author: Conway, Ch. J. Fuld, J.

text:
    In the Matter of Anna D. Kilgus, Appellant, against Board of Estimate of the City of New York et al., Respondents.
    Argued January 13, 1955;
    decided June 9, 1955.

      Archibald Goldstein, Bernard Rosenberg and Isidore Miller for appellant.
    I. The board of estimate, in making its determination denying petitioner’s application, did so capriciously and arbitrarily in that it failed to consider the testimony submitted to the trial committee and it adopted the findings and recommendations of the trial committee because it felt bound by such findings and recommendations, thereby, in effect, causing petitioner’s application to be determined by the trial committee instead of by the board of estimate, which amounted to an abdication of the board’s office to determine the merits of petitioner’s application by the board. (Matter of Daley v. Board of Estimate of City of N. Y., 267 App. Div. 592; Matter of Weekes v. O’Connell, 304 N. Y. 259; Matter of Elite Dairy Products v. Ten Eyck, 271 N. Y. 488; Matter of Ralph v. Board of Estimate of City of N. Y., 280 App. Div. 942.) II. The report and testimony of the toxicologist, Gettler, should not have been permitted in evidence and should have been stricken therefrom because of failure to identify the liver analyzed by him as the liver of the deceased. (Gardam & Son v. Batterson, 198 N. Y. 175.) III. Gettler’s report and testimony were improperly admitted into evidence as a matter of law. (Darcy v. Presbyterian Hosp., 202 N. Y. 259; Wehle v. United States Mut. Acc. Assn., 153 N. Y. 116; Hassard v. Lehane, 150 App. Div. 685; Beller v. City of New York, 269 App. Div. 642; Gould v. State of New York, 181 Misc. 884; Novitsky v. Knickerbocker Co., 276 Ill. 102; Felska v. John Hancock Mut. Life Ins. Co., 144 Misc. 508.) IY. The accidental death by electrocution of the deceased having been established, and the trial committee having failed to find the deceased intoxicated, there can be no finding of willful contributory negligence resulting in the death of deceased. (Weidy v. Prudential Ins. Co., 256 App. Div. 778; Bolger v. Prudential Ins. Co., 250 App. Div. 122.) Y. The trial committee was justified in rejecting respondents’ contention that decedent was intoxicated. (Trimble v. City of New York, 275 App. Div. 169.)

      Leo A. Larkin, Acting Corporation Counsel (Henry J. Shields and Seymour B. Quel of counsel), for respondents.
    I. Petitioner cannot argue in this proceeding that the members of the board of estimate failed to consider the record herein. That allegation is not pleaded in the petition and the petitioner failed to traverse by reply the allegations of paragraph Twenty-fourth of the answer that the members of the board of estimate carefully examined the entire record prior to the public hearing of the board. (Matter of Hines v. La Guardia, 293 N. Y. 207; Entress v. Sours, 272 App. Div. 861; Matter of Marasco v. Morse, 263 App. Div. 1063, 289 N. Y. 768; Morgan v. United States, 304 U. S. 1; Norris & Hirshberg v. Securities & Exch. Comm., 163 F. 2d 689; Cunard S. S. Co. v. Elting, 97 F. 2d 373; Matter of Weekes v. O’Connell, 304 N. Y. 259; Matter of Miller v. Kling, 291 N. Y. 65; Matter of Humphrey v. State Ins. Fund, 298 N. Y. 327; Matter of Tiernan v. Walsh, 294 N. Y. 299; Matter of Donahue v. Fletcher, 299 N. Y. 227; Matter of Lynch’s Bldrs. Restaurant v. O’Connell, 303 N. Y. 408; Matter of 54 Cafe & Restaurant v. O’Connell, 274 App. Div. 428, 298 N. Y. 883.) II. Petitioner did not establish a prima facie case by showing only that the deceased member died during his tour of duty, presumably from accidental cause. (Cordell v. New York Central & H. R. R. R. Co., 75 N. Y. 330; Riordan v. Ocean S. S. Co., 124 N. Y. 655; Wieland v. Delaware & Hudson Canal Co., 167 N. Y. 19; Perez v. Sandrowitz, 180 N. Y. 397; Matter of McCormack v. National City Bank, 303 N. Y. 5; Hansen v. City of New York, 274 App. Div. 196.) TTT- Petitioner’s objection that Dr. Gettler’s status as toxicologist in the office of the medical examiner disqualified him from giving testimony in a civil proceeding does not find support in authority.
   Conway, Ch. J.

John Kilgus, deceased husband of petitioner, had been employed by the board of transportation of the City of New York as a car maintainer, and was a member of the city’s employees’ retirement system. On July 9, 1946, the decedent was assigned to duty at the subway yards at Tenth Avenue and 211th Street in New York City. His tour was to run from 1:00 a.m. to 9:00 a.m. At about 6:00 a.m., he was found lying against a live third rail in those yards, and died thereafter, as the result of injuries caused by the electricity.

The petitioner widow filed a claim for accidental death benefits pursuant to section B3-33.0 of the Administrative Code of the City of New York, the applicable part of which reads as follows: "‘Death benefits; accidental death benefits.— Upon the accidental death of a member before retirement, provided that evidence shall he submitted to such hoard proving that the death of such member was the natural and proximate result of an accident sustained while a member and while in the performance of duty at some definite time and place and that such death was not the result of wilful negligence on his part, his accumulated deductions shall be paid to his estate, or to such persons as he has nominated or shall nominate by written designation, duly acknowledged and filed with such board. Upon application by or on behalf of the dependents of such deceased member, such board shall grant a pension of one-half of the final compensation of such employee: 1. To his widow, to continue during her widowhood; * * (Emphasis supplied.)

On February 6, 1947, two members of the medical board of the retirement system considered the application to determine whether the death of the decedent was the result of an accident sustained while in the performance of duty without willful negligence on his part. On the basis of a chemical analysis of a portion of a liver, alleged to be that of decedent, made by a toxicologist in the city medical examiner’s office, which analysis, according to him, showed the presence of ethyl alcohol to the extent of 3 plus, the medical board expressed the opinion that the deceased was willfully negligent in imbibing alcohol while participating in a hazardous occupation and recommended that the application for an accidental death pension be denied. The board of estimate, acting on that recommendation, adopted a resolution denying petitioner’s application. Thereafter, at the request of petitioner, the board of estimate reopened its decision and ordered a hearing on the matter before a trial committee consisting of an appointee of the board.

At the hearing the decedent’s foreman testified that he saw Kilgus at about 1:15 a.m. on the morning of July 9th, at which time he sat alongside decedent and conversed with him, while Kilgus ate sandwiches. At that time, he said, the decedent was not intoxicated. Thereafter, at about 4:30 a,m., but one and one-half hours before the discovery of his body, the foreman again saw Kilgus as the decedent was going to obtain some material to use on work to be done on one of the tracks. The foreman stated that decedent was not intoxicated at that time. He further testified, on cross-examination, that at no time did decedent’s breath smell of alcohol.

Extensive medical testimony was adduced — on behalf of respondents, from the. toxicologist, and on behalf of petitioner from a Dr. Leon A. Greenberg, assistant director of the laboratory of applied physiology and the section on alcohol studies at Yale University.

The former testified that he examined a part of the deceased’s liver which he said he had received from the medical examiner, and found alcohol present in the amount of .38%. According to his testimony, the presence of that amount of alcohol in the liver was indicative of a similar percentage in the brain, where a ‘ ‘three plus ” amount results in intoxication. On cross-examination this witness first stated that the authorities on the subject of alcoholism did not disagree with his theories, then later admitted that others did disagree with him. He.had also stated, however, on direct examination that there might be a difference of as much as .14% in the alcohol content of liver and brain. That might have reduced the brain-alcohol content of decedent here to but .24%, which would not have caused staggering.

Dr. Greenberg testified that after alcohol reaches the stomach and intestines, it is absorbed into the blood which passes first through the liver and then on to the other parts of the body including the brain. During the initial period of absorption, Dr. Greenberg said, the percentage of alcohol in the liver may be as much as six times as great as in the brain, and the percentage in the liver will always be greater than in the brain so long as alcohol is being absorbed from the intestines and the stomach. From an examination of the liver it would be impossible, said Dr. Greenberg, to ascertain whether an ounce “or even a quart ” had been consumed — all would depend upon whether the process of absorption by the blood had ended or was still continuing. He also testified that the American Medical Association, as well as the National Safety Council, does not rely upon analyses of the liver, but of the concentration of alcohol in the blood to determine the degree of intoxication.

A sharp conflict in expert testimony was thus presented.

After hearing and analyzing the evidence, the trial committee, consisting of one employee of the board, concluded that “ the death of the deceased was the result of willful negligence on his part in imbibing alcohol in violation of the rules of his employment and while engaged in duties requiring a high degree of care and responsibility, to himself for his own safety and to others for their safety.” Accordingly, it was recommended that the application for accidental death benefits be denied.

A transcript of the minutes of the hearing, as well as the report of the trial committee and other papers, was presented to each member of the board of estimate prior to October 26, 1949. On that day the board met, discussed the application, and denied it.

In a proceeding for accidental death benefits under section B3-33.0 of the Administrative Code, the board of estimate is under a statutory duty, in the first instance, to pass upon the questions of sufficiency and quality of the evidence submitted by the petitioner in support of her claim (see Matter of Daley v. Board of Estimate of City of N. Y., 267 App. Div. 592, 602). It may appoint a trial committee, which here consisted of one nonelected employee of the board, to assist it in its consideration of the problems presented by the application, but may not adopt the report of such a committee without independent consideration of the sufficiency and quality of the evidence adduced before the trial committee since this latter duty is required of the board by statute, i.e., the Administrative Code. The question here presented is whether the board discharged this statutory duty. Petitioner contends that it did not; that three members of the board, possessing a majority of the votes, adopted the recommendation of the trial committee because they felt bound by its findings, making no independent determination of the matter themselves, in the belief and expectation that the courts would make a full review of the case-and remedy any error on their part. In our judgment, petitioner must prevail on this appeal for a reading of the following excerpts from the record discloses that the board underestimated its own power and duty and overestimated the power of the courts upon review, thereby, failing to exercise its duty of rendering independent judgment on the merits of the case:

u* * * Well, in voting I would like to say this, that I am going to vote to support the report of the Trial Committee for the reason that we appointed it and it sat and heard the testimony, but in doing this I am not attempting in any way to prejudice the right of counsel for the deceased to go into the courts and have a correct adjudication of this case. * * * I feel that the counsel will go into the courts and finally adjudicate this. For that reason, at the moment I will vote to sustain the Trial Committee.” (Emphasis supplied.)

