text:
    STATE OF NEW YORK COURT ON THE JUDICIARY
    Present: Honorable Harold Birns, Presiding Officer.
    Honorable Vincent D. Damiani
    Honorable John P. Cohalan, Jr.
    Honorable Richard D. Simons
    Honorable Reid S. Moule
    In the Matter of the Proceedings Pursuant to Section 22 of Article VI of the Constitution of the State of New York in Relation to Michael D. Altman, a Justice of the Town Court of Fallsburg, Sullivan County, Third Judicial Department.
   Per Curiam.

Motion by respondent (1) for leave to renew and reargue a decision of this court, dated March 18, 1980, and an order of this court entered thereon, dated April 1, 1980, which granted the motion of counsel to the court to confirm the report of Referee Raymond C. Baratta finding respondent guilty of certain charges of judicial misconduct and denied the cross motion of respondent to disaffirm that report in part, and imposed the sanction of removal from office; (2) to expand the record of this proceeding to include a transcript of a meeting held February 12, 1974 between the Justices of the Appellate Division, Third Department, and certain Town and Village Justices from Sullivan County including respondent; and (3) to expunge from the record the affidavit of Richard J. Comiskey, sworn to on February 5, 1980 which was submitted by counsel to the court on the issue of sanctions.

Insofar as it seeks to expand the record to include the transcript of the February 12, 1974 meeting and to renew and reargue the question of an appropriate sanction, the motion is granted and thereupon the original determination is adhered to. In all other respects motion denied.

Dated: May 5, 1980

Harold Birns (Signed) Harold Birns

Presiding Officer, Court on the Judiciary

Hyman W. Gamso (Signed) Clerk of the Court on the Judiciary


source: Caselaw Access Project

author: Per Curiam.

license: Public Domain

text:
    STATE OF NEW YORK COURT ON THE JUDICIARY
    Present: Honorable Harold Birns, Presiding Officer.
    Honorable Vincent D. Damiani
    Honorable John P. Cohalan, Jr.
    Honorable Richard D. Simons
    Honorable Reid S. Moule
    In the Matter of the Proceedings Pursuant to Section 22 of Article VI of the Constitution of the State of New York in Relation to Murry Gaiman, a Justice of the Town Court of Fallsburg, Sullivan County, Third Judicial Department.
   Per Curiam.

Motion by respondent (1) for leave to renew and reargue a decision of this court, dated March 18, 1980, and an order of this court entered fherein, dated April 1, 1980, which granted the motion of counsel to the court to confirm the report of Referee Raymond C. Baratta finding respondent guilty of certain charges of judicial misconduct and denied the cross motion of respondent to disaffirm that report in part, and imposed the sanction of removal from office; (2) to direct a hearing with respect to a meeting held February 12, 1974 between the Justices of the Appellate Division, Third Department, and certain Town and Village Justices from Sullivan County including respondent; and (3) to direct censure or suspension of the respondent as an appropriate sanction, but not removal from office.

Insofar as it seeks to renew and reargue the question of an appropriate sanction, the motion is granted and thereupon the original determination is adhered to. In all other respects motion denied.

Dated: May 5, 1980

Harold Birns (Signed) Harold Birns

Presiding Officer, Court on the Judiciary

Hyman W. Gamso (Signed) Clerk of the Court on the Judiciary


author: Chief Judge Conway. Desmond, J. (dissenting).

text:
    Eliot Birnbaum et al., on Behalf of Themselves and All Other School Teachers in the State of New York Similarly Situated, Appellants, v. New York State Teachers Retirement System, Respondent.
    Argued March 26, 1958;
    decided June 25, 1958.

      Victor Levine and Gustus J. Amrose for appellants.
    I. Under section 7 of article V of the Constitution, the money benefits payable to teachers who were members of defendant system on July 1, 1940 may not be diminished or impaired below the money benefits provided by the mortality tables then in use. (Matter of Day v. Mruk, 307 N. Y. 349; Roddy v. Valentine, 268 N. Y. 228; Cashman v. Teachers’ Retirement Bd., 301 N. Y. 501; Strauss v. Union Cent. Life Ins. Co., 170 N. Y. 349; People ex rel. City of N. Y. v. Nixon, 229 N. Y. 356; Worthen Co. v. Kavanaugh, 295 N. Y. 56; Worcester v. Street Ry. Co., 196 U. S. 539; City of

      Utica v. County of Oneida, 187 Misc. 960.) II. Any new table adopted by defendant should under the statute be applied only to members thereafter coming into the system.

      Louis J. Lefkowits, Attorney-General (Milton Alpert and Paxton Blair of counsel), amicus curiae, in support of appellants’ position.
    The Constitution (art. V, § 7) does not permit the application of adverse mortality table changes to the computation of annuities of existing members of actuarial public pension and retirement systems in the State of New York. The use of such adverse mortality table changes in the computation of annuities purchased with contributions made by existing members of such systems violates the contract and property rights of such members. Statutes authorizing mortality table changes do not reserve the right to adversely affect the computation of annuities of existing members. (Pennie v. Reis, 132 U. S. 464; Dodge v. Board of Educ., 302 U. S. 74; Lynch v. United States, 292 U. S. 571; Matter of Friel v. McAdoo, 101 App. Div. 155, 181 N. Y. 558; Roddy v. Valentine, 268 N. Y. 228; Matter of Day v. Mruk, 307 N. Y. 349; Cashman v. Teachers’ Retirement Bd., 193 Misc. 57, 275 App. Div. 908, 301 N. Y. 501; Gorman v. City of New York, 280 App. Div. 39, 304 N. Y. 865; Matter of Hennessey v. Moore, 273 App. Div. 177.)

      John T. De Graff for Civil Service Employees Association, Inc., amicus curiae, in support of appellants’ position.
    The policy adopted by the Teachers Retirement System violated the constitutional prohibition. (Roddy v. Valentine, 268 N. Y. 228; Matter of Hennessey v. Moore, 273 App. Div. 177; Matter of Day v. Mruk, 307 N. Y. 349.)

      Charles A. Brind, Jr., for respondent.
    I. The New York State Teachers Retirement System has full authority to adopt mortality tables and is required to do so. II. The statute relating to the New York State Teachers Retirement System is not the same as that relating to the State Employees Retirement System, and a decision in connection with the Teachers Retirement System does not decide the issues in respect to the State Employees System. III. Plaintiffs-appellants herein do not have standing to maintain this action for declaratory judgment. (James v. Alderton Dock Yards, 256 N. Y. 298; Sartorious v.
      Cohen, 249 N. Y. 31; Brownell v. Board of Educ., 239 N. Y. 369; Adams v. Milliken, 278 App. Div. 791; Cudney v. Spaulding, 191 Misc. 979.)

      Arthur E. Walker for New York State School Boards Association, Inc., amicus curiae, in support of respondent’s position.
    If the position of plaintiffs-appellants is sustained, the New York State Teachers Retirement System will find itself in a position of being required to pay annuities based upon mortality tables in force at the time the person joins the system and in time the annuity funds of the system will be dissipated. At this time there will be no funds from which to pay further annuities to persons who are presently retired or to persons who thereafter retire.

      Peter Campbell Brown, Corporation Counsel (Leo A. Larkin, Seymour B. Quel, Pauline K. Berger, Robert E. Hugh and Peter J. Flanagan of counsel), for City of New York, amicus curiae, in support of respondent’s position.
    The action of the New York State Teachers Retirement Board in making revised mortality tables applicable to then present members merely carried out the existing statutory contractual formula applicable to the members’ annuity “benefit” on:July 1, 1940. Therefore, such ‘ ‘ benefit ’ ’ was not ‘ ‘ diminished ” or •“ impaired ’ ’ within the meaning of section 7 of article V of the Constitution, and the action of the board does not violate that constitutional provision. (Cashman v. Teachers’ Retirement Bd., 193 Mise. 57, 275 App. Div. 908, 301 N. Y. 501; Matter of Carroll v. Grumet, 281 App. Div. 35, 305 N. Y. 692; Hoar v. City of Yonkers, 295 N. Y. 274; White v. Hussey, 275 App. Div. 714, 276 App. Div. 1028, 276 App. Div. 1093; Matter of Hennessey v. Moore, 273 App. Div. 177.)
   Chief Judge Conway.

This is an appeal by the plaintiffs, as of right, from a judgment, entered upon an order of the Appellate Division, Fourth Department, which unanimously modified, on the law, an order of the Supreme Court, Onondaga County, at Special Term, (1) dismissing the complaint on the merits, and'(2) ordering “ that the action of the New York State Teachers Retirement System in adopting a mortality table on or about January 9th, 1946, according to the mandate of subdivisions 4 and 5 of Section 508 of the Education Law, and computing the actuarial equivalent of the contributions of. members thereafter retiring accordingly is legal and valid. ’ ’ The Appellate Division struck out the paragraph dismissing the complaint “ on the ground that the dismissal of the complaint is inconsistent with the declaration of rights ’ ’. In all other respects the judgment of Special Term was affirmed.

