author: Cooke, J.

text:
    Marine Midland Bank-New York, Appellant, v Graybar Electric Company, Inc., Respondent, and Dynamics Corporation of America, Interpleaded Respondent.
    Argued March 22, 1977;
    decided May 3, 1977

      William R. Norfolk, Bruce E. Clark and Richard G. Menaker, New York City, for appellant.

      Leonard A. Mentzer and Thomas A. Shaw, Jr., New York City, for respondent.

      Abraham Rotwein, New York City, for interpleaded respondent.
   Cooke, J.

The issue here is whether a bank is entitled, in the somewhat complex circumstances described, to set off a check payable to its customer, but deposited in an account with the bank, against that customer’s indebtedness to the bank.

Since at least December, 1962, Dynamics Corporation of America had obtained various loans from Marine Midland Bank-New York. In October, 1971, the then outstanding loans were consolidated into a single unsecured loan, evidenced by a promissory note to Marine Midland, which note, at Dynamics’ request, was renewed from time to time when it became due and payable.

In June, 1972, at Dynamics’ request, Marine Midland renewed the then outstanding promissory note, the renewal being accomplished by canceling the old note and obtaining a new note in the same amount. The new note, dated June 28, 1972, in the principal amount of $4,420,000, plus interest at 6Vz%, was due and payable by its terms on July 28, 1972.

On the morning of July 28, the bank received a written request from Dynamics for a further extension. Shortly after 10 that morning, a senior vice-president of the bank telephoned Dynamics to advise that the bank would not extend the note and to request that payment be made that day in accordance with the terms of the note. In the course of the conversation, when Dynamics responded that it could not pay the note, the bank advised that it would exercise its right to set off the credit balances in Dynamics’ accounts with it against Dynamics’ indebtedness on the note. Immediately thereafter, the bank confirmed, by means of a telegram, that the balances in the Dynamics accounts with the bank had been offset against Dynamics’ indebtedness to the bank.

One of Dynamics’ accounts at the bank was what is referred to as a "lock-box account” to which were forwarded customer remittance checks to Dynamics’ Waring Products Division. In accordance with an agreement between Dynamics and the bank, the latter was authorized to remove from a post-office lockbox any checks therein, indorse and deposit them in a Dynamics account at the bank, and process them for collection. Among the items removed from the lockbox and deposited in the Dynamics account on July 28, 1972, was a check, dated July 25, 1972, drawn by Graybar Electric Company, Inc., in the amount of $137,989.47 and payable to the order of Dynamics’ Waring Products Division. Although Dynamics contends that this check was seized by the bank in violation of the lockbox agreement, the bank responds that this check and others were removed from the box that day in the ordinary course of business and deposited in and credited to Dynamics’ account prior to the time the bank set off that account.

After accomplishing the setoff of Dynamics’ accounts, the bank forwarded the July 25 Graybar check, described above, to the drawee bank (the Crocker Citizens National Bank [of California]) for payment in the normal collection process. The check was, however, returned to the bank (Marine Midland) on or about August 1, 1972 with the notation that Graybar had issued a stop payment order on the check, the order having been made on July 31, 1972. On or about August 2, 1972, Dynamics filed a voluntary petition for an arrangement under chapter XI of the Federal Bankruptcy Act (US Code, tit 11, § 701 et seq.).

On August 11, 1972, Graybar drew a check in the amount of $75,095.94 payable to the Dynamics’ Waring Products Division. That check had a notation by Graybar indicating that it replaced the July 25 Graybar check (payment upon which had been stopped) in the amount of $137,989.47, less deductions for two other amounts. Despite this notation, Graybar contends that the August 11 check was never intended to be a substitute for the July 25 check. In this respect, an affidavit indicates that Dynamics’ position is that the obligations for which the July 25 check was sent were never satisfied, and that it did not accept the replacement check in satisfaction of those obligations.

By a letter of September 22, 1972, the bank demanded payment of the July 25 check from Graybar. In this communication, the bank acknowledged that Dynamics was in chapter XI proceedings, but stated that on July 28, 1972 it had applied the July 25 check as a setoff of defaulted obligations of Dynamics to the bank. The letter further stated that counsel had advised that the bank had acquired holder in due course status in regard to that check so that its right to receive payment thereon was not affected by any failure of Dynamics to meet its obligations to Graybar or by any payment which Graybar may have made directly to Dynamics.

On September 5, 1973, the bank commenced suit against Graybar asserting two causes of action. The first alleged that the bank was entitled to payment on the July 25 check as a holder in due course. The second alleged a right to recover damages in the amount of the check on the ground that Graybar, at Dynamics’ request, stopped payment on the check, thereby wrongfully depriving the bank of funds against which it had exercised a valid right of setoff.

Graybar answered the complaint and at the same time interpleaded Dynamics. In its pleadings, Graybar admitted that it owed the amount of the July 25 check ($137,984.47) to either Marine Midland or Dynamics, and sought judgment that Graybar be authorized to pay said amount into court and that, upon such payment, it be discharged from all liability to either Marine Midland or Dynamics in relation to such instrument.

The bank opposed Graybar’s discharge and moved for summary judgment against it on the check. Dynamics opposed the bank’s motion and cross-moved for summary judgment against the bank for the proceeds of the check and to dismiss the latter’s complaint. Special Term denied the bank’s application and dismissed its complaint. In addition, that court denied Graybar’s request for discharge, and denied Dynamics’ cross motion.

In its opinion, Special Term concluded that on the morning of July 28 when the bank set off the funds in the Dynamics accounts, the Dynamics loan was not in default because default woúld not occur until the close of the business day on which the note was due, and hence that the set off was invalid. The court also reasoned that Graybar’s replacement check (August 11) was payment of the debt for which the stopped check (July 25) was payable, and that therefore Dynamics could have no claim to the July 25 check, noting that the pleadings in the action did not place in issue any claim to sums allegedly due Dynamics by Graybar for purchase payments withheld to indemnify Graybar against payment on the stopped check.

The Appellate Division affirmed. In a memorandum, it commented that Special Term had held that the setoff was improper because the bank prematurely held Dynamics in default on the note, and expressed its view that the setoff was premature in another sense. This was so, it reasoned, because at the time of the setoff (the morning of July 28), the agency relationship regarding the lockbox had not terminated, and hence the debtor-creditor relationship necessarily precedent to the setoff could not have come into existence.

There should be an affirmance. Although the setoff was premature, for the reasons that follow, our holding is based on different grounds from those relied on by the courts below.

The bank should not have set off the deposits in the Dynamics account against its loan to Dynamics on the day that such loan was due and payable. In this regard, it is acknowledged that the Uniform Commercial Code does not unambiguously resolve the issue. The Uniform Commercial Code provides that in the case of a time instrument a cause of action does not accrue until the day after maturity (Uniform Commercial Code, § 3-122, subd [1], par [a]). Although the term "action” is defined as including a setoff, this definition appears in the context of an " 'Action’ in the sense of a judicial proceeding” (Uniform Commercial Code, § 1-201, subd [1]). For this reason, the bank urges that since its setoff is a form of remedial self-help, the Uniform Commercial Code’s pinpointing of when a cause of action accrues is not determinative of when a nonjudicial remedy may be utilized. Despite this, it should be held that the setoff was premature on July 28.

The pre-Uniform Commercial Code decisions relied on by the bank are also not dispositive of this issue. Of course, those holdings establish that a bank has a right to set off the accounts of a borrower against the matured indebtedness of that borrower (see Straus v Tradesmen’s Nat. Bank of N. Y., 122 NY 379, 382-383; Meyers v New York County Nat. Bank, 36 App Div 482, 484; see, also, Sandler v United Ind. Bank, 23 AD2d 567, 568). These cases, however, did not involve the precise question raised now—whether a bank must wait to exercise its right of setoff until the day following the day on which a time instrument is due and payable.

We hold that the rule should be that the bank’s right of setoff may not be exercised until the day after maturity of a time instrument. Furthermore, the bank’s arguments that the setoff is merely provisional and may be reversed if the debt is paid on the due date is beside the point. The effect of allowing a setoff on the day a loan matures can only be disruptive and gives the bank an advantage over competing claimants to the fund, an advantage not afforded in the case of judicial remedies under the Uniform Commercial Code. As a matter of commercial policy, the rule should be that all remedies, including a self-help remedy in the form of a setoff, cannot be exercised until there is a default, meaning that a setoff cannot be made until the day following the day on which the obligation is due and payable.

Although a bank acts prematurely when it sets off an amount from a borrower’s account on the day a loan to that borrower matures, that rule does not appear to be dispositive under the circumstances presented here. This is not a situation where a premature setoff conflicts with the claim of a third party made against the account on the same day as the setoff (compare Bethlehem Acceptance Corp. v Newman Motor Co., 230 Pa Super 441). Here, assuming the setoff was accomplished on the morning of Friday, July 28, a fact the bank disputes, the competing claim of Graybar in the form of a stop payment order did not occur until Monday, July 31, and notice was not received by the bank until August 1 at the earliest. Thus, even though the setoff was premature on the 28th, for purposes of a competing claim to the fund, the setoff arguably became operative on the next day, Saturday, July 29 —which was prior to the stop payment order. Accordingly, under the circumstances of this case, the bank’s acting prematurely would not necessarily be dispositive of the question of whether it is or is not entitled to payment on the check.

