text:
    In the Matter of the Village of Bronxville, Appellant, against Milo R. Maltbie et al., Constituting the Public Service Commission of the State of New York, Respondents.

      Argued October 1, 1940;
    decided November 19, 1940.

      E. J.. Dimock, Barent L. Visscher, A. S. Davis, Jr., and Arnold Frye for appellant.

      Gay H. Brown and Raymond J. McVeigh for respondents.
   Finch, J.

This appeal raises the question as to the extent of the power of an incorporated village, under the Transportation Corporations Law (Cons. Laws, ch. 63) and Public Service Law (Cons. Laws, ch. 48) of this State, to refuse consent to the establishment of intermunicipal omnibus service through such village.

Appellant village is essentially a high class metropolitan suburb and residential community, located in Westchester county about six miles above the New York city line. On the south, Bronxville is bounded by the city of Mount Vernon; to the east, beyond a small part of Eastchestei and North Pelham, lies the city of New Rochelle; and but three hundred yards west of the Bronxville station is the Yonkers city fine. Each of these cities contains a substantial population and a trading center. Bronxville, however, is almost a self-contained community, lacking, perhaps, only the large general department stores. By now its population closely approaches 9,000, not including its large dependent development just over the Yonkers line which regards itself as part of Bronxville for all purposes (e. g., post office, shopping, amusements, churches, clubs, etc.) except the payment of taxes and the receipt of municipal services (e. g., schools, fire and police protection, etc.). The main center of this village is located on its western side, the hub being the station of the Harlem Division line of the New York Central Railroad. In 1937 the Yonkers Bus Company was granted a certificate of public convenience and necessity by the Public Service Commission over the objection of the village authorities to extend its route from Yonkers into the village to the west side of the station. Thereafter the bus company sought to establish the route in question from this eastern terminus at the Bronxville station, through the underpass, easterly on Pondfield road through Bastchester (the town in which the village of Bronxville is located but outside of the village limits); thence through North Pelham and finally to the New York, New Haven and Hartford Railroad station in the city of New Rochelle. The return trip would follow the same route. Again the village authorities refused consent and application was made by the bus company to the Public Service Commission for a further certificate in spite of such refusal. Hearings were held at which numerous interested parties and groups appeared and testified. An amendment to the prior certificate was granted by a three to two vote of the Commission, the majority holding that the village had unreasonably withheld its consent to the proposed route. The bus line commenced operation and continued for some months. Application was made by the village for a rehearing. This was granted, but the original determination was adhered to. It is this determination which the village seeks to have reviewed under article 78 of the Civil Practice Act. Upon transfer to the Appellate Division, third judicial department, that court unanimously sustained the decision of the Public Service Commission. Leave to appeal was granted by this court.

In the consideration of this question the right of an omnibus corporation as a common carrier to establish its lines within a State is dependent upon an interpretation of the intention of the State Legislature as shown in the statutes. (Matter of Dobosen v. Mescall, 205 App. Div. 265; Hadfield v. Lundin, 98 Wash. 657 [1917]; Matter of Dickey, 76 W. Va. 576; City of Memphis v. State ex rel. Ryals, 133 Tenn. 83 [1915]; Greene v. San Antonio, 178 S. W. Rep. 6 [Tex. Civ. App.]; Frick v. City of Gary, 192 Ind. 76 [1922]; Weksler v. Collins, 317 Ill. 132 [1925]; 44 C. J., p. 1028, § 3870. Also see People v. Rosenheimer, 209 N. Y. 115.) Likewise it has been settled that this power of the Legislature may be delegated to the municipalities of the State. (Matter of Dobosen v. Mescall, supra; Dallas v. Gill, 199 S. W. Rep. 1144 [Tex. Civ. App. 1918]; Cummins v. Jones, 79 Ore. 276 [1916]; Jitney Bus Assn. v. City of Wilkes-Barre, 256 Penn. St. 462 [1917]; Melconian v. City of Grand Rapids, 218 Mich. 397 [1922]; Frick v. City of Gary, supra; 44 C. J., p. 1028, § 3870.)

In so far as relevant, our Transportation Corporations Law since 1915 and 1919 has provided:

“ § 66. Consent required. No stage, omnibus line, stage route, motor vehicle line or route, nor any vehicle in connection therewith, and no vehicle carrying passengers at a rate of fare of fifteen cents or less for each passenger within the limits of a city or in competition with another common carrier which is required by law to obtain the consent of the local authorities of such city to operate over the streets thereof shall be operated wholly or partly upon or along any street, avenue or public place in any city, nor shall a certificate of public convenience and necessity be issued therefor, until the owner or owners thereof shall have procured, after public notice and a hearing, the consent of the local authorities of such city, as defined by the railroad law, to such operation, upon such terms and conditions as said local authorities may prescribe. * * *

§ 67. Application of preceding section to towns and villages. The town board of any town or the board of trustees of any village may adopt a resolution providing that the provisions of the preceding section shall apply to such town or village, and thereafter no stages, omnibus or motor vehicle line or route shall be operated, wholly or partly, upon or along any street or highway in such town or village, nor shall a certificate of public convenience and necessity be issued therefor, until the owner or owners thereof shall have procured the consent of the local authorities of such town or village, in the same manner and subject to the same terms and conditions as is provided in the preceding section for procuring the consent of the local authorities of a city; and for such purpose the town board of a town and the board of trustees of a village shall be deemed the local authorities.” (Formerly § 26.)

A reading of the above sections shows that no omnibus corporation could operate upon the streets of a municipality until the corporation had secured the consent of the local authorities, and prior to the foregoing provisions, a certificate of convenience and necessity could not be issued to an omnibus corporation without the consent of the local municipality whether it was a city, town or village. In 1931 the Public Service Law had added to it the following sections (Laws of 1931, ch. 531):

§ 63-d. Franchises and privileges. 1. No omnibus corporation shall operate an omnibus line without first having obtained the permission and approval of the commission having jurisdiction and its certificate of public convenience and necessity, after a hearing had upon notice. * * *

“ 2. Except as otherwise provided in section sixty-three-e, no such certificate of public convenience and necessity shall be issued until there be filed in the office of the commission by the applicant therefor a verified statement showing that the required consent of the proper city or other municipal authorities has been obtained as required by the transportation corporations law. * * *

“ § 63-e. Omnibus corporations operating through or into two or more municipalities; powers of commission.

“ 1. Notwithstanding any inconsistent general or special statute, the commission shall have power to issue a certificate of public convenience and necessity to any omnibus corporation proposing to operate through or into two or more cities, towns, and/or villages without the consent of local authorities of such towns or villages, if such consent is unreasonably refused or withheld, or if unjust or unreasonable conditions are attached to the granting of any such local consent, and may modify any such conditions, or attach new conditions as it shall determine to be just and reasonable. * * *

3. In any proceeding before the commission for a certificate of convenience and necessity without the consent of local authorities of towns or villages, such local authorities shall file with the commission within thirty days from the date of notice a certified statement setting forth the reasons for not granting such consent, or for withholding consent or for attaching conditions to the granting thereof. The commission shall consider such reasons in its determination of whether the local consent was unreasonably refused or withheld or whether the conditions attached thereto were unjust or unreasonable. If such local authorities shall not file said certified statement as herein required, they may not thereafter question such determination of the commission.”

As a result of the addition of the last two provisions above quoted, power within prescribed limits was conferred upon the Public Service Commission to override the wishes of the village. The question here involved concerns the extent of such prescribed limits. In effect it has been held by a three to two vote of the Public Service Commission, and affirmed by the Appellate Division, that the power no longer resides in the village of Bronxville to exclude omnibuses under existing law, but instead, the desire of others for transportation may render futile the protests of this village. The conflict is between consideration for the wishes of a majority of the inhabitants of a village represented by the village trustees on the one hand, as opposed to the need and convenience of a portion of the traveling public.

In holding that those who have chosen to inhabit a rus in urbe may still possess the paramount right to prevent intrusion upon their quietude by an omnibus corporation, we are persuaded not only by the history of the enactments but also by internal evidence contained in the statute.

