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

text:
    Pleasant Valley Packing Company, Inc., Appellant, v. Samuel J. Talarico, Individually and as President of the Amalgamated Meatcutters, Butchers Workmen and Affiliated Crafts of North America, District Union, Local No. 1, AFL-CIO, et al., Respondents.
    Argued April 29, 1958;
    decided June 25, 1958.

      Warner M. Bouck and William D. Ferguson for appellant.
    I. Special Term found, and the Appellate Division has affirmed, that defendants are guilty of wrongful, coercive “ recognitional ” picketing for the purpose of forcing plaintiff to recognize defendants’ union despite the existence at plaintiff’s plant of a duly certified union with which plaintiff is under contract obligation as required by law. The irreparable damage caused to plaintiff by defendants’ wrongful acts, which would .force plaintiff out of business, has likewise been affirmed by the Appellate Division. (Goodwins, Inc., v. Hagedorn, 303 N. Y. 300; Hot Shoppes v. Ferrara, 2 Misc 2d 415; Flagler Hotel Operating Co. v. Starr, 3 A D 2d 625; Wood v. O’Grady, 307 N. Y. 532; Meltex, Inc., v. Livingston, 208 Misc. 1033; Baylis v. Quinnonez, 286 App. Div. 1030.) II. The lower court found that there was in the instant case no “labor dispute ” within the provisions of section 876-a of the Civil Practice Act. The Appellate Division affirmed this finding. III. Special Term found, and the Appellate Division affirmed the finding, that defendants ’ picketing was not ‘ ‘ organizational ’ ’ but was ‘ ‘ recognitional ’ ’ and designed to coerce plaintiff to recognize defendants’ union and interfere with its employees’ right of free collective bargaining. This court has specifically approved injunctive relief in these circumstances. (Goodwins, Inc., v. Hagedorn, 303 N. Y. 300; Wood v. O’Grady, 307 N. Y. 532.) IV. Special Term had power to grant the temporary injunction in this case. The acts complained of are not within any of the categories of unfair labor practices set forth in the Labor Management Relations Act of 1947. (De Hart v. Hatch, 3 Hun 375; Garner v. Teamsters Union, 346 U. S. 485; Meat Cutters v. Fairlawn Meats, 353 U. S. 20; Guss v. Utah Labor Bd., 353 U. S. 1; Arnold Bakers v. Strauss, 1 A D 2d 604; Baylis v. Quinnonez, 286 App. Div. 1030.) V. This court has declared the public policy of this State and the United States Supreme Court decisions acknowledge its right to do so. (Building Service Union v. Gazzam, 339 U. S. 532; Plumbers Union v. Graham, 345 U. S. 192; Automobile Workers v. Wisconsin Bd., 336 U. S. 245; Weber v. Anheuser-Busch, Inc., 348 U. S. 468.)

      Samuel Bader for respondents.
    I. Special Term was without jurisdiction of the subject matter of the action, inasmuch as exclusive jurisdiction is vested by the National Labor Relations Act of 1947 in the National Labor Relations Board to enjoin unfair labor practices in cases affecting interstate commerce. (Meat Cutters v. Fairlawn Meats, 353 U. S. 20; Garner v. Teamsters Union, 346 U. S. 485; Guss v. Utah Labor Bd., 353 U. S. 1; Retail Clerks Int. Assn. v. Netoberry Co., 352 U. S. 987; Weber v. Anheuser-Busch, Inc., 348 U. S. 468; San

      Diego Unions v. Garmon, 353 U. S. 26; Goodwins, Inc., v. Hagedorn, 303 N. Y. 300.) II. The undisputed facts in the case establish that defendants’ picketing was peaceful and grew out of a labor dispute. The injunction was, therefore, erroneously granted in violation of section 876-a of the Civil Practice Act. (Exchange Bakery & Restaurant v. Rifkin, 245 N. Y. 260; Cornell Beverages v. Engar, 3 Misc 2d 526.)
   Chief Judge Conway.

The sole question here presented is whether Special Term possessed the power to grant plaintiff’s motion for a temporary injunction enjoining picketing and related activities by the defendants. The Appellate Division, while affirming Special Term’s findings of fact, has held, as a matter of law, that the Special Term had no such power.

The facts, as affirmed, are these: Plaintiff is a meatpacker, its plant and store being in Schenectady, New York. An independent union has for some years been the exclusive bargaining agent of plaintiff’s employees, certified as such by the National Labor Relations Board. For about a year prior to February, 1957, the defendants — officers of a district union — had been circulating literature among the employees of the plaintiff and doing other lawful acts, with the purpose of influencing the employees to become members of the defendant union. These efforts not being successful, on February 22,1957 the defendants began picketing in front of the plaintiff’s premises. The pickets carried signs containing the legend:

Unfair to Organized Labor This Employer’s Engaging Unfair Labor Practice Amalgamated Meat Cutters Union Local #1, A.F.L. C.I.O.

Although the picketing was not disorderly, on February 25, 1957 one of the drivers of the Safeway Truck Lines was threatened by agents of the defendants’ union and informed that he should not cross the picket line. As a result of this, that driver and other drivers of the trucking company thereafter refused to cross the picket line. This had the effect of reducing plaintiff’s weekly supplies to its serious detriment since it is a packing company.

Subsequently, plaintiff instituted the present suit for a permanent injunction and moved for a temporary injunction against the picketing. Special Term granted the temporary injunction holding that defendants’ picketing of plaintiff’s establishment constituted “economic pressure”; that the purpose of the picketing was to exert pressure, economic or otherwise, on plaintiff employer to compel plaintiff to commit an unlawful act — that of interfering with the rights of its employees to choose their own bargaining representatives; that the picketing was not “organizational” but was “ recognitional ” and under the circumstances was unlawful under the laws of the State of New York; that from the affidavits submitted by the parties it could not be determined authoritatively that a genuine labor dispute existed between the parties and that, therefore, for the purpose of the motion for the temporary injunction it was found that the facts herein do not come within section 876-a of the Civil Practice Act; that defendants’ conduct is not defined as an unfair labor practice in section 8 of the National Labor Relations Act and, that being so, the State courts are not pre-empted and have jurisdiction.

The Appellate Division reversed, on the law, stating: “In our view, the union activities enjoined by the Special Term order lie within the field of unfair labor practices which Congress has pre-empted for regulation under the Taft-Hartley Act (Labor Management Relations Act of 1947, U. S. Code, tit. 29, § 141 et seq.). That conclusion seems necessarily to follow from the decision in Garner v. Teamsters Union (346 U. S. 485) ”.

In our opinion, the Appellate Division erred in so holding.

In Goodwins, Inc., v. Hagedorn (303 N. Y. 300), defendant union picketed the plaintiff employer’s store for the purpose of forcing the employer to recognize the defendant union as sole collective bargaining agent despite the competing claims of a rival labor organization to represent the same employees. Plaintiff sought to enjoin the picketing. Special Term dismissed the complaint and the Appellate Division affirmed. We reversed and ordered a new trial, pointing out that section 876-a of the New York Civil Practice Act, which precludes the issuance of an injunction when a labor dispute is involved, does not bar injunctive relief in a case where a union’s objective is to coerce an employer into committing an unlawful act. So, here, it would be unlawful for the plaintiff employer to yield to the demand of the defendants that it recognize the defendants’ union instead of the union duly certified by the National Labor Relations Board. Since the purpose of the picketing is to force the employer to commit an unlawful act rather than to accomplish a lawful labor objective, no labor dispute is involved and section 876-a of the Civil Practice Act does not bar injunctive relief if there be a finding that irreparable injury to the plaintiff will follow unless the relief requested is granted. Special Term has so found and the Appellate Division has affirmed.

