author: Dye, J. Conway, J.

text:
    In the Matter of Luke A. Burns, Appellant, against Milton A. Wiltse, Respondent, and Manford H. Jerome et al., as Commissioners of Election of Jefferson County, et al., Respondents.
    Argued November 2, 1951;
    decided November 2, 1951.

      Borden H. Mills for appellant.
    I. Even though there is no specific provision in the Election Law forbidding a person from running for two public offices at the same election, such prohibition is implicit in said law, and to permit a person’s name to appear on the ballot for two county offices, particularly when they are incompatible, would constitute a fraud on the electorate. (Matter of Lindgren, 232 N. Y. 59; People v. Purdy, 154 N. Y. 439; Matter of Ryan, 172 Misc. 105, 257 App. Div. 1068.) II. The order appealed from is contrary to the spirit and intent of the Election Law. (Matter of McCall, 289 N. Y. 104; People ex rel. Furman v. Clute, 50 N. Y. 451.) III. Petitioner is a “ candidate aggrieved ” within the meaning of the applicable statute. (Matter of Dimentstein [Frankle], 184 Misc. 126, 255 App. Div. 722; Matter of Broderick v. Knott, 197 Misc. 114, 276 App. Div. 960, 301 N. Y. 723.)

      Lawrence Conboy for Milton A. Wiltse, respondent.
    I. Petitioner is not a “ candidate aggrieved ” within subdivision 2 of section 330 of the Election Law. (Matter of Lanni v. Grimes, 173 Misc. 614; Matter of Harvie, 122 Misc. 669; Matter of Corn v. Cohen, 181 Misc. 832, 267 App. Div. 891; Matter of Dillon v. Roberts, 193 Misc. 6; Matter of Deitz, 87 Misc. 610, 165 App. Div. 298, 214 N. Y. 216; Matter of Dimentstein [Frankle], 184 Misc. 126, 255 App. Div. 722; Matter of Dolphin, 240 N. Y. 89.) II. Respondent is entitled to be nominated as County Judge and District Attorney on the same ballot. III. Dual nominations for incompatible offices do not contravene public policy. IV. The common law permits dual nominations for incompatible offices on one ballot. (Misch v. Russell, 136 Ill. 22; State v. Waechter, 332 Mo. 574; Matter of Maxman, 49 Pa. D. & C. 141.) V. Under section 411 of the County Law, respondent is eligible for the nomination to the office of County Judge. (Matter of Clancy v. Sloan, 273 N. Y. 152.)

      Laurence H. Kissel, County Attorney, for Commissioners of Election of Jefferson County, respondents.
   Dye, J.

At the 1951 fall primary the Republican, Democratic and Liberal parties in Jefferson County nominated Milton A. Wiltse, Esq., as their candidate for the office of District Attorney. At the same primary the Republican and Democratic parties also nominated Hon. Crandall F. Phillips as their candidate for the office of County Judge of Jefferson County. Thereafter and on October 16, 1951, Judge Phillips died. On October 23, 1951, the Republican County Committee duly met to fill the vacancy thus created (Election Law, § 140; County Committee rules as filed with the Secretary of State, October 5, 1947). The names of Milton A. Wiltse and Luke A. Burns, the petitioner herein, were presented for consideration. A vote was taken and Mr. Wiltse won by vote of 133 to 51. Prior to the filing of the certificate of nomination, the defeated aspirant Burns initiated the within proceeding by the filing of a petition in which he sought to permanently restrain the officers of the Republican County Committee from filing a certificate of nomination of the said Wiltse as Republican candidate for the office of County Judge of Jefferson County, and to restrain the Commissioners of Election of Jefferson County from receiving and filing the said certificate and for an order directing the Republican County Committee to reconvene and nominate some person who if elected, may qualify as such county judge and who is a proper person for whom votes may be cast at the said election for the said office in accordance with the spirit and intent of the election law ”.

We are agreed that the petitioner, having been considered at the meeting of the County Committee to fill the vacancy, is properly before the court as an aggrieved party even though he did not file written objections (Election Law, § 145), for indeed he could not as the certificate of nomination had not as yet been filed (Election Law, § 140), and even though everyone concedes the action taken by the committee was done in good faith, free from fraud and irregularity (Election Law, § 330. subd. 2).

This leaves for review the sole question of whether or not the said Wiltse may also at this time be nominated as a candidate for the office of County Judge of Jefferson County, or to state it in the abstract, whether a person otherwise qualified to hold either one of the two offices is entitled to have his name on the same ballot for both offices.

We find no specific constitutional or statutory authority that prohibits or permits the nomination of the same person as a candidate for the office of District Attorney and County Judge at the same election. Nonetheless, we are convinced that the spirit and intent of the Election Law forbids such a dual nomination particularly when, as here, the candidate may not, if elected, take and hold both offices (County Law, § 411).

The candidate Wiltse, by force of circumstances is in a difficult position. He may not relieve himself of his obligation to run for the office of District Attorney. Mere saying that he does not intend to qualify for such office, if elected, is no solution. His name is on the ballot as the candidate of all political parties for such office. It may not now be removed as the time for declination fixed by the Election Law expired on September 10, 1951. Nothing may now be done about it and he must run (Election Law, § 314, subd. 14; cf. Matter of McDonald v. Heffernan, 196 Misc. 465, affd. 275 App. Div. 1054, affd. 300 N. Y. 488). Being without opposition except for possible write-ins on election day, his election to that office seems a foregone conclusion.

Eligibility at the time of election as distinguished from qualification to take and hold office is not a new problem. It has been before us in a situation where certain individuals then confined in State prison with loss of civil rights, sought to have their names appear on the ballot as candidates for public office. Even though there was nothing in the Election Law prohibiting such nomination, we nonetheless held that such persons were ineligible on the general principle that an eligible nominee should be one qualified to take and hold office if elected, for, in the words of Crane, J., it does “ seem reasonable to suppose that the election machinery, which is run at such a great expense to the public, is for the purpose of doing a useful and not a useless thing.” (Matter of Lindgren, 232 N. Y. 59, 64; emphasis supplied.) In other words, an election under such circumstances would be a futility. The principle thus enunciated is particularly apt in the'present controversy. Wiltse as a dual candidate, may not legally qualify for both offices — one or the other must be abandoned but which one would depend upon the whim and option of the candidate without reference to the will of the people who voted for him. The desirability of applying such principle has been recognized in this court for a long time, although not heretofore decisive of a given case. We refer to People v. Purdy (154 N. Y. 439) which involves section 50 of chapter 569 of the Laws of 1890 (now with slight amendments in language, without change in substance, Town Law, § 23). The pertinent provision then being that “no * * * trustee of a school district * * * shall be eligible to the office of supervisor of any town ”. The defendant Purdy while a school trustee was nominated for supervisor and was elected. His right to the office was challenged and on appeal we construed the statute as relating to eligibility to run for election rather than a disqualification for the holding of the office, as the latter impediment might be removed by an act of the candidate or the happening of an event, before actually talcing office. The words of Denis O’Brien, then an Associate Judge, spoken for the court are as pertinent now as they were then. We may read in the opinion (pp. 442-443): “ A public statute relating to the qualifications of public officers should never be so construed as to * * * promote a public mischief or to render the action of the voters at the election abortive. It should * * * be given such a construction as to enable the electors to act intelligently, and to accomplish * * * the purpose that they may have in view. If it be held that the disqualification * * * applies only to the holding of the office, and not to the capacity of the candidate for election, then the electors can never know when voting * * * for the office * * * whether they will succeed in filling the office or not Though the action of the electors may be unanimous, the result must depend upon the future action of the candidate himself. Unless he resigns * * * there has practically been no election, and the office is left vacant, though the people intended to fill it. The vote in such a case may be said to be conditional upon the resignation of another office by the candidate voted for. He may refuse or fail to resign, and then the action of the voters is nugatory. * * *

The statute * * does not contemplate that a person who is disqualified to hold the office may, nevertheless, be lawfully elected upon the chance that subsequently he may, by his own act * * * remove the disqualification, and thus become entitled to fill it. The better rule is that the electors * * * must be confined to the selection of such persons only as are not then under any legal disqualification to exercise its powers * * * . The electors can then know that when the choice is made and legally declared the object for which the election was held has been accomplished, and that there is no legal obstruction in the way to prevent their will * * * from becoming effective.”

Section 411 of the County Law, explicitly forbids a County Judge from holding another elective county office. This, we believe, renders a person ineligible as a candidate for County Judge if at the same election his name appears on the ballot as the validly nominated candidate for another county office inasmuch as the statute prevents his qualifying for both offices. To hold otherwise militates against a fundamental principle attendant upon the exercise of the election franchise, namely, the right of every citizen to vote for all officers that now are or hereafter may be elective by the people (N. Y. Const., art. II, § 1; emphasis supplied.)

When the People adopted this constitutional provision to assure the full and effective exercise of the elective franchise we believe they intended that “ officers * * elective by the people ” were those who at the time of election could, if elected, take and hold the office. In other words, that in the exercise of the election franchise the electors placed a limitation on the availability of candidates for public office to those persons who, if elected, could legally qualify to take and hold it (Matter of Lindgren, supra; People v. Purdy, supra; Abrahams’ New York Election Law, p. 181; Gassman’s .Election Law, § 85, p. 355). Prohibition of a dual nomination is not a denial of the right of the electors to nominate persons of their own selection nor does it constitute interference with the functioning of the Election Law respecting nominations. Such a ruling is not disfranchisement yet that is exactly what would happen whenever electors vote for a candidate who may not legally qualify, if elected, to take and hold both offices to which he had been nominated (County Law, § 411). An electian under such circumstances would be illusory and sham if not an. actual fraud upon the electorate and should not be permitted (cf. Matter of Ryan, 172 Misc. 105, affd. 257 App. Div. 1068).

The order of the Appellate Division should be reversed and the order of Special Term modified by directing that the meeting of the County Committee therein directed to be reconvened on October 29, 1951, be held at or before 10:00 a.m. on November 5, 1951, and as so modified, affirmed.

Conway, J.

(dissenting). I regret that I cannot agree with my associated in the decision about to be made and the matter is so important that I feel I should state my views.

