author: Conway, J. Thacher, J.

text:
    In the Matter of William Bell, Respondent, against The Board of Regents of the University of the State of New York, Appellant.
    Argued October 1, 1945;
    decided January 17, 1945.

      Nathaniel L. Goldstein, Attorney-General (Henry 8. Manley and Orrin G. Judd of counsel), for appellant.
    “ Ambulance chasing ”'is unprofessional conduct in the dental profession, and was known to be such in the years 1939 to 1942. (Matter of Cherry v. Board of Regents, 289 N. Y. 148.)

      Lloyd Paul Stryker, Harold Shapero and Saul Sperling for respondent.
    I. In view of the “ omnibus character and indefinite generality ” of clause (h) of subdivision 2 of section 1311 of the Education Law, the Board of Regents is without power to impose a penalty for an act which it has not previously by a canon or rule classed as 11 unprofessional conduct ”. (Matter of Cherry v. Board of Regents, 289 N. Y. 148.) II. The claimed breach was of a private rather than of an official regulation. The appellant cannot delegate to a private society the duty entrusted to it by the Legislature to ascertain and then by rule to prescribe a standard of conduct. (Matter of Cherry v. Board of Regents, 289 N. Y. 148.) III. The assumption by appellant that the standard of the private society reflects the “ consensus of expert opinion ” or the “ general understanding of the profession ” is not justified by the record.
   Conway, J.

The respondent graduated from a college of dentistry in this State in 1919, and in that year was licensed to practice dentistry. At the time of the institution of this proceeding, he maintained an office for the practice of dentistry in New York City. The determination of the appellant Board of'Regents sustained the finding of the State Board of Dental Examiners that the respondent was guilty of “ unprofessional conduct ” within the meaning of subdivision 2, clause (h), of section 1311 of the Education Law of the State of New York, and suspended the license of respondent for a period of one year. At the hearing before the Board of Dental Examiners, there was no question of fact as to which there was any issue. As respondent recites in his petition for certiorari, he did not file an answer but demurred to the charges and moved to dismiss them upon the ground that they failed to state facts sufficient to constitute unprofessional conduct as .set forth in Education Law, section 1311, subdivision 2, clause (h), and upon the ground that the evidence offered in support of them did not establish a violation of that section and subdivision. The respondent offered no testimony and did not testify. Among the findings of the State Board of Dental Examiners were the following: “ Fourth: The uncontradicted testimony, adduced before the sub-committee, establishes, and we find, that respondent did some time in the month of April, 1939, employ one Carl Anderson for the primary purpose of contacting prospective patients- and arranging to bring these patients to the respondent for dental treatment. This employment continued until the latter part of October, 1942. Under the arrangement made by respondent with the said Anderson, Anderson was to receive and did receive commissions on fees collected by the respondent from patients brought to him by Anderson. The commissions varied in amount from 20% to 50% of the fees collected from these patients for some period of time extending, over one year, when a flat commission of 35% was thereupon paid by the respondent to said Anderson. Anderson was paid by respondent during the period of time aforementioned sums totaling, about $20,000, and in addition thereto Anderson received an additional compensation of $10 per week to cover expenses incurred by Anderson in supplying and maintaining an automobile which was used in transporting patients to and from respondent’s office.

“ Fifth: It was stipulated that the said Carl Anderson was not during the period of his employment by respondent, or at any other time, duly registered to practice dentistry in the State of New York.”

The State Board of Dental Examiners concluded that because of respondent’s acts “ he was guilty of unprofessional conduct within the meaning of Subdivision 2(h) of Section 1311 of the Education Law of the State of New York.” The applicable portion of section 1311 of the Education Law, which is entitled Revocation of Licenses, read, during the period covered by Findings Fourth and Fifth above, as follows (L. 1935, ch. 406): “ 2. The license and registration of a practitioner of dentistry may be revoked, suspended or annulled, * * ■* upon decision and due hearing in any of the following cases: (a) that the dentist has been guilty of immoral conduct; (b) * * (c) * * *; (d) * * *; (e) * * *; (f) * * *; (g) * * *; (h) that the dentist has been otherwise or in any other way guilty of unprofessional conduct.”

Prior to that amendment in 1935, section 1311, subdivision 2, clause (a) read “ that the dentist has been guilty of unprofessional or immoral conduct; ” (L. 1933, ch. 609). Unprofessional and immoral conduct had been linked together prior to 1933 in section 1311 in Laws of 1927, chapter 85, subdivision 2, the first sentence of that subdivision beginning: “ If any practitioner of dentistry be charged under oath before the board with unprofessional or immoral conduct, or with gross ignorance, or inefficiency in his profession, * * The Board of Regents has never adopted any “ regulation ” defining either immoral or unprofessional conduct. Nevertheless, it is urged upon us that unless the Board of Regents prescribes by regulation the acts which shall constitute unprofessional conduct, no dentist may be disciplined under section 1311, subdivision 2, clause (h). That never has been the law of this State (Matter of Mandel v. Board of Regents, 1928, Lehman, J., 250 N. Y. 173; Matter of Cherry v. Board of Regents, 1942, Lehman, Ch. J., 289 N. Y. 148) and, apart from the authorities cited, the Legislature has indicated that quite clearly this year by two amendments to Education Law. One amended Education Law, section 1368, in the article dealing with pharmacy, so as to provide for the revocation or suspension of a license or certificate of one admitted to practice pharmacology who has been guilty of unprofessional conduct as defined by the regents * * (L. 1945, ch. 755, eff. July 1, 1945.) The second amended Education Law, section 1311, subdivision 2, clause (h) (the one we are discussing here) by adding the following sentence: The board of regents may promulgate rules to define and clarify, iohen necessary, unprofessional conduct.” (L. 1945, ch. 805, eff. April 16, 1945.) (Emphasis supplied.) In other words, when the Legislature desired to have the Board of Regents make rules defining the acts constituting unprofessional conduct, as in section 1368, it so provided. When the Legislature desired merely to empower the Board of Regents to promulgate rules defining and clarifying unprofessional conduct, when the board considered it necessary, it provided that.

The reason for respondent’s argument is no doubt a failure to distinguish between the Mandel case on the one hand and the cases of Matter of Dr. Bloom Dentist, Inc., v. Cruise (259 N. Y. 358), Brown v. University of the State of New York (266 N. Y. 598) and the Cherry case on the other. We tried to make the distinction clear in the Cherry case. In the instant case, we have a straight charge of unprofessional conduct, without any “ regulation ” or “ rule ” adopted by the Board of Regents affecting Education Law, section 1311, subdivision 2, clause (h), under which the charge was brought. In the Bloom case, the Brown case and the Cherry case, we were dealing with charges brought by reason of a regulation adopted by the Board of Regents, pursuant to legislative permission, which, in the Brown and Cherry cases, affected the subdivision of section 1311 relating to advertising. In the Bloom case a similar regulation forbade:

“ 1. Any advertising statements of a character tending to deceive or mislead the public. * * * 4. Advertising by means of large display, glaring, illuminated or flickering light signs.” (p. 363).

In the Brown case, the plaintiffs were duly licensed and registered dentists who brought action permanently to enjoin the Board of Regents from enforcing its rule numbered “ 8 ”, which declared that “ the following forms of advertising are considered unprofessional and objectionable. * * * 8. The employment of letters, handbills, posters, circulars, cards, stereopticon slides, motion pictures, radio, newspapers or other advertising devices for the purpose of soliciting patronage, except that a dentist may use personal professional cards of a modest type announcing his name, title, address, telephone number and office hours.”

The rule was to go into effect upon August 1, 1933, but was postponed until October 1st. Section 1311, subdivision 2, clause (g) was added by chapter 609 of the Laws of 1933, effective September 1, 1933. Prior to that time, there had been no lettered divisions of section 1311, subdivision 2, and no provision in subdivision 2 relating to dental advertising. By the addition of (g) to subdivision 2 in 1933, revocation, suspension or annulment of the license of a practitioner of dentistry might be had if it appeared “ (g) that the dentist is [were] guilty of untrue, fraudulent, misleading or deceptive advertising.” We held that the rule or regulation outran the. statute. We pointed that out in the Cherry case (p. 157) where, in speaking of the Brown case, we said: “We held that the regulation of the Board of Regents was invalid only because the Legislature, having itself fixed a standard for dental advertising and having provided that failure to abide by such standard was ground for revocation of a license, had by necessary implication sanctioned advertising which did not transgress the express ban of the statute, and had not delegated to the Board of Regents power to provide other standards of permissible advertising or to create additional grounds for revocation of license.”

In the Cherry case, again we had presented a question involving a regulation adopted by the Board of Regents with reference to advertising. It was a charge under section 1311, subdivision 2, clause (g), although there was imported - into it the words “ unprofessional conduct ” from subdivision 2, clause (h). The charge was that Cherry between certain dates “ did make use of and employ a certain dental credit agency as advertising solicitors and free publicity press agents for the purpose of obtaining patients for his dental practice, * * # ” (p. 151) and did obtain certain named patients through this means. The difficulty was that the Legislature had not written into the statute in subdivision 2, clause (g), any provision with reference to advertising solicitors or publicity press agents. Again, we said that the regulation was broader than the statute and so exceeded the legislatively delegated power of the regents. Our reasoning was clear to the Legislature for it added the words: “ or by advertising through the mediums of advertising solicitors or publicity press agents ” by Laws of 1945, chapter 805. We carefully pointed out in the Cherry case (p. 160) that the only charge against the petitioner is a violation of the ban against employment and use of advertising solicitors and free publicity agents, and that is the only act or conduct of which the petitioner has been found guilty; yet, as we have said, violation of that regulation is not by itself a ground for revocation of a license to practice dentistry.” We also indicated (p. 160), and this makes the distinction clear, that co-operation by Cherry in the plan of the so-called “ dental credit service” might be regarded as unprofessional conduct ” even without a regulation, but that that was not the charge which had been tried by the Dental Board. That is, however, the charge now presented to us. It is a charge of unprofessional conduct in that the respondent took a layman into the conduct of his professional work on a percentage basis.

