author: Conway, J.

text:
    Irma A. Culver et al., Respondents, v. Title Guarantee and Trust Company, as Trustee under an Agreement Made by Mary Clark de Brabant and Others, Appellant.
    Argued October 7, 1946;
    decided November 21, 1946.

      William T. Griffin and Joseph V. McKee for appellant.
    I. Proper statutory construction compels the conclusion that the term “ creator ” as used in the statutes means all the settlors when there are more than one. (Personal Property Law, § 23; Real Property Law, § 118.) II. The trust indenture in suit is not only a trust agreement between the settlors and the trustee, but also a contract between the settlors. Personal Property Law (§ 23) and Real Property Law (§ 118) do not apply to such contracts, and partial revocation by one settlor of his contribution is not permitted without the other settlor’s consent. (Rastetter v. Hoenninger, 214 N. Y. 66.)

      Henry L. Kanter for respondents.
    I. The notice of November 17,1945, was sufficient to revoke the trust created by the agreement dated January 29,1926 as to 60/160ths thereof. (Personal Property Law, § 23; Waters & Co. v. Gerard, 189 N. Y. 302; Bryan v. Knickerbocker, 1 Barb. Ch. 409; Haines v. Healy, 15 Barb. 296; Graff v. Bonnett, 31 N. Y. 9; Matter of Wentworth, 190 App. Div. 829, 230 N. Y. 176; Smith v. Title Guarantee & Trust Co., 287 N. Y. 500; People ex rel. N. Y. C. R. R. Co. v. Woodbury, 208 N. Y. 421; O’Hagan v. Kracke, 165 Misc. 4, 253 App. Div. 632; Hoskin v. Long Island Loan & Trust Co., 139 App. Div. 258, 203 N. Y. 588; Smith v. Title Guarantee & Trust Co., 287 N. Y. 500; Baker v. Fifth Avenue Bank of New York, 225 App. Div. 238; Guaranty Trust Company of New York v. Armstrong, 43 N. Y. S. 2d 897, 268 App. Div. 763, 294 N. Y. 666; Doctor v. Hughes, 225 N. Y., 305; Aranyi v. Bankers Trust Co., 201 App. Div. 706.) II. No question of contract obligation is involved. . (Van Cott v. Prentice, 104 N. Y. 45; Streat Coal Co., Inc., v. Frankfort Gen. Ins. Co., 237 N. Y. 60; Rose v. Bristol, 174 App. Div. 15; Ward v. Union Trust Co., 172 App. Div. 569; City of New York v. Interborough R. T. Co., 257 N. Y. 20; Schwarts v. Fulton Trust Co., 119 Misc. 831.)
   Conway, J.

In January, 1926, one Mary Clark de Brabant as party of the first part, the plaintiffs as parties of the second part and the defendant trust company as party of the third part entered into an agreement in writing under which Mary Clark de Brabant paid and delivered to the defendant $60,000 in cash and the plaintiffs paid and delivered real and personal property of the stated value of $60,000, in trust, to collect the income and to pay it to one plaintiff for life, then to the other if she should survive the first and, on the death of the survivor, to pay over and deliver the principal to such person or persons as Mary Clark de Brabant might by an instrument in writing direct and, in default of such direction, to her daughter, Katherine Culver. Williams, or if she should not at that time be living then to the lawful issue of Katherine Culver Williams per stirpes.

Subsequently Mary Clark de Brabant added to the trust the further sum of $40,000 pursuant to an option to increase the -principal contained in one of the paragraphs of the agreement.

In 1939 Mary Clark de Brabant died leaving a will in which her daughter, Katherine Culver Williams, was named as residuary legatee. She did not during her lifetime designate any person or persons to receive the principal of the trust.

On the 17th day of November, 1945, Katherine Culver Williams and two adult daughters, her only issue, were alive. On or about that date a notice was served upon the defendant whereby the plaintiffs as two of the creators of the trust purported to revoke it as to the 60/160ths fractional share of the assets representing their contribution and Katherine Culver Williams and her two daughters consented thereto.

There is thus presented for determination the question whether Personal Property Law, section 23, and Real Property Law, section 118, permit partial revocation by less than all of the settlors where one of several joint settlors is dead and the surviving settlors attempt to revoke only as to their own contribution.

Personal Property Law, section 23, and Real Property Law, section 118, insofar as any construction is necessary here, are substantially the same. The former reads as follows: “ § 23. Revocation of trusts upon consent of ail persons interested.

Upon the written consent of all the persons beneficially interested in a trust in personal property or any part thereof heretofore or hereafter created, the creator of such trust may revoke the same as to the whole or such part thereof, and thereupon the estate of the trustee shall cease in the whole or such part thereof.”

When, originally, an attempt was made to revoke this trust in its entirety, the Appellate Division properly directed judgment for the defendant (Culver v. Title Guar. & Trust Co., 269 App. Div. 627) and pointed out in the course of its opinion, citing cases, that, were there no applicable statutes and had a power of revocation been reserved to the joint settlors of the trust — which was not the case here — all would be required to join in the revocation and that, had death occurred as to one, the survivors would be unable to effect it. We do not think that a different rule has been made applicable by the statutes referred to where revocation is sought by the surviving settlors. Were all of the joint settlors living, the consent of each to a revocation either in whole or in part would be necessary. There appears to be equal reason for forbidding whole or partial revocation when one of them is dead and may not be heard. The deceased settlor may have departed this life secure in her belief that she had so arranged her affairs that her daughter would be benefitted, if alive, by the receipt of a principal sum contributed not only by her but by other settlors and that if her daughter were not alive her grandchildren would receive such benefit. We think it fairer and more in consonance with legislative intent not to deprive her by reason of her death, of her right to refuse to consent to partial or total revocation. If the Legislature desires to provide otherwise it may do so by explicit enactment. The two property statutes to which we have made reference use the word “ creator ”. By General Construction Law, section 35 “ words in the singular number include the plural, and in the plural number include the singular.” We read the word “ creator ” in the statutes as meaning all of the settlors who make an agreement such as the one presented here. Thus all must join to effect partial or total revocation.

The case of Guaranty Trust Co. v. Armstrong (294 N. Y. 666) is not in conflict with these views. There a husband and wife transferred property to the plaintiff trust company to be held in trust under an agreement by which the trustee was to pay over the income “ to the parties of the first part jointly during their lives, and upon the death of, either, to the survivor of them during his or her life.” The settlors agreed that the trust might be terminated at any time by them during their joint lives, authorized the trustee to retain specified securities in which the trust, fund might be invested when delivered to it and limited the power of the trustee to sell such securities to instances where written consent was obtained by it from both parties during their joint lives, or thereafter, from the survivor. The agreement further provided that the principal should be distributed upon the death of the survivor-as directed by his or her last will and testament. It then read: “If the survivor shall fail to dispose of the said trust fund by his or her last will and testament, the trust fund shall go to and be distributed among his or her next of kin in accordance with the Statute of Distributions of the State of New York.” In other words the two settlors retained in themselves complete control over the funds during their joint lives and vested in the survivor complete beneficial interest during life, together with all remainder and reversionary interests therein. After the death of her husband the surviving wife- purported by instrument to revoke the trust under section 23 of the Personal Property Law as to the one half of the trust property contributed by her. No remainder had been there created as in Whittemore v. Equitable Trust Co. (250 N. Y. 298) and in Engel v. Guaranty Trust Co. (280 N. Y. 43) or as in the instant case where a vested remainder in the daughter of Mary Clark de Brabant came into existence upon the death of her mother. The deceased settlor had had no power under the agreement to dispose of the principal of the trust by last will and testament. That was granted only to the survivor. Clearly with respect to the surviving settlor’s contribution this was not a “ spendthrift trust ” within the contemplation of Personal Property Law, section 15 (Schenck v. Barnes, 156 N. Y. 316; Matter of Blake, 226 App. Div. 580, affd. 252 N. Y. 613) and that statute expressly authorized alienation of her beneficial interest therein.. We held the revocation to be a valid one; that the surviving wife had a reversion in that portion of the corpus of the trust contributed by her, was the only person in any manner interested therein (indeed she had never relinquished complete control of it) and thus was entitled in her own right to demand and receive the return of that which she had contributed (see Doctor v. Hughes, 225 N. Y. 305; Matter of Schotts v. Central Hanover Bank & Trust Co., 295 N. Y. 488; National Park Bank v. Billings, 144 App. Div. 536, 541, affd. on opinion below 203 N. Y. 556; Wells v. Squires, 117 App. Div. 502, affd. upon opinion of Scott, J., 191 N. Y. 529; Matter of Bloodgood, 184 App. Div. 798, 801).

The judgment should be reversed and the matter remitted to the Appellate Division for proceedings not inconsistent with this opinion, with costs in this court and in the Appellate Division payable to the defendant out of the fund.

Loughran, Ch. J., Lewis, Desmond, Thaoher, Dye and Fuud, JJ., concur.

Judgment accordingly.


source: Caselaw Access Project

author: Loughran, Ch. J.

license: Public Domain

text:
    Advance Music Corporation, Appellant, v. American Tobacco Company et al., Respondents.
    Argued March 6, 1946;
    decided November 21, 1946.

      Lee V. Eastman for appellant.
    The complaint states a valid cause of action for damage suffered as a result of respondents’ fraudulent misrepresentations. (Cooper v. Weissblatt, 154 Misc. 522; Ultramares Corp. v. Touche, 255 N. Y. 170; State Street Trust Co. v. Ernst, 278 N. Y. 104; Seavey, Cardozo and the Law of Torts [1938], 52 Harv. L. Rev. 372; Morse v. Swits, 19 How. Prac. 275; Brackett v. Griswold, 112 N. Y. 454; Greene v. Mercantile Trust Co., 60 Misc. 189, 128 App. Div. 914; Chester v. Dickerson, 52 Barb. 349, 54 N. Y. 1; Eaton, Cole & Burnham Co. v. Avery, 83 N. Y. 31.)

