author: Fuld, J.

text:
    Antonio Campo, Appellant, v. Curtiss Scofield et al., Respondents.
    Argued October 10, 1950;
    decided November 30, 1950.

      Albert J. Waterman and George W. Watson for appellant.
    I. The complaint sufficiently alleges plaintiff’s right to recover for defendants’ failure to equip the machine with a guard. (O’Connell v. Westinghouse X-Ray Co., 261 App. Div. 8, 288 N. Y. 486; O’Connor v. Webber, 219 N. Y. 439; Mitchell v. Reichman, 266 N. Y. 476; Smith v. Peerless Glass Co., 259 N. Y. 292; Thomas v. Winchester, 6 N. Y. 397; Locke v. Pembroke, 280 N. Y. 430; Moore v. Bonbright & Co., 202 App. Div. 281.) II. The complaint sufficiently states a cause of action against defendants for their negligent failure to equip the machine with a stopping device, thereby aggravating plaintiff’s injuries. (Deegan v. Gutta Percha & Rubber Mfg. Co., 131 App. Div. 101; Collins v. Waterbury Co., 144 App. Div. 670; Johansen v. Eastmans Co., 44 App. Div. 270; Weitzman v. Nassau Elec. R. R. Co., 33 App. Div. 585; Dyer v. Broadway Central Bank, 252 N. Y. 430; Imperatrice v. Imperatrice, 298 N. Y. 549.)

      James M. Ryan for respondents.
    I. The sole theory upon which defendants ’ liability can be based is breach of a duty owed by a manufacturer to one using the manufactured article in the ordinary and expected manner. (Turner v. Edison Stor. Battery Co., 248 N. Y. 73; Glanzer v. Shepard, 233 N. Y. 236; Ultramares Corp. v. Touche, 255 N. Y. 170.) II. The complaint fails to state a cause of action. (Thomas v. Winchester, 6 N. Y. 397; Devlin v. Smith, 89 N. Y. 470; Davies v. Pelham Hod Elevating Co., 65 Hun 573; Longmeid v. Holliday, 6 Exch. 761, 155 Eng. Rep. 752; George v. Skivington, L. R. 5 Ex. 1; MacPherson v. Buick Motor Co., 217 N. Y. 382; Junkermann v. Tilyou Realty Co., 213 N. Y. 404; Rosebrock v. General Elec. Co., 236 N. Y. 227; Smith v. Peerless Glass Co., 259 N. Y. 292; Genesee County Patrons Fire Relief Assn. v. Sonneborn Sons, 263 N. Y. 463; Auld v. Sears, Roebuck & Co., 261 App. Div. 918, 288 N. Y. 515; M’Alister v. Stevenson, [1932] A. C. 562; Grant v. Australian Knitting Mills, [1936] A. C. 85.)
   Fuld, J.

Plaintiff, working on his son’s farm, was engaged in feeding onions into an ‘ ‘ onion topping ’ ’ machine, when his hands became caught in its revolving steel rollers and were badly injured. He brought suit against defendants, manufacturers of the machine, alleging that they had been negligent in failing to equip it with a guard or stopping device. The sufficiency of the complaint is challenged by motion under rule 106 of the Rules of Civil Practice.

The topping machine, on wheels and attached to a tractor which supplied the power for its operation, consisted of four hard steel rollers about four feet long and three inches wide set in a rectangular iron frame with wooden sides. The cutting was accomplished by the revolving and grinding of the steel rollers. In order to start or stop it, it was necessary to shift the gear on the tractor about fifteen feet away from where the operator of the machine stood.

The complaint — as supplemented by a bill of particulars — alleges that defendants manufactured and sold to Henry Benthin an onion-topping machine and that in November of 1945, while plaintiff was assisting in the harvesting of a crop of onions on the farm of his son and while he was dumping a crate of onions into the machine, his hands became caught in its revolving rollers and were so injured that it became necessary to amputate them; that defendants impliedly represented to the public, and to plaintiff who relied on the representations, that the machine had been properly designed, manufactured and guarded and was a safe and proper machine to be used for topping onions, whereas in fact it was inherently dangerous; that the machine was “ negligently manufactured, constructed, and designed in that defendants “ negligently and carelessly failed and omitted to provide and supply any guard or guards of any kind that would prevent the user of said machine from coming in contact with the * * * rollers * * * although it was entirely practicable and feasible ’' to have done so; and that, in addition, defendants were negligent in failing to provide appliances * * * by the use of which * * * [the machine and rollers] might have been stopped or thrown out of gear before the hands of the plaintiff became caught in the pinch between the swift revolving rollers * * * thus lessening the extent of the injuries to the said plaintiff ”.

Since there is no claim of privity of contract between the defendant manufacturer and plaintiff, the complaint cannot, of course, be sustained on any theory of implied warranty. (See, e.g., Turner v. Edison Stor. Battery Co., 248 N. Y. 73.) If it is to be upheld, it must be because it states a cause of action in negligence. The Appellate Division ruled that it does not, and we agree.

The cases establish that the manufacturer of a machine or any other article, dangerous because of the way in which it functions, and patently so. owes to those who use it a duty merely to make it free from latent defects and concealed dangers. Accordingly, if a remote user sues a manufacturer of an article for injuries suffered, he must allege and prove the existence of a latent defect or a danger not known to plaintiff or other users. Examination of the complaint before us reveals the absence of any such recital. Apart from the purely conclusory allegations that the machine was negligently designed and constructed and was in a defective and imminently dangerous condition — which of course do not spell out a cause of action (see, e.g., Schweitzer v. Mindlin, 248 N. Y. 560; see, also, 3 Carmody on New York Practice [2d ed.], § 915, pp. 1745-1754) — the complaint merely recites that defendants failed and omitted to provide any guards that would prevent the user of the machine from coming in contact with the revolving rollers and to provide a stopping device by means of which one whose hand became caught in the rollers could stop the machine and thereby lessen the extent of the injury. Entirely lacking is the slightest suggestion that the machine possessed a latent defect or a danger unknown to plaintiff; entirely lacking is any recital that the absence of guards or a stopping device was unknown to him; and entirely lacking is any allegation of fact indicating that defendants foresaw or should reasonably have foreseen a danger to one using the machine for its intended purpose. As we have observed, those omissions are fatal.

If a manufacturer does everything necessary to make the machine function properly for the purpose for which it is designed, if the machine is without any latent defect, and if its functioning creates no danger or peril that is not known to the user, then the manufacturer has satisfied the law’s demands. We have not yet reached the state where a manufacturer is under the duty of making a machine accident proof or foolproof. Just as the manufacturer is under no obligation, in order to guard against injury resulting from deterioration, to furnish a machine that will not wear out (see Auld v. Sears, Roebuck & Co., 288 N. Y. 515, affg. 261 App. Div. 918), so he is under no duty to guard against injury from a patent peril or from a source manifestly dangerous. To illustrate, the manufacturer who makes, properly and free of defects, an axe or a buzz saw or an airplane with an exposed propeller, is not to be held liable if one using the axe or the buzz saw is cut by it, or if some one working around the airplane comes in contact with the propeller. In such cases, the manufacturer has the right to expect that such persons will do everything necessary to avoid such contact, for the very nature of the article gives notice and warning of the consequences to be expected, of the injuries to be suffered. In other words, the manufacturer is under no duty to render a machine or other article “ more ” safe — as long as the danger to be avoided is obvious and patent to all.

To impose upon a manufacturer the duty of producing an accident-proof product may be a desirable aim, but no such obligation has been — or, in our view, may be — imposed by judicial decision. Suffice it to note that, in cases dealing with a manufacturer’s liability for injuries to remote users, the stress has always been upon the duty of guarding against hidden defects and of giving notice of concealed dangers. (See, e.g., Rosebrock v. General Elec. Co., 236 N. Y. 227 [electric transformers, improperly packed]; MacPherson v. Buick Motor Co., 217 N. Y. 382 [defective automobile wheel]; Statler v. Ray Mfg. Co., 195 N. Y. 478 [imperfectly manufactured coffee urn]; Torgesen v. Schultz, 192 N. Y. 156 [defective aerated water bottle]; Devlin v. Smith, 89 N. Y. 470 [imperfectly constructed scaffold].) In point of fact, several of the cases actually declare that a duty is owed, a liability imposed, only if the defect or danger be not “ known ” or patent ” or discoverable “ by a reasonable inspection ”. (Genesee Co. Patrons Fire Relief Assn. v. Sonneborn Sons, 263 N. Y. 463, 468; see, also, Noone v. Fred Perlberg, Inc., 268 App. Div. 149, 152, affd. 294 N. Y. 680; O’Connell v. Westinghouse X-Ray Co., 288 N. Y. 486, revg. 261 App. Div. 8; see, also, Grant v. Australian Knitting Mills [1936] A. C. 85; Restatement of Law of Torts, § 388, comment i, p. 1047; 3 Cooley, Law of Torts [4th ed.], § 498; Bohlen, Studies in the Law of Torts [1926], p. 126.) Language particularly apt was used by the Privy Council of England in the Grant case (supra, [1936] A. C. 85); after calling attention to the fact that in Donoghue v. Stevenson ([1932] A. C. 562), “ the danger was hidden, and the thing * * * dangerous only because of want of care in making it ’ ’, the tribunal went on to say: ‘ ‘ One further point may be noted. The principle of Donoghue’s case [1932] A. C. 562, 583, 595 [i.e., the MacPherson v. Buick Motor Co. doctrine] can only be applied where the defect is hidden and unknown to the consumer, otherwise the directness of cause and effect is absent: the man who consumes or uses a thing which he knows to be noxious cannot complain in respect of whatever mischief follows, because it follows from his own conscious volition in choosing to incur the risk or certainty of mischance ” (p. 105). And Professor Bohlen in his work on Torts, after noting “ the impolicy of requiring the manufacturer to make so perfect a machine as to be incapable of injurious misuse ”, goes on to say (op. cit., p. 126): “ As to this there can be no two opinions, but there is no need to invoke public policy to afford this protection. The manufacturer cannot be required to contemplate a misuse by any careless, ignorant, or incompetent person into whose hands the machine may come; injury through the medium of such an agency is neither a probable nor natural result of anything done or left undone by the maker. ’ ’

There have been a number of cases in other states involving injuries from farming machinery and implements in which the courts have refused after trial to hold manufacturers negligent merely because the equipment was dangerous and no guards were furnished. (See, e.g., Stevens v. Allis-Chalmers Mfg. Co., 151 Kan. 638; Foster v. Ford Motor Co., 139 Wash. 341; Yaun v. Allis-Chalmers Mfg. Co., 253 Wis. 558; see, also, Davis v. Sanderman, 225 Iowa 1001.) In the Yaun case (supra, 253 Wis. 558), plaintiff, while working on a hay baler, fell in such a way that his arm was caught between the unguarded rollers of the machine and was crushed. He sued the manufacturer and prevailed in the trial court. He sought an affirmance upon the theory that a manufacturer of an article functionally dangerous is liable to a user who sustains injuries “ ‘ by reason of the manufacturer failing to exercise reasonable care in the adoption of a safe plan or design * * * whether the danger be open or hidden ’ ” (emphasis supplied; p. 563). The Wisconsin Supreme Court, holding that such was not the law, reversed the judgment and dismissed the complaint. Pointing out that “ The danger of the rollers was apparent in the present case ”, the court quoted from one of its earlier decisions (Dugenske v. Wyse, 194 Wis. 159, 165) as follows: “ It is true that a silo filler is a simple device. Any person of ordinary intelligence must be presumed to know that if his fingers got between the rollers and under the knives, serious consequences would result ’ ” (p. 568). And, added the court, If respondent’s contention were sound, every meat grinder or other machine capable of mangling fingers would be an instrument the safe use of which would be guaranteed by the manufacturer ” (p. 569).