íí * * # seems to me here that you have appointed a Trial Committee. The Trial Committee inquired into the factual situation. The claimant, if he goes before a court rather than before this Board, will be given a full and complete opportunity to raise these questions as to whether or not there was the proper admissibility of evidence or anything of that kind, which 1 don’t believe it’s within the province of this Board to do. I think that while it’s true we have a right to review the facts as found by the Trial Committee, that nevertheless where there’s a conflict in the witnesses’ evidence, all before the Committee and not before us, questions of credibility and other things that may have entered into the findings of this Committee, since you will be protected and have a full and complete hearing' before the courts, I think, in the absence of an absolute establishment of overwhelming proof that the Trial Committee was in error, that we ought to sustain the findings of the Trial Committee and let the courts give you your full day to be heard and to prove your case there ” (emphasis supplied).

“ * * * Gentlemen, this Board has appointed a Trial Commission [sic] because this is an unusual case. You have just heard there’s been three days of examination by experts and there’s 121 pages of testimony. The counsel has said that he has the right to go into court. * * * those are the people that we have asked to sit here, this Trial Committee. They have reported to us that this be denied and I move it at this time, sir” (emphasis supplied).

The findings of the trial committee were in no way binding upon the board and the board was mistaken in thinking that, in the absence of an absolute establishment of overwhelming proof ” that the trial committee was in error, its finding should be sustained by the board. As stated earlier, it was the duty of the board, in the first instance, to pass upon the questions of sufficiency and quality of the evidence submitted by the petitioner in support of her claim. The board likewise did not appreciate the full effect that its determination would have on the review available to petitioner in the courts. In the review of determinations of administrative bodies, the power of the courts is narrowly circumscribed (see Swayne & Hoyt, Ltd., v. United States, 300 U. S. 297; Rochester Tel. Corp. v. United States, 307 U. S. 125; Matter of Colgate-Palmolive-Peet Co. v. Joseph, 308 N. Y. 333; Matter of Weekes v. O’Connell, 304 N. Y. 259). “ ' The judicial function is exhausted when there is found to be a rational basis for the conclusions approved by the administrative body ’ ” (Rochester Tel. Corp. v. United States, supra, p. 146). The scope of review by the courts of determinations of administrative bodies is not the same as the review, for example, by the Appellate Division of the judgments of lower courts in jury cases, where the Appellate Division may review the facts as well as the law, and set aside the determination and order a new trial if that court finds it to be against the weight of the evidence or, in a nonjury case, where the Appellate Division has the same power to review the record and decide the questions of fact as the trial court (see Civ. Prac. Act, § 608; Cohen and Karger, Powers of the New York Court of Appeals, § 110, p. 468 et seq.). On the other hand, as phrased in the Civil Practice Act (§ 1296), the only issues as to the findings of fact by administrative bodies which may be reviewed in the courts are: Whether there was any competent proof of all the facts necessary to be proved in order to authorize the making of the determination ” (subd. 6; emphasis added) and “ If there was such proof, whether, upon all the evidence, there was such a preponderance of proof against the existence of any of those facts that the verdict of a jury, affirming the existence thereof, rendered in an action in the supreme court triable by a jury, would be set aside by the court as against the weight of evidence ” (subd. 7; emphasis added).

Because of the strict limitation on the power of courts to review the findings of administrative bodies, we have felt impelled to declare (Matter of Weekes v. O’Connell, supra, p. 266): “ Their findings being subject only to limited judicial review, administrative agencies should ever be mindful of the heavy responsibility thereby imposed, and that responsibility should dictate conscientious and painstaking assessment of the evidence presented.”

The board of estimate had not only a right to review the facts as found by the trial committee, but a statutory duty and responsibility to do so (Matter of Daley v. Board of Estimate of City of N. Y., 267 App. Div. 592, 602, supra) — particularly in view of the very limited review of the findings of fact which the courts have decided they may make. The language of three members of the board, quoted above, shows a misconception of their function as administrative officers in a matter vitally affecting the outcome of the decision. The determination of the board must, therefore, as a matter of' law, as well as in the interest of justice and for the sake of affording the petitioner a full and fair hearing to which she is entitled by statute, be set aside and the matter returned to the board for a proper consideration. That petitioner had a prior hearing before the board of estimate is, of course, immaterial; for having reopened its decision for the consideration of new evidence, the board came under the same statutory duty imposed upon it in the first instance.

We are mindful of the rule that it is “ not the function of the court to probe the mental processes of the * * * [deciding officer] in reaching his conclusions ” (Morgan v. United States, 304 U. S. 1, 18; Matter of Weekes v. O’Connell, supra, p. 265). But, we do not probe ” the mental processes when we hold that statements made by members of the board, having a majority of the votes, clearly reveal that they made no independent appraisal and reached no independent conclusion (cf. Morgan v. United States, 304 U. S. 1, supra). We merely repeat their own statements of their own mental processes in reaching their conclusions.

The order appealed from should be reversed, with costs in this court and in the Appellate Division, and the matter remitted to Special Term for further proceedings in accordance with the opinion herein.

Fuld, J.

(dissenting). By attaching too much importance to certain random remarks made by three important public officers of the City of New York and by according those men too little credit for responsible and conscientious performance of their official duties, a majority of this court is holding that the board of estimate abandoned its duty and denied petitioner’s application without considering the evidence bearing on the matter. The record may not be read to support such a conclusion.

Following the death of John Kilgus, an employee on the city’s subways, his widow, petitioner herein, sought accidental death benefits under the New York City employees’ retiremenl system. It was incumbent upon her to prove that her husband’s death was “ the natural and proximate result ” of an accident sustained by him “ while in the performance of duty ” and that it was “ not the result of wilful negligence on his part ” (Administrative Code of City of New York, § B3-33.0). The application was denied on the ground that Kilgus had been “ imbibing * * * alcohol while assigned to duty, and in violation of the Rules and Regulations of his employment” and that, in consequence, his death was not ‘ ‘ without wilful negligence on his part.”

This is not the first time, it is worthy of note, that the board of estimate denied petitioner’s application after a hearing. After the application had been twice denied by the medical board of the city’s retirement system — which first considers the claim in this sort of case — it came before the board of estimate in February of 1949. The board denied the application at that time — according to the sworn statement of its various members — after having considered all the facts and evidence upon which the Medical Board acted ”. Petitioner then requested, and the board ordered, a hearing before a trial committee, which heard, sifted and analyzed 121 pages of testimony, found that Kilgus had been drunk while at work and that he was guilty of willful negligence, and recommended that the application be denied. The matter then came before the board for a second hearing, the one now under attack.

That Kilgus had partaken of a quantity of alcohol on the fatal night, in violation of regulations, there can be little doubt. In the course of the extensive medical testimony taken at the trial committee’s hearings, Dr. Alexander 0. G-ettler, a toxicologist in the city medical examiner’s office, who is recognized as an outstanding expert, testified that chemical analysis of Kilgus’ body revealed more than 3-plus alcohol, namely, .38%, in his liver, indicating a similar quantity in his brain; and that such analysis not only demonstrated intoxication — with its concomitant “ muscular incoordination and disturbed senses * * * disturbed equilibrium and a staggering gait” — but what was no less important, the imbibing of alcohol by an employee while on his job.

There was contending testimony, on petitioner’s behalf, also by an expert, to the effect that 3-plus alcohol in the liver does not necessarily indicate intoxication since the amount of alcohol in the brain might be less than that in the liver. Other witnesses, who had seen Kilgus that night — though none later than an hour and a half before he was found lying upon the subway’s third rail — testified that when they saw him he did not stagger or speak incoherently or smell of alcohol. Relying on the evidence adduced in her support, petitioner argues here, as she did before the board, that the rules only forbade excessive drinking, and that it was not shown that her husband had imbibed more than moderately. In addition, she objected to the admission of Dr. Gettler’s testimony concerning the amount of alcohol in the deceased’s liver, on the ground that the liver had not been properly identified as Kilgus ’ and that the doctor’s position in the office of the city medical examiner disqualified him from testifying.

As indicated, the essence of petitioner’s case on the merits was presented, and forcefully and fully, with an extensive discussion of the evidence on which it rested, in the oral argument of petitioner’s counsel at the hearing before the board. Moreover, and this is of the utmost significance, each member of the board had been given, some months prior to this hearing, not only a résumé of the testimony before the trial committee, but also the full stenographic transcript of that evidence and all the exhibits. In the verified answer, it is explicitly and categorically asserted — and these statements stand undenied — that the board “ examined petitioner’s application, the proofs, testimony and exhibits, the repbrts of the Medical Board, and the report, findings and recommendation of the Trial Committee ”, and that the board’s determination denying the application “ was [its] considered judgment * * * rendered in good faith after full and careful consideration of the entire record ”.

In the face of this procedure and these sworn recitals, I do not understand, as I above observed, how it may be said, with any basis or warrant, that the board did not consider the evidence or that its members abdicated their decisional duty and simply rubber-stamped the determination previously made by the trial committee.

Once it appears that a transcript of the record containing the testimony and evidence adduced before the hearing officer had been submitted to the administrative agency making the determination, the question whether or not the latter actually considered the evidence and the contentions of the parties is normally not a matter for judicial scrutiny. (See, e.g., Matter of Weekes v. O’Connell, 304 N. Y. 259, 265; Matter of Joyce v. Bruckman, 257 App. Div. 795, 798; United States v. Morgan, 313 U. S. 409, 422; Willapoint Oysters v. Ewing, 174 F. 2d 676, 696, certiorari denied 338 U. S. 860; National Labor Relations Bd. v. Jasper Chair Co., 138 F. 2d 756, certiorari denied 321 U. S. 777; Norris & Hirschberg v. Securities & Exch. Comm., 163 F. 2d 689, 693.) The administrative action has “ a quality resembling that of a judicial proceeding” (Morgan v. United States, 298 U. S. 468, 480), and it is “ not the function of the court to probe the mental processes of the * * * [deciding officer] in reaching his conclusions ” (Morgan v. United States, 304 U. S. 1, 18; see, also, United States v. Morgan, supra, 313 U. S. 409, 422). Accordingly, absent an express admission that the record has not been read (see Matter of Joyce v. Bruckman, supra, 257 App. Div. 795), it must be presumed that the evidence has been studied to the extent necessary to reach an informed and independent judgment. We recently said as much in the Weekes case (304 N. Y. 259, 265):

“we do not inquire into the degree of reliance placed by the members of the Authority upon such internal assistance; the extent to which independent study of the evidence in the record is necessary to the required exercise of informed judgment must be left to the wisdom and practical good sense of the commissioners themselves.”

