text:
    Edward Brady, Appellant, v Dorothy Brady, Respondent.
    Argued January 7, 1985;
    decided February 14, 1985

      POINTS OF COUNSEL

      Dale B. Weiss for appellant.
    I. In light of changes in New York matrimonial law under equitable distribution which permits the court to protect a wife in a long-term marriage from unfair economic disadvantage, the Hessen case construes Domestic Relations Law § 170 (1) in a gender discriminatory manner with no rational basis, so as to render such construction violative of the equal protection clause of the 14th Amendment, and thus, unconstitutional. (Hessen v Hessen, 33 NY2d 406; Reed v Reed, 404 US 71; Califano v Webster, 430 US 313; Orr v Orr, 440 US 268; Childs v Childs, 69 AD2d 406; Goodell v Goodell, 77 AD2d 684; Beer v Beer, 87 AD2d 805; Valladares v Valladares, 80 AD2d 244.) II. Assuming arguendo, that Hessen is still authoritative, the Hessen double standard of fault relied upon by defendant wife should not be applied in this case inasmuch as defendant wife has been awarded maintenance, exclusive possession of the marital abode and counsel fees in accordance with Domestic Relations Law § 236 (b) and has thereby not been economically disadvantaged by the court’s finding her guilty of cruel and inhuman treatment toward plaintiff husband. (Trushkowsky v Trushkowsky, 83 AD2d 963; Moran v Moran, 81 AD2d 740; Ciardiello v Ciardiello, 65 AD2d 765,46 NY2d 1076; Hessen v Hessen, 33 NY2d 406.) III. The trial court’s findings that a single act of cruelty which made continued cohabitation of the parties unsafe or improper is within the mandate of Domestic Relations Law § 170 (1) and a proper exercise of discretion by the court, and the court below’s misreading of the trial court’s finding of cruelty should not preclude the reinstatement of a divorce to plaintiff husband. (McKay v McKay, 78 AD2d 676;
      Echevarria v Echevarria, 40 NY2d 262; Johnson v Johnson, 36 NY2d 667; Hessen v Hessen, 33 NY2d 406.)

      Herman Yellon for respondent.
    I. On the facts found by the trial court and affirmed by the court below, plaintiff failed, as a matter of law, to prove his case based upon cruel and inhuman treatment or for constructive abandonment. (Hessen v Hessen, 33 NY2d 406; Denny v Denny, 65 AD2d 658, 48 NY2d 915; Phillips v Phillips, 70 AD2d 30; Viczian v Viczian, 64 AD2d 593; McKay v McKay, 78 AD2d 676; Filippi v Filippi, 53 AD2d 658.) II. Plaintiff’s position with regard to constitutionality and gender discrimination of the Hessen rule is not well taken. (Reed v Reed, 404 US 71; Orr v Orr, 440 US 268; Califano v Webster, 430 US 313; Matter of Frances T., 96 AD2d 650; Matter of Carter v Carter, 58 AD2d 438.)
   OPINION OF THE COURT

Chief Judge Wachtler.

Plaintiff Edward Brady has brought this matrimonial action against his wife, defendant Dorothy Brady, seeking a divorce and sale of the marital residence. The complaint alleged, as grounds for obtaining a divorce, that Mrs. Brady committed acts constituting cruel and inhuman treatment and constructively abandoned plaintiff by refusing to engage in sexual relations with him (see, Domestic Relations Law § 170). The question presented is what conduct constitutes cruel and inhuman treatment in a “long-term” marriage so as to give rise to a cause of action for divorce. More specifically, we must determine whether the principles set forth in Hessen v Hessen (33 NY2d 406), with respect to the necessary showing of cruel and inh u-man treatment in a long-term marriage, are still to be followed.

The parties were married in 1956 and have four children, who were born between 1957 and 1966. From May 1977 to September 1979, Mr. Brady lived in the marital residence on an infrequent basis and since September or October 1979 he has not resided there at all. Mr. Brady commenced this action for a divorce in 1981. His verified complaint set forth two causes of action, one for constructive abandonment and the other for cruel and inhuman treatment. Among the allegations relating to the claim of cruel and inhuman treatment were that Mrs. Brady, during 1976, struck him with objects, including a lamp and a vase, threatened him with a knife, attempted to choke him and frequently berated him. Her answer denied all of these allegations and set forth counterclaims for maintenance and child support, but not for a judgment of divorce.

At trial, plaintiff, with minimal corroboration, testified to the allegations in the complaint. Mrs. Brady, supported in much of her testimony by one of the Brady children, again denied the charges of constructive abandonment and cruel and inhuman treatment, and stated that she did not seek a divorce. The trial court, although apparently rejecting most of plaintiff’s specific claims of cruel and inhuman treatment, granted him a divorce on that cause of action. The court termed the marriage a “dead” one, and concluded that based on the marital breakdown and the separation of the parties further cohabitation was improper. The court also awarded custody of the remaining infant child to Mrs. Brady, granted her exclusive use and occupancy of the marital residence until the emancipation of this child, at which time the residence would be sold, provided for the distribution of other marital property, and ordered plaintiff to make payments to her for maintenance and child support.

The Appellate Division unanimously modified the trial court judgment. The court found that plaintiff had not made out a cause of action for divorce based on cruel and inhuman treatment, and thus deleted the portions of the judgment granting plaintiff a divorce and ordering the sale of the marital residence upon the emancipation of the remaining infant child. We now affirm.

Prior to the 1966 amendments to the Domestic Relations Law, the sole ground for divorce in this State was adultery. The 1966 reforms added five additional grounds, one of which was, and remains, “The cruel and inhuman treatment of the plaintiff by the defendant such that the conduct of the defendant so endangers the physical or mental well being of the plaintiff as renders it unsafe or improper for the plaintiff to cohabit with the defendant” (Domestic Relations Law § 170 [1], added by L 1966, ch 254).

In Hessen v Hessen (33 NY2d 406, supra), we held that a plaintiff seeking a divorce under the cruel and inhuman treatment subdivision must show serious misconduct, and not mere incompatibility. Subsequent cases have established thát a plaintiff, relying on this subdivision, must generally show a course of conduct by the defendant spouse which is harmful to the physical or mental health of the plaintiff and makes cohabitation unsafe or improper (Forcucci v Forcucci, 96 AD2d 751; Kennedy v Kennedy, 91 AD2d 1200; Warguleski v Warguleski, 79 AD2d 1107). The subdivision requires a finding of fault and thus a showing of irreconcilable or irremediable differences is insufficient by itself (De Felice v De Felice, 92 AD2d 1044; Warguleski v Warguleski, supra; Filippi v Filippi, 53 AD2d 658).

In Hessen, we also noted that the determination of whether conduct, constituted cruel and inhuman treatment would depend, in part, on the length of the parties’ marriage, because what might be considered substantial misconduct in the context of a marriage of short duration, might only be “transient discord” in that of a long-term marriage (Hessen v Hessen, 33 NY2d 406, 411, supra). Thus, courts in this State have required a high degree of proof of cruel and inhuman treatment where there is a marriage of long duration and an isolated act of mistreatment will rarely suffice (see, Wilkins v Wilkins, 91 AD2d 771; Wald v Wald, 70 AD2d 936; Filippi v Filippi, 53 AD2d 658, supra).

At the time the Hessen case was decided, only a wife was able to collect alimony following a divorce. If, however, her “misconduct” entitled the husband to obtain a divorce on a ground such as cruel and inhuman treatment, she was precluded under Domestic Relations Law § 236 from receiving alimony or exclusive possession of the marital home (Hessen v Hessen, supra, pp 410-411; Barry v Barry, 93 AD2d 797). Thus, the effect of granting a husband a divorce on the ground of his wife’s cruel and inhuman treatment was a potential financial catastrophe to the wife. In Hessen, we noted that this negative effect could be particularly harmful where the defendant, as was the case therein, was a “dependent older woman” (Hessen v Hessen, supra, p 412), and this fact served as one of the bases for requiring a higher degree of proof of cruel and inhuman trea tment in a long-term marriage.

In 1980, the Equitable Distribution Law was enacted and Domestic Relations Law § 236 was amended to provide, in part, that either spouse could be required to pay alimony (“maintenance”), and to eliminate the rule that misconduct by a spouse precludes receiving an award of alimony or exclusive possession of the marital home. The change with respect to the person who could be required to pay alimony was constitutionally required in light of the Supreme Court’s 1979 decision in Orr v Orr (440 US 268), which held that the Alabama statutory scheme which imposed alimony obligations on husbands only violated the equal protection clause of the 14th Amendment to the United States Constitution. Plaintiff argues that the Hessen rule, as to long-term marriages, was designed to protect only women ard thus can no longer be followed in view of the Orr decision. He also argues that there is no longer any reason to require a higher showing of misconduct in a long-term marriage as the spouse against whom the divorce is granted can receive alimony payments and exclusive possession of the marital home, and thus there is no danger that granting a divorce will be financially ruinous to a “dependent older woman”.

If the evidentiary requirement set forth in Hessen with respect to marriages of long duration were applied only where the plaintiff was the husband, then there would likely be an equal protection violation. Hessen, however, has been (see, e.g., Filippi v Filippi, 53 AD2d 658, supra) and should be followed whether the plaintiff is the husband or the wife. Thus, plaintiff’s constitutional argument is without merit. Plaintiff’s contention that the rationale for the Hessen rule has been eliminated by the 1980 amendments to Domestic Relations Law § 236 is also unconvincing. That financial problems could have faced a middle aged woman against whom a cruelty divorce was granted was merely one of the bases for requiring a higher degree of proof of cruel and inhuman treatment in a long-term marriage. The fundamental reason for such a rule was, and remains, the commonsense notion that the conduct which a plaintiff alleges as the basis for a cause of action must be viewed in the context of the entire marriage, including its duration, in deciding whether particular actions can properly be labeled as cruel and inhuman.

