author: Burke, J. Desmond, J. (dissenting).

text:
    The People of the State of New York, Appellant, v. Henry Freudenberg, Respondent.
    Argued October 15, 1958;
    decided January 22, 1959.

      Daniel V. Sullivan, District Attorney (Walter E. Dillon and Irving Anolik of counsel), for appellant.
    I. The claim asserted by defendant that there had been a deprivation of counsel, in violation of his constitutional right, was clearly and convincingly shown by the available stenographic minutes of the 1937 proceedings, as amended, to be false. (People v. Cooper, 307 N. Y, 253; People v. Oddo, 283 App. Div. 497; People v. Grieshaber, 285 App. Div. 958; People ex rel. Asaro v. Morhous, 268 App. Div. 1016; People v. Fisher, 223 N. Y. 459; People ex rel. G00arrison v. Wilson, 176 Mise. 1040.) II. Since an appeal from the judgment of conviction was an adequate judicial corrective process, defendant could not invoke coram nobis. (Matter of Lyons v. Goldstein, 290 N. Y. 19; People v. Sullivan, 3 N Y 2d 196; Matter of Hogan v. Court of Gen. Sessions, 296 N. Y. 1; Carter v. Illinois, 329 U. S. 173; Mooney v. Holohan, 294 U. S. 103; People v. Silverman, 3 N Y 2d 200; People v. Eastman, 306 N. Y. 658; Matter of Morhous v. Supreme Court, 293 N. Y. 131; People v. Marincic, 2 N Y 2d 181.) III. The Magistrate presiding at the coram nobis hearing in the matter at bar did so without color of right or legal sanction. (Matter of Hogan v. Supreme Court, 295 N. Y. 92; Matter of Morhous v. Supreme Court, 293 N. Y. 131; People v. Gersewitz, 294 N. Y. 163; People v. Bradner, 107 N. Y. 1; People v. Citarelli, 247 App. Div. 53; Robinson v. Oceanic Steam Nav. Co., 112 N. Y. 315; Dudley v. Mayhew, 3 N. Y. 9; Wheelock v. Lee, 74 N. Y. 495.)

      Martin S. Friedman and Richard D. Friedman for respondent.
    I. City Magistrate’s Court sitting as a Court of Special Sessions has the power to entertain an application in the nature of a writ of error coram nobis. (Matter of Hogan v. Court of Gen. Sessions, 296 N. Y. 1; Matter of Hogan v. Supreme Court, 295 N. Y. 92; People v. Eastman, 306 Y. 658; People v. Wurzler, 300 N. Y. 344; People v. McCullough, 300 N. Y. 107; People v. Gersewitz, 294 N. Y. 163; Matter of Morhous v. Supreme Court, 293 N. Y. 131.) II. Defendant has uncontrovertibly established a clear disregard of his constitutional rights. (People v. Johnston, 187 N. Y. 319; People ex rel. Hall v. Munson, 83 Misc. 308; People v. McBride, 202 Misc. 544; People v. Marincic, 2 N Y 2d 181; People v. Malmud, 4 A D 2d 86.) III. The instant case is a proper case for the use of a motion in the nature of a writ of error coram nobis. (Matter of Bojinoff v. People, 299 N. Y. 145; People v. Koch, 299 N. Y. 378; People v. McLaughlin, 291 N. Y. 480; People v. Langan, 303 N. Y. 474; People v. Richetti, 302 N. Y. 290; Matter of Lyons v. Goldstein, 290 N. Y. 19; People v. Silverman, 3 N Y 2d 200; People v. Shapiro, 3 N Y 2d 203.)
   Burke, J.

The primary question presented is whether the defendant has made out a ease for coram nobis relief.

It is axiomatic that defendant’s right to this relief depends upon proof that the trial court, in the original proceedings, did not adequately inform defendant of his rights.

The facts as found and affirmed by the courts below in this proceeding for a writ of error coram nobis are, of course, not reviewable here. But once these facts have been determined, a question of law alone remains as to whether or not the evidence is sufficient to establish noncompliance with statutory regulations. (People v. Banner, 5 N Y 2d 109; People v. Marincic, 2 N Y 2d 181; People v. Sadness, 300 N. Y. 69, 73.)

The record indicates that defendant had been arraigned for pleading on April 7, 1937. On that day an adjournment was granted for trial in the language of the Magistrate, in the Driving while Intoxicated ” court and bail continued.

Assuming arguendo that we are not bound by the presumption of regularity in respect to the proceeding at the time of arraignment and pleading, the minutes of the trial show beyond conjecture that the defendant was informed of his rights to counsel and to an adjournment, and that he understood the monitions of the court. At the commencement of the trial on the adjourned date, April 15,1937, the trial court informed the defendant that he had a right to decide whether or not to proceed with the case and to ask for an adjournment for the purpose of securing the services of a lawyer or for producing witnesses. The defendant replied, I want it for today”. Thus the minutes indicate that the presiding Magistrate was careful to assure himself before the commencement of the trial on April 15, 1937 that defendant understood his rights, even though he was entitled to believe that defendant had already been so instructed at the time of arraignment and pleading on April 7, over a week before, at which time defendant obviously pleaded “ not guilty

The Magistrate, sitting as a Court of Special Sessions, relied upon section 699 of the Code of Criminal Procedure, in granting the coram nobis petition. However, the provision of this section, which imposes upon the court the duty to inform defendant of Ms right to counsel, was enacted three years after the conviction of defendant herein (L. 1940, ch. 423). The language of section 699 prior to its amendment contained no such provision ; the duty to inform defendant of his right to counsel in criminal proceedings prosecuted without indictment rested upon general State constitutional provisions. Notwithstanding the defect in section 699, the Magistrate in the original trial, in accordance with the usual practice of Magistrates sitting as Courts of Special Sessions (People v. Hildebrandt, 16 Misc. 195), fully informed defendant of his rights.

Clearly, then, there is indisputable evidence of specific adherence to the rules set forth in People v. Marincic (supra).

It is evident from the affidavit submitted by the defendant that he knew the character of the charge at the time of his arrest and his booking at the Police Precinct. Furthermore, although defendant was aware of the charges as the minutes of the arraignment show, the Magistrate again stated, at the time of the trial, that defendant was charged with driving while intoxicated. This statement is sufficiently detailed to comply with the requirement of informing the defendant of the charge against him. Proof of the defendant’s full understanding of the statement of the court is found at the close of the trial in defendant’s reply to the court’s reminder that the court had given him an opportunity to postpone the trial and to secure the services of counsel. Defendant retorted that he did not ask for a postponement because he “ wasn’t guilty of being drunk”. To form this judgment that he “ wasn’t guilty ”, defendant necessarily negatives the proposition that he did not understand the nature and scope of the charge against him.

From the facts before us we find as a matter of law defendant failed to establish noncompliance with the relevant provisions of the Code of Criminal Procedure. Hence the order of the Appellate Division should be reversed, and the petition seeking the writ of error cor am nobis should be denied.

Desmond, J. (dissenting).

Before a New York City Magistrate sitting as a Court of Special Sessions, defendant Freudenberg brought on a coram nobis motion to vacate a judgment entered in 1937 in a New York City Magistrate’s Court sitting as a Court of Special Sessions which had convicted defendant of the crime of driving an automobile while intoxicated. His alleged grounds for relief were that in the 1937 proceedings he had not been properly advised of the charges against him and did not know and was not informed by the court that he had a right to be represented by counsel. After a trial of those allegations the Magistrate granted the motion and made an order vacating the 1937 judgment and ordering the remission of the fine then paid by defendant. The People appealed to Appellate Division, First Department, which affirmed with one Justice dissenting. The Appellate Division majority held that this City Magistrate, although he was not the one before whom the 1937 case was tried, had power as a Court of Special Sessions to exercise coram nobis jurisdiction as to that conviction. The dissent expressed the view that there was no statute granting to a City Magistrate the power to exercise coram nobis jurisdiction as a Court of Special Sessions.

I will take up the People’s points in this order: first, that the Magistrate acted without authority; second, that coram nobis was not available since defendant could have appealed from his conviction, and, third, that his assertions as to denial of his rights in the 1937 proceedings were conclusively shown by the stenographic records to be false.

As to the jurisdiction of this Magistrate sitting as a Court of Special Sessions to hear this motion, there is no statute which in terms confers that authority although it is, of course, settled that all courts having original criminal jurisdiction have coram nobis powers (see Matter of Hogan v. Court of Gen. Sessions, 296 N. Y. 1). Under the New York City Criminal Courts Act (§ 131, subd. 3), unless either party demands trial before a three-Justice Special Sessions Court, a City Magistrate can exercise all the ‘1 powers and jurisdiction of the court of special sessions ’ ’. Since a Magistrate so sitting has the power to grant a new trial under the cited subdivision and since a coram nobis application is to be made not to the same Judge but to the same court where the trial was had, the Appellate Division was right here in holding that this Magistrate could entertain the motion.

The People’s second point argues that the alleged deprivations of right alleged by defendant appear on the face of the trial record and so would necessarily have had to be raised by appeal. We have, however, held that a deprivation of constitutional rights may be the subject of coram nobis proceedings even though the facts thereof are shown in the record and even though there could be an appeal (see, for instance, People v. Koch, 299 N. Y. 378). In People v. Silverman (3 N Y 2d 200, 202) we wrote this:

If a trial was forced upon defendant without an adequate opportunity for his counsel to prepare a defense, then coram nobis lies (People v. Koch, 299 N. Y. 378) even though an appeal would lie from the judgment (People v. McLaughlin, 291 N. Y. 480; People v. Snyder, 297 N. Y. 81).”

Elsewhere in that same Silverman opinion it is stated as an exception to the general rule that “ Judicial interference with the right to counsel guaranteed to defendant by- law may warrant the extraordinary remedy of coram nobis, even though the error appears on the face of the record [citing cases].”

