author: Desmond, J. Van Vooehis, J.

text:
    C. Clarence Kaskel, Appellant, v. Vincent R. Impellitteri et al., Constituting the Board of Estimate of the City of New York, et al., Respondents, and Triborough Bridge and Tunnel Authority, Intervener, Respondent.
    Submitted June 4, 1953;
    decided October 23, 1953.

      Harold L. Herzstein, Cecil A. Citron and Irving E. Kanner for appellant.
    I. Subdivision 2 of section 72-k of the General Municipal Law is unconstitutional. (Matter of Murray v. La Guardia, 291 N. Y. 320; Adams v. Housing Authority of City of Daytona Beach, 60 So. 2d 663 [Fla.]; Matter of Niagara Falls & Whirlpool Ry. Co., 108 N. Y. 375; Matter of New York City Housing Authority v. Muller, 270 N. Y. 333; Matter of Tuthill, 163 N. Y. 133.) II. Under Denihan Enterprises v. O’Dwyer (302 N. Y. 451), appellant was entitled to a hearing on the factual issue similar to the issue in that case as to whether the project area is substandard and insanitary. III. The redevelopment plan violates the provisions of the Housing and Rent Act of 1949 intended for the protection of the taxpayers and residents of the city in that it does not provide for redevelopment for predominantly residential uses; is therefore illegal and respondents should be enjoined from expending funds under it. IV. The contract between the city and Columbus Circle Apartments, Inc., violates the law on public letting. (Matter of McNutt Co. v. Eckert, 257 N. Y. 100; Denihan Enterprises v. O’Dwyer, 277 App. Div. 407.)

      Denis M. Hurley, Corporation Counsel (William S. Lebwohl, Seymour B. Quel, Harry E. O’Donnell, Reuben Levy and Benjamin Offner of counsel), for respondents.
    I. Section 1 of article XVIII of the New York Constitution was adopted with a distinct design of bringing about the clearance and rehabilitation of substandard areas. The statute which governs the instant project (General Municipal Law, § 72-k) was enacted to carry out this constitutional design. Accordingly, the instant condemnation proceeding, which complies with the requirements of the statute, is for a public purpose. (Matter of Murray v. La Guardia, 291 N. Y. 320; Belovsky v. Redevelopment Authority, 357 Pa. 329; Matter of Slum Clearance in City of Detroit, 331 Mich. 714; Nashville Housing Authority v. City of Nashville, 192 Tenn. 103; Opinion of the Justices, 254 Ala. 343; Blakemore v. Cincinnati Metr. Housing Authority, 74 Ohio App. 5; Opinion to the Governor, 76 R. I. 249; Matter of Housing Authority of Charlotte, 233 N. C. 649; Stockus v. Boston Housing Authority, 304 Mass. 507; Schenck v. City of Pittsburgh, 364 Pa. 31.) II. The governing statute properly invests duly designated municipal officials with discretion in the designation and selection of substandard areas. The record shows a substantial factual basis for the finding that the area here involved is substandard. (Stockus v. Boston Housing Authority, 304 Mass. 507; Douthit v. City of Covington, 284 Ky. 382; Green Point Sav. Bank v. Board of Zoning Appeals of Town of Hempstead, 281 N. Y. 534; Davidson v. City of Elmira, 180 Misc. 1052, 267 App. Div. 797, 292 N. Y. 723; Matter of Mounting & Finishing Co. v. McGoldrick, 294 N. Y. 104; Dismuke v. United States, 297 U. S. 167; Magann v. Long’s Baggage Transfer Co., 39 F. Supp. 742; State v. Sherrill, 136 Ohio St. 328.) III. An analysis of plaintiff’s particular objections to the instant project shows that they are all lacking in merit. (Perkins v. Lukens Steel Co., 310 U. S. 113; Tennessee Power Co. v. T. V. A., 306 U. S. 118; Schmoll, Inc., v. Federal Reserve Bank, 286 N. Y. 503; Matter of Mount Hope Development Corp. v. James, 258 N. Y. 510; Knowles v. City of New York, 176 N. Y. 430; Hopkins v. Hanna, 135 Misc. 750; Ziegler v. Chapin, 126 N. Y. 342; Campbell v. City of New York, 244 N. Y. 317; Kelly v. Merry, 262 N. Y. 151.)

      Samuel I. Rosenman, Max Freund, Andrew J. Schoen and Harvey L. Schein for intervener-respondent.
    I. Subdivision 2 of section 72-k does not permit the acquisition of private property for private use and profit and therefore does not deprive plaintiff of his property without due process of law in violation of section 7 of article I of the New York Constitution and of the Fourteenth Amendment to the United States Constitution. (Matter of Murray v. La Guardia, 291 N. Y. 320; Burt v. Pittsburgh, 340 U. S. 802; Belovsky v. Redevelopment Authority, 357 Pa. 329; Matter of Slum Clearance in City of Detroit, 331 Mich. 714; Nashville Housing Authority v. City of Nashville, 192 Tenn. 103; Opinion of the Justices, 254 Ala. 343; Stockus v. Boston Housing Authority, 304 Mass. 507.) II. Section 1 of article XVIII of the New York Constitution, insofar as it authorizes subdivision 2 of section 72-k and the granting to the city of the right to condemn the project area here involved, is not unconstitutional under the Fourteenth Amendment to the United States Constitution. (Matter of Murray v. La Guardia, 291 N. Y. 320; Burt v. Pittsburgh, 340 U. S. 802.) III. Plaintiff’s contention that section 72-k does not meet the requirements of section 1 of article XVIII of the New York Constitution and is therefore unconstitutional is without merit. (Matter of Murray v. La Guardia, 291 N. Y. 320.) IV. Plaintiff is not entitled to a trial on the issue of whether the project area is substandard and insanitary. (Betz v. Horr, 276 N. Y. 83; Ziegler v. Chapin, 126 N. Y. 342; Matter of Cruger, 84 N. Y. 619; Matter of Mounting & Finishing Co. v. McGoldrick, 294 N. Y. 104; Matter of Kats’s Delicatessen v. O’Connell, 302 N. Y. 286; Schenck v. City of Pittsburgh, 364 Pa. 31; Jury v. Wiest, 326 Pa. 554; United States v. Chemical Foundation, 272 U. S. 1; Stockus v. Boston Housing Authority, 304 Mass. 507; Burt v. Pittsburgh, 340 U. S. 802.) V. The redevelopment plan for the project does not violate the provisions of title I of the National Housing and Rent Act of 1949. The determination of the Federal Housing Administrator that the redevelopment plan meets the requirements of title I is conclusive. In any event, plaintiff has no standing to sue. (Perkins v. Lukens Steel Co., 310 U. S. 113.) VI. The Triborough Bridge and Tunnel Authority is fully qualified under title I of the Housing and Rent Act of 1949 to enter into and carry out the contract with the city to construct and operate a garage and coliseum.
   Desmond, J.

The nature of this suit and its procedural history, as well as the constitutional and statutory provisions which authorize slum, clearance and redevelopment by cities, are so carefully described in the dissenting opinion as to make repetition unnecessary. The position is this: plaintiff, as a taxpayer, disputes the conclusion of various qualified public bodies and officers that the area, in' Manhattan, bounded by Columbus Circle, Broadway, Eighth Avenue, Ninth Avenue, West 58th and West 59th Street, is substandard and insanitary ”. Plaintiff says it is not, and demands that the courts hold a trial to settle this allegedly justiciable issue of fact. But there is no dispute as to the physical facts. In rounded figures, 20% of the land proposed to be taken is occupied by dwellings all but one of which are more than sixty years old, 7 % of the site is covered by hotels and rooming houses, 34% is in parking lots where once there were outmoded buildings, and 39% is occupied by nonresidential structures. Of course, none of the buildings are as noisome or dilapidated as those described in Dickens’ novels or Thomas Burke’s Limehouse ” stories of the London slums of other days, but there is ample in this record to justify the determination of the city planning commission that a substantial part of the area is “ substandard and insanitary ” by modern tests, and that the whole 6.32 acres, taken together, may reasonably be considered a single ‘ ‘ area ’ ’ for clearance and redevelopment purposes. Power to make that determination has been lodged by the Constitution (N. Y. Const., XVIII, § 1) and the statute (General Municipal Law, § 72-k) in the city planning commission and the board of estimate, and when those bodies have made their finding, not corruptly or irrationally or baselessly, there is nothing for the courts to do about it, unless every act and decision of other departments of government is subject to revision by the courts (see Matter of Cruger, 84 N. Y. 619, 622; Ziegler v. Chapin, 126 N. Y. 342, 348).

The opinion of Judge Van Voobhis disposes of all plaintiff’s contentions, except that stated in clause (D) of paragraph Twenty-Fourth of the complaint, “ That the project area is not a substandard and insanitary area, and that any finding, consent or report by the defendants to the effect that such area is a substandard and insanitary area is unreasonable, arbitrary, capricious and illegal ”. That part of the complaint apparently attempts to state a taxpayer’s action under section 51 of the General Municipal Law. However, since no corruption or fraud is charged, plaintiff Kaskel, as a taxpayer, cannot succeed in such a suit, unless there is a total lack of power in defendants, under the law, to do the acts complained of (Kittinger v. Buffalo Traction Co., 160 N. Y. 377; Altschul v. Ludwig, 216 N. Y. 459). The decisions under section 51 make it entirely clear that redress may be had only when the acts complained of are fraudulent, or a waste of public property in the sense that they represent a use of public property or funds for entirely illegal purposes. Although the plaintiff here complains of the choice of this site for clearing and redevelopment as being ‘ ‘ arbitrary and capricious ”, we must keep in mind that this is not an “article 78” proceeding dealing with a situation wherein it might be claimed that public officials, although acting within their powers, are doing so in a way that is arbitrary or capricious. The substance of plaintiff’s contention in this respect is simply that this whole project is illegal because, according to him, the chosen site or area is not in fact substandard or insanitary.