It may well be argued that, since the development of mechanical contrivances has created so many new dangers, manufacturers should be compelled to equip complicated modern machinery with all possible protective guards or other safety devices. If, however, the manufacturer’s liability is to be so extended, if so fundamental a change is to be effected, we deem it the function of the legislature rather than of the courts to achieve that change. (See Roscoe Pound, New Theories of Liability, 8 Bar Bulletin, N. Y. Co. Lawyers Assn. [May, 1950], pp. 32, 35.) In Wisconsin, for instance, such a course has been adopted with respect to “ corn shredders ”; a statute requires such machines to be provided “ with safety or automatic feeding devices ’ ’ in order to protect their operators from ‘ ‘ accident by the snapping rollers, husking rollers, and shredding knives ” (Wis. Stat., 1949, § 167.12, p. 2072). The legislature of this state, however, has not acted in the field, having chosen to impose a duty only upon employers to furnish guards for certain types of machinery and appliances used in factories. (See Labor Law, § 256; see, also, e.g., Matter of Gawrys v. Buffalo Bolt Co., 276 App. Div. 1035; McEwen v. Borden’s Condensed Milk Co., 214 N. Y. 674.)

In conclusion, then, since the duty owed by a manufacturer to remote users does not require him to guard against hazards apparent to the casual observer or to protect against injuries resulting from the user’s own patently careless and.improvident conduct, the complaint was properly dismissed.

The judgment of the Appellate Division should be affirmed, with costs.

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

Judgment affirmed.


source: Caselaw Access Project

author: Lewis, J.

license: Public Domain

text:
    Robert Thompson, as Chairman of the Communist Party of the State of New York, et al., Appellants, v. William J. Wallin et al., Constituting the Board of Regents of the University of the State of New York, Respondents. In the Matter of Charles L’Hommedieu et al., Appellants, against Board of Regents of the University of the State of New York et al., Respondents. Abraham Lederman, as President of Teachers Union of the City of New York, Local 555 of the United Public Workers, et al., Plaintiffs, and Irving Adler et al., Appellants, v. Board of Education of the City of New York, Respondent.
    Argued October 11, 1950;
    decided November 30, 1950.

      Abraham Unger, Osmond K. Fraenkel, David M. Freedman and Bernard Jaffe for appellants in first above-entitled action.
    I. Chapter 360 of the Laws of 1949 is a bill of attainder, in violation of the Constitution of the United States (art. I, § 10). (United States v. Lovett, 328 U. S. 303; American Communications Assn. v. Douds, 339 U. S. 382; Cummings v. Missouri, 4 Wall. [U. S.] 277.) II. The Legislature has no constitutional right and lacks the legislative power to judge the doctrines of the Communist party or other organizations, to direct the Board of Regents to place them upon a subversive list based upon its judgment of their doctrine, and to disqualify their members as public school teachers because of that doctrine (U. S. Const., 14th, 1st, 9th Amendts.; N. Y. Const., art. I, §§ 8, 9). (Martin v. Hunter’s Lessee, 1 Wheat. [U. S.] 304; M’Culloch v. Maryland, 4 Wheat. [U. S.] 316; West Virginia State Bd. of Educ. v. Barnette, 319 U. S. 624; United States v. Dennis, 183 F. 2d 201; Whitney v. California, 274 U. S. 357; Matter of Bridgman v. Kern, 257 App. Div. 420; Ex parte Milligan, 4 Wall. [U. S.] 2; De Jonge v. Oregon, 299 U. S. 353.)

      Frederic A. Johnson, Osmond K. Fraenkel, Fred G. Moritt and Morris Eisenstein for appellants in second above-entitled proceeding.
    The Feinberg Law vests judicial power over civil rights in an administrative body contrary to the constitutional guarantees of due process and of equal protection of the laws, it is an ex post facto law; and, a bill of attainder. (Whitney v. California, 274 U. S. 357; Palko v. Connecticut, 302 U. S. 319; Staten Is. Edison Corp. v. Maltbie, 296 N. Y. 374; Matter of Tompkins v. Board of Regents of Univ. of State of N. Y., 299 N. Y. 469; Matter of Friedel v. Board of Regents of Univ. of State of N. Y., 296 N. Y. 347; Adams v. United States ex rel. McCann, 317 U. S. 269; Kring v. Missouri, 107 U. S. 221.)

      Nathaniel L. Goldstein, Attorney-General (Wendell P. Brown and Ruth Kessler Toch of counsel), for respondents in first above-entitled action and second above-entitled proceeding.
    I. The standards for qualification as teachers in the public schools of this State are statutory, fixed by the Legislature which may, constitutionally, require as qualification, and declare as disqualification, factors other than scholastic, including, as a qualification, adherence to the form of Government of the United States, and as a disqualification, advocacy of the overthrow of the Government by force, violence or other unlawful means. (Hawker v. New York, 170 U. S. 189; Patsone v. Pennsylvania, 232 U. S. 138; McAuliffe v. Mayor of New Bedford, 155 Mass. 216; United Public Workers v. Mitchell, 330 U. S. 75; American Communications Assn. v. Douds, 339 U. S. 382; United States v. Dennis, 183 F. 2d 201; People v. Crane, 214 N. Y. 154, 239 U. S. 195; Heim v. McCall, 214 N. Y. 629, 239 U. S. 175; Friedman v. Schwellenbach, 159 F. 2d 22; Washington v. Clark, 84 F. Supp. 964; Washington v. McGrath, 182 F. 2d 375; Matter of Rabouine v. McNamara, 275 App. Div. 1052; Matter of Koral v. Board of Educ. of City of N. Y., 197 Misc. 221; Matter of Davis v. Impelliteri, 197 Misc. 162; Weinstock v. Ladisky, 197 Misc. 859; Barsky v. United States, 167 F. 2d 241, 334 U. S. 843.) II. The Feinberg Law does not infringe upon the freedoms guaranteed by the Constitution. Moreover, these freedoms are not absolute rights. They do not render the Government impotent to protect its existence as against those who advocate its overthrow by force. (American Communications Assn. v. Douds, 339 U. S. 382; United States v. Dennis, 183 F. 2d 201; Gitlow v. New York, 268 U. S. 652; Whitney v. California, 274 U. S. 357; United States ex rel. Milwaukee Social Dem. Pub. Co. v. Burleson, 255 U. S. 407; Barsky v. United States, 167 F. 2d 241, 334 U. S. 843.) III. Courts will not substitute their judgment for that of the legislative arm of the Government as to the necessity or desirability of a statute. (Johnson v. City of New York, 274 N. Y. 411; People v. Nebbia, 262 N. Y. 259; Schieffelin v. Goldsmith, 253 N. Y. 243; American Communications Assn. v. Douds, 339 U. S. 382; United States v. Petrillo, 332 U. S. 1; Secretary of Agric. v. Central Roig Refining Co., 338 U. S. 604.) IV. The Feinberg Law is constitutional under the “ clear and present danger ” test correctly applied. That test does not mean that legislative action may not be taken to deal with substantive threat to the nation’s security before the danger is imminent. (Dunne v. United States, 138 F. 2d 137.) V. The Feinberg Law does not infringe in any respect upon the requirements of procedural due process. Moreover, no possible, procedural problems in administration may be made the basis for attack upon the constitutionality of a statute itself. (Minnesota ex rel. Pearson v. Probate Ct. of Ramsey Co., 309 U. S. 270; American Power & Light Co. v. Securities & Exch. Comm., 329 U. S. 90; United States v. Petrillo, 332 U. S. 1; Matter of Newbrand v. City of Yonkers, 285 N. Y. 164.)

      Samuel M. Birnbaum and Solomon Kreitman for American Legion Department of New York, amicus curiæ, in support of respondents’ position in first above-entitled action.
    I. Public office employment is not a right but a privilege. (People v.
      Crane, 214 N. Y. 154, 239 U. S. 195; Heim v. McCall, 214 N. Y. 629, 239 U. S. 175; Atkin v. Kansas, 191 U. S. 207.) II. The exclusion of teachers, etc., as defined in section 12-a of the Civil Service Law and section 3022 of the Education Law, from the public school system is a valid exercise of the police power of the State. (Gitlow v. New York, 268 U. S. 652; Friedman v. Schwellenbach, 65 F. Supp. 254, 159 F. 2d 22; McAuliffe v. Mayor of New Bedford, 155 Mass. 216.) III. The fact that the Communist party may have received political recognition does not immunize it from an inquiry as to whether or not it constitutes a political movement which is subversive. (Lockheed Aircraft Corp. v. Superior Corp. of Los Angeles Co., 171 P. 2d 21 [Cal.]; Powell v. Unemployment Compensation Bd. of Review, 22 A. 2d 43 [Pa.]; Ex parte Hennen, 13 Pet. [U. S.] 230; White v. Berry, 171 U. S. 366; Ex parte Endo, 323 U. S. 283; Hirabayashi v. United States, 320 U. S. 81; Mencher v. Chesley, 297 N. Y. 94; Reiter v. American Legion, 189 Misc. 1053, 273 App. Div. 757.) IV. The legislative policy sot forth in the Feinberg Law is directed against all subversive movements. Its declaration with reference to the Communist party and certain of its affiliated organizations is supported by the courts, legislative findings and reports and many existing laws. (United States ex rel. Yokinen v. Commissioner of Immigration, 57 F. 2d 707; United States ex rel. Fortmueller v. Commissioner of Immigration, 14 F. Supp. 485; United States ex rel. Vajtauer v. Commissioner of Immigration, 273 U. S. 103; United States ex rel. Georgian v. Uhl, 271 F. 676; United States ex rel. Turner v. Williams, 194 U. S. 279.)

