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

text:
    Richard Austin et al., Respondents, v. Board of Higher Education of the City of New York, Appellant.
    Argued January 12, 1959;
    decided April 9, 1969.

      Charles H. Tenney, Corporation Counsel (Robert E. Hugh, Leo A. Larkin and Thomas A. Brennan of counsel), for appellant.
    I. Former public employees who have been removed in good faith from their positions must first obtain reinstatement to their former positions before a cause of action will lie for salary which has accrued since such removal. (Matter of Barmonde v. Kaplan, 266 N. Y. 214; Thoma v. City of New York, 263 N. Y. 402; Thomson v. Board of Educ., 201 N. Y. 457; Hagan v. City of Brooklyn, 126 N. Y. 643; Matter of Bush v. Beckmann, 283 App. Div. 1070; Levitch v. Board of Educ., 212 App. Div. 598; Sutliffe v. City of New York, 132 App. Div. 831; Walters v. City of New York, 119 App. Div. 464; Toscano v. McGoldrick, 300 N. Y. 156; Dixon v. La Guardia, 277 N. Y. 84.) II. The dismissals of plaintiffs and the determination of their reinstatements involved the exercise of administrative discretion. Hence, even under the ratio decidendi of the court below, they must first obtain reinstatement to their positions in an article 78 proceeding in which the issue of back salary can also be determined. (Matter of Daniman v. Board of Educ., 306 N. Y. 532; Slochower v. Board of Educ., 350 U. S. 551.) III. In previously stipulating to be bound by a determination in an article 78 proceeding, plaintiffs recognized that such remedy is prerequisite to a claim for back pay. Having been denied reinstatement in the timely article 78 proceeding, plaintiffs cannot now circumvent the four-month Statute of Limitations by resorting in 1957 to an action at law for salary alleged to have accrued since their dismissals in 1953. (Riesner v. Young, 198 Misc. 624; Kobbe v. McNamara,
      5 Misc 2d 741; Przyborowski v. O’Connell, 272 App. Div. 1096, 297 N. Y. 941; Colson v. Wilson, 205 Misc. 32; Colodney v. New York Coffee & Sugar Exch., 4 A D 2d 137; Terner v. Glickstein & Terner, 283 N. Y. 299 ; Keys v. Leopold, 241 N. Y. 189; Hanover Fire Ins. Co. v. Morse Dry Dock & Repair Co., 270 N. Y. 86.) IY. The amended complaint is insufficient as it fails to allege that since the dismissals of plaintiffs no other persons were appointed in their positions and paid the salaries of such positions. (Matter of Mullane v. McKenzie, 269 N. Y. 369; Matter of Barmonde v. Kaplan, 266 N. Y. 214; Martin v. City of New York, 176 N. Y. 371; Kunz v. City of New York, 286 App. Div. 252; Reiser v. State of New York, 198 Misc. 647.)

      Osmond K. Fraenkel for respondents.
    I. Appellant exercised no discretion in dismissing plaintiffs. (Matter of Andresen v. Rice, 277 N. Y. 271; Matter of Cash v. Bates, 301 N. Y. 258; Matter of Chironna v. Watson, 304 N. Y. 255; Matter of Otis v. Silverman, 3 A D 2d 752; Matter of Zorach v. Clauson, 303 N. Y. 161; Matter of New York Post Corp. v. Leibowitz, 2 N Y 2d 677.) II. An article 78 proceeding is not the exclusive remedy. (Matter of Cross v. Board of Higher Educ., 260 App. Div. 907; Matter of Cox v. Board of Educ., 178 Misc. 95, 263 App. Div. 740; Matter of Adams v. Board of Higher Educ., 263 App. Div. 804; Nelson v. Board of Higher Educ., 263 App. Div. 144, 288 N. Y. 649; Kory v. Board of Higher Educ., 292 N. Y. 547; Bressler v. Board of Higher Educ., 273 App. Div. 148, 298 N. Y. 112; Burnside v. Whitney, 21 N. Y. 148; Sandford Laundry v. Simon, 285 N. Y. 488; Jones v. Johnson & Sons, 283 App. Div. 1085; Matter of Shlakman v. Board of Higher Educ., 5 Misc 2d 901.) III. An action at law may be maintained under the circumstances here alleged. (Steinson v. Board of Educ., 165 N. Y. 431; Toscano v. McGoldrick, 300 N. Y. 156; Dixon v. La Guardia, 277 N. Y. 84; Matter of Rushford v. La Guardia, 280 N. Y. 217; Matter of Broderick v. City of New York, 295 N. Y. 363; Nelson v. Board of Higher Educ., 263 App. Div. 144, 288 N. Y. 649; Bressler v. Board of Higher Educ., 298 N. Y. 112; Cottrell v. Board of Educ., 181 Misc. 645, 267 App. Div. 817; Wakefield v. Board of Educ., 192 Misc. 639; Thoma v. City of New York, 263 N. Y. 402; Matter of Barmonde v. Kaplan, 266 N. Y. 214.) IY. The abortive stipulation does not affect respondents’ rights. Y. Respondents were not bound to allege that no other persons were apnointed to their positions.
   Chief Judge Conway.

On this appeal we are called upon to answer the following question certified to us by the Appellate Division, First Department: ‘1 Was the order of the Appellate Division entered May 27, 1958, proper in denying' defendant’s motion to dismiss the amended complaint herein pursuant to Rule 106 of the Rules of Civil Practice, on the ground that it appears on the face thereof that the amended complaint does not state facts sufficient to constitute a cause of action? ”

The action is one at law in which plaintiffs, six discharged members of the instructional staff of defendant, the Board of Higher Education of the City of New York, who have not been reinstated to their positions, seek to recover damages allegedly resulting from their dismissal. The board attacks the amended complaint upon the ground that plaintiffs have chosen the wrong remedy; that as discharged employees of the defendant they have no redress for unpaid salary in an action at law and that their exclusive remedy is an article 78 proceeding. The plaintiffs, on the other hand, contend that their summary dismissal, predicated on an unconstitutional statute and ordered without a hearing, did not involve an exercise of discretion so as to limit their remedy to an article 78 proceeding.

A proper understanding of this case can be attained only by tracing its history and background.

In 1952 'and 1953, while the defendant Board of Higher Education of the City of New York and the Board of Education of the City of New York conducted investigations to eliminate subversives from their respective staffs (see Education Law, § 3022), certain teachers employed by the Board of Education and various members of the teaching staff of the Board of Higher Education, including the plaintiffs in the present action, were dismissed from their positions under the authority of section 903 of the New York City Charter after they had claimed their Fifth Amendment privilege against self incrimination in their appearances before the Internal Security Subcommittee of the Committee on the Judiciary of the United States Senate. Eight of those persons removed by the Board of Education commenced an article 78 proceeding in the Supreme Court, Kings County, seeking their reinstatement. That proceeding was entitled “ Matter of Daniman v. Board of Educ. of City of N. Y.” Six former members of the instructional staff of the Board of Higher Education instituted a similar proceeding in the same court entitled “ Matter of Shlakman v. Board of Higher Educ. of City of N. Y.” The plaintiffs here were not among the petitioners in either the Daniman or Shlahman proceedings.

