author: Dye, J.

text:
    The People of the State of New York ex rel. Frank Guido, Respondent, v. Harold Calkins, as Sheriff of the County of Schenectady, Appellant.
    Argued December 1, 1960;
    decided January 19, 1961.

      Morris Marshall Cohn, District Attorney, for appellant.
    I. Habeas corpus may not be used as a subterfuge for appeal unless there is a total lack of jurisdiction. (Matter of Morhous v. Supreme Court, 293 N. Y. 131; People ex rel. Farina v. Klein, 2 A D 2d 777; People ex rel. Schildhaus v. Dros, 14 Misc 2d 126; People ex rel. Livingston v. Wyatt, 186 N. Y. 383.) II. The information clearly and definitely charges defendant with the commission of a designated crime. (People v. Grogan, 260 N. Y. 138; People v. Tower, 63 Hun 624, 135 N. Y. 457.) III. An information may be amended at any time before trial. (People v. Geyer, 196 N. Y. 364.) IV. The information charges the offense from positive knowledge and is not based on hearsay. (People v. James, 4 N Y 2d 482; People v. Zeigler, 144 Misc. 803.)

      Joseph Karris for respondent.
    I. An information is the basis of a Magistrate’s jurisdiction in misdemeanor prosecutions. Where the information is defective, the court is without jurisdiction and all proceedings therein are a nullity, attackable by habeas corpus. (People ex rel. Livingston v. Wyatt, 186 N. Y. 383; People v. Scott, 3 N Y 2d 148; People v. James, 4 N Y 2d 482; People v. James, 11 App. Div. 609.) II. The original information failed to state a crime in that it made reference merely to a single moment of time rather than to a course of action, thus presenting merely an allegation of 1 ‘ casual gambling ’ ’, which cannot constitute the crime of common gambling. (People v. Bright, 203 N. Y. 73; Watts v. Malatesta, 262 N. Y. 80.) III. Herman Ricken, the only person by virtue of whose acts relator could be tied in with as a principal under section 2 of the Penal Law, was charged with, and pleaded guilty to, violations of sections 973, 974 and 986 and, thus, relator, if a principal at all, would have to be a principal to violations of sections 973, 974 or 986, but not to section 970. IV. The original information, and the “amended” information, set forth mere naked conclusions of law, without setting forth, as is necessary, the particular act or acts constituting the crime. (People v. Zambounis, 251 N. Y. 94; People v. Grogan, 260 N. Y. 138; People v. Schultz, 301 N. Y. 495; People v. Koffroth, 2 N Y 2d 807.) V. The “amendment” to the information was more than a mere technical change; it alleged a new and separate crime; it was not made under oath and did not reveal the source of its allegations. Thus, it constituted mere hearsay. (People v. Jacoby, 304 N. Y. 33; People v. Scott, 3 N Y 2d 148; People v. James, 4 N Y 2d 482.) VI. Defendant was never arraigned on the second or “ amended ” information. This is a jurisdictional defect and cannot be waived. Accordingly, the court had no right, power or jurisdiction to try defendant for the charge of which he was subsequently found guilty.
   Dye, J.

This appeal comes to us as of right from an order of the Appellate Division, Third Department, which reversed, “ on the law alone ”, the Schenectady County Court’s order dismissing a writ of habeas corpus, and sustained the writ.

The relator, Frank Guido, was arraigned in Schenectady Police Court on an information, sworn to by a member of the Schenectady Police Department, charging that he knowingly committed the crime of Common Gambler in violation of section 970 of the Penal Law “ in that he did on the aforesaid date, at about 3:45 P.M. at the premises known as 813 Albany Street, in the City of Schenectady, N. Y., aid and abet in the operation of a gambling establishment known as the Albany Street Card Shop ? ”. The defendant at all times was represented by counsel of his own choosing.

The case was then set down for a jury trial in the Police Court on June 23, 1958. On that date, the District Attorney moved to amend the information to include ‘ ‘ that on the aforesaid date, at about three forty-five p.m. and for sometime prior thereto, at the premises known as eight thirteen Albany Street in the City of Schenectady, New York, he did aid and abet in the operation of a gambling establishment” (amendment italicized). The motion was granted, over objection, and the trial was adjourned for a month to overcome any element of surprise.

Subsequently, the relator was tried and found guilty, and a sentence of six months in the County Jail and $500 fine was imposed. He later filed a timely notice of appeal. He did not prosecute the appeal, however, and it was dismissed on motion for failure to perfect (Code Grim. Pro., § 751). Five days after the conviction and sentencing, the defendant also applied for and obtained a writ of habeas corpus, claiming that the court lacked jurisdiction to try the case because the information on which it acted failed to state a crime. It is the relator’s contention that the information refers to a single occasion rather than to a continuing course of action, and thus alleges only “casual”, and not “common”, gambling. This is without merit since clearly respondent was not charged with partaking in gambling himself, and that is the only time the distinction between the “casual” and the “common” gambler has any significance (cf. People v. Bright, 203 N. Y. 73). Maintenance of a gambling house is a crime even if it occurs on only one occasion, as is here alleged (Hitchins v. People, 39 N. Y. 454).

The relator further contends that, since Herman Bicken, the person whom the relator allegedly “ aided and abetted ”, was charged with violating sections 973, 974 and 986 of the Penal Law, no person violated section 970, and, hence, the relator could not properly be found guilty of having “ aided and abetted” in violation of section 970. This contention must also fail. By virtue of section 2 of the Penal Law, one who ‘1 aids and abets ’ ’ in the commission of a crime is himself a principal and, under the rule of People v. Kief (126 N. Y. 661), can be prosecuted even if another principal has already been acquitted. A fortiori, the same is true where there has been no prior acquittal.

We turn now to the relator’s principal contention that the information is insufficient because it merely repeats the statutory words in charging that he did ‘ aid and abet in the operation of a gambling establishment ”, without setting forth the accusation in factual detail.

People v. Zambounis (251 N. Y. 94) and People v. Koffroth (2 N Y 2d 807), cases upon which relator relies, both dealt with obscenity. There we held that the obscene matters were not sufficiently identified, and that the informations stated mere conclusions. But it is commonly understood that, among the different crimes which exist under our laws, the degree of definiteness appropriate to put the defendant on notice may vary according to the necessities inherent in the particular crime charged. This means that in certain instances, such as the one now before us, an allegation that closely follows the words of the statute need not, as a matter of law, be deemed insufficient. The statute may itself be enough detailed in describing the crime that more may be either unnecessary or even impossible. Thus, in the instant case, the information charged that this relator did ‘ ‘ aid and abet in the operation ” of a specific gambling establishment at a specific time. Although the exact means of assistance were not set forth in specific detail, in a setting such as this an information that sets forth the ultimate facts to be proven, as opposed to mere conclusions of law, need not also set forth the underlying evidentiary facts.

Relator has urged that the information fails to set forth a crime, because the casual player, as well as the common gambler, may be said to “ aid and abet in the operation of a gambling establishment”. (Cf. People v. Bright, supra.) But it is not reasonable to assume that one charged with “ aiding and abótting” is accused only of engaging in casual play, especially when that assumption is aimed at inhibiting an information to the extent that the court is deprived of jurisdiction. The two are mutually exclusive. In this view we have no difficulty in holding that the within information states a crime (cf. People v. Yachelson, 307 N. Y. 625).

We note that, if a defendant under such an information is merely a casual player, this fact is always available on the trial as a defense.

The addition of the words 1 and for sometime prior thereto ’ ’, by way of an amendment on motion of the District Attorney, did not prejudice this defendant. The amendment did not change the nature of the crime charged, but only extended the time within which its commission could be established (Hitchins v. People, supra). If there was any element of prejudice due to surprise, it was sufficiently cured by the one-month adjournment (Code Crim. Pro., § 293; People v. Geyer, 196 N. Y. 364).

For these reasons the order of the Schenectady County Court disallowing and dismissing the writ of habeas corpus was properly made, since the information was sufficient to give the Police Court Justice of Schenectady jurisdiction of the defendant.

The order of the Appellate Division should be reversed and that of the County Court, dismissing the writ of habeas corpus, should be reinstated.

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

Order reversed, etc.


source: Caselaw Access Project

author: Foster, J.

license: Public Domain

text:
    The People of the State of New York, Respondent, v. William James, Also Known as James Williams, Appellant.
    Argued October 13, 1960;
    decided January 19, 1961.

      William A. Argentieri for appellant.
    I. Defendant was not adequately advised of right of counsel. (Matter of Mantell, 157 Neb. 900; People ex rel. Cohen v. Brown, 278 App. Div. 576; People v. Harris, 132 Misc. 741; Johnson v. Zerbst, 304 U. S. 458; Glasser v. United States, 315 U. S. 60; People ex rel. Sedlak v. Foster, 274 App. Div. 850, 299 N. Y. 291.) II. Use of self incriminatory evidence was improper. (People v. Lewis, 260 N. Y. 171; People v. Morett, 272 App. Div. 96; People v. Schindler, 124 Misc. 73; People v. Shannon, 1 A D 2d 226.) III. There was lack of proof and improper evidence. (Jones v. Commonwealth, 185 Va. 335; People v. Pikunas, 260 N. Y. 72; People v. Fitzgerald, 244 N. Y. 307.) IV. The charge was vague and indefinite. (People v. Rosenkrantz, 123 Misc. 335; Wood v. People, 53 N. Y. 511; People ex rel. Deordio v. Palmer, 230 App. Div. 397; People ex rel. Peltz v. Brewster, 232 App. Div. 1.)