We must remember that the people — the electors — are the source of all power over matters dealing with the selection and election of their public servants. They determine what offices shall be filled, who shall be nominated for them and when and also for whom they shall have the opportunity and right to vote. They act through Constitution and statute.

The nomination of Mr. Wiltse for County Judge has been accomplished in strict conformity with statute and no one asserts the contrary in this proceeding. He is therefore legally entitled to his place upon the ballot for that office. To prevent the electors of Jefferson County from voting for him for County Judge on November 6th requires legislation and we as a court have not been granted the power to legislate, under our constitutional concept of three co-ordinate branches of government.

The people-electors, after a political struggle, have determined that no one in this State may be elected District Attorney of a county or a County Judge, as a candidate of a political party unless the members of that party first select him as their nominee by their votes cast in a primary election. Pursuant thereto Mr. Wiltse was selected in the primary of the Republican party (and it is only with the primary of that party with which we need concern ourselves) to run for District Attorney, to succeed himself, on the Republican ticket. In the same manner Judge Phillips was selected in the primary of the Republican party to run for election as County Judge but died subsequent to September 10th.

I note that in the dissenting opinion below and in the prevailing opinion here it is mentioned that Mr. Wiltse was nominoted for District Attorney by the Republican, Democratic and Liberal parties. That was a fortuitous circumstance which should have no weight in our decision. It would have weight, of course, if we were making a decision applicable only when one of the candidates involved was nominated by three parties, but such is not the case. On the contrary we are deciding, for instance, that if the Republican party were to nominate a man in the city of New York for President of the City Council, no other party could nominate him for member of the city council since each office must be filled separately at the general election and one man may not occupy both offices. This is but one example, selected at random, of what may occur under the decision about to be made.

Considerable reliance is being placed upon the case of Matter of Lindgren (232 N. Y. 59, 61), where a writ of mandamus was sought to compel the Board of Elections to place upon the official ballot the names of two men as candidates for Mayor and for President of the Board of Aldermen of the City of New York while they were, to use the words of our opinion, ‘ residing at Sing Sing Prison, Ossining, New York ” as a result of convictions for felonies. Mandamus was refused by the Appellate Division as a matter of discretion. (198 App. Div. 319, 322.) It seems difficult to see that the decision in that case could be controlling in any way here, and indeed it was not referred to in the prevailing or dissenting opinions below. The rationale of the decision in the Lindgren case may be found in two paragraphs of the opinion and we can have no quarrel with what was actually determined there for it is ancient law that one is not entitled to a writ of mandamus unless he can show a clear legal right, and that, in the absence of such a showing, the court may properly deny relief as a matter of discretion. (People ex rel. Lunney v. Campbell, 72 N. Y. 496, 499; Matter of Dederick, 77 N. Y. 595; Matter of Black v. O’Brien, 264 N. Y. 272.) That was all we decided in Matter of Lindgren, for we did not affirm the order below but dismissed the appeal. These are the two paragraphs on pages 65 and 66:

“ How can a man who has been deprived of all his civil rights and all authority and powers comply with these provisions of the Election Law? In view of the development of our election laws, of the many details covered by it and the public expense involved, it surely cannot be contemplated that a prison convict can be a nominee when he cannot hold the office if elected. It is reasonable to suppose that if persons participating in the nomination at the primary or by independent nomination must be those qualified to vote on election day, the nominee should be one qualified to hold office if elected. * * *
“ Even if some may disagree with me in my views of this matter, yet we are all agreed that when it appeared to the Special Term or the Appellate Division that the two nominees were incarcerated in a state prison for a felony and that their terms extended beyond election day, these courts in the exercise of discretion could deny the application for a writ of mandamus compelling the board of elections to place their names upon the official ballot.” (Emphasis supplied.)

Whatever question of discretion there is in the instant case was resolved by the Appellate Division in favor of Wiltse, just as was done in Matter of Lindgren (supra).

Even in the Lindgren case the court was careful to point out that those who wished to write in the name of the proposed candidatés were not disfranchised. The voters had the right to vote for such candidates but the public officials would not be compelled to operate expensive election machinery in their favor and for their benefit. Under the proposed decision here, even those are disfranchised who wish to write in the name of this thoroughly honorable citizen, the present District Attorney of the county, and thus vote for him as County Judge.

As a part and consequent of the statutory provisions affecting primaries, the people, through the Legislature, enacted that if the one selected in the primary died before the general election, the County Committee of the party which had nominated him should select a substitute. That was accomplished here strictly in accordance with the statute. When Judge Phillips died, Mr. Wiltse was selected in his place by the County Committee to run for election as County Judge. Mr. Wiltse as we have seen, had already been selected in the primaries by the Republican party to run for District Attorney and it is true, as we were told on argument, that he offered to, and still wishes to, withdraw as a candidate for that office but no statute required him to do so. All that is provided by statute is that such candidate 11 may ” decline nomination. That is a matter solely for the consideration of the candidate. The people-electors have the right by their votes to select in the primaries the same man to run for two offices, compatible or incompatible, and there is no statute forbidding it. As soon as we realize that, it is apparent that we must affirm here. The electors may also elect the same man to two offices. If the offices are incompatible, the one elected may not hold both. By taking his oath of office as to one, he leaves the other vacant. The office abandoned is not then filled by the runner-up at the general election but by the executive — the Governor — as the people-electors have also duly provided. There is no ineligibility for either office to which the individual has been elected. The statute merely provides that he may not hold both. The last paragraph of the opinion of O’Brien, J. (People v. Purdy, 154 N. Y. 439, 443), indicates that our court had clearly in mind that only those not under legal disqualification when voted for could be selected by the voters and that that was the rule to be applied. Since there is no legal disqualification here of Mr. Wiltse from holding the office of County Judge, the rule laid down by our court in the Purdy case, as the better rule, has no application here. This is made abundantly clear by the concluding paragraph of our opinion in the Purdy case:

The statute, we think' does not contemplate that a person who is disqualified to hold the office may, nevertheless, be lawfully elected upon the chance that subsequently he may, by his own act, or by the happening of some event, remove the disqualification, and thus become entitled to fill it. The better rule is that the electors, in making the choice, must be confined to the selection of such persons only as are not then under any legal disqualification to . exercise its powers and perform its duties. The electors can then know that when the choice is made and legally declared the object for which the election was held has been accomplished, and that there is no legal obstruction in the way to prevent their will, as thus exnressed, from becoming effective.”

The care with which the statute has been worded shows clearly how inapposite is the Purdy case. (People v. Purdy, 154 N. Y. 439, supra.) In that case we properly held that Purdy was disqualified in his capacity of a candidate for election as well as to the holding of the office of supervisor of a town because the statute provided that no trustee of a school district shall be eligible to the office of supervisor ” of any town in this State. (P. 441; emphasis supplied.)

On the other hand, as indicating that we construed the legislative intent in People v. Purdy (supra), solely because of the statutory words, we later decided squarely to the contrary of appellant’s contention here in People ex rel. Miller v. Mynderse (140 App. Div. 789, 791, affd. 201 N. Y. 524). There the trustee of a village was elected president of the village on March 15th. The term of office of president was to commence on March 21st at noon. Prior thereto but after his election as president the trustee resigned his office as trustee but the outgoing president of the village refused to permit relator to enter into the office of president, claiming that he was not eligible and that his alleged election was void. Section 42 of the Village Law was entitled ‘1 Eligibility to office ’ ’ and, inter alla, provided insofar as here applicable: A person shall not hold two village offices at the same time except * * (Emphasis supplied.) It seems to me that Kellogg, J., used language decisively applicable here, as follows (140 App. Div. 789, 791): “ But the clause quoted does not in terms purport to relate to the capacity of being chosen, and does not refer to the choosing, but in terms is clearly to prevent the same person from holding two offices at the same time. It relates in terms and spirit to the situation of the. officer, not on election day but on the day when he enters into the performance of his duties. If on that day he is holding another office, qualifying for the second office presents an apparent violation of the statute and probably ipso facto vacates the position formerly held by him, or prevents him from legally qualifying for the new position until he has abandoned the old. ’ ’ Smith, P. J., dissented in a brief opinion because he was unable to distinguish the case from People v. Purdy. We affirmed without a dissenting vote. That case is controlling here and should end all question of the eligibility of Mr. Wiltse.to run for County Judge.

The Attorney-General of our State as late as 1933 (in 48 N. Y. St. Dept. Rep. 192), in an informal opinion to the Commission of Elections, Goshen, Orange County, wrote that one who was nominated for alderman in the primaries of both the Republican and the Democratic parties might thereafter be designated by the Republican city committee of Middletown for the office of Mayor, following the death of one who had been nominated for Mayor in the Republican primaries, in default of some special charter provision of the city of Middletown preventing his being a candidate for both offices at the same time. This is in accord with the result reached in another jurisdiction in which the question has arisen. Thus, in Misch v. Russell (136 Ill. 22, 31 [1891]) the court said: “ We know of no rule of law which prohibits a man’s becoming a candidate or being voted for at the same election for two incompatible offices, but undoubtedly, if he should be elected to both, he would be incapable of discharging the duties of both offices, and would be compelled to elect which to accept. If, for example, a man should be voted for at the same election for county judge and sheriff, no one, we presume, would insist that the votes cast for him by one portion of the voters for one office would be invalid because another portion of the voters saw fit to vote for him for the other. If then different voters may vote for him at the same election for different and incompatible offices, we see no reason why a particular voter, if he chooses so to do, may not vote for him for both offices at the same time. Such manner of voting creates no uncertainty or ambiguity in his ballot, the intention to vote in that way being capable of just as clear and certain an expression as would be an intention to vote for different candidates for the two offices.”

In conclusion I may say that the case was argued before us from the standpoint of the rights of candidates seeking public office. I think that is the wrong approach. The only questions which should be considered are the rights of the electors. Mr.* Wiltse is lawfully on the ballot as a candidate for County Judge and, in my judgment, no court has the power to write additional legislative provisions so as to deprive an elector of the right to vote for a party candidate, lawfully nominated, for any office the elector desires. That is disfranchisement pro tanto of the party members and if it is to be done should be done through the Legislature. For these reasons I vote to affirm.