Special Term dismissed the Daniman and Shlahman petitions. {Matter of Daniman v. Board of Educ. of City of N. Y., 202 Misc. 915.) During the pendency of appeals by the petitioners therein, and on May 20, 1953, the plaintiffs in the action now before us entered into a stipulation with the defendant Board of Higher Education. The stipulation bore the title of the Shlahman proceeding and provided, inter alia, that plaintiffs shall for all purposes be considered as parties to this [Shlahman] proceeding to the end that the final order or judgment made herein shall apply to and benefit or bind them, as the case may be, with the same force and effect as though they were formal parties petitioner herein.” The attorney representing plaintiffs at the time they signed the stipulation originally represented all of the petitioners in the Shlahman proceeding.

After Special Term had dismissed the Daniman and Shlahman petitions, Harry Slochower, one of the petitioners in the Shlahman proceeding, retained other counsel to represent him upon appeal (the relevancy of this fact will appear later). Thereafter, the Appellate Division, Second Department, affirmed the determination made at Special Term (Matter of Daniman v. Board of Educ. of City of N. Y., 282 App. Div. 717; Matter of Shlakman v. Board of Higher Educ. of City of N. Y., 282 App. Div. 718). A further appeal was taken to this court. We, in turn, affirmed (306 N. Y. 532).

Following the affirmance by this court, all of the Daniman and Shlahman petitioners moved in our court for an order either (1) granting a reargument of the appeal so that certain questions of a Federal nature allegedly embraced within the original petitions might be presented to us, or (2) recalling the remittitur and amending it to recite that a question under the Federal Constitution was presented to and necessarily passed upon by this court. We denied reargument and denied the amendment to the remittitur except with respect to the petitioner Slochower. As to him, we amended the remittitur to recite that he had raised three questions of due process under the Fourteenth Amendment to the United States Constitution and that we had passed upon them (307 N. Y. 806).

Separate notices of appeal were filed in the United States Supreme Court by Slochower, appearing by one counsel, and by all the other petitioners, appearing by a different counsel. The Supreme Court dismissed the appeals of all of the petitioners except Slochower for want of a properly presented Federal question (348 U. S. 933), and in the appeal of Slochower the Supreme Court noted probable jurisdiction (348 U. S. 935). On appeal, the Supreme Court reversed our determination, holding that Slochower’s removal had been in violation of his constitutional rights, and remanded the case to this court (350 U. S. 551), petition by the board for rehearing denied (351 U. S. 944). This court then amended the remittitur to carry out the decision of the Supreme Court (2 N Y 2d 719), and by order of Special Term Slochower alone was reinstated with back salary.

Pending Slochower’s appeal to the Supreme Court, all of the Daniman petitioners and all of the remaining Shlafcman petitioners made a motion in this court to amend the remittitur to show that the second of the three Federal questions listed in our memorandum (307 N. Y. 806) as having been raised by Slochower alone was. also raised by them, and to certify that other Federal questions were raised by them, or, in the alternative, to recall and retain the remittitur pending the decision of the Supreme Court in the Slochower appeal. This motion was denied (308 N. Y. 909). After the Slochower decision in the Supreme Court, the same petitioners again made a motion in this court for reargument, or, in the alternative, to amend the remittitur. That motion was also denied (1 N Y 2d 855).

Subsequently, the same petitioners moved in the Supreme Court for a rehearing which was denied. A cross motion to dismiss the appeal for want of jurisdiction was granted and a petition for a writ of certiorari to our court was denied (352 U. S. 950). Thus, all of the Daniman and Shlafcman petitioners, other than Slochower, failed in their endeavor to obtain reinstatement in their article 78 proceedings.

After Special Term had entered the final order directing Slochower’s reinstatement, plaintiffs here asserted that, under the previously mentioned stipulation, they were likewise entitled to reinstatement. Accordingly, they made a motion at Special Term, Kings County, (1) for an order to include within the terms of the order reinstating Slochower a provision ‘ ‘ to the end that the determination of the Board of Higher Education terminating the employment of each of them be annulled ”, or, if the stipulation be not construed as entitling them to such relief, (2) a determination that the stipulation constituted a waiver of the four-month limitation provided for by section 1286 of the Civil Practice Act for the commencement of an article 78 proceeding. The Board of Higher Education made a cross motion for an order to the effect that plaintiffs were bound by the adverse decision in relation to the Shlakman petitioners other than Slochower because plaintiffs and the Shlakman petitioners, other than Slochower, had all been represented by the same attorney. Special Term denied both the motion of plaintiffs and the cross motion of defendant Board of Higher Education (5 Misc 2d 901). That court ruled that an identical, uniform result affecting all of the Shlakman petitioners, rather than one result affecting one petitioner (Slochower) and another result affecting the other petitioners, was made a condition precedent to the entry of a final order to benefit or bind the stipulants and that the condition having failed, no rights under the stipulation accrued in favor of either of the parties thereto. With respect to the question of the alleged waiver of the Statute of Limitations contained in section 1286 of the Civil Practice Act, Special Term wrote (5 Misc 2d 901, 905): “ Stipulants fail to cite nor has the court found any authority vesting in the court jurisdiction to grant such relief. Nor is there anything in the stipulation to justify a finding that the limitation provided for by section 1286 of the Civil Practice Act was intended to be waived.”

No appeal was taken by any party from the said order of Special Term. Instead, plaintiffs served on the Board of Higher Education a notice of claim which reads:

‘ ‘ To THE BOARD OP HIGHER EDUCATION:

Each of the undersigned hereby presents for adjustment his claim for the payment of salary to which he would have been entitled had the Board not in March or April 1953 declared vacant his position by reason of the assertion by each of said claimants of his privilege against self-incrimination when questioned by the Committee on Internal Security of the United States Senate. The amount claimed by each of the claimants to the date hereof is approximately:

RICHARD AUSTIN .............................$25,000
JOSEPH BRESSLER ............................ 36,000
HYMAN E. GOLD.............................. 25,000
ELTON GUSTAFSON............................ 31,000
OSCAR SHAFTEL .............................. 31,000
MURRAY YOUNG.............................. 29,000

Each of said claimants reserves the right to increase such amount as further back salaries accrue from time to time. * # #

The board having refused to acknowledge plaintiffs ’ right to back salary, plaintiffs instituted the present action at law. The gravamen of the amended complaint is that the dismissal of the plaintiffs was predicated on section 903 of the New York City Charter; that their dismissal pursuant to that section constituted a denial of due process as applied to the invocation of the privilege before a Federal subcommittee, and that they were dismissed without a hearing in violation of the statutory rights attendant upon their tenure of service.

