author: Burke, J.

text:
    In the Matter of Sipal Realty Corporation, Appellant. Martin L. Dankers et al., Respondents.
    Argued October 4, 1960;
    decided October 21, 1960.

      Barney B. Fensterstock and Frederick B. Sussmann for appellant.
    I. The Appellate Division erred in holding that section 13 orders were prerequisite to landlord’s right to relief. (Matter of McGrath [Bass], 186 Misc. 27; Kristel v. Steinberg, 188 Misc. 500; Tursi v. Esposito, 194 Misc. 498; Kozlowski v. Krzysko, 205 Misc. 190; Colman v. Kinsella, 2 Misc 2d 1054; Irmisch v. Kaplan, 206 Misc. 336; Nass v. Christ, 15 Misc 2d 76.) II. The emergency, business rent fixed in the final order was properly made retroactive. III. Even if this court should uphold the Appellate Division’s reversal, a new trial rather than a dismissal of the petition should be ordered. (Eisenberg v. City of New York, 285 App. Div. 831; Mandelino v. Great Atlantic & Pacific Tea Co., 276 App. Div. 850; Bloom v. Selglo

      Corp., 274 App. Div. 505; Levy v. Louvre Realty Co., 222 N. Y. 14; De Bevoise v. Maple Ave. Constr. Co., 228 N. Y. 496; Central Hanover Bank & Trust Co. v. Eisner, 276 N. Y. 121; Harrington v. Harrington, 290 N. Y. 126; Payne v. City of New York, 277 N. Y. 393.)

      William L. Messing for Martin L. Dankers and others, respondents.
    I. That the petition was ruled sufficient did not establish that landlord could succeed without proving compliance with section 13. (Matter of Sipal Realty Corp. [Dankers], 5 A D 2d 84, 4 N Y 2d 1026.) II. The 60% mark was not reached without the apartments changed after May 1, 1955. Section 13 of the residential rent regulations was applicable to that space. Landlord did not comply with it. As a result, that space was not business space. The complaint was properly dismissed. (Estro Chem. Co. v. Falk, 303 N. Y. 83.) III. A new trial should not be ordered to enable landlord to establish compliance with section 13. IV. A section 2 order may not be made retroactive. In any event, it was improperly made retroactive in this case. (Matter of Barry Equity Corp. [Marcia Hat Co.], 276 App. Div. 685; 23 W. St. Corp. v. Gibbs & Cox, 282 App. Div. 362; Matter of Frankel [Eder], 197 Misc. 513, 277 App. Div. 968; Matter of Pan Amer. Mag. Bldg. [Brooks Costume Co.], 199 Misc. 982.) V. The evidence was insufficient to support findings of the reasonable rental on June 1,1944. (Blum v. Fresh Grown Preserve Corp., 292 N. Y. 241; Bank of United States v. Manheim, 264 N. Y. 45; Matter of Case, 214 N. Y. 199.) VI. The decision of Special Term contains no finding that the required percentage of space was “occupied” as business space at the time the proceeding was commenced.
    No appearance for Sylvia Heller, respondent.
   Burke, J.

The petitioner brought this proceeding to fix the reasonable rent for all the suites in a building owned by it, pursuant to the provisions of the Business Rent Law. (L. 1945, ch. 314, as amd., § 2, subd. [a], par. [2]; subd. [c].) Petitioner asserts that the apartments occupied by the respondents constitute business space because more than 60% of the total space in the building is lawfully occupied as business space. Special and Trial Term fixed the rents at the statutory percentages and directed that the rentals so' fixed should be paid from May 9, 1957, the date of the commencement of this proceeding. The Appellate Division reversed the order of Special Term on the law, finding that the requirements of the statute had not been satisfied because a number of apartments which had been converted subsequent to an amendment of the residential rent regulation (State Rent and Eviction Regulations, § 13) were not lawfully occupied as business space. These converted apartments, the Appellate Division concluded, continue under residential rent controls until orders of exemption from such controls were secured from the Rent Administrator. Subsequently the landlord secured the decontrol orders and moved for reargument. Reargument was denied (9 A D 2d 642). Thereafter the landlord moved at Special Term for a new trial. The order granting the motion was reversed by the Appellate Division (10 A D 2d 669).

It seems to us that the Appellate Division reached the correct conclusion on the law.

Section 13 of the Rent and Eviction Regulations adopted by the Temporary State Housing Rent Commission provides, in substance, that any housing accommodation rented for commercial use shall continue to be subject to control, and the landlord may not collect more than the controlled residential rent until an exemption order is issued by the Administrator exempting the space during the period of occupancy by the tenant.

Although this section was adopted after the Business Rent Law, it does not necessarily follow that they are inconsistent. Each law is designed to fulfill a different function, to remedy a different evil. Under the rules governing residential rent a landlord who has a building which is currently used for residential purposes, may seek decontrol, subjéct, however, to the provisions of section 13. Before a certificate is issued approving the conversion to business space the Rent Administrator conducts • such inquiry as he deems necessary to determine whether the conversion was made in good faith. (See Note of the Temporary State Housing Rent Commission to Amendment No. 76 to State Rent and Eviction Regulations, § 13, eff. Juno 1, 1959.)

This is an entirely different function from that assigned to the Supreme Court by the applicable section of the Business Bent Law. In such a proceeding, if 60% is legally occupied as business space, the court may fix the rent in proportion to rental rate of similar space as of 1944. This rent rate proceeding involves no determination in regard to the validity or legality of the conversion itself, nor compliance with building regulations required by the Building Department, but rather is a value determination which is used as the basis for the increased rent. Bach agency, then, has a separate and distinct function to perform. The Bent Administrator determines whether the conversion is bona fide and authorizes an increase of rent. The court fixes the rate. There is no statutory provision which divests one agency of jurisdiction merely because the other agency has a duty of supervision.

Viewed in the light of this interaction, there is no substance to appellant’s contention that the term “lawfully occupied” does not embrace a consideration of the regulations issued by the Temporary State Housing Bent Commission as specifically authorized by the Legislature. It is of some significance that, although five years have elapsed since the adoption of section 13, the Legislature has not shown any dissatisfaction with its use, or found any conflict engendered by its operation or policy. Bather than being in conflict, these regulations may be said to be complementary. Proof of the exercise of the duty of supervision which was imposed on the Administrator by the Legislature may not be supplanted by the bare proof of unilateral physical conversion from a residential to a business use wrought by the landlord. If the bare fact of the physical change in the character of the space is held to be the determinative factor, the landlord then will be substituted as the sole arbiter in place of the Administrator. Such a ruling would encourage precisely the evil which the rent legislation was designed to control. The regulation is designed to provide an impartial agency to determine whether the conversion to business is a mere sham in. order to take advantage of the higher “ emergency rent ” or whether fraudulent or collusive arrangements have been made with the tenants comprising the business space group so as to take advantage of the residential space group whose rents may be raised even though they are still using the space for purely residential purposes.

The significance of Matter of Lorenzo Estates (decided by the Temporary State Housing Bent Commission May 6, 1959), cited by the appellant, lies in the fact that the Bent Administrator made the precise determinations discussed above. He gave “careful consideration” to the entire record, and then concluded that ' ‘ the intended renting is purely a commercial one and that the subject accommodation will not be used for residential purposes ”. Accordingly, he issued an order exempting the space “ so long as it is not used for residential purposes ”. The legal effect is quite different from appellant’s assertions. The space becomes exempt when the Administrator finds that the conversion is genuine, not when the landlord claims an exemption. In connection with this view of the value of section 13, it is important to recall that in 1959 the Legislature, through the State Housing Bent Commission, amended section 13 “for the purpose of enabling the Administrator to determine the good faith of the conversion from residential to business space in order to avoid abuses ”. (Note of Commission to Amendment No. 76 to State Bent and Eviction Begulations, § 13, eff. June 1, 1959, citing Matter of 114 East 40th Corp. v. Armstrong, 14 Misc 2d 984, 986-987, and Matter of Sipal Realty Corp. [Dankers], 16 Misc 2d 827, 833.)

We do not think that it is the law of this case that this court’s prior action (Matter of Sipal Realty Corp. [Dankers], 4 N Y 2d 1026) sustaining the petition as sufficient in law now precludes consideration of the applicability of section 13. The allegations set forth in the petition before us on the occasion of that appeal were broad enough to include a statute not referred to at that time. Since the pleading was to be liberally construed on the motion to dismiss, and since the petition did not allege whether any conversions were made after the effective date of section 13, we find that the issue in respect to that regulation was not raised in this court.

While we are in agreement with the Appellate Division, we believe that the order should be modified so as to grant a new trial, in order to allow the petitioner to introduce the section 13 certificates secured from the Bent Administrator subsequent to the. decisions of the Appellate Division. At that trial the respondents would have an opportunity to challenge" the validity of the issuance of the certificates. Thus the trial court would be able to determine when the increased rent became effective and what amounts, if any, of rent are presently owed to the petitioner by the respondents.

The order of the Appellate Division should he modified insofar as it dismissed the petition, without costs, and the matter remitted to Special Term for further proceedings not inconsistent with the opinion herein.

Chief Judge Desmond and Judges Dye, Froessel and Foster concur with Judge Burke; Judges Fuld and Van Voorhis dissent and vote to reverse the order of the Appellate Division and to reinstate the order of Special Term for the reasons stated in the opinion at Special Term and in the dissenting opinion at the Appellate Division.

Ordered accordingly.


source: Caselaw Access Project

license: Public Domain

text:
    Scarsdale Supply Company, Appellant, v. Village of Scarsdale, Respondent.
    Argued October 5, 1960;
    decided October 21, 1960.

