author: Conway, J. Fuld, J.

text:
    The People of the State of New York, Respondent, v. Albert Trowbridge, Appellant.
    Argued May 22, 1953;
    decided July 14, 1953.

      John A. Murray and Gerald W. O’Connor for appellant.
    I. The admission of the testimony of the witness Conley as to Margolius’ previous identification constituted reversible error. (Robb v. Hackley, 23 Wend. 50; The King v. Parker, 3 Doug. 242; People v. Jung Hing, 212 N. Y. 393; People v. Seppi, 221 N. Y. 62; People v. Ragazinsky, 195 App. Div. 743; People v. Malkin, 218 App. Div. 635; People v. Russell, 197 App. Div. 239; People v. Infantino, 224 App. Div. 193; People v. Hill, 224 App. Div. 779; People v. Spinello, 277 App. Div. 712, 303 N. Y. 193; People v. Hagedorny, 272 App. Div. 830.) II. As a matter of law, the guilt of defendant was based upon an incredible identification and was not established beyond reasonable doubt. (People v. Ledwon, 153 N. Y. 10; People v. Gluck, 188 N. Y. 167; People v. Wrieden, 299 N. Y. 425; People v. Montlake, 184 App. Div. 578.) III. The failure of the court to inquire as to the jury’s question constituted reversible error. (People v. Gonzalez, 293 N. Y. 259.)

      Timothy F. O’Brien, District Attorney (John T. Casey of counsel), for respondent.
    I. The admission of the testimony of the witness Conley as to the previous identification by the complainant Margolius did not constitute reversible error. (People v. Jung Hing, 212 N. Y. 393; People v. Seppi, 221 N. Y. 62; People v. Ragazinsky, 195 App. Div. 743; People v. Spinello, 277 App. Div. 712, 303 N. Y. 193; People v. Infantino, 224 App. Div. 193.) II. After hearing the appeal, the court must give judgment without regard to technical errors or defects or to exceptions which do not affect the substantial rights of the parties. (People v. Bellach, 284 N. Y. S. 818; People v. Vanderborg, 277 App. Div. 795.) III. In a noncapital ease, the weight of evidence is not subject to review by the Court of Appeals unless it can be said as a matter of law that there is no evidence to support it. (People v. Lobel, 298 N. Y. 243; Gregoire v. Putnam’s Sons, 298 N. Y. 119.) IV. The court properly returned the jury for further deliberation. (People v. Koerner, 117 App. Div. 40, 191 N. Y. 528.)
   Conway, J.

Appellant was convicted of robbery in the first degree. The verdict is entirely dependent upon the complainant’s testimony that there was a robbery and his identification of defendant as the perpetrator of it. The complainant also testified to his identification of the prisoner at Albany police headquarters prior to the trial.

The testimony which requires a reversal here was given by the detective, Conley. Except for minor differences, it is the same as that already given by the complainant Margolius during his direct examination. Conley testified that on March 16, 1951, at the Albany police headquarters, he, Margolius and a detective, Kane, entered a block, containing cells Nos. 7 to 12, so that Margolius might observe a prisoner in cell No. 10 who was booked under the name of Morley. Followed by Kane and Margolius, Conley went to cell No. 10 and was informed by the occupant that his name was Trowbridge. The prisoner in the only other cell occupied, No. 7, stated that his name was Sonleo. Conley then walked the length of the block to cell No. 12 and was about to leave the block to check the records on “ Morley ” when Margolius, who apparently had lagged behind, pointed to cell No. 10 and said: “ That looks like the man there.” The occupant then stated to Conley that his name was 1‘ Trowbridge, but you might have me under Morley.” The prisoner was directed to emerge from his cell and Margolius stated: “ You are the man.”

At that juncture defendant’s counsel objected:

“ [Defendant’s counsel]: * * * The prosecution is seeking to bolster an identification by proving by one witness that Mr. Margolius made an identification which is nothing more than what Mr. Margolius told us. They can’t bolster an identification through proving by another witness.
“ The Court: Isn’t this corroboration, Counsel?
“ [Defendant’s counsel]: I don’t think it is.
“ The Court: I certainly think it is and I overrule your objection.”

The witness Conley then related that defendant, at Margolius ’ direction, repeated the words “ This is a stick-up ” and Margolius said “ That is the man.” Conley testified that that was the full extent of his connection with the case and that the defendant on trial was the same person identified by Margolius at the police station.

A doctor testified for the prosecution that a detective named Kane was unable to appear at the trial due to illness. Presumably that is the detective Kane who, along with Conley, witnessed the previous identification by complainant at headquarters (hereinafter referred to as the previous identification). Appellant urges that it was reversible error to receive detective Conley’s testimony relating to the previous identification. The controversy as to its admissibility centers about section 393-b of the Code of Criminal Procedure: ‘ 1 Testimony of previous identification. When identification of any person is in issue, a witness who has on a previous occasion identified such person may testify to such previous identification. ’ ’

Prior to the enactment of that section, it was a well-settled rule that an identification by a witness, given on a trial, could not be ‘ ‘ bolstered ’ ’ by testimony that the witness had previously made a similar identification. Such ££ hearsay ” testimony was regarded as a ‘ ‘ self-serving performance of no probative value, and yet strongly calculated to influence a jury of laymen not versed in the rules of evidence. ’ ’ (People v. Jung Hing, 212 N. Y. 393,401; and People v. Seppi, 221 N. Y. 62.) The error of permitting evidence of previous consistent statements was stated thus in. People v. Katz (209 N. Y. 311,342): “ * * * it is obviously a mistake to suppose that an untrustworthy story can be made trustworthy by proving numerous repetitions of it; and equally illogical does it appear to be to attempt to support a credible witness and reliable testimony by any such broken reed. ’ ’ The prohibition was, however, the subject of exceptions well explained in People v. Jung Hing (pp. 401-404, supra) and People v. Katz (pp. 336-343, supra). A fair generalization covering those exceptions is that proof of a previously made identification was permissible where a witness, who at the trial identified the defendant, was discredited or impeached and the previous identification had been made at a time when the witness was not subject to the discrediting or impeaching influences. £< The usual contradictions inherent in the differing versions of the opposing witnesses ” did not justify the invocation of the exceptions to the rule (People v. Jung Hing, p. 403, supra). The previous consistent statement was proper for the purpose of rebutting the suggestion that the identification of the witness at the trial was a recent contrivance.” Thus, the testimony when permissible was proof of credibility and not at all substantive or affirmative proof of identity. The Jung Hing rule naturally precluded testimony of a previously made identification whether it was tendered by the person who had made the identification or by one who was a witness to it. (See People v. Ragazinsky, 195 App. Div. 743.)

On direct, complainant Margolius testified to his previous identification of defendant as the perpetrator of the robbery. He was able, on the trial, positively to identify defendant as the person who committed the crime and as the person previously identified. Neither on cross-examination of Margolius nor at any other time during the trial was there anything elicited or insinuated which, under the Jung Hing rule, would have permitted testimony by any witness as to the previous identification. There is a tacit admission to that effect by the District Attorney since he makes no attempt to bring the testimony of the witness Conley within any exception to the Jung Hing rule and concedes that the principle stated in that case “ resulted, of course, in the exclusion of testimony of a prior identification by either the witness making it or others in whose presence it was made.” Whatever impeachment ” there was of Margolius’ identification of defendant on the trial arose from circumstances which affected the previous identification equally as much as that given upon the trial, e.g., Margolius’ lack of opportunity, at the time of the crime, for adequate observation of the robber, his inability to give a detailed description to the police and the fact that no person, other than Margolius, who freed himself without assistance, witnessed the crime. The fact alone that the previous identification was made when Margolius’ recollection presumably was better is not of course sufficient reason in itself for allowing evidence of the previous identification. If the contrary were so, there would have been no Jung Hing rule.

The question then is whether section 393-b of the Code of Criminal Procedure, quoted (supra) at page 475, permits the use of detective Conley’s testimony.

It is of course well established that a statute in derogation of the common law must be strictly construed. (McKinney’s Cons. Laws of N. Y., Book 1, Statutes [1942 ed.], §§ 301, 305.) The statute in question is clear and unambiguous at least insofar as the issue under consideration is concerned. It provides only that that person who made a previous identification may testify thereto. There is nothing in its language to indicate that any person, other than the identifier, is relieved from the prohibitions otherwise existing.

Numerous repetitions by various witnesses of the fact that on a particular occasion an identification was made by a complainant or other person are just as capable of exaggerating, in the minds of lay persons, the probative value of properly received substantive proof of identity, are just as capable of endowing such proof with an undeserved aura of trustworthiness, and are just as apt to have attributed to them some probative effect despite their hearsay character, as is testimony by a witness that on numerous prior occasions he has made an identification similar to that made by him on the witness stand. That the Legislature has seen fit to permit the latter is no valid reason for our saying, in the absence of legislative mandate, that the former must also be allowed. We should read the exception to the common-law rule as the Legislature wrote it and not seek to rewrite it.