      George W. Whiteside, Alex Graven and Dwight R. Qollin for respondents.
    The causes of action contained in the complaint are insufficient. (International Products Co. v. Erie R. R. Co., 244 N. Y. 331; Jaillet v. Cashman, 115 Misc. 383, 202 App. Div. 805, 235 N. Y. 511; Greedon v. Automatic Voting Machine Corp., 243 App. Div. 339, 268 N. Y. 583; Gourteen Seed Co. v. Hong King & S. B. Co., 245 N. Y. 377; Marlin Fire Arms Co. v. Shields, 171 N. Y. 384; American Washboard Co. v. Saginaw Mfg. Co., 103 P. 281; Innovation Ingenuities, Inc., v. New York Times Company, 161 App. Div. 929, 217 N. Y. 653; Mosler Co. v. Ely-Norris Co., 273 U. S. 132; Nann v. Raimist, 255 N. Y. 307; O’Connell v. Press Publishing Co., 214 N. Y. 352; Bosi v. New York Herald Co., 33 Misc. 622, 58 App. Div. 619; King v. Sun Printing & Publishing Assn., 84 App. Div. 310; Mackin v. Becker, 256 App. Div. 1062; Tower v. Crosby, 214 App. Div. 392.)
   Loughran, Ch. J.

The amended complaint in this action is attacked by motion under rule 106 of the Rules of Civil Practice for insufficiency on its face. Three separately stated causes of action are pleaded therein.

Bv way of induóement, the first cause makes these allegations: The plaintiff is a corporation engaged in the business of publishing musical compositions. Its revenue is chiefly derived from sales of sheet music made to the public and from licenses for use of its compositions in the entertainment field. It expends large sums of money for advertising in an effort to create a general impression that its compositions are or will be among the most popular song successes of the day! Methods employed by the plaintiff to that end include performances of its compositions by bandleaders and entertainers through the media of radio, phonograph recordings and motion pictures. Jobbers, dealers and the general public normally, purchase musical compositions which are currently made popular by means of advertising of that kind. Sheet music is handled by jobbers and dealers on consignment. Premature return or other failure to promote sales thereof brings about serious loss to the publisher.

In respect of the wrong asserted by the plaintiff, the first cause of action goes on to say: The defendants — a tobacco company and an advertising concern — are the creators of a commercial coast-to-coast radio program which is broadcast each Saturday night. A wide listening audience estimated to be in excess of fifteen million people per week is attracted to this program by reason of the constant representations * * *

made by the defendants that said program consists of the rendition of the nine or ten most popular songs of the week in the relative order of their popularity based upon an extensive and accurate survey conducted throughout the nation.” Weekly lists of the songs thus classified by the defendants upon their radio program are widely circulated by them, “ so that the public, dealers, jobbers, motion picture companies, phonograph companies, electrical transcription companies, radio station performers and entertainers, and others, may be induced to rely upon such lists and purchase and use the music stated to be the most popular.” In pursuing this course, the defendants act wantonly and without good faith. Their selections and ratings of the nine or ten most popular songs of the week “ are in fact the choice or result of caprice or of other considerations foreign to a selection- based on an accurate and extensive survey of the nation-wide popularity of such songs and the relative order of their popularity for the current week of such broadcast.” Songs published by the plaintiff which are among the first nine or ten most popular musical compositions of the nation are either passed over by the defendants or placed on their radio program and weekly lists in an improper order of popularity.

In respect of the damages complained of by the plaintiff, the first cause of action sets forth the following particulars: . Music jobbers and dealers, bandleaders, entertainers, supervisors of radio programs, phonograph recording companies and motion picture producers in choosing songs are largely influenced by the selections and ratings which the defendants disseminate by way of their radio program and weekly lists. On that account, jobbers and dealers prematurely return songs of the plaintiff and thereby prevent distribution thereof to retail outlets for sale to the public. For the same reason, most users of music are induced to accept the songs heralded by the defendants and to neglect songs published by the plaintiff. In consequence of all this, the measures taken by the plaintiff for exploitation of its songs are frustrated; the value of its musical compositions is depreciated; its revenue is diminished; and its property rights and business prestige are impaired.

The foregoing parts of the first cause of action are incorporated by reference into the second cause of action and are there followed by the further allegation that “ the aforesaid acts and representations on the part of the defendants are made with intent to injure the plaintiff.” Thus in sum and substance the second cause of action constitutes a statement to this effect: The defendants are wantonly causing damage to the plaintiff by a system of conduct on their part which warrants an inference that they intend harm of that type. So read, the second cause of action is, we think, adequate in its office as a plaintiff’s pleading.

In Skinner & Company v. Shew & Company [1893], (1 Ch. 413, 422) Lord Justice Bowen said. At Common Law there was a cause of action whenever one person did damage to another wilfully and intentionally, and without just cause or excuse ”. So, in Aikens v. Wisconsin (195 U. S. 194) the court said: “ It has been considered that, prima facie, the intentional infliction of temporal damage is a cause of action, which, as a matter of substantive law, whatever may be the form of the pleading, requires a justification if the defendant is to escape.” (p. 204, per Holmes, J.) These broad propositions were approved by Sir Fbedebick Pollock as authority for his doctrine that all willful harm is actionable unless the defendant justify or excuse his conduct. (Pollock, The Law of Torts [14th ed.], 17-18.)

On the other hand, the view that all intentional wrongdoing is prima facie tortious has been rejected by other high authorities who contrariwise maintain that every plaintiff must bring his ease under some accepted head of tort liability. “ The only adequate answer to many claims for damages [said Sir John Salmond] is the mere ipse dixit of the law that no such cause of action is recognized.” (Salmond on Torts [10th ed.], 15-16, note m.) So, Mr. P. A. Landon, as editor of the fourteenth edition of Pollock’s Law of Torts, says (p. 46): The law is to-day, as it has always been, that only that harm which falls within one of the specified categories of wrong-doing entitles the person aggrieved to a legal remedy. The categories of tort (not, of course, the categories of particular torts) are closed.”

This difference over the general principles of liability in tort was composed for us in Opera on Tour, Inc., v. Weber (285 N. Y. 348). We there adopted from Aikens v. Wisconsin (supra) the declaration that “ prima facie, the intentional infliction of temporal damage is a cause of action, which * * requires a justification if the defendant is to escape.” The above second cause of action alleges such a prima facie tort and, therefore, is sufficient in law on its face. (American Guild of Musical Artists v. Petrillo, 286 N. Y. 226, 231.)

Whether the present complaint states any other separate cause of action we need not decide. For the motion of the defendants demands a dismissal of the entire pleading and must be denied under the rule that a demurrer to a declaration containing several counts should be overruled if any count is good. (Hale v. Omaha National Bank, 49 N. Y. 626; Wheeler v. Connecticut Mut. Life Ins. Co., 82 N. Y. 543. See Eidlitz v. Fischbach & Moore, Inc., 239 App. Div. 483, 486.) Nor need we decide anything in respect of the nature of the judgment to which the plaintiff may be entitled. It is enough that the above second cause of action states a case for relief either at law or in equity. (Wainwright & Page v. Burr & McAuley, 272 N. Y. 130.)

The justification that is required in a case like this must, of course, be one which the law will recognize (Beardsley v. Kilmer, 236 N. Y. 80; Langan v. First Trust & Deposit Co., 293 N. Y. 604, 608. See Winfield, The Law of Tort, 2d ed., 15-21; Ames, Lectures on Legal History and Miscellaneous Legal Essays, 399 et seq., and the cases in this court there cited).

The judgment of the Appellate Division should be.reversed and the order of Special Term affirmed, with costs in this court and in the Appellate Division.

Lewis, Conway, Desmond, Thacheb and Dye, JJ., concur.

Judgment accordingly.


author: Per Curiam.

text:
    The People of the State of New York, Respondent, v. Samuel Solomon, Appellant.
    Argued November 12, 1946;
    decided November 27, 1946.

      Arnold Cohen for motion to reargue motion for enlargement of time.

      Frank S. Hogan, District Attorney (Whitman Knapp, oi counsel), for motion to dismiss appeal.
   Per Curiam.

After trial in the Court of Special Sessions of the City of New York, the appellant was convicted of a violation of Penal Law, section 1712. The Appellate Division affirmed the judgment. One of the justices dissented and by his leave the appellant brought an appeal to, this court on December 22, 1945. More than nine months later — on September 30,1946 — the appellant moved this court for an enlargement of the time for argument of his appeal. We denied that motion. The appellant now moves for reargument thereof and the District Attorney makes a cross motion for dismissal of the appeal. ,

Section 536 of the Code of Criminal Procedure says that an appeal to this court must be brought to argument “ within ninety days from the taking of such appeal, unless the court for good cause shown, shall enlarge the time for argument.” Section 536 further provides: “ * * * If the court do not enlarge the time for argument of the appeal, and the argument thereof shall not have been had within the said ninety days, or if the time be enlarged, and the argument be not had within the time granted by the court, the said appeal shall be deemed to have been abandoned and an order dismissing the same shall be forthwith entered by the court without notice. If the court be in recess during all or part of such period of ninety days, an application for an enlargement thereof may be made upon notice served within such period to be heard after the expiration thereof, if noticed for a day not later than ten days after the court shall have reconvened.”

The policy that underlies these statutory requirements is not open to doubt. Unreasonable delay in the determination of criminal actions is subversive of the public good and a disgrace to the administration of justice (People v. Nelson, 188 N. Y. 234, 237). The duty of counsel to expedite the disposition of appeals in criminal cases is primarily a duty to the public. Hence the discretion conferred upon this court by section 536 cannot validly be invoked because counsel for an accused is pressed by his professional commitments to individual clients. Nor is the consent of a district attorney any reason why the command of section 536 should be put aside. Nevertheless a contrary impression as to the significance of section 536 has established itself to a considerable degree and quite probably was the cause of the delay of counsel in the present case. For that reason, we are now persuaded not to deal peremptorily with the default of this defendant. We do so in the confidence that this reminder of the importance of section 536 will prevent such defaults in the future.

Motion to dismiss the appeal denied. Motion for reargument of motion for enlargement of time granted, and on reargument order vacated, motion for enlargement of time granted and case set down for argument during the January, 1947, session.


author: Fuld, J.

text:
    The People of the State of New York ex rel. Rochester Telephone Corporation, Respondent, against William H. Woodworth, as Assessor of the City of Rochester, Respondent, and Clarence A. Smith, as Director of Finance and County Manager of the County of Monroe, et al., Appellants.
    Argued October 14, 1946;
    decided November 27, 1946

      Joseph B. Boyle for appellants.
    I. Defendant-respondent Assessor of the City of Rochester is an officer of the City of Rochester, and not an officer of the County of Monroe. (City Charter, §§ 124, 188.) II. The acts complained of were per-' formed by defendant-respondent in his capacity as Assessor of the City of Rochester. (City Charter, §§ 188-a, 188-c.) III. The Legislature or the Board of Supervisors of the County are the only authorities which could create the office of county assessor. (Miller v. Warner, 42 App. Div. 208; Meyers v. Mayor of New York, 69 Hun 291.) IV. There can be no “ assessor de facto ” in Monroe County. (Matter of Quinn, 152 N. Y. 89; People ex rel. Snyder v. Hylan, 212 N. Y. 236; People ex rel. Baldwin v. McAdoo, 110 App. Div. 432; People ex rel. Sinkler v. Terry, 42 Hun 273; People ex rel. Gross v. Hayes, 86 Misc 88.)