This is an action for a declaratory judgment brought by plaintiffs on behalf of themselves and all other schoolteachers in the State of New York similarly situated. They challenge the validity of the action of the defendant, the New York State Teachers Eetirement System, in adopting on or about January 9, 1946, an actuarial table for computing the annuity benefits of the members of the defendant pursuant to subdivisions 4 and 5 of section 508 of the Education Law of the State of New York. Their contention is that the action of the defendant constitutes a breach of the contractual relationship established by section 7 of article V of the Constitution of the State of New York, as to members of the retirement system prior to the effective date (July 1, 1940) of the constitutional provision.

The complaint alleges, and the answer admits, that since 1920 the Education Law has established a retirement system for public schoolteachers within the State whereby the teachers make regular contributions to a retirement fund and receive in return upon their retirement an annuity; that the plaintiffs have made the required contributions, the plaintiff Birnbaum since 1935 and the plaintiff Cate since 1922; that they are eligible to retire after having completed 25 years of service and having attained the age of 60 years or over; and that the mortality table adopted on January 9, 1946 reduces by approximately 5% the amount to be paid to the plaintiffs pursuant to the table in use on July 1, 1940, when section 7 of article V of the Constitution went into effect.

The answer pleads two affirmative defenses. The first is that the plaintiffs have no present interest in the subject matter of the action and will have none until and when, if ever, they seek retirement and apply for their retirement benefits. The second is that subdivision 4 of section 508 of the Education Law mandates the periodical adjustment of annuity benefits payable upon retirement according to mortality and actuarial tables adopted pursuant to subdivisions 4 and 5 of section 508 of the Education Law, and that such section constitutes and forms part of the contract between each member of the retirement system and the New York State Teachers Retirement System.

Special Term rejected defendant’s defense that the plaintiffs did not have standing to ask for a declaratory judgment. The court wrote: “ Neither of the plaintiffs has resigned or applied for retirement. Also recognized, is the possibility as urged by the defendant, that one or both of the plaintiffs may cease their employment as teachers in the public school prior to attaining retirement status, in which event they could withdraw their accumulated contributions to the pension system and the mortality tables in effect would have no bearing. However, the security offered by membership in the retirement system is generally regarded as an inducement to employment in State service or in the public schools. The value of retirement benefits and prospective rate of payment, especially in the face of continued inflation, is of vital concern to the plaintiffs and might well be the determining factor in their decision to continue in the teaching profession, or seek more lucrative employment.”

The foregoing reasoning is sound and we think that nothing more need be said herein with respect to the plaintiffs ’ standing to prosecute this action.

Insofar as the merits of the case are concerned, Special Term ruled in favor of the defendant stating, in part: The right of an employee member of the retirement system in respect to the rate of payment of annuity benefits becomes fixed upon retirement and not at the time he becomes a member of the system, or even when he has attained eligibility. The contractual relationship created by section 7 of article V of the Constitution imposes upon the Teachers’ Retirement System the obligation to pay to the members upon retirement, a pension as additional compensation for services rendered in the past, and an annuity based upon the member’s contributions. Prior to retirement for superannuation the member’s rights are inchoate. ’ ’

Under the Teachers Retirement System a ‘ retirement allowance ” is made up of two separate and independent parts: (1) a ‘ pension ’ ’ which is provided from contributions made by the employer, and (2) an annuity ” which is provided from contributions made by the member (Education Law, § 501, subds. 12,13,14).

The “ pension ” part of the “ retirement allowance ” is not involved in this case. Mortality tables are not involved in the computation of the ‘ ‘ pension ’ ’ paid on superannuation retirement because the “pension ” consists of: “ One quarter (%) of his [the member’s] final average salary or if his total service is less than twenty-five years, a pension of one one-hundredth (1/100) of his final average salary multiplied by the number of years of total service ” (Education Law, § 510, subd. 2, par. b).

The computation of the ‘1 annuity ’ ’ part of the 1 ‘ retirement allowance ” does involve the use of mortality tables. The Education Law (§ 510, subd. 2, par. a) provides that the “ annuity * # * shall be the actuarial equivalent of his accumulated contributions at the time of his [the member’s} retirement ’ ’.

The term “ actuarial equivalent ” has reference to the mathematical formula for computing annuity payments according to the mortality table calculated and adopted pursuant to the provisions of subdivisions 4 and 5 of section 508 of the Education Law.

The issue in this case relates solely to the use of new mortality tables to compute the “annuity” which is payable upon retirement from funds contributed by the member. When the Teachers Retirement System adopted new mortality tables in 1946, the new tables were made applicable to the computation of all annuities of all members who had not previously retired. The new tables, as mentioned earlier, have the effect of reducing the annuities of all members of the system by approximately 5%.

As a practical matter, the controversy here comes to this: Plaintiffs argue that the contractual arrangement which the Constitution envisaged was the usual annuity policy whereby an insurance company, on the day the policy is issued, agrees that it will pay periodically a fixed and stated amount commencing on a certain date and that, viewed in that light, it was intended that a teacher who was a member of the Retirement System on July 1, 1940, after making the required contributions to the Retirement System over the required period of time, should receive an annuity computed from mortality tables in use on July 1, 1940 (the date the constitutional amendment became effective). The defendant Retirement System, on the other hand, maintains that it was intended that the Retirement Svstem should determine, at the time of retirement, the amount of annuity which the member’s contributions will purchase at the time of retirement, employing the mortality table in effect at the time of making such calculation.

The determination of Special Term, in favor of the Retirement System, was predicated upon the theory that “ [p]rior to retirement for superannuation the member’s rights are inchoate ”. The plaintiffs assert that it was this very theory that the constitutional amendment was designed to set at rest. We agree.

In Roddy v. Valentine (268 N. Y. 228 [1935]) this court held that where the statutory conditions for retirement from the .civil service have been met “ and the award of the pension or benefit has been made, or as of right should have been made * * * the interest becomes vested and takes on the attributes of a contract, which in the absence of statutory reservations, may not legally be diminished or otherwise adversely affected by subsequent legislation ” (p. 232). We pointed out, however, (p. 231) that “ [w]here the statutory scheme creates a fund wholly or largely out of public moneys, the interest of the member down to the point where there has been compliance with all precedent conditions and the award has been or as of right should have been made, can hardly be deemed contractual ’ ’ arid that1 ‘ whatever its legal nature may be, there seems to be no doubt that it is subject to change or even to revocation at the will of the Legislature.” Thereafter, in 1938, section 7 of article Y of the New York State Constitution was adopted by the Constitutional Convention and approved by the people. It reads: ‘ ‘ After July first, nineteen hundred forty, membership in any pension or retirement system of the state or of a civil division thereof shall be a contractual relationship, the benefits of which shall not be diminished or impaired.”

It seems clear that the foregoing constitutional provision was designed to overcome the dictum in the Roddy case {supra) to the effect that prior to retirement, pension and retirement systems of the State or of a civil division thereof, created wholly or largely out of public moneys, were subject to the. will of the Legislature. By the constitutional amendment the people determined to confer contractual protection upon the benefits of pension and retirement systems of the State and of the civil divisions thereof, and to prohibit their diminution or impairment prior to retirement. As this court said in Matter of Day v. Mruk (307 N. Y. 349, 354): “ [A]fter such effective date [that of the constitutional amendment] such systems were no longer gratuitous, but by virtue of the new amendment became contracts and the members of pension systems thereby acquired vested interests which could not thereafter be diminished or impaired. Excerpts from the proceedings of the Convention appear to bear out this conclusion. ’ ’

Thus, prior to the constitutional amendment, it was retirement that fixed the rights of the employee. The purpose of the amendment was to fix the rights of the employee at the time he became a member of the system. Obviously when an employee retires from public service it is the money payments he receives from either a pension or retirement system that is the principal if not the sole benefit the system affords him. At the time the employee joins the system he is able to look forward to a pension or retirement allowance when his service is over. That reward or benefit is part of the compensation which he accepts in lieu of the greater rewards of private employment. The adoption of a mortality table which reduces, by approximately 5%, the amount of the money payments he will receive from the Retirement System, as the January 9, 1946 table does, certainly effects a diminution and an impairment of the benefits of the Retirement System.