      Arthur Garfield Hays and Osmond K. Fraenkel for appellants in third above-entitled action.
    I. The laws and regulations interfere with freedom of speech, of the press, and of assembly. (West Virginia State Bd. of Educ. v. Barnette, 319 U. S. 624; Stromberg v. California, 283 U. S. 359; Thomas v. Collins, 323 U. S. 516; Winters v. New York, 333 U. S. 507; Gitlow v. New York, 268 U. S. 652; United Public Workers v. Mitchell, 330 U. S. 75; United States v. Thayer, 209 U. S. 39; People v. Crane, 214 N. Y. 154.) II. The presumption created by the Feinberg Law is unreasonable and denies due process of law. (Bailey v. Alabama, 219 U. S. 219; McFarland v. American Sugar Refining Co., 241 U. S. 79; Manley v. Georgia, 279 U. S. 1; Tot v. United

      States, 319 U. S. 463; Pollock v. Williams, 322 U. S. 4; Mobile, J. & K. C. R. R. Co. v. Turnipseed, 219 U. S. 35.)

      John P. McGrath, Corporation Counsel (Michael A. Castaldi, Seymour B. Quel and Morris Weissberg of counsel), for respondent in third above-entitled action.
    I. The Feinberg Law and section 12-a of the Civil Service Law are within the constitutional power of the Legislature to regulate the efficiency and integrity of the public service and to secure the State’s stability against incitements to insurrection or sedition by excluding from public service those who advocate or who are members of organizations which advocate the violent overthrow of the Government. (United Public Workers v. Mitchell, 330 U. S. 75; People v. Crane, 214 N. Y. 154; Matter of Haslett v. Minetti, 274 App. Div. 519; Bailey v. Richardson, 182 F. 2d 46; Matter of Rabouine v. McNamara, 275 App. Div. 1052; Matter of Epstein v. Board of Educ. of City of N. Y., 162 Misc. 718, 255 App. Div. 745, 279 N. Y. 784; Matter of McDowell v. Board of Educ. of City of N. Y., 104 Misc. 564; People v. Sandstrom, 279 N. Y. 523; Matter of Summers, 325 U. S. 561; Matter of Cassidy, 268 App. Div. 282, 296 N. Y. 926; Ohio ex rel. Clarke v. Deckebach, 274 U. S. 392; United Steel Workers of America v. National Labor Relations Bd., 170 F. 2d 247, 339 U. S. 382.) II. The Feinberg Law and section 12-a of the Civil Service Law do not deprive plaintiffs or any other person of freedom of speech, press or assembly. (Cox v. New Hampshire, 312 U. S. 569; United States ex rel. Turner v. Williams, 194 U. S. 279; People v. Gitlow, 234 N. Y. 132, 268 U. S. 652; Whitney v. California, 274 U. S. 357; Dunne v. United States, 138 F. 2d 137; Schenck v. United States, 249 U. S. 47; Chaplinsky v. New Hampshire, 315 U. S. 568.) III. The Feinberg Law and section 12-a of the Civil Service Law do not deprive plaintiffs or any other person of liberty or property without due process of law or of the equal protection of the laws. (American Communications Assn. v. Douds, 339 U. S. 382; Whitney v. California, 274 U. S. 357; Dunne v. United States, 138 F. 2d 137; Cole v. Arkansas, 338 U. S. 345; Bi-Metallic Investment Co. v. State Bd. of Equalization of Colorado, 239 U. S. 441; Norwegian Nitrogen Products Co. v. United States, 288 U. S. 294; Bowles v. Willingham, 321 U. S. 503; Pittsburgh Plate Glass Co. v. National Labor Relations Bd., 313 U. S. 146.) IV. The Feinberg Law and section 12-a of the Civil Service Law are not bills of attainder or ex post facto laws, and do not violate the merit and fitness provisions of the New York Constitution. (Cummings v. Missouri, 4 Wall. [U. S.] 277; McAuliffe v. Mayor of New Bedford, 155 Mass. 216.)
   Lewis, J.

An appeal in each of these three cases presents for our decision the constitutionality of section 3022 of the Education Law (L. 1949, ch. 360) commonly known, and hereinafter referred to as the Feinberg Law.

At the outset the fact should be noted that prior to the enactment of the challenged statute, the Legislature had prescribed statutory standards governing within the State not only the conduct of teachers and other employees in the public school system but also those persons employed throughout the broad field of State civil service. Thus we find that by the Laws of 1917, chapter 416, there was added to the Education Law, section 3021 (formerly § 568) which provides:

“ § 3021. Removal of superintendents, teachers and employees for treasonable or seditious acts or utterances. A person employed as superintendent of schools, teacher or employee in the public schools, in any city or school district of the state, shall be removed from such position for the utterance of any treasonable or seditious word or words or the doing of any treasonable or seditious act or acts while holding such position.”

Thereafter, the Legislature, by the Laws of 1939, chapter 547, added to the Civil Service Law, section 12-a which now provides:

“ 12-a. Ineligibility. No person shall be appointed to any office or position in the service of the state or of any civil division or city thereof, nor shall any person presently employed in any such office or position be continued in such employment, nor shall any person be employed in the public service as superintendents, principals or teachers in a public school or academy or in a state normal school or college, or any other state educational institution who: (a) By word of mouth or writing wilfully and deliberately advocates, advises or teaches the doctrine, that the government of the United States or of any state or of any political subdivision thereof should be overthrown or overturned by force, violence or any unlawful means; or
“ (b) Prints, publishes, edits, issues or sells, any book, paper, document or written or printed matter in any form containing or advocating, advising or teaching the doctrine that the government of the United States or of any state or of any political subdivision thereof should be overthrown by force, violence or any unlawful means, and who advocates, advises, teaches, or embraces the duty, necessity or propriety of adopting ®the doctrine contained therein;
“ (c) Organizes or helps to organize or becomes a member of any society or group of persons which teaches or advocates that the government of the United States or of any state or of any political subdivision thereof shall be overthrown by force or violence, or by any unlawful means;
“(d) A person dismissed or declared ineligible may within four months of such dismissal or declaration of ineligibility be entitled to petition for an order to show cause signed by a justice of the supreme court, why a hearing on such charges should not be had. Until the final judgment on said hearing is entered, the order to show cause shall stay the effect of any order of dismissal or ineligibility based on the provisions of this section. The hearing shall consist of the taking of testimony in open court with opportunity for cross-examination. The burden of sustaining the validity of the order of dismissal or ineligibility by a fair preponderance of the credible evidence shall be upon the person making such dismissal or order of ineligibility.”

It was ten years later — in 1949 — that the Legislature found within the State conditions existing which so adversely affected the public schools as to prompt the enactment of the Feinberg Law. The following statement by the Legislature — which prefaces the three operative sections of the statute —is declaratory of conditions found by the Legislature which prompted the enactment:

“ Section 1. The legislature hereby finds and declares that there is common report that members of subversive groups, and particularly of the communist party and certain of its affiliated organizations, have infiltrated into public employment in the public schools of the state. This has occurred and continues despite the existence of statutes designed to prevent the "appointment to or the retention in employment in public office and particularly in the public schools of the state of members of any organization which teaches or advocates that the government of the United States or of any state or of any political subdivision thereof shall be overthrown by force or violence or by any unlawful means. The consequence of any such infiltration into the public schools is that subversive propaganda can be disseminated among children of tender years by those who teach them and to whom the children look for guidance, authority and leadership. The legislature finds that members of such groups frequently use their office or position to advocate and teach subversive doctrines. The legislature finds that members of such groups are frequently bound by oath, agreement, pledge or understanding to follow, advocate and teach a prescribed party line or group dogma or doctrine without regard to truth or free inquiry. The legislature finds that such dissemination of propaganda may be and frequently is sufficiently subtle to escape detection in the classroom. It is difficult, therefore, to measure the menace of such infiltration in the schools by conduct in the classroom. The legislature further finds and declares that in order to protect the children in our state from such subversive influence it is essential that the laws prohibiting persons who are members of subversive groups, such as the communist party and its affiliated organizations, from obtaining or retaining employment in the public schools, be rigorously enforced. The legislature deplores the failure heretofore to prevent such infiltration which threatens dangerously to become a commonplace in our schools. To this end, the hoard of regents, which is charged primarily with the responsibility of supervising the public school systems in the state, should be admonished and directed to take affirmative action to meet this grave menace and to report thereon regularly to the state legislature.”

To meet conditions thus found to exist and as a preventive measure against the dissemination of subversive propaganda among children in the public schools the Legislature enacted the Feinberg Law which is now the subject of attack by the appellants as violating provisions of both the Federal and State Constitutions. The law thus challenged, which the Laws of 1949, chapter 360, added to the Education Law as section 3022, provides as follows:

§ 3022. Elimination of subversive persons from the public school system. 1. The hoard of regents shall adopt, promulgate, and enforce rules and regulations for the disqualification or removal of superintendents of schools, teachers or employees in the public schools in any city or school district of the state who violate the provisions of section three thousand twenty-one of this article or who are ineligible for appointment to or retention in any office or position in such public schools on any of the grounds set forth in section twelve-a of the civil service law and shall provide therein appropriate methods and procedure for the enforcement of such sections of this article and the civil service law.
2. The board of regents shall, after inquiry, and after such notice and hearing as may be appropriate, make a listing of organizations which it finds to be subversive in that they advocate, advise, teach or embrace the doctrine that the government of the United States or of any state or of any political subdivision thereof shall be overthrown or overturned by force, violence or any unlawful means, or that they advocate, advise, teach or embrace the duty, necessity or propriety of adopting any such doctrine, as set forth in section twelve-a of the civil service law. Such listings may be amended and revised from time to time. The board, in making such inquiry, may utilize any similar listings or designations promulgated by any federal agency or authority authorized by federal law, regulation or executive order, and for the purposes of such inquiry, the board may request and receive from such federal agencies or authorities any supporting material or evidence that may be made available to it. The board of regents shall provide in the rules and regulations required by subdivision one hereof that membership in any such organization included in such listing made by it shall constitute prima facie evidence of disqualification for appointment to or retention in any office or position in the public schools of the state.
“ 3. The board of regents shall annually, on or before the fifteenth day of February, by separate report, render to the legislature, a full statement of measures taken by it for the enforcement of such provisions of law and to require compliance therewith. Such reports shall contain a description of surveys made by the board of regents, from time to time, as may be appropriate, to ascertain the extent to which such provisions of law have been enforced in the city and school districts of the state. * * * ”

In considering the criticism which the appellants level at the Feinberg Law we may not, of course, substitute our judgment for that of the Legislature as to the wisdom or expediency of the legislation. To do so would transcend limits of our field of inquiry. (American Communications Assn. v. Douds, 339 U. S. 382, 400-401; People v. Nebbia, 262 N. Y. 259, 271.) Within those limits we examine the challenged law to determine whether, as claimed by the appellants, either the Federal or State Constitution is violated by provisions in the statute that membership in any organization, which the Board of Regents — after inquiry, notice and hearing — shall find and list as advocating the overthrow of the government by violence or unlawful means, shall be prima facie evidence of disqualification for appointment or retention in the service of the public school system.