      Frederick J. Wilkens and William H. Emerson for William H. Woodworth, respondent.
    „ I. This proceeding relates entirely to assessments for county tax purposes and is one in which the city has no interest. II. Respondent’s motion was made to obtain a clarification of the capacity in which respondent was named and in which relief was sought against him in this proceeding. III. The city should not be compelled to defend an assessment on the county rolls when it is without power to change it. IV. The making of the order appealed from was proper and within the court’s power. (Civ. Prac. Act, § 105; McKenzie v. Lavine, 249 App. Div. 755.)

      W. Clyde O’Brien for Rochester Telephone Corporation, respondent.
    I. The City of Rochester and the County of Monroe cannot use this proceeding for the purpose of obtaining an indication of the court as to whether respondent was an official of the City of Rochester or the County of Monroe at the time he made the assessment which is subject to review in this certiorari proceeding. II. The special appearance made by “ Woodworth as Assessor of the City of Rochester ” was converted into a general appearance when he stated as a ground of the motion to dismiss that he was not a necessary and proper party to the proceeding. (Dycker Heights Home for Blind Children v. Stolitzky, 250 App. Div. 229; Braman v. Braman, 236 App. Div. 164; Citizens Trust Co. v. Prescott and Sons, Inc., 221 App. Div. 426.) III. Special Term did not have power to make the order herein. The court was without authority to consider a motion made by respondent in a capacity other than that in which he was named in the petition, order and writ. IV. Special Term was without authority to make an order which purported to dismiss the petition and writ as to “ William H. Woodworth as Assessor of the City of Rochester,” but which by its terms did not dismiss said petition and writ as to “ William H. Woodworth as Assessor de facto of Monroe County in preparing the 1945 Monroe County Assessment Rolls of City Properties.” V. The assessor who prepared the annual county assessment roll of city properties for the year 1945 was a proper and necessary party to the certiorari proceedings brought on by the relator. (City Charter, § 188-a; Tax Law, § 291.)
   Fuld, J.

The Assessor of the City of Rochester is vested with the power and the duty of preparing the assessment rolls of city properties, on the basis of which the city levies taxes. Those rolls, copies of which are delivered to the Board of Supervisors of the County of Monroe, are also relied upon for the levy of county taxes. In this case, the relator Telephone Corporation commenced a proceeding under the Tax Law to review an assessment of its city property contained in the 1945 county assessment rolls. Joined as defendants were the city assessor — Woodworth — and two officers of the county. A motion was made on behalf of Woodworth to dismiss the petition and writ of certiorari “ as to [him] as Assessor of the City of Rochester The motion was granted, and an order — here under review — was entered which dismissed the petition against Woodworth as city assessor but purported to continue the proceeding against him “ as assessor de facto of Monroe County ”.

The only issue presented by the motion was whether the city assessor was a proper and necessary party. In determining it, the question — to which Special Term seems to have shifted its attention — as to whether the'City of Rochester or the County of Monroe was to bear the expense of defending Woodworth was completely beside the point. If he was an essential party, the motion should have been denied.

Section 5 of the Monroe County Tax Act (L. 1938, ch. 441, as amd. by L. 1944, ch. 721) and section 188-a of the Rochester City Charter (L. 1907, ch. 755, as amd. by L. 1944, ch. 720) both provide that “ the assessor of the city of Rochester ” shall prepare the. annual county assessment rolls of city properties, shall hear allegations and objections relating to the assessments therein, and shall make such corrections and amendments as the facts established may require. Thus, the very statutes themselves explicitly designate the city assessor as the officer who has the duty and responsibility of assessing, for county tax purposes, the properties located in the city. Hence, although it is unquestionably true that Woodworth acted for the benefit, and even on behalf of, the county in making the assessments here complained of, he nevertheless did so only in, .and by virtue of, his capacity as city assessor. We need not now inquire into the considerations of economy and convenience which undoubtedly impelled the Legislature thus to impose a double burden and obligation upon a city official rather than to create a new county office. Suffice it to say that they did include preparation of the county assessment rolls among the duties of the city assessor.

In establishing a procedure for obtaining relief from improper assessments, the Legislature provided, in section 5-b of the County Tax- Act and section 188-e of the City Charter, that any person interested who shall have appeared before the assessor * * * and who shall consider himself aggrieved by any decision or action of the assessor, may apply * * * to the county or supreme court for a review of the decision or action of the assessor, pursuant to the general procedure for certiorari in said court.” (Emphasis supplied.) Manifestly, the assessor referred to is the assessor of the city of Rochester ”, since he is the .only assessor mentioned in the immediately preceding section of the County Tax Act and the City Charter. Moreover, the decisions and actions to be reviewed must have been made or done by him as city assessor, for that is the only capacity in which the statutes empower him to act.

A similar conclusion is to be reached in reference to the provisions of the Tax Law (L. 1909, ch. 62, as amd.) relating to certiorari. Thus, section 291 of that Law provides in part: “ Upon the presentation of such petition, the justice or court may allow, a writ of certiorari to the officers making the assessment, to review such assessment * * *.” (Emphasis supplied.) As already pointed out, the person designated by the statutes to make the county assessments of city properties is the city assessor, and since he is referred to by his official title, it seems fairly obvious that he must make the assessments in his official capacity. Certainly, if he were to make them in his individual, personal capacity, he would scarcely be “ the officer making the assessment ”, within the intendment of section 291 of the Tax Law.

In short, since the Assessor of the City of Rochester is the officer selected by statute to make county assessments of city properties, and since it must therefore be- presumed that Woodworth, the Rochester city assessor, acted in his official capacity in making the assessments involved- here, he was, in that same capacity, a proper and necessary party to the present proceeding. Accordingly, his designation in petition and writ as William H. Woodworth * ' * * Assessor of the City of Rochester, New York in preparing the 1945 Monroe County Assessment Rolls of City properties,” was correct, and it was manifest error to dismiss the proceeding against him as city assessor.

More than that, the court at Special Term had no power to make the order appealed from. The motion to dismiss the petition required thart court to determine whether Woodworth was a necessary and proper party. Special Term, while granting the motion, in effect held that Woodworth, in one capacity or another, was an essential party, for the proceeding was continued against him as assessor de facto of Monroe County ”, What Special Term attempted to do was to decide a collateral problem — namely, whether the county rather than the city should bear the cost of-representing Woodworth. That issue, however, was neither pertinent to, nor determinable on, the motion to dismiss.

We add the further observation that there is no showing in the record of the existence of any such office as that of assessor of Monroe County ”. That being so, it clearly follows that there can be no de facto officer. (See e.g., People ex rel. Snyder v. Hylan, 212 N. Y. 236, 243; Matter of Quinn, 152 N. Y. 89, 92.)

The orders’should be reversed, with costs in all courts and the motion denied. The question certified should be answered in the negative.

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

Orders reversed, etc.


text:
    Western New York & Pennsylvania Railway Company et al., Respondents, v. City of Buffalo, Appellant.
    Argued November 20, 1946;
    decided January 9, 1947.

      Fred G. Maloney, Corporation Counsel' (Wortley B. Paul and Gerald J. Shields of counsel), for appellant.
    I. The contracts sought to be given force were not made by, or executed by, the City of Buffalo. The claim of liability against the city arises from separate clauses contained in each of these contracts, which were executed by the grade crossing commission, a body created by the Legislature, and which body purported to insert these clauses requiring, as plaintiffs claim, a perpetual obligation for repair and maintenance on the defendant’s part. II. The power and authority given by chapter 345 of the Laws of 1888 contained no authority for this commission to impose a liability for maintenance and repair of the structures when completed. Being a delegation of power from the Legislature its powers are strictly limited to thosé expressly granted and delegated. (Matter of N. Y. C. & H. R. R. R. Co., 200 N. Y. 121; Lehigh Valley Ry. Co. v. Adam, 176 N. Y. 420.) III. It must be presumed that this commission legally and actually did apportion such cost between the railroad, in each instance, and the city and that the proportion, directed to be paid by the city, was its full complete, entire and actual cost of the original structure and improvement which the city was ordered to and did pay. (Matter of Webster v. Purcell, 106 App. Div. 360, 186 N. Y. 549; Remington v. State of New York, 116 App. Div. 522; Matter of Rogers, 188 App. Div. 813.) IV. Buies of law relating to the ordinary case of impairment of contract, do not apply to a case, like thé instant one, where the action complained of is taken pursuant to a valid exercise of the reserved power in the Legislature. (Faitoute Co. v. Asbury Park, 316 U. S. 502; Chicago B. & Q. R. R. Co. v. Nebraska, 170 U. S. 57; Northern Pacific Railway v. Duluth, 208 U. S. 583; Wabash Railroad Co. v. Defiance, 167 U. S. 88; Louisville & Nashville R. R. v. Mottley, 219 U. S. 467; Atlantic Coast Line v. Goldsboro, 232 U. S. 548; Rail Coal Co. v. Ohio Industrial Comm., 236 U. S. 338; Denver & Rio Grande R. R. Co. v. Denver, 250 U. S. 241; Grand Trunk Ry. v. Indiana R. R. Comm., 221 U. S. 400; Preston Co. v. Funkhouser, 261 N. Y. 140.) V. Since the Legislature acted under its reserved power it could, and did, place the obligation on plaintiffs to maintain and repair for the period prior to the amendment of 1937. (Chicago, Milwaukee & St. Paul Ry. v. Minneapolis, 232 U. S; 430; Erie R. R. Co. v. Public Utilities Commrs., 254 U. S. 394; Atlantic Coast Line v. Goldsboro, 232 U. S. 548; Chicago & Alton R. R. v. Tranbarger, 238 U. S. 67; Cincinnati, I. & W. Ry. v. Connersville, 218 U. S. 336; Great Northern Ry. Co. v. Clara City, 246 U. S. 434; Lake Shore & Mich. So. Ry. Co. v. Clough, 242 U. S. 375; N. Y., N. E. R. R. Co. v. Bristol, 151 U. S. 556; Albany Northern R. R. Co. v. Brownell, 24 N. Y. 345; Missouri Pacific Ry. v. Omaha, 235 U. S. 121.) VI. There is no question here of any retroactive effect or operation of the amendment to the Railroad Law in 1937. (City of Yonkers v. N. Y. C. & H. R. R. R. Co., 165 N. Y. 142; Matter of Morse [Bank of America], 247 N. Y. 290; Matter of Wentworth, 230 N. Y. 176; People ex rel. Durham R. Corp. v. La Fetra, 230 N. Y. 429; Matter of Mount Sinai Hospital, 250 N. Y. 103; Matter of Village of Mamaroneck v. Public Service Comm., 208 App. Div. 330, 238 N. Y. 588.) VII. The enactment of chapter 889 of the'Laws of 1937 was an act, taken by the Legislature, pursuant to the reserved power of that body to legislate on subjects involving the welfare and safety of the citizens of the State and placed upon plaintiffs the obligation, as to the future, to maintain and repair all existing bridges and viaducts in the City of Buffalo, irrespective of the existing contracts. (Matter of International Ry. Co. v. P. S. Comm., 226 N. Y. 474; Leach v. Auwell, 154 App. Div. 170; Stack v. City of Brooklyn, 150 N. Y. 335; Gerry v. Volger, 252 App. Div. 217; Matter of City of New York v. New York Central R. R. Co., 168 App. Div. 6, 216 N. Y. 722.)