The defendant State Teachers Retirement System concedes that section 7 of article V of the Constitution endows membership in the various retirement systems of the State and its civil divisions, including the New York State Teachers Retirement System, with the attributes of a contractual relationship. Its contention is that the applicable provisions of the statutes in force at the time membership in the Retirement System is acquired must be read into the contract; that the provisions of subdivisions 4 and 5 of section 508 of the Education Law were in force at the time section 7 of article V of the Constitution became effective and that such provisions contemplate (1) a periodic review by the State Teachers Retirement System of the mortality tables being used to compute annuities, (2) the adoption of new mortality tables, and (3) the use of the new mortality tables in the computation of the annuities of all persons thereafter retiring. In other words, the defendant argues that the constitutional amendment did no more than transform into a contract all the provisions of the Education Law as they stood on July 1, 1940, including the claimed right of the defendant to adopt a mortality table that reduces the payments to teachers then in the system. If the defendant be correct, not only will the teachers suffer impairment of their benefits to the extent of the approximately 5% called for by the mortality table of January 9, 1946, but, in addition, they will continue to be exposed to the vicissitudes of actuarial experience in the future, and the defendants will be free to reduce still further the annuities of teachers by the adoption of another mortality table. The constitutional amendment was adopted to prevent just such a situation from existing. What is more, it does not appear that the Education Law bestows upon the defendant the right to adopt a mortality table which reduces the payments to teachers already in the system. Subdivisions 4 and 5 of section 508 of the Education Law read as follows:

“4. The retirement board shall provide for maintenance of an individual account with each member showing the amount of the member’s contributions and the interest accumulations thereon. It shall collect and keep in convenient form such data as shall be necessary for the preparation of the required mortality and service tables, and for the compilation of such other information as shall be required for the actuarial valuation of the assets and liabilities of the various funds created by this article. Upon the basis of the mortality and service experience of the members and beneficiaries of the system, the retirement board from time to time shall adopt the tables to be used for valuation purposes and for determining the amount of annuities to be allowed on the basis of the contributions of members.
“5. At such times as the retirement board may deem it necessary and at least once each quinquennial period, the retirement board shall have prepared by a competent actuary familiar with retirement systems, a report showing a complete valuation of the present and prospective assets and liabilities of the various funds created by this article with the exception of the expense fund. The actuary shall make an investigation of the mortality and service experience of the members of the retirement system and shall report fully upon its conditions with such recommendations as he shall deem advisable for the information of the retirement board in the proper operation of the retirement system.”

While it is clear that section 508 contemplates a periodic review of the mortality tables to be used in determining the amounts of annuities to be allowed on the basis of the contributions of members, the section nowhere declares that mortality tables adopted after a person has become a member of the system are to be employed in determining the annuity benefits to which such person is entitled upon retirement. Nor do we see that we should read such an intention into the statute. The constitutional amendment, as demonstrated above, prohibits official action during a public employment membership in a retirement system which adversely affects the amount of the retirement benefits payable to the members on retirement under laws and conditions existing at the time of his entrance into retirement system membership. If we are to construe section 508 of the Education Law as authorizing that which the Constitution prohibits, then, the statute must be held to have been superseded by the constitutional amendment. It seems to us that there is no necessity for so holding since it is reasonable to construe the Education Law as authorizing (1) a periodic review by the State Teachers Retirement System of the mortality tables being used to compute annuities, (2) the adoption of new mortality tables, and (3) the use of the new mortality tables in the computation of the annuities of only such persons as enter the system thereafter.

Defendant argues that if this court holds that new mortality tables adopted by the Retirement System are applicable only to those persons who joined the system subsequent to the date of such adoption, the system will be plunged into bankruptcy. The answer to that argument must be that if the people intended to decree, by the constitutional amendment, that mortality tables adopted by the system after one has become a member are not to be applied in the computation of the annuity of such person, we are not at liberty to hold otherwise simply because the system may become bankrupt as a result. It is clear, however, that the people were cognizant of the possible financial difficulties in which the State and its civil divisions having retirement systems might find themselves unless they were given an opportunity, prior to the effective date of the amendment, to review their retirement systems and to adjust, modify or supplement the provisions thereof so as to avoid bankruptcy. As we said in Matter of Bay v. Mruk (307 N. Y. 349, 354, supra): “ Section 7 of article V was added to the Constitution of the State of New York in 1938. The amendment took effect except as otherwise provided on January 1, 1939 (art. XX, § 1). The effective date of section 7 of article Y was postponed for one and one-half years, however, until July 1, 1940, presumably to enable the State and its civil divisions to review their pension systems and to adjust, amend, modify or supplement the provisions of existing systems in the light of the fact that after such effective date such systems were no longer gratuitous, but by virtue of the new amendment became contracts and the members of pension systems thereby acquired vested interests which could not thereafter be diminished or impaired.” The defendant, instead of taking any action during the one and one-half year period before the amendment became effective, delayed action until January 9, 1946, over five and one-half years after the amendment became effective and over seven years after it had been approved by the people at the General Election of 1938. If bankruptcy now threatens to overtake the Teachers Retirement System, the system must turn to the Legislature for financial assistance. It may not ask us to ignore the will of the people as expressed in their Constitution.

The judgment of the Appellate Division should be reversed, with costs in all courts, and the matter remitted to. Special Term for the entry of a declaratory judgment in favor of the plaintiffs.

Desmond, J. (dissenting).

The question is: may defendant State Teachers Retirement System, by adopting new (1946) mortality tables and by using those new tables to compute the annuities due on retirement to persons who became members before such change, validly compute the annuities of such members at levels below those that would have been arrived at by the use of other and older tables which showed less longevity? Put in another way, the question is whether such a practice is forbidden by subdivision 7 of article V of the State Constitution, effective July 1, 1940, which makes membership in such a retirement system a contractual relationship, the benefits of which shall not be diminished or impaired ”? Plaintiffs, schoolteachers who became members of defendant system before 1940 and are now eligible for retirement, say that one of the ‘1 benefits ” protected by the Constitution is the right after retirement to an annuity in amount not less than would result from the application to the respective members’ accumulated annuity funds of the longevity tables in use when subdivision 7 of article V became law in 1940. On the other hand, defendant system points out that under the statutes in effect before and after 1940, the annuity was and is required by explicit and unambiguous statutory language to be “ the actuarial equivalent of his [the member’s] accumulated contributions at the time of his retirement ” (Education Law, § 510, subd. 2, par. a). Other clear statutes (Education Law, § 508, subds. 4, 5), defendant reminds us, require the use by the system of up-to-date mortality tables. The system concludes, therefore, that the “benefit” protected by the Constitution is no more than the right to an annuity which is “ at the time of his retirement ’ ’ and according to then current tables the actuarial equivalent of the member’s accumulated contributions.

Both courts below agreed with defendant Retirement System that fixation of annuities in accord with up-to-date mortality tables in effect at the time of retirement is not only constitutionally valid but is required by statute, even though the use of the newer tables results in an annuity about 5% less than would be fixed were the pre-1940 tables used. I think that conclusion is sound.

As is well known, a 11 retirement allowance ’ ’ is made up of two separate amounts separately derived and computed by entirely different formula}. The ‘ ‘ pension ’ ’ component (with which this litigation is in no way concerned) means “ the annual payments for life derived from payments made by an employer ” (§ 501, subd. 13) and consists of monthly payments computed by multiplying salary by a fraction determined by length of service (Education Law, § 510, subd. 2, par. b). What we are concerned with here is the 11 annuity ’ ’ component, that is, 11 the annual payments for life derived from contributions made by contributor ” (Education Law, § 501, subd. 12). Pension funds are contributions from the employing boards of education only. Annuities are established for each contributor from his own contributions only (plus interest). The annuity fund must be kept actuarily sound. It is made up entirely of members’ savings. It follows, legally, mathematically and necessarily that a member is entitled ‘ ‘ at retirement ’ ’ to such an annuity only as his savings will produce according to appropriate tables.

The whole scheme of creating annuities (as distinguished from pensions) is thus described in subdivisions 4 and 5 of section 508 of the Education Law, in effect since before 1940:

“ 4. The retirement board shall provide for maintenance of an individual account with each member showing the amount of the member’s contributions and the interest accumulations thereon. It shall collect and keep in convenient form such data as shall be necessary for the preparation of the required mortality and service tables, and for the compilation of such other information as shall be required for the actuarial valuation of the assets and liabilities of the various funds created by this article. Upon the basis of the mortality and service experience of the members and beneficiaries of the system, the retirement board from time to time shall adopt the tables to be used for valuation purposes and for determining the amount of annuities to be allowed on the basis of the contributions of members.
“5. At such times as the retirement board may deem it necessary and at least once each quinquennial period, the retirement board shall have prepared by a competent actuary familiar with retirement systems, a report showing a complete valuation of the present and prospective assets and liabilities of the various funds created by this article with the exception of the expense fund. The actuary shall make an investigation of the mortality and service experience of the members of the retirement system and shall report fully upon its conditions with such recommendations as he shall deem advisable for the information of the retirement board in the proper operation of the retirement system.”

