text:
    Edward L. Traub, Appellant, v. Thomas Dinzler, Respondent and Third-Party Plaintiff-Appellant. Victoria Television Corp. et al., Third-Party Defendants-Respondents.
    Argued October 11, 1955;
    decided December 28, 1955.

      Arthur A. Kaye and Gerald Moss for appellant.
    I. There was ample proof that the Dinzler car was driven into the rear of the car ahead. This was established as a matter of fact and was not left to inference. II. Where an operator drives his automobile into the rear of another car going in the same direction, a question of fact is presented as to his negligence. (Schuler v. Newhof, 276 App. Div. 887; Tosto v. Marra Bros., 275 App. Div. 686, 299 N. Y. 700; Diem v. Adams, 266 App. Div. 307; Lafforthun v. Strauss, 192 Misc. 88.) III. The verdict for plaintiff should he reinstated and judgment directed to be entered accordingly. (Cornbrooks v. Terminal Barber Shops, 282 N. Y. 217; Marcario v. City of New York, 278 App. Div. 712.)

      William C. Mattison and Thomas P. Curtin for respondent-appellant.
    I. On this record the trial court properly dismissed the complaint of plaintiff Traub. (Cole v. Swagler, 308 N. Y. 325; O’Connor v. Complete Mach. & Equipment Co., 281 App. Div. 1046, 307 N. Y. 623; Wank v. Ambrosino, 307 N. Y. 321; Ruppert v. Brooklyn Heights R. R. Co., 154 N. Y. 90.) II. The trial court improperly dismissed Dinzler’s third-party complaint. (Elfeld v. Burkham Auto Renting Co., 299 N. Y. 336; Elliott v. Flushing Sand & Stone Co., 273 App. Div. 782; Dittman v. Davis, 274 App. Div. 836, 299 N. Y. 601; Gorham v. Arons, 282 App. Div. 147, 306 N. Y. 782; Chirichella v. Shamrock Cab Corp., 207 Misc. 371.) III. This court, on the procedural aspects of this record, must grant a new trial on reversal and may not reinstate the jury’s verdict for plaintiff. (Shaw v. Roovers Bros., 289 N. Y. 348.)

      William E. Lyons for Victoria Television Corp., third-party defendant-respondent.
    Since plaintiff in the primary action failed to establish a cause of action against Dinzler, the issues raised by the third-party complaint between third-party plaintiff Dinzler and third-party defendant Victoria Television Corp. became academic and dismissal of the third-party complaint was proper. (Martin v. Herzog, 228 N. Y. 164; Digelormo v. Weil, 260 N. Y. 192; Brianzi v. Crane Co., 196 App. Div. 58; O’Connor v. Complete Mach. & Equipment Co., 281 App. Div. 1046, 307 N. Y. 623; Church v. Staley, 281 App. Div. 928, 306 N. Y. 979; Philpott v. Conrad, 282 App. Div. 1095; Cole v. Swagler, 308 N. Y. 325.)

      James E. Boboras and Francis J. Parks for Hjalmar V. Sorenson, third-party defendant-respondent.
    I. The trial court properly dismissed the complaint of plaintiff Traub. (Wank v. Ambrosino, 307 N. Y. 321.) II. The judgment dismissing the third-party complaint should be affirmed or, in the event that this court reinstates the verdict of the jury in favor of plaintiff, the case should be remitted to trial term for such proceedings with respect to the third-party complaint as this court deems proper. (Elliott v. Flushing Sand & Stone Co., 273 App. Div. 782; Dittman v. Davis, 299 N. Y. 601; Dolnick v. Donner Lbr. Corp., 275 App. Div. 954, 300 N. Y. 660; Middleton v. City of New York, 276 App. Div. 780, 300 N. Y. 732.)
   Burke, J.

The plaintiff appeals from a judgment affirming the dismissal of the complaint on the merits, and the defendant, Dinzler, third-party plaintiff-appellant, appeals from the affirm - anee of the dismissal of the third-party complaint against Victoria Television Corp. and Sorenson.

The plaintiff Traub instituted this action against the defendant Dinzler for personal injuries sustained by Traub in a collision between a motor vehicle owned by Dinzler and operated by third-party defendant Sorenson and another unidentified motor vehicle. Dinzler impleaded Victoria Television Corp. and Sorenson, alleging that he loaned his motor vehicle to Victoria, whose employee, Sorenson, was driving it in the course of his employment by Victoria, at the time of the accident. Victoria impleaded Sorenson.

The action was tried in the Supreme Court, Nassau County, before the court and a jury. On the retirement of the jury for its deliberation, the court dismissed Dinzler’s third-party complaint against Victoria and Sorenson, as well as Victoria’s third-party complaint against Sorenson.

Thereafter the jury returned a verdict in the main action in favor of Traub against Dinzler in the amount of $5,000. The court set aside the verdict, holding that Traub failed to prove a collision and failed to prove any actionable negligence on the part of the defendant Dinzler. In a supplemental memorandum opinion the court granted the defendant Dinzler’s motion to dismiss the complaint at the end of the entire case.

On a rainy afternoon the plaintiff, Traub, was a front-seat passenger in a motor vehicle owned by defendant Dinzler, and driven in a westerly direction by third-party defendant Sorenson on Grand Central Parkway, Queens, New York. Traub and Sorenson were fellow-employees of Victoria. They were transporting a television set in the vehicle. Victoria had borrowed the vehicle from Dinzler for the purpose of delivering the television set. Dinzler was not present in the car at the time.

The Dinzler vehicle, prior to the accident, was proceeding in the right lane at a uniform rate of speed, estimated by plaintiff to be between thirty and forty miles per hour. This rate of speed, so the court charged, without exception, was a legal rate of speed.

As the Dinzler vehicle proceeded along the highway and approached Hollis Court Boulevard, Queens, the vicinity of the accident, the rainfall increased in intensity. Plaintiff thereupon prepared to close the open car window on his side of the vehicle. To accomplish this he turned his body in the direction of the window and with his left hand on the window pane and his right hand on the window crank, he closed the window. As plaintiff then turned his body to the normal passenger position, he noticed a car in front of the Dinzler vehicle on the highway and in the same lane. This car, plaintiff testified, was either stopped or going slowly and was some thirty-five feet in front of the Dinzler vehicle when plaintiff first saw it. The driver of this car gave no manual or mechanical warning signal of any kind. Sorenson attempted to stop the Dinzler vehicle but it did not seem to slacken its speed. Plaintiff testified on direct examination that he did not remember the ‘ ‘ crash ” as he lost consciousness due to a head injury.

On cross-examination of the plaintiff, all three attorneys for the defendants referred to the accident or collision. The defendant Dinzler testifying in his own behalf confirmed the occurrence of the collision and conceded that he had filed a report of the collision with the Motor Vehicle Bureau. The defendants offered no other proof. The uncontradicted testimony presented a question of fact for the jury: Was Sorenson as a party to an automobile accident on a rainy day negligent in operating a car which failed to slacken its speed when the brakes were applied while driving the car at thirty-five to forty miles an hour, and following within thirty-five to forty feet of a car engaged in slowing down or stopping? The defendants were free to produce other evidence as to the cause of the accident. They failed to do so.

Here the facts proved might warrant the inference that the accident was attributable to the failure of the operator of the defendant’s car to properly control the car. Therefore it was for the jury to decide whether or not the operator of the defendant’s car was negligent. In Chisholm v. State of New York (141 N. Y. 246, 250) this court stated:

“ Great stress was laid upon the fact that the claimant testified that he did not know how he fell; he stated under cross-examination : ‘ I think I stepped down one of the steps; after that I did not know anything until I was picked up down on the ground.’
“ It was insisted that claimant’s lack of knowledge on this point led to a failure of proof as to how he came to be lying at the bottom of this excavation ten feet in depth.
‘1 We do not so regard it, but, on the contrary, consider that the claimant’s testimony, taken in connection with all the evidence in the case, leads irresistibly to the conclusion that he, without negligence on his part, on a dark night fell into an excavation that the state, through its servants, had left directly in his path, wholly unguarded, in a public highway over which he was lawfully traveling.”

We conclude that the court in this case erred in setting aside the verdict and dismissing the complaint of the plaintiff.

