author: Froessel, J.

text:
    New York Mobile Homes Association et al., Appellants, v. Thomas B. Steckel, as Supervisor of the Town of Chili, Monroe County, New York, et al., Respondents.
    Argued March 29, 1961;
    decided April 27, 1961.

      William L. Clay for appellants.
    I. The evidence presented at Special Term firmly supports plaintiffs’ contention that the mobile home, because of its extraordinary nature, cannot be classified as real property for the purpose of taxation. II. The amendment to the Tax Law as adopted by the Legislature is indefinite, ambiguous and unconstitutional. (Hoeper v. Tax Comm., 284 U. S. 206; Matter of New York Tel. Co. v. Ferris, 257 App. Div. 415, 282 N. Y. 667; People ex rel. Hudson Riv. Day Line v. Franck, 257 N. Y. 69; Matter of Stewart v. Carrington, 203 Misc. 543; Matter of Feld v. Hanna, 4 Misc 2d 3; Matter of Beagell v. Douglas, 2 Misc 2d 361.) III. The statute is so indefinite as to be incapable of equitable and proper enforcement.

      Louis J. Lefkowits, Attorney-General (Ruth Kessler Toch, Paxton Blair and Ralph E. Wickins of counsel), for respondents.
    I. A classification of mobile homes or trailers as real property for the purpose of inclusion in the assessment of land on which they are located is a valid and constitutional exercise of State legislative authority in the field of taxation. The evidence on the trial here showed the classification to be altogether reasonable and justified. (Magnano Co. v. Hamilton, 292 U. S. 40; Citizens’ Tel. Co. v. Fuller, 229 U. S. 322; Hatch v. Reardon, 184 N. Y. 431, 204 U. S. 152; Walters v. City of St. Louis, 347 U. S. 231.) II. Mobile homes have a dual nature: while serving as homes and offices when at rest, they are also movable. But it is not extraordinary nor invalid to classify as real property for tax purposes what is otherwise regarded as personalty. (People v. Beakes Dairy Co., 222 N. Y. 416; Holden v. Hardy, 169 U. S. 366; Noble State Bank v. Haskell, 219 U. S. 104; Burnet v. Wells, 289 U. S. 670; International Harvester Corp. v. Goodrich, 350 U. S. 537; Farrington v. Pinckney, 1 N Y 2d 74; Matter of New York Tel. Co. v. Ferris, 257 App. Div. 415, 282 N. Y. 667; Levy v. McClellan, 196 N. Y. 178; People ex rel. Panama R. R. Co. v. Commissioners of Taxes of City of N. Y., 104 N. Y. 240; People ex rel. Jamaica Water Supply Co. v. State Bd. of Tax Comrs., 196 U. Y. 39; Matter of Hazelwood Oil Co., 195 App. Div. 23; Mott v. Palmer, 1 N. Y. 564; Herzog v. Marx, 202 N. Y. 1.) III. Trailers or mobile homes are treated as dwellings in situations other than under this statute. Sites on which they are located are regulated as housing centers. (Ætna Life Ins. Co. v. Aird, 108 F. 2d 136; Corning v. Town of Ontario, 204 Misc. 38; Town of Perinton v. Muzeka, 1 A D 2d 795, 2 A D 2d 647; People v. Stewart, 204 Misc. 490; People ex rel. Herzog v. Miller, 170 Misc. 1063, 258 App. Div. 724; Defiance Milk Prods. Co. v. Du Mond, 309 N. Y. 537.) IV. The evidence in this case supports the classification in the statute as entirely reasonable, and the trial court so found. V. The trial in this ease, the evidence adduced thereon, and the evidence appellants conspicuously failed to produce are the total answer to the arguments appellants make against the law, which are pure speculation. (Matter of Beagell v. Douglas, 2 Misc 2d 361; Matter of Feld v. Hanna, 4 Misc 2d 3; New York State Trailer Coach Assn. v. Steckel, 208 Misc. 308, 3 A D 2d 643; Barnes v. Gorham, 12 Misc 2d 285; Minnesota v. Probate Court, 309 U. S. 270; Hersee v. Porter, 100 N. Y. 403; Waters & Co. v. Gerard, 189 U. Y. 302; Hoeper v. Tax Comm., 284 U. S. 206; People ex rel. Van Nest v. Commissioners, 80 N. Y. 573; Matter of Adda, Inc., v. Tax Comr. of City of N. Y., 7 A D 2d 844, 8 N Y 2d 769; Matter of Empire State Corp. v. Boyland, 1 Misc 2d 518, 1 A D 2d 770, 5 N Y 2d 715.)
   Froessel, J.

This litigation stems from a statute, underlying which is an attempt to secure reimbursement from trailer dwellers for some share of the expense of providing them with police and fire protection, educational facilities and the various other services rendered by a municipality to persons residing within its confines. By making his more or less permanent home in a trailer, an individual could derive the benefit of all the services provided by the local government, while leaving the burden of paying for them upon his neighbors who lived in more conventional type dwellings. Although the inequities of this situation were readily apparent, as all the cases on the subject agree, there was seemingly no solution of the problem since the New York State tax against personal property had been repealed (L. 1933, eh. 470; Tax Law, § 3), and trailers, of course, were traditionally considered to be personalty.

In 1952, however, the Assessors of the Town of Vestal proceeded to tax trailers, which were then located in a local trailer park, as real property. The owners of the land were assessed for the value of the trailers, despite the fact that none of the trailers was owned by them. In a proceeding to review the assessment, the court held that it was improper to classify a trailer as real property and declared the assessment illegal (Matter of Stewart v. Carrington, 203 Misc. 543). Although fully aware that the greatly expanding trailer population imposes “ severe financial burdens on the localities involved ”, the court noted that “Legislation is the proper recourse to pursue ” (203 Misc., at p. 546).

A little more than a year after this decision was rendered, the Legislature responded by the enactment of chapter 726 of the Laws of 1954, which added a new subdivision 6-a to section 2 of the Tax Law. It provided that the terms “land”, “real, estate ”, and “real property ”, as used in the Tax Law, shall ‘ ‘ include all the forms of housing which are * * * cornmonly called * * * ‘ trailers except (1) transient trailers which have been located within the boundaries of a tax district for less than sixty days and (2) trailers which are for sale and which are not occupied. ■ b. Trailers shall be assessed to the owners of the real property on which they are located.”

Although repealed since the institution of this litigation, the substance of subdivision 6-a is presently contained in section 102 (subd. 12, par. [g]) of the Beal Property Tax Law. The new section, however, no longer provides that the trailers “ shall be assessed to the owners of the real property on which they are located ’ ’. Bather, it now provides that ‘ ‘ The value of any trailer or mobile home shall be included in the assessment of the land on which it is located; provided, however, that if either the trailer or mobile home or the land on which it is located is entitled, to any exemption * * *, such trailer or mobile home shall be separately assessed in the name of the owner thereof ” (Beal Property Tax Law, § 102, subd. 12, par. [g]).

The present statute is in effect a re-enactment (see Beal Property Tax Law, § 1602, subd. 5) of former subdivision 6-a of section 2 of the Tax Law. While it now directs the assessment against the land instead of against the owner of the land, section 304 of the Beal Property Tax Law (formerly Tax Law, § 9) reads now virtually as it did then, namely, that ‘ ‘ All assessments shall be against the real property itself ”. We are therefore of the opinion that the Legislature intended us to read the original statute as it was re-enacted.

Plaintiffs, two membership corporations composed of owners of trailer parks, and an individual owner of a trailer park, sought a judgment declaring chapter 726 of the Laws of 1954 unconstitutional on the ground that it deprives them of their property without due process of law. The trial court (1) concluded that the plaintiffs lacked standing to attack the constitutionality of the statute (Tax Law, § 2, former subd. 6-a); (2) nevertheless, he passed upon the merits, declared the statute to be constitutional, and (3) dismissed the complaint. The Appellate Division found that the individual plaintiff had the requisite standing to attack the constitutionality of the statute and reversed so much of the judgment below as dismissed the complaint, while unanimously affirming the determination on the merits. It is from this determination that the appeal to us has been taken.

Plaintiffs on this appeal contend that (1) a trailer may not be properly classified as real property for tax purposes; (2) the statute is “ambiguous and unconstitutional”; and (3) the statute is so indefinite as to be incapable of equitable and proper enforcement. The initial question presented for our determination is whether the Legislature has the power to classify trailers as real property for purposes of taxation. The answer under the authorities must be in the affirmative.

In People ex rel. Holmes Elec. Protective Co. v. Chambers (1 N Y 2d 760) we held that the relator’s switchboards and other wiring and equipment located in its own central office and on its subscribers’ premises were properly assessed as taxable real property under the specific provision of subdivision 6 of section 2 of the Tax Law, which declared the terms “land”, “real estate ” and “ real property ” to include, for tax purposes, “ all telegraph lines, wires, poles and appurtenances ”.

Similarly, in Matter of New York Tel. Co. v. Ferris (257 App. Div. 415, 417, affd. 282 N. Y. 667), we affirmed a determination that telephone switchboards and other equipment were properly taxable as real property, despite a finding that such equipment was readily removable from the building in which it was housed without damage to either the property or the building. It was unnecessary for us to consider the character of the equipment at common law, since the statute designated this particular type of property as realty for tax purposes and, as the Appellate Division correctly noted, where the Tax Law has set up a standard of its own, it must govern (see, also, Wagner v. Mallory, 169 N. Y. 501; Matter of Hazelwood Oil Co., 195 App. Div. 23).

Plaintiffs’ attempt to distinguish these cases on the ground that they involved “property attached to the freehold” is untenable. In each of them the property involved, absent the statutory classification, would normally be considered as personalty and could readily be removed from the premises. Moreover, while the trailers here are being utilized as residences, and thus remain stationary, they too are “ attached to the freehold Their water supply flows through a copper tube attached to the park outlet on the ground; they are connected to the park sewage system; gas, electricity and telephone connections are required to be made; and, although on wheels, many of the trailers have blocks set under them so that they will be level. Thus there is a rational basis for the legislative classification (see Ætna Life Ins. Co. v. Aird, 108 F. 2d 136; Corning v. Town of Ontario, 204 Misc. 38, 40).

Since trailers may thus properly be classified as real property for purposes of taxation, we turn to the next question: May they be assessed against the real property on which they are located?