It is alleged that each of the plaintiffs had been in the employ of the defendant and had acquired tenure under the laws of the State of New York; that on or about March 16, 1953 defendant dismissed each of the plaintiffs from its employ, without a hearing, pursuant to section 903 of the New York City Charter; that the only reason for such dismissals was the fact that each of the plaintiffs had, when questioned by a subcommittee of the United States Senate dealing with internal security, claimed his privilege against self incrimination under the Fifth Amendment to the United States Constitution when asked questions about Communist party membership; that such dismissals 'were in violation of plaintiffs’ Federal constitutional rights; that on May 20, 1953 plaintiffs stipulated with defendant to be bound by a final order to be entered in Shlakman v. Board of Higher Educ., an article 78 proceeding then pending in the Supreme Court, Kings County, by means of which the petitioners, including one Harry Slochower, all of whom had been dismissed for claiming the privilege before the same Senate subcommittee, sought reinstatement to their positions in the New York City school system; that, thereafter, the Court of Appeals upheld the dismissal of all the Shlakman petitioners; that snch petitioners then appealed to the United States Supreme Court where the appeals of all of the petitioners except Slochower were dismissed on the ground that they had raised no Federal question before the Court of Appeals; that the appeal of Slochower was heard on its merits and resulted in a determination that section 903 of the City Charter was an unconstitutional denial of due process as applied to the invocation of the privilege before said subcommittee; and that on October 8, 1956 the Court of Appeals adopted the order of the Supreme Court and directed the reinstatement of Slochower with back pay, following which Slochower made an application to the Supreme Court, Kings County, for an order implementing the decisions of the Supreme Court and the Court of Appeals.

The amended complaint goes on to allege that plaintiffs thereupon made an application to the Supreme Court, Kings County, for an order extending to them, pursuant to the stipulation of May 20, 1953, the final order to be entered in favor of Slochower; that in opposition to said application defendant cross-moved that plaintiffs should be held bound by the adverse decision in relation to the Shlakman petitioners other than Slochower because they were all represented by the same attorney; that on April 22, 1957 both the motion of plaintiffs and the cross motion of defendant were denied on the ground that the stipulation had no effect because it rested on the condition that there would be a single determination in the Shlakman proceeding affecting all the petitioners and this had not occurred; and that no appeal was taken by any party from said order of April 22, 1957.

Finally, the amended complaint alleges that each plaintiff has, as defendant well knows, ever since his dismissal, been desirous of continuing to perform the duties of the position and has been ready, able and willing to do so; that defendant has failed and refused to pay to each of the plaintiffs any part of his salary since March 16, 1953 and that more than 30 days prior to the commencement of this action each of the plaintiffs duly presented a claim for adjustment to the defendant. Plaintiff Austin seeks $25,000; Bressler, $36,000; Gold, $25,000; Gustafson, $31,000; Shaftel, $31,000, and Young, $29,000.

It is clear that the right to a position determines the right to the salary incident thereto (Stetson v. Board of Educ., 218 N. Y. 301, 306). The question to be determined here is whether a discharged public employee may prove his right to the position from which he was dismissed in an action at law for accrued salary, or whether he must prove such right in an article 78 proceeding. To quote from the opening pages of plaintiffs’ brief:

“Respondents [plaintiffs] contend that such action may be brought where no administrative discretion was involved in the dismissal. Each of the parties has cited decisions of this Court in support of its position. Appellant [defendant board] urges that the cases cited by respondents are inapplicable because the suits were brought by persons in fact in service. Respondents maintain that the "cases relied on by appellant are inapplicable because exercise of discretion was involved in all of them.
“ In a sense we are both right. For in none of the cases did the precise situation here existing occur; a dismissal not based on the exercise of discretion but not followed by a judicial determination that the employee should be rein ¡stated. This case is, therefore, one of first impression.”

Plaintiffs go on to argue that the rule requiring previous direction for reinstatement is a judge-made rule, not one laid down by the Legislature; that it should be applied so as to accomplish, rather than prevent, justice and that the facts pleaded here are such that the rule should be held inapplicable.

It will be noted from the foregoing that plaintiffs recognize the existence of a rule to the effect that an article 78 proceeding is' the exclusive remedy available to a discharged public employee. They characterize this as a “judge-made rule” and assert that the rule is applicable only where there is an exercise of discretion to be reviewed or where the issue depends on a consideration and weighing of the facts and that, where the issue is one of law only, relief may be obtained either by an article 78 proceeding or by an action at law.

Admittedly, the Legislature has not expressly declared that a discharged public employee must seek reinstatement in an article 78 proceeding as a condition precedent to obtaining back salary. Nevertheless, it is apparent that in those cases where we held that an article 78 proceeding had to be pursued we were not laying down a “ judge-made rule ”, but were simply announcing the legislative intent as we perceived it. While it is true that this court has not previously been called upon to consider the argument presently made by plaintiff, it cannot be doubted that the legislative intent is that the article 78 proceeding must be undertaken in those cases where the discharging body or officer has exercised no discretion as well as in those cases where the discharging body or officer has exercised discretion. This intention may be spelled out of the short Statute of Limitations prescribed for the bringing of article 78 proceedings.

Manifestly, the validity of a dismissal of a public employee should he determined expeditiously and before the possible accumulation of substantial sums for back pay. Unless reinstatement by means of an article 78 proceeding is a prerequisite to a claim for payment of salary, the dismissed employee, without rendering any service, may defer action until expiration of the six-year Statute of Limitations is imminent. What is more, if plaintiffs were correct in their theory, unless reinstatement were volunteered by the municipality, the former employee, who renders no service, might continue to sue for accruing salary until he reached retirement age. That would be quite absurd. Still, in response to questions put to him on oral argument, counsel conceded that plaintiffs’ theory was that they could continue to bring suit, while rendering no service, until they reached the age of 70 years and without having pressed for reinstatement by way of an article 78 proceeding. The notice of claim, quoted earlier, hears out the fact that such is indeed the plaintiffs’ theory. A municipality should not be placed in a position where it may have to pay the discharged employee substantial sums of money by way of accrued salary without having received services in return. This is particularly so where the municipality has been required to pay a replacement to perform the services of the discharged employee. No one can gainsay that the people of the municipality are entitled to expedition in such matters. A short Statute of Limitations was incorporated into the article 78 proceeding to assure expedition and such statute reflects the legislative intent to relegate a dismissed employee to the prompt remedy of an article 78 proceeding.

