author: Desmond, J.

text:
    In the Matter of Brooklyn Hospital et al., Appellants, against Mary Donlon, as Chairman of the Workmen’s Compensation Board of the State of New York, Respondent.
    Argued January 12, 1956;
    decided February 16, 1956.

      Emanuel Hayt for appellants.
    I. The legislative background of the 1935 amendments to the Workmen’s Compensation Law irrefutably indicates that the statutory provisions were directed at the control of medical abuses and fees of physicians. (People v. Ryan, 274 N. Y. 149; Woollcott v. Shubert, 217 N. Y. 212.) II. The Legislature in the 1935 amendments specifically excluded “ hospital service ” from the provisions of section 13-a authorizing the Chairman of the Workmen’s Compensation Board to promulgate a fee schedule for ‘1 medical treatment and care ” by physicians. (Bogartz v. Astor, 182 Misc. 214, 268 App. Div. 795, 293 N. Y. 763, 293 N. Y. 563; Travelers Ins. Co. v. Padula Co., 224 N. Y. 397; Palmer v. Van Santvoord, 153 N. Y. 612; Riggs v. Palmer, 115 N. Y. 506; Matter of Thomas, 216 N. Y. 426; Lester v. Otis Elevator Co., 90 Misc. 649, 169 App. Div. 613; People ex rel. Scharff v. Frost, 198 N. Y. 110.) III. The rule of ejusdem generis excludes “ hospital service ” from the phrase “ such medical treatment and care ”. (People v. Weinstein, 202 Misc. 171; St. Luke’s Hosp. v. Godet, 171 Misc. 7; Matter of Tonis v. Board of Regents, 295 N. Y. 286; Matter

      of Watson, 144 Misc. 213; Matter of Clonan, 176 Misc. 557; Matter of Stradar v. Stern Bros., 184 App. Div. 700; O’Brien v. East Riv. Bridge Co., 161 N. Y. 539.) IV. The Attorney-G-eneral of New York State has ruled that section 13-a of the Workmen’s Compensation Law, as amended in 1935, does not authorize the Chairman to establish a schedule of charges for hospital services. V. No legislation enacted subsequent to the 1935 amendments has given authority to the Chairman to promulgate a hospital rate schedule. (Matter of Quinby v. Public Service Comm., 223 N. Y. 244; Town of Mamaroneck v. New York Interurban Water Co., 126 Misc. 382.) VI. The statute should be so construed as not to cause “ objectionable results (People v. Ryan, 274 N. Y. 149; Wilmerding v. Bonaschi, 166 Misc. 140; Szold v. Outlet Embroidery Supply Co., 274 N. Y. 271; Matter of Messenger v. Chemung Foundry Corp., 234 App. Div. 810.) VII. Appellants are aggrieved persons within the purview of article 78 of the Civil Practice Act, with concomitant right to challenge the validity of the Chairman’s order. (Bullock v. Cooley, 225 N. Y. 566; Kings Co. Lighting Co. v. City of New York, 176 App. Div. 175; City of New York v. New York City Ry. Co., 193 N. Y. 543; Federation of Labor v. McAdory, 325 U. S. 450; Perkins v. Lukens Steel Co., 310 U. S. 113; Ivory v. Edwards, 278 App. Div. 359, 304 N. Y. 949; Connelly v. Department of Agric. & Markets, 162 Misc. 73; Anti-Fascist Comm. v. McGrath, 341 U. S. 123; Columbia System v. United States, 316 U. S. 407; Matter of Kuhn v. Curran, 294 N. Y. 207; Wardrop Co. v. Fairfield Gardens, 237 App. Div. 605; Mayflower Farms v. Ten Eyck, 297 U. S. 266.)

      Jacob K. Javits, Attorney-General (Abe Wagman, James O. Moore, Jr., and William Alpert of counsel), for respondent.
    I. Respondent acted wholly within the scope of her statutory authority. (Matter of Cook v. New York Central R. R. Co., 296 N. Y. 576; Bethlehem Shipbuilding Corp. v. Monahan, 62 F. 2d 299; Matter of Rodriguez v. New York Dock Co., 288 N. Y. 710; Matter of Dorfman v. Levine, 260 N. Y. 665; Szold v. Outlet Embroidery Supply Co., 274 N. Y. 271; Meltzer v. Koenigsberg, 302 N. Y. 523; Matter of Di Brizzi [Proskauer], 303 N. Y. 206; Matter of Daniman v. Board of Educ. of City of N. Y., 306 N. Y. 532; Puerto Rico v. Shell Co., 302 U. S. 253; Barr v. United

      States, 324 U. S. 83.) II. There is no substance to appellants’ contention that the administrative order brings about “ objectionable results ”.
   Desmond, J.

In this article 78, Civil Practice Act, proceeding the petitioners are Brooklyn Hospital, a nonprofit charitable hospital in the Borough of Brooklyn, and Hospital Association of New York State, a domestic membership corporation formed by 277 member hospitals, some “ voluntary ” and some operated by governmental agencies. The proceeding was brought to prevent the enforcement of an order made by respondent Donlon, as Chairman of the New York State Workmen’s Compensation Board, which order, so far as pertinent, fixes in workmen’s compensation cases a $14 per day fee for bed, board, routine nursing, ordinary dressings and drugs in hospitals with 50 or more beds and a fee of $11.25 per day for similar services and accommodations in hospitals with 49 beds or less. The order further directs that: “ The total charge for all services rendered in any case shall not exceed the total charge for like services which would be made to a self-paying patient in a non-compensation case at the minimum established fees for the particular hospital, in the event the hospital fees in such non-compensation cases are lower than the fees provided by this schedule.” The parties agree that the effect of this order is to fix a $14 daily fee per bed in a semiprivate room in a nonpublic hospital ($11.25 per day in smaller hospitals) with the proviso that the per diem charge per bed for any workmen’s compensation case in any private hospital shall not be higher than the hospital’s regularly established minimum fees for such accommodations when furnished to a self-paying patient. Fundamentally, the complaint of the private hospital against this mandate is that it compels the hospitals to furnish hospital accommodations in workmen’s compensation cases at prices no higher than those that the hospitals themselves have established for self-paying patients. This means, according to the private hospitals, that insurance companies and self-insured employers in workmen’s compensation cases not only get the benefit of minimum fees which have been fixed below cost for needy people but, so the private hospitals say, the order means also that the deficit resulting from their charitable practices must be made up by public giving to the hospitals, all to the benefit of the insurers and self-insured employers. The legal propositions advanced by petitioners against the validity of this order are two: first, that there is no statutory authority whatever for the fixation by the Chairman of any fees for hospital services and, second, that if the court should find such authority to exist, the terms of this particular order are arbitrary. Actually, that second point can hardly be said to be argued at all in appellants’ brief. The reason for that scanty treatment is, presumably, that appellants have to admit that if power existed for the making of any such hospital fee schedule, there would be a presumption that the Chairman had not acted without any basis whatever. Appellants would thus have the burden, which they have not met, of proving affirmatively that the fees as fixed are arbitrary. This appeal, therefore, really deals with one question only, that is, as to whether any statute authorizes the making by the Chairman of a schedule of charges for private hospitals in workmen’s compensation cases. Both courts below held that the power existed, but there was one dissent at the Appellate Division, thus entitling petitioners to an appeal here as of right. Special Term had held there was statutory authority for an order like this in subdivision (a) of section 13 of the Workmen’s Compensation Law.

When petitioners appealed to the Appellate Division, First Department, the majority wrote no opinion but the brief dissenting memorandum said that subdivision (a) gave the Chairman no such rate-fixing authority and that if this statute’s language left any doubt as to the authority given, that doubt is removed by a study of the history of the law. It is undisputed, of course, that the Chairman has no such power unless it be given her by an express statute. We are reversing the orders below since we are in entire agreement with the dissenting view in the Appellate Division that not only does subdivision (a) of section 13 of the act not confer such a power in terms but there is every reason to conclude that the Legislature never intended to grant any such power.

If such a rate-scheduling power appears in any statute, it must be found in the second paragraph of subdivision (a) of section 13 which does not contain the word “ hospital ” or any language suggesting to our minds that it is intended to refer to hospital services. Except for the last sentence, which has nothing to do with our question, that second paragraph of subdivision (a) of section 13 has remained unchanged since it was first enacted by the Legislature by chapter 258 of the Laws of 1935. It directs the Chairman to prepare and establish a schedule, either for the State or for limited parts of the State, ‘ ‘ of minimum charges and fees for such medical treatment and care ”. The second sentence of that second paragraph directs the Chairman before preparing such a schedule or schedules to ask the president of the Medical Society of the State of New York for a report as to the charges deemed by that society to be fair and adequate for the types of medical care to be rendered in compensation cases, the Chairman being further directed to give consideration to the views of other interested parties. The third sentence of that second paragraph says that the amounts paid by an employer for such treatment and services in compensation cases shall not be less than the charges fixed in such a schedule. The fourth sentence permits the payment of higher fees by agreement but says that “ no physician rendering medical treatment or care may receive payment in any higher amount unless such increased amount has been authorized by the employer, or by decision as provided in section thirteen-g ” of the act. Thus, the fees which the Chairman may fix by schedule are specified as those for ‘ ‘ such medical treatment and care Hospitals and hospital services are nowhere mentioned, it is the president of the State Medical Society who is to be consulted, and the only prohibition against charging higher fees is against the “ physician ”. All of this on its face means to us that the schedule-fixing power was intended to apply to the fees of physicians only. The first paragraph of subdivision (a) of section 13, that is, the paragraph just ahead of the schedule-fixing authorization paragraph, requires the employer to provide necessary ‘ ‘ medical, surgical or other attendance or treatment, nurse and hospital service, medicine, crutches and apparatus ”. The next sentence of that first paragraph makes the employer liable for those same expenses, again listing “hospital service”. Thus, when the statute wished to make clear that a statutory mandate included hospital charges it said so. When it came to authorizing a schedule of fees, the word “ hospital ” was omitted while the word ‘‘ medical ’ ’ was left in and there were references to the president of the State Medical Society and to ‘ ‘ physicians ’ ’. Undoubtedly, this was the basis for an opinion by the Attorney-General given to the then Industrial Commissioner in December, 1936. That opinion of the Attorney-General points out that the 1935 legislation, referred to above and part of which is subdivision (a) of section 13, was passed in response to a 1934 message of the Governor, that the message referred to abuses by physicians with no mention of hospitals, and that, since the 1935 amendment itself did not mention hospitals, the statute does not authorize the establishment of fees for hospitals as distinguished from fees for physicians. From the date of that opinion, so far as appears, down to the making of the order here under review in October, 1954, a period of nearly eighteen years, none of the successive officials heading the Workmen’s Compensation Board ever attempted to establish any schedule of fees for hospitals.

