author: Fuld, J. Froessel, J.

text:
    In the Matter of Helena Holland, Doing Business as “Holland Vocational Service”, Appellant, against Edward W. Edwards et al., as Members of the State Commission Against Discrimination, Respondents. In the Matter of State Commission Against Discrimination, Respondent, against Helena Holland, Doing Business as “Holland Vocational Service”, Appellant.
    Argued November 24, 1953;
    decided April 23, 1954.

      William E. Vogel and George I. Harris for appellant.
    I. The commission had no jurisdiction of the subject matter of the complaint because the complaint was not made by a person aggrieved. (Pratt v. La Guardia, 182 Misc. 462, 268 App. Div. 973, 294 N. Y. 842; Woollcott v. Shubert, 217 N. Y. 212; Grannon v. Westchester Racing Assn., 16 App. Div. 8, 153 N. Y. 449; Fulton Light Heat & Power Co. v. Seneca River Power Co., 119 Misc. 729; Matter of Ball, 94 Misc. 112; People ex rel. Ambroad Equities v. Miller, 264 App. Div. 262, 289 N. Y. 339; Ex parte Levitt, 302 U. S. 633; Tileston v. Ullman, 318 U. S. 44; Matter of Dimentstein [Frankle], 184 Misc. 126; Matter of Newbrand v. City of Yonkers, 285 N. Y. 164; Matter of Walter, 75 N. Y. 354; Matter of Phillips, 60 N. Y. 16; Matter of Quinby v. Public Service Comm., 223 N. Y. 244; People ex rel. New York Rys. Co. v. Public Service Comm., 223 N. Y. 373.) II. Despondent made no inquiries which constitute an unlawful employment practice. (People v. Briggs, 193 N. Y. 457; New York State Labor Relations Bd. v. Shattuck Co., 260 App. Div. 315.) III. The employment application form used by the respondent is not unlawful. IV. The commission’s findings of fact are not sufficient to support the commission’s conclusions of law. (Securities Comm. v. Chenery Corp., 318 U. S. 80, 332 U. S. 194; Matter of Scudder v. O’Connell, 272 App. Div. 251; Matter of Elite Dairy Products v. Ten Eyck, 271 N. Y. 488; Schoerer v. Connolly, 44 Misc. 222; Fowler v. Bushby, 69 Misc. 341; Curtis v. Corbitt, 25 How. Prac. 58; Grossman Mfg. Co. v. New York Central R. R. Co., 181 App. Div. 764; Matter of Shearer v. Niagara Falls Power Co., 242 N. Y. 70; United States v. Baltimore & O. R. R. Co., 293 U. S. 454; Saginaw Broadcasting Co. v. Federal Communications Comm., 96 F. 2d 554.) V. There is no basis for certain of the affirmative action provisions of the order of the commission. (Matter of Corporate Employment Service v. Moss, 261 App. Div. 586, 286 N. Y. 601; Matter of Small v. Moss, 279 N. Y. 288; Matter of International Ry. Co. v. Public Service Comm., 264 App. Div. 506, 289 N. Y. 830; Acorn Employment Service v. Moss, 292 N. Y. 147; Winters v. New York, 333 U. S. 507; Connally v. General Constr. Co., 269 U. S. 385; People v. Briggs, 193 N. Y. 457; Ivory v. Edwards, 278 App. Div. 359, 304 N. Y. 949.)

      Henry Spits and Milton Rosenberg for respondent.
    I. The commission has jurisdiction over the person of Holland and the subject matter of the proceeding. (Matter of Stork Restaurant v. Boland, 282 N. Y. 256.) II. The complainant is a proper complainant under the law as a person claiming to be aggrieved. III. Holland made unlawful inquiries to Lehds in connection with prospective employment. IV. The commission is an expert body charged with initial determination of the application of a broad statutory term, and substantial weight must be given to its interpretation as to what are unlawful pre-employment inquiries under the law. (Red Hook Cold Storage Co. v. Department of Labor, 295 N. Y. 1.) V. The evidence supports the commission’s findings. VI. The commission’s findings of fact are specific and detailed, show the actual grounds of decision, comply with the statute and provide the necessary basis for judicial review. (Elite Dairy Products v. Ten Eyck, 271 N. Y. 488.) VII. The cease and desist provisions of the order relate directly to unlawful employment practices which the commission found that respondent had engaged in. VIII. The affirmative action provisions of the order constitute a reasonable exercise of the judgment of the commission to effectuate the purposes of the Law Against Discrimination. IX. The law’s regulation of employment agencies and its prohibitions against the use of particular pre-employment procedures are reasonable exercises of the State’s police power. (Woollcott v. Shubert, 217 N. Y. 212; Olsen v. Nebraska, 313 U. S. 236; Railway Mail Assn. v. Corsi, 326 U. S. 88.)
   Fuld, J.

Representing as it does the first instance of a litigated controversy, after a hearing, under the Law Against Discrimination (Executive Law, art. 15), this appeal is of more than passing significance.

Helena Holland, appellant herein, doing business as the Holland Vocational Service, operates an employment agency for secretaries and clerical workers in New York City. On September 18,1951, a young woman, Rue Lehds by name, went to the agency in response to a newspaper advertisement for a secretary. She was given an application to fill out which included, among other items, the question, “ Family Name or Your Name ever Changed Legally or otherwise.” Miss Lehds answered by noting that her family name had been “ Winston.”

After looking over the application as filled out, appellant proceeded to question Miss Lehds concerning the religion of one of her former employers, the maiden name of the latter’s wife — “ What sort of name is that?” — and the applicant’s national origin, as reflected by her name and schooling. Although, according to Miss Lehds, there was some discussion of a prospective position — with an employer other than appellant — nothing further came of the interview.

Upon Miss Lehds’ complaint, respondent, the State Commission Against Discrimination, conducted a preliminary investigation and then, after unsuccessful resort to the statutory procedure of ‘ ‘ conference, conciliation and persuasion ’ ’, held a hearing in accordance with the provisions of the Law Against Discrimination (Executive Law, § 297). Appellant made a statement in her behalf in the preliminary investigation and filed an answer to the complaint. At the hearing, however, she withdrew before any evidence was taken, electing to make no defense and to conduct no cross-examination of the witnesses who testified in support of the complaint.

At the conclusion of the hearing, the commission decided that the question as to change of name in the application form and the oral inquiries violated subdivision 3 of section 296 of the statute. That subdivision (renum. by L. 1952, ch. 285, as § 296, subd. 1, par. [c]) declares it to be an unlawful practice for any employer or employment agency, as defined in the Law, s( to use any form of application for employment or to make any inquiry in connection with prospective employment, which expresses, directly or indirectly, any limitation, specification or discrimination as to race, creed, color or national origin, or any intent to make any such limitation, specification or discrimination, unless based upon a bona fide occupational qualification.”

To enforce its determination, the commission issued an order directing appellant to cease and desist ” from making any inquiries respecting race, creed, color or national origin when interviewing, or receiving applications from, persons seeking employment; from giving consideration to such factors in making evaluations of applicants for referral to prospective employers; and from using an application form which includes any inquiry or reference concerning an applicant’s change of name, unless first submitted to, and approved by, the commission. Appellant was further directed not to furnish any information to prospective employers as to an applicant’s race, creed, color or national origin, and not to accept any job orders containing any limitation, specification or discrimination on that score. The order also required appellant to maintain and make available to the commission, for a period of one year, records of the action taken on all employment applications and employers’ job orders, and to make available to the commission all other records relating to her business, until such time as the commission should determine that she was complying with the statute.

It is worth noting— particularly in view of section 298 of the Executive Law — that no objection was urged before the commission as to any finding of fact, conclusion of law or requirement of the order, and no change or modification of such order was sought of the commission.

Shortly after the determination was made, proceedings were initiated both by the commission to compel compliance with its order and by appellant to review the commission’s decision. The Supreme Court at Special Term granted the commission’s application and denied appellant’s petition. The Appellate Division affirmed by a divided court, the minority dissenting with respect to the direction that appellant maintain records of the action taken on employment applications and job orders.