The third and final question is whether plaintiff made out a case for coram nobis relief. This is the rather unusual case where the trial court has credited defendant’s contentions and given him coram nobis relief and the Appellate Division has affirmed. Since this decision was on the facts and supported by the record we cannot disturb it (see People v. Heimowitz, 309 N. Y. 679).

There was accepted in evidence on this coram nobis trial the stenographer’s minutes in the 1937 proceedings. It appears that when defendant obtained the 1937 minutes from the stenographer before commencing this coram nobis proceeding there did not appear in these minutes several lines printed in this record as part of those 1937 minutes. In other words, defendant’s coram nobis petition cited the minutes as originally furnished to him and swore that he was never advised of his right to counsel. However, at the coram nobis trial the stenographer who acted in 1937 testified that the minutes as furnished todefendant were incomplete and that his stenographic notes contained questions and answers as follows:

‘ ‘ By Court Attendant: Henry Freudenberg, on the complaint of Frank Losquadro. No. 26849.
‘ ‘ By the Court: Mr. Defendant, do you prefer to go on with this case today or do you want an adjournment to get a lawyer or witnesses ?
“ By Defendant: I want it for today.
“ By the Court: Do you desire to waive for trial in the Court of Special Sessions, or do you desire to have the case heard here ?
“ By Defendant: Yes.
‘ ‘ By the Court: In the Court of Special Sessions 1 ‘ ‘ By Defendant: Here.
“ By the Court: On the complaint of Frank Losquadro.
The defendant is charged with driving while intoxicated. ’ ’

The coram nobis court “ amended” the stenographic minutes to include allegedly omitted lines. After this coram nobis trial Magistrate Ohbingeb, the Magistrate, granting coram nobis relief, wrote an opinion in which he found as. fact that the amendment correctly stated what occurred in 1937. However, he pointed out that in a later part of these 1937 minutes (recording events later in the day of the 1937 trial) it appears that defendant after having been tried and found guilty without counsel was brought before the court for sentence. There was then a colloquy (at the 1937 sentencing) between defendant and. the court in which defendant said: “My father went downstairs to get a, lawyer”, whereupon a court officer told the Magistrate that the defendant’s father had arrived late. The Magistrate then reminded defendant during that sentencing that the court had asked defendant that morning whether defendant wished a postponement and defendant then replied that he had failed to ask for a postponement because he “ wasn’t guilty The record shows that at this sentencing in 1937 defendant asked the court whether he could wait until a lawyer would come and have the case reopened. The court said that defendant would have to take an appeal. Thus, there was under the rule of People v. Marincic (2 N Y 2d 181) enough in these 1937 minutes added to defendant’s sworn statements on this motion to show that although defendant was asked by the court whether he wanted an adjournment to get a lawyer, nevertheless he did not fully understand that he had a right to be represented by counsel or that he had a right to an adjournment for this purpose, and enough to show that defendant’s failure to get a lawyer in 1937 was due to his father’s arriving late in the courthouse. In People v. Marincic we reversed a conviction on the law because defendant was not accorded these rights. Here both courts below have held as fact that there was such a deprivation. The presence in this record of supporting proof necessitates an affirmance by us.

The People argue here, among other things, that the Marincic decision (supra) was based on section 699 of the Code of Criminal Procedure which in its present form was not on the books in 1937. However, subdivision 4 of section 31 of the New York City Criminal Courts Act, which was in effect before 1937, incorporated into the Criminal Courts Act the sections of the Code of Criminal Procedure governing indictments, one of which was then section 188 of the Code of Criminal Procedure which is identical with subdivision 1 of present section 699 of the Code of Criminal Procedure construed and applied in the Marincic case. Thus, the New York City Special Sessions Court before which defendant was tried in 1937 was under the same obligation described in the Marincic opinion (see Matter of Both, 200 App. Div. 423, 426 [1922]).

Defendant says that in the 1937 proceedings he was not only deprived of his rights as to counsel but, also, that there was a violation of the requirements of sections 188 and 699 of the Code of Criminal Procedure (then and now in effect) that the Magistrate “ must immediately inform him of the charge against him ’ ’. In this connection the 1937 record contains only this: “ The defendant is charged with driving while intoxicated.” There are no particulars as to where or when, etc. We find no cases in this court and none are cited to us as to the scope of this requirement of informing defendant as to the charge against him. However, it would seem that the courts below were within their rights in finding as matter of fact that according to the stenographer’s 1937 trial minutes there was a failure of the court to see to it that defendant knew what his rights were as to counsel and as to what the charge was.

The order should be affirmed.

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

Order reversed and defendant’s motion to vacate the judgment of conviction denied.

      . “ § 699. Charge to be read to defendant, and he required to plead. In the eases in which the courts of special sessions or police courts have jurisdiction, when the defendant is brought before the magistrate, the charge against him must be distinctly read to him, and he must be required to plead thereto, except as otherwise provided by law in relation to violations of traffic laws, ordinances, rules and regulations.” (As amd. by L. 1932, eh. 526.)

      . “ * * * and in any trial in any court whatever the party accused shall be allowed to appear and defend in person and with counsel as in civil actions”, (N. Y. Const., art. I, § 6.)


source: Caselaw Access Project

author: Burke, J.

license: Public Domain

text:
    The People of the State of New York, Respondent, v. David P. Masse, Appellant.
    Argued October 15, 1958;
    decided January 23, 1959.

      John W. Condon, Jr., and Grace Marie Ange for appellant.
    The testimony of complainant was uncorroborated by such other evidence as mandated by section 2013 of the Penal Law. Accordingly, the adjudication should be reversed. (People v. Downs, 236 N. Y. 306; People v. Croes, 285 N. Y. 279; People v. Page, 162 N. Y. 272; People v. Shaw, 158 App. Div. 146; People v. Kingsley, 166 App. Div. 320; People v. Brehm, 218 App. Div. 266.)

      John F. Dwyer, District Attorney (Robert A. Burrell and George R. Blair of counsel), for respondent.
    I. The testimony adequately and properly supports the finding that rape occurred. II. The evidence adequately supported the testimony of complainant and met the burden imposed by section 2013 of the Penal Law. (People v. Page, 162 N. Y. 273; People v. Seaman, 152 App. Div. 495; People v. Taleisnik, 225 N. Y. 489; People v. Marshall, 5 A D 2d 352; People v. Grauer, 12 App. Div. 464; People v. Yannucci, 283 N. Y. 546; People v. Florio, 301 N. Y. 46; People v. Masalewski, 278 App. Div. 846, 303 N. Y. 788; People v. Kingsley, 166 App. Div. 320; People v. Brehm, 218 App. Div. 266.)
   Burke, J.

The defendant was indicted on one count for the crime of rape, misdemeanor. He was subsequently adjudicated a youthful offender and sentence was imposed, the execution of which was suspended and the defendant placed on probation.

The only question raised on this appeal is whether there is “ other evidence ” sufficient to support the testimony of an adolescent female allegedly defiled.

The defendant contends that the evidence is insufficient to support the charges of sexual intercourse and of the defendant’s role as a party to such an act.

The “ other evidence ” required by law must be of the character that tends to establish first, that the crime of rape was committed, and, second, that the defendant was the one who committed the crime (People v. Terwilliger, 74 Hun 310, affd. on opinion below 142 N. Y. 629; People v. Downs, 236 N. Y. 306; People v. Croes, 285 N. Y. 279).

The supporting evidence may come in many forms, including admissions and circumstantial evidence.

Here, unlike a great many of these cases, there is strong medical proof taken within a short period after the rape occurred which adequately demonstrates that sexual intercourse was had with the complainant. This expert testimony, taken together with the girl’s testimony, establishes the commission of the crime beyond a reasonable doubt (People v. Deitsoh, 237 N. Y. 300).

In order to identify the defendant as an actor in the commission of the crime, the People rely upon the following evidence. Neighbors saw the complainant and the defendant conversing in the driveway outside of the house in which the complainant claimed she was raped. Within a short time the defendant, who did not reside there, escorted the girl into the house and shortly thereafter was seen to return and close the entrance door which had been left open. Between 20 and 30 minutes thereafter complainant was seen alternately running and walking down the driveway. Later defendant was observed in the act of picking up a wooden jewel box and its contents in the yard. The householder who had been away from home during the visit of the girl described a jewelry box owned by her which was kept on her vanity in the bedroom. On her return she found the jewel case on her vanity and noticed a hole had been made in the screen at an open window during her absence.

The complainant testified, after identifying the defendant as one of the three rapists, one of whom lived in the house into which defendant led her, that, in resisting the attack made on her person while in the bedroom, she picked up a wooden jewelry box from a dresser and threw it through the bedroom window, breaking the screening thereon.

Thus there is proof that the bedroom screen was broken and that the defendant returned the wooden jewelry box and its contents to its accustomed place after the alleged rape was performed.

It is defendant’s theory that this evidence is only proof of the defendant’s opportunity to commit the crime and that proof of mere opportunity is not the “other evidence” tending to connect the defendant with the commission of the act. The defendant further argues that the jewelry box episode adds only a quality of credibility to the testimony of the complainant but does not contribute support to the girl’s identification of the defendant as a despoiler.

Of course the cases cited by the defendant hold that mere opportunity does not constitute sufficient corroborative evidence to prove both the commission of the crime and a defendant’s connection with it. But as we read the cases, we find there was no independent proof that a crime was committed on the person of the complainant. There was an absence of medical or physical evidence sufficient to establish sexual intercourse. In some cases the evidence lacked any probative value due to the particular facts of the case with the result that the only evidence that was present was the complainant’s testimony and the proof of the opportunity of the defendant (see, e.g., People v. Downs, supra; People v. Page, 162 N. Y. 272; People v. Brehm, 218 App. Div. 266; People v. Kingsley, 166 App. Div. 320; People v. Seaman, 152 App. Div. 495; People v. Kline, 152 App. Div. 438; cf. People v. Croes, 285 N. Y. 279, supra).