There is no real question of fact here since the details as to age, condition and present use of the properties involved are undisputed and indisputable, as shown by the exhibits. Plaintiff does not dispute with defendants as to the condition of these properties or of the whole area. He is simply opposing his opinion and his judgment to that of public officials, on a matter z= which must necessarily be one of opinion or judgment, that is, | as to whether a specified area is so substandard or insanitary, I or both, as to justify clearance and redevelopment under the" law. It is not seriously contended by anyone that, for an area to be subject to those laws, every single building therein must be below civilized standards. The statute (and the Constitution), like other similar laws, contemplates that clearing and redevelopment will be of an entire area, not of a separate parcel, and, surely, such statutes would not be very useful if limited to areas where every single building is substandard. A glance at the photographs, attached to the city’s affidavit on these motions, shows that a considerable number of buildings in this area are, on a mere external inspection, below modern standards because of their age, obsolescence and decay. The other exhibits confirm this. Therefore, the question here is not whether certain public officials have acted arbitrarily or unwisely in coming to a certain conclusion. Here we have a naked question of legality, that is, of power, and the particular power to make a determination on this matter of judgment has been conferred by statute on these defendants. Four different public bodies have, after adequate investigation and consideration which appears in the record, determined that this area may properly be considered substandard and insanitary (five such bodies if we include the Triborough Authority, and seven if we include the Special Term and the Appellate Division). One can conceive of a hypothetical case where the physical conditions of an area might be such that it would be irrational and baseless to call it substandard or insanitary, in which case, probably, the conditions for the exercise of the power would not be present. However, the situation here actually displayed is one of those as to which the Legislature has authorized the city officials, including elected officials, to make a determination, and so the making thereof is simply an act of government, that is, an exercise of governmental power, legislative in fundamental character, which, whether wise or unwise, cannot be overhauled by the courts. If there were to be a trial here and the courts below should decide in favor of plaintiff, there would be effected a transfer of power from the appropriate public officials to the courts. The question is simply not a justiciable one.

A persuasive authority quite closely in point is Stockus v. Boston Housing Authority (304 Mass. 507, see beginning, p. 509). There a complaint was held insufficient in law which, much like our pleading here, said that the buildings in a certain area were in fact in such physical condition that the area could not be dubbed “ substandard ”. The Supreme Judicial Court of Massachusetts said: “ The extent that these various elements enter into and form the predominating and distinctive traits of a neighborhood is largely a matter of opinion ” and a matter of “ practical judgment, common sense and sound discretion ”. The Supreme Judicial Court of Massachusetts pointed out that men of training and experience might honestly differ as to whether a certain district was a slum area, but that in such cases the Legislature had undoubtedly given the local authorities power to make the determination; at page 510 of the opinion, the court pointed out that ‘ ‘ The allegation that the dwellings in this area are in good repair and condition is not an allegation that the defendants may not reasonably adjudge otherwise ”. The court stated, as is obviously correct, that the test is as to the area as a unit, and not as to any one or more particular structures, and that the allegations of the complaint stated no more than a mere opinion of the plaintiff on a perhaps debatable question which had been left by the Legislature to certain specified public officials (see, also, Schenck v. Pittsburg, 364 Pa. 31, 36; 11 McQuillin on Municipal Corporations [3d ed.], § 32.61, and decisions cited in notes to that section).

Another pertinent case is Davidson v. City of Elmira (180 Misc. 1052, affd. 267 App. Div. 797, motion for leave to appeal denied 292 N. Y. 723); the Special Term opinion, particularly at pages 1056 et seq. of Volume 180 Miscellaneous, is instructive and persuasive. Our decision in Denihan Enterprises v. O’Dwyer (302 N. Y. 451) is not pertinent here; among the differences between that case and this, is that, in Denihan, we had before us the complaint only, and that pleading stated a triable issue of fact as to whether the dominant purpose of that proposed taking was public or private.

It is not necessary, nor would it be useful, for us to measure the full possible reach of section 1 of article XVIII of the State Constitution, or section 72-k of the General Municipal Law. It is not to be assumed that responsible public officers will, in some future instance, label as “ substandard or insanitary ” an area in which there are no buildings at all, or fine, modern buildings only, or that they will attempt to condemn a number of such buildings by stretching the concept of “ area ”. Such attempts can be dealt with if and when they are made.

In addition to the appeals from the final judgment, plaintiff has appealed upon a certified question, pursuant to permission of the Appellate Division, from the order of the Appellate Division insofar as it affirms Special Term’s denial of an injunction pendente lite. This appeal must be dismissed (Civ. Prac. Act, § 589, subd. 4, par. [b]; § 603; Langan v. First Trust & Deposit Co., 296 N. Y. 60; Evadan Realty Corp. v. Patterson, 297 N. Y. 732).

The judgment should be affirmed, with costs.

Van Vooehis, J.

(dissenting). The basis for upholding the constitutionality of this statute (General Municipal Law, § 72-k), as outlined in this dissenting opinion, has been approved and adopted in the majority opinion written by Judge Desmond. This court is unanimously of the opinion that municipal funds can legally be spent to acquire real estate by condemnation for slum clearance, but the money authorized to be spent by this statute has to be used for slum clearance and not mainly for some other public purpose, however commendable such other purpose may be. If the purpose of this project is not primarily slum clearance, if the comparatively small number of substandard and insanitary dwellings to be eliminated could not rationally require the redevelopment of the site area as a whole, plaintiff contends that this would be an indication that the object of the project is not slum clearance but the erection of a coliseum on Columbus Circle, which is not a slum area, and which the evidentiary facts in the papers before the court indicate does not need to be redeveloped in order to eliminate the substandard buildings on or near Ninth Avenue. The necessity for linking the Columbus Circle section to the other area is not so clear, in my view, in the face of the proofs to the contrary, as to justify dismissing the complaint on motion for summary judgment.

There is no rational basis, according to plaintiff, for linking the Columbus Circle portion of the site area to the Ninth Avenue section in order to eliminate tenements on or in the immediate vicinity of Ninth Avenue. The contention is that redevelopment of the Ninth Avenue section, where some substandard and insanitary tenements are located, is unrelated to the more valuable property to be acquired in the vicinity of Columbus Circle, where there áre no tenements, that these are really two separate areas, and that the small amount of slum dwellings on and near Ninth Avenue could easily be eliminated separately, and would not have been undertaken jointly except for the coliseum. If that he true, plaintiff is entitled to enjoin the expenditure by the city of its share in the cost as a waste of public funds, regardless of however desirable a coliseum might be or however advantageous it might be to the city to have two thirds of its land cost paid from the Treasury of the United States. If the main purpose of combining these two areas is not slum clearance, but merely to lend color to the acquisition of land for a coliseum under the guise of a slum clearance project, then the combined project is not authorized by statute, and a taxpayer’s action can be maintained to restrain it under section 51 of the General Municipal Law (Denihan Enterprises v. O’Dwyer, 302 N. Y. 451). In that event, the courts would not be invading the administrative province, but performing their duty in limiting administrative officials, capable and public spirited as they may be, to spending public money for purposes authorized by law.

It is undisputed that not more than 27.1% of the entire site area is occupied for dwelling purposes of any land. Thirty-three and eight-tenths per cent of the site area is vacant land devoted to parking lots; even if some of this vacant land was formerly occupied by substandard and insanitary dwellings, there is no need to spend public funds to eliminate them since they have already been eliminated by private capital. Thirty-nine and one-tenth per cent of the site area is occupied by business or commercial buildings which have not been classified as substandard or insanitary by the municipal authorities. It does very well to cite Dickens’ novels, or Thomas Burke’s Lime-house ” stories of the London slums of other days, but these have nothing to do with condemning the Manufacturers Trust Building in this “ slum ” area, assessed at $1,500,000, in order to make way for a coliseum — a laudable object, to be sure, but not one whose connection with slum clearance is so clear as to be taken for granted without a trial.

The report of the municipal slum clearance committee, on the basis of which the Columbus Circle project was approved by the city planning commission, states that there are 243 families consisting of 602 persons now living in tenement buildings in the entire 6.32-acre site area. The estimated cost of land alone for the redevelopment project is $9,500,000, or $15,780 per person living in existing tenements. The estimated amount to be recovered on resale is something less than one third of this sum. When it is considered that this per capita expense represents the cost of acquiring what will be merely vacant land, and that it does not include any of the expense of redevelopment by the construction of new buildings, this in itself presents a triable issue concerning whether the mainspring of the project is really slum clearance. Manifestly no such per capita land cost could be designed to extend to the 9,000 acres in New York City that the committee’s report shows has been classified as slum, which is persuasive that this project would never have been undertaken for slum clearance alone. Even the above figure is computed on the hypothesis that all of the tenements in this site area are substandard and insanitary, whereas the land cost per individual slum dweller would be multiplied many times if the figures are adopted of the former chief of planning of the New York City housing authority, William C. Vladeck, who concludes, on the basis of his analysis of the area, that only 10% of the tenements therein are substandard or insanitary. Vladeck says that only 2% of the total site area is in reality slum. Respondents contend that Vladeck is mistaken in failing to characterize all of the old law tenements (built before 1901) in the area as substandard and insanitary. He replies by asserting (what appears to be uncontradicted) that most of these tenements are equipped with sanitary toilet facilities, running water, central heating, fire retarding devices, suitable ventilation, and involve but slight violations of statutes, municipal ordinances or regulations. His report indicates that about one third in area of the city of New York consists of old law tenements. The far-reaching questions should not be decided, as it seems to me, on motion for summary judgment, whether a building can be condemned as being substandard and insanitary merely for the reason that it is an old law tenement even if it is well maintained, and under what circumstances, if at all, such an area may be labeled substandard and insanitary if but a small and apparently disconnected part of it consists of buildings so classified. Such determinations should at least be based upon evidence, taken at a trial. Many factors need to enter into such a decision which are not now before the court. A trial would present an opportunity for the reception of evidence concerning whether there is any rational basis for linking the Columbus Circle with the Ninth Avenue neighborhood, in order to redevelop the latter area. The evidence at present in the record is the other way. Whether this project as a whole bears any real relation to that objective is what plaintiff asks to try in court. By the judgment appealed from, his complaint has been dismissed without opportunity for a trial.

