author: Conway, J.

text:
    In the Matter of Taxpayers’ Association of South East Oceanside, et al., Appellants, et al., Petitioners, against Board of Zoning Appeals of the Town of Hempstead et al., Respondents, and Robert H. Telzerow, Intervener, Respondent.
    Argued May 23, 1950;
    decided July 11, 1950.

      Julius L. Goldstein and E. John Ernst, Jr., for appellants.
    I. Unnecessary hardship has not been shown and the grant of a permanent variance was improper as a matter of law. (Matter of Otto v. Steinhilber, 282 N. Y. 71; People ex rel. Werner v. Walsh, 212 App. Div. 635, 240 N. Y. 689; Matter of Hickox v. Griffin, 298 N. Y. 365.) II. The board of appeals had no power to grant a permanent variance in an area zoned for B residence. (Matter of Leone v. Brewer, 259 N. Y. 386; Dowsey v. Village of Kensington, 257 N. Y. 221; Matter of Thomas v. Board of Standards & Appeals, 263 App. Div. 352, 290 N. Y. 109; Matter of St. Basil’s Church v. Kerner, 125 Misc. 526; Matter of Block Holding Corp., 141 Misc. 818; Darweger v. Staats, 243 App. Div. 380, 267 N. Y. 290; Brown v. University of State of N. Y., 242 App. Div. 85, 265 N. Y. 290; Matter of Small v. Moss, 279 N. Y. 288.) III. Intervener, as vendee of an executory contract to purchase land, conditioned on his obtaining a variance, is not an aggrieved person within the meaning of subdivision 2 of section 267 of the Town Law. (Matter of Sherwood Realty Corp. v. Feriola, 193 Misc. 194; Matter of Holy Sepulchre Cemetery v. Board of Appeals, 271 App. Div. 33; People ex rel. Fordham Manor Ref. Church v. Walsh, 244 N. Y. 280; Matter of Aberdeen Garage v. Murdock, 257 App. Div. 645; Matter of Block Holding Corp., 141 Misc. 818; Dowsey v. Village of Kensington, 257 N. Y. 221; Matter of Atlas v. Dick, 275 App. Div. 670.)

      George R. Brennan and Palmer D. Farrington for respondents.
    I. The facts established by the record and those found by the board after a personal inspection of the property warranted the granting of a variance upon the grounds of unnecessary hardship and practical difficulties. (Matter of Otto v. Steinhilber, 282 N. Y. 71; People ex rel. Werner v. Walsh, 212 App. Div. 635, 240 N. Y. 689; Matter of Falvo v. Kerner, 222 App. Div. 289; Matter of Chizner v. Walsh, 236 App. Div. 731, 261 N. Y. 707; Matter of Yonkers Bus, Inc., v. Maltbie, 23 N. Y. S. 2d 87, 260 App. Div. 893; Matter of Levy v. Board of Standards & Appeals, 267 N. Y. 347; Matter of Slater v. Toohill, 274 App. Div. 944; Matter of Thomas v. Board of Standards & Appeals, 263 App. Div. 352; People ex rel. Sullivan v. McLaughlin, 266 N. Y. 519.) II. The board of appeals, pursuant to the enabling act, had the power to grant a permanent variance where practical difficulties or unnecessary hardship existed. (Matter of Reed v. Board of Standards & Appeals, 255 N. Y. 126; Stone v. Cray, 89 N. H. 483; Matter of Ernst v. Board of Appeals, 274 App. Div. 809; Shepard v. Village of Skaneateles, 300 N. Y. 115.)

      Victor Levin for intervener-respondent.
    I. The board of appeals had power to grant a variance where practical difficulties or unnecessary hardship existed. (Town Law, § 261; Dowsey v. Village of Kensington, 257 N. Y. 221; Matter of Eaton v. Sweeny, 257 N. Y. 176; Nectow v. City of Cambridge, 277 U. S. 183; Matter of Reed v. Board of Standards & Appeals, 255 N. Y. 126; Stone v. Cray, 89 N. H. 483; Matter of Ernst v. Board of Appeals, 274 App. Div. 809.) II. The evidence adduced upon the hearing, together with the personal knowledge of the board and the facts found after a personal inspection of the property, justified the granting of a variance. (Matter of Y. W. H. A. v. Board of Standards & Appeals, 266 N. Y. 270; Brackett v. Board of Appeals, 311 Mass. 52; Matter of Otto v. Steinhilber, 282 N. Y. 71; Matter of Hopkins v. Board of Appeals, 179 Misc. 325; Matter of Levy v. Board of Standards & Appeals, 267 N. Y. 347.) III. The judgment of the board was neither capricious, arbitrary nor contrary to law and its judgment should not be set aside. (Matter of Hickox v. Griffin, 274 App. Div, 792.)
   Conway, J.

Intervener-respondent was granted a permanent zoning variance by the board of zoning appeals of the town of Hempstead permitting him to erect a commercial boathouse, repair shop and boat dock in an area, adjacent to Parsonage Creek, zoned as a residence “ B ” district. He is not the owner of the property in question but has executory contracts to purchase two plots of land conditioned upon his obtaining the variance. Petitioners, property owners residing in the immediate vicinity, commenced this preceeding under article 78 of the Civil Practice Act to annul the board’s determination. Special Term and the Appellate Division (one Justice dissenting) confirmed the determination of the board and petitioners have appealed to this court.

We have held that a variance may be granted only upon a showing: (1) that the land cannot yield a reasonable return if used only for a purpose allowed in that zone, (2) that the plight of the owner is due to unique circumstances and not to the general conditions of the neighborhood, and (3) that the use sought will not alter the essential character of the neighborhood. (Matter of Otto v. Steinhilber, 282 N. Y. 71, 76. See, also, Matter of Clark v. Board of Zoning Appeals, 301 N. Y. 86; Matter of Hickox v. Griffin, 298 N. Y. 365; Matter of Y. W. H. A. v. Board of Standards & Appeals, 266 N. Y. 270; People ex rel. Fordham Manor Ref. Church v. Walsh, 244 N. Y. 280.)

Intervener-respondent’s proof failed to meet any of these requirements. There was no proof that the property could not be adapted to conforming uses. No attempt was made to sell or utilize the property for residential purposes, although it was as suitable for residential purposes as other land in the immediate vicinity upon which a number of homes had recently been constructed. Moreover, the record does not show that the property suffers a unique or singular disadvantage, not common to other property in the district, through the operation of the zoning ordinance. Here, the hardship, if any, is general and characteristic of the entire area, and the remedy lies in a revision of the zoning ordinance through legislative action, not by the granting of a variance to a single property owner. (Matter of Levy v. Board of Standards & Appeals, 267 N. Y. 347; Arverne Bay Constr. Co. v. Thatcher, 278 N. Y. 222.) Finally, it is abundantly clear that respondent’s proposed use of the property as a site for a boathouse and dock to test motorboats up and down the creek and the plan to provide parking facilities for thirty to forty automobiles will create conditions distinctly different from those existing in the locality and thus will unquestionably alter the essential character of an otherwise residential neighborhood.

Since, under the applicable principles of law, the variance could not be granted, it is unnecessary to determine the further question, reserved by this court in Matter of Hickox v. Griffin (298 N. Y. 365, 371, supra) whether a vendee in an executory contract to purchase land is a “ person aggrieved ’’ within the meaning of section 267 of the Town Law in a case where, as here, the passing of title is by the contract conditioned upon the granting of a zoning variance.

The order of the Appellate Division should be reversed and the determination of the board of zoning appeals annulled, with costs in this court and in the Appellate Division.

Loughran, Ch. J., Lewis, Desmond, Dye, Fuld and Froessel, JJ., concur.

Order reversed, etc.


source: Caselaw Access Project

license: Public Domain

text:
    In the Matter of Adirondack League Club, Appellant, against Board of Black River Regulating District et al., Respondents. In the Matter of Adirondack Moose River Committee, Inc., et al., Appellants, against Board of Black River Regulating District et al., Respondents.
    Argued May 26, 1950;
    decided July 11, 1950.

      Charles H. Tuttle, Edward Schoeneck, John R. Brook and Sanford D. Stockton, Jr., for appellant in first above-entitled proceeding.
    I. The Court of Appeals should direct the making of a final order in accordance with the Stokes Act which became a law on April 20, 1950. (Robinson v. Robins Dry Dock & Repair Co., 238 N. Y. 271; People ex rel. Clark v. Gilchrist, 243 N. Y. 173; Lane v. Johnson, 283 N. Y. 244; Bradford v. County of Suffolk, 283 N. Y. 503; Matter of Boardwalk & Seashore Corp. v. Murdock, 286 N. Y. 494; Quaker Oats Co. v. City of New York, 295 N. Y. 527; Matter of Tartaglia v. McLaughlin, 297 N. Y. 419; Gilpin v. Mutual Life Ins. Co. of N. Y., 299 N. Y. 253.) II. The validity of the Stokes Act cannot be challenged. (Schieffelin v. Komfort, 212 N. Y. 520; People ex rel. Stenstrom v. Harnett, 224 App. Div. 127, 249 N. Y. 606; Bull v. Stichman, 273 App. Div. 311, 298 N. Y. 516.)

      Curtiss E. Frank, Milo R. Kniffen and Lloyd T. Williams, Jr., for appellants in second above-entitled proceeding.
    Where, after judgment and pending an appeal, a law is enacted which determines all of the issues in a case and requires but one disposition thereof, the appellate court must direct such disposition regardless of any decision it might have made under the pre-existing law. (Robinson v. Robins Dry Dock & Repair Co., 238 N. Y. 271; People ex rel. Clark v. Gilchrist, 243 N. Y. 173; Lane v. Johnson, 283 N. Y. 244; Bradford v. County of Suffolk, 283 N. Y. 503; Matter of Boardwalk & Seashore Corp. v. Murdock, 286 N. Y. 494; Quaker Oats Co. v. City of New York, 295 N. Y. 527; Matter of Tartaglia v. McLaughlin, 297 N. Y. 419; Gilpin v. Mutual Life Ins. Co. of N. Y., 299 N. Y. 253.)

      Daniel Scanlon and Loren E. Harter for respondents.
    I. Ordinarily the Court of Appeals will dismiss an appeal when the question becomes abstract because of a change in circumstances affecting the case after the decision below. (Matter of Norton, 158 N. Y. 130; Butler v. Butler, 236 N. Y. 642; People ex rel. Stencil v. Hull, 246 N. Y. 584; People ex rel. Geer v. Common Council of Troy, 82 N. Y. 575; Delavan v. New York, N. H. & H. R. R. Co., 216 N. Y. 359; Matter of Lyon Co. v. Morris, 261 N . Y. 497.) II. The public importance of this case justifies consideration on the merits, if the Court of Appeals desires to exercise jurisdiction. (Matter of Gage, 141 N. Y. 112; Williams v. Montgomery, 148 N. Y. 519; Matter of Glenram Wine & Liquor Corp. v. O’Connell, 295 N. Y. 336; Matter of Lyon Co. v. Morris, 261 N. Y. 497.)