In considering the several grounds of constitutional attack we are mindful that the Feinberg Law serves to implement section 12-a of the Civil Service Law (quoted supra) — an implementation found by the Legislature to be expedient in view of certain existing circumstances which, as we have seen, the law-making body was careful to set forth in its declaration of legislative purpose. Such implementation, we note, prescribes a basis of disqualification for employment by State and municipal agencies of personnel essential to a constitutional function of the State — the education of its children. (N. Y. Const., art. XI, § 1.) We are also mindful that a public employee has no vested, proprietary right to his position which transcends the public interest or the general welfare of the community he serves. In other words public employment as a teacher is not an uninhibited privilege. True, there are limitations upon those grounds upon which public employment may be denied — for example an applicant’s religion. It does not follow, however, that the statutory proscription against membership in an organization which subscribes to subversive tenets or advocates the overthrow of government by violence or unlawful means may not be a legal basis for denying an application for public employment as a teacher, or for terminating such employment for cause after inquiry, due notice and hearing.

Concerned, as we are, with the qualification for public employment in the vital field of education, we regard the law here challenged as an effort by the Legislature to insert a new strand in the mesh by which a screening process is accomplished in the selection of those who teach the State’s children. Strands which serve a like purpose are found in section 3002 of the Education Law, which denies to any person the right to serve as a teacher in a public school until he or she shall have taken and subscribed an oath to support the Federal and State Constitutions; also in section 801 id., which requires that in all public schools instruction shall be given in “ patriotism and citizenship ”. As the Legislature has authority over the discipline and efficiency of public service, we think its judgment, as expressed in the restrictive provisions of the statute under review, bears a reasonable relation to the legislative purpose to safeguard the public school system. (See United Public Workers v. Mitchell, 330 U. S. 75, 100; American Communications Assn. v. Douds, supra, p. 405; New York ex rel. Bryant v. Zimmerman, 278 U. S. 63, 72-73; Patsone v. Pennsylvania, 232 U. S. 138, 144; Hawker v. New York, 170 U. S. 189, 192-197.) Those cases stand for the legal principle which prompted Judge Holmes — as he then was — to write in McAuliffe v. Mayor of New Bedford (155 Mass. 216, 220), the familiar statement: “ The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.”

Passing to the appellants’ claim that the disqualification for employment in the State’s public school system, prescribed by section 12-a of the Civil Service Law as implemented by the Feinberg Law, is incompatible with freedoms guaranteed by the First Amendment to the Federal Constitution and those guaranteed by section 8 of article I of the State Constitution: We know that the freedoms which the appellants now invoke are not absolute and that they do not deprive the State of its primary right to self-preservation. We are also aware that those freedoms do not sanction unbridled license. (People v. Gitlow, 234 N. Y. 132, 137, affd. sub nom. Gitlow v. New York, 268 U. S. 652, 666-667; Schenck v. United States, 249 U. S. 47, 52.) Indeed * * * it has long been established that those freedoms themselves are dependent upon the power of constitutional government to survive. If it is to survive it must have power to protect itself against unlawful conduct and, under some circumstances, against incitements to commit unlawful acts. ’ ’ (American Communications Assn. v. Douds, supra, p. 394.) When People v. Gitlow (supra), reached the Supreme Court of the United States the opinion there written contained the following statements which are apposite to this phase of our inquiry (pp. 666-668):

It is a fundamental principle, long established, that the freedom of speech and of the press which is secured by the Constitution, does not confer an absolute right to speak or publish, without responsibility, whatever one may choose, or an unrestricted and unbridled license that gives immunity for every possible use of language and prevents the punishment of those who abuse this freedom. * * * Reasonably limited, it was said by Story * * * this freedom is an inestimable privilege in a free government; without such limitation, it might become the scourge of the republic.
“ That a State in the exercise of its police power may punish those who abuse this freedom by utterances inimical to the public welfare, tending to corrupt public morals, incite to crime, or disturb the public peace, is not open to question. * * * Thus it was held by this Court in the Fox Case [236 U. S. 273], that a State may punish publications advocating and encouraging a breach of its criminal laws; and, in the Gilbert Case [254 U. S. 325], that a State may punish utterances teaching or advocating that its citizens should not assist the United States in prosecuting or carrying on war with its public enemies.
“ And, for yet more imperative reasons, a State may punish utterances endangering the foundations of organized government and threatening its overthrow by unlawful means. These imperil its own existence as a constitutional State. Freedom of speech and press, said Story (supra) does not protect disturbances to the public peace or the attempt to subvert the government. It does not protect publications or teachings which tend to subvert or imperil the government or to impede or hinder it in the performance of its governmental duties. * * * It does not protect publications prompting the overthrow of government by force; the punishment of those who publish articles which tend to destroy organized society being-essential to the security of freedom and the stability of the State. * * * And a State may penalise utterances which openly advocate the overthrow of the representative and constitutional form of government of the United States and the several States, by violence or other unlawful means. * * * In short this freedom does not deprive a State of the primary and essential right of self preservation; which, so long as human governments endure, they cannot be denied.” (Emphasis supplied.) (See, also, Cox v. New Hampshire, 312 U. S. 569, 574; Gilbert v. Minnesota, 254 U. S. 325, 332, 339; Schenck v. United States, supra, p. 52; Fox v. Washington, 236 U. S. 273, 276-277; Patterson v. Colorado, 205 U. S. 454, 462; United States ex rel. Turner v. Williams, 194 U. S. 279, 294; Robertson v. Baldwin, 165 U. S. 275, 281; People v. Most. 171 N. Y. 423, 431.)

In the three cases now before us it was obviously within the province of the Legislature to decide in the first instance whether conditions prevailed within the State which threatened the well-being of its public school system and called for some protective measure. By enacting the Feinberg Law the Legislature has found and has declared that conditions — referred to in the preamble to the statute in suit — did exist and were of such a character as to require the adoption of statutory measures which will protect public school children from subversive influences. That determination must be given great weight. Every presumption is to be indulged in favor of the validity of the statute, Mugler v. Kansas, 123 U. S. 623, 661; and it may not be declared unconstitutional unless it is an arbitrary or unreasonable attempt to exercise the authority vested in the State in the public interest.” (Whitney v. California, 274 U. S. 357, 371.) Paraphrasing what was written in Gitlow v. New York (268 U. S. 652, 669, supra), we cannot say, in view of circumstances set forth in the preamble to the statute, that the Legislature acted arbitrarily or unreasonably when, in the exercise of its judgment as to measures necessary to protect the public school system, it sought “ to extinguish the spark without waiting until it has enkindled the flame * * *; but it may, in the exercise of its judgment, suppress the threatened danger in its incipiency.”

Whether that danger was “ clear and present ” — within the rule of Schenck v. United States (supra, p. 52) as interpreted and applied in American Communications Assn. v. Douds (supra, pp. 393-400) — is answered by the Legislature’s factual finding that an infiltration of members of subversive groups into employment in the public schools of the State has occurred and continues; that the consequence of such infiltration is that subversive propaganda can be disseminated among children of tender years by those who teach them and to whom the children look for guidance, authority and leadership; and that members of such groups frequently use their office or position to advocate and teach subversive doctrines.

Giving the Legislature’s declaration of findings and purpose the weight to which it is entitled, we cannot say, upon the records before us, that the Feinberg Law is an unreasonable or arbitrary exercise of the police power of the State; nor can we say that it unwarrantably infringes upon any constitutional right of free speech, assembly or association.

The appellants also contend that the Feinberg Law is a bill of attainder and that, as such, it violates section 9 of article I of the Federal Constitution. As a basis for that assertion the appellants note the facts, stated in the preamble of the statute (supra) as findings by the Legislature, that there is common report that members of subversive groups “ and particularly of the communist party ” have infiltrated into public employment in the public, schools of the State; that members of such groups frequently use their position to advocate and teach subversive doctrines, and in consequence that subversive propaganda can be disseminated among children in attendance at the public schools.

A bill of attainder has been defined as " * * * a legislative act which inflicts punishment without a judicial trial.” (Cummings v. Missouri, 4 Wall. [U. S.] 277, 323.) By basing their argument upon excerpts from the preamble of the Feinberg Law appellants rely upon what is clearly a prefatory statement by which the Legislature has declared its purpose in adding new section 3022 to the Education Law. Such preamble enacts nothing, contains no directives and, as we have seen, is not made a part of the Education Law. (Pumpelly v. Village of Owego, 45 How. Prac. 219, 257.) Furthermore, a textual examination of the provisions of the Feinberg Law — section 3022 — in the light of the above-quoted definition of a bill of attainder, discloses that no organization is named in the body of the act where are prescribed the steps to be taken by the Board of Regents in listing organizations which it finds to be subversive. The text also makes provision for a hearing to be had on appropriate notice, which hearing is afforded any organization as to which the Board of Regents shall determine to institute an inquiry. It is also clear that no punishment is inflicted upon any organization which the Board of Regents — after hearing — shall find advocates the overthrow of government by force or unlawful means. (Cf. American Communications Assn. v. Douds, supra, pp. 413-414.) In the event such an organization is aggrieved by action taken by the Board of Regents under the statute, such action may be the subject of a proceeding under article 78 of the Civil Practice Act. We are thus led to conclude that the Feinberg Law has none of the legal characteristics of a bill of attainder.

There is also an assertion by the appellants that the statute is unconstitutionally vague. We find no lack of clarity in the operative clause to be found in subdivision 2 of section 3022, which directs the Board of Regents, after inquiry, notice and hearing, to list ‘‘ organizations which it finds to be subversive in that they advocate, advise, teach or embrace the doctrine that the government of the United States or of any state or of any political subdivision thereof shall be overthrown or overturned' by force, violence or any unlawful means, or that they advocate, advise, teach or embrace the duty, necessity or propriety of adopting any such doctrine, as set forth in section twelve-a of the civil service law.”