It has never been necessary for the Legislature or the Board of Regents to define with particularity acts which would constitute unprofessional conduct, whether in the fields of dentistry or pharmacy. In the Mandel case (supra), in which the opinion was written by the same distinguished judge who wrote in the Cherry case, the then applicable Public Health Law, section 240, later Education Law, section 1362, provided that “ Any license or certificate obtained by misrepresentation or fraud or that is held by anyone unfit or incompetent from negligence, habits or other cause may be revoked after reasonable notice and an opportunity to be heard.” We upheld the action of the State board, saying (p. 175):

“ The Legislature has vested in an administrative board power to determine the fitness and competency of those who desire to practice pharmacy in this State, both before and after a license has been granted. The Board has revoked the license of the petitioner as * junior pharmacist, not because that license was obtained by fraud, but because it has found that the petitioner was guilty of fraud in endeavoring to procure a pharmacist license, and consequently was and is unfit to practice the profession of pharmacy under any form of license.’

“ The Legislature has not attempted to define the causes which may produce unfitness or incompetency sufficient to justify revocation of a license, nor the acts which shall be regarded as sufficient evidence of such unfitness or incompetency. The statute is enacted for the protection of the public against the dangers that might arise from the practice of pharmacy by the unfit and incompetent. It is the lack of fitness or competency in a practitioner which creates the danger, regardless of how such lack may have arisen or how it has been demonstrated. Negligence or bad habits may usually be at its root; ‘ other cause ’ may give rise to it. The Legislature has in terms declared that the Board shall look to the result, not the cause,, as ground for revocation of a license. Narrower construction? of the statute would unreasonably limit its language and in' part defeat its purpose.

“ It is said that under that construction the Legislature has attempted to delegate to an administrative board the unre-. stricted power to define offenses to which the penalty of the revocation of a license shall attach, and that such power is a legislative function which may not be delegated. (Czarra v. Board of Medical Supervisors, 25 App. Cas. [D. C.], 443; Hewitt v. Board of Medical Examiners, 148 Cal. 590.) Unquestionably the definition of offenses and the prescription of punishment for such offenses is a legislative power. (U. S. v. Eaton, 144 U. S. 677.) The power vested in the administrative board and exercised by it in this case has a different scope. •

“ Denial or revocation of a license because of guilt of an offense which tends to show moral or intellectual unfitness does not constitute punishment for the offense. (Hawker v. New York, 170 U. S. 189.) It is only a measure of protection of the public.

“ Unquestionably the practice of pharmacy is subject to regulation by the State; unquestionably for centuries legislative bodies have been accustomed to empower administrative boards or officers to select the persons who shall be permitted to practice a vocation which is subject to regulation by the State. The selection may not be arbitrary. Grant or revocation of a license must rest upon reasonable grounds, but exercise of discretion in connection with an act performed customarily by administrative officers does not change an administrative act into a legislative act. A statute which empowers an administrative officer in the exercise of a reasonable discretion to withhold a license from such persons as he may find unsuitable and in the exercise of a similar discretion to revoke a license already granted to a person who may be unfit, does not constitute delegation of a legislative power. (People ex rel. Lieberman v. Van De Carr, supra.)

To the same effect, in Matter of Cherry, we said (p. 158): “ What constitutes unprofessional conduct by a dentist must be determined by those standards which are commonly accepted by those practicing the same profession in the same territory. The law is a very ancient profession and certain forms of conduct have been banned as unprofessional for centuries in both England and America. Ancient traditions have created rigid bans and by common consent those who violate those bans should be excluded from the goodly company of the members of the bar. At least in part these bans have been formulated in Canons of Ethics adopted and enforced by associations of members of the bar. In the profession of the law no person can plead ignorance as palliation for professional misconduct. In vocations, like dentistry, more recently accepted as professions, professional standards are perhaps less uniform, less well understood, and less rigidly defined. Nonetheless, the standards of conduct generally accepted by practitioners in the State of New York are not so indefinite that they cannot be determined by qualified persons. They are part of the ethics of the profession and ‘ what is generally called the ethics ” of the profession is but the consensus of expert opinion as to the necessity of such standards.’ (Sender v. Oregon State Board of Dental Examiners, supra, p. 612.) Every member of the profession should be regarded as an expert for such purpose. There is a moral dereliction in failure by any member of a profession to apply in professional practice the standards which, by consensus of opinion in the profession, are necessary.”

Unless the respondent’s acts proved here constitute unprofessional conduct within the meaning of section 1311, subdivision 2, clause (h), we must construe the language of the opinion in the Cherry case as inapplicable to any given or [imagined course of conduct by a dentist, and that we are not prepared to do. We must assume, in view of Education Law, article 3, sections 46, 51, and article 49, entitled Dental Societies and the Practice of Dentistry, and respondent’s pursuit of educational qualifications and licensing requirements thereunder that he knew he had entered upon a profession. It seems to us that there is one course of conduct which in each and every profession is known as a matter of common knowledge to be improper and unprofessional. That is conduct by which, after a professional man has been licensed by the State, he enters into a partnership in his professional work with a layman, by the terms of which he divides with the latter, on a percentage basis, payments made by client or patient for professional services rendered. That is what the respondent did here.

The order should be reversed, with costs, and the determination of the Board of Regents confirmed.

Thacher, J.

(dissenting). The opinion of the court characterizes as unprofessional conduct, known to be improper and unprofessional as a matter of common knowledge in each and every profession, “ conduct by which, after a professional man has been licensed by the State, he enters into a partnership in his professional work with a layman, by the terms of which he divides with the latter, on a percentage basis, payments made by client or patient for professional services rendered.” Thus this court is writing for all the professions in this State a rule of ethics. With great deference, it must be said that the rule, if limited to the facts in this case, has not received the universal acceptance claimed for it. Surely it cannot be said that it is unprofessional to employ one who is not a member of the profession in nonprofessional work and pay him a percentage of the gains from professional service. Indeed an office manager in a large law office may well be paid a percentage of the firm’s earnings for his nonprofessional but highly valuable services in management of the office and such an arrangement is neither immoral nor unethical. Many other analogies must exist in the management of hospitals and will frequently recur in the important growth and development of group medicine.

In this case the payment .was made to one who was not a dentist for performing services of a strictly nonprofessional character, namely, in bringing from the steamship piers to the respondent’s office seamen requiring dental work. These men were ignorant of our language and unable to find their way from place to place within the city and the arrangement was certainly not malum in se and, for all that appears, may well have been decidedly in the public interest.

If one is to be deprived of his professional livelihood he is entitled to be warned in advance that conduct which is neither reprehensible nor prohibited by law may have such consequences. We cannot accept the view that the Legislature intended to authorize suspension or removal from the professions for every breach, whether or not reprehensible, of rules of ethics promulgated without legislative sanction. The Board of Regents was authorized, both before and after the amendment of subdivision 2, clause (h) of section 1311 of the Education Law, to promulgate rules to define and clarify, when necessary, unprofessional conduct (Matter of Dr. Bloom Dentist, Inc., v. Cruise, 259 N. Y. 358, 363-364; Matter of Cherry v. Board, of Regents, 289 N. Y. 148, 155; L. 1945, ch. 805). Such definition and clarification are essential to basic concepts of fair play if a man is to be tried and suspended or removed from his profession for a breach of professional ethics by conduct in no sense reprehensible or opposed to the public interest."

In Matter of Cherry v. Board of Regents (289 N. Y. 148, 154), the Appellate Division having sustained a determination of the Board of Regents which suspended Dr. Cherry from practicing his profession for a period of six months, we reversed and held that the employment of a dental credit agency as advertising solicitors and free publicity press agents for the purpose of obtaining patients, and obtaining persons as patients through such practices, was not a ground for suspension of license. The effect of the legislative prohibition of specified means of advertising on the validity of the rule prohibiting the additional means charged against Dr. Cherry was considered, but we held that, although the statute by necessary implication “ sanctions the use of other means of publicity ”, by no possible implication did it sanction “ the use of the permitted means for a purpose or in a manner which would constitute unprofessional conduct.” (p. 158). Consequently, it was necessary to consider whether suspension for unprofessional conduct was permissible in that case, and we concluded that it was not. The following language from the opinion (at pp. 160-161) shows the basis upon which that decision was predicated:

Advertising solicitors and free publicity press agents are ordinarily employed and used for a purpose and in manner which would be regarded as unprofessional and improper, even if not specifically banned by regulation. As we have said, the statute cannot be construed as an implied sanction of such employment or use. Nonetheless, there may be occasions when advertising solicitors or free publicity press agents may be employed or used for proper purposes and in proper manner; and the Board of Regents could'not by general regulation ban proper use and improper use indiscriminately.

“ * * * The only charge against the petitioner is a violation of the ban against employment and use of advertising solicitors and free publicity agents, and that is the only act or conduct of which petitioner has been found guilty; yet, as we have said, violation of that regulation is not by itself a ground for revocation of a license to practice dentistry. Cooperation by the petitioner in the plan of the so-called ‘ dental credit service ’ might well be subject to censure as ‘ vulgar commercialism ’ and we assume that it could be banned by regulation of the Board of Regents, and might be regarded as unprofessional conduct even without such a regulation. That'is not, however, the charge which has been tried by the Dental Board. Indeed, we cannot overlook the fact that in its recommendation that Board stated, * We are satisfied that respondent discontinued the practices complained of herein as soon as it was brought to his attention that these practices were considered objectionable and unprofessional.’ In effect, that is a finding that the ■petitioner acted without wrongful intent and in the belief that his conduct was not ‘ objectionable and unprofessional.’ Quite evidently the Dental Board found a wrong which, in its opinion, was only technical and at least partly venial.

Since the conduct charged here as ‘ unprofessional ’ is not of itself a ground for suspension of license, the order of the Appellate Division should be reversed ”, =■

From the record now before us it appears that there was not only no rule ór regulation of the Board of Regents warning the respondent that the arrangement for which he has been suspended for one year was improper, but, in the absence of any evidence of reprehensible conduct, wrongful intent or prejudice to the public interest, the respondent has been deprived of his livelihood because “ the payment of commissions by licensed dentists to laymen is regarded as unethical by practitioners, generally, of the dental profession in the State of New York and such practice has been defined as unethical * * * in Canons of Ethics adopted and promulgated by the American Dental Association of the United States ” and other associations local to the City and State of New York. It is at least questionable whether upon the record before us the payments made by Dr. Bell were commissions within the rule of these associations; ■ certainly not if the rule would not be violated by paying to an office manager a percentage of professional earnings in compensation for nonprofessional services. Under the decision in the Cherry case (supra), the conduct proved here would not of itself be a ground for suspension of license even if it had been banned by a rule of the board.