      Harold J. Adams, Louis L. Babcock and William G. Conable for respondents.
    I. The contention of the City of Buffalo, that it has been relieved of the obligations of its contracts of 1896 to repair and maintain the existing South Park Avenue structure, is based upon an erroneous conception of the effect of the amendment of 1937 to section 99 of the Railroad Law. (Matter of Ward v. Erie R. R. Co., 87 Misc. 365,167 App. Div. 950, 215 N. Y. 629; Matter of Hamlin, 226 N. Y. 407; Worthen Co. v. Kavanaugh, 295 U. S. 56; Shielcrawt v. Moffett, 294 N. Y. 180; Orinoco Realty Co. v. Bandler, 197 App. Div. 693, 233 N. Y. 24; Davidge v. Common Council, 62 App. Div. 525; City of Yonkers v. Yonkers R. R. Co., 169 Misc. 102, 257 App. Div. 964, 282 N. Y. 783; People ex rel. Simon v. Bradley, 207 N. Y. 592.) II. The City of Buffalo by its own practical construction of the contracts is precluded from now repudiating its obligations under the contracts of 1896 to maintain and repair the bridges. (City of New York v. Union Ry. Co., 206 App. Div. 472, 238 N. Y. 571; Louisville v. Cumberland Telephone Co., 224 U. S. 649; Woolsey v. Funke, 121 N. Y. 87; Nicoll v. Sands, 131 N. Y. 19; Lord v. Endicott Johnson Corp., 231 App. Div. 1.) III. A construction of the amendment of 1937 to section 99 of the Railroad Law which would ignore the -contracts of 1896 would be an impairment by the State of the obligation of the contracts of 1896. (Indiana ex rel. Anderson v. Brand, 303 U. S. 95; Dodge v. Board of Education, 302 U. S. 74; Weiler v. Dry Dock Savings

      Institution, 258 App. Div. 581, 284 N. Y. 630 ; Carder Realty Corp. v. State of New York, 260 App. Div. 459, 285 N. Y. 803; Grand Trunk Western Ry. v. South Bend, 227 U. S. 544; People ex rel. Equitable Life Assur. Society v. Pierce, 104 Misc. 343, 187 App. Div, 437, 229 N. Y. 514.) IV. An interpretation of the statute of 1937 which would ignore the contracts of 1896. would deprive the plaintiffs of their property without due process of law. (Matter of New York, O. & W. Ry. Co., 44 App. Div. 664, 271 N. Y. 567.)
   Per Curiam.

The validity of the agreements whereby appellant City of Buffalo undertook to bear the expense of repairing the structures here involved can not be questioned. (Matter of Ward v. Erie R. R. Co., 215 N. Y. 629.) In the light of the settled principle that a statute will not — in the absence of an unequivocal expression of such legislative intent — be given retrospective effect so as to interfere with antecedent rights (Hastings v. Byllesby & Co. [Granbery], 293 N. Y. 413, 419; see, also, Shielcrawt v. Moffett, 294 N. Y. 180, 189; Jacobus v. Colgate, 217 N. Y. 235, 240), the 1937 amendment .(L. 1937, ch. 889) can not be construed as affecting plaintiffs’ rights — and defendant’s correlative duty — which had accrued many years before. In short, we decide that the Legislature did not disclose an intent that the statute should apply to contracts' previously made. We consider no other question.

The judgment should be affirmed, with costs.

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

Judgment affirmed.


author:
Lewis, J.
      Thachee, J.

text:
    Anna McCrink, as Administratrix of the Estate of Francis J. McCrink, Deceased, et al., Appellants, v. City of New York, Respondent.
    Argued October 16, 1946;
    decided January 16, 1947.

      1. Maurice Wormser, Samuel L. Sargent, Isidor Blum and Herman C. Angstreich for appellants.
    I. The decision of the Appellate Division is based on erroneous premises and reasoning. (Dickson v. McCoy, 39 N. Y. 400.) II. The city is liable because the police commissioner was negligent in retaining the police officer on the police force when he knew that such officer was not fit to be on the force or to be armed with a revolver. (People ex rel. Campbell v. Partridge, 99 App. Div. 410, 180 N. Y. 542; Matter of Greenebaum v. Bingham, 201 N. Y. 343; Matter of Shea v. Valentine, 249 App. Div. 556; Thomas v. Winchester, 6 N. Y. 397; Brown v. Rosen, 256 N. Y. 576; Hall v. Smothers, 240 N. Y. .486; Cusack v. Ottinger, 245 N. Y. 595; Gilrane v. Christine, 230 App. Div. 787; Gerbino v. Greenhut-Siegel-Cooper Co., 165 App. Div. 763; Kuchlik v. Feuer, 239 App. Div. 338, 264 N. Y. 542; Golembe v. Blumberg, 262 App. Div. 759; Ford v. Grand Union Co., 268 N. Y. 243; Perrotta v. Picciano, 186 App. .Div. 781; Baird v. N. Y. C. & H. R. R. R. Co., 64 App. Div. 14, 172 N. Y. 637; Matter of Sabbatino & Co., Inc., 150 F. 2d 101.) III. If reasonable care and diligence had been exercised, the commissioner would have known the full extent of the officer’s mental derangement, (People ex rel, Morrissey v. Waldo, 212 N. Y. 174; Leming v.
      N. Y. C. R. R. Co., 49 N. Y. 521; Baulec v. New York & Harlem R. R. Co., 59 N. Y. 356; Wall v. Delaware, L. & W. R. R. Co., 54 Hun 454, 125 N. Y. 727.) IV. Even apart from the negligence of the commissioner in keeping the officer on the police force and armed with a revolver, the city is liable for his shooting of the two men. (Pollard v. Trivia Building Corp., 291 N. Y. 19; Chapman v. New York Central R. R. Co., 33 N. Y. 369; Egan v. State of New York, 255 App. Div. 825; Nephew v. State of New York, 178 Misc. 824; Higgins v. Watervliet Turnpike Co., 46 N. Y. 23.) V. The city is not immune from liability in these actions. (Augustine v. Town of Brant, 249 N. Y. 198; Jackson v. State of New York, 261 N. Y. 134; Matter of Evans v. Berry, 262 N. Y. 61; Bernardine v. City of New York, 294 N. Y. 361; Steits v. City of Beacon, 295 N. Y. 51; People ex rel. Morrissey v. Waldo, 212 N. Y. 174; Blatter of Klinkenberg v. Valentine, 256 App. Div. 638; Matter of Shea v. Valentine, 249 App. Div. 556.)

      John J. Bennett, Corporation Counsel (Fred Iscol, Seymour B. Quel and James E. O’Beilly of counsel), for respondent.
    I. There was no evidence from which a jury could properly find that the city, through its officers and employees, knew or had reasonable cause to believe that the police officer was a chronic alcoholic or a man of vicious propensities. (People ex rel. Klesitz v. Mills, 179 Misc. 58; Boschen v. Stockwell, 224 N. Y. 356; Matter of Long, 261 App. Div. 456, 287 N. Y. 449; Ford v. Grand Union Co., 268 N. Y. 243; Fletcher v. Baltimore & Potomac Railroad, 168 U. S. 135; Hogle v. Franklin Mfg. Co., 199 N. Y. 388; Swinarton v. LeBoutillier, 7 Misc. 639, 148 N. Y. 752; Hall v. Smothers, 240 N. Y. 486; Cusack v. Ottinger, 245 N. Y. 595; Rafsky v. City of New York, 257 App. Div. 855; Abbott v. New York Public Library, 263 App. Div. 314; Matter of Sabbatino & Co., 150 F. 2d 101; Osipoff v. City of New York, 286 N. Y. 422; Nephew v. State of New York, 178 Misc. 824.) II. The power to dismiss or retire a policeman is vested by statute in the police commissioner and the Board of Trustees of the Police Department. The City of New York cannot be held for their failure to act or for an alleged improvident exercise of their discretion. (Matter of Budd v. Valentine, 283 N. Y. 508; People ex rel. Kasschau v. Police Comrs., 155 N. Y. 40; People ex rel. Guiney v. Valentine, 274 N. Y. 331; People ex rel. Regan v. Enright, 240 N. Y. 194; Steitz v. City of Beacon, 295 N. Y. 51; Murrain v. Wilson Line, 270 App. Div. 372.)
   Lewis, J.

At an early morning hour of January 3, 1943, Harry Anderson, a New York City police patrolman, while off duty and concededly intoxicated, shot and killed Francis McCrink and seriously wounded the plaintiff, Sidney Murphy. The assault by Anderson, which was unprovoked, gave rise to two actions at law against the City of New York— one by the estate of Francis McCrink for damages resulting from his death, and one by Sydney Murphy for damages due to personal injuries he sustained. The two actions were consolidated at Trial Term where, based upon a jury’s award to each plaintiff, a single judgment was entered in their favor. At the Appellate Division that judgment was reversed on the law and the facts and each complaint was dismissed on the law. The case comes to us upon appeal by the plaintiffs as of right.