      Frank S. Hogan, District Attorney {Daniel J. Sullivan and Charles W. Manning of counsel), for respondent.
    I. The wayAvard minor status of appellant was established by a preponderance of the evidence. (People v. Lewis, 260 N. Y. 171, 289 U. S. 709; People ex rel. Cohen v. Brown, 278 App. Div. 576.) II. The complaint was sufficient. (People v. Farson, 244 N. Y. 413; People v. Williams, 243 N. Y. 162; People v. Reiser, 240 App. Div. 36.) III. Appellant received a fair hearing. IV. Appellant was not deprived of any constitutional rights by the hearing court. (Pee v. United States, 274 F. 2d 556.)
   Foster, J.

After a hearing in the City Magistrates’ Court of the City of New York, Adolescent Part, the defendant William James, 16 years of age, was adjudicated a “ wayward minor ” and committed to Elmira Deception Center for an indeterminate period. The Appellate Part of the Court of Special Sessions, First Department, has affirmed. Defendant is here by permission.

Section 913-a of the Code of Criminal Procedure provides in part: “ § 913-a. Wayward Minor. Any person between the ages of sixteen and twenty-one who * * * (5) is wilfully disobedient . to the reasonable and lawful commands of parent, guardian or other custodian and is morally depraved or is in danger of becoming morally depraved * * * may be deemed a wayward minor.”

The complaint was made by Elizabeth Long, the mother of the defendant, with the aid of the Probation Department of the Adolescent Part of the Magistrates’ Court. It alleged in substance that defendant, then a minor 16 years of age, was disobedient, associated with people of questionable character, refused to attend school, indulged in intoxication on several occasions, and generally was in danger of becoming morally depraved.

Defendant was brought before the City Magistrates’ Court for arraignment and the following passage appears in the minutes of the arraignment:

“ Court Officer : Now, on these charges, you have a right to the aid of counsel at every' stage of the proceedings and before any further proceeding, and the right to an adjournment to procure counsel.

“ The Court: Now, young man, there is a formal charge against you. I won’t have an immediate hearing on it because I think maybe Mr. Yucalis can persuade you that you have been going the wrong way. I mean, if you feel that is the right thing, Mr. Yucalis, I’ll be willing to go along.”

Defendant was then placed on probation on condition of good behavior, but some two months later, at the request of complainant and the Probation Department, a trial was had before another Magistrate. Judgment was rendered and sentence was imposed on the same day.

According to the testimony of complainant, she and the boy’s father had been divorced about five and one-half years prior to the trial. Defendant was living with her and his sister. The father, a merchant seaman, was away at sea and was not present at the trial. She also testified that she had been having trouble with the defendant for about four or five years. The previous year, she had sent him to boarding school. He did not abide by the rules and remained for only two months. Next, he was sent to Goshen School, Goshen, New York, where he did not apply himself to his studies and became a behavior problem. In June, 1958, after one term, he left the school without permission. Thereafter, complainant enrolled him in public school,, but he would not attend. Several transfers from school to school were made by school officials to induce defendant to attend, but eventually they decided they could do nothing with him.

Since his return from Goshen, complainant testified, defendant had been staying out continuously until 2:00 or 3:00 a.m. Almost every night she smelled alcohol on his breath, but defendant would deny that he had been drinking. On three or four occasions, defendant held parties in the family home. She said she would see evidence of this. Finally, she testified, that the defendant was impudent to her and there was absolutely nothing she could do with him.

Although defendant had been advised when first arraigned that he had the right to the aid of counsel, nothing further was said about this at the trial, where the following exchange occurred between the court and defendant:

‘1 The Court : Do you want to ask your mother any questions or do you want to say something?
“ William James: No. I’d just like to say —
The Court : You will have to be sworn first.
“ William James, residing at 408 West 130th Street, having been first duly sworn, testified as follows:
By the Court: Q. What do you want to say? ”

Defendant then testified that when he stayed out until 2:00 or 3:00 a.m. it usually was on week ends, or in the Summertime, and that he told his mother where he was going. She merely would say Don’t come in too late.” At Goshen, several classmates had' attempted to 1 ‘ boss ’ ’ him, and fights resulted. He was embarrassed to attend public school in New York because he was in a lower grade than others of his age. He admitted to intoxication on two occasions. Defendant was also asked about his presidency at various times of three notorious New York City gangs which, in the absence of defendant, had engaged in a gang war resulting in the death of three youths. He answered that when he joined three years before they merely were clubs but that he quit after the deaths occurred. The court then imposed the indeterminate reformatory term.

Defendant contends upon this appeal that he was entitled to counsel, and not adequately advised of his right thereto and that his constitutional rights were violated when he was sworn as a witness without being advised of his privilege against self incrimination. J The People urge that defendant was not charged with a crime and hence the procedural safeguards prescribed by constitutional and statutory provisions in criminal cases are not applicable here, citing People v. Leivis (260 N. Y. 171, 174) as an authority for this proposition. In that case the defendant, who was under 16 years of age, was charged with being a juvenile delinquent under the Children’s Court Act (L. 1930, ch. 393). A hearing was held in Children’s Court at which the alleged delinquent appeared, accompanied by his mother, sister, and the family clergyman. The basic charge, the theft of money, was admitted by the boy; indeed there was no dispute whatever about the facts. The boy was thereafter adjudged a delinquent and committed to the State Industrial and Agricultural School at Industry, New York. This court held that the proceeding was not a criminal one, and ‘ ‘ there was neither right to nor necessity for the procedural safeguards prescribed by constitution and statute in criminal cases.” (People v. Leivis, supra, p. 177.) ■

The statute involved in the Lewis case and the statute involved here are similar in their essential provisions (Children’s Court Act, § 2, subd. 2, cl. [b]; § 6, subd. 1, cl. [b]; § 22, subds. [b], [c]; cf. Code Grim. Pro. § 913-a, cl. [5]; §§ 913-b, 913-c). Both provide that an adjudication shall not constitute a criminal conviction (Children’s Court Act, § 45; cf. Code Grim. Pro., § 913-dd). For these reasons the People urge that the doctrine asserted in the Leivis case bars any relief to the defendant here on the ground that his constitutional and statutory rights were disregarded.

While superficially the cases may appear to be in parity, there are distinctions which we think are not without significance when considered as a whole. In the Lewis case (supra) the proceeding was in Children’s Court, and the alleged delinquent had whatever benefit there was to be derived from the presence of his mother, sister and a sympathetic clergyman. It was not an adversary proceeding in the sense that cross-examination was called for because there was no dispute as to the facts. In the case here the proceeding was governed by the Code of Criminal Procedure and was instituted in a court of criminal jurisdiction, albeit the Adolescent Part. The complainant was the defendant’s mother, and there was acrimony and open hostility between them. He appeared at the hearing without the aid of counsel, friend, relative or parent. It was an adversary proceeding in that the testimony of the mother and son conflicted in several respects as heretofore indicated.

It is not our function of course to weigh testimony in a proceeding of this character but the disagreements expressed between the mother and son seem to have been material. Two occasions of intoxication, for instance, would not necessarily render one a wayward minor (Code Crim. Pro., § 913-a, cl. [1]; People v. Pikunas, 260 N. Y. 72, 74). Defendant also claimed that he was not willfully disobedient; that he sought and obtained permission to attend late parties. Elementary principles of justice would seem to require that in this situation the testimony of the mother should have been tested by some form of cross-examination before the defendant minor was deprived of his liberty. This problem never arose in the Lewis case (supra) where the facts were not disputed. Here, also, evidence of the defendant’s conduct prior to his sixteenth birthday may have been admitted improperly (People ex rel. Cohen v. Brown, 278 App. Div. 576). Regardless of the technical classification of the proceeding, and there is some ground for the assertion that it was criminal in nature (Matter of Ryan [Hogan], 306 N. Y. 11, 17-18; Matter of Clausi, 296 N. Y. 354, 356; People ex rel. Stolofsky v. Superintendent, 259 N. Y. 115), the rights of the defendant minor were not adequately protected without the aid of counsel. We have no doubt that the trial court acted with the best of motives but that is not a substitute for the principle involved. In the view thus taken, we find it unnecessary to re-examine the doctrine announced in the Lewis case, as counsel for the defendant requests. Suffice it to say that such doctrine should not be applied to the proceeding here under the circumstances disclosed.

The judgment should be reversed and the proceeding remitted for a new hearing.

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

Judgment reversed and a new hearing ordered.


author: Burke, J.

text:
    In the Matter of the Construction of the Will of John J. Larkin, Deceased. Myrtle V. Larkin, Respondent; John V. Larkin, Jr., an Infant, by Manley H. Thaler, His Special Guardian, Appellant.
    Argued November 30, 1960;
    decided January 19, 1961.

      Manley H. Thaler, special guardian for John V. Larkin, Jr., infant, appellant.
    I. The interest of the remainderman at the death of testator was vested subject to being divested if he died prior to the death of the life tenant. (Matter of Buechner, 226 N. Y. 440; Matter of Gautier, 3 N Y 2d 502; Matter of Fabbri, 2 N Y 2d 236; Matter of Robinson, 155 Misc. 412; Dougherty v. Thompson, 167 N. Y. 472; Matter of Englis, 2 N Y 2d 395.) II. Assuming that the remainder interest did vest, it was not indef easibly vested in the remainderman. (Matter of New York, L. & W. Ry. Co., 105 N. Y. 89; Matter of Farmers’ Loan & Trust Co., 189 N. Y. 202; Lyons v. Ostrander, 167 N. Y. 135; McLean v. McLean, 207 N. Y. 365; Matter of Krooss, 302 N. Y. 424.) III. The interest of the remainderman was vested subject to being divested upon his failing to survive the life tenant and beneficiary. (Matter of Krooss, 302 N. Y. 424; Lyons v. Ostrander, 167 N. Y. 135; Matter of Bigelow, 285 App. Div. 1072; Matter of Buttner, 243 N. Y. 1; Van Nostrand v. Moore, 52 N. Y. 12; Matter of Thompson, 218 App. Div. 130; Matter of “ Ostem ”, 11 Misc 2d 179; Tillman v. Ogren, 227 N. Y. 495.)