The court also improperly dismissed the defendant’s third-party complaint. The plaintiff sued only Dinzler. The plaintiff’s complaint was founded exclusively on the negligence of Sorenson in operating Dinzler’s vehicle. The pleadings contain no allegation of affirmative or active negligence on Dinzler’s part. The plaintiff sought recovery against Dinzler solely on Dinzler’s ownership of the vehicle in which the collision occurred. Therefore, Dinzler’s liability, if any, is vicarious as the owner of the vehicle and purely statutory under section 59 of the Vehicle and Traffic Law. Dinzler impleaded Victoria, alleging a bailment of his vehicle to Victoria, and also Sorenson, alleging that Sorenson operated the vehicle in the course of his employment at the time of the accident. In his third-party complaint Dinzler stated that he was not in the vehicle at the time of the accident and he pleaded that plaintiff’s recovery against him would be predicated on the primary, active and affirmative negligence of the third-party defendants, Victoria and Sorenson. Victoria in its answer to Dinzler’s third-party complaint did not deny the allegation that it borrowed Dinzler’s vehicle. Victoria impleaded Sorénson, alleging its employment of Sorenson and his operation of the vehicle at the time of the accident.

The court’s dismissal of Dinzler’s third-party complaint was founded on two separate grounds: first, that an indemnification agreement is indispensable to impleader, second, that Victoria and Sorenson, vis-a-vis Dinzler, were joint tort-feasors against whom decisional law denies impleader.

Section 193-a of the Civil Practice Act provides: “ Third-party practice; courts to which applicable. 1. After the service of his answer, a defendant may bring in a person not a party to the action, who is or may be liable to him for all or part of the plaintiff’s claim against him, by serving as a third-party plaintiff upon such person a summons and copy of a verified complaint. The claim against such person, hereinafter called the third-party defendant, must be related to the main action by a question of law or fact common to both controversies, but need not rest upon the same cause of action or the same ground as the claim asserted against the third-party plaintiff.”

This is a proper case for impleader. In Gorham v. Arons (282 App. Div. 147, affd. 306 N. Y. 782), this court held that where liability is statutory and predicated on the ownership of a motor vehicle within the purview of section 59 of the Vehicle and Traffic Law, if the negligence of the owner was passive, the owner is entitled to recover over against the actively negligent employee driver and his employer.

On the state of this record we cannot reinstate the jury’s verdict for the plaintiff. (Shaw v. Roovers Bros., 289 N. Y. 348.)

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

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

Judgment reversed, etc.


source: Caselaw Access Project

author: Cohn, J. Burke, J.

license: Public Domain

text:
    The People of the State of New York, Respondent, v. James Vetri, Appellant.
    Argued December 1, 1955;
    decided December 28, 1955.

      Irving T. Wolf son and Abraham Shalo for appellant.
    I. The purpose of the penal statute is to assure weekly payment of cash wages and not incidental contractual benefits. (People v. Grass, 257 App. Div. 1; New York Central & H. R. R. R. Co. v. Williams, 64 Misc. 15.) II. To hold vacation pay under the contract to be wages would violate the labor statute. III. Courts may not by forced construction create a crime. (People v. Rowan, 179 Misc. 225; People v. Werner, 174 N. Y. 132; People v. Taylor, 192 N. Y. 398; People v. Phyfe, 136 N. Y. 554; People v. Stoll, 242 N. Y. 453; People v. Cohen, 94 Misc. 355; Matter of Stryker, 158 N. Y. 526; Austin v. City of New York, 258 N. Y. 113; People v. Interborough R. T. Co., 169 App. Div. 32.) IV. Criminal statutes must be so explicit that all men subject to their penalties may know what acts are prohibited. (People v. Grogan, 260 N. Y. 138; United States v. Brewer, 139 U. S. 278.) V. To hold that failure to provide certain “ fringe ” benefits is a crime would have the effect of ousting the civil courts of their traditional jurisdiction and substituting the criminal courts in their place.

      Edward S. Silver, District Attorney (David Diamond of counsel), for respondent.
    The “ vacation pay ” referred to in the collective bargaining agreement herein constitutes “ wages earned ” within the purview of subdivision 2 of section 196 of the Labor Law. (Matter of Stryker, 158 N. Y. 526; Seidenberg v. Duboff & Davies, 143 Misc. 167; Matter of Wil-low Cafeterias, 111 F. 2d 429; Matter of Public Ledger, 161 F. 2d 762; Matter of New York State Labor Relations Bd. v. Metropolitan Life Ins. Co., 183 Misc. 1064, 269 App. Div. 934, 295 N. Y. 839.)

      Sidney Elliott Cohn, Daniel W. Meyer and Jean Taylor for Truck Drivers Local Union No. 807, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, A. P. of L., and others, amici curiae, in support of respondent’s position.
    I. Vacation pay is an additional wage and represents compensation for services rendered by the employees to the employer. Hence vacation pay constitutes wages within the meaning of section 1272 of the Penal Law and section 196 of the Labor Law. (Matter of New England Thread Co., 158 F. 788; Matter of Wil-low Cafeterias, 111 F. 2d 429; Matter of Public Ledger, 161 F. 2d 762; Matter of Ciarla v. Solvay Process Co., 184 App. Div. 629, 226 N. Y. 566; Matter of Schenectady Ry. Co., 93 F. Supp. 67.) II. The fact that vacation pay is not payable weekly does not remove it from the category of “ wages ” within the meaning of section 1272 of the Penal Law and section 196 of the Labor Law.
   Cohn, J.

Pursuant to leave granted by a Justice of the Appellate Division, Second Department, the defendant appeals from an order and judgment of that court affirming a judgment of a Court of Special Sessions held by a City Magistrate, Borough of Brooklyn, convicting him of a violation of section 1272 of the Penal Law in that he failed to pay the wages of his employees in accordance with the provisions of subdivision 2 of section 196 of the Labor Law.

On September 24, 1952, defendant entered into a two-year collective bargaining contract with Truck Drivers Local Union No. 807, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America. Among other things the contract provided for vacations, the length of which was dependent upon the number of days worked during the 12-month period ending on March 31st of each year. For the first 120 workdays, one day of vacation was allowed for each 30 days. Thereafter vacation days accrued on the basis of 15 or 20 additional workdays until a maximum of a 14-day vacation period was reached. The agreement required the employer to post the vacation schedule not later than May 1st.

While the agreement was in effect, defendant discontinued business. He made all payments required under the agreement save for the accrued vacations of six of his employees ranging from four to fourteen days. Upon complaint of these employees who were members of the union, defendant was convicted on an information charging him with a violation of subdivision 2 of section 196 of the Labor Law in that on March 31, 1954, he failed to pay the wages due the complainants who were employed by him “ for various periods during the past year ”.

So far as here pertinent, subdivision 2 of section 196 of the Labor Law provides: “ Every person carrying on a business by lease or otherwise * * * shall pay weekly to each employee the wages earned to a day not more than six days prior to the date of such payment.”

The relevant portion of section 1272 of the Penal Law provides : ‘1 Each person * * * who does not pay the wages of all his * * * employees in accordance with the provisions of the labor law is * * * guilty of a misdemeanor, and upon conviction therefor, shall be fined not less than one hundred nor more than ten thousand dollars or imprisoned for not more than one year, or punished by both such fine and imprisonment for each such offense.”

The sole question presented by the appeal is whether vacation pay constitutes wages within the meaning of the above-quoted sections of the Labor Law and the Penal Law. The trial court held that since vacation pay represented part of the employee’s compensation for services rendered, it fell within the purview of the statutes under consideration.

The requirement that an employer pay his employees their wages weekly was first imposed in 1890 (L. 1890, ch. 388, § 1). After several amendments it was carried over as section 10 of the Labor Law (L. 1897, ch. 415), from which the present section 196 was derived. The purpose of the law was to assure prompt payment of daily wages to those employed in a subordinate capacity and who depended upon their earnings for support on a per diem rather than on a salary basis. (Erie R. R. Co. v. Williams, 233 U. S. 685, 704.) It was not intended to include the so-called fringe benefits found in present-day collective bargaining contracts, which were relatively foreign to per diem hirings at the time of the original enactment of the statute.

In the present case the daily and hourly rates of pay are set forth in section 1 of the collective bargaining contract which deals exclusively with “ wages ”. Failure to pay the amounts prescribed under that section within six days after they are earned, and not a failure to pay vacation money, is what would constitute a violation of the statute.