Nothing need be said here to emphasize the nature of a conviction based only upon identification testimony such as present here — especially where identity is based upon brief observation by a single witness and where there is no proof of the robbery except the testimony of the same single witness. We Avould be reluctant to say in such a case that any error which is apt improperly to enhance the weight of such testimony is a technical one which may be disregarded. Thus, the complainant was the only one who testified to the robbery and the fact he had been tied up. No one found him tied up because, according to his testimony, he freed himself. He was tied up with his own belt and tie. The whole case against defendant is in the tongue of complainant. The complainant said that, after asldng for some cigarettes as would an average customer, the robber, as complainant reached the place where he was standing, put a handkerchief to his face with his left hand and with his right hand put a gun into ” complainant, told him it was a stick-up and directed him to walk to the rear of the drugstore of which he was manager. There was testimony that defendant was left-handed and bald — and so sensitive about his baldness that he would not take his hat off while indoors. His employer said he had often asked defendant to remove his hat when indoors and he refused. Yet the robber came into the drugstore without a hat and the complainant never described him to the police as bald or as having a receding hairline. Complainant admitted that the defendant on trial had a receding hairline. In answer to a question at the preliminary hearing complainant testified: ‘ ‘ As to his weight, I couldn’t give you a specific figure: as to his height, I couldn’t give you a specific figure: as for his age, I couldn’t give a specific figure; and I believe I was under a little bit of internal strain and stress and those things didn’t seem too important to me at the time. ’ ’

The complainant estimated that he was robbed of $230 which he had in two wallets. He testified he might have said, at the preliminary hearing, that $327 was stolen. He said he did not know how much had been stolen from the cash registers as his employer had been the one who checked them. The robber wore no gloves. The* registers, which complainant heard the robber open, were checked for fingerprints by a Sergeant Foley. Hone was found.

The defendant called five witnesses who testified to an alibi.

This was not an open and shut case. Conley’s testimony may well have been a major influence in bringing about the conviction.

The judgments should be reversed and a new trial ordered.

Fuld, J.

(dissenting). I am inclined to agree that the testimony of the police officer, Conley, as to Margolius’ out-of-court identification of defendant as the robber was inadmissible, but that does not mean that the judgment of conviction should be reversed.

In the light of the victim’s positive and unequivocal trial identification of defendant, particularly in view of the circumstances under which he had made his initial identification, the challenged testimony of the police officer added little, if anything, to the case against defendant. The result would, I am willing to acknowledge, be different, if, as in the case supposed in the court’s opinion (p. 477), the trial judge had permitted a number of other witnesses to testify that a complainant had ‘ ‘ on a particular occasion ” previously identified the accused. In the case before us, however, reception of Conley’s testimony could not, in my judgment, have possibly influenced the jury or affected its verdict.

I would affirm, the conviction under section 542 of the Code of Criminal Procedure.

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

Judgments reversed, etc.


source: Caselaw Access Project

author: Fuld, J.

license: Public Domain

text:
    General Aniline & Film Corporation, Respondent, v. Bayer Company, Inc., et al., Appellants.
    Argued May 27, 1953;
    decided July 14, 1953.

      Paul W. Williams, George 8. Hills and Robert G. Zeller for appellants.
    I. The Federal decree is a complete defense to the complaint in the instant suit and bars the prosecution of the action. (Sawyer v. Dollar, 190 F. 2d 623; Sunshine Coal Co. v. Adkins, 310 U. S. 381; United States v. Willard Tablet Co., 141 F. 2d 141; Nashville, C. & St. L. Ry. Co. v. United States, 113 U. S. 261; Pacific R. R. v. Ketchum, 101 U. S. 289; Swift & Co. v. United States, 276 U. S. 311; Chapman v. Forbes, 123 N. Y. 532.) II. The decree prohibiting performance by defendants of the contract excuses such performance. (Operators’ Oil Co. v. Barbre, 65 F. 2d 857; Moller v. Herring, 255 F. 670; People v. Globe Mut. Life Ins. Co., 91 N. Y. 174; Paramount Famous Lasky Corp. v. National Theatre Corp., 49 F. 2d 64.) III. The Federal decree forbidding defendants from carrying out or enforcing the contract has frustrated the purpose of the contract and has resulted in failure of the consideration for defendants’ obligations under the contract. (Matter of People [Bond & Mtge. Guar. Co.], 267 N. Y. 419; Lorillard v. Clyde, 142 N. Y. 456; Marks Realty Co. v. Hotel Hermitage Co., 170 App. Div. 484; Jackson & Co. v. Royal Norwegian Govt., 177 F. 2d 694.) IV. The second affirmative defense properly pleads the termination of the alleged assignment. (Woolley v. Newcombe, 87 N. Y. 605.)

      Herbert L. Abrons, Donald O. Lincoln, Eugene L. Stewart and Kathryn V. Crean for respondent.
    I. The consent decree does not bar this action. (Pennoyer v. Neff, 95 U. S. 714; Hansberry v. Lee, 311 U. S. 32; Matter of New York State Labor Relations Bd. v. Holland Laundry, 294 N. Y. 480; United States v. National Lead Co., 63 F. Supp. 513,332 U. S. 319; Nat. Licorice Co. v. Labor Bd., 309 U. S. 350; Diamond v. Davis, 263 App. Div. 68.) II. The consent decree does not deprive the court of jurisdiction of this action. (Board of Comrs. v. Tollman, 145 F. 753; United States v. Bryan, 339 U. S. 323; De Beers Mines v. United States, 325 U. S. 212; General Investment Co. v. Interborough R. T. Co., 235 N. Y. 133; Richman v. Consolidated Gas Co., 186 N. Y. 209; Grossman v. Consolidated Gas Co., 186 N. Y. 541; Zenie v. Miskend, 270 N. Y. 636.) III. The consent decree does not excuse defendants’ performance. (Mahr v. Norwich Union Fire Ins. Soc., 127 N. Y. 452; Nitro Powder Co. v. Agency of Canadian Car & Foundry Co., 233 N. Y. 294; Seedman v. Friedman, 132 F. 2d 290; Patterson v. Meyerhofer, 204 N. Y. 96; Wilkinson v. First Nat. Fire Ins. Co., 72 N. Y. 499.) IV. The Attorney General’s ownership of plaintiff’s stock has no effect on this action. (Kaufman v. Societe Internationale, 343 U. S. 156; Klein v. Board of Supervisors, 282 U. S. 19; Brock v. Poor, 216 N. Y. 387; Amtorg Trading Corp. v. United States, 71 F. 2d 524.) V. The second affirmative defense is not properly before the court and is insufficient in law because it pleads conclusions of law and not ultimate facts. (Willey v. Cameron, Michel & Co., 217 App. Div. 651; Ward v. Brady, 63 Misc. 435; Family Finance Corp. v. National Sur. Corp., 180 Misc. 496; Lazar v. Steinberg, 269 App. Div. 760; Stroock Plush Co. v. Talcott, 129 App. Div. 14; Levy v. Cohen, 103 App. Div. 195; Seaton v. Board of Educ., 253 App. Div. 736.)

      Edward P. Hodges, Acting Assistant Attorney General, Ralph S. Spritzer, Special Assistant to the Attorney General, anff Wilbur L. Fugate and Daniel H. Margolis, Attorneys, Depar
      ment of Justice, for United States of America, amicus curiæ.

    f. The Federal court’s injunction against defendants is valid and binding. (United States v. National Lead Co., 63 F. Supp. 513, 332 U. S. 319; Nat. Licorice Co. v. Labor Bd., 309 U. S. 350; United States v. Swift & Co., 286 U. S. 106; Pope v. United States, 323 U. S. 1.) II. In the face of the outstanding Federal decree, an unconditional New York judgment could not be entered in favor of plaintiff and plaintiff should be remitted to its Federal remedies. (Paramount Famous Lasky Corp. v. National Theatre Corp., 49 F. 2d 64; Torquay Corp. v. Radio Corp. of America, 2 F. Supp. 841; St. Louis Amusement Co. v. Paramount Pictures, 61 F. Supp. 854.) III. It was error to strike the defense of impossibility.
   Fuld, J.

In this action, for breach of contract and for money had and received, a certified question calls upon us to consider the legal sufficiency of two separate and affirmative defenses.

According to the complaint, defendant Bayer in 1923 entered into a written agreement — termed an ‘ ‘ international cartel arrangement ” (per Hecht, J., 188 Misc. 929, 930) — with a German corporation, Farbenfabriken Vorm. Friedr. Bayer & Company of Leverkusen. The parties agreed to divide the markets throughout the world, specifying the countries in which each was to have the exclusive right to sell its respective products and to use the “ Bayer ” trade-marks. Defendant Bayer, in addition, covenanted to pay the German company, for upwards of fifty years, a sum equal to one half of the net profits derived from all its business in Cuba. Some time later, the complaint continues, the profits due the German corporation under the agreement were assigned to General Aniline Works, Inc.— which in 1939 was merged into plaintiff. The complaint then goes on to recite that each German company duly performed all the conditions imposed upon it; that for the ten-year period from 1930 to 1940, defendant Bayer paid profits of over $600,000 as provided for in the agreement; that defendants Bayer and Sterling earned ‘ ‘ large ’ ’ profits during the years 1941 to 1944, which have not been paid; and that plaintiff has suffered damages of $1,000,000, the amount for which judgment is sought.