      Thomas J. Flynn for respondent.
    John V. Larkin, Sr., had an indef easibly vested interest as a remainderman under paragraphs Third and Fourth of the will of John J. Larkin, deceased, the testator, upon the death of said testator. (Connelly v. O’Brien, 166 N. Y. 406; Matter of Embree, 9 App. Div. 602, 154 N. Y. 778; Matter of Ralph, 91 Misc. 373, 175 App. Div. 906; Vanderpoel v. Burke, 63 Misc. 545; Matter of Buechner, 226 N. Y. 440; Moore v. Lyons, 25 Wend. 119; Matter of O’Dell, 124 Misc. 76; Washbon v. Cope, 144 N. Y. 287; Vanderzee v. Slingerland, 103 N. Y. 47; Stokes v. Weston, 142 N. Y. 433; Mullarky v. Sullivan, 136 N. Y. 227; Matter of Tienken, 131 N. Y. 391; Dunkel v. Homindustries, 275 N. Y. 327; Matter of Goetz, 177 Misc. 906.)
   Burke, J.

The question is whether, in regard to the trust provisions of the last will and testament of John J. Larkin, the eleventh paragraph is to be construed as mere surplusage or as a substitutionary gift (to the descendants of a remainderman) conditioned upon the death of a remainderman during the enjoyment of the life estate (i.e., subsequent to the death of the testator). Stated another way—was the remainder interest of John V. Larkin indef easibly vested at the death of the testator so that it would pass to his wife under his will, rather than to his descendants as a substitutional gift under the will of his father, the testator.

The Surrogate held that the remainderman’s interest was divested by his death, and his share passed, therefore, under paragraph Eleventh, to his children. The Appellate Division reversed, holding, inter alia, that the trust paragraphs were complete without recourse to any other part of the will ”, and that paragraph Eleventh was in effect, therefore, mere surplusage.

We agree with the Surrogate. It was the testator’s manifest intention that there should be a gift over to the descendants of the remaindermen in the event that the remaindermen were not living at the time of distribution, i.e., death of the life tenant.

Decedent, John J. Larkin, died in 1938, survived by his widow, Catherine, and three sons, John V., Sr., Leo P., and Edward F. His will provided, in pertinent part:

‘ ‘ Third : I give, devise and bequeath to my beloved wife, Catherine E. Larkin, the use and enjoyment during the term of her natural life of the residence premises whereon we reside at the time of my decease, and also of the furnishings in the residence thereon; I give, devise and bequeath said residence property and the furnishings in the residence thereon, at the death of my said wife, Catherine E. Larkin, to my three sons, Leo P. Larkin, John V. Larkin and Edward F. Larkin, share and share alike.” (Emphasis supplied.)

‘ ‘ Fourth : I give and bequeath to my trustees hereinafter named securities of the value of Twenty Thousand Dollars ($20,000.00) owned by me at the time of my death, or such sum in cash, in trust nevertheless, to hold, invest, reinvest and keep invested in such securities as to them seem most advisable, and to pay over the income therefrom, and profits thereon to my beloved wife, Catherine E. Larkin, from time to time, so long as she shall live. At her death, my said trustees shall divide the securities and balance then remaining in their hands, as trustees, in the proportion of Twelve Thousand Five Hundred Dollars ($12,500.00) to John V. Larkin and Seven Thousand and Five Hundred Dollars to Leo P. Larkin. ’ ’ (Emphasis supplied.)

“ Eleventh : In the event that any of my said sons should die leaving descendants, said descendants shall take the share of any such deceased son, per stirpes and not per capita.

“ Lastly : I hereby constitute and appoint my sons, John V. Larkin and Leo P. Larkin, both of Ithaca, New York, executors of this my last Will and Testament and trustees of the trusts hereinabove set out ”. (Emphasis supplied.) Except for a $1,000 charitable bequest, the other dispositive paragraphs provided for absolute gifts to his sons.

Remainderman, John V., Sr., died in 1954, prior to the death of the life tenant, his mother, survived by his widow and three children, one of whom is represented by the special guardian-appellant here. Under the terms of his will he bequeathed his entire estate to his widow, respondent in this action.

It is very significant that paragraphs Third and Fourth, when considered together with paragraph Eleventh as they should be, cannot be construed as using words of an absolute gift in regard to the remaindermen. The interests in the estates thus created could only be conveyed conditionally, namely, subject to divestment should the sons predecease their mother.

The Appellate Division’s interpretation is at variance with the authorities. It is fundamental that “ [w]ords are never to be rejected as meaningless or repugnant if by any reasonable construction they may be made consistent and significant.” (Matter of Buechner, 226 N. Y. 440, 443.) Equally basic is that the prime consideration of all construction proceedings is the intention of the testator as expressed in the will. All canons of construction are subordinate to this consideration. If the testator’s intention is not clear then it “ must be gleaned not from a single word or phrase but from a sympathetic reading of the will as an entirety and in view of all the facts and circumstances under which the provisions of the will were framed.” (Matter of Fabbri, 2 N Y 2d 236, 240, emphasis supplied; Matter of Gautier, 3 N Y 2d 502, 509.) If a reading of the entire will reveals a “ dominant purpose or plan of distribution ”, the individual parts must be interpreted in the light of that purpose, and be given effect accordingly, despite the fact that a literal reading might yield an inconsistent meaning because of the language or format employed. (Matter of Fabbri, supra, p. 240; Roe v. Vingut, 117 N. Y. 204, 212; Haug v. Schumacher, 166 N. Y. 506; Williams v. Jones, 166 N. Y. 522, 533.)

In onr opinion, a reading of this will indicates that testator intended that the bulk of his estate be distributed to, and enjoyed by, his direct descendants, and provided, therefore, substitute lineal beneficiaries in the event that his sons did not survive at the time of distribution, whenever that may be. For example, if paragraph Eleventh, which immediately precedes the clause containing the designation of the trustees, is read in conjunction with the absolute bequests of the other paragraphs, it would naturally mean at the time of death of the testator. "Whereas, when read in regard to the trust provisions, it means at the death of the life tenant.

This is not, as the Appellate Division concluded, ascribing two meanings to the same language. It is a construction which attributes significance to the words employed, and is consistent in its application to all bequests, be they absolute or in trust (see Matter of Buechner, supra), as well as consonant with the canons of construction, with which we will now deal.

It has been stated that, apart from the rule as to intention which is of paramount importance, heirs of the blood should be preferred to strangers (Matter of Robinson, 155 Misc. 412, 415; see, also, Matter of Englis, 2 N Y 2d 395, 401); and this presumption prevails in favor of descendants as against collaterals (see Matter of Englis, supra, p. 401; March v. March, 186 N. Y. 99; 7 Warren’s Heaton, Surrogates’ Courts, ch. VI, Construction of Wills, § 21, p. 171). In the March case, one of the testator’s sons died subsequent to the testator, but prior to distribution. The court held that his share was divested by his death and was payable, therefore, to his child (descendant) rather than to his devisee or legatee.

Secondly, it is quite correct that ordinarily, where there is a devise or bequest to one person and in case of his death to another, it is to be construed as referring to death in the lifetime of the testator. However, the Appellate Division did not go far enough. £ ‘ There is * * * a qualification, or, more properly speaking, an addition to this rule which is equally well established, and this seems to have been overlooked by the learned [court below] ” (Lyons v. Ostrander, 167 N. Y. 135, 138, emphasis and brackets supplied; Matter of Farmers’ Loan & Trust Co., 189 N. Y. 202, 207; McLean v. McLean, 207 N. Y. 365, 376; 7 Warren’s Heaton, Surrogates’ Courts, § 78, par. 4, p. 526). “ As eases very like the present demonstrate, absent language pointing a contrary intention, words of survivorship refer to the time of the testator’s death ‘ only in the case of an absolute devise or bequest to one and in case of his death .to another ’; they carry no such implication where, as in the will under consideration, the first devisee or legatee takes a life estate. (Mullarky v. Sullivan, 136 N. Y. 227, 231; see, also, Matter of Parsons, 242 N. Y. 246, 250; Matter of Buechner, 226 N. Y. 440; Matter of Palis, 220 N. Y. 196, 204; Lyons v. Ostrander, 167 N. Y. 135, 140; Restatement, Property, § 251, p. 1266.) ” (Matter of Gautier, 3 N Y 2d 502, 508, supra.)

In this light it can be seen that the presumptions and rules of construction fortify the Surrogate’s ruling that the testator intended to benefit his descendants at the time of distribution.

It seems that the Appellate Division felt its decision was required because, inter alia, of the “ familiar canon of construction in favor of vesting ’ ’. Although we agree that the canon may be applied in case of doubt (Walsh, Law of Property, § 246, Rules of Construction, et seq.; however, see § 253), it makes no difference in this situation. No such construction mandates that the property be indefeasibly or absolutely vested. The cases are numerous wherein the courts have held that the language, such as that used by the testator here, or language substantially identical, creates a vested remainder in fee subject to be divested by the remainderman’s failing to survive the life beneficiary ” if the remainderman leaves descendants surviving (emphasis supplied; Matter of Krooss, 302 N. Y. 424, 429, and cases cited therein). In the latter event the children take by substitution (Lyons v. Ostrander, supra; Matter of Bigelow, 285 App. Div. 1072). Since the remainderman here failed to survive the life tenant, his “ descendants [should] take the share * * * per stirpes ”.

