author: Lehman, Ch. J.

text:
    Michel Cosmetics, Inc., Respondent, v. Aristides G. Tsirkas et al., Appellants.

      Argued January 18, 1940;
    decided March 5, 1940.

      Frederick L. Kane and Stephen D. Finale for appellants.
    The accounting provision of the interlocutory judgment, pursuant to which the pecuniary award was determined, was incorrect as a matter of law, no damage having been proven. (Allen Mfg. Co. v. Smith, 224 App. Div. 187; Tilghman v. Proctor, 125 U. S. 136; Anchor Stove & Range Co. v. Rymer, 97 Fed. Rep. [2d] 689; Conviser v. Brownstone & Co., 209 App. Div. 584; Champlin v. Stoddard, 34 Hun, 109; Downes v. Culbertson, 153 Misc. Rep. 14; Underhill v. Schenck, 238 N. Y. 7; Lawrence-Williams Co. v. Societe Enfants Gombault, 52 Fed. Rep. [2d] 774; Dickinson v. Thum Co., 8 Fed. Rep. [2d] 570; Van Kannell Revolving

      Door Co. v. Revolving Door & Fixture Co., 293 Fed. Rep. 261.) The process by which the official referee determined gross receipts to find plaintiff’s profits was erroneous. (Conviser v. Brownstone & Co., 209 App. Div. 584.) The process by which the official referee deducted only the expenses of labor, material and shipping from gross receipts to ascertain plaintiff’s profit was erroneous. (Cutter v. Gudebrod Bros. Co., 190 N. Y. 252; Tremaine v. Hitchcock, 90 U. S. 518; Duplate Corp. v. Triplex Safety Glass Co., 298 U. S. 448; Larson Co. v. Wrigley Co., 20 Fed. Rep. [2d] 830; 277 U. S. 97; Auto Vacuum Freezer Co. v. Sexton Co., 250 Fed. Rep. 459; Winthrop Chemical Co. v. Blackman, 159 Misc. Rep. 451.)

      Frederick Hemley and Jesse Hemley for respondent.
    The measure of recovery fixed by the interlocutory judgment was proper. (Conviser v. Brownstone & Co., 209 App. Div. 584; Champlin v. Stoddard, 34 Hun, 109; Westcott Chuck Co. v. Oneida Nat. Chuck Co., 199 N. Y. 247; Rose v. Hirsh, 94 Fed. Rep. 177; Continuous Glass Press Co. v. Schmertz Wire Glass Co., 219 Fed. Rep. 199; 238 U. S. 623; Regina Music Box Co. v. Otto & Sons, 114 Fed. Rep. 505; Transit Development Co. v. Cheatham E. S. Device Co., 194 Fed. Rep. 963; Lawrence-Williams Co. v. Societe Enfants Gombault, 52 Fed. Rep. [2d] 774; 285 U. S. 549; Larson Co. v. Wrigley Co., 20 Fed. Rep. [2d] 830.) The profit which plaintiff would have made had it manufactured and sold the lipsticks sold by defendants was properly computed. (Hamilton-Brown Shoe Co. v. Wolf Bros. & Co., 240 U. S. 251; Conviser v. Brownstone & Co., 209 App. Div. 584.)
   Lehman, Ch. J.

The plaintiff corporation is engaged in the business of manufacturing and selling lipsticks. These lipsticks are made in accordance with secret formulas and secret processes owned by it. The defendant Aristides G. Tsirkas was an employee of the plaintiff corporation, and in the course of his employment he learned the secret formulas and processes used by the plaintiff in its business. Then he left the plaintiff’s employ and formed the defendant corporation. The individual defendants manage and control the defendant corporation and have manufactured and sold lipsticks made in accordance with the formulas and the processes owned by the plaintiff. The plaintiff alleges in its complaint that the defendants have wrongfully manufactured the lipsticks in accordance with formulas and processes belonging to the plaintiff and have placed the lipsticks so manufactured in containers similar to the containers used by the plaintiff, with the object of deceiving buyers into the belief that they were buying the product of the plaintiff, and have sold the lipsticks in such containers to customers of the plaintiff, whose names the defendant Tsirkas obtained from the plaintiff’s files. In this action the plaintiff asks that the defendants be enjoined from continuing their wrongful acts; and, also, that they be directed to account to the plaintiff for all sales and contracts made by them, or any of them, for the sale of lipsticks made by the secret formulae or secret processes owned by the plaintiff as aforesaid,” and “ that plaintiff recover damages against the defendants, and each of them, in the sum of Twenty-five Thousand ($25,000) Dollars and in such additional sum as may be found due upon said accounting.”

After trial of the issues, an interlocutory judgment in favor of the plaintiff was entered which decreed, among other things, that the defendants be enjoined from manufacturing, selling or offering for sale any lipsticks, “ made by the secret formula or secret processes which belong to the plaintiff;” that they be restrained from selling lipsticks in containers which resemble those heretofore used by them or any containers used by plaintiff,” and that they account to plaintiff for all profits which plaintiff would have made on the lipsticks manufactured and sold by defendants from November 1, 1934, up to the present time if said lipsticks had been manufactured and sold by plaintiff.”

The evidence showed that the defendants sold large size lipsticks in black and gold containers and other lipsticks in red and pink containers. The Appellate Division, upon appeal from the interlocutory judgment, made a new findiug that the containers used by plaintiff and imitated by the defendants are the black and gold containers for the large size lipsticks.” The court did not find that the red and pink containers were an imitation of any containers used by the plaintiff and accordingly it modified the injunctive provision contained in the interlocutory decree of Special Term so that the defendants were restrained from using the black and gold containers but were left free to use the red and pink containers. The court did not change the provision of the interlocutory judgment for an accounting.

The accounting has been held before an official referee and final judgment awarding to the plaintiff damages in the sum of $19,726.76 has been entered and unanimously affirmed by the Appellate Division. Upon the appeal to this court from the final judgment, the defendants do not challenge the injunctive provisions of the judgment, but they urge that the award of damages is not justified by the evidence. The defendants have wronged the plaintiff. They must pay to the plaintiff the damages they have caused the plaintiff by that wrong. A wrongdoer who has imitated the containers of the plaintiff and has used the secret formulas and processes belonging to the plaintiff might be compelled to yield up his gains to the true owner, upon a principle analogous to that which charges a trustee with the profits acquired by wrongful use of the property of the cestui que trust.” (Hamilton-Brown Shoe Co. v. Wolf Brothers & Co., 240 U. S. 251, 2:59.) Here it does not appear that the defendants acquired any profits, but they must compensate the plaintiff for any damages they may have inflicted upon the plaintiff even though they failed to realize the profit which they anticipated would accrue to them from the wrong. (Westcott Chuck Co. v. Oneida Nat. Chuck Co., 199 N. Y. 247; Hamilton-Brown Shoe Co. v. Wolf Brothers & Co., supra; Platinum Products Corp. v. Berthold, 280 N. Y. 752; Faber v. Hovey, 73 N. Y. 592.) The problem presented upon this appeal is whether upon the evidence here presented the court has properly applied the correct measure of damages.

The wrong inflicted upon the plaintiff is analogous to the wrong suffered by an owner through infringement of his patent or trade-mark, and the rule of damages is similar. An infringer must compensate the owner of a trade-mark, a patent, a process or a formula for the profits which the owner would have acquired in his business except for such infringement. Here if the plaintiff would otherwise have made the sales of lipsticks which in fact the defendants made by the use of plaintiff’s formulas, then the plaintiff is entitled to recover from the defendants the amount of the profits which the plaintiff would have acquired upon such sales but for the defendants’ wrong. The evidence required to show that profits have been lost, and their amount, may depend upon the special circumstances of the case. The general rule has been established by an unbroken line of decisions in the courts of this State and of the United States, and the interlocutory decree has provided that it should be applied in this case.

