author: Jones, J. Jasen, J. (dissenting in part). Fuchsberg, J. (dissenting). Cooke, J. (dissenting).

text:
    In the Matter of the Board of Education of the City School District of the City of New York, Appellant, v City of New York et al., Respondents.
    Argued February 8, 1977;
    decided April 5, 1977

      Larry M. Lavinsky, Jeffrey A. Mishkin and Minna J. Kotkin, New York City, for appellant.

      W. Bernard Richland, Corporation Counsel (Stanley Buchsbaum, James G. Greilsheimer, L. Kevin Sheridan, Alexander Gigante, Jr., and Diane R. Eisner of counsel), New York City, for respondents.
   Jones, J.

We hold that chapter 132 of the Laws of 1976 (commonly known as the Stavisky-Goodman Law) was duly enacted over the Governor’s veto. The Assembly voted to override the veto on March 31, 1976. We conclude that the veto was likewise overridden in the Senate on April 13, 1976, in conformity both with the provisions of section 7 of article IV of the New York State Constitution and with the rules of the Senate. We also reject the other challenges to the validity of the chapter raised by respondents.

In October and November, 1975 the Education Committee of the New York State Assembly conducted a series of public hearings in New York City to evaluate the impact on the quality of education of the existing financial emergency in the State and City of New York. On the basis of those hearings and ancillary studies, the committee reported to the Assembly in February, 1976 that the New York City school system was bearing a disproportionate share of the budget reductions necessitated by the city’s financial plight, that education, not inherently a municipal service but a State responsibility, was suffering from the fact that it was funded through the municipal budget, and that the city’s school system needed guaranteed support in the municipal budgetary process, which could be provided by State legislation requiring a minimum appropriation for the system within the city’s budget. The committee’s chairman, Assemblyman Leonard P. Stavisky, introduced a bill which, as adopted by the Assembly on January 21, 1976, amended section 2576 of the Education Law to require that annually there be appropriated for public elementary and secondary education in the City of New York "an amount equal to the average proportion of the total expense budget of such city, as amended, appropriated for the purposes of the city school district of such city in the three fiscal years of such city immediately preceding the [current] year”. On February 2, 1976 the bill, introduced by Senator Roy M. Goodman, passed the Senate.

On March 18 the bill as adopted by both houses of the Legislature was vetoed by the Governor. In compliance with the mandate of section 7 of article IV of the Constitution it was thereon returned with the Governor’s objections to the Assembly, the house in which it had originated.

On March 31 the veto was overridden by the Assembly by the required two-thirds vote. When the bill was sent to the Senate, however, on April 8 the motion to override failed to garner the necessary two-thirds support in that house. Immediately after the result of the vote was announced, a motion to reconsider the defeated motion to override was carried by a roll call ballot, but consideration was deferred when the Senate then promptly passed a motion to table the revived motion to override.

On April 13, after favorable action on a motion to take from the table and extended debate, the motion to override the Governor’s veto was passed by two thirds of the Senate. The principal question on this appeal is whether by that action the Stavisky-Goodman bill was effectively enacted over the Governor’s veto.

In this article 78 proceeding by the Board of Education of the New York City School District to compel respondents, the City of New York, its Mayor, Board of Estimate, City Council and Comptroller, to modify the city’s 1976-1977 expense budget to increase the appropriation to the Board of Education to no less than 21 Yi% of the total expense budget (which petitioner contends is the proportion required by the StaviskyGoodman Law) the courts below have held that the vote in the Senate on April 13, 1976 overriding the Governor’s veto was a nullity, classifying it as a second reconsideration of the Stavisky-Goodman bill not permitted under the Constitution and the Senate rules.

We reach a contrary conclusion.

At the very threshold we confront the fundamental question whether, under our polity of distribution of powers, the judiciary may inquire into the propriety or legality of the internal procedures by which the Legislature enacted chapter 132 of the Laws of 1976. We have only recently explicitly recognized in another context that the courts should be hesitant to intervene in the internal affairs of the Legislature (New York Public Interest Research Group v Steingut, 40 NY2d 250, 257). In some situations the judiciary has no power to intrude on the legislative process; in others, while it has the power, its exercise of such authority should be marked by respectful constraint in recognition of the status of the Legislature as one of the other two branches of State government. We conclude that in this instance the judiciary has and may properly exercise authority to determine the effectiveness of the legislative action of the Senate, as a component of the constitutionally prescribed process for overriding an executive veto. While in general the courts will not interfere with the internal procedural aspects of the legislative process, judicial review may be undertaken to determine whether the Legislature has complied with constitutional prescriptions as to legislative procedures (Norwick v Rockefeller, 33 NY2d 537; Matter of Schneider v Rockefeller, 31 NY2d 420, 434; Finger Lakes Racing Assn. v New York State Off-Track Pari-Mutuel Betting Comm., 30 NY2d 207, 219-220; People v Devlin, 33 NY 269; Franklin Nat. Bank of Long Is. v Clark, 26 Misc 2d 724).

Proceeding then to consideration of the merits of the present appeal, we note first that section 9 of article III of the Constitution vests in each house of the Legislature the power to determine the rules of its own proceedings and that, in the exercise of that power, the Senate by resolution number nine adopted rules for the year 1976, including section 8 of rule V, "Proceedings”, which provided in relevant part: "Reconsideration. a. When a question has once been put and decided, it shall be in order for any Senator to move for the reconsideration thereof; but no motion for the reconsideration of any vote shall be in order after the bill, resolution, message, report, amendment, nomination or motion, upon which the vote was taken, shall have gone out of the possession of the Senate; nor shall any motion for reconsideration be in order unless made on the same day on which the vote was taken, or within the next three days of the actual session of the Senate thereafter. Nor shall any question be reconsidered more than once.” By the adoption of this rule the Senate determined that all substantive questions to be acted on in the 1976 session were subject to a single motion to reconsider.

We turn then to section 7 of article IV of the Constitution (n 1, supra, p 553), which both courts below held was violated by the Senate override vote of April 13, 1976. That section expressly provides that after executive veto a bill shall be returned to the house in which it originated with a statement of the Governor’s objections, and that that house shall "proceed to reconsider it”. If two thirds of the originating house shall vote to override, the bill then goes to the other house by which it shall likewise be "reconsidered”. It is apparent that by the use of the verb "reconsider” in this constitutional provision it was not intended to refer to the familiar parliamentary procedure (here embodied in Senate rule V, § 8) by which a deliberative assembly again takes up action it has previously effected, to confirm, to amend or to nullify that action; in short, to "reconsider” in the constitutional sense is not the same as to reconsider in parliamentary usage. In the case of an executive veto, the previous action of the legislative houses in passing the particular bill has already been effectively nullified by the action of the Governor; it is only in consequence of the constitutional provision that the bill comes before the Legislature again. What is assured by the constitutional mandate of "reconsideration” is that the Legislature shall address the bill a second time, with the possibility, after review of the bill and the Governor’s objections, of new legislative action by which the two houses may by a two-thirds vote in each override the veto of the Governor. The Constitution provides that in such event the bill shall "become a law notwithstanding the objections of the governor”. In both political and legislative reality the issue as to whether to override is discrete and quite different from the earlier question as to whether to enact the legislation in the first place.

Thus, on April 8, 1976, the question before the Senate, as phrased by its presiding officer, was, "ought [the StaviskyGoodman bill] become a law notwithstanding the veto of the Governor”. The motion that initiated this item of legislative business and brought on the question was an original main motion "that the veto of the Governor be overridden”. As would be true of any other main motion bringing an item of substantive legislative business before the house, this motion was subject to all the procedural steps available under the applicable rules of the Senate. Thus, the legislative address to the question before the house included, inter alia, the possibility of one motion for reconsideration after the question had been initially acted on. Other than its prescription as to the manner of tallying the final, effective vote, we find nothing in the Constitution which foreclosed recourse to normal parliamentary procedure in the Senate’s consideration on the return of the vetoed bill.

The only pertinent historical antecedent called to our attention, while distinguishable to the extent that in that instance there was never a final vote on the motion to override, constitutes persuasive precedential authority for the proposition that a motion to reconsider is in order when the Senate addresses a motion to override an executive veto. In 1879 following the failure of the Senate to override the Governor’s veto of "An act supplemental to the Code of Civil Procedure”, a motion to reconsider was carried and the matter then laid upon the table, never thereafter to be taken from the table. In that instance and, even more important, in the present, no objection was raised to the motion to reconsider. Absent such objection, followed by a ruling by the presiding officer and possibly a vote on an appeal from such ruling, we must take it that there was unanimous consent to the motion to reconsider. Certainly both instances provide evidence of the practical interpretation placed by the Senate on its own rules of procedure, namely, that a motion to reconsider is in order when the Senate is disposing of a main motion to override a Governor’s veto. It would be inappropriate for the courts to intervene to abrogate the Senate’s views as to the conduct of its own legislative procedures other than in some cases to enforce a constitutional prescription.

The motion to reconsider—which suspended all action dependent on the vote to be reconsidered until either the reconsideration was completed or the time for further action had expired (Robert’s Rules of Order [rev], p 270)—as well as the motions to table and to take from the table and the final revote on the override motion were all incident to and normal parliamentary aspects of the final action on the main motion to override the veto. Thus, in our analysis, there was but a single item of legislative business before the Senate—should the veto be overridden—and the Senate took no more action in the process of its disposition of that item than it might have taken with respect to any other main motion before the house. Even if the provisions of section 7 of article IV of our State Constitution be interpreted to permit but a single legislative consideration of a motion to override, nothing suggests that such consideration must be restricted to a single vote in a truncated process quite foreign to normal parliamentary procedure. (Cf. Kay Jewelry Co. v Board of Registration, 305 Mass 581; State ex rel. Coleman v Lewis, 181 SC 10.)

