text:
    The People of the State of New York, Respondent, v. Albebt O. Rossi, Appellant.
    Argued March 12, 1959;
    decided April 9, 1959.

      Eugene G. Lamb and Albert A. Oppido for appellant.
    I. It was error to deny defendant-appellant’s motion to dismiss the People’s appeal. (People v. Dundon, 113 App. Div. 369; People v. Fay, 268 App. Div. 135; People v. Zerillo, 200 N. Y. 443; People v. Brindell, 194 App. Div. 776; People v. Mellon, 261 App. Div. 400; People v. Rosenheimer, 209 N. Y. 115; People ex rel. Weeks v. Platt, 173 App. Div. 451; People v. Hines, 168 Misc. 453; People v. Kupferman, 175 Misc. 650; People v. Herbert, 152 App. Div. 579; People ex rel. Newton v. Special Term, Part I, 193 App. Div. 463; People v. Reed, 276 N. Y. 5; People v. Gersewitz, 294 N. Y. 163; People v. Mulligan, 259 App. Div. 750.) II. The People may not prosecute a number of takings as one larceny and by the same indictment prosecute each taking as a separate larceny. (People v. Cox, 286 N. Y. 137; Selvester v. United States, 170 U. S. 262; Dunn v. United States, 284 U. S. 390; People ex rel. Maurer v. Warden, 2 N Y 2d 259.) III. The allegations in count one of the indictment are insufficient in law. (People v. Robertson, 201 App. Div. 869, 235 N. Y. 548; People v. Gutterson, 244 N. Y. 243.) IV. The allegations of the first count of the indictment are insufficient to confer jurisdiction upon the court. (People v. Hudson Val. Constr. Co., 217 N. Y. 172; Matter of Murtagh v. Leibowitz, 303 N. Y. 311; People v. Werblow, 241 N. Y. 55; People v. Weed, 153 Misc. 404; People v. Hetenyi, 277 App. Div. 310.)

      Manuel W. Levine, District Attorney {Henry P. De Vine of counsel), for respondent.
    I. A judgment allowing a demurrer to a single count of a multi-count indictment is a final order and appealable. (Rettich v. United States, 84 F. 2d 118; People ex rel. Maurer v. Warden, 2 N Y 2d 259; People v. Canepi, 181 N. Y. 398; People v. Callahan, 29 Hun 580; People v. Bink, 151 App. Div. 271.) II. The failure to amend section 518 of the Code of Criminal Procedure does not necessarily prove intent to withhold the People’s right of appeal. (People v. Rosenheimer, 209 N. Y. 115; People v. Hines, 168 Misc. 453; People ex rel. Weeks v. Platt, 173 App. Div. 451; People v. Kupferman, 175 Misc. 650; People v. Cox, 286 N. Y. 137; People v. Merrill, 14 N. Y. 74; People v. Mulligan, 259 App. Div. 750; People v. Reed, 276 N. Y. 5.) HI. Continuous takings pursuant to successive false pretenses flowing from a single impulse may be charged as one continuous grand larceny. (People v. Cox, 286 N. Y. 137; People v. Miller, 169 N. Y. 339; Ranney v. People, 22 N. Y. 413; People v. Miles, 123 App. Div. 862; People v. Noblett, 244 N. Y. 355; People v. Dumar, 106 N. Y. 502; Zink v. People, 77 N. Y. 114; Loomis v. People, 67 N. Y. 322; People v. Label, 298 N. Y. 243; People v. Karp, 298 N. Y. 213.) IV. Different crimes were properly charged in one indictment. (Selvester v. United States, 170 U. S. 262; Dunn v. United States, 284 U. S. 390; People ex rel. Maurer v. Warden, 2 N Y 2d 259.) V. The first count contains a plain and concise statement of the criminal act without unnecessary repetition. (People v. Williams, 243 N. Y. 162; People v. Corbalis, 178 N. Y. 516; People v. Dimick, 107 N. Y. 13; People v. Conroy, 97 N. Y. 62.) VI. The allegation of jurisdiction is sufficient. (People v. Hudson Val. Constr. Co., 217 N. Y. 172; People v. Kastel, 221 App. Div. 315, 250 N. Y. 518; People v. Cosmides, 133 App. Div. 103, 198 N. Y. 566; People v. Peckens, 153 N. Y. 576; People v. Wicks, 11 App. Div. 539, 154 App. Div. 766; People v. Licenziata, 199 App. Div. 106; People v. Mather, 4 Wend. 229; People v. Thorn, 21 Misc. 130.)
   Desmond, J.

The County Court allowed a demurrer to the first count of a 19-count indictment and the People appealed to the Appellate Division. That court denied a motion to dismiss the appeals, and reversed the order allowing the demurrer. Defendant appeals to this court by permission.

The general theory of the whole indictment is that defendant, a physician, cheated a “Blue Shield ” insurance corporation out of $612 by collecting from the corporation on nine claims (each for less than $100) for rendering a certain kind of medical services (the same kind in every instance) to insured persons. The People charge that the claims as so rendered and paid contained false and fraudulent representations. These charges are expressed in the indictment in one count of first degree grand larceny, nine counts of petit larceny and nine counts of filing false insurance claims (Penal Law, § 1202). The first, or grand larceny, count included all nine transactions charging, apparently on a theory like that upheld in People v. Cox (286 JSL Y. 137), that the collection of all nine claims amounted to one taking by false pretenses. The other counts take up each claim separately and charge it just as a petit larceny, then as a false insurance claim. We are concerned here with the first count only since that count alone was held insufficient.

Two questions are presented by this appeal and each is of first impression in this court. First, we must decide whether there was a right of appeal from the County Court order allowing the demurrer as to the first count only. In effect, we answered that question affirmatively in People v. Mullens (298 N. Y. 606). Defendant says, correctly, that the only applicable statute is subdivision 1 of section 518 of the Code of Criminal Procedure which allows an appeal by the People ‘1 From a judgment for the defendant, on a demurrer to the indictment ”. That means, says defendant, a judgment sustaining a demurrer to the whole of an indictment. Until 1945 and because of a holding or dictum in People v. Rosenheimer (209 N. Y. 115), it was assumed at least in some courts (People ex rel. Weeks v. Platt, 173 App. Div. 451, 453; People v. Mulligan, 259 App. Div. 750) that section 323 of the Code of Criminal Procedure at the point where it permitted a defendant to “ demur to the indictment ” meant the whole indictment. In other words, before 1945 if one count of a multi-count indictment was good the entire indictment was good as against a demurrer.

In 1945 (L. 1945, ch. 629) section 323 of the Code of Criminal Procedure was amended to allow a defendant to demur “ to an indictment, or any count thereof ”. But the Legislature never changed subdivision 1 of section 518 {supra) which continues to authorize an appeal by the People “ From a judgment for the defendant, on a demurrer to the indictment ”. Defendant argues, therefore, that while a demurrer to less than all counts is now available, nevertheless, since the Legislature did not add the words ‘1 or any count thereof ’ ’ to the appeal provision (§ 518, subd. 1, supra), the allowance of a demurrer to a single count or less than aE counts is not appealable. We do not agree. While the right to appeal in criminal cases is found only in statutes which must be strictly construed (People v. Zerillo, 200 N. Y. 443, 446; People v. Gersewitz, 294 N. Y. 163, 166,167), defendant’s construction is too strict. There is broad authorization in section 279 of the Code of Criminal Procedure for the joinder in one indictment of several counts, or consolidation of several indictments, where the acts or transactions are connected in certain ways. In the present case the charges could have been presented in 19 separate indictments and in that case the People could certainly have appealed from the aEowance of a demurrer to any one indictment. No good reason appears why, with the charges stated in separate counts rather than separate indictments, a dismissal of one count should not be appealable. The use of the word “ judgment ” rather than the word order ” in subdivision 1 of section 518 (supra) does not decide our question since the aEowance of a demurrer to even one count is a final disposition of that charge. Awkward indeed it would be if the dismissal of a single count could not be reviewed immediately but had to await an appeal from a judgment of conviction on other counts. We should not impute to the Legislature an intent to create such a situation.

