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

text:
    Carl N. Brenner et al., Appellants, v. City of New York, Respondent. Richard J. O'Neill, Appellant, v. City of New York, Respondent.
    Argued January 5, 1961;
    decided March 30, 1961.

      Victor J. Herwitz and Murray A. Gordon for appellants in the first above-entitled action.
    I. Appellants were not convicted of the charges for which they were suspended and are, therefore, entitled to full pay from the date of suspension pursuant to section 434a-20.0 of the Administrative Code of the City of New York. II. Appellants were suspended, not dismissed, and therefore retained title to their offices and the salaries incidental thereto, thereby entitling appellants to back pay for the period of their suspensions. (People ex rel. Flynn v. Woods, 218 N. Y. 124; People ex rel. Ryan v. French, 91 N. Y. 265; Fitzsimmons v. City of Brooklyn, 102 N. Y. 536; People ex rel. Nugent v. Board of Police Comrs., 114 N. Y. 245; Wardlaw v. Mayor of City of N. Y., 137 N. Y. 194; O’Neil v. State of New York, 223 N. Y. 40; Lehmann v. City of New York, 153 Misc. 834, 244 App. Div. 712.) III. The denial of back pay to appellants for the period of their suspensions constitutes, in effect, punishment and, therefore, violates section 434a-14.0 of the Administrative Code of the City of New York which limits punishment short of dismissal to the forfeiture of 30 days’ pay. IV. The suspensions of all appellants were invalid as violative of section 75 of the Civil Service Law in that said suspensions were without pay for periods in excess of 30 days. (Matter of Cugell v. Monaghan, 201 Misc. 607; Matter of Kelly v. Board of Educ., 234 App. Div. 239.) V. Appellants Brenner, Johnson, Keenan, Lewandoski, Nitecki and Vargas were improperly suspended in that no departmental charges were pending at the time of their suspensions.

      Murray A. Gordon and Victor J. Herwitz for appellant in the second above-entitled action.
    Appellant was not convicted of the matter which was the cause for his suspension and, pursuant to the express terms of section 434a-20.0 of the Administrative Code, he is entitled to back pay for the period of his suspension without pay.

      Charles E. Tenney, Corporation Counsel (Edward A. Doberman and Seymour B. Quel of counsel), for respondent.
    I. Having been convicted of charges made against them, plaintiffs may not recover salary for the period of their suspensions. It is immaterial that their punishment was less than dismissal. Section 884-1.0 of the Administrative Code does not apply to members of the police force of the City of New York. (People ex rel. Flynn v. Woods, 218 N. Y. 124; Lehmann v. City of New York, 153 Misc. 834, 244 App. Div. 712; Halpin v. City of New York, 54 Misc. 128, 146 App. Div. 881; Matter of Baker v. Kennedy, 6 Misc 2d 589; Matter of Flood v. Monaghan, 201 Misc. 560; Matter of Loos v. New York City Tr. Auth., 4 A D 2d 751; Paris v. City of New York, 189 Misc. 445; Matter of Whalen v. Corsi, 201 Misc. 39, 279 App. Div. 1113, 305 N. Y. 933; Meade v. City of New York, 193 Misc. 82; Matter of Webber v. Tunney, 186 Misc. 270; Matter of Cugell v. Monaghan, 201 Misc. 607; Matter of Hering v. Clement, 196 N. Y. 218; People v. Grawunder, 2 Misc 2d 126; Matter of Emerson v. Buck, 230 N. Y. 380.) II. Regardless of whether plaintiffs were suspended pending the disposition of criminal charges or of departmental charges, or both, they were convicted of part of the “ charges so preferred ” and were not in any sense acquitted as they claim. III. Denial of pay during suspension pending trial, pursuant to section 434a-20.0 of the Administrative Code, is not suspension as a form of punishment after conviction within section 434a-14.0. Even if it were, the latter section does not limit suspension, as distinct from a fine, to a maximum of 30 days. (Lehmann v. City of New York, 153 Misc. 834, 244 App. Div. 712; Halpin v. City of New York, 54 Misc. 128; Matter of Yannantuono v. Silverstein, 8 A D 2d 725.) IV. The time limit upon suspension pending determination of charges, contained in subdivision 3 of section 75 of the Civil Service Law, has no application to New York City policemen. (Matter of McElroy v. Trojak, 21 Misc 2d 145.) V. The prior or contemporaneous filing of written charges is not required in order to suspend New York City policemen, although such charges are necessary for departmental trial and conviction. Even if written charges were necessary for suspension, the suspension of the Brenner group on February 16, 1955 would have been validated by the filing of written charges on March 19, 1955. (People ex rel. Brennan v. Bingham, 57 Misc. 677; People ex rel. Langan v. Hayden, 80 Hun 397.)
   Dye, J.

In the first of the above-entitled actions the plaintiffs, members of the New York City Police Department, sue to recover pay allegedly wrongfully withheld during periods of their suspension, pending trial in Special Sessions, on charges brought against them of alleged violation of section 580 of the Penal Law (conspiracy). Following trial in Special Sessions, the plaintiffs were acquitted. O’Neill, the plaintiff in the second action, was charged not with conspiracy but with felonious assault, and was tried (and acquitted) not in Special Sessions but in Kings County Court. At the departmental trial, on amended charges, the respective plaintiffs were found by the Commissioner not guilty of certain of the amended specifications, and guilty as to certain others, of unlawfully and wilfully extending an unwarranted and unnecessary privilege to [a motorist] and of failing to take necessary police action against him ”, and a disciplinary sentence “ To forfeit thirty (30) days pay and placed on probation for a period of one year ” was imposed on each. The plaintiffs were not paid for the period of their suspension pending trial in Special Sessions.

Section 434a-20.0 of the Administrative Code of the City of New York authorizes suspension of members of the police force without pay, pending the trial of charges ” and then provides that in the event “ any member so suspended shall not be convicted by the commissioner of the charges so preferred, he shall be entitled to full pay from the date of suspension”. That language is clear and unequivocal and requires no construction. These petitioners, having been convicted following a hearing on departmental charges, do not bring themselves within the clear wording entitling them “ to full pay from the date of suspension ”. It is only when the member so suspended “ shall not be convicted ” that the right ‘1 to full pay ” becomes operative.

Nothing in section 434a-14.0 requires a different result. As the titles indicate, the sections are separate and distinct. One relates to suspension of members, the other to discipline. In the latter category the Commissioner is given the power, among others, (1) to forfeit or withhold pay as a punishment for a specified time or (2) to suspend without pay. As to (1), the forfeiture or deduction of pay, punishment is limited to “no more than thirty days’ salary ’’while, as to (2), suspension, there is no such limitation. The condition precedent entitling a member to pay during suspension is that he ‘ ‘ shall not be convicted * * * of the charges so preferred ”. There is a sound basis for adopting a distinction. Forfeiture or withholding of pay implies that the member is not suspended and that he continues to perform his services on the force. The framers of the section apparently felt that the forfeiture of 30 days’ pay was sufficient punishment for breach of discipline. However, we have a different situation when we deal with suspension upon charges, pursuant to section 434a-20.0. That implies that the official is relieved of duty during the interval. The Commissioner is accorded a broad discretionary power without limitations. The courts have consistently held that a member of the police force is not entitled to salary during suspension following a conviction on charges. That was the rule under the predecessor section 292 of the Greater New York Charter, which was re-enacted without substantial change as section 434a-20.0 (People ex rel. Flynn v. Woods, 218 N. Y. 124; Halpin v. City of New York, 51 Misc. 128, appeal dsmd. 146 App. Div. 881), and the rule has been continued as to section 434a-20.0 (Matter of Baker v. Kennedy, 6 Misc 2d 589; Matter of Flood v. Monaghan, 201 Misc. 560).

It seems clear that if the nature of the punishment rather than the fact of acquittal had been intended — and we do not so read the language used — it would have been a simple matter for the Legislature to have provided that if a member “ shall not be dismissed” he shall be entitled to full pay. Section 434a-20.0 is complete and self-contained. Any reference to sections relating to other city employees, using different language, such as section 884-1.0, may not be reconciled and should not be resorted to, as, quite obviously, the different enactments were designed to indicate a different legislative intent.

In the Brenner matter, we agree with the holding in the court below that the statute is satisfied so long as departmental charges are filed within a reasonable time after suspension and a trial is thereafter held.

The judgments appealed from should be affirmed, without costs.

Van Voorhis, J. (dissenting).

The police officers in the Brenner action were acquitted of charges in the Court of Special Sessions of conspiracy under section 580 of the Penal Law in connection with their handling of persons charged with motor vehicle violations. The officer in the O’Neill action was acquitted of felonious assault charges in the Kings County Court. They were found guilty, however, after departmental trials in disciplinary proceedings conducted by the Police Department, fined 30 days’ pay and placed on probation for one year. In addition to this loss of pay, however, they have been required to forfeit from $4,330 to $6,230 apiece in loss of pay accruing over much longer periods while awaiting their departmental trials. The fines which could not exceed 30 days’ salary under section 434a-14.0 of the Administrative Code of the City of New York were thus trivial in comparison with their total losses. These actions are to recover plaintiffs’ pay while under suspension awaiting departmental trials. It seems to us that they should recover. The Police Commissioner had undoubted power to suspend, without pay, any member of the police force pending the trial of charges (Administrative Code, § 434a-20.0). Plaintiffs might have been discharged from the force as a result of the departmental trials, in which event they could not have recovered salary accruing after suspension. Upon the other hand, however, “ Suspension from the performance of the duties of an office does not itself work a forfeiture of the right to the salary attached to the office during the period of suspension. (Wardlaw v. Mayor, etc., of N. Y., 137 N. Y. 194, 200.) ” (People ex rel. Flynn v. Woods, 218 N. Y. 124, 130.) And in People ex rel. Ryan v. French (91 N. Y. 265) it was held that the salary of a patrolman of the police force of the City of New York is incidental to his office and that he is entitled to his entire salary as long as he possesses the title to the office. On this principle, it would follow as matter of law that unless these officers were removed from the force they are entitled to their salaries during their periods of suspension subject only to forfeiting the maximum of 30 days’ salary permitted by section 434a-14.0 of the Administrative Code.