The remaining and crucial question is whether the National Labor Management Relations Act disables our State courts from acting in the circumstances of this case. It is clear that if the National Labor Relations Board is vested with power to entertain the plaintiff’s grievance against the defendant union, our courts are without jurisdiction to act. If the board is not vested with such power State action is still permissible (Garner v. Teamsters Union, 346 U. S. 485).

The National Board is empowered to act in those instances where the National Labor Management Relations Act is violated. Do defendants’ acts constitute a violation of that act? They do only if they may be considered an unfair labor practice as that term is defined in the act. The provisions of the act which come closest to touching this case are contained in paragraph (4) of subdivision (b) of section 8 which says that It shall be an unfair labor practice for a labor organization or its agents— * * * (4) to engage in * * * a strike * * * where an object thereof is: * * * (0) forcing or requiring any employer to recognize or bargain with a particular labor organization as the representative of his employees if another labor organzation has been certified as the representative of such employees under the provisions of section 159 of this title; * * V’ (U. S. Code, tit. 29, § 158; emphasis supplied.) The picketing conducted by the defendant union does not fall within the foregoing definition of an unfair labor practice under the Federal statute because no strike is involved in this case. Special Term specifically found: ‘1 Here there is no strike but merely picketing for an alleged illegal purpose. That conduct is not defined as an unfair labor practice in section 8 of the National Labor Relations Act. Hence, the State courts are not pre-empted and have jurisdiction. (Goodwins, Inc., v. Hagedorn, 303 N. Y. 300.) ”

It may be argued that although the picketing here involved is not specifically declared to be an unfair labor practice, it is so closely related to activities proscribed by the Federal statute that it may be said to fall within the area of proscription. Such an argument must be rejected, however, for as Judge Fboessel said in his concurring opinion in the Goodwins case (303 N. Y. 300, 308, supra): “ Had the sponsors of the Taft-Hartley Act and the Congress so intended, surely they would have made their purpose manifest, for plain language was readily available.”

In asserting that the State courts have been pre-empted, the defendants rely upon the following cases: Garner v. Teamsters Union (346 U. S. 485, supra); Weber v. Anheuser-Busch, Inc. (348 U. S. 468); Retail Clerks Int. Assn. v. Newberry Co. (352 U. S. 987); Guss v. Utah Labor Bd. (353 U. S. 1); Meat Cutters v. Fairlawn Meats (353 U. S. 20); San Diego Unions v. Garmon (353 U. S. 26). Those cases, involving various factual situations, do no more than hold what we recognized to be so in the Goodwins case (supra), namely, that in a case where the National Labor Relations Board is vested with the power to entertain the plaintiff’s grievance against the defendant union, because the defendant union is guilty of an unfair labor practice, a State may not afford the plaintiff injunctive relief. Each of the cited cases is distinguishable on the facts from the present one, which does not involve an unfair labor practice within the language of the Federal Act.

It is noteworthy that in the Anheuser-Busch case (supra), the Supreme Court referring to the Garner case said (pp. 480-481): “ But as the opinion in that case recalled, the Labor Management Relations Act ‘ leaves much to the states, though Congress has refrained from telling us how much. ’ 346 U. S., at 488. The penumbral area can be rendered progressively clear only by the course of litigation. ’ ’

In the light of the foregoing statement emanating from the Supreme Court, we do not think we should be quick to announce a lack of State jurisdiction in this general area. If we rule against jurisdiction and we are wrong in so ruling, the unsuccessful litigant may well be irreparably harmed. We are of the mind that any doubt should be resolved in favor of jurisdiction, leaving it to the Supreme Court to finally resolve the matter. We recognize, of course, that the facts in the Garner case {supra) come close to the facts in the present case but believe that the cases are distinguishable since there the picketing union sought to compel the employer to encourage its employees to join the picketing union — an unfair labor practice— whereas here the complaint alleges that the defendants demand that plaintiff recognize the defendant union instead of the certified union. To do so would not necessarily entail coercion by the plaintiff upon its employees, but would entail an abrogation of plaintiff’s legal duty to contract only with the certified union, with which it has a contract required by law. Hence, the factual situation before the court in the Garner case was different from that in the present case. Conceivably the Supreme Court of the United States could rule that the difference is not substantial. However that may be, it does not clearly appear that the difference in the cases is insubstantial and, so, we feel that the only proper course is to hold in favor of our jurisdiction.

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

Desmond, J. (dissenting).

The Appellate Division, reversing a temporary injunction against picketing by defendant union of plaintiff’s meat-packing plant, certified to us a question of law as to whether Special Term had power to grant the injunction. I think, as did the Appellate Division, that the question should be answered in the negative. Recent and clearly pertinent United States Supreme Court decisions hereafter discussed hold that the picketing which the Special Term order here sought to enjoin was one of the unfair labor practices which Congress has pre-empted for regulation under the Taft-Hartley Act (U. S. Code, tit. 29, § 141 et seq.).

Before and during this picketing, a so-called “ independent ” union (not defendant) has been, by certification of the National Labor Relations Board, declared to be the exclusive bargaining agent of plaintiff’s employees. Nevertheless, defendant picketed the plant. The Appellate Division correctly found that plaintiff is engaged in interstate commerce and that this was ‘ recognitional” picketing by a “ stranger ” union for the purpose of compelling plaintiff employer to commit an act unlawful under Taft-Hartley, that is, to deal or bargain with defendant despite the existing certification of a different union. Such an application of economic pressure by a union against an employer for such a purpose is condemned as an unfair labor practice'by Taft-Hartley (Garner v. Teamsters Union, 346 U. S. 485; Retail Clerks Int. Assn. v. Newberry Co., 352 U. S. 987; Meat Cutters v. Fairlawn Meats, 353 U. S. 20; San Diego Unions v. Garmon, 353 U. S. 26). Those cases, although involving various factual situations, all hold that State courts and State boards are forbidden to intrude into the eongressionally preempted field (see Federal Pre-emption—A Comment, 33 N. Y. U. L. Rev. 691; Stranger Picketing and the Injunction in New York, N. Y. L. J., June 11, 1958, p. 4). Garner and Retail Clerks Int. Assn., at least, say definitely that conduct of the kind charged against this defendant union was an unfair labor practice within the prohibitions of the Federal Act. It is true that in the present case, as distinguished from Garner and Retail Clerks Int. Assn., there had been a certification of a rival union by the National Labor Relations Board. But the fact of such prior certification makes it all the clearer that the controversy was for the National Board and not for the State courts to determine. Plaintiff would have us hold that the Taft-Hartley Act does not cover this situation since there is no actual strike (see § 8, subd. [b], of the Federal statute, U. S. Code, tit. 29, § 158). But the ready answer to that is that there was no strike in any of the recent United States ¡Supreme Court eases above eit.ed and yet in each of them it was held that the Federal Board alone had power to deal with an attempt by an uncertified union to compel the employer to deal with it.