Next is the question of whether the demurrer. should be aEowed—that is, the question of the sufficiency as a pleading of the first degree grand larceny count. That count accumulates aE nine of these aEeged incidents into one taking, in an effort to apply People v. Cox (286 N. Y. 137, 145, supra). The Cox holding was that “ the People may prosecute for a single crime a defendant who, pursuant to a single intent and one general fraudulent plan, steals in the aggregate as a felon and not as a petty thief.” The argument against applying the Cox rationale here is that, since these are aEeged to have been false pretense takings (see Penal Law, §§ 1290, 1290-a) with a separate pretense each time, there needs must have been in each instance a separate intent and a new enterprise. Of course, on the trial that may turn out to have been the fact. But the indictment alleges that this was in effect one taking with a single intent, carried out in successive stages. Proof of all that could make out a jury question of whether this was grand larceny under the Cox rule (see People v. Daghita, 276 App. Div. 20, 22, affd. 301 N. Y. 223, 225).

The order appealed from should be affirmed.

Chief Judge Conway and Judges Dye, Fund, Froessel, Van Voorhis and Burke concur.

Order affirmed.


source: Caselaw Access Project

author: Van Voorhis, J.

license: Public Domain

text:
    The People of the State of New York, Respondent, v. Abie Zuckerman, Appellant.
    Argued January 19, 1959;
    decided April 9, 1959.

      Samuel W. Gilman for appellant.
    I. The Appellate Division has the right generally to reverse, modify, alter, mitigate and otherwise treat with judgments of conviction and sentence imposed by courts of inferior jurisdiction. (People ex rel. Davidson v. Morhous, 265 App. Div. 892; People v. Spagnolia, 260 App, Diy. 551; People v. Speiser, 277 N. Y. 342; People v. Potskowski, 298 N. Y. 299.) II. The right granted to the Appellate Division by the State Constitution to review criminal judgments, reduce sentences and mitigate punishments cannot be curtailed or circumscribed by statute in the absence of appropriate amendment to the Constitution. (People v. Gross, 5 A D 2d 878.) III. Since an indeterminate term prescribes no minimum term, but only a maximum term, a prisoner can be released immediately when he commences to serve his sentence, and his release by the Appellate Division meets with the .requirements of section 543 of the Code of Criminal Procedure.

      Edward S. Silver, District Attorney (William I. Siegel of counsel), for respondent.
    The Appellate Division is empowered under the law to modify a judgment imposing an indeterminate term in the New York City Penitentiary. (People v. Porfido, 279 App. Div. 1036; People v. Baker, 280 App. Div. 899; People v. Rivera, 5 A D 2d 853; People v. Gross, 5 A D 2d 878; People v. Speiser, 277 N. Y. 342; People v. Hyde, 3 A D 2d 854; People ex rel. Quinn v. Schleth, 180 App. Div. 319; People v. Hunter, 3 A D 2d 926, 4 N Y 2d 692; People ex rel. Lozzi v. Fay, 6 A D 2d 18; People v. Moran, 281 App. Div. 865, 306 N. Y. 662, 857.)
   Van Voorhis, J.

Appellant pleaded guilty to a charge of attempted possession of a dangerous weapon as a felony under section 1897 of the Penal Law. A bizarre factual picture is presented in the circumstances leading to this man’s arrest, culminating in his shooting on several occasions at the wall of the residence of another man who knew but refused to disclose the identity of a third man, by whom appellant believed himself to have been wronged. An indeterminate penitentiary sentence was imposed under section 203 of the Correction Law, carrying a maximum of three years. A prisoner may be released sooner by the Parole Commission subject to approval of the sentencing court. On appeal to the Appellate Division, the sole issue related to excessiveness of the sentence. The court majority did not consider whether the sentence was excessive, but affirmed on the ground that “As a matter of law, this court is without power to change such a sentence (People v. Porfido, 279 App. Div. 1036; People v. Baker, 280 App. Div. 899; People v. Rivera, 5 A D 2d 853).” The sole question before us is whether the Appellate Division has power to review an indeterminate penitentiary sentence under section 203 of the Correction Law. Under section 543 of the Code of Criminal Procedure, implementing section 8 of article VI of the State Constitution, 1 the Appellate Division has complete jurisdiction to reduce the sentence ” (People v. Speiser, 277 N. Y. 342, 344). The only express limitation upon that power is that the Appellate Division may not reduce a sentence imposed to a sentence “ lighter than the minimum penalty provided by law for [an] offense ”. No minimum is prescribed by section 1935 of the Penal Law, which prescribes the punishment for violations of section 1897. This power has frequently been exercised (e.g., People v. Hyde, 3 A D 2d 854, and cases cited). The cases cited by the majority of the Appellate Division as holding that it lacks power to review this kind of a sentence were all decided on the authority of People v. Porfido (279 App. Div. 1036).

What was said in Porfido is correct, following People v. Thompson (251 N. Y. 428), that it may not be presumed that the sentencing court imposed a sentence to serve an indeterminate term as a punishment more severe than the definite terms of sentence in the absence of a finding of incorrigibility. But appellant had the right to have the Appellate Division review the refusal to suspend sentence or the execution of sentence (People v. Moran, 281 App. Div. 865, affd. 306 N. Y. 662). One of the Justices at the Appellate Division, at least, considered that the sentence should be limited to the time already served, and, for aught that appears to the contrary, the majority may have agreed with him except that they considered that they lacked the power. In People v. Porfido (supra), no request was made of the sentencing court to suspend the sentence, nor was suspension considered by the Appellate Division. Under the broad powers of the Appellate Division to reduce sentences is included the power to hold, in a proper case, that sentence or the execution of sentence should be suspended. We are not called upon to decide whether there should be a suspension in this instance, but whether the Appellate Division has power to do so where section 203 of the Correction Law has been applied. We think that the Appellate Division has that power, and that it unduly circumscribed its jurisdiction by the order appealed from. We need not now decide whether, if sentence or its execution be not suspended, an appeal may lie dormant until or be taken from a determination of the sentencing court refusing to approve a discretionary release within three years by the Parole Commission (Correction Law, § 204, subd. [a], par. [2]).

The judgment appealed from is reversed upon the ground that the Appellate Division is empowered to modify the sentence imposed by the County Court, and the matter remitted to the Appellate Division for further proceedings not inconsistent with this opinion.

Chief Judge Conway and Judges Desmond, Dye, Ftjld, Fboessel and Burke concur.

Judgment reversed, etc.


author: Fuld, J. Dye, J. (dissenting).

text:
    Alexander Rosensweig, as Administrator of the Estate of George Flores, Deceased, Appellant, v. State of New York, Respondent.
    (Claim No. 31049.)
    Argued November 7, 1958;
    decided April 9, 1959.