In their answer, defendants set forth two separate defenses; they have been stricken by the courts below, and, as indicated, it is with them that the appeal is concerned.

One of the defenses challenges the assignment of the contract to plaintiff, and, as to that defense, we need but say that it was properly stricken upon the ground that it speaks in legal conclusions and is framed in contingent and hypothetical terms. (See Stroock Plush Co. v. Talcott, 129 App. Div. 14, 17-18; Family Finance Corp. v. National Sur. Corp., 180 Misc. 496.)

The other defense, founded on impossibility of performance, sets forth that in 1941 the government instituted a proceeding against Bayer and Sterling in the United States District Court for the Southern District of New York, charging them with a violation of the federal antitrust laws. Defendants, the answer further alleges, consented to the entry of a decree, which declared and adjudged the agreement, upon which Aniline now sues, “ unlawful ” under the antitrust laws and enjoined Bayer and Sterling from “ carrying out or enforcing ” said agreement or from paying ” Farben or its assigns any i-oyalties or share of profits ” pursuant to its terms. Neither Aniline nor its assignor was a party to that antitrust action or in any way privy to the decree.

Were the defense of impossibility held sufficient, Aniline would, in effect, be bound, in contravention of established principles of Anglo-American jurisprudence, by a judgment in personam in an action to which it was not a party and in which it had no opportunity to be heard. (See Matter of New York State Labor Relations Bd. v. Holland Laundry, 294 N. Y. 480, 493-494; Wilkinson v. First Nat. Fire Ins. Co., 72 N. Y. 499; Hansberry v. Lee, 311 U. S. 32, 40-41; see, also, Restatement, Judgments [1942], pp. 5-9; §§ 2, 5, 6.) Whatever the rule might be if the plea were based upon a decree rendered in a contested action, the defense lacks validity where, as here, the judgment was entered upon defendants’ consent. (See, e.g., Oseas, Antitrust Prosecutions of International Business, 30 Corn. L. Q, 42,58-59.)

Moreover, although a consent decree is decisive as between the parties to the antitrust proceeding itself (see Swift & Co. v. United States, 276 U. S. 311; Nashville, C. & St. L. Ry. Co. v. United States, 113 U. S. 261), in a suit brought by some third party, it is not only not conclusive, but not even usable or admissible against the consenting defendants. (38 U. S. Stat. 731, U. S. Code, tit. 15, § 16; see Bausch Mach. Tool Co. v. Aluminum Co. of America, 79 F. 2d 217, 226; Twin Ports Oil Co. v. Pure Oil Co., 26 F. Supp. 366, 371-372; Diamond v. Davis, 263 App. Div. 68, 69.) Since, then, in such a situation, the decree could not be relied upon against the very parties who agreed to its entry, it would be almost unthinkable to allow them to invoke its provisions against a stranger.

Nor is the circumstance that it is the government that brought the antitrust suit sufficient to change settled principles. The government does, it is true, possess the power to strike down “ systems deemed violative of the anti-trust laws even though such systems included leases, licenses, and other forms of agreements, and the lessees, licensees, and other parties to the agreements [are] not before the court.” (United States v. National Lead Co., 63 F. Supp. 513, 525, n. 8, affd. 332 U. S. 319; see, also, Hartford-Empire Co. v. United States, 324 U. S. 570, 572-574.) However, as the Supreme Court has noted in a somewhat analogous situation, such an order is ineffective to determine [the] private rights ” of those not joined as parties, and strangers to the proceeding are free to assert such legal rights as they may have acquired under their contracts, in any appropriate tribunal ”. (National Licorice Co. v. Labor Bd., 309 U. S. 350,366.) And so in the case before us. Aniline has a right to be heard on its claim that the agreement between its assignor and defendants is lawful, and it may not be foreclosed from litigating that claim because defendants saw fit to consent to a judgment declaring the agreement unlawful. However willing defendants may have been to relinquish their own rights under that contract, however ready to absolve themselves from liability, they certainly had no authority or power to extinguish Aniline’s claim.

Defendants may, of course, still defend upon the ground that the contract sued upon runs afoul of the antitrust laws and is, therefore, illegal. (See Metropolitan Opera Co. v. Hammerstein, 221 N. Y. 507, affg. 162 App. Div. 691; Ainsworth v. Cooper Underwear Co., 227 App. Div. 837; Brett v. Ebel, 29 App. Div. 256.) Striking the defense of impossibility, which in a sense presupposes illegality, bars defendants only from obtaining an adjudication of invalidity without tendering the issue for decision. They may not interpose a defense that would deprive Aniline of a day in court and defeat its claim even before it is heard. Indeed, the federal court that made the decree has rejected a like effort on the government’s part to have the 1941 determination of illegality adjudged conclusive against Aniline in a pending federal suit (see United States v. Bayer Co., 105 F. Supp. 955, per Sugarman, J.; United States v. Bayer Co., U. S. Dist. Ct., S. D. N. Y., Oct. 16,1952, per Clancy, J.), and no reason exists why we should accord greater efficacy to the judgment than did the very court that issued it. The defense of impossibility of performance was, therefore, properly stricken.

That disposes of the appeal, and there we would conclude, but for the fact that, in the years that have passed since the decision at Special Term, the situation has changed. Aniline has been added as a party defendant in the federal antitrust suit. In January, 1952, the government filed a supplemental complaint in the United States District Court, charging Aniline, as assignee of Farben, with participation in the conspiracy originally charged against Bayer and Sterling and seeking a judgment declaring the agreement unlawful and enjoining Aniline from enforcing its provisions. Aniline is thereby assured an opportunity of having the agreement’s legality tried out, with all interested parties represented, by the same court that rendered the consent decree.

A question that naturally presents itself is where the issues involved should first be tried. Its answer depends, of course, upon considerations of comity and orderly procedure. Accordingly, should a stay of the present action be sought, it will be pertinent to consider, among other matters, whether it is in the state or in the federal forum that a more complete disposition of the issues may be obtained and whether it is the federal or the state court that possesses a greater familiarity and expertise with the trial of such issues. (Cf., e.g., Royal China v. Regal China Corp., 304 N. Y. 309; Langfelder v. Universal Laboratories, 293 N. Y. 200, 206; Dederick v. North Amer. Co., 48 F. Supp. 410, 412; also, Consent Decrees and Absent Cartel Participants, 56 Yale L. J. 396, 401.) Since such considerations are, in the first instance, for the court at Special Term, we express no opinion thereon.

The order appealed from should be affirmed, with costs, and the question certified answered in the affirmative, without prejudice, however, to an application by defendants at Special Term for a stay pending determination of the proceedings in the federal court, initiated by the government’s supplemental complaint joining Aniline as a party defendant.

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

Order affirmed, etc.

      . Bayer was dissolved in 1942, since which time all of its business has been conducted and carried on by defendant Sterling, its sole stockholder.

      . In 1926, a second agreement was executed, under which I. G. Farbenindustrie Aktiengesellschaft was substituted for Bayer of Leverkusen.


author: Lewis, Ch. J. Desmond, J.

text:
    In the Matter of the Estate of Fannie May, Deceased. Alice M. Greenberg et al., Appellants; Sam May et al., Respondents.
    Argued April 20, 1953;
    decided July 14, 1953.

      Helen M. Clark for appellants.
    I. Petitioner-appellant is entitled to letters of administration by virtue of section 118 of the Surrogate’s Court Act. (Audley v. Audley, 196 App. Div. 103; Matter of Dobess Realty Corp. v. Magid, 186 Misc. 225; People ex rel. Knott Management Corp. v. Graves, 286 N. Y. 377; “ Smith ” v. “ Smith ”, 179 Misc. 19; Matter of Incuria v. Incuria, 155 Misc. 755; People ex rel. Bd. of Supervisors of Rockland Co. v. Travis, 184 App. Div. 730; People ex rel. Jackson v. Potter, 47 N. Y. 375; Van Voorhis v. Brintnall, 86 N. Y. 18; Cunningham v. Cunningham, 206 N. Y. 341; Cruickshank v. Cruickshank, 193 Misc. 367.) II. It was an abuse of discretion for the Appellate Division to award costs to objectant as against respondent personally. (Matter of Page, 107 N. Y. 266; Matter

      of Shapiro [Cohn], 147 Misc. 526; Matter of Reimers, 261 N. Y. 337; Matter of Boyer, 54 Misc. 182; Matter of Ordway, 196 N. Y. 95; Texido v. Merical, 132 Misc. 764; Perrin v. Harrington, 146 App. Div. 292; Day v. Town of New Lots, 107 N. Y. 148.)