      Timothy F. Cohan for Oneida County Forest Preserve Council, Inc., and others, amici curiae.

   Conway, J.

These proceedings were commenced by petitioners against the Board of the Black River Regulating District, (hereinafter called Board) to prohibit it from carrying out its proposed plan to take land to construct a reservoir and dam on the south branch of the Moose River (a tributary of the Black River) in Herkimer County, N. Y. It was estimated that the project would require the condemnation of approximately 3,500 acres of land belonging to the Adirondack League Club, one of the petitioners, and the use of 1,500 acres of State-owned land — part of the Adirondack State Forest Preserve. The petitioners challenged the constitutionality of article 7 of the Conservation Law, under which the Board proposed to act. The Appellate Division decided the issues presented in favor of the Board. The petitioners then appealed as of right to this court on the ground that a constitutional question was involved but before the oral argument, and on April 20, 1950, the so-called Stokes Act (L. 1950, ch. 803) became law. That act, effective immediately, provided: “ * * * No reservoirs for the regulation of the flow of streams or for any other purpose except for municipal water supply shall be hereafter constructed in Hamilton or Herkimer counties on the south branch of the Moose river by any river regulating board.” Since the reservoir planned by the Board in the instant case, was concededly not for municipal water supply ’ ’ and since no construction had actually been commenced, the action on the part of the Legislature effectively and completely disposed of the Board’s plan. Accordingly, the petitioners no longer press their appeal to this court. The Board, however, would have this court review the correctness of the Appellate Division’s decision in its favor to the same extent that it would have done if the Stokes Act had not been passed ” even though it concedes that the questions decided are now academic and moot.

The Board recognizes that it is the fixed and settled practice of this court not to decide questions which have become abstract because of a change in circumstances affecting the case after the decision below. (Delavan v. New York, N. H. & H. R. R. Co., 216 N. Y. 359, 362; Matter of Lyon Co. v. Morris, 261 N. Y. 497; Matter of Buffalo Cr. R. R. Co. v. City of Buffalo, 301 N. Y. 595.) It seeks, however, to bring the case within the exception to that rule of practice under which this court on occasion decides questions which, even though moot as between the parties, affect the entire State or transactions of a similar character which are numerous and which are likely to arise with frequency. (Matter of Lyon Co. v. Morris, supra; Matter of Rosenbluth v. Finkelstein, 300 N. Y. 402; Matter of Glenram Wine & Liquor Corp., v. O’Connell, 295 N. Y. 336.) We do not think such a showing has here been made.

In the course of its argument before us, the Board suggested that the Stokes Act should be declared unconstitutional. Whether or not the Board has standing to question the constitutional power of its principal to cut down or otherwise restrict its authority or sphere of action as agent (cf. Barings v. Dabney, 86 U. S. 1; Cranford Co. v. City of New York, 38 F. 2d 52, 54-55; Sweeny v. State of New York, 251 N. Y. 417), is a problem which we postpone for later consideration since it is not now before us.

Since dismissal of the appeal would leave in effect the decision of the Appellate Division as a precedent and since we have not passed upon the merits of that decision, the proper practice here is to reverse the order of the Appellate Division and to remit the proceedings to Special Term with directions-to dismiss the petitions, not on the merits, but solely upon the ground that the issues are moot. (Wilmerding v. O’Dwyer, 297 N. Y. 664.)

The orders should be reversed, without costs and the proceedings remitted to Special Term, with directions to dismiss the petitions solely upon the ground that the issues are moot.

Loughran, Ch. J., Lewis, Desmond, Dye, Fuld and Froessel, JJ., concur.

Orders reversed, etc.


author: Fuld, J.

text:
    The People of the State of New York, Respondent, v. Thomas Daghita, Appellant.
    Argued May 23, 1950;
    decided July 11, 1950.

      Victor Levine for appellant.
    I. Defendant was improperly convicted of first degree larceny because there was more than one taking and the evidence did not show that they were motivated by a single impulse or that defendant on any one occasion had taken goods of the value of over $500. (People v. Cox, 286 N. Y. 137; Regina v. Shepherd, 37 L. J. [M. C.] 45, 11 Cox Cr. Cas. 119; People v. Serna, 43 Cal. App. 2d 106.) II. Defendant was improperly convicted of concealing and of withholding stolen goods.

      Frederick B. Bryant, District Attorney, for respondent.
    I. The conviction of defendant of grand larceny in the first degree is sustained by the evidence. (People v. Sing, 42 Cal. App. 385; People v. Dillon, 1 Cal. App. 2d 224; People v. Fleming, 220 Cal. 601.) II. The conviction of defendant for concealing and withholding stolen goods was not inconsistent with his conviction for grand larceny. (People v. Vitolo, 271 App. Div. 959, 297 N. Y. 575; People v. Rivello, 39 App. Div. 454; People v. Kupperschmidt, 237 N. Y. 463; Carpenter v. Hudspeth, 112 F. 2d 126, 311 U. S. 682; People v. Marino, 271 N. Y. 317; People v. Spivak, 237 N. Y. 460; People v. Morgan, 270 App. Div. 859, 295 N. Y. 991; People ex rel. Wachowicz v. Martin, 293 N. Y. 361; People v. Levan, 295 N. Y. 26; People v. Wilson, 151 N. Y. 403; People v. Cucchiara, 209 App. Div. 326.)
   Fuld, J.

The defendant stands convicted, upon two separate counts, of two separate crimes, the crime of grand larceny in the first degree (Penal Law, §§ 1290, 1294) and the crime of criminally concealing and withholding stolen property (Penal Law, § 1308). There can be no doubt on the record before us that the jury was fully justified in finding defendant guilty of a single continuing grand larceny: the evidence was more than sufficient to establish that he had stolen a considerable quantity of merchandise over a period of time from Montgomery Ward’s Ithaca store and that he had used a large portion of it to furnish his home and to outfit his family. (See People v. Cox, 286 N. Y. 137.)

Manifestly, a thief may not be convicted under section 1308 of the Penal Law of “ buying ” or receiving ” the very goods which he himself had previously stolen. Whether or not he may be adjudged guilty of violating that section by concealing or withholding such property following his theft of it — a question not decided by us in People v. Vitolo (297 N. Y. 575, affg. 271 App. Div. 959) — is the problem for present determination. In our view, section 1290 is aimed at those who steal, section 1308 at those who deal with the thieves in any one of several different ways after the larceny has been committed. The latter section, in other words, is directed at the traditional “ receiver ’’ and at those who hover in the background in order to provide thieves with a market or a depositary for their loot.

Section 1308 recites that a person who “ [b]uys or receives any property knowing the same to have been stolen- or obtained in. any. way under circumstances which constitute larceny ” or “ who conceals [or] withholds * * * . any property, knowing the. same to have been stolen, or appropriated wrongfully in such a „ manner- as to constitute, larceny ”, is guilty of a misdemeanor or. a felony depending upon the value, of the property involved. Use of the phrase, “ knowing the same to have been stolen ”, in connection with one who “buys” or “ receives ” as well as with one who “ conceals [or] withholds ” such property, demonstrates that the statute as a whole is aimed at one other than .the thief. The person who “ buys ” or “ receives ” property, “ knowing the same to have been stolen ”, may not be one who actively participated in the larceny, and there is no reason to suppose that the companion provision aimed at a person who “ conceals ” or “ withholds ” goods, “ knowing the same to have been stolen ”, was designed to describe or refer to a different class of criminals; Had the legislature intended to include thieves within the coverage of section 1308, language "to express that thought was át hand; it could have provided, easily and clearly, that “ a thief or any other person who conceals [or] withholds *" * * any property, knowing the same to have been stolen,” is guilty of a misdemeanor or a felony as the case may be. -■

Indeed, the explicit wording of section 1290 — that a person is guilty of larceny who “ wrongfully takes, obtains or withholds ” property from the possession of the owner — establishes that the act of concealing or withholding is but a continuation of the larceny itself. Every theft, every wrongful misappropriation, of necessity, contemplates and involves a permanent withholding from the owner. To conceal and withhold is the thief’s purpose from the very moment that he gains possession of the property. That being so, the question arises, when does the thief’s act of withholding change from “larceny ’’ under section 1290 to “ receiving ” under section 13081 The answer, we suggest, is “ never.”

And section 1308-a of the Penal Law supplies further confirmation; that provides that, upon a prosecution for buying, receiving, concealing or .withholding stolen goods under the preceding section [§ 1308] one who has sold, offered, or delivered such goods * * * shall not be deemed an accomplice of the person charged with receiving them”. Quite obviously, the legislature in enacting that statute envisaged the case where there were at. least two parties — the thief ‘ who has sold, offered, or delivered ” the goods and the defendant who is charged with “ concealing or withholding stolen goods under the preceding section ”.

This court has, it is true, recognized a difference between receiving ” and withholding ” (see People v. Marino, 271 N. Y. 317; People v. Spivak, 237 N. Y. 460), but it has never held or even intimated that a thief may be adjudged guilty under section 1308. On the contrary, there is a definite suggestion in the Marino case (271 N. Y. 317, 318, supra) that section 1308 assumes the existence of a thief separate and apart from.the violators of that section. Thus, Judge Crane wrote: “ Section 1308 of the Penal Law relates not only to the receiving of property, knowing it to be stolen, but also to the concealing and the withholding of any such property with like knowledge. Nowhere in this section is there a requirement that the thief must be specified, named or even known. The fact that a party has property which he knows to have been stolen, or receives it knowing it to have been stolen, is a crime, although he may never know who is the thief or from whom the property was stolen. (People v. Wilson, 151 N. Y. 403.)” (Italics ours.)

To hold that a thief may be convicted of violating section 1308 will lead not only to consequences that are harsh — by subjecting the thief to punishment both for larceny and for withholding or concealing — but to results that are anomalous. For instance, if a thief who steals $101 is convicted under section 1290, his imprisonment may not be for more than five, years (Penal Law, §§ -1296, 1297), whereas if he is prosecuted and convicted under section 1308, he may be sent to prison for any term up to ten years (Penal Law, § 1308) —which is the punishment actually reserved for those who are convicted under section 1290 of stealing more than $500 (Penal Law, §§1294, 1295). We avoid the unreasonable, the harsh and the anomalous when we construe section 1308 as a statute directed against persons who do not physically participate as thieves in the larceny. That done, the related statutes possess a symmetry well defined and sensible and engender results that are fair and reasonable.