At the outset, we observe that the legislature created the Commission Against Discrimination to effectuate its declared policy of combating the practice of discrimination on the basis of race, creed, color or national origin, as a threat to our democratic institutions (Executive Law, § 290). Specified discriminatory practices in the field of employment were denominated “unlawful employment practices,” and the commission was empowered to take appropriate action to eliminate and prevent such practices (§§ 290, 296, 297). Upon complaint by “ Any person claiming to be aggrieved ”, the commission is authorized to conduct a hearing, after first attempting to eliminate the practice complained of “by conference, conciliation and persuasion.” If, upon all the evidence at the hearing, the commission finds that the respondent has engaged in an unlawful employment practice as defined in the statute, it is authorized to issue an order requiring the respondent to “ cease and desist from such unlawful employment practice and to take such affirmative action * * * as, in the judgment of the commission, will effectuate the purposes of this article ” (§■ 297). Provisiones made for judicial review and enforcement of orders of the commission, the statute announcing that “ The findings of the commission as to the facts shall be conclusive if supported by sufficient evidence on the record considered as a whole ” (§ 298).

Judicial review of findings made by an administrative agency such as this commission is, of course, limited to the question whether the findings are, upon the entire record, supported by evidence “ so substantial that from it an inference of the existence of the fact found may be drawn reasonably.” (Matter of Stork Restaurant v. Boland, 282 N. Y. 256, 273; see, also, Matter of McCormack v. National City Bank, 303 N. Y. 5, 9; Matter of Humphrey v. State Ins. Fund, 298 N. Y. 327, 332.) There can be no doubt that there was here present the requisite substantial evidence to support the commission’s findings that appellant’s inquiries “ expressed a [prohibited] limitation, specification or discrimination as to creed or national origin.” In accordance with the statutory declaration (§ 298), those findings are, therefore “ conclusive ”.

Appellant, however, argues that neither the inquiry as to change of name nor any of the questions put by her in the oral interview necessarily reflected a discriminatory purpose or design. And it is quite true, as the Appellate Division observed, that the inquiry as to change of name might, in another setting, “be entirely removed from any purpose of discrimination” and might, under other circumstances, be regarded as “ quite appropriate ” (282 App. Div. 353, 359). Nevertheless, in this case, it was entirely reasonable for the commission to conclude that appellant’s inquiries, when considered as a whole and in context, contravened the statute.

One intent on violating the Law Against Discrimination cannot be expected to declare or announce his purpose. Far more, likely, is if; that he will pursue his discriminatory practices in, ways that are devious, by methods subtle and elusive — for we deal with an area in which subtleties of conduct * * * play no small part”. (Cf. Labor Bd. v. Express Pub. Co., 312 U. S. 426, 437.) All of which amply justifies the legislature’s grant of broad power to the commission to appraise, correlate and evaluate the facts uncovered.

In the proceedings before the commission, appellant challenged the agency’s jurisdiction upon the ground that she had interviewed complainant for a position in her own office, and that, as an employer of less than six persons, she was not subject to the provisions of the statute (§ 292, subd. 5). The commission found the fact to be otherwise; it expressly stated, in accordance with complainant’s testimony, that the interview related to a position with an employer other than appellant. Appellant has apparently abandoned that contention on this appeal.

A further objection to jurisdiction, not presented to the commission, is, however, now advanced, the new claim being that the complainant could not be considered a person “ aggrieved ” within the meaning of the statute (§ 297), since there is no evidence or finding that she was refused a referral because of discrimination on the part of appellant. But in view of the explicit statutory direction that “Ho objection that has not been urged before the commission shall be considered by the court, unless the failure or neglect to urge such objection shall be excused because of extraordinary circumstances ” (§ 298), and since there is not even a suggestion of such “ circumstances ”, the objection “ is not open for review by a court ”. (Labor Bd. v. Cheney Lumber Co., 327 U. S. 385, 389; see, also, May Stores Co. v. Labor Bd., 326 U. S. 376, 386, n. 5.) In the Cheney Lumber case (supra, 327 U. S. 385), the Supreme Court explicitly ruled — under an identical provision of statute (Hational Labor Relations Act, § 10, subd. [e], U. S. Code, tit. 29, § 160, subd. [e]) — that an objection not advanced until after the agency seeks judicial enforcement of its order “ came too late ” (p. 388). We can say ”, wrote the court (p. 389), “ that it gives emphasis to the salutary policy adopted by § 10 (e) of affording the Board opportunity consider on the merits questions to be urged upon review, of its order.’ * * * Justification of such an order, which necessarily involves consideration of the facts which are the foundation of the order, is not open for review by a court if no prior objection has been urged before the case gets into court and there is a total want of extraordinary circumstances to excuse ‘ the failure or neglect to urge such objection * * *.’ Congress desired that all controversies of fact, and the allowable inferences from the facts, be threshed out, certainly in the first instance, before the Board. That is what the Board is for.”

In any event, though, it is clear that the commission acted within its jurisdiction in entertaining the complaint here involved. It properly regarded the complaining witness as a person “ aggrieved ” by inquiries directed to her in violation of the statute, even though there may have been no actual refusal of a referral. The proscribed inquiry is thus itself declared an unlawful employment practice by the statute, whether or no the applicant be denied employment or referral.

The only other objection urged by appellant in this court concerns particular directives contained in the order issued by the commission. The Executive Law authorizes that body to devise remedies which it deems appropriate to “ effectuate ” the legislative policy against discrimination and to prevent future violations by a proven transgressor (§ 297). The commission— as in the case of other agencies under comparable statutes — ‘ ‘ has wide discretion in its choice of a remedy deemed adequate to cope with the unlawful practices ” in question, and the courts will not interfere except where the remedy selected has no reasonable relation to the unlawful practices found to exist.” (Siegel Co. v. Trade Comm., 327 U. S. 608, 611, 612-613; see, also, Labor Bd. v. Cheney Lumber Co., supra, 327 U. S. 385, 388; Federal Trade Comm. v. Ruberoid Co., 343 U. S. 470, 473.) However, we do not consider whether any subdivision of the commission’s order offends on that score. As already noted, the objection, not having been made until after the commission had gone into court to secure enforcement of its order, came too late. (Supra, pp. 45-46; see Executive Law, § 298; Labor Bd. v. Cheney Lumber Co., supra, 327 U. S. 385, 388-389.) Decision on questions not now reviewable should await a case that presents them.

The order of the Appellate Division should be affirmed.

Froessel, J.

(concurring). We concur for affirmance, and in large measure agree with Judge Fuld. This is not to say, however, that in another setting and under other circumstances we would approve in its entirety the order of the commission.

Using the form of application which includes the question whether applicant’s name was “ ever Changed Legally or otherwise ” is not in itself objectionable. Women change their names by reason of marriage. An applicant may have been convicted of crime, adjudged a bankrupt or committed some act of misconduct which he may seek to conceal from an employer by a change of name. It may be noted that similar questions as to change of name are contained in applications for admission to practice in the Supreme Court of the United States, in applications of the Department of Civil Service of the State of New York, and in questionnaires employed by the Character Committee of the Appellate Division, established pursuant to section 90 of the Judiciary Law, rule 1 of the Rules of Civil Practice, and our own Rules VIII and IX for admission of attorneys.

However, under the circumstances presented by this record, and in the absence of objection under section 298 of the Executive Law, we may not disturb the determination of the commission that the oral and written inquiries “taken together” constituted an unlawful employment practice. Petitioner had every opportunity to present her evidence, contentions and objections to the commission, but she chose not to take full advantage of that opportunity. She may not now ask us to consider objections that have not been urged before the commission, unless her failure or neglect to urge them shall be excusable because of extraordinary circumstances, which are not present here (Labor Bd. v. Cheney Lumber Co., 327 U. S. 385).