The complaint in this taxpayer’s action charges that the expenditure of money for this project will constitute a waste of public funds. Waste, in this connotation, does not mean that it is claimed that the proposed coliseum will cost too much, or that the money will go for any private gain, but that funds earmarked by law for slum clearance will be ‘ ‘ wasted ’ ’ if they are spent contrary to what the statute authorizes.

It is said that plaintiff is not entitled to a trial for the reason that the city planning commission and the board of estimate have acted favorably upon the report of the slum clearance committee, and that the whole matter lies in the administrative domain into which the courts may not enter. The formulas which the courts have adopted in defining the boundaries of administrative discretion such as 6 arbitrary or capricious, ” “ bad faith ”, and so forth, sometimes sound as though they involved moral turpitude, which is not what they mean in this context, nor does plaintiff charge that it is present in this case. That is not a reason on account of which the courts should refrain from restraining the expenditure of municipal funds for non-statutory purposes. Motive is not involved in the sense that it was in Kittinger v. Buffalo Traction Co. (160 N. Y. 377), where the validity of legislative action was attacked by impunging the motives of the members of a legislative body. In this case the controversial question is simply whether public funds are to be spent for one public purpose which is authorized by statute or for another and different public purpose which is not authorized by statute.

It by no means follows, if these views are correct, that buildings or vacant land which are not slum in character cannot be condemned if that is incidentally necessary in order to redevelop a slum area. It cannot be done, however, if any slum clearance that may be involved is merely incidental to the redevelopment of other types of real property. If the existence of a few slum buildings within a particular site area is enough to divest the courts of jurisdiction to require that the dominant purpose of the project shall be the one which the statute requires, the door is opened to possible evasion of this law upon a large scale. The magnitude of the problem is disclosed by the statement in the slum clearance committee’s report, which has been referred to, that 9,000 acres in the city of New York have already been classified as slum, and that 1,328 acres are proposed to be eliminated by 1955. The power of taking private property for public use is a drastic one. It has long rested in the jurisdiction of the courts to decide whether, in particular cases, it is being invoked for a public purpose. By the same token, it is in the realm of the courts to decide whether the purpose, though public, is one sanctioned by the statute. This is far from saying that it is in the power of the courts to pass upon the advisability of every project of this kind. It is enough if the courts, in specific cases, define the boundaries of what is necessarily a wide administrative discretion. But that there are such boundaries can hardly be denied. If only 2%, or 8%, or 12% — at most 20.3% — of this site area, under varying interpretations of the facts now before the court, is really substandard or insanitary, and if that be sufficient to authorize condemnation of the entire area, without any further showing that the major portion has to be included in order to redevelop the minor part, such a holding would mean that a large proportion of the city of New York could be taken under the power of eminent domain, acquiring title from one private owner and transferring it to another without substantial reason. In some measure this power undoubtedly exists, but its exercise is subject to restraints which the courts are competent to enforce.

Some guidance may be found in the definition of the term “ area ” in the Redevelopment Companies Law (L. 1942, ch. 845, § 3, as amd. by L. 1943, ch. 234). It is defined as “ A section of a municipality wherein the planning commission finds that substandard conditions or insanitary housing conditions exist. An area may include land whether improved or unimproved, and buildings or improvements not in themselves insanitary or substandard, the inclusion of which is deemed necessary by such commission for the effective clearance, replanning, reconstruction or rehabilitation of the area of which such land or property is a part.” In order to obtain urban redevelopment by private capital, which is the object of section 72-k and similar statutes, there are necessarily occasions when it is difficult to interest private developers in new projects considered to be desirable, unless some opportunity to build is allowed beyond the exact sites occupied by the substandard and insanitary structures to be removed, and, indeed, sensible planning demands just that. Nevertheless if the analogy with the Redevelopment Companies Law has force, the language just quoted from the definition of what constitutes an ‘ ‘ area ’ ’, establishes that land, buildings or improvements, not in themselves insanitary or substandard, are to be included only if necessary “ for the effective clearance, replanning, reconstruction or rehabilitation of the area of which such land or property is a part ” — viz., if it is necessary as incidental to the redevelopment of the slums themselves. The statutory power fails if real property which is not slum is included in the site area for the sake of its own redevelopment, instead of being included as an adjunct to slum property that cannot be redeveloped satisfactorily without it. In this instance, the Columbus Circle section cannot be included unless it is necessary for the effective redevelopment of the Ninth Avenue neighborhood. The facts before the court tend strongly to show, on the contrary, that redevelopment of the Columbus Circle location, which is not substandard or insanitary in character, is the dominant purpose of the project.

In considering whether defendants were entitled to judgment dismissing the complaint, Table I annexed to the Yladeck report is significant, which shows that the existing site area is occupied in the following proportions:

Parldng lot ............................ 33.8%
Nonresidential uses..................... 39.1%
Hotels & rooming houses................ 6.8%
Elevator apartments.................... 3.3%
Walk-up apartments .................... 17.0%

Vladeck’s report states that “ a few buildings in the area can be construed as slum buildings ” on the side toward Ninth Avenue, that the elevator apartments would be considered standard housing under any definition ”, and it concedes that the age of the apartments would tend to classify them as slums “ if they had not been rehabilitated and were not being decently maintained.” After stating the detailed facts of his survey of the site, Vladeck concludes that, based on these facts, and “ predicated upon the accepted definition of slum dwelling, it is fair to state that at the most, less than 10% of the structures could be so considered. * * Less than 17% of the site area and less than 8% of the assessed value of the area is devoted to walk-up apartments. Using the previous assumption that not more than 10% of these walk-up structures can be considered as slum buildings, the percentage of slum condition for the site, as a whole, becomes ridiculously small, being 2% of the area and less than 1% of the value. Further interpretation of this Table shows that almost three-quarters of the site and more than four-fifths of the value is devoted exclusively to parking lots and non-residential structures, prominent among which is the Manufacturers Trust Company building, a 22-story structure, whose assessment, with its land, exceed[s] $1,500,000. * * * Excluded from the analysis of slum conditions were the hotels, rooming houses and elevator apartments. These were excluded because of the fact that the hotels and rooming houses cater, in large, to transients and not to family groups and the two elevator buildings would be considered standard housing under any definition. e * * The area is bounded on the east by Columbus Circle and the southerly end of Central Park, certainly not a slum area. The southern frontage of West 58th Street contains a number of substantial residential buildings and even those built prior to the turn of the century show a high standard of renovation and maintenance. The frontage on the west is almost completely occupied by the Eoosevelt Hospital and its new extension, and a large church building; the north side abuts a highly developed commercial street, whose structures are well maintained and fully occupied. It is interesting to note that in a survey taken by the State of New York, Division of Housing, only two years ago, the area selected in west mid-town, between 42nd Street and 56th Street, lies entirely west of Ninth Avenue.” The Vladeck report concludes that “ It is obvious upon analysis of the data presented either in the report or in the survey that the Slum Clearance portion of the proposed Redevelopment Project is not the primary purpose of the proposed development.”

The statements of fact in the Vladeck report are mainly undisputed in this record, although since plaintiff appeals from summary judgment dismissing the complaint, the judgment should be reversed if there is a showing of evidence creating a triable issue, even if some facts are disputed. There is no dispute that 33.8% of the site area is vacant land, which is not slum, neither is it disputed that at least 39.1% of the site area is devoted to commercial and business uses. The only adverse comment in the slum clearance committee’s report against the latter property is “ Non-residential structures have not been classified, but most of them can be considered obsolete, occupying land the value of which is inconsistent with the age and type of buildings.” A commercial or business building, which has no violation against it, and which is not a menace to health or safety, cannot become slum simply because it may have become obsolete. The statute does not confer the power of eminent domain merely because the value of land may be inconsistent with the age and type of the building upon it. The power is given to eliminate slums. This is not to say that commercial or business structures may not be removed as part of redevelopment plans if to do so is required as an incident of rehabilitating slum area nearby; it does mean that the existence of merely obsolescent business or commercial structures is not enough, in itself, to characterize the area as slum. The commercial and other nonresidential buildings in this site area cannot, in any event, be counted for the purposes of this appeal as being in themselves substandard or insanitary, in view of the statement in the committee’s report that they have not been so classified. This report contains the findings made by the committee, which were acted upon by the city planning commission and the board of estimate. Not only are no facts set forth on which a conclusion could be based that these buildings are slum, but the statement that they have not been classified as slum, is an affirmative showing that the particular features which render buildings substandard and insanitary have not been examined and analyzed by the committee, and that no administrative determination has been made that these nonresidential buildings fall within the category required by the statute. The court may not substitute such a determination of its own where the administrative body has omitted to make one.

It thus appears beyond serious dispute that at least 72.9% of the site area consists of vacant land or commercial structures which could not under any theory be regarded as slum in character on the basis of this record.

The maps supplied by both sides show commercial buildings or parking sites exclusively on the eastern half of the plot, the side toward Columbus Circle, except for one elevator apartment house fronting on the south side of West 60th Street. There are no residential structures of any sort in the easterly three quarters of the area between 58th and 59th Streets, nor in the easterly half of the area between 59th and 60th Streets, with the exception of the elevator apartment house above mentioned.

