author: Chief Judge Cooke. Jasen, J.

text:
    The People of the State of New York, Appellant, v Raphael Berger, Respondent.
    Argued December 17, 1980;
    decided February 17, 1981

      POINTS OF COUNSEL

      Eugene Gold, District Attorney (Beth S. Lasky and Sharen Litwin of counsel), for appellant.
    Criminal solicitation of perjury does not require corroboration of the solicitee’s testimony when the solicitee is not an accomplice of the solicitor. (People v Cohen, 20 AD2d 801, 15 NY2d 675; People v Batt, 165 Misc 540; People v Gondelman, 253 App Div 924; People v Evans, 40 NY 1; People v Teal, 133 App Div 35, 196 NY 372; People v Lubow, 29 NY2d 58; People v Quentin, 58 Misc 2d 601; People v Beaudet, 31 AD2d 705; People v Ezaugi, 2 NY2d 439; People v Gillette, 126 App Div 665.)

      John Joseph Sutter and Larry Dorman for respondent.
    I. Criminal solicitation of perjury requires corroboration of the solicitee’s testimony. (People v Evans, 40 NY 1; People

      v Gondelman, 253 App Div 924; People v Cohen, 20 AD2d 801; Matter of Delmar Box Co. [Aetna Ins. Co.], 309 NY 60; People v Lubow, 29 NY2d 58.) II. The alleged recantation of the perjured testimony by the solicitee does not support the conviction of the solicitor. (People v Gillette, 126 App Div 665; People v Ezaugi, 2 NY2d 439.) III. Should this court remit to the court below for a factual determination, it is respectfully requested that the issue of excessiveness of sentence be remitted as well.
   OPINION OF THE COURT

Chief Judge Cooke.

Defendant was convicted of criminal solicitation of perjury based solely upon the testimony of Vivian Gambino, the alleged solicitee. The issue is whether that testimony required corroboration either because Mrs. Gambino was the solicitee, or because she was an accomplice, as a matter of law.

Defendant, Raphael Berger, was indicted in Kings County and charged with three counts of grand larceny in the second degree and one count of criminal solicitation in the second degree. The larceny charges stem from an alleged fraudulent loan scheme. It was charged that defendant solicited other persons to submit falsified loan applications, the proceeds of which he would ultimately receive and retain. The solicitation charge was based upon an alleged conversation with one of the loan applicants, Vivian Gambino, in which defendant urged her to commit perjury before a Grand Jury investigating the loans. Mrs. Gambino did in fact appear before the Grand Jury and concededly lied in her testimony. A short time later, after being warned that she was in danger of being prosecuted, Mrs. Gambino returned to the Grand Jury and recanted her false testimony.

After a non jury trial, the court acquitted defendant of the larceny charges. Although the Trial Judge acknowledged that the only evidence of the solicitation was the testimony of Mrs. Gambino, he nonetheless found defendant guilty of criminal solicitation thus rejecting the argument that corroboration was required. A unanimous Appellate Division reversed and dismissed the indictment. The Appellate Division held that corroboration was necessary to establish criminal solicitation of perjury, inasmuch as prior law provided that the suborner and subornee of perjury were accomplices. There should be an affirmance, but for reasons which differ somewhat from those of the Appellate Division.

At common law, it was the general rule that “the testimony of a single witness, no matter what the issue or who the person, may legally suffice as evidence upon which the jury may found a verdict” (7 Wigmore, Evidence [3d ed], § 2034, at p 259 [emphasis in original] ; see, also, People v Gibson, 301 NY 244, 245-246). Indeed, it was this rule which served, in part, to distinguish trials in common-law courts from trials in civil and ecclesiastical courts (id., § 2032). For, under the civil law, the process of proof rested on a numerical system generally requiring more than one witness. So complete was the common law’s rejection of the civil law approach that early judicial decisions carved out but one exception to the single witness rule: corroboration was necessary in criminal prosecutions for perjury (id., § 2040). In more recent times, corroboration rules have been established, usually by statute, as part of the proof for certain crimes (e.g., Penal Law, § 210.50 [perjury]) or as a safeguard when particular categories of witnesses testify (e.g., CPL 60.20 [testimony of unsworn witness less than 12 years old] ; CPL 60.22 [accomplice testimony]). Thus, a court must consider both the crime charged and the particular class of witness testifying to determine whether corroboration is necessary.

As we have had occasion to note, the Legislature did not impose a corroboration requirement for the crime of criminal solicitation (People v Lubow, 29 NY2d 58, 65-66). And, it would be inappropriate for us to engraft such a rule into that statute, absent some important justification. None is apparent in these circumstances. While it is true that inchoate crimes such as solicitation might present special problems of proof and credibility (People v Lubow, 29 NY2d 58, 65-66, supra; see, also, Wechsler-Jones-Korn, Treatment of Inchoate Crimes in the Model Penal Code: Attempt, Solicitation and Conspiracy, 61 Col L Rev 571, 623), these differ in degree, but not in kind, from the general difficulties encountered in the fact-finding process. Courts are daily called upon to resolve questions of proof and credibility, and the single witness rule has generally proved adequate for this purpose. There is no particular reason to believe, if care is taken in fact-finding and appellate fact review, that the courts will be unable to perform their historic function in cases involving the crime of solicitation (see People v Lubow, supra, at pp 65-66). Thus, there is no basis for requiring corroboration merely because criminal solicitation is charged.

In the present case, however, this does not end the matter. Although proof of criminal solicitation itself need not be corroborated, other rules requiring corroboration of the testimony of particular categories of witnesses must be examined. Here, defendant urges that the witness, Mrs. Gambino, was an accomplice as a matter of law. This position is not without merit.

Traditionally, the law has viewed accomplice testimony with a suspicious eye (see, e.g., People v Dixon, 231 NY 111, 116; People v Everhardt, 104 NY 591, 594; People v Doyle, 21 NY 578, 579-580). While such evidence is competent,* * it may often lack the inherent trustworthiness of the testimony of a disinterested witness (e.g., People v Duncan, 46 NY2d 74, 79; 7 Wigmore, Evidence [3d ed], § 2057, at p 322). This is so because one who concedes his or her own guilt of a crime and testifies against another might often be doing so to curry favor with the authorities. Courts have thus exercised the utmost caution in dealing with accomplice testimony, especially when the testimony is exchanged for immunity or other favorable prosecutorial consideration (e.g., People v Duncan, supra; People v Doyle, 21 NY 578, 579, supra). And, many years ago the Legislature saw fit to provide that the uncorroborated testimony of an accomplice would not suffice for a conviction (L 1882, ch 360, § 1 [amdg Code Grim Pro, § 399]).

The modern version of the accomplice corroboration statute is CPL 60.22. That section requires corroborative evidence “tending to connect the defendant with the commission of” the offense. For purposes of the corroboration rule, an accomplice is defined as a witness who, according to the evidence adduced during the trial, “may reasonably be considered to have participated in: (a) The offense charged; or (b) An offense based upon the same or some of the same facts or conduct which constitute the offense charged” (CPL 60.22, subd 2).

It is important to emphasize that the corroboration statute’s definiton of an accomplice differs significantly from the Penal Law section that provides for accomplice criminal liability (Penal Law, § 20.00). Indeed, this court has previously recognized that CPL 60.22 broadened the definition of an accomplice “ ‘in order to provide a more equitable, operable and consistent standard for the courts in determining when the requirement of corroboration is applicable’ ” (People v Basch, 36 NY2d, 154, 157, quoting People v Beaudet, 32 NY2d 371, 378). Thus, even though a witness is not liable criminally as an accomplice for the offense being tried, the witness may be an accomplice for corroboration purposes if he or she may reasonably be considered to have participated in an offense based upon some of the same facts or conduct which make up the offense on trial. Significantly, the proof need not show the participation of the witness beyond a reasonable doubt; it is sufficient if the witness may reasonably be considered to have participated. And, of course, the witness need not be actually charged with any offense to be deemed an accomplice (see, e.g., People v Basch, 36 NY2d 154, 157-158, supra).

Under these principles, Vivian Gambino was an accomplice as a matter of law when she testified at defendant’s trial for criminal solicitation. When Mrs. Gambino, in response to defendant’s alleged solicitation, agreed to perjure herself before the Grand Jury and then actually did so, she became potentially liable for prosecution for the crime of conspiracy (e.g., Penal Law, § 105.00). The agreement occurred when she assented to defendant’s solicitation. An overt act occurred (Penal Law, § 105.20), if there was none prior, when she appeared before the Grand Jury and actually lied. Although the overt act is based upon conduct different from the criminal solicitation, the agreement element of the conspiracy is based upon the same facts as the solicitation. Thus, the conspiracy is based upon some of the same facts as the criminal solicitation, and Mrs. Gambino was an accomplice under GPL 60.22. 5Even if the conspiracy is labeled as a separate crime, as the dissent advocates, it cannot be denied that the conspiracy is based upon some of the same facts as the solicitation. Finally, since Mrs. Gambino admitted that she agreed to lie and that she actually did so, there was no fact question as to her participation, and her accomplice status was established as a matter of law (see, e.g., People v Basch, 36 NY2d, at p 157, supra).

The suggestion in the dissenting opinion that this court is overruling People v Lubow (29 NY2d 58, supra) is difficult to understand. The Lubow case merely noted, in discussing some of the aspects of the new criminal solicitation provisions, that the solicitation statute itself does not require corroboration (id., at pp 65-66). Not mentioned and not at issue in Lubow was the situation where the solicitee may be viewed as an accomplice (see id.). Indeed, so far as appears, the corroboration question was not discussed or urged by the parties. In accordance with the Lubow discussion, we today hold that no corroboration requirement is imposed by the criminal solicitation statute. But, as discussed, corroboration is necessary here because the witness was an accomplice as a matter of law. Corroboration is needed not because of the particular crime charged but because of the category of witness who testified.

Accordingly, it was error to convict the defendant upon the uncorroborated testimony of Mrs. Gambino, and the order of the Appellate Division should be affirmed.

Jasen, J.