The proper resolution of this matter turns on the nature of the fund against which the bank seeks a setoff. This is not like the usual situation where a bank sets off funds that are already on deposit in an account, although here such funds were set off. The disputed fund is an additional amount represented by a check which was indorsed and deposited by the bank in the account against which, and on the same day that, the bank set off its loan against that account. Since the lockbox agreement authorized the bank to indorse checks for deposit in the account, under this arrangement the bank appears to have acquired the status of a "holder” of the check (see Uniform Commercial Code, § 1-201, subd [20]; § 4-205, subd [1]; § 3-202, subd [1]; see, also, Long Is. Nat. Bank v Zawada, 34 AD2d 1016). On this point, Dynamics contends that under the Uniform Commercial Code the bank was merely an agent for collection of the check (see Uniform Commercial Code, § 4-201, subd [1]). The bank’s response to this contention is that pursuant to subdivision (1) of section 4-201 "the continuance of ownership of an item by its owner and any rights of the owner to proceeds of the item are subject to rights of a collecting bank such as those resulting from outstanding advances on the item and valid rights of set-off” (emphasis supplied). As to Dynamics’ contention, the fact that it continued to be the owner of the check is not inconsistent with the bank’s status as holder. The bank’s response, however, raises a question as to the validity of its setoff.

The bank argues that as a holder it had the right to enforce payment in its own name (§ 3-301). Further, the bank argues that it need not prove that it is a holder in due course since Graybar has stated that it has no defense barring payment, but has resisted the bank’s demand solely on the theory that Dynamics has a competing claim to the instrument (see § 3-302, subd [1], par [c]; § 3-306, subd [a]). The bank states that Graybar may not resist its rights as a holder on this ground because Special Term, as affirmed, held (according to the bank) that "as a matter of law” Dynamics had no valid adverse claim to the check.

The bank’s analysis of the Special Term decision is overstated. That court, in concluding that Dynamics can have no claim to the check, was responding to Dynamics’ cross motion for summary judgment on the check. The court was not determining the issue of whether there was any claim that would defeat the bank’s rights as a holder. It did not determine that Dynamics had no further claims against Graybar, but only that such claims had not been placed in issue by the pleadings. The record reveals that Graybar owed Dynamics additional sums, and that there is at least some dispute between Dynamics and Graybar as to the items for which the replacement check was payment. For purposes of this issue, and in view of the willingness of Graybar to deposit the amount of the disputed check with the court for payment to either the bank or Dynamics, it simply cannot be said that there is no valid claim, by Dynamics. Whether the claim relates to invoices purportedly paid by the replacement check is disputed by Dynamics and under the Uniform Commercial Code this should be a sufficient claim, equitable or otherwise, to allow Graybar to resist payment unless the bank qualifies as a holder in due course (see Official Comment 2, McKinney’s Cons Laws of NY, Book 62 V2, Uniform Commercial Code, § 3-306).

To qualify as a holder in due course, the bank must show that it took the Graybar check for value, in good faith, and without notice of any defense against or claim to it on the part of any person (see Uniform Commercial Code, § 3-302, subd [1]). The courts below did not reach this issue because it was unnecessary to their resolution of the matter.

As to value, the bank contends that it took the July 25 check for value because under the Uniform Commercial Code "A holder takes the instrument for value (a) to the extent that * * * he acquires a security interest in or a lien on the instrument * * * or (b) when he takes the instrument in payment of or as security for an antecedent claim against any person whether or not the claim is due” (Uniform Commercial Code, § 3-303; emphasis added). Further, the bank notes that the Uniform Commercial Code accords to it a "security interest” in a check "to the extent to which credit given for the item is withdrawn or applied” (§ 4-208, subd [1], par [a]; emphasis added). Thus, the bank’s position is that, by its setoff, it took the check in payment of its antecedent loan, and also that by applying the credit for the check to the loan, the bank acquired a security interest therein. For these reasons, the bank argues that it has given value under the Uniform Commercial Code (see, also, § 4-209).

Dynamics argues that a bank and its depositor must "bilaterally” agree, either expressly or impliedly, to the creation of a security interest in an item. Examples of an implied agreement are said to be participating in the withdrawal of funds, or applying the credit which the bank has given for the item prior to collection. Furthermore, Dynamics argues, the bank must give value unconditionally and irrevocably by actually extinguishing the depositor’s debt upon receipt of the check, even though not yet collected. Dynamics is thus arguing that under the circumstances presented here the bank has not given value.

A bank, of course, gives value to the extent that a credit given for an item is withdrawn by the party whose account was credited (Uniform Commercial Code, § 4-208, subd [1], par [a]; see, e.g., Long Is. Nat. Bank v Zawada, 34 AD2d 1016, supra). Value is also given by a holder when it takes a check in payment of, or as security for, an antecedent debt (§ 3-303, subd [b]; see, e.g., Kelso & Co. v Ellis, 224 NY 528, 536-537; American Exch. Nat. Bank v New York Belting & Packing Co., 148 NY 698, 703). Long before the enactment of the Uniform Commercial Code, however, the entry of a credit on a bank’s books was held not to be parting with value under circumstances manifesting that the pre-existing debt or a part thereof was not, in fact, extinguished in consideration for the item for which the credit was given (see Sixth Nat. Bank of City of NY. v Lorillard Brick Works Co., 18 NYS 861, affd 136 NY 667). The basis for that decision was that the bookkeeping entry of the credit was not a parting with value (see, also, Citizens’ State Bank v Cowles, 180 NY 346, 349; see, generally, Holders In Due Course—Bank, Ann., 59 ALR2d 1173, § 8, at pp 1195-1197).

These events present somewhat of a hybrid situation in that the bank first gave Dynamics a credit for the Graybar check and then applied this credit, by way of setoff, to Dynamics’ indebtedness to it. A literal reading of the Uniform Commercial Code suggests that under section 4-208 (subd [1], par [a]) and subdivision (b) of section 3-303 the net result of the credit followed by the setoff is that the bank had taken the check for value. The difficulty with this analysis is, however, that the credit given to Dynamics’ account was provisional because the bank could and did reverse the credit after notice of the stop payment order, thereby reinstating that portion of the loan against which the credit was set off.

Considering first the credit given to Dynamics’ account for the Graybar check, it is established that the giving of a provisional credit is not a parting with value under the Uniform Commercial Code. In discussing the notion that it is not necessary to give holder in due course status to one who has not actually paid value, the Official Commentary to the Uniform Commercial Code cites as an illustration "the bank credit not drawn upon, which can be and is revoked when a claim or defense appears” (Official Comment 3, Uniform Commercial Code, § 3-303; see Bankers Trust Co. v Nagler, 16 AD2d 477; see, also, Brady, Bank Checks [4th ed], § 4.6, p 77).

An exception to the proposition that the mere crediting of an account for a deposited check is not a giving of value is when the credit, though not drawn upon, is available for "withdrawal as of right” (Uniform Commercial Code, § 4-208, subd [1], par [b]). A credit is available for "withdrawal as of right” within a reasonable time after the bank learns of a final settlement in the collection process of the check for which the credit is given (see § 4-213, subd [4], par [a]). Until such final settlement, in the absence of any agreement between the bank and the depositor, the bank should not be viewed as having given value until there is a final payment of the credited check (see White & Summers, Uniform Commercial Code, § 14-5, p 468 [1972]). In this respect, the bank suggests that because there is a dispute over whether it permitted Dynamics to draw on credits for uncollected checks, a question of fact is raised, the resolution of which requires an evidentiary hearing. The record does not, however, reveal any agreement permitting withdrawal by the bank, and the mere conclusory statements of the bank officers are insufficient to raise a question of fact (see Semperit of Amer. v Todd Equip. Leasing Co., 51 AD2d 908, affd 41 NY2d 933). The short of the matter is that the credit given here was not available to Dynamics.

Turning then to the argument that by applying the credit by way of setoff to Dynamics’ indebtedness the bank gave value, the following is relevant. The clearest instance of giving value in this sort of case is where a bank actually extinguishes a debt by, for example, parting with a note in exchange for a check and then seeking to collect on the check (see Citizens Bank of Booneville v National Bank of Commerce, 334 F2d 257). With respect to subdivision (1) of section 4-208, however, one text has suggested that its purpose was to give "the bank protection in any case in which it is not clear that the bank purchased the item outright, but in which it is clear that the bank has done something, of advantage to the depositor, more than giving the depositor a mere credit on the bank’s books” (Clarke, Bailey & Young, Bank Deposits and Collections [1963], p 56). Here, the bank argues that by applying the credit to Dynamics’ indebtedness it was giving value as contemplated under section 4-208.

This argument should be rejected. To say that the bank was doing something of advantage to Dynamics by applying the credit to that depositor’s indebtedness is to ignore what actually occurred. The bank was merely seeking to protect itself and not giving value, in any traditional sense, or under the Uniform Commercial Code. Since the credit given to the Dynamics account was not, as noted, available to Dynamics, there is no reason for allowing the bank to benefit from this credit, particularly since the bank reinstated that portion of the debt against which the credit was applied upon learning that payment was not to be forthcoming on the check. Under this analysis the bank is in no worse position than any other creditor, and the bank’s unilateral agreement to take the credit for the indebtedness, conditioned on payment of the check for which the credit was given, is recognized for what it was—an attempt to recoup its losses.

This is not to diminish the bank’s right of setoff of mutual debts in a bankruptcy situation (see Studley v Boylston Bank, 229 US 523; New York County Bank v Massey, 192 US 138). Nor is this holding intended to suggest that the setoff was impermissible simply because the check was uncollected at the time of the setoff (see Bath Nat. Bank v Sonnenstrahl, 249 NY 391). Rather, this determination is based on the conclusion that what the bank did was merely give a provisional credit for the Graybar check. That the bank unilaterally agreed to apply this provisional credit to Dynamics’ indebtedness should not elevate the transaction to the level of those instances where value is considered to be given under the Uniform Commercial Code. Therefore, since the bank did not give value, it is not a holder in due course and cannot recover on the check.

Accordingly, for the reasons stated, the order of the Appellate Division should be affirmed, with costs.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler and Fuchsberg concur.

Order affirmed.


source: Caselaw Access Project

author: Jasen, J.

license: Public Domain

text:
    A. Holly Patterson et al., Constituting the Jones Beach State Parkway Authority, et al., Respondents-Appellants, v Hugh Carey, as Governor of the State of New York, et al., Defendants, and Louis J. Lefkowitz, as Attorney-General of the State of New York, Appellant-Respondent.
    Argued February 17, 1977;
    decided May 10, 1977

      Louis J. Lefkowitz, Attorney-General (Douglas S. Dales, Jr., and Ruth Kessler Toch of counsel), Albany, for appellant-respondent.

