text:
    In the Matter of George Perpente, Appellant, against Paul Moss, as Commissioner of Licenses of the City of New York, Respondent.
    Argued May 25, 1944;
    decided July 19, 1944.

      Vincent Tese and Raymond Tese for appellant.
    I. The commissioner cannot deny a license without a hearing and without proper proof of bad character of the applicant. (People ex rel. Armstrong v. Warden etc., 183 N. Y. 223; Brazee v. Michigan, 241 U. S. 340; Adams v. Tanner, 244 U. S. 590; Ribnik v. McBride, 277 U. S. 350; Matter of Lyons v. Prince, 281 N. Y. 557; Matter of Small v. Moss, 277 N. Y. 501; Matter of Rucinski v. City of Schenectady, 249 App. Div. 344; Goodman v. Moss, 43 N. Y. S. 2d 381; Matter of Executive Service Corp. v. Moss, 256 App. Div. 345; Matter of Corporate Employment Service v. Moss, 286 N. Y. 601; Matter of Cherry v. Board of Regents, 289 N. Y. 148; Acorn Employment Service, Inc., v. Moss, 292 N. Y. 147; Darweger v. Staats, 243 App. Div. 380; Matter of Greenebaum v. Bingham, 201 N. Y. 343; Matter of Yates v. Mulrooney, 245 App. Div. 146; Matter of N. Y. W. S. Corp. v. W. Power & Control Comm., 257 App. Div. 590.) II. To hold that the General Business Law gives to respondent the power to deny or grant a license at will, is to place an illegal and unconstitutional construction upon the statute. (Panama Refining Co. v. Ryan, 293 U. S. 388; Matter of Seignious v. Rice, 273 N. Y. 44; Matter of Lyons v. Prince, 281 N. Y. 557; Acorn Employment Service, Inc., v. Moss, 292 N. Y. 147; Goodman v. Moss, 43 N. Y. S. 2d 381; Matter of Small v. Moss, 277 N. Y. 501, 279 N. Y. 288; Matter of Picone v. Moss, 241 N. Y. 157; Panama Refining Co. v. Ryan, 293 U. S. 388; Cowan v. City of Buffalo, 247 App. Div. 591; Forster v. Scott, 136 N. Y. 577; Morgan v. United States, 304 U. S. 1.)

      Ignatius M. Wilkinson, Corporation Counsel (Richard L, Baltimore, Jr., and James Ball Prothero of counsel), for respondent.
    The prior determination denying the license is res judicata on this appeal. (Matter of Perpente v. Moss, 265 App. Div. 789.)
   Lehman, Ch. J.

The petitioner, George Perpente, on the 7tb day of May, 1943, made application in writing to the Commissioner of Licenses of the City of New York for a license to conduct an employment agency. No protest was filed against the issuance of the license. The application was denied within thirty days. The petitioner then brought proceedings pursuant to article 78 of the Civil Practice Act and asked the court to i( grant an order annulling the determination of respondent as Commissioner of Licenses of the City of New York refusing to issue to him an employment agent’s license and for a further order directing that a license issue to him forthwith ”. He claims in his petition that he is a person of good character, that the place where such agency is to be conducted is a suitable place therefor and that he is entitled to a license in accordance with section 174, article 11, of the General Business LawT, and that the Commissioner’s “ refusal is in violation of Article 11, is illegal, capricious, arbitrary, and an abuse of discretion.”

The petition alleges that, petitioner had been refused a license on a previous application and solely on the ground that he had been employed by Corporate Employment Service, Inc., whose license had been revoked in August, 1940. In his answer the respondent Commissioner of Licenses denies some of the allegations of the petition and affirmatively alleges that on August 5,1942, the petitioner filed an application for a license and that the application was denied on the merits; that the Appellate Division on April 23, 1943, handed down a decision sustaining the determination of the Commissioner, and that “ on the 29th day of May, 1943, respondent herein notified petitioner that respondent’s original decision denying the application, which had been sustained by the Appellate Division, was adhered to.” The petitioner moved at Special Term for an order.as prayed for in his petition. The motion was denied upon the pleadings, the court stating: The question here presented is controlled by the decision of the Appellate Division on the earlier application (In re Perpente v. Moss) 265 App. Div. 789.” The Appellate Division affirmed the order, Mr. Justice Untermyer dissenting.

Section 1300 of article 78 of the Civil Practice Act, entitled Final Order,” provides: “ The court shall render a final order granting the petitioner the relief to which it deems he is entitled, or dismissing the proceeding, either on the merits or with leave to renew. If the proceeding is brought to review a determination, the court may annul or confirm, wholly or partly, or modify the determination reviewed, as to any or all of the parties, and may direct appropriate action or inaction by the respondent.” The order of the court from which an appeal has been taken is not such a “ final order nor may we assume that the court intended to dismiss the proceeding though the form of the order may be defective. The court had before it upon the motion made by the petitioner only the pleadings and it could dismiss the proceeding only if it appeared on their face that as matter of law the petitioner was entitled to no relief. (Civ. Prac. Act, § 1295.) The record discloses only that an application for a license was denied in August 1942; that the determination of the Commissioner was confirmed by the Appellate Division and that without a hearing the Commissioner denied in May 1943 a new application because the Commissioner “ adhered ” to his former determination. The question whether the petitioner was entitled as matter of law to summary relief upon motion may perhaps be controlled by the decision of the Appellate Division in Matter of Perpente v. Moss (265 App. Div. 789). Other questions which the petitioner has raised and which could not be decided by the court upon a motion made upon the pleadings are clearly not controlled by that decision.

By the express terms of section 174 of the General Business Law, where a written protest has been filed against the issuance of a license u the mayor or commissioner of licenses shall appoint a time and place for the hearing of such application ”. The statute does not in express terms require that a formal hearing be held where no protest has been filed and perhaps no requirement for said hearing may be read into the statute by implication. The decision of the Appellate Division upon the earlier application may,, we assume, be considered as sanctioning less formal procedure adopted there by the Commissioner. Nonetheless the application for a license is, in such case, to be denied only if it shall appear from an “ inspection or examination made by the said mayor or commissioner ” that one of the statutory grounds for denying the application exists. Refusal may not be arbitrary and the determination of the Commissioner is subject to review by the court. Though formal hearings and formal findings may not be required, a license may not be refused on the ground that the applicant is not a person of good character ” unless the applicant has fair opportunity to meet a challenge to his good character and unless the court of review is apprised of the basis for the finding against the applicant. The procedure of the Commissioner must conform to recognized standards of fairness and a record must be made which permits a review of the action of the Commissioner by the court. (Matter of Elite Dairy Products v. Ten Eyck, 271 N. Y. 488.) The petitioner cannot challenge the fairness of the procedure or the validity of the determination upon the first application which has been confirmed by the Appellate Division. He can still challenge the determination of the Commissioner upon the second application and the order from which an appeal has been taken does not purport to determine that challenge.

We do not mean to imply that where the Commissioner has, upon sufficient evidence, determined that an applicant is not a persqn of good character and has denied his application the applicant may promptly file a new application and compel the Commissioner to re-examine the question. Usually there is room for the exercise of discretion whether the time has come for reconsideration. That may depend on many factors: the nature of the evidence originally examined and of the evidence offered when a new application is made; the ground for the denial of the first application, as well as the time that has elapsed since that denial. These and perhaps other questions still remain open. The courts below have not passed upon them and have decided only that the petitioner has failed to show that he is entitled to relief as matter of law.

The order appealed from does not finally determine the special proceeding and the appeal should be dismissed, without costs,

Lottghban, Rippey, Lewis, Conway, Desmond and Thaoheb, JJ ., concur.

Appeal dismissed.


source: Caselaw Access Project

author: Lehman, Ch. J. Lewis, J.

license: Public Domain

text:
    Edward A. Stapleton et al., Respondents, v. Elizabeth F. Pinckney, as Commissioner of Jurors of the County of Albany, Appellant, and Nathaniel L. Goldstein, as Attorney-General of the State of New York, Intervener, Defendant-Appellant.
    Argued June 12, 1944;
    decided July 19, 1944.

      Walter L. Collins, County Attorney (Frank Pedlow of counsel), for Elizabeth F. Pinckney, as Commissioner of Jurors of the County of Albany, defendant-appellant.
    I. Chapter 206 of the Laws of 1944 is a general law in terms and effect applying alike to a specified class of counties throughout the entire State and not in conflict with section 17 of article III of the Constitution. (City of New York v. Fifth Avenue Coach Co., 237 App. Div. 383; Matter of Church, 92 N. Y. 1; Matter of McAneny v. Bd of Estimate, etc., 232 N. Y. 377; Kittinger v. Buffalo Traction Co., 160 N. Y. 377; Matter of N. Y. Elevated R. R. Co., 70 N. Y. 327; People ex rel. N. Y. Elec. Lines Co. v. Squire, 107 N. Y. 593; Ferguson v. Ross et al., 126 N. Y. 459; People v. Dunn, 157 N. Y. 528.) II. This Act is of general statewide effect within the class specified and an enactment within the power of the Legislature, not prohibited by the Constitution. (Kittinger v. Buffalo Traction Co., 160 N. Y. 397; Atkins v. Hertz Drivurself Stations, Inc., 237 App. Div. 31; El Paso & N. E. Ry. v. Gutierrez, 215 U. S. 87; Matter of N. Y. Elevated R. R. Co., 70 N. Y. 327; N. Y. C. & H. R. R. R. Co. v. Williams, 199 N. Y. 108; People ex rel. Simon v. Bradley, 207 N. Y. 592; People v. Crane, 214 N. Y. 154.)

