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

text:
    Sidney Stone, Appellant, v. Mark Goodson et al., Doing Business as Goodson-Todman Productions, Respondents.
    Argued March 31, 1960;
    decided April 28, 1960.

      Otis Mark Waters for appellant.
    I. A question of first impression is presented. II. When both works are presented for comparison, the court has before it all the data necessary to decide the question of user. (Park v. Warner Bros., 8 F. Supp. 37.) III. The two productions■ constitute “the only evidence of similarity which could possibly be offered.” (Weitzenkorn v. Lesser, 40 Cal. 2d 778.) IV. Summary judgment is available “in any action”. (Felberose Holding Corp. v. New York R. T. Corp., 244 App. Div. 427; Tracy v. Danzinger, 249 App. Div. 46; Pross v. Foundation Props., 158 Misc. 304; Lederer v. Wise Shoe Co., 276 N. Y. 459.) V. Deciding the question of user on motion for summary judgment is not only proper and desirable, but customary. (Weitzenkorn v. Lesser, 40 Cal. 2d 778; Park v. Warner Bros., 8 F. Supp. 37; Lowenfels v. Nathan, 2 F. Supp. 73; Cohen v. Eleven West 42nd St., 115 F. 2d 531; Christianson v. West Pub. Co., 53 F. Supp. 454; Lewis v. Kroger, 109 F. Supp. 484; Ornstein v. Paramount Prods., 9 F. Supp. 896; Wiren v. Shubert Theatre Corp., 5 F. Supp. 358, 70 F. 2d 1023; Hammond & Co. v. International College Globe, 146 F. Supp. 514; Harms v. Woolworth Co., 163 F. Supp. 484; Home Art v. Glensder Textile Corp., 81 F. Supp. 551; Harms v. Tops Music Enterprises, 160 F. Supp. 77.) VI. Confiding to a jury the construction of the legal obligation of a written agreement is an abdication of the court’s function and constitutes reversible error. (Brady v. Cassidy, 104 N. Y. 147; Brainard v. New York Cent. R. R. Co., 242 N. Y. 125; Hartigan v. Casualty Co. of America, 227 N. Y. 175; City Bank Farmers Trust Co. v. Ernst, 263 N. Y. 342; Heller & Henretig v. 3620-168th St., 302 N. Y. 326; Bonime v. Cummings, 5 A D 2d 976; Cadman Mem. Cong. Soc. of Brooklyn v. Kenyon, 197 Misc. 124, 279 App. Div. 1015, 306 N. Y. 151; Bethlehem Steel Co. v. Turner Constr. Co., 2 N Y 2d 456.)

      Milton Pollack, Warren S. Tenney, Samuel N. Greenspoon and Francis E. Koch for respondents.
    I. As a matter of law, defendants are not liable on their contract. Defendants have not used plaintiff’s “ ideas, format and other literary material.” (Kennedy v. Rolfe, 174 App. Div. 10; Dymow v. Bolton, 11 F. 2d 690; Burtis v. Universal Pictures Co., 40 Cal. 2d 853; Cain v. Universal Pictures Co., 47 F. Supp. 1013; Nichols v. Universal Pictures Corp., 45 F. 2d 119; Harris v. Fawcett Pub., 176 F. Supp. 390; Park v. Warner Bros., 8 F. Supp. 37; Hewitt v. Coward, 180 Misc. 1065, 266 App. Div. 992; Heywood v. Jericho Co., 193 Misc. 905; Lowenfels v. Nathan, 2 F. Supp. 73; Sheldon v. Metro-Goldwyn Pictures Corp., 81 F. 2d 49, 298 U. S. 669.) II. Plaintiff has not established the originality of his submission. (Soule v. Bon Ami Co., 201 App. Div. 794, 235 N. Y. 609; Shapiro v. Press Pub. Co., 235 App. Div. 698; Lueddecke v. Chevrolet Motor Co., 70 F. 2d 345; Masline v. New York, N. H. & H. R. R. Co., 95 Conn. 702.) III. Plaintiff is bound by his agreement to allow defendants to determine questions of originality and use. (Goltra v. Weeks, 271 U. S. 536; Wynkoop Hallenbeck Crawford Co. v. Western Union Tel. Co., 268 N. Y. 108; Trimble v. New York Life Ins. Co., 234 App. Div. 427; Burgess v. First Nat. Bank, 219 App. Div. 361; Champagne v. Powell Medicine Co., 48 App. Div. 344; McNevin v. Solvay Process Co., 32 App. Div. 610, 167 N. Y. 530; Reynolds v. Manhattan Athletic Club, 2 Misc. 581.) IV. As a matter of law, the issues must be tried if summary judgment is not awarded to defendants. (Harris v. Fawcett Pub., 176 F. Supp. 390.) V. Whether defendants’ program is based upon plaintiff’s " ideas, format and other literary material” is an issue for the jury. (Cole v. Phillips H. Lord, Inc., 262 App. Div. 116; La Varre v. Warner Bros. Pictures, 282 N. Y. 68; Desny v. Wilder, 46 Cal. 2d 715.) VI. The originality of plaintiff’s “ideas, format and other literary material” is an issue for the jury. (Cole v. Phillips H. Lord, Inc., 262 App. Div. 116; Healey v. Macy & Co., 251 App. Div. 440, 277 N. Y. 681; Weitzenkorn v. Lesser, 40 Cal. 2d 778; Kurlan v. Columbia Broadcasting System, 40 Cal. 2d 799; Stanley v. Columbia Broadcasting System, 35 Cal. 2d 653; Kovacs v. Mutual Broadcasting System, 99 Cal. 2d 56; Utica Carting, Stor. & Contr. Co. v. World Fire & Mar. Ins. Co., 277 App. Div. 483, 278 App. Div. 629; National Electrotype Co. v. Pennie, 157 Misc. 26, 243 App. Div. 764; Brawer v. Mendelson Bros. Factors, 262 N. Y. 53; Utica City Nat. Bank v. Gunn, 222 N. Y. 204; Brondfield v. Paramount Pictures Corp., 200 Misc. 883.) VTI. The independent origin of defendants’ program is an issue for the jury. (Bernstein v.
      Kritzer, 224 App. Div. 387; Miner v. Reinhardt, 225 App. Div. 530; Healey v. Macy & Co., 251 App. Div. 440, 277 N. Y. 681; Bailey v. Haberle Congress Brewing Co., 193 Misc. 723; Hanna v. Mitchell, 202 App. Div. 504, 235 N. Y. 534; Connor v. Commercial Travelers Mut. Acc. Assn, of America, 247 App. Div. 352.) VIII. The first affirmative defense in the answer is an issue for the jury. IX. Expert testimony is required to resolve the factual issues involved in plaintiff’s claims. (Arnstein v. Porter, 154 F. 2d 464; Heim v. Universal Pictures Co., 154 F. 2d 480; B. M. Heede, Inc., v. Roberts, 303 N. Y. 385; Gumbinsky Bros. Co. v. Smalley, 203 App. Div. 661, 235 N. Y. 619; Cole v. Phillips H. Lord, Inc., 262 App. Div. 116.)
   Burke, J.

In this action for breach of a written contract the Appellate Division has reversed Special Term’s order granting summary judgment for the plaintiff and certified the following question—“ Was the order of this Court * * * properly made? ” We are of the opinion that a triable issue is presented, and, therefore, answer the question certified in the affirmative.

On December 7, 1953 plaintiff made a written submission of his proposed television series which he called “ The Price Is Right ”, and characterized as a “ Quiz Audience Participation ”. In this agreement the plaintiff stated that the idea was original with him but that he would abide by defendants’ ultimate determination of questions of use, priority, and originality in connection with any substantially similar idea. The agreement further stated that, if defendants find that the idea had priority and originality, payment for its use was to be negotiated.

On January 29, 1954 the parties entered into a written contract whereby plaintiff sold all his “ right title and interest in and to the ideas, format and other literary material heretofore submitted” in return for defendants’ promise to pay stipulated weekly royalties in the event of its ultimate use. Except for a warranty of originality the plaintiff did not by this agreement abdicate his right to contest the question of use and priority. It is significant, therefore, that this agreement expressly stated that it was entire and complete and embodied all understandings between the parties.

Three years later (Nov. 1, 1956) the parties entered into the written agreement upon which this action is founded. By this covenant the defendants (for $1,000) purchased outright all rights in and to the title “ The Price Is Right ”. Although this sum was to be in lieu of any payment under the prior agreement, the defendants further stipulated that: “in the event that we should at any time broadcast programs based upon the ideas, format and other literary material heretofore submitted and sold by you to us (exclusive however of the title ‘ The Price Is Right ’ being sold by you to us hereunder), we agree to make payments to you in accordance with the terms and conditions of said prior written agreement.”

Approximately one month later the program “ The Price Is Right ’ ’, which plaintiff claims is a use of his submission, was broadcast by defendants.

The complaint alleges, inter alia, that both plaintiff’s submission and the defendants’ program have the same basic concept, i.e., the promotion of merchandise with a fixed standard retail price, and that, therefore, the program so produced by defendants was and is based upon the ideas, format and literary material previously submitted.

Upon the motion for summary judgment both the submission and the defendants’ script and program were before the court. Special Term found that “ [cjlearly the material submitted by the plaintiff and the defendants’ program utilize a gimmick ’ in relation to the presentation of merchandise which differentiates both from every other quiz or merchandising show and that is the standard of fixed retail price.” The court found further that although there are differences in the programs ‘ ‘ they produce no real distinction in idea or combination. ’ ’ Finding, therefore, that plaintiff’s submission was “substantially lifted ” the court granted summary judgment.

The Appellate Division reversed upon a finding that issues of fact exist (1) as to whether the defendants undertook to pay for the use merely of the central idea of the plaintiff’s submission, or whether they were to pay only for the use of the ideas, format and literary material as embraced in the submission, and (2) in either event whether or not there was a user of such.

Once again we are faced with the propriety of the granting of summary judgment, and our sole inquiry, therefore, is to the existence of a material issue of fact. It now seems well established that if the issue is fairly debatable a motion for summary judgment must be denied (Falk v. Goodman, 7 N Y 2d 87, 91; Sillman v. Twentieth Century-Fox Film Corp., 3 N Y 2d 395, 404).