Section 196 of the Labor Law is a police power regulation intended for the protection of those who are dependent upon their wages for sustenance (New York Central & H. R. R. R. Co. v. Williams, 64 Misc. 15, 27, 28, affd. 136 App. Div. 904, affd. 199 N. Y. 108, affd. sub nom. Erie R. R. Co. v. Williams, 233 U. S. 685, supra). A violation of its provisions is malum prohibitum and not malum in se, and, as such, the statute should be ‘ ‘ strictly construed ’ ’. (People v. Taylor, 192 N. Y. 398, 400; People v. Werner, 174 N. Y. 132, 134.) Acts otherwise innocent and lawful do not become criminal unless there is a clear and positive expression of legislative intent to make them criminal ”. (People v. Adamkiewicz, 298 N. Y. 176, 179.) See, also, People v. Benc (288 N. Y. 318, 323) and People v. Grogan (260 N. Y. 138, 145). In People v. Shakun (251 N. Y. 107, 113-114) the doctrine is set forth as follows: “It is well settled that a criminal statute should narrowly be construed; that acts otherwise innocent and lawful, do not become crimes, unless there is a clear and positive expression of the legislative intent to make them criminal. (People v. Phyfe, 136 N. Y. 554; Burks v. Bosso, 180 N. Y. 341.) In People v. Phyfe the court said: ‘ The citizen is entitled to an unequivocal warning before conduct on his part, which is not malum in se, can be made the occasion of a deprivation of his liberty or property.’ ”

Mere failure to pay wages within the time prescribed by the statute automatically constitutes a violation of the law and exposes the employer to criminal prosecution (People v. Werner, supra; People v. Kibler, 106 N. Y. 321, 323); hence the language of the statute is to be given the meaning it conveys to the ordinary employer as to what must be done and what must be avoided, to the end that he may know how to comply with its requirements. (People v. O’Gorman, 274 N. Y. 284, 287.) As pointed out in United States v. Brewer (139 U. S. 278, 288): “ Laws which create crime ought to be so explicit that all men subject to their penalties may know what acts it is their duty to avoid. * * * Before a man can be punished, his case must be plainly and unmistakably within the statute.”

If the term ‘ ‘ wages ’ ’ as used in the Labor Law is to be construed according to its fair import, “ vacation pay ” cannot be embraced in that term by implication. The courts may not by forced construction create a crime. (People v. Stoll, 242 N. Y. 453, 463.)

In support of the People’s position, reliance is placed upon section 21 of the Penal Law, which provides: ‘ ‘ The rule that a penal statute is to be strictly construed does not apply to this chapter [Penal Law] ”. However, it is to be noted that the section goes on to state that its provisions 1 ‘ must be construed according to the fair import of their terms, to promote justice and effect the objects of the law.” A construction of the language of subdivision 2 of section 196 of the Labor Law which makes penal that which is not plainly written in the statute, would hardly promote justice or effect the object of the law which is to compel prompt payment of daily wages to the small wage earner. (People v. Grass, 257 App. Div. 1; New York Central & H. R. R. R. Co. v. Williams, supra, p. 26.)

That the Legislature intended “ wages ” as used in the Labor Law to mean the daily rate of pay earned during the preceding six days is forcefully demonstrated by recent amendments to section 71 of the Stock Corporation Law and section 22 of the Debtor and Creditor Law. By one act (L. 1952, ch. 794) the Legislature amended both those sections by defining “ wages ” as used therein to include all benefits payable by an employer for personal services rendered by an employee, specifically including vacation, holiday and severance pay; payments into insurance, welfare or pension funds; and any other amounts due from or payable by the employer. However, the definition of “ wages ” effected by the amendment is expressly limited to the purposes of those two sections. This limitation coupled with the failure to include, in the amending statute, a similar expanded definition for the word wages ” as used in the Labor Law is significant. It shows that “ wages ” as used in the Labor Law was not intended to include vacation pay or other fringe benefits but was to be restricted to the basic rate of pay.

To be sure, the term “ wages ” broadly interpreted includes all of the benefits, monetary or otherwise, which an employee derives from a master and servant relationship. However, the sense in which it is used in a given statute depends not only upon the wording of the statute but upon the purpose of the law as well. The liberal interpretation placed upon it in actions involving civil remedies of employees does not apply to the word as used in a criminal statute. The decisions in civil actions are based upon different considerations and they may not enlarge an employer’s criminal responsibility beyond that indicated by the criminal statute itself.

It is true that for the purpose of giving priority to wage earners over other creditors under the Bankruptcy Act (§ 64, subd. [a], par. [2], U. S. Code, tit. 11, § 104, subd. [a], par. [2]) the Federal courts have held that “ A vacation with pay is in effect additional wages ” (Matter of Wil-low Cafeterias, 111 F. 2d 429, 432); so too with respect to severance pay (Matter of Public Ledger, 161 F. 2d 762). See, also, Matter of Brooklyn Citizen (1 Misc 2d 162, 168). In computing the amount to be awarded an injured employee under the New York Workmen’s Compensation Law, bonuses were held to be part of the employee’s wages. (Matter of Ciarla v. Solvay Process Co., 184 App. Div. 629, affd. 226 N. Y. 566) and, similarly, with respect to tips received by an employee from his employer’s customers. (Matter of Sloat v. Rochester Taxicab Co., 177 App. Div. 57, affd. 221 N. Y. 491; Matter of Bryant v. Pullman Co., 188 App. Div. 311, affd. 228 N. Y. 579.) Though these cases involving only civil remedies construe wages to include vacation pay, severance pay, voluntary bonuses and tips, the same construction may not be extended to penal provisions where there is no statutory obligation placed on the employer in the Labor Law or in the Penal Law to make such payments.

Moreover, under the welfare provisions of the collective bargaining contract here, the employer is required to provide and maintain insurance and hospitalization for the benefit of his employees and their families. These benefits accrue immediately upon employment and before any work is performed. While they too fall within the broad interpretation of “ wages ”, they nevertheless do not constitute wages earned six days prior to the date of payment within the meaning of the Labor Law. It would appear, therefore, that the word 1 ‘ wages ” as used in the Labor Law was not intended to include every type of benefit derived by an employee from a master-servant relationship and which might fall within the general category of wages.

The law affords wage earners ample civil remedies for the purpose of assuring them full payment of all additional benefits accruing to them under their contract of employment. If the Legislature desires to provide that failure to pay vacation moneys or other benefits due an employee be deemed criminal, this purpose can readily be effected by appropriate amendment to the Labor Law or to the Penal Law. Under the language of these statutes as now written, defendant was guilty of no criminal act.

Accordingly, the judgment appealed from should be reversed and the information dismissed.

Burke, J.

(dissenting). The defendant was convicted of a violation of the provisions of subdivision 2 of section 196 of the Labor Law of the State of New York in that, on March 31, 1954, he failed to pay the wages due six complainants who were employed by him for various periods during the past year ”.

A collective bargaining agreement to govern hours, wages and working conditions was entered into between the defendant and Truck Drivers Local Union No. 807, International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, affiliated with the American Federation of Labor, Central Trades and Labor Council, and Building Trades Council of New York which provided among other things for vacation pay at a rate of one day’s vacation pay for the first thirty days’ work during a calendar year ending March 31st, up to fourteen days’ vacation with pay for 235 days or more of work during the year. The complainants are members of the union and their claims arise out of a failure of the defendant employer to pay moneys due for vacations at the time he closed his business.

Courts have construed the term “ wages ” to include vacation with pay. (Matter of Wil-low Cafeterias, 111 F. 2d 429, 432; Matter of Public Ledger, 161 F. 2d 762; Matter of Brooklyn Citizen, 1 Misc 2d 162.)

The Legislature of this State in 1952 (L. 1952, ch. 794) amended both section 71 of the Stock Corporation Law and section 22 of the Debtor and Creditor Law to include a definition of wages, which specifically included vacation pay. The courts and the Legislature have recognized that vacation pay is a part of wages.

The question before us is whether “vacation pay” is “ wages ” within the meaning of section 196 of the Labor Law and section 1272 of the Penal Law. Section 1272 of the Penal Law and section 196 of the Labor Law are correlative. They were enacted to protect employees by insuring the prompt and expeditious payment of their wages.

Subdivision 2 of section 196 of the Labor Law provides in its pertinent parts: “ Every person carrying on a business by lease or otherwise * * * shall pay weekly to each employee the wages earned to a day not more than six days prior to the date of such payment ”.

