author: Simons, J.

text:
    In the Matter of Charles E. Schumer, Appellant-Respondent, v Elizabeth Holtzman, as District Attorney of Kings County, et al., Respondents-Appellants.
    Argued August 29, 1983;
    decided September 15, 1983

      POINTS OF COUNSEL

      Arthur L. Liman, Colleen McMahon, Todd D. Stern and Craig H. Solomon for appellant-respondent.
    I. The District Attorney is disqualified from participating in this case. (Cardinale v Golinello, 43 NY2d 288; People v Fielding, 158 NY 542; King v Retz, 115 Misc 2d 836; People v Krstovich, 72 Misc 2d 90; People v Shinkle, 51 NY2d 417; People v Zimmer, 51 NY2d 390; People v Cassidy, 118 Misc 2d 110; People v Schrager, 74 Misc 2d 833.) II. Since respondent Holtzman is disqualified, her only recourse is to apply for appointment of a special prosecutor under section 701 of the County Law. (Johanns v Ficke, 224. NY 513; Chase Manhattan Bank [National Assn.], Bank Americard Div. v Hobbs, 94 Misc 2d 780.)

      Elizabeth Holtzman, District Attorney (.Barbara D. Underwood and Peter A. Weinstein of counsel), for respondent-appellant pro se, and for another respondent-appellant.
    I. The extraordinary remedy of prohibition is not available to challenge the power of the District Attorney, or an Assistant District Attorney appointed by her, to pursue this investigation. (Matter of McGinley v Hynes, 51 NY2d 116, 450 US 918; Matter of Morgenthau v Erlbaum, 59 NY2d 143; Matter of Brunswick Hosp. Center v October 1979 Grand Jury, 51 NY2d 975; Matter of Tyler v Polsky, 57 AD2d 422; Matter of Additional Jan. 1979 Grand Jury of Albany Supreme Ct. v Doe, 50 NY2d 14; Matter of Mann Judd Landau v Hynes, 49 NY2d 128; Matter of Dondi v Jones, 40 NY2d 8; Toker v Poliak, 44 NY2d 211; Matter of State of New York v King, 36 NY2d 59; Matter of Nigrone v Murtagh, 36 NY2d 421.) II. The District Attorney is not disqualified from conducting this investigation. (People v Fleschner, 69 AD2d 827; People v Rupp, 75 Misc 2d 683; Matter of Board of Supervisors of Montgomery County v Aulisi, 46 NY2d 731; International Electronics Corp. v Flanzer, 527 F2d 1288; Board of Educ. v Nyquist, 590 F2d 1241; Armstrong v McAlpin, 625 F2d 433, 449 US 1106; Silver Chrysler Plymouth v Chrysler Motors Corp., 370 F Supp 581, 518 F2d 751; United States v Newman, 534 F Supp 1113; People v Shinkle, 51 NY2d 417; People v Zimmer, 51 NY2d 390.) III. The District Attorney’s appointment of Dean Trager as an Assistant District Attorney does not constitute an illegal delegation of authority and, in any event, is not reviewable in an article 78 proceeding. (Matter of Forte v Supreme Ct. of State of N. Y., 48 NY2d 179; Matter of Morgenthau v Erlbaum, 59 NY2d 143; Matter of McGinley v Hynes, 51 NY2d 116; Matter of Dondi v Jones, 40 NY2d 8; Cacace v Seniuk, 104 Misc 2d 560; Jones v Beame, 45 NY2d 402; People v Di Falco, 44 NY2d 482; People v Eboli, 34 NY2d 281; United States v Schipani, 289 F Supp 43; United States v O’Brien, 391 US 367.)
   OPINION OF THE COURT

Simons, J.

In this article 78 proceeding, petitioner challenges the appointment by respondent Holtzman, the District Attorney of Kings County, of respondent Trager, Dean of Brooklyn Law School, as a special prosecutor to investigate and prosecute him for alleged criminal activities arising from his 1980 election as a member of Congress. Special Term held that the appointment was void and it also declared that respondent Holtzman was disqualified from proceeding against petitioner. The Appellate Division agreed that the appointment was void but it found that respondent Holtzman was not disqualified and modified the judgment by striking Special Term’s contrary finding that she was. On the parties’ cross appeals, we hold that petitioner may maintain this article 78 proceeding, that the written agreement between respondents formalizing respondent Trager’s appointment is void, and that his appointment pursuant to it is invalid. We further hold that the courts below erred in considering and determining the disqualification issue.

Petitioner is a United States Congressman and a former member of the New York State Assembly. In 1980, while a member of the Assembly, he sought and was elected to the congressional seat formerly held by respondent Holtzman. Shortly after the election, articles appeared in the newspapers concerning petitioner’s allegedly improper use of State employees during the congressional campaign. The United States Attorney investigated the charges, but the Justice Department determined that the matter was not appropriate for Federal prosecution. Respondent Holtzman, by then the District Attorney of Kings County, decided local officials should pursue the charges. Because she believed she might be accused of bias or the appearance of bias against petitioner based upon past political differences with him and because she thought some of her former congressional staff might be witnesses in such an investigation, she asked Governor Cuomo to supersede her under the power granted him by subdivision 2 of section 63 of the Executive Law. When the Governor refused to do so, she appointed respondent Trager as a “Special Assistant District Attorney” and, in a written memorandum of understanding, gave him broad powers to control the investigation and prosecution.

Petitioner then instituted this article 78 proceeding challenging the appointment and requesting that the court (1) order respondent Holtzman to “rescind” the appointment and (2) prohibit respondent Trager from undertaking his duties. Petitioner also claimed at Special Term that the appointment was made because of respondent Holtzman’s publicly professed “disqualification” from acting and that the appointment of special assistants to act in cases of disqualification must be made by the court pursuant to section 701 of the County Law, not by the District Attorney.

Initially, we note that the District Attorney is a constitutional officer chosen by the electors of a county (NY Const, art XIII, § 13) and charged by statute with the duty of conducting “all prosecutions for crimes and offenses cognizable by the courts of the county for which [s]he shall have been elected” (County Law, § 700). She may appoint, and at pleasure remove, Assistant District Attorneys to assist in the performance of that duty (County Law, § 930; see, also, County Law, § 702), and if the District Attorney is disabled from acting or if she is disqualified in a particular case, the court may appoint a “special district attorney” to act during her disability or disqualification (County Law, § 701). A Special District Attorney appointed by the court pursuant to section 701 supersedes the District Attorney. He possesses all the powers and may discharge all the duties of the office during the term of the appointment. Section 930 does not contain any similar provision. Assistants appointed by the District Attorney pursuant to that section are subordinates.

This dispute arises from the memorandum of understanding executed by respondents. Although the District Attorney purported to exercise the power to hire subordinates when she hired respondent Trager, the memorandum delegated to him broad discretion and power to conduct the investigation and determine the course of the prosecution. Petitioner contends, therefore, that the memorandum and the appointment pursuant to it are void because the delegation exceeded the District Attorney’s powers and that he is entitled to an order of prohibition.

Respondents contend that the extraordinary remedy of prohibition is not available to petitioner to challenge her power prior to the filing of an accusatory instrument and that Special Term and the Appellate Division improperly considered the question of her disqualification.

It is familiar law that an article 78 proceeding in the nature of prohibition will not lie to correct procedural or substantive errors of law, nor may it issue against legislative, executive or ministerial action (Matter of Morgenthau v Erlbaum, 59 NY2d 143, 147; Matter of Dondi v Jones, 40 NY2d 8, 13). Prohibition may be maintained solely to prevent or control a body or officer acting in a judicial or quasi-judicial capacity from proceeding or threatening to proceed without or in excess of its jurisdiction (Matter of Morgenthau v Erlbaum, supra; Matter of McGinley v Hynes, 51 NY2d 116,123-124, cert den 450 US 918; Matter of Nicholson u State Comm. on Judicial Conduct, 50 NY2d 597, 606) and then only when the clear legal right to relief appears and, in the court’s discretion, the remedy is warranted (Matter of Morgenthau v Erlbaum, supra; Matter of Dondi v Jones, supra). Thus, customarily, the proceeding is initiated to control or inhibit courts or Judges. We have held, however, that a public prosecutor may also be subject to prohibition under certain circumstances (Matter of B. T. Prods. v Barr, 44 NY2d 226, 232; Matter of Dondi v Jones, supra; and see Matter of McGinley v Hynes, 51 NY2d 116, supra). When a prosecutor represents the public in bringing those accused of crime to justice, he may be viewed as performing a quasi-judicial function and properly be subject to an article 78 proceeding in the nature of prohibition (Matter of B. T. Prods. v Barr, supra; Matter of Dondi v Jones, supra; Matter of Simonson v Cahn, 27 NY2d 1; Matter of Nolan v Court of Gen. Sessions, 15 AD2d 78, affd 11 NY2d 114; Matter of Potenza v Kane, 79 AD2d 467, mot for lv to app den 53 NY2d 606). For example, prohibition has been granted to avoid double jeopardy (Matter of Simonson v Cahn, supra; Matter of Nolan v Court of Gen. Sessions, supra; Matter of Potenza v Kane, supra), to prevent prosecution by a special prosecutor of crimes which exceed the authority granted (Matter of Dondi v Jones, supra), and to prohibit retention of goods seized under a search warrant obtained by a special prosecutor in an investigation which was beyond his jurisdiction (Matter of B. T. Prods. v Barr, supra).

The conduct challenged here is not the appointment of respondent Trager per se, but his appointment pursuant to the memorandum of understanding which clothed him with extensive discretionary power to determine whom, whether and how to prosecute in the Schumer matter, power which is normally possessed only by an elected District Attorney (see People v Zimmer, 51 NY2d 390, 399; Matter of McDonald v Goldstein, 191 Misc 863, affd 273 App Div 649; People v Krstovich, 72 Misc 2d 90).