Add to those subdivisions the above-quoted provisions of paragraph a of subdivision 2 of section 510 of the Education Law that an annuity is to be in amount the “ actuarial equivalent ” of the respective member’s contributions “at the time of his retirement ”, and subdivision 5 of section 516 and subdivision 1 of section 517, transferring the member’s savings at his retirement to an “ annuity reserve fund” from which his annuity is thereafter paid. Now we have the whole annuity scheme. Until retirement the system holds in the name of each member a separate account made up of his own payments plus interest. At retirement time the system computes the “ actuarial equivalent ” of the total in the member’s account and the result is the annuity amount for that member. For this purpose the mortality tables must be kept up to date by an actuary. While no statute says in so many words that the latest mortality table must be used, the whole sense of the statutory scheme requires such use. Since that statutory scheme was in full effect before and since 1940, there is no constitutional objection to applying it after 1940 as well as before.

Plaintiffs argue that the new tables with the resulting smaller annuities should be applied to those employees only who became system members after the new tables were made applicable in 1946. I see nothing in the constitutional provision to compel such a differentiation. The “ benefits ” frozen by the 1940 constitutional amendment involved the fixation of such separate annuity at and as of and not before the retirement time of the individual member. No system member ever had a right to an annuity of any particular dollar amount. His right was to receive as an annuity the actuarial equivalent of his total savings. Not only is such equivalence required, by precise statutory language, to be computed at and as of the retirement date, but it is obvious that to be actuarily equivalent the annuity could not be computed as of any other time. The requirement in subdivisions 4 and 5 of section 508 of the Education Law that the mortality tables be periodically reviewed and new tables adopted and used in computation of annuities merely spells out and confirms what is implicit in the 61 actuarily equivalent ’ ’ standard set out in paragraph a of subdivision 2 of section 510.

Therefore, the answer to all plaintiffs’ arguments is that the ‘ ‘ benefit ’ ’ made irreducible by the Constitution is no more than a right to such an annuity as is purchasable at retirement according to current actuarial formulae out of the member’s own particular savings fund. Until retirement that fund is kept in the custody of the system as if in a savings bank.

The judgment appealed from should be affirmed.

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

Judgment reversed, with costs in all courts, and the matter remitted to Special Term for further proceedings in accordance with the opinion herein.


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

text:
    Eleanor Ferrara et al., Respondents, v. Anthony C. Galluchio et al., Appellants.
    Argued April 2, 1958;
    decided June 25, 1958.

      Walter G. Evans and Joseph Kane for appellants.
    I. The admission of testimony by plaintiff that she was told that there was a possibility of cancer was prejudicial error. (Cross v. City of Syracuse, 200 N. Y. 393; Matter of Riehl v. Town of Amherst, 308 N. Y. 212; Gleason v. Hudson Val. Ry. Co., 143 App. Div. 884; Tobin v. Hewlett Branch Athletes, 2 A D 2d 758; Albers v. Wilson, 201 App. Div. 775; Osterhout v. Delaware, L. & W. R. R. Co., 138 App. Div. 625.) II. The court further erred in allowing Dr. Kaplan to testify that plaintiff was suffering from “ caneerophobia ”, thereby introducing plaintiff’s own self-serving statements. (Davidson v. Cornell, 132 N. Y. 228; Slacke v. Yellow Taxi Corp., 260 App. Div. 1046; Belter v. Van Winkle, 234 App. Div. 886.) III. Plaintiffs’ proof was insufficient to prove a cause of action, as a matter of law. (Shallow v. Metropolitan Life Ins. Co., 278 App. Div. 328, 303 N. Y. 827; Strasberg v. Equitable Life Assur. Soc., 281 App. Div. 9; Terraqua v. Emigrant Ind. Sav. Bank, 273 App. Div. 254; Matter of Burnham, 201 App. Div. 621; Matter of Horton, 297 N. Y. 891; De Salvo v. Stanley-Mark-Strand Corp., 281 N. Y. 333; Danaher v. City of Brooklyn, 119 N. Y. 241; Duffy v. Owen A. Mandeville, Inc., 3 A D 2d 756; Savignano v. City of New York, 263 App. Div. 823; Shannahan v. Empire Eng. Corp., 204 N. Y. 543; Garthe v. Ruppert, 264 N. Y. 290.)

      William L. Shumate,.James S. Regan, Jr., and William F. X. Geoghan, Jr., for respondents.
    I. Upon the proof in this case the question whether or not defendants were guilty of a violation of a duty owing by them to plaintiff was purely one of fact for the jury’s determination. II. Testimony regarding the danger of cancer developing at the site of the burn was competent and relevant on the issue of plaintiff’s mental anguish resulting from the injury. (Webb v. Yonkers R. R. Co., 51 App. Div. 194; O’Neil v. Drydock, E. B. & B. Ry. Co., 27 Jones & Sp. 123, 129 N. Y. 125.) III. There was no error in the court’s rulings in connection with Dr. Kaplan’s testimony.
   Chief Judge Conway.

Plaintiff wife, who was suffering from bursitis in the right shoulder, received a series of X-ray treatments from defendants, doctors specializing in X-ray therapy. After the third treatment she experienced a nauseous feeling. She told one of the defendants about it before he administered the fourth treatment. He prescribed certain pills which she purchased and took. At the conclusion of the sixth treatment she still had a pain in her right shoulder and one of the defendants suggested that if the pain continued she should come back for a seventh treatment. The pain persisted and three days later she returned and the seventh treatment was administered. Subsequent thereto, the shoulder began to itch, turned pink, then red, and blisters formed. These blisters ruptured and the skin peeled, leaving the raw flesh of the shoulder exposed. Scabs formed and lasted several months, a few as long as five or six months and one lasted several years, leaving the shoulder with a permanently marginated area of skin approximately three by five inches exhibiting telangiectasia, hyperigmentation, depigmentation and a suggestion of atrophy. This condition was diagnosed as chronic radiodermatitis which was caused by the X-ray therapy. While the blisters were still present the plaintiff went back to the defendants and showed them the condition of her shoulder. They gave her a prescription for some salve which she procured and used.

On December 3, 1951, approximately two years after the treatments, the plaintiff was referred by her attorney to a dermatologist for examination. After taking a history and making an examination the dermatologist prescribed a substance used in the treatment of radiodermatitis and advised the plaintiff to have her shoulder checked every six months inasmuch as the area of the burn might become cancerous.

The instant action for malpractice was predicated upon three theories: (1) that the total number of Roentgens (1,400) applied to the plaintiff was excessive; (2) that the total number of Roentgens was excessive when applied to a single field or portal of the shoulder area; and (3) that in any event the amount applied was excessive insofar as this particular patient was concerned and the defendants could and should have been aware of this when the plaintiff complained of nausea before the fourth treatment, in that it is unusual for nausea to result from X-ray treatment to the shoulder and was under the circumstances a possible indication that the patient was sensitive to radiation and the dosage thereafter should have been discontinued or reduced. In addition to adducing evidence with respect to the treament and the injuries, the plaintiff offered the testimony of a duly qualified radiologist who supported the three theories of malpractice. To disprove the plaintiffs’ case the defendants, in addition to so testifying themselves, produced four duly qualified radiologists who testified that the dosage was not excessive under any view of the facts. Plaintiff also introduced, on the issue of mental anguish, the testimony of a neuro-psychiatrist to the effect that she was suffering from a severe cancerophobia, that is, the phobic apprehension that she would ultimately develop cancer in the site of the radiation burn. The witness further testified that she might have permanent symptoms of anxiety.

The jury rendered a verdict in favor of plaintiff Eleanor Ferrara in the sum of $25,000 and in the sum of $1,000 to her husband, plaintiff Bernard Ferrara, for the loss of her services. The Appellate Division unanimously affirmed. We granted leave to appeal for the sole purpose of passing on the propriety of the award of $15,000 of the $25,000 to the plaintiff for mental anguish flowing from the cancerophobia.

The plaintiff’s statement that the dermatologist told her she should have the shoulder checked every six months because there was a possibility that cancer might develop was not adduced to establish the fact that the site of the burn might become cancerous. As her attorney said at the trial, we are not making any claim that this person is going to sustain a cancer. We are going on a neurosis.” Since the statement of the dermatologist was introduced not for the purpose of proving that plaintiff would develop cancer but merely for the purpose of establishing that there was a basis for her mental anxiety, such testimony was not objectionable hearsay (see People v. Jung Hing, 212 N. Y. 393, 406; People v. Hines, 284 N. Y. 93, 110; 6 Wigmore on Evidence [3d ed.], § 1766). Nor do we believe that it was improper for the trial court to permit the jury to consider such testimony in determining the amount of the recovery against the defendants.