(dissenting). The majority today holds that a criminal defendant may not be convicted of the crime of criminal solicitation solely upon the testimony of the solicitee where, as here, the crime solicited or “object crime” is actually committed by the solicitee. In so holding the majority has imposed a corroboration requirement not mandated by statute or the prior decisions of this court and has, in effect, overruled the decision of this court in People v Lubow (29 NY2d 58). In my view, the imposition of such a requirement is unnecessary and contrary to the intention of the Legislature. I therefore respectfully dissent and cast my vote to reverse.

In 1976 defendant Raphael Berger was indicted by a Kings County Grand Jury and charged with three counts of grand larcency in the second degree (Penal Law, § 155.35) and one count of criminal solicitation in the second degree (former Penal Law, § 100.05). The larceny charges arose out of a scheme whereby defendant allegedly requested others to submit loan applications containing false information to Chemical Bank to induce the bank to make loans to these individuals which would never be repaid and the proceeds of which would end up in defendant’s hands. The criminal solicitation charge was premised upon defendant’s solicitation of Vivian Gambino, one of the loan applicants, to commit perjury before a Grand Jury investigating the allegedly larcenous scheme.

At a trial before the court, defendant was acquitted of all larceny charges because, in the opinion of the court, the prosecution failed to show that the bank would not have made the loans in issue but for defendant’s alleged wrongdoing. He was, however, found guilty of criminal solicitation in the second degree. In its oral decision, the court noted that this conviction was premised solely upon the uncorroborated testimony of Mrs. Gambino that she lied before the Grand Jury at defendant’s request. The court held as a matter of law, however, that no corroboration of her testimony was required.

On appeal, the Appellate Division, Second Department, reversed defendant’s conviction and dismissed the indictment against him. The court held that while corroboration is, in general, not required to support a conviction of criminal solicitation, such corroboration is required where the crime solicited or the “object crime” is perjury and the conviction rests solely upon the testimony of the perjurer. The court noted that under prior law the suborner and subornee of the perjury were accomplices as a matter of law and concluded that the same accomplice relationship exists between solicitor and solicitee when the crime solicited is perjury. Having found defendant and Mrs. Gambino to be accomplices, the court reversed defendant’s conviction upon the ground that it was based solely upon the uncorroborated testimony of his “accomplice”. (CPL 60.22, subd 1.)

A majority of this court would affirm the disposition below. While on the one hand professing that it has declined the invitation to engraft judicially a corroboration requirement onto the provisions of the Penal Law proscribing criminal solicitation, the majority has on the other hand undertaken to achieve precisely the same result through what I believe to be an overly broad interpretation of the “accomplice corroboration rule” set forth in CPL 60.22. This sort of judicial sleight of hand, in my view, is unwarranted, for it matters little under which shell the majority finally brings the pea to rest, if the result of the shuffle is a rule not intended by the Legislature.

The statute defining criminal solicitation does not on its face require corroboration of the testimony of the solicitee as a prerequisite for conviction. (See Penal Law, § 100.00 et seq.) Moreover, as the majority candidly concedes, this court has, on a prior occasion, expressly refused to read such a corroboration requirement into the statute. (People v Lubow, 29 NY2d 58, supra.) I would not retreat from our holding in Lubow by premising a corroboration requirement upon the notion that the solicitor and solicitee are accomplices as a matter of law. In my opinion there is no basis upon which to find the solicitor and solicitee to be accomplices.

First, it should be noted that the court below erred in finding that defendant and Mrs. Gambino were accomplices simply because the crime solicited was perjury. While it is true that under prior law the suborner and subornee of perjury were accomplices of each other (see, e.g., People v Evans, 40 NY 1), the inherent differences between the crimes of subornation of perjury (former Penal Law, §§ 1632, 1632-a) and criminal solicitation (Penal Law, § 100.00 et seq.) require a holding that no such relationship exists between the solicitor and solicitee of perjury. The crime of subornation of perjury was not complete until the suborned perjury in fact occurred (see, e.g., People v Teal, 196 NY 372, 376). Thus, since the suborner’s crime could not even be committed without the aid and assistance of the subornee, the two were necessarily viewed as each other’s accomplices.

The crime of criminal solicitation, on the other hand, is complete at the point when the request that the solicitee commit the crime leaves the solicitor’s mouth. (People v Lubow, 29 NY2d 58, supra.) The crime of solicitation has been committed long before the solicited perjury occurs. No action or overt act on the part of the solicitee is required to perfect the solicitor’s crime. Obviously, if the solicitor’s request goes unheeded, the solicitee could in no way be considered to be his accomplice and the solicitor can, therefore, be convicted upon the uncorroborated testimony of the solicitee. This being so, it is difficult to understand how the solicitee’s complicity in the solicitor’s crime can later expand because at some point, after the solicitor’s request has become known to him, he decides to carry that request to fruition. The solicitor’s crime was complete before the solicitee decided to act. Therefore, the solicitee’s subsequent independent choice to act can have no effect whatever on the solicitor’s crime of criminal solicitation. Hence, the solicitee is not the solicitor’s accomplice.

This is not to say that where the object of the solicitation does occur the solicitee has committed no crime. Indeed, he has committed the so-called “object crime”. Furthermore, the solicitor is accessorially responsible for this object crime as well. (Penal Law, § 20.00.) However, while the solicitor is accessorially responsible for the object crime, it does not follow that the solicitee is the solicitor’s accomplice in the crime of solicitation since the solicitor’s crime was committed in its entirety before the solicitee testified or agreed to testify falsely before the Grand Jury. That the solicitee later saw fit to commit a crime himself, while it may well effect his credibility, does not make him the solicitor’s accomplice in committing the crime of solicitation.

Nor do I believe that GPL 60.22, the statutory “accomplice corroboration rule”, provides an adequate basis for finding defendant and Mrs. Gambino to be accomplices as to the crime of criminal solicitation. That statute defines the term accomplice as “a witness in a criminal action who, according to evidence adduced in such action, may reasonably be considered to have participated in: (a) The offense charged; or (b) An offense based upon the same or some of the same facts or conduct which constitute the offense charged.” In this case, it is abundantly clear that Mrs. Gambino could not, as noted earlier, have in any way participated in the offense charged (i.e., criminal solicitation) because that offense was complete upon the defendant’s solicitation of Mrs. Gambino to commit the' crime of perjury. The question, then, is whether the evidence adduced at trial shows Mrs. Gambino to have participated in an offense based upon “some of the same facts or conduct which constitute the offense charged.” (GPL 60.22, subd 2.)

The majority posits that Mrs. Gambino, by responding to defendant’s request that she commit perjury, became chargeable with the crime of conspiracy (Penal Law, § 105.00 et seq.) and, thus, may reasonably be considered to have participated in a crime based on some of the same facts or conduct which constitute the offense of criminal solicitation. While I agree that both the defendant and Mrs. Gambino might well be criminally liable for conspiracy, a crime the defendant was not charged with, I would not read GPL 60.22 so broadly as to use that potential liability as a basis for finding Mrs. Gambino to be defendant’s accomplice to the crime of criminal solicitation as a matter of law.

First, while one of the purposes of GPL 60.22 was to broaden the definition of the term “accomplice” (see, e.g., People v Beaudet, 32 NY2d 371, 378), it is also true that the term remains limited to those who are “in some way criminally implicated in, and possibly subject to, prosecution for the general conduct or factual transaction on trial.” (Denzer, Practice Commentary, McKinney’s Cons Laws of NY, Book 11 A, GPL 60.22, pp 194-195.) Here, Mrs. Gambino is not criminally implicated in or subject to prosecution for the general conduct or factual transaction on trial. The only conduct or factual transaction in issue is defendant’s criminal solicitation — nothing more. Mrs. Gambino is not criminally implicated in that solicitation and, in fact, had nothing whatever to do with it. It was a totally separate crime committed solely by the defendant which was complete before Mrs. Gambino did or agreed to do anything. This court has recognized that insofar as CPL 60.22 is concerned, where two crimes are totally separate, although factually related in a literal sense, the commission of the latter does not necessarily make a witness the accomplice of the person who committed the earlier crime. (Cf. People v Brooks, 34 NY2d 475.) Any crime which Mrs. Gambino may have committed was totally separate from and was committed after the defendant’s crime. Hence, she was not criminally implicated in the factual transaction on trial and was not defendant’s accomplice as to the criminal solicitation even under the broader definition set forth in CPL 60.22.

I also disagree with the broad interpretation which the majority gives CPL 60.22 because the result of such an interpretation is the tacit overruling of our decision in People v Lubow (29 NY2d 58, supra) . In the Lubow case, we held that corroboration of a solicitee’s testimony was not required to convict a solicitor of the crime of criminal solicitation. We made no distinction between those cases where the solicitee actually commits the solicited or “object” crime and those in which he does not. We made no such distinction in Lubow because we appropriately recognized that any subsequent activity after the solicitation occurs is irrelevant to the issue of whether criminal solicitation has been committed. Nowhere in the opinion is there the slightest hint that the applicability of the corroboration rule set forth in the case is in any way affected by the subsequent acts of the solicitee. Today, however, the majority has limited Lubow to only those cases where the solicitee fails to commit the “object crime”. By doing so, the court is tacitly overruling the Lubow case, at least insofar as it applies to situations such as the one at bar where the solicitee later decides to committ a separate crime.

Such a change in the law is not required by the language of CPL 60.22. Indeed, that statute was enacted before the Lubow case was decided. Therefore, to argue that the Legislature intended to overrule Lubow by enacting-CPL 60.22 is unconvincing at best.

It is also significant that the Legislature failed to include a corroboration requirement in the statute proscribing solicitation. The Legislature, in enacting the criminal solicitation provisions of the Penal Law, followed the example of the Model Penal Code which does not require corroboration, apparently believing, as did the drafters of the code, that the risk of false accusation implicit in the punishment of “inchoate” crimes was counterbalanced by the need to protect society from the act of criminal solicitation. (See Model Penal Code [Tent Draft No. 10], §5.02, Comment, p 83.) If the Legislature had taken the view that corroboration was necessary to prevent injustice in the application of the statute, it could easily have included language in the solicitation statute specifically requiring corroboration, as it has done in the case of criminal facilitation, another inchoate crime (see Penal Law, § 115.15) and as other States have-done in drafting their own solicitation statutes (see Cal Penal Code, § 653f). In our view, the Legislature’s failure to include a corroboration requirement in the statutory provisions defining criminal solicitation while expressly providing for such a requirement for the crime of criminal facilitation bespeaks a clear legislative determination that corroboration of the solicitee’s testimony need not be required to support a conviction of criminal solicitation. This being so, it is inappropriate for this court to judicially create such a requirement in the face of the statute’s silence on the matter, for to do so subverts the clear intention of the Legislature.