      Morton L. Kimmelman and Matthew H. Bowcock for respondents.
    I. A marriage valid where contracted is valid in this jurisdiction. (Van Voorhis v. Brintnall, 86 N. Y. 18; Thorp v. Thorp, 90 N. Y. 602; Cunningham v. Cunningham, 206 N. Y. 341; Weisberg v. Weisberg, 112 App. Div. 231; Stevenson v. Gray, 56 Ky. 193; Fersterwald v. Burk, 129 Md. 131; Burnside v. Whitney, 21 N. Y. 148; Matter of Carnegie Trust Co., 151 App. Div. 606, 206 N. Y. 390; People v. Bord, 243 N. Y. 595; Earle v. Earle, 141 App. Div. 611.) II. Sound public policy requires recognition of this marriage. (Cunningham v. Cunningham, 206 N. Y. 341.)
   Lewis, Ch. J.

In this proceeding, involving the administration of the estate of Fannie May, deceased, we are to determine whether the marriage in 1913 between the respondent Sam May and the decedent, who was his niece by the half blood — which marriage was celebrated in Rhode Island, where concededly such marriage is valid — is to be given legal effect in New York where statute law declares incestuous and void a marriage between uncle and niece. (Domestic Relations Law, § 5, subd. 3.)

The question thus presented arises from proof of the following facts: The petitioner Alice May Greenberg, one of six children born of the Rhode Island marriage of Sam and Fannie May, petitioned in 1951 for letters of administration of the estate of her mother Fannie May, who had died in 1945. Thereupon, the respondent Sam May, who asserts the validity of his marriage to the decedent, filed an objection to the issuance to petitioner of such letters of administration upon the ground that he is the surviving husband of the decedent and accordingly, under section 118 of the Surrogate’s Court Act, he has the paramount right to administer her estate. Contemporaneously with, and in support of the objection filed by Sam May, his daughter Sirel Lenrow and his sons Harry May and Morris B. May — who are children of the challenged marriage — filed objections to the issuance of letters of administration to their sister, the petitioner, and by such objections consented that letters of administration be issued to their father Sam May.

The petitioner, supported by her sisters Ruth Weisbrout and Evelyn May, contended throughout this proceeding that her father is not the surviving spouse of her mother because, although their marriage was valid in Rhode Island, the marriage never had validity in New York where they were then resident and where they retained their residence until the decedent’s death.

The record shows that for a period of more than five years prior to his marriage to decedent the respondent Sam May had resided in Portage, Wisconsin; that he came to New York in December, 1912, and within a month thereafter he and the decedent — both of whom were adherents of the Jewish faith— went to Providence, Rhode Island, where, on January 21, 1913, they entered into a ceremonial marriage performed by and at the home of a Jewish rabbi. The certificate issued upon that marriage gave the age of each party as twenty-six years and the residence of each as New York, N. Y.”. Two weeks after their marriage in Rhode Island the respondent May and the decedent returned to Ulster County, New York, where they lived as man and wife for thirty-two years until the decedent’s death in 1945. Meantime the six children were born who are parties to this proceeding.

A further significant item of proof — to which more particular reference will be made — was the fact that in Rhode Island on January 21, 1913, the date of the marriage here involved, there were effective statutes which prohibited the marriage of an uncle and a niece, excluding, however, those instances — of which the present case is one — where the marriage solemnized is between persons of the Jewish faith within the degrees of affinity and consanguinity allowed by their religion.

In Surrogate’s Court, where letters of administration were granted to the petitioner, the Surrogate ruled that although the marriage of Sam May and the decedent in Rhode Island in 1913 was valid in that State, such marriage was not only void in New York as opposed to natural law but is contrary to the provisions of subdivision 3 of section 5 of the Domestic Relations Law. Accordingly the Surrogate concluded that Sam May did not qualify in this jurisdiction for letters of administration as the surviving spouse of the decedent.

At the Appellate Division the order of the Surrogate was reversed on the law and the proceeding was remitted to Surrogate’s Court with direction that letters of administration upon decedent’s estate be granted to Sam May who was held to be the surviving spouse of the decedent. In reaching that decision the Appellate Division concluded that the 1913 marriage of Sam May and the decedent in Bhode Island, being concededly valid in that State, is valid in New York where the degree of consanguinity of uncle and niece is not so close as to be repugnant to our concept of natural law, and that the statute (Domestic Belations Law, § 5, subd. 3) —which declares such a marriage to be incestuous and void — -lacks express language which gives it extraterritorial force. The case comes to us upon appeal as of right by the petitioner and her two sisters Buth Weisbrout and Evelyn May.

We regard the law as settled that, subject to two exceptions presently to be considered, and in the absence of a statute expressly regulating within the domiciliary State marriages solemnized abroad, the legality of a marriage between persons s'ui juris is to be determined by the law of the place where it is celebrated. (Van Voorhis v. Brintnall, 86 N. Y. 18, 24; Thorp v. Thorp, 90 N. Y. 602, 605-606; Moore v. Hegemon, 92 N. Y. 521, 524; Medway v. Needham, 16 Mass. 157, 159-160; Fensterwald v. Burk, 129 Md. 131; Restatement, Conflict of Laws, §§ 121. 131, 132; Story on Conflict of Laws [7th ed.], § 113; 2 Beale, Conflict of Laws, pp. 669-670; 1 Bishop on Marriage, Divorce and Separation, § 856.)

In Van Voorhis v. Brintnall (supra) the decision turned upon the civil status in this State of a divorced husband and his second wife whom he had married in Connecticut to evade the prohibition of a judgment of divorce which, pursuant to New York law then prevailing, forbade his remarriage until the death of his former wife. In reaching its decision, which held valid the Connecticut marriage there involved, this court noted the fact that in the much earlier case of Decouche v. Savetier (3 Johns. Ch. 190, 211 [1817]), Chancellor Kent had recognized the general principle “ * * * that the rights dependent upon nuptial contracts, are to be determined by the lex loci.” Incidental to the decision in Van Voorhis v. Brintnall (supra) which followed the general rule that‘ ‘ * * * recognizes as valid a marriage considered valid in the place where celebrated ” {id., p. ,25), this court gave careful consideration to, and held against the application of two exceptions to that rule — viz., cases within the prohibition of positive law; and cases involving polygamy or incest in a degree regarded generally as within the prohibition of natural law.

We think the Appellate Division in the case at bar rightly held that the principle of law which ruled Van Voorhis v. Brintnall and kindred cases cited (supra) was decisive of the present case and that neither of the two exceptions to that general rule is here applicable.

The statute of New York upon which the appellants rely is subdivision 3 of section 5 of the Domestic Relations Law which, insofar as relevant to our problem, provides:

“ § 5. Incestuous and void marriages.
1 ‘ A marriage is incestuous and void whether the relatives are legitimate or illegitimate between either:
£ £ 2 * * *
“ 2. * * *
‘ 3. An uncle and niece or an aunt and nephew.
‘ ‘ If a marriage prohibited by the foregoing provisions of this section be solemnized it shall be void, and the parties thereto shall each be fined not less than fifty nor more than one hundred dollars and may, in the discretion of the court in addition to said fine, be imprisoned for a term not exceeding six months. Any person who shall knowingly and wilfully solemnize such marriage, or procure or aid in the solemnization of the same, shall he deemed guilty of a misdemeanor and shall be fined or imprisoned in like manner.”

Although the New York statute quoted above declares to be incestuous and void a marriage between an uncle and a niece and imposes penal measures upon the parties thereto, it is important to note that the statute does not by express terms regulate a marriage solemnized in another State where, as in our present case, the marriage was concededly legal. In the case at hand, as we have seen, the parties to the challenged marriage were adherents of the Jewish faith which, according to Biblical law and Jewish tradition — made the subject of proof in this case — permits a marriage between an uncle and a niece; they were married by a Jewish rabbi in the State of Bhode Island where, on the date of such marriage in 1913 and ever since, a statute forbidding the marriage of an uncle and a niece was expressly qualified by the following statutory exceptions appearing in 1913 in Bhode Island General Laws (tit. XXIV, ch. 243, §§ 4, 9; now tit. XXXVI, ch. 415, §§ 4, 9):

“ § 4. The provisions of the preceding sections shall not extend to, or in any way affect, any marriage which shall be solemnized among the Jews, within the degrees of affinity or consanguinity allowed by their religion.”
“ § 9. Any marriage which may be had and solemnized among the people called Quakers, or Friends, in the manner and form used or practised in their societies, or among persons professing the Jewish religion, according to their rites and ceremonies, shall be good and valid in law; and wherever the words ‘ minister ’ and ‘ elder ’ are used in this chapter, they shall be held to include all of the persons connected with the society of Friends, or Quakers, and with the Jewish religion, who perform or have charge of the marriage ceremony according to their rites and ceremonies.”

As section 5 of the New York Domestic Belations Law (quoted, supra) does not expressly declare void a marriage of its domiciliarles solemnized in a foreign State where such marriage is valid, the statute’s scope should not be extended by judicial construction. (Van Voorhis v. Brintnall, supra, p. 33.) Indeed, had the Legislature been so disposed it could have declared by. appropriate enactment that marriages contracted in another State — which if entered into here would be void — shall have no force in this State. (Putnam v. Putnam, 25 Mass. 433, 435.) Although examples of such legislation are not wanting , we find none in New York which serve to give subdivision 3 of section 5 of the Domestic Belations Law extraterritorial effectiveness. (Van Voorhis v. Brintnall, supra, pp. 25-37.) Accordingly, as to the first exception to the general rule that a marriage valid where performed is valid everywhere, we conclude that, absent any New York statute expressing clearly the Legislature’s intent to regulate within this State marriages of its domiciliaries solemnized abroad, there is no “ positive law ” in this jurisdiction which serves to interdict the 1913 marriage in Rhode Island of the respondent Sam May and the decedent.

