author: Fuld, J. Lewis, J.

text:
    Giacinto Teresta, Appellant, v. City of New York, Respondent.
    Argued June 4, 1952;
    decided October 16, 1952.

      Samuel J. Moskowits and Abraham TJmanov for appellant.
    I. Delivery by the mailman constituted actual personal service of the notice of claim sufficient to comply with section 50-e of the General Municipal Law. (Administrative Code of City of New York, § 394a-1.0; Civ. Prac. Act, § 220; Rules Civ. Prac., rule 53; Matter of Drake v. Comptroller of City of N. Y., 278 App. Div. 317; Wiegand v. City of New York, 273 App. Div. 1025; Tilton v. City of New York, N. Y. L. J., June 25, 1948, p. 2395, col. 3; Matter of Figueroa v. City of New York, 279 App. Div. 771; Tenth Annual Report of N. Y. Judicial Council, 1944, pp. 44, 263-296; Matter of Park East Land Corp. v. Finkelstein, 299 N. Y. 70.) II. Assuming, arguendo, that service of the” notice of claim was defective, defendant had power to waive the provisions of subdivision 3 of section 50-e, and by its actions did so waive, and it should be estopped from setting up the defense that the service was improper because made by ordinary mail. (Purdy v. City of New York, 193 N. Y. 521; Lewis v. City of New York, 278 N. Y. 517; Ponsrok v. City of Yonkers, 254 N. Y. 91; Forsyth v. City of Oswego, 191 N. Y. 441; Winter v. City of Niagara Falls, 190 N. Y. 198; Meiner v. City of New York, 262 App. Div. 970; Hoffman House v. Foote, 172 N. Y. 348; Reilley v. City of New York, 298 N. Y. 710; Reining v. City of Buffalo, 102 N. Y. 308; Di Bartolo v. City of New York, 293 N. Y. 114; Boland v. City of Niagara Falls, 178 Misc. 125.)

      Denis M. Hurley, Corporation Counsel (Samuel D. Johnson and Seymour B. Quel of counsel), for respondent.
    Service of the notice of claim by ordinary mail was not a compliance with the statutory mandate for personal service or service by registered mail. Subsequent examination of claimant did not constitute a waiver and, accordingly, dismissal of the complaint was proper. (Lewis v. City of New York, 278 N. Y. 517; Matter of Brown v. Trustees, Hamptonburg School Dist., 303 N. Y. 484; Curry v. City of Buffalo, 135 N. Y. 366; Winter v. City of Niagara Falls, 190 N. Y. 198; Ponsrok v. City of Yonkers, 254 N. Y. 91; Purdy v. City of New York, 193 N. Y. 521; Thomann v. City of Rochester, 256 N. Y. 165; Rogers v. Village of Port Chester, 234 N. Y. 182; Reining v. City of Buffalo, 102 N. Y. 308; Forsyth v. City of Oswego, 191 N. Y. 441.)
   Fuld, J.

Plaintiff, a laborer over sixty years old, injured when a city-owned trolley in which he was a passenger collided with a truck, went to the Municipal Building in order to make known his claim against the City of New York. He was there given a notice of claim form and also, according to defendant, an instruction sheet stating that the completed form should be sent to the comptroller’s office by registered mail. Well within the sixty-day period then prescribed for service of the notice of claim, plaintiff sent the notice to the comptroller, but by ordinary mail. Despite this irregularity in the form of service — subdivision 3 of section 50-e of the General Municipal Law then provided that the notice was to be delivered “ personally, or by registered mail ’ ’ — the comptroller, before the sixty-day period had elapsed, responded to plaintiff in a letter notifying him to appear for examination. The examination was subsequently held. However, plaintiff’s action thereafter brought against the city has been dismissed upon the ground that his notice of claim had been transmitted by ordinary mail, contrary to the provisions of section 50-e.

Since the city neither returned the notice, nor at any time ' objected to the manner in which it had been served until after the commencement of the trial, the statutory requirement of personal service or notification by registered letter must be deemed to have been fully and effectively waived by the city. Neither legal theory nor public policy stands in the way of a waiver of that requirement, designed as it is solely for the benefit of the city. Subdivision 6 of section 50-e, upon which defendant relies, does not purport to affect the city’s power to waive formal defects relating to the notice of claim, but deals only ivith the power of the courts, independently of such a waiver, to “ correct,” “ supply ” or “ disregard ” such defects. The prime, if not the sole, objective of the notice requirements of such a statute is to assure the city an adequate opportunity to investigate the circumstances surrounding the accident and to explore the merits of the claim Avhile information is still readily available. (See, e.g., Sweeney v. City of New York, 225 N. Y. 271, 273; Purdy v. City of New York, 193 N. Y. 521, 523; Matter of Figueroa v. City of New York, 279 App. Div. 771; see, also, Tenth Annual Report of N. Y. Judicial Council, 1944, pp. 265, 277.) That end is certainly not frustrated by permitting the city to accept timely notification by ordinary mail in lieu of the other methods prescribed by section 50-e.

Instead of returning the regularly mailed notice — which Avould have given plaintiff an opportunity to serve it properly Avell Avithin the statutory period — or simply ignoring it, an executive officer of the city actually informed plaintiff that his notice had been received and then proceeded to hold an examination in connection Avith the claim. Thus, present here, in addition to an unequivocal waiver, are elements of estoppel as well. In Sweeney v. City of New York (supra, 225 N. Y. 271, 273) the court said, Avith respect to a predecessor provision of section 50-e, that the statute “ is not a trap to catch the unwary or the ignorant.” In reaching our present conclusion, we but reaffirm that view.

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

Lewis, J.

(dissenting). Following injuries which befell the plaintiff, G-iacinto Teresta, Avhile a passenger in a trolley car operated by agents of the City of Nbav York, he Avent personally — without advice of counsel — to various city agencies in an effort to present his claim against the municipality for the injuries he suffered. Finally, at one of the city’s agencies, he was given not only a form to fill in but also an instruction sheet — which, according to the record before us “ * * * specifically, among other things, directed him to serve this claim by registered mail.” Heedless of such instruction the plaintiff chose to serve his claim by “ ordinary mail ”, which manner of service did not conform with the following provisions of subdivision 3 of section 50-e of the General Municipal Law as the statute then read: “ The notice shall be served on the party against whom the claim is made by delivering the notice, or a copy thereof, personally, or by registered mail, to the person, officer, agent, clerk or employee, designated by law as a person to whom a summons in an action in the supreme court issued against such party may be delivered ” (italics supplied).

Although obviously the <£ manner * * * of service ” chosen by the plaintiff did not conform with the requirement of the statute quoted above, it is the view of a majority of the court that when the city failed not only to return the plaintiff’s notice but also failed — until the trial— to object to the manner in which it had been served, and meantime conducted a pretrial examination of the plaintiff, the statutory requirement of service of the claim ££ personally, or by registered mail ” was thereby waived.

Technical though the city’s resistance to this claim may be, it is technical only to an extent clearly warranted by a separate provision of section 50-e id., viz., subdivision 6, which provides in part: ££ * * * a mistake, omission, irregularity or defect made in good faith in the notice of claim required to be served by this section, not pertaining to the manner or time of service thereof, may be corrected, supplied or disregarded, as the case may be, in the discretion of the court, provided it shall appear that the other party was not prejudiced thereby ” (italics supplied).

If the words italicized in the statute last quoted above do not declare the Legislature’s intention thereby to prevent a waiver by a municipality of the ££ manner ” expressly prescribed in subdivision 3 of section 50-e id. for service by a claimant of his notice of claim, one is at loss to know what could better record that intent.

Indeed, on one occasion when this court dealt with a similar problem Chief Judge Cajrdozo wrote — The Legislature has said that a particular form of notice, conveyed with particular details to particular public officers, shall b3 a prerequisite to the right to sue. The courts are without power to substitute something else. ’’ (Thomann v. City of Rochester, 256 N. Y. 165, 172.)

Nor is the plaintiff’s position reinforced if, as he claims, the city was not prejudiced by the irregular manner he chose to serve his claim. Upon that phase of the case the statement by Judge Pound writing for the court in Ponsrok v. City of Yonkers (254 N. Y. 91, 95), has peculiar application to the case we now review —1 ‘ The fact that the city has not been prejudiced is immaterial. The court may not exercise a dispensing power based on the principles of abstract justice fitting the particular case. It may only see that the requirements of the law are complied with.” (See, also, Purdy v. City of New York, 193 N. Y. 521, 524-525; 4 Dillon on Municipal Corporations [5th ed.], § 1613, pp. 2814-2817.)

Believing, as I do, that “ A statute must be read and given effect as it is written by the Legislature, not as the court may think it should or would have been written if the Legislature had envisaged all the problems and complications which might arise in the course of its administration ” (Lawrence Constr. Corp. v. State of New York, 293 N. Y. 634, 639; People v. Olah, 300 N. Y. 96, 102), and finding in the statute here involved an expression of legislative intent opposed, in my view, to the decision about to be made herein, I dissent and vote for affirmance.

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

Judgments reversed, etc.

      . The section was subsequently amended (L. 1951, ch. 393) to provide that “if service of such notice be made within the period prescribed by this section, but in a manner not in compliance with the provisions of this subdivision [service by registered mail or personally], such service shall be deemed valid if such notice is actually received by such person, officer, agent, clerk or employee and such party against whom the claim is made shall cause the claimant * * * to be examined in regard to such claim.”


source: Caselaw Access Project

author: Desmond, J.

license: Public Domain

text:
    Lawrence Senecal, an Infant, by John Senecal, His Guardian ad Litem, Appellant, v. James Drollette, Respondent. John Senecal, Appellant, v. James Drollette, Respondent.
    Argued October 8, 1952;
    decided October 23, 1952.

      John P. Judge for appellants.
    The trial court erroneously excluded direct evidence on the issue of the identity of defendant’s car with the accident. (Commonwealth v. Best, 180 Mass. 492; Schwenger v. Gaither, 87 Cal. App. 2d 913; State v. Rainsberger, 74 Iowa 204; Karrigan v. Ninth Ave. R. R. Co., 44 App. Div. 116; Wilbur v. Hubbard, 35 Barb. 303; Collins v. New York Central & H. R. R. R. Co., 109 N. Y. 243; People v. Roach, 215 N. Y. 592; People v. Jones, 257 App. Div. 5; Hackett v. Boston, C. & N. R. R., 35 N. H. 390; Commonwealth v. Dorsey, 103 Mass. 412; Schwartz v. Wood, 67 Hun 648; Beers v. West Side R. R. Co., 101 App. Div. 308.)

