text:
    Joseph Greaves, Respondent, v. Public Service Mutual Insurance Co., Appellant, et al., Defendants.
    Argued November 12, 1958;
    decided January 8, 1959.

      Sidney Advocate and E. Edan Spencer for appellant.
    The automobile policy issued to the L. Davis Trucking Co. does not afford insurance coverage to plaintiff. (Standard Sur. & Cas. Co. v. Maryland Cas. Co., 281 App. Div. 446; Morgan v. Greater N. Y. Taxpayers Mut. Ins. Assn., 305 N. Y. 243; Wenig v. Glens Falls Ind. Co., 294 N. Y. 195; Goldstein v. Standard Acc.

      Ins. Co., 236 N. Y. 178; Hewitt Pharmacies v. Ætna Life Ins. Co., 267 N. Y. 31; Weil v. Globe Ind. Co., 179 App. Div. 166.)

      John Nielsen and George S. Pichwich for respondent.
    Greaves is entitled to coverage under the automobile policy issued to Davis by Public Service. (Morgan v. Greater N. Y. Taxpayers Mut. Ins. Assn., 305 N. Y. 243; Standard Sur. & Cas. Co. v. Maryland Cas. Co., 281 App. Div. 446, 281 App. Div. 1069; American Sur. Co. v. Diamond, 1 N Y 2d 594; Wenig v. Glens Falls Ind. Co., 294 N. Y. 195; Ætna Cas. & Sur. Co. v. General Cas. Co., 285 App. Div. 767; Catania v. Hartford Ind. Co., 4 A D 2d 440; Manhattan Cas. Co. v. Cholahis, 206 Misc. 287, 284 App. Div. 1041.)
   Desmond, J.

On February 15, 1955 defendant-respondent Watson, an employee of L. Davis Trucking Co. (not a party here), was injured while working for Davis at the New York City warehouse of defendant-respondent Bigelow-Sanford Carpet Company, Inc. Greaves, who is the plaintiff-respondent in this declaratory judgment suit, was, as an employee of Bigelow-Sanford, operating a fork lift loading machine at Bigelow-Sanford’s warehouse. Defendant-respondent Watson drove his employer Davis’ truck to the Bigelow-Sanford warehouse to take on a load of carpeting. Watson then backed the Davis truck into the warehouse. Plaintiff Greaves, loading the carpeting onto the Watson-Davis truck with a fork lift machine, is alleged to have caused personal injuries to Watson. Watson claimed and received workmen’s compensation from the insurer of his employer Davis. Watson brought also a personal injury action against Bigelow-Sanford Carpet Company, Inc., and against present plaintiff Greaves. In that negligence action Bigelow-Sanford cross-complained against our present plaintiff Joseph Greaves. Greaves sent the summons and complaint to defendant-appellant Public Service Mutual Insurance Co. but that company refused to defend Greaves in the tort case asserting that its automobile liability policy hereafter described and issued to the injured Watson’s employer Davis did not insure Greaves.

Greaves then brought this declaratory judgment suit to have it adjudged that he is entitled to protection and coverage under the Public Service Mutual policy issued to the truck owner Davis, Public Service’s answer asserted two reasons why Greaves is not entitled to coverage. The first alleged reason is an exclusion stated in the policy as follows:

1 Exclusions.
“ This policy does not apply: (d) under coverage A, to sickness, disease or death of any employee of the insured while engaged in the employment, other than domestic, of the insured or in domestic employment if benefits therefor are either payable or required to be provided under any workmen’s compensation law; or to any obligation for which the insured or any company as his insurer may be held liable under any workmen’s compensation law.”

The position of the insurer is that the “ insured ” referred to in that exclusion is the named insured Davis and that, since the injured Watson was an employee of the named insured Davis, the policy does not apply since Watson was entitled to and did receive workmen’s compensation benefits. The position of Greaves is that although Davis was the named insured, nevertheless Greaves too was specifically made an insured under the policy which specifically includes in the meaning of the word “insured” the named insured and, also, “ any person while using the automobile * * * provided the actual use of the automobile is by the named insured or with his permission ”. Directly following that definition of “ insured ” in the policy is insuring agreement VII which states that “Use of the automobile for the purposes stated includes the loading and unloading thereof.” It is not disputed here that the present plaintiff Greaves was using this insured truck automobile for the ‘ ‘ loading ’ ’ thereof and so it is undisputed that he is an additional insured. The question, however, is whether the exception as to liability to an injured employee entitled to workmen’s compensation applies as to Greaves. The injured man Watson was of course an employee of the named insured Davis but was not an employee of the additional insured Greaves.

In its answer defendant set up another alleged bar to recovery consisting of the alleged failure of plaintiff to give written notice to defendant Public Service Mutual “ as soon as practicable ” as required by the policy. Special Term did not pass on this question since it defeated Greaves on the other ground. The Appellate Division, after holding that the ‘ ‘ workmen’s compensation ” exclusion did not apply to Greaves, held as to timeliness of notice that Greaves gave notice to the insurer as soon as he (Greaves) learned of the policy coverage and as soon as practicable In its appeal to this court defendant Public Service Mutual does not press the timely notice point and we consider it to be out of the case.

The Special Term in upholding the “ workmen’s compensation ’ ’ exception as a defense wrote an opinion in which the whole reliance was on Standard Sur. <& Cas. Co. v. Maryland Cas. Co. (281 App. Div. 446) decided by the Fourth Department in March, 1953. In that Standard Surety case the Appellate Division later granted leave to appeal to this court (281 App. Div. 1069) but the appeal was never argued here. Probably the appellant in Standard Surety dropped the appeal because of our decision a month later in Morgan v. Greater N. Y. Taxpayers Mut. Ins. Assn. (305 N. Y. 243).

In the present case the Appellate Division held that under the Morgan rule (supra) each individual additional insured although not named as an insured in the policy must be treated as if separately covered by the policy and indeed as if he (additional insured) had a separate policy of his own. In Morgan we said (p. 249): “ The proper view of the policy under consideration is that by it the defendant has undertaken separate and distinct obligations to the various assured, named and additional ”. The Appellate Division pointed out in its opinion here that the Morgan opinion in this court answers the contention made by appellant insurer here that such a construction gives greater protection to the additional insured than to the named insured. We said in the Morgan ease (p. 249) that this does not make any difference since the obligation of the insurer to the named insured on one hand, to the additional insured on the other, must be considered separately. As the Appellate Division here pointed out, the Morgan case itself shows how far we have extended this concept. In Morgan the policy covered liability for accidental injuries but an assault was thereunder to be deemed an accident unless committed by or at the direction of the insured. The named insureds in the policy were two individual owners of a building in New York City. While one of them was in Florida the other assaulted plaintiff. This court held that since the policy defined “ assured ” as including not only the named insureds but also any partner while acting as such, it was no defense to coverage against the assault claim that the assault had been committed by one named insured himself. We held in Morgan that the policy provisions made the nonassaulting partner, as partner, an additional insured although he had been named therein individually only, and that since he was liable as a partner for the assault he as an additional insured was covered by the policy. In other words, we held in Morgan, as the Appellate Division in the present case points out, that an additional although unnamed insured (Leventhal as partner) had to be treated as if he had a separate policy. The Appellate Division’s opinion here wrote that there is no essential difference between the present case and the Morgan case and with that we agree.

The Morgan case (supra) is in line with other reliable authorities such as Wenig v. Glens Falls Ind. Co. (294 N. Y. 195, 201), American Sur. Co. v. Diamond (1 N Y 2d 594, 599), Ætna Cas. & Sur. Co. v. General Cas. Co. (285 App. Div. 767, 770), Catania v. Hartford Ind. Co. (4 A D 2d 440, 441), Sandstrom v. Estate of Clausen (258 Wis. 534), and McMann v. Faulstich (259 Wis. 7). Each of these decisions goes on the theory that the controversy is to be resolved as if the policy had been issued to the unnamed insured alone.

As against all this, appellant’s theory is that the word ‘ ‘ insured ’ ’ in the exclusion clause above quoted in the policy means the named insured and plaintiff Greaves jointly or as if those two were one. We find no such meaning in the policy. We will keep in mind that this policy was written by the insurer and any ambiguity is to be resolved against it. If the intent was to exclude liability to any injured person who was covered by any workmen’s compensation insurance it would have been easy to say so. Treating Greaves as a separate insured, the exclusionary clause has no effect as to him since the injured man was not an “ employee of the insured ” Greaves and the “ insured ” Greaves was not liable to the injured man “ under any workmen’s compensation law ’ ’.

The judgment should be affirmed, with costs to plaintiff-respondent.

Chief Judge Conway and Judges Dye, Fuld, Fboessel, Van Voobhis and Bttbke concur.

Judgment affirmed.


source: Caselaw Access Project

author: Desmond, J. Van Voorhis, J. (concurring).

license: Public Domain

text:
    The People of the State of New York, Appellant, v. Leon F. Dusing, Respondent.
    Argued October 8, 1958;
    decided January 8, 1959.