As already indicated, up to 1931, villages, towns and cities might refuse to permit omnibuses and trolley cars to use the streets of the municipality. In addition, the Sta te Constitution makes secure the right of municipalities to refuse permission for the use of their streets by through trolley lines. (Art. Ill, § 17.) At the hearings held by the Commission appointed by the Legislature to study revision of the Public Service Law, there developed examples of refusal which were based not upon the merits, but upon capricious and, in some cases, venal grounds; as, for example, where consent was refused unless the omnibus route was laid out past a remote farm of an influential member of the Board; or where, as a condition of granting consent, the omnibus corporation was required to pay the wages of an employee theretofore employed by the Chamber of Commerce; or where, for instance, the members of the village board were connected with a railroad company and had pressure brought upon them to vote against granting a consent to the omnibus corporation; or where, after consent had been refused, apparently without reason, the applicant was approached with the suggestion that consent could be acquired at a price; or even where consent was refused for the reason that a local official had had an unpleasant experience with an omnibus or its operator on the road. (Report of the Commission on Revision of the Public Service Commissions Law, Hearings, 1930, vol. 3, pp. 2053-2106.)

Following the submission of a report referring to these abuses, the Legislature enacted the additional sections to the Public Service Law. These examples throw some light upon the intent of the Legislature when it used the words if such consent is unreasonably refused.” We have first the right in the village to prevent the use of its streets; then the mischief occasioned by refusal based upon capricious and even venal reasons, and, lastly, the remedy of permitting the Public Service Commission to override such refusal where the consent is unreasonably refused.

In addition, there is the meaning of the statute as gathered from a study of the enactment as a whole. The structure of the statute indicates a legislative intent that the Public Service Commission should not, except, perhaps, in a case of extreme hardship not here passed upon, balance public convenience and necessity over against valid reasons of a village for its refusal. Used in its accustomed sense, ordinarily a determination of public convenience and necessity involves only the question whether the granting of the • additional franchise sought will create ruinous competition and public inconvenience. (See People ex rel. N. Y. C. & H. R. R. R. Co. v. Public Service Com., 195 N. Y. 157,166.) On the other hand, a determination of the issue of unreasonableness of a refusal by the village may embrace many different issues having nothing to do with competition and public convenience. By the wording of the statute, the issue of convenience and necessity and the issue of the unreasonableness of the refusal by the village are separated and submitted in accordance with the statute for separate determination by the Public Service Commission, as appears in section 63-e, subdivision 1, which provides: “ the commission shall have power to issue a certificate of public convenience and necessity * * * without the consent of local authorities * * * if such consent is unreasonably refused * * *Subdivision 3 then goes on to provide that the local authorities shall file with the Commission “ a certified statement setting forth the reasons for not granting such consent * * * and that the Commission shall consider such reasons in its determination of whether the local consent was unreasonably refused * * •*,” and that if such local authorities do not file such statement, thereafter they may not question such determination of the commission.” Thus the statute declares in substance that the Commission may grant a certificate of public convenience and necessity without requiring the consent of the local authorities, if a determination is made, after due consideration of the reasons advanced by the local authorities for their refusal, that the consent was unreasonably refused. This wording of the statute commands the Public Service Commission to place itself in the situation of the village when it determined the issue of whether the reasons given were unreasonable. When the Commission has thus placed itself in the situation of the village in determining the validity of the reasons given it must consider whether the consent was refused unreasonably from the standpoint of the constituents of the trustees of the village. It is always the duty of local legislative bodies to consider the interest of their constituents. The interest of others are protected by other local authorities and by the State. There may be instances where the trustees of the village, in acting for the best interests of their constituents, may consider the interests of a larger public. We are not passing upon a case where the interest of a larger public heavily outweighs the interest of the inhabitants of the village.

This construction of the statute is also fortified by a consideration of what the Legislature should have said if it had intended to grant the power to the Public Service Commission to overrule the wishes of the towns and villages of this State in connection with the use of their highways by omnibuses whenever the Public Service Commission determined that the interest of the traveling public was sufficient to override the wishes of the villages and towns and grant franchises for the use of their streets. If such was the intention of the Legislature would it not have said that the Commission could issue certificates of convenience and necessity in spite of the refusal of the trustees of the village? Or would it not have said that, in considering whether the refusal of the local authorities was unreasonable, the Public Service Commission could take into account public convenience and necessity? The Legislature^ however, did none of these things, but instead directed the Public Service Commission to pass separately upon the issue of the unreasonableness of the refusal of the village viewed from the standpoint of local authorities of the towns and villages. Thus, no jurisdiction was given to the Public Service Commission to grant a certificate of convenience and necessity unless the refusal of the local authorities was unreasonable from the standpoint of their own constituents as represented by them.

Furthermore, in using the word “ unreasonable,” the Legislature has chosen a word of art well known to the law. For a long time the courts have been applying a test of unreasonableness to the legislative acts of municipalities. (Village of Carthage v. Frederick, 122 N. Y. 268; Kruse v. Johnson, [1898] 2 Q. B. D. 91, 99.) Municipal authorities act with respect to a franchise in a legislative capacity. (Kittinger v. Buffalo Traction Co., 160 N. Y. 377.) In dealing with such legislative acts as the refusal of the franchise in the case at bar, judicial authorities consider such acts reasonable or unreasonable from the standpoint of the local governmental subdivision for which the local legislative body assumes to act. (Mayor v. Dry Dock, E.B.& B. R. R. Co., 133 N. Y. 104.) As applied to the case at bar this means that the refusal shall be considered reasonable if there is any evidence to sustain the conclusion that the granting of the franchise would produce injury to the village.

In addition, in support of our interpretation of what the Legislature intended by the statutes in question, there appears no general legislative recognition of an interest in the traveling public paramount, as against the interest of a municipality. Certainly the prohibition incorporated into the Constitution of the State which prohibits the Legislature from adopting any law authorizing the construction of a street railway without the consent of the local authorities having control of the street (Const. art. III, § 17), looks, if anything, the other way. Thus, the village of Bronxville might, for no reason, exclude inter-municipal trolley lines and in so doing would be protected by the Constitution. So, too, under this very section of the Public Service Law which we are considering here, namely, section 63-e, a refusal of a permit for an omnibus by a city for the use of its streets, even if capricious and unreasonable, may not be set aside by the Public Service Commission. (See Kittinger v. Buffalo Traction Co., supra.) These considerations tend to confirm the construction of the statutes at which we have arrived.

We are thus brought to a consideration of the reasons given by the village of Bronxville for its refusal to consent to the projected route. Such reasons were of five classes: (1) the resulting deterioration to the character of the village and the depreciation of realty values; (2) congestion of vehicular traffic; (3) increased vehicular traffic danger; (4) conflict' with the regional plan proposals for the development of cross county traffic; and (5) that there was no substantial service of public convenience and necessity. A consideration of the first three will be sufficient to show that the refusal was far from arbitrary or capricious.

The evidence adduced before the Public Service Commission shows Bronxville as a community where a majority of the inhabitants work in New York city. Commuting from residence to business office requires approximately two hours a day. This daily travel is undertaken in the vast majority of cases to enjoy in so far as possible, the surroundings of the country within convenient reach of a large city. The opposition of the village to the proposed omnibus route is occasioned principally by a sincere desire on the part of a large majority of the inhabitants and those dependent upon them for a living to have the village retain, so far as possible, its quasi-rural character. In so urging the village is backed up by its Chamber of Commerce and a large majority of its inhabitants. The operation of at least eight buses an hour over an already crowded main street, and the only through east and west street at the village center, and then on through a narrow winding road in the residential section, will tend materially to destroy the peace and quiet of the village and render it less desirable to the present type of inhabitant. All those influences which produce urbanization will be accelerated. Certainly those persons residing upon or near the road upon which the omnibuses travel must lose more peace and quiet. The lives of the children of all residents, on their way to the village school, located on Pondfield road, and while at play, are subjected to increased hazard. Traffic at the shopping and commuting center necessarily becomes more congested. Persons driving cars must compete on a narrow road with omnibuses weighing several tons. An effective blow is struck at realty values of all residences, and particularly those now in that large section of the road given over exclusively to such residences. No one can read the hearings before the Public Service Commission and doubt the sincerity of the great majority of objections urged by residents of the village. It may be noted also that the absence of this particular bus service does not create an intolerable situation for the traveling public, since some form of public transportation is reasonably available. It is true that the proposed route may convenience, from a transportation standpoint, some persons living both within and without the village; but, as already noted, such a fact may not be permitted to outweigh a refusal of the village authorities based upon valid local grounds.

In the light of the above reasons the action of the village authorities was far from capricious and unreasonable.

The order of the Appellate Division should be reversed and the determination of the Public Service Commission, dated October 18, 1938, granting an amendment to a certificate of public convenience and necessity, should be annulled, without costs.

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

Ordered accordingly.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    McGarry Contracting Co., Inc., Appellant, v. Board of Education of the City of New York, Respondent.
    Argued October 10, 1940;
    decided November 19, 1940.