      Jacob D. Fuchsberg, Abraham Fuchsberg and B. Hoffman Miller for appellant.
    I. The regulatory provisions, whereby the State created the Boxing Commission, imposed upon it, as its agent, a duty to safeguard the health and well-being of prize fighters. Its negligent failure to do so is actionable. (Matter of Tilelli v. Christenberry, 1 Misc 2d 139; Fitzsimmons v. New York State Athletic Comm., 15 Misc 2d 831, 162 App. Div. 904; Amberg v. Kinley, 214 N. Y. 531.) II. The testimony of all the doctors supports the findings of the Court of Claims that all the circumstances of the two fights previous to the fatal bout had placed the examining physician on notice of a possible brain injury and that, under the circumstances, standard medical practice required that Flores be given a rest of six to eight weeks. (Pike v. Honsinger, 155 N. Y. 201; St. George v. State of New York, 283 App. Div. 245, 308 N. Y. 681.) III. The evidence supports the Court of Claims’ findings that death resulted from the negligence of the commission and its physicians. (Cornbrooks v. Terminal Barber Shops, 282 N. Y. 217; Ingersoll v. Liberty Bank of Buffalo, 278 N. Y. 1; Dunham v. Village of Canisteo, 303 N. Y. 498; Dillon v. Rockaway Beach Hosp., 284 N. Y. 176; Rosenberg v. Schwartz, 260 N. Y. 162; Noseworthy v. City of New York, 298 N. Y. 76.) IV. Flores, without an appreciation of the medical dangers known to defendant, did not assume the risks inherent therein. (Pollard v.
      Trivia Bldg. Corp., 291 N. Y. 19; Gould v. State of New York, 196 Misc. 488; McEvoy v. City of New York, 266 App. Div. 445; Larson v. Nassau Elec. R. R. Co., 223 N. Y. 14.) V. The State is liable for the acts of the physicians who examined Flores. (Callahan v. Munson S. S. Line, 141 App. Div. 791; Baldwin v. Abraham, 57 App. Div. 67, 171 N. Y. 677; Bartolomeo v. Bennett Contr. Co., 245 N. Y. 66.)

      Louis J. Lefhowitz, Attorney-General (Paxton Blair of counsel), for respondent.
    I. The testimony directed toward proving negligence on the State’s part was so guarded, conjectural and inconclusive as to justify the Appellate Division in dismissing the claim. This is true both as to the evidence that there was a pre-existing injury to the intestate which the doctors ought to have detected and the effects of which had not ceased, and the evidence that the pre-existing injury rendered fatal a blow which would not otherwise have been so. (Noseworthy v. City of New York, 298 N. Y. 76.) II. When the State, pursuant to law, sets up a panel of qualified physicians from whom a promoter may select any one and ask him to examine and certify a boxer as fit to fight (the promoter paying the fee), the members of the panel do not become the State’s agents so as to make the State responsible in damages if the examination be negligently conducted. (Woodhull v. Mayor of New York, 150 N. Y. 450; Lacoch v. City of Schenectady, 224 App. Div. 512, 251 N. Y. 575; Matter of Evans v. Berry, 262 N. Y. 61; Miller v. Town of Irondequoit, 243 App. Div. 240, 268 N. Y. 578.)
   Fuld, J.

Knocked out by Roger Donoghue in the eighth round of a bout held in Madison Square Garden on August 29, 1951, following two very hard blows to the head, George Flores died several days later of cerebral hemorrhage and cerebral edema. This suit for wrongful death followed, it being alleged by his administrator that the State of New York was negligent in licensing and permitting Flores to fight when it knew, or should have known, that he was not in proper physical condition to engage in the fight. Flores had participated in two earlier fights, one on July 24, the other on August 14 (also against Donoghue), and each had come to an end when Flores suffered a technical knockout. The claim of negligence is based on the hypothesis that death was not the result of the blows received in his last fight, but rather the aggravation of a brain injury previously suffered, which should have been detected by the doctors, assertedly employees of the State, who found him physically fit to fight.

Flores had been examined before and after each of the fights by physicians selected, the record indicates, by the corporation promoting the matches from a panel set up by the Medical Advisory Board of the New York State Athletic Commission. The doctor who examined him after the conclusion of the first fight, on July 24, found him “ O.K.” Dr. Bockner, who was at the second fight, examined him twice, several hours apart, before the match got under way and described his ‘ ‘ physical condition [as] perfect.” Then, after the fight had been stopped, the doctor again examined him twice —■ in the ring immediately after the knockout and, the second time, a half hour later, in his dressing room. Observing that Flores had suffered no cuts, no bruises and no concussion and that his heart, his system and reflexes were all “ perfectly normal,” Dr. Bockner expressed the opinion that he “ left the ring in good shape and * * * could continue to fight.” When application was made for Flores to take part in a match to be held on August 29, an electroencephalogram (EEG-) was ordered as a precautionary measure and Flores was considered “suspended” until the results of the encephalogram became known. One was taken and it revealed no abnormality and was interpreted as “ normal ” and “ generally good”; although it did indicate a “slowing anteriorly ”, that was not significant, it was said, because no earlier tracing was available for comparison.

The physician present at the last fight was Dr. Nardiello. Aware of Flores’ earlier technical knockouts, the doctor testified that he not only “ spen[t] a lot of time with him,” subjecting him' to a thorough physical examination shortly before the bout began, but that he also studied the reports of the other doctors and the electroencephalogram taken some days before. Based on all this, it was Dr. Nardiello’s opinion that Flores was ‘ ‘ in excellent condition. ’ ’ Indeed, it was his view — as well as of Donoghue, Flores’ opponent —that he met his death as a result of injury sustained during the fight itself; the blow, a devastating one, was a left hook to the head, a “ hard * * * solid punch,” “with [Donoghue’s] full weight behind it,” “ perfectly timed and perfectly thrown. ’ ’

Flores went into a coma some hours after the fight. A brain operation was performed which was unsuccessful in saving his life. The surgeon who performed the operation, Dr. Daniels, testified that he observed “ no scar tissue ” and “ no evidence ” of any “ injury pre-existing the .injury ” received in the ring during the August 29th bout, but he voiced an opinion, in answer to a hypothetical question, that Flores may have sustained a concussion before that date. Dr. Helpern, the medical examiner who performed the autopsy, stated that he found no indications of any prior injury.

On the other hand, Dr. Somberg testified that, based on his examination of the medical record, it was his opinion that Flores had received injuries in the earlier contests and that death was caused “by the damage that he took” in those fights, “ plus the damage in the third fight, plus the damage of his head striking the canvas.” Dr. Somberg also asserted that it was better medical practice that a boxer severely beateri about the head should not fight again for six weeks or two months.

The Court of Claims awarded the claimant $80,000; it was its view that the doctors who examined Flores were servants of the State and that they were negligent in not discovering that he had suffered a brain injury before his last fight. Upon appeal, the judgment was reversed and the claim dismissed. Although it expressed a “ serious doubt ” as to whether the doctors were employees of the State, the Appellate Division found it unnecessary to decide that question, holding that, even assuming the existence of an employer-employee relationship, the claimant failed to establish either negligence or causation.

Our approach is different. We choose to place our decision on the ground not decided by the Appellate Division and, accordingly, we do not pass upon the issue of negligence. Study of the problem persuades us that the doctors were not employees of the State and, consequently, even if they were careless, their negligence could not in any event be imputed to the State.

Although this State has wisely waived its sovereign immunity against suit generally (Court of Claims Act, § 8) and, perhaps, “ more completely than any other American jurisdiction ” (Herzog, Liability of the State of Hew York for “Purely Governmental ” Functions, 10 Syracuse L. Eev. 30), it is essential, at the very least, that the person for whose negligent conduct the State is sought to be charged be engaged in its service. The doctors who examined Flores were, quite obviously, not employees of the State, but' it is suggested on behalf of the claimant that an intention on the part of the State to assume liability for the acts of these doctors is to be found in the legislation relating to boxing. Analysis of the statute, however, as well as its history, demonstrates the contrary.

