text:
    Edward E. Shepard et al., Respondents, v. Village of Skaneateles et al., Appellants.
    Argued November 18, 1949;
    decided December 29, 1949.

      Melvin A. Weeks for appellants.
    The amendment is presumed to have been adopted for lawful reasons and to be constitutional. Confiscation, discrimination, or unreasonableness are not proved merely by showing that more profit can be had from mercantile than from residential use. Respondents did not have a vested right to have their property remain in the mercantile zone merely because it was so zoned in 1926. Change of conditions and existing use at a zone line are reasonable causes for amendment of the fine. The fact that the zone line was amended at one place and as to one property only is not, of itself, evidence of unreasonableness, discrimination or confiscation. The test as to whether the amendment had a substantial relation to public health, morals, safety or welfare of the community is to be applied to the ordinance as a whole, as it stands after the amendment, and, if by such test the ordinance is in accordance with a comprehensive plan and meets the standards set by the Legislature, the amendment itself cannot properly be held not to have the required relationship. (Brown v. Village of Owego, 260 App. Div. 328, 284 N. Y. 655; Arverne Bay Constr. Co. v. Thatcher, 278 N. Y. 222; Village of Euclid v. Ambler Realty Co., 272 U. S. 365; Curtiss-Wright Corp. v. Village of Garden City, 185 Misc. 508, 270 App. Div. 936, 296 N. Y. 839; Matter of Otto v. Steinhilber, 282 N. Y. 71; Sweet v. Campbell, 282 N. Y. 146.)

      M. Harold Dwyer and James A. Martin for respondents.
    I. The area surrounding respondents’ premises is essentially mercantile. II. The zoning ordinance is unreasonable and confiscatory. (Dowsey v. Village of Kensington, 257 N. Y. 221; Matter of Eaton v. Sweeny, 257 N. Y. 176; Arverne Bay Constr. Co. v. Thatcher, 278 N. Y. 222; Devore v. Blake, 285 N. Y. 826; Evanns v. Gunn, 177 Misc. 85, 262 App. Div. 865.)
   Fuld, J.

An amendment to a zoning ordinance of the Village of Skaneateles converted the área in which plaintiffs’ property was located from mercantile to residential uses. Asserting that the change was unreasonable and confiscatory, plaintiffs sought a declaratory judgment declaring that the amendment was unconstitutional and void. The court at Special Term, concluding that the ordinance as amended was valid, dismissed the complaint on motion of defendants, the village and its board of trustees. The Appellate Division reversed and directed entry of a declaratory judgment in plaintiffs’ favor.

Upon parties who attack an ordinance such as the present rests the burden of showing that the regulation assailed is not justified under the police power of the state by any reasonable interpretation of the facts. “ If the validity of the legislative classification for zoning purposes be fairly debatable, the legislative judgment must be allowed to control.” (Village of Euclid v. Ambler Realty Co., 272 U. S. 365, 388; see, also, Town of Islip v. Summers Coal & Lbr. Co., 257 N. Y. 167, 169, 170; Matter of Wulfsohn v. Burden, 241 N. Y. 288, 296-297.)

Zoning laws, enacted as they are to promote the health, safety and welfare of the community as a whole (see Village Law, § 175), necessarily entail hardships and difficulties for some individual owners. No zoning plan can possibly provide for the general good and at the same time so accommodate the private interest that everyone is satisfied. While precise delimitation is impossible, cardinal is the principle that what is best for the body politic in the long run must prevail over the interests of particular individuals. (See Baddour v. City of Long Beach, 279 N. Y. 167, 174-175; Matter of Fox Meadow Estates, Inc. v. Gulley, 233 App. Div. 250, affd. 261 N. Y. 506; Matter of Wulfsohn v. Burden, supra, 241 N. Y. 288, 302; Village of Euclid v. Ambler Realty Co., supra, 272 U. S. 365, 388-389.) There must, however, be a proper balance between the welfare of the public and the rights of the private owner. The zoning regulation — to be reasonably related “ to the preservation of the scheme and purpose as a whole ’ ’ — may neither deprive an individual owner “ of all beneficial use of his property ” (Matter of Eaton v. Sweeny, 257 N. Y. 176, 182-183) nor impose upon him a special hardship unnecessarily and unreasonably.” (Dowsey v. Village of Kensington, 257 N. Y. 221, 226.) And, if strict enforcement Vould cause unnecessary damage or hardship, the aggrieved owner must be given an opportunity to obtain a variance. (See Matter of Otto v. Steinhilber, 282 N. Y. 71, 75; Dowsey v. Village of Kensington, supra, 257 N. Y. 221, 229.)

In the light of these principles, the conversion of plaintiffs’ property from mercantile to residential was fully justified.

Skaneateles was zoned for the first time in 1926 and divided into residential, industrial and mercantile use districts. At that time, plaintiffs’ land was located in the business section. In 1930, plaintiffs applied for a permit to erect a gas station on their plot, but it was refused. Influenced by a belief that a gas station at that point would be highly undesirable, the board, after a hearing, amended the zoning ordinance in 1935 solely to effect a shift of plaintiffs’ property from the mercantile to the residential area. The zoning ordinance passed in 1943 — the subject of the present attack — confirmed the 1935 amendment.

In 1926, as in 1935 and as at present, plaintiffs’ land was surrounded on three sides by residential property. Indeed, it was the only property designated as mercantile west of the main dividing line between the two zones, with its eastern border alone contiguous to the mercantile area. And that was at a point, incidentally, where the street on which it fronted (Genesee Street) made a 35-degree turn to the right, with the result that plaintiffs’ lot did not even face squarely on that thoroughfare with any of the other business sites. All things considered, as the court at Special Term observed, there was ample basis for its location in the residential district in the first instance. Since, outside of the general increase in traffic that accompanies the advance of motor travel, there were no changes in the locality tending to render it more commercial (cf., e.g., Devore v. Blake, 285 N. Y. 826), the reasons which would have supported an initial designation of plaintiffs’ property as residential now operate to justify the amendment to accomplish that result. Furthermore, the fact that there are nonconforming uses in the residential area near plaintiffs’ property which were there before 1926 does not require the board to retain that land of plaintiffs in the business zone. (Cf. People ex rel. Fordham Manor Ref. Church v. Walsh, 244 N. Y. 280.)

Nor is the hardship imposed upon plaintiffs by the amendment so severe as to require its invalidation. In the first place, the uses permitted as residential under the ordinance are extremely liberal, and the evidence that plaintiffs’ lot was unsuitable for any of them virtually nonexistent; in the second place, provisions of the Village Law permit a variance if “ unnecessary hardship ” results from “ carrying out the strict letter of such ordinance ” (Village Law, § 179-b). A possible depreciation in value is not of too great significance, for the pecuniary profits of the individual are secondary to the public welfare. (See Matter of Wulfsohn v. Burden, supra, 241 N. Y. 288, 302.) Either plaintiffs’ property or the land near it would suffer depending on the board’s action, and the board could properly find that the loss sustained by plaintiffs would be offset by the gain to the community in general.

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

Loughban, Oh. J., Conway, Desmond, Dye and Bromley, JJ., concur; Lewis, J., taking no part.

Judgment accordingly.


source: Caselaw Access Project

author: Desmond, J.

license: Public Domain

text:
    The People of the State of New York, Respondent, v. Paul Singer, Appellant.
    Argued November 21, 1949;
    decided December 29, 1949.

      Edward H. Levine and Arnold D. Roseman for appellant.
    I. The guilt of appellant was not established b'eyond a reasonable doubt. (People v. Taddio, 292 N. Y. 488; People v. Lewis, 275 N. Y. 33; People v. May, 290 N. Y. 369; People v. Galbo, 218 N. Y. 283; People v. Weiss, 290 N. Y. 160; People v. Razezicz, 206 N. Y. 249; People v. Suffern, 267 N. Y. 115; People v. Fitzgerald, 156 N. Y. 253.) II. Reversible error was committed by the trial court in receiving into evidence plaintiff’s medical exhibits and in permitting them to be taken into the jury room while the jury was deliberating. (People v. Marendi, 213 N. Y. 600; People v. Mleczko, 298 N. Y. 153; People v. Zackowitz, 254 N. Y. 192; People v. Corey, 148 N. Y. 476; People v. Silverman, 252 App. Div. 149; Allen v. Stokes, 260 App. Div. 600; Smith v. Lehigh Valley R. R. Co., 177 N. Y. 379; People v. Garrett, 285 N. Y. 810; People v. Cullen, 290 N. Y. 667; People v. Gillette, 191 N. Y. 107.) III. The trial court committed reversible error when it received into evidence over objection a so-called prior consistent statement of the accomplice. (Robb v. Hackley & Welton, 23 Wend. 50; People v. Edwards, 282 N. Y. 413; People v. Katz, 209 N. Y. 311; People v. Collier, 141 App. Div. 111; Dechert v. Municipal Elec. Light Co., 39 App. Div. 490; Hill v. Erie R. R. Co., 225 App. Div. 19.) IV. The accomplices were not corroborated and the trial court committed reversible error fin its charge on the law of corroboration. (People v. Corbisiero, 290 N. Y. 191; People v. Nitzberg, 287 N. Y. 183; People v. Maione, 284 N. Y. 423; People v. Kress, 284 N. Y. 452; People v. Mullens, 292 N. Y. 408; People v. Hooghkerk, 96 N. Y. 149.)