The number of lipsticks manufactured in accordance with the secret formulas of the plaintiff, and sold by the defendants; the size of the containers used; and the persons to whom the sales were made, were shown by the books of the defendants. The costs and expenses of the plaintiff in manufacturing and selling its lipsticks; the countries where sales were made; and the prices obtained were shown by the plaintiff’s books. Some of the containers used by the defendants were larger than the containers used by the plaintiff. The plaintiff’s recovery was measured by the difference between the price which the plaintiff would have received upon the sale of the number of lipsticks it could have manufactured from the materials used by the defendants and the estimated costs and expenses which the plaintiff would have incurred in manufacturing and selling that number in addition to the lipsticks it actually manufactured and sold. It does not appear that the defendants’ lipsticks were sold to plaintiff’s customers; on the contrary, it appears that some of the defendants’ lipsticks were sold in countries in which the plaintiff was not attempting to distribute its product. With the exception of a comparatively small number of lipsticks which the defendants sold in black and gold containers resembling the plaintiff’s containers, it does not appear that the defendants attempted or succeeded in deceiving their customers that they were buying goods manufactured by the plaintiff. The plaintiff has recovered the estimated profits it would have made on the lipsticks manufactured and sold by defendants if said lipsticks had been manufactured and sold by plaintiff, but there is no evidence in this case which would support a finding that plaintiff would have sold those lipsticks except for the defendants’ wrong —at least, unless an inference that the plaintiff would have made those sales arises from the fact that the lipsticks made by both the plaintiff and the defendants were made according to a formula which only the plaintiff had the right to use.

The defendants challenge the manner in which the courts below have calculated the costs and expenses which the plaintiff would have incurred if it, rather than the defendants, had sold the lipsticks, in fact sold by the defendants. We do not reach the question of whether profits which the plaintiff might have made upon sales not actually made by it were correctly estimated unless we first determine that upon this record the plaintiff is entitled to recover any estimated profits upon such sales. We are told that the interlocutory judgment provides that the plaintiff is entitled to damages measured by such profit and that the defendants did not upon the appeal to the Appellate Division object to the form of the judgment. The language of the interlocutory judgment is not entirely clear upon that point and the learned referee held that under its terms further proof was not required to establish that the defendants’ wrong had deprived the plaintiff of such profits. Assuming though not deciding that such construction is correct, then we must determine whether the court could properly insert in the interlocutory judgment the provision relied upon. The injunctive provisions of the interlocutory judgment were, as we have said, modified very substantially in the Appellate Division and the question whether the provisions for an accounting are an appropriate remedy for the wrongs which the court enjoined in the interlocutory judgment as modified is properly raised in this court.

The defendants have competed with the plaintiff and their competition has been wrongful. Estimated profits which the plaintiff might have derived from sales actually made by- the defendants in competition with the plaintiff do not measure the damages except as they are shown to represent loss to the plaintiff by a corresponding decrease of profits in his own business occasioned by such competition.” (4 Sutherland on the Law of Damages [4th ed.], p. 4492.) When a plaintiff in a trade-mark or unfair competition case seeks to recover damages, the burden is on him to prove by competent and sufficient evidence his lost sales, or that he was compelled to reduce prices as the result of his competitor’s wrongful conduct. There is no presumption of law or of fact that a plaintiff would have made the sales that the defendant made.” (Dickinson v. Thum Co., 8 Fed. Rep. [2d] 570, 575.)

In every case where damages have been recovered, measured by profits which the plaintiff would have derived from sales made by a defendant if the plaintiff had made those sales, there has been some evidence tending to show that the defendant’s wrongful acts have caused the plaintiff to suffer a commensurate decrease of profits. That is true in all the cases relied upon by the respondent upon this appeal. Thus, in Conviser v. Brownstone & Co. (209 App. Div. 584) the defendant’s sales were made to plaintiff’s own customers. In Champlin v. Stoddard (34 Hun, 109, 110) it was pointed out that “ the referee found, upon sufficient evidence, that the plaintiffs were prepared and able to have sold the same quantity, in addition to what they did sell, during the same period. The evidence shows very clearly that the defendant’s sales were made largely in places where the plaintiffs had an established market which they had built up by extensive advertising, the defendant’s sales being at a reduced price, and in great part to persons who had" been customers of the plaintiffs.” In Lawrence-Williams Co. v. Societe Enfants Gombault Et Cie (52 Fed. Rep. [2d] 774) the defendant had been the plaintiff’s exclusive distributor in this country and when he ceased to sell the plaintiff’s product he continued to be the sole distributor of the same article though then it was produced by himself. In Platinum Products Corp. v. Berthold (supra) the evidence showed that before the defendant began to distribute the same article which plaintiff manufactured and sold, the plaintiff had built up a national reputation and good will and sold its product to representative department stores throughout the country. The wrongful acts of the defendant enabled the defendant to sell, at a lower price, the same product in the same field and in consequence the plaintiff’s business was ruined and damages were greater than the profits it would have made if it had sold the number of articles which the defendant actually sold. (Cf., also, Rose v. Hirsh, 94 Fed. Rep. 177; Continuous Glass Press Co. v. Schmertz Wire Glass Co., 219 Fed. Rep. 199; Regina Music Box Co. v. Otto & Sons, 114 Fed. Rep. 505; Transit Development Co. v. Cheatham E. S. Device Co., 194 Fed. Rep. 963, 966.) In all these cases there is evidence upon which findings were based to the effect that the plaintiff lost sales of its product to the extent measured by defendant’s manufacture of its own.

It is true that the proof in these cases was often far from conclusive. Such proof is not required. The defendants are wanton wrongdoers and in such case “ every doubt and difficulty should be resolved against them.” (Rubber Co. v. Goodyear, 9 Wall. [U. S.] 788, 803.) “ All that is necessary in order to prove actual damages is to furnish some reasonable basis or data on which to calculate them, and whenever the evidence is sufficiently definite to show the pecuniary loss suffered by the complainant, he is entitled to be reimbursed, no matter whether the infringer gained anything by the infringement or not.” (Creamer v. Bowers, 35 Fed. Rep. 206, 208.)

In this case the evidence may be sufficient to permit the inference that the defendants have caused some loss of profits to the plaintiff, but is certainly insufficient to justify an inference that the plaintiff would have made all the sales actually made by the defendants if the defendants had not competed with it. The plaintiff’s sales were not reduced after that competition began nor were its profits, and, as we have said, at least in part, the sales by the defendants were not made in territory where the plaintiff did business. We cannot upon this appeal make findings which would sustain even a partial recovery; that is a function of the trial court after weighing the evidence and choosing among possible inferences.

The judgments should be reversed, and a new trial granted to determine the plaintiff’s damages, in accordance with this opinion, with costs to the appellants to abide the event.

Loughran, Finch, Rippey, Sears, Lewis and Conway, JJ., concur.

Judgment accordingly.


source: Caselaw Access Project

author: Finch, J.

license: Public Domain

text:
    In the Matter of Louis H. Staples, Respondent, against Paul J. Kern et al., Constituting the Municipal Civil Service Commission of the City of New York, Appellants.

      Argued January 23, 1940;
    decided March 5, 1940.

      William C. Chanler, Corporation Counsel (Stanley Buchsbaum and Robert H. Schaffer of counsel), for appellants.
    Provisional employees of the Emergency Relief Bureau who were performing work similar to that of messenger or attendant were entitled to compete in the examinations for the positions of watchman-attendant and messenger-attendant without regard to the preliminary requirements. (Matter of Sheridan v. Kern, 166 Misc. Rep. 920; 255 App. Div. 57; Matter of Grout v. Finegan, 250 App. Div. 753; Matter of O’Callaghan v. Finegan, 166 Misc. Rep. 556; 276 N. Y. 537.) The method of remedying mistakes of the Commission which deprive persons of an opportunity to take civil service examinations by giving them a special competitive examination is reasonable and proper, and there has been compliance with the rule providing for such tests. (People ex rel. Rice v. Graves, 242 App. Div. 128; 270 N. Y. 498.)