“ The common law of Hew York,” it has been noted, “ placed no bar on the holding or conduct of [boxing] matches.” (Zwirn v. Galento, 288 N. Y. 428, 432-433.) However, for many decades the penal laws of this State contained a complete prohibition of prize fighting (L. 1856, ch. 98; Penal Code [L. 1881, ch. 676], § 458; now Penal Law, § 1710). Its reintroduction dates from 1911, when the Legislature passed a law permitting boxing exhibitions to be resumed under stringent regulations, subject to the supervision of a newly created State Athletic Commission, and provided that the contests were to be excepted from the ban of the penal laws (L. 1911, ch. 779). The objectives of this legislation were well described by Justice Seabury, as he then was, a few years after its enactment in Fitzsimmons v. New York State Athletic Comm. (15 Misc 2d 831, 833, affd. 162 App. Div. 904):

“ Confronted with the question as to whether it should prohibit prize fighting or sparring altogether, or leave such contests unaffected by legislation, the law-making body of this State has adopted a middle course and has legalized boxing when conducted under State control. Two main purposes have prompted such legislation: First, the desire to prevent as far as possible certain brutal and degrading features which have in the past sometimes attended such contests, and, second, to promote and protect such contests when conducted within the legitimate limits of a sport. To achieve those purposes the state has created the Athletic Commission and authorized that commission to prescribe stringent rules governing the conditions under which such contests can be held. * * * Beading [the] two statutes together, it is apparent that the vocation of prize fighting or sparring is an occupation subject to governmental control.”

Further elaboration occurred with the enactment in 1920 of the so-called Walker Boxing Law- which, continuing the State Athletic Commission, has remained on the books without any fundamental changes to the present time (L. 1920, ch. 912, as amd. by L. 1948, ch. 754; L. 1952, ch. 666). The statute, exceedingly broad in its coverage, provides for rigid supervision of the premises in which the matches or exhibitions are held, of all who participate in the exhibitions in any capacity and of the methods of conducting the matches. The primary means employed to effect enforcement is a system of licensing, with exclusion of the unlicensed and power to penalize the licensed for violations or infringements. The standards imposed by the statute, it is provided, may be implemented by regulations promulgated by the commission, a power, we note, which has been frequently exercised.

The statute itself reflects a high concern for the physical fitness of the fighters scheduled to engage in the matches. Such fitness will, of course, enhance the competitive character of the contest and it may fairly be assumed that the Legislature was at least as concerned with the physical welfare of the contestants themselves. Accordingly, the statute, as it read in 1951 when the fight took place, prescribed that 11 All boxers must be examined by a physician designated by the commission before entering the ring” (§ 23, as amd. by L. 1948, ch. 754, § 5 [now § 25]), that a physician must be in attendance at every boxing * * * match” (§ 13, as amd. by L. 1948, ch. 754, § 3 [now § 26]) and that a report of physical examinations must be filed by the corporation promoting the match ‘ ‘ not later than twenty-four hours after the termination of the contest” (§ 23, as amd. by L. 1948, ch. 754, § 5 [now § 25]). The doctors so employed are selected from a list of qualified physicians ’ ’ recommended to the commission 1 from time to time ” by its Medical Advisory Board, a body consisting of nine members appointed by the Governor (§ 12-a, as added by L. 1948, eh. 754, § 2 [now § 4]; § 13, as amd. by L. 1948, eh. 754, § 3 [now § 26]). The board also recommends to the commission the fees for such physicians which are to be paid by the promoting corporation (ibid.). In addition, the board “from time to time” is to submit to the commission for approval “ such additional regulations and standards of examination as in their judgment will safeguard the physical welfare of professional boxers * * * licensed by the commission ” (§ 12-a, subd. 2, as added by L. 1948, ch. 754 [now § 4, subd. 2]).

Turning more directly to the action before us, the only negligence charged or found is that of the doctors who conducted the examination of Flores. But, on the plainest principles of construction, the State has carefully avoided making these physicians its own servants or employees. It is true that the State established the panel—which now consists of some 60 doctors, half of whom are in the New York City area—but this is only the customary exercise of the police power in the regulation of a permitted subject. All persons require a license to practice medicine in this State, and the establishment of a limited number of such doctors to .perform a specialized service is no more than similar selection for other subjects of specialization, §qch as psychiatry.

To be sure, the corporation promoting the contest was required to employ for this purpose a physician included on the panel. This, without more, is a phenomenon of everyday occurrence. No one would seriously suggest that every person to whom the State has issued a license to practice his profession or trade thereby becomes an employee or agent of the State. Nor is such a relationship created by virtue of the fact that the State may also prescribe the amount of the fee to be charged; regulation, no matter how close or stringent, is not thereby transmuted into government operation. Indeed, where the employment is made mandatory, it is not uncommon to prescribe the fee in order to prevent gouging. It is a familiar experience to many that only specially licensed tow trucks are permitted to come to the assistance of motorists on certain highways and that the towing fee is prescribed. By so doing, the authorities do not make themselves responsible for the manner in which the service is performed.

There is nothing in the Walker Boxing Law or in the Rules of the State Athletic Commission which, suggests that the examining doctors, paid by the promoting corporation, are servants of the State or, in performing their duties, are subject to control or supervision by the commission. The plain fact of the matter is that, however stringent the requirements, the scheme embodied in the statute is solely a regulatory measure. Every such regulatory statute presupposes public purposes. The Legislature evidently considered that the reduction in the risk of permanent injury to fighters constituted such a purpose, and that was its right. There is no indication, however, that there was any design to transfer such risks to the State. By providing a safeguard through the requirement of a physical examination, the State did not undertake to insure that it would always be effective. It is difficult to conceive that the Legislature, in enacting the statute, ever considered the possibility that these doctors could be deemed servants of the State for whose negligence it would be held responsible. Precisely similar requirements are imposed for referees and judges whose fees are likewise prescribed by the commission (§§ 1, 7; Rules of Commission, former rule 41 [1ST. Y. Off. Comp, of Codes, Rules & Regulations, Vol. 2, p. 1220], now rule F, § 11 [N. Y. Off. Comp, of Codes, Rules & Regulations, 8th Off. Supp., p. 540]), and yet it could hardly be claimed that the State would be answerable in damages if, for instance, a referee negligently failed to terminate a bout. The State adopted a parallel scheme when it created the State Harness Racing Commission (Pari-Mutuel Revenue Law [L. 1940, ch. 254, as amd.], art. II, § 35 et seq., particularly §§ 41, 41-a, added by L. 1953, ch. 391, § 8) and, if the claimant’s position were here upheld, all racing officials who are licensed and have their compensation fixed by that commission would, by a parity of reasoning, become servants of the State. Such an enlargement of public employment should be made consciously if it is intended. Regulation is ordinarily regarded as a means of avoiding governmental operation, rather than a subtle embodiment of it. (See, e.g., Lavitt v. United States, 87 F. Supp. 149, affd. 177 F. 2d 627.)