Section 1286 of the Civil Practice Act provides, in part: “ Unless a shorter time limitation is expressly provided in the law under which the proceeding is authorized, a proceeding under this article to review a determination or to compel performance of a duty specifically enjoined by law, must be instituted * * * within four months after the determination to be reviewed becomes final and binding, upon the petitioner or the person whom he represents, either in law or in fact, or after the respondent’s refusal, upon the demand of the petitioner or the person whom he represents, to perform his duty, as the case may be; * *

Thus, an article 78 proceeding in the nature of mandamus as well as one in the nature of certiorari to review is controlled by the four-month Statute of Limitations. No doubt, for the purposes of the Statute of Limitations a distinction must be observed between relief sought in the nature of certiorari and that sought in the nature of mandamus. The reason for this rests in the fact that the important factor in a proceeding in the nature of certiorari is that the aggrievement arises from a final determination. But, in the case of a proceeding in the nature of mandamus, the aggrievement does not arise from the final determination but from the refusal of the body or officer to act or to perform a duty enjoined by law. Accordingly, while it is not necessary to make a demand and await a refusal before bringing a proceeding in the nature of certiorari to review, it is necessary to make a demand and await a refusal before bringing a proceeding in the nature of mandamus and in the latter type of proceeding the Statute of Limitations does not run out until four months after the refusal (22 Carmody-Wait, New York Practice, § 289, pp. 378, 379). This does not mean that the aggrieved party can, by delay in making his demand, extend indefinitely the period during which he is required to take action. If he does not proceed promptly with his demand he may be charged with laches (22 Carmody-Wait, New York Practice, §§ 289, 297, pp. 379, 388-390). In this connection it is noteworthy that it has been specifically held that delay on the part of one removed from office in demanding reinstatement, for which there is no excuse, constitutes laches which is a good defense to his proceeding under article 78 (Matter of Peruzzin v. Test, 282 App. Div. 550).

In short, it makes little difference whether we hold that plaintiffs’ removals were the result of an exercise of discretion by the board (calling for reinstatement by way of certiorari) the City Charter involving no discretion on the part of the or were the result of an automatic operation of section 903 of board (calling for reinstatement by way of mandamus). In either case, the employee’s right to the position from which he was discharged by a body or officer (within the meaning of article 78) and thus his right to salary from the date of dismissal. will be determined promptly in an article 78 proceeding. It follows that we must say that in writing the short Statute of Limitations into the mandamus and certiorari proceedings, the Legislature intended to relegate discharged employees to those proceedings and those proceedings alone, without regard to whether or not the removal involved an exercise of discretion.

In the present case, the plaintiffs never sought reinstatement through an article 78 proceeding. They did, of course, stipulate that their claims to reinstatement were to be disposed of upon the same terms and conditions as the similar claims of the Shlakman petitioners. As previously pointed out, Slochower was ordered reinstated while the dismissal of the other Shlakman petitioners was upheld. Plaintiffs then made an application for the following alternative relief: reinstatement through application of the Slochower ruling to them or a finding that the Shlakman stipulation operated as a waiver of the four-month Statute of Limitations in the article 78 proceeding so that they might institute a separate article 78 proceeding. Their application was denied (5 Misc 2d 901) and they did not appeal from such decision. Whether this determination of Special Term was or was not correct we cannot say, the issue not being before us on this appeal. Assuming it to be incorrect, plaintiffs should have appealed from it. Assuming it to be correct, the plaintiffs are not helped, for they cannot excuse their failure to pursue the procedure made available to them by the Legislature by showing that they sought unsuccessfully to obtain the benefit of an article 78 proceeding through a stipulation later declared to be ineffectual. The Board of Higher Education could properly stipulate to extend to plaintiffs the benefit of the ruling in the Shlakman article 78 proceeding but neither the board nor the courts are empowered to confer upon plaintiffs the remedy of an action at law when the Legislature has disclosed its intention to require discharged public employees, such as plaintiffs, to proceed by way of an article 78 proceeding.

Our court is not authorized to extricate the plaintiffs from the difficult situation in which they have placed themselves. We cannot alter the legislative will as we see it expressed in section 1286 of the Civil Practice Act. As Chief Judge Cardozo has said in his book entitled “ The Jurisdiction of the Court of Appeals of the State of New York ” (2d ed., pp. 11-12): “ * * * we should recall the theory of the court’s function in our judicial system, which the Constitution reveals. That function, the court itself has defined. It is, briefly stated, the function, not of declaring justice between man and man, but of settling the law. The court exists, not for the individual litigant, but for the indefinite body of litigants, whose causes are potentially involved in the specific cause at issue. The wrongs of aggrieved suitors are only the algebraic symbols from which the court is to work out the formula of justice. Nowhere has this view been more clearly stated than by Martin, J., in Reed vs. McCord, 160 N. Y. 330, 335: The constitutional convention clearly entertained the opinion that the continued existence of the Court of Appeals was justified only by the necessity that some tribunal should exist with supreme power to authoritatively declare and settle the law uniformly throughout the state. That court was continued, not that individual suitors might secure their rights, but that the law should be uniformly settled, to the end that the people might understand the principles which regulated their dealings and conduct * * * ’.”

The Toscano case (Toscano v. McGoldrick, 300 N. Y. 156), relied upon so heavily by plaintiffs, does not stand for the proposition that an action at law for the recovery of salary illegally withheld will lie without restoration or reinstatement to the position for which the salary was claimed. There, the suit was brought by Toscano’s widow to recover the amount of salary of which he had been unlawfully deprived when the city had illegally attempted to abolish his job. Subsequent to its improper action, the city had voluntarily restored Toscano to his position. We there said that, in restoring Toscano to his position, everything that could have been done in that regard by an article 78 proceeding was accomplished and, in effect, was a concession by the city that he had been illegally removed. Here, no reinstatement has ever taken place and plaintiffs have not proved themselves entitled to be reinstated in an article 78 proceeding—the proceeding provided by the Legislature for such purpose.

The order of the Appellate Division should be reversed and the judgment of the Special Term reinstated, with costs in this court and in the Appellate Division. The question certified should be answered in the negative.

Desmond, J. (dissenting).

Every consideration of justice and fair play suggests that we should join the Appellate Division in vindicating plaintiffs ’ rights as already declared by the United States Supreme Court. No statute or controlling precedent stands in the way. Yet this court rejects their suit on the most narrow of procedural grounds.

In March, 1953 the Board of Higher Education illegally discharged these plaintiffs and others from their employment as teachers. Some of the others (including persons named Slochower and Shlakman) promptly brought article 78 mandamus-type proceedings for reinstatement. In May, 1953, two months after these discharges, the board in most positive and explicit language stipulated that these plaintiffs need not bring article 78 proceedings of their own but that they would be entitled to the relief obtained by petitioners in the pending Slochower-Shlakman proceeding. The United States Supreme Court held in April, 1956 (350 U. S. 551) that Slochower had been illegally discharged. Slochower, by order of this court, was then reinstated with back salary (2 N Y 2d 719). “ The discharge ”, wrote the Supreme Court, “ falls of its own weight as wholly without support ” (p. 559). Yet these present plaintiffs, fortified not only by the rule of stare decisis but by the board’s express stipulation, are being denied redress of any kind.