As to the directives concerning affirmative action, had objection been timely made by petitioner, we would have grave doubt as to the propriety of subdivision e, which orders petitioner, and without a time limitation, to submit to the commission all job orders “which raise a question” whether there was a violation of section 296; and to subdivisions f and h only because they were not limited to a reasonable time as was done in subdivision g. In any event, and especially because of their penal aspects (§ 299), such directives could not be unreasonably prolonged, in which event an article 78 proceeding would lie to compel appropriate action (Bohling v. Corsi, 306 N. Y. 815).

Lewis, Ch. J., and Desmond, J., concur with Fuld, J.; Fbcessel, J., concurs for affirmance in a separate memorandum in which Conway, Dye and Van Voobhis, JJ., concur.

Order affirmed.

      . Amendments enacted in 1952 (L. 1952, ehs. 284, 285), not applicable to this case, enlarged the scope of the statute and changed the description of the prohibited practices to “unlawful discriminatory practices.”


source: Caselaw Access Project

author: Fuld, J. Desmond, J.

license: Public Domain

text:
    United Security Corporation, Respondent, v. Isadore Suchman, Appellant.
    Argued April 6, 1954;
    decided May 20, 1954.

      Paul R. Shaw and Henry G. Friedlander for appellant.
    I. The uncontradicted evidence of payment is a complete defense- to the petition as served. (Metropolitan Life Ins. Co. v. Childs Co., 230 N. Y. 285; Commonwealth Mtge. Co. v. De Waltoff, 135 App. Div. 33.) II. The proposed amendment to plead the termination of the lease would destroy the right of this new owner to claim the existence of a landlord and tenant relationship with this occupant, there would be no liability to pay rent to the new owner and summary proceedings for nonpayment could not be maintained. III. After a lease is cut off by foreclosure there is no liability by the tenant for rent to the purchaser in the absence of an attornment or new agreement. (Greene v. Geiger, 46 App. Div. 210.) IV. The claim of an implied agreement is without foundation in fact or in law. (Castle v. Armstead, 168 App. Div. 466, 219 N. Y. 615; Stern v. Equitable Trust Co., 238 N. Y. 267.) V. The judicial concept of statutory tenancy is irrelevant to this case. (Zajic v. Sikora Realty Corp., 252 App. Div. 343; Ellenbogen v. Caldwell, 270 App. Div. 946.) VI. The nonpayment petition cannot be sustained by proof of holdover. VII. No final order being possible, it is improper to grant a money judgment. VIII. Petitioner has only partially pleaded and has totally failed to prove on trial compliance with the applicable rules and regulations in nonpayment cases, which were a condition precedent to the commencement of the proceeding.

      Roy Berlin, Milton Berelson and Peter C. Demetri for respondent.
    I. The order of the Appellate Term granting permission to landlord to amend the petition was properly affirmed as a matter of law. (Cerana Apts. Corps. v. Solomon, 150 Misc. 906.) II. There was an irrevocable termination of the lease by the judgment of foreclosure and sale of the mortgaged premises. (Prudence Co. v. 160 W. 73d St. Corp., 260 N. Y. 205; Metropolitan Life Ins. Co. v. Childs Co., 230 N. Y. 285.) III. In view of the emergency rent laws, the termination of the lease operated to create a statutory tenancy. (Stern v. Equitable Trust Co., 238 N. Y. 267; Harlem Sav. Bank v. Cooper, 199 Misc. 1110; Klipack v. Raymar Novelties, 273 App. Div. 54; Commonwealth Mtge. Co. v. De Waltoff, 135 App. Div. 33; Da Costa v. Hamilton Republican Club, 187 Misc. 865.) IV. The remedy of summary proceedings is available to landlord. V. Landlord is entitled in the final order to a money judgment for all unpaid rent. VI. Appellant’s objection that landlord failed to prove compliance with the applicable rules and regulations in nonpayment cases is irrelevant to the issues before this court and in any event is unsound.
   Fuld, J.

United Security Corporation foreclosed a mortgage on an apartment house located on Central Park West in New York City and became the owner of the premises by purchase at the foreclosure sale on July 25, 1949. It found Isadore Suchman in possession of one of the apartments in the building, although he had been named as a party defendant in the foreclosure action and his rights under a lease granted by the former owner had been barred by the judgment of foreclosure and sale. Suchman having refused to pay rent, United, describing itself as “ landlord,” brought this nonpayment summary proceeding — pursuant to subdivision 2 of section 1410 of the Civil Practice Act — to evict him and to obtain a personal judgment against him for rent allegedly in arrears, from August 1, 1949, to June 30, 1950, amounting to upwards of $3,000.

The Municipal Court dismissed the petition, but, on appeal, the Appellate Term — by a divided vote — reversed and ordered a new trial upon the ground that appellant Suchman, by virtue of his continued occupancy after the foreclosure judgment and sale, became a statutory tenant, a status justifying the maintenance of a nonpayment summary proceeding by respondent. It was the view of the dissenting justice (Edeb, J.) that the conventional relationship of landlord and tenant had been terminated by the foreclosure judgment and sale; that the emergency rent laws did not abrogate ” the rule “ requiring landlord and tenant relationship to be shown in order to maintain summary proceedings and that United’s only recourse was by application for an order in the nature of a writ of assistance to obtain possession. On further appeal, the Appellate Division — two justices dissenting for the reasons assigned in the opinion of Edeb, J.” — ■ affirmed and granted leave to appeal. A stipulation for order absolute having been filed by appellant, the appeal is properly here (306 N. Y. 858), the question presented being whether there is such a relationship between the parties as to entitle respondent to institute and prosecute a summary proceeding for nonpayment of rent.

We start with the proposition that the lease pursuant to which appellant had originally gone into possession came to an end with, and was terminated by, the judgment of foreclosure and the ensuing sale. In consequence, appellant no longer had any rights under the lease and, conversely, the new owner of the premises, the purchaser at the foreclosure sale, could not look to that lease agreement to hold appellant liable either for the payment of rent or for the performance of any other stipulated obligation. (See Metropolitan Life Ins. Co. v. Childs Co., 230 N. Y. 285, 288-289.) And, prior to the enactment of the emergency housing legislation, if the tenant remained in possession without making any new agreement with the new owner, the latter had but one remedy, namely, a writ of assistance or — after 1942 when subdivision 6 was added to section 1411 of - the Civil Practice Act — its substitute, a holdover summary proceeding. (See, e.g., Commonwealth Mtge. Co. v. De Waltoff, 135 App. Div. 33, 35.) Continued possession and occupancy on the part of the tenant were not of themselves sufficient to spell out an agreement to pay rent or to create the traditional relationship of tenant and landlord. (See Castle v. Armstead, 168 App. Div. 466, 468-469, affd. 219 N. Y. 615.)

Clearly, then — and both the Appellate Term and the Appellate Division recognized it — the result reached below would not have obtained in the absence of the State Residential Rent Law (L. 1946, ch. 274, as amd.), and there is nothing in that enactment, either in letter or spirit, which furnishes support for the order under review.

No provision of the housing legislation purports to clothe with the status of tenant an occupant — made a defendant in the foreclosure action — who, though continuing in possession after the foreclosure sale, fails or refuses to pay rent. Subdivision 7 of section 2 defines tenant ” as tenant, subtenant, lessee, sublessee, or other person' entitled to the possession or to the use or occupancy of any accommodation.” (Emphasis supplied.) And subdivision 1 of section 5 declares that “ So long as the tenant continues to pay the rent to which the landlord is entitled, no tenant shall be removed from any housing accommodation with respect to which a maximum rent is in effect pursuant to this act * * * notwithstanding the fact that the tenant has no lease or that his lease, or other rental agreement has expired or otherwise terminated ”. (Emphasis supplied.) The key words are “ So long as * * * [he] continues to pay the rent to which the landlord is entitled,” and, since appellant did not pay any rent to respondent and the latter was not entitled to any, appellant’ was not entitled to the possession ” of the housing accommodations and, therefore, did not come within the statute’s definition of tenant.”