In other words, although the State has by these measures sought to make a dangerous sport less dangerous and, indeed, may have retained a limited power of supervision over the physical examinations provided for, that does not mean that the Legislature constituted the examining doctor a servant or employee of the State so as to render it liable for his negligent act. It is probable that, even in a purely private context, persons situated as are these doctors would be held to be “ independent contractors,” for whose independent negligent acts the party requesting the performance of the service would not be responsible. (Cf. Broderick v. Cauldwell-Wingate Co., 301 N. Y. 182, 187, and Moore v. Wills, Inc., 250 N. Y. 426, 428-429 [general contractor not liable for independent negligent act of subcontractor].) However that may be, though, we reject the novel thesis that a person may be a “constructive” state agent. Agency cannot be thrust upon the State against its will and' only the Legislature can authorize persons to perform services for the State as its servants, and this the Legislature carefully refrained from doing in the case of these doctors. Although we have come upon no decision by a New York court in which the contention urged by the claimant has been advanced, an argument not too unlike it was considered and rejected in a case arising under the Federal Tort Claims Act. (See Lavitt v. United States, 87 F. Supp. 149, 150-151, affd. 177 F. 2d 627, 630, supra.)

In the view which we have taken, we do not reach the question of the State’s responsibility if the doctors had been in its employ (see Herzog, op. cit., 10 Syracuse L. Rev. 30, 36-38). We rest our decision solely on the ground that, since the physicians who examined Flores were not employees or agents of the State, no suit may be maintained against it for their alleged negligence.

The judgment appealed from should be affirmed, without costs.

Dye, J. (dissenting).

On September 3, 1951 the claimant’s intestate, George Flores, a professional fighter, died from injuries he received in a prize fight held in Madison Square Garden on August 29, 1951. His administrator, the appellant herein, filed this claim for wrongful death against the State of New York alleging that the State, acting through its duly authorized agency, the State Athletic Commission and its Medical Advisory Board (L. 1920, eh. 912, as amd.), was negligent in issuing its license for the fight in question. The negligence claimed is based on the circumstance that, prior to the fatal fight and on July 24, 1951 and on August 14, 1951, the decedent had participated in two boxing matches in each of which he suffered a technical knockout (TKO); that, because of these prior beatings, he was rendered so physically unfit as to make it unsafe and improper for him to engage in the match in question, all of which was known to the examining physician, and that to license him to fight under such known circumstances subjected him to a serious and unwarranted risk.

Following a long trial the Court of Claims (Youttg, J.) made an award in favor of claimant in the sum of $80,000, it having found that the negligence of the examining physician was attributable to the State and rendered the State liable in the premises; that the decedent did not assume the risk of the State’s negligence and was not contributorily negligent.

The Appellate Division reversed the judgment entered on the award and dismissed the claim on the general ground that, even though it be assumed that the examining physician was an employee of the State (which it doubted), the issuance of the license under the circumstances was no more than an error of judgment on the part of the examining physician for which the State is not liable (St. George v. State of New York, 283 App. Div. 245, affd. 308 N. Y. 681).

In New York, all prize fights and boxing exhibitions are illegal except those authorized by the so-called Walker Boxing Law (L. 1920, ch. 912, as amd.). The purpose prompting such legislation was “ to prevent as far as possible certain brutal and degrading features which have in the past sometimes attended such contests, and, second, to promote and protect such contests when conducted within the legitimate limits of a sport.” (Fitzsimmons v. New York State Athletic Comm., 15 Misc 2d 831 [Seabury, J.].) To achieve these worthy purposes, the Legislature created the State Athletic Commission with power to promulgate stringent rules governing the conditions under which fights can be held and gave exclusive control of every phase of the sport, including its personnel, through a system of bonding, licensing and penalties. A license to fight or conduct a fight is a privilege and not a right (Matter of London Sporting Club v. Helfand, 3 Misc 2d 431; Matter of Christensen v. Helfand, 208 Misc. 302). By express provision of law, licenses may "be withheld by the commission whenever the participants fail to meet certain standards as to character and general fitness (§ 12, as added by L. 1952, ch. 666, § 11). To make sure that the fighters participating in boxing matches are physically fit, and for the purpose of safeguarding their physical welfare, a Medical Advisory Board has been created consisting of nine licensed physicians of at least five years’ experience in practice, appointed by the Governor, whose duty it is, among others: ‘ to prepare and submit to the commission for approval regulations and standards for the physical examination of professional boxers and wrestlers. The board shall continue to serve in an advisory capacity to the commission and from time to time prepare and submit to the commission for approval, such additional regulations and standards of examination as in their judgment will safeguard the physical welfare of professional boxers and wrestlers licensed by the commission. The advisory board shall recommend to the commission from time to time such qualified physicians, for the purpose of conducting physical examinations of professional boxers and wrestlers, and other services as the rules of the commission shall provide; and shall recommend to the commission a schedule of fees to be paid to physicians for such examinations and other services as required by this act.” (§4, subd. 2, as amd. by L. 1952, ch. 666, § 4.)

Pursuant to such authorization, the Medical Board recommended to the commission a list of qualified physicians for the purpose of conducting physical examinations of boxers and wrestlers. It is from this panel that the names of the physicians who made the several examinations of the decedent Flores were selected. While, ostensibly, the corporation had a choice, in practice, it worked out that the examinations were invariably made by the same physicians. In this instance, Dr. Vincent Nardiello, a licensed physician, had been on the panel since 1932, from 1934 had received most of the Madison Square Garden assignments and, since the death of Dr. Walker, had received most of the assignments for the Madison Square Garden and the St. Nicholas Arena. A routine pattern is followed: The main bout fighters are examined five days before a fight, again on the night of the fight and the physician attends all fights and, on occasion, examines a fighter afterwards. Under such a restricted set-up, both as to duties involved and the limitations on the personnel charged with the performance of such duties, it seems obvious that the State retained such a close and exclusive direction and control over the physical examinations of the boxers and the physicians who made the examinations as to render the State liable for the negligent performance of the duties imposed. Nothing turns on the circumstance that the physician’s examining fee was paid by the corporation. That is not enough to relieve the State of the responsibility incident to control. The amount of the fee, we must remember, is also fixed by the regulation and seems to be treated as a cost of doing business rather than a measure of the value of the service rendered (Bules and Regulations of State Athletic Comm., former § 41 [N. Y. Off. Comp, of Codes, Rules & Regulations, Yol. 2, p. 1220]). Neither the corporation nor the boxer had any choice in the matter. Neither could select a physician of his own choice. The examination was not made at the request of either, but by direction of the commission, the members of iwhich relied on the report in determining whether to allow or ¡forbid the fight. Such a situation falls within the well-estabfished proposition that the true test of the relationship of master and servant is not who pays the wages but whether, at the time pf the injury complained of, the alleged servant is engaged in the business of the master and subject to his direction and ¡control (Baldwin v. Abraham, 57 App. Div. 67, affd. 171 N. Y. 1677; Bartolomeo v. Bennett Contr. Co., 245 N. Y. 66; Callahan v. Munson S. S. Line, 141 App. Div. 791).

So viewed, the Court of Claims correctly found as matter of fact and law that the designated examining physicians for purposes of the examination were employees of the State.

I now turn to the issue of negligence. The Court of Claims has found as a fact that, in permitting Flores to fight, the doctors were negligent. All of the medical witnesses agreed that possibility of injury to the brain, such as a concussion, had always to be considered and good medical practice requires that persons who had received a severe beating in and about the head should be kept quiet for a period of from six to eight weeks, and that this was dictated even in the absence of objective neurological signs of head injury.

On August 29,1951 Dr. Nardiello examined Flores along with nine other contestants on that evening’s fight card. The examination of Flores took 10 to 15 minutes, consisting in part of the answers made by Flores to a written questionaire which he signed and a complete physical examination by the physician. Dr. Nardiello testified in substance that when he interviewed Flores and was told by him that he had lost his last two fights by TKO, he said to him: “ ‘ What are you fighting for? ’ Then I went inside to get the records.” He considered the records important “because of the TKO, I figured he should have a rest ”. It was his experience that “ if a man gets a bad beating around the head or is knocked out, to take a rest for two months and have EEG- taken; that’s the electroencephalogram.”

