author: Jones, J.

text:
    Deering Milliken, Inc., Appellant, v Clark Estates, Inc., et al., Respondents.
    Argued January 4, 1978;
    decided February 14, 1978

      POINTS OF COUNSEL

      Simon H. Rifkind, Paul J. Newlon and Jay L. Himes for appellant.
    I. Once the purchase agreements were binding, Milliken was entitled to the dividends declared on the stock it had agreed to buy. (Currie v White, 45 NY 822; Johnson v Underhill, 52 NY 203; Broderick v Aaron, 264 NY 368; Broderick v Alexander [Kahn], 268 NY 306; Broderick v Adamson [Greif], 270 NY 260.) II. The court below erred in holding that the two purchase agreements effected a sale in futuro as a matter of law. (Phillips v Kantor & Co., 31 NY2d 307; 67 Wall St. Co. v Franklin Nat. Bank, 37 NY2d 245; Bouton v Litton Inds., 423 F2d 643; Flushing Hosp. & Med. Center v Woytisek, 49 AD2d 382; Janos v Peck, 21 AD2d 529, 15 NY2d 509; United States Rubber Co. v Silverstein, 229 NY 168; White v Hoyt, 73 NY 505.) III. Milliken’s failure to pay interest has no bearing on its right to dividends.

      Peter H. Kaminer, Stephen A. Weiner and George B. Reese for respondents.
    I. Under executory agreements of sale defendants-respondents are entitled to dividends declared prior to transfer of and payment for the shares. (Merchants’ Bank v Thomson, 55 NY 7; Worrall v Munn, 53 NY 185; Hirschfeld v Borchard Affiliations, 20 Misc 2d 680; Matter of Galewitz, 3 AD2d 280; Hopper v Sage, 112 NY 530; Ford v Snook, 205 App Div 194, 240 NY 624; Currie v White, 45 NY 822, Johnson v Underhill, 52 NY 203; Lurie v Kaplan, 31 AD2d 93.) II. The intent of the parties at bar not to pass any elements of ownership to the purchaser prior to closing is beyond question. (First Amer. Nat. Bank of Nashville v United States, 209 F Supp 902; United States v Amalgamated Sugar Co., 72 F2d 755; Kuehner v Commissioner of Internal Revenue, 214 F2d 437; Shillinglaw v Commissioner of Internal Revenue, 99 F2d 87, 306 US 635.) III. The authorities cited by plaintiff completely fail to support its position. (Broderick v Alexander [Kahn], 268 NY 306; Broderick v Adamson [Greif], 270 NY 260; Broderick v Aaron, 264 NY 368.)
   OPINION OF THE COURT

Jones, J.

When a contract is made for the future transfer of beneficial interest in stock and no provision is made therein by the buyer and seller as to which shall be entitled to receive regular dividends declared before the purchase price is paid and delivery of the stock certificates made, such dividends remain the property of the seller.

On March 31 and April 5, 1967 Deering Milliken, Inc., executed agreements for the purchase from defendants, executors under the will of Susan Vanderpoel Clark and the Clark Estates, Inc., of some 480,000 shares of stock of Albany Felt Company. Under the first agreement, with the executors, a minimal payment was to be made at the time the contract was signed, a partial payment on May 1, 1967 and the substantial balance on August 1, 1967. Under the April agreement, with Clark Estates, payment was to be made on such date between May 1 and August 1, 1967 as might be specified by the seller. Under each contract delivery of the stock certificates was to take place when the total purchase price was paid. The contracts also included as a condition to the buyer’s obligation of payment a provision that the buyer should have satisfied itself from an evaluation of Albany Felt’s business and financial condition that the basis on which the transaction was to be consummated was warranted. Absent from both contracts was any provision as to which party would be entitled to dividends declared by Albany Felt between the dates of the agreements and the dates of transfer of the shares.

On May 24, 1967 the corporation declared a regular quarterly dividend payable on July 1 to stockholders of record on June 16. Payment of the purchase price and delivery of the stock certificates held by Clark Estates took place on June 19, 1967; final payment and delivery of the stock certificates held by the executors was made on August 1. The sellers’ rejection of the buyer’s demand under both contracts for delivery to it of the dividends distributed July 1 gave rise to the present litigation.

In the circumstances of this case, we agree with the Appellate Division that the dividend declared on May 24 belonged to the sellers.

As in most contract questions, the intention of the parties, if manifested, would have controlled. In the March and April agreements between the parties, however, there were no express provisions with respect to entitlement to interim dividends, and no extrinsic evidentiary proof of the intention of the parties as to that subject has been tendered. That being so, the resolution of the resulting ambiguity by construction of the instruments is for determination by the court on the present cross motions for summary judgment (Hartford Acc. & Ind. Co. v Wesolowski, 33 NY2d 169, 172; Mallad Constr. Corp. v County Fed. Sav. & Loan Assn., 32 NY2d 285, 291).

Critical to the determination whether buyer or sellers were entitled to the May dividend is the question whether present sales—current transfers of substantial beneficial interest—or only agreements to make future sales were manifested by the execution of the contracts of March 31 and April 5, 1967. A purchaser of stock acquires "by a contract of present sale a right to the benefits which may accrue on the stock bought, and that right is, for convenience, called the 'beneficial ownership’ of the stock” (Broderick v Alexander [Kahn], 268 NY 306, 309). A different result attends the execution of a contract to make a sale in the future. "In the absence of an agreement to the contrary, the buyer under an executory contract to sell stock is not entitled to dividends until the legal title to the stock has passed to him, which is not until delivery is made to him or is due to him and is offered to be made, unless there is something in the contract specifying or implying a contrary intention. * * * Where there is a sale of stock in praesenti, but the date of delivery and payment is postponed, the vendee is entitled to all dividends declared between the date of the agreement and the date of closing to the purchaser.” (11 Fletcher Cyclopedia Corporations [Perm ed, 1971], § 5378.)

Looking to the terminology used by these parties in their agreements, in addition to provisions for future dates for payments of the purchase price and deliveries of the stock certificates, we find: "Seller will sell to Buyer”; "Buyer * * * will purchase such shares from Seller”; the seller "agrees to cause to be sold to” the purchaser; the purchaser "agrees to buy such shares”; reference to "shares to be sold”—all terminology looking to future occurrences and inconsistent with a present transfer of beneficial ownership of the stock. Of similar import are the express conditions which precluded the subjection of the buyer to any obligation to pay until it had satisfied itself as to the existence of sufficient warrant in the financial condition of Albany Felt for the transactions described in the contracts. In view of that condition, it might have come about that the buyer would never be bound to pay. We conclude that, while at the time of execution of the March and April agreements Deering Milliken acquired certain enforceable rights with respect to a sale of the Albany Felt stock, there was then no present sale and no transfer of such beneficial interest as to carry with it the right to the regular quarterly dividend declared May 24, 1967. Defendants, as the actual and beneficial owners of the shares when the dividend was declared, were entitled to the distribution (Ford v Snook, 205 App Div 194, affd 240 NY 624; Hopper v Sage, 112 NY 530).

The extrinsic evidence bearing on the intention of the parties with respect to the timing of the completion of the sale by the executors (to be distinguished from extrinsic evidence with respect to the right to dividends—of which there is none) is consistent with the construction we have reached. Included among the papers offered by the buyer on its motion for summary judgment is an affidavit and an examination before trial of its president by whom it was represented in the stock transaction. This evidence discloses that the executors desired to defer the sale of stock for a tax advantage to them. The desire of the executors in this regard was communicated to the buyer’s president and with that knowledge the parties executed the agreements, drafted on behalf of the sellers. Also included in the buyer’s moving papers is a letter from the sellers’ counsel, who had been involved in the discussions concerning the text of the instruments, referring to the executors’ rejection of a proposal by the buyer’s attorney that "the agreement be cast in terms of a present sale and purchase”.

The cases of Currie v White (45 NY 822) and Johnson v Underhill (52 NY 203), relied on by Deering Milliken as support for its claim to the disputed dividend, are inapplicable. In each of those cases it was found that a present sale and transfer of beneficial interest had taken place; in the Johnson case the issue was only what consequence attended the failure to have effected a change in record ownership on the books of the corporation. So too, the trilogy of Broderick cases arising in the context of the collapse of the Bank of United States in 1930 (Broderick v Aaron, 264 NY 368; Broderick v Alexander [Kahn], 268 NY 306, supra; Broderick v Adamson [Greif], 270 NY 260), is not supportive of Deering Milliken’s position. Those cases also dealt with the rights and liabilities attendant on present purchases and sales of stock, made in those instances through brokers on the open market, and with the degree of specification and identification necessary to effect a transfer of beneficial interest for the purpose of fixing the statutory liability of stockholders of a bank in liquidation.

Cases cited involving extraordinary or irregular dividends declared at or near the time of the striking of the agreement, which served to siphon off corporate assets and thereby unexpectedly to impair the bargain, are not in point; here it is undisputed that the dividend declared May 24, 1967 was a predictable regular, quarterly dividend of Albany Felt Company.

In reaching our decision we have not considered Rules of the New York Stock Exchange which have not been claimed or shown to be applicable to this transaction concluded directly between the prospective buyer and sellers.

Finally, because the Appellate Division took note of the fact that no provision for interest payments on the purchase price of the stock had been included in either agreement, we observe that we attach no significance to this omission. Although the inclusion of an obligation for payment of interest by the buyer from the date of the contract’s execution would have supported a claim of a present sale (Currie v White, 45 NY 822, supra), its absence does not necessarily lead to a contrary result. An acceptable—perhaps, to a tax-conscious seller, even desirable—substitute might be a greater purchase price.

Inasmuch as the agreements executed March 31 and April 5, 1967 were contracts for future sales of Albany Felt stock, rather than for a present change of beneficial ownership, it was proper to grant defendants’ cross motion for summary judgment dismissing plaintiff’s claim for dividends declared after the date of the contracts and before the transfer of beneficial interest in the stock.