      Arthur F. Driscoll and John Drew for appellant.
    I. The trial court was in error in holding that while plaintiff is still in undisturbed possession and use of the plot in question as a supply yard (a nonconforming use) it cannot maintain an action for a declaratory judgment to void the rezoning, and that such action must wait until after the nonconforming use is terminated. (Headley v. City of Rochester, 272 N. Y. 197; Euclid v. Ambler Co., 272 U. S. 365; Vernon Parle Realty v. City of Mount Vernon, 307 N. Y. 493; Dowsey v. Village of Kensington, 257 N. Y. 221.) II. The Board of Trustees of the Village of Scarsdale did not have the power or authority to change the provisions of section 179 of the Village Law (a State statute) to permit them to rezone plaintiff’s property by less than the favorable vote of all the members of the Board of Trustees. (Matter of McAneny v. Board of Estimate & Apportionment of City of N. T., 232 N. Y. 377; County Securities v. Seacord, 278 N. Y. 34; Adler v. Deegan, 251 N. Y. 467.) III. The trial court was in error in assuming that, because of the Village Home Buie Law, defendant was empowered to change the unanimous vote required by section 179 of the Village Law. (Jewish Consumptives’ Relief Soc. v. Town of Woodbury, 230 App. Div. 228, 256 N. Y. 619: People ex rel. Kieley v. Lent, 166 App. Div. 550, 215 N. Y. 626; People v. County of Westchester, 257 App. Div. 769; Matter of Thorofare Developing Corp. v. Deegan, 134 Misc. 592, 226 App. Div. 871; Matter of Smidt v. McKee, 262 N. Y. 373.) IV. The fact that in 1956 the State Legislature amended section 179 of the Village Law eliminates the possibility that such power to amend was delegated to village boards. V. The unanimous adoption of a village code in February, 1957 did not affect the inherent validity of the rezoning of plaintiff’s property in 1955. (Matter of Chapin v. Hogan, 208 App. Div. 56.)

      Richard A. Tilden for respondent.
    I. The trial court was correct in holding that there was no showing of any unreasonable interference with or confiscation of any of plaintiff’s present property rights. • (Headley v. City of Rochester, 272 N. Y. 197; Euclid v. Ambler Co., 272 U. S. 365; Vernon Park Realty v. City of Mount Vernon, 307 N. Y. 493; Dowsey v. Village of Kensington, 257 N. Y. 221.) II. Appellant has an adequate administrative remedy and should be required to exhaust such remedy before applying to the courts for relief. (Ulmer Park Realty Co. v. City of New York, 267 App. Div. 291; Vangellow v. City of Rochester, 190 Misc. 128; O’Brien Transfer & Stor. Co. v. Incorporated Vil. of Great Neck, 2 A D 2d 690; Hyde v. Incorporated, Vil. of Baxter Estates, 2 A D 2d 889; Levitt v. Incorporated Vil. of Sands Point, 6 N Y 2d 269; Matter of Otto v. Steinhilber, 282 N. Y. 71.) III. Appellant failed to sustain the burden of proving that its property could not reasonably be used for any purpose for which it was zoned. (Dicker v. Gulde, 11 Misc 2d 807; Shepard v. Village of Skaneateles, 300 N. Y. 115; Matter of Eaton v. Sweeny, 257 N. Y. 176; Arverne Bay Constr. Co. v. Thatcher, 278 N. Y. 222.) IV. The amendment rezoning appellant’s property was validly enacted. (Good Humor Corp. v. City of New York, 290 N. Y. 312.) V. Any invalidity of the rezoning of appellant’s property in 1955 was effectively corrected by the unanimous adoption of a village code in 1957.
   Burke, J.

The controversy hereby remanded for a determination of the material issues arises out of, and questions the validity of, the rezoning of real property owned by the plaintiff in the Village of Scarsdale. Plaintiff has, since 1922, continually occupied and used the premises (an interior plot of 3.4 acres) as a building supply yard in a business zone district of the Heathcote section of Scarsdale. However, in October of 1955, despite plaintiff’s written protest, the Board of Trustees of the village, via an amendment to the building zone ordinance, placed plaintiff’s entire tract in a unique and newly established Residence B District.

Plaintiff urges that the board’s enactment (in June of 1955, prior to the adoption of the zoning ordinance) of Local Law No. 4 was void and unconstitutional. We agree with the courts below that, at the time of the commencement of the action herein, this error was effectively cured, and the question rendered moot (Strauss v. University of State of N. Y., 2 N Y 2d 464), because of the unanimous adoption, by the Board of Trustees, of the new Scars dale Village Code, which expressly repealed the former ordinances, but retained the same zoning restrictions by a re-enactment. (See ch. 1, art. 1, § 1-1-2; and ch. 12.)

On the trial plaintiff produced evidence which, it contends, demonstrates that the limitation and conditions imposed by the new zoning were intended to eliminate and impair the use and value of the property for any purpose whatever, other than its present nonconforming use. Plaintiff sought a declaratory judgment, therefore, that the rezoning of its property was over-burdensome, unreasonable and confiscatory, and, therefore, unconstitutional.

The trial court, although finding that plaintiff produced evidence which might be sufficient to prove that the property could not be practically or profitably used for residential purposes, dismissed the complaint stating, inter alia, that, because of the existence of a nonconforming use, there is no deprivation of property or justiciable controversy (citing Headley v. City of Rochester, 272 N. Y. 197).

It is our opinion that the trial court erred in failing to decide whether the alleged deliberate confiscation and alleged resulting depreciation in the value of plaintiff’s property, regardless of the existence of a nonconforming use, constitutes a present invasion on plaintiff’s property rights. If it does so, the existence and maintenance of the ordinance and the threat to continue it under these circumstances would entitle plaintiff to equitable relief. (Dowsey v. Village of Kensington, 257 N. Y. 221, 229; Euclid v. Ambler Co., 272 U. S. 365, 386.) The plaintiff, having asserted an invasion of his property rights, must be allowed (although a nonconforming business use exists) to try to prove that the property is so situated that it has no possibility for residential and zoned uses, and is most readily adapted to a use now precluded under the zoning ordinance. (Vernon Park Realty v. City of Mount Vernon, 307 N. Y. 493, 499.)

The Headley case (supra), upon which the court below unduly relied, is quite distinguishable. In addition to the fact that it was not a zoning case, it was submitted on an agreed statement of facts which in no way indicated that the present value was diminished or that plaintiff was at all damaged. In that case, plaintiff brought an action to declare unconstitutional a street-widening ordinance, which, in order to alleviate future condemnation expenses, amended the official maps of the City of Rochester and thereby imposed a 25-foot setback on plaintiff’s lawn. This court affirmed the dismissal of the complaint upon a finding that plaintiff was not a party aggrieved. As explained in Vangellow v. City of Rochester (190 Misc. 128, 132-134), followed in S. S. Kresge Co. v. City of New York (275 App. Div. 1036), in the Headley situation no condition could be imposed requiring plaintiff to surrender the right to just compensation if and when the city should condemn the property. ‘' Therefore, when the Court of Appeals held that he was not an aggrieved party, it could not have meant that he was not affected, but rather that he was not damaged, for the reason, as the opinion indicates, that inability to build in that strip did not depreciate the value of his property as a whole, nor interfere with any use to which he intended in good faith to devote the said strip. In the language of the opinion, written by Judge Lehman, Headley’s property could be ‘ put to the most profitable use by the erection of a building which does not encroach upon the small portions which may be used hereafter to widen the street. ’ ” (Emphasis supplied.)

On the contrary, in the case at bar, not only is there no opportunity for condemnation compensation, but if there is evidence that the property cannot be reasonably adapted to any use permitted by the zoning ordinance, the ordinance may be found to be confiscatory. We do not agree that this wrong, i.e., invasion of plaintiff’s rights, can be held to be remediless merely because of the existence of a nonconforming use.

Defendant’s argument that there is an administrative remedy (i.e., application for a variance) which has not been but should be exhausted is without merit. It is well established that such a burden may not be imposed upon a plaintiff as a prerequisite to the maintenance of an action challenging the constitutionality of the zoning ordinance. (Ulmer Park Realty Co. v. City of New York, 267 App. Div. 291, 293.) The Zoning Board does not have the power to review the discretion of the Board of Trustees (Dowsey v. Village of Kensington, supra, pp. 227-228; Arverne Bay Constr. Co. v. Thatcher, 278 N. Y. 222) and thereby correct errors of judgment in zoning. (Matter of Otto v. Steinhilber, 282 N. Y. 71; Blatter of Levy v. Board of Standards & Appeals, 267 N. Y. 347.)

Here plaintiff does not seek to remedy the effect of a valid regulation, but rather to strike it as confiscatory and unconstitutional. In the latter situation, relief is afforded by means of a direct attack upon the terms of the ordinance (Matter of Otto v. Steinhilber, supra, p. 75). “Indeed, an application for a variance here * * * would be futile * * * since the Zoning Board of Appeals has no power to remake the zoning map under the guise of granting a variance [cases cited] ” (Levitt v. Incorporated Vil. of Sands Point, 6 N Y 2d 269, 273). Where, as here, the pleadings allege that the ordinance in and of itself destroys the marketability and value of the property for commercial and residential uses, an application for a variance is not a condition precedent to a judicial remedy. (Euclid v. Ambler Co., 272 U. S. 365, 386, supra.)

Accordingly, the judgment should be reversed and the case remitted to Special Term, with costs to abide the event, for a determination of the material issues presented by this record.

Chief Judge Desmond and Judges Dye, Fuld, Froessel, Van Voorhis and Foster concur.

Judgment reversed, etc.


text:
    Dorothy Brown, Individually and as Guardian ad Litem of Robert Brown and Another, Infants, Respondent, v. Broome County, Appellant.
    Argued October 18, 1960;
    decided November 17, 1960.

      Charles P. O’Brien and Justin C. Flannigan for appellant.
    I. The autopsy was legally ordered. (Gould v. State of New York, 181 Misc. 882.) II. Children are not entitled to judgment. (Gostkowski v. Roman Catholic Church, 262 N. Y. 320; Trammell v. City of New York, 193 Misc. 356.) III. Damages were excessive and, if verdict is not set aside, it should be reduced. (Volts v. Blackmar, 64 N. Y. 440; Grawunder v. Beth Israel Hosp. Assn., 242 App. Div. 56; Gostkowski v. Roman Catholic Church, 237 App. Div. 640, 262 N. Y. 320; Gould v. State of New York, 181 Misc. 882.)

      William K. English for respondent.
    I. An action for an unauthorized autopsy is a well-established principle. (Foley v. Phelps, 1 App. Div. 551; Darcy v. Presbyterian Hosp., 202 N. Y. 259; Grawunder v. Beth Israel Hosp. Assn., 242 App. Div. 56; Gould v. State of New York, 181 Misc. 882; Better v. New York

      City, 269 App. Div. 642; Hassard v. Lehane, 143 App. Div. 424.) II. Unauthorized autopsy is primarily a question of fact for the jury. (Better v. New York City, 269 App. Div. 642.)
   Burke, J.