      Nathaniel L. Goldstein, Attorney-General (Wendell P. Broion, Orrin G. Judd and John R. Davison of counsel), intervener, defendant-appellant.
    I. The present statute does not violate the restriction imposed by article III, section 17 of the Constitution. (Mahnich v. Southern S. S. Co., 321 U. S. 96; Matter of N. Y. Elevated R. R. Co., 70 N. Y. 327; Matter of Church, 92 N. Y. 1; Ferguson v. Ross et al., 126 N. Y. 459; Matter of Henneberger, 155 N. Y. 420; People v. Bunn, 157 N. Y. 528; Matter of Ahern v. Elder, 195 N. Y. 493; Admiral Realty Co. v. City of N. Y., 206 N. Y. 110; People v. Damron, 212 N. Y. 256; Matter of McAneny v. Bd. of Estimate, etc., 232 N. Y. 377.) II, The Act should not be declared unconstitutional unless it appears beyond reasonable doubt that it is impossible to reconcile its provisions with the Constitution and that it amounts to a clear usurpation of prohibited power. (Matter of Fay, 291 N. Y. 198; Matter of Ricker v. Village of Hempstead, 290 N. Y. 1; Oswego & Syracuse R. R. Co. v. State, 226 N. Y. 351.)

      Robert E. Whalen and M. Michel Dobris for respondents.
    Section 17 of article III of the Constitution does not save the Act as a valid enactment. (Kerrigan v. Force, 68 N. Y. 381; People ex rel. v. Newburgh, etc., Plank Road Co., 86 N. Y. 1; Matter of Henneberger, 155 N. Y. 420; Greene v. Dunscomb, 281 3 N. Y. 261; Matter of Mayor, etc., of New York [Elm St.], 246 N. Y. 72; People ex rel. Killeen v. Angle, 109 N. Y. 564; People ex rel. Carter v. Rice, 135 N. Y. 473; People ex rel. W. E. & C. Co. v. Metz, 193 N. Y. 148.)
   Lehman, Ch. J.

The plaintiffs, residents and taxpayers of the City of Albany, challenge the validity of chapter 206 of the Laws of 1944 entitled: “ An act relating to jurors and commissioners of jurors in counties having a population of not less than two hundred thousand and not more than two hundred fifty thousand and containing a city with a population of one hundred twenty-five thousand or more.” The Act purports to define the powers and duties of the Commissioner of Jurors in such counties and to regulate the manner of selecting jurors. It provides, among other things, that the Commissioner shall not place on the list of jurors any person who has served as a trial or grand juror during the three years preceding the preparation of such list No county except the County'of Albany contains a city with a population of 125,000 and has a population of not less than 200,000 and not more than 250,000, and at present the statute does not apply in any other county.

Article II'I, section 17 of the Constitution provides: “ The legislature shall not pass a private or local bill in any of the following cases * * * Selecting, drawing, summoning or empaneling grand or petit jurors.” Since the challenged Act does provide for Selecting, drawing, summoning or empaneling grand or petit jurors ” it is of course invalid if the bill is “ local ” within the meaning of that section of the Constitution. The plaintiff contends, and the court below has held, that the Act violates not only section 17 of article III, but also article IX, section 1-b of the Constitution. The appellants maintain that the latter section of the Constitution does not apply to bills in the “ cases ” specified in article III, section 17. We do not reach that question if the Act is “ local ” within the meaning of article III, section 17.

The intent of the restriction placed by that section of the Constitution upon the exercise of legislative power is plain. Other sections of the Constitution confer governmental powers upon local units of government within defined fields and regulate or even prohibit interference within those fields by the Legislature. (City of New York v. Village of Lawrence, 250 N. Y. 429.) Some of the matters specified in section 17 of article III are of State concern, and legislative power in relation to such matters may be vested exclusively in the Legislature, but the Constitution has imposed restrictions upon the manner in which that power may be exercised. Statutes relating to those matters may not confer benefits or impose burdens upon particular persons or localities named or designated therein, and exclude others perhaps in similar situation. Classification by the Legislature is not excluded where the classification has reasonable relation to the subject, but the classification must be based upon standards of general application to all persons or locálities within a class created by the statute. The courts have in all cases applied that test where the validity of a statute, relating to any of these matters, has been challenged on the ground that it is a local not a general law, but the line dividing classification from designation is shadowy where identifying marks are many and particular. (Matter of Mayor, etc., of New York [Elm St.], 246 N. Y. 72.)

This court has from the beginning recognized that a law relating to. a matter of State concern and applicable to all municipal corporations or localities in a class based upon population or upon proximity to great centres of population may be a general law though only a single municipal corporation or locality can at the time receive its benefits. (Matter of N. Y. Elevated R. R. Co., 70 N. Y. 327.) In commenting upon that decision this court said: “A law relating to particular persons or things as a class was said to be general; while one relating to particular persons or things of a class was deemed local and private ” (In the Matter of the Application of Church, 92 N. Y. 1, 4). The court recognized in that case that it is difficult to define the test; at times it is more difficult to apply it. In Matter of Henneberger (155 N. Y. 420, 426, 429-30) the court analyzed, the earlier cases .where the court had been called upon to put a law on one side or the other of the line which separates a general act from a local ” act, and the court pointed out with respect to the section we are now considering, that ‘ ‘ an act which embraces all things of a certain class, is a general and not a local act; although, by reason of some limitation based on population, or other condition, only a particular city, or the inhabitants of a single locality, can, at the time, receive its benefits ” citing Ferguson v. Ross et al. (126 N. Y. 459); Matter of Church (92 N. Y. 1). The court, however, also pointed out that in the cases it analyzed, each challenged statute was made applicable to all municipal corporations or localities in a class and that class was based on population, or some other condition, which might be recognized as possibly common to a class, or which might permit of classification ” (italics are new), and the court added that “ The classification of cities by population is an idea recently embodied in the Constitution, and good reasons exist why, in a general law, reference may be had to conditions of population, whether in counties, cities, towns or villages, or with respect to a proximity to cities of a certain growth.” Though the court in Matter of Henneberger (supra) recognized that adherence to that rule might at times make possible legislative evasion of . the command of the Constitution, it is said that we shall adhere to the rule that “ an act embracing all things of a certain class is a general and not a local act,” but it refused to extend or apply the rule to a case where attempted classification ” is based on conditions ‘ ‘ which cannot be recognized as common to a class ” and have no reasonable relation to the subject. In such ease there is in truth no “ class ” created but merely identifying marks of the locality or localities for which the Legislature is enacting a special law. Any other conclusion would, as the court pointed out, defeat the purpose of the constitutional provision by sanctioning the use of the device of formulating a statute in general terms, though even without extrinsic evidence the purpose was evident upon the face of the Act to designate a single locality and not to create a class based on conditions common to a class and germane to the subject of the Act.

The defendants do not contend that the challenged statute would be general if in terms it applied only to the County of Albany. They contend only that since the statute is in terms applicable to a class of counties based on population and since “ good reasons exist why, in a general law, reference may be had to conditions of population whether in counties, cities, towns or villages ” the Act is general and not local, though only the County of Albany can in the actual situation receive its benefits. That is true only if the conditions of population referred to may be recognized as possibly common to a class, or which might permit of classification.” In many cases since Matter of Henneberger (supra) beginning with People v. Dunn (157 N. Y. 528) this court has sustained classifications based on population though such statutes could at the time apply only to counties within the city of New York or to Erie County or to Monroe County. The court has recognized that classification may be reasonable which separates New York City, with its population of 6,000,000 and upwards, from all other cities of the State, or which places Erie County, containing the city of Buffalo, or Monroe County, containing the city of Rochester, in separate classes based on population. In all those cases it could be said that conditions due to difference in population might reasonably require differentiation in laws applicable there. We find it difficult, however, to discern in the circumstance that Albany County has a population of over 200,000 and less than 250,000 and contains a city with a popu lotion of over 125,000, any reasonable ground for the creation of a separate class and the enactment of a statute regulating “ Selecting, drawing, summoning or empaneling grand or petitjurors ” applicable only to Albany County. No reason for such classification has been suggested to us, but we are told that we must assume that the Legislature based its classification on reasonable grounds unless it appears incontrovertibly that no such grounds exist. We assume in this case, as perhaps we must, that reason for the procedure formulated in the statute may be found in local conditions existing in Albany, but it cannot be argued that such local conditions are in any way related to the circumstance that Albany County has a population of more than 200,000 and less than 250,000 and contains a city with a population of 125,000. The Constitution forbids legislation to meet local conditions by local ” act, and the Act is local if the references to population in the Act serve only to identify the County of Albany where these local conditions are said to exist, and where alone the remedy is made applicable. Though we are told that in time Oneida County may also be included in the class ” based on population as described in the Act, there is no possible reason to believe that the local conditions which it is said may furnish reason for the legislation would then also exist in Oneida County. Change in rules for the selection of jurors intended to remedy conditions existing in one or more counties of the State must be. made by general act applicable where such conditions exist, and not by the device of a statute in terms applicable to a “ class ” of counties defined solely by reference to population though the conditions intended to be remedied have no apparent relation to the basis of the classification. Otherwise little has been accomplished by the constitutional provision “ beyond the addition of a phrase to the rigmarole of parchments ”. (Matter of Mayor, etc., of New York [Elm St.], 246 N. Y., supra at p. 76.)

The judgment should be affirmed, with costs.

Lewis, J.