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

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

Order affirmed.

       It appears to be undisputed that the decedent had died on January 25, 1967. Thus, any sale within six months thereafter would have exposed the decedent’s estate to taxation of capital gains on a short-term basis.


source: Caselaw Access Project

license: Public Domain

text:
    Bernard Fischer, Respondent-Appellant, v Grace S. Maloney et al., Appellants-Respondents, et al., Defendant.
    Submitted January 9, 1978;
    decided February 14, 1978

      POINTS OF COUNSEL

      Julius Gantman and James B. Reich for appellants-respondents.
    I. The court below properly dismissed plaintiffs first cause of action. (West View Hills v Lizau Realty Corp., 6 NY2d 344; Rothman & Schneider v Beckerman, 2 NY2d 493; Matter of Paloma Frocks, 3 NY2d 572; Twyeffort v Unexcelled Mfg. Co., 263 NY 6; Hardin v Morgan Lithograph Co., 247 NY 332; Cicero Ind. Dev. Corp. v Roberts, 63 Misc 2d 565; Di Sabato v Soffes, 9 AD2d 297; Andre v Pomeroy, 35 NY2d 361; Hanrog Distr. Corp. v Hanioti, 10 Misc 2d 659; Rubin v Irving Trust Co., 305 NY 288.) II. As no other viable cause of action was alleged in the complaint, that portion of the Supreme Court’s order that denied summary judgment should have been reversed; the second cause of action should also be dismissed and judgment entered for defendants. (Howard v Lecher, 42 NY2d 109; Bohm v Holzberg, 47 AD2d 764; Halio v Lurie, 15 AD2d 62; Ruza v Ruza, 1 AD2d 669; Tuvim v 10 E. 30 Corp., 38 AD2d 895; Sachs v Weinstein, 208 App Div 360; Paul v Fargo, 84 App Div 9.)

      Edward L. Schiff and Mark Jacobs for respondent-appellant.
    I. The prior defamation action was prosecuted by defendants against plaintiff vexatiously and maliciously, in the name of Southridge Cooperative, Section 2, Inc., but without the latter’s consent. Plaintiff may recover damages pursuant to sections 70 and 71 of the Civil Rights Law. (Rapoport v Schneider, 29 NY2d 396; Cirrincione v Polizzi, 14 AD2d 281.)
    II. The court below erred in dismissing plaintiffs first cause of action for damages pursuant to sections 70 and 71 of the Civil Rights Law and holding that the defamation lawsuit was commenced by the president of the corporation. (Heaman v Rowell Co., 261 NY 229; West View Hills v Lizau Realty Corp., 6 NY2d 344; Goldenberg v Bartell Broadcasting Corp., 47 Misc 2d 105.) III. The course of conduct of the defendants was conspiratorial, secret, deliberate, extreme and outrageous in the service of inflicting harm, injury and mental distress upon plaintiff. (Halio v Lurie, 15 AD2d 62; Battalla v State of New York, 10 NY2d 237; Long v Beneficial Fin. Co., 39 AD2d 11.) IV. Summary judgment does not lie in the present case where real factual issues are presented. (Rutgers Chevrolet Co. v Goody, 9 Misc 2d 837; Esteve v Abad, 271 App Div 725; Falk v Goodman, 7 NY2d 87; Stone v Goodson, 8 NY2d 8; Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395; Braun v Carey, 280 App Div 1019; Barrett v Jacobs, 255 NY 520.)
   OPINION OF THE COURT

Jones, J.

Plaintiff does not state a cause of action either under sections 70 and 71 of the Civil Rights Law or in tort for intentional infliction of severe emotional distress. Accordingly, summary judgment should be granted dismissing the complaint.

Plaintiff is a tenant and shareholder in Southridge Cooperative, Section No. 2, Inc., a residential co-operative corporation. When the board of directors of the co-operative refused to meet with him. and other tenant-stockholders of like mind, they formed a committee to be known as "Tenants Council” to obtain financial, managerial and operational information with respect to the management and operations of the co-operative. Confronted with resistance from the directors and their refusal to disclose the desired information, the Tenants Council circulated a petition among all the tenant-stockholders calling for a special meeting of the stockholders for the purpose of voting to remove the entire board of directors from office. Plaintiff was active in soliciting signatures on the petition.

Friction ensued and an action in defamation was brought in the name of the co-operative against plaintiff charging that in the course of circulating the petition he had falsely accused the vice-president of the co-operative of having had her apartment painted at a cost of $4,000 to the co-operative. When the defamation action was dismissed for failure to state a cause of action on behalf of the co-operative corporation, plaintiff instituted the present action against individual members of the board of directors. His complaint sets forth two causes of action—the first under sections 70 and 71 of the Civil Rights Law alleges that the defamation action was commenced by defendants vexatiously and maliciously in the name of the cooperative but without its consent, the second is in tort for intentional infliction of severe emotional distress.

Defendants’ motion for summary judgment dismissing the complaint for failure to state a cause of action was denied at Special Term. The Appellate Division modified by granting the motion to the extent of dismissing the first cause of action under sections 70 and 71 but affirmed the refusal to dismiss the second cause of action on the ground that it presented questions of fact which could only be resolved after a trial. We conclude that both causes of action should be dismissed.

With reference to the first cause of action, even if it were to be concluded that there was a failure to comply literally with the provisions of the by-laws of the corporation in the giving of notice of the meeting of the board of directors at which it was decided to commence the defamation action, it is undisputed that the institution of the action was authorized by the president of the corporation. In this circumstance we agree with both courts below that the action cannot then be said to have been commenced or continued without the consent of the co-operative corporation. (West View Hills v Lizau Realty Corp., 6 NY2d 344; see 12 NY Jur, Corporations, § 672; 2 Fletcher, Cyclopedia Corporations, § 618.) Accordingly no cause of action is stated under sections 70 and 71 of the Civil Rights Law.

Similarly no cause of action is stated for intentional infliction of severe emotional distress, the allegations of the complaint and the assertions in their support being viewed in the perspective most favorable to plaintiff. He relies principally on Halio v Lurie (15 AD2d 62). We conclude that the present case does not come within the doctrine referred to in Halio. An action may lie for intentional infliction of severe emotional distress "for conduct exceeding all bounds usually tolerated by decent society” (Prosser, Torts [4th ed], § 12, p 56). The rule is stated in the Restatement, Torts 2d, as follows: "One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is subject to liability for such emotional distress” (§ 46, subd [1]; see for one aspect Comment d: "Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community”). We do not undertake here to delineate the boundaries of this emerging ground of tort liability. It suffices for present purposes to note that the conduct charged to defendants in the present case does not give rise to liability under this doctrine by any proper definition. It is only claimed that they commenced the defamation action deliberately to malign, harass and intimidate plaintiff, thereby intentionally to inflict great mental and emotional distress. Whatever may be alleged as to motivation, the institution of the defamation action in the circumstances disclosed in this record does not constitute conduct within the rule described by Dean Prosser and the Restatement. Indeed, it may be questioned whether the doctrine of liability for intentional infliction of extreme emotional distress should be applicable where the conduct complained of falls well within the ambit of other traditional tort liability, here malicious prosecution and abuse of process. We also note that the conduct of these defendants does not fit under either of what appear to be the only two cases in point in the intermediate appellate courts in our State. (Long v Beneficial Fin. Co., 39 AD2d 11; cf. Restatement, op. cit., § 46,. subd [1], Comment e; Halio v Lurie, 15 AD2d 62, 65-67, supra.)

For the reasons stated the order of the Appellate Division should be modified, with costs, to the extent of granting summary judgment in favor of defendants dismissing the second cause of action, and as so modified, affirmed.

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

Order modified, with costs to defendants, in accordance with the opinion herein and, as so modified, affirmed. Question certified answered in the negative.


author: Fuchsberg, J.

text:
    The People of the State of New York, Respondent, v Robert K. Sobotker, Appellant.
    Argued January 10, 1978;
    decided February 14, 1978

      POINTS OF COUNSEL

      Michael M. Premisler for appellant.
    I. The stop and "seizure” of defendant-appellant and the subsequent search of the car was improper and the evidence should have been suppressed. (People v Cantor, 36 NY2d 106; People v Ingle, 36 NY2d 413; Terry v Ohio, 392 US 1; People v De Bour, 40 NY2d 210; People v Martinez, 37 NY2d 662; People v Allende, 39 NY2d 474; Warden v Hayden, 387 US 294; Beck v Ohio, 379 US 89.) II. The testimony relating to the stockings and two sets of clothing was highly prejudicial, irrelevant testimony. (Ryan v New York R. T. Corp., 253 App Div 846; People v Draper, 278 App Div 298; People v Stolof, 274 NY 231; People v Harris, 209 NY 70; People v Caruso, 246 NY 437; People v Mleczko, 298 NY 153; People v Ochs, 3 NY2d 54.) III. It was error to elicit testimony as to defendant’s failure to answer questions. (Miranda v Arizona, 384 US 436; Griffin v California, 380 US 609; United States v Brierly, 384 F2d 992; People v Rutigliano, 261 NY 103; People v Mleczko, 298 NY 153; People v Smith, 172 NY 210; People v Marendi, 213 NY 600; People v Pignatoro, 263 NY 229; People v Abel, 298 NY 333.) IV. The court improperly defined possession of a loaded weapon. (People v Knapp, 147 App Div 436; People v Williams, 243 NY 162; People v Wagner, 120 Misc 214.) V. The evidence was insufficient to show that defendant possessed a loaded gun. (People v Lewis, 274 NY 33; People v May, 290 NY 369; People v Sandgren, 277 App Div 217; People v Razezicz, 206 NY 249; People v Fitzgerald, 156 NY 253.)