      Anthony Manguso, Corporation Counsel (Joseph M. Casey of counsel), for appellant.
    Defendant’s guilt was established beyond a reasonable doubt. (People v. Magri, 3 N Y 2d 562; People v. Heyser, 2 N Y 2d 390; State of New Jersey v. Dantonio, 18 N. J. 570.)

      John C. Ward for respondent.
    I. The evidence produced concerning the reading of the radar instrument was not competent and accurate. (People v. Magri, 3 N Y 2d 562; People v. Hey ser, 2 N Y 2d 390.) II. The testimony of Officer O’Brien and Officer Conrad as to their personal observations and estimates of speed was not competent and sufficient to prove beyond a reasonable doubt the guilt of defendant. III. There is no evidence that a speeding violation occurred.
   Desmond, J.

Defendant’s conviction in City Court of Buffalo on an automobile speeding charge (Buffalo City Ordinances, oh. 60, § 14, subd. 3) was reversed by an order which, since it does not specify “ on the law ” or “on the facts ”, must be considered a reversal on the law alone (Code Crim. Pro., § 543-a, subd. 4). The appellate court in its opinion rejected as insufficient the two types of proof offered to prove speeding. The proof of a radar reading was ruled out because, although there was some showing of a test of the radar equipment, there was no indication that the automobile speedometer against which the radar reading had been checked was itself accurate. The other proof of speeding came from two admittedly experienced and qualified police officers who from separate positions had observed defendant’s oncoming automobile. This proof also the appellate court refused to consider since, so the court held, the officers had insufficient time and opportunity to judge the rate of speed at which defendant’s car was moving.

We think this reversal on the law was improper. In People v. Magri (3 N Y 2d 562, 566) we officially recognized “the general reliability of the radar speedmeter as a device for measuring the speed of a moving vehicle ”. The accuracy of the particular piece of radar equipment used in the Magri case had, however, not been tested (or, rather, the results of the tests were not proven). For that reason we held in accordance with People v. Heyser (2 NY 2d 390) that the radar record of Magri’s speed was not of itself sufficient proof of the speeding charge. But we upheld the Magri conviction nonetheless since there was there as in the present case additional competent proof in “ the testimony of the two qualified and experienced police officers, who had adequate opportunity to observe defendant’s vehicle as it approached the radar car ” (Magri opinion, 3 N Y 2d 567).

Another recent decision pertinent here is People v. Marsellus (2 N Y 2d 653, 655). The proof against Marsellus consisted of the opinion of the arresting policeman plus that officer’s testimony as to a reading taken from his police car speedometer which had been tested some weeks before against a ‘ ‘ master speedometer ” which itself had not been otherwise tested. In Marsellus we applied the Heyser case, (supra) ruling that “ evidence as to what even an untested speedometer showed was admissible.” The sum of the combined Magri, Heyser and Marsellus holdings is: first, that a reading from an untested speedometer or radar device is admissible but is not without more sufficient for a speeding conviction; and, second, that the resulting deficiency in proof can be supplied by the testimony of qualified observers.

As to' the appellate court’s holding in this case that as matter of law neither of the policemen had adequate opportunity to check the speed of defendant’s car approaching from their rear, we point again to the contrary holdings in People v. Heyser and People v. Magri (supra). The “ opportunity ” for observation by these officers was about the same as in the Magri situation. The relative positions of the policemen and the approaching car, as well as the time available for looking, etc., were factors going to the weight of the officers’ opinion testimony. But the testimony itself was not as matter of law inadmissible.

Admissibility and weight of opinion evidence and measuring device evidence in speeding cases is governed by the same rules applied in other types of eases. Qualified individuals at appropriate observation posts have always been allowed to state opinions as to speed (Fisher v. Union Ry. Co., 86 App. Div. 365; Salter v. Utica & Black Riv. R. R. Co., 59 N. Y. 631; Senecal v. Drollette, 304 N. Y. 446, 448). Radar and speedometer readings are generally admissible and may be sufficient in themselves if there be reasonable proof of their accuracy.

The order appealed from should be reversed and the case remitted to Supreme Court, Erie County, for determination of the questions of fact raised in that court (Code Grim. Pro.. § 543-b).

Van Voorhis, J. (concurring).

According to the testimony in this case defendant-respondent’s speed was checked by radar, which showed that he was driving at 41 miles per hour, in excess of the speed limit of 30 miles per hour. No objection was taken at the trial to the introduction into evidence of this measurement of his speed by the radar speedmeter upon the ground that its accuracy had not been proved. Radar and ordinary speedometers are commonly used to check the speed of automobiles. If appropriate objection had been made to the introduction of this evidence, the People would have been put on notice that they had to have evidence available of tests showing that this device measured speed accurately, and an adjournment might have been taken, if necessary, in order to obtain it. It seems to me to be too late for respondent now to raise the accuracy of the radar when he did not insist upon proof of its accuracy being given at the trial. The result might be different if speedometers and radar were not in such common use for this purpose. In Ford v. Snook (205 App. Div. 194, 198, affd. 240 N. Y. 624), it was said at the Appellate Division concerning hearsay testimony: ‘ ‘ Evidence, though not competent, received without objection may be relied upon to establish a fact in controversy. (Flora v. Carbean, 38 N. Y. 111; Crane v. Powell, 139 id. 379.) ”, although its weight may be open to question. It is not always clear whether an objection is based on a rule of evidence or on one of substantive law (Higgs v. de Maziroff, 263 N. Y. 473, 477-478). In People v. Eurich (278 App. Div. 717, affd. 303 N. Y. 723), a village ordinance which was received in evidence without objection, was enforced although no preliminary evidence had been given that signs had been posted showing the speed limit as required by section 54 of the Vehicle and Traffic Law. If a timely objection had been made, it would have been necessary for the People to have introduced evidence of the posting of such signs before the defendant could have been convicted, but the conviction was allowed to stand in the absence of such an objection. Neither, in my view, should this conviction be reversed in view of the absence of objection to the introduction of the radar finding on the ground that the apparatus had not been tested and found to be accurate.

The part of the majority opinion with which I disagree is that which bases the confirmation of the conviction of this man for speeding on the visual observations of the two police officers concerning the speed of his automobile. The majority opinion infers, perhaps, that the officers’ opinions would not have been enough to convict respondent in the absence of the radar finding, but it states that the. radar would not have been enough without the opinions of these officers verifying its accuracy. In my view, if the officers’ opinions were not enough by themselves on which to convict, they are insufficient to establish the accuracy of the radar. I think that they were insufficient for either purpose.

If this opinion evidence was enough to prove the radar to have been accurate, there is no logical reason on account of which the officers’ estimates of the speed of the car would not have been sufficient in law on which to have based a conviction without any speedometer or radar reading.

It is important to public respect for the enforcement of the speed laws that the -speed of a motorist shall be checked by speedometer or radar before he can be convicted of speeding. That has been the almost universal custom of Police and Justices’ Courts, and it seems to me that departure from it should not be sanctioned by the Court of Appeals. We should not hold that the speed of an automobile in a prosecution of this nature can be established by the observations of eyewitnesses, no matter how expert they may be, unless the speed is checked by some mechanical or electrical device. Although there was a radar reading in this case, the reasoning of the majority opinion appears to render that unnecessary inasmuch as if mere opinions of the police officers are held to be enough to establish the accuracy of the radar apparatus, they would be sufficient by themselves to prove the speed of the automobile and sustain the conviction without radar or speedometer.

For this reason alone I dissented in People v. Heyser (2 N Y 2d 390), although being bound by that decision, I voted to affirm the conviction in People v. Magri (3 N Y 2d 562). Those decisions are not authority for affirming the conviction in the present case even on the basis of how fast the police officers thought respondent was driving, inasmuch as their testimony shows that they did not have sufficient opportunity to observe the speed of respondent’s automobile. Neither officer was following the automobile. One of the officers judged its speed merely by having seen it approaching in the rear view mirror, and the other officer viewed it head on as it approached from the opposite direction while it stopped within a distance of one tenth of a mile. Looking at an automobile in the rear view mirror or head on under those circumstances supplies an insufficient foundation for opinions concerning the speed of the vehicle. The opinion of the one officer that it was going 41 miles per hour and the opinion of the other that it was going 40 miles per hour are speculative.

Cases involving untested speedometers and radar apparatus should not arise. Any objections which could be made to the introduction of evidence concerning the readings of such apparatus would be simply and easily overcome by making regular tests and keeping records of the tests in the books of the police department by which the tests were made. The offer in evidence under section 374-a of the Civil Practice Act of such records indicating the routine testing of such devices would be all that is necessary. By giving attention to such simple procedures, the law enforcement agencies would eliminate technical objections, save embarrassment for them and others, and promote better understanding of the necessary procedures as well as public confidence in the correctness of convictions for speeding.

I concur in the disposition of the appeal which is directed by the majority opinion, but for the reason stated in this concurring opinion.

Chief Judge Conway and Judges Dye, Fuld, Froessel and Burke concur with Judge Desmond ; Judge Van Voorhis concurs in a separate opinion.

Order reversed, etc.


author: Froessel, J.

text:
    The People of the State of New York, Appellant, v. Harry Gross, Respondent.
    Argued November 10, 1958;
    decided January 8, 1959.