In order to sustain the administrative findings that this whole area is substandard and insanitary, respondents are really reduced to reliance upon the 17% of the area covered by the walk-up apartments, all in the Ninth Avenue section, to the west, away from Columbus Circle. The committee’s report and the Vladeck report differ in minor respects concerning the condition of these walk-up apartments, but agree that a substantial number of them are provided with proper sanitation, heating, ventilation, fire retarding devices and are otherwise habitable. The reports also agree that they are old law tenements, and consequently occupy excessive portions of the lot areas as judged by present standards. Both agree that some of them are substandard and insanitary, Vladeck placing the number in that category at 2% of the site area. This is not an unsupported conclusion; it is based on Vladeck’s examination of the premises, and on the particular facts which he states exist and which are enumerated in his report. He recognizes that all of these walk-up apartments would be classified as slum if they had not been rehabilitated and were not being decently maintained. The committee report contradicts this figure of 2% only by saying that 66.7% of the residence buildings are “ badly run down ” and 12.5% are deteriorated ”. If these terms be construed to indicate that those percentages are all slum, it would mean that about 12% of the site area is of that character.

Approximately one third of the area of the city of New York has been stated to be occupied by old law ” tenements, constructed before 1901. It may well be that they comprise a substantial part of the 9,000 acres in the city which the committee’s report states are “ recognized slums ” which it is ultimately proposed to remove. It is possible that lack of yards, size of rooms, lack of ventilation and other characteristics of old law tenements are enough so that any or all such buildings, regardless of how they are being maintained, can be classified as substandard and insanitary in the discretion of the administrative authorities. The present record, on appeal from a summary judgment, lacks the factual detail necessary in order to decide that important point. Assuming, however, the entire 17% in area occupied by these walk-up tenements, or even the 20.3% occupied by them and the elevator apartment houses, to be substandard and insanitary, it still remains true that there is no substantial evidence in this record that it is necessary to condemn the property between these apartment houses and Columbus Circle for slum clearance purposes. That property, as has been stated, is not substandard nor insanitary in itself, nor has a basis been shown for the exercise of administrative judgment that it must be redeveloped as incidental to the redevelopment of slum areas on or near Ninth Avenue.

By the Vladeek report and affidavits plaintiff has sustained whatever burden is upon him to come forward with evidentiary facts in opposing a motion for summary judgment, and also for the purpose of the motion, to rebut the presumption of regularity of official acts. Sufficient has been shown to draw in question that the determinations of the committee, the city planning commission and the board of estimate respecting this slum clearance site, had warrant in the record and a reasonable basis in law (Matter of Mounting & Finishing Co. v. McGoldrick, 294 N. Y. 104, 108).

As already indicated, I agree that section 72-k of the General Municipal Law is constitutional, in the respects in which it is attacked, and the views that follow reflect those of the entire court. The ground of plaintiff’s attack upon the validity of subdivision 2, under which respondents have proceeded, is that it fails to prescribe standards or safeguards governing the clearance, replanning, reconstruction and rehabilitation of substandard and insanitary areas. Section 1 of article XVIII of the State Constitution adopted in 1938, authorizes the Legislature to provide for slum clearance (cf. Matter of Murray v. La Guardia, 291 N. Y. 320) “ by such means and upon such terms and conditions as it may prescribe ”. Plaintiff takes the position that this provision is not self-executing, and that the Legislature had to specify particular means, terms and conditions to carry it into effect. The contention on this point is not so much that the Legislature has failed to define or to describe what is meant by “ substandard and insanitary areas ”, which is the phrase used in the Constitution to define what real property may be acquired, the meaning of which is elaborated in section 2 of the Urban Redevelopment Corporations Law (L. 1941, ch. 892) and in section 2 of the Redevelopment Companies Law (L. 1942, ch. 845), but it is argued that section 72-k is defective in not being more precise than the Constitution in prescribing how the municipality is to be regulated in disposing of the land to others so as to insure that the area will be effectively replanned, reconstructed and rehabilitated. The Redevelopment Companies Law, to be sure, is somewhat more specific and limited in this respect. Projects covered by it must be designed and used primarily for housing purposes, but portions may be planned and used for business, commercial, cultural or recreation purposes appurtenant thereto (L. 1942, ch. 845, § 14, as amd. by L. 1943, ch. 234). Instead of contemplating that the municipality shall take a loss on the projects, redevelopment law companies are required to pay to the municipality the entire cost of assembling the land (§ 20). Nevertheless, except for limitation by statute to residential uses, maximum rentals and provision for partial tax exemption, the supervising agency, planning commission and local legislative body are allowed almost as much latitude in approving the design of the new projects under the Redevelopment Companies Law as in the case of section 72-k of the General Municipal Law (cf. Redevelopment Companies Law, §§ 4-5, 14-15, 17-21, 24). The constitutionality of the Redevelopment Companies Law was sustained, in these respects, in Matter of Murray v. La Guardia (supra).

Section 72-k of the General Municipal Law is drawn upon the basis, upheld in Matter of Murray v. La Guardia, that slum clearance is in itself a public purpose, which is separate and distinct from the objects to which the land may subsequently be devoted after being redeveloped by private capital. The State Constitution does not require that slums shall be rehabilitated exclusively by reconstruction for low cost housing, which is a different public purpose that may or may not be superimposed on slum clearance (Matter of Murray v. La Guardia, sufra). Consequently, except where an applicable statute requires, the slum area may be cleared, replanned, reconstructed and rehabilitated according to any design and for any purpose which renders the area no longer substandard or insanitary. The Legislature is presumed to have interpreted those words in subdivision 1 of article XVIII of the Constitution, when it used them in section 72-k of the General Municipal Law, as having the same meaning which it ascribed to them in section 2 of the Dedevelopment Companies Law (as amd. by L. 1943, ch. 234) viz., “ substandard conditions and insanitary housing conditions owing to obsolescence, deterioration and dilapidation of buildings, or excessive land coverage, lack of planning, of public facilities, of sufficient light, air and space, and improper design and arrangement of living quarters ”, and lack of “a sufficient supply of adequate, safe and sanitary dwelling accommodations properly planned and related to public facilities ”. (Cf. Urban Eedevelopment Corporations Law, § 2, L. 1941, ch. 892.) There appears to be agreement that, in general, as stated in the Vladeck report submitted by plaintiff: “ It is generally accepted that a slum area is one, which because of lack of adequate open spaces and community facilities, and because of a preponderance of sub-standard buildings, does not provide an environment in accordance with the accepted standard of urban neighborhood life. A slum building, on the other hand, has been interpreted to mean a building which lacks private toilets, electric lighting, windows in each room, central heating, rooms of adequate size, adequate fire protection or a minimal standard of decent maintenance.”

If the description “ substandard and insanitary areas ”, commonly called slums, supplies a legal standard for the determination of what a slum is, so as to validate condemnation for public housing, urban redevelopment or under the Redevelopment Companies Law, it is equally adequate to furnish a standard by which to decide what is not a slum. All that is required by section 72-k is that the deed, lease, or other instrument by which real property is conveyed or demised by the municipality shall contain provisions requiring the purchaser or lessee to clear, replan, reconstruct or rehabilitate the property in such manner as to render certain that it shall not be substandard or insanitary in design or construction after the work shall have been completed. That is provided for by section 72-k, and is sufficient to establish its validity against plaintiff’s attack.

Statutory or constitutional provisions authorizing local public agencies to undertake urban redevelopment projects for slum clearance have been adopted in at least thirty-seven States, and their validity has been almost uniformly upheld. Reference is made to the article by Philip H. Hill (1952) entitled: Recent Slum Clearance and Urban Redevelopment Laws ”, in Washington and Lee Law Review (Vol. IX, p. 173) to indicate the extent of legislation of this character, and current trends in its construction and enforcement. This is, of course, a different question from whether this particular (Columbus Circle) slum clearance project falls within the authorization of the statute.

The remaining questions raised by plaintiff are not substantial. The contracts between the city and the redevelopers, described briefly as Apartments and Triborough, are adequate to insure that the area will be properly redeveloped if redevelopment is warranted. Although Triborough is a public authority, it stands in the same position respecting the projects as any outside redeveloper, and subdivision b of section 384 of the City Charter requiring sale at public auction or by sealed bids does not appear to have been violated, in view of the contingent clauses in the contracts rendering them conditional on Apartments and Triborough being the highest bidders. Although it is true that under the National Housing Act of 1949 (U. S. Code, tit. 42, § 1460, subd. [c]) Federal funds are made available for slum clearance under State auspices only where the area to be acquired is predominantly residential in character ” or where it is to be redeveloped for predominantly residential use ”, and it is conceded by defendants that 53.54% of this site will be redeveloped for residential purposes only if 18,000 square feet of parking space in the coliseum is allocated to residential uses, and that otherwise less than 50% would be devoted to residential purposes, nevertheless the question whether the Federal appropriation was authorized by the Federal statute has been held to be subject to the sole cognizance of the Federal courts (Perkins v. Lukens Steel Co., 310 U. S. 113).

On appeal from judgment: Judgment affirmed, with costs. Lewis, Ch. J., Conway, Dye and Froessel, JJ., copcur with Desmond, J.; Van Vooehis, J., dissents in opinion in which Fuld, J.. concurs.

On appeal from order: Appeal dismissed (Civ. Prac. Act, § 589, subd. 4, par. [b]; § 603; Langan v. First Trust & Deposit Co., 296 N. Y. 60; Evadan Realty Corp. v. Patterson, 297 N. Y. 732). No opinion. Lewis, Ch. J., Conway, Desmond, Dye, Fuld, Froessel and Van Voorhis, JJ., concur.

On appeal from judgment: Judgment affirmed.

On appeal from order: Appeal dismissed. [See 306 N. Y. 609.]

       Vladeck’s basic facts are largely undisputed in the record on this appeal, but even if they were contested, it seems to me that it would not be in order to brush them aside as having no probative force on a motion for summary judgment.

