author: Thacheb, J. Desmond, J.

text:
    Staten Island Edison Corporation, Respondent, v. Milo R. Maltbie et al., Individually and Constituting the Public Service Commission of the State of New York, Appellants.
    Argued February 19, 1947;
    decided May 22, 1947.

      Philip Halpern, George H. Kenny and Samuel R. Madison for appellants.
    I. Certiorari is the exclusive method of reviewing rate orders of the Public Service Commission under the law of this State. There is no principle of State law under which a suit in equity may be maintained to challenge a rate order as confiscatory. Certiorari is the traditional and exclusive method of reviewing quasi-judicial determinations in this State. (Mooers v. Smedley, 6 Johns. Ch. 28; Hyatt v. Bates, 40 N. Y. 164; New York State Electric & Gas Corp. v. Maltbie, 266 N. Y. 521; Dairy Sealed, Inc., v. Ten Eyck, 248 App. Div. 352.) II. The rate orders of the Public Service Commission are quasi-judicial determinations and are reviewable as such in certiorari. (People ex rel. Central Park North & East River R. R. Co. v. Willcox, 194 N. Y. 383; Matter of Village of Saratoga Springs v. Saratoga Gas Co., 191 N. Y. 123; People ex rel. Steward v. Railroad Comrs., 160 N. Y. 202; Matter of New York Edison Co. v. Maltbie, 244 App. Div. 685, 271 N. Y. 103; Matter of New York Water Service Corp. v. Water P. & C. Comm., 283 N. Y. 23.) III. The right to maintain a suit in equity cannot be based upon the so-called legislative nature of the rate-making function. (People ex rel. Consol. Water Co. v. Maltbie, 275 N. Y. 357; St. Joseph Stock Yards Co. v. United States, 298 U. S. 38; Prentis v. Atlantic Coast Line Co., 211 U. S. 210; People ex rel. Central Park North & East River R. R. Co. v. Willcox, 194 N. Y. 383; Interstate Commerce Comm. v. Louisville & Nashville R. R. Co., 227 U. S. 88.) IV. The claim of confiscation does not entitle a utility company to a broader review of the issues of fact than that afforded in certiorari. There is no principle of State law under which a public utility company is entitled to an independent determination by the courts of the issues of fact involved in a rate case. (People ex rel. Consol. Water Co. v. Maltbie, 275 N. Y. 357; St. Joseph Stock Yards Co. v. United States, 298 U. S. 38.) V. The scope of review in certiorari is adequate to deal with the issue of confiscation as well as with all other issues in a rate case. (Matter of New Rochelle Water Co. v. Maltbie, 248 App. Div. 66; Matter of Rockland Light & Power Co. v. Maltbie, 241 App. Div. 122;

      Consolidated Edison Co. v. National Labor Relations Bd., 305 U. S. 197; Matter of Stork Restaurant, Inc., v. Boland, 282 N. Y. 256.) VI. It would be contrary to the settled policy of this State to allow the courts to redetermine independently the issues of fact decided by the commission in a rate case. (People ex rel. N. Y. & Queens Gas Co. v. McCall, 219 N. Y. 84, 245 U. S. 345; Niagara Falls Power Co. v. Water P. & C. Comm., 267 N. Y. 265; People ex rel. Consol. Water Co. v. Maltbie, 275 N. Y. 357.) VII. The New York statutory system, under which rate proceedings are conducted by the commission in accordance with quasi-judicial procedure and are reviewed by the courts in certiorari, satisfies all the requirements of the due process clause as construed by the United States Supreme Court. (People ex rel. Consol. Water Co. v. Maltbie, 275 N. Y. 357 , Matter of Helfrick v. Dahlstrom Metallic Door Co., 256 N. Y. 199, affd. sub nom. Dahlstrom Metallic Door Co. v. Industrial Board of New York, 284 U. S. 594; United States v. Carolene Products Co., 304 U. S. 144; San Diego Land & Town Co. v. Jasper, 189 U. S. 439; Van Dyke v. Geary, 244 U. S. 39; San Diego Land & Town Co. v. National City, 174 U. S. 739; City of Knoxville v. Knoxville Water Co., 212 U. S. 1.) VIII. The Ben Avon case (Ohio Valley Co. v. Ben Avon Borough, 253 U. S. 287), as construed and relied upon by the plaintiff, is no longer the law. Under recent decisions of the United States Supreme Court, there is no Federal requirement that the State provide for the independent judgment of a court upon the underlying questions of fact relating to the issue of confiscation. (Railroad Commission v. Oil Co., 310 U. S. 573, 311 U. S. 570; Power Comm. v. Pipeline Co., 315 U. S. 575; Power Comm. v. Hope Gas Co., 320 U. S. 591; National Labor Relations Bd. v. Jones & Laughlin Steel Corp., 301 U. S. 1; Myers v. Bethlehem Shipbuilding Corp., 303 U. S. 41;, Hudson & Manhattan R. R. Co. v. United States, 313 U. S. 98.)

      Charles E. Murphy, Corporation Counsel {Andrew Bellanca and John Suglia of counsel), for City of New York, amicus curiae, in support of appellant’s position.
    Plaintiff’s remedy, if it be aggrieved by the commission’s rate order, is to a review by certiorari, not a trial de nova, since proceedings under article 78 of the Civil Practice Act satisfy all requirements of due process and permit plaintiff to have the issue of confiscation determined therein.

      Jackson A. Dykman, Edmund B. Naylon, Boyal F. Shepard and George Foster, Jr., for respondent.
    I. In the firing of rates the commission performs a legislative function. (Matter of International Ry. Co. v. Public Service Comm., 226 N. Y. 474; Prentis v. Atlantic Coast Line Co., 211 U. S. 210; Matter of Helfrick v. Dahlstrom Metallic Door Co., 256 N. Y. 199; People ex rel. Schau v. McWilliams, 185 N. Y. 92; Baer Bros. v. Denver & R. G. R. R., 233 U. S. 479; Arizona Grocery Co. v. Atchison, Topeka & Santa Fe Ry. Co., 284 U. S. 370.) II. Eespondent is entitled to a full and complete review of the orders of the commission in a plenary action. The court cannot be .circumscribed in exercising its own independent judgment on both the law and the facts where confiscation is involved. Certiorari precludes the exercise by the court of its supreme function in dealing with the issue of confiscation. (Municipal Gas Co. v. Public Service Comm., 225 N. Y. 89; People ex rel. Municipal Gas Co. v. Public Service Comm., 224 N. Y. 156; Consolidated Water Co. v. Maltbie, 167 Misc. 209; People ex rel. New York & Queens Gas Co. v. McCall, 219 N. Y. 84; Matter of New Rochelle Water Co. v. Maltbie, 248 App. Div. 66; Matter of Pennsylvania Gas Co. v. Public Service Comm., 211 App. Div. 253; People ex rel. Adirondack P. & L. Corp. v. Public Service Comm., 200 App. Div. 268; St. Joseph Stock Yards Co. v. United States, 298 U. S. 38; Prendergast v. New York Tel. Co., 262 U. S. 43; Long Island Water Corp. v. Public Service Comm., 23 F. Supp. 834; Crowell v. Benson, 285 U. S. 22; Ohio Valley Co. v. Ben Avon Borough, 253 U. S. 287.) III. The constitutional guarantees of judicial review of administrative action have not been affected by the Federal cases cited by appellants. (Consolidated Water Co. v. Maltbie, 167 Misc. 269; Matter of New Rochelle Water Co. v. Maltbie, 248 App. Div. 66; Matter of Pennsylvania Gas Co. v. Public Service Comm., 211 App. Div. 253; Estep v. United States, 327 U. S. 114; Williams v. North Carolina, 317 U. S. 287; Mahnich v. Southern S. S. Co., 321 U. S. 96; Ohio Valley Co. v. Ben Avon Borough, 253 U. S. 287; Prentis v. Atlantic Coast Line Co., 211 U. S. 210; Railroad Commission v. Oil Co., 310 U. S. 573, 311 U. S. 634, 311 U. S. 570; St. Joseph Stock Yards Co. v. United States, 298 U. S. 38; Power Comm. v. Pipeline Co., 315 U. S. 575; Power Comm. v. Hope Gas Co., 320 U. S. 591.) IV. Appellants’ proposal to change the law respecting review in the nature of certiorari has been repeatedly rejected by the courts of this State and does not meet constitutional requirements. (People ex rel. Consol. Water Co. v. Maltbie, 275 N. Y. 357; Matter of Fahey v. Wright, 256 App. Div. 474; People ex. rel. S. & U. H. R. R. Co. v. Betts, 55 N. Y. 600; People ex rel. Manhattan Ry. v. Barker, 152 N. Y. 417; Matter of Pennsylvania Gas Co. v. Public Service Comm., 211 App. Div. 253.) V. A plenary action in equity presents no barrier to efficient regulation. (People v. Hudson River Connecting R. R. Corp., 228 N. Y. 203; St. Joseph Stock Yards Co. v. United States, 298 U. S. 38; Stark v. Wickard, 321 U. S. 288.)
   Thacheb, J.

The Public Service Commission appeals pursuant to leave granted by the Appellate Division, Third Department, upon certified questions of law, from an order of the Appellate Division and a judgment thereon which reversed orders of the Special Term, Albany County, granting defendants’ motion for judgment on the pleadings and dismissing the complaint. The Appellate Division granted a temporary injunction against enforcement of the commission’s order prescribing permanent rates and struck out four separate defenses in defendants’ answer. The following questions were certified:

“1. Is the plaintiff entitled to maintain this action?

“ 2. Does the complaint state facts sufficient to constitute a cause of action? ”

In a prior suit beween the same parties, brought to enjoin temporary rates established by, the commission’s order of May 27,1943, we affirmed a dismissal of the complaint (Staten Island Edison Corp. v. Maltbie, 267 App. Div. 72, affd. 292 N. Y. 611). The present action is a plenary action in equity to enjoin the enforcement of the commission’s order of May 27, 1943, prescribing temporary rates and of the commission’s final order of June 19, 1945, prescribing final rates to be charged on and after July 1, 1945.

Allegations of ultimate fact held sufficient to show confiscation in Prendergast v. N. Y. Tel. Co. (262 U. S. 43) are substantially followed in the complaint. Plaintiff alleges that the commission’s orders result in confiscation of its property in violation of its constitutional right to receive a fair return upon the value of its property devoted to public use, specifically alleging the cost of its property devoted to such use within the State, the cost of its reproduction, its reasonable value, the maximum rate of return which the rates prescribed will provide, measured in relation to the cost and also in relation to the fair and reasonable value of its property, and that such rates will not afford a reasonable return on such cost or value. These allegations, which for the purpose of pleading must be taken at face value, show returns of 3.07% on depreciated cost and 2.42% on reasonable value and clearly support the claim of confiscation (Prendergast v. N. Y. Tel. Co., supra). Thus the complaint sufficiently alleges confiscation in violation of plaintiff’s constitutional right — a question which of course may be determined only after the proofs are in (Municipal Gas Co. v. Public Service Comm., 225 N. Y. 89, 98).

The questions certified involve plaintiff’s right to maintain the action in equity and the sufficiency of the allegations to warrant injunctive relief. Each of these questions depends upon the adequacy or inadequacy of the remedy available to plaintiff by a certiorari order under article 78 of the Civil Practice Act to review the rate orders of the Public Service Commission.