      Bernard S. Meyer and James F. Oliviero, Mineola, for A. Holly Patterson and others, respondents-appellants.

      Hugh N. Fryer, Bradford J. Race, Jr., William J. A. Sparks and Francine J. Morris, New York City, for The Chase Manhattan Bank, N. A., respondent-appellant.

      Charles L. Kades, Clarence Fried and Howard F. Husum,
      New York City, for New York State Bridge Authority, amicus curiae.

      Anthony S. Genovese and Michael F. Fitzgerald, New York City, for Automobile Club of New York, Inc., amicus curiae.

   Jasen, J.

By its enactment of section 153-c of the Public Authorities Law, the Legislature rescinded an increase in the toll charged motorists by the Jones Beach State Parkway Authority for the use of the Southern State Parkway. The statute also provides that the increase cannot be restored nor any future increase imposed unless the authority complies with a new four-stage review process. The issue on this appeal is whether the statute violates either the due process clause of the State Constitution or the contract clause of the Federal Constitution. We hold that it violates both. A further question is whether the Legislature has improperly interfered with the State Comptroller’s discretionary power to supervise the financial accounts of public authorities. We hold that it has.

The Jones Beach State Parkway Authority was created in 1933 for the purpose of financing and constructing the Jones Beach State Parkway and other approaches to Jones Beach State Park. The necessary capital was obtained by the authority through the sale of revenue bonds to the Federal Reconstruction Finance Corporation. The authority is a public benefit corporation (see General Construction Law, § 66, subd 4) with a membership identical to that of the Long Island State Park Commission which has jurisdiction over Jones Beach State Park. (Public Authorities Law, § 152; Temporary State Commission on Coordination of State Activities, Staff Report on Public Authorities under New York State, Legis Doc [1956], No. 46, p 23.) By 1953, the extraordinary post-war increase in the population of Long Island created a need to improve existing streets and highways; roads designed in an earlier age to serve rural, not suburban, -communities. The Legislature determined that, as part of a massive road improvement program, it was necessary to reconstruct, widen, and improve the Southern State Parkway. In order to avoid "pledging the credit of the state and its municipalities”, the Legislature entrusted the task to the Jones Beach State Parkway Authority. (L 1953, ch 114, §§ 1, 2.) The authority was given the explicit power to "reconstruct, widen and otherwise improve and thereafter maintain, reconstruct and operate (a) Southern state parkway, together with incidental parkway facilities now existing or hereafter constructed, on and along said parkway” (Public Authorities Law, § 153-b, subd 2).

The reconstruction of the Southern State Parkway was a project distinct from the authority’s original purpose and was financed separately. (Staff Report, p 23.) The authority issued bonds that were sold to the general investing public. In conjunction with the projected bond issue, the State adhered to its pledge, first made in 1939, not to limit or alter the rights vested in the authority to the detriment of holders of authority bonds issued after January 1, 1939. (Public Authorities Law, § 158-a.) The Parkway reconstruction program was designed as a "self-liquidating” improvement; the cost of the project was to be borne by those who would benefit by it. To that end, the authority was empowered "[t]o charge tolls for the use of the part of the Southern state parkway improved by the authority subject to and in accordance with any agreements with bondholders made as hereinafter provided. The toll shall be ten cents unless the revenues from such tolls and the income from the facilities authorized by the foregoing provisions of this section are insufficient to meet all obligations of such agreements and to pay the costs of operating and maintaining the parkways and facilities operated and maintained by the authority pursuant to the foregoing provisions of this section. The revenue from such tolls and the income from such facilities shall be used only to meet such obligations and to pay the cost of constructing, reconstructing, operating and maintaining such parkways and facilities” (Public Authorities Law, § 153-b, subd 5.) Toll receipts were pledged to secure the authority’s obligation on its bonds. (See Public Authorities Law, § 153-b, subd 6.)

Absent contrary agreement with the bondholders, the State Comptroller was to serve as the authority’s fiscal agent. The State Comptroller and his authorized representatives were empowered "from time to time to examine the accounts and books of the parkway authority, including its receipts, disbursements, contracts, leases, sinking funds, investments and other matter relating to its financial standing.” (Public Authorities Law, § 156.) The reconstruction was successfully accomplished and toll booths were erected at the westerly terminus of the Parkway at Valley Stream. The improved Parkway became a major artery for the flow of traffic, principally commuter in nature, between New York City and eastern Long Island. As the years passed, the authority collected the 10 cent toll and applied the proceeds to the cost of its operations and to the repayment of its bonds. Of the $40,000,-000 in bonds issued in 1954, only approximately $8,300,000 remain outstanding.

In 1974, the advisability of an increase in the toll was raised for the first time. A nationwide scarcity of petroleum resulted in a reduction in use of private gasoline-powered vehicles and, hence, to a diminution in the authority’s main source of revenue. The authority commissioned a study on the projected traffic-generated revenue and projected levels of expense. At the same time, the authority undertook consideration of the need to improve the highway. The study reported that it would cost approximately $17,000,000 to maintain the highway in accordance with present safety standards. The projected "major” improvements, to be completed over a five-year span, included the installation of stress relief joints, pavement resurfacing, bridge repairs, as well as the construction and replacement of guardrails and median barriers. On the other hand, a long-range "capital” improvement program was also planned which would entail the ultimate expenditure of approximately $76,000,000 to be accomplished gradually as funding became available. Capital construction envisaged by this program consisted of the rebuilding of six interchanges, the widening of the Parkway, a roadway lighting program and the installation of a path for bicycles. The study concluded that the existing toll was insufficient to meet the authority’s present expenses and debt service obligations. Further, only a 25 cent toll would enable the authority to cover its expenses, implement the major improvement program fully, and raise approximately 40% of the cost of capital reconstruction.

On December 13, 1974, the authority announced that the toll would be increased to 25 cents, effective January 1, 1975. The increase in toll led to a rise in traffic levels on the local streets in the vicinity of the toll plaza as motorists made detours in attempt to avoid paying the increased toll. The increase was politically sensitive. The controversy was heightened when the State Comptroller, on February 21, 1975, issued a report to the effect that only a 5 cent increase in the toll, when coupled with certain accounting adjustments, would provide enough revenue for current expenses and for the major improvement program. Three weeks later, the Governor signed into law chapter 17 of the Laws of 1975 which rescinded the increase in the toll.

The statute provides that at least 120 days prior to the effective date of any proposed toll increase, the authority must submit a detailed written report to the State Comptroller justifying the need for an increase with various fiscal data. (Public Authorities Law, § 153-c, subd 2.) The Comptroller "shall review any proposed increase or imposition in tolls and the report required by subdivision two of this section and within sixty days make public his findings, conclusions and recommendations.” (Subd 3.) In preparing his views, the Comptroller may enlist the assistance of the Commissioner of Transportation. The authority must hold a public hearing upon the proposed increase at least 15 days prior to its effective date. Notice of the hearing must be published and the reports of authority and Comptroller made available for public inspection. "Following such public hearing, the authority shall reconsider the proposed increase or imposition and may rescind, change or modify the proposal as it then deems necessary or advisable.” (Subd 4.)

The authority and the institutional trustee for the bondholders commenced an action for a judgment declaring section 153-c of the Public Authorities Law unconstitutional. Special Term held, on plaintiffs’ motion for summary judgment, that the provision rescinding the toll increase (subd 1) was an impairment of contract in violation of the Federal Constitution and enjoined the defendants from enforcing it. However, the court also concluded that the other provisions of the statute, relating to future toll increases, did not impair the contract rights of the bondholders and, even assuming a "technical” impairment, should be sustained as a reasonable exercise of the police power. (83 Misc 2d 372.) The Appellate Division, by a divided court, affirmed the judgment of Special Term. (52 AD2d 171.) Two Justices dissented in part, taking the view that, even as to the toll rollback provision, the statute did not impair the rights of the bondholders.

We hold that the statute, in its entirety, is unconstitutional and would modify the order of the Appellate Division accordingly. The statute deprives the bondholders of property without due process of law in violation of the State Constitution. Further, the statute impairs the obligation of the State’s own contract with the bondholders and, thus, violates the contract clause of the Federal Constitution. Finally, the Legislature has infringed upon the State Comptroller’s discretionary power to supervise the financial accounts of public authorities.

The State Constitution directs that no person shall be deprived of life, liberty or property without due process of law. (NY Const, art I, § 6.) Quite apart from any question presented by the Federal impairment clause, the State may not deprive a party to a contract of an essential contractual attribute without due process of law. "Depriving an owner of property of one of its essential attributes, is depriving him of his property within the constitutional provision” and, absent due process, works an impermissible "forfeiture of the right given by the contract.” (People ex rel. Manhattan Sav. Inst. of City of N.Y. v Otis, 90 NY 48, 52a [Andrews, Ch. J.].)

In this case, the State granted to the authority the power to increase the toll on the Southern State Parkway and pledged not to limit or alter the rights vested in the authority to the detriment of the bondholders. (Public Authorities Law, §§ 153-a, 153-b, subd 5.) Since the toll is the sole source of funds for bond repayment, any limitation on the authority’s power to collect a toll sufficient to pay the bonds deprives the bondholders of an essential attribute of their contract with the authority and with the State and jeopardizes their investment. The statute under consideration suspends a toll increase imposed by the authority and conditions any future increases upon compliance with a complicated and time-consuming procedure. Bondholders were promised, as part of the arrangement which financed the reconstruction of the highway, that the authority could raise the toll if the authority, in its discretion, deemed an increase necessary to pay its operating expenses and meet its bond obligations. With the present statute, the Legislature has diminished the bondholders’ rights by suspending one increase and limiting the authority’s previously broad discretion to impose future increases. Thus, the statute has deprived the bondholders of a right granted by their contract with the authority and the State.