      William J. Herron for respondent.
    I. The trial court made no errors in excluding or striking out the testimony objected to. (Slocovich v. Orient Mut. Ins. Co., 108 N. Y. 56; Dougherty v. Milliken, 163 N. Y. 527; Matter of Herrmann, 75 Misc. 599, 155 App. Div. 923; Gray v. Brooklyn Heights R. R. Co., 175 N. Y. 448; Messner v. People, 45 N. Y. 1; Pearce v. Stace, 207 N. Y. 506; People v. Corey, 148 N. Y. 476; Bedell v. Long Island R. R. Co., 44 N. Y. 367; Grattan v. Metropolitan Life Ins. Co., 80 N. Y. 281; People v. Van Gaasbeck, 189 N. Y. 408.) II. No substantial right of either of plaintiffs was affected by the rulings of the trial court. (Scanlan v. Temple, 297 N. Y. 516.)
   Desmond, J.

The infant plaintiff, crossing a rural highway a.t night, was struck and injured by an automobile which, the complaint alleged, had been negligently driven by defendant. Defendant denied the occurrence but, in his testimony, admitted that his car had, at about the time and place of plaintiff’s injury, come into collision with some object. Plaintiff’s first burden of proof, therefore, was to identify the automobile with which he had come into contact. Plaintiff himself, a ten-year-old boy, was unable to make that identification, but, as his witnesses, he produced two twelve-year-old boy companions. Bach of those witnesses was questioned, preliminarily, by the Trial Justice as to his knowledge of the nature of an oath, etc., and, after satisfactorily showing such knowledge, each was sworn. However, each boy was, by later rulings of the Trial Justice, prevented from testifying effectively.

Witness Raseoe, after stating that he had seen an automobile hit plaintiff, was shown an admitted photograph of defendant’s car and was then asked whether it is the car or not.” An objection was made and sustained and an exception taken, solely on the ground that “ the age of the boy disqualifies him for such testimony.” Rascoe was in an upper grade of elementary school, and there is nothing in the record to suggest that he lacked the usual mental competence. We think that the ruling which refused, on the ground of age, to let him answer, was clear error. Other witnesses were permitted, during the trial, to look at the same photograph, and to testify that it was of a car shown by defendant, as his, to those witnesses soon after the accident, but Rascoe was not allowed to say it was the automobile which Rascoe had seen striking plaintiff (see as to testimony on identity and correspondence, 32 C. J. S., Evidence, §§ 504, 515).

Rascoe, at another point in his examination, was asked as to the speed of the car which hit plaintiff. An objection was made and sustained as to that question, too, on the same ground (that he was disqualified because of age). That, too, was error (see Marcucci v. Bird, 275 App. Div. 127, 129; Mahoney v. Gooch, 246 Mass. 567, 569; Tracy, Handbook of the Law of Evidence, p. 204). The witness had sworn that he often rode in automobiles and watched their speedometers, and, indeed, there was no objection to this, or to the other disallowed question asked of Rascoe, on the ground of lack of foundation ”, or anything of that sort.

Plaintiff’s other witness, as to whom objections were sustained and answers stricken, was Howard Collins, a twelve-year-old seventh grade student. Collins told the jury that he “ got a glance at it just before it hit him ” and, at another place in his examination, swore he had a good look at the grille, body and back of the car. In answer to another question, he said it was a Thirty-six Ford.” An objection was made and sustained, without any statement of grounds. Then, on further questioning, Collins testified that his own family had an automobile of a certain make and year, and he listed the manufacturers’ names and years of cars owned by some of his relatives and friends. He was asked by plaintiff’s counsel whether he had an opportunity to know what kind of automobile it was that had struck the plaintiff. He said he did, and then was asked again what kind of car it was, and again, without statement of grounds, an objection was made and sustained. Thus, this witness, who was apparently qualified by age, experience and intelligence (although his opportunity to observe in this instance was brief and limited) was forbidden to state that the vehicle which struck plaintiff was a 1936 Ford automobile.

Automobiles are so numerous, so many people have large experience with them, and so many (especially, it may be said,, growing boys) interest themselves in the special characteristics of various models of cars, that it is unreal to say that only a particularly qualified expert can distinguish a “ 1936 Ford (see, on this general subject, Richardson on Evidence [7th ed.], §§ 524, 526; 7 Wigmore on Evidence [3d ed.], § 1924; Jacobs on Civil Trial Evidence [2d ed.], pp. 170-173; Gray v. Brooklyn Heights R. R. Co., 175 N. Y. 448, 453; People v. Roach, 215 N. Y. 592, 604, 605). Actually, such is not opinion evidence at all, but statement from observation of existing physical fact (Beers v. West Side R. R. Co., 101 App. Div. 308, 311; People v. Deacons, 109 N. Y. 374, 382). As to identification, from a photograph of an object previously seen, that, too, is fact evidence, subject to preliminary examination by the opposing party as to the ability of the witness to observe, know and remember, and subject, too, to cross-examination and argument to the jury as to reliability, but evidence of asserted fact, nonetheless (see People v. Spinello, 303 N. Y. 193, 203).

The jury here found for defendant. If this evidence had been given, it might not have changed the result. But that fact we do not know. It was material and proper evidence, and we cannot say that no harm resulted * * * from its exclusion ” (Collins v. New York Central & H. R. R. R. Co., 109 N. Y. 243, 249).

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

Lotjghean, Ch. J., Lewis, Conway, Dye, Fuld and Feoessel, JJ., concur.

Judgments reversed, etc.


author: Fboessel, J.

text:
    Antonio Maltese, Appellant, v. David Dubinsky, Individually and as President-Secretary of International Ladies’ Garment Workers’ Union, et al., Respondents.
    Argued October 14, 1952;
    decided October 24, 1952.

      George M. Aronwald for appellant.
    I. The provisions of the International constitution and the method relied upon by defendants in effecting the ouster of plaintiff from the office to which he was duly elected must be condemned and declared void as violative of public policy and the law of the land. (Polin v. Kaplan, 257 N. Y. 277; People ex rel. Johnson v. New York Produce Exch., 149 N. Y. 401; Irwin v. Possehl, 143 Misc. 855; Gilmore v. Palmer, 109 Misc. 552; Matter of Singer [State Laundry Co.], 189 Misc. 150, 273 App. Div. 755.) II. Labor unions are obliged to shape their internal laws in keeping with the laws and spirit of the greater society of which they are a part. (Blek v. Wilson, 145 Misc. 373; Jackson v. White, 62 S. E. 766 [S. C.]; Miller v. Board of Supervisors of Sacramento Co., 25 Cal. 93; State ex rel. v. Ladeen, 104 Minn. 252; Dolphin v. Mayor & Council of Town of Kearney, 116 N. J. L. 58.) III. A union constitution which evades a provision providing for notice of charges and fair trial for one against whom disciplinary proceedings are instituted is violative of the law of the land. (People ex rel. Johnson v. New York Produce Exch., 149 N. Y. 401; People ex rel. Holmstrom v. Independent Dock Builders’ Benevolent Union, 164 App. Div. 267; Blek v. Kirkman, 148 Misc. 522; Gilmore v. Palmer, 109 Misc. 552.) IV. A provision of a union constitution which constitutes a contract between the member and the union should not be enforced if it violates elementary contract law. (United States v. Addyston Pipe & Steel Co., 85 F. 271; Meers v. Munsch-Protzmann Co., 217 App. Div. 541; Bintz v. City of Hornell, 295 N. Y. 628; Cocca v. County of Erie, 182 Misc. 1082.) V. Equity will intervene to protect an elected officer of an unincorporated association from illegal removal from office. (Bricklayers’, Plasterers’ & Stone Masons’ Union

      v. Bowen, 198 App. Div. 967; Sullivan v. McFetridge, 183 Misc. 106, 268 App. Div. 962.)

      Emil Schlesinger and Max Bloom for respondents.
    I. Plaintiff was not removed from office and no disciplinary action against him was involved. II. The constitutions of International and joint board and the rules and regulations of Local 48 constitute a contract between them and plaintiff. Plaintiff’s rights are fixed and his obligations determined thereunder. (Gem Music Corp. v. Taylor, 294 N. Y. 34; Alexion v. Hollingsworth, 289 N. Y. 91; Nilan v. Colleran, 283 N. Y. 84; O’Keefe v. Local 463 UAP, 277 N. Y. 300; Polin v. Kaplan, 257 N. Y. 277; Burt v. Oneida Community, 137 N. Y. 346; Matter of Pratt v. Rudisule, 249 App. Div. 305.) III. The provisions of section 15 of article 5 of the constitution of International do not contravene public policy or the law of the land. In accepting plaintiff’s resignation the general executive board of International validly terminated his term of office. (Labor Board v. Jones & Laughlin, 301 U. S. 1; Federation of Labor v. McAdory, 246 Ala. 1, 323 U. S. 703, 325 U. S. 450; W. F. Constr. Corp. v. Hanson, 250 App. Div. 727; Norfolk & W. Ry. Co. v. Harris, 260 Ky. 132; Aulich v. Craigmyle, 248 Ky. 676; Attig v. International Brotherhood of Teamsters, 231 Iowa 1; Dennis v. United States, 341 U. S. 494; Hirabayashi v. United States, 320 U. S. 81; Selective Draft Law Cases, 245 U. S. 366; Association for Protection of Adirondacks v. MacDonald, 253 N. Y. 234; American Historical Soc. v. Glenn, 248 N. Y. 445; People ex rel. Boyle v. Cruise, 197 App. Div. 705.) IV. By his compliance for a period of fifteen years with section 15 of article 5 of International’s constitution, by his failure to seek the repeal thereof as a delegate to International’s 1947 and 1950 conventions, by his vote in support of the 1947 and 1950 amendments, plaintiff has fully concurred in the aforesaid provision and has waived any right to question and is estopped from questioning its validity. (Matter of George v. Holstein-Friesian Assn., 238 N. Y. 513; Matter of Flushing Hosp. & Dispensary, 288 N. Y. 125.) V. Plaintiff’s membership in International and in Local 48 is not involved in this case. At the time of the commencement of this action he was still a member in good standing therein. No property rights of plaintiff are involved. (Peabody v. Kaufman, 270 App. Div. 1019, 296 N. Y. 796; O’Keefe v. Local 463 UAP, 277 N. Y. 300; Blek v. Kirkman, 148 Misc. 522; Matter of Balter v. Empire State Motion Picture Operators Union, 167 Misc. 430; Thompson v. Wallin, 301 N. Y. 476; Adler v. Board of Education, 342 U. S. 485; Canteline v. McClellan, 282 N. Y. 166; Burke v. Kern, 287 N. Y. 203; Matter of Sweeney v. Mischler, 132 Misc. 13; Field v. Giegengack, 73 F. 2d 945; Wetzel v. McNutt, 4 F. Supp. 233; State v. District Co., 205 P. 955 [Mont.].) VI. Neither the amended complaint of plaintiff nor the affidavit submitted in opposition to the motion for summary judgment establishes the existence of any cause of action against any of defendants. (Institute for Public Service v. Winter, 233 App. Div. 1; Gulf Oil Corp. v. Smallman, 185 Misc. 409, 270 App. Div. 129; Martin v. Curran, 303 N. Y. 276; People ex rel. Solomon v. Brotherhood of Painters, 218 N. Y. 115; Schouten v. Alpine, 215 N. Y. 225; McCabe v. Goodfellow, 133 N. Y. 89; Terner v. Glickstein & Terner, 283 N. Y. 299; Casey v. Nye Odorless Incinerator Corp., 238 App. Div. 242; Joseph v. Raff, 82 App. Div. 47, 176 N. Y. 611.)
   Fboessel, J.