It is suggested that an affirmance here would be inconsistent with Goodwins, Inc., v. Hagedorn (303 N. Y. 300). Whether or not that be so, we are controlled here by the later Garner, Meat Cutters and Retail Clerks Int. Assn, cases (supra).

The order appealed from should be affirmed, with costs, and the certified question answered in the negative.

Fuld, J. (dissenting).

I, too, believe that the court at. Special Term lacked the jurisdiction to issue an injunction. The defendant union, despite the fact that another union had been certified as the exclusive bargaining agent of plaintiff’s employees, picketed the plaintiff’s premises in order to force it to bargain with defendant as the representative of its employees. Such conduct constitutes an unfair labor practice under section 8(b)(4)(C) of the Labor Management Relations Act of 1947 (U. S. Code, tit. 29, § 141 et seq.).

It is not necessary that the union be engaged in “ a strike ’ ’; it is enough, to quote the statute, that it ‘ ‘ induce or encourage the employees * * * to engage in a strike or a concerted refusal in the course of their employment ”. (See Electrical Workers v. Labor Bd., 341 U. S. 694, 701-702; National Labor Relations Bd. v. Associated Musicians, 226 F. 2d 900, 904, cert. denied 351 U. S. 962.) In the Associated Musicians case, the Court of Appeals for the Second Circuit, addressing itself to this very point under another clause of section 8, identically worded, wrote (226 F. 2d, at p. 904):

‘ ‘ Respondents argue that, since no employees * * * engaged in a strike, there has been no violation of § 8(b)(4)(A) of the Act. They contend that the words ‘ induce or encourage ’ * * * refer only to a successful inducement and encouragement; where no actual strike or concerted refusal to work ensues, no violation can be found. This view, however, is supported neither by common understanding of the meaning of these words nor by authority. [Cases cited.] ”

As the Supreme Court has observed, picketing, even though peaceful, is a form of inducement and encouragement (Electrical Workers v. Labor Bd., 341 U. S. 694, 701-702, supra): “To exempt peaceful picketing from the condemnation of § 8 (b) (4) (A) as a means of bringing about a secondary boycott is contrary to the language and purpose of that section. The words induce or encourage ’ are broad enough to include in them every form of influence and persuasion. ’ ’

Nor is there any doubt of the existence of the other conditions which must be shown to establish an unfair labor practice under the Labor Relations Act. Indisputably, “ another labor union [was]o certified as a representative ” of the employees by the National Labor Relations Board (Labor Management Relations Act of 1957, § 8[b] [4] [C]). And, just as clearly, the object of the union’s conduct was to force or require the employer ‘ ‘ to recognize or bargain with a particular labor organization as the representative of his employees ” (ibid.). The court at Special Term expressly found that the picketing carried on by defendant union was ‘ ‘ recognitional, ’ ’ not “ organizational,” and the Appellate Division affirmed this finding. It follows, therefore, that the defendant’s conduct is covered by the federal statute.

On the other hand, if the picketing were to be regarded as having been for organizational rather than recognitional purposes, the state courts would, nevertheless, still be barred from granting injunctive relief. In such a case, the conduct sought to be enjoined would be protected by the federal act and, under the pre-emption doctrine, not subject to interference by any state court or board. (See Garner v. Teamsters Union, 346 U. S. 485; Weber v. Anheuser-Busch, Inc., 348 U. S. 468; Retail Clerks Int. Assn. v. Newberry Co., 352 U. S. 987; National Labor Relations Board v. Local 50, 245 F. 2d 542.)

In short—whether the picketing is considered recognitional or organizational, whether the activities of defendant union are condemned by the federal statute as an unfair labor practice or by it protected as permissible conduct — our courts may not exercise jurisdiction. “ It is not necessary or appropriate for us ”, the Supreme Court declared in the Garner case (346 U. S. 485, 489), “to surmise how the National Labor Relations Board might have decided this controversy had petitioners presented it to that body. The power and duty of primary decision lies with the Board, not with us.” (Cf. Meat Cutters v. Fairlawn Meats, 353 U. S. 20, 23-24; San Diego Unions v. Garmon, 353 U. S. 26; Youngdahl v. Rainfair, Inc., 355 U. S. 131).

The order of the Appellate Division should be affirmed and the certified question answered in the negative.

Judges Froessel, Van Voorhis and Burke concur with Chief Judge Conway; Judges Desmond and Fuld dissent in separate opinions, each concurring in the other’s, and Judge Dye concurring in both.

Order of Appellate Division reversed and that of Special Term, dated April 30, 1957, reinstated, with costs in this court and in the Appellate Division. Question certified answer in the affirmative.

       It will be remembered that Special Term found that the picketing was not “ organizational ” but was “ recognitional ” and that the Appellate Division affirmed the findings of fact made by Special Term. Affirmed findings of fact are conclusive in this court.


source: Caselaw Access Project

author: Froessel, J.

license: Public Domain

text:
    In the Matter of Leroy Mandle, Respondent-Appellant, against Peter Campbell Brown, as Corporation Counsel of the City of New York, et al., Appellants-Respondents.
    Argued January 20, 1958;
    decided June 25, 1958.

      Peter Campbell Brown, Corporation Counsel (Seymour B. Quel and Leo A. Larkin of counsel), appellant-respondent in person and for Joseph Schechter and others, appellants-respondents.
    I. The reclassification involved did not effect promotions within the meaning of section 6 of article Y of the State Constitution. There was neither appointment nor promotion nor were any vacancies filled by such reclassifications. All that was done was the continuance of the old positions under a new nomenclature and increased salary without any change in the duties required under the former civil service titles. (Matter of Cook v. Kern, 278 N. Y. 195; Matter of Sanger v. Greene, 269 N. Y. 33; Matter of Kinsella v. Kern, 168 Misc. 847, 254 App. Div. 834, 278 N. Y. 739; People ex rel. Wilson v. Knox, 45 App. Div. 537; Matter of Sugden v. Partridge, 174 N. Y. 87; Matter of Fornara v. Schroeder, 261 N. Y. 363; People ex rel. Lodholz v. Knox, 58 App. Div. 541, 167 N. Y. 620; Matter of Jampol v. Kern, 167 Misc. 823, 254 App. Div. 733, 280 N. Y. 659; People ex rel. Faitonte v. Creelman, 148 App. Div. 890, 205 N. Y. 589; People ex rel. Stokes v. Tully, 108 App. Div. 345; Matter of Murray v. Water Bd. of City of Lockport, 88 Misc. 625.) II. Assuming, arguendo, that the reclassification effected a promotion, the Commission’s determination that it was not practicable to hold examinations for the positions here involved was fully supported by the record and should be upheld. (Matter of Sippel v. Dowd, 191 Misc. 558, 274 App. Div. 1027; People ex rel. Schau v. McWilliams, 185 N. Y. 92; Matter of Ricker v. Village of Hempstead, 290 N. Y. 1; Matter of Simons v. McGuire, 204 N. Y. 253; People ex rel. Sweet v. Lyman, 157 N. Y. 368; Matter of Feeney v. Village of Bronxville, 185 Misc. 1, 269 App. Div. 1040, 295 N. Y. 904; Matter of Mazzarella v. Kern, 285 N. Y. 85; Matter of Jampol v. Finegan, 167 Misc. 823, 254 App. Div. 733, 280 N. Y. 659; Matter of Kinsella v. Kern, 168 Misc. 847, 254 App. Div. 834, 278 N. Y. 739; Matter of Sandford v. Finegan, 276 N. Y. 70; Matter of Fornara v. Schroeder, 261 N. Y. 363.)