Accordingly, the order of the Appellate Division should be reversed, ánd the decree of the Surrogate’s Court reinstated, with costs to both parties payable out of the estate.

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

Order reversed, etc.


author: Burke, J. (concurring).

text:
    Ida J. Vernon et al., Respondents, v. Sarra, Inc., Appellant, and Manufacturers Trust Company, as Successor Committee of the Property of Ethel J. Quin, an Incompetent Person, et al., Respondents. Sarra, Inc., Third-Party Plaintiff-Appellant, v. Manufacturers Trust Company, Third-Party Defendant-Respondent.
    Argued October 17, 1960;
    reargued January 4, 1961;
    decided January 19, 1961.

      G. Joseph Danahy, John Wheeler and Harold Alpert for appellant.
    I. The text, context and purpose of section 1377 of the Civil Practice Act reveal that it exists solely for the benefit of the incompetent. (Heath v. Hewitt, 127 N. Y. 166; Moore v. Littel, 41 N. Y. 66; Cushman v. Horton, 59 N. Y. 149; 39 Cortlandt St. Corp. v. Lambert, 209 App. Div. 575; Matter of Trapasso Oldsmobile [Italian Soc.], 2 A D 2d 166, 4 N Y 2d 133; Parthey v. Beyer, 228 App. Div. 308; Matter of City of New York [110th St.], 81 App. Div. 27.) II. The decision of the courts below contain a logical inconsistency in that if lease number three is invalid there is no impediment to lease number four. III. If plaintiffs’ motion for summary judgment is granted, then summary judgment should also be granted in favor of defendant, third-party plaintiff, Sarra, Inc., against Manufacturers Trust Company individually, third-party defendant. (Matter of Otis, 101 N. Y. 580; Matter of Granger, 179 Misc. 188; Butler v. Jarvis, 51 Hun 248; Hartwell v. Riley, 47 App. Div. 154; Rooney v. People’s Trust Go., 61 Misc. 159.)
    On reargument: I. Court approval is not required under section 1377 of the Civil Practice Act for a lease for a five-year period made and signed some time before the date the term is to commence. (Wood v. Hubbell, 10 N. Y. 479; Sanderson v. City of Scranton, 105 Pa. 469; Taylor v. Terry, 71 Cal. 46; Paulton v. Kreiser, 18 S. D. 487; Young v. Dake, 5 N. Y. 463.) II. The provision of paragraph 38 of the 1958 lease does not invalidate this lease. (Bovin v. Galitzka, 250 N. Y. 228; Christopher v. Austin, 11 N. Y. 216; Fifth Ave. Bldg. Co. v. Kernochan, 221 N. Y. 370.)

      Herman M. Glassner, Howard N. Gorham, Lilburn S. Rogers and Stephen A. Carb for respondents.
    I. A committee of an incompetent has no authority to act with respect to the real property of an incompetent except that conferred by statute or by court order. (Sporza v. German Sav. Bank, 192 N. Y. 8; Pharis v. Gere, 110 N. Y. 336; Matter of Otis, 101 N. Y. 580; Scribner v. Young, 111 App. Div. 814; Matter of Merritt, 278 N. Y. 74.) II. The first extension and the second extension are each void ab initio. (Matter of James, 261 App. Div. 480; 39 Cortlandt St. Corp. v. Lambert, 209 App. Div. 575; Matter of Trapasso Oldsmobile [Italian Soc.], 2 A D 2d 166, 4 N Y 2d 133; Parthey v. Beyer, 228 App. Div. 308; Matter of Burstein, 153 Misc. 515; Matter of Collins, 158 Misc. 798; Matter of Merrill, 165 Misc. 161; Matter of Baker, 164 Misc. 92; Youngman v. New York Ind. Co., 120 Misc. 687; City Bank Farmers Trust Co. v. Smith, 264 N. Y. 396.)
    On reargument: I. Section 1377 of the Civil Practice Act provides a five-year period as the extreme period of time that a committee may lease its ward’s property without court approval. (Young v. Dake, 5 N. Y. 463; People v. Ryan, 274 N. Y. 149; Matter of Trapasso Oldsmobile [Italian Soc.], 2 A D 2d 166, 4 N Y 2d 133; 39 Cortlandt St. Corp. v. Lambert, 209 App. Div. 575; Clark, v. Barnes, 76 N. Y. 301.) II. The language contained in the provision of the 1958 lease makes that lease invalid since it is for a term longer than five years and court approval was not obtained for it.

      N. Holmes Glare for Darwin E. James, IV, respondent.
    I. The two leases were for.terms of more than five years within the meaning of section 1377 of the Civil Practice Act and hence beyond the power of the committee to make. (Matter of Strasburger, 132 N. Y. 128; Matter of Merritt, 278 N. Y. 74; 39 Cortlandt St. Corp. v. Lambert, 209 App. Div. 575; Matter of Trapasso Oldsmobile [Italian Soc.], 2 A D 2d 166, 4 N Y 2d 133.) II. There has been no ratification or validation of the lease dated June 26, 1958. (Matter of O’Donnell, 240 N. Y. 99.)
    On reargument: I. Section 1377 of the Civil Practice Act requires court approval if the occupancy term is for a five-year period and the lease is made and signed some time before the date the occupancy term is to commence. (39 Cortlandt St. Corp. v. Lambert, 209 App. Div. 575; Young v. Dake, 5 N. Y. 463; Matter of Trapasso Oldsmobile [Italian Soc.], 2 A D 2d 166, 4 N Y 2d 133.) II. The provisions of the 1958 lease make the lease invalid as the term is for longer than five years and no court approval was obtained. (Flynn v. Prudential Ins. Co., 207 N. Y. 315.)

      Rolon W. Reed and William D. Gonwell for Manufacturers Trust Company, respondent.
    I. There is no merit to any of the claims alleged in the third-party complaint against Manufacturers, individually, or in the “Counterclaim” and “Cross-Complaint ’ ’ against Manufacturers, as committee, contained in the answer of Sarra, Inc. (Herstein Co. v. Columbia Pictures Corp., 4 N Y 2d 117; Walsh Bros. v. Ruppert, 7 A D 2d 896; Douglass v. Lewis, 131 U. S. 75; Chisholm v. Muller, 234 App. Div. 102; Burr v. Stenton, 43 N. Y. 462; Sage v. Hampe, 235 U. S. 99; Jessewich v. Abbene, 154 Misc. 768.) II. In any event, Sarra, Inc., can recover no more than nominal damages from Manufacturers. (Sears, Roebuck & Co. v. 9 Ave.-31 St. Corp., 274 N. Y. 388; Matter of Strasburger, 132 N. Y. 128; Orecchinto v. Chittenden, 177 App. Div. 88; Matter of Hunt, 120 Misc. 174, 242 N. Y. 518; Thorley v. Pabst Brewing Co., 179 F. 338, 219 U. S. 583.) III. Special Term properly granted and the Appellate Division properly affirmed summary judgment for Manufacturers.
    Upon reargument: Judgment affirmed, nunc pro tunc as of October 17,1960, with costs. In the case of a lease made by the committee of an incompetent, section 1377 of the Civil Practice Act requires court approval if the termination date is more than five years from the date of the execution (Matter of Trapasso Oldsmobile [Italian Soc.], 4 N Y 2d 133, 136).
   Burke, J. (concurring).

We do not agree with the majority that the last lease was invalid because it was executed 35 days prior to the commencement of the five-year term. This appeal pivots upon a construction of that portion of section 1377 of the Civil Practice Act which permits, without judicial permission, a committee of an incompetent to lease property ‘ ‘ for a term not exceeding five years ”. The appellant seeks a reversal of the judgment which declared two leases dated December 22, 1953 and June 26, 1958, which were entered into between the committee of the incompetent, and Sarra, Inc., invalid and dismissed its third-party complaint.

The pertinent provision of section 1377 which is involved provides as follows: “ But a committee of the property cannot alien, mortgage or otherwise dispose of real property, except to lease it for a term not exceeding five years, without the special direction of the court obtained upon proceedings taken for that purpose, as prescribed in this act ” (emphasis supplied).

In March of 1945 appellant entered into a valid five-year lease agreement commencing May 1,1945 whereby it obtained possession of certain premises located and known as 927-933 Third Avenue, New York, N. Y. Approximately six months thereafter, this lease was cancelled and superseded, with judicial approval, by a 10-year lease which was to terminate on April 30, 1955.

On December 22,1953 a third lease was executed for a term of five years to commence on the expiration of the existing lease (i.e., May 1, 1955).

On June 26,1958 a fourth agreement, canceling the third lease, was made for a term not exceeding five years commencing on August 1, 1958.

The latter two agreements were entered into by the committee and Sarra, Inc., without court approval. Thereafter, and subsequent to the incompetent’s death in December of 1958, the plaintiffs, heirs of the deceased incompetent, brought this action to declare the latter agreements void ab initio solely on the ground that they were made in excess of the five-year maximum permitted by the statute.

The Supreme Court, following judicial constructions of similar language in other sections of other laws (Thirty-Nine Cortlandt St. Corp. v. Lambert, 209 App. Div. 575, construing Real Property Law, § 106; Matter of Trapasso Oldsmobile [Italian Soc.], 2 A D 2d 166, revd. on other grounds 4 N Y 2d 133, construing Membership Corporations Law, § 21; Parthey v. Beyer, 228 App. Div. 308, construing N. Y. Const., former art. I, § 13), held that the leases were void ab initio. We agree, but upon a different ground insofar as the last lease is concerned.