Much emphasis has been laid by respondents on what are said to be persuasive precedents in the Congress of the United States. In 1844 when the House of Representatives was considering whether to override a presidential veto under a substantially similar constitutional provision, after there had been a failure to override on the first vote a motion was made to reconsider. The Speaker ruled that a motion to reconsider was not in order. On appeal the ruling of the Speaker was sustained by vote of the full House. (5 Hinds, Precedents of House of Representatives, § 5644 [1907].) In 1913 a similar ruling was made and upheld. When the House failed to override on the first vote, a member offered a motion to reconsider. On a point of order being raised from the floor, the Speaker, referring to the 1844 ruling and the apparent acquiescence of the House in that ruling over the span of the intervening years, again ruled the motion to reconsider out of order and his ruling was accepted by the House (8 Cannon Precedents of House of Representatives, § 2778 [1936]).

In our evaluation, recognition of these rulings serves only to support the fundamental proposition that, subject to some constitutional strictures, any deliberative assembly is the final arbiter of its own internal procedures. The House of Representatives effectively determined that in its House the normal motion to reconsider could not be applied to a proposal to override a presidential veto. These Federal rulings might well have been relevant to any consideration by the President of our State’s Senate had an objection been raised to the motion to reconsider. As stated, however, no such objection had been voiced in the Senate in 1879 and none was raised in April, 1976. Had there been an objection and had a ruling been made and sustained that a motion to reconsider was not in order, we would, of course, be concluded thereby. On the other hand, for the court without that predicate to impose on' our State Senate a parliamentary ruling accepted by the Congress for the conduct of its internal affairs could indeed be classified as judicial usurpation.

It is thus our conclusion that the Stavisky-Goodman bill was effectively passed over the Governor’s veto in the Senate as well as in the Assembly and became law, notwithstanding the objections of the Governor.

The several remaining grounds on which the validity of chapter 132 is attacked are unavailing. First, the legislation does not run afoul the home rule provisions of the Constitution. Education is expressly made a State responsibility (NY Const, art XI, § 1), and is explicitly exempted from home rule restriction (art IX, § 3, subd [a], par [1]). We have held that education is a State concern (Lanza v Wagner, 11 NY2d 317, 326), and that legislation dealing with matters of State concern even though of localized application and having a direct effect on the most basic of local interests does not violate the constitutional home rule provisions (e.g., Wambat Realty Corp. v State of New York, 41 NY2d 490; Robertson v Zimmermann, 268 NY 52; Adler v Deegan, 251 NY 467; City of New York v Village of Lawrence, 250 NY 429). Indeed the Stavisky-Goodman Law was an amendment to the prior, long-standing statutory requirement of a minimum appropriation expressed in absolute rather than relative terms (see Education Law, § 2576, subd 5, prior to 1976 amendment).

Second, we agree with Special Term that the statutory reference to "the total expense budget of such city, as amended” for the immediately preceding three fiscal years does not create such difficulties of implementation as to vitiate the statute. As to the first two of the three years, no uncertainty at all obtains because those budgets will in each case have been finally amended before the figures are required for the purpose of applying the Stavisky-Goodman Law. For the third and only year as to which the city may claim ambiguity, we believe that the city’s own practice when it is faced with annual budgets which remain subject to amendment for a substantial part of the following year can provide a reasonable construction of the phrase "as amended” and permit implementation of the statute to accomplish its intended purpose. The New York City Charter had required that the Mayor’s budget message reflect the current budget "as last modified as of the fifteenth day of March of the current year” (§ 117, subd b, par 2). The Mayor’s proposed budget published about April 15 and the budget as finally adopted in early summer both set forth the current expense budget as amended through March 15. Finally, the passage by the Legislature in June, 1976, following the override of the Governor’s veto of the StaviskyGoodman Law, of amendments to that law to "clarify” the calculation of the three-year base period for computing the percentage to be appropriated, which specified that the third year’s expense budget should be "as amended as of March 15” but which failed to become effective because of subsequent executive veto, is strong evidence of the prior legislative intent that the law as originally enacted was to be and should be interpreted as requiring inclusion of the budget of the last preceding year as amended on March 15 (cf. Matter of Chatlos v McGoldrick, 302 NY 380, 388).

Finally, as Special Term concluded, the city’s argument that it is not obligated to comply with the statute in question because the Board of Education did not file a budget estimate by September 1, 1975 "merits no discussion” (88 Misc 2d 179, 190). Again, prior practice is a complete response; at least until advance notice of intention to insist on compliance with the statutory directive such practice gave rise to an effective estoppel. The Deputy Chancellor of the school system states that the Board of Education has never, within the memory of anyone connected with the budgetary process, submitted a budget estimate in September nor been requested to do so. The city on this appeal has not controverted that statement. Not only that, but compliance with any filing as to fiscal 1976-1977 was an impossibility inasmuch as the filing date for any budget estimate for that year had expired seven and one-half months before the Stavisky-Goodman Law was enacted. To construe the law as would one dissenter would be to nullify the effective date, February 1, 1976, expressly fixed by the Legislature.

It remains to be expressly stated that in upholding the Stavisky-Goodman Law we do not reach or consider the several arguments urged on the courts below and then on us on this appeal as to the relationship between the Stavisky-Goodman Law and the Financial Emergency Act (L 1975, ch 868). Nor do we now decide which law should control if there is an irreconcilable inconsistency between them. We do not intend by this disclaimer to suggest that the Stavisky-Goodman Law is merely "an expression of policy and exhortation” (88 Mise 2d 185). On the contrary, standing alone it mandates a minimum appropriation for the purpose of the city school district of the City of New York. Whether, however, and to what extent, if at all, the appropriations and expenditures pursuant thereto are subject to the provisions of the Financial Emergency Act or to oversight or intervention by the Emergency Financial Control Board cannot properly be decided in the present proceeding because that board is not a party to the proceeding. The record does not disclose that that board has ever considered a requested appropriation made in accordance with thé dictate of the Stavisky-Goodman Law, and cannot be said either to have waived its right, if any, to object thereto or to have acquiesced therein.

Because we do not resolve issues with respect to the interrelation between the Stavisky-Goodman Law and the Financial Emergency Act, it would be inappropriate to grant the relief sought by way of mandamus in the present article 78 proceeding. Accordingly, to grant the relief desired to the maximum extent permitted in the procedural posture of this appeal, pursuant to the provisions of CPLR 103 (subd [c]) we convert this article 78 proceeding to an action for a declaratory judgment. As so converted we remit the case for the entry of a judgment in conformity with this opinion declaring: that chapter 132 of the Laws of 1976 was duly enacted and does not violate home rule proscriptions; that the reference in the statute to the total expense budget of the city as amended shall refer with reference to the fiscal year of the city immediately preceding any current year to that budget as amended as of March 15; and that the failure of the Board of Education to have filed a budget estimate by September 1, 1975 does not excuse the city from its obligation to comply with the law. Such judgment shall, however, contain appropriate express reservation as to the interrelation of the Stavisky-Goodman Law and the Financial Emergency Act.

The order of the Appellate Division is accordingly reversed, with costs, and the case remitted to Supreme Court, New York County, for further proceedings in accordance with this opinion.

Jasen, J. (dissenting in part).

I am in full agreement with the court’s holding that the Stavisky-Goodman Law was validly enacted into statute over the Governor’s veto. Further, the statute is a valid exercise of the Legislature’s broad constitutional authority to provide for the maintenance and support of public schools throughout the State, a traditional duty and power which was not in the slightest diminished by the later constitutional grant of local home rule. (NY Const, art XI, § 1; art IX, § 3, subd [a], par [1].) The Stavisky-Goodman Law, like most enactments of substance, is not without its critics. There are those who question the wisdom of the policy choice it embodies. But such arguments are not appropriately considered in this forum. Ultimate constitutionality should not depend on whether we, or any four of us, think the statute wise and agree with its policy. We should be guided not by policy preferences, but by sound principles of constitutional interpretation. Mindful of the limited role of the neutral courts and with due regard for the Legislature’s province in the resolution of governmental issues, I agree with the court that the statute does not violate the provisions of the State Constitution.

Nevertheless, the question still remains whether the plaintiff, who seeks the benefits of the statute, has sufficiently complied with its terms to entitle it to recover under it for the 1976-1977 fiscal year. It is here that I part company with the majority. While the court seemingly would apply the statute to the present fiscal year, I would not.

The City of New York operates under a fiscal year which commences on July 1 of each year and terminates on the ensuing June 30. (New York City Charter, § 110.) It has long been provided that in cities with a population of one million or more, the Board of Education for such city shall prepare an itemized estimate for the amount of money necessary to fulfill its purposes for the ensuing fiscal year and shall file the estimate with the Mayor of the city on or before the first day of September. (Education Law, § 2576, subds 1, 5.) The Stavisky-Goodman Law requires that if the estimate requests an amount equal to or less than the average appropriation for the previous three fiscal years, such request must be honored by the city. (Education Law, § 2576, as amd by L 1976, ch 132.)

Although plaintiff Board of Education would reap the benefit of the Stavisky-Goodman Law, it has not complied with its terms. The board did not submit its estimate on or before September 1, 1975, the time limited for the estimate of fiscal year 1976-1977 expenditures. Hence, the time for the submission of a proper estimate had already lapsed before the Stavisky-Goodman Law even became effective. Although the Legislature directed that the statute take effect immediately (April 13, 1976), the law was explicitly made retroactive only to February 1, 1976. (L 1976, ch 132, § 2.) Nor did the Legislature alter, or extend, or even eliminate, as it might have, the time period for filing the required estimate. Hence, the board’s failure to file a timely estimate for the 1976-1977 fiscal year was specifically left untouched by the Legislature’s action.