A defendant may, of course, be indicted for both the crime of larceny and the crime of concealing and withholding and it is for the jury to determine whether he is guilty as a thief of the larceny or as a non-thief of concealing and withholding. In the case before us, the trial court erred in permitting the jury to convict the defendant of both. Since, however, defendant’s guilt of the larceny is well-nigh overwhelming, no purpose would be served by requiring a new trial. It is sufficient that we reverse the conviction on the second count- for withholding and concealing and dismiss that count.

The judgments should be modified to the extent of reversing the conviction for criminally concealing and withholding stolen property and of dismissing that count of the indictment and, as so modified, affirmed.

Loughran, Ch. J., Lewis, Conway, Desmond, Dye and Froessel, JJ., concur.

Judgment accordingly. [See 301 N. Y. 744.]


author: Loughran, Ch. J. Desmond, J.

text:
    Rochette & Parzini Corp., Appellant, v. Joseph Campo, Individually and as President of Architectural Sculptors’ and Carvers’ Association, et al., Respondents.
    Argued May 22, 1950;
    decided July 11, 1950.

      Sidney O. Raphael, Francis X. Conlon and Herbert Lasky for appellant.
    I. The concerted action of defendant and its members was part of a conspiracy to boycott and blacklist plaintiff. (American Guild of Musical Artists v. Petrillo, 286 N. Y. 226; James v. Marinship, 25 Cal. 2d 721; Wilson v. Newspaper & Mail Deliveries Union, 123 N. J. Eq. 347; Shimsky v. O’Neil, 232 Mass. 99; Williams v. International Brotherhood of Boilermakers, 27 Cal. 2d 586; Dorchy v. Kansas, 272 U. S. 306; Stuhmer & Co. v. Korman, 241 App. Div. 702, 265 N. Y. 481; Beardsley v. Kilmer, 236 N. Y. 80.) II. The evidence amply sustains the lower court’s decree. III. There is no labor dispute. (Mayer Bros. Poultry Farms v. Meltzer, 274 App. Div. 169; Nash v. Mennan, 275 App. Div. 674; Dinny & Robbins, Inc., v.
      Davis, 290 N. Y. 101, 319 U. S. 774; Busch Jewelry Co. v. United Retail Employees’ Union, 281 N. Y. 150.)

      Herbert S. Thatcher and Arthur R. Hohmann for respondents.
    I. Under the facts there has been no violation by defendant union of section 340 of the General Business Law. (Hunt v. Crumboch, 325 U. S. 821; People v. Gassman, 295 N. Y. 254; Bradley Co. v. Local Union No. 3, 325 U. S. 797; American Fur Manufacturers’ Assn. v. Association Fur Coat & Trimming Manufacturers, 161 Misc. 246, 251 App. Div. 708; Lucomsky v. Palmer, 141 Misc. 278.) II. Refusal to supply plaintiff with union labor and informing third parties of plaintiff’s nonunion status, was not arbitrary. (Interborough R. T. Co. v. Lavin, 247 N. Y. 65; J. H. & S. Theatres v. Fay, 260 N. Y. 315; Williams v. Quill, 277 N. Y. 1.)
   Loughran, Ch. J.

The action is one for an injunction. The defendant union is a voluntary unincorporated association. It is sued in the name of its president pursuant to section 13 of the General Associations Law and is now the only party defendant. The plaintiff, a domestic corporation, is the appellant here. No “ labor dispute ” is involved. (See Opera on Tour, Inc., v. Weber, 285 N. Y. 348, 357.) For the sake of clarity we divide the case into two branches.

(1) The defendant union controls within the metropolitan area of greater New York the supply of union labor that performs exterior work on all types of stone except granite. There was a time when the defendant union accorded collective bargaining rights to the plaintiff, a contractor engaged in the sculpture of stone. But since 1946 all attempts of the plaintiff to enter into a collective bargaining agreement with the defendant union have been rebuffed. The facts just stated are admitted in the pleadings.

At Special Term the court made a decision which in its memorandum opinion is summarized as follows:

The evidence shows that the defendant union is comprised of approximately thirty to thirty-five members, which constitute all of the available manpower in the entire industry, and enjoys a monopoly in the supply of labor in the metropolitan area. '
Defendant’s refusal to furnish labor or manpower to plaintiff is based on its own defined contention that the prices were getting too cheap in the industry and that the defendant union would refuse to furnish labor to subcontractors, and [the defendant union] classified plaintiff as subcontractor, in direct contradiction to the evidence as furnished by plaintiff * * *.
“ Plaintiff has sustained the burden of proof in establishing its case and the defendant offered no evidence to controvert any of the plaintiff’s testimony, and from the evidence it is clear that the acts of defendant constituted a violation of section 340 of the General Business Law and that plaintiff is entitled to the relief sought in the complaint ”.

Accordingly the injunction prayed for — a prohibition against interference by the defendant with the business of the plaintiff — was granted. On appeal by the defendant, however, the judgment was reversed on the law and the facts and the complaint dismissed by the Appellate Division. Prom that judgment of reversal and dismissal, the plaintiff appealed to us.

The above findings of Special Term can have no legal effect. For the antimonopoly provisions of section 340 of the General Business Law are by that section made wholly inapplicable to the formation or activities of a bona fide labor union (People v. Gassman, 295 N. Y. 254). Here the thirty or thirty-five members of the defendant union are charged by the above findings of the Special Term with nothing more than a refusal to work for the plaintiff. This choice was of course only an exercise by them of a legal right and, that being so, no cause of action against the defendant union arose therefrom. Thus the conclusion at which the Special Term arrived on the strength of the above findings — the conclusion that the defendant union enjoyed a monopoly in supplying labor contrary to section 340 of the General Business Law — was wholly inadmissible in point of law; and, we take it, the Appellate Division so held, since that court cited Hunt v. Crumboch (325 U. S. 821).

(2) We pass now to the second branch of the case. Special Term also found: (a) The defendant union £ £ coerced workers, who are not affiliated with the defendant union but affiliated with other unions who are in turn affiliated with the American Federation of Labor, to refuse to work for the plaintiff and attempted to blacklist such employees who purported to work for the plaintiff * * * and that as a result of such threats and coercion such employees desisted from working for the plaintiff * * (b) The defendant union circulated statements * * * that the plaintiff is a non-union stone carving contractor and is incapable of performing any contracts * * * because of its inability to receive any men or execute any agreement involving stone carving.”

The above findings (a) and (b) impute to the defendant union a course of conduct that was calculated to destroy the plaintiff’s business. The right of the plaintiff to carry on that business was a thing of value. If the defendant-union interfered with that right without just cause its action was unlawful (Dorchy v. Kansas, 272 U. S. 306, 311).

Nevertheless, though findings (a) and (b), in our judgment, have a degree of support in the record, we cannot now direct judgment in accordance therewith. For the order entered herein by the Appellate Division — while it declares a reversal of the judgment of Special Term upon the law and the facts — fails to specify the findings of fact that were reversed or modified or to make any new findings. In that state of the record, we must presume that the Appellate Division did not pass upon the questions of fact involved and, that being so, we are in no position to dispose finally of this second branch of the controversy (Civ. Prac. Act, § 602).

The judgment of the Appellate Division should be reversed, without costs, and the action remitted to that court for such disposition of the questions of fact as it may deem necessary or appropriate.

Desmond, J.

(dissenting). I agree with the Chief Judge that the first group of Special Term findings (set out in the first three paragraphs of the Chief Judge’s opinion) cannot possibly be a basis for any judgment against this union. But I think that the second group of findings, as to alleged coercion, blacklisting and false statements about plaintiff, are equally ineffectual as such a basis. Against the background of the testimony here, those findings can mean no more than that the union, having for a lawful reason refused to supply stone carvers to plaintiff, made that fact known to other contractors and to other unions, and told its own members that they would cease to be members if they should take employment with plaintiff. (If the findings mean more than that, they are not supported by evidence.) Wise or unwise, just or unjust, this was legitimate union activity, under all the authorities (People v. Gassman, 295 N. Y. 254; Hunt v. Crumboch, 325 U. S. 821; Civ. Prac. Act., § 876-a; General Business Law, § 340). Defendant Campo, called as plaintiff’s witness, testified without contradiction that the union had passed a resolution that its members would “ work for any builder, all cut stone contractors, all sculptors that are commissioned by the owners or the architects ’ ” but would not ‘ work for any sub-contractors ’ ’ ’ and that the union, on the information it had, considered plaintiff to be a subcontractor. There is no evidence and no finding that the union’s refusal to do business with plaintiff was for any other cause, or that the union was interfering with plaintiff’s rights, maliciously, or without cause or for evil purposes. Thus, the record establishes that that union’s concerted activity was reasonably related to its legitimate interests, and so was lawful (see 4 Restatement, Torts, pp. 49, 57, 60, 62, 63, 97, 121, 122 et seq., cited in appellant’s brief here; see, also, Dorchy v. Kansas, 272 U. S. 306; Opera-on-Tour, Inc., v. Weber, 285 N. Y. 348; American Guild v. Petrillo, 286 N. Y. 226, 231).

The judgment should be affirmed, with costs.

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

Judgment reversed, etc.


author: Desmond, J. Froessel, J.

text:
    In the Matter of John E. Martin, Jr., Individually and as Guardian ad Litem of Joan E. Martin, an Infant, Appellant, against School Board of Union Free District No. 28, Long Beach, Respondent.
    Submitted April 4, 1950;
    decided July 11, 1950.

      Bernard Meyerson, Morris J. Stein and Samuel Spevack for appellant.
    Special Term erred when it stated that section 50-e of the General Municipal Law barred it from exercising its discretion in favor of infant plaintiff. (Tilinsky v. City of New York, 255 App. Div. 815; Matter of Nori v. City of Yonkers, 274 App. Div. 545, 300 N. Y. 632; McVeety v. City of New York, 87 N. Y. S. 2d 631; Matter of Hector v. City of New York, 193 Misc. 727; Matter of Young v. Board of Educ., Vil. of Lancaster, 193 Misc. 216; Matter of Curtin v. City of New York, 196 Misc. 587.)

      Edward A. Harmon for respondent.
    The application was properly denied. (Matter of Young v. Board of Educ., Vil. of Lancaster, 193 Misc. 216; Matter of Hector v. City of New York, 193 Misc. 727; Matter of Nori v. City of Yonkers, 274 App. Div. 545; Staszewski v. City of Rochester, 271 App. Div. 19; Matter of Ferris v. Board of Educ., Towns of Roxbury & Gilboa, 195 Misc. 871.)
   Desmond, J.

In 1945 (L. 1945, ch. 694) to put an end to much conflict and confusion in the statutory and decisional law applicable to notices of claim against public corporations, the Legislature enacted section 50-e of the General Municipal Law. That statute was intended to revise completely, and to set up in one section, the whole of the law on the subject. In its first three subdivisions, it enacts that, whenever, in a tort case, a notice of claim is required by law as a condition precedent to the commencement of a suit or proceeding against a public corporation, or officer or employee thereof, the notice shall comply with the new section, shall be given within sixty days after the claim arises, shall set forth certain detailed information, and must be served on a person to whom a summons may be delivered. Subdivisions 4, 6 and 7 need not be discussed herein.