      A. Bernard King for Murray Herman, individually and on behalf of the Civil Service Technical Guild, Local 375, American Federation of State, County and Municipal Employees, AFL-CIO, amicus curice, in support of the position of appellants-respondents.
    I. There is sufficient showing in the record that the changes of title were not promotions; that they were allocations pursuant to a comprehensive reclassification program which secured to the incumbents rights acquired after valid original appointments; and that the reclassification was proper. Indeed, the denial or impairment of incumbents’ rights would be illegal. (Matter of Cook v. Kern, 278 N. Y. 195; Matter of Williams v. Morton, 297 N. Y. 328; Matter of Sanger v. Greene, 269 N. Y. 33; Matter of Corrigan v. Joseph, 304 N. Y. 172; Matter of Beggs v. Kern, 284 N. Y. 504; Matter of Brennan v. Kern, 173 Misc. 388, 258 App. Div. 1049, 284 N. Y. 810; Matter of Kinsella v. Kern, 168 Misc. 847, 254 App. Div. 834, 278 N. Y. 739; Matter of Sandford v. Finegan, 276 N. Y. 70; Matter of Fornara v. Schroeder, 261 N. Y. 363; Matter of Sugden v. Partridge, 174 N. Y. 87.) II. The judicial inquiry ordered by the Appellate Division is futile. The action taken by the administrative agencies is unassailable on the basis of the record and the opinion of the Appellate Division. (Matter of Levine v. Connelly, 267 App. Div. 796, 267 App. Div. 926, 292 N. Y. 724; Matter of Buckley v. Conway, 270 App. Div. 1066; Matter of Andresen v. Rice, 277 N. Y. 271; Matter of Cornehl v. Kern, 260 App. Div. 35, 285 N. Y. 777; People ex rel. Joyce v. Schirmer, 253 App. Div. 845, 277 N. Y. 676.)

      Charles F. Murphy for Association of Declassified Employees in the Civil Service of the City of New York, amicus curiae, in support of the position of appellants-respondents.
    I. The career and salary plan is a reorganization program that was long overdue. It is neither a figment of the imagination nor a hurry-up, haphazard scheme that was dreamed up overnight. In putting it into effect the municipal authorities fully complied with the law and safeguarded the rights of all affected employees. Petitioner has benefited materially as a result of this program. His complaint that he should have received more substantial benefits does not warrant the attention of the court. It should be directed to the Administrative Appeals Board. (Matter of Williams v. Morton, 297 N. Y. 328; Matter of Sanger v. Greene, 269 N. Y. 33; Matter of Cook v. Kern, 278 N. Y. 195; Matter of Kinnerney v. Hornell Civil Service Comm., 262 App. Div. 39, 287 N. Y. 599; Matter of Carr v. Kern, 279 N. Y. 42; Matter of Mazzarella v. Kern, 285 N. Y. 85; People ex rel. Schwab v. Grant, 126 N. Y. 473; Matter of City of New

      York [Ely Ave.], 217 N. Y. 45; Matter of Fiore v. O’Connell, 297 N. Y. 260; Matter of Coombs v. Edwards, 280 N. Y. 361.)

      John Harold for respondent-appellant.
    I. Special Term’s finding that the duties of tax counsel were lower in importance and responsibility than those of principal attorney, supervising attorney, and senior attorney is apparent from the facts in the record on appeal and thus a promotion was involved. (Matter of Byrnes v. Windels, 265 N. Y. 403.) II. The elevation of some attorneys over other attorneys in the identical positions, ranks, titles and salary grades to higher positions, ranks, titles and salary grades constitutes promotions within the meaning of the State Constitution and the Civil Service Law. (Hale v. Worstell, 185 N. Y. 247; Matter of Williams v. Morton, 297 N. Y. 328; Matter of Cook v. Kern, 278 N. Y. 195; Matter of Fornara v. Schroeder, 261 N. Y. 363; Matter of Sandford v. Finegan, 276 N. Y. 70; Matter of Beggs v. Kern, 284 N. Y. 504; Matter of Corrigan v. Joseph, 304 N. Y. 172; People ex rel. Stokes v. Tully, 108 App. Div. 345.) III. As to all former positions a promotion was involved in a change to any of the new positions, even assuming those so promoted were in fact doing the duties described and required in the new position to which they were changed. IV. Respondents’ affidavits prove that the grade 4 employees they chose for elevation over other grade 4 employees were not doing supervisory work required for “Principal”, “ Supervising ”, or “ Senior Attorney ”. (Matter of O’Gorman v. Schechter, 5 Misc 2d 129.) V. The Civil Service Commission has never found that competitive examinations are not practicable to determine merit and fitness for the positions of principal attorney, supervising attorney and senior attorney. (Matter of Cornehl v. Kern, 260 App. Div. 35, 285 N. Y. 777; Matter of Sheridan v. Kern, 255 App. Div. 57.) VI. There are no issues of fact requiring a trial herein. Assuming, arguendo, that such a trial is required, it should not be held in accordance with the views of the majority of the Appellate Division. (Matter of Flannery v. Joseph, 300 N. Y. 149; Matter of Meenagh v. Dewey, 286 N. Y. 292.) VII. Personal appeal by petitioner to the Reclassification Appeals Board was not the proper remedy—would be unnecessary and inappropriate. (Matter of Williams v. Morton, 297 N. Y. 328; Matter of Murray v. McNamara, 303 N. Y. 140; Matter of O’Reilly v. Grumet, 308 N. Y. 351.) VIII. Petitioner seeks to compel respondents to obey the mandate of the resolution of the Board of Estimate. It is not petitioner who is seeking to destroy the career and salary plan. Petitioner seeks to enforce it. IX. The duties of the competitive civil service position are determined by the description of duties given to such position by the Civil Servce Commission. (Matter of Flannery v. Joseph, 300 N. Y. 149; Matter of Dinan v. Joseph, 304 N. Y. 696.) X. A trial at Special Term is not necessary. A comparison of the duties of old grade 4 positions with the duties of the new grades 23, 26 and 28 reveal higher duties of responsibility, importance and prestige. XI. An advancement from one grade to a higher grade is a promotion. (Matter of Murray v. McNamara, 303 N. Y. 140.) XII. Petitioner and 91 others have been substantially damaged; their former rights cannot be legally protected. XIII. The case law requires promotion examinations to determine merit and fitness for appointment to higher reclassified positions and grades.

      Myron Caruso for American Legion of Queens County, Department of New York, amicus curiae, in support of respondent-appellant’s position.
    Experience has demonstrated that competitive examinations have greatly benefited the public service. This being so, war veterans in common with all other good citizens favor a rigid enforcement of the civil service provisions of the Constitution. (Matter of Keymer, 148 N. Y. 219; Matter of Williams v. Morton, 297 N. Y. 328; Hale v. Worstell, 185 N. Y. 247; Sanger v. Greene, 269 N. Y. 33; Matter of Mendelson v. Kern, 168 Misc. 102, 278 N. Y. 568.)