       Alabama, Arkansas, California, Colorado, Connecticut, Delaware, Florida, Georgia, Illinois, Indiana, Kansas, Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan, Minnesota, Missouri, Nebraska, New Hampshire, New Jersey, New York, North Carolina, Ohio, Oregon, Pennsylvania, Rhode Island, South Carolina, South Dakota, Tennessee, Virginia, West Virginia, Wisconsin, Alaska, Hawaii, Puerto Rico and the Virgin Islands.

        Opinion of the Justices, 235 Ala. 485 (1938); Humphrey v. City of Phoenix, 55 Ariz. 374 (1940); Hogue v. Housing Authority of North Little Rock, 201 Ark. 263 (1940); Housing Authority v. Dockweiler, 14 Cal. 2d 437 (1939); People ex rel. Stokes v. Newton, 106 Col. 61 (1940); Marvin v. Housing Authority, 133 Fla. 590 (1938); Williamson v. Housing Authority, 186 Ga. 673 (1938); Lloyd v. Twin Falls Housing Authority, 62 Idaho 592 (1941); Edwards v. Housing Authority, 215 Ind. 330 (1939); Spahn v. Stewart, 268 Ky. 97 (1937); State ex rel. Porterie V. Housing Authority, 190 La. 710 (1938); Matthaei v. Housing Authority, 177 Md. 506 (1939); Allydonn Realty Corp. v. Holyoke Housing Authority, 304 Mass. 288 (1939); Matter of Brewster St. Housing Site, 291 Mich. 313 (1939); Thomas v. Housing & Redevelopment Authority of Duluth, 234 Minn. 221 (1951); Laret Investment Co. v. Dickmann, 345 Mo. 449 (1939); Rutherford v. Great Falls, 107 Mont. 512 (1939); Lennox v. Housing Authority, 137 Neb. 582 (1940); McLaughlin v. Housing Authority of City of Las Vegas, 68 Nev. 84 (1951); Opinion of Justices, 94 N. H. 515 (1947); Romano v. Housing Authority, 123 N. J. L. 428, affd. 124 N. J. L. 452 (1940); Matter of New York City Housing Authority V. Muller, 270 N. Y. 333 (1936); Wells V. Housing Authority, 213 N. C. 744 (1938); State ex rel. Ellis v. Sherrill, 136 Ohio St. 328 (1940); Doman v. Philadelphia Housing Authority, 331 Pa. 209 (1938); McNulty v. Owens, 188 S. C. 377 (1938); Knoxville Housing Authority v. Knoxville, 174 Tenn. 76 (1939); Housing Authority V. Higginbotham, 135 Tex. 158 (1940); Mumpower v. Housing Authority of City of Bristol, 176 Va. 426 (1940); Chapman v. Huntington Housing Authority, 121 W Va. 319 (1939).


source: Caselaw Access Project

author: Froessel, J.

license: Public Domain

text:
    Thomas J. Bata et al., Respondents, v. Jan A. Bata, Appellant, et al., Defendants.
    Argued May 21, 1953;
    decided October 23, 1953.

      Henry Cohen, Rudolf B. Schlesinger, Jonathan B. Bingham and Beate Bloch for appellant.
    I. The new finding below that Thomas Bata’s intentions as expressed in his will and memorandum of sale were sham, and the documents intended to be “ fiction ”, is erroneous as a matter of law. (Chisholm v. Commissioner of Internal Revenue, 79 F. 2d 14; Sawtell v. Commissioner of Internal Revenue, 82 F. 2d 221; Johnson v. Commissioner of Internal Revenue, 86 F. 2d 710; Matter of Kennedy, 159 Mich. 548; Matter of Smith, 308 Mich. 518; Fleming v. Morrison, 187 Mass. 120; Lister v. Smith, 3 Sw. & Tr. 282; Wright v. Delafield, 25 N. Y. 266; Ga Nun v. Palmer, 216 N. Y. 603; Cudney v. Cudney, 68 N. Y. 148.) II. Thomas Bata’s wishes as expressed in his will and in the accompanying memorandum of sale should be given effect. (Matter of Fowles, 222 N. Y. 222; Matter of Rausch, 258 N. Y. 327; Bizzey v. Flight, [1876] L. R. 3 Ch. D. 269; Matter of Dimmitt, 141 Neb. 413; Arrington v. Brown, 235 Ala. 196; Jennings v. Reeson, 200 Mich. 559; White v. Reading, 293 Mo. 347; Woods v. Gilson, 178 Mass. 511; Loring v. Sumner, 23 Pick. 98 [Mass.]; Reynolds v. Reynolds, 224 N. Y. 429.) III. Marie Bata and Thomas Bata are barred from asserting any rights to Thomas Bata’s business property. (Schloss Bros. & Co. v. Bennett, 260 N. Y. 243; Lieberman v. Templar Motor Co., 236 N. Y. 139; Duke of Leeds v. Lord Amherst, 2 Phillips 117, 41 Eng. Rep. 886; Close v. Glenwood Cemetery, 107 U. S. 466; Turner v. American Metal Co., 268 App. Div. 239, 295 N. Y. 822; Rothschild v. Title Guar. & Trust Co., 204 N. Y. 458; Kent v. Quicksilver Mining Co., 78 N. Y. 159; Pollitz v. Wabash R. R. Co., 207 N. Y. 113; Chamberlain v. Chamberlain, 43 N. Y. 424; Lee v. Tower, 124 N. Y. 370; Beetson v. Stoops, 186 N. Y. 456; Smith v. Wait, 4 Barb. 28; Matter of Fowles, 222 N. Y. 222.) IV. Marie Bata and Thomas Bata must be denied relief — even upon the finding below that a “ fiction ” was perpetrated. (Burnet v. Brooks, 288 U. S. 378; First Nat. Bank of Boston v. Commissioner of Internal Revenue, 63 F. 2d 685; State of Colorado v. Harbeck, 232 N. Y. 71; Johnson v. Yellow Cab Co., 321 U. S. 383; Leonard v. Poole, 114 N. Y. 371; Holman v. Johnson, 1 Cowp. 341, 98 Eng. Rep. 1120; Kalman v. Kalman, 275 App. Div. 715; Carmine v. Murphy, 285 N. Y. 413; Flegenheimer v. Brogan, 284 N. Y. 268; Reiner v. North Amer. Newspaper Alliance, 259 N. Y. 250.)

      Inzer B. Wyatt, Alfred Jaretski, Jr., and Robert MacCrate for respondents.
    I. The Court of Appeals may not consider the new theory of a testamentary gift because the case was not tried on any such theory. (Salisbury v. Howe, 87 N. Y. 128; United Press v. New York Press Co., 35 App. Div. 444, 164 N. Y. 406; Caponigri v. Altieri, 165 N. Y. 255; Racine v. Morris, 201 N. Y. 240; Persky v. Bank of America Nat. Assn., 261 N. Y. 212; Maloney v. Hearst Hotels Corp., 274 N. Y. 106.) II. The courts below correctly found title in the heirs to the property in suit. III. Arguments of “ loches ”, “ acquiescence ” and the like cannot defeat the legal title of respondents to these 826 Leader shares. (Pollits v. Wabash R. R. Co., 207 N. Y. 113; United States v. Mack, 295 U. S. 480; Brant v. Virginia Coal & Iron Co., 93 U. S. 326; Oklahoma v. Texas, 268 U. S. 252; Mayor of City of N. Y. v. Law, 125 N. Y. 380; Hatch v. Ferguson, 57 F. 966, 68 F. 43; Commissioner of Internal Revenue v. Burke, 62 F. 2d 7.) IV. Respondents have committed no wrong which would forfeit their property. (State of Colorado v. Harbeck, 232 N. Y. 71; Loughran v. Loughran, 292 U. S. 216; National Bank & Loan Co. v. Petrie, 167 N. Y. 589, 189 U. S. 423; Planters’ Bank v. Union Bank, 16 Wall. [U. S.] 483.) V. The documents do not contain any testamentary gift to appellant. (Matter of Rausch, 258 N. Y. 327; Post v. Hover, 33 N. Y. 593; Bradhurst v. Field, 135 N. Y. 564; Dreyer v. Reisman, 202 N. Y. 476; Booth v. Baptist Church, 126 N. Y. 215; Matter of Bagot, [1893], 3 Ch. 348; Zimmerman v. Hafer, 81 Md. 347; Noble v. Tipton, 219 Ill. 182; Jennings v. Reeson, 200 Mich. 559; Allenbach v. Ridenour, 51 Nev. 437.) VI. There is no “ new finding ” which is “ without evidence to support it ”. VII. The new theory should not give appellant a new trial.
   Froessel, J.

We are here confronted with an unfortunate family controversy between plaintiffs, the widow and only son of Thomas Bata, on the one hand, and defendant Jan Bata, Thomas’s twenty-year younger half brother, on the other. Thomas Bata (hereinafter referred to as Thomas) was an unusually capable Czech industrialist, the ninth in line of a family of shoemakers, dating from the sixteenth century. Though born in humble circumstances, he emerged from obscure beginnings as a provincial shoemaker and created a huge industrial shoe empire which had its inception in the town of Zlin, Province of Moravia, Czechoslovakia.

By the year 1931, the Zlin factory was the largest in Europe, turning out 150,000 pairs of shoes a day and equipped for the manufacture of 200,000 pairs daily; its shoes were sold on the continents of Europe, Asia, Africa and North America, including such countries as the United States, England, Iceland, most of the nations of Europe, the Near East, and a number of island possessions. According to the findings below, the value of Thomas’s interest in this vast enterprise prior to his death was between thirty and forty million dollars. While in good health and actively at work further extending his operations into many parts of the world, he met his death at the age of fifty-six in the early morning of July 12, 1932, in an airplane accident at Zlin while en route to visit his son in the factory in Switzerland.