Subdivision 5, with which we are concerned on this appeal, confers on the court a limited, and discretionary power, to relieve against failure, under certain circumstances, to file a notice of claim in time. That subdivision, complete in itself, is in full as, follows:

“5. Where the claimant is an infant, or is mentally or physically incapacitated, and by reason of such disability fails to serve a notice of claim as provided in the foregoing subdivisions of this section within the time limited therefor, or where a person entitled to make a claim dies before the expiration of the time limited for service of the notice, the court, in its discretion, may grant leave to serve the notice of claim within a reasonable time after the expiration of the time specified in subdivision one.
“ Application for such leave must be made within the period of one year after the happening of the event upon which the claim is based, and shall be made prior to the commencement of an action to enforce the claim, upon affidavit showing the particular facts which caused the delay, accompanied by a copy of the proposed notice of claim. The application shall be made returnable at a trial or special term of the supreme court, or of the county court, in the county where an action on the claim could properly be brought for trial, and due notice thereof shall be served upon the person or party against whom the claim is made, in the manner specified in subdivision three. ’ ’

Nineteen months after an alleged tortious injury to his daughter, who was twelve years old at the time of the accident, this proceeding was brought by the father to obtain an order permitting the service of a claim on respondent school board, mine pro tune. The petition, to explain the delay, says that the school board’s insurance carrier investigated the matter and promised to adjust the claim but delayed and misled petitioner until the statutory period of a year had elapsed, then refused to pay. Special Term denied the application on the ground that the. court was totally without discretion, under subdivision 5 of section 50-e, above quoted, to grant any such relief, since proceedings therefor had not been begun within a year after the event on which the claim is based. The Appellate Division affirmed but granted leave to petitioner to appeal to this court. We think there is no escape from the conclusion reached by the courts below.

Until the passage of section 50-e there were two well-known defects, or kinds of defects, in the law of New York as to filing notices of claims against municipal and other public corporations. First, there was no uniformity in the numerous special statutes applicable to various municipalities. Second, there was confusion and technicality galore in the court decisions. The Judicial Council, therefore, proceeded to deal with the subject, by way of study, report and recommendations to the Legislature. Its proposal, made in 1943, and later partly adopted and partly rejected by the Legislature as we shall see, was prefaced by this introductory statement: “The requirement of notice is one of the safeguards devised by the law to protect municipalities against fraudulent and stale claims for injuries to person and property. It is designed to afford the municipality opportunity to make an early investigation of the claim while the facts surrounding the alleged claim are still ‘ fresh ’. On the other hand, ‘ these provisions (notice statutes) were not intended as a trap for the unwary and the ignorant. ’ An examination of the decisional law, however, indicates that far too often technicalities in this field have prevented the disposition of honest claims on their merits.” (Tenth Annual Report of N. Y. Judicial Council, 1944, p. 265, inner quotations from 17 Corn. L. Q. 687, 689 [1932].)

To remedy those defects, the Judicial Council sent to the Legislature a proposed new section 50-e, which, however, differed in many ways from the statute actually passed, two years later. The 1943 Council proposal (Tenth Annual Report, pp. 265-267) required filing within ninety days, but, as to claims not filed on time, it made a suggestion which the Legislature completely rejected. That recommendation (found in subdivisions 1 and 4 of the Judicial Council’s proposed section 50-e) would have extended the time for filing, in the case of a claimant who was an immature infant, or mentally or physically incapacitated, until a reasonable time after the cessation of the disability, even though more than ninety days after the tort, and would have provided further amelioration for any tardy claimant by authorizing the court in its discretion, and under certain circumstances, to grant leave, on application by motion made at any time before trial, for service of the notice of claim within a reasonable time after the end of the prescribed ninety days. Significant is the Judicial Council’s discussion (Tenth Annual Report, p. 269) of its recommendation that immature infants, and persons mentally or physically incapacitated, be allowed a reasonable time, after disability’s end for filing. The council, pointed out that “ existing notice provisions in New York do not include an exception in favor of a claimant who is under a legal disability ”, but, citing Murphy v. Village of Fort Edward (213 N. Y. 397 [1915]) and Russo v. City of New York (258 N. Y. 344 [1932]) pointed out, also, that the New York courts had been “ liberal in the construction of these provisions ” and had sustained a notice given within a reasonable time after the disability ceases, although the prescribed period for notice has expired.” The Legislature was thus reminded: first, that none of the existing statutes made specific exceptions because of disability; and, second, that the courts, finding in those statutes neither authorization for, or prohibition against, such favors, had granted to disabled persons extensions of time for filing.

If the Legislature had seen fit to pass the Council’s hill as originally proposed, the .present claimant would be in a position to ask for relief. But the Legislature, did something, .quite-different, as present section 50-e shows on its face, and as the Judicial Council explained in its Eleventh and Twelfth Annual Reports'. The Eleventh Report (pp. 51-52), submitted early in 1945, recounts that the Council’s proposed bill had been introduced in 1943 and 1944, but not passed, and that a “ compromise bill” had been prepared, introduced and reported out by the Assembly Judiciary Committee in 1944, but had been recommitted because of errors of form and because certain municipalities asked for opportunity to study the matter further. That compromise bill ”, with some changes as to the number of days allowed for certain procedures, was enacted in 1945 and is the present section 50-e. The Judicial Council’s Eleventh Annual Report (p. .52) clearly states —as is indeed apparent from the most cursory comparison — that the Council’s proposal that immature infants and others disabled be permitted to file after the end. of disability, had been dropped from the compromise bill. Instead, as the Council reported, the compromise bill provided that the court may use its discretion to extend the time for filing when an infant or person mentally or physically incapacitated is concerned, on condition that application f.or such leave is made within six. months, [one year as actually later enacted] from the date of the .accrual of the claim.” The Council’s Twelfth, or 1946, Report (pp. .21-23) setting out in-full, and commenting on, section 50-e as finally enacted in 1945, again makes it clear that the new law was “ the result of a compromise ”, and points out that the new law demands filing within sixty days ‘‘ with certain exceptions that may, under some circumstances, extend the period up to one year (subd. 5).”

This history of the gestation and:birth of this statute, seems necessary by reason of contentions now made that, despite the statute’s plain language, and despite its specific provisions as to infants and others under disability, nevertheless, so we are told, it is still the law that, long after the end of the one-year period limited by subdivision 5 of section 50-e, a court may still permit late filing, by an infant! The short answer is that the Legislature has seen'fit to deny such a power to the court, and that the Legislature had the undoubted right so to do (Winter v. City of Niagara Falls, 190 N. Y. 198, 203).

References to the cases, such as Murphy v. Village of Fort Edward (213 N. Y. 397) and Russo v. City of New York (258 N. Y. 344, supra) decided before section 50-e became the law, are helpful only to show what the law was before September 1,1945. The Legislature, which was, actually as well as theoretically, familiar with those decisions, and which had before it the Judicial Council’s recommendation that those decisional rules be made statutory, nevertheless, deliberately, and after delay, consideration and compromise, made new and entirely different law on the subject. Wise or unwise, fair or harsh, that law is as binding on the courts as it is on this petitioner and on everyone else.

The maxim or rule of construction‘‘ that the law does not seek to compel a man to do that which he cannot possibly perform ’ ’ (Broom’s Legal Maxims [4th ed.], cited in Walden v. City of Jamestown, 178 N. Y. 213, 217) is sometimes helpful in determining legislative intent, when that intent is in doubt. There is no such doubt here. Furthermore, as to what is or is not possible, it is to be presumed that the Legislature knew, as we all know, that it is not ordinarily impossible for an immature infant, or other disabled person, to have claims filed and suits brought in his behalf. Out of that general knowledge the Legislature fashioned a general law, and we cannot write into it exceptions which the Legislature designedly omitted.

The order should be affirmed, with costs.

Froessel, J.

(dissenting). The question before us is whether section 50-e of the General Municipal Law (L. 1945, ch. 694) is so absolute, unyielding and rigid as to be beyond a construction which admits of an excuse for delay in performance, when caused by the infancy of the injured person, in this case twelve years of age. A majority of the court take the view that it is,- and, though the infant be of tender years,' much too young to do anything for itself, it will lose its right of action if notice of claim is not filed in any event within a year after the happening of the accident. Of what moment is a year to a young child of three or six, or nine or even twelve?

We have held that rights accorded by law to infants are not forfeited because a parent did not perform for an infant where performance was excused because of the infancy,” (Murphy v. Village of Fort Edward, 213 N. Y. 397, 403; Russo v. City of New York, 258 N. Y. 344, 348.) Are we to assume, then, that the Legislature intended that though a child of tender years is incapable of filing a notice of claim, and may not be charged with the parents’ neglect to do so for him, he is in all events to be barred from a right of action that is otherwise saved for him during the entire period of his infancy (Civ. Prac. Act, § 60) despite such impossibility of performance? I cannot agree that such was the legislative intention, notwithstanding its failure to adopt a particular recommendation of the Judicial. Council, to which I shall later refer.-

Long before the enactment of section 50-e, this court had established the rule that claimants might be excused from compliance with the strict letter of similar statutes by reason either of physical or mental disability or of infancy.

In Walden v. City of Jamestown (178 N. Y. 213, 217), we said: ‘ ‘ It is an accepted maxim that the law does not seek to compel a man to do that which he cannot possibly perform. ’ ’ In Winter v. City of Niagara Falls (190 N. Y. 198), the statute provided that notices of claim shall be presented “ ‘within thirty days after the occurrence causing such damages ’ ”, and that the omission to do so “ ‘ shall be a bar to an action against the city .therefor ’ ” (p. 202). Could the injunction of this statute be more definite? Yet we said (p. 203): “ To require the presentation of a claim within a specified time is quite a reasonable provision * * *. The provision is not so rigid as to be beyond a construction, which admits of a substantial compliance with its requirement, or of an excuse for delay in performance, when caused by the inability of the injured person to comply.”

In Forsyth v. City of Oswego (191 N. Y. 441), the statute required that notice of claim be presented within three months after the happening of the event, and that the omission to do so “ ‘ shall be a bar to any action or proceeding therefor against the city.’” (P.443.) Despite the same explicit injunction we again asserted the proposition that the law does not seek to compel that which is impossible.