      Bernard A. Helfat for Harry Spangenberger, individually and on behalf of the Petition G-roup, Queensborough Civil Service Employees, amictis curiae, in support of respondent-appellant’s position.
    The provisions of the career and salary plan for promotion without examination violate the basic tenets of a merit civil service system as well as the express provisions of the Constitution of the State of New York. (Matter of O’Gorman v. Schechter, 5 Misc 2d 129; Matter of Carolan v. Schechter, 5 Misc 2d 753; Matter of Cook v. Kern, 278 N. Y. 195; Matter of Williams v. Morton, 297 N. Y. 328.)
   Froessel, J.

These are cross appeals on certified questions. Petitioner brings this article 78 proceeding in his capacity as a citizen, alleging that the reclassification without competítive examination of some 46 former grade 4 attorneys in the office of the Corporation Counsel of New York City constitutes an illegal promotion (N. Y. Const., art. V, § 6). Petitioner is employed in the same office, having been originally appointed tax counsel, grade 4. In the reclassification he and some 90 other former grade 4 attorneys in the office were given the new title of “attorney”, while those persons whose assignments he seeks to nullify were given one of the three titles higher than that of “attorney”, namely, senior attorney, supervising attorney, and principal attorney.

The administrative action which petitioner challenges is part of a city-wide reclassification of some 125,000 positions. The reclassification had its origin in 1950 when Mayor O’Dwyer, on the recommendation of the Bureau of the Budget and various civic groups, named a committee on management survey to study the entire city civil service structure. A firm of public administration and finance consultants was engaged to survey 59 city agencies and 11 cultural institutions, and to suggest a comprehensive plan of job classification, including salary schedules. Its survey covered some 86,000 positions.

In 1953, after holding numerous hearings and conferences looking toward the creation of a “career and salary plan”, the Mayor’s committee reported: “ The existing titles and classes used by the City have evolved without systematic plan over the past decades and leave a great deal to be desired. Identical titles have totally different meanings in the several departments and similar work is paid for at different rates.” In proposing reclassification of the city civil service, the committee recommended the use of “equivalencies ”, whereby each existing title would be correlated with a title in the new classification.

In 1954, the Legislature, at the request of Mayor Wagner, enacted a law amending the New York City Charter by creating a City Civil Service Commission (hereinafter called the Commission) in place of the old Municipal Civil Service Commission (L. 1954, ch. 354; New York City Charter, §§ 811-819). It also created a Department of Personnel, of which the Commission would be a part, with .a personnel director to serve as chairman of the Commission, who was given broad powers including the power to make studies and recommendations with regard to grading and classifying civil service positions. In approving the law, Governor Dewey stated, among other things, that it represents “ a major improvement over present procedures ” (McKinney’s 1954 Session Laws of N. Y., pp. 1389-1390).

Thereafter the Board of Estimate, pursuant to its powers under the New York City Charter (§§ 67, 68), approved the establishment of a career and salary plan, and adopted a general pay plan to provide fair and comparable pay for comparable work, and regular increases in pay in proper proportion to increase of ability as demonstrated in service ”. The board resolved that the salary of positions subject to the plan should not be reduced for the then permanent incumbents nor should their rights or status be in any way impaired.

The Commission, with the approval of the State Civil Service Commission, provided in a companion resolution that each position or class of positions subject to the career and salary plan “ shall be classified under a standard title and allocated to an appropriate salary grade as soon as practicable following the adoption of this rule, and, upon such position classification and salary grade allocation, the Personnel Director shall establish schedules of equivalent titles indicating in each ease the former title of each position and the standard title and salary grade to which such position is classified and allocated.” The resolution stated that the rights of permanent incumbents should not be impaired, and that those entitled to an unlimited salary grade prior to reclassification (e.g., persons in grade 4) would not be subject to a maximum salary, even if placed in new positions with such a maximum. The resolutions provided for classification appeals boards to hear all protests and appeals on salary allocations and reallocations and on position classification and reclassification.

After a series of hearings and discussions concerning new grades, titles and salaries with some 130 employee groups, with every department head, and professional and civic organizations, Personnel Director Schechter submitted to the Board of Estimate his proposals for the reclassification and salary grade reallocation of, among others, the legal positions in the competitive class of the city service.

He recommended the following table of equivalencies: law assistants, grade 2, were to become junior attorneys; the various legal positions in grade 3 were to be given the title of assistant attorney; and all attorneys in grade 4, the highest competitive grade in the legal service, unlimited as to salary, were to be assigned to the new ranks and grades of attorney, senior attorney, supervising attorney and principal attorney. These new titles carried progressively higher minimum and maximum salaries and differing degrees of responsibility as illustrated in the description of duties attached to the personnel director’s report. As with all other positions to which the career and salary plan applied, annual salary increments were provided.

Before reclassification there were some 137 grade 4 attorneys in the Corporation Counsel’s office, performing functions of varying importance and receiving salaries ranging from the minimum of $4,876 ($6,345 for tax counsel) to $14,000. Because this was an unlimited salary grade, employees in grade 4 had been assigned different salaries as well as different degrees of responsibility, without requiring promotional examinations.

The Commission adopted the personnel director’s recommendations and declared that all persons permanently employed in the then present legal classes were “ eligible for reclassification, without further examination, as indicated in the table of equivalencies ”. Its action was approved by the Mayor and by the State Civil Service Commission. Since exact equivalencies could not be set up with regard to persons formerly in grade 4 (and the other some 15,000 persons in unlimited salary grades), an on-the-job survey was made. Pending its completion, petitioner and all other attorneys in former grade 4 were assigned on April 17, 1956 to the position of ‘1 attorney ”, subject to more specific classification as a result of the survey.

The survey, to determine actual duties and responsibilities of incumbents, consisted of questionnaires filled out by each incumbent and verified by his immediate superior, and desk audits ’ ’ or personal interviews. Changes in titles were said to be in conformity with the work actually done prior to reclassification. Upon completion of the on-the-job survey, the former grade 4 attorneys in the Corporation Counsel’s office were, on -July 15, 1956, reclassified as follows: 9 were given the title of principal attorney with a salary range from $11,200 to $13,600; 13 were given the title of supervising attorney with a salary range from $10,300 to $12,700, and 24 were given the title of senior attorney with a salary range from $9,000 to $11,100. The rest, including petitioner, were assigned the title of attorney with a salary range from $7,100 to $8,900. Inasmuch as the salary for former grade 4 was unlimited, no one by this reclassification received a salary beyond that fixed for said grade 4 (Civil Service Law, § 16, subd. 7).

Several weeks thereafter, petitioner instituted this proceeding. It is clear from a reading of the petition, reply and reply affidavits that petitioner’s complaint is not directed towards the career and salary plan as such—indeed he states he is seeking to “ save ” the plan—nor towards the creation of different titles and higher salaries for employees in the legal service, nor towards the use of equivalencies. The substance of his claim, as indicated by the language of his reply and reply affidavit, is that-a “few chosen persons ” in the Corporation Counsel’s office were given “unjustifiable preferment ” on the basis of “personal influence and favor”. In other words, the essence of his petition is an attack not upon the plan of reclassification itself but upon the way it was administered with regard to his particular department.