      Denis Dillon, District Attorney (Martin I. Saperstein and William C. Donnino of counsel), for respondent.
    I. The police acted reasonably in investigating the conduct of defendant and his companions. (People v Oden, 36 NY2d 382; People v Alexander, 37 NY2d 202; People v Clements, 37 NY2d 675; People v Concepcion, 38 NY2d 211; People v Ingle, 36 NY2d 413; People v De Bour, 40 NY2d 210; People v Singleton, 41 NY2d 402; People v Denti, 44 AD2d 44; People v Stewart, 41 NY2d 65; People v Allende, 39 NY2d 474.) II. Defendant was properly convicted of possession of a loaded weapon as a felony and the introduction of the other seized items was proper. (People v Russo, 278 App Div 98, 303 NY 673; People v Feliciano, 32 NY2d 140; People v Bracey, 41 NY2d 296; People v Nitzberg, 287 NY 183; People v Fitzgerald, 156 NY 253; People v Foley, 307 NY 490; People v May, 290 NY 369; People v Becker, 215 NY 126; People v Jackson, 39 NY2d 64.) III. The police officer’s testimony that when he asked who owned the firearm found in the car, the three occupants remained silent, while error, does not warrant a new trial. (People v Von Werne, 41 NY2d 584; People v Patterson, 39 NY2d 288; United States v Rose, 500 F2d 12, 422 US 1031, 525 F2d 1026; United States v Cook, 432 F2d 1093, 401 US 996; People v Al-Kanani, 26 NY2d 473; People v Christman, 23 NY2d 429; People v Robinson, 13 NY2d 296; People v Travato, 309 NY 382; People v Abel, 298 NY 333; People v Dolce, 261 NY 108.) IV. The court’s charge was proper. (People v Armlin,
      6 NY2d 231; People v Farson, 244 NY 413; People v Robinson, 36 NY2d 224; People v Persce, 204 NY 397; People v Russell, 266 NY 147.)
   OPINION OF THE COURT

Fuchsberg, J.

The controlling issue on this appeal is whether the investigative stop of an automobile operated by the defendant violated constitutional strictures against unreasonable searches and seizures (NY Const, art 1, § 12; US Const, 4th Amdt).

After a trial by jury, the defendant was found guilty of the crime of possession of a weapon, as a felony (Penal Law, § 265.05). This followed the earlier denial of a motion to suppress the weapon, a gun, along with a clip containing five bullets, seized on the same occasion. The Appellate Division affirmed the judgment of conviction, Mr. Justice J. Irwin Shapiro dissenting. For the reasons which follow, we hold that the weapon and clip (including, of course, its contents) should have been suppressed and that, therefore, the judgment must be reversed.

The salient facts are not disputed. On the evening of April 26, 1974, two Nassau County policemen, dressed in plainclothes and seated in an unmarked car, positioned themselves in a well-traveled, well-lit shopping and entertainment area in Wantagh, Long Island; several burglaries had recently been reported in the vicinity. While stationed as described, the officers observed a Buick automobile proceeding slowly towards the next intersection, where a stop sign was located. On the way to the corner, at a point when the Buick was opposite a bar known ás "J.T.’s”, it slowed down from its speed of about five miles per hour to pause for a "second or two” during which the three men who were its occupants were seen to turn their heads in the bar’s direction. Continuing on, the automobile then came to a standstill at the stop sign, where, the police testified, the three men "glanced” toward a second bar. Thereupon, the police, activating their official siren and lights, forced the motor vehicle to pull over and stop at the curb.

The defendant, who was the driver of the car, stepped out, walked toward the police officers and, in response to their request that he produce his driver’s license, informed them that he possessed none. Also, although later verification proved that the automobile belonged to the mother-in-law of one of the two passengers and apparently was being used with her permission, the motor vehicle registration was not in their possession. The passengers were then directed out of the car and an ensuing "pat-down” of one of them resulted in the discovery of the five bullets in a clothes pocket that the police later described as exhibiting an undefined "bulge”. Contemporaneous search of the car itself revealed a gun under the front seat.

It is conceded that, had the stop of the car which preceded the search not occurred, the possession of the gun and the clip would not have been discovered. The conclusion that the stop was an impermissible intrusion is compelled by People v Ingle (36 NY2d 413) where, in considerable detail, we clarified the circumstances under which police officers may stop a motor vehicle on a public highway. We there stressed the fact that such a stop is justified only when conducted pursuant to "nonarbitrary, nondiscriminatory, uniform” highway traffic procedures, or when there is specific cause or, at least, reasonable suspicion that a motorist is about to violate a law. As to the latter, we quoted the Supreme Court’s concordant language in which it spelled out that the cause must be one "based upon 'specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant [the] intrusion’ (Terry v Ohio, 392 US 1, 21)” (id., p 420).

The stop in the present case is to be distinguished from the exercise of the common-law right of inquiry of a pedestrian discussed in the majority opinion in People v De Bour (40 NY2d 210). For the "common-law power to inquire does not include the right to unlawfully seize” (People v Cantor, 36 NY2d 106, 114; see, also, People v Earl, 40 NY2d 941, revg on dissenting opn of Mr. Justice Shapiro at 50 AD2d 289, 290-294, cert den 431 US 943). Thus, except for routine checks to enforce automobile regulations (which neither side contends was the case here), our repeated decisions make abundantly clear that, absent at least a reasonable suspicion that its occupants had been, are then, or are about to be, engaged in conduct in violation of law, the stopping of an automobile by the police constitutes an impermissible seizure (People v Ingle, supra, p 418; see, also, People v Allende, 39 NY2d 474; People v Martinez, 37 NY2d 662; People v Simone, 39 NY2d 818; cf. CPL 140.50).

In particular, "reasonable suspicion” has been aptly-defined as "the quantum of knowledge sufficient to induce an ordinarily prudent and cautious man under the circumstances to believe that criminal activity is at hand” (People v Cantor, supra, pp 112-113). The requisite knowledge must be more than subjective; it should have at least some demonstrable roots. Mere "hunch” or "gut reaction” will not do. (Compare, e.g., People v Erwin, 42 NY2d 1064 [driving through a red light]; People v Singleton, 41 NY2d 402 [apparently switched license plates], with People v Martinez, supra, p 666, n 2; People v Simone, supra; People v Allende, supra; People v Ingle, 36 NY2d 413, supra; People v Cantor, supra; see, also, Pennsylvania v Mimms, 434 US 106 [operating vehicle with expired license plate justified stop]).

The record here is bare of any objective evidence of criminal activity as of the time of the stop from which flowed the chain of events culminating in the arrest. That the officers, as one of them put it, "felt that a crime was about to be committed”, sincere as this sentiment may have been, does not suffice. By itself, the seemingly innocuous act of the defendant and his companions in glancing at a bar, even if it could be argued that they were then driving through a "high crime neighborhood”, did not reasonably denote criminal conduct (cf. People v Julian, 43 NY2d 733; People v T., 39 NY2d 1028, revg on dissenting opn of Presiding Justice Stevens at 48 AD2d 779, 781). Nor did the fact that their brief pauses en route were two in number, one in compliance with the dictates of the stop sign, by any means turn what was unremarkable behavior quantitatively into conduct that had qualitative significance. And there was not even a suggestion that the conduct of the defendant or his companions had been furtive in character before the police interfered with their car’s progress (cf. Matter of Eugene J., 42 NY2d 1058).

To be sure the circumstances very well may have justified the police, as they pursued their law enforcement obligations, in continuing to keep the car under observation. Then, if patience rather than precipitancy had prevailed, the reward of good police work might well have been a seizure which the continued observation had rendered no longer devoid of a factual predicate for a founded belief that criminal conduct was under way. But, at the premature juncture at which the police did in fact act in this instance, they had come upon no fruit ready for harvesting.

Subsequent events did indeed demonstrate that the officers’ hunch may well have been correct. But a search may not be justified by its avails alone. Constitutionally protected rights are not to be dispensed with in this case solely because the results of the improper search and seizure uncovered the fact that one or all of the persons who were its targets were armed with a deadly weapon. Almost any series of indiscriminate seizures is bound to produce some instances of criminality that might otherwise have gone undetected or unprevented. But were hindsight alone to furnish the governing criteria, a vital constitutional safeguard of our personal security would soon be gone.

Accordingly, the order of the Appellate Division should be reversed, the judgment vacated, and the indictment dismissed. And, since it appears from the record that the conviction in this case was the premise for a guilty plea to violation of probation granted defendant in a judgment rendered on an earlier and unrelated indictment, the plea and the amended judgment entered thereon should be vacated and the case remitted for further proceedings on that charge.

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

Order reversed, judgment vacated and indictment dismissed, defendant’s plea of guilty to violation of probation and the amended judgment entered thereon vacated, and the case remitted to Nassau County Court for further proceedings on the charge of violation of probation.

         In view of our disposition of this appeal, other details concerning the events after the car was stopped and alleged trial errors pressed by appellant would appear to be irrelevant.


author: Cooke, J. Wachtler, J. (dissenting).

text:
    Anna Northrup, Appellant, v Ray A. Northrup, Sr., Respondent.
    Argued January 6, 1978;
    decided February 14, 1978

      POINTS OF COUNSEL

      Richard F. Anderson for appellant.
    I. Section 248 of the Domestic Relations Law modification of the divorce decree to eliminate alimony was impermissible because the ex-wife, while cohabiting with another man, was not "holding herself out as his wife.” II. Section 248 does not require elimination of alimony for the ex-wife’s postmarital misconduct. III. Section 248 permits the termination of alimony where the ex-wife pretends she’s remarried. (Hayes v Hayes, 220 NY 596; Matter of Hall v Hall, 82 Misc 2d 814, 55 AD2d 752; Stern v Stern, 88 Misc 2d 860.) IV. The plain meaning of section 248 requires more than cohabitation to constitute holding oneself out as married. (Stern v Stern, 88 Misc 2d 860.) V. If section 248 is an anachronism, change should come from the Legislature instead of the court. (Erkenbrach v Erkenbrach, 96 NY 456; Steinberg v Steinberg, 46 AD2d 684, 36 NY2d 690.) VI. Absent a remarriage or holding out within the meaning of section 248, termination of alimony is inappropriate unless changed financial circumstances are demonstrated. (Matter of Hall v Hall, 82 Misc 2d 814, 55 AD2d 752.)