For instance, in People v. Downs (236 N. Y. 306, 309, supra), the question presented was whether certain statements of the defendant amounted to an admission of the crime of rape in the second degree as testified to by the complaining witness. There was no other corroborative evidence present. We held that the fact that the defendant admitted that he was with the girl at the time she alleged the defilement occurred, coupled with his statement that he had “ fooled with her but [he] didn’t rape her ”, would not permit the jury to infer that the crime of rape had in fact been committed and that the defendant was the guilty party.

Such statements, naturally, do not amount to admissions on the part of a defendant that a crime was committed bv him.

In People v. Croes (supra) the crime charged was rape in the second degree. The evidence consisted in the testimony of the complainant that she was raped by this defendant, the defendant’s denial of guilt when first accused and his admission that he had taken the complainant to a doctor for an examination. The Trial Judge charged the jury that, if they found that the defendant’s act of taking the complainant to a doctor to be as consistent with innocence as well as guilt, they must disregard the evidence as corroborative of the complainant’s testimony. The Trial Judge, however, refused to charge the jury that, if the jury found this act to be consistent with his innocence, they must acquit, inasmuch as the trial court stated that the jury may find other corroborative facts in the case.

In reversing the conviction and ordering a new trial, we stated:

In the Deitsch case, however, there was independent proof that a crime had been committed. * * * In the present case there is no evidence in the record as to complainant’s physical condition that would support her story that a rape had been committed. * * * As the evidence, aside from the conduct of defendant in taking the complainant to a physician to be examined, does not show that a crime was committed, the trial judge erred in refusing to charge that if the jury found defendant’s conduct in that respect to be consistent with innocence then defendant should be acquitted” (p. 283; emphasis added).

In People v. Deitsch (supra) this court, in finding that there was sufficient corroboration of the the complainant’s story that the defendant was the guilty party, relied on only two factors: (1) the testimony of a witness that she saw the defendant outside the complainant’s house at a time shortly before the rape occurred; and (2) the falsity of the defendant’s and two other witnesses’ testimony that the defendant was not there.

The decision in that case restated the rule laid down in People v. Terwilliger (74 Hun 310, affd. on opinion below, 142 N. Y. 629, supra) where we held that the evidence was sufficient both to justify sending the case to the jury and to support a conviction for rape where there was competent medical proof of the commission of the rape, immediate disclosure, and testimony as to the opportunity of the defendant in that he was seen in the presence of the complainant near the scene of the rape.

It seems to us that the evidence of the broken screen and the retrieving of the jewelry box could be considered by the jury or the trier of the facts as corroboration of the identity of the defendant. It places the defendant in the room at the time of the commission of the crime and the inference is that he was sufficiently connected with the events as testified to by complainant. This is more than an “immaterial fact”; it is one of the ‘ surrounding circumstances ’ ’ of the case with sufficient corroborative value to meet the mandate of the statute.

Accordingly, the judgment of conviction should be affirmed.

Chief Judge Conway and Judges Dye and Froessel concur with Judge Burke; Judges Desmond, Fuld and Van Voorhis dissent and vote to reverse and to dismiss the indictment upon the ground that there is in this record no “other evidence” tending to establish that defendant was the one who committed the crime or one of those who committed it (Penal Law, § 2013; People v. Downs, 236 N. Y. 306; People v. Croes, 285 N. Y. 279).

Judgment affirmed.

      . Section 2013 of the Penal Law provides that: “No conviction can be had for rape or defilement upon the testimony of the female defiled, unsupported by other evidence” (emphasis supplied).


author: Chief Judge Conway. Dye, J. (dissenting). Froessel, J. (dissenting).

text:
    In the Matter of Jewish Child Care Association of New York, Respondent. Seymour Sanders et al., Appellants.
    Argued October 6, 1958;
    decided January 23, 1959.

      Albert M. Goldberg for appellants.
    I. The hearing at Special Term adduced no evidence to support the determination of that court that the best interests of the child would be served by her removal from the home of appellants. (Matter of Bachman v. Mejias, 1 N Y 2d 575; Matter of Holland v. Oscarson, 2 A D 2d 987.) II. The order of the lower court, as affirmed, represents a result which does not serve the best interests of the child and is wholly incompatible with the evidence and with applicable judicial precedents. (People ex rel. McCanliss v. McCanliss, 255 N. Y. 456; People ex rel. Herzog v. Morgan, 287 N. Y. 317; Finlay v. Finlay, 240 N. Y. 429; People ex rel. Riesner v. New York Nursery & Child’s Hosp., 230 N. Y. 119; People ex rel. Sisson v. Sisson, 153 Misc. 434; People ex rel. Spreckels v. de Ruyter, 150 Misc. 323; People ex rel. Converse v. Derrick, 146 Misc. 73; Matter of Bock [Breitung], 280 N. Y. 349; Newcomb v. Newcomb, 281 App. Div. 689; Matter of MacLaren [Kincaid], 283 App. Div. 817; People ex rel. Jewish Child Care Assn. of N. Y. v. Handsman, 281 App. Div. 980; People ex rel. Anonymous v. Perkins Adoption Soc., 271 App. Div. 672; People ex rel. Our hady of Victory Infant Home v. Venniro, 126 Misc. 135; Matter of Mary I-v. Convent of Sisters of Mercy in Brooklyn, 200 Misc. 115.) III. The failure of the lower court to exercise discretion in the mistaken belief that it had none constitutes reversible error. (Finlay v. Finlay, 240 N. Y. 429; Beach v. Chamberlain, 3 Wend. 366; Foote v. People, 56 N. Y. 321; Russell v. Conn, 20 N. Y. 81; Tolman v. Syracuse, B. & N. Y. R. R. Co., 92 N. Y. 353; People ex rel. Herzog v. Morgan, 287 N. Y. 317.)

      Helen L. Buttenwieser and Chester T. Lane for respondent.
    I. The only issue in a writ of habeas corpus is the best interests of the child. II. The evidence adduced warrants the finding at Special Term that appellants have created a difficult and damaging situation for Laura and that it is in Laura’s best interest to be removed from her boarding home.
   Chief Judge Conway.

The purpose of this habeas corpus proceeding is to determine the custody of Laura Neuberger, an infant who is now about five and a half years old. About four and a half years of her short life have been spent in the home of the appellants, Mr. and Mrs. Sanders. Appellants are not related to Laura, nor do they have legal custody. They have her on a temporary foster parent basis pursuant to an arrangement with the respondent Jewish Child Care Association of New York, hereinafter referred to as Child Care.

Child Care is a philanthropic organization chartered by the State of New York to care for children who are in need of custodial care outside of their own homes. It accepts for care children whose parents are temporarily unable to care for them but who are unwilling to place them for adoption. These children are cared for until such time as their own families can properly care for them. While some of these children are placed in a cottage plan institution, the majority are placed in boarding or foster homes. During this boarding period, Child Care’s workers assist those in the natural home in preparing for the return of the child, and at the same time exert efforts to insure the child’s adjustment and preparation for the return to its family. When such a child is placed in a foster home, it is the function of the foster parents to assist in the proper orientation of the child so that it may be prepared and ready for its eventual return to its family. This relationship of foster parent and child is carefully explained to persons who undertake to assist Child Care in its worthy purpose. Such persons are paid an agreed sum of money for the child’s room and board, and clothes and medical care are paid for by" Child Care. Persons accepting such a child for temporary boarding care do so with the understanding that adoption is not contemplated, that the child will return to its natural parent or parents as soon as feasible, and that one of the primary responsibilities of such boarding parents is to prepare the child psychologically for its contemplated return to its natural home. In order to maintain and strengthen the ties between the child and its parent or parents, the boarding program contemplates periodic visits by the natural parent with the child at the boarding home.

It was in this context that on about July 30,1964 the Sanders, husband and wife, accepted Laura into their home having applied to Child Care three or four months previously to serve as foster parents. Laura’s young mother was unable to care for her after her birth and the child was placed with the Department of Welfare of New York City which in turn commended her welfare and custody to Child Care. When Mr. and Mrs. Sanders first applied to Child Care to participate in its boarding program, that program was explained to them and they were expressly told at that time that Child Care was a boarding agency and not an adoption agency. When they took Laura they knew she had a mother who would visit her, although not for a while in the beginning. The precise chronology of the events that followed during Laura’s stay with the Sanders is not clearly revealed by the record. It appears that sometime during1 the first year that they had Laura, the Sanders acquired a desire to adopt her. They mentioned this to one of Child Care’s workers who told them that adoption was out of the question, and explained the necessity for helping Laura to understand who her mother was. Despite this, Mr. and Mrs. Sanders actively sought to effectuate their desire to adopt Laura. In their pursuit of adoption, and contrary to the known policies and rules of Child Care, the Sanders arranged to speak to Laura’s mother about adoption. On several occasions they attempted to persuade Laura’s maternal grandmother and uncle to interfere and intercede in their behalf and prevail upon Laura’s mother to give her up. At one point the Sanders were required by Child Care, as a condition to their keeping Laura, to sign a paper in March of 1957 to the effect that they had Laura on a foster home or boarding home basis only. This occurred after an attorney, representing himself as the Sanders’ attorney, telephoned Child Care and inquired about the availability of Laura for adoption. Some time prior to Thanksgiving Day in November of 1957, Mr. and Mrs. Sanders asked Child Care if they could take Laura to Florida for that holiday. They were refused permission, one of Child Care’s workers explaining to them that by that time Laura might be back with her mother, and that Child Care was working on a plan with the mother toward that end. When thus advised, Mrs. Sanders became upset and she described her emotional reaction as follows: “I was heartbroken, very worried about Laurie, about how she would react. In fact, that was my prime worry, how she would feel being taken away from her mother and father” (emphasis supplied). In their zeal to adopt Laura, the Sanders persuaded Laura’s uncle to discuss his sister’s (Laura’s mother) background with the district supervisor of the foster home department of Child Care. It does not appear what this background was. At any rate the district supervisor then informed the Sanders that they would be asked to give up Laura in a few weeks because they had become too emotionally involved with the child. During approximately a week that followed, the Sanders intensified their efforts to persuade Laura’s mother to surrender her for adoption. Mr. Sanders approached Laura’s mother both at her place of business and at her home, but she steadfastly refused to give up her daughter. He spoke with Laura’s grandmother but she refused again to interfere. Finally, Laura’s mother telephoned Child Care about these efforts. The district supervisor then informed the Sanders that they would have to give up Ladra and that this course would be kinder to them in view of their deep emotional involvement with Laura. When Child Care’s representatives came to call for Laura, however, the Sanders refused to give her up, whereupon Child Care commenced this proceeding. Almost all of the foregoing is based upon the testimony of Mr. and Mrs. Sanders.