In sum, it seems to me that the majority’s decision to require corroboration in criminal solicitation cases where the solicitee commits the “object crime” is in clear conflict with a prior decision of this court and is contrary to the intention of the Legislature. Accordingly, I dissent and cast my vote to reverse.

Judges Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur with Chief Judge Cooke; Judge Jasen dissents and votes to reverse in a separate opinion.

Order affirmed.

      . Underlying the corroboration requirement is the notion that one man’s oath is as good as another’s and absent corroboration, there is only oath against oath (e.g., Regina v Muscot, 10 Mod 192).

      . The courts have not hesitated to create corroboration rules where necessary. Thus, as discussed, the common-law courts required corroboration for the crime of perjury (see n 1, supra). And, although under early New York common law accomplice testimony needed no corroboration, “it was customary for judges to instruct jurors that they should not convict * * * upon the evidence of an accomplice unless such evidence was corroborated” (People v Everhardt, 104 NY 591, 594).

      . Many unsuccessful attempts have been made to bar accomplice testimony from admission into evidence (see, e.g., Linsday v People, 63 NY 143, 152-154), especially through the 17th and 18th centuries in England, when accomplices were relied upon often in political prosecutions (7 Wigmore, Evidence [3d ed], § 2056, at p 312).

      . When criminal solicitation is charged, it might often be the case that the solicitee declined to perform the solicited crime. In such a situation, the solicitee could not be viewed as an accomplice, having not agreed to or actually undertaken the commission of a crime.

      . The following passage from Lubow — which constitutes the court’s entire discussion of the problem — demonstrates that the court was merely pointing to the lack of a corroboration requirement as a “potential difficulty”:
      “There are, however, potential difficulties inherit in this penal provision which should be looked at, even though all of them are not decisive in this present case. One, of course, is the absence of any need for corroboration. The tape recording here tends to give some independent support to the testimony of Silverman, but there are types of criminal conduct which might be solicited where there would be a heavy thrust placed on the credibility of a single witness testifying to a conversation. Extraordinary care might be required in deciding when to prosecute; in determining the truth; and in appellate review of the factual decision.
      “One example would be the suggestion of one person to another that he commit a sexual offense; another is the suggestion that he commit perjury. The Model Penal Code did not require corroboration; but aside from the need for corroboration which is traditional in some sexual offenses, there are dangers in the misinterpretation of innuendos or remarks which could be taken as invitations to commit sexual offenses. These are discussed by Wechsler-Jones-Korn (61 Col. L. Rev., p 623, supra) with the comment that ‘it is a risk implicit in the punishment of almost all inchoate crimes’.” ■

      . Contrary to the dissenting opinion’s reasoning, the absence of a corroboration requirement in the Penal Law provision proscribing criminal solicitation does not suggest that other corroboration requirements can be dispensed with. Otherwise accomplice testimony by itself could establish any substantive crime, such as murder, so long as the Penal Law provision defining that crime does not provide for corroboration.

         The Penal Law has since been amended to make criminal solicitation a more serious crime when the solicitee is a person under 16 years of age. (See Penal Law, § 100.05, subd 2; §§ 100.08, 100.13.) In this revision, the former second degree crime of which defendant was convicted becomes criminal solicitation in the fourth degree without change in penalty or substance. (Penal Law, § 100.05, subd 1.)


source: Caselaw Access Project

author: Jasen, J.

license: Public Domain

text:
    Continental Casualty Company, Appellant, v Equitable Life Assurance Society of the United States, Respondent.
    Argued January 12, 1981;
    decided February 24, 1981

      POINTS OF COUNSEL

      Eleanor R. Goldman and John B. Foley for appellant.
    I. Continental’s liability is limited .to claims originating prior to termination of the policy. (Standard Mar. Ins. Co. v Federal Ins. Co., 39 AD2d 444; Lieberman v National Cas. Co., 50 Misc 2d 1.) II. The Equitable policy insured all of Control Data’s employees from its effective date, and, by its terms, was responsible for any disabilities which occurred thereafter. (United States v Patryas, 303 US 341.) III. Where two policies each contain a provision allowing for a sharing of benefits where a claim can be presented under more than one group policy of insurance and, if these pror visions are considered, the sole responsibility for the many claimants will not be that of Continental Casualty Company. (Schloss v Fidelity Mut. Life Ins. Co., 193 Misc 121; Sassi v Jersey Trucking Serv., 283 App Div 73; Feltenstein v Travelers Ind. Co., 44 Misc 2d 999.)

      Michael W. Brody and Werner Weinstock for respondent.
    I. Disabilities for the same or related causes recurring within six months of a prior period of disability are a continuation of the prior period. (Lieberman v National Cas. Co., 50 Misc 2d 1; Continental Cas. Co. v Equitable Life Assur. Soc. of U. S., 96 Misc 2d 534.) II. The disability began before Equitable insured the risk; therefore, Continental is liable. (Wallach v Monarch Life Ins. Co., 74 Misc 2d 369.) III. Continental’s cases and points do not entitle it to judgment. (United States v Patryas, 303 US 341.)
   OPINION OF THE COURT

Jasen, J.

We are called upon to decide whether and to what extent each of two insurers is liable for a single risk. At issue is the potential responsibility of these insurers to make disability payments to certain employees of Control Data Corporation who originally became disabled while a policy of group disability insurance issued by plaintiff Continental Casualty Company was in force and who suffered a “recurrence” after the termination of plaintiff’s policy and during the term of a successor disability policy issued by defendant Equitable Life Assurance Society of the United States. The sole question before us is whether either or both of the insurance contracts in issue obligate the respective insurers to make payments for such “recurring” disabilities.

Continental Casualty Company (“Continental”), plaintiff in this declaratory judgment action, issued a group disability policy covering the employees of Control Data Corporation. The policy was effective July 1, 1975 and expired on June 30, 1976. Control Data Corporation replaced the expiring Continental policy with a policy issued by defendant Equitable Life Assurance Society of the United States (“Equitable”) which became effective on July 1, 1976. After this changeover occurred, a dispute arose between Continental and Equitable as to which insurer is responsible to pay the disability claims of employees who became disabled during the term of Continental’s policy, but who suffered a recurrence within six months of this prior disability after returning to work and after Equitable’s policy became effective. The substance of the dispute is, of course, that each of these litigants has, after a close examination of both of the insurance contracts in issue, come to the considered conclusion that only the other should pay.

Equitable premises its argument that only Continental should pay upon the following language in Continental’s policy which states:

“If a disability recurs as a result of the same or related cause or causes, it shall be deemed a continuation of the prior period of disability unless an intervening period of six months has elapsed in which event the subsequent period shall be deemed the result of a new sickness * * *

“Termination of the policy of an Insured Employee’s coverage for any reason shall be without prejudice to any claim originating prior to the date of termination.”

Equitable argues that this “recurrent disability” clause imposes the obligation of payment upon Continental because, as defendant reads the contract, such a “recurrent disability” is part of the initial period of disability for which Continental was concededly responsible and, therefore, all such claims must be paid by Continental as if there were no intervening period.

Continental, on the other hand, bases its assertion that Equitable should pay upon the following language in defendant’s policy, which states:

“B. Subject to the Exceptions stated in paragraph *C’ below:

“Each permanent full-time employee shall be eligible for insurance as of the later of July 1,1976 and the date of his commencement of continuous service with the Employer.

“C. Exceptions:

“1. Any employee who is not actively at work at the date he would otherwise become eligible for insurance hereunder shall not be eligible until he returns to active work.”

Continental notes that employees who had suffered a previous disability are not excluded from coverage and that absent such a specific exclusion, payments to such employees are the responsibility of Equitable.

Special Term, after examining the language of both policies, found that only Continental was responsible for payment and granted summary judgment to Equitable. The court noted that if there had been no successor policy Continental would have been responsible for all claims for disabilities which recurred within the six-month contractual period and concluded that if Continental were permitted to escape this liability, it would be given a “windfall”. Accordingly, the court declared that “plaintiff is required to pay all claims for disability benefits made after July 1,1976, by employees of Control Data Corporation previously covered by plaintiff’s policy who suffer a recurrent disability as a result of the same or related cause or causes as a prior disability which commenced before July 1, 1976, where the intervening period is less than six months.” The Appellate Division unanimously affirmed the judgment of Special Term, without opinion.

At the outset, we note our agreement with the courts below that Continental has, indeed, contractually obligated itself to make payments for “recurrent disabilities” and that to relieve it of such liability would result in a “windfall”. The courts below properly recognized that Continental would be liable if there were no successor insurance company. In addition, it would also seem evident that Equitable would have been liable had there been no predecessor insurance company.

The original Equitable policy issued on July 1, 1976 had no exclusion or limitation for disabilities based upon preexisting conditions. The only requirements were that the disability occur after the date the policy took effect and after the commencement of continuous service with the employer. It is significant that a later amended Equitable policy, issued January 1, 1977, expressly limited coverage to deny benefits for certain pre-existing conditions. However, even this limitation in the later policy by its terms was inapplicable to those employees who had been previously insured under Continental’s predecessor policy. Hence, it can be as easily said that if Equitable is relieved of its obligation to pay claims for recurrent disability, a “windfall” will result.

In our opinion, each of these two companies have contracted to insure against the same risk. Either or both of these insurers could fairly be made to pay all of the disability claims in issue. Having contracted to assume this liability, neither company should be heard to complain that the other is the more appropriate obligor. Thus, the result reached by the court below, imposing liability solely upon Continental, appears to us to be unsound, for it fails to take into account at all Equitable’s liability on the instant claims.