The trial court set aside a verdict of a jury and dismissed the complaint as a matter of law in this action brought against the county for an alleged unauthorized autopsy performed at the direction of a Coroner, over the objections of the plaintiff, on the body of her husband. The body of the deceased, a railroad worker whose duties included assisting in the assembling and coupling of freight cars, was found between tracks in a railroad yard with the left hand partially severed. The Appellate Division has reversed the judgment on the law and the facts, and directed judgment for the plaintiff, finding that under the circumstances of this case the statutory standard of section 773 of the Code of Criminal Procedure (i.e., reasonableness of the Coroner’s conduct) was a fact question for the jury.

The appellant’s principal argument that the reasonableness of the conduct herein is simply a question of law misconstrues the meaning of the statutes. Although the statutes governing the performance of autopsies grant broad discretion to Coroners, the power is limited to deaths which indicate a possibility of criminality or suicide. The exercise of such discretion will generally be upheld because it is apparent that a court, in most cases, can readily determine whether the Coroner had ‘ reasonable ground to suspect” that the death was occasioned “by the act of another by criminal means ” or that decedent is a suicide. (Code Crim. Pro., § 773, read with Public Health Law, § 4210.) Occasionally a court may find that the evidence shows an abuse of discretion as a matter of law, but such instances are rare. There are, however, many cases, and this is one, where the question of the reasonableness of the grounds for directing an autopsy may not be found to be absolutely right or wrong. It falls in an area where there is a want of full proof. Then the question of reasonableness cannot be treated as a problem of law alone. When, as here, the nature of the work, the duties of the deceased, the site of the work and the scene of death disclose conditions which often accompany accidents resulting in death, there should be substantial reasons present to justify the need for an autopsy. Since the death was unwitnessed and could have been caused by the injury to the hand, an autopsy would not lead to signs of criminality or point to a suicide. When these facts are considered collectively, the judgment used by the Coroner cannot be found to be unassailable. In such circumstances an appraisal of the sensibleness of a decision directing an autopsy does involve a finding of fact.

The objection of the county to the joinder of the infant children of the deceased as plaintiffs is mistaken. The rule relied upon which was announced in Gostkowshi v. Roman Catholic Church (262 N. Y. 320, 325) does not forbid a joinder of the infants as plaintiffs with the spouse of the deceased. The court in that case held that a child may not maintain a separate action, as there can only be a single recovery, but indicated that “ surviving members of the deceased’s family might join as plaintiffs ” (Boyle v. Chandler, 33 Del. 323).

In our opinion such joinders are permissible since they are in accord with the principles of modern practice, which seek to have all interested parties’ rights settled in one action by a single judgment.

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

Chief Judge Desmond and Judges Dye, Fuld, Froessel, Van Voorhis and Foster concur.

Judgment affirmed.


author: Per Curiam.

text:
    The People of the State of New York, Appellant, v. Anthony Pavia, Respondent.
    Argued October 21, 1960;
    decided November 17, 1960.

      Morris Marshall Cohn, District Attorney, for appellant.
    Defendant’s guilt was established beyond reasonable doubt. (People v. Richardson, 287 N. Y. 563; People v. Soshtain, 288 N". Y. 658; People v. Marra, 289 N. Y. 703; People v. Carpenito, 292 N. Y. 498; People v. Goldstein, 295 N. Y. 61; Watts v. Malatesta, 262 N. Y. 80; People v. Formato, 286 App. Div. 357.)

      Frank N. Grasso and Alexander Grasso for respondent.
    I. The People failed to prove the crime charged. II. The facts. proven on the trial did not, as a matter of law, prove a violation of section 986 of the Penal Law. (People ex rel. Lichtenstein v. Langan, 196 N. Y. 260; People v. Lamhrix, 204 N. Y. 261; People v. Bright, 203 N. Y. 73; People ex rel. Shane v. Gittens, 78 Misc. 7; People v. Laude, 81 Misc. 256; People v. Carpenito, 292 N. Y. 498; People v. Goldstein, 295 N. Y. 61.)
   Per Curiam.

The reversal of the judgment of conviction by the County Court for the stated reason ‘‘ that the evidence produced on this trial fell far short of the minimal requirements ” is unwarranted, for such evidence establishes a violation of section 986 of the Penal Law beyond a reasonable doubt.

The proof of the possession of writings representing bets for nine races at different tracks, together with the money covering the bets, coupled with the admissions of the bettor and the defendant that the defendant had agreed “ to try to get the bets down”, justified the inference that defendant was engaged in a book-making transaction on a professional basis. Defendant argues that there must be proof of more than one transaction. A single transaction, he contends, is only eireumstantial evidence which is of little value as such a circumstance is just as consistent with a finding of innocence as of guilt. The test of .a gambling transaction does not necessarily require evidence of a series of bets. In many instances the circumstances surrounding a single transaction will justify a finding of a participation in gaming to a degree forbidden by the statute. In this case the evidence given by the bettor and the defendant distinguish the conduct of the defendant from that conduct which would indicate only occasional participation. Here the defendant collected money lost by the bettor to him on a wager, and at the same time accepted additional money which represented the funds for nine bets which the defendant agreed to place. These conceded facts surely import some continuity of gambling practices. Hence the probative force of the conditions attending this single transaction was sufficient to warrant the conviction of the defendant for a violation of the statute against professional gambling.

Accordingly, the order of the Schenectady County Court should be reversed, the information reinstated and a new trial ordered.

Chief Judge Desmond and Judges Dye, Fuld, Froessel, Van Voorhis, Burke and Foster concur.

Order reversed, etc.


text:
    In the Matter of Richard Saxton et al., Appellants, v. Frederick B. Hose, Jr., as County Treasurer of Suffolk County, Respondent.
    Submitted October 12, I960;
    decided November 17, 1960.

      Joseph T. Losee and Douglas E. Brown for appellants.
    I. Section 63 of the Suffolk County Tax Act is not applicable to this proceeding. (Smith v. Albertson, 201 Misc. 940, 281 App. Div. 990, 282 App. Div. 741; Kassam Corp. v. Walsh, 285 App. Div. 955; Matter of Kantor [Hutner], 280 App. Div. 605.) II. This proceeding is properly brought under the provisions of section 40-c of the Suffolk County Tax Act. No necessary parties to this proceeding have been omitted therefrom. (People ex rel. Cooper v. Registrar of Arrears, 114 N. Y. 19; People ex rel. Ostrander v. Chapin, 105 N. Y. 309; People ex rel. National Park Bank v. Metz, 141 App. Div. 600; Werking v. Amity Estates, 2 N Y 2d 43; Bandler v. Hill, 84 Misc. 359; Matter of Lyons v. State Tax Comm., 235 App. Div. 474; People ex rel. Staples v. Sohmer, 206 N. Y. 39; Hunt v. Dekin, 187 Misc. 649.) III. The denial of respondent’s motion to dismiss the petition as insufficient required a denial of this motion under rule 112 of the Buies of Civil Practice.

      Henry M. Zaleski, County Attorney (Stanley S. Corwin of counsel), for respondent.
    I. Applications to the County Treasurer of Suffolk County to cancel tax sales prior to conveyance of lands so sold are not authorized by applicable law. After conveyance, such applications are authorized but cancellation is discretionary with the County Treasurer. II. The facts alleged in the petition to the County Treasurer did not justify bim to cancel the tax sales in question herein on his own motion. (Matter of Phillips, 60 N. Y. 16.) III. Tax deeds having been executed and delivered to tax purchasers who are not parties herein, this proceeding must be dismissed. (People ex rel. Staples v. Sohmer, 206 N. Y. 39.) IV. The denial of respondent’s motion to dismiss the petition as insufficient did not require a dismissal of respondent’s motion under rule 112 of the Buies of Civil Practice. V. Petitioners have an adequate remedy at law where the rights of all interested persons can be determined. This proceeding cannot adjudicate such rights and should be dismissed. VI. The application to the Suffolk County Treasurer under law applicable to Suffolk County for cancellation of tax sales can only be made by purchasers at the sale. (People ex rel. Witte v. Roberts, 144 N. Y. 234.) VII. Section 63 of the Suffolk County Tax Act is a controlling Statute of Limitations applicable to this proceeding. VIII. The provisions of section 22 of the Suffolk County Tax Act are directory only.
   Per Curiam.

Although a triable issue was presented because the record does not contain evidence which conclusively established the purchasers at the tax sales as necessary parties (see People ex rel. Cooper v. Registrar of Arrears, 114 N. Y. 19), and although section 63 of the Suffolk County Tax Act by its terms is not applicable to an action based on alleged defects in a tax sale proceeding which allegedly occurred subsequent to the date of the receipt of the tax warrant by the Town Receiver, the order of the Appellate Division should be affirmed, but on another ground. An application to the Suffolk County Treasurer pursuant to section 40-c of the Suffolk County Tax Act in connection with the cancellation of tax sales may only be made by the purchaser at the sale. We construe section 40-c of the Suffolk County Tax Act as we have construed section 140 of the Tax Law as giving the former owner no standing to apply for cancellation. (People ex rel. Witte v. Roberts, 144 N. Y. 234, 237; People ex rel. Staples v. Sohmer, 206 N. Y. 39, 42.) Since the application of the former owners to the County Treasurer to cancel the tax sales was not authorized by law, the order of the Appellate Division should be affirmed, with costs.

Chief Judge Desmond and Judges Dye, Fuld, Froessel, Van Voorhis, Burke and Foster concur.

Order affirmed.


author: Fuld, J.

text:
    Helene Arpels, Appellant, v. Louis Arpels, Respondent.
    Argued October 11, 1960;
    decided November 17, 1960.

      Arthur S. Friedman, Milton S. Gould and Martin London for appellant.
    I. Each of the complaint’s two causes of action was sufficient as a matter of law. (Gould v. Gould, 235 N. Y. 14; Garvin v. Garvin, 302 N. Y. 96; Rosenbaum v. Rosenbaum, 309 N. Y. 371; McNamara v. McNamara, 256 App. Div. 370; Rose v. Brown, 186 Misc. 553; Advance Music Corp. v. American Tobacco Co., 296 N. Y. 79; de la Bouillerie v. de Vienne, 300 N. Y. 60.) II. In directing a final dismissal of the complaint the Appellate Division found a supposed fact which is nowhere contained within the pleading. (Dyer v. Broadway Cent. Bank, 252 N. Y. 430; Abrams v. Allen, 297 N. Y. 52; Penn-Ohio Steel Corp. v. Allis-Chalmers Mfg. Co., 15 Misc 2d 752; A. E. F.’s Inc. v. City of New York, 295 N. Y. 381.) III. The Appellate Division’s reversal of the temporary injunction granted to plaintiff at Special Term was erroneous.