Now that the Legislature has amended section 2576 of the Education Law to insulate the Board of Education from budgetary cutbacks, the board seeks to be relieved of its duty to comply with the other provisions of the same statute. The board argues that the city never before required or requested it to comply. Yet the city never previously had as much need for advance notice of the size of the board’s requested funding. With the enactment of the 1976 amendment, the amount the city may budget for its other operations depends on the size of the education request from the board. Proper filing in September, as required by statute, gives the city ample opportunity to adjust its level of expenditures so that it may comply with and fulfill the board’s estimate. Certainly the board had no vested right to expect that the city would always forgive the board’s own persistent violation of statute. The practical construction urged by the board amounts to no more than frequent but tolerated statutory violations. This kind of practice cannot work to impliedly repeal an enactment of the Legislature. (See Matter of Hellerstein v Assessor of Town of Islip, 37 NY2d 1, 10.) In short, the board would have it both ways. The city must comply with the technical requirements of section 2576, but the board need not. I find such an approach to be unreasonable.

Of crucial importance is the fact that the city’s current fiscal year has but three months left to run. The board would have the city suddenly revise its nearly completed financial program for this fiscal year. This also, in my view, is unreasonable. The city, in good faith, challenged the constitutionality of the statute. Nothing happened in the courts below that would have given the city notice that its challenge was devoid of substance. Indeed, the issue is decided here only by a divided court. City government is presently attempting to fund its budget for the next fiscal year, 1977-1978, for which, presumably, the board filed a timely estimate. The city should not be required, as the board would have it, to drastically alter its present financial arrangements. Significantly, the time remaining in the school year is also short. Since the city will require time to revise its budget and locate funds, the school year will be virtually complete before any additional funds are received by the board. The children of the city, who are the ultimate beneficiaries of the Stavisky-Goodman Law, will not be benefited by an unnecessarily sudden and dramatic application of the statute.

Accordingly, I would modify the order of the Appellate Division to declare the Stavisky-Goodman Law constitutional and would affirm the order as modified.

Fuchsberg, J. (dissenting).

I agree with the majority that we may review the legislative action of the Senate in order to determine whether that body has complied with constitutional requirements in overriding the Governor’s veto of the Stavisky-Goodman bill and that, on the basis of the history and analysis so clearly set out in Judge Jones’ opinion, upon such review it must be concluded that the bill was effectively passed over the Governor’s veto.

However, for reasons too well articulated in the dissent by Judge Cooke to bear repetition here, it is also my view that the bill, though no doubt commendably intended merely to assure a more adequate allocation of financial resources for public education in New York City, adopts a formula which would pervade every aspect of that city’s budgeting and, by so doing, impermissibly undermines its home rule powers. That result is interdicted by both the spirit and letter of the constitutional safeguards our people have erected to assure themselves of the advantages of self-government at the local level (NY Const, art IX, § 3, subd [a], par [3]). These safeguards, which apply as well to the smallest "county, city, town, or village” (NY Const, art IX, § 3, subd [d], par [2]), serve equally to protect the State’s and Nation’s greatest city from being denuded of all powers of self-management as it grapples heroically with the special problems and opportunities, not excluding of course the educational ones, it faces today.

Cooke, J. (dissenting).

I would affirm the Appellate Division which unanimously affirmed Special Term.

I agree with those courts that the Governor’s veto was never legally overridden and therefore that the purported amendment never became law.

The salient facts may be stated briefly. On March 12, 1976 the Legislature passed the Stavisky-Goodman bill (Assembly 9035-A) and sent it to the Governor. Six days later the Governor vetoed the bill and returned it to the Assembly where it had originated. On March 31, the Assembly overrode the veto. On April 8, the Senate reconsidered the vetoed bill and by a vote of 38 to 20, individually recorded by yeas and nays, failed to override the veto. The Lieutenant Governor, the Presiding Officer of the Senate, announced: "The Governor’s veto has been sustained.” The Senate Majority Leader then moved "to reconsider the vote by which * * * this override was defeated” and the motion was carried. The matter was then, on motion, tabled.

Section 7 of article IV of the State Constitution, entitled "Action by governor on legislative bills; reconsideration after veto”, provides in part: "Every bill which shall have passed the senate and assembly shall, before it becomes a law, be presented to the governor; if he approve, he shall sign it; but if not, he shall return it with his objections to the house in which it shall have originated, which shall enter the objec-

tions at large on the journal, and proceed to reconsider it. If after such reconsideration, two-thirds of the members elected to that house shall agree to pass the bill, it shall be sent together with the objections, to the other house, by which it shall likewise be reconsidered; and if approved by two-thirds of the members elected to that house, it shall become a law notwithstanding the objections of the governor. In all such cases the votes in both houses shall be determined by yeas and nays, and the names of the members voting shall be entered on the journal of each house respectively(Emphasis supplied.) The provision of the State Constitution is "virtually identical” to the United States constitutional provision regarding passage of a bill over a veto which has been consistently interpreted since 1844 to mean that a motion to reconsider may not be applied to the vote on reconsideration of a bill returned with the objections of the President (Jefferson’s Manual and Rules of House of Representatives [1973], § 106; Cannon’s Procedure in House of Representatives [1963], p 468; 8 Cannon, Precedents of House of Representatives [1936], § 2778; 5 Hinds, Precedents of House of Representatives [1907], § 5644). As Speaker Champ Clark noted in 1913: "A motion to reconsider is carried by a simple majority vote, but a bill can be passed over the presidential veto only by a two-thirds majority. If any other view were taken * * * we might go on in a circle to the end of the session, never getting anywhere” (8 Cannon, Precedents of House of Representatives [1936], § 2778). Although the appellant Board of Education states that it has been the practice in New York "to permit reconsideration of override votes”, it cites but two instances, one in the Assembly and the other in the Senate, in support of the claimed practice but in each of these instances the tabled motions were never removed from the table. Neither resulted in the purported enactment of a law and, evidently, there was no judicial testing of such a law. Appellant also cites two out-of-State decisions in support of its position.

It is a recognized rule of parliamentary law that a vote on the reconsideration of a vetoed bill cannot be reconsidered again since, as stated in American Manual of Parliamentary Law or The Common Law of Deliberative Assemblies by Fish at page 91, "A motion cannot be reconsidered * * * (4) If it has been Reconsidered under a veto.” Authorities and precedents aside, an analysis of the relevant portion of section 7 of article IV of our Constitution itself logically speaks for affirmance. The words "reconsider” and "reconsideration” appear therein and at no place in the steps outlined in detail is any reference to "reconsideration of the reconsideration” or to "consider” or "consider anew”, such as would be the situation where a bill was to be treated with all ordinary parliamentary maneuvers, as if in the first instance or de novo. This is obvious from the very terms of the section, because when the bill goes back to a house of the Legislature for reconsideration it is not subject to amendment. "No amendment can be made in considering a vetoed bill” (Fish, American Manual of Parliamentary Law or Common Law of Deliberative Assemblies, p 85). The section, speaking of "the” bill refers to the same bill which has been passed and vetoed. The constitutional mandate applicable "[i]n all such cases”, referring to the action of "reconsideration” in each of the legislative houses, that "the votes in both houses shall be determined by yeas and nays, and the names of the members voting shall be entered on the journal of each house” indicates that such a vote on yeas and nays shall be final and conclusive. The Constitution contemplated a "reconsideration” terminating in one vote and the recording of that vote as specified. Otherwise, the matter could go on interminably—a result to be avoided and not within the constitutional provision.

It must be accepted that section 8 of rule V of the Senate rules for 1976, entitled "Reconsideration”, cannot nullify or supersede the constitutional provision regarding reconsideration of a bill which has been vetoed. Said rule, however, is not applicable to reconsideration of the vetoed bill since, as the majority recognizes (p 539), "by the use of the verb 'reconsider’ in this constitutional provision it was not intended to refer to the familiar parliamentary procedure (here embodied in Senate rule V, § 8)” and that "to 'reconsider’ in the constitutional sense is not the same as to reconsider in parliamentary usage”. The constitutional procedure for reconsideration after veto is unique and not an ordinary parliamentary question. Even under the rule, reasonably interpretated, if it were relevant, the second vote or reconsideration here taken after veto was not authorized since, in all reality, the same "question”, the enactment of the bill into law, "has once been put and decided”—when the bill originally passed the body. The essence of the question is the same even though the vote majority required has changed. Support for this proposition is found in Barclay, Digest of the Rules of the House of Representatives US (1868), where it is stated at page 227: "The main question in the consideration of a vetoed bill is, 'Will the House on reconsideration agree to pass the bill?’ ”

The solution of the home rule question is likewise uncomplicated. The Stavisky-Goodman bill (see L 1976, ch 132) purported to amend section 2576 of the Education Law (subd 5) by mandating that the City of New York appropriate funds for public elementary and secondary education in "an amount equal to the average proportion of the total expense budget of such city, as amended, appropriated for the purposes of the city school district of such city in the three fiscal years of such city immediately preceding the [current] year”. This the Legislature could not do, constitutionally.

The people of the State of New York, in their Constitution, have granted to every local government the "power to adopt and amend local laws not inconsistent with the provisions of [said] constitution or any general law relating to its property, affairs or government” same being "[i]n addition to powers granted in the statute of local governments or any other law” (NY Const, art IX, § 2, subd [c]). At the same time, they have withheld from the Legislature the power, except as expressly otherwise provided, to interfere with "the property, affairs or government of a local government” (NY Const, art IX, § 3, subd [a], par [3]). One of those express exceptions encompasses the duty of the Legislature to "provide for the maintenance and support of a system of free common schools, wherein all the children of this state may be educated” (NY Const, art XI, § 1; see art IX, § 3, subd [a], par [1]): However, this power of the Legislature as to education is not so embracive as to disregard and destroy other constitutional guarantees in respect to entirely different and unrelated governmental functions. Undoubtedly, as suggested by Special Term, the Legislature could have passed laws requiring the adherence by the City of New York to certain educational standards and, very likely, to have required certain specified minimum expenditures, based on a per pupil or other basis, in furtherance of those quality criterions. The Stavisky-Goodman bill, as incorporated in chapter 132 of the Laws of 1976, compels the appropriation by the City of New York of an amount not grounded on the city’s educational needs but rather on "the average proportion of the total expense budget of such city * * * appropriated for the purposes of the city school district of such city in the three fiscal years of such city immediately preceding the [current] year” (emphasis added). By using "the total expense budget” average as the denominator of the fraction or formula, the bill directly interferes with other components of the total budget, thereby interfering with and exercising control over the constitutionally protected "property, affairs or government” of New York City—matters no less than, to name a few, the management and use of its highways and property, the compensation of its officers and employees, the transaction of its business, the discharge of claims, and the government, protection, order, conduct, safety, health and well being of persons or property in the City of New York (see NY Const, art IX, § 2). Instead, at most and in order to avoid unconstitutional entanglement, the thrust of legislative attention should have been towards the numerator alone, the amount expended in past years for school purposes, merely as a guide for required current or future educational expenditures.