The present action was brought in May, 1947, by plaintiffs (hereinafter called Marie and Tom) to replevy from defendants Chase Safe Deposit Company and one Stewart 0. Day, as administrator of the estate of Frank Muska, deceased, eight bearer certificates for 826 shares of Leader A. G-., a Swiss corporation, reposing in a safe-deposit box rented by said Muska. The contents of the box had been undisturbed since Muska’s death in 1942 because blocked under Federal executive orders. Jan Bata (hereinafter called Jan) also made claim to said certificates, as a result of which defendant Day interpleaded Jan as a defendant.

Charles Jucker, Wilhelmine Meier and Hans Berger, constituting a Swiss consortium (or partnership), were also inter-pleaded. Their interest, as will hereinafter appear, is not proprietary and they have neither claimed the shares nor appeared in this action. Nor did defendant Day make any claim to the shares. Defendant Chase Safe Deposit Company was allowed to withdraw from the action. Thus the opposing claimants were Marie and Tom on the one hand and Jan on the other. In such a situation, the action became one in equity wherein the opposing claimants were brought together to litigate the question which of them had the better right ” to the securities in controversy (Clark v. Mosher, 107 N. Y. 118, 122).

The 826 Leader shares, which are all that is actually involved in this suit, represent, according to the original issue of 2,000 shares, about a 41% interest in the corporation, which is the top holding company in the Bata enterprises. Marie and Tom claim the shares as statutory heirs, or, in civil law, the “ universal successors ”, of Thomas. Jan’s claim has varied. He first asserted an oral contract with Thomas, as to which the courts below have decided adversely to him, and we are of course bound by such findings. He then claims that by virtue of two documents — an alleged written contract dated May 10, 1931, and an alleged will dated May 19, 1931 — as well as the subsequent conduct of plaintiffs, he is now the owner of said shares. j

Special Term found in favor of plaintiffs, and the judgment was affirmed by the Appellate Division, the latter court dividing sharply, however. The affirmance was not upon the same theory as adopted in the findings of Special Term, and some of such findings were specifically reversed. Special Term found for plaintiffs upon the theory that Jan had defrauded them into the belief that he was owner of these shares and all other Bata business property, by virtue of a sale of the same to him. The Appellate Division based its affirmance upon the findings of Special Term, except those with respect to plaintiffs’ lack of knowledge of certain facts and Jan’s fraud committed prior to 1939, a critical year in their relationship. In these respects it made contrary findings and additional findings of its own to which we will refer later. The dissenters in the Appellate Division voted to dismiss the complaint and granted relief to neither party, thus permitting the shares to remain with the Chase Safe Deposit Company.

At the outset, we should point out that the weight of the evidence is not before us, in view of the affirmance of the judgment (Matter of Kaplan [Greenman], 294 N. Y. 584). Those Special Term findings reversed by the Appellate Division are therefore out of the case, and appellant concedes that the only real question here presented is whether or not there is evidence to sustain the unreversed Special Term findings, the findings made by the Appellate Division and the disposition based thereon.

As already noted, Thomas Bata was an industrial genius. He converted the country town of Zlin into a large industrial center. In the year 1931 the Zlin company in Czechoslovakia, of which he was then virtually the sole proprietor, was incorporated as Bata a. s., and later in the same year Leader A. G. was formed as top holding corporation of the foreign companies. Nevertheless, he continued to operate all of the companies according to his own concepts and as though he were the individual proprietor thereof.

His philosophy of management was rooted in his early experiences. The business was originally a partnership with his brother, Antonin, who died in 1908, and his sister, Anna; yet, even among them as partners, he had insisted upon the “ single head ” principle. An additional insight into his attitude toward the business which was his life’s work may be found in the “ moral testament ” which was found with his last will. It was written in 1919, and declares to his successors: “ The first condition for the prosperity of our factory and, therefore, also for the preservation of the property invested in it is, that you should not think that the factory is only yours and only for you. * * * as soon as you will think only of yourselves, as soon as you cease to serve with your factory the commonwealth you will become superfluous and you will fall inevitably.”

This admonition was undoubtedly written with Thomas’s earlier will of 1918 in mind, though it was preserved and kept with the later will. Under the 1918 will, Tom would have succeeded to 50% of the business, but only after a period during which control would be exercised by others, under carefúl restrictions specifically set forth.

In Thomas Bata’s business there were no titles. He was called ‘ ‘ Chief ’ ’ and he had three top assistants — Cipera, Muska and Jan. Cipera was Thomas’s chief executive assistant, acting as his second in command. He was also chief fiscal officer. He entered, the organization in 1919. Muska was “ general financial adviser ” to the Bata companies, and was the author of the plan of interlocking companies of which Leader was at the top. He was recognized as Thomas’s “ attorney in fact and confidential man ”. Jan had commenced working for Thomas at the age of fourteen and had a thorough training in the business. He acted as a sort of “ trouble shooter ”, particularly as to new construction outside of Czechoslovakia.

We have already mentioned the incorporation of Leader A. G-. in 1931. That was part of an attempt to put the enterprise in order from an organizational point of view, as well as to protect the increasing foreign interests in the uncertain political setting of the times. It was organized by a Swiss attorney, Dr. Wettstein, and Leader is a Swiss corporation. One of the dominant purposes behind the organization of Leader was concealment of Thomas’s ownership of the foreign companies, as was found by the lower courts. Transactions were conducted in such a way that it appeared that Thomas had loaned Wettstein and his partners a sum of money, for which Leader shares had been pledged to Thomas as security. Thomas was protected by rights to purchase the shares for the amount of the “ debt ”, and by the agreement of Wettstein and the other members of the consortium to carry out his orders in connection with the operation of Leader.

Leader took over majority ownership in the foreign companies, and Thomas retained minority interests therein. The same was done with the shares of companies thereafter organized. Physical possession of 1,996 Leader shares (of which the 826 shares in suit are a part) was taken by Thomas and retained by him, apparently in the custody of Muska. Four qualifying shares were retained by Wettstein and his associates. Subject to the aforesaid arrangement between Thomas and Wettstein, very careful precautions were taken that the management of Leader should have its legal situs in Switzerland.

On July 12, 1932, when Thomas died in the airplane crash, Tom was only seventeen years of age, but had already commenced his apprenticeship in the business and was then occupied at the Swiss factory. His mother was not a businesswoman, but concerned herself with its “ social department ”. Thomas’s relations with his wife and son were apparently of the best, and the trial court so found. The crash occurred early in the morning, almost immediately after the take-off from Zlin. Jan and Cipera rode back together from the scene of the tragedy, and discussed the future of the business. Later that day, the safe in Thomas’s office was opened with a key which had been taken from his person. In that safe were found two documents. One of said documents was in an envelope addressed to Jan. After opening the envelope, the enclosed document was signed by those present and then dated by them; it bore its own date of May 10, 1931, was in Thomas’s handwriting, and read;

“ May 10, 1931

I, the undersigned Tomas Bata, sell to you J. A. Bata, and you purchase from me all shares of Bata a. s., Zlin, and also all shares of the building company ‘ Zlin ’ also all shares of the company ‘Tisk ’ and also participations of the Libstat establishments. Of foreign companies I sell you the following shares or participations.

[List follows]

I sell to you further also shares of the domestic companies:

[List follows*]

From these values the landed property of Loucka and Lazy is excluded, also my dwelling house in Zlin.

Except for these named values [four words crossed out] I sell to you all [misspelled word ‘ my ’ crossed out] my property whatsoever even if it is not named here for the amount of Kc. 50,000,000 fifty million Kc. in Czechoslovak currency.

This purchase price you are obligated to pay in cash within one year after taking over the companies and to pay 5% interest per annum.

/Sgd./ Tomas Bata

Further from the sold property the debt which we have against the City of about 4,300,000 is excluded, that is to say, by this amount the purchase price is increased and J. A. Bata is obligated to pay this amount to the City of Zlin.

/Sgd./ Tomas Bata ”

The trial court found that Jan appeared surprised when he read the paper. Dr. Foerster, a notary then present, commented to the effect that if the paper was a contract, it should be signed by both parties. Jan then stated that that could be done and he accordingly inscribed the words: “I agree and purchase ”, with his signature. On the following day Jan amended his written addendum, placing above it the date, July 13, 1932, and adding: “ respectively, I agreed and purchased per oral agreement ” (emphasis supplied). The original document was turned over to the notary for filing in his official registry. On July 18th, Jan sent a copy of the document to the tax authorities with a letter in which he erroneously stated that he had received it from Cipera on July 13th. Jan testified that the paper was in effect a memorandum of an oral agreement of sale which he had made with Thomas. Special Term rejected that testimony and indeed found Jan wholly unworthy of belief ”, The Appellate Division also found that there had been no actual sale, oral or written.

The other document found in the safe was also in the handwriting of Thomas, and was his last will, dated May 19, 1931. In accordance with Czech law, it was opened on July 13th and read to the heirs. At the same time the moral testament and two prior wills were read. The last will read as follows:

My last will!
Made on the day 19/5 1931.
My property as of today consists of A claim against J. A. Bata
for all shares in domestic and foreign companies sold ICc. 50,000,000
My dwelling house in Zlin 100,000
Landed Estates Loucka and Lazy and Schmegerle 3,000,000
Claim against the City of Zlin — approximately 4,300,000
57,400,000
From this my property I bequeath
To my wife Mrs. Marie Bata the landed estates Loucka Lazy Schmegerle - - 3,100,000
Further in cash - - ICc. 5,000,000
To my son Tomas Bata his legitimate quota . ICc. 22,000,000
with the stipulation that this property of his shall be administered by his mother until he attains 22 years of age.
The proceeds shall be used for his education and the remainder shall be deposited for his benefit. ---
30,100,000
Carried forward 30,100,000
To my sister Anna Schiebel, I bequeath 1,500,000
To the City of Zlin the debt with Bata a. s. will be paid by J. A. Bata 4,300,000
The balance Kc. 21,500,000
57,400,000
I give to my fellow-workers
This amount [crossed out: is payable ’] is to be paid within 5 years with 5% interest [crossed out: ‘ to be paid in cash ’] to the Bata Workers Aid Fund and shall be administered in the spirit of the by-laws now in force.
It is understood that I have drawn up this last will while in full possession of my mental powers, clear minded and without duress and in my own hand.
/Sgd./ Tomas Bata
My previous testament is thereby naturally deprived of its validity.
/Sgd./ Tomas Bata.”