The district supervisor of the foster home department of Child Care testified, in part, that Child Care has worked with the Sanders to help them continue to keep Laura while performing their proper function as boarding parents. However, it became evident that the child’s best interests necessitated her placement in another environment where she would not be torn between her loyalty to her mother and her boarding parents. According to the testimony of a representative of the Department of Welfare of New York City, that department was in agreement with Child Care that Laura’s best interests required that she be placed elsewhere. A psychiatrist, the only witness called by appellants, testified in substance that he had interviewed Laura and the Sanders the afternoon before the trial, that the Sanders took Laura to satisfy their own parental instincts, that Laura is well adjusted, that if she were taken from the Sanders now she might become maladjusted, that the Sanders are the only ones Laura knows as parents, that it would be better to allow Laura’s attachment to the Sanders to grow, and that Laura would make a better adjustment to the change to her own mother later on, whenever that should be, if she were left with the Sanders.

Upon this record, the Supreme Court Trial Justice, who had formerly been a Children’s Court Justice for 11 years, found that it would be in Laura’s best interests if she were taken from the Sanders before, as he phrased it, “further damage is done or a still more difficult situation for her is created This discretionary finding was expressly affirmed by the Appellate Division. There is no merit to the appellants’ claim that the Trial Justice failed or refused to exercise independent discretion as to what is in Laura’s best interests, or that he made his determination upon any basis other than her best interests. Consequently, the precise question which this record presents is whether there is such a lack of supporting evidence that we must charge the court below with an abuse of discretion as a matter of law. (See Matter of Bachman v. Mejias, 1 N Y 2d 575, 582; People ex rel. Kropp v. Shepsky, 305 N. Y. 465, 468; People ex rel. Portnoy v. Strasser, 303 N. Y. 539, 542; Bunim v. Bunim, 298 N. Y. 391, 393.) It should be remembered that “ Questions of custody are, generally, for the Supreme Court, in its discretion, and it is rarely that any such determination by it can raise any question of law for us.” (People ex rel. Portnoy v. Strasser, supra, p. 542.)

In considering what is in Laura’s best interests it was not only proper, but necessary, for the Trial Justice to consider the facts in terms of their significance to Laura’s eventual return to her own mother. The record permits no other perspective to be taken, both in view of Laura’s mother’s steadfast refusal to give her up, and Child Care’s declared purpose to return Laura to her own mother when she is able to care for her. Viewing the record thus, it supports in a most compelling manner the Trial Justice’s determination which has been affirmed by the Appellate Division. It clearly establishes that the appellants have conducted themselves in a fashion inconsistent with their agreement and, indeed, diametrically opposed to their trust. Their own witness testified that Laura had come to look upon appellants as her parents, “ the only ones she has known as parents.” In short, the content and tone of the record disclose a situation in the Sanders home which has reached such a peak of emotion and possessiveness that it is entirely inconsistent with Laura’s future with her own mother, and her need to be prepared for that future. Certainly, the Trial Justice was entitled to find that it would be in Laura’s best interests to extricate her now from the emotional entanglement into which she has been plunged by the keen parental desire of the Sanders in which they involved themselves contrary to their own agreement and in violation of their trust. He was entitled to find that to allow Laura to stay longer would make the future transition to her own mother more painful for the child.

That the Sanders have given Laura a good home and have shown her great love does not stamp as an abuse of discretion the Trial Justice’s determination to take her from them. Indeed, it is the extreme of love, affection and possessiveness manifested by the Sanders, together with the conduct which their emotional involvement impelled, that supplies the foundation of reasonableness and correctness for his determination. The vital fact is that Mr. and Mrs. Sanders are not, and presumably will never be, Laura’s parents by adoption. Their disregard of that fact and their seizure of full parental status in the eyes of the child might well be, or so the Trial Justice was entitled to find, a source of detriment to the child in the circumstances presented. Nor can we sustain an objection that, since the child is not now being returned to her mother, she should be left with the Sanders because the fitness of her next habitation is presently unknown. As the Appellate Division wrote, we may not indulge an assumption, or even harbor a doubt, that Laura will not be properly eared for under the supervision of Child Care which is an authorized agency and which has proven itself most solicitous for the welfare not only of the child and its mother but even of the appellants themselves. From the standpoint of the child’s best interests, therefore, we hold that there was no abuse of discretion by the Trial Justice.

The nature of this case requires one further basic statement. What is essentially at stake here is the parental custodial right. Although Child Care has the present legal right to custody (Social Welfare Law, § 383, subd. 2) it stands, as against the Sanders, in a representative capacity as the protector of Laura’s mother’s inchoate custodial right and the parent-child relationship which is to become complete in the future. Any future physical legal custody in Laura’s mother would be but an empty right, if the emotional substance of that relationship were permitted to be replaced antecedently by the parent-like love and possessiveness of Mr. and Mrs. Sanders. This court has acknowledged that “ * * * the right of a parent, under natural law, to establish a home and bring up children is a fundamental one * * (People ex rel. Portnoy v. Strasser, 303 N. Y. 539, 542, supra.) In support of this tenet we have declared that “ Except where a nonparent has obtained legal and permanent custody of a cMld by adoption, guardianship, or otherwise, he who would take or withhold a child from mother or father must sustain the burden of establishing that the parent is unfit and that the child’s welfare compels awarding its custody to the nonparent.” (People ex rel. Kropp v. Shepsky, 305 N. Y. 465, 469, supra.) A proper application of these doctrines requires the conclusion that foster parents may not succeed in a proceeding such as this, where the child temporarily in their care is to return to its natural parent, in accordance with the trust accepted by the foster parents for compensation, in the absence of a clear showing that to return the child to the boarding agency will operate to its grave detriment. The paramount parental right to raise one’s own child, which we regard as fundamental, is to be protected not only from direct and immediate incursion, as in the Shepsky and Strasser cases, but also from indirect and less proximate subversion, such as in the case before us.

We are, of course, not unmindful that the result we reach may cause distress to the appellants. However, the more important considerations of the child’s best interests, the recognition and preservation of her mother’s primary love and custodial interest, and the future life of the mother and child together, are paramount. These interests, and the program of agencies such as Child Care which preserves them, may not be subverted by foster parents who breach their trust.

The order of the Appellate Division should be affirmed, without costs.

Dye, J. (dissenting).

This appeal involves the custody of a minor child. In sustaining petitioner’s application for a writ of habeas corpus, a majority of this court is about to say that the best interest of the infant will be served by compelling the approved foster parents, with whom the petitioner had previously placed the child for custodial care, to surrender her back to the Agency, thére to be dealt with as they see fit. This tragic result comes about because of a mistaken notion that the courts are bound to accept an administrative policy of the Agency as controlling their determination rather than to exercise their own traditional power and authority in accordance with the evidence. While administrative practices have a useful place in the handling of ordinary matters of administration, such test is wholly inappropriate in this setting. Here we are not dealing with a routine problem of administration, but rather with the fundamental concept underlying the broad and enlightened social welfare program of the State respecting the care and custody of indigent and neglected children, every aspect of which is to be tested in the light of which will best promote their individual welfare. This idea is neither new nor novel in our society. The State as parens patries has always had a deep concern for its infant wards; from birth to maturity their welfare is paramount, even to that of the natural parent (Matter of Bock [Breitung], 280 N. Y. 349), the determination of which belongs solely to the Supreme Court as successor to the Chancellor (Matter of Bachman v. Mejias, 1 N Y 2d 575), which may not be limited or diminished by the Legislature (People ex rel. Reisner v. New York Nursery & Child’s Hosp., 230 N. Y. 119; People ex rel. Mayor of City of New York v. Nichols, 79 N. Y. 582).