Under the guise of education, there is no constitutional justification to exercise control, partial or otherwise, over practically the entire gamut of home rule exclusively committed by the Constitution to the City of New York or, indeed, perhaps on another occasion to any other local government. By command, the grant of power to local governments, under article IX (§ 2, subd [c], par [10]) of the Constitution, to provide for the "government, protection, order, conduct, safety, health and well-being of persons or property therein” is to be liberally construed (NY Const, art IX, § 3, subd [c]; Matter of Krolick v Lowery, 32 AD2d 317, 322, affd 26 NY2d 723, cert den 397 US 1075).

Thus, the Stavisky-Goodman bill, conceding arguendo that it was validly enacted, violates the home rule provisions of the State Constitution and is void.

The petition should be dismissed. However, in the event of the conversion of the proceeding to a declaratory judgment action, there should be a remittal for entry of judgment declaring that chapter 132 of the Laws of 1976 was not validly enacted into law and also that it is otherwise void, being violative of the home rule provisions of the State Constitution.

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

Order reversed, etc.

      . Insofar as relevant, the section provides: "Every bill which shall have passed the senate and assembly shall, before it becomes a law, be presented to the governor; if he approve, he shall sign it; but if not, he shall return it with his objections to the house in which it shall have originated, which shall enter the objections at large on the journal, and proceed to reconsider it. If after such reconsideration, two-thirds of the members elected to that house shall agree to pass the bill, it shall be sent together with the objections, to the other house, by which it shall likewise be reconsidered; and if approved by two-thirds of the members elected to that house, it shall become a law notwithstanding the objections of the governor. In all such cases the votes in both houses shall be determined by yeas and nays, and the names of the members voting shall be entered on the journal of each house respectively.”

      . Parenthetically we observe that the "wisdom of legislative enactment is a matter for the determination of the Legislature and not the courts” (Matter of Rosenthal v Hartnett, 36 NY2d 269, 273). Thus, we presume to express no view as to the desirability or practicability of the Stavisky-Goodman Law (cf. Montgomery v Daniels, 38 NY2d 41, 56; People v Broadie, 37 NY2d 100, 117-118; Matter of Taylor v Sise, 33 NY2d 357, 365).

      . The Senate rules contain no express statement as to the effect of a motion for reconsideration, just as they generally do not set forth basic parliamentary rules and details. There thus is applicable the principle set forth in Matter of Anderson v Krupsak (40 NY2d 397, 405) that when the Legislature has not adopted rules for a particular subject or purpose it "is governed by the generally accepted rules of parliamentary procedure which flow from general principles of common law”.

       Section 7 of article I of the United States Constitution provides in pertinent part: "Every Bill which shall have passed the House of Representatives and the Senate, shall, before it becomes a Law, be presented to the President of the United States; If he approve he shall sign it, but if not he shall return it, with his Objections to that House in which it shall have originated, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of that House shall agree to pass the Bill, it shall be sent, together with the Objections, to the other House, by which it shall likewise be reconsidered, and if approved by two thirds of that House, it shall become a Law. But in all such Cases the Votes of both Houses shall be determined by Yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of each House respectively.”


source: Caselaw Access Project

author: Fuchsberg, J. Chief Judge Breitel (dissenting).

license: Public Domain

text:
    Donald C. Parvi, Appellant, v City of Kingston, Respondent, et al., Defendant.
    Argued February 8, 1977;
    decided April 5, 1977

      David M. Barnovitz, Kingston, for appellant.

      Francis X. Tucker and Vernon Murphy, Kingston, for respondent.
   Fuchsberg, J.

This appeal brings up for review the dismissal, at the end of the plaintiff’s case, of two causes of action, both of which arise out of the same somewhat unusual train of events. One is for false imprisonment and the other for negligence. The judgment of dismissal was affirmed by the Appellate Division by a vote of three to two. The issue before us, as to each count, is whether a prima facie case was made out. We believe it was.

Bearing in mind that, at the procedural point at which the case was decided, the plaintiff was entitled to the benefit of the most favorable inferences that were to be drawn from the record (Andersen v Bee Line, 1 NY2d 169, 172; 10 Carmody-Wait 2d, NY Prac, § 70:359, p 627 et seq.), we turn at once to the proof. In doing so, for the present we rely in the main on testimony plaintiff adduced from the defendant’s own employees, especially since plaintiff’s own recollection of the events was less than satisfactory.

Sometime after 9:00 p.m. on the evening of May 28, 1972, a date which occurred during the Memorial Day weekend, two police officers employed by the defendant City of Kingston responded in a radio patrol car to the rear of a commercial building in that city where they had been informed some individuals were acting in a boisterous manner. Upon their arrival, they found three men, one Raymond Dugan, his brother Dixie Dugan and the plaintiff, Donald C. Parvi. According to the police, it was the Dugan brothers who alone were then engaged in a noisy quarrel. When the two uniformed officers informed the three they would have to move on or be locked up, Raymond Dugan ran away; Dixie Dugan chased after him unsuccessfully and then returned to the scene in a minute or two; Parvi, who the police testimony shows had been trying to calm the Dugans, remained where he was.

In the course of their examinations before trial, read into evidence by Parvi’s counsel, the officers described all three as exhibiting, in an unspecified manner, evidence that they "had been drinking” and showed "the effects of alcohol”. They went on to relate how, when Parvi and Dixie Dugan said they had no place to go, the officers ordered them into the police car and, pursuing a then prevailing police "standard operating procedure”, transported the two men outside the city limits to an abandoned golf course located in an unlit and isolated area known as Coleman Hill. Thereupon the officers drove off, leaving Parvi and Dugan to "dry out”. This was the first time Parvi had ever been there. En route they had asked to be left off at another place, but the police refused to do so.

No more than 350 feet from the spot where they were dropped off, one of the boundaries of the property adjoins the New York State Thruway. There were no intervening fences or barriers other than the low Thruway guardrail intended to keep vehicular traffic on the road. Before they left, it is undisputed that the police made no effort to learn whether Parvi was oriented to his whereabouts, to instruct him as to the route back to Kingston, where Parvi had then lived for 12 years, or to ascertain where he would go from there. From where the men were dropped, the "humming and buzzing” of fast-traveling, holiday-bound automobile traffic was clearly audible from the Thruway; in their befuddled state, which later left Parvi with very little memory of the events, the men lost little time in responding to its siren song. For, in an apparent effort to get back, by 10:00 p.m. Parvi and Dugan had wandered onto the Thruway, where they were struck by an automobile operated by one David R. Darling. Parvi was severely injured; Dugan was killed. (Parvi elected not to appeal from the dismissal of his cause of action against Darling, who originally had been joined as an additional defendant.)

THE CAUSE OF ACTION FOR FALSE IMPRISONMENT

With these facts before us, we initially direct our attention to Parvi’s cause of action for false imprisonment. Only recently, we had occasion to set out the four elements of that tort in Broughton v State of New York (37 NY2d 451, 456), where we said that "the plaintiff must show that: (1) the defendant intended to confine him, (2) the plaintiff was conscious of the confinement, (3) the plaintiff did not consent to the confinement and (4) the confinement was not otherwise privileged”.

Elements (1) and (3) present no problem here. When the plaintiff stated he had no place to go, he was faced with but one alternative—arrest. This was hardly the stuff of which consent is formed, especially in light of the fact that Parvi was, in a degree to be measured by the jury, then under the influence of alcohol. It is also of no small moment in this regard that the men’s request to be released at a place they designated was refused. Moreover, one of the policemen testified that his fellow officer alone selected the location to which Parvi was taken; indeed, this was a place to which the police had had prior occasion to bring others who were being "run out of town” because they evidenced signs of intoxication. Further, putting aside for the time being the question of whether such an arrest would have been privileged, it can hardly be contended that, in view of the direct and willful nature of their actions, there was no proof that the police officers intended to confine Parvi.

Element (2), consciousness of confinement, is a more subtle and more interesting subissue in this case. On that subject, we note that, while respected authorities have divided on whether awareness of confinement by one who has been falsely imprisoned should be a sine qua non for making out a case (Barker v Washburn, 200 NY 280; Robalina v Armstrong, 15 Barb 247; Herring v Boyle, 1 Cr M & R 377, 149 Eng Rep 1126; Meering v Grahame White Aviation Co., 122 L & T 44; see Halpern, Intentional Torts and the Restatement, 7 Buffalo L Rev 7; Prosser, False Imprisonment: Consciousness of Confinement, 55 Col L Rev 847), Broughton (supra, p 456) has laid that question to rest in this State. Its holding gives recognition to the fact that false imprisonment, as a dignitary tort, is not suffered unless its victim knows of the dignitary invasion. Interestingly, the Restatement of Torts 2d (§ 42) too has taken the position that there is no liability for intentionally confining another unless the person physically restrained knows of the confinement or is harmed by it.