Both lower courts have found that neither the May 10th writing nor the will constituted a valid, enforcible contract under Czech law. Although we are bound by such findings, it is interesting to note that in the settlement of the estate inheritance taxes, only its alleged claim against Jan under the May 10th writing was taxed, but these taxes were actually paid by Bata a. s. and not by Marie and Tom. As to the business property, Jan claimed ownership pursuant to an oral contract, which would not have been subject to any tax. The tax officiáis rejected this contention, bnt in effect treated the sale as a written contract, subject to a 2% tax. Upon this basis, a compromise assessment of the business property was made and the 2% tax paid. The assessment was approximately 274,500,000 crowns, or $8,235,000, considerably less than the thirty to forty million dollars found by Special Term to be the worth of the properties at the time of Thomas’s death. Had this all been deemed Thomas’s estate, the tax would have been enormous, beginning at 20%.

During the year following Thomas’s death, the estate went through the civil law equivalent of our probate proceeding. In Czechoslovakia, such a proceeding is nonadversary. Marie and Tom took as statutory heirs, since the will contained only specific bequests. After he reached the age of eighteen, Tom was declared of age. He and Marie thereafter accepted the estate unconditionally, under which form of acceptance the heirs accept full liability for the decedent’s obligations, with the result that there need be no further judicial proceedings in relation to the estate, nor a court inventory. When the court delivers the estate to the heirs, they take title to all property of the decedent, whether known or unknown, subject to legacies and debts, as there is no administrator or executor in their civil law.

Since the written contract of May 10, 1931, was held invalid by the courts below under the Czech law, the estate had no legal claim against Jan. And, although the holographic will was valid under Czech law, yet, since it disposed of a non-existing asset only, Thomas Bata’s estate devolved according to law to his widow and son by way of intestacy. It follows that, subject to the payment of debts and legacies, plaintiffs became the owners of Thomas’s estate as a matter of law. The only remaining question is whether the Leader shares in suit were transferred to Jan by any acts of Marie and Tom thereafter.

Section 380 of chapter 3 of Part 2 of the General Civil Code of Czechoslovakia provides; “ No ownership dan be acquired without a legal basis and without a legal method of acquisition ”. The evidence is clear that no transfer or assignment of those shares was made by Marie and Tom to Jan. It is claimed however that they passed by estoppel as part of a thirty- or forty-million-dollar estate.

Much of the voluminous evidence in this case related to this claim. It will serve no useful purpose to review it in detail. Suffice it to say that there was evidence in the nature of acknowledgments by Marie and Tom tending to support the claim. As to the tax and probate proceedings in the Czech court, however, the courts below have found that they did not result in any binding adjudication as to the validity of the so-called written contract of sale of May 10, 1931, under Czech law. It is also true that Marie and Tom received interest on and installments of their so-called “ legacies ”, but these came not from Jan personally, but out of their own inherited estate. Moreover, in some cases there is evidence of actual transfers or consents by Marie and Tom to Jan, as, for example, with respect to the British Bata shares, the New York shares, and the antedated agreements and joint wills with respect to the Bata a. s. shares prepared in the early days of the war when Jan asked Marie to return to Czechoslovakia to protect the Zlin factory from confiscation. The status of these securities, however, must be evaluated in their own setting. But there were no such transfers by Marie and Tom of the Leader shares in suit. Everyone concededly recognized Jan as the chief, including Marie and Tom, without question or inquiry until the year 1939, when Jan sought to discharge Tom for a trifling reason.

On the other hand, in 1940, when Jan was on the British blacklist, he told William Jephcott, associated with Canada’s Alien Property Custodian, that he had no knowledge of the ultimate beneficial ownership of said Leader shares. He testified that the following year, when he was placed on the American blacklist, and before his departure for Brazil, where he remained throughout the war, he gave the Leader shares in suit to Muska; but Muska made a formal declaration to the Federal Reserve Bank that he had received these shares from Jan to be held subject to instructions from Jucker (who claimed to know nothing about the actual proprietary interest); that Jan told Muska that he had received them from Jucker for safekeeping; and that Jan had also told him that he (Jan) had no personal proprietary interest therein. Though he claimed to own the Bata shares which he transferred to Marie, he agreed to pay her $170,000 upon their return.

We find a hopeless conflict in the evidence with respect to the claimed estoppel. Whether or not upon this record Marie and Tom were estopped is clearly a question of fact. The Appellate Division had the right to determine as it did that the conduct of the parties did not alter the actual devolution of these shares, and that an equitable estoppel had not been established with respect to them. We may not disturb these findings.

We agree with the court below in its affirmance of the trial court’s findings and with its reversal of the other stated findings of Special Term. Nor can we say as a matter of law that there is no basis for their finding “ That the evidence fails to establish that Jan A. Bata ever had actual or constructive possession of the 826 Leader A. G. shares in suit under claim of right

Inasmuch as, under the law of Czechoslovakia, Thomas’s property devolved to his widow and son, and the Appellate Division has held that they were not estopped from claiming the Leader shares in suit by their conduct, we have no alternative but to affirm. Upon this record as it comes to us, Marie and Tom “ had the better right ” to the shares in suit (Clark v. Mosher, supra). We limit our decision, however, to these shares only.

The judgment of the Appellate Division should be affirmed, with costs.

Lewis, Ch. J., Conway, Desmond and Dye, JJ., concur with Froessel, J.; Fuld, J., dissents and votes to reverse and dismiss the complaint for the reasons set forth in the opinion of the two dissenting Appellate Division Justices; Van Voorhis, J., taking no part.

Judgment affirmed.

       The Leader shares were not mentioned in these lists.


author: Van Voorhis, J. Desmond, J.

text:
    The People of the State of New York, Appellant, v. Hayward Bell, Charles Henry, Willie Young and George Gill, Respondents.
    Argued October 15, 1953;
    decided November 20, 1953.

      Frank A. Gulotta, District Attorney {Henry P. De Vine of counsel), for appellant.
    I. Defendants were “ persons ” subject to subdivision 2 of section 1990-a of the Penal Law. (People v. Kruger, 302 N. Y. 447; People v. Moskowitz, 289 N. Y. 69; People v. Fieri, 269 N. Y. 315; People v. Ahearn, 196 N. Y. 221; People v. Gutterson, 244 N. Y. 243; People v. Shakun, 251 N. Y. 107.) II. Subdivision 2 of section 1990-a does not violate section 1 of article XIV of the United States Constitution or section 6 of article I of the New York Constitution because of uncertainty or indefiniteness. (United States v. Brewer, 139 U. S. 278; Waters-Pierce Oil Co. v. Texas, 212 U. S. 86; Nash v. United States, 229 U. S. 373; International Harvester Co. v. Kentucky, 234 U. S. 216; Omaechevarria v. Idaho, 246 U. S. 343; United States v. Cohen Grocery Co., 255 U. S. 81; Connally v. General Constr. Co., 269 U. S. 385; Whitney v. California, 274 U. S. 357; United States v. Wurzbach, 280 U. S. 396; Chaplinsky v. New Hampshire, 315 U. S. 568; Lanzetta v. New Jersey, 306 U. S. 451; Winters v. New York, 333 U. S. 507; People v. Mancuso, 255 N. Y. 463; People v. Grogan, 260 N. Y. 138.) III. Defendants have not been unlawfully deprived of their liberty. (Ives v. South Buffalo Ry. Co., 201 N. Y. 271; People v. Gillson, 109 N. Y. 389; People v. Havnor, 149 N. Y. 195; People v. Ashley, 184 App. Div. 520; People v. Pierson, 176 N. Y. 201; Matter of McCue, 7 Cal. App. 765; Pinkerton v. Verberg, 78 Mich. 573; City of St. Louis v. Gloner, 210 Mo. 502; Matter of Viemeister, 179 N. Y. 235; Jacobson v. Massachusetts, 197 U. S. 11.) IV. Subdivision 2 of section 1990-a has not been arbitrarily and discriminately enforced against defendants in violation of section 1 of article XIV of the United States Constitution or section 11 of article I of the New York Constitution. (Yick Wo v. Hopkins, 118 U. S. 356; Snowden v. Hughes, 321 U. S. 1; People v. Friedman, 302 N. Y. 75.)

      Jawn A. Sandifer for Hayward Bell and others, respondents.
    I. The statute is unconstitutional because of its vagueness and uncertainty. (Winters v. New York, 333 U. S. 507; Ex Parte Hudgins, 86 W. Va. 526; Lametta v. New Jersey, 306 U. S. 451; American Mach. Co. v. Kentucky, 236 U. S. 660; United States v. Cohen Grocery Co., 255 U. S. 81; Collins v. Kentucky, 234 U. S. 634; International Harvester Co. v. Kentucky, 234 U. S. 216; United States v. Foote, 42 F. Supp. 717; People v. Cooper, 366 Ill. 113; Matter of McCue, 7 Cal. App. 765; People v. Pieri, 269 N. Y. 315.) II. The statute violates the Fourteenth Amendment of the Constitution in that it denies respondents the equal protection of the law. (Howard Sports Daily v. Weller, 179 Md. 355; Oney v. Oklahoma City, 120 F. 2d 861; Whipple v. City of South Milwaukee, 218 Wis. 395; Fitzsimmons v. State, 116 Neb. 440; Tarrance v. Florida, 188 U. S. 519; McPherson v. Blacker, 146 U. S. 1.) III. The statute is unconstitutional in that it deprives defendants of their liberty without due process of law. (Pinkerton v. Verberg, 78 Mich. 573; City of St. Louis v. Gloner, 210 Mo. 502; Matter of McCue, 7 Cal. App. 765; State v. Meyers, 174 Mo. 352; Marx & H. Jeans Clothing Co. v. Watson, 168 Mo. 133; St. Louis v. Roche, 128 Mo. 541; Ex Parte Smith, 135 Mo. 223.)