The statute, as we have seen above, seeks to include the value of the trailer in the assessment of the land and improvements thereon. In this respect the situation presented is no different from that involved in any case where a lessee erects a building or other improvement on the realty of his landlord. "Where the fee is privately owned, the real property tax attaches to the combined interests of all the parties interested in the land and the improvements thereon (Matter of Fort Hamilton Manor v. Boyland, 4 N Y 2d 192, 198). Although the fee owner will, in such a situation, of course, be required to pay a higher tax than if the land were vacant, he ‘ ‘ ‘ will also protect himself by some stipulation in the lease against the increased taxation, and will in effect put the payment of it upon the lessee 7 77 (People ex rel. Van Nest v. Commissioners of Taxes, 80 N. Y. 573, 577). So too in the instant situation, the trailer park owner has the means at his disposal, by way of rent, to allocate the increased tax upon the owner of the trailer — the individual who rightfully should pay for it.

In Matter of Doughty v. Loomis (9 A D 2d 574, 575, affd. 8 N Y 2d 722) a landlord sought to compel the town assessors to assess separately the fee which he owned, and the buildings which had been erected thereon, and were owned by his lessees. The Appellate Division held: “ Since the assessment is against the land itself, and since the name of the owner is merely one part of identification, the validity of these assessments in which the actual title holder of the land is described as owner is not open to doubt. No requirement of any statute compels the assessors to trace and follow internal arrangements made between lessors and lessees as to who should pay the tax”. In affirming the decision below, we recognized that while this court has held on several occasions that land and buildings may be separately assessed under certain circumstances, neither case nor statute says that such a division must be made.

It is clear from the foregoing that the statute is not unconstitutional because -the aggregate tax assessed against the land is computed by reference to the value of the property of more than one owner.

Plaintiffs’ reliance upon Hoeper v. Tax Comm. (284 U. S. 206, 215) is misplaced. In the first place, it is readily distinguishable on its facts, involving as it does the validity of an income tax statute which sought to tax a husband upon the combined total of his and his wife’s income, and thus place him in a higher tax bracket. In that connection, the court noted that it was improper to “ measure the tax on one person’s property or income by reference to the property or income of another ” (284 U. S., at p. 215). Furthermore, in such a case the husband — unlike the trailer park owner—would have no means of recouping the additional tax resulting from the value of another’s property.

Plaintiffs additionally contend that the law is unconstitutional on its face because inequities may result from its application. In support of this contention, they refer to the hypothetical situations posed by the courts in Barnes v. Gorham (12 Misc 2d 285, 293-295), and Netu Yorh State Trailer Coach Assn. v. Steckel (208 Misc. 308, 312-313). The rather complete record before us, however, does not disclose that any of these fears has materialized, and it is clear that “ ‘ One cannot invoke to defeat a law an apprehension of what might be done under it and, which if done, might not receive judicial approval.’. (Lehon v. City of Atlanta, 242 U. S. 53, 56.) ” (Headley v. City of Rochester, 272 N. Y. 197, 204.)

Moreover, in Salzman v. Impellitteri (305 N. Y. 414, 420), a taxpayer’s action to enjoin the City of New York from entering into an agreement with the Transit Authority, and for a declaratory judgment, we held: 11 Whether the statutes will be constitutionally applied, or whether other constitutional questions, not now foreseeable, will arise, we cannot know in advance. Such problems, if any, must be dealt with when presented.” If the statute is not properly administered, a proceeding may be brought to challenge the tax allegedly improperly assessed, and the action complained of may be reviewed (People v. Calvar Corp., 286 N. Y. 419, 421-422).

Finally, it must be remembered that the “ wisdom or fairness of the tax before us are not matters subject to our control or revision. We are only concerned with the power of the state to lay the tax ” (Harvester Co. v. Department of Taxation, 322 U. S. 435, 444; see, also, People ex rel. Hatch v. Reardon, 184 N. Y. 431, 443, 458, affd. 204 U. S. 152; Genet v. City of Brooklyn, 99 N. Y. 296, 306-307).

Accordingly, the judgment appealed from should be affirmed, with costs.

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

Judgment affirmed.

      . The following memorandum accompanied the proposed hill: “ More and more, families in our state * * * are now residing in so-called house trailers. These families have children who are being educated in our schools and also demand police and fire protection, use our highways, courts and other governmental services. Present law does not provide an adequate means whereby these individuals may be assessed so that they pay their fair share of real estate taxes. This bill has been designed to correct this situation ” (Memorandum of Senator Warren M. Anderson, N. Y. Legis. Ann., 1954, p. 306).

      . As, for example, when the fee is exempt from taxation —the situation provided for in section 102 (subd. 12, par. [g]) of the Real Property Tax Law. (See, also, Matter of Fort Hamilton Manor v. Boyland, 4 N Y 2d 192, 198, supra; People ex rel. Hudson Riv. Day Line v. Franck, 257 N. Y. 69.)


source: Caselaw Access Project

license: Public Domain

text:
    David Fruhling, Appellant, v. Amalgamated Housing Corporation et al., Respondents.
    Argued March 22, 1961;
    decided April 27, 1961.

      Samuel B. Waterman and Nathan W. Math for appellant.
    I. The Commissioner does not have the power to compel Amalgamated to impose restrictions on its stockholder co-operators based on an income-rental ratio. II. The Commissioner had no power to regulate Amalgamated’s selection of stockholder co-operators or to impose restrictions on them, based on income, without statutory authority. (Weinfeld v. Knickerbocker Vil., 261 App. Div. 383, 286 N. Y. 590.) III. The State Housing Law made no provision for the selection of occupants of limited dividend housing projects. IV. Subdivision 3 of section 182 of the Public Health Law does not apply to Amalgamated or its stockholders. (Tropp v. Knickerbocker Vil., 205 Misc. 200, 284 App. Div. 935; Knickerbocker Vil. v. Lackow, 191 Misc. 874; Knickerbocker Vil. v. Greif, 191 Misc. 880, 191 Misc. 883.) V. Subdivision 3 of section 182, if construed to apply to co-operator stockholders of Amalgamated, is unconstitutional. (Strout v. Cross, Austin & Ireland Lbr. Co., 283 N. Y. 406; People ex rel. New York Cent. & H. R. R. R. Co. v. Mealey, 224 N. Y. 187.) VI. The section as applied by the Commissioner is an impairment of the obligations of contract. (McNulty v. Sloane, 184 Misc. 835; Coombes v. Getz, 285 U. S. 434.) VII. Application of the section is a taking of property without due process of law. (Matter of Jacobs, 98 N. Y. 98; People ex rel. Delaware & Hudson Co. v. Stevens, 197 N. Y. 1; Cowan v. City of Buffalo, 247 App. Div. 591; Matter of New York City Housing Auth. v. Muller, 270 N. Y. 333.) VIII. The section cannot be constitutionally upheld as an exercise of police power. (Defiance Milk Prods. Co. v. Du Mond, 309 N. Y. 537; Trio Distr. Corp. v. City of Albany, 2 N Y 2d 690; Triborough Bridge & Tunnel Auth. v. Crystal & Son, 2 A D 2d 37, 2 N Y 2d 961; People ex rel. Bunis v. Simmers, 13 Misc 2d 1097.) IX. Plaintiff is entitled to recover all surcharges paid to Amalgamated to date. (Matter of Chatlos v.
      McGoldrick, 302 N. Y. 380; Saltser & Weinsier v. McGoldrick, 295 N. Y. 499; Matter of Container Co. [Corsi], 298 N. Y. 277; Western N. Y. & Pa. Ry. Co. v. City of Buffalo, 296 N. Y. 93.) X. There is no triable issue of fact. The Commissioner’s affirmative defenses are without legal merit.

      Loins J. Lefkowits, Attorney-General (Daniel M. Cohen and Paxton Blair of counsel), for Commissioner of Housing of the State of New York, respondent.
    I. Section 182 of the Public Housing Law may constitutionally be applied to Amalgamated and its tenant stockholders. II. New York State has reserved the power to alter corporate charters. (Matter of Mount Sinai Hosp., 250 N. Y. 103; Beloff v. Consolidated Edison Co. of N. Y., 300 N. Y. 11; Lord v. Equitable Life Assur. Soc. of U. S., 194 N. Y. 212.) III. Neither property rights nor contract rights are absolute Both must give way to the exercise of the police power of the State. (Queenside Hills Co. v. Saxl, 328 U. S. 80; Veix v. Sixth Ward Assn., 310 U. S. 32; Nebbia v. New York, 291 U. S. 502; Miller v. Schoene, 276 U. S. 272; Northwestern Laundry v. Des Moines, 239 U. S. 486; Hadacheck v. Los Angeles, 239 U. S. 394; Atlantic Coast Line v. Goldsboro, 232 U. S. 548; Barbier v. Connolly, 113 U. S. 27; Twentieth Century Associates v. Waldman, 294 N. Y. 571, 326 U. S. 697; People v. Arlen Serv. Stations, 284 N. Y. 340; People ex rel. Durham Realty Corp. v. La Fetra, 230 N. Y. 429.) IV. The State Housing Law (L. 1926, ch. 823) contemplated State regulation and control of limited dividend housing by the Commissioner’s predecessor, the State Board of Housing. (Tropp v. Knickerbocker Vil., 205 Misc. 200, 284 App. Div. 935.) V. The Public Housing Law (L. 1939, ch, 808) merely continued, in its article IX, as to limited dividend housing companies, the system of State regulation and control which had been instituted under the State Housing Law. (Matter of Gross v. Weinfeld, 174 Misc. 1086; Matter of Rosenthal v. Weinfeld, 175 Misc. 9; Knickerbocker Vil. v. Lackow, 191 Misc. 874; Knickerbocker Vil. v. Greif, 191 Misc. 880, 191 Misc. 883, 274 App. Div. 993; Tropp v. Knickerbocker Vil., 205 Misc. 200, 284 App. Div. 935; Matter of Atkins v. Stichman, 193 Misc. 986, 274 App. Div. 926; Matter of Joffee v. United Veterans Mut. Housing Co., 201 Misc. 282; People v. Brooklyn Garden Apts., 283 N. Y. 373; Matter of Luxenberg v. Stichman, 2 A D 2d 605; Matter of

      Brown v. Stichman, 280 App. Div. 919, 280 App. Div. 973, 304 N. Y. 985.) VI. Amalgamated, in applying for the extension of its project, and its stockholder tenants, by the terms of their leases, have agreed to regulation by the Commissioner of their tenancies and the terms of their leases. That regulation includes the Commissioner’s power to impose surcharges rather than compel the immediate eviction of over-income tenants. (Atkins v. Hertz Drivurself Stations, 237 App. Div. 31, 261 N. Y. 352, 291 U. S. 641; Fahey v. Mallonee, 332 U. S. 245.)
   Froessel, J.