      Charles Roden, Sol A. Rosenblatt and Richard L. Russell for respondent.
    I. Justice and comity properly required dismissal of plaintiff’s complaint. (Dunstan v. Higgins, 138 N. Y. 70; Matter of Matthews, 143 App. Div. 561.) II. The complaint, as a matter of law, insufficiently stated a cause for injunctive relief. (Rosenbaum v. Rosenbaum, 309 N. Y. 371; Goldstein v. Gold-stein, 283 N. Y. 146; Horton v. Cantwell, 108 N. Y. 255.) III. No property rights of plaintiff are wrongfully endangered by the French action. (Stevenson v. News Syndicate Co., 302 N. Y. 81; Babho Realty Co. v. Feffer, 230 App. Div. 866.) IV. The French action is lawfully maintained. Defendant’s rights under the Federal and State Constitutions are violated by the maintenance of this action. (Matter of May, 305 N. Y. 486; DavidZieseniss v. Zieseniss, 205 Misc. 836; Schildkraut v. Schildkraut, 226 App. Div. 747; Gould v. Gould, 235 N. Y. 14; Hubbard v. Hubbard, 228 N. Y. 81; Oettgen v. Oettgen, 196 Misc. 937; Matter of Rathscheck, 300 N. Y. 346; Rawstorne v. Maguire, 265 N. Y. 204; Scoe Corp. v. Paramount Pictures Corp., 17 Misc 2d 192; Dupuy v. Wortz, 53 N. Y. 556.)
   Fuld, J.

This action was brought by a wife against her husband to restrain the continued prosecution of an action for divorce, based on a charge of adultery, instituted by him in France. At Special Term, the wife’s motion for temporary injunction was granted and the husband’s cross motion for dismissal of the complaint denied. The Appellate Division reversed, denying the motion for a temporary injunction and ordering the complaint dismissed. The wife now appeals, as of right, from the judgment dismissing her complaint.

At the very outset of our consideration of this case, we are faced with the procedural question of whether, on this appeal involving the order dismissing the complaint, nncontested facts contained in the parties’ affidavits, before both Special Term and the Appellate Division, on the motion for a temporary injunction are properly before us or whether we are restricted to the allegations of the complaint. The Appellate Division apparently treated the situation as equivalent to a motion for summary judgment and considered the affidavits, as well as the complaint, on the motion to dismiss. Whether this was proper, we need not here decide, for an affirmance is dictated by a consideration of the complaint alone, and it is to its allegations that we confine our attention.

The Arpéis, long domiciled in France, were married in that country in 1933 and there they continued to live until the war period in 1940 when they came to this country and took up residence in a New York City hotel. During the period after the termination of the European hostilities, they returned to France annually, in the Spring and Summer months, living in the same house which they had occupied after their marriage, a house still owned and maintained by the defendant.

The parties separated in 1954 and, following Mrs. Arpéis’ commencement of an action in our Supreme Court, she was granted a judgment of separation which incorporated the support terms of a separation agreement. Four years later, Mr. Arpéis initiated a divorce action against his wife in France, based on her wrongful acts, including adultery, and, although she has not appeared in that action, she was served with the divorce papers, by a form of substituted service, while in France. In the present action, instituted to enjoin her husband from continuing his divorce suit, Mrs. Arpéis alleges that the courts of France have no jurisdiction to entertain it and that the decree sought would cause her irreparable injury.

The use of the injunctive power to prohibit a person from resorting to a foreign court is a power rarely and sparingly employed, for its exercise represents a challenge, albeit an indirect one, to the dignity and authority of that tribunal. Accordingly, an injunction will be granted only if there is danger of fraud or gross wrong being perpetrated on the foreign court. Furthermore, where a foreign divorce is sought, our courts will intrude, even if a serious impropriety would be involved in its procurement, only when the ensuing decree would be entitled to full faith and credit in this State. (See Rosenbaum v. Rosenbaum, 309 N. Y. 371; Garvin v. Garvin, 302 N. Y. 96; see, also, Goldstein v. Goldstein, 283 N. Y. 146.)

The complaint before us, far from indicating that the French decree would represent a fraud on the French court, sets forth facts which actually tend to support its jurisdiction. The complaint alleges a French marriage, the French domicile of both parties until 1940, the husband’s long-continued and present ownership and maintenance of a home in France, annual visits to France by both parties, substituted service in the French divorce action upon the wife while in France and it also recites that the divorce is sought on the ground of adultery; most significantly, it fails to allege that the parties were not citizens of France when the action was instituted in that country. On the basis of this complaint, not only is there good reason to believe that the French court has jurisdiction to entertain the defendant’s divorce suit and to render a binding judgment under French law, but the likelihood is that the decree, sought on the ground of adultery, will find acceptance under New York rules of comity. (Of. Gould v. Gould, 235 N. Y. 14, 25-26.) The plain fact is that the foreign decree would not violate any public policy of this State and, since this is so, it would be absurd to enjoin the husband from proceeding with the action.

Moreover, as suggested above, the injunctive power will not be exercised where, as here, the foreign decree will not be entitled to full faith and credit. Although our courts will enjoin a spouse from obtaining a divorce in a sister state (see Garvin v. Garvin, 302 N. Y. 96, supra), they will not restrain the prosecution of a divorce proceeding in a foreign country. (See Rosenbaum v. Rosenbaum, 309 N. Y. 371, supra.) Accordingly, even were we to accept the plaintiff’s conclusion, expressed in the complaint, that the husband’s action is founded on facts ‘ ‘ insufficient to confer jurisdiction ’ ’ upon the French courts, we would, nevertheless, deny the injunction since, as we held in the Rosenbaum case (309 N. Y. 371, 374, supra), “ the drastic remedy of injunction” does not lie “to restrain the prosecution of a concededly invalid divorce action in a foreign country ’ ’.

Our decision in the Rosenbaum case stems, in one sense, from Goldstein v. Goldstein (283 N. Y. 146, supra), where an injunction was sought against the prosecution of a divorce in Florida. Finding that on the facts alleged the courts of that state were “ wholly without jurisdiction to render a valid divorce ” (p. 148), this court, nevertheless, denied the injunction, reasoning that “ The plaintiff has nothing to fear from the action which her husband has sought to bring against her in Florida for on her statement a judgment entered therein would be a nullity ’ ’ (p. 148).

However, Goldstein v. Goldstein was decided by this court before the United States Supreme Court announced the rule, in Williams v. North Carolina (317 U. S. 287), that a divorce decree, valid under the laws of one of our states, must be granted full faith and credit by a sister state. After the Williams case was decided, the problem posed by Goldstein was again brought before this court in Garvin v. Garvin (302 N. Y. 96, supra); a wife sought to enjoin her husband’s pursuit of a divorce in the courts of the Virgin Islands on the ground that “her husband’s stay in the Islands is temporary only, for divorce purposes, and that any alleged residence there is a sham ’ ’ (p. 101). Based on the assumption that the Williams rule of full faith and credit applies to the courts of an insular possession of the United States to the same degree as to the courts of a sister state, this court held that an injunction would lie. Expressly recognizing that “ The bases for plaintiff’s fear are the ‘ full faith and credit ’ and ‘ prima facie weight ’ holdings of Williams v. North Carolina ”, the court reasoned that, ‘ ‘ If the husband be allowed to prosecute his foreign suit to judgment, the wife, to save her rights as wife, will have to bring a new suit to set aside the foreign decree and in that suit will have to bear the heavy burden of striking down the prima facie effect of the foreign court’s finding of residence ” (p. 102).

The only difference between Garvin and Goldstein is that in the former the foreign decree involved was entitled to full faith and credit, while in the latter, on the state of the federal law at the time it was decided, the foreign decree was not considered subject to the full faith and credit clause. What impelled our intervention in Garvin was the compulsive effect attaching to a decree of the Virgin Islands as a result of the application of the full' faith and credit clause under the rule of the Williams case.

This interpretation of the variant results of the Garvin and Goldstein cases is fully demonstrated by our decision in Rosenbaum v. Rosenbaum (309 N. Y. 371, supra). There, too, a spouse brought suit to enjoin a foreign action for divorce, alleging that .the foreign decree sought would be a legal nullity. The only relevant difference between Rosenbaum and Garvin was the fact that the decree in Rosenbaum was being sought in Mexico and would not have been entitled to full faith and credit, while the decree in the Garvin case would have been. Belying on Goldstein as a binding precedent and distinguishing Garvin as applicable only where full faith and credit would attach to the foreign decree, the court in Rosenbaum denied the injunction, declaring that the “defendant is attempting to prosecute a divorce in a foreign country which would not be entitled to full faith and credit ’ in this State — precisely the situation we faced [in Goldstein] with respect to sister State divorces as they were regarded prior to the Williams case {supra). What we decided under those circumstances [in Goldstein] is controlling here” (309 N. Y., at pp. 376—377; emphasis supplied), f

The simple test, then, of whether the New York courts will issue an injunction against the prosecution of foreign divorce proceedings resulting in a void decree is whether that decree would be entitled to full faith and credit in this State. Since the decree which the defendant husband seeks in France in this case would not be entitled to full faith and credit, it follows that an injunction does not lie.

This conclusion is not impaired in any manner by the plaintiff’s allegation, in her complaint, that property rights involved in her separation decree may be adversely affected by the French divorce. Whether, and in what respects, the French judgment would affect the defendant’s obligations to the plaintiff under the existing separation decree is, of course, not before us. Whatever the effect may be, however, it can no more provide the basis for an injunction than can the impact of the French divorce on the marital status of the parties. If the French decree is void, it can have no effect on the rights of the parties under the judgment of separation, and, on the other hand, if it is valid, whatever loss of property rights eventuates cannot be considered oppressive or unjust. Neither possibility warrants our intervention to prevent the issuance of the French decree.

The judgment should be affirmed, without costs.

Chief Judge Desmond and Judges Dye, Froessel, Van Voorhis, Burke and Foster concur.

Judgment affirmed.


author:
Burke, J.
      Chief Judge Desmond (dissenting).

text:
    The People of the State of New York, Appellant, v. William Hernandez, Respondent.
    Argued October 10, 1960;
    decided November 17, 1960.