(dissenting). Chapter 206 of the Laws of 1944, entitled u An Act relating to jurors and commissioners of jurors * * * ”, prescribes procedure by which are selected grand jurors (§ 8) and trial jurors (§ 4). “ The jurors, when drawn, become a part of the court having governmental duties to discharge.” (Matter of Allison v. Welde, 172 N. Y. 421, 430.) The statute thus relates itself to important functions exercised as an incident to administering criminal law and the judicial process in this State. The fact that presently — but not necessarily in the future — only one county cDmes within the class specified in the Act is not enough to make the statute local in character. The Act is general because, in its terms and in its effect, it relates to a function of government which is a matter of State concern. It does not relate to the organization and government of counties but to one of the co-ordinate branches of government — an established state-wide judicial system. We know that “ * * * the Legislature is unfettered as to matters of state concern ’ ”. (Adler v. Deegan, 251 N. Y. 467, 490.) As to those matters this court has said — ‘‘ An act designed to remedy conditions affecting the public generally, though imposing restrictions or obligations upon a particular municipality as a means of affecting the larger purpose can hardly be said to be local in its effect.” (Robertson v. Zimmermann, 268 N. Y. 52, 59; Ferguson v. Ross et at., 126 N. Y. 459, 465; People v. Dunn, 157 N. Y. 528, 540-1.; Matter of Ahern v. Elder, 195 N. Y. 493, 500; Admiral Realty Co. v. City of New York, 206 N. Y. 110, 139-140; Matter of McAneny v. Bd. of Estimate, etc., 232 N. Y. 377, 392-3.) These decisions made by this court when dealing with problems fairly to be compared with the one now before us have led me to conclude that the statute now challenged violates neither article III, section 17, nor article IX, section 1 (b), of the Constitution of this State. It is not “ such a clear usurpation by the Legislature of prohibited power as must be found before a statute can be pronounced unconstitutional and void.” (Matter of Ricker v. Village of Hempstead, 290 N. Y. 1, 5.)

Accordingly I dissent and vote for reversal and the dismissal of the complaint.

Loughran, Bippey, Conway, Desmond and Thacher, JJ., concur with Lehman,' Ch. J.; Lewis, J., dissents in opinion.

' Judgment affirmed.


author: Conway, J. Desmond, J.

text:
    In the Matter of Motor Haulage Company, Inc., Appellant, against Milo R. Maltbie et al., Constituting the Public Service Commission of the State of New York, Respondents.
    Argued April 19, 1944;
    decided July 19, 1944.

      Parker McCollester and Frank J. Clark for appellant.
    I. One is not a common carrier by motor vehicle under the Public Service Law unless he has undertaken to transport property for the general public. (Public Service Law, art. 1, § 2 [30].) II. There is no undertaking to transport for the general public within the meaning of the statutory definition if a carrier may, with impunity, refuse to transport goods tendered and may select those with whom it will contract, and if its obligation to transport arises solely by reason of express contracts and not by virtue of a public undertaking. The definition of ‘ ‘ common carrier ” in the statute is plainly designed to be declaratory of the common law and if it were not so the statute would be invalid. (Anderson v. Fidelity & Casualty Co., 228 N. Y. 475; Jackson A. Iron Works v. Hurlbut, 158 N. Y. 34; Michigan Commission v. Duke, 266 U. S. 570; Frost Trucking Co. v. R. R. Com., 271 U. S. 583; Smith v. Cahoon, 283 U. S. 553; Belfast Ropework Company v. Bushell [1918], 1. K. B. 210; Terminal Taxicab Co. v. Dist of Col., 241 U. S. 252; Gerhard & Hey, Inc., v. Cattaraugus T. Co., 241 N. Y. 413; The Pawnee, 205 F. 333.) I'll. The facts as to appellant’s business clearly negative any undertaking to transport for the general public either at common law-or within the language of the statute. (Michigan Commission v. Duke, 266 U. S. 570.) IV. The manner in which appellant conducts its business brings it squarely within the statutory and common law definition of “.contract carrier ” and the Commission’s failure so to find was erroneous at law and arbitrary in the light of the evidence. (Public Service Law, art. 1, § 2 [30]; Terminal Taxicab Co. v. Dist. of Col., 241 U. S. 252; Film Transport Co. v. Michigan Public Utilities Commission, 17 F. 2d 857; Ace-High Dresses v. Trucking Co., 122 Conn. 578; N. S. Craig Contract Carrier Application, 31 Motor Carrier Cases 705.) V. One is not a common carrier for the purposes of the Public Service Law unless his business has the characteristics of those previously considered common carriers thereunder and is susceptible of regulation as such. This is not the case as to appellant. (Anderson v. Fidelity & Casualty Co., 228 N. Y. 475; Terminal Taxicab Co. v. Dist. of Col., 241 U. S. 252; Ace-High Dresses v. Trucking Co., 122 Conn. 578.) VI. The majorities both of the court below and of the Commission rested their decisions that appellant was a common and not a contract carrier upon grounds which were erroneous as a matter of law or without support in the evidence. (Terminal Taxicab Co. v. Dist. of Col., 241 U. S. 252; Belfast Ropework Co. v. Bushell [1918], 1 K. B. 210; Dairymen’s Co-Op. Sales Assn. v. Public Service Commission, 177 A. 770; Marshall v. Public Service Commission, 129 Penn. Super. Ct. 272; Film Transport Co. v. Michigan Public Utilities Commission, 17 F. 2d 857; Michigan Commission v. Duke, 266 U. S. 570; American Trucking Ass’ns. v. United States, 17 F. Supp. 655; Merchant Truckmen’s Bureau v. Reardon, 10 F. Supp. 358.)

      Philip Halpern and Samuel R. Madison for respondents.
    1. The conclusion of the Commission that the appellant was a common carrier was amply supported by the evidence. (Terminal Taxicab Co. v. Dist. of Col., 241 U. S. 252; Sheets & Sons v. Public Utilities Commission, 124 Ohio St. 343; Lloyd v. Haugh, 223 Penn. St. 148; Jackson A. Iron Works v. Hurlbut, 158 N. Y. 34; Anderson v. Fidelity & Casualty Co., 228 N. Y. 475; U. S. v. Carolina Carriers Corp., 315 U. S. 475; McKay v. Public Utilities Commission, 104 Col. 402; Doyle Transfer Co. v. United States, 45 F. Supp. 691.) II. The fact that the appellant does a large part of its business under formal contracts does not affect its status as a common carrier. (Clark v. Ulster & Delaware R. R. Co., 189 N. Y. 93; Fordham Bus Corporation v. United States, 41 F. Supp. 712; Doyle Transfer Co. v. United States, 45 F. Supp. 691.) III. The alleged special features of the service rendered by the appellant could not affect the appellant’s status as a common carrier. (Cleveland & St. Louis Ry. v. Dettlebach, 239 U. S. 588; Clark v. Ulster & Delaware R. R. Co., 189 N. Y. 93.) IV. The solicitation and acceptance of the so-called miscellaneous business by the appellant, of itself, established the appellant’s status as a common carrier. (Doyle Transfer Co. v. United States, 45 F. Supp. 691.) V. Appellant’s status does not depend upon the answer to the appellant’s hypothetical query as to whether the appellant could have been held liable at common law for refusal to accept a shipment tendered to it. (Cornell Steamboat Co. v. United States, 53 F. Supp. 349, 321 U. S. 634; Anderson v. Fidelity & Casualty Co., 228 N. Y. 475.) VI. Appellant’s contract business is common carriage. (Cornell Steamboat Company v. United States, 321 U. S. 634.)
   Conway, J.

The appellant, The Motor Haulage Company, Inc. (hereinafter also referred to as Applicant), made application to the Public Service Commission of the State of New York for a permit to operate as a contract carrier pursuant to section 63-n of the Public Service Law. That section provides, in part, that “No person shall engage in the business of a contract carrier by motor vehicle on any public highway in this state unless there is in force with respect to such carrier a permit issued by the commission authorizing such person to engage in such business”. Section 63-k is to the same effect but refers to a certificate for common carrier by motor vehicle. Both sections contain so-called “ grandfather clauses ” providing that carriers in bona fide operation on February 1, 1938, were entitled to permits or certificates without further proceedings.

Hearings on the application were held on two days before a principal law clerk. The only witness who gave testimony was a vice-president of Motor Haulage. No one testified on behalf of the Commission and no evidence in contradiction of the testimony was presented. Thereafter a report, which was adopted by the Commission, with one dissenting vote, was submitted by the principal law clerk. By the Commission’s order, the applicant was granted a certificate of public convenience and necessity as a common carrier by motor vehicle for the transportation of “ General Commodities;

“ From New York City to all points in the following counties: Nassau, Orange, Bockland, Suffolk, Sullivan, Westchester,
From all points in the following counties to New York City: Bockland, Suffolk.”
. The order further provided: That as operations wholly within the commercial zone of the city of New York, as fixed by this Commission, which are not under a common control, management or arrangement for a continuous carriage or shipment by motor vehicle to or from a point without said zone are not subject to regulation, a certificate is not required therefor.”

Thereafter this proceeding was instituted, pursuant to article 78 of the Civil Practice Act. It was transferred to the Appellate Division, Third Department, where by a closely divided court, the conclusion reached by the Commission was upheld.

Public Service Law, section 63-i is entitled “ Declaration of policy and delegation of jurisdiction.” It is not necessary to quote it here.

Section 63-j, subdivision 2, reads as follows: 2. The commission may from time to time establish such just and reasonable classification of brokers or of groups of carriers included in the term common carrier by motor vehicle, or contract carrier by motor vehicle as the special nature of the services performed by such carriers or brohers shall require, and such just and reasonable rules, regulations and requirements, consistent with the provisions of this article, to be observed by the carriers and brokers so classified or grouped, as the commission deems necessary or desirable in the public interest.” (Emphasis supplied.)

Public Service Law, section 2, is entitled “ Definitions,” Subdivision 30, clause (b) of that section provides: The term ‘ common carrier by motor vehicle ’ means any person who or which undertakes, whether directly or by lease or any other arrangement, to transport property, or any class or classes of property, for the general public by motor vehicle for compensation, whether over regular or irregular routes, or within a defined territory, including such motor vehicle operations of carriers by rail or water, and of express or forwarding companies to the extent they are not otherwise included within the provisions of parts one and two of the interstate commerce act of the United States and the laws of this state.”