The memorandum of understanding provides that respondent Trager shall have: “full authority and responsibility to investigate, to determine whether to prosecute, and to prosecute any person for any offense arising out of, related to, or in any way connected with the conduct of Charles Schumer, his staff or any other person in connection with his 1980 campaign for election to the United States Congress while he was a member of the Assembly of the State of New York.” To facilitate performance of these duties, the memorandum granted him “all necessary authority * * * including but not limited to” the authority to investigate, to appear before Grand Juries and conduct Grand Jury proceedings, to seek Grand Jury reports, to have full access to obtain and review all documents from any source, to grant immunity, obtain warrants, subpoenas and court orders, to decide whom to prosecute and whether to prosecute, to frame and file accusatory instruments and handle all aspects of cases within his jurisdiction (whether initiated before or after his assumption of duties), including appeals.

The memorandum provided further that in exercising the authority granted, respondent Trager “will have the greatest degree of independence that is consistent with the District Attorney’s statutory accountability. Insofar as consistent with that accountability, the District Attorney will not overrule or interfere with the Special Assistant District Attorney’s decisions or actions.” Moreover, respondent Holtzman promised that “[t]he Special Assistant District Attorney will not be removed from his duties except for extraordinary impropriety or for any disability which prevents him from fulfilling his responsibilities under this agreement.”

The agreement then went on to grant the Special Assistant District Attorney broad and largely unrestrained authority to hire and fire his staff and subject them to his direction only, to determine upon and issue public statements of his activities as he deems appropriate and to establish his own budget.

The memorandum manifestly attempts to divest respondent Holtzman of her discretionary judgment to initiate, pursue ant 5 conclude investigations and prosecutions and to set up ::n independent prosecutor to handle all aspects of the Schumer matter. The powers of the District Attorney, however, are conferred upon her by statute (see County Law, § 700; People v Di Falco, 44 NY2d 482, 487). She may delegate duties to her assistants but she may not transfer the fundamental responsibilities of the office -to them. Such a transfer may be accomplished only by executive or court order (see Executive Law, § 63, subd 2; County Law, § 701). To the extent that the District Attorney attempted to circumscribe the unlawful grant by reference in the memorandum to section 930 of the County Law and by the statement that the authority granted was limited to a grant “consistent with the District Attorney’s statutory accountability”, we give no effect to that language and read the memorandum to mean what the parties obviously intended it to mean: that the appointee was to have a free hand in all aspects of the Schumer matter.

Without conceding the invalidity of the appointment, respondents contend, that prohibition is not available when the matter is still in the investigative or preaccusatory stage (see Matter of McGinley v Hynes, 51 NY2d 116, 123-124, supra). This proceeding, however, does not challenge investigative activities of the prosecutor as such. It challenges the memorandum of understanding, a single, integrated agreement which lumps together both the investigative and accusatorial activities in the Schumer matter and delegates power over all phases of them to a special assistant. Nothing we said in McGinley suggests that prohibition is not available to void such an unlawful delegation of the power to direct and control a criminal prosecution.

Finally, respondents urge that prohibition should not be available to prevent the investigation before it even starts. The short answer to that contention is that we are not stopping the District Attorney from pursuing her duties. She or her subordinates may exercise all the powers of her office to investigate and, if the evidence warrants it, to prosecute petitioner or those involved with him. Just as prohibition is an appropriate remedy to void the improper appointment of a prosecutor when made by a court (see, generally, Matter of Board of Supervisors v Aulisi, 62 AD2d 644, affd 46 NY2d 731; Matter of Wilcox v Dwyer, 73 AD2d 1016), it will also lie to void an ultra vires appointment by the District Attorney.

Respondent Trager’s lack of jurisdiction being apparent, he should not be permitted to proceed pursuant to the memorandum when a future challenge to his conduct is inevitable. Permitting him to do so will only result in duplication of expense and effort and harassment of petitioner. Accordingly, the courts below properly exercised their discretion and granted the order of prohibition.

Insofar as the ruling on disqualification is concerned, petitioner alleges that respondent Holtzman is violating canon 9 of the Code of Professional Responsibility and that her continuing participation in the investigation presents an appearance of impropriety, as her public statements attest, which requires disqualification as a matter of law. He contends that the ethical propriety of her conduct is sufficiently presented for decision in this prohibition proceeding, regardless of its form, and the court should rule on it (see CPLR 103, subd [c]). We disagree. A court may intervene to disqualify an attorney only under limited circumstances. Particularly is this so in the case of a District Attorney who is a constitutional officer chosen by the electorate and whose removal by a court implicates separation of powers considerations. Moreover, premature applications are not to be encouraged because they are wasteful and may be employed as delaying tactics. That the parties waived the procedural irregularities below in an effort to obtain a prompt resolution of the issue is not controlling. They may not confer power upon the court to pass on the merits.

Furthermore, the conditions petitioner raises do not come within that narrow area in which a court may consider whether counsel should be removed from a particular case. The courts, as a general rule, should remove a public prosecutor only to protect a defendant from actual prejudice arising from a demonstrated conflict of interest or a substantial risk of an abuse of confidence (e.g., People v Zimmer, 51 NY2d 390, supra; People u Shinkle, 51 NY2d 417, 421) and the appearance of impropriety, standing alone, might not be grounds for disqualification. The objector should demonstrate actual prejudice or so substantial a risk thereof as could not be ignored. The Federal courts have adopted similar rules. They have held that there may be disqualification for the appearance of impropriety (1) if an attorney’s conflict of interest in violation of canons 5 and 9 of the Code of Professional Responsibility undermines the court’s confidence in the vigor of the attorney’s representation of his client, or (2) where the attorney is at least partially in a position to use privileged information concerning the other side through prior representation, thus giving his client an unfair advantage (see Armstrong v McAlpin, 625 F2d 433,444; Board of Educ. v Nyquist, 590 F2d 1241, 1246; United States v Newman, 534 F Supp 1113).

There is not yet any basis for deciding whether the present situation meets these criteria and calls for judicial action. The embarrassment of respondent Holtzman or the fact that she may be accused of a vendetta because of prior political differences are considerations which she must weigh in either proceeding with the matter herself or moving for the judicial appointment of a special prosecutor. They are not reviewable by the court in this proceeding, however, merely because the District Attorney has publicly expressed some anxiety over a possible appearance of impropriety. Similarly, it is not now apparent that her former employees will be implicated in the investigation, thus possibly forcing her to take inconsistent positions, or if so, whether the inconsistency would be disabling. In sum, the application for disqualification was premature and not justiciable on the present record. That being so, neither petitioner nor the District Attorney was entitled to a determination on it.

Accordingly, the order of the Appellate Division, which we treat as declaring that respondent Holtzman is not disqualified, should be modified by striking that declaration and, as so modified, that order should be affirmed, without costs.

Chief Judge Cooke and Judges Jasen, Jones and Wachtler concur; Judges Meyer and Kaye taking no part.

Order modified, without costs, in accordance with the opinion herein and, as so modified, affirmed.

      . Canon 5 —• “A Lawyer should exercise independent professional judgment on behalf of a client.”

      . Canon 9 — “A Lawyer should avoid even the appearance of professional impropriety.”


source: Caselaw Access Project

author: Chief Judge Cooke.

license: Public Domain

text:
    Estelle Hecht, Appellant, v City of New York et al., Respondents. (And a Third-Party Action.)
    Argued June 6, 1983;
    decided September 15, 1983

      POINTS OF COUNSEL

      Richard E. Shandell and David D. Glass for appellant.
    I. The court below abused its discretion in exercising its statutory power (CPLR 5522). Plaintiff-appellant made out a prima facie case of negligence against both defendant-respondents. (Loughran v City of New York, 298 NY 320; Fordham v Gouverneur Vil., 160 NY 541; Mullins v Siegel-Cooper Co., 183 NY 129; Durr v New York Cent. & Hudson R.R. Co., 184 NY 320; Purcell v New York World’s Fair, 1964/65 Corp., 33 AD2d 914; Smith v City of New York, 38 AD2d 965; Wilson v Jaybro Realty & Dev. Co., 289 NY 410; Taylor v New York City Tr. Auth., 63 AD2d 630; Di Grazia v City of New York, 35 AD2d 735; Thomson v City of New Rochelle, 26 NY2d 1047.) II. The reversal of the judgment of the lower court and the dismissal of the complaint does not inure to the benefit of the nonappealing defendant-respondent, Square Depew Garage Corp. (Gilligan v Farmers Coop. Marketing Assn., 23 AD2d 850; Meaney v Loew’s Hotels, 29 AD2d 850; Hutter v Levitt & Sons, 36 AD2d 758; Moran v Comptroller of City of N. Y., 69 Misc 2d 224; Drane Lbr. Co. v T.G.K. Constr. Co., 39 AD2d 567; City of Rye v Public Serv. Mut. Ins. Co., 34 NY2d 470; Duquin v Colucci, 60 AD2d 995; Ralston Purina Co. v Siegel’s Poultry, 24 AD2d 926; Tenavision, Inc. v Neuman, 45 NY2d 145; Segar v Youngs, 45 NY2d 568; San Lucas v Bornn & Co., 225 NY 717.)

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Frank S. Plimpton and Briscoe R. Smith of counsel), for City of New York, respondent.
    I. The court below correctly decided that plaintiff failed to show that an actionable defect existed. (Loughran v City of New York, 298 NY 320; Keirstead v City of New York, 17 NY2d 535; Fox v Brown, 15 NY2d 597; Lynch v City of Beacon, 295 NY 872; Dowd v City of Buffalo, 290 NY 895; Stakel v City of Batavia, 260 NY 628; Smith v City of New York, 223 NY 608; Terry v Village of Perry, 199 NY 79; Butler v Village of Oxford, 186 NY 444; Hamilton v City of Buffalo, 173 NY 72.) II. The issues not decided by the court below also require reversal of the trial court. (Matter of Kovarsky v Housing & Dev. Admin. of City of N. Y., 31 NY2d 184; Matter of Napolitano [MVAIC], 21 NY2d 281; D’Ambrosio v City of New York, 55 NY2d 454; Trustees of Vil. of Canandaigua v Foster, 156 NY 354; Santorelli v City of New York, 77 AD2d 825; Wylie v City of New York, 286 App Div 720; Ohrt v City of Buffalo, 281 App Div 344; Schrold v City of New York, 273 App Div 872, 298 NY 738; Nickelsburg v City of New York, 263 App Div 625; Lombardozzi v City of New York, 71 Misc 2d 271.) III. The city takes no position as to whether the nonappealing defendant should benefit from the dismissal of the complaint.