Section 1272 of the Penal Law, in its pertinent parts, provides: “ Each person, copartnership, corporation or joint-stock association carrying on a business by lease or otherwise, who does not pay the wages of all his or its employees in accordance with the provisions of the labor law is * * * guilty of a misdemeanor

The defendant contends that the word “ weekly ” was inserted in the Labor Law statute because the Legislature intended it to apply only to wages earned to a day not more than six days prior to the day of payment and not to any other form of wages, particularly wages payable in advance. The word “ weekly ” applies to all wages earned. Hence we must determine what wages include and when wages are deemed earned. We must look to the terms “ wages ” and “ earned ”. The statute does not forbid advance payment of wages. It simply provides that wages are due and payable weekly as earned. In this case a definite period was fixed by agreement when vacation pay would be deemed earned and would be due. It is only at that time that the word “ weekly ” becomes important. The agreement provided for the payment to be made in advance of the vacation for days’ pay earned prior to the date of payment. Even though the schedule provided for one day paid vacation for a fixed number of days of work, where the employee agreed that his vacation pay is to be paid at the commencement of the vacation period, the employee cannot demand payment of the vacation pay prior to the time stipulated in the contract (except when the employer goes out of business) and the employer has no obligation to pay it prior to that time, as the wages are accruing during the course of the year, but are not ££ earned ’ ’ within the meaning of section 196 of the Labor Law until the employee under the terms of the agreement becomes entitled to receive it. The employer cannot be prosecuted under the statute until six days after the pay was earned and became due and payable. The agreement is relied upon by the employer as a defense only to determine when the wages are earned and due. It is not relied upon to show good faith or negate any criminal intent. It is conceded no intent is necessary.

The agreement for accumulation of vacation pay is not a violation of subdivision 3 of section 196 of the Labor Law. The employee in this ease is not required as a condition of employment to accept wages at periods other than weekly. Here the employer, at the request of the employee, was required to pay for vacations in advance of the vacation period but for days ’ pay earned prior thereto. Since the employer went out of business before the summer vacation and refused to pay on the ground of lack of funds, the due date of the payment of the vacation pay was accelerated.

Although vacation pay is paid as compensation for services already rendered, its purpose is to provide for the support of employees during their vacation. Granted that the statute should be strictly construed, we cannot escape the fact that the contemporary, natural and obvious meaning of the term “ wages ” includes vacation pay. Certainly an employer of average intelligence would not assume it to have any other meaning. The purpose of the statute is to enable employees to prosecute employers who fail to pay them their wages. Therefore, we think the employer’s failure to pay the wages to cover the vacations constitutes a violation of section 1272 of the Penal Law to the same extent as the failure to pay the weekly wages.

It is conceded that the sanctions imposed by the statutes, section 1272 of the Penal Law and section 196 of the Labor Law, were designed to help earners of small wages who needed cash for their day-to-day living expenses. Since there can be no question that the wages due for the vacation period were earned, there is no basis for adopting a construction of the statute which would limit the sanctions in such a way as to relegate the wage earner in the event of a failure of the employer to pay part of the earnings (vacation pay), to a civil suit, while permitting the use of sanctions of the penal statute for a failure to pay the remainder of the earnings (weekly wages). When a basic question of public policy is involved we cannot impute such a mutually exclusive intent to the Legislature.

The circumstance in this case is a cogent example of the precise problem the Legislature intended to prevent. The defendant employer pleaded inability to pay. Inability to pay the wages earned for vacation cannot be distinguished from an inability to pay the wages earned day-by-day. The deprivation of earnings in either case is real. To forestall such losses the State by statute holds employers to a standard of social justice in their dealing with workmen. The attainment of the aims of the statute would be frustrated by other than a reasonable interpretation.

The construction urged by the defendant is not only technical but is in conflict with authority.

In Hudson Riv. Tel. Co. v. Watervliet Turnpike & Ry. Co. (135 N. Y. 393, 403-404) we said: “ The words of the statute are to be interpreted according to their natural and obvious meaning, and, as the terms employed are not ambiguous, extrinsic facts are not available to restrict the authority which it plainly confers. The language, literally construed, includes undiscovered, as well as existing modes of operation * * *. It would be an unjust reflection upon the wisdom and intelligence of the law-making body to assume that they intended to confine the scope of the legislation to the present, and to exclude all considerations for the developments of the future.”

In People v. Hines (284 N. Y. 92, 104) this court held that a defendant may be prosecuted under a gambling statute which was enacted before a gambling game came into being. It is not necessary, we said, to “ re-enact over again the same comprehensive statute ’ ’. By giving words employed in the statute their ordinary and usual current meaning, we do not make acts, otherwise innocent and lawful, crimes.

And only recently in Matter of Di Brizzi (Proskauer) (303 N. Y. 206 [1951]), this court upheld the use of a statute (Executive Law, § 62, subd. 8, now § 63, subd. 8) which was originally enacted a few weeks after our entry into World War I as a “ Peace and Safety Act” (L. 1917, ch. 595), to permit the creation of a “ New York State Crime Commission ”.

Finally in People v. Morton (308 N. Y. 96) we specifically ruled that penal statutes, without necessity of amendment, may, in view of changes in other statutory law, make criminal, conduct which prior to these changes was not proscribed. (Stock Corporation Law, § 71; Debtor and Creditor Law, § 22.)

We should not apply one rule of construction when property rights or civil order or public safety are involved and a different rule of construction when the rights of workmen are involved. The rule heretofore followed in the cases cited above is clearly applicable here as section 21 of the Penal Law provides: “ § 21. General rules of construction of this chapter. The rule that a penal statute is to be strictly construed does not apply to this chapter or any of the provisions thereof, but all such provisions must be construed according to the fair import of their terms, to promote justice and effect the objects of the law.”

The judgment of the Appellate Division should be affirmed.

Fuld, Froessel and Van Voorhis, JJ., concur with Cohn, J.; Burke, J., dissents in an opinion in which Conway, Ch. J., concurs; Desmond and Dye, JJ., taking no part.

Judgments reversed, etc.

       Designated pursuant to section 5 of article VI of the State Constitution in the temporary absence of Desmond and Dye, JJ.


author: Fuld, J.

text:
    In the Matter of the Claim of Angelo Malaspina, Appellant. Edward Corsi, as Industrial Commissioner, Respondent.
    Argued November 21, 1955;
    decided January 12, 1956.

      William Eldred Jackson, Mary B. Tardier and George H. Bailey for appellant.
    I. The Appellate Division, in holding that appellant had left his employment voluntarily, erroneously treated a question of fact as a question of law and, in so doing, erroneously overruled a contrary factual determination by the appeal board which was based upon substantial evidence and made new findings of its own not supported by evidence. (Matter of Baida, 282 App. Div. 975.) II. The doctrine of ‘ ‘ constructive voluntary quit ’ ’ is not and should not become the law of this state. (Copper Range Co. v. Michigan Unemployment Compensation Comm., 320 Mich. 460; MacFarland v. Unemployment Compensation Bd. of Review, 158 Pa. Superior Ct. 418.) III. Even if the doctrine of “ constructive voluntary quit ” be accepted, the Appellate Division failed to consider and in effect overruled the findings of fact by the appeal board, supported by the evidence, which showed that the facts of the case did not come within the doctrine. (Matter of Fiol [Calmar S. S. Corp.— Corsi], 305 N. Y. 264; Campbell Soup Co. v. Board of Review, 13 N. J. 431; Matter of Rumsey Mfg. Corp. [Corsi], 296 N. Y. 113; Matter of Hirschberg, 273 App. Div. 936; Matter of Mutual Benevolent Soc. of 1865, 293 N. Y. 901; Matter of Carroll [New York Military Academy], 288 N. Y. 447.) IV. The Appellate Division’s decision is also based on findings not made by the appeal board and not substantiated by the evidence. V. The Appellate Division erred in construing the 60-day provision of the agreement and, since appellant was discharged before expiration of the 60-day period, properly construed, he did not fail to comply with a condition of employment. (Cole v. Rawlings Ice Co., 139 Neb. 439.)

      Jacob K. Javits, Attorney-General (Francis R. Curran and James 0. Moore, Jr., of counsel), for respondent.
    I. Claimant-appellant voluntarily left Ms employment without good cause under the statute. (Campbell Soup Co. v. Board of Review, 13 N. J. 431.) II. The Appellate Division decided the case on the basis of the facts found by the appeal board. It did not make any new findings, and there is no reason for a remission of the case to the board for further findings. III. The employment with Standard and with National constituted one employment under the labor-management agreement, as found by the referee and appeal board. (Matter of Technicon Cardiograph Corp. [Corsi], 285 App. Div. 193.)