The generality of subdivision 2, clause (h) of section 1311 of the Education Law was by our decision in the Cherry case (supra), restricted to exclude from the term unprofessional conduct ” co-operation by the petitioner in the so-called dental credit service plan which we considered might well be subject to censure and regarded as unprofessional conduct even without regulation by the Board of Begents. Such restrictive interpretation is generally considered necessary to save the validity of such statutes. In Sage-Allen Co., Inc., v. Wheeler (119 Conn. 667), the court so construed the words immoral ”, “ fraudulent ”, “ dishonorable ” and “ unprofessional ” contained in a similar statute regulating the profession of optometry. There the court held (at pp. 678, 679): “ These words in themselves have no significance in law even to a reasonable certainty and might seem to authorize the revocation of a license for acts having no reasonable relation to the underlying purpose of the statute, the protection of the public. Giving these words' a broad meaning, it would be difficult to justify the grant to the board of power to revoke a license for any conduct which it might deem to be immoral, dishonorable or unprofessional. [Citing cases.] But if we did give to these words so broad a meaning, we would be attributing to the Legislature an intent to vest the board with power going beyond the scope of its purposes and.to enact a law of at least doubtful constitutionality. We cannot assume that the Legislature intended to give expression to such an intent and must, if it is reasonably possible to do so, so construe the words it has used as to make the provision a valid and reasonable one. [Citing cases.] The words must have been used in the light of the fundamental purpose of the statutes to regulate the profession in the public interest, and they can only be construed as intending to include conduct within their fair purport which either shows that the person guilty of it is intellectually or morally incompetent to practice the profession or has committed an act or acts of a nature likely to jeopardize the interest of the public.”

We' concur in these views, which are generally supported in other jurisdictions (Aiton v. Board of Medical Examiners, 13 Ariz. 354; State ex rel. Lentine v. State Board of Health, 334 Mo. 220, 233; State Board v. Savelle, 90 Col. 177, 187; Walker v. Corwin, 210 Minn. 337, 340; Freeman v. State Board of Medical Examiners, 54 Okla. 531, 538; Forman v. State Board of Health, 157 Ky. 123, 128).

But, even if the case were one which could stand upon a rule of the board, it would emphatically call for the application of the principle stated by Chief Judge Lehman in his opinion in the Cherry case (supra, atp. 154): “ The Legislature, of course, could not grant to an administrative board or quasi-judicial tribunal power to impose such a penalty upon a dentist for act or conduct not defined in advance. That would be contrary to our basic concepts of justice. Nor could it delegate to the Board of Regents legislative power to define, in accordance with an unfettered discretion, the acts or conduct which, in the opinion of the Board, would justify disciplinary action against a dentist.” Here there was no definition in advance. There was a naked determination of “ unprofessional conduct ” which in and of itself was not found to be and was in no sense reprehensible or immoral.

Under these circumstances we are constrained, with deference, to dissent from the opinion of the court in the belief that the unanimous order of the court below should be affirmed.

Lewis, Dye and Medalie, JJ., concur with Conway, J.; Desmond, J., concurs in result only, because he believes that the rule as to division of fees is stated too broadly in the second last paragraph of the majority opinion; Thachee, J., dissents in opinion in which Loughban, Ch. J., concurs.

Order reversed, etc. (See 295 N. Y. 821.)


source: Caselaw Access Project

author: Loughkau, Ch. J.

license: Public Domain

text:
    The People of the State of New York, Respondent, v. Ethel K. Craig, Appellant.
    Argued October 8, 1945;
    decided January 17, 1946.

      Henry Hunter for appellant.
    I. The requirements of section 480 of the Code of Criminal Procedure were not observed. (People v. Nesce, 201 N. Y. 111.). II. The County Court having granted defendant’s motion in arrest of judgment had no jurisdictional power to vacate or revoke it. (People v. Reiser, 240 App. Div. 36; People ex rel. Scharff v. Frost, 198 N. Y. 110; People ex rel. Hirschberg v. Orange Co. Ct., 271 N. Y. 151; People v. Tripodi, 262 App. Div. 939; People v. Reed, 276 N. Y. 6; Ludwig v. Walker, 138 App. Div. 850; Haviland Building Corp. v. Scadron, 243 App. Div. 626; Schenectady Trust Co. v. Emmons, 290 N. Y. 225; Stevens v. Superior Court, 7 Cal. 2d 110; Burnside v. Wand, 170 Mo. 531; Love v. State Bank, 126 Tex. 591; Pucinelli v. United States, 5 F. 2d 6; Liddell v. Landau, 87 Ark. 438.)

      Stanley B. Johnson, District Attorney (Donald H. McCann of counsel), for respondent.
    I. Respondent concedes that appellant should be returned to the County Court for the purpose of permitting her to be questioned as provided in section 480 of the Code of Criminal Procedure and thereafter appropriate action taken as provided by statute. (People v. Nesce, 201 N. Y. 111.) II. Under the circumstances surrounding the granting of the so-called motion in arrest of judgment, and the obvious mutual misapprehension of the court and the attorneys for both respondent and appellant, the judgment of conviction should be affirmed. (People v. Adler, 140 N. Y. 331; Ladd v. Stevenson, 112 N. Y. 325; Clark v. Scovill, 198 N. Y. 279; In re Board of Directors of Automatic Chain Co., 134 App. Div. 863; Vanderbilt v. Schreyer, 81 N. Y. 646; Bohlen v. M. E. R. Co., 121 N. Y. 546; Matter of Lyons v. Goldstein, 290 N. Y. 21; People v. McGrath, 202 N. Y. 445.)
   Loughkau, Ch. J.

In June, 1943, the defendant Ethel K. Craig was convicted of arson in the first degree after a trial in the County Court of Orange County. The verdict of guilty rejected a plea of insanity which had been submitted to the jury. (See Code Crim. Pro., §§ 336, 454.) Before sentence was pronounced, two qualified examiners in lunacy found the defendant to be insane and the court upon their report committed her to Matteawan State Hospital “ to be kept in custody until further disposition pursuant to the laws of the State of New York.” In June, 1944, the defendant was released from that commitment and remanded to the custody of the Sheriff of Orange County with the consent of the Attorney-General, who acted in behalf of Matteawan State Hospital.

During the defendant's detention in that hospital, her counsel made a motion “ for arrest of judgment on the ground that it appears that the defendant may be insane ” and thereupon the court said: “ I will grant that;” Upon reargument, however, that motion was denied in July, 1944, for reasons stated as follows: “ The Court never intended to grant a motion for arrest of judgment, but treated it as a motion to defer imposition of sentence. It was done so casually that the Court quite evidently did not consider it as a motion for arrest of judgment.” In December, 1944, the court sentenced the defendant to confinement in the State prison for women for a term of not less than ten years nor more than twenty-five.

This judgment was affirmed by the Appellate Division, two Justices dissenting’. Leave to appeal to this court was allowed to the defendant by our late Chief Judge Lehman.

(1) The defendant’s main point is phrased thus: “ The County Court having granted defendant’s motion in arrest of judgment had no jurisdictional power to vacate or revoke it.” Such a contention necessarily supposes that the order arresting the judgment embodied a ruling which was actually made and was not a mere inadvertence of the Trial Judge, for the inherent power of the court to conform its records to the evident truth cannot be denied. (People ex rel. Hirschberg v. Orange Co. Ct., 271 N. Y. 151.)

Insanity of the defendant is not a ground for arresting a judgment (Code Grim. Pro., §§ 467, 331), but is rather a legal cause why judgment should not be pronounced against him until he becomes sane (Code Grim. Pro., §§ 480-481, 658-662-f).

Section 470 of the Code of Criminal Procedure says: “ When judgment is arrested, and it appears that there is not evidence sufficient to convict the defendant of any crime, he must, if in custody, be discharged; or, if under bail, his bail must be exonerated; or, if money has been deposited instead of bail, it must be refunded; and in such case the arrest of judgment operates as an acquittal of the charge upon which the indictment was found; but, if there is reasonable ground to believe the defendant guilty, and a new indictment can be framed upon which he may be convicted, the court may order him to be recommitted or admitted to bail anew to answer the new indictment; if there is reasonable ground to believe him guilty of another crime, he must be committed or held to answer therefor; and in no case, when recommitted or held to answer, is the former verdict a bar to a new indictment.” On the motion in question, however, the defendant was neither discharged nor recommitted; instead she was kept in custody as an insane person.

The People did not here appeal from the alleged arresting of the judgment, as it would have been their right to do if the judgment had in fact been arrested (see Code Grim. Pro., § 518, subd. 2). On the other hand, the defendant — after the alleged arresting of the judgment — appealed from her conviction to the Appellate Division where the appeal was dismissed (267 App. Div. 907).

From every viewpoint, then, the motion “ for arrest of judgment ” appears to have been taken by the County Court and by the respective counsel for no more than an application for postponement of sentence on the ground of the defendant’s insanity (see Code Grim. Pro., § 662-b). Hence the court had ample warrant for its denial, upon reargument, of the motion “ for arrest of judgment ”, and the corresponding correction of the records of the court was thus a matter of course.

(2) When the defendant was arraigned for sentence the clerk did not ask whether she had any legal cause to show why judgment should not be pronounced against her, a step that was enjoined by section 480 of the Code of Criminal Procedure. Whether that requirement is absolute in cases of noncapital felonies or may be waived in such cases is a question that is not presented by this record. (Cf. People v. Nesce, 201 N. Y. 111; People v. La Barbera, 274 N. Y. 339. See 2 Bishop’s New Criminal Procedure [2d ed.], § 1293) We know the defendant did not except to the failure of the clerk to inquire whether she had anything to say why judgment should not be rendered. In our opinion, an exception was made unnecessary by the essential nature of the right that was violated (see People v. Bradner, 107 N. Y. 1, 4-5). But a new trial is not called for. Upon a rearraignment of the defendant for judgment, she may be asked by the clerk whether she has any legal cause to show why judgment should hot be pronounced against her' (People v. Nesce, supra); and any issue in respect of her sanity may then be dealt with conformably to sections 481 and 482 of the Code of Criminal Procedure.