We conclude that the deprivation of the bondholders’ contractual right was achieved without due process of law. Where a statute is challenged on nonprocedural grounds as violative of due process, the test is whether there is "some fair, just and reasonable connection” between the statute and "the promotion of the health, comfort, safety and welfare of society”. (E.g., Montgomery v Daniels, 38 NY2d 41, 54; Nettleton Co. v Diamond, 27 NY2d 182, 193, app dsmd sub nom. Reptile Prods. Assn. v Diamond, 401 US 969; People v Bunis, 9 NY2d 1, 4.) The only asserted justification for the statute was the need to reduce traffic congestion in local streets occasioned by streams of motorists attempting to detour the authority’s toll booths. But, as the Appellate Division noted in another connection, the statute does not prohibit increases, it merely provides a procedure which delays the imposition of an increase for 120 days. (52 AD2d, at p 177.) After the procedure has been complied with, the authority may nevertheless put the proposed increase into effect and motorists are free to resume, with impunity, their toll-dodging ways. The statute does not direct that the 120-day interval be utilized to develop programs to prevent or reduce toll dodging (such as closing off exits within the vicinity of the toll plaza or building additional toll stations on exit ramps) nor does it direct that steps be taken to improve or widen local streets in anticipation of heavy traffic. Traffic will be as congested as it was before. Thus, it cannot be said that the means provided by the statute are reasonably related to the goal to be achieved. There is no fair, just or reasonable connection between the statutory procedure for increasing tolls and the goal of curtailing traffic congestion. Viewed in this light, the statute is arbitrary and deprives bondholders of a contractual right without due process of law.

The Federal Constitution bars the States from enacting legislation impairing the obligation of contracts. (US Const, art I, § 10.) In its covenant with the holders of authority bonds, the State pledged to vest the authority with the power to raise tolls, in its sole discretion, if toll revenues become insufficient to meet the obligations of indebtedness and to pay the costs of operating and maintaining the Parkway and related facilities. (Public Authorities Law, § 153-b, subd 5.) The State also pledged not to limit or alter the rights vested in the authority to the detriment of authority bondholders. (Public Authorities Law, § 158-a.) Since toll revenues are the sole source of funds for bond-repayment, the provision granting the authority the power to increase tolls was an important security provision. Bondholders were guaranteed that the authority would have the necessary power to raise tolls in order to pay authority obligations. This, obviously, was no small concession, nor was it superfluous. A statute • which conditions the authority’s power to increase tolls upon compliance with a review procedure involving the intervention of others from outside the authority is a blow to the independence of the authority’s judgment. Intercession by others outside the authority is not what the bondholders contracted for.

The recent decision by the United States Supreme Court in United States Trust Co. v New Jersey (431 US 1) is instructive. The States of New York and New Jersey had agreed that neither State nor the Port Authority of New York and New Jersey would apply Port Authority revenues to the payment of debts, beyond a specified amount, incurred as a result of mass transportation operations. Both States later repealed this covenant. The court invalidated the repeal on the ground that the States had impaired an obligation of contract. "As a security provision, the covenant was not superfluous; it limited the Port Authority’s deficits and thus protected the general reserve fund from depletion * * * Its outright repeal totally eliminated an important security provision and thus impaired the obligation of the States’ contract.” (431 US, at p 19.)

Just as abrogation of a debt limit threatened the rights of Port Authority bondholders, infringement upon the right to set a proper toll invaded the contractual rights of Jones Beach State Parkway Authority bondholders. It is not necessary that the impairment totally destroy the obligation of the contract. The extent of the impairment is, however, a relevant factor in considering the reasonableness of the impairment. (United States Trust Co. v New Jersey, 431 US 1, 21, supra.)

The State argues that its impairment was justified by an appropriate exercise of the police power. It is true, of course, that the contract clause is not an absolute bar to subsequent modification of a State’s own financial obligations. "As with laws impairing the obligations of private contracts, an impairment may be constitutional if it is reasonable and necessary to serve an important public purpose. In applying this standard, however, complete deference to a legislative assessment of reasonableness and necessity is not appropriate because the State’s self-interest is at stake. A governmental entity can always find a use for extra money, especially when taxes do not have to be raised. If a State could reduce its financial obligations whenever it wanted to spend the money for what it regarded as an important public purpose, the Contract Clause would provide no protection at all.” (United States Trust Co. v New Jersey, 431 US 1, 25-26, supra.) The nonimpairment clause has never been so construed as to prevent "limited and temporary interpositions with respect to the enforcement of contracts if made necessary by a great public calamity”. (Home Bldg. & Loan Assn. v Blaisdell, 290 US 398, 439.)

However, we cannot say that the asserted traffic emergency was a sufficiently important public purpose to warrant interference with contractual rights. Although there undoubtedly was inconvenience, the record does not reveal any indication that the traffic situation had been so aggravated as to cause extreme difficulties of ingress and egress to the affected areas. Nor can it be said that the statute provided reasonable and necessary means to achieve the public purpose. As previously noted, the statute, at most, delays an increase for a period of 120 days and does not specify that the local communities affected take any corrective action at all to alleviate the problem. Similarly, it has not been shown that the only means to cure the traffic situation was to invade the rights of bondholders. Therefore, we conclude that the statute is in violation of the Federal nonimpairment clause. Because the review procedure is as much an impairment of contractual rights as is the toll rollback itself, the entire statute must be invalidated.

Finally, we conclude that the Legislature has impermissibly infringed upon State Comptroller’s exercise of his discretionary power to supervise the financial accounts of public authorities. For purposes of this discussion, we assume, but do not decide, that the State Comptroller’s power to supervise accounts encompasses authority to review such matters as toll increases.

The Constitution provides that the accounts of any public corporation are subject to the supervision of the State Comptroller. (NY Const., art X, § 5.) The State Comptroller’s responsibility with respect to public corporations must be contrasted with the Comptroller’s constitutional jurisdiction over the State and its political subdivisions. The State Comptroller was made an independent auditing official for the affairs of the State. The Legislature was given the power to "define his powers and duties” and to further assign him the supervision of accounts of any political subdivision. However, the Legislature was precluded from assigning the Comptroller any administrative duties, save those incidental to the performance of the Comptroller’s constitutional functions. (NY Const, art V, § 1.) Article X of the Constitution pointedly employs the same language—"supervision of accounts”—found in article V (III Revised Record of the 1938 New York State Constitutional Convention, p 2262.) Yet the Constitution does not grant to the Legislature the power to define the Comptroller’s powers and duties with respect to public corporations. This crucial difference is explained by the intent of the amendment’s draftsman to build constitutional safeguards that the Legislature could not alter. Hence, the Legislature was not given the power to control the Comptroller’s exercise of discretion since, in doing so, the Legislature might, it was feared, interfere unduly with the independence of the Comptroller’s supervision. Nor is it possible to read the article V and the article X provisions together (see 1959 Opns of Atty Gen 55, 56). While the Legislature may regulate the Comptroller’s duties in regard to political subdivisions, public benefit corporations are not political subdivisions of the State. We have stated many times that, in the words of Judge Fuld, "a public authority enjoys an existence separate and apart from the State, even though it exercises a governmental function”. (Matter of Plumbing, Heating, Piping & Air Conditioning Contrs. Assn. v New York State Thruway Auth., 5 NY2d 420, 424; Matter of New York Post Corp. v Moses, 10 NY2d 199, 203.)

Under the plain language of article X, the State Comptroller is granted the discretionary authority to supervise the accounts of public corporations. In exercising his discretion, the Comptroller is guided by "his personal responsibility and commitment to his oath of office”. (Cf. Sgaglione v Levitt, 37 NY2d 507, 512.) The Legislature is powerless to mandate how the Comptroller, an independently elected official, is to exercise his constitutional discretion. (Sgaglione v Levitt, supra.) The statute under review in this case is invalid since it purports to mandate that the Comptroller exercise his supervision over a particular topic in a particular manner. Moreover, it would impose upon the Comptroller the power and duty to conduct a study and review not merely of accounts but of a subject of administrative and operational concern in the management of the authority’s business. The Comptroller’s function was perceived by the constitutional draftsmen as providing an independent oversight of the accounts of previously unchecked public corporations.

Accordingly, the order of the Appellate Division should be modified to declare section 153-c of the Public Authorities Law unconstitutional in its entirety and, as modified, affirmed.

Chief Judge Breitel and Judges Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur.

Order modified, with costs to plaintiffs, in accordance with the opinion herein and, as so modified, affirmed.

       The court dismissed the complaint against defendants Governor Hugh Carey and State Comptroller Authur Levitt on the ground that they were not proper parties to this action. This issue is not before us. We do agree with Special Term, however, that the governmental plaintiffs, as well as the institutional representative of the bondholders, have sufficient standing to maintain this action. (See Matter of Jeter v Ellenville Cent. School Dist., 41 NY2d 283, 287.)


text:
    The People of the State of New York, Appellant, v Melvin Dlugash, Respondent.
    Argued March 29, 1977;
    decided May 12, 1977

      Eugene Gold, District Attorney (Steven W. Fisher and Helman R. Brook of counsel), Brooklyn, for appellant.

      Alan M. Dershowitz, admitted on motion pro hac vice, Cambridge, Mass., and Jeffrey R. Cohen, New York City, for respondent.
   Jasen, J.