There can be no doubt that the third agreement was invalid. The December, 1953 agreement provided in effect that the new lease was to be tacked upon the then existing lease which had approximately 16 months to run. At the date of the agreement, therefore, Sarra, Inc., had a right to remain in possession for six years, four months. This is inconsistent with and in derogation of the express mandate of the statute which limits any lease, entered into without judicial permission, to a five-year period. This identical device was declared void in Matter of Trapasso Oldsmobile (Italian Soc.) (supra). In that case the Appellate Division held that a five-year lease, entered into some 19 months before the expiration of a current five-year lease, exceeded the statutory limitation. In reversing the Appellate Division on other grounds, we stated that: “If this lease did not require court approval then, correctly reasoned the Appellate Division, ‘ any series of 5-year leases, to take effect in the future, would lawfully encumber the real property for as many years as the board of directors authorizing the same might dictate ’ ” (4 N Y 2d, supra, p. 136).

The invalidity of the last lease cannot be attributed to the fact that the lease was executed 35 days prior to the commencement of the five-year term. Such an interpretation of the statute would unnecessarily restrict the negotiations leading to the preparation of the five-year lease authorized by the statute. Both current and prospective tenants require advance assurance that they will obtain a full five-year lease. Indeed it would be impractical to refuse to allow the committee a reasonable time in which to negotiate, prepare and execute the lease for a new or successive period. The cases cited by the opinion below and respondents (i.e., Gortlandt and Trapasso, supra), declaring void the execution of a five-year lease to commence in the future, are distinguishable. Those cases were talking about an agreement (such as the third lease here) which would be “ coupled with ” an existing lease that has a substantial time to run. They were not intended to prevent negotiation and execution of a lease within a reasonable period prior to the commencement of the term of the five-year lease.

The last lease nevertheless is invalid because of the leasing of additional space then occupied by a statutory tenant. This portion of the agreement, which the court below failed to discuss, provided that, in the event the statutory tenant did not agree to vacate prior to July 31, 1958, the committee would, pursuant to the Emergency Business and/or Commercial Space Rent Control Law (L. 1945, chs. 3, 314, as amd., § 8, subd. [kk]), commence summary proceedings to remove said tenant. It further provided that “ [the] Landlord, to the extent permitted by law, and Tenant agree that the expiration date of this lease shall be extended from July 31, 1963, by the number of days from August 1, 1958, to the date Landlord tenders to Tenant possession of said fourth floor, so that the term of this lease shall in all events be for five (5) years.” (Emphasis added.) The validity of the lease must be judged by the consequences which would flow from the performance of its terms in the light of the circumstances present at the time it was to commence, not conditions later arising due to the incompetent’s death. The argument of appellant, that the phrase ‘ ‘ to the extent permitted by law ” meant that the term of the lease had to comply with section 1377 of the Civil Practice Act, is specious. Under the emergency rent laws, in order to secure the order of eviction (granted in November of 1958, with a stay of approximately six months) the landlord had to assert that it had obtained “ a bona fide offer to enter into a lease with a prospective tenant * * * for a term of five years or more ” (§ 8, subd. [kk]; emphasis supplied). It was imperative, therefore, since there was no reasonable assurance that the statutory tenant could be removed immediately, or even within a reasonable time, that the term of the lease be extended beyond August. 31, 1963. In other words, the five-year limitation of section 1377 would be extended to include the incalculable, and often protracted, judicial process of eviction.

Had the agreement for the additional space been omitted, or if it was separate and/or excisable, the last lease would have been valid. Since the preceding lease was void ah initio, it is apparent that on the date of the subsequent agreement appellant itself was either a holdover or statutory tenant. In either event there was nothing to thwart the negotiation and execution of a five-year lease with a prospective lessee. However, as we read it, the lease is entire. It clearly and unequivocally states that “ Landlord hereby leases to Tenant * * * [the] small basement storage room, the entire second and third floors and mezzanine balcony thereof and the entire fourth floor ” (emphasis supplied). The latter portion, of course, is that occupied by the statutory tenant which the contracting parties sought to remove by summary proceedings under the emergency rent laws. The entirety of the lease is also apparent from the terms employed in the attempted extension which was necessary, insofar as the fourth floor was concerned, in order to comply with the emergency rent law. Bather than limiting its application to the fourth floor, it specifically extends the entire lease, and adds final emphasis by stating that ‘1 this lease shall in all events be for five (5) years ”.

We cannot sanction, as a saving clause, the equivocal usage of the phrase “to the extent permitted by law”. The text, Within which it is employed, attempts, it seems, to accomplish mutually exclusive objectives. On the one hand, in order to comply with the rent control statute, appellant states that the lease shall be extended, and shall in all events be for five years — thereby ignoring the five-year (August 31, 1963) maximum. Subsequent to the accomplishment of this objective and when later faced with section 1377, appellant calls upon the alleged saving clause in order to fix the termination of the lease at August 31, 1963—thereby, although complying with the Civil Practice Act, revealing the concealed intent to evade the rent control statute. Such evasive tactics cannot be countenanced.

The third-party complaint was properly dismissed. This complaint alleges (1) a breach of an express covenant of quiet enjoyment; (2) breach of an implied warranty that the committee had authority to execute said lease; and (3) that the express covenant constitutes a material representation which was false.

As aptly noted by the Supreme Court, since the leases herein are in violation of the statute and void ab initio, the appellant can assert no rights thereunder. In addition, since appellant was, through its attorneys and the language of the leases, well aware of the status of the lessor and the limitations of section 1377, the allegations of the second and third causes of action are without merit. We should not indirectly condone participation in these borderline contracts (which seek to alienate an incompetent’s property beyond statutory limitation) by permitting incidental actions arising therefrom. Appellant knowingly exposed itself to this risk when it accepted the leases without requesting that judicial approval be obtained. The so-called misrepresentation flies in the face of appellant’s knowledge of the circumstances and acquiescence in the illegal attempt to prolong the statutory limitation.

Accordingly, the judgment entered upon the order of the Appellate Division should be affirmed.

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

Judgment affirmed, etc.


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

text:
    Town of Hempstead, Respondent, v. Herbert W. Goldblatt et al., Appellants.
    Argued October 18, 1960;
    decided January 19, 1961.

      Milton I. Newman, Emil N. Baar and Edward M. Miller for appellants.
    I. Ordinance No. 16 which prohibits the continuation of defendants’ business commenced and carried on since 1927 violates defendants’ vested rights in their previously adjudicated nonconforming use. Ordinance No. 16 cannot be sustained as a valid exercise of police powers delegated to plaintiff town under section 130 of the Town Law. Ordinance No. 16 violates the Federal and New York State constitutional provisions of due process. (Pennsylvania Coal Co. v. Mahon, 260 U. S. 393; Arverne Bay Constr. Co. v. Thatcher, 278 N. Y. 222; Euclid v. Ambler Co., 272 U. S. 365; Matter of Harbison v. City of Buffalo, 4 N Y 2d 553; People v. Miller, 304 N. Y. 105; Town of Somers v. Camarco, 308 N. Y. 537; People v. Calvar Corp., 286 N. Y. 419; Vernon Park Realty v. City of Mt. Vernon, 307 N. Y. 493; Hadacheck v. Los Angeles, 239 U. S. 394; Terrace Park v. Errett, 12 F. 2d 240, 273 U. S. 710; Good Humor Corp. v. City of New York, 290 N. Y. 312; Trio Distr. Corp. v. City of Albany, 2 N Y 2d 690.) II. Insofar as there has been a judgment directly adjudicating, in an action between the same parties to this litigation, that defendants have a legal right to continue their operations on their entire premises, the constitutional rights of defendants are fortified by the additional, well-established principle of law that legislation which overrules vested rights obtained by a judgment is unconstitutional. (Germania Sav. Bank v. Suspension Bridge, 159 N. Y. 362; Waddey v. Waddey, 290 N. Y. 251; People ex rel. H. D. H. Realty Corp. v. Murphy, 194 App. Div. 530, 230 N. Y. 654; Livingston v. Livingston, 173 N. Y. 377; Gilman v. Tucker, 128 N. Y. 190; Matter of Greene, 166 N. Y. 485; Hoyt Metal v. Atwood, 289 F. 453; Saltser & Weinsier v. McGoldrick, 295 N. Y. 499.) III. In any event, the judgment below should be reversed and a new trial should be ordered if this court concludes that the testimony with respect to amount of investment, value of property and other evidence of values and costs is not sufficient to permit this court to pass on the issue of constitutionality of Ordinance No. 16.