Our attention is called to two reports made in 1932 (N. Y. Legis. Doc., 1932, No. 83) and 1934 (N. Y. Legis. Doc., 1934, No. 75), respectively, the first to Governor Roosevelt by the so-called Cullman Committee, and the second to Governor Lehman by the so-called Pool Committee. We find nothing in either report suggesting that there should be a grant of power to make schedules for hospital fees, although the Pool Committee did discuss at some length overcharges by physicians and the need for schedule-fixing powers to correct this. The Cullman Committee discussed various problems of hospitals but said nothing about scheduling hospital fees. The 1935 amendments were undoubtedly the direct result of suggestions made to the Legislature by Governor Lehman in 1934 and the second paragraph of subdivision (a) of section 13 is almost identical with the wording of a statute proposed by Governor Lehman, the changes being such as not to affect our question.

The Chairman argues that the phrase at the beginning of the second paragraph of subdivision (a), referring to a schedule for fees for “ such medical treatment and care ”, refers back to similar language in the first paragraph. This is not persuasive since in the first paragraph, when the Legislature intended to cover hospital matters as well as medical matters, it used both the words “medical” and “hospital”. The Chairman says, correctly, that liability (of carriers and employers) for hospital as well as medical expenses was mandated by the act long before the 1935 amendment {sufra), but that, we think, misses the point. The point is that when in 1935, pursuant to recommendation of the Governor and because of abuses reported to it, the Legislature took up the question of fee schedules, it referred to ‘ ‘ medical ’ ’ fees and, so it seems to us, made it plain that the reference was to physicians’ charges. This is confirmed by the fact that the two reports above referred to, and the later message of Governor Lehman, discussed excessive fees by physicians but said nothing at all about excessive fees by hospitals. The Chairman calls to our attention that section 13-g of the act headed ‘ ‘ Payment of bills for medical care ” deals with physicians’ bills and hospital bills and provides for arbitration procedures in case of disagreements as to any such bills. Those provisions were part of the same 1935 amendments accomplished by chapter 258 of that year but, here again, when the Legislature wished to cover both medical care charges and hospital charges, it said so in so many words.

The order appealed from should be reversed, and the prayer of the petition should be granted, vacating and setting aside the chairman’s order of October 1,1954, with costs in all courts.

Conway, Ch. J., Fuld, Fboessel, Van Voobhis and Bubke, J J., concur; Dye, J., taking no part.

Order of Appellate Division reversed, with costs in all courts, and matter remitted to Special Term for further proceedings in accordance with the opinion herein.


source: Caselaw Access Project

license: Public Domain

text:
    Milton M. Fieger et al., on Behalf of Themselves and All Other Tenants of Glen Oaks Village, Inc., Similarly Situated, Appellants, v. Glen Oaks Village, Inc., et al., Respondents.
    Argued January 10, 1956;
    decided February 16, 1956.

      Max Goldweber and Paul H. Tannenbaum for appellants.
    I. Plaintiffs have a cause of action against defendants in tort and in contract under the National Housing Act. (Benner v. Atlantic Dredging Co., 134 N. Y. 156; Case v. First Nat. Bank, 59 Misc. 269; Carlin v. New York, N. H. & H. R. R. Co., 71 Misc. 521; Brinkmann v. Urban Realty Co., 10 N. J. 113; Koenig v. Patrick Constr. Corp., 298 N. Y. 313; Chotapeg, Inc., v. Bullowa, 291 N. Y. 70; Schmidt v. Merchants Desp. Transp. Co., 270 N. Y. 287; Lawrence v. Fox, 20 N. Y. 268; Strong v. American Fence Constr. Co., 245 N. Y. 48; Seaver v. Ransom, 224 N. Y. 233; Rigney v. New York Central & H. R. R. R. Co., 217 N. Y. 31; Farnsworth v. Boro Oil & Gas Co., 216 N. Y. 40; Parkin v. Damen-Ridge Apts., 348 Ill. App. 428.) II. Plaintiffs have stated three causes of action against defendants under general principles of common law separate and apart from the National Housing Act. (Wise v. Tube Bending Mach. Co., 194 N. Y. 272; Clayton v. Farish, 191 Misc. 136; House of Westmore v. Denney, 151 F. 2d 261; Sweet v. State of New York, 195 Misc. 494; Abrams v. Allen, 297 N. Y. 52; Advance Music Corp. v. American Tobacco Co., 296 N. Y. 79; Opera on Tour v. Weber, 285 N. Y. 348; Aikens v. Wisconsin, 195 U. S. 194; Rager v. McCloskey, 305 N. Y. 75; Rochette & Parsini Corp. v. Campo, 301 N. Y. 228.) III. The Supreme Court has jurisdiction of the subject matter of all causes of action. (Condon v. Associated Hosp. Service, 287 N. Y. 411; Great Northern Ry. v. Merchants Elevator Co., 259 U. S. 285; Jones Co. v. Burke, 306 N. Y. 172; Hewitt v. New York, N. H. & H. R. R. Co., 284 N. Y. 117; Clayton v. Farish,
      191 Misc. 136; Barile v. Fisher, 197 Misc. 493; Wasservogel v. Meyerowitz, 300 N. Y. 125; Matter of Schmoll, Inc., v. Federal Reserve Bank of N. Y., 286 N. Y. 503.) IV. A cause of action is sufficient if plaintiffs are entitled to any portion of the relief sought. (Steisel v. Gratzer, 272 App. Div. 673; Bloom v. Gelb, 227 App. Div. 619; Vella v. United States Fidelity & Guar. Co., 245 App. Div. 339; 39th-40th Corp. v. Port of N. Y. Auth., 188 Misc. 657.) V. Plaintiffs should be given the opportunity to amend the complaint if insufficient facts are stated to constitute a cause of action. (Morris v. Flint & Bradley, 277 App. Div. 1025; Douchkess v. Campbell, 272 App. Div. 795; Viola v. De Stefano, 277 App. Div. 999.)

      Leonard G. Bisco, Charles Goldman, Harold P. Goldman and John E. Higgiston, Jr., for respondents.
    I. This State court may not either reduce or question the amounts of the maximum rents as fixed by the Federal Housing Commissioner or the amounts of the F. H. A.-insured mortgages as approved by the commissioner. (Wasservogel v. Meyerowitz, 300 N. Y. 125; Parkin v. Damen-Ridge Apts., 348 Ill. App. 428; Brinkmann v. Urban Realty Co., 10 N. J. 113; Montana-Dakota Co. v. Public Service Co., 341 U. S. 246; Kaskel v. Impellitteri, 306 N. Y. 73; Schieffelin v. Komfort, 212 N. Y. 520; Burbrooke Mfg. Co. v. St. George Textile Corp., 283 App. Div. 640; Rosner v. Textile Binding & Trimming Co., 300 N. Y. 319; Rosenbluth v. Sackadorf, 190 Misc. 665; Ultramares Corp. v. Touche, 255 N. Y. 170.) II. Tenants of F. H. A.-insured projects have no standing to question or attack the maximum rentals fixed by the commissioner, the amounts of insured mortgages, the ground rentals payable by their landlord, the amounts of profits earned by the owner or the distribution thereof to the owner’s stockholders. (Stark v. Wickard, 321 U. S. 288; United States v. Emory, 314 U. S. 423; Perkins v. Lukens Steel Co., 310 U. S. 113; Seiden v. Larson, 188 F. 2d 661, 341 U. S. 950; Clement Martin, Inc., v. Dick Corp., 97 F. Supp. 961.) III. The tenants can have no possible rights where the owner has not exacted rents in excess of the maximum rentals fixed by the commissioner. It is not alleged and it is not the fact that the maximum rentals so fixed have at any time been exceeded. (Rager v. McCloskey, 305 N. Y. 75; Globerman v. Grand Central Parkway Gardens, 281 App. Div. 820; Northridge Coop. Sec. No. 1 v. 32nd Ave. Constr. Corp., 286 App. Div. 422; Choy v. Farragut Gardens, 131 F. Supp. 609.) IV. Even if the tenants had the standing to maintain this action, they cannot question the amount of the mortgages because the ultimate costs proved to be less than the commissioner’s estimates; the amounts of those mortgages are not determined by any estimates submitted by the mortgagor nor by the actual results of performance but only by the amount “which the Commissioner estimates will be the necessary current cost ” of the complete project. V. There is nothing that an amendment could improve and the orders and judgment appealed from should be affirmed in all respects.
   Desmond, J.

Plaintiffs sue on their own behalf and on behalf of the other tenants in eleven apartment houses, all owned in one form or another by the defendants considered as a group. The substance of the complaint is this: that by committing various kinds of wrongs defendants were able to procure the Federal Housing Authority (F. H. A.) to insure mortgage loans on these buildings in excessive amounts, with the alleged result that the rent schedules approved by F. H. A. authorities for these tenants were greatly in excess of reasonable rentals, on account of all of which plaintiffs demand money damages. All the defendants moved at Special Term, under subdivisions 1 and 4 of rule 106 of the Buies of Civil Practice, to dismiss the complaint on the ground that the court did not have jurisdiction of the subject of the action, and on the second alleged ground that the complaint does not state facts sufficient to constitute a cause of action. This motion, which was heard on the complaint alone, was granted, with an opinion holding, in substance, this: that this complaint cannot stand in any of its parts because it is a collateral attack on a determination of the Federal Administrator, and that for reasons stated this cannot be considered a Lawrence v. Fox (20 N. Y. 268) type situation. Plaintiffs appealed to the Appellate Division, Second Department, which affirmed with a brief memorandum. There was in that court one dissent, principally on the ground that these tenants are beneficiaries of the National Housing Act “ and have a direct right of action against the owner if the latter violates the act or the resolutions adopted thereunder ”, citing a New Jersey case and an Illinois case to both of which decisions we will refer hereafter. The dissent suggests that plaintiffs might in this action obtain a determination compelling defendants to file a new rent schedule and that the fixation of plaintiffs’ damages might then await the fixation by Federal authorities of new rents based on the true facts.

This lengthy complaint sets up five causes of action. The first three are almost identical and will be called herein the ‘ ‘ fraud ’ ’ counts. The fourth count alleges, in effect, that defendants were guilty of “ gross negligence ” in overestimating the cost of construction of these buildings as a basis for obtaining $24,000,000 in mortgages. The fifth and last count says that defendants constructed the development in an inferior manner at a cost of several million dollars less than what the cost would have been if defendants had complied with the drawings and specifications. Section 608 of the National Housing Act (U. S. Code, tit. 12, § 1743, passed in 1942, but as here applicable amended in 1946) provided, at the time (1946-1949) when these loans were made, for the insuring by the Federal Housing Administration of mortgages on properties where preference would be given to tenancies by World War II veterans and their families, no mortgage to be more than $5,000,000 in principal amount and no mortgage to exceed in principal amount 90% of the Federal Housing Administrator’s estimate of the necessary current cost of the whole property or project including land, architect’s fees, taxes and interest accruing during construction, and similar incidental charges.