      George A. Schell for respondent.
    I. The decision below should be affirmed since only factual issues were present.
      (People ex rel. Scarpetta v Spence-Chapin Adoption Serv., 28 NY2d 185; Caristo Constr. Corp. v Diners Fin. Corp., 21 NY2d 507.) II. The trial court properly exercised its discretion in terminating husband’s obligation to pay alimony pursuant to section 248 of the Domestic Relations Law. (Dunn v Dunn, 4 Paige Ch 425; Pollock v Pollock, 71 NY 137; Wilcox v Wilcox, 46 Hun 32; Matter of Erlanger, 145 Misc 1.) III. Section 248 of the Domestic Relations Law is designed to eliminate situations where an ex-wife is receiving "double support”. (Levine v Levine, 79 Misc 2d 149; Krawczuk v Krawczuk, 49 AD2d 1003.)
   OPINION OF THE COURT

Cooke, J.

On March 7, 1974, plaintiff Anna Northrup was granted a judgment of divorce from defendant Ray A. Northrup Sr. Defendant was awarded custody of the children of the marriage, but was also ordered to pay alimony to plaintiff in the sum of $160 per month. After making two payments, defendant defaulted and, on August 19, 1974, plaintiff moved to hold him in contempt and for a judgment for unpaid arrears. Defendant cross-moved for an order modifying the judgment of divorce to eliminate the provision for alimony.

The basis for defendant’s cross motion is section 248 of the Domestic Relations Law which provides, in relevant part, as follows: "The court in its discretion upon application of the husband on notice, upon proof that the wife is habitually living with another man and holding herself out as his wife, although not married to such man, may modify such final judgment and any orders made with respect thereto by annulling the provisions of such final judgment or orders or of both, directing payment of money for the support of such wife.”

A hearing was held on defendant’s contention that he should no longer be required to pay alimony in view of the fact that his former wife was living openly and notoriously with another man. Based on uncontradicted evidence, the hearing court found that, from March 7, 1974 to September 19, 1974, plaintiff lived with Douglas Prentice, not her husband, shared the same bedroom with him, cooked meals, did his wash, permitted him to use her car, and shared household expenses with him. It was also determined that there was no evidence that plaintiff ever stated to anyone that she was married to Prentice.

Supreme Court concluded that the evidence overwhelmingly established that plaintiff was habitually living with another man not her husband, and then focused upon the meaning of the phrase "holding herself out as his wife, although not married to such man” in section 248 of the Domestic Relations Law. Reasoning that the Legislature did not intend the continued payment of alimony to be dependent merely upon statements or representations made by a former wife, it construed the statute to mean "statements or conduct which would lead a person to believe that the parties are living and associating as husband and wife.” On this analysis, the provision for alimony was eliminated. However, defendant was held in contempt for his prior failure to make alimony payments, fined in the sum of his arrears, and ordered to pay plaintiff’s counsel $300 as fees for his services.

The Appellate Division unanimously affirmed, stating that there was sufficient proof that plaintiff held herself out as the wife of the man with whom she was living. Underlying this determination was its legal conclusion that section 248 of the Domestic Relations Law does not require the husband to prove that his former wife made affirmative representations to third parties that she and her paramour were married. Instead, it was held that cohabitation in what might be reasonably considered a marital relationship is sufficient to satisfy the statutory predicate. This decision was in error and, accordingly, the order appealed from should be reversed.

The issue is purely one of statutory construction. The courts of this State have no common-law jurisdiction over divorce or its incidents. The power to modify a provision for alimony is only such as is conferred by statute (Waddey v Waddey, 290 NY 251, 253; Erkenbrach v Erkenbrach, 96 NY 456, 462-463). Indeed, early cases held that, in the absence of statutory authority, the court had no right to terminate the wife’s alimony on the ground that she had remarried (Shepherd v Shepherd, 1 Hun 240, affd 58 NY 644; see, generally, Alimony—Effect of Remarriage, Ann., 48 ALR2d 270, 289-291). That bar, of course, has long since been eliminated by statute (see Domestic Relations Law, § 248 [first sentence]). However, even immoral conduct will not permit the court to make a modification unless the type of conduct engaged in is contemplated by the statutory language (see Hayes v Hayes, 220 NY 596; 2 Foster-Freed, Law and the Family, § 26:19).

This case illustrates the statutory distinction between “habitually living with another man”, on the one hand, and "holding herself out as his wife”, on the other. This is a two-part test. The absence of proof in a particular case does not justify an inference that cohabitation alone manifests a holding out.

The hearing court was concerned that the statute might be circumvented by a woman who openly proclaims that she is not married to the man with whom she is living. Hence, it examined the conduct of plaintiff and Prentice. But none of the actions exhibited by plaintiff constitute a "holding out”. In other contexts, a holding out is said to require "some assertive conduct” (People v Shokunbi, 89 111 App 2d 53, 58 [holding one’s self out as a physician]). However, this does not mean that there must be some statement such as "I am his wife”, although assertions such as this would be sufficient proof. To be sure, conduct may constitute a holding out. For example, one court has held that a woman holds herself out as a man’s wife by these actions: (1) applying for a telephone, designating him as her spouse and asking that she be listed in the directory with his surname; and (2) changing the names on their joint checking account so that she uses his surname (Lang v Superior Ct. of Los Angeles County, 53 Cal App 3d 852). These examples are not meant to suggest a limitation on the type of proof required, but simply to illustrate the types of conduct which might demonstrate a holding out. Here, there has been no such showing. There is no evidence here other than that plaintiff for six months habitually lived with another man. This is not enough.

The statute may .indeed be circumvented where the woman negates any inference that she is holding herself out as married (see Stern v Stern, 88 Misc 2d 860, 864). To be disapproved, however, are holdings that, in the absence of efforts to show that the parties are not man and wife, the "life style” of the parties constitutes a "holding out” (see Matter of Anonymous, 90 Misc 2d 801, 804). The fact that a woman may avoid the loss of alimony by tailoring her conduct should not be surprising. The forerunner (L 1938, ch 161) to the present statute was specifically enacted to counteract a situation where a woman, who represented that she was married to the man with whom she was living, was held entitled to alimony because she had not, in fact, remarried (see Citron v Citron, 91 Misc 2d 785 [discussion of legislative history]). The statute thus imposes two requisites for the termination of alimony in the absence of remarriage: (1) habitually living with a man, and (2) holding herself out as his wife. The courts are without power to modify merely on proof of one.

This court is not bound by the finding of the courts below that there was a holding out. The facts are undisputed. The issue before us is the legal conclusion to be drawn from that which has been found. We conclude that, as a matter of law, defendant has failed to establish that plaintiff held herself out as married to another man (cf. Cohen and Karger, Powers of the New York Court of Appeals, § 108, pp 452-453). That individuals may conform to the life style of a married couple is not enough.

The fact of the matter is that section 248 of the Domestic Relations Law, as presently drafted, does not authorize a court to terminate a provision for alimony merely upon a showing that an ex-wife is living with another man. The court cannot extend the reach of the statutes (see, e.g., Leffler v Leffler, 50 AD2d 93, affd 40 NY2d 1036 [section 248 held inapplicable to separation agreements]; Wechter v Wechter, 50 AD2d 826, affd 40 NY2d 964 [grounds for divorce are limited to those set forth in section 170]). Change, if deemed advisable, must come from the Legislature.

Accordingly, the order of the Appellate Division, should be reversed, with costs, and defendant’s cross motion to modify the decree of divorce denied.

Wachtler, J. (dissenting).

I cannot agree with the majority that the Legislature intended section 248 of the Domestic Relations Law to be interpreted in such a narrow, technical and unrealistic manner. Ironically this is not the first time this court has frustrated the purpose of the statute by employing a literal interpretation which does not take into account current social realities.

Prior to 1938 section 1159 of the Civil Practice Act (now Domestic Relations Law, § 248) required the former wife to remarry before the court could alter the alimony decree (see, e.g., Citron v Citron, 91 Misc 2d 785, for a discussion of the legislative history). In Waddey v Waddey (290 NY 251) this provision was literally interpreted to require a ceremonial remarriage. As interpreted the statute contained a loophole which permitted a former wife to continue to collect support from her former husband although she was living with another man holding herself out to be his wife, so long as she simply avoided formalizing the relationship by a marriage ceremony (Waddey v Waddey, supra).

Rejecting this interpretation the Legislature, in 1938, amended the statute to provide that the court could intervene to alter the alimony award if the former wife "is habitually living with another man and holding herself out as his wife” (L 1938, ch 161). Today the court has compounded the error by giving a technical interpretation to the liberalizing amendment. And, once again, they have read the statute in such a way as to virtually render it a dead letter by requiring a degree of formality which the majority must recognize is unrealistic in terms of current social standards and practices. Indeed the majority concedes that their interpretation of the amendment creates a new method for avoiding the statute.

A court of course cannot rewrite a statute but the statute must be given a reasonable interpretation—one which will maintain its effectiveness and carry out the legislative intent (see, e.g., McKinney’s Cons Laws of New York, Book 1, Statutes, §§ 143, 144). In my view, the amendment to the statute following the Waddey decision shows that the Legislature intended the courts to consider the extent of the wife’s new relationship without respect to formalities. They intended the courts to recognize current social realities in applying the statute. Above all they intended to close the loophole and not create a new means for avoidance.

Finally I would note that the statute does not provide for automatic modification or termination of alimony whenever the former wife is residing with a man. It simply gives the court the power to exercise sound discretion to eliminate injustice and to defuse an emotionally charged situation. Today’s decision leaves the courts powerless to relieve the former husband of the obligation of subsidizing his former wife’s affairs no matter how unfair this may be under the circumstances. It is hard to imagine that the Legislature ever intended such a grotesque result.

Accordingly I would affirm the order of the Appellate Division.