Lewis, Fuld and Froessel, JJ., concur with Dye, J.; Conway, J., dissents in opinion; Loughran, Ch. J., and Desmond, J., taking no part.

Order reversed, etc.


source: Caselaw Access Project

author: Fuld, J.

license: Public Domain

text:
    The People of the State of New York, Respondent, v. William Terra and Joseph Terra, Appellants.
    Argued October 5, 1951;
    decided December 6, 1951.

      Ira H. Morris for appellants.
    Subdivision 1-a of section 1897 of the Penal Law is unconstitutional in that it violates the due process clause of the Fourteenth Amendment to the United States Constitution. (People ex rel. Murphy v. Jackson, 301 N. Y. 540; People v. Murphy, 276 N. Y. 612; People ex rel. Ackalitis v. Foster, 193 Misc. 634; People v. Gerschinsky, 281 N. Y. 581, 881, 296 N. Y. 1007; People ex rel. Rogalski v. Martin, 290 N. Y. 751, 320 U. S. 767; People ex rel. Rogalski v. Martin, 291 N. Y. 729; People ex rel. Dixon v. Lewis, 249 App. Div. 464, 276 N. Y. 613; People v. Pinder, 170 Misc. 345; Pollock v. Williams, 322 U. S. 4; Tot v. United States, 319 U. S. 463.)

      Clarence J. Henry, District Attorney, for respondent.
    I. Subdivision 1-a of section 1897 of the Penal Law is not unconstitutional. (People v. Burt, 171 Misc. 166; People v. Gerschinsky, 281 N. Y. 581; People ex rel. Murphy v. Jackson, 301 N. Y. 540; People v. Murphy, 276 N. Y. 612; People ex rel. Ackalitis v. Foster, 193 Misc. 634; People ex rel. Dixon v. Lewis, 249 App. Div. 464; People v. Pinder, 170 Misc. 345; Morrison v. California, 291 U. S. 82; People v. Wilson, 151 N. Y. 403; People v. Schooley, 149 N. Y. 99; Knickerbocker v. People, 43 N. Y. 177; People v. Galbo, 218 N. Y. 283; People v. Mancuso, 255 N. Y. 463; People v. Cannon, 139 N. Y. 32.) II. The guilt of appellant William Terra was established beyond a reasonable doubt, even if the provision of subdivision 1-a of section 1897 as to presumption is held unconstitutional. (People ex rel. Murphy v. Jackson, 301 N. Y. 540; MacRae v. Chelsea Fibre Mills, 145 App. Div. 588; Matter of Huss, 126 N. Y. 537; People v. Katz, 154 App. Div. 44; People v. Seidenshner, 210 N. Y. 341; People v. Ferraro, 161 N. Y. 365.) III. The guilt of appellant Joseph Terra was likewise established beyond a reasonable doubt. (People v. Ogle, 104 N. Y. 511.)
   Fuld, J.

On July 19,1949, a machine gun and ammunition for it were found in a one-room store, occupied — or so the jury could have concluded — by the brothers Terra and used by them in connection with their business of distributing and servicing pinball machines. They were indicted, accused of illegally possessing a machine gun in violation of subdivision 1-a of section 1897 of the Penal Law. Adjudged guilty after trial, they seek a reversal upon the ground that the jury was permitted, by virtue of the court’s charge, to rest its verdict upon that clause of subdivision 1-a, which provides that The presence of such machine-gun in any room, dwelling, structure or vehicle shall be presumptive evidence of its illegal possession by all the persons occupying the place where such machine-gun is found.” It is urged that the statute, insofar as it creates the presumption, is unconstitutional.

The presumption provision, broad in scope, applies not only where, as here, the machine gun is found in a “ room, ’ ’ but also where it is discovered in a “ dwelling,” “ structure ” or vehicle ”. Mindful of the policy that courts decide only those constitutional questions necessary for determination of the case as presented (see, e.g., Schieffelin v. Goldsmith, 253 N. Y. 243, 250-251; People ex rel. Alpha Portland Cement Co. v. Knapp, 230 N. Y. 48, 60; People ex rel. Price v. Sheffield Farms Co., 225 N. Y. 25; People v. Beakes Dairy Co., 222 N. Y. 416, 429), we consider the statute only insofar as it relates to the presumption based upon occupancy of a “ room ”. (Cf. People v. Murphy, 276 N. Y. 612; People ex rel. Murphy v. Jackson, 301 N. Y. 540, in which, although constitutionality of the provision here involved was argued, the court found it unnecessary to decide question.)

Presumptions are no innovation in the field of criminal law. For many years legislatures have been enacting statutes providing that certain facts, which in themselves would be insufficient to justify a conviction, shall, when proved, constitute presumptive or prima facie evidence of the existence of the principal fact in issue. Although such provisions undoubtedly facilitate proof of guilt and the task of the prosecution, they are not, for that reason, to be condemned. However, the presumptive device provided for may not be employed in such manner as to impair the right to trial by jury, relieve the prosecution of its .burden of proving guilt beyond a reasonable doubt or otherwise deny to persons accused of crime, “ those fundamental rights and immutable principles of justice which are embraced within the conception of due process of law.” (Bailey v. Alabama, 219 U. S. 219, 239; see, also, People v. Cannon, 139 N. Y. 32, 43.) And, since a defendant is presumed to be innocent until the contrary is proved, due process, it has been said, demands that “ a verdict against [him] * * * be preceded by the introduction of some evidence which tends to prove the elements of the crime charged.” (Tot v. United States, 319 U. S. 463, 473, per Black, J., concurring.)

The validity of a presumption statute, the permissibility of the presumption created, depend, therefore, upon whether, based on life and life’s experiences, a rational connection between the fact proved and the ultimate fact presumed may be said to exist. (See People v. Pieri, 269 N. Y. 315, 324; People v. Cannon, supra, 139 N. Y. 32, 42 et seq.; Board of Commissioners v. Merchant, 103 N. Y. 143, 148; Tot v. United States, supra, 319 U. S. 463, 467-468; Morrison v. California, 291 U. S. 82, 90; Manley v. Georgia, 279 U. S. 1, 5-6, 7; Casey v. United States, 276 U. S. 413, 418; McFarland v. American Sugar Co., 241 U. S. 79, 86; Luria v. United States, 231 U. S. 9, 25; Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61, 82; Bailey v. Alabama, supra, 219 U. S. 219, 238.) “ * * * the fact upon which the presumption is to rest must have some fair relation to, or natural connection with the main fact ” (People v. Cannon, supra, 139 N. Y. 32, 43); “ What is proved must be so related to what is inferred * * * as to be at least a warning signal * * * experience must teach that the evidence held to be inculpatory has at least a sinister significance ” (Morrison v. California, supra, 291 U. S. 82, 90).

Turning to the case before us, there can be no doubt about the sinister significance ” of proof of a machine gun in a room occupied by an accused or about the reasonableness of the connection between its illegal possession and occupancy of the room where it is kept. Persons who occupy a room, who either reside in it or use it in the conduct and operation of a business or other venture — and that is what in its present context the statutory term “ occupying ” signifies (see Webster’s New International Dictionary [2d ed., 1948], p. 1648; cf. People v. Simon, 66 Cal. App. 2d 860) — normally know what is in it; and, certainly, when the object is as large and uncommon as a machine gun, it is neither unreasonable nor unfair to presume that the room’s occupants are aware of its presence. That being so, the legislature may not be considered arbitrary if it acts upon the presumption and erects it into evidence of a possession that is “conscious” and “knowing”. (Cf. People v. Leavitt, 301 N. Y. 113, 116; People v. Wolosky, 296 N. Y. 236, 239; People v. Persce, 204 N. Y. 397, 402.)

On the basis of somewhat similar reasoning, the Supreme Court of the United States has upheld the validity of a statute providing that the existence of a liquor still upon ‘ ‘ real estate ’ ’ constitutes prima facie evidence that those “ in actual possession ’ ’ of the land knew of the location of the still and may, on the strength of that presumption, be held guilty of the crime of permitting a still to be operated upon their property. (See Hawes v. Georgia, 258 U. S. 1.) And this court has today reaffirmed the constitutionality of section 1898-a of the Penal Law, which recites that the “ presence in an automobile ” of any gun or other designated weapon “ shall be presumptive evidence of its illegal possession by all the persons * * * in such automobile at the time such weapon * * # is found. ’ ’ (See People v. Russo, 303 N. Y. 673; People v. Gerschinsky, 281 N. Y. 581.) If such statutes are constitutional — one presuming knowledge of a still from possession of perhaps a large area of land and the other presuming possession of a gun from mere presence in an automobile — then, a fortiori, a provision declaring possession of a gun inferable from occupancy of the room where it is found, is reasonable and valid.

Except for law enforcement officials and the few other groups expressly exempted from the application of subdivision 1-a of section 1897, a machine gun is never permissible equipment or standard stock in trade of any legitimate business or profession, and rarely, if ever, is its possessor either law-abiding or engaged upon a lawful task. If, therefore, it is reasonable — and we have shown that it is — to presume possession of a machine gun from evidence that defendants were occupying the room in which it was kept, it follows almost as matter of course that it is rational further to infer an illegal possession, since a machine gun is property ‘ ‘ not likely * * * to be found in the possession of innocent parties.” (Adams v. New York, 192 U. S. 585, 599, affg. 176 N. Y. 351, dealing with policy slips; see, also People v. Cannon, supra, 139 N. Y. 32, dealing with bottles bearing distinctive marks of another; State v. Fitzpatrick, 141 Wash. 638, dealing with burglar’s tools; People v. Scott, 24 Cal. 2d 774, dealing with guns from which identifying marks were removed; Reid v. Perkerson, 207 Ga. 27, dealing with lottery tickets; People v. Fitzgerald, 14 Cal. App. 2d 180, certiorari denied 299 U. S. 593, dealing with high explosives; Mantell v. Jones, 150 Neb. 785, dealing with vehicles from which identifying numbers were removed; and cf. Penal Law, § 1898, providing that possession by any person other than a public officer of certain “ dangerous or deadly ” weapons is “ presumptive evidence of carrying, concealing or possessing with intent to use the same in violation of this article ”, which was deemed constitutional in People ex rel. Woronoff v. Mallon, 222 N. Y. 456, 467; People v. Persce, supra, 204 N. Y. 397; People v. Panitz, 251 App. Div. 276.)