      Samuel Luloff and Morris Luloff for respondent.
    The Commission committed no manifest error in failing to provide a waiver of preliminary requirements in the 1936 examinations. (Matter of Kraus v. Singstad, 275 N. Y. 302; Matter of Social Investigators E. Assn. v. Taylor, 268 N. Y. 233; Baker v. Brintnall, 52 Barb. 188; Matter of Britt v. Kern, 279 N. Y. 701; Matter of Ackerman v. Kern, 281 N. Y. 87.) The Commission is bound by its own rules, and its failure to act upon the purported manifest error within the time limited by its rules invalidates its conduct. (Matter of O’Brien v. Delaney, 255 App. Div. 385; Wittekind v. Kern,
      170 Misc. Rep. 939; 256 App. Div. 918; 281 N. Y. 701; Carmody v. City of Mt. Vernon, 3 App. Div. 347; People ex rel. Davie v. Lynch, 164 App. Div. 517; Hellyer v. Prendergast, 176 App. Div. 383.) The Commission had no jurisdiction to include in the 1936 examinations a provision for Emergency Relief Bureau competitors to receive “ due credit ” or compete without preliminary requirements. (Social Investigators E. Assn. v. Taylor, 268 N. Y. 233.)
   Finch, J.

The appeal is here by leave of this court and is taken from an order of the Appellate Division unanimously affirming an order of Special Term.

The issues presented arise out of the attempt of the Municipal Civil Service Commission of the City of New York to correct on its own motion certain manifest errors which it had committed in the conduct of two examinations. Petitioner seeks to restrain the Municipal Civil Service Commission from conducting a supplementary examination designed to remedy the prior errors.

The Temporary Emergency Relief Administration was created by the Laws of 1931, chapter 798, which provided that the employees shall not be subject to the provisions of the civil service law ” (§ 19). This provision was held unconstitutional in Matter of Kraus v. Singstad (275 N. Y. 302). These provisions were amended by the so-called Hendel Act, which provided:

“ § 19. Salaries of local staffs. * * * No person employed pursuant to this act, during the emergency period, shall be subject to the provisions of the civil service law except that any local emergency relief bureau or other local relief authority may, with the approval of the administration or of the department succeeding to its functions, appoint its employees in accordance with the civil service law and rules from eligible lists established as a result of civil service examinations held subsequent to the time this section as hereby amended takes effect, in the grading of which due credit shall be given for experience with the local emergency relief bureaus or other local relief authorities (L. 1936, ch. 822, § 1.) (Italics added.)

By the Laws of 1937, chapter 358, section 15, the Legislature enacted the following: “ The foregoing provisions shall likewise apply to employees of the temporary emergency relief administration transferred to the state department of audit and control, and such persons shall hold temporary positions in the competitive class of the civil service until appointments shall be made from civil service eligible lists established by examinations hereafter held, to which persons employed in an equivalent position for a period of not less than three months between July first, nineteen hundred thirty-six and June thirtieth, nineteen hundred thirty-seven in the temporary emergency relief administration shall be deemed eligible for admission and in the grading of which due credit shall be granted for experience as an employee of the temporary emergency relief administration.” (Italics added.)

A similar provision is now incorporated in section 3-k of the Public Welfare Law (Cons. Laws, ch. 42), as amended by the Laws of 1938, chapter 482.

After the effective date of the Hendel Act, but before that of the 1937 statute, the Municipal Civil Service Commission conducted examinations for the positions of watchman-attendant and of messenger-attendant. The notices of the examinations were issued in August, 1936, and the examinations were given on October 24, 1936. On December 21, 1937, the messenger-attendant list was promulgated, and on May 11,1938, the watchman-attendant list was promulgated. The notices for these two examinations omitted to state that persons then employed by the Emergency Relief Bureau in similar positions would be eligible to take the examination without complying with the preliminary requirements applicable to all others. Furthermore, the Commission failed to notify about forty persons, who had filed applications, as to when the examinations would be conducted. The omission to permit employees of the ERB to take the examination with a waiver of preliminary requirements and the failure to notify forty candidates who had filed applications, and who had not been employed by the ERB, are urged by the Commission to constitute “ manifest errors ” on its part which it has the power to correct. Accordingly, on April 13, 1938, several months after the messenger-attendant list had been promulgated, and before the watchman-attendant list was promulgated, the Commission ordered that a special, supplementary examination be given on June 6 and 7, 1938, for the benefit of the forty applicants who failed to receive proper notice of the original examinations. On May 18th, a week after the watchman-attendant list was promulgated, the Commission ordered that those then engaged in appropriate work in the Department of Welfare, Home Relief Division, and who had been engaged in such work prior to August, 1936, when the original notices for the original examination were issued, a group totaling approximately 475 persons, also be admitted to the special examinations to be conducted on June 6 and 7, 1938. The Commission justifies its action by the provisions of rule V, section IV, paragraph 11 of the Rules of the Municipal Civil Service Commission, which provides as follows:

11. No candidate shall be given a second or special competitive test in connection with any examination held, ■unless it be shown to the satisfaction of the Commission, that his failure to take or complete such test was due to a manifest error or mistake for which the Commission is responsible, the nature of which shall be set forth in its minutes; or that such failure was due to compulsory attendance before a court or other public body or official having the power to compel attendance; or in the case of a promotion examination, that such failure was due to a physical disability incurred during the course of and within the scope of the employment of such candidate. No claim for a special test shall be allowed unless it be filed in writing with the Commission within fifteen days after the date of the error or the termination of the candidate’s disability and within sixty days after the date of said test.”

As a result of this proceeding the Appellate Division has affirmed the order of Special Term which restrained the Municipal Civil Service Commission from admitting ERB employees to the special examination. Petitioner does not appeal from so much of the order below which denied his prayer for relief in other respects, e. g., that all those who possess the preliminary requirements be admitted to the examination, and, therefore, the right of the Commission to grant the special, supplementary examination to the forty candidates who were not notified of the original examination is not now before this court.

The question, therefore, which is raised upon this appeal is whether (1) the Commission committed “ manifest error ” in excluding from the original examinations employees then engaged in doing similar work for the ERB, and (2) whether the Commission has taken appropriate action to remedy its previous error.

(1) No constitutional objection is raised concerning the power of the Commission to admit, by the waiver of preliminary requirements, provisional employees of the ERB to the examinations, and, therefore, the issue upon this phase is solely one of the intention of the Legislature. Admittedly, the Hendel Act prior to its amendment in 1937 is not free from doubt. However, the provision that due credit be given for ERB experience in relevant positions would be ineffective and a futile provision if provisional ERB employees were not eligible to take the examination. Further, the amendment of 1937 clarifies the intention of the Legislature so that if it were to be held that the Hendel Act did not in effect reach the same result as was explicitly provided for by the 1937 act, there would result the situation whereby a relatively small number of ERB provisional employees would be denied admission to civil service examinations with a waiver of preliminary requirements whereas most of their fellow provisionals have been or will be accorded that opportunity.

As noted, prior to the Hendel Act there were no civil service requirements under the statutes for these positions. The Hendel Act was the first change in the direction of introducing civil service in the administration of unemployment relief. The Legislature might have intended to oust ERB provisionals and admit only such as complied with all preliminary requirements or it might have intended that rigorous civil service requirements be set up as to all newcomers in the field, whereas those already employed, albeit not by means of the civil service, be granted an opportunity to enter the civil service system without possessing the prerequisites demanded of the newcomers. The clearly expressed intention in the amendment of this same section in the following year, so as to provide that all those previously employed in the Temporary Relief Administration, even for as short a time as three months, should be admitted to the competitive examination without regard to preliminary requirements, makes plain the legislative intention which was more doubtfully expressed in the earlier statute.

