author: Chief Judge Desmond. Froessel, J. (concurring).

text:
    Jack Kilberg, as Administrator of the Estate of Edward J. Kilberg, Deceased, Appellant, v. Northeast Airlines, Inc., Respondent.
    Argued October 12, 1960;
    decided January 12, 1961.

      Lee 8. Kreindler, Leonard J. Fassler and Jay B. Handwerger for appellant.
    I. Special Term below correctly ruled that the second cause of action is maintainable under section 116 of the New York Decedent Estate Law. Plaintiff’s contractual theory of action governs. (DeRoire v. Lehigh Val. R. R. Co., 205 App. Div. 549; Henderson v. Lincoln Rochester Trust Co., 198 Misc. 82, 277 App. Div. 1093, 303 N. Y. 27; Busch v. Interborough R. T. Co., 187 N. Y. 388; Daniel v. Brooklyn Heights R. R. Co., 76 Misc. 482, 153 App. Div. 901; Brown v. Fifth Ave. Coach Lines, 16 Misc 2d 692; Barad v. New York R. T. Corp., 162 Misc. 458; Dyke v. Erie Ry. Co., 45 N. Y. 113; Faron v. Eastern Airlines, 193 Misc. 395; Erie R. R. Co. v. Tompkins, 304 U. S. 64; Maynard v. Eastern Air Lines, 178 F. 2d 139; Blessington v. McCrory Stores Corp., 305 N. Y. 140; Oates v. City of Rochester, 207 Misc. 420; Doedt v. Wiswall, 15 How. Prac. 128, 15 How. Prac. 145.) II. The cause of action for breach of contract is governed by the law of New York. (Dyke v. Erie Ry. Co., 45 N. Y. 113; Fish v. Delaware, L. & W. R. R. Co., 211 N. Y. 374, 245 U. S. 675; Sundberg v. Aktiebolget Svenska Amerika Linien, 6 Misc 2d 1069; Auten v. Auten, 308 N. Y. 155; Randy Knitwear v. American Cyanamid Co., 7 A D 2d 116; Noel v. Airponents, Inc., 169 F. Supp. 348.) III. The cause of action for breach of contract of safe carriage survived to the estate of the deceased under section 116 of the New York Decedent Estate Law. (Daniel v. Brooklyn Heights R. R. Co., 76 Misc. 482, 153 App. Div. 901; Doedt v. Wiswall, 15 How. Prac. 128, 15 How. Prac. 145.) IV. Special Term correctly ruled that the measure of damages under the second cause of action is loss of accumulations to the estate of decedent. The measure of damages for.the breach of contract action under section 116 of the Decedent Estate Law is the amount the deceased would have accumulated had he lived out his normal life expectancy. (Preston Co. v. Funkhouser, 261 N. Y. 140; Ehrenworth v. Stuhmer & Co., 229 N. Y. 210; Alexander’s Dept. Stores v. Ohrbach’s, Inc., 269 App. Div. 321; Rochester Lantern Co. v. Stiles & Parker Press Co., 135 N. Y. 209; Griffin v. Colver, 16 N. Y. 489; Haughey v. Belmont Quadrangle Drilling Corp., 284 N. Y. 136; Ryan v. Progressive Grocery Stores, 255 N. Y. 388; Schlick v. New York Dugan Bros., 175 Misc. 182; Busch v. Interborough R. T. Corp., 187 N. Y. 388; Daniel v. Brooklyn Heights R .R. Co., 76 Misc. 482, 153 App. Div. 901; Coorman v. Brooklyn Heights R. R. Co., 127 App. Div. 315.) V. Damages for loss of accumulations are sufficiently certain to be allowed under the laws of New York. (Wakeman v. Wheeler & Wilson Mfg. Co., 101 N. Y. 205; Myers v. Sea Beach Ry. Co., 43 App. Div. 573, 167 N. Y. 581; Federal Waste Paper Corp. v. Garment Center Capitol, 185 Misc. 818; Harris Struc

      tural Steel Co. v. Chapman, 162 Misc. 709; United States Trust Co. v. O’Brien, 143 N. Y. 284; Countryman v. Fonda, J. & G. R. R. Co., 166 N. Y. 201; Klepal v. Pennsylvania R. R. Co., 129 F. Supp. 668, 229 F. 2d 610; Sider v. General Elec. Co., 238 N. Y. 64; Grayson v. Irvmar Realty Corp., 7 A D 2d 436; Thomas v. Union Ry. Co., 18 App. Div. 185.)

      William J. Junker man, James B. McQuillan and Maurice L. Noyer for respondent.
    I. Since Massachusetts was the place where the injuries causing death were inflicted, the laws of that State govern the right of action and the extent of the damages recoverable. (Baldwin v. Powell, 294 N. Y. 130; Whitford v. Panama R. R. Co., 23 N. Y. 465; Johnson v. Phoenix Bridge Co., 197 N. Y. 316; Loucks v. Standard Oil Co., 224 N. Y. 99; Debevoise v. New York, L. E. & W. B. B. Co., 98 N. Y. 377; Boyal Ind. Co. v. Atchison, T. & S. F. By. Co., 272 App. Div. 246, 297 N. Y. 619; Wyman v. Pan American Airways, 181 Mise. 963, 267 App. Div. 947, 293 N. Y. 878, 324 U. S. 882; Maynard v. Eastern Air Lines, 178 F. 2d 139.) II. Appellant’s reliance upon several old New York cases is misplaced and he misconstrues the import of the more modern decisions. (Dyke v. Erie By. Co., 45 N. Y. 113; Daniel v. Brooklyn Bieights B. B. Co., 76 Mise. 482,153 App. Div. 901; Doedt v. Wiswall, 15 How. Prac. 128, 15 How. Prac. 145; Busch v. Interborough B. T. Co., 187 N. Y. 388; Barad v. New York B. T. Corp., 162 Mise. 458; Webber v. Herkimer $ Mohawk St. B. B. Co., 109 N. Y. 311; Loehr v. East Side Omnibus Corp., 259 App. Div. 200, 287 N. Y. 670; Bernstein v. Queens County Jockey Club, 222 App. Div. 191; Fish v. Delaware, L. é W. B. B. Co., 211 N. Y. 374.)
   Chief Judge Desmond.

Defendant is a common carrier of passengers by air. Plaintiff’s intestate, a passenger on one of defendant’s planes, was killed in August, 1958 when the airship crashed and burned at Nantucket, Massachusetts, in the course of a flight from a New York airport. The complaint pleads three causes of action but this appeal has to do, immediately, with the second count only. That part of the complaint has been dismissed for insufficiency by the Appellate Division which reversed Special Term’s denial of defendant’s motion to dismiss. Plaintiff appeals here from the dismissal. We shall have occasion farther on in this opinion to discuss the first cause of action in which plaintiff sues under the Massachusetts wrongful death statute.

The disputed second cause of action alleges that plaintiff’s intestate before boarding the plane at La Guardia Airport bought from defendant a ticket for transportation to Nantucket, that defendant by causing his death in the crash breached its contract to carry him safely and that as a result the passenger’s estate and his dependent suffered substantial damages (stated as $150,000) for which his administrator sues and which include “ loss of accumulations of prospective earnings of the deceased.” There was in effect at the time of this disaster section 2 of chapter 229 of the General Statutes of Massachusetts which gave a cause of action against a common carrier for negligently causing a passenger’s death but limited to not less than $2,000 or more than $15,000 the damages to be awarded therefor. Special Term, citing Dyke v. Erie Ry. Co. (45 N. Y. 113) and other authorities, held that plaintiff could sue in contract and that the law of New York, the place of contract, governed such a cause of action and not the law of Massachusetts, the place of the wrong. The Appellate Division, considering the Dyke decision inapplicable, took the position that the second cause of action, however labeled or phrased, is in tort for negligently causing death and as such is subject to the damage limitation of the Massachusetts wrongful death statute.

Plaintiff’s submission as to this second count is that it sounds in contract and so is governed for all purposes by the law of New York, the place of contract. If the alleged contract breach had caused injuries not resulting in death, a New York-governed contract suit would, we will assume, be available (Dyke v. Erie Ry. Co., 45 N. Y. 113, 117, supra; Busch v. Interborough R. T. Co., 187 N. Y. 388; Fish v. Delaware, L. & W. R. R. Co., 211 N. Y. 374, app. dsmd. 245 U. S. 675; Restatement, Conflict of Laws, § 337). But it is law long settled that wrongful death actions, being unknown to the common law, derive from statutes only and that the statute which governs such an action is that of the place of the wrong (Whitford v. Panama R. R. Co., 23 N. Y. 465; Baldwin v. Powell, 294 N. Y. 130). Language found in the old case of Doedt v. Wiswall (15 How. Prac. 128, 141, affd. 15 How. Prac. 145) cannot be used to overrule so basic a rule. It follows, as the Appellate Division correctly held here, that plaintiff as administrator has no separate right to sue this carrier in contract for causing his intestate’s death (Webber v. Herkimer & Mohawk St. R. R. Co., 109 N. Y. 311), that the cause of action for injuries did not survive (Bernstein v. Queens County Jockey Club, 222 App. Div. 191, and cases cited therein), and that the second cause of action had to be dismissed.

That does not mean, however, that for this alleged wrong plaintiff cannot possibly recover more than the $15,000 maximum specified in the Massachusetts act. Modern conditions make it unjust and anomalous to subject the traveling citizen of this State to the varying laws of other States through and over which they move. The number of States limiting death case damages has become smaller over the years but there are still 14 of them (compare the list in Tiffany, Death by Wrongful Act [1st ed., 1893], p. xvii, with the data found in Martindale-Hubbell Law Digests, 1960 ed., Yol. IV). An air traveler from New York may in a flight of a few hours’ duration pass through several of those commonwealths. His plane may meet with disaster in a State he never intended to cross but into which the plane has flown because of bad weather or other unexpected developments, or an airplane’s catastrophic descent may begin in -one State and end in another. The place of injury becomes entirely fortuitous. Our courts should if possible provide protection for our own State’s people against unfair and anachronistic treatment of the lawsuits which result from these disasters. There is available, we find, a way of accomplishing this conformably to our State’s public policy and without doing violence to the accepted pattern of conflict of law rules.