      Joseph D. Ahearn and Michael Majewski for Square Depew Garage Corp., respondent.
    I. Since the Supreme Court judgment was a joint judgment and since defendant Square Depew possesses substantial contribution rights under said judgment, the court below had the power to reverse plaintiff’s judgment against defendant Square Depew (the nonappealing defendant to the Appellate Division) and to dismiss plaintiff’s complaint against said defendant in order to protect defendant Square Depew’s right to contribution. (Arnold v District Council No. 9, Int. Brotherhood of Painters & Allied Trades, 61 AD2d 748, 46 NY2d 999; Statella v Chuckrow Constr. Co., 28 AD2d 669; Rome Cable Corp. v Tanney, 21 AD2d 342; Town of Massena v Niagara Mohawk Power Corp., 45 NY2d 482; City of Glen Cove v Utilities & Inds. Corp., 17 NY2d 205; Opper v Tripp Lake Estates, 274 App Div 422; Monahan v Fiore, 76 AD2d 884; Kelly v Long Is. Light. Co., 31 NY2d 25; Zillman v Meadowbrook Hosp. Co., 45 AD2d 267;Boice v Jones, 106 App Div 547.) II. The authorities relied upon by plaintiff are manifestly inapplicable. (City of Rye v Public Serv. Mut. Ins. Co., 34 NY2d 470; Tenavision, Inc. v Neuman, 45 NY2d 145; Manes Co. v Greenwood Mills, 53 NY2d 759; Gilligan v Farmers Coop. Marketing Assn., 23 AD2d 850; Meany v Lowe’s Hotels, 29 AD2d 850; Hutter v Levitt & Sons, 36 AD2d 758; Southern Assoc. v United Brands Co., 67 AD2d 199; Video Techniques v Teleprompter Corp., 60 AD2d 526; Ralston Purina Co. v Siegel’s Poultry, 24 AD2d 926.) III. Assuming, arguendo, that the court below’s reversal as it related to having the reversal inure to the benefit of defendant Square Depew was solely “on the law” and not in the exercise of discretion, it is respectfully submitted that the Appellate Division was required to arrive at its conclusion. IV. Solely in the alternative, if this court concludes that the Appellate Division determination regarding the disposition as to defendant Square Depew was solely “on the law” and also holds that the Appellate Division had the discretion (but was not mandated) to arrive at such disposition, this court should remit the action to the Appellate Division pursuant to CPLR 5613 in order to have the Appellate Division exercise its discretion. V. If this court were to reverse the Appellate Division order upon the ground that plaintiff made out a prima facie case with respect to the accident, this court, pursuant to CPLR 5613, should remit the entire action to the Appellate Division for determination of questions of fact.
   OPINION OF THE COURT

Chief Judge Cooke.

This appeal presents a question respecting the limits of an appellate court’s scope of review of a judgment rendered against multiple parties but appealed by only one. Generally, an appellate court cannot grant affirmative relief to a nonappealing party unless it is necessary to do so in order to accord full relief to a party who has appealed. Thus, it was error here for the Appellate Division to dismiss the action against a joint tort-feasor found liable at trial, but who took no appeal from the judgment.

Plaintiff commenced this negligence action against the City of New York and the Square Depew Garage Corporation for injuries sustained when she fell on a sidewalk located outside a garage operated by defendant corporation. After a jury trial, both defendants were found to be equally liable. Only the City of New York appealed the judgment.

The Appellate Division reversed on the law and dismissed the complaint, holding that there was no actionable defect in the sidewalk. The court added, however, that “[although only the city prosecuted an appeal, the whole of the judgment is before us * * * and our disposition necessarily effects a dismissal as to the garage defendant as well.” This court now modifies the order of the Appellate Division by reinstating the judgment against Square Depew Garage Corporation.

The gravamen of plaintiff’s complaint was that defendants failed to maintain the sidewalk in a condition reasonably safe for pedestrians, which failure proximately caused plaintiff’s injuries. Plaintiff’s proof established that there was a slight gap between two flagstones of the sidewalk. The gap may only be described as trivial. Consequently, it was not error for the Appellate Division to have found no actionable defect in the sidewalk and to have dismissed the complaint against the City of New York.

The other defendant, Square Depew Garage Corporation, however, took no appeal from the judgment. The Appellate Division, therefore, was without power to vacate the judgment against that defendant.

The power of an appellate court to review a judgment is subject to an appeal being timely taken (see CPLR 5513, 5515; see, also, Matter of Haverstraw Park v Runcible Props. Corp., 33 NY2d 637; Ocean Acc. & Guar. Corp. v Otis Elevator Co., 291 NY 254; Roy v National Grange Mut. Ins. Co., 85 AD2d 832, 832-833). And an appellate court’s scope of review with respect to an appellant, once an appeal has been timely taken, is generally limited to those parts of the judgment that have been appealed and that aggrieve the appealing party (see CPLR 5501, subd [a]; 5511; see, also, Segar v Youngs, 45 NY2d 568; Stark v National City Bank, 278 NY 388, 394; St. John v Andrews Inst. for Girls, 192 NY 382, 386-389; Kennis v Sherwood, 82 AD2d 847, 848; Finder v Gromet, 10 AD2d 977, 978; Frankel v Berman, 10 AD2d 838; Strecker v Kew Gardens Realty Assoc., 230 App Div 714; cf. Matter of Burk, 298 NY 450, 455). The corollary to this rule is that an appellate court’s reversal or modification of a judgment as to an appealing party will not inure to the benefit of a nonappealing coparty (see St. John v Andrews Inst. for Girls, 192 NY 382, 386-389, supra; Bonat v Crosswell, 241 App Div 230; Kohlmetz v Amdoursky, 227 App Div 758; San Lucas v Bornn & Co., 173 App Div 703; Orr v Wolff, 71 App Div 614) unless the judgment was rendered against parties having a united and inseverable interest in the judgment’s subject matter, which itself permits no inconsistent application among the parties (see Matter of Winburn, 270 NY 196, 198; United States Print. & Lithograph Co. v Powers, 233 NY 143,152-155).

It is, of course, axiomatic that, once an appeal is properly before it, a court may fashion complete relief to the appealing party. On rare occasions, the grant of full relief to the appealing party may necessarily entail granting relief to a nonappealing party (cf. United States Print. & Lithograph Co. v Powers, 233 NY 143, supra). At this time, there is no need to detail or enumerate the specific circumstances when such a judgment or order might be appropriate.

Having set forth the rule in general, the court turns to its application here. The appeal by the City of New York to the Appellate Division brought up for its review, with respect to the defendants, only so much of the judgment as imposed liability against the city. As full relief to the city can be achieved without granting relief to Square Depew, it was error to dismiss the complaint as to Square Depew unless the city’s interest could be said to be inseparable from that of Square Depew.

When multiple tort-feasors are found to be liable for damages, they may not be said to have an inseverable interest in the judgment, even though the factual basis for each party’s liability is identical. Liability is said to be “joint and several”, meaning that each party is individually liable to plaintiff for the whole of the damage (see Restatement, Torts 2d, § 875, and Comment [6]). A plaintiff may proceed against any or all defendants (see Siskind v Levy, 13 AD2d 538; Kapossky v Berry, 212 App Div 833). Moreover, a judgment for or against one tort-feasor does not operate as a merger or bar of a claim against other tortfeasors (see Restatement, Judgments 2d, § 49, and Comment [a]). Thus, Square Depew’s interest was severable from that of its codefendant. Inasmuch as the judgment here was appealed only by the city, the Appellate Division’s reversal was effective only as to that party.

Square Depew argues that the Appellate Division is vested with discretionary power to grant relief to a nonappealing party in the interest of justice, and that the Appellate Division has exercised that discretion in this case. In so arguing, Square Depew relies on CPLR 5522, which provides, in pertinent part, that “[a] court to which an appeal is taken may reverse, affirm, or modify, wholly or in part, any judgment or order before it, as to any party.” It has been proposed that the clause “as to any party” vests the Appellate Division with discretionary power to grant relief to a nonappealing party who appears before the court as a respondent. The Appellate Division in the past has claimed this power and applied it on a number of occasions (see, e.g., Halftown v Triple D Leasing Corp., 89 AD2d 794; Monahan v Fiore, 76 AD2d 884; Foley v Roche, 68 AD2d 558; Statella v Chuckrow Constr. Co., 28 AD2d 669; Rome Cable Corp. v Tanney, 21 AD2d 342). This court now holds that neither CPLR 5522 nor any other statutory or constitutional authority permits an appellate court to exercise any general discretionary power to grant relief to a nonappealing party/

The common-law concept of a judgment rendered against multiple parties was that, if an error found on appeal required reversal as to one party, the judgment must be reversed as to all (see Harman v Brotherson, 1 Denio 537; Sheldon v Quinlen, 5 Hill 441; Cruikshank v Gardner, 2 Hill 333). This result obtained even when theories of liability against the defendants differed or when there was error as to only one of the parties (see Sheldon v Quinlen, 5 Hill 441, 442-443, supra). The rule was derived from the principle “that there can be only one final judgment in an action at law” (Draper v Interborough R. T. Co., 124 App Div 357, 359).