-The assault occurred in the following circumstances: The decedent and Murphy, who had been together during the previous evening of January 2d, were homeward bound and were standing in conversation near the intersection, of Fourth Avenue and 87th Street in Brooklyn when they saw Anderson in civilian clothes walking toward them. He was obviously intoxicated. Neither the decedent nor Murphy was acquainted with Anderson although Murphy knew him to be a patrolman who lived in their immediate neighborhood on 87th Street. As Anderson approached the two men he cursed them and asked why they were standing there. It is Murphy’s testimony that “We told him to go home, that he didn’t know us.” At that moment a friend joined the group and invited the decedent and Murphy into a restaurant. As the three men left Anderson he turned and was seen walking toward his home on 87th Street. Fifteen minutes later the decedent and Murphy came out from the restaurant and walked across 87th Street where they stood for a brief time. While they were in conversation they heard Anderson addressing them in abusive language from the point where he stood in front of his home “ six or seven houses ” away. The two men again “ told him to go home ” and started toward Fourth Avenue just to get away from Mm As they walked away Anderson fired from a revolver the two shots which brought death to the decedent and permanent injury to Murphy.

Immediately after the shooting Anderson was taken to a precinct station where a police surgeon pronounced him ‘ intoxicated ”. He was confined in jail from that date until March 13, 1943, when he was removed to the Kings County Hospital where, on May 5, 1943, upon a court order (Code Crim. Pro., § 658) Ms mental condition was diagnosed as “ Psychosis due to alcohol. Paranoid deterioration type. ’ ’ That condition, according to testimony by one of the examining physicians — introduced by the plaintiffs without objection — was caused by “ His excessive indulgence in alcohol over a number of years ”. It “ * * * resulted in development of psychosis, characterized emotional, intellectual deterioration and delusions. ’ ’ The record also shows that on May 19, 1943 — less than five months after the assault — he was Dropped from the rolls of the Police Department; he having been committed to the Matteawan State Hospital for the insane ”.

The breach of duty by the city which the plaintiffs pleaded and the theory upon which the case was tried was that the city negligently failed to discharge Anderson when it knew, or in the exercise of reasonable care should have known, that he was an incompetent, troublesome and vicious person who had become so addicted to an excessive use of alcohol that he had repeatedly been the subject of disciplinary action; and that, with knowledge of Anderson’s vicious propensities the city knew or should have known that his compliance with rule 288 of the Rules and Regulations of the Police Department — which required him as a patrolman to carry a revolver at all times ” — was a source of danger to the public.

Upon its review of the record now before us the Appellate Division has ruled as a matter of law that — “ The facts are insufficient upon which to predicate the conclusion that defendant should have anticipated the assaults perpetrated by Anderson, even though four months after the occurrence, and on May 5,1943, Anderson was diagnosed as a ‘ Paranoid deterioration type ’ with a ‘ Psychosis due to alcohol (270 App. Div. 1019.)

Our examination of the record leads us to a contrary conclusion which is confirmed by evidence of disciplinary proceedings against Anderson which were matters of formal record in the Police Department and were before the Police Commissioner who admitted they Were “ thoroughly examined ” by him on those occasions when Anderson was before him charged with misbehavior. There is evidence that in October, 1928, Anderson was found guilty of being intoxicated while off duty and was fined and placed on probation for six months. In 1936, when he Was again found guilty of being intoxicated, his record was marked “ bad ” and he was fined and placed on probation for a year under the supervision of his commanding officer and a police chaplain. When that disciplinary action was taken the commissioner warned Anderson — “ If you get in any trouble while you are on probation, you are out. # * •* If you don’t want the job, just get into any kind of trouble, and you will be dismissed.” Then came an occasion in 1937 when his intoxication again led to disciplinary proceedings and again he was brought before the commissioner. On that occasion the following colloquy between the commissioner and Anderson reveals, as we view it, not only knowledge by the official head Of the defendant’s Police Department that Anderson was irresponsible and could not be depended upon to abstain from an excessive use of alcohol but — more important to our present problem — it is proof from which a jury might find that the commissioner was fully aware that he was not to be trusted to perform the duties of a patrolman: Q. [by the commissioner] — Now, you are in again on an intox — while on duty, in uniform, drunk, and this is your third intox. You know what happens on a third intox, don’t you? A. Well, I would like you to give me another chance. Q. I know that, but I say, you know what happens on a third intox. You know what usually happens ' on the second, and always happens on the third. A. I don’t know just what to say, sir, I am just excited at present, Commissioner. I get excited on those things. * * * Won’t you give me another chance, probation, Commissioner? Q. No, you don’t get another chance. You have had all the chances you are entitled to. Step out.”

For reasons unexplained in the record the commissioner appears to have reconsidered his decision. Upon recalling Anderson to the hearing theii colloquy continued: “ Q. [by the commissioner] I have got your dismissal papers all signed. * * * You don’t merit any consideration. Three intoxes. The first one is off duty, in civilian clothes, the second, off duty, in uniform, and the third one is on duty, in uniform. You have already finished up a year on probation. * * * You are here on your own. We treat you exactly as we find you. We don’t care anything about who you know, and in addition to being here on your own, we have your record since you came in the Department, and that is what determines whether you are going to stay in the Department, or whether you are going to be dismissed, your conduct flus your record, and your record doesn’t warrant, or justify anybody flacimg any confidence in you. You were here before and I asked you what probation meant. Do you remember what you told me? A. Well, Commissioner, probation — please give me one more" chance. # * * Q. All right, you are on probation for one year from today. Do you understand? A. Yes, sir. Q. What does it mean? A. It means to keep out of trouble or I will — I am finished.”

When the italicized portions of the commissioner’s statements quoted above are considered with his admission in this case that a revolver in the hands of a drunken person is fraught with potential danger, and with his further testimony that “ * * * a patrolman, in our Department is required to carry a revolver at all times, even if he goes to church. On or off duty ”, we cannot say there is no'evidence from which a jury might find that his retention in police service as a patrolman involved potential danger to others.

True it is — as urged by the city — that the statutory authority given to the Police Commissioner, as the chief executive officer of the Police Department, to dismiss a member of the police force, calls for the exercise of his discretion. (New York City Charter, §§ 431, 434; Administrative Code, § 434a-14.0.) But the Legislature in legal effect has limited the scope of that discretion by the enactment of section 8 of the Court of Claims Act which waives the State’s sovereign immunity from suit and consents to have its liability determined “ * * * in accordance with the same rules of law as applied to actions in the supreme court against individuals or corporations

* * * ”. The immunity thus waived and the consent thus granted apply to the “* * # civil divisions of the State [which] are answerable equally with individuals and private corporations for wrongs of officers and employees,— even if no separate statute sanctions that enlarged liability in a given instance.” (Bernardine v. City of New York, 294 N. Y. 361, 365.) It follows that- where, in circumstances such as those we are now considering, the retention of an employee may involve a'known risk of bodily harm to others, the field in which that discretion may be exercised by the head of a department is limited. It is superseded by the duty to abate that risk if in related circumstances danger to others is reasonably to be' perceived. (Palsgraf v. Long Island R. R. Co., 248 N. Y. 339, 344.) Otherwise a discretion as broad as that claimed by the city in this instance for the head of a department would often serve to restore without legislative action the immunity from suit • which the Legislature has waived by the enactment of section 8' of the Court of Claims Act. That waiver having been" effective to make the defendant city liable as is an individual or corporation for wrongful acts of its officers and agents (Bernardine v. City of New York, supra, p. 365), it may not with impunity retain in service an employee from whose retention danger to others may reasonably be anticipated. (Fletcher v. Baltimore & Potomac Railroad, 168 U. S. 135, 140; Rail v. Smothers, 240 N. Y. 486,490-491; Cusach v. Ottinger, 245 N. Y. 595; Wall v. D. L. & W. R. R. Co., 54 Hun 454, 458, affd. 125 N. Y. 727; Baulec v. New York & Harlem R. R. Co., 59 N. Y. 356, 360-361; Matter of Sabbatino & Co., 150 F. 2d 101, 105; and see Restatement, Torts, §§ 317, 390.)

Where, as in the ease at hand, “ * * * mere potentiality of injury exists, only such foresight as appears to be commensurate with its reasonably probable occurrence need be employed.” (Van Leet v. Kilmer, 252 N. Y. 454, 457.) We think it was a question of fact for the jury whether, in the circumstances disclosed by this record, the retention in police service of patrolman Anderson involved danger to others reasonably to be foreseen.

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

Thachee, J.

(dissenting). Upon careful study of the record in this case I am confirmed in the view that the Appellate Division was right in concluding that the facts were insufficient to support the conclusion that the defendant should have anticipated, on December 11,1937, the assaults perpetrated by Anderson on January 2, 1943.

It is important to bear in mind the sequence of the only events disclosed by the record which show knowledge by his superiors of indulgence in alcohol by Anderson prior to the time when it is claimed that Commissioner Valentine was negligent in not dismissing him from the force in December, 1937. The first of these occurred on October 27, 1928, during prohibition days. While off duty and in civilian clothes, Anderson was intoxicated and unfit for police duty. This incident was not proof of any vicious or insane tendencies. He was placed upon probation for six months from December 1, 1928, by direction of the then Police Commissioner and restored to duty on June 4, 1929, his record having been clear while on probation. Nothing of the kind happened again until March 17, 1936, when he was intoxicated, off duty and in uniform. Again he was placed on probation for one year, with the warning that any kind of trouble while on probation would result in dismissal. The reports from his commanding officer and chaplain were that his conduct was satisfactory during the period of probation. The last incident before the final unfortunate and fatal occurrence on January 2, 1943, was on November 18, 1937. Anderson failed to report for assignment at 1 p.m. as directed, and when found at 1:20 p.m. was intoxicated and unfit for duty. He was again interviewed by the Police Commissioner, who, contrary to the usual rule, gave him another chance and again placed him upon probation for a year. There were no charges against Anderson during this period of probation nor any charges indicating indulgence in alcoholic beverages during the entire period of five years preceding the fatal shooting on January 2, 1943.

This is the record upon which the action of the Police Commissioner on December 11, 1937, in putting Anderson on probation for another year instead of dismissing him from the force, must be judged, and I can find in it no evidence upon which the jury could have predicated its finding that when this was done there was reason to anticipate the shooting which occurred over five years later. I believe the court has given undue weight to the psychiatric examination and the diagnosis of chronic alcoholism made in the hospital several.months after the shooting occurred. Certainly that is no evidence that the defendant knew, or should have known, that the man was a chronic alcoholic with paranoidal tendencies five years before the condition was discovered. The testimony of the doctor who made the diagnosis is in my judgment of importance only to show that the shooting occurred as a result of insanity which could not have been anticipated by the commissioner. Nor do I ‘think the commissioner was bound to give weight to the hearsay statement made by an unknown complainant that “ on Prospect Avenue there was a drunken officer with a gun ”. Taken at face value the statement was true, but there was no evidence that he had the gun in his hand or that he was threatening to use it; on the contrary, the testimony of the officer who went to the scene when the complaint was made was that he had no gun in his hand when he observed him. The record before the commissioner showed long periods of good behavior and. nothing in my judgment sufficient to show that he should have anticipated the acts of a madman which occurred on January 2, 1943. I cannot agree that the commissioner may not in the exercise of an honest discretion retain a man on the force who in a period of nine years had been intoxicated on two prior occasions, or that the city is liable for the con sequences of the shooting five years thereafter, when the man was not merely intoxicated but out of his mind.