The judgments should be reversed and the case remitted to the County Court for further proceedings upon the verdict in accordance with the statute.

Lewis, Conway, Desmond, Thacher, Dye and Medalie, JJ., concur.

Judgments reversed, etc.


author: Thacher, J.

text:
    Isadora S. Moufang et al., Respondents, v. State of New York, Appellant.
    Argued November 20, 1945;
    decided January 17, 1946.

      Nathaniel L. Goldstein, Attorney-General {Orrim, G. Judd, Herbert A. Einhorn and Mortimer H. Michaels of counsel), for appellant.
    I. The statutes applicable to the facts have clearly indicated at all relevant times that there was no duty of investment of court funds after their transfer to the State Treasury. (State Finance Law, § 84, subd. 1; Code Civ. Pro., §§ 743-754; L. 1892, ch. 651, § 9; State Finance Law, § 44, as. added by L. 1909, ch. 58, as amd. by L. 1933, ch. 217.) II. The Legislature has full power over the investment of court funds. (People v. Keenan, 110 App. Div. 537, 185 N. Y. 600; Matter of City of New York, 200 N. Y. 138; Schwartz v. Kutsher, 176 Misc. 815; McBride v. State of New York, 110 Misc. 64.) III. There was no breach of trust. (McBride v. State of New York, 110 Misc. 64.) IV. The termination of interest when funds are transferred into the State treasury is in conformity with the general policy governing unclaimed or abandoned funds. (Brooklyn Borough Gas Co. v. Bennett, 154 Misc. 106.) V. The State’s power over funds of this nature is supreme and violates no vested rights or constitutional limitations. (Provident Institution for Savings v. Malone, 221 U. S. 660; Security Savings Bank v. California, 263 U. S. 282; Anderson National Bank v. Luckett, 321 U. S. 233; Brooklyn Borough Gas Co. v. Bennett, 154 Misc. 106; Malone v. Provident Institution for Savings, 201 Mass. 28; Commonwealth v. Dollar Savings Bank, 259 Pa. 138; Germantown Trust v. Powell, 265 Pa. 71.) VI. The State Comptroller is under no duty, and is without power, to invest the funds claimed by the respondents, and is, therefore, under no obligation to pay interest thereon. (Dunham v. Ottinger, 243 N. Y. 423; State Finance Law, § 81; McBride v. State of New York, 110 Misc. 64.) VIL The authorities relied upon by the courts below and cited in respondents’ point I, do not support the claim.

      Andrew F. Van Thun, Jr., and Frank A. Kister for respondents.
    I. Upon the transfer of the fund to the State treasury, the State Comptroller, ex officio, became a trustee of said fund charged with the duty, under the final decree entered in 1894, to invest the same and accumulate the income thereon during the lifetime of Isadora E. Mangles for the benefit of her surviving children. (State Finance Law, §§ 44, 81; L. 1909, ch. 58; Matter of Spaulding v. Arnold, 125 N. Y. 194; People v. Keenan, 110 App. Div. 537, 185 N. Y. 600; Matter of Sohmer, 156 App. Div. 781; Mills v. Bluestein, 275 N. Y. 317; Society Milion Athena v. Nat. Bk. of Greece, 281 N. Y. 282; Locke v. Pembroke, 280 N. Y. 430; Matter of People v. Maltbie, 184 App. Div. 743, 226 N. Y. 641; Matter of Walsh, 204 N. Y. 276; Matter of City of New York, 200 N. Y. 138; People ex rel. Evans v. Chapin, 101 N. Y. 682.) II. Section 44 of the State Finance Law, as construed by the State, would, in effect, render null the final decree of February 7, 1894, from the time of the transfer of the fund to the State treasury so far as investment of and income from the fund are concerned. Such a construction constitutes an encroachment upon the inherent power of the Supreme Court over its judgments. (De Hart v. Hatch, 3 Hun 375; People ex rel. Mayor v. Nichols, 79 N. Y. 582; Gilman v. Tucker, 128 N. Y. 190; People ex rel. Swift v. Luce, 204 N. Y. 478; Matter of Schmidt v. Chamberlain of N. Y. 266 N. Y. 225; Matter of Lyons v. Goldstein, 290 N. Y. 19; Decker v. Canzoneri,
      256 App. Div. 68; Chesterman v. Eyland, 81 N. Y. 398.) DEL Claimants had vested rights under the decree of 1894. The duration of the investment of and their title to the fund were fixed by the decree and beyond the power of the Legislature to abridge or destroy. (Gilman v. Tucker, 128 N. Y. 190; Matter of Greene, 166 N. Y. 485; Livingston v. Livingston, 173 N. Y. 377; Waddey v. Waddey, 290 N. Y. 251.) IV. The transfer effected a change of depository only a!nd the comptroller thereupon became the depositary of the fund, subject to the mandate of the final decree that the same be invested during the life of Isadora E. Mangles and the income thereon accumulated for the benefit of her surviving, children. (People v. Keenan, 110 App. Div. 537, 185 N. Y. 600; Matter of Sohmer, 156 App. Div. 781; Matter of Spaulding v. Arnold, 125 N. Y. 194.) V. It was the duty of the comptroller as trustee of this fund profitably to employ the same while in his hands under penalty of personal liability for his neglect so to do. (Rapalje v. Hall, 1 Sandf. Ch. 399; Matter of Barnes, 140 N. Y. 468; Price v. Holman, 135 N. Y. 124; King v. Talbot, 40 N. Y. 76; Matter of Muller, 31 App. Div. 80; Matter of Ayvazian, 153 Misc. 467.) VI. The State is liable for the breach of trust by the comptroller in this instance. The Court of Claims has exclusive jurisdiction of this claim. (Court of Claims Act, L. 1989, ch. 860; Breen v. Mortgage Commission, 285 N. Y. 425; Adler, Inc., v. Noyes, 285 N. Y. 34.)
   Thacher, J.

The Appellate Division, third department, has affirmed an order of the Court of Claims granting respondents’ motion for leave to file a claim against the State, and the appeal is here upon the following certified question: “ Does the proposed claim of the respondents state facts sufficient to constitute a cause of action 1

The claim is for damages for failure to invest and keep invested moneys paid into court pursuant to a final decree of the Supreme Court, County of Kings, which was entered February 7,1894, in a partition action brought by Harry C. Hallenbeck and Elizabeth C. Hallenbeck, his wife, against Annette M. Hallenbeck and other defendants. Pursuant to this decree there was deposited with the Treasurer of the County of Kings $1,753.34, which the decree required to be kept invested during the life of Isadora E. Mangles “ for the benefit of her surviving children, the interest thereon to be accumulated, and the whole to be disposed of among the surviving children of said Isadora E. Mangles upon her decease as may be hereafter directed by this Court ”.

Under the Greater New York Charter the custody of this fund devolved upon the Chamberlain of the City of New York, who, on July 1, 1932, transferred to the Treasurer of the State of New York the sum of $6,233.16 representing the original deposit of $1,753.34 with accumulations to that date, all in accordance with the requirements of section 44 of the State Finance Law.' The claimants are the sole surviving children of Isadora E. Mangles, who died on March 16, 1943.

In a proceeding pursuant to sections 136 and 137 of the Civil Practice Act entitled in the Hallenbech action, claimants obtained an order entered in the Kings County Clerk’s office on June 20, 1944, directing the State Comptroller to pay to them the sum of $6,233.16. This order contained the following provision: “ Obdebed, that, the Court not having considered the liability of the Comptroller of the State of New York and of the State of New York or either of them arising out of the failure and neglect, if any, of the said ■ Comptroller to invest said fund, or any part thereof since the date of the transfer of said fund to the State Treasurer on or about July 1st, 1932, this application and order be and hereby are without prejudice to any claim or right which said petitioners [naming the claimants] or either of them, may have or claim to have against the Comptroller of the State of New York and the State of New York or either of them arising out of the failure and neglect, if any, of the Comptroller of the State of New York to invest said fund as aforesaid.”

Under this reservation the claimants contend that, in addition to the sum actually received by the State Treasurer and repaid to them, they are entitled to recover in the Court of Claims damages resulting from the failure of the State Comptroller to keep the fund invested. "Jurisdiction of the Court of Claims to determine the sufficiency of the claim is predicated upon alleged wrongful acts of officials of the State acting as such (see Court of Claims Act, § 9, subd. 2).

Authority to invest money paid into court, originally governed by rule 180 of the Rules and Orders of the Court of Chancery as revised and established in 1837, has since been defined by statute (L. 1892, ch. 651; Code Civ. Pro., § 747; Civ. Prac. Act, § 136). The* force of the decree directing that the fund be kept invested is not questioned so long as the fund remained in the hands of the Treasurer of Kings County or of the Chamberlain of the City of New York, but the State contends that the order did not become binding upon it when the City Chamberlain transferred the fund to the Treasurer of the State pursuant to- section 44 of the State Finance Law (L. 1909, ch. 58). By that statute, both in its original form (L. 1892, ch. 651, § 9) and as it appeared in the State Finance Law (L. 1909, ch. 58), court funds remaining in the hands of any county treasurer or Chamberlain of the City of New York for twenty years were required to be paid over by such officer “ with all accumulations of interest thereon ”, and the direction of the statute was that the State Treasurer shall pay such sum ” to the owner or owners thereof upon presentation of the warrant of the comptroller therefor. The comptroller was in turn directed to issue his warrant “ for such sum ” upon the presentation of an order of the court made in accordance with section 751 of the Code of Civil Procedure (now § 137 of the Civil Practice Act) and upon due notice to the comptroller. Thus the mandate of the statute was to pay the sum originally received and nothing more. The order made in the proceedings under section 137 followed this requirement of the statute and directed payment of the sum originally transferred by the City Chamberlain to the State Treasurer. It seems to be assumed that nothing more could have been required under the statute, but it is contended that the failure to invest the fund in accordance with the decree entered in the partition action in 1894 gives rise to a cause of action for damages which may be brought against the State in the Court of Claims. There was no direction in the statute requiring investment by the officers of the State, and the direction of payment back to the owners of the sum received by the State, without interest or other accumulations, precludes the imposition upon the officers of the State of any duty to invest. Thus stood the law when the decree was entered in 1894 and when the fund was transferred to the State. The decree could not change or annul the statute. The decree must accordingly he limited so as to read in harmony with the statute as providing for investment only during the twenty years and so long thereafter as the County Treasurer or any officer upon whom his duties devolved (in this case the City Chamberlain) continued to hold the fund. When the transfer was made to the State Treasurer, the duties of the State were defined by the statute and no duty to keep the fund Invested was imposed.