With the advent of statutory provisions permitting appellate courts to reverse, affirm, or modify a judgment, in whole or in part, with respect to any of the parties (see Code of Pro [Field Code], § 330; Code Civ Pro, § 1317; Civ Prac Act, § 584), the common-law rule was effectively abrogated (see Campbell v Perkins, 8 NY 430; Van Slyck v Snell, 6 Lans 299; Geraud v Stagg, 10 How Prac 369). Judgments are no longer necessarily viewed as indivisible entireties, reversal of which as to one of the parties necessarily effecting a reversal as to all parties against whom the judgment was rendered (compare Sheldon v Quinlen, 5 Hill 441, supra, with Goodsell v Western Union Tel. Co., 109 NY 147). Rather, when multiple parties bring or defend an action or proceeding, and an appeal is taken from an adverse determination below, the appellate court can fashion relief to the various parties within the confines of the governing substantive law. That is the import of CPLR 5522. Moreover, nothing in the legislative history of this provision, its statutory antecedents, or its constitutional counterpart (see NY Const, art VI, § 5), nor any construction of these provisions by this court indicate that the “as to any party” language vests appellate courts with discretionary power to grant relief to a nonappealing party. The provisions were not meant to expand either the jurisdiction or the scope of review of an appellate court, but were merely intended to enumerate the forms of dispositions an appellate court may order. CPLR 5522, therefore, should be read in harmony with the statutory scheme which limits an appellate court’s authority to the grant of relief to those who have appealed, except as discussed above.

Accordingly, the order of the Appellate Division should be modified, with costs to appellant, by reinstating the judgment in favor of plaintiff against Square Depew Garage Corporation and, as so modified, affirmed.

Judges Jasen, Jones, Wachtler, Meyer and Simons concur.

Order modified, with costs to appellant, in accordance with the opinion herein and, as so modified, affirmed.

       To be distinguished is CPLR 5501 (subd [a], par 5), applicable when a trial court has granted additur or remittitur relief with respect to an excessive or insufficient verdict. When the beneficiary of that order appeals, the appellate court may, under this provision, grant affirmative relief to the nonappealing party by reinstating the verdict (see 7 Weinstein-Korn-Miller, NY Civ Prac, par 5501.13).


author:
      Per Curiam.
     Jasen, J.

text:
    In the Matter of Queens Farms, Inc., et al., Respondents-Appellants, v Joseph Gerace, as Commissioner of the Department of Agriculture and Markets of the State of New York, Appellant-Respondent. Herbert Marks et al., Intervenors-Appellants-Respondents.
    Argued September 22, 1983;
    decided September 27, 1983

      POINTS OF COUNSEL

      Thomas G. Conway, Dennis P. Buckley and Joan A. Kehoe for appellant-respondent.
    I. Section 258-b (subd 5, par [b]) entrusts the Commissioner with discretion whether or not to allege as an issue at the claim hearing, the reasonableness of claimant’s business judgment. The statute does not require an affirmative finding of good judgment as a precondition for the payment of every claim. (Matter of Dairylea Coop. v Walkley, 38 NY2d 6.) II. The Commissioner gave explicit consideration to the extension of credit issue. His decision that there was no legitimate issue with respect to individual farmers was a sound exercise of discretion. (Matter of Dairylea Coop. v Walkley, 38 NY2d 6.) III. The arguments of the majority of the court below are without merit. (Matter of Eastern Milk Producers Coop. Assn. v State of New York Dept. of Agric. & Markets, 58 NY2d 1097.) IV. Petitioners’ claim that Glen & Mohawk was not a licensed milk dealer is a verbal quibble. (Matter of Glen & Mohawk Milk Assn. v Barber, 77 AD2d 127, 52 NY2d 704, 828.) V. Petitioners are without standing to seek judicial review of the Commissioner’s determination to make payments to milk producers from the Milk Producers Security Fund. (Matter of Dairylea Coop. Walkley, 38 NY2d 6.)

      John T. Driscoll, Edwin M. Mulholland and Michael J. Comerford for respondents-appellants.
    I. Petitioners have standing to object to payment from the fund by the Commissioner. (Matter of Eastern Milk Producers Coop. Assn. v State of New York Dept. of Agric. & Markets, 58 NY2d 1097; Matter of Dairylea Coop. v Walkley, 38 NY2d 6.) II. Payments to claimants of Glen & Mohawk, an unlicensed milk dealer, are prohibited by statute. III. A hearing concerning the extension of credit to Glen & Mohawk is required prior to any payments. (Matter of Eastern Milk Producers Coop. Assn. v State of New York Dept. of Agric. & Markets, 58 NY2d 1097.)

      John Benjamin Carroll for Herbert Marks and others, intervenors-appellants-respondents.
    I. Glen & Mohawk was licensed within the intent of section 258-b of the Agriculture and Markets Law. (Matter of P. T. & L. Constr. Co. v Hennessy, 68 AD2d 992; Matter of Eastern Milk Producers Coop. Assn. v State of New York Dept. of Agric. & Markets, 58 NY2d 1097.) II. Petitioners do not meet the legal test for standing to sue. (Matter of Dairylea Coop. v Walkley, 38 NY2d 6.) III. Petitioners’ evidence on reasonableness of credit was all taken from the Commissioner’s own files and these were before him at the time of his determination and considered.
   OPINION OF THE COURT

Per Curiam.

This is a proceeding under CPLR article 78 to review a determination of the Commissioner of Agriculture and Markets (Commissioner) which would have permitted pay-merits to be made to the claimants from the Milk Producers Security Fund (Agriculture and Markets Law, § 258-b).

In the first week of July, 1983 certain checks issued to dairy farmers by the Glen & Mohawk Milk Association at Fultonville, New York, were dishonored by the banks because of insufficient funds. These checks had been issued for May milk with no checks having been issued by the corporation for milk delivered to it during the month of June. The unpaid farmers and dairy farmer cooperatives filed claims against the Milk Producers Security Fund pursuant to section 258-b of the Agriculture and Markets Law. After conducting a hearing, the Commissioner issued a determination ordering immediate payment from the fund of one half of the amount of each of the certified claims. Petitioners then commenced this CPLR article 78 proceeding seeking to annul the Commissioner’s determination. Special Term denied the relief sought and dismissed the petition. A divided court in the Appellate Division reversed and remitted the matter to the Commissioner. We granted leave to appeal pursuant to CPLR 5602 (subd [a], par 2).

Petitioners consist of (1) licensed milk dealers who are contributors to the security fund and (2) dairy farmer/producers who did not deal with Glen & Mohawk, but who rely on the fund as security in their sales to other dealers. For the reasons stated by the majority at the Appellate Division the petitioners have standing to bring this proceeding.

Turning to the merits of petitioners’ claims, the Commissioner’s determination is challenged on two bases. First, it is contended that payments to claimants of Glen & Mohawk are prohibited by statute (Agriculture and Markets Law, § 258-b, subd 5, par [d]) because the dealer is not licensed. The Commissioner found that Glen & Mohawk was properly licensed within the meaning of subdivision 2 of section 401 of the State Administrative Procedure Act. The application of section 401 and the determination that the dealer’s license had not expired were correct.

Petitioners’ second contention is that the Commissioner was precluded from allowing claims arising out of the extension of credit by the claimants until a hearing is held to determine whether such extensions of credit constituted a reasonable exercise of business judgment. Paragraph (b) of subdivision 5 of the statute provides that: “No claims against the producers security fund shall be allowed for * * * sales of milk by a producer to a milk dealer subsequent to its failure to pay within the time periods prescribed * * * where the commissioner finds, after due notice and opportunity of hearing, that such extension of credit, whether direct or indirect, to such milk dealer by the producer did not constitute a reasonable exercise of business judgment”. Plainly, the statute commits the decision whether to take issue with the reasonableness of claimants’ extension of credit solely to the discretion of the Commissioner. If he concludes that there is reason to believe that the milk dealer failed to exercise reasonable business judgment in extending credit a hearing should be ordered. Inasmuch as the Commissioner’s investigation did not lead him to question the claimants’ business judgment, he was not required by the statute to hold a hearing on the issue.

Accordingly, the order of the Appellate Division should be modified by dismissing the petition and reinstating the Commissioner’s determination, and, as so modified, the order should be affirmed.

Jasen, J.

(concurring in result). Inasmuch as I do not believe the petitioners have standing to bring this proceeding, I would dismiss the petition for the reasons stated in the dissenting opinion of Justice T. Paul Kane at the Appellate Division. The clear legislative intent negates review of the Commissioner’s determination by persons other than claimants and defaulting milk dealers. (Agriculture and Markets Law, § 258-b, subd 5, pars [c], [d].)

Chief Judge Cooke and Judges Jones, Wachtler, Meyer, Simons and Kaye concur in Per Curiam opinion; Judge Jasen concurs in result in a memorandum.

Order modified, with costs to the Commissioner against the petitioners only, in accordance with the opinion herein and, as so modified, affirmed.


author: Meyer, J.

text:
    In the Matter of Suffolk Outdoor Advertising Co., Inc., Appellant, v Town of Southampton et al., Respondents. In the Matter of Collum Signs, Inc., Appellant, v Martin Lang, as Supervisor of the Town of Southampton, et al., Respondents.
    Argued September 19, 1983;
    decided October 20, 1983

      POINTS OF COUNSEL

      Carl W. Peterson, Jr., and Eugene L. De Nicola for Suffolk Outdoor Advertising Co., Inc., appellant, and Christopher K. McKeever for Collum Signs, Inc., appellant.
    I. The denial of the extension of the amortization period is so unreasonable as applied to petitioner that it renders the ordinance unconstitutional because it effectively puts petitioner out of business thereby resulting in a taking without due process or just compensation and denying it equal protection without any rational or legitimate basis. (Matter of Harbison v City of Buffalo, 4 NY2d 553; Modjeska Sign Studios v Berle, 43 NY2d 468; Suffolk Outdoor Adv. Co. v Hulse, 43 NY2d 483; People v Goodman, 31 NY2d 262;
      Philanz Oldsmobile v Keating, 51 AD2d 437; French Investing Co. v City of New York, 39 NY2d 587.) II. If this court determines that the ordinance is not unconstitutional as applied to petitioner, then the court must fipd that compensation for the removal and loss of the outdoor advertising signs is required pursuant to section 131 of title 23 of the United States Code.