In People ex rel. Consol. Water Co. v. Maltbie (275 N. Y. 357, appeal dismissed 303 U. S. 158) we held (pp. 369-370): “ Upon the hearing of an order of certiorari to review a determination of the Commission, the jurisdiction and power of the Appellate Division are defined and limited by section 1304 [now section 1296] of the Civil Practice Act. These powers do not include an independent consideration by the court of any question of fact.”

This was a rate case and we declared, in regard to the scope of our review (p. 366):“In this court the determination of the Commission upon any question of fact is not open to review.. We may reverse a decision or annul a determination only for erroneous determination of a question of law, and after careful consideration of the appellant’s argument, we find no errors there. Upon every point where the determination of the Commission is challenged we find that there is evidence to support the conclusion of the Commission and room for the exercise of choice.”

This is the established rule in certiorari proceedings to review rate orders of the Public Service Commission and it is applied generally in certiorari proceedings to review determinations of administrative boards (People ex rel. N. Y. & Queens Gas Co. v. McCall, 219 N. Y. 84, affd. 245 U. S. 345; Niagara Falls P. Co. v. Water P. & C. Comm., 267 N. Y. 265, 278; Matter of Weber v. Town of Cheektowaga, 284 N. Y. 377, 380; Matter of Newbrand v. City of Yonkers, 285 N. Y. 164, 177-178; Matter of Miller v. Kling, 291 N. Y. 65; Matter of Bolani v. O’Connell, 286 N. Y. 871).

Faced with this limitation upon the jurisdiction and power of the Appellate Division in certiorari proceedings to review a determination of the commission, and seeking an independent consideration by a court of the facts upon which its claim of constitutional right is predicated, plaintiff has brought this plenary action in equity to enjoin confiscation of its property used and useful in the public service, claiming that as a matter of constitutional right it is entitled to a fair opportunity of submitting the issue of confiscation to a judicial tribunal for determination upon its own independent judgment as to both law and facts (Ohio Valley Co. v. Ben Avon Borough, 253 U. S. 287).

When the Consolidated Water Co. case (supra) went to the Supreme Court of the United States, the water company sought to raise this question. The Supreme Court held (pp. 159-160): “Appellant contends that it is entitled to the exercise of the independent judgment of a court as to the law and the facts with respect to the issue of confiscation and that such a review has not been accorded because of the limitations imposed by the state practice in certiorari proceedings. 275 N. Y. at p. 370 * * *. Appellant has no standing to raise this question as appellant itself sought review by certiorari and has not invoked the plenary jurisdiction of a court of equity and it does not appear that this remedy is not available under the state law.”

We are now confronted with that question.

The Ben Avon case (supra) has never been overruled; on the contrary the principle that where constitutional rights of liberty or property are involved due process requires independent judicial determination of the constitutional question in the courts,has been reaffirmed. (St. Joseph Stock Yards Co. v. United States, 298 U. S. 38, 51-52; Crowell v. Benson, 285 U. S. 22, 46, 60; Baltimore & Ohio R. R. Co. v. United States, 298 U. S. 349, 368-369; State Comm. v. Wichita Gas Co., 290 U. S. 561, 569.)

In Phillips v. Commissioner (283 U. S. 589, 600), Brandeis, J., writing for the court, stated the general rule regarding administrative findings and the exception as follows: “ Save as there may be an exception for issues presenting claims of constitutional right, such administrative findings on issues of fact are accepted by the court as conclusive if the evidence was legally sufficient to sustain them and there was no irregularity in the proceedings.” (See, also, Tagg Bros. v. United States, 280 U. S. 420, 443.)

An analogy is found in the right to judicial determination on habeas corpus of a claim of citizenship when one is held for deportation under the immigration laws of the United States (Ng Fung Ho v. White, 259 U. S. 276).

There would indeed be a very drastic limitation upon the constitutional powers of the Supreme Court of the State if it may not enjoin an unconstitutional deprivation of property because of an administrative determination of constitutional right supported by administrative findings of fact believed to be wrong upon a fair consideration of the record. The remedy by certiorari proceedings being thus limited is inadequate in the protection of constitutional right and, in view of the decisions of the Supreme Court of the United States, is lacking in due process. Under these circumstances the Supreme Court of New York as a constitutional court may entertain an action for an injunction, the statutory remedy by certiorari being inadequate.

We are constrained to conclude that the plaintiff is entitled to maintain this action and that the complaint states facts sufficient to constitute a cause of action.

In reaching this conclusion we are not unmindful of the arguments advanced on grounds of convenience, well stated by Foster, J., in the court below: “ Obviously this is an important question in the field of public utility regulation. It is a simple matter to allege confiscation in any rate matter, and if such an allegation is sufficient to invoke the jurisdiction of equity then the way is open for separate trials of the same issues in every rate case; first before the commission, and later at an Equity Term of the Supreme Court. Something rather extraordinary is required to justify a procedure so protracted and cumbersome.” (270 App. Div. 55, 65.)

We find no compelling necessity for a trial de nova of every rate case in which confiscation is claimed. The illegality in such cases is confiscation or deprivation of property without due process of law. The legality of the rate must primarily depend upon the proceedings before the commission, and the record of those proceedings will of necessity be before the trial court since the statute authorizes determination in the first instance by the commission, and the courts may not properly consider the question without knowledge of the administrative record (Railroad Commission v. Oil Co., 310 U. S. 573; Manufacturers Ry. Co. v. United States, 246 U. S. 457,489-490). This appears to be the practice when injunction suits such as this are brought in the Federal courts. We see no reason for departing from that practice in the trial of this action. We need not now consider under what circumstances, if any, the court may be justified in receiving additional proofs or newly discovered evidence. !

We find nothing inconsistent with such a practice in the oil and gas proration cases: Thompson v. Consolidated Gas Corp. (300 U. S. 55), Railroad Commission v. Oil Co. (310 U. S. 573, supra), Railroad Commission v. Oil Co, (311 U. S. 570), or in the cases arising under the Federal Natural Gas Act: Power Comm. v. Pipeline Co. (315 U. S. 575), Power Comm. v. Hope Gas Co. (320 U. S. 591).

The Power Commission cases (supra) arose upon petitions to review orders of the Federal Power Commission under subdivision (b) of section 19 of the Natural Gas Act (U. S. Code, tit. 15, § 717r, subd. [b]). In discussing the scope of review in these cases, Chief Justice Stone, writing for the court in Power Comm. v. Pipeline Co. (supra) said (p. 585): “ By long standing usage in the field of rate regulation, the * lowest reasonable rate ’ is one which is not confiscatory in the constitutional sense. [Citations.] Assuming that there is a zone of reasonableness within which the Commission is free to fix a rate varying in amount and higher than a confiscatory rate [citations], the Commission is also free under § 5 (a) to decrease any rate which is not the * lowest reasonable rate.’ It follows that the Congressional standard prescribed by this statute coincides with that of the Constitution, and that the courts are without authority under the statute to set aside as too low any ‘ reasonable rate ’ adopted by the Commission which is consistent with constitutional requirements.” The opinion then proceeds to a full review of the facts upon which the commission made its determination leading to the conclusion that such determination was consistent with constitutional requirements. In the oil and gas proration eases (supra) the proceedings were by injunction in the Federal courts.

In none of these decisions was the right to try the issue of confiscation disputed. Indeed that was the judicial process pursued in each one of these cases. The opinions are helpful in showing the deference with which a court should consider the findings and conclusions of an expert administrative commission. No doubt a court of equity in this State will be largely influenced by the practice which prevails in the Federal courts.

Counsel for the commission have suggested that the case is of such compelling importance that if judicial review of the question of confiscation is a constitutional requirement, we should broaden the scope of review in certiorari proceedings so as to permit review of that question on the facts as well as the law. This of course we may not do in view of the established limitations on such proceedings to which we have referred. If such changes are desirable, the Legislature, but not the courts, should make them.

Order affirmed, with costs, and each of the questions certified answered in the affirmative.

Desmond, J.

(dissenting). Plaintiff is a New York State corporation doing an intrastate business in the production and sale of electric power. After hearings and other appropriate proceedings before it, defendant Public Service Commission made and promulgated its order fixing permanent rates to be charged by plaintiff. Plaintiff thereupon brought the present suit in equity to enjoin the enforcement of the order. The complaint herein asserts that the rates so established by defendant commission are so low as to be confiscatory of plaintiff’s property and thus unlawful under the Fourteenth Amendment to the United States Constitution and section 6 of article I of the Constitution of this State. The commission moved to dismiss the action on the ground that plaintiff’s only recourse to the courts is by way of a petition for an order of certiorari under article 78 of the Civil Practice Act, and that no suit in equity lies to contest commission-fixed rates. Plaintiff’s retort is that, while certiorari is available, it is not a constitutionally adequate remedy. In certiorari proceedings, plaintiff points out, there would be no new trial and findings by the court on the disputed questions of fact as to value, etc., but only a review by the court of the commission’s findings, to see if they were reasonable and supported by substantial evidence (People ex rel. N. Y. & Queens Gas Co. v. McCall, 219 N. Y. 84, 90, 91; People ex rel. Consol. Water Co. v. Maltbie, 275 N. Y. 357, 370: Matter of Stork Restaurant, Inc., v. Boland, 282 N. Y. 256; Matter of Miller v. Kling, 291 N. Y. 65). Citing Ohio Valley Water Co. v. Ben Avon Borough (253 U. S. 287), for authority, plaintiff has successfully maintained herein that, having adequately alleged unconstitutional confiscation of its property, its absolute right to procedural due process can be satisfied by nothing less than a separate, independent trial de nova by a court, of the same questions already litigated at length before the commission. If that be the law, a good many long, involved rate cases will have to have two trials each, and the first trial — before the commission — will be rather a footless and futile performance. As the dissenting opinion in the Appellate ,Division remarked: Something rather extraordinary is required to justify a procedure so protracted and cumbersome.” (270 App. Div. 55, 65.) “ State regulation of utility rates ” would be, says Corwin’s The Constitution and What It Means Today, rendered largely farcical by the idea that the courts ought to retry from the ground up administrative findings of fact ” (9th ed., p. 171).

Let us at once dispose of the idea that the present decision merely gives plaintiff its choice between two established modes of attacking, in the courts, commission-fixed rates. At a later point in this opinion we will deal more extensively with the historical background of rate review in New York, but we point out now that the decision below in this case was the first in any appellate court in this State allowing a public utility corporation to try out anew, in a separate suit, the factual questions, as to value, return, etc., already submitted to, and determined by, the commission to which the Legislature has delegated sole authority in that field. Such cases as Municipal Gas Co. v. Comm. (225 N. Y. 89) have to do with rates directly fixed by the Legislature itself, to which certiorari review is inapplicable.

