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

text:
    The People of the State of New York, Respondent, v Armando Cardona, Appellant.
    Submitted January 12, 1977;
    decided February 17, 1977

      Nancy Rosner, New York City, for appellant.

      Robert M. Morgenthau, District Attorney (Robert M. Pitler and Peter L. Zimroth of counsel), New York City, for respondent.
   Jasen, J.

Crucial to the prosecution’s murder case against defendant were admissions allegedly made by defendant to a fellow prison inmate. Defendant contends that these statements were not admissible in evidence under the rule of Massiah v United States (377 US 201) on the theory that the fellow inmate solicited the statements as an agent for the prosecution in violation of defendant’s right to counsel.

At the suppression hearing, the court found that the inmate-witness had not solicited the statements, that the statements had been freely volunteered by the defendant, that the prosecution had not promised the inmate-witness any benefit in return for the information that he provided, and that the inmate had contacted the District Attorney’s office on his own initiative. Moreover, it was found that the defendant had not been coached or instructed by the police and prosecutors. Upon trial, defendant was convicted by a jury of murder and felonious possession of a weapon. On appeal, the Appellate Division affirmed both the order denying the motion to suppress and the resulting judgment of conviction, one Justice dissenting. (48 AD2d 610.)

The procedural posture of this case dictates an affirmance unless it can be said, as a matter of law, that the sole inference to be drawn from the facts as found by the courts below, is that the inmate-witness was acting as an agent for the prosecution. Although the facts would certainly support an inference of agency, the facts would not support the conclusion that this inference is the exclusive inference that could be rationally drawn from these facts. Under this circumstance, with cognizance of the limited powers of this court with respect to the review of questions of fact, we cannot substitute our view of the record for that of the suppression court and of the majority of the Appellate Division.

Certain it is that the prosecution in this case walked a thin line, particularly when it is considered that the inmate-witness provided information on other defendants on several occasions and that this co-operation was brought to the attention of the Judge who sentenced the witness, thereby producing a measure of leniency that apparently would not have been otherwise forthcoming. On the other hand, it must be acknowledged that inmates, and other police informants, frequently volunteer information on their fellows in the hope, but not in the certainty, of obtaining favored treatment. That the informer has a self-interest in obtaining better treatment from the government does not thereby automatically make the informer an agent of the government. The motivation to inform comes from the informer and not from the government. To be sure, if the government affirmatively plays on that motivation or harkens the informer to his self-interest, it thereby runs the risk of being responsible and accountable for the informer’s actions. But mere acceptance of proffered information by the government does not by itself necessarily establish the existence of an agency relationship between government and informer.

Thus, it has been held that where an informer works independently of the prosecution, provides information on his own initiative, and the government’s role is limited to the passive receipt of such information, the informer is not, as a matter of law, an agent of the government. (E.g., United States ex rel. Milani v Pate, 425 F2d 6, cert den 400 US 867; Paroutian v United States, 370 F2d 631; United States ex rel. Irving v Henderson, 371 F Supp 1266.) Yet, if the government is more than a passive auditor, such as where it actively inveigles a codefendant or fellow prisoner to inform as in Massiah itself, the statements made to the informer should be suppressed on the ground that the government, through its agent, encroached upon the defendant’s Sixth Amendment rights. However, we decline to subscribe to any ironclad rules as to when agency exists since the niceties of rule-complying form could easily mask the substance of a true agency relationship. It suffices, for our present purpose, to state that the courts below have found that the factual predicates for a finding of agency are absent and that under the circumstances of this case, we cannot say that, based on the unreviewable factual findings, their ultimate conclusion was erroneous as a matter of law.

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

Cooke, J. (dissenting).

There should be a reversal and a new trial.

The defendant’s inculpatory statements to the inmate-witness should not have been admitted in evidence under the rule of Massiah v United States (377 US 201), a rule involving the basic protection of the Sixth Amendment guarantee to assistance of counsel. Of course, it is true, as the majority states, "that inmates, and other police informants, frequently volunteer information on their fellows in the hope, but not in the certainty, of obtaining favored treatment” (p 335). In the ordinary case, the volunteering of such information by the fellow inmate would not make him an agent of the prosecution and, hence, would not violate the Massiah rule (cf. Paroutian v United States, 370 F2d 631). In the instant case, however, if the inmate-witness was not in fact an agent, he was nonetheless performing the same function to the same unconstitutional end.

The contact between the inmate-witness and the prosecution was not one of an isolated instance or two but, rather, of long duration and involving a considerable number of contacts. The facts accepted by the Appellate Division (48 AD2d 610) establish, among other things: that Morgan, the inmate-witness, was arrested in October, 1969, indicted for robbery in the first degree and kept in the Tombs awaiting trial; that during his sojourn at the Tombs he visited the prosecutor’s office on some eight occasions to disclose information concerning his own and other pending cases; that during the summer of 1970 he twice reported the substance of conversations he had with defendant, the second more incriminating than the first; that, concededly, Morgan was informed that his co-operation would be brought to the attention of his sentencing Judge; and that, perhaps by coincidence, Morgan, who originally faced up to 25 years on the robbery charge, was eventually permitted to plead guilty to a reduced charge and sentenced to a four-year term, after rejecting earlier plea offers of 15, 7 and 5 years.

The finding of the Appellate Division reveals that the inmate-witness was actively seeking incriminating information from fellow inmates and offering it to the prosecution in return for having his co-operation made known to the sentencing court. Of course, the prosecution could not prevent him from obtaining this information, and the record shows that it did not coach him or expressly urge that he obtain further information. Nevertheless, it is too easy to say that the Massiah rule does not apply merely because the prosecution, though encouraging the source, did not actively seek information. For all intents and purposes, the inmate-witness here performed the same function as an agent and the admission in evidence of defendant’s statements to him flouts the Massiah rule just as much and just as effectively as if the prosecution had formally and expressly requested that he elicit the statements from defendant.

The Massiah rule is not limited to Massiah circumstances (see Hancock v White, 378 F2d 479, 482). For example, in Beatty v United States (377 F2d 181, 190) the majority of the Court of Appeals, Fifth Circuit, in attempting to distinguish the situation there with that in Massiah, stated, inter alia: "Here, the government agents did not instruct [the secret informer] to engage the appellant in conversation or even to associate with him.” On appeal, the Supreme Court summarily reversed the judgment of conviction, citing Massiah (Beatty v United states, 389 US 45). (See, also, McLeod v Ohio, 381 US 356; United States ex rel. O’Connor v State of New Jersey, 405 F2d 632, 636-637.) Similarly, in the instant case, the rule should not be so tightly compartmentalized into a strict principal-agent relationship so as to ignore the reality of what actually occurred here.

Chief Judge Breitel and Judges Gabrielli, Jones, Wachtler and Fuchsberg concur with Judge Jasen; Chief Judge Breitel concurs in the following memorandum: I concur in the majority opinion only because the findings of fact as a result of the suppression hearing are binding on this court. Otherwise I would have agreed with the reasoning of the dissenting opinion. Judge Cooke dissents and votes to reverse in a separate opinion.

Order affirmed.


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    Joseph Christovao, Doing Business as Mercantum Trading Company, Appellant, v Unisul-Uniao de Coop. Transf. de Tomate do sul do Tejo, S.C.R.L., et al., Respondents, and Attorney-General of the State of New York, Intervenor.
    Submitted January 17, 1977;
    decided February 22, 1977

      Vito Vincenti, New York City, for appellant.

      Charles L. Sylvester, New York City, for respondent.
   Per Curiam.

Motion to dismiss appeal granted and appeal dismissed. The dissent at the Appellate Division was not on a question of law in favor of the appellant within the meaning of CPLR 5601 (subd [a], par [i]). Plaintiff attempted to assert jurisdiction over the persons of the defendants and, through an attachment, over their property. Special Term ordered the complaint dismissed on the grounds that personal jurisdiction was lacking (CPLR 302; 3211, subd [a], par 8) and, as to the remaining quasi-in rem jurisdiction, that New York was not a convenient forum for the resolution of this dispute (CPLR 327). The Appellate Division affirmed the order, with two Justices dissenting. The dissent stated that objections to personal jurisdiction had been waived and that the complaint should have been dismissed solely for forum non conveniens. Therefore, the dissent advocated a slight modification of the order of Special Term to delete the portion of the order dismissing the complaint for want of personal jurisdiction.

It is apparent that the minority view was styled a dissent for technical reasons only. In actuality, the Appellate Division minority concurred in the result but on only one of two alternative grounds.