However, we believe the Appellate Division was wrong in making its first finding (supra), i.e., that an issue of fact exists as to whether the agreement was to pay only for the central idea or merely for the material as presented. In our opinion it would be a perverse construction that would allow the defendants to substantially pirate the fruits of the plaintiff’s creation merely by rearranging its organization and main theme. It surely could not have been within the contemplation of the parties to allow remuneration solely upon a literal use of the submission. No matter how ambiguous the intention of the parties may have been prior to November 1, 1956, it was certainly dispelled by the agreement entered into that day. It provided in simple and unequivocal terms that the plaintiff would be paid if defendants at any time broadcast programs based upon the ideas, format and other literary material submitted. Since the construction of an unambiguous written contract is a question of law for the court (Lachs v. Fidelity & Cas. Co., 306 N. Y. 357; Bethlehem Steel Co. v. Turner Constr. Co., 2 N Y 2d 456; Bonime v. Cummings, 5 A D 2d 976, 977), it was, therefore, proper for Special Term to so construe the agreement.

We disagree, however, with the Special Term determination of the question of user with which we will now deal. A reading of the entire record convinces us that the question of user does raise a triable issue of fact. Although in an action for the appropriation of literary material this question may be raised (by either party) on a motion for summary judgment (Rules Civ. Prac., rule 113), this is not to say that there must- necessarily be a final determination simply because both scripts are before the court. Of course, if the similarity or dissimilarity is so overwhelming, the matter may be disposed of summarily. However, this literal-or-no-application is not the test ordinarily adaptable. Quite often the plagiarism, if any, is deftly disguised, or not substantial, and, therefore, not necessarily revealed or found illusory on what might seem to be a perusal examination on the motion for summary judgment. Each case must, under these circumstances, be taken in conjunction with its peculiar set of facts (Fendler v. Morosco, 253 N. Y. 281, 292).

Although the mere presence of dissimilarities need not bar a summary disposition, we cannot agree that they were here insignificant as a matter of law. It will be apparent from the following synopsis of both scripts that the issue, if not seriously questionable, is at least arguable.

Defendants’ Program

An article of merchandise, the retail price of which is not revealed, is exhibited to a panel of four contestants, who, in an effort to estimate the price, proceed to bid for the item. At the conclusion of the bidding the retail price is made known. The article is then awarded to the contestant who comes closest, however, without exceeding the retail price. This procedure is thereafter repeated, and at the conclusion of the program the contestant who has accumulated the most (dollar wise) is invited to participate on the next program. An added attraction for the benefit of the home viewing audience is the “ Showcase ” contest, wherein a multitude of articles are displayed. The mail order participant who comes closest, without exceeding, the total value of all items displayed receives all the merchandise without charge.

Plaintiff’s Submission

A sole participant selects an item from a group of articles displayed at retail price. The master of ceremonies then asks four questions and, each time a correct answer is given, the price is automatically reduced to half. For example, if the four questions are answered correctly, a $200 item is reduced to $12.50. The participant may purchase the article at any stage of the questioning, and the money received is, at the show’s conclusion, donated to a charity. This procedure is repeated with two subsequent contestants. The fourth contestant is a representative of a charitable organization. He, too, is asked four questions, but, instead of receiving merchandise at a reduced price, a special jackpot is multiplied by two with each correct answer.

In order to demonstrate that defendants’ program is based on plaintiff’s submission, the plaintiff’s moving papers argue the substantial similarities, the most significant of which is that the essential ingredient ” or central theme ” of both is the use of retail price. In addition the plaintiff advances the defendants’ admission that the program so broadcast was the ‘ ‘ first show we had where the retail price was the central theme ”.

On the other hand the defendant Goodson, an alleged expert on audience participation programs, averred that there was no substantial similarity between the two programs ’ ’. He analyzed and emphasized the differences, and stated that, rather than fixed retail price, the central theme of plaintiff’s work “ is that of a quiz program in which merchandise is used as a ‘ gimmick ’ to differentiate the program from every other quiz program on the air ”.

In addition the defendants submitted an affidavit executed by the producer and alleged originator of defendants’ program. He certified that he created this program under its original title “ Auctionaire ”.

We are inclined to opine that plaintiff’s theme, masked in dissimilarities, was “ substantially lifted ”. However, although we agree that “ no plagiarist can excuse the wrong by showing how much of his work he did not pirate ’ ’, it cannot be said that the differences here do not at least raise an issue for the jury. We are constrained, therefore, to affirm the order denying summary judgment.

Accordingly, the order of the Appellate Division should be affirmed, with costs, and the question certified answered in the affirmative.

Van Voorhis, J. (concurring).

I concur in the result. Respondents bought and paid for the title, “ The Price Is Right.” Any reasonable use of this title on TV commercials would normally involve the pricing or the transfer of merchandise as a bonus or at bargain prices. Appellant has no monopoly on the donation of merchandise prizes. Doing any one or more of those things would not constitute an appropriation of appellant’s “ideas, format and other literary material” so as to render respondents liable to make payments to appellant under the earlier agreement. The Appellate Division has held that there is a triable issue concerning whether respondents did more than they were entitled to do in making use of this title which they bought. Respondents have not appealed. Appellant is clearly not entitled to summary judgment.

Judges Dye ‘and Foster concur with Judge Burke ; Judge Van Yoorhis concurs in result in a separate memorandum; Chief Judge Desmond and Judges Fuld and Froessel dissent and vote to reverse and to grant summary judgment in favor of plaintiff with this memorandum: There is no triable issue presented. The record unequivocally established that the defendants’ show, “ The Price Is Right ”, is based upon and constitutes the use of the plaintiff’s submission to the defendants of his proposed television program.

Order affirmed, etc.


source: Caselaw Access Project

author: Fuld, J.

license: Public Domain

text:
    In the Matter of George Brennan et al., Respondents, against Carl J. Rubino et al., Constituting the Waterfront Commission of New York Harbor, Appellants.
    Argued March 22, 1960;
    decided April 28, 1960.

      Harold X. McGowan, William P. Sirignano, Irving Malchman, Jerome J. Klied and Leon Schneider for appellants.
    I. The modification by the Appellate Division of the commission’s order was improper since the commission’s- proceeding was to determine whether to grant or deny applications for checker registration and the denial thereof was not a " measure of punishment, penalty or discipline ” within the purview of subdivision 5-a of section 1296 of the Civil Practice Act. (Matter of Barsky v. Board of Regents, 305 N. Y. 89; Matter of Sagos v. O’Connell, 301 N. Y. 212; Matter of Migliaccio v. O’Neill, 277 App. Div. 1093; Matter of Wager v. State Liq. Auth., 4 N Y 2d 465; Matter of Sunland Beverage Corp. v. Rohan, 7 A D 2d 744; Matter of Bob’s Corked Liqs. v. New York State Liq. Auth., 3 A D 2d 1010, 3 N Y 2d 707, 4 N Y 2d 701.) II. The commission’s determination denying the applications for checker registration and revoking the temporary checker registrations was entirely proper in the light of its findings which were unanimously sustained by the Appellate Division. (Matter of Stolz v. Board of Regents of Univ. of State of N. Y., 4 A D 2d 361; Matter of Payton v. New York City Tr. Auth., 8 A D 2d 602; Matter of McGinnis’ Broadway Restaurant v. Rohan, 6 A D 2d 115; Matter of Piper v. Lubin, 4 A D 2d 812; Matter of Bancroft v. Usher, 4 A D 2d 808.) III. No “ labor-management dispute ” existed and, in any event, the existence of any such dispute would not justify petitioners-respondents ’ misconduct. (People v. Kaplan, 262 N. Y. 507; Matter of Dolowich, 246 App. Div. 209; Busch Jewelry Co. v. United Retail Employees’ Union, 281 N. Y. 150; Exchange Bakery & Restaurant v. Rifkin, 245 N. Y. 260; Matter of Appell v. Waterfront Comm. of N. Y. Harbor, 5 A D 2d 767; Matter of Blake v. Waterfront Comm. of N. Y. Harbor, 5 A D 2d 767, 5 N Y 2d 706.) IV. Petitioners-respondents ’ other contentions as to the findings and determinations of the commission are also without merit.

      Carl W. Sarett for respondents.
    I. There was no evidence of any preconceived plan or strategy by petitioners. II. If the courts look to the purposes of the act and the sections surrounding article VIII of part I (subd. 3, par. [c]) in order to render it constitutional, the Waterfront Commission cannot construe “ danger to public peace and safety” in any manner it wishes, but must limit and define those words as indicated by ‘ ‘ the purposes of the Act and the context in which the clause appears ”. III. An appellate court can, and should, correct administrative abuses. (Matter of McCall Corp. v. Gerosa, 2 A D 2d 358; Matter of Kopec v. Buffalo Brake Beam-Acme Steel Malleable Iron Works, 304 N. Y. 65; New York State Labor Relations Bd. v. Shattuck Co., 260 App. Div. 315; Matter of Standard Food Prods. Corp. v. O’Connell, 296 N. Y. 52; Matter of Wignall v. Fletcher, 278 App. Div. 28, 303 N. Y. 435; Matter of Katz v. Moss, 184 Misc. 133.) IV. The measure of punishment or discipline imposed is “so disproportionate to the offense, in the light of all the circumstances as to be shocking to one’s sense of fairness ” and shocks the sense of justice of the court. (Matter of Stole v. Board of Regents of Univ. of State of N. Y., 4 A D 2d 361; Matter of Nagin, 6 A D 2d 677; Matter of Zebley v. Lubin, 7 A D 2d 965; Matter of Nimelman, 5 A D 2d 984; Matter of Stanwood United v. O’Connell, 282 App. Div. 1045, 306 N. Y. 749; Matter of Friedman v. O’Connell, 5 A D 2d 858; Matter of Tripple Inn v. Kennedy, 3 A D 2d 907; Matter of Rodriguez, 3 A D 2d 648; Matter of Faulisi v. Board of Police Comrs. of City of Corning, 1 A D 2d 763; Flagg v. Nichols, 307 N. Y. 96; Maloney v. Hearst Hotels Corp., 274 N. Y. 106.)
   Fuld, J.

The four Brennan brothers, George, Harold, John and William, instituted this article 78 proceeding in August of 1958 to obtain judicial review of a determination made by the Waterfront Commission, after a hearing, which (1) denied applications by each of them for inclusion in the Longshoremen’s Register as checkers; (2) revoked their temporary registrations as such checkers; and (3) removed each of them from the Longshoremen’s Register as longshoremen, with leave to reapply immediately for registration as longshoremen. The petitioners and their father •—not a petitioner herein—were employed for many years before the present proceeding was instituted by the Bay Ridge Operating Company at Pier 4, Bush Terminal, Brooklyn. The father, Michael, is hiring agent and dock boss in charge of checkers; George was a checker and, in addition, a union shop steward for clerks and checkers on Pier 4; Harold was an assistant dock boss and, after May, 1957, a dock boss in charge of assigning work to checkers; and William was a checker.