Section 884-1.0 of the Administrative Code directs that, except as otherwise provided by law, every head of an agency in New York City is empowered: “ In his discretion, to suspend for not more than one month without pay, any subordinate pending the hearing and determination of charges against such subordinate, or the making of any explanation, as the case may be. If the subordinate so suspended be removed, he shall not be entitled to salary or compensation after suspension. If he be not so removed, he shall be entitled to full salary or compensation from the date of suspension to the date of reinstatement, less such deduction or fine as may be imposed.” That section expressly entitles plaintiffs to the relief which they demand. No other or contrary disposition of their rights is made by section 434a-20.0 of the Administrative Code relating to suspension of members of the police force. That section states that ‘ ‘ If any member so suspended shall not be convicted by the commissioner of the charges so preferred, he shall be entitled to full pay from the date of suspension, notwithstanding such charges and suspension.” But this sentence neither adds to nor detracts from section 884-1.0 of the Administrative Code, which has been quoted, applicable to every head of an agency in New York City. Manifestly if the member of the police force is not convicted, he is entitled to full pay from the date of suspension. If he is convicted but is not removed from the force, he is not entitled to recover full pay from the date of suspension since an amount equivalent to not more than 30 days’ salary is deducted for the offense. Nothing in section 434a-20.0, or in any other provision of the Administrative Code, states that he shall not recover that much if he is not removed from the force. He cannot get full pay from the date of suspension in that event, since the amount of his fine must be deducted. He cannot recover any pay if he is removed. He is entitled to full pay from the date of suspension if he is acquitted. Nothing states, however, that, if he is fined but not removed, his maximum fine shall be multiplied many times for the reason that it has taken a long while for him to be reached for trial in the department. The direction that a member of the force shall receive full pay from the date of suspension if he is not convicted of the departmental charges creates no inference that he is not to be paid anything for the period of suspension if he is convicted but not removed from the force. It may be inferred that, in such event, he is not entitled to full pay from the date of suspension, for the reason that the amount of his fine must be deducted. After deduction of the fine, however, the express language of the Administrative Code and the principles of law require that he be reimbursed during the period of suspension minus any fine which has been imposed.

The judgment appealed from should be reversed in each action, with costs in all courts, and judgment directed in favor of appellants for the relief demanded in the complaint after deducting the amounts of plaintiffs’ fines.

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

In each action: Judgment affirmed.


source: Caselaw Access Project

author: Fuld, J.

license: Public Domain

text:
    Rand's Discount Company, Respondent, v. Universal C.I.T. Credit Corporation, Appellant.
    Argued February 21, 1961;
    decided March 30, 1961.

      James C. Sargent, Andrew F. Newell, Homer Kripke and Carl Felsenfeld for appellant.
    I. Appellant sold the 10 vehicles in issue to Lazzaro under conditional sale contracts which reserved appellant’s property in the vehicles as against respondent, a subsequent mortgagee thereon. (People v. Gluck, 188 N. Y. 167; American Can Co. v. United States Canning Corp., 12 Misc 2d 750, 15 Misc 2d 549; Matter of New York World-Tel. Corp. v. McGoldrick, 298 N. Y. 11; Baker v. Hull, 250 N. Y. 484;
      First Nat. Bank of Binghamton v. Hermann Co., 275 App. Div. 415; Chasnov v. Marlane Holding Co., 137 Misc. 332; Troy Sav. Bank v. Carobene Apts., 1 Misc 2d 359; Tchlenoff v. Jacobs, 267 App. Div. 908.) II. Appellant’s conduct constituted strict compliance with the New York statutory requirements for reserving property in goods conditionally sold for resale. Appellant should not be estopped by such conduct from asserting its property interest. (White v. McKallor Drug Co., 239 App. Div. 210; McNeil v. Tenth Nat. Bank, 46 N. Y. 325; Zendman v. Harry Winston, Inc., 305 N. Y. 180; Island Trading Co. v. Berg Bros., 239 N. Y. 229; Pennsylvania R. R. Co. v. Bank of United States, 214 App. Div. 410; Union Trust Co. of Rochester v. Oliver, 214 N. Y. 517.)

      Isidore Seltzer, Jerome B. Sherman and Stanley B. Lemler for respondent.
    I. Appellant is estopped by its own course of conduct from asserting its alleged title to the automobiles. (Zendman v. Harry Winston, Inc., 305 N. Y. 180; McNeil v. Tenth Nat. Bank, 46 N. Y. 325; Island Trading Co. v. Berg Bros., 239 N. Y. 229; Casey v. Kastel, 237 N. Y. 305; Pennsylvania R. R. Co. v. Bank of United States, 214 App. Div. 410; Fahlbusch v. Consumers Discount Corp., 159 Misc. 568; Albert v. Steiner Mfg. Co., 42 Misc. 522; Gilroy v. Everson-Hickok Co., 118 App. Div. 733, 190 N. Y. 551; Fitzgibbons Boiler Co. v. City of New York, 173 App. Div. 463; Ludden v. Hazen, 31 Barb. 650; Baker v. Hull, 250 N. Y. 484; First Nat. Bank of Binghamton v. Hermann Co., 275 App. Div. 415; Tchlenoff v. Jacobs, 267 App. Div. 908, 293 N. Y. 904.) II. Respondent’s title to the automobiles is protected by the Factor’s Act. (Freudenheim v. Gutter, 201 N. Y. 94; Kirsch v. Provident Loan Soc. of N. Y., 189 Misc. 898; G. Dewey Sullivan, Inc., v. H. Stern, Inc., 148 Misc. 235; Clark v. Flynn, 120 Misc. 474.) III. Respondent is protected under article 4 of the Personal Property Law (Uniform Conditional Sales Act) and appellant on the contrary is not so protected. (Scherl v. Flam, 129 App. Div. 561; People v. Gluck, 188 N. Y. 167; Baker v. Hull, 250 N. Y. 484; Cohen v. 1165 Fulton Ave. Corp., 251 N. Y. 24; Kommel v. Herb-Gner Constr. Co., 256 N. Y. 333; Juba v. General Bldrs. Supply Corp., 7 N Y 2d 48; United States v. American Trucking Assns., 310 U. S. 534.)
   Fuld, J.

Band’s Discount Company is engaged in the 11 finance business ”, Universal C.I.T. Credit Corporation, in “ the business of purchasing installment contracts resulting from credit sales of automobiles ”. The controversy between them is over their relative rights to 10 automobiles which had been in the possession of a used car dealer, Lazzaro Sales, Inc., and which were the subject of finance contracts between both Lazzaro and Band and Lazzaro and C. I. T.

Between July of 1955 and November of 1957, Band and its predecessor in interest filed three statements which identified Lazzaro as a prospective chattel mortgagor under the provisions of section 230-c of the Lien Law. On February 10, 1956, C. I. T. entered into an agreement with Lazzaro by which the former agreed to take assignments in the future of Lazzaro’s conditional sales contracts of new and used automobiles and by which Lazzaro promised to purchase ” the cars which C.I.T. might in the future repossess as assignee of these conditional sales contracts.

From time to time C.I.T. purchased conditional sales contracts from Lazzaro pursuant to their agreement and, between August, 1957 and March, 1958, C. I. T. delivered to Lazzaro 10 cars which it had repossessed. While each of these 10 cars was in Lazzaro’s possession and on its used car lot to be sold, and after inspecting the cars on the lot and examining a bill of sale to Lazzaro, Band, having no knowledge of the agreement between Lazzaro and C.I.T., gave Lazzaro a chattel mortgage on each of the 10 cars.

Sometime after Band took chattel mortgages on the ears concerned, Lazzaro defaulted under its agreement with O. I. T. and that corporation, having made demand on Lazzaro, retook possession of eight of the cars as envisaged by the agreement. Under an arrangement with Band by which the latter reserved its rights to the proceeds of the sale, C. I. T. sold these eight cars. A similar sale of the two remaining cars was made by Band which took them after Lazzaro’s default and, in this proceeding, C. I. T. seeks to recover the money realized as a result of Band’s sale of the two cars, while Band seeks to recover the proceeds of the former’s sale of the remaining eight cars.

The controversy was submitted to the Appellate Division upon a statement of agreed facts (Civ. Prac. Act, §§ 546-548) and that court found in favor of the plaintiff chattel mortgagee, Band, on the ground of estoppel. C. I. T. has raised significant questions concerning the effect of the Uniform Conditional Sales Act on common-law principles of estoppel which, although they were discussed in the Appellate Division in this case (10 A D 2d 240, 243-244) and on other occasions (see Tchlenoff v. Jacobs, 267 App. Div. 908, affd. 293 N. Y. 904; First Nat. Bank of Binghamton v. Hermann Co., 275 App. Div. 415), have never been satisfactorily or finally resolved. Under these circumstances, despite the fact that we believe Lazzaro was an agent and that C. I. T. was estopped from asserting its title under common-law principles (see Zendman v. Harry Winston, Inc., 305 N. Y. 180) as well as our Factors’ Act (Personal Property Law, § 43; see Freudenheim v. Gutter, 201 N. Y. 94), we shall, upon C. I. T. ’s urging, consider Lazzaro a conditional buyer and decide C. I. T. ’s rights under the Uniform Conditional Sales Act (Personal Property Law, art. 4, § 60 et seq.).

Section 65 of the Personal Property Law provides:

“Every provision in a conditional sale reserving property in the seller shall be void as to any purchaser from or creditor of the buyer, who, without notice of such provision, purchases the goods * * * before the contract or a copy thereof shall be filed as hereinafter provided, unless such contract or copy is so filed within ten days after the making of the conditional sale. This section shall not apply to conditional sales of goods for resale.”

And section 69 provides that, as to conditional sales for resale, “ the reservation of property shall be void against purchasers * * * for value in the ordinary- course of business * * * even though the contract or a copy thereof shall be filed ’ ’.

C. I. T. contends that it is protected against the chattel mortgagee’s assertion of interest despite the fact that it never filed its contract. The argument is that, on the one hand, the requirement of filing to perfect a security interest, found in section 65, is expressly made inapplicable to O. I. T. ’s interest by the last sentence of the section which recites that it ‘ ‘ shall not apply to conditional sales of goods for resale.” On the other hand, the argument continues, whereas purchasers for value in the ordinary course of business are protected under section 69 even though the conditional seller files his contract, a chattel mortgagee such as Band is not a purchaser in the regular course of business and does not have this protection. Ergo, concludes C.I.T., Band, as a chattel mortgagee of goods from a conditional buyer for resale, is not protected by either section 65 or section 69 and, consequently, C.I.T.’s reservation of a security interest was valid.

Plausible though this argument is, it must fail. It is true, of course, that Band, as a chattel mortgagee, is not a purchaser “ in the ordinary course of business ” and is not protected under section 69. This is evident from the ordinary meaning of the words involved, as well as from the report of the Law Bevision Commission which recommended the present legislation (N. Y. Legis. Doc. [1941], No. 65[J], p. 6).

Although Band is not covered by the provisions of section 69, however, it does come within section 65. This is so because the plain sense and purpose of the statutory scheme suggest that a good-faith purchaser who is not protected under section 69 should be protected under section 65. It is true that section 65 excludes from its coverage ‘ conditional sales of goods for resale ”, but this exclusion is designed to apply only to those cases in which the purchasers are protected under section 69. In other words, section 65’s final sentence, providing for this exclusion, must be read to mean ‘ ‘ conditional sales of goods for resale to purchasers in the ordinary course of business ”.