      Frank Weinstein and Samuel J. Levinson for appellant.

      William C. Chanler, Corporation Counsel (Alvin Mc Kinley Sylvester and Nelson Rosenbaum of counsel), for respondent.
   Per Curiam.

The provisions of paragraph 4 (d) of the specifications, as we read them, do not unambiguously cover the plaintiff’s claim for the cost of removal of the old foundation walls. The existence of the old walls in the subjacent land was not a difference in the character of earth to be excavated ” and it was to such differences in subsoil conditions ” that paragraph 4 (d) was addressed. Nor is it clear enough to us that the old walls were “ obstacles to the securing of a good, solid foundation ” in the sense of paragraph 45 (a) of the specifications.

Moreover, article XXX of the contract provides that the reasonable value of extra work required by changes in the plans and specifications is to be added to the contract price. This provision of the contract was made inapplicable to excavation work when it was held below that the removal of the old walls was covered by the specifications above referred to. We cannot adopt that view. If there is any conflict between the provisions of the contract and those of the specifications, the former should be applied. (Dean v. Mayor, 167 N. Y. 13, 17.) We pass upon no other question.

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

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

Judgments reversed, etc.


author: Rippey, J.

text:
    Amiesite Construction Corporation, Appellant, v. Luciano Contracting & Building Co., Inc., et al., Defendants, and Hanibal M. Fiobe, Respondent.
    Argued October 1, 1940;
    decided November 19, 1940.

      James H. Cavanaugh and Joseph H. Konrad for appellant.

      Sydney A. Syme and Edward M. Acton for respondent.
   Rippey, J.

The Luciano Contracting & Building Co., Inc., entered into a written contract with the State of New York, Department of Public Works, Division of Highways, on July 22, 1938, for the improvement of a public highway in Westchester county, entitled “ Reconstruction of the Mamaroneck, White Plains State Highway No. 19, known as RC No. 2536.” The improvement was completed and accepted by the State on November 30, 1938. At the time of the commencement of this action there was a balance due and unpaid to the contractor in the amount of $4,802.90. Those moneys were not in the hands of the contractor. Neither were they set aside and appropriated to the contract by the State.

The Amiesite Construction Corporation, by two contracts dated July 11,1938, and August 17,1938, respectively, agreed to furnish the labor, material and equipment to complete that part of the improvement contract relating to bituminous macadam at prices therein mentioned. No time for payment was specified. As the work progressed the bituminous material was furnished and laid as required. As of November 30, 1938, there was due and owing to the Amiesite Corporation $7,083.52. That corporation, appellant herein, has been awarded a money judgment against the general contractor for the foregoing amount, with interest from November 30, 1938, but has been denied a lien under section 5 of the Lien Law (Cons. Laws, ch. 33) upon, or preferential right under section 25 of the Lien Law to payment of, the unpaid amount due to the contractor. The time within which notices of hen might be filed expired on December 30, 1938, thirty days after the contract was completed (Lien Law, § 12). No notice of hen was filed at any time by the Amiesite Corporation.

On April 1, 1939, the plaintiff was notified by defendant Fiore that he held a written assignment, dated September 3,1938, from the contractor of all moneys due and to become due from the State under the aforesaid contract and that he claimed the entire balance due, whereupon this action was commenced. The assignment was executed and dehvered in consideration of moneys to be advanced to the contractor to be used by the latter in the performance of its contract with the State. Thereafter Fiore advanced to the contractor for that purpose before the contract was completed and on the security of the assignment $14,475, of which $8,143.70 was unpaid at the time the action was commenced. The assignment was filed with the Comptroller of the State on April 6, 1939.

The action is not one under the Lien Law to foreclose a lien and to establish the priority of plaintiff as a lienor. No such action would lie since plaintiff failed to comply with the provisions of the Lien Law requiring filing of a notice of lien. The obligation of the contractor to plaintiff was on an open account. Plaintiff was neither a judgment creditor nor an attaching creditor. Plaintiff alleges that the written assignment to Fiore was invalid under the Lien Law as against its claim since the assignment omitted the covenant required by section 25 (subd. 5) and was not filed within the time required by section 16, and that, consequently, it must be given preference in the distribution of the balance due from the State under section 25 (subd. 6) on the theory that the balance unpaid constitutes a trust fund in the hands of the State exclusively for the benefit of laborers and materialmen and others specified therein as against such an assignment. We agree with the lower courts that plaintiff cannot maintain its claim.

Section 25 of the Lien Law, by its express terms, provides the order for priority of liens and assignments and preferences to funds in the hands of the contractor under contracts for public improvements only in actions to enforce a hen. Subdivision (5) of that section provides that every assignment of moneys, or any part thereof, due or to become due under a contract for a public improvement shall contain a covenant by the assignor that he will receive any moneys advanced thereunder by the assignee as a trust fund to be first applied to the payment of claims of subcontractors, architects, engineers, surveyors, laborers and materialmen arising out of the improvement * * * and that he will apply the same to such payments only, before using any part of the advances for any other purpose.” Subdivision (6) declares such advances trust funds in the hands of the contractors for the benefit of the persons mentioned in the previous subsection (5) and makes application of those funds by the contractor for any other purpose, as does section 25-a, a felony. But those provisions of subdivision (5), by the express terms of the section, impose upon the assignee no “ obligation to see the proper application of the moneys advanced under such assignment by the assignee.”

Those provisions are for the protection of the persons mentioned in section 25 and in aid of recovery by those entitled to priority or preference in distribution in an action to foreclose a lien. The assignment to Fiore did not contain the covenant specified in section 25 (subd. 5) nor was it filed within the time required by section 16. In an action to foreclose a lien, the failure of Fiore to file his assignment within the time required in section 16 and the omission of the covenant specified in section 25 (subd. 5) would render the assignment ineffective as against those and those only who were entitled to invoke priority or preferential payment under section 25 of the Lien Law (Edison Electric Illuminating Co. v. Frick Co., 221 N. Y. 1, 8; Williams E. & C. Co. v. City of New York, 222 N. Y. 1, 3; Albany B. S. Co. v. Eastern B. & S. Co., 235 N. Y. 432, 436). However infirm the failure of Fiore to file the assignment or the omission of the covenant might render the assignment for the purpose of one who is entitled to enforce a lien under section 25, the plaintiff is not a lienor and obtains no benefit from those infirmities in prosecuting its claim (Mack v. Colleran, 136 N. Y. 617; McCorkle v. Herman, 117 N. Y. 297; Edison Electric Illuminating Co. v. Frick Co., supra). Nothing contained in the Lien Law nor in the legislative proceedings preceding the enactment by the Legislature of subdivisions (5) and (6) of section 25 (Laws of 1930, ch. 859, § 15, amending Laws of 1929, ch. 515, derived from Laws of 1898, ch. 169) indicate that subdivisions (5) and (6) are intended to be considered or given effect without regard to the other provisions of section 25 of which they are a part or without regard to other pertinent provisions of the Lien Law.

No attack has been directed against the assignment except on the specific grounds that it was void as against appellant because (1) it was not filed as required by section 16 of the Lien Law, and (2) it did not contain the covenant required by section 25 (subd. 5). In spite of the failure of Fiore to file his assignment and the omission of the clause required by section 25 (subd. 5) of the Lien Law, it was, however, not void under the circumstances of this case. It was a valid common-law assignment and, as such, it gave Fiore preference over the plaintiff in the distribution of the unpaid balance due to the contractor upon completion of the improvement contract since the plaintiff had neither a prior nor subsequent valid hen (Bates v. Salt Springs Nat. Bank, 157 N. Y. 322, 327; Edison Electric Illuminating Co. v. Frick Co., supra; Albany B. S. Co. v. Eastern B. & S. Co., supra; Arrow Iron Works, Inc., v. Greene, 260 N. Y. 330; Lee v. Bailey Corporation, 267 N. Y. 161).

The judgment appealed from should be affirmed, with costs.

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

Judgment affirmed.


author: Conway, J.

text:
    In the Matter of Leslie D. Begent, Doing Business as Begeacres Farm, Respondent, against Holton V. Noyes, as Commissioner of Agriculture and Markets of the State of New York, Appellant.
    Argued October 7, 1940;
    decided November 19, 1940.

      Robert G. Blabey and Milo R. Kniffen for appellant.

      Henry S. Manley for respondent.
   Conway, J.