If it were not for the Ben Avon case (supra) and the structure of argument built thereon, we could dispose of plaintiff’s suit summarily, fdr it is settled in the decisions of this court that no such bill in equity lies. Certiorari is the remedy provided for reviewing the Public Service Commission’s rate orders (People ex rel. Central Park North & East River R. R. Co. v. Willcox, 194 N. Y. 383). In such a certiorari proceeding there is no second trial of the facts but an examination of the legality of the order — that is, an inquiry by the court as to whether the order is arbitrary or capricious or without support of substantial evidence (People ex rel. New York & Queens Gas Co. v. McCall, supra). In other words, it is the same sort of review afforded by our courts as to determinations by other administrative agencies (Matter of Miller v. Kling, supra). The contention that a rate is confiscatory is, like every other question of law, fully litigable in such proceedings (People ex rel. New York & Queens Gas Co. v. McCall, supra). Such was the New York law before the Ben Avon case, and this court saw nothing in the Ben Avon case to compel a change in the rule (People ex rel. Consol. Water Co. v. Malthie, supra). In both the New York & Queens case and the Consolidated Water case (supra), there were claims of confiscation, but in each instance this court held that certiorari was a sufficient remedy. Both those cases went thereafter to the Supreme Court (245 U. S. 345 and 303 U. S. 158) but the point we are here passing on was not decided by that tribunal, in either case. Both were certiorari cases and in neither did this court say in so many words that an equity suit might not have been brought to establish that the rates were confiscatory. But that was the plain meaning of Judge Lehman’s language in the Consolidated Water case, at page 370 of 275 New York: “ It is true that a determination by a legislative or administrative body on a question of fact is not binding upon a court where the power of the legislative or administrative body is challenged. (Cf. Ohio Valley Water Co. v. Ben Avon Borough, 253 U. S. 287; Crowell v. Benson, 285 U. S. 22; St. Joseph Stoch Yards Co. v. United States, 298 U. S. 38.) . Even so, where the State gives to an administrative body power to determine questions of fact by judicial inquiry subject to review in the courts, no Federal rights are denied by its order unless ‘ there was such a want of hearing or such arbitrary or capricious action on the part of the Commission as to violate the due process clause of the Constitution.’ Except in the form of judicial review the courts do not examine the question whether the evidence preponderates for or against a conclusion. (People ex rel. New York & Queens Gas Co. v. McCall, supra, 245 U. S. at p. 348.) ” That language means that the New York method of court scrutiny of rate orders is by certiorari proceedings and that the scope of our certiorari review adequately meets Federal constitutional requirements, including the requirements of the Ben Avon case. It is impossible to read it as meaning anything different.

Standing on those prior decisions of ours, we could stop at this point and vote for a dismissal of the present suit. But the prominence given the Ben Avon case {supra) in the briefs here, and a desire to pay due attention to the decisions of the Supreme Court, prompts some further discussion. The Ben Avon opinion does say that, in rate cases “ if the owner claims confiscation of his property will result, the State must provide a fair opportunity for submitting that issue to a judicial tribunal for determination upon its own independent judgment as to both law and facts; otherwise the order is void because in conflict with the due process clause, Fourteenth Amendment ” (253 U. S. at p. 289). On its face, in its setting and against its particular factual background, that quoted language does seem to mandate a full new trial in the courts of facts disputed before the commission, and it has been frequently cited by judges and commentators as meaning just that. Whether or not it has been (implicitly but not explicitly) overruled by later cases in the same court (see Railroad Commission v. Oil Co., 310 U. S. 573, 311 U. S. 570; Power Comm. v. Pipeline Co., 315 U. S. 575, and Power Comm. v. Hope Gas Co., 320 U. S. 591), we need not say. However, the so-called ‘‘ Ben Avon rule ’’ has been, to put it most mildly, weakened by those more recent decisions of the same court (see, as to the “ vitality ” of the Ben Avon doctrine, 42 Am. Jur., Public Administrative Law, § 222). For instance, in Railroad Commission v. Oil Co. (supra), the Texas Bailroad Commission had, pursuant to a Texas statute, set the amount of crude oil permitted to be produced daily from an oil field and had prorated that production among the wells in that field. The oil company brought suit in the Federal courts, asserting that the proration resulted in an unconstitutional taking of its property rights in its own wells. The Federal District Court conducted a trial de. nova, at the conclusion of which it held that the commission’s order did result in such confiscation, and granted an injunction. The Circuit Court affirmed the decree. The United States Supreme Court reversed, disregarded the new findings and went back to the Bailroad Commission’s findings, with these comments: Nothing in the Constitution warrants a rejection of these expert conclusions. Nor, on the basis of intrinsic skills and equipment, are the federal courts qualified to set their independent judgment on such matters against that of the chosen state authorities. For its own good reasons Texas vested authority over these difficult and delicate problems in its Rail-road Commission. Presumably that body, as the permanent representative of the state’s regulatory relation to the oil industry equipped to deal with its ever-changing aspects, possesses an insight and aptitude which can hardly be matched by judges who are called upon to intervene at fitful intervals. Indeed, we are asked to sustain the district court’s decree as though it derived from an ordinary litigation that had its origin in that court, and as though Texas had not an expert Commission which already had canvassed and determined the very issues on which the court formed its own judgment. For it appears that the court below nullified the Commission’s action without even having the record of the Commission before it. When we consider the limiting conditions of litigation — the adaptability of the judicial process only to issues definitely circumscribed and susceptible of being judged by the tech-' ñiques and criteria within the special competence of lawyers —1 it is clear that the Due Process Clause does not require the feel of the expert to be supplanted by an independent view of judges on the conflicting testimony and prophesies and impressions of expert witnesses.” (311 U. S. 570, 575-576.) The statement just quoted is fundamentally at variance with the holding now being made by this court in the present case: that the Federal Constitution requires that whenever a utility corporation alleges that a rate is confiscatory, the corporation is entitled to bring an equity suit and demand new, independent findings by the court as to whether or not the rate is reasonable and fair. And how are we to reconcile with the majority opinion in the present case the Supreme Court holdings, in Power Comm. v. Pipeline Co. (supra) and Power Comm. v. Rope Cas Co. (supra) that a commission is not bound to the use of any single formula or combination of formulae in determining rates, that whenever a commission rate order is challenged in the courts the question is whether that order viewed in its entirety meets legal requirements, that the result reached, not the method employed, is controlling as to the legality of the rate, that it is not the theory but the impact of the rate order which counts, and, finally, that, if the total effect of the rate order cannot be said to be unjust and unreasonable, judicial inquiry is at an end?

This court, itself, after the Ben Avon decision, again tested our certiorari procedures by that case’s rules and found that they stood the test (Consolidated Water case, supra). This court thought then that due process does not require that any fact be tried out twice in separate tribunals before a binding result be reached. The property owner who charges confiscation is given a court determination of that issue, but the issue is decided by the court on the reasonable factual holdings made by another competent tribunal, as to values and other items basic to rate making. That special tribunal created and equipped by the Legislature for the special task has already investigated the facts and arrived at an appropriate rate. All of that is then examined by a court to see if the owner’s rights are being violated. A brief look at the development of the law of rate making will show, we think, why the courts of New York hold that this system lacks no element of due process.

No State, under the guise of regulating fares and tariffs, may require a utility company to perform its services without appropriate reward (Railroad Commission Cases, 116 U. S. 307, 331). Accordingly, the rates charged by the owners of private property devoted to public utility uses may be regulated by the States in the exercise of their police power, but a State cannot take away an owner’s right to reasonable compensation for such use (Munn v. Illinois, 94 U. S. 113). It follows that any prescription, by a State, of rates too low for just compensation to the public utility corporation is confiscatory and offends against the Fourteenth Amendment’s requirement of due process (Smyth v. Ames, 169 U. S. 466, 526). Likewise violative of the due process mandate would be a State statute which would attempt to give finality and conclusiveness to rates fixed by a State public service commission without provision for any judicial inquiry as to their reasonableness (Chicago, Milwaukee & St. Paul Ry. Co. v. Minnesota, 134 U. S. 418,458). An avenue of judicial approach there must be. Bate making by a State government is, of course, legislative, not judicial, in general character (Prentis v. Atlantic Coast Line, 211 U. S. 210, 226; Matter of Helfrick v. Dahlstrom Metallic Door Co., 256 N. Y. 199, 207), since it is an exercise of the police power (Buffalo East Side R. R. Co. v. Buffalo Street R. R. Co., 111 N. Y. 132) and its regulations are to be applied in the future (Norwegian Nitrogen v. United States, 288 U. S. 294, 318, 319). But while the setting of rates is legislative, the determination of whether or not a particular rate works out to an illegal forfeiture of private property, is a judicial inquiry (see People ex rel. Schau v. McWilliams, 185 N. Y. 92, 95, 96). From all of that there follows the rule of constitutional interpretation that adequate judicial procedures for such inquiries must be made available by the rate-fixing State (Chicago, Milwaukee & St. Paul Ry. Co. v. Minnesota, supra; Smyth v. Ames, supra). This procedural due process, however, does not call for any particular mode of court activity. The right to due process does not give a citizen a vested right to any one form of procedure. It is enough that he be afforded access to the courts for protection of his property (Truax v. Corrigan, 257 U. S. 312, 332; Hurtado v. California, 110 U. S. 516, 536). Due process, as applied to a judicial inquiry, means a course of legal proceedings according to established rules and procedures for protecting and enforcing private rights (Pennoyer v. Neff, 95 U. S. 714, 733; Scott v. McNeal, 154 U. S. 34, 46). It means the following of forms of law appropriate to the case and just to the parties {Hagar v. Reclamation District No. 108, 111 U. S. 701, 708). “ The due process clause of the Fourteenth Amendment requires that action by a state through any of its agencies must be consistent with the fundamental principles of liberty and justice which lie at the base of our civil and political institutions, which not infrequently are designated as ‘ the law of the land.’ ” (Buchalter v. New York, 319 U. S. 427, 429.) In the end, it connotes procedure having the sanction of settled usage ” (People v. Adirondack Railway Co., 160 N. Y. 225, 236, affd. 176 U. S. 335). As Lord Coke put it, it means being brought in to answer “ according to the old law of the land ’ ” (Westervelt v. Gregg, 12 N. Y. 202, 212). The courts must furnish protection “ against all mere acts of power, whether flowing from the legislative or executive branches of the government ” (Westervelt v. Gregg, supra, p. 212), by offering the citizen a “ forensic ” judgment on his complaint, not mere legislation ” (Taylor v. Porter, 4 Hill 140, 146, 147).

By affirming the orders below in the present suit, we are holding that our customary certiorari proceedings under .article 78 of the Civil Practice Act somehow fail to meet the tests outlined above. Wherein are they deficient? The ultimate determination of the validity of commission-established utility rates is now, as it always has been, in the courts. In this State certiorari as a traditional and accepted method of reviewing the action of inferior bodies or officers is older than the Fourteenth Amendment, and older than the State itself (People ex rel. Republican & Journal Co. v. Lasansky, 208 N. Y. 435, 441). In our State the whole judicial power is not committed to the courts in the first instance (People ex rel. Steward v. Railroad Comrs., 160 N. Y. 202, 207) but the courts have always been empowered to re-examine the judicial or quasi-judicial action of other bodies by way of certiorari (Mopers v. Smedley, 6 Johns. Ch. 28; People ex rel. Hanford v. Thayer, 88 Hun 136; Hyatt v. Bates, 40 N. Y. 164, 166). For over a century the Hew York courts have found it sufficient to review such actions as to their legality, including a search of the record in each case to see if there be any evidence supporting the determination below, but without a retrial of fairly disputed questions of fact (People ex rel. Bodine v. Goodwin, 5 N. Y. 568; People ex rel. Cook v. Board of Police, 39 N. Y. 506; People ex rel. Burby v. Common Council, 85 Hun 601; People ex rel. Haines v. Smith, 45 N. Y. 772, and see section 2140 of the old Code of Civil Procedure, enacted in 1880, and former section 1304 of the Civil Practice Act, the latter now superseded by present section 1296 of the Civil Practice Act). As Judge Cxjddbbagk pointed out in People ex rel. New York & Queens Gas Co. v. McCall (supra), that limited judicial. review avoids substituting the judgment, of judges for that of other officers in matters of faqjt, but does include an inquiry into questions of jurisdiction, authority and similar questions of law. In other words, the courts do not interfere with the commission’s business any further than is necessary to keep the commission within the law and protect the property rights of the utility corporations. This court’s opinion in the New York & Queens ease (supra) points out (219 N. Y. at pp. 88, 90) that our certiorari method of scrutinizing commission-made rates is in seeming accord with Interstate Commerce Comm. v. Illinois Central R. R. Co. (215 U. S. 452) and State v. Great Northern Ry. Co. (130 Minn. 57). In the Great Northern case, the Minnesota court remarked that any general de nova trial by a court of a rate question would amount to an unconstitutional assumption by that court of an essentially legislative function.