CPLR 5601 was amended in recent years (e.g., L 1969, ch 999; L 1971, ch 44; L 1973, ch 95) to confine appeals as of right to situations where disagreement in the courts below would indicate the existence of debatable issues of law that would be reviewable by the Court of Appeals. (See Memorandum of the Court of Appeals, 1969 NY Legis Ann 1, 2; see, also, 1973 NY Legis Ann 20.) While it is true that the dissent here expressed limited agreement with one argument of the appellant, the ultimate resolution advocated by the dissent, dismissal of the complaint for forum non conveniens, was scarcely in his favor. The history and purpose of this amendment to CPLR 5601 leads us to view the statutory dissent requirement in a practical, not literal, sense. The ultimate measure of the substance of a minority viewpoint is not whether it articulates some agreement with the appellant’s position, but, instead, whether the minority would have determined the appeal substantially in his favor. Only when the minority has given appellant the benefit of its vote, as well as the benefit of its views, may it be said that there is actual disagreement sufficient to indicate the existence of a debatable law issue. Since, in this case, all of the Justices below advocated the dismissal of the complaint, it cannot be said that a technical dissent, substantively closer to a concurrence, should generate an appeal as of right.

Furthermore, the constitutional question articulated by appellant is not substantial. There is no constitutional impediment to the application of the doctrine of forum non conveniens to a New York resident.

Motion to dismiss the appeal herein granted and the appeal dismissed, with costs and $20 costs of motion.


author: Jasen, J.

text:
    The People of the State of New York, Respondent, v Michael Julian, Also Known as Casto Ramos, Appellant.
    Argued January 12, 1977;
    decided February 24, 1977

      Diana A. Steele and William E. Hellerstein, New York City, for appellant.

      Robert M. Morgenthau, District Attorney (Charles H. Solomon and Peter L. Zimroth of counsel), New York City, for respondent.
   Jasen, J.

The only issue of importance on this appeal is whether the prosecution established an adequate chain of custody to support the admissibility of various drugs seized pursuant to a valid search warrant. We conclude that the narcotics were properly admitted into evidence and would, therefore, affirm the order of the Appellate Division.

On the evening of February 12, 1970, three plainclothes police officers executed a search warrant on apartment 3A of 2534 Broadway in Manhattan. The actual search was preceded by a brief struggle with the occupant of the apartment, defendant Michael Julian. The officers testified that they discovered packages of suspected drugs at various places throughout the apartment. A small plastic bag of white powder was found on top of a dresser. In the center of the bedroom floor was a shopping bag filled with green vegetable matter resembling marijuana. Eighteen other packets of white powder were found either behind the refrigerator or under the sink. Finally, a rubber bag of white powder was discovered in the pocket of a jacket. Officer Tasik collected the various items and placed them into two small suitcases that were also found in the apartment. He then took the material to his station house, where he sealed the suitcases and deposited them with the property clerk. The following day, Officer Tasik personally took the suitcases to the police narcotics laboratory for chemical analysis of the contents. There, Sergeant Roger Fleming weighed and tested the material. Each of the packages was found to contain illegal drugs. Sergeant Fleming placed a seal on each of the packages and wrote his initials, the date, and the police laboratory number on each seal. The drugs were then placed back into the suitcases and remained at the laboratory until March 4, 1970, at which time Officer Tasik reclaimed the evidence for presentment to the Grand Jury. At the end of the day, Tasik gave the items to the police property clerk for safekeeping in the property clerk’s vault.

While awaiting trial and free on bail, the defendant absconded from the jurisdiction. Consequently, his trial was delayed for two years until defendant was recaptured. When Officer Tasik finally had occasion to retrieve the evidence in October, 1973, he discovered that it had been taken from the property clerk’s vault to the police laboratory for reanalysis. The evidence was found to have been at the laboratory at least since February 7, 1973, when Detective Carmine Diorio had performed a second chemical analysis. As part of a general investigation into the theft of drugs from police vaults, the police commissioner had ordered the reinventory and reanalysis of all drugs held by the property clerk to determine whether any amounts had been stolen. The 1973 reanalysis confirmed that each package contained an illegal substance, with slight weight variations from the prior examination. However, all of the variations fell within the range of expected deviation. Expert testimony indicated that the weight differences could be explained by a change in weighing techniques, weight losses associated with the testing procedure, and the varying tendency to either gain or lose moisture depending on the nature of the substance and the type of packaging. Officer Diorio testified that he reopened the packages without disturbing the identification seals from the first analysis. Upon completing his reanalysis, Diorio resealed each exhibit with a different seal, placed them back into the suitcases and sealed those cases with a tape that he initialed. At trial, Diorio identified the suitcases and recognized that the tape placed around the suitcases had not been disturbed. Similarly, he recognized his seal on each of the individual packages and stated that their condition appeared to be unchanged. The original analyst, Officer Fleming, testified at trial that the packages appeared to be in the same condition as when he last saw them.

Defendant does not dispute that a chain of custody was established from the time of seizure to the deposit with the property clerk on March 4, 1970, and again from the reanalysis of February 7, 1973 to the time of trial. Sometime between March 4, 1970 and February 7, 1973, however, the drugs were transferred by an unknown individual from the property clerk’s safe to, eventually, the chemical laboratory. Thus, the record contains no precise proof of the day-by-day location of the drugs during that period. Defendant contends that this gap in the chain of custody renders this real evidence inadmissible. To emphasize the danger of tampering, he argues that if Detective Diorio could reopen the packages without breaking the seals from the earlier analysis, an outsider with access during the gap could also have tainted the samples. He asserts that this possibility offers a likely explanation for the weight variations.

We do not accept defendant’s argument. To be admissible, any piece of real evidence must be shown to accurately portray a relevant and material element of the case. When real evidence is purported to be the actual object associated with a crime, the proof of accuracy has two elements. The offering party must establish, first, that the evidence is identical to that involved in the crime; and, second, that it has not been tampered with. In People v Flanigan (174 NY 356, 368), our court held that an iron bar was admissible because "[a]ll the witnesses who spoke upon the subject testified that it was the same bar and in substantially the same condition.” When an "object possesses unique characteristics or markings and is not subject to material alteration which is not readily apparent”, a simple identification is sufficient to warrant admission. (People v Connelly, 35 NY2d 171, 174.) While a fungible item, such as a package of white powder, presents special difficulties in proving the necessary authenticity, the offering party is required to establish only the same two elements, namely, that it is the identical evidence and has not been tampered with.

Proof of a complete chain of custody is one accepted technique for showing the authenticity of a fungible item of real evidence. In People v Connelly (supra), we identified this chain of custody technique as the method of general, but not exclusive, acceptability. We stated that the admissibility of a fungible item "generally requires that all those who have handled the item 'identify it and testify to its custody and unchanged condition.’ ” (35 NY2d, at p 174.) That is not to say, however, that the chain of custody requirement should be extended to unreasonable limits. (E.g., People v Jamison, 29 AD2d 973 [postal handlers need not testify].) In Amaro v City of New York (40 NY2d 30, 35), we recognized that failure to establish a chain of custody may be excused "where the circumstances provide reasonable assurances of the identity and unchanged condition” of the evidence. Such an exception arose in People v Porter (46 AD2d 307). Again, the court admitted the real evidence because the proof established the two basic requirements for showing authenticity, namely, that there existed "reasonable assurances of identity and unchanged condition”. (46 AD2d, at p 311.)

We believe that the prosecution amply demonstrated the identity of the offered evidence as that which was seized in defendant’s apartment. The proof indicates that after being deposited with the propety clerk, the evidence was transferred to another unit of the police department, pursuant to a legitimate administrative mandate. When discovered, the drugs were found precisely where they were supposed to be, in the police narcotics laboratory. At all times, the drugs apparently remained safely under police control. That the offered items were the materials seized in defendant’s apartment was confirmed by the fact that they remained within identifiable containers. Throughout the period of police custody, the packages were stored in the same suitcases into which they had initially been placed. The identification seal attached to each bag further established that these were the same packages that had been analyzed by Sergeant Fleming in 1970. At least as to the identity of the items in question, the gap in the chain of custody was, therefore, adequately bridged.

Defendant’s better argument challenges whether the circumstances provide a reasonable assurance that the evidence had not been tampered with. Even though the evidence is adequately identified as the items initially seized, a further question is whether, during the gap in the chain of custody, some unknown party could have caused a material and prejudicial change in the condition or nature of the evidence. By the time the present gap occurred, however, the opportunity for creating such a prejudicial alteration no longer existed. It is undisputed that a chain of custody was adequately established from the time of seizure to the time of the first chemical analysis. Its finding that the packages contained illegal drugs could not be affected by any tampering that might have occurred after the analysis. Thus, there was no possibility that the gap could have permitted any prejudicial alteration of the contents of the drugs initially seized.