Since both Massachusetts (General Statutes, ch. 229, §§ 1, 2, as in effect in Sept. 1958) and New York (Decedent Estate Law, § 130) authorize wrongful death suits against common carriers, the only controversy is as to amount of damages recoverable. New York’s public policy prohibiting the imposition of limits on such damages is strong, clear and old. Since the Constitution of 1894, our basic law has been (N. Y. Const., art. I, § 16; N. Y. Const. [1894], art. I, § 18) that “ The right of action now existing to recover damages for injuries resulting in death shall never be abrogated; and the amount recoverable shall not be subject to any statutory limitation.” Each later revision of the State Constitution has included this same prohibition against limitations of death action damages. The reasons for its adoption are set forth in the proceedings of the 1894 Constitutional Convention (see discussion in Lincoln’s Constitutional History of New York, Vol. III, pp. 57-65, and in Medinger v. Brooklyn Heights R. R. Co., 6 App. Div. 42 [1896]). New York’s original wrongful death law (L. 1847, ch. 450), passed very soon after Lord Campbell’s Act became law in Great Britain, had like the latter no restriction as to damages. The Legislature later imposed such limits but the convention which drew the 1894 Constitution rejected and forbade theriíy “ The argument which evidently controlled the convention in its action consisted of the claim that the arbitrary limitation was absurd and unjust in measuring the pecuniary values of all lives to the next of kin by the same arbitrary standard ” (Justice Hatch in Medinger opinion, supra, p. 46). The absurdity and injustice have become increasingly apparent in the six decades that have followed. For our courts to be limited by this damage ceiling (at least as to our own domiciliarles) is so completely contrary to our public policy that we should refuse to apply that part of the Massachusetts law (see Mertz v. Mertz, 271 N. Y. 466, 471; Shannon v. Irving Trust Co., 275 N. Y. 95, 102, 103). The Massachusetts cases likewise say that Massachusetts will enforce the lex loci delicti in wrongful death suits unless Massachusetts public policy forbids (see Higgins v. Central New England R. R. Co., 155 Mass. 176; Jackson v. Anthony, 282 Mass. 540, 545, 547).

An illustration of our readiness to reject such arbitrary limitations, on public policy grounds, is Conklin v. Canadian-Colonial Airways (266 N. Y. 244). In the Conklin suit plaintiff’s intestate had purchased in Albany a plane ticket to Newark, New Jersey, which on its face limited to $5,000 defendant’s liability for negligently causing a passenger’s death. That limitation, just like the limitation here in question, was contrary to New York’s public policy but valid in New Jersey which was the place of the plane disaster and of defendant’s alleged wrongdoing. The public policy which allowed us to strike down the contractual limitation in Conklin’s case has no less effect here. We will still require plaintiff to sue on the Massachusetts statute but we refuse on public policy grounds to enforce one of its provisions as to damages.

Actually, we have in Wooden v. Western N. Y. & Pa. R. R. Co. (126 N. Y. 10, 16-17) a flat holding by our court that, in an action brought for causing a wrongful death in Pennsylvania, the New York courts would enforce our limitation of damages (as it then existed) although Pennsylvania had no such limitation. The reason, equally pertinent here, is that the ‘ ‘ restriction pertains to the remedy rather than the right ” (p. 16) and “ does not strictly affect the rule of damages, but rather the extent of damages, and that extent, as limited or unlimited, does not enter into any definition of the right enforced or the cause of action permitted to be prosecuted." Louchs v. Standard Oil Co. (224 N. Y. 99) does not overrule Wooden (supra). Looking at the true holding of the Louchs case (supra) rather than picking out language from the opinion, we find that the court was merely deciding that the minimum set for recovery in the Massachusetts wrongful death statute did not make it a “penal statute” unenforcible here because contrary to our public policy (see Chief Judge Cabdozo’s reference to Loucks in Wikoff v. Hirschel, 258 N. Y. 28, 30).

As to conflict of law rules it is of course settled that the law of the forum is usually in control as to procedures including remedies (Franklin Sugar Refining Co. v. Lipowicz, 247 N. Y. 465, 468; Russell v. Societe Anonyme, 268 N. Y. 173, 181). However, as Professor Leflar says (Conflict of Laws, § 60), remedial and substantive “ shade into each other constantly” and “ the law of the forum normally determines for itself” whether a given question is one of substance or procedure. This is the conventional approach and was the one used in the only New York appellate decision on the subject (Murray v. New York, O. & W. R. R. Co., 242 App. Div. 374; see Collins v. American Auto. Ins. Co., 230 F. 2d 416, 422; 32 N. Y. U. L. Rev. 786; Restatement, Conflict of Laws, § 584). As to whether the measure of damages should be treated as a procedural or a substantive matter in wrongful death cases, there is authority both ways (see, for instance, Walton School of Commerce v. Stroud, 248 Mich. 85) and no controlling New York decision except the statements quoted in an earlier paragraph of this opinion from the Wooden decision (126 N. Y. 10, 17, supra). It is open to us, therefore, particularly in view of our own strong public policy as to death action damages, to treat the measure of damages in this case as being a procedural or remedial question controlled by our own State policies. , # /

Some of the older Federal cases (see Northern Pacific R. R. Co. v. Babcock, 154 U. S. 190; Slater v. Mexican Nat. R. R. Co., 194 U. S. 120, 126) gave defendants the benefits of limitations of damages found in the law of the place of wrong, regardless of where the actions were brought. Those cases, however, are not binding on us and do not bring into play the full faith and credit clause of the Constitution (see Wells v. Simonds Abrasive Co., 345 U. S. 514). We think that time has proven the wisdom and practicality of the Slater case dissent, which adopted the rule of Wooden v. Western N. Y. & Pa. R. R. Co. (supra).

From all of this it follows that while plaintiff’s second or contract cause of action is demurrable, his first count declaring under the Massachusetts wrongful death action is not only sustainable but can be enforced, if the proof so justifies, without regard to the $15,000 limit. Plaintiff, therefore, may apply if he be so advised for leave to amend his first cause of action accordingly.

The judgment appealed from should be affirmed, with costs.

Fttld, J. (concurring). I, too, believe that the judgment dismissing the contract cause of action alleged in the second count of the complaint should be affirmed. However, having made that determination, I would go no further. . , /, i

To expatiate on this, I would say that, while I agree that the second count — the only one before us—fails to state a cause of action, I find no warrant or justification for going beyond that single issue and considering, sua sponte, questions which underlie the complaint’s first count alleging a cause of action for wrongful death under the Massachusetts statute. I do not mean to suggest that, in passing upon a case, a court is confined to the authorities furnished or the arguments advanced by counsel, for I deem it clear that, within certain limits, a court is free to reach a decision concerning the issue posed on any ground available. (See, e.g., Rentways, Inc., v. O’Neill Milk & Cream Co., 308 N. Y. 342, 349.) But, as I have already indicated, this does not entitle a court to discuss or decide an issue which not only is not argued by the parties, but actually is not raised or presented by the record.

In this case, the court is called upon to decide only the sufficiency of the second cause of action, sounding in contract, and, quite obviously, whether the monetary limitation specified in the Massachusetts wrongful death statute may be disregarded has nothing whatsoever to do with that decision. Consequently, I feel constrained to limit my discussion to the validity of the contract cause of action. Decision on the question whether the maximum prescribed by the Massachusetts statute measures the amount which the plaintiff may recover on his first cause of action should await an appeal where that issue is presented and the parties have had an opportunity of briefing and arguing it.

As to the question before us, the sufficiency of the contract cause of action, one might well begin by noting that in Baker v. Bolton (1 Camp. 493), decided in 1808, Lord Elleitborottgh declared, by way of dictum, that, “ In a civil court, the death of a human being could not be complained of as an injury ”. Learned authors attacked the rule thus announced as ‘‘ obviously unjust ”—it had as its consequence that “ it was more profitable for the defendant to kill the plaintiff than to scratch him ” (Prosser, Torts [2d ed., 1955], p. 710)—and as being “based upon a misreading of legal history”. (3 Holdsworth, History of English Law [3d ed., 1923], p. 336; see, also, Salmond, Torts [12th ed., 1957], p. 625; Winfield, Death as Affecting Liability in Tort, 29 Col. L. Rev. 239, 252-253.) Nevertheless, harsh and anomalous though it was, the rule prevailed in England and in this country until the enactment of wrongful death statutes. (See 2 Harper and James, The Law of Torts [1956], pp. 128A-1285; Prosser, op. cit., pp. 709-710; Salmond, op. cit., pp. 623-625.).

Although it appears that in England, even before enactment in 1846 of the wrongful death statute known as Lord Campbell’s Act, it had been held that, “ where death is caused by the breach of a carrier’s implied contract for safe carriage, the executor or administrator, although he could not sue in tort, [could] sue in contract, and recover damages suffered by the decedent’s estate ” (Tiffany, Death by Wrongful Act [2d ed., 1913], p. 21; see, also, Salmond, op. cit., p. 624), no such exception seems to have been recognized in the United States. In fact, in New York, this English exception for wrongful death arising out of a breach of contract of safe carriage was disavowed in this court as early as 1866 in the case of Green v. Hudson Riv. R. R. Co. (2 Keyes 294; 2 Abb. Ct. App. 277, affg. 28 Barb. 9), where the complaint alleged ‘ ‘ that the deceased became a passenger on a train from Albany to New York, under the usual engagement to be safely carried, and that by the gross carelessness and unskillfulness of the defendant’s agents, a collision occurred, by means of which the said [passenger] was then and there killed ” (28 Barb. 9, 14). Although the rule was acknowledged to be harsh or narrow ” (2 Keyes, at p. 303; 2 Abb. Ct. App., at p. 286), the court, nevertheless, denied recovery and concluded that ‘ ‘ It is sufficient that the rule is settled so firmly that courts would travel beyond their province into the boundaries of legislation by any attempt to alter it, or to create, by their decision, causes of action not before known ” ( 2 Keyes, at p. 295; 2 Abb. Ct. App., at p. 279; see also, Duncan v. St. Luke’s Hosp., 113 App. Div. 68, affd. 192 N. Y. 580).

Thus, whatever may have been the English rule as to recovery for death arising out of a breach of contract of safe carriage, in New York, at least, there was no recovery at common law. The question arises, then, whether, following enactment of a wrongful death statute in this State, an action could be brought on contract for damages for death resulting from the breach of a carrier’s agreement. The answer seems to be in the affirmative where the wrongful act causing death, as well as the agreement, occurred in this State. (See Doedt v. Wiswall, 15 How. Prac. 128, affd. 15 How. Prac. 145; cf. Greco v. Kresge Co., 277 N. Y. 26, 34, citing the Doedt case with approval; Roche v. St. John’s Riverside Hosp., 96 Misc. 289, affd. 176 App. Div. 885; Keiper v. Anderson, 138 Minn. 392.) This, though, does not resolve the problem presented by the case before us, where, although the agreement of safe carriage was made in New York, the wrongful act causing death occurred elsewhere,

If this were, a matter of first impression, it might be effectively argued that, where “ two or more communities are touched or affected by a factual sequence ”, the “ guide to the governing law ’ ’ should be the jurisdiction having ‘1 the most significant contact or contacts ” (Harper, Policy Bases of the Conflict of Laws: Reflections on Rereading Professor Lorenzen’s Essays, 56 Tale L. J. 1155, 1161). And, since the contract of safe carriage was undertaken in New York and since this fact provides a more significant contact” than the adventitious occurrence of the crash in Massachusetts, it might well be further urged, this State’s wrongful death statute and not that of Massachusetts should apply.