The criminal law is of ancient origin, but criminal liability for attempt to commit a crime is comparatively recent. At the root of the concept of attempt liability are the very aims and purposes of penal law. The ultimate issue is whether an individual’s intentions and actions, though failing to achieve a manifest and malevolent criminal purpose, constitute a danger to organized society of sufficient magnitude to warrant the imposition of criminal sanctions. Difficulties in theoretical analysis and concomitant debate over very pragmatic questions of blameworthiness appear dramatically in reference to situations where the criminal attempt failed to achieve its purpose solely because the factual or legal context in which the individual acted was not as the actor supposed them to be. Phrased somewhat differently, the concern centers on whether an individual should be liable for an attempt to commit a crime when, unknown to him, it was impossible to successfully complete the crime attempted. For years, serious studies have been made on the subject in an effort to resolve the continuing controversy when, if at all, the impossibility of successfully completing the criminal act should preclude liability for even making the futile attempt. The 1967 revision of the Penal Law approached the impossibility defense to the inchoate crime of attempt in a novel fashion. The statute provides that, if a person engages in conduct which would otherwise constitute an attempt to commit a crime, "it is no defense to a prosecution for such attempt that the crime charged to have been attempted was, under the attendant circumstances, factually or legally impossible of commission, if such crime could have been committed had the attendant circumstances been as such person believed them to be.” (Penal Law, § 110.10.) This appeal presents to us, for the first time, a case involving the application of the modern statute. We hold that, under the proof presented by the People at trial, defendant Melvin Dlugash may be held for attempted murder, though the target of the attempt may have already been slain, by the hand of another, when Dlugash made his felonious attempt.

On December 22, 1973, Michael Geller, 25 years old, was found shot to death in the bedroom of his Brooklyn apartment. The body, which had literally been riddled by bullets, was found lying faceup on the floor. An autopsy revealed that the victim had been shot in the face and head no less than seven times. Powder burns on the face indicated that the shots had been fired from within one foot of the victim. Four small caliber bullets were recovered from the victim’s skull. The victim had also been critically wounded in the chest. One heavy caliber bullet passed through the left lung, penetrated the heart chamber, pierced the left ventricle of the heart upon entrance and again upon exit, and lodged in the victim’s torso. A second bullet entered the left lung and passed through to the chest, but without reaching the heart area. Although the second bullet was damaged beyond identification, the bullet tracks indicated that these wounds were also inflicted by a bullet of heavy caliber. A tenth bullet, of unknown caliber, passed through the thumb of the victim’s left hand. The autopsy report listed the cause of death as "[m]ultiple bullet wounds of head and chest with brain injury and massive bilateral hemothorax with penetration of [the] heart.” Subsequent ballistics examination established that the four bullets recovered from the victim’s head were .25 caliber bullets and that the heart-piercing bullet was of .38 caliber.

Detective Joseph Carrasquillo of the New York City Police Department was assigned to investigate the homicide. On December 27, 1973, five days after the discovery of the body, Detective Carrasquillo and a fellow officer went to the defendant’s residence in an effort to locate him. The officers arrived at approximately 6:00 p.m. The defendant answered the door and, when informed that the officers were investigating the death of Michael Geller, a friend of his, defendant invited the officers into the house. Detective Carrasquillo informed defendant that the officers desired any information defendant might have regarding the death of Geller and, since defendant was regarded as a suspect, administered the standard preinterrogation warnings. The defendant told the officers that he and another friend, Joe Bush, had just returned from a four- or five-day trip "upstate someplace” and learned of Geller’s death only upon his return. Since Bush was also a suspect in the case and defendant admitted knowing Bush, defendant agreed to accompany the officers to the station house for the purposes of identifying photographs of Bush and of lending assistance to the investigation. Upon arrival at the police station, Detective Carrasquillo and the defendant went directly into an interview room. Carrasquillo advised the defendant that he had witnesses and information to the effect that as late as 7:00 p.m. on the day before the body was found, defendant had been observed carrying a .25 caliber pistol. Once again, Carrasquillo administered the standard preinterrogation statement of rights. The defendant then proceeded to relate his version of the events which culminated in the death of Geller. Defendant stated that, on the night of December 21, 1973, he, Bush and Geller had been out drinking. Bush had been staying at Geller’s apartment and, during the course of the evening, Geller several times demanded that Bush pay $100 towards the rent on the apartment. According to defendant, Bush rejected these demands, telling Geller that "you better shut up or you’re going to get a bullet”. All three returned to Geller’s apartment at approximately midnight, took seats in the bedroom, and continued to drink until sometime between 3:00 and 3:30 in the morning. When Geller again pressed his demand for rent money, Bush drew his .38 caliber pistol, aimed it at Geller and fired three times. Geller fell to the floor. After the passage of a few minutes, perhaps two, perhaps as much as five, defendant walked over to the fallen Geller, drew his .25 caliber pistol, and fired approximately five shots in the victim’s head and face. Defendant contended that, by the time he fired the shots, "it looked like Mike Geller was already dead”. After the shots were fired, defendant and Bush walked to the apartment of a female acquaintance. Bush removed his shirt, wrapped the two guns and a knife in it, and left the apartment, telling Dlugash that he intended to dispose of the weapons. Bush returned 10 or 15 minutes later and stated that he had thrown the weapons down a sewer two or three blocks away.

After Carrasquillo had taken the bulk of the statement, he asked the defendant why he would do such a thing. According to Carrasquillo, the defendant said, "gee, I really don’t know”. Carrasquillo repeated the question 10 minutes later, but received the same response. After a while, Carrasquillo asked the question for a third time and defendant replied, "well, gee, I guess it must have been because I was afraid of Joe Bush.”

At approximately 9:00 p.m., the defendant repeated the substance of his statement to an Assistant District Attorney. Defendant added that the time he shot at Geller, Geller was not moving and his eyes were closed. While he did not check for a pulse, defendant stated that Geller had not been doing anything to him at the time he shot because "Mike was dead”.

Defendant was indicted by the Grand Jury of Kings County on a single count of murder in that, acting in concert with another person actually present, he intentionally caused the death of Michael Geller. At the trial, there were four principal prosecution witnesses: Detective Carrasquillo, the Assistant District Attorney who took the second admission, and two physicians from the office of the New York City Chief Medical Examiner. For proof of defendant’s culpability, the prosecution relied upon defendant’s own admissions as related by the detective and the prosecutor. From the physicians, the prosecution sought to establish that Geller was still alive at the time defendant shot at him. Both physicians testified that each of the two chest wounds, for which defendant alleged Bush to be responsible, would have caused death without prompt medical attention. However, the victim would have remained alive until such time as his chest cavity became fully filled with blood. Depending on the circumstances, it might take 5 to 10 minutes for the chest cavity to fill. Neither prosecution witness could state, with medical certainty, that the victim was still alive when, perhaps five minutes after the initial chest wounds were inflicted, the defendant fired at the victim’s head.

The defense produced but a single witness, the former Chief Medical Examiner of New York City. This expert stated that, in his view, Geller might have died of the chest wounds "very rapidly” since, in addition to the bleeding, a large bullet going through a lung and the heart would have other adverse medical effects. "Those wounds can be almost immediately or rapidly fatal or they may be delayed in there, in the time it would take for death to occur. But I would say that wounds like that which are described here as having gone through the lungs and the heart would be fatal wounds and in most cases they’re rapidly fatal.”

The trial court declined to charge the jury, as requested by the prosecution, that defendant could be guilty of murder on the theory that he had aided and abetted the killing of Geller by Bush. Instead, the court submitted only two theories to the jury: that defendant had either intentionally murdered Geller or had attempted to murder Geller.

The jury found the defendant guilty of murder. The defendant then moved to set the verdict aside. He submitted an affidavit in which he contended that he "was absolutely, unequivocally and positively certain that Michael Geller was dead before [he] shot him.” Further, the defendant averred that he was in fear for his life when he shot Geller. "This fear stemmed from the fact that Joseph Bush, the admitted killer of Geller, was holding a gun on me and telling me, in no uncertain terms, that if I didn’t shoot the dead body I, too, would be killed.” This motion was denied.

On appeal, the Appellate Division reversed the judgment of conviction on the law and dismissed the indictment. The court ruled that "the People failed to prove beyond a reasonable doubt that Geller had been alive at the time he was shot by defendant; defendant’s conviction of murder thus cannot stand.” (51 AD2d 974, 975.) Further, the court held that the judgment could not be modified to reflect a conviction for attempted murder because "the uncontradicted evidence is that the defendant, at the time he fired the five shots into the body of the decedent, believed him to be dead, and * * * there is not a scintilla of evidence to contradict his assertion in that regard” (51 AD2d, at p 975).

Preliminarily, we state our agreement with the Appellate Division that the evidence did not establish, beyond a reasonable doubt, that Geller was alive at the time defendant fired into his body. To sustain a homicide conviction, it must be established, beyond a reasonable doubt, that the defendant caused the death of another person. (Penal Law, § 125.00; CPL 70.20.) The People were required to establish that the shots fired by defendant Dlugash were a sufficiently direct cause of Geller’s death. (People v Stewart, 40 NY2d 692, 697; People v Kibbe, 35 NY2d 407, 412.) While the defendant admitted firing five shots at the victim approximately two to five minutes after Bush had fired three times, all three medical expert witnesses testified that they could not, with any degree of medical certainty, state whether the victim had been alive at the time the latter shots were fired by the defendant. Thus, the People failed to prove beyond a reasonable doubt that the victim had been alive at the time he was shot by the defendant. Whatever else it may be, it is not murder to shoot a dead body. (State v Simpson, 244 NC 325, 333.) Man dies but once.

Before turning to an analysis of the attempt issue, there is a further point to be made. A person may be criminally liable for the criminal conduct of another person when, "acting with the mental culpability required for the commission thereof, he solicits, requests, commands, importunes, or intentionally aids such person to engage in such conduct.” (Penal Law, § 20.00.) We believe that the evidence in the record would support a reasonable inference that Dlugash intentionally aided Bush in killing Geller and destroying telltale evidence. However, the trial court refused to permit the jury to consider this theory and the question of accessorial liability is, therefore, out of the case. The court dismissed the murder count insofar as it reflected accessorial liability, an action which may be taken only by a trial order of dismissal. (CPL 300.40; see CPL 290.10.) We have held that the People may not appeal trial orders of dismissal "where retrial of the defendant, or indeed any supplemental fact finding, might result from appellate reversal of the order sought to be appealed.” (People v Brown, 40 NY2d 381, 393.) Thus, in this case, we are without authority to direct a new trial. The judgment must stand or fall on the present record. Since the record fails to support a conviction for intentional murder, if the evidence also fails to support a conviction for attempted murder as a matter of law, the defendant is free of all liability.