This controversy has not been precipitated by the classic cause arising from abuse and neglect but because these foster parents 11 have become too emotionally involved ”, a situation engendered by a feeling of mutual love and affection. In extricating the child from this “emotional entanglement ”, it seems clear that on this record one of the most fundamental aspects of the child care program, namely the placing of children in a home environment, is being defeated. It is undisputed that the infant Laura was born June 3, 1953. At that time her mother was about 17 years of age and lived with her widowed mother and an unmarried minor brother, a student. The child was thereafter given over to the Department of Welfare of the City of New York who, in turn, gave her to the Agency. When the child was about one year old the Agency placed her with these appellants for boarding care. As might be expected, the foster parents became attached to the child; as the years passed by this attachment grew and was reciprocated by the infant. She flourished under their care and is now almost six years of age . The well-qualified witness, Dr. Pechstein, has described her as a “healthy, normal, well-adjusted child”. There came a time when the foster parents proposed adoption, first to the case worker who disapproved, then to the grandmother, and finally to the mother herself, who temporized and declined to give any definite answer which is regarded as a refusal. The Agency did not like the emotional development as it was their policy to keep the care children in a neutral environment'— where there could be no “ pull on the child between her loyalty to her foster parents and her mother”. To this policy the Agency required the foster parents, as a condition of continued custody, to .sign a paper declaring that they understood that Laura could “ remain only with the status of a foster child”. However, this failed of its intended purpose. The foster parents continued to hope for an adoption while the Agency considered this was impossible under the circumstances, demanded the return of the child and, when refused, commenced this proceeding. At the hearing the Agency freely conceded that the foster , parents were well qualified in every respect, had taken good care of the child and were providing her an excellent ‘ ‘ home environment” but, even so, that their love and affection for the child had created a situation which would make it difficult for Laura to return to her mother if and when, at some unknown time in the future, if ever, the mother would be in a position to care for her. The mother did not appear at the hearing and so far as it appears she is in no position to care for the child at this time or in the near future — or for that matter is there anything in the record to indicate a maternal interest in the child. Concededly, the Agency intends to replace the child in a neutral environment not presently designated. The Agency, as we have said, asserts that the foster parents were quite unfair in yielding their love to the compulsive attraction of the infant’s helplessness at the same time conceding that the child is in a good home environment. There is impartial, disinterested and informed testimony that the child’s best interest will be promoted by not disturbing the placement at this time. In the words of Dr. Pechstein ‘ ‘ This child is at a critical period. * * * This is by far the worst time to consider changing the placement * # * if this child is moved now * * * She will be uprooted from * * * the only ones she has known as parents * * * from her home in Levittown, where she has made friends and is about to start in kindergarten with children that she knows. She will be taken out of an environment which has made her the healthy, normal, well-adjusted child that she is. That is going to open up the possibility of all kinds of maladjustments. * * * I can’t see where they [the Agency] get this notion of placing a child in a neutral environment, without love and without hate, possibly, without this, without that. It is as though you are taking the child and placing it in a bare environment with nothing but food. * * * Where a child has been by necessity placed in such an environment, where they are just handed the bare necessities of life * * * food, shelter, clothing; * * * these children have not grown. * * # In my experience [on placement] we have sought homes where they can get this type of love, where there is care and attention and concern which might duplicate that of a parent * * *. A child learns to react to others by reacting to the emotions * * * of liking and disliking, of love and hate. This is normal. * * * If you take a child and deprive bim of that, you are depriving the child of the essentials of life. * * * Here these people are taking the child; the agency is taking the child away from these people, and they treat this child as their own, offering the child the best that the child could get. I really don’t understand why the agency feels this way. * * * I think these people would make better parents since they have raised the child this far and they have made an attachment to the child and the child has made an attachment to them. * * * I think the child will make a better adjustment to the change to the mother later on, whether it is a year or five years from now, if she is left exactly where she is.”

When this uncontradicted testimony is analyzed in the light of surrounding circumstances, it seems convincingly clear that the child’s best welfare is to be served by continuing the placement with these appellants. In so ruling, we are not unmindful of the mother. Under the applicable statutory scheme of child care and placement, the natural parents have first consideration, but even this right must be tested in light of what is best for the child. Here there is no evidence justifying return of custody to the natural mother. She does not ask it and she is in no position to assume the care and education at this time or in a reasonably foreseeable future time. All that remains then is to apply the test of what is best for the welfare of the child and, when applied in this instance, it points convincingly to the desirability of leaving the child with the foster parents. The Agency does not disagree with the best interest test, bnt, nonetheless, feels that their policy of neutrality should be accorded precedence. This, as we see it, is not for the child’s best interest but rather for the best interest of the Agency, a specious result in any event for, even if custody remained with the appellant, the Agency may continue supervision and visitation.

The courts of New York have repeatedly taken their stand on the side of the child (Finlay v. Finlay, 240 N. Y. 429; People ex rel. Herzog v. Morgan, 287 N. Y. 317). Quite recently this court reiterated its stand that the welfare of the minor infant was paramount (Matter of Bock [Breitung], supra). The Supreme Court has the power and the duty to promote and protect the best interest of the State’s infant wards. The failure of the Supreme Court to exercise its inherent powers in this habeas corpus proceeding in accordance with the evidence was tantamount to an abuse of discretion.

The order should be reversed.

Froessel, J. (dissenting).

I concur with Judge Dye for reversal. We are not here concerned with the respective rights of the Sanders, the Child Care Agency, or the mother, for it is undisputed that the Sanders have no rights as against either of the latter. The mother may have her child, Laura, whenever she wishes, subject to the provisions of section 383 of the Social Welfare Law. Our only concern is Laura’s best interests in the meantime. The problem presented rightly troubled the learned Justice at Special Term, and the Appellate Division was sharply divided.

Laura was born on June 3, 1953. Her mothqr delivered her to the Department of Welfare of New York City, who thereupon turned her over to the Agency. On July 30, 1954 the Agency gave the child to the Sanders for boarding care, at which time she was not quite 14 months old. Seymour Sanders at the time of the hearing was 30 years old, his wife 28, and they are childless.

Laura’s mother visited her but once a year for the first two years. Small wonder then that the Sanders thought she had little interest in Laura, and, therefore, inquired about adopting her, despite the fact that they had been told by the Agency that Laura could not he adopted. Its order having been disobeyed, the Agency sought to place the child in another home. The Sanders were told they u were too attached to the child ”; they “ loved her too much ”. For that entirely normal human reaction of the average person to the love of a child, Laura is to be transferred to strangers in the sixth year of her life.

The Agency took the position, at the hearing, that it could not function properly if a “ foster family was in position to question our judgment, even if our judgment, if you weigh it, might turn out to be wrong Perhaps they are right (Social Welfare Law, § 383), but certainly the courts have the power, as Judge Dye has pointed out, to determine what is in the best interests of the child, our paramount concern.

In 1954 Laura was boarded on a temporary basis. More than four years later, we do not have the slightest indication as to when, if ever, the mother will want her child. If Laura is to be bandied about meanwhile from family to family until she is transferred to her mother, each such change will be extremely difficult for the child, as testified to without contradiction by the psychiatrist at the hearing. Why multiply the shocks? And if the mother never chooses to take Laura, and that does not appear to be unlikely from the record before us, the child could not find a better home than she now enjoys.

I am of the opinion that the Agency, however well motivated, has committed grave error here, contrary to the best interests of the child; that the courts below were in no small measure erroneously influenced by the so-called rights of the Agency, rather than by the welfare of the child, and that there is no substantial evidence to support their determinations. Accordingly, I would reverse the orders below, and dismiss the petition.

Judges Desmond, Ftjld and Burke concur with Chief Judge Conway ; Judge Dye dissents in an opinion in which Judge Van Voorhis concurs and in which Judge Frobssel concurs in a separate opinion.

Order affirmed.


author: Desmond, J.

text:
    George De Veau et al., Individually and as Members of Local 1346 of the International Longshoremen’s Association (Ind.), and on Behalf of All Other Members of Local 1346 of the International Longshoremen’s Association (Ind.), Appellants, v. John M. Braisted, Jr., as District Attorney of Richmond County, Respondent.
    Argued January 15, 1959;
    decided February 26, 1959.

      Thomas W. Gleason and Julius Miller for appellants.
    I. Section 8' of the Waterfront Commission Act is void because it deprives employees of the right to bargain collectively through representatives of their own choosing which is guaranteed by section 7 of the National Labor Relations Act. (Algoma Plywood Co. v. Wisconsin Bd., 336 U. S. 301; Bus Employees v. Wisconsin Bd., 340 U. S. 383; Hill v. Florida, 325 U. S. 538; Hazelton v. Murray, 21 N. J. 115; Linehan v. Waterfront Comm., 116 F. Supp. 683; Bradley v. Waterfront Comm., 130 F. Supp. 303; O’Rourke v. Waterfront Comm., 118 F. Supp. 236; Board v. Hearst Pub., 322 U. S. 111; Domanick v. Triboro Coach Corp., 173 Misc. 911; Texas & New Orleans R. R. Co. v. Railway Clerks, 281 U. S. 548.) II. Section 8 is contrary to both the Constitution of the State of New York and the Constitution of the United States. (Anti-Fascist Committee v. McGrath, 341 U. S. 123; Stuart v. Palmer, 74 N. Y. 183; Truax v. Raich, 239 U. S. 33; Schware v. Board of Bar Examiners, 353 U. S. 232; Konigsberg v. State Bar, 353 U. S. 252; United States v. Lovett, 328 U. S. 303.) III. Plaintiff De Veau, who received a suspended sentence in the year 1922, was not convicted of a felony within the meaning of section 8 of the Waterfront Commission Act. (People ex rel. Marcley v. Lawes, 254 N. Y. 249; Linehan v. Waterfront Comm., 116 F. Supp. 401; People v. Fabian, 192 N. Y. 443; People v. Shaw, 1 N Y 2d 30; Matter of Razukas v. New York State Dept. of Correction, 186 Misc. 429, 270 App. Div. 1074; Matter of Spitale [People], 276 App. Div. 632, 302 N. Y. 616.)

      Nanette Dembitz, Stephen C. Vladeck and Edward L. Sadowsky for New York Civil Liberties Union, amicus curies, in support of appellants’ position.
    Appellant has been deprived of the right to work without due process of law. (Schware v. Board of Bar Examiners, 353 U. S. 232; Fisher Co. v. Woods, 187 N. Y. 90; Truax v. Raich, 239 U. S. 33; Yick Wo v. Hopkins, 118 U. S. 356; Cummings v. State of Missouri, 4 Wall. [U. S.] 277; Nebbia v. New York, 291 U. S. 502; Slochower v. Board of Educ., 350 U. S. 551; People ex rel. Prisament v. Brophy, 287 N. Y. 132; People ex rel. Page v. Brophy, 248 App. Div. 309, 277 N. Y. 673; Skinner v. Oklahoma, 316 U. S. 535; Anti-Fascist Committee v. McGrath, 341 U. S. 123; Stuart v. Palmer, 74 N. Y. 183; Goldsmith v. Board of Tax Appeals, 270 U. S. 117; Matter of Bender v. Board of Regents, 262 App. Div. 627; Barsky v. Board of Regents, 347 U. S. 442; Myers v. Bethlehem Corp., 303 U. S. 41.)