Petitioner, however, contends that whatever the construction of the statute, the error was not manifest,” since the meaning of the statute was not clear and either interpretation might be a reasonable one. Although the statute is admittedly ambiguous, the question of interpretation is one of law, and the action of the Commission must be judged, not according to the doubtful terms of the statute, but according to the statute as it is ultimately interpreted by the courts. The question as to whether an error is manifest must relate to the action of the Commission and not to a question of law.

(2) The rule of the Civil Service Commission, which it submits in justification of its action, provides that: No claim for a special test shall be allowed unless it be filed in writing with the Commission, within fifteen days after the date of the error * * * and within sixty days after the date of said test.” (Rule 5, § 4, ¶ 11.)

Petitioner contends that, although the Commission might otherwise have been authorized to act, its own rules bar the proposed remedy for failure to act promptly. But petitioner overlooks the fact that this section may reasonably be construed to apply only to the right of a candidate to obtain relief rather than to the action of the Commission taken upon its own initiative. Thus, a candidate, if he would claim his right, must do so within the time limits set forth in the rule; thereafter he no longer has the right to relief at the hands of the Commission, which may, however, at any reasonable time, act upon its own accord to correct errors which it acknowledges.

The notice to provisionals of the special supplementary test contained the following: “ If you are presently employed in the Home Relief Division, you are hereby advised that your right to ultimate certification from this list depends upon the outcome of the case of Britt v. Kern, which is now on appeal. If the decision in this case is affirmed you cannot be certified.”

Thereafter the decision in Matter of Britt v. Kern was affirmed by this court (279 N. Y. 701). Petitioner contends that, therefore, the notice of the special examination is vitiated by its own condition subsequent. Even assuming arguendo that the Commission has the power to give a notice of examination upon the condition that a certain case be decided favorably to the Commission, such is not the meaning of the purported condition in the notice of examination in question. From a reading of that notice, it is clear that the Commission did no more than to advise and to warn prospective applicants that there existed the danger, in the opinion of the Commission, that its attempt to grant the special examination might be of no avail to the candidates.

Petitioner contends that in any event the decisions of this court in Matter of Britt v. Kern (279 N. Y. 701) and in Matter of Ackerman v. Kern (281 N. Y. 87) have determined in his favor the questions now under review. These cases do not support the position of the petitioner. In Matter of Britt v. Kern the question in this court was only whether those who had been placed upon a civil service list were entitled to positions then being held by appointees outside of the civil service. In Matter of Ackerman v. Kern that same question was raised in regard to promotional examinations. In the latter case the major question discussed in the opinion relates to the appropriateness of the list promulgated by the Commission for the positions to which the petitioners sought appointment.

The orders should be reversed and the petition dismissed, with costs in all courts.

Lehman, Ch. J., Loughran, Rippey, Sears, Lewis and Conway, JJ., concur.

Orders reversed, etc.


text:
    In the Matter of Charles Rindone et al., Appellants, against Paul J. Kern et al., Constituting the Municipal Civil Service Commission of the City of New York, et al., Respondents.
    Argued January 23, 1940;
    decided March 5, 1940,

      Herman Morris for appellants.
    Under the provisions of chapter 822 of the Laws of 1936 appellants were without any other or further preliminary requirements eligible to enter the regular open competitive examinations of October, 1936. (Matter of Sheridan v. Kern, 166 Misc. Rep. 920; 255 App. Div. 57; Matter of O’Callaghan v. Finegan, 166 Misc. Rep. 556; 276 App. Div. 587.)

      William C. Chanler, Corporation Counsel (Stanley Buchsbaum and David DuVivier of counsel), for respondents.
    Whether or not petitioners are entitled to participate in a special competitive test for the position of attendant-messenger they are not entitled to retain their positions as against persons on appropriate and valid eligible lists. (Matter of Kraus v. Singstad, 275 N. Y. 302; Matter of Britt v. Kern, 279 N. Y. 701; Matter of Ackerman v. Kern, 281 N. Y. 87; Matter of Abrams v. Kern, 281 N. Y. 787.)

      Leopold V. Rossi for Alexander J. Gruber, Jr., et al., amicus curiæ.

    Persons on the open competitive eligible list of attendant-messenger should be certified and appointed to the positions which have been held by provisional appointees without examinations for more than four months. (Matter of Sheridan v. Kern, 255 App. Div. 57; Matter of Goss v. Rice, 160 Misc. Rep. 698; 249 App. Div. 895.)
   Finch, J.

This case differs from that of Matter of Staples v. Kern (282 N. Y. 205), decided herewith, in that the present proceeding is brought by persons now holding positions in the Home Relief Division of the Department of Welfare, City of New York, for which the lists of watchman-attendant and messenger-attendant are appropriate. The Municipal Civil Service Commission has issued notices of dismissal to the petitioners-appellants who are to be replaced with eligibles taken from the appropriate lists.

The question presented by the case at bar is as follows: If the Municipal Civil Service Commission may grant to the petitioners a special examination to rectify the error of the Commission in excluding the petitioners from the original examination, may these petitioners retain their present positions pending the outcome of the special examination?

In Matter of Kraus v. Singstad (275 N. Y. 302); Matter of Britt v. Kern (279 N. Y. 701), and Matter of Ackerman v. Kern (281 N. Y. 87) the principle has been enunciated that persons on appropriate lists are entitled to be appointed whenever the positions to which they seek appointment are being filled with those not selected in accordance with the Civil Service Law (Cons. Laws, ch. 7). The situation in the case at bar is different in two respects: First, the existing list may be considered incomplete because petitioners have been excluded from the examination as a result of which the list was promulgated. Second, it would be the more- orderly procedure to permit petitioners to retain their positions for the additional, relatively short time which the special examination will require than to oust them from their positions, appoint eligibles from the list as compiled thus far, and then reinstate such of the petitioners as pass the examination with ratings higher than those of the eligibles on the present list whom the Commission would appoint pending the results of the special examination. The inestimably greater administrative convenience which would result if the petitioners retained their positions for the time being is, therefore, a sufficient factor to warrant a reversal and thereby maintain the status quo until the completion of the special examination, after which time the Commission will be in a position to promulgate a complete list.

The orders should be reversed and the matter remitted to the Special Term to proceed in accordance with this opinion, without costs.

Lehman, Ch. J., Loughran, Rippey, Sears, Lewis and Conway, JJ., concur.

Ordered accordingly.


author: Lewis, J.

text:
    Thomas M. Cornbrooks, Appellant, v. Terminal Barber Shops, Inc., Respondent.

      Argued January 25, 1940;
    decided March 5, 1940.

      David Mackay and Jerome H. Adler for appellant.
    The evidence not only presented a question of fact as to defendant’s negligence, but supported the jury’s finding thereof. (Pratt v. Edwards & Son, 227 App. Div. 210; Bressler v. N. Y. Rapid Transit Corp., 270 N. Y. 409; Griffen v. Manice, 166 N. Y. 188; Storms v. Lane, 223 App. Div. 79; Welch v. Enright, 257 App. Div. 685; Parnell v. Holland Furnace Co., 234 App. Div. 567; 260 N. Y. 604.) Plaintiff’s medical testimony established that the use of the vibrator in the manner testified to by plaintiff was a competent producing cause of the injury sustained by him. All that defendant’s experts did was to testify that their opinion was otherwise. The question of fact thus raised was decided by the jury adversely to defendant and should not be disturbed upon appeal. (Stubbs v. City of Rochester, 226 N. Y. 516 )Ingersoll v. Liberty Bank of Buffalo, 278 N. Y. 1; Bernstein v. Greenfield, 281 N. Y. 77.)