The first three causes of action taken together allege that defendants, during the years 1946 to 1949, submitted to F. H. A. applications for insurance of mortgages on these eleven properties, which applications estimated total cost of construction, according to the drawings and specifications accompanying them, at about $26,700,000 for all the buildings, and that defendants requested, and were granted by F. H. A., insurance for mortgages aggregating $24,000,000, as requested, on the eleven buildings. These causes of action go on to allege that, pursuant to F. H. A. regulations, defendants were required to file and did file with the administrator rental schedules approved by him and that, under the policies of procedures of F. H. A., said rents were fixed at an amount which would cover operating expenses, mortgage payments, taxes and a reasonable return to the owners with the result that the maximum rent so established for plaintiffs and similar tenants bore a direct relationship to the amounts of the mortgages. It is then alleged in these parts of the complaint that the defendants estimated the total cost of all the properties at $26,700,000 and asked for and obtained insurance of mortgages of $24,000,000; that F. H. A. approved maximum rents based on those figures just given but that the total cost of constructing all these buildings was not $26,700,000 but $20,000,000 only; that the $24,000,000 in mortgages was about $4,000,000 in excess of actual cost of the buildings and incidentals; that this $4,000,000 was distributed to the individual defendants as owners of the defendant corporations, and that by reason of all this the annual rentals paid by all the tenants in these properties were excessive to the tune of about $360,000 per year. The second cause of action charges all this as a conspiracy to defraud. The differences between the first two causes of action and the third are not sufficient to require any analysis here. As stated above, the fourth cause of action describes these same alleged wrongs in terms of negligence and the fifth cause of action takes a somewhat different slant by alleging that completion at the reduced cost of only $20,000,000 was the result of failure to comply with drawings and specifications as filed, and of the construction of the buildings in an inferior manner.

There are two different but equally conclusive reasons why this complaint cannot stand. The first of such reasons is that these allegedly excessive rentals were fixed by the Federal Housing Administrator or Commission (this, of course, has nothing to do with the emergency rent control laws but is a different statutory setup). Such a determination of the F. H. A. authorities represents Federal governmental action by authorized Federal officers. As made clear by Wasservogel v. Meyerowitz (300 N. Y. 125), Matter of Schmoll, Inc., v. Federal Reserve Bank (286 N. Y. 503) and older cases, the State courts have no power whatever to revise such official acts performed by Federal officials under authority of acts of Congress. In the Wasservogel case (supra) this court said flatly that when Federal authorities and Federal officers acting within their authority have fixed rents, the State courts may not in any manner revise or review those determinations, directly or indirectly, and that all State court action is forbidden when it would amount to “ an assertion of control of the manner in which the Federal rent office performed the function assigned to it by Congress ”. We see no escape from that here. The Federal Housing Act, as above stated, authorized the Administrator, “ in his discretion ” (see § 608, subd. [b], par. [1]), to regulate rents. So empowered, he adopted rule or regulation section 280.30 under which he established maximum rents for these and similar properties. The maximum rents so established by him are still in effect and there is no assertion that the rents charged by defendants to these tenants were in excess of those maxima. We will assume with plaintiffs that this maximum rent fixation was for the benefit of tenants. There is nothing in that concept, however, which changes the settled law that the State courts cannot revise such an act of the Federal Government but must take heed of it and abide by it until it is changed by procedures, if any, established for such change. Such is the clear import of Wasservogel and the cases it cites.

The other and separate reason why this complaint is insufficient is found in a line of cases of which Rosner v. Textile Binding & Trimming Co. (300 N. Y. 319) is typical (see, also, Rosenbluth v. Sackadorf, 298 N. Y. 761; Valcich v. Depot Warehouse Realty, 308 N. Y. 892). All those cases, and some others in our court, hold that a tenant who claims to have been deprived of rights under rent laws by fraudulent misrepresentations made either to government authorities or to the tenant has no remedy by suit unless there be a specific statute giving him such remedy. The same or a quite similar idea is expressed as to commission-fixed electric utility rates in Montana-Dakota Utilities Co. v. Northwestern Public Service Co. (341 U. S. 246) and as to minimum wages fixed by the Secretary of Labor in Perkins v. Lukens Steel Co. (310 U. S. 113). As against this line of authority, plaintiffs cite to us two cases in other States, Brinkmann v. Urban Realty Co. (10 N. J. 113) and Parkin v. Damen-Ridge Apts. (348 Ill. App. 428). Both are readily distinguishable. Although each decision involves alleged overcharges of tenants in apartment houses financed with F. H. A. mortgages, neither of these cited cases includes any attempt, by direction or indirection, to set aside the F. H. A. fixation of reasonable rents. In the Brinkmann case (supra) the landlord made what were in fact additional rental charges, clearly illegal, by setting up a rental agency actually owned by the landlord as a front for collecting additional moneys in the guise of commissions. In the Parkin case (supra) the rentals charged were held illegal because the landlord never secured F. H. A. approval of the rents at all but went ahead and made leases fixing rents which were held to be void because not approved by F. H. A.

Appellants argue that this complaint states a cause of action under the “ Third Party Beneficiary ” rule of Lawrence v. Fox (20 N. Y. 268, supra). For purposes of argument we will read the complaint here as attempting to set out such a claim. However, there are a number of reasons why the Lawrence v. Fox doctrine does not help plaintiffs. That doctrine makes actionable a promise made by a defendant upon valid consideration to a third person for the benefit of the plaintiff although the plaintiff was not privy to the consideration. Presumably, the contract that appellants rely on here is the contract between defendants and the F. H. A. Of course, that contract was in a sense made for the benefit of a large class of American citizens, including plaintiffs, who could not at the time find adequate housing. However, it is notable that even the Brinkmann case (supra), cited by appellants, says (p. 118) that the primary design of the National Housing Act as originally passed was to stimulate building and increase employment ”, citing United States v. Emory (314 U. S. 423, 430), although Brinkmann goes on to say that one of the significant purposes of the act was to benefit “ low-income tenants by affording them suitable housing accommodations at reasonable rentals ”. But, for all that, the making of this F. H. A. contract for the insurance by the United States of these mortgages was an act of government intended, as all such acts are supposed to be, to benefit some or all of the citizens. To carry out a public policy of the United States Government, the Administrator was authorized to facilitate the construction of buildings by insuring the mortgages taken by lending institutions on those buildings. The Federal Administrator was authorized by the same statute to approve a rent schedule, not only to prevent the charging of unconscionable rents but also, we take it, to see to it that the rents are adequate to cover the expenses of operation, including the mortgage payments. Even if we were to distort such an arrangement into a simple contract for the benefit of these tenants; it would still be true that the complaint itself shows that plaintiffs are not actually suing on any such contract. Rather, they are attempting to set aside or bypass that contract since the rents they are paying are the rents fixed by the Administrator pursuant to that contract. Actually, of course, the only contracts that plaintiffs are parties to are their own leases with defendants, and the rents they are paying are the rents fixed in those leases.

Appellants have still another string to their bow in that they say this complaint can be held sufficient under Advance Music Corp. v. American Tobacco Co. (296 N. Y. 79) as discussed in Rager v. McCloskey (305 N. Y. 75) and Rochette & Parsini Corp. v. Campo (301 N. Y. 228). Appellants say that the Advance Music case (supra) makes actionable any intentional infliction of temporal damage ” but, of course, if that were literally true it would abolish all other forms and theories of action. The Advance Music theory does not go far enough to give these plaintiffs a cause of action on the facts they allege. What plaintiffs are alleging is not that the defendants set out to harm or wrong plaintiffs but that defendants defrauded the United States Government into legislative action fixing rents which action would not have been taken had not defendants so defrauded the Government.

The substance of all this is, as we see it, that plaintiffs cannot have any relief in the courts unless and until they are able in some fashion to set aside the rent schedules or unless some legislative body, such as the United States Congress, provides them with a remedy by suit. In all of this we are assuming, as we must on an appeal like this, the truth of all the allegations in plaintiffs’ complaint.

In one of their points, plaintiffs say that if the dismissal of their complaint be affirmed here they should, nonetheless, be given by this court leave to plead over which was refused them by the courts below. It is clear that permission to plead over is discretionary but it is a particular form of discretion which can be exercised by the Court of Appeals (Fitzgerald v. Title Guar. & Trust Co., 290 N. Y. 376, 381; Cohen and Karger, Powers of the New York Court of Appeals, p. 646). However, as the Fitzgerald opinion itself says, it is only in “ rare cases ” that the Court of Appeals exercises such a power and I see no reason for exercising it here. In the Fitzgerald case plaintiffs, mistaking their remedy, pleaded a cause of action barred by the Statute of Limitations and our court wished to make it clear that our affirmance of the dismissal of the complaint did not prevent another suit arising out of the same facts but on a different theory. That concept has nothing to do with the present case.

The judgment should be affirmed, with costs.

Conway, Ch. J., Fuld, Van Voorhis and Burke, JJ., concur; Dye and Froessel, JJ., taking no part.

Judgment affirmed.


author: Desmond, J. Conway, Ch. J.

text:
    Defiance Milk Products Company, Respondent, v. C. Chester Du Mond, as Commissioner of Agriculture and Markets of the State of New York, Appellant.
    Argued October 18, 1955;
    decided February 16, 1956.

      Robert G. Blabey for appellant.
    I. The statute attacked does not apply to plaintiff’s product. Under such circumstances plaintiff may not maintain the action. (Carolene Products Co. v. United States, 323 U. S. 18; Schieffelin v. Komfort, 212 N. Y. 520; Central Westchester Humane Soc. v. Hilleboe, 202 Misc. 881.) II. The statute is saved by a presumption of constitutionality which plaintiff did not overcome. (Johnson v. City of New York, 274 N. Y. 411; Commonwealth v. Crowl, 245 Pa. 554, 242 U. S. 153; Williamson v. Lee Opt. Co., 348 U. S. 483; Security Administrator v. Quaker Oats Co., 318 U. S. 218; Hebe Co. v. Shaw, 248 U. S. 297; Sage Stores Co. v. Kansas, 323 U. S. 32.) III. On the whole record, the weight of the proof favors the validity of the statute.