Therefore, we reaffirm the holding in Hessen that whether a plaintiff has established a cause of action for a cruelty divorce will depend, in part, on the duration of the marriage in issue. The existence of a long-term marriage does not, of course, serve as an absolute bar to the granting of a divorce for cruel and inhuman treatment, and even in such a marriage “substantial misconduct” might consist of one violent episode such as a severe beating (cf. Echevarria v Echevarria, 40 NY2d 262; Tripi v Tripi, 94 AD2d 944).

It is not clear which, if any, of plaintiff’s allegations were credited by the trial court. The trial court did conclude that plaintiff had not made a sufficient showing of cruel and inhuman treatment under Hessen in view of the duration of the marriage (26 years), but concluded that “the [Hessen] rule must be considered as no longer retaining its authority”. The court went on to find that the Bradys’ marriage was a “dead” one, and, “in its discretion”, granted Mr. Brady a divorce on his cause of action for cruel and inhuman treatment. While the trial court does have broad discretion as to whether to grant a cruelty divorce (see, e.g., Forcucci v Forcucci, 96 AD2d 751, supra), such a divorce cannot be granted simply because the court concludes that there is a “dead marriage” (Warguleski v Warguleski, 79 AD2d 1107, supra; Viczian v Viczian, 64 AD2d 593).

The Appellate Division also found that plaintiff made an insufficient showing under Hessen and that most of his allegations were not proven. The Appellate Division properly applied the principles set forth in Hessen and, accordingly, the order of that court should be affirmed, with costs.

Judges Jasen, Meyer, Simons, Kaye and Alexander concur.

Order affirmed, with costs.

      . The only exception to this rule was where the plaintiff had waived his rights under that provision of the Domestic Relations Law and authorized the trial court to make such awards (Hessen v Hessen, 33 NY2d 406, 411; Barry v Barry, 93 AD2d 797).

      . Nor can the trial court grant a divorce based on a finding of a “dead marriage” as an act of discretion apart from the statutory ground of cruel and inhuman treatment, as the jurisdiction to grant a divorce is purely statutory (Pajak v Pajak, 56 NY2d 394, 396).


source: Caselaw Access Project

author: Chief Judge Wachtler.

license: Public Domain

text:
    The People of the State of New York, Respondent, v John Whitaker, Appellant.
    Argued January 3, 1985;
    decided February 14, 1985

      POINTS OF COUNSEL

      Jonathan M. Kratter and William E. Hellerstein for appellant.
    I. The use of appellant as a filler in a lineup shortly after his arrest on an unrelated case and without his consent violated his rights to be free from unreasonable seizures and to due process. (Brown v Texas, 443 US 47; United States v Brignoni-Ponce, 422 US 873; Matter of Pidgeon v Rubin, 80 AD2d 568; People v Pickett, 71 AD2d 575, 52 NY2d 892; Matter of Santucci v Andrews, 117 Misc 2d 616; Matter of District Attorney v Crawford, 110 Misc 2d 886; People v McClain, 88 Misc 2d 693; People v Mineo, 85 Misc 2d 919; People v Pittman, 83 AD2d 870; United States v Perry, 504 F2d 180.) II. The lineup was suggestive, in violation of appellant’s right to due process, because: (1) only appellant wore a black leather coat like the perpetrator, and the witnesses’ testimony made it clear that the coat played an important role in their identifications; (2) appellant and one other participant were shorter than the rest and the same height as the perpetrator; and (3) the facial features of the other lineup participants did not resemble those of appellant. (People v Adams, 53 NY2d 241; Foster v California, 394 US 440; United States v Wade, 388 US 218; Manson v Brathwaite, 432 US 98; Green v Loggins, 614 F2d 219; Jackson v Fogg, 589 F2d 108; United States v Ballard, 534 F Supp 749; People v Moore, 96 AD2d 1044; United States ex rel. Pierce v Cannon, 508 F2d 197.)

      Elizabeth Holtzman, District Attorney (Peter A. Weinstein, Barbara D. Underwood and Richard T. Faughnan of counsel), for respondent.
    I. The police did not violate the constitutional rights of defendant when they directed him to appear in a lineup after his arrest for an unrelated crime. (United States v Dionisio, 410 US 1; Matter of Abe A., 56 NY2d 288; Katz v United States, 389 US 347; United States v Mara, 410 US 19; Schmerber v California, 384 US 757; Davis v Mississippi, 394 US 721; In re Melvin, 550 F2d 674; United States v Doe, 457 F2d 895; United States v Perry, 504 F2d 180; People v Pittman, 83 AD2d 870.) II. The claim that the lineup was suggestive involves a mixed question of law and fact beyond this court’s power of review. Moreover, the evidence introduced at the suppression hearing fully supported the trial court’s affirmed finding that the lineup was not suggestive. (People v McRay, 51 NY2d 594; People v Harrison, 57 NY2d 470; People v Harris, 48 NY2d 208; United States ex rel. Pella v Reid, 527 F2d 380; United States v Shakur, 560 F Supp 353; Wright v Smith, 434 F Supp 339, 569 F2d 1188; Foster v California, 394 US 440; United States v Porter, 430 F Supp 208; United States ex rel. Pierce v Cannon, 508 F2d 197.)
   OPINION OF THE COURT

Chief Judge Wachtler.

The defendant, while lawfully in custody at a police station on a murder charge, was placed in a lineup relating to another murder, not because he was suspected of the crime but to fill up the lineup around another suspect. At the lineup the defendant was identified as the person who committed this second murder and was subsequently convicted of the crime. He now appeals from an order of the Appellate Division affirming his conviction. His primary contention is that placing him in the lineup “as a filler” after his arrest on an unrelated charge, without his consent, violated his right to be free from unreasonable searches and seizures.

On January 4, 1976 three men committed an armed robbery at a Brooklyn bar. During the holdup one of the men shot and killed Charles Hill, a co-owner of the bar. On January 24 the police arrested Lindsay Webb in connection with the crime. At the station house the police decided to hold a lineup consisting of Webb and five police officers. However only three officers fitting Webb’s description were available. At that point the police decided to use the defendant, John Whitaker, already in custody on an unrelated charge, as one of the “fillers” or “stand ins”. The police did not seek the defendant’s consent to participate in the lineup.

Two of the witnesses to the shooting separately viewed the lineup and identified the defendant, instead of Webb, as the mem who shot Hill. Several days later the defendant waived his rights and admitted killing Hill.

Prior to trial the defendant moved to suppress his statements and the eyewitness identifications. With respect to the identifications the defendant urged that the lineup was suggestive, that he had been denied his right to counsel and that he should not have been placed in the lineup without his consent. The trial court denied the motions and the defendant was convicted after a jury trial.

On defendant’s first appeal the Appellate Division set aside the conviction and ordered a new trial. The court held that his statements had been obtained in violation of his right to counsel under the State Constitution and should not have been admitted at trial. The court found, however, that the identification of the defendant at the lineup should not be suppressed because he was compelled to participate in it. Distinguishing one of its earlier cases (People v Vega, 51 AD2d 33) the court noted that the defendant was not a suspect at the time but “was being used merely to ‘flesh out’ the proceeding”, that he was placed in the lineup to make the procedure as fair as possible and that the lineup itself was not suggestive. The court also observed that the witnesses’ identification of the defendant in court had a sufficient independent origin (75 AD 2d 111, 125).

At the second trial the defendant was again convicted based on the eyewitness identifications. The Appellate Division affirmed his conviction.

On this appeal the defendant argues that the evidence of the lineup should be suppressed for a number of reasons. However, the only issue which is within the scope of our review is his contention that using him as a filler in a lineup without his consent constituted an illegal seizure.

A person does not lose all 4th Amendment rights once he has been lawfully incarcerated. There are limitations on what the police may reasonably seize from a person being held on criminal charges. They may not, for instance, pump his stomach (Rochin v California, 342 US 165) nor may they take a blood sample absent exigent circumstances (Schmerber v California, 384 US 757). On the other hand, no warrant is necessary to take fingerprints (Davis v Mississippi, 394 US 721, 727) or search a person lawfully in custody (United States v Robinson, 414 US 218).

It is also settled in other contexts that if the initial detention is lawful, no 4th Amendment violation occurs when a person is compelled to provide voice exemplars (United States v Dionisio, 410 US 1), handwriting samples (United States v Mara, 410 US 19) or participate in a lineup (cf. United States v Crews, 445 US 463). The individual can have no reasonable expectation of privacy in physical characteristics constantly exposed to the public (United States v Dionisio, supra, pp 11-15). In this case the defendant concedes that the initial detention was lawful but contends that the direction to appear in a lineup constituted an “additional intrusion” which cannot be justified by the initial detention since it does not relate to that crime.

Other jurisdictions considering the problem have generally found no violation of constitutional rights when a defendant held on one charge is placed in a lineup with respect to an unrelated charge (People v Hodge, 186 Col 189; Rigney v Hendrick, 355 F2d 710; cf. United States v Sechrist, 640 F2d 81 [fingerprints]; but also see, United States v Perry, 504 F2d 180 [practice questioned by certain members of the court]). The lower courts in this State have generally reached the same conclusion (see, e.g., People v Smith, 86 AD2d 251; People v Pittman, 83 AD2d 870; People v Pickett, 71 AD2d 575, affd 52 NY2d 892; People v Vega, supra). In those cases however, the police typically had probable cause or reason to suspect the defendant of the unrelated offense, although the legality of the initial arrest was often considered sufficient in itself to authorize the practice.