      Frank 8. Hogan, District Attorney (Whitman Knapp and Peyton H. Moss of counsel), for respondent.
    I. Defendant’s guilt was proven beyond a reasonable doubt. (People v. Place, 157 N. Y. 584; People v. Harris, 136 N. Y. 423.) II. The accomplice testimony was sufficiently corroborated. (People v. Goldstein, 285 N. Y. 376; People v. Dixon, 231 N. Y. 111; People v. Mayhew, 150 N. Y. 346; People v. Elliott, 106 N: Y. 288.) III. The charge as to corroboration was proper. (People v. Henderson, 298 N. Y. 462; People v. Goldstein, 285 N, Y. 376; People v. Dixon, 231 N. Y. 111.) IV. The medical exhibits were properly received in evidence. (People v. Gillette, 191 N. Y. 107; Evans v. United States, 122 F. 2d 461; Miranda v. State, 42 Ariz. 358; State v. Sweet, 101 Kan. 746; People v. Cullen, 290 N. Y. 667; People v. Garrett, 285 N. Y. 810; People v. Harris, 219 Cal. 727; Commonwealth v. Di Stasio, 294 Mass. 273.) V. The prior consistent statement of the accomplice was properly received. (People v. Edwards, 282 N. Y. 413.)
   Desmond, J.

Defendant, convicted of manslaughter in the first degree (Penal Law, § 1050) and abortion (Penal Law, § 80) argues in this court: first, that his guilt was not established beyond a reasonable doubt; second, that there was neither sufficient corroboration of the accomplice testimony nor a proper charge by the court on the subject; third, that it was error to allow the exhibition before the jury of mangled parts of a fetus and parts of the organs of the aborted woman; and, fourth, that it was error to receive into evidence proof of a prior extrajudicial consistent statement ” made by the accomplice-witness Schneidewind. We reject each of those contentions, but find it necessary to comment on the fourth point, only.

Schneidewind, at the trial, gave testimony most damaging to defendant. When cross-examined, he admitted that when he (Schneidewind) had first appeared before the grand-jury as a witness, on November 12, 1947, four weeks after the abortion, he had made statements utterly at variance with his trial testimony, and not inculpating defendant at all. Previously, when giving his evidence in chief at the trial, he had told the jury that he, with defendant and another accomplice had, just after the abortion, gotten together and concocted the false story. Later, during Schneidewind’s cross-examination, it was brought out that after his first (November 12, 1947) grand jury appearance, he was taken into custody and that he then went again before the grand jury on November 14, 1947, and that on that second occasion he recanted, and gave the grand jury the same version of the occurrence that he related in his direct testimony on this trial. During this cross-examination of Schneidewind, defense counsel brought out the fact that Schneidewind, although guilty on his own story, had not been indicted. By those and other questions, the defense at least suggested to the jury that Schneidewind hoped for clemency for himself, and that his trial testimony was a fabrication, as a reward for which he hoped to go unwhipped of justice.

The prosecutor then called as a rebuttal witness the father of the victim of the abortion. Over objection, the father was permitted to tell the jury that, on the day following the abortion (thirteen months before the trial), Schneidewind had told the father the same things that he told the jury on this trial, as to his (Schneidewind’s) and defendant’s complicity in the abortion.

Defendant argues to us that this rebuttal testimony of the father was an illegal buttressing of Schneidewind’s sworn trial testimony by a showing of previous extrajudicial, unsworn statements of like import. The contention is that this rebuttal did not come within the exception to the hearsay rule, stated by this court in Ferris v. Sterling (214 N. Y. 249, 254), People v. Edwards (282 N. Y. 413, 416) and Crawford v. Nilan (289 N. Y. 444, 450) as follows: *£ where the testimony of a witness is assailed as a recent fabrication, it may be confirmed by proof of declarations of the same tenor before the motive to falsify existed.” Defendant says that two essential bases for the application of that exception are missing here: first, in that Schneidewind’s trial testimony was not claimed by the defense to have been a recent fabrication, since it was the same story he had told before the grand jury a year earlier, and also at an earlier trial of this very ease; and, second, in that, according to defendant, there was no sufficient accusation or showing here of any motive to falsify, arising after the disclosure to the father and before the first telling of Schneidewind’s present version of the facts. We think both conditions necessary for the use of the exception, were fairly present here.

Of course, if the word “ recent ” in this court’s formulation of the exception, in the cases above cited, means that the witness ’ statements at the trial must have been assailed as having been fabricated at some point just before the trial, this was no case for applying the exception. But we think that “ recent ” as so used, has a relative, not an absolute meaning. It means, we think, that the defense is charging the witness not with mistake or confusion, but with making up a false story well after the event (see Commonwealth v. Rethovitz, 222 Mass. 245, 250). “"Recently fabricated ” means the same thing as fabricated to meet the exigencies of the case (see Judge Werner’s discussion in People v. Katz, 209 N. Y. 311, at p. 340). Judge Hand, in Di Carlo v. United States (6 F. 2d 364, 366), after careful examination of authorities and reasons, stated the exception thus: “ that, when the veracity of a witness is subject to challenge because of motive to fabricate, it is competent to put in evidence statements made by him consistent with what he says on the stand, made before the motive arose.” We think that well describes the situation in this case, and that the father’s evidence was properly received, to refute the inference urged by the defense, that Schneidewind was testifying at the trial under the influence of a motive which prompted him to falsify. Defense counsel was obviously trying to get the jury to conclude that Schneidewind was motivated by a hope, still strong at the time of trial, that he would be favorably treated because of his co-operation with the prosecutor. Of course, in this instance, Schneidewind, before the girl’s father was called to the witness stand, had told the exculpating story at least twice and the damaging story at least three times, but nonetheless, it was the defense’s position that he had made up the latter to save his own skin, and so the exception came into play, and it was for the jury to choose between the two versions, after a full disclosure of all the times and occasions on which each had been put forward by Schneidewind. All this accords with the view anciently expressed in Evans ’ Pothier on Contracts (Yol. II, 1826, pp. 251-252) that the idea of fabrication may be rebutted by circumstances shewing that the motive upon which it is supposed to have been founded, could not have had existence at the time when the previous relation was made, and which therefore repel the supposition of the fact related being an afterthought or fabrication ”. (See, also, King v. Parker, decided in 1783, and annotated in 3 Douglas 242, 244, and 1 Starkie, Law of Evidence [1826], p. 148.)

The testimony of the girl’s father, when received, illustrated the justice and soundness of the exception, since the father told the jury that Schneidewind, at the hospital, when the girl was near death, disclosed his own and defendant’s guilt, in urging the father to dismiss defendant as his daughter’s physician.

The judgment should be affirmed.

Lotjghran, Ch. J., Lewis, Conway, Dye, Fuld and Bromley, JJ., concur.

Judgment affirmed.


text:
    Isidor Wasservogel et al., as Trustees, Landlords, Appellants, v. Herman Meyerowitz, Tenant, Respondent. Isidor Wasservogel et al., as Trustees, Landlords, Appellants, v. Leon Dornbush, Tenant, Respondent. Isidor Wasservogel et al., as Trustees, Landlords, Appellants, v. Danny Silverman, Tenant, Respondent. Isidor Wasservogel et al., as Trustees, Landlords, Appellants, v. Maxwell Becker, Tenant, Respondent.
    Argued October 4, 1949;
    decided December 29, 1949.

      Barnet Kaprow and Bertram A. Levine for appellants.
    I. The tenants are liable for the retroactive rent increases for the period commencing after the expiration date of their respective leases, to wit, during the period of their statutory tenancies. II. The Federal Housing Expediter’s exercise of the power to order retroactive rent increases may not be questioned and the statute and the regulations, pursuant to which the power was exercised, are constitutional. (Woods v. Stone, 333 U. S. 472; Bowles v. Lake Lucerne Plaza, 148 F. 2d 967, 326 U. S. 726; Yakus v. United States, 321 U. S. 414; Schmoll, Inc., v. Federal Reserve Bank, 286 N. Y. 503; Bowles v. Willingham, 321 U. S. 503; New York City Housing Authority v. Awant, 183 Misc. 823; Huber v. Ruby, 187 Misc. 967; Blaine v. Clark, 188 Misc. 924; Bowles v. Carothers, 152 F. 2d 603; Markbreiter v. Woods, 163 F. 2d 993; United States v. New York Central R. R. Co., 279 U. S. 73.) III. During the terms of the leases, the escalator clause bound the tenants to pay the higher rental retroactive to the date of “ allowance ” of the increases, to wit, the “ effective ” date noted in the orders of the rent control office. (United States v. New York Central R. R. Co., 279 U. S. 73; Kramshor Realty Corp. v. Basile, 191 Misc. 584.)

      Leo Isacson, Benjamin Weinberger, Murray A. Gordon and Barney Rosenstein for respondents.
    I. The courts of this State have jurisdiction to inquire into the validity of the regulations here in issue and the order issued pursuant thereto. (Woods v. Stone, 333 U. S. 472; Yakus v. United States, 321 U. S. 414; Bowles v. Lake Lucerne Plaza, 148 F. 2d 967, 326 U. S. 726; Lockerty v. Phillips, 319 U. S. 182; Regan v. Kroger Grocery & Baking Co., 386 Ill. 284.) II. The regulation of the Housing Expediter providing for a retroactive rent increase without notice to the tenant is invalid. (Matter of Lyons v. Goldstein, 290 N. Y. 19; Matter of Citron v. O’Shea, 244 App. Div. 158; Morgan v. United States, 304 U. S. 1; Market St. Ry. Co. v. Railroad Comm, of State of California, 324 U. S. 548; Paulsen v. City of Portland, 149 U. S. 30; Toombs v. Citizens Bank of Waynesboro, 281 U. S. 643; Chew Hoy Quong v. White, 249 F. 869.) III. The landlord is precluded by the escalator clauses in the leases from recovering retroactive rent arrears. (455 Seventh Ave., Inc., v. Hussey Realty Corp., 295 N. Y. 166.)
   Desmond, J.