In Murphy v. Village of Fort Edward (213 N. Y. 397, supra), a notice of claim was filed almost twenty-three months after the injury, despite the provision that no action shall be maintained unless the notice of claim shall have been filed within sixty days after the accrual of the cause of action. We there again recognized that municipal liability for injuries is a matter within the control of the Legislature, and that the requirement that claims be presented within the specified time is a reasonable provision; that said requirement, however, is not absolute and unyielding, and continued (pp. 403, 404): We are of the opinion that immature infancy, which includes the age of five years, is, as a matter of law, a condition of physical and mental inability excusing compliance with the requirement of section 341. It is reasonable to conclude that inability is attributable to a first period of infancy and ability is attributable to a final period, as a matter of law, and through a period lying between those two the question of ability is a question of fact to be submitted to and determined by the jury. * * * The conclusion here reached is, as appears from our prior decisions already cited, within the legislative intention and is just.”

In Staszewski v. City of Rochester (271 App. Div. 19, affd. 296 N. Y. 705) a ten-year-old infant failed to file a claim within thirty days as required by the Charter of the City of Rochester. The charter provided that “ no action may be maintained ” unless this were done — another rather definite injunction. It further provided that the section applies to claims of infants and all other persons.” The city contended that because of that provision infants who had not filed a claim within thirty days were barred. The court pointed out that the New York rule enunciated in prior decisions, excusing an infant from strict compliance with such statutory requirements, was not based on the thought that the section did not apply to infants. On the contrary, our courts have always recognized that these requirements do so apply. But the infant is excused from such compliance only where his immaturity renders him physically or mentally unable to comply.

When the Legislature enacted section 50-e, it must have known that in the Winter and Forsyth cases (supra) the statutes under consideration contained the rather positive language that omission to file a claim in time ‘‘ shall be a bar ’ ’ to any action against the city, and that in the Murphy and Staszewski cases (supra) the statutes provided that in case of such omission no action shall [Murphy case] [may, Staszewski case] be maintained ”, and that we nevertheless held such statutes were not “ absolute and unyielding ”. It must also be deemed to have known what the Judicial Council specifically pointed out immediately following its recommendation in its Tenth Annual Report and Studies, 1944 (p. 269): Existing notice provisions in New York do not include an exception in favor of a claimant.who is under a legal disability. However, the courts of New York have been liberal in the construction of these provisions,; and have sustained a notice given within a reasonable time after the disability ceases, although the prescribed period for notice has expired. The inclusion of the proposed exception substantially codifies the decisional law of New York on this point. The proposal is in accord with analogous statutory provisions of this and other states, and liberal legal thought.”

I do not think we must conclude that,.because the Legislature did not adopt the particular recommendation of the Judicial Council, which embraced, not only infants but physically incapacitated adults as well, that it meant to overrule the decisional law with regard to: immature infants. If it had adopted the .exact language- of-.the Council’s recommendation, the Legislature would have; extended, as to adults, the short period of limitation — usually one year (see Appendix, Tenth Annual Report of N. Y. Judicial Council, 1944, pp. 284-296) —found in "most municipal charters within which the action itself must be begun, and we can readily understand why this was not desired. It is more reasonable to assume, it seems to me, that the Legislature, recognizing the decisional law upon- the subject with regard to immature infants, intended to leave untouched the principle - laid down by our decisions before the enactment of section 50-'e,- which- liberally interpreted statutes much stricter than-the one here under review. I think it is also clear that the purpose of the. statute, which followed conferences with representatives of municipal corporations, was, as the Judicial Council pointed out, “ to rectify the frequent and often gross injustices by which defects in form have prevented consideration on their merits of claims against municipal corporations ”, as well as. the “ unification of the many diverse provisions found in various municipal charters and statutes ” (Eleventh Annual Report of N. Y. Judicial Council, 1945, p. 51).

Despite the limitation of a year found in section 50-e, I am of the opinion that the Legislature did not intend to include within its provisions a class of persons which the law has universally recognized to be utterly devoid of responsibility and for whom, it has provided many safeguards, and that it did not intend to require them to do that which is impossible of performance.

It is a general rule of law that no unjust or unreasonable result was intended by the Legislature, and a statute must be interpreted, if possible, so as to avoid such results (Matter of Breen v. New York Fire Dept. Pension Fund, 299 N. Y. 8, 19; Saltser & Weinsier, Inc., v. McGoldrick, 295 N. Y. 499, 509); in avoiding an unjust result, it is permissible to disregard the literal language of a statute and give it a rational interpretation, consistent with justice and common sense (Kauffman & Sons Saddlery Co. v. Miller, 298 N. Y. 38, 44; People ex rel. Twenty-third St. R. R. Co. v. Commissioners of Taxes of City of N. Y., 95 N. Y. 554, 558-559; People ex rel. Westchester Fire Ins. Co., v. Davenport, 91 N. Y. 574, 584-585; Surace v. Danna, 248 N. Y. 18, 21), even extending to exceptions through implication ” (Matter of Meyer, 209 N. Y. 386, 390).

In accordance with the well-established rule as followed by this court in these situations over a long period of years, and in the light of the above rules of construction, the statute "under review should be interpreted so as to allow the present application to be made, and the court’s discretion to be exercised, beyond the period specified in section 50-e in the case' of this twelve-year-old infant; to hold otherwise would be tantamount to depriving young and immature infants of their right of action. It is no answer to say that it is not ordinarily impossible for an immature infant to have claims filed and suits brought in its behalf. Such an infant’s rights may not be made dependent upon the fidelity of others.

The order appealed from should be reversed, with costs to abide the event, and'the matter remitted to Special Term for further proceedings.

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

Order affirmed.

         See, also, Chavers v. City of Mount Vernon, 301 N. Y. 634. —[Rep.


text:
    The People of the State of New York, Respondent, v. Henry James Gibson, Appellant.
    Argued May 30, 1950;
    decided July 11, 1950.

      Edward Smallwood for appellant.
    The testimony of the complaining witness required corroboration because (1) she was the woman allegedly defiled within the meaning of section 2013 of the Penal Law, and (2) she was an accomplice within the meaning of section 399 of the Code of Criminal Procedure. (People v. Fitzgerald, 244 N. Y. 307; People v. De Angelis, 262 App. Div. 970, 288 N. Y. 630; People v. Lammes, 208 App. Div. 533; People v. Dickerson, 58 App. Div. 202; People v. Sweeney, 213 N. Y. 37; People v. Cohen, 223 N. Y. 406; People v. Swersky,
      216 N. Y. 471; People v. Pollack, 154 App. Div. 716, 209 N. Y. 541; People v. Petrucci, 271 App. Div. 936.)

      Thomas Croucher, District Attorney, for respondent.
    Corroboration is not required for a conviction for incest. (People v. De Angelis, 262 App. Div. 970, 288 N. Y. 630; People v. Jones, 177 Misc. 922.)
   Conway, J.

Defendant has been found guilty on two counts of an indictment charging him with the crime of incest (Penal Law, § 1110) in that he engaged in sexual intercourse with his daughter, then fifteen years of age, in the county of Ontario, New York, on July 1 and July 15, 1947. The evidence against defendant consisted solely of the testimony of the daughter. We need not detail that testimony, for we are agreed that, despite certain self-contradictions therein, the jury could properly find that defendant had committed the crime of incest in this State on the dates noted — unless, as it is urged, the testimony of the daughter was required to be supported by other evidence.

At the close of the People’s case, defendant specifically moved to dismiss these two counts of the indictment upon the grounds that there has been no corroboration of the complaining witness’ testimony, and that she being the accomplice, her testimony must necessarily be corroborated.” The court properly ruled that there had been no corroboration, but it denied defendant’s motion, saying: “* * * I hold that because of her age she is not an accomplice. She was under sixteen years of age at the time the crime was committed, under eighteen in any event, and I hold that she was not an accomplice, and no corroboration need be had * *

At common law, in the case of sexual offenses, it was not necessary that the testimony of the injured female be corroborated (7 Wigmore on Evidence [3d ed.], § 2061). Such testimony was to be cautiously and carefully scrutinized, but if believed by the jury, it could alone support the conviction. The necessity of corroboration, if it exists at all, must thus be found in a specific statute. We have such statutes in the cases of abduction (Penal Law, § 71), adultery (§ 103), compulsory prostitution of wife (§ 1091), compulsory marriage (§ 1455), rape, (§ 2013), seduction 2177) and compulsory .prostitution (§ 2460). Moreover, the unsworn testimony of" a child under twelve years of age must be corroborated (Code Grim. Pro., § 392) and, of course, the testimony of an accomplice must be corroborated (Code Crim. Pro., § 399). There.is, however, no such requirement in article 102 of the . Penal Law, dealing with the crime of incest. , . , ' .

Section 399 of the Code provides: “A conviction cannot be had upon the testimony of an accomplice, unless he be corroborated by such other evidence as tends to connect the defendant with the commission of the crime.” It is argued that the daughter in the instant case was an accomplice, since section 1110 of the Penal Law provides that when persons within the specified degrees of consanguinity commit adultery or fornication with each other, “ each of them is punishable ” (emphasis supplied). We are unable to agree with that contention.We think it clear that a female, under the age of legal consent, cannot, as a matter of law, be held to be an accomplice, even if her participation in the incestuous relationship was wholly voluntary. Such a female could never be found guilty of the crime of incest because the law, for obvious reasons of public policy, declares that she is unable to consent to sexual intercourse, "incestuous or otherwise (see Penal Law, § 2010). This statute is based upon the theory that a girl under eighteen years of age is incapable of consenting to the act ” (Boyles v. Blankenhorn, 168 App. Div. 388, 389, Kellogg, J.). A person who has committed no crime in the eyes of the law cannot, of course, be characterized as an accomplice. (People v. Blank, 283 N. Y. 526, 528.)

We do not wish to be understood as holding that the underage female is not an accomplice because she could not, under our modern criminal procedure, be indicted for the crime. A minor who participates in a crime may be held to be an accomplice whose testimony must be corroborated, even though he could only be prosecuted as a delinquent minor or a youthful offender. (People v. Fitzgerald, 244 N. Y. 307; People v. O’Brien, 125 App. Div. 254.)

Defendant asserts that it is anomalous to hold that the testimony of a female over the age of legal consent who participated in an incestuous relationship must be corroborated, while that of a female below the age of legal consent need not be cdrroborated, since the testimony of the latter, because of childish imagination, and susceptibility to suggestion, may be even more suspect. This court has not yet had occasion to consider the question whether the testimony of an adult female participant in incestuous intercourse is required to be corroborated. But even if we should so hold when the question is presented to us, the resulting “ anomaly ” would be one created by the Legislature which has refrained from requiring corroboration generally in incest cases. In the absence of such a general requirement, the need for corroboration here can arise solely through the operation of section 399 of the Code. As we said in People v. Blank (supra, pp. 528-529), “ * * * the statute requiring corroboration (Code Crim. Proc., § 399) effected no change in the law as to who was an accomplice. It was necessary before the passage of the statute to determine who was an accomplice, since 'the jury had to be instructed as to the weight to be given to that testimony. While, as was said in People v. Mayhew (150 N. Y. 346), the statute introduced a new rule of evidence, the law remained the same as to who was an accomplice.” We would do violence to the accepted and long-established meaning of the word ‘ ‘ accomplice ’ ’ to designate as such a female below the age of legal consent in an incest case who, as a matter of law, could not acquiesce in the criminal act. If this results in an anomaly ”, it is one to be remedied by the Legislature, and not by the courts.