In this declaratory judgment action, we are called upon to decide whether plaintiff, a tenant stockholder of Amalgamated Housing Corporation, a private limited dividend co-operative corporation organized under the State Housing Law, may be properly subjected to a surcharge of 25% upon his rental or evicted from his apartment. The issues presented involve the applicability to plaintiff and Amalgamated of the Public Housing Law, and, in particular, subdivision 3 (par. [b]) of section 182 thereof, and, if so, the constitutionality of such application.

Subdivision 3 (par. [b]) of section 182, relating to co-operative housing companies and projects, provided at the time this action was instituted that apartments in such projects heretofore or hereafter constructed ’ ’ shall be available for persons or families whose probable aggregate annual income does not" exceed a 6 to 1 or in some cases a 7 to 1 income to rental ratio. It was also provided therein that an occupant whose income increases beyond the prescribed ratios may be permitted to remain in occupancy for three years with possible extensions, subject to approval by the Housing Commissioner. While plaintiff’s appeal in this action was pending in the Appellate Division, the Legislature added the following clause to paragraph (b) of subdivision 3, effective March 8, 1960: However, the rent of such occupant [allowed to remain by permission of the commissioner though his income has increased above the statutory maximum] shall be increased in proportion to his ability to pay more, the amount of increase to be ruled upon and prescribed by the housing company with the approval of the commissioner.” (L. I960, ch. 160.) Under familiar principles, we pass upon the applicability and validity of the statute as it existed on the date of this appeal, rather than the date of the commencement of this action (Strauss v. University of State of N. Y., 2 N Y 2d 464, 467; Black Riv. Reg. Dist. v. Adirondack League Club, 307 N. Y. 475, 486-487; Quaker Oats Co. v. City of New York, 295 N. Y. 527, 536).

Treating first with the question of the applicability to plaintiff and Amalgamated of the income qualification, surcharge and eviction provisions of subdivision 3 (par. [b]) of section 182, it is principally urged by plaintiff that his occupancy is controlled exclusively by the provisions of the old State Housing Law, which allegedly did not impose like qualifications upon occupancy. The Legislature, however, has by express direction and other manifestations of legislative intent indicated otherwise. Plaintiff’s contention, therefore, is without substance.

In 1939 the State Housing Law was replaced by sections 170-193 of the Public Housing Law. Section 193, though preserving the existence of private limited dividend housing companies already organized under the State Housing Law, such as Amalgamated, expressly made them “ subject to the duties, restrictions and liabilities ” of the Public Housing Law. Some question as to the extent of the application of the Public Housing Law to them may arguably be raised by the qualification in section 193 preserving “ rents However, any possible doubt as to the application of section 182 (subd. 3, par. [b]), including its provisions as to rents, has been conclusively dispelled by the 1949 amendments (L. 1949, chs. 616, 761) of paragraphs (a) and (b) of said subdivision 3, introducing the word “ heretofore ” into the subdivision, which previously read hereafter ” only. These amendments were expressly designed to overcome the decision of this court in Weinfeld v. Knickerbocker Vil. (286 N. Y. 590, affg. 261 App. Div. 383, followed in Knickerbocker Vil. v. Lackow, 191 Misc. 874, affd. 191 Mise. 883, affd. 274 App. Div. 993), which had limited the application of section 182, in accordance with the specific restriction therein contained, to projects constructed “ hereafter ”, i.e., after 1939. The 1949 amendments, in consequence, rendered section 182 applicable to all housing company projects, whether the corporation was incorporated hereafter or ‘ ‘ heretofore ’ ’, and whether the project of the corporation was constructed hereafter or “ heretofore ” (see N. Y. Legis. Ann., 1949, pp. 228-229).

Concluding then that section 182 (subd. 3, par. [b]) is clearly applicable to plaintiff and Amalgamated, we turn to the second issue presented, namely, whether such application violates constitutional guarantees. The claim is made that by subjecting Amalgamated and plaintiff in particular to income ratios as a condition of continued occupancy, and to surcharges in the event occupancy is permitted to continue, there is an impairment of contractual obligations and talcing of property without due process of law.

The contract, now allegedly impaired, plaintiff maintains, was “ previously made on the faith of the State Housing Law ”; so, too, the property rights now allegedly taken away in violation of due process derived from that contract and, in turn, the State Housing Law. By the express terms of the State Housing Law, however, any such contract and rights acquired thereunder were qualified ones. That law was designed to eradicate the ‘ ‘ congested and unsanitary housing conditions ’ ’ existing ‘ ‘ in certain areas of the State in low priced dwellings ” through the formation of limited dividend housing corporations to construct new housing facilities “ in accord with proper standards of sanitation and safety ” “at a cost which will permit monthly rentals which wage earners can afford to pay ” (State Housing Law, § 2, Legislative Finding; emphasis supplied).

Amalgamated in return for the privilege of incorporation under the statute, with the attending benefits conferred — such as tax exemptions in particular (State Housing Law, § 39) — expressly agreed in its certificate of incorporation “ that all real estate acquired by it and all structures erected by it, shall be deemed to be acquired for the purpose of promoting the public health and safety and subject to the provisions of the state housing law.” (State Housing Law, § 30, subd. 13; emphasis supplied.) Needless to say, the State Housing Law thus incorporated by reference into Amalgamated’s charter, by which it and of necessity its stockholder tenants were bound, was always subject to change in the future (here by Public Housing Law, § 182) as required to effectively promote the objects for which the statute was enacted-.

It could hardly be maintained that the amendments' to section 182 here in issue — in particular those requiring eviction— were other than reasonable revisions of the statute and the rights derived thereunder, designed' to promote the objects of the statute and the public health and safety. The specific object of the statute was to eradicate slum-dwellings by providing the occupants of such premises safe "and-sanitary low-cost apartments to which they could remove. The occupants'- of these slums.were and are, generally speaking, the <£ wage earners ’’ of whom the statute’s' findings spoke initially, and who were later more specifically classified by reference to income to rental ratios. By promoting the vacancy of apartments in subsidized projects, reasonably based1 upon' an increase in • the tenant’s income sufficient to-permit him to relocate in nonsubsidized housing, those not as fortunate in lower income brackets, constrained theretofore to remain in their slum dwellings, are afforded the opportunity to remove therefrom and, in time, slum areas are lessened.

The provisions imposing a surcharge in lieu of eviction upon attaining a certain income level also have a tendency to promote the statutory' purpose as do the eviction provisions, since a tenant subjected to a surcharge" may thereby be induced to remove to better accommodations." Be that as it may, the Legislature, having the power to require removal upon the tenant’s attaining a certain income level, could, in our opinion, properly enact within its discretion alternative provisions in amelioration of its right to require removal. Specifically, it could, as here, impose a surcharge commensurate with an increase in income above the statutory maximum.

We have concluded thus far that plaintiff and Amalgamated may constitutionally be subjected to the provisions of section 182 (subd. 3, par. [b]) of the Public Housing Law, containing income qualification, surcharge and eviction provisions. One question now remains: As of what date did plaintiff become subject to the surcharge? The problem arises because of the'fact that until March, 1960, as we have, previously noted,, paragraph (b) of subdivision 3,. although containing a maximum income provision for continued occupancy, did not contain a surcharge provision. Prior to that time the surcharge was imposed solely by virtue' of the Commissioner’s Regulation No. 12. The' basic issue then is the validity of the regúlátion prior to the time of amendment.

Special Term upheld the surcharge as authorized and valid by reading the provisions of paragraph (a) of subdivision 3 (relating to non-co-operative housing) into paragraph' (b). The Commissioner on this appeal urges that we do the same. It is contended that the failure to include the provision in the statute' prior to March, 1960 was but a legislative oversight; that the amendment sought merely to clarify the law as it existed theretofore; and, in any event, it was authorized to impose the surcharge under its general regulatory powers.

The historical development of paragraph (b) of subdivision 3 clearly demonstrates that the purpose of the .provision was to accord tenants in co-operative projects under the act separate and special treatment in light of the fact that they had to purchase stock as a condition precedent to occupancy. This is apparent from the memorandum of the- Division of Housing itself at the time paragraph (b) was enacted (N. Y. Legis. Ann., 1948, p. 227) and by the very provisions of paragraph (b) (L. 1948, ch. 610). Thus paragraph (b) was introduced by the phrase “Notwithstanding the provisions of paragraph (a) ”; and it initially provided that the income to rental ratio for continued occupancy in co-operatives was to be 7 to 1 and 8 to 1 as opposed to 5 to 1 and 6 to 1 for non-co-operative housing under paragraph (a); and, further, an unlimited grace period, within the discretion of the Commissioner,- for continued occupancy of over-income tenants was provided. In 1951, when the surcharge provisions were introduced into paragraph (a) (L. 1951, ch. 532), a like provision was not added to paragraph (b), and, when amending paragraph (b) in 1960, the Legislature in a1..note annexed to the amendment (1 Laws of New York, 1960,:p. 920, n't) expressly recognized that it had theretofore accorded tenants in co-operatives special treatment, particularly in regárd'.tp surcharges. -

In our opinion, therefore, the Commissioner’s regulation imposing surcharges on co-operatives prior to the 1960 amendment was invalid. It contravened the demonstrated legislative intent to accord co-operatives separate and special treatment as to surcharges until the time of the amendment. If the Legislature in pursuance of such a policy decided not to impose such a requirement upon continued occupancy in co-operatives, the Commissioner lacked the power to do so either under his general regulatory powers, or by reading paragraph (a) into paragraph (b). In view of the statutory history of paragraph (b) and the 1960 amendment, it can hardly be maintained that the legislative omission to impose surcharges on co-operatives was other than intentional.

Finally, it may not be maintained that the 1960 amendment is retroactive in effect, thereby validating the Commissioner’s imposition of surcharges nunc pro tunc. There is no indication by the Legislature that it was to be so, and in accordance with general principles of statutory construction it is operative prospectively only (Matter of Ayman v. Teachers’ Retirement Bd., 9 N Y 2d 119, 125).

Accordingly, the judgment below should be modified to the extent of providing that plaintiff was not subject to a surcharge prior to March 8, 1960, and, except as so modified, affirmed, without costs.