To bring our list of New York decisions down to date, we point to Matter of Bumsey (296 N. Y. 113), decided in January of this year. The Bumsey Corporation was ordered by the State Labor Department authorities to pay penalties totaling $1,000 for delays in filing its payroll statements. The corporation insisted that all the evidence taken at the departmental hearings proved that it had been absolutely impossible to get the reports in on time. Section 623 of the State Labor Law provides that * ‘ A decision of the appeal board shall be final on all questions of fact * * #.” It was argued to us that the statute, insofar as it forbade the courts to weigh the fact issues as to confiscation of property by means of an unwarranted fine, was unconstitutional (see Point III, respondent’s brief in this court, in the Rumsey case). We found no substance ” in that contention (296 N. Y. at p. 118).

In Coler v. Corn Exchange Bank (250 N. Y. 136) Chief Judge Cabbozo, stating this court’s approval on a long-established method of seizing property, wrote: “ Not lightly vacated is the verdict of quiescent years ” (p. 141). He there cited Ownbey v. Morgan (256 U. S. 94, 108, 111) which tells us that one good way of testing court procedures for due process is to see whether they are familiar and time-honored. The Fourteenth Amendment itself expresses an insistence that the States perpetuate old and settled ideas of justice. In the Color case, Chief Judge Cabbozo quoted also from Jackman v. Rosenbaum Co. (260 U. S. 22, 31): “ The Fourteenth Amendment, itself a historical product, did not destroy history for the States and substitute mechanical compartments of law all exactly alike. If a thing has been practised for two hundred years by common consent, it will need a strong case for the Fourteenth Amendment to affect it * * The practice in this State for well over a hundred years has been for the courts to perform their proper judicial functions in relation to quasi-judicial bodies by testing the actions of those bodies for reasonableness and legality, without ousting them from their own special fields of investigation. Due process demands no more.

As we understand the majority’s position, it is that due process requires a plenary equity suit to try plaintiff’s allegation of confiscation, but that no new testimony need be taken, and that the equity court may try the issue on the proof already taken by the commission. It must be clear: first, that plaintiff seeks no such proceeding and does not want new findings on the evidence already heard but demands a real de nova trial, and, second, that, while a new determination on the commission record may satisfy concepts of due process, it finds no authorization or precedent in any procedural statute, rule or decision in this State. After this plenary equity suit has gone to trial and Special Term has weighed for itself the commission testimony, the party aggrieved by the Special Term decision will, we assume, have a right of appeal to the Appellate Division. On. such an appeal the weight of the evidence will again be open. That will make three separate, independent weighings, by one commission and two courts, of the identical testimony,each tribunal having exactly the same function and power, but each overruling the one ahead of it. And, if the Appellate Division makes new findings, this court will for a fourth time pass on the weight of evidence. All this is in supposed obedience to instructions from the Supreme Court, which court not only has indicated in at least three recent decisions that no such new trials are necessary but has said in the Scheekier case (295 U. S. 495, 530) and elsewhere, that nothing in the United States Constitution prevents Congress from delegating the determination of fact questions to any tribunals it sets up.

The Public Service Commission was set up in this State forty years ago. The commission has been investigating and fixing utility rates ever since. The scope of its work and the number and kind of services regulated by it have been gradually increased by the Legislature. The commission now has several hundred officers and employees and an annual budget of about two million dollars. It regulates about thirty-five hundred separate corporations and has conducted thousands of investigations and hearings, a large percentage of them having a direct or indirect effect on rates. Bate reductions running into vast sums have been ordered and put into effect. How a way has been found to take away pretty much all finality from the commission’s rate-making function. We make no prediction as to the size and force of the impact of this present decision on the whole carefully built and strengthened system of protecting the interests of the people of this State. The decision, it cannot be denied, upsets a workable and working system. It authorizes an additional cumbersome and elaborate method of court review when there is neither practical nor theoretical need therefor. And, based as it is on a construction of the Federal Constitution, our ruling will be beyond the power of the State Legislature to correct.

In Administrative Justice and The Supremacy of Law by Dickinson, published in 1927, this was said as to authorizing the courts to make new findings in these cases: “It is like permitting the court to substitute its conclusion in place of the jury’s as to whether the plaintiff in a negligence action did or did not see an approaching vehicle. If the court’s * independent ’ judgment on such a point is to prevail, there would be little use in having a jury. The argument applies with greater force to the finding of a commission, reached in a separate proceeding at much trouble and expense to both the public and the parties. The double process only reduplicates the uncertainty of any particular case and brings it out at the end of the administrative stage of the proceedings with nothing settled which is not liable to be overruled. After the administrative tribunal has spoken, the whole case would still be as open, and the nature of the ultimate decision as uncertain, as if no proceedings had yet been had. Such a hazard is not one which either the community or the utility companies ought fairly to be called upon to bear.” (P. 202.)

The order appealed from should be reversed and the complaint dismissed, with costs in all courts. Both certified questions should be answered in the negative.

Lewis, Conway and Dye, JJ., concur with Thacheb, J.; Desmond, J., dissents in opinion in which Loughran, Ch. J., and Fttld, J., concur.

Order affirmed, etc.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Frank Amon et al., Appellants and Respondents, v. Joseph V. Moreschi, Individually and as President of International Hod Carriers’, Building and Common Laborers’ Union of America, et al., Respondents and Appellants, et al., Defendants.
    Argued February 24, 1947;
    decided May 22, 1947.

      Hyman N. Gliohstein and Daniel W. Meyer for plaintiffs, appellants and respondents.
    I. The application of section 229-b of the Civil Practice Act to the service of process upon the International and upon Moreschi individually is clearly constitutional. Accordingly, strong and compelling public policy favors a construction of that section sustaining its applicability to this case. (Pope v. Terre Haute Car & Mfg. Co., 87 N. Y. 137; Bagdon v. Phil. & Reading C. & I. Co., 217 N. Y. 432; Dollar Co. v. Canadian C. & F. Co., 220 N. Y. 270; Hess v. Pawloski, 274 U. S. 352; Shushereba v. Ames, 255 N. Y. 490; Doherty & Co. v. Goodman, 294 U. S. 623; International Shoe Co. v. Washington, 326 U. S. 310.) II.'Section 229-b of the Civil Practice Act is applicable to the defendant International and service of process on such defendant was properly sustained pursuant to the provisions of that section. (Ostrom v. Greene, 161 N. Y. 353.) III. The person served with process was, at the time of such service, the person in charge of business in which defendant International was engaged in this State. IV. Plaintiffs have complied with the procedural provisions of section 229-b. V. If defendant International Union is viewed as an entity, rather than as an aggregation of individual persons, service upon it was valid and effective as service upon a foreign corporation, pursuant to section 229 of the Civil Practice Act. (Busby v. Electric Utilities Employees Union, 147 P. 2d 865; Matter of Rathbone, 170 Misc. 1030, 262 App. Div. 706, 287 N. Y. 708; Matter of Idem, 256 App. Div. 124, 280 N. Y. 756; Congregational Unitarian Soc. v. Hale, 29 App. Div. 396.) VI. Defendant Moreschi, individually, was duly and validly, served in this action pursuant to the provisions of section 229-b of the Civil Practice Act.

      Edmond B. Butler, Edward T. Galloivay and Joseph E. Swierzbinski for International Hod Carriers’, Building and Common Laborers’ Union of America, appellant, and. Joseph V. Moreschi, respondent, appearing specially.
    I. The International, a voluntary association consisting of approximately 181,000 members, is not a natural person or persons. (Hagan v. Bricklayers’ Union of Syracuse, 143 Misc. 591; Salitra v. Borson, 127 Misc. 173.) II. The alleged causes of action did not arise out of the “ business ”, if any, which was conducted by the International within the State of New York. (Interchemical Corp. v. Mirabelli, 269 App. Div. 224.) HI. Respondent Moreschi, individually, not being engaged in business as an individual, either within or without the State of New York, is immune from process under such section and the attempted service was void. IV. Whether or not the International is suable as such, the service was still void. V. Upon the record, the attempted service of process on appellant International was invalid.
   Per Curiam.

This ease calls upon us for a construction of the following provision of section 229-b of the Civil Practice Act: “ When any natural person or persons not residing in this state shall engage in business in this state, in any action against such person or persons arising out of such business, the summons may be served by leaving a copy thereof with the complaint with the person who, at the time of service, is in charge of any business in which the defendant or defendants are engaged within this state * * Whether the phrase “ any natural person or persons ”, as so used in section 229-b, includes an unincorporated association is the first question to be determined.

Section 229-b does not stand alone. It is part of article 25 of the Civil Practice Act in which sections 218-235 are grouped under the heading “ Summons ”. Section 225 regulates “ Personal service of summons upon a natural person.” Section 230 deals with orders for substituted service of a summons upon an “ unincorporated association having a president or treasurer residing within the state, or a natural person residing within the state ”. Section 231 fixes the manner of making substituted service of a summons upon an unincorporated association ” or “ a natural person ”. Section 232-a, which lists the persons against whom an order for service of a summons by publication may be made, is divided into eleven subdivisions. Subdivision 2 has reference to an “ unincorporated, association having a president and treasurer neither of whom is a resident of this state ”, while subdivision 5 is concerned with a party who is a natural person and is not a resident of the state ”. Thus in article 25 of the Civil Practice Act, the Legislature at every turn has discriminated an “ unincorporated association ” from “ a natural person ” for the purposes of a statutory systematizing of the matter of service of a summons. In the face of that structure of article 25, we cannot assume that the phrase any natural person or persons ”, as used in section 229-b, was meant to be so drawn out that it would cover unincorporated associations.

The present action was brought against “ Joseph V. Moreschi, individually and as President of International Hod Carriers’, Building and Common Laborers’ Union of America, and International Hod Carriers’, Building and Common Laborers’ Union of America The defendant International Union is an unincorporated association. Service- of the summons- upon the defendant Moreschi as its president (see General Associations Law, § 13) and upon the defendant Moreschi individually was made in accordance with section 229-b of the Civil Practice Act. Both defendants appeared specially and moved to vacate such service. In the courts below, the motion made by the defendant Moreschi individually was granted and the motion made by the defendant International Union was denied. The case is now here upon cross appeals.

On their appeal, the plaintiffs submit, among others, the following question certified: “ 5. Upon the record herein, was the service of process upon the defendant Joseph V. Moreschi, individually, valid? ” We answer “ No ”, since the courts below have found that the defendant Moreschi was not engaged in business in this State in his individual capacity and we cannot declare the contrary of that finding as matter of law.