      RichardE. De Petris for respondents in both proceedings.
    I. The only issue open to appellant in this proceeding is the issue of whether appellant has been provided with a reasonable amortization period for its billboards. (Suffolk Outdoor Adv. Co. v Hulse, 43 NY2d 483, 439 US 808; Vavolizza v Krieger, 33 NY2d 351; Slater v American Min. Spirits Co., 33 NY2d 443; Modjeska Sign Studios v Berle, 43 NY2d 468, 439 US 809; Art Neon Co. v City & County of Denver, 488 F2d 118, 417 US 932; National Adv. Co. v City of Ashland, Ore., 678 F2d 106; State of South Dakota v Adams, 506 F Supp 50, affd sub nom. State of South Dakota v Goldschmidt, 635 F2d 698, cert den sub nom. State of South Dakota v Lewis, 451 US 984; Rochester Poster Adv. v Town of Brighton, 49 AD2d 273.) II. Respondents’ determination — that appellant has been provided with a reasonable amortization period for its billboards — is not unreasonable or unconstitutional as applied to appellant’s billboards. (Modjeska Sign Studios v Berle, 43 NY2d 468; Suffolk Outdoor Adv. Co. v Hulse, 43 NY2d 483; Penn Cent. Transp. Co. v City of New York, 42 NY2d 324, 438 US 104; People v Goodman, 31 NY2d 262; Rochester Poster Adv. v Town of Brighton, 49 AD2d 273; Philanz Oldsmobile v Keating, 51 AD2d 437; Village of Larchmont v Sutton, 30 Misc 2d 245; Art Neon Co. v City & County of Denver, 488 F2d 118, 417 US 932; Whitmier & Ferris Co. v State of New York, 20 NY2d 413; New York State Thruway Auth. v Ashley Motor Ct., 10 NY2d 151.)

      Robert Abrams, Attorney-General {Lawrence A. Rappoport, Peter H. Schiff and James A. Sevinsky of counsel), in his statutory capacity under section 71 of the Executive Law.
    I. Section 88 of the Highway Law should be construed as being consistent with the Federal Highway Beautification Act to require the payment of compensation for signs which are not permitted under that section whether or not sign removal occurs under that statute. (Suffolk Outdoor Adv. Co. v Hulse, 43 NY2d 483,439 US 808; Modjeska Sign Studios v Berle, 43 NY2d 468; RHP, Inc. v City of Ithaca, 91 AD2d 721.) II. The compensation requirements of section 88 of the Highway Law apply to the Town of Southampton’s sign ordinance regarding those signs not permitted by section 131 of title 23 of the United States Code located within the town. (Monroe-Livingston Sanitary Landfill v Town of Caledonia, 51 NY2d 679; People v New York Trap Rock Corp., 57 NY2d 371; Matter of Kelly v McGee, 57 NY2d 522.) III. This court’s prior ruling in Suffolk Outdoor Adv. Co. v Hulse (43 NY2d 483) does not bar this court from determining the validity of the Town of Southampton’s amortization provisions of its sign ordinance in light of the 1978 amendments to section 131 (subds [g], [k]) of title 23 of the United States Code. (RHP, Inc. v City of Ithaca, 91 AD2d 721; Dutchess Sanitation Serv. v Town of Plattekill, 51 NY2d 670.)
   OPINION OF THE COURT

Meyer, J.

Notwithstanding the amendments of the Federal Highway Beautification Act of 1965 (US Code, tit 23, § 131) made by the Surface Transportation Assistance Act of 1978 (Pub L 95-599, § 122 [a], [b]), compensation need not be paid by a municipality which requires removal of outdoor advertising signs, provided a reasonable amortization period is allowed by the removal ordinance. As applied to petitioners the amortization provision of Building Zone Ordinance No. 26 of the Town of Southampton is not unreasonable. The order of the Appellate Division should, therefore, be affirmed.

I

By Ordinance No. 26, enacted in May, 1972, the Town of Southampton provided for the removal of nonconforming outdoor advertising billboards on or before June 1, 1975, but gave an owner the opportunity to apply to the town board for an extension of the amortization period prescribed by the ordinance (§ 3-110-70.04). In declaratory judgment actions the present petitioners sought to have the ordinance held unconstitutional. In Suffolk Outdoor Adv. Co. v Hulse (43 NY2d 483, app dsmd 439 US 808) we held that Ordinance No. 26 did not violate the First Amendment’s speech provision and was a valid exercise of the police power, and that neither the Federal Highway Beautification Act nor the co-ordinate provisions of New York’s Highway Law (§ 88) precluded removal of billboards without compensation. We declined to pass upon the reasonableness of the amortization provisions of the ordinance, however, because petitioners had failed to exhaust their administrative remedies by applying to the town board for an extension of the amortization period.

The Surface Transportation Assistance Act of 1978, enacted by Congress not long after that decision, amended subdivisions (g) and (k) of section 131 of the United States Code, among other provisions. Subdivision (k), which had previously read: “Nothing in this section shall prohibit a State from establishing standards imposing stricter limitations with respect to signs, displays, and devices on the Federal-aid highway systems than those established under this section” was amended by the insertion of a new opening clause reading “Subject to compliance with subsection .(g) of this section for the payment of just compensation,” and subdivision (g), which had previously read: “Just compensation shall be paid upon the removal of any outdoor advertising sign, display, or device lawfully erected under State law”, was amended by the insertion at its end of the words “and not permitted under subsection (c) of this section, whether or not removed pursuant to or because of this section.”

In January, 1979, petitioners applied to the town board for extension of the amortization period under the ordinance. Their applications were denied by that body after public hearings. As to petitioner Suffolk Outdoor Advertising Co., Inc., the town board determined that it purchased its billboards in 1965 at an average cost of $610 and at a rate of $100 per year the construction cost was amortized in 1971. As to petitioner Collum Signs, Inc., the town board determined that the applicant did not establish the construction cost of its billboards but that, at a rate of $100 per year, its investment was fully amortized prior to 1972. Each petitioner conceded that its investment had been fully recovered, that it had made a substantial profit, and that its billboards had been substantially depreciated for tax purposes. The town board determined that each petitioner’s loss of future profits was outweighed by the public gain.

Petitioners then brought the instant proceedings to review those determinations. Supreme Court held that collateral estoppel foreclosed all substantive issues other than the reasonableness of the amortization provision as applied and the applicability of the 1978 amendments of the Federal statute. Finding the town board’s amortization determination supported by substantial evidence and the Federal statute as amended not preemptive, Special Term confirmed the determination and dismissed the petition. The Appellate Division affirmed (88 AD2d 601) for essentially the same reasons.

Before us petitioners argue that notwithstanding the provision of subdivision 9 of section 88 of the Highway Law, compensation must be paid pursuant to the above-detailed 1978 amendments of the Federal statute and that, therefore, the amortization provision of the ordinance is no longer valid. Alternatively, they contend that as applied to them the amortization provision of the ordinance works an unconstitutional taking. We disagree with both contentions and, therefore, affirm.

II

Neither Federal nor State law preempts the right of the Town of Southampton in the exercise of its police power to require removal of billboards of the type dealt with by the town ordinance. The State Highway Law is explicit in its provision (§ 88, subd 9) that “Nothing in this section shall be construed to abrogate or affect the provisions of any other, statute, lawful ordinance, regulation pursuant thereto or resolutions which are more restrictive than the provisions of this section or the agreement ratified and approved by this section.” We held in Suffolk Outdoor Adv. Co. v Hulse (supra, at p 491) that in light of that provision and the amortization provisions of the ordinance further compensation was not required. Unlike the Federal statute, subdivision 9 has not since been amended to require the payment of compensation. In the absence of specific amendment of subdivision 9, we cannot read section 85 of the Highway Law, in which the Legislature declares its intent to comply with the Federal aid highway acts and pledges the State’s good faith to provide its share of the cost of so doing, as adopting any and all later enacted amendments of the Federal act (cf. NY Const, art III, § 22). In short, as a matter of State law, amendment of the Federal statute works no change in State statute or in our prior holding that petitioners are entitled to no more than a reasonable amortization period.

Nor does the Federal Highway Beautification Act, as amended, preempt the town’s power to require commercial billboard removal without compensation, provided a reasonable amortization period is allowed. The Federal act is a taxing and spending measure enacted pursuant to the general welfare clause of the United States Constitution (art I, § 8, cl 1). It does not forbid removal of signs through amortization; at most it withholds highway aid from, a State which does not pay compensation. The State remains free to refuse to do so and to accept the penalty (National Adv. Co. v City of Ashland, Ore., 678 F2d 106, 108; see State of South Dakota v Adams, 506 F Supp 50, 54-58, affd sub nom. State of South Dakota v Goldschmidt, 635 F2d 698, cert den sub nom. State of South Dakota v Lewis, 451 US 984; Markham Adv. Co. v State of Washington, 73 Wn 2d 405, app dsmd 393 US 316).

Ill

Petitioners’ alternative contention stands them in no better stead. Under the criteria established in Modjeska Sign Studios v Berle (43 NY2d 468, app dsmd 439 US 809), the amortization period was reasonable as applied to their billboards for, as the Appellate Division noted (88 AD2d, at p 601), they had “fully recouped their investments, substantially depreciated their billboards for income tax purposes, had relatively insubstantial lease and license obligations and, thus, would not incur any substantial financial loss”. Nor with respect to benefit-burden analysis can it be said that the town board’s conclusion that the public benefit from removal of the billboards outweighs the detriment to petitioners is arbitrary or capricious (cf. Metromedia, Inc. v San Diego, 453 US 490, 508-512).

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

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Simons and Kaye concur.

In each case: Order affirmed, with costs.