In this State, as in most other States, the rule is now well established that a wrongdoer is liable for the ultimate result, though the mistake or even negligence of the physician who treated the injury may have increased the damage which would otherwise have followed from the original wrong.” (Milks v. McIver, 264 N. Y. 267, 270; see, also, People v. Kane, 213 N. Y. 260.) It is only where the causal connection between the original injury and the ultimate damage may be said to be ” too tenuous ” that the original wrongdoer will be freed from liability for the ultimate damage (see Milks v. McIver, 264 N. Y. 264, 270, supra). In our judgment, this is not such a case. On the contrary, there was a real connection between the ultimate damage and the original wrong. The employment of the dermatologist must be regarded as a natural consequence of the original wrongdoers’ tort because the necessity for such employment was imposed upon the plaintiff by the original wrongdoers’ fault and because the plaintiff, an unprofessional person, did all that she could do, or at least, in the conditions obtaining, what she had a right to do, when she employed the dermatologist to treat and heal her injury. The original wrong certainly occasioned the examination and treatment by the dermatologist. He prescribed a substance to be used by plaintiff for the burn. Had such substance aggravated plaintiff’s injury no one could doubt that, under the present state of our law, the original wrongdoers would be responsible for the resulting damage to its full extent including additional mental anguish caused plaintiff. The only difference here is that the later treatment by the dermatologist did not aggravate the physical injury inflicted by the original wrongdoers but, rather, increased only the mental anguish attendant upon such injury. vWe perceive no sound reason for drawing a distinction between the two situations. The dermatologist apparently thought it essential as part of his treatment and as a protective measure for plaintiff to advise her to have her shoulder checked every six months because of the possibility of cancer. Under our law the risk of such advice and its effects on the plaintiff must be borne by the wrongdoers who started the chain of circumstances without which the cancerophobia would not have developed.

This case is somewhat novel, of course, in that it appears to be the first case in which a recovery has been allowed against the original wrongdoer for purely mental suffering arising from information the plaintiff received from a doctor to whom she went for treatment of the original injury. We have concluded, however, that under the circumstances of the case such recovery was justified.

Freedom from mental disturbance is now a protected interest in this State. “ [T]he only valid objection against recovery for mental injury is the danger of vexatious suits and fictitious claims, which has loomed very large in the opinions as an obstacle. The danger is a real one, and must be met. Mental disturbance is easily simulated, and courts which are plagued with fraudulent personal injury claims may well be unwilling to open the door to an even more dubious field. But the difficulty is not insuperable. Not only fright and shock, but other kinds of mental injury are marked by definite physical symptoms, which are capable of clear medical proof. It is entirely possible to allow recovery only upon satisfactory evidence and deny it when there is nothing to corroborate the claim, or to look for some guarantee of genuineness in the circumstances of the case. The problem is one of adequate proof, and it is not necessary to deny a remedy in all cases because some claims may be false. The very clear tendency of the recent cases is to refuse to admit incompetence to deal with such a problem, and to find some basis for redress in a proper case.” (Prosser on Torts, § 34, pp. 212-213.) The present case is a proper one for redress since we find a “ guarantee of genuineness [of the cancerophobia] in the circumstances of the case.” Plaintiff suffered an X-ray burn which did not heal for an unusually long period of time. One scab on plaintiff’s shoulder lasted several years and her shoulder was left with a permanently marginated area of skin approximately three by five inches exhibiting telangiectasia, hyperigmentation, depigmentation and a suggestion of atrophy. It is common knowledge among laymen and even more widely among lay women that wounds which do not heal over long periods of time frequently become cancerous. Physical culture lectures to high school and college students, radio advice from life insurance companies, newspaper daily articles by doctors — all give the same advice. Here, in addition, plaintiff was personally advised by a doctor specializing in dermatology that her wound might develop into cancer and that she should, therefore, have it checked every six months. That would appear to have been sound advice. It is entirely plausible, under such circumstances, that plaintiff would undergo exceptional mental suffering over the possibility of developing cancer. The jury, Avho, under our Constitution (art. I, § 2), must determine questions of fact, including credibility, observed the plaintiff’s demeanor on the stand and accepted her testimony as true. Inasmuch as the circumstances of the case corroborate the plaintiff’s claim, there is no warrant in law for overturning the jury’s verdict.

It is self-evident that every case must be decided according to the facts peculiar to it. The verdict in the present case is supported by the facts. We do not see that we need announce a principle concerning the extent to which an original wrongdoer may be held for mental anguish caused to his victim as a result of information received from another doctor during the treatment of the original injury. The applicable principle has already been stated in Milks v. McIver (264 N. Y. 267, 269, supra): “ Liability for damages caused by wrong ceases at a point dictated by public policy or common sense.” In the present case neither public policy nor common sense is offended by this jury verdict. Each negligence case must, in turn, be solved “pragmatically.” (Bird v. St. Paul Fire & Mar. Ins. Co., 224 N. Y. 47, 52, 53).

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

Froessel, J. (dissenting).

We are all in agreement that there is ample evidence to support the jury’s finding on the issue of liability, and that the verdict as to plaintiff’s vdfe’s physical damages and the husband’s loss of services Avas not improper. We disagree, however, Avith so much of the majority opinion as sanctions the recovery of $15,000 by plaintiff for “ cancerophobia ’ ’, allegedly flowing from a statement plaintiff claims to have been made by a dermatologist to whom she was sent by her attorney two years after her injury. The statement was to the effect that she should have her shoulder checked every six months because there was a possibility that cancer might develop, Avhich statement he did not acknowledge having made.

Although the courts of other jurisdictions are in disagreement as to the allowance of damages of this nature (Lake Erie & Western R. R. Co. v. Johnson, 191 Ind. 479; St. Louis, Iron Mountain & Southern Ry. Co. v. Buckner, 89 Ark. 58; see case note in 20 L. R. A. [N. S.] 458; 15 Am. Jur., Damages, § 188, pp. 606-607.; 25 C. J. S., Damages, § 70, subd. d, pp. 559-560), this court has never had occasion to pass upon the question. As pointed out by the majority, the applicable rule in this case would appear to be that 11 Liability for damages caused by wrong ceases at a point dictated by public policy or common sense ” (Milks v. McIver, 264 N. Y. 267, 269).

Whatever argument may be made to the contrary, we do not feel, on balance and as a matter of public policy, that damages based upon mental anguish, engendered by a physician’s statement as to a possible development of another ailment, are warranted under such a rule. Physicians commonly inform patients of conceivable complications which may arise from an injury, and we do not believe that so ready a road to the multiplication of damages ensuing from physical injury should be opened to plaintiffs. The unfortunate result of' the rule announced by this decision, albeit disclaimed, is that a doctor’s mere statement as to a possibility is a steppingstone to an increased recovery should the patient simply claim to be concerned enough to suffer worry by reason thereof. In other words, recovery would depend upon the subjective mind of the litigating plaintiff and speculation by the physician, without even the safeguard of an opinion by the latter based on reasonable certainty.

The decision of the majority introduces into the law a new field of damages for cultivation by plaintiffs and affording countless oportunities for fraudulent unverifiable claims. In our opinion, legal responsibility for an injury may not include mental suffering in contemplation of injuries which may never develop out of those already suffered, based upon a doctor’s statement as to mere possible developments.

■ Accordingly, we would modify the judgment appealed from by reducing the amount thereof by the sum of $15,000, and, as so modified, affirm, with costs.

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

Judgment affirmed.


author: Froessel, J.

text:
    St. Regis Tribe of Mohawk Indians, by Norman Tarbell et al., Individually as Duly Enrolled Members and as Duly Elected Chiefs of the St. Regis Tribe of Indians, on Behalf of All St. Regis Indians, Appellants, v. State of New York, Respondent.
    (Claim No. 32879.)
    Argued May 14, 1958;
    decided June 25, 1958.

      William H. Quimby, Jr., and Arthur B. Hart for appellants.
    I. The Treaty of 1796 did not extinguish Indian title to Barn-hart’s Island, bed of the St. Lawrence Biver surrounding the island, and the inherent and intrinsic water power in the St. Lawrence Biver. (Choate v. Trapp, 224 U. S. 665.) II. The Treaty of Ghent in 1814 recognized the right, title and interest of the St. Begis Indians to Barnhart’s Island and its appurtenances. III. The right, title and interest of the St. Begis Indians to the land in question is still outstanding. (Seneca Nation of Indians v. Christie, 126 N. Y. 122.) IV. No treaty, cession deed or other conveyance of Barnhart’s Island by the St. Begis Indians was negotiated, executed or consummated. V. Compensation for the appropriation of Indian title is mandatory by virtue of the New York State Constitution and New York State legislative enactments providing therefor. (United States v. Franklin County, 50 P. Supp. 152; United States v. Tillamooks, 329 U. S. 40; Tee-Hit-Ton Indians v. United States, 348 U. S. 272; United States v. Tillamooks, 341 U. S. 48; Otoe & Missouria Tribe of Indians v. United States, 131 F. Supp. 265, 350 U. S. 848; Upper Chehalis Tribe v. United States, 155 F. Supp. 226; Goodell v. Jackson, 20 Johns. 693; Lee v. Glover, 8 Cow. 188; Crowley v. State of New York, 202 Misc. 784; Fellows v. Denniston, 23 N. Y. 420; Johnson v. M’Intosh, 8 Wheat. [U. S.] 543.)