The defendant contends that a person lawfully held on cne crime may not be placed in a lineup relating to another char ge unless this “additional intrusion” is justified by additional proof establishing probable cause or reasonable suspicion that the defendant committed the separate crime for which the lineup is being held. If accepted, this argument would prohibit the common police practice of using detainees as fillers in station house lineups. In our view, however, the minimal “additional intrusion” on the defendant’s lawful confinement which resulted from placing him in a lineup did not constitute an unreasonable seizure under the circumstances of this case.

The defendant cannot complain of his presence in the station house where the lineup took place. There is no contention that he had been arrested on a pretext to place him in a lineup with respect to unrelated offenses or that he was being unreasonably detained there for that purpose. It is undisputed that he was lawfully in custody at that place and time.

What he objects to apparently is the fact that he was required to stand at a particular spot in the station house during the lineup. Although he seems to recognize that a person in custody may be moved from one location to another for administrative convenience, he claims that this is not permitted when it is “unrelated to the prosecution and incarceration of a detainee”. In our view the per se rule the defendant proposes overlooks the fact that reasonableness is the standard by which the legality of custodial conduct is to be judged. In making this determination the courts must balance the degree of intrusion on individual rights against the legitimate needs of law enforcement (Camara v Municipal Ct., 387 US 523, 536-537).

The lineup is an essential part of the criminal justice system (United States v Wade, 388 US 218). The local station house close to the scene of the crime'may afford the best opportunity for prompt and reliable identification while witnesses are available and memories fresh. However, as this case illustrates, it is sometimes difficult to find suitable “stand ins” among those at or near the station house if persons being detained there are excluded. The use of detainees could lead to abuses, but in this case there is no evidence of harassment and the police conduct appears reasonable. Moving a person already in custody a short distance to a lineup and briefly placing him in it involves at best a minimal, and in our view constitutionally inconsequential, additional restraint. It also provides a reasonable solution to a problem which too often in the past has led to the showup which is a less desirable and potentially less reliable means of identification.

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

Judges Jasen, Meyer, Simons, Kaye and Alexander concur.

Order affirmed.

       The defendant also contends that this conduct violates his due process rights by subjecting him to an increased risk of misidentification. This point, however, was not properly preserved at the trial where the only due process arguments the defendant raised related to the alleged suggestibility of the lineup and the failure to afford him counsel at the lineup. The latter issue is not raised on this appeal. The lower court’s determination that the lineup was not suggestive involves a mixed question of law and fact which is supported by the record and thus is beyond review ip this, court (People v McPherson, 56 NY2d 696).


author: Simons, J. Jasen, J.

text:
    In the Matter of the Estate of James J. Walker, Deceased. Mary A. W. Narita et al., Appellants; Richard H. Bernstein, Individually and on Behalf of Warshaw Burstein Cohen Schlesinger & Kuh, Respondents.
    Argued January 8, 1985;
    decided February 14, 1985

      POINTS OF COUNSEL

      Bertram, E. Hirsch for appellants.
    I. Public policy does not bar transfer to petitioners-appellants of the adoption decrees bequeathed to them. (Matter of Upjohn, 304 NY 366; Matter of Riggs, 109 Misc 2d 644; Matter of Baker, 164 Misc 622; Matter of Jones, 38 NY2d 189; Matter of Urch, 39 Misc 2d 186, 20 AD2d 291, 15 NY2d 893; Matter of Dammann, 12 NY2d 500; Hollis v Drew Theol. Seminary, 95 NY 166; Kraut v Morgan & Brother Manhattan Stor. Co., 38 NY2d 445; Matter of Hughes, 225 App Div 29, 251 NY 529; Matter of Liberman, 279 NY 458.) II. Respondent law firm does not have lawful possession of petitioners-appellants’ respective decrees of adoption. (Matter of Kohler, 231 NY 353; Matter of Conreid, 59 Misc 2d 593, 33 AD2d 992; Ward v Newburgh Sav. Bank, 269 App Div 525, 295 NY 766, 890; Matter of Chisholm, 177 Misc 423, 264 App Div 793, 956, 290 NY 842; Matter of Augustine, 87 Misc 2d 184; Matter of Krabbe, 208 Misc 197.)

      Jay A. Kranis and Barbara L. Levine for respondents.
    I. The Code of Professional Responsibility precludes respondent from disclosing the names of the biological mothers. II. Public policy precludes treating the decrees as mere personalty, transferrable by will, without the express intent of the testator that they be so transferred. (Yesterday’s Children v Kennedy, 569 F2d 431, 437 US 904; Matter of Linda F. M., 95 Misc 581, 72 AD2d 734, 52 NY2d 236, appeal dismissed sub nom. Mason v Abrams, 454 US 806; Matter of Romano, 109 Misc 2d 99; Matter of Anonymous, 89 Misc 2d 132; Matter of“Glasser”, 198 Misc 889.) III. The proper forum is in the courts of Illinois. (Yesterday’s Children v Kennedy, 569 F2d 431, 437 US 904.)
   OPINION OF THE COURT

Simons, J.

Petitioners, Mary Ann Walker Narita and James J. Walker, II, are the adopted children of former Mayor James J. “Jimmy” Walker of New York City and beneficiaries of his estate. They instituted this will construction proceeding to obtain two adoption decrees in respondents’ possession which they claim were bequeathed to them by their father and which identify their natural mother or mothers.

The issue presented is whether the testator intended to bequeath the adoption decrees to petitioners by his will and, if he did, whether enforcement of such a bequest is consistent with the public policy of this State. The Surrogate denied the application and dismissed the petition. She held the decrees were not personalty transferrable by the will but that enforcement would be denied in any event because disclosure of their contents would violate the public policy of New York and Illinois (the State of the adoptions). The Appellate Division affirmed for the reasons stated by the Surrogate with one Justice dissenting (see, 99 AD2d 448). We now affirm.

The testator, James J. Walker, and his wife, Violet Walker, adopted petitioner, Mary Ann Walker Narita, in Cook County, Illinois, on or about March 28, 1936. In July of the following year, they adopted James J. Walker, II in the same jurisdiction. After the adoptions, Walker obtained copies of the decrees and, upon his return to New York, entrusted them to his lawyer, Sidney Harris. Walker died in New York City on November 18, 1946. He left a last will and testament dated October 8, 1945 which was admitted to probate in New York County on December 12, 1946. Walker’s will appointed Harris as executor of his estate and guardian of his children who were minors at the time of his death. Upon Harris’ death, Charles L. Sylvester, his partner, replaced him. Both Harris and Sylvester have since died and respondent law firm is the successor to the law firm of Sylvester and Harris. Respondent Richard H. Bernstein is its trusts and estates partner.

Petitioners contend that upon reaching their majority, they were entitled to possession of the adoption decrees. To support this contention, they rely on the following paragraphs of decedent’s will:

“third. I give, devise and bequeath to my beloved children, james j. walker and mary ann walker, any and all my personal property, including furnishings, articles of personal attire and memorabilia of every kind, nature and description.”

“sixth. All the rest, residue and remainder of my properties I hereby give, devise and bequeath to my children, james j. walker and mary ann walker, or the survivors of them, share and share alike.”

Respondents’ principal contention is that the testator did not bequeath the property to petitioners, and that even if he did the transfer with the resulting disclosure of the identity of petitioners’ natural mother or mothers would be contrary to public policy of New York as expressed in Domestic Relations Law §114.

Analysis starts with the general rule that the law permits a person possessing testamentary capacity to dispose of property to any person in any manner and for any object or purpose so long as such disposition is not illegal or against public policy (Matter of Watson, 262 NY 284, 299; Hollis v Drew Theol. Seminary, 95 NY 166, 172; Matter of Hughes, 225 App Div 29, 31, affd 251 NY 529; 94 CJS, Wills, § 93). The court’s job in overseeing the administration of a testator’s estate is to implement the testamentary plan the testator intended, determining intent from the words used in the will (Matter of Cord, 58 NY2d 539, 544; Matter of Jones, 38 NY2d 189,193; Matter of Buechner, 226 NY 440, 444) and construing them according to their everyday and ordinary meaning (Matter of Wilhelm, 60 AD2d 32, 36, affd 46 NY2d 947; Matter of Pelton, 190 Misc 624, 626). Once the testator’s intent is determined, it must control the disposition of the property unless it is contrary to some public policy or established law.

Construing testator’s will according to these rules, we determine that he intended to bequeath the adoption decrees to petitioners. Testator did not say so explicitly, but the gift is encompassed within two paragraphs of the will, paragraph third which bequeaths to petitioners “any and all my personal property” and paragraph sixth, the residuary clause which names petitioners as the sole objects of his bounty and conveys all the remainder of testator’s property to them. We construe the phrase “all my personal property” in the third paragraph broadly as indicative of an intent to dispose of all tangible personalty, known or unknown (see, Matter of Baker, 164 Misc 622, 624-625). That construction is consistent with EPTL 3-5.1 which defines personal property as any property other than reed property, including tangible and intangible things and would include documents such as adoption decrees (see also, 4 Page, Law of Wills § 33.24, p 334). This result is not altered by the attorney’s affidavit contained in the record in which he alleges that Walker entrusted the decrees to Harris during his lifetime, an act which he contends permits an inference that they were intended to be confidential. The will provisions are unambiguous and the affidavit is therefore inadmissible (see, Matter of Cord, 58 NY2d 539, 544, supra; Matter of Wells, 113 NY 396, 401). Equally unavailing is respondents’ contention that the doctrine of ejusdem generis should be applied to paragraph third to limit the general bequest of “all my personal property” to property similar in kind to the specifically enumerated items which follow — furnishings, personal attire and memorabilia. The words of a general bequest followed by enumerated articles are not limited to things similar to the specific items listed (see, Matter of Reynolds, 124 NY 388, 397). Though paragraph third is sufficient to sustain petitioners’ claims, we also construe the broad language of the residuary clause as bequeathing the decrees to them in keeping with the presumption that a testator intends to dispose of his entire estate by will (see, Matter of Jones, 38 NY2d 189, supra; Matter ofDammann, 12 NY2d 500).