Or, to put the matter in another way, section 65’s exclusion of sales of goods for resale ” is designed to provide anyone who comes within its compass with the greater protections of section 69, but it is not designed to provide less protection than section 65 itself does. It would be the height of unreason to ascribe to the Legislature an intent to afford a chattel mortgagee of goods conditionally sold for resale no protection whatsoever; it would be the height of unreason to deprive such chattel mortgagee both of the benefits of filing under section 65 and of the benefits which exist despite filing under section 69. (See 1941 Report of N. Y. Law Rev. Comm., p. 242; N. Y. Legis. Doc. [1941], No. 65[J], p. 6, supra.)

In summary, had Rand been a purchaser in the ordinary course of business from a conditional buyer purchasing for resale, its interest would have been good as against C. I. T., the conditional seller, even if the latter had filed as provided by statute (Personal Property Law, § 69). However, even though Rand, as a chattel mortgagee, was not a purchaser in the ordinary course and even though Lazzaro was a conditional buyer for resale, C.I. T.’s security interest could only be protected by filing (Personal Property Law, § 65). Since C. I. T. failed to file and since Rand had no notice of its interest, Rand must prevail.

The judgment of the Appellate Division should be affirmed, with costs.

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

Judgment affirmed.

      . The Appellate Division expressed a contrary opinion in Tchlenoff v. Jacobs (267 App. Div. 908, supra) and, although we affirmed without opinion (293 N. Y. 904), we did so on a different ground. We actually rejected the view that section 69 protects a chattel mortgagee.


author: Chief Judge Desmond.

text:
    Harwood Pharmacal Co., Inc., Respondent, v. National Broadcasting Co., Inc., et al., Appellants.
    Argued March 30, 1961;
    decided April 20, 1961.

      Garleton G. Eldridge, Jr., and Frederic B. Coudert, III, for appellants.
    I. The alleged statements are not defamatory per se of plaintiff-respondent. (Adirondack Record v. Lawrence, 202 App. Div. 251; First Nat. Bank v. Winters, 225 N. Y. 47; Reporters’ Assn. v. Sun Print. & Pub. Assn., 186 N. Y. 437; Marlin Fire Arms Co. v. Shields, 171 N. Y. 384; Larsen v. Brooklyn Daily Eagle, 165 App. Div. 4, 214 N. Y. 713; Le Massena v. Storm, 62 App. Div. 150; Philipp Co. v. New Yorker Staats-Zeitung, 165 App. Div. 377; Hehmeyer v. Harper’s Weekly Corp., 170 App. Div. 459; Frawley Chem. Corp. v. Larson Co., 274 App. Div. 643; Stillman v. Paramount Pictures Corp., 2 A D 2d 18; Kennedy v. Press Pub. Co., 41 Hun 422; Maglio v. New York Herald Co., 93 App. Div. 546; Tobias v. Harland, 4 Wend. 537; Blens Chems. v. Wyandotte Chem. Corp., 197 Misc. 1066; Drug Research Corp. v. Curtis Pub. Co., 7 A D 2d 285, 7 N Y 2d 435.) II. Plaintiff-respondent cannot recover for libel by extrinsic fact. (O’Connell v. Press Pub. Co., 214 N. Y. 352; S. & R. Motors v. Gowens Motors, 207 Misc. 890; Kuhn v. Veloz, 252 App. Div. 515.) III. The allegations of the complaint are insufficient as allegations of special damage. (O’Connell v. Press Pub. Co., 214 N. Y. 352; Philipp Co. v. New Yorker Staats-Zeitung, 165 App. Div. 377; Faulk v. Aware, 3 Misc 2d 833, 3 A D 2d 703; Erick Bowman Remedy Co. v. Jensen Salsbery Labs., 17 F. 2d 255; Roger v. McCloskey, 305 N. Y. 75; Verbeck v. Duryea, 36 Misc. 242; Joseph v. Siegel, 200 Misc. 214, 279 App. Div. 574, 304 N. Y. 553.)

      Paul L. Ross for respondent.
    The statements uttered were libelous per se. (Ben-Oliel v. Press Pub. Co., 251 N. Y. 250; Drug Research Corp. v. Curtis Pub. Co., 7 N Y 2d 435; Marlin Fire Arms Co. v. Shields, 171 N. Y. 384; Le Massena v. Storm, 62 App. Div. 150; Samson United Corp. v. Dover Mfg. Co., 233 App. Div. 155; Hehmeyer v. Harper’s Weekly Corp., 170 App. Div. 459; Tobias v. Harland, 4 Wend. 537; Kennedy v. Press Pub. Co., 41 Hun 422; Larsen v. Brooklyn Daily Eagle, 165 App. Div. 4, 214 N. Y. 713; Morrison v. Smith, 177 N. Y. 366; Kingsbury v. Bradstreet Co., 116 N. Y. 211; Gross v. Cantor, 270 N. Y. 93; Eastern Paper & Box Co. v. Catz Amer. Co., 279 App. Div. 650; Krumholz v. Raffer, 195 Misc. 788.)
   Chief Judge Desmond.

In this libel suit defendants’ motion to dismiss the complaint for insufficiency was denied below but the Appellate Division granted defendants leave to appeal here, probably because of our decision in Drug Research Corp. v. Curtis Pub. Co. (7 A D 2d 285, revd. 7 N Y 2d 435).

Plaintiff is the manufacturer of a pharmaceutical product known as ‘ ‘ Snooze ’ ’" and all the defendants, it is alleged, had to do in one way or another with the production and exhibition ' on December 26, 1957 of a television program. During the telecast, so the complaint alleges, one of the performers displayed to his audience an object purporting to be a package of plaintiff’s product “ Snooze ” and said: “ ‘ Snooze ’, the new aid for sleep. Snooze is full of all kinds of habit-forming drugs. Nothing short of a hospital cure will make you stop taking Snooze. You’ll feel like a run-down hound dog and lose weight. ’ ’

The complaint says that these statements were false and defamatory, uttered and broadcast maliciously and with the intent of ridiculing and damaging plaintiff and its product. Damages in a large amount are demanded but no special damages are pleaded (see Seelman, Law of Libel and Slander, p. 388; Drug Research Corp. v. Curtis Pub. Co., 7. N Y 2d 435, 441, supra). Defendants insist that this pleading is insufficient because the allegedly televised statements are not defamatory per se of plaintiff itself as distinguished from its product “ Snooze ” and no special damages are set forth. The courts below were right in rejecting those contentions. Reasonably read, the broadcast words could be held by a jury to be as to plaintiff as well as to its product “of so defamatory a nature as to directly affect credit and to occasion pecuniary injury ’ ’ (Reporters’ Assn. v. Sun Print. & Pub. Assn., 186 N. Y. 437, 441; First Nat. Bank v. Winters, 225 N. Y. 47).

Since the Drug Research Corp. decision (7 N Y 2d 435, supra) is our most recent in this general field we will first discuss that case. Plaintiff Drug Research Corporation was the manufacturer of the disparaged pill. We dismissed its complaint because while the magazine article discussed plaintiff’s product and charged another corporation with fraudulent advertising and marketing practices as to the product, there was nothing in the article defamatory of plaintiff itself. “ The article in its entirety ”, we wrote (7NY 2d, p. 440) ‘1 is at variance with the allegation that it was written of and concerning the plaintiff.” All the members of this court were in agreement as to the applicable rule but we differed as to the meaning of the particular magazine article complained of.

The clear distinction between this case and Drug Research Gorp. (supra) is that this allegedly telecast language could readily be understood by the television audience as charging the manufacturer of “ Snooze ” with fraud and deceit in putting on the market an unwholesome and dangerous product (Larsen v. Brooklyn Daily Eagle, 165 App. Div. 4, affd. 214 N. Y. 713). Mere disparagement of the quality, design and performance of a rifle manufactured by plaintiff were held in the famous case of MarlinFire Arms Go. v. Shields (171 N. Y. 384) not to be libelous per se as to the manufacturer. But the Marlin opinion carefully pointed out (p. 390) that the words published by defendant, while they criticized the firearm, did not charge that ‘ ‘ plaintiff was guilty of any deceit in vending, or want of skill in manufacturing the gun.” Two older cases cited with approval in Marlin Fire Arms Co. v. Shields explain the rule in its entirety. Tobias v. Harland (4 Wend. 537, 543) held that “ when the words are spoken, not of the trader or manufacturer, but of the quality of the articles he makes or deals in, to render them actionable, per se, they must import that the plaintiff is guilty of deceit or malpractice in the making or vending of them.” The other similar decision approved by Marlin was Le Massena v. Storm (62 App. Div. 150), the opinion in which said (p. 154) that words defamatory of property are libelous per se as to its owner when they impute to him ‘ ‘ dishonesty, fraud, deception or other misconduct in his trade or business in connection with the property ’ ’ (for an interesting modern application of the rule see Tex Smith, Inc., v. Godfrey, 198 Misc. 1006).

We conclude that this complaint alleges the making of a statement which was libelous per se as to plaintiff within the settled rule that makes the pleading of special damages unnecessary when the ‘ ‘ language as a whole, considered in its ordinary meaning, naturally and proximately was [is] so injurious to the plaintiff that the court will presume without any proof, that his reputation or credit has been thereby impaired ” (O’Connell v. Press Pub. Co., 214 N. Y. 352, 358). It is not of importance that the television actor did not mention plaintiff by name. The theory of action is that the manufacturer was directly defamed and that plaintiff was the manufacturer.

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

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

Order affirmed, etc.


author: Foster, J.

text:
    The People of the State of New York, Appellant, v. Jasper Crossland, Respondent.
    Argued March 1, 1961;
    decided April 20, 1961.

      Frank 8. Hogan, District Attorney (Arthur G. Muhlstock, Richard G. Denser and H.. Richard Uviller of counsel), for appellant.
    I. Defendant’s guilt was proved beyond a reasonable doubt. II. The People’s expert should not be required to explain how the game of policy is played. (People v. Oak, 283 App. Div. 1018; People v. Pierson, 279 App. Div. 509; People v. Harris, 1 A D 2d 821; People v. Samuels, 302 N. Y. 163; People v. Leonard, 8 N Y 2d 60.)

      Herbert A. Le Grange and Henry K. 8chnitser for respondent.
    I. The People have the burden of showing how the game of policy is played. (People v. Oak, 283 App. Div. 1018; People v. Pierson, 279 App. Div. 509; People v. Harris, 1 A D 2d 821.) II. Defendant-respondent’s guilt was not proved beyond a reasonable doubt. (People v. Potash, 273 App. Div. 915; People v. Wolosky, 296 N. Y. 236; People v. Leon, 262 N. Y. 664.)
   Foster, J.

The People appeal by permission from an order of the Appellate Division, First Department, which reversed upon the law, without considering the facts, a judgment of the Court of Special Sessions of the City of New York convicting the defendant Crossland, after a trial without a jury, of the crimes of knowingly possessing policy writings, knowingly possessing articles commonly used in the game of policy, and receiving money in the game of policy, and ordered a new trial.