Petitioner urges that the duties of tax counsel were lower in importance and responsibility than those of principal attorney, supervising attorney and senior attorney, and, therefore, a promotion was involved. His conclusion, like that of Special Term, is based upon a mere comparison of the duties described in one of the recent notices of examination for tax counsel with those included in the “illustrative ” basic class descriptions of the other three titles. There is no support whatever for the claim that, for purposes of reclassification, such job descriptions are controlling. If petitioner’s argument were carried to its logical extreme, he would have to take an examination himself in order to be assigned as attorney and collect the corresponding increase in salary, since the duties described for that position, including the authority to supervise others, are on their face undeniably higher in character than the announced duties of tax counsel.

The eases cited on this issue by petitioner— (Matter of Flannery v. Joseph, 300 N. Y. 149; Matter of Dinan v. Joseph, 304 N. Y. 696) —have no application to the facts of the instant case. They involved proceedings to fix prevailing rates of wages under section 220 of the Labor Law. We said in Flannery (p. 155) that In proceedings of this nature ” (emphasis supplied) the civil service definition of an employee’s duties is determinative (cf. Matter of Golden v. Joseph, 307 N. Y. 62). Such a rule would of course be inapplicable to the reclassification of employees in unlimited salary grades, the very purpose of which was to recognize and reward them for work actually being performed.

Petitioner argues that if the attorneys assigned to the higher titles were doing the work prescribed for those titles prior to reclassification, such work would have been ‘‘ out of title ’ ’ and would have constituted a promotion under Matter of Williams v. Morton (297 N. Y. 328) as well as under the Constitution and the applicable statutes. A promotion is defined by the Civil Service Law (§ 16, subd. 7) as “an increase in the salary or other compensation of any person holding an office or position * * * beyond the limit fixed for the grade in which such office or position is classified ”. Under this definition, attorneys in former grade 4 could be assigned the higher salaries — since there was no ‘1 limit ’ ’ fixed for the grade — without such constituting promotions (see Matter of Sanger v. Greene, 269 N. Y. 33; Matter of Crosby v. Board of Educ., 187 App. Div. 205, 209-210, affd. 226 N. Y. 705; People ex rel. Stokes v. Tully, 108 App. Div. 345, 351).

Matter of Williams v. Morton (supra) is not to the contrary. In that case, Dr. Conboy, an examining physician, grade 4, was employed by the Board of Education. In 1942 the board created the position of chief medical examiner, to be the head of the entire medical staff, and provided that appointment should be made to the position from an eligible list established by a competitive examination. Since the war emergency seemed to stand in the way of a permanent appointment to the position, the board in 1942 assigned the duties to Dr. Conboy on a ‘ ‘ provisional ’ ’ basis and granted him a leave of absence from his position of examining physician, grade 4. In July, 1946, three months after being notified by the Municipal Civil Service Commission that an examination for the position of chief medical examiner would have to be held, the board ‘ ‘ abolished ’ ’ the new position and restored Dr. Conboy to his former grade 4 position, giving him the same duties and salary, however, as he received as chief medical examiner. Under these facts we held that the employment of Dr. Conboy as head of the entire medical staff of the board constituted a promotion. The mere statement of the facts of the Williams case points up how different it is from the case before us.

In the instant case we are dealing with a determination of the City Civil Service Commission, made pursuant to statute and with the approval of the State Civil Service Commission, as a result of the joint efforts of the Department of Personnel, the Board of Estimate of the City of New York and the Bureau of the Budget, and as part of a comprehensive plan of reclassification. Here, the assignment of attorneys in grade 4 is said to conform with work actually and validly being performed within that grade. In the Williams case {supra) an additional title was created with exceptional duties admittedly beyond those which could be performed by grade 4 physicians, and the assignment thereto of Dr. Conboy, not pursuant to any plan of reclassification, was clearly intended to be and was a promotion. As for the purported abolition of the position and reassignment to grade 4, the court in effect disregarded this step and looked to the reality of the situation.

Petitioner also suggests that since all grade 4 attorneys were first reclassified as attorney, which is in the new grade 18, those who were later assigned to the higher positions in grades 23, 26 and 28 were promoted. The argument has no substance, however, since the original reclassification was provisional only, pending completion and subject to the results of the on-the-job survey, so that all incumbents would be entitled to receive the new minimal salary in the interim.

We have here, then, a situation of a group of attorneys who, as the result of competitive examinations, were duly appointed to the same grade 4, the highest competitive grade of legal service in the City of New York. There was no maximum on the amount of salary they might receive. They were subject to assignment to legal duties in the office of the Corporation Counsel. Concededly, their respective duties were different in character. It is but natural that some excelled others in competence and industry, and that some would discharge more important legal responsibilities than others in one of the largest law offices in the world. "When those in authority charged with reclassification considered the situation of these former grade 4 attorneys, they were necessarily obliged to face realities. They found that assignments of duties had been made, some of which were specialized and supervisory.

Considerations analogous to those present here were involved in Matter of Clare v. Silver (4 N Y 2d 107), where we unanimously upheld the reclassification after a job survey by the State Civil Service Commission of certain positions in the Kings County District Attorney’s office. Judge Van Voorhis, writing for a unanimous court, said (p. 112): ‘ Respondent never had a legal right to be assigned by the District Attorney to perform all of the duties of a county detective. He had to do what the District Attorney directed. For seven years before this classification took effect, the duties assigned to him had been limited to serving process. The civil service classification did not change the nature of respondent’s work, but merely systematized the work in the District Attorney’s office according to a pattern which had already been worked out. The specialization had taken place before the classification, which formalized-what had occurred.”

As already noted, the plan of reclassification and the designation of positions is not challenged; petitioner merely attacks the slotting into these positions of the present incumbents, claiming that this should not have been done without a promotional examination. We are in agreement with the Appellate Division that a reclassification which conforms the civil service structure to the realities which obtained in the operation of the agency prior to reclassification ’ ’ is valid. If, therefore, assignments were made pursuant thereto, they would not constitute promotions within the meaning of the Constitution and the Civil Service Laws (see Matter of Cook v. Kern, 278 N. Y. 195; Matter of Sanger v. Greene, supra; Matter of Sippell v. Dowd, 191 Misc. 558, 562, affd. 274 App. Div. 1027).

The case at bar more nearly fits in with the pattern of Matter of Cook v. Kern (supra) than with the pattern of Matter of Williams v. Morton (supra). In the Cook case, certain incumbents had been originally validly appointed to the position of “ stationary engineer ”, but had for years been performing the duties of “ stationary engineers in charge ” under an office designation. The Civil Service Commission officially created a new classification known as “ stationary engineer in charge ” and permitted said incumbents to continue to perform the duties of “ stationary engineer in charge ” without examination. We denied an application to oust them, and said (p. 199) : “ Having received original valid appointments, they have the right to remain in their positions, even though a new classification has been effected and new requirements exacted. [Citing cases.] ”

Thus the question remains: Was the assignment of the incumbents to the position of senior attorney, supervising attorney and principal attorney a recognition of the facts as they existed prior to reclassification? While both sides are of the opinion that a hearing is unnecessary, we are in accord with the Appellate Division that this question presents a triable issue (Civ. Prac. Act, § 1295). If upon a hearing Special Term finds there was no rational basis upon which respondents could determine that one or more persons had prior to reclassification performed the duties assigned after reclassification, the appointment of such person or persons may be invalidated without disturbing appointments which were validly made.