      William G. Mattison, Richard P. Charles and Mario Matthew Cuomo for respondent.
    I. Appellants did not rebut the presumption of constitutionality; nor did they prove confiscation. (Pennsylvania Coal Co. v. Mahon, 260 U. S. 393; Borden’s Co. v. Baldwin, 293 U. S. 194; United States v. Carolene Prods. Co., 304 U. S. 144; Matter of Wulfsohn v. Burden, 241 N. Y. 288; Matter of Stubbe v. Adamson, 220 N. Y. 459; Wiggins v. Town of Somers, 4 N Y 2d 215; Olsen v. Nebraska, 313 U. S. 236; Shepard v. Village of Skaneateles, 300 N. Y. 115; New York Trap Rock Corp. v. Town of Clarkstown, 1 A D 2d 890, 3 N Y 2d 844; Defiance Milk Prods. Co. v. Du Mond, 309 N. Y. 537; Lindsley v. Natural Carbonic Gas Co., 220 U. S. 61; Matter of Ahern v. South Buffalo Ry. Co., 303 N. Y. 545, 344 U. S. 367; People v. Calvar Corp., 286 N. Y. 419; Queenside Hills Co. v. Saxl, 328 U. S. 80; Matter of Engelsher v. Jacobs, 5 N Y 2d 370, 360 U. S. 902; Matter of Harbison v. City of Buffalo, 4 N Y 2d 553; Arverne Bay Constr. Co. v. Thatcher, 278 N. Y. 222.) II. The judgment in the earlier action on the zoning ordinance is not unconstitutionally impaired by the judgment below. (Town of Somers v. Camarco, 308 N. Y. 537; People v. Miller, 304 N. Y. 105; Matter of Harbison v. City of Buffalo, 4 N Y 2d 553; Health Dept. v. Rector, 145 N. Y. 32; Queenside Hills Co. v. Saxl, 328 U. S. 80.) III. Ordinance No. 16 applied to uses existing at the time of its enactment. (Escoe v. Zerbst, 295 U. S. 490; People ex rel. Alpha Portland Cement Co. v. Knapp, 230 N. Y. 48; Wiggins v. Town of Somers, 4 N Y 2d 215.)
   Burke, J.

The question raised is whether an ordinance of the Town of Hempstead regulating the defendants’ business is confiscatory and in violation of the due process clause of both the Federal and State Constitutions.

The defendants seek to revise a judgment of the Appellate Division unanimously affirming a judgment of Special Term upholding the constitutionality of the ordinance and enjoining the defendants from conducting sand mining and excavation on certain property in the Town of Hempstead until a permit has been issued and certain violations of the ordinance have been corrected. They contend that the ordinance cannot be sustained as a valid exercise of police powers and that it violates defendants’ vested rights in an established nonconforming use.

Since the courts below have unanimously found that the defendants’ proof failed to overcome the presumption of constitutionality and to establish the unreasonableness of the regulations, we may not hold that the ordinance which is an exercise of the town’s statutorily delegated police power is invalid, unless there is no justification on “ any state of the facts ”. (United States v. Carolene Prods. Co., 304 U. S. 144, 154.)

The sand and gravel pit in question lies in the midst of a densely populated residential area. Included within a radius of 3,500 feet are more than 2,200 homes and 4 schools with an enrollment of 4,500 children. The pit itself occupies a 38-acre tract of which approximately 20 acres is beneath an artificial lake with an average depth of 25 feet. In order to provide protection against the danger of cave-ins, falls, drownings and water pollution, the ordinance makes provision for setbacks, degrees of slope, barricades, fences, lights, retaining walls and maximum ground water level. Neither the injunction granted nor the ordinance proscribes any future excavation. The injunction merely conditions future operation upon the issuance of a permit from the Town of Hempstead, and the correction of certain violations of the ordinance. There are approximately 18 acres which are available for excavation. The hazards to both life and property accompanying the uncontrolled operation of these pits are common knowledge, and their restraint need not await an event.

The minimal safety standards currently required by the Town of Hempstead have not been demonstrated under the circumstances here to be an unreasonable means to accomplish this end. Upon this record a threat to the community’s welfare may at least be said to be 1 ‘ reasonably apprehended ”. (Wiggins v. Town of Somers, 4 N Y 2d 215, 219.) “ It is to be remembered that we are dealing with one of the most essential powers of government, one that is the least limitable. It may, indeed, seem harsh in its exercise, usually is on some individual, but the imperative necessity for its existence precludes any limitation upon it when not exerted arbitrarily. A vested interest cannot be asserted against it because of conditions once obtaining [case cited]. To so hold would preclude development and fix a city forever in its primitive conditions. There must be progress, and if in its march private interests are in the way they must yield to the good of the community.” (Hadacheck v. Los Angeles, 239 U. S. 394, 410.) It is not the function of the courts but of legislators to determine the “ reasonableness, wisdom and propriety” of the regulations needed to protect the community (South Carolina Highway Dept. v. Barnwell Bros., 303 U. S. 177, 191), and their regulatory power, as the United States Supreme Court has pointed out, governs preexisting uses (Queenside Hills Co. v. Saxl, 328 U. S. 80; Matter of Engelsher v. Jacobs, 5 N Y 2d 370, cert. denied, 360 U. S. 902). Recognizing, therefore, that this court may not question the need for the legislation (Olsen v. Nebraska, 313 U. S. 236, 246) where there is found, as here, a rational basis for the legislative choice and no factual support for declaring it arbitrary (Lincoln Bldg. Associates v. Barr, 1 N Y 2d 413, 418-420), we do not believe that this ordinance can be declared as a matter of law to go beyond regulation to a degree which would impair its validity.

The judgment appealed from, therefore, should be affirmed, with costs.

Van Voorhis, J. (dissenting).

Defendants appeal as of right from a judgment upholding the constitutionality of Ordinance No. 16 of the Town of Hempstead, and enjoining the defendants from operating a sand and gravel pit until a permit has been issued by the Town of Hempstead, and certain violations of the said ordinance have been corrected. The defendant, Goldblatt, is the owner of 38 acres of land located in the Town of Hemp-stead, which is the property involved in this litigation. The other defendant, Builders Sand and Gravel C'orp., is the operator of the business of excavating’ and selling the sand and gravel taken from the land. The property was purchased by Mr. Goldblatt’s father in 1927 and the excavation and sale of sand and gravel has been carried on since 1927. Within a year after operations began, the excavation had gone below water level and an artificial lake was created, averaging now approximately 25 feet in depth.

The entire premises of defendant Goldblatt are surrounded by 7,000 lineal feet of a 6-foot chain-link fence, topped by 3 strands of barbed wire. The fence was built and the gravel pit was operated in accordance with a 1945 ordinance and is admittedly in conformity therewith.

When the 38 acres of land owned by defendant Goldblatt were purchased and dredging operations began in 1927, the surrounding property was mainly farm land. The first provision for residential zoning of property was enacted in January, 1930. Thereafter and during the time defendants continued their dredging operations, the surrounding area became heavily populated. Thus, defendants did not bring their business into a residential area; defendants’ neighbors voluntarily came into this area where defendants’ operations and the artificially created lake were evident and obvious.

In 1956 the plaintiff town brought to trial its first legal proceeding to terminate the defendants’ dredging operations. That was a suit in Supreme Court, Nassau County, to restrain defendants from operating on the theory that defendants’ dredging operations constituted a violation of the Zoning Ordinance of the Town of Hempstead.

It was held that defendants had a legal right, consisting of a prior nonconforming use, to continue their excavation and operations under water on their ‘ ‘ entire premises * * * notwithstanding any Ordinances of the plaintiff ’ ’. The opinion of Justice Hill states: “ I find that the defendants are now and have been since 1927 conducting a prior nonconforming use on the premises, and that they have made such a substantial investment in improvements in the business to warrant a continuance of this nonconforming use, see People v. Miller, 304 N. Y. 105; Town of Somers v. Camarco, 308 N. Y. 537.” No appeal was taken from the judgment entered upon the opinion of Mr. Justice Hill.

In 1958 Ordinance No. 16 was amended to prohibit all excavation below water level and to require the filling in of excavations previously made. Defendants now conduct the only sand and gravel business by dredging in Hempstead and it would appear that the ordinance was aimed directly at them.

In the 1956 litigation before Mr. Justice Hill, the town did not bring into litigation or rely on the provisions of the original 1945 Ordinance No. 16 for the reason that defendants’ operations complied with the regulatory provisions of the 1945 ordinance. It was not until the 1958 amendment of the ordinance that excavation below ground water level was prohibited.

The plaintiff township would distinguish an invalid retroactive zoning ordinance attempting to eliminate a ‘ ‘ nonconforming use ” (Matter of Harbison v. City of Buffalo, 4 N Y 2d 553; Town of Somers v. Comarco, 308 N. Y. 537) from a “ regulatory ” ordinance which regulates the nonconforming use in the interest of public health and safety (Queenside Hills Co. v. Saxl, 328 U. S. 80; Matter of Engelsher v. Jacobs, 5 N Y 2d 370, cert. denied 360 U. S. 902). Both lower courts applied this distinction and held that the 1958 ordinance was a proper police power regulation designed to abate a dangerous situation.

While in a proper ease the distinction is a valid one, the record here indicates a systematic attempt to force the defendants out of business. The decision below has that practical effect. A condition of continuing the business requires defendants to fill the existing excavation at a cost in excess of $1,000,000. If this is not done, the ordinance purports to render defendants criminally liable for separate misdemeanors during each week until the pit is refilled. This particular portion of the ordinance, we may note, in addition to other objectionable features, serves, in effect, to render criminal an act “ innocent when done ” (People v. Oliver, 1 N Y 2d 152, 158). In consequence it may well be regarded as oppressive, and condemned by the constitutional prohibition against ex post facto laws (U. S. Const., art. I, § 10). In other words, under the challenged ordinance as it now stands, defendants are susceptible of criminal prosecution for not filling in the excavation (to the extent of approximately 1,000,000 cubic yards) lawfully created over the years prior to enactment of the ordinance, by means of the lawful removal of sand, and in the course of prosecuting a lawful business.