Under subdivision 2 of the statute no organization may be listed by the Board of Regents as subversive until “ after inquiry, and after such notice and hearing as may be appropriate ”. The statute also makes it clear that, when it appears that one who seeks to establish or retain employment in the State public school system knowingly holds membership in an organization named upon any listing for which subdivision 2 of section 3022 malos provision, proof of such membership ‘‘ shall constitute prima facie evidence of disqualification ” for such employment. But, as was said in Potts v. Pardee (220 N. Y. 431, 433): “ The presumption growing out of a prima facie case * * * remains only so long as there is no substantial evidence to the contrary. When that is offered the presumption disappears, and unless met by further proof there is nothing to justify a finding based solely upon it.” Thus the phrase “ prima facie evidence of disqualification ”, as used in the statute, imports a hearing at which one who seeks appointment to or retention in a public school position shall be afforded an opportunity to present substantial evidence contrary to the presumption sanctioned by the prima facie evidence for which subdivision 2 of section 3022 makes provision. Once such contrary evidence has been received, however, the official who made the 'order of ineligibility has thereafter the burden of sustaining the validity of that order by a fair preponderance of the evidence. (Civil Service Law, § 12-a, subd. [d].) Should an order of ineligibility then issue, the party aggrieved thereby may avail himself of the provisions for review prescribed by the section of the statute last cited above. In that view there here arises no question of procedural due process. Reading the statute in that way, as we do, we cannot say there is no rational relation between the legislative findings which prompted the enactment of the Feinberg Law and the measures prescribed therein to safeguard the public school system of the State.

We have seen that the Legislature and administrative agencies have authority over the discipline and efficiency of the public service. When in its judgment and discretion the Legislature finds acts by public employees which threaten the integrity and competency of a governmental service such as the public school system, legislation adequate to maintain the usefulness of the service affected is necessarily required to forestall such danger. Believing the Feinberg Law to be the Legislature’s answer to such a need, we find in that statute no restriction which exceeds the Legislature’s constitutional power.

The judgments and order should be affirmed, with costs.

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

Judgment accordingly.

       The following statement sets forth procedural steps taken prior to the present appeal to the Court of Appeals in each of the three cases under review:

        Thompson v. Wallin (276 App. Div. 463) is an action by the chairman and secretary of the “Communist Party of the State of New York” in which judgment is sought declaring the Feinberg Law unconstitutional and enjoining the defendant, the Board of Regents of the State of New York, from enforcing its provisions. At Special Term judgment on the pleadings was granted to the plaintiffs (196 Misc. 686). At the Appellate Division, Third Department, the judgment entered at Special Term was reversed on the law, the complaint was dismissed and judgment on the pleadings was granted to defendants declaring the statute constitutional.

        Matter of L’Hommedieu v. Board of Regents (276 App. Div. 494) is a proceeding under article 78 of the Civil Practice Act by persons now or formerly employed in the public school system of the City of New York who seek an order directing the defendants, Board of Regents and others “to disregard Chapter 360 of the Laws of 1949 [Feinberg Law], and to cease and desist from taking any steps, toward the enforcement of the provisions of said law * * * and to treat said enactment as a nullity * * At Special Term the statute was declared unconstitutional and the relief sought by the petitioners was granted (196 Misc. 686). At the Appellate Division, Third Department, the order of Special Term was reversed on the law and the petition dismissed.

        Lederman v. Board of Education of City of New York (276 App. Div. 527) is an action by Teachers Union, Local 555 of the United Public Workers, and others, in which judgment against the defendant Board of Education is sought declaring the Feinberg Law and section 12-a of the Civil Service Law and the rules and accompanying .memorandum issued by the Commissioner of Education, be declared unconstitutional and enjoining the defendant board and its agents from taking any action based upon said statutes, rules or memorandum. At Special Term the statutes, rules and memorandum thus challenged were declared unconstitutional arid the plaintiffs were granted judgment on the pleadings (196 Misc. 873). At The Appellate Division, Second Department, the judgment entered at Special Term, insofar as appealed from, was reversed on the law, the motion for judgment on the pleadings was denied, and the complaint was dismissed.

       Reference to the Session Laws of 1949 will disclose that the prefatory declaration of the legislative purpose — section 1 of chapter 360 of the Laws of 1949 — is not made a part of the Education Law.


text:
    The People of the State of New York, Respondent, v. James L. Schultz, Appellant.
    Argued October 2, 1950;
    decided November 30, 1950.

      William J. Gregg for appellant.
    The information is insufficient by reason of failure to inform defendant of the nature of the charge against him, of acts constituting it, to enable him to prepare for trial or prevent him from again being tried for the same offense. (People v. Zambounis, 251 N. Y. 94; People v. Grogan, 260 N. Y. 138; People ex rel. Allen v. Hagan, 170 N. Y. 46; People v. Olmsted, 74 Hun 323; People v. Pillion, 78 Hun 74; United States v. Hess, 124 U. S. 483; People v. Albow, 140 N. Y. 130; People v. Wacke, 77 Misc. 196.)

      Clare J. Hoyt, District Attorney (Abraham Isseks of counsel), for respondent.
    The information was sufficient to charge defendant with disorderly conduct in violation of subdivisions 1 and 2 of section 722 of the Penal Law. (People v. Grogan, 260 N. Y. 138; People v. Strope, 151 Misc. 580; People v. La Face, 148 Misc. 238; People v. Payne, 71 Misc. 72; People v. Huyck, 171 Misc. 467; People v. Hipple, 263 N. Y. 242.)
   Lewis, J.

By a judgment rendered in a Justice’s Court of the Town of Deerpark, Orange County, the defendant stands convicted of disorderly conduct in violation of subdivisions 1 and 2 of section 722 of the Penal Law. Insofar as material to our inquiry that statute provides:

“ Any person who with intent to provoke a breach of the peace, or whereby a breach of the peace may be occasioned, commits any of the following acts shall be deemed to have committed the offense of disorderly conduct:
“ 1. Uses offensive, disorderly, threatening, abusive or insulting language, conduct or behavior;
“ 2. Acts in such a manner as to annoy, disturb, interfere with, obstruct, or be offensive to others * * ”

By appropriate motions made at the opening of the trial and at the close of all the evidence the defendant challenged the legal sufficiency of the information upon which he was later convicted." His exception taken to the denial of those motions preserved his right to prosecute this appeal.

The information thus challenged accuses the defendant of having conducted himself in a manner unlawful, disorderly and offensive which annoyed and interfered with the “peace & normal pursuit of happiness, peace of mind of a considerable number of families and children of the Hamlet of Huguenot, N. Y. * * * ” in that he “ * * * did continually hang around the said Hamlet * * * picking up young boys and girls against the wishes & consent of the parents, and did use vile & indecent language towards others in presence of minors * * The places where it is charged those acts occurred are stated to be “ at the Hamlet of Huguenot, in the Town of Deerpark, County of Orange, N. Y.” The times when it is charged those acts were committed are stated to have been ‘ ‘ on the diverse days of (Between) July 11 to July 29, 1949 * * * at about divers hours o’clock in the after & forenoon of said day * * * all hours of the night & early morning ”,

Upon the law applicable to the problem here presented this court has had occasion to say: ‘ An information must set forth the acts constituting the crime with the same clarity as an indictment. * * * The defendant should be informed of the nature of the charge against him and of the act constituting it, not only to enable him to prepare for trial, but also to prevent him from again being tried for the same offense. * * * The requirement that an indictment and an information must state the crime with which a defendant is charged, and the particular acts constituting that crime is more than a technicality; it is a fundamental, a basic principle of justice and fair dealing, as well as a rule of law.” (People v. Zambounis, 251 N. Y. 94, 96, 97; and see People v. Grogan, 260 N. Y. 138, 142.)

Lacking, as does the information before us, a statement of reasonable exactitude as to when and where the acts were committed with which the defendant is charged, and in the absence of a statement that such acts were committed in a place where it tended to a breach of the public peace, we regard the information as legally insufficient. (See People v. Monnier, 280 N. Y. 77, 78-79; People v. McCauliff, 267 N. Y. 581, 582; People v. Perry, 265 N. Y. 362, 364; People v. Chesnick, 302 N. Y. 58, decided herewith.)

The judgments should be reversed and the information dismissed.

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

Judgments reversed, etc.


author: Per Curiam.

text:
    In the Matter of the Accounting of The New York Trust Company, as Trustee under the Will of Cortlandt F. Bishop, Deceased. Amy B. Bishop et al., Appellants; The New York Trust Company, Individually and as Trustee under the Will of Cortlandt F. Bishop, Deceased, et al., Respondents.
    Submitted November 20, 1950;
    decided November 30, 1950.

      John B. Doyle for motion.
    I. The Appellate Division knew, from the record before it, that there was only $6,806.48 in the income account as of October 22, 1946. The order of the Surrogate, therefore, provided that the trustee charge the sum of $7,868.70 “ against the income of said trust on hand as of the last day of said account, and accrued and to accrue thereafter This was a judicial act, not merely ministerial. II. The provisions of section 310 of the Surrogate’s Court Act are harmonized with those of section 591 of the Civil Practice Act in this case only if the Surrogate’s decree is the appealable paper.

      Henry L. Ughetta, II, for New York Trust Company, in opposition to motion.
    I. The notice of appeal was served more than sixty days after service upon the attorney for the appellants of the order of the Appellate Division with notice of entry (Civ. Prac. Act, § 592). II. Appellants attempt to appeal as of right (under Civ. Prac. Act, § 588, subd. 1) and thus the appealable paper is the order of the Appellate Division (§ 591, subd. 2). III. The order of the Appellate Division is a final determination (under Civ. Prac. Act, § 584). (Matter of Westberg, 279 N. Y. 316.) The entry of a Surrogate’s Court order on remittitur, with taxation of costs, was merely a matter of form. IV. The order of the Appellate Division did not remit the matter to the Surrogate’s Court for entry of a further decree (as was done in Matter of Ewald, 292 N. Y. 512; Matter of Carpenter, 296 N. Y. 743; and Matter of Lawrence, 297 N. Y. 596).

      George W. Martin for Home for Incurables, in opposition to motion.
    All that was necessary in the Surrogate’s Court, and all that was done there, was to enter an order making the order of the Appellate Division the order of the Surrogate’s Court and taxing costs — a purely ministerial act.
   Per Curiam.

In this proceeding to settle its accounts as trustee, the New York Trust Company filed a claim for legal services which it incurred in a successful defense of an action brought against it individually by income beneficiaries. The Surrogate refused to allow that claim.

The trust company thereupon appealed to the Appellate Division from so much of the decree of the Surrogate’s Court as sustained the objections to the payment of the claim of the trustee. The Appellate Division reversed on the facts and law by an order which reads in part as follows: ORDERED and ADJUDGED that the decree so far as appealed from be and the same hereby is reversed, on the facts and on the law, and that the objections filed by the respondents to the payment by said trustee of said sum of $7,868.70, be and the same hereby are overruled, except that said sum shall be made a charge against the income of the said trust and not against the principal thereof, with costs to the appellant and to the respondents, Foundation for the Investigation of Chronic Pulmonary Diseases, Inc., The Trustees of Columbia University in the City of New York, Memorial Hospital for the Treatment of Cancer and Allied Diseases, and Home for Incurables, payable out of the principal of the trust fund.”

The order was entered on July 7, 1950, and was served upon counsel for the appellants on July 10, 1950. On October 3, 1950, the Surrogate entered his decree upon the order of the Appellate Division.