Notwithstanding testator’s intent, the legacy may not be given effect because we conclude that to do so would be contrary to the public policy of New York. We do not make that determination out of any personal sense of what is right for these litigants or of what satisfies the general public interest. The courts have no power to invalidate legacies or contracts because of their subjective view of what is sound policy or good policy. “[W]hen we speak of the public policy of the state, we mean the law of the state, whether found in the Constitution, the statutes or judicial records” (People v Hawkins, 157 NY 1, 12; see also, Glaser v Glaser, 276 NY 296, 302; Mertz v Mertz, 271 NY 466, 472; Straus & Co. v Canadian Pac. Ry. Co., 254 NY 407, 413; Hollis v Drew Theol. Seminary, 95 NY 166, supra). Those sources express the public will and give definition to the term (see, Muschany v United States, 324 US 49, 66; Vidal v Girard’s Executors, 2 How [43 US] 127). A legacy is contrary to public policy, not only if it directly violates a statutory prohibition, as the dissent suggests, but also if it is contrary to the social judgment on the subject implemented by the statute.

Illustratively, the courts will not enforce legacies and devises when enforcement would violate legal rules on the disposition of property such as the rale against perpetuities or the rules against creating an unlawful restraint on the power of alienation (see, e.g., Kalish v Kalish, 166 NY 368; Hacker v Hacker, 153 App Div 270), which attempt to bequeath the proceeds of a wrongful death action held for the exclusive benefit of the statutory distributees (EPTL 5-4.4; see, Matter of McHugh, 226 App Div 153), or which attempt to convey an interest in a joint tenancy (Levenson v Levenson, 229 App Div 402). Similarly, the courts will not enforce gifts conditioned on conduct which violates social policy, such as restricting a legatee’s right to marry (Matter of Liberman, 279 NY 458), or encouraging divorce or separation (Matter of Haight, 51 App Div 310; but cf. Matter of Hughes, 225 App Div 29, affd 251 NY 529, supra). And although a testator may legally dispose of certain property, statute or public policy may limit the manner in which he may dispose of it. Thus, a testator may dispose of his own body or direct the method or place of its burial, but he may not require that he be buried in an unauthorized place (see, Public Health Law § 4200 et seq.) and one court has held that although a testator has the power to devise real property, it would not enforce a direction that the trustee demolish the improvements and leave the land vacant for a number of years because to do so would violate the statutory policies against waste found in the Real Property Actions and Proceedings Law (see, Matter of Pace, 93 Misc 2d 969).

The bequest of these decrees contravenes none of these policies: the gift of the decrees is absolute and their physical transfer does not violate any rule of property or tenure. This gift :.s contrary to public policy because consummation of the transfer is sought for the purpose of discovering information which it i s against the public policy of New York to disclose without good cause. That public policy is expressed in Domestic Relations Law § 114 (see also, Social Services Law § 372; Public Health Law § 4138-b).

Section 114 provides that all “papers” pertaining to an adoption shall be kept as a permanent “sealed” court record and ths.t no “person shall be allowed access to such sealed records * * * except upon an order * * * of the court in which the order [of adoption] was made”. The statute further provides that “[n]o order for disclosure or access and inspection shall be granted except on good cause shown and on due notice to the adoptive parents and to such additional persons as the court may direct.” Section 114 does not apply to foreign adoption decrees and these were entered in Illinois before New York’s statute became effective in 1938. The policy underlying it is pertinent, however, because the statute existed at the time of the decedent’s death i:i 1946 and thus the policy it expresses applies to this construction proceeding (see, Matter of Samson, 233 App Div 173, affd 257 NY 358; see also, NY Jur 2d, Domestic Relations, § 5 [questions relating to adopted children are controlled by the law in effect at the decedent’s death]). Moreover, petitioners have called upon the New York courts to define the rights of parties to this proceeding and therefore we properly consider the social judgments embodied in our statutes.

Undoubtedly, section 114 expresses a public policy of this State which has evolved over the years. From 1873 until 1924 the Legislature permitted public access to adoption records (Alma Socy. v Mellon, 601 F2d 1225,1229, n 4,1235) but in 1924 the Legislature authorized the court, in its discretion, to order adoption records sealed (L 1924, ch 323, § 3 [Domestic Relations Law § 113]). Confidentiality became mandatory in 1938 (L 1938, ch 606, § 1 [Domestic Relations Law § 114]) and since then the Legislature on several occasions has adopted amendments to assure it (see, e.g., L1968, ch 320, § 3; L 1968, ch 365, § 1; L 1968, ch 1038, § 4). It recently addressed the subject in 1983 by adding Social Services Law § 373-a (L 1983, ch 326) and Public Health Law § 4138-b (L 1983, ch 898). In the former the Legislature provided that adoptive parents must be furnished a medical history of the natural parents, but only after identifying infor - mation had been removed from the records to preserve the natural parents’ confidentiality. It also amended the Public Health Law that year by creating an adoption information registry, but contained in the statute were carefully constructed safeguards limiting the disclosure of identities. In Matter of Linda F. M. (52 NY2d 236, 239), we set forth the reasons for legislative concern: sealed records shield the adopted child from possibly disturbing facts concerning the child’s birth or parentage; sealing insures that the natural parents will not be able to locate the child and interfere with the relationship between the child and the adoptive parents; and, finally, sealing protects the identity and privacy of the natural parents. Relevant here is the last ground, the assurance acquired by the natural mother or mothers that their identity and privacy will not be disturbed. It is irrelevant that the information was available to petitioners at one time or that testator could have transferred the decrees to them during his lifetime because neither course was actually pursued. Petitioners seek the aid of the courts to obtain the decrees and discover their contents. Disclosure violates the existing public policy of New York, however, and the machinery of the courts is not available to them for that purpose (see, Matter of Johnson, 59 NY2d 461; Hollis v Drew Theol. Seminary, 95 NY 166, 172, supra; 94 CJS, Wills, § 93).

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

Jasen, J.

(dissenting). The majority candidly concedes that the former Mayor Walker’s personal copies of the respective adoption decrees pertaining to his children were intended to be included as “any and all of my personal property” bequeathed to petitioners by his will, but holds, “[notwithstanding testator’s intent, the legacy may not be given effect because * * * to do so would be contrary to the public policy of New York” (Domestic Relations Law § 114) of protecting “the identity and privacy of the natural parents.”

What public policy is involved in this proceeding where petitioners seek only private personal property bequeathed to them by their father? This case does not involve adoptees who, in compliance with or in contravention of Domestic Relations Law § 114, seek access to sealed court records of a New York adoption proceeding. Rather, this case involves construction of a will probated in the courts of this State to determine whether the testator intended the copies of the Illinois adoption proceedings, part of his personal papers which were lawfully obtained by him, to pass to the petitioners as part of his personal property.

The majority accords Domestic Relations Law § 114 an overly expansive reach by extending the protections of the statute beyond official sealed adoption records to personal papers in private hands. Where, as here, there exist governing constitutional or statutory provisions, they delineate the outer boundaries of what is the public policy of this State. (Straus & Co. v Canadian Pac. Ry. Co., 254 NY 407, 413; Messersmith v American Fid. Co., 232 NY 161, 163 [Cardozo, J.]; cf. Gellhorn, Contracts and Public Policy, 35 Colum L Rev 679.) Such expressions of public policy limit and guide the judiciary as well as private litigants. Hence, the majority imposes an impermissible restriction upon the testamentary devolution of personalty and an unauthorized restraint upon the free dissemination of information contained in and transmitted by the private papers of the testator’s estate.

EPTL 3-5.1 defines personal property as any property other than real property. Thus, by bequeathing “any and all of my personal property” to petitioners, the language clearly indicates the testator’s intent thereby to dispose of all personal property, including personal papers, unless manifestly excluded. Indeed, under the rationale of the majority, the testamentary disposition would be defeated even if the legacy had bequeathed “any and all of my personal property, including my personal copies of Illinois adoption records relating to my beloved children.” Applying the EPTL to the testamentary provision in question, that is precisely what was bequeathed.

The irrelevance of the rationale of the majority’s public policy holding pertaining to the alleged privacy rights of the petitioners’ natural parents is best illustrated by the fact that the State of Illinois, the situs of the adoptions, did not extend protection, to such privacy interests until 1961, approximately 25 years after the adoptions had taken place and some 15 years after the legacy of Mayor Walker’s will had vested in the petitioners.

Moreover, the fact which perhaps most undermines the public policy rationale is that Mayor Walker, without violating any law of New York or Illinois, could have made an inter vivos transfer of the copies of the adoption decrees and the information contained therein to the petitioners. Public policy considerations should not be extended to transfers of personal property, including personal papers as we have here, to legatees pursuant to will.

The authorities relied upon by the majority, in support of its position that public policy may be defined in a manner beyond the text of the statute, are, in reality, supportive of a view which strongly disfavors government intrusion into the testamentary disposition of private property and which recognizes that the definition of public policy must be grounded in the uhembellished words of the statute. In Matter of Johnson (59 NY2d 461), this court, albeit upon 14th Amendment grounds, permitted the machinery of the courts to be utilized for the purpose of enforcing gender restrictive provisions in private charitable trusts, notwithstanding the finding that the eradication of gender-based discrimination is an important public policy of this State. (Matter of Johnson, supra, at p 472.)