      Edward S. Silver, District Attorney (William I. Siegel of counsel), for appellant.
    I. There is direct conflict of authority between the Appellate Divisions of the First and Second Departments on the question of the finality of sentences of imprisonment to the New York City Penitentiary. (People ex rel. Kern v. Silberglitt, 3 A D 2d 996, 4 N Y 2d 59; People v. Gross, 5 A D 2d 878.) II. Our duty to the court requires us to state, as we do, that in our belief the court below correctly interpreted the effect of the opinions of this court in People ex rel. Kern v. Silberglitt (3 A D 2d 996, 4 N Y 2d 59). III. For clarity in the administration of the criminal law, it is respectfully prayed that the order of this court be accompanied by an opinion.

      Michael Kern for respondent.
    I. The court below properly interpreted the opinion of this court in People ex rel. Kern v. Silberglitt (3 A D 2d 996, 4 N Y 2d 59). II. We respectfully join in the request for clarification.
   Froessel, J.

Defendant was convicted of criminal contempt following his plea of guilty. The County Judge suspended sentence, and fixed a probationary period of one year. Thereafter, having found that defendant violated the terms of his probation, the Judge sentenced him to an indeterminate term in the New York City Penitentiary pursuant to article 7-A of the Correction Law.

It appears that defendant had filed a timely notice of appeal, but, instead of prosecuting it promptly, he subsequently instituted a habeas corpus proceeding, contending that the sentencing court, by reason of unequivocal statements allegedly constituting a judicial finding of incorrigibility, rendered itself powerless to sentence him to an indefinite penitentiary sentence under section 203 of the Correction Law. The Supreme Court dismissed the petition, and the Appellate Division, First Department, affirmed upon two grounds: (1) that the penitentiary sentence imposed raised an irrebuttable presumption that the court did not find the defendant incapable of being substantially benefited by a commitment to a correctional and reformatory institution, and that it is the sentence that controls and not the preliminary remarks of the sentencing Judge, despite any apparent inconsistency, and (2) defendant’s sole remedy was by way of appeal and the writ of habeas corpus was not available. (People ex rel. Kern v. Silberglitt, 3 A D 2d 996.)

Upon appeal to us we affirmed, by a divided court, said order of the Appellate Division upon the sole ground that habeas corpus did not lie to review such a sentence (People ex rel. Kern v. Silberglitt, 4 N Y 2d 59).

After our decision, defendant promptly prosecuted his then dormant appeal from the judgment of conviction, whereupon the Appellate Division, Second Department, reversed the conviction upon the ground that, since the sentencing court had made an unequivocal finding at the time of sentence that defendant could not be reformed, he should have been sentenced to a penal institution for not more than one year and, inasmuch as that time had expired, defendant was discharged (People v. Gross, 5 AD 2d 878).

These views having already been sufficiently expressed in the minority opinion when the case was before us on the former appeal, with which views there was no disagreement on the part of the majority, we need not reiterate them here.

The order appealed from should be affirmed.

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

Order affirmed.


author: Burke, J. Yak Voorhis, J. (dissenting).

text:
    John D. Tracy, Respondent, v. Newsday, Inc., et al, Appellants.
    Argued October 7, 1958;
    decided January 8, 1959.

      Andrew L. Hughes and James W. Rodgers for appellants.
    The references to plaintiff in the article are not libelous per se. The article is not susceptible to the innuendo pleaded by plaintiff. The complaint should be dismissed. (O’Connell v. Press Pub. Co., 214 N. Y. 352; Kimmerle v. New York Evening Journal, 262 N. Y. 99; Nichols v. Item Publishers, 309 N. Y. 596; Hays v. American Defense Soc., 252 N. Y. 266; Gurtler v. Union

      Parts Mfg. Co., 285 App. Div. 643, 1 N Y 2d 5; Denis v. Reynolds Tobacco Co., 279 App. Div. 78, 303 N. Y. 985; Barringer v. Sun Print. & Pub. Assn., 160 App. Div. 691; Smith v. Staten Is. Advance Co., 194 Misc. 299, 276 App. Div. 978; Julian v. American Business Consultants, 2 N Y 2d 1; Moore v. Francis, 121 N. Y. 199; Crane v. New York World Tel. Corp., 308 N. Y. 470; Cafferty v. Southern Tier Pub. Co., 226 N. Y. 87; More v. Bennett, 48 N. Y. 472; First Nat. Bank v. Winters, 225 N. Y. 47.)

      Louis Jay Brecher and Maurice Freiman for respondent.
    The Appellate Division properly reversed the order and judgment of Special Term dismissing plaintiff’s complaint. The complaint states a cause of action. (Mencher v. Chesley, 297 N. Y. 94; Dall v. Time, Inc., 252 App. Div. 636; Triggs v. Sun Print. & Pub. Assn., 179 N. Y. 144; Julian v. American Business Consultants, 2 N Y 2d 1.)
   Burke, J.

One Ivan Jerome, who was required to stand trial for various sex offenses, failed to appear on the appointed day and forfeited his bail. On the following day the allegedly defamatory article appeared in the defendant’s paper, Newsday. Respondent sues for libel claiming* that the article identifies him as the man who aided Jerome “ in jumping his bail and assisted him to escape the consequences of his alleged criminal actions.” He avers that the statements are false and that as a result he has been held up to public contempt, disgrace and ridicule and has been irreparably injured in his calling as a police instructor and criminologist.

After reversing a judgment of Special Term, which dismissed the complaint, the Appellate Division certified the following question for our review: ‘ ‘ Does the complaint state a cause of action? ”

Unless we find the statements in the article to be nonlibelous as a matter of law, the question must be answered in the affirmative (Balabanoff v. Hearst Cons. Pub., 294 N. Y. 351).

. The general rule, as we stated in Nicholas v. Item Publishers (309 N. Y. 596, 600-601), is that ‘“A writing is defamatory'— that is, actionable without allegation or proof of special damage—if it tends to expose a person to hatred, contempt or aversion, or to induce an evil or unsavory opinion of him in the minds of a substantial number in the community, even though it may impute no moral turpitude to him And to that listing of the defamatory should he added a writing which tends to disparage a person in the way of his office, profession or trade.”

It is for the court, however, to decide whether a publication is capable of the meaning ascribed to it. (Crane v. New York World Tel. Corp., 308 N. Y. 470, 479-480; Julian v. American Business Consultants, 2 N Y 2d 1, 14.) The canons are well known that where the words are clear and plain, the court must determine whether they are libelous or nonlibelous; and whether the innuendo is necessary. (O’Connell v. Press. Pub. Corp., 214 N. Y. 352; Morrison v. Smith, 177 N. Y. 366; Seelman, Law of Libel and Slander in New York, par. 436, p. 426.) The admitted purpose of an innuendo is to explain matter that is insufficiently expressed. Its office is to point out the libelous meaning of the words used. If the article is not susceptible of a libelous meaning, then innuendo cannot make it libelous. In Fry v. Bennett (5 Sandf. 54, 65) the court stated the rule in this manner: In brief, the question which an innuendo raises, is, in all cases, a question not of fact, but of logic. It is, simply, whether the explanation given is a legitimate conclusion from the premise stated; and to determine this question, must be, in all cases, the exclusive province of the court ’ ’. (See, also, Seelman, op. cit., supra, pars. 421, 430; Hays v. American Defense Soc., 252 N. Y. 266; O’Connell v. Press Pub. Corp., supra.) The innuendo, therefore, may not enlarge upon the meaning of words .so as to convey a meaning that is not expressed (Gurtler v. Union Parts Mfg. Co., 285 App. Div. 643, 644-645, affd. 1 N Y 2d 5).

The solution of the legal question always depends on the particular phraseology used in the purported libelous statement. The article in issue here relates the details of the Jerome case from the time of the discovery of the sex offenses to his failure to appear in court for trial. The article then proceeds to give an account of Jerome’s activities just prior to his disappearance. After reporting that Jerome checked into a small hotel on the upper east side of New York City under an assumed name about six weeks prior to his disappearance, the relevant parts of the article read as follows:

1 ‘ Last Thursday a clerk saw a strange man help Jerome carrying his luggage out of the Hotel. The stranger was identified by police as John D. Tracy, a former New York City policeman who had been hired by Roekmore as an investigator to aid in Jerome’s case. * * *
“ Police were unable to learn where Jerome and Tracy took the luggage. But the next day, Jerome, Roekmore, and Tracy showed up at Murray’s New York office at 3 PM for a conference on the upcoming trial. Murray said he had been in daily phone contact with Jerome. * * *
11 After the meeting with Murray, police learned Rock-more and Jerome parted company with Tracy and left for Roekmore’s New York office. Roekmore believes that he was the last person to see Jerome. * * *
The last person to hear from Jerome before he vanished was Tracy. He said Jerome phoned him Friday evening to cancel an appointment they had made to go to court together Monday. Jerome explained he had made other arrangements.”

Standing alone these statements obviously are not defamatory. Respondent, however, relies on the innuendo pleaded in the complaint to draw a libelous meaning from the article.