A reading of the Saxl and Engelsher cases (supra) cited by the respondent town indicates that they were truly mere ‘ ‘ regulatory ’ ’ ordinances which did not operate to confiscate and prohibit absolutely. Since Ordinance No. 16 virtually eliminates the nonconforming use and prohibits unconditionally and finally all underwater dredging previously conducted on 20 acres of defendants’ property, the theory of “ regulation ” cannot reasonably be sustained. The following observation of Mr. Justice Holmes in Pennsylvania Coal Co. v. Mahon (260 U. S. 393, 415-416) is applicable: “ The general rule at least is that while property may be regulated to a certain extent, if regulation goes too far it will be recognized as a taking. * * * We are in danger of forgetting that a strong public desire to improve the public condition is not enough to warrant achieving the desire by a shorter cut than the constitutional way of paying for the change.”

Similar language was used by this court in Arverne Bay Constr. Co. v. Thatcher (278 N. Y. 222, 231).

In People v. Calvar Corp. (286 N. Y. 419) this court stated (p. 421): “Forceful argument may be made that a general and complete prohibition of such use of property, even where such use might be permitted without causing substantial injury to the community, would be unreasonable. That question must await determination until it arises. We express no opinion upon it. In this case there has been no such complete and absolute prohibition.”

We think that this case falls within the ambit of the question left unanswered in the Calvar case.

Furthermore, in the Harbison case (4 N Y 2d 553, supra), it was held that the value of the investment in the property was relevant in determining the validity of an attempted elimination of a nonconforming use. In this case, defendants attempted to show the value of their investment but the trial court ruled against the introduction of such evidence. Such evidence was important and admissible under the majority ruling in the Harbison case and also under the doctrine in People v. Miller (304 N. Y. 105, 108, 109) where this court held that unless the loss to the owner ” of a prior nonconforming use is “ slight and insubstantial ’ ’ it could not be wiped out by an ordinance (see, also, Town of Somers v. Camarco, 308 N. Y. 537, 539, 540, supra). The record does indicate, however, the substantial nature of defendants’ business.

In Trio Distr. Corp. v. City of Albany (2 N Y 2d 690, 696), we held that an ordinance was invalid prohibiting the conduct of an occupation under the guise of regulation.”

Upon the argument the attorney for plaintiff-respondent said in answer to questioning that he does not contend that this condition amounts to a nuisance, but that excavations of this kind are subject to regulation by ordinance under the police power. Of course they are, in the interest of public health and safety, but an examination of the clauses in the 1958 amendments to this Ordinance No. 16 supports the contention that it was directed at this single operation and designed to accomplish what the 1956 lawsuit had failed to do, viz., to destroy a lawful pre-existing use under the Town Zoning Ordinance. The object is not to promote public health or safety, but to end the operation of this business under the guise of regulation.

The very circumstance that this gravel pit was conducted in conformity with the 1945 regulatory ordinance was exploited by the town to trap defendants by changing the permitted grade of the declining angle of the slope of the pit from 45 to 30 degrees, and by requiring a concrete curb beneath the 7,000 feet of fence which was built according to the 1945 requirement. No object in the installation of this concrete curbing has been shown except that it would put defendants to the expense of removing the fence, laying the concrete and constructing a new fence. This, along with the prohibition of excavation below water level or more than 10 feet below the highway level, and the extension from 10 to 20 feet of the permitted distance between the excavation and the property line and the retrospective requirement of refilling all that had been excavated since 1927, shows that the purpose was expropriation rather than regulation.

In 1959 the United States Bureau of Mines statistics show that the business of excavating and selling sand and gravel in the country totalled more than $700,000,000 and more than $27,600,000 in New York State alone. Much must have been spent on Long Island where, respondent itself asserts, building operations have proceeded at a high rate in the Town of Hempstead. There is nothing inherently dangerous or evil about this business, nor about excavating under water, which, especially in this area, has been a vital necessity. The minutes of the trial before Justice Hill, in evidence here, show that the gross annual business of defendants was in excess of $200,000 and that their capital investment was approximately $241,000. All of this is important as indicating that this is a lawful business which the Declaration of Policy ” in the ordinance says it was enacted to suppress. The regulatory provisions of the ordinance adopted in 1945, it is virtually conceded, were adequate to furnish protection against whatever hazards were created by the sand and gravel pits. That appears to have been drawn in substantially the same form as in the ease of towns generally in the County of Nassau. Nor does the circumstance alter the case that there are 18 more acres in the tract which the photographs show to be entirely occupied by the machinery used in the operation of the sand and gravel pit. Even if the land on which the machinery is located could be utilized for excavation, it would not help the ordinance which unlawfully prevents the operation of a lawful business on the 20 acres. It may be noted that, although the trial court excluded evidence of the value of the installations, the assessed valuation is in evidence as $66,000.

In endeavoring to close this pit the town says much about, the safety of children. They are protected by the regulatory provision of the ordinance as it was enacted in 1945 according to a pattern prevalent throughout the county. The one drowning mentioned in the entire history of this pit, which is not shown by the record but does appear, we are told, from the police reports, happened in 1944 before the enactment of any ordinance requiring a fence to surround the excavation. The evidence indicates the existence of ponds, drainage basins, sumps and other conditions of open water that have gone unmolested which appear to be more dangerous than the subject property because not surrounded by fences. The presence of violations of the ordinance elsewhere would not, of course, prevent its enforcement, but it confirms that the object here was not regulation but prohibition of the conduct of this business. There are some hazards in the operation of any legitimate business. Automobiles are not kept off the highways for the reason that children as well as adults are occasionally injured or killed by them.

The judgment appealed from should be reversed and the complaint dismissed, with costs in all courts.

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

Judgment affirmed.


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

text:
    In the Matter of Frances Becker, Appellant, v. Board of Education of Middleburgh Central School District No. 1, of the Towns of Middleburgh, Fulton, Broome, Blenheim and Schoharie, Schoharie County, and Berne, Albany County, Respondent.
    Argued December 1, 1960;
    decided January 19, 1961.

      F. Walter Bliss and Francis J. Hollotvay for appellant.
    I. There exists no authority by statute or otherwise for the creation and existence of so-called “ tenure areas therefore, appellant’s continued employment by respondent beyond the three-year probationary term in any area of teaching results in petitioner’s acquisition of tenure rights. (Matter of Carter v. Kalamejski, 255 App. Div. 694, 280 N. Y. 803; Walcott v. Fisher, 274 App. Div. 339, 299 N. Y. 688; Matter of Ford, 49 N. Y. St. Dept. Rep. 178; Matter of Downey, 72 N. Y. St. Dept. Rep. 29; Matter of Sanders, 72 N. Y. St. Dept. Rep. 39; Matter of Nyboe v. Allen, 10 Misc 2d 895; Matter of Feldbauer, 65 N. Y. St. Dept. Rep. 68; Matter of Monan v. Board of Educ. of City of Buffalo, 280 App. Div. 14; Matter of O’Connor v. Emerson, 113 Misc. 472, 196 App. Div. 807, 232 N. Y. 561; Moore v. Board of Educ. of City of N. Y., 121 App. Div. 862, 195 N. Y. 614; Boyd v. Collins, 10 A D 2d 584.) II. Appellant has acquired tenure rights through completion of the three-year probationary period from September, 1952 to June, 1955, in the elementary level, coupled with her teaching remedial reading in the elementary level for the school year 1957-1958.

      John■ B. Bingham for respondent.
    I. The petition fails to establish that appellant ever was appointed to tenure or ever acquired tenure as a matter of law pursuant to section 3013 of the Education Law. (Matter of Holm v. Board of Educ. of City of Rochester, 260 N. Y. 572; Matter of Downey, 72 N. Y. St. Dept. Rep. 29; Matter of McManus, 64 N. Y. St. Dept. Rep. 99;
      Matter of Feldbauer, 65 N. Y. St. Dept. Rep. 68.) II. Both the probationary appointment made on March 6, 1952 and the appointment made on July 31, 1957 were properly terminated. III. During all the time in which appellant was employed by respondent, tenure areas were in existence and had been established by the Department of Education of the State of New York in the administration of section 3013 of the Education Law. (Matter of Monan v. Board of Educ. of City of Buffalo, 280 App. Div. 14.) IV. Any proceeding to review acts of respondent should have been commenced within four months after the determination to be reviewed became final. The proceeding herein was not brought within the time limits as prescribed by section 1286 of the Civil Practice Act. (Matter of Holm v. Board of Educ. of City of Rochester, 260 N. Y. 572; Matter of Downey, 72 N. Y. St. Dept. Rep. 29.) V. The actions of the Department of Education in establishing and designating tenure areas or fields of teaching cannot be reviewed in a proceeding brought under section 78 to review the actions of respondent. VI. The Education Department of the State of New York in administering section 3013 of the Education Law had the authority to establish tenure areas of teaching and administration.

      Charles A. Brind, John P. Jehu, Elisabeth M. Eastman and George B. Farrington for Commissioner of Education of the State of New York, amicus curiae.

    I. The statute clearly provides for tenure areas. (Matter of McMaster v. Owens, 275 App. Div. 506; Matter of O’Connor v. Emerson, 196 App. Div. 807.) II. The Legislature refused to enact appellant’s theory in 1958 (A. Int. 1570, Pr. No. 1572; S. Int. 951, Pr. No. 954). III. Collateral attacks upon judicial decisions of the Commissioner of Education are improper. (Matter of Chapin v. Board of Educ. of City of Buffalo, 291 N. Y. 241; Matter of Board of Educ. of City of N. Y. v. Allen, 6 N Y 2d 127; McCollum v. Board of Educ., 333 U. S. 203; Osterhoudt v. Rigney, 98 N. Y. 222; People ex rel. McCabe v. Matthies, 179 N. Y. 242.) IV. Long-established construction of a statute by the administrative agency charged with its administration is entitled to great weight. (Matter of Armitage v. Board of Educ. of City of Auburn, 122 Misc. 586, 210 App. Div. 812, 240 N. Y. 548; Bullock v. Cooley, 225 N. Y. 566; Kings County Light. Co. v. City of New York, 176 App. Div. 175, 221 N. Y. 500; Matter of McMaster v. Owens, 193 Misc. 284, 275 App. Div. 506; Board v. Hearst Pub., 322 U. S. 111; Rochester Tel. Corp. v. United States, 307 U. S. 125.)