On the appeal of the defendant International Union, that defendant submits, among others, the following questions certified: “ (1) Was the International Hod Carriers’, Building and Common Laborers’ Union of America a natural person or persons within the meaning of Section 229-b of the Civil Practice Act, and was it intended to be included within the provisions of Section 229-b of the Civil Practice Act? ” “ (9) Upon the record was the attempted service of process on Joseph V. Moreschi as President of the International Hod Carriers’, Building and Common Laborers’ Union of America, and the International Hod Carriers’, Building and Common Laborers’ Union of America valid? ” Disagreeing with the courts below, we answer “No ” to both questions, because, as we have tried to show, section 229-b of the Civil Practice Act was not intended to have application to actions against unincorporated associations.

On the plaintiffs’ appeal: The orders so far as appealed from should be affirmed, with costs; the fifth question certified is answered in the negative; the other questions certified are not answered. :

On the appeal of the defendant International Union: The orders so far as appealed from should be reversed and the motion of the defendant International Union should be granted, with costs; the first and ninth questions certified are answered in the negative; the other questions certified are not answered.

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

Ordered accordingly.


author: Thacheb, J.

text:
    Emma Riley, as Administratrix of the Estate of William Riley, Deceased, Respondent, v. Agwilines, Inc., Appellant.
    Submitted February 17, 1947;
    decided May 22, 1947.

      Ray Rood Allen for appellant.
    Having turned over the vessel in safe condition to the contracting stevedore, the steamship company is not liable for the stevedore’s negligence toward its employee in leaving the hatch unguarded and unlighted during the progress of the stevedoring work. (The Clan Graham, 163 F. 961; The Hindustan, 37 F. 2d 932, 44 F. 2d 1015; Willis v. Lykes Bros. S. S. Co., 23 F. 2d 488; Long v. Silver Line, 48 F. 2d 15; The Kongosan Maru, 292 F. 801; May v. 11½ East 49th St. Co., 269 App. Div. 180, 296 N. Y. 599; Engel v. Eureka Club, 137 N. Y. 100; Water Company v. Ware, 16 Wall. 566; Weinfeld v. Kaplan, 282 N. Y. 348; English v. Merroads Realty Corp., 288 N. Y. 93; Caldwell v. Wildenberg, 228 App. Div. 557.)

      Jaoquin Frank and David M. Fink for respondent.
    I. Defendant, having control of the pier, ship, ship’s electric power, outlets, extension cables and lights, is legally responsible for the dangerous condition that was created. It was defendant that created that condition. (Sulovitz v. United States, 64 F. Supp. 637; Seas Shipping Co. v. Sieracki, 328 U. S. 85; May v. 11½ East 49th St. Co., 269 App. Div. 180; The Helios, 12 F. 732; The Protos, 48 F. 919; Sansol v. Compagnie Generale Transatlantique, 101 F. 390; Drowne v. Great Lakes Transit Corp., 5 F. 2d 58; The Joseph B. Thomas, 86 F. 658; Hamburg-Amerikanische Packetfahrt A. G. v. Gye, 207 F. 247; Gerrity v.
      Bark Kate Cann, 2 F. 241; The Adour, 21 F. 2d 858; La Guerra v. Brasileiro, 124 F. 2d 553.) II. The obligation of a vessel towards its longshoremen is similar to that of a master and servant relationship, particularly so in the instant case because of the ownership and control of all facilities. (Grillo v. Royal Norwegian Government, 139 F. 2d 237; Devaney v. DegnonMcLean Constr. Co., 79 App. Div. 62, 178 N. Y. 620; Phillips Petroleum Co. v. Manning, 81 F. 2d 849; Simpson v. Atlantic Coast Shipping Co., 191 App. Div. 844, 232 N. Y. 533; Dorney v. O’Neill, 60 App. Div. 19, 172 N. Y. 595; Kennedy v. Cunard Steamship Co., 197 App. Div. 459, 235 N. Y. 604; Smith v. Luckenbach, 155 App. Div. 451; The Spokane, 294 F. 242; The No. 34, 25 F. 2d 602.)
   Thacheb, J.

This is an action for wrongful death of plaintiff-respondent’s intestate, William Riley, who, while working as a stevedore on the S.S. Medina, owned, operated and controlled by defendant-appellant, fell through an uncovered hatch in an unlighted part of the deck immediately below the top deck of the vessel.'

Riley was one of a number of longshoremen employed by the Jarka Corporation, a contracting stevedore which was engaged in removing ballast and cargo from the S.S. Medina moored at a pier in New York Harbor. One gang of these longshoremen, of which Riley was a member, worked on the upper ’tween deck at number 3 hatch under a gang foreman who was also an employee of Jarka. Another gang, also employees of Jarka, were engaged in similar work on the same deck at number 2 hatch under another foreman employed by Jarka. The men in Riley’s gang were able to step down from the main deck at number 3 hatch on to sand ballast which was covered with a layer of discarded military clothing. Riley and the other members of his gang proceeded during the day to remove the discarded military clothing by pushing it toward the number 2 hatch, where the gang engaged there put this material in slings and with the ship’s winches and tackle discharged it on the dock. When the clothing had been thus disposed of, Riley and his gang shoveled the ballast, consisting of sand and rocks, into tubs which were raised through the number 3 hatch and dumped into lighters alongside the ship. At about 7:30 p.m. it began to get dark and two lights were placed in number 3 hatch, one inshore and one offshore. With the aid of these lights the men in Riley’s gang continued to work until about a quarter to ten. Shortly before that Riley was seen to walk in the direction of number 2 hatch, for what purpose is not clear, but the only means of egress from the hold where the men were working was a ladder near the edge of number 2 hatch on the ’tween deck. When the men in Riley’s gang quit work they proceeded in the direction of number 2 hatch on the ’tween deck. The place being dark, they called for a light, which was let down to them on a cable through a manhole near number 2 hatch. This light disclosed the fact that the hatch was uncovered and Riley was seen lying below, where he had fallen through the hatch. The hatch covers had been removed by members of the gang working under number 2 hatch, pursuant to directions of their foreman employed by Jarka.

When it got dark this gang called for lights and a light was lowered to them through the open main deck number 2 hatch. When these men had cleaned up the ballast under number 2 hatch on the ’tween deck they were directed by their foreman to remove the hatch covers on that deck, and when that had been done, shortly before 9 o’clock, they proceeded to the main deck by means of the manhole and the ladder near number 2 hatch. Still acting under the directions of their foreman, they replaced the covers of number 2 hatch on the main deck. This operation, of course, required removal of the lights which had been hung on cables in the open hatch and consequently the ’tween deck was left without light near the number 2 hatch which was left open. When the men from number 3 hatch needed light at number 2 hatch they called for it and a light was let down to them through the manhole.

The question of law presented is whether under these facts — which are not in dispute — the owner of the ship became liable for the wrongful death of Riley.

1 Since it is beyond the power of the State by legislation or judicial decision to mold or modify the maritime law (Knickerbocker Ice Co. v. Stewart, 253 U. S. 149), we must look to the decisions of the Federal courts to define the liabilities of shipowners for maritime torts, leaving out of consideration decisions of our own courts or statutes of the State which conflict with the rules of liability established in the Federal courts. (Robins Dry Dock & Repair Co. v. Dahl, 266 U. S. 449, overruling Maleeny v. Standard Shipbuilding Corp., 237 N. Y. 250.)

In Kuhn v. City of New York (274 N. Y. 118) an action to recover damages for wrongful death under section 130 of the Decedent Estate Law was brought by the administratrix of the estate of Francis Kuhn. While Kuhn and other employees of a contractor and a subcontractor engaged in work for the city on Biker’s Island were being transported to work across the East River on the S.S. Observation, her boilers blew up and a number of the men, including plaintiff’s intestate, were killed. Kuhn was an employee of the subcontractor. The suit was against both the general contractor and Kuhn’s employer, the subcontractor. The trial court dismissed the complaint as against Kuhn’s employer and there was a verdict for the plaintiff against the general contractor. Thus the action was not founded on a contract of employment and recovery was sought against the general contractor as against a stranger to the employment on the usual grounds of negligence claimed to be available in such an action. But the only claim of negligence was that a defective boiler rendered the vessel unseaworthy. We held: “ Because of the location of the accident, the matter was not of local concern and the substantive rights. and obligations of the parties arose not out of the local law of New York State, but under the maritime law of the United States (Robins Dry Dock & Repair Co. v. Dahl, 266 U. S. 449; Messel v. Foundation Co., 274 U. S. 427, 429), while any appropriate remedy afforded by the common law and the New York State death statute is saved. (U. S. Code, tit. 28, § 41 [3]; Dec. Est. Law, § 130; Waring v. Clarke, supra [5 How. (U. S.) 441]; Chelentis v. Luckenbach S. S. Co., 247 U. S. 372.) Notwithstanding the. State court has concurrent jurisdiction with the Federal courts to entertain the suit (Messel v. Foundation Co., supra; Kellogg & Sons, Inc., v. Ricks, 285 U. S. 502, 514) and the action is brought in the State court, the principles and rules of the substantive maritime law are alone to be applied as ground, if any, for recovery. (Robins Dry Dock & Repair Co. v. Dahl, supra; Chelentis v. Luckenbach S. S. Co., supra; Southern Pac. Co. v. Jensen, 244 U. S. 205.) ” (Pp. 129-130.) That was - — as this is — an action for wrongful death under the local State statute which affords an appropriate remedy but does not modify the substantive maritime lay upon which the rights and obligations of the parties arise. We are not unmindful of the recent decision in Puleo v. H. E. Moss & Co. (159 F. 2d 842 [C. C. A. 2d, 1947]), where an action was brought for wrongful death arising under the New York statute. If there is anything in that case contrary to our decision in Kuhn v. City of New York (supra) we are nevertheless constrained to reaffirm the rule there stated, since the decision in that case was predicated upon our understanding of the applicable decisions of the Supreme Court of the United States.

The instant case went to the jury on instructions that the shipowner was under an absolute nondelegable duty to see that light was furnished at number 2 hatch on the ’tween deck and could not relieve itself of that duty by showing that it had engaged Jarka, the stevedoring corporation, to do the work. Exception was taken to these instructions.

The ’tween deck was a safe place for the men to work when the longshoremen, employees of Jarka, took over the work of unloading ballast. It remained entirely safe until the covers at number 2 hatch on the ’tween deck were removed and the place became dark. It was Jarka and not the shipowner who removed the hatch covers and left the hatchways unguarded and unlighted. The ship was equipped with ample facilities for supplying completely adequate light and there were available to the longshoremen lights which could be and were let down on long cables to light the places where the men were working on the ’tween deck. These facts are not in dispute. The maritime law imposes no liability upon the vessel or its owner when a longshoreman employed by a stevedoring corporation engaged in loading or discharging the vessel is injured because of the manner in which the longshoremen carry on the work or because of their failure to use appliances furnished for their use, including lights available for lighting the ’tween decks or other parts of the -/,hip where the work is done. (The Hindustan, 37 F. 2d 932 [D. C.], affd. 44 F. 2d 1015 [C. C. A. 2d] Long v. Silver Line, 48 F. 2d 15 [C. C. A. 2d]; The Omsk, 266 F. 200, 201 [C. C. A. 4th]; The Clan Graham, 163 F. 961 [D. C Ore.], cited with approval in Long v. Silver Line, supra.) Nor is there negligence h. leaving' open a cargo hatch while the vessel is in port (Smith v. United States, 18 F. 2d 111 [C. C. A. 2d]; The Saratoga, 94 F. 221 [C. C. A. 2d]; The Kongosan Maru, 292 F. 801 [C. C. A. 9th]; The Louisiana, 74 F. 748 [C. C. A. 5th]). Hatches must be removed to receive aud discharge cargo and to ventilate the ship while in port. The vessel must be seaworthy; its equipment and tackle and machinery must be in order, and if there be defects in such gear resulting in personal injuries the operator of the ship will be liable, not only to the members of the crew but to stevedores as well (Seas Shipping Co. v. Sieracki, 328 U. S. 85). There were no such defects in this case and the lights were at hand. They were tools furnished for use in the safe conduct of the work and if not used the negligence was not that of the ship or its owner.