      Harold H. Levin, Howard Lichtenstein and Norman Gross for Great Atlantic & Pacific Tea Company, amicus curios, in support of respondent’s position.
    I. Section 593 of the Labor Law should be construed as it was prior to Matter of Baida (282 App. Div. 975) for the reasons stated in a long series of appeal board decisions and in numerous out-of-state decisions. Such consistent construction was in effect for a sufficient period to indicate legislative approval. (Matter of Foscarinis, 284 App. Div. 476.) II. If this were a case of first impression, a proper construction of section 593 would require affirmance of the decision below. Claimants, who bring about the termination of their employment by refusing to abide by collective bargaining agreements, should be considered as having voluntarily left their employment without good cause. (Matter of Palmieri [Corsi], 276 App. Div. 417; Matter of Hansen [Corsi], 283 App. Div. 908.) III. The employer should not be penalized for compliance with collective bargaining agreements. Union shop agreements do not violate this state’s public policy. (Plumbers Unions v. Graham, 345 U. S. 192.)
   Fuld, J.

Angelo Malaspina, an assembly hand, was employed from April 30 to June 13, 1953, and from October 7 to November 4 of the same year, by the Union Standard Equipment Company, a partnership, and the National Equipment Corporation, a corporation. The companies were under common control and claimant worked throughout both periods under the direction of the same foreman, doing the same work, and at the same location. Both concerns were designated as the Employer ” in the collective bargaining agreement made by them with the International Association of Machinists. It was expressly provided in that agreement between employer and union that employees were under the necessity of joining the union within 60 days after they were hired. In paragraph 4, the parties agreed that ‘ ‘ each employee covered by the terms of this agreement, as a condition of employment, shall become a member of the Union * * * within sixty days after the date of his employment, and shall remain a member of the Union * * * in good standing during the term of this agreement. If any employee covered by the terms of this agreement fails to become a member of the Union as above provided or, during the term of this agreement, fails to pay his periodic dues or the initiation fees uniformly required by the Union as a condition of acquiring or retaining membership, the Union will give written notice thereof to the Employer ; and if within ten days after the receipt of such notice by the Employer, such employee has not joined the Union or paid such dues or initiation fees, he shall be summarily discharged by the Employer.”

When Malaspina was first hired, on April 30, 1953, he was told that it was a union job,” that he had a 60-day period ■— trial period. After 60 days he must join the union. If he don’t join the union * * * [within a further period of] ten days, he must be dismissed.” The question of his joining the union did not arise at that time, since he quit his job after being on it only 45 days. When rehired, on October 7 of the same year, he was told that his earlier employment, for 45 days, would count as part of the 60-day period within which he was required to join the union. Although he assured the union shop steward that he would, he paid neither the initiation fee nor the dues and, at the end of the 60-day trial period and of an extra 10-day notice period, he was discharged.

It had apparently been agreed between Malaspina and the shop steward that he might pay the $25 initiation fee in three installments, the first, of $10, on October 28, the first payday after the termination of the 60-day period. The shop steward was not at the factory on that day and Malaspina was absent from October 29 until November 3. Upon Malaspina’s return on that day, the steward reminded him that the time had come for him to pay $10, and Malaspina replied that he realized that, but did not have the money. The employer, notified of Malaspina’s failure to join, discharged him, at the union’s request, on November 4, 1953.

After a claim was filed for benefits to be effective November 4, the Industrial Commissioner made an initial determination that Malaspina had voluntarily left his employment without good cause, within the sense of the Unemployment Insurance Law, and was, accordingly, disqualified for benefits for a 42-day period following his discharge. The referee, before whom claimant requested a hearing, overruled that determination, declaring that “ Claimant was separated from his employment because he failed to join the union within the required time. There was no voluntary leaving of employment under these conditions.” The Appeal Board affirmed, but the Appellate Division reversed, holding that the claimant’s failure to join the union within the time prescribed constituted a voluntary quit of his employment without good cause (285 App. Div. 564).

As is evident, the sole question presented is whether claimant, within the meaning of section 593 of the Unemployment Insurance Law (Labor Law, art. 18), left his employment “ voluntarily ” and “without good cause.” Insofar as relevant, section 593 (subd. 1, par. [c]) provides:

“ 1. Voluntary separation. In the case of any claimant who leaves his employment voluntarily * * *
“ (c) if such separation was without good cause, no benefits shall be payable to such claimant, nor shall he be credited with serving any part of the waiting period until forty-two consecutive calendar days have elapsed after his registration for benefits subsequent to such voluntary leaving if there was no withdrawal from the labor market or until such forty-two days have elapsed after the certification of his bona-fide return to the labor market and his availability for employment if there had been a withdrawal from the labor market.”

The applicable collective bargaining agreement required that, within 60 days after being hired, an employee must join the union, and that, if he fails to do so, the employer must discharge him. Obviously, by refusing or failing to become a member, the employee brings about his own discharge, and such action or inaction may not logically or reasonably be regarded as anything but voluntary on his part. In other words, joining the union was a condition precedent to continued employment; if, for any reason, he did not join and was discharged, he must be deemed to have quit voluntarily. If the rule were otherwise, the collective bargaining provision insisting upon union membership as prerequisite to employment would be considerably diluted, if not destroyed.

Claimant contends that a distinction should be made between an employee who “ wilfully refuses ” to join the union and one who ‘ ‘ fails ’ ’ to join within the prescribed period simply because of financial inability. In the latter case, he urges, the resulting discharge should not be treated as “ voluntary.” It may well be that a discharge is not to be considered voluntary where the employee fails to satisfy a condition of employment because of circumstances beyond his control — for example, where he is discharged pursuant to a provision in the union contract requiring dismissal at age 65. (See Campbell Soup Co. v. Board of Review, Div. of Employment Security, 13 N. J. 431.)

In the case before us, however, we are not dealing with a condition beyond the reasonable reach of the employee. All that the claimant herein had to do was pay the initiation fee or, by reason of the special arrangement, a portion of it, by November 4, and he knew that, if he did not become a member of the union by that date, he would be discharged from his job. Nothing turns upon the circumstance that his shop steward was absent from work on the day that payment of the stipulated installment became due or that claimant himself was away for a few days thereafter. The fact was that three other shop stewards were in the building on that day and, in any event, claimant had two days after his return, before the 70 days expired, in which he could have paid his own steward had he so elected. His failure to do so, as the Appellate Division wrote, was “ quite as ‘ voluntary ’ an act as most choices between one course and another ”, and amounted “to an election by the employee not to meet a condition of the work ” (285 App. Div. 564, 565).

There is a final point made by claimant which warrants mention. He argues that the decisions below were erroneous in treating his two periods of employment, in the spring and fall of 1953, as one employment for the purpose of computing the 60 days within which he was required to join the union. That period should have been computed, he contends, from October 7, when he was rehired by the National Equipment Corporation, without taking into account the 45 days that he had worked for the Union Standard Company in May and June. As a result, the argument goes, the 60 days had not run by the time of his discharge, he had not failed to comply with a condition of employment and his discharge, therefore, was not voluntary.

Claimant does not, indeed cannot, challenge the finding that the corporation, National Equipment, and the partnership, Union Standard, were under common control and, for present purposes, constituted one employer. Instead, he suggests that, since he voluntarily left Union Standard in June, his subsequent rehiring by National Equipment was a new and separate employment. The record before us shows only that he left the job in June, because of an injury to his back, and that he was rehired in October. So far as appears, he had no other employment in the intervening time, and, on this record, there is no basis for disturbing the finding made by the referee and the Appeal Board and affirmed by the Appellate Division.

The reason for allowing the worker a waiting period before he is required to join the union is to give him time to decide whether he wants to join, for he may not know at the beginning whether he will like the job or be suited for it. (Cf. 1 Legislative History of the Labor Management Relations Act, 1947, pp. 300, 867.) When a worker quits before the trial period has run and then returns after a short time to the same employment, his knowledge of the job and ability to reach an informed decision about joining the union is in no way diminished by his temporary absence and there is no reason to allow him another and further 60 days in addition to the period he previously served. Any other conclusion would seriously impair the efficacy of contracts between employers and labor unions, particularly in industries where employment is seasonal or job mobility high, for workers could change jobs at frequent intervals without being required to join the union in any of them. The 45 days that claimant worked in May and June were, therefore, correctly considered as part of his 60-day trial period and, since he knowingly failed to join within the required time, his separation from the job must be considered a voluntary quit. He was properly disqualified, pursuant to the statute, from receiving benefits for 42 days thereafter.

The order appealed from should be affirmed, without costs.

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

Order affirmed.


author: Van Voorhis, J.

text:
    The People of the State of New York, Appellant, v. Helen Le Grande, Respondent. The People of the State of New York, Appellant, v. Sarah Maloney, Respondent. The People of the State of New York, Appellant, v. Anne Sorise, Respondent. The People of the State of New York, Appellant, v. Vastiner King, Respondent. The People of the State of New York, Appellant, v. Dolores Bender, True Name Dolores Brown, Respondent. The People of the State of New York, Appellant, v. Lois Brown, Respondent.
    Argued October 19, 1955;
    decided January 12, 1956.