Moreover, we believe that the trial court had sufficient evidence to justify a factual conclusion that no tampering had occurred. The second analysis revealed that, except for normal deviations, the contents of the packages were no different after the gap than before. While the deficiencies in the chain of custody may certainly be used to discredit the weight of the real evidence, those deficiencies were not sufficient to render that evidence inadmissible. We believe that a chain in custody should be tested not by the satisfaction of a technical series of steps, but by whether the proof satisfies the rationale for requiring an evidentiary foundation. Applying this test, we hold that the prosecution established an adequate chain of custody to support the admissibility of the various drugs seized.

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

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

Order affirmed.


author:
Jasen, J.
      Jones, J. (concurring). Fuchsberg and Cooke, JJ. (dissenting).

text:
    In the Matter of New York Times Company, Respondent, v City of New York Commission on Human Rights, Appellant, and American Committee on Africa et al., Intervenors-Appellants.
    Argued November 15, 1976;
    decided February 10, 1977

      W. Bernard Richland, Corporation Counsel (Ellen Kramer Sawyer and L. Kevin Sheridan of counsel), New York City, for appellant.

      Floyd Abrams and James J. Foster, New York City, for respondent.

      Douglas P. Wachholz, Ramsey Clark, T. Michael Peay and Peter Weiss, New York City, for intervenors-appellants.
   Jasen, J.

We hold that advertisements of employment opportunities located within the Republic of South Africa which merely refer to that country as the situs of the employment and which do not recite, on the surface, any discriminatory conditions do not express discrimination within the meaning of the New York City antidiscrimination laws. We also hold that a newspaper which publishes such employment advertisements does not thereby aid and abet the invidious discrimination practiced within the Republic of South Africa under color of national law and policy.

Between August, 1970 and December, 1973, the New York Times published at least 19 separate advertisements of employment opportunities available in the Republic of South Africa. Nearly half sought to employ persons for managerial positions in private industry. The remainder advertised openings on the faculties of various South African universities. The advertisements ranged in size from a short, six-line, one column notice to a full-sized, four column, large-print box display. Some recited lengthy job descriptions and employment-related qualifications; others did not. None of the advertisements contained references to race or to racially based discrimination. In fact, two advertisements for international corporations seeking general managers for South African subsidiaries referred to the corporations, perhaps incongruously, as equal opportunity employers. All of the employment opportunities were located within the Republic of South Africa. Interested applicants were to write to either a New York Times box number or to specified addresses in New York, Washington, London or in South Africa. In one instance, prospective employees were to arrange for a personal interview to take place in New York City by calling a listed New York City telephone number.

The American Committee on Africa wrote to the Advertising Acceptability Department of the New York Times on several occasions, complaining that "employment in the Republic of South Africa is subject to discrimination on the basis of race by law.” The Times continued to publish employment advertising for South African positions in reliance on its policy, as expressed in a newspaper editorial, that the Times "should keep its advertising columns open to all points of view, no matter how strongly it disapproves of them.” (The Freedom of Advertising, New York Times editorial, Dec. 28, 1961.)

On October 12, 1972, the American Committee on Africa, two other groups and one individual filed a complaint with the New York City Commission on Human Rights. As subsequently amended, the complaint alleged that "as a matter of law there exists in the Republic of South Africa systemic discrimination in employment based on race, color or national origin”, that the purpose and effect of these laws is to deny black and nonwhite workers equal access to jobs and to deny them equality of working conditions, and that advertisements for employment in South Africa express this discrimination. (Emphasis added.) The commission found probable cause to believe that the Times in publishing the advertisements aided in an unlawful discriminatory practice and that the Times knew or should have known of the South African policy of apartheid and its effects on employment practices. The Times moved to dismiss the complaint on the grounds that the commission was without jurisdiction to intrude on matters of foreign policy and that the commission could not enter an order which would violate the Times’ First Amendment rights. The motion was denied. A petition for a writ of prohibition based on similar contentions was dismissed by Supreme Court, New York County. (Matter of New York Times Co. v City of New York Comm. on Human Rights, 76 Misc 2d 17.)

At a commission hearing, copies of various South African statutes were introduced into evidence. Former South African attorneys, one white and one black, testified as to the nature and effect of these laws. The import of this testimony was that it is the official policy of the South African government to classify its people into three separate categories: white, Bantu (native African) and colored. With rare exceptions, only whites are permitted to hold supervisory or skilled positions, to attend college and to live in preferred areas. Whites are given preferential treatment in all facets of public and private accommodations; whereas, nonwhites may hold only menial jobs at poverty level wages, are required to live in restricted areas with substandard housing and are forced to utilize inferior public accommodations and facilities. The complainants introduced testimony of American blacks that the discriminatory, apartheid policy of the South African government is a matter of common knowledge in the black ‘community. Blacks would expect to be discriminated against in seeking employment in South Africa and, even if tendered employment, would not move to South Africa because of the oppressive living and working conditions to which nonwhites are subjected. This evidence was not disputed by the Times. Instead, the Times introduced evidence that many other Nations in Europe, Asia and Africa discriminate on the basis of race, religion or sex.

At the close of the proceedings, the commission found that it was not necessary to make any findings of fact. It concluded, from the undisputed evidence, that the extensive system of racial segregation and discrimination employed in the Republic of South Africa is well known and that the term "South Africa” "has come to have a denotative meaning, in the common understanding, other than its geographical reference —i.e., the principle of white supremacy”. The commission rejected the Times’ First Amendment and foreign policy arguments and ordered the Times to cease and desist from printing advertisements which seek employees for employment located in the Republic of South Africa.

Special Term granted the Times’ petition for review and set aside the commission’s order. The court ruled that the commission, in effect, had questioned the employment methods and practices of a foreign government and the commission’s jurisdiction did not extend to activities conducted within other countries. (79 Misc 2d 1046.) The Appellate Division affirmed the judgment of Special Term, holding that the "language of the advertisements is not such as to indicate an intent on the part of petitioner to participate in a program of discrimination.” (49 AD2d 851, 852.) The Appellate Division granted the commission permission to appeal to our court, certifying the existence of questions of law which the Court of Appeals ought to review. We would affirm the order of the Appellate Division but on other grounds.

Before proceeding to a discussion of the significant issues actually presented by this case, it is useful to point up the issues that are not presented and on which we express no view. It is not contended that the New York City antidiscrimination laws are an invalid exercise of the municipal police power. Nor is it contended that the application of such laws to international transactions would be an unconstitutional municipal regulation of foreign commerce. Similarly, we have not been presented with an argument that extraterritorial effect should be given to the laws of the Republic of South Africa on the ground that the legality of terms and conditions of employment should be measured by the law of the country of employment. Hence, our review is limited to a determination of whether there is support, as a matter of law, for the commission’s finding that the Times violated the antidiscrimination laws and whether such finding would be precluded by either principles relating to foreign policy or by principles relating to freedom of the press.

At the threshold, it is also necessary to discuss the relevant standard of review. The complainants and the commission contend that we are limited to a narrow scope of review and the dissent apparently accepts that view. We disagree. The findings of the New York City Commission on Human Rights are conclusive, if supported by sufficient evidence on the record considered as a whole. (Administrative Code of City of New York, § Bl-9.0.) Where the commission has made findings of fact, the sole question before the reviewing court is whether there is sufficient evidence in the record to support the administrative findings. (Matter of Pace Coll, v Commission on Human Rights of City of N. Y., 38 NY2d 28, 35.) However, the commission, in this proceeding, did not make any findings of fact. Rather, the commission’s determination was based on conclusions of law drawn from an undisputed set of facts. Indeed, the complainants’ complaint was itself predicated upon matters of law. Under these circumstances, it would be both wrong and inappropriate to apply the substantial evidence test. The issue is simply whether the commission properly analyzed the law and we hold that it did not.

The New York City antidiscrimination laws prohibit employers or employment agencies from printing or causing to be printed "any statement, advertisement or publication” which "expresses, directly or indirectly, any limitation, specification or discrimination as to age, race, creed, color, national origin or sex, or any intent to make such limitation, specification or discrimination, unless based upon a bona fide occupational qualification.” (Administrative Code, § Bl-7.0, subd 1, par [d].) It is unlawful "for any person to aid, abet, incite, compel or coerce the doing of any of the acts forbidden” by the terms of the antidiscrimination laws. (Administrative Code, § Bl-7.0, subd 6.) As a matter of law, we conclude that the advertisements printed in the Times did not express discrimination, directly or indirectly, and that the Times could not be held for abetting their publication.