      Jacob K. Javits, Attorney-General (James 0. Moore, Jr., and Ruth Kessler Toch of counsel), in his statutory capacity under section 71 of the Executive Law.
    I. It was not so irrational or unreasonable for the Legislature to decide that there was clanger to the public of confusion and deception in the sale of evaporated skimmed milk in cans smaller than bulk size, that the courts should break from the restraint they exercise in overturning the legislative judgment. (Matter of Ahern v. South Buffalo Ry. Co., 303 N. Y. 545, 344 U. S. 367; Thompson v. Wallin, 301 N. Y. 476, 342 U. S. 485; Matter of Fay, 291 N. Y. 198; United States v. Carolene Products Co., 304 U. S. 144; Olsen v. Nebraska, 313 U. S. 236; Day-Brite Lighting v. Missouri, 342 U. S. 421; Daniel v. Family Ins. Co., 336 U. S. 220; Williamson v. Lee Opt. Co., 348 U. S. 483; Carolene Products Co. v. United States, 323 U. S. 18; Hebe Co. v. Shaw, 248 U. S. 297; Security Administrator v. Quaker Oats Co., 318 U. S. 218.) II. Skimmed milk and whole milk are not the same and are not to be sold interchangeably. (Carolene Products Co. v. United States, 323 U. S. 18; Hebe Co. v. Shaw, 248 U. S. 297; Sage Stores Co. v. Kansas, 323 U. S. 32.) III. That the Legislature has not prohibited the sale of fluid skimmed milk or of evaporated skimmed milk in 10-pound cans does not make the prohibition of the sale of retail size cans of evaporated skimmed milk automatically unreasonable. (United States v. Carolene Products Co., 304 U. S. 144; West Coast Hotel Co. v. Parrish, 300 U. S. 379; Szold v. Outlet Embroidery Supply Co., 274 N. Y. 271; Railway Express v. New York, 336 U. S. 106; Daniel v. Family Ins. Co., 336 U. S. 220.)

      David S. Williams for respondent.
    I. A constitutional question can be determined by means of an action for declaratory judgment. (Wingate v. Flynn, 139 Misc. 779, 233 App. Div. 785, 256 N. Y. 690; Denkman v. Denkman, 255 App. Div. 496.) II. The statute, insofar as it prohibits the sale of evaporated skimmed milk in less than 10-pound containers, is unconstitutional. (Central Sav. Bank v. City of New York, 280 N. Y. 9; New York Central & H. R. R. R. Co. v. Williams, 199 N. Y. 108; Grosjean v. American Press Co., 297 U. S. 233; Liggett Co. v. Baldridge, 278 U. S. 105; People ex rel. Pinello v. Leadbitter, 194 Misc. 481, 275 App. Div. 864, 301 N. Y. 695; Borden’s Co. v. Baldwin, 293 U. S. 194; Aerated Products Co. v. Godfrey, 290 N. Y. 92; Matter of Jacobs, 98 N. Y. 98; Mugler v. Kansas, 123 U. S. 623; Burns Baking Co. v. Bryan, 264 U. S. 504.) III. Defendant failed to prove any defense to the action. (Flagg v. Nichols, 307 N. Y. 96; Borden’s Co. v. Baldwin, 293 U. S. 194; McCoy Service v. New York Tel. Co., 163 Misc. 206; Painton v. Northern Central

      Ry. Co., 83 N. Y. 7.) IV. The restriction is arbitrary and unreasonable. (Carolene Products Co. v. United States, 323 U. S. 18; United States v. Carolene Products Co., 304 U. S. 144; Fisher Co. v. Woods, 187 N. Y. 90.)
   Desmond, J.

Plaintiff manufactures and sells, in 14%-ounce sealed and sterilized containers, evaporated skimmed milk, that is, cow’s milk from which there has been removed all the butterfat and so much of the other fluid content as to reduce the final volume to about 45% of original volume. Not only is it stipulated that this is a wholesome product with extensive public acceptance (plaintiff alone sells 7,000,000 or more cans a year), but we all know that it is recommended by physicians and dietitians and chosen by many consumers, because of its low calorie content. It is “ inferior ’ ’ to whole milk or evaporated whole milk, only in the same sense that milk is inferior to cream, or bread to cake, or hamburger to sirloin, in that it has different properties, and in that it carries a lower price tag because it can be more cheaply produced.

Nonetheless, plaintiff’s product cannot be sold to housewives in New York State. That result is accomplished by subdivision 2 of section 64 of the Agriculture and Markets Law, reading thus: “ No person shall sell or exchange, or offer or expose for sale, or exchange, any condensed or evaporated skimmed milk, except it be in containers or packages containing ten pounds avoirdupois net weight or more, which containers or packages shall be distinctly labeled, branded or marked in block letters not less than one-half inch in height, with the words ‘ Condensed Skimmed Milk ’ or ‘ Evaporated Skimmed Milk ’ ’ ’. The statute takes the form of mandating containers of minimum capacity, but the minimum quantity so specified is many times larger than could or would be sold and purchased in a retail food shop. Thus, the statute has the effect of prohibiting all sales at retail for household use. Plaintiff sues for an adjudication that this statute is unconstitutional. Both courts below have agreed with plaintiff and so do we. We see no rational ground for so arbitrary and unnecessary a prevention of the sale of a wholesome food product.

The applicable rules of law are well known. Every legislative enactment carries a strong presumption of constitutionality including a rebuttable presumption of the existence of necessary factual support for its provisions (Borden’s Co. v. Baldwin, 293 U. S. 194, 209, 210). If any state of facts, known or to be assumed, justify the law, the court’s power of inquiry end? (United States v. Carolene Products Co., 304 U. S. 144, 154). Questions as to wisdom, need or appropriateness are for the Legislature (Olsen v. Nebraska, 313 U. S. 236, 246). Courts strike down statutes only as a last resort (Matter of Ahern v. South Buffalo Ry. Co., 303 N. Y. 545, 555, affd. 344 U. S. 367) and only when unconstitutionality is shown beyond a reasonable doubt (Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61, 79; Matter of Fay, 291 N. Y. 198, 206, 207). But, for all that, due process demands that a law be not unreasonable or arbitrary and that it be reasonably related and applied to some actual and manifest evil (Matter of Jacobs, 98 N. Y. 98, 110; Fisher Co. v. Woods, 187 N. Y. 90; Nebbia v. New York, 291 U. S. 502). And even though a police power enactment may have been or may have seemed to be valid when made, later events or later-discovered facts may show it to be arbitrary and confiscatory (Abie State Bank v. Bryan, 282 U. S. 765, 772).

All those rules, read together, mean that the property of a citizen including his right to sell nondeleterious substances may not be taken from him without rhyme or reason. This record shows beyond dispute that a wholesome and useful food product has by statute been excluded from sale in this State. The ostensible legislative purpose was to see to it that customers did not get evaporated skimmed milk when they were trying to buy evaporated whole milk. But plaintiff’s labels plainly said: ‘ ‘ Evaporated Skimmed Milk ’ ’. If more distinctive marking was thought necessary, the Legislature could have demanded other kinds of labels or special sizes, shapes or colors of containers. Instead, it issued its fiat that these household-size quantities could not be sold at all. Such a prohibition was, as matter of law, not a reasonable way of dealing with such confusion or possibility of confusion as the legislators might have found to exist.

Appellant argues that plaintiff failed to carry the burden of proof. We do not agree. All plaintiff had to show was that no reasonable basis existed for an absolute ban against evaporated skimmed milk. Since no one has been able to discover any such basis, requisite proof of unconstitutionality was present. Appellant makes much of the testimony he produced showing that some New York State inspectors, shopping at various places in several States including New York, were sold evaporated skimmed milk instead of ‘ ‘ evaporated milk ’ ’ for which each had asked. That showed that individual shopkeepers were defrauding their own customers, but it had no tendency to prove that plaintiff’s plainly labeled product was so essentially confusing as to be punished by absolute exile. Both courts below properly found as fact that there was no fraud or deception by plaintiff.

Much of the argument on both sides here is based on conflicting interpretations of the United States Supreme Court’s opinions in the two Carolene Products cases (304 U. S. 144, supra, and 323 U. S. 18). Superficially, the Carolene situation is much like the present case, since in Carolene a statute was upheld which barred Carolene’s ‘ ‘ filled milk ’ ’ from interstate commerce. But the statute there involved was quite different from subdivision 2 of section 64 of our State Agriculture and Markets Law (supra). The Federal law (42 U. S. Stat. 1486, 1487; U. S. Code, tit. 21, ch. 3) forbade the shipment of “ filled milk ’ ’ but the latter term was defined to mean any milk ‘ ‘ whether or not condensed, evaporated, concentrated, powdered, dried or desiccated, to which has been added, or which has been blended or compounded with, any fat or oil other than milk fat, so that the resulting product is in imitation or resemblance of milk ”. (Italics supplied.) Congress, when passing that Federal Filled Milk Act in 1923, had before it testimony that “ filled milk” (that is, milk with artificially added fats) was frequently or usually confused by customers with ordinary condensed milk, that shopkeepers increased this confusion by representing the product to be condensed or evaporated milk, and charged the same price for it as for condensed milk. Therefore, the Federal statute was upheld by the courts on the ground of widespread confusion and deception, lack of understanding by the public of the difference between the products, and active, systematic deception by vendors. No such proof is in this record. On the contrary, it. is incredible that as of this date shoppers do not know what is meant by condensed skimmed milk We must keep in mind that the Carolene statute was passed in 1923 and that the two Carolene cases were decided in 1938 and 1944, respectively. Congress had characterized “ filled milk ” as being “ injurious to health ” and “ a fraud upon the public ” (first Carolene opinion, 304 U. S. 152). Time has certainly disproved completely the first of those indictments. Ultimately, the court’s basis for the ban was “ deception ”, and fraudulent substitution ” in that the Carolene product was, in spite of proper labeling, regularly “ passed off as the whole milk product ” (second Carolene case, 323 U. S. 23, 31). There is nothing like that in this case.

Appellant suggests that respondent’s sales may have been in violation of a different statutory prohibition (Agriculture and Markets Law, § 64, subd. 3) which, in language quite like that of the statute passed on in the Carolene cases, forbids the sale of skimmed milk to which fats have been added “ so that the finished product shall be in imitation or semblance of condensed # * * mjQ]j ’ The testimony here shows that vegetable fats are added to plaintiff’s product to replace the vitamins drawn off in the removal of butterfat from the whole milk. But no issue as to subdivision 3 (as distinguished from subd. 2) was tendered to the court or tried. Plaintiff alleged (and no one disputed it) that the prohibition against its sales was based on subdivision 2, and the 10-pound container requirement of that subdivision.

The judgment should be affirmed, with costs.

Conway, Ch. J.

(dissenting). The problem presented to us here has to do with milk, which is ever a concern of the Legislature in its consideration of public policy and the exercise of the police power of the State for the protection and preservation of the health and welfare of our people. Further, the problem has to do not with whole milk but with skimmed milk — that is milk from which the butterfat content has been skimmed. Finally, the problem has to do with evaporated skimmed milk — sold in small 14%-ounce cans.