In behalf of the claimants it is contended that they had vested rights under the decree of 1894, including the provision that the fund should be kept invested during the life of their mother, and that this provision of a judicial decree was beyond the power of the Legislature to abridge or destroy. This statute did not confiscate or put again in jeopardy property rights established by judgments already obtained, as in such cases as Matter of Greene (166 N. Y. 485); Gilman v. Tucker (128 N. Y. 190, 204); Livingston v. Livingston (173 N. Y. 377), and Waddey v. Waddey (290 N. Y. 251). It was within the power of the Legislature to provide for the custodial care and protection of funds paid into court for many years unclaimed by their owners and to require that after a lapse of twenty years or more such funds should be taken into the custody of the State. The validity of such statutes affecting funds unclaimed for twenty years or more cannot be doubted (Provident Savings Institution v. Malone, 221 U. S. 660; Security Bank v. California, 263 U. S. 282; Anderson Nat. Bank v. Luckett, 321 U. S. 233; Brooklyn Borough Gas Co. v. Bennett, 154 Misc. 106, 115-117). Whether or not the State shall keep such funds invested or credit interest thereon, and if so at what rate, are questions of policy to be determined by the Legislature. The ■point is made that under the decree of 1894 the claimants had no right to claim these funds until after their mother’s death and that this case should be distinguished from the cases cited upon that ground, but we find in this distinction nothing to impair the legislative power to take such funds into the custodial care of the State in order to secure their safety" and protection. This purpose is the justification for the exercise of the power of the State over unclaimed funds and is in our opinion sufficient to support the constitutionality of the statute here involved (Provndent Savings Institution v. Malone, supra, at p. 664).

We conclude that the statute was valid and that the decree, which was entered after the enactment of the statute, did not confer rights in conflict with the statute. Our decision in Matter of Schmidt v. Chamberlain of N. Y. (266 N. Y. 225) decided nothing to the contrary. It dealt with a different subdivision of the same section of the statute and did not decide that that subdivision impinged upon the jurisdiction of the Supreme Court, although the question was reserved.

It is urged that the amendment of section 44 of the State Finance LawT in 1933 (L. 1933, eli. 217), providing that moneys paid into court and transferred to the State should be transferred to the general fund, shows that the Legislature recognized no obligation to keep such funds invested. The State also urges that the comptroller is a constitutional officer who has no power to invest funds in his keeping unless authorized by statute. We pass both of these considerations without comment because section 44 of the State Finance Law plainly governed the situation and was in terms a negation of any duty to keep such funds invested.

. The courts below relied strongly upon People v. Keenan (110 App. Div. 537, affd. without opinion 185 N. Y. 600). In that case the City Chamberlain refused to pay over to the Treasurer of the State moneys paid into court and remaining unclaimed for over twenty years. A peremptory writ of mandamus was issued requiring him to pay over. His contention was that the statute was unconstitutional because, as he contended, it deprived the beneficiaries of their property without due process of law. He also contended that the act vacates and nullifies orders of the court. It was said in the Appellate Division that the transfer in nowise affected the right and title of the beneficiaries in the fund and could not nullify any order or decree of the court. It was not necessary for this court in affirming that decision to follow the language or the reasoning of the opinion of the Appellate Division. The City Chamberlain “was in no position to question the constitutionality of the statute or to assert the rights of the claimants, if any, under the decrees which were entered when the funds were deposited in court.

The orders should be reversed and the motion denied, without costs. The question certified should be answered in the negative.

Loughran, Ch. J., Lewis, Conway, Desmond and Dye, JJ., concur; Medalie, J., taking no part. 6

Orders reversed, etc.


text:
    In the Matter of Colonial Liquor Distributors, Inc., Respondent, against John F. O’Connell et al., Constituting the State Liquor Authority, Appellants, and New Amsterdam Casualty Company, Respondent.
    Argued October 22, 1945;
    decided January 17, 1946.

      Elvin N. Edwards, Harry F. Karst, Henry V. Doell and Jack Beinstein for appellants.
    I. The appeal to the Court of Appeals lies as of right. (Matter of Weinstein v. Board of Regents, 292 N. Y. 589; Matter of Klenk, 214 N. Y. 715; Matter of Neglia v. Zimmerman, 237 N. Y. 131; Stock v. Mann, 254 N. Y. 507; Matter of N. L. State Elec. Corp. v. P. S. Comm., 260 N. Y. 32; Matter of Vleck v. Parry, 270 N. Y. 371.) II. The petitioner violated subdivision 10 of section 104 of the Alcoholic Beverage Control Law in failing to keep on the licensed premises adequate and accurate books and records and in failing to record on its invoices the true price at which alcoholic beverages were sold. III. The petitioner violated subdivision 2 of section 100 of the Alcoholic Beverage Control Law in selling liquor for purposes of resale to a person not duly licensed to sell such liquor and also violated subdivision h of section 99-b of the same law in taking orders from persons not holding permits required by said section. (Matter of Wylegala v. Railway Express Agency, Inc., 177 Misc. 1071, 264 App. Div. 937; Matter of Gunther’s Sons v. McGoldrick, 255 App. Div. 139, 279 N. Y. 148.) IV. The Legislature conferred upon the State Liquor Authority the power to execute and enforce both the letter and spirit of the Alcoholic Beverage Control Law. V. There was sufficient cause for the action taken by the authority in revoking petitioner’s license. (Matter of Menick, 279 N. Y. 795; Matter of Conomon v. State Liquor Authority, 254 App. Div. 650, 278 N. Y. 591; Matter of Yates v. Mulrooney, 245 App. Div. 146; Matter of Miller v. Kling, 291 N. Y. 65.) VI. The Legislature conferred upon the authority the right to revoke for discretionary causes which need not be enumerated prior to the revocation. (Surace v. Danna, 248 N. Y. 18; People v. Ryan, 274 N. Y. 149; Chittenden Lumber Co. v. Silberblatt & Lasker, Inc., 288 N. Y. 396; People ex rel. Huff v. Graves, 277 N. Y. 115.) VII. A license may be revoked, canceled or suspended for acts which.occur in a period preceding the issuance of the license. (Matter of Conomon v. State Liquor Authority, 254 App. Div. 650, 278 N. Y. 591.)

      Frank L. Wiswall, Monroe I. Katcher, II, and Charles W Newmark for respondent.
    I. No appeal to the Court of Appeals lies as of right. ' (Matter of Toyos v. Bruckman, 291 N. Y. 745; Matter of Begent v. Noyes, 284 N. Y. 229; Matter of Newman

      Lake House, Inc., v. Bruckman, 283 N. Y. 646; Matter of Gazdun v. Bruckman, 280 N. Y. 621; Matter of Joyce v. Bruckman, 284 N. Y. 736; Matter of Baker, 284 N. Y. 576.) II. Discretionary revocation must be based upon causes stated at the time of issuance of a license, as required by subdivision 5 of section 114 of the Alcoholic Beverage Control Law. (Matter of Lyman, 163 N. Y. 536.) III. The authority did not make the violation or conviction of an O.P.A. regulation discretionary cause sufficient for revocation. (Matter of Donegan, 282 N. Y. 285; People v. Schacher, 181 Misc. 769.) IV. The determinations of the authority revoking petitioner’s licenses were invalid not only as a matter of law, but there was no substantial evidence to support them. The violations did not occur during the period for which the license was issued. (Jacobus v. Colgate, 217 N. Y. 235; Story v. Craig, 231 N. Y. 33; Grimmer v. Tenement House Department, 205 N. Y. 549; City of New York v. New York City R. Co., 193 N. Y. 543; Matter of W. S. A. & P. R. R. Co., 115 N. Y. 442; Matter of Stupack, 274 N. Y. 198; Town of Amherst v. County of Erie, 260 N. Y. 361; Easton v. Pickersgill, 55 N. Y. 310; People ex rel. Frank Brewery v. Cullinan, 168 N. Y. 258.) V. Charges embracing the alleged failure of petitioner to keep upon the licensed premises adequate and accurate books, records and invoices of all transactions involving the business transacted by petitioner should have been dismissed. (Matter of Pennsylvania Whiskey Distributing Corp. v. Bruckman, 256 App. Div. 781, 282 N. Y. 665.)
   Thacher, J.

The State Liquor Authority has taken two appeals from a single order of the Appellate Division, Third Department, annulling the Authority’s revocation of two wholesale liquor licenses issued to petitioner-respondent and remitting the matter to the State Liquor Authority to proceed in accordance with the decision of the Court.” The first notice of appeal is filed as of right on the theory that the order appealed from is final. Respondent disputes our jurisdiction to entertain this appeal, contending that the remission to the Authority renders the order appealed from nonfinal, citing Matter of Toyos v. Bruckman (291 N. Y. 745); Matter of Begent v. Noyes (284 N. Y. 229); Matter of Newman Lake House, Inc., v. Bruckman (283 N. Y. 646); Matter of Gazdun v. Bruckman (280 N. Y. 621) and Matter of Joyce v. Bruckman (284 N. Y. 736).