Applying the cited principles of law to the construction of the statement urged on us by respondent, we are constrained to agree with Special Term that “ The pleaded innuendo is strained, unreasonable and unjustified ”. It does not explain any statement in the article, but adds an entirely new and independent thought that finds no support in the article.

The article, of course, must be read as a whole and the words and phrases must be construed together in context. (Julian v. American Business Consultants, supra.) Reading the article before us reasonably and taking the words in their natural import, we find that it is unfair to conclude that the article either states or implies anything that could subject the respondent to contempt, aversion or induce any unsavory opinion or affect him in his calling as a criminologist or police instructor. It is a chronological account of the activities of Jerome and his legal staff during a four-day period. The statements of Roekmore, one of Jerome’s attorneys, and of respondent, Tracy, given in answer to inquiries by the police and accurately reported in the paper, readily negate the interpretation the respondent seeks to read into the report. The article does not suggest that Jerome received assistance or advice in connection with his failure to appear at the trial. The fact that respondent contends that he did not assist Jerome with his luggage merely demonstrates the falsity of the statement, not that it is defamatory. Though the report may be false and probably offensive, it is not actionable. (See Nichols v. Item Publishers, 309 N. Y. 596, 601, 602, supra; Prosser on Torts [2d ed., 1955], p. 575; 1 Harper and James, Torts [1956], p. 349.) The statement that Tracy had assisted a client in carrying luggage out of a hotel several days before the trial, in the light of the further reports that ‘ ‘ Rockmore believes he was the last person to see Jerome” and “He [Tracy] said Jerome phoned him Friday evening to cancel an appointment they had made to go to court together Monday” because as “Jerome explained he had made other arrangements ”, is not susceptible of the meaning read into it by respondent.

Since there is no basis in fact nor tenable position in law to support the alleged innuendo, the article may not be regarded as defamatory of the respondent under any fair construction. The question certified, therefore, is answered in the negative and the order of the Appellate Division reversed and the judgment of Special Term reinstated.

Yak Voorhis, J. (dissenting).

In our view the news article contained in the complaint is defamatory as matter of law, or, at the least, could be found to be defamatory by a jury. It concerns the disappearance of a man named Ivan Jerome who is a fugitive from justice, having forfeited his bail instead of appearing to stand trial for certain widely publicized sex offenses. The natural meaning of this article is, as we read it, that plaintiff is charged with having helped Jerome to escape. That is the inference which would normally be drawn from this news item by the average person. After stating that Jerome had been living for about six weeks in a hotel in New York City under an assumed name, the article continues:

‘‘ Last Thursday a clerk saw a strange man help Jerome carrying his luggage out of the Hotel. The stranger was identified by police as John D. Tracy, a former New York City policeman who had been hired by Bockmore' as an investigator to aid in Jerome’s case.
“ ‘ Are you planning to check out? ’ police quoted the clerk as asking Jerome.
“ ‘ I might be called away, ’ Jerome was said to have replied, and left a small package with the clerk. Nassau detectives who examined it yesterday said it contained only a few shirts and other articles of clothing.
“ Police were unable to learn where Jerome and Tracy took the luggage. But the next day, Jerome, Bock-more, and Tracy showed up at Murray’s New York office at 3 PM for a conference on the upcoming trial. Murray said he had been in daily phone contact with Jerome. * * *
“ After the meeting with Murray, police learned, Bock-more and Jerome parted company with Tracy and left for Bockmore’s New York office. Bockmore believes he was the last person to see Jerome * * *.
“The last person to hear from Jerome before he vanished was Tracy. He said Jerome phoned him Friday evening to cancel an appointment they had made to go to court together Monday. Jerome explained he had made other arrangements.”

The majority of the court regard these words, we think, in so restricted and literal a sense as to lose sight of the meaning which the author conveys to the man in the street. Such construction is to be put upon its language as would naturally be given to it by the reading public acquainted with the parties and the subject matter (Sydney v. MacFadden Newspaper Pub. Co., 242 N. Y. 208-214). “Judges and jurors now read the words in court, as they would read them elsewhere; they no longer resort to those constructions which make that language innocent in the halls of justice, which was full of calumny when spoken or published out of door.” (Turrill v. Dolloway, 17 Wend. 426, 428, revd. on other grounds sub nom. Dolloway v. Turrill, 26 Wend. 383.)

“ The publisher of a libel cannot escape liability by veiling a calumny under artful or ambiguous phrases, or by indirectly charging that which would be slanderous, if imputed in direct and undisguised language.” (Sanderson v. Caldwell, 45 N. Y. 398, 401.)

The newsworthiness of this account did not consist in whether Jerome carried his own luggage or whether someone else carried it for him. The public was not interested in whether he tipped a bellboy to carry his bags out of the hotel, or in who the bellboy was if he did. But if mention of these trifling circumstances might be used to reveal who helped Jerome get out of the clutches of the law, and to disclose that it was a former New York City policeman who had been hired as an investigator to aid in Jerome’s case, that was news. It would have been news whether it were reported that plaintiff carried Jerome’s luggage, or drove his automobile, or did anything else connected with Jerome’s departure symbolizing that he helped Jerome to jump bail. In modern journalese carrying Jerome’s luggage out of the hotel is just a combination of words to symbolize aiding in his escape. Words are symbols at most. Unquestionably it would have been libelous to have said that plaintiff co-operated with Jerome in enabling him to elude criminal prosecution. If a newswriter can invent another phrase which means the same thing in the context in which it is used, we fail to understand on what principle it ceases to be defamatory. If this language did not mean that, the article was not worth publishing. Nobody cared who carried Jerome’s luggage if that is all that was being discussed. When the hotel clerk asked if Jerome was checking out, he replied that he might be called away. So the reader is told, in effect, that plaintiff knew that Jerome was planning not to return.

The next highlight in the article is that ‘ ‘ Police were unable to learn where Jerome and Tracy took the luggage.” This expressed that the disappearance of the luggage became a matter of concern to the police, and implied that plaintiff helped Jerome to hide it where the police could not trace it. The police would not have been interested, the reader is led to assume, unless there was something sinister about the concealment of Jerome’s equipment for traveling. The reason why the police were interested is not far to seek. It is, as anyone reading the article is readily informed, that the mystery of Jerome’s disappearance is involved in the disappearance of his luggage. The reader is told that plaintiff helped to create this mystery which baffled the police. A relationship was indicated between this and the circumstance that “ The last person to hear from Jerome before he vanished was Tracy.” The result might be different if this were an objective account of the circumstantial evidence in a criminal case, leaving the conclusion to the reader to draw who the culprit might have been. That is not what this article purports to be. The few ■ trivial circumstances that are enumerated furnish no basis for an independent analysis of what occurred, but are used as a vehicle to convey the writer’s thinly veiled conclusion that plaintiff is the guilty man who effectively helped Jerome to get away.

A charge that plaintiff had assisted the defendant in a sensational criminal case to break the law by jumping bail would have been serious enough, even if plaintiff had not been described as a former New York City policeman. Unless plaintiff conspired to do this, which, for present purposes, we must assume he did not, the article was a libel against plaintiff, couched in language which the reading public could not fail to understand. It is a literary technique by which the writer “without sneering” aims to “teach the rest to sneer” as Alexander Pope knew and said.

Even if this news item be not libelous as matter of law, as we think it was, it at least contains a basis for the innuendoes pleaded in the complaint, and under circumstances such that its construction is a question for a jury (Mencher v. Chesley, 297 N. Y. 94; Katapodis v. Brooklyn Spectator, 287 N. Y. 17; Hoeppner v. Dunkirk Print. Co., 254 N. Y. 95, 105; First Nat. Bank v. Winters, 225 N. Y. 47, 50; Morrison v. Smith, 177 N. Y. 366, 369; Moore v. Francis, 121 N. Y. 199, 202-203; Cassidy v. Gannett Co., 173 Misc. 634).

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

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

Order of Appellate Division reversed and judgment of Special Term reinstated, with costs in this court and in the Appellate Division. Question certified answered in the negative.


author: Fuld, J.

text:
    The People of the State of New York, Respondent, v. Gladys Irrizari, Appellant.
    Argued October 15, 1958;
    decided January 8, 1959.

      Maurice Edelbaum and Chester E. Kleinberg for appellant.
    I. Errors in the court’s charge denied defendant a fair trial. (People v. Radcliffe, 232 N. Y. 249.) II. The People failed to establish the value of the merchandise allegedly stolen by the testimony of witnesses truly competent to fix value. III. An inference against the prosecution may be drawn from the failure to call an available witness shown to have knowledge of facts relevant to the charges being tried. (People v. Raizen, 211 App. Div. 446; People v. Ferguson, 245 App. Div. 837.) IY. “ Market value ” as used in section 1305 of the Penal Law has never been defined either by the Legislature or the courts of New York. (Albrecht & Son v. Landy, 27 F. Supp. 65; People ex rel. New York Cent. R. R. Co. v. Thompson, 156 Misc. 536; Beardsley v. Nieblo Mfg. Co., 231 App. Div. 152; Wehle v. Haviland, 69 N. Y. 448; People v. Rupoli, 303 N. Y. 595.)