"When, after the Supreme Court decision, these plaintiffs moved in Special Term to have Slochower’s final order extended to them, they were defeated on the thin-as-air ground that the stipulation was without effect since not all the Slochower-Shlakman petitioners had carried their appeals to the Supreme Court. Special Term even held that the board had not by the stipulation waived the four months’ limitation of article 78 of the Civil Practice Act. That Special Term order was of course an incorrect interpretation of the stipulation. However, we are now told that because plaintiffs did not appeal from that order they lost all rights to redress in any forum or proceeding. I do not see why. Failure to appeal from the order might defeat any further attempt by them to get a reinstatement order on the stipulation alone. That order might even, by refusing to give effect to the stipulation, prevent the bringing by these plaintiffs of a new article 78 proceeding, since the four months’ time limitation therefor had, of course, expired while Slochower’s case was on its way up to the United States Supreme Court. But there still stood and still stands the determination of the Supreme Court that the discharge was without warrant of law. Since the board and Special Term would not enforce the stipulation, since on the faith of the stipulation plaintiffs had brought no proceeding of their own, since the board would not abide by the Supreme Court ruling and reinstate them, their only remedy was to sue for back salary, and this is such a suit. But then appeared a new defense. The board, having by stipulation agreed that plaintiffs need not bring a reinstatement proceeding, is now successfully using as a defense against the back salary claim that no reinstatement proceeding was brought. Surely a defense so lacking in equity should be rejected by the courts unless rejection is impossible under controlling authorities. I know of no such authorities.

It is the general rule, of course, that an “ employee who is illegally removed or suspended may recover back pay for the period of removal” (Rhyne, Municipal Law, § 8-22, pp. 157-158). There is no statute and not even an intimation in any statute which requires that a discharged public employee bring a mandamus-type proceeding as a preliminary to suing for back pay. The rule or practice requiring that reinstatement be first decreed was one made by the courts themselves. Formulated by the courts to accomplish justice, it has been held by the courts to be inapplicable where a clear legal right to reinstatement has been otherwise established (see Steinson v. Board, 165 N. Y. 431; Toscano v. McGoldrick, 300 N. Y. 156) or where there are other special circumstances (Bean v. Clausen, 113 App. Div. 129). There is at least one case in this court (Burke v. Holtzmann, 196 N. Y. 576) where a plaintiff illegally refused an appointment was allowed to sue for damages without first petitioning for mandamus. Here, the right to reinstatement was declared in an identical case by the highest tribunal. What proper judicial purpose could be served by saying at that point that a long-outlawed reinstatement proceeding was a prerequisite to relief, especially since the board had solemnly stipulated that no such proceeding need be brought by these people ?

Of course, a discharged public employee should not be allowed to sit back for six years without demand or suit, then sue for back salary for those years. But nothing like that happened here. By the May, 1953 stipulation it was established that plaintiffs were demanding relief. When the Supreme Court decided in favor of Slochower, these plaintiffs moved in Special Term for reinstatement and the board opposed the application. Plaintiffs have done everything possible to assert their rights. Indeed, defendant board by moving to dismiss the complaint is admitting, as it must, the fact pleaded in the complaint that plaintiffs, as the board well knows, have been ever since their dismissal ready, able and willing to go back to their jobs.

“ When it is once determined by the courts that the officer or employee was illegally removed, and that he should be reinstated and notice of such determination is given to the municipal officer whose duty it is to pay, then the city ought to obey and not defy the decision of the court ” (Jones v. City of Buffalo, 178 N. Y. 45, 49).

The order should be affirmed, with costs, and the question certified answered in the affirmative.

Judges Dye, Froessbl, Van Voorhis and Burke concur with Chief Judge Conway ; Judge Desmond dissents in an opinion in which Judge Fuld concurs.

Ordered accordingly.


source: Caselaw Access Project

author: Chief Judge Conway.

license: Public Domain

text:
    Julia Putvin, as Administratrix of the Estate of Percy J. Putvin, Deceased, Plaintiff, v. Buffalo Electric Co., Inc., et al., Defendants. Joseph Davis, Inc., Defendants and Third-Party Plaintiffs-Appellants, v. Wallace & Tiernan, Inc., Third-Party Defendant-Respondent. (And 10 Other Actions.)
    Argued January 9, 1959;
    decided April 9, 1959.

      Esmond D. Murphy for appellants.
    I. The factual disparity between the alleged delinquency of Davis and that of Wallace & Tiernan, Inc., is so great that it is just to conclude that any fault claimed by plaintiff against Davis is only passive negligence. (McFall v. Compagnie Maritime Belge, 304 N. Y. 314; Monteverdi v. French Realty Corp., 274 App. Div. 945; Robinson v. Binghamton Constr. Co., 277 App. Div. 468; Johnson v. Endicott Johnson Corp., 278 App. Div. 626; Marzella v. Carlson Hoist & Mach. Co., 280 App. Div. 955; Ellithorp v. Adams-Rice Constr. Co., 281 App. Div. 917; Ruping v. Great Atlantic & Pacific Tea Co., 283 App. Div. 204; Tipaldi v. Riverside Mem. Chapel, 273 App. Div. 414, 298 N. Y. 686.) II. Assume that the plaintiff has made the following offer of proof: during the course of their work, Davis failed to discover the existence of dangerous fumes and take suitable precautions. An objection is made. Would the trial judge sustain or overrule the objection? (Pugni v. Lanning & Harris, 196 Misc. 335; Johnson v. Endicott Johnson Corp., 278 App. Div. 626.) III. The prior decision of the Appellate Division regarding the third-party complaint of codefendant Buffalo Electric Company (Putvin v. Buffalo Elec. Co., 3 A D 2d 805) should be examined and a contrary decision reached herein. IV. Davis should be allowed to defend himself from plaintiff while striking a blow against the primary tort-feasor. (Kile v. Riefler Bros. Contrs., 282 App. Div. 1000.) V. The judgment appealed from dismissing appellants ’ third-party complaints with prejudice was unauthorized by the order of the Appellate Division and should be reversed or, in any event, modified by this court.

