motion had been made, for it is not contended that the facts alleged would not, if proven or admitted, establish the felony charged unless the further fact not alleged was established by proof or admission that the relator and the complaining witness were husband and wife. The People certainly did not have the burden of alleging in the indictment or showing at the trial that the person whose property the accused was charged with appropriating was not his wife. If the accused had at the trial shown the existence of that relationship the court would have been called upon to determine whether proof that a husband had appropriated his wife’s property would establish that he was guilty of larceny. That question is one of law and erroneous decision might result in the conviction of the defendant for a crime he did not commit. Erroneous or not it can hardly be doubted that the court had jurisdiction to decide that question and a judgment based upon an erroneous decision on a question of law made by a court competent to decide such question is not void. Then, too, the People might have challenged at the trial evidence of the defendant of the existence of the relationship. True the claim of the relator that he was married to the complaining witness was not controverted at the hearing upon the writ, but upon this appeal the People have requested the court to accept official records intended to show that the marriage occurred after the alleged larceny. Though I agree that such records may not be considered now, yet if they had been offered at the trial a question of fact would have been presented upon the issue of the guilt or innocence of the accused which only the jury could decide.

It thus clearly appears that the questions which the relator now urges might have been raised under a plea of not guilty and that the court would then have been called upon to decide the question of law involved and the jury might have been called upon to decide a question of fact, and it is clear that the court had jurisdiction to decide such question of law and the jury had jurisdiction to decide such question of fact. For that reason the judgment cannot be challenged by habeas corpus on the ground that the court was without jurisdiction, even if the judgment is erroneous.

The distinction between a void judgment and an erroneous judgment is at times shadowy. It has at times been said that a person imprisoned by virtue of a final judgment rendered after trial or plea of guilt may, in habeas corpus proceedings, go outside the record of the court which rendered the judgment to show that the acts for the doing of which he is restrained were such as could not constitute a crime. (See 57 A. L. R. 85, note.) The rule so stated may be applied only within the limited field within which the writ of habeas corpus may be used to challenge the validity of the judgment. It is perhaps significant that in the case which is annotated by the cited note in A. L. R., the court held that the alleged infirmity in the judgment of the criminal court could not be shown in habeas corpus proceedings and the cases referred to in the notes as authority for the stated rule emphasize the limitations on the application of the rule rather than the rule.

The leading case in America among those referred to there, is perhaps Matter of Siebold (100 U. S. 371). There the court said (at p. 376):

Chief Justice Abbot, in Bex v. Sudáis (1 East, 306), said: ‘ It is a general rule that, where a person has been committed under the judgment of another court of competent criminal jurisdiction, this court [the King’s Bench] cannot review the sentence upon a return to a habeas corpus. In such cases, this court is not a court of appeal.’
It is stated, however, in Bacon’s Abridgment, probably in the words of Chief Baron Gilbebt, that, ‘ if the commitment be against law, as being made by one who had no jurisdiction of the cause, or for a matter for which by law no man ought to be punished, the court are to discharge.’ Bac. Abr., Hab. Corp., B. 10. The latter part of this rule, when applied to imprisonment under conviction and sentence, is confined to cases of clear and manifest want of criminality in the matter charged, such as in effect to render the proceedings void. The authority usually cited under this head is Bushel’s Case, decided in 1670. There, twelve jurymen'had been convicted in the oyer and terminer for rendering a verdict (against the charge of the court) acquitting William Penn and others, who were charged with meeting in conventicle. Being imprisoned for refusing to pay their fines, they applied to the Court of Common Pleas for a habeas corpus; and though the court, having no jurisdiction in criminal matters, hesitated to grant the writ, yet, having granted it, they discharged the prisoners, on the ground that their conviction was void, inasmuch as jurymen cannot be indicted for rendering any verdict they choose. The opinion of Chief Justice Vaughan in the case has rarely been excelled for judicial eloquence. T. Jones, 13; s. c. Vaughan, 135; s. c. 6 Howell’s State Trials, 999.”

The “ want of criminality ” of jurors in rendering a verdict acquitting an accused for good reason or bad reason is “ manifest ” and no less “ manifest ” is the lack of jurisdiction of any court to punish jurors for bringing in such a verdict. No plea of not guilty would there have availed the accused jurors and the court which tried the charge and imposed the sentence did not merely err in ruling upon the question of law whether the acts, admitted or proven, constitute a crime, but violated a fundamental principle of the common law in inquiring into the charge against the jurors. There is no analogy between that case and the case we are considering where the County Court had unquestionable jurisdiction to inquire into the relator’s guilt or innocence of the crime charged and to decide debatable questions both of law and of fact.

In such case under an unbroken line of decisions in the Supreme Court of the United States and under the mandate of our statutes, the relator is not entitled to a writ of habeas corpus. Thus, in Matter of Yarbrough (110 U. S. 651, 654) the court said that “^whether the indictment sets forth in comprehensive terms the offense which the statute describes and forbids, and for which it prescribes a punishment, is in every case a question of law, which must necessarily be decided by the court in which the case originates, and is therefore clearly within its jurisdiction.” Again in the case of Matter of Coy (127 U. S. 731, 739) the court concisely formulated the question presented: “The only question raised by the petitioners, supported by several points in regard to the statutes applicable thereto, is that the District Court which tried the indictment had no jurisdiction. This proposition is founded, not upon any want of jurisdiction of the person, but upon the broad' statement that the indictment presents no crime or offense under the laws of the United States.” In deciding whether the court could, in habeas corpus proceedings, decide that question the court reviewed its earlier decisions and quoted and followed the rule which had been stated in Matter of Tobias (3 Pet. 103). “ An imprisonment under a judgment cannot be unlawful, unless that judgment be an absolute nullity; and it is not a nullity if the court has general jurisdiction of the subject, although it should be erroneous. The Circuit Court for the District of Columbia is a court of record, having general jurisdiction over criminal cases. An offense cognizable in any court is cognizable in that court. If the offense be punishable by law, that court is competent to inflict the punishment. The judgment of such a tribunal has all the obligation which the judgment of any tribunal can have. To determine whether the offense charged in the indictment be legally punishable or not, is among the most unquestionable of its powers and duties. The decision of this question is the exercise of jurisdiction, whether the judgment be for or against the prisoner. The judgment is equally binding in the one case and in the other, and must remain in full force unless reversed regularly by a superior court capable of reversing it” (p. 757). (See, also, Riggins v. United States, 199 U. S. 547; Matter of Gregory, 219 U. S. 210.)

Under the rule enunciated in these cases it seems clear that even without the statute the relator was convicted upon his plea of guilty of a charge of larceny in a court which has “ general jurisdiction over criminal cases.” The statute, as we have pointed out, requires rigid observance of the limitations upon the use of the writ of habeas corpus arising from the nature and objects of the writ itself as defined by the common law.” In no case has a writ of habeas corpus been sustained by this court where imprisonment is under a final judgment of imprisonment by a court having jurisdiction of the person of the accused and general jurisdiction of criminal offenses. The statute, of course, does not, in terms, place any restriction upon the use of the writ to inquire into the legality of imprisonment before final judgment and pending trial upon an information or indictment which states no offense, but it is to be noted that in People ex rel. Collins v. McLaughlin (194 N. Y. 556) this court in holding that a court has power in habeas corpus proceedings to determine the sufficiency of an information in such case and whether a crime is charged, pointed out that except in rare cases such power should not be exercised. In this case the Appellate Division has in habeas corpus proceedings decided questions of law and of fact which were within the jurisdiction of the trial court, but which were not raised there. The writ of habeas corpus may not be used for such purpose.

The order of the Appellate Division should be reversed, that of the County Court affirmed, and the relator remanded to custody.

Loughban, Finch, Rippey, Lewis, Conway and Desmond, JJ., concur.

Ordered accordingly.


source: Caselaw Access Project

author: Lehman, Ch. J;

license: Public Domain

text:
    In the Matter of Thomas A. Heaney, Jr., et al., Appellants, against Joseph D. McGoldrick, as Comptroller of the City of New York, Respondent.

      Argued February 26, 1941;
    decided June 12, 1941.

      Roy P. Monahan, James F. Sharkey and Arthur C. Goldberg for appellants.
    The hearing held by the Comptroller was not conducted pursuant to subdivision 8 of section 220 of the Labor Law (Cons. Laws, ch. 31). (Austin v. City of New York, 258 N. Y. 113; Matter of Gaston v. Taylor, 274 N. Y. 359; Matter of Hilfer v. Board of Regents, 283 N. Y. 304.) The Comptroller failed to fix the prevailing rate of wage pursuant to section 220 of the Labor Law. (Long Island R. R. Co. v. Dept. of Labor, 256 N. Y. 498; Campbell v. City of New York, 244 N. Y. 317; Matter of Gaston v. Taylor, 274 N. Y. 359; Matter of Greenbaum v. Bingham, 201 N. Y. 343; Matter of Yates v. Mulrooney, 245 App. Div. 146; Matter of Heughes & Co. v. Andrews, 240 App. Div. 334; Interstate Commerce Comm. v. L. & N. R. R. Co., 227 U. S. 88; Matter of Smith v. Rosoff Tunnel, Inc., 259 App. Div. 617; Matter of N. Y. Water Service Corp. v. Water P. & C. Comm., 283 N. Y. 23; McNulty v. City of New York, 238 N. Y. 29; McAvoy v. City of New York, 52 App. Div. 485; 166 N. Y. 588.)