      Edward S. Silver, District Attorney (Aaron Nussbaum, of counsel), for appellant.
    I. The Appellate Division erred in reversing the judgment and dismissing the indictment. (People v. Bellows, 281 N. Y. 67; People v. Scheinman, 295 N. Y. 142; People v. Potskowski, 298 N. Y. 299; People v. Rudolph, 303 N. Y. 73; People v. Lee, 308 N. Y. 302.) II. Guilt was established beyond a reasonable doubt. III. A fraudulent representation may be effected in myriad ways: by acts as well as by words, by half truths calculated to mislead, by reckless statements made without knowledge, by silence when there is a duty to speak, by false impressions as to charitable or benevolent purpose. (People v. Gellard, 296 N. Y. 516; People v. Yarmish, 189 Misc. 1041; People v. Suffern, 242 App. Div. 353; People v. Avery, 254 App. Div. 780, 279 N. Y. 601.) IV. Respondents were properly convicted of the crime of fraudulently obtaining property for charitable or benevolent purposes. (People v. Powers, 147 N. Y. 104; Butterworth v. Keeler, 219 N. Y. 446; Matter of Roland, 225 App. Div. 118; Matter of Frasch, 245 N. Y. 174.) V. The conviction of respondents does not in any way offend against constitutional guarantees of freedom of religion. (Davis v. Beason, 133 U. S. 333; Reynolds v. United States, 98 U. S. 145; Kedroff v. St. Nicholas Cathedral, 344 U. S. 94.) VI. Respondents were properly convicted of the crime of conspiracy. (People v. Winter, 288 N. Y. 418; People v. Van Tassel, 156 N. Y. 561; People v. Friedlander, 280 N. Y. 437; People v. Miles, 192 N. Y. 541.) VII. The acquittal of defendant Davis did not bar a conviction of the other defendants. (People v. Kuland, 266 N. Y. 1; People v. Scheppa, 295 N. Y. 359.) VIII. The jurisdiction was properly laid in Kings County as to each of the respondents. (People v. Charleton, 157 Misc. 570.) IX. The trial court properly admitted the statement of defendant Davis into evidence under proper instructions.

      Arnold W. Wallach, Harry Chiert and Bernard Chiert for respondents.
    I. The alleged acts on the part of respondents were not encompassed within the intendment of section 934 of the Penal Law and said section 934 of the Penal Law should not be construed to cover the alleged acts on the part of respondents. (People v. Adamkiewicz, 298 N. Y. 176; Hornstein v. Paramount Pictures, 292 N. Y. 468; People v. Levy, 283 App. Div. 383.) II. Section 934 of the Penal Law, as applied to the evidence and state of facts in this case, is unconstitutional in that it violates the First Amendment to the United States Constitution, as the same is incorporated into the Fourteenth Amendment of the United States Constitution and, as such, deprives respondents of due process, and that said section 934, as applied, is vague, ambiguous, indefinite, uncertain and has given respondents no notice of what acts they would commit, would constitute a violation of said section. (Cantwell v. Connecticut, 310 U. S. 296; Everson v. Board of Educ., 330 U. S. 1; Kedroff v. St. Nicholas Cathedral, 344 U. S. 94.) III. There was no proof of any conspiracy between respondents. (People v. Winters, 288 N. Y. 418; People v. Harris, 294 N. Y. 424; People v. Friedlander, 280 N. Y. 437.) IV. Since defendant Davis was acquitted, respondents should have been acquitted. (People v. Kuland, 266 N. Y. 1; People v. Scheppa, 295 N. Y. 359.) V. The court erred in admitting the alleged confessions and statements— that such statements were binding only on the particular deponent.
   Van Voorhis, J.

This is an appeal by the People from orders of the Appellate Division reversing judgments of the Kings County Court on the law and the facts, which convicted defendants of the crimes of fraudulently obtaining and conspiring to obtain property for charitable or benevolent purposes in violation of section 934 of the Penal Law. The indictments were dismissed by the Appellate Division upon the ground that there is no evidence that appellants violated the provisions of this criminal statute. The facts are stated in its opinion as follows: Appellants solicited funds on the streets of New York City for a period of more than a year, as set forth in the indictment. The practice was to sit in front of department stores and other public places and receive coins from the public in a metal cup or plate held in the lap of each appellant. Each appellant was dressed in the habit or garb common to nuns or sisters, although the particular combination of elements of- the attire was not significant of any particular order or organization. Each appellant was at all such times in possession of a written certificate of authority to make collections on behalf of a religious corporation duly organized under the Religious Corporations Law. There was evidence that, under an agreement with the corporation, each appellant delivered $2.50 a day to the pastor of the corporation’s church, and retained the remainders of the collected funds as her personal compensation. There was also evidence of another version of the agreement, which was testified to at the trial, that each appellant delivered all collected funds to the pastor and received from him about $10 a week as compensation, the pastor retaining $2.50 a day for his personal needs and applying remainders to other church purposes.”

There was evidence authorizing the jury to find the first of these versions, and by their verdicts of conviction, the jury found that the agreement between defendants and this religious corporation, known as the New Day Holy Church of God, Inc., incorporated in 1945, was that each defendant delivered $2.50 a day to the pastor (or bishop ”, as he is termed), and retained the rest of the collected funds as her personal property.

The question is whether these acts by these defendants, the facts concerning which are thus established, violated section 934 of the Penal Law. This section reads as follows: “ § 934. Fraudulently obtaining property for charitable purposes. A person, who wilfully, by color or aid of any false token or writing, or other false pretense, obtains the signature of any person to any written instrument, or any money or property, for any alleged or pretended charitable or benevolent purpose, is punishable by imprisonment for not less than one nor more than three years, or by a fine to an amount not exceeding the value of the money or property obtained, or by both.”

Laying aside whether there was anything fraudulent in these women dressing themselves to simulate nuns, apart from the rest of their conduct, it may well be that there would have been no crime under this section if all of their collections had been delivered to the pastor for the use of this church, after deducting a reasonable amount commensurate with their services in collecting this money.

This church is assumed to be a bona fide religious corporation, and collections made for its purposes, including payment of part of the salary of its pastor, would not be in violation of section 934. We even assume that the $2.50 apiece which the jury found was paid to the pastor went for religious purposes. It does not follow from this circumstance, however, that the conduct of these defendants did not violate section 934 of the Penal Law. These women were not soliciting funds for any charitable or benevolent purposes, insofar as their own profit from the transactions was concerned. The laborer is worthy of his hire, and if they had merely retained for themselves reasonable compensation for their services in obtaining these funds, giving the rest to the church, quite possibly no crime would be involved. But the main object of this solicitation was defendants’ own emolument; they were not working at a fixed stipend for this church or even on a commission basis, but they were, if one may use the phrase, the owners of the equity interest in this enterprise. They were in business for themselves, collecting not primarily for the church or for any charitable or benevolent purpose, but for their" own financial gain. As the contributions increased, these defendants kept the entire excess over $2.50 for their own. They would have been willing to join up with any religious organization which would lend color to their efforts to make money by pretending to the public that they were dedicated to its work, and lived in a state of poverty, chastity and obedience. All of this adds up to a fraud upon the public.

The question remains whether section 934 of the Penal Law has been violated, in view of its limitation to the collection of money for alleged or pretended “charitable or benevolent ” purposes. It is said that these collections, at worst, were for a pretended religious purpose, and that therefore the acts of defendants do not fall within the categories of ostensible “ charitable ” or “ benevolent ” undertakings. We think that these funds were ostensibly being solicited for “benevolent” purposes. In Matter of Rockefeller (177 App. Div. 786, 791), the Appellate Division said: “In its popular acceptation a charitable corporation is one that freely and voluntarily ministers to the physical needs of those pecuniarily unable to secure for themselves, while a benevolent corporation is one that ministers to all, and the purpose may be anything that promotes the mental, physical or spiritual welfare of man.”

It would be superfluous to cite the numerous decisions upon the subject of charitable trusts. Without considering the situation respecting other religions, Christianity is founded upon the concept of the fatherhood of a benevolent God and the brotherhood of man under the golden rule. This church purports to be a Christian church, and it can hardly be said that the objects of such an organization are so limited or selfish in character as to deny that its prime concern is for the spiritual health and welfare of mankind. It would be a contradiction in terms to hold that the object of the Christian religion, in its broadest connotation, is not “ benevolent ”.