In August, 1939, after hearings held, a license to sell milk at wholesale and retail in the city of Ithaca was issued to petitioner by the Commissioner of Agriculture and Markets. Thereafter a proceeding was brought under article 78 of the Civil Practice Act to review the decision of the Commissioner refusing to modify the limitations or conditions contained in the license. The Appellate Division, by a divided court, has annulled such decision and determination on the law and facts and reversed certain findings of fact. Although nothing further is said in the order as to what shall now occur, it is clear that there is here a remission to the Commissioner for further proceedings, including a further or new hearing on the merits and a determination by him as to limitations or conditions, if any, to be attached to the licensing of petitioner. The order of the Appellate Division is, therefore, not a final one.

The appeal should be dismissed, with costs.

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

Appeal dismissed.


text:
    In the Matter of Leonard DeMartino, Respondent, against Carroll Mealey, as Commissioner of Motor Vehicles of the State of New York, Appellant.
    Argued September 30, 1940;
    decided November 19, 1940.

      John J. Bennett, Jr., Attorney-General (Irving H. Lessen of counsel), for appellant.

      Frank Del Vecchio for respondent.
   Conway, J.

There is presented for consideration the applicability of the provisions of section 335-a of the Code of Criminal Procedure to a charge of violation of a village ordinance limiting the speed of motor vehicles. The respondent when arraigned was informed by the police justice that he was entitled to counsel, trial or adjournment, or that he could plead guilty; that if he pleaded guilty the only penalty would be a small fine. He was not informed that a plea of guilt might result in the suspension or revocation of his license. Petitioner pleaded guilty and paid a fine of three dollars. Within the prior eighteen months he had had three other convictions for speeding,” two in this State and one in Pennsylvania. After his plea of guilt, the police justice made a notation of the conviction on the license and noticed the previous convictions in this State. He did not retain the license but advised petitioner to watch out since if he were convicted too many times for speeding he might lose his license.

On the following day the police justice filled out the usual certificate concerning violations of law relating to motor vehicles and forwarded it to the Bureau of Motor Vehicles in. Albany, where subsequently an order of revocation of license was made. Thereafter this proceeding was commenced to annul that order.

It is conceded that the police justice failed to comply with section 335-a of the Code of Criminal Procedure but it is urged that the requirements of that section apply only to violations of the Vehicle and Traffic Law (Cons. Laws, ch. 71) and not to those of a village ordinance. Considering the section alone, that would appear to be true.

Section 335-a is as follows: “Provisions applicable to pleas of guilty for violations of vehicle and traffic law. The magistrate, after the arrest of a person charged with a violation of the vehicle and traffic law, and before accepting a plea of guilty or entering a judgment of conviction pursuant thereto, must inform the defendant that upon conviction, not only will he be liable to a penalty, but that, in addition, his license to drive a motor vehicle or motor cycle, or in the case of an owner, the certificate of registration of his motor vehicle or motor cycle, may be suspended or revoked.”

However, section 71, subdivision 2, of the Vehicle and Traffic Law provides: “Mandatory suspensions and revocations. Such licenses must be revoked and such certificates of registration may also be revoked where the holder is convicted * * * (c) of a third or subsequent violation, committed within a period of eighteen months, of any provision of section fifty-six of this chapter or any other ordinance or regulation limiting the speed of motor vehicles and motor cycles.”

The section just quoted is referred to in section 71-a of the Vehicle and Traffic Law as follows: “Surrender of license where revocation is mandatory. Upon the conviction of a person for an offense under this article with respect to which the revocation of his license to operate a motor vehicle or motor cycle is mandatory, as provided in subdivision two of section seventy-one of this article, the magistrate, justice or judge before whom the conviction is had, whether or not such officer has power under this article to revoke such a license, must require such convicted person to surrender Ms license at the time judgment on such conviction is pronounced and forthwith transmit the same to the commissioner, who, if the license has not already been revoked, must make and enter an order revoking such license witMn ten days after the receipt of the license.”

True it is that section 335-a of the Code of Criminal Procedure speaks of violations of the Vehicle and Traffic Law, but it is also clear that section 71-a of the Vehicle and Traffic Law draws witMn the orbit of section 335-a the offense with wMch petitioner was charged, at least for the regulatory purposes of sections 71 and 71-a. Section 71-a speaks of an offense under this article with respect to which the revocation of his license to operate a motor veMcle or motor cycle is mandatory, as provided in subdivision two of section seventy-one of this article * * *.” Section 71, subdivision 2, lists the offenses for wMch mandatory revocation is provided. Included among such offenses is (c) of a tMrd or subsequent violation, committed within a period of eighteen months, of any provision of section fifty-six of this chapter or any other ordinance or regulation limiting the speed of motor veMcles and motor cycles.” Thus such third violation is one of the offenses under the article as provided in subdivision two of section seventy-one as set forth in section 71-a.

The order should be affirmed, with costs, because of the failure of the police justice to comply with the provisions of section 335-a of the Code of Criminal Procedure.

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

Order affirmed.


text:
    The People of the State of New York, Appellant, v. Leo Phillips, Respondent.
    Argued October 17, 1940;
    decided November 19, 1940.

      Samuel J. Foley, District Attorney (Sol Boneparth and Herman J. Fliederblum of counsel), for appellant.

      Max Fruchtman and Macy Halpert for respondent.
   Conway, J.

There is presented the question whether a peace officer may summarily arrest one who is a disorderly person within the provisions of Code of Criminal Procedure, section 899, subdivision 5, or must first obtain a warrant of arrest issuable under Code Criminal Procedure, section 900.

Section 899, subdivision 5, is as follows: “ § 899. The following are disorderly persons: * * *

“ 5. Persons who' have no visible profession or calling, by which to maintain themselves, but who do so, for the most part, by gaming;”

Section 900 reads: “ Upon complaint on oath, to a justice of the peace or police justice of a city, village or town, or to the mayor, recorder, city judge or judge of the general sessions of a city, against a person, as being disorderly, the magistrate must issue a warrant, signed by him, with his name of office, requiring a peace officer to arrest the defendant and bring him before the magistrate for examination.”

The right of a peace officer at common law to arrest summarily was a limited one. “ The common law did not authorize the arrest of persons guilty or suspected of misdemeanors, except in cases of an actual breach of the peace either by an affray or by violence to an individual. In such cases the arrest had to be made not so much for the purpose of bringing the offender to justice as in order to preserve the peace, and the right to arrest was accordingly limited to cases in which the person to be arrested was taken in the fact or immediately after its commission.” (Stephen’s History of the Criminal Law of England, p. 193; Chase’s Blackstone [4th ed.], pp. 998, 999; 6 C. J. S. Arrest, § 6, subd. c.)

Thus this common-law limitation continued and was unaffected by the ancient statute 34 Edward III, ch. 1, under which the justices were empowered to bind over to good behavior “ all them that be not of good fame wherever they be found,” and although under those general words, “ that be not of good fame,” it was held that one might be bound to his good behavior for causes of scandal, contra bonos mores, as well as contra pacem. “ Thus also a justice may bind over all night walkers, eaves-droppers; such as keep suspicious company, or are reported to be pilferers or robbers; such as sleep in the day, and wake in the night; common drunkards; whoremasters; the putative fathers of bastards; cheats; idle vagabonds; and other persons whose misbehavior may reasonably bring them within the general words of the statute, as persons not of good fame: an expression, it must be owned, of so great a latitude, as leaves much to be determined by the discretion of the magistrate himself. * * (Chase’s Blackstone [4th ed.], p. 983.)

In view of this limitation at common law we now consider what constitutes the offense of breach of the peace under the authorities in this State, bearing in mind that the acts referred to in the Code of Criminal Procedure, section 899, are offenses and not crimes. (People ex rel. Burke v. Fox, 205 N. Y. 490; People v. Erickson, 283 N. Y. 210.)

A breach of the peace has been defined as: “ A disturbance of public order by an act of violence, or by any act likely to produce violence, or which, by causing consternation and alarm, disturbs the peace and quiet of the community.” (People v. Most, 171 N. Y. 423, 429; People v. Perry, 265 N. Y. 362; People v. Pieri, 269 N. Y. 315.)

It is true that there are persons classified in section 899 whose activities may constitute a breach of the peace. In such instances there may be summary arrest by a peace officer but such power to arrest summarily flows from the acts constituting breaches of the peace and not by reason of the inclusion of such persons among the classes enumerated in section 899. Thus, for instance, in People v. Iverson (46 App. Div. 301) the accused was arrested without a warrant “ during' a fight which occurred in his establishment in the City of Poughkeepsie ” and was charged with violation of the Code of Criminal Procedure, section 899, subdivision 4.