Impressed though I am by the theoretical soundness of such a position, I am forced to the conclusion that it is foreclosed by our decisions, In Crowly v. Panama R. R. Co. (30 Barb. 99), which presents a fact pattern not unlike that in this case, the plaintiff’s intestate had entered into a contract of safe carriage in New York and was killed as the result of acts of negligence of the carriers in Panama. Although Panama had no wrongful death statute at the time, New York did, and the plaintiff attempted to bring himself under that statute by arguing that the contract was made, and the fare paid, in this state ” (30 Barb., at p. 109). The court rejected this argument and dismissed the complaint. Not only has the Growly decision been cited with approval by this court (e.g., Leonard v. Columbia Steam Nav. Co., 84 N. Y. 48, 53; McDonald v. Mallory, 77 N. Y. 546, 550; Widtford v. Panama R. R. Co., 23 N. Y. 465, 475), but we have categorically declared, and quite recently, that our wrongful death statute (Decedent Estate Law, § 130) ‘' applies only to actions brought for damages for a wrong committed here causing the death of a person ’ ’ and is to be given no extraterritorial effect in cases where injury and death occur outside of the State. (Baldwin v. Powell, 294 N. Y. 130, 132; see, also, Debevoise v. New York, L. E. & W. R. R. Co., 98 N. Y. 377, 379; McDonald v. Mallory, 77 N. Y. 546, 550, supra.)

Nor does section 116 of the Decedent Estate Law, upon which the plaintiff relies, give him a right to sue in contract for his intestate’s allegedly wrongful death. That statute, simply declaring that actions upon contract, may be maintained by and against executors, in all cases in which the same might have been maintained, by or against their respective testators ’ ’, creates no new rights or liabilities. Since, as is apparent, plaintiff’s intestate could not have maintained the cause of action alleged in the second count, there was no right of action to survive his death.

In sum, then, limiting consideration to the only matter before us, it is my conclusion that no action ex contractu is available to the plaintiff under either the common law of New York or its wrongful death statute and that, therefore, the Appellate Division properly granted the defendant’s motion to dismiss the second cause of action.

Froessel, J. (concurring).

We concur for affirmance of the judgment appealed from, dismissing plaintiff’s second cause of action. We should reach no other question. In this case, defendant moved to dismiss the second cause of action for legal insufficiency, and nothing more; the subsequent notices of appeal were limited accordingly. Special Term denied the motion. The Appellate Division unanimously reversed and granted the motion, properly stating that it was not concerned here with the causes of action for wrongful death and conscious pain and suffering ”, We think the court below was entirely correct.

Although the first cause of action is not before us, and it has not been argued or passed upon by the courts below, the majority of this court is now reaching out to consider that cause of action, without application of any kind with respect thereto on the part of anyone. It is exercising discretion usually exercised by the courts below, as to a cause of action not properly before us, and granting plaintiff leave to apply for amendment of that cause of action on the assumption that plaintiff’s intestate was a resident of this State at the time of his death. This procedure is not only unprecedented, but extends beyond our province.

Moreover, the court is laying down a new rule of law whereby we disregard the Massachusetts limitation as to damages in a wrongful death action, thereby undermining the accepted pattern of conflict of law rules, in effect overruling numerous decisions of this court, and completely disregarding the overwhelming weight of authority in this country.

It has long been recognized as the law of this State that the right to maintain an action for wrongful death is dependent upon the existence of a statute creating such a right at the place where the injury resulting in death occurred (Whitford v. Panama R. R. Co., 23 N. Y. 465, 482; Baldwin v. Powell, 294 N. Y. 130, 132; Royal Ind. Co. v. Atchison, T. & S. F. Ry. Co., 272 App. Div. 246, 250, affd. 297 N. Y. 619). Equally well settled is the proposition that our own statute creating such a cause of action (Decedent Estate Law, § 130) is not to be given extraterritorial effect in cases where the wrongful death occurred outside of this State (Debevoise v. New York, L. E. & W. R. R. Co., 98 N. Y. 377; Baldwin v. Powell, supra; Royal Ind. Co. v. Atchison, T. & S. F. Ry. Co., supra).

Plaintiff’s right to maintain this action must therefore stem from the provisions of the Massachusetts statute (Mass. Gen. Stats., ch. 229, § 2). That statute, however, expressly limits the extent of the right given, and declares that the damages assessed thereunder shall not be more than $15,000. In effect, this is tantamount to providing that there shall be no cause of action for wrongful death beyond this amount. The majority, by giving extraterritorial effect to our prohibition against the limitation of recovery in such actions, would permit plaintiff to recover on the basis of the foreign law, and yet not be bound by its express limitation. Such action was vigorously condemned by the Supreme Court of the United States in Slater v. Mexican Nat. R. R. Co. (194 U. S. 120, 126) where Mr. Justice Holmes, writing for the court, stated: “ It seems to us unjust to allow a plaintiff to come here absolutely depending on the foreign law for the foundation of his case, and yet to deny the defendant the benefit of whatever limitations on his liability that law would impose.” This was reaffirmed in Western Union Tel. Co. v. Brown (234 U. S. 542, 547) and Black Diamond v. Stewart & Sons (336 U. S. 386, 395-396 [1948]).

No sound reason appears why our courts, in enforcing such a right at all, should not enforce it in its entirety. This court has no power to determine what the public policy of Massachusetts should be (Coster v. Coster, 289 N. Y. 438, 443), and we may not ignore foreign law affecting the substantive rights of the parties merely because such law differs from our own (id., at p. 442).

In Loucks v. Standard Oil Co. (224 N. Y. 99, 111), although it was suggested that our courts might refuse to enforce a right based upon a foreign statute “ that outrages the public policy of New York ”, this court held that a Massachusetts act, very similar to the one with which we are now confronted, must be enforced — despite the fact that we “ cannot give them the same judgment that our law would give if the wrong had been done here ” (224 N. Y., at pp. 111-112). Thus Judge Caedozo in his opinion clearly indicated that the maximum damages would be controlled by the Massachusetts statute.

In Royal Ind. Co. v. Atchison, T. & S. F. Ry. Co. (272 App. Div. 246, 250, affd. 297 N. Y. 619, supra), where our court refused to apply New York law as to additional liability, it was held to be “ well established that a cause of action for wrongful death and the extent of the damage recoverable is governed by the laws of the place where the injuries causing death were inflicted ” (emphasis supplied).

As long ago as Whitford v. Panama R. R. Co. (23 N. Y. 465, 481-482, supra) this court adopted as “ eminently sound and conclusive the discussion of the precise question now before us by Mr. Justice Woodruff in Whitford v. Panama R. R. Co. (3 Bosw. 67, 83) where it was stated (23 N. Y. 482): “ ‘ Let it be supposed that New Granada has by law * * * prescribed the cases in which the defendants should be liable for a death caused by the negligence of their servants, and the extent of that liability. It would not, we think, be gravely insisted, that they use their railroad under any other or greater responsibility than is so prescribed.’ ” (Emphasis supplied.)

This court has repeatedly affirmed decisions below, which held that, in a wrongful death action based on a foreign statute, interest shall not be allowed upon the amount of recovery from the time of death when the foreign statute contained no provision therefor (Kiefer v. Grand Trunk Ry. Co., 12 App. Div. 28, affd. on opinion below 153 N. Y. 688; Wyman v. Pan Amer. Airways, 181 Misc. 963, affd. 267 App. Div. 947, affd. 293 N. Y. 878; Colliton v. United Shipyards, 256 App. Div. 923, affd. 281 N. Y. 582). The principle involved in. these cases is the same as that involved in the case at bar. Since we refuse to allow interest (although our own statute requires it as part of the amount of recovery [Decedent Estate Law, § 132]) when no provision is made therefor in the law of the place of death, that same policy requires that no greater damages shall be allowed than are there provided. The “ right to interest is inseparable from the right to damages ” (Kiefer v. Grand Trunk Ry. Co., 12 App. Div. 28, 32, supra).

This court has also held, in an action for conversion, that the amount of damages recoverable must be governed by the law of the State where the loss was occasioned and not by our law (Hasbrouck v. New York Cent. & H. R. R. R. Co., 202 N. Y. 363, 377).

The views here expressed have also been recognized as the law of New York by the Federal courts sitting in this State. In Maynard v. Eastern Air Lines (178 F. 2d 139 [2d Cir.]) the court submitted the issue of negligence to the jury with instructions that the recovery could not exceed $20,000, the limitation imposed by the terms of the Connecticut death' statute, the State where the accident occurred. On appeal, the Court of Appeals for the Second Circuit affirmed, holding that according to the law of New York the Connecticut law with its limitation of damages was applicable.

In our opinion, these precedents are conclusive, and may not be disregarded without being overruled. The principle which they affirm is clearly the well-established law of this State.

Although we recognize that decisions from other jurisdictions are not controlling, it should be noted that the overwhelming weight of judicial authority in the United States is in accord with the view that the law of the place of injury governs not only the existence of the cause of action for wrongful death, but also the measure of damages (see cases collected in 15 A. L. R. 2d 765-766; 25 C. J. S., Death, § 28, p. 1101; Goodrich, Conflict of Laws, § 105; Restatement, Conflict of Laws, §§ 391, 412, 417; Leflar, Conflict of Laws, § 114). While Professor Leflar does note (§ 60, p. 109) that the procedural and substantive law ‘ ‘ shade into each other constantly ’ ’, he clearly states, in the same chapter, that The size of the right is a part of the right ” and that, therefore, the “ measure of damages should be treated as a substantive rather than a procedural matter, and that the amount of the award should be determined by the rules of law of the place of the tort * * * rather than by the rules of the forum, as such. There is some authority the other way, treating measure of damages as procedure merely, on the idea that it does not constitute the right but only the remedy given in substitution for the right. This carries a nice theory to a point at which it conflicts with common understanding.” (Leflar, Conflict of Laws, § 65, p. 118.)