Prior to the enactment of the Waterfront Commission Act in 1953, no license or permit was required to work on the docks either as a longshoreman or as a checker. The 1953 Act, however, required the Waterfront Commission to establish a longshoremen’s register” of all longshoremen eligible for employment in the Port of New York district (L. 1953, ch. 882, part I, art. VIII, subd. 1), and in 1957 the statute was amended to require the commission to “ establish within the longshoremen’s register a list of all qualified longshoremen eligible * * * for employment as checkers ” (§ 5-n, subd. 1, as added by L. 1957, ch. 188, § 6). The provision for the registration of checkers is very similar to that for the registration of longshoremen; both establish conditions of eligibility, set up a procedure for the filing of applications and permit the commission to issue temporary registrations pending final action on any such application. It should be ' noted, however, that the standard of eligibility as a checker is higher than that as a longshoreman, requiring as it does that the ‘ applicant possesses good character and integrity ” (§ 5-n, subd. 3, par. [2]).

Upon the enactment in 1957 of the provision relating to the registration of checkers, each of the Brennan brothers, already registered as a longshoreman, filed an application with the commission for registration as a checker and, in May of 1957, the commission issued temporary checker registrations to all four of them. Some months later, in October, 1957, in accordance with its usual practice, the commission initiated proceedings to determine whether (1) to grant their application as checkers, (2) to revoke or suspend their temporary checker registrations, and (3) to revoke or suspend their registration as longshoremen. Following the statutory procedure specified in the Waterfront Commission Act (part I, art. XI), the commission issued a notice of hearing, in which the petitioners were charged with specific acts of misconduct, and held a hearing before a hearing officer at which the petitioners Avere present, Avith counsel. After eight days of taking testimony, the hearing officer made findings which in every respect, except one, bore out the commission’s charges and, on his recommendation and findings, the commission issued the orders which are the subject of this article 78 proceeding.

In general terms, the commission’s notice of hearing charged that, in the period from December, 1953 to May, 1957, the Brennan brothers had “ combined and confederated Avith each other to unlawfully prevent other persons from exercising their lawful trade and doing lawful acts, by force, threats and intimidation, with a view to controlling the checking operations on Pier 4, Bush Terminal, Brooklyn, New York, and to compelling other persons to abstain from doing acts which such other persons had a lawful right to do and to coerce persons to do acts they had a right not to do, all in violation of Sections 580 and 530 of the Penal Law of the State of New York”. This general charge was substantiated by proof that on at least three occasions the Brennans had used force and threats of force and, on one occasion, a work stoppage to control the pier for their own interests and ends. Three office employees, Carlson, Little and Barrett, whose work required them to go on the pier occasionally, were each told by the Brennans, in profane and highly threatening language, for instance, to Stay off the dock. If you don’t, I will kill you and, in the case of one of these men, there was evidence that he was assaulted by one of the brothers while the others stood by repeating their angry warnings. In each case, the intimidation succeeded, and the men concerned did not thereafter go on the pier without the Brennans’ prior approval.

The other significant instance of the success of these tactics of force concerned the appointment of one of the brothers as the second dock boss, the other one being Brennan, Sr. Harold Brennan was appointed by Walker, the pier Superintendent, as the second dock boss after a work stoppage was called by George with the express purpose of gaining Harold’s appointment. This appointment was made despite the fact that Walker did not believe that another dock boss was required and despite the fact that, even if one were required, he did not think Harold should have been chosen.

Viewing the evidence as a whole, the Waterfront Commission was justified in concluding that the presence of each of the Brennan brothers at the piers "constitute [s] a danger to the public peace or safety” (Waterfront Commission Act, part I, art. VIII, subd. 3, par. [c]) and that they each lack "good character and integrity ” (§ 5-n, subd. 3, par. [a]). This being so, the commission’s determination as to both longshoreman and checker registration may not be successfully attacked.

Although the Appellate Division concluded that "a reasonable basis exists for the [commission’s] determination ”, the three-man majority, nevertheless, felt obliged to modify" so much of the determination as precludes petitioners forever from seeking inclusion in the Longshoremen’s Register as checkers [as] excessive punishment tantamount to an abuse of discretion ’ ’. The modification consisted of adding to the first and second paragraphs of the commission’s orders—relating to checker registration — a provision granting petitioners “leave to reapply for inclusion” in the register as checkers.

The first two paragraphs of the order made by the commission in this case direct

“That the applications of [the four Brennans] for inclusion in the Longshoremen’s Register as checkers be and they hereby are each denied; * * *
That the temporary registrations as checkers heretofore issued to [the four Brennans] be and they hereby are each revoked ’ ’.

To say that these two paragraphs preclude “petitioners forever from seeking inclusion in the Longshoremen’s Register as checkers ”, as the Appellate Division did, constitutes a misinterpretation not only of the terms of the order, but also of the commission’s power under the statute (part I, art. XI, subd. 6).

As we read them, neither the first nor second paragraph of the order permanently bars the petitioners from seeking inclusion in the register as checkers. The first paragraph simply denied the applications, with no word at all as to future applications, while the second paragraph merely revoked the temporary registrations. The only paragraph of the commission’s order which directly related to the petitioners’ future rights was the third paragraph which “permanently removed [the petitioners] from the Longshoremen’s Register * * * with leave to reapply immediately for registration as longshoremen ” — and this paragraph was not modified by the Appellate Division. Our interpretation is borne out by the fact that, although the statute empowers the commission to “ remove [any registered checker] from the longshoremen’s register as a checker for such period of time as it deems in the public interest ” (§ 5-n, subd. 5), the commission’s power on the determination of an application is expressly limited by the following statutory language: ‘ ‘ The action in the case of an application for a license or registration shall be the granting or denial thereof ’ ’ (part. I, art. XI, subd. 6). In other words, the commission is empowered to revoke a license already outstanding for a specified period or permanently—as it did in the third paragraph of its determination—but it is empowered only to grant or to deny applications, and this is, in fact, all it did in the case of the checker registration applications. Thus, no inference as to the possibility of a future application as a checker may be drawn from the fact that longshoremen registration was ‘ ‘ permanently removed * * * with leave to reapply immediately”, while checker registration was simply denied.

Nor was there warrant for the Appellate Division’s modification of the second paragraph of the commission’s order. Indeed, granting leave to the Brennans to reapply for temporary registration as checkers is proscribed by the Waterfront Commission Act, for, the statute explicitly recites, the commission is empowered to grant a temporary registration as a checker only pending final action on an application * * * for a period * * * not in excess of six months ” (§ 5-n, subd. 4). In view of the fact that final action on the application had been taken, and in view of the further fact that, in any event, six months had passed since the Brennans’ temporary registration had been granted, the commission was required by statute to revoke the temporary registration. A modification granting leave to reapply for such temporary registration is, therefore, beyond the law.

Thus, the Waterfront Commission’s determination, and this construction reflects the commission’s own view, does not bar the Brennans from reapplying for registration as checkers and, insofar as the Appellate Division modification was designed to give them this right, it was unnecessary. It is to be noted, however, that any future application by the Brennans will be governed by section 1.13 of the commission’s regulations which prescribes that, ‘ ‘ After an application or petition has been denied * * * no further application therefor may be submitted except upon leave of the commission for good reason shown”. (N. T. Off. Comp, of Codes, Rules & Regulations [12th Off. Supp., 1959], p. 1106.) If the modification of the commission’s order was intended to circumvent the requirement that reapplication may be made solely ‘ ‘ upon leave of the commission for good cause shown ”, it represents an unwise and unjustified interference with the broad rule-making power vested in the commission by the Legislature (Waterfront Commission Act, part I, art. IV, subd. 7).

In sum, then, the commission had the power under the Waterfront Commission Act but to grant or deny an application for checker registration, and the first paragraph of its order is in fact an order of denial, not one prohibiting future applications. And, as to the second paragraph of its order revoking the Brennans’ temporary checker registrations, the commission simply directed what the statute mandated. It follows, therefore, that the Appellate Division’s modification was not permissible.

The Appellate Division order, insofar as it modified the determination of the Waterfront Commission, should be reversed, without costs, and the determination of the commission confirmed and reinstated.

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

Order of Appellate Division reversed, without costs, and the determination of the Waterfront Commission reinstated.

      . A checker, as defined in the Waterfront Commission Act (L. 1953, eh. 882, § 5-a, snbd. [5], as amd. by L. 1957, eh. 188, § 1), is “a longshoreman who is employed to engage in direct and immediate checking of waterborne freight or of the custodial accounting therefor or in the recording or tabulation of the hours worked at piers or other waterfront terminals by natural persons employed by carriers of freight by water or stevedores.”


author: Burke, J.

text:
    In the Matter of the Estate of Mary E. Jones, Deceased. Theodore B. Klapper, as Administrator C. T. A. of the Estate of Mary E. Jones, Deceased, et al., Appellants; John A. Wicks, Respondent.
    Argued March 29, 1960;
    decided April 28, 1960.

      Jack Korshin, Lewis F. X. Cotignola and Seymour J. Reisman for Theodore Klapper and others, appellants.
    I. The Appellate Division decided the case on an issue not presented by the parties, not litigated before the Surrogate, and on a theory disclaimed by respondent at the hearing before the Surrogate. (Frear v. Sweet, 118 N. Y. 454; Wright v. Delafield, 25 N. Y. 266; Matter of Fitzsimons, 174 N. Y. 15; Southwick v. First Nat. Bank of Memphis, 84 N. Y. 420; Gordon v. Ellenville & Kingston R. R. Co., 195 N. Y. 137; Svenson v. Svenson, 178 N. Y. 54; Matter of City of New York [Allen St.], 256 N. Y. 236.) II. The direction of the Appellate Division that the property be sold to Wicks, contrary to the agreement of its owners to sell it to Miltod, constitutes an unlawful, unconstitutional taking of appellants’ property. (Embury v. Conner, 3 N. Y. 511; Powers
      v. Bergen, 6 N. Y. 358; Wynehamer v. People, 13 N. Y. 378; Brevoort v. Grace, 53 N. Y. 245; New York & O. M. R. R. Co. v. Van Horn, 57 N. Y. 473.) III. The order of the Appellate Division is an improvident exercise of its discretion, which this court has power to, and should, correct. (Nelson v. Hirsch, 264 N. Y. 316; Stokes v. Foote, 172 N. Y. 327; Silberstein v. Silberstein, 218 N. Y. 525; Donahue v. New York Life Ins. Co., 259 N. Y. 98; Karameros v. Luther, 279 N. Y. 87; Erie R. R. Co. v. International Ry. Co., 209 App. Div. 380, 239 N. Y. 598.)