Plaintiff brought this action for a permanent injunction against his removal from the office of business agent of Local Union 48, International Ladies’ Garment Workers’ Union (hereinafter called International), and for related relief. Defendants thereupon moved for summary judgment dismissing the action on the merits by way of cross motion to plaintiff’s motion for a temporary injunction. Summary judgment was granted, except as to plaintiff’s claim for twenty-five days’ salary, as to which claim the action was severed; the Appellate Division has unanimously affirmed.

The sole issue of law upon this appeal is the validity of section 15 of article 5 of the constitution and by-laws of International, which, so far as material, provides as follows: ‘1 All candidates for a paid office or position in an [sic] L. U. [Local Union] shall execute and deposit with the G. S. T. [General Secretary-Treasurer] of the I.L.G.W.U. and the L. U., prior to their installation in office or such position, duplicate resignations in blank. Such resignations shall become effective and operative whenever accepted by a two-thirds vote of the entire membership of the Executive Board of the L. U., or by a two-thirds vote of the entire membership of the G. E. B. [General Executive Board]. * * * The term of office of all officers and the tenure of position of executive board members are hereby limited accordingly.”

This section was originally incorporated in International’s constitution by the unanimous vote of the delegates to its 1940 convention. Delegates are primarily representatives of the local unions, and to a much lesser extent of the joint boards and district councils. Plaintiff has been a delegate to both the 1947 and 1950 conventions. On neither occasion did he attempt to offer any amendment to that section nor contest its validity, but indeed voted in favor of a 1950 amendment making the section applicable to appointive as well as elective officers.

International is an unincorporated association — a labor union — with a total membership of 436,000 in 491 local unions which it has chartered in the United States and Canada. Plaintiff is a member of Local 48 (Italian Cloak, Suit, Skirt and Reefer Makers’ Union). In February, 1950, after having served in a similar capacity for some years prior thereto, plaintiff was again elected business agent of said local. Upon said election he executed, pursuant to section 15 of article 5 of International’s constitution, his resignation in duplicate, one of which was filed with Local 48 and the other with International, to take effect immediately upon the acceptance thereof. On each of the occasions that plaintiff has been elected business agent since 1940, he did likewise, never protesting nor even questioning the practice.

In June, 1950, respondent Feinberg, vice-president of International and general manager of the Joint Board of Cloak, Suit, Skirt and Reefer Makers’ Union, which had jurisdiction over Local 48 and seven other locals, asked plaintiff to request either Local 48 or the general executive board to make his resignation effective. Plaintiff refused to do so. On August 23,1950, respondent' Dubinsky, president and general secretary-treasurer of International, presented the matter “ fully and accurately ” to the general executive board. The board, by a 21-0 vote (two members [one of whom has submitted a supporting affidavit] abstaining from voting and one member absent), accepted plaintiff’s resignation. We are not informed of the evidently confidential basis for the board’s acceptance of said resignation. We are merely told that, “As a result of his [Feinberg’s] investigations and on information and proof which he received from the most unimpeachable sources and which were irrebutable, he became convinced that Maltese’s continuance as Business Agent at the Joint Board should come to an end.”

Feinberg stated that he “ was able to obtain this information and proof only after giving a solemn pledge, upon my honor, to my informants and a devout member of the clergy, that I would not reveal the source nor the details of the information received to anyone except the President of the International because of the fear that my informants had of serious recriminations. ’ ’

Plaintiff asserts that his removal from office was illegal, contending,- in substance, that section 15 of article 5 is void as violative of public policy, the law of the land and contract law. At the outset it should be emphasized that we are here dealing with a situation where a union official has executed a resignation, after his election, in accordance with the express provisions of the governing constitution. No effort is made to affect plaintiff’s membership in his local, where he remains in good standing, nor is there any attempt to deprive him of any right to secure employment in the industry, or to participate in welfare benefits or in the general funds of his local.

We do not seem to have passed upon the precise issue here presented. We have held that a union, under its constitution and by-laws, “ has power and right to take action reasonably calculated to advance' its objects, even though such action involves interference with the employment of a member who has committed no wrong and against whom no charges have been preferred ” (O’Keefe v. Local 463 of Assn. of Plumbers, 277 N. Y. 300, 307-308), and that the “ constitution and by-laws of an incorporated association express the terms of a contract which define the privileges secured and the duties assumed by those who have become members ” (Polin v. Kaplan, 257 N. Y. 277, 281, 282; Nilan v. Colleran, 283 N. Y. 84, 89). In the latter case, we also point out (p. 91) that, where “it has not been shown that the action of the executive board was taken in bad faith and with malice, plaintiff may not succeed.”

The execution of these duplicate resignations was in strict accord with the express provision of section 15 of article 5. In the absence of a showing that such provision is in some way violative of public policy — no statute having been cited as a bar — plaintiff is bound by the constitution which defines the terms upon which the office of business agent may be held. Reading the provision in question together with the entire constitution as its background, we do not think it can be said that there is in this case a violation of public policy, even though we should question its wisdom and propriety (Cuppy v. Stollwerck Bros., 216 N. Y. 591; Mimmack v. United States, 97 U. S. 426). The provision is tantamount to reserving the right to terminate a union office at will, by consent of both International and local unions.

Business agents are elected by their local unions, but according to the provisions of International’s constitution, the joint board’s constitution, and the local’s own rules and regulations, they work out of and exclusively for the joint board with which they are affiliated, and the board’s directors assign their duties. Business agents are delegates to the international convention. Thus the local union does not have exclusive control over its business agents, and they become an important part of the parent and intermediate bodies. Indeed, it is asserted that locals affiliated with joint boards do not have the right or authority to enter into any labor agreement on behalf of their members with any employer in the industry.

We are told that this is but the second time that section 15 of article 5 has been invoked since 1940; thus there has been no abuse of this provision, and the trial court has not found bad faith or malice. Indeed, plaintiff has conceded that 1‘ there is no gainsaying the integrity of the defendants ”, and agrees with Dubinsky’s assertion that Feinberg is a person of the highest integrity and of the greatest good will.”

Appellant’s argument that the electorate is disenfranchised by the provision challenged must fail, since it was adopted pursuant to the popular representative vote of the local unions, including Local 48, who entrusted this power to the general executive board and their own local executive boards, and who maintained the right at all events to elect the successors to any officers removed.

The provision of the constitution dealing with trials and appeals does not apply to the acceptance of a resignation by an officer, but it does apply to members generally, and to those situations where a resignation has not been submitted or where, if submitted, it has not been accepted by a two-thirds vote of the general executive board or the local executive board.

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

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

Judgment affirmed.


text:
    Mary Jane L. Owen, Appellant, v. Rochester-Penfield Bus Company, Inc., Respondent.
    Argued October 7, 1952;
    decided October 24, 1952.

      Asbury H. Harpending for appellant.
    I. There is ample proof of negligence in the record to support the jury’s finding that defendant violated its duty to plaintiff as a passenger as such duty was properly defined by the trial court. (Imbrey v. Prudential Ins. Co., 286 N. Y. 434; Kulch v. Kulch, 271 App. Div. 840; Walldorf v. Central Greyhound Lines, 256 App. Div. 854, 280 N. Y. 725.) II. The negligence of defendant having been established under the law of the case and to the satisfaction of the jury, defendant is liable to plaintiff for the injuries she sustained and the verdict is supported by the evidence. (Davis v. New York Central R. R. Co., 163 Misc. 710; Campbell v. Pullman Co., 182 App. Div. 931; Killeen v. U. S. Lines Operations, 234 App. Div. 789; Poplar v. Bourjois, Inc., 298 N. Y. 62; McCahill v. New York Transp. Co., 201 N. Y. 221; Lang v. Stadium Purchasing Corp., 216 App. Div. 558.)

      Austin W. Erwin and Austin W. Erwin, Jr., for respondent.
    I. There is no proof in the record of any negligence upon the part of defendant. (Churchill v. United Fruit Co., 294 F. 400;
      Laitenburger v. State of New York, 190 Misc. 633; Lane v. City of Buffalo, 232 App. Div. 334; Trapp v. McClellan, 68 App. Div. 362; Kingsland v. Erie Co. Agric. Soc., 298 N. Y. 409; Nuss v. State of New York, 195 Misc. 38; Radin v. State of New York, 192 Misc. 247; Payne v. City of New York, 277 N. Y. 393; Palsgraf v. Long Island R. R. Co., 248 N. Y. 339.) II. Recovery is allowed in cases of this type only where a dangerous condition due to the weather is coupled with actual negligence on the part of the carrier. (Atlantic Coast Line v. Powell, 127 Ga. 805; Humphrey v. Stokes Bus Line, 199 S. C. 132; Ziccolillo v. Oregon Short Line R. Co., 53 Utah 39; Southern Pacific Co. v. Bunting, 54 Ariz. 180.)
   Fboessel, J.