The note-writer in 15 A. L. R. 2d cites 25 jurisdictions in this country in support of that majority view, and but 4 for the proposition that the amount of damages is governed by the law of the forum. Two of the latter jurisdictions, Massachusetts (Higgins v. Central New England & W. R. R. Co., 155 Mass. 176) and New York (Wooden v. Western N. Y. & Pa. R. R. Co., 126 N. Y. 10), no longer adhere to that view and have joined the ranks of the majority (see Jackson v. Anthony, 282 Mass. 540, 546-547, for an express rejection of the Higgins decision ; Loucks v. Standard Oil Co., 224 N. Y. 99, supra, and the other cases referred to earlier in this opinion for a rejection of the Wooden dicta. That dicta mistakenly relied on Dennick v. Central R. R. of N. J., 103 U. S. 11, which, in speaking of the remedy, merely decided that a New York -administratrix may sue for a wrongful death in New Jersey; it in oiowise held that damages might be treated as a procedural or remedial.question).

Furthermore, questions relating to such defenses as contributory (comparative) negligence (Fitzpatrick v. International Ry. Co., 252 N. Y. 127), charitable immunity (Kaufman v. American Youth Hostels, 5 N Y 2d 1016), incapacity of wife to sue (Coster v. Coster, 289 N. Y. 438, supra) and the Statute of Limitations (Lipton v. Lockheed Aircraft Corp., 307 N. Y. 775) have all been regarded by this court as regulated by the law of the place of the injury rather than our own law, since they involve the substantial rights of the parties. In each of these cases we applied a foreign rule of law, although such rule was clearly contrary to the law of our own State, and we applied it whether it benefited the plaintiff or the defendant. In our opinion, the defense raised in the case at bar must be treated in the same manner—viz., by applying the law of Massachusetts, the place of death.

The majority would apply our own law of damages because the place of injury is entirely fortuitous. The same argument may be made with respect to each of the cases just referred to. We should not overrule well-established principles, nor “ refuse to enforce a foreign right ’ ’ at our pleasure, to suit our ‘ ‘ individual notion of expediency or fairness ’ ’ (Loucks v. Standard Oil Co., 224 N. Y. 99, 111, supra).

The position adopted by the majority may result in the situation where, in a single airplane crash in which numerous passengers from various States are killed, a different law will be applied in each action resulting therefrom. The courts of each State, if they followed the majority view, would then apply their own law of damages to the case. As Judge Cabdozo pointed out in the Loucks case (supra), “ The theory of the statute personal, a body of national law which the citizen carries about with him * * * is a theory which has yielded generally in this country to the principles of the territorial system and the doctrine of vested rights ” (224 N. Y., supra, at p. 109). We should not attempt to revive it now.

The case of Conklin v. Canadian-Colonial Airways (266 N. Y. 244) has no applicability to the question before us. That case involved the validity of a contractual limitation upon a carrier’s common-law liability. In the instant case, not only is the limitation imposed by statute rather than by contract, but, as we have seen, there was no underlying common-law liability.

Finally, we have grave doubts as to the constitutionality of the majority view in light of the decision of the Supreme Court of the United States in Hughes v. Fetter (341 U. S. 609) and section 1738 of title 28 of the United States Code, the implementing statute under the full faith and credit clause of the United States Constitution (art. IV, § 1), which provides that full faith and credit be accorded to the acts of the Legislature of any State.

Accordingly, the judgment appealed from dismissing plaintiff’s second cause of action should be affirmed, with costs.

Judges Dye, Burke and Foster concur with Chief Judge Desmond; Judge Fuld concurs in result in a separate opinion; Judge Froessbl concurs for affirmance in a separate opinion in which Judge Van Voorhis concurs.

Judgment affirmed.

      . In the Greco case (277 N. Y. 26, supra), this court unequivocally approved the Deodt case, stating significantly (p. 34): “ Nor is an action any the less on contract because the elements of damage arise out of a trespass (Sullivan v. Dunham, 161 N. Y. 290), or an assault (Busch v. Interborough R. T. Co., supra) or other personal injury (Doedt v. Wiswall, 15 How. Pr. 128; affd., 15 How. Pr. 145; Gillespie v. Brooklyn Heights R. R. Co., 178 N. Y. 347). Violation of a duty owing to another is a wrongful act; breach of a contract involving violation of duty may he likewise a wrongful act.”


source: Caselaw Access Project

author: Van Voorhis, J. Chief Judge Desmond (dissenting).

license: Public Domain

text:
    The People of the State of New York, Respondent, v. Miguel A. Munoz, Appellant.
    Argued October 13, 1960;
    decided January 12, 1961.

      Harold J. Rothwax and Anthony F. Marra for appellant.
    I. The statute violates the due process clauses of the Fourteenth Amendment of the Federal Constitution and of section 6 of article I of the New York Constitution by reason of the vagueness, indefiniteness and uncertainty of its wording. (People ex rel. Frost v. Woodbury, 213 N. Y. 51; Connally v. General Constr. Co., 269 U. S. 385; Lanzetta v. New Jersey, 306 U. S. 451; Trio Distr. Corp. v. City of Albany, 2 N Y 2d 690; United States v. Cardiff, 344 U. S. 174; Pierce v. United States, 314 U. S. 306; Winters v. New York, 333 U. S. 507.) II. The statute violates the due process clauses of the Fourteenth Amendment of the Federal Constitution and of section 6 of article I of the New York Constitution by reason of its being an arbitrary exercise of the police power. (Good Humor Corp. v. City of New York, 290 N. Y. 312; Tot v. United States, 319 U. S. 463.) III. The statute violates the equal protection clauses of the Fourteenth Amendment of the Federal Constitution and of section 11 of article I of the New York Constitution by reason of its discriminatory age classification. (Morey v. Doud, 354 U. S. 457; Royster Guano Co. v. Virginia, 253 U. S. 412; Louisville Gas Co. v. Coleman, 277 U. S. 32; Ex Parte McCarver, 39 Texas Crim. 448.)

      Isidore Dollinger, District Attorney (Bertram R. Gelfand of counsel), for respondent.
    I. Section 436-5.2 of the Administrative Code of the City of New York is a valid exercise of the police power. (Good Humor Corp. v. City of New York, 290 N. Y. 312; Allied Stores of Ohio v. Bowers, 358 U. S. 522; Morey v. Doud, 354 U. S. 457; Beauharnais v. Illinois, 343 U. S. 250; Walton v. City of Atlanta, 89 F. Supp. 309, 340 U. S. 823; People v. Perretta, 253 N. Y. 305; People v. Weinstein, 5 A D 2d 698, 4 N Y 2d 986; People v. Faxlanger, 1 A D 2d 92, 1 N Y 2d 393; People v. Ford Motor Co., 271 App. Div. 141; People v. Klufas, 1 Misc 2d 828, 2 A D 2d 958; Lincoln Bldg. Associates v. Barr, 1 N Y 2d 413.) II. Section 436-5.2 of the Administrative Code of the City of New York is not violative of the equal protection clauses of the United States and New York State Constitutions. (Matter of Engelsher v. Jacobs, 5 N Y 2d 370; Smith v. Cahoon, 283 U. S. 553; Noyes v. Wohl, 266 App. Div. 52, 291 N. Y. 695; Citizens’ Tel. Co. v. Fuller, 229 U. S. 322; Myer v. Myer, 271 App. Div. 465; Matter of Colmes v. Fisher, 239 App. Div. 587; Farrall v. Bragalini, 11 Misc 2d 1075.) III. The law is not vague, indefinite, nor uncertain and satisfies the requirements of the due process clauses of both the Federal and State Constitutions. (Lanzetta v. New Jersey, 306 U. S. 451; Raley v. Ohio, 360 U. S. 423; Scull v. Virginia, 359 U. S. 344; Winters v. New York, 333 U. S. 507; Trio Distr. Corp. v. City of Albany, 2 N Y 2d 690; People v. Terra, 303 N. Y. 332.)

      Nanette Dembitz for New York Civil Liberties Union, amicus curia.

    I. The law under which appellant was convicted violates the due process guarantee because it does not give sufficiently clear and definite notice of what conduct is criminal. (People v. Shifrin, 301 N. Y. 445; People v. Phyfe, 136 N. Y. 554; People v. Adamkiewicz, 298 N. Y. 176; People v. Vetri, 309 N. Y. 401; People v. Grogan, 260 N. Y. 138.) II. The law under which appellant was convicted violates the due process guarantee because it unreasonably and arbitrarily subjects youths under 21 to criminal convictions. (People v. Adamkiewicz, 298 N. Y. 176; People v. Terra, 303 N. Y. 332, 342 U. S. 938; Tot v. United States, 319 U. S. 463; People v. Persce, 204 N. Y. 397; Adler v. Board of Educ., 342 U. S. 485.) III. Intent or fault is requisite for criminality. (Smith v. California, 361 U. S. 147; People v. Flack, 125 N. Y. 324; Lambert v. California, 355 U. S. 225;
      People v. Estreich, 272 App. Div. 698, 297 N. Y. 910; Morissette v. United States, 342 U. S. 246; People v. Kibler, 106 N. Y. 321; People v. Werner, 174 N. Y. 132; People v. Wallace & Co., 282 N. Y. 417.) IV. The instant law violates the State and Federal due process clauses because there are here none of the factors making it reasonable to impose criminal penalties absent wrongful intent. (Sunday Lake Iron Co. v. Wakefield, 247 U. S. 350; Yick Wo v. Hopkins, 118 U. S. 356.)
   Van Voorhis, J.

Appellant stands convicted of violating section 436-5.2 of the New York City Administrative Code for having had in his possession, in his right pocket, an ordinary two-bladed small pocket penknife. Appellant contends that carrying a penknife cannot be made a crime, that this section of the Administrative Code constitutes an abuse of the police power of the State and that its language renders it void, in any event, for uncertainty. This local law was then worded as follows:

‘ ‘ § 436-5.2 Possession of knives or instruments, a. Legislative findings. It is hereby declared and found that the unlawful use by persons under twenty-one years of age in public places, streets and parks of the city, of knives and sharp pointed or edged instruments is a menace to the public health, peace, safety and welfare of the people of the city; that the possession in public places, streets and parks of such knives or instruments by such persons has resulted in the commission of many homicides, robberies, maimings and assaults of and upon the people of the city; that this condition encourages and fosters the commission of crimes, and contributes to juvenile delinquency, youth crime and gangsterism; that unless the possession or carrying by persons under twenty-one years of age in public places, streets and parks of the city of such knives or instruments is prohibited, there is danger of an increase in crimes of violence, teen-age gang wars and other conditions detrimental to public peace, safety and welfare; that the necessity for legislative intervention by the enactment of the provisions of this section is imperative and is hereby declared as a matter of legislative determination.