      Maxwell Ross, appellant in person, and for Rosalie G-. Jones, appellant. I. The question of whether appellant Ross was entitled to a commission in the event of a sale of the property to Wicks was not an issue tendered for decision and was not litigated before the Surrogate. (Wright v. Delafield, 25 N. Y. 266.) II. If the property is sold to Wicks, appellant Ross is entitled to a commission by the terms of the agreement of August 22,1958. His right to a commission has not been waived. (Sibbald v. Bethlehem Iron Co., 83 N. Y. 378; Goodman v. Marcol, Inc., 261 N. Y. 188.)

      Milton Pinkus for respondent. I. The courts below have not lost jurisdiction over the disposition of plot No. 6. The direction of the Appellate Division that it be sold to Wicks was properly made. (Matter of Ablett, 3 N Y 2d 261; Matter of Watson, 262 N. Y. 289; Matter of Haigh, 125 Misc. 365; Pray v. Hegeman, 98 N. Y. 351; Rogers v. Association for Help of Retarded Children, 308 N. Y. 126.) II. The Appellate Division did not inject a new issue into the case. The best interest of the estate is always a concern of the court, particularly in a proceeding under section 215 of the Surrogate’s Court Act. III. Ross, acting strictly within the scope of his delegated authority, offered the property to respondent Wicks. The offer was accepted and a contract of sale resulted. (Ettlinger v. Weil, 94 App. Div. 291, 184 N. Y. 179; Stewart v. Gillett, 79 Misc. 93,171 App. Div. 967; Crabtree v. Elisabeth Arden Sales Corp., 305 N. Y. 48; Schubert v. Bowman, 9 Misc 2d 111.)
   Burke, J.

In this proceeding brought by the administrator pursuant to section 215 of the Surrogate’s Court Act seeking advice in connection with the sale of real property, the Appellate Division has modified the decree of the Surrogate by directing a sale of the property to the respondent Wicks. The court below held that, after giving effect to its finding of a waiver of a brokerage commission, the Wicks offer yielded a net price which is higher than an offer secured by the administrator from a Miltod Corporation and approved by the Surrogate.

The offers were submitted by the administrator and the attorney for the life tenant in accordance with an arrangement made by them in a written agreement. The agreement provided that the administrator, upon receipt of an offer to purchase the property which he determined was reasonable, would notify the attorney for the life tenant of the offer, and that the attorney for the life tenant would have seven days from the date of notice in which to procure a better offer. In the event that the attorney for the life tenant was successful in his efforts, the property would forthwith be sold to the offeror specified by the attorney for the life tenant. If the attorney for the life tenant was unable to obtain a better offer from a prospective purchaser, the property was to be sold to the offeror named in the notice given by the administrator. A commission of 5% was to be paid to the successful broker.

The appellants who favor the Miltod offer contend that the record unequivocally shows that the attorney for the life tenant who produced the Wicks offer did not waive a commission in the event of a sale to Wicks.

The conflicting interpretations of the testimony on the subject of the waiver of commission do not require discussion, as the issue can be resolved by the application of the familiar principles governing the acts of Surrogates and fiduciaries. A Surrogate must determine whether a sale is for the best interests of the estate (Surrogate’s Ot. Act, § 215). “It is the function of this court [Surrogate’s] to preserve and enhance, as far as possible, the assets of decedents ’ estates. * * * It is to the advantage of the estate that the * * * contract, calling for a higher price be performed.” (Matter of Graves, 197 Misc. 555, 557.) Where interested parties stand in a fiduciary relationship to the estate, added compensation for extra services is subjected to strict scrutiny. (Matter of Gerbereux, 148 Misc. 461, 467.)

In this case the Wicks offer yields the highest net price only if the administrator is allowed a brokerage commission and the attorney for the life tenant denied a commission.

But the agreement insofar as it attempted to grant individual rights to the administrator of the estate was void. An administrator is a fiduciary burdened with obligations requiring diligence in the supervision and direction of estate matters. He could not validly agree to limit the search for prospective purchasers. The agreement seeks not to obtain the best sale but rather limits the bidding to the best offer that the administrator or the attorney for the life tenant could produce. The administrator and the attorney for the life tenant placed themselves in a position that conflicted with the fiduciary duties they owed the beneficiaries of the estate. Where an actual conflict of interests exists, no more need be shown * * * to support a denial of compensation.” (Woods v. City Bank Co., 312 U. S. 262, 268; Matter of Welling, 51 App. Div. 355; cf. Bogert, Trusts and Trustees [2d ed., 1959], § 543, subd. [S], p. 573.) No dilution of, or encroachment upon, these standards is permissible.

The agreement, therefore, is ineffectual as an authorization for the payment of commissions to the administrator. If an administrator has acted properly, compensation for his efforts may be payable on an accounting (Lent v. Howard, 89 N. Y. 169, 179; Matter of Popp, 123 App. Div. 2; Surrogate’s Ct. Act, § 285; see, also, Matter of Schinasi, 277 N. Y. 252, 266) but an allowance of real estate commissions is unwarranted where an administrator limits a sale of the property to the efforts of his own concern and those of the attorney for the life tenant.

Since commissions are not payable to an administrator for a sale of property where the negotiations were so limited, the Surrogate should have directed the sale to Miltod free from commissions.

Accordingly, the order of the Appellate Division should be reversed and the matter remitted to the Surrogate’s Court, Nassau County, for further proceedings in accordance with the opinion herein, with costs to all parties appearing separately and filing separate briefs, payable out of the estate.

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

Order reversed, etc.


author: Van Voorhis, J.

text:
    In the Matter of 860 Fifth Avenue Corporation, Appellant, against Tax Commission of the City of New York, Respondent.
    Argued March 29, 1960;
    decided April 29, 1960.

      Alfred H. Hetkin and Harry L. Barshay for appellant.
    I. The land values found at Special Term were thoroughly sustained by a proper evaluation of the evidence of comparable sales and the prior decision of the Appellate Division. (Matter of Board of Water Supply of N. Y., 277 N. Y. 452; People ex rel. Fifth Ave.-68th St. Co. v. Miller, 271 App. Div. 923; People ex rel. MacCracken v. Miller, 291 N. Y. 55; People ex rel. Parklin Operating Corp. v. Miller, 287 N. Y. 126; People ex rel.
      Schlechter v. Lilly, 267 App. Div. 106; Matter of 5 East 71st St. v. Boyland, 7 N Y 2d 859; People ex rel. Hotel Paramount Corp. v. Chambers, 298 N. Y. 372; People ex rel. Pennsylvania, N. Y. & L. I. R. R. Co. v. O’Donnel, 130 App. Div. 734; Matter of Erlanger, 206 App. Div. 148, 237 N. Y. 159; People ex rel. Hilton v. Fahrenkopf, 279 N. Y. 49; Matter of City of New York [A. & W. Realty Corp.], 1 N Y 2d 428.) II. Special Term’s finding of building value was amply supported by the credible evidence of capitalized potential earnings. (Matter of Empire State Bldg. Corp. v. Boyland, 1 Misc 2d 518,1 A D 2d 770, 5 N Y 2d 715; Hall Realty Co. v. Moos, 200 App. Div. 66; People ex rel. Third Ave. R. R. Co. v. State Tax Comrs., 212 N. Y. 472; People ex rel. Manhattan Ry. Co. v. Woodbury, 203 N. Y. 231; People ex rel. Metropolitan St. Ry. Co. v. State Tax Comrs., 159 App. Div. 136, 212 N. Y. 606; Matter of Yonkers R. R. Co. v. Maltbie, 251 App. Div. 204; Lindheimer v. Illinois Tel. Co., 292 U. S. 151.)

      Charles H. Tenney, Corporation Counsel (Edith I. Spivack and Morris Handel of counsel), for respondent.
    Sales of the property under review at prices higher than the assessments, 27 other sales in the area also at prices over assessments, the actual cost of construction in 1949-1950, and the credible expert testimony indicating over-all returns of over 8% under ordinary commercial operation overwhelmingly support the Appellate Division’s reinstatement of the assessments. (People ex rel. Fifth Ave.-68th St. Co. v. Miller, 271 App. Div. 923.)
   Van Voorhis, J.

This tax certiorari appeal involves a 19-story and penthouse co-operative apartment building on Fifth Avenue, New York City, opposite Central Park, between East 67th and 68th Streets, constructed in 1949-1950. The Appellate Division reinstated the assessed valuation, which had been reduced by Special Term. The issue is primarily one of fact. We think that the assessed valuation more nearly corresponds to the true value.

The occasion for an opinion is to comment on the criticism by appellant of the receipt of evidence of the selling price in 1948 of the subject property to the promoters of the co-operative, and of the sales prices of parcels of comparable properties to promoters for other co-operative apartment houses. In Matter of 5 East 71st St. v. Boyland (7 N Y 2d 859, 860-861) the memorandum of affirmance stated: “In so deciding, we do not find that the Official Referee erred in refusing to give weight to the 1948 sale to the co-operative corporation or to the separate sales to its tenant purchasers. It is sufficient to say that evidence of the original cost of the land and building in 1946 plus evidence of the sharp increase in value since that time are enough to sustain the assessed valuations.” In that case the 1946 sale of the land was made to the promoters of a co-operative apartment house. The sale to the promoters was regarded as a more reliable index of value than the sale in 1948 by the promoters to the co-operative corporation which they had organized, or the subsequent transactions between the corporation and its tenant purchasers. This is not to say that sales by promoters to co-operative corporations, or by the latter to their tenants cannot ever be evidence of value under any circumstances. They have little if any probative force in a sale resulting from a markup in value by the promoters soon after purchase but before sale by them to the co-operative corporation.

Sales of land to the promoters themselves are more significant. Time was when evidence was excluded of sales of the subject property or of comparable properties for the reason that vendor or purchaser might have made a bad bargain (Matter of Thompson, 127 N. Y. 463, 468; Ettlinger v. Weil, 184 N. Y. 179). The selling prices of specific parcels could only be elicited on cross-examination of expert witnesses who had given opinion evidence of market value (Robinson v New York El. R. R. Co., 175 N. Y. 219). Actual sales do not reflect market value where made under stress, but it came to be realized that they furnish valuable evidence of market value if consummated between willing buyers and sellers under ordinary market conditions. Accordingly, Robinson v. New York El. R. R. Co. (supra) was overruled in Village of Lawrence v. Greenwood (300 N. Y. 231) which held that evidence of specific sales is admissible on direct examination under such conditions.