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

Judgment modified in accordance with the opinion herein and, as so modified, affirmed, without costs.

      . (See, however, Regulation No. 31 of the old Board of Housing, quoted in Tropp v. Knickerbocker Vil., 205 Misc. 200, 206-207, affd. 284 App. Div. 935.)

      . This section was substantially re-enacted as section 2 of the Public Housing Law. (See, also, N. Y. Const., art. XVIII, § 1.)


author: Foster, J.

text:
    The People of the State of New York ex rel. George Bartlam, Appellant, v. Robert E. Murphy, as Warden of Auburn State Prison, Respondent.
    Argued April 25, 1961;
    decided May 18, 1961.

      Eugene L. Wishod for appellant.
    I. Relator established that his statutory and constitutional rights were violated at the trial. (People v. Palumbo, 3 Misc 2d 229; People v. La Barbera, 274 N. Y. 339; Snyder v. Massachusetts, 291 U. S. 97; Hopt v. Utah, 110 U. S. 574; Lewis v. United States, 146 U. S. 370; People ex rel. Farnsworth v. Foster, 298 N. Y. 646; People v. Richetti, 302 N. Y. 290; People v. Langan, 303 N. Y. 474; People ex rel. Sheehan v. Murphy, 6 N Y 2d 238.) II. Under the circumstances of this case, habeas corpus was an appropriate remedy to challenge the validity of the judgment of conviction. (Matter of Morhous v. Supreme Court, 293 N. Y. 131; People ex rel. Wachowicz v. Martin, 293 N. Y. 361; People v. Sullivan, 3 N Y 2d 196; People v. Silverman, 3 N Y 2d 200; People ex rel. Carr v. Martin, 286 N. Y. 27; People ex rel. Tweed v. Liscomb, 60 N. Y. 559; People ex rel. Carollo v. Brophy, 294 N. Y. 540; People ex rel. Miller v. Martin, 1 N Y 2d 406; People ex rel. Curman v. Murphy, 7 N Y 2d 775.) III. The error was so fundamental as to vitiate the jurisdiction of the court. (People v. La Barbera, 274 N. Y. 339; Maurer v. People, 43 N. Y. 1.) IV. The error seriously prejudiced relator’s rights. (People v. Gonsalez, 293 N. Y. 259; People v. Gezzo, 307 N. Y. 385; People v. Miller, 6 N Y 2d 152.) V. The error could not reasonably have been raised by the normal corrective processes. (People v. Shapiro, 2 Misc 2d 462; People ex rel. Tweed v. Liscomb, 60 N. Y. 559.)

      Louis J. Lefkowits, Attorney-General (Joseph J. Rose of counsel), for respondent.
    I. Since no constitutional question is involved in the order appealed from, this court is without jurisdiction to entertain this appeal, taken purportedly as of right. II. The courts below have properly held that relator failed to produce sufficient evidence to overcome the presumption .of regularity.
   Foster, J.

Eelator appeals, as of right, on constitutional grounds, from an order of the Appellate Division, Fourth Department, which unanimously affirmed an order of the Supreme Court, Cayuga County, dismissing a writ of habeas corpus. In a verified petition relator had alleged that he and his counsel were not present during part of his trial for the crime of murder, first degree.

Eelator was convicted of murder, first degree, in the Court of General Sessions, New York County, in June, 1953, and pursuant to a mercy recommendation was sentenced to life imprisonment. The judgment of conviction was unanimously affirmed by the Appellate Division, First Department (285 App. Div. 1135).

This habeas corpus proceeding was commenced by relator’s verified petition dated September 18,1959. The petition alleged, in pertinent part, that relator was 1 ‘ convicted and sentenced illegally, and in direct violation of State and Federal Constitutions ”, in that relator and his attorneys were absent from the courtroom when the jury, prior to rendering its verdict, returned for further instructions.

■ A writ issued and a hearing was had before Special Term, Supreme Court, Cayuga County, at which relator appeared pro se.' Eelator introduced into evidence the record on appeal from the judgment, and the stenographic minutes of the trial.

The trial minutes revealed that the jury at the murder trial retired for deliberation at 1:10 p.m., May 11, 1953. At 4:45 p.m. the jury, unable to agree upon a verdict, returned to the courtroom for further instructions. A lengthy discussion ensued between court and jury, and the jury again retired for deliberation at' approximately 4:55 p.m. The trial minutes failed specifically'to5, indicate on their face that either relator'or his attorney were physically present when the jury returned for further instruction's; or that they had been notified of the jury’s return.

Respondent offered no evidence at the hearing, other than the judgment of conviction which had been annexed to the return. The return did not controvert any of the factual allegations of the petition. The courts below held that the minutes, irregularly kept, were not sufficient to' rebut the presumption of regularity.

A defendant in a felony case has an absolute constitutional and statutory right to be present at all stages of the trial and to the aid of counsel (N. Y. Const., art; I, § 6; Code Grim. Pro., §§ 356, 427). Section 427 of the code specifically provides for notice to counsel and mandates the presence of the defendant in the courtroom in the event the jury returns for further instructions. Indeed, presence of a defendant in a felony prosecution is a condition of - due process under the Federal Constitution “ whenever his presence has a relation, reasonably substantial, to the fulness óf his opportunity to defend against the charge ” (Snyder v. Massachusetts, 291 U. S. 97, 105-106). Under that test, presence of a defendant is required when further instructions are being given to the jury (Maurer v. People, 43 N. Y. 1, 5; People v. Palumbo, 3 Misc 2d 229).

Thus,'relator’s contentions raised substantial issues, and he was entitled to a trial thereon (People v. Richetti, 302 N. Y. 290, 295-296; People v. Langan, 303 N. Y. 474). At the “ hearing ”, relator appeared without counsel, and no sworn oral testimony was taken. From aught that appears relator was not. aware that his testimony was appropriate or necessary to support the sworn allegations in his petition. Respondent, in his return, failed to controvert the factual allegations advanced in the petition and offered no evidence to rebut those allegations.

Under the circumstances of- this case, the proceeding" below did not amount to a full-scale hearing within' the meaning of the Richetti case {supra). We think, therefore, that the order should be reversed and the proceeding remitted to Special Term, for a further hearing on the issues raised. At that hearing' sworn testimony by the relator, and by available witnesses, would be appropriate (People v. Richetti, supra; People v. Langan, supra). If such testimony is mot forthcoming, or if relator, knowing of the importance of sworn testimony in' his behalf,.fails to testify or to .-produce witnesses, in support of his petition, then, of course, a factual determination against him would not be disturbed here. “ The presumption of regularity of official proceedings would require the denial of the writ in the absence of any evidence concerning what did occur” at the trial (People ex rel. Williams v. Murphy, 6 N Y 2d 234, 236). The burden of proof remains on the relator. But, he should be given a further opportunity to establish his contentions through sworn testimony, if he is so advised.

No real opposition is offered by respondent to the procedural availability of habeas corpus. We have held that the presence of a defendant in a murder case when the jury returns for further instructions is essential to the court’s jurisdiction- to proceed with the trial (Maurer v. People, 43 N. Y. 1, 5, supra). Where the issue raised is one of jurisdiction, the fact that the error appears on the face of the record or may be inferred therefrom does not affect the right to invoke habeas corpus (People v. Schildhaus, 8 N Y 2d 33, 36). Indeed, relator already has been denied relief by way of coram nobis on the authority of People v. Shapiro (3 N Y 2d 203) and hence habeas corpus would seem appropriate here.

The order should be reversed and the proceeding remitted to the Supreme Court, Cayuga County, for.further hearings and proceedings not inconsistent with this opinion;

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

Order reversed and matter remitted to Special Term for further proceedings not inconsistent with the opinion herein.


author: Fuld, J.

text:
    Dorothy Haag, Also Known as Dorothy Hawthorne, Appellant, v. Norman Barnes, Respondent.
    Argued April 24, 1961;
    decided May 18, 1961.

      Alfred A. Rosen for appellant.
    I. The laws of New York relied on by respondent do not bar this proceeding but impose conditions on him. II. The Illinois statute relied on by respondent is no bar to the instant proceeding. The factual context out of which the agreement arises has the most significant contacts in New York. New York law therefore applies to the case at bar. (Auten v. Auten, 308 N. Y. 155.) III. Appellant’s stay in California prior to the birth of the child and two years after the signing of the agreement does not break her chain of residence in New York. Appellant’s designation of Illinois law to govern the agreement was not effectively made. IY. The Illinois statute expresses a policy which is different from and contrary to ours and need not he enforced in our forum. (People ex rel. Hansen v. Ciemeniecki, 221 Ill. App. 275; People v. Tice, 272 Ill. 516; Hauskins v. People, 82 Ill. 193; People v. Dile, 347 Ill. 23; Schaschlo v. Taishoff, 2 N Y 2d 408; Straus & Co. v. Canadian Pacific Ry. Co., 254 N. Y. 407; Anonymous v. Anonymous, 14 Misc 2d 622; Lynch v. Bailey, 275 App. Div. 527; Roth v. Patino, 185 Misc. 235; Matter of Landau, 172 Misc. 651; Holzer v. Deutsche Reichsbahn Gesellschaft, 159 Misc. 830; Rhyne v. Katleman, 206 Misc. 202, 285 App. Div. 1140.) Assuming, arguendo, that the agreement is governed by the laws of Illinois, nevertheless, it does not come within the purview of the statute relied upon by respondent. Hence, the instant proceeding is not barred.

      Phoenix Ingraham for respondent.
    I. A contract which is valid where made is valid everywhere unless it is against the public policy of the forum. (Straus & Co. v. Canadian Pacific Ry. Co., 254 N. Y. 407.) II. The agreement relied upon by respondent is an Illinois agreement, validly drawn in conformity with the laws of Illinois. (Auten v. Auten, 308 N. Y. 155.) III. Since the agreement was good where made, it is valid in New York unless it is against the public policy of this State. (Biddy v. Blue Bird Air Serv., 374 Ill. 506; Home Ins. Co. v. Dick, 281 U. S. 397; Lynch v. Bailey, 275 App. Div. 527.) IV. The Illinois agreement is not against the public policy of New York. (Rubin v. Irving Trust Co., 280 App. Div. 348, 305 N. Y. 288; Straus & Co. v. Canadian Pacific Ry. Co., 254 N. Y. 407; Schaschlo v. Taishoff, 2 N Y 2d 408; Rhyne v. Katleman, 206 Misc. 202, 285 App. Div. 1140; Roche v. McDonald, 275 U. S. 449; Davis v. Davis, 305 U. S. 32; Haddock v. Haddock, 201 U. S. 562.)
   Fuld, J.