      Louis J. Lefkowitz, Attorney-General (Paxton Blair, Donald G. Glenn and Julius L. Sackman of counsel), for respondent.
    I. The Treaty of 1796 and the cessions which formed part of it effectively divested claimants of title to Barnhart’s Island. The intention that it should have that effect is corroborated by the withholding of a defined area aptly referred to as a “ reservation ”. (United States v. Santa Fe Pacific R. R. Co., 314 U. S. 339.) II. The payments made by the State in 1856, which were amply proved, put an end to any liability to claimants which the State may ever have incurred. (Bean v. Tonnele, 94 N. Y. 381; Conkling v. Weatherwax, 181 N. Y. 258; Matter of Wood, 7 Misc 2d 410; Deshong v. City of New York, 176 N. Y. 475; Jackson v. Shaffer, 11 Johns. 513; Matter of Barney, 185 App. Div. 782; Seneca Nation of Indians v. Christie, 126 N. Y. 122, 162 U. S. 283; United States v. Franklin County, 50 F. Supp. 152; Israel v. Wood Dolson Co., 1 N Y 2d 116.) III. Any lingering right in the Indians after the Treaty of 1796 and the payment of 1856 was at most a right of occupancy which the Supreme Court of the United States has held to be not compensable in appropriation proceedings. (United States v. Santa Fe Pacific R. R. Co., 314 U. S. 339; Tee-Hit-Ton Indians v. United States, 348 U. S. 272; United States v. Tillamooks, 329 U. S. 40, 341 U. S. 48.)

      Thomas F. Moore, Jr., and Edward L. Byan for Power Authority of the State of New York in support of respondent’s position.
    I. Neither the question of capacity to sue nor the question of defect of parties is at issue on the appeal to this court. (Flagg v. Nichols, 307 N. Y. 96; Nicholson v. Greeley Square Hotel Co., 227 N. Y. 345; Matter of Pessano, 269 App. Div. 337, 296 N. Y. 564.) II. In the absence of the recognition by the State of Indian ‘ ‘ title ’ ’ based upon such occupancy and use, the lands may be appropriated by the State without payment of compensation. Unrecognized Indian ‘ ‘ title ’ ’ is not a compensable interest in real property. (Tee-Hit-Ton Indians, v. United States, 348 U. S. 272.)
   Froessel, J.

Plaintiffs are the duly elected chiefs of the St. Regis Tribe of the Mohawk Indians, and have instituted this action on behalf of all the members of the tribe. Their claim is that the State of New York has appropriated, pursuant to title 1 of article 5 of the Public Authorities Law, certain ‘1 land, bed of St. Lawrence River, and water rights, including inherent and intrinsic water power in such river * * * to which the claimants allege original title which has never been extinguished”. Claimants assert “immemorial rights arising prior to white occupation, consisting of immemorial possession and use including original title to those rights which are the subject of the appropriation by the State of New York ”.

In order to ascertain the basis of the claim of the St. Regis Tribe to the land in question, it is necessary to review the relevant historical background. Prior to the Treaty of Paris entered into at the conclusion of the Revolutionary War, the St. Regis Indians used and occupied land on both sides of the St. Lawrence River, as well as islands in the river, among which is one subsequently known as Barnhart’s Island. This island, to which the St. Regis Tribe here claims title, contains 1,692 acres. In 1783 the United States and Great Britain entered into the Treaty of Paris (8 U. S. Stat. 80-83), in article II of which it was provided that the part of the northern boundary of the United States here relevant should be ‘ ‘ along the middle of ’ ’ the St. Lawrence River.

This boundary did not provide a satisfactory guide for the ascertainment of sovereignty over various islands located in the river. With respect to Barnhart’s Island, the record shows that more than nine tenths of the water of the river flowed on the southeasterly side of the island; that a large portion of the island is north of the 45th degree of north latitude (one of the boundaries); that the branch of the river between the island and Canada “ could sometimes in the lowest water be forded * * * [and] was never navigable for boats drawing •over two feet of water [while] * * * any vessels navigating the upper lakes, can always navigate the channel between the Island and Massena ”.

Thus it is not surprising that after the 1783 treaty Great Britain governed Barnhart’s Island, and that it was treated as a part of the township of Cornwall, the inhabitants of said island being taxed by Canada, and serving military duty at Cornwall. This administration of the island continued until 1821-1823.

In 1791 one Alexander Macomb applied to the Land Office of the State of New York for the purchase of a tract of land in northern New York State which was to include “ all the Islands belonging to this State fronting the said Tract in * * * the river St. Lawrence ”, The surveyor general who was to survey the area covered by the application reported to the Governor: “As it is uncertain which Islands in the River St. Lawrence fall on the New York side of the Line established by Treaty between the United States and the British Government none of those contained in the Contract with Mr. Macomb are comprehended in the above Return ’ ’. On March 3, 1795, letters patent for this part of the Macomb tract were issued to one Daniel McCormick, to whom rights were transferred by Alexander Macomb.

In May, 1796 the State of New York entered into a treaty with tribes of Indians denominating themselves as the Seven Nations of Canada. In that treaty the tribes, including the St. Regis Tribe, agreed to “ cede, release and quit claim to the people of the State of New York forever All the Claim Right or Title of them * # * to Lands within the said State Provided nevertheless that the Tract equal to six miles square reserved in the sale made by the Commissioners of the Land Office of the said State to Alexander Macomb to be applied to the use of the Indians of the Village of St. Regis shall still remain so reserved”. Compensation in addition to the six square mile tract was provided to be paid to the Seven Nations or Tribes of Indians “ for the extinguishment of their Claim to all Lands within the State ’ ’.

In 1806, and again a year later, the question as to which islands in the St. Lawrence River were covered by the letters patent issued to McCormick was brought before the Land Office and the Legislature, the result of which was a request to the Governor “ to adopt and pursue such measures as may be deemed most advisable for effecting the determination and establishment of a line of territory and jurisdiction between this state and the British government on lake Ontario and the river St. Lawrence.” These efforts did not afford McCormick the desired relief, so he asked in 1814 that, until the boundary line was settled, a survey should be made to show which of the islands were “ indisputably within the limits of this state”. In 1817, having obtained only one island in the St. Lawrence, he sold his rights to the remaining islands to David Ogden.

In the meantime, following the War of 1812, and in December, 1814, the United States and Great Britain entered into the Treaty of Ghent (8 U. S. Stat. 218-223). Article Sixth of said treaty provided: Whereas, by the former treaty of peace that portion of the boundary of the United States * * * was declared to be ‘ along the middle of said river * * And whereas doubts have arisen what was the middle of the said river, lakes and water communications, and whether certain islands lying in the same were within the dominions of his Britannic majesty or of the United States: In order, therefore, finally to decide these doubts, they shall be referred to two commissioners * * *. The said commissioners shall, by a report or declaration * * # designate the boundary * * * in conformity with the true intent of the said treaty of one thousand seven hundred and eighty-three.” Article Eighth in effect stated that the rights of the Indians are not to be affected by the resettling of the boundary. On June 18, 1822, the commissioners made their report (8 U. S. Stat. 274-277), in which they decided that Barnhart’s Island belonged to the United States.

We here note that in a report made by a committee of the New York State Assembly in 1850 it was stated: “ It appears to your committee that prior to the settlement of the boundary line under the Treaty of Ghent, Long Island, at the outlet of Lake Ontario, lying between Cape Vincent in Jefferson County, and Kingston in Upper Canada, was claimed by both the British and American authorities, and that they exercised concurrent jurisdiction over the same. That the settlement of said boundary line, as a compromise and by way of remuneration for the claims of the United States to the said Long Island, Great Britain gave up Barnhart’s Island to the United States. Your committee are fully satisfied that Barnhart’s Island was ceded to the United States by way of compromise and exchange and not by virtue of the treaty of 1783.”

Likewise in 1856, an Assembly committee stated: ‘ ‘ That the commissioners, in retracing the boundary line between the United States and the British Provinces, under the Treaty of Ghent,.in 1822, exchanged these two islands [Baxter and Barn-hart] for others in the St. Lawrence river, and they were thereby declared to be within the jurisdiction of the United States.”

In 1823 David Ogden applied for and received a patent from the State of New York covering Barnhart’s Island as well as others in the St. Lawrence River. At this point, then, title to Barnhart’s Island would appear to be vested in Ogden.