      Emanuel Bedfield for Charles Henry, respondent.
    I. The construction of the statute is erroneous. II. The statute is indefinite and therefore void. (Lametta v. New Jersey, 306 U. S. 451; People v. Pieri, 269 N. Y. 315.) III. Respondent has been deprived of his liberty. (Edwards v. California, 314 U. S. 160; Hague v. C. I. O., 307 U. S. 496; Crandall v. Nevada, 6 Wall. [U. S.] 35; Williams v. Fears, 179 U. S. 270; Twining v. New Jersey, 211 U. S. 78; Matter of McCue, 7 Cal. App. 765; Pinkerton v. Verberg, 78 Mich. 573; City of St. Louis v. Gloner, 210 Mo. 502.) IV. Respondent has been denied the equal protection of the law.
   Van Voorhis, J.

Defendants-respondents were convicted in the City Court of the City, of Long Beach, Nassau County, of loitering in the railroad station of the Long Island Bail Boad, in violation of subdivision 2 of section 1990-a of the Penal Law. This subdivision reads as follows: “ Any person who loiters about any toilet, station or station platform of a subway or elevated railway or of a railroad, or who is found sleeping therein or thereon and who is unable to give satisfactory explanation of his presence is guilty of an offense. ’ ’

On appeal to the County Court, defendants contended (as they do here) that the last clause “ and who is unable to give satisfactory explanation of his presence ” renders this statute unconstitutional and void for indefiniteness. The County Court dismissed the charge for lack of proof.

Although concurring in the dismissal of the charge against these defendants for lack of proof that they were loitering, we think it appropriate to state our construction of the statute. It is a familiar canon of construction that the intent with which statutes have been enacted “ is to be collected from the context, from the occasion and necessity of the law, from the mischief felt, and the objects and the remedy in view ”. (1 Kent’s Comm., p. 462; People ex rel. Parker Mills v. Commissioners of Taxes of City of N. Y., 23 N. Y. 242, 244.) The legislative intent in this instance appears to have been to prevent persons from infesting subway, elevated or other railway stations who have no occasion to be there. The danger to the public is well understood which arises from the congregation of nondescript characters at such locations, particularly at night, where degenerates, or even “ boisterous, noisy cut-ups,” as they are called in the opinion of the County Court, may easily become anything from a public nuisance to a serious menace. Loitering is a word in common usage, whose meaning is well understood, and prohibiting it in this context signifies that persons should not linger about stations under circumstances which fall short of rendering them implied invitees or licensees of the railroad. This is not to say that nobody is allowed in railroad stations unless he has just arrived or is waiting to depart by train. The existence of a station implies an invitation or license to enter in order to meet or to speed the departure of others, to obtain information concerning trains, to purchase tickets, to check or call for baggage or parcels, to buy tobacco, newspapers, magazines or other articles from concessionaires, to use the toilets for purposes for which they are intended, or to be present on other errands whose legitimacy can be decided as the case arises. Nevertheless, railroads are not to be construed as inviting people to their stations for any and every purpose; under certain circumstances, an entrant may become a trespasser on the premises. Whether he is a trespasser depends upon the facts of the particular case, but the standard of judgment by which this status is to be tested is not so vague or indefinite as to render void the statute creating the offense.

This subdivision of section 1990-a would concededly be valid if it had stated that “ any person who loiters about any toilet, station or station platform of a subway or elevated railway or of a railroad, or who is found sleeping therein or thereon * * * is guilty of an offense.” Whatever doubt exists concerning its constitutionality arises from the omitted words, and who is unable to give satisfactory explanation of his presence ”. We do not agree with the contention of the District Attorney that this clause means that any person found on the premises is required to give an explanation which satisfies any individual police officer by whom he is accosted. If that were true, the statute would furnish no standard of conduct which could be known in advance, and it would be void for uncertainty. Upon the other hand, ambiguities in language are to be resolved so as to sustain the constitutionality of a statute if such a construction can fairly be held to have been within the contemplation of the Legislature (Matter of Devoy v. Craig, 231 N. Y. 186), since the presumption is in favor of the validity of statutes (Matter of Stubbe v. Adamson, 220 N. Y. 459). Acts of the Legislature which are directed against known and stated evils are not to be stretched to cover situations having no real or reasonable relation to those evils (Metropolitan Life Ins. Co. v. Durkin, 301 N. Y. 376, 381), especially when to do so would render the statute unconstitutional.

The questionable words, in this instance, are to be read with the rest of the language of subdivision 2 of section 1990-a of the Penal Law. They merely outline a procedure to be followed in ascertaining whether the person to be charged is loitering about the station or platform. These words do not broaden but restrict the offense. They prevent a defendant from being convicted unless, in addition to other proof that he has been loitering, it appears that he has failed to give an explanation indicating that he is an implied invitee or licensee, after having been questioned on the scene concerning the reason for his presence. An explanation that is “ satisfactory ” means merely one which shows that the person has come there for some purpose which would not render him a trespasser. These words in subdivision 2 which are offensive to defendants neither furnish a basis for conviction standing by themselves, nor do they add any substantive element of the offense. They merely prevent anyone from being convicted of loitering about a station or platform unless, at the time, he was given opportunity to explain his presence by showing that he was not loitering. This is not a substantive factor in what constitutes the offense, but is merely a procedural condition which has to be fulfilled if a prosecution is to succeed.

This construction of the statute may be said to follow the canon known as ejusdem generis, by which the scope of a word or phrase is measured by the surrounding terms. “ Where words of specific or inevitable purport are followed by words of general import the application of the last phrase is generally confined to the subject matter disclosed in the phrases with which it is connected; for it is known by the company it keeps; and though it might be capable of a wider significance if found alone, it is limited in its effect by the words to which it is an adjunct. It may strengthen the general structure, but it cannot exceed the original outline. ’ ’ (McKinney’s Cons. Laws of N. Y., Book 1, Statutes [1942 ed.], § 239, citing People v. Richards, 108 N. Y. 137, People v. Lamphere, 219 App. Div. 422, and numerous other cases.) In the case of this offense, the expression “ any person who loiters ”, which is specific in its import, is followed by the general characterization and who is unable to give satisfactory explanation of his presence ”. Though the latter expression might be capable of a wider significance if found alone, it is limited in its effect by the preceding words to which it is an adjunct; this is merely to say, that a “ satisfactory explanation ” is one which indicates that the suspected person is not loitering.

Upholding the validity of this statute under such an interpretation does not mean, as was stated in the beginning, that the conviction of these defendants should be sustained. The evidence against them is simply that they were observed in the station at about 5:00 p. m., that they did not take the 5:11 train, although they were all there before it left, that they remained in the station until about 5:25 p. m., when the police arrived, whereupon defendants were questioned by one of the patrolmen (Alfred Hickson), who asked them what they were doing in the railroad station, to which each told the same story, that they had just arrived; they were asked if they intended to use the trains and there was no answer other than we have just got here.” They were not seen to buy any railroad tickets, and when searched, no railroad tickets were found upon their persons.

Their conviction was chiefly based upon the idea that they lied in saying that they had just arrived, whereas, in fact, it was proved that they had been there for about three quarters of an hour. Neither patrolman Hickson nor anyone else pursued the inquiry, so that the possibility was not excluded of their having entered the station and remained there for some legitimate purpose other than taking a train.

The order of the County Court of Nassau County, reversing the judgment of the City Court of the City of Long Beach sitting as a Court of Special Sessions which convicted the defendants, and dismissing the information and remitting the fine, should be affirmed.

Desmond, J.

(concurring). I concur for affirmance but on a different ground. I do not reach the question of the sufficiency of the proof to sustain the conviction, since, in my view, the statute itself (Penal Law, § 1990-a, subd. 2) is invalid on its face. If it contained no more than a prohibition against “ loitering ”, it probably could be upheld, since that term has, by long statutory usage, taken on a reasonably definite meaning (see citations under heading “ Loiter; Loitering ” in Wo~ds and Phrases, Vol. 25). But the draftsman of this law, in an excess of either zeal or caution, did not stop at making one guilty of an offense who “ loiters ”, but went on to add a proviso or qualification which, though an essential and integral part of the enactment, is so completely vague and meaningless as to make the whole of the subdivision unenforcible.

One is guilty of an offense, says the statute, who loiters ” about a railroad station, and “ who is unable to give satisfactory explanation of his presence ”. The reference to “ satisfactory explanation ” is an essential part of this criminal statute, and cannot be deleted therefrom by the courts (People v. Teal, 196 N. Y. 372, 378; People ex rel. Collins v. McLaughlin, 60 Misc. 306, 308). It follows that, if the “ satisfactory explanation ” proviso lacks sufficient clarity for reasonable application, the whole statute is bad. We find no reasonably clear meaning for the language: “ unable to give satisfactory explanation of his presence ”. When is the explanation to be given, and to whom? Who is to be satisfied? Is the offense complete when a police officer or a railroad employee rejects the explanation proffered for an otherwise innocent act? Or, worse still, is the adequacy of the explanation to await determination at a trial, with all the intervening trouble, annoyance and expense to the defendant? A statute which leaves such questions open falls below rational standards (People v. Adamkiewicz, 298 N. Y. 176, 179, and cases cited; Winters v. New York, 333 U. S. 507).

The order of the County Court should be affirmed.

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

Order affirmed.