These are four summary proceedings commenced in the Municipal Court, New York City, in each instance to evict a tenant for alleged nonpayment of rent. In each case, the sole question was, and is, as to the right of landlords-appellants to collect from the tenant-respondent, retroactive rent increases allowed by orders of the office of the Federal Office of Bent Control. Those orders were made in April, 1948, but granted increases, effective as of September 29, 1947, which was the date on which the landlords had filed their “ hardship applications ” for higher rents. At the time of the landlords’ applications to the Federal rent officials, all four tenants were occupying their respective apartments under unexpired written leases, but before the date of the orders increasing the maximum rents allowable, all four leases had expired by their terms, and none of them had been renewed, so that, when the Federal orders came through, all four respondents were statutory tenants. The landlords demanded payment at the increased rents: prospectively, to which tenants agreed, and also retroactively back to the application dates, as the orders provided. Bach tenant, however, denied any obligation to make good the added amounts of rent for the period elapsed from the Yppfication date to the order date.

The grounds of the tenants’ objections, in this court, to the retroactivity of the orders are, principally, these:

1. That an “ escalator ” provision in each lease forbade the imposition of increased rents for any period prior to the first day of the month following the making of the rent increase order.

2. That the Federal regulation, effective January 30, 1948, authorizing increases back-dated to the time of a landlord’s petition, was invalid because it did not require notice to the tenant of such application, also that the rent increase orders here contested were void, insofar as retroactive, because no formal notice of application therefor was ever given to any of the tenants.

The position of landlords-appellants may be put thus:

1. That the lease provision referred to in Bo. 1 above had, by its very terms, no application to the period here involved.

2. That the retroactive application of the Federal rent increase order was valid, as far back as the expiration dates of the respective leases which fixed the rents to those dates, and that no law or rule required notice to the tenants of these hardship applications ” made by landlords.

3. That, in any event, the exercise by the Federal Housing Expediter of his statutory power to increase rent may not be questioned in any State court.

In other words, the landlords say that the increase is collec.tible back to the dates when the respective leases expired, while the tenants say that it is collectible only as of, and from, the date when the housing office authorized it. The Appellate Division majority held that “ any law or regulation, under which a claim is made for a retroactive rent increase, must require that the tenant shall have had notice of the pendency of the landlord’s application for an increase.” (275 App. Div. 387, 389.) Accordingly, held the Appellate Division, the increases-were valid only prospectively from the date of the orders, despite their language to the contrary. The dissenting Justices in the Appellate Division were of the opinion that, since the power to back-date had been specifically granted to the Federal Expediter, the State courts could not question the propriety of the exercise of that power, and that, accordingly, the increases were collectible in these proceedings, starting in each case from the expiration date in the respective lease, but not so collectible further back to the date of the landlord’s application, since, of course, the lease-fixed rental controlled until expiration. We agree with the Appellate Division minority.

We take up first the so-called “escalator clause ” found in each of these leases, reading as follows: “ The rent herein provided for is the maximum rent which the Landlord may collect under the O.P.A. [Office of Price Administration] rent regulations in force at the time of the execution of this lease. In the event that at any time during the term of this lease, or any renewal or extension thereof, such regulations against collecting higher rents are cancelled or modified, or if the O.P.A. grants an increase of the rental of the demised premises, the tenant will pay a rental of $........per month or as much thereof as is legally permissible or allowed, commencing the first day of the calendar month following the cancellation or modification of such regulation, or the allowance of an increase of the rental of the demised premises, as the case may be.”

The Appellate Term, when it considered these proceedings, thought that the clause just above quoted, forbade any increase except for periods following the date of the making of the Federal order. We do not agree, The leases, made during Federal O.P.A. rent control, fixed rentals at ceiling figures, and provided that, if any upward change should be authorized, during the term or renewal or extension of the term, the higher amount would then be written into the lease, as of the first day of the following month. The leases of all these tenants expired, and no lease was in any way extended or renewed. The tenants then stayed in possession, not under the original lease but as statutory tenants only. As such, each tenant-respondent was in the landlord’s property not by virtue of any agreement, express or implied, either as to duration of term or amount of rent, but by virtue of the compulsion which the law exerts on the landlord to allow him to remain ” (Stern v. Equitable Trust Co., 238 N. T. 267, 269-270), Nor was this ‘1 escalator clause ’ ’ carried over into the statutory tenancy. The parties here, making their leases during a period of rent control, specifically restricted the clause’s operation to the term of the lease, or any renewal or extension thereof, omitting any reference to a possible subsequent statutory tenancy. The law reads some terms of an express lease into a later statutory tenancy, so as to work out a complete relationship (Stern v. Equitable Trust Co., supra) but it never so carries over, into a statutory tenancy, lease provisions which the parties themselves, in plain words, have agreed should be effective only during the running of the original lease (see Rabinovitz v. Williamson, 275 App. Div. 841, motion for leave to appeal denied 299 N. Y. 800). If these parties had wished their “ escalator clauses ” to survive beyond the leases themselves, and to run into the statutory tenancy, they could have said so (see Matter of Moore [Chira], 275 App. Div. 956, motion for leave to appeal denied 300 N. Y. 762). We conclude that the “ escalator clause ” has no effect here except to prevent any increase from reaching back beyond the lease expiration dates.

No formal or official notice was given, to any tenant, of the landlord’s application to the Federal rent office for permission to charge higher rent. (In one case the landlord did Write a letter to the tenant, two or three weeks after filing the application, which letter notified that the petition had gone in, and there is some showing here that similar letters went to the other three tenants, bnt we treat the cases, as did the Appellate Division, as if no notice at all were given.) The tenants argue that any regulation, or any order, raising rents retroactively without giving the tenants such notice as would give them an opportunity to move out before the effective dates of the increases deprives the tenants, unconstitutionally, of due process. Though we realize the hardship as to tenants, of dating increases back several months, we are unable to see anything unconstitutional in such a practice, which was, concededly, permitted by express Federal regulations. A statutory tenant holds over not because he has any property right or estate in the premises, but because emergency laws forbid his eviction. Fixation of the maximum amount to be paid by him as rent during such emergency occupation is not a judicial but a legislative act, the actual computation thereof being validly delegated by Congress to an administrative agency (Bowles v. Willingham, 321 U. S. 503, 512). Among the administrative regulations is this one authorizing the housing administrators, when a petition for increase is not granted till long after filing, to allow an increase as of the filing date,' that is, the date as to which the new maximum rent is determined. As pointed out in Bowles v. Willingham (supra, p. 519), Congress itself could have fixed emergency rentals without any hearing and without notice to landlord or tenant, and “ Congress need not make that requirement when it delegates the task to an administrative agency ” (see, also, Matter of Beekman v. Ross, 298 N. Y. 891). It may be that, as to a landlord forced to keep a tenant, due process requires that he have a court review of any claim he may make that a reduction of rent, or refusal to allow an increase, is confiscatory (see Yahus v. United States, 321 U. S. 414, 431 et seq.; Bowles v. Willingham, supra, pp. 519-521). But no property or vested right of the statutory tenant is taken when his rent is raised. A tenant under a lease may, when that express lease ends, move or stay. If he stays, he is exercising a privilege granted him by law, and with the benefits thereof he must bear the burdens, including that created by the danger that government may allow his landlord to charge a higher rental, and that retroactively. Perhaps the law should, in fairness, have given the tenant even more protection by requiring formal advance notice to him that a rent raise is in prospect, and that it may be retroactive to the date of the notice. But there was then no such requirement in Constitution, statute or regulation, and we cannot supply one.