The rule is not in doubt. Where upon review of an administrative determination the Appellate Division remits the matter to the board or authority to proceed in accordance with the decision of the Court ”, finality of the order depends upon what remains to be done by the administrative authority, and if nothing more than purely ministerial action is required of it then the order is final. (Matter of Kiriloff v. A. G. W. Wet Wash Laundry, 282 N. Y. 466; Matter of Vleck v. Parry, 270 N. Y. 371; Matter of Grade Crossings (N. Y. C. R. R. Co.), 255 N. Y. 320; Matter of Neglia v. Zimmerman, 237 N. Y. 131.) But, while the rule is clear enough, there is confusion in its application. The Begent and Gasdun cases (supra), clearly appear to apply the rule because judicial duties remained to be performed by the Commissioner of Markets in the Begent case and by the Liquor Authority in the Gasdun case. In the Toyos, Joyce and Newman Lahe Mouse cases (supra), we did not intend to impair the principle which has governed our decisions or the rule that finality depends upon the character of the acts which remain to be done upon a remission from the Appellate Division. Accordingly we must consider what action the law would permit the Liquor Authority to take in this case upon the remission from the Appellate Division. Under the order annulling its revocation of the licenses nothing is left for the Authority to do except to perform those purely ministerial acts which may be necessary to give effect to the decision of the Appellate Division. The proceeding was one to revoke a license and the effect of the order annulling the revocation was finally to determine and bring it to a close. It could not be continued for any purpose and nothing remained for consideration or determination by the Authority. Revocation of the licenses having been annulled, that ended the matter, and we are constrained to conclude, therefore, that under the established rule the order appealed from was final and within our jurisdiction to review.

The other appeal, said to have been taken pursuant to subdivision 3 of section 7 of article VI of the Constitution, is dismissed upon the ground that the order appealed from does not direct a new hearing.

The petitioner, a domestic corporation engaged in the sale and distribution of alcoholic beverages at wholesale in the State of New York, has conducted its business at premises in Kingston and in Albany and during the period from October 1, 1943, to October 1,1944, was licensed under two wholesale liquor licenses covering that period, one numbered LL-131 for premises located in Kingston and the other numbered LL-33 for premises located in Albany.

On September 11, 1944, petitioner and its president, Vincent J. Andretta, pleaded guilty to an information in the United States District Court for the Southern District of New York charging in ten separate counts sales of whiskey for sums in excess of the ceiling prices promulgated by the Federal Price Administrator. All of these sales occurred between August 23 and September 20,1943, before the commencement of the period covered by the licenses here in question.

Upon their pleas of guilty the petitioner and its president were jointly and severally sentenced to pay a fine of twenty thousand dollars and Andretta, the president, was sentenced to six months in jail, the execution of this jail sentence being suspended.

On September 16, 1944, proceedings were instituted before the State Liquor Authority to revoke the two licenses each of which was about to expire on October 1, 1944. A hearing was held on October 4,1944, at which the two proceedings were consolidated. By stipulation between the parties a wholesale liquor license for the premises in Albany for the period commencing October 1, 1944, and expiring September 30, 1945, was issued to the petitioner, in consideration for which it agreed that the Liquor Authority might take any action in the proceedings with respect to said license that it might have taken with respect to the license expiring September 30, 1944.

These proceedings resulted in a determination of the State Liquor Authority revoking petitioner’s wholesale liquor license for the premises in Kingston in an order which set forth as the ground of revocation: selling liquor at a price in excess of the ceiling prices fixed by the Office of Price Administration; conviction for such sales; violation of section 104, subdivision 10, of the Alcoholic Beverage Control Law in failing to keep upon the licensed premises adequate and accurate books and records of all transactions involved in the business transacted by the licensee; violation of section 100, subdivision 2, of the same Law in the sale within the State for purposes of resale to a person who was not duly licensed to sell such liquor; receiving orders from persons to purchase liquor who did not hold a permit as required by section 99-b, subdivision h, of the Alcoholic Beverage Control Law, and that the conduct of the licensee in connection with its business of selling liquor at prices in excess of the ceiling price as fixed by the Office of Price Administration was not conducive to the proper regulation and control of traffic in alcoholic beverages, did not further the object of the provisions of the Alcoholic Beverage Control Law, and that the licensee violated section 104, subdivision Í0, of the Alcoholic Beverage Control Law in that it recorded sales of alcoholic beverages on invoices which did not state the true price for which such alcoholic beverages were sold.

Coincidentally with the revocation of petitioner’s Kingston license the Authority directed the petitioner to surrender the Albany license issued pursuant to stipulation, and after several extensions of time this license was revoked by the Authority. The Kingston license had been lawfully revoked and paragraph (a) of subdivision 5 of section 126 of the Alcoholic Beverage Control Law forbade all traffic in alcoholic beverages by petitioner for two years. Consequently petitioner may not complain of the revocation of the Albany license which the statute had rendered illegal.

This proceeding to review the action of the Liquor Authority was commenced on January 9, 1945, by service upon the respondents of a notice of motion and a petition pursuant to article 78 of the Civil Practice Act. The relief sought was annulment of the revocation of the Kingston license and annulment of the determination of the Authority directing the surrender of the Albany license. At Special Term the question presented was thought to be proper for its consideration under section 1296 of the Civil Practice Act and the Authority was sustained in revoking the Kingston license but was reversed for having revoked the Albany license.

The Appellate Division held that the proceeding should have been transferred to it in the first instance and, treating it as if it had been, decided that the determination of the State Liquor Authority should be annulled because the violations relied upon as the basis for revocation occurred prior to the licensing period and that the decision of Special Term to the contrary should be vacated. It was also held in the Appellate Division that selling liquor at prices in excess of ceiling prices fixed by the Price Administrator was not cause for revocation under section 118 of the Alcoholic Beverage Control Law, nor had it been specified by the Authority as a cause for revocation under subdivision 5 of section 114 of the Alcoholic Beverage Control Law. We agree that selling liquor at prices in excess of ceiling prices fixed by the Price Administrator was not cause for revocation of either of the licenses in this case. The law7 itself in section 118 specifies eight causes for which a license must be revoked. These causes are introduced by the following sentence: ‘1 Any license issued pursuant to this chapter may be revoked for cause, and must be revoked for the following causes ”. Selling at prices in excess of ceiling prices is not mentioned in section 118 among the causes for which a license must be revoked.

This section is however supplemented by subdivision 5, section 114, which reads as follows: “ 5. There shall be printed and furnished by the liquor authority to each licensee a statement of the causes for which licenses may be revoked. Such statement shall be prepared by the liquor authority and delivered to the licensee with his license or as soon thereafter as may be practicable. Any amendments thereto shall also be sent by the liquor authority to all licensees as soon as may be practicable after such amendments. Failure to send such statements or changes therein, or failure to receive the same, or any misstatement or error contained in such statements or amendments shall, however, not be an excuse or justification for any violation of law, or prevent, or remit, or decrease any penalty or forfeiture therefor.”

Pursuant to this provision of the statute the Authority issued to licensees under date of October 1, 1936, a specific statement of causes for which licenses may be revoked which included the following:

“ 2. A license MAY BE revoked for any of the following causes:

“ (a) * * *

“ (b) # * *

“ (c) Violation of any provision of Chapter 478 of the Laws of 134 [sic] known as the Alcoholic Beverage Control Law.”

A similar notice issued in October, 1942, stated among the causes: “ 9. Violation of any provision of the Alcoholic Beverage Control Law; * *

It is conceded that the petitioner received from the Authority these statements specifying the causes for which licenses may be revoked, each of which was issued in compliance with subdivision 5 of section 114 of the law. In no such statement was the violation of ceiling price regulations specified as a cause for revocation of a permit granted under the Alcoholic Beverage Control Law and we accept the conclusions of both courts below that the sales at prices above ceiling prices did not constitute legal cause for revocation of either of the licenses here in question.

It appears however that the methods followed by the petitioner when such sales were made involved violations of the Alcoholic Beverage Control Law in that each invoice stated the ceiling price as the sales price although an additional sum in excess of the sales price was collected from the purchaser in each transaction. The price falsely stated as the selling price on each of the invoices was carried into the regular books of account.

Section 104, subdivision 10, as amended by Laws of 1940, chapter 611, section 2, effective April 18, 1944, contains the following applicable provisions: “ 10. Each wholesaler shall keep and maintain upon the licensed premises, adequate books and records of all transactions involving the business transacted by such wholesaler * * *. Such wholesaler shall deliver to the purchaser a true duplicate invoice stating the name and address of the purchaser, the quantity of alcoholic beverages, description by brands and the price of such alcoholic beverages, and a true, accurate and complete statement of the terms and conditions on which such sale is made. * # * ”

The State Liquor Authority found the following facts recited in its order revoking the Kingston license:

“ 3. That the licensee violated Section 104, subdivision 10, of the Alcoholic Beverage Control Law in that it failed to keep upon the licensed premises adequate and accurate books and records of all transactions involving the business transacted by the licensee.”

“ 8. That the licensee violated Section 104, subdivision 10, of the Alcoholic Beverage Control Law in that it recorded sales of alcoholic beverages on invoices which did not state the true price for which such alcoholic beverages were sold.”

These findings are amply supported by admissions of petitioner’s counsel appearing in the record.

The State Liquor Authority also found:

“ 4. That the licensee violated Section 100, subdivision 2, of the Alcoholic Beverage Control Law in that it sold or agreed to sell liquor in [this] state for purposes of resale to a person who was not duly licensed to sell such liquor at the time of such agreement or sale.”

“ 5. That the licensee received an order or orders from a person or persons to purchase liquor from the licensee which person or persons did not hold a permit as required by Section 99-b subdivision h, of the Alcoholic Beverage Control Law.”

Counsel for petitioner conceded that such sales were made to persons who were not licensed but in defense relied upon the fact that they were all made before the license period commenced on October 1, 1943. No one questioned that such sales were in fact violations of the law. The Appellate Division held that they were not cause for revocation of the license because not made within the period of the license which has been revoked.

The question of law presented is whether a license may be revoked for violations which occurred in a prior licensing period and were not discovered by the Authority until after the issuance of the license sought to be revoked. One can of course conceive of a situation in which a revocation for a long past offense would be an abuse of the Authority’s discretion but clearly this is not such a case. The offenses- were disclosed in June of 1944 by the indictment filed in the District Court, and were admitted by the defendants’ pleas of guilty on September 11, 1944. The proceedings leading to the revocation of the license were commenced five days thereafter. The offenses were not trivial; there were a number of sales involving substantial quantities of liquor and each one of these sales involved not only a violation of the Federal statute but of the Alcoholic Beverage Control Law as well. Renewal applications for each of the licenses commencing October 1, 1943, were received from the petitioner on September 13, 1943. Although all but one of the sales to unlicensed persons occurred shortly before that date, none of these sales was disclosed by petitioner in applying for renewal of his licenses.