The appellants (the income beneficiaries) served upon the respondents a notice of direct appeal from the order and decree of the Surrogate. This notice of appeal was served upon each of the respondents on October 30,1950. On October 31,1950, the corporate respondents and the Trustees of Columbia University returned the copies of the notice of appeal upon the ground that the notice of appeal was not served in time and that appeal to this court did not lie from the order and decree of the Surrogate’s Court.

Thereupon the present motion was made' to compel acceptance of service of the notice of appeal. The position of the respondents is that the appealable paper in this case was the order of the Appellate Division. In that view, the respondents are right for the order of the Appellate Division contemplated no further judicial action and so was a final order appealable to this court as of right (Civ. Prac. Act, § 591; Matter of Westberg, 279 N. Y. 316). If, however, the order of the Appellate Division had contained a direction remitting the case to the Surrogate’s Court for entry of a decree, such decree would have been the appealable paper (cf. Matter of Ewald, 292 N. Y. 512; Matter of Carpenter, 296 N. Y. 743; Matter of Lawrence, 297 N. Y. 596).

The motion to compel acceptance of notice of appeal should be denied, with $10 costs.

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

Motion denied.


text:
    James E. Cashman, Respondent, v. Teachers’ Retirement Board, Appellant.
    Argued April 12, 1950;
    decided May 18, 1950.

      John P. McGrath, Corporation Counsel (Michael A. Castaldi, Seymour B. Quel and Morris Weissberg of counsel), for appellant.

      Leonard M. Wallstein, Jr., and Leonard M. Wallstein for respondent.
   judgment affirmed, with costs; no opinion.

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


text:
    Bank of New York, Plaintiff, v. Public National Bank and Trust Company of New York et al., Defendants. Public National Bank and Trust Company of New York, Defendant and Third-Party Plaintiff-Appellant, v. Mergenthaler Linotype Company, Third-Party Defendant-Respondent; Royal Industrial Bank, Third-Party Defendant-Appellant, et al., Third-Party Defendants. Chase National Bank of the City of New York, Defendant and Third-Party Plaintiff-Appellant, v. Pennsylvania Exchange Bank et al., Third-Party Defendants-Appellants, and Mergenthaler Linotype Company, Third-Party Defendant-Respondent. Manufacturers Trust Company, Defendant and Third-Party Plaintiff-Appellant, v. Mergenthaler Linotype Company, Third-Party Defendant-Respondent, et al., Third-Party Defendants. Pennsylvania Exchange Bank, Third-Party Plaintiff, v. Emilio Strollo et al., Individually and as Copartners Doing Business under the Name of West 35th Street Trading Company, et al., Third-Party Defendants. Emilio Strollo et al., Copartners Doing Business under the Name of West 35th Street Trading Company, Plaintiffs, v. Pennsylvania Exchange Bank, Defendant.
    Argued April 11, 1950;
    decided May 18, 1950.

      Stewart Maurice, Leo T. Kissam, George B. Balamut, Charles R. McNamee, John Boland and Max M. Littman for appellants.

      William H. Hayes and Chauncey L. Grant for respondent.
   Judgments affirmed, with costs; no opinion.

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


text:
    In the Matter of Clayton H. Masten, an Alleged Delinquent Child. The People of the State of New York, Respondent; Clayton H. Masten, by His Guardian ad Litem, Appellant.
    Argued April 13, 1950;
    decided May 18, 1950.

      Emmett A. Glynn and Charles P. Caputo for appellant.

      Allen H. Pulsifer, District Attorney, for respondent.
   Order affirmed; no opinion.

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


text:
    New York Life Insurance Company, Appellant, v. Glens Falls Insurance Company, Respondent.
    Argued April 12, 1950;
    decided May 18, 1950.

      Charles M. Swezey and Dudley Davis for appellant.

      Samuel A. Berger and Abraham Kaplan for respondent.
   Order affirmed, with costs. Question certified answered in the affirmative. No opinion.

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


text:
    Shirley Dennis, an Infant, by Ernest C. Dennis, Her Guardian ad Litem, Appellant, v. Pasquale Cioppa et al., Respondents. Ernest C. Dennis, Appellant, v. Pasquale Cioppa et al., Respondents.
    Argued April 6, 1950;
    decided May 18, 1950.

      Edward B. Horning for appellants.

      Frank Gibbons for Pasquale Cioppa, respondent.

      John R. Weaver for Vincent Roadways Service, Inc., respondent.
   Judgment affirmed, without costs; no opinion.

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


text:
    Helen Eisenstein, Appellant, v. Abraham Stern, Doing Business as S. & A. Stern, Respondent.
    Submitted April 10, 1950;
    decided May 18, 1950.

      Nathan A. Markowitz and M. W. Markowitz for appellant.

      Donald L. Newborg and Charles H. Meyer for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    Janet Beach, Respondent, v. Rochester Transit Corporation, Appellant.
    Submitted April 11, 1950;
    decided May 18, 1950.

      George J. Nier for appellant.

      George J. Skivington and Samuel Chikovsky for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of the Claim of Dominick Poveromo, Respondent, against J. H. Taylor et al., Appellants. Workmen’s Compensation Board, Respondent.
    Argued April 14, 1950;
    decided May 18, 1950.

      Bernard Katzen, General Attorney (Victor Fiddler and George J. Hayes of counsel), for State Insurance Fund and another, appellants.

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

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


text:
    In the Matter of Maxwell M. Wallach, Appellant. Association of the Bar of the City of New York, Respondent.
    Argued April 6, 1950;
    decided May 18, 1950.

      Maxwell M. Wallach, appellant in person.

      Frank H. Gordon and James T. Gallagher for respondent.
   Appeal dismissed upon the ground that the order does not finally determine the proceeding within the meaning of the Constitution. No opinion.

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


text:
    The People of the State of New York ex rel. Patsy Guariglia, Appellant, against John F. Foster, as Warden of Auburn State Prison, Defendant. The People of the State of New York, Respondent.
    Submitted April 10, 1950;
    decided May 18, 1950.

      Harry G. Anderson for appellant.

      Nathaniel L. Goldstein, Attorney-General (William S. Elder, Jr., Wendell P. Brown and Herman N. Harcourt of counsel), for respondent.
   Order affirmed, without costs; no opinion.

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


text:
    Sam Birnbaum, Respondent, v. Jamestown Mutual Insurance Company, Appellant.
    Submitted April 12, 1950;
    decided May 18, 1950.

      Thomas A. Clarke and Milton C. Jacobs for appellant.

      Gilbert Goldstein, George A. Grabow and Charles E. Bernstein for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of the Claim of Isaac Ginsberg, Respondent, against Hollywood Luggage Corp. et al., Respondents, and Commercial Casualty Company, Appellant. Workmen’s Compensation Board, Respondent.
    Argued April 14, 1950;
    decided May 18, 1950.

      Charles P. Barre for appellant.

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

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


text:
    Rockdale Construction Corp. et al., Respondents, v. Incorporated Village of Cedarhurst et al., Appellants.
    Argued April 10, 1950;
    decided May 18, 1950.

      Maurice Brandt for appellants.

      Sanford A. Davison for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Clara Monkwall, as Administratrix of the Estate of Eilif Monkwall, Deceased, Respondent, v. Turbine Engineering Corp., Appellant, et al., Defendants.
    Argued April 12, 1950;
    decided May 18, 1950.

      Robert E. Curran and William R. Ahmuty, Jr., for appellant.

      Robert R. Bauman, Arthur L. Obre and Abraham M. Fisch for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    In the Matter of the Claim of Emma Altieri, Respondent, against Loretta F. Morris et al., Appellants. Workmen's Compensation Board, Respondent.
    Argued April 14, 1950;
    decided May 18, 1950.

      Charles P. Barre for appellants.

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

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


text:
    Clifford L. Robinson et al., Appellants, v. County of Broome et al., Respondents.
    Argued April 13, 1950;
    decided May 18, 1950.

      C. Addison Keeler for appellants.

      George R. Fearon and Robert J. Feinberg for Town of Union, respondent.

      Nathaniel L. Goldstein, Attorney-General (Wendell P. Brown and Ruth Kessler Toch of counsel), appearing, pursuant to section 68 of the Executive Law, in support of the constitutionality of section 75-a of the Social Welfare Law.
   Judgment affirmed, without costs; no opinion.

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


text:
    A. C. & H. M. Hall Realty Company, Appellant, v. V. A. C. Corporation et al., Respondents, et al., Undertenants.
    Argued April 12, 1950;
    decided May 18, 1950.

      Abraham Wilson, John Kadel and W. Philip Van Kirk for appellant.

      Harold J. Treanor and Kenneth E. McLaughlin for respondents.
   Order affirmed, with costs. This court does not read the Commercial Rent Law (L. 1945, ch. 3, as amd.) as imposing an obligation for rent upon a tenant who has surrendered the premises although a subtenant remains in possession of a portion thereof. No opinion.

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


text:
    In the Matter of the Claim of Paul W. Kaminsky, Respondent, against Socony-Vacuum Oil Co., Inc., Appellant. Workmen’s Compensation Board, Respondent.
    Argued April 14, 1950;
    decided May 18, 1950.

      Ralph S. Stoewell and Joseph D. Edwards for appellant.

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

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


text:
    In the Matter of Nicholas Barbarita et al., Respondents, against Board of Estimate, as Head of the New York City Employees’ Retirement System, et al., Appellants. In the Matter of Benny Simkowitz, Respondent, against William J. Powell, as Commissioner of Sanitation, et al., Appellants.
    Argued April 4, 1950;
    decided May 18, 1950.

      John P. McGrath, Corporation Counsel (James J. Thornton, Seymour B. Quel and William A. Marks of counsel), for appellants.

      Matthew Silverman for petitioners-respondents.

      Henry G. McDonough and Frank J. Durkin for respondent.
   Orders affirmed, with one bill of costs; no opinion.

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


text:
    Ben Levitan et al., Respondents, v. Rosalind Moses et al., Appellants, et al., Defendants.
    Argued April 13, 1950;
    decided May 18, 1950.

      Gerald Fitzgerald and Edward Conrad Clune for appellants.

      Edwin J. Conroy for respondents.
   Judgment affirmed, with costs; no opinion.

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


text:
    Peter C. Rasmussen, Respondent, v. City of New York, Appellant.
    Argued April 10, 1950;
    decided May 18, 1950.

      John P. McGrath, Corporation Counsel (Seymour B. Quel and Angela Parisi of counsel), for appellant.

      David A. Savage and Donald A. Savage for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond; Dye, Fuld and Froessel, JJ.


text:
    In the Matter of John Smith, Respondent, against Department of Health of the City of New York et al., Appellants.
    Argued April 11, 1950;
    decided May 18, 1950.

      John P. McGrath, Corporation Counsel (Fred Iscol and Seymour B. Quel of counsel), for appellants.