The Defiance Milk Products Company of Ohio (hereinafter called Defiance) commenced this action to obtain a judicial declaration that subdivision 2 of section 64 of the Agriculture and Markets Law of the State of New York is unconstitutional. That statute reads as follows: “2. No person shall sell or exchange * * * any condensed or evaporated skimmed milk, except it be in containers or packages containing ten pounds avoirdupois net weight or more, which containers or packages shall be distinctly labeled, branded or marked in block letters not less than one-half inch in height, with the words 1 Condensed Skimmed Milk ’ or ‘ Evaporated Skimmed Milk ’ * * *

That statute was enacted pursuant to the police power- — the power inherent in a government to enact laws, within constitutional limits, to promote the order, safety, health, morals, and general welfare of society. The police power “ corresponds to the right of self-preservation in the individual, and is an essential element in all orderly governments, because necessary to the proper maintenance of the government and the general welfare of the community. * * * On it depends the security of social order, the life and health of the citizen, the comfort of an existence in a thickly populated community, the enjoyment of private and social life, and the beneficial use of property, and it has been said to be the very foundation on which our social system rests. * * * It has been said that the scope of the police power is as broad as the public welfare or necessity, and must be exercised in the interest thereof, that it is the least limitable of the powers of government, and that the police power is the broadest in scope of any field of governmental activity ’ ’ (16 G. J. S., Constitutional Law, § 175). Thus, we have said in People v. Nebbia (262 N. Y. 259, 270-271):

‘ ‘ But we must not fail to consider that the police power is the least limitable of the powers of government and that it extends to all the great public needs; that constitutional law is a progressive science; that statutes aiming to establish a standard of social justice, to conform the law to the accepted standards of the community, to stimulate the production of a vital food product by fixing living standards of prices for the producer, are to be interpreted with that degree of liberality which is essential to the attainment of the end in view (Austin v. City of New York, supra [258 N. Y. 113], p. 117); and that mere novelty is no objection to legislation (People ex rel. Durham Realty Corp. v. La Fetra, 230 N. Y. 429).
“ The State courts should uphold State regulation whenever possible. They should be clearly convinced that a statute is unconstitutional before they declare it invalid. (Cf. Ives v. South Buffalo Ry. Co., 201 N. Y. 271, with Arizona Employers’ Liability Cases, supra [250 U. S. 400]; also cf. People ex rel. Rodgers v. Coler, 166 N. Y. 1, with Atkin v. Kansas, supra [191 U. S. 207].) ”

Public health and the prevention of fraud and deceit are proper subjects for the exercise of the police power (see 16 C. J. S., Constitutional Law, §§ 181-194). All matters relating to the policy, wisdom or expediency of legislation affecting a subject which lies within the police power of the State are exclusively for legislative, rather than judicial, determination. Thus, it was said in a case involving the exercise of police power, although not with respect to its exercise to protect the public health, that courts “ do not sit as a super-legislature to weigh the wisdom of legislation nor to decide whether the policy which it expresses offends the public welfare. * * * the state legislatures have constitutional authority to experiment with new techniques; they are entitled to their own standard of the public welfare * * *.” (Day-Brite Lighting v. Missouri, 342 U. S. 421, 423 [1952].) And, as was said in Daniel v. Family Ins. Co. (336 U. S. 220, 224):

“ Despite evidence to the contrary, respondents see no evil to be corrected by this legislation. We are asked to agree with respondents and call the statute arbitrary and unreasonable.
“ Looking through the form of this plea to its essential basis, we cannot fail to recognize it as an argument for invalidity because this Court disagrees with the desirability of the legislation. We rehearse the obvious when we say that our function is thus misconceived. We are not equipped to decide desirability; and a court cannot eliminate measures which do not happen to suit its tastes if it seeks to maintain a democratic system. The forum for the correction of ill-considered legislation is a responsive legislature.” (To the same effect, see Williamson v. Lee Opt. Co., 348 U. S. 483, 486-488 [1955].) Moreover, ‘ ‘ the methods which it [the legislative body] employs to carry out its purposes are beyond attack without a clear and convincing showing that there is no rational basis for the legislation; that it is an arbitrary fiat ” (Carolene Products Co. v. United States, 323 U. S. 18, 31-32).

The plaintiff here specifically attacked the 10-pound limitation imposed by the previously quoted portion of subdivision 2 of section 64 of the New York statute. That statute enjoys a presumption of constitutionality, including a rebuttable presumption of the existence of necessary factual support for its provisions (Borden’s Co. v. Baldwin, 293 U. S. 194, 209, 210). The burden was upon Defiance, as the assailing party, to overcome that presumption and to establish by a clear and convincing showing that the legislative restriction did not rest upon any reasonable basis, but is essentially an arbitrary one (Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61, 79; Harman v. Board of Educ. of City of N. Y., 300 N. Y. 21, 31).

What Defiance established at the trial may be summed up as follows: It proved that it made a product called evaporated skimmed milk, which it sold in 14%-ounce retail containers. One such container was put in evidence, together with a label such as is used on these containers showing the size and type of lettering (it should be noted that the statute specifies no labeling requirement for 14%-ounce containers). There was evidence that plaintiff was prohibited from selling this product in less than 10-pound containers or packages in New York State by reason of subdivision 2 of section 64 of the Agriculture and Markets Law, and there was evidence that this resulted in a loss to Defiance. It was stipulated by the parties that the healthfulness of the plaintiff’s product was not in issue. Plaintiff then rested.

The commissioner, contending that this subdivision of the Agriculture and Markets Law was enacted to prevent deception of and the perpetration of frauds upon the consuming public, produced evidence that storekeepers and sales personnel both in New York State and elsewhere had sold evaporated shimmed milk to customers who requested evaporated milk, i.e., evaporated whole milk. Similar evidence had been produced before the legislative committee prior to the enactment of the statute in question.

Since the protection of health and the prevention of fraud are proper subjects for the exercise of the police power, the question to be decided is whether plaintiff has demonstrated by a clear and convincing showing that there is no rational basis for the 10-pound limitation.

In Carolene Products Co. v. United States (323 U. S. 18, supra), the United States Supreme Court said in the course of discussing the Filled Milk Act, which completely excludes from interstate commerce the sale of filled milk compounds having the semblance of milk (p. 24): “ Congress evidently determined that exclusion from commerce of filled milk compounds in the semblance of milk was an appropriate method to strike at evils which it desired to suppress. Although it now is made to appear that one evil, the nutritional deficiencies, has been overcome, the evil of confusion remains and Congress has left the statute in effect. It seems to us clear, therefore, that there is no justification for judicial interference to withdraw these assumedly non-deleteripus compounds from the prohibitions of the act.” (Emphasis supplied.)

In the present case, as indicated (supra), evidence was introduced to the effect that storekeepers and sales personnel both in New York State and elsewhere had sold evaporated skimmed milk to customers who requested evaporated milk, i.e., evaporated whole milk. Similar evidence had been produced before the legislative committee prior to the enactment of the statute in question. This clearly showed that there was a real danger of confusion and fraud, at least with respect to the ordinary retail customer. That would be sufficient reason for the Legislature to take some action since it was dealing with a ‘ ‘ paramount industry ” (People v. Nebbia, 262 N. Y. 259, supra). The Legislature of our State has not gone as far with respect to controlling the sale of evaporated skimmed milk as Congress has with respect to preventing the sale of filled milk. It has not completely forbidden the sale of evaporated skimmed milk as Congress has done with filled milk compounds in the semblance of milk. Bather, it has merely prohibited the sale in retail size containers allowing sales to be made in containers of 10 pounds or more, presumably for the use of restaurants, bakeries and other commercial purchasers, who, the Legislature has apparently concluded, are familiar with the differences in the nature of the products so that the danger of deception or confusion is slight. As we have said it is conceded that the healthfulness of Defiance’s product is not in issue, and while that may he so in that it contains no affirmatively harmful ingredients (see 285 App. Div. 354), nevertheless, skimmed milk has not the butterfat content present and required in whole milk. Skimmed milk and skimmed milk products are in demand today, not as a general foodstuff, but rather for a restricted group of persons whose fat intake requires limitation. To give skimmed milk and skimmed milk products to persons not in this limited category will deprive them of nutrients vitally necessary to health. ‘ ‘ Evaporated milk ’ ’ in ordinary parlance is not synonymous with “ evaporated shimmed milk”, and yet there is evidence herein that purchasers requesting the former product were given instead the skimmed milk product. In the Carolene case (supra) at pages 27-28, the United States Supreme Court said the following, which is appropriate here:

“ If the Filled Milk Act is applicable to the compounds whose shipment was the basis of the indictment in this case, as we have just concluded, petitioners assert that the act, as thus applied, violates the due process clause of the Fifth Amendment. Their argument runs in this manner. Since these enriched compounds are admittedly wholesome and sold under trade names with proper labels without the commission of any fraud by petitioners on the public, Congress cannot prohibit their interstate shipment without denying to petitioners a right protected by the due process clause, the right to trade in innocent articles. They rely upon Weaver v. Palmer Bros. Co., 270 U. S. 402, and continue their protest against the refusal of the trial court to receive the evidence as to the wholesomeness of their product.
“ We do not need to consider the refusal of the trial court to receive evidence of the purity and wholesomeness of petitioner’s products. Such evidence could be material only if the sole basis for Congressional action was impurity and unwholesomeness. Under the first point of this opinion, we have determined that the avoidance of confusion furnished a reason for the enactment of the Filled Milk Act. The trial court took judicial notice, as did the District Court of the District of Columbia, United States v. Carolene Products Co., 51 F. Supp. 675, 678-79, and as we do, of the reports of the committees of the House of Representatives and the Senate which show that other considerations than nutritional deficiencies influenced the prohibition of the shipment of filled milk in interstate commerce. These unchallenged reports, as we indicated in part ‘ First ’ above, furnish an adequate basis, other than unwholesomeness, for the action of Congress. The reports show that it was disputable as to whether wholesome filled milk should be excluded from commerce because of the danger of its confusion with the condensed or evaporated natural product or whether regulation would be sufficient. The power was in Congress to decide its own course. We need look no further.”

Likewise, in Hebe Co. v. Shaw (248 U. S. 297), the United States Supreme Court upheld the validity of an Ohio statute which prohibited the sale of condensed milk made otherwise than from whole milk against an attack under the Fourteenth Amendment. It was assumed that the compound was wholesome and it was properly labeled. The act was sustained, however, as a proper exercise of legislative power to protect the public against fraudulent substitution.

So, here, the Legislature, recognizing the existence of a danger of confusion to the ordinary purchaser, has acted, in the exercise of its police power, to protect such purchasers in this State against that danger. As we have already pointed out the Supreme Court has declared in the Carolene case (supra) at pages 31-32: “ * * * the methods which it [the legislative body] employs to carry out its purposes are beyond attack without a clear and convincing showing that there is no rational basis for the legislation; that it is an arbitrary fiat.” It was there reiterated that legislation by Congress completely preventing the sale of a product which might be confused with another was not an arbitrary fiat. If the danger of confusion authorizes Congress to completely exclude the sale of a product from interstate commerce, how then can it be successfully urged that a partial restriction upon the sale of a product imposed by a State Legislature to eliminate the danger of confusion, known and demonstrated to exist, is an arbitrary fiat, without rational basis í The question posed answers itself — the plaintiff has failed to carry the heavy burden of proving that there was no rational basis for the legislation.