No case arising under this law is cited for the proposition that a license may only be revoked for violations occurring within the term for which the license was issued. Quite regardless of the particular circumstances of this case, the court below has apparently established an absolute rule to be applied in every case where the cause of revocation occurred in a prior licensing period.

The only authority cited by the respondent in support of its contention is Walter v. Pennington (25 F. 2d 904, 905), a decision of the United States District Court for the Western District of Pennsylvania. That was a proceeding to revoke a permit under the National Prohibition Act predicated upon the requirement of the statute that the commissioner cite a permitee for hearing if he has reason to believe the permittee “ is not in good faith conforming to the provisions of this act ”. Construing the particular language involved — “ is not in good faith conforming to the provisions of this act ” — the court held that this language could have no reference to failures or derelictions under prior permits.

Here we are concerned with no such express language. Cause for revocation specified is “ violation of any provision of the Alcoholic Beverage Control Law ”. The respondent argues that because of an amendment of the statute in April, 1945 (L. 1945, ch. 522), which expressly authorized revocation because of violations occurring during the license period immediately preceding the issuance of the license or permit, we must construe the statute as containing no such authority prior to that date, and in support of this contention refers to a speech made by the respondent-appellant O’Connell, Chairman of the State Liquor Authority, in which he said with reference to this amendment: “ The law as unamended prevented the Authority from proceeding against the license on the basis of any violations committed at any time other than during the current license period. This made it imperative when the matter of processing an application for the renewal of a license was involved that the investigation and proceedings be conducted in many instances without sufficient time for orderly, deliberate, judicial disposition.”

Notwithstanding these remarks, we must construe the language of the statute as we find it and determine from its language the intention of the Legislature when the statute was enacted. The regulation authorized by statute specifies as cause for revocation “ Violation of any provision of the Alcoholic Beverage Control Law ”, and we may not limit the regulation by an absolute rule that no violation occurring before issuance of a renewal license is cause for revocation thereof., In this case the violations were of such a character and were so closely identified in time and circumstance with the business under regulation that we may not say that the revocation was without authority or in any way an abuse of regulatory power.

The question remains as to whether we should direct reinstatement of the determination of the State Liquor Authority revoking the licenses. It seems quite clear that the Authority predicated its action in large part upon violations of the Federal statute, and the argument here made in its behalf carries the same emphasis.

The appeal predicated upon subdivision 3 of section 7 of article VI of the Constitution should be dismissed, without costs. Upon the appeal taken as from an order finally determining the proceeding, the order should be reversed, without costs, and the matter remitted to the State Liquor Authority, with directions to hold a rehearing and thereafter to take such proceedings as it may deem proper not inconsistent with this opinion.

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

Ordered accordingly. (See 295 N. T. 825.)


author: Lottgheah, Ch. J.

text:
    The People of the State of New York, Appellant, v. Louis Scheinman, Respondent. (Four cases) The People of the State of New York, Appellant, v. Abraham Spanier, Respondent.
    Argued November 29, 1945;
    decided January 24, 1946.

      Ignatius M. Wilkinson, Corporation Counsel (Henry J. Shields and James Hall Prothero of counsel), for appellant.
    I. Since the facts were conceded by defendants the reversal of the judgments was an improper disposition of the appeals. Even if the facts were before the Appellate Division for review the decision at most should have been a modification of /the judgments and a direction of new trials. (People v. Friedman, 138 App. Div. 29, 200 N. Y. 591; People v. Atlas, 183 App Div. 595; People v. Poulin, 207 N. Y. 73; People v. Bellows, 281 N. Y. 67; Caldwell v. Lucas, 233 N. Y. 248; Queeney v. Willi, 225 N. Y. 374.) IT. Whether the evidence sustains a . decision or judgment is a question of law and the Court of Appeals may review the evidence for that purpose. This is not the review on the facts prohibited by the Constitution. (People v. Nixon, 248 N. Y. 182; People v. Bellows, 281 N. Y. 67; Goodman v. Marx, 234 N. Y. 172.)

      Avrum J. Schrager and Abner H. Pike for respondents.
    I. The judgments of conviction of the City Magistrate having been reversed on the facts by the Appellate Division, its decision is not-reviewable by the Court of Appeals and the appeal, therefore, should be dismissed. (People v. Mitchell, 142 N. Y. 639; People v. O’Brien, 164 N. Y. 57; People v. Weiner, 211 N. Y. 469; Code Crim. Pro., § 543-a; Civ. Prac. Act, § 605.) II. The Appellate Division could, upon reversing the judgments of conviction, dismiss the complaints. (Code Crim. Pro., § 543, subd. 1; People v. Weiner, 211 N. Y. 469; People v. Mangan, 262 N. Y. 508; People v. Black, 262 App. Div. 733.)
   Lottgheah, Ch. J.

After trial before a magistrate sitting as, Court of Special, Sessions in accordance with article VIII of the New York City Criminal Courts Act, the defendants were convicted of having on several occasions unlawfully kept food that was unfit for human consumption.

The charges were laid under section 148 of the Sanitary Code of the City of New York and regulation 27 of the Board of Health of the City. Section 148 provides: No building, room, or place, where food is prepared, cooked, mixed, baked, smoked, preserved, exposed, "bottled, packed, handled, stored, or manufactured, shall be conducted, operated, maintained, or used otherwise than in accordance with the regulations of .the Board of Health.” Regulation 27 says: “ Food which has become "unfit for human consumption, shall be kept separate and apart from other foodstuffs which are held, kept, and offered for sale, properly denatured, marked Condemned ’ and removed daily.”

' .At each of the times in issue, the defendants concededly kept at their place of business eggs that were unfit for human consumption, without having denatured them or marked them “ Condemned ” and without having separated them from other foodstuffs that were then and there offered for sale. The People gave evidence that in each instance the eggs had previously been candled, — i.e., tested as to quality by being held between the eye and a light. The defendants gave evidence to the contrary. Such were the several items of the controversy.

■ On appeal by the defendants, the Appellate Division reversed each of the convictions “ on the facts ” and. in each case remitted the fine and dismissed the complaint. The cases are here upon a certificate of our late Chief Judge Lehman (see Code Crim. Pro., § 520, subd. 3).

In their brief and argument, the defendants do not refer to the merits of the controversy. They make a single point, viz.: The judgments of conviction of the City Magistrate having been reversed on the facts by the Appellate Division, its decision is not reviewable by this Court and the appeal, therefore, should be dismissed.” "We cannot adopt that position. The above-recited facts are ample warrant for the Magistrate’s findings of guilt. In that state of the record, the Appellate Division was without power to dismiss the complaints. (People v. Bellows, 281 N. Y. 67.)

As to each defendant, the order of the Appellaté Division and the judgment of the Court of Special Sessions should be reversed and a. new trial ordered.

Lewis, Conway, Desmond, Thacher, Dye and Medalie, JJ., concur.

Orders reversed, etc.


author: Cokway, J.

text:
    Louis J. Selzer, Appellant, v. John Baker, Defendant, and Mary B. Selzer, Respondent.
    Argued December 3, 1945;
    decided January 24, 1946.

      Riley H. Heath and Joseph P. Reynolds for appellant.
    I. The doctrine of equitable estoppel applies against a tax sale purchaser who serves within the three-year period a written notice extending the time to redeem beyond the three-year period, in reliance upon which the owner redeems after the three-year period. (Mabie v. Fuller, 255 N. Y. 194; Matter of Cooper, 93 N. Y. 507; Conde v. City of Schenectady, 164 N. Y. 258; City of Oswego v. Montcalm Dock Co., Inc., 245 App. Div. 555; Metropolitan Life Ins. Co. v. Childs Co., 230 N. Y. 285; Rothschild v. Title Guaranty & Trust Co., 204 N. Y. 458; Black on Tax Titles [2d ed.], § 354; Schoemaker v. Porter, 41 Iowa 197; Steiner
      v. Coxe, 4 Pa. St. 13; Moore v. Boagni, 111 La. 490; Bush v. Bush, 275 S. W. 1096 [Tex.]; McCulloch v. Dodge, 6 R. I. 346; Taylor v. Courtney, 15 Neb. 190.) II. When respondent paid the amount of the tax to defendant Baker and took a tax deed and quitclaim deed, to which tax deed was attached a certificate by the County Treasurer that a notice had been served pursuant to section 134 of the Tax Law, the respondent, as grantee, was not an innocent purchaser and stands in the place and stead of said defendant, as grantor. (Reynolds v. Commercial Fire Ins. Co., 47 N. Y. 597.)

      David F. Lee for respondent.
    I. The title of respondent under the tax deed became absolute at the expiration of three years from the date of sale. (Mabie v. Fuller, 255 N. Y. 194; Callahan v. Underwood, 260 App. Div. 352, 285 N. Y. 620; Quist v. Gwinup, 267 App. Div. 224.) II. The facts in connection with the alleged notice to redeem did not constitute an equitable estoppel. (Stanton v. Hawley, 193 App, Div. 559; Andrews v. Aetna Life Insurance Co., 85 N. Y. 334.) m. Bespondent having no notice of the alleged redemption notice was not bound thereby. (Wood v. Chapin, 13 N. Y. 509; Hayes v. Nourse, 114 N. Y. 595; Slattery v. Schwannecke, 118 N Y. 543.)
   Cokway, J.