A jury has awarded plaintiff the sum of $5,000 by way of damages to compensate her for having suffered a severe frostbite of both feet. She claims these injuries were sustained as the result of defendant’s negligence in failing properly to heat its bus while she was a passenger. The Appellate Division unanimously reversed the judgment on the law and facts and dismissed the complaint. In this state of the record, plaintiff is entitled to the benefit of every favorable inference which can reasonably be drawn from facts proven (De Wald v. Seidenberg, 297 N. Y. 335, 336, 337; Betzag v. Gulf Oil Corp., 298 N. Y. 358). Thus viewed, the jury had the right to find the following facts:

Plaintiff, then eighteen years of age, was a student at the Rochester Institute of Technology. She returned to her parents’ home in the town of Tyrone, New York, where she remained over the 1946 Thanksgiving holidays. On Sunday evening, December 1st, she, together with her sister and brother-in-law, were driven to Bath, New York, in a heated car to catch a bus for Rochester leaving at 6:10 p.m. The bus was very cold ”, “ extremely cold “ awfully cold ”, not only for plaintiff but for her sister and brother-in-law as well, and for other passengers, who complained to the bus driver; he replied that the heater was out of order. In the course of the trip, he stopped to investigate an accident, during which time he left the bus door open for fifteen minutes. Plaintiff’s feet became numb during the trip and, after four hours of such exposure, she discovered on returning to her dormitory in Rochester that she had frozen feet. The jury also had the right to find, from evidence given by one Williams in charge of the United States Weather Bureau, that the temperature in Rochester during this period had descended to as low as 17°, and that it must have been freezing temperature or below in the bus in the light of a physician’s testimony that no one could get frozen feet above 32°.

The evidence also disclosed that plaintiff was born with a heart condition that affected her circulatory system in such a manner as to make her more susceptible to frostbite than the average person, though both plaintiff and her mother stated that they did not know of this susceptibility. Plaintiff had never had frostbite before. Her mother stated that they had ignored the heart condition; on medical advice she reared plaintiff with the other children; and plaintiff knew nothing whatever about it.

The Appellate Division took the view that as a matter of law defendant was not liable, inasmuch as plaintiff’s poor circulation, attributable to the heart condition, rendered her more susceptible to frostbite than a person in normal health, and therefore her injuries did not come within the realm of reasonable foreseeability.

We do not agree with this view here. The trial court told the jury that it was the duty of defendant to furnish reasonable heat in its bus, and in that regard charged subdivision 1 of section 60-a of the Public Service Law, which reads in part as follows: ‘ Every omnibus corporation shall furnish and provide with respect thereto, such services and facilities as shall be safe and adequate and in all respects just and reasonable.” Under subdivision 4 of section 344-a of the Civil Practice Act we may take judicial notice of the then effective Public Service Commission rule adopted pursuant to subdivision 14 of section 61 of the Public Service Law: 23. Heating: Each omnibus shall be heated when reasonably required for the comfort and safety of passengers.”

After pointing up the dispute between the parties and reviewing the evidence, the court further charged that the “ test here is * * * whether or not this bus company failed to furnish reasonable heat to the plaintiff or whether of not it did.” Thus she was not deemed an abnormal person, and the court made no reference thereto in its charge. No requests were made or exceptions taken to this or any other part of the court’s charge by either counsel, each one stating: “No requests or exceptions.” Under these circumstances, the charge became the law of the case (Imbrey v. Prudential Ins. Co., 286 N. Y. 434, 440).

Thus, without objection by either side, the only question presented to the jury, besides the issue of contributory negligence and damage, was whether defendant was negligent in failing to furnish reasonable heat, and if so whether that caused plaintiff’s injuries. It is common knowledge that many people are subject to low blood pressure and poor circulation, and certainly this is foreseeable by a common carrier. We have held that “ a defendant is chargeable for all the harm and suffering which his negligent act brought on even though the plaintiff’s injuries were aggravated by his own predisposition or weakness [citing cases].” (Poplar v. Bourjois, Inc., 298 N. Y. 62, 67-68.) The jury here had the right to find upon the above-recited facts that defendant failed to furnish reasonable heat to plaintiff, in consequence of which she suffered frostbite.

In the circumstances disclosed, we cannot say as a matter of law, as did the Appellate Division, that plaintiff’s injuries did not come within the realm of reasonable foreseeability.

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

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

Judgments reversed, etc.


text:
    In the Matter of the Claim of Elizabeth M. Lewis, Respondent, against Knappen Tippetts Abbett Engineering Co. et al., Appellants. Workmen’s Compensation Board, Respondent.
    Argued October 16, 1952;
    decided October 24, 1952.

      William L. Shumate and Edward J. Maniver for appellants.
    I. The New York State Workmen’s Compensation Board has no jurisdiction. (Matter of Cameron v. Ellis Constr. Co., 252 N. Y. 394; Matter of Zeltoski v. Osborne Drilling Corp., 264 N. Y. 496;
      Matter of Copeland v. Foundation Co., 256 N. Y. 568.) II. The proof shows affirmatively and conclusively that deceased’s journey from Tel Aviv to Jerusalem was entirely unrelated to his employment, and was voluntarily undertaken by deceased purely for his own pleasure and gratification. Consequently, it cannot fairly be said that the injuries resulting in his death arose out of and in the course of his employment. (Matter of Tushinsky v. National Broadcasting Co., 265 App. Div. 301, 292 N. Y. 595; Matter of Polski v. U. S. O. Camp Shows, 272 App. Div. 1094.)

      Nathaniel L. Goldstein, Attorney-General (Gilbert M. Landy, Wendell P. Brown and Roy Wiedersmn of counsel), for Workmen’s Compensation Board, respondent.
    I. The New York State Workmen’s Compensation Board has jurisdiction of the claim. (Matter of Vatouios v. Markakis, 273 App. Div. 832, 298 N. Y. 733; Matter of Wagoner v. Brown Mfg. Co., 274 N. Y. 593; Matter of Roth v. Horn Co., 287 N. Y. 545; Matter of Klein v. Stoller & Cook Co., 220 N. Y. 670; Matter of Post v. Burger & Gohlke, 216 N. Y. 544; Matter of Hawco v. Neill Constructors, 275 App. Div. 878; Matter of Fitzpatrick v. Blackall & Baldwin Co., 220 N. Y. 671; Matter of Flinn v. Remington Rand, 277 N. Y. 641; Matter of Tallman v. Colonial Air Transport, 259 N. Y. 512; Matter of Baduski v. Gumpert Co., 277 App. Div. 591, 302 N. Y. 702; Matter of Smith v. Aerovane Utilities Corp., 259 N. Y. 126.) II. Decedent’s death arose out of and in the course of his employment; (Matter of Tushinsky v. National Broadcasting Co., 265 App. Div. 301, 292 N. Y. 595; Matter of Lyons v. U. S. O. Camp Shows, 298 N. Y. 897; Matter of Scott v. U. S. O. Camp Shows, 298 N. Y. 896; Matter of Polski v. U. S. O. Camp Shows, 272 App. Div. 1094; Block v. Camp Shows, 272 App. Div. 980; Matter of Lepow v. Lepow Knitting Mills, 288 N. Y. 377; Matter of Duffy v. Levine, 275 App. Div. 735; Matter of Bachela v. U. S. O. Camp Shows, 275 App. Div. 880; Matter of De Santis v. U. S. O. Camp Shows, 275 App. Div. 880; Matter of Motto v. Cosmopolitan Tourist Co., 278 App Div. 597; Matter of Brown v. United Services for Air, 298 N. Y. 901.)
   Desmond, J.

Workmen’s compensation was awarded here because of the death of John L. Lewis, who, on September 22, 1948, while traveling with or in a United Nations convoy from Tel Aviv to Jerusalem in Israel, was shot and killed by unidentified Arabs in military uniform, who attacked the convoy. The material facts are undisputed. Lewis, ah engineer, had been in Israel for about a month working for this employer as a railroad expert, advising the Israeli Government with respect to its plan to relocate, nearer the Mediterranean coast, the railroad line from Haifa to Tel Aviv in Israel. At the time of the shooting a truce was in effect between the Israeli and Arab forces, and, while there had been some sniping, or irregular warfare, in the general area, there was proof that United Nations convoys had been running regularly between Tel Aviv and Jerusalem, for some time. Also, there was testimony, given by another employee of this same employer, that there had been no outbreaks of violence, on the road Lewis was traveling when killed, for about two weeks prior to this occurrence. Lewis had been hired by this employer in April, 1948, in New York City, where the employer had its headquarters, its other offices being located in Philadelphia, San Francisco, Miami, Argentina, Greece and Tel Aviv. All of the employees, including Lewis, were at all times (except as to those in the San Francisco branch) paid from, and carried on the payroll of, the New York office, their activities were controlled and directed from that office, and they were considered as working out of that office. When first hired by this employer, Lewis was put to work with other employees in the making of a survey of the railroads at Philadelphia, of which city Lewis was a resident. After Lewis had been working in Philadelphia for about four months, he, at a conference in his employer’s New York City office, was assigned to work for the employer on the engineering job in Israel. His instructions, oral and written, were given to him in New York City, and he was there given a round-trip airplane ticket from New York to Israel, besides cash for other traveling expenses. In Israel he worked with, but not for, other employees of this employer, and the arrangement was that he, Lewis, himself, would write his reports to the New York office, and take back to New York with him reports of the work done in Israel. At the time Lewis was shot, he had nearly completed his work in Israel and was getting ready to go back to New York. However, on September 5, 1948, seventeen days before the shooting, he had, at Tel Aviv, received a cablegram from the New York office directing him to stop off at Athens on his way home to check on the possibilities of some work for the employer in connection with a hydroelectric project in Greece.

The board, after hearings, made findings of fact and rulings of law in which it held that the death arose out of and in the course of his employment, that at the time Lewis was not violating any orders or instructions of his employer, that he was hired in New York, paid his wages there and received his orders from the New York office, and that the work he was doing in Israel and the trip he was taking at the time of his death were incidental to his New York work, which work was transitory and not conducted at a fixed place outside New York City. On appeal, Appellate Division, Third Department, affirmed, the Presiding Justice dissenting. On the appeal here, the carrier and employer advance two argumentsfirst, that this was not a New York employment, and second, that the journey during which decedent was shot was not related to his employment but voluntarily undertaken by decedent for his own pleasure, in an area of danger. It was on the second of those grounds, only, that the Presiding Justice dissented.

First, let us consider whether this was a New York employment. The first of many cases in this court on this general subject was Matter of Post v. Burger & Gohlke (216 N. Y. 544), where it was held that New York State workmen’s compensation could be awarded for accidents outside the State, and that, in general, such compensation should be awarded when a New York State employer has sent his employee into another State to work, but under the employer’s direction and control. The later cases cover every conceivable set of circumstances, and in the great majority of them we affirmed the awards when there was factual support for a conclusion that the employment was in reality a New York employment. In Matter of Vatouios v. Markakis (298 N. Y. 733), for instance, there were present, as factors going to show a New York State employment the following: (1) hiring in New York; (2) office of employer in New York; (3) understanding that employee is to return to New York after out-of-State jobs, and (4) payment of out-of-State expenses by the employer. All those elements are present here.