No extended argument or elaboration is necessary to establish that it would be destructive of administrative responsibility to require the deciding officer to take the stand and testify as to the extent to which he read the record, the degree of reliance he placed upon his associates’ and subordinates’ summaries and reports, and whether or not he read the briefs submitted to him by the parties. Where such an inquiry is sought by a party against whom a quasi-judicial determination has been made, the courts, as a matter of sound policy, will refuse to undertake it. (See United States v. Morgan, supra, 313 U. S. 409, 422; Norris & Hirschberg v. Securities & Exch. Comm., supra, 163 F. 2d 689, 693; National Labor Relations Bd. v. Baldwin Locomotive Works, 128 F. 2d 39.) Similarly, upon judicial review of administrative determinations, “ where the Board declares that it has considered the entire record in the case,’ it cannot be said that the Board did not consider the evidence, and we must accord its decision the presumption of regularity to which it is entitled ”. (National Labor Relations Bd. v. Jasper Chair Co., supra, 138 F. 2d 756, 758, certiorari denied 321 U. S. 777.)

The two cases relied upon by the majority, Matter of Daley v. Board of Estimate of City of N. Y. (267 App. Div. 592), and Matter of Weekes v. O’Connell (supra, 304 N. Y. 259), do not derogate in any way from these principles, nor do they afford any support for what is now being decided. In neither of them did the administrative agency have before it a transcript of the evidence upon which its decision purportedly rested. In Daley, the court stated that “ none of the sworn statements ” supporting petitioner’s claim “ was placed before the Board of Estimate ” (267 App. Div. 592, 597) ; indeed, it was explicitly noted, the medical board “ withheld the facts upon which its recommendation was based ’ ’, setting forth only its conclusions, and the board of estimate simply accepted those conclusions ” (p. 598). And the procedure in the Weekes case was even more egregious: the order of the State Liquor Authority was made one hour after its hearing commissioner had concluded his hearings, was predicated on findings and conclusions identical with those of the subordinate officer and, concededly, was made before any transcript or record of the evidence before him had been furnished the agency. In both cases, therefore, it was indisputable that the body charged with the duty of decision had done nothing but blindly follow the determination of its subordinate officer.

In point of fact, it is our decision in Weelces, resting as it does on the absence of a record before the deciding body, that most strongly points the error of appellant’s position. We there wrote that “ The mere availability of such a record tends to guarantee independent and informed appraisal of the proofs and of the contentions of the parties ” (304 N. Y., at p. 266). And, beyond that, the court was careful to point out that, where a transcript of the evidence taken by the hearing officer was made available, “we do not inquire into the degree of reliance placed * * * upon such internal assistance”, for “the extent to which independent study ” of the record is necessary “ must be left to the wisdom and practical good sense of the commissioners themselves ” (p. 265).

Even if we were to disregard the presumption of regularity, and even if we were to attach no weight to the sworn statement of the members of the board of estimate that they fully considered the record, an examination of what transpired at the hearing serves to afford still stronger basis for sustaining its action. The transcript of that hearing, covering 22 closely typewritten pages, demonstrates that every bit of important evidence was fully presented through the extensive oral arguments of their respective counsel. As must be manifest, where virtually everything embodied in the record before the trial committee has been presented orally to the deciding agency — and that was not the case in either Weehes or Daley — a petitioner may not be heard to claim that the agency failed to make an independent value judgment. (See National Labor Relations Bd. v. Lane Cotton Mills Co., 108 F. 2d 568; cf. Morgan v. United States, supra, 304 U. S. 1, 18; Owens v. Battenfield, 33 F. 2d 753, certiorari denied 280 U. S. 605.)

Consequently, to rule that the board failed in its duty and merely espoused the conclusions of its committee, a court must presume, not only that the members of the board failed to examine the record, but also that they closed their ears to the oral presentation of the evidence and its analysis by counsel. Quite obviously, nothing of the sort occurred. The transcript of the hearing reveals many searching questions posed by the board members,-and the lively discussion by all present clearly evinces considerable familiarity with the case and its issues.

However, I go even further. Even if it were proper for us to “ probe the mental processes ” of the board and its members, the excerpts from the colloquy quoted in the majority opinion would furnish no warrant for the court’s decision.

There is no claim that any one of the three officers, from whose remarks the opinion quotes (pp. 625-626), acknowledged or even intimated that he had failed to consider the transcript of the testimony taken before the trial committee. As a matter of fact, only one of the board members, the President of the Borough of Manhattan, had not examined the record, and he explicitly noted the fact, announcing that, since he would first like to examine it, “I will refrain from voting.” His action is highly enlightening, for it indicates precisely how a responsible official would conduct himself had he not considered the record; and, I suggest, it is exactly what his associates would have done had they been in a position similar to his.

In no sense does the record indicate that any member of the board who voted on the petitioner’s application neglected to exercise an informed and independent judgment. The three quoted excerpts are at best ambiguous and cannot be properly assessed unless considered in the context of the entire hearing. For example, as to the second item (supra, p. 626), it is plain that that official was merely seeking to point out, and correctly, that, insofar as a conflict in the testimony and the credibility of witnesses were concerned, the trial committee’s appraisal and evaluation, entitled as they were to weight, should be preferred, and that, insofar as questions were posed involving the admissibility of evidence, it was better that they be passed upon, as questions of law, by the court.

In any event, insofar as any of the remarks quoted in the majority opinion appear to place undue reliance on the views of the trial committee or on subsequent court review, they merely reflect one side of a thorough and thoughtful interchange of views concerning the nature of the board’s function and the scope of court review. Thus, the transcript reveals that counsel for both parties, as well as the board members, addressed themselves to the board’s duty of independent decision at some length, with an extensive and illuminating analysis of the Daley case. The quotations represent only the more ineptly phrased or ambiguous remarks that were made during the course of discussion, but these were fully counterbalanced by the statements accurately describing the board’s duty, which must have corrected any erroneous impression that might have been created. For instance, the third of the quoted remarks (supra, p. 626) immediately called forth, from the President of the Borough of The Bronx, the observation,

“ I might say on that * * * the fact * * * [that the trial committee has] heard the testimony does not in any way bind. After all, the responsibility to make the decision is with this Board * * *. The selection of and the appointment of a Trial Commission [sic] was a medium through which to lighten the work, to go into the facts, but by no means is it binding ”.

From all the discussion there unquestionably emerged a fair and correct picture of the board’s proper part and function. Under these circumstances, I would say, as did a federal Court of Appeals, “We have neither moral nor legal right to presume that only those who occupy judicial office respect their obligations and perform their official duties honestly, sincerely and conscientiously.” (Willapoint Oysters v. Ewing, supra, 174 F. 2d 676, 696, certiorari denied 338 U. S. 860.)

Beyond all this, the court’s present decision cannot help but have a tendency to discourage the kind of thoughtful inquiry and frank colloquy that here occurred, lest something be said in the course of discussion and debate that may be taken to indicate that the agency misunderstood its function or abdicated its duty.

In sum, then, since the evidence establishing that Kilgus had been intoxicated and that his death was caused by his own willful negligence was exceedingly strong, and since no justification exists for a ruling that the board of estimate rubber-stamped the trial committee’s decision, its determination, unanimously affirmed by the Appellate Division, should be upheld.

Dye, Froessbl and Van Voorhis, JJ., concur with Conway, Ch. J.; Fuld, J., dissents in an opinion in which Desmond, J., concurs; Burke, J., taking no part.

Order reversed, etc.

         Rule 11 (subd. [a]) of the rules of the board of transportation of New York City prohibits employees from carrying or indulging in alcoholic beverages while in the course of their work.

      . Eule 11, subd. (a), of the Rules and Regulations governing employees of the New York City transit system provides that: “Employees must not indulge in intoxicating liquor or be under its influence while on duty or in uniform, nor must they report for or be on duty in an unfit condition. They must not be in possession of or carry intoxicating liquors on the System property at any time. The habitual use of intoxicating liquor or the indulgence therein to excess at any time is prohibited. Alcoholic breath, incoherent speech or staggering is prima facie evidence of being in an unfit condition.”

        . Since there was no reply interposed by petitioner, the law seems settled that the question whether the board sufficiently considered the evidence was never properly raised or posited. (See, e.g., Matter of Hines v. La Guardia, 293 N. Y. 207, 215.) However, I disregard that obstacle — which might well be deemed insuperable — and consider the argument advanced by petitioner that the members of the board of estimate abdicated their duty of decision.


source: Caselaw Access Project

author: Conway, Ch. J. Fuld, J. Burke, J.

license: Public Domain

text:
    In the Matter of Roy Brenner, Appellant, against John F. O’Connell et al., Individually and as Members of the State Liquor Authority, Respondents.
    Argued March 7, 1955;
    decided June 9, 1955.