“ b. It shall be unlawful for any person under the age of twenty-one years to carry on his person or have in his possession, in any public place, street or park any knife or sharp pointed or edged instrument which may be used for cutting or puncturing.

* c. Such person shall not be in violation of this section if his possession of such knife or instrument is then necessary for his employment, trade or occupation, or if such possession is for use while he is engaged in or is proceeding to or returning from a place of hunting, trapping or fishing, and wherever required, is also carrying a currently valid license issued to him under the provisions of section one hundred eighty of the conservation law, or if such person is a duly enrolled member of the Boy Scouts of America or a similar organization or society and such possession is necessary to participate in the activities of such organization or society, or if the said knife or instrument is carried under circumstances that tend to establish that its possession is for a lawful purpose, not however to include self-defense or amusement.

d. Violation of this section shall be an offense punishable by a fine of not more than fifty dollars, or by imprisonment not exceeding thirty days, or by both such fine and imprisonment.”

This is a broad enactment designed to meet a limited though serious evil. Its validity depends not upon the object toward which it is directed but on the method by which it is sought to be attained. We shall first consider appellant’s point that it is void for uncertainty. Statutes which create crimes must be definite in specifying conduct which is condemned or prohibited. They must afford some comprehensible guide, rule or information as to what must be done and what must be avoided, to the end that the ordinary member of society may know how to comply with its requirements.” (People v. Grogan, 260 N. Y. 138, 145, per Crane, J.; People v. Shifrin, 301 N. Y. 445, 447; People v. Diaz, 4 N Y 2d 469.) The vice in statutory law of this nature is that it conceals what persons are included and what acts are prohibited (United States v. Cardiff, 344 U. S. 174). As was remarked by Mr. Justice Frankfurter in Winters v. New York (333 U. S. 507, 540): “ Definiteness is designedly avoided so as to allow the net to be east at large, to enable men to be caught who are vaguely undesirable in the eyes of police and prosecution, although not chargeable with any particular offense.”

This section of the Administrative Code is too vague and too general to indicate what persons are included or what acts are prohibited (United States v. Cardiff, supra). Carrying a pocket penknife or many of the other articles included in this section is not evil in itself. This is not a case where conceptions of moral guilt can furnish some measure of the legislative intent. There is no moral guilt in carrying a penknife, apart from this local law. Guilt, if any, consists entirely in violation of a legislative fiat. Therefore, it is necessary that the elements of the offense be spelled out in words even more explicitly, so that the citizen may receive unequivocal warning before conduct otherwise innocent be made the cause of fine or imprisonment (People v. Shifrin, supra). The first uncertai nty in section 436-5.2 of the Administrative Code arises from not knowing what is covered by the description of prohibited instruments. Subdivision b states that it shall be unlawful for minors to carry ‘ ‘ any knife or sharp pointed or edged instrument which may be used for cutting or puncturing.” This has been construed by .the officers charged with its enforcement to include more than instruments which would ordinarily be termed weapons, as is shown by the circumstance that appellant has been prosecuted and convicted for carrying a penknife. The theory is that even a penknife could be used at close range to maim or perhaps kill another person. Eyes could, of. course, be put out by “ sharp pointed ’ ’ instruments such as fountain pens, nails or a variety .of other trinkets or gadgets that could be carried on the person. Under opportune circumstances, any device might be used to maim or kill, which can even be accomplished by using the feet or hands with no implement at all. Shakespeare pointed out that death could be caused by “ a bare bodkin.” This section of the Administrative Code would prevent a minor from carrying a bodkin in the streets, it may be assumed, whether a bodkin be a poniard or a needle, at least if he were-doing so for amusement or in self-defense. It is more difficult to answer what would happen, under the language of this enactment, if he bought knitting needles, let us suppose, in a department store, and was carrying them home to give to his mother or sister. What would happen, .it may be wondered, if the sister, being also a minor, bought knitting needles herself and took them toward home in order to engage in this familiar feminine pastime? Would she be guilty of a violation? The language does not distinguish between the sexes. A knitting needle is a pointed instrument that may be used for puncturing. It can be as dangerous an implement in delinquent hands as a penknife or a fountain pen. A safety razor is a sharp edged instrument that might be used for cutting. Are youths of 19 or 20 years prohibited from buying safety razors, nail files, or other potentially dangerous toilet articles if they are carried home on the person through the streets ? Enough has been said, to indicate the vagueness of the language which attempts to define what kinds of instruments are covered. It is not limited to daggers, poniards nor even jackknives. The definition has no boundary excluding from the section’s coverage the most commonly used and innocently possessed devices of everyday life.

It is said that the language purports to forbid carrying such articles only under certain circumstances. It excludes instances where ‘1 the said knife or instrument is carried under circumstances that tend to establish that its possession is for a lawful purpose, not however to include self-defense or amusement.” This language does not help to save the validity of the section, but only renders it more obscure and contradictory. Except for self-defense or amusement (a boy could not carry a penknife for self-protection, nor in order to whittle or play mumble-the-peg), this section does not purport to prohibit carrying knives or any kind of instrument for a lawful purpose. Carrying a penknife is lawful, unless this section renders it unlawful. The net result, when analyzed, is that this section prohibits what is lawful only if it is unlawful. This is self-contradictory. No one can know what it means.

This section does not say that such instruments shall be presumed to have been carried in the streets by minors with intent to commit homicide, robbery, maiming or assault, unless the accused shall demonstrate that he had the article on his person to serve some special purpose that is lawful, e.g., that he carried a penknife in order to sharpen pencils to do his schoolwork. If the draftsman of this local law had included carrying the article with criminal intent, there would have been less difficulty in sustaining it as subdivision 11 of section 722 of the Penal Law was sustained in People v. Pieri (269 N. Y. 315) on the basis of performing the acts forbidden while harboring an evil intent. There, intent was an ingredient in the offense. Here, upon the other hand, necessity of proving criminal intent by the proseention was exactly what the draftsman of this local law aimed to avoid. He sought to make this alleged offense malum prohibitum, but created an exception in case the accused proved that he was not actuated by purposes that were malum in se. This adds to the confusion. A defendant is to be exonerated if he proves that he was not animated by criminal intent — i.e., that he carried the penknife for lawful purposes —-notwithstanding that carrying it for criminal purposes is no part of the offense. The purpose to be served by this enactment could only be to enable prosecution of those whom the police believe to be bad boys or girls. That does not warrant conviction of a criminal or quasi-criminal offense. This section is subject to the same defect as the statute struck down in Lanzella v. New Jersey (306 U. S. 451, Ann. 83 L. ed. 893 et seq.) which attempted unsuccessfully to create the crime of being a ‘1 gangster ’

Crimes may be created without intent as a factor other than an intent to commit the prohibited act (People v. Persce, 204 N. Y. 397, 401-402), but there must be some reasonable relationship between the public safety, health, morals or welfare and the act prohibited (People v. Bunis, 9 N Y 2d 1; Good Humor Corp. v. City of New York, 290 N. Y. 312; People v. Belcastro, 356 Ill. 144, Ann. 92 A. L. R. 1228; City of Portland v. City of Bangor, 65 Me. 120; Matter of Thompson, 117 Mo. 83; Ex parte Hudgins, 86 W. Va. 526, Ann. 9 A. L. R. 1366). Loitering under subdivision 2 of section 1990-a of the Penal Law (People v. Bell, 306 N. Y. 110) or under section 7 of the Waterfront Commission Act (People v. Merolla, 9 N Y 2d 62), disorderly conduct by congregating on a public street in violation of subdivision 3 of section 722 with intent to provoke a breach of the peace coupled with refusal to move when ordered by the police (People v. Galpern, 259 N. Y. 279), and vagrancy under section 887 of the Code of Criminal Procedure (People v. Sohn, 269 N. Y. 330) have been held inferentially to be authorized exercises of the police power. It is for the courts to determine, not how the police power should be exercised, but whether there is reasonable relation between the statute or ordinance and the object sought to be attained (People v. Bunis, supra; Good Humor Corp. v. City of New York, supra, pp. 320-321). In People v. Belcastro (supra) the Illinois Supreme Court held unconstitutional a statute making subject to conviction as vagabonds all persons reputed to be habitual violators of the criminal laws, remarking that the Legislature may not delegate to administrative officers the determination of what the law should be, or to determine what acts are necessary to effectuate the law. A statute authorizing the commitment of vagrants on the ex parte determination of two overseers of the poor has been held unconstitutional in Maine as depriving persons of liberty without due process of law (City of Portland v. City of Bangor, supra). The same result attended a statute in Missouri which authorized one not accused of crime to be hired for a specified period to the highest bidder after a finding of vagrancy by a jury (Matter of Thompson, supra).

Even if the local law in suit had required the prosecution to show an intention to use the penknife for some unlawful purpose, there could have been no statutory presumption of evil intent from mere possession of the penknife in the public street. Legislative presumptions, to be valid, must have enough basis in human experience so that the presumption has some fair relation to or natural connection with the fact on which the presumption rests (McFarland v. American Sugar Co., 241 U. S. 79, 86 [Holmes, J.]; People v. Russo, 278 App. Div. 98, 101-104 [Cohn, J.], and cases cited, affd. 303 N. Y. 673). To apply a statutory presumption of unlawful intent ‘ ‘ to the possession of a tool of everyday use violates the spirit and intent of enforcement procedure.” (People v. Adamkiewicz, 298 N. Y. 176, 179.) A presumption of unlawful intent is permissible only with regard to instruments that are ‘ ‘ not likely * * * to be found in the possession of innocent parties ’ ” (People v. Terra, 303 N. Y. 332, 336, appeal dsmd. 342 U. S. 938), and whose “Accidental and innocent possession * * * would be extraordinary and unusual ”. (Tot v. United States, 319 U. S. 463, 470.)