This'appeal is-concerned with the effect in New York of an agreement made in another State for the support of a child horn out of wedlock. ' • '

' The complainant Dorothy Haag alleges that in 1947 she moved from Minnesota "and took'up residence in New-York City and that since then she has been 'a resident of this -State. The defendant Norman Barnes, on the other hand, is now and was, during the period involved in this litigation, a resident of Illinois.

According to the statements contained in the complainant’s affidavits, she met the defendant in the spring of 1954 in New York. She was a law secretary and had been hired by the defendant through an agency to do work for him while he was in New York on one of his business trips. The relationship between the man and the girl soon “ ripened into friendship ” and, on the basis of representations that he loved her and planned to divorce his wife and marry her, she was “ importuned ” into having sexual relations with him.

The complainant further alleges that she became pregnant as a result of having sexual relations with the defendant and that, upon being informed of this, he asked her to move to Illinois to be near him. She refused and, instead, went to live in California with her sister to await the birth of her child. Fearing that the defendant was losing interest in her, however, she returned to Chicago before the child was born and, upon attempting to communicate with the defendant, was referred to his attorney. The latter told Dorothy to choose a hospital in Chicago, which she did, and the baby was born there in December, 1955, the defendant paying the expenses.

Shortly after the birth of the child, her attempts to see the defendant in New York failed and she was advised by his attorney to return to Chicago in order that an agreement might be made for the support of her and her child. Returning to that city, she procured an attorney, recommended by a friend in New York, and signed an agreement on January 12, 1956. The agreement provides, in pertinent part, as follows:

1. It recites payment to the complainant by the defendant of $2,000 between September, 1955 and January, 1956 and a willingness on his part to support her child in the future, on condition that such payments “shall not constitute an admission” that he is the child’s father;

2. The defendant promises to'pay $50 a week and $75 a month, i.e., a total of $275 a month, “ continuing while [the child] is alive and until she attains the age of sixteen years ’ ’;

3. The complainant agrees 1 ‘ to properly support, maintain, educate, and care for [the child] ’ ’;

4. The complainant agrees to keep the child in Illinois for at least two years, except if she marries within that period;

5. The complainant “ remise [s], release [s] and forever discharge [s] Norman Barxes •* * # from all manner of actions * * * which [she] now has against [him] or ever had or which she * * * hereafter can, shall or may have, for, upon or by reason of any matter, cause or thing whatsoever * * * including *. * * the support of [the child] and

6. The parties agree that their agreement shall in all respects be interpreted, construed and governed by the laws of the State of Illinois

Shortly after the agreement was signed, the complainant received permission, pursuant to one of its provisions, to live in California where she remained for two years. She then returned to New York where she and her child have ever since been supported by the defendant in full compliance with the terms of his agreement. In fact, he has provided sums far in excess of his agreement; all told, we were informed on oral argument, the defendant has paid the complainant some $30,000.

The present proceeding was instituted in 1959 by the service of a complaint and the defendant was thereafter arrested pursuant to section 64 of the New York City Criminal Courts Act. A motion, made by the defendant, to dismiss the proceeding was granted by the Court of Special Sessions and the resulting order was affirmed by the Appellate Division.

The ground urged for dismissal was that the parties had entered into an agreement providing for the support of the child which has been fully performed; that in this agreement, the-complainant relinquished the right to bring any action for the support of the child; and that, in any event, the action is precluded ‘ by the laws of the State of Illinois which, the parties expressly agreed, would govern their rights under the agreement. In opposition, the complainant contended that New York, not Illinois, law applies; that the agreement in question is not a sufficient basis for a motion to dismiss under either section 63 of the New York City Criminal Courts Act or section 121 of the Domestic Relations Law, since both of these provisions provide that ‘ ‘ An agreement or compromise made by the mother * * * shall be binding only when the court shall have determined that adequate provision has been made ’ ’; and that, even were the Illinois law to apply, it does not bar the present proceeding.

The motion to dismiss was properly granted; the complainant may not upset a support agreement which is itself perfectly consistent with the public policy of this State, which was entered into in Illinois with the understanding that it would be governed by the laws of that State and which constitutes a bar to a suit for further support under Illinois law.

The complainant is correct in her position that, since the agreement was not court approved, it may not be held to be a bar to her suit under New York internal law. (See N. Y. City Grim. Cts. Act, § 63; Domestic Relations Law, § 121.) On the other hand, it is clear that the agreement is a bar under the internal law of Illinois since it provides, in the language of that State’s statute, for a ‘ ‘ sum not less than eight hundred dollars ’ ’. (See Ill. Rev. Stat., former ch. 17, § 18, amd. by former ch. 17, § 52 [now ch. 106%, § 65].) The simple question before us, therefore, is whether the law of New York or of Illinois applies.

The traditional view was that the law governing a contract is to be determined by the intention of the parties. (See Wilson v. Lewiston Mill Co., 150 N. Y. 314, 322-323; Stumpf v. Hallahan, 101 App. Div. 383, 386, affd. 185 N. Y. 550; Grand v. Livingston, 4 App. Div. 589, affd. 158 N. Y. 688.) The more modern view is that “ the courts, instead of regarding as conclusive the parties’ intention or the place of making or performance, lay emphasis rather upon the law of the place 1 which has the most significant contacts with the matter in dispute ’ ”. (See Auten v. Auten, 308 N. Y. 155, 160; see, also, Rubin v. Irving Trust Co., 305 N. Y. 288, 305.) Whichever of these views one applies in this case, however, the answer is the same, namely, that Illinois law applies.

The agreement, in so many words, recites that it shall in all respects be interpreted, construed and governed by the laws of the State of Illinois ’ ’ and, since it was also drawn and signed by the complainant in Illinois, the traditional conflicts rule would, without doubt, treat these factors as conclusive and result in applying Illinois law. But, even if the parties’ intention and the place of the making of the contract are not given decisive effect, they are nevertheless to be given heavy weight in determining which- jurisdiction “ ‘ has the most significant contacts with the matter in dispute’”. (Auten v. Auten, 308 N. Y. 155, 160, supra.) And, when these important factors are taken together with other of the “ significant contacts ” in the case, they likewise point to Illinois law. Among these other Illinois contacts are the following: (1) both parties are designated in the agreement as being “ of- Chicago, Illinois ”, and the defendant’s place of business is and always has been in Illinois; (2) the child was born in Illinois; (3) -the persons designated to act as agents for the principals (except for a third alternate) are Illinois residents, as are the-attorneys for both parties who drew the agreement; and (4) all contributions for support always have been, and still are being, made from Chicago; •'

Contrasted with these Illinois contacts, the New York contacts are of far less weight and significance. ■ Chief among these is the fact that child and mother presently live in New York and that part of the “ liaison ” took place -in New York. When these contacts are measured against the parties’ clearly expressed intention to have their agreement governed by Illinois law and - the more numerous and more substantial Illinois contacts, it may not be gainsaid that the-££ center of gravity ” of this agreement is Illinois and that, absent compelling public policy to the contrary (see Straus & Co. v. Canadian Pacific Ry. Co., 254 N. Y. 407, 414), Illinois law should apply.

As to the question of public policy, we would emphasize that the issue is not whether the New York statute reflects a different public policy from that of the Illinois statute, but rather whether enforcement of the particular agreement before us under Illinois law represents an affront to our public policy. (Cf. Loucks v. Standard Oil Co., 224 N. Y. 99, 111; Mertz v. Mertz, 271 N. Y. 466, 471; Restatement 2d, Conflict of Laws, Tentative Draft No. 6, § 332a, comment g.) It is settled that the New York Paternity Law requires something more than the provision of ‘ ‘ the bare necessities otherwise required to be supplied-by the community ”, that,££ although providing for indemnification of the community, [it] is chiefly concerned with the welfare of the child ’’. (See Schaschlo v. Taishoff, 2 N Y 2d 408, 411.) In our judgment, enforcement of the support agreement in this case under Illinois law and the refusal to allow its provisions to be reopened in the present proceeding does not do violence to this policy.

As matter of fact, the agreement before us clearly goes beyond 11 indemnification of the community ’ ’ and the provision of ‘ ‘ bare necessities ”. Whether we read it as a whole, or look only to the financial provisions concerned ($275 a month until the child reaches the age of 16), we must conclude that the welfare of the child ’ ’ is fully protected. (See Rhyne v. Katleman, 285 App. Div. 1140, affg. 206 Misc. 202 [$10,000 lump sum held sufficient].) The public policy of this State having been satisfied, there is no reason why we should not enforce the provisions of the parties’ support agreement under Illinois law and treat the agreement as a bar to the present action for support.

The order of the Appellate Division should be affirmed.

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

Order affirmed.


text:
    The People of the State of New York, Appellant, v. Rudolph Waterman and Albert Devine, Respondents.
    Argued March 28, 1961;
    decided May 18, 1961.

      Isidore Bollinger, District Attorney (Irving Anolik of counsel), for appellant.
    I. People v. Di Biasi (7 N Y 2d 544) is not dispositive of the issue presented and the statement was properly admitted into evidence. (People v. Downs, 8 N Y 2d 860, 364 U. S. 867; Spano v. New York, 360 U. S. 315.) II. Defendants were indicted as John Doe and Bichard Boe and were therefore unknown to the authorities. Moreover, Waterman, who alone made a statement to the police, was not surrendered by counsel, apparently did not ask for counsel and has never alleged that his statement was involuntary. (Watts v. Indiana, 338 U. S. 49; Nardone v. United States, 308 U. S. 338; Duffy v. People, 26 N. Y. 588; People v. Randazzio, 194 N. Y. 147; People v. Spano, 4 N Y 2d 256, 360 U. S. 315; Avery v. Alabama, 308 U. S. 444; Lisenba v. California, 314 U. S. 219; Stroble v. California, 343 U. S. 181; Crooker v. California, 357 U. S. 433; Cicenia v. Lagay, 357 U. S. 504; Anonymous v. Baker, 360 U. S. 287; Rea v. United States, 350 U. S. 214; Walder v. United States, 347 U. S. 62; People v. Gardner, 144 N. Y. 119.) III. It is not proper to edit or abridge the statement taken from a defendant. Devine’s position that all reference to him should have been deleted from Waterman’s statement is, therefore, untenable. (People v. Lombard, 4 A D 2d 666.) IV. Defendants received a fair trial. (United States v. Wexler, 79 F. 2d 526; People v. Conklin, 175 N. Y. 333; People v. Doody, 172 N. Y. 165; People v. Reitano, 189 App. Div. 776.) V. The guilt of defendants was established beyond a reasonable doubt. (People v. Seppi, 221 N. Y. 62; People v. Sanducci, 195 N. Y. 361.) VI. Waterman’s statements were voluntary. (Lisenba v. California, 314 U. S. 219; Ziang Sung Wan v. United States, 266 U. S. 1; People v. Lytton, 257 N. Y. 310; People v. Walker, 198 N. Y. 329; People v. Ledwon, 153 N. Y. 10; People v. McCarthy, 250 N. Y. 358.)