The section 1897 presumption, with which we are concerned, is to be contrasted with subdivision (f) of section 2 of the Federal Firearms Act, declared unconstitutional in Tot v. United States (supra, 319 U. S. 463). That provision prescribed that the possession of a firearm by any person who has been convicted of a crime of violence or is a fugitive from justice shall be presumptive evidence that the article was received by him in interstate commerce after the effective date of the statute. Absence of a rational basis for such an inference is as patent as is existence of a reasonable connection between actual possession of a machine gun and its illegal, guilty possession.

The statute here challenged visits no oppressive burden upon an accused. It gives him every opportunity to rebut the presumption — for which, as we have seen, there is fair and reasonable basis — merely calling upon him to explain the highly sinister and suspicious proof that a death-dealing machine gun was found in a room occupied by him. And, even if he offers no explanation, the jury may still refuse to convict. The burden of proof upon the entire case, the duty of establishing guilt beyond a reasonable doubt, remains as ever with the prosecution. Defendant’s right to a fair trial continues undiminished; no hardship is imposed, no constitutional right or safeguard impaired.

The judgment should be affirmed.

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

Judgment affirmed.


author: Dye, J.

text:
    The People of the State of New York, Respondent, v. Patsy Guariglia, Appellant.
    Argued October 8, 1951;
    decided December 6, 1951.

      Maurice Edelbaum for appellant.
    The court below erred in refusing to grant a hearing upon the allegation raised by the petition and the return of the District Attorney. (Matter of Bojinoff v. People, 299 N. Y. 145; Johnson v. Zerbst, 304 U. S. 458; Gayes v. New York, 332 U. S. 145; People v. Richetti, 302 N. Y. 290; Matter of Lyons v. Goldstein, 290 N. Y. 19; People v. Gersewitz, 294 N. Y. 163; Matter of Hogan v. New York Supreme Court, 295 N. Y. 92; People v. Siciliano, 185 Misc. 149; People v. Sadness, 300 N. Y. 69; People v. Sullivan, 276 App. Div. 1087.)

      Miles F. McDonald, District Attorney (William I. Siegel of counsel), for respondent.
    The order denying the motion to vacate the judgment was proper on the facts and on the law. (Canizio v. New York, 327 U. S. 82; Matter of Bojinoff v. People, 299 N. Y. 145; People v. Phillips, 301 N. Y. 733; People v. Joyce, 41 Hun 641; People v. Gersewitz, 294 N. Y. 163; People v. Sadness, 300 N. Y. 69.)
   Dye, J.

This appeal is by permission of the Chief Judge of our court in order that we may review the unanimous affirmance by the Appellate Division, Second Department, of an order of the Kings County Court Special Term, denying petitioner-appellant’s application for a hearing on the issues raised in his petitian and for an order to bring him up to testify in his own behalf (Code Crim. Pro., § 10-c). The ultimate relief sought is an order in the nature of a writ of error coram nobis to vacate and set aside a judgment of conviction entered in 1931 in the County Court of Kings County, following a plea of ‘ ‘ guilty ” of the crime of robbery in the first degree, unarmed. The petitioner then being of the age of sixteen years, was sentenced to the New York State Reformatory at Elmira, New York, there to be dealt with according to law, which sentence petitioner claims has ripened into a term of imprisonment for life, now being served in Auburn State Prison.

The indictment charged the petitioner and two others (Frank Canizio and Anthony Bruno) with the crimes of robbery, first degree, grand larceny, second degree, and assault, second degree. When arraigned in Kings County Court on May 25, 1931, all three entered a plea of “ not guilty.” Thereafter on June 1, 1931, the petitioner and his codefendants were taken to the chambers of the Kings County Judge who presided at the arraignment, the only appearance noted being that on behalf of the People by an assistant district attorney for Kings County, none being noted for this petitioner or his codefendants. The record does not disclose what transpired in chambers but afterward the trio were returned to the courtroom where this petitioner withdrew his former plea of not guilty ” and entered one of “ guilty ” to the crime of robbery in the first degree, unarmed, and the other two counts of the indictment were then dismissed on consent of the District Attorney.

Nowhere does the record now before us disclose that the court advised the petitioner of his right to counsel, prior to his plea of “ guilty ” (Code Crim. Pro., §§ 8, 308). It does appear however that on June 2, 1931, the day after the petitioner pleaded “ guilty ”, an attorney filed with the clerk of the court a written notice of appearance on behalf of the petitioner alone. In the stenographic transcript of the proceedings held on June 19, 1931, it is noted that the same attorney personally appeared in behalf of this petitioner and that he stated to the court: “ In the Patsy Guariglia case your Honor knows the facts and I leave it in your hands. ’ ’ The court then pronounced sentence.

The petitioner now challenges the validity of such judgment, alleging not only that he was denied his right to counsel but also claims that fraud was practiced upon him in procuring his plea of “ guilty ” (N. Y. Const., art. I, § 6; U. S. Const., 14th Amendt.). His verified petition alleges that at no time, either at his several appearances in court or in chambers, was he advised of his right to counsel, of which he was ignorant, or was he asked if he desired the aid of counsel and that no counsel was assigned to represent him and that he had no counsel of his own choosing. In addition, he categorically denies any conscious knowledge or understanding that he was being represented at the time of sentence by the counsel whose appearance was noted, affirmatively alleging that no lawyer consulted with him and that he never met this lawyer [the one who appeared], nor talked to him, nor even knew that he represented your petitioner. That petitioner never retained him nor authorized him to appear for him; nor was such lawyer assigned to your petitioner by the court.”

The answering affidavits do not contradict the truth of these allegations but allege that the requirements of due process in regard to counsel were fully satisfied by the appearance of an attorney in petitioner’s behalf at the time of sentence. In support of this position the People pointed out that even though the initial appearance by an attorney was at the time of sentence, the petitioner’s rights could nonetheless have been fully protected by the making of a motion to withdraw his plea of guilty ” and to substitute a plea of “ not guilty ” (Code Crim. Pro., § 337) or by the motion in arrest of judgment (Code Crim. Pro., §§ 331, 467).

The issue here is not so much whether petitioner was timely and properly represented by counsel but whether under the circumstances of this case it may be said that he consciously knew of and authorized such representation at the time of sentence.

The presumption of regularity attending judgments, as we have often pointed out, is not conclusive but is subject to rebuttal. For this reason it may not be used as a bar to a trial of the issues raised in the petition. It is only when the record convincingly demonstrates the falsity of such allegations that such relief will be denied.

Here the moving papers flatly deny that the petitioner had any conscious knowledge that he was being represented by the attorney who appeared in his behalf at the time of sentence or that he authorized such representation. There is nothing to shoAV that he 1 ‘ affirmatively, voluntarily and consciously ’ ’ waived the rights which he possessed at the time. The stenographic entry relied on by the People to the effect that counsel left it “ in the hands of the court ” does not convincingly demonstrate the falsity of the sworn allegations to the contrary. When so viewed the existence of a serious dispute is clearly indicated Avhich we believe may only be properly resolved by a trial of the issues (People v. Richetti, 302 N. Y. 290; Rice v. Olson, 324 U. S. 786). Fundamental aspects of due process demand this for if in truth petitioner was not represented by authorized counsel, he is entitled to relief by way of coram nobis (Matter of Bojinoff v. People, 299 N. Y. 145).

We turn now to the petitioner’s claim of fraud allegedly practiced upon him to procure his plea of guilty ”. His petition shows that at the time he was taken to the chambers of the Kings County Court, the County Judge allegedly told this petitioner who was not represented by counsel at the time: it would be best for all three (3) defendants to plead Guilty ’ as there was no chance, from what the court was told by the District Attorney, of petitioner and his co-defendants, being acquitted ” which view was allegedly confirmed by the assistant district attorney and that if defendants did not plead guilty and were found guilty by the Jury, the court would impose the limit permitted by law.” The Judge allegedly also told this petitioner that if he pleaded ‘ Guilty ’ the court would be lenient because of the age of petitioner and would send petitioner to the Elmira State Reformatory where, if petitioner behaved, petitioner would be released within a short period of time ” and that “ if petitioner misbehaved, he could be kept in State prison up to a maximum of fifteen (15) years.” The court did not at this time inform petitioner that the maximum sentence under such a commitment could, under certain circumstances, be for life in prison (Penal Law, § 2125 [L. 1926, ch. 436; see amendt. L. 1932, ch. 275]; People v. Sobierajski, 224 App. Div. 227). It was in reliance on this that the petitioner allegedly bargained away his original plea of “ not guilty ” and substituted a plea of u guilty ” in the expectation of leniency, which he did not get.

So much of the record as is now before us is silent as to what happened in chambers and the petitioner’s version is not contradicted. This raises an issue entitling the petitioner to a hearing for if true he would be entitled to an order coram nobis (Matter of Lyons v. Goldstein, 290 N. Y. 19). It is only when the record conclusively demonstrates the falsity of the allegations and there is no reasonable probability at all that defendant’s averments are true that a hearing will be denied (People v. Richetti, supra; Hysler v. Florida, 315 U. S. 411; Taylor v. Alabama, 335 U. S. 252; New York ex rel. Whitman v. Wilson, 318 U. S. 688; Matter of Morhous v. New York Supreme Court, 293 N. Y. 131; see, also, Waley v. Johnston, 316 U. S. 101; Walker v. Johnston, 312 U. S. 275, which deal with habeas corpus, but apply the samé ruling).

The orders should be reversed and the case remitted to the County Court of Kings County for a trial of the issues.

Loughran, Ch. J., Lewis, Conway, Desmond, Ftjld and Froessel, JJ., concur.

Orders reversed, etc.