Chief Judge Breitel and Judges Jasen, Jones and Fuchs-berg concur with Judge Cooke; Judge Wachtler dissents and votes to affirm in a separate opinion in which Judge Gabrielli, concurs.

Order reversed, etc.


author: Chief Judge Breitel.

text:
    In the Matter of Denis Dillon, as District Attorney of Nassau County, Appellant, v Nassau County Civil Service Commission et al., Respondents. In the Matter of Nicholas Stagliano, Appellant, v New York State Civil Service Commission et al., Respondents.
    Argued January 10, 1978;
    decided February 16, 1978

      POINTS OF COUNSEL

      Denis Dillon, Nassau County District Attorney (William C. Donnino and Steven R. Bernard of counsel), for appellant in the first above-entitled proceeding.
    The failure of civil service to classify the investigative positions in the office of the District Attorney as exempt, was arbitrary and capricious. (Chittenden v Wurster, 152 NY 345; Matter of Rooney v Rice, 274 NY 347; Matter of Foy v Schechter, 1 NY2d 604; People v Fielding, 158 NY 542; People v Selikoff, 35 NY2d 227; Matter of Ottinger v State Civ. Serv. Comm., 240 NY 435; Matter of Meenagh v Dewey, 286 NY 292; Matter of Friedman v Finegan, 268 NY 93; People v Robertson, 12 NY2d 355.)

      Louis J. Lefkowitz, Attorney-General (Robert S. Hammer and Samuel A. Hirshowitz of counsel), for New York State Civil Service Commission and another, respondents in the first above-entitled proceeding.
    I. No right to relief was ever established against the State respondents. Moreover, any review of State action would be barred by the Statute of Limitations. (Young Men’s Christian Assn, v Rochester Pure Waters Dist, 37 NY2d 371; Matter of Baldwin v McCoy, 35 AD2d 1059; Rieder v State Univ. of N. Y, 47 AD2d 865, 39 NY2d 845; Merante v Burns, 47 AD2d 671; Matter of Paroli v Bolton, 57 Misc 2d 952, 35 NY2d 772; Matter of Allstate Ins. Co. v Stewart, 36 AD2d 811.) II. District Attorney’s investigators may be properly classified as "competitive” or "non-competitive” by local civil service authorities. (Matter of Ottinger v State Civ. Serv. Comm., 240 NY 435; Matter of Paroli v Bolton, 44 AD2d 557, 35 NY2d 772; Matter of Grossman v Rankin, 54 AD2d 639; People ex rel. Schau v McWilliams, 185 NY 92; Matter of State of New York v King, 36 NY2d 59; Matter of Nigrone v Murtagh, 36 NY2d 421; Matter of Meenagh v Dewey, 286 NY 292; Matter of Holcombe v Gusty, 51 AD2d 868.)

      William Gitelman, County Attorney (William S. Norden and Natale C. Tedone of counsel), for Nassau County Civil Service Commission, respondent in the first above-entitled proceeding.
    I. Appellant’s inconsistent position in exempting the present investigators from his proposed reclassification clearly demonstrates a concession by appellant that the county respondent was correct in refusing to reclassify appellant’s investigators from the competitive to the exempt class. (Matter of Rooney v Rice, 249 App Div 124.) II. Respondent Nassau County Civil Service Commission’s resolution denying the District Attorney of Nassau County’s request for change of the jurisdictional classification of the investigator positions in the office of the District Attorney from competitive to exempt has a rational basis and should not be disturbed. (Matter of Mandle v Brown, 4 AD2d 283, 5 NY2d 51; People v Newschatz, 40 NY2d 935; Matter of Smith v New York City Police Dept., 56 AD2d 769; Matter of Detective Endowment Assn., Police Dept., City of N. Y. v Leary, 36 AD2d 289, 30 NY2d 577; Matter of Ottinger v State Civ. Serv. Comm., 240 NY 435; Matter of Clare v Silver, 4 NY2d 107; Matter of Schrader v Civil Serv. Comr. of Monroe County, 53 AD2d 210.) III. The county respondent’s determination in refusing appellant’s application, after hearing, which requested reclassification of certain investigatory positions in appellant’s office as "exempt” from "competitive” and "non-competitive” was lawful and proper. (People ex rel. Langdon v Dalton, 49 App Div 71, 163 NY 556; People ex rel. Schau v McWilliams, 185 NY 92; People ex rel. Moriarty v Creelman, 206 NY 570; Matter of Grossman v Rankin, 54 AD2d 639; Matter of Metropolitan Life Ins. Co. v Boland, 281 NY 357; Matter of Ottinger v State Civ. Cerv. Comm., 240 NY 435; Matter of Andresen v Rice, 277 NY 271.) IV. The case of Holcombe v Gusty (51 AD2d 868) is not persuasive or conclusive and should not be followed. (Matter of Holcombe v Gusty, 86 Misc 2d 698, 51 AD2d 868; Matter of Grossman v Rankin, 54 AD2d 639; People ex rel. Schau v McWilliams, 185 NY 92; Matter of Ottinger v State Civ. Serv. Comm., 240 NY 435; Matter of Dillon v Nassau County Civ. Serv. Comm., 56 AD2d 930.)

      Samuel W. Eager, Jr., for appellant in the second above-entitled proceeding.
    The position of criminal investigator should be classified as "non-competitive” or "exempt”. (Chittenden v Wurster, 152 NY 345; Matter of Paroli v Bolton, 57 Misc 2d 952, 35 NY2d 772.)

      Louis J. Lefkowitz, Attorney-General (Robert S. Hammer,

      Samuel A. Hirshowitz and A. Seth Greenwald of counsel), for the New York State Civil Service Commission and another, respondents in the second above-entitled proceeding.
    District Attorney’s investigators may be properly classified as "competitive” by the Civil Service Commission. (Matter of Grossman v Rankin, 43 NY2d 493; Matter of Ottinger v State Civ. Serv. Comm., 240 NY 435; Matter of Paroli v Bolton, 44 AD2d 557, 35 NY2d 772; Matter of Meenagh v Dewey, 286 NY 292; Matter of Holcombe v Gusty, 51 AD2d 868.)

      David S. Ritter, Orange County District Attorney, amicus curiae, in the second above-entitled proceeding.
    It is not practicable to competitively examine for the position of criminal investigator in a District Attorney’s office. (Matter of Holcombe v Gusty, 51 AD2d 868; People ex rel. Flood v Gardiner, 157 NY 520.)
   OPINION OF THE COURT

Chief Judge Breitel.

In two separate CPLR article 78 proceedings petitioners seek to compel civil service reclassification of the positions of criminal investigators in the Nassau County and Orange County District Attorneys’ offices. The asserted ground in both cases is the confidential character of the work done by the investigators. Supreme Court granted judgment in favor of petitioners in both cases. The Appellate Division reversed and dismissed the proceedings. Petitioners appeal.

Petitioner Dillon, the Nassau County District Attorney, seeks to annul the determination of the Nassau County Civil Service Commission denying his request to reclassify criminal investigators in his office, for appointment purposes, as "exempt” instead of "competitive” and "non-competitive”. Petitioner Stagliano, a provisional appointee to the position of Criminal Investigator in the Orange County District Attorney’s Office, seeks to compel the State Civil Service Commission to reclassify that position as "non-competitive” or "exempt”.

The issue, common to both cases, is whether administrative refusal to reclassify all criminal investigators as exempt or noncompetitive lacks a reasonable basis, because the investigators act in a confidential capacity, and is therefore invalid.

In each case, there should be an affirmance. Petitioners’ bare contention that the confidentiality expected of criminal investigators makes competitive classification of any investigators impracticable is insufficient to invalidate the classifications made. Moreover, it cannot be said that exempt classification of criminal investigators in some District Attorneys’ offices, by that fact alone, makes competitive or noncompetitive classification in other offices arbitrary.

The Nassau County District Attorney’s Office, a relatively large office in a metropolitan county, employs numerous criminal investigators. The position of chief investigator and the two deputy chief investigator positions are classified noncompetitive, while the remainder of the positions are classified competitive by the Nassau County Civil Service Commission (see, generally, Civil Service Law, §§ 40-44; Matter of Gross-man v Rankin, 43 NY2d 493, 499). After a hearing held on June 17, 1976, at which District Attorney Dillon presented his case for reclassification, the commission declined to reclassify the positions, finding that the duties and level of confidentiality had "not appreciably changed” since the matter had last been considered in 1968-1969. Special Term, noting that the positions "are of a confidential and sensitive nature”, granted judgment to petitioner annulling the determination of the Nassau County Civil Service Commission. A unanimous Appellate Division reversed.

The Orange County District Attorney’s Office, a much smaller office, employs only three criminal investigators. The chief criminal investigator is classified "exempt”, while the senior criminal investigator and the criminal investigator are classified "competitive”. Petitioner Stagliano received a provisional appointment as criminal investigator on March 18, 1974. Subsequently, he took the competitive civil service examination for that position, and passed it, but did not score well enough to be eligible for permanent appointment. The Orange County District Attorney has not yet replaced Stagliano with anyone from the eligible lists submitted to him. On May 19, 1975, after the State Civil Service Commission denied the District Attorney’s request to reclassify the position as noncompetitive, petitioner brought this proceeding to direct the commission to place the position in the noncompetitive or exempt class. Special Term granted judgment to petitioner for reasons similar to those stated in the Nassau County case. The Appellate Division unanimously reversed.

Petitioners contend that the confidentiality of the position of criminal investigator should prevent classification of the position as "competitive”. Petitioner Dillon seeks an "exempt” classification for all of his investigators; petitioner Stagliano would be satisfied with a "non-competitive” classification. Petitioners contend that qualities of character, not easily tested by examination, are required of criminal investigators. The exceptional confidential nature of the position, in particular, is advanced as a justification for exempt or noncompetitive status.