The judgment should be affirmed.

Loughran, Ch. J., Lewis, Desmond, Dye, Fuld and Froessel, JJ., concur.

Judgment affirmed.


author:
      Per Curiam.
     Desmond, J.

text:
    John La Rocca, Respondent, v. Stephen J. Farrington et al., Doing Business as S. J. Farrington Iron Works, Appellants, and Turner Dock Transfer Co., Inc., Respondent and Appellant.
    Argued May 17, 1950;
    decided July 11, 1950.

      Patrick E. Gibbons and Patrick J. McCann for Stephen J. Farrington and another, appellants.
    I. The Appellate Division was in error in reversing the decision of the trial court. (Muscelli v. Starr Contr. Co., 296 N. Y. 330; Caldarola v. Moore-McCormack Lines, 295 N. Y. 463; Cullings v. Goetz, 256 N. Y. 287; Mayor of City of Albany v. Cunliff, 2 N. Y. 165; Santise v. Martins, Inc., 258 App. Div. 663; MacPherson v. Buick Motor

      Co., 217 N. Y. 382; Hoisting Engine Sales Co. v. Hart, 237 N. Y. 30; Liverani v. Clark & Son, 231 N. Y. 178; Seas Shipping Co. v. Sieracki, 328 U. S. 85.) II. The trial court erred in refusing to charge as requested by defendant Farrington. (Liverani v. Clark & Son, 231 N. Y. 178; O’Doherty v. Postal Telegraph-Cable Co., 134 App. Div. 298; Sieracki v. Seas Shipping Co., 149 F. 2d 98.) III. Defendant Farrington was entitled to recover over against defendant Turner on its cross complaint. (Hoisting Engine Sales Co. v. Hart, 237 N. Y. 30; McSpedon v. Kunz, 271 N. Y. 131; Eisenbach v. Gimbel Bros., 281 N. Y. 474; Union Stock Yards Co. v. Chicago, B. & Q. R. R. Co., 196 U. S. 217.)

      William L. Shumate and Samuel E. Swiggett for Turner Dock Transfer Co., Inc., appellant and respondent.
    I. Defendant Turner having entirely divested itself of possession and control of the crane under a lease entered into many months prior to the accident owed no duty to plaintiff with respect to the condition of the chain. Therefore, the trial court was correct in dismissing the complaint as against Turner. (Muscelli v. Starr Contr. Co., 296 N. Y. 330; Auten v. Bennett, 183 N. Y. 496; Cullings v. Goetz, 256 N. Y. 287; Kohrn v. Boyer Lighterage Corp., 262 App. Div. 762; Witty v. Matthews, 52 N. Y. 512; Mirsky v. Seaich Realty Co., 256 App. Div. 658; Hartfield v. Roper, 21 Wend. 615; Eklof v. Waterston, 132 Ore. 479; Pharm v. Lituchy, 283 N. Y. 130; Rufo v. South Brooklyn Sav. Bank, 268 App. Div. 1057; Noone v. Perlberg, Inc., 268 App. Div. 149, 294 N. Y. 680.) II. As to defendant Turner the verdict was contrary to the law as charged and it was, therefore, error to reinstate it unless it can be said as matter of law that Turner had violated a duty owing to plaintiff. III. In no event would Farrington be entitled to recover over against Turner on common-law principles of indemnity for the reason that the two defendants, if guilty of any fault at all, are guilty of the same fault, i.e., failure to discover and remedy the defect. (Hoisting Engine Sales Co. v. Hart, 237 N. Y. 30; League Cycle Co. v. Abrahams, 27 Misc. 548; Union Stockyards Co. v. Chicago B. & Q. R. R. Co., 196 U. S. 217.)

      Ralph Stout, Hyman Goldberg and Louis Rothbard for plaintiff, respondent.
    Upon the evidence the question of defendants’ negligence was one of fact which was properly submitted to the jury. (Thomas v. Winchester, 6 N. Y. 397; Loop v. Litchfield, 42 N. Y. 351; Devlin v. Smith, 89 N. Y. 470; Connors v. Great Northern Elevator Co., 90 App. Div. 311, 180 N. Y. 509; Kahner v. Otis Elevator Co., 96 App. Div. 169, 183 N. Y. 512; MacPherson v. Buick Motor Co., 153 App. Div. 474, 217 N. Y. 382; Junkermann v. Tilyou Realty Co., 213 N. Y. 404.)
   Per Curiam.

On the facts of this case — which are sufficiently stated in the dissenting opinion filed herewith — it was error for the trial court to set aside the jury verdict in favor of the plaintiff and dismiss his complaint. We agree that the Appellate Division quite properly reinstated the verdict against the defendants-appellants, the Turner and Farrington companies, on the authority of MacPherson v. Buick Motor Co. (217 N. Y. 382). The uncontradicted testimony of the expert that the crack in the fracture face of the link that broke had existed for at least two years and its existence was reasonably discoverable by visual inspection, established, prima facie, that use of the crane was imminently dangerous to any person in the vicinity of its boom (cf. Adams v. White Constr. Co., 299 N. Y. 641). The principle of the MacPherson case (supra) is ho longer limited to manufacturers but has been extended to suppliers ”as well, a designation which also covers owners and lessors (see Restatement, Torts, §§ 388, 408; Connors v. Great Northern Elevator Co., 90 App. Div. 311, affd. 180 N. Y. 509; Richards v. Texas Co., 245 App. Div. 797, motion for leave to appeal denied 268 N. Y. 728; MacKibbin v. Wilson & English Constr. Co., 263 App. Div. 1014, motion for leave to appeal denied 288 N. Y. 738). Maritime cases such as Muscelli v. Starr Contr. Co. (296 N. Y. 330) and Caldarola v. Moore-McCormack Lines (295 N. Y. 463) are distinguishable under the maritime ruling placing full responsibility upon a charter party.

The fact that the plaintiff’s employer,’as lessee of the crane; had an equal opportunity to discover the defect and would thus be within the compass of the MacPherson doctrine does not serve to relieve the owner of liability (Wanamaker v. Otis Elevator Co., 228 N. Y. 192).

The judgment should be affirmed, with costs.

Desmond, J.

(dissenting). Plaintiff, employed by a shipyard company (which is not a party here) was injured as the result of the breaking of one link of a chain which held in place the boom of a heavy-duty tractor crane. The crane was being used on an unloading job which plaintiff and his coemployees were doing. The crane, about ten years old, belonged to defendant-appellant-respondent Turner, which made a business of renting out such equipment and had rented it, about thirteen months before the accident, to defendant-appellant Farrington, which kept it for two days only, then sublet or rerented it to plaintiff’s employer, which used it regularly, from then on, in lifting heavy burdens, some of them much heavier than the one which was being handled when the link gave way. The crane operator was a coemployee, with plaintiff, of the shipyard lessee.

The link which broke was one of six which together formed a chain which, made fast to a hook, held in place the boom of the crane when at its desired height. No one previously had noticed anything wrong with the link, although the chain was handled by the crane-operator every morning and night. After the accident the broken link was examined by an expert who testified as plaintiff’s witness. From his examination of the partly rusted fracture face ”, he concluded that there had been a crack of some size in the link for at least two years before this breaking, that this crack had probably existed as a tiny defect from the time of manufacture, that the crack had grown slowly, that its presence but not its extent would have been visible to careful inspection for more than two years, and that there were several well-known methods of testing such a link, to determine the fitness of the metal.

There was proof that defendant-appellant-respondent Turner, the owner, had agreed to, and did, repair the crane, during the rental periods, when repairs were necessary and when Turner was requested to make them.

, The Appellate Division reinstated plaintiff’s verdict against the original and subsequent bailors (Turner and Farrington), which verdict the Trial Justice had set aside. The Appellate Division’s opinion says that there was no express warranty by either .bailor and that plaintiff, not being a party to either letting, could not rely on the “ implied warranty ” of fitness described .in Hoisting Engine Sales Go. v. Hart (237 N. Y. 30). Nevertheless, the Appellate Division saw a basis for upholding the verdict. It ruled that both Turner (the owner bailor) and Farrington (the subsequent bailor) were joint tort-feasors in that each had breached a duty of using reasonable care to see that the bailed chattel was safe for its intended use, citing MacPherson v. Buick Motor Co., 217 N. Y. 382; Richards v. Texas Co., 245 App. Div. 797, motion for leave to appeal denied 268 N. Y. 728; and Restatement, Torts, § 408, comments a and b. I do not find in this record any proof of any such breach of duty by either defendant.

This was not the case of an experienced supplier leasing or furnishing to an inexperienced user, a machine or appliance apparently safe but actually harboring a defect which the owner knew of, or should have known of, but which the bailee was totally unaware of, and without means of discovering. To such a situation there would apply, I will assume, the rule of section 408 of the Restatement of Torts, which says in effect that such a supplier “ for immediate use ” must use reasonable care either to make the thing safe or to disclose its actual condition. But the lettings here were arms-length transactions between business firms experienced as to cranes. None of them actually knew of the crack. But it was as open to discovery by the second bailee, plaintiff’s employer, as by either of appellants. Indeed, there was much more reason and occasion for plaintiff’s coemployees to see it, for they handled this very chain twice every day, whereas Turner had not been in possession of the crane for more than a year, and its men came around to make repairs only when and if summoned, while Farrington had the crane for two days only, more than a year before the breaking of the link.

Such cases as MacPherson v. Buick Motor Co. (supra), and Noone v. Perlberg, Inc. (294 N. Y. 680), are not at all in point here, since they deal with the liability of manufacturers, for hidden defects in dangerous articles. The whole theory of plaintiff’s case here is that this was a readily discoverable crack, which was there to see before Turner rented the crane out, and which slowly and gradually continued to increase in size and danger during the year plaintiff’s employer was using the crane.