Although there is no case law directly in point insofar as disability insurance is concerned, we have, in cases involving liability insurance, held that where one or more insurers have assumed the same risk, each must contribute to the payment of the claim. (Cf. Federal Ins. Co. v Atlantic Nat. Ins. Co., 25 NY2d 71, 78.) In cases involving disability insurance, the extent of the contribution may be more difficult to determine. However, we believe a reading of the “private law” as set forth in the contracts of the parties herein supplies an appropriate measure of the contribution which should be required of each.

Both of the contracts in issue have clauses providing that the benefits payable under the contract are to be reduced by the amount of benefits payable under any other employer disability plan. Thus, each purports to pay only the “excess” over what the other has paid. Although we recognize that the analogy is imperfect, we believe that such “benefit reduction” clauses should be treated as canceling each other out in much the same way as the contracts of two liability insurers, each purporting to provide only “excess” insurance, are read together as providing for shared liability. (Cf. Lumbermen's Mut. Cas. Co. v Allstate Ins. Co., 51 NY2d 651, 655.) Thus, each insurer should share in-the payment of claims for “recurrent disability”. However, since the benefit provisions of the two contracts are not the same, the shares should not be precisely equal.

First, the Equitable policy provides for the existence of a “qualifying period” in which benefits are not payable. This period is 30 days in the Equitable policy effective from July 1, 1976 to January 1, 1977, and five months in the policy taking effect thereafter. This contractual limitation on Equitable’s liability must be respected. Hence, Continental must continue to be solely responsible for payment during the pendency of this “qualifying period”.

Second, the benefits payable to a given employee are not always the same under both contracts due to express limitations on the amount of benefits contained in the two contracts. Since the amounts payable would not be equal, the contributions of the two insurers should be apportioned accordingly. The contribution of each should be calculated in proportion to the amount of liability it contractually assumed.

This can be accomplished by first determining the amount which would be payable under each of the two contracts. Since either company would have been liable up to its own contractual limit but for the fortuitous existence of the other’s contract, the disabled employee should be entitled to receive the higher of the benefits payable under either of the two contracts. The employee receives only a single benefit, but it should be the highest benefit available under either of the policies in force. The contribution of each of the two insurers involved to the amount payable to any employee should then be determined by excluding as to each insurer benefits for the period in question of a type or in an amount not afforded by the other and then requiring that the common liability of both under their respective policies be shared in such proportion as the common coverage liability of each bears to the total common coverage liability of both. In this way, neither insurer will escape liability and receive a “windfall”, and neither will be saddled with the sole responsibility for claims which the other insurer is also contractually obligated to pay.

Accordingly, the order of the Appellate Division should be modified, to the extent of declaring that each of the parties herein should pay its share for the recurring disability benefits in issue as indicated above and the case should be remitted to Supreme Court, New York County, for a determination of the liability of each of the parties for the payment of individual claims for recurrent disability.

Chief Judge Cooke and Judges Gabrielli, Jones, Wachtler, Fuchsberg and Meyer concur.

Order modified, without costs, and case remitted to Supreme Court, New York County, for further proceedings in accordance with the opinion herein and, as so modified, affirmed.


author: Chief Judge Cooke.

text:
    In the Matter of Linda F. M., Appellant. Department of Health of the City of New York et al., Respondents.
    Argued January 12, 1981;
    decided February 24, 1981

      POINTS OF COUNSEL

      Martin Guggenheim for appellant.
    I. Appellant showed good cause to obtain access to her birth records as a matter of law. (Fox Film Corp. v Hirshman, 234 NY 55; Matter of Maxtone-Graham, 90 Misc 2d 107; Matter of Anonymous, 89 Misc 2d 132, 92 Misc 2d 224; Califano v Yamasaki, 442 US 682; Yesterday’s Children v Kennedy, 569 F2d 431.) II. The role of the Attorney-General in this case violated the rights of appellant. (Spevack v Klein, 385 US 511.) III. Section 114 of the Domestic Relations Law is unconstitutional both as applied and on its face. (Stanley v Illinois, 405 US 645; Meyer v Nebraska, 262 US 390; Skinner v Oklahoma, 316 US 535; May v Anderson, 345 US 528; Loving v Virginia, 388 US 1; Pierce v Society of Sisters, 268 US 510; Wisconsin v Yoder, 406 US 205; Griswold v Connecticut, 381 US 479; Roe v Wade, 410 US 113; Eisenstadt v Baird, 405 US 438.)

      Robert Abrams, Attorney-General (Charles Brody, Shirley Adelson Siegel and Jonathan J. Silbermann of counsel), for Attorney-General, respondent.
    I. Section 114 of the Domestic Relations Law is constitutional. (ALMA Soc. v Mellon, 459 F Supp 912, 601 F2d 1225, 444 US 995; Stanley v Georgia, 394 US 557; Poulos v New Hampshire, 345 US 395; Gotkin v Miller, 379 F Supp 859, 514 F2d 125; Moore v City of East Cleveland, 431 US 494; Roe v Wade, 410 US 113; People ex rel. Scarpetta v Spence-Chapin Adoption Serv., 28 NY2d 185, cert den sub nom. De Martino v Scarpetta, 404 US 805; Matter of Anonymous, 89 Misc 2d 132.) II. Appellant was not prejudiced by the Attorney-General’s participation in this proceeding. (Matter of Linda F. M., 92 Misc 2d 838; Matter of Maxtone-Graham, 90 Misc 2d 107; ALMA Soc. v Mellon, 601 F2d 1225; Mathews v Eldridge, 424 US 319.) III. The Surrogate’s decision is supported by substantial evidence. (Matter of City of New York [A. & W. Realty Cory.], 1 NY2d 428; Matter of Anonymous, 89 Misc 2d 132; Matter of Chattman [Bennett], 57 AD2d 618.)
   OPINION OF THE COURT

Chief Judge Cooke.

This appeal focuses on the circumstances under which adopted persons can later discover the identity of their natural parents by obtaining access to the sealed adoption records. Section 114 of the Domestic Relations Law provides that such disclosure shall be granted only for “good cause”. For the reasons that follow, the courts below were correct in concluding that petitioner here failed to meet this standard.

Petitioner was born on July 19, 1940, and was adopted on March 4, 1941 pursuant to an order of the Surrogate’s Court of Bronx County. She did not learn of her adoption until 1971. In 1977, after attempting without success to locate her natural parents by other means, petitioner began this proceeding to obtain access to her sealed adoption records. She alleged various psychological problems stemming from her ignorance of her background. After a hearing, the Surrogate found that petitioner had failed to establish good cause for unsealing the records. The Appellate Division affirmed for the reasons stated by the Surrogate.

Section 114 of the Domestic Relations Law places great emphasis on the confidential nature of adoption records. The section provides that they “shall be sealed and secret”. It prohibits anyone, including the adoptive parents’ attorney, from disclosing the child’s original surname to the adoptive parents. It authorizes punishment for contempt of court for certain breaches of confidentiality occurring in the handling of the records. The section permits access to the records only by court order “on good cause shown and on due notice to the adoptive parents and to such additional persons as the court may direct.”

This confidentiality serves several purposes. It shields the adopted child from possibly disturbing facts surrounding his or her birth and parentage, it permits the adoptive parents to develop a close relationship with the child free from interference or distraction, and it provides the natural parents with an anonymity that they may consider vital (People ex rel. Scarpetta v Spence-Chapin Adoption Serv., 28 NY2d 185,195, cert den sub nom. De Martino v Scarpetta, 404 US 805). The State’s interest in fostering an orderly and supervised system of adoptions is closely tied to these interests of the parties involved (Matter of Anonymous, 89 Misc 2d 132, 92 Misc 2d 224).

Although petitioner, now an adult, has obtained the approval of her adoptive mother for her attempt to gain access to the adoption records and her adoptive father is deceased, the natural parents retain a potentially strong interest in maintaining their anonymity. It thus is essential that petitioner make a showing of good cause. A natural parent understandably can feel deep effects when the records of an adoption are opened years after the child was surrendered for adoption. Although the sudden reappearance of the child may often be a source of great pleasure to the natural parent, in other cases it may be a destructive intrusion into the life that the parent has built in the years since the adoption. It may be the source of much discomfort. In some cases, it may even open the way for the child or others to blackmail the natural parents by threatening to disclose embarrassing circumstances surrounding the birth.

Petitioner alleges that her inability to discover the identity of her natural parents has caused psychological problems that have broken up a marriage and hampered development of her artistic and musical creativity. The courts below, however, found that any problems she had encountered in these areas were not credibly connected to her lack of knowledge of her natural parents’ identities. To the extent that she was troubled by her lack of knowledge, the courts found that this sprang from mere general curiosity about her parentage, rather than from a concrete and compelling need. The record amply supports these findings.

Petitioner herself summarized her reasons for wanting access to her records as a desire “[t]o know who I am. I feel cut off from the rest of humanity. I was given birth to the same way as everyone else, but everyone else can send away $3 and get a copy of their birth certificate. I want to know who I am. The only person in the world who looks like me is my son. I have no ancestry. Nothing.” A desire to learn about one’s ancestry should not be belittled. When balanced against the interests of other parties to the adoption process, however, it cannot alone constitute good cause under section 114. This is not to say that concrete psychological problems, if found by the court to be specifically connected to the lack of knowledge about ancestry, would never constitute good cause (see Matter of Anonymous, 92 Misc 2d 224, supra). By its very nature, good cause admits of no universal, black-letter definition. Whether it exists, and the extent of disclosure that is appropriate, must remain for the courts to decide on the facts of each case. Nevertheless, mere desire to learn the identity of one’s natural parents cannot alone constitute good cause, or the requirement of section 114 would become a nullity. Petitioner, therefore, has failed to meet the statutory prerequisite to gaining access to her records.

This appeal also raises the issue of whether notice of such a proceeding should also be given to the natural parents. Although the notice provision of section 114 specifically mentions only the adoptive parents, the interests of the natural parents dictate that notification be given if the court finds that the petitioner has made a showing of entitlement and provided that the natural parents can be located with reasonable effort and in a manner that will not be likely to be self-defeating by revealing their identities to the adoptive parents or others. Such notice provides the natural parents with an opportunity to intervene through a representative in the proceeding and defend their interest in retaining anonymity (cf. Matter of Anonymous, 89 Misc 2d 132, 92 Misc 2d 224, supra). Because this interest may not receive full articulation in their absence, it is important that those who may be vitally affected by disclosure be given a chance, if practical, to intervene. It is possible, of course, that such notice to the natural parents would not be practical. Such was the case in this proceeding, in which the Surrogate found on the record that it would be all but impossible to locate the natural parents by reasonable efforts and that other means of protecting their interests would suffice. The Surrogate’s decision to forgo notice in this case was therefore proper. Corresponding care must also be taken to protect the privacy interests of the adoptive parents.