The procedural context of this matter, a nonappealable but erroneous dismissal of the issue of accessorial conduct, contributes to the unique nature of the attempt issue presented here. Where two or more persons have combined to murder, proof of the relationship between perpetrators is sufficient to hold all for the same degree of homicide, notwithstanding the absence of proof as to which specific act of which individual was the immediate cause of the victim’s death. (Cf. People v Benzinger, 36 NY2d 29, 34.) On the other hand, it is quite unlikely and improbable that two persons, unknown and unconnected to each other, would attempt to kill the same third person at the same time and place. Thus, it is rare for criminal liability for homicide to turn on which of several attempts actually succeeded. In the case of coconspirators, it is not necessary to do so and the case of truly independent actors is unlikely. However, procedural developments make this case the unlikely one and we must now decide whether, under the evidence presented, the defendant may be held for attempted murder, though someone else perhaps succeeded in killing the victim.

The concept that there could be criminal liability for an attempt, even if ultimately unsuccessful, to commit a crime is comparatively recent. The modern concept of attempt has been said to date from Rex v Scofield (Cald 397), decided in 1784. (Sayre, Criminal Attempts, 41 Harv L Rev 821, 834.) In that case, Lord Mansfield stated that "[t]he intent may make an act, innocent in itself, criminal; nor is the completion of an act, criminal in itself, necessary to constitute criminality. Is it no offence to set fire to a train of gunpowder with intent to burn a house, because by accident, or the interposition of another, the mischief is prevented?” (Cald, at p 400; see, also, Commonwealth v Kennedy, 170 Mass 18 [Holmes, J.].) The Revised Penal Law now provides that a person is guilty of an attempt to commit a crime when, with intent to commit a crime, he engages in conduct which tends to effect the commission of such crime. (Penal Law, § 110.10.) The revised statute clarified confusion in the former provision which, on its face, seemed to state that an attempt was not punishable as an attempt unless it was unsuccessful. (See Hechtman, Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law, § 110.00, pp 309-310.)

The most intriguing attempt cases are those where the attempt to commit a crime was unsuccessful due to mistakes of fact or law on the part of the would-be criminal. A general rule developed in most American jurisdictions that legal impossibility is a good defense but factual impossibility is not. (See Conspiracy, Attempt-Crime Impossible, Ann., 37 ALR3d 375, 381; see, also, What Constitutes Attempted Murder, Ann., 54 ALR3d 612, 633.) Thus, for example, it was held that defendants who shot at a stuffed deer did not attempt to take a deer out of season, even though they believed the dummy to be a live animal. The court stated that there was no criminal attempt because it was no crime to "take” a stuffed deer, and it is no crime to attempt to do that which is legal. (State v Guffey, 262 SW2d 152 [Mo]; see, also, State v Taylor, 345 Mo 325 [no liability for attempt to bribe a juror where person bribed was not, in fact, a juror].) These cases are illustrative of legal impossibility. A further example is Francis Wharton’s classic hypothetical involving Lady Eldon and her French lace. Lady Eldon, traveling in Europe, purchased a quantity of French lace at a high price, intending to smuggle it into England without payment of the duty. When discovered in a customs search, the lace turned out to be of English origin, of little value and not subject to duty. The traditional view is that Lady Eldon is not liable for an attempt to smuggle. (1 Wharton, Criminal Law [12th ed], § 225, p 304, n 9; for variations on the hypothetical see Hughes, One Further Footnote on Attempting the Impossible, 42 NYU L Rev 1005.)

On the other hand, factual impossibility was no defense. For example, a man was held liable for attempted murder when he shot into the room in which his target usually slept and, fortuitously, the target was sleeping elsewhere in the house that night. (State v Mitchell, 170 Mo 633.) Although one bullet struck the target’s customary pillow, attainment of the criminal objective was factually impossible. State v Moretti (52 NJ 182, cert den 393 US 952) presents a similar instance of factual impossibility. The defendant agreed to perform an abortion, then a criminal act, upon a female undercover police investigator who was not, in fact, pregnant. The court sustained the conviction, ruling that "when the consequences sought by a defendant are forbidden by the law as criminal, it is no defense that the defendant could not succeed in reaching his goal because of circumstance unknown to him.” (52 NJ, at p 190; see, also, People v Camodeca, 52 Cal 2d 142, 146-147.) On the same view, it was held that men who had sexual intercourse with a woman, with the belief that she was alive and did not consent to the intercourse, could be charged for attempted rape when the woman had, in fact, died from an unrelated ailment prior to the acts of intercourse. (United States v Thomas, 13 USCMA 278.)

The New York cases can be parsed out along similar lines. One of the leading cases on legal impossibility is People v Jaffe (185 NY 497) in which we held that there was no liability for the attempted receipt of stolen property when the property received by the defendant in the belief that it was stolen was, in fact, under the control of the true owner. (Accord People v Rollino, 37 Misc 2d 14; Booth v State, 398 P2d 863 [Okla]; United States v Hair, 356 F Supp 339.) Similarly, in People v Teal (196 NY 372), a conviction for attempted subornation of perjury was overturned on the theory that the testimony attempted to be suborned was irrelevant to the merits of the case. Since it was not subornation of perjury to solicit false, but irrelevant, testimony, "the person through whose procuration the testimony is given cannot be guilty of subornation of perjury and, by the same rule, an unsuccessful attempt to that which is not a crime when effectuated, cannot be held to be an attempt to commit the crime specified.” (196 NY, at p 377.) Factual impossibility, however, was no defense. Thus, a man could be held for attempted grand larceny when he picked an empty pocket. (People v Moran, 123 NY 254; see, also, People v Bauer, 32 AD2d 463, 468, affd 26 NY2d 915.)

As can be seen from even this abbreviated discussion, the distinction between "factual” and "legal” impossibility was a nice one indeed and the courts tended to place a greater value on legal form than on any substantive danger the defendant’s actions posed for society. The approach of the draftsmen of the Model Penal Code was to eliminate the defense of impossibility in virtually all situations. Under the code provision, to constitute an attempt, it is still necessary that the result intended or desired by the actor constitute a crime. However, the code suggested a fundamental change to shift the locus of analysis to the actor’s mental frame of reference and away from undue dependence upon external considerations. The basic premise of the code provision is that what was in the actor’s own mind should be the standard for determining his dangerousness to society and, hence, his liability for attempted criminal conduct. (Wechsler, Jones and Korn, Treatment of Inchoate Crimes in Model Penal Code of American Law Institute: Attempt, Solicitation and Conspiracy, 61 Col L Rev 571, 578-585; see, also, American Law Institute, Model Penal Code [Tent Draft No. 10], Comments to § 5.01—Criminal Attempt, pp 30-38.)

In the belief that neither of the two branches of the traditional impossibility arguments detracts from the offender’s moral culpability (see Hechtman, Practice Commentaries, McKinney’s Cons Laws of NY, Book 39, Penal Law, § 110.10, p 320), the Legislature substantially carried the code’s treatment of impossibility into the 1967 revision of the Penal Law. (See, also, Note, Proposed Penal Law of New York, 64 Col L Rev 1469, 1520-1521.) Thus, a person is guilty of an attempt when, with intent to commit a crime, he engages in conduct which tends to effect the commission of such crime. (Penal Law, § 110.00.) It is no defense that, under the attendant circumstances, the crime was factually or legally impossible of commission, "if such crime could have been committed had the attendant circumstances been as such person believed them to be.” (Penal Law, § 110.10.) Thus, if defendant believed the victim to be alive at the time of the shooting, it is no defense to the charge of attempted murder that the victim may have been dead.

Turning to the facts of the case before us, we believe that there is sufficient evidence in the record from which the jury could conclude that the defendant believed Geller to be alive at the time defendant fired shots into Geller’s head. Defendant admitted firing five shots at a most vital part of the victim’s anatomy from virtually point blank range. Although defendant contended that the victim had already been grievously wounded by another, from the defendant’s admitted actions, the jury could conclude that the defendant’s purpose and intention was to administer the coup de grace. The jury never learned of defendant’s subsequent allegation that Bush had a gun on him and directed defendant to fire at Geller on the pain of his own life. Defendant did not testify and this statement of duress was made only in a postverdict affidavit, which obviously was never placed before the jury. In his admissions that were related to the jury, defendant never made such a claim. Nor did he offer any explanation for his conduct, except for an offhand aside made casually to Detective Carrasquillo. Any remaining doubt as to the question of duress is dispelled by defendant’s earlier statement that he and Joe Bush had peacefully spent a few days together on vacation in the country. Moreover, defendant admitted to freely assisting Bush in disposing of the weapons after the murder and, once the weapons were out of the picture, defendant made no effort at all to flee from Bush. Indeed, not only did defendant not come forward with his story immediately, but when the police arrived at his house, he related a false version designed to conceal his and Bush’s complicity in the murder. All of these facts indicate a consciousness of guilt which defendant would not have had if he had truly believed that Geller was dead when he shot him.