However, though correctly proceeding on that premise, the Appellate Division, in affirming the dismissal of the cause of action for false imprisonment, erroneously relied on the fact that Parvi, after having provided additional testimony in his own behalf on direct examination, had agreed on cross that he no longer had any recollection of his confinement. In so doing, that court failed to distinguish between a later recollection of consciousness and the existence of that consciousness at the time when the imprisonment itself took place. The latter, of course, is capable of being proved though one who suffers the consciousness can no longer personally describe it, whether by reason of lapse of memory, incompetency, death or other cause. Specifically, in this case, while it may well be that the alcohol Parvi had imbibed or the injuries he sustained, or both, had had the effect of wiping out his recollection of being in the police car against his will, that is a far cry from saying that he was not conscious of his confinement at the time when it was actually taking place. And, even if plaintiff’s sentient state at the time of his imprisonment was something less than total sobriety, that does not mean that he had no conscious sense of what was then happening to him. To the contrary, there is much in the record to support a finding that the plaintiff indeed was aware of his arrest at the time it took place. By way of illustration, the officers described Parvi’s responsiveness to their command that he get into the car, his colloquy while being driven to Coleman Hill and his request to be let off elsewhere. At the very least, then, it was for the jury, in the first instance, to weigh credibility, evaluate inconsistencies and determine whether the burden of proof had been met.

Passing on now to the fourth and final element, that of privilege or justification, preliminarily, and dispositively for the purpose of this appeal, it is to be noted that, since the alleged imprisonment here was without a warrant and therefore an extrajudicial act, the burden not only of proving, but of pleading legal justification was on the city, whose failure to have done so precluded it from introducing such evidence under its general denial (Broughton v State of New York, 37 NY2d 451, 456, supra; Woodson v New York City Housing Auth., 10 NY2d 30).

Since the city nevertheless contends that as a matter of law a privilege to arrest was established in this case and since, as already indicated, in our view of the case there will have to be a new trial, raising the possibility of an amendment of the pleadings, we deem it appropriate to comment. The city’s argument runs that a police officer is not required to arrest for drunkeness but may exercise discretion to take an intoxicated person home or to some other safe place as the circumstances dictate and that that was what was done here.

In Sindle v New York City Tr. Auth. (33 NY2d 293), we reflected on the scope of the privileges which constitute justification. We there said (p 297), "[Generally, restraint or detention, reasonable under the circumstances and in time and manner, imposed for the purpose of preventing another from inflicting personal injuries or interfering with or damaging real or personal property in one’s lawful possession or custody is not unlawful”. Consequently, it may be that taking a person who is in a state of intoxication to a position of greater safety would constitute justification. But it is clearly not privileged to arrest such a person for the sole purpose of running him out of town, or, as further proof at the trial here established, once having arrested such a person, to follow a practice of running him out of town to avoid guardhouse chores for the police whenever there were no other prisoners in the local jail. Such acts cannot be sanctioned with the mantle of the privilege of justification. A person who has had too much to drink is not a chattel to be transported from one locus to another at the whim or convenience of police officers.

The Restatement of Torts 2d (§ 10, Comment d) states it well: "Where the privilege is based upon the value attached to the interest to be protected or advanced by its exercise, the privilege protects the actor from liability only if the acts are done for the purpose of protecting or advancing the interest in question. Such privileges are often called conditional, because the act is privileged only on condition that it is done for the purpose of protecting or advancing the particular interest. They are sometimes called 'defeasible’, to indicate the fact that the privilege is destroyed if the act is done for any purpose other than the protection or advancement of the interest in question.” It follows that, if the conduct of the officers indeed is found to have been motivated by the desire to run the plaintiff out of town, the action for false imprisonment would not have been rebutted by the defense of legal justification. For, under plaintiffs theory, the false imprisonment count does not rest on the reasonableness of the police officers’ action, but on whether the unwilling confinement of the plaintiff was the result of an arrest for a nonjustified purpose.

THE CAUSE OF ACTION FOR NEGLIGENCE

The Appellate Division upheld the dismissal of the negligence cause on the ground that it was not reasonably foreseeable that a person who is under the influence of alcohol will walk approximately 350 feet in the dead of night and climb over a guardrail onto the New York Thruway. Before treating with that issue, we prefer to give our attention to the more fundamental question of the basic duty owed by the city to the plaintiff in this situation, a question somewhat obscured by the jargon of negligence terminology (Green, The Duty Problem in Negligence Cases, 28 Col L Rev 1014, 29 Col L Rev 255).

In that connection, we do not believe it aids our analysis of the negligence count to speculate on the duty of a police officer to arrest or not to arrest intoxicated persons. Instead, we confront directly the duty of police officers to persons under the influence of alcohol who are already in their custody, as was the case here once Parvi was compelled to enter the police car. The case law is clear that, even when no original duty is owed to the plaintiff to undertake affirmative action, once it is voluntarily undertaken, it must be performed with due care (Marks v Nambil Realty Co., 245 NY 256, 258; Glanzer v Shepard, 233 NY 236, 239; Zelenko v Gimbel Bros., 158 Misc 904, affd 247 App Div 867). As Restatement of Torts 2d (§ 324) puts it, "One who, being under no duty to do so, takes charge of another who is helpless adequately to aid or protect himself is subject to liability to the other for any bodily harm caused to him by (a) the failure of the actor to exercise reasonable care to secure the safety of the other while within the actor’s charge or (b) the actor’s discontinuing his aid or protection, if by so doing, he leaves the other in a worse position than when the actor took charge of him”.

Comment g to that section makes it evident that this duty cannot be fulfilled by placing the helpless person in a position of peril equal to that from which he was rescued. So it tells us that "if the actor has succeeded in removing the other from a position of danger to one of safety, he cannot change his position for the worse by unreasonably putting him back into the same peril, or into a new one.”

We return now to the question of whether it was reasonably foreseeable that Parvi, who appeared sufficiently intoxicated for the police to take action, when set down in the dead of night in a lonely rural setting within 350 feet of a superhighway, whose traffic noises were sure to make its presence known, might wander onto the road. To state the question is to answer it. To be sure, much has to depend on what the jury finds to have been the state of his sobriety and the nature of the surrounding physical and other circumstances. But traditionally these are the kind of matters suitable for jury determination rather than for the direction of a verdict (Prosser, Torts [4th ed], § 45, p 290; cf. Sheehan v City of New York, 40 NY2d 496, 502).

Finally, a word of clarification may be in order as to the legal role of plaintiff's voluntary intoxication. To accept the defendant’s argument, that the intoxication was itself the proximate cause of Parvi’s injury as a matter of law, would be to negate the very duty imposed on the police officers when they took Parvi and Dugan into custody. It would be to march up the hill only to march down again. The clear duty imposed on the officers interdicts such a result if, as the jury may find, their conduct was unreasonable (Fagan v Atlantic Coast Line R. R. Co., 220 NY 301, 307; Black v New York, New Haven & Hartford R. R. Co., 193 Mass 448; see Restatement, Torts 2d, § 324, Illustration 3). For it is the very fact of plaintiff’s drunkeness which precipitated the duty once the officers made the decision to act.

Accordingly, the order of the Appellate Division should be reversed, both causes of action reinstated and a new trial ordered, with leave to the defendant, if so advised, to move at Trial Term for leave to amend its answer to affirmatively plead a defense of justification to the cause of action for false imprisonment.

Chief Judge Breitel (dissenting).

I dissent. On no view of the facts should plaintiff, brought to causing his own serious injury by his voluntary intoxication, be allowed to recover from the City of Kingston for damages suffered when he wandered onto the New York State Thruway and was struck by an automobile. His attack is the familiar one on the good Samaritan, in the persons of two police officers, for not having, in retrospect, done enough.

The order of the Appellate Division should be affirmed, and the action stand dismissed.

On the night in question, the Kingston city police, responding to a complaint, found plaintiff Parvi and his companions in the midst of an uproarious argument behind a commercial establishment located on Broadway, in Kingston. Close by were railroad tracks, still in use by locomotives and freight trains. Plaintiff and his companion Dugan, both intoxicated, were asked if they had any place to go, and they said not. They were then taken to the police car, and informed that they would not be placed in jail on this holiday weekend, but, in accordance with their wishes, would instead be transported to a point out of the area where they could "sleep it off” without getting into further trouble. Dugan and Parvi repeatedly expressed their appreciation and gratitude at the option given them.

As the drive out of town proceeded, one of the men suggested a place where they might be left. The police officers, however, solicitous of the safety of their charges, declined this request, noting that the area suggested provided no shelter and, significantly, that the Thruway was "right there”. As an alternative, the officers, with the consent of plaintiff and Dugan, dropped the men off at "Coleman Hill”, the site of a former golf course, a spot often used by campers and equipped with several "lean-to” shelters. From the relative safety of this sheltered area, the two men, some time later, managed to wander onto the Thruway, over 350 feet away, where Dugan was killed and Parvi injured by passing automobiles.

On these facts, Parvi contends both that he was falsely imprisoned and that the city, through its police officers, was negligent. Neither claim withstands analysis, and both should fall.

In Broughton v State of New York (37 NY2d 451, 456, cert den 423 US 929), this court enumerated the elements necessary to sustain a false imprisonment claim: (1) intention to confine, (2) consciousness of confinement, (3) lack of consent to confinement, and (4) lack of privilege. But before those factors may even be reached, there must be evidence of a confinement. In this case, there was none, but, instead, merely an exclusion from one particular area and activity (see Restatement, Torts 2d, § 36, esp Comment b; Prosser, Torts [4th ed], p 42).