      Hugh McM. Russ and Ralph W. Larson for respondent.
    I. The Appellate Division has twice held that under these pleadings a defendant third-party plaintiff can only be held liable because of its own active negligence and thus is not entitled to indemnification by the third-party defendant. (Putvin v. Buffalo Elec. Co., 3 A D 2d 805, 4 A D 2d 1009; McFall v. Compagnie Maritime Belge, 304 N. Y. 314; Monteverdi v. French Realty Corp., 274 App. Div. 945; Robinson v. Binghamton Constr. Co., 277 App. Div. 468; Johnson v. Endicott Johnson Corp., 278 App. Div. 626; Marzella v. Carlson Hoist & Mach. Co., 280 App. Div. 955; Ellithorp v. Adams-Rice Constr. Co., 281 App. Div. 917; Ruping v. Great Atlantic & Pacific Tea Co., 283 App. Div. 204; Tipaldi v. Riverside Mem. Chapel, 273 App. Div. 414, 298 N. Y. 686.) II. The main complaints fail to state facts sufficient to constitute a cause of action with the result that the third-party complaints similarly fail to state a cause of action. (Pagnillo v. Mack Paving & Constr. Co., 142 App. Div. 491; Bonn v. Hotter Co., 203 Misc. 407.) III. When the third-party plaintiff has denied negligence, its third-party complaint should be dismissed. (Kile v. Riefler Bros. Contrs., 282 App. Div. 1000.) IV. Appellant cannot successfully state a third-party cause of action in implied indemnity, since the original complaints identify it solely as an active tort-feasor. (Oceanic Steam Nav. Co. v. Compania Transatlantica Espanola, 134 N. Y. 461; First Nat. Bank v. Bankers Trust Co., 151 Misc. 233; Schwarts v. Merola Bros. Constr. Corp., 290 N. Y. 145; Fletcher v. County of Broome, 286 App. Div. 286.)
   Chief Judge Conway.

All 11 of the above-entitled actions arise out of an explosion which took place on the premises of Novadel-Agene Corporation, now known as Wallace & Tiernan, Inc., in Tonawanda, New York, on September 23,1953. Wallace & Tiernan, Inc., owns and operates a chemical plant on its premises. Each of the administratrices represents a decedent who was an employee of Wallace & Tiernan, Inc., at the time of the explosion and each of the plaintiffs in the personal injury actions was so employed at the time of the explosion.

In Action No. 1 (Putvin) the complaint, after identifying the parties, alleges that the defendants Joseph Davis, Inc., and Davis Refrigeration Co., Inc., were performing work and supplying materials at and around the chemical plant on September 23,1953; that the work was being performed by their agents, servants or employees in the course of their regular employment; that plaintiff’s intestate was lawfully upon the premises ; and that, as a result of the negligence of the defendants, plaintiff’s intestate sustained severe and painful injuries from which he died.

The allegation of negligence appears in paragraph “ eleventh ” of the complaint which reads: “ That as a result of the negligence and carelessness of the employees of the defendants herein, in the performance of their work, as aforesaid, and in the handling of the materials used in connection with such' work, and without any fault or lack of care on the part of the plaintiff’s intestate contributing thereto, a blast, explosion and fire resulted in and about said premises.”

In Action No. 2 (Holzman) the complaint, after identifying the parties, alleges that on or about September 23, 1953 the defendant Joseph Davis, Inc., was engaged in the performance of certain plumbing and steamfitting work at the chemical plant; that the plaintiff’s intestate on that day while in the employ of the Lucidol Division, Novadel-Agene Corporation, now known as Wallace & Tiernan Corporation, was lawfully and properly working upon the premises of that company and received serious injuries which resulted in his death.

The allegation of negligence appears in paragraphs “seventh” and “eighth” of the complaint which read:

‘ ‘ seventh : This accident to the plaintiff-intestate and the injuries and death resulting therefrom were caused solely by the negligence of the defendants and without any negligence or want of care on the part of the plaintiff’s intestate in any wise contributing thereto.
‘‘ eighth : This accident to the plaintiff’s intestate and the injuries and death resulting therefrom were caused solely by the negligence of the defendants in the conduct of the plumbing, steamfitting, electrical and other work being done on the aforementioned premises on September 23rd, 1953, and in the failure of the defendants to supply the plaintiff’s intestate with a safe place to work.”

The record before us contains a stipulation by the parties that for the purposes of any appeal to the Appellate Division or to the Court of Appeals it will not be necessary to print the complaints and third-party complaints in any other actions than Action No. 1 and No. 2”. We assume, therefore, that the allegations in the complaints in the 10 other actions are the same as those in Actions Nos. 1 and 2.

The titles of the various actions disclose that the Buffalo Electric Co., Inc., was originally a party defendant along with Joseph Davis, Inc., and Davis Refrigeration Co., Inc. Like these two corporations, Buffalo Electric impleaded Wallace & Tiernan, Inc. In Action No. 1 Wallace & Tiernan, Inc., moved to dismiss the third-party complaint of Buffalo Electric. Special Term denied the motion but the Appellate Division unanimously reversed and granted it (3 A D 2d 805).

Similarly, in the case at bar, Wallace & Tiernan, Inc., moved to dismiss the third-party complaints of Davis. As with the Buffalo Electric third-party complaint, Special Term denied the motion but the Appellate Division unanimously reversed and granted it. In so doing, it rendered the following memorandum : ‘ ‘ The appellant concedes that the primary complaint in this action and the third-party complaint are identical with those passed upon by this court in Putvin v. Buffalo Elec. Co. (3 A D 2d 805). The several actions arise out of the same state of facts which relate to an explosion on the premises of the third-party defendant. In our prior decision we determined that in our view of the complaint the plaintiffs charge active and primary negligence against the defendant-third-party-plaintiff and recovery could only be had upon such proof. Therefore the defendant in a third-party action could not seek indemnification from the third-party defendant and its complaint was dismissed. Upon, a reconsideration of our prior decision we adhere thereto.”

Before proceeding to a treatment of the precise issue here presented, we think it advisable to recall to mind certain basic principles and considerations concerning third-party practice.

Section 193-a of the Civil Practice Act, entitled Third-party practice; courts to which applicable ’ ’, provides, in part: 1. After the service of his answer, a defendant may bring in a person not a party to the action, who is or may be liable to him for all or part of the plaintiff’s claim against him * * (Emphasis supplied.)

It will be observed that this section, in terms, authorizes the service of a third-party complaint only on one not a party to the action, i.e., one not sued by plaintiff. It is fundamental, of course, that a plaintiff in a negligence action is free to choose his defendants. Should a plaintiff sue less than all of the tortfeasors actively responsible for his injury, no impleader is possible. This is for the reason that impleader will not lie in order to secure contribution among joint tort-feasors, since such a right only arises after joint judgment has been recovered against both of them and one has paid more than his share (Civ. Prac. Act, § 211-a; Fox v. Western New York Motor Lines, 257 N. Y. 305). If the plaintiff does not elect in the first instance to join several joint tort-feasors as codefendants, there is no right of contribution and, consequently, no right to implead pursuant to section 193-a of the Civil Practice Act.