By the very terms of the municipal ordinance, a violation occurs if an employer prints or causes to be printed an advertisement that contains an expression, direct or indirect, of discrimination. The advertisements complained of in this proceeding do not express any discrimination of any kind, directly or indirectly. The complainants, nevertheless, would draw an inference, as a matter of law, that since the location of the employment was a country that discriminates on the basis of color, advertisements for employment located within that country must, therefore, carry with them an implication of discrimination. However, the test under the advertising subdivision is not whether actual discrimination is practiced. The standard is whether the advertising expresses discrimination, directly or indirectly. The advertisements at issue here never once referred, even obliquely, to any discriminatory limitations.

There are, of course, cases which establish, quite rightly, the principle that the antidiscrimination laws cannot be avoided by the expedient of using carefully designed code words. For example, use of the words "selected clientele” in resort advertising cannot be sustained since, as a practical matter, this phrase indirectly expresses the practice of religious and color-based discrimination. (See Camp-of-the-Pines v New York Times Co., 184 Misc 389.) If an advertiser could use code words as a substitute for terms clearly proscribed by law, the law would be nullified for all practical purposes. (United States v Hunter, 459 F2d 205, 215, cert den 409 US 934.) Here, complainants argue that the very name of a particular country, South Africa, is a recognized code word for a system of discrimination practiced in that country. However, mere geographical reference to the situs of employment does not carry with it an expression of discrimination, directly or indirectly; nor does the reference to geographical location necessarily imply that the prospective employer engages, in New York, in practices required, approved, or condoned by the laws of South Africa. Moreover, complainants would blur the important distinction between code words, deceptive tokens added to coyly and subtly communicate discriminatory criterion, and essential employment information that the employer may legitimately communicate to a prospective employee. Thus, without setting forth the location of the prospective employment, an employment advertisement would be incomplete and without value to both the would be employer and the prospective employee. Code words are discriminatory additions to otherwise complete advertisements; the purpose is to signal the existence of an unlawful criterion. While employment location is an essential ingredient to complete lawful advertising and its mention is crucial to the advertisement, a discriminatory code word adds nothing but invidious unfairness. It is the code word, not the geographic reference, which expresses discrimination. Thus, mention of South Africa does not express discrimination, either directly or through an indirect deceptive and unnecessary code word. In addition, it may well be that employment solicitation at the place of solicitation, New York, is nondiscriminatory, while the actual discrimination occurs at the place of employment, South Africa. Indeed, complainants have not submitted any proof that any of the employers who advertised in the Times practiced discrimination in New York in seeking employees for South African employment. Even with respect to the South African universities, there is no evidence that such institutions, whether operated by the government or by private organizations, refused or have refused to consider the applications of nonwhite Americans, especially nonwhite New Yorkers. Crucial also is the fact that, in this instance, our inquiry, and that of the commission, is confined to employment-related discrimination and not to an analysis of an entire way of life.

As for the dissenters, it should be plain enough that the ordinance at issue here prohibits the expression, directly or indirectly, of discrimination in employment advertising. The Times may be held as an aider and abettor of discrimination only if it published advertisements that expressed discrimination. None of the advertisements do so.

More important, the contention that the term South Africa works a code word for discrimination is not at the heart of this case. The reality is that complainants seek to impose an economic boycott aimed at the present government of the Republic of South Africa. An aspect of the boycott is the sought-after prohibition against the publication of advertisements for employment opportunities in South Africa. Without expressing disapproval of the goal of the complainants and without expressing approval of the invidious practices of the government of the Republic of South Africa, we would conclude that a city agency was without jurisdiction to make and enforce its own foreign policy. ,

The government of the Republic of South Africa is, at the present, the legitimately constituted governmental authority for that country and has been recognized as such by our government. Although we believe, as a matter of principle, that the govérnments of all Nations should act in accord with natural justice, fairness and equity, it is beyond the province of the State courts, much less municipal agencies, to sit in review of the laws of foreign governments. ’’Every sovereign State is bound to respect the independence of every other sovereign State, and the courts of one country will not sit in judgment on the acts of the government of another done within its own territory. Redress of grievances by reason of such acts must be obtained through the means open to be availed of by sovereign powers as between themselves.” (Underhill v Hernandez, 168 US 250, 252.) Although State courts have ample authority to read, construe and apply the laws of a foreign country in a routine fashion, they may not launch inquiries into the righteousness of foreign law, thereby affecting "international relations in a persistent and subtle way”. (Zschernig v Miller, 389 US 429, 440.) Even long-standing State regulation of traditional fields of law, such as the rules governing the descent and distribution of estates, must fall by the wayside if enforcement of State regulations would "impair the effective exercise of the Nation’s foreign policy.” (389 US, at p 440.) The basis for this principle is that experience has established that real or imagined wrongs perceived by another government may create significant international disputes, perhaps even resulting in armed conflicts. (Hines v Davidowitz, 312 US 52, 64.) The peace and security of the United States has not been left to the whim of but one State whose actions would have consequences, perhaps dire, for all the States. The Federal Government represents the collective interests of all the States and it has been entrusted with "full and exclusive responsibility” for the conduct of foreign policy. (312 US, at p 63.) The Federal power must "be left entirely free from local interference”. (312 US, at p 63.)

The principle that States should not interfere with the foreign policy authority of the Federal Government has found frequent expression in our decisions. Indeed, the Supreme Court has described an early New York decision (Hatch v Baez, 7 Hun 596, 599), as having "foreshadowed” the classic case of Underhill v Hernandez (168 US 250, supra). (Banco Nacional de Cuba v Sabbatino, 376 US 398, 424.) Whether a foreign country has been recognized by our Government or not, it is impermissible for a State court to review foreign actions and policies. To do so would "’vex the peace of nations’”. The States may not bind the State Department lest unwillingly the Federal Government "would find itself involved in disputes that it might think unwise”. (Wulfsohn v Russian Republic, 234 NY 372, 376, app dsmd 266 US 580.) "The question is a political one, not confined to the courts but to another department of [the Federal] government. Whenever an act done by a sovereign in his sovereign character is questioned it becomes a matter of negotiation, or of reprisals or of war.” (234 NY, at p 376.)

It was beyond the ken of the city Commission on Humán Rights to enforce local antidiscrimination laws by imposing an economic boycott of the Republic of South Africa. In this very case, the commission conducted an inquiry that might have been considered offensive by the Republic of South Africa and which might have been an embarrassment to those charged with the conduct of our Nation’s foreign policy. The true danger is that if New York City could do this in one instance, it could do so in many instances. Each locality in each State may not adopt its own foreign policy. This would be disastrous, not only because of multiplicity and divergence of policies, but because local decisions are often influenced by pragmatic local considerations which are not necessarily controlling or even relevant to national policy as determined by the Federal Government at Washington.

If the national government deems it advisable to take action against the Republic of South Africa, it has ample means at its disposal. Moreover, the Federal authorities have an unrestricted number of options available, including the possibility of taking collective action with other Nations in the world community. However, this is not a matter of proper state judicial or administrative concern.

Finally, in view of our disposition of the case on other grounds, it is unnecessary to consider or decide the First Amendment issues advanced by the Times.

The order of the Appellate Division should be affirmed.

APPENDIX

The following are selected advertisements of the type complained of.

Jones, J. (concurring).

I agree that the order of the Appellate Division should be affirmed and concur in so much of the majority opinion as concludes, as a matter of law, that there was no prohibited expression of discrimination in the advertisements printed by the Times. I do not reach or consider the international relations or foreign affairs aspects of the case addressed in the majority opinion.

Fuchsberg and Cooke, JJ. (dissenting).

We would reverse the order of the Appellate Division and would reinstate and confirm the order of the City of New York Commission on Human Rights and grant the cross motions for enforcement of the order. The record before the commission was more than sufficient to support its determination that the advertisements were impermissibly discriminatory and that the discrimination was so pervasive that the remedial action ordered by the commission, though broad, was within its discretion.

Color discrimination in employment is deplorable; it is the duty of the courts to make sure that the salutory purposes of the legislative body in enacting the human rights law of the City of New York are not thwarted by a combination of a strict construction of the Administrative Code and a battle over semantics (cf. City of Schenectady v State Div. of Human Rights, 37 NY2d 421, 428). The code makes clear that neither color discrimination nor other "unlawful discriminatory practice” defined by it are to be permitted.

Thus, the Administrative Code of the City of New York forbids, as an "unlawful discriminatory practice,” the printing by any employer or employment agency of any statement, advertisement or publication "which expresses, directly or indirectly, any limitation, specification or discriminaion as to age, race, creed, color, national origin or sex, or any intent to make any such limitation, specification or discrimination, unless based upon a bona fide occupational qualification” (§ Bl-7.0, subd 1, par d). More pertinent, it is also "an unlawful discriminatory practice for any person to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this title [tit B—which includes § Bl-7.0], or to attempt to do so” (subd 6).