The orders of the Appellate Division should be reversed, and a new trial ordered.

Conway, Ch. J., Desmond, Fuld, Froessel and Burke, JJ., concur; Dye, J., taking no part.

Orders reversed, etc.


text:
    The People of the State of New York, Appellant, v. Henry Horowitz and Transbrook Theatres, Inc., Respondents.
    Argued November 17, 1955;
    decided January 12, 1956.

      Edward S. Silver, District Attorney (David Diamond of counsel), for appellant.
    I. The courts below erred in holding that this contract is a license and not a lease. (Brookhaven Rialto Theatre Corp. v. Feiger, 268 App. Div. 1042; Mehlman v. Atlantic Amusement Co., 65 Misc. 25; Meers v. Munsch-Protz

      mann Co., 217 App. Div. 541.) II. Defendants’ acts constituted larceny regardless of whether this contract was a lease or license. (Mallory Associates v. Barving Realty Co., 300 N. Y. 297.) III. The mingling of the security funds with defendants’ own money, as well as its diversion from the agreed specific purpose, constituted larceny as charged. (People ex rel. Belleci v. Klinger, 164 Misc. 530; People v. Klinger, 165 Misc. 634; 2710 8th Ave. v. Forman Pharmacy, 180 Misc. 376.)

      Harold Dublirer for respondents.
    I. The “ advance commissions ” created a debtor-creditor relation. The agreement involved here does not come within section 233 of the Beal Property Law. No crime was committed. (People v. Northwest Fifth Ave. & 27th St. Corp., 145 Misc. 778, 239 App. Div. 773; Mallory Associates v. Barving Realty Co., 300 N. Y. 297.) II. Section 233 of the Beal Property Law is applicable only to leases not to licenses. (Planetary Recreations v. Kerns, 184 Misc. 340; Halpern v. Silver, 187 Misc. 1023; Wash-O-Matic Laundry Co. v. 621 Lefferts Ave. Corp., 191 Misc. 884; Muller v. Concourse Investors, 201 Misc. 340; Greenbro Coin Meter Corp. v. Basch, 205 Misc. 853; Reynolds v. Van Beuren, 155 N. Y. 120; Stockham v. Borough Bill Posting Co., 144 App. Div. 642; Reeve v. Duryee, 144 App. Div. 647; United Merchants’ Realty & Improvement Co. v. New York Hippodrome, 133 App. Div. 582, 201 N. Y. 601.) III. A concessionaire does not have the “ use ” of “ real property ”. (Layton v. Namm & Sons, 275 App. Div. 246, 302 N. Y. 720; Kaypar Corp. v. Fosterport Realty Corp., 1 Misc 2d 469, 272 App. Div. 878, 298 N. Y. 1036; Isaacson v. Ken Drug Corp., 195 Misc. 246; Schusterman v. C & F Caterers, 192 Misc. 564.) IV. The agreement involved here is a license not a lease.
   Van Voorhis, J.

Defendants were indicted for grand larceny, first degree, for misappropriating funds deposited by a concessionaire as advance rental and security for the full and faithful performance ” of a five-year agreement whereby the concessionaire contracted to install and maintain stands and vending machinery in two moving picture theatres for the sale of cigarettes, nonalcoholic beverages, ice cream and other confections. These theatres were operated by defendant Transbrook Theatres, Inc., of which defendant Horowitz was president. Both theatres closed their doors at the end of August, 1953, when the agreement was only three months old. These defendants failed to repay to the concessionaire a balance of $5,206.01 due on account of this deposit.

Prior to the adoption of section 233 of the Real Property Law (L. 1935, ch. 581), if a landlord spent money deposited by a tenant as security for the performance of covenants under a lease, the relationship was held to be simply that of debtor and creditor, and the ill-starred tenant could only insist upon a personal obligation of the landlord which usually proved to be of little value if the landlord became insolvent (Mallory Associates v. Barving Realty Co., 300 N. Y. 297, 299-300; Mendelson-Silverman v. Malco Trading Corp., 262 N. Y. 621; Malco Trading Corp. v. Mendelson-Silverman, 240 App. Div. 322, affd. 264 N. Y. 651; Rambach v. Heights Theatres, 239 App. Div. 203; Jahmes Co. v. Propper, 238 App. Div. 326; Levinson v. Shapiro, 238 App. Div. 158). This section of the Real Property Law, unless otherwise provided in the lease, causes such a deposit to become a trust fund, remaining the property of the tenant although in the custody of the landlord, until applied against defaulted covenants in the lease, which has the double consequence of enabling the tenant to repossess himself of the deposit in spite of the insolvency of the landlord, if the moneys are on hand, and, likewise, of rendering the landlord subject to criminal prosecution if meanwhile he has appropriated the fund to his own use.

There may be no essential reason on account of which the Legislature might not similarly have protected a deposit of security by a licensee. Section 233 of the Real Property Law, however, creates this fiduciary status only in the case of contracts “ for the use or rental of real property ”. That expression is well understood, and imports the ordinary landlord and tenant relationship involving transfer of possession of designated space in real estate. In the present instance, exclusive possession of no defined portions of these theatres is demised to the concessionaire, nor does the contract so much as specify where these stands and automatic dispensers are to be located in the theatres, and the concessionaire is allowed to hawk and peddle its wares anywhere in these motion picture houses. As in the case of washing machines in an apartment house, the concessionaire has no ownership of the space allotted to its equipment in the sense that usually obtains in the relationship of landlord and tenant.” (Kaypar Corp. v. Fosterport Realty Corp., 1 Misc 2d 469, 471, affd. without opinion 272 App. Div. 878, motion for leave to appeal denied 297 N. Y. 1036.) It was said in Reynolds v. Van Beuren (155 N. Y. 120, 123): “ While this paper is called a lease it is manifestly nothing more than a mere license by the tenant in possession to the defendants to go upon the roof of the building and place advertisements upon the sign.” The same principle applies to this vending concession in these theatres.

This kind of concession, regardless of whether the contract describes the parties as landlord and tenant, does not create that relationship in law in the absence of a demise of space in a building. It has been held not to be a license of a “ rent-able area ” within the scope of the emergency rent laws (Layton v. Namm & Sons, 275 App. Div. 246, affd. without opinion 302 N. Y. 720).

It has been held frequently at Special Term that concessions such as this do not partake of the nature of the conventional type of lease (Planetary Recreations v. Kerns, 184 Misc. 340; Halpern v. Silver, 187 Misc. 1023; Wash-O-Matic Laundry Co. v. 621 Lefferts Ave. Corp., 191 Misc. 884; Muller v. Concourse Investors, 201 Misc. 340; Greenbro Coin Meter Corp. v. Basch, 205 Misc. 853).

The order appealed from should be affirmed.

Conway, Ch. J., Desmond, Fuld, Fboessel and Bubke, JJ., concur; Dye; J., taking no part.

Order affirmed.


author: Froessel, J.

text:
    The People of the State of New York, Respondent, v. Larry J. Moss, Appellant.
    Argued November 16, 1955;
    decided January 12, 1956.

      W. Bartlett Sumner and Thomas L. Newton for appellant.
    I. It was reversible error for the court to deny with exception defendant’s motion to dismiss the information made at the close of all the evidence. (People v. Gould, 306 N. Y. 352.) II. There is insufficient credible evidence to support the violation in that the sole witness for the prosecution, on her own testimony, is unworthy of belief. III. The charges involved here are quasi-criminal. (Commissioner of Public Welfare of City of N. Y. v. Kotel, 256 App. Div. 352; Commissioner of Public Welfare of City of N. Y. v. Ryan, 238 App. Div. 607; People v. Johnaken, 196 Misc. 1059.)

      John F. Dwyer, District Attorney (Robert A. Burrell of counsel), for respondent.
    I. The information before the trial court was sufficient and the court properly denied a motion to dismiss the information on the grounds that it was defective. (People v. Gould, 306 N. Y. 352.) II. The evidence given upon the trial was sufficient to support a finding of guilty of a violation of section 887 (subd. 4, par. [d]) of the Code of Criminal Procedure.
   Froessel, J.

Defendant was convicted of vagrancy ” under section 887 (subd. 4, par. [d]) of the Code of Criminal Procedure, and sentenced to six months in the county penitentiary. The information charged that he induced, enticed or procured the complainant to commit sexual intercourse and other lewd and indecent acts with him in his home in Buffalo. The Supreme Court, which heard the appeal, assuming that complainant was “ apparently a willing participant in the immoral acts ” and “ an accomplice ”, nevertheless affirmed the conviction.