The information contained three counts as indicated above. At the trial, the People produced one witness, Patrolman Juan Carrion, of the New York City Police Department. He testified that from a telephone booth in a drugstore at 3181 Broadway, at about 11:15 a.m., on August 12, 1959, he saw one Davis hand Crossland a white slip of paper and money in the form of a bill. Crossland received the money and placed it in his pocket. Patrolman Carrion then came out from the phone booth and approached the defendants, whereupon Davis removed the slip from the person of Crossland, and threw it into a nearby bucket of water. The patrolman retrieved the paper from the bucket, and it separated into three parts. The pieces of paper comprising the slip were introduced into evidence. Defense counsel stipulated to the witness’ qualifications as an expert on policy, and Carrion then testified that in his opinion the writing on the slip of paper represented 17 “ plays ” on mutuel race horse policy.- Defendant Davis testified in his own behalf and denied any wrongdoing.

The issue before us is whether or not a police officer, testifying as an expert in a prosecution for possession of policy slips (Penal Law, §§ 974, 975), must explain, as part of the People’s ease, the technical basis of his opinion that the papers in question are in fact policy slips and the mode of operation of the particular policy game. The Appellate Division, citing People v. Pierson (279 App. Div. 509); People v. Oak (283 App. Div. 1018), and People v. Harris (1 A D 2d 821), has held that such an explanation is a sine qua non of the People’s case, and has reversed the conviction.

The cases cited unquestionably tend to support the decision below, but we think those cases were decided improperly and the doctrine they espouse should be rejected.

In both the Pierson and Oak cases, a police officer, having qualified as an expert, testified as to conversations he had heard involving the defendants, and then stated that in his opinion they related to policy wagers. The Appellate Division, in reversing the convictions in both cases, cited People v. Samuels (302 N. Y. 163) and People v. Strait (148 N. Y. 566) for the proposition that: “In this type of case, the courts should be advised not only of the facts upon which an expert bases his conclusions, but also an explanation of those facts in order to determine whether or not such conclusions are well founded. If such facts are not declared there is no basis upon which the conclusions of the expert can be * * * questioned” (People v. Oak, supra, p. 1018; People v. Pierson, supra, p. 513).

In those situations, however, the rule of Samuels and Strait was improperly extended beyond its original scope and meaning. Samuels and Strait merely reaffirmed the principle that an opinion of an expert must be based upon facts which are produced in evidence before the jury (People v. Strait, 148 N. Y. 566, 570, supra; People v. Samuels, 302 N. Y. 163; 171-172, supra). Indeed, in the Strait case, we specifically held that an opinion as to the defendant’s sanity was inadmissible, when based “ upon the story told by the defendant himself which is not here in evidence. ’ ” We remarked that “ The witness was an expert on the diseases of the mind, but he was not an expert on determining the facts, where such facts had to be obtained from the statements of others ” (supra, p. 570).

And in People v. Samuels (supra, opinion per Fboessel, J.) we held that an expert opinion as to the sanity of the defendant was improperly received, when based upon a hypothetical question containing facts which were not properly in evidence before the jury. There, various of the documents which provided the basis of the hypothétical question were not legitimate parts of the hospital record and ‘ should in no event have been admitted as part of the hospital record they were not made in “ the regular course ” of the hospital’s business (302 N. Y. 163, 171).

In the instant case, however, the very document upon which the opinion was based was in evidence before the court. The expert testified that in his opinion it represented 17 “plays ” of “mutuel race horse policy”. The facts upon which the opinion was based inhered in the object in evidence.

On cross-examination, defense counsel might have probed the technical basis of the expert’s opinion. He might have inquired into the operation of “mutuel race horse policy”, the method of wagering, and the method of determining the winning number. This he did not do. “ The data on which an expert rests his specific opinion (as distinguished from the facts which make him skillful to form one at all) may of course he fully inquired into upon cross-examination(3 Wigmore, Evidence [3d ed.], § 992, and cases cited therein; emphasis supplied.)

It is true that the technical basis of the opinion might have been inquired into on direct examination (2 Wigmore, Evidence, § 665; Venuto v. Lizzo, 148 App. Div. 164; Johnson Serv. Co. v. Maclernon, 142 App. Div. 677), but such inquiry was, not an essential part of the People’s case.

There is little merit to the argument that the requirement of the Pierson and Oak cases {supra) is necessary to familiarize the courts with the nature of policy play, for the courts today generally are familiar with the operation of the “numbers rackets ” and, in most instances, the intricacies are explained upon cross-examination of the expert by defense counsel. What we have said here applies equally to the cases of People v. Brod (9 N Y 2d 842) and People v. Colon (9 N Y 2d 842) decided herewith, and dictates an affirmance of the judgment of conviction in those cases.

Accordingly, the order appealed from should be reversed and the matter remitted to the Appellate Division for its determination on the facts (Code Grim. Pro., §§ 543-a, 543-b).

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

Order reversed, etc.


author: Dye, J.

text:
    The People of the State of New York, Respondent, v. Richard Bianculli and Guiseppo D’Orio, Appellants.
    Argued March 27, 1961;
    decided April 27, 1961.

      Jeremiah F. Gross for Richard Bianeulli, appellant, and J oseph Aronstein for Guiseppo D ’Crio, appellant.
    I. The court erred in permitting the District Attorney to ask police officers what questions were put to each of the appellants when the District Attorney knew that neither of the appellants had made any confessions or admissions. (People v. Travato, 309 N. Y. 382.) II. The trial court committed serious error in the charge to the jury at the close of the trial, during the trial and in the denials of requests to charge. (People v. Craig, 2 A D 2d 804; People v. Bennett, 49 N. Y. 137; People v. Harris, 306 N. Y. 345; People v. Feldman, 299 N. Y. 153; People v. Taddio, 292 N. Y. 488; People v. Leyra, 1 N Y 2d 199.) III. The rulings and actions of the trial court deprived appellants of a fair trial. (People v. Cashin, 259 N. Y. 434; People v. Hines, 284 N. Y. 93; People v. Werblow, 123 Misc. 204; People v. Nisonoff, 293 N. Y. 597; People v. Hartnett, 124 Misc. 418; Langley v. Wadsworth, 99 N. Y. 61; People v. Severance, 67 Hun 182; Becker v. Koch, 104 N. Y. 394; People v. Keough, 276 N. Y. 141; People v. Elbroch, 250 App. Div. 583; People v. Stiglin, 238 App. Div. 407; People v. Wolf, 183 N. Y. 464; People v. Smith, 172 N. Y. 210; People v. Pierce, 218 App. Div. 254; People v. Wansker, 108 Misc. 84; People v. Mleczko, 298 N. Y. 153.) IV. The evidence adduced upon this trial failed to establish the guilt of either or both appellants of the crime of grand larceny, second degree, as charged in the indictment. V. The People failed to adduce evidence sufficient to establish the crime of petit larceny, as alleged in the indictment, beyond a reasonable doubt, as a matter of law. VI. The court erred in admission of the wire-tap conversations of October 3, 1957 and October 2, 1957. (People v. Defore, 242 N. Y. 13.) VII. The People’s Exhibits 14A and 16 were illegally and improperly received in evidence. (Frank v. Cossitt Cement Prods., 197 Misc. 670.) VIII. The trial court erred in the admission in evidence of scratch notes and good copy of Detectives Hawd and Lynch. IX. The court erred in admitting the wire-tap conversation of October 2, 1957 between Bianculli and an unknown person. (People v. Davis, 56 N. Y. 99; People v. Connolly, 253 N. Y. 330; People v. Marshall, 306 N. Y. 223.) X. The court erred in the admission in evidence of the latent fingerprint of appellant D ’Orio. XI. The court erred in sustaining objection to admission in evidence of appellant’s (D’Orio) jacket. (People v. Birch, 6 A D 2d 28.) XII. The court erred in admitting the testimony of Detective Bugeresta called by the People as an expert witness. (People v. Spillman, 309 N. Y. 295.)

      Frank S. Hogan, District Attorney (Peter B. Rosenblatt of counsel), for respondent.
    I. Defendants’ guilt was proved beyond a reasonable doubt. (People v. Pesky, 254 N. Y. 373; People v. McCarthy, 250 N. Y. 358; People v. Mechanic, 5 N Y 2d 991; People v. Repola, 280 App. Div. 735, 305 N .Y. 740; People v. Nowicki, 285 App. Div. 1114; People v. Nelson, 283 App. Div. 1116; People v. De Groat, 5 A D 2d 927, 8 A D 2d 664; People v. Goggin, 256 App. Div. 995; People v. Murphy, 256 App. Div. 995.) II. The court’s rulings on defendants’ right to remain silent after their arrest were proper. (People v. Pignataro, 263 N. Y. 229; People v. Lee, 4 A D 2d 770, 4 N Y 2d 843, 358 U. S. 845; People v. Mleczko, 298 N. Y. 153; People v. Namer, 309 N. Y. 458; People v. Travato, 309 N. Y. 382; People v. Abel, 298 N. Y. 333; United States v. Chiarella, 184 F. 2d 903; People v. Rutigliano, 261 N. Y. 103.) III. The admission of evidence derived from wire taps was proper. (People v. Feld, 305 N. Y. 322; Matter of Pogor v. Cannella, 3 Misc 2d 99; People v. Hudson Val. Constr. Co., 217 N. Y. 172; People v. Vario, 165 Misc. 842; People v. Pogor, 3 N Y 2d 836, 3 N Y 2d 941; People v. Gellard, 269 App. Div. 974, 296 N. Y. 516; Murphy v. Jack, 142 N. Y. 215; People v. Betts, 272 App. Div. 737; People v. Colon, 281 App. Div. 354; People v. Reynolds, 300 N. Y. 616; People v. O’Keefe, 280 App. Div. 546, 281 App. Div. 409.) IV. Other rulings of the trial court condemned by defendants did not deprive them of a fair trial. (People v. Taylor, 410 Ill. 469; People v. Mendes, 3 N Y 2d 120; People v. Perrin, 224 App. Div. 546, 251 N. Y. 509; People v. Ohanian, 245 N. Y. 227; People v. Knapper, 230 App. Div. 487; Zikos v. Zikos, 283 App. Div. 822.) V. The court’s charge and its refusal to charge certain requests of defense counsel were proper. (People v. Trimarchi, 231 N. Y. 263; People v. D’Anna, 243 App. Div. 259; People v. Harris, 136 N. Y. 423.)
   Dye, J.

The defendants have been convicted, after a jury trial, of grand larceny in the second degree, petit larceny, conspiracy and possession of burglar’s tools, committed in the course of a wholesale pilfering of dimes from public parking meters.

We have no hesitancy in saying that on this record the evidence is sufficient to sustain the defendants’ convictions. However, there must be a reversal and a new trial ordered for substantial error in the admission of evidence, not cured by either the rulings made at the time or the subsequent charge to the jury.