So long as Parvi did not remain out in public, intoxicated, creating a public nuisance, and endangering his own life, the officers had no wish to interfere with Parvi’s freedom of movement. Since Parvi could suggest no suitable place where the officers might take him, the officers chose another site. Apparently, Parvi and Dugan were pleased with the choice. And it should not matter that Parvi testified, although he could recall nothing else, that he was ordered into a police car "against [his] will”. (On cross-examination, he said he recalled nothing that day.) Parvi’s "will” was to stay where he was, intoxicated, in public. In order to deprive him of that one choice, which the officers could do without subjecting themselves to liability for false imprisonment, the officers had to transport Parvi some place else. He was given a choice as to destination. He declined it, except for his later suggestion of an unsafe place, and the officers made the choice for him. There was no confinement, and hence no false imprisonment.

Moreover, plaintiff has failed even to make out a prima facie case that he was conscious of his purported confinement, and that he failed to consent to it. His memory of the entire incident had disappeared; at trial, Parvi admitted that he no longer had any independent recollection of what happened on the day of his accident, and that as to the circumstances surrounding his entrance into the police car, he only knew what had been suggested to him by subsequent conversations. In light of this testimony, Parvi’s conclusory statement that he was ordered into the car against his will is insufficient, as a matter of law, to establish a prima facie case.

Plaintiff’s negligence claim is equally without merit. The police officers had no duty to leave Parvi absolutely free from danger in any form. Instead, they owed plaintiff only a duty to exercise ordinary care (Dunham v Village of Canisteo, 303 NY 498, 502). That duty was discharged by leaving plaintiff at a camping ground equipped with "lean-to” shelters and removed from the holiday bustle of the city, where Parvi had been drinking for the past two or three days. Since it was not foreseeable that Parvi, rather than "sleeping off” his intoxication, would wander away, climb over a guardrail, and be struck by an automobile on the New York State Thruway, there was no breach of duty, no negligence, and hence, no liability (see Cartee v Saks Fifth Ave., 211 App Div 606, 609-610, affd 303 NY 832). If, perchance, he was in search of more drinks, there was no chance of giving him absolute safety except by locking him up. It should not be the rule, common to an era long well past, that every drunkard must be locked up on being observed as intoxicated in public.

In removing Parvi and Dugan from the center of town, the police officers were performing a recognized public function. In his intoxicated state, Parvi, with his companions, was creating a public nuisance. It had been a long-standing practice in Kingston to transport publicly intoxicated people out of the center of town. The practice was followed in this case, and it is not, in a smaller city (population 25,544), an inherently unreasonable way of dealing with public intoxication. It avoids the humiliation and degradation to the offender, of maintaining him in jail. It is a commonplace that it is no longer acceptable, albeit it still continues, to treat the intoxicated and alcoholic in this fashion, as one does criminals.

Moreover, transplanting plaintiff from the center of town to an isolated area on the outskirts was protective of plaintiff himself. While a man in an intoxicated state can always be a hazard to himself, he is much more so when located in the center of town, in the midst of city streets, railroad tracks, molesters, muggers, street vehicles, and without shelter, than he would be in an isolated area. But one may not deprive him of reasonable access, after he recovers his sobriety, to food and other necessities. Had the police placed the two men out of reasonable access to any road, the isolation would have been inhumane. And any road would under some circumstances be dangerous. At least, the Thruway was bordered by a guardrail, and the record does not indicate the distance to the other accessible roads, including the road by which they reached Coleman Hill.

Restatement, Torts 2d, defines an act as negligent when it involves a risk of harm "of such magnitude as to outweigh what the law regards as the utility of the act or of the particular manner in which it is done” (§ 291). Here, the risk was slight; the police officers obviously considered safety in choosing the camping site to deposit the two men, and reasonably regarded the site as safe. More significant, by removing Parvi from town, they removed him from a place of greater danger, and halted a public nuisance as well. The police conduct, therefore, was not unreasonable under the Restatement test. (See, also, Restatement, Torts 2d, §§ 292, 293.) The same analysis applies under section 324 of Restatement, Torts 2d, dealing with the duty of one who takes charge of helpless persons, since the officers materially improved plaintiffs position by removing him from town.

Since, therefore, there was no breach of duty to plaintiff, as a matter of law, the negligence count, too, was properly dismissed.

There is hubris in the bringing of an action of this kind. Parvi is one of a pair of drinkers, derelicts perhaps, engaged in making a public nuisance of themselves in the center of a small Hudson River Valley city on a holiday weekend. The police of that city, a tiny force, are not sisters of charity or baby-sitters.

Basically, the legal issues in this case are not difficult. And the justice issues are even less so. A drunken man, a pitiable character, is found with his companions in the middle of town. Sympathetic police officers offer to take the men any where they choose, but the poor fellows have no place to go. So, rather than locking them up for a holiday weekend, the officers deposit the men in a suburban setting, where some shelter is available. The officers are thanked for their kindness. But, in the end, the efforts of the officers are to no avail, as the drunken men wander away from safety and into danger. A tragedy, certainly. A miscalculation, perhaps. But even with the aid of hindsight, the facts in this case are not the stuff on which tort liability may be premised.

Accordingly, I dissent, and vote to affirm the order of the Appellate Division.

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

Order reversed, with costs to abide the event, both causes of action reinstated and a new trial granted, with leave to respondent to move at Trial Term to amend its answer.


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

text:
    Copart Industries, Inc., Appellant, v Consolidated Edison Company of New York, Inc., Respondent.
    Argued February 16, 1977;
    decided April 7, 1977

      Joseph Calderon and Stanley H. Schneider, New York City, for appellant.

      Joseph J. Klem, New York City, for respondent.
   Cooke, J.

"There is perhaps no more impenetrable jungle in the entire law than that which surrounds the word 'nuisance’. It has meant all things to all men” (Prosser, Torts [4th ed], p 571). From a point someplace within this oft-noted thicket envisioned by Professor Prosser, this appeal emerges.

Plaintiff leased a portion of the former Brooklyn Navy Yard for a period of five years commencing September 1, 1970. On the demised premises during the ensuing eight or nine months it conducted a storage and new car preparation business, the latter entailing over 50 steps ranging from services such as checking brakes to vehicle cleaning, catering to automobile dealers in the metropolitan area of New York City. Adjacent to the navy yard was defendant’s Hudson Avenue plant, engaged in the production of steam and electricity since about 1926. This generating system had five smokestacks and during the time in question its burners were fired with oil having a sulphur content of 1% or less. Prior to 1968, coal had been the fuel employed and the main boiler was equipped with an electrostatic precipitator to remove or control the discharged fly ash. Upon conversion to oil, the precipitator had been deactivated.

Based on allegations that noxious emissions from defendant’s nearby stacks caused damage to the exterior of autos stored for its customers such as to require many to be repainted, that reports were received in early 1971 from patrons of paint discoloration and pitting, and that dealers served by plaintiff terminated their business by early May, plaintiff contends that because of said emissions it was caused to cease doing business on May 28, 1971. This action was instituted seeking $1,300,000 for loss of investment and loss of profit, under three causes of action respectively asserting "a deliberate and willful violation of the rights of plaintiff, constituting a nuisance”, a "wrongful and unlawful trespass” and violations of "New York City, New York State and federal laws, regulations and guidelines with respect to air pollution.” A fourth cause demanded exemplary and punitive damages of $1,000,000 because of defendant’s "wrongful and illegal acts.”

The case came on for jury trial in 1974. As a result of rulings made at junctures prior to submission for verdict, the third and fourth causes of action were dismissed and the second was merged with the first. After pointing out that plaintiff "framed his case on a branch of the law of wrongdoing called nuisance”, the trial court charged nuisance based on negligence and nuisance grounded on an intentional invasion of plaintiff’s rights. Negligence was defined and it was pointed out that, although contributory negligence may be a defense where the basis of the nuisance is merely negligent conduct, it would not be where the wrongdoing is founded on the intentional, deliberate misconduct of defendant. Contending that "nuisance is entirely separate and apart from negligence” and that "defendant’s intent or negligence is not * * * an essential element of the cause of action of nuisance”, plaintiff excepted to the portions of the charge relating to said subjects.

The jury found in defendant’s. favor and judgment was entered dismissing the complaint. The Appellate Division, by a divided court, affirmed, (52 AD2d 791) the majority stating that (p 792) "nuisance is a concept susceptible of more than one meaning”, that "[w]hile an absolute nuisance need not contain within its definition a flavoring of negligence, a qualified nuisance may”, that "the testimony, especially that of the experts, as developed at trial, showed an inextricable intertwining of negligence with the nuisance claimed, though the complaint did not so frame the issue”, that "the proof portrayed the alleged wrong as 'a nuisance, though dependent upon negligence’ ”, and that, therefore under the circumstances, the instructions to the jury on the issue of negligence were correct. The dissenters, on the other hand, urged that (p 793) "[p]utting aside the possibility that there could be liability without fault, and in the absence of proof of negligence by the defendant * * * a cause of action in nuisance 'does not involve the element of negligence as one of its essential factors’ ”, that the "charge which mingled elements of nuisance and negligence could have been confusing to the jury” and that the "possibility of confusion was compounded by an instruction that the plaintiff, to succeed, was required to prove that the injury to its property was intentionally inflicted.” On appeal to this court, plaintiff maintains that the trial court erred in charging (1) that plaintiff was required to prove an intent of the defendant to cause damages, and (2) that plaintiff had a burden of proof as to defendant’s negligence and plaintiff’s freedom from contributory negligence.