      Isidore Dollinger, District Attorney (Walter E. Dillon of counsel), for appellant.
    The claim asserted by defendant is one which, if established, would not warrant the vacating of the judgment of conviction. (People v.Tomaselli, 7 N Y 2d 350; People v. Moore, 284 App. Div. 925; Taylor v. United States, 229 F. 2d 826, 351 U. S. 986; People v. King, 284 App. Div. 1015; People v. Frey, 286 App. Div. 996, 350 U. S. 1000; People v. Marinaccio, 2 A D 2d 678, 353 U. S. 916; People v. Battice, 5 N Y 2d 946, 361 U. S. 967; People v. Vance, 7 A D 2d 661.)

      Henry B. Rothblatt for respondent.
    I. Defendant’s sworn assertions that his plea of guilty was induced by the failure of the official Spanish interpreter to correctly transmit the trial court’s inquiries and by the fraud of his counsel,-if established, would warrant the vacating of the judgment of conviction. (People v. Picciotti, 4 N Y 2d 340; People v. Vance, 7 A D 2d 661; People v. Patrick, 182 N. Y. 131; People v. Brown, 7 N Y 2d 359; People v. Guariglia, 303 N. Y. 338; People v. Sadness, 300 N. Y. 69; Matter of Lyons v. Goldstein, 290 N. Y. 19; People v. Farina, 2 A D 2d 776, 2 N Y 2d 454; People v. Sullivan, 276 App. Div. 1087; People v. Tomaselli, 7 N Y 2d 350.) II. Defendant was denied the aid and assistance of counsel at all stages of the criminal proceedings because of the inability and consequent failure of his family-appointed attorney to confer, consult or even communicate with him. (People v. McLaughlin, 291 N. Y. 480; People v. Marincic, 2 N Y 2d 181; People v. Banner, 5 N Y 2d 109; Powell v. Alabama, 287 U. S. 45.)
   Burke, J.

Defendant was permitted to plead guilty to robbery in the first degree to cover all five counts in an indictment and all other charges in the county. Fifty-three days later, defendant was' sentenced. During these proceedings he was represented by counsel of his own choosing, and in court was aided by an official Spanish interpreter, provided by the court. Fourteen months after conviction, defendant moved to vacate the judgment.

The County Court, Bronx County, denied Avithout a hearing defendant’s motion for the Avrit of error coram nobis. The Appellate Division has reversed the County Court and ordered a hearing.

The defendant contends that, if he can establish either that he was unable to consult with his counsel or that his plea was induced by the failure of the official interpreter to correctly translate the trial court’s inquiries and by the fraud of his counsel, the judgment of conviction must be vacated.

It is now well settled that ‘ ‘ Avhere the defendant alleges facts which, if established, justify relief by Avay of coram nobis, then, he ‘ is entitled to a trial thereof in open court unless his claims are ‘ ‘ conclusively refuted by unquestionable documentary proof ” ’ ” (People v. Picciotti, 4 N Y 2d 340, 344-345).

We find that no true question of fact exists which would Avarrant a hearing. The facts alleged have been shoAvn to be either demonstrably false or, even if true, not fit grounds for a Avrit of error coram nobis.

The fraud of counsel consists of a charge that defendant’s counsel falsely informed the court that he had advised defendant that a conviction for robbery might carry a minimum sentence of 10 years. This allegation, if conceded, would not justify relief through coram nobis. Although cases may arise where Ave may find that the constitutional rights of a defendant are violated because the representation of retained counsel is inadequate (see Powell v. Alabama, 287 U. S. 45), this is not such a case. The alleged misconduct of counsel chosen by defendant cannot be attributed to “ action on the part of the State ” (see People V. Tomaselli, 7 N Y 2d 350, 354; People v. Brown, 7 N Y 2d 359) and even if proven Avould not constitute a denial of due process.

The denial of the effective aid and assistance of counsel was the result, defendant avers, of counsel’s inability to speak or understand Spanish. As a consequence, he concludes, he did not have the privilege of conferring with counsel. While it is certain that a defendant has a full right to be represented by counsel, and the courts may have a duty to assign counsel in specific cases, there is also a corresponding right to insist on a personal counsel (N Y. Const., art. I, § 6). This is a choice which the defendant himself must make, and with which the courts may not interfere (People v. Price, 262 N. Y. 410). In the circumstances presented, such a choice having been consciously made, the defendant may not complain that he was dissatisfied with the representation he received.

The third claim of the defendant deals with the alleged misrepresentations of the official interpreter. The interpreter, defendant asserts, did not translate the questions which the Judge put to counsel and the answers made by counsel in regard to attorney-client conferences and the minimum sentence. There is, however, no requirement that such questions be asked. It is a purely gratuitous act on the part of the court. The question then must be whether this court would vacate the judgment if in fact the interpreter had not translated the colloquy between attorney and court to the defendant. Another way of phrasing this would be whether, if the questions had not been asked at all, would coram nobis lie? We think not. The questions were not required, so that their total absence, above and apart from defendant’s lack of knowledge of such questions and answers, would not be sufficient ground for the vacatur of the judgment.

Finally, all the papers considered by the trial court demonstrate that the presumption of regularity is buttressed with proof. By defendant’s own admission he was represented by counsel of his own choosing and assigned an interpreter, with whom he concededly conversed. The minutes reveal the Judge’s consideration for the defendant’s rights in interrogating both defendant and his lawyer before the plea was taken. The lawyer’s responses when the plea was accepted and his appeal for leniency on the sentence reflected the acts of a knowledgeable, loyal counsel. Where an accused person remains silent, under circumstances where, in spite of an alleged inability to understand English, he was in a position to convey his grievance to the court, he may not thereafter be heard to claim in a collateral attack that the conviction was procured by fraud or misrepresentation (People v. Moore, 284 App. Div. 925).

Chief Judge Desmond (dissenting).

I dissent because I believe that defendant’s sworn allegations should be tried out in open court, not summarily dismissed without trial. At the age of 20 with no prior criminal record, he pleaded guilty to robbery, first degree, and was sentenced to imprisonment for not less than 10 years and not more than 15 years. He swears in his petition that he did not know that 10 years was the statutory (Penal Law, § 2125) minimum for the crime, that he understood the Spanish language only while his lawyer spoke only English, that he was unable to and did not discuss the case or the matter with his lawyer, and that the court was falsely informed by defendant’s lawyer that the lawyer and defendant had discussed the matter of sentence. There was a Spanish-speaking court interpreter present but, so defendant alleges, the interpreter did not translate to defendant the colloquy between the court and defendant’s lawyer. By reversing an order calling for a trial of such averments, this court holds either that, assuming them to be true, they are no basis for relief, or that they are conclusively shown by undisputable proof to be false. Neither basis is sound.

An absolute minimum of fair play and due process required that proceedings fraught with such consequences should be explained to defendant in a language he could understand by an interpreter, considered for this purpose to be an officer of the court (People v. Randazzio, 194 N. Y. 147). It was the court’s own duty, regardless of what defendant’s counsel did or failed to do, to see that this young and unsophisticated defendant with little or no knowledge of the English tongue knew the meaning and consequences of his plea. This reversal means that whether or not he in fact understood it, nothing can be done about it now since the fault if any was that of his own retained lawyer. That sets much too low a standard of performance and too small a measure of duty for our criminal court judges. I agree with the unanimous Appellate Division that defendant was entitled ‘' through the official services of the court ” to be “ made cognizant of these questions by the Judge ”. That conforms to the holding of People v. Boehm (309 N. Y. 362, 368-369) that a defendant’s inability to understand sentencing procedures is ground for coram nobis relief.

The other ground put forth for denying a trial to this defendant— that his allegations are " conclusively refuted by unquestionable documentary proof” (People v. Richetti, 302 N. Y. 290, 296) so that there “ is no reasonable probability at all that defendant’s averments are true” (People v. Guariglia, 303 N. Y. 338, 343) —is entirely inappropriate here. There are not and cannot be any records which ‘' conclusively refute ’ ’ petitioner’s sworn allegations that because of the language difficulty he did not know what was going on. Defendant’s sworn assertions are certainly not “ palpably untrue ” (People v. White, 309 N. Y. 636, 641) and there is no fair way of determining their truth or falsity except by the time-honored and time-tested method of a trial of the fact in open court.

The order appealed from should be affirmed.

Judges Dye, Fuld, Froessel, Van Voorhis and Foster concur with Judge Burke; Chief Judge Desmond dissents in a separate opinion.

Order of the Appellate Division reversed and that of the County Court reinstated.


author: Chief Judge Desmond.

text:
    The People of the State of New York ex rel. Watchtower Bible and Tract Society, Inc., Appellant, v. Percy H. Haring et al., Constituting the Board of Assessors of Taxes of the Town of Lansing, Respondents. (And Two Other Proceedings.)
    Argued October 10, 1960;
    decided November 17, 1960.

      Hayden C. Covington for appellant.
    I. Each and every part of each of the above-described parcels of said real property owned by the society and situated in the tax district of respondents in Tompkins County is used exclusively by an exempt organization for carrying out thereupon one or more of the exempt purposes in the manner stated in the Tax Law. (People ex rel. Watchtower Bible & Tract Soc. v. Mastin, 191 Misc. 899; Matter of New York Conference Assn. of Seventh-Day Adventists v. Schenck, 275 App. Div. 742, 279 App. Div. 845, 304 N. Y. 706; People ex rel. Society of N. Y. Hosp. v. Purdy, 58 Hun 386, 126 N. Y. 679; People ex rel. Blackburn v. Barton, 63 App. Div. 581; People ex rel. Missionary Sisters v. Reilly, 85 App. Div. 71, 178 N. Y. 609; People ex rel. Seminary of Our Lady of Angels v. Barber, 42 Hun 27; People ex rel. St. John’s Coll. v. Commissioners of Taxes, 10 Hun 246; Matter of Syracuse Univ., 124 Misc. 788, 214 App. Div. 375; Murdock v. Pennsylvania, 319 U. S. 105; Williams Institutional Colored M. E. Church v. City of New York, 275 App. Div. 311.) II. The case of People ex rel. Watchtower Bible & Tract Soc. v. Mastin (191 Misc. 899) is not stare decisis in this case because there have been vital, substantial and material reductions in the sale of surplus produce from the property which have changed the status of the property from 1947 to 1956 and on the points of the holding where the facts show no change they are immaterial and inapplicable. (People ex rel. Watchtower Bible & Tract Soc. v. Haring, 286 App. Div. 676.) III. The Appellate Division committed reversible error in holding that the exemption in the Tax Law is confined to production of foodstuffs on the same tract of land where all other exempt operations of the society are carried on and that the exemption does not extend to farming operations separated geographically from the place where such other exempt and chartered purposes are carried on. (People ex rel. Blackburn v. Barton, 63 App. Div. 581; People ex rel. Missionary Sisters v. Reilly, 85 App. Div. 71, 178 N. Y. 609; People ex rel. Seminary of Our Lady of Angels v. Barber, 42 Hun 27,106 N. Y. 669; People ex rel. Society of N. Y. Hosp. v. Purdy, 58 Hun 386,126 N. Y. 679.) IV. The Appellate Division committed reversible error when it interpreted the statute in such a way as to discriminate against institutions raising foodstuffs on lands located at a distance from the main institution and in favor of institutions raising foodstuffs on lands contiguous to the main institution, contrary to the equal protection clause of the Fourteenth Amendment to the United States Constitution and the Constitution of the State of New York. (Fowler v. Rhode Island, 345 U. S. 67; Skinner v. Oklahoma, 316 U. S. 535; Matter of Underhill v. Board of Appeals of Town of Oyster Bay, 273 App. Div. 788, 297 N. Y. 937.)