The offense committed by the respondent is that he had no visible profession or calling by which to maintain himself, but did so for the most part by gaming. This did not constitute a breach of the peace within the meaning of the authorities cited supra. It was, therefore, incumbent upon the police officer, since summary proceedings of this nature before the magistrate are in derogation of the common law (Chase’s Blackstone [4th ed.], pp. 991, 992), to obtain a warrant of arrest upon complaint on oath and since the procedure for bringing such an offender before the magistrate was prescribed solely by statute, no jurisdiction could be obtained by the magistrate except by the process prescribed. •

The judgment should be affirmed.

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

Judgment affirmed.


author: Lehman, Ch. J.

text:
    The People of the State of New York, Respondent, v. Luke G. Lynch, Jr., Appellant.
    Argued October 8, 1940;
    decided November 19, 1940.

      James G. Blake and George E. Mulry for appellant.

      Charles P. Sullivan, District Attorney (Edmund C. Rowan of counsel), for respondent.
   Lehman, Ch. J.

A jury has found the defendant guilty of grand larceny in the first degree. The Appellate Division affirmed the conviction under the provisions of section 542 of the Code of Criminal Procedure, which commands an appellate court to “ give judgment, without regard to technical errors or defects or to exceptions which do not affect the substantial rights of the parties.” The problem presented to this court is whether any erroneous ruling by the trial judge on a question of law affects the defendant’s substantial rights.

At the close of the charge counsel for the defendant asked the court "to charge the jury that there are two verdicts only in New York State; either this defendant is guilty of the crime charged or he is not guilty; that there is no such verdict as guilty with a recommendation of mercy.” Then followed the following colloquy: The Court: “ There is no legal verdict. But the form of the verdict is for the Jury to render; the Jury can render a verdict with a recommendation for mercy, if they so find; what you are thinking about, what you have in mind is the amendment of 1936 in felony murders where a man is murdered during the commission of a felony, while committing a crime, while armed. In such a case the Jury instead of saying guilty of the crime charged from which the death penalty will follow may recommend mercy which carries life imprisonment. But, Gentlemen, you may adopt your own form of verdict.”

Counsel: I take an exception. I ask your Honor to charge the Jury that if a verdict of guilty were brought in with a recommendation for clemency it would have no legal basis.”

The Court: It has no legal basis. But an intelligent Judge usually likes to follow the Jury’s findings; I do; I don’t know it all; and I hope I never get so dumb as to think that I know it all. If a Jury recommends mercy I always regard the advice of very intelligent people in my life.”

A request of the counsel for the defendant that the jury be instructed that no legal sanction gives force to a jury’s recommendation of mercy and that such recommendation has no legal effect is neither improper nor indiscreet. The verdict of a jury should be the result of careful consideration of the evidence by a jury which recognizes that the law places upon it a very grave responsibility which it cannot shift to the judge or share with him. An accused has a right to ask of the court clear instruction to a jury of the extent of its powers and that the common popular impression that a jury may recommend mercy and thereby perhaps minimize and soften the penalty which the judge would otherwise impose ” is not based on any provision of law. (People v. Sherwood, 271 N. Y. 427, 434, and cases there cited.)

The trial judge’s statement that a recommendation for clemency is no legal verdict ” and that it “ has no legal basis ” might have been sufficient instruction for that purpose, but unfortunately the trial judge did not stop there. In effect he told the jury that if the jury should recommend mercy he would probably follow the advice of the jury. That was an assurance that a recommendation of mercy would soften the penalty which the judge would otherwise impose.”

The record sustains, if indeed it does not dictate, an inference that the erroneous statement of the trial judge may have induced at least some members of the jury to bring in a verdict of guilty in the belief that it would not carry serious consequences and thus it has prejudiced the substantial rights of the defendant. It appears that the jury, after many hours of consultation, reported late at night that. it was unable to agree. It was sent out for further conference and at half-past five in the morning it brought in a verdict of “ guilty with a recommendation of clemency.” Under these circumstances we cannot disregard the error.

The judgments should be reversed and a new trial ordered.

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

Judgments reversed, etc.


text:
    The People of the State of New York, Appellant, v. Chester Rytel, Respondent.

      Argued October 9, 1940;
    decided November 19, 1940.

      Charles S. Tracy, District Attorney (Milburn D. Smith of counsel), for appellant.

      Samuel Levy for respondent.
   Lehman, Ch. J.

The defendant was convicted upon a charge of assault in the second degree and received an indeterminate sentence of not less than two years and not more than four years in a State prison. Upon appeal to the Appellate Division the judgment was “ modified ” by a closely divided court “to a conviction of assault in the third degree”; the sentence was reduced to the time already served by the defendant, and the defendant was discharged. One of the dissenting justices of the Appellate Division granted permission to the People to appeal to this court from the judgment of the Appellate Division.

The defendant, a young man twenty-four years of age, works on his father’s dairy farm. On the morning of September 23, 1938, he was operating a small truck used for delivery of milk. The witnesses for the People testified that he drove the truck into the rear of an automobile occupied by Bernard Willoughby and two companions, and that when Willoughby sought to obtain his name and address he struck Willoughby on the head with a club, knocking him down and causing painful injuries. The defendant, also, testified that he struck Willoughby over the head with a heavy stick which he carried in the truck, but he_denies that he had previously driven his truck into the rear of Willoughby’s car or that the attack was unprovoked. His story is that Willoughby and his two companions blocked the road, compelling him to stop, demanded money of him, and threatened to shoot him. He claims that he believed that these men were attempting to “ hold him up ” and that he was justified in striking Willoughby over the head in self defense.

A person who * * * (3) wilfully and wrongfully wounds or inflicts grievous bodily harm upon another, either with or without a weapon; or (4) wilfully and wrongfully assaults another by the use of a weapon, or other instrument or thing likely to produce grievous bodily harm * * * is guilty of assault in the second degree.” (Penal Law, § 242.) The witnesses for the People and the witnesses for the defense give conflicting testimony in regard to the events which preceded the blows struck by the defendant; and the testimony of the witnesses for the defense would, if believed by the jury, show that the defendant acted in self-defense and was guilty of no crime. The jury rejected that testimony, as it might well do, and found the defendant guilty of assault in the second degree. It is difficult to see how the jury, rejecting the defendant’s claim of self-defense, could reasonably have found the defendant guilty of any lesser degree of assault, for the testimony of the defendant as well as the testimony of the witnesses for the prosecution leaves no reasonable ground for doubt that the club with which the defendant struck Willoughby is “ a weapon, or other instrument or thing likely to produce grievous bodily harm ” or that the defendant used it with intention to inflict such harm.

The powers and duties of appellate courts upon appeals, permitted by the Code of Criminal Procedure, are defined by section 543 of that statute. Subdivision 1 of that section confers upon the Appellate Division pow;er to “ reduce the sentence imposed to a sentence not lighter than the minimum penalty provided by law for the offense of which the defendant or defendants have been convicted.” Subdivision 2 of the same section provides: Upon hearing an appeal from a judgment of conviction of a felony where, in its opinion, the record does not sustain the judgment with respect to the degree of the crime found but does warrant a judgment of conviction of a lesser degree of such crime, or of a misdemeanor, the appellate court may modify and correct the judgment in accordance with its opinion, in whole or in part, and affirm the judgment as so modified and corrected.”

The power of a jury in a criminal case to reject, though unreasonably, evidence which is uncontradicted and unimpeached, and to extend mercy to an accused by finding a lesser degree of crime than is established by the evidence, cannot be challenged in an appellate court, The statute was not intended to confer upon an appellate court a similar arbitrary power. Judicial opinion ” must always be based upon the record and the applicable rules of law, and this court may review a decision of the Appellate Division which modifies a judgment of conviction by reducing the degree of crime; and must determine whether there is any sound foundation for the “ opinion ” that “ the record does not sustain the judgment with respect to the degree of the crime found but does warrant a judgment of conviction of a lesser degree of such crime.” In this case, as we have said, the evidence does sustain the finding of guilt of assault in the second degree and does not, we think, warrant a finding of a lesser degree of assault.

It does not follow, however, that the Appellate Division erred in extending mercy by reducing the sentence. The Legislature has provided that assault ” in the second degree is punishable by imprisonment in a penitentiary or state prison for a term not exceeding five years, or by a fine of not more than one thousand dollars, or both ” (Penal Law, § 243); and that “ assault in the third degree is punishable by imprisonment for not more than one year, or by a fine of not more than five hundred dollars, or both.” (Penal Law, § 245.) Within the limits fixed by statute, the Appellate Division has plenary discretion as to the punishment which should be meted out and the exercise of that discretion is not subject to review by this court. (People v. Speiser, 277 N. Y. 342.) The sentence as reduced by the Appellate Division does not transcend the limits fixed by the statute for the punishment that may be meted out either for an assault in the second degree or in the third degree.