Much of the uncertainty and confusion surrounding the use of the term nuisance, which in itself means no more than harm, injury, inconvenience, or annoyance (see Webster’s Third New International Dictionary, p 571; American Heritage Dictionary, p 900), arises from a series of historical accidents covering the invasion of different kinds of interests and referring to various kinds of conduct on the part of defendants (Prosser, Torts [4th ed], pp 571-572). The word surfaced as early as the twelfth century in the assize of nuisance, which provided redress where the injury was not a disseisin but rather an indirect damage to the land or an interference with its use and enjoyment. Three centuries later the remedy was replaced by the common-law action on the case for nuisance, invoked only for damages upon the invasion of interests in the use and enjoyment of land, as well as of easements and profits. If abatement by judicial process was desired, resort to equity was required. Along with the civil remedy protecting rights in land, there developed a separate principle that an infringement of the right of the crown, or of the general public, was a crime and, in time, this class of offenses was so enlarged as to include any "act not warranted by law, or omission to discharge a legal duty, which inconveniences the public in the exercise of rights common to all Her Majesty’s subjects” (Stephen, General View of Criminal Law of England [1890], p 105). At first, interference with the rights of the public was confined to the criminal realm but in time an individual who suffered special damages from a public nuisance was accorded a right of action. (See Restatement, Torts, notes preceding § 822, pp 217-218; Prosser, Torts [4th ed], pp 572-573.)

A private nuisance threatens one person or a relatively few (McFarlane v City of Niagara Falls, 247 NY 340, 344), an essential feature being an interference with the use or enjoyment of land (Blessington v McCrory Stores Corp., 198 Misc 291, 299, affd 279 App Div 806, affd 305 NY 140). It is actionable by the individual person or persons whose rights have been disturbed (Restatement, Torts, notes preceding § 822, p 217). A public, or as sometimes termed a common, nuisance is an offense against the State and is subject to abatement or prosecution on application of the proper governmental agency (Restatement, Torts, notes preceding § 822, p 217; see Penal Law, § 240.45). It consists of conduct or omissions which offend, interfere with or cause damage to the public in the exercise of rights common to all (New York Trap Rock Corp. v Town of Clarkston, 299 NY 77, 80), in a manner such as to offend public morals, interfere with use by the public of a public place or endanger or injure the property, health, safety or comfort of a considerable number of persons (Melker v City of New York, 190 NY 481, 488; Restatement, Torts, notes preceding § 822, p 217).

As observed by Professor Prosser, public and private nuisances "have almost nothing in common, except that each causes inconvenience to someone, and it would have been fortunate if they had been called from the beginning by different names” (Prosser, Torts [4th ed], p 573). Not only does confusion arise from sameness in denomination and from the lack of it in applicability, but also from the fact that, although an individual cannot institute an action for public nuisance as such, he may maintain an action when he suffers special damage from a public nuisance (Restatement, Torts, notes preceding § 822, p 217; Wakeman v Wilbur, 147 NY 657, 663-664).

This developmental tracing indicates the erroneous concept under which appellant labors. It also points out that nuisance, as a general term, describes the consequences of conduct, the inconvenience to others, rather than the type of conduct involved (2 NY PJI 653). It is a field of tort liability rather than a single type of tortious conduct (Prosser, Torts [4th ed], p 573).

Despite early private nuisance cases, which apparently assumed that the defendant was strictly liable, today it is recognized that one is subject to liability for a private nuisance if his conduct is a legal cause of the invasion of the interest in the private use and enjoyment of land and such invasion is (1) intentional and unreasonable, (2) negligent or reckless, or (3) actionable under the rules governing liability for abnormally dangerous conditions or activities (Restatement, Torts 2d [Tent Draft No. 16], § 822; Prosser, Torts [4th ed], p 574; 2 NY PJI 653-654; see Spano v Perini Corp., 25 NY2d 11, 15; Kingsland v Erie Co. Agric. Soc., 298 NY 409, 426-427; Wright v Masonite Corp., 237 F Supp 129, 138, affd 368 F2d 661, cert den 386 US 934).

In urging that the charge in respect to negligence constituted error, plaintiff’s brief opens its discussion with the assertion that "[t]he complaint contained no allegations of negligence and its theory was that of nuisance.” This statement is significant in that not only does it miss the fundamental difference between types of conduct which may result in nuisance and the invasion of interests in land, which is the nuisance, but it also overlooks the firmly established principle that negligence is merely one type of conduct which may give rise to a nuisance. A nuisance, either public or private, based on negligence and whether characterized as either negligence or nuisance, is but a single wrong (Morello v Brookfield Constr. Co., 4 NY2d 83, 90), and "whenever a nuisance has its origin in negligence”, negligence must be proven and a plaintiff "may not avert the consequences of his [or her] own contributory negligence by affixing to the negligence of the wrongdoer the label of a nuisance” (McFarlane v City of Niagara Falls, 247 NY 340, 344-345, supra; Khoury v County of Saratoga, 267 NY 384, 389; Lyman v Village of Potsdam, 228 NY 398, 401-402, 405; Herman v City of Buffalo, 214 NY 316, 320-321; 2 Harper & James, Torts, pp 1223-1224; 2 Shearman & Redfield, Negligence [rev ed], p 919; see Nuisance-Damages-Defenses, Ann., 73 ALR2d 1378, 1387; but see CPLR 1411-1413). Although during trial an issue as to causation developed, whether the deleterious substances reaching the customers’ vehicles in plaintiff’s custody had their origin at defendant’s Hudson Avenue property or elsewhere, plaintiff introduced the testimony of different witnesses in support of its contention that defendant operated its plant in a negligent manner. While plaintiff offered expert proof to the effect that it was the general custom or usage in the power plant industry, during the period in question, to use collectors or precipitators, or both, on oil-fired boilers and also to use magnesium as a fuel oil additive to reduce the formation of acid bearing particulates, defendant submitted testimony from similar sources that mechanical and electrostatic precipitators are not commonly utilized on oil-fired burners and that defendant actually was using manganese as an additive.

Besides liability for nuisance arising out of negligence and apart from consideration of a nuisance resulting from abnormally dangerous or ultrahazardous conduct or conditions, the latter of which obviously is not applicable here (see Restatement, Torts 2d, § 822 [Tent Draft No. 16]; Restatement, Torts, § 822; Spano v Perini Corp., 25 NY2d 11, supra; 1 Harper & James, Torts, p 68; Prosser, Torts [4th ed], p 575), one may be liable for a private nuisance where the wrongful invasion of the use and enjoyment of another’s land is intentional and unreasonable. It is distinguished from trespass which involves the invasion of a person’s interest in the exclusive possession of land (Restatement, Torts, notes preceding § 822, pp 224-225; Prosser, Torts [4th ed], pp 594-596). The elements of such a private nuisance, as charged in effect by the Trial Justice, are: (1) an interference substantial in nature, (2) intentional in origin, (3) unreasonable in character, (4) with a person’s property right to use and enjoy land, (5) caused by another’s conduct in acting or failure to act (Restatement, Torts, § 822; Nussbaum v Lacopo, 27 NY2d 311, 315; McCarty v Natural Carbonic Gas Co., 189 NY 40, 49-50; Cogswell v New York, New Haven & Hartford R. R. Co., 103 NY 10, 13-15; Campbell v Seaman, 63 NY 568, 576-577; Prosser, Torts [4th ed], p 593; 1 Harper & James, Torts, pp 67-68; 2 NY PJI, Comment, p 660). Thus, plaintiff’s exception that "defendant’s intent * * * is not * * * an essential element of the cause of action of nuisance” and its criticism of the charge, which was to the effect that as to the private nuisance plaintiff was required to prove that defendant’s conduct was intentional, are not well taken. "An invasion of another’s interest in the use and enjoyment of land is intentional when the actor (a) acts for the purpose of causing it; or (b) knows that it is resulting or is substantially certain to result from his conduct” (Restatement, Torts, § 825; McKenna v Allied Chem. & Dye Corp., 8 AD2d 463, 467; see Richardson, Evidence [10 ed], § 90).

Negligence and nuisance were explained to the jury at considerable length and its attention was explicitly directed to the two categories of nuisance, that based on negligence and that dependent upon intentional conduct. The causes accrued, if at all, prior to the applicable date of the new CPLR article 14-A (CPLR 1411-1413), and the trial court properly charged that contributory negligence may be a defense where the nuisance is based on negligent conduct (McFarlane v City of Niagara Falls, 247 NY 340, 344-345, supra). As to nuisance involving a willful or intentional invasion of plaintiffs rights, the jury was instructed that contributory negligence was not a defense and, in this respect, plaintiff was not prejudiced and has no right to complain (see Prosser, Torts [4th ed], § 91, pp 608-612; 2 Harper & James, Torts, § 22.8, pp 1219-1227; Nuisance-Damages-Defenses, Ann., 73 ALR2d 1378, 1390-1395; 2 NY PJI 664).

Boomer v Atlantic Cement Co. (26 NY2d 219, revg 30 AD2d 480 and 55 Misc 2d 1023), relied on by plaintiff, does not dictate a contrary result. There, Supreme Court found that defendant maintained a nuisance, same was affirmed by the Appellate Division, and the Court of Appeals concerned itself with the relief to be granted. Although Trial Term did specifically mention the type of nuisance it found, it is obvious that it was not a nuisance in which the substance of the wrong was negligence since it was held that "the evidence in this case establishes that Atlantic took every available and possible precaution to protect the plaintiffs from dust” (55 Misc 2d, at p 1024). Rather, it would appear that the nuisance found was based on an intentional and unreasonable invasion, as it was stated that "[t]he discharge of large quantities of dust upon each of the properties and excessive vibration from blasting deprived each party of the reasonable use of his property and thereby prevented his enjoyment of life and liberty therein” (55 Misc 2d, at pp 1024-1025). Contrary to plaintif s assertion, Boomer does not negate the necessity of proving negligence in some nuisance actions involving harmful emissions, since negligence is one of the types of conduct on which a nuisance may depend.

Although there are some Judges in the majority who are of the opinion that the charge did not furnish a model of discussion on some subjects, all of that group agree that reversal on the basis of the charge would not be warranted.

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

Fuchsberg, J. (dissenting).

I believe, as did Justices Markewich and Kupferman, who dissented at the Appellate Division, that the charge in this case, by repeatedly presenting an admixture of nuisance and negligence in a manner and to an extent that could have misled the jury, should bring a reversal. All the more is that so because of the Trial Judge’s insistent refrain that the injury to the plaintiffs property was required to be intentionally inflicted. Accordingly, I must dissent.