      Frank A. Gulotta, District Attorney (Henry P. De Vine of counsel), for respondent.
    I. G-uilt was established beyond a reasonable doubt. (People v. Galbo, 218 N. Y. 283.) II. Market value is selling price. (People v. Rupoli, 303 N. Y. 595; People v. Geyer, 196 N. Y. 364; People v. Barry, 132 App. Div. 231, 196 N. Y. 507; People v. Lovejoy, 37 App. Div. 52; People v. Peckens, 153 N. Y. 576; People v. Freiman, 132 Misc. 554; Sloan v. Baird, 162 N. Y. 327; Wehle v. Haviland, 69 N. Y. 448; State v. Mall, 112 Kan. 63; Robinson v. State, 107 Neb. 591; Fugate v. State, 80 Okla. Cr. 200; Cowan v. Arkansas, 171 Ark. 1018; Woods v. People, 222 Ill. 293; Clark v. State, 14 Okla. Cr. 284.) III. The charge fully and completely defined reasonable doubt. (People v. Radcliffe, 232 N. Y. 249.) IY. The People did not refuse to call necessary witnesses unavailable to defendant. (People v. Kilroe, 201 App. Div. 549; People v. Dyle, 21 N. Y. 578; People v. Hovey, 92 N. Y. 554; People v. Slover, 232 N. Y. 264.)
   Fuld, J.

On August 17, 1955, wearing apparel was stolen from the stores of B. Altman & Co., Lord & Taylor and Best & Co., all located in Manhasset, Long Island. The defendant was charged, in an indictment containing three counts, with grand larceny in the second degree, the theft from each store being the subject of a different count in recognition of the manifest fact that each taking constituted a different larceny. The defendant actually admitted that she had stolen the clothing from Altman’s and, although she denied complicity in the other thefts, the evidence establishes almost beyond all doubt that she was equally guilty of the takings from Lord & Taylor’s and Best’s as well, and the jury returned a verdict of guilt on each count. Sentences imposed in connection with each count were to run concurrently.

Of the several points advanced by the defendant, all of which have been considered, only one, that involving the value of the stolen articles, merits discussion. The evidence on the subject was fairly brief. The wholesale price of each of the two suits stolen from Altman’s was $57, the retail price $95. Of the four suits taken from Lord & Taylor’s, the wholesale cost of one was $57, its retail price $95; each of two others had a wholesale price of $63 and a retail price of $110; and the fourth was priced at $69 wholesale and $125 retail. Of each of two of the items stolen from Best’s, the wholesale cost was $39.95 and of the third $35; the respective retail prices for these articles were $69.95 and $59.95.

The trial court, after noting that the dividing line between grand and petit larceny was $100, told the jury that the defendant could be convicted of grand larceny in the second degree only if the value of the property stolen exceeded that sum. As to the meaning of ‘ value, ’ ’ the court charged that ‘ ‘ the market value of the thing stolen is deemed its value ” and that such market value was to be determined ‘ ‘ by considering what that garment would bring on the market under selling circumstances and conditions similar to those of the owners in this case.” And, added the court, in arriving at their conclusion, the jurors were to consider the 1 ‘ wholesale value of the garments * * * the prices paid by the owners, * * * the price [sic] at which the owners sold similar garments, * * * the price [sic] at which owners similarly situated under similar eircumstances and under similar conditions sold similar garments, and also * * * prices ordinarily paid by customers for similar garments.” As is evident, the court thus permitted the jury to take into account both the wholesale price, that is, what the victim store paid for the articles, and the retail price, that is, what the store would have realized from their sale. If it was improper for the jury to consider retail price, the defendant has a grievance, for such price was considerably higher than the amount paid by the store to its wholesaler; had the jury been instructed that wholesale price was the only item to be considered in arriving at value, it might have concluded— though, we note, it would have been contrary to the evidence — that the goods were worth less than $100.

‘ ‘ In every case not otherwise regulated by statute, ’ ’ section 1305 of the Penal Law recites, “ the market value of the thing stolen is deemed its value.” The question for resolution — and it has not heretofore been decided by this court (see People v. Rupoli, 303 N. Y. 595, 597) —concerns the meaning of the term ‘ market value ’ ’: where the theft is from a department store, does it signify value in the retail market or, as the defendant urges, the cost of replacement or wholesale value? In other words, is the market value to be determined by the value in the market in which the thief would have had to purchase the goods or the value in the market in which the owner would have had to replace them?

In addition to section 1305, there are two other provisions concerned with the value of stolen articles, and from a consideration of them a clear and definite legislative scheme emerges. Section 1303 of the Penal Law defines the value of a stolen evidence of debt as the amount ‘1 due ’ ’ upon it at the time of the theft and section 1304, the value of a stolen passage ticket as the “ price ” at which it “ is usually sold”; if, therefore, a thief steals tickets from a railroad company, their value will be not their replacement cost to the company, or even the cost of the service, but the amount which the thief would have been required to pay for them had he purchased them, that is, their retail value. Thus, reading section 1305 together with the other sections, it becomes apparent that the Legislature, in setting up value as the measure of the gravity of the larcenous act, rejected replacement cost to the owner and fixed the value at the amount which the thief would have had to pay had he purchased the goods instead of stealing them. •

While cost of replacement, or value in the wholesale market, is an item to be reckoned with in fixing value in the retail market, it is obvious that neither cost nor wholesale value may be adopted as the appropriate measure where ,tb.e larceny is from a department store. To accept wholesale value in such a case would be to ignore the facts of economic life. Stated very simply, it is the retailer’s function in our economy to move goods to the consuming public and, in the process, the market value of the goods is unquestionably enhanced. In addition, the retailer expends money on various services—including advertising, promoting, display and packaging—in order to increase the interest of the public and make it more willing to buy. When, therefore, a thief steals an article from a department store, he steals something having a market value quite different from that which it had in the hands of the wholesaler.

In short, market value, as the term is used in section 1305, denotes not the value of the goods in the market in which the owner had purchased them or in which he could replace them, but the value in the market in which the goods were being traded, namely, the price at which they would probably have been sold in the regular course of business at the time when and the place where they were stolen. And so, we note, the courts have held in a number of other jurisdictions where market value is likewise the criterion for determining the value of stolen property. (See State v. Mall, 112 Kan. 63, 65; Robinson v. State, 107 Neb. 591, 592-593; Hoffman v. State, 24 Okla. Cr. 236, 246; see, also, Hughes v. State, 33 Ariz. 23, 25-27; Woods v. People, 222 Ill. 293, 302; People v. Gilbert, 163 Mich. 511, 512; State v. Doepke, 68 Mo. 208, 213-214; State v. McComas, 89 Mont. 187, 193; Fugate v. State, 80 Okla. Cr. 200, 206-207; Keipp v. State, 51 Tex. Cr. 417, 419; State v. Boswell, 107 W. Va. 213, 215.)

Where, then, the property is stolen from a department store, the price at which it is there listed ordinarily reflects its market value. We do not, of course, mean to imply that such price is necessarily conclusive. The vital finding which the jury must make is the price at which the property would have been sold if it had not been stolen, and any evidence bearing on that question may properly be considered. It would be open to the accused to show, for instance, that the list price was much higher than the price being paid for similar merchandise in the vicinity, for such evidence bears on whether the goods would actually have found buyers at list price even in the store from which they had been taken.

In the case before us, however, no such qualifying circumstances were presented, and it would have been sufficient had the trial judge simply charged the jury to consider the prices at which the stolen garments were listed for sale. The judge’s references to “wholesale value ” should have been omitted, but they could not have reacted to the defendant’s prejudice. On the contrary, as is clear from what we have written, the instructions with respect to market value were far more favorable to her than the law required.

The judgment of conviction should be affirmed.

Chief Judge Conway and Judges Desmond, Dye, Fbobssel, Van Voobhis and Bubkb concur.

Judgment affirmed.


text:
    In the Matter of Lee J. Behringer, Respondent, against Angela R. Parisi, as Chairman of the Workmen’s Compensation Board of the State of New York, Appellant, et al., Respondents.
    Argued October 15, 1958;
    decided January 8, 1959.

      Jack Goodman for appellant.
    I. The doctrines of independent officer and deputy must be distinguished. (Heath v. Creagh, 197 Misc. 537, 276 App. Div. 948; Matter of Byrnes v. Windels, 265 N. Y. 403; Matter of O’Day v. Yeager, 308 N. Y. 580; Matter of Mylod v. Graves, 274 N. Y. 381.) II. If the position is one to which the statute authorizes the delegation of the statutory powers or duties of independent officers, that position is the position of a deputy within the meaning of subdivision 1 of section 22 of the Civil Service Law. (Matter of Erikson v. Helfand, 1 A D 2d 59, 1 N Y 2d 775; Matter of Byrnes v. Windels, 265 N. Y. 403; Matter of Rohr v. Kenngott, 288 N. Y. 97; People ex rel. Hoefle v. Cahill, 188 N. Y. 489; Matter of O’Day v. Yeager, 284 App. Div. 754, 308 N. Y. 580; Heath v. Creagh, 197 Misc. 537, 276 App. Div. 948.) III. The Workmen’s Compensation Law authorizes the delegation of the powers and duties of the Chairman of the Workmen’s Compensation Board to the position of District Administrator. IV. The provision that the District Administrator shall exercise his powers and duties ‘ ‘ under the general direction of the Administrative Deputy ” does not prevent the position of District Administrator from being one of deputy. V. There is no need for any trial to resolve any issues of fact which appear to be raised by the pleadings.