      Monroe I. Katcher, II, for appellant.
    I. By moving for an order to dismiss the petition upon objections in law, respondents, for the purpose of their motion and this appeal, admit the truth of all of the facts alleged in the petition. (Matter of Nistal v. Hausauer, 308 N. Y. 146; Matter of Schwab v. McElligott, 282 N. Y. 182; Matter of Felice v. Swezey, 278 App. Div. 958.) II. The courts have the power and the duty to make certain that respondents have not acted in excess of the grant of authority given them by statute or in disregard of the criteria or standard prescribed by the Legislature; and where respondents have refused, without legal excuse, to perform a duty imposed by statute, the courts may issue an order in the nature of mandamus to compel the performance of the duty. (Matter of Wilson v. Quinn, 253 App. Div. 403, 277 N. Y. 720; Matter of O’Connor Long Is. Properties Corp. v. Bruckman, 262 App. Div. 1018, 288 N. Y. 23; Matter of Blankfein v. Bruckman, 273 N. Y. 588; Matter of Gifts By Wife, Inc., v. Bruckman, 253 App. Div. 350, 278 N. Y. 499; Fulton Restaurant v. Quinn, 253 App. Div. 740; Reckler v. Quinn, 254 App. Div. 710; Olmstead v. Westchester Co. Alcoholic Beverage Control Bd., 254 App. Div. 63; Matter of Sesselberg v. Schoeneck, 151 Misc. 267; Matter of Ramey v. Bruckman, 178 Misc. 659; Matter of Colaci v. Bruckman, 172 Misc. 383; Matter of Barry v. O’Connell, 303 N. Y. 46.) III. The performance of a statutory duty on the part of an administrative official will be compelled, where no legal excuse exists for the refusal to perform such duty. (Matter of City of New York v. Schoeck, 294 N. Y. 559; Fulton Restaurant v. Quinn, 253 App. Div. 740; Matter of Wilson v. Quinn, 253 App. Div. 403, 277 N. Y. 720; People ex rel. Carlisle v. Board of Super

      visors, 217 N. Y. 424; People ex rel. O’Loughlin v. Prendergast, 219 N. Y. 377; People ex rel. Belden Club v. Hilliard, 28 App. Div. 140; People ex rel. United States Grand Lodge v. Payn, 161 N. Y. 229; Matter of Danaher v. Harris, 236 App. Div. 481; People ex rel. Sayville Steamboat Co. v. Kempner, 49 App. Div. 121.) IV. The Special Term erred in ruling that the provisions of subdivision 2 of section 17 of the Alcoholic Beverage Control Law, in and of themselves and without a lawful, valid administrative rule by respondents, furnish a legal excuse for the failure of the Nassau County Alcoholic Beverage Control Board to receive petitioner’s application and proceed thereon in accordance with the statute. (Fulton Restaurant v. Quinn, 253 App. Div. 740.) V. That portion of rule 17 upon which respondents acted in determining not to permit the Nassau County Alcoholic Beverage Control Board to accept applications for a retail liquor store license to replace the decrease in the number of stores in Nassau County, was invalid by reason of respondents’ employment of “ need ” as the standard for the acceptance of applications by local boards, instead of employing to that end the statutory standard of ‘ ‘ convenience and advantage ’ ’. (Fulton Restaurant v. Quinn, 253 App. Div. 740; Leader-Observer, Inc., v. State Alcoholic Beverage Control Bd., 148 Misc. 757, 241 App. Div. 637; Matter of Sesselberg v. Schoeneck, 151 Misc. 267; Matter of Levine v. O’Connell, 275 App. Div. 217, 300 N. Y. 658; Matter of Barry v. O’Connell, 303 N. Y. 46.) VI. The subsequent amendment of rule 17 by respondents cannot operate to defeat petitioner’s application. (Matter of Brenner v. O’Connell, 282 App. Div. 742.) VII. The procedure, policy or rule adopted by respondents of allowing removals of existing package stores licenses to new locations within the same county instead of permitting the acceptance of applications for new licenses, as contemplated by statute and rule 17, is inconsistent with and out of harmony with the substantive and procedural provisions of the Alcoholic Beverage Control Law and is, therefore, legally invalid. (People v. Woodruff, 32 N. Y. 355; Matter of Hering, 196 N. Y. 218; Moritz v. United Brethrens Church, 269 N. Y. 125; Lawrence Constr. Corp. v. State of New York, 293 N. Y. 634; Matter of Russo v. Valentine, 294 N. Y. 338.)

      Alvm McKinley Sylvester and Robert W. Corcoran for respondents.
    I. The issues now presented for adjudication were completely settled in prior proceedings between the same parties. There are existing orders of a court of competent jurisdiction which have, on two prior occasions, determined the same causé of action between the parties. Those orders were unanimously affirmed by the Appellate Division and no appeal was taken therefrom. (Matter of New York State Labor Relations Bd. v. Holland Laundry, 294 N. Y. 480; Schuylkill Fuel Corp. v. Nieberg Realty Corp., 250 N. Y. 304.) II. The order which petitioner sought below, being in the nature of mandamus, is not available to compel respondents to do an act which is not required by law. (People ex rel. Jones v. Thompson, 147 App. Div. 150; Matter of Hines v. State Bd. of Parole, 181 Misc. 274; Matter of Stewart v. City Court of Binghamton, 183 Misc. 155; Matter of Newbrand v. City of Yonkers, 285 N. Y. 164; Matter of Eiss v. Summers, 205 App. Div. 691, 236 N. Y. 638; Matter of Marburg v. Cole, 286 N. Y. 202; Matter of Pruzan v. Valentine, 282 N. Y. 498.) III. The administrative determination of respondents, now challenged, does not fall within any of the categories of action enumerated in section 121 of the Alcoholic Beverage Control Law, and hence is not subject to judicial review. (Matter of Millman v. O’Connell, 300 N. Y. 539; Matter of Roden v. Bruckman, 258 App. Div. 1076; Matter of Guardian Life Ins. Co. v. Bohlinger, 308 N. Y. 174; Reckler v. Quinn, 255 App. Div. 873, 280 N. Y. 768; Matter of Calvary Presbyt. Church v. State Liq. Auth., 249 App. Div. 288, 275 N. Y. 552; Matter of Marks v. Bruckman, 170 Misc. 709.) TV. Subdivision 2 of section 17 of the Alcoholic Beverage Control Law specifically empowers the Authority to limit in its discretion the number of licenses of each class to be issued within the State and, in connection therewith, to prohibit the acceptance of applications for such class or classes of licenses which have been so limited. The petition herein, stating as it does that respondents refused to permit the local board to accept his application, does not state a cause of action. (Sherman Plastering Corp. v. R. & R. Co., 281 App. Div. 293; Matter of Buck v. Hurd, 281 App. Div. 115; Matter of Wilson v. Quinn, 253 App. Div. 403, 277 N. Y. 720; Matter of Barry v. O’Connell, 303 N. Y. 46.) Y. The Authority’s policy of permitting the removal of existing package liquor stores within the same county is proper and in keeping with the general spirit and intent of the Alcoholic Beverage Control Law.
   Conway, Ch. J.

On November 21, 1952, the appellant submitted a written request to the State Liquor Authority to accept an application for a package liquor store license in the village of Massapequa Park in Nassau County. The basis for this request was the allegation that there had been a decrease of one retail liquor store license in the County of Nassau between 1948 and 1952. Shortly thereafter the Authority notified appellant that his request was being held in abeyance pending the completion of a survey of New York City, Nassau, Suffolk and Westchester Counties.

Before the completion of that survey the appellant commenced an article 78 proceeding on December 12, 1952, seeking an order directing the Authority to permit the local board in Nassau County to accept and consider appellant’s application for a license. The Authority moved to dismiss the petition, and the motion was granted. The Appellate Division affirmed, pointing-out that since the Authority had as then made no final determination on the application of November 21, 1952, the petition of December 12th was premature. (282 App. Div. 742-743.)

On July 20,1953, after the Authority had completed its survey, it notified appellant that his request of November 21, 1952, was denied. Thereafter, on September 9, 1953, the Authority approved the removal of an existing licensee from Bayville to the section of Massapequa Park in which appellant had sought to open his store. On September 16,1953, appellant commenced the present article 78 proceeding- seeking an order directing the Authority to permit the local board in Nassau County to consider his application. That petition was dismissed by Special Term, and the Appellate Division has affirmed unanimously.

Subdivision 2 of section 17 of the Alcoholic Beverage Control Law gives the State Liquor Authority the power, jurisdiction and duty “ To limit in its discretion the number of licenses of each class to be issued within the state or any political subdivision thereof, and in connection therewith to prohibit the acceptance of .applications for such class or classes of licenses which have been so limited ” (emphasis supplied).

Buie 17 of the Buies of the State Liquor Authority — promulgated pursuant to the authorization of subdivision 2 of section 17 (supra) — stated, in part, that: “in the judgment of the Authority and in the exercise of the discretion vested in it by law, it is determined that public convenience and advantage are now adequately served by the number of premises licensed ’’ (snbd. 1).

It was therefore determined by that rule (subd. 2), “ that the number of licenses issued pursuant to section 63 and section 79 of said law [i.e., the Alcoholic Beverage Control Law] be limited to the number in each political subdivision as set forth on the annexed schedule, and that no application for a license under either of said sections be accepted by any local board while the aforesaid number of said licenses shall be in effect ” (1 N. Y. Official Compilation of Codes, Bules & Begulations, p. 757; emphasis supplied).

The schedule of political subdivisions referred to in the last paragraph is a schedule of counties. It is clear, therefore, that the term “ political subdivision ” refers to a “ county ”, and not to a “ village ”, a “ town,” a “ township ” or other political subdivision. That this meaning of that term is the correct one to be applied here is further evidenced by the definition of the “ local board ” under the Alcoholic Beverage Control Law. Section 30 of that law provides for the establishment of an alcoholic beverage control board in every county of the State, and then provides that the boards so constituted “ shall be referred to and designated as local alcoholic beverage control boards ” (emphasis supplied).

The meaning of “ political subdivision ” is important, for if that subdivision were the town, the village or the township, then the transfer of the license from Bayville to Massapequa Park might well involve an increase in the number of licenses in that subdivision. If, on the other hand, the term “ political subdivision ” as it is used in the statute and in the rules herein means “ county ”, then there was no increase in the number of licenses in Nassau County when the retailer was permitted to move from Bayville to Massapequa Park. Not only is it clear from the statutory scheme of “local” county boards, and from the schedule of “political subdivisions ” listed in rule 17, that that term applies to and is intended to mean “ county ”, but that meaning facilitates and is in complete harmony with the policy of the entire Alcoholic Beverage Control Law. That policy is “ to regulate and control the manufacture, sale and distribution within the state of alcoholic beverages for the purpose of fostering and promoting temperance in their consumption and respect for and obedience to law ” (Alcoholic Beverage Control Law, § 2).

To hold that, in a county such as Nassau, with its numerous, overlapping villages, towns and other communities, the term ‘ political subdivision ’ ’ meant other than ‘‘ county ’ ’ would not tend to aid in carrying out the statutory policy, but would result in innumerable administrative difficulties since the number of local boards would be, likewise, innumerable. It is far better to hold that the intended subdivision is the county — for then the local county board can attempt to formulate an over-all plan for the distribution of retail liquor stores which would be exceedingly difficult — if not impossible — to do were the local unit — for example — the village. The desired goal of limiting liquor consumption would likewise be vastly facilitated by considering the county as the “ political subdivision ” rather than some smaller unit. This is particularly true in our State where our network of roads permits persons to travel easily and quickly from town to town, from village to village, and thus makes the unit for effective administrative control of liquor consumption an area larger than the town or village. The Legislature has chosen to make that subdivision the county in setting up local boards, and there is no sound reason for now adopting some other interpretation.