Of course, there is another line of cases, of which Matter of Cameron v. Ellis Constr. Co. (252 N. Y. 394) is one of the best known, which say that, when the hiring is for work at a fixed location outside New York State, the employment is located outside the State. The latest such decision is Matter of Cradduck v. Hallen Co. (304 N. Y. 240). There the facts were quite unusual, since the claimant had been working for a Pennsylvania employer when the latter agreed with a New York corporation to act as the employer’s field manager in various States, whereupon the claimant worked under the direction of the field manager in New York State and then in Indiana where he was injured. The supervision of claimant Cradduck was by representatives of both corporations. We held that his -was not a New York State employment, our principal reason being that claimant “ had been hired to work upon a construction job in Indiana until his part in that job was finished. ’ ’ (Pp. 243-244.) Between such cases as Cradduck, where the employment was for a fixed out-of-State location, and others, where the work was done at many locations in and out of the State, there are those, like the present one, where the employer hires a man in New York, and from New York directs activities of the employee at various places outside the State, the employer’s business being such that it had to be done in the field wherever the employer can get jobs. It is true that, when Lewis was first hired, he was not promised work anywhere except on the Philadelphia project but, later on, he was sent to the Israel job, and was from there ordered to stop off in Greece, during all of which time he received his instructions direct from New York City, was paid from the New York City office and considered as being an employee of that office, and was paid expense money while away from New York City including airplane transportation back to New York City. We think there was enough to justify the finding of the board that this was a New York State employment.

Next we come to the argument that this journey from Tel Aviv to Jerusalem was a voluntary one unrelated to the employment and undertaken by decedent for his own pleasure. But the courts have been most reluctant to come to such a conclusion (if indeed, they have ever so come in any reported case) in situations where the employment is far from home, the employee has no fixed hours, excursions to nearby places of interest are available and expected, and where the employment itself exposes claimant, generally, to the risk. Here, Lewis was sent by his employer to a country where there had been warfare for a long time and where an uneasy truce was in effect. The employer knew all about that, but for its own profit sent him there, nevertheless. Of course, when Lewis was shot he was on a sightseeing trip, but the same thing was true in Matter of Lyons v. U. S. O. Camp Shows (298 N. Y. 897), and Matter of Scott v. U. S. O. Camp Shows (298 N. Y. 896). In those cases the actors went from their performances in Germany, on a vacation in France, and were returning to Germany when hurt. Furthermore, in the present case there is testimony by one of the employer’s partners that when the company’s employees were in foreign parts, the employer did not object to reasonable sight-seeing. (See, as to recognized recreational activities in connection with employment, Matter of Piusinski v. Transit Valley Country Club, 283 N. Y. 674; Matter of Motto v. Cosmopolitan Tourist Co., 278 App. Div. 597, motion for leave to appeal denied 302 N. Y. 950, and Matter of Dodge v. Wm. J. Keller, Inc., 304 N. Y. 792.) It is true that, when shot, Lewis was some twenty miles away from any route he would have had to use in direct connection with his work, but that was so in Lyons and Scott (supra). In the famous “ tsetse fly ” case, Matter of Lepow v. Lepow Knitting Mills (288 N. Y. 377), the employee died from an insect bite and there was no proof and no way of knowing whether decedent was at work or engaged in his own private affairs when bitten. Our opinion in the Lepow case points out (p. 380) that “ decedent’s death did not result from encountering a risk commonly to be met by members of the public in the routine of daily life. ’ ’ Another factor present here and considéred significant in some of the cases, is that the work of this employee was such that not only was he still on the payroll with time to kill, waiting passage to Greece (see Matter of Polski v. U. S. O. Camp Shows, 272 App. Div. 1094; Matter of Tushinsky v. National Broadcasting Co., 265 App. Div. 301, appeal dismissed 292 N. Y. 595), but he was subject to call at all times, and, on the day of the shooting, would have been expected to respond -to any requests from the government people in Israel, if such requests had been made (see Matter of De Santis v. U. S. O. Camp Shows, 275 App. Div. 880, motion for leave to appeal denied 299 N. Y. 798).

There is still another, and more general theory of workmen’s compensation law that can be used here, as it was in the early case of Matter of Wickham v. Glenside Woolen Mills (252 N. Y. 11, 12) and expressed thus: “ 1 An accident befalls a man “ in the course of ” his employment if it occurs while he is doing what a man so employed may reasonably do within a time during which he is employed, and at a place where he may reasonably be during that time to do that thing ’ ” (quoted from an English case).

The order should be affirmed, with costs.

Lohghran, Oh. J., Conway and Dye, JJ., concur with Desmond, J.; Lewis, Fuld and Froessel, JJ., dissent in the following memorandum: When the employee was shot and killed in danger-ridden territory, he was in a convoy, at least twenty miles from the locale of his work, engaged upon a personal pleasure trip of his own that had nothing whatsoever to do with his job. If the language of the Workmen’s Compensation Law is to have any reasonable meaning, it may not be said that the injuries to the employed, resulting in his death, arose “ out of and in the course of the employment ” (Workmen’s Compensation Law, § 10). The order of the Appellate Division should be reversed and the claim dismissed.

Order affirmed.


author:
      Dye, J„
      Fuld, J.

text:
    The People of the State of New York, Respondent, v. Camilo Weston Leyra, Appellant.
    Argued May 29, 1952;
    decided October 24, 1952.

      Marry G. Anderson and Frederick W. Scholem for appellant.
    I. The trial court instructed the jury that, as a matter of law, Dr. Helfand, acting for the District Attorney, made a promise to appellant that if he confessed he would not he prosecuted for murder in the first degree. This is the law of the case. The trial court therefore should have directed a verdict of not guilty. (People v. Kurtz, 42 Hun 335; People v. Reilly, 224 N. Y. 90; People v. Walcott, 51 Mich. 612; Commonwealth v. Taylor, 5 Cush. [Mass.] 605; People v. Kennedy, 159 N. Y. 346; People v. Buffom, 214 N. Y. 53; People v. Phillips, 42 N. Y. 200; People v. McMahon, 15 N. Y. 384; People v. Fernandez, 301 N. Y. 302; People v. Esposito, 287 N. Y. 389.) II. The trial court instructed the jury that, as a matter of law, the alleged confession made to Dr. Helfand was the result of mental coercion. This constituted a violation of appellant’s constitutional rights. (Rochin v. California, 342 U. S. 165; People v. Valletutti, 297 N. Y. 226.) III. The trial court properly instructed the jury that the failure of the police promptly to arraign appellant before a magistrate constituted a violation of law. (People v. Mummiani, 258 N. Y. 395; People v. Snyder, 297 N. Y. 81; People v. Alex, 265 N. Y. 192; People v. Valletutti, 297 N. Y. 226.) IV. It was reversible error for the trial court to instruct the jury that they could separately consider the alleged confessions made to Captain Meenahan, Assistant District Attorneys Andreozzi and Gitlin and the witness Herrschaft, and if they found that such confessions were not infected by the confession made to Dr. Helfand, the jury could render a verdict of guilty upon the testimony of these witnesses. V. It was a violation of appellant’s said constitutional rights to permit Dr. Helfand to testify as to what was said to him by appellant with respect to the commission of the crime. (People v. Nitzberg, 289 N. Y. 523; People ex rel. Sloane v. Lawes, 255 N. Y. 112; People v. Palmer, 109 N. Y. 413; People v. Ferola, 215 N. Y. 285; People v. Cummins, 153 App. Div. 93, 209 N. Y. 283.) VI. It was reversible error for the trial court to compel appellant to testify against himself. (People v. Ferola, 215 N. Y. 285; People v. Cummins, 153 App. Div. 93, 209 N. Y. 283.) VII. It was reversible error for the trial court to receive in evidence the coerced confession alleged to have been made by appellant to Dr. Helfand. VIII. Appellant was not accorded a fair trial. (United States v. Brandt, 196 F. 2d 653.)

      Miles F. McDonald, District Attorney (William I. Siegel of counsel), for respondent.
    I. Appellant was guilty of the crime of murder in the first degree. (Stover v. People, 56 N. Y. 315; People v. Deitsch, 237 N. Y. 300; People v. Furlong, 187 N. Y. 198; People v. Buchanan, 145 N. Y. 1; People v. Majone, 91 N. Y. 211; People v. Hawkins, 109 N. Y. 408; People v. Conroy, 153 N. Y. 174; People v. Deacons, 109 N. Y. 374.) II. No errors of law were committed by the trial court. (People v. Lewis, 238 N. Y. 1; Malinski v. New York, 324 U. S. 401; Lyons v. Oklahoma, 322 U. S. 596; Stroble v. California, 342 U. S. 811; Rochin v. California, 342 U. S. 165; People v. Borowsky, 258 N. Y. 371; People v. Alex, 265 N. Y. 192; People v. Doran, 246 N. Y. 409; People v. Trybus, 219 N. Y. 18; People v. Elmore, 277 N. Y. 397; People v. Fay, 270 App. Div. 261, 296 N. Y. 510, 332 U. S. 261; Commonwealth v. Grant, 183 Pa. 663, 121 Pa. Superior Ct. 399.) III. Appellant was accorded a fair trial. (People v. Knapper, 230 App. Div. 487.)
   Dye, J„

When we reversed the prior judgment of conviction and ordered a new trial on the ground that the defendant’s confession to Dr. Helfand was coerced as a matter of law, we thereby ruled it out for any further consideration on the issue of defendant’s guilt (People v. Leyra, 302 N. Y. 353). By this ruling we did not invalidate the statements subsequently made by defendant to other persons and specifically left their validity open for separate consideration by a later jury as an issue of fact whether all or any of such statements depended on the mental coercion practiced by Dr. Plelfand and then “ only if the jury were satisfied beyond a reasonable doubt that such coercion had ceased to influence defendant could they consider the later confessions # * * (Lyons v. Oklahoma, supra) [322 U. S. 596].” (People v. Leyra, supra, p. 366.)

At the prior trial it had also been contended that a statement by Dr. Helfand contained a promise of leniency which might be attributed under the circumstances to the District Attorney. This required no definitive ruling from us as we had already declared the confession invalid for coercion, but we did not thereby overlook the possible influence of the alleged promise on the later statements, by way of inducement, and just as in the case of the mental coercion, we specifically left it for the jury to consider separately in the light of any promise of leniency, for it was only in that manner that due process could be afforded (Lyons v. Oklahoma, supra; Malinski v. New York, 324 U. S. 401).