Because assault in the second degree may be “ punishable ” by imprisonment in a State prison, it is a felony (Penal Law, § 2; People v. Stacy, 119 App. Div. 743; affd., 192 N. Y. 577), though under the express terms of the statute the offense may also be punishable by imprisonment in a penitentiary. Because assault in the third degree is not punishable by imprisonment in a State prison it is not a felony but a misdemeanor. (People ex rel. Devoe v. Kelly, 97 N. Y. 212.) A person guilty of assault in the third degree is not subject to punishment as severe as may be meted out to a person guilty of assault in a higher degree, for the Legislature has placed different limits upon the terms of imprisonment to which offenders may be sentenced upon conviction of assault in different degrees, and the courts may not exceed those limits. The courts are left free to sentence offenders to any lesser term of imprisonment which they think the offender merits for his offense. There, the circumstances which vary with each crime and mitigate or aggravate the wrong, rather than a rigid classification of the crime, may determine the punishment.

We do not say that the classification of the crime may not often be an important factor in the determination of the sentence, or that where this court finds error in the classification of the crime it should not at most times remit the case to the Appellate Division for a reconsideration of the appropriate sentence. Here, however, the statute expressly provides that even assault in the second degree may be punished by imprisonment in a penitentiary, and the record leaves no room for doubt that the court measured the sentence by the quality of the act and not by its classification.

The judgment of the Appellate Division should be modified by reinstating the conviction of assault in the second degree and as so modified affirmed.

Loughran, Finch, Rippey, Lewis and Conway, JJ., concur; Sears, J., votes to remit the matter to the Appellate Division to reconsider the sentence.

Judgment accordingly.


text:
    In the Matter of Michael W. Wipfler, Respondent, against Ralph D. Klebes, as City Manager of the City of Elmira, et al., Appellants.

      Argued September 30, 1940;
    decided November 19, 1940.

      George H. Winner, Corporation Counsel, for appellants.

      Harry Moseson for respondent.
   Lehman, Ch. J.

The position of City Engineer of the City of Elmira was transferred from the non-competitive class to the competitive class by resolution of the Civil Service Commission of the city, approved by the State Civil Service Commission in January, 1928. The petitioner Michael W. Wipfler, who had entered the engineering department of the city in 1902, was appointed City Engineer on March 5, 1928, after passing a competitive examination. He performed the duties attached to the position until May 9, 1935, when he received injuries which disabled him temporarily. In July, 1935, he applied to the Comptroller of the State “ for accidental disability retirement on account of an accident sustained on May 9, 1935, while in the performance of duty.” Pending determination of his application for “ accidental ” disability retirement, he filed in March, 1936, an application, to become effective on March 20, 1936, for retirement on an ordinary disability retirement allowance. Accordingly on March 26, 1936, the Comptroller sent to the Department of Public Works of the City of Elmira formal notice that the application had been filed, and he advised the Department that the applicant’s name should not appear on the payroll after March 19, 1936.”

On May 1,1936, the petitioner wrote to the City Manager of Elmira that my improvement has continued to a point where I now feel able physically and mentally to resume the duties of City Engineer of the City of Elmira,” and he added that, since section 66 of the Civil Service Law (Cons. Laws, ch. 7) makes provision for restoration to active service ” where the medical board certifies that a disability beneficiary is able to engage in gainful occupation,” unless you offer some valid legal objection, I shall report for work some time between now and June 1, 1936.”

Three days later the Council of the City of Elmira adopted an ordinance which provided:

Section 1. That in addition to the powers conferred upon and the duties imposed upon the City Manager of the City of Elmira by law, all the powers and duties heretofore conferred and imposed upon the City Engineer are hereby conferred and imposed upon the City Manager.

“ Section 2. That the office of City Engineer be and hereby is abolished.”

On July 18, 1936, the Comptroller notified the appropriate authorities of the city that the Medical Board of the Retirement System has certified to the Comptroller that M. W. Wipfler is able to return to duty ” and that Mr. Wipfler desires his name placed on a preferred eligible fist relative to employment.” After the petitioner received a letter from the City Manager, stating in effect that it was unnecessary to appoint any person to the position of City Engineer, which the petitioner had held until his retirement, or the position of Assistant Engineer, from which the incumbent had retired in March of that year, the petitioner began this proceeding asking for an order requiring the city of Elmira to reinstate him in the position which he was entitled to occupy or to appoint him to a similar position. He claims that the ordinance which purported to abolish his position was not adopted in good faith ” and is void, and that other persons, not appointed in accordance with the Civil Service Law, are performing duties substantially similar to those which he performed in the position of City Engineer to which he was appointed after a competitive civil service examination.

The justice at Special Term found that the position to which the petitioner had been appointed was abolished in good faith and that it incontrovertibly appears that there is neither work for him to do nor is there money with which to pay him” (Italics in the decision.) (164 Misc. Rep. 220, 226.) The order denying the application and dismissing the petition was reversed by the Appellate Division on the law and the facts.” In its opinion the court said: A civil service employee may not be removed through abolition of his position, when the lack of good faith is obvious, or be denied reinstatement where the work which he formerly did is now being done by another person or persons having no Civil Service standing.” (260 App. Div. 228,230.)

The City Council has power under the Charter (L. 1906, ch. 477, as amd.) and general laws to abolish or to create, by ordinance, positions in the civil service of the city, and to refuse to appropriate moneys for payment of the salary attached to a position so abolished, though the power is not entirely unrestricted. The Council is charged with responsibility for securing an efficient and economical administration of the city government, and except as its powers are limited by the Constitution of the State, the Civil Service Law or other statutes, discretion is vested in it to determine what services shall be performed for the city, who shall perform them and what compensation shall be paid for such services. So long as the Council does not transcend the limits of the powers conferred upon it, no court may substitute its judgment for the judgment of the Council in such matters. The serious question which we must determine upon this appeal is whether the Constitution of the State or the provisions of the Civil Service Law prohibited the Council from abolishing the position of City Engineer which was in the competitive class and from transferring the powers and duties of that position to an officer not appointed in accordance with the provision of the Civil Service Law, and whether the petitioner has rights under the Constitution of the State and under the Civil Service Law which have been violated by the city.

No statute or ordinance is valid which flouts the mandate of the Constitution that appointments and promotions in the civil service of the state, and of all the civil divisions thereof, including cities and villages, shall be made according to merit and fitness to be ascertained, so far as practicable, by examinations, which, so far as practicable, shall be competitive.” The same section commands the Legislature that “ Laws shall be made to provide for the enforcement of this section.” (Art. V, § 6.) The Civil Service Law constitutes the provision made by the Legislature for the enforcement of this section ” in accordance with the injunction placed upon it. No appointment is valid, though apparently authorized by statute, if the statute is passed in violation of the Constitution; and no appointment is valid, though apparently authorized by an ordinance, if the ordinance & passed in violation of the provisions of the Civil Service Law.

This court said, soon after the mandate was placed in the Constitution, that The principle that all appointments in the civil service must be made according to merit and fitness, to be ascertained by competitive examinations, is expressed in such broad, and imperative language that in some respects it must be regarded as beyond the control of the Legislature, and secure from any mere statutory changes. If the Legislature should repeal all the statutes and regulations on the subject of appointments in the civil service the mandate of the Constitution would still remain, and would so far execute itself as to require the courts, in a proper case, to pronounce appointments made without compliance with its requirements illegal.” (People ex rel. McClelland v. Robert, 148 N. Y. 360, 366.) The principle embodied in the mandate doubtless was to give at least something like permanency of tenure to appointees in the civil service, and above all to put an end to the vicious practice which had grown up of changing employees whenever the appointing power was changed without any cause except the unrestrained will of the person who happened for the time being to be at the head of the department.” (Matter of Seeley v. Stevens, 190 N. Y. 158, 163.)