This land sale to the builder of the present co-operative apartment house is attacked as evidence of value on the theory that the sponsor of the co-operative bought it with scant regard to price, impelled by the prospective profit to be derived from sales of the co-operative apartments to prospective tenants after completion of the building. This reasoning is not convincing, inasmuch as the builder of the co-operative could have bought land anywhere if it were suitable to his purpose. If this parcel of land was located where it was especially suitable for the proposed new building, that was a circumstance which added to its market value. The builder of the co-operative was not compelled to buy it unless he chose to do so on account of the advantages of this location. If, as appellant contends, its location recommended itself for that purpose, that was a factor which added to its value and which might well be reflected in the assessed valuation. It is not to be expected that a prospective builder would pay more than necessary for the purchase of suitable land. The price of $1,503,000 to Secóles may have been affected in this instance by plans for a co-operative and arrangements for financing made by Minskoff. The $1,150,000 price to Minskoff contains no such possible infirmity as evidence.

The fact that these co-operative apartments were transferred to tenant owners at prices high enough to secure a profit to the promoters after defraying costs of land and building, indicates that the promoters’ capital was not wasted, and that the land and buildings were adapted to the site worth what they cost when they were acquired and constructed. Cost of new buildings or reproduction cost less depreciation establish maximum building value in assessment cases (People ex rel. Manhattan Sq. Beresford v. Sexton, 284 N. Y. 145; People ex rel. Parklin Operating Corp. v. Miller, 287 N. Y. 126, 130; People ex rel. Hotel Paramount Corp. v. Chambers, 298 N. Y. 372, 375; Matter of Semple School for Girls v. Boy-land, 308 N. Y. 382). It can have no other relevance unless the building would normally be reproduced at the time in question. One may regard that formula as supplying some evidence of value, however, where, as here, the building is well suited to the site. The actual construction cost in 1949-1950 was properly considered as a factor. The tax years now in litigation followed soon after the construction of this building, and both the assessors and Special Term found the same building value as well as the same land value during each of the tax years in suit.

The order appealed from should he affirmed, Avith costs.

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

Order affirmed.


text:
    The People of the State of New York, Respondent, v. Arnold Schildhaus, Appellant.
    Submitted March 28, 1960;
    decided May 19.1960.

      Harry H. Lipsig for appellant.
    I. The sustaining of the writ of habeas corpus by the Supreme Court is collateral estoppel by judgment of the precise question litigated, namely, the jurisdiction of the Magistrates’ Court as to the person of defendant and of the subject matter. (People ex rel. Hahn v. Haines, 1 A D 2d 263; People ex rel. Lawrence v. Brady, 56 N. Y. 182; People ex rel. Sabatino v. Jennings, 221 App. Div. 418, 246 N. Y. 624; People ex rel. Kipper v. Ellinger, 239 App. Div. 647; People ex rel. Pierce v. Howe, 218 App. Div. 273; People ex rel. Meyer v. Warden, 269 N. Y. 426; People ex rel. Bailey v. McCann, 222 App. Div. 465; People ex rel. Clark v. Keeper of N. Y. State Reformatory, 176 N. Y. 465; People ex rel. Wachowicz v. Martin, 293 N. Y. 361; People ex rel. Tweed v. Liscomb, 60 N. Y. 559; People ex rel. Battista v. Christian, 249 N. Y. 314; People ex rel. Stabile v. Warden of City Prison of City of N. Y., 202 N. Y. 138; People ex rel. Brinkman v. Barr, 248 N. Y. 126; People ex rel. Marcley v. Lawes, 254 N. Y. 249; Post v. Lyford, 285 App. Div. 101; Williams v. State of New York, 9 A D 2d 415.) II. The City Magistrates’ Court of the City of New York does not have jurisdiction to try an offense punishable by a maximum penalty of one year in jail and a $1,000 fine provided for violation of sections D26-3.1 and D26-3.2 of the New York City Multiple Dwelling Law. (Wynehamer v. People, 13 N. Y. 378; People ex rel. Cosgriff v. Craig, 195 N. Y. 190; Matter of Cooley v. Wilder, 234 App. Div. 256; People v. Lyon, 99 N. Y. 210; People v. Bellinger, 269 N. Y. 265; Matter of Wilson, 114 U. S. 417; People v. Kraft, 229 App. Div. 281.)

      Charles H. Tenney, Corporation Counsel (Irving Genn and Seymour B. Quel of counsel), for respondent.
    I. The Magistrates’ Court had jurisdiction over the person of defendant and the subject matter. It, therefore, had jurisdiction to hear and determine the case. (People v. Levine, 308 N. Y. 685; People v. James, 4 N Y 2d 482; People v. Scott, 3 N Y 2d 148; People v. Schildhaus, 17 Misc 2d 825; People v. Belcher, 302 N. Y. 529; People v. Hippie, 263 N. Y. 242; People v. Love, 306 N. Y. 18; People v. Cook, 8 N. Y. 67; United States v. Mallard, 40 F. 151; Atwood v. State, 146 Miss. 662; People v. Dileo, 194 App. Div. 793; People ex rel. Mertig v. Johnston, 186 Misc. 1041; People v. Hagan, 138 Misc. 771; Dodge v. Cornelius, 168 N. Y. 242; Matter of Cooley v. Wilder, 234 App. Div. 256; People v. Look-stein, 78 Misc. 306; People ex rel. Burke v. Fox, 205 N. Y. 490;
      People v. Grogan, 260 N. Y. 138; People ex rel. Gross v. Adams, 270 App. Div. 607, 296 N. Y. 604.) II. The Appellate Part of Special Sessions was not bound by the sustaining of a writ of habeas corpus by the Supreme Court, Bronx County. (People ex rel. Schildhaus v. Dros, 17 Misc 2d 398; People ex rel. Doyle v. Atwell, 232 N. Y. 96; People ex rel. Stolof v. Schleth, 252 App. Div. 784; People ex rel. Starks v. Batten, 49 Hun 606.) III. Defendant’s guilt was established beyond a reasonable doubt. (Lifschitz v. O’Brien, 143 App. Div. 180.) IV. The appeal is subject to dismissal without notice, having been brought on for argument more than 90 days after the date of the notice of appeal in disregard of section 536 of the Code of Criminal Procedure.
   Fuld, J.

The defendant was convicted, after a trial in the Magistrates’ Court of the City of New York, of violations of state and municipal dwelling laws and fined $500 or, in default, 30 days in prison. Electing not to pay the fine, the defendant surrendered and began his term of imprisonment. He subsequently sued out a writ of habeas corpus in the Supreme Court, Bronx County, challenging the jurisdiction of the Magistrates’ Court. The Supreme Court sustained the writ and directed the defendant’s discharge upon the ground that the information on which he had been prosecuted was jurisdictionally defective, that the Magistrates’ Court had been without jurisdiction to try him and that its judgment of conviction was consequently void (People ex rel. Schildhaus v. Dros, 17 Misc 2d 398).

The defendant’s appeal from the judgment of conviction, taken prior to the initiation of the habeas corpus proceeding, thereafter proceeded in the Appellate Part of the Court of Special Sessions and resulted in a judgment of affirmance. This appeal is from that judgment of affirmance. The People have not taken an appeal from the order sustaining the writ of habeas corpus, although, we understand, their time to do so has not yet expired.

Until it has been set aside or reversed, the order of the Supreme Court sustaining the writ of habeas corpus constitutes a final and binding determination that the judgment of conviction of the Magistrates’ Court was “ coram non judice arid void”. (People ex rel. Tweed v. Liscomb, 60 N. Y. 559, 571; see, also, Waterman v. State of New York, 2 N Y 2d 803; Nastasi v. State of New Yorh, 300 N. Y. 473; of. Mercein v. People, 25 Wend. 64, 99.) As long as that order stands, the judgment of conviction must be regarded as a nullity (see People ex rel. Battista v. Christian, 249 N. Y. 314, 321; People ex rel. Wachowicz v. Martin, 293 N. Y. 361, 365), even though the order itself may be erroneous. (See Linton v. Perry Knitting Co., 295 N. Y. 14,17; People ex rel. Bailey v. McCann, 222 App. Div. 465, 466.) In this posture of the record, the appeal taken from the judgment of conviction to the Appellate Part of Special Sessions was necessarily rendered academic and should have been so treated. (Cf. People ex rel. Stencil v. Hull, 246 N. Y. 584; Delavan v. New York, N. H. & H. R. R. Co., 216 N. Y. 359; Cohen and Karger, Powers of the New York Court of Appeals, pp. 413:15.)

Although the challenge to the jurisdiction of the Magistrates’ Court could have been raised by the defendant on appeal from the judgment of conviction (see People v. Scott, 3 N Y 2d 148), and although that might have been a more orderly and regular method of procedure, the right to invoke habeas corpus, “ the historic writ of liberty ”, “ the greatest of all writs”, is so primary and fundamental that it must take precedence over considerations of procedural orderliness and conformity. (See U. S. Const., art. I, § 9; N. Y. Const., art. I, § 4; People ex rel. Tweed v. Liscomb, 60 N. Y. 559, 566, 591, supra; People ex rel. Sabatino v. Jennings, 246 N. Y. 258, 260.)

The judgment of affirmance appealed from must, therefore, be reversed. A question is presented, however, as to the appropriate disposition to be made in view of the People’s avowed intention to appeal from the order in the habeas corpus proceeding. This circumstance requires that we reverse and remit the case to the Appellate Part of Special Sessions, with directions to withhold consideration of the appeal from the judgment of conviction pending final determination of the People’s contemplated appeal from the order sustaining the writ of habeas corpus. In the event that the habeas corpus order is affirmed, or no timely appeal taken from it, the Appellate Part will be required to dismiss the defendant’s appeal from the judgment of conviction as academic.

The judgment appealed from should be reversed and the matter remitted to the Appellate Part of the Court of Special Sessions of the City of New York for further proceedings not inconsistent with this opinion.

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

Judgment reversed, etc.


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

text:
    In the Matter of Margaret A. Mitthauer, Respondent-Appellant, against Charles L. Patterson et al., Constituting the New York City Transit Authority, Appellants-Respondents.
    Argued April 19, 1960;
    decided May 19, 1960.