      Leonard M. Wallstein, Jr., and Leonard M. Wallstein for Competitive Civil Service Electricians Association of the City of New York, amicus curise.

    Since the Comptroller’s determination was based upon his own hearsay and ex parte summaries of information not introduced in evidence at the hearing, he violated the statutory requirement of a fair hearing. His determination was, therefore, unlawful and should be adjudged null and void. (Matter of Gaston v. Taylor, 274 N. Y. 359; Matter of Greenebaum v. Bingham, 201 N. Y. 343; Matter of Roge v. Valentine, 280 N. Y. 268; Matter of Yates v. Mulrooney, 245 App. Div. 146; Matter of Brenner v. Bruckman, 253 App. Div. 607; Matter of Heughes & Go. v. Andrews, 240 App. Div. 334; Interstate Commerce Comm. v. L. & N. R. R. Co., 227 U. S. 88; Matter of Smith v. Rosoff Tunnel, Inc., 259 App. Div. 617; Matter of New York Water Service Corp. v. Water P. & C. Comm., 283 N. Y. 23.)

      William C. Chanler, Corporation Counsel (Edward J. McGratty, Jr., and Paxton Blair of counsel), for respondent.
    The Comptroller properly limited his investigation to the prevailing rate of wage in private employment for work of a permanent and continuous nature, commensurate with that in which petitioner is engaged. (Austin v. City of New York, 258 N. Y. 113.)

      Harold Biegelman, H. H. Nordlinger and Jacob M. Dinnes for Citizens Budget Commission, Inc., amicus curise.

   Lehman, Ch. J;

The petitioner, Thomas A. Heaney, Jr., is employed on its public works by the city of New York, Department of Sanitation, under the civil service title of licensed fireman. The budget of the city provides for the appropriation of lump sums to be paid to a specified number of employees holding positions under that title, at the prevailing rates.” The rates of pay which these employees actually receive is seven dollars for an eight-hour day, or approximately eighty-seven and one-half cents per hour. The petitioner, claiming that this pay is less “ than the prevailing rate for a day’s work in the same trade or occupation in the locality * * * where such public work * * * is performed,” which each employee is entitled to receive for a legal day’s work in accordance with the provisions of section 220 of the Labor Law (Cons. Laws, ch. 31), filed a verified claim and the Comptroller thereupon caused an investigation to be made to determine the prevailing rate as required by that section. The petitioner and another employee of the city who had filed a verified claim received notice of the hearing. Other employees received no notice. At the hearing evidence was offered and received only in regard to the nature of the work, its continuity, the annual compensation earned and incidental advantages received by licensed firemen in the employ of the city. No evidence was offered as to the nature of the work performed or the compensation received by firemen licensed or unlicensed in private employ.

At the close of that hearing the Assistant Deputy Comptroller, who presided, stated, “ I will keep the record straight on this question, namely, that in case you have any desire, prior to determination, to put any further evidence in, we will fix a time for further hearings for that purpose. In the meanwhile, we will continue with our current survey and get together all facts as to prevailing wages on the outside. When that survey is completed, the result of the survey will be placed before you in terms of the report of the First Deputy Comptroller to the Comptroller and, if in the face of that report, you desire to put in more evidence, that time will be fixed so that you may have a hearing for that purpose. In the meanwhile, it is my suggestion that you send in as complete a fist of places that you feel ought to be included in the survey as to firemen and oilers. The names and addresses will be included in our survey. That, of course, will be supplemented by our own independent check up on firemen and oilers throughout the City. I think that will conclude the hearing.”

An investigation or survey was then made by persons appointed from civil service lists and assigned as investigators to the Labor Law Division of the Bureau of Investigation of the Comptroller’s office. Though the petitioner filed no list of employers or places to be visited by the investigators, all employers who were named upon a list signed by the International Representative of Firemen and Oilers, Local Union 56 of Greater New York, were interviewed by the investigators. A memorandum or summary of the results of the investigation was then prepared. Based almost exclusively upon data contained in that memorandum, a report including findings of fact was made by the First Deputy and Acting Comptroller; and the Comptroller thereupon filed a “determination” stating: “Now, after reading and filing the Report and Findings of said First Deputy Comptroller, and upon all papers and proceedings had therein, and due deliberation having been had, it is hereby DETERMINED, that the sum of $7.00 per day for an eight hour day was during the period from January 1, 1935, to date not less than the prevailing rate of wages for licensed firemen holding positions of steady employment in the City of New York.”

The petitioner, Heaney, then brought proceedings “ in behalf of himself and others similarly situated pursuant to the provisions of article 78 of the Civil Practice Act to review determinations of Joseph D. McGoldrick, as Comptroller of the City of New York, fixing the prevailing rate of wages for Licensed Firemen.” He annexed to the petition a list of those he claimed were similarly situated. Thereafter seventy-nine persons were allowed to intervene in these proceedings in the Appellate Division. That court confirmed the determination, one justice dissenting.

The petitioner challenges the determination both on the ground that no hearing was held or investigation conducted in the manner provided by the statute and on the ground that the determination disregards the standards provided by the statute for measurement of the prevailing rate of wages. We may consider the second ground of challenge only if we reject the first ground and determine that the determination is based upon investigation conducted in accordance with the statute.

The statute (Labor Law, § 220, subd. 8) provides:

“ 8. Before proceeding under a complaint presented as provided in subdivision seven, or before making any order or determination upon an investigation made upon his own initiative, the fiscal officer shall order a hearing thereon at a time and place to be specified, and shall give notice thereof, together with a copy of such complaint or the purpose thereof, or a statement of the facts disclosed upon such investigation, which notice shall be served personally or by mail on any person or corporation affected thereby; such person or corporation shall have an opportunity to be heard in respect to the matters complained of at the time and place specified in such notice, which time shall be not less than five days from the service of the notice personally or by mail. The fiscal officer in such investigation shall be deemed to be acting in a judicial capacity, and shall have the right to issue subpoenas, administer oaths and examine witnesses.”

We have said that notice of the hearing held upon the petitioner’s verified complaint was given only to the petitioner and to Kelleher who had filed a similar complaint. The petitioner contends that all other employees holding similar positions are persons “ affected ” by the investigation and determination and should also have received notice. We have said that the statute is to be interpreted with the degree of liberality essential to the attainment of the end in view ” (Austin v. City of New York, 258 N. Y. 113, 117), and again that “ the remedial or procedural provisions * * * should not be restricted within limits narrower than the affirmative rights and obligations which may be conveniently enforced through their application.” (Matter of Gaston v. Taylor, 274 N. Y. 359, 364.) Reiterating now the rules which in the past have guided us in construing the statute we conclude that the statute may not be “ construed ” as the petitioner urges, strictly in favor of the petitioners,” but rather that the remedial and procedural provisions of the statute must be construed in manner which will make their application a convenient and practical method of measuring the prevailing rate of pay and of enforcing the mandate that wages must conform to that rate. Only by a forced construction of the statute can a requirement be read into it that the Comptroller shall give notice to every laborer employed upon^a public work who might be entitled to receive the prevailing rate of pay as determined after investigation by the Comptroller, and such construction would tend to thwart, rather than to carry out, the purpose of the statute. These provisions were primarily intended to apply to employees of private contractors engaged in the construction of public works and indeed can in part have no application to city employees. (Matter of Gaston v. Taylor, supra.) Statutory requirement that the city should serve notice upon all persons employed by it as licensed firemen,” would be a burden, but the city could probably comply with it. A requirement that the city should serve notice upon all the employees of a private contractor engaged in the construction of a public work whenever the Comptroller is required to investigate the prevailing rate of wage paid to others in the same occupation in that locality would often be impossible. The meaning of the statute is hardly subject to doubt. An employee who initiates the investigation is a person affected ” by the investigation who is entitled to notice. So is an employer who must pay the rate determined by the investigation. Other persons in similar employ are not, for though they may, if they choose, claim the benefit of a determination, yet if they receive no notice of the investigation they are not bound by the determination in the same .sense as the employee who initiated the investigation. Even were that not true the petitioner who received the notice is not aggrieved by failure to give notice to others and, after participating in the proceedings, he cannot claim that the proceedings are void as to him, even though if others in similar employ had received notice they might have assisted in presenting argument or proof to sustain his petition.