      Charles H. Newman for respondents.
    I. Constitutional guarantees of religious freedom and equal protection have no application to the case at bar. (Murdock v. Pennsylvania, 319 U. S. 105; Follett v. McCormick, 321 U. S. 573.) II. Facts supported by substantial evidence are not open to review after an affirmance by the Appellate Division. (Angelos v. Mesevich, 289 N. Y. 498; Aerated Prods. Co. v. Godfrey, 290 N. Y. 92; Le Roux v. State of New York, 307 N. Y. 397.) III. Delator’s farm in the Town of Lansing is not used for religious, educational or charitable purposes. (People ex rel. Watchtower Bible & Tract Soc. v. Mastin, 191 Misc. 899; People ex rel. Watchtower Bible & Tract Soc. v. Haring, 286 App. Div. 676.) IV. When an exempt corporation owns and operates a farm to provide food for paid employees working at its headquarters in a distant city, the farm is not being used exclusively for carrying out thereupon an exempt purpose. (Matter of Pace Coll. v. Boyland, 4 N Y 2d 528; People ex rel, Society of N. Y. Hosp. v. Purdy, 58 Hun 386, 126 N. Y. 679; People ex rel. Missionary Sisters v. Reilly, 85 App. Div. 71, 178 N. Y. 609; People ex rel. St. John’s Coll. v. Commissioners of Taxes, 10 Hun 246; People ex rel. Seminary of Our Lady of Angels v. Barber, 42 Hun 27,106 N. Y. 669; People ex rel. Blackburn v. Barton, 63 App. Div. 581; Syracuse Center of Jehovah’s Witnesses v. City of Syracuse, 163 Misc. 535; Matter of New York Conference Assn, of Seventh-Day Adventists v. Schenck, 275 App. Div. 742, 279 App. Div. 845, 304 N. Y. 706.) V. The Watchtower Society is primarily and essentially a profit-making business. Its emphasis on religion is a pretense designed to conceal its true purpose.
   Chief Judge Desmond.

These consolidated proceedings were brought to review the denial by the Assessors of Taxes of the Town of Lansing, Tompkins County, of exemption from realty taxes for the years 1954, 1955 and 1956 of relator’s 800-acre farm in the township. Delator claims the exemption under subdivision 6 of section 4 of the Tax Law (now Deal Property Tax Law, § 420), the pertinent part of which makes exempt from tax “ The real property of a corporation or association organized exclusively for * * * religious, bible, tract * * * purposes * * * and used exclusively for carrying out thereupon one or more of such purposes ”. The courts below rejected relator’s demands for exemption and dismissed the proceedings.

Relator, organized some 50 years ago as a membership corporation for general religious purposes such as the spreading of bible truths, missionary work and instruction of men and women in religion, is the governing body in the United States of the sect or religious group known as Jehovah’s Witnesses which has a membership in this country of some 180,000 persons. Its headquarters buildings in Brooklyn contain housing and boarding accommodations for teachers, students and clergymen as well as a printing plant from which millions of pieces of religious literature are sent throughout the world. The Tompkins County farm, the taxation of which is the subject matter of this proceeding, is far across the State from the Brooklyn establishment but it is undisputed that during the years here in question nearly all the farm produce was used for feeding the employees at the Brooklyn buildings and at a bible school conducted by relator in Tompkins County not on but near the lands here directly involved. Exhibits I, J and K show that in these three years the approximate percentages of produce thus used were respectively 92, 96 and 95. Despite this, the Referee held that the sales of these small food surpluses were separate activity and not merely “incidental” to the farm’s primary purpose of feeding the students, teachers, workers and members of the religious body.

The Appellate Division, in affirming the denial of exemption, did not make a direct finding as to whether the farm sales were incidental only but it did find (it is really undisputed) that nearly all the food produced was used as relator claims, and that only a small remainder was sold. We do not see how disposal of surpluses of this comparatively small size could in reason be held to be more than incidental and insubstantial. The finding to the contrary is not only opposed to the facts but it is inconsistent with the results reached in People ex rel. Society of N, Y. Hosp. v. Purdy (58 Hun 386, affd. 126 N. Y. 679) and Matter of New York Conference Assn. of Seventh-Day Adventists v. Schenck (275 App. Div. 742, affd. 304 N. Y. 706).

The Referee, as another reason for dismissal, had held that the farm “is not operated for educational and religious purposes, and is not a necessary adjunct for the religious functions of the petitioner or for carrying out the purposes of its incorporation. ’ ’ He thought the real test as to that was ' ' whether the operation of the farm is a part of the educational and religious program ”, and he found that it was not such a part. No justification appears for this part of the Referee’s holding and the Appellate Division apparently did not concur in it. The Referee seemed to base this particular conclusion on the failure of relator to prove that the members of this sect living and working at the farm and at the Brooklyn buildings are “ ministers of religion ” as that term is usually understood. What he apparently had in mind was the proof that these people do their evangelization and colportage after hours or on week ends, that they do not have the kind or extent of training usually provided for clergymen, that they make a small profit from the sale of books and other literature produced by relator, that some of them receive a small monthly allowance as well as board, lodging and clothing, and that relator itself derives from its printing and publishing activities a large profit which goes into its surplus and reserves. But none of those facts deprive the relator of the exemptions and benefits available to religious bodies. In Murdock v. Pennsylvania (319 U. S. 105, 111) the United States Supreme Court held as to this very sect that the mere fact that the religious literature is ‘ sold ’ by itinerant preachers rather than donated ’ does not transform evangelism into a commercial enterprise.” The Supreme Court reminded us in the Murdock opinion that “ a religious organization needs funds to remain a going concern.” We all know that religious and educational corporations publish and sell all sorts of literature in aid of the causes which the corporations serve. It is a new and inadmissible idea that an organization not organized for profit but for religious or educational purposes loses its status as such because out of the sale of books and pamphlets it makes a first profit which goes into its capital funds or because the distributors of the books make a tiny gain therefrom.

The Appellate Division in its Per Curiam opinion found a new reason for taxing this farm. Belying entirely on the word “ thereupon ” in subdivision 6 of section 4, the Appellate Division said that ‘ ‘ Although the printing operation in Brooklyn may be considered an exempt purpose ” the land used to produce the food to support the workers in that exempt purpose was not exempt from local real estate tax because of the fact that the land was so far removed from the Brooklyn buildings. The court recognized that there are many New York cases (People ex rel. Blackburn v. Barton, 63 App. Div. 581; People ex rel. Missionary Sisters v. Reilly, 85 App. Div. 71, affd. 178 N. Y. 609, and People ex rel. Seminary of Our Lady of Angels v. Barber, 42 Hun 27, affd. 106 N. Y. 669) involving religious and educational organizations in which an exemption was given for land used to grow food for students, teachers, members and employees of the organizations ’ ’. It reasoned, however, that it would be too great an extension of this statutory language to include farm lands remote from the building in which the primary educational or religious work was done. We see no ground for this distinction and it does not appear in any of the other New York decisions or in the statute itself. The well-known “ Doctors Hospital ” case (People ex rel. Doctors Hosp. v. Sexton, 267 App. Div. 736, affd; 295 N. Y. 553) emphatically denied any right of assessors to add requirements not found in the exemption law itself. Beliance on the word “ thereupon ” in subdivision 6 of section 4 is misplaced. The statute directs that exemption be allowed for all lands of a religious corporation used exclusively for carrying out a religious or similar purpose “ thereupon ”. Since in fact and according to all the New York cases prior to this one the growing of food for personnel is such a purpose, exemption for the food-growing area is mandated and in assessing it the town officers acted in excess of their jurisdiction.

Perhaps the best known of the New York cases on this subject of exempting farm lands used in connection with educational and religious activities is People ex rel. Seminary of Our Lady of Angels v. Barber (42 Hun 26 [1886], affd. by this court without opinion 106 N. Y. 669, supra). The General Term opinion in the Seminary case cited a number of earlier decisions exempting from real property taxation lands owned by educational groups but used for the production of food for teachers and students — even in instances where the students who used the food were paying tuition and other fees to the institutions. The tax statute of that day was similar to the modern one since it exempted buildings erected for the use of colleges and other institutions of learning and used for such purposes ‘ ‘ and the several lots whereupon such buildings so used are situated”. In the Seminary litigation the taxing authorities argued to the court as a supposed bar to exemption that the farm lands were separated from the educational buildings by railroad tracks. The court refused to accept so strict a construction and, holding (42 Hun, supra, p. 30) that the statute was “ entitled to such a construction as will permit it to serve the-purposes in view ’ ’, ruled that in order to be entitled to exemption the land need only be devoted to no use other than that which is necessary or fairly incident to the uses and purposes of the institution. The only possible differences between the Seminary case and the present one are that the farm land in the cited case was nearer to the educational buildings than in our case, and that all the farm crops in the Seminary case were used by the faculty, students and employees of the seminary. Such immaterial differences cannot justify restrictive application of a public policy statute like this one. As the General Term said in the Seminary case (42 Hun 26, 30): “ The policy of the law has been, in this State from an early day, to encourage, foster and protect corporate institutions of religious and literary character, because the religious, moral and intellectual culture afforded by them were deemed, as they are in fact, beneficial to the public, necessary to the advancement of civilization, and the promotion of the welfare of society. And, therefore, those institutions have been relieved from the burden of taxation by statutory exemption.” The same idea was restated a few years ago by the First Department in Williams Institutional Colored M. E. Church v. City of New Yorh (275 App. Div. 311, 313): the basis for tax exemption in New York is the performance of “ services which by the settled public policy of the State * * * are of such importance as to require or justify [tax] exemption”. That policy has been carried down into decisions of our own day. In Matter of Pace Coll. v. Boyland (4 N Y 2d 528, 532) we said, citing the Seminary case with approval: “ Furnishing of meals to students, faculty and staff on college premises is recognized as entering into their use for educational purposes, nor does it customarily disturb full tax exemption

While an exemption statute is to be construed strictly against those arguing for nontaxability (People ex rel. Mizpah Lodge v. Burke, 228 N. Y. 245), the interpretation should not be so narrow and literal as to defeat its settled purpose, which in this instance is that of encouraging, fostering and protecting religious and educational institutions. Such high and traditional purposes should not require for their attainment that religious schools plow their surplus crops back into the ground or move their farms alongside their halls of learning or their halls of learning into farming areas.