Section 436-5.2 of the Administrative Code is patterned to some extent on section 1897 of the Penal Law, but with the important distinction that the Legislature limited the malum prohibitum crime to the possession of articles which, from their nature, are not likely to be found on innocent persons, i.e., “ blackjack, slungshot, billy, sandclub, sandbag, metal knuckles, bludgeon”. The mere possession of articles of that kind was made enough on which to convict. But ‘ ‘ intent to use the same unlawfully against another ’ ’ was required by the Legislature before a person could be convicted of carrying “ a dagger, dirk, dangerous knife, razor, stiletto, imitation pistol, machine-gun, sawed off shot-gun, or any other dangerous or deadly weapon ”. These last are more dangerous than penknives but, owing to the possibility that some of them might be innocently possessed, the Legislature required proof that they were possessed with criminal intent. When it came to the enactment of section 436-5.2 of the Administrative Code, the need for proving criminal intent was abolished even in the case of possession of such ordinarily innocuous articles as penknives or fountain pens. In People v. Adamkiewicz (supra) it was held that intent to use an icepick for criminal purposes could not be inferred from its possession. That accords with the analysis of section 1897 of the Penal Law in People v. Persce (204 N. Y. 397, supra).

It is not for us to say that a statute or local law could go no farther than section 1897 of the Penal Law and still be constitutional. Nevertheless section 436-5.2 of the Administrative Code, in our judgment, exceeds the latitude which is open to the municipal legislative body in exercising the police power. Possession of penknives, knitting needles, fountain pens and the like is so far from being ordinarily for criminal purposes, that merely carrying them on the person cannot be regarded as a criminal or quasi-criminal offense. It bears no relation to the public safety, and consequently is not a valid use of the police power.

Juvenile delinquents can be highly dangerous, especially in large cities. They cannot be legislated out of existence, however, nor be held guilty of offenses on the sole basis of status, or except insofar as they may be found guilty from their conduct of violating criminal or quasi-criminal statutes that are sufficiently definite so that one may know in advance what is prohibited, and which represent a proper exercise of the police power. A statute or local law would not be valid which prevented all persons under 21 years of age from using the streets or other public places of a city, for the reason that they might turn out to be juvenile delinquents and hence potentially dangerous. Such a “preventive” law would go too far. Neither would it be valid if it forbade their use to minors having buttons on their coats, or fountain pens or penknives in their pockets. We do not hold that no statute would be valid distinguishing between minors and adults in prohibiting weapons or potential weapons which can be carried on their persons, nor do we decide in advance what might validly be covered in all cases by a statute or local law designed to serve the objective of this section of the Administrative Code. We hold merely that this enactment is unconstitutional and void for the reasons above stated.

The judgment of conviction of appellant should be reversed and the complaint dismissed.

Chief Judge Desmond (dissenting).

As the legislative findings recite (see East New York Sav. Bank v. Hahn, 293 N. Y. 622, affd. 326 U. S. 230) and as our records show and we all know, the possession by young people in the public streets and parks in New York City of knives and other sharp pointed or edged instruments "resulted in the commission of many homicides, robberies, maimings and assaults of and upon the people of the city ”, and the continued possession of such instruments by the young people of the city presented an ever present danger of teen-age gang wars. The members of the City Council, exercising their police power, enacted that the possession or carrying of such instruments in public places in New York City by persons under 21 years of age should be a punishable offense. The statute is surely of equal validity with section 1896 of the Penal Law, which makes it a misdemeanor to sell or possess a switchblade knife. It does not go nearly so far as subdivision g of section 436-5.0 of the Administrative Code of the City of New York, which makes criminal the selling or possession of an imitation pistol or revolver of particular color or appearance (see People v. Weinstein, 4 N Y 2d 986), or section 1894-a of the Penal Law, which penalizes the sale of ordinary fireworks.

I see nothing vague or indefinite about this local law. It forbids the carrying in public places of knives and sharp pointed or edged instruments 1 ‘ which may be used for cutting or puncturing ”. Of course, that outlaws some articles which could be used for peaceful purposes but the statute contains carefully drawn exceptions. It excludes from its coverage persons whose possession of such knives or instruments is necessary in their occupations, and persons who are licensed hunters, trappers or fishermen. It exempts members of the Boy Scouts of America and similar organizations when the possession of knives is necessary for the activities of the organization, and it excludes all cases where the knife or instrument is carried for a lawful purpose not including self-defense or amusement. Why should there be any difficulty in construing or applying such language?

Of course, this is a drastic statute but it was enacted by reasonable and practical men to deal with a desperaté situation and to protect the peace and safety of a crowded city, difficult to govern at best. None of the cases cited in the majority opinion invalidate such a law. With proper self-restraint we have consistently refused to strike down police power statutes except as a “last resort ” and have consistently applied the presumption of constitutionality (Wiggins v. Town of Somers, 4 N Y 2d 215). This is notably a case for such self-restraint. The courts should not interfere with the local legislature’s reasonable and intelligent efforts to deal with public, widespread disorder.

The judgment should be affirmed.

Judges Ftjld, Froessel, Burke and Foster concur with Judge Van Voorhis ; Chief Judge Desmond dissents in an opinion in which Judge Dye concurs.

Judgment reversed and complaint dismissed.


author: Froessel, J.

text:
    The People of the State of New York, Respondent, v. Angelo Merolla, Appellant.
    Argued November 30, 1960;
    decided January 12, 1961.

      Frank Serri and Henry A. Scardapane for appellant.
    I. Measured by the test in the Bell case (306 N. Y. 110), defendant did not loiter without a satisfactory explanation and his conviction should be reversed. (Winters v. New York, 333 U. S. 507; People v. Grogan, 260 N. Y. 138; People v. Pieri, 269 N. Y. 315; People v. Bell, 306 N. Y. 110; People v. Johnson, 6 N Y 2d 549; Boyd v. Boyd, 252 N. Y. 422.) II. The pier loitering statute is so vague, ambiguous and lacking in definite standards as to violate both Federal and State Constitutions. (United States v. Brewer, 139 U. S. 278; People v. Vetri, 309 N. Y. 401; Lanzetta v. New Jersey, 306 U. S. 451; People v. Firth, 3 N Y 2d 472; People v. Diaz, 4 N Y 2d 469; Nash v. United States, 229 U. S. 373; Miller v. United States, 357 U. S. 301.) III. Since defendant did not testify, his record was not properly before the trial court and is not properly before the appellate court. (People v. Zackowitz, 254 N. Y. 192; People v. Dovico, 6 A D 2d 457.)

      Edward S. Silver, District Attorney (William Sonenshine and Aaron E. Koota of counsel), for respondent.
    I. The statute in issue is not vague, ambiguous, or otherwise in conflict with constitutional requirements of certainty. (People v. Bell, 306 N. Y. 110; People v. Johnson, 6 N Y 2d 549; People v. Diaz, 4 N Y 2d 469.) II. The offer of proof that appellant had previously been denied registration as a longshoreman did not improperly put appellant’s character in issue—particularly in view of defense counsel’s concession that such an order was in fact entered and outstanding. III. The evidence was more than sufficient to warrant the trial court’s finding of guilt beyond a reasonable doubt. (People v. McCarthy, 250 N. Y. 358; People v. Pesky, 254 N. Y. 373; People v. Lobel, 298 N. Y. 243; People v. Gluck, 188 N. Y. 167.)

      William P. Sirignano and Irving Malchman for Waterfront Commission of New York Harbor, amicus curies.

    The statutory proscription against loitering within 500 feet of a pier without a satisfactory explanation is in no respect vague or uncertain as applied to appellant who loitered in front of a pier for a substantial period of time early in the morning when longshoremen gathered to commence work and who gave a palpably false explanation as to his purpose in being there. (People v. Faxlanger, 1 N Y 2d 393; People v. Terra, 303 N. Y. 332; People v. Bell, 306 N. Y. 110; People v. Diaz, 4 N Y 2d 469.)

   Froessel, J.

On the morning of September 30, 1958, three investigators attached to the New York Waterfront Commission, New York Harbor, and a detective from the Kings County District Attorney’s office were stationed upon a promenade overlooking Pier No. 2 at the Brooklyn waterfront. They observed the activities of defendant from 7:05 to 7:40 a.m. He was standing below them but about 100 feet distant, in front but somewhat to the side of Pier No. 2. On that pier was erected an enclosed structure, with an open ramp immediately alongside, jutting out into the water. The area where defendant was standing was used as a waterfront facility for loading and unloading merchandise. It was known as the “farm area”, and “considered part of the pier area ” as well as part of the Port of New York District (see Port of New York Authority Compact, art. II; L. 1921, ch. 154). A wire fence separated this farm area from the adjoining property directly in front of Pier No. 2. That area has since been built upon and fenced off.

During the period of observation, 12 men dressed in longshoremen’s attire approached defendant at separate intervals, had conversations 1 ‘ in close contact ’ ’ with him, and 9 of the 12 gave him money in the form of bills. Each of the 12, after completing his conversation or transaction with defendant, proceeded to enter upon the pier. It was observed that defendant made notations on some of the bills given him, and, additionally, upon a slip of white paper.

After defendant was thus observed for over half an hour, two of the investigators and the detective entered their car and drove down to the pier level. One of them, Investigator Donato, there approached defendant and, upon interrogation, the latter stated that he was selling women’s shoes to friends for the Concord Shoe Company at $3.50 a pair. When asked by the investigator for specific names of the individual purchasers, defendant stated that “ he hadn’t started to sell any shoes as yet ”.

A search of defendant’s automobile following this conversation disclosed neither “shoes” nor other “merchandise”. Defendant’s person was also searched and $57 in bills of various denominations and $2.50 in coins were found. Four of the bills bore penciled figure notations. The white slip of paper, however, was not found.

Immediately after this episode at the waterfront, defendant was taken to the office of the Brooklyn District Attorney’s Racket Squad and was interrogated. When there asked if he had had any conversations with the owner of the shoe company for which he was allegedly selling shoes, defendant stated, “ Not yet”.

At the trial, the owner of the Concord Shoe Company, one Irving Shore, a brother-in-law of defendant, testified that the latter was not in his employ on September 30, 1958, nor prior thereto, and, further, that he had not seen nor had conversation with defendant since the preceding Christmas, about nine months before. Shore did state, however, that he had spoken with his sister-in-law prior to September 30, 1958, and told her to have defendant ‘ ‘ come up ’ ’ and he would ‘1 give him some accounts to go in with samples and he will sell”. The accounts which Shore had in mind were Brooklyn and Manhattan department stores; however, although he was a manufacturer and did not retail his merchandise, he had no objection if defendant were to sell to individuals on a retail basis.

Upon the foregoing record—based upon the testimony of two of the investigators present at the scene, and the witness Shore, the only witnesses at the trial—defendant was found guilty (with one dissenting vote) of violating section 7 of the Waterfront Commission Act (L. 1953, ch. 882, as amd. by L. 1957. ch. 188), which provides: “ No person shall, without a satisfactory explanation, loiter upon any vessel, dock, wharf, pier, bulkhead, terminal, warehouse, or other waterfront facility or within five hundred feet thereof in that portion of the Port of New York district within the state of New York.” Defendant was sentenced to 60 days in the workhouse.