In doing so, I should note that, while in the main I am in agreement with the majority of our court in its discussion of the substantive law of nuisance, I believe the readiness with which it uses the term "negligence” in the context of this action for nuisance is counterproductive to the eradication of the confusion which has so long plagued that subject. Words such as "intent”, "negligence” and "absolute liability” refer not to the result of the conduct of a defendant who intrudes unreasonably on the use and enjoyment of another’s property, but rather to the method of bringing it about. Too often, as here, it serves to divert from focusing on the basic legal issue.

Nuisance traditionally requires that, after a balancing of the risk-utility considerations, the gravity of harm to a plaintiff be found to outweigh the social usefulness of a defendant’s activity (Prosser, Torts [4th ed], p 581). For no matter whether an act is intentional or unintentional, there should be no liability unless the social balance of the activity leads to the conclusion that it is unreasonable (cf. Meyer v Gehl Co., 36 NY2d 760, 764 [dissenting opn]).

Interestingly, sections 826 and 829A of the Restatement of Torts 2d (Tent Draft Nos. 17, 18) have now given recognition to developments in the law of torts by moving past the traditional rule to favor recovery for nuisance even when a defendant’s conduct is not unreasonable. To be exact, section 826 (Tent Draft No. 18, pp 3-4) reads: "An intentional invasion of another’s interest in the use and enjoyment of land is unreasonable under the rule stated in section 822, if (a) the gravity of the harm outweighs the utility of the actor’s conduct, or (b) the harm caused by the conduct is substantial and the financial burden of compensating for this and other harms does not render infeasible the continuation of the conduct”. (See, also, Wade, Environmental Protection, Common Law of Nuisance, 8 Forum 165, 171.)

Indeed, a fair reading of Boomer v Atlantic Cement Co. (26 NY2d 219) would indicate that the position articulated by the Restatement’s Tentative Draft is consistent with the decision of our court in that case. The plaintiffs in Boomer were landowners who were substantially damaged by air pollution caused by the defendant’s cement plant. However, since the court found that the adverse economic effects of a permanent injunction which would close the plant would far outweigh the loss plaintiffs would suffer if the nuisance continued, it limited the relief it granted to an award of monetary damages as compensation to the defendants for the "servitude” which had been imposed on their lands (26 NY2d, at p 228). Taken into account was the fact that an injunction would have put 300 employees out of work and caused forfeiture of a $45,000,000 investment, while plaintiffs’ permanent damages were only $185,000 (26 NY2d, at p 225) and that the burden of compensating for the harm did "not render infeasible the continuation of the conduct” (Restatement, Torts 2d, § 826 [Tent Draft No. 18], pp 3-4; see, also, Ellickson, Alternatives to Zoning: Covenants, Nuisance Rules and Fines as Land Use Controls, 40 U Chi L Rev 681, 720).

On the basis of these principles, it follows that, on reversal the plaintiff in this case should be permitted to sustain its action for damages on proof that the harm is substantial and that the financial burden of compensating for the harm does not render "infeasible” the continuation of the defendant’s business activity.

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

Order affirmed.


author: Chief Judge Breitel.

text:
    In the Matter of Morris Rokowsky, Respondent, v Finance Administrator of the City of New York et al., Appellants.
    Argued February 9, 1977;
    decided April 7, 1977

      W. Bernard Richland, Corporation Counsel (Edith Spivack, Edward J. McLaughlin, James J. McGowan and Rosario J. Renda, New York City, for appellants.

      Donald N. David, Herbert S. Podell and Melvyn M. Rothman, New York City, for respondent.

      Louis J. Lefkowitz, Attorney-General (Ruth Kessler Toch and Joseph P. McCale of counsel), Albany, amicus curiae.

   Chief Judge Breitel.

Petitioner Rokowsky, owner of a parcel of real property in the Borough of The Bronx in the City of New York, seeks reduction of his tax assessment. He alleges both overvaluation and inequality of assessment. Respondents, the Finance Administrator and the Tax Commission of the City of New York, appeal from an Appellate Division order affirming Supreme Court’s denial of their motion to dismiss the inequality cause of action.

There are two issues. The first and more significant is whether a claim of inequality of assessment can be established by comparison solely on the basis of the State equalization rate for a particular borough within the City of New York, or whether the city rate must be used. The second, subsidiary, issue need be reached only if the city rate, rather than the borough rate, must be used. That issue is whether a petition which alleges inequality with respect to all real property in the City of New York may be sustained even though in the original application for correction, made to the City Tax Commission, inequality was alleged only with respect to other property in the same borough and section of the city as the subject property.

The order of the Appellate Division should be affirmed. Since the city, not the borough, is the taxing authority, and since taxes are collected at a uniform rate throughout the city, only the city equalization rate, not the borough rate, may be used to prove a claim of inequality. In this case, the petition explicitly alleges unequal assessment in comparison with all other property in the city. Since the earlier application for correction put the Tax Commission on notice of petitioner’s complaint, the petition should be sustained. No formalistic incantation is necessary to notify the commission of the basis for an inequality claim.

Initially, petitioner applied to the Tax Commission of the City of New York for correction of the assessed valuation of his real estate for the fiscal year 1970-1971. In this application, it was alleged that the assessed valuation was set at a higher rate than the assessed valuation of all other real property in the Borough of The Bronx, and was out of proportion to the assessed valuation of property of similar character in the immediate vicinity. No reference, however, was made to inequality in comparison with real property in the city as a whole.

After the application was denied, a petition was filed in Supreme Court, Bronx County, seeking the same tax reduction. In the petition, inequality was asserted with respect to property in the city as a whole, and, especially, property in the Borough of The Bronx.

The difficulties in this case arise primarily because of the difference between the equalization rate for the city as a whole and the rate for each particular borough. The State Board of Equalization and Assessment sets equalization rates for various localities throughout the State. These rates indicate the percentage of full value at which property within the locality is assessed. Within the City of New York, equalization rates are set for the city as a whole and for each of the city’s five component boroughs. Crucial to this case, however, is that all property in the city is taxed at the same percentage of assessed valuation, regardless of any difference in equalization rates between boroughs. Only special assessment rates for local improvements vary from borough to borough, and these rates are very small in comparison with the city-wide tax rates.

The applicable statute is section 166-1.0 of the Administrative Code of the City of New York, which permits judicial review of tax assessments on the ground "[t]hat the assessment is erroneous by reason of inequality” (subd b, par 3). To the same effect is section 706 of the Real Property Tax Law, which deals with review of tax assessments in the State generally. These provisions must be construed in light of their purpose, a purpose made evident in the statutory language and long recognized by this court: No taxpayer may be saddled with a discriminatory assessment which imposes on him more than his fair share of the total tax burden (Matter of Wolf v Assessors of Town of Hanover, 308 NY 416, 421; People ex rel. Warren v Carter, 109 NY 576, 581-582).

Inequality of assessment within any one borough does not establish that any individual taxpayer is paying more than his share of the city’s real estate taxes. The tax rate is uniform throughout the city. Thus, if all property in a single borough is underassessed by comparison with all property in the city as a whole, it is of reduced significance that an individual parcel in that borough is assessed at a higher percentage of full value than other property in the borough. The owner of the parcel may nevertheless be paying less than his fair share of the city’s taxes, and may not be heard to complain. It is the city that sets the tax rate, it is the city that collects the taxes, and it is the city that must serve as the yardstick for any claim of inequality.

Perhaps, if the city’s equalization rate were not available, comparison with the equalization rate of an individual borough might provide significant support for a claim of inequality. Since the city equalization rate, however, is available, it should control, insofar as equalization rates may now be used to establish "true” value (see Real Property Tax Law, § 720, subd 3; Guth Realty v Gingold, 34 NY2d 440, 449).

This analysis is in harmony with the language of the statute. A claim of inequality may be premised on an assessment "made at a higher proportionate valuation than the assessment of * * * other real property on the assessment rolls of the city” (Administrative Code of City of New York, § 166-1.0, subd b, par 3). Petitioner interprets this language to mean that a comparison may be made with property on any borough assessment roll, of which there are five, one for each borough. A more reasonable interpretation, however, would permit comparison only with property on the assessment rolls in the aggregate. Use of "rolls” in the plural and explicit reference to "the city” are consistent with this reading. Moreover, and this is key, petitioner must establish that he "is or will be injured” by the unequal assessment (§ 166-1.0, subd b, par 3). Unless a property owner is paying more than his fair share of the city’s real estate taxes, no injury results. This is the substance to which the statutory language is addressed.

In this proceeding, petitioner’s initial failure, in his application before the Tax Commission, to allege that his assessment was unequal with respect to other property in the city as a whole, should not preclude him from alleging such inequality in his petition, and proving it at trial. An allegation of inequality, even if the wrong comparison area be used, should be enough to inform the Tax Commission of the basis for dissatisfaction with an assessment. Especially since the equalization rate for The Bronx was close to that for the city as a whole, the Tax Commission cannot contend successfully that it was misled by petitioner’s allegations. Moreover, once a contention of inequality is made, the Tax Commission should be charged with knowledge of the proper comparison area. Therefore, since the petition itself asserts inequality with respect to the city as well as the Borough of The Bronx, it states a cause of action, and hence should not be dismissed.

The problem in this case is significant only because of the deplorable disparity of equalization rates among the several boroughs. If the property owners of each borough had been receiving equal treatment from the taxing authorities at the time of this assessment, the borough equalization rates would be the same, and application of the borough rate would produce the same result as application of the city rate. The contrary approach, however, would further benefit property owners in boroughs that have already benefited from the inequities in the assessment process—at the expense of the taxpayers in the rest of the city.

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

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

Order affirmed, with costs. Question certified answered in the affirmative.

       The motion in fact was a cross motion to petitioner’s motion seeking a set date for trial.