A review of South African law, as introduced before the commission and as there verified for meaning and application by expert testimony, shows it to be elaborate and all-embracing in its mandates for racial segregation. A few examples will suffice for illustrative purposes. South Africa’s Population Registration Act of 1950 requires racial registration and classification of all alien workers; the Group Areas Act of 1966 restricts all interracial property transactions or occupational changes so that whites and blacks will continue to work and live apart; the Factories, Machinery and Building Works Act of 1941 compels separate eating, lavatory and other amenities; Proclamation No. 329 of 1957 absolutely prohibits a black from holding a job as a "charge hand, executive, professional, technical, or administrative” employee or as a "manager or supervisor”; the Industrial Conciliation Act of 1956, which establishes white trade unions with collective bargaining power, excludes blacks.

In this case, the commission, under its heading of "Conclusions of Law”, found "that the advertisements do constitute 'an unlawful discriminatory practice * * * aid[ing or] abetting]’ the offending offer of employment by the employer or employment agency under Title B, Section Bl-7.0-1 (d) and (6)”, that "the advertisements in question '[express] * * * discrimination’ within the prohibition of the City Statute” and that "the advertisements do constitute 'aid[ing or] abet[ting]’ within the meaning of Section Bl-7.0-1 (d) and (6).” It pointed out, citing specific enactments, that "[e]ven a cursory reading of . the applicable foreign law establishes that the advertisements violate our statute in that the laws of the Republic of South Africa clearly provide for racial discrimination in hiring and in terms and conditions of employment in general”, that "[t]here was no evidence offered by Respondent to show that these clearly discriminatory laws and regulations are not in force or are not enforced” and that "[t]hus the evidence establishes that the employment opportunities offered by the advertisements are not available on a racially non-discriminatory basis and that Black citizens of New York City, who might avail themselves of such employment positions, would be subject to segregation in the facilities and accommodations of the workplace.”

The commission also stated that the evidence established that, among residents of New York City, particularly blacks, "the extensive system of racial segregation and discrimination in the Republic of South Africa is well known”, and that "South Africa” has acquired "a denotative meaning, in the common understanding, other than its geographical reference —i.e., the principle of white supremacy expressed in laws which require racial segregation in many areas of activity and in particular in employment.” In summary, the commission concluded that the advertisements for employment in South Africa under review "are expressive of discrimination and that their printing * * * is in violation of Administrative Code Section Bl-7.0”.

Since the findings of fact included in these expressions by the commission are supported by sufficient evidence on the record considered as a whole (see, e.g., majority opn, pp 348, 349), they are conclusive and should not be disturbed (Administrative Code, § Bl-9.0). In making those findings, it was not necessary that the commission detail all items of evidence (City of Schenectady v State Div. of Human Rights, 37 NY2d 421, 424, supra). Therefore, the majority’s explicit holding "that advertisements of employment opportunities located within the Republic of South Africa which merely refer to that country as the situs of the employment and which do not recite, on the surface, any discriminatory conditions do not express discrimination within the meaning of the New York City anti-discrimination laws” (emphasis added) would seem to overlook the reality that "[discrimination today is rarely so obvious, or its practices so overt that recognition of the fact is instant and conclusive” (State Div. of Human Rights v Kilian Mfg. Corp., 35 NY2d 201, 209) and that "code” words, while innocuous on their face, nonetheless effectively convey a message of discrimination. Accordingly, code words which achieve the connotative effect of communicating such discrimination may be dealt with as discriminatory, even where the denotative meaning of the words or phrases in issue is an innocent one (see United States v Hunter, 459 F2d 205, cert den 409 US 934; Camp-of-The-Pines v New York Times Co., 184 Misc 389 Hodgson v Approved Personnel Serv., 529 F2d 760).

To deal with that problem the prohibition contained in the Administrative Code applies to advertisements which "directly or indirectly” express any "discrimination as to age, race, creed, color, national origin or sex”. That means the commission was to look to fact and not facade and, in doing so in this case, it was well within its power to conclude that the universality of discrimination in employment in South Africa made the geographic reference in an advertisement seeking candidates for such employment more than just a reference to a place. An advertisement setting forth South Africa as the location of the employment clearly connotes, as effectively as code words, that "Only Whites Need Apply”. It also seems to us that it begs the question to place significance in the fact that the place name was part of an otherwise "complete lawful advertisement”. Obviously, a word which signals discrimination does so no less because it conveys other information as well.

To support its position, the majority recites the classic American statement of the Act of State Doctrine found in Underhill v Hernandez (168 US 250, 252) (p 352) and concludes that, whether a foreign country has been recognized by our Government or not, it is impermissible for a State court to review foreign actions and policies (p 353). But the Act of State Doctrine, in its traditional formulation, precludes courts in the United States from inquiry into the validity of the acts of a foreign government done within its own territory (Alfred Dunhill of London, Inc. v Cuba, 425 US 682, 697; Banco Nacional de Cuba v Sabbatino, 376 US 398, 427; French v Banco Nacional de Cuba, 23 NY2d 46, 52; Salimoff & Co. v Standard Oil Co., 262 NY 220, 224). Here, the commission is not reviewing acts of the Republic of South Africa or of its agents or representatives at all (cf. Alfred Dunhill of London, Inc. v Cuba, supra; French v Banco Nacional de Cuba, 23 NY2d 46, 52, supra). South Africa is not a party to this proceeding. Above all, the order of the commission makes no attempt to decide or determine the rights of South Africa to engage within that Nation in what we would regard as discrimination.

The essence of the Act of State Doctrine is that the proper conduct of foreign relations of any Nation requires respect for the act of any other sovereign state committed "within its own territory” (see David v Veitscher Magnesitwerke Actien Gesellschaft, 348 Pa 335, 345-346). The significant phrase "within its own territory” precludes inquiry by a court in the United States as to the validity of acts of foreign states affecting property located within, or contracts governed by the laws of such states; it does not bar inquiry affecting or purporting to affect property not located within, or contracts not governed by, the acting state, except where a treaty, law or public policy prevents such an inquiry (see United States v Pink, 315 US 203, 230; Zeevi & Sons v Grindlays Bank [Uganda], 37 NY2d 220, 228, cert den 423 US 866; Gonzalez v Industrial Bank [of Cuba], 12 NY2d 33, 39; Anderson v N.V. Transandine Handelmaatschappij, 289 NY 9, 19-20; Republic of China v Pang-Tsu Mow, 101 F Supp 646, affd in part and dsmd in part 201 F2d 195, cert den 345 US 925; Restatement, Foreign Relations Law of the United States 2d, § 43, Comment c; 45 Am Jur 2d, International Law, § 87; Act of State Doctrine, Ann., 12 ALR Fed 707, 775-776). No "treaty or other unambiguous agreement regarding controlling legal principles”, as mentioned in Sabbatino (376 US, at p 428), has been cited to act as a basis for exception here. There being no present policy of the executive branch of the United States Government (see US Const, 14th, 15th Arndts) requiring acquiescence in the United States in the discrimination practiced by the South African government, the well-established policy of New York State against such acquiescence is operative (Gonzalez v Industrial Bank [of Cuba], 12 NY2d 33, 39, supra; see Executive Law, § 290 et seq.).

It has also been held that the phrase "within its own territory” means that an Act of State that precludes inquiry must be one which has been executed within the acting state’s territory; otherwise, inquiry into its legality is not precluded (Victory Transp. v Comisaria General de Abastecimientos y Transportes, 336 F2d 354, 362-363, cert den 381 US 934). Here, the aiding or abetting of the unlawful discriminatory practice was not accomplished in South Africa, but in New York.

Moreover, the commission has not decreed that the South African government cease and desist its discrimination in South Africa, but has ordered a New York corporation, which is not the legal representative or agent of a foreign government at all and which publishes a newspaper in the City of New York, to cease and desist from printing advertisements which the commission has found aids and abets the discrimination, and thus itself constitutes an unlawful discriminatory practice within the prohibitions of section Bl-7.0 of the Administrative Code of the City of New York.

It also follows from the foregoing analysis that, whatever may have been the precipitating motivation of those who originally brought this matter to the official attention of the commission, the limited conduct which was the gravamen of the proceeding before the commission here simply was not a boycott and, therefore, the discussion of it as such by the majority is besides the point.