In Hollis v Drew Theol. Seminary (95 NY 166, 171-172), this court articulated a classic exposition upon the role of the judiciary in defining public policy. In Hollis, it was said: “It is difficult to define and limit the power thus to enforce public policy which is not found in the statute law, and it should be exercised only in clear cases, and generally within limits already defined by decisions of acknowledged authority, based upon rules of the common law. There is certainly no occasion for stretching the power so as to apply it to new or doubtful cases in a State where the legislature is in session one-third of the year, and thus competent to indicate the public will as to any line of supposed public policy * * * Whatever the law condemns is against the policy of the law, and whatever the law expressly, albeit unwisely, permits, cannot be condemned by the courts as against public policy.” (Hollis v Drew Theol. Seminary, 95 NY 166,171-172, supra.) Thus, the cases relied upon by the majority certainly do not authorize this court to judicially engraft an amendment to Domestic Relations Law § 114 to enjoin transmittal of private papers, as well as sealed court records.

In sum, the public policy of New York is that the testator can dispose of property as he or she sees fit, so long as the disposition violates no law of the State. Since the copies of the adoption decrees at issue here were properly and lawfully obtained by the testator and could have been transferred to the petitioners during his lifetime, and were, as the majority concedes, part of his personal property at the time of his death, I would reverse the order of the Appellate Division and remand to the Surrogate’s Court, New York County, to grant the relief requested in the petition.

Chief Judge Wachtler and Judges Meyer and Kaye concur with Judge Simons; Judge Jasen dissents and votes to reverse i n a separate opinion; Judge Alexander taking no part.

Order affirmed, with costs.

       Petitioners are at liberty to seek disclosure of the contents of the records in Illinois, of course.

       From 1873 to 1924, adoption records in New York were public. (Alma Socy. v Mellon, 601 F2d 1225,1229, n 4, cert denied 444 US 995 [see, L 1924, ch 323, Domestic Relations Law (former) § 113].) Nothing in chapter 323 suggests that adoption records created prior to July 1, 1924, the effective date of the statute, were to be sealed. Moreover, there is authority for the proposition that the effect and disposition of adoption records are governed by the law in effect at the time of the adoption. (Matter of MacEwan, 280 App Div 193, 194.) Illinois, the State with the most significant contacts with the adoptions at issue, did not establish the confidentiality of adoption records until 1961. The public policy of Illinois should not be applied retroactively by this State inasmuch as this State’s own public policy, establishing the confidentiality of adoption records after 1924, is itself not to be given retroactive effect.


author: Meyer, J.

text:
    Methodist Hospital of Brooklyn et al., Appellants-Respondents, v State Insurance Fund et al., Respondents-Appellants, and Edward V. Regan, as Comptroller of the State of New York, et al., Respondents.
    Argued January 2, 1985;
    decided February 21, 1985

      POINTS OF COUNSEL

      Robert B. Davidson and Abigail T. Reardon for appellants-respondents.
    I. Chapters 55 and 404 constitute a deprivation of property without due process of law and a taking without compensation. (Chicago, Burlington & R.R. v Chicago, 166 US 226; Matter of Torpedo Dress Corp., 176 Misc 60, 259 App Div 994, 285 NY 626, 741; Young v Equitable Life Assur. Socy., 49 Misc 347,116 App Div 911; Mason v Cronk, 125 NY 496; Lynch v United States, 292 US 571; United States Trust Co. v New Jersey, 431 US 1; Patterson v Carey, 41 NY2d 714; Zurich Gen. Acc. & Liab. Ins. Co. v State of New York, 179 Misc 162; City of El Paso v Simmons, 379 US 497; Dolman v United States Trust Co., 2 NY2d 110.) II. Chapter 55 constitutes an impairment of contractual obligations in violation of the United States Constitution. (United States Trust Co. v New Jersey, 431 US 1; Allied Structural Steel Co. v Spannaus, 438 US 234; Energy Reserves Group v Kansas Power & Light, 459 US 400; Cook v City of Binghamton, 48 NY2d 323; Pennsylvania R.R. Co. v State of New York, 11 NY2d 504; Patterson v Carey, 41 NY2d 714; Wisconsin & Michigan Ry. Co. v Powers, 191 US 379; Lynch v United States, 292 US 571; Indiana ex rel. Anderson v Brand, 303 US 95, 667; Mason v Cronk, 125 NY 496.) III. Chapter 55 constitutes an unconstitutional legislative intrusion upon discretionary powers of State officials with responsibility for the State Insurance Fund. (Saxton v Carey, 44 NY2d 545; Sadigur v State of New York, 173 Misc 645; Patterson v Carey, 41 NY2d 714; Sgaglione v Levitt, 37 NY2d 507.) IV. Chapters 55 and 404 implicitly create a loan or gift of the State’s credit in violation of article VII of the New York State Constitution. (Matter of City of New York [United Nations Dev. Corp.], 72 Misc 2d 535.) V. Chapter 55 gives rise to a debt owed by the State to the State Insurance Fund in violation of article VII of the New York State Constitution. (Wein v State of New York, 39 NY2d 136; Wein v Levitt, 42 NY2d 300; Newell v People, 7 NY 9.) VI. Chapters 55 and 404 create an appropriation scheme in violation of article VII of the New York State Constitution. (Matter of County of Oneida v Berle, 91 Misc 2d 694, 66 AD2d 985, 49 NY2d 515.) VII. The forced transfer of $190 million from the State Insurance Fund and the resulting loss of investment income constitutes a de facto tax on employers in violation of article III of the New York State Constitution. (Matter of Joslin v Regan, 63 AD2d 466, 48 NY2d 746.)

      Andrew S. Fisher, Raymond C. Green, Harold L. Fisher, Gerald Gorinsky and Ellen M. Levanti for State Insurance Fund and others, respondents-appellants.
    I. The reserves which the State seized do not belong to the State but, rather, constitute a “trust fund” in favor of insureds and their beneficiaries which the State could not constitutionally take. (Matter of Jensen v Southern Pac. Co., 215 NY 514, 244 US 205; Commissioners of State Ins. Fund v Low, 3 NY2d 590; Cardinal v State of New York, 304 NY 400; Matter of Equitable Reserve Fund Life Assn., 131 NY 354; Mason v Cronk, 125 NY 496; Accident Fund v Baerwaldt, 545 F Supp 1030; Matter of Roosevelt Raceway v Monaghan, 11 AD2d 206, 9 NY2d 293, 966; Matter of Attorney-General of State of N. Y. v North Am. Life Ins. Co., 82 NY 172.) II. The Workers’ Compensation Law and all contracts of insurance issued by the State Insurance Fund provide vested rights to insureds. (Matter of Post v Burger & Gohlke, 216 NY 544; Lynch v United States, 292 US 571; Mason v Cronk, 125 NY 496; Matter of City of New York (Brookfield Refrig. Corp. —Zoloto], 58 NY2d 532; Char-Mo Investors v Market Ins. Co., 44 NY2d 793.) III. Chapter 55 is an unconstitutional impairment of the vested contractual rights of the State Insurance Fund’s insureds. (United States Trust Co. v New Jersey, 431 US 1; Patterson v Carey, 41 NY2d 714; Allied Structural Steel Co. v Spannaus, 438 US 234; Marvel v Dannemann, 490 F Supp 170; Worthen Co. v Thomas, 292 US 426; Worthen Co. v Kavanaugh, 295 US 56; Sgaglione v Levitt, 37 NY2d 507; Flushing Natl. Bank v Municipal Assistance Corp., 40 NY2d 731; Matter of Subway-Surface Supervisors Assn. v New York City Tr. Auth., 44 NY2d 101.) IV. The transfers to the State’s general fund mandated by chapiter 55 is a taking of property without either just compensation or due process. (Board of Regents v Roth, 408 US 564; Lynch v United States, 292 US 571; Quinn v Syracuse Model Neighborhood Corp., 613 F2d 438; Patterson v Carey, 41 NY2d 714; United States v Reynolds, 397 US 14.) V. The $190 million appropriation contained in chapter 404 and the roll over thereof for an indeterminate and possibly infinite number of years is an unconstitutional violation of article VII, § 7 of the State Constitution. (Anderson v Regan, 53 NY2d 356.) VI. Chapter 404 violates article VII, § 9 of the State Constitution. (Wein v State of New York, 39 NY2d 136; Matter of County of Oneida v Berle, 49 NY2d 515.) VII. Chapter 404 violates article VII, § 11 of the State Constitution. (New York Public Interest Research Group v Levitt, 62 AD2d 1074, 46 NY2d 849.) VIII. In the event that the judgment of the court below is reversed, this court should or der restitution pursuant to CPLR 5523.