A regard for what was said in Stern v. Equitable Trust Co. (238 N. Y. 267) — which dealt with the emergency rent laws of the 1920’s and was the first instance in which the concept of statutory tenancy was considered by this court — points the necessity of continued payment of rent to assure continued possession under the statute (p. 269): “ The primary, but not the only, purpose of the Emergency Rent Laws was to prevent the wholesale eviction of tenants who were willing to pay a reasonable rent but who could not agree with their landlords as to the amount to be paid. By suspending possessory remedies under the lease, these laws extended, against the will of the landlord, the right of the tenant to remain in possession of the leased premises so long as he continued to pay what the Laws style ‘ a reasonable rental ’or‘a reasonable rent or price for their use and occupation.’ ” (Emphasis supplied.) And, beyond that, the court explicitly held that even one who is a tenant under the statute and has its protection remains in possession, not by virtue of any agreement, express or implied * * * but by virtue of the compulsion which the law exerts on the landlord to allow him to remain. * * * The tenant does not offer any proposition to the landlord upon which the conventional relation of landlord and tenant * * * can be inferred ” (238 N. Y., at pp. 269-270). In short, there being no offer and acceptance, no attornment of occupant to owner — indeed, not even a willingness to pay rent — the relation of landlord and tenant does not exist ” (p. 269).

If, then, there never was a landlord-tenant relationship between the parties to this appeal, a relationship traditionally necessary for the successful prosecution of a nonpayment summary proceeding, the question arises, is there some reason, based upon considerations of fairness or equity, why such a relationship should be — as respondent contends — “ implied or why, perhaps, the proceeding should be allowed even in the absence of such a relationship? We have found none.

The Residential Rent Law has deprived the purchaser at the foreclosure sale of no right or remedy which he had theretofore possessed, at least against an occupant who has failed or refused to pay rent. Today, just as before, he may still apply to the Supreme Court for a writ of assistance (Civ. Prac. Act, § 985) or to the Municipal Court for a warrant of eviction (Civ. Prac. Act, § 1411, subd. 6). Against neither application does section 5 offer the nonpaying-rent-occupant protection. There is, therefore, no need or reason to bestow on the foreclosure purchaser, deprived of no remedy, a right which he never before had.

The emergency housing legislation, it is, of course, unquestioned, was passed, not to benefit landlords ” or grant them additional rights or remedies, but to protect tenants and assure them continued possession if they choose — or, to use the statutory language, so long as they continue — to pay rent. It is a privilege granted the occupant, not a duty forced upon him, and, if he refuses to pay rent, thereby electing not to exercise his privilege, the foreclosure purchaser may not, willynilly, treat him as his tenant. It would be strange, indeed, to construe a statute meant to benefit tenants in favor of a ‘‘ landlord ” and find in its provisions basis or justification for subjecting an occupant — a foreclosed lessee such as appellant — to a personal judgment for rent, to which he could not have been subjected absent the statute, and for imposing upon him the status of tenant against his will.

The order of the Appellate Division and that of the Appellate Term should be reversed, with costs in those courts and in this court, and the final order of the Municipal Court dismissing the petition should be affirmed.

Desmond, J.

(dissenting). I would affirm here.

By the judgment in the mortgage foreclosure action to which defendant as tenant was a party, the tenant’s lease expired just as if its term had run out, and, were it not for the emergency rent laws, there would thereafter have been no landlord-tenant relationship and summary proceedings would not have been available (Greene v. Geiger, 46 App. Div. 210; Commonwealth Mtge. Co. v. De Waltoff, 135 App. Div. 33, 35). But the emergency rent laws gave an occupant with an expired lease the status of a “ tenant ” if he chose to remain in possession (Wasservogel v. Meyerowitz, 300 N. Y. 125, 132; see definition of “ tenant ” in State Residential Bent Law [L. 1946, ch. 274, as amd.], § 2, subd. 7, and prohibition of evictions where a lease has expired ” in § 5, subd. 1). Therefore, when defendant continued in possession after foreclosure, he was a “ tenant within the emergency rent control law ” (Harlem Sav. Bank v. Cooper, 199 Misc. 1110, 1116; see Pfalzgraf v. Voso, 184 Misc. 575; Da Costa v. Hamilton Republican Club, 187 Misc. 865). With the benefits of that relationship went its burdens (Wasservogel v. Meyerowitz, supra, p. 132) including the burden of summary proceedings in event of nonpayment of rent under article 83 of the Civil Practice Act. May a tenant stay in possession but escape the obligations of a tenant merely by failing to pay rent? The obligation to pay rent was not “ imposed ” on defendant — he assumed it by continued occupancy.

(In a sense, this proceeding might now be considered moot, since plaintiff has sold the building, but section 1425 of the Civil Practice Act seems broad enough to permit a judgment for rent, under these circumstances.)

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

Orders reversed, etc.

      . Appellant defended his failure to pay rent to respondent upon the ground that he had already paid the rent; he claimed — and it does not appear to he disputed — that, when he moved into the apartment in 1948, he paid the then landlord three years’ rent in advance.


author: Froessel, J.

text:
    Frances E. Switzer, Individually and as Administratrix of the Estate of Charles Switzer, Deceased, Appellant, v. Lester Aldrich, Defendant, and Warren Stiker, Respondent.
    Argued March 1, 1954;
    decided May 20, 1954.

      Judson R. Hoover and Oseo W. Peterson for appellant.
    The trial court erred in granting defendant Stiker’s motion for dismissal of plaintiff’s complaint and for a nonsuit, as to him. (Reese v. Reamore, 292 N. Y. 292; Shuba v. Greendonner, 271 N. Y. 189.)

      Asbury H. Harpending for respondent.
    The trial court prop, erly ruled that evidence pertaining to the ownership of the truck involved in the accident and the use of the registration plates thereon should he admitted and on the basis of this evidence properly granted a nonsuit and dismissal of plaintiff’s complaint as against defendant Stiker. (Reese v. Reamore, 292 N. Y. 292; Rathfelder v. Flag, 257 App. Div. 71, 282 N. Y. 563; Wyka v. L. A. D. Motors Corp., 264 App. Div. 890, 289 N. Y. 856; Le Roy v. Tremper, 267 App. Div. 387, 292 N. Y. 646.)
   Froessel, J.

Early in the morning of November 24, 1950, on Eoute 17 between the villages of Addison and Woodhull, in Steuben County, defendant negligently drove a panel truck partially onto the shoulder of the road and struck several men, who had set out on a hunting trip, one of whom was Charles Switzer. Twelve hours later, Switzer died of injuries resulting from the accident.

Four days previously, on November 20, 1950, defendant Stiker, an automobile dealer, had sold this truck under a contract of conditional sale to defendant Lester Aldrich and Carrie Aldrich, his mother, both of whom signed as purchasers. Lester, who was under twenty-one years of age at the time, took possession of the truck on the evening of that same day, at which time dealer’s license plates belonging to Stiker were attached thereto. These plates were still on the truck at the time of the accident.

Switzer’s widow instituted suit against both Lester Aldrich and Stiker. Her individual claim was dismissed without objection. Her case as administratrix, against Aldrich, who had driven the truck, resulted in a jury verdict in her favor, which was unanimously affirmed by the Appellate Division. Aldrich has not appealed from the affirmance. Her case as administratrix, against Stiker, was based on the theory that he was vicariously liable under section 59 of the Vehicle and Traffic Law, as owner of the truck. Throughout the trial, plaintiff’s counsel contended that Stiker could not deny his ownership, and objected to the introduction of evidence showing that Stiker was not the owner. These objections were uniformly overruled, and, when all sides had rested, on motion made by Stiker’s counsel, the Trial Judge dismissed the complaint as against his client on the ground that plaintiff had failed to prove Stiker to be the truck’s owner. The Appellate Division affirmed.