A word should be added concerning the Appellate Division’s opinion as to the nature of the evidence admissible at the hearing. It pointed out that “it is, generally, not the office of the court to take original evidence of the facts ” existing prior to, or as proposed should exist, after reclassification, and added: “ all that need be developed * * * is the basis upon which the several administrative agencies acted, at the time they acted, in promulgating the reclassification and reallocation ”. Petitioner claims that this would unduly restrict his proof upon a hearing. It is clear, however, that any competent and relevant proof petitioner may have, bearing on the triable issue here presented and showing that any of the underlying material on which the Commission based its determination has no basis in fact, would be admissible. (Civ. Prac. Act, § 1295; see Matter of Newbrand v. City of Yonkers, 285 N. Y. 164, 178; Matter of Hodgins v. Bingham, 196 N. Y. 123, 126-127; People ex rel. Lodes v. Department of Health, 189 N. Y. 187, 194; 1 Benjamin on Administrative Adjudication in State of New York, pp. 353-356; see, also, Third Annual Report of N. Y. Judicial Council, 1937, pp. 147-148.)

The order of the Appellate Division should be affirmed, and the matter remitted to Special Term for further proceedings not inconsistent with this opinion. Both questions certified should be answered in the affirmative.

Fuld, J. (dissenting). I agree that the Civil Service Commission could, as it did, reclassify positions in the legal service of the City of New York. However, once the Commission effected the reclassification by abolishing grade 4 and placing the employees who had been in that grade in a newly established salary grade, it could not, in my view, thereafter reallocate and transfer some of them to a still higher salary grade — and thus, in effect, promote them—by a noncompetitive re-evaluation of their actual duties. Such action, I very much fear, will open the door to evasion of essential and salutary civil service requirements. (E.g., Civil Service Law, § 16, subd. 7.) Promotion in the competitive civil service demands competitive examination, and we should not accept reclassification coupled with noncompetitive surveys of a particular employee’s duties as a substitute.

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

Order affirmed, without costs. Questions certified answered in the affirmative.

       There seems to be some question as to the exact number.


author:
      Per Curiam.
     Van Voorhis, J. (dissenting).

text:
    In the Matter of Benjamin J. Davis, Appellant, against Board of Elections of the City of New York, Respondents.
    Argued October 16, 1958;
    decided October 17, 1958.

      David M. Freedman for appellant.
    I. Section 138 of the Election Law is discriminatory and arbitrary and violative of the Constitution of the State of New York. (Matter of Burke v. Terry, 203 N. Y. 293; Matter of Hopper v. Britt, 204 N. Y. 524; People ex rel. Hotchkiss v. Smith, 206 N. Y. 231; Matter of Moore v. Walsh, 286 N. Y. 552.) II. The Board of Elections of the City of New York is not properly constituted as required by law and is therefore legally incapable of acting on the petition nominating petitioner for public office. HI. The Board of Elections erred in declaring signatures on the petition invalid as a matter of fact and of law.

      Abraham Gellinoff, James J. Leff and Richard T. Levy for Lisle C. Carter and another, respondents.
    I. The action of the three surviving members of the Board of Elections was legally-authorized and valid. (Morris v. Cashmore, 253 App. Div. 657, 278 N. Y. 730; People ex rel. Kingsland v. Palmer, 52 N. Y. 83.) II. The requirement that a signer must have been registered at the last preceding general election is constitutional. (Matter of Burke v. Terry, 203 N. Y. 293; People ex rel. Hotchkiss v. Smith, 206 N. Y. 231.) III. Having availed himself of the statute permitting independent nominations, appellant is precluded from attacking its constitutionality. (Shepherd v. Mount Vernon Trust Co., 269 N. Y. 234; Matter of Diocese of Rochester v. Planning Bd. of Town of Brighton, 1 N Y 2d 508.)
   Per Curiam.

On September 9, 1958 an independent nominating petition, nominating appellant Benjamin J. Davis for the office of State Senator, 21st Senatorial District, was filed in the office of the Board of Elections of the City of New York. There were 5,988 signatories to this nominating petition, and this group adopted the name of Peoples Bights Party. Subsequently, and as a result of written objections filed with it, the Board of Elections found that 3,580 of the signatories had not registered at the time of the last preceding general election. Additional signatures, not involved here, were found invalid for various other reasons. The invalidation of the afore-mentioned 3,580 signatures brought the total number of signatories below 3,000, the number required by law (Election Law, § 138, subd. 5, par. [c], cl. [4]); hence, the nominating petition was declared invalid.

Section 138 of the Election Law prescribes the requirements for independent nominating petitions, and subdivision 6 thereof provides, in part, as follows: “ The name of a person signing such a petition for an election for which voters are required to be registered shall not be counted if such person was not registered at the time of the last preceding general election as a qualified voter; * * V' Appellant's principal contention, arid the only one to which we deem it necessary to refer, is that this provision is arbitrary and violative of section 1 of article I of the Constitution of this State in that it disfranchises citizens who, though qualified to vote, did not register at the time of the last preceding general election.

Section 1 of article I of the New York Constitution declares that “No member of this state shall be disfranchised, or deprived of any of the rights or privileges secured to any citizen thereof, unless by the law of the land, or the judgment of his peers.” It is true, as the appellant asserts, that this franchise includes the right to participate in the nomination of candidates as well as the right to vote (Matter of Hopper v. Britt, 204 N. Y. 524, 531; Matter of Burke v. Terry, 203 N. Y. 293, 295). As this court said in Matter of Burke v. Terry (supra, p. 295): “ The franchise of which no ‘ member of this state ’ may be deprived is not only the right of citizens who possess the constitutional qualifications to vote for public officers at general and special elections, but it also includes the right to participate in the several methods established by law for the selection of candidates to be voted for”. But the exercise of these correlative rights is subject, in the manner of their exercise, to the plenary power of the Legislature to promulgate reasonable regulations for the conduct of elections (People ex rel. Hotchkiss v. Smith, 206 N. Y. 231, 242; Matter of Burke v. Terry, supra, pp. 295-296). Under subdivision 6 of section 138 the Legislature has conditioned the exercise of the right to sign an independent nominating petition upon registration at the time of the last preceding general election. Prior to 1954 that subdivision required registration during the election year. Doubtless the purpose of the 1954 amendment was to remedy practical difficulties in the administration of elections insofar as independent nominating petitions are concerned. It is presumed that there is a factual basis and necessity for this legislative action (Lincoln Bldg. Associates v. Barr, 1 N Y 2d 413, 415). Appellant has not rebutted this presumption. To the extent that this statute affects those citizens who did not avail themselves of the opportunity to register at the time of the last preceding general election, we perceive no constitutional infirmity in it. Presumably based upon administrative necessity, it requires only that a citizen preserve his right to sign an independent nominating petition by faithfully performing his duty as a citizen. The franchise conferred by the Constitution gives rise not only to a right, but also a duty, and this statute merely attaches reasonable consequences to the nonperformance of that duty in the interest of administrative necessity.