      Paul M. Bernstein, Anthony F. Marra and Charles J. Prentiss for Rudolph Waterman, respondent.
    I. Testimony concerning damaging admissions exacted from an accused outside the presence of counsel is inadmissible. (People v. Spano, 4 N Y 2d 256; Spano v. New York, 360 U. S. 315; People v. Di Biasi, 7 N Y 2d 544; People v. Downs, 8 N Y 2d 860.) II. The testimony of Nickens should have been stricken. III. The testimony concerning Fields and complainant’s ring should have been stricken.

      Maximilian W. Kempner and Anthony P. Marra for Albert Devine, respondent.
    I. The order and judgment of the Appellate Division should be affirmed as to Devine whether or not the confession was admissible as to Waterman. (People v. Di Biasi, 7 N Y 2d 544.) II. Limiting instructions were not sufficiently clear to be understood by the jury. (People v. Vaccaro, 288 N. Y. 170; People v. Lombard, 4 A D 2d 666, 10 A D 2d 846; People v. Schwarz, 10 A D 2d 17.) III. Defendant’s motion for mistrial should have been granted when the prosecutor, during summation, repeated incompetent implication of defendant. (People v. Conklin, 175 N. Y. 333; People v. Doody, 172 N. Y. 165.) IV. The charge to the jury was inadequate to overcome prior errors relating to confession. (People v. Robinson, 273 N. Y. 438.) V. Defendant’s acquittal should have been directed because the evidence was insufficient as a matter of law to warrant conviction. (People v. Sellinger, 265 N. Y. 149; People v. Mendola, 2 N Y 2d 270.)
   Fuld, J.

Indicted with two others in February of 1959, under the fictitious designations of “ John Doe ” and “ Bichard Boe ”, the defendants Waterman and Devine were convicted of the crimes of robbery in the first degree, second degree grand larceny and assault. The Appellate Division, by a divided court, reversed the judgments of conviction against both defendants and ordered a new trial. It was the Appellate Division’s view that it was error to receive in evidence incriminatory statements made by the defendant Waterman — in which he also implicated his codefendant Devine—under questioning by a police officer during the period between the return of' the indictment and his arraignment thereon.

The interrogation by the police officer occurred on two separate occasions in June, 1959, the first Tipie being in the Tombs in Manhattan where Waterman was then incarcerated on another charge, the second, in the detention cells of the Bronx County Building. On each occasion, the officer testified, Waterman made a complete confession, admitting that he, Devine and their two accomplices had participated in the robbery in question. And there can be no doubt that the police officer knew that Waterman had been indicted for that crime. As the Appellate Division observed, While it is not clear when the substitution of names was made in the indictment, it is clear that at the time of the conversations Waterman was in fact an accused ” and that the officer was in possession of information, given him by one of the other participants in the robbery, implicating Waterman.

The Appellate Division majority regarded our decision in People v. Di Biasi (7 N Y 2d 544) as authority for barring from evidence any admissions obtained from a defendant after indictment under questioning in the absence of counsel. The dissenting Justices, on the other hand, concluded that the decision was to be limited to the special facts there present and was not to be read as prescribing any such flat rule of exclusion.

We are confronted with another facet of the oft-mooted question as to the admissibility of incriminatory statements obtained from an accused as the result of interrogation by police or prosecuting authorities. The problem is that of achieving a balance between the competing interests of society in the protection of cherished individual rights, on the one hand, and in effective law enforcement and investigation of crime, on the other.

In People v. Di Biasi (7 N Y 2d 544, supra), this court condemned secret interrogation of a defendant by law enforcement authorities after indictment as violative of the defendant’s constitutional rights. The decision marked the adoption of the similar view previously expressed by three Judges of this court in dissent in People v. Spano (4 N Y 2d 256, 264-267, revd. on other grounds sub nom. Spano v. New York, 360 IT. ¡3. 315). Such questioning, we held, impinged upon the defendant’s twofold rights to the assistance of counsel and to freedom from testimonial compulsion. (See People v. Di Biasi, 7 N Y 2d 544, 550-551, supra; see, also, People v. Spano, 4 N Y 2d 256, 266-267, supra, per Desmond, J., dissenting.) Although Di Biasi and Spano each involved a capital case, in which the defendant was at the time of the interrogation represented by counsel who had arranged for his surrender on the pending indictment, the broad principle there announced did not turn on those particular circumstances.

The constitutional and statutory right of a defendant to the assistance of counsel at every stage of a criminal cause (N. Y. Const., art. I, § 6; Code Crim. Pro., §§ 8, 188, 308, 699; see People v. Price, 262 N. Y. 410, 412; People v. McLaughlin, 291 N. Y. 480, 482) is limited neither to capital cases (see People v. Koch, 299 N. Y. 378, 381; People v. McLaughlin, 291 N. Y. 480, 482-483, supra; People v. Price, 262 N. Y. 410, 413, supra) nor to the situation where the defendant already has an attorney. The constitutional guarantee ‘ ‘ includes a reasonable time to obtain counsel ”. (People v. Koch, 299 N. Y. 378, 381, supra; see, also, People v. McLaughlin, 291 N. Y. 480, supra; cf. People v. Marincic, 2 N Y 2d 181.) Indeed, in the Pi Biasi case, that the defendant did not ‘1 insist on the presence of his lawyer ’ ’ was regarded as immaterial (7 N Y 2d 544, 552, per Fuld, J., concurring).

It was likewise not decisive of the finding of testimonial compulsion inherent in the post-indictment interrogation in Pi Biasi that the defendant was charged with a capital crime or that he was represented by counsel. The crucial consideration was, rather, that the interrogation to which he was subjected, since it came after indictment, was an impermissible step in the progress of the criminal cause against the defendant.

An indictment is the 1 ‘ first pleading on the part of the people ’ ’ (Code Crim. Pro., § 274) and, where there has been no preliminary examination, marks the formal commencement of the criminal action against the defendant. Since the finding of the indictment presumably imports that the People have legally sufficient evidence of the defendant’s guilt of the crime charged (Code Crim. Pro., § 251), the necessities of appropriate police investigation 1 ‘ to solve a crime, or even to absolve a suspect” cannot be urged as justification for any subsequent questioning of the defendant. (See Spano v. New York, 360 U. S. 315, 323, supra.) Any secret interrogation of the defendant, from and after the finding of the indictment, without the protection afforded by the presence of counsel, contravenes the basic dictates of fairness in the conduct of criminal causes and the fundamental rights of persons charged with crime.

By way of implementation of the constitutional guarantee of the right to counsel, the Legislature has unequivocally declared that “In a criminal action the defendant is entitled * * * 2. To be allowed counsel as in civil actions ” (Code Grim. Pro., § 8, subd. 2). That right must be recognized and enforced not only by the courts when an accused appears without counsel (Code Grim. Pro., §§ 188, 308, 699), but also by the representatives of the People, at least once the criminal action has been formally instituted. As has been aptly observed, ‘ ‘ Depriving a person, formally charged with a crime, of counsel during the period prior to trial may be more damaging than denial of counsel during the trial itself ”, and such a deprivation “ after indictment and before trial ’ ’ may, indeed, be tantamount to the denial of “ effective representation by counsel at the only stage when legal aid and advice would help him ”. (Spano v. New York, 360 U. S. 315, 325-326, supra, per Douglas, J., concurring.)

While it has been held that a suspect need not be advised of his rights or privileges when interrogated by the police or prosecuting authorities prior to indictment (see People v. Randazzio, 194 N. Y. 147; People v. Doran, 246 N. Y. 409, 423), the initiation of a criminal action against the accused by the finding of an indictment operates to impose certafii disabilities upon the People. The People would manifestly not be permitted at the trial to call the defendant to the witness stand to establish their case through his testimony (cf. People v. McMahon, 15 N. Y. 384; People v. Oakley, 9 N Y 2d 656; People v. Warner, 9 N Y 2d 670). By the same token, they may not circumvent the defendant’s privilege against self incrimination by introducing into evidence inculpatory statements obtained from him. (following indictment) at a private examination prior to the trial, at least where, as here, he was not first advised of his privilege and his right to the assistance of counsel. Indeed, even before indictment, “ a prospective defendant or one who is a target of an investigation may not be called and examined before a Grand Jury and, if he is, his constitutionally-conferred privilege against self incrimination is deemed violated even though he does not claim or assert the privilege (People v. Steuding, 6 N Y 2d 214, 216-217.)

It has been urged that, “ To maintain the integrity of the judicial process in its use of evidence of criminal guilt, congruence must be maintained between the judicial process and the non-judicial, pre-trial processes with respect to the methods by which evidence of criminal guilt is secured ”. (Beisel, Control Over Illegal Enforcement of the Criminal Law: Role of the Supreme Court [1955], p. 102; see, also, Rothblatt and Rothblatt, Police Interrogation: The Right to Counsel and to Prompt Arraignment, 27 Brooklyn L. Rev. 24.) Di Biasi establishes that such “congruence” must be maintained throughout the course of a formally instituted criminal action, at least following the finding of the indictment.

Our affirmance in People v. Downs (8 N Y 2d 860, cert. den. 364 U. S. 867), upon which the People rely, represents no departure from the principle laid down in Di Biasi. The Downs decision turned on the special circumstances there present. Thus, Downs was explicitly advised that he was not required to make any statements and that he could consult an attorney; his first confession was actually volunteered before any questions were put to him; and at the trial he gave testimony on direct examination in his own defense, as forecast by his counsel in his opening to the jury, which was virtually identical with the statements he made to the authorities before trial.