The proof introduced by plaintiff, establishing that the dealer’s license number on the truck had been issued to Stiker, constituted prima facie evidence that he was the truck’s owner (Ferris v. Sterling, 214 N. Y. 249, 253). Whether Stiker should have been permitted to rebut this presumption of ownership by proof that established violations of the statute and the commissioner’s regulations hereinafter referred to, in view of our decision in Shuba v. Greendonner (271 N. Y. 189), and especially in Reese v. Reamore (292 N. Y. 292) and Buono v. Stewart Motor Trucks (292 N. Y. 637), is the precise question presented on this appeal.

Upon the principle that it would be against public policy to permit one to assert his improper act, which was directly in violation of the motor vehicle registration laws, in order to avoid liability as an owner under section 59 of the Vehicle and Traffic Law, we held in Shuba v. Greendonner (supra) that one who has deliberately caused a motor vehicle to be registered in his name as owner will not be permitted to escape liability for injuries caused by that vehicle by proving that he was not in fact its owner. As we noted in that case, with reference to the system of motor vehicle registration in this State (271 N. Y. 189, 193), The Legislature has been very specific in making rules for the purpose of facilitating identification of an owner by the police and the public, fastening responsibility for injuries and requiring evidence of ability to respond in damages to injured persons * * * Strict regulations are enacted for the sale of an automobile and the registration thereof by the vendee and for the issuance and limited use of dealer’s plates.” (Emphasis supplied.) One exception to the general pattern of this registration system is a special privilege granted by the Legislature to automobile dealers authorizing them to lend their dealer’s plates to purchasers, burdened, however, with certain conditions. Unless a dealer complies with those conditions, he lends his plates without statutory authorization, and, therefore, illegally. Since it is the dealer himself who seeks to gain whatever advantages the privilege may afford him, it does not seem unreasonable to hold him to a strict compliance with the appendant conditions.

TMs principle was applied by us in Reese v. Reamore (supra) and Buono v. Stewart Motor Trucks (supra), where we held that an automobile dealer who permits a purchaser to use his dealer’s license plates, without complying with the safeguards established by statutes and administrative regulations, likewise may not deny his ownership in order to escape liability for an accident which occurred while the car still bore his dealer’s plates. In the Reese case (supra), the dealer who lent his plates had disregarded three of these safeguards: (1) he had failed to see that the purchaser made a timely application for registration; (2) he had delivered the plates to the vendee without first mailing the required verified statement to the commissioner; and (3) he failed to report nonreturn of the plates after the expiration of six days (Vehicle and Traffic Law, § 63).

As to the first safeguard mentioned, the statute authorizes the limited use of dealer’s number plates for five days, only “ if a proper application for registration and number plates for such vehicle ” has been made “ within twenty-four hours after he [the vendee] has taken possession thereof ”. Supplementing the statute, regulation 17, issued by the Commissioner of Motor Vehicles pursuant to subdivision 9 of section 62 of the Vehicle and Traffic Law, provides, so far as pertinent here, as follows: “A dealer plate may be loaned to a purchaser for a period not exceeding five days, provided the purchaser files an application for registration of the vehicle.” (N. Y. Official Compilation of Codes, Rules and Regulations [4th Cum. Supp.], p. 1124; emphasis supplied.) If, therefore, a dealer, before the purchaser has applied for registration, lends his plates for a longer period than twenty-four hours, he does so at his peril and runs a risk that the purchaser will, as here, fail to make timely application. In such event, the loan of the dealer’s plates beyond the twenty-four-hour period is illegal, for the dealer has failed to comply with one of the safeguards upon which his special privilege is conditioned.

In the instant case, Stiker permitted Aldrich to retain his plates without inquiring whether Aldrich had applied for registration within twenty-four hours; he never even informed Aldrich that the application was required to be filed within said period. As it developed, Aldrich did not file any application until four days after the accident and eight days after he took possession of the car, and the one he finally did file was not a ‘ ‘ proper application ’ ’ within the meaning of the statute because it failed to list his mother as a co-owner.

In addition, the simple and explicit language of the second safeguard above mentioned, namely, that A dealer ” “ shall not deliver to ” a vendee any dealer’s plates “ without first mailing to the commissioner a verified statement ” as required by the third paragraph of section 63 of the Vehicle and Traffic Law (emphasis supplied), was clearly not complied with in this case. Viewing the vague, equivocal and inconsistent statements of Stiker’s salesman in their most favorable light, the prescribed verified statement, similarly defective in failing to name Lester’s mother as co-owner, was mailed at least two days late, and definitely not before delivery of the dealer’s plates. Indeed, the Commissioner of Motor Vehicles never did receive notice of the true ownership of the motor vehicle.

Thus defendant Stiker failed to comply with two of the safeguards under consideration. That being so, the rule we enunciated in the Reese case {supra, pp. 296-297) is clearly applicable. There, after stating the general principle which prevents one from denying ownership of a car bearing his license plates, we explained the two circumstances under which the general principle does not apply: ‘6 Where the dealer complies with the simple and explicit requirements of the statute authorizing the use of his plates by others, or where the plates are used by others without his permission, express or implied, this principle has no application.” Neither of these exonerating circumstances is present in this case. We then affirmatively restated the rule which manifestly governs the case at bar (p. 297): “ If, however, the dealer permits the use of his plates in deliberate violation of the statute, then * * * he may not deny his ownership which he has falsely evidenced by permitting the unlawful use of his plates by another.” From this it follows that since Stiker failed to comply with the “ simple and explicit requirements of the statute ”, and since he did unlawfully permit Aldrich to use his plates, he should not have been permitted at the trial to deny successfully his ownership of the truck.

The judgment of the Appellate Division and that of the Trial Term should be reversed and a new trial granted, with costs to abide the event.

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

Judgments reversed, etc.


author: Desmond, J.

text:
    In the Matter of James Golden et al., Appellants, against Lazarus Joseph, as Comptroller of the City of New York, Respondent. In the Matter of Joseph Morace et al., Appellants, against Lazarus Joseph, as Comptroller of the City of New York, Respondent. In the Matter of William F. McLean et al., Appellants, against Lazarus Joseph, as Comptroller of the City of New York, Respondent.
    Argued March 3, 1954;
    decided May 20, 1954.

      Asher W. Schwarts for James Golden and others, appellants.
    I. Petitioners are laborers, workmen or mechanics upon public works within the meaning of section 220 of the Labor Law. (Matter of Pinkwater v. Joseph, 300 N. Y. 729; Matter of Gaston v. Taylor, 274 N. Y. 359.) II. The comptroller’s ruling that laborers, workmen or mechanics “ upon public works ” are only those who “ construct, reconstruct, maintain or repair ” public structures, is a misconstruction of section 220 of the Labor Law. (Matter of Miele v. Joseph, 280 App. Div. 408.) III. The comptroller’s ruling that stationary firemen do not maintain public works is in error and Ms refusal to take testimony in proof thereof is reversible error. (Austin v. City of New York, 258 N. Y. 113.) IV. Assuming that the work of stationary firemen does not maintain public works, it was reversible error to refuse to consider evidence showing that this work includes the repair of public structures as related work and thus falls within the jurisdiction of the comptroller so limited by him.

      Roy P. Monahan and James T. Bredin for Joseph Horace and others, appellants, and William F. McLean and others, appellants.
    I. Petitioners are laborers, workmen and mechanics upon public works within the meaning of section 220 of the Labor Law. (Matter of Miele v. Joseph, 280 App. Div. 408, 305 N. Y. 667; Matter of Pinkwater v. Joseph, 300 N. Y. 729; Matter of Flannery v. Joseph, 300 N. Y. 149; Matter of Dinan v. Joseph, 304 N. Y. 696; Matter of Heaney v. McGoldrick, 286 N. Y. 38; Matter of Watson v. McGoldrick, 286 N. Y. 47; Matter of Smith v. Joseph, 300 N. Y. 516.) II. Petitioners have rights by statute to receive prevailing rates of wages. (Matter of Corrigan v. Joseph, 304 N. Y. 172; Matter of Kornbluth v. Reavy, 261 App. Div. 60; Matter of Simons v. McGuire, 204 N. Y. 253; People ex rel. Schau v. McWilliams, 185 N. Y. 92; Matter of Rohr v. Kenngott, 176 Misc. 838; People ex rel. Davie v. Lynch, 164 App. Div. 517; Matter of Sippell v. Dowd, 191 Misc. 558, 274 App. Div. 1027; Matter of Poss v. Kern, 263 App. Div. 320; Matter of Woods v. Finegan, 246 App. Div. 271; Matter of O’Brien v. Delaney, 255 App. Div. 385, 280 N. Y. 697; Matter of Wittekind v. Kern, 170 Misc. 939, 256 App. Div. 918, 281 N. Y. 701; Matter of Kroll v. Clauson, 297 N. Y. 698; Maltbie v. Comprehensive Omnibus Corp., 190 Misc. 1017.) III. The order violates petitioners’ rights under the Fourteenth Amendment of the United States Constitution.