That does not mean that a person appointed in accordance with the provisions of the Civil Service Law after passing a competitive examination has such “ permanency of tenure ” that the position must be continued and appropriation made for the payment of the salary originally attached to the position even though those vested with authority to create or abolish positions and to adopt a budget decide that no person should be employed to perform the duties of the position and that discontinuance of the position would promote efficiency and economy. (Matter of Devins v. Sayer, 233 N. Y. 690, and cases there cited.) It does mean that there is permanency of tenure so long as some person is employed in the same or similar position under a different title and performs substantially similar services. (People ex rel. Corrigan v. Mayor, 149 N. Y. 215.) It does mean that the form of abolishing the position may not be used to cloak a design to oust from his position a person lawfully appointed and to substitute a person not appointed according to merit and fitness established by competitive examination. “ We have pointed out often that the mandate of the Constitution applies to every position in the civil service of the State and that the Legislature may not disregard, evade or weaken the force of that mandate.’ (Matter of Carow v. Board of Education, 272 N. Y. 341,344.) ” (Palmer v. Board of Education, 276 N. Y. 222,228.) Statutes conferring powers upon local bodies to abolish positions cannot be read or given effect as a grant of power to defeat the mandate of the Constitution and the provisions of the Civil Service Law, enacted for the purpose of enforcing the mandate. The court looks behind the form of the ordinance to determine its intended purpose or effect, and where an ordinance in legal form cloaks an illegal purpose and produces an illegal result the courts have said that the ordinance is not adopted in good faith ” and has no effect.

The burden of showing such lack of good faith,” of course, rests upon the person challenging the validity of an ordinance which in form abolishes a position. (People ex rel. Vineing v. Hayes, 135 App. Div. 19; Matter of Schmidt v. Board of Supervisors, 244 App. Div. 493.) The record in this case justifies, and, perhaps, even dictates the decision of the court at Special Term that the petitioner has failed to sustain that burden. In the year that elapsed before the petitioner demanded that he be restored to active duty and the Council determined to abolish the position he had held, the petitioner performed no services and, though the Assistant Engineer had also retired, the work of the department had proceeded without the appointment of either a City Engineer or an Assistant Engineer. The duties of the position of City Engineer are defined by the~City Charter, section 149. He “ shall * * * perform all the ordinary engineering and surveying services in the affairs and business of the city and to supervise (sic) under the general direction of the board of public works, all the work done for the city in which the skill of his profession may be required or useful. He shall perform such other duties as may be prescribed by the board of public works or by the resolution of the common council.” The Engineering Department of the city performing “ ordinary engineering and surveying services ” was not large and from time to time the city contracted for the services of consulting engineers in connection with specific projects outside of the ordinary recurrent work of the city. There is no contention that in the period from May, 1935, until March, 1936, when the Assistant Engineer retired, any other person was appointed or employed to supervise the work ordinarily done by the city or to perform any “ ordinary engineering and surveying services ” previously performed by the petitioner. In January, 1936, Colus C. Hunter, an engineer by profession, was appointed City Manager. As City Manager he was head of the Board of Public Works and the Engineering Department was under that Board. Prior to his appointment he had been Consulting Engineer not only of the city of Elmira but also of the county of Chemung. In connection with work performed for the county on county projects he had the assistance of Thomas S. Supple, a draftsman on the county payroll, and when Hunter was appointed City Manager, the Council by ordinance created the position of “Engineering Assistant to the City Manager” and Supple, though not an engineer, was appointed to that position without a competitive examination. That was the situation when the Assistant Engineer retired and it remained the situation when the Council abolished the position of City Engineer and conferred upon the City Manager “ all the powers and duties heretofore conferred and imposed upon the City Engineer.”

From the fact that the action of the Council was taken three days after the petitioner had given notice that he would demand restoration to active service, an inference may be drawn that the action of the Council was intended to prepare the way for a refusal of the demand. If the action of the Council was calculated to, or did, also prepare the way for the appointment of some other person in disregard of the Civil Service Law to perform the work previously performed by the petitioner, the court would be bound to refuse effect to such action and declare such appointment void; but, in fact, the work previously per-, formed by the petitioner was then being performed and continued to be performed by persons already on the city’s payroll; and at least while Hunter continued to act as City Manager, no other person was appointed, after the position of City Engineer was abolished, to perform services theretofore performed by the City Engineer. Under these circumstances no inference is possible that the action of the Council was taken with any purpose other than to prepare the way for a refusal to restore to active service a retired employee whose work was no longer needed.

The petitioner relies strongly upon the provisions of section 31-b of the Civil Service Law that “ Any person whose name has been placed on a preferred list since the first day of January, nineteen hundred thirty-four, or hereafter, as provided by section thirty-one of this chapter may maintain a mandamus proceeding for his re-instatement to the position from which he was separated or suspended, where it is shown that another person not appointed in accordance with the provisions of this chapter is employed in the same or a similar position, or assigned to or permitted to perform substantially similar duties or services theretofore performed by any such suspended employee. The fact that a person on ‘ work relief ’ is performing such duties or services, or the failure of the state or any civil division thereof, or city to provide funds for the continuance of the regular position by budget appropriation or otherwise shall not deprive such person on a preferred list of his right to re-instatement as provided herein.” (Added L. 1936, ch. 386, effective May 2, 1936.) From the date of the retirement of the Assistant Engineer and during the period when Hunter was City Manager he and Supple, the Engineering Assistant,” were performing, it is said, the duties and services theretofore performed by the petitioner. In 1937 Hunter was removed as City Manager, and Ralph D. Klebes was appointed in his place. Then, in February, 1937, John L. Herter was engaged as “ Consulting Engineer^” to advise the officers of the city of Elmira on engineering . and surveying problems when and as requested so to do by the City Manager, for a period ending on April 23rd, 1937, unless extended by the Council.” That period had not expired, and he was still acting as Consulting Engineer at the time of the hearing on April 10, 1937, and it is said that he was then a person employed in the same or a similar position, or assigned to or permitted to perform substantially similar duties or services theretofore ' performed ” by the petitioner within the meaning of the quoted section of the Civil Service Law.

The record gives no support to that contention. The transfer to the City Manager, already head of the Board of Public Works, of the powers and duties of the City Engineer, a subordinate of that Board, may have enlarged in some degree the powers and duties of the City Manager; but certainly the position of City Manager did not thereby become the same ” as the position of City Engineer or a similar position. The record makes plain that the City Manager did not himself perform substantially similar duties or services theretofore performed ” by the petitioner; nor did his Engineering Assistant ” nor the “ Consulting Engineer ” who was engaged for a short period. The work of the petitioner was primarily in connection with ordinary public work. The duties and the work of the Engineering Assistant and of the Consulting Engineer were primarily in connection with WPA projects, construction of a sewer and other matters with which the petitioner had been concerned only in slight degree if at all, and the holders of the new positions performed few if any duties or services which the petitioner had previously performed. In no substantial respect are the duties or services so rendered similar, and restoration of the petitioner to the same active service as he had previously performed would not relieve the other named employees of any substantial part of the work or duties that they were doing. These employees may have been appointed without compliance with the provisions of the Civil Service Law, but the petitioner may not complain of that unless they are filling a position to which he is entitled.

In that respect this case is different from Matter of Danker v. Department of Health (266 N. Y. 365) and Matter of Folkes v. Hushion (283 N. Y. 536). Discontinuance of the appropriations for the salaries of the petitioners in those cases was not due to any determination by the appropriating body that the services rendered by the petitioners were unnecessary and should be discontinued, but rather that workers who were not appointed in accordance with the provisions of the Civil Service Law should perform the work previously performed by persons who had been appointed after competitive examination. That is forbidden by the Constitution and by the statute, and the persons who had been separated from the civil service of the municipal corporation were entitled to demand protection from the courts. In this case the petitioner has not been restored to active service because his absence had demonstrated that the work of his department could be conducted without his services.

The order of the Appellate Division should be reversed and that of the Special Term affirmed, without costs.

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

Ordered accordingly.


text:
    Commissioner of Public Welfare of the City of New York, Respondent, v. Herbert Koehleb, Appellant.

      Argued October 15, 1940;
    decided November 19, 1940.

      Sydney S. Snyder for appellant.

      William C. Chanler, Corporation Counsel (Stanley Buchsbaum and Paxton Blair of counsel), for respondent.
   Lehman, Ch. J.

In proceedings instituted by the Commissioner of Public Welfare of the City of New York in accordance with the provisions of section 64 of the Inferior Criminal Courts Act (L. 1910, ch. 659, as amd.), the Court of Special Sessions has made an order adjudging the defendant to be the father of a natural child of one Margie Vincent and directing the defendant to pay the weeldy sum of eight dollars for the support, maintenance and education of said child. The mother of the child is a married woman, and, though she was living apart from her husband for more than a year prior to the birth of the child, she was not separated from her husband pursuant to a judgment of a competent court. The Court of Special Sessions has jurisdiction “ in proceedings to establish paternity and to provide for the support of natural children and of their mothers as set forth herein.” (Inferior Crim. Ct. Act, § 60.) Upon this appeal the defendant contends that the evidence does not establish that the child born to Margie Vincent is a “ natural child ” as defined in the Inferior Criminal Courts Act, and on that ground he challenges the jurisdiction of the court to make the order appealed from. He also challenges the competency of the evidence and its sufficiency to prove that he is the father of the child.