According to the record now before us, the Helfand confession was again received in evidence “ merely on the question as to whether or not whatever statements the defendant made * * * were inspired ” by Dr. Helfand, an issue raised by defense counsel. This was received after the trial court had cautioned counsel at length, followed by a most explicit and detailed instruction to the jury as to its illegality phrased in most simple and understandable language that they might n< consider it on the issue of guilt under “ any circumstances ”, but were limited to a consideration of its effect on the later confessions, and that these too were to be entirely disregarded if found to be dependent upon it in any respect whatsoever, a distinction which each individual juror signified that he understood. The Trial Judge did not stop there but dealt with it in his main charge and we believe fully and adequately by pointing out again and again that as a matter of law the confession made to Dr. Helfand was not to be considered on the issue of guilt. Moreover, he was careful to instruct the jury as to the defendant’s contention leaving them to say with what force and effect the coercion and promise * * * did in fact carry over and into each of the subsequent confessions ” at the same time giving like instruction as to the People’s contention, leaving it for the jury to say whether the later confessions made to other persons “ were entirely voluntary and not induced by any promise of leniency.”

In this manner and by this means the defendant’s statement to Dr. Helfand was effectively insulated from the jury for consideration on the issue of guilt and was made available to them for the sole and limited purpose of saying whether or not the later statements made to others were dependent in any way on coercion or inducement, coupled with the clear and positive instruction that if so found to be, it was worthless as evidence ”. Such submission for separate consideration was in obedience to our specific ruling at the prior trial.

When the Trial Judge charged that as a matter of law a promise of leniency had been made by Dr. Helfand, he did not thereby make that statement “ the law of the case ” to such an extent as to deprive the jury of the benefit of his instruction as to carry over and inducement That was the precise issue they were required to pass upon. The 11 law of the case ” governing the jurors in their deliberations is to be found in the charge in its entirety and is not to be taken from a ruling concerning the limited nature and effect of a single item of evidence, particularly, when the point said to be prejudicial, as here, has been specifically excluded. The law governing the retrial of this case was explicitly laid down by us at the prior trial which was that the statement to Dr. Helfand was coerced and worthless as evidence. The circumstance that the Trial Judge also said it was worthless, because a promise had been made as a matter of law, did not in any way prejudice the defendant. It was, if anything, to his advantage.

The judgment of conviction should be affirmed.

Fuld, J.

(dissenting). To see this ease whole and in proper focus, it must be borne in mind that defendant’s conviction rests solely upon his confessions and that the trial court so charged the jury, advising that, absent those confessions, “ defendant must be acquitted, for the reason that the Court rules, as a matter of law, that all of the other evidence in the case * * * even if accepted by the jury as true, is insufficient upon which to predicate a verdict of guilty. ”

The trial judge charged unequivocally that Dr. Helfand had promised defendant, in order to induce him to confess,” that he would not be prosecuted for murder in the first degree, that such promise was authorized by the district attorney and that defendant confessed in reliance upon it. Consequently, as the trial court went on to charge, that confession was inadmissible as a matter of law. (See Code Crim. Pro., § 395.) In view of that charge'— which, of course, became the law of the case — it follows, as a matter of ineluctable logic, that any and all other confessions to the district attorney or those associated with him in the investigation and prosecution of this very homicide, must also be deemed to have been induced by that promise, and likewise inadmissible. Accordingly, when the court further instructed the jury that it might find that the confessions to assistants of the district attorney and to a police captain — made within an hour or two after immunity had been promised — had not been induced by the promise, it pursued a course that was not only opposed to logic, but incompatible with the law of the case. That was error highly prejudicial to defendant.

Nor does the existence of the confession that defendant made to Herrschaft, his friend and business associate, change the situation or permit an affirmance. True, that confession may stand in a category different from those made to prosecutor and police; other considerations, considerations separate and apart from the district attorney’s promise, may have prompted defendant to confess to his friend. I am willing to assume, therefore, that the court was warranted in leaving to the jury the question whether or not the promise induced defendant’s confession to Herrschaft, but that does not dispose of the matter. Since the jury also had before it the two confessions made to the law enforcement officials, and since those confessions played a not unimportant part at the trial, no court can say that the jury, in reaching its verdict, either relied solely upon the confession to Herrschaft or disregarded entirely the other confessions. That being so, the conviction cannot be upheld. (Cf. Stroble v. California, 343 U. S. 181, 190.)

I would reverse the judgment and order a new trial.

Lewis and Desmond, JJ., concur with Dye, J.; Froessel, J., concurs for affirmance under the provisions of section 542 of the Code of Criminal Procedure; Fuld, J., dissents in opinion in which Lottghran, Ch. J., concurs; Conway, J., not sitting.

Judgment of conviction affirmed. [See 304 N. Y. 844.]


text:
    Max M. Schwartz, Respondent, v. William J. Heffernan et al., Appellants.
    Argued October 20, 1952;
    decided November 20, 1952.

      Denis M. Hurley, Corporation Counsel (Andrew Bellanca and Seymour B. Quel of counsel), for appellants.
    I. Section 145 of the Election Law specifically authorized the board of elections to pass upon the validity of plaintiff’s designating petition and objections filed thereto. There is no mandate requiring that petition be accepted as filed. Accordingly, defendants, as members of the board, may not be held personally liable in a suit for damages because of the board’s determination thereunder, even though erroneous, especially in the absence of any allegation of malice or bad faith, or breach of a duty owing to plaintiff. (Knowles v. City of New York, 176 N. Y. 430; Leonard v. Cammann, 257 App. Div. 387; O’Brien v. City of Rome, 262 App. Div. 940; Gerdes v. Reynolds, 281 N. Y. 180; Meinecke v. McFarland, 122 Mont. 515; Gibson v. Reynolds, 172 F. 2d 95, 337 U. S. 925.) II. Under the circumstances the board of elections was fully warranted in passing upon the sufficiency of plaintiff’s petition. The members of the board cannot be held personally liable in damages for the determination of the board made in the discharge of its official duties even though it be erroneous, especially in the absence of a showing of a clear breach of duty, or malice or bad faith in the performance thereof. (Spalding v. Vilas, 161 U. S. 483; Herwig v. Crenshaw, 188 F. 2d 572, 342 U. S. 905, 342 U. S. 934; Papagianakis v. The Samos, 186 F. 2d 257; 341 U. S. 921; Powell v. Rothensies, 183 F. 2d 774; Gibson v. Reynolds, 172 F. 2d 95, 337 U. S. 925; Sidbury v. Gill, 102 F. Supp. 483; Block v. Sassaman, 26 F. Supp. 105; Jenkins v. Waldron, 11 Johns. 114; Long v. Somervell, 175 Misc. 119, 261 App. Div. 946; Tyrell v. Burke, 110 N. J. L. 225.) III. In addition the action complained of — that defendants acted beyond the scope of their authority, power or duty to entertain, inquire into, or act upon and arbitrarily, wrongfully and illegally declared that plaintiff’s said designating petition was invalid — relates at best to a breach of a public duty and not one owing to a private individual, and is therefore to be redressed by some form of prosecution and not by an action for damages by a person who conceives himself to be specially injured thereby. (Papagianakis v. The Samos, 186 F. 2d 257, 341 U. S. 921; Yaselli v. Goff, 12 F. 2d 396, 275 U. S. 503; Spalding v. Vilas, 161 U. S. 483; Conner v. Long, 104 U. S. 228; Sidbury v. Gill, 102 F. Supp. 483; People ex rel. Gere v. Whitlock, 92 N. Y. 191; Long v. Mayor of City of N. Y., 81 N. Y. 425; Conner v. Mayor of City of N. Y., 5 N. Y. 285; People v. Morris, 13 Wend. 325.) IV. Furthermore, while the action here is against individuals, nothing is alleged in the amended complaint to indicate that the action complained of rests with any particular member of the board of elections. Section 145 of the Election Law places this duty solely with the board, acting by vote of the majority of its members at a meeting called for the purpose. (Matter of Talbot v. Board of Educ. of City of

      N. Y., 171 Misc. 974; Matter of Cavallaro, 112 N. Y. L. J. 120; Matter of Garrett, 106 N. Y. L. J. 497; Tyrell v. Burke, 110 N. J. L. 225.) V. Not only does plaintiff’s amended complaint fail to set forth facts sufficient to state a cause of action, but public policy requires that public officers, acting in good faith in connection with matters arising from the performance of their official duties, be held immune from personal liability for losses arising from their actions. (Spalding v. Vilas, 161 U. S. 483; Herwig v. Crenshaw, 188 F. 2d 572, 342 U. S. 905, 342 U. S. 934; Papagianakis v. The Samos, 186 F. 2d 257, 341 U. S. 921; Powell v. Rothensies, 183 F. 2d 774; Gibson v. Reynolds, 172 F. 2d 95, 337 U. S. 925; Sidbury v. Gill, 102 F. Supp. 483; Block v. Sassaman, 26 F. Supp. 105; Jenkins v. Waldron, 11 Johns. 114; Long v. Somervell, 175 Misc. 119, 261 App. Div. 946; Tyrell v. Burke, 110 N. J. L. 225.) VI. The immunity of public officers from civil action has been applied not only in matters requiring the exercise of judgment and discretion but also to functions which are sometimes labeled as ministerial. (Herwig v. Crenshaw, 188 F. 2d 572, 342 U. S. 905, 342 U. S. 934; Papagianakis v. The Samos, 186 F. 2d 257, 341 U. S. 921; Powell v. Rothensies, 183 F. 2d 774; Cooper v. O’Connor, 99 F. 2d 135, 305 U. S. 642; Jenkins v. Waldron, 11 Johns. 114; Tyrell v. Burke, 110 N. J. L. 225.) VII. In any event, the damages, if any, were occasioned by plaintiff’s failure to exercise the summary remedy provided for in section 330 of the Election Law, although ample time to do so existed prior to the holding of the primary election. His failure to act under the circumstances bars plaintiff from recovery. (Porter v. Investors Syndicate, 286 U. S. 461; Prentis v. Atlantic Coast Line, 211 U. S. 210; Matter of Powers Management Corp. v. Thatcher, 271 N. Y. 94; Great Atlantic & Pacific Tea Co. v. Boland, 176 Misc. 258, 261 App. Div. 900; Matter of Kesbec, Inc., v. Reville, 246 App. Div. 694; People ex rel. Broadway & 96th St. Realty Co. v. Walsh, 203 App. Div. 468; Jaffarian v. Murphy, 280 Mass. 402.)