Appellants say that, regardless of the answer to the question just discussed, the courts of this State cannot review the Expediter’s order here. If appellants are right as to that, we should not, technically speaking, have addressed ourselves herein to the tenants’ attack on the orders. However, so that our views now may be available as to all the questions variously answered in the opinions below, we are expressing those views, even though we conclude, as we do, that the Municipal Court, when shown the Federal Expediter’s determination, was hound to accept and act upon it, and could not review or overrule it for supposed invalidity. In Matter of Schmoll, Inc., v. Federal Reserve Bank (286 N. Y. 503, 509) we said that no State court may “ control the manner in which a federal agency performs or attempts to perform its functions and duties under the Tariff Act or other federal statute where the Federal government has exclusive jurisdiction.” The attempt by the State courts, in the cases before us, to hold invalid this Federal administrative order, is nothing less than an assertion of control of the manner in which the Federal rent office performed the function assigned to it by Congress. The Schmoll opinion (supra, pp. 508-509) was careful to uphold the power of a State court “ acting within the field of its allotted jurisdiction, to enforce rights created by federal statute and to remedy wrongs committed by federal officers under color of authority granted by federal statutes.” But the attempt here to set aside these rent increase determinations cannot be fitted into either of those situations, stated in the Schmoll opinion as being appropriate for State court adjudication. Respondents say that in the Schmoll case there were available other Federal review procedures, but that this rent increase must be contested in ' the State courts, or not at all, since Congress omitted from the 1947 and 1948 Housing and Rent Acts (U. S. Code, tit. 50, Appendix, § 1881 et seq.) the provision found in the 1942 O.P.A. law (U. S. Code, tit. 50, Appendix, § 924; see Woods v. Stone, 333 U. S. 472, 474) which had conferred on the Federal Emergency Court of Appeals and on the United States Supreme Court, exclusive jurisdiction to determine the validity of rent regulations. The deletion of that exclusive jurisdiction provision from the Federal Housing and Bent Act left the law where it had been before the provision was enacted, and conferred no jurisdiction on any court. And the law of this State, under the Schmoll case and its predecessors, is and was that our State courts have no jurisdiction to review Federal administration orders. Therefore, it does not help respondents to point out that in Lockerty v. Phillips (319 U. S. 182, 187), the Supreme Court had remarked, in discussing this Emergency Court of Appeals ” enactment, that Congress need not have set up such a court or any other inferior Federal court, but could have left suitors to the remedies afforded by state courts ”. The courts of this State have never afforded, and do not now afford, any such remedies, whatever the result may be as to preventing suitors from reviewing the acts of Federal officers or agencies. Perhaps they may bring original suits in the Federal District Courts (see Friedlander and Curreri, Rent Control, p. 131), but the point is not ours to decide.

And not only have our courts, under our own decisions, no power to revise or invalidate this Federal determination, but we are, by the supremacy clause (art. VI) of the Federal Constitution, put under a positive duty to enforce it, in these appropriate proceedings (Testa v. Katt, 330 U. S. 386).

Some argument has been made that the acceptance by these landlords, while their petitions for higher rents were pending, of the lease rentals estopped them, or amounted to a waiver by them. Since they were, during that pendency of those petitions, forbidden to accept more than the rents theretofore fixed, there is no basis for charging them with either waiver or estoppel.

We conclude that these rent increases became effective on the respective dates of expiration of the four leases, that is: as to respondent Meyerowitz on November 1, 1947, as to respondent Dornbush on April 1,1948, as to respondent Silverman on April 1, 1948, and as to respondent Becker on December 1, 1947.

The orders should be modified in accordance with the opinion herein, and as so modified, affirmed, without costs.

Loughran, Ch. J., Lewis, Conway, Dye and Bromley, JJ., concur; Fijld, J., taking no part.

Ordered accordingly.


text:
    Thomas G. Chamberlain et al., as Successor Trustees under the Will of Samuel L. Clemens, Deceased, et al., Respondents, v. Lew D. Feldman, Appellant, et al., Defendants.
    Argued November 16, 1949;
    decided December 29, 1949.

      Allan Hyman for appellant.
    The Appellate Division erroneously held that defendant had failed to sustain the burden of proof when actually plaintiffs had failed to sustain their burden of proof. (Murray Lighterage & Transp. Co. v. Warren, 171 App. Div. 696; Hoffman House v. Barkley, 111 App. Div. 564; Pushman v. New York Graphic Soc., 287 N. Y. 302; Turner v. Robertson, 10 Irish Ch. Rep. 121; Yardley v. Houghton Mifflin Co., 108 F. 2d 28, 309 U. S. 686.)

      Alexander 8. Andrews, Edward J. Willi, Cecil L. Head and Maurice R. Cheyette for respondents.
    I. The literary property in a writing is a separate and distinct property from the physical writing itself and this literary property remains in the author or his estate until transferred expressly or by manifest intent. (Duke of Queensberry v. Shebbeare, 2 Eden 329; Pope v. Curl, 2 Atk. 342; Thompson v. Stanhope, 2 Ambler 737; Cadell v. Stewart, 1 Bell Comm. 116, note; Stephens v. Cady, 14 How. [U. S.] 528; Pushman v. New York Graphic Soc., 287 N. Y. 302.) II. Respondents’ only burden of proof was completely borne and the burden was on appellant respecting his pleaded affirmative defense. (Stephens v. Howells Sales Co., 16 F. 2d 805; Philip v. Pennell [1907], 2 Ch. 577; Rawley v. Brown, 71 N. Y. 85; O’Neill v. General Film Co., 171 App. Div. 854; Thayer v. Jallade, 263 App. Div. 909; Mindlin v. Dorfman, 197 App. Div. 770; Lowery v. Erskine, 113 N. Y. 52; Gillette v. Stoll Film Co., 120 Misc. 850; Houghton Mifflin Co. v. Stackpole Sons, 104 F. 2d 306; Gerlach-Barklow Co. v. Morris & Bendien, Inc., 23 F. 2d 159.) III. Regardless of the burden of proof respondents affirmatively proved by uncontradicted evidence the utter improbability, indeed impossibility, that Mark Twain ever transferred publication rights in the manuscript after the inchoate affair with the Atlantic Monthly. (Thayer v. Jallade, 263 App. Div. 909; Mindlin v. Dorfman, 197 App. Div. 770; Lowery v. Er shine, 113 N. Y. 52.)
   Desmond, J.

In 1876, Samuel L. Clemens, under his pen name of Mark Twain ”, wrote a story entitled A Murder, A Mystery and A Marriage ”, and in the same year offered the manuscript to William Dean Howells, editor of the Atlantic Monthly, for publication. There followed, during the same year, some correspondence between Twain and Howells, in which was discussed an unusual project which the author had in mind: he proposed that a number of other famous writers of the period (such as Bret Harte and Howells himself) be enlisted, each to write his own final chapter for the work, so that for the mystery set up in the first few chapters, each author would compose a solution, in addition to, or in competition with Twain’s own denouement. In other words, as planned by Twain, there was to be a common plot for the story, with a number of different endings. For one reason or another, including the reluctance of famous writers to dance to a rival’s music, Twain’s pet scheme came to nothing. Twenty years later, an entry in Twain’s diary dated March 18, 1897, records a rather vague hope of the author to “ make a skeleton novelette plot and write all the stories myself ” or use it as the basis for a prize story competition. Whether that entry referred to 1 ‘ A Murder, A Mystery and A Marriage ” we do not know, but there is undisputed proof, credited by both courts below, that when Mark Twain died in 1910, the manuscript of “ A Murder, A Mystery and a Marriage ’ ’ was not found among his effects and had never been published anywhere, by anyone.

In 1945, defendant Feldman bought the original manuscript (holographic and signed) at an auction sale, in New York City, of the rare books and manuscripts that had been in the possession, during his life, of Dr. James Brentano Clemens (no kin of Mark Twain) and had passed by inheritance to Dr. Clemens’ wife. How Dr. Clemens came to have the writing is unknown. Mr. Feldman sought permission from plaintiffs, who are the present owners of all literary property formerly belonging to Mark Twain and not otherwise disposed of, to publish the work, but permission was refused. Defendant Feldman went ahead with the publication, however, and this suit was brought to enjoin him from reproducing or publishing the story, in any way. The complaint prays also for a direction to defendant to cancel a purported statutory copyright entered by defendant in the office of the Federal Register of Copyrights. It is not claimed that this statutory copyrighting, or attempt at such, was with the permission of plaintiffs, or any of them.

The trial court was of the opinion that ‘ ‘ it must be presumed that its transfer [by Twain] was legal and that all rights in connection with it have passed to defendant, the ultimate pur-, chaser.” The trial court therefore made a finding that Twain during his lifetime had transferred and conveyed the manuscript, and that such transfer and conveyance “ was made without any reservation of his [Twain’s] right to publish or reproduce the same.” Under the rule of Pushman v. New York Graphic Soc. (287 N. Y. 302) and many older authorities, such an unrestricted transfer of this fictional manuscript (if it ever occurred) would probably have carried with it, and amounted to, a transfer of the common-law copyright and right to reproduce. On the trial, therefore, the complaint was dismissed on the merits.

On appeal, however, the Appellate Division reversed the findings below, and made new fact findings of its own. It concluded that “ it is impossible to spell out from the known conduct of the author that there was a voluntary transfer of the manuscript to anyone which carried with it the privilege of publication.” (274 App. Div. 515, 518.) In other words, the Appellate Division, noting that there was no direct evidence of any unrestricted transfer during the author’s lifetime, found no basis for presuming or inferring such a grant by Twain, much less for presuming or inferring that such a transfer, or a series of transfers, all unrestricted, had carried the paper into the ownership and possession of Dr. James Brentano Clemens. Putting its views into a formal decision, the Appellate Division made new findings of fact to the effect that during Twain’s lifetime the manuscript had been rejected, for publication, by the Atlantic Monthly and William Dean Howells, and that Twain “ finally regarded the manuscript as unsuitable and never intended it for publication.” The finding just quoted, with others made by the Appellate Division, amounts to a determination of fact that neither the author nor his successors in interest ever granted to anyone the literary property in “ A Murder, A Mystery and A Marriage ”. The Appellate Division therefore directed judgment for plaintiffs, which judgment perpetually restrained defendant from publishing, producing or reproducing the story.

Under familiar rules (Civ. Prac. Act, § 605; Pocket Books, Inc., v. Meyers, 292 N. Y. 58) we are, because of the reversal and the making of new findings by the Appellate Division, required to determine whether the weight of evidence lies with one or the other set of findings. From the proofs briefly referred to herein, and other convincing items in the record, we conclude that the great weight of evidence is that Mark Twain never parted with the publication rights to this novelette or plot, and that neither defendant nor anyone else ever acquired them. (In coming to that conclusion we do not rely, since the Appellate Division "made no finding in this connection, on any of the indications that this material was only a plot or outline and never really finished.)