Finally, petitioner’s claim that section 114 is unconstitutional is rejected (see Alma Soc. v Mellon, 601 F2d 1225, cert den 444 US 995).

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

Judges Jasen, Gabrielli, Jones, Wachtler, Fuchs-berg and Meyer concur.

Order affirmed.

      . Although the State’s first statute authorizing adoptions contained no provision for the sealing of adoption records (L 1873, ch 830), the Legislature in 1924 authorized courts to seal such records in their discretion. Once sealed, a showing of good cause was required for access (L 1924, ch 323). Since 1938, the sealing of such records has been mandatory, with access available only after a court determination of good cause (L 1938, ch 606).
      Today, only a relative handful of States permit access by adopted children to adoption records without some type of demonstration of need (see Note, Adult Adoptee’s Constitutional Right to Know His Origins, 48 So Cal L Rev 1196, 1199). The Uniform Adoption Act contains a good cause requirement similar to New York State’s statute (Uniform Adoption Act, § 16, subd [2]).

      . Where records are needed for a specific health-related purpose, a court may wish to consider permitting disclosure of relevant medical data in the records without revealing other material such as the identities of the natural parents (see, e.g., Matter of Chattman [Bennett], 57 AD2d 618).

      . Section 114 of the Domestic Relations Law provides in pertinent part: “No order for disclosure or access and inspection shall be granted except on good cause shown and on due notice to the adoptive parents and to such additional persons as the court may direct.”


author: Jones, J. Wachtler, J.

text:
    In the Matter of Hime, Y., a Child Alleged to be a Permanently Neglected Child. Jewish Child Care Association et al., Respondents; Elaine S. Y., Appellant.
    Argued January 6, 1981;
    decided February 24, 1981

      POINTS OF COUNSEL

      A. Isadore Eibel for appellant.
    I. A finding of the mother’s inability to care for her child because of mental illness does not authorize termination of parental rights without proof of such inability in the foreseeable future. (Matter of Corey L v Martin L, 45 NY2d 383; Matter of Leon RR, 48 NY2d 117; Matter of Sanjivini K., 47 NY2d 374; Matter of Goldman, 41 NY2d 894; Matter of Bennett v Jeffreys, 40 NY2d 543; Matter of Anonymous [St. Christopher’s Home], 40 NY2d 96.) II. The evaluation of the court below of the evidence is not supported by the record. (Matter of Leon RR, 48 NY2d 117; Matter of Irene O., 38 NY2d 776.)

      David H. Berman and Gerald E. Bodell for Jewish Child Care Association, respondent.
    I. Appellant was mentally ill within the purview of section 384-b of the Social Services Law, mandating permanent termination of her parental rights under the statute. II. Should this court reverse the finding of mental illness, it should make a finding of permanent neglect, or in the alternative, remand the matter to the court below to make such a finding or to consider the issue of permanent neglect on its own merits. (Matter of Orlando F., 40 NY2d 103; Matter of Karas, 59 AD2d 1022; Matter of Seith SS, 66 AD2d 914; Matter of Ray

      A. M., 37 NY2d 619; Matter of Joyce A. R., 52 AD2d 882; Matter of Stephen B., 60 Misc 2d 662, affd sub nom. Matter of Behrman, 34 AD2d 527; Matter of Clear, 65 Misc 2d 323.)

      Janet R. Fink and Charles Schinitsky for Steven Hiltz, Law Guardian.
    I. Clear and convincing evidence compels affirmance of the conclusion of the court below that appellant is presently and for the foreseeable future incapable, by reason of mental illness, of caring for her child. (Department of Social Servs., St. Lawrence County v Joan R, 61 AD2d 1108; Matter of Bradley U, 55 AD2d 722.) II. If this court reverses the finding of mental illness, the proceeding should be remanded for reconsideration of the cause of action alleging permanent neglect. (Matter of Stephen B. , 60 Misc 2d 662, affd sub nom. Matter of Behrman, 34 AD2d 527; Matter of James S., 98 Misc 2d 650; Matter of Orlando F., 40 NY2d 103; Matter of Diana S., 68 AD2d 915; Matter of Terry “D”, 53 AD2d 957; Matter of Orzo, 84 Misc 2d 482; Matter of Paul D’A., 56 AD2d 846; Matter of Ray A. M., 37 NY2d 619; Matter of Joyce A. R., 52 AD2d 882.)
   OPINION OF THE COURT

Jones, J.

In this proceeding to terminate parental rights the evidence in the record is not sufficient to support the finding by the Appellate Division that the mother, by reason of mental illness, is presently and for the foreseeable future unable to provide proper care for her child. Its order granting the petition on that ground must therefore be reversed and the matter remitted to that court to determine whether there was sufficient evidence of permanent neglect by the mother to support a termination of her parental rights for that reason — a question not passed on by the Appellate Division.

Approximately three weeks after her birth on March 10, 1975, Hime, the child who is the subject of this appeal, was placed with foster parents under the auspices of petitioner Jewish Child Care Association by the Commissioner of Social Services to whom the child had been remanded on a petition alleging neglect. During the course of various steps in the proceeding initiated by that petition Hime remained with her foster parents, and on July 22,1976 a petition was filed by the agency seeking termination of parental rights and requesting that guardianship be awarded to it with authority to consent to the child’s adoption. The petition sought relief both on the basis that the mother (appellant in our court) by reason of mental illness was unable then and for the foreseeable future to provide proper care for Hime and, alternatively, by reason of her permanent neglect in that she had failed for more than one year substantially and continuously or repeatedly to plan for the future of the child notwithstanding the agency’s diligent efforts to encourage and strengthen the parental relationship.

Following a fact-finding hearing on this petition (at the institution of which the prior neglect petition was dismissed) and a subsequent dispositional hearing Family Court concluded that neither of the bases for the relief requested had been established and dismissed the petition, awarding custody of Hime to the foster parents with liberal visitation rights to the mother. On cross appeals the Appellate Division unanimously modified the disposition by Family Court by granting the petition for termination of parental rights on the ground of the mother’s mental illness and remanding the matter to Family Court where, in execution of the Appellate Division’s mandate, an order was entered terminating the mother’s parental rights, awarding custody to the agency and the Commissioner of Social Services, and authorizing either to consent to a suitable adoption of Hime. Concluding that “Since the mother has been found ‘mentally ill’, it necessarily follows that she was not ‘physically able’ to plan for the future of the child (SSL § 384-b subd. 7 [a]) ”, the Appellate Division added, “Hence, the cause of action based upon ‘permanent neglect’ must be dismissed as academic.”

The mother now challenges the permanent termination of her parental relationship with her daughter by reason of her mental illness under section 384-b (subd 4, par [c]) of the Social Services Law. Because her challenge is well taken, the order of the Appellate Division must be reversed and the matter remitted to it for further consideration of the other branch of the initiating petition.

Section 384-b of the Social Services Law provides a procedure by which, for very serious reasons, parental relationships may be severed, the guardianship of a child may be committed to an authorized agency or foster parent, and adoption of the child may proceed without the consent of the natural parent. Among the grounds specified for such an order in subdivision 4 are: “(c) The parent or parents, whose consent to the adoption of the child would otherwise be required in accordance with section one hundred eleven of the domestic relations law, are presently and for the foreseeable future unable, by reason of mental illness * * * to provide proper and adequate care for a child who has been in the care of an authorized agency for the period of one year immediately prior to the initiation of the proceeding under this section; or (d) The child is a permanently neglected child.” Both of these grounds were tendered by the agency in this proceeding as predicates for the desired order ending appellant mother’s relationship with Hime.

We turn first to the ground of mental illness, on which the Appellate Division founded its disposition. In addition to defining what is mental illness for the purpose of the section, the statute also prescribes certain procedural requirements to assist the court in determining whether the defined condition exists. Thus, paragraph (g) of subdivision 3 provides that any finding of mental illness must be based upon clear and convincing proof. Paragraph (e) of subdivision 6 mandates that, in the case of a parent alleged to be mentally ill, the Judge shall order the parent to be examined by a court-appointed psychiatrist and shall take the testimony of such psychiatrist, and paragraph (c) of the same subdivision prohibits a determination of the legal sufficiency of the proof until such testimony has been taken by the Judge., Notably, the language of the two paragraphs of subdivision 6 is not specific with respect to the scope of the psychiatric testimony which must be received — i.e., whether the expert’s testimony is sufficient if directed only to the existence of the condition (mental illness) or whether it must also address the consequence of the condition (inability at the time of the hearing and for the foreseeable future to provide proper and adequate care for the child). It may be argued that whether the mental illness is such as to render the mother unable presently and for the foreseeable future to care for her child is a proper subject for expert testimony. In any event an expression of opinion with respect thereto by the court-appointed, examining psychiatrist would augment the evidence on which the court ultimately must reach its conclusion whether the issuance of an order pursuant to section 384-b is warranted.

In the present case the Family Court had before it not only testimony of the court-designated psychiatrist, Dr. Kessel, but also that of the agency caseworker who had regularly been present on the monthly occasions when the mother visited with Hime and who described for the court the behavior of the mother at the time of the visits, as well as extensive psychiatric hospital records and evaluations performed by the Family Court Mental Health Service, virtually all of which were supportive of a conclusion that the mother had been and at the present time was unable, by reason of mental illness, to provide proper care for Hime. Thus, there can be no doubt as to the sufficiency of the evidence to support the Appellate Division’s finding of present inability of the natural mother by reason of mental illness to care for her child.

With respect to the prospect “for the foreseeable future”, however, the same is not so. In fact, quite the contrary might be said. When asked by the court to express an opinion as to the mother’s capacity to care for her child, Dr. Kessel repeatedly spoke only of present inability. He stated variously, “I do feel your Honor that it was entirely possible that since she has shown improvement over the previous psychiatric evaluations that at a future date she might be able to take care of the children”, “I mean given the factors that I have had to take into consideration on the possibilities you mentioned of ongoing treatment and true involvement in that and on medication I think it is a good possibility she could care for the child”, “I think that remaining in remission and given therapeutic support that she might very well be able to rear the child”.