The records of the previous fights were available. At the Flores-Cerky fight on July 24, 1951 at Fort Hamilton Arena, Flores had been examined by Dr. Swetnick, panel doctor; during the second round Cerky had hit Flores a series of hard blows to the face knocking out his mouthpiece and reducing Flores to a “ helpless ” or “ lifeless ” state, causing the referee to stop the fight by a TKO ruling. Three weeks later, on August 14, Flores fought Roger Donoghue at White Plains. At that time he was examined by Dr. Bockner, a panelist, who made the usual routine physical checkup and reported that his physical condition was good and that it was permissible for him to fight that night. It was a hard fight. Donoghue was a tough fighter described as a “ turned-around southpaw ” with a powerful left hook. Flores was somewhat shorter by about four inches. In the eighth round Donoghue landed a blow to the head that caused Flores to stagger. Donoghue knew he “ had him ” and followed with a series of fast blows. Flores was on the ropes. He collapsed and the referee stopped the fight, declaring Donoghue the winner by a TKO. Flores revived and left the ring. He was described as “ groggy ”. Dr. Bockner was present from the'beginning of the fight and after the TKO he went to Flores’ corner, asked him how he felt and examined his eyes. About 20 minutes later, he again examined him in the dressing room and found his pressure, heart, hands and reflexes normal and that, in his opinion, he had suffered no concussion and he so reported to the commission.

On the following day Flores’ manager asked the Deputy State Athletic Commissioner, Duberstein, for a rematch with Donoghue. Duberstein then talked with Dr. Bockner on the telephone, following which he advised Duberstein that Flores could not fight until he had had an BEG taken. An EEG was taken on August 16, a report of which is in the file and contains the comment: “ This is a generally good record. However, there is some slowing anteriorly. Impression normal record ”. Upon receipt of this report, Duberstein lifted the suspension and advised his manager that they could go ahead with the rematch which was then set for August 29th. The Flores-Donoghue rematch started at about 9:30 p.m. The fighters were about evenly matched, although it looked as though Donoghue would win on points. In the fatal eighth round, Donoghue landed a right-hand punch to the mouth, followed by a left hook to the chin, which Donoghue described: “ I nailed him perfectly ”. In falling, Flores hit the floor buttocks first before the shoulders; then the shoulders; then his head ”. Flores took the count but revived and walked to the dressing room. There, he went into a deep coma from which he never regained consciousness. He was rushed to a hospital for an emergency operation. It was unsuccessful. Flores died three days later (September 3). In describing the operation, Dr. Daniels, a well-known neurosurgeon, said he found no massive hemorrhage, which ruled out the possibility that a single blow had caused the final injury. There was, however, a small hemorrhage underneath the dura mater, which is described as the outermost membrane covering the brain within the skull. There was some evidence of injury to the outer surface of the brain, the cortex. Most significant, however, was the presence of brain swelling, which could not be accounted for so soon after the fight occurring only two hours before. The presence of this swelling could only be accounted for by an injury sometime prior thereto, such condition necessarily leading to the conclusion that Flores had this condition when he went into the fight with Donoghue which, in the light of good practice, the EEG and, from his own experience, Dr. Nardiello should within reasonable limits have anticipated. This is so, even though Flores did not show any objective symptoms at the time he was examined on August 29. All of the medical men agree that injury and damage could exist without such symptoms. Dr. Nardiello knew from the record that Flores had suffered two TKOs in succession in less than a month’s time; that in each instance he had taken a severe beating to the head; both Dr. Swetnick and Dr. Bockner knew that it was good practice to lay off a fighter for a rest of from six to eight weeks. Dr. Nardiello knew it too. He had the records, the experience and the power to suspend, but, for some reason best known to himself, he did not go behind the prior examinations, but chose to limit his report to what he himself observed on August 29.

Under the circumstances, as Judge Young pointed out, “ Dr. Nardiello had a positive duty to report and act upon whatever his knowledge and experience told him were Flores’ disabilities, regardless of the time of their origin. We cannot conceive what would make Dr. Nardiello think that his examination was only limited to disabilities incurred since the last physical examination. We believe that Dr. Nardiello’s knowledge and experience told him that Flores had no right to be fighting on August 29th. No possible concept of his duty can excuse his failure to inform the State, if not Flores, of his judgment.” While nothing particularly turns on it, Flores’ fight record which is among the papers does throw light on the highly commercialized aspects of the fight game. It begins with a fight on March 2, 1950. Between then and December 23, 1950, he engaged in 15 other fights, an average of two fights a month. From January 13, 1951 to the fatal fight on August 29, he again fought eight times. He was 20 years of age, rugged and, no doubt, ambitious but even so he was being driven at a pretty fast pace, even for a fighter.

As trier of the fact, the Court of Claims was justified in finding that good medical practice demands a layoff for boxers who have suffered a knockout or a severe beating about the head from six weeks to two months; that, in face of such fact, it was negligent for Dr. Nardiello to certify Flores as fit to fight on August 29, 1951. This was not an error in judgment, as the Appellate Division has indicated, but was a failure to give proper heed and consideration to obvious medical facts and practices. The examination is primarily to make sure that the fighter is in good physical condition before entering the ring. Dr. Nardiello was fully cognizant of this responsibility, since he knew it was good practice to lay off six to eight weeks after a technical knockout and he freely admitted that he had the authority to prevent Flores from appearing in the ring. His negligence was the negligence of the State. The State has complete and exclusive control of boxing matches. This fight could not have taken place without its approval. The State, having conferred upon its Athletic Commission broad and exclusive powers to regulate and conduct prize fights, it follows that any negligence in the performance of the duty thus imposed becomes the responsibility of the State.

I vote to. reverse the judgment appealed from and to reinstate that of the Court of Claims, with costs.

Judges Desmond, Fboessel and Van Voobhis concur with Judge Fuld ; Judge Dye dissents in an opinion in which Chief Judge Conway and Judge Bubke concur.

Judgment affirmed.

      . The several sections were renumbered in 1952 and subjected to slight amendments in language (L. 1952, ch. 666).


author: Fuld, J.

text:
    In the Matter of Plumbing, Heating, Piping and Air Conditioning Contractors Association, Inc., Appellant, et al., Intervenor-Petitioner, against New York State Thruway Authority, et al., Respondents, and Rocklyn Construction Corp., Intervenor-Respondent.
    Argued January 22, 1959; ;
    decided April 9, 1959.

      Joseph J. Casey and Charles H. Tuttle for appellant.
    I. Under the State Constitution “the New York State Thruway Authority” is so far an immediate operating instrumentality of the State itself that, for the bonds therein authorized, the Legislature may make ‘ ‘ the State liable ’ ’ and the consequent debts are “ those created on behalf of the State ” and constitute “ the liability of the State.” Hence, its design and specifications for the police barracks, by the Superintendent of Public Works as its agent, on land acquired and held in the name of the State for the Thruway, is by a “ board ’ ’ and by an ‘1 officer ’ ’ within the meaning of section 135 of the State Finance Law. (Easley v. New York State Thruway Auth., 1 N Y 2d 374; Pantess v. Saratoga Springs Auth., 255 App. Div. 426; Meriwether v. Garrett, 102 U. S. 472; Maltby v. County of Westchester, 267 N. Y. 375; Paige v. State of New York, 269 N. Y. 352.) II. Other sections of the Public Authorities Law and of the statutes made applicable thereby also manifest the intent of the constitutional and statutory program (contemporaneously adopted by the Legislature in 1950 and since maintained) that the Thruway Authority is “ a board ” constituting a State enterprise, State operation and State use of land owned by the State, and hence is subject to section 135 of the State Finance Law in the erection on such land of servicing buildings for the State. For the effectuation of this State enterprise, the Thruway Act and the Finance Law constitute an integrated program. III. Important public issues are involved which require determination. (Matter of Lyon Co. v. Morris, 261 N. Y. 497; Delavan v. New York, N. H. & H. R. R. Co., 216 N. Y. 359; Bush v. O’Brien, 164 N. Y. 205; Matter of Fairchild, 151 N. Y. 359; Moses v. Salomon, 150 App. Div. 563.)