      Noah Seedman for Michael Hayes and others, appellants.
    The determination of the comptroller is based on partial, prejudicial and erroneous rulings and contrary to the law, and should therefore be reversed. (Matter of Heaney v. McGoldrick, 286 N. Y. 38.)

      Sidney A. Fine and Morris Weissberg for Clem B. Arminas and others, appellants.
    Petitioners, stationary firemen in public buildings, are laborers, workmen or mechanics upon public works within the meaning of section 220 of the Labor Law. (McCarthy v. Mayor of City of N. Y., 96 N. Y. 1; McAvoy v. City of New York, 52 App. Div. 485, 166 N. Y. 588; Matter of Gaston v. Taylor, 274 N. Y. 359; Matter of Miele v. Joseph, 280 App. Div. 408, 305 N. Y. 667; Drake v. State of New York, 144 N. Y. 414; Matter of Heaney v. McGoldrick, 286 N. Y. 38; Wright v. State of New York, 223 N. Y. 44; Smith v. State of New York, 143 Misc. 38; Austin v. City of New York, 258 N. Y. 113; Palmer v. Van Santvoord, 153 N. Y. 612; Matter of Stryker, 158 N. Y. 526; Matter of Corrigan v. Joseph, 304 N. Y. 172.)

      Lester G. Knopping and John H. Scully for James Molloy and others, appellants.
    I. Appellants are laborers, workmen or mechanics engaged in the construction, reconstruction, maintenance and repair of public works within the contemplation of section 220 of the Labor Law. (Matter of Miele v. Joseph, 305 N. Y. 667; Austin v. City of New York, 258 N. Y. 113; Matter of Flannery v. Joseph, 300 N. Y. 149; Bohnen v. Metz, 126 App. Div. 807, 193 N. Y. 676; Ewen v. Thompson-Starrett Co., 208 N. Y. 245.) II. The rules and regulations of the municipal civil service commission classify appellants into Part 38 of the competitive class and fix the wages therein <£ at the prevailing rate of wages * * * as determined by law ”. (Matter of Corrigan v. Joseph, 304 N. Y. 172; Matter of Sullivan v. Williams, 303 N. Y. 871.)

      David A. Savage and Donald A. Savage for Louis Molnar and others, appellants.
    Petitioners are laborers, workmen, and mechanics upon public works within the meaning of section 220. (Matter of Pinkwater v. Joseph, 300 N. Y. 729; Kirschbaum Co. v. Walling, 316 U. S. 517; Ullo v. Smith, 177 F. 2d 101; Martino v. Michigan Window Cleaning Co., 327 U. S. 173; Chicago Cleaning Co. v. Industrial Bd. of Illinois, 283 Ill. 177; Connor v. City of Manchester, 73 N. H. 233.)

      Adrian P. Burke, Corporation Counsel {Alfred Weinstein and Seymour B. Quel of counsel), for respondent.
    I. An employee engaged to perform the duty of firing boilers is not engaged in construction or maintenance. Accordingly, he • is not a workman “upon * * * public works” within the meaning of section 220 of the Labor Law. (Matter of Pinkwater v. Joseph, 300 N. Y. 729; Matter of Dinan v. Joseph, 304 N. Y. 696; Matter of Miele v. Joseph, 280 App. Div. 408, 305 N. Y. 667.) II. In answering the question as to whether the petitioners are engaged in construction or maintenance “ the civil service description of an employee’s duties must be determinative.” (Matter of Flannery v. Joseph, 300 N. Y. 149; Wood v. City of New York, 274 N. Y. 155; Manning v. City of New York, 150 Misc. 292; Doyle v. City of New York, 148 Misc. 503; Maystrik v. City of New York, 165 Misc. 327; McCunney v. City of New York, 40 App. Div. 482; Farrell v. City of Buffalo, 118 App. Div. 597.) III. A man who fires boilers is not engaged in the maintenance of public works. (McGraw v. City of Gloversville, 32 App. Div. 176; Farrell v. Board of Educ. of City of N. Y., 113 App. Div. 405; Carter v. City & County of Denver, 114 Col. 33.) IV. No question of due process is involved.
   Desmond, J.

All the petitioners-appellants are employed by the City of New York under the civil service title of “ Stationary Fireman ’ ’. Their appeal here is by our leave from a unanimous order of the Appellate Division, First Department, confirming a determination of the comptroller of the City of New York in which, after hearings, he dismissed complaints filed by petitioners under section 220 of the Labor Law. The comptroller held that petitioners are not in such employment as entitles them, under that statute, to the “ prevailing rate of wages ” mandated by the statute to be paid to “ laborers, workmen or mechanics ” on public works. The argument against petitioners runs like this:

(1) That section 220 is available only to persons employed in the construction, maintenance or repair of public works (see Matter of Pinkwater v. Joseph, 300 N. Y. 729; Matter of Dinan v. Joseph, 304 N. Y. 696; Matter of Miele v. Joseph, 305 N. Y. 667).

(2) That the test of whether or not a city employee is engaged in the construction, maintenance or repair of public works is the municipal civil service commission description of his job duties (Matter of Flannery v. Joseph, 300 N. Y. 149; Matter of Dinan v. Joseph, supra).

(3) That the civil service description of the job of stationary fireman: To fire high pressure boilers with coal or oil; operate by hand low pressure boilers, burning either No. 5 or No. 6 oil; perform related work ”, describes the operation of a mechanical facility only, and not construction, maintenance or repair work.

(4) That, because of the above, evidence was inadmissible, and the comptroller excluded it, to show that the actual job duties of these petitioners included the making of repairs on boilers.

Despite the exclusion from evidence, at the hearings, of proffered proof that these men regularly made repairs on the boilers they fired, the record before us contains allegations and admissions that it is regularly a part of the duties of such stationary firemen to make some of the repairs on their boilers even though there is a separate civil service classification of “ Boilermaker ”.

Begardléss of the complexity of much of the case law as to the impact of section 220, this at least seems to be settled: that those whose work has to do with the construction and maintenance of the fabric and essential parts of public buildings are entitled to prevailing wages even though their connection with building construction and maintenance is as minimal as that of the sign painters and sign letterers who were held entitled to prevailing wages in Matter of Miele v. Joseph (supra). We think these petitioners are entitled to no less, and for these reasons:

(1) It is undisputed that they do regularly make boiler repairs — that is, they repair heating facilities which are necessary parts of the buildings.

(2) In so doing, they are not working “ out of ” their civil service titles, as was the case in Matter of Flannery v. Joseph (supra).

(3) The job definition here involved includes not only firing and operating boilers but also related work ” and it is undisputed that the related work includes a substantial amount of boiler repairs.

(4) These petitioners, as stationary firemen, have been classified by the municipal civil service commission in Part 38 of the competitive class, in a salary grade at the prevailing rate of wages * * * as determined by law ”. We have indicated that grading is a controlling factor in the fixing of compensation for incumbents of positions in the graded services of the competitive class (see Matter of Corrigan v. Joseph, 304 N. Y. 172, 182; also Civil Service Law, § 6). While the validity of such grading may be challenged in a direct suit against the officials who adopted and approved the grade, such grading except in such a suit, must be deemed valid in any subsequent administrative or judicial proceeding wherein any collateral attempt is made to question the legality of the grading (see Matter of Corrigan v. Joseph, supra, p. 186, note). Therefore, the grading of the petitioners in Part 38 of the competitive class at the prevailing rate of wages, not directly challenged, entitles them to section 220 relief, procedurally, rather than relegating them to suits at law for those same prevailing wages.