      Joseph Buch for respondent.
   Order affirmed, with costs, on the ground that the order of the Court of Special Sessions is “ a judgment, order or decree relating to the parentage or adoption of the person ” within the meaning of the Administrative Code of the City of New York (§ 567-2.0). We pass on no other question. No opinion.

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


text:
    The People of the State of New York, Respondent, v. Francesco Vieni, Appellant.
    Argued April 12, 1950;
    decided May 18, 1950.

      Henry K. Chapman for appellant.

      Frank S. Hogan, District Attorney (Edwin C. Hoyt, Jr., and Whitman Knapp of counsel), for respondent.
   Judgment affirmed. Upon this appeal, there was presented, and necessarily passed upon, a question under the Constitution of the United States, viz.: Appellant contended that the use against him upon the trial of evidence acquired by illegal search and seizure violated the Fourth Amendment of the Constitution of the United States. This court held that the conviction herein was not improper by virtue of the admission of such evidence, and that its use did not deprive appellant of his rights under said amendment nor of due process (People v. Defore, 242 N. Y. 13; People v. Richter’s Jewelers, Inc., 291 N. Y. 161; Wolf v. Colorado, 338 U. S. 25). No opinion.

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


text:
    In the Matter of Playdium, Inc., Respondent, against John F. O’Connell et al., Constituting the State Liquor Authority, Appellants.
    Argued April 6, 1950;
    decided May 18, 1950.

      John Di Leonardo and Alvin McKinley Sylvester for appellants.

      Robert C. Poskanzer for respondent.
   Order affirmed, with costs, and order absolute directed in favor of respondent on the stipulation. Appeal taken as of right dismissed. No opinion.

Concur: Loughran, Ch. J., Lewis, Conway and Froessel, JJ.; Desmond, Dye and Fuld, JJ., concur as to the appeal taken as of right, but otherwise dissent.


text:
    The People of the State of New York ex rel. Joseph Murphy, Appellant, against J. Vernel Jackson, as Warden of Clinton State Prison, Respondent.
    Argued April 13, 1950;
    decided May 18, 1950.

      Thomas A. Robinson and Joseph Murphy, in person, for Joseph Murphy, appellant.

      Nathaniel L. Goldstein, Attorney-General (Herman N. Harcourt, Wendell P. Brown and Raymond B. Madden of counsel); Frank S. Hogan, District Attorney (Charles W. Manning and Whitman Knapp of counsel), for respondent.
   Per Curiam.

In affirming appellant’s conviction in People v. Murphy (276 N. Y. 612), we found, upon the record before us, that there was sufficient evidence to support the conviction apart from the presumption provided in subdivision 1-a of section 1897 of the Penal Law, and that it was therefore unnecessary for us to pass upon the constitutionality of the statute. Accordingly, the order appealed from should be affirmed.

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

Order affirmed.


text:
    In the Matter of Sol A. Maksik et al., Appellants, against John F. O’Connell et al., Constituting the State Liquor Authority, Respondents.
    Argued April 10, 1950;
    decided May 18, 1950.

      Aaron Frank, Menahem Stim, Nathan L. Samuelson and Henry Hirsch for appellants.

      Charles W. Chattaway and Alvin McKinley Sylvester for respondents.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of Sidney N. Barnett, Appellant, against Harold Fields et al., Constituting the Board of Examiners of the Board of Education of the City of New York, Respondents.
    Argued April 12, 1950;
    decided May 18, 1950.

      Copal Mintz for appellant.

      John P. McGrath, Corporation Counsel (Sidney P. Nadel, Seymour B. Quel and Michael A. Castaldi of counsel), for respondents.

      A. Mark Levien for New York Teachers Guild, amicus curiæ, in support of appellant’s position.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of the Claim of Eunice Landrum, Widow of Charles M. Landrum, Deceased, on Behalf of Herself and Two Minor Children, Respondent, against Congress Motor Corp. et al., Appellants. Workmen’s Compensation Board, Respondent.
    Argued April 14, 1950;

      decided May 18, 1950.

      Ralph S. Stoewell and Joseph D. Edwards for appellants.

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

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


text:
    In the Matter of the Construction of the Will of Pelagia Wojtkowiak, Deceased. Wallace Wojtkowiak et al., Appellants; Conrad Wojtkowiak et al., Respondents.
    Submitted April 13, 1950;
    decided May 18, 1950.

      Edward B. Murphy and David J. Kulick for Wallace Wojtkowiak and others, appellants.

      George E. Phillies and Emil L. Cohen for Conrad Wojtkowiak and another, respondents.
   Order affirmed, with costs; no opinion.

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


text:
    Albert Goldstein et al., Respondents, v. Fidelity and Guaranty Insurance Corporation, Appellant.
    Submitted April 10, 1950;
    decided May 18, 1950.

      Simon Greenhill for motion.

      Charles Ballon, Mortimer B. Wolf and Jacob M. Usadi opposed.
   Motion dismissed, with $10 costs and necessary printing disbursements, upon the ground that the order does not finally determine the action within the meaning of the Constitution.


text:
    Brewster Aeronautical Corporation et al., Respondents, v. Abe Fener et al., Defendants, and Andrew H. Fener, Appellant. Brewster Aeronautical Corporation et al., Respondents, v. Abe Fener et al., Defendants, and Clara Fener, Appellant. Brewster Aeronautical Corporation et al., Respondents, v. Abe Fener, Appellant, et al., Defendants.
    Submitted May 15, 1950;
    decided May 18, 1950.

      Andrew H. Fener for motion.

      Robert F. Welch opposed.
   Motion dismissed with $10 costs and necessary printing disbursements, upon the ground that the order does not finally determine the action within the meaning of the Constitution.


text:
    Macedo Soares, Inc., Respondent, v. Jose Guertzenstein, Appellant.
    Submitted May 15, 1950;
    decided May 18, 1950.

      Nathan H. Herman for motion.

      Louis Okin opposed.
   Motion dismissed, with $10 costs and necessary printing disbursements, upon the ground that the order does not finally determine the action within the meaning of the Constitution.


text:
    The People of the State of New York, Respondent, v. James Brakefield, Appellant.
    Submitted May 15, 1950;
    decided May 18, 1950.

      James Brakefield, in person, for motion.

      Miles F. McDonald, District Attorney (David Diamond of counsel), opposed.
   Motion for leave to appeal, etc., dismissed upon the ground that the case has not been passed upon by the Appellate Division.


text:
    The People of the State of New York, Respondent, v. Anton Molese, Appellant.
    Submitted May 15, 1950;
    decided May 18, 1950.

      Miles F. McDonald, District Attorney (David Diamond of counsel), for motion.

      Anton Molese, in person, opposed.
   Motion granted and appeal dismissed on the ground that no appeal lies to this court from the order of the Appellate Division.


text:
    Alex Auerbach et al., Appellants, v. Commercial Capital Corporation, Respondent.
    Submitted May 15, 1950;
    decided May 18, 1950.

      David Haar for motion.

      Samuel Shapiro opposed.
   Motion to dismiss appeal taken on behalf of the plaintiff Barrett granted and appeal dismissed on the ground that plaintiff was deceased at the time the case was heard in the Appellate Division (Matter of O’Esau v. Bliss Co., 224 N. Y. 701). Motion to dismiss appeal taken on behalf of the remaining plaintiffs granted and appeal dismissed, with costs and $10 costs of motion, unless appellants serve and file an undertaking on appeal and pay $10 costs within ten days, in which events motion denied.


text:
    Nathan B. Fogelson et al., on Behalf of Themselves and Others Similarly Situated, Respondents, v. Rackfay Construction Co., Inc., et al., Appellants.
    Submitted May 15, 1950;
    decided May 18, 1950.
   Motion for reargument denied, with $10 costs and necessary printing disbursements. [See 300 N. Y. 334.]


text:
    Fannie Stern, Appellant, v. Lillian Stern, as Administratrix of the Estate of Abraham Stern, Respondent.
    Submitted May 15, 1950;
    decided May 18, 1950.

      Gerald H. Chambers for motion.

      Harris B. Steinberg, Woodrow J. Sandler and Meyer Halpern opposed.
   Motion dismissed, with $10 costs and necessary printing disbursements, upon the ground that the order does not finally determine the action within the meaning of the Constitution.


text:
    Maria A. De Groot, Appellant, v. Nicholas R. Locascio, Respondent, et al., Defendants.
    Submitted May 15, 1950;
    decided May 18, 1950.

      Julius Garrell and Herman A. Gray for motion.

      John J. De Luca opposed.
   Motion dismissed, with $10 costs and necessary printing disbursements, without prejudice to a renewal thereof if and when a judgment has been entered on the order of the Appellate Division.


text:
    The People of the State of New York ex rel. Zoel N. Lynch, Respondent, against Kathleen King et al., Appellants.
    Submitted May 15, 1950;
    decided May 18, 1950.

      Louis Okin for motion.

      R. Lawrence Siegel opposed.
   Motion to dismiss appeal, or, in the alternative, for an order directing appellants to serve and file a complete printed record, containing the minutes and the exhibits which have been omitted from the record heretofore served and filed, denied with leave to renew upon the argument.


text:
    Irene F. Hopper, Plaintiff, and Herman T. Hopper, Appellant, v. Comfort Coal-Lumber Company, Inc., Respondent.
    Submitted May 15, 1950;
    decided May 18, 1950.

      Richards W. Hannah for motion.

      David H. Moses opposed.
   Motion to dismiss appeal, or, in the alternative, for a stay of argument, denied, without costs.


text:
    In the Matter of Buffalo Creek Railroad Company, Respondent, against City of Buffalo, Appellant.
    Submitted May 15, 1950;
    decided May 18, 1950.

      William G. Conable for motion.

      Fred C. Maloney, Corporation Counsel (Abraham I. Okun of counsel), opposed.
   Motion denied, with leave to renew upon the argument.


text:
    Harold Young, Appellant, v. Edelbrew Brewery, Inc., Respondent.
    Submitted May 15, 1950;
    decided May 18, 1950.

      Bertrand Ettinger for motion.

      Zarah Williamson for plaintiff.
   Motion withdrawn.


text:
    In the Matter of the Accounting of Central Hanover Bank and Trust Company, as Executor of and Trustee under the Will of Samuel C. Hildreth, Deceased, Appellant. Mary E. Hildreth, Respondent.
    Submitted May 22, 1950;
    decided May 24, 1950.

      Frederick L. Kane for motion.

      Francis S. Bensel opposed.
   Motion to dismiss appeal, insofar as it relates to matters that were not determined by the Appellate Division, denied with leave to renew upon the argument.


author: Froessel, J.

text:
    Mira S. Szwarce, Appellant and Respondent, v. Pastor R. Buenaventura, Respondent and Appellant.
    Argued February 20, 1950;
    decided May 25, 1950.