      Louis J. Lefkowitz, Attorney-General (George H. Rothlauf and Paxton Blair of counsel), for New York State Thruway Authority and others, respondents.
    Section 135 of the State Finance Law has no application to the New York State Thruway Authority because it is a public corporation and constitutes a separate entity from the State. (Pierce v. United States, 314 U. S. 306; United States v. Strang, 254 U. S. 491; Pantess v. Saratoga Springs Auth., 255 App. Div. 426; New Jersey Turnpike Auth. v. Parsons, 3 N. J. 235; Behnke v. New Jersey Highway Auth., 13 N. J. 14; Strang v. State of New York, 206 Misc. 734; Easley v. New York State Thruway Auth., 1 N Y 2d 374; Malone v. State of New York, 285 App. Div. 1218, 1 N Y 2d 837; Fagen Elec. Co. v. Housing Auth. of City of Blythville, 216 Ark. 932.)

      Edwin B. Wolchok for Rocklyn Construction Corp., intervenor-respondent.
    The order below should be affirmed.
   Fuld, J.

The respondent New York State Thruway Authority advertised for bids, receivable in January of 1957, for the construction of six buildings at various locations along the Thruway for use as police barracks. The specifications for the work provided for the construction, plumbing, heating and ventilating, electrical and site development work to be performed under a single contract for each of the six projects. A contractors association brought this proceeding to compel the Thruway Authority and the respondent Superintendent of Public Works (1) to withdraw the notice to bidders which had been published and (2) to publish a new one containing separate specifications so as to permit separate bidding on each of the three subdivisions of work specified in section 135 of the State Finance Law. Insofar as pertinent, it provides:

‘ ‘ Every officer, board, department, commission or commissions charged with the duty of preparing specifications or awarding or entering into contracts for the erection [or] construction * * * of buildings, for the state, when the entire cost of snch work shall exceed twenty-five thousand dollars, must have prepared separate specifications for each of the following three subdivisions of the work to be performed:
1. Plumbing and gas fitting.
2. Steam heating, hot water heating, ventilating and air conditioning apparatus.
3. Electric wiring and standard illuminating fixtures. Such specifications must be so drawn as to permit separate and independent bidding upon each of the above three subdivisions of work. All contracts hereafter awarded by the state or a department, board, commissioner or officer thereof, for the erection, construction or alteration of buildings, or any part thereof, shall award the three subdivisions of the above specified work separately to responsible and reliable persons, firms or corporations engaged in these classes of work.”

Asserting that the statute does not apply to the Thruway Authority, the respondents moved to dismiss the proceeding. The court at Special Term granted the motion, the Appellate Division unanimously affirmed the resulting order and we granted leave to appeal to afford us an opportunity to decide whether the Authority is to be deemed a “ board ” or “ department ’ ’ of the State within the meaning of section 135.

The Thruway Authority was created by a special act of the Legislature (L. 1950, ch. 143) as a public corporation ” to construct and maintain a thruway system (Public Authorities Law, §§ 352, 353). Although created by the State and subject to dissolution by the State, these public corporations are independent and autonomous, deliberately designed to be able to function with a freedom and flexibility not permitted to an ordinary State board, department or commission. (See State and Local Q-overnment in New York, New York State Constitutional Convention Committee Report [1938], Yol. 4, p. 189 et seq.; N. Y. Co-ordination Comm. Staff Report on Public Authorities under New York State, N. Y. Legis. Doc., 1956, No. 46, p. 54 et seq., p. 554 et seq.) The corporate entity is interposed, it has been said (1951 Atty.-G-en. 130, 132), both to protect the State from liability and enable public projects to be carried on free from restrictions otherwise applicable.”

Indeed, the statute creating the Thruway Authority is replete with provisions which emphasize its separate and independent existence and serve to distinguish it sharply from the type of State board or department which would be subject to the requirements of the State Finance Law with respect to bidding. We note, simply for purposes of illustration — for it by no means exhausts the list—that the Authority is expressly empowered to 11 make contracts, ” ‘ ‘ acquire * * * real property ”, “borrow money and issue [its own] negotiable * * * obligations ” without public referendum and, significantly, ‘1 accept any gifts or * * * grant of funds or property * * * from the state of New York” (§ 354) and become “ indebted to the state ” (§ 357). The notes and bonds issued by the Authority are its primary obligation, the State’s obligation being merely that of a guarantor (§ 366), and only to the maximum amount of $500,000,000 (N. Y. Const., art X, § 6). If, as asserted, there was an identity between Authority and State it is difficult to perceive how the Authority could receive gifts from, or become indebted to, the State and, quite obviously, the latter’s guaranty of the Authority’s obligations would be superfluous and unnecessary. Finally, we would add that traffic control upon the Thruway is exercised by the Authority and not by the State through its Traffic Commission (Public Authorities Law, § 361).

As would, of course, be expected, the cases confirm the conclusion that a public authority enjoys an existence separate and apart from the State, even though it exercises a governmental function (see, e.g., Malone v. State of New York, 1 N Y 2d 837; Pantess v. Saratoga Springs Auth., 255 App. Div. 426), and nothing decided or said in Easley v. New York State Thruway Auth. (1 N Y 2d 374) detracts from the force of what we have written. The court did, in the course of its opinion in Easley, note that “ this Authority is an arm or agency of the State ” (1 N Y 2d, at p. 376), but, as the Appellate Division observed herein, 1 ‘ that is far different from saying it is the State.” Certainly, there is a close relationship between the Thruway Authority and the State, and we simply remarked that fact in upholding the Legislature’s power to confer upon the Court of Claims jurisdiction to determine all claims against the Authority (Public Authorities Law, § 361-b). However close such relationship may be, though, it is abundantly clear that the Authority stands on its own feet, transacts its business affairs through its own personnel and on its own initiative and is not subject to the strict requirements imposed upon a board or department of the State by a provision such as section 135 of the State Finance Law. (Cf. Public Housing Law, § 151-a; General Municipal Law, § 101.)

The order of the Appellate Division should be affirmed, without costs.

Chief Judge Conway and Judges Desmond, Dye, Fboessel, Van Voobhis and Bubke concur.

Order affirmed.

      . Although the projects to which the bids related have been completed, the importance of the question presented—the applicability of section 135 to public authorities such as the Thruway Authority — and the likelihood of its recurrence again and again dissuade us from dismissing the appeal as moot. (See Matter of Rosenbluth v. Finkelstein, 300 N. Y. 402, 404; Matter of United Press Assns. v. Valente, 308 N. Y. 71, 76; see, also, Cohen and Karger, Powers of the New York Court of Appeals, p. 421.)


author: Chief Judge Conway.

text:
    Alice M. Kelly, Appellant, v. Paul Wasserman, Respondent.
    Argued November 11, 1958;
    decided April 9, 1959.