      John M. Braisted, Jr., District Attorney (Thomas R. Sullivan of counsel), for respondent.
    I. Section 8 of -the Waterfront Commission Act is a valid exercise by the State of New York of its police powers. (Nebbia v. New York, 291 U. S. 502; Hazelton v. Murray, 21 N. J. 115; Mill v. Florida, 325 U. S. 538; International Longshoremen’s Assn. v. Mogan, 3 Misc 2d 893; Garner v. Teamsters Union, 346 U. S. 485; Auto Workers v. Wisconsin Bd., 336 U. S. 245; United Workers v. Laburnum Corp., 347 U. S. 656; Linehan v. Waterfront Comm., 116 F. Supp. 683, 347 U. S. 439; Staten Is. Loaders v. Waterfront Comm., 117 F. Supp. 308, 347 U. S. 439; O’Rourke v. Waterfront Comm., 118 F. Supp. 236; Bradley v. Waterfront Comm., 130 F. Supp. 303.) II. Section 8 of the Waterfront Commission Act is in keeping with due process of law under both the Constitution of the United States and the Constitution of the State of New York. III. De Yean has been convicted of a felony within the purview and contemplation of section 8 of the Waterfront Commission Act. (People v. Fabian, 192 N. Y. 443; People ex rel. Marcley v. Lowes, 254 N. Y. 249; People v. Shaw, 1 N Y 2d 30; Matter of Richetti v. New York State Bd. of Parole, 300 N. Y. 357; People v. Duff, 137 Misc. 352.)

      William P. Sirignano, Robert J. Mozer and Irving Malchman for Waterfront Commission of New York Harbor, amicus curies, in support of respondent’s position.
    I. The instant action for injunctive and declaratory relief with respect to section 8 of the Waterfront Commission Act may not be maintained since De Yean has failed to exhaust the administrative remedies explicitly provided by section 8. (Hunt v. Industrial Comm. of State of N. Y., 179 App., Div. 885; Bibber v. Weber, 278 App. Div. 973; Aircraft & Diesel Corp. v. Hirsch, 331 U. S. 752; Gorham Mfg. Co. v. Tax Comm., 266 U. S. 265; Acuff v.

      Mueller, 93 F. Supp. 146; Headley v. City of Rochester, 272 N. Y. 197; Yakus v. United States, 321 U. S. 414; Schieffelin v. Goldsmith, 253 N. Y. 243; Linehan v. Waterfront Comm., 116 F. Supp. 401.) II. Section 8 is constitutional. (Hazelton v. Murray, 21 N. J. 115; Staten Is. Loaders v. Waterfront Comm., 117 F. Supp. 308, 347 U. S. 439; Nebbia v. New York, 291 U. S. 502; West Coast Hotel Co. v. Parrish, 300 U. S. 379; Williamson v. Lee Opt. Co., 348 U. S. 483; Metropolitan Co. v. Brownell, 294 U. S. 580; Hawker v. New York, 152 N. Y. 234, 170 U. S. 189.) III. Congressional action in labor legislation does not forbid a valid exercise of police power by a State. (Allen-Bradley Local v. Board, 315 U. S. 740; Algoma Plywood Co. v. Wisconsin Bd., 336 U. S. 301; Thomas v. Collins, 323 U. S. 516; Garner v. Teamsters Union, 346 U. S. 485; United Workers v. Laburnum Corp., 347 U. S. 656; Auto Workers v. Wisconsin Bd., 336 U. S. 245.) IV. Section 8 does not conflict with section 7 of the National Labor Relations Act. (Hill v. Florida, 325 U. S. 538; Kelly v. Washington, 302 U. S. 1.) V. Section 8 does not conflict with article XV of the compact. VI. A felony conviction upon which sentence has been suspended is within the meaning and contemplation of section 8. (People ex rel. Marcley v. Lawes, 254 N. Y. 249; Matter of Weinrib v. Beier, 294 N. Y. 628.)
   Desmond, J.

Plaintiff De Veau is the elected secretary-treasurer of a local union of longshoremen and plaintiffs Lowery and Honan are members of that union. In this suit for a declaratory judgment and for an injunction plaintiffs make three main assertions. First, they say that section 8 of the Waterfront Commission Act (L. 1953, ch. 882, as amd.) is unconstitutional as being in conflict with section 7 of the National Labor Relations Act (IT. S. Code, tit. 29, § 157). Second, they urge that section 8 is unconstitutional as interfering with the right of employees to self-organization and collective bargaining. Third, they argue that section 8 in its prohibitions against the collection of union dues on the waterfront by a person convicted of a felony” should be held not to apply to plaintiff De Veau because his'plea of guilty in 1922 to attempted grand larceny, first degree, resulted in a suspended sentence only. The suit is brought against the District Attorney of Richmond County because that officer is, according to the complaint, threatening to prosecute under section 8 De Veau or any other officer of Local 1346, International Longshoremen’s Association, who attempts to collect union dues for that organization while plaintiff De Veau continues as an officer or agent thereof.

Special. Term dismissed the complaint for insufficiency and ordered judgment for defendant on the pleadings, holding section 8 to be constitutionally valid and holding that within that statute’s meaning plaintiff De Veau, despite the suspension of his sentence, had been “ convicted ” of a felony. The Appellate Division unanimously affirmed. The constitutional questions permitted plaintiffs to appeal to this court as of right (Civ. Prac. Act, § 588, subd. 1, cl. [a]).

The Waterfront Commission Act passed in 1953 (L. 1953, chs. 882, 883) put into statutory form a compact entered into between the States of Mew York and Mew Jersey and approved by the United States Congress. Mew Jersey enacted a substantially similar statute ([M. J.] L. 1953, ch. 202; Rev. Stat. of M. J. [1953-1954 Cum. Supp.], tit. 32, subtit. 11). Part I of the Mew York law contains legislative findings and declarations as to a number of bad labor conditions and practices on the Port of Mew York waterfront. To deal with the evils a bl-State Waterfront Commission was set up with large powers of enforcement. One of the methods adopted by the two States for ridding the waterfront of people considered responsible for the found evils was section 8 of our act (Rev. Stat. of M. J., § 32:23-80 is identical), reading in its material part as follows:

“Mo person shall solicit, collect or receive any dues, assessments, levies, fines or contributions within the state from employees registered or licensed pursuant to the provisions of this act for or on behalf of any labor organization representing any such employees, if any officer or agent of such organization has been convicted by a court of the United States, or any state or territory thereof, of a felony unless he has been subsequently pardoned therefor by the governor or other appropriate authority of the state or jurisdiction in which such conviction was had or has received a certificate of good conduct from the board of parole pursuant to the provisions of the executive law to remove the disability.”

Elsewhere in the act there are other prohibitions or restrictions against employment on certain waterfront jobs of persons convicted of crimes (see Waterfront Commission Act, pt. I, arts. V, VI, VIII, X).

Our first question of law is as to whether this State-enacted law conflicts (see Weber v. Anheuser-Busch, 348 U. S. 468) with section 7 of the Federal Taft-Hartley Act (II. S. Code, tit. 29, § 157) and is thus invalid under the Supremacy Clause (II. S. Const., art. VI, § 2). Section 7 of the Federal act reads thus:

“Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities except to the extent that such right may be affected by an agreement requiring membership in a labor organization as a condition of employment as authorized in section 8 (a) (3).”

Plaintiffs say that section 7 of the Federal law is so complete a pre-emption of the particular field that no room is left for any State action which, like section 8 of the New York act, puts limits on the right of employees engaged like plaintiffs in interstate commerce to ‘ ‘ bargain collectively through representatives of their own choosing ”. The ready answer is that Congress has not by any language in section 7 “clearly manifested” or manifested at all an “intention to exclude States from exercising their police power ” (see Auto Workers v. Wisconsin Bd., 336 U. S. 245, 253). Any doubt as to this seems to have been removed by Hotel Employees v. Sax Enterprises (358 U. S. 270). The New York Legislature acted on information in the report submitted to it in 1953 by the New York State Crime Commission (see N. Y. Legis. Doc., 1953, No. 70) and in a number of other official reports and surveys as to the connection between unsavory waterfront conditions and the records of some officers as to waterfront crimes (see Justice Brennan’s description in Hazelton v. Murray, 21 N. J. 115, 120-123). And, of course, besides the legislative findings there is a presumption of adequate inquiry and determination by the Legislature of the weight and significance of all the material presented to it (see East New York Sav. Bank v. Hahn, 293 N. Y. 622, affd. 326 U. S. 230). New York State, therefore, to deal with existing crime and disorder exercised its police power in a not unusual way by barring from certain occupations persons with criminal court records (see, as other examples of such legislation, Education Law, §§ 6502, 6613, subd. 12; § 6911, subd. 1, par. e; § 7011, subd. 1, par. a; § 7108, subd. 1; § 7210, subd. 1, par. e; § 7308, subd. 1, par. e; § 7406, subd. 1, cl. [c]; and see Matter of Barsky v. Board of Regents, 305 N. Y. 89, affd. 347 U. S. 442).

This brief examination of the Waterfront Commission Act and its purposes sufficiently rebuts all plaintiffs’ charges of unconstitutionality. A considerable list of other decisions, impressive for their unanimity, have upheld this legislation against similar attacks (Linehan v. Waterfront Comm., 116 F. Supp. 683; Staten Is. Loaders v. Waterfront Comm., 117 F. Supp. 308, both affd. 347 U. S. 439; Bradley v. Waterfront Comm., 130 F. Supp. 303; Matter of Local 824 v. Waterfront Comm., 7 A D 2d 630; Hazelton v. Murray, 21 N. J. 115, supra; International Longshoremen’s Assn. v. Hogan, 3 Misc 2d 893).