At the time this restriction was enacted in 1922 there was proof before the Legislature of deception or confusion. During the 1952 session of the Mew York Legislature an amendment was considered which would have eliminated the 10-pound limitation from subdivision 2 of section 64. That amendment, however, failed of passage, and the restriction was continued. The reason for continuing it seems obvious — the Legislature has found that the danger still exists. The Legislature with its committees and its means for conducting hearings ,is equipped to ascertain the existence of such a danger. We are not.

We think that what the Official Referee and the majority-writers in the Appellate Division did was to properly state the rule that the burden of proof is on the plaintiff milk company, but after conceding that the public had been deceived they then, in applying the rule as to the burden of proof, reached the conclusion that the deception was caused by someone other than the milk company, and that the State had not carried the burden of showing that its determination as to the manner and method by which to protect the public was the right way to do it. That was a shifting of the burden of proof. Once the Legislature determined that the public was being “ defrauded” however, it was for the Legislature to decide how to prevent the defrauding. It does not lie with the courts to say whether it was the dealers who sold the evaporated skimmed milk who were to blame rather than the milk company. That was clearly for. the Legislature. As it appears from the quotation (supra) from Day-Brite Lighting v. Missouri (342 U. S. 421, 423), the Supreme Court has said that when it comes to protecting the public the Legislature may even experiment as to the best manner in which to do it, and no court may act as a super-legislature. It is within the competency of the Legislature to declare public policy in order to protect the public and the courts may not intrude in order to disregard the legislative determination and substitute one of their own.

It should be noted, also, that one of the plaintiff’s products is more than simply evaporated skimmed milk. The record discloses that this product consists of evaporated skimmed milk to which has been added a concentrated oil containing vitamin A. Doubtless, this adds to the nutritive value of the milk product, but it also would appear to remove that product from the category encompassed by the second subdivision of section 64 of the Agriculture and Markets Law. By motion at the trial the commissioner raised this point, and it appears to have considerable merit. We do not, however, deem it necessary to pass upon this phase of the case in view of our decision regarding the validity of the 10-pound restriction upon the size of retail containers of evaporated skimmed milk.

The judgments should be reversed, and the complaint dismissed, with costs in all courts.

Fuld, Van Voorhis and Burke, JJ., concur with Desmond, J.; Conway, Ch. J., dissents in an opinion in which Froessel, J., concurs; Dye, J., taking no part.

Judgment affirmed.


author: Burke, J.

text:
    In the Matter of the Arbitration between Ervay J. Baker, Appellant, and Board of Education of Central School District No. 2 of the Towns of Bath, Cameron, Wheeler, Urbana, Thurston, Avoca and Howard, Steuben County, et al., Respondents. In the Matter of the Arbitration between Ervay J. Baker et al., Appellants, and Board of Education of Central School District No. 2 of the Towns of Bath, Cameron, Wheeler, Urbana, Thurston, Avoca and Howard, Steuben County, et al., Respondents.
    Argued January 4, 1956;
    decided February 16, 1956.

      Nicholas E. Brown and Elliott Horton, HI, for Ervay J. Baker, appellant.
    I. A bona fide dispute exists between the associated architects and the board of education. II. Baker is entitled to arbitrate the disputes with the board of education under the contract between the board and the associated architects. (Matter of Damsker [Carey], 283 App. Div. 719.)

      George J. Skivington for Board of Education of Central School District No. 2 and another, respondents.
    I. In neither proceeding has arbitration been “ the choice of either party (Matter of Damsker [Carey], 283 App. Div. 719.) II. In the first arbitration proceeding there was no compliance with section 3813 of the Education Law. III. In the first arbitration proceeding there was no showing of a “ dispute ” between “ the architect ” and the board of education within the meaning of paragraph “ 12 ” of the contract. (Matter of Webster v. Van Allen, 217 App. Div. 219; Matter of Eagar Constr. Corp. v. Ward Foundation Corp., 255 App. Div. 291; Matter of Lipman [Haeuser Shellac Co.], 289 N. Y. 76; Dwyer v. Biddle, 274 App. Div. 903; Matter of Tanenbaum Textile Co. v. Schlanger, 287 N. Y. 400.) IV. At the time when the motions in the second arbitration proceeding by the board and by White and Helm to permanently stay arbitration came on to be heard, it was conclusively shown there was then no “ dispute ” of any kind or nature between the board and “ the architect ”.

      Carrollton A. Roberts for Thomas L. White and another, respondents in the first above-entitled proceeding and appellants in the second above-entitled proceeding.
    I. White and Helm constitute a majority of the party of the second part in the contract between “ the architect ” and the board of education and have the right of choice as to whether or not there shall be arbitration. (Clarke v. State Valley R. Co., 136 Pa. 408.) II. The matters as to which Baker seeks arbitration in his two notices of intention to arbitrate are not matters in “ dispute ” between ‘ ‘ the architect ’ ’ and the board but personal matters between Baker and the board.
   Burke, J.

The board of education as Owner ” entered into a contract with two architectural firms; Ervay J. Baker of Hammond sport, New York, the appellant, and White and Helm of Geneva, New York, as “ Architect ” in connection with the construction of school buildings at Bath, New York. The contract between the owner and the architect contained an arbitration clause which provided: “12. Arbitration. All questions in dispute under this agreement shall be submitted to arbitration at the choice of either party ”. On the same day a contract was entered into between the two architectural firms which incorporated by reference the provisions of the contract between the owner and the architect. The terms and conditions of the architects’ contract were known to the board of education. Under the terms of the contract between the architects, Baker was responsible for the supervision of construction and the issuance to the contractor of certificates entitling the contractor to interim payments. During the course of construction, Baker, believing that the payment of a requisition of $81,000 would amount to a total payment in excess of the contractor’s costs up to that time and might enable the contractor to avoid the completion of the unfinished work within the contract price, notified the contractor that he required a justification of the requisition before he would approve the payment. The contractor notified the board and Baker of his intention to terminate the contract, and ceased work. Then the board negotiated a settlement with the contractor without consulting Baker or considering the data Baker had assembled, justifying, in his opinion, the refusal to certify the payment. On October 22, 1953, the board passed a resolution discharging Baker. Since then Baker has received no compensation.

Baker filed two claims against the board of education, dated November 30, 1953. The first claim sought the payment of fees due to the associated architects. The second claim covered only Baker’s share of the fees plus his disbursements and was founded on the theory of board liability arising from the board’s action in compelling White and Helm to sever their association with Baker. Upon the rejection of the claims, Baker requested White and Helm to join him in demanding arbitration. When White and Helm failed to reply, Baker served, in his own name, a demand for arbitration on the board and provided White and Helm with copies of the demand. The board and White and Helm moved separately to stay permanently the demand for arbitration. The motions were granted and the orders entered staying arbitration have been affirmed.

After the motions were granted in the first proceeding, Baker filed a new claim in the joint names of Baker and White and Helm”. This claim was the subject of a second proceeding to stay arbitration, in which orders were entered granting a stay. The orders entered in the second proceeding were also affirmed by the Appellate Division.

The board contends that none of the questions propounded in the notice of intention to arbitrate concern a dispute with the board.

The questions are based on the actions of the board in settling with the contractor without a certificate approving payment executed by Baker and in discharging Baker, coupled with a refusal to compensate him or reimburse him for expenses allegedly incurred, as provided for by the owner-architect contract.

It is our view that a bona fide dispute exists which must be arbitrated pursuant to clause 12 of the contract. Any differences between Baker and the contractor or Baker and his associate architect, ‘ ‘ White and Helm ’ ’, arose out of the performance on his part of his duties under the contract. The dispute, therefore, is between Baker and the board as to the propriety of their respective acts. Since the disputes are within the scope of the arbitration clause, they must be settled by arbitration, if demanded by either party. (Matter of Wenger & Co. v. Propper Silk Hosiery Mills, 239 N. Y. 199, 202; Matter of Lipman [Haeuser Shellac Co.], 289 N. Y. 76; Matter of Bohlinger [National Cash Register Co.], 305 N. Y. 539.)

As an arbitrable dispute exists between the owner and the architect, we must now determine whether Baker is entitled to demand arbitration without the acquiescence of ‘ ‘ White and Helm ” or White or Helm. The contract gives “ either party ” the right to compel arbitration. The enforcement of the right to arbitration of the architect party turns on the composition of the association of the architects in this case. Were there three equal partners, Baker, White, Helm, all individuals; or were there two equal partners, Baker, an individual and “ White and Helm ”, a partnership! A partnership, as such, can be a member of another partnership, if that be the intent of the parties. (Uniform Partnership'Act, Commissioners’ Note, § 6; 7 Uniform Laws, p. 11; Houston v. McCrory, 140 Okla. 21; Replogle v. Neff, 176 Okla. 333; Matter of Hamilton, 1 F. 800; 1 Rowley on Modern Law of Partnership, § 192, p. 197; Shumaker on The Law of Partnership, pp. 142-143; 68 C. J. S., Partnership, § 68, p. 500.) This partnership was composed of two members, Baker, an individual, and “ White and Helm ” a partnership. The commissions were to be paid one half to Baker and one half to “ White and Helm ”. The association contract was executed by Thomas Lyon White and F. Kirk Helm not as individuals, but as members of the partnership. Section 20 (subd. 3, par. [e]) of the Partnership Law has no application to the situation in this case as that section of the statute prohibits submission of a dispute to arbitration by one partner only in the absence of a contract containing an arbitration clause. The contract containing the arbitration clause has been signed by all the partners and the dispute is one within the coverage of the arbitration clause. Under such conditions, one of two members of a partnership may demand arbitration without the consent of the other partner as such partner is an agent of the partnership (Partnership Law, § 20, subd. 1; Matter of Damsker [Carey], 283 App. Div. 719). We do not decide whether one of three equal partners may compel arbitration of a dispute arising out of a contract to which the partnership is a party.

There is no merit to the objection that the notices of claim are defective in that they failed to comply with section 3813 of the Education Law, because they were filed in Baker’s name rather than that of the architect’s. We find no rigid requirement imposed by the statute in such specific terms. Hence, according to the weight of authority, all that is required is a substantial compliance with the statute. (6 McQuillin on Municipal Corporations [2d ed.], § 2895; Schwartz v. City of New York, 250 N. Y. 332.) The original notices were more than sufficient to fully apprise the board of the notice of the claim asserted against it.

Our disposition of this appeal does not require us to discuss the notice of claim filed subsequent to the granting of the motions to stay the arbitration made in the first proceeding.

Inasmuch as we do not pass upon the merits of the decisions made in connection with the subsequent claim, the proper practice here is to reverse the later order of the Appellate Division in the second proceeding, and to remit the proceeding to Special Term with directions to dismiss the motions directed to the subsequent claim, not on the merits, but solely upon the ground that the issues are moot. (Wilmerding v. O’Dwyer, 297 N. Y. 664, Matter of Adirondack League Club v. Board of Black Riv. Regulating Dist., 301 N. Y. 219.)