(5) Section 220 itself contains, in its subdivision 4 (par. a), an exclusion of “ Stationary firemen in state hospitals ”, which certainly suggests that other stationary firemen, like these petitioners, are under the statute.

(6) The work of petitioners is at least as closely related to the preservation and maintenance of physical structures as were the sign painters in Matter of Miele v. Joseph {supra).

The order appealed from should be reversed, with costs, and the matter remitted to respondent comptroller, for further proceedings not inconsistent with this opinion.

Lewis, Oh. J., Conway, Dye, Fuld and Froessel, JJ., concur; Van Voorhis, J., taking no part.

Order reversed, etc.


author: Van Voorhis, J.

text:
    In the Matter of the Arbitration between Lawrence Essenson, Respondent, and Upper Queens Medical Group, Appellant.
    Argued March 3, 1954;
    decided May 20, 1954.

      Abraham M. Silverman for appellant.
    I. No bona fide issue for arbitration has been tendered, and, as a matter of law, arbitration must be denied. (Matter of International Assn. of Machinists [Cutler-Hammer, Inc.], 271 App. Div. 917, 297 N. Y. 519; Matter of Kosoff [“ Jones ”], 276 App. Div. 621; Matter of General Elec. Co. [United Elec. Radio & Mach. Workers], 300 N. Y. 262; Alpert v. Admiration Knitwear Co., 304 N. Y. 1; Matter of Minkin [Halperin], 279 App. Div. 226.) II. Paragraph Fifteenth of the agreement, having been fully complied with by the group, the vote of expulsion is final and binding.

      Sidney Advocate and E. Edan Spencer for respondent.
    Substantial issues were raised in the proceedings held before the courts below. (Matter of Lipman [Haeuser Shellac Co.], 263 App. Div. 880, 289 N. Y. 76; Matter of Zybert [Dab], 276 App. Div. 1070, 301 N. Y. 632; Matter of Raphael [Silberberg], 274 App. Div. 625.)
   Van Voorhis, J.

The order appealed from affirms an order directing the parties to proceed to arbitration. Appellant contends that there is no arbitrable dispute, and that for this reason the application for arbitration should have been denied. The issue arises over the expulsion of respondent, a physician, from a partnership known as Upper Queens Medical Group, the appellant. Appellant is affiliated with Health Insurance Plan of Greater New York, commonly known as H. I. P. The latter organization was established under legislative act to provide medical services to its subscribers on a prepaid premium basis. H. I. P. serves its subscribers through a number of doctor-partnerships, of which appellant is one. Appellant’s articles of copartnership provide that “ Any partner may be expelled from the partnership on charges brought by any other partner of any act or omission adversely affecting the partnership. When such expulsion is completed as hereinbelow provided, such partner’s rights shall be terminated and he shall have no further interest of any kind in the partnership or the partnership assets, except as herein provided.” This language is contained in paragraph Fifteenth of the articles, which continues by prescribing the procedure to be followed in the case of proceedings for the expulsion of members, viz., by majority vote of the executive committee followed by a three-quarters vote of the members present at a membership meeting.

The articles of copartnership contain a separate paragraph numbered Twenty-second which reads: “ Should any controversy arise with respect to the interpretation of any of the terms of this agreement or with respect to the rights of any partner pursuant to this agreement, such controversy shall be submitted to arbitration ”.

Detailed charges were preferred against respondent, including that “ As head of the Associated Physicians Medical Group, you have performed acts which are in direct competition with, and contrary to, the interests of the Upper Queens Medical Group in particular and the Health Insurance Plan of Greater New York in general.”

At a meeting of the executive committee it was voted that respondent be expelled, and thereafter this action was confirmed by a three-quarters vote of the membership present at a membership meeting duly called and held. The procedural deficiencies which are alleged by respondent in the conduct of these meetings are without any evidence to support them, and the record indicates, without contradiction except by mere conclusions in an affidavit, that the prescribed procedure was followed.

Respondent Essenson has not substantiated by any evidentiary facts his charge that illegal influence was brought to bear on the membership in voting.

Respondent contends that an arbitrable dispute exists for the reason that appellant adduced no evidence in support of the charges that he was guilty of conduct inimical to the interest of appellant and H. I. P. Respondent contends that charges are not proof, and appellant contends that respondent has not set forth any evidentiary facts either. That requires an analysis of what is actually before the court. The partnership agreement contains an article (Fifteenth) which has been quoted previously which provides a procedure for trial and expulsion from membership. That procedure has been followed to the letter, and respondent has been expelled in accordance therewith. He now seeks an arbitration, as an alternative to an article 78 proceeding, to review and overrule the action taken by the executive committee and membership resulting in his expulsion. It is not to be presumed, without proof, that the executive committee and membership of this organization acted without .foundation for their charges. If there had been no arbitration clause in the articles of copartnership, and respondent had resorted to an article 78 proceeding to set aside the action whereby he was expelled, the court would not have assumed that the proceedings were erroneous in the absence of proof that they were. So long as the practice was shown to conform to that required by the agreement, a court would put the petitioner to his proof to show that there was some basis for contending that there were no grounds for his expulsion. Here the question to be arbitrated, if there be any, is not whether respondent should be expelled from Upper Queens Medical Group. It is whether the executive committee and the membership acted contrary to the articles of copartnership in expelling him. He is bound to show, at least prima facie, that there were no grounds for his expulsion, or that the grounds which were adduced were unsubstantiated and that he was expelled in bad faith, or something of that nature. Instead of going forward by producing such evidence, he asks the courts to assume that whatever was done to him was wrong, and accuses the partnership of not meeting his petition for arbitration with a detailed statement of facts showing what he did and that it was inimical to the interests of the partnership. The burden was on him, rather than upon the partnership, to show that there is an arbitrable dispute here. The charges against him on which he was expelled are not limited to talking against H. I. P., but it is charged that he was head of a competing organization. ■In petitioning for arbitration, he does not even attempt to refute that charge. If substantiated, it would furnish substantial ground for his expulsion from the copartnership irrespective of the other charges.

In view of the omission of respondent to set forth any facts indicating that the grounds for his expulsion were not substantiated, and in the light of the record which shows that the procedure for expulsion provided by the articles of copartnership was pursued, there is no more basis for an arbitrable dispute than was present in Matter of International Assn. of Machinists (Cutler-Hammer, Inc.) (271 App. Div. 917, affd. 297 N. Y. 519), Matter of General Elec. Co. (United Elec. Radio & Mach. Workers) (300 N. Y. 262), Alpert v. Admiration Knitwear Co. (304 N. Y. 1), nor other similar decisions holding that arbitration will not be compelled in order to change contract rights or liabilities.

No decision is made concerning whether, if evidence had been presented indicating that respondent had been expelled without cause or contrary to the procedure prescribed by the articles of copartnership, arbitration would have been the exclusive remedy in place of a special proceeding instituted under article 78 of the Civil Practice Act. Inasmuch as it is held that no arbitrable dispute is presented in any event, the question is not reached whether it would have been such a controversy as is rendered subject to arbitration contract by section 1448 of the Civil Practice Act.

The order of the Appellate Division and that of Special Term should be reversed, and respondent’s motion for an order requiring an arbitration should be denied, with costs in all courts.

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

Orders reversed, etc.


author: Fuld, J.

text:
    The People of the State of New York, Respondent, v. George Allen Ward, Appellant.
    Argued April 12, 1954;
    decided May 20, 1954.