The one sued has an indemnity action over against one not sued, hence, may implead the third party, pursuant to section 193-a, if the third party has contracted to indemnify the one sued, or if the liability of the one sued is predicated on passive negligence imposed by law and that of the third party is based on active negligence (see 2 Carmody-Wait, New York Practice, §§ 65, 66, 67, pp. 611-616). As this court pointed out in McFall v. Compagnie Maritime Beige (304 N. Y. 314, 327-328):

[Tjhere is a fundamental distinction between contribution and indemnity. The right to contribution is not founded on nor does it arise from contract and only ratable or proportional reimbursement is sought in an action for contribution. In the absence of statutory provision one of several wrongdoers, who has been compelled to pay damages for the wrong committed, cannot obtain contribution from the others who participated in the commission of the wrong. Such is the rule recognized not only by the courts of this State (see, e.g., Fox v. Western New York Motor Lines, 257 N. Y. 305) but by the Federal courts (see Union Stock Yards Co. v. Chicago, B. & Q. R. Co., 196 U. S. 217, 224).
# # #
“ The common-law rule denying contribution to joint tortfeasors has been partially abrogated in this State by the enactment of section 211-a of the Civil Practice Act which authorizes contribution if two conditions exists: (1) a joint money judgment against the tort-feasors, and (2) the payment by one tortfeasor of more than his prorata share thereof. (Fox v. Western New York Motor Lines, 257 N. Y. 305, supra.)
1‘ The right to indemnity, as distinguished from contribution, is not dependent upon the legislative will. It springs from a contract, express or implied, and full, not partial, reimbursement is sought. Where several tort-feasors are involved an implied contract of indemnity arises in favor of the wrongdoer who has been guilty of passive negligence, if there be such, against the one who has been actively negligent. The actively negligent tort-feasor is considered the primary or principal wrongdoer and is held responsible for his negligent act not only to the person directly injured thereby, but also to any other person indirectly harmed by being cast in damages by operation of law for the wrongful act.”

The right of a defendant to implead another, then, depends upon his being able to demonstrate a right to be indemnified by the one he seeks to implead. As stated in McFall (supra), where several tort-feasors are involved, an implied contract of indemnity arises in favor of the wrongdoer who has been guilty of passive negligence, if there be such, against the one who has been actively negligent. So it is that a claim over against a third person charging the third person with active negligence will be allowed if the original complaint can reasonably be interpreted as including an allegation of passive negligence on the part of the defendant (see, e.g., Monteverdi v. French Realty Corp., 274 App. Div. 945, where the defendant was charged with negligence, among other things, “in suffering ” a large quantity of combustible matter to accumulate on its property. This was held to allege passive negligence). Conversely, where the defendant is alleged to be guilty only of active as distinguished from passive negligence, impleader is improper as a matter of law, since an actively negligent tort-feasor is not entitled to indemnity (see, e.g., Messaro v. Long Is. R. R. Co., 274 App. Div. 939). If the then defendant is alleged to be guilty of both active and passive negligence, impleader of the person claimed to be guilty of active negligence is proper (see, e.g., Johnson v. Endicott Johnson Corp., 278 App. Div. 626).

We turn now to the case at bar. Plaintiff in Action No. 1 sued Joseph Davis, Inc., and Davis Refrigeration Co., Inc., and the plaintiffs in the other 10 actions sued Joseph Davis, Inc. They did not sue their employer, Wallace & Tiernan, Inc. It may be assumed that they did not sue the employer because the Workmen’s Compensation Law “ shall be exclusive of all other rights and remedies for injuries to employees or for death resulting from * * * injuries ” incurred in the course of employment (N. Y. Const., art. I, § 18). In serving the third-party complaint on Wallace & Tiernan, Inc., Davis seeks to shift the liability over to the plaintiffs’ employer thus making the employer liable indirectly in an amount which could not be recovered directly. There is nothing objectionable about that, however, for, in seeking a recovery over, Davis is not suing for the damage sustained by the employees but asserts its own right of recovery for breach of an alleged independent duty or obligation owed to it by the employer as indemnitor (McFall v. Compagnie Maritime Belge, 304 N. Y. 314, 331, supra; Westchester Light. Co. v. Westchester County Small Estates Corp., 278 N. Y. 175). The objection raised as to the impleader of Wallace & Tiernan, Inc., is that the plaintiff has not pleaded facts which can be interpreted as anything other than an allegation or claim that Davis was actively negligent. If that be so, no impleader is permissible for the reason that an actively negligent tort-feasor is not entitled to indemnity.

It is frequently difficult to determine whether a defendant’s negligence has been active. This may be attributed, in part, to the fact that “ either a fault of omission or one of commission may constitute active negligence ”. (McFall v. Compagnie Maritime Belge, 304 N. Y. 314, 330, supra.) We think, however, that it is not so difficult to determine whether a defendant’s negligence has been passive. By that we mean that it seems to us that one cannot be guilty of passive negligence merely, if he has been guilty of a fault of commission. It is the omission or failure to perform a nondelegable type of duty (e.g., the duty of an owner of realty or a shipowner to furnish the injured party with a safe place to work), as distinguished from the failure to observe for the protection of the interests of another person that degree of care and vigilance which the circumstances justly demand, which constitutes passive negligence entitling one to indemnity (see McFall v. Compagnie Maritime Belge, 304 N. Y. 314, 329-330, supra; Schwartz v. Merola Bros. Constr. Corp., 290 N. Y. 145; Tipaldi v. Riverside Memorial Chapel, 273 App. Div. 414, 418, affd. 298 N. Y. 686). As the cited cases show, the owner of the realty or ship who is under a nondelegable duty may be held liable to the one injured, but may then recover over against the one doing the work.

The complaint in Action No. 1 before us alleges that the defendants, who were performing work and supplying materials at and around the Wallace & Tiernan chemical plant, were guilty of negligence “in the performance of their work, as aforesaid, and in the handling of the materials used in connection with such work ’ ’. Clearly, such complaint charges the defendants with a fault of commission—negligence in the performance of their work. There is no suggestion in the complaint to the effect that defendants omitted to perform a nondelegable duty imposed upon them by law which would render them liable to plaintiffs as passive tort-feasors, but which would permit them to seek indemnity of Wallace & Tiernan, Inc., as the active and affirmative tort-feasor.

In Action No. 2 the complaint alleges that the defendant Davis was engaged in the performance of certain plumbing and steamfitting work at the chemical plant, that the accident to plaintiff’s intestate was “ caused solely by the negligence of the defendants in the conduct of the plumbing, steamfitting, electrical and other work being done on the aforementioned premises on September 23rd, 1953, and in the failure of the defendants to supply the plaintiff’s intestate with a safe place to work.”