Appellant challenges the constitutionality of the statute also on the ground that it disfranchises those citizens who have become eligible to vote only since the last general election, e.g., voters recently coming of age, becoming naturalized, acquiring residence, etc. However, the record before us fails to disclose that even one of the 3,580 signatories in question was not qualified to register for the last preceding general election. Indeed, no such contention is made, as noted in the Appellate Division opinion. Consequently, we do not reach the question of whether section 138 violates section 1 of article I of the New York Constitution because it affects persons of that class. Appellant has made no showing that he is aggrieved by the statute.

Van Voorhis, J. (dissenting).

In my view the discrimination in section 138 of the Election Law against voters coming of age, becoming naturalized or changing their residences to the voting area within the year previous to the election, creates an infirmity which invalidates the entire provision requiring registration to vote at the election of the previous year. If that requirement is void, as I think it is, this independent nominating petition is valid and the petitioner is a person aggrieved. The signers of the petition have not estopped themselves or the petitioner so as to compel compliance by them with this void requirement. The petition was not rejected on the ground that any of the signers are now minors, aliens, illiterates, etc. The order1 appealed from should be reversed and the petition granted.

Chief Judge Conway and Judges Desmond, Dye, Fuld, Froessel and Burke concur in Per Curiam opinion; Judge Van Voorhis dissents and votes to reverse in a separate memorandum.

Order affirmed.


author: Per Curiam.

text:
    In the Matter of Howard F. Mansfield et al., Appellants, against Joseph Epstein et al., as Commissioners of Elections of the County of Ulster, State of New York, Respondents; Kenneth L. Wilson et al., Intervenors-Respondents.
    Argued October 24, 1958;
    decided October 24, 1958.

      Abraham J. Gellinoff and Andreiv M. Pinckney for appellants.
    I. The Board of Elections was required to accept the petition and file it. II. The court below had no jurisdiction to consider appellants’ article 78 proceeding as a proceeding under section 330 of the Election Law.

      Arthur A. Davis, Jr., for respondents.

      N. Le Van Haver and John E. Egan for intervenors-respondents.
    I. The statutory requirement is mandatory that the election district, ward, city or town in which the signers of an independent petition registered at the last preceding election must be stated in the petition. (Matter of McKeever v. Hornidge, 205 Misc. 362, 283 App. Div. 805, 306 N. Y. 876; Matter of Connors v. Messina, 207 Misc. 689, 285 App. Div. 959, 308 N. Y. 877; Matter of Lieblich v. Cohen, 262 App. Div. 1047, 286 N. Y. 559.) II. The action of a mere clerk in the Board of Elections in sending pro forma letters to independent nominees the same day their petitions were received, advising them of the time within which they must accept or decline a nomination, has no binding effect whatever on the board. (Matter of Booth, 119 Misc. 243; Matter of Cahill, 108 Misc. 449; Matter of Casler v. Board of Elections of Herkimer County, 131 Misc. 744.) III. On the merits, the instant petitions fail to contain the requisite number of valid signatures. IY. The petitioners are not entitled to any relief, irrespective of whether this proceeding be deemed to have been taken under article 78 or under section 330 of the Election Law.
   Per Curiam.

The Economy Party, an independent body, filed a petition nominating petitioners-appellants for public offices in Ulster County. Thereafter each of the individuals nominated by the Economy Party was notified by the Board of Elections of his nomination. Each petitioner accepted within the time designated by the Election Law. No objections were filed against the petition. On September 12, 1958 the Board of Elections informed the candidates that, since the two members of the Board of Elections could not agree on the validity of the petitions, the petition had been rejected.

The petitioners, by an order to show cause dated September 23, 1958 and returnable September 26, 1958, sought an order under article 78 of the Civil Practice Act directing the Commissioners of Elections of Ulster County, New York, to print the names of the petitioners for the respective offices designated in the petition of the Economy Party filed on September 9, 1958 on the ballot to be voted for on November 4, 1958. Thereafter on an affidavit dated September 30, 1958 an application was made to admit additional parties and a further application for intervention was made on the adjourned date of the hearing, October 8, 1958. Both applications were filed after the time within which a proceeding could be commenced under the Election statute. The intervention was allowed by the Judge at Special Term who treated the proceeding as one brought under section 330 of the Election Law, and not a proceeding brought for an order under article 78 of the Civil Practice Act, examined the nominating petition, ruled that there were only 296 valid signatures, declared the petition invalid and dismissed the appellant’s article 78 proceeding.

This determination apparently was reached as a result of the belief that the court was without power to issue an order of mandamus directed to the Commissioners of Election. In this respect Special Term was in error. Mandamus lies to compel ministerial acts (Matter of Small v. Moss, 279 N. Y. 288; Matter of City of New York v. Schoeck, 294 N. Y. 559). Under the Election Law the Commissioners of Elections’ power to examine independent nominating petitions for the purpose of ascertaining whether they are signed by a sufficient number of qualified voters is purely ministerial (Matter of Wicksel v. Cohen, 262 N. Y. 446); as such it is reviewable not only in a proceeding brought under section 330 of the Election Law, but likewise under article 78 of the Civil Practice Act. (See Matter of Schaffner v. Dooling, 258 App. Div. 735.)

In this case the article 78 proceeding was commenced prior to the expiration of the 14-day limitation provided by section 330 of the Election Law. However no objections were made within the time fixed by section 145 of the Election Law* and no proceeding was started pursuant to section 330 of the Election Law.

There is no question that the Supreme Court has summary jurisdiction of proceedings brought under section 330 of the Election Law, but in election cases a court may only exercise the powers granted to it within the framework of the procedures prescribed by the statute. Under these circumstances, Special Term, having no proceeding before it brought pursuant to section 330 of the Election Law, was powerless to initiate a proceeding or treat the article 78 proceeding as such after the expiration of the limitation period.

Although the petition on its face was “ presumptively valid ” (Election Law, § 103), the nominees in order to be entitled to mandamus had to show a clear legal right to the relief sought (Matter of Coombs v. Edwards, 280 N. Y. 361; Matter of Leitner v. New York Tel. Co., 277 N. Y. 180). Therefore, before the court could agree to order the printing of the names of the nominees on the ballot, it was necessary that the petitions be examined to determine whether the petitions had been properly signed by a sufficient number of qualified voters to entitle the nominees to a place on the ballot. In view of the discord and differences of opinion between the Commissioners of Election as to the validity of the petitions, it would have been futile to remit the matter to the Board of Elections for their attention, hence the court could either refer it to an Official Referee to take testimony (e.g., Matter of Schaffner v. Dooling, supra), or perform the task itself. The court elected to examine the petitions.

Since the appellants here do not challenge the decision of the court that there were only 296 valid signatures, but rather restrict their appeal to an attack on the perfectly legal manner in which the court exercised its jurisdiction, it follows that the order of the Appellate Division should be affirmed.

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

Order affirmed.

       Designated pursuant to section 5 of article VI of the State Constitution in the temporary absence of Judge Desmond.