      Daniel T. Scannell, Helen R. Cassidy and Edward W. Summers for appellants-respondents.
    1. The Appellate Division erred, as a matter of law, in holding* that the punishment of dismissal imposed on petitioner was excessive. (Matter of Stracquadanio v. Department of Health, 285 N. Y. 93; Matter of Fiore v. O’Connell, 297 N. Y. 260; Matter of Wager v. State Liq. Auth., 4 N Y 2d 465; Matter of Stole v. Board of Regents of Univ. of State of N. Y., 4 A D 2d 361; People v. Cox, 286 N. Y. 137; Matter of Annunziata v. Patterson, 3 A D 2d 912; Matter of Giovelli v. Patterson, 8 A D 2d 829; Matter of Schnitzler v. Casey, 283 App. Div. 1092; Matter of Lustig v. Department of Labor of State of N. Y., 283 App. Div. 690; Matter of Roge v. Valentine, 280 N. Y. 268; Matter of Schadler v. Graves, 258 App. Div..451, 282 N. Y. 716; Matter of Evans v. Monaghan, 282 App. Div. 382, 306 N. Y. 312; Matter of Douglas v. New York State Thruway Auth., 6 A D 2d 836, 6 N Y 2d 721; Matter of Park East Land Corp. v. Finkelstein, 299 N. Y. 70; Matter of Mounting & Finishing Co. v. McGoldrick, 294 N. Y. 104.) II. Assuming, arguendo, that the court below properly determined that the punishment of dismissal constituted an abuse of discretion, it exceeded its powers, not only in fixing the punishment itself instead of remitting the proceeding to the Authority for such purpose, but also by reducing the punishment from dismissal to a punishment not authorized by statute. (Matter of Ray v. Board of Regents of Univ. of State of N. Y. 9 A D 2d 560; Matter of Stolz v. Board of Regents of Univ. of State of N. Y., 4 A D 2d 361; Matter of Faulisi v. Board of Police Comrs. of City of Corning, 1 A D 2d 763, 2 N Y 2d 812; Matter of Loewy v. Binghamton Housing Auth., 4 A D 2d 581, 5 A D 2d 916, 4 N Y 2d 1036; Matter of Bancroft v. Usher, 4 A D 2d 808; Matter of Rodriguez v. Rohan, 3 A D 2d 648; Matter of Friedman v. O’Connell, 5 A D 2d 858; Matter of McDonnell v. Kennedy, 5 A D 2d 971; Matter of Nimelman v. Kross, 5 A D 2d 984; Matter of Nagin v. Zurmuhlen, 6 A D 2d 677; Matter of Jones v. McCarthy, 7 A D 2d 710; Matter of Zebley v. Lubin, 7 A D 2d 965; Matter of Delventura v. Hayes, 8 A D 2d 730; Matter of Pollack v. Conway, 276 App. Div. 435, 301 N. Y. 816; Matter of Grottano v. Kennedy, 5 N Y 2d 381; Matter of Triple Inn v. Kennedy, 3 A D 2d 907; Matter of Phinn v. Kross, 8 A D 2d 132; Matter of Haywood v. Craig Colony, 5 A D 2d 958; Matter of McGinnis’ Broadway Restaurant v. Rohan, 6 A D 2d 115, 6 N Y 2d 770; Federal Power Comm. v. Idaho Power Co., 344 U. S. 17; Matter of Barsky v. Board of Regents of Univ. of State of N. Y., 305 N. Y. 89, 347 U. S. 442.)

      Joseph T. King for respondent-appellant,
    I, There was not the required, competent and substantial proof to sustain the finding that petitioner was guilty of collecting cash fares and retaining them for her own use. (Matter of Meyer v. Goldwater, 286 N. Y. 461, 286 N. Y. 697; Matter of Schnitzler v. Casey, 283 App. Div. 1092; Matter of Hecht v. Monaghan, 307 N. Y. 461.) II. Petitioner was denied the required judicial process at the administrative level. (Matter of Taub v. Pirnie, 3 N Y 2d 188; Matter of Greenebaum v. Bingham, 201 N. Y. 343; Matter of Douglas v. New York State Thruway Auth., 6 A D 2d 836, 6 N Y 2d 721.) III. Assuming, without conceding, that respondents submitted some proof of a technical breach by petitioner of some rule or rules, any such breach involved mere errors of judgment and the possibility of such breach was inherent in the job .and was unaccompanied by had faith or wrongful intent. In such circumstances petitioner should not he found guilty and her discharge was harsh and unjust punishment. (Matter of Rotkiewicz v. Department of Mental Hygiene of State of N. Y.,
      283 App. Div. 458, 307 N. Y. 847; People ex rel. Rigby v. Anderson, 198 App. Div. 283; People ex rel. Long v. Whitney, 143 App. Div. 17; People ex rel. Winspear v. Kreinheder, 197 App. Div. 887; Matter of Ryan v. New York State Liq. Auth., 273 App. Div. 576.) IV. Assuming, without conceding, that there was sufficient, competent and substantial evidence to support the finding that petitioner collected cash fares and retained them for her own use, in the circumstances of this case, dismissal of petitioner from employment with respondents was unreasonable and an abuse of discretion and the Appellate Division was within its authority in reducing such punishment and in fixing a new measure of punishment, pursuant to subdivision 5-a of section 1296 of the Civil Practice Act. (People ex rel. Shires v. Magee, 57 App. Div. 281; Matter of Sunland Beverage Corp. v. Rohan, 6 A D 2d 867; Matter of Stolz v. Board of Regents of Univ. of State of N. Y., 4 A D 2d 361; Moebus v. Tishman, 5 N Y 2d 945; Matter of Barsky v. Board of Regents of Univ. of State of N. Y., 305 N. Y. 89.)
   Chief Judge Desmond.

Petitioner, after having been employed by respondent Transit Authority and its predecessor for more than 20 years as a station agent or ticket seller, was found guilty after a trial before the Authority on three of five charges. The specifications on which petitioner was convicted accused her of collecting fares from passengers and then directing such passengers to enter onto the station platform by using an exit gate .without causing their fares to be registered by the “ passimeter totalizer ” or turnstile. Two of these specifications charged further that petitioner failed to report these incidents and retained for her own use the fares collected from those passengers who had used the exit gate instead of the turnstile. After a hearing, at which petitioner was represented by counsel and testified on her own behalf, the hearing officer sustained the charges and recommended to the Authority that petitioner be dismissed. The Authority dismissed her from her position and she brought this proceeding which was transferred to the Appellate Division, Second Department.

The Appellate Division, by a vote of 3 to 2, confirmed the "determination of guilt but modified the Authority’s determination by reducing the punishment from dismissal to suspension for six months from November 13, 1958, that being the date on which the hearing was held and being a few days before the dismissal. Two of the Justices dissented but their disagreement was not with the confirmation of the determination of guilt but with the modification of the penalty. In other words, the two dissenters thought that the dismissal should be confirmed. Petitioner and the Authority appeal to this court. Petitioner argues that there was insufficient competent evidence to sustain the findings of guilt. ' The Authority argues that the penalty of dismissal imposed by the Authority was not excessive and should not have been reduced and, further, that under subdivision 5-a of section 1296 of the Civil Practice Act the Appellate Division, having held that the discipline imposed by the Authority was excessive, could not fix a new penalty but could do no more than remit to the Authority for imposition of lesser punishment. That question of power has not previously been passed on by this court. The Authority argues, also, that the only penalties legally available (Civil Service Law, § 75, subd. 3) in such a case are these: reprimand, fine not to exceed $100, suspension for not more than two months, demotion in grade or title, or dismissal.

We have examined the evidence and hold that it is sufficient to support the findings of guilt.

More difficult questions arise from the Appellate Division’s reduction of the sanction from dismissal to a six-month suspension. The Appellate Division made a finding that under all the circumstances the punishment imposed was excessive ”, citing subdivision 5-a of section 1296 of the Civil Practice Act (supra). Subdivision 5-a was added in 1955 to overrule the holdings (see Matter of Barsky v. Board of Regents, 305 N. Y. 89) that no judicial review was available as to the measure of punishment imposed by administrative bodies acting within their powers. The 1955 amendment accomplished this by listing an additional issue to be passed on by the courts: ‘ ‘ Whether the respondent abused his discretion in imposing the measure of punishment or penalty or discipline involved in the determination.” The Authority argues earnestly that it was an abuse of discretion in this case for the Appellate Division to change this discipline and to hold that dismissal was excessive punishment. The Authority cites Matter of Stolz v. Board of Regents (4 A D 2d 361) where the Appellate Division, Third Department, said (p. 364) that subdivision 5-a authorises action by the court “ only if the measure of punishment or discipline imposed is so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one’s sense of fairness ” -—in other words, the old “arbitrary or capricious” test in other language. This argument by the Authority is a little hard to answer. The hearing officer and the Authority, rejecting petitioner’s version, reasonably drew the inference from the testimony that petitioner stole these fares. On such a finding, dismissal would seem not to be a shocking penalty even though the amounts stolen were small. However, this woman had oyer 20 years of service with a good record and would lose many valuable rights if dismissed. With some hesitation we conclude that the Appellate Division’s reduction of this penalty was authorised by subdivision 5-a.

At this point we come to another question, a new one in this court: Does subdivision 5-a authorise a fixing by the court of a new lower penalty or must the court, finding the administrative penalty excessive, remit the case to the administrative body to fix a new punishment? We find no other reported case where the reviewing court itself fixed a lesser penalty although there are many where courts have sent such matters hack to administrative boards to fix new penalties. No definite indication is discovered as to the legislative intent in this respect but some of the material in the New York State Legislative Annual (1955, pp. 32-35) suggests that subdivision 5-a was intended to give the court, in the course of its judicial inquiry a¡s to abuse of discretion, complete power over the whole subject matter. We hold that the power exists. Otherwise, in a case like the present one, the Appellate Division, if it felt that a six-month suspension was ail that could reasonably he imposed, would have to send the ease back to the Authority to fix a penalty no greater than that. Such circumlocution should be avoided. In appropriate cases, which will probably be few, the reviewing court can order a lesser discipline, much as it does in criminal cases (Code Grim. Pro., § 543).

There is one more problem in the case. The Authority says that in any event a six-month suspension was Illegal under subdivision 3 of section 75 of the Oivil Service Law (supra). That statute says that when a civil service employee is found guilty of charges “ the penalty or punishment may consist of a reprimand, a fine not to exceed one hundred dollars to be deducted from the salary or wages of such officer or employee, suspension without pay for a period not exceeding two months, demotion in grade and title, or dismissal from the service ’ \ However, under the circumstances of this ease and in the light of subdivision 5-a of section 1296 of the Civil Practice Act {supra), we hold that the six-month period as fixed by the Appellate Division was not illegal.

The order should be affirmed, without costs.

Froessel, J. (dissenting).

All the members of the Appellate Division as well as of this court are agreed that the determination of guilt be confirmed, but there is disagreement as to the punishment. We do not see how it may reasonably be said that when a trusted employee is found guilty of stealing sums of money, though they be small in amount, as here, respondents have abused their discretion in discharging her. By the determination below, they must retain in the civil service one who has been found guilty of such criminal misconduct.

We had no hesitancy, in Matter of Douglas v. New York State Thruway Auth. (6 NY 2d 721), in affirming an order of the Appellate Division which confirmed a determination of the New York State Thruway Authority dismissing petitioner for misconduct for having misappropriated several 50-cent tolls. Yet here the majority say that similar discipline meted out by respondents is an abuse of discretion. This undermines the right of an administrative agency to discipline misconduct as authorized by law, and in our judgment will impair the high standards required of our civil servants.