      Robert Abrams, Attorney-General (Richard G. Liskov, Robert S. Hermann and Peter H. Schiff of counsel), for Edward V. Regan and others, respondents.
    I. Appellants lack any existing contract rights that have been unconstitutionally impaired. (Allied Structural Steel Co. v Spannaus, 438 US 234; Energy Reserves Group v Kansas Power & Light, 459 US 400; Cook v City of Binghamton, 48 NY2d 323; Pennsylvania R.R. Co. v State of New York, 11 NY2d 504; Cammardo v Board of Educ., 79 AD2d 864; Matter of Moore v Gallup, 267 App Div 64, 293 NY 846; Matter of State Ins. Fund v Boyland, 282 App Div 516, 309 NY 1009; Matter of Jensen v Southern Pac. Co., 215 NY 514, 244 US 205; Cardinal v State of New York, 279 App Div 326, 304 NY 400.) II. Because appellants do not have a property interest in the State Insurance Fund surplus, .chapter 55 does not contravene the 5th and 14th Amendments. (F.H.A.v Darlington, Inc., 358 US 84; Middleton v Texas Power & Light Co., 249 US 152; Chicago & Alton R.R. Co. v Tranbarger, 238 US 67; Lindsay v Wyman, 372 F Supp 1360; Matter of Kay v Whalen, 44 NY2d 754; Anderson v City of Northlake, 500 F Supp 863, 657 F2d 272; Grossman v Axelrod, 646 F2d 768; Jacobson v Hannifin, 627 F2d 177; Beitzellv Jeffrey, 643 F2d 870; Uptown People’s Community Health Servs. Bd. of Directors v Board ofCommrs., 647 F2d 727, cert denied sub nom. Uptown People’s Community Health Servs. Bd. of Directors v Schweiker, 454 US 866.) III. Appellants’ State constitutional claims are barred by article I, § 18 and, in any event, are insufficient. (Crosby v State of New York, 57 NY2d 305; Ryder Truck Lines v Maiorano, 44 NY2d 364; Koutrakos v Long Is. Coll. Hosp., 47 AD2d 500, 39 NY2d 1026; Barrencotto v Crocker Saw Co., 266 NY 139; Shanahan v Monarch Eng. Co., 219 NY 469; Matter of Schmidt v Wolf Contr. Co., 269 App Div 201, 295 NY 748; Matter of County of Oneida v Berle, 49 NY2d 515; Board of Supervisors v State of New York, 153 NY 279; Matter of McPherson, 104 NY 306; Hotel Dorset Co. v Trust for Cultural Resources, 46 NY2d 358.) IV. Cross appellants lack standing to challenge the statutes’ constitutionality. (Matter of City of New York v Christiansen, 85 AD2d 663, 58 NY2d 884; Matter of Jeter v Ellenville Cent. School Dist., 41 NY2d 283; Black Riv. Regulating Dist. v Adirondack League Club, 307 NY 475; Matter of County of Cayuga v McHugh, 4 NY2d 609; Town of Black Brook v State of New York, 41 NY2d 486; Matter of Community Bd. No. 4 v Board of Estimate, 88 AD2d 832, 57 NY2d 846; Sweeney v State of New York, 251 NY 417; Board of Educ. v Allen, 20 NY2d 109; Board of Educ. v Gootnick, 49 NY2d 683.)
   OPINION OF THE COURT

Meyer, J.

The transfer of $190 million from the State Insurance Fund to the general fund of the State does not violate the Federal or State Constitution. The order of the Appellate Division should, therefore, be affirmed, without costs.

I

The purpose of the present action is to obtain judgment (1) declaring unconstitutional section 92 (2) of chapter 55 of the Laws of 1982, which directed the State Insurance Fund (SIF) to transfer to the State’s general fund $190 million by March 1, 1983, and (2) requiring the return of that sum plus interest from March 1, 1983 to the SIF. The SIF exists “for the purpose of insuring employers against liability for personal injuries or death sustained by their employees [worker’s compensation liability], including liability * * * imposed upon employers by reason of a suit or claim brought against the employer by another to recover the amount of damages obtained from such other by an employee of the employer for injuries or in case of death by his dependents for death sustained by such employee arising out of and in the course of his employment [so-called IB coverage]” (Workers’ Compensation Law § 76 [1]; bracketed material added).

Section 86 of chapter 55 added a new section 87-f to the Workers’ Compensation Law which in its subdivision 1 establishes the mechanism for annual so-called “dry” appropriations to the SIF of $190 million and provides in its subdivision 2 that any appropriation thus made “shall be deemed an admitted asset of the state insurance fund” and that any transfer of moneys from the SIF to the State’s general fund “is deemed a proper and prudent legal undertaking for any state officer with the responsibility for the custody or the investment of the assets of the fund”. Subdivision 1 requires inclusion in each year’s budget bill for the next fiscal year of $190 million for the SIF and provides that if in any year the Governor fails to do so or the Legislature fails to appropriate the budgeted amount, the amount appropriated for the preceding fiscal year “shall be payable forthwith to the fund on the first day of July of such year”. Section 93 of chapter 55 requires that any action relative to the foregoing be brought against the State and holds harmles s every State officer responsible for the custody or investment of the SIF, as well as persons employed by or who advise such an officer, from liability by reason of the transfer directed or othe r provisions of the act. Chapter 404 of the Laws of 1982 made the necessary $190 million appropriation to the SIF “for the purpose of maintaining the solvency” of the fund, but provided “that no expenditure may be made from this amount if other assets of such fund not part of reserves for claims or losses are available,” and required issuance and filing of a certificate of approval by the Director of the Division of the Budget before expenditure from the appropriation can be made. Provisions similar to those of chapter 404 have been contained in the appropriation bills for 1983 (ch 50) and 1984 (ch 50) under the heading “Insurance and Securities Funds Reserve Guarantee.”

The plaintiffs are two nonprofit corporations and a commercial corporation who are employers insured by the SIF. Defendants are the SIF, its Commissioners, its Supervising Actuary (SIF-defendants), the State Comptroller, the Commissioner of Taxation and Finance and the State (State-defendants). The complaint in separate causes of action asks that chapter 55 be declared unconstitutional because it (1) impairs contractual obligations in violation of article I, § 10 (1) of the Federal Constitution; (2) constitutes a deprivation of property without due process and a taking without just compensation in violation of the 5th Amendment of the Federal Constitution and article I, §§ 6 and 7 of the New York Constitution; (3) constitutes an improper intrusion by the Legislature upon discretionary powers of State officials of the executive branch in violation of article III, § 1, and article IV, § 1 of the State Constitution; (4) creates a loan of State credit in violation of article VII, § 8 of the State Constitution; (5) creates a debt without providing that it be evidenced by a note in violation of article VII, § 9 of the State Constitution; (6) creates a debt without voter approval in violation of article VII, § 11 of the State Constitution; (7) constitutes an appropriation which is not required to be expended within two years of passage and is fixed by reference to other laws in violation of article VII, § 7 of the State Constitution; and (8) in depriving policyholders of the income that otherwise would have been earned constitutes a de facto tax on employers in violation of article III of the State Constitution. The State-defendants’ answer asserts affirmative defenses as to each cause of action, denies that the SIF is independent of the State and alleges that its reserves and investments are the property of the State. The SIF-defendants’ answer admits the issuance of policies to the plaintiffs and that absent transfer of $190 million to the general fund of the State income would be earned by the SIF, but otherwise denies knowledge and information and refers the court to the various constitutional and statutory provisions involved. They also cross-claim for judgment declaring whether chapters 55 and 404 are unconstitutional.

Plaintiffs moved for summary judgment and the SIF-defendants not only joined in and supported that motion but also argued, as do plaintiffs, that SIF funds are “fiduciary funds” within the meaning of the State Finance Law § 70 and, therefore, are property of the policyholders rather than State funds?. The State-defendants cross-moved for summary judgment. Special Term, in a thoughtful opinion (117 Misc 2d 178), denied plaintiffs’ motion, granted the State-defendants’ cross motion and entered judgment declaring the provisions of chapters 55 and 404 relating to the $190 million transfer by the SIF constitutional. The Appellate Division, in an exhaustive opinion (102 AD2d 367), affirmed, one Justice dissenting on the ground t hat those insured by the Fund have a property interest in its surplus because “the Fund operates as a mutual insurance pool” (102 AD2d, at p 385). We agree with the result and much of the opinions written below, and write primarily to clarify the status of the Fund as a State agency for all of whose liabilities the State is responsible, rather than a mutual insurance pool. That conclusion, explicated in part II of this opinion, because it negates the conception of a property or contractual interest of Fund policyholders in its surplus, answers the contract impairment, due process, just compensation and de facto tax contentions advanced by plaintiffs and the SIF-defendants. For other reasons set forth in part III below, we conclude further that the statutes in question violate none of the other State constitutional provisions on which plaintiffs and the SIF-defendants rely.

II

Nothing in article 6 of the Workers’ Compensation Law expressly establishes the SIF as a mutual insurance organization. A mutual insurance company is organized and operated for the benefit of its policyholders who are by virtue of their policies members of the company (2 Couch, Insurance § 19.14 [2d ed]). It is run by a board of directors elected by the members (Insurance Law § 56); its members are, absent approval by the Superintendent of Insurance of its issuance of nonassessable policies, subject to contingent mutual liability for assessment should the assets of the company be insufficient to meet liabilities (Insurance Law § 57; 30 NY Jur, Insurance, §§ 791, 792), and are entitled to dividends from surplus as may be declared by the board of directors (Insurance Law §§ 58,197, 345). In some such companies the payment of annual dividends is within the discretion of the directors (Insurance Law §§ 57, 318, 323, 346); in others, annual payment of dividends is mandated by statute (Insurance Law § 216). When a dividend is in fact declared, it must be equitably apportioned among the policyholder-members, its purpose and effect being to reduce pro tanto the cost of insurance to the policyholder (Kern v John Hancock Mut. Life Ins. Co., 8 NY2d 833, affg 8 AD2d 256, 259; Rhine v New York Life Ins. Co., 273 NY 1, 13), but with the possible exception of companies whose annual dividends are mandated by statute, the right to receive a dividend when declared creates no trust or property interest of the policyholder in the surplus (see, Grobe v Erie County Mut. Ins. Co., 169 NY 613, affg 39 App Div 183; Uhlman v New York Life Ins. Co., 109 NY 421; Fidelity & Cas. Co. v Metropolitan Life Ins. Co., 42 Misc 2d 616).