       In a proceeding instituted by petitioner’s codefendant Canizio in the County Court of Kings County for an order comm nobis to vacate and set aside sentence imposed June 19, 1931, as void because he was not represented by counsel, and was neither asked if he desired counsel nor advised of his right to counsel, the motion was denied. There being no right to appeal to any higher court at that time (People v. Gersewitz, 294 N. Y. 163), the United States Supreme Court granted certiorari (326 U. S. 705). On appeal the order of denial was affirmed as it appeared from the papers that at the time of sentence Canizio “ was actively represented by counsel in long hearings ” (327 U. S. 82, 85). There being no denial of these facts, a hearing on Canizio’s motion was deemed unnecessary.

       In a proceeding for an order coram nobis instituted by Bruno in Kings County Court, the sentence imposed on June 19, 1931, as to him was vacated and set aside as it conclusively appeared from the record that he was not represented by counsel at the time.


author: Froessel, J.

text:
    In the Matter of the Accounting of Homer J. Borst, as Executor of Lizzie S. Fisher, Deceased, Respondent. Dorothy G. Frost as Executrix of J. Sheldon Frost, Appellant.
    Argued October 5, 1951;
    decided December 6, 1951.

      Harold J. O’Keeffe for appellant.
    I. If the attorney be guilty of no fraud or undue influence, and if the client, comprehending clearly the circumstances of the situation, be moved only by the impulses of his own will, the transaction, though in the event favorable to the attorney and unfavorable to the client, cannot be impugned. (Boyd v. Daily, 85 App. Div. 581, 176 N. Y. 613; Audley v. Jester, 148 App. Div. 94; Nesbit v. Lockman, 34 N. Y. 167; Rothschild v. Title Guar. & Trust Co., 204 N. Y. 458; Matter of Putnam, 257 N. Y. 140.) II. A proper interpretation of the instruments clearly shows that decedent had no legal or equitable right to demand the return of said bond and mortgage. (Pearce v. Knepper, 53 N. Y. S. 2d 845; Matter of Mayer, 59 N. Y. S. 2d 558, 561; Matter of Martin, 269 N. Y. 305; Matter of Hoepner, 176 Misc. 47; Matter of Cass, 68 N. Y. S. 2d 666.) III. Decedent was guilty of constructive fraud, if not actual fraud, in making her demand and in getting the reassignment of said bond and mortgage as a result of said demand. (Ochs v. Woods, 221 N. Y. 335; Lefler v. Field, 52 N. Y. 621; Forker v. Brown, 10 Misc. 161; Clark v. Dodge, 269 N. Y. 410; Ripin v. United States Woven Label Co., 205 N. Y. 442; Rosenblum v. Manufacturers Trust Co., 270 N. Y. 79; Matter of Morse, 98 N. Y. S. 2d 43.)

      James E. O’Loughlin for respondent.
    I. Appellant failed to sustain the burden of proving fraud on the part of decedent. (Daily v. Dunn, 256 App. Div. 1043; Matter of Howell, 215 N. Y. 466; Kissam v. Squires, 102 App. Div. 536; Feiber v.
      Copeland, 232 App. Div. 504; Frost v. Bachman, 283 N. Y. 744.) II. There was a strong confidential relationship between decedent and J. Sheldon Frost, as well as the further relationship of attorney and client. (Barnard v. Gantz, 140 N. Y. 249.) III. The bond and mortgage, the basis of the claim, was at all times a trust fund for the benefit of decedent and subject to her benefit and control. (Matter of Cavin v. Gleason, 105 N. Y. 256; Matter of Hicks, 170 N. Y. 195.)
   Froessel, J.

From the stipulated facts, the documents, and the brief testimony constituting the record before us, the following appears: Appellant’s testate, J. Sheldon Frost (hereinafter called Frost), and respondent’s testate, Lizzie S. Fisher (hereinafter called Mrs. Fisher), were cousins. They were on very cordial terms, and Frost, an attorney at law, managed all of Mrs. Fisher’s affairs, performing legal, business and friendly services for her. Although she had a substantial estate, consisting at the time of her death of $147,582.71, Mrs. Fisher lived in a frugal manner for many years; from 1923 to 1933, her expenditures for her own support and maintenance did not exceed $200 a year. On August 22, 1923, she executed an assignment to Frost of a bond and mortgage on a farm in the amount of $2,000. Apparently she did not make delivery of the instrument until April of 1926, and it was recorded on April 19,1926.

A letter from Frost to another cousin, one Lauder, written on April 12th of that year, throws light upon the assignment: “ Lizzie told me that she had two mortgages one of which she had intended for you and one for me and she said she would like to arrange to turn over the mortgages with the understanding that the interest should come to her during her lifetime and that she could call for some of the principal if she needed it for her personal use.” Frost drew the agreements accordingly. By his own agreement he obligated himself unequivocally to pay her during the balance of her life $120 per year, irrespective of whether or not he collected anything on the mortgage, and in case further moneys are needled] by her for her personal use to pay to her from time to time such part of the principal sum of said mortgage as she may require ’ ’ (emphasis supplied).

Frost died on May 12,1932, over six years after the recording of said assignment. On January 23, 1933, Mrs. Fisher wrote to appellant stating:

“As I have an agreement by which Sheldon agreed to pay me the interest annually upon the Charles R. Rushmore mortgage, I believe that it is inadvisable to call this mortgage in at this time.
‘ ‘ My annual interest is secured by letting the mortgage stand, and I wish it to remain so.”

It will be noted that she said nothing about the agreement providing for the return of any principal; she simply did not wish the mortgage called. On May 2, 1933, she made demand in writing upon appellant for the return of the bond and mortgage, concluding as follows: “ as I am in need of said bond and mortgage and the moneys represented thereby and this demand is made pursuant to my understanding of the agreement between myself and J. Sheldon Frost, wherein and whereby he became possessed of said bond and mortgage ” (emphasis supplied). At this time she was aware that the assets of Frost’s estate were insufficient to pay his creditors.

The bond and mortgage were assigned to Mrs. Fisher on' May 16, 1933, by appellant, who believed and relied upon the representation that the former was in need of the money. Appellant afterwards discovered that Mrs. Fisher, far from being ‘ ‘ in need ’ ’ at the time of her demand for the reassign-, ment, had savings bank deposits amounting to more than $35,000, later shown to have been actually more than $75,000, and an estate at the time of her death of nearly twice that sum. Indeed, instead of needing the proceeds of this mortgage “ for her personal use ”, she reassigned the bond and mortgage to Lauder on August 13, 1934.

On June 11, 1936, appellant made demand upon Mrs. Fisher for the return of the bond and mortgage upon the ground of misrepresentation, but Mrs. Fisher never complied therewith during her lifetime; she had already assigned it to. her cousin, as noted. She died on May 13, 1940. The claim of appellant against Mrs. Fisher’s estate is based upon the fraud allegedly perpetrated on the estate of Frost and its creditors as a result of Mrs. Fisher’s demand and the reassignment to her. It is contended that the. instrument on its face expressly conditions— “ in case ” — the return “ from time to time ” of parts of the principal to Mrs. Fisher upon her “need” of “ further moneys ” for “ her personal use ”, and that such need did not exist at the time when appellant reassigned the bond and mortgage to Mrs. Fisher, believing and relying upon the latter’s representation that she was in such need.

The referee who heard the evidence in the Surrogate’s Court adopted appellant’s view of the matter. The Appellate Division took the view that the instrument is “ curious ”, “ vague ”, “ indefinite ” and lacking in completeness, and because of the relationship between the parties and the fact that Frost drafted the agreement, “ we may not construe the agreement very strictly against ” Mrs Fisher. (275 App. Div. 509, 511, 512.) Since Frost was obligated to pay to Mrs. Fisher such part of the principal “ as she may require ”, the court concluded that the agreement vested discretion in her to determine when and in what case further moneys might be ‘ needed by her for her personal use ” (p. 512).

In the last analysis, the problem before us is reduced to a choice between the opposing constructions given this instrument 'in the courts below. We are of the opinion that the view adopted by the referee and the Surrogate is by far the sounder. As we look upon the circumstances surrounding the transaction and the conduct of the parties in relation thereto as reflected by the record before us, bearing in mind that both of the parties are dead, it seems to us that it was never intended that Mrs. Fisher would have an absolute right to the return of the security. They were on the best of terms and apparently had the highest regard for each other; no suggestion of any kind appears in the record that either one sought to take the slightest advantage of the other. Thus the language must speak for itself. To us it is an agreement under which Frost could have the mortgage subject to his payment of interest to her during her lifetime and the payment of “ further moneys ”, not upon her mere request, but only “ in case ” they “ are need[ed] by her for her personal use ”. If Frost had never collected a dollar on this mortgage by way of principal or interest, he was nevertheless obligated to pay her at least $120 a year for as long as she lived, and such an agreement is quite different from the situation in Matter of Woollard (295 N. Y. 390), cited by the court below, which dealt with an express trust. There, the will provided for payments of income and corpus to the widow during her lifetime “ as she may deem necessary for her maintenance comfort and well being (for which she shall not be required to make or file any account) ” (emphasis supplied). In this case, we have an agreement coupled with an obligation, and it is not Mrs. Fisher’s mere demand, but the circumstance of the need by her for her personal use ”, that is made the condition of payment of “ further moneys ” beyond the interest payments. As it developed, she was never in need; indeed, she never used the bond and mortgage for herself but turned it over intact to another cousin the following year (see Vincent v. Rix, 248 N. Y. 76, 82).

Accordingly, the order of the Appellate Division should be reversed, and the decree of the Surrogate’s Court, insofar as reversed by the Appellate Division, affirmed, with costs to the appellant payable out of the respondent estate.

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

Ordered accordingly.


author: Desmond, J. Lewis, J.

text:
    Robert C. Woods, an Infant, by Estelle Woods, His Guardian ad Litem, Appellant, v. Joseph Lancet, Respondent.
    Argued October 4, 1951;
    decided December 6, 1951.

      Ruth Gottdiener for appellant.
    I. A viable child, injured while en ventre sa mere, who survives such injury, may recover for injuries suffered by reason of the negligence of another. (Bonbrest v. Kotz, 65 F. Supp. 138; Williams v. Marion R. T., Inc., 152 Ohio St. 114; Verkennes v. Corniea, 229 Minn. 365; Damasiewicz v. Gorsuch, 79 A. 2d 550 [Md.]; Cooper v. Blanck, 39 So. 2d 352 [La.]; Scott v. McPheeters, 33 Cal. App. 2d 629.) II. The New York courts have always recognized the paramount interests of the infant. (Piper v. Hoard, 107 N. Y. 73; Quinlan v. Welch, 141 N. Y. 158; Drobner v. Peters, 194 App. Div. 696; Nugent v. Brooklyn Heights R. R. Co., 154 App. Div. 667; Kujek v. Goldman, 150 N. Y. 176.)