The statute does not direct the Comptroller how to conduct his investigations. That is left to his discretion. Though the statute provides that “ in such investigation [he] shall be deemed to be acting in a judicial capacity,” the “ investigation ” need not be conducted as if it were a trial in a court of justice where a judicial officer may aet only upon sworn testimony and competent evidence, When the Legislature confers upon an administrative officer or board authority to act in a judicial capacity and, after investigation, to determine questions which may properly be submitted to administrative rather than judicial officers, and does not at the same time direct the manner in which the investigation of such questions shall be conducted, the form of the investigation depends upon the nature of the question to be determined, and the kind of data upon which such a determination can be based reasonably and fairly. Always, however, each party to the proceedings, who will be directly affected by the determination, must be accorded fair play; and fair play may require an opportunity for presentation of his side of the question. Information gathered by investigators and reported to the Comptroller may properly form the basis of the Comptroller’s determination, but the petitioner should be apprised of the facts disclosed upon such investigation and granted an opportunity to test by cross-examination the basis of the conclusions contained in the memorandum or report and to offer evidence which might affect the validity of those conclusions. (Cf. Matter of N. Y. Water Service Corp. v. Water P. & C. Commission, 283 N. Y. 23; Matter of Newbrand v. City of Yonkers, 285 N. Y. 164.) Without such opportunity the notice required by the statute would serve little purpose.

Here the petitioner received no statement of the facts disclosed by the investigation and no opportunity to controvert its conclusions before the determination of the Comptroller based upon those conclusions was made and filed. The Comptroller defends this procedure on the ground that the petitioner asked for no further hearing after he was apprised on the final hearing that the Commissioner! would proceed with his own survey. We have quoted what was there said by the Assistant Deputy Comptroller then presiding. The statement that “ when that survey is completed, the result of the survey will be placed before you * * * and, if in the face of that report, you desire to put in more evidence, that time will be fixed so that you may have a hearing for that purpose ” outlined a procedure which would be eminently fair and in which the petitioner acquiesced. Probably the Comptroller was not informed that the statement had been made, otherwise the procedure so indicated would not have been disregarded.

Determination should be annulled, with costs in all courts; the matter should be remitted to the Comptroller for further hearing and for determination after such hearing. We cannot now consider whether the determination set aside would have been valid if that procedure had been followed.

The order of the Appellate Division should be reversed, the determination annulled, with costs in this court and in the Appellate Division and the matter remitted to the Comptroller for further hearing and for determination after such hearing.

Loxjghran, Finch, Rippey, Lewis, Conway and Desmond, JJ., concur.

Ordered accordingly.


text:
    In the Matter of Albert J. Watson et al., Respondents, against Joseph D. McGoldrick, as Comptroller of the City of New York, Appellant.

      Argued February 26, 1941;
    decided June 12, 1941.

      William C. Chanler, Corporation Counsel (Edward J. McGratty, Jr., and Paxton Blair of counsel), for appellant.
    The determination of the Comptroller that petitioners have received not less than the prevailing rate of wages paid to commensurately employed motor grader operators in private employment is amply supported by the evidence. (McNulty v. City of New York, 238 N. Y. 29; Wood v. City of New York, 274 N. Y. 155; Manning v. City of New York, 150 Misc. Rep. 292; Austin v. City of New York, 258 N. Y. 113; McCaffrey v. State of New York, 259 N. Y. 159.)

      Samuel D. Smoleff for Citizens Union of the City of New York, amicus curise.

    There is no evidence of a prevailing rate in private industry for work comparable to that which the city offers. The hourly rate in private industry is the rate for irregular work, and is merely evidence to be considered in connection with other relevant factors in ascertaining a proper rate to be paid to a different class of employees, namely, those who have regular work. (Matter of New York Title & Mortgage Co., 277 N. Y. 66; Heiman v. Bishop, 272 N. Y. 83; Long Island R. R. Co. v. Dept. of Labor, 256 N. Y. 498; Metropolitan Water District v. Whitsett, 215 Cal. 400; Sheldon v. Metro-Goldwyn Pictures Corp., 309 U. S. 390; Matter of Board of Water Supply of New York, 277 N. Y. 452; Austin v. City of New York, 258 N. Y. 113.)

      Harold Riegelman, H. H. Nordlinger and Jacob M. Dinnes for Citizens Budget Commission, Inc., amicus curise.

    On the evidence, the Comptroller was authorized to find that petitioners received not less than the prevailing rate of wages for similar private employment. (Wood v. City of New York, 274 N. Y. 155; People v. Ryan, 274 N. Y. 149; Surace v. Danna, 248 N. Y. 18; City Bank F. T. Co. v. New York C. R. R. Co., 253 N. Y. 49; People v. Santoro, 229 N. Y. 277; People ex rel. Hallock v. Hennessy, 205 N. Y. 301; People ex rel. Frost v. Wilson, 62 N. Y. 186; Matter of Gaston v. Taylor, 274 N. Y. 359; McCaffrey v. State of New York, 259 N. Y. 159; People ex rel. Rolf v. Coler, 58 App. Div. 347; Matter of Niagara Falls P. Co. v. Water P. & C. Comm., 267 N. Y. 265; People ex rel. Freeborn & Co. v. Graves, 257 App. Div. 587; People ex rel. Sweeney v. Sturgis, 78 App. Div. 460; Bock v. City of New York, 31 Misc. Rep. 55.)

      Cornelius Bregoff, Thomas F. McAndrews and S. Earl Levene for respondents.
    The findings of the Comptroller are based on an erroneous theory of comparison and his determination is contrary to the law and against the weight of evidence. (Matter of Gaston v. Taylor, 274 N. Y. 359; Austin v. City of New York, 258 N. Y. 113; McNulty v. City of New York, 238 N. Y. 29; Campbell v. City of New York, 244 N. Y. 317; Matter of Metropolitan Life Ins. Co. v. Boland, 281 N. Y. 357; Fontheim v. Third Ave. Ry. Co.,
      281 N. Y. 392; Matter of Wingate v. McGoldrick, 279 N. Y. 246.)

      Leonard M. Wallstein, Jr., and Leonard M. Wallstein for Competitive Civil Service Electricians Association of the City of New York, amicus curiae,.

    The Comptroller’s determination, based upon an unauthorized definition of the prevailing rate of wage, improperly disregarded rates of wage paid, in employment which he deemed to be impermanent and temporary. (McNulty v. City of New York, 238 N. Y. 29; McAvoy v. City of New York, 52 App. Div. 485; 166 N. Y. 588; Campbell v. City of New York, 244 N. Y. 317; Matter of Metropolitan Life Ins. Co. v. Boland, 281 N. Y. 357; Fontheim v. Third Avenue Ry. Co., 281 N. Y. 392.)
   Lehman, Ch. J.

The petitioners are employed by the city of New York, under the civil service title of motor grader operators, to perform manual labor upon its public works. They and other persons employed by the city under that title are paid at the rate of seven dollars and fifty cents per day. The statute provides that the wages to be paid to them for a legal day’s work shall be not less than the prevailing rate for a day’s work in the same trade or occupation ” and in the same locality. Claiming that the wages they are receiving are less than this prevailing rate of wages, the petitioners instituted proceedings in accordance with section 220 of the Labor Law (Cons. Laws, ch. 31), to have the prevailing rate fixed by the Comptroller and paid to them. After hearing and investigation the Comptroller Determined, that the claims or complaints herein are hereby dismissed for lack of any evidence that the complainant Motor Grader Operators have received less than the prevailing rate of wages paid to commensurately employed Motor Grader Operators in private employment.” j

The petitioners then brought proceedings under article 78 of the Civil Practice Act to review the determination of the Comptroller. The Appellate Division held by a closely divided court that facts proven or stipulated or conceded “ would seem to require a determination that the prevailing rate of wages to be paid to the petitioners shall be equivalent to one dollar and twenty-five cents per hour or ten dollars per day,” but that in fixing such equivalence “ the comptroller may properly consider the pension benefits and free vacations received by the petitioners ” (260 App. Div. 77, 78). Accordingly an order was entered in the Appellate Division “ that the determination of the Comptroller herein be and the same hereby is annulled with $20.00 costs and disbursements to the petitioners, and the proceeding is herewith remitted to the Comptroller for determination in accordance with the opinion of the Court herein.”

In granting leave to the city to appeal to this court the Appellate Division has certified two questions:

" 1. Did the Comptroller err in dismissing the claims or complaints of the complainant Motor Grader Operators for lack of any evidence that the said complainants have received less than the prevailing rate of wages paid to commensurately employed Motor Grader Operators in private employment?
2. May the Comptroller in arriving at a determination of prevailing rate for a legal day’s work take into consideration annual vacations with pay and membership in the New York City Retirement System? ”

The city employs thirty-one men under the civil service title of motor grader operator. They work on the average two hundred and fifty days a year and receive daily wages for those days. As the title of their position indicates they operate a motor grader ” which according to testimony produced by the petitioners “ is a piece of road equipment used in maintenance work and also new work — that is on road work. It’s — the machine is equipped with a scraping blade and scarifying apparatus. The scarifying apparatus is used in ripping up hard roads; and the blade part of the machine is used for levelling off and grading and scraping and spreading materials.For instance, stone roads we spread stone, ash roads we spread ashes. It’s used in snow work, to plow snow with these types of machines. Some of our graders are equipped with what we call drift plows for snow work. That’s an extra plow attached to the machine of a scarifier unit; it’s used for plowing snow.”