Defendant argues that the jury was bound to accept, at face value, the indications in his admissions that he believed Geller dead. Certainly, it is true that the defendant was entitled to have the entirety of the admissions, both the inculpatory and the exculpatory portions, placed in evidence before the trier of facts. (E.g., People v La Belle, 18 NY2d 405, 410-411; People v Gallo, 12 NY2d 12, 15; Richardson, Evidence [10th ed], § 227, p 202.) However, the jury was not required to automatically credit the exculpatory portions of the admissions. The general rule is, of course, that the credibility of witnesses is a question of fact and the jury may choose to believe some, but not all, of a witness’ testimony. (E.g., People v Reed, 40 NY2d 204, 208.) The general rule applies with equal force to proof of admissions. Thus, it has been stated that "where that part of the declaration which discharges the party making it is itself highly improbable or is discredited by other evidence the [jury] may believe one part of the admission and reject the other.” (People ex rel. Perkins v Moss, 187 NY 410, 428.) In People v Miller (247 App Div 489, 493), relied upon by defendant, Justice Lewis (later Chief Judge) concluded that the damaging aspects of an admission should not be accepted and the exculpatory portion rejected "unless the latter is disputed by other evidence in the case, or is so improbable as to be unworthy of belief’ (emphasis added). In this case, there is ample other evidence to contradict the defendant’s assertion that he believed Geller dead. There were five bullet wounds inflicted with stunning accuracy in a vital part of the victim’s anatomy. The medical testimony indicated that Geller may have been alive at the time defendant fired at him. The defendant voluntarily left the jurisdiction immediately after the crime with his coperpetrator. Defendant did not report the crime to the police when left on his own by Bush. Instead, he attempted to conceal his and Bush’s involvement with the homicide. In addition, the other portions of defendant’s admissions make his contended belief that Geller was dead extremely improbable. Defendant, without a word of instruction from Bush, voluntarily got up from his seat after the passage of just a few minutes and fired five times point blank into the victim’s face, snuffing out any remaining chance of life that Geller possessed. Certainly, this alone indicates a callous indifference to the taking of a human life. His admissions are barren of any claim of duress and reflect, instead, an unstinting co-operation in efforts to dispose of vital incriminating evidence. Indeed, defendant maintained a false version of the occurrence until such time as the police informed him that they had evidence that he lately possessed a gun of the same caliber as one of the weapons involved in the shooting. From all of this, the jury was certainly warranted in concluding that the defendant acted in the belief that Geller was yet alive when shot by defendant.

The jury convicted the defendant of murder. Necessarily, they found that defendant intended to kill a live human being. Subsumed within this finding is the conclusion that defendant acted in the belief that Geller was alive. Thus, there is no need for additional fact findings by a jury. Although it was not established beyond a reasonable doubt that Geller was, in fact, alive, such is no defense to attempted murder since a murder would have been committed "had the attendant circumstances been as [defendant] believed them to be.” (Penal Law, § 110.10.) The jury necessarily found that defendant believed Geller to be alive when defendant shot at him.

The Appellate Division erred in not modifying the judgment to reflect a conviction for the lesser included offense of attempted murder. An attempt to commit a murder is a lesser included offense of murder (see CPL 1.20, subd 37) and the Appellate Division has the authority, where the trial evidence is not legally sufficient to establish the offense of which the defendant was convicted, to modify the judgment to one of conviction for a lesser included offense which is legally established by the evidence. (CPL 470.15, subd 2, par [a]; 470.20, subd 4.) Thus, the Appellate Division, by dismissing the indictment, failed to take the appropriate corrective action. Further, questions of law were erroneously determined in favor of the appellant at the Appellate Division. While we affirm the order of the Appellate Division to the extent that the order reflects that the judgment of conviction for murder cannot stand, a modification of the order and a remittal for further proceedings is necessary. (CPL 470.40, subds 2, 3.)

Accordingly, the order of the Appellate Division should be modified and the case remitted to the Appellate Division for its review of the facts pursuant to CPL 470.15 (see CPL 470.25, subd 2, par [d]) and for further proceedings with respect to the sentence (see CPL 470.20, subd 4) in the event that the facts are found favorably to the People. As so modified, the order of the Appellate Division should be affirmed.

Chief Judge Breitel and Judges Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur.

Order modified and the case remitted to the Appellate Division, Second Department, for further proceedings in accordance with the opinion herein and, as so modified, affirmed.

      . It should be noted that Joe Bush pleaded guilty to a charge of manslaughter in the first degree. At the time he entered his plea, Bush detailed his version of the homicide. According to Bush, defendant Dlugash was a dealer in narcotic drugs and Dlugash claimed that Geller owed him a large sum of money from drug purchases. Bush was in the kitchen alone when Geller entered and threatened him with a shotgun. Bush pulled out his .38 caliber pistol and fired five times at Geller. Geller slumped to the floor. Dlugash then entered, withdrew his .25 caliber pistol and fired five shots into the deceased’s face. Bush, however, never testified at Dlugash’s trial.

      . Notwithstanding the Appellate Division’s implication to the contrary, the record indicates that defendant told the Assistant District Attorney that Bush, after shooting Geller, kept his gun aimed at Geller, and not at Dlugash. As defendant stated, "this was after Joe had his .38 on him, I started shooting on him.”


author: Fuchsberg, J.

text:
    Little Joseph Realty, Inc., Respondent, v Town of Babylon et al., Appellants. (And Another Action.)
    Argued March 24, 1977;
    decided May 12, 1977

      Patrick J. Barton and Joseph F. Klein, Lindenhurst, for Town of Babylon, appellant.

      Max Margules, Mineola, for J. D. Posillico, Inc., and another, appellants.

      Bennett E. Aron, West Hempstead, for respondent.
   Fuchsberg, J.

This action was brought against the Town of Babylon and the defendants Posillico (J. D. Posillico, Inc., and its wholly owned subsidiary, Posillico Bros. Asphalt Co., Inc.) to enjoin the construction and operation of an asphalt plant in violation of the town’s zoning law. The plaintiff, Little Joseph Realty, Inc., is an adjoining property owner.

These salient facts are undisputed: Little Joseph owns approximately eight acres of land improved by buildings in which it leases space to industrial tenants. Sully Concrete Materials Corporation owned an adjoining 19 lá acre parcel on which it conducted a sand and gravel mining and screening business. Both parcels are located in the town’s "G” Industrial District (light industry). Sully petitioned to downzone its parcel to an "H” Industrial District (heavy industry) so as to permit it to construct and maintain an asphalt plant, a prohibited use in "G” district; after a public hearing, the application was denied. The town then took steps to acquire Sully’s land for use as a sanitary landfill site for the deposit of selected refuse; Sully thereupon sold the property to the town. Immediately thereafter, Posillico presented a proposal to the town board to lease 14 acres of the newly acquired property; on 7 acres it planned to build an asphalt plant and on the other 7 to excavate sand for its use in its manufacture of asphalt. This led to the board’s adoption of a resolution authorizing the town supervisor to enter into a 15-year lease and an excavation contract with Posillico; no petition for a permissive referendum having been received, he did so.

After a trial on the merits, Special Term dismissed the complaint, holding that the asphalt plant was merely incidental to a governmental use of the land for waste disposal and that therefore the zoning ordinance was not a bar to its "temporary maintenance”. It held too that, in any event, plaintiff had suffered no special damage or irreparable harm because its property "has not depreciated in value”.

The Appellate Division, weighing the facts differently, as it is empowered to do (CPLR 5501, subd [c]), after first finding that the invasion of Little Joseph’s property by "great quantities of dust and soot from Posillico’s plant”, which by then was in full operation, constituted sufficient damage to entitle it to "the threshold right to sue for [an] injunction” (51 AD2d, at p 162), went on to decide that the asphalt plant in this case did not enjoy exemption from the zoning ordinance. Upon the basis of proof that the plant had been expensive to construct, that the installation of a specified filter would substantially reduce the emission of dust and that a disparity existed between plaintiff’s damages and the larger economic consequences of an injunction, it then directed that an injunction, to be issued pursuant to its order of modification of the judgment of dismissal, be conditioned upon a failure to install the filter. In doing so, it expressly adapted to the options available in private nuisance under our decision in Boomer v Atlantic Cement Co. (26 NY2d 219). It further directed a remand to Special Term for a hearing for the determination of damages, ordering, however, that, if the filter was installed, "the damages sustained by the plaintiff shall take into account the diminution of the value of the plaintiff’s premises for the entire 15-year period of the lease, the loss of rentals and the extent to which damages will be mitigated by installation of the filter and such other steps as may have been taken to further reduce the emission of dust and soot” (51 AD2d, at p 165). (We are advised that the filter has been duly installed.)

Posillico and the town now appeal by leave of the Appellate Division, which certifies to us the broad question as to whether its order was properly made. Little Joseph did not seek leave to cross appeal. In answering the certified question we touch on three areas: (1) plaintiff’s standing to sue, (2) whether the Appellate Division had a right to find that the operation of the asphalt plant is under the circumstances in this case an activity of a proprietary rather than governmental nature and (3) the appropriateness of the relief granted.

Standing need not detain us long. The town’s primary challenge to the plaintiff’s right to maintain this action relies on subdivision 2 of section 268 of the Town Law. That statute, which vests power to enjoin zoning violations in town authorities, provides that, if they fail or refuse to do so after written request by a resident taxpayer of the town, "any three taxpayers * * * who are jointly or severally aggrieved by such violation, may institute such appropriate action or proceeding in like manner as such local officer, board or body of the town is authorized to do.” Obviously intended to create an avenue for direct action by which resident taxpayers, acting in concert, may overcome official lassitude or nonfeasance in the enforcement of zoning laws, this provision is hardly to be construed as a diminution of the right of one who suffers damage beyond general inconvenience to the public at large to take legal action on his own (Armstrong v Gibson & Cushman, 202 Misc 399, app dsmd 280 App Div 939; Slevin v Long Is. Jewish Med. Center, 66 Misc 2d 312, 314-315 [Harnett, J.]).

That right is well recognized. "The provision that an official of the village shall enforce the zoning ordinance does not prevent a private property owner who suffers special damages from maintaining an action” (Marcus v Village of Mamaroneck, 283 NY 325, 333), and thereby seek to enjoin the continuance of the violation and obtain damages (Rice v Van Vranken, 132 Misc 82, affd 225 App Div 179, affd 255 NY 541; cf. Cord Meyer Dev. Co. v Bell Bay Drugs, 20 NY2d 211, 216-217). In doing so, the private property owner is pursuing more than a civic interest in law enforcement; he is vindicating a discrete, separate identifiable interest of his own (2 Anderson, New York Zoning Law and Practice, § 23.07, p 228; Note, The Injunction—A Method of Zoning Enforcement, 15 Syracuse L Rev 546, 549).