      Louis Helfenstein and Norman Lustig for respondent.
    An unborn child cannot successfully maintain a cause of action for personal injuries while en ventre sa mere. (Drobner v. Peters, 232 N. Y. 220; Matter of Roberts, 158 Misc. 698; Stanford v. St. Louis-San Francisco Ry. Co., 214 Ala. 611; Scott v. McPheeters, 33 Cal. App. 2d 629; Smith v. Luckhardt, 299 Ill. App. 100; Newman v. City of Detroit, 281 Mich. 60; Buel v, United Rys. Co.,
      248 Mo. 126; Stemmer v. Kline, 128 N. J. L. 455; Krantz v. Cleveland A. C. Bus Co., 32 Ohio N. P. [N. S.] 445; Berlin v. Penney Co., 339 Pa. 547; Gorman v. Budlong, 23 R. I. 169; Magnolia Coca Cola Bottling Co. v. Jordan, 124 Tex. 347.)
   Desmond, J.

The complaint served on behalf of this infant plaintiff alleges that, while the infant was in his mother’s womb during the ninth month of her pregnancy, he sustained, through the negligence of defendant, such serious injuries that he came into this world permanently maimed and disabled. Defendant moved to dismiss the complaint as not stating a cause of action, thus taking the position that its allegations, though true, gave the infant no right to recover damages in the courts'of New York. The Special Term granted the motion and dismissed the suit, citing Drobner v. Peters (232 N. Y. 220). In the Appellate Division one Justice voted for reversal with an opinion in which he described the obvious injustice of the rule, noted a decisional trend (in other States and Canada) toward giving relief in such cases, and suggested that since Drobner v. Peters (supra) was decided thirty years ago by a divided vote, our court might well re-examine it.

The four Appellate Division Justices who voted to affirm the dismissal below, wrote no opinion except that one of them stated that, were the question an open one and were he not bound by Drobner v. Peters (supra), he would hold that “ when a pregnant woman is injured through negligence and the child subsequently born suffers deformity or other injury as a result, recovery therefor may be allowed to the child, provided the causal relation between the negligence and the damage to the child be established by competent medical evidence.” (278 App. Div. 913.) It will hardly be disputed that justice (not emotionalism or sentimentality) dictates the enforcement of such a cause of action. The trend in decisions of other courts, and the writings of learned commentators, in the period since Drobner v. Peters was handed down in 1921, is strongly toward making such a recovery possible. The precise question for us on this appeal is: shall we follow Drobner v. Peters, or shall we bring the common law of this State, on this question, into accord with justice! I think, as New York State’s court'of last resort, we should make the law conform to right.

Drobner v. Peters (supra), like the present case, dealt with the sufficiency of a complaint alleging prenatal injuries, tortiously inflicted on a nine-month foetus, viable at the time and actually born later. There is, therefore, no material distinction between that ease and the one we are passing on now. However, Drobner v. Peters must be examined against a background of history and of the legal thought of its time and of the thirty years that have passed since it was handed down. Early British and American common law gives no definite answer to our question, so it is not profitable to go back farther than Dietrich v. Northampton (138 Mass. 14), decided in 1884, with an opinion by Justice Holmes, and, apparently, the first American case. Actually that was a death case, since the five-month infant, prematurely born, survived for a few minutes after birth. The principal ground asserted by the Massachusetts Supreme Court (138 Mass., at p. 17) for a denial of recovery was that the unborn child was a part of the mother at the time of the injury ’ ’ and that “ any damage to it which was not too remote to be recovered for at all was recoverable by her ” (the mother). A few years later (1890), in Ireland, the Queen’s Bench Division, in a very famous holding, refused to allow a suit to be brought on behalf of a child born deformed as the result of an accident in defendant’s railway coach, two of the Justices taking the ground that the infant plaintiff was not in esse at the time of the wrong, and the other two regarding the suit as one on the contract of carriage with no duty of care owing by the carrier to the unborn infant whose presence was unknown to defendant (Walker v. Great Northern Ry. of Ireland, 28 L. R. Ir. 69). A similar complaint was dismissed for similar reasons, and the dismissal affirmed by the Appellate Division, Second Department, in Nugent v. Brooklyn Heights R. R. Co. (154 App. Div. 667, appeal dismissed 209 N. Y. 515). It is significant that the Appellate Division’s opinion in the Nugent case (supra) indicates that, had it not been for the contract-of-carriage theory and its supposed consequences, the writer of the opinion would have favored recovery. Other strong support for just treatment of prenatal wrongs (of another kind) is found also in the 1893 opinion of Justice Haight (later of this court) in Quinlen v. Welch (69 Hun 584); however, on appeal, this court found it unnecessary to pass on the point (141 N. Y. 158). There were, in the early years of this century, rejections of such suits by other courts, with various fact situations involving before-birth traumas (see Allaire v. St. Luke’s Hosp., 184 Ill. 359; Gorman v. Budlong, 23 R. I. 169; Stanford v. St. Louis-San Francisco Ry. Co., 214 Ala. 611; Newman v. City of Detroit, 281 Mich. 60; Magnolia Coca Cola Bottling Co. v. Jordan, 124 Tex. 347; Buel v. United Rys. Co., 248 Mo. 126; Lipps v. Milwaukee Elec. Ry. & Light Co., 164 Wis. 272) and, quite recently, Massachusetts has reaffirmed the Dietrich rule (Bliss v. Passanesi, 326 Mass. 461). The movement toward a more just treatment of such claims seems to have commenced with the able dissent in the Allaire case (supra), which urged that a child viable but in útero, if injured by tort, should, when born, be allowed to sue; and the movement took impetus from the Wisconsin court’s statement in the Lipps opinion (supra), that, it was restricting its holding (of nonrecovery) to a nonviable child. Thus, when Drobner v. Peters came to this court in 1921, there had been no decisions upholding such suits, although the two New York lower court rulings above cited (Nugent and Quinlen cases, supra), were favorable to the position taken by plaintiff here.

In Drobner v. Peters (supra), this court, finding no precedent for maintaining the suit, adopted the general theory of Dietrich v. Northampton (supra), taking into account, besides the lack of authority to support the suit, the practical difficulties of proof in such cases, and the theoretical lack of separate human existence of an infant in utero. It is not unfair to say that the basic reason for Drobner v. Peters was absence of precedent. However, since 1921, numerous and impressive affirmative precedents have been developed. In California (Scott v. McPheeters, 33 Cal. App. 2d 629) the Court of Appeal allowed the suit — reliance was there put on a California statute but that statute was not directly in point, since it directed only that a child conceived, but not yet born, is to be deemed an existing person, so far as may be necessary for its interests in the event of its subsequent birth.” That California statute merely codified an accepted and ancient common-law rule (see Stedfast v. Nicoll, 3 Johns. Cas. 18, 23, 24) which, for some reason, has not, at least in our court, been applied to prepartum injuries tortiously inflicted. In 1949, the Ohio Supreme Court (Williams v. Marion R. T., Inc., 152 Ohio St. 114, rule reaffirmed by the same court in Jasinsky v. Potts, 153 Ohio St. 529) and Minnesota’s highest tribunal (Verkennes v. Corniea, 229 Minn. 365), and in 1951, the Court of Appeals of Maryland (Damasiewicz v. Gorsuch, -Md.-, 79 A. 2d 550) and the Supreme Court of Georgia (Tucker v. Carmichael, 208 Ga. 201) upheld the right of an infant to bring an action like the one we are here examining, without statutory authorization. The Supreme Court of Canada had announced the same rule back in 1933 (Montreal Tramways v. Leveille, [1933] 4 Dom. L. Rep. 337). In New Jersey a strong five-to-ten dissent (written by the Chief Justice) unsuccessfully urged the same view (Stemmer v. Kline, 128 N. J. L. 455 [1942]). In England there seems to be no controlling precedent (see Professor Winfield’s comprehensive article in 4 U. of Toronto L. J. [1941-1942] 285 et seq.). Of law review articles on the precise question there is an ample supply (see 20 Minn. L. Rev. [Feb., 1936] 321-322; 34 Minn. L. Rev. [Dec., 1949] 65-66; 48 Mich. L. Rev. [Feb., 1950] 539-541; 35 Cornell L. Q. [Spring, 1950] 648-654; 1951 Wis. L. Rev. [May] 518-528; 50 Mich. L. Rev. [Nov., 1951] 166-167). They justify the statement in Prosser on Torts, at page 190, that: All writers who have discussed the problem have joined in condemning the existing rule, in maintaining that the unborn child in the path of an automobile is as much a person in the street as the mother, and urging that recovery should be allowed upon proper proof.”

What, then, stands in the way of a reversal here? Surely, as an original proposition, we would, today, be hard put to it to find a sound reason for the old rule. Following Drobner v. Peters (supra) would call for an affirmance but the chief basis for that holding (lack of precedent) no longer exists. And it is not a very strong reason, anyhow, in a case like this. Of course, rules -of law on which men rely in their business dealings should not be changed in the middle of the game, but what has that to do with bringing to justice a tort-feasor who surely has no moral or other right to rely on a decision of the New York Court of Appeals? Negligence law is common law, and the common law has been molded and changed and brought up-to-date in many another case. Our court said, long ago, that it had not only the right, but the duty to re-examine a question where justice demands it (Rumsey v. New York & N. E. R. R. Co., 133 N. Y. 79, 85, 86, and see Klein v. Maravelas, 219 N. Y. 383). That opinion notes that Chancellor Kent, more than a century ago, had stated that upwards of a thousand cases could then be pointed out in the English and American reports ‘ ‘ ‘ which had been overruled, doubted or limited in their application ’ ”, and that the great Chancellor had declared that decisions which seem contrary to reason u ‘ ought to be examined without fear, and revised without reluctance, rather than to have the character of our law impaired, and the beauty and harmony of the system destroyed by the perpetuity of error.’ ” And Justice Sutherland, writing for the' Supreme Court in Funk v. United States (290 U. S. 371, 382), said that while legislative bodies have the power to change old rules of law, nevertheless, when they fail to act, it is the duty of the court to bring the law into accordance with present day standards of wisdom and justice rather than “ with some outworn and antiquated rule of the past ”. No reason appears why there should not be the same approach when traditional common-law rules of negligence result in injustice (see Hagopian v. Samuelson, 236 App. Div. 491, 492, and see Justice Stone’s article on “ The Common Law in the United States ”, 50 Harv. L. Rev. [1936], pp. 4-7).