Subdivision 30, clause (d) reads: “ The term contract carrier by motor vehicle ’ means any person, not included in (b) of this paragraph, who or which under special and individual contracts or agreements, and whether directly or by lease or any other arrangement, transports property by motor vehicle for compensation.”

Reference has already been made to Public Service Law (§§ 63-k and 63-n). It is not necessary to quote them in full here.

The vice-president-witness of Motor Haulage gave testimony as to the different types of contracts used by the Applicant and in general the modus operandi of the corporation. Motor Haulage was incorporated back in 1916 and its equipment consists of 154 motor trucks with capacities ranging from 550 pounds to 15 tons, 69 tractors and 116 semi-trailers with capacities up to 20 tons. Its trucks and semi-trailers embrace the following types of equipment:

1. Station wagons, rack platforms and van body trucks and semi-trailers for general merchandise.

2. Van body trucks equipped with armored cabs and Babaco alarms for transporting valuable products.

3. Insulated van bodies for handling fresh meats.

4. Insulated and heated bodies for handling wines and liquors in the winter time.

5. Winch trucks for handling large and bulky pieces.

6. Bodies equipped with special racks and scaffolding for handling metal car signs.

7. Small delivery trucks for handling express shipments.

8. Reach semi-trailers, 48 feet long for handling aeroplanes.

9. Tank trucks for syrups, liquid sugar, and other fluids.

• That list shows the special character of the equipment required for the contract operations.

Motor Haulage is engaged in both interstate and intrastate business. A large portion of its business is interstate. The company maintains two garages in Brooklyn, one in New York City, two in Jersey City and one each in Harrison, Newark and Long Island City. From its organization, its business has primarily been that of furnishing, under special contracts, trucks for handling and transporting goods and merchandise within a radius of fifty to sixty miles of Columbus Circle, New York City, although trucks operate to some extent to points much more distant.

Approximately 95% of the transportation performed is under contracts of a special nature, the terms of such contracts ranging from one to five years. Those contracts, in most instances, have been secured by taking over the trucking equipment and personnel'of industrial and merchandising companies and substituting therefor, under contract, motor haulage service for such companies in lieu of that previously performed by them with their own trucks. Under the contracts, Applicant undertakes to. provide identically the same character of service which its patrons formerly provided for themselves by the use of their own trucking equipment and personnel. In order to do that, Applicant is obliged to conduct the operations under each contract as a separate unit. With very few exceptions, the equipment used for transporting the products of a particular patron is exclusively assigned to that patron, so that there is no intermingling of freight on a single truck or unit for several patrons.

At the time of the hearings, Applicant had contracts covering both intrastate, and interstate operations with approximately forty-nine customers. In addition, it had contracts with five or six customers covering operations only within the State of New York, although the transportation covered by some of these may be interstate commerce. Applicant’s proof included the presentation, in evidence and reference to numerous contracts totaling one hundred in number.

The contracts entered into between applicant and its customers do not contain uniform provisions and rates, but vary according to the nature and requirements of the particular customer. They may be roughly divided into the following categories :.

1. Contracts of rental without responsibility. Under these contracts, Applicant furnishes trucks, with or without drivers, to customers to be used by customers as they may see fit. Applicant assumes no responsibility for goods handled in the trucks. In some instances it agrees to furnish chauffeurs to operate the trucks. In other instances, the drivers are supplied by the lessee. When chauffeurs are furnished, Applicant is reimbursed by its patrons for their wages. As a general rule the contracts do not specify the nature of the commodities to be transported. The trucks are operated by the lessees in the same manner as if they were owned by them. Applicant usually agrees to maintain the leased equipment in good repair, to maintain personal injury and property damage insurance, and to garage and fuel the trucks. The lessee directs- the operation of the vehicles. At the time of the hearings Applicant was a party to seven such contracts, three of which related to intrastate commerce in New York.

Applicant contended and the Commission has held that this type of contract does not constitute transportation subject to the Public Service Law and, therefore, is not subject to regulation by the Commission. Therefore, no issue is presented here as to that phase of the Commission’s decision.

A part of the Applicant’s operations lies within the New York commercial zone and is therefore exempted from regulation under the statute. [Public Service Law, § 63-i, subd. 3, cl. (c).] The New York commercial zone has been defined by the Commission as embracing the whole of the City of New York and certain towns and cities in Nassau and Westchester Counties, which are contiguous to the City of New York. A part of the operations is interstate and that part is subject to regulation by the Interstate Commerce Commission under the Federal Motor Carrier Act. That Act is similar to the one under consideration.

2. Rental contracts with responsibility. Under these contracts Applicant assumes responsibility for goods transported in the trucks leased. The contract does not, provide for a detailed description of the territory within which the leased trucks may be operated. Applicant issues no receipts for any goods loaded on the trucks. It does not know what the trucks may be used for or what goods may be transported in them. The routing of the trucks and the nature of the cargo transported is entirely within the direction of the customer. Applicant assumes liability for loss or damage for goods loaded in the trucks if the customer can prove the loading as to which damage occurs. The majority of the trucks used under these contracts bear the name of the customer." At the time of the hearing, Applicant had nine such contracts, seven of which involve intrastate operations. The Applicant submitted no proof of any operations under these contracts because “ We would not be in a position to do so because we don’t know what is loaded on the truck or where the truck goes to. ’ ’

3. Tonnage Contracts. Under this type of contract Applicant assumes responsibility for the transportation of goods. Compensation for the transportation services performed is predicated upon a weight, measurement, gallonage or unit basis. Practically all of these contracts contain an agreement to provide special trucks of varying capacities on an hourly or day basis to handle special deliveries or special commodities that cannot be handled in conjunction with the usual run of commodities handled for the concern under contract, or to provide transportation to or from points for which no tonnage, measurement, gallonage, or unit basis rates have been provided in the rate schedule, or where for other reasons, compensation is determined on an hourly basis. They also contain provisions, in most instances, that in the event that the wages of chauffeurs and helpers or taxes of various kinds are increased during the period of the contract, the increase shall be borne by the customers.

The .negotiation of these contracts involved an agreement on the part of Applicant to take over the fleets of trucks of the customers that were being operated by them, including the personnel. The Applicant introduced into evidence eighteen tonnage contract's, all but one of which covered intrastate shipments within and without the exempted intrastate area. In addition Applicant introduced into evidence sixteen contracts with steamship and railroad companies. All of the operations under those sixteen contracts are limited to commercial zone operations insofar as they affect intrastate movements. Applicant also had oral contracts calling for special services in addition to transportation. Examples of these special service contracts are (1) the salvaging of damaged airplanes for Grumman Aircraft Engineering Corporation and (2) the performaneé of emergency transportation for such companies as the Western Electric Company, the Jersey Bell Telephone Company, and the New York Telephone Company whenever they may require emergency replacement deliveries of equipment and materials that have been damaged due to floods, storms, et cetera.

Ninety-five per cent of the business.of Applicant is performed under contracts of the nature described under the aforementioned categories. The remaining 5% is described as “ miscellaneous operationsThose operations involve transportation of individual shipments which Applicant is requested to perform and the arrangement for which is negotiated by letter or by telephone conversation, subsequently confirmed by letter. In some instances the contract is entirely oral. Transportation of this character is performed between points within a radius of fifty or sixty miles of Columbus Circle, New York City, and to almost any point on Long Island, The uncontradicted and undisputed testimony is that Applicant has always negotiated an agreement for even individual shipments and has never undertaken to handle any freight if unable to arrive at some mutually satisfactory arrangement' to make the transportation. Applicant has never held itself out to carry for anybody that might call upon it to transport goods. An agreement is made for each individual movement. . The business under these contracts is business outside of Applicant’s regular (long term) written contracts. Included in this category are business concerns which, instead of having a regular run of freight, have only intermittent movements. This type of operation is not limited to shippers with whom Applicant already has contracts. These are operations under arrangements made in each instance for the individual operation.

The record also contains a statement summarizing briefly some of the outstanding provisions found in the contracts employed. The purpose of this summary was to point out the special requirements of the various customers. Some of the provisions are as follows:

1. Provision by which Applicant agrees to paint the name of the lessee upon trucks used in performing transportation for it. Under the tonnage contracts 149 automotive units carry the customer’s name; 14.under rental contracts. Under the tonnage contracts 149 automotive units have the customer’s name painted in customer’s colors; 20 under rental contracts. About 45% of the trucks carry the names of the customers.

2. Furnishing hy Applicant of specially built trucks to fit the peculiar requirements of the commodities transported. An illustration of this service is found in the contract with Swift & Company. The trucks used under that contract were specially built in accordance with the drawings and specifications of Swift & Company and the bodies of the trucks are similar to the bodies that are used by other companies in the same line, which transport similar commodities for Swift & Company. Under that contract, Applicant transports fresh meats and the trucks are equipped with insulated bodies to transport the meat safely at Ioav temperatures. Applicant has the exclusive contract with Swift as far as the Harrison plant is concerned. Although Applicant’s trucks leave from Harrison, New Jersey, they may pick up goods for Swift in New York and take them to a customer in New York, or to another branch house. Applicant possesses keys to the premises of the various customers of Smft so that when deliveries are made at night Applicant’s employees “ open the premises and put the meat in the icebox, close the icebox, and lock up the premises.” The men employed by Applicant to handle this type of work must not only he trustworthy but must possess exact knowledge of particular types of cuts of meat.

3. Provisions under which the lessee agrees to pay any increase in the chauffeurs’ wages or any increase in taxes, such as unemployment insurance taxes, etc. Practically all of the contracts, other than rental contracts under which no agreement-is made to supply chauffeurs, contain provisions of this character.

4. Provisions by which the lessee agrees to pay a stated amount for excess miles over and above the normal mileage upon which the compensation proAÚded for in the contract is predicated.