      Louis Jay Brecher and Maurice Freiman for plaintiff, appellant and respondent.

      Israel Lerner, Francis J. Greco and Herman Strizver for defendant, respondent and appellant.
   Order affirmed, without costs.

Concur: Loughran, Ch. J., Lewis, Desmond, Dye and Fuld, JJ.; Froessel, J., dissents in part in opinion in which Conway, J., concurs.

Froessel, J.

(dissenting). In this paternity proceeding, the Court of Special Sessions of the City of New York made an order of filiation, and also awarded counsel fees to plaintiff’s attorney. We are all agreed that the order of the Appellate Division should be affirmed insofar as it modified the order of filiation by reducing the monthly allowance for support of the infant; we are not in agreement as to its reversal upon the law of the order awarding plaintiff counsel fees.

The pertinent portions of the statutes involved provide:

Section 120 of the Domestic Relations Law: The father is liable to pay the expenses of the mother’s confinement and recovery, and is also liable to pay such expenses, including counsel fees, in connection with her pregnancy as the court in its discretion may deem proper.” (Subd. 1.)

Subdivision 4 of section 61 of the New York City Criminal Courts Act: “ 4. The word ' support ’ as used in this article may include * * * (c) the liability on the part of the father to pay the reasonable expenses of the mother’s confinement and recovery and such reasonable expenses in connection with her pregnancy as the court in its discretion may deem proper.”

It will be observed that these statutes are substantially identical, except that section 120 contains the phrase “ including counsel fees ” after “ expenses ”, whereas subdivision 4 of section 61 contains the word “ reasonable ” before “ expenses ”.

The words “including counsel fees ” were inserted in the Domestic Relations Law by the Legislature in 1947 (L. 1947, ch. 154). I do not interpret its failure to add the same language after the words “ such reasonable expenses ” in subdivision 4 of section 61 as manifesting any intention that counsel fees were to be withheld in cases prosecuted in New York City under the Criminal Courts Act.

The Domestic Relations Law is not, by its provisions or otherwise, limited to any particular portion of the State. It contains no language exempting New York City from its operation, as for example, sections 4, 38, 188 and 394 of the Public Health Law. It specifically vests jurisdiction over paternity proceedings in “ the courts heretofore exercising jurisdiction in bastardy cases of the city of New York ” (§ 122, subd. 3; §135).

Article V of the New York City Criminal Courts Act (added by L. 1930, ch. 434), which is limited to paternity proceedings in New York City, and article VIII of the Domestic Relations Law (added by L. 1925, ch. 255), which is State-wide in operation, are companion statutes. Sections 61 to 78 of the former act are closely patterned after the corresponding sections 119 to 139 of the latter statute. Indeed article V is in reality nothing more than a procedural statute, with its substantive provisions virtually copied from article VIII. If article Y were repealed, article VIII would afford substantially the same relief.

Moreover, it will not be presumed that the Legislature intended an invalid enactment, and such result would follow if section 120 were construed as inapplicable to the City of New York, as there is no rational basis for differentiating between parents in and out of the city. It is no answer to say that an unwed mother in New York City may avail herself of the services of the department of welfare in bringing a filiation proceeding, for section 64 of the New York City Criminal Courts Act permits this only 11 if the mother or child is or is likely to become a public charge ”.

In Feyler v. Mortimer (299 N. Y. 309) we had before us seemingly inconsistent provisions of the Domestic Relations Law and the New York City Criminal Courts Act. The question there presented was whether an action could be maintained in the Court of Special Sessions of the City of New York by a mother living in Germany, where the putative father resided in New York City. We held that the apparent right to maintain the action under subdivision 1 of section 64 of the New York City Criminal Courts Act must yield to the limitation of section 135 of the Domestic Relations Law, which barred the action. We were constrained to view the two statutes together, because to interpret them differently (p. 315) “ would erect an anomalous, an illogical and, perhaps, an unconstitutional distinction * * *. We avoid such a course when we may.” For the same reason, the test of the Feyler case (supra) requires a harmonious construction of the statutes here (Commissioner of Public Welfare v. Ladutko, 256 App. Div. 775, affd. on other grounds 281 N. Y. 655; Commissioner of Public Welfare v. Torres, 263 App. Div. 19; Matter of Merchants Refrig. Co. v. Taylor, 275 N. Y. 113, 121; Colgate v. Harvey, 296 U. S. 404, 422-423).

The order of the Appellate Division should be affirmed insofar as it modified the order of filiation, and reversed insofar as it reversed on the law the order awarding counsel fees.


text:
    Henry I. Christal, Appellant, v. Edward Petry, Individually and as a Stockholder, Director and President of Edward Petry & Company, Inc., Respondent, et al., Defendants.
    Argued February 28, 1950;
    decided May 25, 1950.

      Barney B. Fensterstock, Harry Zalkin and Israel Akselrod for appellant.

      Robert H. O’Brien and Hamilton C. Rickaby for respondent.
   Judgment affirmed, with costs; no opinion.

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


text:
    The People of the State of New York ex rel. Sylvester W. Del Bello, Appellant, against Joseph J. Lennox, as Commissioner of Assessment and Taxation of the Tax District Comprised of the City of Yonkers, et al., Respondents.
    Argued May 15, 1950;
    decided May 26, 1950.

      Sylvester W. Del Bello, appellant in person.

      John H. Galloway, Jr., Corporation Counsel (John Preston Phillips of counsel), for respondents.
   Order affirmed, with costs; no opinion.

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


text:
    In the Matter of Alys H. Lyons, Respondent, against John F. O’Connell et al., Constituting the State Liquor Authority, Appellants.
    Submitted May 15, 1950;
    decided May 26, 1950.

      Harry F. Karst, Alvin McKinley Sylvester and Jack Reinstein for appellants.

      Nathan J. Stein and Samuel Lawrence Brennglass for respondent.
   Order affirmed, with costs; no opinion.

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


text:
    New York Central Railroad Company, Plaintiff, v. New York and Harlem Railroad Company, Appellant; Westchester Fire Insurance Company et al., Minority Common Stockholders of New York and Harlem Railroad Company, Respondents; Dorothy Hennesey, on Her Own Behalf and on Behalf of Other Stockholders of New York and Harlem Railroad Company Similarly Situated, Intervener, Respondent, et al., Defendants.
    Argued May 16, 1950;
    decided May 26, 1950.

      Edward C. McLean and D. Bret Carlson for appellant.

      Walter E. Warner, Jr., Benjamin P. De Witt, Richard Steel, Alfred H. Townley, Carleton S. Connor, Julius Wilk and Nathan Shapiro for Westchester Fire Insurance Company and others, respondents.
   Order affirmed, with one bill of costs to respondents. Question certified answered in the negative. No opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Dye, and Froessel, JJ. Dissenting: Fuld, J., who votes to reverse the order and dismiss the application.


text:
    Duenewald Printing Corporation, Appellant, v. G. P. Putnam’s Sons, Respondent.
    Argued May 16, 1950;
    decided May 26, 1950.

      Myron J. Greene, Maurice J. Schulkind and Irving Michael Atkin for appellant.

      Vincent J. Malone and Frederick M. Jennings for respondent.
   Judgment of the Appellate Division reversed and that of the Trial Term affirmed, with costs in this court and in the Appellate Division, upon the ground that the decision of the Trial Term is in accordance with the weight of the evidence. No opinion.

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


text:
    In the Matter of the Claim of Mabel G. Gordon, Claimant, against New York Life Insurance Company et al., Respondents. Workmen’s Compensation Board, Appellant.
    Submitted May 22, 1950;
    decided May 26, 1950.
   Motion to amend remittitur granted. Return of remittitur requested and when returned it will be amended so as to provide that the order of the Appellate Division be reversed and the award of the Workmen’s Compensation Board confirmed, with a single bill of costs and disbursements in this court to the claimant and the Workmen’s Compensation Board and costs to said board in the Appellate Division. (See Matter of Santo v. Symington Mach. Co., 263 N. Y. 563; Matter of Brennan v. Mack Int. Motor Truck Corp., 263 N. Y. 563, 663.) [See 300 N. Y. 652.)


text:
    In the Matter of Fifth Madison Corporation, Landlord, Appellant and Respondent. J. B. Doblin, Inc., et al., Tenants, Respondents and Appellants.
    Submitted May 15, 1950;
    decided May 26, 1950.

      Peter Forrest for motion to dismiss cross appeal and in opposition to motion for an order permitting cross appeal to be heard on one typewritten copy of the notice of appeal.

      John E. Donnelly for motion for an order permitting the cross appeal to be heard on one typewritten copy of the notice of appeal and in opposition to motion to dismiss cross appeal.
   Motion for an order permitting the cross appeal of respondents to be heard on one typewritten copy of the notice of appeal to be included in the return to be filed by the petitioner appellant herein, granted. Cross motion to dismiss the cross appeal of the respondents, denied with leave to renew upon the argument.


text:
    Lewis A. Dunckel, Appellant, v. John A. Parsons et al., Respondents.
    Submitted May 22, 1950;
    decided May 26, 1950.

      George M. Skinner for motion.
    No one opposed.
   Motion granted and appeal dismissed, with costs and $10 costs of motion, upon the ground that no appeal lies as of right.


text:
    In the Matter of Arthur J. Cilento, on Behalf of Salvatore Spitale, Relator, Appellant. The People of the State of New York, Respondent.
    Submitted May 26, 1950;
    decided May 26, 1950.

      Nathaniel L. Goldstein, Attorney-General (Raymond B. Madden, Wendell P. Brown and Herman N. Harcourt of counsel), for motion.

      Arthur J. Cilento, in person, opposed.
   Motion denied without prejudice to an application by the Attorney-General in the Appellate Division for the relief here sought.


text:
    In the Matter of Wolf Zybert, Respondent. Adolphe Dab, Appellant. In the Matter of the Arbitration between Adolphe Dab, Appellant, and Wolf Zybert, Respondent.
    Submitted May 22, 1950;
    decided May 31, 1950.

      Sidney S. Allen for motion to dismiss appeal.

      Abraham Kaplan opposed.
   Motion for a stay granted to the extent of staying so much of the Appellate Division order as denies appellant’s motion for an order restraining arbitration. All matters should be kept in statu quo pending determination of the appeal. Cross motion to dismiss appeal denied.


text:
    The People of the State of New York ex rel. Provident Loan Society of New York, Appellant, against Harry B. Chambers et al., Constituting the Tax Commission of the City of New York, Respondents.
    Argued May 17, 1950;
    decided June 1, 1950.

      Pliny W. Williamson, John E. Walker and Thomas J. Whalen for appellant.

      John P. McGrath, Corporation Counsel (Morris Handel of counsel), for respondents.
   Order affirmed, with costs; no opinion.

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