Finally, the newspaper’s well-articulated freedom of the press argument is also inapplicable. Even the most broadly defined concept of First Amendment rights, one which makes no distinction whatever between commercial and noncommercial speech (see Bigelow v Virginia, 421 US 809; Virginia Pharmacy Bd. v Virginia Consumer Council, 425 US 748), cannot serve to protect the publication of discriminatory material such as that before us now. In both of those recent cases, the United States Supreme Court took pains to preserve so much of Pittsburgh Press Co. v Human Relations Comm. (413 US 376) as was directed to the publication of discriminatory advertisements, and the rationale of the Pittsburgh case is fully applicable here.

Chief Judge Breitel and Judge Wachtler concur with Judge Jasen; Judge Jones concurs in a separate opinion in which Judge Gabrielli concurs; Judges Fuchsberg and Cooke dissent and vote to reverse in another memorandum.

Order affirmed, with costs.

      . Several of the advertisements are reprinted, for illustration purposes, in an appendix to this opinion.

      . The original complaint alleged that discrimination existed as "a matter of law and practice”. The complaint was subsequently amended to delete the words "and practice”.


author: Cooke, J.

text:
    Lora H. Klinger, Individually and as Administratrix of the Estate of Richard B. Klinger, Deceased, Appellant, v Jerry Dudley et al., Defendants and Third-Party Defendants-Respondents, and Frank Leone, Appellant, et al., Defendant. Frank Leone, Third-Party Plaintiff-Appellant, v Steven F. Smith et al., Third-Party Defendants-Respondents, et al., Third-Party Defendants. Joseph Valentino et al., Plaintiffs, v John H. Thompson et al., Defendants. Joseph Kaban, Appellant, v John H. Thompson et al., Respondents. Eugenia Kaban, Appellant, v John H. Thompson et al., Respondents. John H. Thompson et al., Third-Party Plaintiffs-Appellants, v Manhattan Boiler and Equipment Corporation et al., Third-Party Defendants-Respondents. (And Another Action.)
    Argued January 5, 1977;
    decided February 17, 1977

      James N. Hite, Buffalo, for Lora H. Klinger, appellant.

      William R. Blood, Jamestown, for Frank Leone, appellant.

      Irving C. Maghran, Jr., Buffalo, for Jerry Dudley and another, defendants and third-party defendants-respondents.

      John J. Sullivan, Jr., Buffalo, for Steven F. Smith and another, third-party defendants-respondents.

      Harry T. Constas and Charles F. McGuire, New York City, for Joseph Kaban and another, appellants.

      John H. Nelson, Mineola, for Manhattan Boiler and Equipment Corporation, third-party defendant-respondent.

      William J. Ferretti and John G. Logue, New York City, for Sophie Nosaniuk, third-party defendant-respondent.

      Philip Hoffer, Raymond J. MacDonnell, Rose L. Hoffer and Peter T. Affatato, New York City, for John H. Thompson and another, defendants.
   Cooke, J.

We consider here yet another issue arising from the apportionment of liability permitted under Dole v Dow Chem. Co. (30 NY2d 143). The issue has presently arisen in two multiple-party cases, the relevant facts of which are recited below.

Klinger v Dudley

Plaintiff Lora H. Klinger brought an action for the wrongful death of her husband Richard B. Klinger who died as a result of injuries sustained in an automobile accident which occurred on October 29, 1966. Plaintiff sued: (1) Wayne Cookson, the driver, and Elmo Cookson, the alleged owner, of one of the vehicles involved in the accident; (2) Jerry and Julius Dudley, the driver and owner of another vehicle involved; and (3) Frank Leone, the owner-driver of yet another vehicle involved in the accident. Thereafter, defendant Leone (1) cross-claimed against defendants Dudley and Cookson, (2) impleaded, as third-party defendants, Steven Frank Smith and Charlotte Smith, and (3) impleaded, as third-party defendants, Donald and Francis Hammond.

Prior to trial, the Appellate Division, Fourth Department [40 AD2d 1078], considering a preclusion order, granted a motion for summary judgment dismissing plaintiffs complaint against defendants Dudley, who nevertheless remained in the action as third-party defendants pursuant to defendant Leone’s cross claim against them. The jury returned a verdict of no cause of action in favor of defendants Cookson, who were also third-party defendants, and likewise in favor of third-party defendants Hammond. With respect to the remaining parties, defendant Leone, third-party defendants Dudley, who, as noted, succeeded earlier in having plaintiffs complaint against them dismissed, and third-party defendants Smith, who were never sued by plaintiff, the jury returned a verdict of $300,000 and apportioned liability among them in the following proportions: Leone, 65%; Dudleys, 25%; and Smiths, 10%.

Thereafter the insurance carrier of defendant Leone paid the $10,000 limit of its policy. Leone apparently has no reachable assets. Plaintiff then sought to recover against third-party defendants Dudley and Smith. In this regard, plaintiff filed two judgments, both of which were subsequently vacated, the first of which, in addition to seeking recovery against defendant Leone, also included decretal paragraphs ordering the assignment to plaintiff of defendant Leone’s judgments as third-party plaintiff against third-party defendants Dudley and Smith, and the second of which adjudged that plaintiff recover, not only against defendant Leone, but also against third-party defendants Dudley and Smith.

After the vacating of each of these judgments, a third was entered which provided, inter alia, that plaintiff recover of defendant Leone the full $300,000 verdict plus interest, and that Leone as third-party plaintiff recover of third-party defendants Dudley and Smith the sums representing their percentage of liability as found by the jury. Upon appeal, the Appellate Division, Fourth Department, unanimously modified, on the law, ordering that this third judgment be modified to provide that payment by the third-party defendants Dudley and Smith is conditioned upon defendant Leone paying "the full amount of the judgment rendered against him”, and, as modified, the judgment was affirmed. Thus, plaintiff finds herself in a situation where defendant Leone has paid only $10,000 of a $300,000 (plus interest) judgment against him and is apparently without other assets, and where defendant Leone as third-party plaintiff is precluded, until he makes further payments, from recovering any amounts from third-party defendants Dudley and Smith, which amounts would be available to satisfy plaintiff’s judgment against defendant Leone,

Valentino v Thompson

Plaintiffs Joseph Valentino and Joseph Kaban were passengers in a motor vehicle owned by their employer, Manhattan Boiler & Equipment Corporation (hereinafter referred to as Manhattan Boiler), which vehicle was in an accident with another vehicle while being operated by their coemployee, Andre Nosaniuk, who died as a result of the accident. The other vehicle was owned by John H. Thompson and operated by Ralph Mazza, the latter dying as a result of the accident. Plaintiffs Valentino and Kaban, and their respective spouses, each brought actions against the owner, John H. Thompson, and the administrator of the estate of Ralph Mazza, the operator of the vehicle which collided with that in which plaintiffs were passengers. Since, however, plaintiffs’ injuries arose out of and in the course of their employment, workmen’s compensation constituted plaintiffs’ exclusive remedy against their employer, Manhattan Boiler (see Workmen’s Compensation Law, § 11), and against their coemployee, Andre Nosaniuk, or his estate (see Workmen’s Compensation Law, § 29, subd 6). Defendants Thompson and the representative of Mazza’s estate, however, impleaded plaintiffs’ employer and the representative of the coemployee’s estate as third-party defendants.

After trial, the jury returned verdicts in favor of each of the plaintiffs and their spouses, verdicts totaling $632,500, and apportioned liability as follows: 75% against defendants Thompson and the administrator of Mazza’s estate and 25% against third-party defendants Manhattan Boiler and the administratrix of Nosaniuk’s estate. A judgment was then entered in favor of each plaintiff against defendants Thompson and the administrator of the Mazza estate in the full dollar amount of the jury verdict as to damages, and in favor of said defendants as third-party plaintiffs against third-party defendants Manhattan Boiler and the administratrix of the Nosaniuk estate in a dollar amount computed in accordance with the jury’s apportionment of liability. The Trial Justice, however, resettled the judgment, upon motion of the third-party defendants, to provide that the defendants shall be entitled to judgment against the third-party defendants upon payment by said defendants to the plaintiffs of more than their proportionate share of the judgment. Plaintiffs Kaban appealed and the Appellate Division, Second. Department, affirmed and granted leave to appeal to this court.

Similar to the situation of the plaintiffs in the Klinger v Dudley actions (discussed, supra), plaintiffs have recovered $10,000 in insurance proceeds from coverage protecting each of the defendants Thompson and the Mazza estate, for a total of $20,000, and both defendants apparently have no reachable assets. Moreover, plaintiffs are effectively precluded from recovering anything further since such defendants have not paid more than their proportionate share of the judgment, and hence, in accordance with the resettled judgment, such defendants may not recover against the third-party defendants.