When one turns to the provisions governing the SIF, it is at once apparent that there are more dissimilarities than likenesses between it and a mutual insurance company. The only reference to mutual companies in article 6 of the Workers’ Compensation Law, which governs the SIF, is in section 99, which requires the Commissioners to report to the Superintendent of Insurance “at the same time and in the same manner as is required from mutual employer’s liability and workmen^ [worker’s] compensation corporations”. But unlike mutual insurance companies, the SIF was created and exists as a State agency within the Department of Labor (Workers’ Compensation Law § 76 [l]), its policyholders are not members and have no vote or say in administration, the Fund being administered by commissioners appointed by the Governor with the advice and consent of the Senate (id., § 77) and the Commissioner of Taxation and Finance being custodian of the Fund (id., § 85). Policyholders in the SIF not only have no responsibility to contribute to losses, as do some mutual insureds, but also are protected, as no other mutual insured is, from all claims predicated on employee injury even if the SIF, as a fund, were to become insolvent. This results from the status of the Fund as a State agency, from the express statutory release of fund-insured-employers from liability, and from the deletion, by chapter 615 of the Laws of 1922, from the provision which is now Workers’ Compensation Law § 76 (1) of the sentence included in the original enactment which read: “Such fund shall be administered by the commission* *** without liability on the part of the state beyond the amount of such fund.” The liability thus accepted by the State extends, moreover, not only to direct claims of employees but also to LB coverage of claims against an employer by a third party to recover damages awarded a policyholder’s employee against such third party (Cardinal v State of New York, 304 NY 400, 405, 414-416). Moreover, dividends to policyholders are discretionary, not mandatory (Workers’ Compensation Law § 80: “there may be credited or paid to each individual member” [emphasis supplied]).

Plaintiffs argue that the provisions of section 76 (1) descriptive of the Fund indicate a legislative intent that policyholders have a property interest in its surplus. The answer is that the statement of what the Fund shall consist of and what expenses may be paid from it simply do not deal with what is to be done with surplus, and that it is equally consistent with those descriptive provisions, when considered together with the facts that dividends are discretionary and that the State, and only the State, is responsible for payment of awards resulting from employee injury or death, either through its agency, the Fund, or from other State moneys, that such surplus as may exist after payment of discretionary dividends belongs to the State, not to policyholders. The surplus being State money the State could have simply taken it with no strings attached. That it has seen fit instead to assure the solvency of the Fund through the dry appropriation mechanism established by Workers’ Compensation Law § 87-f is not inconsistent with that conclusion. It is rather a pledge or earnest of the State’s intention to carry out the obligation which it has borne since the “without liability” sentence was deleted from Workers’ Compensation Law § 76 (1) in 1922.

What has been said so far establishes that State Insurance Fund policyholders have no property interest in the surplus of the Fund, short of the actual declaration of a dividend by the Commissioners. Plaintiffs’ impairment of contract argument is largely answered by that conclusion, but we note further our agreement with the Appellate Division (102 AD2d, at p 378 ff) that nothing in the statutory provisions so far referred to or in section 89’s direction that “premiums in the state fund shall be fixed at the lowest possible rates consistent with the maintenance of a solvent fund and of reasonable reserves and surplus” rises to the level of language “ ‘susceptible of no other reasonable construction’ than that a contract was intended” (Pennsylvania R.R. Co. v State of New York, 11 NY2d 504, 511). Likewise there being neither property nor contract interest of policyholders in surplus, the effect upon them of loss to the SIF of interest on the $190 million transferred cannot constitute a de facto tax in violation of article III of the New York Constitution.

Ill

The remaining State constitutional grounds can be more summarily disposed of. By transferring $190 million from one State pocket (the SIF) to another (State general funds), the State has relieved the Fund’s Commissioners of the necessity of exercising investment discretion with respect to part of the funds previously entrusted to them, but has done so in the exercise of its prerogative as owner of the surplus funds and, therefore, without infringing upon separation of powers. Nor by doing so has the State improperly loaned its credit to itself, or created a debt to itself. Rather it has, as already noted, simply given a pledge or earnest of its intention to carry out its obligations with respect to Fund policyholders should that become necessary.

Finally, we perceive no violation of the provisions of article VII, § 7 of the State Constitution governing appropriation bills. Workers’ Compensation Law § 87-f (1), which establishes the mechanism, itself makes no appropriation. The appropriation:? have been made in each year by separate act (L 1982, ch 404; L 1983, ch 50; L 1984, ch 50), each of which, without reference to any other law, fixes the amount appropriated and specifies the purpose to which the sum appropriated is to be applied. That the moneys appropriated are not available for expenditure without approval of the Director of the Division of the Budget and tha t no expenditure may be made of the funds if other assets of the SIF not part of reserves for claims or losses are available does no violence to the constitutional inhibition. And payment within two years next after passage of the appropriation act is assured by the provision of section 87-f (1) that requires payment of the amount appropriated in any given fiscal year if the Governor fails to budget or the Legislature fails to appropriate such art amount for the succeeding fiscal year. Because such payment must be made on July 1 of the succeeding fiscal year, payment, will be made, if at all, within the required two-year period.

For the foregoing reasons, the order of the Appellate Division should be affirmed, without costs.

Chief Judge Wachtler and Judges Jasen, Simons and Kaye: concur; Judge Alexander taking no part.

Order affirmed, without costs.

      . Unlike the claim advanced in American Ins. Assn. v Chu (64 NY2d 379 [decided herewith]), the claim presented by plaintiffs herein is not premature, for the transfer of $190 million from the SIF to the State will reduce by some $134 million over the next five years accretions to the Fund through interest, in which plaintiffs claim a present contract and property right.

      . The State-defendants argue that, the SIF being a State agency, the SIF-defendants have no standing to challenge constitutionality of the statute. The Commissioners are, however, required by Workers’ Compensation Law § 77 to be policyholders insured in the SIF and to take a constitutional oath of ofiice. Thus, notwithstanding the immunity and indemnity provisions of section 93 of chapter 55 of the Laws of 1982, they have standing (Board of Educ. v Allen, 20 NY2d 109, affd 33x US 236).

      . We agree, for the reasons expounded by the Appellate Division (102 AD2d, at pp 372-374), that the SIF is a State agency. For the history of its creation, see, Sadigur v State of New York (173 Misc 645).

      . Workers’ Compensation Law § 53 provides that: “An employer securing the payment of compensation by contributing premiums to the state fund shall thereby become relieved from all liability for personal injuries or death sustained by his employees, and the persons entitled to compensation under this chapter shall have recourse therefor only to the state fund and not to the employer. An employer shall not otherwise be relieved from the liability for compensation prescribed by this chapter except by the payment thereof by himself or his insurance carrier.”

      . The reference is to the Workers’ Compensation Commission, as it is presently designated (see, L 1913, ch 816, § 3 [2]).

      . Though Cardinal held only the Fund liable to the policyholder, the case presented no issue concerning liability of the State as distinct from the SIF. Nor, in light of the broad language of Workers’ Compensation Law § 53 (quoted in n 4, supra) relieving an employer insured by the SIF “from all liability for personal injuries or death sustained by his employees,” do we attach significance to the fact that Workers’ Compensation Law § 76 (1) uses more explicit language as to third-party claims. Matter of Consolidated Mut. Ins. Co. (Arcade Cleaning Contrs.) (60 NY2d 1), which dealt with the security fund under Insurance Law § 334, is not to the contrary.

      . The last two sentences of the subdivision read: “Such fund shall consist of all premiums received and paid into the fund, of property and securities acquired by and through the use of moneys belonging to the fund and of interest earned upon moneys belonging to the fund and deposited or invested as herein provided. Such fund shall be applicable to the payment of losses sustained on account of insurance, to the payment of expenses in the manner provided in this chapter and to the payment of premiums for reinsurance in any insurance corporation of the whole or any part of any policy obligations;’

      . The section reads: “No money shall ever be paid out of the state treasury or any of its funds, or any of the funds under its management, except in pursuance of an appropriation by law; nor unless such payment be made within two years next after the passage of such appropriation act; and every such law making a new appropriation or continuing or reviving an appropriation, shall distinctly specify the sum appropriated, and the object or purpose to which it is to be applied; and it shall not be sufficient for such law to refer to any other law to fix such sum.”


text:
    American Insurance Association et al., Appellants, v Roderick Chu, as Commissioner of Taxation and Finance of the State of New York, et al., Respondents.
    Argued January 2, 1985;
    decided February 21, 1985

      POINTS OF COUNSEL

      Robert S. Smith and Shari L. Patrick for appellants.
    I. Chapter 55 is an unconstitutional impairment of the State’s contracts. (United States Trust Co. v New Jersey, 431 US 1; Pennsylvania R.R. Co. v State of New York, 11 NY2d 504; Patterson v Carey, 41 NY2d 714; Energy Reserves Group v Kansas Power & Light, 459 US 400; Mason v Cronk, 125 NY 496; Allied Structural Steel Co. v Spannaus, 438 US 234.) II. Chapter 55 constitutes a taking of property without just compensation or due process. (Chicago, Burlington & R.R. v Chicago, 166 US 226; Matter of Pocoroba v State Ins. Fund, 253 App Div 407; Mobil Oil Corp. v Rubenfeld, 72 Misc 2d 392, 48 AD2d 428; Quinn; Syracuse Model Neighborhood Corp., 613 F2d 438; In re Bajardi, 8 F2d 551, 9 F2d 797, cert denied sub nom. New York v Wilson, 270 US 651; Webb’s Fabulous Pharmacies v Beckwith, 449 US 155; Story v New York El. R.R. Co., 90 NY 122; Penn Cent. Transp. Co. v New York City, 438 US 104; Armstrong v United States, 364 US 40; Joslin Mfg. Co. v Providence, 262 US 668.)