As to the application of the second exception to the marriage here involved — between persons of the Jewish faith whose kinship was not in the direct ascending or descending line of consanguinity and who were not brother and sister — we conclude that such marriage, solemnized, as it was, in accord with the ritual of the Jewish faith in a State whose legislative body has declared such a marriage to be 11 good and valid in law ”, was not offensive to the public sense of morality to a degree regarded generally with abhorrence and thus was not within the inhibitions of natural law.

A remaining point relates to an assertion by the petitioner-appellant that it was an abuse of discretion for the Appellate Division to have awarded costs against her personally. The award of costs in the Appellate Division was a matter of statutory discretion (Surrogate’s Ct. Act, § 283, subd. 2) with which we will not interfere.

The decree of the Surrogate’s Court should be affirmed, with one bill of costs to respondents, payable out of the estate.

Desmond, J.

(dissenting). It is fundamental that every State has the right to determine the marital status of its own citizens (Maynard v. Hill, 125 U. S. 190; Hunt v. Hunt, 131 U. S., Appendix, clxv; Kinnier v. Kinnier, 45 N. Y. 535, 544; Wade v. Kalbfleisch, 58 N. Y. 282; Cunningham v. Cunningham, 206 N. Y. 341, 347; Bell v. Little, 204 App. Div. 235, 237, affd. 237 N. Y. 519). Exercising that right, New York has declared in section 5 of the Domestic Relations Law that a marriage between uncle and niece is incestuous, void and criminal. Such marriages, while not within the Levitical forbidden degrees of the Old Testament, have been condemned by public opinion for centuries (see 1 Bishop on Marriage, Divorce and Separation, § 738), and are void, by statute in (it would seem) forty-seven of the States of the Union (all except Georgia, see Martindale-Hubbel, Law Digests, and except, also, that Bhode Island, one of the forty-seven, exempts from its local statute ‘ any marriage which shall be solemnized among the Jews, within the degrees of affinity or consanguinity allowed by their religion ’ ’, Gen. L. of B. I., ch. 415, § 4). It is undisputed here that this uncle and niece were both domiciled in New York in 1913, when they left New York for the sole purpose of going to Bhode Island to be married there, and that they were married in that State conformably to its laws (see above) and immediately returned to New York and ever afterwards resided in this State. That Bhode Island marriage, between two New York residents, was, in New York, absolutely void for any and all purposes, by positive New York law which declares a strong public policy of this State (see Penal Law, § mo).

The general rule that “ a marriage valid where solemnized is valid everywhere ” (see Restatement, Conflict of Laws, § 121) does not apply. To that rule there is a proviso or exception, recognized, it would seem, by all the States, as follows: unless contrary to the prohibitions of natural law or the express prohibitions of a statute ” (see Thorp v. Thorp, 90 N. Y. 602, 605). Section 132 of the Bestatement of Conflict of Laws states the rule apparently followed throughout America: A marriage which is against the law of the state of domicil of either party, though the requirements of the law of the state of celebration have been complied with, will be invalid everywhere in the following cases: * * # (b) incestuous marriage between persons so closely related that their marriage is contrary to a strong public policy of the domicil ” (see 35 Am. Jur., Marriage, § 180; 55 C. J. S., Marriage, § 16; Grosman, New York Law of Domestic Relations, § 34). The old and famous New York case of Wightman v. Wightman (4 Johns. Ch. 343, 349, 350), decided in 1820 when there were no marriage statutes in our State, says that marriages may be declared by ‘ ‘ appropriate legislation ’ ’, to be incestuous. New York, as a sovereign State with absolute powers over the marital status of its citizens, has enacted such legislation, but we, by this decision, are denying it efficacy.

Van Voorhis v. Brintnall (86 N. Y. 18) does not save this marriage. That case dealt not with a marriage void under sectian 5 of the. Domestic Relations Law, but one forbidden by section 8 thereof. Section 8 forbids the guilty party, in a New York divorce judgment, to marry again within a certain time, and the Van Voorhis ruling was that, by section 8, the Legislature did not intend to make such marriages contracted outside this State absolutely void, but merely stated an in personam prohibition against the adjudged adulterer marrying, for a period of time (see analysis of Van Voorhis v. Brintnall in Mitchell v. Mitchell, 63 Misc. 580, 586). This court’s opinion in the Van Voorhis case, while stating the general rule that the validity of a marriage depends on the law' of the place of marriage, noted that there are exceptions thereto in cases of incest, within the prohibition of natural law, and “ prohibition by positive law ” (86 N. Y., at p. 26). Section 5 of the Domestic Relations Law, the one we are concerned with here, lists the marriages which are incestuous and void ” in New York, as being those between parent and child, brother and sister, uncle and niece, and aunt and nephew. All such misalliances are incestuous, and all, equally, are void. The policy, language, meaning and validity of the statute are beyond dispute. It should be enforced by the courts.

The order should be reversed and the proceeding remitted to the Surrogate for appropriate proceedings, with costs to abide the event.

Conway, Dyé, Fuld and Fboessel, JJ., concur with Lewis, Ch. J.; Desmond, J., dissents in opinion; Van Voobhis, J., taking-no part.

Decree affirmed.

       See 2 Beale, Conflict of Laws, § 129.6, p. 683, and statutes there collated.


author: Desmond, J.

text:
    The People of the State of New York, Appellant, v. Rufus A. Learnard, Respondent.
    Argued June 5, 1953;
    decided July 14, 1953.

      Clinton S. Cole, District Attorney (William J. Crangle, Jr., of counsel), for appellant.
    I. The information is sufficient to charge a crime. (Fleming v. People, 27 N. Y. 329.) II. The facts alleged in the information were proven beyond a reasonable doubt. III. The judgment of reversal in the County Court was based solely upon the construction of the Vehicle and Traffic Law and was not a reversal upon the facts. IV. The Vehicle and Traffic Law grants no exemption from registration to vehicles engaged in any transportation for hire wherein such vehicles move solely between points in the State of New York.

      Nathaniel L. Goldstein, Attorney-General (John C. Crary, Jr., Wendell P. Brown and Robert W. Bush of counsel), for Commissioner of Motor Vehicles, amicus curies, in support of appéllant’s position.
    I. The Vehicle and Traffic Law grants no exemption from registration to vehicles engaging in any transportation for hire wherein such vehicles move solely between points in the State of New York. (Kane v. New Jersey, 242 U. S. 160; Storaasli v. Minnesota, 283 U. S. 57; Stephenson v. Binford, 287 U. S. 251; Hendrick v. Maryland, 235 U. S. 610; S. C. Hwy. Dept. v. Barnwell Bros., 303 U. S. 177; Mid-States Frgt. Lines v. Bates, 304 N. Y. 700, 345 U. S. 908; California v. Zook, 336 U. S. 725; Fry Roofing Co. v. Wood, 344 U. S. 157; People v. Horton Motor Lines, 281 N. Y. 196.) II. The driver of a vehicle other than the owner not registered as required by the Vehicle and Traffic Law may properly be convicted of a violation of subdivision 1 of section 11 thereof. (People v. Speciale, 273 N. Y. 413.)

      Roger H. Williams and Clarence E. Williams for respondent.
    I. The conviction of defendant, an employee, was improper. (People v. Underhill, 267 App. Div. 833; People v. Speciale, 273 N. Y. 413.) II. The prosecution failed to prove the guilt of defendant beyond a reasonable doubt. (People v. Belcher, 302 N. Y. 529; People v. Jacoby, 304 N. Y. 33.) III. The Court of Appeals under the circumstances here has jurisdiction to consider this entire case. IV. Defendant was not transporting “ property for hire or profit from one point in this state to another point in this state ”, within the meaning of subdivision 3 of section 51 of the Vehicle and Traffic Law of this State. (Shuba v. Greendonner, 271 N .Y. 189; Gimenez v. Great Atlantic & Pacific Tea Co., 242 App. Div. 485; Anderson v. Title Guar. & Trust Co., 160 Misc. 881, 248 App. Div. 895; People ex rel. Steckler v. Warden of City Prison, 259 N. Y. 430; Sharkey v. Thurston, 268 N. Y. 123; People v. Horton Motor Lines, 281 N. Y. 196; People v. Elmore, 277 N. Y. 397; People v. Russell, 266 N. Y. 147; New Jersey v. Garford Trucking, 4 N. J. 346; Matter of Libertucci v. New York Central R. R. Co., 252 N. Y. 182.)
   Desmond, J.