Discussion

We agree in principle with the holdings of the Appellate Divisions of the Fourth and Second Departments in each of the instant matters, but make certain somewhat technical modifications of the orders and judgments, as detailed hereinafter.

Although Dole v Dow Chem. Co. (30 NY2d 143, supra) created new rights for defendants, its effect on plaintiffs is indirect and incidental (see Siegel, Practice Commentaries, McKinney’s Cons Laws of NY, Book 7B, CPLR, C3019:34, p 236). Indeed, Kelly v Long Is. Light. Co. (31 NY2d 25) made clear that Dole did not "change the plaintiffs right to recover against any joint tort-feasor in a separate or common action the total amount of his damage suffered and not compensated” (p 30). The same is true where the plaintiff seeks an enlargement of his rights because of a Dole apportionment. The reason, as suggested in Kelly, that a plaintiffs rights are not affected by Dole is that generally a plaintiff is free to sue, and after favorable judgment collect against, any or all tortfeasors as he sees fit. Moreover, if a plaintiff has not elected to sue a particular tort-feasor, and that tort-feasor is subsequently impleaded as a third-party defendant by a tort-feasor plaintiff has elected to sue, the plaintiff may ordinarily amend his complaint to assert a claim he, plaintiff, has against such third-party defendant (CPLR 1009).

In certain instances, however, a plaintiff is unable or simply fails to sue a particular tort-feasor. For example, in the Valentino v Thompson actions (discussed, supra) plaintiffs were prevented by the Workmen’s Compensation Law from maintaining an action against their employer (see Workmen’s Compensation Law, § 11) or the estate representative of their coemployee (see Workmen’s Compensation Law, § 29, subd 6). On the other hand, in the Klinger v Dudley actions (also discussed, supra), plaintiff’s complaint against defendants Dudley was dismissed and plaintiff never sued third-party defendants Smith.

In any of these instances, the third-party defendant may be found culpable under a Dole apportionment by the jury even though the plaintiff has not sued such third-party defendant. This situation creates no problem where the tort-feasors sued by the plaintiff (hereinafter sometimes referred to as the "main defendants”) pay an amount to plaintiff in excess of their Dole share; in that instance plaintiff is generally unaffected, although the main defendants, as third-party plaintiffs, may recover against the third-party defendants. The problem arises, however, where the main defendants are unable to pay their Dole share—the situation confronting us in the instant matters.

Plaintiff Klinger argues that these third-party defendants should not be permitted to escape liability because of the limited resources of defendant Leone. The fact remains, however, that, as this case has developed, these third-party defendants are not liable to plaintiff Klinger. Third-party defendants Dudley succeeded in having plaintiff’s complaint against them dismissed and hence plaintiff no longer has a cause of action against them (cf. Slater v American Min. Spirits Co., 33 NY2d 443). Similarly, since plaintiff Klinger for whatever reason never sued the Smiths, plaintiff has lost her opportunity to make a claim against them.

That the jury apportioned liability among defendant Leone and third-party defendants Dudley and Smith does not enlarge plaintiff’s claim. The jury merely determined fault and not the plaintiff’s rights. Plaintiff’s rights against the third-party defendants had already been lost prior to trial, and the jury verdict cannot serve to resurrect any rights that have been lost. Nevertheless, plaintiff Klinger seeks to recover indirectly from third-party defendants Dudley and Smith; that was the purpose of the judgment before us on appeal, which judgment provided, prior to modification by the Appellate Division, that defendant Leone as third-party plaintiff recover a dollar amount from the third-party defendants, which amount would be available to plaintiff.

In this regard, it is contended that plaintiff Klinger should, by assignment from defendant Leone, have a right to the dollar amount of the percentage of the jury verdict apportioned to the third-party defendants even though defendant Leone has not paid to plaintiff an amount in excess of his proportionate share of the judgment. We disagree. Although a main defendant may assert his claim for contribution prior to the payment of any amount to the plaintiff (McCabe v Queensboro Farm Prods., 22 NY2d 204, 208; see CPLR 1403, L 1974, ch 742, eff Sept. 1, 1974), this claim does not entitle a main defendant to contribution until payment by such defendant to plaintiff of an amount in excess of his proportionate share of the judgment (see and compare CPLR 1402, L 1974, ch 742, § 1, eff Sept. 1, 1974, with former CPLR 1401 [prior to Dole], as amd by L 1964, ch 388, § 5; see, also, 2A Weinstein-KornMiller, par 1402.01, pp 14-71, 14-72, relying on Adams v Lindsay, 77 Misc 2d 824; cf. Musco v Conte, 22 AD2d 121, 125-126), unless such defendant’s payment to plaintiff, though not in excess of his proportionate share, is in full satisfaction of the judgment (see Rock v Reed-Prentice Div. of Package Mach. Co., 39 NY2d 34, discussed, infra).

Plaintiffs Kaban in the Valentino v Thompson actions present a somewhat different picture because, unlike plaintiff Klinger who lost whatever rights she had against the third-party defendants, a tort action by these plaintiffs against the third-party defendants was barred because of the Workmen’s Compensation Law. As with plaintiff Klinger, it is urged by these plaintiffs that it is violative of the purpose and spirit of the Dole decision to allow third-party defendants to evade their proportionate liability simply because the main defendants cannot satisfy their proportionate share of liability to the plaintiffs.

As does plaintiff Klinger, these plaintiffs seek to use the main defendants’ status as third-party plaintiffs as a means to recover indirectly from the third-party defendants—something plaintiffs cannot accomplish directly. In this respect, plaintiffs urge that the Dole concept of apportioned liability should be implemented on the basis of "indemnification” against liability rather than "indemnification” against loss by the main defendants.

Plaintiffs Kaban further contend that the "indemnity against loss theory” is really an anomaly in a Dole situation since the third-party defendant’s wrong is "actually” to the plaintiff and not to the main defendant. In support of this contention, plaintiffs quote from Kelly v Diesel Constr. Div. of Carl A. Morse, Inc. (35 NY2d 1, 7) wherein it was stated: "In classic and correct terminology, the one who should pay ultimately for his actual fault is primarily liable. The one who must pay because of first instance liability to third parties but who ought to be able to recover from one guilty of actual fault, is secondarily liable”.

This contention must be rejected. Kelly v Diesel Constr. Div. of Carl A. Morse, Inc. (supra) permitted a general contractor made liable in tort to the plaintiff by statute to recover from one who was found solely liable for the accident. The quoted portion of the decision there related to the fact that while formerly active tort-feasors (such as defendants Thompson and Mazza or the representative of his estate) would have been unable to implead other tort-feasors (such as plaintiffs’ employer and coemployee), Dole had changed that result. Thus, contrary to the assertion made, the case manifests that the wrong that Dole remedied was one to tort-feasors, and not to plaintiffs.

That the workings of fate result in plaintiffs Kaban being limited to a recovery under workmen’s compensation and a relatively small amount of insurance proceeds from main defendants Thompson and the administrator of Mazza’s estate should not be a basis for allowing an indirect recovery by plaintiffs against the employer and coemployee in this case. The same may be said regarding the contention of plaintiff Klinger who unfortunately recovered an even smaller amount of insurance proceeds from defendant Leone. To permit a further recovery to these plaintiffs by means of allowing the respective main defendants to recover from third-party defendants amounts such main defendants had not yet paid would be, in effect, the casting aside of established principles codified in the pleading statutes (see CPLR 1402, L 1974, ch 742, § 1, eff Sept. 1, 1974, and former CPLR 1401, as amd by L 1964, ch 388, § 5). To some, this result may seem unfair, but in fact it is in keeping with the events as they have unfolded. Plaintiffs Kaban were entitled to recovery against the employer and the estate of their coemployee under workmen’s compensation, and plaintiff Klinger lost or waived whatever rights she had against third-party defendants Dudley and Smith. That these plaintiffs were unable to recover the large verdicts against the respective main defendants results from the particular financial circumstances of those defendants, with the law playing only an incidental part.

For the foregoing reasons, we agree that these' main defendants may not recover against a third-party defendant until such main defendants have paid the respective plaintiffs an amount in excess of their Dole share of the judgments. Our conclusion is not altered by our holding in Rock v Reed-Prentice Div. of Package Mach. Co. (39 NY2d 34, supra) because there, although the defendant seeking contribution had paid less than its Dole share, such payment was in full satisfaction of the judgment. In this respect, even if the payments by the main defendants in the instant matters were in full satisfaction of the judgments, the holding in Rock (supra, at pp 41-42) would only entitle these main defendants to recover from the third-party defendants a percentage of the amount actually paid by such main defendants, which percentage amount in both of the instant matters is relatively small when compared to the respective jury verdicts.