Nor was there any evidence of affirmative negligence on the part of the officers of the ship. When the hatch covers were replaced on number 2 hatch on the main deck, the lights hanging in the open hatch were necessarily removed. That was an incident unavoidable in the progress of the work and, whether performed by a longshoreman or by a member of the crew, was not negligence so long as the lights were available when called for by the men. working below. The fact that lights were let down through the manhole when called for demonstrates that they were at hand available when needed.

Under these circumstances the shipowner was entitled to a dismissal of the complaint.

The judgments should be reversed and the complaint dismissed, with costs in all courts.

Loughban, Ch.J., Lewis, Desmond, Dye and Fuld, JJ., concur; Conway, J., taking no part.

Judgments reversed, etc.


text:
    Pearl Munzer, Appellant, v. Russell E. Blaisdell (Superintendent of Rockland State Hospital) et al., Respondents.
    Argued May 19, 1947;
    decided May 22, 1947.

      Nathaniel L. Goldstein, Attorney-General (Ruth Kessler Toch of counsel), for motion to dismiss appeal.

      Pearl Munzer, in person, in opposition to motion for dismissal of appeal and for other motions.
   Per Curiam.

Buie 234 of the Buies of Civil Practice provides . in part that the appellant must cause a printed copy of the requisite papers to be filed in the office of the clerk of the appellate division within twenty days after an appeal has been taken ” or, if it be necessary to make a case, ‘1 within twenty days after the settlement of the case ”. In the case at bar, the notice of appeal to the Appellate Division from the judgment dismissing the complaint was served by plaintiff on April 30, 1946. On December 30, 1946, eight months later — during which time no papers had been filed as required — the Appellate Division unanimously dismissed the appeal for failure to comply with rule 234. It is from the judgment of dismissal entered upon that order that the present appeal is taken. The rule prescribes a reasonable calendar and practice requirement. In the absence of any constitutional question — arid there is no such question here — the appeal from the judgment entered on the unanimous order of the Appellate Division does not lie to this court as a matter of right. Accordingly, we have no alternative but to dismiss plaintiff’s appeal. The appeal being dismissed, it follows that the motions made by plaintiff must likewise be dismissed. The appeal should be dismissed, without costs, and the plaintiff’s motions dismissed, without costs.

Appeal dismissed.


text:
    John O’Connor, Appellant, v. Hudson River Day Line, Respondent.
    Argued May 27, 1946;
    decided July 23, 1946.

      Arthur N. Seiff, Moses Smith and Emanuel Redfield for appellant.

      Donald Havens and David L. Corbin for respondent.
   Judgment affirmed, with costs, upon the ground that there was no evidence to support the jury’s finding that plaintiff’s efforts were the procuring cause of the. requisitioning of defendant’s vessel. We decide no other question. No opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Thachbr and Furo, JJ. Taking no part: Dye, J.


text:
    Liberina Iacono et al., Respondents, v. New York Polyclinic Medical School and Hospital, Appellant.
    Argued June 3, 1946;
    decided July 23, 1946.

      William B. Shelton, Vincent F. O’Rourke and John J. O’Connor for appellant.

      David C. Broderick, Charles S. Vaccaro and Caesar B. F, Barra for respondents.
   Judgment affirmed, with costs. From the evidence and under the instructions of the court the jury could have found that the plaintiff’s injury was caused by a defect in the hot water bag or neglect in failing to properly tighten the cap to prevent leaking.

Concur: Lottghban, Oh. J., Lewis, Conway, Desmond, Thacheb and Fttld, JJ. Taking no part: Dye, J.


text:
    Timothy O’Toohil, Respondent, v. Lewis Smith, Appellant.
    Argued June 4, 1946;
    decided July 23, 1946.

      Be Silver Brew for appellant.

      George E. Carrie for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lotjghran, Ch. J., Lewis, Conway, Desmond,

Thaoheb and Fold, JJ. Taking no part: Dye, J.


text:
    City of New Rochelle, Respondent, v. Florence B. Closter et al., Appellants.
    Argued June 5, 1946;
    decided July 23, 1946.

      Lyle Evans Mahan and Morgan H. Seacord for appellants.

      Aaron Simmons, Corporation Counsel (Francis S. Claps of counsel), for respondent.
   Appeal dismissed, with costs, upon the ground that no constitutional question was properly raised in the courts below. No opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Thaoher and Fuld, JJ. Taking no part: Dye, J.


text:
    Margaret Anderson, as Administratrix of the Estate of Bernt Anderson, Deceased, Respondent, v. Steel Products Transportation Co., Appellant.
    Argued June 10, 1946;
    decided July 23, 1946.

      Harry D. Sanders and John F. Connelly for appellant.

      John E. Drury, Jr., and Edward J. Desmond for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loughean, Ch. J., Lewis, Conway, Thacher and Fuld, JJ. Taking no part: Desmond and Dye, JJ.


text:
    Fareed Kiamie, as Executor of Najeeb Kiamie, Deceased, Appellant, v. Equitable Life Assurance Society of the United States, Respondent.
    Argued June 11, 1946;
    decided July 23, 1946.

      Martin M. Kolbrener and Julius Cutler for appellant.

      Eugene T. O’Neill, Marshall F. Denenholz and Leo D. Fitzgerald for respondent.
   Judgment of the Appellate Division reversed, and order of Trial Term affirmed, with costs, in this court and in the Appellate Division, on the ground that the order of the Trial Term was not appealable to the Appellate Division. (See Ripstoss v. N. Y. C. R. R. Co., 285 N. Y. 789.) No opinion.

Concur: Loughban, Ch. J., Lewis, Conway, Desmond and Thaohee, JJ. Taking no part: Dye and Fuld, JJ.


text:
    The People of the State of New York, Respondent, v. Joseph S. Fay and James Bove, Appellants.
    Argued June 12, 1946;
    decided July 23, 1946.

      Harold B. Medina, Thomas B. Fay, Bóberi J. Fitzsimmons and I. Maurice Wormser for Joseph S. Fay, appellant.

      Moses Polakoff and Samuel Mesansky for James Bove, appellant.

      Frank S. Hogan, District Attorney (Whitman Knapp, Joseph A. Sarafite, Milton H. Spiero and Sylvia Jaffin Singer of counsel), for respondent.
   Judgment affirmed. Upon this appeal there was presented and necessarily passed upon a question under the Constitution of the United States, viz.: the defendants argued that the decision of the Trial Court in granting the motion of the People for a special jury and in overruling the challenge of defendants to the special jury panel constituted a denial of due process and a violation of their rights under the Fourteenth Amendment of the Constitution of the United States. This Court held that the granting of the motion of the People for a special jury and the overruling of the challenge of the defendants to the special jury panel was not a denial of due process or a violation of defendants’ rights under the Fourteenth Amendment to the Constitution of the United States. No opinion.

Concur: Loughean, Ch. J., Lewis, Conway, Desmond and Thacheb, JJ. Taking no part: Dye and Fuld, JJ.


text:
    City Bank Farmers Trust Company et al., as Trustees, Respondents, v. Stella S. Housman et al., as Executors of William O. Burton, Deceased, et al., Defendants; Harry Civiletti, as Executor of Patricia B. Lonergan, Deceased, et al., Respondents, and American Aid Society of Paris, France, et al., Appellants.
    Argued June 13, 1946;
    decided July 23, 1946.

      Basil Rotillard, for appellants.

      Charles Looker for plaintiffs-respondents.

      Seth V. Elting and William Saxe for Lucile W. Burton, guardian ad litem, defendant-respondent.

      Stephen J. McTague and John W. Keating for Harry Civiletti as executor, defendant-respondent.
   Judgment affirmed, with costs to all parties appearing separately and filing briefs payable out of the trust estate. No opinion.

Concur; Loughran, Ch. J., Lewis, Conway, Desmond, Thacher and Fuld, JJ. Taking no part: Dye, J.


text:
    Knowlton Durham, Appellant, v. Idonah S. Perkins, Respondent.
    Argued June 13, 1946;
    decided July 23, 1946.

      Albert Adams for appellant.

      J. Arthur Leve for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lottghran, Oh. J., Lewis, Conway, Desmond, Thaoher and Finn, JJ. Taking no part: Dye, J.


text:
    Charles E. Riordan, as Ancillary Administrator D. B. N. C. T. A. of the Etate of John J. Riordan, Jr., Deceased, Respondent, v. Josephine M. Crabtree et al., Appellants.
    Counsel appeared June 6, 1946;
    decided July 23, 1946.

      John T. Noonan for appellants.

      Herbert Noble, Jr., for respondent.
   Appeal dismissed, without costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Thacher and Ftild, JJ. Taking no part: Dye, J.


text:
    The People of the State of New York, Respondent, v. Samuel J. Gellard and Samuel Kessler, Appellants.
    Argued May 28, 1946;
    decided July 23, 1946.

      1. Maurice Wormser and Jac M. Wolf for Samuel J. G-ellard, appellant.

      Harold O. N. Frankel for Samuel Kessler, appellant.

      Frank S. Hogan, District Attorney (Richard G. Denser and Whitman Knapp of counsel), for respondent.
   Judgment affirmed; no opinion.

Concur: Loughban, Ch. J., Lewis, Conway, Desmond and Thacheb, JJ. Taking no part: Dye and Fuld, JJ.


text:
    Emma Naugle, Respondent, v. George Naugle, Appellant.
    Submitted June 3, 1946;
    decided July 23, 1946.

      Joseph J. Kozinn and Marshall Rooney for appellant.

      Beane Ramey for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loughrah, Ch. J., Lewis, Conway, Desmond, Thacher and Fuld, JJ. Taldng no part: Dye, J.


text:
    In the Matter of the Accounting of City Bank Farmers Trust Company et al., as Trustees under the Will of Jacob P. Baiter, Deceased, Respondents. Kathryn F. Evans, Appellant; Houston V. Evans, Jr., et al., Respondents.
    Argued June 3, 1946;
    decided July 23, 1946.

      Monroe E. Stein for appellant.

      Robert E. Koehler and Russell Page Koehler for respondents.
   Order affirmed, with costs payable out of the estate to all parties appearing separately and filing briefs. Questions certified answered in the affirmative; no opinion.

Concur: Lottghran, Ch. J., Lewis, Conway, Desmond, Thacher and Ftjld, JJ. Taking no part: Dye, J.


text:
    Mary M. Adams et al., as Executors of Helen L. Sackett, Deceased, Appellants, v. Riker Operating Company, Inc., Respondent.
    Submitted June 4, 1946;
    decided July 23, 1946.

      Walter E. Warner, Jr. and Frank W. Chambers for appellants.

      Max Schmer and Raphael H. Rhodes for respondent.
   Order affirmed, with costs. First question certified answered in the negative. Second question certified answered in the affirmative. No opinion.