      George W. Whiteside and Ralph D. Ray for respondent.
    Plaintiff failed to prove that the detachment of retina was caused by the vibrator. The verdict of the jury was based upon pure speculation as between a number of equally probable and possible causes. (Scharff v. Jackson, 216 N. Y. 598; White v. Lehigh Valley R. R. Co., 220 N. Y. 131; Kalinowski v. Ryerson & Son, 242 App. Div. 43; 270 N. Y. 532; Warner v. New York, O. & W. Ry. Co., 209 App. Div. 211; Searles v. Manhattan Ry. Co., 101 N. Y. 661; Yaggle v. Allen, 24 App. Div. 594; Ford v. McAdoo, 231 N. Y. 155; Laidlaw v. Sage, 158 N. Y. 73; Grant v. Pennsylvania & N. Y. Canal & R. R. Co., 133 N. Y. 657; Ruppert v. Brooklyn Heights R. R. Co., 154 N. Y. 90; Baudenbach v. Schwerdtfeger, 224 App. Div. 314; Antowill v. Friedmann, 197 App. Div. 230.) There is no proof of negligence. On the contrary, the uncontradicted evidence of the defendant establishes that there was no negligence. (Perry v. Rochester Lime Co., 219 N. Y. 60; McKinney v. N. Y. Consolidated R. R. Co., 230 N. Y. 194; Burke v. Witherbee, 98 N. Y. 562; Paul v. Consolidated Fireworks Co., 212' N. Y. 117; DeSalvo v.
      Stanley-Mark-Strand Corp., 281 N. Y. 333; Baffin v. Buffalo & Southwestern R. R. Co., 106 N. Y. 136.)
   Lewis, J.

The Appellate Division has reversed upon questions of law ” a judgment of the Supreme Court entered in favor of the plaintiff upon a jury’s verdict and has dismissed the complaint upon the merits. Accordingly, upon our review of the judgment entered upon the Appellate Division’s reversal our problem is to determine whether there was evidence which justified sending the case to the jury.” (Bernstein v. Greenfield, 281 N. Y. 77, 79.)

The plaintiff seeks damages for loss of the sight of his left eye which is alleged to have resulted from the negligent operation of an electric vibrator by a barber employed by the defendant.

On the morning of January 9, 1934, the plaintiff entered one of defendant’s shops in the city of New York where his hair was cut and he was shaved. Nothing was said by the plaintiff or by defendant’s barber as to the use of a vibrator on plaintiff’s face. However, while plaintiff was still reclining in the barber’s chair, with his eyes closed, he felt an electric vibrator being applied to his scalp. His testimony is: “ * * * I felt the barber start some sort of a vibrating machine on my head. He put it around on my hair, and then he brought it down over this [left] eye on to the eye, and down on to the cheek. * * * It was an unpleasant jarring sensation but there was no pain. Q. How many times did he pass that over the eye? A. Only the once, as he brought it from my head to my cheek.”

The plaintiff sensed no further discomfort until the afternoon of the same- day when he became aware of a dimness of vision in his left eye which became more pronounced during the three days which followed. Meantime he consulted a physician who recommended an eyewash and medical applications, which proved ineffective. On January 15th, less than a week after his experience in the defendant’s shop, the plaintiff consulted an ophthalmologist, who found the vision of his left eye reduced to ten per cent of normal and discovered that the retina had been torn and detached. The plaintiff immediately underwent prescribed hospital treatment and an operation, which failed to restore the injured retina.

In addition to proof of these facts we find in the record evidence from which the jury could have found that prior to the time when plaintiff went to the defendant’s shop his eyes were normal except for a moderate degree of nearsightedness which had been corrected by his use of glasses; that except for the fact that the retina in his left eye had been torn and detached and that the eye itself tested only ten per cent of its normal vision, plaintiff’s eyes were free from disease when he underwent an examination six days after the application of the vibrator by the defendant’s barber. Upon the question of causation and to meet proof that the most common causes of a retinal detachment are trauma, jarring or body strain, there was testimony by the plaintiff that he had undergone no unusual body strain and had. sustained no blow or jarring of any kind before or after the date when he went to defendant’s shop except on the occasion when a vibrator was applied to his head, face and left eye.

The inquiry upon the trial was thus narrowed to the question whether the proximate cause of the retinal injury which the plaintiff sustained between January 9th and 15th was a breach of duty owed to the plaintiff by defendant’s barber when, on the former date, he applied to the plaintiff’s eye an electric vibrator. As we view the evidence that question was one of fact upon the determination of which the following evidence became competent and material:

The plaintiff called two ophthalmologists, whose credibility was for the jury and whose qualifications as experts upon the structure and treatment of the eye were given at length. From those experts came testimony that, in addition to a direct blow, the type of pressure upon the eye which is most likely to cause a retinal detachment, especially when applied to an eye which is myopic or nearsighted, is a jarring or shaking impact the effect of which is to set up a vibrant pressure upon the vitreous humor or jelly-like substance which fills the eye and gives support to the retina. There is also expert testimony that a detachment of the retina is not accompanied by pain at the time of the injury nor does the injured eye register disorder for several hours.

Finally, in answer to hypothetical questions which we regard as proper in form and which were based upon record proof of material facts, the plaintiff’s experts testified that the application of an electric vibrator to plaintiff’s left eye on January 9th would have been a competent producing cause of the retinal detachment which was discovered during the examination of plaintiff on January 15th and from which blindness in that eye ensued.

We are not in accord with the assertion by defendant’s counsel that there was nothing before the trial court upon which the jury could have found that the defendant’s barber, in the exercise of reasonable care, should have anticipated resulting injury to the plaintiff from the manner in which the vibrator was applied. In addition to knowledge common to men of reasonable intelligence that the eye is one of the most sensitive and delicate organs of the human body, we find admissions by barbers called as experts, including the defendant’s own witnesses, that it was not the practice in shops of New York city to apply electric vibrators over a customer’s eyes. Indeed, there is testimony by one of defendant’s experts •— a barber whose experience covered forty years — that When the vibrator is applied to the surface of the forehead or the sides around the eye, no barber, in practice, will put his fingers, with a vibrator on his hand, against the eye or in the eye regions. Q. That would be a very bad thing to do, would it not? A. It would be.” At another point, in answer to a question by defendant’s counsel, the same witness said, The professional barber never touches his fingers over the eyeball. That is entirely out.”

It is also said that upon the present record the plaintiff failed to prove a cause of action against the defendant because the chain of causation, between the act of defendant’s barber on January 9th and the time when plaintiff’s injury was discovered on January 15th, is not intact. In support of that assertion the defendant cites testimony by its experts that the injury to plaintiff’s eye might have been caused by a jolt or jarring sustained in a subway tram, a taxicab or a bus which the plaintiff admits were the type of conveyances in which he rode on January 9th after leaving the defendant’s shop. But the significant fact is that the record contains no proof that plaintiff had been jarred or jolted at any time and, to the contrary, the plaintiff denied such an occurrence.

It is not enough that the defendant, in an effort to break the chain of causation, should prove that plaintiff’s injury might have resulted from other possible causes, nor is it required of the plaintiff that he eliminate by his proof all other possible causes. “ The existence of remote possibilities that factors other than the negligence of the defendant may have caused the accident, does not require a holding that plaintiff has failed to make out a prima facie case. It is enough that he shows facts and conditions from which the negligence of the defendant and the causation of the accident by that negligence may be reasonably inferred.” (Ingersoll v. Liberty Bank of Buffalo, 278 N. Y. 1, 7.)

Applying to this case the rule of Bernstein v. Greenfield (supra), we cannot say as matter of law on the record at hand that there was no evidence which justified sending the case to the jury. Bather do we find proof of facts from which the negligence of defendant’s employee is a fair inference and in addition there is proof of facts from which the jury with reason may have found a causal connection between defendant’s negligence and plaintiff’s injury.

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

Lehman, Ch. J., Loughran, Finch, Rippey, Sears and Conway, JJ., concur.

Judgment accordingly.


author: Conway, J. Lewis, J.

text:
    The People of the State of New York, Respondent, v. County of Westchester et al., Appellants.
    Argued January 15, 1940;
    decided March 5, 1940.