In conclusion, as noted earlier, certain modifications of the orders and judgment appealed from are necessary. The Appellate Division, Fourth Department, in its order and judgment conditioned payment to defendant Leone solely on his payment of "the full amount of the judgment rendered against him”. There should be modification to provide that any recovery by defendant Leone is conditioned upon payment by him to plaintiff of more than his proportionate share of the judgment. In addition, to reflect the holding in Rock (supra), the order of the Second Department, as well as the order and judgment of the Fourth Department, should be modified to provide that recovery by the main defendants against the third-party defendants may also be permitted upon payment by such main defendants of an amount in full satisfaction of the judgment.

Accordingly, in Klinger v Dudley, the order and judgment of the Appellate Division, Fourth Department, should be modified so as to provide that the second and third ordering paragraphs of the judgment of Supreme Court, Chautauqua County, be modified to provide that payment to defendant by the third-party defendants is conditioned upon payment by defendant to plaintiff of more than his proportionate share of the judgment, or an amount in full satisfaction of the judgment, and, except as so modified, said order and judgment of the Appellate Division, Fourth Department, are affirmed, without costs. In Valentino v Thompson, the order of the Appellate Division, Second Department, should be modified so as to provide that the third and seventh adjudging paragraphs of the amended judgment of the Supreme Court, Queens County, be modified to provide that the third-party plaintiffs, or either of them, shall also be entitled to payments by the third-party defendants upon payment by said third-party plaintiffs, or either of them, to plaintiffs of an amount in full satisfaction of the judgment and, except as so modified, said order is affirmed, without costs.

Chief Judge Breitel and Judges Jasen, Gabrielli, Jones and Wachtler concur; Judge Fuchsberg taking no part.

In each case: Order modified, without costs, in accordance with the opinion herein and, as so modified, affirmed.

      . Subsequently, Mrs. Elmo Cookson was substituted by stipulation in place of Elmo Cookson and, upon the death of Wayne Cookson, the administrator of his estate was substituted as a party defendant.

      . The causes of action asserted by plaintiffs Valentino were settled and their appeal to the Appellate Division was withdrawn.


text:
    The People of the State of New York, Appellant, v Izak Fremd, Respondent.
    Argued January 7, 1977;
    decided February 22, 1977

      Morris H. Schneider, Corporation Counsel (Stephen Jenkins of counsel), Long Beach, for appellant.

      Matthew Maraskin, James J. McDonough and Eugene Murphy, Mineola, for respondent.
   Cooke, J.

The People appeal from an order of the Appellate Term, Ninth and Tenth Judicial Districts, which modified, on the law, a judgment of the City Court of the City of Long Beach, convicting defendant upon a plea of guilty, of violations of the Municipal Code of the City of Long Beach, under an information containing 10 counts, and sentencing him to pay fines totaling $1,050 and to serve two days in jail. The modification consisted in a reduction of the $350 fine imposed at City Court under Count X to $250. The order of Appellate Term should be affirmed, though on a different ground than that considered in its memorandum decision.

The information of a building inspector, in pertinent part, charged that defendant (and another) "on and from October 21, 1971 to and including April 11, 1972 at premises No. 73 East Chester Street, Long Beach”.

COUNT X

"did wilfully, wrongfully and unlawfully in the first floor apartment of said premises fail to maintain the grounds and structure so as to be free of insects, vermin and rodent harborage and infestation to wit: the basement is infested with roaches in violation of Chap. 10, Art. 11, Section 10-1116 D-l of the Municipal Code of the City of Long Beach.” Under the Code of Ordinances of the City of Long Beach, the maximum fine for each violation of any provision of the rehabilitation and conservation code, building code or zoning ordinance of the City of Long Beach, or the commission of any nuisance, is $250. As noted, the fine imposed at City Court was $350 in respect to Count X.

Appellate Term, in modifying, stated that the City of Long Beach was not authorized to adopt an ordinance providing for cumulative penalties for one continuing violation, calling attention to People v Briary Improvement Corp. (77 Misc 2d 797, affd 34 NY2d 788) and Incorporated Vil. of Mill Neck v Fronsdal (39 AD2d 549). Under subdivision 22 of section 20 of the General City Law, subject to the Constitution and general laws of this State, the City of Long Beach is empowered "[t]o regulate by ordinance any matter within the powers of the city, and to provide penalties, forfeitures and imprisonment to punish violations thereof’. Every city is granted the "power to regulate, manage and control its property and local affairs” and "all the rights, privileges and jurisdiction necessary and proper for carrying such power into execution” (General City Law, § 19). Under the umbrella of this authority, section 13-10 (a) of the Code of Ordinances of the City of Long Beach provides: "Any person who shall violate any provision of either the property rehabilitation and conservation code, building code or zoning ordinance of the City of Long Beach, or commit any nuisance, shall be guilty of a violation punishable for each violation by a fine not exceeding two hundred fifty dollars ($250.00), or by imprisonment not exceeding fifteen (15) days, or by both such fine and imprisonment. Each day such violation continues shall constitute a separate violation”(emphasis supplied). The mere fact that the ordinance provides for a separate violation for each day of its continuance does not result in invalidity since, in the absence of a showing of impossibility of compliance, "the courts have long sustained a pyramiding of penalties as valid means of control” (Oriental Blvd. Co. v Heller, 27 NY2d 212, 220).

People v Briary Improvement Corp. (supra), apparently relied upon by Appellate Term, dealt with a sentence imposing a fine of $25 for each of 108 continuous days under a zoning ordinance of the City of Yonkers, a second class city, and held that under section 42 of the Second Class Cities Law such a city was not authorized to adopt an ordinance providing cumulative penalties for one continuing violation. Long Beach is not a second class city (Second Class Cities Law, § 4; 1965 Opns Atty Gen 116; NY Legis Manual, 1940, p 1364) and, hence, Briary is not determinative here. Incorporated Vil. of Mill Neck v Fronsdal (supra), the second decision cited by Appellate Term, was concerned with the power of a village to impose cumulative penalties for a continuous inseparable offense and was predicated on section 93 of the Village Law, the $250 maximum of which "for each violation” was viewed as limiting the amount for which a transgressor may be penalized for each separate and distinct offense against the zoning laws. The enabling legislation from which the City of Long Beach derives its power (General City Law, § 20, subd 22) contains no such limitation.

The more difficult problem is that under Count X defendant was originally fined an amount in excess of the ordinance maximum of $250 for "each violation”, apparently on the concept that, since the information alleged a violation from October 21, 1971 to April 11, 1972 and since the Long Beach Code of Ordinances provides that each day such a violation continues constitutes a separate violation, the information charged more than one violation.

As in the case of an indictment, and subject to the rules of joinder applicable to indictments, two or more offenses may be charged in separate counts of an information (CPL 100.15, subd 2; Denzer, Practice Commentary, McKinney’s Cons Laws of NY, Book 11 A, CPL 100.15, p 372). An indictment must charge at least one crime and may, in addition, charge in separate counts one or more other offenses, provided that all such offenses are joinable pursuant to the principles prescribed in CPL 200.20 (subd 2) (CPL 200.20, subd 1). Under paragraph (a) of said subdivision 2, two offenses are "joinable” when they are based upon the same act or upon the same criminal transaction, as that term is defined in CPL 40.10 (subd 2). There, a criminal transaction is defined as "conduct which establishes at least one offense, and which is comprised of two or more or a group of acts either (a) so closely related and connected in point of time and circumstance of commission as to constitute a single criminal incident, or (b) so closely related in criminal purpose or objective as to constitute elements or integral parts of a single criminal venture.” Since the continuance of the alleged violation for each day constituted a separate violation under the ordinance and since each such violation was based on the same act or criminal transaction, each of the violations was joinable with others in the same information. Here, however, as to the offenses or acts charged in Count X, there was only one count, not separate counts, and it was not permissible to punish defendant as if he was charged with more than one count to which he pleaded guilty. Accordingly, the maximum imposable on defendant is the maximum for one count—$250.

We need not pass on whether Count X is defective or void for duplicity (see CPL 200.30; People v Richlin, 74 Misc 2d 906; People v Murray, 32 Misc 2d 757), since defendant is precluded at this juncture from relief in that respect, even if warranted, because of his failure to cross-appeal to the Court of Appeals (People v Graham, 36 NY2d 633, 638; Pitler, New York Criminal Practice Under the CPL, pp 817-818 [1975 Cum Supp, pp 344-345]; cf. People v Wilkins, 28 NY2d 213, 220, n 3). Indeed, defendant’s brief concludes with a request that the judgment of Appellate Term be affirmed.

Accordingly, the order of the Appellate Term should be affirmed.

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

Order affirmed.