At the trial the petitioners furnished a list of eighteen contractors who in 1938 employed thirty-seven motor grader operators and it was stipulated or conceded that these men “ constitute a majority of the workmen, laborers and mechanics engaged in the trade or occupation of Motor Grader Operators employed within the City of New York exclusive of those similarly employed by the City of New Yorlc.” It was further stipulated that “ the prevailing rate of wages paid to Motor Grader Operators engaged in the building or construction field is $1.25 per hour for an eight hour day and forty hour week.” (Italics are mine.) Thus it conclusively appeared that the daily wages paid to motor grader operators in city employ is less than the prevailing rate of wages paid to motor grader operators within the city of New York employed by contractors in the building or construction field and exclusive of those similarly employed by the city. It is not disputed that their duties are similar and the Appellate Division has held that it follows that motor grader operators in city employ are entitled to receive wages equal to the prevailing rate paid to the motor grader operators in private employ.

The correctness of that conclusion depends primarily upon the question whether the wages paid to thirty-seven persons in the building or construction field who are employed to operate motor graders by contractors, establishes the prevailing rate of those with similar duties who are employed by the city to operate similar equipment used for road building and for road maintenance including snow removal. The Comptroller has held that difference in the nature and condition of the employment of motor grader operators employed by contractors puts them in a different trade or occupation or renders comparison impossible. The survey or investigation conducted by the Comptroller disclosed that the thirty-seven men in private employ worked, on the average, only one hundred and three days a year. The city employees who are employed on an average for 250 days, therefore, receive a much larger amount for the work done during the year and the thirty-one city employees work more hours than the thirty-seven persons in private employ who receive higher daily wages, but who work fewer days. The city urges that economic security and the larger annual income of men in steady employ throughout the year should be reflected in difference of daily wages. The statute, however, permits no such differentiation.

The question, however, remains whether those in occasional employment in the building and construction field are engaged in the same trade or occupation,” within the meaning of the statute, as the city employees, for that is the statutory test of whether the same rate of wages must in this case be paid. They all operate equipment used in “ road work,” but in the city of New York there is little road work ” outside of city employ. The work done by the thirty-seven men in private employ was in large part due to extraordinary projects like the World’s Fair and a new aviation field. Moreover, the Comptroller has found that the employees of the city alone perform road maintenance and snow removal work. Differentiation must be based upon a substantial ground. Obviously it may not be used for the purpose of thwarting the statutory purpose, but differentiation of “ trade or occupation ” within the meaning of the statute where workmen perform similar function and similar work, but in different fields and under different conditions and receive wages at different rates may be reasonable. Indeed, without such differentiation application of the remedial provisions of the statute would at times be impractical if not impossible.

In this case all motor grader operators are, according to the report and survey made by the Bureau of Investigation of the Comptroller’s office, members of the International Union of Operating Engineers of Local No. 14 and 14-A, and receive the union rate of wage. It is said that the unions themselves often differentiate in regard to wage scales of men employed for similar work, but in different fields- where there is variation between the steadiness of work which can be obtained in the respective fields and perhaps other differences. Evidently where such differentiation is made by unions in trades and occupations where the union rates constitute the prevailing rate the Comptroller, in determining the prevailing rates of pay which must be applied in accordance with the statute, may, at times must, recognize that difference in the field in which work is performed— the nature of the activities of the employer — divides workers performing similar work into different trades and occupations within the meaning of the statute.

We have not overlooked that there is only one union rate for motor grader operators, but all the members of the union work in the same field and employment in that field is seldom steady. We point out only that union rates for similar work do vary at times in different fields of activities and at least in such cases the prevailing rate of pay in one field may furnish no reasonable basis for determination of the wages to which persons doing similar work in a different field are entitled under the statute. Then the term trade or occupation as used in the statute must be given a narrower construction than it might have in other context.

The Comptroller erred, as we have said, in holding that under the statute the prevailing rate of pay of motor grader operators in private employ is not comparable with the wages of operators in city employ because of the difference in respect to permanency and continuity of employment and other benefits arising from employment by the city. Difference “ in respect to permanency and continuity of employment ” is we repeat irrelevant where employment is in the same trade and occupation, but where work in one field is steady and work in another field intermittent or seasonal or occasional and men performing the same kind of work in one field cannot at will obtain work in the other field and where real differences in conditions of employment and in the scope of activities in the two fields is reflected in different wage scales, then it may become a question of fact whether persons employed to do similar work but in different fields are in fact engaged in the same trade or occupation.”

There is suggestion in the evidence and survey that city employees alone are engaged in road maintenance including snow removal, but that is a matter which received little attention. There may be sufficient in the record to justify a finding that the thirty-seven motor grader operators in private employ are engaged in a different trade or occupation from those in city employ, but even if the Comptroller’s dismissal of the claims of the petitioners for lack of any evidence ” could be construed as containing an implied finding of such fact, the Appellate Division’s reversal would still be justified for even then the determination of the Comptroller would not be based upon full investigation and consideration of the decisive questions.

The order of the Appellate Division should be modified to provide that the matter be remitted to the Comptroller for a new determination in accordance with these rules, and as so modified affirmed, without costs, and the first question certified should be answered in the affirmative. We do not answer the second question because the petitioners have taken no appeal and the question is not decisive of the appeal taken by the city.

Loughran, Finch, Rippey, Lewis, Conway and Desmond, JJ., concur.

Ordered accordingly.


author: Loughban, J. Finch, J.

text:
    The People of the State of New York, Respondent, v. Jack N. Rubin, Appellant.
    Argued March 13, 1941;
    decided June 12, 1941.

      I. Maurice Wormser, George D. Zahm, Frederick J. Sullivan and William Roth for appellant.
    The due administration of justice requires a reversal, to the end that defendant may have the fair and impartial trial which the law accords him. (People v. Wolf, 183 N. Y. 464; People v. Becker, 210 N. Y. 274; People v. Montana, 252 App. Div. 109; People v. Velleman, 247 App. Div. 172; People v. Kilroe, 201 App. Div. 549; People v. Herman, 255 App. Div. 314; People v. Viscio, 241 App. Div. 499; People v. Purtell, 243 N. Y. 273; United States v. Minuse, 114 Fed. Rep. [2d] 36; People v. Stiglin, 238 App. Div. 407.) The admission in evidence of the mail cards was error because no sufficient foundation was laid to warrant their introduction into evidence, and because the witness had no personal knowledge of the entries nor even any knowledge of the various handwritings, and because he was under no duty with regard to them. (People v. Reese, 258 N. Y. 89; People v. Sugarman, 248 N. Y. 255; People v. Bromwich, 200 N. Y. 385; People v. Stilwell, 244 N. Y. 196; People v. Burgess, 244 N. Y. 472; People v. Semenza, 221 App. Div. 79; People v. Lebauer, 243 N. Y. 589; Johnson v. Lutz, 253 N. Y. 124; People v. Robinson, 273 N. Y. 438; Matter of Roge v. Valentina, 280 N. Y. 268.)

      Thomas E. Dewey, District Attorney (Whitman Knapp and Stanley B. Fuld of counsel), for respondent.
    The mail records were properly admitted. (People v. Robinson, 273 N. Y. 438; People v. Reese, 258 N. Y. 89; People v. Bromwich, 200 N. Y. 385; United States v. Becker, 62 Fed. Rep. [2d] 1007; Robilio v. United States, 291 Fed. Rep. 975; 263 U. S. 716; State v. Wagner, 311 Mo. 391; Commonwealth v. Bardolph, 123 Pa. Sup. 34; State v. Cassill, 70 Mont. 433; State v. Larue, 98 W. Va. 677; People v. Bertlini, 218 N. Y. 584; Johnson v. Lutz, 253 N. Y. 124; People v. Kohlmeyer, 284 N. Y. 366; DeWitt v. United States, 291 Fed. Rep. 995; 263 U. S. 714.)
   Loughban, J.

The defendant was convicted of the offense of criminally receiving stolen property. (Penal Law> § 1308.) On his appeal to the Appellate Division the conviction was affirmed in the professed exercise by the court of its duty to give judgment without regard to technical errors not affecting substantial rights. (Code Crim. Proc. § 542.) By permission of a judge of this court, the defendant has now brought the case here.

(1) As the District Attorney says in his brief, the chief witness against the defendant was one Morris Haberman, “ a self-confessed and many times convicted thief.” This witness, we are there told, “ determined to speak the truth and testify on behalf of the People * * * only after

having been convicted of robbery in the first degree, upon which he received the mandatory sentence of thirty to sixty years.” Whether there had been a close fellowship between Haberman and the defendant was an important issue upon which the testimony of either flatly contradicted that of the other.

In its direct case the prosecution offered a writing or record that had been made at the Riker’s Island Penitentiary at a time when Haberman was incarcerated in that institution. Across the top of this document runs the headline: Name Haberman Morris No. 64039 Location 3.” The space below is divided into three vertically ruled parallel columns. Above the left-hand column is the printed word “ OUT.” Above the right-hand column is the printed word “ IN.” ■ The center column comprises a sequence of handwritten names and addresses. Among these the name and business address of the defendant are indicated in this manner: “ Mr Jack Rubin 54 W 47 St N Y C ” Alongside that phrase the symbol “ 6/23 ” appears in the left-hand column. The opposite counterpart of the right-hand column exhibits fourteen similar combinations of Arabic numerals.