I dissent and vote for affirmance.

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

Judgments reversed, etc.


author: Desmond, J.

text:
    The People of the State of New York ex rel. Julius Lobell, Appellant, against Thomas McDonnell, as Warden of City Prison of the City of New York, Borough of Brooklyn, Respondent.
    Argued January 6, 1947;
    decided January 16, 1947.

      Edward H. Levine, Arnold D. Roseman and Martin- Benjamin for appellant.
    I. The sum of $250,000 bail is excessive and violative of section 5 of article I of the State Constitution. (People ex rel. Deliz v. Warden, 260 App. Div. 155; People ex rel. Shapiro v. Keeper of City Prison, 290 N. Y. 393; People ex rel. Sammons v. Snow, 340 111. 464; People ex rel. Rothensies v. Searles, 229 App. Div. 603; United States v. Mulcahy, 155 F. 2d 1002; United States v. Lawrence, 4 Cranch C. C. 518; People ex rel. Tweed v. Liscomb, 60 N. Y. 559; People v. Faden, 271 N. Y. 435; People ex rel Lawrence v. Brady, 56 N. Y. 182; Losaw v. Smith, 109 App. Div. 754; People ex rel. Sabatino v. Jennings, 221 App. Div. 418; Matter of Quinn, 2 App. Div. 103.) II. The jurisdiction of the Court of Appeals in an appeal of this kind is well established. (People ex rel. Sabatino v. Jennings, 246 N. Y. 258; Hoff v. State, 279 N. Y. 490; Matter of Morhous v. N. Y. Supreme Court, 293 N. Y. 131; Spears v. Mayor, 72 N. Y. 442; Halfmoon Bridge Co. v. Canal Board, 213 N. Y. 160; Matter of Superintendent of Banks, 207 N. Y. 11; Forrest v. Forrest, 25 N. Y. 501; Roberts v. New York Elevated R. R. Co., 155 N. Y. 31; People v. Miles, 289 N. Y. 360; People ex rel. Battista v. Christian, 249 N. Y. 314.)

      Miles F. McDonald, District Attorney, Kings County (Solomon A. Klein of counsel), for respondent.
    The order of the Appellate Division unanimously denying a reduction of bail is not appealable as of right; nor does it present a question reviewable by this court. (Matter of Mathot, 222 N. Y. 8; Matter of Levy, 255 N. Y. 223; Dalziel v. Oregon-Washington R. R. & Nav. Co., 248 N. Y. 569; People ex rel. Moss v. Supervisors, 221 N. Y. 367; Matter of Haydorn v. Carroll, 225 N. Y. 84;
      People ex rel. Curtis v. Kidney, 225 N. Y. 299; People ex rel. Ryan v. Lynch, 262 N. Y. 1; People ex rel. Rothensies v. Searles, 229 App. Div. 603; People ex rel. Shapiro v. Keeper of City Prison, 290 N. Y. 393; Matter of Baltimore Mail S. S. Co. v. Fawcett, 269 N. Y. 379; People v. Tweed,, 63 N. Y. 202.)
   Desmond, J.

After relator had been indicted for certain forgeries and grand larcenies and had pleaded not guilty, his bail was fixed by the County Court of Kings County at $250,000. Thereupon he sued out this Writ of habeas corpus, in the Appellate Division, to get that bail reduced. The Appellate Division unanimously dismissed the writ, and relator appeals here as of right. He takes his stand upon the prohibition, in our State Constitution (art. I, § 5), of “ excessive bail ”. Finding that constitutional question to be directly involved (Civ. Prac. Act, § 588), we hold that the appeal is properly here.

Whether or not this relator was to be admitted to bail at all, was a matter of discretion for the County Court (Code Crim. Pro., § 553; People ex rel. Fraser v. Britt, 289 N. Y. 614). But that question the County Court determined in relator’s favor. Next came the question of amount. The policy of our law favors bail because of the presumption that the prisoner is innocent. The reason for taking bail is, that the guilt of the prisoner is doubtful ” (People v. Lohman, 2 Barb. 450, 454). The amount must be no more than is necessary to guarantee his presence at the trial. “ The reasonableness of the amount is to be determined by properly striking a balance between the need for a tie to the jurisdiction and the right to freedom from unnecessary restraint before conviction, under the circumstances surrounding each particular accused ” (United States v. Mulcahy, 155 F. 2d 1002, 1004). The bailing court has a large discretion, but it is a judicial, not a pure or unfettered discretion. The case calls for a fact determination, not a mere fiat. The factual matters to be taken into account include: The nature of the offense, the penalty Avhich may be imposed, the probability of the willing appearance of the defendant or his flight to avoid punishment, the pecuniary and social condition of defendant and his general reputation and character, and the apparent nature and strength of the proof as bearing on the probability of his conviction * * * ” (People ex rel. Rothensies v. Searles, 229 App. Div. 603, 604, and cases cited; see, also, People ex rel. Shapiro v. Keeper of City Prison, 290 N. Y. 393).

We must, therefore, examine the record before us to see whether it shows any justification for the very high bail here fixed. Relator, hearing that his name had been mentioned in connection with the alleged thefts and that the police were looking for him, surrendered to the District Attorney. (As Lord Mansfield observed in Rex v. Lord Baltimore, 4 Burrow’s 2179, the “ voluntary surrender was a strong indication that he had no intention of absconding from justice ”.) The prosecutor at that time requested $100,000 bail, but the County Judge decided that $25,000 was enough. A surety company bond in that amount was furnished and relator was freed. He appeared a few days later for a preliminary hearing and waived examination. About two weeks later he was named, with four others, in the indictment which is said to contain 470 counts, charging thefts and forgeries involving some $780,000. On the day the indictment was handed up relator appeared for arraignment. The prosecutor suggested $100,000 bail, being the same figure previously urged by him when relator was first arrested. The County Judge presiding (not the County Judge who had ordered the earlier $25,000 bail) fixed bail at $250,000.

Relator’s previous record, which, we will assume was before the County Judge when he arrived at the amount of $250,000, showed several previous indictments, including one for ‘ ‘ jumping bail ”, and a number of arrests. It appears that he was not convicted on the bail-jumping charge but did plead guilty to a different misdemeanor charge connected with that same general transaction. He has business interests in New York and California, has lived in New York City for many years (with occasional absences) and has relatives there. There is nothing whatever in the papers to suggest any intention to flee the jurisdiction. Nor does the record before us make any showing as to the strength or weakness of the People’s case against him.

In all this we see no support for the figure of $250,000. The most the District Attorney asked for was $100,000 and, while that suggestion did not control the Judge, there was nothing before him justifying any greater amount. Thus we have a case “ where there has been a real invasion of defendant’s constitutional rights ” not “ a mere difference of opinion ” (People ex rel. Deliz v. Warden, 260 App. Div. 155, 156).

The order should be reversed, without costs and the matter remitted to the Appellate Division for proceedings not inconsistent herewith.

Loughran, Ch. J., Lewis, Thacher, Dye and Fuld, JJ., concur; Conway, J., taking no part.

Order reversed, etc.


author:
Desmond, J.
      Thacher, J.

text:
    In the Matter of Rumsey Manufacturing Corporation, Respondent. Edward Corsi, as Industrial Commissioner of the State of New York, Appellant.
    Argued October 11, 1946;
    decided January 16, 1947.

      Nathaniel L. Goldstein, Attorney-General (Francis B. Curran, Wendell P. Brown and Otto W. G. Marquard of counsel), for appellant.
    I. It was error for the Appellate Division to reverse the appeal board’s decision on the law, since there was sufficient evidence to sustain the board’s finding of fact that respondent’s failure to file the reports on time was not attributable to circumstances beyond its control. (Labor Law, § 575; Matter of Electrolux Corporation, 288 N. Y. 440; Matter of Carroll N. Y. Military Academy], 288 N. Y. 447; Matter of Daus v. Gunderman & Sons, Inc., 283 N. Y. 459; Pioneer Automobile Service Co. v. Commissioner of Internal Revenue, 36 B. T. A. 213; Merritt v. Earle, 29 N. Y. 115; People ex rel. Hirschberg v. Seeger, 100 Misc. 51, 179 App. Div. 792; Matter of Kelleher.
      283 N. Y. 664.) II. The Court of Appeals should not consider the constitutional question sought to be reviewed by respondent. The order appealed from should be reversed, and the decision of the appeal hoard reinstated. (Matter of Helfrick v. Dahlstrom Metallic Door Co., 256 N. Y. 199, 284 U. S. 594; Nod-Away Co. v. Carroll, 240 N. Y. 252; Matter of Andersen, 178 N. Y. 416; Paul v. Delaware, Lackawanna & Western Railroad Co., 175 N. Y. 478; Dodge v. Cornelius, 168 N. Y. 242; Purdy v. Erie R. R. Co., 162 N. Y. 42.)

      Albert Auerbach for respondent.
    I. The Appellate Division found that the evidence was insufficient as a matter of law to sustain the board’s findings of fact and it was therefore not error to reverse the board’s decision, on the law. (Matter of Gnerich, 41 N. Y. S. 2d 292; Matter of Electrolux Corp., 288 N. Y. 440; Matter of Morton, 284 N. Y. 167; Matter of Sullivan Co., Inc., 289 N. Y. 110.) II. Section 575, subdivision 2, of the Labor Law is unconstitutional, as it violates article I, section 6, of the State Constitution and Amendments V and XIV of the United States Constitution, for the reason that said section is so arbitrary and unreasonable on its face as to show that it deprives an employer of his property without “ due process of law ” and denies him the equal protection of the laws. (Chamberlin, Inc., v. Andrews, 271 N. Y. 1.) III. Section 623 of the Labor Law is unconstitutional, as it violates article I, section 6, of the State Constitution and Amendments V and XIV of the United States Constitution and article I, section 1, of the Bill of Rights, for the reason that said section is so arbitrary and unreasonable on its face as to show that it deprives an employer of his property without “ due process of law ” and denies him the equal protection of the laws. IV. The decision of the board being arbitrary, the Court of Appeals is empowered to determine the questions of fact so as to prevent the violation of the “ due process clauses ” of the New York State and Federal Constitutions. (People ex rel. Consol. Water Co. v. Maltbie, 275 N. Y. 357.)
   Desmond, J.