We now turn to the conduct of the St. Regis Tribe with respect to Barnhart’s Island. In 1795 the tribe gave a lease of the whole island to George Barnhart for 999 years at an annual rental of $30. In 1806 the Indians renegotiated the lease, increasing the amount of the rental to $60 per year and shortening the term to 99 years. In March, 1817 the lease was again renegotiated, the amount of the annual rental further increased to $150. There is evidence in the record that ‘ The Indian lease to Barnhart was recognized by the British government as conferring title according to its terms ”. Rents were collected from the tenants by officials of the Canadian Government from 1804 to 1822. Thus in 1823 when the State of New York issued letters patent for Barnhart’s Island, that island was occupied by tenants who had substantially improved property thereon.

Shortly after the letters patent were issued to David Ogden, he instituted an ejectment suit against the then occupants. In the 1850 report of the committee of the Assembly, it was stated: ‘ ‘ Upon the trial, the defendants offered their Indian title in evidence, but the court held that they could not look behind the patent of the State, but were bound to recognize the sovereignty of the State, and its patents. Judgment of ouster was therefore had against the defendants. They were then forced to purchase of the Messrs. Ogden, or abandon their farms. The Ogdens charged them the full value of. the land with their improvements added; thus compelling them to pay for what their own labor and money had accomplished. ’ ’ There was evidence that the entire island was sold to John Barnhart in 1826 for $11,434.75, but that he defaulted in payments.

In 1843 the Commissioners of the Land Office of the State of New York, to whom a petition of the St. Regis Indians “ for a conveyance to them of certain islands in the River St. Lawrence, or an equivalent in money” was referred, reported: “ the State of New-York has been the owner of the fee to these islands since the treaty of 1783; that they as early as the year 1791, exercised acts of ownership over the same by an actual contract of sale; that such claim of title has been uninterrupted by the repeated recognition of the validity of such original contract of sale up to the time of the execution of the same; that the delay of such execution upon the part of the State was in no manner induced by a want of confidence of the State to the title to these islands, but from the difficulty of ascertaining the true lines of territory and jurisdiction between the State of New-York and the British Provinces; that in the year 1796, ‘ The Seven Nations of Canada ’ whom the petitioners would claim to represent, by a solemn treaty then made and ratified, quit-claimed all their right and title to all lands located in the State of New York; by means of which, the whole title of such Indians to any lands within this State became forever extinguished, except to such small portion in such treaty reserved for the use in such treaty expressed.

“ The commissioners of the Land-Office are of the opinion that the title to these tribes was not the less extinguished by the treaty of 1796, which was a general quit-claim of title to all lands within the State from the fact that the lines of boundary beween this State and the British Provinces had not been definitely settled, and considering the character and object of the reservation made in such treaty, the reference therein to the contract made with Macomb in 1791 for the description of such reservation, and that the representatives of this original contract were parties to this treaty, they are no less satisfied that such general extinguishment of title is equally within the spirit as the letter of such treaty. The Commissioners of the Land-Office are therefore of the opinion that the petitioners have neither in law or equity the least claim to the relief sought in their petition.”

In direct conflict with the views above expressed was a report of an Assembly committee on claims made by George Barnhart for compensation in 1850. That committee impliedly referred to the 1843 report of the Land Office Commissioners when it said: “It was for a long time .contended in the case of Asa Baxter, who held Baxter’s Island in the St. Lawrence until 1823, under precisely the same circumstances as are here narrated, that the State acquired the title to that island by a treaty made with the Indians in 1796. It is presumed that the State patented the island now in question under the same claim. The legislature of 1847, however, repudiated the claim of the State to Baxter’s island under the Indian treaty of 1796, and appointed commissioners to appraise his damages by reason of his eviction by the Ogdens. An act for the payment of the award of the commissioners has passed both houses at the present session. The claim of petitioners is a more strong-one if possible than that of Baxter. While his island was found to be within the limits of this State by the boundary as established by the treaty of 1783, and consequently within the letter of the Indian treaty of 1796, Barnhart’s island only became the property of this State by the treaty of Ghent.” An act was passed authorizing the appointment of commissioners, and the commissioners reported a total amount of damages of $6,597. That report stated that the title of the Barnharts was “ derived in the first instance from an Indian lease * * * which lease was recognized as valid by the proper authorities of Canada ”. They also appear to have recognized that the fee interest characterized as “ a remote reversion at the end of nine hundred and ninety-nine years ” was in the Indians.

In January, 1851 the Commissioners of the Land Office submitted a report to the Assembly dealing with the rights of the St. Regis Tribe in relation to Barnhart’s Island. They there stated:

“ The Commissioners have no peculiar means of knowing whether the two islands were within the jurisdiction of the United States before the treaty of Ghent, but it is fair to assume from the instructions to Mr. Ogden, the surveyor, that they were not included. * * *
“ If the lands fell within the jurisdiction of the United States by the line established under the treaty [of Ghent], the Commissioners are clearly of the opinion that the State had no right to make any grant to the Ogdens, by which the Indians were deprived of any rents or advantages, without making-compensation. ’ ’

The report then continued to state the facts relating to the leasing of the island by the Indians to the Barnharts, and it concluded that if the existence of these leases could be shown, “the Commissioners entertain no doubt that justice and good faith to the Indians require the State to pay to them an annuity equal to the annual amount of rent. * * * It is probable that the Legislature will be called upon to pay a large amount of damages under the appraisal by the commissioners.”

The report of the Committee on Indian Affairs made in 1856 stated: “ The committee regard the title of the said Indians to said islands as unquestioned. * * * The justice and propriety of the above appropriations [to the Barnharts and to Baxter] was fully and elaborately discussed and conclusively shown * * *. The rights of the lessee cannot well be sanctioned and respected without, at the same time, sanctioning the title of the lessor. This proposition is too plain to the comprehension of the most indifferent mind, to require elaboration by the committee.

1 ‘ It has long been the avowed, as well as the practical policy of this State, at least to deal justly by the remaining remnant of the aboriginal inhabitants of this country. We are their guardians, they our wards. We are increasing, they fast decreasing, in numbers and estate.

“In any view which the committee can take of the subject referred, they can see no good reason why an appropriation should not be made to the petitioners equal to the annual rents from 1822 to this time, together with a sum which, put at interest at the rate of 6 per cent, would produce the rents reserved; or a sum which in 1822 would have extinguished the Indian title to said islands, with interest thereon from that time, which, by the proofs, would have been $1,000 for each island—

Being ............................................ $2,000

Add interest at 6 per cent for 33 years................ 3,960

$5,960

Or thus:

The rents, at $120 per year for 33 years.............. $3,960

To which add $1,000 for each island, as commutation

for title and rent............................... 2,000

$5,960”

In April, 1856 an Act authorizing the grant of said $5,960 “ for the payment and in full of the claim of the St. Regis tribe of Indians, for the sale by the State of two certain islands in the river St. Lawrence, known as Barnhart’s and Baxter’s islands, which belonged to the said tribe ”, was passed by the Legislature. The Act further stated:

11 The above sum shall be paid by the treasurer, on the warrant of the comptroller, out of any money in the treasury not otherwise appropriated, to the order of Southerland Colquhoun, the agent of the British portion of the St. Regis tribe of Indians, and William A. Dart, of Potsdam, in the county of St. Lawrence, to be by them distributed to the said tribe * * *
1 ‘ The said Southerland Colquhoun and William A. Dart shall before receiving any portion of the sum hereby appropriated, execute and file in the office of the comptroller of this state, a bond ’ ’.

The ledger of the Comptroller indicates that on April 30,1856 $5,960 was paid out to ‘ ‘ St. Regis Indians, in full of their claim for the sale by the State of two Islands in the River St. Lawrence, known as Earnhardt’s & Baxter’s Is.”. An affidavit in the record indicates that a search of the records of the Department of Audit and Control has failed to locate (1) any bond executed by Colquhoun and Dart; (2) an account to the Comptroller of the appropriation of the said $5,960, or any vouchers relating to the distribution of that sum.

The situation remained thus, with the Indians asserting no claim to title to the island until after the State appropriated it for the development of a power project, after which the present claim for $33,800,000 was made. The State moved to dismiss the claim on the grounds that (1) it did not state a cause of action; (2) claimants lacked legal capacity to sue the State of New York; (3) there was an incurable defect of parties, and (4) any claim which had existed had been released. The Court of Claims denied the motion, finding that there were triable issues of fact on the first and last grounds. The Appellate Division reversed on the ground that the Indians had no legal title to the real property in question, and that in any event the record showed that they had released whatever claim they had.

On this appeal, the State concedes that the claimants have capacity to sue, and they do not argue that there is a defect of indispensable parties. They do contend that (a) the treaty of 1796 divested claimants of title to Barnhart’s Island; (b) the payments by the State in 1856 put an end to any liability which the State may ever have incurred, and (c) any lingering right in the Indians after 1856 was at most a right of occupancy, which the Supreme Court of the United States has held to be not compensable in appropriation proceedings. The St. Begis Tribe argues that the right, title and interest to Barnhart’s Island is still in them, and that compensation for that property interest is mandated by the New York State Constitution.