This cryptic record was produced by a witness who was employed at the penitentiary as a clerk. The inscriptions thereon were characterized by him as the entries of mail that comes in and goes out, either mail addressed to prisoners or mail sent out by prisoners.” None of these entries had been made by the witness. He testified, however, that a rule of the penitentiary required them to be made at the time the mail comes in and at the time the mail goes out.” (See Civ. Prac. Act, § 374-a.)

Over objection and exception by the defendant, the writing produced by the witness was without more received in evidence and thereupon the witness was allowed to testify that as appears on that record ” there were fourteen letters that were sent to Haberman from Rubin, and one that was sent out to Rubin.” In our judgment, this ruling should not be sustained.

The defendant denied that he had any communication with Haberman while Haberman was confined in the penitentiary at Riker’s Island. There is no testimony as to how the phrase, “ Mr Jack Rubin 54 W 47 St N Y C ” came to be entered upon the record in question. In answer to the defendant’s contention that an inadmissible hearsay use was made of the entries, the District Attorney proposes that they contain nothing but the visual observations of employees of the penitentiary.” (Cf. Johnson v. Lutz, 253 N. Y. 124, and People v. Kohlmeyer, 284 N. Y. 366.)

But even in that view the entries are at most an assertion that Haberman at the penitentiary got communications upon which the name and business address of the defendant appeared in some form at one place or another. Such an assertion was no evidence against the defendant except upon the convenient assumption that in the absence of inherent improbability, or credible proof to a contrary effect, the appearance of the same name at all times designates a given person. (See 2 Chamberlayne on The Law of Evidence, § 1187.) While an assumption of that kind is sometimes made in certain classes of civil cases (15 Am. & Eng. Ency. of Law [2d ed.], pp. 918-924; 9 Wig-more on Evidence [3d ed.], ,§ 2529), we think the jury should not here have been permitted so to hypothesize for the purpose of the defendant’s conviction of the crime which Haber-man sought to fasten upon him. (See People v. Reese, 258 N. Y. 89, 96; People v. Sellinger, 265 N. Y. 149.)

(2) For reasons that were material to his defense, the defendant sought to show to the jury that on one occasion he had not been at his place of business in the early evening of a certain day. Harry Marrow occupied space there as a tenant of the defendant. As a witness for the defense, Marrow told the jury that over a period which included the occasion in question he was working in his quarters in the defendant’s premises between six and eight o’clock every evening and that during that time he did not see any one there. As soon as the direct examination of this witness had been concluded, he was examined in this way: The Court: What would you be doing when you were there between six and eight? The Witness: You see, I am a jeweller repairer, I have got a lot of work that is not finished * * *. By the Court: Q. You are working? A. Working, yes. * * * Q. Fixing jewelry? A. Yes, so I work until eight o’clock. Q. You are not a traffic policeman in there, are you; you are not directing traffic? * * * The Witness: No, it takes time.”

A brother of the defendant was another witness for the defense. He gave testimony that at his behest a relative of his (who at the time was a Deputy Attorney-General) once sent to the defendant’s place of business two detectives who were not too kind ” in their treatment there of persons who had attempted to extort money from the defendant. This testimony was material to the defense. At its conclusion, the trial judge put to the witness this query: So you have an arrangement whereby anybody you don’t like you have the Attorney General send policemen to beat them up; is that right? ” No answer was made by the witness, though the objection of the defendant’s counsel was overruled.

Against these matters, among others, the defendant now protests. It may be that some of his exceptions thereto are in themselves sufficient to warrant independent consideration. (Cf. People v. Wood, 126 N. Y. 249, 269; People v. Cummins, 209 N. Y. 283; People v. Pindar, 210 N. Y. 191.) But we need not decide that point, because in no event would we feel safe in supposing that the error first discussed above was a technical one not affecting the substantial rights of the defendant.

The judgment of the Appellate Division and that of the Court of General Sessions of the County of New York should be reversed and a new trial ordered.

Finch, J.

(dissenting). The court is urged upon this appeal to reverse the conviction of the defendant upon two grounds, (1) that the trial court erred in the admission of certain official records from the Riker’s Island Penitentiary, and (2) that questions asked by the trial justice of some of defendant’s witnesses were prejudicial to the defendant. It is submitted that these grounds are not of sufficient substance to compel a reversal in the case at bar.

The defendant was convicted by a jury after a trial lasting nine days, of having criminally received stolen property (Penal Law, § 1308) valued at upwards of $225,000 over a period of three years. The record amply sustains the unanimous finding of the jury that this defendant is guilty of the crimes for which he stands convicted and the defendant does not suggest upon this appeal that the verdict as to any one of the five counts for which he was convicted is insufficiently supported by legal proof.

In spite of the evidence of guilt in this record, the finding of the jury and the unanimous affirmance of the conviction by the Appellate Division, we are asked to set aside this conviction. Since no question of fact survives in this court, such reversal by this court must be on the ground that the defendant’s rights were affected substantially by the alleged errors.

The official records from Riker’s Island Penitentiary were admitted in evidence for the purpose of showing that there had been a close relationship between the defendant ■and the witness Haberman. The only objection to such admission was that a sufficient foundation had not been laid pursuant to the provisions of section 374-a of the Civil Practice Act. This objection was overruled by the trial court and a majority of the court has found no error in the admission of these records upon this ground.

Upon this appeal the defendant contends that an inadmissible hearsay use was made of these records since an official from Riker’s Island Penitentiary was allowed to testify from them that fourteen letters were sent to Haberman from Rubin and]one from Haberman to Rubin for the period during which Haberman was incarcerated in the penitentiary. (Cf. Johnson v. Lutz, 253 N. Y. 124,127, and People v. Kohlmeyer, 284 N. Y. 366.) On the other hand, the People urge that these records contain nothing but the visual observations of employees of the penitentiary.” In this view of the entries they are at most an assertion that Haberman received communications upon which the name and address of the defendant appeared in some form.

Assuming that the admission of these records was error, we do not see how such error can be substantial in this case. The factual accuracy of the records themselves has never been challenged, the defendant having contented himself with his own denial that he communicated with Haberman while he was in prison. On the question of whether or not any letters from defendant were received by Haberman, both Haberman and his wife testified that Haberman received such letters while he was in prison. But more important on the general question of the association between defendant and Haberman, is that defendant did not deny such association and specifically admitted that he and Haberman were kids together;” that they used to “ shoot crap in the street;” that he had “ spent my life with him * * * just like any other boy;” that the defendant had sought out the company_of Haberman and his wife; that he had gone out with Mrs. Haberman while her husband was in the Tombs; and that he had advanced money for Haberman’s legal fees and had helped Haberman’s wife arrange bail for him. In view of such overwhelming direct evidence proving the same hypothesis, it is submitted that the disputed admission of the official records from the penitentiary becomes a mere technical error which does not affect the substantial rights of the parties.

By the enactment of section 542 of the Code of Criminal Procedure, the Legislature has expressly commanded that “ after hearing the appeal, the court must give judgment, without regard to technical errors or defects or to exceptions which do not affect the substantial rights of the parties.” It is submitted that the case at bar is precisely ,,the type of case which the Legislature must have had in mind when it enacted that section. Here there is present a conviction supported by the overwhelming weight of evidence, and in which it is alleged that the 952-page record contains an error upon the admission of evidence to prove a contention which was amply proved by other evidence contained in the record. In such a case we think that section 542 should in any event be applied and the conviction upheld.

The contention that the defendant was not accorded a fair trial would seem to be an afterthought raised by the defendant for purposes of appeal since only once during a trial lasting nearly two weeks did defendant’s experienced trial counsel move that a juror be withdrawn and then such motion was withdrawn immediately. Nor was it suggested in defendant’s motion to set aside the verdict and in arrest of judgment that the defendant’s rights had been prejudiced by any improper conduct on the part of the trial justice. As was pointed out in the case of People v. Cummins (209 N. Y. 283, 292), if the trial had been unfair, that fact would have impressed itself upon the mind of the counsel for the defendant, who participated in it from beginning to end; * * Thus here where the defendant’s experienced trial counsel has not considered the errors committed by the trial justice sufficiently material to warrant a motion to withdraw a juror, this error of the trial justice would not appear to have substantially prejudiced defendant’s rights.

Counsel for the defense urges that essentially the case presented by the District Attorney rests upon the testimony of professional thieves and that the chief witness against the defendant was one Morris Haberman who admitted to numerous crimes and who at the time of the trial was under sentence of from thirty to sixty years for the crime of robbery in the first degree. It is fundamental that such facts are relevant only as to the weight to be given to the testimony of such witnesses (3 Wigmore on Evidence [3d ed.], § 876) and that before the jury such facts merely present a question of credibility for determination by the jury. In a prosecution for receiving stolen property, as was demonstrated by the case at bar, the witnesses who are best qualified to testify are those who have delivered such property to the defendant. The Legislature has recognized this fact and expressly directed that such witnesses shall not be deemed accomplices. (Penal Law, § 1308-a.)