• Concur: Lohghran, Ch. J., Lewis, Desmond and Thacher, JJ. Conway and Fuld, JJ., dissent upon the ground that the lease, both in its original form and as modified, provided for a rental in a graduated scale ” within the meaning Of Laws of 1945, chapter 314, section 13, as amended by Laws of 1946, chapter 273, and accordingly the lease provisions with regard to rent should control. Taking no part: Dye, J.


text:
    In the Matter of the Claim of Sadie Levey, Respondent, against Leo Newman’s Theatre Ticket Office et al., Appellants. Workmen’s Compensation Board, Respondent.
    Argued June 6, 1946;
    decided July 23, 1946.

      Bernard F. Farley for appellant.

      Nathaniel L. Goldstein, Attorney-General (Boy Wiedersum and Frederic J. Wood of counsel), for respondent.
   Order affirmed, with costs to Workmen’s Compensation Board; no opinion.

Concur: Loughban, Ch. J., Lewis, Conway, Desmond, Thacheb and Fuld, JJ. Taking no part: Dye, J.


text:
    Joseph Schorr, Respondent, v. New York City Housing Authority, Appellant.
    Submitted June 6, 1946;
    decided July 23, 1946.

      Louis Helfenstein, Seymour J. Bernstein and Norman Lustig for appellant.

      Joseph J. Emhorn and Frank Zuckerbrot for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loughban, Ch. J., Lewis, Conway, Desmond, Thacheb and Fuld, JJ. Taking no part: Dye, J.


text:
    In the Matter of the Adoption of Baby Trisko, also Known as Evelyn Trisko, an Infant. Elizabeth Demyen et al., Appellants; Herbert H. Holt et al., Respondents.
    Submitted June 6, 1946;
    decided July 23, 1946.

      Charles J. Hyman and Nathan Cooper for appellants.

      Benjamin Gross for respondents.
   Order affirmed, without costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Thacher and Fttld, JJ. Taking no part: Dye, J.


text:
    Courtney M. Mabee et al., Appellants, v. White Plains Publishing Company, Inc., Respondent.
    Submitted June 10, 1946;
    decided July 23, 1946.

      Stephen R. J. Roach for appellants.

      Elisha Hanson, William K. Van Allen, Letitia Armistead and Frances K, Marlatt for respondent.
   Remittitur amended so as to provide that the judgment of the Appellate Division is reversed and the case remitted to that court for further proceedings not inconsistent with the opinion of the United States Supreme Court herein, without costs. No opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Thacher and Fuld, JJ. Taking no part: Dye, J.


text:
    L. N. Jackson & Company, Inc., Appellant, v. Seas Shipping Company, Inc., Respondent.
    Argued June 10, 1946;
    decided July 23, 1946.

      Copal Mints for appellant.

      Paul L. Murphy and Frank V. Barns for respondent.
   Judgment affirmed, with costs; no opinion. [See 296 N. Y. 635.]

Concur: Loughban, Ch. J., Lewis, Conway, Desmond, Thacheb and Fuld, JJ. Taking no part: Dye, J.


text:
    G. Wellington Douglas, Appellant, v. State of New York, Respondent.
    (Claim No. 27822.)
    Submitted June 12, 1946;
    decided July 23, 1946.

      Benedict 8. Bosenfeld and Albert Jakobson for appellant.'

      Nathaniel L. Goldstein, Attorney-General (John B. Davison and Wendell P. Brown of counsel), for respondent.
   Judgment affirmed, without costs. The paper entered in the Court of Claims pursuant to the order of affirmance by the Appellate Division, although styled an “ order,” was in effect a judgment. No opinion.

Concur: • Loegeran, Ch. J., Lewis, Conway, Desmond, Teacher and Field,.JJ. Tailing no part: Dye, J.


text:
    In the Matter of the Claim of Katherine A. Kaiser et al., Respondents, against U. S. O. Camp Shows, Inc., et al., Appellants. Workmen’s Compensation Board, Respondent.
    Argued June 13, 1946;
    decided July 23, 1946.

      James 1. McGuire and George A. Garvey for appellants.

      Nathaniel L. Goldstein, Attorney-General (Boy Wiedersum and Isaac Frank of counsel), for respondent.
   Order affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Thacheb and Fuld, JJ. Taking no part: Dye, J.


text:
    Regina Margareten, Appellant, v. Lena H. Margareten, as Administratrix with the Will Annexed of the Estate of Jacob Margareten, Deceased, Respondent, et al., Defendants.
    Submitted June 3, 1946;
    decided July 23, 1946.

      Frederick Hemley for appellant.

      Arthur A. Beaudry and Emanuel M. Margareten for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Thaoheb and Fuld, JJ. Taking no part, Dye, J.


text:
    Lawrence Mnich, Appellant, v. American Radiator Company, Respondent.
    Argued June 7, 1946;
    decided July 23, 1946.

      Emil L. Cohen and George E. Phillies for appellant.

      Selby G. Smith for respondent.
   Judgment affirmed, without costs; no opinion.

Concur: Lotjghban, Ch. J., Lewis, Conway, Desmond, Thacher and Field, JJ. Taking no .part: Dye, J.


text:
    Charles L. Schlesinger, as Administrator of the Estate of Nathan Schlesinger, Deceased, Appellant, v. New York Telephone Company, Respondent.
    Argued June 11, 1946;
    decided July 23, 1946.

      ■ Sidney J. Feltenstein for appellant.

      Jordan R. Bassett, Carl M. Abromeit, Irving W. Young and Ralph W. Brown for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loughban, Ch. J., Lewis, Conway, Desmond, Thacheb and Fuld, JJ. Taking no part: Dye, J.


text:
    Homer Gardner, Appellant, v. Shepard Niles Crane & Hoist Corp., Respondent.
    Argued June 12, 1946;
    decided July 23, 1946.

      Gaylord Riggs for appellant.

      Morgan F. Bisselle and Warren. G. Tucker for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loughban, Ch. J., Lewis, Conway, Desmond, Thacheb and Fttld, JJ. Taking no part: Dye, J.


text:
    George L. Guinther, Appellant, v. City of Buffalo et al, Respondents.
    Argued June 13, 1946;
    decided July 23, 1946.

      James 0. Moore, Sr., for appellant.

      Fred C. Maloney, Corporation Counsel (Bart J. Shanahan of counsel), for respondents, except George W. Wanamaker and John E. Selkirk.

      George W. Wanamaker, respondent in person.

      George W. Wanamaker for John E. Selkirk, respondent.

      James P. Cotter for Uniformed Firemen’s Association, amicus curiae, in support of respondents’ position.

      Esmond D. Murphy and Clayton M. Smith for Buffalo Police Association, amicus curiae, in support of respondents’ position.
   Judgment affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Thacher and Fuld, JJ. Tailing no part: Dye, J.


text:
    F. Durand Taylor, Respondent, v. City Investing Company, Appellant.
    Argued April 10, 1946;
    decided July 23, 1946.

      Edward F. Clark and Leonard J. Reynolds for appellant.

      James A. Davis and Leon Quat for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loughban, Ch. J., Lewis, Conway, Desmond, Thacher and Dye, JJ.


text:
    The People of the State of New York, Respondent, v. Louis Brookins, Appellant.
    Argued May 23, 1946;
    decided July 23, 1946.

      Harry A. Sessions for appellant.

      Daniel J. O’Mara, District Attorney (Harry L. Rosenthal of counsel), for respondent.
   Judgment of conviction affirmed; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Thaoher and Fuld, JJ- Taking no part: Dye, J.


text:
    Vernex Estates, Inc., Respondent, v. Charles F. Vachris, Inc., et al., Appellants.
    Argued May 24, 1946;
    decided July 23, 1946.

      George J. Stacy, Frederick L. Thielmann and Joseph Kane for The Long Island Railroad Co., appellant.

      George J. Stacy and Joseph Kane for Charles F. Vachris, Inc., appellant.

      Frank J. Macre and Leonard Acker for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Thaoher and Fuld, JJ. Taking no part: Dyb, J.


text:
    The People of the State of New York, Respondent, v. Edward B. Schwartz, Bernard H. Pallant, Edmund Tenner and Leopold Wolf, Appellants.
    Argued May 27, 1946;
    decided July 23, 1946.

      Theodore Kiendl, William B. Meagher and Abraham J. Gellinoff for Edward B. Schwartz, appellant.

      Louis Olein for Bernard H. Pallant, appellant.

      Leo G. Fennelly for Edmund Tenner and Leopold Wolf, appellants.

      Frank 8. Hogan, District Attorney (Whitman Knapp, Bichard G. Denzer, Wyllys 8. Newcomb and Samuel G. Cantor of , counsel), for respondent.
   Judgment affirmed; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond and. Teacher, JJ. Taking no part: Dye and Ftjld, JJ.


text:
    In the Matter of Manufacturers Trust Company, Appellant, against Rollin Browne et al., Constituting the State Tax Commission, Respondents. In the Matter of the Application to the State Tax Commission for Revision of the Franchise Tax of Chatham Phenix National Bank & Trust Company.
    Argued May 27, 1946;
    decided July 23, 1946.

      Perry A. Hull, Gerard 1. Walters and David Barnett for appellant.

      Nathmiel L. Goldstein, Attorney-General (Irving Galt, Orrin G. Judd and Howard F. Danihy of counsel), for respondents.
   Order affirmed, with costs; no opinion.

Concur: Loughban, Ch. J., Lewis, Conway, Desmond, Thacheb and Field, JJ. Taking no part: Dye, J.


text:
    In the Matter of the Appointment of a Committee of the Property of William Shea, an Alleged Incompetent. Edward C. Raftery, Appellant; George Frankenthaler, as Special Guardian, Respondent.
    Argued May 29, 1946;
    decided July 23, 1946.

      Edward G. Raftery, Arthur F. Driscoll, Dennis F. O’Brien and George A. Raftery for appellant.

      George Franlcenthaler for respondent.
   Order affirmed, with costs to the respondent payable out of the trust fund; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Teacher and Fuld, JJ. Taking no part: Dye, J.


text:
    Mary Malachick, Appellant, v. Joseph Malachick, Respondent.
    Argued June 3, 1946;
    decided July 23, 1946.

      John J. Broderick for appellant.

      Vera Boudin and Sidney Elliott Cohn for respondent.
   Judgment affirmed, without costs; no opinion.

Concur: Lotjghran, Ch. J., Lewis, Conway, Desmond, Thacher and Fuld, JJ. Taking no part: Dye, J.


text:
    The People of the State of New York, Respondent, v. Henry Chimino, Appellant.
    Argued June 4, 1946;
    decided July 28, 1946.

      DeSilver Brew for appellant.

      John 8. Marsh, District Attorney, for respondent.
   Judgment affirmed; no opinion.

Concur: Loughban, Ch. J., Lewis, Conway, Desmond, Thacheb and Fuld, JJ. Taking no part: Dye, J.


text:
    The People of the State of New York, Respondent, v. Harry Cohen, Appellant.
    Argued June 5, 1946;
    decided July 23, 1946.

      Donald L. Ochs and Oscar Levine for appellant.

      Franlc S. Hogan, District Attorney (Harold Boland Shapiro and Whitman Knapp of counsel), for respondent.
   Judgment affirmed; no opinion.