Defendant on this appeal challenges the propriety of his conviction on three grounds: It is urged that the statute is unconstitutional; that the evidence was insufficient to prove guilt beyond a reasonable doubt; and that prejudicial error was committed at the trial in regard to the offer in evidence, without objection, of an order of the Waterfront Commission denying defendant’s application for registration as a longshoreman.

In this opinion we shall treat only with the constitutional question presented. Defendant’s other points, which we find lacking in merit, do not warrant discussion. With regard to the constitutional question, defendant maintains that the statute is vague, ambiguous, and lacking in definite standards. More particularly, defendant challenges the provisions of the statute confining the offense to those loitering ‘ ‘ without a satisfactory explanation ’ ’ and 1 ‘ within five hundred feet ” of a waterfront facility.

This court, when called upon in the past to resolve challenges of a similar constitutional nature, has consistently recognized that the term ‘ ‘ loiter ” or “ loitering ’ ’ is one of common and accepted meaning (People v. Bell, 306 N. Y. 110, 113, 116-117; People v. Diaz, 4 N Y 2d 469, 470; People v. Johnson, 6 N Y 2d 549, 552). Our cited decisions indicate, however, that notwithstanding the well-understood meaning — acquired through extended usage — of the term loiter or loitering, when taken 1 ‘ by itself, and without more ”, it is not “ enough to inform a citizen of its criminal implications and, by the same token, leave it open to arbitrary enforcement” (People v. Diaz, supra, at p. 470). The clarity and certainty necessary to satisfy constitutional requirements may be acquired, however, by reference to the context in which the term is used.

Thus, in the Diaz case (supra), a statute dealing with loitering, without more, on public streets at large was declared constitutionally void. The statute provided: “No person shall lounge or loiter about any street or street corner in the City of Dunkirk.” The term loiter or loitering as “ use[d] ” in the statutory context failed ‘ ‘ to point up the prohibited act, either actual or threatened ”. In other words, distinction could not be drawn between “ conduct calculated to harm and that which is essentially innocent ” (4 N Y 2d, at p. 471).

In the Johnson case (supra), however, the statutorily proscribed loitering did not involve public streets but related instead to public school buildings and grounds. Such premises, we declared, were of a “ restricted public nature ’ ’; and the statute prohibiting loitering, when read 1 ‘ in the light of the nature of a school building”, satisfied constitutional requirements (6 N Y 2d, at p. 552).

Similarly, in People v. Bell (supra), where loitering at large on public streets was not at issue, but rather loitering “ about ” railroad or subway facilities, we upheld the constitutionality of the statute. In dealing with a specific facility such as a railroad or subway, the proscribed misconduct was readily ascertainable, and that essentially innocent was excludable from the statutory ambit. We reasoned that the apparent legislative purpose in enacting the statute was “ to prevent persons ” — in particular “ nondescript characters ” and “ degenerates ” — “ from infesting subway, elevated or other railway stations ”. Obviously, a 1 ‘ danger to the public ’ ’ inhered in their presence. The prohibition against “loitering” in that “context”, therefore, “ signif [ied] that persons should not linger about stations under circumstances which fall short of rendering them implied invitees or licensees of the railroad ” (306 N. Y., at pp. 113-114). The statute, and the term loitering in particular, were thus susceptible of definite and clear construction by reference to the statutory context and occasion.

In the case before us we are also dealing with specific facilities. The delineated area, the waterfront, serves the commercial needs of the shippers using its various facilities. Furthermore, it is a known fact that “ evil” conditions have pervaded the waterfront area of New York Harbor (Waterfront Commission Act, Part I, art. I [Findings and Declarations]; see generally Fourth Report of N. Y. State Crime Comm., N. Y. Legis. Doc., 1953, No. 70; Hearings Before Subcommittee No. 3 of the Committee on the Judiciary, H. R. 83d Cong., 1st Sess. [1953] ; Report of New Jersey Law Enforcement Council [1953]). Prominent among these evils was criminal activity, such as loansharking, hook-making, policy and other rackets (see N. Y. Legis. Ann., 1957, pp. 317, 483). In view of these factors, namely, the specification of facilities, their known utility and purpose, and the notoriety of the evils which have pervaded the area, the particular misconduct at which the statute is directed becomes apparent. Loitering in the context here presented is lingering about waterfront facilities for a purpose unconnected with lawful waterfront business or related activity. Constitutional guarantees, therefore, are not offended by the statute. The term loitering, as has been demonstrated, is possessed of sufficient clarity and definition in context.

Defendant’s contention that the provision without a satisfactory explanation” in itself renders the statute vague and indefinite has already been answered completely by our decision in the Bell case (supra). There, in construing the virtually identical phrase contained in the railroad loitering statute, namely, ‘ ‘ who is unable to give satisfactory explanation of his presence ’ ’, we held that it served to restrict the scope of the statute to the advantage of the accused, and its effect was to impose but a procedural condition rather than add a substantive element to the offense (306 N. Y., at p. 115).

Defendant’s final constitutional point is that the provision 1 ‘ within five hundred feet thereof ” also renders the statute fatally “ confounded”. Defendant’s claim appears to be that measuring 500 feet from a vessel, dock, wharf, pier, bulkhead, terminal, warehouse, or other waterfront facility ’ ’ would lead one into the public streets and thoroughfares, and our holding in the Dias case (supra) would, therefore, void the statute.

The People argue that by the 500-foot provision the Legislature intended to regulate 11 a reasonably close area to the pier itself ”. In essence, the provision means nearby ” or in or about” as provided in other loitering statutes (Penal Law, § 722-b [loitering in school buildings; see People v. Johnson, supra]; see, also, Penal Law, § 150, subd. 2; § 1990-a, subd. 2 [railroad loitering; see People v. Bell, supra]; Penal Law, § 722, subd. 8).

We are now, however, called upon to decide only the constitutional impact upon the statute as applied to the facts of this case. ‘ ‘1 Constitutional questions are not to be decided hypothetically ’ ” (People v. Faxlanger, 1 N Y 2d 393, 395; see, also, People v. Terra, 303 N. Y. 332, 334; Waterfront Commission Act, § 11). Here, defendant loitered upon the farm area, within 100 feet of the pier structure itself, and in the Port of New York District. It was not on a public street. This farm area, as previously noted, was used for loading and unloading merchandise, and is now built upon. It, therefore, definitely qualified asa“ waterfront facility ’ ’, one of the expressly enumerated areas of regulation provided in the statute. Accordingly, defendant has no cause for complaint. The mere claim that 500 feet from this waterfront facility there may have been public streets is beside the point, and we may determine such issue when the case arises.

The judgment appealed from should be affirmed.

Chief Judge Desmond and Judges Dye, Fuld, Van Voobhis, Bubke and Fosteb concur.

Judgment affirmed.


author: Chief Judge Desmond.

text:
    Mohegan International Corporation, Appellant, v. City of New York et al., Respondents.
    Argued November 28, 1960;
    decided January 12, 1961.

      Gerald R. Ullrnan for appellant.
    I. The business of appellant as a forwarder is solely interstate and foreign in nature and as such is not subject to a privilege tax by the city. (Railway Express Agency v. Virginia, 347 U. S. 359; Matter of United Air Lines v. Joseph, 282 App. Div. 48, 307 N. Y. 762; Freeman v. Rewit, 329 U. S. 249; Joseph v. Carter & Weekes Co., 330 U. S. 422; Matter of Seeth v. Joseph, 276 App. Div. 188; Matter of Gdynia America Line v. Taylor, 250 App. Div. 105; United States v. American Union Transp., 327 U. S. 437; Thames & Mersey Ins. Co. v. United States, 237 U. S. 19; Ruby S.S. Corp. v. American Merchant Mar. Ins. Co., 224 App. Div. 531; Nippert v. Richmond, 327 U. S. 416.) II. The authorities conclusively establish the exemption of appellant’s business as a forwarder from the gross receipts tax. (McCall v. California, 136 U. S. 104; Texas Transp. Co. v. New Orleans, 264 U. S. 150; Puget Sound Co. v. Tax Comm., 302 U. S. 90; Crew Levick Co. v. Pennsylvania, 245 U. S. 292; Gwin, White & Prince v. Henneford, 305 U. S. 434; Fargo v. Michigan, 121 U. S. 230; McGoldrick v. Gulf Oil Corp., 309 U. S. 414; Northwestern Cement Co. v. Minnesota, 358 U. S. 450; Canton R. R. Co. v. Rogan, 340 U. S. 511; Western Maryland Ry. Co. v. Rogan, 340 U. S. 520.) III. The extent of Federal control over appellant fully demonstrates the interstate and foreign nature of its business. (Spector Motor Serv. v. O’Connor, 340 U. S. 602.) IV. The services rendered by appellant are an integral part of the process of exportation which may not be taxed by the city. (Richfield Oil Corp. v. State Rd., 329 U. S. 69; Fairbank v. United States, 181 U. S. 283; United States v. Hvoslef, 237 U. S. 1; Selliger v. Kentucky, 213 U. S. 200; Brown v. Maryland, 12 Wheat. [25 U. S.] 419; Empresa Siderurgica v. Merced Co., 337 U. S. 154.)

      Charles H. Tenney, Corporation Counsel (Morris L. Heath, Stanley Buchsbaum and Cornelius F. Boche of counsel), for respondents.
    I. The Commerce Clause does not bar the City of New York from taxing appellant’s forwarding receipts, which arose from activities carried on wholly within the city, consisting of services local in nature and constituting a local business subject to State taxation. (Canton R. R. Co. v. Rogan, 340 U. S. 511; Joseph v. Carter & Weekes Co., 330 U. S. 422; Puget Sound Co. v. Tax Comm., 302 U. S. 90; Gwin, White & Prince v. Henneford, 305 U. S. 434.) II. Since appellant does not perform any part of the transportation service proper, or assume any responsibility for it, its services are local in nature and are not protected from State taxation by the Commerce Clause. (United States v. American Union Transp., 327 U. S. 437; Federal Compress Co. v. McLean, 291 U. S. 17; Pennsylvania R. R. Co. v. Knight, 192 U. S. 21; McCall v. California, 136 U. S. 104; Texas Transp. Co. v. New Orleans, 264 U. S. 150; Gwin, White & Prince v. Henneford, 305 U. S. 434; Port of Port Angeles v. Henneford, 193 Wash. 229; Matter of New Yorker Mag. v. Gerosa, 3 N Y 2d 362, 356 U. S. 339; Western Live Stock v. Bureau, 303 U. S. 250.) III. Even assuming that appellant is engaged in foreign commerce, it is also engaged in sufficient local business activity in New York City to justify the imposition of the present tax, which is levied on the privilege of doing business. (Spector Motor Serv. v. O’Connor, 340 U. S. 602; Federal Compress Co. v. McLean, 291 U. S. 17; Ajax Trucking Co. v. Browne, 298 N. Y. 736, 337 U. S. 951; Prudential Ins. Co. v. Benjamin, 328 U. S. 408; Matter of Guardian Life Ins. Co. v. Chapman, 302 N. Y. 226; Matter of Pekao Trading Corp. v. Bragalini, 9 A D 2d 559, 8 N Y 2d 903.) IV. The Import-Export Clause does not bar the tax since appellant’s services as a foreign freight forwarder are performed prior to the arrival of the exported goods at the water’s edge and are not part of the export process. (Canton R. R. Co. v. Rogan, 340 U. S. 511; Western Maryland Ry. Co. v. Rogan, 340 U. S. 520; Empresa Siderurgica v. Merced Co., 337 U. S. 154; Selliger v. Kentucky, 213 U. S. 200.)
   Chief Judge Desmond.