5. Provisions under which Applicant agrees to equip trucks transporting valuable cargo with protection devices such as Babaco alarms or armored cabs.

6. Provisions by which Applicant agrees to provide trucks for transportation at all times, including Sundays and holidays, and at all hours of the day. Such a provision is found in the Colgate-Palmolive-Peet Company contract. Under that contract Applicant undertakes to provide the company with all the trucks necessary to meet its requirements whatever they may be from day to day — and the company has a great fluctuation in its unit requirements.

Applicant also maintains a fleet of tank trucks for the transportation of beverage syrups, liquid sugar, and other liquids. These tank trucks are equipped with power take-off pumps for the pumping of liquid into tanks approximately twenty-five feet high.

Applicant also transports car signs in trucks which have built-in pigeon hole racks. The signs can be set in position on pins without the necessity of boxing.

Under its contract with the American Express Company, Applicant maintains one truck which is known as the valuables or money truck, and that truck is equipped with a safe and money wagon guard, and it transports money, valuables and securities. It is used in interstate movements.

In addition to the foregoing special features of contracts, varied services are rendered which, although in all cases express provision is not made for their rendition, their performance is nevertheless implied and necessary in order that the terms of the contract may be properly carried out. Some of these are:

1. Handling and delivery of goods at the direction of the lessee in the same manner as if the trucks were owned and operated by such lessee. Thus, the witness Hoffman testified that Applicant took over the chauffeurs, dispatchers and operating personnel of Colgate, as well as its trucks, and performed the service required exactly as Colgate had theretofore.

2. Handling and transporting goods without the issuance by Applicant of receipts or bills of lading, delivery and distribution being made by quantity and kind of product on receipts signed by consignees at the time of delivery.

3. Maintenance by Applicant of its own employees at the plants of its customers to control the flow, routing and the distribution of the products transported.

4. The making of inside deliveries and in many instances that of placing the goods or products on shelves of stores or in storage rooms. Under the Colgate contract, the soap products are taken from the trucks by the drivers and stored in linen rooms of hotels. Under the Swift & Company contract, meats .are taken from racks on the trucks and hung in the storage rooms of meat shops.

Hoffman testified that at no time had Applicant ever held itself out to serve all shippers of freight and that if a shipper should drive up to any of the loading platforms at any one of its garage locations and offer freight for transportation as to which no previous agreement had been made, such freight would not be accepted. He testified without contradiction that no exceptions were ever made to that rule and that Applicant never held itself out-to serve the public generally. He testified that Applicant “ could not do so because with such an undertaking it would have to accept freight when and if offered to it to the extent of its available equipment. This would involve risks of violating its contracts with its contract customers under which it is obligated to provide them with either a specified amount of equipment daily or weekly, as the case may be, or with whatever equipment may be necessary to meet their varying shipping requirements by motor vehicle.” The only advertising done by Applicant was a listing in the telephone company’s red book, and that, it felt, it was obligated to do because it did work for the telephone company.

We quoted section 2, subdivision 30, of the Public Service Law .(supra). Under that subdivision, one is not"a common carrier unless he has undertaken to transport property for the general public. It cannot be doubted that there must be an undertaking to transport property for the general public. The Legislature so provided. There is no testimony in this record that there ever was any such undertaking. The Commission made no finding that the Applicant ever made such an undertaking. The nearest approach to such a finding was the statement in the report of the principal law clerk that “ applicant’s operations more closely approximate those of a common carrier than of a contract carrier.” (Emphasis supplied.)

To understand .the meaning of the words “ undertakes to transport property for the general public ” it might be well to go back to the common-law definition of a common carrier. It will be noted from the following cases that the term common carrier ” was clearly defined at common law, and that the language employed by the Legislature in Public Service Law, section 2, subdivision 30, is similar to that found in the common-law definition.

In fact, we are agreed that the term common carrier ” is used in the statute in its common-law sense.

In Anderson v. Fidelity & Casualty Co. (228 N. Y. 475) (1920), Elkus, J., writing for this court, said at page 480:

“ The term ‘ common carrier ’ is not of statutory origin. Its meaning is to be found in the history of the law of the early days when means of travel and communication were slow and uncertain and innkeepers and carriers were restrained from the robbery and ofttimes murder of those to whom they offered their hospitality or service, only by the imposition of heavy penalties and responsibility for the safekeeping of their patrons’ goods and persons. (Nugent v. Smith, L. R. 1 C. P. D. 423; Coggs v. Bernard, 2 Ld. Raym. 909, 1 Smith’s L. Cas. 199.)

“ With the development in traveling facilities from the post horse to the chaise, the stage coach and to the modern railroad train or steamboat, the term ‘ common carrier ’ has been applied to each new development catering to the public generally, and the strict rules of the old law have been relaxed but little, for with the development came new dangers of a mechanical sort inherent to swiftly-moving machines. * * *”

And at pages 481-2:

Definitions are fundamental. Their application to any given state of facts, therefore, must be by analogy. Moore on Carriers (2nd edition, page 19) defines a common carrier as ‘ one who, by virtue of his business or calling undertakes for compensation to transport personal property from one place to another either by land or water and deliver the same for all such as may choose to employ him; and every one who undertakes to carry and deliver for compensation the goods of all persons indifferently, is, as to liability, a common carrier.’
“ A common carrier was defined, in Gisbourn v. Hurst (1 Salk. 249), to be ‘ any man undertaking, for hire, to carry the goods of all persons indifferently,’ and in Dwight v. Brewster (1 Pick. 50), to be ‘ one who undertakes, for hire, to transport the goods of such as choose to employ him from place to place.’
“ In Bank of Orange v. Brown (3 Wend. 161), Chief Justice Savage said: ‘ Every person who undertakes to carry, for a compensation, the goods of .all persons indifferently, is, as to the liability imposed, to be considered a common carrier. ’ The distinction between a common carrier and a private or special carrier is, that the former holds himself out in common, that is, to all persons who choose to employ him, as ready to carry for hire; while the latter-agrees, in some special case, with some private individual, to carry for hire. ’ (Story on Contracts, sec. 752-a.) The employment of a common carrier is a public one, and he assumes a public duty, and is bound to receive and carry the goods of any one.
“ ‘ On the whole, ’ says Prof. Parsons, ‘ it seems to be clear that no one can be considered as a common carrier, unless he has,- in some way, held himself out to the public as a carrier, in such manner as to render him liable in an action if he should refuse to carry for any one who wished to employ him. ’ (2 Pars. on Cont. [5th ed.] 166, note; Allen v. Sackrider, 37 N. Y. 341, 342.) ” (Italics the court’s.)
Judge Elkus quoted the following from Jackson A. Iron Works v. Hurlbut (158 N. Y. 34, 38), at pages 482-3: A common carrier is one who, by virtue of his calling, undertakes, for compensation, to transport personal property from one place to another for all such as may choose to employ him, and every one who undertakes to-carry for compensation the goods of all persons indifferently is, as to liability, to be deemed a common carrier. ’ ’

Hiscock, Oh. J., in a concurring opinion, said at pages 492-3:

“ As we well know the vocation of a common carrier of passengers is an evolution from that of a common carrier of goods. Classical definition of the latter is ‘ any man undertaking for hire to carry the goods of all persons indifferently.’ (Gisbourn v. Hurst, 1710, 1 Salk. 249.) And again/ To bring one within the description of a common carrier he must exercise it as a public employment; he must undertake to carry goods for persons generally and he must hold himself out as ready to engage in the transportation of goods for hire as a business, not as a casual occupation pro hac vice.’ (Story on Bailments, Sec. 495.)
“In extension of this definition the common carrier of passengers has been with accuracy defined as ‘ One who undertakes for hire to carry all persons indifferently who may apply for passage. To constitute one a common carrier it is necessary that he should hold himself out as such. This may be done not only by advertising but by actually engaging in the business and pursuing the occupation as an employment.’ (Thompson on Carriers of Passengers, p. 26, note 1.)
“The meaning and extent of these definitions of a common carrier are emphasized by recognized definitions of a private carrier. ‘ Private carriers for hire are such as make no public profession that they will carry for all who apply, but who occasionally, or upon the particular occasion undertake for compensation to carry the goods of others upon such terms as may be agreed upon. They are not common carriers because they do not make the carriage of goods for themselves or others a business and they do not hold themselves out to the public as ready and willing to carry indifferently for all persons any particular class of goods or goods of any kind whatever. ’ (Hutchinson on Carriers [3d ed.], § 35.) ” (See, also, Allen v. Sackrider, 37 N. Y. 341.)

In Gerhard & Hey, Inc., v. Cattaraugus T. Co. (241 N. Y. 413) this court (McLaughliit, J.) said (p. 417): “ The difference between a common and a private carrier is well understood. A common carrier of personal property is one who agrees for a specified compensation to transport such property from one place to another for all persons that may see fit to employ him. (Jackson Architectural Iron Works v. Hurlbut, 158 N. Y. 34; Stevenson & Co. v. Hartman, 231 N. Y. 378, p. 381.) One is not a common carrier unless he indicates to the public that he is ready and willing to do business for all that may see fit to employ him ‘ up to the capacity of his facilities. ’ (Michigan Commission v. Duke, 266 U. S. 570, p. 577; 2 Parsons on Contracts [9th ed.], 166.) ” (Italics the court’s.)

In Lough et al. v. Outerbridge et al. (143 N. Y. 271 [1894]), this court said (p. 276): “ A common carrier is subject to an action at law for damages in case of refusal to perform its duties to the public for a reasonable compensation, or to recover back the money paid when the charge is excessive.”