The sum of the argument against plaintiff here is that there is no New York decision in which such a claim has been enforced. Winfield’s answer to that (see U. of Toronto L. J. article, supra, p. 29) will serve: if that were a valid objection, the common law would now be what it was in the Plantagenet period. ’ ’ And we can borrow from our British friends another mot: “ When these ghosts of the past stand in the path of justice clanking their mediaeval chains the proper course for the judge is to pass through them undeterred ” (Lord Atkin in United Australia, Ltd., v. Barclay’s Bank, Ltd., [1941] A. C. 1, 29). We act in the finest common-law tradition when we adapt and alter decisional law to produce common-sense justice.

The same answer goes to the argument that the change we here propose should come from the Legislature, not the courts. Legislative action there could, of course, be, but we abdicate our own function, in a field peculiarly nonstatutory, when we refuse to reconsider an old and unsatisfactory court-made rule. Perhaps, some kinds of changes in the common law could not safely be made without the kind of factual investigation which the Legislature and not the courts, is equipped for. Other proposed changes require elaborate research and consideration of a variety of possible remedies — such questions are peculiarly appropriate for Law Revision Commission scrutiny, and, in fact, the Law Revision Commission has made an elaborate examination of this very problem (1935 Report of N. Y. Law Revision Commission, pp. 449-476). That study was made at the instance of the late Chief Judge Pound of this court and was transmitted to the Legislature by the commission. Although made before the strong trend in favor of recovery had clearly manifested itself, the Law Bevision Commission’s comments were strongly in favor of the position taken in this opinion. The report, itself, contained no recommendations for legislation on the subject but that apparently was because the commission felt that it was for the courts to deal with this common-law question. At page 465, for instance, the report said: The common law does not go on the theory that a case of first impression presents a problem of legislative as opposed to judicial power. ’ ’

Two other reasons for dismissal (besides lack of precedent) are given in Drobner v. Peters (supra). The first of those, discussed in many of the other writings on the subject herein cited, has to do with the supposed difficulty of proving or disproving that certain injuries befell the unborn child, or that they produced the defects discovered at birth, or later. Such difficulties there are, of course, and, indeed, it seems to be commonly accepted that only a blow of tremendous force will ordinarily injure a foetus, so carefully does nature insulate it. But such difficulty of proof or finding is not special to this particular kind of lawsuit (and it is beside the point, anyhow, in determining sufficiency of a pleading). Every day in all our trial courts (and before administrative tribunals, particularly the Workmen’s Compensation Board), such issues are disposed of, and it is an inadmissible concept that uncertainty of proof can ever destroy legal right. The questions of causation, reasonable certainty, etc., which will arise in these cases are no different, in kind, from the ones which have arisen in thousands of other negligence cases decided in this State, in the past.

The other objection to recovery here is the purely theoretical one that a foetus in útero has no existence of its own separate from that of its mother, that is, that it is not “ a being in esse ”. We need not deal here with so large a subject. It is to be remembered that we are passing on the sufficiency of a complaint which alleges that this injury occurred during the ninth month of the mother’s pregnancy, in other words, to a viable foetus, later born. Therefore, we confine our holding in this case to prepartum injuries to such viable children. Of course such a child, still in the womb is, in one sense, a part of its mother, but no one seems to claim that the mother, in her own name and for herself, could get damages for the injuries to her infant. To hold, as matter of law, that no viable foetus has any separate existence which the law will recognize is for the law to deny a simple and easily demonstrable fact. This child, when injured, was in fact, alive and capable of being delivered and of remaining alive, separate from its mother. We agree with the dissenting Justice below that To deny the infant relief in this case is not only a harsh result, but its effect is to do reverence to an outmoded, timeworn fiction not founded on fact and within common knowledge untrue and unjustified.” (278 App. Div. 913, 914.)

The judgments should be reversed, and the motion denied, with costs in all courts.

Lewis, J.

(dissenting). .1 agree with the view of a majority of the court that prenatal injury to a child should not go unrequited by the one at fault. If, however, an unborn child is to be endowed with the right to enforce such requital by an action at law, I think that right should not be created by a judicial decision on the facts in a single case. Better, I believe, that the right should be the product of legislative action taken after hearings at which the Legislature can be advised, by the aid of medical science and research, not only as to the stage of gestation at which a foetus is considered viable, but also as to appropriate means — by time limitation for suit and otherwise — for avoiding abuses which might result from the difficulty of tracing causation from prenatal injury to postnatal deformity.

When, in England, the right — unknown to the common law — was created which permitted suit to recover damages for negligently causing the death of a human being, it was accomplished by legislative action. In our own jurisdiction a similar right of action — carefully limited as to time and by other measures to prevent abuse — has long been the subject of statute law adopted by the process incident to statutory enactment. That same process, in my opinion, is peculiarly appropriate for the solution of the problem now before us where unknown factors abound.

Accordingly, I dissent and vote for affirmance.

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

Judgments reversed, etc.

       Lord Campbell’s Act, 9 & 10 Vict., ch. 93.

       Decedent Estate Law, art. 5.


author: Per Curiam.

text:
    In the Matter of Court & Remsen Building Corp., Respondent. Hillard Pollack et al., Appellants.
    Argued October 11, 1951;
    decided December 6, 1951.

      Victor Whitehorn and Jules Whitehorn for appellants.
    I. The landlord is not entitled to relief under the first subdivision of section 4. (Matter of Barry Equity Corp. [Marcia Hat Co.], 276 App. Div. 685; Matter of Relmar Operating Corp. [Roffer], 297 N. Y. 609; Matter of Court Square Bldg. v. City of New York, 298 N. Y. 380; Matter of Connors, 275 App. Div. 799.) II. The 1950 amendment to section 4 applies to subdivision 1 as well as to subdivision 2. (Bowles v. Willingham, 321 U. S. 503; Teeval Co. v. Stern, 301 N. Y. 346.)

      Orrin G. Judd, Martin S. House and Morris A. Wirth for respondent.
    I. Petitioner was entitled under subdivision 1 of section 4 to receive the fair rental value of the space occupied by appellants, free of the 15% limitation inserted in subdivision 2 by the 1950 Legislature. The 1950 amendment imposing a 15% limitation on rent increases was intended to apply only to subdivision 2 of section 4. (Matter of Noyes [Globe Wireless Ltd.], 277 App. Div. 1031; Matter of 792 Madison Ave., Inc. [Virag], 277 App. Div. 975; Sharkey v. Thurston, 268 N. Y. 123; Matter of Barry Equity Corp. [Marcia Hat Co.], 276 App. Div. 685; Matthews v. Matthews, 240 N. Y. 28; Orinoco Realty Co. v. Bandler, 233 N. Y. 24; Maresco v. Kauffman Dyeing & Finishing Works, 224 App. Div. 705; Piotrowski v. Cervi, 210 App. Div. 681.) II. The Legislature cannot constitutionally limit the court in a proceeding to fix rent of business space to a rent which does not provide a fair return on the full value of the property. (United Rys. v. West, 280 U. S. 234; Power Comm. v. Pipeline Co., 315 U. S. 575; Elvira Realty Co. v. Bracegirdle, 115 Misc. 197; Twentieth Century Associates v. Waldman, 294 N. Y. 571; Wasservogel v. Meyerowits, 300 N. Y. 125; Yakus v. United States, 321 U. S. 414.)
   Per Curiam.

Quite apart from other considerations, the absence of any evidence establishing the gross income received by the landlord from the property — recitals in a bill of particulars do not constitute proof (see, e.g., Roscoe Lbr. Co. v. Standard Silica Cement Co., 62 App. Div. 421, 423-424) — prevents the proceeding, concededly brought as an alternative square foot proceeding (Business Rent Law, § 4, subd. 2; McKinney’s Unconsol. Laws, § 8554, subd. 2), from being considered or treated as one under the original net fair return provision of the statute. (Business Rent Law, § 4, subd. 1; L. 1945, ch. 314, as amd.; McKinney’s Unconsol. Laws, § 8554, subd. 1; see Matter of Relmar Operating Corp. [Roffer], 297 N. Y. 609; Matter of Court Square Bldg. v. City of New York, 298 N. Y. 380; Matter of Fifth Madison Corp. [Gilden-J. B. Doblin, Inc.], 301 N. Y. 772.) That being so, the rental to be allowed the landlord was to be fixed at an amount not “ in excess of fifteen per centum greater than the amount of the rent being paid by the tenant ” (Business Rent Law, § 4, subd. 2, as amd. by L. 1950, ch. 326; McKinney’s Unconsol. Laws, § 8554, subd. 2), and, accordingly, the 15% limitation imposed by the referee on the rent increases granted to the landlord should not have been eliminated.

The order of the Appellate Division should be reversed, and that of Special Term affirmed, with costs in this court and in the Appellate Division.

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

Ordered accordingly. [See 303 N. Y. 803.]


text:
    Clayton A. Rugg, Jr., Respondent, v. State of New York, Appellant.
    (Motion No. 1654.)
    Argued November 21, 1951;
    decided December 6, 1951.