      . Cf. Metromedia, Inc. v City of San Diego (26 Cal 3d 848, 871 ff, revd on other grounds 453 US 490). An amendment of the General Municipal Law that would have required the payment of just compensation for all billboards (whether or not within the Federal 660-foot zone) required by local law, ordinance or resolution to be removed (S2531-A, A3234/1983) was passed by the Legislature but vetoed on July 21,1983 by the Governor.

      . The town argues that a condition of withholding is that funds be available for the Federal share of billboard removal and that such funds are not available to New York municipalities (US Code, tit 23, § 131, subd [g]). In view of our conclusion concerning Federal preemption, we do not reach that question.

      . The Federal Highway Administration of the United States Department of Transportation agrees with that interpretation of the Federal law. Its Highway Beautification Program Digest (April 30, 1979) states: “The States must insure local adherence to Federal law or risk noncompliance and be subjected to the penalty provisions of 23 U.S.C. 131(b)” (Digest, p 44; see, also, pp 46, 49).


text:
    Miguel Colon, Respondent, v City of New York, Appellant.
    Argued September 13, 1983;
    decided October 25, 1983

      POINTS OF COUNSEL

      Frederick A. 0. Schwarz, Jr., Corporation Counsel (Alfred Weinstein, Leonard Koerner and Michael T. Ridge of counsel), for appellant.
    The evidence was insufficient to rebut the presumption of probable cause which followed from plaintiff’s pleading and proof of the indictment. That presumption aside, the evidence was insufficient to establish lack of probable cause. Accordingly, plaintiff did not establish, as was required despite the default, a prima facie case of malicious prosecution. (Martin v City of Cohoes, 37 NY2d 162; Cullen v Naples, 31 NY2d 818; Buckin v Long Is. R.R. Co., 286 NY 146; Phillips v City of Syracuse, 84 AD2d 957, 57 NY2d 996; Hopkinson v Lehigh Val. R.R. Co., 249 NY 296; Broughton v State of New York, 37 NY2d 451; Lee v City of Mount Vernon, 49 NY2d 1041; Munoz v City of New York, 18 NY2d 6.)

      Martin S. Rothman, Ronald Goldfarb, Jeffrey E. Roth-man and Alyne I. Diamond for respondent.
    I. Not only was a prima facie case of malicious prosecution established, but indeed, the evidence overwhelmingly supported the finding of liability which was made against the city. (Ferrer v Harris, 55 NY2d 285; Caprara v Chrysler Corp., 52 NY2d 114; Matter of Kornblum Metals Co. v Intsel Corp., 38 NY2d 376; Martin v City of Albany, 42 NY2d 13; Cohen v Hallmark Cards, 45 NY2d 493; 67 Wall St. Co. v Franklin Nat.

      Bank, 37 NY2d 245; Amend v Hurley, 293 NY 587; People v Gaimari, 176 NY 84; People v Carter, 37 NY2d 234; Broughton v State of New York, 37 NY2d 451, cert den sub nom. Schanbarger v Kellogg, 423 US 929; Whitmore v City of New York, 80 AD2d 638; Boose v City of Rochester, 71 AD2d 59; Reeves v Manufacturers Hanover Trust Co., 88 AD2d 972; Brown v City of New York, 80 AD2d 596; Loeb v Teitelbaum, 77 AD2d 92; Munoz v City of New York, 18 NY2d 6; Hyman v New York Cent. R. R. Co., 240 NY 137.) II. Justice Shapiro properly found for plaintiff on the issue of malicious prosecution. (Lee v City of Mount Vernon, 49 NY2d 1041.)
   OPINION OF THE COURT

Simons, J.

Defendant appeals from a judgment awarding plaintiff damages for malicious prosecution and false imprisonment. It does not contest the false imprisonment claim but it contends the malicious prosecution action should have been dismissed because plaintiff failed to overcome the presumption which arose from his indictment that the police acted with probable cause in charging him with murder in the second degree.

The criminal charges followed the fatal stabbing of Emelio Hernandez on March 3,1974. When the indictment was moved for trial 22 months later, the District Attorney discovered that although several witnesses had seen plaintiff fighting another man in the area where the victim was found, there was no direct evidence connecting defendant and the victim because none of the witnesses could identify Hernandez as the other man in the fight. The police investigators had apparently assumed plaintiff was Hernandez’ killer after finding him lying in the vicinity of Hernandez’ stabbed body and learning that plaintiff had been involved in a fight in which he had used a knife. The District Attorney therefore moved to dismiss the indictment and the motion was granted.

Plaintiff then instituted this action. The city defaulted but the parties stipulated at the inquest that plaintiff would be required to present evidence establishing a prima facie case of malicious prosecution before he could recover on that cause of action. Trial Term found for plaintiff on both causes of action and awarded him $250,000 damages. With respect to the cause of action for malicious prosecution, it held that the presumption of probable cause did not arise from the indictment in the absence of direct evidence before the Grand Jury connecting plaintiff with the death of the victim but that even if it did, plaintiff’s evidence had rebutted the presumption. The Appellate Division reduced the damages to $125,000 and granted the city leave to appeal to this court.

The evidence established that around midnight of March 3, 1974 the police were called to investigate a knifing on Intervale Avenue, between Beck and Fox Streets, in The Bronx. When the police arrived, they found the body of the victim, Emelio Hernandez, on the sidewalk critically injured from several stab wounds. Plaintiff was lying on the sidewalk about 100-150 feet away. Both men were taken to Lincoln Hospital where Hernandez died about 12:45 a.m. The police questioned several people in the area and found two witnesses who stated that plaintiff and another were in an argument in a social club at 882 Intervale Avenue; that plaintiff was drunk and calling the other man obscene names and that plaintiff eventually asked the man to step outside. Two other witnesses told police that they saw plaintiff, whom they later identified at the hospital, in a fight with another man on Intervale Avenue. These witnesses stated they saw plaintiff swing a knife at the other man but that the crowd around the fight closed in and they could see nothing else until the two men were separated by the spectators. One of these witnesses described the man fighting with plaintiff as 5 feet 4 inches tall, medium build, about 30 years of age and wearing a cream colored jacket. This evidence was corroborated in various particulars by several people interviewed. None of them saw more than one fight in the area that night. The officer’s belief that the man plaintiff was fighting with was Hernandez was corroborated by the autopsy report which revealed that Hernandez was 5 feet 5 inches tall, weighed 110 pounds, was approximately 28 years old and was wearing a light beige jacket with brown lining when brought to the hospital.

For his part, plaintiff told the police that he had been in an argument at the social club that night, that he had asked another man to step outside and that after going outside he had been hit over the head from behind and had no further recollection of the incident.

The elements of an action for malicious prosecution are (1) the initiation of a proceeding, (2) its termination favorably to plaintiff, (3) lack of probable cause, and (4) malice (see Martin v City of Albany, 42 NY2d 13,16; Broughton v State of New York, 37 NY2d 451, 457, cert den sub nom. Schanbarger v Kellogg, 423 US 929; 2 NY PJI 798 et seq.). Only the element of probable cause concerns us on this appeal.

Probable cause consists of such facts and circumstances as would lead a reasonably prudent person in like circumstances to believe plaintiff guilty (Hyman v New York Cent. R. R. Co., 240 NY 137,143; Boose v City of Rochester, 71 AD2d 59, 67; and see Munoz v City of New York, 18 NY2d 6; Colaruotolo v City of Cohoes, 44 AD2d 616, affd 36 NY2d 716; Restatement, Torts 2d, § 662). A party may act with probable cause even though mistaken, for a mistake of fact as to the identity of a criminal may be consistent with probable cause if the party acted reasonably under the circumstances in good faith (Burt v Smith, 181 NY 1; Vennard v Sunnyside Sav. & Loan Assn., 44 AD2d 727; and see Malicious Prosecution — Mistaken Identity, Ann., 66 ALR3d 10). Conversely, the failure to make a further inquiry when a reasonable person would have done so may be evidence of lack of probable cause (see Sweet v Smith, 42 App Div 502).

Once a suspect has been indicted, however, the law holds that the Grand Jury action creates a presumption of probable cause (Lee v City of Mount Vernon, 49 NY2d 1041; Caminito v City of New York, 25 AD2d 848, affd 19 NY2d 931; Eberhardt v Consolidated Edison Co., 1 AD2d 1001, affd 3 NY2d 968; Boose v City of Rochester, 71 AD2d 59, 62, supra; Restatement, Torts 2d, § 664, subd [2]; Malicious Prosecution — Effect of Grand Jury Indictment on Issue of Probable Cause, Ann., 28 ALR3d 748; 2 NY PJI 806-808). The rule is founded upon the premise that the Grand Jury acts judicially and it may be presumed that it has acted regularly. The presumption may be overcome only by evidence establishing that the police witnesses have not made a complete and full statement of facts either to the Grand Jury or to the District Attorney, that they have misrepresented or falsified evidence, that they have withheld evidence or otherwise acted in bad faith (Lee v City of Mount Vernon, 49 NY2d 1041, supra; Hopkinson v Lehigh Val. R.R. Co., 249 NY 296, 300; Phillips v City of Syracuse, 57 NY2d 996, affg 84 AD2d 957 on opn thereat; Boose v City of Rochester, 71 AD2d 59, 69, supra; Matter of Williams v City of Hudson, 69 AD2d 921). The rule in New York differs in this respect from that in some jurisdictions which permit the presumption to be overcome by any evidence tending to show the absence of probable cause (see Malicious Prosecution — Effect of Grand Jury Indictment on Issue of Probable Cause, Ann., 28 ALR3d 748, 766-768). In this State, the trial court may not weigh the evidence upon which the police acted or which was before the Grand Jury after the indictment has issued. If plaintiff is to succeed in his malicious prosecution action after he has been indicted, he must establish that the indictment was produced by fraud, perjury, the suppression of evidence or other police conduct undertaken in bad faith.