In conclusion, then, the admission in evidence of the incriminating statements obtained from Waterman as a result of the post-indictment questioning was “ so gross an error as to require reversal, regardless of any other question”. (People v. Di Biasi, 7 N Y 2d, at p. 551, supra.) And the erroneous reception of Waterman’s confession, which implicated his codefendant Devine, likewise warranted the Appellate Division’s reversal of the latter’s conviction in the interest of justice. (See People v. Bonino, 1 N Y 2d 752; People v. Rudish, 294 N. Y. 500.)

The orders of the Appellate Division should be affirmed.

Chief Judge Desmond and Judges Dye and Foster concur with Judge Fuld; Judges Froessel and Burice dissent and vote to reverse upon the dissenting opinion of Botein, P. J., in the Appellate Division; Judge Van Voorhis dissents and votes to reverse in the following memorandum: The rule enunciated in People v. Di Biasi (7 N Y 2d 544) does not apply, it seems to me, to a situation where there has been a “ John Doe ” indictment and the name of the defendant who is actually accused has not been inserted in the proceedings pursuant to section 277 of the Code of Criminal Procedure.

Orders affirmed.

      . A codefendant; one Fields, the only one identified by name in the indictment, was arrested shortly after the commission of the crime and subsequently pleaded guilty to a lesser offense.


text:
    Robert McAllister, Respondent, v. New York City Housing Authority, Defendant, and George F. Driscoll Company et al., Appellants.
    Argued April 18, 1961;
    decided May 18, 1961.

      John P. Carson and Harold Schaffner for appellants.
    I. No cause of action was proved against the general contractors, George F. Driscoll Company and Moccia Construction Corp. (Goodman v. Silverman, 231 App. Div. 84; Rudger v. Mucklon Holding Co., 240 App. Div. 188; Bravado v. Murray, 257 App. Div. 271, 283 N. Y. 619; Zinsenheim v. Congregation Beth David, 10 A D 2d 501; Employers Mut. Ins. Co. v. Di Cesare & Monaco, 9 A D 2d 379; Uppington v. City of New York, 165 N. Y. 222; Herman v. City of Buffalo, 214 N. Y. 316; Olsen v. Chase Manhattan Bank, 10 A D 2d 539; Steeley v. City of New York, 4 A D 2d 792, 4 N Y 2d 736; Italiano v. Jeffrey Garden Apts. Section II, 3 A D 2d 677, 3 N Y 2d 977; Gambella v. Johnson & Sons, 285 App. Div. 580; Malbon v. Phelps Dodge Refining Corp., 281 App. Div. 688.) II. Plaintiff was guilty of contributory negligence. (Borshowsky v. Altman & Co., 280 App. Div. 599; Jackson v. Greene, 201 N. Y. 76; O’Connor v. 1751 Broadway, 1 A D 2d 836; Storm v. New York Tel Co., 270 N. Y. 103; Alesi v. City of New York, 9 A D 2d 236; Burnstein v. Haas, 272 App. Div. 1051, 298 N. Y. 596.)

      Benjamin H. Siff and Melvin Sacks for respondent.
    I. The liability of Superior Construction Company was clearly established. (Harriman v. New York, C. & St. L. R. R. Co., 253 N. Y. 398; Clemens v. Benzinger, 211 App. Div. 586; Bill v. New York Expanded Metal Corp., 60 App. Div. 470; Soderman v. Stone Bar Associates, 3 A D 2d 680; Rufo v. Orlando, 309 N. Y. 345.) II. The general contractor was properly found liable. (Dudar v. Milef Realty Corp., 258 N. Y. 415.) III. Contributory negligence was a question of fact properly resolved by the trial court. (Kaplan v. 48th Ave. Corp.,. 267 App. Div. 272; Lyles v. Terry & Tench Co., 227 N. Y. 361; Callegari v. Practical Constr. Co., 7 A D 2d 124; McRickard v. Flint, 114 N. Y. 222; Raolaslovic v. New Cent. R. R. Co., 245 N. Y. 91.)
   Froessel, J.

In this personal injury action, the trial court, sitting without a jury, awarded plaintiff, in his 70th year at the time of the accident, the sum of $98,482.20 for what was essentially a fracture of the right arm, resulting in limitation of motion, and some lesser injuries. The Appellate Division modified the judgment by reducing the damages to $70,000.

Plaintiff had been a structural ironworker for over 33 years, For 16 years he had worked for a firm which erected and dismantled hoist towers. He was accustomed to climbing down the outer framework of these hoists, as indeed he did on the day of this occurrence. He was 5 feet 7% inches tall, his shoulders were 1% feet wide, and he weighed 167 pounds.

On the day of the accident, he endeavored to enter the building in question, alongside which the hoist had beeen erected, from a plank, 8 stories above the street, headfirst, through an 18-inch-square window pane opening. He knew the window frame had just been placed in position temporarily, and that it was the duty of his employer to cement it in place. He partially succeeded in getting his body through the small opening, when the window frame, weighing between 70 and 80 pounds, fell upon him causing the injuries complained of.

In our opinion, plaintiff was guilty of contributory negligence as a matter of law. He was not, as the trial court stated, placed “in a position where he had to choose between two possible risks ”, nor was he “ suddenly in a position of peril ”. He must have foreseen that because of his size he would encounter difficulty and risk if he attempted to squeeze through the small 18-inch-square opening. With his long years of experience, there was virtually no risk to plaintiff in entering the building by climbing down the hoist tower to the sixth floor where no window frame had yet been installed. Indeed, he conceded he might have done so had he “ wanted to ”. On the other hand, his attempt to enter through the small window pane opening was a foolhardy, risky act. Moreover, he could also have requested that the frame, temporarily installed, be removed so that he might enter the building at the eighth floor, or he could have called down to the crew member assisting him on the ground floor in his work of dismantling the hoist. Given the various alternatives from which to choose, he may not claim that his failure of judgment may be excused because he was forced to act to escape immediate danger (Jackson v. Greene, 201 N. Y. 76, 79; O’Connor v. 1751 Broadway, 1 A D 2d 836, 837, affd. 2 N Y 2d 769; Utica Mut. Ins. Co. v. Amsterdam Color Works, 284 App. Div. 376, 379, affd. 308 N. Y. 816).

The judgment appealed from should be reversed, and the complaint dismissed, without costs.

Judges Fuld, Van Voorhis, Burke and Foster concur with Judge Froessel; Chief Judge Desmond and Judge Dye dissent and vote to affirm.

Judgment reversed, etc.


author: Dye, J. Froessel, J. (dissenting).

text:
    The People of the State of New York, Respondent, v. James Noble and Ella Barber, Appellants.
    Argued March 2, 1961;
    decided May 18, 1961.

      James 0. Moore, Jr., for James Noble, appellant.
    I. The verdict of the jury is against the weight of the evidence. (People v. Gaffey, 182 N. Y. 257; People v. Caruso, 246 N. Y. 437; People v. Crum, 272 N. Y. 348; People v. Oyola, 6 N Y 2d 259; People v. Perez, 300 N. Y. 208; People v. Valletutti, 297 N. Y. 226; People v. Spano, 4 N Y 2d 256; People v. Di Biasi, 7 N Y 2d 544; Fikes v. Alabama, 352 U. S. 191; Blackburn v. Alabama, 361 U. S. 199; People v. Mummiani, 258 N. Y. 394; People v. McMahon, 15 N. Y. 384.) II. The verdict of the jury with respect to the insanity of defendant James Noble is against the weight of the evidence. (People v. Kelly, 302 N. Y. 512.) III. The judgment of conviction of defendant Noble should be reversed in the exercise of this court’s supervisory power. (People v. Spano, 4 N Y 2d 256; People v. Di Biasi,
      7 N Y 2d 544; McNabb v. United States, 318 U. S. 332; Cicenia v. Lagay, 357 U. S. 504.) IV. The admission in evidence of the confession of defendant Noble constituted a violation of his rights under the Constitution of the State of New York and the Constitution of the United States. The circumstances under which the confession was procured rendered it involuntary and the use" of the confession violated the fundamental fairness essential to the constitutional concept of justice. (Blackburn v. Alabama, 361 U. S. 199; Lisenba v. California, 314 U. S. 219; Watts v. Indiana, 338 U. S. 49; Chambers v. Florida, 309 U. S. 227; Turner v. Pennsylvania, 338 U. S. 62; Harris v. South Carolina, 338 U. S. 68; Fikes v. Alabama, 352 U. S. 191; Spano v. New York, 360 U. S. 315; People v. McMahon, 15 N. Y. 384; People v. Mondon, 103 N. Y. 211; People v. Perez, 300 N. Y. 208.) V. Under the circumstances of this case the denial of defendant’s request to consult counsel constituted a violation of.his constitutional rights. (People v. Perez, 300 N. Y. 208; People v. Di Biasi, 7 N Y 2d 544; Powell v. Alabama, 287 U. S. 45; Crooker v. California, 357 U. S. 433; Cicenia v. Lagay, 357 U. S. 504; People v. Downs, 8 N Y 2d 860.)

      Marshall G. Kaplan, Michael L. B. Kaplan, Leonard H. Kaplan and Aaron B. Z. Silver for Ella Barber, appellant.
    I. In capital cases this court must review the sufficiency of the evidence. (People v. Vargas, 7 N Y 2d 555; People v. Williams, 292 N. Y. 297; People v. Valletutti, 297 N. Y. 226; People v. Weiss, 290 N. Y. 160; People v. Higgins, 5 N Y 2d 607; People v. Davino, 284 N. Y. 486.) II. Defendant has not been proven guilty beyond a reasonable doubt, as the evidence was insufficient to establish guilt. (People v. Chapleau, 121 N. Y. 266; People v. Leyra, 1 N Y 2d 199; Spano v. New York, 360 U. S. 315; Bram v. United States, 168 U. S. 532; People v. Mummiani, 258 N. Y. 394.) III. There is a reasonable possibility that defendant’s confession was induced by fear produced by threats. (People v. Miller, 6 N Y 2d 152.)