The appeal by plaintiff, on constitutional grounds, is from a unanimous Appellate Division, First Department, affirmance of a summary judgment which dismissed the complaint and declared the New York City General Business and Financial Tax constitutional as applied to plaintiff’s receipts for services in New York City as a “freight forwarder ”, and denied recovery of taxes paid by plaintiff thereon for the year 1956. Plaintiff brought the action to have it declared that the tax (Administrative Code of City of New York, § B46-2.0) is unconstitutional as to plaintiff’s business receipts since, according to plaintiff, it is a tax for the privilege of conducting a business which is interstate and foreign, and an impost on exports (U. S. Const., art. I, § 8, cl. 3; art. I, § 10, cl. 2).

The facts are undisputed. All the receipts taxed are produced by plaintiff’s New York City activities. All the taxed activities are performed at the instance of and on behalf of either domestic exporters or foreign importers and, described most generally, involve services of appellant at New York City in co-ordinating and expediting the movement from inland points to ocean carriers of American-produced goods which are carried by ship to foreign ports.

It is important to keep in mind that the city is not taxing those receipts of plaintiff which are paid by the ocean carriers — that is, the brokerage fees from the carriers for booking the cargoes and for incidental services for acting as a “ foreign freight broker ’ ’. The receipts which are taxed by the city and which plaintiff claims cannot constitutionally be taxed are performed for and paid for by the exporter (or foreign importer) who is moving goods from an inland point to a seaboard point. They are, in other words, services as a “foreign freight forwarder ”. The taxed services are described generally by appellant as those of “an ocean freight forwarder in arranging for the movement of export cargo from an inland supply point across state lines to a foreign destination” and “forwarding of cargo by appellant from an inland point of origin to an overseas destination”. A little overstatement is involved there since appellant, while it books space on the ships and collects and is not taxed on its fee for so doing, never handles these goods at all and has no warehousing, stevedoring or other cargo-handling facilities or functions but performs for the shipper at New York City incidental .services in helping the shipper get his goods to the right New York City pier at the right time. Appellant, of course, is not itself a shipper or exporter or common carrier, has no ownership of or other interest in the goods and never has actual or constructive possession of the goods or responsibility for them. It receives for its ‘ ‘ forwarding ’ ’ services not a commission but a fee based on the time appellant’s employees devote to each shipment. Its annual income (1956) for the forwarding part of its business was about $244,000. Most of its customers are American exporters. A few are overseas consignees.

The details of plaintiff’s operations as a forwarder are set out in the record. As a first step, appellant obtains from the exporter and checks the foreign import license and letter of credit. It advises the exporter as to what port to select for shipment and as to method and time of shipment to that point, then makes a space reservation on a particular vessel after checking its facilities and sailing and destination time. On their movement to seaboard the goods are consigned to appellant and appellant, if necessary, checks on their progress so that they will arrive on time. But appellant does not control or direct the railroad’s operations. It merely obtains information as to where the goods are from time to time. Carload lots usually reach seaboard by railroad and are lightered from New Jersey to a pier or to the ship. Smaller shipments come by motor trucks which carry them directly to the pier. Careful timing of arrival at the pier or ship is necessary so that the ship will not be delayed in sailing or the goods left behind. When necessary, appellant arranges for delivery to the pier or steamer and prepares a dock receipt which the ship’s master signs and which the ocean carrier uses as the basis for its bill of lading when later issued. Appellant prepares that bill of lading, putting the goods into the correct tariff classifications and gets the bill of lading signed at the steamship company’s New York City office. Appellant advances the ocean freight money. It prepares and files at the United States Customs Office the export declaration required by Federal law and arranges for insurance on the goods. Also, it performs other incidental services of the same kind and makes separate charges for some of them and for the printed forms it furnishes. There is in appellant’s brief a sort of suggestion that appellant supervises or checks the loading of the goods onto the ship. However, the complaint does not so allege, there is no proof thereof and the affirmed finding is to the contrary. Appellant’s functions as forwarder, therefore, consist of “ tracing ” the shipment from inland to seaboard so that it will arrive on the pier on time, preparing a number of documents, getting them signed and filed with the Customs House or banks, and obtaining insurance, as agent of the shipper. Appellant, however, is not itself an insurer but a local insurance broker.

We agree with Special Term that all these forwarding activities were local. The cases principally relied on in the Special Term opinion are Canton R. R. Co. v. Rogan and Western Maryland Ry. Co. v. Rogan, both reported in Volume 340 of the United States Reports (pp. 511, 520) and both dealing with the same Maryland State tax. Canton was a railroad company which, operating entirely within the City of Baltimore, performed switching, storage, crane and wharfage services as to g’oods about to be shipped abroad. The Western Maryland Company operated piers in Baltimore and at those piers and at a grain elevator handled and stored goods about to be exported. Respondent says appellant’s services are essentially of the same kind as those held by the- Supreme Court (in Canton and Western Maryland) to be subject to local taxation.

Much of appellant’s brief is taken up by an elaborate showing of the importance and value of appellant’s services, which seems beside the point. The test is whether plaintiff’s local New York City activity is “ ‘ such an integral part of the interstate process, the flow of commerce, that it cannot realistically be separated from it ’ ” (Berkshire Spinning Associates v. City of New York, 5 N Y 2d 347, 354, appeal dsmd. 361 U. S. 3). Plaintiff has been exempted from the tax as to its income derived from acting as agent for the ocean carriers. The tax here is on its local services performed for noncarriers not including any actual transportation services or any responsibility for such service (see discussion as to appellant itself and other forwarders in United States v. American Union Transp., 327 U. S. 437). Appellant’s services are of course connected with and important to foreign commerce but they constitute a local business and are separate from such commerce.

As to this tax violating the Import-Export Clause of the Federal Constitution (as distinguished from the Commerce Clause), the law is that even the handling at the port of goods about to be exported are taxable local activities since the export processes “begin and end at water’s edge” and “ any activity more remote than that does not commence the movement of the commodities abroad nor end their arrival and therefore is not a part of the export or import process ” (Canton R. R. Co. v. Rogan, 340 U. S. 511, 515, supra—-see, also, Western Maryland Ry. Co. v. Rogan, 340 U. S. 520, 522, supra). Appellant is not responsible for loading of the goods and does not have its representative present at that time and place although it must wait until they are loaded before it can tender the letter of credit to the bank.

The judgment appealed from should be affirmed, with costs.

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

Judgment affirmed.


author: Per Curiam.

text:
    The People of the State of New York, Respondent, v. Albert Shenandoah, Appellant.
    Argued November 16, 1960;
    decided January 12, 1961.

      D. Charles O’Brien for appellant.
    I. The Court of Special Sessions was without jurisdiction in that the alleged information was defective as a matter of law. (People v. James, 4 N Y 2d 482; People v. Scott, 3 N Y 2d 148.) II. Defendant was deprived of his constitutional and statutory rights to counsel on arraignment. (People v. Banner, 5 N Y 2d 109; People v. Marincic, 2 N Y 2d 181; People v. Palmer, 296 N. Y. 324; People v. McLaughlin, 291 N. Y. 480.) III. It was error for the County Court to consider the so-called supplemental return.

      Arthur W. Wilson, District Attorney (Barry B. Hill of counsel), for respondent.
    I. The Court of Special Sessions had jurisdiction because the information was sufficient as a matter of law. (People v. James, 4 N Y 2d 482; People v. O’Neil, 303 N. Y. 747; People v. Bertram, 302 N. Y. 526; People v. Belcher, 302 N. Y. 529; People ex rel. Livingston v. Wyatt, 186 N. Y. 383; People v. Chambers, 189 Misc. 502; People v. Banner, 5 Misc 2d 355; People v. Scott, 3 N Y 2d 148; People v. Brous, 296 N. Y. 1028.) II. Defendant was duly advised of his right to counsel and to an adjournment to procure counsel as required by the provisions of the Code of Criminal Procedure. (People v. Marincic, 2 N Y 2d 181; People v. Palmer, 296 N. Y. 324.) III. The County Court had authority to request and consider a supplemental return. IV. An appellate court must accept a return and a further or amended return as conclusive of the facts stated therein. (People v. Chambers, 189 Misc. 502; People v. Mason, 307 N. Y. 570; People v. Jenkins, 21 Misc 2d 267; People v. Barbano, 10 Misc 2d 847; People v. Freer, 171 Misc. 478; People v. Scutt, 160 Misc. 25; People v. Decker, 156 Misc. 156; People v. Helmes, 144 Misc. 695; People v. Newman, 137 Misc. 267.)
   Per Curiam.

Defendant, a 17-year-old boy, who had never had any difficulty with the police, was arrested at his home at 4 o’clock in the morning for an alleged $12 theft, and removed to the home of the Justice of the Peace, where an alleged confession was elicited from him immediately prior to his arraignment, which confession was sworn to before the Justice. A guilty plea was then taken from him, and he was sentenced forthwith to the penitentiary. This was so gross a violation of his fundamental rights as to require a reversal. Furthermore, the County Court should not have taken the supplemental return after argument of the appeal without notice to appellant’s counsel.

The judgment appealed from should be reversed, the judgment of conviction set aside, and the case remanded to the court of original jurisdiction for arraignment and further proceedings.

Chief Judge Desmond and Judges Dye, Fuld, Fboessel, Van Voobhis, Burke and Fosteb concur.

Judgment reversed and matter remitted for further proceedings in accordance with the opinion herein.