Turning then to the relationship between the governmental vis-á-vis proprietary function dichotomy and the town’s obligation to comply with zoning regulations, the general rule is equally clear: A local government may carry out its governmental operations without regard to zoning restrictions, but it is subject to the same restrictions that are imposed on a nongovernmental landowner when it acts in a proprietary capacity (Nehrbas v Incorporated Vil. of Lloyd Harbor, 2 NY2d 190, 193 [Fuld, J.]).

Granted that the legal classification of a particular municipal activity as governmental or proprietary is, in this transitional age, subject to change with time and circumstance, the operation of a landfill "must today be stamped a governmental function” (Nehrbas, p 195) and even the manufacture of asphalt, as for public road building, may very well be. But, in the case now before us, the plant did not manufacture asphalt for use by, or for sale to, the town or its constituent agencies. It was operated solely by and for the commercial benefit of Posillico as a private entrepreneur. The lease, therefore, could not serve to clothe Posillico with immunity from the zoning laws (see, e.g., Carroll v Board of Adjustment of Jersey City, 15 NJ Super 363; Zoning, Governmental Projects, Ann., 61 ALR2d 970, 972; cf. Matter of County of Suffolk, 48 Misc 2d 39, 42 [Munder, J.]; 2 Rathkopf, Law of Zoning & Planning, p 53-16 [1975 Supp, p 267]).

Moreover, there is much in the record to suggest that the town’s lease to Posillico was not merely a transient or incidental adjunct to its own municipal sanitary landfill program. To be sure, 15 years is not an eon, but it is not an inconsequential period in the duration of a zoning imposition either. And the percentage of the entire parcel devoted to the asphalt plant here was a substantial part of the whole.

Since this case is here only on a certified question, we cannot now review the Appellate Division’s finding of fact on the basis of which it apparently concluded that the town, in the very leasing itself, was engaged in the performance of an act proprietary in character when it thus entered into the business transaction which resulted in the private occupancy of this property for a private purpose. But we do observe that the record, among other things, contains the following relevant additional information on that issue:

Posillico, it developed at trial, had for years been eager to locate an asphalt plant on this parcel, with its built-in supply of sand as a raw material. In fact, it had entered into an agreement with Sully that, if the latter obtained the zoning amendment it sought, it would sell the property to Posillico. When shortly thereafter the town acquired the property, it was only a matter of days before the town board was engaged in exploratory conversations with Posillico; this was at a time not only long before the issuance of the invitation for the public bidding which preceded the making of the ultimate lease and excavation agreement, but long before the specifications for such bidding were even formulated. When drawn, the specifications did not refer to an asphalt plant; that appeared as an additional and, as it eventuated, distinguishing feature of the Posillico bid only. For Posillico’s special benefit, the town also later included an easement for a driveway over other town property, an advantage absent from the specifications on which bidders would be expected to act. The town’s supervisor, a former member of its board of zoning appeals, in his testimony characterized the inclusion of a provision for an asphalt plant to be built by Posillico as an "oversight”, while a town councilwoman testified that the town’s primary motive for entering into the arrangement was the large revenue which would inure to its benefit over the term of the lease, i.e., $538,000 in rental plus a stipulated amount for each cubic foot of sand mined. All these, Little Joseph argued, are telltale traces of a dominant use for Posillico’s private purposes.

Focusing our attention now on the relief which the Appellate Division granted, the striking thing is that, by permitting the defendants to avoid enjoinment of the operation of the asphalt plant simply by the abatement of those aspects of the use which were most offensive to the plaintiff and its payment of the award of permanent damages to be fixed on remand, the defendants’ continued violation of the zoning ordinance has received judicial countenance. The conditional injunction, however well intentioned, in actual operation thus becomes merely a way of reducing damage. And defendants are thereby in effect buying the right to violate the law, the plaintiff being relegated to monetary damages somewhat akin to those to which it would be entitled under principles of eminent domain. Such a result runs counter to firmly established law and sound public policy.

As succinctly stated by Mr. Justice Eager in Lesron Jr., Inc. v Feinberg (13 AD2d 90, 95): "It is settled beyond doubt that an action for injunctive relief is the appropriate remedy of an aggrieved property owner who seeks to bar the erection of a structure on adjoining or nearby premises in violation of express zoning regulations [citations omitted].” That principle was reaffirmed in Cord Meyer Dev. Co. v Bell Bay Drugs (20 NY2d 211, 216-217, supra), where Judge Van Voorhis, writing for this court, approvingly quoted the Appellate Division’s observation that "one who suffers special damages as a result of a violation of zoning ordinance may obtain an injunction to prevent its continuance and damages [citations omitted]” (25 AD2d 744).

Boomer v Atlantic Cement Co. (26 NY2d 219, supra) did not change that rule. First and foremost, it should be noted that no zoning violation, or for that matter, the violation of any other statute, was involved in that case. The action there was one to enjoin the continued commission of a nuisance in the operation of a cement plant which apparently offended no statutory edict, but tortiously imposed upon the plaintiff’s property.

The law of nuisance and that of zoning both relate to the use of property, but they each protect a different interest. So a use which fully complies with a zoning ordinance may still be enjoined as a nuisance (Sweet v Campbell, 282 NY 146; but see Bove v Donner-Hanna Coke Corp., 236 App Div 37), albeit "the plaintiff assumes a heavy burden of proof’ (2 Anderson, New York Zoning Law and Practice, § 23.03).

Nuisance is based upon the maxim that "a man shall not use his property so as to harm another” (Joyce, Law of Nuisance, p 45; see, also, Copart Inds., v Consolidated Edison Co., 41 NY2d 564). It traditionally required that, after a balancing of risk-utility considerations, the gravity of the harm to a plaintiff be found to outweigh the social usefulness of a defendant’s activity. (Prosser, Law of Torts [4th ed], p 581; see, also, Restatement, Torts 2d [Tent Draft No. 18], § 826, pp 3-4; Wade, Environemental Protection, The Common Law of Nuisance, 8 Forum 165, 171). On that basis, it was logical in Boomer, where the adverse economic effects of a permanent injunction far outweighed the loss plaintiffs there would suffer, to limit the relief to monetary damages as compensation for the "servitude” which had been imposed upon them (Boomer v Atlantic Cement Co., supra, p 228).

Zoning is far more comprehensive. Its design is, on a planned basis, to serve as "a vital tool for maintaining a civilized form of existence” for the benefit and welfare of an entire community (Udell v Haas, 21 NY2d 463, 469; see, also, Comment, Zoning and the Law of Nuisance, 29 Ford L Rev 749, 750-751; Comment, Zoning Ordinances and Common-Law Nuisance, 16 Syracuse L Rev 860). Its provisions must be enforced with these goals in mind. It follows that, when a continuing use flies in the face of a valid zoning restriction, it must, subject to the existence of any appropriate equitable defenses, be enjoined unconditionally (cf. Matter of B & G Constr. Corp. v Board of Appeals, 309 NY 730; Marcus v Village of Mamaroneck, 283 NY 325, supra).

Consequently, however appropriate the remedy fashioned by the Appellate Division might be in resolving a private nuisance case, it is inappropriate here. In private nuisance, there is frequently a need to resolve a dispute between a plaintiff and a defendant over conflicting though valid uses of land. In such a case, the remedial options delineated in Boomer provide means by which courts can adjust such competing uses with a view towards maximizing the social value of each.

On the other hand, when it has been established that a defendant violates a valid zoning ordinance, there is no need for judicial accommodation of the defendant’s use to that of the plaintiff. For a court to do so would be for it to usurp the legislative function. Specifically, in the case now before us, if the defendants can continue the unlawful use of the property after complying with the relief granted on remand, the trial court’s judgment would have worked to rezone the land with conditions notwithstanding the fact that the power to do so is reserved to the town board alone (National Land & Inv. Corp. v Easttown Twp. Bd. of Adjustment, 419 Pa 504, 521-522).

This is not to say that risk-utility considerations have not entered into the adoption of a zoning law’s restriction on use. It is rather that presumptively they have already been weighed and disposed of by the Legislature which enacted them (see Maldini v Ambro, 36 NY2d 481, 484).

From all this, it would appear that we should modify the order of the Appellate Division and grant the permanent unconditional injunction originally sought by the plaintiff. However, since plaintiff has not appealed to this court, we are without power to grant such affirmative relief (People v Consolidated Edison Co., 34 NY2d 646, 648; Rye v Public Serv. Mut. Ins. Co., 34 NY2d 470, 474). Nevertheless, in view of the indorsement at the foot of the interlocutory judgment entered upon the order of the Appellate Division in this case of leave for it to apply to Special Term in the future for such further relief as may be appropriate, plaintiff may, if so advised, reassert its application for a permanent injunction at the time of the damages hearing ordered by the remand.

Accordingly, despite our indicated disagreement with the appropriateness of the relief granted by the Appellate Division, we affirm the order appealed from and, on that basis, the answer to the certified question must be in the affirmative.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones, Wachtler and Cooke concur.

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

      . (Cohen and Karger, Powers of the New York Court of Appeals, § 86, pp 368-369; cf. Cord Meyer Dev. Co. v Bell Bay Drugs, 20 NY2d 211, supra, relied on by the town, where the appellant stipulated for judgment absolute in the event of an affirmance.)

      . The Appellate Division did not make it entirely clear as to what permanent damage the trial court could have found if the filter had not been installed and the absolute injunction had issued. Presumably, if the defendants were enjoined unconditionally, the plaintiff would suffer no permanent injury requiring compensation from that point on. Perhaps the Appellate Division felt that the trial court could find some aspects of defendants’ use unabatable and would permit defendant to continue that aspect only after paying the plaintiff permanent damages. In view of our holding in this case we need not consider whether such a novel application of Boomer would be appropriate in the kind of case in which its options are available.