Defendant, a New York resident employed by a Delaware corporation, was convicted, after a trial before a Court of Special Sessions in Montgomery County, of a violation of subdivision 1 of section 11 of the Vehicle and Traffic Law, on a finding that he had operated, on a public highway in that county, a motor vehicle not registered and licensed in New York State. The vehicle consisted of two units, one a motor tractor which had been registered and licensed in Rhode Island, and the other a trailer, registered and licensed in North Carolina. On the trailer, at the time of the alleged violation, were several lots of merchandise, all in their original packages, which were being transported by defendant’s employer, in interstate commerce, on a single waybill, from a consignor in Baltimore, Maryland, to a consignee in Fort Plain, N. Y. The journey of these particular goods from Baltimore to Fort Plain had, .however, been interrupted at Utica, N. Y., in that, after first having been carried from Baltimore to Utica in another vehicle operated by defendant’s employer, they had lain, for some short period of time, in that employer’s warehouse in Utica, whence they were being carried to Fort Plain in the motor equipment driven by defendant when defendant was arrested. Thus, the tractor, unregistered in New York, was being driven on our highways in a way that fell afoul of subdivision 3 of section 51 of the Vehicle and Traffic Law, which denies exemption from New York registration for any motor vehicle, whether owned by a resident or nonresident, ‘ ‘ which is operated on any public highway of this state to transport * * * property for hire or profit from one point in this state to another point in this state ”. Although the record could be clearer as to the precise facts, it was satisfactorily shown that, regardless of the original shipping point of this merchandise, this tractor was, in pulling the trailer from one city to another in this State, without New York registration, violating the plain terms of the statute.

On appeal from the conviction, however, the County Judge, being of the opinion that the statute, if construed to cover this vehicle while so engaged, would be unconstitutional as unlawfully burdening interstate commerce, gave it a different meaning, and reversed the conviction, on the law, and dismissed the information. Defendant, so held the County Court, was within the exemption from registration found in subdivision 1 of section 51 of the Vehicle and Traffic Law, which makes registration unnecessary for a motor vehicle owned by a nonresident, provided that such owner has complied with the registration law of his own State and provided, also, that his own State grants, reciprocally (as do both Rhode Island and North Carolina) a like privilege and exemption to our residents. In other words, the County Court found, in subdivision 1 of section 51, an exemption as to the owner of this vehicle because this owner was a nonresident from a reciprocity-granting State, and the court refused to apply to this tractor the exception in subdivision 3 {supra), as to operation from one point to another in this State, because, so the County Court held, the literal application of that exception, so as to require New York registration in such a case as this, would be an unconstitutional interference with interstate commerce. We disagree, since we find the statutes entirely clear and patently applicable here, and in no sense unconstitutional as applied to this defendant, under these circumstances.

Sections 11 and 51 of the Vehicle and Traffic Law are lengthy and wordy but so far as material here they contain: first (in § 11, subd. 1), a prohibition against the operation of any motor vehicle on the public highways of the State without first being registered under New York law; second (in § 51, subd. 1), an exemption as to vehicles owned by nonresidents of this State whose States grant reciprocal exemptions; and, third (in § 51, subd, 3) an exception from the exemption first mentioned, which exception requires licensing of vehicles owned by nonresidents, despite reciprocity, if those vehicles transport persons or goods for hire between points in this State. So read and applied to vehicles, like that driven by defendant, which carry or haul property moving in interstate commerce, the New York laws do, of course, impose a burden ”, of sorts, on that commerce. But the States, under the police power, may, without violating the commerce clause, regulate the use of their own highways and exact compensation for their use, and, for that purpose, may impose moderate, reasonable, uniform, nondiscriminatory registration regulations and fees, even on vehicles engaged directly in interstate commerce, at least so long as the State regulations do not contravene congressional enactments on the same subject (Hendrick v. Maryland, 235 U. S. 610; Kane v. New Jersey, 242 U. S. 160; South Carolina Hwy. Dept. v. Barnwell Bros, 303 U. S. 177; Duckworth v. Arkansas, 201 Ark. 1123, affd. 314 U. S. 390; California v. Zook, 336 U. S. 725, 735; Aero Tr. Co. v. Commissioners, 332 U. S. 495; Buck v. California, 343 U. S. 99, 102, rehearing denied 343 U. S. 932; Fry Roofing Co. v. Wood, 344 U. S. 157,162; Mid-States Frgt. Lines v. Bates, 304 N. Y. 700, certiorari denied 345 U. S. 908). Nothing in People v. Horton Motor Lines (281 N. Y. 196), applies here, since the tax there illegally imposed on defendant’s trucks moving in interstate commerce, was, as this court clearly showed, not a police regulation as to highways, but an occupation tax (see 281 N. Y., p. 203)..

The Federal Motor Carrier Act (U. S. Code, tit. 49, § 301 et seq.) not only does not so occupy this field as to exclude State registration requirements, of vehicles engaged in interstate commerce, but specifically states that it shall not ‘ ‘ affect the powers of taxation of the several States ” (U. S. Code, tit. 49, § 302, subd. [b]).

Thus it appears that the State of New York might have imposed its local registration statute on all vehicles, no matter by whom owned — those moving in interstate commerce as well as others ” (Hendrick v. Maryland, supra, 235 U. S., at p.. 622). Though such is its power, this State, as a matter of policy, exempts out-of-State-owned vehicles (if there be reciprocity) but withholds that exemption from vehicles operating for profit between points in this State. None of the material called to our attention by respondent, in the form of legislative documents, reports, Attorney-General’s opinions, etc., could, or does, change the plainly stated meaning of sections 11 and 51 {supra).

Since the offense here consisted of driving an unlicensed vehicle, defendant, being the driver, could not escape prosecution by showing that another was the owner.

The order of the County Court should be reversed, but, since that court’s reversal was on the law, the case must be remitted to the County Court for determination on the facts (Code Crim. Pro., § 543-a; People v. Kruger, 302 N. Y. 447).

Lewis, Ch. J., Conway, Dye, Fuld, Fboessbl and Van Voobhis, JJ., concur.

Order reversed, etc.


author: Conway, J.

text:
    In the Matter of Victor E. De Lynn, Appellant, against James R. Macduff, as Commissioner of Motor Vehicles, Respondent.
    Argued June 3, 1953;
    decided July 14, 1953.

      Victor E. De Lynn, appellant in person.
    I. Section 335-a of the Code of Criminal Procedure is definite, explicit and mandatory. Convictions obtained without compliance therewith are void, and as such constitute insufficient proof to warrant a suspension of license. (Matter of Ohmann v. Harnett, 168 Misc. 521; People v. Sutcliffe, 255 App. Div. 299; People v. Serences,
      255 App. Div. 587; Matter of Johnston v. Fletcher, 275 App. Div. 802, 300 N. Y. 470.) II. Subdivision 6 of section 71 of the Vehicle and Traffic Law is definite, explicit and mandatory. A suspension of license obtained in disregard of its provisions is clearly unauthorized. III. The Appellate Division erred in assuming that the provisions of section 335-a of the Code of Criminal Procedure apply only to those offenses which must result in suspension of licenses. By express provision, the statute applies equally to those offenses which may result in suspension of license.

      Nathaniel L. Goldstein, Attorney-General (Abe Wagman and Wendell P. Brown of counsel), for respondent.
    I. Notice under section 335-a of the Code of Criminal Procedure was not required in connection with any of the three convictions suffered by petitioner. Section 71 of the Vehicle and Traffic law, in prohibiting art order of suspension “ made because of a judgment of conviction ” if there was a failure to comply with section 335-a, simply means that suspension is improper where it is based on a specific conviction in connection with which notice under section 335-a was required but not given. In this case not only was the suspension not made because of a judgment of conviction, within the sense of section 71, but no notice under section 335-a was required. (Matter of Johnston v. Fletcher, 275 App. Div. 802, 300 N. Y. 470; People v. Stoner, 169 Misc. 469; Matter of Gluckman v. Fletcher, 281 App. Div. 680; Matter of Hudson v. Mealey, 176 Misc. 696; Matter of Bush v. Fletcher, 196 Misc. 134.) II. The commissioner was justified in suspending petitioner’s operator’s license.
   Conway, J.

Petitioner, on his pleas of guilty, was convicted of speeding offenses, in violation of the New York City Traffic Regulations, on three sepárate occasions between June 22, 1949, and April 17,1951, a period of twenty-two months. He received a notice of hearing from respondent dated June 4, 1951, informing him that a hearing would be held to investigate his persistent violations of the traffic laws and to determine whether his license and/or registration should be suspended or revoked. At the hearing, on June 18, 1951, the petitioner submitted an affidavit in which he asserted that he was never informed, upon any of the three convictions that, in addition to any penalty which might be imposed, ‘ ‘ his license to drive a motor vehicle might be suspended or revoked, nor that a plea of guilty is equivalent to a conviction after trial. ’ ’ Subsequent to the date of the hearing he received notice that his license was to be suspended and thereupon instituted this article 78 proceeding at Special Term.