      John J. Kelly, Jr., for Lee J. Behringer, respondent.
    I. The position of District Administrator is a subordinate position, is not an independent office, and, as a matter of law, is not a “deputy”. (Heath v. Creagh, 197 Misc. 537, 276 App. Div. 948; Matter of Erikson v. Helfand, 1 A D 2d 59, 1 N Y 2d 775; Matter of Byrnes v. Windels, 265 N. Y. 403; Matter of Steen v. County of Nassau, 179 Misc. 821, 265 App. Div. 858.) II. As a matter of fact, the position of District Administrator could not be a “ deputy ”. (Matter of Mercer v. Dowd, 288 N. Y. 381.)
   Froessel, J.

The issue before us on this appeal is whether petitioner is a “ deputy ” within the meaning of subdivision 1 of section 22 of the Civil Service Law, which prohibits the summary removal without cause of veterans of the armed forces (among others) from civil service positions, but which excepts from the operation of the section “the position of private secretary, cashier or deputy of any official or department” (emphasis supplied).

On December 1,1953 the predecessor of respondent-appellant, Chairman of the Workmen’s Compensation Board, appointed petitioner, an honorably discharged veteran of World War II, as permanent incumbent of the position of District Administrator of the Albany District of the board, classified in the exempt class. On March 22, 1957 respondent-appellant (hereinafter called respondent) summarily removed petitioner from this position. Thereupon petitioner commenced this article 78 proceeding for an order of reinstatement on the ground that subdivision 1 of section 22 of the Civil Service Law prohibited his removal without a hearing on "written charges of incompetency or misconduct.

The petition for reinstatement was opposed on the ground that petitioner was a “deputy” within the meaning of the legislative exception contained in the proviso of subdivision 1 of section 22, and thus not entitled to its protection. It is conceded that the position of District Administrator is not an 1 ‘ independent office ’ ’, a judicially created exception to the protective coverage of subdivision 1 of section 22.

Petitioner’s principal contention, in brief, is that to be a “ deputy ” within the meaning of subdivision 1 of section 22 it is necessary (1) that the position be named or specifically prescribed in a statute, and (2) that the duties of the position be prescribed by statute. Since the position of District Administrator is not specifically named in the Workmen’s Compensation Law, or any other 'statute, and inasmuch as there is no statutory delineation of' the duties of such position, he argues that, as a matter of law, he cannot be a “deputy”. He further contends that even if a District Administrator is legally capable of being a ‘ deputy ’ ’, the nature of his duties is such that he cannot be said to be a “ deputy ” in this case.

Respondent, on the other hand, contends that the language of section 152 of the Workmen’s Compensation Law, which authorizes her as Chairman of the board to delegate her administrative powers and duties to “the head of any bureau or section of the board”, is sufficient authority for the creation of “deputies”, and that by delegating certain powers and duties, enumerated in paragraphs fifteenth to thirty-third of her answer, to petitioner as one of her District Administrators, she constituted him a “deputy” within the meaning of subdivision 1 of section 22.

Special Term ruled in favor of petitioner, concluding that “neither by legislative title nor by lawful authority, vested in his position by statute or otherwise, is [petitioner] a deputy or independent officer”. In affirming, the majority of the Appellate Division emphasized that District Administrators were ‘ subordinate employees ’ ’ and relied, among other things, on the fact that the language of section 152 was merely permissive and the delegation of duties revocable. Although the majority felt that there were some “‘fringe issues of fact involved ’ ”, it did not ‘ ‘ ‘ regard them as of decisive significance ’ ”, since the detailed description of the duties and responsibilities of the office of District Administrator, contained in the pleadings and exhibits attached thereto, showed conclusively ‘ ‘ that the position from which the petitioner was removed was a subordinate one whose duties were not prescribed by statute and petitioner could not be termed a ‘ deputy ’ within the meaning of section 22 of the Civil Service Law” (emphasis supplied).

For a position to be deemed that of “deputy”, it is not required that it be specifically named in a statute or that its duties be prescribed by statute. It is sufficient if a statute authorises the delegation of such type of duties as ordinarily would be exercised by one occupying a position of “ deputy ”. It is conceded in this case that petitioner was the “ head ” of the Albany office of the board and as such was the “ head ” of several “bureaus”. Although the Workmen’s Compensation Law does not name the position of District Administrator, such a position was clearly contemplated when, in section 152, the Chairman was authorized to delegate any of her administrative powers to “ the head of any bureau or section of the board”. In our opinion this is sufficient statutory language authorising the position of District Administrator, and said section 152 is also sufficient statutory authority, under the decisions of this court, for the creation of “ deputies ”.

As early as 1907, in interpreting the same proviso as is presently contained in subdivision 1 of section 22, we stated:

“We think that when the statute excepted from limitations upon the power to remove certain persons like relator the office of deputy, cashier or private secretary, it contemplates only positions brought within these excepted classes by the terms of the laws which created or authorized and defined them, or at the most positions ivhich under some sufficient authority at the discretion of the appointing or superior power have been invested with the ditties and character of one of the excepted positions.” (People ex rel. Hoefle v. Cahill, 188 N. Y. 489, 497-498; emphasis supplied.)

This language was quoted with approval in Matter of Byrnes v. Windels (265 N. Y. 403, 407). In Matter of Rohr v. Kenngott (288 N. Y. 97, 105), we held that the Legislature did not intend that rights of tenure to a position should be determined by the name given to the position ”. And in Heath v. Creagh (197 Misc. 537, 547, affd. 276 App. Div. 948), the court correctly stated:

‘ ‘ It is clear from the cases cited that in order to bring the petitioner’s position within the statutory concept of a deputy, the respondents must show that there was some statute making the petitioner a deputy with authority to take over and perform the duties vested in the principal officer or that there was a statute authorizing the principal officer to delegate his duties and thus to create a deputy ship.” (Emphasis supplied.)

The crux of the holding in that case—that the Deputy Director of Public Works for the City of Niagara Falls was not a 11 deputy ’ ’ within the meaning of subdivision 1 of section 22 — was that the statute did not authorize the Director of Public Works to delegate any of his statutory powers to his deputies; ‘ ‘ there was no statutory basis for this assignment of duties ’ ’ (p. 541).

The requirement that a statute create the position and delineate its duties is applicable, not to the category of “ deputy ”, but to the category of independent office ”, a judicially created exception to the operation of section 22. This was pointed out by our opinion in Matter of O’Day v. Yeager (308 N. Y. 580, 586) where, in attempting to formulate a general guide to aid in the determination of what persons were independent officers, we said: “ he is an independent officer whose position is created, and whose powers and duties are prescribed by statute and who exercises a high degree of initiative and independent judgment ”.

There is a distinct difference between the nature of the duties required to constitute a position one of 1 ‘ independent office ” and those requisite to a position of “ deputy”, and the failure to recognize that deputies, as opposed to independent officers, are subordinate employees is responsible, in large measure, for the determination of the majority in the Appellate Division. The very reason for the judicial creation of the exception of “ independent office ”, as stated in Matter of Mylod, v. Graves (274 N. Y. 381, 384), was that “ Section 22 of the Civil Service Law was intended to apply only to those holding positions of a subordinate nature” (emphasis supplied). It is the independent officer and not the “ deputy ” who exercises a high degree of initiative and independent judgment ”, and whose position and duties need be prescribed by statute.

Section 141 of the Workmen’s Compensation Law constitutes the Chairman the administrative head of the workmen’s compensation board ” and invests him with all the duties and powers of administration, formerly held by the Industrial Commissioner (L. 1921, ch. 50), as well as the duties specified elsewhere in the law. If we accept petitioner’s contention that a position, in order to be filled by a “ deputy ”, must be specifically named in the statute and defined as to duties, then the Chairman, charged with administering the Workmen’s Compensation Law throughout the entire State, involving, among other things, the processing of countless thousands of claims each year, is incapable of having deputies. We conclude that the statute, by authorizing the Chairman to delegate her powers of administration to the heads of bureaus and sections, provided for the creation of deputies.

Thus the only remaining question involved in this case is whether the Chairman invested petitioner, as one of her District Administrators, with enough of her administrative powers so as to constitute him a deputy in the exercise of the Chairman’s administrative functions. Prior to considering this question, however, it is necessary to ascribe some content to the term “ deputy ” as used in subdivision 1 of section 22. In this connection, in Matter of Byrnes v. Windels (supra, p. 407), where we held an Assistant Corporation Counsel was a deputy within the purview of subdivision 1 of section 22, we noted that the term “ deputy” was defined as “ one who is appointed, designated or deputed to act for another ’ ’ and that a deputy may he general or special. We further pointed out that the term ‘ ‘ deputy ’ ’ had different meanings within the Civil Service Law itself. Section 13 of the law, which states what positions are included in the exempt class, provides (stibd. 1): “ The deputies of principal executive officers authorized by law to act generally for and in place of their principals ”. We then commented as follows (p. 409):

1 ‘ That the classification of 1 deputy ’ in section 13, subdivision 1, is not intended to be a definition or limitation upon the use of the word throughout the entire act, is quite evident, when we see that the position of cashier or private secretary, if there be more than one, is not included in section 13, but is included in the exception to section 22. In other words, deputy,’ in this exception, may be broader in meaning than when used in subdivision 1 of section 13.” (Emphasis supplied.)