      Edward S. Silver, District Attorney {William I. Siegel of counsel),- for respondents.
    Appellants’ guilt of murder in the first degree was established beyond a reasonable doubt. (People v. Peller, 291 N. Y. 438; People v. Lobel, 298 N. Y. 243; Stein v. New York, 346 U. S. 156; People v. Vargas, 7 N Y 2d 555; People v. Leyra, 302 N. Y. 353; People v. Meyer, 162 N. Y. 357;
      People v. White, 176 N. Y. 331; People v. Randazzio, 194 N. Y. 147; People v. Doran, 246 N. Y. 409; People v. Weiner, 248 N. Y. 118; People v. Pignataro, 263 N. Y. 229; People v. Elmore, 277 N. Y. 397; People v. Chapman, 224 N. Y. 463; People v. Deacons, 109 N. Y. 374; Lisenba v. California, 314 U. S. 219; Gallegos v. Nebraska, 342 U. S. 55; Watts v. Indiana, 338 U. S. 49; Crooker v. California, 357 U. S. 433; People v. Di Biasi, 7 N Y 2d 544; McNabb v. United States, 318 U. S. 332; People v. Egnor, 175 N. Y. 419; People v. Kelly, 302 N. Y. 512; People v. Hoch, 150 N. Y. 291; People v. Horton, 308 N. Y. 1.)
   Dye, J.

This is an appeal from judgments of the Kings County Court convicting the defendants of the-crime of murder in the first degree. The indictment charged the defendants, acting in concert, with the willful killing of one Ernest Barber by stabbing and stomping (Penal Law, § 1044).

Upon this appeal we are urged to set aside the convictions on the general grounds that the verdicts were against the weight of the evidence; that the confessions made by the defendants were involuntary and the product of police brutality, psychological coercion and insidious suggestion, and, as to the defendant Noble only, that the specification of insanity offered as a defense was not-overcome by the People’s proof.

Concededly, the People’s case would have been insufficient had the defendants’ admissions not been placed in evidence. These admissions were made both orally and in writing; and all such incriminatory statements were made known to the jury on the People’s direct case. Based on this evidence, the jury believed that James Noble entered the apartment of the deceased and murdered him in one of the bedrooms, and that his act was done by prearrangement with Ella Barber, the deceased’s “ common law wife ”, Both defendants repudiated the statements claimed to have been given by them at the police station on the day that the crime was committed, and asserted their innocence.

Both now contend that their confessions were involuntary, and that the contrary jury finding was against the weight of the evidence.

Ordinarily, the issues thus raised could be properly left to the jury on an adequate charge as an issue of fact. However that may he as a generality, we find, on examination of this record, that a serious question is presented as to the admissibility into evidence of the written question-and-answer statement embodying Noble’s admissions, taken from him by an Assistant District Attorney shortly following his arrest. This is not because of the so-called third-degree treatment allegedly administered by the police, which was categorically denied and left to the jury as an issue of fact, but because the statement had been taken under circumstances we consider contrary to basic safeguards designed to assure a fair trial. Simply stated, the question is whether the use of the written statement, given by Noble, violated the fundamental fairness essential to the concept of justice when it appeared that, before having given it, he had asked to know if he was compelled to speak before consulting counsel, and was ignored.

At the beginning of the written statement, the following colloquy occurred:

“ Q. Last night or earlier this morning, at about 12:30, were you at the apartment of Ella and Ernest Barber, located at 1973 81st Street? A. No comment.

Q. What happened at 1973 81st Street, James? A. Am I compelled to answer these questions before I consult legal counsel?

“ Q. What happened? A. After I speak to legal counsel, I will speak to you.

“ Q. If I ask you any more questions, what would your answers be? A. After I speak to legal counsel, I will talk to you.

“ Q. James, do you want to make a statement? A. I do.

Q. Do you want to see your lawyer as you told me before? A. No, I tell you the truth, everything that happened.”

When a person under suspicion of crime is being questioned, there is a vast difference between a mere failure to warn and a •flat refusal to answer a proper inquiry as to his rights. We may not condone what happened here. It offends against our concept of fairness. The defendant was entitled to an answer. The Assistant District Attorney, as an officer of the court, was under an obligation to give reply—receiving none the defendant could reasonably have believed that he had no choice and was bound to answer. We regard the statement thus procured as an invasion of defendant’s privilege against self incrimination. It follows that its receipt into evidence was so prejudicial as to require a reversal. We find it unnecessary to reach the remaining allegations of error.

In the interest of justice the judgment of conviction as to Ella Barber should also be reversed.

The judgments of conviction should be reversed and a new trial ordered as to each defendant.

Froessel, J. (dissenting).

We cannot agree with the majority in the reversal of these convictions.

Defendants were charged with murdering, while acting in concert, the decedent, Ernest Barber, by stabbing, kicking and stomping him to death. Each made oral and written admissions to the authorities. A bloodstain was found on one of defendant Noble’s shoes, concealed at his mother’s home, which he admitted having worn the night of the homicide. Defendants were convicted of murder in the first degree.

Briefly, the evidence shows that in the early hours of Saturday, April 18, 1959, Ernest Barber, then about 38 years old, was found dead in his home in a Brooklyn apartment by Sylvester Dunn, a temporary boarder. Defendant Ella Barber, 28 years of age at the time, had lived with decedent as his ‘ ‘ common law wife ” for a period of about two years. She was legally separated from her husband, James Harrison, and had four children. She was a practical nurse at the Haym Salomon Home, where her codefendant Noble-—-a year older than she, and, as disclosed at the trial, an ex-convict—was also employed. Decedent’s death had been caused by asphyxiation or choking by his own blood. An artery in his left wrist had been severed, and there were stab wounds in his neck and numerous bruises on his head and face.

Three of our associates now vote for reversal of Noble’s conviction upon the ground that his written statement to the District Attorney—-implicating him in no greater degree than a prior oral statement to which they do not object — should not have been admitted in evidence, when it appeared that before giving it he had asked if he was compelled to speak before consulting counsel, but his inquiry was ignored. Thus they now seek to fashion another new rule for' the administration of criminal justice, namely, that no statement may be taken from one held for questioning in connection with a crime, if that person asks whether he must answer a question before consultation with counsel and his inquiry is unanswered. Promulgation of such a rule would represent a paradox in and of itself, and in practical effect would frequently enable astute defendants to evade punishment for their wrongs by the mere intonation of a simple formula.

While we have indicated in the past that we, might have been “better satisfied” were a person informed of his rights and privileges as a defendant prior to the actual institution of criminal proceedings against him, it is the well-established law of this State that he need not be so informed (People v. Randazzio, 194 N. Y. 147, 158; People v. Doran, 246 N. Y. 409, 423; People v. Leyra, 302 N. Y. 353, 363). This includes advice as to consultation with counsel and self incrimination. As recently as People v. Di Biasi (7 N Y 2d 544) we impliedly reaffirmed this doctrine by affording to the accused the right to counsel only after indictment (or arraignment), and not before, i.e., during the course of investigation by the law enforcement authorities. Our three associates do not deny this established rule of law. Conceding that the “failure” to advise is not error, they propose to hold that merely declining to advise is error. Declining to advise, however, constitutes, in our view, no more than the failure or omission to perform an alleged duty which the law does not impose in the first instance.

They rationalize the result upon the ground of fundamental fairness in that ignoring defendant’s question was tantamount to compelling him to speak—a view we cannot share. The Supreme Court of the United States enunciated the principle, of fundamental fairness in two decisions involving factual situations and contentions not unlike those presented here (Crooker v. California, 357 U. S. 433; Cicenia v. Lagay, id., at p. 504). That court was careful to note, however, that whether such unfairness is present depends upon the total factual picture presented; and in those two cases in fact held that such unfairness was not present, that due process was not violated. This doctrine, as the case of House v. Mayo (324 U. S. 42 [relied upon in both Crooker and Cicenia, supra]) patently shows, has been reserved for the benefit of those defendants who, because of the strange surroundings into which they are thrust, their general ignorance, and, too, we might add, their youth and lack of experience in such matters (see People v. Shenandoah, 9 N Y 2d 75; People v. Marincic, 2 N Y 2d 181), are the objects of overreaching by the law enforcement authorities.

In the case before us, the jury fully considered the issue of involuntariness and compulsion. They, having had the benefit of extended observation of defendant Noble during a 12-day trial and while on the witness stand, and upon consideration of all the circumstances presented—including the failure of the Assistant District Attorney to answer the question — concluded that defendant did not involuntarily give evidence against himself. This court now, however, relying upon an isolated excerpt from the transcript—but “ one pertinent element in determining from all the circumstances whether a conviction was attended by fundamental unfairness ” (Cicenia v. Lagay, supra, 357 U. S., at p. 509)—gives it undue emphasis in overruling the jury’s careful and full consideration of the issue. The record before us is indeed unusual in that the stamp of defendant’s personality, alertness, language and character is plainly apparent upon its printed pages — as was his familiarity with criminal procedures. Upon such a record, we are unable to conclude that the jury was misled.

In its larger and more significant aspect, the action of the court in this case will serve to hamper undnly the pretrial investigations by law enforcement authorities. As the Supreme Court recognized in the Cicenia case (supra, 357 U. S., at p. 509), “ it can hardly be denied that adoption of petitioner’s position would constrict state police activities in a manner that in many instances might impair their ability to solve difficult cases ”, and, as was said in the Croofcer case (supra, at p. 441), “would effectively preclude police questioning — fair as well as unfair ”.

Our prior decisions, such as Randazzio (supra), manifestly recognize the soundness of this position. The rights of a defendant are adequately preserved by allowing the jury to pass upon the voluntary nature of his admissions made in the course of such investigations, as permitted under section 395 of the Code of Criminal Procedure; and at the same time the competing interest of adequate law enforcement is not subverted.

Under the opinion of our brother Dye, all a defendant need do is to ask for counsel when first questioned by the authorities in the course of prearraignment interrogation, and all subsequent admissions will then be vitiated—a result which our prior decisions avoiding the imposition of such undue restrictions upon investigatory procedures have sought to prevent. Indeed, the astute and experienced criminal—in the “ difficult ” case where independent evidence is hard to secure — could avoid conviction by the formula afforded him under his opinion; and the ignorant and illiterate defendant—who in the final analysis is really the one in need of the court’s protection—will fail to intone the magic words when interrogated and thus be liable to ultimate conviction upon his statements to the police.

Accordingly, we vote to affirm defendant Noble’s conviction as well as that of defendant Barber, which is being set aside only because Noble’s conviction is being reversed.

Chief Judge Desmond and Judge Fuld concur with Judge Dye; Judges Van Voorhis and Foster concur in result only on the ground that the People did not prove beyond a reasonable doubt that defendant Noble’s confession was voluntary; Judge Froessel dissents in a separate opinion in which Judge Burke concurs.

Judgments of conviction reversed, etc.