The presumption of legitimacy, we have often said, is Tone of the strongest and most persuasive known to the law.” (Matter of Findlay, 253 N. Y. 1, 7.) At one time, as the court pointed out in that case, the presumption was conclusive “if a husband, not physically incapable, was within the four seas of England during the period of gestation.” In such case the court would not “ listen to evidence casting doubt on bis paternity.” Even now, though the ancient rule no longer is applied with the same rigor, “ if husband and wife are living together in the conjugal relation, legitimacy will be presumed though the wife has harbored an adulterer ” (p. 8). The presumption, however, may be shattered by evidence which establishes that there has been no possibility of access. Legitimacy, we have said there, “ may even be presumed though the spouses are living apart if there is a fair basis for the belief that at times they may have come together” (p. 8). In Matter of Findlay (supra) the court thus said in effect that in accordance with well-established common-law rules a child, bom to a married woman, “ living in conjugal relation with her husband,” must be presumed conclusively to be a child bom in wedlock unless it appears that during the period of gestation the husband was physically handicapped, or that the spouses were living apart in manner which excluded any fair basis for belief that they may have come together.”

The statutory definition of a “ natural child ” as formulated in the Inferior Criminal Courts Act is “ a child who is either begotten and bom (a) out of lawful matrimony, (b) while the husband of its mother was separate from her for a whole year previous to its birth, (c) during the separation of its mother from her husband pursuant to a judgment of a competent court; or who is begotten at a time when the husband is impotent.” (§ 61.) The definition is formulated in almost exactly the same language as the statutory definition of a child “ bom out of wedlock ” in section 119 of article VIII of the Domestic Relations Law (Cons. Laws, ch. 14), which is entitled “ Support and Education of Children Born out of Wedlock, and Proceedings to Establish Paternity.” Prior to the enactment of that article, similar paternity proceedings had been authorized and regulated by the Code of Criminal Procedure and there the Legislature, in section 838, had used the same language to define a “ bastard.” In judicial opinions, judges, according to their individual tastes or whims, had used indiscriminately the terms “ natural child ” or “ child bom out of wedlock ” or “ bastard ” to describe a child whose father was not the mother’s husband; and difference in the descriptive terms was not intended to carry any juridical consequences. The Legislature in different statutes enacted at different times has also used those terms indiscriminately to describe a child whose father is not the husband of the child’s mother and the Legislature has conferred upon the Court of Special Sessions in the City of New York, and upon other courts elsewhere, jurisdiction in proceedings to establish the paternity of such a child for the purpose of compelling the father to pay for the child’s support and education.

A “ natural child ” or a “ child bom out of wedlock ” or a “ bastard ” as defined by the statutes is in effect a child bom “ out of lawful matrimony ” or bom to a married woman under conditions where, as stated in Matter of Findlay, the presumption of legitimacy is not conclusive and has been rebutted. The statutory reference to a child bom while the husband of its mother was “ separate ” from her for a whole year means, it is plain, while husband and wife were living apart under conditions where there is no “ fair basis for the belief that at times they may have come together.” There is sufficient proof of that in this case and, when the court so found, it had jurisdiction to make the order appealed from.

In part, however, that proof consists of testimony given by the husband and the wife; and, in the absence of statute, “it is well settled that neither husband nor wife are competent to prove non-access during wedlock, whatever may be the form of legal proceedings, or whoever may be the parties thereto.” (Chamberlain v. People, 23 N. Y. 85, 88; Matter of Findlay, 253 N. Y. 1.) The Legislature has provided that in paternity proceedings brought in the city of New York, “ if the mother is married both she and her husband may testify to non-access.” (Inferior Crim. Ct. Act, § 67, subd. 1.) Except in paternity proceedings, the common-law rule that husband and wife may not so testify remains in force. The exercise of the power of the Legislature to change ancient general rules of evidence is subject to challenge only upon the ground that the limitations placed upon the legislative power by the Constitution of the United States or the Constitution of the State of New York have been disregarded. The statute is challenged in this case on the ground that the attempted differentiation in the rules of evidence in paternity proceedings and the rules in other cases is unreasonable and deprives the defendant of the equal protection of the law guaranteed by the Constitution of the United States.

The statutory rule of evidence contained in section 67 of the Inferior Criminal Courts Act (formerly section 35-g, subdivision 1, L. 1930, ch. 434) was held unconstitutional and void by the Appellate Division of the first department in Commissioner of Public Welfare v. Ladutko (256 App. Div. 775; affd., without opinion, 281 N. Y. 655). In that case the Appellate Division said: “ The statute which undertakes to effect a change in the common-law rule by allowing such proof within the city of New York while such testimony is still inadmissible in the rest of the State, is based upon no reasonable ground for the distinction which it makes. Even in its application to New York city the challenged rule applies only at paternity trials had in the Court of Special Sessions, whereas the common-law rule remains unchanged for other courts in the city.” The majority of the court, concurring in that opinion, voted to reverse the order made by the Court of Special Sessions “ and dismiss the proceedings on the additional ground that the evidence in this case does not sustain the finding of the court that the defendant was the father of the complainant’s child. The evidence offered to prove that fact was unsatisfactory and insufficient, particularly in view of the strong presumption of legitimacy.”

Upon the appeal to this court, we accepted the conclusion of the Appellate Division that the evidence was unsatisfactory and did not overcome the strong presumption of legitimacy. Then, it was unnecessary to determine whether some of the evidence received was not only unsatisfactory but was also incompetent because the statute which purported to permit its introduction was unconstitutional. On that point we expressed no opinion. In the interval between the decision of the Appellate Division in that case and the affirmance by this court, the Legislature by chapter 852 of the Laws of 1939 had attempted to meet the objections pointed out in the opinion of the Appellate Division. That statute amended section 126 of the Domestic Relations Law and made the rule that “ if the mother is married, both she and her husband may testify to non-access ” applicable in paternity proceedings in every court in this State. The question here presented is whether the differentiation made between such proceeding and other proceedings, though state wide, is without any reasonable basis.

Paternity proceedings are brought to enforce a statutory duty imposed upon the father of a natural child to whom the father at common law owed no duty. (People ex rel, Lawton v. Snell, 216 N. Y. 527.) Such a proceeding may be brought by the mother or if the child is or is likely to become a public charge ” by a public official. (Inferior Crim. Ct. Act, § 64, subd. 1.) The child is not a necessary-party to the proceedings nor is the husband of the mother. The order made in such a proceeding does not constitute an adjudication binding on them or persons claiming through or under them that the child is or is not the legitimate offspring of married parents. An order adjudging that some person other than the mother’s husband is the father of the child and ordering him to provide for its support is, it is plain, not a binding adjudication of illegitimacy. It does not establish the status of the child nor would it be competent evidence to establish illegitimacy in any proceeding to which others are parties.

It is not unreasonable that in statutory proceedings to enforce a duty imposed by statute upon the father of a “ natural child ” the mother of the child and her husband should be permitted to give testimony which they would not be permitted to give where an adjudication of the status of the child is sought. It was said by Lord Mansfield in Goodright v. Moss (2 Cowp. 594) that “ It is a rule, founded in decency, morality and policy that they shall not be permitted to say after marriage, that they have had no connection and therefore that the offspring is spurious,” but the foundation of the rule is much firmer when it is invoked for thejprotection of the child or of the parties to the marriage or of the public, than when invoked as a shield by an alleged adulterer against liability for the consequences which follow from his wrong.

Indeed, even though the rule of evidence which denies to a husband or wife permission to say that they have had no connection and therefore that the offspring is spurious ” is, in the absence of statute, generally applied in bastardy proceedings, it has been suggested long ago by an eminent judge that even without a statute such testimony should be received in that class of proceeding. Thus, in the case of King v. Luffe (8 East, 193) Lord Ellenborough, after pointing out that in such a proceeding, of course, a wife may testify that she had intercourse with an adulterer, added: “ it might also perhaps be competent for her to prove that the adulterer alone had that sort of intercourse with her, by which a child might be produced within the limits of time which nature allows for parturition.” (See, also, State v. Shoemaker, 62 Iowa, 343; Miller v. Anderson, 43 Ohio St. 473, for judicial suggestions that analogous distinctions might be made by the courts even without a statute.) Other objections raised by the appellant have been examined and rejected.

The order should be affirmed.

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

Order affirmed.