For these reasons we are unable to agree that it was arbitrary and unreasonable for the Authority to have denied the appellant’s request. The survey made by the Authority had only recently revealed that the number of premises licensed to sell liquor in Nassau County was sufficient for the public convenience and advantage in that county. By permitting the transfer of the business of an already-licensed retailer within that county, and by refusing to license new retailers, the number of retailers was kept constant. So far as the appellant is concerned it is immaterial why the retailer was permitted to move from Bay-ville in Nassau County to Massapequa Park in Nassau County, so long as in denying his application the Authority acted within its legal competency. In view of the meaning of the words political subdivision ”, and because the action of the Authority— based upon a recently concluded survey of conditions in that county — does not in fact increase the number of retailers in Nassau County, the action taken by the Authority upon appellant’s request cannot be said to have exceeded the limits of a reasonable exercise of the discretion vested in the Authority by the Alcoholic Beverage Control Law (§ 17, subd. 2), in refusing to increase the number of licensed retail liquor stores in Nassau County by permitting the appellant to open another store in that county. Our decision in Matter of Barry v. O’Connell (303 N. Y. 46) in no way diminishes the accuracy of this conclusion, for the precise issue in that case was whether or not the grounds set forth in the notice of disapproval of the appellant’s application there were legally sufficient to support the determination reached. We held that they were not.

The order should be affirmed, with costs.

Fuld, J.

(concurring). While I agree with the Chief Judge as far as he goes, I must add a further word. Section 121 of the Alcoholic Beverage Control Law lists the only “ actions ” of the State Liquor Authority which are subject to review by the courts. Quite obviously, the Authority’s present determination— which, in effect, denies petitioner’s application that the Authority modify its rule providing for a moratorium (Buies of State Liquor Authority, rule 17) and permit the local board to accept petitioner’s application for a liquor store license — is not included within any of the categories of action enumerated in section 121 and, accordingly, is not subject to judicial review.

Burke, J.

(dissenting). This is the third of a series of proceedings brought for the purpose of securing an order directing the State Liquor Authority to permit the Nassau County Alcoholic Beverage Control Board to consider the appellant’s application for a package liquor store license in the village of Massapequa Park. A motion to dismiss the petition, pursuant to section 1293 of the Civil Practice Act, made by the respondent on the petition and all the papers and orders filed and entered in the two prior proceedings, was granted on the ground that the action of the State Liquor Authority was not subject to review and that, if it was, subdivision 2 of section 17 of the Alcoholic Beverage Control Law vests in the Authority the power to prohibit the acceptance of applications. The Appellate Division unanimously affirmed.

A motion to dismiss a petition for legal objections is equivalent to a demurrer, hence all allegations are deemed to be admitted. Where the petition states any facts upon which the petitioner is entitled prima facie to relief, it may not be dismissed as being legally insufficient. We then have the question presented as to whether this petition states any facts upon which the petitioner is entitled prima facie to relief.

On March 1,1952, the appellant by mail requested the respondent, the State Liquor Authority, to modify its rule 17, which provided for a moratorium on the acceptance of applications for package liquor store licenses. The requested modification, if granted, would have permitted the Nassau County Alcoholic Beverage Control Board to consider the appellant’s application for a package liquor store license in the village of Massapequa Park. The appellant asserted that the increase in the population of Nassau County would justify such a modification. The respondent denied this request on the ground that the petition failed to set forth facts which would justify such a modification. The appellant was also advised that the existence of the moratorium did not preclude the Authority from permitting operators of liquor stores, already licensed in Nassau County, to move to communities such as Massapequa Park if public convenience and advantage would be served thereby.

Thereafter, appellant commenced the first of three article 78 proceedings challenging the Authority’s refusal to modify the moratorium rule. On September 24, 1952, the respondents served their answer and incorporated therein a motion to dismiss the petition. The Special Term sustained the Authority’s motion to dismiss the petition, without prejudice, however, to a renewed application to the respondents on the ground that there had been a decrease in the number of licenses within the county.

On November 21, 1952, the appellant, pursuant to a subdivision of rule 17 permitting the Authority to suspend the moratorium when there was a determination of “ need ”, requested the Authority to accept an application for a liquor license on the ground that there had been a decrease of one retail liquor store in Nassau County. Four days later, on Novemer 25, 1952, the Authority directed that a survey be made of the City of New York and of the Counties of Nassau, Suffolk and Westchester. On the same day, November 25, 1952, the Authority amended the afore-mentioned rule 17 by eliminating the word “ need ” and substituting therefor the words public convenience and advantage ” in the part of rule 17 permitting the Authority to suspend the moratorium. On December 8, 1952, the Authority advised the appellant that such a survey and study was being made and that the Authority was holding your request in abeyance until the completion of the survey

Without waiting for the completion of this survey, the appellant on December 12, 1952, commenced a second proceeding for an order directing the Authority to permit the Nassau County board to accept petitioner’s application for a license to sell liquor in Massapequa Park upon the ground that there had been a decrease of one liquor license in the County of Nassau. The respondents moved to dismiss the petition. The Special Term granted the respondents ’ motion to dismiss on the ground that the petition did not state a cause of action. Both of the foregoing decisions were unanimously affirmed on June 29,1953, by the Appellate Division (282 App. Div. 742). The Appellate Division concluded that the second proceeding was dismissed because it was premature, and so affirmed. Therefore, the dismissal of the previous proceeding on the ground that it was premature does not constitute a bar to the present proceeding. (Moloney v. Nelson, 158 N. Y. 351; Converse v. Sickles, 146 N. Y. 200, 209; Rose v. Hawley, 141 N. Y. 366.)

On July 20, 1953, the Authority, having completed its survey, notified the petitioner that his application had been denied. On September 9, 1953, the Authority approved the removal of an existing license from Bayville, Nassau County, New York, to the block within which the petitioner sought a license and the Bayville licensee has been operating a package liquor store there since October 3, 1953. On September 16, 1953, the petitioner instituted this third proceeding for an order directing the Authority to permit the Nassau board to consider his application.

At the outset, we are confronted with respondents’ contention that all the questions on this appeal were settled in prior proceedings between the same parties. We agree with the Special Term and Appellate Division that the questions presented on this appeal were not settled in the prior proceedings between the same parties.

The remaining issues on this appeal are (1) whether, pursuant to the moratorium resolution (rule 17) adopted by the Liquor Authority, the Liquor Authority lawfully could deny the petitioner’s application for permission to file an application with the local board for a liquor license in Massapequa Park, (2) whether the Authority acted within its powers under the statute in transferring the existing license from Bayville to Massapequa Park and further (3) whether such action was arbitrary or capricious.

The appellant contends that the resolution is invalid. If the board acted upon an invalid resolution, this court can review the refusal to grant the application under section 121 of the Alcoholic Beverage Control Law. (Matter of Wilson v. Quinn, 253 App. Div. 403, affd. 277 N. Y. 720.) There is a clear right of judicial review of a determination of the Liquor Authority-made pursuant to a resolution unauthorized by law.

The appellant charges that the Authority acted on a resolution employing a standard of ‘ ‘ need ’ ’ rather than a standard of public convenience and advantage ” and thus disregarded the standard fixed by the Legislature. (Matter of Barry v. O’Connell, 303 N. Y. 46.) Subdivision 2 of section 17 of the Alcoholic Beverage Control Law must be construed in the light of the language of section 2 of the Alcoholic Beverage Control Law. Here, the moratorium resolution’s reference to section 2 of the Alcoholic Beverage Control Law recognizes the necessity for so doing. Section 2 of the Alcoholic Beverage Control Law establishes a standard of “ public convenience and advantage ”. An examination of the entire resolution, rule 17, discloses that the Authority expressly stated that it had determined that public convenience and advantage ” would be adequately served by the number of premises licensed pursuant to sections 63 and 79 of the Alcoholic Beverage Control Law. Reading the rule in its entirety convinces us that the Authority in its promulgation was governed by a consideration of the proper statutory standard. The order which established the moratorium was predicated upon the proper statutory standard. The word “ need ” did not appear in rule 17 in the portions establishing the moratorium but only in connection with a possible future lifting of the moratorium to the extent of replacing licenses no longer in existence.

In this case the Authority has by rule properly established a moratorium. The Authority, if it does determine to lift the moratorium, must act in accordance with the proper statutory standard. Therefore, the denial of the petitioner’s application without any other intervening acts on the part of the Authority presents no grounds for reversal.

The Authority, however, went beyond the mere denial of the petitioner’s application. The appellant claims that the procedure, policy or rule, adopted by the Authority, of approving removal of existing licenses instead of permitting new licenses as contemplated by the statute and rule 17 is unlawful and inconsistent with the substance and procedural provisions of the Alcoholic Beverage Control Law. The Authority in the first proceeding stated in an affidavit: “ Under the Buies of the Authority, procedure is set up to allow package liquor stores in one community to apply for removal to another community, upon a showing that the public convenience and advantage will be served In this case the Authority has found that public convenience and advantage would be served by a licensed store in the area and community, selected by the petitioner, by approving on September 9, 1953, an application for the removal of an existing license from Bayville, New York, to the block in Massapequa Park within which the petitioner seeks a license. It is important to note that the Bayville licensee’s previous application to move to Massapequa Park was denied on January 29, 1953, five months prior to the completion of the survey. Presumably, the application was denied then because public convenience and advantage would not be served by such a transfer.

The Authority, by letter dated July 20, 1953, had advised the petitioner that the survey and study had been completed and that, based upon the results of the study, the application for permission for the Nassau County board to accept the application for a license in Massapequa Park was denied as public convenience and advantage will be adequately served by the number of premises now licensed to sell liquor for off premises consumption in Nassau County. If public convenience and advantage would require the approval of a license in Massapequa Park on September 9, 1953, certainly the study which had been completed should have indicated that public convenience and advantage would have required it on July 20, 1953, the date of the letter denying the petitioner’s request that the Nassau County board be permitted to accept his application. It would seem to us that once the study and survey demonstrated to the Authority that public convenience and advantage required a license in Massapequa Park, a determination had to be made as to whether public convenience and advantage would be better served by the issuance of a new license or the transfer of ownership of an existing license. Evidence as to convenience and advantage was available to the Authority before June 10, 1953, when rule 17 was amended as a result of the study. (See Bule 17, N. Y. Official Compilation of Codes, Bules & Begulations [9th Off. Supp., 1954], pp. 227-228.)