Many more cases could be cited to show a uniform trend and approach in these matters. One of them (Temple Grove Seminary v. Cramer, 98 N. Y. 121) reminds us of simpler days of yore in its holding that the renting out of school buildings as a summer boarding place did not destroy exemption rights. In the Clarkson College litigation (People ex rel. Clarkson Mem. Coll. v. Haggett, 274 App. Div. 732, affd. 300 N. Y. 595) we held that this same subdivision 6 of section 4 of the Tax Law as matter of law exempted from taxation buildings purchased by Clarkson College not located on the college campus proper and rented by the college to faculty members as well as to students. It was our view that such use was incident to the primary educational purpose of the institution. The decisions below in the present case cannot be squared with this long line of New York precedents or with the settled policy which they express. The courts below have held that tax exemption is to be refused here because strictly educational activities were not conducted on the farm property, but the same was true to greater or less degree in the Seminary case, the Clarkson case, and others. Nothing should turn on the fact that a small part (5% to 10%) of the farm produce was here sold as surplus (a larger proportion of the harvest was sold in Matter of New York Conference Assn. of Seventh-Day Adventists v. Nutt, 279 App. Div. 845, affd. 304 N. Y. 706). Historically and in reason, the only test is whether the farm operation is reasonably incident to the major purpose of its owner. There can be no doubt about that here.

In another of the old cases (Hebreu, Free School Assn. v. Mayor of City of New York, 4 Hun 446, 450) the General Term said of a similar tax exemption statute that it should be read so as to cover any society “ whose organization and object should be of the benevolent, charitable or missionary character, falling within the general sense of the term ‘ religious ’ as contradistinguished from private and secular institutions.” That will serve as an answer to the argument made or suggested here that the somewhat rudimentary training of these Witnesses and the unorthodox character of their religious beliefs and practices remove them from the beneficent aim and coverage of this statute.

The order should be reversed and the prayer of the petitions granted, with costs.

Judges Dye, Fuld, Froessel and Burke concur with Chief Judge Desmond; Judges Van Voorhis and Foster dissent and vote to affirm.

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


text:
    Aetna Casualty and Surety Company, Appellant, v. Thomas P. O’Connor et al., Respondents.
    Argued October 6, 1960;
    decided November 17, 1960.

      Joseph Fennelly and William S. O’Connor for appellant.
    I. Rescission exists under the Assigned Risk Plan. (Cleveland v. Town of Lancaster, 239 App. Div. 263; Bertles v. Nunan, 92 N. Y. 152; Matter of Ryan, 291 N. Y. 376; Williams v. Williams, 8 N. Y. 525; La Rocca v. John Hancock Mut. Life Ins. Co., 286 N. Y. 233; Hartford Acc. & Ind. Co. v. Breen, 2 A D 2d 271; Matter of Ohlson v. Mealey, 179 Misc. 13.) II. Plaintiff is entitled to rescission of the policy because of O’Connor’s misrepresentation of material facts. (Tolar v. Metropolitan Life Ins. Co., 297 N. Y. 441; Home Life Ins. Co. v. Kupfer, 281 App. Div. 685; Metropolitan Life Ins. Co. v. Goldsmith, 201 Misc. 569; Geer v. Union Mut. Life Ins. Co., 273 N. Y. 261.) III. Defendants Hamiltons ’ rights are no greater than defendant O’Connor’s. (Coleman v. New Amsterdam Cas. Co., 247 N. Y. 271; Gerka v. Fidelity & Cas. Co., 251 N. Y. 51; Rushing v. Commercial Cas. Ins. Co., 251 N. Y. 302; Birnbaum v. Pamoukas S Preferred Acc. Ins. Co., 301 Mass. 559.)

      Harold M. Harkavy, Fred Gardner and Frederick M. Garfield for respondents.
    An assigned risk policy obtained through fraud or misrepresentation cannot be rescinded, the only remedy available to the insurer in such case being the right of cancellation. (Salzmán v. Prudential Ins. Co., 296 N. Y. 273; Bakker v. Ætna Life Ins. Co., 264 N. Y. 150; Lauritano v. America,n Fid. Fire Ins. Co., 3 A D 2d 564, 4 N Y 2d 1028; Matter of Mencher

      [Getter & Sons], 276 App. Div. 556; Zimmermann v. Roessler & Hasslacher Chem. Co., 246 App. Div. 306, 272 N. Y. 566; Nicoll v. Sands, 131 N. Y. 19; Taber v. First Citizens Bank & Trust Co., 247 App. Div. 580, 273 N. Y. 539; Insurance Co. v. Dutcher, 95 U. S. 269; Reid v. Sprague, 72 N. Y. 457; Kelley v. Indemnity Ins. Co. of North America, 252 App. Div. 58, 276 N. Y. 606.) •
   Fuld, J.

The question for decision, one of first impression in this court, is this: Does the New York Automobile Assigned Risk • Plan of insurance, which in explicit terms provides only for prospective cancellation, abrogate the insurer’s common-law right to void a policy from its inception on the ground that it had been obtained through fraud or misrepresentation?

The facts are undisputed. In his application for insurance under the New York Automobile Assigned Risk Plan, Thomas O’Connor falsely stated that he had not been convicted of any non-vehicular offense within the preceding three-year period. He had actually been twice convicted of disorderly conduct and twice of public intoxication, a fact which rendered him ineligible for insurance under the Plan. Following its execution, 0 ’Con-nor’s application was forwarded to the Assigned Risk Plan which assigned the risk to the Aetna Casualty and Surety Company. The latter, relying on O’Connor’s misrepresentation, issued a policy for one year on June 8, 1955 and, shortly thereafter, it conducted an investigation which failed, however, to uncover the prior convictions.

On March 4, 1956, while the policy was still in force, O’Con-nor’s automobile was involved in an accident causing damage to a car belonging to Millie Hamilton and personal injuries to Perley Hamilton. Receipt of a report of the accident initiated an investigation during the course of which Aetna discovered the existence of the insured’s four prior convictions. It thereupon informed the Hamiltons that it would decline coverage on the policy and notified O’Connor that it elected to rescind his policy, to void it from its inception. This action, in which O’Connor and the Hamiltons were joined as defendants, was then brought by Aetna for a declaratory judgment. The courts below decided the case in favor of the defendants, holding that, although the insurer had the right to cancel under the Plan, it did not have the right to rescind.

The ease obviously turns on the construction to be accorded the Plan. And such construction calls not for the mechanical application of overly abstract principles of statutory interpretation, but rather for a painstaking reading of the Plan in the light of the circumstances surrounding its adoption. If the Plan bespeaks a design to provide a detailed and comprehensive set of regulations governing the rights and liabilities of the parties entering into assigned risk insurance contracts, the carrier may not void the policy from its inception since that remedy is not provided by the Plan. If, on the other hand, the Plan is merely a collection of separate provisions, covering but a few unrelated aspects of the legal relation between carrier and insured, then, it may only be taken to supplement, not supplant, our common-law rules relating to insurance contracts, and in such case the insurer may rescind ab initio and be relieved of any liability on the policy.

In 1946, the Legislature faced the problem of making ‘' automobile bodily injury and property damage liability insurance available to motorists unable to obtain coverage through normal channels ” because of their status as poor risks”. (See Smith, The New York Automobile Assigned Risk Plan, appearing in vol. 4 of Examination of Insurance Companies, pp. 453, 456, published by the New York State Insurance Department in 1954; cf. California Auto. Assn. v. Maloney, 341 U. S. 105, 106-107.) Its solution, in section 63 of the Insurance Law, was an authorization to the Superintendent of Insurance to adopt, after consultation with insurers, a plan “ for the equitable apportionment among * * * insurers of applicants for such insurance who are in good faith entitled to but are unable to procure insurance through ordinary methods ’ ’, and to make participation in such a plan compulsory for all New York insurers.

The very condition for which the legislative remedy was sought and the very tenor of the statute authorizing the Plan provide initial indications of its comprehensive character. Manifestly, nothing would be gained by compelling insurance carriers to issue insurance to individuals otherwise unable to obtain a policy if the conditions under which the insurance could be cancelled or avoided were not also the subject of regulation. The compulsory character of the carrier’s participation in the Plan and the very need for the legislation suggest a concern for the entire range of duties and obligations which comprise the assigned risk insurance contract instead of a concentration on isolated aspects of the contractual relationship.

The Plan itself furnishes a number of signposts pointing the same direction as do both the legislative background and the language of the statute. To begin with, and it is highly significant, the Plan is broad in scope, containing 22 sections, one devoted to a statement of its purposes (§1), another to its administration (§ 4), a third to the extent of coverage provided (§ 10) and others to the form of notice to applicants (§ 14), rates (§ 17), cancellations (§ 18), right of appeal (§19) and re-eligibility (§ 20). The very range of the subjects included reflects a design to supply an exclusive and comprehensive scheme of regulation of the contractual relationship concerned.