It follows that the conviction in the case at bar should be affirmed.

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

Judgments reversed, etc.


author: Finch, J.

text:
    The People of the State of New York, Appellant, v. Swift and Company, Respondent.

      Argued April 23, 1941;
    decided June 12, 1941.

      William C. Chanler, Corporation Counsel (Stanley Buchsbaum, Paxton Blair and Fredlscol of counsel), for appellant.
    A conviction for violation of section 163 of the Sanitary Code does not require proof or a finding of guilty intent. (Verona Central Cheese Co. v. Murtaugh, 50 N. Y. 314; People v. Kibler, 106 N. Y. 321; People v. Bowen, 182 N. Y. 1; People v. Greenberg, 134 App. Div. 599; 28 A. L. R. 1385; 26 C. J. tit. “ Food,” p. 765; 11 R. C. L. tit. “ Food,” p. 1129; United States v. 13 Crates of Frozen Eggs, 208 Fed. Rep. 950; Hobbs v. Winchester Corp., [1910] 2 K. B. 471.) The defendant held, kept or stored unwholesome chickens for sale. (People v. Williams, Inc., 172 App. Div. 68; People v. Greenberg, 134 App. Div. 599; People v. Friedman, 138 App. Div. 29; 200 N. Y. 591; People v. Kramer Markets, Inc., 254 App. Div. 827.)

      Albert L. Stark and Lewis A. Ackley for respondent.
    The People failed to establish that the defendant’s possession of the unwholesome food constituted a violation of section 163 of the Sanitary Code. (People v. Timmerman, 79 App. Div. 565; 179 N. Y. 550; People v. Williams, Inc., 172 App. Div. 68; People v. Woolworth, 246 App. Div. 838; 250 App. Div. 864; People [Levinson] v. Waldorf Systems, Inc., 257 App. Div. 626; People v. Wallace & Co., 282 N. Y. 417; People [Johnson] v. Capone Co., 254 App. Div. 235.) Any presumption of intent to have, keep or sell arising from the possession of impure food was repelled by defendant’s proof. (People v. Wallace & Co., 282 N. Y. 417; People v. Woolworth Co., 246 App. Div. 838; 250 App. Div. 864; People v. Timmerman, 79 App. Div. 565; People [Levinson] v. Waldorf Systems, Inc., 257 App. Div. 626.)
   Finch, J.

This is an appeal from an order of the Appellate Division reversing a judgment of conviction for violation of the Sanitary Code (§ 163), dismissing the information and remitting the fine, one justice dissenting from the dismissal of the information and voting for a new trial.

The question presented is whether a judgment of conviction for the possession for sale of decomposed and unhealthy food kept in a storeroom from which salesmen replenish stock for sale in the city of New York may be reversed solely on the ground that the defendant has acted in good faith.

The facts, in so far as necessary to present the issues, are briefly as follows:

The defendant maintains a place of business in a building consisting of a basement and three upper floors at Fort Green place, Brooklyn. The main floor is used in the sale of poultry and meats. The basement is divided into two sections. In one, described as a cooler or freezer, poultry is stored to be held in readiness to be taken to the sales floor and sold.

Health department inspectors made a routine visit to the premises on November 15, 1939. After finding the food on the main floor, the sales room, to be in satisfactory condition, they proceeded to the basement where poultry was kept awaiting removal to the selling rooms. There they found at least twenty-two pieces of poultry, weighing approximately 120 pounds in all, which were covered extensively with- white, green and black mold. Black mold is the last stage of mold, which progressively becomes white, then green and finally black. Where such black mold is encountered, the article is absolutely unhealthful for human consumption. The state of decomposition of the condemned poultry is not in controversy, as counsel for the defendant conceded that the condemned poultry was unwholesome.

The defendant contends upon this appeal that it established at the trial that it did not sell or offer for sale or in any way intend to sell its poultry without subjecting it to three different inspections and if, during the course of any inspection, any poultry was found to be unsound, it was destroyed. The poultry in question had not undergone all of the inspections which defendant conducts before selling or offering for sale. The witnesses for defendant testified that the poultry was inspected when it was delivered to the defendant and again when it was sent from the basement cooling room to the main floor for sale. Both of these inspections are merely on a sampling basis, that being the custom of the trade. Three to five boxes are examined out of a lot which might range from 25 to 400 boxes. They consist merely of removing the top cover of the box and looking at the breast of the chicken. Only if the breast reveals a condition which arouses suspicion does the examination go beyond this. Mold on the backs or sides of the poultry would escape detection. The defendant explained that the unwholesome condition of the poultry condemned escaped its attention because the mold was on the so-called • hips of the chickens.

The third inspection is made by the customer at the time that he buys the poultry. This inspection involves the opening of all boxes, but at times — although defendant insists that such occasions are rare — this final examination is omitted and apparently depends entirely upon the wishes of the customer when that customer is present, rather than the protection of the public.

The trial court found the defendant guilty, pointing out that the inspections employed were inadequate to reveal unwholesomeness. The Appellate Division reversed upon the ground that while it was true that the poultry was intended to be sold, it was also equally true that it was not to be sold if it had been found by defendant or the customer to be unwholesome. Since by this standard the defendant was held to have acted in good faith, and that defense was considered valid, the conviction was reversed as a matter of law.

For the protection of the health of the people of the city, the Sanitary Code provides, among other things, that no poultry which is not healthy, wholesome or safe for human food, or that died by disease or accident, shall be brought into the city or held, kept, offered for sale, or sold as food. (Sanitary Code, § 163.) Other provisions provide that by the mere possession of food by a dealer therein such food shall prima facie be deemed to be held, kept, offered for sale or sold as food. (§ 138.) Also that the presence of food * * * in any part of the establishment shall be deemed prima facie evidence of its use for human food.” (§ 148, reg. 23.) It is also provided that food which has become unfit for human consumption, shall be kept separate * * * from other foodstuffs which are held, kept, and offered for sale, * * * marked ' Condemned and removed daily.” (§ 148, reg. 27.)

In earlier times, dealing in unwholesome food was treated to a large extent like other crimes, and proof of guilty knowledge was essential to a conviction. (Verona Central Cheese Co. v. Murtaugh, 50 N. Y. 314.) Not long thereafter it was pointed out that “ It is notorious that the adulteration of food products has grown to proportions so enormous as to menace the health and safety of the people * * *. Such an emergency may justify legislation which throws upon the seller the entire responsibility of the purity and soundness of what he sells and compels him to know and to be certain.” (People v. Kibler, 106 N. Y. 321, 324.) Thus the courts have recognized that experience has demonstrated through the years that repressive measures which depend for their efficiency upon proof of guilty knowledge on the part of the dealer and of his intent to sell unhealthy food are of little practical use. Thereafter it was repeatedly held that violations of food laws are not excused by lack of guilty intent or by mere good faith on the part of the violator. (People v. Bowen, 182 N. Y. 1.) This rule is not confined to New York and is of almost universal application. (26 C. J. tit. Food,” p. 765; 11 Ruling Case Law, tit. “ Food,” p. 1129.) The effect of these cases has been to throw upon the the seller of foodstuffs the burden of selling unhealthy food at his peril. In Hobbs v. Winchester Corporation ([1910] 2 K. B. 471,481) it was said: “ Who is to take the risk of the meat being unsound, the butcher or the public? In my opinion the Legislature intended that the butcher should take the risk and that the public should be protected, irrespective of the guilt or innocence of the butcher. The knowledge or possible means of knowledge of the butcher is not a matter which affects the public; it is the unsound meat which poisons them; and I think that the Legislature intended that the butcher should sell unsound meat at his peril.”

Legislation in this State has gone further than these cases and provided that the mere “ presence of food * * * in any part of the establishment shall be deemed prima facie evidence of its use for human food.” (§ 148, reg. 23.) It follows that unless this presumption is overcomejthis conviction must be upheld.

The defendant relies upon People v. Wallace & Co. (282 N. Y. 417) to sustain its contention that where inspections are to be made in good faith between the time of the possession and the time of sale the statute has not been violated. That authority is not applicable upon the facts in the case at bar. In that case an inspector of the Health Department of the city found in the possession of the defendant, a candy manufacturer, twelve cans that were swollen and bulging and contained grapes that had become unwholesome. Those cans had been in the storeroom for at least one month. Witnesses for the defendant testified that these grapes were purchased to be used in the manufacture of candy and not for sale in their present form. The magistrate in the Wallace case accepting that testimony convicted the defendant on the theory that mere possession of the unwholesome food required a conviction, but found that the defendant would not have used the grapes, either in their present form or in any other form. This court held that where the defendant submits proof which causes the triers of fact to find that the food held in possession would not be used the presumption that the food is held for sale has been rebutted and the statute does not apply.

In the case at bar, however, the method of inspection employed by the defendant would not necessarily have revealed the unhealthy condition of the poultry. In such case the statute is violated by the mere holding for sale of the food upon the premises even though it might be that a buyer would inspect before buying or that the poultry would be reinspected by the defendant. We have here, therefore, a clear violation of the Sanitary Code (§§ 163, 138, 148, reg. 27).