      Robert P. Lewis for appellant.
    I. Chemical tests for alcohol must be made according to the procedure set forth in section 71-a of the Vehicle and Traffic Law if the results of such test are to be used in a prosecution under subdivision 5 of section 70. (Matter of Schutt v. Macduff, 205 Misc. 43; Bovey v. State of New York, 197 Misc. 302.) II. Defendant’s right to have his own physician is mandatory and he must be so advised. (Matter of Hudson v. Mealy, 176 Misc. 696; People v. Serences, 255 App. Div. 587; Matter of Boulevard Theatre & Realty Co., 195 App. Div. 518; People v. Smith, 253 Ill. 283; Rochin v. California, 342 U. S. 165.)

      Theodore M. Coburn, District Attorney (Gerald Saperstein of counsel), for respondent.
    I. The chemical test was made according to section 71-a of the Vehicle and Traffic Law. (People v. Defore, 242 N. Y. 13.) II. It is not mandatory for an arresting officer to advise defendant he is entitled to have a physician of his own choosing administer a chemical test in addition to the one administered at the direction of the peace officer. (McCluskey v. Cromwell, 11 N. Y. 593; Matter of Rathscheck, 300 N. Y. 346; Meltzer v. Koenigsberg, 302 N. Y. 523.) III. Defendant voluntarily submitted to a blood test. No threats, compulsion or bodily force was used. (Rochin v. California, 342 U. S. 165; People v. Spears, 201 Misc. 666; People v. Defore, 242 N. Y. 13.)
   Fuld, J.

Observed driving his truck in a highly erratic fashion, forcing oncoming cars off the road, George Ward was stopped and questioned by two state troopers who had followed him for about a quarter of a mile. When Ward, at their direction, stepped down from his vehicle, the officers noticed that his hands were “ shaking and fumbly,” that he “ weaved ” as he stood talking to them, that his speech was “ slurred,” that he mumbled “in an incoherent manner ”, and that his breath smelled of alcohol. Believing that he might have been drinking to excess, the officers asked him — and, according to Ward, in a “ gentlemanly manner ” — if he would submit to a blood test to determine whether he was drunk, and he said that he would. The test was administered, and analysis disclosed that the alcoholic content of his blood amounted to .183% — substantially more than the .15% stamped by statute as “ prima facie evidence that the defendant was in an intoxicated condition ” (Vehicle and Traffic Law, § 70, subd. 5, par. [c]).

Upon appeal, following his conviction of driving while intoxicated (Vehicle and Traffic Law, § 70, subd. 5), defendant Ward disputes, not the sufficiency of the proof to establish his guilt, but the admissibility of the evidence determining the quantity of alcohol in his blood.

Section 71-a of the Vehicle and Traffic Law (as added by L. 1953, ch. 854) provides, in part, that

“ 1. Any person who operates a motor vehicle * * * in this state shall be deemed to have given his consent to a chemical test of his breath, blood, urine, or saliva for the purpose of determining the alcoholic content of his blood provided that such test is administered at the direction of a police officer having reasonable grounds to suspect such person of driving in an intoxicated condition. If such person refuses to submit to such chemical test the test shall not be given but the commissioner shall revoke his license * * * to drive * * *.
* # #
“ 4. The person tested shall be permitted to have a physician of his own choosing administer a chemical test in addition to the one administered at the direction of the police officer.”

While recognizing that nothing on thé face of the section requires that the suspected inebriate be apprised of the provisions permitting him to refuse to take the test and to insist upon an additional analysis by his own physician, defendant contends that such a requirement is the necessary implication of the statutory scheme. In short, it is defendant’s submission that the statute required that he be advised (1) that it was his right to refuse to submit to a blood test — being told at the same time that, if he did refuse, his license would be revoked — and (2) that it was his privilege to have a physician of his own choosing conduct the test in addition to the one given under the direction of the police.

We need not now, however, consider whether such notice or advice must be given, or the effect, if any, of a failure to give it. It is sufficient to decide that section 71-a has no application where, as here, the defendant voluntarily submitted to the test and there is no claim or hint of coercion.

In 1941, the legislature amended subdivision 5 of section 70 of the Vehicle and Traffic Law permitting courts to admit evidence of the amount of alcohol in the defendant’s blood * * * as shown by * * * chemical analysis ”. A number of communities in this state subsequently provided for the use of these tests on persons suspected of driving while intoxicated. (See Interim Report of New York State Joint Legislative Committee on Motor Vehicle Problems, Chemical Tests for Intoxication, N. Y. Legis. Doc. 1953, No. 25, pp. 15-16; Report of Committee on Tests for Intoxication, National Safety Council [1952] Uses of Chemical Tests for Intoxication in 1951, passim; cf. People v. Spears, 201 Misc. 666; People v. Barnes, 197 Misc. 477.) While there was no question of admissibility where the tests were given with a defendant’s consent, there was doubt about compelling submission. (See 1941 Atty.-Gen. 143,146; see, also, e.g., Ladd and Gibson, The Medico-Legal Aspects of the Blood Test to Determine Intoxication, 24 Iowa L. Rev. 191, 245-251.)

Disturbed by the growing menace of the intoxicated driver in this state and the relatively slight use that was being made of chemical tests, despite their acknowledged efficacy in reducing drunken driving, the Joint Legislative Committee on Motor Vehicle Problems in 1953 recommended the adoption of section 71-a. (See Interim Report of Joint Legislative Committee, op. cit., passim; see, also, Message of Governor Dewey approving the law, McKinney’s 1953 Session Laws of New York, p. 2127.) This new section was directed at the problem of compelling submission to the test; it was concerned, not with those who consented to take the test, but with those who were required to submit. (See Interim Report of Joint Legislative Committee, op. cit., pp. 17, 19, 35; see, also, address delivered by Professor Weinstein, Director of Legislative Committee’s Study, during Proceedings of Second International Conference on Alcohol and Road Traffic [1953] entitled, Legislation, Alcohol and Traffic in the United States, p. 11.) Fully cognizant of the fact that tests voluntarily taken had been repeatedly used in the courts of this state (see Interim Report of Joint Legislative Committee, op. cit., pp. 15-16), the Committee’s purpose, obviously, was neither to circumscribe nor limit the use of such tests in evidence.

In point of fact, it is difficult to perceive any necessity for the protections embodied in section 71-a where the driver freely volunteers to take the test and have his blood analyzed (cf. Matter of Schutt v. Macduff, 205 Misc. 43, 51-52), and, in any event, there was ample reason and precedent for a statutory scheme distinguishing between the evidentiary effect of a voluntary and an involuntary submission. In the field of confessions, for instance, the distinction between the admissible and the inadmissible is in a large measure written in terms of the difference between the voluntary and the involuntary. And where evidence seized without a warrant is inadmissible, it is accepted that a “ warrantless search-and-seizure with consent of the party defendant is not within the rule.” (8 Wigmore on Evidence [3d ed., 1940], § 2184a, p. 41; see, also, United States v. Williams, 161 F. 2d 835, 837; United States v. Bianco, 96 F. 2d 97, 98.)

We recognize, of course, that the line between consent and coercion is hard to draw whenever a policeman makes a request, however considerate or “ gentlemanly ”, upon one who, having drunk to excess, has become intoxicated. (See Ladd and Gibson, op cit., pp. 191, 245-251. And compare the content of the term voluntary ” in search and seizure cases, e.g., Judd v. United States, 190 F. 2d 649, 650-651; Dade v. State, 188 Okla. 677, 679-680; with that in confession cases, e.g., Stein v. New York, 346 U. S. 156, 186.) For this reason, among others, it is undoubtedly the better practice for the police to notify the person of his rights under section 71-a whenever there may be a charge of coercion. In the case before us, however, there was no claim, and no one has suggested, that the submission was anything but voluntary.

The judgment should be affirmed.

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

Judgment affirmed.

      . Subdivision 1 of the statute was amended in March of this year to provide that the- consequence of license revocation follows uppn the suspect’s refusal to submit to the test, but only if he has first “ been placed under arrest and [has] thereafter been requested [by the arresting police officer] to submit to such • • * test”. The amendment also added that the test be administered “in accordance with the rules and regulations established by the police force of which” the police officer "is a member” (L. 1954, ch. 320).