The proof establishes that on the evening of October 3, 1957, pursuant to certain wire-tap information, the arresting officers went to the vicinity of Third Avenue and 43rd Street, New York City, and there observed the defendants, who appeared to be tampering with parking meters. They kept them under surveillance and followed them to 56th Street, where they were seen to throw something into a trash basket. The defendants were then overtaken and arrested. At the time Bianculli had in his possession, among other things, 2,177 dimes and a key designed to open parking meters. A paper bag found in the trash basket at 56th Street contained 15 coin canisters; another coin canister was retrieved from a trash basket near 46th Street. On the trial, the People were allowed to show as part of their direct case that during the police interrogation, immediately after arrest, the defendants either had refused to answer a series of incriminating questions or had remained mute as well as having insisted upon consulting counsel. This showing was not confined to an isolated instance or an inadvertent improper question that under certain circumstances might well be overlooked as not affecting a substantial right of a defendant but, on the contrary, was part of a persistent and repeated course of conduct which may not be overlooked. The defendants’ numerous objections were overruled and their motions for a mistrial denied with variously worded rulings to the general effect that questions were not evidence and that whether or not anyone said anything under certain circumstances was something for the jury to consider.

Persistent and repeated introduction of evidence of this type, for whatever purpose, cannot help but have the effect of implanting in the minds of the jury the impression that defendants’ refusals to answer were so inconsistent with innocence as to amount to admissions of guilt.

This case falls squarely within our recent ruling in People v. Travato (309 N. Y. 382) wherein we reiterated the right of a defendant to remain silent when questioned as to matters which might be used against him (cf. People v. Rutigliano, 261 N. Y. 103).

Since there is to be a new trial, it is unnecessary to devote any time to other alleged errors except to say that the wire-tap order issued by the Court of General Sessions was not improper merely because the subject telephone was located outside of New York County (People v. Feld; 305 N. Y. 322). We also wish to point out that the theft of the canisters, a lesser offense, should be deemed merged in the greater offense, the theft of the dimes.

The judgments appealed from should be reversed and a new trial ordered.

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

Judgments reversed, etc.


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

text:
    Rose Badigian, Individually and as Guardian ad Litem of Gregory R. Badigian, Appellant, v. George Badigian, Respondent.
    Argued March 21, 1961;
    decided April 27, 1961.

      William McKelvey for appellant.
    Where no need exists for parental immunity, the court should not extend it as a mere gratuity. (Rozell v. Rozell, 281 N. Y. 106; Drobner v. Peters, 232 N. Y. 220; Mertz v. Mertz, 271 N. Y. 466; Dunlap v. Dunlap, 84 N. H. 352; People v. Morton, 284 App. Div. 413; Oppenheim v. Kridel, 236 N. Y. 156; People v. Randolph, 2 Parker Cr. Rep. 174; Murphy v. Murphy, 206 Misc. 228.)

      James J. McLoughlin and Anthony J. De Cicco for respondent.
    In this State the rule is well established that an unemancipated infant is barred from maintaining an action against his parent for injuries caused by ordinary negligence. (Cannon v. Cannon, 287 N. Y. 425; Sorrentino v. Sorrentino, 248 N. Y. 626; Siembab v. Siembab, 284 App. Div. 652; Epstein v. Epstein, 283 App. Div. 855; Rozell v. Rozell, 281 N. Y. 106; Murphy v. Murphy, 206 Misc. 228.)
   Chief Judge Desmond.

This is a negligence action brought by a mother on behalf of her three-year-old child against the father for negligently causing personal injuries to the child. The father, it is alleged, left the family car unlocked in a parking lot and the child released the brakes and was hurt when he tried to jump from the vehicle. There is no charge of misconduct which could be considered wanton or willful (see Siembab v. Siembab, 284 App. Div. 652). The complaint has been dismissed for insufficiency. We must affirm the dismissal unless we are to change the settled New York rule that an unemancipated minor child has no right of action against his parent for nonwillful injuries (Sorrentino v. Sorrentino, 248 N. Y. 626; Cannon v. Cannon, 287 N. Y. 425).

There is no decision in any American or English appellate court sustaining such a cause of action as is here alleged. The writers who attack the no-liability rule misunderstand its basis and purpose. It is a direct application of a concept that cannot be rejected without changing the whole fabric of our society, a fundamental idea that is at the bottom of all community life. The basic principle is that children and parents form a unique kind of social unit different from all other groups.

The courts have already provided different treatment for situations where the injury occurs outside the normal familial relationship such as where the injury is wanton and intentional or where the tort is committed in the course of the parent’s business. Perhaps some other special provision should be made for cases where disability extends beyond infancy, but it would be a great oversimplification to attempt to deal with those instances by a simple reversal of the settled rule. Inquiry and planning for any such protection is beyond the competence of a court and belongs with the Legislature.

The statutory compulsion on all New York automobile owners to carry insurance against liability is hardly a sufficient ground for destroying our concept of the family unit. When New York State in 1937 changed the old rule of nonliability of a husband to a wife (or a wife to a husband) for personal injuries, it was done in the form of statutes (Domestic Eelations Law, § 57; Insurance Law, § 167, subd. 3) which created a cause of action for the injured spouse but at the same time provided that automobile liability insurance policies would not cover such a liability unless express provision therefor was written into the policy. We are informed that no insurance company writes such “ spouse coverage ”.

Automobile liability insurance premiums, like all other insur'ance premiums, are based on recent experience and, since there is no loss experience as to injuries to a child caused by its parent’s negligence, the current rates do not contemplate such indemnity. Thus it is incorrect to say that the existence of automobile liability insurance provides a fund available for the payment of such a claim as is sought to be enforced in this suit.

The judgment should be affirmed, without costs.

Fuld, J. (dissenting).

If the present decision were necessary to preserve the integrity of the family, I would subscribe to it. But I do not believe that it is. In my opinion, the doctrine of family immunity, which underlies the holding, is based on dubious prophecy and, at least when applied to deny redress in automobile negligence cases, is wrong in principle and at odds with justice and modern-day realities.

The family immunity doctrine, without precedent in English common law (see Prosser, Law of Torts [2d ed., 1955], p. 675; McCurdy, Torts Between Persons in Domestic Relation, 43 Harv. L. Rev. 1030, 1059), was first announced in 1891 in Mississippi. (See Hewlett v. George, 68 Miss. 703.) There the tort was willful. A minor daughter sued her mother for maliciously confining her in an insane asylum. Public policy, it was held, forbade the suit; to permit such an action would undermine parental authority and disrupt domestic harmony. The decision was followed in Tennessee and in Washington. In Tennessee, a minor sued father and stepmother for cruel and inhuman treatment. (See McKelvey v. McKelvey, 111 Tenn. 388.) In Washington, a 15-year-old daughter sued her father who had ravished her. (See Roller v. Roller, 37 Wash. 242.) The court denied a right of action to the child. To allow a remedy in such a case would, it was said, open the door to one for injuries which were negligent, since in principle no distinction could be made between them. The peace of the family would be marred if the conduct of the parent could thus be challenged in a civil court.

The immunity doctrine soon spread to cases involving negligently caused injuries without any change in the underlying reasoning. (See Taubert v. Taubert, 103 Minn. 247; Small v. Morrison, 185 N. C. 577; Matarese v. Matarese, 47 R. I. 131; Wick v. Wick, 192 Wis. 260.) And in 1928, this court adopted the rule exempting parents from liability to an unemancipated minor for personal injuries caused by their negligence in operating an automobile (see Sorrentino v. Sorrentino, 248 N. Y. 626); no opinion was written and the vote, 4 to 3 for affirmance, of a no-opinion Appellate Division decision, found Cabdozo,, Oh. J., and Crane and Andrews, JJ., dissenting. Fourteen years later, relying upon the Sorrentino case, the court reaffirmed the doctrine. (See Cannon v. Cannon, 287 N. Y. 425.)

A rule which so incongruously shields conceded wrongdoing bears a heavy burden of justification. For me, the burden is not met either by the early rationale or by other arguments more recently advanced. A parent who by negligence injures his minor child surely commits a civil “ wrong ” in the sense that there is neither lawful right nor privilege to inflict the injury. And, conversely, the law does not, as I understand it, deliberately carve an exception in favor of parents out of the right of a minor child to be secure from negligent harm to his person.

There is a wrong, it may be said, but the remedy is withheld for reasons of fundamental public policy, namely, to prevent undermining parental authority and disrupting the peace of the family. That principle might be compelling in this case if consistently and evenhandedly applied whenever a child sues his parent. But, since innumerable exceptions and qualifications to its application have evolved, it can no longer serve as a forceful or valid basis for denying liability.

First, the doctrine does not apply if the child is of legal age. If filial duty or family peace is the test, it is impossible to understand why a distinction should be made between minor children and those who are adult. The Biblical command, “ Honor thy father and thy mother”, does not end at 21. Yet there is no doubt that the grown son or daughter, the emancipated minor, may sue the parent for negligent wrongs. (See Wood v. Wood, 135 Conn. 280; Taubert v. Taubert, 103 Minn. 247, supra; Lancaster v. Lancaster, 213 Miss. 536; Groh v. W. O. Krahn, Inc., 223 Wis. 662.)

Nor is it solely to a child of adult years that the immunity yields. Even an unemancipated minor child may sue his parent for an injury to his property. (Domestic Relations Law, §§ 80, 83; see Lamb v. Lamb, 146 N. Y. 317; 1 Harper & James, Law of Torts [1956], § 8.11, p. 647; Prosser, Law of Torts [2d ed., 1955], p. 675; Eversley, Domestic Relations [4th ed., 1926], p. 571; McCurdy, Torts Between Persons in Domestic Relation, 43 Harv. L. Rev. 1030, 1057.) Indeed, the books are filled with cases in which children have litigated with their parents over contracts, wills, inheritances and settlements. If a child may sue its father because of a broken contract, why, it has been asked, may he not sue him because of a broken leg? As the high court of Ohio put it (Signs v. Signs, 156 Ohio St. 566, 576), “It seems absurd to say that it is legal and proper for an unemancipated child to bring an action against his parent concerning the child’s property rights yet to be utterly without redress with reference to injury to his person.” And, the court continued, “ It is difficult to understand by what legerdemain of reason, logic or law such a situation can exist or how it can be said that domestic harmony would be undisturbed in one case and be upset in the other.”

It is likewise difficult to understand the other qualifications to the rule of parental immunity. Thus, there is no doubt today that an unemancipated minor may maintain an action for personal injuries willfully or intentionally inflicted. (See Cannon v. Cannon, 287 N. Y. 427, 429, supra; Siembab v. Siembab, 202 Misc. 1053; Nudd v. Matsouhas, 7 Ill. 2d 608; Mahnke v. Moore, 197 Md. 61; see, also, Prosser, Law of Torts [2d ed., 1955], p. 677.)