      Nathaniel L. Goldstein, Attorney-General (Ronald E. Coleman and Wendell P. Brown of counsel), for appellant.
    I. The Appellate Division did not have the power to consider claimant’s application de novo. (Scully v. State of New York, 275 App. Div. 1016; Travelers Fire Ins. Co. v. State of New York, 275 App. Div. 737; Schroeder v. State of New York, 252 App. Div. 16, 276 N. Y. 627; Webster v. State of New York, 257 App. Div. 902; N. Y. Const., art. VI, § 23; Matter of English, 275 App. Div. 148, 300 N. Y. 644; Waldo v. Schmidt, 200 N. Y. 199; Sherlock v. Manwaren, 208 App. Div. 538.) II. Claimant’s affidavit fell short of the statutory requirements of subdivision 5 of section 10 of the Court of Claims Act. (Robison v. State of New York, 263 App. Div. 240; Apropo v. State of New York, 161 Misc. 142, 252 App. Div. 803; Baxter v. State of New York, 189 Misc. 525, 273 App. Div. 839; Chergotis v. State of New York, 259 App. Div. 369; Schroeder v. State of New York, 252 App. Div. 16, 276 N. Y. 627.)

      Ernest B. Morris and Harold W. Katz for respondent.
    I. The Appellate Division had power to make the order appealed from. (Pietraroia v. New Jersey & H. R. Ry. & F. Co., 197 N. Y. 434; Hanover Fire Ins. Co. v. Tomlinson, 58 N. Y. 215; Toof v. State of New York, 286 N. Y. 620.) II. Claimant’s affidavit fully satisfied all the statutory requirements. (McMahon v. State of New York, 173 Misc. 1004.)
   Per Curiam.

The order appealed from is a nonunanimous reversal of a final order in a special proceeding and so no leave to appeal or certified questim was necessary (see Skakandy v. State of New York, 298 N. Y. 886; Natoli v. Board of Educ. of City of Norwich, 303 N. Y. 646). It cannot be said as matter of law that the allegations of the moving affidavit do not comply with subdivision 5 of section 10 of the Court of Claims Act, and, therefore, the matter of granting or denying the application was a discretionary one. The Appellate Division had full power to review the exercise of discretion in this respect by the Court of Claims, and thus had jurisdiction to reverse the Court of Claims’ order on questions of discretion, that is, of fact, but could not reverse the Court of Claims on the law. Since the Appellate Division’s order of reversal does not state whether its determination was upon the law or upon the facts, or upon the law and the facts, we are commanded by section 602 of the Civil Practice Act to “ presume that the questions of fact were not considered by the appellate division ”, and section 606 of the Civil Practice Act requires us to remit the matter to the Appellate Division for determination on the question of fact, that is, the question of discretion.

The order should be reversed, without costs, and the matter remitted to the Appellate Division pursuant to section 606 of the Civil Practice Act for determination of the questions of fact. The question certified is not answered.

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

Order reversed, etc.


text:
    In the Matter of the Claim of Daniel Moskowitz, Respondent. Edward Corsi, as Industrial Commissioner, Appellant.
    Submitted October 18, 1951;
    decided December 7, 1951.

      Nathaniel L. Goldstein, Attorney-General (Francis B. Curran and Wendell P. Brown of counsel), for appellant.
    I. Claimant’s employment falls within the provisions of subdivision 9 of section 511. He was a “ part-time worker ” within the meaning of the statute. (Matter of Renee [Corsi], 293 N. Y. 501.) II. Allowance of benefits based upon employment under the co-operative plan would discourage employers from entering into such plans.
    No appearance for respondent.
   Froessel, J.

Claimant performed services for an employer during portions of a period in which he was enrolled as a student in a junior college; the services were part of the college curriculum. We are here asked to decide whether or not such services are excluded from the term “ employment ” as defined in section 511 of the Unemployment Insurance Law (Labor Law, art. 18).

“ Employment ” as defined by subdivision 1 of said section “ means any service under any contract of employment for hire, express or implied, written, or oral.” Subdivision 9 thereof provides an exception in the following language: “ Day student. The term ‘ employment ’ does not include service during all or any part of the school year or regular vacation periods as a part-time worker of any person actually in regular attendance during the day time as a student in an institution of learning.”

The Industrial Commissioner declared claimant ineligible for benefits. The referee sustained the commissioner. The Unemployment Insurance Appeal Board reversed the referee, holding that claimant’s employment was covered by the law since he worked full time in the employer’s establishment during hours which normally prevailed in the industry, and that during the time he rendered this service he was not actually in regular attendance during the day as a student in an institution of learning. The Appellate Division, by a divided court, affirmed the decision of "the board.

The facts are undisputed and briefly are as follows: On March 24, 1947, claimant matriculated in- the Walter Hcrvey Junior College sponsored by the Young Men’s Christian Association of the City of New York, which operates under what is known as a co-operative plan, by which periods of instruction alternate with periods of employment which the school attempts to provide for its students. The course of study generally embraces two and one-quarter years consisting of five quarters of school attendance and four quarters of employment in industry in such fields as will utilize students’ training at school. Although it is the object of the school to refer students to employment closely related to their courses of study, when such employment is unavailable they are directed to accept any employment, on the theory that all employment has some educational value.

After enrolling, claimant attended school for the second and third quarters of 1947, devoting his full time to study. During the fourth quarter, he was employed on a full-time basis as an office clerk by Whitehead Metal Products Company at the prevailing rate of wages, working under the supervision of an auditor in the accounting department. During the first quarter of 1948 he returned to the school, was re-employed by the same employer during the second quarter, returned to school during the third quarter, and to the same employment during the last quarter, lie returned to school in 1949 and was graduated on June 8th of that year.

During the periods of claimant’s employment, his employer covered him for workmen’s compensation, and made deductions for social security and withholding taxes. The employer also paid contributions on claimant’s earnings for State unemployment insurance, which were subsequently refunded to him after the referee’s decision.

The curriculum of this school, approved by the Board of Regents, is thus one of classroom study in combination with actual job experience, alternating generally every three months. The school, like other junior colleges, is a development arising from the demand for educational advantages greater than those afforded by high schools in order to provide trained young men for executive and administrative positions in business and industry. In this case, over the period of the course (business administration accounting) of two and one-quarter years, claimant was employed for three different quarters and attended school the remaining six quarters. His last six months were spent at school. His tuition while employed continued, though at a much reduced amount “ for the surveillance of the students while they are on the job * * * for the paper work, for the assisting of the employer and their incidentals.” The student, if he wished a job with a “ cooperative ” employer after graduation, “ would have to practically re-apply as a new employee.”

The Industrial Commissioner, appellant, relies upon our decision in Matter of Renee (Corsi) (293 N. Y. 501) and contends that such factors as working during regular hours and at prevailing wages for the three-month periods are not controlling in this case; they serve merely to give the student a realistic experience under actual conditions. In our opinion, he is correct in his position. In the Renee case, we considered the history of the statute before us and the decisions rendered thereunder. We, also, had occasion to construe the term “ part time worker ” as used in the statute as then framed (§ 502, subd. 1, par. [5]), which excepted from the definition of employment “ (5) Employment as a part time worker of any person actually in regular attendance during the day time as a student in an institution of learning.” We there formulated the following test (p. 504): From the foregoing, it is apparent that the definition of ‘ part time worker ’ is not easy to formulate. We cannot say that regular attendance during the daytime as a student in an institution of learning makes every claimant ipso facto a * part time worker.’ * * * The better test to apply, we think, is to examine the intent of the worker as disclosed by all the circumstances of the case so as to determine whether the work in question is engaged in as a permanent method of earning a livelihood or is engaged in as a temporary job taken on and performed along with normal school work and subordinate thereto ’ ’ and held that, since claimant was not required to work in order to continue her schooling, and graduation was not dependent upon her employment, her schooling was “ subordinate thereto. ’ ’

Applying the test there formulated to the facts of this case, and in the light of the language of the present statute, it is clear that the employment of claimant Moskowitz was entirely subordinate to his schoolwork, and that he was a part-time worker. Aside from the fact that it was a required part of the college’s educational program, which had been approved by the Board of Regents and which he was then undertaking, it was understood by all concerned that by the very terms and conditions of the employment it was of a temporary nature performed along with and subordinate to his school work and was not engaged in as a permanent method of earning a livelihood ”. It was in fact a part of his school curriculum ; the school kept him under surveillance; he continued to pay tuition fees, though in a reduced amount, during the period of employment; he was never in the labor market during this period and was never discharged' from the employment; the employment simply ceased at the end of three months’ intervals for the express purpose of carrying out the school program. Without it, he could not be graduated.

Nor does anything turn on the circumstance that during the employment he would have received the benefits of the Workmen’s Compensation Law, and that the employer was required to pay a tax with respect to his wages under the Federal Unemployment Tax Act (Internal Revenue Code, §§ 1601, 1607; U. S. Code, tit. 26), for there is no exclusionary provision in these statutes similar to the one here under consideration. Had claimant here attended school for half a day and worked for the remaining half day, there could be no question but that he was a part-time employee; instead of dividing each day between school attendance and employment, the school authorities determined it was best for the student to divide his time at three months’ intervals; and we see no difference between the two situations.

Matter of Schulman (Miller) (290 N. Y. 587) relied upon by the board, has no application here. There, we dealt with the statute before the amendment of 1942 (L. 1942, ch. 402) which changed the language of the section so as to include within the exception “ Employment during all or any part of the school year or regular vacation periods ® We held in that case that employment during the summer vacation period was not within the exclusionary language of the statute as then framed. In the instant case the school has no summer vacation period, and claimant was continuously enrolled throughout the course.

It was while the Schulman case (supra) was pending in the courts that the Legislature amended the statute to exclude employment “ during all or any part of the school year or regular vacation periods ” (emphasis supplied). The purpose of that amendment was to exclude from covered employment the excepted services performed by a day student, and at the present time there is no difference between services performed during the school year and those performed during a regular vacation period. The amendment furnishes additional and concrete evidence that it was not the intention of the Legislature that, to come within the exception, part-time work must be performed on the same day that the student attends school; otherwise, the amendment as to vacation periods, etc., would be utterly meaningless. As we held in the Renee case (supra), the true nature of the employment in relation to the schooling is the determining factor.

It is therefore our opinion that the revised initial determination of the commissioner was correct and that this employment was excluded from coverage by virtue of the provisions of subdivision 9 of section 511 of the Labor Law. Accordingly, the order of the Appellate Division should be reversed, and the revised initial determination of the Industrial Commissioner reinstated, without costs.

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

Order reversed, etc.