Concur: Loughban, Ch. J., Lewis, Conway, Desmond, Thacher and Fuld, JJ. Taking no part: Dye, J.


text:
    In the Matter of the Claim of Claire Toal, Respondent, against City of New York, Appellant. Workmen’s Compensation Board, Respondent.
    Argued June 6, 1946;
    decided July 23, 1946.

      John J. Bennett, Corporation Counsel (Jeannette U. Harris and Seymour B. Quel of counsel), for appellant.

      Nathaniel L. Goldstein, Attorney-General (Roy Wiedersum, Gilbert M. Landy and Lester D. Volk of counsel), for respondent.
   Order affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Thaohbb and Fund, JJ. Taking no part: Dye, J.


text:
    County Trust Company, Respondent, v. Kenneth C. Quencer, as Ancillary Representative of the Estate of Edward K. Winslow, Deceased, et al., Appellants, and Lillian F. Henkle et al., Respondents.
    Argued June 6, 1946;
    decided July 23, 1946.

      Bern Budi, Kenneth C. Quencer and Bern Budd, Jr., for appellants.

      Edward E. Spencer and Melber Chambers for defendants-respondents, except Ethel Shaw Murray, as administratrix.
   Judgment affirmed, with one bill of costs to defendants-respondents payable out of the trust fund under the trust indenture of March 17, 1939. No opinion.

Concur: Loughban, Ch. J., Lewis, Conway, Desmond, Thacheb and Fuld, JJ. Taking no part: Dye, J.


text:
    Louise B. Dillon, Appellant, v. Nick Moore, Respondent.
    Argued June 11, 1946;
    decided July 23, 1946.

      William C. Maher for appellant.

      Rowland L. Davis and Charles H. Gardner for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loughean, Ch. J., Lewis, Conway, Desmond, Thacheb and Fuld, JJ. Taking no part: Dye, J.


text:
    Catherine Myers, Respondent, v. Albany Savings Bank, Appellant.
    Argued June 12, 1946;
    decided July 23, 1946.

      Edward 8. Rooney and Eugene P. Devine for appellant.

      Boris ScJineeberg and Evelyn E. DeWitt for respondent.

      Jacguelin A. Swords for The Bowery Savings Bank and The Bank for Savings of the City of New York, amici curice, in support of appellant’s position.
   Judgment affirmed, with costs; no opinion. [See 296 N. Y, 636.]

Concur: Loughban, Ch. J., Lewis, Conway, Desmond, Thacher and Fuld, JJ. Taking no part: Dye, J.


text:
    In the Matter of the Estate of Antonio C. Pessano, Deceased. Girard Trust Company et al., as Executors and Trustees under the Will of Antonio C. Pessano, Deceased, Respondents, Anne C. Phillips et al., Infants, by Samuel Levy, Their Special Guardian, Appellants.
    Argued June 13, 1946;
    decided July 23, 1946.

      Morris J. Bricher and Samuel Levy for appellants.

      Edwin W. Cooney and Harold Wisan for respondents.
   Order affirmed, with costs to all parties appearing separately and filing briefs payable out of the fund; no opinion.

Concur: Lottghrax, Ch. J., Lewis, Coxway, Desmomd, Thacheb and Fulo, JJ. Taking no part; Dye, J.


text:
    In the Matter of Tri-Reme Realty Corporation, Appellant. Edward Corsi, as Industrial Commissioner of the State of New York, Respondent.
    Argued June 14, 1946;
    decided July 23, 1946.

      Louis G. Mart, Jr. for appellant.

      Nathaniel L. Goldstein, Attorney-General {Francis B. Cur-ran and Wendell P. Brown of counsel), for respondent.
   Order affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Thacheb and Fuld, JJ. Taking no part: Dye, J.


author: Fuld, J.

text:
    Gertrude Rosen, Appellant, v. 250 West 50 Street Corporation et al., Respondents.
    Submitted June 10, 1946;
    decided July 23, 1946.

      Myron D. Levy and Charles E. Levy for appellant.

      C. Walter Randall for respondent corporation.

      Charles Segal for respondent partnership.
   Judgment affirmed, with costs; no opinion.

Concur: Loughban, Ch. J., Lewis, Desmond and Thacheb, JJ. Fuld, J., dissents in memorandum in which Conway, J., concurs. Taking no part: Dye, J.

Fuld, J.

(dissenting). As I see it, the allegations of the complaint give rise to issues of fact — as to part performance to remove the case9 from the bar of the Statute of Frauds — which should be resolved on a trial rather than upon motion. Quite apart from other allegations relating to defendants’ consenting to the assignment of the existing lease and their receiving and holding for four months plaintiff’s check for additional security under the new lease, proof at the trial in support of the allegation that plaintiff moved into the premises and spent ‘1 divers large sums of money ’ ’ in their improvement, may well establish the expenditure of such sums — and to defendants ’ knowledge — as would, first, be incommensurate with the mere assignment of the old lease and, second, be “ unequivocally referable ” only to a new and extended lease. (Cf. Burns v. McCormick, 233 N. Y. 230, 232.) Accordingly, the judgment should be reversed and defendants’ motions to dismiss the complaint denied.


text:
    Florence H. Freidell, Respondent, v. Addis Co., Inc., Appellant.
    Argued May 24, 1946;
    decided July 23, 1946.

      J. Norman Gra/mage for appellant.

      William H. Reiley for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Lotjghran, Ch. J., Lewis, Conway, Desmond, Teacher and Fuld, JJ. Taking no part: Dye, J.


text:
    All American Bus Lines, Inc., Respondent, v. City of New York et al., Appellants.
    Argued June 4, 1946;
    decided July 23, 1946.

      John J. Bennett, Corporation Counsel (Isaac C. Bonner, Seymour B. Quel and Harry Katz of counsel), for appellants.

      Joseph Henry Cohen, Maurice Ravage and Marshall K. Lynch for respondent.
   Order affirmed, with costs. Question certified answered in the negative. No opinion.

Concur: Loughean, Ch. J., Lewis, Conway, Desmond and Fuld, JJ. Taking no part: Thacher and Dye, JJ.


text:
    William C. Booth, Suing on Behalf of Himself and All Others Similarly Situated, Respondent, v. City of New York et al., Appellants.
    Argued June 4, 1946;
    decided July 23, 1946.

      John J. Bennett, Corf oration Counsel (Isaac C. Bonner, Solomon Portnow, Ira Wollison and Harry Katz of counsel), for appellants.

      Timothy N. Pfeiffer and Rudolf B. Schlesinger for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis,- Conway, Desmond, and Fuld, JJ. Taking no part: Thacher and Dye, JJ.


text:
    Stampers Arrival of Buyers, Inc., Respondent, v. City of New York et al., Appellants.
    Argued June 4, 1946;
    decided July 23, 1946.

      John J. Bennett, Corporation Counsel (Isaac C. Donner, Ira W’ollis'on and Harry Katz of counsel), for appellants.

      James J. Crisona for respondent.
   Judgment affirmed, with costs; no opinion. [See 296 N. Y. 668.]

Concur: Loughran, Ch. J., Lewis, Conway, Desmond and Ftjld, JJ. Taking no part: Thacheb. and Dye, JJ.


author: Fuld, J.,

text:
    In the Matter of the Claim of Luther E. Cook, Respondent, against New York Central Railroad Company, Appellant. Workmen’s Compensation Board et al., Respondents.
    Argued June 6, 1946;
    decided July 23, 1946.

      Robert E. Whalen, Charles E. Nichols and Sherman A. Murphy, Jr. for appellant.

      Nathaniel L. Goldstein, Attorney-General (Roy W eider sum of counsel), for Workmen’s Compensation Board, respondent.

      John M. Cullen for Special Fund for Reopened Cases, respondent.
   Order affirmed, with costs; no opinion.

Concur: . Loughran, Oh. J., Lewis, Conway, Desmond and Thacher, JJ.

Fuld, J.,

dissents on the ground that the voluntary and gratuitous payment of drug or medical bills is not “ payment * * * of compensation previously awarded ” within the meaning of section 25-a of the Workmen’s Compensation Law. Taking no part: Dye, J.


text:
    In the Matter of the Probate of the Will of Bertha L. Hamilton, Deceased. Robert Lamberton et al., Appellants; Thomas P. Heffernan, as Executor of Bertha L. Hamilton, Deceased, et al., Respondents.
    Argued June 10, 1946;
    decided July 23, 1946.

      Clarence G. Pichará, Michael D. Lombardo and Robert M. Dale for appellants.

      J. Russell Rogerson for respondent.

      Nathaniel L. Goldstem, Attorney-General (Henry S. Manley and Wendell P. Brown of counsel),
    in his statutory capacity under section 12 of Personal Property Law and section 118 of Real Property Law.
   Order affirmed, with costs, payable out of the fund to all parties appearing separately and filing briefs; no opinion.

Concur: Loughrax, Ch. J., Lewis, Coxway, Desmoxd, Teacher and Pule, JJ. Taking no part: Dye, J.


text:
    Luther Easley, Respondent et al., Plaintiffs, v. Edgord Realty Corporation, Appellant.
    Argued June 10, 1946;
    decided July 23, 1946.

      Jacob Landy, Isidore E. Levey and Jerome M. Wolff for appellant.

      Max B. Simon for respondent.
   Judgment affirmed, with costs, without prejudice, to such application as plaintiff-respondent may be advised to make at Trial Term for an allowance for his attorney’s services upon this appeal. No opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Thacher and Fuld, JJ. Taking no part: Dye, J.


text:
    The People of the State of New York ex rel. 812 Park Ave. Corporation, Appellant, against Joseph Lilly et al., Constituting the Tax Commission of the City of New York, Respondents.
    Argued June 11, 1946;
    decided July 23, 1946.

      Murray Bendler and Henry H. HarJcavy for appellant.

      John J. Bennett, Corporation Counsel (Philip A. Paulson and Leo Brown of counsel), for respondents.
   Order affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Thacher and Fuld, JJ. Taking no part: Dye, J.


text:
    Isabel Schoenberg, Appellant, v. Irving Schoenberg, Respondent.
    Argued June 12, 1946;
    decided July 23, 1946.

      Samuel Gottlieb and I. Gainsburg for appellant.

      Herman L. Falh and Theodore E. Glicenstein for respondent.
   Judgment affirmed, without costs; no opinion.

Concur: Lottghban, Ch. J., Lewis, Conway, Desmond, Thacher and Fuld, JJ. Taking no part: Dye, J.


text:
    In the Matter of the Estate of Elizabeth Yauch, Deceased. Frank F. Yauch, Appellant; Glen S. Cook, as Executor of Elizabeth Yauch, Deceased, Respondent.
    Submitted June 13, 1946;
    decided July 23, 1946.

      Nicholas G. Powers for appellant.

      John E. Glenn and William A. Glenn■ for respondent.
   Order affirmed, without costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond, Thacher and Fuld, JJ. Taking no part: Dye, J.


text:
    World Exhibit Corporation, Respondent, v. City Bank Farmers Trust Company, as Trustee under a Trust Agreement with Prudence-Bonds Corporation, Appellant.
    Argued June 13, 1946;
    decided July 23, 1946.

      Jackson A. Dykman, Ralph W. Crolly, Milton Loewe and Theodore N. Tarlau for appellant.

      Nathan E. Elman and Edward J. Dansiger for respondent.
   Judgment affirmed, with costs; no opinion.

Concur: Loughran, Ch. J., Lewis, Conway, Desmond,

Thaoher and Fuld, JJ. Tailing no part: Dye, J.