In sharp contrast, no professional opinion was offered that the mother would be unable for the foreseeable future properly to care for Hime. Any conclusion that that is the case would have to be predicated on inferences as to the mother’s future mental condition and inability drawn from her past and present condition and behavior. While it may be that the evidence in some cases of past and present condition would be of such character and sufficient probative worth to warrant an inference as to future inability even in the absence of professional opinion evidence as to future incapacity of the parent, such inferences alone cannot serve as the clear and convincing proof required for termination of the parental relationship in the present case in face of the considered opinion expressed by the court-appointed psychiatrist that the mother might well be able at some future, though now undeterminable, time through therapy and medication properly to care for Hime. Accordingly, the finding of the Appellate Division with respect to the mother’s future inability to care for her child must be vacated.

We turn then to the second aspect of this case — the attempt by the agency to obtain termination of the mother’s rights by reason of her alleged permanent neglect of the child. Family Court rejected this effort, concluding that the proof had not been sufficient to establish permanent neglect justifying the relief sought. The Appellate Division, treating examination of the mother’s conduct with respect to performance of the duty to “plan for the future of the child” within the definition of a “permanently neglected child” (Social Services Law, § 384-b, subd 7, par [a]) as an academic exercise because it concluded that by reason of her mental illness the mother was not “physically” able to plan (and thus was excused from planning), did not reach this issue.

In this case there was no claim that Hime was a permanently neglected child under section 384-b (subd 7, par [a]) by reason of a failure by her mother to maintain contact with her. There was ample evidence of regular visits with the child over the extended period when she was in foster care. It was the agency’s position however that the mother had failed to “plan for the future of the child, although physically and financially able to do so”, and that such failure constituted a basis for a finding of permanent neglect (Matter of Orlando F., 40 NY2d 103, 110). The Appellate Division should now consider whether the evidence of record was sufficient to sustain that contention. Nothing in the statutory definition of a permanently neglected child refers to “mental illness” of the parent; the only stated qualifications for the requirement of planning for the child’s future are that the parent be “physically and financially” able to do so. We do not read the language as encompassing mental condition or status, nor do we, as did the Appellate Division, equate mental and physical capacity. (Contra Matter of James S., 98 Misc 2d 650.) Indeed, it may be contended that most natural mothers who fail to plan for their own children are subject to some form of mental disturbance; if mental inadequacy were to be considered an acceptable excuse for failure to plan the scope of the statutory provision would be narrowed to a point of near practical uselessness. Mental illness of a parent as a basis for terminating parental rights is treated specifically and in detail in other subdivisions of section 384-b; if it had been the legislative intention that mental illness was also to serve as an excuse for a failure to plan for the child’s future it could easily have been so provided in paragraph (a) of subdivision 7. That it was not, in face of other provisions treating the condition, leads us to conclude that the statute is to be literally applied, and that mental illness does not, ipso facto, establish physical disability exonerating a parent from the obligation to plan for her child.

Accordingly, the order of the Appellate Division should be reversed, with costs, and the case remitted to that court for further proceedings in conformity with this opinion.

Wachtler, J.

(dissenting). The order of the Appellate Division should be affirmed.

There is no doubt that the appellant suffers from a serious and apparently dangerous mental disorder which makes her presently unfit to raise her child. In fact, because of this condition she has never been able to care for the child who, as a result of court orders, had been placed with foster parents soon after her birth. Indeed, appellant has suffered from this condition for many years prior to the child’s birth; she has been committed on several occasions, sometimes due to her treatment of her children, with continuous treatment but only slight and intermittent improvement. Thus the record convincingly shows that this is a long-standing and persistent mental disorder which has proven resistant to successful treatment in the past, is presently uncorrected, and will in all likelihood continue in the future at least during the child’s formative years.

Nevertheless because an expert witness entertained a vague possibility of unprecedented recovery in the unforeseeable future, the court has held that the child must remain in legal limbo. She cannot now be safely returned to her mother, may never be, and cannot be assured a permanent home with her foster parents. Concededly the statute does not attach such significance to the opinions of experts. Although the Legislature has provided for psychiatric evaluation of the parent (Social Services Law, § 384-b, subd 6, par [e]), the court’s power to grant relief is not conditioned upon the ability of the court or the petitioner to find an expert who can give a definitive opinion of mental unfitness now and in the foreseeable future. Considering the traditional reluctance of candid experts to offer opinions without some reservation, it is understandable that the Legislature would not impose such an unrealistic requirement as a prerequisite.

In sum the statutory goal of providing permanent homes for children whose parents’ mental condition renders them unfit to raise them now or in the foreseeable future (Social Services Law, § 384-b, subd 4) should not be frustrated simply because an expert witness suggests a vague possibility that the parent might at some date in the future, perhaps the distant future, recover from an illness that has resisted treatment throughout the child’s life, and long before the child was born.

Chief Judge Cooke and Judges Jasen, Gabrielli and Meyer concur with Judge Jones; Judge Wachtler dissents and votes to affirm in a separate opinion in which Judge Fuchsberg concurs.

Order reversed, with costs, and matter remitted to the Appellate Division, First Department, for further proceedings in accordance with the opinion herein.

      . Although both the mother’s husband and the person identified by her as Hime’s father were given notice of the proceeding neither appeared nor participated.

      . Paragraph (a) of subdivision 6 of section 384-b provides: “For the purposes of this section, ‘mental illness’ means an affliction with a mental disease or mental condition which is manifested by a disorder or disturbance in behavior, feeling, thinking or judgment to such an extent that if such child were placed in or returned to the custody of the parent, the child would be in danger of becoming a neglected child as defined in the family court act.”

      . The mother has a second, older child, Suzanne, who is not the subject of the proceeding before us. There has, however, been extensive litigation involving termination of the parental relationship with that child in which the most recent order was an order of the Appellate Division, First Department, granted February 3, 1981, directing termination.

      . Section 384-b (subd 7, par [a]) of the Social Services Law provides in part: “For the purposes of this section, ‘permanently neglected child’ shall mean a child who is in the care of an authorized agency and whose parent or custodian has failed for a period of more than one year following the date such child came into the care of an authorized agency substantially and continuously or repeatedly to maintain contact with or plan for the future of the child, although physically and financially able to do so, notwithstanding the agency’s diligent efforts to encourage and strengthen the parental relationship when such efforts will not be detrimental to the best interests of the child.” Paragraph (c) of the same subdivision provides: “As used in paragraph (a) of this subdivision, ‘to plan for the future of the child’ shall mean to take such steps as may be necessary to provide an adequate, stable home and parental care for the child within a period of time which is reasonable under the financial circumstances available to the parent. The plan must be realistic and feasible, and good faith effort shall not, of itself, be determinative. In determining whether a parent has planned for the future of the child, the court may consider the failure of the parent to utilize medical, psychiatric, psychological and other social and rehabilitative services and material resources made available to such parent.”

      . It may not be without significance that by explicit provision of the statute, the parent’s use of drugs or alcohol (which might be said at least in some instances to impair the ability to plan for the future of the child) shall not excuse from the obligation to plan “except while the parent is actually hospitalized or institutionalized therefor” (Social Services Law, § 384-b, subd 7, par [d],cl [il).


author: Meyer, J.

text:
    Orange and Rockland Utilities, Inc., et al., Appellants-Respondents, v Philwold Estates, Inc., et al., Defendants, and Benjamin I. Wechsler, Respondent-Appellant.
    Argued January 15, 1981;
    decided February 24, 1981

      POINTS OF COUNSEL

      Alfred E. Froh for appellants-respondents.
    I. The restrictive covenant expired upon the death of Bradford. (Bernardine v City of New York, 294 NY 361; De Mayo v Yates Realty Corp., 35 AD2d 700, 28 NY2d 894; Huggins v Castle Estates, 36 NY2d 427; Single v Whitmore, 307 NY 575; Silverstein v Shell Oil Co., 40 AD2d 34, 33 NY2d 950; Booth v Knipe, 225 NY 390; Equitable Life Assur. Soc. of U. S. v Brennan, 148 NY 661; Findley Lake Prop. Owners v Town of Mina, 31 Misc 2d 356.) II. The covenant, if found to be still effective, should have been extinguished upon payment of damages, if any, established on trial. (Frey Realty Co. v Ten West 46th St. Corp., 285 App Div 932; Amerman v Deane, 132 NY 355; Lacov v Ocean Ave. Bldg. Corp., 257 NY 362; Rector, Churchwardens & Vestrymen of St. Stephen’s Prot. Episcopal Church of City of N. Y. v Rector, Churchwardens & Vestrymen of Church of Transfiguration in City of N. Y., 130 App Div 166, 201 NY 1; Heyert v Orange & Rockland Utilities, 17 NY2d 352; Acme Theatres v State of New York, 26 NY2d 385; County of Columbia v Ostrander, 33 AD2d 973; New York State Elec. & Gas Corp. v Tompkins, 29 AD2d 576.)