It is quite clear, then, that a 11 deputy ’ ’, within the meaning of subdivision 1 of section 22, like a cashier or private secretary, holds a position of a subordinate nature, and we recognized this in Matter of Mylod v. Graves (supra). To conclude that petitioner, as District Administrator, is a “ subordinate employee ’ ’ does not determine that he is not a “ deputy ”, as the opinions below seem to indicate, nor does it even aid in resolving the question. Rather, we must draw the line, as stated in Heath v. Creagh (supra, p. 543), “ between subordinates who are deputies within the meaning of the provision of section 22 here referred to and those who are not such deputies ”.

The inquiry as to whether a position is one of a subordinate nature is relevant only in distinguishing such positions from “independent offices ” (see Matter of O’Day v. Yeager, supra, p. 586). An indication that the majority of the Appellate Division failed to distinguish the category of ‘ ‘ independent office ’ ’ from that of “ deputy ” is their reliance on the fact that section 152 of the Workmen’s Compensation Law is permissive in that “ the chairman, at her pleasure, may delegate certain duties and likewise may revoke them at any time ”. This fact would be significant only in determining whether petitioner was an “ independent officer ”, and has nothing at all to do with whether he is a “ deputy ’ It would seem that the duties of ‘ ‘ one who is appointed, designated or deputed to act for another ’ ’ would, by the very nature of the position, be subject to the pleasure of the principal for whom that ‘ ‘ one ’ ’ is acting.

We return now to the question of whether petitioner, as District Administrator, was invested with sufficient of respondent’s administrative powers to constitute him a “deputy”. Paragraph fourteenth of respondent’s answer, which is expressly admitted in petitioner’s reply, reads as follows:

That the source of the District Administrator’s powers is the Chairman of the Workmen’s Compensation Board, who by virtue of Section 141 of the Workmen’s Compensation Law possesses the administrative powers in the Workmen’s Compensation Law, and the Workmen’s Compensation Board.” (Emphasis supplied.)

In paragraphs fifteenth to thirty-third of her answer, accompanied by exhibits, respondent enumerates several illustrative powers delegated to petitioner and describes various other duties exercised by a District Administrator. Two of the powers listed, however, namely, the powers to reopen and restore certain types of cases to the calendar, were allegedly delegated to petitioner by the board and not by the Chairman and appear to be in the nature of quasi-judicial rather than administrative powers. Furthermore, in an affidavit submitted in support of his reply, pursuant to section 1292 of the Civil Practice Act, petitioner alleges that the powers and duties he exercised were not only shared by others but were restricted and narrowed and subject to policy determinations of other officials of the board, thereby precluding his position from being that of “ deputy ”.

Inasmuch as the powers and duties alleged to have been delegated by the Chairman to petitioner as District Administrator are said to be illustrative and not complete, and since there is an issue as to the actual exercise by petitioner of said powers and duties, this proceeding may not be summarily disposed of on the present record. We thus agree with Justice Bergan that triable issues are presented and that there should be a hearing at Special Term, pursuant to section 1295 of the Civil Practice Act, so that these matters may be sufficiently developed and definite findings made thereon.

The order appealed from should be reversed, without costs, and the matter remitted to Special Term for further proceeding’s not inconsistent with this opinion.

Chief Judg’e Conway and Judges Desmond, Dye, Fuld, Van Voorhis and Burke concur.

Order reversed, etc.

       The Civil Service Law was completely revised, but the revision will not be effective until April 1, 1959. Former section 22 has been substantially retained, and the proviso involved in this case may be found in section 75 (subd. 1, par. [b]) of the new law.


author: Burke, J. Fuld, J. (concurring). Van Voorhis, J. (concurring).

text:
    Charles W. Parker, Appellant, v. Nathan Borock, as Receiver of Voges Manufacturing Company, Inc., Respondent.
    Argued October 6, 1958;
    decided January 15, 1959.

      Bernard H. Fitzpatrick and William J. Keating for appellant.
    Summary judgment was improper. (Textile Workers v. Lincoln Mills, 353 U. S. 448; Goodall-Sanford v. Textile Workers, 353 U. S. 550; General Elec. Co. v. Local 205, 353 U. S. 547; J. I. Case Co. v. Labor Bd., 321 U. S. 332; Elgin J. & E. R. Co. v. Burley, 325 U. S. 711; Heaman v. Rowell Co., 236 App. Div. 34, 261 N. Y. 229; Moore v. Illinois Cent. R. R. Co., 312 U. S. 630; Slocum v. Delaware, L. & W. R. R. Co., 339 U. S. 239.)

      Joseph Jaspan for respondent.
    I. Respondent secured no personal right of suit under the union contract. (Rotnofsky v. Capitol Distrs. Corp., 262 App. Div. 521; Employees v. Westinghouse Corp., 348 U. S. 437; Textile Workers v. Lincoln Mills, 353 U. S. 448; Schatte v. International Alliance of Theat. Stage Employees & Moving Picture Mach. Operators, 84 F. Supp. 669, 182 F. 2d 158; United Protective Workers v. Ford Motor Co., 194 F. 2d 997; MacKay v. Loew’s, Inc., 84 F. Supp. 676, 182 F. 2d 170; Reed v. Fawick Airfiex Co., 86 F. Supp. 822;
      Square D Co. v. United Elec., Radio & Mach. Workers, 123 F. Supp. 776; Silverton v. Rich, 119 F. Supp. 434; Ketcher v. Sheet Metal Workers’ Int. Assn., 115 F. Supp. 802; Marranzano v. Riggs Nat. Bank, 184 F. 2d 349.) II. Appellant has no cause of action under the laws of the State of New York. (Hudak v. Hornell Ind., 304 N. Y. 207; Rotnofsky v. Capitol Distrs. Corp., 262 App. Div. 521; Donato v. American Locomotive Co., 283 App. Div. 410, 306 N. Y. 966; Ott v. Metropolitan Jockey Club, 282 App. Div. 721, 282 App. Div. 946, 307 N. Y. 696; Matter of Triboro Coach Corp. v. Labor Relations Bd., 286 N. Y. 314; Rolandez v. Star Liq. Dealers, 257 App. Div. 97; American Reserve Ins. Co. v. China Ins. Co., 297 N. Y. 322.) III. Appellant has not exhausted his remedies under the contract. (Buberl v. Southern Pacific Co., 94 F. Supp. 11; Minor v. Washington Term. Co., 180 F. 2d 10.) IY. Appellant failed to show any element of individual tenure in his position. (Matter of Connecticut Co., 95 F. 2d 311.)
   Burke, J.

Prior to receivership, the Yoges Manufacturing Company entered into a collective bargaining agreement with Local 15 of the International Association of Machinists. The defendant receiver, after appointment to that office, was authorized by the Federal District Court to adopt the terms of this agreement.

Subsequently, on April 16, 1954, the plaintiff employee, Parker, á member of the union, was laid off by the receiver, and about four weeks later discharged for cause ”. Parker, contending that the discharge was not justified, invoked the grievance procedure outlined in the collective agreement. Pursuant to its terms, representatives of both the company and the union discussed the discharge, but Parker was not reinstated. Thereafter, the union specifically refused to pursue the right to arbitration although it was requested to do so by Parker.

Upon notice, of the refusal of the union to utilize the arbitration procedures, Parker moved in the Federal District Court to compel the defendant to arbitrate the discharge. This motion was denied. The court refused to rule further on Parker’s claimed right to maintain an action for wrongful discharge.

Here, plaintiff, relying on the collective bargaining agreement, seeks an award for money damages for breach of the agreement. Defendant, before answering, moved at Special Term for a stay pending arbitration. The court denied the motion for the stay on the ground that only the employer or union could seek a submission, not an employee. On appeal to the Appellate Division this determination was affirmed.

Defendant then interposed an answer which set forth two affirmative defenses. The first defense alleges that plaintiff’s hiring was one at will, that plaintiff was not a party to the collective bargaining agreement, and that plaintiff secured no right of action under the agreement. The second defense asserts that the ruling of the Federal court is res judicata and thus it bars this action even if plaintiff had a right to institute it under the collective bargaining agreement.

Belying on these defenses, defendant moved for summary judgment. The motion was denied. The Appellate Division, in reversing, stated that, under the collective agreement, plaintiff could maintain the action, but that he failed to establish that his hiring was for a definite term and was not a hiring at will.

It is manifest that the defense of res judicata is without substance. The District Court merely held that Parker could not compel arbitration under Federal statutory law. The court declined to rule on the issue involved in the present action, i.e., whether or not the plaintiff may maintain an action against his former employer for wrongful discharge.