The danger to human life and health from unwholesome food is so great that the courts generally have treated food differently from most other products. It has been placed in the same category as drugs, poisons and other instrumentalities which, if they are negligently dealt with, are ordinarily certain to affect seriously the public health and safety. The good intentions of the defendant would matter very little to consumers who might consume this poultry. Food laws are designed primarily, not for the punishment of the dealer, but for the protection of the consumer. In this field of law, the obligation to beware is on the seller rather than the buyer. Lack of proof of guilty intent does not satisfy that obligation.

It follows that the order of the Appellate Division should be reversed and the judgment of the Magistrate’s Court sitting as a Court of Special Sessions of the City of New York, affirmed.

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

Ordered accordingly.


text:
    Frances Kyff, Appellant, v. Herman Kyff, Respondent.
    Submitted April 25, 1941;
    decided June 12, 1941.

      Jess G. Schiffmann and Louis Fabricant for appellant.
    A separation agreement cannot prevent the court from awarding alimony where the provisions for support contained in such agreement are inadequate at the time of the application for relief. (Daggett v. Daggett, 5 Paige Ch. 509; Collins v. Collins, 80 N. Y. 1; Harding v. Harding, 203 App. Div. 721; 236 N. Y. 514; Veeck v. Veeck, 242 N. Y. 558; Tirrell v. Tirrell, 232 N. Y. 224; Heaney v. Heaney, 255 App. Div. 879; 280 N. Y. 638; Goldman v. Goldman, 282 N. Y. 296.)

      Albert A. Verrilli for respondent.
    The separation agreement is valid. (Wilson v. Hinman, 182 N. Y. 408; Helvering v. Leonard, 310 U. S. 80.) The judgment as modified by the Appellate Division is proper. (Severance v. Severance, 260 N. Y. 432; Goldman v. Goldman, 282 N. Y. 296; Winter v. Winter, 191 N. Y. 462; Braunworth v. Braunworth, 260 App. Div. 113; Greenfield v. Greenfield, 161 App. Div. 573; Goldfish v. Goldfish, 193 App. Div. 686; 230 N. Y. 606; Levy v. Levy, 149 App. Div. 561; Benesch v. Benesch, 182 App. Div. 221; Karlin v. Karlin, 280 N. Y. 32; Cain v. Cain, 188 App. Div. 780; Johnson v. Johnson, 206 N. Y. 561.)
   Finch, J.

This is an action for divorce brought by the wife. The judgment of the Supreme Court in her favor was modified by the Appellate Division by striking out the provision for support on the ground that the award of alimony was barred by a separation agreement between the parties. Upon this appeal the sole question is whether the existence of the separation agreement should have precluded an award of alimony under the following circumstances.^

In 1930, during the pendency of a separation action, the parties entered into an agreement whereby the wife released certain property interests and also gave to the husband the sole custody of the three children of the marriage. By paragraph Third ” the husband agreed to pay the wife the lump sum of $3,000 and by paragraph Eighth ” it was provided: “ That the wife agrees to accept said payment hereinbefore provided, in full satisfaction for all claim for support and maintenance of every kind.” The money was paid by the husband as agreed, and the separation action was abandoned. Ten years elapsed and the wife commenced the present action for divorce. At the trial it was established without contradiction that the wife had expended the $3,000 in the course of the ten years, and that her sole source of . income consisted of a salary of ten dollars per week which she earned as a waitress. It was also shown that the husband’s income was approximately fifty dollars a week. Upon these facts the Supreme Court required the husband to contribute seven dollars per week to the wife. The position taken by the husband is not that the allowance is improper in amount but that under the terms of the separation agreement of ten years ago, he is forever relieved of the duty of support, and that it does not appear that the $3,000 paid for the release “ was not a generous settlement and one which fully compensated the plaintiff.” (260 App. Div. 472, 474.)

The question presented, therefore, is whether the release executed by the wife as a part of the separation agreement with her husband bars the court from exercising its discretion to award alimony.

The court is directed by statute to make such provision “ for the support of [the wife], as justice requires * * * ” when the judgment of divorce is granted in favor of the wife. (Civ. Prac. Act, §§ 1155, 1170.) And further, at any time after final judgment * * * [the court] may annul, vary or modify such a direction.” Not only does the duty of the husband to support the wife continue after the marriage has been dissolved at the behest of the wife, but the amount which he is compelled to contribute to her support may be varied by the court from time to time “ as justice requires.” The husband contends that the court may not exercise these powers because ten years ago he paid the wife $3,000 in order to be released forever after of any duty to support her. By express prohibition of law a husband and wife may not contract to exempt the husband from his continuing duty of support. Although a husband and wife may in general freely contract with one another as do strangers, under the laws of this State, “ a husband and wife can not contract * * * to relieve the husband from his liability to support his wife.” (Domestic Relations Law [Cons. Laws, ch. 14], § 51.) In other words, a wife may not voluntarily release her husband from bis duty to support her and neither may the husband for a consideration purchase exemption from that duty. (Goldman v. Goldman, 282 N. Y. 296, 302.) Nonetheless, where the husband and wife agree upon the measure of the support which they deem proper for the benefit of the wife, then the court will not compel the husband to support the wife in a greater sum (Goldman v. Goldman, supra, at pp. 300, 301; Galusha v. Galusha, 138 N. Y. 272), unless the amount agreed upon is plainly inadequate. (Goldman v. Goldman, supra, at p. 301; Tirrell v. Tirrell, 232 N. Y. 224; Hungerford v. Hungerford, 161 N. Y. 550.)

The record in the case at bar clearly establishes the need of the plaintiff wife and indeed it is uncontradicted by the husband except in so far as he invokes the separation agreement and the release contained therein. We must always have in mind the interest of the State in the marriage to see that the wife and the children shall not be left in the community without adequate support and every agreement between husband and wife must be viewed in the light of this continuing interest of the State.

By way of answer to the application of the wife for some support, the husband offers nothing but the agreement under which he paid $3,000 ten years ago and under which he claims the right to make no further payments regardless of the present need of the wife and the circumstances of the parties. Clearly this is not an agreement whereby the husband and the wife have mutually agreed upon the scale on which the husband shall support the wife. On the contrary, it is an attempt by the husband to purchase exemption from his continuing duty by the terms of an agreement which are expressly forbidden by section 51 of the Domestic Relations Law. There is evidence in the record, not contradicted, sufficient to show the needs of the plaintiff and the ability of the husband to contribute the modest sum which he has been directed to pay. To relieve him of that obligation is to release him from an obligation which is sustained by the authorities.

Since the agreement relied upon constitutes no answer to the present application of the wife and the husband offers no other defense, it follows that the judgment entered upon the order of the Appellate Division should be reversed and that of the Special Term affirmed, with costs in this court and in the Appellate Division.

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

Judgment accordingly.


author: Per Curiam.

text:
    Mary L. Hart et al., Appellants, v. Mary Blabey, Respondent.
    Submitted June 9, 1941;
    decided June 19, 1941.

      Robert G. Blabey for motion.

      John M. Schneider opposed.
   Per Curiam.

The authority of the attorney ceased upon the death of Mary L. Hart before the judgment of the Appellate Division was entered. Notice of appeal in her behalf, served before any personal representative was appointed is futile and until such appointment no order of substitution can be made. The notice of appeal is effective in so far as it named other appellants, but since the obligation of the surety upon the undertaking on appeal names all the plaintiffs as appellants and principals, the respondent may properly question whether it could be enforced when in fact one of the principals named is not a party to the appeal.

Motion granted to the following extent: Appeal dismissed, with costs, and ten dollars costs of motion, unless within fourteen days the appellants serve a new undertaking. Substitution ordered.


author: Lewis, J.

text:
    The People of the State of New York, Appellant, v. American Wool Stock Corporation, Respondent. The People of the State of New York, Appellant, v. B. D. Kaplan & Co., Inc., Respondent.
    Argued May 22, 1941;
    decided July 29, 1941.

      William C. Chanler, Corporation Counsel (Paxton Blair and Fred Iscol of counsel), for appellant.
    The defendants were proved beyond a reasonable doubt to be dealers in rags, in the ordinarily accepted sense of that word. Their conviction should have been sustained. (People v. Tilford, 268 N. Y. 557.) The provision requiring junk dealers to be licensed is constitutional, even when applied to the defendants. (People v. Star Metal Smelting & Refining Co., 274 N. Y. 617; Gundling v. Chicago, 177 U. S. 183; Rosenthal v. New York, 226 U. S. 260; City of St. Louis v. Baskowitz, 273 Mo. 543; Commonwealth v. Hood, 183 Mass. 196; State v. Shapiro, 131 Md. 168; Lewis v. Quinn, 217 Cal. 410.)