      Stephen L. Oppenheim for respondent-appellant.
    I. The purpose of the restriction was to insure Bradford’s undisturbed dominion of the west bank lands, subject only to a hydroelectric use which would minimally affect Bradford’s use and possession. (Post v Weil, 115 NY 361.) II. The equities favor defendant Wechsler. (Hodge v Sloan, 107 NY 244; Banach v Home Gas Co., 12 AD2d 373; Mohonk Trust v Board of Assessors of Town of Gardiner, 47 NY2d 476; Matter of North Manursing Wildlife Sanctuary, 48 NY2d 135.) III. Conveyances of land for specific purposes are legal in this State and not contrary to public policy. (Huggins v Castle Estates, 36 NY2d 427; Story v New York El. R. R. Co., 90 NY 122; Sargent v Brunner Housing Corp., 52 Misc 2d 623; Koff v Frank, 22 Misc 2d 551; Hunter v Trustees of Sandy Hill, 6 Hill 407; Beth Israel Hosp. Assn. v Moses, 275 NY 209; Hills v Miller, 3 Paige 254; Phoenix Ins. Co. v Continental Ins. Co., 87 NY 400; People ex rel. Poor v O’Donnel, 139 App Div 83, 200 NY 519; Matter of City of New York [Public Beach], 269 NY 64.) IV. The hydroelectric restriction is not unenforceable as against public policy. (Huggins v Castle Estates, 36 NY2d 427; Weil v Atlantic Beach Holding Corp., 1 NY2d 20; Civic Assn. at Roslyn Country Club v Levitt & Sons, 7 NY2d 894; Premium Point Park Assn. v Polar Bar, 306 NY 507; Silverstein v Shell Oil Co., 40 AD2d 34.) V. Plaintiffs are not entitled to relief under section 1951 of the Real Property Actions and Proceedings Law. (Trustees of Columbia Coll. v Thacher, 87 NY 311; Rowland v Miller, 139 NY 93; Evangelical Lutheran Church of Ascension of Snyder v Sahlem, 254 NY 161; Mohawk Containers v Hancock, 43 Misc 2d 716; Cilberti v Angilletta, 61 Misc 2d 13; Normus Realty Corp. v Disque, 20 AD2d 277, 16 NY2d 912; Congregation Khal Chasidim of Brooklyn v Congregation Beth El of Borough Park, 19 AD2d 622; Ginsberg v Yeshiva of Ear Rockaway, 74 Misc 2d 391, 45 AD2d 334, 36 NY2d 706; Cummins v Colgate Props. Corp., 2 Misc 2d 301, 2 AD2d 749; 111 Bloomingdale Realty Corp. v Town of Oyster Bay, 53 AD2d 604.) VI. Development of these lands for real estate subdivision is a real, present danger if the hydroelectric restriction is removed. VII This action cannot be turned into a private condemnation action by the payment of damages. VIII. Plaintiffs’ claim is barred by the Statute of Limitations. (Rector, Churchwardens & Vestrymen of St. Stephen’s Prot. Episcopal Church of City of N. Y. v Rector, Churchwardens & Vestrymen of Church of Transfiguration in City of N. Y., 201 NY 1; Sanders v Saxton, 182 NY 477; Miner v Beekman, 50 NY 337; Greenberg v Schwartz, 273 App Div 814; Schoener v Lissauer, 107 NY 111; Ford v Clendenin, 215 NY 10; Exhorn v Exhorn, 1 App Div 124; Gifford v Whittemore, 4 AD 2d 379.) IX. Plaintiffs’ claim is barred by laches. (Pollitz v Wabash R. R. Co., 207 NY 113; Schreier v Cummings, 250 App Div 808; Battlefields, Inc. v County Legislature of County of Rockland, 86 Misc 2d 181; Coit v Campbell, 82 NY 509; Fuchs & Lang Sun Chem. de Venezuela, C. A. v

      Schenectady Chems., 43 AD2d 881; Mohawk Containers v Hancock, 43 Misc 2d 716; Trustees of Columbia Coll. v Thacher, 87 NY 311; Matter of Barabash, 31 NY2d 76; Matter of Lord, 78 NY 109; Stevenson v Stevenson, 32 AD2d 675.) X. The hydroelectric restriction runs with the land and is enforceable by defendant Wechsler whether or not it was originally personal to Bradford. (Post v Weil, 115 NY 361; Passaic Val. Council Boy Scouts of Amer. v Hartwood Syndicate, 75 Misc 2d 1018, 46 AD2d 247, 39 NY2d 1022; Weigold v Bates, 144 Misc 395; Korn v Campbell, 192 NY 490; Equitable Life Assur. Soc. of U. S. v Brennan, 148 NY 661; Levy v Blue Ridge Constr. Co., 74 Misc 2d 676; Neponsit Prop. Owners’ Assn. v Emigrant Ind. Sav. Bank, 278 NY 248; Wilson v Ford, 209 NY 186; Whitney v Richardson, 59 Hun 601.) XI. If the order appealed from is otherwise correct, it properly reserved the question of damages. (Trustees of Columbia Coll. v Thacher, 87 NY 311.)
   OPINION OF THE COURT

Meyer, J.

Interpreted in light of the setting in which imposed and the language used, the restrictive covenant in plaintiffs’ predecessor’s deed limiting use of its land to erection of a hydroelectric plant ran with the land as to both benefit and burden. Because that covenant renders the land wholly useless under present circumstances, plaintiffs are however, entitled to judgment extinguishing the covenant pursuant to section 1951 of the Real Property Actions and Proceedings Law. Damage to the dominant land not having been shown, the judgment of extinguishment properly awarded defendant no damages. However, the judgment improperly reserved for future determination the issue of damages to an easement over the servient land also held by the owner of the dominant land. Plaintiffs have not sought extinguishment of the easement and defendant, as easement owner, as distinct from landowner, is not entitled to damages for extinguishment of the restrictive covenant. The order of the Appellate Division should, therefore, be modified by deleting therefrom so much thereof as preserved the right of defendant hereafter to seek damages for extinguishment of the covenant. As so modified, the order should be affirmed.

William Bradford originally owned land on both sides of the Neversink River in Sullivan County. In 1923 he sold the east bank land to Alfred J. Crane, retaining for himself exclusive hunting and fishing rights over it. At the same time he sold part of the west bank land to Crane under a deed restricting its use “by [Crane] his heirs, executors and assigns solely for the erection of Hydroelectric and generating plants and appurtenances, transmission lines, dams, penstocks, conduits or other structures appurtenant to the proper development and utilization of the water power of the portion of the Neversink River and Bushkill Creek above described or other water power uses and purposes, including houses for employees” but reserved to himself exclusive hunting and fishing rights over that part of the west bank land conveyed. In 1927 Crane conveyed the restricted property, subject to the covenant, to Rockland Light and Power Company, now known as Orange and Rockland Utilities, Inc. That company and Clove Development Corporation, its wholly owned subsidiary which now holds title to the west bank property originally deeded to Crane, are the plaintiffs in this action.

Bradford continued to hold the remaining west bank land, contiguous to the restricted parcel transferred to Crane. Bradford died in 1934 and in 1940 that property was conveyed by his successors in interest, ultimately coming to be held by Philwold Estates, Inc. Philwold Estates, Inc., was owned by Philwold Company, a partnership in which defendant Wechsler had an interest. In 1968 Wechsler withdrew from the partnership receiving for his interest in that company 2,325 acres of the west bank land that had been held by Philwold Estates, Inc., together with the hunting and fishing rights in the land deeded by Bradford to Crane which Bradford had reserved.

Plaintiffs’ complaint seeks judgment declaring that the restrictive covenant was personal to Bradford and, therefore, is not enforceable by the successors to Bradford’s other real property, or in the alternative that the restrictive covenant be extinguished pursuant to section 1951 of the Real Property Actions and Proceedings Law. Special Term dismissed the action, without reaching the merits, holding it barred by limitations and rejecting plaintiffs’ argument that the statute was tolled because plaintiffs had possession and undisputed title to the property.

The Statute of Limitations defense was, however, swept aside by the Appellate Division because plaintiffs’ title to the property was unchallenged, the dispute involving only the enforceability of the restrictive covenant. The court held that the covenant ran with the land and was, therefore, enforceable by defendant, but concluded that it should be extinguished because it found, for reasons hereafter detailed, that the covenant currently serves no purpose and renders plaintiffs’ land valueless. Concluding that defendant had failed to prove any damage resulting from the extinguishment of the easement, the Appellate Division awarded no damages, but provided that defendant could seek damages for any injury to his land which might occur in the future as a result of the extinguishment of the restrictive covenant.

We agree (1) that the action is not barred by limitations or laches, (2) that the benefit as well as the burden of the covenant runs with the land, (3) that the Appellate Division properly concluded that the covenant should be extinguished pursuant to section 1951 of the Real Property Actions and Proceedings Law, and (4) that defendant’s proof did not entitle him to damages for ex-tinguishment of the covenant. We disagree, however, with the Appellate Division’s reservation to defendant of the right to seek future damages as a result of the extinguishment of the covenant and conclude that, the hunting and fishing easement not being involved in this action, the only-right that defendant Wechsler retains is to enforce such easement rights as he has should there be a future interference with his reasonable enjoyment of the easement,

I

Plaintiffs, as record owners of the property subject to the restriction, seek removal of the restriction either because it was personal to Bradford and did not accrue to later titleholders of the dominant land or because, if it did, circumstances are now such as to permit them to invoke the extinguishment provisions of section 1951 of the Real Property Actions and Proceedings Law. The restriction, as distinct from the hunting and fishing easement which is not involved in this action, gave neither Bradford nor any successor in title of his any right to go upon the servient or restricted land. At best it entitled him or them to enjoin plaintiffs from using the restricted land for a purpose outside the scope of the restriction.

Plaintiffs, as the holder of legal title, were presumptively entitled to possession (see RPAPL, § 311) and with respect to one in defendant’s position, who neither claims nor exercises any possessory right to the land, should be treated no differently as to limitations than one who is actually in possession. Considered in this light, removal of the restriction is no different than removal of a cloud on title, as to which the law is well settled that the “right is never barred by the Statute of Limitations. It is a continuing right which exists as long as there is an occasion for its exercise” (Ford v Clendenin, 215 NY 10, 16; see Gifford v Whittemore, 4 AD2d 379, 385). The purpose of a Statute of Limitations is to put an end to stale claims, not to compel resort to the courts to vindicate rights which have not been and might never be called into question. The requirement of prompt action is imposed as a policy matter upon persons who would challenge title to property rather than those who seek to quiet title to their land. Accordingly, we conclude, as did the Appellate Division, that neither aspect of the action is time barred. We agree also, for the reason stated by the Appellate Division, that laches could not bar the action.

II

Whether a covenant restricting real property is personal or runs with the land depends on three factors: (1) whether the parties intended its burden to attach to the servient parcel and its benefit to run with the dominant estate, (2) whether the covenant touches and concerns the land, and (3) whether there is privity of estate (Neponsit Prop. Owners’ Assn. v Emigrant Ind. Sav. Bank, 278 NY 248, 255). Applying those tests we agree, though the question is not entirely free from doubt, with the Appellate Division’s conclusion that the covenant under consideration ran with the land.