As previously pointed out, the provisions of the Public Service Law are closely patterned after those of the Motor Carrier Act. When the Federal Act was.under consideration by Congress, Mr. Joseph B. Eastman, then chairman of the Interstate Commerce Commission, testifying before the Senate Committee on Interstate Commerce, said: A common carrier, under the law as I understand it, holds himself out to serve all shippers of the kind that he undertakes to serve within his territory, who may wish to be served by him. He cannot pick or choose. He has to take them as they come along, provided he has the facilities for them. A contract carrier does not undertake to do that at all. He does Hot hold himself out to carry for all alike. He is just a trader. He goes out and makes bargains with particular individuals or concerns. Those bargains may be long-term contracts. Some of the large industries employ contract truckers on a long-term basis. Or he may undertake to deal with individuals with respect to specific shipments, making contracts for specific shipments.” (Hearings on S1629, S1632, S1635, Part I, 74th Congress, 1st Session, p. 69.)

In the case of N. S. Craig Contract Carrier Application (31 M. C. C. [Interstate Commerce Commission Reports] 705, 710), the Commission held that the statutory definitions contained in the Federal Act were declaratory of the common law. In that case, it was said (p. 710): “ We affirm, therefore, the conclusion of the division that the statutory definitions as now amended are essentially declaratory of the common law. In other words, the fact or not of a public holding out remains the final or ultimate test of common carriage.”

Article 1, section 2 (subd. 30, cl. d) of. the Public Service Law (N. Y.) defines a contract carrier as follows: The term ‘ contract carrier by motor vehicle ’ means any person, not included in (b) of this paragraph, who or which under special and individual contracts or agreements, * * * transports property by motor vehicle for compensation.” Provision (b) referred to-in the foregoing definition consists of the definition of “ common carrier by motor vehicle.” Article 1, section 2 [subd. 30, cl. (i)] reads: The term private carrier by motor vehicle ’ * * * means any person not included in the terms ‘ common carrier by motor vehicle ’ or ‘ contract carrier by motor vehicle ’ who or which transports by motor vehicle property of which such person is the owner, lessee or bailee when such transportation is for the purpose of sale, lease, rent or bailment or in furtherance of any commercial enterprise.”

Under the common law we find the use of the term ££ private carrier”. It would appear that the Legislature in using the term ££ contract carrier ” intended to embrace the common-law term of “ private carrier.” In 4 Williston on Contracts, section 1071, it is stated: “ * * # It was formerly the merest truism that there were but two classes of carriers: the private carrier and the common or public carrier. In certain types of carriage there is now developing a further classification by subdivision of the private carrier category, so far chiefly confined to two classes: the £ contract carrier,’ carrying on a private contract basis for certain shippers, and the £ private carrier •’ who carries its own products or products in which it has a property interest. This development is an outgrowth of legislative attempts to regulate not only common carriers by automobile, but those contract automobile carriers which transport the property of others over the highways for compensation as a regular occupation or business, * * * .”

In Hutchison, Treatise on the Law of Carriers (3rd ed.), section 35, it is stated: ££ Private carriers for hire are such as make no public profession that they will carry for all who apply, but who occasionally or upon the particular occasion undertake for compensation to carry the goods of others upon such terms as may be agreed upon. They are not common carriers, because they do not make the carriage of goods for others a business, and do not hold themselves out to the public as ready and willing to carry indifferently for all persons any particular class of goods or goods of any kind whatever; and hence the law does not compel them to accept and carry goods for anybody. Having never professed by their course of business, or in any other manner, to carry for all indifferently, they, unlike common carriers, may refuse at will to carry the goods which may be offered, without incurring any liability whatever, and may carry for one person and at the same time refuse to carry for another. But, being carriers for hire, their reward is regarded as the consideration for the undertaking and the consequent liability; and the trust being for the mutual benefit of the bailor and themselves, they belong to a different class of bailees from mandatories and incur a greater degree of responsibility.”

' Before the enactment of the Motor Carrier Act a private carrier ” was customarily one who did not undertake to carry for the public and whose transportation was done solely through contracts with its various customers. (See Michigan Commission v. Duke, 266 U. S. 570; Film Transport Co. v. Michigan Public Utilities Commission, 17 F. 2d 857; Ace-High Dresses v. Trucking Co., 122 Conn. 578; Stevenson & Co. v. Hartman, 231 N. Y. 378; Anderson v. Fidelity & Casualty Co., 228 N. Y. 475, 488; Terminal Taxicab Co. v. Dist. of Col., 241 U. S. 252.) It is dear under our statute [Pub. Serv. Law, § 2, subd. 30, cl. (d)] that a contract carrier is one who does not undertake to transport for the general public and who transports property by motor vehicle under special and individual contracts or agreements.

The statute defines a common carrier and a contract carrier. Whether the Commission applied the standards set up validly is a question of law. In Radio Comm’n v. Nelson Bros. Co. (289 U. S. 266, 276), Hughes, Ch. J., expressed that clearly as follows: “ The powers of the Commission were defined, and definition is limitation. Whether the Commission applies the legislative standards validly set up, whether it acts within the authority conferred or goes beyond it, whether its proceedings satisfy the pertinent demands of due process, whether, in short, there is compliance with the legal requirements which fix the province of the Commission and govern its action, are appropriate questions for judicial decision. These are questions of law upon which the Court is to pass. The provision that the Commission’s findings of fact, if supported by substantial evidence, shall be conclusive unless it clearly appears that the findings are arbitrary or capricious, cannot be regarded as an attempt to vest in the Court an authority to revise the action of the Commission from an administrative standpoint and to make an administrative judgment. A finding without substantial evidence to support it — an arbitrary or capricious finding — does violence to the law. It is without the sanction of the authority conferred. And an inquiry into the facts before the Commission, in order to ascertain whether its findings are thus vitiated. belongs to the judicial province and does not trench upon, or involve the exercise of, administrative authority. Such an examination is not concerned with the weight of evidence or with the wisdom or expediency of the administrative action. Interstate Commerce Commission v. Illinois Central R. Co., 215 U. S 452, 470; Interstate Commerce Commission v. Union Pacific R. Co., 222 U. S. 541, 547, 548; New England Divisions Case, 261 U. S. 184, 203, 204; Keller v. Potomac Electric Power Co., supra; Chicago Junction Case, 264 U. S. 258, 263, 265; Silberschein v. United States, 266 U. S. 221, 225 ;Ma-King Products Co. v. Blair, 271 U. S. 479, 483; Federal Trade Commission v. Klesner, 280 U. S. 19, 30; Tagg Bros. v. United States, 280 U. S. 420, 442; Federal Trade Commission v. Raladam Co., 283 U. S. 643, 654; Crowell v. Benson, 285 U. S. 22, 49, 50.” If the Commission did not follow the standards then it was not within the law. (People ex rel. N. Y. & Queens Gas Co. v. McCall, 219 N. Y. 84, 87, 88.) Whether a carrier is a contract or common carrier, after considering all the facts which are here uncontradicted, is a question of law. In Stevenson & Co. v. Hartman (Hiscock, Ch. J., 231 N. Y. 378), the question whether a carrier was a common or private carrier was treated as one of law. As a matter of law the Commission erroneously construed the meaning of the language of the statute. The uncontradicted testimony was that Applicant was not engaged in transporting' property' for the general public. There was, of course, as indicated {supra), no finding that it was. The service rendered was pursuant to private contracts with customers, in which no one else was interested and no benefit or disadvantage accrued to any other person by the rendition of that service.. There was here no holding out by Applicant that it would serve the public indifferently to the limit of its capacity. It made no profession to carry for all, and was under no obligation to take whatever goods might be tendered. It made such contracts as it saw fit and at prices agreed upon. The contracts here were entered into generally after a survey of the customer’s trucking needs. In some cases Applicant has taken over the customer’s trucks and drivers. Special type services are rendered. An undertaking to transport for the general public would be inconsistent with appellant’s contract obligations to its customers.

In view of the facts disclosed here, the language quoted from the two following cases seems particularly apt. In Frost Trucking Co. v. R. R. Com. (271 U. S. 583, 592) it was said: “ That, consistently with the due process clause of the Fourteenth Amendment, a private carrier cannot be converted against his will into a common carrier by mere legislative command, is a rule not open to doubt * * * . It was expressly so decided in Michigan Commission v. Duke, 266 U. S. 570, 577-578. See also, Hissem v. Guran, 112 O. S. 59; State v. Nelson, 65 Utah 457, 462.”

In Michigan Commission v. Duke (266 U. S. 570), the court said at page 577: “ * * * One bound to furnish transportation to the public as a common carrier must serve all, up to the capacity of his facilities, without discrimination and for reasonable pay. The act would put on plaintiff the duty to use his trucks and other equipment as a common carrier in Michigan, and would prevent him from using them exclusively to perform his contracts. This is to take from him use of instrumentalities by means of which he carries on the interstate commerce in which he is engaged as a private carrier and so directly to burden and interfere with it. * * * ” (See, also, Film Transport Co. v. Michigan Public Utilities Commission, 17 F. 2d 857; Smith v. Cahoon, 283 U. S. 553.)

We have not overlooked the case of Cornell Steamship Co. v. U. S. (321 U. S. 634, 638). In that case, however, the Supreme Court said: “ The commission found from evidence offered that Cornell did so hold itself out to the general public. Upon review the District Court held the commission’s finding was supported by substantial evidence. The opinions of the commission and the District Court showed the evidence relied on and it is unnecessary to repeat it here. Sufficient it is to say that we agree with the District Court’s conclusion.”

The opinion of the District Court will be found reported in 53 F. Supp. 349 and on page 352 it was pointed out that: In making its finding that the plaintiff, pursuant to the Act, is a common carrier, because it held itself out as such, the Commission referred in particular to the testimony of plaintiff’s president set forth in the footnote.4 ”

We think that the testimony quoted in footnote 4 completely distinguishes the Cornell case from the instant one.