Section 575 of the Labor Law requires every employer aa71io is within the coverage of the unemployment insurance statutes (Labor Leav, art. 18), to keep accurate payroll records. Regulations made by the State Industrial Commissioner, pursuant to statute, prescribe that quarterly statements of such payrolls be filed with the commissioner not later than the last day of the month following the close of each' quarter-year. Respondent, a covered employer, failed to file such a report for the second quarter of 1944 on or before July 31,1944, the critical date under the regulations aforesaid, and failed also to file the third quarter report on or before its due date: October 31,1944. Section'575 of the Labor Law, above mentioned, says, in its second subdivision, that any employer who, having failed to file a wage statement as required by the regulations, fails thereafter to comply with the commissioner’s demand for such filing, within twenty days after the delivery of such demand, “ shall pay ” a penalty computed according to a stated formula, but not exceeding certain maxima. After respondent had failed, in the two instances above cited, to file its statements in time,- the commissioner, in each instance, mailed respondent the statutory twenty-day notice. Respondent, however, did not file either of those past-due quarterly reports within those further twenty-day periods. The commissioner thereupon imposed on respondent, for each such default, the maximum penalty of $500. Respondent, as permitted by section 620, subdivision 2, of the Labor Law, applied to the commissioner for a hearing on the matter. The. hearing was held before a departmental referee. All the testimony of importance was given by one of respondent’s officers. He told of the extreme difficulty experienced by respondent, during the war years, in assembling a sufficient force of employees. The witness pointed out that respondent, a manufacturer, had, before the war, done a business of only about $70,000 a year and then had only twenty-five .employees, three or four of whom did all its office work. Beginning in 1942, however, war orders increased respondent’s annual volume of business to about $7,000,000 or $8,000,000, and resulted in an increase to about six hundred or seven hundred employees, of whom forty or fifty did office work. An adequate supply of trained office workers, he testified, was not available in respondent’s village, so the office work, including the preparation of these payroll records, fell behind. This testimony was not directly disputed but it was, of course, self-serving and it did not point, unerringly and of necessity, to only one possible factual conclusion. The referee regarded it as a sufficient excuse for the admittedly tardy filings and overruled the commissioner’s direction that the penalties were to be paid.

The Industrial Commissioner, dissatisfied with the referee’s decision, appealed therefrom, under subdivision 3 of section 621 of the Labor Law, to the Unemployment Insurance Appeal Board, which consists of three members appointed by the Governor (Labor Law, § 534). The Appeal Board, after a hearing, reversed the referee and sustained the commissioner, holding that respondent had failed to prove that its delays were attributable to circumstances beyond its control sufficient to entitle it to be excused as a matter of law.”

Respondent-employer then appealed to the Appellate Division, as permitted by section 624 of the Labor Law. The Appellate Division, calling the Appeal Board’s decision “ arbitrary ”, reversed that decision and annulled the penalties. We hold that the Appellate Division exceeded its power in so doing.

The pertinent statute (Labor Law, § 623) says that a decision of the appeal board shall be final on all questions of fact and, unless appealed from, shall be final on all questions of law. ’ ’ Respondent failed to file its reports on time and was fined therefor by the commissioner. Contending that it had a sufficient excuse for its delays, respondent applied for, and got, a hearing at which it presented its excuse. It showed that war-time conditions made it difficult for it to recruit an adequate force of efficient office workers. Persuasive and impressive as that testimony was, it did not show, conclusively and beyond doubt, that filing of the reports within the time allowed was actually impossible. From the end of the second quarter of 1944 to the end of the time allowed by the regulations and by the subsequent demand, was sixty-five days. As to the third quarter report, the total time available was sixty-seven days. During those periods respondent’s office staff, short-handed and inexperienced though it was, was working at something. This is not a case of an individual owner, with no helpers at all and himself incapable through sickness, of preparing the reports (see Opinions of Attorney-General for 1943, p. 313). It may have been most inconvenient or troublesome for respondent to file these papers on time. It was not shown, as matter of law, to have been impossible. Impossibility was a permissible, but surely not a necessary, inference from the testimony. “ Only where the circumstances' admit of only one inference may the court decide as a matter of law what inference shall be drawn ” (Camardo v. New York State Railways, 247 N. Y. 111, 118; see Matter of Trotcbridge, 266 N. Y. 283, 293). The Appeal Board’s refusal to accept respondent’s explanation as a sufficient excuse was a ruling on a question of fact (Matter of Albano v. Hammond, 268 N. Y. 104, 108) and, not being without support in the record, was final ” (Labor Law, § 623, supra; see Matter of Electrolux Corporation, 288 N. Y. 440; Matter of Carroll [N. Y. Military Academy], 288 N. Y. 447, 451; Matter of Morton, 284 N. Y. 167, 170).

We readily assent to the statements quoted by Judge Thachek from leading cases, of the duty of the courts to set at naught arbitrary and unfounded administrative holdings. But we see nothing. “ arbitrary ” in this Appeal Board’s refusal to accept respondent’s ipse dixit that it was “ impossible ” for it to prepare and file so simple a report in sixty-five (or sixty-seven) days. The report merely copied the same payroll data already set up by respondent for its own use in paying its employees.

It is unnecessary to enlarge upon the importance of the prompt filing of these reports. They are basic in the administration of the law. It is the commissioner’s responsibility to get the reports filed, and it is not for the courts to instruct or control his judgment in such administrative matters. Analogous hereto are the cases where we have held that, where a civil service employee is tried on a charge the truth of which is admitted, the sufficiency of an explanation or excuse is a question of fact for the removing officer (see People ex rel. Regan v. Enright, 240 N. Y. 194, 198; Matter of Albano v. Hammond, supra; Matter of Kelly v. Morgan, 245 App. Div. 59, affd. 272 N. Y. 666).

We see no substance to respondent’s contention that section 623 of the Labor Law is unconstitutional insofar as it denies to the courts any power to reverse the Appeal Board’s determinations on questions of fact (see Matter of Helfrick v. Dahlstrom M. D. Co., 256 N. Y. 199, affd. 284 U. S. 594).

The order of the Appellate Division should be reversed and the determination-of the Unemployment Insurance Appeal Board confirmed, with costs in this court and in the Appellate Division,

Thacher, J.

(dissenting). When the Department of Labor imposed a penalty upon the respondent for having failed to file its payroll reports for the third quarter of 1944, it had already received these reports, only four days after the expiration of the twenty-day period. This penalty Was imposed in the belief that impossibility of filing within the twenty-day period because of circumstances beyond the employer’s control could not excuse, the four days’ delay. This belief was expressed in a letter written to the employer in response to a request for reconsideration of the penalty assessment because the delay was not willful and was quite unavoidable because of conditions beyond the employer’s control. Although the request for such reconsideration was made on October 30, 1944, the department’s reply was not received until December 28, 1944, when, referring to the statute, the department stated: This section provides that if an employer does not comply with our demands to submit payroll information within the time specified [that is, the twenty day period], a penalty shall be imposed. The amount of this penalty, which cannot exceed $500.00, is computed at the rate of $3.00 per employee and for each quarter not reported as required. Your reports were not received until September 7, 1944, which was beyond the twenty day period [four days beyond].

‘1 Accordingly, we had no alternative but to assess this penalty which is mandatory in nature and cannot be waived. This penalty is assessed irrespective of intent and even though there may have been no delinquency in the payment of contributions.”

'That this interpretation of the statute prevailed in the mind of the department when the second penalty was assessed on December 15,1944, is obvious from the letter written on December 28, 1944.

In accordance with the statutory right the employer requested a hearing pursuant to the provisions of section 575 and subdivision 2 of section 620. The concluding paragraph of section 575 provides: “ Such penalty shall be assessed, collected, and paid in the same manner as if it were a deficiency, in accordance with the provisions of this title.” and subdivision 2 of section 620 provides that: “ Any employer who claims to be aggrieved by the industrial commissioner’s determination of the amount of his contributions or by any other rule or order of the commissioner under any provision of this article may apply to the commissioner for a hearing within twenty days after mailing or personal delivery of notice of such determination, rule, or order.”

Accordingly, upon the employer’s request, a hearing was held before a referee, who overruled the determinations made on September 8, 1944, and December 15, 1944, imposing penalties, upon the ground that it was not the intention of the Legislature to impose a penalty against an employer for failure to do the impossible. The Industrial Commissioner thereupon appealed to the Unemployment Insurance Appeal Board which made the following findings of fact:

The employer is a manufacturing corporation in Seneca Falls, New York. The corporation was delinquent in filing quarterly payroll reports for the second and third quarters of 1944. On August 14, 1944 and November 16, 1944 the Industrial Commissioner made formal demands upon the employer to file quarterly payroll' reports for the second and third quarters of 1944, respectively, within twenty days of the dates of the mailing of such demands. The quarterly payroll reports for the second and third quarters of 1944 were received by the Division on September 7, 1944 and December 14, 1944, respectively. * * *
< í prior 1942 the employer had a staff of about twenty-five employees. From 1942 to 1944 the corporation obtained large government war contracts. During the latter period its personnel increased to approximately seven hundred employees and its volume of business expanded to almost $8,000,000 a year.
Seneca Falls has a population of about seven thousand persons. The employer attributes its failure to submit timely quarterly reports to its inability to recruit sufficient trained personnel from the immediate locality to assist with the office work.”

In its opinion the Unemployment Insurance Appeal Board stated: The referee ruled that the corporation’s inability to obtain employees to prepare the required reports was a valid excuse for the employer’s failure to comply with the Commissioner’s demands. We are unable to agree with the referee’s conclusion.” After discussing the language of the statute, the board concluded: The record fails to show that the employer’s delay in complying with the demands of the Commissioner was attributable to circumstances beyond its control sufficient to entitle it to be excused as a matter of law. We are constrained to hold that the determinations imposing penalties against the employer should be sustained.”