The respondent submitted an answer in which he stated: “ That having received evidence of the aforesaid convictions the respondent determined that the petitioner was a persistent violator of the New York City traffic ordinances. Accordingly the respondent determined to suspend the petitioner’s license to operate an automobile for sixty days, pursuant to Section 71-3 (d) of the Vehicle and Traffic Law.” Respondent also asserted that the petitioner was accorded a hearing with full opportunity to present objections to the respondent’s proposed action. Petitioner, as we have seen, submitted an affidavit upon the hearing of June 18th. The respondent did not attach the record of the hearing to his answer and thus we have no minutes of the hearing before us.

Section 71 of the Vehicle and Traffic Law deals generally with the problem of suspension and revocation of drivers’ licenses and owners’ certificates of registration. We are here concerned only with the suspension of a driver’s license.

Subdivision 2 of section 71 provides for mandatory revocation of a driver’s license under certain conditions, one of the conditions being where the holder is convicted: “ (c) of a third or subsequent violation, committed within a period of eighteen months, of any provision of section fifty-six of this chapter [sic] any ordinance or regulation limiting the speed of motor vehicles * *

Here the petitioner’s three speeding convictions did not occur within an eighteen-month period and for that reason his license could not have been revoked mandatorily.

Subdivision 3 of section 71 deals Avith permissive suspension and revocation of a driver’s license. The petitioner’s license was suspended pursuant to paragraph (d) of subdivision 3 which provides as follows: “ Such licenses * * * may be suspended or revoked: * * * (d) for habitual or persistent violation of any of the provisions of this chapter, or of any lawful ordinance, rule or regulation made by local authorities in relation to traffic ’ ’.

Subdivision 6 of the same section prohibits the suspension or revocation of a license, where such action is based upon a judgment of conviction, unless there has been compliance with section 335-a of the Code of Criminal Procedure. It reads as follows: “No suspension or revocation of a license or certificate of registration shall be made because of a judgment of conviction if the suspending or revoking officer is satisfied that the magistrate who pronounced the judgment failed to comply with section three hundred and thirty-five-a of the code of criminal procedure. In case a suspension or revocation has been made and the commissioner is satisfied that there was such failure, he shall restore the license or certificate of registration or both as the case may be.”

Section 335-a of the Code of Criminal Procedure, referred to .in subdivision 6 of section 71, provides: ‘ ‘ Provisions applicable to arraignments for tbaffic violations. The magistrate, after the arrest in this state of a resident of this state charged with a violation of the vehicle and traffic law, or other law or ordinance relating to the operation of motor vehicles or motor cycles, and before accepting a plea, must inform the defendant at the time of his arraignment that upon conviction, not only will he be liable to a penalty, but that, in addition, his license to drive a motor vehicle or motor cycle, or in the case of an owner, the certificate of registration of his motor vehicle or motor cycle, may or must be suspended or revoked in accordance with the provisions of law governing the charge involved, and must expressly inform the defendant that a plea of guilty is equivalent to a conviction after trial.” (Italics supplied.)

Concededly, there is an “ absence of any showing that he [petitioner] had ever been warned of the consequences with respect to his operator’s license upon arraignment for any of the aforesaid traffic violations.” Moreover, as the Justice presiding at Special Term wrote: “ Except for the convictions, there was no proof before the Commissioner of Motor Vehicles that the petitioner had habitually or persistently violated traffic laws, ordinances, etc.”

Petitioner now contends that the magistrate, upon his third arraignment for speeding, was required to warn him that his license might be suspended and that since the magistrate failed to so warn him the respondent’s action was illegal.

We are thus called upon to determine under what circumstances a magistrate must warn a defendant arraigned for one of the violations enumerated in section 335-a of the Code of Criminal Procedure.

This question has already been answered in Matter of Johnston v. Fletcher (300 N. Y. 470). We there decided that a reading of section 335-a of the Code of Criminal Procedure indicates that prior to accepting a plea, a magistrate is required to give a warning when the law governing the charge involved provides that an operator’s license or owner’s certificate of registration may or must be revoked or suspended. It was apparently not the intention of the Legislature to require a magistrate to give that information in cases where he had no power to suspend a license or - revoke a certificate. The solution to the problem of when a magistrate must give the warning specified in section 335-a of the Code of Criminal Procedure, as we held in Matter of Johnston v. Fletcher (supra), is thus to be found by determining whether the magistrate is empowered in the particular case to suspend or revoke the defendant’s license. If so empowered, the magistrate is under a duty to inform the defendant that, upon conviction, his license “ may or must ” be suspended or revoked. A magistrate is empowered to suspend or revoke drivers’ licenses and owners’ certificates of registration (Vehicle and Traffic Law, § 71, subd. 1) not only when there is a third or subsequent violation committed within a period of eighteen months of any provision of section 56 of the Vehicle and Traffic Law relating to speed limitations, any ordinance or regulation limiting the speed of motor vehicles and motor cycles or any provision constituted [constituting] a misdemeanor by this chapter, not included in (a) or (b) hereof whether such three or more violations were repetitions of the same offense-or were different offenses ” (§ 71, subd. 2, par. [e]), but also when there is habitual or persistent violation of any of the provisions of the Vehicle and Traffic Law, or of any lawful ordinance, rule or regulation made by local authorities in relation to traffic. Assuming arguendo that three such violations, as there were here, within twenty-two months makes a driver an ‘ ‘ habitual or persistent ’ ’ violator it is clear that the magistrate, as well as the commissioner, had the discretionary power to suspend petitioner’s license. Accordingly, the warning provided for in section 335-a of the Code of Criminal Procedure should have been given.

As the only evidence of petitioner’s alleged habitual or persistent violations of the traffic regulations consisted of convictions, obtained in the absence of conformance with section 335-a of the Code of Criminal Procedure, it follows that the petitioner’s license was illegally suspended.

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

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

Ordered accordingly.

       The Legislature has amended this section (L. 1953, ch. 288) effective July 1, 1953. The new amendment eliminates the “may or must” provision and substitutes the following paragraph: “ A plea of guilty to this charge is equivalent to a conviction after trial. If you are convicted, not only will you be liable to a penalty, but in addition your license to drive a motor vehicle or motor cycle, and your certificate of registration, if any, are subject to suspension and revocation as prescribed by law.”


author: Lewis, Ch. J.

text:
    In the Matter of Charles Wirzberger et al., Respondents, against James S. Watson et al., Constituting the Municipal Civil Service Commission of the City of New York, Appellants. In the Matter of Charles W. Fie et al., Respondents, against James S. Watson et al., Constituting the Municipal Civil Service Commission of the City of New York, Appellants.
    Argued June 2, 1953;
    decided July 14, 1953.

      Denis M. Hurley, Corporation Counsel (Andrew Bellanca and Seymour B. Quel of counsel), for appellants.
    I. The commission’s determination was amply supported by the record and fully warranted under the provisions of the Civil Service Law and the rules of the commission. The court below, therefore, was not justified in vacating the commission’s determination and substituting its judgment for that of the commission. (Matter of Fitzgerald v. Conway, 195 Misc. 397, 275 App. Div. 205; People ex rel. Moriarty v. Creelman, 206 N. Y. 570; Matter of Loud v. Ordway, 219 N. Y. 451; Matter of Thomas v. Kern, 280 N. Y. 236; Matter of Murray v. McNamara, 303 N. Y. 140; Matter of Strauss v. Hannig, 256 App. Div. 662, 281 N. Y. 612; Matter of Laverty v. Finegan, 249 App. Div. 411, 275 N. Y. 555; Matter of Gauthier v. Rice, 246 App. Div. 179; Matter of Davis v. Wiener, 260 App. Div. 127, 285 N. Y. 537.) II. The reasonableness of the commission’s action limiting eligibility to the promotion examinations to those then serving in a lower grade in the clerical service was amply supported by the record. (Matter of Ricketts, 111 App. Div. 669; Matter of Spack [Corsi], 305 N. Y. 753; Matter of Humphrey v. State Ins. Fund, 298 N. Y. 327; Matter of Miller v. Kling, 291 N. Y. 65; Matter of Laverty v. Finegan, 249 App. Div. 411, 275 N. Y. 555; Matter of Davis v. Wiener, 260 App. Div. 127, 285 N. Y. 537; Matter of Hecht v. Kern, 178 Misc. 571.) III. Petitioners had no vested rights to a continuance of the past practices. The commission was free to change the eligibility requirement as need required. (Matter of Weeks v. Kraft, 147 App. Div. 403, 205 N. Y. 585; Matter of Kornbluth v. Reavy, 261 App. Div. 60; Matter of Luria v. Marsh, 178 Misc. 595.) IV. The order of the Appellate Division affirming the determination of Special Term is violative of the power vested in the commission by statute and is re viewable by the Court of Appeals as a matter of law. (Bunim v. Bunim, 298 N. Y. 391; Foley v. Equitable Life Assur. Soc., 290 N. Y. 424; Matter of Small v. Moss, 277 N. Y. 501; Matter of Durr v. Paragon Trading Corp., 270 N. Y. 464.)