An important factor to consider in deciding whether a position should be classified noncompetitive or exempt is whether it involves highly confidential duties (Matter of Meenagh v Dewey, 286 NY 292, 307; Chittenden v Wurster, 152 NY 345, 359). At the same time, the need for confidentiality, alone, does not mandate an exempt classification (Matter of Ottinger v Civil Serv. Comm., 240 NY 435, 442; cf. Matter of Simons v McGuire, 204 NY 253, 260). Other factors may and should be considered, and presumably were considered in these cases.

Classifications made by a civil service commission are subject only to limited judicial review. Only if the classification ' lacks any basis in harmony with the constitutionally mandated merit selection system for civil service employees may the determination be overturned by the courts in a proceeding in the nature of mandamus (see NY Const, art V, § 6; Matter of Grossman v Rankin, 43 NY2d 493, 503-504, supra; Matter of Rooney v Rice, 274 NY 347, 351-352; People ex rel. Schau v McWilliams, 185 NY 92, 99).

By way of caveat, it should be noted that these cases would be more difficult to resolve, even given the limited scope of judicial review in mandamus, had the respective Civil Service Commissions classified all criminal investigators "competitive”, or had petitioners challenged the refusal to classify even a small percentage of investigators as "exempt”. It may well be that a District Attorney is entitled to have one or, in a larger office, several investigators who enjoy his complete personal confidence. So, too, in the rare case, there may be a legitimate basis for creating a few positions for specialists outside the tenured career lines of appointment and promotion. There may be investigative tasks for which the trust of the District Attorney might be considered more important than any measurable objective characteristic.

But petitioners do not make such challenges. Hence, such challenges were not before the commissions and are not now before the court. Instead, petitioners assert, in effect, that classification of any investigators as competitive is arbitrary and capricious. Petitioner Dillon makes no distinctions among the many investigative positions in his office. Petitioner Stagliano contends similarly that even the lowest-ranking investigator in the Orange County office may not be classified "competitive”. This absolutist position is unpersuasive.

In Matter of Meenagh v Dewey (286 NY 292, 306, supra), involving classification of process servers in a District Attorney’s office, Chief Judge Lehman outlined the wisdom of classifying some positions within a given title exempt, and others competitive: "We may assume that the classification of twelve of the original sixty positions of process server in the exempt class, while forty-eight of the positions with that title were classified in the competitive class, was made because the Commission found that for the performance of some duties a few men were needed with special qualities for which an examination would furnish no practicable test. Ability to perform the routine duties of a process server would not prove fitness to perform those duties which, in the opinion of the Commission, could be performed only by men selected by the District Attorney because of their personal qualities”. More recently in Matter of Grossman v Rankin (43 NY2d 493, 504, supra), the court again acknowledged the propriety of similar titles with different civil service classifications. This same approach might be appropriate in dealing with criminal investigators and may, indeed, be what has motivated the Civil Sevice Commission to classify the top level investigators noncompetitive or exempt, while classifying other investigators competitive. In fact, the principle expressed by Chief Judge Lehman was repeated in a memorandum by Governor Malcolm Wilson accompanying his veto of a bill that would have provided exempt status for criminal investigators: "I can understand the need for exempt status of some investigators and confidential assistants. To the extent that the need can be shown for some, expecially those engaged in undercover work, to have exempt status * * * I assume that the relevant local and State civil service authorities would be sensitive to the particularized needs of criminal justice agencies, especially in a time of rising crime. This bill is not so limited, however, rather, it would extend exempt status to all investigators and confidential assistants, including those carrying out relatively routine, non-sensitive functions, and for that reason, I am constrained to withhold my approval of the bill.” (1974 Public Papers of Governor Malcolm Wilson, p 150.)

Thus, the classification problem cannot be resolved by resort to absolutes. Just as petitioners’ argument that no investigators may be classified as competitive must be rejected, were the Civil Service Commission, in the face of a demonstrable need for some exempt or noncompetitive positions, to insist on classifying all positions competitive, that classification might well be struck down as unreasonable. On the record in these cases, however, the classifications cannot be termed arbitrary.

On this analysis, it is not decisive that in some other counties, because of the possible or likely variation in local circumstances, all criminal investigators are classified exempt. There is a measure of flexibility allowed a civil service commission, beyond judicial review, in deciding whether to classify investigators "exempt”, and how many to so classify. While in some counties all investigators are classified exempt, in others all are classified competitive, and in still others, as in Nassau and Orange, there is a combination of classifications. The difference in treatment, taken alone, does not establish that any one classification or that the Statewide pattern is arbitrary. Instead, a petitioner must show that the determination by which he feels aggrieved cannot stand on any reasonable basis. Or a petitioner must show at least that the State-wide pattern is not based legitimately on local variations in conditions, office organization, availability and use of coexistent police resources, and the like. Even then for a petitioner to prevail he must show that the classification he seeks is the right one; it is not enough to show that a classification elsewhere is the wrong one. The petitioners in this case have not demonstrated any of these defects. But it does not mean that a proper case for excluding confidential investigators from the competitive class could never be made out.

Accordingly, the orders of the Appellate Division should be affirmed, without costs.

Judges Jasen, Gabrielli, Jones, Wachtler, Fuchsberg and Cooke concur.

In each case: Order affirmed.


author:
Jasen, J.
      Gabrielli, J. (dissenting in part).

text:
    Dwight C. Martin, Appellant, v Julius Dierck Equipment Co. et al., Respondents. Raymond Corporation, Third-Party Plaintiff, v Western Electric Corp., Third-Party Defendant.
    Submitted November 17, 1977;
    decided January 18, 1978

      POINTS OF COUNSEL

      Seymour Armstrong and Lawrence M. Rosenberg for appellant.
    I. The cause of action for breach of warranty accrued in the State of New York and CPLR 202 is not applicable. (Mendel v Pittsburgh Plate Glass Co., 25 NY2d 340; Blessing-ton v McCrory Stores Corp., 305 NY 140; Myers v Dunlop Tire & Rubber Corp., 69 Misc 2d 729, 40 AD2d 599; Victorson v Bock Laundry Mach. Co., 37 NY2d 395; Codling v Paglia, 32 NY2d 330.) II. The State with the most significant contacts with the issues to be determined is New York State, and the cause of action accrued in New York State. (Miller v Miller, 22 NY2d 12.) III. A triable issue of fact as to the effect of the tolling provisions of the revised 1950 Virginia Code (§ 8-33) is present.

      Jeffrey Silberfeld for Julius Dierck Equipment Co., respondent.
    I. The court below acted correctly when it resolved the question of where plaintiffs causes of action accrued by analyzing the "contacts” of the interested jurisdictions. (Babcock v Jackson, 12 NY2d 473; Auten v Auten, 308 NY 155; Myers v Dunlop Tire & Rubber Corp., 69 Misc 2d 729, 40 AD2d 599.) II. Upon analyzing the "contacts” of the interested jurisdictions, the court below correctly concluded that all of plaintiffs causes of action accrued in Virginia. (Daigle v Leavitt, 54 Misc 2d 651; Fullmer v Sloan’s Sporting Goods Co., 277 F Supp 995.) III. The court below correctly held that no questions of fact exist as to whether a certain tolling provision of Virginia’s Statute of Limitations became operative.

      Sidney A. Schwartz and John T. McDonald for Raymond Corporation, respondent.
    I. Plaintiffs causes of action accrued in the State of Virginia and are barred by virtue of the Virginia Statute of Limitations and CPLR 202. (Victorson v Bock Laundry Mach. Co., 37 NY2d 395; Babcock v Jackson, 12 NY2d 473; Auten v Auten, 308 NY 155; Sack v Low, 478 F2d 360; Codling v Paglia, 32 NY2d 330; Daigle v Leavitt, 54 Misc 2d 651; Lowell Wiper Supply Co. v Helen Shop, 235 F Supp 640; Chartener v Kice, 270 F Supp 432; Mendel v Pittsburgh Plate Glass Co., 25 NY2d 340; Schmidt v Merchants Desp. Transp. Co., 270 NY 287.) II. Raymond was at all times subject to suit in the State of Virginia and Virginia’s tolling statutes are factually inapplicable. In addition, no issue of fact was properly raised below regarding the amenability of Raymond to jurisdiction. (Jackson v National Linen Serv. Corp., 248 F Supp 962; Shapiro v Health Ins. Plan of Greater N. Y., 7 NY2d 56; Schillinger v North Hills Realty Corp., 15 AD2d 539, 11 NY2d 1044; Mallad Constr. Corp. v County Fed. Sav. & Loan Assn., 32 NY2d 285; Capelin Assoc, v Globe Mfg. Corp., 34 NY2d 338.)
   OPINION OF THE COURT

Jasen, J.

The novel question posed by this appeal is whether, for purposes of CPLR 202, plaintiffs causes of action for personal injury accrued in the jurisdiction in which he was injured or in the jurisdiction in which the vehicle alleged to have caused the injury was delivered.

Plaintiff, a resident of the District of Columbia, was injured in Arlington, Virginia, on June 7, 1968, at the warehouse of his employer, Western Electric, when a forklift truck he was operating allegedly malfunctioned, throwing him from the vehicle. The forklift was manufactured by defendant Raymond, a corporation with its principal place of business in Greene, New York, and sold to Western Electric on June 26, 1967 "f.o.b. Greene, New York” through defendant Dierck, a distributor with its principal place of business in New York City.

Alleging causes of action in negligence and breach of warranty against both defendants, plaintiff commenced the present action against Dierck on May 21, 1971, and against Raymond on June 25, 1971. Defendants moved for summary judgment, contending that pursuant to CPLR 202—our "borrowing” statute—New York must apply the Virginia Statute of Limitations, which provides "every action for personal injuries * * * shall be brought within two years next after the right to bring the same shall have accrued.” (Va Code [1950], § 8-24.) Defendants maintained that the causes of action for breach of warranty and negligence accrued without the State on May 6, 1969, the date of plaintiff’s 21st birthday, and were, therefore, barred by Virginia’s two-year Statute of Limitations.