With the facts in that posture, little problem remains. The common-law copyright, or right of first publication, is a right different from that of ownership of the physical paper; the first of those rights does not necessarily pass with the second; and “ the separate common law copyright or control of the right to reproduce belongs to the artist or author until disposed of by him and will be protected by the courts ” (see Pushman v. New York Graphic Soc., 287 N. Y. 302, 307, supra, and cases cited thereat; see similarly, as to statutory copyright, U. S. Code, tit. 17, § 27). Since it has here been found to be the fact that, however the manuscript left the possession of the author, he never intended that it be published, it follows that defendant could not have bought the publication rights.

A recent commentary on this case (62 Harv. L. Rev. 1406-1407) suggests that it may be contrary to sound policy to keep meritorious literary achievement out of the public domain for so long a time as is here involved. Without expressing any views of our own as to the advisability of permitting literary flowers so to blush, unseen, we state our agreement with the last sentence of that Law Review article, in which, it is pointed out that any such change of public policy must be the doing of the Legislature.

The judgment should be affirmed, with costs.

Loúghban, Ch. J., Lewis, Conway, Dye, Ftjld and Bromley, JJ., concur.

Judgment affirmed.


author: Loughran, Ch. J.

text:
    F. T. B. Realty Corporation, Landlord, Appellant, v. Louis Goodman, Tenant, Respondent.
    Argued November 14, 1949;
    decided December 29, 1949.

      Robert 8. Fougner and Osborne A. McKegney for appellant.
    I. Local Law No. 73 of 1949 of the City of New York (the Sharkey Rent Control Law) is unconstitutional because it violates the second paragraph of article VI of the Constitution of the United States (Supremacy Clause). (Glover v. Mitchell, 64 N. E. 2d 648 [Mass.]; Barton v. United States, 75 F. Supp. 703; Cloverleaf Butter Co. v. Patterson, 315 U. S. 148; Dzobiak v. Kowitzky, 56 A. 2d 892 [N. J.]; Sbrolla v. Hess, 43 A. 2d 498 [N. J.], 44 A. 2d 236 [N. J.]; McCulloch v. Maryland, 4 Wheat. [U. S.] 316.) II. Local Law No. 73 contravenes the pre-emption of the field enunciated by section 204(j) of the Housing and Rent Act of 1949. (New York Central R. R. Co. v. Winfield, 244 U. S. 147; Southern Ry. Co. v. Railroad Comm, of Indiana, 236 U. S. 439; Gilbert v. Minnesota, 254 U. S. 325; Southern Ry. Co. v. Reid, 222 U. S. 424; Pennsylvania R. R. Co. v. Public Service Comm., 250 U. S. 566; Chicago, R. I. & P. Ry. Co. v. Hardwick Farmers Elevator Co., 226 U. S. 426; Luftman v. Ross, 298 N. Y. 579.) III. Local Law No. 73 is unconstitutional because it deprives appellant of property without just compensation. (Farnham Realty Corp. v. Posner, 200 App. Div. 827; Hall Realty Co. v. Moos, 200 App. Div. 66; Twentieth Century Associates v. Waldman, 294 N. Y. 571.) IV. Local Law No. 73 is unconstitutional because it constitutes an unlawful delegation of legislative power. (Schechter Poultry Corp. v. United States, 295 U. S. 495; Matter of Little v. Young, 82 N. Y. S. 2d 909, 274 App. Div. 1005, 299 N. Y. 699; Matter of Seignious v. Rice, 273 N. Y. 44; Matter of Small v. Moss, 279 N. Y. 288; Packer Collegiate Inst. v. University of State of N. Y., 298 N. Y. 184; Sbrolla v. Hess, 43 A. 2d 498 [N. J.], 44 A. 2d 36 [N. J.].) V. Local Law No. 73 is unconstitutional because the City of New York has no power under the State Constitution or State statutes to enact eviction restrictions without approval of the State Legislature. (Matter of Tartaglia v. McLaughlin, 190 Misc. 266, 273 App. Div. 821, 297 N. Y. 419.)

      Ed Dupree, General Counsel (Nathan Siegel, Hugo V. Prucha and Louise F. McCarthy of counsel), for Office of the Housing Expediter, amicus curiae.

    I. In enacting the Housing and Rent Act of 1947, as amended, Congress pre-empted the field of rent control throughout the nation. Since the provisions of the local law conflict, they cannot stand. (Case v. Bowles, 327 U. S. 92; Testa v. Katt, 330 U. S. 386; Fleming v. Rhodes, 331 U. S. 100; Bowles v. Willingham, 321 U. S. 503; Woods v. Miller Co., 333 U. S. 138.) II. Conflict is present between the Federal and local law. (United States v. Allegheny County, 322 U. S. 174.) TIT. Conflict exists between the standards for determining adjustments under both Federal and local acts. (Wilson v. Brown, 137 F. 2d 348; Jacobs v. Office of Housing Expediter, 176 F. 2d 338.) IV. Conflict exists between the eviction provisions of both Federal and local laws. (Hill v. Florida, 325 U. S. 538.) V. Conflict exists to the extent that local law punishes by fine and imprisonment conduct that is legal under Federal law. (Mill v. Florida, 325 U. S. 538.)

      Robert M. Schaffer and Leo Brown for respondent.
    I. Congress imposed a bar on home rent increases. It provided for the lifting of that bar in hardship cases, at the instance of the landlord, but did not fix rent at the increased amount. It merely lifted the permissible ceiling, and relegated the landlord to voluntary lease agreements or the provisions of local law for the collection of higher rent. II. The local law relates to a substantive matter, how much rent a landlord may receive, and not to a procedural one, the form of dispossess proceedings. The substantive matter being within the scope of proper city action, there is no violation of the constitutional provision that the city may not impair an act of State-wide scope. (Matter of Tartaglia v. McLaughlin, 297 N. Y. 419.)

      John P. McGrath, Corporation Counsel (Nathan W. Math, Anthony Curreri, Alfred Weinstein and Stanley Buchsbaum of counsel), for City of New York and another, amici curiae, in support of respondent’s position.
    I. Congress has not occupied the field of rent control, and there is no conflict between the Federal statute and the local law. (Cuyahoga Riv. Power Co. v. City of Akron, 240 U. S. 462; Sinnot v. Davenport, 22 How. [U. S.] 227; Missouri, K. & T. Ry. Co. v. Haber, 169 U. S. 613; Missouri, K. & T. Ry. Co. v. Harris, 234 U. S. 412; Matter of Tartaglia v. McLaughlin, 297 N. Y. 419; People v. Mailman, 182 Misc. 870, 293 N. Y. 887; Dickson v. Uhlmann Grain Co., 288 U. S. 188; Ellenbogen v. Caldwell, 270 App. Div. 946; Matter of Wallach v. Ross, 298 N. Y. 806; Reid v. Colorado, 187 U. S. 137; Savage v. Jones, 225 U. S. 501.) II. Under the New York Constitution, the City Home Rule Law, and the New York City Charter, the city has power to enact legislation to protect the property, safety and health of its inhabitants so long as the legislation does not conflict with State laws. (People v. Lewis, 295 N. Y. 42.) III. There is no conflict between Local Law No. 73 and any State law. (People v. Lewis, 295 N. Y. 42; People v. Sampsell, 248 N. Y. 157; Matter of Oltarsh v. Levy, 152 Misc. 674, 242 App. Div. 617, 266 N. Y. 523; Reich v. Cochran, 201 N. Y. 450.) IV. Local Law No. 73, being a valid exercise of the police power, does not deprive the landlord of property without due process or just compensation. (People ex rel. Durham Realty Corp. v. La Fetra, 230 N. Y. 429; Twentieth Century Associates v. Waldman, 294 N. Y. 571; Bowles v. Willingham, 321 U. S. 503; Block v. Hirsh, 256 U. S. 135.) V. The local law does not improperly delegate legislative authority, because adequate standards are provided. (People ex rel. Durham Realty Corp. v. La Fetra, 230 N. Y. 429; Levy Leasing Co. v. Siegel, 258 U. S. 242.)
   Loughran, Ch. J.

In this summary proceeding, the landlord has appealed directly to this court from a decision of the Municipal Court of the City of New York granting to the tenant a final order dismissing the Petition without prejudice to Landlord’s right to start a new proceeding after compliance with the Sharkey Law ”. The enactment so cited is Local Law No. 73 of 1949 of the City of New York. (Administrative Code of City of New York, § U41-7.0.)

A question in respect of our jurisdiction must first be disposed of. An appeal to this court may be taken as of right, from a judgment or order of a court of record of original jurisdiction which finally determines an action or special proceeding where the only question involved on the appeal is the validity of a statutory provision of the state or of the United States under the constitution of the state or of the United States; and on any such appeal only the constitutional question shall be considered and determined by the court ” (N. Y. Const., art. VI, § 7, subd. [2]. So, Civ. Prac. Act, § 588, subd. 4). The local law in question is a “ statutory provision of the state ” within the meaning of the above words of the State Constitution. Whether that local law is valid under the Federal and State Constitutions is the only question here involved. Hence this direct appeal to us is rightly here. (Matter of Rudack v. Valentine, 274 N. Y. 615; Olive Coat Co. v. City of New York, 283 N. Y. 643, 733. See People v. Railway Express Agency, 297 N. Y. 783. See Buchsbaum, Appeal as of Right to the New York Court of Appeals on Constitutional Grounds, 24 N. Y. U. L. Quarterly Rev. 158, 162, 169; Cohen, Powers of the New York Court of Appeals, p. 156 et seq.; cf. U. S. Code, tit. 28, § 1257 [formerly U. S. Judicial Code, § 237]; Robertson and Kirkham, Jurisdiction of the Supreme Court of the United States, § 7, p. 11 et seq.)