The orders of the Appellate Division entered January 5, 1955, should be reversed, and the proceedings remitted to Special Term with directions to deny the motions on the merits, with costs, and the order of the Appellate Division dated March 23, 1955, should be reversed, and the proceedings remitted to Special Term with directions to dismiss the motions, not on the merits, but on the grounds that the issues are moot, with costs.

Conway, Ch. J., Desmond, Fuld, Froessel and Van Voorhis, JJ., concur; Dye, J., taking no part.

In each proceeding: Order of Appellate Division reversed, with costs in all courts, and matter remitted to Special Term for further proceedings in accordance with the opinion herein.


author: Van Voorhis, J. Froessel, J.

text:
    In the Matter of the Claim of Louis C. Detenbeck, Respondent, against General Motors Corporation, Appellant. Workmen’s Compensation Board, Respondent.
    Argued October 13, 1955;
    decided February 16, 1956.

      Solon J. Stone, William M. Fay, William A. Bain, Jr., Robert M. Spaulding and Frederick W. Danforth, Jr., for appellant.
    The Appellate Division erred when it decided that claimant-respondent’s back strain with nerve root irritation constituted an occupational disease. (Matter of Goldberg v. 954 Marcy Corp., 276 N. Y. 313; Matter of Harman v. Republic Aviation Corp., 298 N. Y. 285; Matter of Champion v. Gurley, 299 N. Y. 406; Matter of Buckley v. Gallagher Bros. Sand & Gravel Corp., 300 N. Y. 447; Matter of Guarnera v. Radio Picture Frame Co., 267 App. Div. 843; Matter of Walker v. McCarthy, 276 App. Div. 801; Matter of Buchanan v. Bethlehem Steel Co., 278 App. Div. 594, 302 N. Y. 848; Matter of McLaughlin v. Alco Gravure Div. of Pub. Corp., 268 App. Div. 839, 294 N. Y. 642; Matter of Connell v. Walsh Constr. Co., 265 App. Div. 1024, 290 N. Y. 930; Matter of Griffin v. Griffin & Webster, 283 App. Div. 145, 306 N. Y. 984.)

      Jacob 'K. Javits, Attorney-General (Daniel Polonsky, James O. Moore, Jr., and Roy Wiedersum of counsel), for Workmen’s Compensation Board, respondent.
    I. Ample evidence established that claimant’s disability was causally related to and the result of an occupational disease within the scope of section 3 (subd. 2, par. 29) of the Workmen’s Compensation Law. (Matter of Goldberg v. 954 Marcy Corp., 276 N. Y. 313; Matter of Briggs v. Hope’s Windows, 284 App. Div. 1077; Matter of De Bella v. Hotel Windsor, 284 App. Div. 919; Matter of Paradiso v. Vuozzo, 277 App. Div. 802, 301 N. Y. 815; Matter of Zumbolo v. Bigelow-Sanford Carpet Co., 279 App. Div. 680; Matter of Piparo v. Klar, 273 App. Div. 935; Matter of Buchanan v. Bethlehem Steel Co., 278 App. Div. 594, 302 N. Y. 848; Matter of Smith v. Central Foundry Div., Gen. Motors Corp., 274 App. Div. 860; Matter of Foster v. Gillinder Bros., 252 App. Div. 903, 278 N. Y. 348; Matter of Bettcher v. du Pont de Nemours & Co., 255 App. Div. 734, 280 N. Y. 850; Matter of Townsend v. Union Bag & Paper Corp., 307 N. Y. 710; Matter of Griffin v. Griffin & Webster,
      283 App. Div. 145, 306 N. Y. 984; Matter of O’Neil v. American Locomotive Co., 276 App. Div. 1043; Matter of Moore v. Colonial Sand & Stone Co., 261 App. Div. 857, 285 N. Y. 860; Matter of Peloso v. D’Alessio Bros., 272 App. Div. 984, 298 N. Y. 582; Matter of Pinto v. Competent Fur Dressers, 271 App. Div. 1036, 297 N. Y. 846; Matter of Condon v. National Aniline Div., Allied Chem. & Dye Corp., 267 App. Div. 1020; Matter of Hessinger v. City of New York, 264 App. Div. 802, 289 N. Y. 853; Matter of Shepardson v. Roosevelt Hosp., 271 App. Div. 760.)
   Van Voorhis, J.

Claimant sustained a back injury while employed in appellant’s industrial plant in Buffalo, Few York. The nature of the work in which he was engaged was not such as to produce disabilities of this description among the rank and file of men. This condition in claimant’s case was due to a congenital defect of the spine. He has not been held to have sustained an industrial accident; workmen’s compensation has been awarded upon the theory that he is the victim of an occupational disease. In affirming, the Appellate Division thus summarized the undisputed facts: ‘ ‘ While a normal person would not have been affected it is rather clear that all employees who had the same weakness would in all probability be similarly affected ”, but added: “ This is sufficient to bring the condition within the classification of an occupational disease.” We think that the legal conclusion contained in the second sentence has not been correctly drawn from the facts stated in the first sentence. The rule regarding occupational diseases differs from that concerning industrial accidents, in that an accident resulting in disability is compensable even though it would not have occurred unless the employee had been predisposed to it through some pre-existing physical defect. 11 An ailment does not become an occupational disease simply because it is contracted on the employer’s premises. It must be one which is commonly regarded as natural to, inhering in, an incident and concomitant of, the work in question. There must be a recognizable link between the disease and some distinctive feature of the claimant’s job, common to all jobs of that sort. As this court observed in Matter of Goldberg v. 954 Marcy Corp. (276 N. Y. 313, 318-319), an occupational disease is one ‘ which results from the nature of the employment, and by nature is meant * * * conditions to which all employees of a class are subject, and which produce the disease as a natural incident of a particular occupation, and attach to that occupation a hazard which distinguishes it from the usual run of occupations and is in excess of the hazard attending employment in general.’ ” (Matter of Harman v. Republic Aviation Corp., 298 N. Y. 285, 288; Matter of Champion v. Gurley, 299 N. Y. 406.)

Although this claimant incurred his disability while working for appellant, the nature of his employment was not such as to have a tendency to induce a similar malady in the average workman. Insofar as it caused this result, the work in which he was engaged simply amounted to the ordinary wear and tear of life impinging on the infirmity with which this man had been born and which he had carried with him during all of his previous life. That is not what the Legislature intended to cover by “ Any and all occupational diseases ” in paragraph 29 of subdivision 2 of section 3 of the Workmen’s Compensation Law. As was said in Matter of Harman v. Republic Aviation Corp. (supra, p. 287): “ A contrary decision, approval of the award, would transform workmen’s compensation into life and health insurance.” It would encroach upon the field of the disability benefits law enacted by chapter 600 of the Laws of 1949, whereunder ‘ ‘ ‘ Disability ’ during employment means the inability of an employee, as a result of injury or sickness not arising out of and in the course of employment, to perform the regular duties of his employment ” (§ 201, subd. 8).

Certain awards for occupational diseases have been affirmed, to be sure, where the claimant suffered from pre-existing physical defects (Matter of Pinto v. Competent Fur Dressers, 297 N. Y. 846; Matter of Peloso v. D’Alessio Bros., 298 N. Y. 582), but it is important to note that in the subsequent case of Matter of Champion v. Gurley (299 N. Y. 406) the rule was reaffirmed that had been enunciated previously in the leading cases of Matter of Goldberg v. 954 Marcy Corp. (276 N. Y. 313), Matter of Harman v. Republic Aviation Corp. (298 N. Y. 285, supra), and the cases cited therein. These decisions involving pre-existing defects hold that predisposition of an employee to an occupational disease does not prevent him from having the benefit of workmen’s compensation, if he develops what would ordinarily be an occupational disease; that, likewise, appears to be the purport of the affirmance of the awards in Matter of Buchanan v. Bethlehem Steel Co. (302 N. Y. 848) and Matter of Townsend v. Union Bag & Paper Corp. (307 N. Y. 710). An employee who is physically handicapped may contract an occupational disease more easily because of his weakened condition, but the test of what is an occupational disease is the same whether the employee is decrepit or in normal health. There must be a recognizable link between the disease and some distinctive feature of the claimant’s job. This test is not met where disability is caused by an aggravation of a condition which is not occupational in nature. If an employee contracts an occupational disease, he is not to be prejudiced by reason of a pre-existing illness or defect, but neither is he to be preferred over other employees by creating a different class of compensable disabilities for his benefit.

The order appealed from should be reversed and the claim dismissed.

Froessel, J.

(dissenting). In August, 1947, claimant commenced working for appellant, a manufacturer of motor cars, as an inspector in the piston department. He had a congenitally weak back, but it had never troubled him before. The duties of this job required no lifting. In July, 1951, he was transferred to the salvage department, where he was also called an inspector, although he stated he did not know why. As such, he was required as a relief man to check cylinder bores and fill in reports, but, in addition thereto, he had to go around the plant with a cart and pick up scrap, marking it for salvage.

One out of every two or three days it was his duty to pick up between 30 and 40 engine cases, and sometimes as many as 60, each weighing about 176 pounds. He would be required, without assistance, to place the first layer on the cart by tipping the case upward and sliding it on; he would then secure someone to help him with the next layer. About once a month he would also have to remove pans of camshaft bearings, which were likewise too heavy to be lifted and were slid onto a cart. Claimant was additionally required to load on cars bushings from the piston department, which were placed in barrels weighing over 100 pounds, and then remove them. He usually did this work alone.

In September, 1951, claimant felt pains in the left side of his spine. In November or December, 1951, he reported these pains to the company doctor, who suggested heat treatment and the use of a bed board. Claimant nevertheless continued work on the same job until September, 1952, except for two periods of six weeks each, during one of which he was disabled by an unrelated illness, and during another he was laid off when the plant was closed. In September he went to the hospital for tests, after which he attempted to return to work, but was compelled to discontinue because of his back.

The board found that ‘ ‘ the evidence supports the Referee finding of a causally related occupational disease under Section 3, Subdivision 2, Paragraph 29 ” of the Workmen’s Compensation Law, and the Appellate Division unanimously affirmed. Paragraph 29 was first added as paragraph 28 to said subdivision 2 by chapter 254 of the Laws of 1935. The previous paragraphs describe specific diseases as well as the process in each case in which it must be contracted in order to make it compensable. Paragraph 28 (now 29) supplemented the scheduled diseases by adding thereto the broad language “ Any and all occupational diseases ”, and described the process as Any and all employments enumerated in subdivision one of section three of this chapter Among the employments described as “ hazardous ” in said subdivision is claimant’s present employment: — 1 ‘ Manufacture of * * * Automobiles ” in group 6, and “ Work in * * * Machine shops ” in group 14. Thus claimant’s occupation is clearly among the hazardous employments and comes within the description of the process associated with paragraph 29.