Applying CPLR 202, Special Term held that the negligence causes of action "accrued”, for purposes of the borrowing statute, in Virginia—the place of the injury—rather than in New York—the place of manufacture and delivery. As to the breach of warranty causes of action, however, the court held that these causes of action "accrued” in New York. Consequently, since the court found the breach of warranty causes of action to have "accrued” in New York, Special Term held the borrowing statute inapplicable and plaintiff’s complaint timely under New York’s four-year Statute of Limitations for breach of warranty.

Although having concluded that the negligence causes of action "accrued” in Virginia and, therefore, that Virginia’s two-year Statute of Limitations governed plaintiff’s claim, Special Term denied defendants’ motion for summary judgment in its entirety, finding that factual issues existed as to whether Virginia’s Statute of Limitations was tolled due to plaintiff’s alleged inability to obtain jurisdiction over the defendants in Virginia.

On appeal, the Appellate Division reversed and granted defendants’ motions for summary judgment, holding that, for purposes of the borrowing statute, plaintiff’s breach of warranty, as well as negligence, causes of action "accrued” in Virginia, the jurisdiction which it believed had the greater interest in the litigation. In regard to the tolling of Virginia’s Statute of Limitations, the Appellate Division, finding that no question of fact existed, concluded that both defendants were amenable to jurisdiction in Virginia.

We hold that, for purposes of the "borrowing statute”, the negligence causes of action as well as the cause of action which plaintiff has labeled "breach of warranty” accrued in Virginia, and are therefore barred by Virginia’s two-year Statute of Limitations.

Viewed as pertaining to the remedy rather than the right, Statutes of Limitations have traditionally been characterized as procedural. (1943 Report of NY Law Rev Comm, p 143; Goodrich, Conflict of Laws [3d ed], § 85; Weintraub, Commentary on the Conflict of Laws 48.) Since under common-law rules matters of procedure are governed by the law of the forum, it has generally been held that the Statute of Limitations of the forum rather than that of the jurisdiction where the cause of action accrued governs the timeliness of a cause of action. (Leflar, American Conflicts Law, § 127.) To temper the rigid application of this rule, most States have enacted "borrowing” statutes which, although varying from State to State, "borrow” the foreign Statute of Limitations of the jurisdiction in which the defendant or both parties resided or the jurisdiction in which the cause of action accrued, if to do so would bar the plaintiff’s cause of action. (Leflar, American Conflicts Law, § 128; see, generally, Restatement, Conflict of Laws [2d], § 142, Comment f; Ester, Borrowing Statutes of Limitation and Conflict of Laws, 15 U Fla L Rev 33; Vernon, Statutes of Limitations in the Conflict of Laws: Borrowing Statutes, 32 Rocky Mt L Rev 287; Milhollin, Interest Analysis and Conflicts Between Statutes of Limitation, 27 Hastings LJ 1, 25-45.)

New York’s version of the borrowing statute, CPLR 202, provides: "An action based upon a cause of action accruing without the state cannot be commenced after the expiration of the time limited by the laws of either the state or the place without the state where the cause of action accrued, except that where the cause of action accrued in favor of a resident of the state the time limited by the laws of the state shall apply.” (Emphasis added.) Critical to the application of the borrowing statute is the determination of the jurisdiction in which a cause of action "accrues”. Before this determination can be made, however, it is necessary to characterize correctly the plaintiffs cause of action. Although denominated as a breach of warranty cause of action, plaintiffs claim in this case, in addition to his negligence claim, is in reality one in strict products liability. (See Victorson v Bock Laundry Mach. Co., 37 NY2d 395, 401-402.) Consequently, it is the jurisdiction in which plaintiffs strict products liability causes of action, as well as negligence causes of action, accrued that must be ascertained for purposes of applying the borrowing statute.

In reaching this conclusion, we observe that a cause of action for breach of warranty is a contractual remedy—a remedy which seeks to provide the parties with the benefit of their bargain. It is, in essence, a remedy designed to enforce the agreement, express or implied, of the parties and to place them, should one of the parties fail to perform in accordance with the agreement, in the same position they would have been had the agreement been performed. (See Victorson v Bock Laundry Mach. Co., 37 NY2d 395, 401, supra; Wade, Is Section 402A of the Second Restatement of Torts Preempted by the UCC and Therefore Unconstitutional, 42 Tenn L Rev 123, 127.)

On the other hand, a cause of action for negligence or for strict products liability seeks to provide a remedy for an individual injured because of another’s violation of an obligation imposed not by contract, but by law. It does not attempt to afford the injured party the benefit of any bargain, but rather endeavors to place him in the position he occupied prior to his injury. In other words, negligence and strict products liability causes of action seek to make the injured party "whole”. (See Victorson v Bock Laundry Mach. Co., 37 NY2d 395, 401, supra; Prosser, Torts [4th ed], § 92, p 613; Wade, Is Section 402A of the Second Restatement of Torts Preempted by the UCC and Therefore Unconstitutional, 42 Tenn L Rev 123, 127.)

Consequently, a plaintiff who is not in privity with the seller of the product which is alleged to have caused his injury possesses a cause of action in negligence or strict products liability as opposed to what has often been incorrectly labeled breach of warranty. In this regard, we have stated on a previous occasion: "Whatever may have been earlier doubt and confusion, the authorities are now in general agreement that strict products liability sounds in tort rather than in contract. 'It has been said over and over again that this warranty—if that is the name for it—is not the old sales warranty, it is not the warranty covered by the Uniform Sales Act or the Uniform Commercial Code. It is not a warranty of the seller to the buyer at all, but it is something separate and distinct which sounds in tort exclusively, and not at all in contract; which exists apart from any contract between the parties; and which makes for strict liability in tort.’ ” (Victor-son v Bock Laundry Mach. Co., 37 NY2d 395, 402, supra, quoting Prosser, Spectacular Change: Products Liability in General, 36 Cleveland Bar Assn J 167-168.)

The effect of the rule in the Victorson case (supra) and the analysis in this case is not to raise again the "citadel of privity”. On the contrary, the rule announced in that case and the analysis in the present case manifests the flowering in New York of the doctrine of strict products liability making unnecessary the distortions previously required to permit injured plaintiffs to recover from those who put defective products into the stream of commerce. The doctrine was presaged long before the Victorson case. (E.g., Goldberg v Kollsman Instrument Corp., 12 NY2d 432, 436-437; Codling v Paglia, 32 NY2d 330; Restatement, Torts 2d, § 402A.) It was followed in Micallef v Miehle Co. (39 NY2d 376). Removal of the distortions prevents the all but inconceivable result reached in Mendel v Pittsburgh Plate Glass Co. (25 NY2d 340), overruled in Victorson v Bock Laundry Mach. Co. (37 NY2d 395, supra)—a result that could follow if the breach of warranty action in this case is viewed as having accrued in New York before the plaintiff had been injured, and therefore before he had a cause of action. The point of all this is that strict products liability displaces the need for a "warranty” action by third parties. But if a third party chooses to sue in "warranty”, thus restricting the scope of the damages he may recover (cf. Sears, Roebuck & Co. v Enco Assoc., 43 NY2d 389), he may not nevertheless by asserting that the cause of action arose at the time of the manufacturer’s tender of delivery contend that his cause of action "accrued” before in fact it had.

Moreover, CPLR 202 antedates the latest development of strict products liability doctrine as it antedates the Uniform Commercial Code. When it speaks of "accrual” of a cause of action, it must logically refer to a cause of action upon which a lawsuit may be brought, even if damages could not be fully assessed until later. That plaintiff Martin could have sued defendants before he was employed on the Virginia project by his employer, let alone before he was injured, makes no sense in law or justice. If a true breach of warranty action accrued to him on the delivery f.o.b., New York of the defective forklift, he could have sued then and there in New York.

But assuming that plaintiff may sue in breach of warranty in contract, it still is true that his cause of action accrued only when he was injured in Virginia. To hold otherwise is to repeat the now overruled holding in Mendel v Pittsburgh Plate Glass Co. (25 NY2d 340, supra), a rule that would have barred a plaintiff’s cause of action before it ever came into existence.

The dissenters refer to section 2-318 of the Uniform Commercial Code as amended. They agree the critical amendment of that section was enacted after the operative events here and thus is inapplicable to the core issue in this case. We therefore view unnecessary further discussion of this section except to note the likelihood of disagreement as to its effect should a case arise in which its applicability may properly be considered.

In the present case, plaintiff, a resident of the District of Columbia, was injured in Virginia during the course of his employment. Defendants, the manufacturer (Raymond) and distributor (Dierck) of the allegedly malfunctioning forklift, both are corporations with their principal places of business in New York. No contract of sale, without more, made between plaintiff’s employer and the manufacturer and distributor of the forklift could create any liability to plaintiff. (See Victor-son v Bock Laundry Mach Co., 37 NY2d 395, 402-403, supra.) Plaintiff possessed no cause of action, in tort or in contract, any where in the world until he was injured in Virginia. (See Mendel v Pittsburgh Plate Glass Co., 25 NY2d 340, 348 [dissenting opn], overruled in Victorson v Bock Laundry Mach. Co., 37 NY2d 395, supra.)

Consequently, for purposes of the borrowing statute, CPLR 202, plaintiff’s causes of action in negligence and strict products liability accrued in Virginia, the place of the injury. Since Virginia would apply a two-year Statute of Limitations to plaintiff’s causes of action (see Caudill v Wise Rambler, 210 Va 11; Sides v Richard Mach. Works, 406 F2d 445; Tyler v Street & Co., 322 F Supp 541), we hold that they are untimely.

In barring plaintiffs causes of action, we observe that no expectation interest of the nonresident plaintiff is frustrated by application of the Virginia Statute of Limitations. Defendants and plaintiff’s employer, Western Electric, entered into the contract of sale for the forklift intending the vehicle to be used in Virginia. In fact, it was extensively used at Western Electric’s warehouse for a year prior to the accident. As the Appellate Division aptly observed: "The life’ of the forklift in [New York] was limited to a dormant and transitory interval between its manufacture and shipment to its ultimate destination in Arlington, Virginia.” (52 AD2d 463, 467.) On these facts, plaintiff cannot express surprise at the application of Virginia’s Statute of Limitations.