The Authority claims to have used the statutory standard. But they used it in an unusual manner. The petitioner first applied for permission to file an application in 1952. We must assume that the Authority then could not determine that public convenience and advantage required a license in that location. However, when they did determine that public convenience and advantage required a license in Massapequa Park, the Authority had to exercise its discretion and judgment as to whether to issue a new license or approve the transfer of a license. Bule 17 clearly authorized the Authority to suspend the provisions of the moratorium when such a determination has been made. It is settled law that the exercise of discretion or judgment must not rest on an arbitrary or capricious base or be governed by prejudice. Here, the Authority, having made a determination as to public convenience and advantage in respect to the Massapequa Park location, was empowered to lift the moratorium, but it refused to do so, preferring to transfer an existing license.

This was tantamount to a refusal by the Authority to issue a license or permit, although the conditions permitting the issuance were present (rule 17). Such an act on the part of the Authority is reviewable by the courts (Alcoholic Beverage Control Law, § 121, subd. 1). The denial by the Authority of permission to pass upon an application is equivalent to a refusal to issue a license or permit.

The ostensible ground for denying the petitioner’s long-pending application was that it would not serve the public convenience and advantage of the residents of Massapequa Park, yet under the statute and the rule the Authority had to determine that it would serve public convenience and advantage of the residents of Massapequa Park in order to transfer the license from Bayville to Massapequa Park. The grounds of the rejection of the petitioner’s application appear to us to be on the face of this record inadequate. The Authority had a choice between the granting of a new license and the transfer of the existing license. There are no reasons advanced for selecting the second method of satisfying the standard of public convenience and advantage.

The Authority cannot rely on the defense that it has the power to limit the number of licenses of each class, for it also has the power under rule 17 to issue new licenses, where a determination of public convenience and advantage has been made. Such a determination was made. It may argue that the people of Nassau County benefited by the change of the license from Bay-ville, New York, to Massapequa Park, but the term “ public convenience and advantage ” connotes in our opinion convenience and advantage to the people in the particular area. We are not in a position to judge the propriety of the action of the Authority. The record does not enable us to decide that the decision of the Authority must be sustained as a matter of law. We cannot assume that the discretion and judgment of the Authority was exercised free from prejudice, when the Authority approved the transfer of an existing license into the same block in Massapequa Park in which the petitioner was applying for a license within less than sixty days after it denied the petitioner’s application. At the time the first proceeding was commenced, March 1, 1952, the practice of allowing the transfer or removal of an existing license was a so-called policy not made the subject of any public pronouncement. On November 25, 1952, the Authority adopted rule 37 which converted the so-called policy into a rule. However, rule 37 now in effect and the policy previously followed cannot be said to render inoperative the parts of rule 17, permitting the lifting of the moratorium, when a determination of public convenience and advantage has been made. In this case we have competing applications for the same location. The Authority obviously amended rule 17 and enacted rule 37 as a result of this litigation in order to carry out a predetermined policy. A dilemma, nevertheless, still confronted the Authority. It cannot argue that it can transfer an existing license to a new location without making a determination that public convenience and advantage would be served at that location and, if it concedes that it made a determination that public convenience and advantage would be served, it then had the power under rule 17 to agree to the acceptance of the application for a new license.

It is contended that subdivision 2 of section 17 of the Alcoholic Beverage Control Law, which gives the Authority power “ To limit in its discretion the number of licenses of each class to be issued within the state or any political subdivision thereof ”, prohibits judicial review of the Authority’s determination that the number of licenses in existence at the time the moratorium was promulgated are adequate for the county, as a whole; that is, the moratorium permits the Authority to transfer licenses within a county, so long as the rrablic convenience and advantage of Nassau County, considered as a whole, is served and it is not compelled to concern itself with the public convenience and advantage of a particular town or village. This interpretation necessarily means construing the words, political subdivision thereof ” to mean county ” and county alone. Such an interpretation, it seems to us, is strained and not in accord with either the majority or the dissenting opinions in Matter of Barry v. O’Connell (303 N. Y. 46 [1951], supra), where this court held it error to deny an application for a liquor license on the ground that there was no “ need ” for a liquor store in the hamlet of Verplanck. The tenor of the opinions in that case indicates that the Authority must concern itself with the public convenience and advantage of the neighborhood as well as the county as a whole. An interpretation that the words, “ political subdivision thereof ” refer also to towns and villages is supported by the text of subdivision 1 of section 101-c of the Alcoholic Beverage Control Law.

“ It is the declared policy of the state that it is necessary to regulate and control the manufacture, sale and distribution within the state of liquor and wine for the purpose of fostering and promoting temperance in their consumption and respect for and obedience to the law. In order to eliminate price wars which unduly stimulate the sale and consumption of liquor and wine, disrupt the orderly sale and distribution thereof, and tend to destroy the statutory plan for location of off premises liquor and wine stores in neighborhood communities which most effectively serves public convenience and advantage, it is hereby declared as the policy of the state that the sale of liquor and wine should be subjected to certain restrictions, prohibitions and regulations.” (Emphasis supplied.)

Under these circumstances, the Authority is required to show that the denial of this application was not an abuse of discretion. To this extent the petition stales facts upon which the petitioner is entitled prima facie to relief.

Accordingly, the order of the Appellate Division should be reversed, with costs, and an order should be entered denying respondents’ motion to dismiss the petition.

Desmond and Dye, JJ., concur with Conway, Ch. J.; Ftjld, J., concurs in a separate memorandum; Btjrke, J., dissents in an opinion in which Froessel and Van Voorhis, JJ.,. concur.

Order affirmed.


author: Conway, J.

text:
    In the Matter of George Gross et al., Respondents, against Joseph D. McGoldrick, as State Rent Administrator, Appellant.
    Argued November 15, 1954;
    decided December 31, 1954.

      Beatrice Shainswit and Walter S. Fried for appellant.

      Kermit Gitenstein for respondents.
   Order affirmed, with costs.

Concur: Lewis, Ch. J., Desmond, Dye, Fuld, Froessel, and Van Voorhis, JJ. Conway, J., dissents in the following opinion:

Conway, J.

(dissenting). Petitioners, landlords of a twenty-family multiple dwelling, applied to the local rent administrator, borough of Brooklyn, for a certificate authorizing the eviction of one Fannie Garfinkel, hereinafter referred to as tenant, so that they might use her apartment for a resident superintendent. The tenant challenged petitioners’ good faith in making the application.

On the hearing it appeared that at least one vacancy occurred during the period between the posting of a violation against the landlords for failure to have a resident superintendent (Multiple Dwelling Law, § 83) and the filing of the application for the certificate of eviction, and one occurred two days after the landlords filed the instant application for the certificate. Both vacancies were filled without offering them to the tenant. It further appeared that the tenant had been involved in a controversy with the landlords regarding the rendition of services, a controversy which had culminated in court proceedings.

The local rent administrator denied the application and his decision was upheld by the State Rent Administrator who found:

“ Based upon all the evidence in the record * * * the Administrator finds that the landlord has established the existence of an immediate and compelling necessity for possession of the subject apartment in view of the fact that he is required by law to provide a resident janitor for the subject premises.

The Administrator further finds, however, that the landlord has failed to establish his good faith in this matter. It is clear from the record that two apartments in the subject premises were vacant during the summer of 1953 after the landlord had received the notice of violation and had been fined for failure to remedy same; that no offer of exchange, of apartments was made to this tenant by the landlord; that the landlord has failed to substantiate by any persuasive and convincing evidence, his claim that neither of the vacant apartments was suitable for use by a resident janitor.”

Special Term upheld that determination and I think it manifest that the landlords’ failure to utilize available vacancies occurring after the posting of the violation, particularly the failure to utilize the vacancy occurring after the filing of the application herein, taken together with the evidence of bad feeling between the landlords and the tenant, justified the administrator’s finding of bad faith.

The Appellate Division reversed, on the law. It did not question the administrator’s finding that the landlords were acting in bad faith, but, held that,.as a matter of law, the administrator was powerless to refuse the certificate of eviction in view of the finding of the administrator of immediate and compelling necessity, quoted supra.

In my judgment that was an erroneous conclusion of law.

No provision of the State Residential Rent Law (L. 1946, eh. 274, as amd.) authorizes eviction of a tenant without a certificate in a case such as this so that, under the blanket provisions of the statute (§ 5, subd. 2), landlords were required to show good faith as well as immediate and compelling necessity. It is true that the Multiple Dwelling Law requires a resident superintendent whenever there are thirteen or more families occupying a multiple dwelling and, to comply with that statute, it may he necessary for the landlord to evict a tenant whose accommodations are under the jurisdiction of the Rent Commission. However, I fail to see why, in making the decision as to which tenant to evict, the landlord should not be required to show good faith or that a requirement of such a showing will tend to frustrate the efforts of the Department of Housing and Buildings to enforce the Multiple Dwelling Law. In a multiple dwelling where there are at least thirteen families housed, it would seem that there would be more than one apartment suitable for the resident superintendent. Landlords-petitioners had two vacancies which they apparently could have used, both of them on the ground floor, for the Rent Administrator found that the ‘ landlord has failed to substantiate, by any persuasive and convincing evidence, his claim that neither of the vacant apartments was suitable for use by a resident janitor.” In fact, one of the petitioners-landlords had resided in one of these two ground-floor apartments previously and acted as superintendent. In my opinion the landlords should be required to make use of one of those apartments rather than being permitted to use the Multiple Dwelling Law as a means of retaliation against the tenant — one of those for whose benefit the State Residential Rent Law was enacted.

The order of the Appellate Division should be reversed, and that of Special Term affirmed.

Order affirmed.


text:
    Jacob Koenigs et al., Respondents, v. Hugo Miller et al., Appellants.
    Argued November 16, 1954;
    decided December 31, 1954.

      Samuel E. Swiggett for appellants.

      Richard J. Rélyea, II, and Irving Abramson for respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Froessel and Van Yoorhis, JJ.


text:
    Herbert Cockshaw, Jr., as Successor Trustee under the Will of Alfred Costello, Deceased, Appellant, v. Guaranty Trust Company of New York, Respondent.
    Argued November 18, 1954;
    decided December 31, 1954.