The order of the Appellate Division should he reversed, with costs; the determination and orders of the Public Service Commission here in issue should be set aside and annulled, and the Commission should be ordered and directed to issue to appellant a permit to engage in the transportation as a contract carrier of commodities generally within the territory and to and from the points where the evidence shows it to have been engaged in operation on February 1, 1938, and continuously since that time.

Desmond, J.

(dissenting). The Commission has held that petitioner, as to certain of its operations, is not a contract carrier by motor vehicle ” but a common carrier by motor vehicle ” within the Act which provides for the regulation of motor carriers, and within the Act’s definition of a “ common carrier by motor vehicle ” as one who “ undertakes * * * to transport property, or any class or classes of property, for the general public by motor vehicle for compensation * * * ” [Public Service Law, § 2, subd. 30, cl. (b)]. No one doubts that the quoted language is a reformulation of the ancient common-law definition. The problem is to apply that definition to the ever-changing methods devised by businessmen to attract and satisfy customers. If there is room for a difference of opinion as to whether a particular method amounts to common carriage, then we had better leave the solution of the problem to the Public Service Commission, which- the Legislature has set up and equipped for such tasks.

Petitioner has a great many customers and operates, numerous trucks and trailers of different kinds. Despite the real or fancied superiority of its service, it does in fact compete with other truckers within its chosen territory. Although it has never advertised to any great extent, it employs solicitors whose persuasions continually add new customers to its list. But nearly all its trucking, petitioner points out, is done under written contracts or, at least, under special arrangements. It follows, says petitioner, that it has never undertaken to do hauling for “ the general public ’ ’ and so is a ‘‘ contract carrier ’ ’ [Public Service Law, § 2, subd. 30, cl. (d)] and cannot be classified as a common carrier. If that circumstance exempts petitioner from the regulation of “ common carrier by motor vehicle ” which the Legislature has deemed essential in the public interest, then petitioner, though constantly increasing its business and taking on new customers, will be forever immune from the controls imposed on its competitors, so long as it can show a written or oral contract or prior arrangement for every job it does. If that be the meaning of the statute, then the Legislature has left in it a hole big enough for petitioner to drive its trucks through. This court long ago held that neither the fact that a drayman had no “ regular tariff of charges ” nor the fact that as to each of his jobs “ a special price was fixed by agreement ” kept him out of the classification of common carrier (Jackson A. Iron Works v. Hurlbut, 158 N. Y. 34, 37). Truckmen, wagoners, cartmen and porters who undertake to carry goods for hire as a common employment in a city or from one town to another, are common carriers ”, says the opinion in that case.

If petitioner-had been organized and if it existed solely to "serve one customer or a few chosen customers under fixed contracts, then it would plainly be a contract carrier. If, on the other hand, it made a practice of lining up its vehicles in. the public square to await customers, as did the draymen in olden days, then just as obviously it would be a common carrier (Stevenson & Co. v. Hartman, 231 N. Y. 378.) But to be a common carrier it does not have to cry its wares to the whole public (see Terminal Taxicab Co., Inc., v. Dist. of Col., 241 U. S. 252, 255, wherein Justice 'Holmes wrote No carrier serves all the public ”). It need only hold itself out publicly to do motor haulage. We think its solicitors do that when they make their rounds looking for new customers, even though they work from a selected list of prospects.

None of the many cases mentioned or quoted from in the majority opinion deny the right of the Commission to classify this particular kind of trucking as common carriage. The most recent authoritative case — and surely the one nearest to ours — is Cornell Steamboat Co. v. U. S. (321 U. S. 634, April 3, 1944). There the court had before it for review an Interstate Commerce Commission order declaring Cornell Steamboat Company, a “ common carrier by water ” under a statute (U. S. Code, tit. 49, § 902, subd. d) which defined that term as covering “ any person which holds itself out to the general public to engage in the transportation by water ” et cetera; The company said it was a “ contract carrier ” because its services were performed under individual contracts or agreements ” (see definition of contract carrier ” in U. S. Code, tit. 49, § 902, subd. e). The company uses thirty-three tugs in towing other craft for various customers. The largest part (some 88%) of the towing is done under time contracts entered into with customers for periods of years. “ Arrangements for all its towing services are based on separate agreements ” (see 53 F. Supp. 349 for statement of facts.) The three-judge Federal District Court and the United States .Supreme Court held that there was substantial basis for the Commission’s determination that Cornell Steamboat Company was a common carrier by water ”, despite the “ time contracts ” and the “ separate agreements ”. We feel the same way about this case.

Bippey, Lewis and Thachee, JJ., concur with Conway, J.; Desmond, J., dissents in opinion in which Lehman, Ch. J., and Loughban, J., concur.

• Order reversed, etc.


author: Lehman, Ch. J. Desmond, J.

text:
    The People of the State of New York ex rel. Adam Wachowicz, Respondent, against Walter B. Martin, as Warden of Attica State Prison, Defendant. The People of the State of New York, Appellant.
    Argued March 9, 1944;
    decided July 19, 1944.

      Nathaniel L. Goldstein, Attorney General (Orrin G. Judd and Worthy B. Paul of counsel), for appellant.
    I. The sentence based upon the plea to attempted grand larceny in the second degree, was a valid conviction and the commitment thereunder cannot be interfered with. (People ex rel. Prince v. Brophy, 273 N. Y. 90; People v. Scobie, 257 App. Div. 854, 281 N. Y. 796; People v. Rosen, 251 App. Div. 584, 275 N. Y. 627; People
      v. Farley, 252 App. Div. 811, 277 N. Y. 617; People v. Resnick, 21 N. Y. S. 2d 483; People v. Miller, 143 App. Div. 251, 202 N. Y. 618; People v. McDonnell, 92 N. Y. 657; People v. Miles, 289 N. Y. 360; Chicago Life Insurance Co. v. Cherry, 244 U. S. 25; Chicot County Dist. v. Bank, 308 U. S. 371; People ex rel. Carr v. Martin, 286 N. Y. 27; People ex rel. Bedell v. Foster, 132 App. Div. 116; Patton v. United States, 281 U. S. 276; People v. Cassidy, 213 N. Y. 388; Matter of Grae, 282 N. Y. 428.) II. Relator cannot by writ of habeas corpus test the validity of the indictment and his plea of guilty thereunder. (People ex rel. Prince v. Brophy, 273 N. Y. 90; People ex rel. Schneider v. Hayes, 108 App. Div. 6; People ex rel. Todak v. Hunt, 153 Misc. 783, 243 App. Div. 859; People v. Hammersmith, 229 App. Div. 385; People ex rel. Fryer v. Brophy, 149 Misc. 562, 241 App. Div. 653; People v. Giordano, 114 Misc. 62, 231 N. Y. 633; The People v. D’Argencour, 95 N. Y. 624; People ex rel. Krohn v. Thomas, 133 Misc. 145; People v. Miles, 289 N. Y. 360.)
    No appearance for respondent.
   Lehman, Ch. J.

The relator was indicted in January, 1941, by the Grand Jury of Erie County. In the first count of the indictment he was charged with ‘ Burglary in the Third Degree, contrary to the Penal Law, Sections 400, 404 ”, committed by feloniously breaking into and entering a dwelling house with intent to commit a crime therein. In the second count he was charged with Buying, Receiving, Concealing or Withholding Stolen or Wrongfully Acquired Property, contrary to the Penal Law, Section 1308, in that he * * * knowing the same to have been stolen and appropriated wrongfully in such manner as to constitute larceny, feloniously bought, received, concealed and withheld property stolen from Edna Mueckl. ’ ’ Upon arraignment the relator pleaded not guilty but three months thereafter he withdrew his plea of not guilty and, in the presence if his counsel, pleaded guilty to Attempted Grand Larceny 2nd degree on 2nd count of the indictment.” Upon that plea he was convicted of attempted grand larceny second degree and on May 2,1941, he was sentenced as a third offender to imprisonment for the term of not less than two years and six months nor more than five years.

A defendant “ may be found guilty of any crime, the commission of which is necessarily included in that with which he is charged in the indictment.” (Code Crim. Pro., § 445.) The crime of “ Attempted Grand Larceny 2nd degree ” of which the relator has been adjudged guilty upon his plea of guilty is not “ necessarily included in that with which he is charged in the indictment ”, nor would the court have power to amend the indictment, even with the relator’s consent, to include the crime of grand larceny. (People v. Miles, 289 N. Y. 360.)

“ No person shall be held to answer for a capital or otherwise infamous crime * * * unless on indictment of a grand jury.” (N. Y. Const., art. I, § 6.) Until the Grand Jury has found an indictment accusing a person of an infamous crime, no court has jurisdiction to try a charge otherwise made or to accept a plea of guilty. The Legislature cannot confer upon the courts jurisdiction which the Constitution commands shall not be exercised by the courts. Since the Constitution commands that no person may be held to answer for a felony “ unless on indictment of a grand jury ”, the Legislature cannot authorize a court to pronounce judgment convicting a person of an infamous crime upon the plea of guilty where no accusation has been made by a Grand Jury (People ex rel. Battista v. Christian, 249 N. Y. 314), nor may it authorize a court to amend an indictment to include an accusation of criminal acts independent of any accusations presented by the Grand Jury in the indictment. We need not now decide whether, by section 295 of the Code of Criminal Procedure, the Legislature intended to confer a power of amendment so broad. It could not do so. " (People v. Miles, supra.) We are agreed that the trial court erred when it pronounced judgment upon the relator’s plea of guilty of a crime not necessarily included in that with which he i§ charged in the indictment.”