The question remains, however, whether Virginia’s Statute of Limitations was tolled because of the inability of plaintiff to secure jurisdiction over defendants in Virginia. In this regard, we find it unnecessary to decide whether defendants engaged in a "persistent course of conduct” or derived "substantial revenue from goods used or consumed or services rendered in [Virginia]”, thus rendering themselves amenable to jurisdiction under Virginia’s long-arm statute. (Va Code [1950], § 8-81.2.) Section 8-33 of the Virginia Code, the tolling provision applicable in the present case, provided for the tolling of the Statute of Limitations during the absence of a defendant from Virginia only if the defendant had resided in Virginia before the cause of action accrued against him. Since defendants were not residents of Virginia before plaintiff’s cause of action accrued against them, Virginia’s two-year Statute of Limitations could not have been tolled. Not having been residents prior to the accrual of plaintiff’s causes of action, defendants’ absence from Virginia is irrelevant. Consequently, plaintiff’s causes of action for negligence and strict products liability are untimely.

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

Gabrielli, J. (dissenting in part).

Although I am in accord with much of the majority’s discussion of CPLR 202, I cannot concur in the court’s dismissal of the plaintiff's independent cause of action for breach of warranty. Today’s decision raises anew the once toppled walls of the citadel of privity (see Codling v Paglia, 32 NY2d 330), and casts a shadow over that realm of the law which defines the right to recover for personal injuries caused by defective products; but the result reached is mandated neither by precedent, logic nor statute.

Due to a comparatively rapid rate of development, the body of law which deals with recovery for personal injuries caused by defective products comprises a seemingly complex, and perhaps somewhat inconsistent admixture of both common law and statute. Much of the law in this area is a creature of judicial fiat rather than of legislative action, and has developed on a case-by-case basis as a matter of common law. Until fairly recently, the absence of privity precluded recovery without proof of negligence (see Turner v Edison Stor. Battery Co, 248 NY 73). In an increasing number of decisions, beginning with Greenberg v Lorenz (9 NY2d 195), the court began to weaken the walls of the citadel. That process culminated n our decision in Codling wherein we held that "under a doctrine of strict products liability, the manufacturer of a defective product is liable to any person injured or damaged if the defect was a substantial factor in bringing about his injury or damages” (32 NY2d, at p 342). Subsequently, in Victorson v Bock Laundry Mach. Co. (37 NY2d 395), we held that an action in strict products liability sounds in tort rather than in contract, and consequently found the tort limitations period and accrual principles applicable to such actions.

Today this court in effect holds that no cause of action for breach of warranty can lie in favor of a person not in privity with the seller. Implicit in this holding is the rationale that since such a person may now have a cause of action for strict products liability, it is no longer necessary to afford him an action for breach of warranty as well. Whether the converse will also be true, and a person who is in privity of contract be foreclosed from bringing an action in strict products liability (see De Crosta v Reynolds Constr. & Supply Co., 49 AD2d 476, affd on other grounds 41 NY2d 1100), or whether such a person will be subject to the torts Statute of Limitations in any action to recover for personal injury, appear to remain open questions (see, generally, Victorson, supra, at pp 407-408 [concurring opn]). Although there is a certain elegant simplicity to the majority’s approach, that alone appears insufficient reason to reconstruct the privity barrier and thereby foreclose recovery by those individuals whose claims are barred by the tort, but not by the contract limitations period.

Neither Victorson nor any of our other holdings require this result. Indeed, in Victorson we explicitly recognized the continuing validity of a separate cause of action based upon a breach of warranty: "Preliminarily we observe as a matter of analysis that, while one seeking to recover from a manufacturer for injuries sustained in consequence of an alleged defect in its product may be said to have but a single claim, that claim may be grounded in one or more of four causes of action or theories of liability. Depending on the factual context in which the claim arises, the injured plaintiff, and those asserting derivative claims, may state a cause of action in contract, express or implied, on the ground of negligence, or, as here, on the theory of strict products liability. In these cases now before us we are concerned only with claims based on the last theory. What we say here, therefore, should not be understood as in any way referring to the liability of a manufacturer of a defective product under familiar but different doctrines of the law of contracts for injuries sustained by a customer or other person with whom or for whose benefit the manufacturer previously has made a warranty or other agreement, express or implied. As indicated, it may be open to a particular plaintiff to base his case on contract liability or negligence or strict products liability, or on some combination thereof’ (37 NY2d, at p 400). Subsequently, in Micallef v Miehle Co. (39 NY2d 376, 382), we again noted the existence of a separate cause of action for breach of warranty accruing in favor of a person not in privity with the seller. Similarly, other courts and various commentators have consistently interpreted our decisions in Victorson and Codling as affording an injured party not in privity with the seller, the vehicle of a cause of action in either negligence, strict products liability, breach of warranty, or some combination thereof, depending on the facts of the particular case (see, e.g., Ribley v Harsco Corp., 57 AD2d 234; Murphy v General Motors Corp., 55 AD2d 486; Powell v Gates-Chili Cent. School Dist., 50 AD2d 1079, 1080; Survey of NY Practice, 50 St John’s L Rev 181; see, also, Potsdam Welding & Mach. Co. v Neptune Microñoc, 57 AD2d 993).

It is clear then, that nowhere have we held that a party not in privity is bereft or deprived of a cause of action for breach of warranty. This does not mean, of course, that we could not so hold now, were the question one of common law alone: Since our decision in Victorson, however, the Legislature has amended section 2-318 of the Uniform Commercial Code (L 1975, ch 744), which now provides as follows: "§ 2-318. Third Party Beneficiaries of Warranties Express or Implied. A seller’s warranty whether express or implied extends to any natural person if it is reasonable to expect that such person may use, consume or be affected by the goods and who is injured in person by breach of the warranty. A seller may not exclude or limit the operation of this section.” The language of the statute is clear, precise and unambiguous; its import is plain. It provides that any natural person who may reasonably be expected to "use, consume or be affected by the goods” shall be a third-party beneficiary to any warranties created by the sale, be they express or implied, and be they entered into voluntarily or imposed by operation of law. As a third-party beneficiary, anyone who falls within the protected class may, of course, bring a direct action for breach of warranty against the seller (see Uniform Commercial Code, § 2-318, comment 2; § 2-318, New York Annotations). Such a cause of action is independent of the strict products liability cause of action which we recognized in Codling and characterized as tortious in Victorson; it is instead a contractual remedy created solely by the provisions of the Uniform Commercial Code and the terms of the contract between the buyer and the seller (see Donnelly & Donnelly, Commercial Law, 27 Syracuse L Rev 277, 279). As such, it is appropriate that it be governed by the limitations period and accrual rules prescribed in section 2-725 of the Uniform Commercial Code. Although section 2-318 of the Uniform Commercial Code is not specifically applicable to this case since the cause of action accrued prior to the effective date of the amendment, I would nonetheless apply the principles inherent in the statute, and especially its obvious purpose of removing the privity barrier. It would seem rather incongruous at this late date for this court to act to reconstruct those very barriers which we have previously dismantled (see, e.g., Codling v Paglia, 32 NY2d 330, supra), and at a time when the Legislature has enunciated public policy and has so plainly indicated its approval of the direction of our earlier decisions.

Although section 2-725 does not speak directly to the situs of a cause of action for breach of warranty, it does provide that a cause of action such as this accrues at the time of tender of delivery. This being so, it would appear to follow logically that such an action would also accrue at the place of tender of delivery (see Myers v Dunlop Tire & Rubber Corp., 40 AD2d 599), which in this case was New York; and I do not think that this conclusion should change simply because the damages sought to be recovered are the result of personal injuries rather than the more traditional contract damages, for the code itself specifically allows recovery for personal injuries as consequential damages for breach* of contract or warranty (Uniform Commercial Code, § 2-715). Regardless of the nature of the damages sought to be recovered, the basis for liability is the sale of a defective product, and it is at the time of delivery of that product that the cause of action for breach of warranty accrues even though the defect may not reveal itself and the consequential damages be created until years later. There is no longer any need to strain to avoid this result in breach of warranty cases involving personal injuries, for our recognition of an independent action based on strict products liability and accruing as of the date of the injury serves to prevent the injustice which might possibly otherwise result from such a rule.

The majority of the court today apparently disregards the fact that by amending section 2-318 the Legislature has in large part eliminated the privity barrier to a traditional breach of warranty action on behalf of an injured person who is not a direct party to the sales contract; and apparently finds no inconsistency between this legislative death blow to privity and today’s decision to resurrect that concept. I cannot agree. The effect of the statutory scheme is clear: section 2-318 delineates the class of individuals in whose favor warranties run, and that class certainly includes this plaintiff. To determine when and where his cause of action for breach of warranty accrued, as distinguished from his cause of action based in strict products liability, one need only turn to that section of the code we have already discussed which deals with accrual, to wit, section 2-725.

For the reasons stated above, I would hold that the plaintiff has stated a cause of action for breach of warranty, that this cause of action accrued in New York, and that thus the borrowing statute (CPLR 202) is not applicable; rather the four-year Statute of Limitations provided in section 2-725 of the Uniform Commercial Code is applicable and the action was timely brought.

Therefore, the order of the Appellate Division should be modified accordingly, and the case remitted to Supreme Court for trial with respect to the breach of warranty cause of action.

Chief Judge Breitel and Judges Jones and Wachtler concur with Judge Jasen; Judge Gabrielli dissents in part and votes to modify in a separate opinion in which Judges Fuchsberg and Cooke concur.

Order affirmed, with costs.

       Virginia’s present tolling provision, section 8.01-229, no longer requires a defendant’s residency in Virginia before accrual of a cause of action to toll the Statute of Limitations during a defendant’s absence from Virginia. (1977 Va Acts, ch 617, eff Oct. 1, 1977.)