In addition to the inherent general hazards of such employment, there is evidence in this case, as already noted, that claimant was required to bend, and to lift, push and move heavy engine cases weighing 176 pounds and barrels of defective motor parts each weighing over 100 pounds, which may well be described as “ a hazard which distinguishe [d] it from the usual run of occupations and which [was] in excess of the hazard attending employment in general ” (Matter of Goldberg v. 954 Marcy Corp., 276 N. Y. 313, 319).

Inasmuch as the Legislature has used the all-embracing language “ Any and all occupational diseases ” without limita,tian other than describing the process in which such disease must be contracted, the courts have been required to decide in specific cases since the enactment of the statute whether or not they came within its provisions.

The majority rely on Matter of Goldberg v. 954 Marcy Corp. (276 N. Y. 313, supra); Matter of Harman v. Republic Aviation Corp. (298 N. Y. 285 [1948]), and Matter of Champion v. Gurley (299 N. Y. 406 [1949]). Matter of Goldberg was decided in 1938, shortly after the enactment of said paragraph 28. It was there held that a cashier selling tickets in an outside ticket booth who sustained skin blotches and numb and weak feet as a result of turning a heater on and off was not suffering from an occupational disease, but we affirmed the award on the ground of accidental injury. There the disease was not caused by the nature of her employment, for her work of ‘ ‘ handling cash and tickets ” in and of itself had nothing to do with the ensuing disability.

In Matter of Harman v. Republic Aviation Corp. (supra) claimant, a worker in a well-ventilated tool shop, contracted tuberculosis from a fellow employee. We reversed the award, holding that claimant’s ailment was not an occupational disease, that the hazard was his fellow worker “ and not any condition that inhered in the nature of the employment itself ’ ’, and distinguished that case from Matter of Hessinger v. City of New York (264 App. Div. 802, motion for leave to appeal denied 289 N. Y. 853); Matter of Shepardson v. Roosevelt Hosp. (271 App. Div. 760); Matter of Yearich v. Roosevelt Hosp. (264 App. Div. 961, motion for leave to appeal denied 289 N. Y. 854); Matter of Vanore v. Mary Immaculate Hosp. (285 N. Y. 631); Matter of Mason v. Y. W. C. A. of City of New York (271 App. Div. 1042, motion for leave to appeal denied 297 N. Y. 1037).

In Matter of Champion v. Gurley (supra) claimant was an inspector of surveying instruments. The onset of thrombophlebitis followed jumping down from a raised platform on which claimant’s desk was “temporarily located” for a few weeks. We again reversed the award, stating (p. 408) that the exposure was like that “ of the claimant to the tuberculosis suffered by a fellow bench worker in the Harman case ” (supra), and that the ‘ ‘ incident described as responsible for the onset of the disease was limited to the claimant’s personal, individual situation due to the temporary location of his desk on a platform

Thus in each of these cases the disability did not ensue because of the nature of the particular employment, but because of the failure of the employer to furnish a proper and safe place to work — an improper heating arrangement, an infected fellow employee, and a raised platform, all temporary conditions. It is true that in those cases we added that the disease must be one which resulted wholly from the nature of the employment, and must be a condition to which all workers engaged in that particular occupation would be subject, but the question of a pre-existing dormant physical condition was neither involved nor discussed, as it was in other and later cases which we shall presently consider.

In any event, it is well settled that a judicial opinion, like evidence, is only binding [unless we decide to overrule it] so far as it is relevant, and when it leaves the point at issue it no longer has binding force (Crane v. Bennett, 177 N. Y. 106, 112; Colonial City Traction Co. v. Kingston City R. R. Co., 154 N. Y. 493, 495), and what is said in such opinion must be confined by the facts of the case in which it is uttered (People ex rel. Desiderio v. Conolly, 238 N. Y. 326, 332; People ex rel. City of New York v. Nixon, 229 N. Y. 356, 361; Frechette v. Special Magazines, 285 App. Div. 174, 177). Mindful of those rules, what was actually and necessarily decided in the cases relied on by the majority does not, in the light of the decisions about to be discussed, support their holding here.

In cases where the disability resulted from the nature of the employment, we allowed awards for occupational diseases to stand: (Matter of Foster v. Gillinder Bros., 278 N. Y. 348 [1938] [constant twisting and straining of body in lifting glass from furnace]; Matter of Bettcher v. E. I. du Pont de Nemours & Co., 255 App. Div. 734 [1938], motion for leave to appeal denied 280 N. Y. 850 [continuous lifting of heavy objects weighing 150-156 pounds]; Matter of Vanore v. Mary Immaculate Hosp., 285 N. Y. 631 [1941], supra, and Matter of Yearich v. Roosevelt Hosp., 264 App. Div. 961 [1942], motion for leave to appeal denied 289 N. Y. 854, supra [hospital attendants contracted tuberculosis from patients]; Matter of Mason v. Y. W. C. A. of City of New York, 271 App. Div. 1042 [1947], motion for leave to appeal denied 297 N. Y. 1037, supra [telephone operator contracted tuberculosis from infected telephone equipment]).

We turn then to the cases involving a pre-existing dormant condition which has been activated or aggravated by the nature of the employment. In Matter of Moore v. Colonial Sand & Stone Co. (261 App. Div. 857 [1941], motion for leave to appeal denied 285 N. Y. 860) an award was allowed on the ground that a pre-existing dormant condition of tuberculosis was aggravated by claimant’s occupation as a truck washer and greaser.

In Matter of Pinto v. Competent Fur Dressers (271 App. Div. 1036, affd. 297 N. Y. 846 [1948]), involving a fur worker, and Matter of Peloso v. D’Alessio Bros., 298 N. Y. 582 [1948]) involving a worker in wet and cold areas, we held there may be a finding of an occupational disease when the conditions of the employment merely aggravate a pre-existing dormant condition.

In Matter of O’Neil v. American Locomotive Co. (276 App. Div. 1043 [1950], motion for leave to appeal denied 301 N. Y. 815), claimant, who operated a degreasing machine, suffered from arrested pulmonary tuberculosis prior to his employment. He became totally disabled due to the nature of his employment, and reactivation of tuberculosis was held to be an occupational disease.

In Matter of Buchanan v. Bethlehem Steel Co. (278 App. Div. 594, affd. 302 N. Y. 848 [1951]) claimant had a job which also involved considerable lifting and pulling of steel products. He too had a congenitally weak back which contributed to the disability for which an award was made, and affirmed by the Appellate Division. In that court, the majority rejected the argument made in the dissenting opinion that since there was no proof that claimant’s condition was a natural incident of his occupation to which all employees of the same class were subject, and inasmuch as, on the contrary, the proof was that people with normal backs would not be thus affected, the award should be reversed. We too disapproved the reasoning of the dissenting opinion by our unanimous affirmance.

In Matter of Griffin v. Griffin & Webster (283 App. Div. 145, motion for leave to appeal denied 306 N. Y. 984 [1954]), claimant in an ice plant became totally disabled as the result of the aggravation of a pre-existing condition of arteriosclerosis peripheral vascular disease of the feet and ankles, which aggravation was due to the nature of his employment. There was no proof that his pre-existing condition could have been caused by the occupation — the proof was entirely the other way. The board found that the work aggravated the underlying condition and the aggravation was an occupational disease. The Appellate Division in affirming the award stated (p. 148): “ Notwithstanding the implications of exclusive causation in the use of the word ‘ wholly ’ under the Washington decision in the Seattle Can case , the actual trend of New York decisional law both in the Court of Appeals and in this court seems to be to examine the end result of the exposure to determine if the occupation itself caused the disablement and, if it did, to hold the disease to be ‘ occupational ’ even if the employee brought within himself a predisposition to the disablement shared by no other employee of his class. ’ ’ As noted, we denied leave to appeal.

Most recently, in Matter of Townsend v. Union Bag & Paper Corp. (282 App. Div. 968, affd. 307 N. Y. 710 [1954]), we affirmed an award for an occupational disease which was based on a finding that the nature of claimant’s employment — pushing a hand truck carrying 50-gallon barrels of paste across a concrete floor — had caused the aggravation of a pre-existing congenital condition of flat feet. Once again we rejected appellant’s contention that since the work alone did not produce the condition, there was no occupational disease.

The present appeal does not present the case of an ailment merely happening on the employer’s premises. There is no issue of causal relationship between claimant’s condition and his work. It is true that he had a congenital malformation in his back, but that had never caused him trouble before his present employment. The nature of his work caused the present disablement. His occupation was defined by statute as hazardous ”, and the bending, lifting, pushing and moving of heavy engine cases and barrels of metal clearly distinguishes it from the so-called usual run of occupations. It was more than ‘ ‘ the ordinary wear and tear of life impinging on the infirmity with which this man had been born ” and which infirmity he carried with him without any difficulty during all of his previous life.

Under the broad definition of paragraph 29, his disablement constituted an occupational disease. We have so held within the last five years in the cases hereinbefore cited, particularly in the Townsend, Griffin, Buchanan and O’Neil cases (supra). We should therefore not refuse to do so again here, mindful at the same time of the rule long since laid down in workmen’s compensation cases that the Workmen’s Compensation Law is a remedial statute and as such entitled to a liberal construction (Matter of Commissioner of Taxation & Finance v. Nu-Art Adv. Co., 271 N. Y. 112). Such has been the trend not only of our decisions, but, according to Larson (Larson on Workmen’s Compensation Law, § 41.62), is the majority rule in the country (Le Lenko v. Lee Co., 128 Conn. 499; Giambattista v. Thomas A. Edison, Inc., 32 N. J. Super. 103 [1954]; Simpson Logging Co. v. Department of Labor & Industries, 32 Wn. 2d 472, overruling in effect Seattle Can Co. v. Department of Labor & Industries, 147 Wash. 303; Samuels v. Goodyear Tire & Rubber Co., 317 Mich. 149; Kroger Grocery & Baking Co. v. Industrial Comm., 239 Wis. 455).

In our view, the court is now about to overrule a line of comparatively recent cases which squarely presented the issue of work-induced aggravation of an employee’s pre-existing ailment resulting in disability and in which we allowed awards for an occupational disease under paragraph 29 to stand. We not only prefer to follow them, but deem it our duty to do so.

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

Desmond, Fuld and Burke, JJ., concur with Van Voorhis, J.; Froessel, J., dissents in an opinion in which Conway, Ch. J., concurs; Dye, J., taking no part.

Order of Appellate Division reversed, award of the Workmen’s Compensation Board annulled and claim dismissed, with costs in this court and in the Appellate Division against respondent Workmen’s Compensation Board.

        Seattle Can Co. v. Department of Labor & Industries (147 Wash. 303) cited in the Harman case (supra), hut in effect overruled by Simpson Logging Co. v. Department of Labor & Industries (32 Wn. 2d 472).