      Joseph M. Schwartz for respondent.
    I. Section 103 of the Election Law imposed upon appellants the obligation to place upon the ballot the name of a candidate designated by petition. This duty and that of examining such petition were ministerial. (Wicksel v. Cohen, 262 N. Y. 446; Matter of Lindgren, 232 N. Y. 59; Matter of Kaplan v. Meisser, 196 Misc. 237; Matter of Smith
      v. Board of Elections, 196 Misc. 109; Matter of Collins v. Heffernan, 187 Misc. 165; Matter of Funkhouser, 157 Misc. 400; Matter of Multer v. Cohen, 156 Misc. 564; Matter of Killeen, 121 Misc. 482; Matter of Bednarsh v. Cohen, 267 App. Div. 133.) II. The complaint alleges a willful and calloused disregard by appellants of their plain and clear duty. (Chotapeg, Inc., v. Bullowa, 291 N. Y. 70; Pine Grove Poultry Farm v. Newtown By-Products Mfg. Co., 248 N. Y. 293; Crown Embroidery Works v. Gordon, 190 App. Div. 472; City of Buffalo v. New York Central R. R. Co., 125 Misc. 801, 218 App. Div. 810; Raphael v. Raphael, 189 Misc. 144; Farrelly v. Wells, 115 Misc. 632.) III. The alleged breach by defendants of their statutory duty makes them answerable in damages to plaintiff. (Goetcheus v. Matthewson, 61 N. Y. 420; Nixon v. Herndon, 273 U. S. 536; Frank v. Eaton, 225 App. Div. 149; Larson v. Marsh, 144 Neb. 644.) IV. The remedy provided by section 330 of the Election Law is not exclusive. Nor is it a prerequisite to the maintenance of this action. (Matter of Foote v. Lee, 175 Misc. 60; Matter of Hall, 157 Misc. 768; Wingate v. Flynn, 256 N. Y. 690; Sheils v. Flynn, 252 App. Div. 140; Matter of Carson, 164 Misc. 945, 254 App. Div. 801; Matter of Oliver, 234 App. Div. 170; Matter of Bonacher v. Chuckrow, 166 Misc. 171.) V. Appellants should not be granted immunity as a matter of public policy. On the contrary, public welfare demands that the complaint be sustained.
   Desmond, J.

Since the amended complaint in this case isl attacked as insufficient in law, we examine its allegations to see whether they, taken as true for present purposes, spell out a cause of action.

Defendants, sued in their individual capacities and not as public officers, were, in 1950, the members of the Board of Elections of the City of New York. In July of that year, says the amended complaint, plaintiff duly filed with that board a petition in the manner and form prescribed by the Election Law of the State of New York, consisting of 307 pages, numbered consecutively, containing 3,092 signatures, the dates when signed, the residence, including the election and assembly districts, of the signatories and an affidavit, at the bottom of each sheet, of a duly qualified voter of the State of New York authenticating the subscription of each signatory, whereby plaintiff was designated as a candidate in the primary election for the year 1950 for nomination as candidate of the Democratic Party for the public office of Member of the Assembly of the State of New York, 18th Assembly District, County of Kings, and for election to the party position of Member of the State Committee (Male), 18th Assembly District, County of Kings, Democratic Party.” The next averment of the pleading is that “ the said-Board of Elections duly accepted said petition.” Then follow allegations that objections (see Election Law, § 145) were filed with the board, and that, in accordance with the board’s “ rules and practice ” the petition and the objections were examined by the board’s clerical staff.

Paragraph 7 of the amended complaint says that, on July 31, 1950, defendants, acting as the board of elections, held a hearing as to the objections, at which hearing the board received the report of its clerks, who reported to the board that plaintiff’s petition contained a total of 3,092 signatures but that 721 thereof were invalid, which left 2,371 valid signatures, and that such a petition required 350 valid signatures, only. That report, alleges plaintiff, “ was not challenged or disputed by the objectors, the candidate or defendants and the same was duly accepted and adopted by defendants.” The petition, according to the amended complaint, actually did contain 2,371 valid signatures, just as reported by the board’s clerks, and was “ a good, sufficient and valid designating petition.” It was, therefore, pleads plaintiff, the duty of defendants to put plaintiff’s name on the appropriate ballot for the primary election of August 22,1950.

Paragraph 12 of the amended complaint says that “ defendants arbitrarily, wrongfully and illegally failed, neglected and refused to place the name of plaintiff upon said ballot for the primary election as aforesaid and plaintiff’s name did not appear thereon.” The remaining allegations are these: that by reason of defendants ’ nonfeasance plaintiff was deprived of his right to be a candidate, and that he has been further damaged in that he had expended a considerable sum for printing the rejected petition, and for other campaign expenditures.

Both courts below, denying the motion to dismiss, held the pleading sufficient, the Special Term opinion relying largely on Frank v. Eaton (225 App. Div. 149, 227 App. Div. 829) and similar decisions in other jurisdictions. The majority in the Appellate Division wrote no opinion. The dissenting Justice in that court thought that plaintiff was entitled to no relief by suit, since, as the dissenting opinion says (279 App. Div. 898): “ The damages which plaintiff is claiming are those occasioned not by any action of the board of elections, but by plaintiff’s own failure to exercise the summary remedy provided in section 330 of the Election Law ’ ’ — that is, by his failure to seek a review, in the Supreme Court, of the board’s rejection of his petition.

Defendants’ attack on the pleading in this court may be summarized thus: (1) Since the board is authorized by law to pass on such questions, its members may not be held personally liable for damages for any determination thereon, even though ^ erroneous, especially in the absence of any allegation of malice or bad faith; and (2) that plaintiff’s damages, if any, were caused by his own failure to seek the summary remedy provided by the Election Law (§ 330).

It is settled that boards of election have no power to deal with questions of fact or with objections involving matters not appearing upon the face of the petition, and that such extrinsic matters, if any, are to be determined in court proceedings only (Matter of McGovern [Olson], 291 N. Y. 104, 108). In other words, the board’s power to determine the validity of a nominating petition “ extends only to ministerial examination ” and the board “ may not go behind a petition designating candidates for primary election ” (Abrahams’ New York Election Law, p. 339; see Gassman’s Election Law, § 41). It follows that, when plaintiff’s petition was objected to, the board could do no more than scrutinize the face thereof, as to compliance with the Election Law. If, as plaintiff alleges, such examination showed compliance with the statute, the board was functus officio. It was bound to go no further, but to accept the document and put plaintiff’s name on the ballot.

But, say defendants, that duty of the board was one owed to the public generally, not to any one individual such as plaintiff, and its breach was, therefore, not an actionable wrong to plaintiff. Such a view of the law is directly opposed to the holding in Frank v. Eaton (225 App. Div. 149 [1928], supra) (and in Larson v. Marsh, 144 Neb. 644, and Moore v. Kessler, 59 Ind. 152, the other leading American cases). Frank v. Eaton should, we think, be followed by us, not only because of its convincing reasoning, but because it is in accord with strong precedents elsewhere, including cases in other States and ancient English rulings (see 153 A. L. R. 148). Citing Goetcheus v. Matthewson (61 N. Y. 420) as upholding the right to sue for damages of a citizen wrongfully deprived of the right to vote, Justice Whitmyer, in Frank v. Eaton, concluded that “if it exists in that case, it must exist in the case of a candidate, who has been illegally deprived of his rights ” (225 App. Div., p. 151). With that we agree. Appellants here point out that, in the Frank case, the act complained of was a felony, but there is nothing in the Frank opinion (or in any of the other cases on the subject, we think) to suggest that this circumstance controlled the result.

Frank v. Eaton (supra) is authority, too, for rejecting the argument (adopted by the trial court in that very case) that plaintiff’s only remedy was by court review of the board’s action, under section 330 of the Election Law. The remedy under that statute, wrote the Appellate Division, ‘6 is not declared to be exclusive and is to be construed as cumulative.” (P. 151.) Here, again, we agree. If it be true, as alleged, that these defendants arbitrarily rejected an entirely valid nominating petition, then a wrong to plaintiff was complete and immediately actionable, even though, by a different sort of legal proceeding, the board’s determination, as such, could have been reviewed in the courts. We see nothing, in the language or purpose of section 330, to indicate otherwise. The four New York, and the two Federal decisions listed by appellants at this point in their argument all involve lawsuits against public officials as such, and in each the question was simply this: when a statute sets up a specific method of reviewing official action, may a different sort of suit or proceeding be substituted therefor?

Of course, as appellants point out, there is a line of cases holding that public officers with entirely different duties are not liable for damages, at the suit of a citizen, for making non-malicious and nonfraudulent mistakes adversely affecting that citizen’s rights or interests. But a different public policy operates as to election officials. Indeed, this is stated most plainly in the Massachusetts case called to our attention by appellants: Jaffarian v. Murphy (280 Mass. 402). That litigation involved an attempt by a license applicant to collect from a city mayor, as damages, the counsel fee spent by plaintiff in bringing a successful mandamus proceeding to compel the mayor to grant a license which had been improperly refused. Chief Justice Rugg, for the Massachusetts Supreme Court, wrote this (p. 407): “ There is a line of cases in this Commonwealth holding that one having the legal qualifications entitling him to be registered as a voter or to vote, but denied that right by the honest but mistaken act of public officers, has a right of action in tort against those who have thus done him a wrong. # * * These cases have been said by Chief Justice Shaw to rest upon grounds of public policy, the importance of the personal right, and the difficulty of indicating it in any other wayt’ ” For at least two centuries the courts in jurisdictions with representative forms of government have given most special protection to a citizen’s right to vote (Herring v. Finch, 2 Lev. 250 [1679], 83 Eng. Rep. 542) and, correlatively, his right to be a candidate (Sterling v. Turner, 1 Vent. 206 [1672], 86 Eng. Rep. 139). It would not do to cut down that protection.

But appellants insist that this amended complaint, since it lacks allegations of “ malice ” or “ bad faith ”, charges no more than a mere mistake. Frank v. Eaton (supra) at least suggests and Moore v. Kessler (supra) flatly holds (see, also, 29 C. J. S., Elections, § 64, p. 89, “ Action by candidate ”) that there is liability, malice or no, for denial of rights in regard to candidacies. We will deal with that question when we come to it, but it is not presented by this motion. By moving to strike the pleading for insufficiency, defendants have authorized us, temporarily, to accept its statements as true. Surely, this amended complaint accuses defendants of more than a mere good-faith mistake, when it asserts that the petition was entirely sufficient on its face, that the board’s clerks so reported to the board, that this report was not challenged by the objectors or the board, but that the board members, arbitrarily and on grounds which they were not authorized to consider, declared a valid nominating petition invalid.

The order should be affirmed, with costs, and the question certified answered in the affirmative.

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

Order affirmed, etc.