      William A. Davidson, County Attorney (John Lord O’Brian, Thomas M. Smith, Francis J. Morgan, Frank J. Claydon and William I. Morey of counsel), for appellants.
    The Hutchinson River Parkway is a park and not an ordinary public highway or driveway. (Matter of County of Westchester [Hutchinson River Parkway], 246 N. Y. 314; Westchester Electric R. R. Co. v. Westchester County Park Comm., 255 N. Y. 297.) The definition of public highway contained in the Vehicle and Traffic Law (Cons. Laws, ch. 71, § 2) has no application to the Hutchinson River Parkway. (Matter of County of Westchester [Hutchinson River Parkway], 246 N. Y. 314; Sebring v. Quackenbush, 120 Misc. Rep. 609; 214 App. Div. 758; Matter of Central Parkway, 140 Misc. Rep. 727; Brooklyn Park Comm. v. Armstrong, 45 N. Y. 234.) Local Law No. 5 was adopted by the county pursuant to the home rule provisions of the State Constitution. (Matter of Mooney v. Cohen, 272 N. Y. 33; Adler v. Deegan, 251 N. Y. 467; People ex rel. Wakeley v. McIntyre, 154 N. Y. 628; Cleveland v. City of Watertown, 222 N. Y. 159; People v. Ringe, 197 N. Y. 143; Gautier v. Ditmar, 204 N. Y. 20.) The Westchester County Park Commission and the county of Westchester are empowered to impose a reasonable fee for use of its park facilities, including the use of parkways. (Augustine v. Town of Brant, 249 N. Y. 198; Huse v. Glover, 119 U. S. 543; Kane v. New Jersey, 242 U. S. 160; Buck v. Kuykendall, 267 U. S. 307; People v. Kerr, 27 N. Y. 188; People ex rel. Cayadutta P. R. Co. v. Cummings, 166 N. Y. 110; Town of Oyster Bay v. Moses, 248 App. Div. 598; 273 N. Y. 631; Robia Holding Corp. v. Walker, 257 N. Y. 431.)

      John J. Bennett, Jr., Attorney-General (Henry Epstein, John C. Crary, Jr., and Jack Goodman of counsel), for respondent.
    Both in law and in fact the Hutchinson River Parkway is a public highway within the express general legislative prohibition against the imposition of tolls by local authorities contained in section 54 of the Vehicle and Traffic Law. (City of Buffalo v. Lewis, 192 N. Y. 193; People v. President & Trustees of Village of Ossining, 238 App. Div. 684; 264 N. Y. 574; People ex rel. McLean v. Flagg, 46 N. Y. 401; People ex rel. City of New York v.
      N. Y. Rys. Co., 217 N. Y. 310; Thompson v. Orange & Rockland Electric Co., 254 N. Y. 366; Davis v. Mayor of New York, 14 N. Y. 506; Perlmutter v. Greene, 259 N. Y. 327.) The alternative form of government prescribed by-chapter 617 of the Laws of 1937 for Westchester county and adopted by the people thereof contains no authorization for the abrogation of general State law or for the adoption of Local Law No. 5 imposing tolls on the Hutchinson River Parkway. (Jewish Consumptives’ Relief Society v. Town of Woodbury, 230 App. Div. 228; 256 N. Y. 619; Bradley v. Degnon Construction Co., 224 N. Y. 60; People ex rel. City of New York v. N. Y. Rys. Co., 217 N. Y. 310; Browne v. City of New York, 241 N. Y. 96; Robia Holding Corp. v. Walker, 257 N. Y. 431.)
   Conway, J.

In 1922 there was created by an act of the Legislature the Westchester County Park Commission. (L. 1922, ch. 292.) The Commission constructed and now maintains, except for certain portions hereinafter mentioned, the Hutchinson River Parkway. That parkway consists of a four-lane roadway for vehicular traffic, two lanes moving in each direction, and extends through the county of Westchester in a northeasterly direction for a distance of some sixteen miles. The roadway has been so constructed, by means of bridges, underpasses, overpasses and traffic circles, as not to cross at grade any highway or other public road or the right of way of any public utility. Certain portions of the parkway consisting of direct continuations and extensions thereof at either end, constructed in similar manner, extending into the city of New York at the southerly end and to the boundary line between the States of New York and Connecticut at the northerly end and there connecting with the Merritt Parkway extending into the State of Connecticut, were constructed by the State of New York with funds of the United States allocated pursuant to the Federal Emergency Relief Appropriation Act of 1935. These extensions total three and seven-tenths miles in length and are maintained by the Westchester County Park Commission, acting for the county of Westchester, in the same manner as its county parkways under agreements executed by it with the New York State Department of Public Works, Division of Highways. It is conceded, to quote the agreed statement of facts, that the parkway provides a through route for motor vehicles between the City of New York, the State of Connecticut, points in the County of Westchester and northern New York, and connects with through public highways at either end and at points along its route.”

On August 7,1939, the Board of Supervisors of the County of Westchester adopted a local law known as “ Local Law No. 5,” described as “ An act providing for the collection of tolls on the Hutchinson River Parkway between the Boston Post Road and Westchester Avenue, in the County of Westchester, authorizing the installation of the necessary toll station and equipment in connection therewith, and providing for the disposition of the tolls collected.” The toll booths and stations were erected upon the portion of the parkway constructed by the county of Westchester with county funds pursuant to the statute creating the Westchester County Park Commission. Vehicles traveling on the three and seven-tenths miles of extensions constructed with funds other than those of the county of Westchester may avoid the payment of the tolls by leaving the parkway before reaching the toll booths and traveling by more circuitous routes.

The State of New York contends that no power was conferred upon the county of Westchester or the Westchester County Park Commission to impose or collect a toll for the use of the Hutchinson River Parkway or any portion thereof.

The determination of that question depends upon whether the Hutchinson River Parkway is a public highway and whether section 4 of the Westchester County Charter (L. 1937, ch. 617) conferred upon the county the power to supersede section 54 of the Vehicle and Traffic Law (Cons. Laws, ch. 71), a general State statute.

The Vehicle and Traffic Law, in section 2, partially defines what constitutes a public highway. It reads as follows: “ ‘ Public highway ’ shall include any highway, road, street, avenue, alley, public place, public driveway or any other public way.” By the terms of the definition there are public highways not described by the named inclusions. Elliott on Roads and Streets, in section 3, page 4, gives the test for determining when a way is a highway, as follows: “ If a way is one over which the public have a general right of passage, it is, in legal contemplation, a highway, whether it be one owned by a private corporation or one owned by the government, or a governmental corporation, and whether it be situated in a town or in the country. No matter whether it be established by prescription or by dedication, or under the right of eminent domain, it is a highway if there is a general right to use it for travel. The mode of its creation does not of itself invariably determine its character, for this, in general, is determined by the rights which the public have in it.”

A four-lane roadway for vehicular traffic with two lanes moving in each direction and providing a through route for motor vehicles between the city of New York, the State of Connecticut, points in the county of Westchester and northern New York, and connecting with through public highways at either end and at points along its route, and over which the public has had a general right of passage since its construction and elongation, is clearly a highway. Landscaping the right of way does not make “ an ordinary park ” out of what is essentially a highway.

Even within the inclusions mentioned in the statute, the Hutchinson River Parkway is a “ public highway.” Certainly it is a “ public driveway ” and “ public way ” under the statute as broadened by the amendment of 1930 (L. 1930, ch. 756). The statute theretofore had read: “ ‘ Public highway ’ shall include any highway, country road, county highway, state highway, state road, public street, avenue, alley, park, parkway or public place in any county, city, borough, town or village, in this state.” The Legislature removed any restrictive mention of municipal subdivisions and extended the definition of “ public highway ” so as to include not only a “ public place ” but also a public driveway or any other public way.” It indicated the policy of the State to meet the conditions created and constantly altered and enlarged by the automobile to include every “ public way ” upon which an automobile might lawfully be operated by the public.