It should be noted that neither the referee nor the board construed the statute as an absolute mandate although it will be seen that the effect of the board’s decision was to treat it as such. The Appellate Division recited the facts, established by undisputed testimony, as follows:

Appellant produced proof to show that it was impossible to comply with the provisions of the statute and the requirements of the notices within the time specified. It was then engaged in the manufacture of war supplies which had a high priority rating and its business had expanded from a volume of $70,000.00 prior to the war to $7,000,000.00 or $8,000,000.00 during the war. The number of its employees increased from 25 in 1942 to 600 or 700 in 1944. It was located at Seneca Falls, New York, a com paratively small community, and had great difficulty in procuring a skilled personnel and skilled office workers, and on account of this was compelled to use inexperienced help, in some instances high school children. At times the office work of appellant fell three or four months behind. The foregoing matters were undisputed. Moreover, it is a matter of common knowledge that industrial concerns of the character of appellant, which had large war contracts to fulfill, operated under great difficulties during the war years. And these difficulties were enhanced by the burden of reports required by various administrative agencies of both the Federal and State Governments.” (270 App. Div. 973, 974.)

Characterizing the decision of the board as arbitrary, the Appellate Division held that the Legislature did not intend to penalize employers under the extraordinary circumstances revealed by the record in this case.

The hearing before the board was predicated solely upon the evidence taken before the referee, which established without contradiction that the employer was four days late in filing its payroll reports for the second quarter, and eight days late in filing its reports for the third quarter, for the year 1944. The impossibility of filing them within the twenty-day period in either case was established without contradiction by an officer of the employer who testified as to the extraordinary conditions existing in this small plant located in Seneca Falls suddenly converted into a war plant operating upon a cost plus basis, requiring innumerable reports to the Government and many Government audits, with an entirely inadequate personnel to carry on this business. Not a word was said in contradiction of this testimony, nor was any evidence adduced to show that the necessary personnel, shown to be unavailable to the employer, could have been supplied from any source. A responsible officer of the employer testified that it was humanly impossible to file the,reports within the twenty-day periods.

Upon this state of the record it seems to be entirely clear that the determination of the board was not supported by substantial evidence and that its ruling was arbitrary and capricious. The board in terms held, contrary to the only evidence in the record, that the record failed to show that the employer’s delay was attributable to circumstances beyond its control. True it is that it added the words “ sufficient to entitle it to be excused as a matter of law.” The latter phrase suggests that the board did not intend to rule on the facts at all but only that the facts established were insufficient as matter of law. All the evidence was that the delay was attributable to circumstances beyond the employer’s control. That fact was established without contradiction and could not be rejected by the board (Hull v. Littauer, 162 N. Y. 569, 572; Chesapeake & Ohio Ry. v. Martin, 283 U. S. 209, 214, 217).

Reasoning by analogy, it is said that, where civil service employees are tried on charges established by proof, the sufficiency of an explanation or excuse presents only a question of fact. We have, however, expressly limited that rule to cases where the removing officer is not shown “ to have acted in bad faith nor frivolously and the facts are not so strong as to impose an obligation on an honest and intelligent official to be convinced of the truth of the explanation (Matter of Albano v. Hammond, 268 N. Y. 104, 107; Matter of McMenamy v. Aitken, 290 N. Y. 548.) Applying that rule to this case, the truth of the explanation was established by all of the evidence, which was undisputed, and the Appellate Division was entirely .justified in characterizing the decision of the board as not only unsupported by the evidence but, since it was in contradiction of all the evidence, as arbitrary. “ A finding without evidence is arbitrary and baseless.” (Interstate Commerce Comm. v. Louisville & Nashville R. R., 227 U. S. 88, 91.)

Rules applicable to the review of determinations by administrative tribunals in the exercise of quasi-judicial powers are established by the decisions of the Supreme Court of the United States, which have been followed'in this court. These decisions have established the duty of the courts to determine whether the judicial determinations of such tribunals are supported by substantial evidence, are predicated upon findings supported by such evidence or only by arbitrary or capricious considerations and whether the parties concerned have been afforded a fair hearing, with observance of all the pertinent demands of due process.

The progenitor from which these decisions descend is Interstate Commerce Comm. v. Illinois Central R. R. (215 U. S. 452), where there was an order of the Interstate Commerce Commission under judicial review and it was said (p. 470): “ Beyond controversy, in determining whether an order of the commission shall be suspended or set aside, we must consider, a, all relative questions of constitutional power or right; 6, all pertinent questions as to whether the administrative order is within the scope of the delegated authority under which it purports to have been made; and, c, a proposition which we state independently, although in its essence it may be contained in the previous one, viz., whether, even although the order be in form within the delegated power, nevertheless it must be treated as not embraced therein, because the exertion of authority which is questioned has been manifested in such an unreasonable manner as to cause it, in truth, to be within the elementary rule that the substance and not the shadow, determines the validity of the exercise of the power.”

Following this decision of the Supreme Court of the United States, the Supreme Court of Minnesota, in State v. Great Northern Ry. Co. (130 Minn. 57) said of a similar order (p. 61): “ The order may be vacated as unreasonable if it is contrary to some provision of the Federal or state constitution or laws, or if it is beyond the power granted to the commission, or if it is based on some mistake of law, or if there is no evidence to support it, or if, having regard to the interest of both the public and the carrier, it is so arbitrary as to be beyond the exercise of reasonable discretion.”

These two decisions were adopted as the law of this State in People ex rel. New York & Queens Gas Co. v. McCall (219 N. Y. 84) and in the opinion of the court, by Judge Cuddeback, it was held that subdivision 5 of section 2140 of the Code of Civil Procedure was not intended to extend the power of the court beyond the rules laid down in these two cases. From this ruling has developed the substantial evidence rule (Matter of Stork Restaurant, Inc., v. Boland, 282 N. Y. 256, 273; Matter of Miller v. Kling, 291 N. Y. 65, 68, 69). Our decision in the New York & Queens Gas Co. case (supra) was affirmed by the Supreme Court (245 U. S. 345). In the course of its opinion the Supreme Court stated that, while in such a case it was confined t® the Federal question and had no authority to substitute its judgment for that of the administrative commission as to the wisdom or policy of an order complained of and would not analyze or balance the evidence which was before the commission for the purpose of preponderating whether it was against or for the conclusion arrived at, yet it would “ nevertheless, enter upon such an examination of the record as may be necessary to determine whether the federal constitutional right claimed has been denied, as, in this case, whether there was such a want of hearing or such arbitrary or capricious action on the part of the Commission as to violate the due process clause of the Constitution ” (pp. 348-349.) In this connection it should be remembered that there are many authorities to the effect that the due process clause may be violated by an administrative tribunal which in a proceeding of a quasi-judicial character such as this makes a finding contrary to the “ indisputable character of the evidence ” (Interstate Commerce Comm. v. Louis. & Nash. R. R., supra, at pp. 91-92, and authorities there cited). The principle was applied in Lloyd Sabaudo Societa v. Elting (287 U. S. 329) where, in a penalty case, the hearing officer failed to consider evidence before him and relied upon the opinions of experts without putting before them the evidence which might reasonably have affected their expert judgment. It was held that his action was arbitrary and unfair. Ip that case Justice Stone, writing for a unanimous court, stated (p. 339): “ The detailed .information as to those examinations which petitioner suhmitted to the Secretary in this case might reasonably have affected the expert judgment of the physicians at Ellis Island. In relying upon their opinion alone, without putting these additional facts before them, we think the Secretary acted arbitrarily and unfairly.”

Quasi-judicial power must be fairly exercised, that is, consistently with the fundamental principles of justice embraced within the conception of due process of law (Tang Tun v. Edsell, 223 U. S. 673, 681, 682). The order in this case was not a mere administrative regulation, it was a taking of property, an imposition of a penalty by an administrative board, and the defendant was entitled to show in the court below that the order was so arbitrarily unjust and unreasonable as to amount to a deprivation of property in violation of constitutional right (Oregon R. R. & N. Co. v. Fairchild, 224 U. S. 510, 524). When fundamental rights are in question the Supreme Court of the United States has repeatedly emphasized the difference in security of judicial over administrative action ” (NG Fung Ho v. White, 259 U. S. 276, 285; Crowell v. Benson, 285 U. S. 22, 61).

It is held by the Supreme Court of the United States that where confiscation or a deprivation of property is involved the statute may not withhold from the courts power to determine the question according to their own independent judgment when the action of the administrative agency exercising such power comes to be considered on appeal (Ohio Valley Co. v. Ben Avon Borough, 253 U. S. 287, 289) and Chief Justice Hughes, writing the opinion of the court in St. Joseph Stoch Yards Co. v. U. S. (298 U. S. 38), said (at p. 52): But to say that their findings of fact [referring to agencies exercising the legislative power of rate making] may be made conclusive where constitutional rights of liberty and property are involved, although the evidence clearly establishes that the findings are wrong and constitutional rights have been invaded, is to place those rights at the mercy of administrative officials and seriously to impair the security inherent in our judicial safeguards. That prospect, with our multiplication of administrative agencies, is not one to be lightly regarded. It is said we can retain judicial authority to examine the weight of evidence when the question concerns the right of personal liberty. But if this be so, it is not because we are privileged to perform our judicial duty in that case and for reasons of convenience to disregard it in others. The principle applies when rights either of person or of property are protected by constitutional restrictions. Under our system there is no warrant for the view that the judicial power of a competent court can be circumscribed by any legislative arrangement designed to give effect to administrative action going beyond the limits of constitutional authority.”

In Radio Comm. v. Nelson Bros. Co. (289 U. S. 266, 276) Chief Justice Hughes reiterated these principles and cited many Federal decisions in support thereof, and in Matter of Motor Haulage Co. v. Maltbie (293 N. Y. 338, 356-357) we quoted his statement with approval, including the authorities cited. The same principles were also recognized by this court in People ex rel. Consolidated Water Co. v. Maltbie (275 N. Y. 357, appeal dismissed 303 U. S. 158), where Judge Lehman, writing for the court, said (at p. 370): “ * * * where the State gives t.o an administrative body power to determine questions of fact by a judicial inquiry subject to review in the courts, no Federal rights are denied by its order unless ‘ there was such a want of hearing or such arbitrary or capricious action on the part of the Commission as to violate the due process clause of the Constitution.’ ”

In this case we need not determine the right to the independent judgment and. determination of a court where the question involved is one of jurisdiction or constitutionality (see St. Joseph Stock Yards Co. v. O. S., supra, at p. 52). It is enough to conclude, as we are constrained to do, that the board’s determination was without substantial evidence to support it, was arbitrary and capricious and resulted in a deprivation of the employer’s property without due process of law, in violation of the Constitution of the State and the Constitution of the United States.

The order should be affirmed, with costs.

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

Ordered accordingly. [See 296 N. Y. 857.]