Plaintiff maintains that the presumption has been overcome in this case for several reasons. He relies first upon the circumstance that there was no direct evidence connecting him to the victim’s death. He claims that the police should have required the witnesses to view the body of Hernandez or that at least they should have shown them the police pictures of the victim’s body before arresting him. Further, he points out that there were discrepancies in the witnesses’ descriptions of the clothing worn by the other man fighting plaintiff and that the police should have shown witnesses the victim’s jacket so that they could identify it. Finally, he contends that there is perjury in the record because of conflicting evidence about the location of Hernandez’ body when found. Undoubtedly, further avenues of investigation were open to the police before they relied on circumstantial evidence of the killer’s identity, but their failure to pursue the investigation is not the equivalent of fraud or the suppression of evidence. Nor do variations in the witnesses’ testimony prove perjury. Rather, they appear to indicate only the witnesses’ differing perceptions of the incidents they observed.

One additional point is advanced to negative the effect of the indictment. Plaintiff contends that the presumption disappeared when the District Attorney moved to dismiss the indictment. The dismissal under the circumstances of this case constituted no more than an admission that the People lacked evidence to establish a prima facie case of guilt. It was not a concession that the arrest was made without probable cause (see and compare Boose v City of Rochester, 71 AD2d 59, 69, supra [in which the indictment was superseded by a no bill]).

Accordingly, the order of the Appellate Division should be modified, with costs to defendant, by dismissing the cause of action for malicious prosecution, and the case should be remitted to Supreme Court, Bronx County, for an assessment of damages on the cause of action for false imprisonment and, as so modified, the order should be affirmed.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer and Kaye concur.

Order modified, with costs to defendant, by dismissing the cause of action for malicious prosecution and case remitted to Supreme Court, Bronx County, for further proceedings in accordance with the opinion herein and, as so modified, order affirmed.


author: Per Curiam.

text:
    In the Matter of Metromedia, Inc. (Foster & Kleiser Division), Appellant, v Tax Commission of the City of New York et al., Respondents.
    Argued September 21, 1983;
    decided October 25, 1983

      POINTS OF COUNSEL

      Thomas F. Ryan and Arthur A. Segall for appellant.
    I. The degree of physical and functional connection of the frames and the manifested intention of the parties compel the conclusion that the sign frames were not taxable real property. Functionally the sign frames are patently unrelated to the operation of the elevated railroad. The court below misapplied the controlling tests to reach a contrary conclusion. (Matter of Consolidated Edison Co. v City of New York, 44 NY2d 536; Herkimer County Light & Power Co. v Johnson, 37 App Div 257; McRea v Central Nat. Bank, 66 NY 489; Matter of Capri Marina & Pool Club v Board of Assessors, 84 Misc 2d 1096; Alabama Displays v United States Ky. Displays, 507 F2d 844; National Adv. Co. v United States, 507 F2d 850.) II. The court below erred in construing Metromedia’s contract obligations as ownership “benefits”. True beneficial ownership was in a tax exempt entity. (People ex rel. International Nav. Co. v Barker, 153 NY 98; People ex rel. Hudson Riv. Day Line v Franck, 257 NY 69; Matter of ACF Inds. v Board of Assessors, 13 AD2d 154.) III. Unresolved questions of fact relating to overvaluation precluded the granting of the city’s cross motion for summary judgment. Special Term appropriately did not address these questions but the court below erred in disregarding them.

      Frederick A. O. Schwarz, Jr., Corporation Counsel (Joseph A. Vogel and Leonard Olarsch of counsel), for respondents.
    I. Advertising display frames attached to elevated railroad superstructures are taxable real property within the contemplation of section 102 (subd 12, par [b]) of the Real Property Tax Law. The extent of their annexation and the obvious intent of Metromedia manifested in prior conduct, contractual agreements and economic and functional realities, clearly indicate that they are permanent installations. (Matter of Consolidated Edison Co. v City of New York, 44 NY2d 536; Rose v State of New York, 24 NY2d 80; Voorhees v McGinnis, 48 NY 278; Snedeker v Warring, 12 NY 170; McRea v Central Nat. Bank, 66 NY 489; People ex rel. Herzog v Miller, 170 Misc 1063, 258 App Div 724; Matter of Capri Marina & Pool Club v Board of Assessors, 84 Misc 2d 1096; Herkimer County Light & Power Co. v Johnson, 37 App Div 257; Richards-Dowdle, Inc. v State of New York, 52 Misc 2d 416; City of Buffalo v Michael, 16 NY2d 88.) II. Since title as well as beneficial ownership of the display frames were vested in Metromedia during the contract term, it cannot claim the benefit of the Transit Authority’s tax exempt status. (Matter of National Cold Stor. Co. v Boyland, 16 AD2d 267, 12 NY2d 808; People ex rel. Hudson Riv. Day Line v Franck, 257 NY 69; Matter of City of Lackawanna v State Bd. of Equalization & Assessment, 16 NY2d 222; Town of Harrison v County of Westchester, 13 NY2d 258; People ex rel. Herzog v Miller, 170 Misc 1063, 258 App Div 724.) III. Confirmation of the assessments correctly follows the court below’s denial of Metromedia’s motion for summary judgment. The consolidated challenge to the assessments sounded solely in illegality and neither the petitions nor motion papers properly presented an overvaluation claim. (Alvord & Swift v Muller Constr. Co., 46 NY2d 276; Lefft v Canada Life Assur. Co., 40 AD2d 641; Babtkis Assoc. v Tarazi Realty Corp., 34 AD2d 754; Central State Bank v American Appraisal Co.,
      33 AD2d 1009, 28 NY2d 578; People ex rel. New York Stock Exch. Bldg. Co. v Cantor, 221 App Div 193, 248 NY 533; People ex rel. Dexter Sulphite Pulp & Paper Co. v Hughes, 216 App Div 626, 246 NY 35; People ex rel. Soeurbee, Inc. v Purdy, 179 App Div 748, 222 NY 657; Matter of City of Little Falls v Board of Assessors, 68 AD2d 734; Capelin Assoc. v Globe Mfg. Corp., 34 NY2d 338.)
   OPINION OF THE COURT

Per Curiam.

Petitioner erects, leases and maintains outdoor advertising display signs throughout the City of New York. It brought these consolidated proceedings challenging the real property tax assessment of certain structures it uses for that purpose which are annexed to “El” superstructures. Special Term held the structures were not taxable as real property and vacated the assessments. The Appellate Division, relying on our decision in Matter of Consolidated Edison Co. v City of New York (44 NY2d 536), reversed the judgment and reinstated the assessments. We agree that the assessments were correctly reinstated but we modify to remit for a hearing on the issue of overvaluation.

In 1964, petitioner, through its subsidiary Foster & Kleiser, obtained the right to construct and lease outdoor advertising displays on designated structures of elevated railroad stations operated by the New York City Transit Authority (Authority). Seven years later, it entered into a 10-year contract with the Authority which continued the exclusive franchise to erect such displays on Authority property. Pursuant to this agreement, petitioner constructed over 100 advertising display signs throughout the city. Only 33 located in The Bronx are the subject of this appeal.

The 33 displays in question consist of a 13-foot by 48-foot plywood sign “face” that holds the advertisement and a 14-foot by 48-foot steel frame upon which the “face” is attached. The frame is constructed of vertical and horizontal steel members which are connected with nuts and bolts. After the frames are preassembled in petitioner’s shop, they are brought to the street site and hoisted up the “El” superstructure. There the frame is attached with nuts and bolts to small metal plates which are welded to the “El” superstructure. Electrical connections run from the display through the superstructure in order to provide nighttime illumination. Although the frames can be removed within one day, it appears that nearly all of the displays involved here have remained attached to Authority property for the 15-year period since their installation.

The agreement between petitioner and the Authority provides that petitioner was financially responsible for the construction and maintenance of the signs and it further agreed to pay the Authority a fixed percentage of gross income derived from its advertisers. Petitioner also acquired an insurable interest in the displays. Under the terms of the agreement, the Authority had the option to acquire title to the frames at the expiration of the franchise term. If it did not exercise the option, then petitioner was obligated to remove the displays. Following the expiration of the contract and after the tax years at issue, the Authority did exercise its option to acquire these frames and none have been removed.

Beginning with the tax year 1974-1975 and for five years thereafter, the city assessed all 33 displays in The Bronx as real property taxable under section 102 (subd 12, par [b]) of the Real Property Tax Law. Petitioner commenced six separate proceedings for review of these assessments contending that the sign frames are not real property but are instead personalty exempt from the ad valorem tax. Special Term granted petitioner’s motion for summary judgment and vacated the assessments. It ruled that the easy physical removability of the frames precluded a finding that they were “real property” within the definition of the Real Property Tax Law. The Appellate Division reversed, with two Justices dissenting. The majority held that the frames were physically and functionally affixed to the superstructure on a relatively permanent basis and thereby fell within the statutory definition of taxable real property, interpreted by this court in Matter of Consolidated Edison Co. v City of New York (44 NY2d 536, supra).

Section 300 of the Real Property Tax Law provides that all real property within the State is subject to an ad valorem tax. The Legislature has the power to classify property as real property or not for purposes of taxation provided there is a reasonable basis for the classification (see Matter of Consolidated Edison Co. v City of New York, supra, pp 540-541). Petitioner does not claim an unreasonable classification, it contends only that its property does not fit within the statutory definition of taxable real property. The pertinent statute defines real property as “[bjuildings and other articles and structures, substructures and superstructures erected upon, under or above the land, or affixed thereto” (Real Property Tax Law, § 102, subd 12, par [b]). The issue is whether petitioner’s frames are “affixed” to the “El” superstructure and thus constitute taxable real property under the statute.

In making this determination in the past, we have resorted to the common law relating to fixtures for guidance (cf. Matter of Consolidated Edison Co. v City of New York, 44 NY2d 536, supra; Matter of City of Lackawanna v State Bd. of Equalization & Assessment, 16 NY2d 222, 226-227). To meet the common-law definition of fixture, the personalty in question must: (1) be actually annexed to real property or something appurtenant thereto; (2) be applied to the use or purpose to which that part of the realty with which it is connected is appropriated; and, (3) be intended by the parties as a permanent accession to the freehold (23 NY Jur, Fixtures, § 2; see Voorhees v McGinnis, 48 NY 278, 282). There is evidence in the record indicating that the sign frames at issue exhibit all three characteristics.