As we have said, plaintiff’s action is for damages for wrongful discharge. For aught that appears, plaintiff’s contract of employment was not a hiring for a specific term. Hence, standing alone, it was terminable at will, and would not give rise to a cause of action. (Watson v. Gugino, 204 N. Y. 535.) But here there is an additional factor — the collective agreement. There has been a growing recognition by the courts that the collective agreement can modify the terms of the contract of hiring. (See Williston, Contracts, § 39A [3d ed.], and § 379A [Bev. ed.]; Teller, Labor Disputes and Collective Bargaining, §§ 166-169 and supplements thereto.)

In this jurisdiction, it is clear that Avage provisions in the collective bargaining agreement inure to the direct benefit of employees and may be the subject of a cause of action (Barth v. Addie Co., 271 N. Y. 31; Gulla v. Barton, 164 App. Div. 293; cf. Canton v. Palms, Inc., 152 Misc. 347; Morrison v. Gentler, 152 Misc. 710; Mesloh v. Schulte, 151 Misc. 750).

More recently, the courts of this State have been concerned with the effect of provisions in the collective bargain which prohibit the discharge of an employee, except for cause, on his contract of employment. There are two basic problems presented in these cases: (1) were the “no discharge without cause ” provisions intended to benefit directly the employee? (2) assuming an affirmative answer to the first question, what effect does the language used have on the employee’s contract of hiring?

The collective bargain in the present case provides that “ No regular employee shall be discharged or disciplined without good and sufficient cause ”. It further states that “When it becomes necessary to reduce the force by lay off in any classification thereof, seniority in said classification in the Company’s service shall govern the reduction in force ”. Included also is the probation clause which states that1 ‘ All new employees shall be deemed for the first forty-five (45) calendar days of their employment to be engaged for a trial period and such employees may be laid off or discharged during said period with or without cause ”.

We conclude that the employee is the direct beneficiary of such provisions (see Gulla v. Barton, supra). Unlike Rotnofshy v. Capitol Distrs. Corp. (262 App. Div. 521), these clauses were not inserted to insure the retention of union men by the company. In the present collective agreement, there are other specific provisions for a union shop and for releasing of employees who do not join the union.

Our main task then is to ascertain the effect to be ascribed to these provisions.

In Barth v. Addie Co. (271 N. Y. 31, supra) the plaintiff, discharged without cause, sought to recover wages from the date of his discharge to the date of the expiration of the collective contract. The agreement provided that the employer would not discharge any member of the union whose salary was payable weekly, unless the employer gave two weeks’ notice in writing of such an intention to the union, except that an employee may be discharged on payment of two weeks’ salary. It was held that plaintiff’s recovery was limited to two weeks’ salary. Implicit in this ruling is the finding that the contract of employment can be modified by a collective agreement limiting the right to discharge an employee. (See, also, Rolandes v. Star Liq. Dealers, 257 App. Div. 97; cf. Hudak v. Hornell Ind., 304 N. Y. 207; Marransano v. Riggs Nat. Bank, 184 F. 2d 349.)

Certainly, then, if -such clauses in the present agreement are to have meaning, we must arrive at a similar conclusion.

However, a fundamental proposition in construing instruments is that the entire writing must be considered. All the provisions of the agreement are to be given effect. Thus, while we have arrived at a different conclusion than the Appellate Division as to the significance of the 11 no discharge without cause ” provisions, we are of the opinion, nevertheless, that the granting of defendant’s motion for summary judgment must be sustained.

The collective agreement concludes: ‘1 This Agreement shall be binding on the employer, its successors and assigns, and upon the Union and its officers, representatives and members. ’ ’ Plaintiff is a member of the union and, therefore, is bound by the agreement. By its terms, the collective bargain inured ” to the members of the union. (Ott v. Metropolitan Jockey Club, 282 App. Div. 946, affd. 307 N. Y. 696.) In the Ott case, as here, the employee could not avail himself of the arbitration procedure since that right was granted only to the union and the employer by the terms of the collective agreement. Hence, plaintiff here is bound by and limited to the provisions of the agreement. (See, also, Triboro Coach Corp. v. State Labor Relations Bd., 286 N. Y. 314; Barth v. Addie Co., supra; Rolandes v. Star Liq. Dealers, supra.)

Incidentally the agreement in Hudak v. Hornell Ind. (supra) did not contain this limiting provision.

A reading of the existing agreement indicates that plaintiff has entrusted his rights to his union representative. It may be that the union failed to preserve them. As was said in Donato v. American Locomotive Co. (283 App. Div. 410, 417, affd. 306 N. Y. 966): “ the only conclusion which logically follows is that the employee is without any remedy,' except as against Ms own urnon, if he claims that the union mishandled the arbitration proceeding or improperly failed to move to vacate the award. If this conclusion is reached upon the premise here set forth, this is not an exaltation of procedure over substance; it rests rather upon a proposition of substantive law limiting the right of the individual employee under a collective bargaining agreement.”

The judgment of the Appellate Division granting defendant’s motion for summary judgment should be affirmed, with costs.

Fuld, J. (concurring).

I agree with the conclusion reached by the court and, in the main, with Judge Burke’s opinion. However, because I believe that the result is dictated as much by policy considerations as by the language of the collective bargaining agreement, I would add these few words.

Discharge cases arise in the course of the administration of a collective bargaining agreement. They may raise countless questions, such as interpretation of the agreement, reasonableness of plant ruléis 'and regulations and conformity with past practices. The exclusive representative is in the best position, after investigating the truth and merits of the employee’s complaint and after weighing the many factors involved, to determine whether uniformity in the administration of the agreement 'and protection of the group interests of the majority of employees require it to press or abandon the case. Accordingly, absent specific language giving the employee the right to act on his own behalf, it is my conclusion that, under a collective bargaining agreement such as the one before us—which contains provision for the submission of unsettled disputes to arbitration — the union alone has a right to control the prosecution of discharge cases. (See Oox, Bights Under A Labor Agreement, 69 Harv. L. Bev. 601, 648-652.)

To the contention that this may subject the individual employee to capricious or discriminatory action by the union, it is sufficient to observe, as Judge Burke has intimated, that the employee has a remedy against the union for breach of fiduciary duty if it unfairly discriminated against him. (See, e.g., Donato v. American Locomotive Co., 306 N. Y. 966, affg. 283 App. Div. 410, 417; Conley v. Gibson, 355 U. S. 41, 45 et seq.)

Van Voorhis, J. (concurring).

The clause in this labor contract that no regular employee shall be discharged or disciplined without good and sufficient cause, is not eouivalent to providing term employment for each employee until the expiration date of the collective bargaining agreement. Under the ruling in Rotnofshy v. Capitol Distrs. Corp. (262 App. Div. 521), the union could have obtained redress by arbitration if an employee were discharged for union activity, without being put to the necessity of prosecuting an unfair labor practice claim before the Labor Board. The presence of a closed or union shop clause in the agreement in the Rotnofshy case (as in the present case) strengthens the view that the nondischarge clause is to implement the prevention of anti-union activity. If plaintiff-appellant had an individual right to term employment by defendant-respondent, instead of the employment being at will, he would be entitled to intervene in any arbitration proceeding instituted by the union or to commence such a proceeding himself if the union refused to do so or, if he could not do that, to sue the employer at law (cf. Donato v. American Locomotive Co., 283 App. Div. 410, affd. 306 N. Y. 966). If plaintiff has an individual right, then, under the law, he must also have a remedy (Schuster v. City of New York, 5 N Y 2d 75; 11 Am. jur., Common Law, § 2, pp. 154-155). The Donato case (supra) is not to the contrary. It is said in the opinion there in the Appellate Division that where an individual employee has enforcible rights of his own under a collective bargaining agreement, an individual employee may have the right to maintain a direct action for damages where there is no arbitration clause barring such an action and, where arbitration is the exclusive remedy under the contract, to demand arbitration if the union is neglectful of his rights. The portion of the Donato opinion which is quoted in the majority opinion in this case does not express the holding of the court therein but only what was phrased as one possible alternative which was not adjudicated. The Appellate Division said there (p. 415): “We are not called upon to decide in this ease what remedies the plaintiff might have had if he had acted promptly and had pursued a different course ”, concerning which it is remarked that “ The law upon this subject is still in a state of flux.”

The union may not have a beneficial interest in the job tenure of employees. Such a holding would enable a labor union in its discretion to prevent any of its members from receiving the benefit of union wage scales or other individual property rights secured to the employees by collective bargaining agreements. Where such an agreement enures to the direct benefit of employees (Barth v. Addie Co., 271 N. Y. 31; Gulla v. Barton, 164 App. Div. 293), a union cannot exert power over its members by attempting to provide in the contract that what the union obtains for them the union can also take away. In the pending action, however, as the Appellate Division has held, this labor contract provides for no term of employment enforeible by anyone, and the clause in question is solely for the benefit of the union in order to prevent attacks upon it by discrimination in the discharge of union members. For this reason I vote to affirm the order of the Appellate Division.

Chief Judge Conway' and Judges Desmond, Dye and Froessel concur with Judge Burke; Judges Fuld and Van Voorhis concur in separate opinions.

Judgment affirmed.