The sole witness was the complainant, who was over twenty years of age. She was defendant’s housekeeper for about a month, and admitted that she was a willing participant in the acts at least at the beginning of their occurrence. Later, she said, she became “ afraid of him ”, but did not leave because defendant had not told her she “ could quit the job any time ”, and while he was in the hospital she had to stay because “ he told me to answer the ’phones ’ ’.

Accepting the factual findings below, as we must, we are of the opinion that they do not support a conviction under the statute. Section 887 of the Code of Criminal Procedure, in its various subdivisions other than subdivision 4, deals generally with unemployed persons without visible means of support; habitual drunkards who, among other things, neglect their families; beggars; tramps; persons disguised; truants; certain loiterers who have criminal records; and defines them as vagrants.

Subdivision 4 itself consists of seven subparagraphs. With respect to six of them, it is only necessary to make the following brief observations as to whom it defines as vagrants: a person (a) “ who offers to commit prostitution (b) “ who offers or offers to secure another ” for prostitution or other lewd or indecent acts; (c) who “ loiters ” for prostitution or pandering-purposes; (e) who receives or keeps any person in a place of assignation; (f) who aids or abets in the doing of any of the acts or things enumerated ” in subdivision 4; and (g) a common prostitute ” without lawful employment.

Paragraph (d) of subdivision 4 defines as a vagrant a person ‘ ‘ who in any manner induces, entices or procures a person who is in any thoroughfare or public or private place, to commit any such acts ’ ’. Thus this paragraph, upon which defendant’s conviction rests, is interjacent to (c) dealing with loitering pimps and prostitutes and (e) aimed at the keepers of houses of prostitution. As we read paragraph (d), it seeks to strike at still another despicable participant in this ancient vice — the organizer or instigator who remains behind and above the pimps and prostitutes he enlists; it is he who is the “ person * * * who * * * induces, entices or procures ” (a) a person to serve as a prostitute, (b) another to function as a pimp, and (c) a prostitute or pimp to loiter about as a solicitor for lewdness or prostitution.

However reprehensible may be the acts here complained of, they are not such as are sought to be reached by section 887 (subd. 4, par. [d]). This statute, as we said in People v. Gould (306 N. Y. 352, 354), “ condemns various aspects and incidents of pandering and prostitution ”. Section 889-a of the Code of Criminal Procedure would also indicate that the Legislature regarded subdivision 4 as a general prostitution statute.

It is fundamental that the bare testimony of a complainant — here a young woman intelligent enough to have been graduated from high school at the age of seventeen, who participated in sexual relations with defendant voluntarily at least for a time — could not have supported, without corroboration, a conviction of any crime derived from such relations as, e.g., adultery, a misdemeanor (Penal Law, §§ 100, 103), rape, a felony (Penal Law, §§ 2010, 2013), or even sodomy, also a felony (Penal Law, §§ 690, 691; see Code Crim. Pro., § 399). It is therefore unreasonable to assume that where the available proof is insufficient for a conviction of any of these crimes, the Legislature intended that a defendant may nevertheless be punitively dealt with under section 887 (subd. 4, par. [d]) to the extent of imprisonment as long as three years (Code Crim. Pro., § 891-a) for the same act though under a different name.

While section 887 defines vagrants and makes vagrancy a public offense rather than a crime within the definition of section 2 of the Penal Law, it “ has all the characteristics of criminal procedure and a conviction eventuates in a penal judgment and execution * * * £ Proceedings against vagrants * * * are as essentially punitive as any sentence imposed for crime ’ ” (People ex rel. Stolofsky v. Superintendent, 259 N. Y. 115, 117-118). If the Legislature chooses to make the misconduct complained of here — where the sole evidence of privately committed acts is the testimony of an accomplice— a public offense or a crime, under whatever name, it should do so expressly.

The judgment appealed from should be reversed and the information dismissed.

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

Judgments reversed, etc.


text:
    The People of the State of New York, Appellant, v. Meyer Levenstein, Respondent.
    Submitted November 17, 1955;
    decided January 12, 1956.

      Charles E. Bowers, District Attorney (R. W. Daniels of counsel), for appellant.
    I. The order of the City Court sustaining the demurrer and dismissing the indictment was appealable by the People to the County Court. (People v. Hatzis, 297 N. Y. 163; People v. Hammerstein, 150 App. Div. 212, 155 App. Div. 204, 211 N. Y. 552; People v. Firth, 157 App. Div. 492; People v. Pearl, 272 App. Div. 563; People v. Walsh, 172 App. Div. 266; People v. Flaherty, 206 App. Div. 733; People v. Oliver, 214 App. Div. 804; People v. Young, 264 App. Div. 747; People v. Siciliano, 185 Misc. 149.)

      Sanders D. Heller for respondent.
    The order of the City Court sustaining the demurrer and dismissing the information is not appealable by the People to the County Court. (People v. Zerillo, 200 N. Y. 443; People v. Reed, 276 N. Y. 5; People v. Gersewitz, 294 N. Y. 163.)
   Froessel, J.

The City Court of the City of Ogdensburg, St. Lawrence County, sustained a demurrer and dismissed an information charging defendant with a violation of section 1272 of the Penal Law (failing to pay wages). On appeal to the County Court the appeal was in effect dismissed on the ground that there is no statutory right of appeal, under section 518 of the Code of Criminal Procedure, from such an order. Leave to appeal was granted by a Justice of the Appellate Division, Third Department, who submitted the following question: “ 1. Was the order of the City Court of the City of Ogdensburg sustaining the defendant’s demurrer and dismissing the information appealable by the People to the St. Lawrence County Court? ”

The City Court here functioned as a court of special sessions, as it was authorized to do by chapter 381 of the Laws of 1927 (§ 5, as amd. by L. 1953, ch. 583). Section 750 of the Code of Criminal Procedure (as amd. by L. 1954, ch. 806) provides that “ An appeal may be taken as provided by sections five hundred seventeen through five hundred twenty ” (emphasis supplied). Prior to 1954, the italicized words read “ section five hundred and twenty ” only. Thus the 1954 amendment specifically made the provisions of section 518 dealing with appeals by the People and sections 517, 519 and 520 applicable to appeals from courts of special sessions. Section 518 authorizes an appeal from a judgment for the defendant, on a demurrer to the indictment ” (emphasis supplied). The principal question presented on this appeal, therefore, is the narrow one of statutory construction: whether the word ‘1 indictment ” as used in section 518 also means information where appeals from courts of special sessions are involved.

We think it does. By expressly incorporating section 518 into section 750 in 1954, the Legislature must have so intended; otherwise this amendment would have been meaningless, particularly as to subdivisions 1 and 3, since cases in courts of special sessions proceed by way of information rather than by indictment (Code Grim. Pro., see § 4, subd. 4; §§ 222, 59, 742). Despite the fact that the Judicial Council had also recommended that subdivisions 1 and 3 of section 518 be amended to include the word “ information ” because of “ some doubt ” as to the law (Nineteenth Annual Report of N. Y. Judicial Council, 1953, pp. 226, 240), the Legislature apparently did not think it necessary since, by its incorporation of section 518 into section 750, it was granting the People the right to appeal from orders sustaining demurrers in courts of special sessions. This construction ‘ ‘ not only serves to harmonize the several provisions of the section but also promotes the presumed purpose of the Legislature to maintain uniformity of procedure in criminal cases.” (People v. Hatzis, 297 N. Y. 163, 164.)

In a somewhat analogous situation involving an information in the Court of Special Sessions in the City of New York, the Appellate Division held that an appeal under section 518 by the People would lie by virtue of subdivision 4 of section 31 of the then Inferior Criminal Courts Act of that city, and we affirmed (People v. Hammerstein, 150 App. Div. 212, 214; 155 App. Div. 204, 206, affd. 211 N. Y. 552; see, also, People v. Pearl, 272 App. Div. 563; People v. Firth, 157 App. Div. 492). In People v. Nelson (298 N. Y. 272), even before the 1954 amendment of section 750 of the Code of Criminal Procedure, this court took jurisdiction of an appeal by the People from an order which affirmed an order of the Rochester City Court, Criminal Branch, dismissing an information.

It follows that the County Court and this court have power to hear this appeal under sections 518 and 519 respectively of the Code of Criminal Procedure by the express provisions of section 750.

The order appealed from should be reversed, and the matter remitted to the County Court for determination on the merits.

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

Order reversed and matter remitted to the County Court for further proceedings in accordance with the opinion herein.