      Samuel Resnicoff for respondents.
    I. While the commission has discretionary power, the exercise of that discretion is subject to judicial review and reversal. (People ex rel. Sweeney v. Rice, 279 N. Y. 70;.Matter of Gruner v. McNamara, 298 N. Y. 395; Matter of Chironna v. Watson, 304 N. Y. 255; Matter of Sheridan v. Kern, 255 App. Div. 57.) II. The action of the commission in excluding respondents was illegal, arbitrary, capricious, unreasonable, and in violation of law. (Matter of Mendelson v. Kern, 278 N. Y. 568; Matter of Murray v. McNamara, 303 N. Y. 140; People ex rel. Finnegan v. McBride, 226 N. Y. 252; Kelty v. Kaplan, 205 App. Div. 487; Story v. Craig, 231 N. Y. 33; Matter of Ricketts, 111 App. Div. 669; Matter of Laverty v. Finegan, 249 App. Div. 411; Matter of Luria v. Marsh, 178 Misc. 595; Matter of Hecht v. Kern, 178 Misc. 511.) III. Section 16 of the Civil Service Law, as amended by chapter 569 of the Laws of 1953, effective April 8,1953, is inapposite. IV. The Appellate Division having affirmed on the facts and on the law and in its discretion, the only question before the Court of Appeals is one of law. (Delaware, L. & R. R. R. Co. v. Slocum, 299 N. Y. 496; Enterprise Window Cleaning Co. v. Slowuta, 299 N. Y. 286; People ex rel. Choolokian v. Mission of Immaculate Virgin, 300 N. Y. 43; Angelos v. Mesevich, 289 N. Y. 498; People v. Dessaure, 299 N. Y. 126.)
   Lewis, Ch. J.

Two consolidated proceedings pursuant to article 78 of the Civil Practice Act are here involved, of which one will be referred to as the Wirzberger proceeding and the other as the Fie proceeding. In the Wirzberger proceeding the petitioners are employed by the City of New York as junior accountants in the accounting service and junior statisticians in the statistical and actuarial service. They challenge the determination of the municipal civil service commission excluding them from a promotional examination for clerk, grade 4. In the Fie proceeding the petitioners are employed by the City of New York as bookkeepers in the accounting service. They challenge the determination of the municipal civil service commission excluding them from a promotional examination for clerk, grade 3.

At Special Term the court made an intermediate order admitting the petitioners to the examinations that were held on May 24, 1952, but, pending the determination of these proceedings, restrained the commission from publishing the results of the examinations. Subsequently, the court made a final order that (1) annulled the determination of the commission in each case; (2) made final the court’s previous intermediate order permitting the petitioners to take the examinations; and (3) directed the commission to rate the petitioners’ examination papers. The court’s opinion held that the commission’s exclusion of the petitioners from the examination was arbitrary and an abuse of discretion.

Upon appeal by the municipal civil service commission to the Appellate Division, the order of Special Term was affirmed, two Justices dissenting. The order of affirmance, which we now review, was made “ on the facts and on the law and in the discretion of this court ”. The present appeal by the municipal civil service commission is taken as of right.

The controversy arose when the municipal civil service commission, on February 5, 1952, announced promotion examinations for clerk, grade 4, and clerk, grade 3. The notice of examination published by the commission for the position of clerk, grade 4, excluded persons who had not been employed in grades 3 or 4 of the clerical service for at least six months. The notice of examination for the position of clerk, grade 3, limited entrance to the examination to those persons who had been employed in grades 2 or 3 of the clerical service for at least six months or who had been employed for such period as an attendant, messenger, telephone operator, librarian or assistant librarian.

The positions of clerk, grade 4, and of clerk, grade 3, are in part 2 of the competitive municipal civil service classification entitled the Clerical Service ”. The positions of attendant, messenger and telephone operator are in part 6, entitled the “ Attendance Service ”, and the positions of- librarian and assistant librarian are in part 33, entitled the Library Service ”, of the municipal civil service classification.

Thus the effect of the commission’s announcement was to limit admission to the examinations for clerk, grade 4, and clerk, grade 3, to those serving in lower grades in the direct line of promotion in the clerical service with the exception that persons holding certain positions in the attendance service and library service could also be admitted to the examination- for clerk, grade 3. The latter exception was made, according to the commission, because those positions “ are in fact attached to the Clerical Service ” and because “ the promotional opportunities in these titles are practically nil.”

A result of the commission’s announcements was to exclude from both examinations candidates like the petitioners who, as junior accountants, junior statisticians and bookkeepers, were classified in part 24, the “ Accounting Service ”, of the municipal civil service classification. This was a departure from the commission’s former policy under which civil service employees in the accounting service had been admitted to promotional examinations in the clerical service. The commission’s explanation of that change of policy is as follows :

“ With regards to the facts of this particular examination, it is true that in the past the Commission has permitted persons in the category of petitioners herein to compete in this type of examination. However, it has been found in many instances that previously established promotional lines were unsatisfactory, both from the standpoint of administrative efficiency and from the standpoint of the employees themselves. So called broad promotional lines of eligibility have resulted in increased out-of-title assignments. The Commission has found that where out-of-title assignments have been made, it has resulted in numerous complaints by agency heads as to unsatisfactory work performance by persons promoted due to lack of training and experience in the lower grades of the same type of work. * * *
‘ ‘ In view of the foregoing the Commission has altered its promotional eligibility pattern in that it is restricting promotional examinations in the Clerical Service to those who are at present employed in lower grades of the Clerical Service. Likewise and in keeping with this policy, the Commission is restricting promotional examinations in the Accounting Service to those who are at present employed in lower grades of the Accounting Service. * * *
“ By this pattern of mutual exclusion the Commission believes that it has established a satisfactory promotional ladder with respect to these two groups, both from the standpoint of administrative efficiency and in the interests of the respective groups as well.
“ Neither group may infringe upon the promotional opportunities of the other. The promotional opportunities of each group within its own service are ample, and through this policy the City obtains a more satisfactory system of employment. * * * ”

In this proceeding the courts have thus far decreed that the commission may not carry out its new policy of limiting promotions in the clerical service, in general, to those persons now serving within that classification. At Special Term the decision was based upon the finding that “ the type of work performed by the petitioners as bookkeepers, junior accountants and junior statisticians is similar in scope to the duties of clerks in grades 3 and 4. ’ ’ The decision at the Appellate Division was based upon its own view of the facts and the exercise of its own discretion.

Our disagreement with the Appellate Division and Special Term is based upon subdivision 2 of section 14 of the Civil Service Law, and subdivision 13 of section X of rule V of the Rules and Regulations of the Municipal Civil Service Commission, which confer upon the commission alone the duty of establishing preliminary requirements for promotional examinations. Section 16 of the Civil Service Law — as it read when these proceedings were started — provided that promotions in the competitive class shall be made, as far as practicable, from among persons holding positions in a lower grade in the same department in which the vacancy existed.

The decisional law on the problem is that the commission’s fixing of the minimum requirements for admission to an examination is not to be interfered with by the courts if any fair argument can be made to sustain its action, “ * * * even though they may differ from the commission as to its advisability.” (People ex rel. Moriarty v. Creelman, 206 N. Y. 570, 575-576; People ex rel. Schau v. McWilliams, 185 N. Y. 92, 99; Matter of Laverty v. Finegan, 249 App. Div. 411, affd. 275 N. Y. 555; Matter of Davis v. Wiener, 260 App. Div. 127, affd. 285 N. Y. 537; and see Matter of Murray v. McNamara, 303 N. Y. 140, 144.)

Here the petitioners challenge as arbitrary the commission’s new policy of preventing transfers between the accounting and clerical services with the following arguments: (1) Many of these petitioners have proved that, in fact, they are qualifiéd for the clerical service by passing previous examinations for clerk; (2) many department heads have written to the commission to urge the appointment of accountants and bookkeepers to the clerical service; (3) the arbitrariness of the commission’s policy is proved by its admission of attendants and librarians to the clerical examination since they allegedly perform duties that are not clerical in nature. However, in the light of the statute and applicable case law, all of the petitioners’ contentions are unavailing since the commission’s decision that the elimination of transfers between the accounting and clerical services would promote administrative efficiency is not unreasonable and, hence, must be accepted as conclusive by the courts. Wé think exception made by the commission to the general rule in the case of persons in the attendance service and library service who would otherwise have no chance of promotion is within the permissible discretion of the rule-making body. Thus the arguments by the petitioners against the commission’s decision prove only that the subject matter of the controversy involves disputed questions of fact and differences of opinion upon which the determination of the administrative agency is final.

It follows that Special Term wrongly overruled the determination of the commission. Likewise, we think the Appellate Division erred in deciding the case upon its view of the facts and in the exercise of its own discretion. (Matter of Miller v. Kling, 291 N. Y. 65, 69; Matter of Humphrey v. State Ins. Fund. 298 N. Y. 327, 331, 332.)

The orders should be reversed, the determination of the municipal civil service commission reinstated, and the petitions dismissed, with costs in all courts.

Conwat, Desmond, Dye, Fold and Fboessel, JJ., concur; Van Voorhis, J., taking no part.1

Ordered accordingly.

       By chapter 569 of the Laws of 1953, effective April 8, 1953, the Legislature amended section 16 to give explicit statutory sanction to the commission’s policy of direct line promotions.