      Stephen A. Wise and Chester T. Lane for appellant.
    The trial court erred in excluding the official records of the Department of Welfare offered by plaintiff-appellant. The error was highly prejudicial to plaintiff-appellant’s case and requires a new trial. (Johnson v. Lutz, 253 N. Y. 124; Cox v. State of New York, 3 N Y 2d 693; Petrozak v. State of New York, 189 Misc. 809; Trbovich v. Burke, 234 App. Div. 384; Fischer v. City of New York, 207 Misc. 528; Lyon v. Ricker, 141 N. Y. 225; Reed v. McCord, 160 N. Y. 330; Van Valkenburgh v. Lutz, 304 N. Y. 95; Schaefer v. Fidelity & Cas. Co., 203 Misc. 633; Zraick v. Reyes, 204 Misc. 174.)

      Lewis G. Gaines for respondent.
    I. Appellant was guilty of laches in not bringing the action sooner. II. The court did not err in excluding the records of the Department of Welfare. III. The court did not err in granting a final order. IV. Equity cannot grant reformation of the deed.
   Chief Judge Conway.

Plaintiff-appellant Alice M. Kelly, a 65-year-old woman, was, prior to June 4, 1950, in financial difficulties. She could not maintain the house she owned at 813 Greenwood Avenne in Brooklyn. She approached the defendant-respondent, a friend, and asked his assistance. There followed an agreement by which plaintiff was to convey her house to defendant in return for which he was to pay all of her debts and to allow her to continue to reside in her two rooms on the parlor floor of the premises, rent free. Plaintiff claims that she was to be given rent-free occupancy for her lifetime; defendant’s version of the agreement is that she was to be permitted to live there only “ as long1 as the Department of Housing and Building would not bother him because of her living there.” That is the gist of the controversy. Plaintiff deeded the premises to defendant, who thereafter paid her debts. The agreement, whatever it was, was not put in writing.

Beginning on August 27, 1957, defendant had difficulties with the Department of Housing and Buildings. Three families, if plaintiff be considered one, occupied the house, making it a multiple dwelling unlawfully. Three families had occupied it at all times at and after its deeding to defendant, but it was claimed that it had become necessary for one of them to be evicted. Defendant chose plaintiff, the nonpaying occupant, and brought a summary proceeding to evict her, while plaintiff on her part brought an action to have the deed reformed to add Subject to the life tenancy of Alice M. Kelly in two rooms on the second floor of said premises.” After consolidation of the eviction proceeding and the reformation action, the latter was dismissed after trial and the plaintiff was ordered evicted. The Appellate Division has affirmed.

Plaintiff was and is a welfare beneficiary and, as such, the Department of Welfare maintains a file in her case. On several occasions department personnel have had contact with the defendant. Two of them are pertinent here. According to department records (held inadmissible below), its representative had a telephone conversation with the defendant on July 21, 1950, and made a personal visit to him on October 23, 1952. Memoranda of conversations had with him on each occasion were made by the person supervising plaintiff’s welfare file and incorporated therein. In both of them defendant stated that he had agreed to allow plaintiff to occupy the premises rent free for life; in neither did he qualify his statement with the proviso that her occupancy could last only as long as the noninterference of the Housing Department. The two excluded entries read as follows:

“ 7/21/50-
‘ ‘ Phoned So. 8-8647 and spoke with Mr. Wasserman who advised as above-stated he had been advancing Miss K. a dollar or two daily for food needs but cannot continue this as he has his own family to support and his income will not warrant this added expenditure. If and when he acquires property, he will permit Miss K. to remain there rent free the remainder of her life — she will occupy the 2-room apartment that has no cooking facilities. She will eat all her meals in the restaurant (no cooking).”
“ 10/23/52-
‘ ‘ Collateral to Mr. Wasserman.
We visited Mr. Paul Wasserman at his pharmacy at 1291 Prospect Avenue. Telephone [No.] SO 8-8904. He stated that he would permit Miss Kelly to live in her Apt. rent free for her lifetime. This includes electricity. He stated there was no cooking facilities since this would be a violation. He said that Applicant ate all of her meals out and that he loaned her the money to eat when she did not have any. He thought she woed [sic] him about $12 or $15 dollars.”

Without the excluded entries, the record shows the plaintiff making contradictory statements while the defendant adheres to a consistent position. Were the entries admitted, the record would manifest inconsistencies on the part of both litigants. In view of the circumstances attending the transaction, a contrary result may well have ensued from such foundation. Thus if there was error in excluding the entries, it must be deemed prejudicial.

We are of opinion that their exclusion was error. It is not clear whether the ruling was grounded upon the supposition that the statements were hearsay, or upon the fact that they were sought in evidence as contradictory statements made by defendant out of court for the purpose of impeaching him. If the latter, the evidence was admissible to impeach defendant even though he was the plaintiff’s witness. “ When * * * it is said that one cannot impeach his own witness by contradictory statements made out of court, this statement must be limited to the case of a witness who is not the adverse party.” (Koester v. Rochester Candy Works, 194 N. Y. 92, 97-98.)

However, it is more likely that the exclusion of the records was founded upon their being hearsay. When defendant stated, with reference to the questioned entries, that he was “ going to object to anything that may be hearsay ”, the Referee said that he would not “pay any attention to anything that is hearsay. ’ ’

But even if it be assumed that the matter offered was hearsay, still: “ The purpose of section 374-a of the Civil Practice Act was to overcome the objection of the hearsay rule ” (Matter of Coddington, 307 N. Y. 181, 195 [emphasis supplied]).

One Frances Reynolds testified that she was a “ social investigator ” for the Welfare Department, and as such was “ in charge of the welfare case of Miss Alice Kelly ”; that the department kept records of telephone calls and visits made to plaintiff and those connected with her. It may be noted that the department is required by law to maintain such records (Social Welfare Law, §§ 80, 132; Regulations of N. Y. State Dept, of Social Welfare, § 1.36, subd. a, par. [2]; § 1.39). It was also established that the disputed entries had been made by the department employee who first interviewed plaintiff. Section 374-a of the Civil Practice Act makes admissible in evidence “ a memorandum or record of any act, transaction, occurrence or event * * * if * * * made in the regular course of any business ’’ as long as “it was the regular course of such business to make such memorandum or record at the time * * * or within a reasonable time thereafter. ’ ’ There can be no doubt but that the alleged statements of defendant, which are most germane to the question of plaintiff’s shelter, were the Department of Welfare’s business, and the practice (enjoined by law in this case) of maintaining records on those receiving welfare support qualified those records for admissibility under section 374-a.

It is true that the person who made the memoranda, since not testifying, could not be cross-examined. Nevertheless, in Johnson v. Lutz (253 N. Y. 124, 128), we said that, where the entrant has the duty of drawing the memorandum, section 374-a permits it “to be received in evidence without the necessity of calling as witnesses all of the persons who had any part in making it ”. It was also indicated that the proffered matter might he objectionable on the additional ground that there was no evidence that she [the welfare worker] recognized the voice of the one with whom she spoke.” But that is not basis for the exclusion of records; rather may it be taken into consideration only after their admission as affecting the weight to be given them. The statute is explicit thereon, providing, after the prerequisites above set forth have been met, that “All other circumstances of the making of such writing or record, including lack of personal knowledge by the entrant or maker, may be shown to affect its weight, but they shall not affect its admissibility.” Moreover, whatever effect voice recognition might be given with regard to the telephone call of July 21, 1950, it has no bearing on the other excluded memorandum, which is a record of the in-person visit by the investigator to defendant on October 23, 1952.

The judgment of the Appellate Division should be reversed, and a new trial granted, with costs to abide the event.

Judges Desmond, Dye, Fuld, Feoessel, Van Voorhis and Burke concur.

Judgment reversed, etc.