      John E. Glenn for New York State Teachers Association, amicus curice.

    I. The language of the tenure statute does not literally or by implication indicate an intent or purpose of its legislative authors that the failure or omission by the Board of Education to act upon the recommendation of the District Superintendent shall have the legal effect of denial of tenure. (Matter of Wohlsen, 67 N. Y. St. Dept. Rep. 44; Matter of Graves v. Barber, 193 Misc. 326; Walcott v. Fisher, 274 App. Div. 339, 299 N. Y. 688; Kauffman & Sons Saddlery Co. v. Miller, 298 N. Y. 38; People v. Ryan, 274 N. Y. 149; Matter of Cherkis v. Impellitteri, 307 N. Y. 132.) II. A duly certified teacher, whose employment by a school district has been continuous and who, after regular appointment by a majority vote of the Board of Education, has served a full probationary period and has been duly recommended by the District Superintendent for appoint-ment on tenure in such tenure area, and subsequent to the expiration of such probationary period is employed to perform and thereupon renders any regularly scheduled services in the tenure area for which such probationary requirement has been fulfilled and requisite recommendation provided, does thereby acquire tenure in such area by operation of law, with the same legal effect as though such Board of Education had by majority vote duly appointed such teacher on tenure at or before the expiration of such probationary period. (Matter of Cummings v. Board of Educ., 278 App. Div. 874.)
   Chief Judge Desmond.

By permission of the Appellate Division, Third Department, petitioner-appellant Frances Becker appeals here from a unanimous order of that court affirming a Special Term order.

This is a mandamus-type article 78 proceeding brought against the Middleburgh Central School District to compel that body to reinstate petitioner as a teacher and to grant her tenure. Respondent’s position, most simply stated, is that petitioner never acquired tenure because, although she was employed by the district as a teacher for about six years, she never taught in one “ area ” or category of subject matter beyond the three-year period which this district validly set as its probationary period. Petitioner’s position, shortly stated for present purposes, is twofold: first, that she got tenure when she taught more than the three-year probationary period even though she moved from one “area” or category to another; and, second, that she actually taught for more than three years in one particular ‘ ‘ area ’ ’ since, after she had taught three years in one 1 area ’ ’ as an elementary grade teacher, she did some part-time work in remedial reading as part of that same “ area

The statute involved is section 3013 of the Education Law and the really pertinent part therein is subdivision 2 which says that on or before the expiration of a probationary term the district superintendent of schools shall formally recommend to the board for tenure appointment those teachers whose probationary services have been found satisfactory. The subdivision further says that any teacher not recommended for tenure shall have 60 days ’ notice thereof prior to the end of the probationary period and that those teachers who are kept on pursuant to such recommendation after the expiration of the probationary period shall have tenure, which means, of course, that they may be removed on charges only. The respondent argues (and the courts below held) that to earn tenure the teacher must teach more than the prescribed probationary term in the same “ area ” of instruction, and, for support of its argument, relies on a ruling appearing in a pamphlet issued by the State Education Department in 1953. The department’s ruling was that tenure classifications are by areas, meaning that to acquire tenure one must serve more than the probationary period in one particular area. Included in the ruling was this statement: ‘ ‘ After a teacher has acquired tenure he may not be transferred to a position in a different tenure area without his consent. When so transferred the teacher begins a new probationary period in the new area. He does not, however, lose the tenure in the area where he was employed prior to transfer.” The Commissioner of Education has in cases other than petitioner’s applied that same ruling.

As the Special Term opinion in this case points out, there is nothing in the statute itself referring directly to this matter of ‘ area ’ ’ but, again according to Special Term, the intent of the statute and the common sense of the thing seem to be that tenure results from continuing a teacher in the same kind of teaching job after she has satisfactorily served for the full probationary period in that particular category of teaching. Other than the rulings and decisions of the State Commissioner above referred to, there seems to be no controlling authority available for decision of the present appeal.

The facts as to petitioner’s teaching experience are as follows: in 1952 she was appointed an elementary teacher in the schools of this district for a probationary period of three years and at the end of three years was given recommendations for tenure by the appropriate supervisory officials. Respondent board did not, however, act on the recommendations. Instead, in March, 1955, during the original three-year period, the board offered petitioner an appointment as a special or kindergarten teacher (a different “ area ”) for a period to begin in July, 1955, that is, for the school year beginning in the Autumn of 1955. She accepted that position and taught kindergarten classes for two full school years. In the Summer of 1957 she accepted still another kind of appointment, in the high school or secondary department as a teacher of French and Latin, those being subjects on which she had been issued a teaching certificate. This, according to the board, was a new or third “ area ” probationary appointment. Petitioner continued to do this high school teaching during the 1957-58 school year and at the end of that school year (June, 1958) she was informed that she would no longer be employed. During the 1957-58 school year, besides her high school work in French and Latin, she taught remedial reading to eighth grade students for two 40-minute periods per week. The board asserts and Special Term held that the only probationary period she ever completed was the first one — that is, her service for three years beginning in 1952 as a grade school teacher in the elementary department. As to the part-time or remedial reading service, the argument of respondent is that this was an incidental or sideline job and that it could not be the basis of additional probationary credit. We think that latter is correct since it hardly seems reasonable that a teacher can, during a three-year probationary period, get credit for more than three years by doing a little extra work in another field. It is generally significant that each time petitioner was appointed, that is, in 1952,1955 and 1957, her notice of appointment from the board said that the particular appointment was for a probationary period of three years. We agree with petitioner that her acceptance of an appointment so labeled ‘1 probationary ’ ’ would not necessarily amount to a waiver of her statutory rights but there must be some relevance in the fact that she was notified each time that it was a new probationary appointment (which is the antithesis of tenure) and that she never objected until she was dropped from employment. In other words, the offer and acceptance of a new probationary appointment must have meant to an informed person like petitioner that tenure was being denied her at that point. Petitioner argues, however, that since this statutory system is obviously for the benefit of teachers “ waiver ” has no place in the picture at all.

The principal thrust of petitioner’s argument is that, since the statute does not mention “area” in reference to tenure, the school authorities cannot write that concept in and that if a teacher has been allowed to extend her teaching service beyond the- three years she automatically gets tenure. At this point we note a conflict between the brief filed by petitioner and that of the State Teachers Association, as amicus curia, for reversal. Petitioner says there is no such thing as 1‘ area tenures ’ ’. The Association says there are such but that, nevertheless, a teacher allowed to serve beyond the probationary term even in a different area automatically gets tenure. The latter position seems to raise more problems than it solves. It would mean that after a teacher has served more than three years or other valid probationary period (for instance, as a kindergarten teacher) but her services as such have been found to be unsatisfactory or no longer required, the board could not give her a further probationary tryout as a grade school teacher but would have to discharge her.

Petitioner makes an argument from two decisions by the Commissioner in the departmental cases of Feldbauer and Trani. Petitioner’s point is that the Commissioner’s original rulings as to “ tenure areas ” was based on the old division of the public school system into eight years of elementary and four years of secondary school with different salary schedules for each, and that, with the new concept of six years of elementary and six years of high school and with the present equality of salary grades for all teachers, the 11 tenure area ’ ’ idea and ruling has no basis any more. The answer is, we think, that, while the specific divisions into areas may change and have changed, petitioner never had more than three years’ service in any area.

The State Commissioner of Education as amicus curias makes the argument that the phrase ‘ ‘ so appointed to any such positions ” (italics ours) in section 3013 (subd. 1) and the mandating therein of probationary periods necessarily requires for tenure probationary service in one particular teaching position, not a series of different kinds of teaching jobs. The Commissioner points out, also, that the Legislature in 1958 refused to add language providing that “Any service” after appointment shall constitute part of the probationary period. The strongest arguments for affirmance are: first, that modern concepts of education carefully distinguish between teaching competence in various teaching fields rather than hold that 11 all teachers are alike ’ ’; second, that the statute has been for years construed administratively as contemplating ‘ ‘ area tenure ’ ’; and, third, that whatever the possible unfairness to this petitioner from an affirmance, reversal could produce State-wide chaos.

The order should be affirmed, without costs.

Froessel, J. (dissenting).

We dissent and vote to reverse. There is no statute or other appropriate authority for the creation or existence of the so-called 11 tenure areas ’ ’ established by rule in this case. As a consequence of this decision, a teacher, competent and capable in all respects, may, at the will of a school board, be effectively deprived of tenure even after years of service. In our opinion, the Legislature certainly did not intend such result.

Alternatively, we may add, even under the so-called ‘ area ’ ’ system, it may be found that petitioner acquired tenure. She was appointed an elementary teacher, was recommended for tenure by the appropriate supervisory officials at the end of a three-year probationary period, and later she taught remedial reading at the elementary level for two periods a week for a full school year. Her service in the elementary ‘ ‘ area'’ ’ may thus be found to exceed three years as required for tenure.

The orders of the Appellate Division and Special Term should be reversed, and the motion to dismiss the petition denied, with costs.

Judges Dye, Fuld and Burke concur with Chief Judge Desmond; Judge Froessel dissents in an opinion in which Judge Van Voorhis concurs; Judge Foster taking no part.

Order affirmed.