With regard to annexation, each sign is attached to metal plates which themselves are “appurtenant” to real property in that they have been welded to the superstructure. As to use, the sign frames were devoted to one of the more common uses of the railroad station superstructure, advertising display. Finally, it appears that the parties intended the sign frames to be “permanent” over the life of the franchise agreement, as evidenced by the fact that few, if any, were removed.

Aside from a consideration of whether physical affixation has occurred, it appears here that the parties intended to structure their separate interests in the property, as they were entitled to do (see Matter of National Cold Stor. Co. v Boyland, 16 AD2d 267, affd 12 NY2d 808; People ex rel. Muller v Board of Assessors, 93 NY 308; on separability of ownership see, generally, Taxation-Buildings on Leased Land, Ann., 154 ALR 1309), so that petitioner, the franchise holder, held a taxable interest in the frames even though the Authority held title to the appurtenant real property. Although the parties’ labeling of one as owner is not enough to create a taxable interest, a finding of such an interest is justified where that party exercises dominion and control over the property (see Matter of National Cold Stor. Co. v Boyland, supra, p 275). Here such dominion and control was exercised by petitioner because it: (1) had the right to install new frames and remove uneconomical ones; (2) had the right to amortize the signs over a five-year period; (3) had an insurable interest; (4) assumed all risk with regard to installation, maintenance and operation; (5) had the exclusive right to display outdoor advertising on rapid transit structures; and (6) was required to remove the frames in the event the Authority did not exercise its right to acquire title to them.

The Appellate Division correctly determined that the petitioner’s cause of action alleging illegality should be dismissed. Because the courts below focused on petitioner’s illegality claim, however, it has not had an opportunity to establish the claim of overvaluation reserved in its motion papers before Special Term. Petitioner is entitled to a determination of that cause of action.

Accordingly, the order of the Appellate Division should be modified, without costs, by reinstating the petition insofar as it seeks relief by reason of overvaluation and the matter should be remitted to Supreme Court, Bronx County, for hearing and determination of that issue and, as so modified, affirmed.

Chief Judge Cooke and Judges Jasen, Jones, Wachtler, Meyer, Simons and Kaye concur in Per Curiam opinion.

Order modified, without costs, and matter remitted to Supreme Court, Bronx County, for further proceedings in accordance with the opinion herein and, ás so modified, affirmed.

      . The city has conceded that the plywood faces on which the advertising signs are displayed are not taxable.

      . The Consolidated Edison case is distinguishable in that it involved the question of functional attachment to the realty of floating barges whereas here we are concerned with an actual physical attachment of the sign frames to the Authority’s property by means of welded metal plates and nuts and bolts.


author: Jones, J.

text:
    In the Matter of Shubert Organization, Inc., Respondent, v Tax Commission of the City of New York et al., Appellants.
    Argued September 15, 1983;
    decided October 25, 1983

      POINTS OF COUNSEL

      Frederick A. O. Schwarz, Jr., Corporation Counsel (.Regina Feder, Leonard Olarsch and Gary Schuller of counsel), for appellants.
    Subdivision 3 of section 502 of the Real Property Tax Law provides that only the total assessment is under review. Accordingly, in determining the correctness of the total assessment, the allocation of value to its component parts is of no consequence. Where, as here, both courts below find total value to be in excess of the total assessment, the limitation on the courts’ jurisdiction to review requires confirmation of the total assessment. (Matter of 754 Fifth Ave. v Boyland, 279 App Div 908; Matter of

      Empire State Bldg. Corp. v Boyland, 1 Misc 2d 518,1 AD2d 770, 5 NY2d 715; People ex rel. Kemp Real Estate Co. v O’Donnel, 198 NY 48; People ex rel. Morse Dry Dock & Repair Co. v Purdy, 100 Misc 580; People ex rel. Strong v Hart, 216 NY 513; People ex rel. City of New York v Keeler, 237 NY 332; Matter of Pepsi-Cola Co. v Tax Comm., 19 AD2d 56; Westbury Drive-In v Board of Assessors, 70 Misc 2d 1077; People ex rel. New York Stock Exch. Bldg. Co. v Cantor, 221 App Div 193, 248 NY 533.)

      Emilio Nunez and Benjamin E. Alter for respondent.
    The court below correctly modified an erroneous judgment of Special Term. (People ex rel. City of New York v Keeler, 237 NY 332; People ex rel. Kemp Real Estate Co. v O’Donnel, 198 NY 48; City of Mount Vernon v State Bd. of Equalization & Assessment, 57 AD2d 12, 44 NY2d 960.)
   OPINION OF THE COURT

Jones, J.

In a proceeding to review tax assessments on real property, the total assessment only may be reviewed. To assist in this process factual findings may be made separately as to the value of the land and the value of improvements. Either value may be below, above or equal to the corresponding figure assigned by the board of assessors. The total assessment determined by the courts cannot, however, exceed the total assessment on the tax roll.

The premises at 1634-42 Broadway in Manhattan, known as the Winter Garden Theatre, were assessed as follows:

Year Land Building Total

1973- 1974 $3,050,000 $275,000 $3,325,000

1974- 1975 3,050,000 300,000 3,350,000

through

1978-1979

In this action to review these tax assessments, after trial Supreme Court fixed the assessments as follows:

Year Land Building Total

All years $3,300,000 $100,000 $3,400,000

The landowner purported to appeal “from so much of the [judgment] as increases and fixed the valuations of the land at $3,300,000”. The Appellate Division “modified, on the law, to vacate that portion [of the judgment] which increased the assessments for the land for the subject tax years and to reinstate the existing tax assessments on the land for those years, and otherwise affirmed”. It is evident that this determination was not intended to be read literally, that is, if the land value is reduced to $3,050,000, it cannot follow, arithmetically, that the building value is $100,000 and the total assessment is $3,400,000 as fixed by Supreme Court. Some adjustment of one or both of these other two figures would be required. We conclude that, however the language of its order is to be interpreted, the determination of the Appellate Division is erroneous.

At the threshold it is conceded by the taxing authorities that the total assessment determined in this action cannot exceed $3,350,000 ($3,325,000 for the year 1973-1974), the total assessment on the tax rolls. (People ex rel. Kemp Real Estate Co. v O’Donnel, 198 NY 48, 52-53). The consequence of this rule is that in bringing an action to review an assessment the taxpayer is not exposed to a risk that rather than being reduced his assessment will be increased. Therefore, if the order of the Appellate Division is read as “affirming” the total assessments fixed by Supreme Court in the amount of $3,400,000, it is erroneous as a matter of law.

It was also error for the Appellate Division to conclude as a matter of law that the value of the land alone cannot be fixed at a figure in excess of $3,050,000, the value assigned to the land by the board of assessors. The court’s conclusion appears to have been predicated on the proposition that for the courts to increase the value assigned to the land on the tax rolls would be impermissibly to arrogate to the judiciary an authority committed to the board of assessors — that the function of review is distinct from the function of assessment.

Subdivision 3 of section 502 of the Real Property Tax Law provides explicitly that “[o]nly the total assessment, however, shall be subject to judicial review”. Thus, the courts in the present action must limit judicial review only to the total value of $3,350,000 ($3,325,000 for the year 1973-1974). In the process of the review of the total assessments the courts are authorized and may be expected to make separate factual determinations as to the value properly to be assigned to the land and the value properly to be assigned to the building (People ex rel. Strong v Hart, 216 NY 513, 520). These are factual findings to be made on the basis of the proof in the record. Either value may be above or below or the same as the value fixed by the board of assessors; the only restriction on the judicial determination is that the total assessment it fixes cannot exceed the total assessment under review. Within the figure for total assessment, however, the components of value for land and improvement may be freely adjusted as warranted by the evidence.

Accordingly, the valuation of the land (as well as of the building) should be determined as a finding of fact; to fix it as a matter of law is error (save possibly in some unusual case, as, for instance, to give effect to a stipulation of the litigants) (Matter of Metropolitan Life Ins. Co. v Tax Comm., 53 NY2d 1050).

For the reasons stated, the order of the Appellate Division should be reversed, without costs, and the case remitted to that court to examine the factual determinations made by Supreme Court with respect to the valuation of the land and of the building as an incident to a review of the total assessments of the property, which cannot be fixed in an amount in excess of the total assessment on the tax rolls for each year.

Chief Judge Cooke and Judges Jasen, Wachtler, Meyer, Simons and Kaye concur.

Order reversed, without costs, and matter remitted to the Appellate Division, First Department, for further proceedings in accordance with the opinion herein.

       Subdivision 3 of section 502 provides: ‘The assessment roll shall contain a column for the entry with respect to each separately assessed parcel of the assessed valuation of the land exclusive of any improvements, followed by a column for the entry of the total assessed valuation. Only the total assessment, however, shall be subject to judicial review provided by article seven of this chapter.” In People ex rel. Kemp Real Estate Co. v O’Donnel (198 NY 48), the court, as did the Appellate Division in the case at bar, held that the assessed value of the land component was the maximum land value which could be assigned to the land in calculating total value despite a factual finding of higher land value. A year later in 1911 the Legislature amended section 21-a of the Tax Law (now Real Property Tax Law, § 502, subd 3) to provide that “[t]he total assessment only can be reviewed” (L1911, ch 117). It was said that the purpose of this legislative enactment was to overturn the ruling in the Kemp Real Estate case (see People ex rel. Morse Dry Dock & Repair Co. v Purdy, 100 Misc 580, 583). In any event the amendment has been held to prohibit review of either the land or the building assessment separately (People ex rel. Strong v Hart, 216 NY 513, 519-520, 525). The decision in People ex rel. City of New York v Keeler (237 NY 332) on which the landowner and the Appellate Division relied involved three separate parcels which had been treated as if combined and is thus inapposite.