         Matter of Towers Management Corp. v. Thatcher, 271 N. Y. 94, 97; Great Atlantic & Pacific Tea Co. v. Boland, 176 Misc. 258, affd. 261 App. Div. 900; Matter of Kesbec, Inc., v. Reville, 246 App. Div. 694; People ex rel. Broadway & 96th St. Realty Co. v. Walsh, 203 App. Div. 468; Porter v. Investors Syndicate, 286 U. S. 461, 468; Prentis v. Atlantic Coast Line, 211 U. S. 210, 229-230.


author: Lotjghban, Ch. J.

text:
    In the Matter of Jandyra Santos et al., Parents of Infants Alleged To Be Neglected. In the Matter of Jandyra Southern, Respondent. Free Synagogue Child Adoption Committee, Appellant; Catholic Home Bureau for Dependent Children, Intervener, Respondent.
    Argued October 7, 1952;
    decided November 20, 1952.

      Shad Holier for appellant.
    I. The Court of Appeals has jurisdiction of the instant appeal. (N. Y. Const., art. VI, § 7.) IT. The order appealed from is final. (People ex rel. Brussel v. Brussel, 279 App. Div. 859; Halvey v. Halvey, 330 U. S. 610; Matter of Fields, 302 N. Y. 262; Republic Gas Co. v. Oklahoma, 334 U. S. 62; Dept. of Banking v. Pink, 317 U. S. 264.) III. The constitutional question was timely raised. (Jongebloed v. Erie R. R. Co., 296 N. Y. 912; Matter of Hood & Sons v. Du Mond, 297 N. Y. 209; Herndon v. Georgia, 295 U. S. 441.) IV. The statute, as construed by the Appellate Division, is unconstitutional. (Matter of Knowack, 158 N. Y. 482; Finlay v. Finlay, 240 N. Y. 429; People ex rel. Hagan v. Alfano, 277 App. Div. 565; People ex rel. Hydock v. Greenberg, 273 App. Div. 710;
      Matter of Benning [Nigro], 303 N. Y. 775; People ex rel. Portnoy v. Strasser, 304 N. Y. 539; People ex rel. Horton v. Fuller, 41 App. Div. 404; People ex rel. “Anonymous” v. Perkins Adoption Soc., 271 App. Div. 672, 297 N. Y. 559; People ex rel. Grament v. Free Synagogue Child Adoption Comm., 194 Misc. 332; Prince v. Massachusetts, 321 U. S. 158.) Y. Due process is further violated because the due process clause of the Fourteenth Amendment incorporates the guarantee of religious freedom in the First Amendment. (Board of Education v. Barnette, 319 U. S. 624; Everson v. Board of Education, 330 U. S. 1; McCollum v. Board of Education, 333 U. S. 203; Zorach v. Clauson, 343 U. S. 306.)

      Porter B. Chandler, George A. Timone and Frederick G. Watson for respondent.
    I. The order appealed from does not “ finally ” determine the proceeding. (Matter of Block, 282 N. Y. 683; Matter of Begent v. Noyes, 284 N. Y. 229; Matter of Browning, 272 N. Y. 510; Caruthers v. Title Guar. & Trust Co., 295 N. Y. 887; Matter of City of New York [Upper N. Y. Bay], 243 N. Y. 522; Matter of City of New York [Staten Island Proceeding], 237 N. Y. 275; Matter of Colonial Liq. Distributors v. O’Connell, 295 N. Y. 129.) II. The questions attempted to be raised on this appeal have become academic and the appeal is therefore moot. (Doremus v. Board of Education, 342 U. S. 429; Delavan v. New York, N. H. & H. R. R. Co., 216 N. Y. 359.) III. The alleged constitutional questions are without substance. (People ex rel. Portnoy v. Strasser, 304 N. Y. 539; Matter of Zorach v. Clauson, 303 N. Y. 161, 343 U. S. 306; Matter of Gally, 107 N. E. 2d 21 [Mass.].)

      Frederick L. Kane and Gerard C. Durr for intervenerrespondent.
    I. The appeal should be dismissed because the questions involved have become academic and moot. II. There is no real constitutional question involved on the appeal.
   Lotjghban, Ch. J.

This special civil proceeding was brought in the Domestic Eelations Court of the City of New York, Children’s Court Division, County of New York. For convenience, we shall call that court the Domestic Eelations Court.

Upon an ex parte petition verified by Euth Benjamin which alleged that Diane and Linda Southern were neglected children who were Living with Custodian Euth Benjamin Hebrew ”, the Domestic Eelations Court adjudged the children to be neglected and thereafter committed them to the custody of the Free Synagogue Child Adoption Committee. The mother of the children later called upon that committee to return them to her and when her demand was refused, she petitioned the Domestic Eelations Court to vacate its prior ex parte order. The court granted her that relief and set the case down for a hearing.

At the hearing, evidence was offered to show that the mother of the children is a Eoman Catholic and that both children were baptized in that faith. But at the same time it was shown that the mother had boarded the children with Euth Benjamin who caused them to be instructed in the Jewish religion.

When the hearing was concluded, the Domestic Eelations Court announced its decision in these words: After closely observing the witnesses while testifying and then studying the minutes and the exhibits, unhesitantly I conclude that the evidence amply establishes that Diane and Linda Southern are neglected children ’; that the mother is not a fit and proper person to have their custody and has not now nor in prospect a suitable home or environment in which to rear them; and that their present and future welfare requires confirmation of their commitment as Jewish children to the Free Synagogue Child Adoption Committee ”.

Upon appeal by the mother to the Appellate Division, the order of the Domestic Eelations Court was in all respects reversed upon questions of law and fact and the matter was remanded to that court for further hearing and consideration in accordance with the opinion of the Appellate Division. In that opinion the Appellate Division cited subdivision 3 of section 86 and subdivisions 1 and 5 of section 88 of the Domestic Eelations Court Act and said (278 App. Div. 373, 375): Accordingly, under the mandatory provisions of the act, the court, after finding the children neglected and the mother an improper guardian, should have committed the children to the care of a duly authorized agency under the control of the children’s religious faith ” (see N. Y. Const., art. VI, § 18).

Subsequently to that decision of the Appellate Division the Free Synagogue Child Adoption Committee delivered the children to their mother. She in turn delivered them to the Catholic Home Bureau for Dependent Children through which they were committed to the care of a Catholic foster family with whom they are now living under the supervision of the bureau.

From the decision of the Appellate Division, the Free Synagogue Child Adoption Committee has appealed as of right to this court, contending that a constitutional question is here directly involved. Whether this appeal is properly here depends upon the answer to this question: Is the order of the Appellate Division a final determination in respect of the appellant Free Synagogue Child Adoption Committee? (See N. Y. Const., art. VI, § 7, subds. [1], [7].)

The order of the Appellate Division in terms directs a further hearing and consideration of the controversy. Under that order, the Domestic Relations Court, upon such rehearing and reconsideration, may: (1) award custody of the children to their mother or to a State agency; or (2) make a new judicial determination in respect of the religious affiliation of the children and then award custody of them to a private agency managed by members of their religion. (Gugel v. Hiscox, 216 N. Y. 145, 151-152; Halpern v. Amtorg Trading Corp., 292 N. Y. 42, 47-48; Cohen and Karger, Powers of the New York Court of Appeals, pp. 45-46.) The order of the Appellate Division did not dismiss any party to this proceeding nor did that order make any conclusive ruling in respect of the rights of any party. For that order was not an adjudication of a controversy between adversary parties to compose their private differences but was an exercise by the State through its courts of its power as parens patriae to protect infants qua infants (Finlay v. Finlay, 240 N. Y. 429, 433-434). In short the order of the Appellate Division does not finally determine this proceeding within the meaning of the Constitution of this State. Hence we must dismiss this appeal for want of jurisdiction.

The appeal should be dismissed, without costs.

Lewis, Conway, Desmond, Dye, Ftjld and Froessel, JJ.. concur.

Appeal dismissed.


author: Per Curiam.

text:
    Kenneth Clark, an Infant, by Albert Clark, His Guardian ad Litem, et al., Appellants, v. Board of Education of the City of New York, Respondent, et al., Defendants.
    Argued October 22, 1952;
    decided November 25, 1952.

      Benjamin Kopf for appellants.
    I. Plaintiffs made out a prima facie case. (Gardner v. State of New York, 281 N. Y. 212.) II. The verdict may also be sustained on the theory of foreseeability. (Jaked v. Board of Educ. of City of Albany, 198 App. Div. 113; Van Dyke v. City of Utica, 203 App. Div. 26; Herman v. Board of Educ., Town of Arcadia, 234 N. Y. 196; Rafsky v. City of New York, 257 App. Div. 855.)

      Denis M. Hurley, Corporation Counsel (Seymour B. Quel and Edward J. McLaughlin of counsel), for respondents.
    1. Plaintiffs failed to establish any negligence by the board or its employees in exercising control and supervision over the infant plaintiff. The absence of a supervisor at the mat did not of itself constitute negligence, and was not the proximate cause of the accident, which was the result of the unforeseeable act of a fellow pupil. (Graff v. Board of Educ. of City of N. Y., 258 App. Div. 813, 283 N. Y. 574; Miller v. Board of Educ., Town of Albion, 291 N. Y. 25; Peterson v. City of New York, 267 N. Y. 204; Ginsberg v. Board of Educ. of City of N. Y., N. Y. L. J., Oct. 14, 1946, p. 870, col. 3, 272 App. Div. 774.) II. Taking the testimony in the aspect most favorable to plaintiffs, it is still true that the proximate cause of the alleged accident was the return somersault by Ronald Soviero across the mat which, under the circumstances, could not have been anticipated in the exercise of defendants’ legal duty toward the infant plaintiff. (Ohman v. Board of Educ. of City of N. Y., 300 N. Y. 306; Wilber v. City of Binghamton, 271 App. Div. 402, 296 N. Y. 950; Maurer v. Board of Educ. of City of N. Y., 266 App. Div. 1012, 294 N. Y. 672; Blume v. City of Newburgh, 265 App. Div. 965, 291 N. Y. 739; Clark v. City of Buffalo, 288 N. Y. 62; Berner v. Board of Educ., No. Tonawanda, 286 N. Y. 174; Cambareri v. Board of Educ. of City of Albany, 246 App. Div. 127, 283 N. Y. 741; Gardner v. State of New York, 281 N. Y. 212.)
   Per Curiam.

The trial court submitted this case to the jury on two theories of negligence: (1) lack of supervision, and (2) lack of adequate instruction. Although the court was correct in its final conclusion that the case should not have been submitted to the jury on the first ground, it erred in dismissing the complaint, since there was evidence to support the verdict on the second ground (see Gardner v. State of New York, 281 N. Y. 212). Accordingly, the judgment may not stand. Inasmuch as we cannot know on which ground the jury arrived at its verdict, there must be a new trial (Phillipson v. Ninno, 233 N. Y. 223, 225-226; Elenkrieg v. Siebrecht, 238 N. Y. 254, 263).

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

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

Judgments reversed, etc.