The local law declares the existence within the city of New York of a serious emergency arising from a shortage of apartments and from demands for excessive rent increases. The local law makes also this declaration (subd. a): “ Unless evictions from such accommodations are regulated, disruptive practices and abnormal conditions will produce serious threats to the health, safety and general welfare of the inhabitants of the city.” The policy of the local law as therein declared is “to impose certain additional restrictions upon the right to evict tenants from apartments and upon increases in rents for apartments in the city, for the purpose of alleviating the present housing emergency and preventing abuses.”

The local law further says:

“ c. Rents not to exceed maximum. It shall be unlawful for any person to demand, accept or receive from any tenant for the use or occupancy of any apartment a rent therefor greater than the rent which was being received by the landlord for said apartment on March first, nineteen hundred and forty-nine, unless the [temporary city housing rent] commission shall by appropriate order authorize the collection of a higher rent for said apartment.

“ The commission is hereby authorized to adjust the rent of any apartment within the city of New York, due and payable therefor after March first, nineteen hundred and forty-nine, to such amount as it may deem just and reasonable consistent with the emergency, provided that the landlord shall allege and prove that he is presently providing substantially the same services, facilities, accommodations and maintenance which the landlord was legally obliged to provide on June thirtieth, nineteen hundred and forty-seven, and further provided that such rent so adjusted by the commission shall in no event be less than the rent payable therefor on the first day of March, nineteen hundred and forty-nine, except that the commission shall have the power by regulation or order to decrease the maximum rent for any apartment, if the commission should find that the landlord has decreased the services, facilities, accommodations, or maintenance to which the tenant was entitled on June thirtieth, nineteen hundred and forty-seven. * * *

“ d. Evictions. No tenant shall be removed from any apartment by action or proceeding to evict or to recover possession, by exclusion from possession, or otherwise, nor shall any action or other proceeding be commenced for the collection of any rent greater than the rent due and payable on the first day of March, nineteen hundred and forty-nine or for non-payment of such greater rent unless the commission has certified that such rent for the non-payment of which the removal is sought or for the collection of which judgment is demanded, has before the commencement of such action or proceeding, been certified as just and reasonable consistent with the emergency, by the commission * * *.

e. Eviction certificate; application required. Prior to the institution of any summary proceedings or any other action or proceeding to evict a tenant or to recover possession of an apartment, except for non-payment of rent no greater than that which was being received by the landlord for said apartment on March first, nineteen hundred forty-nine, the person instituting such action or proceeding shall file in triplicate with the commission, a verified application for a certificate of eviction. Such application shall contain a detailed statement of the facts upon which such action or proceeding is based. The commission shall promptly transmit a copy of such application to the department of housing and buildings and the department of health, which departments shall promptly furnish the commission with such information or reports as the commission shall require concerning the premises and the tenants thereof, described in the application filed pursuant to this subdivision.

“ The commission shall, as promptly as is practicable, render its determination granting or denying a certificate of eviction under subdivision d of this section and shall promptly notify the person filing such application for such certificate, of such determination. ’ ’

The facts of the case in hand are briefly these: After the tenant’s lease expired in 1943, he continued to occupy his apartment at a rent fixed by the Federal housing authority. On August 23,1949, the rent was increased by that authority. When the tenant refused to pay the increase, the landlord brought the present summary proceeding to dispossess him and for recovery of the rent unpaid, though no certificate had been obtained from the temporary city housing rent commission. Taking his stand upon the local law in question, the tenant denied liability for rent in excess of that paid by him on March 1, 1949, and, as we have seen, the court below sustained him in that position.

The Municipal Court of the City of New York is a court of record (Judiciary Law, § 2). Except as the Legislature has otherwise provided in the Municipal Court Code, the practice in that court is regulated by the Civil Practice Act. (Civ. Prac. Act, § 1; N. Y. City Mun. Ct. Code, § 15 ; L. 1915, ch. 279; Chase Watch Corp. v. Heins, 284 N. Y. 129.)

Summary proceedings to recover possession of real property are governed by article 83 of the Civil Practice Act. In such a proceeding, a landlord may dispossess Ms tenant for nonpayment of rent and at the same time have judgment for rent in arrears. (Civ. Prac. Act, §§ 1410, 1425.) The present cause is such a proceeding.

The Home Rule Amendment of the State Constitution says (art. IX, § 12): “ Every city shall have power to adopt and amend local laws not inconsistent with the constitution and laws of the state relating to its property, affairs or government. Every city shall also have the power to adopt and amend local laws not inconsistent with this constitution and laws of the state, and whether or not such local laws relate to its property, affairs or government, in respect to the following subjects: * * * the government and regulation of the conduct of its inhabitants and the protection of their property, safety and health.” (See, too, City Home Rule Law, §§ 11, 12.)

We .have, then, here before us this question of law: Is the local law consistent with article 83 of the Civil Practice Act — the State statute which regulates summary proceedings in courts of record? To our minds the only admissible answer is No ”. As appears by the words we have quoted from subdivisions d and e of the local law, the council of the city (in accordance with the policy declared in subdivision a) has imposed prerequisite “ additional restrictions ” upon the right of a landlord to evict a tenant from an apartment in the city. The local law is, therefore, inconsistent with article 83 of the Civil Practice Act and in that respect runs foul of the limitation laid down by the above words of the Home Rule Amendment of the State Constitution (see Matter of Tartaglia v. McLaughlin, 190 Misc. 266, affd. 273 App. Div. 821, revd. 297 N. Y. 419. See, too, Matter of Kress & Co. v. Department of Health of City of N. Y., 283 N. Y. 55; People v. County of Westchester, 282 N. Y. 224; Jewish Consumptives’ Relief Soc. v. Town of Woodbury, 230 App. Div. 228, affd. 256 N. Y. 619).

But the void eviction provisions of subdivisions d and e are not the whole of the local law. The rent fixing provisions of subdivision c remain to be discussed. Whether subdivision c can stand alone or must fall with subdivisions d and e is a question to which we now turn in the light of the separability clause found in subdivision o. This question is one of legislative purpose, namely: Would the city council have enacted the local law if it had been aware that the eviction provisions were invalid? The answer does not turn upon the division of the local law into sections or subdivisions. We have set forth the text of the local law at some length earlier in this opinion. As we read that text, the restrictions upon the right to evict tenants and the restrictions upon rent increases were regarded by the city council as being equally essential to the declared purpose of their local law.. Hence the one set of restrictions cannot be separated from the other except by a remodeling of the law on a scale which, as we believe, would be beyond the judicial power (see People ex rel. Alpha Portland Cement Co. v. Knapp, 230 N. Y. 48).

The foregoing considerations are decisive of this case. Accordingly we express no opinion as to other constitutional questions that have here been argued.

The order should be reversed, without costs, and the matter remitted to the Municipal Court of the City of New York for further proceedings not inconsistent with this opinion.

Lewis, Conway, Desmond, Dye, Fuld and Bromley, JJ., concur.

Order reversed, etc.


author: Bromley, J.

text:
    In the Matter of Walter J. Flannery et al., Appellants, against Lazarus Joseph, as Comptroller of the City of New York, Respondent. In the Matter of Rolando S. Malerba et al., Appellants, against Lazarus Joseph, as Comptroller of the City of New York, Respondent.
    Argued November 16, 1949;
    decided December 29, 1949.

      T. Robert Gabrielli for Walter J. Flannery and others, petitioners-appellants.
    I. The survey upon which the determination is based is erroneous in that the comptroller specifically excluded maintenance men employed in buildings owned by various private transportation companies. II. The comptroller erred when he failed and refused to accord to certain maintenance men employed in the city colleges the rate of pay for the skilled work that they were performing and were hired to perform. III. The comptroller erred in including in his survey maintenance men employed in private residential buildings for two reasons since (1) they are not residential building maintenance men — residential building maintenance men are a different title and the subject matter of a different proceeding, and (2) even if it is held thatQ maintenance men employed in private residential buildings are comparably employed to these petitioners, the failure to compute the tips received by maintenance men in private residential buildings resulted in an untrue reflection of their earnings requiring their exclusion from the survey. (Matter of Giannettino v. McGoldrick, 295 N. Y. 208; Matter of Sloat v. Rochester Taxicab Co., 177 App. Div. 57, 221 N. Y. 491; Matter of Bryant v. Pullman Co., 188 App. Div. 311, 228 N. Y. 579; Matter of Begendorf v. Swift & Co., 193 App. Div. 404; Kadison v. Gottlieb, 233 N. Y. S. 485.)

      Samuel Resnicoff for Dolando S. Malerba and others, petitioners-appellants.
    I. The refusal and failure of the comptroller to include in his survey the rate of pay paid maintenance men by private bus and transit companies constituted error. II. It was incumbent upon the comptroller to first ascertain and determine the nature of the work performed by petitioners and then include in his survey the rate of wages paid by private industry to their employees performing similar work. (Matter of Byrnes v. Windels, 265 N. Y. 403; Bressler v. Board of Higher Educ. of City of N. Y., 298 N. Y. 112.)