      William T. Van Alsiyne, Leonard B. Smith and James N. Vaughan for appellant.

      Theodore Kiendl, Francis W. Phillips and Philip C. Potter, Jr., for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lewis, Gh. J., Conwat, Desmond, Dye, Fuld, Fboessel and Van Voobhis, JJ.


text:
    The People of the State of New York, Respondent, v. Thomas R. Law, Appellant.
    Argued November 29, 1954;
    decided December 31, 1954.

      Myron J. Greene and Martin Greene for appellant.

      Frank S. Hogan, District Attorney (Harold Roland Shapiro of counsel), for respondent.
   Judgment affirmed; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Fboessel and Van Voobhis, JJ.


author: Per Curiam.

text:
    The People of the State of New York, Respondent, v. George Fuller and John Wilson, Appellants.
    Argued December 1, 1954;
    decided December 31, 1954.

      Maurice Frey for John Wilson, appellant, and Solomon Daniels for George Fuller, appellant.

      John F. Dwyer, District Attorney (Edward J. Marschner and Leonard Finlcelstein of counsel), for respondent.
   Per Curiam.

In this case the circumstantial evidence did not authorize the inference of critical facts from which the conclusion of guilt was drawn. Those facts were not proved, but were left to conjecture; the controlling inference was not clear and strong, pointing logically to defendants’ guilt and excluding to a moral certainty every other reasonable hypothesis. (People v. Taddio, 292 N. Y. 488, 489, and cases cited.)

The judgments should be reversed and a new trial ordered.

Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Froessel and Van Voorhis, JJ., concur.

Judgments reversed, etc.


author: Van Voobhis, J.

text:
    The People of the State of New York, Respondent, v. Charles Von Glahn, Appellant.
    Argued December 2, 1954;
    decided December 31, 1954.

      Samuel L. Hays, Reginald G. Smith and Pierre G. Lundberg for appellant.

      Harry C. Brenner, District Attorney (Henry Tasker or counsel), for respondent.
   Judgment affirmed.

Concur: Lewis, Ch. J., Desmond, Dye, Fuld and Fboessel, JJ. Van Voobhis, J., dissents in opinion. Taking no part: Conway, J.

Van Voobhis, J.

(dissenting). It seems to me that there is a distinction between this case and Matter of Moore v. Thorn (245 App. Div. 180, affd. 270 N. Y. 502) in that here the defect did not consist in some informality, such as failure to file an information, which, when later filed, showed the facts to be those which the court had assumed to be true in making the original sentence, but the narrative of events has developed that the underlying crime on the basis of which appellant was sentenced as a second felony offender should not have been counted as a felony. By coincidence he had been guilty of another crime which should have been counted but was not, and that did, in reality, constitute him a second felony offender. When he was resentenced, the court indicated that he might have been dealt with more leniently except for the proviso in section 2188 of the Penal Law that the imprisonment directed by the judgment, shall not be suspended or interrupted after such imprisonment shall have commenced.” The thought which the County Judge evidently had in mind is that the new underlying felony would not justify so long a sentence as the other one which should not have been regarded in measuring the original sentence; nevertheless, he considered himself to have been deprived of judicial discretion by the language quoted from section 2188. In the Thorn case, the underlying felony was the same, and only procedural deficiencies were corrected; here, the substance has changed. I can find nothing in the statutes which makes it mandatory to perpetuate the original sentence which was imposed upon an erroneous assumption of fact, by reason of an underlying felony that should not have been considered; this statute does not purport to prohibit the County Court from exercising its judicial discretion on the basis of appellant’s criminal record as it actually was. The words contained in section 1943 of the Penal Law do not require this result, that there shall be deducted ‘ ‘ from the new sentence all time actually served on the sentence so vacated.” If the resentence proves to be less than the time already served, this language appears to signify merely that a defendant shall go free. Otherwise, it is to be deducted from the time which the court sees fit to impose in resentencing. I find nothing in Moore v. Thorn which militates against such a construction, where the resentence is based upon a different underlying felony.

The order appealed from should be reversed and the matter remanded to the County Court of Suffolk County to resentence appellant under the statutes in accordance with its judicial discretion.

Judgment affirmed.


author:
      Per Curiam.
     Fboessel, J.

text:
    Sophia A. Smith, Appellant, v. Isidor A. Smith, Respondent.
    Argued October 18, 1954;
    decided December 31, 1954.

      Charles Gottlieb and Benjamin Bernstein for appellant.

      Ralph D. Ray and Edward R. Neaher for respondent.
   Per Curiam.

The question whether there may be a dual burden of proof in the usual interpleader case, so that neither party may recover unless he sustains the burden of establishing his claim, is not presented by the present case — which was tried before a jury by consent of both parties and was otherwise treated as an action at law in replevin. In any event, in the present case there are only two possible owners of the stock in suit, either plaintiff or defendant. The issue as to which of the two parties owns the stock turns here upon identical questions both of law and fact. If one of the two claimants is not the owner, it must follow that the other claimant is the owner.

Accordingly, since the negation of one claim in our present case would automatically establish the other (see Russ v. Russ, 263 N. Y. 625, 626), no error was presented by reason of the trial court’s failure to charge the jury that there was a dual burden of proof.

The judgment should be affirmed, with costs.

Fboessel, J.

(dissenting). I dissent and vote to reverse upon the ground that the trial court erred in charging that the burden of proof rested wholly upon the plaintiff and in refusing to charge, as requested, that the defendant had a like burden before he could recover. Before either adversary party in the case of interpleader can recover, the burden of proof rests upon such party to establish his claim by a fair preponderance of the evidence. To put it otherwise: each claimant must carry his own burden and establish his own title; he may not rely on the weakness of the other’s claim (Clark v. Mosher, 107 N. Y. 118, 122; Willat Film Corp v. Central Union Trust Co., 221 App. Div. 180, 183; Savage v. McCauley, 301 Mass. 162; County of Union v. Hopkins, 95 N. J. Eq. 444; Wetzel v. Collin, 170 Md. 383; Prudential Ins. Co. of America v. Cahill, 321 Ill. App. 45; Neiderlehner v. Weatherly, 73 Ohio App. 33; see, also, Bata v. Bata, 306 N. Y. 96, 101, 109).

Lewis, Ch. J., Conway, Desmond, Dye and Fuld, JJ., concur in Per Curiam opinion; Fboessel, J., dissents in an opinion; Van Vooehis, J., taking no part.

Judgment affirmed.


text:
    The People of the State of New York, Respondent, v. Joseph C. Workman, Appellant.
    Argued October 18, 1954;
    decided December 31, 1954.

      Archibald Palmer for appellant.

      Edward S. Silver, District Attorney (Aaron E. Koota, Julius H elf and and Jerome C. Ditore of counsel)., for respondent.
   Per Curiam.

Defendant was convicted of the crime of perjury in the first degree for testifying falsely before a Grand Jury. The People established beyond a reasonable doubt that defendant had given false answers in a questionnaire which he had submitted to the Grand Jury.

The questionnaire had been prepared by the District Attorney and contained sixty-eight numbered answers. Before a charge of perjury is predicated upon the answers in such a questionnaire, the questions should be clear, simple, direct and unambiguous. They should be phrased so that a person of average intelligence may determine exactly what information is sought by each question, without the introduction of possible confusion by somewhat similar or overlapping queries in other parts of the questionnaire. Questions Nos. 42 and 66, to which the defendant made the answers which resulted in his conviction, were sufficiently clear and unambiguous in phraseology.

At the perjury trial the prosecution employed a chart at the top of which appeared the legend “It is claimed that the defendant failed to list ”, and underneath this were listed twenty items, together with their alleged value. When this chart was first presented, the names of these twenty items were concealed by paper covering strips, which strips were removed one by one by the prosecuting attorney as testimony was elicited to prove that defendant had possessed the items.

We disapprove of this dramatic use of the chart, since it might lead the jury to believe that defendant’s possession of the items had been established conclusively; however, it cannot be said, in view of all of the circumstances at this trial, that the defendant was unduly prejudiced thereby, or that he failed to receive a fair trial. (Of. Code Grim. Pro, § 542.)

The judgment should be affirmed.

Lewis, Oh. J., Conway, Desmond, Dye, Fuld, Fboessel and Van Voobhis, JJ., concur.

Judgment affirmed.


text:
    In the Matter of the Claim of Margaret Reichel, Respondent, against Stokol Sales of New York et al., Appellants., Workmen’s Compensation Board, Respondent.
    Argued October 20, 1954;
    decided December 31, 1954.

      Paul F. Donohue for appellants.

      Nathaniel L. Goldstein, Attorney-General {Daniel Polanshy, Wendell P. Brown and Roy Wiedersum of counsel), for Workmen’s Compensation Board, respondent.
   Order affirmed, with costs; no opinion.

Concur: Lewis, Ch„ J., Conway, Dye and Froessel, JJ. Desmond, Fuld and Van Voobhis, JJ., dissent and vote to reverse and to dismiss the claim.


text:
    William Pickett, Appellant, v. City of New York, Respondent.
    Argued November 16, 1954;
    decided December 31, 1954.

      Herbert L Fine for appellant.

      Adrian P. Burke, Corporation Counsel (Fred Iseol and Seymour B. Quel of counsel), for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Fboessel and Van Voobhis, JJ.


text:
    In the Matter of the Claim of Herman Wiltcher, Respondent, against National Transportation Co., Inc., et al., Appellants. Workmen’s Compensation Board, Respondent.
    Argued December 2, 1954;
    decided December 31, 1954.

      Arthur F. Gaynor, James A. Doherty and Frederick P. Close for appellants.

      Nathaniel L. Goldstein, Attorney-General (Daniel Polansky, Wendell P. Brown and Boy Wiedersum of counsel), for Workmen’s Compensation Board, respondent.
   Appeal dismissed, with costs; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Froessel, and Van Voorhis, JJ.


text:
    Silvia Muscillo, Respondent, v. Helen Muscillo et al., as Temporary Administrators of the Estate of Severino Muscillo, Deceased, et al., Appellants.
    Submitted December 2, 1954;
    decided December 31, 1954.

      Milton D. Goldman and Daniel M. Shientag for appellants.

      Dominick A. DeRogatis for respondent.
   Judgment affirmed; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fund, Froessel and Van Voorhis, JJ.


text:
    Russell L. Bartlett, as Administrator of the Estate of Daniel J. Bartlett, Deceased, et al., Appellants, v. State of New York, Respondent.
    (Claim No. 32504.)
    Argued November 15, 1954;
    decided December 31, 1954.