The remaining question is whether plaintiff De Veau was, when he received a suspended sentence on a felony charge many years ago, “ convicted ” of that felony within the meaning of section 8. The question is one of legislative intent, as we pointed out in Matter of Weinrib v. Beier (294 N. Y. 628) and Matter of Richetti v. New York State Bd. of Parole (300 N. Y. 357). In those two instances we found indications that in the two statutes involved (Education Law, § 1311, and Correction Law, § 242) the Legislature intended the word “ conviction ” or “ convicted ” to include a suspended sentence (and see Matter of Shapiro and Matter of Siegel, 6 A D 2d 866, motion for leave to appeal denied 5 N Y 2d 707, 708). A similar intent is readily discovered as to section 8 of the Waterfront Commission Act. The act, as we have pointed out above, contains separate prohibitions against the licensing or hiring in various waterfront occupations of persons (other than union officials) “convicted” of crimes. These bans against licensing are, however, lifted when the convicted person submits evidence to the commission that his conduct has been good for a period of five years. That five-year period is measured (see Waterfront Commission Act, pt. I, art. V) from the date of ‘1 suspension of sentence ’ ’ when sentence has been suspended. Thus, the Legislature in other parts of the Waterfront Commission Act itself clearly had in mind that some of the persons who fell under its license prohibitions might have been “ convicted in the sense only of having received suspended sentences. We conclude that the legislative purpose was to bar from waterfront union positions all persons with felony records even though never subjected to actual imprisonment or fine.

Our rejection of plaintiff De Veau’s complaint is not based on any holding that he has failed to exhaust his “ administrative remedies ”. It is said that he should have applied to the Parole Board for a “ certificate of good conduct ” (Executive Law, § 242) since the section 8 prohibition does not apply to one who after conviction has received such a certificate. But since the granting of such a certificate by the Parole Board would be an act of grace and discretion and not of duty or right, we hold that plaintiff could test the constitutionality of the statute without first applying for such a certificate.

The judgment should be affirmed, without costs.

Chief Judge Conway and Judges Dye, Ftjld, Froessel, Van Voorhis and Burke concur.

Judgment affirmed.


text:
    The People of the State of New York ex rel. Samuel Gold, Respondent, against J. Vernel Jackson, as Warden of Clinton Prison, Appellant.
    Argued November 14, 1958;
    decided March 5, 1959.

      Louis J. Lefkowitz, Attorney-General (Paxton Blair, Raymond B. Madden and J. Bruce MacDonald of counsel), for appellants.
    The crime in Florida of which relator was convicted having in it the two elements of breaking and entering and the intent to commit grand larceny, it was clearly a felony under section 404 of the New York Penal Law even though this statute substitutes 6 ‘ crime ’ ’ for ‘£ grand larceny ’ ’ as the second element. (People v. Olah, 300 N. Y. 96; People v. Viola, 264 App. Div. 38; People ex rel. Knapp v. Jackson¿ 6 A D 2d 151.)

      Victor A. Lord, Jr., for respondent.
    I. Under the multiple offender law, only those out-of-State convictions for crimes equivalent to New York State felonies will authorize imposition of the recidivist sentence. (People v. Olah, 300 N. Y. 96; People v. Swinson, 284 App. Div. 284.) II. The Florida burglary statute encompasses a crime denominated a misdemeanor in New York. III. The information and judgment entered in Florida may not be cited herein. (People ex rel. Knapp v. Jackson, 6 A D 2d 151; People ex rel. Marsh v. Martin, 284 App. Div. 156.) IV. People v. Olah should be applied in the instant case.
   Burke, J.

Relator, serving a 15-year to life sentence as a fourth felony offender, sued out a writ of habeas corpus to establish that the second of three previous felonies charged against him, being a conviction in Florida, was not shown to have been a felony if committed in New York State. The writ was sustained in that relator was remanded for resentencing as a third felony offender. Upon appeal to the Appellate Division, Third Department, that court affirmed, certifying, however, sua sponte, that a question of law was presented which ought to be reviewed by this court.

Applying the rule of People v. Olah (300 N. Y. 96), we find, under the facts of this case, that the writ was improperly sustained.

The rationale of Olah does not license the courts below, in sentencing recidivists, to disregard the indictment or information upon which a conviction in a sister State is based in determining whether the crime charged therein constitutes a felony in New York. The intent and spirit of the Olah rule require that the courts of New York abstain from considering the surplusage contained in the indictment or information which would spell out a felony under our penal statutes. Only those facts alleged in the indictment or information which are not operative or material under the applicable criminal statute of the foreign jurisdiction are to be discounted in ascertaining whether the crime charged is to be deemed a felony in New York.

The information to which relator pleaded guilty in Florida alleged that he unlawfully and feloniously entered a dwelling in Miami with intent to commit a felony. The Florida statute upon which the information was based makes it felonious (1) to break and enter a building with intent to commit a felony therein, or (2) to break out of - a building having entered with intent to commit a crime therein. (Fla. Stat. Ann., § 810.01.) The statute, therefore, describes two separate, distinct and different criminal acts. The former act, if committed in New York, would, of course, be burglary in the third degree, a felony (Penal Law, § 404); the latter would be the misdemeanor of unlawful entry (Penal Law, § 405).

The operative and material facts then, in the information under consideration, are that relator broke and entered a building with intent to commit a felony therein. There are no allegations that he broke out of a building after having entered with such an intent. Hence, there is no surplusage as to the operative facts which constitute a felony in New York as well as in Florida. It cannot be assumed that relator may have been convicted of the crime which would be a misdemeanor in New York, since no such facts are alleged in the Florida information to which he pleaded guilty.

Accordingly, the order of the Appellate Division should be reversed, and the writ of habeas corpus dismissed.

Chief Judge Conway and Judges Desmond, Dye, Fttld, Froessel and Van Voorhis concur.

Order reversed, etc.


author: Per Curiam.

text:
    Metallic Flowers, Inc., Appellant, v. City of New York et al., Respondents.
    Argued November 17, 1958;
    decided March 5, 1959.

      Borris M. Komar for appellant.
    I. The City of New York cannot under its police power seize summarily an article innocuous to public health. (Minnesota v. Barber, 136 U. S. 313; Mugler v. Kansas, 123 U. S. 623; Santell v. New Orleans & C. R. R. Co., 166 U. S. 698; Lochner v. New York, 198 U. S. 45; People ex rel. Copcutt v. Board of Health, 140 N. Y. 1; Phillips v. Gorham, 17 N. Y. 270; Colon v. Lisk, 153 N. Y. 188; People ex rel. Lemon v. Elmore, 256 N. Y. 489; Matter of Kress & Co. v. Department of Health, 283 N. Y. 55; F. T. B. Realty Corp. v. Goodman, 300 N. Y. 140; Jewish Consumptives’ Relief Soc. v. Town of Woodbury, 230 App. Div. 228, 256 N. Y. 619.) II. Section 135 of the Sanitary Code is invalid as contravening section 6815 of the State Education Law completely covering the same subject. (Matter of Bakers Mut. Ins. Co. [Dept. of Health], 301 N. Y. 21; Morengo v. Rowland, 263 Ill. 531; Matter of Kress & Co. v. Department of Health, 283 N. Y. 55; Matter of Federal Tel. & Radio Corp. [Corsi], 301 N. Y. 95; Matter of Levine v. O’Connell, 275 App. Div. 217, 300 N. Y. 658; Packer Collegiate Inst. v. University of State of N. Y., 298 N. Y. 184; Pollard v. Trivia Bldg. Corp., 291 N. Y. 19; People v. County of Westchester, 282 N. Y. 224; City of New York v. Maltbie, 274 N. Y. 90; People ex rel. Copcutt v. Board of Health, 140 N. Y. 1.) III. Section 116 of the Sanitary Code is vague and indefinite. In any case, defendants failed to prove that the labeling on plaintiff’s bracelet is false or misleading in any particular. (United States v. 6 Devices, 38 F. Supp. 236; People v. Hildebrandt, 308 N. Y. 397; People v. Vetri, 309 N. Y. 401; People v. Taylor, 192 N. Y. 398; People v. Werner, 174 N. Y. 132; People v. Diaz, 4 N Y 2d 469.) IV. The court expressly held that section 116 of the Sanitary Code is invalid, unless it requires willful intent. (Fougera & Co. v. City of New York, 224 N. Y. 269; McChord v. Louisville & N. R. R. Co., 183 U. S. 498; Seven Cases v. United States, 239 U. S. 510; Coe v. Schultz, 47 Barb. 64; People v. Richter’s Jewelers, 265 App. Div. 767, 291 N. Y. 161.) V. The Food and Drug Law did not confer power on the courts to determine the efficacy of a therapeutic device. (Stunz v. United States, 27 F. 2d 575; American School of Magnetic Healing v. McAnnulty, 187 U. S. 94; United States v. American Labs., 222 F. 104; Reilly v. Pinkus, 338 U. S. 269; United States v. Chichester Chem. Co., 298 F. 829; United States v. Fifty-Nine Tubes, 32 F. Supp. 958.) VI. The Food and Drug Law does not regulate dosage of a therapeutic remedy.

      Charles H. Tenney, Corporation Counsel (Anthony Curreri and Seymour B. Quel of counsel), for respondents.
    I. The Sanitary Code parallels and follows the substantive provisions of the Federal Food, Drug and Cosmetic Act of 1938, as do the pertinent provisions of the State Education Law. All three deem a device to be misbranded if its labeling is false or misleading in any particular, including representations as to therapeutic effect. Intent to mislead need not be shown. (United States v. Johnson, 221 U. S. 488; United States v. American Druggists’ Syndicate, 186 F. 387; United States v. 11 ¼ Dozen Packages, 40 F. Supp. 208.) II. The overwhelming weight of the evidence adduced upon the trial established that plaintiff’s device was misbranded, not just in any particular, but in almost every particular. (United States v. 23, More or Less, Articles, 192 F. 2d 308; United States v. 6 Devices, 38 F. Supp. 236; United States v. One Device, 160 F. 2d 194; United States v. 50% Dozen Bottles, 54 F. Supp. 759; American School of Magnetic Healing v. McAnnulty, 187 U. S. 94; Beilly v. Pinkus, 338 U. S. 269; United States v. Hoxsey Cancer Clinic, 198 F. 2d 273, 344 U. S. 928, 345 U. S. 914.) III. The seizure of plaintiff’s devices was authorized by the Sanitary Code, whose provisions do not conflict either with State law or with State or Federal constitutional provisions. (Matter of Bakers Mut. Ins. Co. [Dept. of Health], 301 N. Y. 21; Matter of Investigation, County of Kings, 286 App. Div. 270, 309 N. Y. 1031; Matter of Kress & Co. v. Department of Health, 283 N. Y. 55; Heller v. Department of Health, 194 Misc. 96; People v. Lewis, 295 N. Y. 42; People v. Richter’s Jewelers, 265 App. Div. 767, 291 N. Y. 161; Agnello v. United States, 269 U. S. 20; Yakus v. United States, 321 U. S. 414.) IV. In defining the crime of misbranding, the Sanitary Code is sufficiently certain to meet the requirements of due process. (Fougera & Co. v. City of New York, 224 N. Y. 269; United States v. Kaadt, 171 F. 2d 600; Triangle Candy Co. v. United States, 144 F. 2d 195; United States v. Buffalo Pharmacal Co., 131 F. 2d 500; United States v. Dotterweich, 320 U. S. 277, 320 U. S. 815; United States v. Roma Macaroni Factory, 75 F. Supp. 663.)
   Per Curiam.