In addition, a child may actually, albeit indirectly, obtain redress from his parent for personal injuries resulting from an automobile accident if the child can find and sue a third person who in turn transfers his liability to the parent. A common case of this sort is one in which the father inflicts the injury while driving a vehicle in the course of his employment. The child recovers from his father’s employer ' and thereupon the latter obtains indemnity from the father in the full amount of the child’s recovery. (See Chase v. New Haven Waste Material Corp., 111 Conn. 377; Briggs v. City of Philadelphia, 112 Pa. Super. Ct. 50; cf. Schubert v. Schubert Wagon Co., 249 N. Y. 253, 257 [wife permitted recovery against husband’s employer].)

And, finally, an infant may sue his parent directly for personal injuries caused by the father’s careless operation of a car, provided only that it was being used in connection with the father’s business. (See Dunlap v. Dunlap, 84 N. H. 352; Signs v. Signs, 156 Ohio St. 566, supra; Worrell v. Worrell, 174 Va. 11; Borst v. Borst, 41 Wn. 2d 642; Lusk v. Lusk, 113 W. Va. 17.)

A father who cripples his child through reckless management of his car must respond in damages if the child is 21 and, as I have stated, I cannot believe that the peace of family life requires that the cripple go through life unaided by our law if he was hurt while under age. Nor can I believe that there will be a mad rush by children to extract money from their parents if once the barriers are down. The family life itself, the life to be preserved in all its communal solidarity, it seems to me, supplies the answer. Those parents who are worthy of affection will make provision for the crippled child to the extent of their ability without the spur of legal process. The child will be unwilling to sue, will have no need or thought to sue. What is right will be done, and it will be done out of a love that is stronger than the law. There may be some parents who are selfish or indifferent or cruel; if they turn the crippled child adrift when his minority is over, he will be a drag upon society and a burden to himself. We should say that they may not do so with impunity. There are other parents who, though willing, may be helpless. We should hold that the child is not to be denied the benefit of insurance that would be available for a stranger.

It is not too much to say that the broad and numerous qualifications and exceptions to the family immunity doctrine have almost swallowed the rule. (See Hastings v. Hastings, 33 N. J. 247, 260-261, per Jacobs, J., dissenting, supra.) It is quite likely that this came about when the realization dawned that, when a child sues a parent, family harmony must already be at so low an ebb that it is grotesque to deny the child a remedy in the name of preserving that harmony. So far as the related argument that parental authority must be preserved by denying the child his right of action, I fail to see its applicability to a case such as the one before us. (See, e.g., Borst v. Borst, 41 Wn. 2d 642, 651, supra.) Surely, causing a child harm by negligent operation or maintenance of an automobile involves no attribute of parental control or filial obedience. In short, the public policy rationale for the immunity is spurious, whether tested by precedent or by reason.

New York now requires automobile liability insurance. I recognize that the presence of insurance does not create liability but, since it was fear that domestic peace and tranquility would be destroyed and the family disrupted which gave rise to adoption of the family immunity doctrine, its existence is a factor to be taken into account in considering whether or not the doctrine should be perpetuated. (See James and Thornton, The Impact of Insurance on the Law of Torts, 15 Law & Contemp. Prob. 431, 432; James, Accident Liability Reconsidered: The Impact of Liability Insurance, 57 Yale L. J. 549, 553; Note, Parent-Child Tort Liability and Compulsory Insurance, 33 St. John’s L. Rev. 310.) It has ushered in new tendencies and habits which may not be ignored in any estimate of values. Insurance against accidents, once solely a contract of indemnity, a means of reimbursement for the doer of the wrong, has lost much of its ancient quality and has in effect become insurance for the protection of the sufferer. The vast majority of accidents of this type are now defended by insurance companies in the names of nominal defendants. A method has been thus provided for minimizing loss by distributing the burden.

Certainly, where there is insurance, it becomes more difficult to justify the stock arguments advanced against recovery, to say that recognition of a right of action destroys our concept of the family unit. Gone is the fear of impoverishing the family, of impairing parental discipline or of disrupting domestic harmony. The child’s suit, if successful, will provide a fund to care for its injuries which might otherwise be unavailable. Far from upsetting family ties, the suit is actually an incident in the course of a family’s provident management of its affairs. (See, e.g., Dunlap v. Dunlap, 84 N. H. 352, 368, supra.)

The real reasons for the persistence of the doctrine must be sought elsewhere. It is said that to recognize a right of action in the child would invite an unseemly antimony between the law within the family and the law without, and that there is something indecent in the spectacle of a child suing his father, with his mother as guardian ad litem. But, as I have already shown, the law suffers many such “ spectacles ” under the numerous exceptions to the family immunity doctrine.

Since the insurer is the real defendant, it has been said that there is danger of fraud and collusion between parent and child. One may not, of course, deny the hazard, but such a danger, being present in all liability insurance cases, furnishes reason not for denial of a cause of action, but for added caution on the part of court and jury in examining and assessing the facts. The danger is precisely the same when the injury is to a child who has attained 21 or to a brother or sister or, to a less degree, to a friend. In Rozell v. Rozell (281 N. Y. 106), this court actually rejected just such an argument when it upheld the right of a 12-year-old youngster to sue his 16-year-old sister who had injured him while driving an automobile covered by liability insurance (p. 113): “ No warrant is found for any.prediction that brothers and sisters will flock into the courts on fictitious claims through mere judicial recognition of the right of one to sue the other in personal injury cases. Common honesty inherent in the family unit presents an effective barrier. If it should appear that there is any foundation for the suggestion, a means of protection may be found in diligence on the part of the insurance carriers to ferret out and expose the fictitious claims and reliance may be placed on our courts and juries to detect and prevent a fraud.”

The decision to be made herein has little, if anything, to do with a case where the child is injured in the kitchen or in some other room making up the family establishment. There may be injustice, as well as difficulty, in applying the standardized duty of the reasonable man in such a situation. Heed, it may well be, must be given to excuses to which the law declines to listen when the victim is a business visitor. The house or the apartment may be out of order or in need of repair, but, there is force to the query, what is the father to do if there is no money to repair it? It may be unsanitary and in poor condition, but it is futile to seek a better one when it is beyond the father’s financial ability to pay the higher rent. Those who share the family life must of necessity share its fortunes, its privations and hardships, as well as its gains. In ancient times, “ the Family, in fact, was a Corporation; and [the pater familias] was its representative or, we might almost say, its Public officer.” (Maine, Ancient Law [1st Amer. ed., 1864], p. 178.) Something of the same concept is present today. In the ordering of the home, the father is still the judge, or, better perhaps, the king, not liable for error while he acts in good faith, without malice or indifference.

I have remarked these problems but to exclude them. What concerns us now is not the parent’s liability to his infant child for failing to put the house in order. The question to be answered is that of the parent’s liability for negligence, both personal and active, negligence which may amount to crime (cf. People v. Angelo, 246 N. Y. 451), and which, if shown to one not a child, even a guest or a licensee, would be at least a civil wrong. The rule is to cover cases where a father runs his child down, or spills him into the street, by careless driving of his car, or otherwise fails to properly maintain the car, and thereby cripples him for life. Nothing in the structure of the family as established by decision or tradition requires us to say of such conduct that it is to be classified as lawful, as something other than a wrong. If it is a wrong, should it, I repeat the question, be one without a remedy?

In answer, it is urged that, if there is to be a remedy, it must be given by the Legislature, if there is to be change, it may not be effected by the courts. This court has heard such arguments before and has answered them by saying that, where the rule is court made, it may be court modified if reason and a right sense of justice recommend it. (See Greenberg v. Lorenz, 9 N Y 2d 195; People v. Spitaleri, 9 N Y 2d 168; Bing v. Thunig, 2 N Y 2d 656; Woods v. Lancet, 303 N. Y. 349.) Such, in my opinion, is the case before us, and we should not be deterred in pursuing such a course by a fear that decision in this case will be binding in cases—which may never eventuate—involving household accidents. Although, as I have already stated, insurance does not create liability where none exists, its presence in automobile accident cases furnishes a good reason for refusing to persist in honoring a doctrine long after the conditions which called it into being have passed.

The problem, in short, comes to this: A child is seriously injured by his father’s careless operation or maintenance of his automobile. As the law now stands, the judgment recovered against the parent is more than likely, in the vast majority of cases, to be paid by an insurer. If the crippled child may have the benefit of this insurance, a fund will be supplied the family to provide for him. If the fund is cut off, cripple as well as parent will have to stagger beneath the load. To tell them that the pains must be endured for the peace and welfare of the family is something of a mockery.

I would reverse the summary judgment dismissing the complaint and give the child his day in court.

Judges Dye, Froessel, Van Voorhis, Burke and Foster concur with Chief Judge Desmond; Judge Fuld dissents in a separate opinion.

Judgment affirmed.

      . And, I would add that, although the rule has been accepted by almost every court which has considered the problem, it has been “ universally condemned in the thoughtful professorial and student writings on the subject.” (Hastings v. Hastings, 33 N. J. 247, 254, per Jacobs, J., dissenting.) Many of these writings are listed in Judge Jacobs’ opinion (33 N. J., at pp. 254-255).

        . Although Borst v. Borst (41 Wn. 2d 642, supra) differs somewhat from the present ease in that the father’s automobile was being operated in connection with his business, the court’s statement is most pertinent (p. 651): “A second reason frequently advanced in support of the immunity rule is that actions by children against their parents tend to undermine parental authority and discipline. [Cases cited.] The field of parental control and discipline covers such matters as the maintenance of the home, chastisement, and no doubt other activities which need not here be delineated. But when the parental activity whereby the child was injured has nothing to do with parental control and discipline, a suit involving such activity cannot be said to undermine those sinews of family life.”


author: Burke, J.

text:
    The People of the State of New York ex rel. Edward B. Brown, Appellant, v. W. Cecil Johnston, as Director of Dannemora State Hospital, Respondent.
    Argued March 20, 1961;
    decided April 27, 1961.

      Ephraim London and Jordan Derwin for appellant.
    I. The confinement of the prisoner with mental defectives and insane persons is a cruel and unusual punishment prohibited by the Federal and State Constitutions. (Trop v. Dulles, 356 U. S. 86; People ex rel. Cirrone v. Hoffmann, 255 App. Div. 404; People ex rel. Marshall v. Webster, 266 App. Div. 637; Matter of Medley, 134 U. S. 160; Berry v. Davis, 216 F. 413, 242 U. S. 468.) II. Section 383 of the Correction Law, as construed and applied by the' court below, violates the constitutional guarantees of due process and equal protection of the laws. (Matter of Stephani, 250 App. Div. 253; Hoff v. State of New York, 279 N. Y. 490; People ex rel. Moten v. Shaw, 282 App. Div. 811; People ex rel. Marshall v. Webster, 266 App. Div. 637; Skinner v. Oklahoma, 316 U. S. 535; Missouri ex rel. Gaines v. Canada, 305 U. S. 337; Yick Wo v. Hopkins, 118 U. S. 356.) III. The remedy of habeas corpus is available to prevent continued violation of the prisoner’s constitutional rights. (People ex rel. Saia v. Martin, 289 N. Y. 471; People ex rel. Richards v. Warden of City Prison, 277 App. Div. 87; People ex rel. Marshall v. Webster, 266 App. Div. 637; People ex rel. Deliz v. Warden of City Prison, 260 App. Div. 155; People ex rel. Sacconanno v. Shaw, 4 A D 2d 817; People ex rel. Russo v. Shaw, 271 App. Div. 768; People ex rel. Sullinger v. Shaw, 269 App. Div. 918; People ex rel. Pisano v. McNeill, 270 App. Div. 896; Webster v. Fall, 266 U. S. 507.)