      Nathan L. Levine and Edward M. Edenbaum for appellants.

      Nathaniel L. Goldstein, Attorney-General (Henry S. Manley and Wendell P. Brown of counsel), for respondent.
   Order affirmed; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Fboessel and Van Voobhis, JJ.


text:
    In the Matter of Natalia J. Odell, Appellant, against J. Raymond McGovern, as Comptroller of the State of New York, Respondent.
    Argued November 18, 1954;
    decided December 31, 1954.

      Augustus W. Bennet for appellant.

      Nathaniel L. Goldstein, Attorney-General (George E. Bothlauf and Wendell P. Brown of counsel), for respondent.
   Per Curiam.

An applicant for accidental death benefits under the Civil Service Law must at least demonstrate that by the “ common-sense viewpoint of the average man ” the death was an accident (see Matter of Masse v. Robinson Co., 301 N. Y. 34, 37). If reasonable minds might fairly differ in respect to a particular application of that test, then the Comptroller’s independent judgment must be accepted (see Matter of Trowbridge, 266 N. Y. 283, 289). Upon this record we conclude that it cannot be said as a matter of law that the decedent’s death was the natural and proximate result of an accident and that we must credit to the Comptroller “ the common-sense viewpoint of the average man.” Accordingly, we find it unnecessary to determine whether a “ different social philosophy was envisaged by the Legislature for benefits under the Civil Service Law than it had in mind for benefits under the Workmen’s Compensation Law” or whether “the Comptroller may require more convincing evidence of an accident than is required under the Workmen’s Compensation Law ” (283 App. Div. 585, 587).

The order of the Appellate Division should be affirmed, without costs.

Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Fboessel and Van Voobhis, JJ., concur.

Order affirmed.


text:
    Yula P. St. George, as Administratrix of the Estate of Frank St. George, Deceased, Appellant, v. State of New York, Respondent.
    (Claim No. 30281.)
    Argued November 18, 1954;
    decided December 31,1954.

      JohnP. McGrath, Harry Ander, Harry H. Lip sig and Thomas F. McCoy for appellant.

      Nathaniel L. Goldstein, Attorney-General (Henry 8. Manley and Wendell P. Brown of counsel), for respondent.
   Judgment affirmed; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Froessel and Van Voorhis, JJ.


text:
    In the Matter of the Claim of Ruth E. Jamison, Respondent, against New York State Temporary Commission on Agriculture et al., Appellants. Workmen’s Compensation Board, Respondent.
    Argued December 2, 1954;
    decided December 31, 1954.

      Victor Fiddler, Bernard Katsen and George J. Hayes for appellants.

      Nathaniel L. Goldstein, Attorney-General (Harry Pastor, Wendell P. Brown and Boy Wiedersum of counsel), for Work- . men’s Compensation Board, respondent.
   Per Curiam.

This award cannot be sustained, since there is

nothing to take the case out of the settled rule that an employee injured while away from his employer’s premises and while going to or from lunch is not entitled to workmen’s compensation except in special circumstances not shown here (Matter of Johnson v. Smith, 263 N. Y. 10, 13; Matter of Weir v. Board of Educ., 282 N. Y. 709; Matter of Layton v. Spear & Co., 287 N. Y. 610; 1 Larson on Workmen’s Compensation Law, §§ 15.51, 15.52, 21.23). The record here, unlike that in Matter of Manville v. New York State Dept. of Labor (294 N. Y. 1), contains neither proof nor finding that the sidewalk on which claimant fell was part of the premises of her employer, the State of New York.

The order of the Appellate Division should be reversed, the award of the Workmen’s Compensation Board annulled and the claim dismissed, with costs in this court and in the Appellate Division, against respondent Workmen’s Compensation Board.

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

Order reversed, etc.


text:
    The People of the State of New York, Respondent, v. Sidney S. Levine, Appellant.
    Argued December 2, 1954;
    decided December 31, 1954.

      Sol Rothschild for appellant.

      Frank S. Hogan, District Attorney of New York County {Paul A. Stone and Richard G. Denser of counsel), for respondent.

      George B. De Luca, District Attorney of Bronx County {Albert A. Blinder and Walter E. Dillon of counsel), for respondent.
   Judgments affirmed; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld and Fboessel, JJ. Van Voobhis, J., dissents and votes to modify the judgments by dismissing the complaints as to seven parking offenses upon the ground that their prosecution was barred by the two-year Statute of Limitations applicable to misdemeanors (Code Crim. Pro., § 142). The Statute of Limitations is procedural and is included as an integral part of the “ jurisdiction ” over traffic infractions conferred by subdivision 29 of section 2 of the Vehicle and Traffic Law as in the case of mis demeanors. It is unlikely to have been the intention of the Legislature that lapse of time shall never bar offenses less serious than misdemeanors, thus placing them in the same class as murder in the first degree or kidnapping.


text:
    John O. Young, as a Stockholder Individually and on Behalf of All Other Stockholders of Farmers and Traders Life Insurance Company Similarly Situated and on Behalf of the Holders of Voting Trust Certificates of Stock in Said Company Similarly Situated, and in the Right of Said Company, Appellant, v. Louis J. Taber et al., Respondents.
    Argued November 30, 1954;
    decided December 31, 1954.

      Martin F. Kendrick and Harlow B. Ansell for appellant.

      Benjamin E. Shove, respondent in person and for Louis J. Taber and others, respondents.
   Judgment affirmed, with costs; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Feoessel and Van Vooehis, JJ.


text:
    Biothermal Process Corporation, Appellant, v. Cohu & Company, Respondent.
    Argued November 16, 1954;
    decided December 31, 1954.

      Henry Cohen and Arthur P. McNulty for appellant.

      Leo T. Kissam, James H. Halpin and Joseph M. O’Loughlin for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fold, Froessel and Van Voorhis, JJ.


text:
    In the Matter of Paul Simone, on Behalf of Himself and All Others Similarly Situated, Appellant, against J. Edward Conway et al., Constituting the State Civil Service Commission, Respondents.
    Argued November 15, 1954;
    decided December 31, 1954.

      Paul Silverstein and Abraham H. Gejfner for appellant.

      Nathaniel L. Goldstein, Attorney-General (Raymond B. Madden and Wendell P. Brown of counsel), for respondents.
   Order affirmed; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Fboessel and Van Yoobhis, JJ.


text:
    The People of the State of New York, Respondent, v. Norman J. Brabson, Appellant.
    Argued November 29, 1954;
    decided December 31, 1954.

      Paul B. Shanahan for appellant.

      Frank S. Hogan, District Attorney (Leonard-E. Beisman and Bichard G. Denser of counsel), for respondent.•
   Order affirmed; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye and Van Voobhis, JJ. Taking no part: Fuld and Fboessel, JJ.


text:
    The People of the State of New York, Respondent, v. Concepcion Estrada Correa, Pedro Antonio Rios and Henry Matthews, Appellants.
    Argued December 1, 1954;
    decided December 31, 1954.

      J ohn McKim Minton and Frederick J. Miller for Concepcion Estrada Correa, appellant.

      Harris B. Steinberg, Philip Brown and Arthur L. Harrow for Pedro Antonio Rios, appellant.

      Newman Levy and Benjamin Levy for Henry Matthews, appellant.

      Frank S. Hogan, District Attorney (Bichard G. Denser and Leonard E. Reisman of counsel), for respondent.
   Judgments of conviction affirmed; no opinion.

Concur: Lewis, Ch. J., Cosway, Dye and Vas Vookhis, JJ. Desmosd, Fuld and Froessel, JJ., dissent and vote to reverse and order a new trial upon the ground that the record contains several erroneous statements by the trial judge, particularly his instruction that all of the defendants must be regarded as accomplices as a matter of law, and that it is impossible to determine whether or not their rights were seriously prejudiced by any of those, errors.


text:
    In the Matter of the Claim of Ben Paris, Appellant. Edward Corsi, as Industrial Commissioner, Respondent.
    Argued November 18, 1954;
    decided December 31, 1954.

      John T. De Graff and John J. Kelly, Jr., for appellant.

      Nathaniel L. Goldstein, Attorney-General (Francis B. Curran and Wendell P. Brown of counsel), for Edward Corsi, Industrial Commissioner, respondent.
   Order affirmed; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Feoessel and Van Voobhis, JJ.


text:
    Mary Platto et al., Appellants, v. Bertha Stier, Respondent.
    Argued November 15, 1954;
    decided December 31, 1954.

      Herbert L. Fine, Murray Eisenberg and Harry Zeitlan for appellants.

      Samuel E. Swiggett for respondent.
   Judgment of the Appellate Division reversed and case remitted to that court for determination of questions of fact, without costs to either party. (Civ. Prac. Act, § 602; see, e.g., McLean v. McKinley, 307 N. Y. 661.) No opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld and Froessel, JJ. Van Voorhis, J., dissents and votes to affirm on the ground that the Appellate Division correctly dismissed the complaint upon the law.


text:
    The People of the State of New York, Respondent, v. Richard Wayne Carder, Defendant, and John Monaghan, Appellant.
    Argued November 30, 1954;
    decided December 31, 1954.

      J. Howard Rossbach, Florence M. Kelley, Anthony Marra and Martin Erdmann for appellant.

      Frank 8. Hogan, District Attorney (Charles W. Manning of counsel), for respondent.
   Judgment affirmed; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Feoessel and Van Voorhis, JJ.


text:
    Gilda Virga et al., Appellants, v. Elizabeth Cervieri, Respondent, et al., Defendants.
    Argued December 3, 1954;
    decided December 31, 1954.

      Clarence A. Baracks for appellants.

      Walter B. Solinger, II, for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Fboessel and Van Voobhis, JJ.


text:
    In the Matter of Alonzo O. Briscoe et al., Respondents, and Charles Cogen et al., Interveners-Respondents, against Teachers’ Retirement Board of the City of New York et al., Appellants.
    Argued November 17, 1954;
    decided December 31, 1954.

      Adrian P. Burke, Corporation Counsel (W. Bernard Richland and Pauline K. Berger of counsel), for appellants.

      Leonard M. Wallstein and Leonard M. Wallsiein, Jr., for respondents and interveners-respondents.
   Order affirmed, with costs; no opinion.

Concur: Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Froessel and Van Voobhis, JJ.