      Robert Abrams, Attorney-General (Richard G. Liskov, Robert Hermann and Peter H. Schiff of counsel), for Roderick Chu and another, respondents.
    I. Because appellants have totally failed to show that the challenged enactment has had, or will have, any actual effect upon them, the court should decline to render a declaratory judgment. (Combustion Eng. v Travelers Indem. Co., 75 AD2d 777, 53 NY2d 875; Connor v Siebert, 83 AD2d 698, 56 NY2d 676; Park Ave. Clinical Hosp. v Kramer, 26 AD2d 613,19 NY2d 958; Communist Party v Control Bd., 367 US 1; O’Shea v Littleton, 414 US 488.) II. Assuming arguendo a justiciables controversy, appellants have failed to prove unconstitutionally beyond a reasonable doubt by showing contract rights in the

      three funds as a whole. (Cook v City of Binghamton, 48 NY2d 323; Pennsylvania R.R. Co. v State of New York, 11 NY2d 504; Cammardo v Board ofEduc., 79 AD2d 864; Matter of Jensen v Southern Pac. Co., 215 NY 514, 244 US 205; Matter of Schmidt v Wolf Contr. Co., 269 App Div 201, 295 NY 748; Montgomery v Daniels, 38 NY2d 41; People v Roper, 35 NY 629; Matter of Moore v Gallup, 267 App Div 64, 293 NY 846; Allied Structural Steel v Spannaus, 438 US 234; Lynch v United States, 292 US 571.) III. Because appellants lack a property interest in each fund as a whole no unconstitutional deprivation has occurred. (Noble State Bank v Haskell, 219 US 104; Roth v Board of Regents, 408 US 564; Downer v Church, 44 NY 647; Matter of Folsom, 6 AD2d 691, 6 NY2d 886; Matter of Gagliardi, 55 NY2d 109; Matter of Totten, 179 NY 112; Matter of Cahill v Tremaine, 245 App Div 773, 269 NY 573; Matter of State Ins. Fund v Boyland, 282 App Div 516, 309 NY 1009; Travelers Indem. Co. v State of New York, 33 AD2d 127, 28 NY2d 561; F.H.A. v Darlington, Inc., 358 US 84; Middleton v Texas Power & Light Co., 249 US 152.)

      Andrew S. Fisher, Raymond C. Green and Harold L. Fisher for Martin A. Fischer and others, respondents.
   OPINION OF THE COURT

Meyer, J.

The “justiciable controversy” upon which a declaratory judgment may be rendered requires not only that the plaintiffs in such an action have an interest sufficient to constitute standing to maintain the action but also that the controversy involve present, rather than hypothetical, contingent or remote, prejudice to plaintiffs. Because the controversies involved in the present action are not ripe for determination, the order of the Appellate Division should be modified by striking the declaration and dismissing the complaint and, as so modified, should be affirmed, without costs.

The purpose of the present action is to obtain judgment declaring unconstitutional section 92 of chapter 55 of the Laws of 1982, insofar as it directs transfer into the State’s general fund of .$50 million from the Aggregate Trust Fund (ATF), $67 million from the Stock Workers’ Compensation Security Fund (SWCF) and $87 million from the Property and Liability Insurance Security Fund (PLIS) and enjoining such transfers or requiring return of the funds if transferred. The ATF, established by Workers’ Compensation Law § 27, is a fund into which an employer or compensation carrier may (in some cases must) pay the present value of future periodic benefits payable to compensation claimants and be thereby discharged from further liability to the claimant. Workers’ Compensation Law § 27 (6) provides that the fund “shall be kept separate and apart from all other moneys of the state fund”. The SWCF, established by article 6-A of the Workers’ Compensation Law, was created to protect those entitled to compensation benefits against the insolvency of a stock insurer. It is funded by payments from stock carriers, which are, however, suspended once the fund reaches $84 million (Workers’ Compensation Law § 109). The PLIES, created by Insurance Law § 334, serves a similar function with respect to specified types of property and liability insurers, is funded by payments from such carriers, and contains a similar provision suspending carrier payments. As to both the SWCF and the PLIS, the governing statute directs that the fund “shall be separate and apart from any other fund so created and from all other state moneys, and the faith and credit of the state of New York is pledged for its safekeeping” (Workers’ Compensation Law § 109-b [1]; Insurance Law § 333 [6]).

Sections 84, 88 and 90 of chapter 55 make “dry appropriations” to each of the three funds equal to or greater than the amount transferred under section 92 and provide in each case that the appropriation thus made “shall be deemed an asset” of the fund and that the transfer from the fund to the State’s general fund shall be deemed a prudent investment. The “dry appropriation” requires inclusion in each year’s budget bill for the next fiscal year of an amount equal to the amount transferred by each find to the State’s general fund and provides that if in any year the Governor fails to do so or the Legislature fails to appropriate the specified amount, the amount appropriated for the preceding fiscal year be paid forthwith to the fund. Section 93 of the act requires that any action relative to the foregoing be brought against the State and holds harmless every State officer, as well as persons employed by or who advise such an officer, from liability by reason of the transfers directed or actions mandated by other provisions of the act. Chapter 404 of the Laws of 1982 made the necessary appropriations to each of the three funds for 1982, but provided as to the SWCF and PLÉS that no expenditure be made from the appropriation if other assets of the fund are available, and as to the ATF that no expenditure be made if other assets not part of reserves for claims or losses are available.

The plaintiffs are three trade associations of insurance companies, 13 property and casualty insurers, two policyholders of such insurers, and three beneficiaries of the ATF. The defendants are the Commissioner of Taxation and Finance, custodian of the PLIS and SWCF, the Superintendent of Insurance, who is charged with administering those two funds, and the Commissioners of the State Insurance Fund (SIF), who are custodians of and charged with administration of the ATF. The SIF Commissioners served an answer containing a cross claim asking that the court declare whether chapter 55 as it relates to the ATF is constitutional. The other two defendants served a separate answer alleging a number of affirmative defenses, including that the complaint lacked specificity as to the nature and extent of plaintiffs’ injury.

Plaintiffs moved for summary judgment and defendants other than the SIF Commissioners cross-moved for like relief. The papers on the cross motion established, and plaintiffs do not dispute, that the ATF, after transfer of the $50 million to the general fund, will still have $13 million in surplus funds over and above all claims, expenses and reserves; that the PLIS held $212 million and would on February 1, 1983 receive an additional $21 million and since 1977 had annual income in excess of the claims submitted in any year; and that the SWCF had a balance of $78 million before transfer pursuant to chapter 55 and in the 50 years of its existence had only been required to pay claims totaling $2 million. Special Term, holding that, “No real and present controversy exists,” denied plaintiffs’ motion, granted defendants’ cross motion and dismissed the complaint. On appeal the Appellate Division concluded that plaintiffs had standing but that chapter 55 was constitutional and, therefore, modified Special Term’s order to so declare and to strike the provision dismissing the complaint.

The declaration against plaintiffs should be stricken and the complaint dismissed. That plaintiffs may have sufficient interest in the funds to be accorded standing to maintain the action is but part of the equation. The action is premature and as a matter of law may not be maintained if the issue presented for adjudication involves a future event beyond control of the parties which may never occur (Combustion Eng. v Travelers Indem. Co., 53 NY2d 875, affg 75 AD2d 777; New York Public Interest Research Group v Carey, 42 NY2d 527; Park Ave. Clinical Hosp. v Kramer, 19 NY2d 958, affg 26 AD2d 613; Prashker v United States Guar. Co., 1 NY2d 584; see, Borchard, Declaratory Judgments, at 56-58 [2d ed]; 1 Anderson, Actions for Declaratory Judgments § 9, at 50-51 [2d ed]). That the balance in each of the funds has been reduced by the transfers directed by section 92 creates no risk that plaintiffs paid from the ATF will not be paid or that the plaintiffs interested in the other two funds will be left unprotected by insolvency of a carrier in view of the appropriations made by sections 84, 88 and 90 and by chapter 404. Plaintiffs argue that they are insufficiently protected because a subsequent Legislature may omit the required appropriation for a given year and repeal both the prior year’s appropriation and the provisions of chapter 55 directing that annual appropriations be made. The possibility of that combination occurring, however, is just such a future event beyond the control of the parties to the action which may never occur as the above cited cases put beyond the reach of a declaratory judgment. Moreover, the possibility that because the SWCF and PLIS will, as a result of the transfers, be earning less interes t, plaintiffs may be required to contribute additional moneys to those funds is nothing more than speculation in light of the history of the funds. Finally, neither United States Trust Co. v New Jersey (431 US 1) nor Patterson v Carey (41 NY2d 714), relied on by plaintiffs, requires a different conclusion. Neither dealt with the issue of ripeness, but on that question the Supreme Court’s notation that there was an impairment of cor.tract because the repealed covenant was not “replaced by an arguably comparable security provision” (431 US, at p 19) appears, by analogy, to support the conclusion here reached.

Accordingly, the order of the Appellate Division should be modified by striking the declaration and dismissing the complaint and, as so modified, should be affirmed, without costs.

Chief Judge Wachtler and Judges Jasen, Simons and Kaye concur; Judge Alexander taking no part.

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

       [2] We have not overlooked the fact that the Commissioner of Taxation and Finance and the Superintendent of Insurance are nonappealing parties, and would not be entitled to affirmative relief were this not a declaratory judgment action (see, Hecht v City of New York, 60 NY2d 57). The relief granted here is incidental to the restraint upon the court against rendering an advisory determination. Having concluded that the controversy is nonjusticiable, the court cannot allow the declaration to stand.