      William T. Griffin, Joseph V. McKee, Gilbert Lazerus and Alfonse F. Spiegel for respondents.
    Regulation of the junk business under the police power is justified only where its purpose and effect is to control a business which provides a market for stolen property. (People v. Rosenthal, 197 N. Y. 394; 226 U. S. 260; City of New York v. Vandewater, 113 App. Div. 456; People v. McGuire, 113 App. Div. 631; Matter of Dening v. Cooke, 162 Misc. Rep. 723; Co-operative Junk Co. v. Police Comrs., 38 Cal. App. 676; Commonwealth v. Silverman, 220 Mass. 552; Westside Metal Refining Co. v. Chicago, 140 Ill. App. 599; 239 Ill. 341; Grand Rapids v. Braudy, 105 Mich. 670; City of Duluth v. Bloom, 55 Minn. 97; Marmet v. State, 45 Ohio St. 63.) The business of the defendants does not provide a market for stolen property, and there is, therefore, no warrant in fact for the application of the police power to their business. (City of Chicago v. Northern Paper Stock Co., 337 Ill. 194; Commonwealth v. Silverman, 220 Mass. 552.) Regulation of junk dealers does not extend to dealers whose business is similar to that of defendants. (City of New York v.
      Vandewater, 113 App. Div. 456; Matter of Trosk v. Cohen, 262 N. Y. 430; City of Chicago v. Northern Paper Stock Co., 337 Ill. 194; City of Chicago v. Lowenthal, 242 Ill. 404; Westside Metal Refining Co. v. City of Chicago, 140 Ill. App. 599; 239 Ill. 341.) The statute does not include dealers whose business consists of processing and whose purchases of new or old woolen materials are merely incidental to that business. (People v. Wurlitzer Co., 282 N. Y. 457; People v. Katz, 156 Misc. Rep. 65; City of Chicago v. Iroquois Steel & Iron Co., 284 Ill. App. 561; City of Chicago v. Northern Paper Stock Co., 337 Ill. 194; Westside Metal Refining Co. v. City of Chicago, 140 Ill. App. 599; City of Chicago v. Lowenthal, 242 Ill. 404.)
   Lewis, J.

The business of junk dealers in the city of New York is made the subject of regulation by the Administrative Code [L. 1937, ch. 929], ch. 32, title B, article 18, of which section B32-114.0 provides (p. 1110): “ It shall be unlawful for any person to act as a junk dealer without a license therefor.” The Code also defines a “ junk dealer ” as “Any person engaged in the business of purchasing or selling junk, old rope, old iron, brass, copper, tin, lead, rubber, paper, rags, bagging, slush or empty bottles.” A “ junk shop ” is “ The place of business of a junk dealer.” (§ B32-113.0 ¡p. 1110].)

The defendants were charged with having engaged in business as junk dealers without procuring licenses, in violation of the statute quoted above. They were tried together in Magistrates’ Court and were convicted. Upon appeal to the Court of Special Sessions the judgments of conviction were unanimously reversed, on the law. The present appeal by the People is taken by permission of a judge of this court.

Experience has taught that the various types of property dealt in by a junk dealer are peculiarly susceptible to theft and that the business of junk dealers, which provides a market for stolen property, is of a character which warrants regulation in the exercise of police power. Regulatory statutes enacted to that end have successfully withstood attacks as to their constitutionality. (People v. Rosenthal, 197 N. Y. 394, 400; affd., 226 U. S. 260, 270; People v. Star Metal Smelting & Refining Co., 274 N. Y. 617; Commonwealth v. Hood, 183 Mass. 196, 198, and see Gundling v. Chicago, 177 U. S. 183, 188; People v. Ringe, 197 N. Y. 143, 146, 147.) Believing that the licensing statute here involved is a valid exercise of police power, we pass directly to the question whether it was intended to apply to the type of business conducted by the defendants.

The record does not leave us in doubt as to the sources from which come the waste materials dealt in by the defendants. Of the total quantity of materials purchased by the defendant American Wool Stock Corporation, twenty-five per cent are new wool “ clips ” — small waste pieces from the cutting tables of manufacturers of sweaters, men’s clothes and women’s garments; and seventy-five per cent are “ old ” woolen materials purchased from wholesale junk dealers. Of the materials dealt in by the defendant B. D. Kaplan & Co., Inc., sixty per cent are new wool “ clips ” and forty per cent are “ old ” wool materials acquired from like sources.

The defendants do not collect through their own agents the cast off overcoats, suits and other garments which comprise the old woolen materials in which they deal. These old materials are first a small part of that conglomerate mass of discarded stuff which is collected by licensed junk dealers from apartments, hotels, private homes and other sources and which is sold to licensed junk shops. There the mass is picked over and an assortment is made into metals, rubber, rags, paper and other types of refuse. The rags thus segregated are sold to licensed wholesale rag dealers who in turn separate wool from cotton, linen from silk, etc., until by the processes of segregation and sale, discarded woolen materials reach the wholesale wool dealer, to whom the defendants refer as “ the wool stock man.” It is this wholesale wool dealer — a licensed junk dealer — from whom the defendants buy the “ old ” woolen materials which, as we have seen, comprise the major part of the defendants’ stock in trade. Upon such sales the deliveries to the defendants’ warehouses are in bulk lots, usually-baled.

It thus appears that from the junk dealer, whose collections are made from the hotels and homes of a community or from trash barrels, to the wholesale wool dealer, who sells “ old ” woolen materials to the defendants, each dealer is a licensed junk dealer.

The defendants do not question the wisdom of requiring a license from each junk dealer who handles discarded waste materials until they reach the defendants’ warehouses. Indeed, the defendants approve of such a requirement as a police measure. The defendants also expressly state that it is not the fact that their purchases of waste wool are in large quantities, which places them in a class of business which they claim to be beyond the power of regulation under the licensing statute. The reason for such exemption, it is argued, is the character of their business. It is said, and we agree, that the regulation of the junk business under police power is justified where its purpose and effect is to control a business which provides a market for stolen property. We do not agree, however, with the assertion that the materials in which the defendants deal are of a character which do not provide a market for stolen property and that accordingly the regulation of their businesses is both unnecessary and unreasonable.

The position taken by the defendants suggests the inquiry — what occurs in the transition of old woolen materials from the licensed wholesale wool dealer to the unlicensed defendants? What change, if any, takes place in materials thus delivered to the defendants which serves to exempt the defendants from the enforcement of the same licensing statute with which the wholesale wool dealer is required to comply? We find no evidence in the record which so differentiates vendor and vendee in that instance as to require of the former a license and to exempt the latter therefrom. Indeed the evidence is to the contrary.

There is evidence that when a discarded woolen overcoat, suit, sweater or other garment reaches the licensed wholesale wool dealer, the non-wool lining is usually torn out and it is the remaining woolen garment, stripped of non-wool trimmings, which goes into the bale and is delivered to the defendants.' But it appears from testimony offered by the defendants that after they receive and unbale the materials delivered by the dealer —“ there may be linings that the dealer has missed. We take them out. We take off the buttons. We take off the labels. * * * Then we in turn rebale them.” There is also uncontradicted evidence that enough garments reach the defendants’ warehouses to require each defendant to retain a corps of trimmers who cut up the woolen garments received from the dealers and trim off all non-wool materials.

Thus does the record make it clear that stolen garments, or garments which may form a part of essential proof in the prosecution of crime, may find their way into the defendants’ warehouses as a part of the old woolen materials in which the defendants deal. These garments, whether intact or shorn of linings, may be identified as the subject of 'a theft, or may constitute evidence in the prosecution of a crime. We cannot say from the evidence before us that the business conducted by either defendant is of a character which exempts it from the licensing requirement of the statute here involved.

We also conclude that the word “ rags ” as used in the statutory definition of a junk dealer (Admin. Code, ch. 32, art. 18, § 32-113.0) includes the commodity dealt in by the defendants. In addition to evidence, to which reference has been made, that discarded wool garments comprise a large portion of the defendants’ stock in trade, there is further testimony by the manager of one of the defendant companies as to whether old garments are “ rags.” After describing the work done by his company in cutting he was asked on direct examination: Q. Then what do you do? A. We re-bale them. Q. .What does that mean? A. We put them in a press, either brown, green or blue or mixed, after they have been processed, and we make what we call a new bale of mgs out of them. Q. Rags? A. That is the technical term. Q. Then what happens? A. Then they are shipped to a woolen mill. * * * Q. You just used the word rags * * * Does that word mean old garments in the industry. * * * A. Yes, it does. It means an old garment. That is the technical term that is used. Q. Bags means garments? A. Yes. Q. Doesn’t it mean pieces of material that may have come from old garments which are used for further processing? A. Yes.

“ By the Court: Q. It covers both, cast away garments and also pieces of garments? A. Yes.” (Emphasis supplied.)

This definition of “ rags ” by a witness called by the defendants is an aid in interpreting the two newspaper advertisements, introduced by the People: an advertisement by the defendant Wool Company by which it held itself out as Graders of Old and New Woolen Rags;” the other advertisement was by the defendant Kaplan Company, which described itself as prepared to furnish the trade with “ Class ‘ A ’ Old Worsted Rags.”

We find in the record ample proof that the defendants were engaged in the business of purchasing or selling * * * rags ” within the statutory definition of a junk dealer.

The order of the Appellate Part of the Court of Special Sessions should be reversed and the judgments of the Magistrates’ Court of the City of New York affirmed.

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

Ordered accordingly,