This complaint, like the complaint in Action No. 1, charges the defendant with active negligence — with a fault of commission, negligence in the performance of its work. At first blush, it might seem that it charges passive negligence insofar as it alleges that defendant Davis was guilty of negligence ‘1 in the failure of the defendants to supply the plaintiff’s intestate with a safe place to work.” However, upon analysis it will be seen that, taken in the context of the complaint, this is not an allegation of passive negligence. There was no relationship of master and servant or employer and employee between plaintiff and defendant Davis. And, if there was, then the failure to furnish plaintiff with a safe place to work would constitute active negligence. Nor is the defendant Davis the owner of a building who has a nondelegable duty to supply contractors’ workmen with a safe place to work. Bather, the defendant is an independent contractor working in a building where the plaintiff was employed. Thus, in legal contemplation, plaintiff and defendant were strangers. Defendant did, of course, owe plaintiff a duty not to make plaintiff’s place to work unsafe by the manner in which it performed its work on the premises of plaintiff’s employer. Undoubtedly this is the sense of plaintiff’s allegation. In a word, defendant is being charged with negligence in the performance of its work on the premises of Wallace & Tiernan — active negligence.

It is true, as appellant Davis argues, that there is a right of recovery over, against a primary wrongdoer whose misconduct has created a dangerous condition, by one who has been held liable for failure to discover and remedy the danger (see Ruping v. Great Atlantic & Pacific Tea Co., 283 App. Div. 204, 206). But, as the Appellate Division pointed out in dismissing the complaint of Buffalo Electric (3 A D 2d 805): The plaintiffs make no claim that the defendant-third-party plaintiff negligently failed to discover and guard against a dangerous condition created by the third-party defendant. They make no claim that the defendant-third-party plaintiff had knowledge or notice of any dangerous condition created by the third-party defendant and negligently failed to guard against it. Moreover, the defendant-third-party plaintiff disclaims knowledge or notice, actual or constructive, of any dangerous condition created on the premises by the third-party defendant.” The reason for disclaiming such knowledge is that the one seeking indemnity may be barred from recovering from the creator of the danger if after discovery of the danger he has acquiesced in the continuation of the condition (see Ruping v. Great Atlantic & Pacific Tea Co., 283 App, Div. 204, 206, supra).

Defendants make much of the McFall case (cited supra). They argue, relying on language in that case, that the factual disparity between the alleged delinquency of Davis and that of Wallace & Tiernan is so great that it is just to conclude that any fault claimed by plaintiff against Davis is only passive negligence.

Even a casual reading of the McFall opinion will reveal that defendants can draw no comfort from it.

There, we were not faced with the question of whether the primary complaint contained allegations which would warrant the defendants in impleading a third person. The case came to us after trial and we were concerned with questions of proof. The plaintiff, a longshoreman in the employ of Transoceanic Terminal Corporation, had been overcome by carbon tetrachloride fumes while working aboard the cargo vessel S. S. Stavelot. The plaintiff had a recovery against the Compagine Maritime Beige, as bareboat charterer of the vessel, and the Dow Chemical Company, the manufacturer and shipper of the carbon tetrachloride. Belgian Line sought a recovery over against Dow and Transoceanic (plaintiff’s employer which had loaded the drums of carbon tetrachloride) and Dow sought a recovery over against Transoceanic, In the course of the opinion we said (304 N. Y. 330): “ The evidence earlier outlined shows that Belgian Line was guilty of a fault of omission whereas Transoceanic, in negligently handling the drums, and Dow, in supplying inadequate drums, were guilty of faults pf commission [case cited]. While that is not always determinative, since either a fault of omission or one of commission may constitute active negligence, it seems to us that the factual disparity between the delinquency of Transoceanic and Dow and that of Belgian Line is so great here that the jury was justified in concluding that Belgian Line’s fault of omission was only passive negligence.”

All we were saying there was- that the jury was justified in finding that the Belgian Line, the charterer of the boat, which had a nondelegable duty to furnish longshoremen working on the vessel with a safe place to work, was guilty of passive negligence only. We have already pointed out that defendants here do not stand in the position of a shipowner or boat charterer or owner of realty. On the contrary, their position is like that of Transoceanic which was doing the work on board the vessel. Transoceanic was held to be actively negligent.

Point II of Davis’ brief reads: Assume that the plaintiff has made the following offer of proof: during the course of their work, Davis failed to discover the existence of dangerous fumes and take suitable precautions. An objection is made. Would the trial judge sustain or overrule the objection? ”

Under this point Davis says: “ We believe that if a trial judge were required to pass upon the offer of proof illustrated in Point II above, he might be inclined to receive the proof.” (Brief, p. 25, emphasis supplied.) By raising this -point and employing the equivocal language that it does, Davis seems to recognize that no such proof can properly be admitted under the language of the primary complaints. In any event, the question of what a trial court might do in these cases concerning the admission of such evidence is beside the point. The only pertinent question is what proof can properly be admitted into evidence under the language of the primary complaints. We may not speculate as to the course a Trial Judge might follow. By their complaints the plaintiffs are limited to proof of affirmative acts of negligence on the part of Davis. True, if there is a variance between proof and pleadings, plaintiffs may move to conform the pleadings to the proof. The question here, however, relates to the pleadings only.

In its final point Davis complains of the fact that the judgment entered on the order of the Appellate Division declares that the third-party complaints are dismissed “ with prejudice The quoted words do not appear in the order of the Appellate Division dismissing the third-party complaints. Davis asks that the judgment be modified by striking out the said words.

By its memorandum and order all that the Appellate Division determined was that the third-party complaints failed to state a cause of action. That is not a determination on the merits (Civ. Prac. Act, § 482) and it can hardly be argued that the words “ with prejudice ”, added to the Appellate Division determination by the attorneys for Wallace & Tiernan when they entered the judgment on the order of the Appellate Division, were intended t© mean “ on the merits ”, inasmuch as the case has not yet reached the trial stage. Bather, the words ‘ ‘ with prejudice” are the antonym of “without prejudice ” and, in the posture of the actions before us, can mean no more than that Davis can serve no further or amended third-party complaints in these actions as the plaintiffs’ complaints now stand. No doubt the words “with prejudice” are gratuitous and superfluous, for no further or amended third-party complaint can be served by Davis in the absence of specific grant by the Appellate Division of the right to plead further. However that may be, the words “ with prejudice ” merely carry out the sense of the Appellate Division order and, so, need not be stricken from the judgment.

The judgment should be affirmed, with costs.

Judges Desmond, Dye, Fuld, Froessel and Burke concur with Chief Judge Conway; Judge Van Voorhis dissents and votes to reverse and to deny the motion upon the ground that it is premature to dismiss the third-party complaint before it is known upon what basis recovery, if any, may be awarded at the trial to the original plaintiff against the third-party plaintiffs.

Judgment affirmed.

       It should also be noted that under the provisions of section 264 of the Civil Practice Act any party to the action who claims that any other party to the action is, or may be, liable to him for all or any part of the claim asserted against him may have such question determined in the same action, where all of the matters are properly determinable in one action, and provided such determination will not delay a judgment in the main controversy. Thus, a cross complaint may be asserted to enforce a right of indemnity based either on an express agreement or a common-law liability (see 4 Carmody-Wait, New York Practice, § 79, p. 424).