      Louis J. Lefkowits, Attorney-General (Winifred C. Stanley and Paxton Blair of counsel), for respondent.
    I. Delator was properly transferred to Dannemora State Hospital pursuant to a certificate of insanity as provided by section 383 of the Correction Law. Habeas corpus is not available to challenge selection of the place of his confinement, which is an administrative matter. (People ex rel. Brink v. Bailey, 284 App. Div. 609; People ex rel. Cirrone v. Hoffmann, 255 App. Div. 404; People ex rel. Morriale v. Branham, 291 N. Y. 312; People ex rel. Sullinger v. Shaw, 269 App. Div. 918; People ex rel. Russo v. Shaw, 271 App. Div. 768; People ex rel. Sacconanno v. Shaw, 4 A D 2d 817; People ex rel. Smith v. Johnston, 11 A D 2d 833; People ex rel. Saia v. Martin, 289 N. Y. 471.) II. Section 383 of the Correction Law, as applied by the court below, does not violate relator’s constitutional rights. (People ex rel.

      Stephani v. North, 91 Misc. 616; People ex rel. Morriale v. Branham, 291 N. Y. 312; Skinner v. Oklahoma, 316 U. S. 535; Missouri ex rel. Gaines v. Canada, 305 U. S. 337; Yick Wo v. Hopkins, 118 U. S. 356.)
   Burke, J.

The appellant, a prisoner, validly incarcerated in one prison, seeks a writ of habeas corpus in connection with an allegedly invalid transfer to a State hospital for the insane maintained at another penal institution.

Appellant was sentenced in October of 1952, upon a plea of guilty to rape in the first degree, to hard labor at Attica State Prison for the indeterminate sentence of one day to life. The sentence was presumably imposed subsequent to a psychiatric examination and the submission to the court of a report thereof in accordance with section 2189-a of the Penal Law.

In May of 1957 appellant was transferred to Dannemora State Hospital, an institution maintained for the purpose of confining and caring ‘ ‘ for such male prisoners as are declared insane ” (Correction Law, § 375). Appellant thereafter applied for a writ of habeas corpus upon the ground, inter alia, that he, being sane, was illegally transferred. He does not challenge on this issue the validity of the original commitment to Attica State Prison but merely protests his removal to Dannemora State Hospital.

The Appellate Division, ignoring the issue of sanity, upheld the denial of the writ solely upon the ground that the place of confinement may not be challenged by habeas corpus. ‘ ‘ Once a valid commitment is made ’ ’, they said, ‘ ‘ the place of detention is an administrative matter not subject to court intervention ” (citing People ex rel. Sacconanno v. Shaw, 4 A D 2d 817).

Although under ordinary circumstances a mere transfer (as distinguished from a commitment for insanity) is purely an administrative matter, and a prisoner has no standing to choose the place in which he is to be confined, we do not feel that the courts should sanction, without question, removals, in cases of alleged insane prisoners, which can conceivably be uncontrolled and arbitrary.

The issue here is not whether appellant is insane, but whether the courts below may properly refuse to even inquire into the nature of his condition and the possibility that he may be illegaily confined with deranged persons who are liable to harm and/or adversely affect him.

In spite of the fact that it is well settled that one may not by means of a writ of habeas corpus challenge imprisonment or restraint ‘ ‘ by virtue of the final judgment * * * of a competent tribunal of * * * criminal jurisdiction ” (Civ. Prae. Act, §§ 1231, 1230), it seems quite obvious that any further restraint in excess of that permitted by the judgment or constitutional guarantees should be subject to inquiry. An individual, once validly convicted and placed under the jurisdiction of the Department of Correction (Correction Law, § 6), is not to be divested of all rights and unalterably abandoned and forgotten by the remainder of society. If these situations were placed without the ambit of the writ’s protection, we would thereby encourage the unrestricted, arbitrary and unlawful treatment of prisoners, and eventually discourage prisoners from co-operating in their rehabilitation.

Since the writ of habeas corpus has traditionally been relied upon to alleviate the oppression of unlawful imprisonment and abuses of similar character, it can be invoked to obtain a hearing to test the validity of a commitment in an institution for the criminally insane. We cannot merely by virtue of the valid judgment sanction the subsequent abrogation of lawful process.

The State’s right to detain a prisoner is entitled to no greater application than its correlative duty to protect him from unlawful and onerous treatment (Ann. 155 A. L. E. 145, 146), mental or physical. “ [R]elief other than that of absolute discharge ” should be forthcoming (see Matter of Albori, 218 Cal. 34, 37; 39 C. J. S., Habeas Corpus, § 9, p. 440; Ann. 155 A. L. E. 145, 146; Matter of Rider, 50 Cal. App. 797; Matter of Byrnes, 26 Cal. 2d 824).

To implement this duty and secure the relief due the prisoner, we can and should recognize that “ [Cjourts have always asserted and exercised authority which, though perhaps not expressly established by statute, is ‘ based upon the inherent right and duty of the courts to protect the citizen in his constitutional prerogatives and to prevent oppression or persecution.’ ” (People v. Gersewitz, 294 N. Y. 163, 167; People ex rel. Saia v. Martin, 289 N. Y. 471.)

In this light the refusal of the Appellate Division to inquire into the challenged detention is erroneous. Its ultimate reliance upon People ex rel. Morriale v. Branham (291 N. Y. 312, 318) cited in the Sacconanno case (supra) is misplaced. In the Morriale case we did not intend to abolish the time-honored method of challenging an unlawful commitment. Here it would not accord with the equitable administration of justice. Therefore, even if constitutional questions (in our view) are not presented, a denial of a writ, thereby precluding a hearing to test sanity, would be egregious.

Although the availability of the writ of habeas corpus for this purpose may be a source of administrative inconvenience, it is not justification for a denial. It is well here to repeat that “ the rights of the best of men are secure only as the rights of the vilest and most abhorrent are protected.” (People v. Gitlow, 234 N. Y. 132, 158.)

Accordingly, the order of the Appellate Division should be reversed and the matter remitted to Special Term for further proceedings not inconsistent with this opinion.

Chief Judge Desmond and Judges Dye, Fuld, Froessel and Van Voorhis concur; Judge Foster taking no part.

Order reversed, etc.

       However, see N. Y. Const., art I, § 5; People ex rel. Cirrone v. Hoffmann, 255 App. Div. 404, 407; also compare Correction Law, § 383 (transfer of insane malo prisoners) with Correction Law, § 408 (insane female prisoners).


author: Chief Judge Desmond. Vah Voobhis, J. (dissenting).

text:
    Marie Benz, Appellant, v. New York State Thruway Authority, Respondent.
    Argued March 1, 1961;
    decided April 27, 1961.

      Lauren D. Rachlin for appellant.
    I. The State of New York has waived its immunity from actions in equity in section 8 of the Court of Claims Act. (Psaty v. Duryea, 306 N. Y. 413; Bernardine v. City of New York, 294 N. Y. 361; Smith v. State of New York, 227 N. Y. 405; Breen v. Mortgage Comm., 285 N. Y. 425; Glassman v. Glassman, 309 N. Y. 436; Strang v. State of New York, 206 Misc. 734; Pantess v. Saratoga Springs Auth., 255 App. Div. 426.) II. Even if the State has not waived its immunity from actions in equity, defendant is not immune from suit for rescission and/or reformation of a contract. (Easley v. New York State Thruway Auth., 1 N Y 2d 374; Matter of Plumbing Assn. v. New York State Thruway Auth., 5 N Y 2d 420; Bird v. New York State Thruway Auth., 8 A D 2d 495; Keifer & Keifer v. R. F. C., 306 U. S. 381; Sloan Shipyards v. United States Fleet Corp., 258 U. S. 549; Lacock v. City of Schenectady, 224 App. Div. 512; United States v. Michel, 282 U. S. 656; Beldon v. Mortgage Comm., 173 Misc. 731; Pantess v. Saratoga Springs Auth., 255 App. Div. 426; MacMullen v. City of Middletown, 187 N. Y. 37; Osborn v. United States Bank, 9 Wheat. [22 U. S.] 738; United States v. Lee, 106 U. S. 196.) III. Even if it were held that the doctrine of sovereign immunity applied to defendant, it still may not retain the benefits of a fraud committed by its agent in the performance of a ministerial act. (People v. Kerr, 27 N. Y. 188; Wright v. Shanahan, 61 Hun 264, 83 Hun 615, 149 N. Y. 495; People v. Canal Bd., 55 N. Y. 390; Weston v. City of Syracuse, 158 N. Y. 274; Sharp v. Mayor of City of N. Y., 40 Barb. 256; Locke v. Pembroke, 280 N. Y. 430; Schwartz v. Lubin, 6 A D 2d 108.) IV. The Thruway Authority may be likened to a municipal corporation acting in its corporate capacity. (Matter of Brown v. Board of Trustees of Town of Hamptonburg, 303 N. Y. 484; New York City Tunnel Auth. v. Consolidated Edison Co., 295 N. Y. 467; Moffett, Hodgkins & Co. v. Rochester, 178 U. S. 373; Abner M. Harper, Inc., v. City of Newburgh, 159 App. Div. 695; Martin v. Mayor of Brooklyn, 1 Hill 545; People v. Corporation

      of Albany, 11 Wend. 539; Van Dyke v. City of Utica, 203 App. Div. 26; Buck v. City of Lockport, 6 Lans. 251; Village of Elmira Hgts. v. Town of Horseheads, 234 App. Div. 270; Bloom v. Jewish Bd. of Guardians, 286 N. Y. 349; Bernardine v. City of New York, 294 N. Y. 361.) V. The denial of jurisdiction would constitute an unconstitutional deprivation of property without just compensation. (Locke v. Pembroke, 280 N. Y. 430; United States v. Lee, 106 U. S. 196; Chicago, B. & Q. R. R. Co. v. Chicago, 166 U. S. 226; Keifer & Keifer v. R. F. C., 306 U. S. 381.)