The relator has challenged by writ of habeas corpus the lawfulness of his detention under the sentence imposed upon him. The court at Special Term sustained the challenge, holding that the sentence was a nullity, and remanding the relator to the eus-r tody of the Sheriff, to be held under the indictment for burglary in the third degree and for criminally réceiving stolen goods. Two previous writs obtained by the relator for the same purpose and on the same ground had been dismissed, the court holding that the judgment is valid. The People of the State appealed from the order of Special Term in the third habeas corpus proceeding, holding the judgment invalid. The Appellate Division affirmed the order, two justices dissenting.

Though the judgment of conviction of the charge of attempted grand larceny is erroneous, the question remains whether it is a nullity and whether a person held thereunder may challenge the lawfulness of his detention by writ of habeas corpus. That question was not presented in People v. Miles (supra) for there the judgment finding the defendant guilty was challenged and was reversed on appeal from the judgment. In People ex rel. Battista v. Christian (supra), no criminal prosecution had been commenced by presentment or indictment of the Grand Jury and the court for that reason was forbidden by the Constitution to hold the relator to answer for any infamous crime and had no jurisdiction to pronounce judgment finding the relator guilty of any such crime. The judgment in that case was not based upon an erroneous judicial ruling in a pending judicial proceeding. It was based upon a ruling of a judge before whom no judicial proceeding was pending. Such a judgment is, of course, a nullity, and a person restrained thereunder is entitled to discharge upon the hearing of a writ of habeas corpus. Here the judgment is based upon a ruling by the court in a judicial proceeding which had been commenced byr an indictment of the Grand Jury and which was pending in the County Court of Erie County when judgment was entered. The County Court of Erie County which pronounced sentence has general jurisdiction both of the crime charged in the indictment and of the crime of which the relator has been found, guilty, and had jurisdiction of the person of the relator when he was arraigned upon that indictment and pleaded not guilty to the indictment, and when the relator withdrew that plea and offered to plead guilty to attempted grand larceny second degree under the second count of the indictment. In the judicial proceeding then pending the court was called upon to decide the question' of law whether the commission of the crime of grand larceny is “ necessarily included in that with which he [the relator] is charged in the indictment. ’ ’ The crime of grand larceny is not necessarily included, for some essential elements of that crime are not essential elements in the crime charged, and the facts alleged in the indictment, though sufficient to constitute the crime charged therein, would not be sufficient to constitute the crime of grand larceny. An analogous question is presented where a defendant moves for arrest of judgment “ on a plea or verdict of guilty ” on the ground that the facts stated in the indictment do not constitute a crime. (Code Grim. Pro., §§ 331, 467.) Error there may be corrected by appeal, but the judgment entered upon an erroneous determination of a question of law by a court of competent jurisdiction is not a nullity, and may not be challenged by a writ of habeas corpus.

The infirmity inherent in a judgment based upon a verdict or plea where the indictment fails to state facts sufficient to constitute any crime is essentially the same as the infirmity inherent in a judgment based upon a verdict or plea where the indictment fails to state facts sufficient to constitute the particular crime of which the defendant has been found guilty. In both cases, the defendant has been held to answer for an infamous crime upon indictment found by a Grand Jury, and the court has jurisdiction of the person of the defendant and general jurisdiction of the crime of which the defendant was found guilty, and has jurisdiction to determine whether or not the indictment sufficiently charges that crime. In proper circumstances the County Court of Erie County would certainly have power to render the judgment under which the relator is restrained of his liberty and this court long ago has pointed out that a judgment of a tribunal 1 ‘ competent to render- the judgment under some circumstances ” bars from discharge in habeas corpus proceedings a person held by virtue of such judgment. (People ex rel. Tweed v. Liscomb, 60 N. Y. 559, 569; People ex rel. Carr v. Martin, 286 N. Y. 27; Matter of Morhous v. N. Y. Supreme Court, 293 N. Y. 131.)

In the case last cited, we have said that: “ An appeal to a higher court is ordinarily the appropriate corrective process for error at the trial ” (p. 140). No sufficient ground has been shown why an exceptional corrective process is required here. The relator was properly held to answer for the crime charged in the indictment. He sought and obtained the benefit that might accrue to him from a finding of guilt of a crime connected with the same transaction, though not necessarily included in the crime charged in the indictment. The court had jurisdiction to determine whether in those particular circumstances it was authorized to render a judgment which it was certainly competent to render in some circumstances. Its judgment was not a nullity and the defendant who asked the court to render an erroneous judgment in a pending judicial proceeding may not thereafter when it suits his convenience, challenge the judgment by habeas corpus.

The orders should be reversed, the writ dismissed, and the relator remanded to the custody of the warden of Attica State Prison, Attica, New York.

Desmond, J.

(dissenting). The courts below gave relator an order of habeas corpus on his showing that he had been indicted for one crime but had pleaded guilty to an entirely different offense. From the record no one can say that the crime he admitted had anything to do with the facts pleaded in the indictment or whether or not the charge he was adjudged guilty of was based on any facts at all or just arbitrarily picked out of the air. The majority opinion in this court agrees that the trial court erred in taking a guilty plea to the crime of attempted grand larceny, second degree, as against an indictment charging the crime of criminally receiving or withholding stolen property. But that error, says the majority, was only an ordinary error, not one going to the fundamentals of jurisdiction and so not justifying the use of habeas corpus to correct it. We have held to the contrary, most recently in People v. Miles (289 N. Y. 360). There, referring to the amendment of an indictment at the trial, by consent, we said: 1 ‘ The change went to the substance of the accusation and was so treated at the trial. As such it was not an accusation by á grand jury as required by the constitution * * * ” (p. 363).

The whole Miles opinion makes it plain that this court intended to hold that the error in that case was a fundamental one. Following the language above quoted, there is in the Miles opinion an excerpt from the Supreme Court’s famous pronouncement in Ex Parte Bain (121 U. S. 1) which, in unmistakable terms (see Bain opinion at p. 13), brands it a violation of the Federal Constitution for a trial court to make a change of substance in an indictment as found by the Grand Jury (to the same effect, see 1 Bailey on Habeas Corpus, page 126). Indeed, we could not have reversed the judgment of conviction in People v. Miles unless we had held the error to be fundamental since there was in'the record no exception to the trial court’s ruling-permitting the amendment, but, instead, a consent thereto by defendant Miles. Only when the error amounts to a disregard of fundamental rights may we overlook the absence of an exception. (People v. McLaughlin, 291 N. Y. 480, 483.)

The holding of the Miles case that an amendment by the trial court of an indictment so as to charge a different crime, is, even when consented to by the defendant, a violation of the Constitution, is in accord with the old case of People v. Campbell (4 Park. Cr. Rep. 386, 387) referred to in Esc Parte Bain {supra) and in People of the State of N. Y. v. Dohring (59 N. Y. 374, 380). The position of the present relator, Wachowicz, is much stronger than was that of Miles, since the indictment against-Wachowicz was never amended or sought to be amended, so as to charge the crime of attempted grand larceny. This case is the . plainest possible one of an indictment for one crime and a judgment of conviction of an entirely different crime. What more need relator show?

The majority hold that there was all requisite jurisdiction in the trial court to pronounce the judgment against relator, since that court had acquired jurisdiction over his person by means of the indictment and had general subject matter jurisdiction over the crime of which he was sentenced. If that be jurisdictional sufficiency, then there never can be fundamental error in convicting a man of one crime though indicted for a different crime, so long as the court has general criminal jurisdiction. In other words, it can never be a jurisdictional error to convict a defendant of any indictable offense described in the Penal Law, so long as there be an indictment charging any other indictable offense. I think a criminal judgment, to be jurisdictionally valid, must have the -support of an indictment charging the crime adjudged, or a higher degree thereof, or a crime necessarily involving the crime on which sentence is imposed. The judgment, as in every law suit, must be responsive to an issue raised by the pleading. (1 Bailey on Habeas Corpus, pp. 83, 638.) Besides jurisdiction of person and subject matter, the court must have, says Brown on Jurisdiction (see §§ 84 and 110), “ authority to render the particular judgment If not, habeas corpus is the remedy. (People ex. rel. Liss v. Supt. of Women’s Prison, 282 N. Y. 114, 119). So the writ lies ”, (29 C. J., p. 44), where * * * petitioner is convicted of an offense not charged or included in the indictment, information or complaint. ’ ’

It matters not what the general powers and jurisdiction of a court may be; if it act without authority in the particular case, its judgments and orders are mere nullities, not voidable, but simply void, protecting no one acting under them, and constituting no hindrance to the prosecution of any right ” {People ex rel. Tweed v. Liscomb, 60 N. Y. 559, 568). Jurisdiction of the subject-matter is the power lawfully conferred to deal with the general subject involved in the action ” (Hunt v. Hunt, 72 N. Y. 217, 230, emphasis supplied). I agree that only radical jurisdictional defects justify the use of habeas corpus, but I am convinced that we are faced with just such a defect here.

It is urged that the only available remedy was by appeal from the judgment of conviction. But one who pleads guilty may not appeal unless the judgment is totally void, and if it be void, then he is entitled to habeas corpus.

Relator’s plea of guilty, while it was in fact a consent that he be sentenced for the crime for which he had not been indicted, could not be an effective waiver of Ms constitutional rights. It could not “ authorize a substantial change, in its fundamental mode of proceeding ”. {The People v. Guidici, 100 N. Y. 503, 508; see Cancemi v. The People, 18 N. Y. 128, 136.)

This particular relator does not deserve sympathy. Having made a bargain with the prosecutor and the court, he refuses to abide by it. But if the great writ of habeas corpus has been for centuries esteemed the best and only sufficient defense of personal freedom ” (Ex parte Yerger, 8 Wall. [U. S.] 85, 95), then a restriction of its scope is a matter fraught with dangers most grave. The orders should be affirmed.

Rippey, Lewis and Thacheb, JJ., concur with Lehman, Ch. J.; Desmond, J., dissents in opinion in which Lotjghban and Conway, JJ., concur. '

Orders reversed, etc.