There is little question that the parties to the 1923 conveyance intended that the burden of the restriction run with the land; the deed of conveyance expressly binds Crane, and “his heirs, executors, and assigns.” Defendant argues, however, that the deed did not expressly state that the covenant was to be enforceable by Bradford’s successors and assigns and that Bradford died in 1934. The rule in this State has long been that it is not “essential that the assignees of the covenantor should be named or referred to” (Hodge v Sloan, 107 NY 244, 251) and that there is a presumption that the insertion of a restriction “was for the purpose of protecting rights, which the grantor had in adjacent property” (Post v Weil, 115 NY 361, 372). As Professor Powell suggests (5 Powell, Property, par 673, at p 169), among the factors favoring a finding that the benefit was intended to run are (1) retention of adjacent land by the promisee-grantor and (2) the fact that the covenant benefits the retained land or renders it more valuable. Here Bradford did retain adjacent property on the west bank of the Neversink River. The covenant can also be considered beneficial to Bradford’s retained land in that Bradford precluded the possibility of objectionable uses on adjacent property. Finally, the very fact that Bradford retained for himself and his successors the right to hunt and fish on the burdened property suggests that the parties intended that the property remain unspoiled to protect these rights. Thus, the terms of the conveyance indicate that the parties intended that both the burden and the benefit of the covenant would run with the land.

The second requirement is that the covenant must “touch” or “concern” the land if it is to run with the land (Neponsit Prop. Owners’ Assn. v Emigrant Ind. Sav. Bank, supra, at p 255). This covenant touches or concerns the land because it directly affects the uses to which the land may be put and substantially affects its value (see id., at pp 258-260; 5 Powell, Property, par 675, at pp 182-183).

The final requirement is that there be privity of estate between the owner of the burdened property and the party seeking- to enforce the covenant. The concept of privity of estate has been traced to the nonassignability of choses in action at early common law, which necessitated the search for a special relationship between the parties to the covenant if the burden and benefit were to devolve to successors (5 Powell, Property, par 674, at p 172). Originally developed in actions at law, the privity concept required the existence of a tenurial relationship between the parties to the covenant, such as that existent between landlord and tenant or life tenant and remainderman (see, e.g., Spencer’s Case, 5 Coke Rep 16a; 5 Powell, Property, par 674, at p 172). However, in Keppell v Bailey (2 My & K 517) it was held that the running of burdens as between owners in fee was a violation of the public policy against encumbering the land barring actions at law. Eventually the concept of privity of estate took on a different meaning and now the party seeking to enforce the covenant need show only that he held property descendant from the promisee which benefited from the covenant and that the owner of the servient parcel acquired it with notice of the covenant (see Neponsit Prop. Owners’ Assn. v Emigrant Ind. Sav. Bank, supra, at p 261).

In the case at bar, defendant Wechsler holds west bank property descendant from Bradford and consequently he has sufficient privity of estate to entitle him to enforce the restrictive covenant. Accordingly, so much of plaintiffs’ action as seeks a declaration that the restrictive covenant was personal to Bradford and did not pass to defendant Wechsler is without merit.

Ill

Subdivision 2 of section 1951 of the Real Property Actions and Proceedings Law authorizes a court in any action seeking relief against a restrictive covenant or a declaration with respect to its enforceability to cause its extinguishment “if the court shall find that the restriction is of no actual and substantial benefit to the persons seeking its enforcement or seeking a declaration or determination of its enforceability, either because the purpose of the restriction has already been accomplished or, by reason of changed conditions or other cause, its purpose is not capable of accomplishment, or for any other reason” but requires payment to the party who would otherwise be entitled to enforcement of the covenant of such damages as he will sustain from its extinguishment.

Plaintiffs point out that in 1940 while the servient parcel was held by Rockland Light and Power Company, the City of New York condemned all of Rockland’s riparian rights in the Neversink River, that plaintiffs no longer have the right to use the servient parcel for hydroelectric purposes, and that as presently restricted, the land can be used for nothing else.

Defendant Wechsler argues, however, that the statute empowers a court to extinguish a restrictive covenant only when it no longer has value to the person who seeks to enforce it and that the restrictive covenant has value to him because it enhances his hunting and fishing rights and keeps the property near to his unspoiled. That the land can no longer be used for hydroelectric purposes does not, according to defendant Wechsler, diminish the value to him of the restrictive covenant.

The background of the statute is set forth in the 1958 Report of the Law Revision Commission which includes its Recommendation to the Legislature Relating to Recording, Extinguishment and Modification of Certain Restrictions on the Use of Land (NY Legis Doc, 1958, No. 65, at p 211). That report makes clear that restrictive covenants were intended to be subjected to the doctrine of relative hardship (at p 235), that “the public interest in the marketability and full utilization of land requires that there be available to owners of parcels burdened with” outmoded restrictions an “economical and efficient means of getting rid of them” (at p 254), that restrictions that “purport to prohibit virtually any use whatever * * * would be void on the ground that they were repugnant to the estate granted, or contrary to public policy, or unreasonable” but that few restrictions were of such drastic nature (atp 255), that New York courts for many years had applied the doctrine of balancing interests to nonforfeiture covenants, refusing injunctive relief and in some cases granting damages instead (at pp 263-266), but that there was need for an extinguishment statute because of procedural and other difficulties that would otherwise be encountered by landowners subject to restriction (at pp 235, 264,270, 317-318).

Section 1951, which as adopted is in the exact words recommended by the Law Revision Commission, must be construed in light of that legislative history. So construed, we agree that the restriction in issue was properly extinguished.

Foremost in the factors to be considered is the fact that if the covenant is enforced there is no use whatsoever to which the restricted land can be put by plaintiffs, for the restriction limits them to one single use and that use is, by reason of the city’s condemnation, impossible. Plaintiffs would thus be required to maintain the land in such manner as to avoid liability for injury to the users of it under the hunting and fishing easement and pay taxes on it but could make no other use of it. Bearing in mind that, as the Law Revision Report suggests, such drastic limitation may well be void as against public policy and that both the background of the statute and its wording (“by reason of changed conditions or other cause, its purpose is not capable of accomplishment, or for any other reason” [emphasis supplied] ) we have no hesitancy in concluding that the impossibility of constructing a hydroelectric plant (the building of which, though not required by the express wording of the conveyance to Crane, was practically compelled by the restriction imposed and was clearly in the contemplation of the parties to the grant creating the restriction) was sufficient to trigger the power of extinguishment, if on balance that appeared to be the equitable course.

Nor do we find any error of law in the Appellate Division’s conclusion that on balance the restriction should be extinguished. The issue is not whether Wechsler obtains any benefit from the existence of the restriction but whether in a balancing of equities it can be said to be, in the wording of the statute, “of no actual and substantial benefit” (emphasis supplied). Defendant Wechsler argues that the value of both his remaining land and his hunting and fishing easement are enhanced if plaintiffs’ property is kept in unspoiled condition. As to the land, Wechsler presented general opinion evidence indicating that its value would be enhanced, but nothing from which the importance or substantiality of that benefit could be measured, nor any dollars and cents proof by which it could be quantified. Measured against the burden to plaintiffs of maintaining land of which no use can be made, we cannot say that the Appellate Division erred in concluding that enhancement in value of the remaining land was not substantial.

With respect to the value enhancement of Wechsler’s hunting and fishing rights, the simple answer is that they have not been affected by this proceeding in any way that the law should recognize. Wechsler retains those rights and he or his successors in title will be entitled should there be an interference with the reasonable enjoyment of the easement to take legal action to enjoin or obtain damages for the interference, or both (see Bakeman v Talbot, 31 NY 366). Though conceptually the easement rights may bring a higher price (assuming them to be salable) with the restriction in existence than without it, it cannot be said to be an error of law for the Appellate Division to have concluded (the more particularly so in the absence of proof in dollars and cents terms of the difference in value) that, since Wechsler continues to hold them and the right to enforce them without actual diminution, the theoretical diminution was not such a substantial benefit as to stand in the way of judgment of extinguishment.

IV

What has been said so far suggests the conclusion as to damages.

A.

Defendant was afforded an opportunity to offer proof as to the damages he would suffer as a result of the extinguishment of the restrictive covenant, but, as already noted, failed to establish damages in quantifiable terms to his remaining land from the extinguishment of the restriction.

What the statute contemplates is an award of “the sum of money, if any, to which they [owners of the benefited land] are entitled in exchange for a complete extinction of the restrictions” (1958 Report of NY Law Rev Comm, at p 269), inclusive of both damages up to the time of trial and damages in the future. (id., at p 266). Having failed to avail himself of the opportunity, defendant is barred from seeking damages in the future for injury to his real property. It was, therefore, proper to deny a present damage award but error to reserve to defendant the right to bring an action in the future seeking such damages.

B.

As noted above, however, defendant retains the hunting and fishing rights to which the easement entitles him. Should plaintiffs or some future holder of the land subject to the easement interfere with those rights in the future, Wechsler or his successors in interest to the easement will have the right to bring an appropriate action as he or they may be then advised.

The order appealed from should, accordingly, be modified as above indicated, and, as so modified, should be affirmed, with costs.

Chief Judge Cooke and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur.

Order modified, with costs to Orange and Rockland Utilities, Inc., in accordance with the opinion herein and, as so modified, affirmed.

      . Of course, that deletion will not affect defendant’s right to take such action as he deems proper to enforce his easement, should plaintiffs or any successor of plaintiffs use the land subject to the easement in such a way as to interfere with the reasonable enjoyment of it by defendant or his successors, but that right, if he has it, arises from the easement and exists, if at all, independently of the judgment in this action. Since the present action does not seek to extinguish the easement, we express no opinion as to its validity or enforceability.

      . Estates conveyed a part of its land to Federation of Jewish Philanthropies, but it is unnecessary to consider the rights of the latter since it received no part of the reserved rights and in any event has conveyed its interest in the reservation to plaintiff Clove Development Corporation.

      . Plaintiffs suggest that the hydroelectric use is hardly ideal for purposes of protecting the fishing right, but the fact remains that it is better than many other conveivable uses and keeps the burdened property relatively unspoiled.