      Louis J. Lefkowits, Attorney-General (Julius L. Sackman, Paxton Blair and James L. Magavern of counsel), for respondent.
    I. The State has not waived its immunity from suits in equity. (Stone v. State of New York, 138 N. Y. 124; Matter of Hoople, 179 N. Y. 308; Sanders v. Saxton, 182 N. Y. 477; Saranac Land & Timber Co. v. Roberts, 195 N. Y. 303; Niagara Falls Power Co. v. White, 292 N. Y. 472; Psaty v. Duryea, 306 N. Y. 413; People v. Canal Bd., 55 N. Y. 390; Mathewson v. New York State Thruway Auth., 11 A D 2d 782; Glassman v. Glassman, 309 N. Y. 436; Easley v. New York State Thruway Auth., 1 N Y 2d 374.) II. Respondent, as an instrumentality of the State engaged in an operation which is governmental in nature, is clothed with the sovereign’s immunity except with respect to such causes as have been expressly statutorily allowed. No statutory waiver has been enacted which would permit maintenance of the instant cause of action. (Matter of Plumbing Assn. v. New York State Thruway Auth.. 5 N Y 2d 420; Bird v. New York State Thruway Auth., 8 A D 2d 495; New York City Tunnel Auth. v. Consolidated Edison Co., 295 N. Y. 467; Pantess v. Saratoga Springs Auth., 255 App. Div. 426; Strang v. State of New York, 206 Misc. 734; Bloom v. Jewish Bd. of Guardians, 286 N. Y. 349; Matter of Brown v. Board of Trustees of Town of Hamptonburg, 303 N. Y. 484; Holmes v. County of Erie, 266 App. Div. 220, 291 N. Y. 798; Lacock v. City of Schenectady, 224 App. Div. 512, 251 N. Y. 575; Wilcox v. City of Rochester, 190 N. Y. 137; Le Beau Piping Corp. v. City of New York, 170 Misc. 644; Glassman v. Glassman, 309 N. Y. 436; New Paltz, H. & P. T. Co. v. County of Ulster, 202 App. Div. 234; Voorhis v. Cornell Contr. Corp., 170 Misc. 908; Neddo v. State of New York, 194 Misc. 379, 275 App. Div. 492, 300 N. Y. 533.) III. The statutory power “ to sue and he sued ”, conferred upon the New York State Thruway Authority, does not detract from its immunity as above set forth. (Glassman v. Glassman, 309 N. Y. 436; Breen v. Mortgage Comm., 285 N. Y. 425; Lacock v. City of Schenectady, 224 App. Div. 512, 251 N. Y. 575; Beldon v. Mortgage Comm., 173 Misc. 731; Dietrich v. Palisades Interstate Park Comm., 114 Misc. 425; The Onteora, 298 F. 553; Jackson v. State of New York, 261 N. Y. 134.)
   Chief Judge Desmond.

The courts below, bound as they were by Easley v. New York State Thruway Auth. (1 N Y 2d 374), correctly held that the Supreme Court has no jurisdiction of this equity suit (or of the equity suit of Mathewson v. New York State Thruway Auth., 9 N Y 2d 788, decided herewith). Easley held that the Thruway Authority is an arm or agency of the State ” (p. 376) and that the Legislature could in creating the Thruway Authority have refused to waive immunity as to it and thus could have forbidden suits to be maintained against the Authority in any court or tribunal ” (pp. 376-377). Easley’s brief on his appeal to this court made (and we rejected) the identical arguments now made by appellant Benz. The Easley decision necessarily meant that there is no jurisdiction in any court of any suit against the Thruway Authority except as the Legislature has in terms created such jurisdiction.

There are just two statutory grants of jurisdiction to sue the Authority. One of them, section 361-b of the Public Authorities Law, discussed in Easley (supra), confers exclusive„jurisdiction upon the Court of Claims to hear and determine all claims against the Authority for alleged torts or breaches of contract. That enactment certainly does not authorize the bringing of these suits in the Supreme Court. The only other statutory grant of jurisdiction to bring actions against the Authority is in subdivision 5 of section 368 of the Public Authorities Law whereby the Legislature in order to permit one particular type of equity suit against the Thruway Authority enacted a special statute therefor.

In the Easley opinion (supra) we described at length the peculiarly close relationship between the Authority and the State itself and we concluded that for purposes of suit the Thruway Authority was part of the State Government and, accordingly, not suable without a direct waiver of immunity. The reasons for that holding were exactly the same as in Breen v. Mortgage Comm. (285 N. Y. 425) and the reasons why the present suit cannot be maintained against the Authority are the same reasons explained by us in Breen. Section 8 of the Court of Claims Act did not, so we directly held in the Breen opinion, authorize a suit by Breen in the Supreme Court and this situation was not affected by the statutory direction as to the Mortgage Commission that it may “ sue and be sued”. The same authorization as to the Thruway Authority (Public Authorities Law, § 354, subd. 1) has no broader meaning.

There may have been some doubt prior to 1954 (see dictum in Strang v. State of New York, 206 Misc. 734) as to jurisdiction of such suits as these but that doubt was removed by the legislative determination in 1954, before the Authority began to operate the Thruway, that there would be no jurisdiction of suits against the Authority except in the Court of Claims as to tort and contract claims and in the Supreme Court as to certain suits by bondholders (Public Authorities Law, §§ 354, 368). There is no provision anywhere for equity suits against the Thruway Authority. It would indeed be remarkable if the Legislature which could have forbidden suits to be maintained against the Authority in any court or tribunal” produced a situation where suits at law could be prosecuted (per express enactment) in the Court of Claims only but (by legislative silence) equity suits would be allowed against the Thruway Authority in the Supreme Court. There is no sign that the lawmakers had any such strange intent.

This leaves plaintiff without any remedy by suit but “ the immunity of a state agency is in no way affected by the lack of any other remedy ’ ’ (Glassman v. Glassman, 309 N. Y. 436, 441; see Psaty v. Duryea, 306 N. Y. 413, 420).

The judgment should be affirmed, without costs.

Vah Voobhis, J. (dissenting).

This is an equitable action in the Supreme Court for rescission or reformation of a contract for the sale of land to the New York State Thruway Authority. The complaint alleges that due to mutual mistake or mistake of plaintiff induced by fraud of defendant’s agent the purchase price in this contract amounted to approximately 1/20 of the agreed value of the appropriated land. The complaint has been dismissed on motion for lack of jurisdiction on the basis that the Thruway Authority enjoys governmental immunity from suits of this nature. The answer to this question requires examination of the doctrine of governmental immunity and of the decisions on the nature of the Thruway Authority as a public authority.

Section 8 of the Court of Claims Act was amended in 1939 so as to provide: 1 ‘ The state hereby waives its immunity from liability and action and hereby assumes liability and consents to have the same determined in accordance with the same rules of law as applied to actions in the supreme court against individuals or corporations, provided the claimant complies with the limitations of this article ” (italics supplied). This section is held to constitute a waiver of the governmental immunity of all of the civil divisions of the State — counties, cities, towns, villages, and by the same token, public authorities (Bernardine v. City of New York, 294 N. Y. 361). In the Bernardine case this court said (p. 365): “ The legal irresponsibility heretofore enjoyed by these governmental units was nothing more than an extension of the exemption from liability which the State possessed.” Ironically this waiver is circumscribed in causes of action against the State itself, due to the circumstance that the State can be sued only in the Court of Claims and section 9 of the Court of Claims Act has been held to be too narrow to cover jurisdiction over equitable actions (Psaty v. Duryea, 306 N. Y. 413). This does not alter the fact that all other governmental units in the State may be sued in the Supreme Court like individuals or private corporations (Court of Claims Act, § 8; Bernardine v. City of New York, supra). Waiver of governmental immunity is a consequence of the ‘ ‘ rising tide of criticism against the doctrine of sovereign irresponsibility ’ ’ (Miller v. Town of Irondequoit, 243 App. Div. 240, 241, per Lewis, J., affd. 268 N. Y. 578). It is not the policy of the courts to restrict the waiver of immunity which has become so firmly a part of the public policy of the State.

Upon the creation of the New York State Thruway Authority in 1950 as “ a body corporate and politic ” (Public Authorities Law, § 352) with power “ To sue and be sued ” (Public Authorities Law, §. 354, subd. 1), it could be sued in like manner as a private corporation in view of the waiver of immunity from liability ordained by section 8 of the Court of Claims Act expressly applying “ to actions in the supreme court ” (Pantess v. Saratoga Springs Auth., 255 App. Div. 426). Indeed, until the adoption in 1954 of section 361-b of the Public Authorities Law, the Attorney-General’s office successfully maintained that the Supreme Court had jurisdiction even of tort claims against the Thruway Authority to the exclusion of the jurisdiction of the Court of Claims (Strang v. State of New York, 206 Misc. 734).

In 1954 section 361-b was added to the Public Authorities Law purporting to confer upon the Court of Claims exclusive jurisdiction of claims against the Thruway Authority for its tortious acts and for breach of contract. The constitutionality of that section was tested in Easley v. New York State Thrmvay Auth. (1 N Y 2d 374) which was challenged in view of the section added in 1950 to the State Constitution providing that the Court of Claims shall have jurisdiction to hear and determine claims against the State (art. VI, § 23). There was held to be sufficient identity between the Thruway Authority and the State to give effect to section 361-b of the Public Authorities Law notwithstanding this provision in the State Constitution.

Nevertheless, it was recognized in Matter of Plumbing Assn. v. New York State Thruway Auth. (5 N Y 2d 420, 424) that the Easley decision does not mean that the Thruway Authority “ ‘ is the State ’ ” (italics from original), but that it is a public corporation independent and autonomous, deliberately designed to be able to function with a freedom and flexibility not permitted to an ordinary State board, department or commission.” (p. 423). If there had been held to be the identity between the State and the Thruway Authority that is asserted on this appeal, the Plumbing Association case could not have been decided as it was.

Easley (supra) did not hold that actions against the Thruway Authority were forbidden to be maintained in the Supreme Court by section 9 of the Court of Claims Act, but only that causes of action in tort and for breach of contract were required to be prosecuted in the Court of Claims by section 361-b of the Public Authorities Law. Between 1950 and 1954, prior to the enactment of section 361-b, the Thruway Authority could, indeed, be sued only in the Supreme Court. Section 361-b of the Public Authorities Law does not purport (like Court of Claims Act, § 9) to provide that the Thruway Authority is immune from suit except in the Court of Claims. It simply directs, as stated in its title, that exclusive jurisdiction ‘ ‘ in certain suits against the authority ’ ’ is conferred upon the Court of Claims. The Legislature deemed it advisable that claims against the Authority for tort or breach of contracts for construction, maintenance or operation should be decided in the Court of Claims, as they would be if they concerned ordinary State highways, but the Legislature was careful to state that exclusive jurisdiction in suits against the Authority was vested in the Court of Claims in those instances only. If the intention had been to confer exclusive jurisdiction on the Court of Claims in all instances, it would have been simple to have said so. The reason for the elaboration in the wording of this section is evidently to define the types of suits against the Authority which are cognizable solely by the Court of Claims, reserving jurisdiction in the Supreme Court over other causes of action within the general waiver of immunity expressly applicable to it (Court of Claims Act, § 8).

For these reasons, the order was erroneously granted dismissing the complaint on the ground that the Supreme Court has not jurisdiction of the subject of the action and the judgment entered thereon should be reversed.

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

Judgment affirmed.