Furthermore, turning to the specific issue involved on this appeal, we find that a number of the individual provisions of the Plan imply an intention to limit the insurer, if fraud and misrepresentation be charged, to the right to cancel on 10 days’ notice as specified in section 18, an intention, in other words, to abrogate the common-law right to rescind on the ground of fraud or misrepresentation. Section 1 of the Plan, for instance, describes its purposes as being “ To make automobile bodily injury and property damage liability insurance available subject to the conditions hereinafter stated.” Had the right to cancel been considered a mere supplement to the insurer’s common-law right of termination instead of an exclusive remedy, the drafters of the Plan would hardly have provided that liability insurance was being made available “ subject to the conditions hereinafter stated.”

The provisions of section 19, concerning the right to appeal, and of section 20, dealing with re-eligibility, lend further support to our conclusion. Section 19, in order to effectuate the legislative desire to compel insurers to provide insurance for those “ unable to procure [it] through ordinary methods ”, sets up an elaborate system of appeal for “An applicant denied insurance or an insured given notice of cancellation of insurance under the Plan ”. It was obviously felt that the Plan would fail of its purpose unless administrative control and regulation of termination of insurance contracts, as well as of their issuance, were provided through a system of appeal. A right to an administrative appeal, however, is limited by the language of section 19 to “ an insured given notice of cancellation of insurance under the Plan ’ ’. It seems unreasonable, indeed, inconsistent with the Plan’s apparent policy, to suppose that, if assigned risk insurance could be rescinded as well as cancelled, only those parties whose insurance was cancelled would have the right to an administrative appeal. The limitation of appeal to a case where an insured is “ given notice of cancellation ” serves to confirm the conclusion that this right to cancel was designed as a substitute for, not an addition to, the common-law right of rescission. Likewise, the only reasonable explanation for the fact that, while section 20' of the Plan provides that ‘ ‘ An assigned risk cancelled under the provisions of the Plan shall not be eligible to reapply for assignment until 12 months after the effective- date of cancellation”, it is silent concerning re-eligibility in the case of termination not covered by the Plan, is that cancellation was intended to be the sole means of terminating such contracts of insurance.

That there is no right to rescind the assigned risk policy does not mean that the carrier is deprived of all reasonable redress against the insured who misrepresents material facts in order to obtain coverage, since the Plan expressly provides for cancellation under these circumstances. The effect of the Plan is to enforce upon the insurer the necessity to discover fraud at the earliest possible moment, before an accident occurs and the rights of innocent injured third parties have intervened. In this respect, the Plan merely reflects the oft-repeated legislative recognition that liability insurance is not the concern solely of the insured and his insurer. (See, e.g., Insurance Law, § 167, subd. 1, par. [d]; Vehicle and Traffic Law, § 345, subd. [i], par. [1]; Lauritano v. American Fid. Fire Ins. Co., 3 A D 2d 564, 567-568, affd. 4 N Y 2d 1028.)

Aetna did, in this case, actually conduct an early investigation of O’Connor and, if that investigation had been performed properly, the insured’s misrepresentation would have been discovered and Aetna could have cancelled, pursuant to section 18 of the Plan, long before the Hamiltons were injured. While, therefore, Aetna may ultimately be held on a policy obtained by fraud, its liability is in a very real sense attributable to its own fault, and the true beneficiary is not the wrongdoer, but his innocent victims.

The judgment of the Appellate Division should be affirmed, with costs to respondents Hamilton.

Chief Judge Desmond and Judges Dye, Froessel, Van Voorhis, Burke and Foster concur.

Judgment affirmed.

      . Section 18, entitled “Cancellations”, reads in part as follows:
      "A earner which has issued a policy or binder under this Plan, shall have the right to cancel the insurance by giving notice as required in the policy or .binder if the insured * * •
      “(4) has obtained the insurance through fraud or misrepresentation ”, ,


author: Burke, J. Van Voorhis, J. (dissenting).

text:
    Lawrence A. Baker et al., Appellants, v. Stephen L. Marley et al., Respondents.
    Argued October 13, 1960;
    decided November 30, 1960.

      Edward B. Neaher for appellants.
    I. Section 332 of the Village Law unconditionally prohibited defendant Mayor’s participation in the resolutions and official actions complained of.
      (Smith v. City of Albany, 61 N. Y. 444; People ex rel. Schenectady Illuminating Co. v. Board of Supervisors of County of Schenectady, 166 App. Div. 758; Matter of Clarke v. Town of Russia, 283 N. Y. 272; Matter of Jackson, 231 App. Div. 838; Matter of Moran, 145 App. Div. 642; Heughes v. Board of Education, 37 App. Div. 180; Beebe v. Board of Supervisors of Sullivan County, 64 Hun 377, 142 N. Y. 631; Matter of Village of Monticello, 123 Misc. 556.) II. The village hoard’s resolutions and actions in which the Mayor took part contrary to section 332 are wholly illegal and void. (Miller v. Ammon, 145 U. S. 421; Pyatt v. Mayor & Council of Dunellen, 9 N. J. 548.) III. Defendants ’ documentary evidence did not establish a complete defense, as a matter of law, entitling them to summary judgment. (O’Mara v. Dentinger, 271 App. Div. 22; Beekman v. Frost, 18 Johns. 544; Massachusetts Nat. Bank v. Shinn, 163 N. Y. 360; Leahy v. Brooklyn Waterfront Term. Corp., 272 App. Div. 781; Curry v. Mackenzie, 239 N. Y. 267; Odell v. Town of Carmel, 8 N Y 2d 743; Matter of Incorporated Vil. of Hempstead, 207 Misc. 402.)

      Douglas E. Dayton and Richard B. Lillich for respondents.
    I. The Mayor has not acted ‘ ‘ as such in any matter or proceeding-involving the acquisition of real property then owned by him for a public improvement ”. (People ex rel. Mershon v. Shaw, 34 App. Div. 61; Holy Trinity Church v. United States, 143 U. S. 457; Brustein v. New Amsterdam Cas. Co., 255 N. Y. 137; Cluett, Peabody ds Co. v. J. W. Mays, Inc., 5 A D 2d 140.) II. Neither common law nor statute disqualifies the Mayor from acting in this ease. (Wilcox v. Royal Arcanum, 210 N. Y. 370; Matter of Hicks Development Corp. v. Incorporated Vil. of Lawrence, 282 App. Div. 1048, 306 N. Y. 922; Ambassador Management Corp. v. Incorporated Vil. of Hempstead, 186 Misc. 74, 270 App. Div. 898, 296 N. Y. 666, 330 U. S. 835; Matter of Incorporated Vil. of Hempstead, 207 Misc. 402; Smith v. City of Albany, 61 N. Y. 444; People ex rel. Schenectady Illuminating Co. v. Board of Supervisors of County of Schenectady, 166 App. Div. 758; Matter of Clarke v. Town of Russia, 283 N. Y. 272; Kaskel v. Impellitteri, 306 N. Y. 73; Stahl Soap Corp. v. City of New York, 5 N Y 2d 200.) III. If the Mayor’s actions are deemed improper, this would not vitiate the acts of an otherwise duly constituted quorum. (People ex rel. Kingslander v. Palmer, 52 N. Y. 83.) IV. Appellants state no cause of action under section 51 of the General Municipal Law. (Rogers v. O’Brien, 153 N. Y. 357; Altschul v. Ludwig, 216 ,N. Y. 459; Western N. Y. Water Co. v. City of Buffalo, 242 N. Y. 202.)
   Burke, J.

The defendant Marley, Mayor of the Village of East Hampton, Long Island, participated in meetings of the Board of Trustees which adopted resolutions leading to the condemnation of various parcels of real property, including one owned by the Mayor and others.

The plaintiffs ’ complaint, filed in an action brought under the provisions of section 51 of the General Municipal Law to have the resolutions declared void, has been dismissed.

The legality of the board’s actions depends on the applicability of section 332 of the Village Law. That section provides, inter alia, that a village official shall not act as such in any ‘ ‘ matter or proceeding involving the acquisition of real property then owned by him for a public improvement ’ ’. The Appellate Division held that the section was inapplicable to the actions of the board since they were merely preliminary to ‘ ‘ the technical commencement, as defined in the statute, of a proceeding to acquire real property for a parking lot ”.

We read the statute differently. The term “matter or proceeding ’ ’, in our opinion, embraces the acts which the Board of Trustees performed in connection with the condemnation proceedings. These actions included the authorization of preliminary studies, surveys and estimates, the determination of the manner in which the property would be taken, the fixing of compensation, the distribution of the cost, the approval of the acquisition map, and the specification of assessment areas. Each of these decisions of the board involved the Mayor in conflicts of interest which the Legislature intended to prevent. The participation of the Mayor was a violation of the statute, consequently the resolutions and acts of the board were illegal (cf. Matter of Clarke v. Town of Russia, 283 N. Y. 272). In such a case, “ [p]ublic policy forbids the sustaining of municipal action founded upon the vote of a member of the municipal governing body in any matter before it which directly or immediately affects him individually” (Pyatt v. Mayor & Council of Borough of Dunellen, 9 N. J. 548, 557). Therefore, the resolution and other actions of the board relating to the condemnation must be declared void, even though the vote of the Mayor was not necessary, a majority being sufficient (Beebe v. Board of Supervisors of Sullivan County, 64 Hun 377, affd. 142 N. Y. 631).

The judgment should be reversed, with costs in all courts, and defendant’s motion for summary judgment denied.

Van Voorhis, J. (dissenting).

It seems to me that the Appellate Division was right in construing section 332 of the Village Law, under the circumstances of this case, so as not to prevent the making of what is apparently a desirable public improvement. The ownership by the Mayor of an interest of less than 1% in the property to be condemned for a municipal parking lot was accidental, and he has agreed to donate to the village the approximately $253 which would otherwise be coming to him on account of the public talcing of this property. The circumstance that he had this small interest is evidently being utilized by persons who wish to block this project for other reasons. A majority of the Village Board have voted in favor of it without counting the vote of the Mayor, his slight personal interest was wholly coincidental, and he agrees to make a present to the village of whatever ownership he has in this parcel. It is usually regarded as desirable for local public officers to have some stake in their communities. Nobody contends that the slight interest of the Mayor of Bast Hampton has influenced the undertaking of this project, which has been authorized and approved by the other members of the board. The dismissal of the complaint should be affirmed.

Chief Judge Desmond and Judges Dye, Fuld, Froessel and Foster concur with Judge Burke ; Judge Van Voorhis dissents in a separate opinion.

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