      David A. Savage and Donald A. Savage for a group of maintenance men employed by the City of New York, amicus curiae, in support of petitioners-appellants ’ position.
    I. The comptroller should not have included in his survey the wages of employees working in apartment houses. II. The refusal of the comptroller to include in the survey the wages paid to skilled mechanics performing maintenance work in privately owned buildings was error. (Wood v. City of New York, 274 N. Y. 155.)

      John P. McGrath, Corporation Counsel (Howard G. Fischbach and Seymour B. Quel of counsel), for respondent.
    I. The comptroller’s determination was valid and was supported by the survey and the evidence. The comptroller properly excluded from his survey data relating to maintenance men employed by private transportation companies on the ground that city-employed maintenance men are not engaged in that field of work. (Matter of Watson v. McGoldrick, 286 N. Y. 47 ; Matter of Hoof v. McGoldrick, 295 N. Y. 214.) II. The city is obliged to pay a prevailing rate of wages to its maintenance men only for services rendered within the municipal civil service commission’s prescribed duties for that position. (Matter

      of Kearns v. Board of Educ. of City of N. Y., 279 N. Y. 61; Stetson v. Board of Educ. of City of N. Y., 165 App. Div. 476, 218 N. Y. 301; Matter of Orsechowsky, 60 N. Y. St. Dept. Rep. 205; Matter of Morian, 65 N. Y. St. Dept. Rep. 52.) III. The comptroller was justified in including in his calculations wage data which embraced privately employed maintenance men performing services in apartment or residential structures since petitioners render similar services. (Matter of Heaney v. McGoldrick, 286 N. Y. 38.) IV. Apart from petitioners’ concessions that tips and gratuities allegedly received by private employees are speculative and not ascertainable, the Labor Law makes no provision for the inclusion thereof into the basic wage so as to entitle city employees to comparable emoluments.
   Bromley, J.

Appellants are a group of maintenance men employed under that civil service title to tend buildings owned by the City of New York. They challenge a number of rulings made by the comptroller in a proceeding, pursuant to section 220 of the Labor Law, to fix the prevailing rate of wages ” paid to workmen of “ the same trade or occupation ” in that city. By a divided court the Appellate Division has sustained the determination of the comptroller, reviewed under article 78 of the Civil Practice Act, holding the challenged rulings justified under the statute.

Upon due complaint the comptroller was obliged to investigate and determine the prevailing rate of wage paid to those workmen whose ‘ trade or occupation ’ ’ is comparable to appellants ’ (Labor Law, § 220, subd. 7), and to afford the latter opportunity to be heard on the subject (id. subd. 8). His determination rested upon a description of the duties of maintenance men set forth by the municipal civil service commission, as follows: “ To assist in the routine maintenance, operation and repair of "public buildings, institutions, schools and other plants operated by The City of New York; perform related work.”

The findings as to comparable wage rates were derived from surveys of the wages paid maintenance men by a large number of private employers, including the Consolidated Edison Company, New York Telephone Company and National Biscuit Company, as well as firms which operate private apartment houses. The asserted errors fall under three heads.

I. It is contended that the wages of maintenance men performing comparable work for private transportation companies, such as the Fifth Avenue Coach Company, were excluded erroneously from the comptroller’s survey. The record indicates that the wages paid maintenance men by private transportation companies were not included in the comparison because those firms comprise a separate and noncomparable field of employment — the transit field ”. There is no evidence as to the duties of the private employees, or as to their wages.

The ruling was said to be justified by our decisions in Matter of Watson v. McGoldrick (286 N. Y. 47) and Matter of Hoof v. McGoldrick (295 N. Y. 214). In Matter of Watson v. McGoldrick (supra) we held that the comptroller, in a proceeding under section 220, might not refuse to compare the wages of private motor grader operators with those of men performing similar work for the city upon the sole ground that the city’s employees had greater economic security through their pension benefits and a larger annual income through more steady employment. ‘ ‘ The statute * * * permits no such differentiation” (286 N. Y., at p. 53), and the actual wage rates of the two groups must be compared if they are in fact of the same trade or occupation ”. However, in remitting the matter to the comptroller, we noted that differences in the actual work performed or in the duration of employment often are reflected in varying union wage scales for similar types of labor. Under such circumstances it may become a question of fact whether persons employed to do similar work but in different fields are in fact engaged in the same ‘ trade or occupation.’ ” (P. 55.)

In Matter of Hoof v. McGoldrick (supra) we sustained a determination that the work of letterers employed by New York City was comparable with the duties of a well-defined group of private employees. The categories of the private employees had been established by the union; and the higher wages of two other groups of letterers, whose duties had been found noncomparable, were due to the hazardous character of their work upon outdoor scaffolds. Although there was some evidence that the city’s letterers worked upon scaffolds occasionally ”, the civil service definition of their duties did not include such work, and we could not “ say as a matter of law that the comptroller’s determination was arbitrary ” (295 N. Y., at p. 218).

Neither decision supports the ruling here challenged. According the discretion of the comptroller all the deference due to a determination of fact in proceedings under article 78, appellants’ contention must be sustained. The record does not disclose the duties of maintenance men employed by private transportation companies. If their work differs substantially from that of appellants, that fact should be critical and not merely the nature of their employers’ business. The burden of investigation lies with the comptroller in the first instance (Labor Law, § 220, subd. 7) and his determination should be made upon the facts.

II. The wages of maintenance men employed in private apartment houses were included in the comparison of the comptroller, over appellants’ objection, upon the ground that the terms “ public buildings, institutions ”, in the civil service description of their duties, comprehends such residential buildings as homes for the poor, nurses’ residences and hospitals for chronic invalids. Appellants do not squarely contend that the duties of the private employees differ from their own, nor did they offer proof to that effect. In that respect they rely simply on the fact that the comptroller had excluded a description of duties for maintenance men employed by the New York City Housing Authority as immaterial to consideration of the work performed by appellants, none of whom works for the housing authority. We find no inconsistency in those rulings of the comptroller, nor can it be said that private residential employees are necessarily not comparable with the city’s maintenance men.

However, another ground of objection to the inclusion of private residential employees has substance. Appellants first had urged before the comptroller that comparative wage figures for the private employees should include the large sums in tips customarily received from tenants, which had induced maintenance men in apartment houses to accept extremely low wages from their employers. The comptroller investigated the subject, could obtain no satisfactory information, and overruled the objection. Appellants then made an effective offer to prove the customary receipt of large amounts in tips by maintenance men in private apartment houses, with the end of demonstrating that those employees should not be included in the comparison, although the precise amount of the tips might not be determined. The comptroller erred in barring such proof. If permitted, appellants might have shown that the formal wages of private residential employees bear no relation to the character of their work because of the opportunity for large additional income. It is well known that in some occupations an employer need pay only a nominal wage for that reason. If appellants could demonstrate that the formal wages of maintenance men in private apartment houses are wages in name alone, the latter group should not be included in the comparison. The burden lay upon appellants, after the comptroller’s fruitless investigation, but they should have been permitted to introduce their evidence.

III. A number of appellants, employed in some of the city’s colleges and by the welfare department, have claimed to be doing the work of skilled plumbers, carpenters and other craftsmen, and have asserted that their wages should be comparable to those of other workmen performing similar tasks. Both maintenance men and skilled craftsmen hold competitive positions in the city’s civil service. We indicated clearly in Bressler v. Board of Higher Educ. of City of N. Y. (298 N. Y. 112, 116-117) that a civil service employee performing the tasks of a higher competitive class could not procure an appointment to that class without examination and appointment. The same considerations obtain here. A worker who has been employed as a maintenance man, and is engaged in the duties of a skilled craftsman, cannot find his remedy in section 220. If the comptroller and the courts were to determine his qualifications for the higher salary, as well as the nature of his duties, a conflict with the purpose of the civil service laws would be inevitable. In proceedings of this nature the civil service description of an employee’s duties must be determinative.

In each proceeding: The order of the Appellate Division should be reversed and the determination of the comptroller annulled, with costs in this court and in the Appellate Division, and the matter remitted to the comptroller for further proceedings not inconsistent with this opinion.

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

Order reversed, etc.


author: Dye, J.

text:
    Jane Toscano, as Administratrix of the Estate of Joseph Toscano, Deceased, Appellant, v. Joseph D. McGoldrick, as Comptroller of the City of New York, et al., Respondents.
    Argued October 17, 1949;
    decided December 29, 1949.