Moreover, subdivision 5-a of section 1296 of the Civil Practice Act (enacted as L. 1955, ch. 661) does not authorize the Appellate Division to fix punishment even in a case where it rightly believes the punishment imposed is excessive (Matter of Stolz v. Board of Regents, 4 A D 2d 361; Matter of Leavitt v. Board of Regents, 9 A D 2d 987). In the plainest of language the statute provides that the Appellate Division may determine only “ Whether the respondent abused his discretion in imposing the measure of punishment ”. (Emphasis supplied.) It may not substitute its own judgment for that of the administrative agency in the fixation of punishment. Where appeals are taken from the determination of a trial court, the Appellate Division may well exercise many of the powers of such court, but it may not appropriate to itself the powers of an administrative agency, even with respect to the measure of punishment. It may by way of review determine only whether the agency has abused its discretion, and if it finds such an abuse it must remit the matter to the agency for its proper redetermination.

Finally, there is no warrant whatsover for the Appellate Division’s substitution of a six months’ suspension of petitioner. Our courts can have no greater power, when it comes to the question of punishment, than has the administrative agency itself. The law is clear, and they are governed by precisely the same statute. Subdivision 3 of section 75 of the Civil Service Law provides that where an “ employee is found guilty of the charges, the penalty or punishment may consist of a reprimand, a fine not to exceed one hundred dollars * * *, suspension without pay for a period of not exceeding two months, demotion in grade and title, or dismissal from the service ” (emphasis supplied). Suspending petitioner for six months was clearly unauthorized by any statute and has no warrant in law.

We would reverse the Appellate Division and confirm the respondents’ determination in all respects, without costs.

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

Order affirmed.


author: Froessel, J.

text:
    Celia D. Peare, as Administratrix of the Estate of Samuel G. Peare, Deceased, Appellant, v. Jerry C. Griggs et al., Doing Business as Griggs Trucking Company, Respondents.
    Argued April 21, 1960 ;
    decided May 19, 1960.

      Bennett E. Aron, Jack F. Weiss and Harry Zeitlan for appellant.
    I. The judgment in the former action is not res judicata and is not a bar to the present action. (Martin v. Dry Dock, E. B. & B. R. R. Co., 92 N. Y. 70; Central New York Coach Lines v. Syracuse Herald Co., 277 N. Y. 110.) II. The administratrix had no authority to represent the estate and the trial of an issue purporting to be against the estate was of no avail and a nullity (Hamilton v. Erie R. R. Co., 219 N. Y. 343; Cohen v. Long Island R. R. Co., 154 App. Div. 603; Kwiatkowski v. John Lowry, Inc., 248 App. Div. 459; Matter of Meekin v. Brooklyn Heights R. R. Co., 164 N. Y. 145; Kirwin v. Malone, 45 App. Div. 93.) III. The judgment entered in the former action does not purport to adjudicate as to the claim against the administratrix in the present action and, therefore, cannot constitute a bar to this action. (MacAffer v. Boston & Maine R. R. Co., 242 App. Div. 140, 268 N. Y. 400; Denike v. Denike, 44 App. Div. 621, 167 N. Y. 585; Lorillard v. Clyde, 99 N. Y. 196; Webb v. Buckelew, 82 N. Y. 555; De Forest v. Andrews, 27 Misc. 145; Masten v.
      Olcott, 101 N. Y. 152.) IV. Even if the judgment would purport to adjudicate against this plaintiff, it would not har this action against respondent's because of lack of privity between plaintiff and Celia D. Peare as owner of the automobile. (Reynolds v. Ætna Life Ins. Co., 160 N. Y. 635; United States Fire Ins. Co. v. Adirondack Power & Light Corp., 206 App. Div. 584; Reilly v. Sicilian Asphalt Paving Co., 170 N. Y. 40; Furlong v. Banta, 80 Hun 248; Gerstein v. Fisher, 12 Misc. 211; Malsky v. Schumacher, 7 Misc. 8.)

      William F. McNulty and Stanley D. Hicks for respondents.
    I. The Appellate Division properly held that the clerical error in the judgment in the Virginia action constituted no legal basis for the dismissal of defendants’ defense of res judicata. This being the only issue before the Appellate Division as respects said defense, the judgment and order appealed from should be affirmed. (Good Health Dairy Prods. Corp. v. Emery, 275 N. Y. 14; Fish v. Vanderlip, 218 N. Y. 29; Israel v. Wood Dolson Co., 1 N Y 2d 116; Hinchey v. Sellers, 7 N Y 2d 287.) II. There was no claim or suggestion at the trial or in the Appellate Division that Mrs. Peare lacked authority to appear in the Virginia action as the administratrix of the estate of her deceased husband. Defendants having had no opportunity to litigate this new issue at the trial, the question therefore is not before this court on the present appeal. (Caponigri v. Altieri, 165 N. Y. 255; Lindlots Realty Corp. v. County of Suffolk, 278 N. Y. 45; United States Trust Co. v. Estate of Johnson, 287 N. Y. 232; Arc Eng. Corp. v. State of New York, 293 N. Y. 819; Hamilton v. Erie R. R. Co., 219 N. Y. 343; Central New York Coach Lines v. Syracuse Herald Co., 277 N. Y. 110.)
   Froessel, J.

In this action a judgment was awarded plaintiff, after trial, for the wrongful death of her husband, who was killed in Virginia when the car he was driving collided with a tractor-trailer owned by defendants and operated by one of their employees. The Appellate Division reversed on the ground that a judgment in favor of defendants herein—as plaintiffs in a Virginia property damage action wherein this plaintiff was a party defendant in both her individual and representative capacities—was res judicata.

The decretal part of the letters of administration issued to plaintiff by the Surrogate’s Court of Bronx County expressly authorized her ‘ to administer the estate of the deceased ’ ’, subject of course to its jurisdiction and supervision, and the only limitation upon her authority as administratrix was that she could not compromise the wrongful death action or enforce a judgment obtained therein until the further order of the court (see Surrogate's Ct. Act, § 122), Plaintiff did, in fact, appear, litigate and appeal to the court of last resort in Virginia in her capacity as “ administratrix ”, and, since decedent died intestate, she appeared for identically the same persons as administratrix of the estate as she did as statutory trustee (Decedent Estate Law, § 83, subd. 1; §§ 133, 134; 1950 Code of Virginia, VoL 2, § 8-636), namely, herself as widow and her three minor children.

Under Virginia law, which is controlling here (Baldwin v. Powell, 294 N. Y. 130, 132; Hinchey v. Sellers, 7 N Y 2d 287, 295-296), it was decedent whom she represented, whether acting as administratrix of the general estate or as statutory trustee (Hoffman v. Stuart, 188 Va. 785, 793), since the Virginia wrongful death statutes do not create a new and original cause of action—as does the New York .statute — “ but simply continue, transmit, or substitute the right to sue which the decedent had until his death ” (Street v. Consumers Min. Corp., 185 Va. 561, 570; see, also, Brammer v. Norfolk & Western Ry. Co., 107 Va. 206, 213-214). Plaintiff had every reason to appear in the Virginia action in her representative capacity, not only in an effort to safeguard the assets of the estate but also to preserve and protect her cause of action for wrongful death, which she was duly authorized .to commence and which she had in fact previously instituted in the State of New York (see Hoffman v. Stuart, supra, at pp. 792, 793, 799; see, also, Complete Auto Tr. v. Bass, 229 S. G. 607, 612). Since plaintiff had her full day in court in Virginia in her representative capacity, she was properly held barred from relitigating the same issues of negligence which were tried and decided adversely to her in the Virginia property damage action.

The judgment should be affirmed, without costs.

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

Judgment affirmed.


text:
    The People of the State of New York, Appellant, v. Terrence F. Wood, Respondent.
    Argued April 18, 1960;
    decided May 19, 1960.

      Manuel W. Levine, District Attorney (Henry P. De Vine of counsel), for appellant.
    I. The evidence before the Grand Jury, if unexplained and uneontroverted, would justify guilty verdict by trial jury. (People v. Eckert, 2 N Y 2d 126; People v. Lieberman, 3 N Y 2d 649; People v. Sweeney, 213 N. Y. 37; People v. Glen, 173 N. Y. 395; People v. Sexton, 187 N. Y. 495; People v. Molineux, 14 N. Y. Crim. Rep. 136; People v. Peary, 249 App. Div. 851; People v. Nitzberg, 289 N. Y. 523; People v. Lunse, 278 N. Y. 303; People v. Wagner, 245 N. Y. 143; People v. Patini, 208 N. Y. 176; People v. Giblin, 115 N. Y. 196; People v. Nichols, 230 N. Y. 221; People v. Smith, 232 N. Y. 239.) II. Gibson was a person engaged in the commission of a felony by Wood. (People v. Ryan, 263 N. Y. 298; Thomas v. People, 67 N. Y. 218; People v. Nelson, 309 N. Y. 231; People v. Alexander, 293 N. Y. 870; People v. Diamond, 95 Misc. 114; People v. Harris, 74 Misc. 353; People v. Licenziata, 199 App. Div. 106; Thiede v. State, 106 Neb. 48; People v. Pavlic, 227 Mich. 562; People v. Kane, 213 N. Y. 260; People v. La Marca, 3 N Y 2d 452; People v. Keshner, 304 N. Y. 968; Buel v. People, 78 N. Y. 492; People v. Friedman, 205 N. Y. 161; People v. Udwin, 254 N. Y. 255; People v. Luscomb, 292 N. Y. 390; People v. Elling, 289 N. Y. 419; People v. Sobieskoda, 235 N. Y. 411; People v. Patini, 208 N. Y. 176; People v. Moran, 246 N. Y. 100; People v. Van Norman, 231 N. Y. 454; People v. Marwig, 227 N. Y. 382; People v. Marendi, 213 N. Y. 600; People v. Huter, 184 N. Y. 237; People v. Grieco, 266 N. Y. 48; People v. LaBarbera, 159 Misc. 177; Scott v. Shepherd, 2 Wm. Bl. 892; Commonwealth v. Almeida, 362 Pa. 596; Commonwealth v. Thomas, 382 Pa. 639; Commonwealth v. Redline, 391 Pa. 486; Commonwealth v. Moore, 121 Ky. 97; Commonwealth v. Campbell, 89 Mass. 541; People v. Podolski, 332 Mich. 508; Wilson v. State, 188 Ark. 846; People v. Wilburn, 314 P. 2d 590, 49 Cal. 2d 714; Butler v. People, 125 Ill. 641.)