The plaintiff, Louis J. Selzer, was the owner and occupant of a parcel of land in the town of Hamilton in Madison County consisting of some 160 acres. The property was assessed to him. It was sold for unpaid taxes of the year 1939 on the 17th day of October, 1940. The purchase at the tax sale was made by one Baker and the County Treasurer delivered to him a tax deed of the property on Nqvember 15, 1941. Had Baker taken no steps thereafter, title in him would have been complete on October 16, 1943. (Tax Law, § 137; Mabie v. Fuller, 255 N. Y. 194.) Instead, however, Baker served upon the plaintiff by registered mail on the 7th day of April, 1943, more than two years after the date of sale, a “ notice to owners or occupants or interested parties to sale of land for taxes.” It contained the following sentence: “ The following is the sum necessary to be paid to the County Treasurer of Madison County for the benefit of the grantee within six months after the time of filing in said County Treasurer’s Office the evidence of the service of this notice(Emphasis supplied.) The notice was ineffectual as a compliance with Tax Law, section 134, because it was not served within two years from the date of sale and because it was neither served personally nor by leaving it at the dwelling house of the occupant. Thereafter the wife of the plaintiff, Mary B. Selzer, one of the defendants herein, from whom plaintiff was estranged although both lived on the farm, purchased a quitclaim deed from Baker upon paying the sum due him under his tax sale purchase. At the time of-the delivery to her of the quitclaim deed and the tax deed of Baker, there was attached to the latter, which she recorded on September 27, 1943, the following certificate:

“ This is to Certify that a Notice and Affidavit showing service thereof on the 7th day of April, 1943, was filed in the Madison County Treasurer’s Office, on the 6th day of May, 1943. Said notice and affidavit were filed for the purpose of complying with Section 134, of the New York State Tax Law with reference to the property described in this deed.

A. J. White,

County Treasurer, Madison

County. ’ ’

Thus under the notice as given by Baker, the plaintiff had until November 6, 1943, to redeem his property, which was some twenty-one days more than three years after the date of sale. Sometime in August or September, 1943, the plaintiff went with the notice to the office of the County Treasurer, who examined the records and advised him that proof of service of the notice had been filed and that he had until November 6, 1943, to redeem his property. On October 26, 1943, the plaintiff paid to the County Treasurer the sum specified in the notice served by Baker as the amount required to redeem, plus interest, and the County Treasurer issued to him a redemption certificate. In March of 1944, the plaintiff demanded of his wife that she reeonvey the property to him. Upon her refusal, this action was brought to have the tax deed to Baker, as well as the quitclaim deed from him to the defendant Mary B. Selzer, declared void and to have the record of them canceled. The County Treasurer has issued a check to the defendant Selzer for the money paid by her to Baker and it is in her possession uncashed.

The complaint was dismissed as to Baker, and no appeal has been taken.

The question presented to us for our determination is whether, as between the plaintiff and Baker, a period of redemption was created different from the one provided by the Legislature. As a general rule a party may waive a statutory or even a constitutional provision enacted for his benefit or protection, where it is exclusively a matter of private right, and no considerations of public policy or morals are involved, and cannot afterward invoke its protection. (Vose v. Cockroft, 44 N. Y. 415; Matter of Cooper, 93 N. Y. 507; Conde v. City of Schenectady, 164 N. Y. 258; Sentenis v. Ladew, 140 N. Y. 463.) It is true that the notice here was not an effective compliance with the statute, but it did result in a visit by plaintiff to the County Treasurer’s office with such notice for the purpose of ascertaining the date of the filing of the affidavit of service and the consequent final payment date six months thereafter. Prior to that latter date, redemption was made by plaintiff. We think it dear that Baker was estopped to insist that the statutory period of three years controlled rather than the date he fixed in his notice. “ An estoppel rests upon the word or deed of one party upon which another rightfully relies and so relying changes his position to his injury. When this occurs it would be inequitable to permit the first to enforce what would have been his rights under other circumstances.” (Metropolitan Life Ins. Co. v. Childs Co., 230 N. Y. 285, 292; Rothschild v. Title Guarantee & Trust Co., 204 N. Y. 458, 462.) Moreover, in Black on Tax Titles [2d ed.], § 354, citing cases in other jurisdictions, we find this language: There is nothing in law or in reason which absolutely compels a tax purchaser to stand upon the exact letter of his rights. Although it is entirely optional with him, he undoubtedly may waive a strict compliance with the statutory provisions for redemption, if he so chooses. This may be done by contract with the owner. Thus an agreement between the tax purchaser and the owner, that the latter shall be allowed additional time for redemption, is valid and may be enforced. * * * Or the purchaser may manifest his waiver of strict compliance by his conduct. * * * And the same principle has been applied to a permissive redemption after the time from a city or county which has bought in the land.” (See, also, Cooley on Taxation [4th ed.], § 1579; 61 C. J., Taxation, § 1785; Labadie v. Camburn, 248 Mich. 187.)

Under the circumstances disclosed here, the defendant Selzer stood in no better position than Baker. The certificate of the County Treasurer was attached to the tax deed. The fact that the notice filed in the County Treasurer’s office was unsigned is of no moment. The notice as filed showed that the redemption period had been extended by Baker until November 6,1943.

The judgments should be reversed and a new trial granted, with costs to abide the event.

Loughran, Ch. J., Lewis, Desmond, Thacheb, Dye and Medalie, JJ., concur.

Judgments reversed, etc.


author: Lewis, J.

text:
    Dorothy Weiman, Appellant, v. Max O. Weiman, Respondent.
    Submitted October 11, 1945;
    decided January 25, 1946.

      Abraham Engelman and Harold A. Taft for appellant.
    The Court of Appeals has jurisdiction to pass upon the question whether or not an appellate division, as a matter of law, can substitute its opinion on the facts for that of a trial court which has already made a finding. Subdivision 3 of section 588 of the Civil Practice Act, as enacted in 1942, specifically gives this court jurisdiction to determine whether or not “ the appellate division erred as a matter of law in granting a new trial or hearing”.

      M. H. Miller for respondent.
    The only question for the Court of Appeals to decide is whether there is any evidence to sustain the decision of the Appellate Division, and not whether there is evidence to sustain the decision of the trial court, as appellant contends. (Curcio v. City of New York, 275 N. Y. 20; Weaver v. Pacific Improvement Co., 234 N. Y. 418; World Exchange Bank v. Commercial Cas. Ins. Co., 255 N. Y. 1.)
   Lewis, J.

Upon this appeal in a matrimonial action a decisive question first to be considered is the efficacy of a stipulation for judgment absolute to give us jurisdiction.

In his answer to his wife’s complaint for a separation the defendant interposed a counterclaim for the annulment of the marriage on the ground of plaintiff’s fraud. In substance the defendant alleged that for the purpose of inducing him td consent to marriage the plaintiff falsely and fraudulently represented that certain permanent injuries from which she suffered had been sustained in an automobile accident when in fact such injuries had been incurred while she was suffering from insanity which caused her to attempt suicide by jumping from a window'; that as a result of such attempted suicide plaintiff was committed to an institution maintained by the State for the custody and treatment of the insane and was confined there for a period of eighteen months; that in November, 1942, after his marriage to the plaintiff, the defendant first discovered that such representations were false when the plaintiff was about to be admitted to Hillside Hospital for treatment of a recurrence of her insanity. By her reply the plaintiff denied the defendant’s allegations of fraud and alleged condonation by the defendant after he had knowledge of facts pleaded in the counterclaim. At Special Term — where the only issues tried were those tendered by the defendant’s counterclaim and plaintiff’s reply thereto — the defendant’s counterclaim was dismissed upon the ground that by his voluntary cohabitation with the plaintiff “ after he had knowledge of the facts ” the defendant had waived any fraud practiced by her upon him. A judgment to that effect was. thereafter reversed at the Appellate Division on the law and the facts and a new trial was granted on the ground that the finding by the Justice at Special Term of con-donation by the defendant was against the weight of evidence.

Our problem arises from the fact that the plaintiff — without exercising the right to a new trial thus granted to her but assuming to exercise the right accorded by the Constitution of this State (art. VI, § 7, subd. [3]) and by Civil Practice Act, section 588, subdivision 3 — has served and filed a notice of appeal to this court accompanied by a stipulation that in the event the order of the Appellate Division, reversing the judgment of Special Term and granting a new trial of the defendant’s counterclaim, is affirmed by this court, judgment absolute shall be rendered against her and in favor of the defendant on his counterclaim.

A judgment entered upon a stipulation for judgment absolute is “ * * * founded upon the agreement of the parties that a certain result should follow the decision of this court upon the questions of law presented to it by the record in court.” (Roberts v. Baumgarten, 126 N. Y. 336, 341.) It is “ * * * in effect a stipulation for judgment by consent in case of affirmance ”. (Christensen v. Morse Dry Dock & Repair Co., 243 N. Y. 587; Canfield v. Harris & Co., 252 N. Y. 502, 505.) Where, as in this case, the reversal is upon the facts as well as the law, any evidence which supports the determination of the Appellate Division would require an affirmance by this court. (Curdo v. City of New York, 275 N. Y. 20, 21-22.)

If in the present case we should entertain the plaintiff’s appeal and, in the event the order of the Appellate Division should be affirmed, the anomalous result thus brought about by the plaintiff’s stipulation for judgment absolute would be an annulment of her marriage to the defendant based upon a record which, as it comes to us, contains no findings which sustain the defendant’s charge of fraudulent representation by the plaintiff. Such a result would amount to the termination by consent of the marital status between the parties without a finding of the. fraudulent representations asserted by the defendant as a basis for the annulment, or a full consideration of the evidence in support thereof. It would be opposed to a strong public policy which favors the continuity of marriage and which finds expression in statutes and in case law. “ The parties by themselves [are] without power permanently to fix or to alter their marital status or the scope of the obligations arising from the marriage relationship by consent, stipulation or their own conduct (Stevens v. Stevens, 273 N. Y. 157, 159; Goldman v. Goldman, 282 N. Y. 296, 299).” (Querze v. Querze, 290 N. Y. 13, 18, and see Domestic Relations Law, § 51; Civ. Prac. Act, §§ 1143, 1150; Rules Civ. Prac., rule 283; Fearon v. Treanor, 272 N. Y. 268, 271-273.)

Our conclusion is that a result so opposed to public policy was never intended by the framers of the Constitution or by the Legislature to apply to actions for divorce or for the annulment of a marriage.- (Friedman v. Friedman, 240 N. Y. 608, 609-610; and see People ex rel. Judson v. Thacher, 55 N. Y. 525, 536-537; Matter of Decker v. Story, 259 N. Y. 580.)

The appeal should be dismissed, without costs.

Lotjghran, Ch. J., Conway, Desmond, Thacher, Dye and Medalie, JJ., concur.

Appeal dismissed.