In March of 1955 two Inspectors of the Board of Health of the City of New York seized, pursuant to article 8 of the Sanitary Code of the City of New York, a number of plaintiff’s “Electro-Therapeutic Bracelets” together with all accompanying literature. The basis for the seizure was that all circulars, devices and placards were misbranded and, so, liable to be seized by the Board of Health as such. The seizure was accomplished under the claimed authority of section 135 of the Sanitary Code and was carried out without any prior notice to the plaintiff and without any kind of a hearing.

We construe section 135 of the. Sanitary Code as. requiring that any condemnation proceeding taken by defendants under the Sanitary Code accord with the procedure specified in a like case prosecuted under the Education Law (§ 6815). Until those safeguards afforded plaintiff by law are observed, we may not pass upon the basic question of whether the plaintiff’s bracelet was misbranded. The seizure here having been in violation of those procedural safeguards, the plaintiff is entitled to a return of its property. The defendants and other appropriate authorities, if any, are free, of course, to initiate any proper proceedings or prosecutions, if they so choose.

The judgment of the Appellate Division should be modified by affirming so much thereof as dismisses that part of plaintiff’s complaint by which it seeks an injunction against defendants and by reversing so much thereof as dismisses that part of plaintiff’s complaint by which it seeks a return of the property which has been seized by defendants.

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

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


author: Fuld, J.

text:
    Walter K. Willmott et al., Appellants, v. Rosa Giarraputo, Respondent.
    Argued January 8, 1959;
    decided March 5, 1959.

      John Clark Toaz and Prentice W. Brower for appellants.
    I. The facts of the ease lead to but one equitable conclusion— the decree of specific performance as ordered by the trial court. II. The option agreement signed by both defendant and plaintiffs, taken together with the formal contract submitted by defendant’s attorney, satisfies the Statute of Frauds. (Crabtree v. Elisabeth Arden Sales Corp., 305 N. Y. 48; Vallone v. Regan, 1 A D 2d 690; Walter v. Hoffman, 267 N. Y. 365; M. H. Metal Prods. Corp. v. April, 251 N. Y. 146.) III. The contract to be enforced is the contract prepared by defendant’s attorney and approved by defendant’s son-in-law to whom defendant had given a power of attorney.

      Francis X. Giaccone for respondent.
    I. The memorandum containing the option to buy the real property, which was the only writing subscribed by the seller, was incomplete and therefore unenforcible under the Statute of Frauds. (Claude Neon Lights v. Federal Elec. Co., 135 Misc. 113, 232 App. Div. 786; Shur-On Std. Opt. Co. v. Viopake Co., 221 App. Div. 261; Tuttle v. Grant Co., 5 A D 2d 370; Pollak v. Dapper, 219 App. Div. 455, 245 N. Y. 628; Spielvogel v. Veit, 197 App. Div. 804; Keystone Hardware Corp. v. Tague, 246 N. Y. 79; Drake v. Sop, 131 Misc. 573; Balkum v. Marino, 274 App. Div. 903; Schubach v. Konshner, 114 Misc. 354; Ansorge v. Kane, 244 N. Y. 395; Textile Capitol Bldg. Corp. v. Wendel Foundation, 253 App. Div. 332; Nathan v. Spector, 281 App. Div. 451; Mandel v. National Assn. Bldg. Corp., 200 App. Div. 767.) II. There was never a meeting of the minds between the parties as plaintiffs rejected the offer of defendant. The counteroffer of plaintiffs amounted to a rejection of the offer of defendant. (Ray Proof Corp. v. Buffalo Gravel Corp., 5 A D 2d 823; Poel v. Brunswick-Balke-Collender Co., 216 N. Y. 310; Barber-Greene Co. v. M. F. Dollard, Jr., Inc., 239 App. Div. 655, 267 N. Y. 545; Vogt v. Longfellow, 123 Misc. 498; Stanley v. Gannon, 109 Misc. 611, 192 App. Div. 915; Farago v. Burke, 262 N. Y. 229; Montauk Assn. v. Daly, 62 App. Div. 101, 171 N. Y. 659.) III. There are no facts in this case that would warrant a court of equity to decree specific performance of a contract unenforcible under the Statute of Frauds. (Dunscombe v. Crocker-Wheeler Elec. Mfg. Co., 232 App. Div. 137; M. H. Metal Prods. Corp. v. April, 251 N. Y. 146; Walter v. Hoffman, 267 N. Y. 365; Woolley v. Stewart, 222 N. Y. 347; Todd v. Pratt, 149 App. Div. 459, 210 N. Y. 575 ; Wheeler v. Reynolds, 66 N. Y. 227; Levy v. Brush, 45 N. Y. 589; Petterson v. Pattberg, 248 N. Y. 86; Burns v. McCormick, 233 N. Y. 230.)
   Fuld, J.

In October of 1954 defendant Rosa G-iarraputo gave the plaintiffs, Mr. and Mrs. Wilhnott, an option for a period of six months to purchase a piece of property which she owned. The option agreement, although containing various terms of sale, including the description of the property, the price to be paid and the amount of the purchase-money mortgage, provided, with respect to that mortgage, that 11 the payment of interest and amortization of principal shall be mutually agreed upon at the time of entering into a more formal contract.” The plaintiffs elected to exercise the option and a formal contract was submitted to them by the defendant’s attorney on June 1, 1955. It contained a provision that the mortgage was to be paid in installments and that the entire balance was to become due in 11 years. The plaintiffs declined to sign, it being their claim that an open mortgage had been agreed upon. They consulted a lawyer who modified the contract by inserting a provision which recited that “ Said mortgage [was] to include a privilege of pre-payment and a clause permitting the mortgagor to obtain releases of part of the mortgaged premises upon payment of 125% of the mortgage burden as apportioned to the part to be released.”

After some delay—nothing turns upon it since time has been found not of the essence — the plaintiffs signed the contract as thus changed and returned it to the defendant for her signature. She rejected it and this action to compel specific performance followed.

The defendant pleaded the Statute of Frauds and asserted a counterclaim for damages. The trial court dismissed the counterclaim—with which we are not here concerned—held the statute no bar and directed specific performance. In reaching this conclusion, the court said in part that the Statute of Frauds was “ satisfied by the signing of the option agreement by defendant and the preparation of the formal contract by her attorney ”. The Appellate Division modified the judgment insofar as it mandated specific performance and dismissed the complaint upon the ground that “ The written option was unenforcible because agreement upon terms of the purchase-money mortgage was left to the future ”.

Few principles are better settled in the law of contract than the proposition that, “ If a material element of a contemplated contract is left for future negotiations, there is no contract enforcible under the Statute of Frauds or otherwise.” (Ansorge v. Kane, 244 N. Y. 395, 398; see, also, Keystone Hardware Corp. v. Tagne, 246 N. Y. 79, 82, 84; Pollak v. Dapper, 245 N. Y. 628, affg. 219 App. Div. 455.) While the price was the “material element” omitted in the Ansorge case, Pollak v. Dapper presents a situation almost identical with that now before us in that the memorandum explicitly provided that the terms of the purchase-money mortgage were to await the signing of a formal contract. Here, too, the option agreement expressly recites that the “payment of interest and amortization of principal” provided for in the mortgage were to be 1 mutually agreed upon at the time of entering into a more formal contract.” And, as one of the plaintiffs actually testified, the parties never agreed upon that matter. Not only were the plaintiffs dissatisfied with the contract drafted by the defendant’s lawyer, but their own attorney made a still further amendment to the contract, with respect to prepayment, which the parties had, so far as appears, never even discussed.

That is the end of the case.

However, in view of the reliance placed upon Crabtree v. Elizabeth Arden Sales Corp. (305 N. Y. 48), we add these few words. The plaintiff in that case sued the Elizabeth Arden company for breach of a contract of employment, relying upon an unsigned memorandum of the essential terms of the contract and a signed ‘ ‘ pay-roll change card ’ ’ which contained all of the terms except the duration of the contract. Together, these two writings were deemed sufficient to satisfy the Statute of Frauds, and oral testimony was admitted “ to show the connection between the documents and to establish the acquiescence, of the party to be charged, to the contents of the one unsigned ” (p. 55). With respect to such parol evidence, we declared, “ If that testimony does not convincingly connect the papers, or does not show assent to the unsigned paper, it is within the province of the judge to conclude, as a matter of law, that the statute has not been satisfied ” (p. 56). And, of course, if no assent is shown, not only is the statute not satisfied, but there is no contract whatsoever. In the case before us, as already noted, it is clear beyond question — and from Mr. Willmott’s own say-so, even though the defendant’s son told a different story — that the parties never reached an agreement with respect to the terms of the purchase-money mortgage.

The judgment of the Appellate Division should be affirmed, with costs.

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

Judgment affirmed.