      William F. Hanrahan for respondent.
    I. The evidence before the Grand Jury was insufficient as a matter of law to sustain the indictment as to respondent Wood. (People v. Lieberman, 3 N Y 2d 649; People v. Eckert, 2 N Y 2d 126; People v. Hattemer, 4 N Y 2d 835; People v. Howell, 3 N Y 2d 672; People v. Luscomb, 292 N. Y. 390; People v. Marendi, 213 N. Y. 600; People v. Reilly, 255 App. Div. 109, 280 N. Y. 509; People v. Feliciano, 10 Misc 2d 836.) II. One engaged in the commission of a felony cannot be held liable for felony murder in the killing of another by a .third person who is not a principal in the underlying felony. (People v. Udwin, 254 N. Y. 255; People v. Giro, 197 N. Y. 152; People v. Keshner, 304 N. Y. 968; People v. La Marca, 3 N Y 2d 452; People v. Nichols, 230 N. Y. 221; People v. Nelson, 309 N. Y. 231; Commonwealth v. Redline, 391 Pa. 486; Commonwealth v. Almeida, 362 Pa. 596; Commonwealth v. Campbell, 89 Mass. 541; Commonwealth v. Moore, 121 Ky. 97; Kingsland v. Erie County Agric. Soc., 298 N. Y. 409; Payne v. City of New York, 2177 N. Y. 393; Saugerties Bank v. Delaware & Hudson Co., 236 N. Y. 425.)
   Burke, J.

The threshold question presented by this prosecution embraces the criminal responsibility of a felon for a homicide perpetrated by someone other than himself or an accomplice during the commission of a felony. Section 1044 of the Penal Law defines murder in the first degree as follows:

“The killing of a human being, unless it is excusable or justifiable, is murder in the first degree, when committed:
a * * *
“ 2, * * * without a design to effect death, by a person engaged in the commission of, or in an attempt to commit, a felony either upon or affecting the person killed or otherwise ” (emphasis added).

It would seem that in light of the common law, judicial interpretation and a fair reading, the Legislature intended that felony murder be confined to certain homicides committed by the felons. The dismissal of the indictment by the courts below was, therefore, proper.

The facts pertinent to this appeal are substantially uncontroverted and may consequently he introduced In summary fashion. Defendant and his companions, while patrons of a tavern in Nassau County, became embroiled in an altercation with one Vernon Gray and his brother. This argument continued into the street and resulted in the near fatal shooting of Vernon Gray, and a gun battle with an approaching police officer. Sometime during an attempted vehicular escape, one Bennie Gibson, the owner of the tavern, came to the assistance of the officer. He testified that both he and the officer were firing -at the automobile. This exchange of shots culminated in the deaths of one Lee (a companion of defendant) and one Moses (a bystander). The record discloses that the mortal wounds were inflicted by shots from Gibson ’-s rifle.

The Grand Jury returned two indictments containing assault and murder counts. The Appellate Division subsequently affirmed the County Court’s dismissal of the indictment charging defendant with the willful and felonious murder of Moses and Lee with malice aforethought.

It is the People ’s contention that the statutory phrase, “ a person engaged in. the commission of, or in an attempt to commit, a felony ’ ’, was intended to include, in addition to the felon and accomplices, “all persons involved”, e.g., the victim of the felony and those assisting Mm. They contend, therefore, that, since the deaths of Lee and Moses were the foreseeable consequence of this assault, the defendant should be held criminally responsible for felony murder. We do not so construe the statute. We shall not vindicate the wrong by a strained interpretation of this legislative codification of the common law. Penal responsibility, unlike moral responsibility, cannot be extended beyond the fair scope of the statutory mandate (Penal Law, § 21; People v. Ryan, 263 N. Y. 298, 302), The felony murder doctrine had its origin in the common law during an era when nearly all felonies were punishable by death (People v. Enoch, 13 Wend. 159). Because this often resulted in a barbaric application, the doctrine passed through a series of judicial and later legislative restrictions and limitations. However, both at common law and under the New York statute (supra), a felonious homicide is made murder in the first degree by operation of the legal fiction of transferred intent, which thereby characterizes the homicide as committed with malice prepense. (People v. Luscomb, 292 N, Y. 390, 395; People v. Huter, 184 N. Y. 237; Mansell and Herbert’s Case, 2 Dyer 128b; 4 Blackstone, Comm. *198.) It is the malice of the underlying felony that is attributed to the felon (People v. Luscomb, supra; Commonwealth v. Guida, 341 Pa. 305). Thus, a felony murder embraces not any killing incidentally coincident with the felony (People v. Ryan, supra; People v. Sobieskoda, 235 N. Y. 411; People v. Collins, 234 N. Y. 355) but only those committed by one of the criminals in the attempted execution of the unlawful end. Although the homicide itself need not be within the common design (People v. La Marca, 3 N Y 2d 452; People v. Nichols, 308 N. Y. 1038; People v. Keshner, 304 N. Y. 968), the ad which results in death must be in furtherance of the unlawful purpose (People v. Ryan, supra, p. 303; People v. Udwin, 254 N. Y. 255, 260-262; People v. Sobieskoda, supra, p. 416; People v. Michalow, 229 N. Y. 325; People v. Marwig, 227 N. Y. 382, 391; People v. Chapman, 224 N. Y. 463; People v. Giusto, 206 N. Y. 67, 73-76; People v. Friedman, 205 N. Y. 161; People v. Madas, 201 N. Y. 349; People v. Giro, 197 N. Y. 152; People v. Flanigan, 174 N. Y. 356; People v. Wilson, 145 N. Y. 628; Buel v. People, 78 N. Y. 492, 499; Ruloff v. People, 45 N. Y. 213; 1937 Report of N. Y. Law Rev. Comm., pp. 641-676; Corcoran, Felony Murder in New York, 6 Fordham L. Rev. 43, 65-67).

In other words, in order for a felon to be guilty of the homicide, the act (as in agency) must be “ either actually or constructively his, and it cannot be his act in either sense unless committed by his own hand or by some one acting in concert with him or in furtherance of a common object or purpose.” (Commonwealth v. Campbell, 89 Mass. 541, 544 [rioter not guilty of a murder for accidental killing of an innocent person by those suppressing the riot]; Butler v. People, 125 Ill. 641 [felon not guilty although rowdy conduct resulted in accidental killing of bystander by town marshall]; People v. Garippo, 292 Ill. 293 [felon not guilty where unknown person killed his accomplice during course of a robbery]; Commonwealth v. Moore, 121 Ky. 97 [felon not guilty where victim of robbery accidentally killed a bystander]; State v. Oxendine, 187 N. C. 658 [felon not guilty where victim of assault killed a bystander].) Where, however, the felon kills someone during the felony, but in a separate and distinct act and to satisfy his own end, his accomplice in the felony is not guilty of murder in the first degree (People v. Sobieskoda, 235 N. Y. 411, 416, supra). If the-lethal act is in furtherance of their common purpose, the accomplice is guilty even though there was an express agreement not to kill, and even if he actually attempts to prevent the homicide (People v. Friedman, supra).

In People v. Giro (197 N. Y. 152, supra) defendants Giro and Schle-iman were jointly indicted for homicide while engaged in the commission of a felony. There was but circumstantial evidence as to whether the fatal shots were fired by either of the defendants or by a victim of the burglary. The trial court charged, and we quoted with apparent approval that, in order to convict the defendants, the People must prove beyond a reasonable doubt that the mortal wounds were inflicted by one of the felons.

In People v. Udwin (254 N. Y. 255, supra) one of a group of convicts was slain during an attempted escape. Evidence as to the origin of the fatal bullet was also circumstantial, and we again approved the law of the case which allowed the jury to convict only if the People “ established beyond a reasonable doubt that the shot which killed [decedent] was fired by one of the convicts engaged with the defendants, or some of them, in a common purpose or design to unlawfully and feloniously escape.” (254 N. Y., p. 262; cf. People v. LaBarbera, 159 Misc. 177.)

Although several jurisdictions (People v. Wilburn, 314 P. 2d 590 [Cal.], affd. 49 Cal. 2d 714; Peoples v. Podolski, 332 Mich. 508; cf. People v. Cabaltero; 31 Cal. App. 2d 52) would, by application of the proximate cause theory, hold a felon responsible for a homicide committed, by someone other than a coconspirator, during the commission of a felony, at least one jurisdiction has repudiated its former position as an “ unwarranted judicial extension of the felony-murder rule ”. (Commonwealth v. Redline, 391 Pa. 486, 508.) Formerly the leading decision in that jurisdiction (Commonwealth v. Almeida, 362 Pa. 596) held the defendant liable for the killing of an innocent bystander by a police officer, because it was defendant’s act which set in motion the chain of events which resulted in the homicide. This far-reaching extension was carried to its logical conclusion in Commonwealth v. Thomas (382 Pa. 639) wherein the court found that a felon could be liable for the justifiable slaying of his accomplice by the robbery victim. The Bedline case 9supra) expressly overruled the Thomas decision, and, in limiting the Almeida case to its facts, cast serious doubt as to its rationale.

It is our opinion that, in view of the peculiar wording of our statute, we need not be concerned with the application of the rules of causation and foreseeability in situations such as that now before us. The statute defines as murder in the first degree only those homicides which are neither excusable n-or justifiable. The lethal acts of Gibson were at least excusable and could not, therefore, support a felony murder charge. It is apparent, therefore, that the " person ” referred to in subdivision 2 of section 1044 of the Penal Law is that person defined in section 2 of the same law, i.e., a principal in the underlying felony.

Accordingly, the order appealed from should he affirmed.

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

Order affirmed.

      . A most illogical consequence of this theory may, by application of the merger doctrine (People v. Wagner, 245 N. Y. 143; People v. Moran, 246 N. Y. 100) find a defendant not guilty of a felony murder if he kills the assaulted victim, but, oddly enough, guilty if the assaulted victim kills another.

      . Almost every jurisdiction in the United States has enacted statutes defining a felony murder. Although most jurisdictions limit its application to specified violent felonies (e.g., arson, rape, robbery and burglary), New York and the minority make homicide during the commission of any felony murder in the first degree (People v. La Marca, 3 N Y 2d 452; Arent and MacDonald, The Felony Murder Doctrine and Its Application Under the New York Statutes, 20s Com. L. Q. 288, 294).

      . There are at least 16 possible factual variations of homicide which may occur during the progress of a felony. For example, the fatal act can be caused by the defendant, one of his accomplices, the victim of the felony, or a bystander; and in each case it may be the one acting or any of the others who is killed. (See Hitchler, The Killer and His Victim in Felony-Murder Cases, 53 Dick. L. Rev. 3, for an annotated survey of each situation.)