      Sidney A. Fine for appellant.
    I. This action at law is the appropriate remedy for recovery of unpaid salary. (Steinson v. Board of Educ. of City of N. Y., 49 App. Div. 143, 165 N. Y. 431; Graham v. City of New York, 167 N. Y. 85; Matter of Rushford v. La Guardia, 280 N. Y. 217; O’Hara v. City of New York, 46 App. Div. 518, 167 N. Y. 567; Allen v. City of New York, 120 App. Div. 539; Manko v. City of Buffalo, 271 App. Div. 286, 296 N. Y. 905; Rockland Light & Power Co. v. City of New York, 289 N. Y. 45; People ex rel. Wren v. Goetting, 133 N. Y. 569; Mackay v. Powers, 274 App. Div. 987; Gottfried v. Gottfried,. 269 App. Div. 413.) II. Defendants may not rely on the board of estimate’s resolution of February 28, 1938, since that resolution was, in effect, rescinded on December 6, 1938, when plaintiff was restored to duty. The leave of absence without pay from April 1 to November 30, 1938, was a condition attached by the bndget director on his own initiative,

      in the certificate authorizing the filling of the vacancy by the restoration of plaintiff. This condition was illegal whether attached by the budget director or by the board of estimate itself. (O’Neill v. City of New York, 81 Misc. 453; O’Connor v. City of New York, 178 App. Div. 550; Stoddart v. City of New York, 80 App. Div. 254.) III. Neither loches nor the four months ’ Statute of Limitations in section 1286 of the Civil Practice Act is a defense to this action. (Matter of Mullarkey v. O’Ryan, 265 N. Y. 551; Matter of Benvenga v. La Guardia, 182 Misc. 507, 268 App. Div. 566, 294 N. Y. 526; Matter of Moskowitz v. La Guardia, 183 Misc. 33, 268 App. Div. 918, 294 N. Y. 830; Matter of Donnellan v. O’Dwyer, 189 Misc. 121; Matter of Barbarita v. Board of Estimate, 62 N. Y. S. 2d 424; People ex rel. O’Loughlin v. Prendergast, 219 N. Y. 377.) IV. In any event, defendants’ voluntary reinstatement of plaintiff obviated any need for mandamus to compel such reinstatement. (Hagan v. City of Brooklyn, 126 N. Y. 643; Matter of Warner v. Hall, 141 Misc. 294; O’Neill v. City of New York, 81 Misc. 453.) V. After the courts had adjudged that the resolution of the board of estimate was illegal, defendants had no right to require plaintiff to accept a leave of absence without pay for the period of his illegal ouster, as a condition of his reinstatement, nor did plaintiff’s acceptance of reinstatement constitute a waiver of his right to such salary. (Matter of Rushford v. La Guardia, 169 Misc. 581; Pitt v. Board of Educ. of City of N. Y., 216 N. Y. 304; O’Neill v. City of New York, 81 Misc. 453.)

      John P. McGrath, Corporation Counsel (Seymour B. Quel, Frank A. Piassa and William E. Walsh of counsel), for respondents.
    I. The present action is barred because of plaintiff’s failure to establish his right to the position claimed in an article 78 proceeding in the nature of mandamus. The legality of the abolition of plaintiff’s position cannot be collaterally attacked in this action at law. Nor can plaintiff evade the short Statute of Limitations applicable to article 78 proceedings by resorting to an action at law. (Matter of Barmonde v. Kaplan, 266 N. Y. 214; Thoma v. City of New York, 263 N. Y. 402; Hagan v. City of Brooklyn, 126 N. Y. 643; Thomson v. Board of Educ. of City of N. Y., 201 N. Y. 457; Levitch v. Board of Educ. of City of N. Y., 212 App. Div. 598; Sutliffe v.
      City of New York, 132 App. Div. 831; Walters v. City of New York, 119 App. Div. 464; Kelly v. Board of Transportation, N. Y. L. J., Jan. 26, 1935, p. 470 [App. Term, 2d Dept.].) II. The acceptance by plaintiff on December 6, 1938, of the position of Italian interpreter in the city clerk’s office with a leave of absence from April 1, 1938, to November 30, 1938, without pay constitutes a waiver of any claim for salary for such period. (Wardlaw v. Mayor of New York, 137 N. Y. 194; McNamara v. Mayor of New York, 152 N. Y. 228.)
   Dye, J.

In this action at law for unpaid salary, the city has, so far successfully, challenged plaintiff’s right to bring the action on the general ground that the only remedy available for the relief sought is in the nature of mandamus under article 78 of the Civil Practice Act (L. 1937, ch. 526, as amd.) and which would therefore be barred by the four months ’ Statute of Limitations contained in section 1286 thereof.

Permission to appeal has been granted by the Appellate Division in the first judicial department.

The within action stems from the abortive act of the board of estimate taken when the new city charter, adopted by referendum, became effective on January 1, 1938, in attempting to adopt a new budget on January 3, 1938. One of the effects of this new budget was to abolish a number of clerical positions in the city service, including that of Italian interpreter in the office of city clerk, an unclassified position concededly not under the jurisdiction of the municipal civil service commission (N. Y. City Mun. Civ. Serv. Comm. Rules, rule I, subd. 1). At the time — and for nineteen years previous — this position was held by Joseph Toscano, the plaintiff’s intestate. He was thereupon dropped from the payroll. Later and following our ruling that the board had no such authority and that the former budget was legally in effect (Dixon v. La Guardia, 277 N. Y. 84, decided Feb. 28, 1938) Toscano was paid for the months of January and February, 1938, at the budgetary rate of $2,400 per annum. On the same day as our decision on the legality of the old budget the board by resolution made a further attempt to abolish this and other positions: a method which eventually we also disapproved (Matter of Rushford v. La Guardia, 280 N. Y. 217; Matter of Broderick v. City of New York, 295 N. Y. 363). The city voluntarily and on its own initiative restored Toscano to the payroll as of December 1, 1938, conditioned, however, upon a reduction in pay from the budgetary rate of $2,400 to $2,000 per annum and upon the further condition that he consent to a leave of absence without pay from March 1 to November 30, 1938, the period of his illegal ouster.

Following Toscano’s death in July, 1942, his widow as administratrix of his estate instituted the within action for the unpaid difference in salary. Since Toscano failed to sign the payroll under protest, he concededly forfeited any right to collect the difference between the rate actually paid and that authorized by the budget (Administrative Code of City of New York, § 93c-2.0; Quayle v. City of New York, 278 N. Y. 19; Matter of Shevlin v. La Guardia, 279 N. Y. 649; Matter of Rushford v. La Guardia, supra). The dismissal of the complaint as to that item was consented to and is not before us here. Our only question relates to the period of illegal ouster for which no salary was received.

When the board restored Toscano to his position as Italian interpreter it was doing only that which it was legally bound to do under the mandate of the Rushford decision {supra). Anything that mandamus could have accomplished was therefore voluntarily done. Nothing remained except the payment of salary at the budgetary rate which did not involve the exercise of either administrative or judicial discretion nor present any question requiring review in a special proceeding (Civ. Prac. Act, art. 78). Mandamus is a special remedy available to enforce a clear right (People ex rel. McCabe v. Matthies, 179 N. Y. 242) which in its application is discretionary with the court (Matter of Black v. O’Brien, 264 N. Y. 272). The case of Thoma v. City of New York (263 N. Y. 402) is not to the contrary as there we held that the plaintiff had no cause of action under any theory in any court and for that reason we do not consider it an authority in support of the contention here that mandamus is an exclusive remedy for the recovery of legal pay. Our decision in Matter of Barmonde v. Kaplan (266 N. Y. 214) turned solely on the merits without reaching the propriety of the remedy used, which, as it turned out, was entirely immaterial in the absence of a right to redress. The acceptance of reinstatement by Toscano conditioned by his consent to a leave of absence without pay for the period of his ouster, cannot be deemed a voluntary waiver or a renouncement of his right to salary for such period (Civil Service Law, § 8-a; Matter of Picone v. Commissioner of Licenses of City of N. Y., 241 N. Y. 157; Pitt v. Board of Educ. of City of N. Y., 216 N. Y. 304). The imposition of such a condition to reinstatement was wholly unwarranted, cannot be justified and must be deemed to have coerced Toscano into refraining from pressing his claim in his lifetime. The clear result of the city’s action was to fine Toscano nine months’ salary without cause. It may not now be heard, in avoidance of its obligation to challenge the timeliness of the commencement of the within suit by asserting that article 78 provides an exclusive remedy.

There is a line of cases, it is true, in which mandamus has been declared the exclusive means of recovering monetary claims but in which the defendants (or respondents) have been independent administrative boards or commissions such as water or sewer district commissioners rather than corporate or similar entities. These special boards serve the public through their own right and not as agents of municipal corporations, a distinction which the cases had carefully maintained prior to the recent integration of the various prerogative writs into the present article 78. As this distinction is one of substance rather than procedure it has validity in the present case. (See People ex rel. Desiderio v. Conolly, 238 N. Y. 326, at pp. 331-332, wherein the earlier decisions of People ex rel. Farley v. Winkler. 203 N. Y. 445, and Holroyd v. Town of Indian Lake, 180 N. Y. 318, are limited per Cabdozo, J.).

While it is said that mandamus will always lie regardless of time limitations where there is unperformed a continuing statutory duty upon public officials — the duty to pay salary being of that category (Matter of Powers v. La Guardia, 292 N. Y. 695) — the pertinency of that principle need not be discussed in this case but can better be left to a more appropriate context (cf. Matter of Shevlin v. La Guardia, supra; People ex rel. Cropsey v. Hylan, 232 N. Y. 601).

With the express purpose of article 78 being only to liberalize the handling of the various writs of certiorari to review, mandamus and prohibition and to reduce to a minimum the technicalities of practice (Third Annual Report of N. Y. Judicial Council, 1937, p. 133) the changes effected must be considered procedural and should not be taken to represent any substantial extension or contraction of the classic substantive principles underlying these ancient remedies. By this token article 78 cannot be interpreted as excluding an action at law in a heretofore appropriate case. We believe this action to represent such a case.

The judgments should be reversed and judgment directed in favor of the plaintiff, with costs in all courts.

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

Judgments reversed, etc.