Indeed, the contention that the Hutchinson River Parkway is not a public highway would not be claimed to be serious except for the decision in Matter of County of Westchester (Hutchinson River Parkway) (246 N. Y. 314), where this court decided that this very parkway was not a street, avenue, highway, or road ” within the meaning of section 90 of the Railroad Law (Cons. Laws, ch. 49).

That case arose under an entirely different statute, having no concern with the use of the parkway by motor vehicles. It was there held that the Hutchinson River Parkway was not a street, avenue, highway, or road ” of a municipal corporation within the meaning and intent of section 90 of the Railroad Law requiring notice to be given by the municipal corporation to a railroad corporation across whose right of way such street or highway, was to be constructed. The Railroad Law contained no definition of the words street, highway, or municipal corporation. The parkway extended at that time through several municipalities, yet control and management was not vested in them, but in the Westchester County Parkway Commission. Judge O’Brien, writing for the court in that case (pp. 319, 320), said: “ Westchester county is literally a municipal corporation (Section 3, General Corporation Law [Cons. Laws, ch. 23]; section 3, County Law [Cons. Laws, ch. 11]; section 2, General Municipal Law [Cons. Laws, ch. 24]), yet we cannot forbear to reject the idea that when the Railroad Law deals with the laying out of new streets by municipal corporations, it ever contemplated a rural parkway through several townships as a street of a municipal corporation. It must, in reason, have intended to restrict the idea of a street to its ordinarily accepted meaning. It meant conventional streets in a city or village. Only by straining at technical definitions in other statutes which statutory definitions are wholly at variance with accepted meanings and are intended to be applied in the light of common sense and in accordance with the contexts of those statutes, can an extensive parkway system of a county be dragged within the inclosure of section 90 of the Railroad Law and be transformed into a street.” (Italics supplied.)

In other words, it was decided that the meaning and intent of the section of the Railroad Law there considered was not applicable to such an extended rural parkway, that a county was not a municipal corporation within its meaning, and that, since the Railroad Law did not contain its^own definition of highways, the definition suitable was that contained in the Westchester County Park Commission Act.

Even more important, the opinion spoke of times and conditions antedating the determination that it was expedient or necessary to construct the continuations and extensions of the parkway so as to extend it into the city of New York and to the Connecticut line so as to join the Merritt Parkway of that State — continuations and extensions, incidentally, made under the provisions of the Federal Highway Act (U. S. Code, tit. 23), containing in section 9 the express condition that no tolls be charged on highways constructed thereunder. While no point of this restriction is made here, in view of the location of the toll booths and stations, it has strong bearing on the present character of the . parkway when considered in connection with the provisions of the Vehicle and Traffic Law and the situation obtaining at the time of the decision in Matter of County of Westchester (Hutchinson River Parkway) (supra), in 1927. The language of the opinion did not establish or fix the then conditions so as to make them unchangeable and may not now be held applicable to entirely different ones.

The Vehicle and Traffic Law is a general statute governing the use of motor vehicles. It makes no distinction between city, town and country roads or whether they run through parks or constitute part of a park system. The test would appear to be whether the public has a general right of passage in motor vehicles. If it have, then that is the measuring rod to be applied under the statute in determining the right of the public to the free use of all public passages or ways, however they may be termed

Section 54 of that act provides:

§ 54. Local ordinances prohibited. Except as otherwise provided in this chapter, local authorities shall have no power to pass, enforce or maintain any ordinance, rule or regulation requiring from any owner of a motor vehicle or motor cycle, or from any operator or chauffeur to whom this chapter is applicable, any tax, fee, license or permit for the use of the public highways, or excluding any such owner, operator or chauffeur from the free use of such public highways, * *

Section 2, subdivision 19, defines “ Local authorities ” to include all officers, boards, committees and other public officials of counties. The clear purpose of the statute was to prevent local tolls for the use by automobiles of any public place in the State where they may properly be operated.

Once it becomes manifest that the Hutchinson River Parkway is a public highway, then a reading of section 54 of the Vehicle and Traffic Law indicates that the passage of any law such as Local Law No. 5 is proscribed.

No power to abrogate the prohibition was conferred upon the county by section 4 of the Westchester County Charter. That section reads as follows: The enumeration of particular powers by this act shall not be deemed to be exclusive, but in addition to the powers enumerated or implied herein or appropriate to the exercise of such powers, the county shall have and may exercise all powers which under the constitution of the state of New York it would be competent for this act specifically to enumerate, and all powers necessarily incident or fairly to be implied, not inconsistent with the provisions hereof * *

This must be construed as a general grant of local administrative power and not as authority permitting the abrogation of a general State law forbidding a tax, fee, license or permit for the use of the public highways.

In Jewish Consumptives’ Relief Society v. Town of Woodbury (230 App. Div. 228; affd., 256 N. Y. 619) Presiding Justice Lazansky said (at p. 234): “ The authority of a municipality to abrogate State law is never implied or inferred. It is only derived from express grant, never from a general grant of power. A State policy may not be ignored by a municipality unless it is specifically empowered so to do in terms clear and explicit.”

In People ex rel. Kieley v. Lent (166 App. Div. 550; affd., 215 N. Y. 626) the court said: “ The intent that municipal corporations by ordinance can supersede the State law will not be inferred from general grants of power, nor will such authority be held to exist as an implied or incidental right. (Dillon, Mun. Corp. [5th ed.], § 632.) As all municipal authority comes from the Legislature, the provisions of municipal charters, however broad, are subject to such restrictions as may be imposed by general laws.” Since, then, the Hutchinson River Parkway is a public highway and local authorities are without power to levy tolls thereon, Local Law No. 5 is invalid.

The judgment should be affirmed, without costs.

Lewis, J.

(dissenting). I dissent from the decision about to be made which is based upon the conclusion that Hutchinson River Parkway is a public highway for the use of which the exaction of a motor vehicle toll is prohibited by section 54 of the Vehicle and Traffic Law.

It must be admitted at the outset that Hutchinson River Parkway — to which, for convenience, I shall refer as the parkway — is so located and has been so improved that it may be reached at either end and at intermediate points by through motor traffic which formerly may have used the Boston Post ‘Road and other through routes between the city of New York and points eastward in the New England States. I do not believe, however, that the plaintiff’s case is helped by that fact.

The parkway is not built along an old, established public highway, but has been constructed on new location through lands acquired by Westchester county solely for park purposes. Upon this four-lane motorway traffic risks at intersections have been reduced by separating the grades of the intersecting roads and along its total length the parkway passes through park lands beautified by landscaping and planting of rare quality. Thus constructed the parkway does not lose its character as a park road because motorists in great number, some of whom are bound for distant points, may choose to take advantage of a county park facility which serves for sixteen miles to make of motoring a recreation.

We should not disregard the fact that it was to promote health and outdoor recreation — in line with an enlightened appreciation of the social responsibilities of both State and local agencies — that the defendant Westchester County Park Commission was created by the Legislature (L. 1922, ch. 292) and later constructed the parkway with the control of which we are now concerned. Having already entered upon a broad program for the creation and maintenance of State parks in the interest of the health and welfare of the People of the State, the Legislature granted to the defendant Park Commission, as a statutory agency of Westchester county, a charter which authorized the acquisition of land for county parks for the declared purpose of promoting public health, public welfare, education, * * * recreation, * * * or amusement.” (L. 1922, ch. 292, §§ 3, 10.) By section 3 of the same charter the Legislature defined a park ” as including all parkways ” and “ boulevards"” with entrances and approaches thereto and any “ streets ” or roads ” which pass through such park. It would seem clear, therefore, that in authorizing the defendant Commission to acquire, improve and manage parks and to build roads, boulevards and parkways, the Legislature anticipated and intended that traffic from connecting highways would take advantage of the improved park facilities. Otherwise how could the parkway be put to use? How could it serve to accomplish the legislative purpose of promoting public health and recreation?