We turn now to the first of the two grounds urged in this court as a basis for dismissal of the claim, to wit, that it is legally insufficient. This point having been raised by a motion under subdivision 4 of rule 106 of the Buies of Civil Practice, we may not consider matters beyond the face of the complaint except insofar as we may take judicial notice of them by common law or by statute (Bichardson on Evidence [8th ed.], §8 et seq.-, Civ. Prac. Act, § 344-a) and thereby read them into the complaint (Pfleuger v. Pfleuger, 304 N. Y. 148; Walsh v. Trustees of New York & Brooklyn Bridge, 96 N. Y. 427, 438; First Nat. Bank of Genoa v. American Sur. Co., 239 App. Div. 282, 284). Affidavits may of course not be considered (Purdy v. McGarity, 262 App. Div. 623; King v. Krischer Mfg. Co., 220 App. Div. 584). The rule is otherwise as to that phase of the motion brought under subdivision 6 of rule 107, but the facts brought to the court’s attention under that rule may not be considered under subdivision 4 of rule 106 of the Buies of Civil Practice (Benvin & Co. v. American Safety Razor Corp., 282 App. Div. 922).

Considering the claim alone, then, when read in the light of relevant treaties and statutes, of which we may clearly take judicial notice, construing it liberally, and recognizing that on its challenge of the claim for legal insufficiency the State accepts as true the relevant allegations of fact and the reasonable inferences that may be drawn therefrom (Civ. Prac. Act, § 275; Garvin v. Garvin, 306 N. Y. 118, 120; Denihan Enterprises v. O’Dwyer, 302 N. Y. 451, 458; Blanshard v. City of New York, 262 N. Y. 5, 12; Dyer v. Broadway Cent. Bank, 252 N. Y. 430, 432-433), we may not say as a matter of law that no possible valid claim of title has been set forth for the reasons hereinafter stated.

Moreover, we reach the same conclusion even if we regard the official documents, such as the reports of the committees of the Legislature, as matters of which we could take judicial notice. Since both parties to this litigation, as well as the Appellate Division, seem to have proceeded upon that theory, we have considered the claim in the setting of the treaties, statutes and official documents, and its historical background. So considered, the claim presents many interesting questions.

No one disputes that the St. Regis Tribe of Mohawk Indians occupied Barnhart’s Island prior as well as subsequent to the Treaty of Paris in 1783, which treaty on its face seemed to allot that island (north of “ the middle of ” the St. Lawrence River) to the British. Was that occupancy subsequently recognized as a right of possession by the State of New York! Did the St. Regis Tribe, by the Treaty of. 1796, when it ceded its lands “ within the State ” (excepting the six square miles reserved), intend to include said Barnhart’s Island, from which they were then collecting rent through agents of the British Government? Could the Treaty of Ghent operate retroactively as of the time of the Treaty of Paris so as to extinguish any property rights of the St. Regis Tribe? What effect did the Ogden ejectment action have on the rights of the Indians, particularly in the light of the subsequent conflicting reports of the Legislative Committees? Did the Legislature of this State recognize that- the Indians had rights by appropriating a sum of money therefor in 1856? To say the least, the rights of the St. Regis Tribe in Barnhart’s Island prior to the time the Legislature made an award to them present triable issues upon this motion challenging the sufficiency of their claim.

It appears to be settled that the bare right of occupancy by the Indians (conveyable by them only to the State) is not the kind of property right which must, as a matter of due process, be compensated for by the State upon its taking title to Indian lands (Tee-Hit-Ton Indians v. United States, 348 U. S. 272, 279 et seq.; United States v. Tillamooks, 341 U. S. 48, 49; United States v. Santa Fe Pacific R. R. Co., 314 U. S. 339, 347; Kwash-Ke-Quon Indians v. United States, 137 U. S. Ct. Cl. 372, 373-374) unless, of course, a statute authorizes it (U. S. Code, tit. 25, § 70a; Otoe & Missouria Tribe of Indians v. United States, 131 F. Supp. 265, 283-285, cert. denied 350 U. S. 848; Upper Chehalis Tribe v. United States, 155 F. Supp. 226; cf. 69 Harv. L. Rev. 150-151).

The reports of the Legislative Committees, however, appear to furnish evidence of a recognition by the State of some rights on the part of the Indians in Barnhart’s Island, and thus an implied expression of intent to repay them for the taking of that interest. The policy of this State, as that of others in the Union, was to deal with the original Indian nations “ as proprietors of the soil which they claimed and occupied, but without the power of alienation, except to the governments which protected them * * *. These governments asserted and enforced the exclusive right to extinguish Indian titles to lands, enclosed within the exterior lines of their jurisdictions, by fair purchase, under the sanction of treaties ” (3 Kent’s Comm. 385 [12th ed.]). As we stated in People ex rel. Cutter v. Dibble (16 N. Y. 203, 212-213, affd. 62 U. S. 366): “ They have been treated, since our first intercourse with them, as quasi independent nations or tribes, having governments and institutions and national attributes of their own; but, both collectively and individually, feeble and helpless compared with the whites, and therefore needing constantly the protection and paternal care of the government. ’ ’ This of course does not require that compensation must be made by the courts rather than left to the consciences of the Legislatures, but it does evidence the policy of liberal dealing with the Indians on the part of the State.

As to the second ground urged by the State, the record clearly shows that the Legislature in 1856 duly compensated the St. Regis Tribe for their claim or interest in this property. It will be recalled that the Legislature had the matter brought before it by the St. Regis Tribe, who sought “ an allowance to them by the State for certain islands ”. The tribe was cognizant of the previous awards to Baxter and Barnhart for the value of their interest in the lands, and they demanded the same treatment, although it had been previously denied them.

The committee in the Legislature recognized that the practice of the Canadian Government when dealing with interests based upon long-term leases, such as were involved with regard toBarnhart’s Island, was to “ issue patents therefor to the lessees, on being paid a sum which, at an interest of 6 per cent, would produce the rents reserved”. Accordingly, the committee recommended an appropriation “ to the petitioners equal to the annual rents from 1822 to this time, together with a sum which, put at interest at the rate of 6 per cent, would produce the rents reserved; or a sum which in 1822 would have extinguished the Indian title to said islands, with interest thereon from that time ”. Appellants claim that the sum appropriated was not for the purchase of the Indians’ title but merely as a temporary compensation to them for loss of rentals on their lease. This contention is simply not borne out on an examination of the report of the Legislature in 1856.

It is further contended that there is no evidence that the sum appropriated was ever paid to the St. Regis Tribe, and that a search failed to reveal the bond to have been posted by the persons who were to have turned over the money to the Indians. The loss of this document is amply accounted for, in our opinion, by the statement of the deputy comptroller that such a record as this is not among those required by statute to be kept; and that it was felt that so long- as there was in existence a record indicating that the payment had been made, it was unnecessary to retain this document also. In this respect, the presence in the records of the Comptroller of the entry stating that the money had been paid on April 30, 1856 to the St. Regis Indians “ in full [satisfaction] of their claim” raises a presumption that such payment was made, and obligates the claimants to come forward with more than the bare assertion that the money was not so paid (Bean v. Tonnele, 94 N. Y. 381, 386; Conkling v. Weatherwax, 181 N. Y. 258, 267; Richardson on Evidence [8th ed.], § 89; see 9 Wigmore on Evidence [3d ed.], § 2517). Being so assiduous in their attempts to obtain compensation for their rights in Barnhart’s Island, it may be presumed that they would show like diligence in calling to the attention of the Legislature any failure to comply with its expressed obligations.

The final point raised by claimants is that even if the 1856 payment be intended as a satisfaction of the claims of the Indians to Barnhart’s Island, it cannot effect that result as it is in conflict with the Indian Intercourse Act (U. S. Code, tit. 25, § 177).

In Seneca Nation v. Christie (126 N. Y. 122), we stated (p. 142) with regard to that Act: “ There is room for question whether the act of 1802 was intended to apply to treaties made by a sovereign state with tribes within the state for the extinguishment of the Indian title to lands therein ”, Our language in that case was the basis of a holding in United States v. Franklin County (50 F. Supp. 152) to the effect that the provisions of the Indian Intercourse Act do not apply to the State of New York. No authority has been cited to us which would indicate a contrary result.

In any event, we have here the situation where the State of New York duly negotiated the Treaty of 1796 with various Indian tribes, including the St. Begis Tribe, in the presence of a Federal Commissioner. Thereafter a dispute arose over the meaning and application of the terms of that treaty. Certainly the State had the right to settle this dispute under that treaty through a legislative grant of compensation (see N. Y. Const., art. I, § 13). Thus this was not the negotiation of a new purchase of property from an Indian tribe, but rather the adjustment of a claim that had arisen as the result of the ambiguous language of the 1796 treaty.

The judgment should be affirmed, without costs.

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

Judgment affirmed.