Other cases cited by respondent are equally wide of the mark. Connors v. Great Northern Elevator Co. (90 App. Div. 311), is a respected authority, but there the supplier, though warned of the precise danger, furnished an unsafe steam shovel. Richards v. Texas Co. (supra), like Junkermann v. Tilyou Realty Co. (213 N. Y. 404), involves lettings where a public use, or public danger, is anticipated. It seems to me that the most stringent rule of liability that could reasonably be applied here is the one stated in section 388 of the Restatement of Torts:

“ Chattel Known to be Dangerous for Intended Use.
One who supplies directly or through a third person a chattel for another to use, is subject to liability to those whom the supplier should expect to use the chattel with the consent of the other or to be in the vicinity of its probable use, for bodily harm caused by the use of the chattel in the manner for which and by a person for whose use it is supplied, if the supplier
(a) knows, or from facts known to him should realize, that the chattel is or is likely to be dangerous for the use for which it is supplied;
(b) and has no reason to believe that those for whose use the chattel is supplied will realize its dangerous condition; and
(c) fails to exercise reasonable care to inform them of its dangerous condition or of the facts which make it likely to be so. ’ ’

If that be the New York law, then neither defendant is liable, since the ultimate bailee, plaintiff’s employer, was in the best position to acquire actual knowledge of the dangerous condition. I just do not see what duty of care is breached by a bailor, who, turning over an obviously long-used machine to an experienced bailee, fails to make, before the letting, the kind of inspection which the bailee can, with equal facility and for much stronger reasons, make for himself.

As to both realty and personalty, the common-law rule is that liability for defects is ordinarily cast, not upon the owner out of possession, but upon the possessor, the owner pro hac vice (see Muscelli v. Starr Contr. Co., 296 N. Y. 330). The cases where the actual but absent owner must bear the blame are exceptional ones, where, because of the inexperience of the lessee or the immediacy of the intended use, it would be unreasonable to expect the lessee to make a careful inspection (see Restatement, Torts, § 408, comment a). When the lessee is competent to make an efficient inspection and has had a reasonable length of time to make it, then reason and justice dictate that any liability of the lessor comes to an end. Such is the rule of the real property cases (Pharm v. Lituchy, 283 N. Y. 130) and should be the rule here.

The judgment should be reversed, and the complaint dismissed, with costs.

Loughran, Ch. J., Lewis, Conway, Dye and Froessel, JJ., concur in Per Curiam opinion; Desmond, J., dissents in opinion in which Fuld, J., concurs.

Judgment affirmed.


text:
    Ruth Pomerance, Respondent, v. William Pomerance, Appellant.
    Argued May 29, 1950;
    decided July 11, 1950.

      Samuel Bader and Abraham Ralph Kartzman for appellant.
    The complaint does not state facts sufficient to constitute a cause of action. (Goldman v. Goldman, 282 N. Y. 296; Schmelzel v. Schmelzel, 287 N. Y. 21; Crowell v. Crowell, 135 Misc. 530, 229 App. Div. 771; Chamberlain v. Cuming, 99 App. Div. 561, 184 N. Y. 526; Kyff v. Kyff, 286 N. Y. 71.)

      Morris E. Packer for respondent.
    The complaint states a cause of action. (Hungerford v. Hungerford, 161 N. Y. 550; Dolan v. Dolan, 270 App. Div. 788, 296 N. Y. 707; 271 App. Div. 851, 296 N. Y. 860; Kyff v. Kyff, 286 N. Y. 71; Tirrell v. Tirrell, 232 N. Y. 224; Harding v. Harding, 203 App. Div. 721, 236 N. Y. 514; Hamlin v. Hamlin, 224 App. Div. 168; Brooklyn Trust Co. v. Lester, 239 App. Div. 422; Zysman v. Zysman, 140 Misc. 617; Haas v. Haas, 298 N. Y. 69; Condon v. Associated Hosp. Service, 287 N. Y. 411; Dun & Bradstreet, Inc., v. City of New York, 276 N. Y. 198.)
   Desmond, J.

Plaintiff wife brought this suit to set aside a separation agreement made between her and defendant husband. Defendant moved to dismiss the amended complaint, for alleged insufficiency. Special Term granted the motion but the Appellate Division reversed and denied it. The Appellate Division then allowed defendant an appeal to this court, certifying to us this question: ‘ Does the amended complaint state facts sufficient to constitute a cause of action? ”

The pleading is a wordy one, and not a perfect example of what section 241 of the Civil Practice Act demands, i.e., a plain and concise statement of the material facts, without unnecessary repetition, on which the party pleading relies, but not the evidence by which they are to be proved.” But neither prolixity nor repetitiousness nor the unnecessary averment of evidentiary facts destroys a complaint’s sufficiency. If in any aspect upon the facts stated the plaintiff is entitled to a recovery, the motion should be denied ” (Dyer v. Broadway Central Bank, 252 N. Y. 430, 432-433; Condon v. Associated Hosp. Service of N. Y., 287 N. Y. 411, 414). This complaint does contain, in addition to much else, statements of alleged facts which, if proven, would be basis for the relief sought.

In its fifth paragraph, it tells us that by the separation agreement, entered into in 1939, defendant agreed to pay plaintiff $30 per week for the support of plaintiff and a daughter (then eight years old), that defendant at that time “ claimed and stated ” that his income averaged $4,000 a year, and that the weekly sum so agreed upon ‘ ‘ was accepted by plaintiff, because of her destitute circumstances and by reason of her weak, nervvous and run-down condition, although insufficient and inadequate at that time for the maintenance and support of her needs and those of Doris, and the repayment of the debts incurred by her as aforesaid.” In the fourteenth paragraph of the complaint the charge is made that when plaintiff signed the separation agreement, she was in debt and had been left penniless by her husband, and that her poor physical and nervous condition had been caused, in part, by defendant’s ill treatment. That language meets the test of the cases, since it is an assertion that the terms of the agreement were unfair and inadequate, and that the wife made it improvidently and because she was sick and nervous, etc. It is an assertion that the measure of support fixed by the writing was not “ fair, adequate and equitable ” (Tirrell v. Tirrell, 232 N. Y. 224, 231; see Hungerford v. Hungerford, 161 N. Y. 550, 553).

Elsewhere in this complaint are allegations that the husband’s earnings have greatly increased, as have the wife’s necessities, and that the $30 per week is wholly inadequate for the support and maintenance of the wife and child. These references to facts later in time than the date of the agreement, are, whatever their ultimate impact on the decision of the case, not irrelevant (Harding v. Harding, 236 N. Y. 514; Brown v. Brown, 239 N. Y. 518; Dolan v. Dolan, 296 N. Y. 707, 296 N. Y. 860).

Certain other comments are in order. First, it is of course not the law that only lump-sum settlement agreements are subject to later attack by action (Dolan v. Dolan, supra). Second, the statements in various opinions of this court that a separation agreement valid on its face stands so long as “ unrevoked ” or “ unimpeached ” (see Galusha v. Galusha, 138 N. Y. 272, 283; Goldman v. Goldman, 282 N. Y. 296, 300, 301, 302; Jackson v. Jackson, 290 N. Y. 512, 516) do not help us to the decision of cases (such as this) where validity is challenged. Third, the allegations, above quoted, of this complaint are not mere conclusions ” but are statements, in customary form (see Pelz v. Pelz, 156 App. Div. 765), of the ultimate facts required by the cited authorities to be proved — if anything, they go too far in the other direction of pleading evidence (see California Packing Co. v. Kelly Storage & Distributing Co., 228 N. Y. 49, 54).

The order should be affirmed, with costs, and the certified question answered in the affirmative.

Froessel, J.

(dissenting). In my opinion, the complaint is legally insufficient. A cause of action to declare null and void a separation agreement must set forth facts impeaching or challenging the agreement for some cause recognized by law (Goldman v. Goldman, 282 N. Y. 296, 300). As the statute provides (Civ. Prac. Act, § 241), the complaint “ shall contain a plain and concise statement of the material facts, without unnecessary repetition, on which the party pleading relies, but not the evidence by which they are to be proved.” Mere conclusions are insufficient (Kalmanash v. Smith, 291 N. Y. 142, 156). A reading of the amended complaint herein discloses that the only allegations concerning the circumstances surrounding the execution of the separation agreement are contained in paragraph fifth, namely, that plaintiff accepted the sum of $30 a week “ because of her destitute circumstances and by reason of her weak, nervous and run-down condition, although insufficient and inadequate at that time ’ ’, which conclusory allegations are in effect repeated in paragraph fourteenth but also alleged to relate to a period subsequent to the separation agreement. In other words, plaintiff conclusorily alleges that when she made the agreement she was without funds, weak, nervous and run down, and that the amount she received — almost 40% of her husband’s income — was inadequate. No facts showing inadequacy, misrepresentation, fraud, concealment, duress, undue influence, overreaching conduct, or repudiation of the agreement by her husband are pleaded. The mere fact that the financial situation of the husband has substantially improved since the separation agreement is not a ground for setting it aside (Schmelzel v. Schmelzel, 287 N. Y. 21, 24, 26).

Accordingly, the order of the Appellate Division should be reversed and the order of Special Term giving plaintiff-an opportunity to plead over should be affirmed. The question certified should be answered in the negative.

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

Order affirmed, etc.


author: Loughran, Ch. J. Fuld, J.

text:
    In the Matter of Daniel M. Cash et al., Appellants, against Spencer E. Bates et al., Constituting the State Tax Commission, et al., Respondents.
    Argued May 15, 1950;
    decided July 11, 1950.

      David P. Siegel for appellants.
    I. The petition states facts which entitle petitioners to the relief requested. (Matter of Barry v. Chapman, 189 Misc. 928; Matter of Carey v. Morton, 297 N. Y. 361; Matter of Ross v. La Guardia, 287 N. Y. 28; Matter of Battaglia v. Morton, 272 App. Div. 372; Matter of Welling v. Bissell, 171 Misc. 90; Matter of Hilsenrad v. Miller, 284 N. Y. 445; Koso v. Greene, 260 N. Y. 491.) II. Defendants-respondents are estopped from asserting that the court was without power to grant the relief demanded because of the expiration of the eligible list from which appointments to motor vehicle license examiners were to be made. (Harbeck v. Pupin, 145 N. Y. 70; Phœnix Ins. Co. v. Parsons, 129 N. Y. 86; Thompson v. Simpson, 128 N. Y. 270; Conrow v. Little, 115 N. Y. 387; Curnen v. Mayor of City of N. Y., 79 N. Y. 511; Whitehall Water Power Co. v. Atlantic, Gulf & Pacific Co., 160 App. Div. 208; People v. Finch, Pruyn & Co., 207 App. Div. 76.) III. The expiration of the eligible list did not deprive the court of the power to grant the relief requested by petitioners. (State ex rel. Boucher v. Foley, 128 Fla. 800; Citizens Bank v. Cherokee, 138 Kan. 282; Matter of Coombs v. Edwards, 280 N. Y. 361; National Bank of Deposit v. Rogers, 166 N. Y. 380.)

      Nathaniel L. Goldstein, Attorney-General (Kent H. Brown and Wendell P. Brown of counsel), for respondents.
    Petitioners have no standing to maintain this proceeding. The petition does not allege a cause of action. (Hurley v. Board of Educ. of City of N. Y., 270 N. Y. 275; Brown v. Craig, 209 App. Div. 11; Ciaccia v. Board of Educ. of City of N. Y., 271 N. Y. 336; Matter of Carow v. Board of Educ. of City of N. Y., 272 N. Y. 341; Matter of Martin v. Kaplan, 235 App. Div. 787, 260 N. Y. 550; Matter of Woods v. Finegan, 246 App. Div. 271; People ex rel. Huber v. Adam, 116 App. Div. 613.)
   Loughran, Ch. J.