As a further indication that the Legislature did not intend the parkway to be a public highway subject to the regulatory prohibitions of section 54 of the Vehicle and Traffic Law, section 17 of the defendant Commission’s charter gives to it the “ exclusive ” power, “ notwithstanding the provisions of any general or special law to the contrary,” to adopt rules, regulations and ordinances governing the use of parkways and the control of traffic through the same. In Maltby v. County of Westchester (267 N. Y. 375, 378), this court interpreted the legislative grant of power to the present defendant Park Commission as giving to it “ * * * the sole and exclusive control and management of all streets and highways and bridges within the limits of any park under its jurisdiction, with the right and power to alter or discontinue them, and may make rules and regulations and ordinances for the use of the park.” It also appears from the case last cited that when the State undertook at State expense to connect outside highway routes with the defendant county’s parkways, it did not treat the parkways as State highways but accomplished that purpose by means of legislation which made the present defendant Park Commission a temporary agent of the State.” (See Paige v. State of New York, 269 N. Y. 352, 356; L. 1932, ch. 559, § 1.)

Furthermore, on two prior occasions this court has been required to determine as a matter of law whether this particular parkway was a park facility or a public highway, and in each instance it has ruled it was the former. In Matter of County of Westchester (Hutchinson River Parkway) (246 N. Y. 314) the opinion by Judge O’Brien points to characteristics peculiar to the parkway and refers specifically to the fact that in the charter of the defendant Park Commission the Legislature defined park ” as including parkways.” This definition and the consideration of other facts led the court to conclude that The Hutchinson River Parkway does not seem to us to be ' a street, avenue, highway or road ’ within the meaning of section 90 of the Railroad Law. * * * It is a park ” (p. 318). I do not share the view of a majority of the court that the statement last quoted was not determinative of issues there decided. The point there in controversy required the court to determine whether the parkway was a street, avenue, highway or road within the meaning of section 90 of the Railroad Law. In doing so it gave consideration not only to the defendant Park Commission’s charter but also to the physical characteristics of the parkway itself as finally constructed. The court appears to have had no doubt as to what was determined in the Westchester County case (supra) when later, in Westchester Electric R. R. Co. v. Westchester County Park Commission (255 N. Y. 297), it reiterated its ruling upon that point in the introductory statement of the opinion: “ The Hutchinson River Parkway, which is a park [citing Matter of County of Westchester, suprd], was laid out by defendant Commission * * * ” (p. 299).

If, therefore, as I believe, the parkway is a park facility — not a public highway within the prohibition of section 54 of the Vehicle and Traffic Law — there remains for consideration the question whether the Board of Supervisors of Westchester county had the power to enact Local Law No. 5, which makes provision for the collection of motor vehicle tolls for the use of the parkway.

The authority of Westchester county, acting through its agent, the defendant Park Commission, to acquire lands for park purposes and to build parkways, has not been questioned. Nor can there be doubt that, in offering to public use the wide variety of park facilities which that county now affords and in the maintenance and control of those facilities, the county acts in a proprietary capacity — not governmental. What was said by Judge Pound in Augustine v. Town of Brant (249 N. Y. 198) in reference to the maintenance and control of a park by a township applies with equal force to the defendant county’s function in its control of the parkway (p. 204): The establishment of town parks is not a public duty imposed upon the town and the town does not act as an agent of the State when it avails itself of the privilege of maintaining them. * * * When the town assumes the authority to own and maintain parks, it goes outside the political power of a local subdivision of the State to engage in a quasi private undertaking ” (p. 205). (Cf. Collentine v. City of New York, 279 N. Y. 119, 124.)

If, therefore, Westchester county’s function in the construction and maintenance of the parkway was in character proprietary, it follows, as the term implies, that the county in its private capacity — as proprietor — has the power to control the use of its parkways free from State control. If proof is needed that the State has formally recognized the defendant county’s freedom from the prohibition against the collection of tolls contained in section 54 of the Vehicle and Traffic Law, I point again to section 17 of the defendant Park Commission’s charter (L. 1922, ch. 292, § 17), by which the Legislature acknowledged the Park Commission’s “ exclusive power to adopt and enforce rules, regulations or ordinances governing the use of said park * * * and traffic in and through the same.” The significant fact is that in its declaration of “ exclusive power ” the Legislature inserted the provision that it existed notwithstanding the provisions of any general or special law to the contrary.”

In addition to the implied power of the defendant county, functioning in its proprietary capacity, to collect tolls as an incident to the control of the parkway, I find in various statutes a delegation of power • — if such a delegation of power be needed — broad enough to authorize the exercise of authority which the Board of Supervisors invoked when Local Law No. 5 was adopted. The charter granted t-o the county of Westchester by chapter 617 of the Laws of 1937 is the Legislature’s answer to a demand by the people

of that county for a broader measure of home rule in accord with sections 26 and 27 of article III of the Constitution, effective in 1937. (State Const. of 1938, art. IX, §§ 2, 3, 4.) When the new county charter became effective on January 1, 1939, section 69 thereof specifically continued the defendant Park Commission as a county agency and authorized it to exercise such powers and perform such duties as are conferred or imposed on it by law, not inconsistent with the provisions of this act * * Previously, by section 4 of chapter 292 of the Laws of 1922, the Legislature had declared that “ The acquiring, improving and embellishment of parks under the jurisdiction of the park commission or lands acquired as in this act provided, together with the maintenance thereof and all incidental proceedings in connection therewith for the purpose of carrying out the provisions of this act are hereby declared to be for a county purpose.”

Such a legislative declaration of purpose was lacking in Adler v. Deegan (251 N. Y. 467), where the application of the constitutional amendment giving home rule to cities was involved. Despite that lack, however, the concurring opinion by Chief Judge Cardozo states (p. 484): Many welfare measures are city affairs solely. If a city lays out a park * * * it is exercising the police power, and is acting for the welfare of its inhabitants, yet acting in a matter that is distinctively its own affair, a matter that is bound up with its own business, its own finances, its own corporate activities.”

Treating the construction, management and control of the parkway as a county purpose ” within the legislative declaration quoted above, and assuming that the Legislature itself could authorize by statute the collection of motor tolls for the use of the parkway (Robia Holding Corp. v. Walker, 257 N. Y. 431, 436, 437; Town of Oyster Bay v. Moses, 248 App. Div. 598; affd., 273 N. Y. 631; Huse v. Glover, 119 U. S. 543, 548), I find in the defendant county’s charter (§4) power delegated by the Legislature broad enough in scope to authorize the enactment of Local Law No. 5. That section provides:

§ 4. Enumerated powers not exclusive. The enumeration of particular powers by this act shall not be deemed to be exclusive, but in addition to the powers enumerated or implied herein or appropriate to the exercise of such powers, the county shall have and may exercise all powers which under the constitution of the state of New York it would be competent for this act specifically to enumerate, and all powers necessarily incident or fairly to be implied, not inconsistent with the provisions hereof. * * *.”

There is no need to extend beyond their fair intendment the Legislature’s words of grant last quoted. The delegation of power is in broad terms — broad enough, as I believe, to authorize the enactment of the local law here in question. It is not for us to question as a matter of public policy the extent of power so delegated. The wisdom or unwisdom of the statute is a matter for the Legislature and not for the courts, which cannot legitimately question the policy or condemn the effects of any law consistent with the organic law of the State and nation.” (Gautier v. Ditmar, 204 N. Y. 20, 30.)

The judgment entered upon the decision of the Appellate Division should be reversed and judgment granted in favor of the defendants upholding the validity of Local Law No. 5, with costs.

Lehman, Ch. J., Loughran and Sears, JJ., concur with Conway, J.; Lewis, J., dissents in opinion, in which Finch and Rippey, JJ., concur.

Judgment affirmed.