The issues herein have a background that should first be stated. For many years the United States Veterans Administration has determined Federal civil service preferences of veterans in accordance with degrees of disability fixed on percentage bases ranging from 0% to 100%. Such 0% rating does not mean an absence of disability. It means (1) the veteran was disabled during the period of his or her service in the armed forces and (2) the disability persists but is slight in degree and does not appreciably impair earning capacity.

At the times here in question, section 6 of article V of the State Constitution declared an absolute preference in civil service appointments and promotions for veterans who during the period of their service in the armed forces in time of war had become disabled to an extent certified by the United States Veterans Administration and whose disability was also certified by that administration to have been in existence at the time of his or her application for appointment or promotion. Upon applications made for such certifications, the Veterans Administration followed its practice of specifying degrees of disability upon percentage bases and the State civil service authorities accorded preferences to all applicants so classified, including those whose disability was rated at 0%. That procedure of the State civil service authorities continued until this court held that a rating of 0% disability or of a disability of less than 10% was no warrant for allowance of disabled veterans’ preferences under section 6 of article V of the State Constitution (Matter of Carey v. Morton, 297 N. Y. 361). So much for the background of this controversy.

The present proceeding was brought under article 78 of the Civil Practice Act against the State Tax Commission and the State Civil Service Commission. The petitioners are veterans of World War II with disabilities rated by the Veterans Administration at 10% or more. In February, 1942, they passed a competitive civil service examination for the position of motor vehicle license examiner and were made eligible for appointment to that position by a preferred list promulgated in February, 1944. A like preference was by that list bestowed upon other veterans whose disabilities had been rated at 0% and they were thereafter appointed from that same list. But none of these petitioners had been appointed when that list expired in 1948. In this proceeding, they demanded removal of the 0% incumbents and their own appointment. Their petition was dismissed at Special Term. The Appellate Division affirmed. By our leave, the petitioners brought the case here.

The only pleadings in this record are the petition and a notice of objection thereto in point of law (see Civ. Prac. Act, § 1293). In that notice the respondents — the State Tax Commission and the State Civil Service Commission — asked the court at Special Term “ for an order dismissing the petition herein as a matter of law for the reason that the same is untimely, and for the further reason that the petition fails to state facts which entitle petitioners, or any of them, to the relief requested or to any other relief.”

Argument against the petition on the score of untimeliness is of no avail. For the petition charges a continuing failure of the respondents to obey the command of section 6 of article V of the State Constitution as construed by this court in Matter of Carey v. Morton (supra). (See Civ. Prac. Act, § 1286.)

On the other hand, the respondents are right when they say that appointment of any of the petitioners after the expiration of the eligible list was a legal impossibility, and they are right, too, when they say that they could not estop themselves from asserting the fact of such expiration (see Matter of Carow v. Board of Educ. of City of N. Y., 272 N. Y. 341; Matter of Neubeck v. Bard, 275 N. Y. 43). Even so, the erroneous appointments— though made in good faith — ought to be open to attack by the petitioners, because as citizens and taxpayers they are entitled to an opportunity to insist upon the construction which this court placed upon the civil service article of the State Constitution in Matter of Carey v. Morton (297 N. Y. 361, supra). (See Matter of Andresen v. Rice, 277 N. Y. 271, 281. Cf. Slavin v. McGuire, 205 N. Y. 84, 86; Matter of McCabe v. Voorhis, 243 N. Y. 401, 411.) Matter of Phillips v. Kaplan (242 App. Div. 815, affd. 266 N. Y. 514) is not authority to the contrary, since the point we are now considering was there neither raised nor passed upon.

The petitioners may here obtain an order directing removal of 0% veterans from their positions unless an acceptable reason for a contrary course is made to appear by answer or on a trial. For example, an extensive removal of 0% veterans might so disrupt and disorganize the staff of the State Tax Commission as to constrain the court in its discretion to deny the relief here sought (Matter of Andresen v. Rice, supra, p. 282). Issues of that kind, however, cannot be determined summarily.

In our judgment the dismissal of this petition was error.

The orders should be reversed, without costs, and the matter rémitted to Special Term for further proceedings not inconsistent with this opinion.

Fuld, J.

(dissenting). It is true that the preferred appointments of veterans with a disability of less than 10%, termed a zero per cent disability ”, was improper. But that does not mean that a court is warranted in removing them upon the application of petitioners who sue, not as “ citizens and taxpayers ”, but as persons on an eligible list that had expired long before this proceeding was instituted. Indeed, this court held precisely that — that removal was not warranted — some years ago in a case indistinguishable from the present one. (See Matter of Phillips v. Kaplan, 266 N. Y. 514, affg. 242 App. Div. 815.) In Matter of Phillips v. Kaplan, the Civil Service Commission certified a number of disabled veterans of the First World War as being entitled to preferences, and such veterans, who stood lower on the eligible list than petitioners, were promoted between 1930. and 1932. Some time later, and yet prior to the expiration of the list, petitioners sought an order revoking the appointments upon the ground that the appointees had not been entitled to a preference. While the proceeding was pending, this court decided, in Matter of Potts v. Kaplan (264 N. Y. 110), that the preference had been illegally granted. Belying upon that decision, Special Term directed that the preferences be revoked that the appointments of the incumbents be cancelled and that petitioners be appointed in their place. The Appellate Division reversed and dismissed the petition; noting that the eligible list had expired since the commencement of the proceeding, it held not only that petitioners should not be appointed but that the previous certifications and appointments should not be revoked, and this court unanimously affirmed that disposition.

As I have indicated, petitioners do not attack the erroneous appointments as citizens or taxpayers. They seek a voiding of those 1947 appointments, not to regularize the civil service, but solely as individuals claiming that they themselves have a right to the positions thus rendered vacant. Phrased a bit differently, petitioners desire the discharge of incumbents only as an incident to procuring the appointments for themselves. Since the appointment of any of the petitioners after the expiration of the eligible list was a legal impossibility ” (opinion of Loughran, Ch. J., p. 261), the court goes beyond both the prayer for relief and the necessities of the case when it sanctions removal of the incumbents at the hands of such petitioners.

However, even if we were to regard the suit as one brought by citizens and taxpayers, I would still favor its dismissal.

In certifying and appointing veterans with a zero per cent disability ” rating, the Civil Service Commission and the State Tax Commission acted in utmost good faith and in reliance upon an honest and not unreasonable construction of the preference provisions of Constitution and statute. Until we decided the question in Matter of Carey v. Morton (297 N. Y. 361) — and by a four to three decision — there was a widespread belief that a “ zero per cent disability ” was a disability ” within the meaning of the Constitution. (See, e.g., Matter of Barry v. Chapman, 189 Misc. 928, revd. on stipulation by App. Div., 3d Dept., Oct. 22, 1948.) We should not ignore the difficulties that confronted administrative agencies in applying the veterans’ preference laws, and we should certainly not sanction nullification of action which those administrative agencies took prior to our decision in the Carey case (supra, 297 N. Y. 361). A course of administrative interpretation, honestly arrived at, culminating in numerous appointments long before our ruling, of necessity, has consequences. Those consequences ‘ ‘ cannot justly be ignored. The past cannot always be erased by a new judicial declaration.” (See Chicot County Drainage Dist. v. Baxter State Bank, 308 U. S. 371, 374, per Hughes, Ch. J.)

We vindicate the mandate of the Constitution and we meet the necessities of the present case if we permit appointments previously made, concededly numerous and widespread, to remain in statu quo, the 0% veteran incumbents to be eliminated — because of their inability to establish a right to the prior preference — in the orderly course of events, upon future reclassification, promotion, elimination of positions or layoffs. Neither the public interest nor petitioners’ rights will suffer if the court’s pronouncement as to the impropriety of according a super-preference to 0% veterans, be declaratory in nature and prospective in application. (See Matter of Cornehl v. Kern, 285 N. Y. 777, affg. 260 App. Div. 35, 40; People ex rel. Joyce v. Schirmer, 277 N. Y. 676, affg. 253 App. Div. 845; Matter of Andresen v. Rice, 277 N. Y. 271; Matter of Phillips v. Kaplan, supra, 266 N. Y. 514, affg. 242 App. Div. 815; cf. Matter of Sunshine v. Marsh, 290 N. Y. 775, affg. 265 App Div. 927.) In the Andresen case (supra, 277 N. Y. 271), for instance, where appointments were made to the state police in entire disregard of the Constitution and of civil service requirements, this court, after holding that future appointments must be made from lists prepared after a competitive examination ” went on explicity to say that “ This decision does not affect or disturb the officers in the positions they are now holding ” (p. 282); in the Cornehl case (supra, 285 N. Y. 777, affg. 260 App. Div. 35), the court, while holding that appointments from city-wide promotion lists were violative of the Civil Service Law, refused to annul certifications and appointments theretofore made, even though petitioners who had brought the proceeding were then eligible for appointment; and, in the Joyce case (supra, 277 N. Y. 676), the court refused to oust incumbents even though it appeared that the list from which they had been appointed was illegal because part of the examination had been conducted by unauthorized persons.

The necessity of procuring compliance with the Constitution’s civil service requirements and of assuring regularity of certification and of appointment cannot be questioned. However, relief in the nature of mandamus is an extraordinary remedy, to be granted only to vindicate a clear legal right of petitioners. In my view, the present, with its most unusual circumstances, is not such a case. Here, neither petitioners — who were on an expired list — nor any others have any right whatsoever to appointment in place of the incumbents. Here, the 1947 appointments were made in good faith, in reliance upon an honest and not unreasonable interpretation, long before any court held it incorrect. Any fear that retention of incumbents may undermine the civil service system or point a way to circumvent its requirements is less than tenuous. In point of fact, the present decision, that incumbents must be discharged — “ unless their removal is so “ extensive ” as to disrupt and disorganize ” the staffs on which they serve (opinion of Loughran, Ch. J., p. 262) — at the instance of any one who chooses to institute a proceeding, no matter how many years after the appointments were made, and no matter for what sort of noncompliance with some civil service requirement (for every violation in the appointment process contravenes the Civil Service Article of the Constitution) endangers job security and tenure, both exceedingly vital elements in our civil service system. In a word, in a case such as the one before us, to jeopardize innumerable positions of long standing, to sanction the discharge of incumbents who for years have undoubtedly planned their lives upon civil service permanence and tenure, impresses me as wrong in principle and bad on balance.

I would affirm the order of the Appellate Division.

Lewis, Conway, Desmond, Dye and Froessel, JJ., concur with Loughran, Ch. J.; Fuld, J., dissents in opinion.

Orders reversed, etc.