author: Fuld, J. Dye, J.

text:
    The People of the State of New York, Respondent, v. Herbert Jackson, Appellant.
    Argued October 21, 1959;
    decided December 30, 1959.

      Martin Erdmann and Florence M. Kelley for appellant.
    I. The improper comment of the assistant district attorney on summation was so prejudicial as to constitute reversible error. II. The reversible error committed by the prosecutor was neither cured nor curable by the court’s instructions. (People v. Marks, 6 N Y 2d 67; People v. Broady, 5 N Y 2d 500; People v. Lovello, 1 N Y 2d 436; Berger v. United States, 295 U. S. 78.)

      Frank S. Hogan, District Attorney (Peter R. Rosenblatt, Charles W. Manning and H. Richard Uviller of counsel), for respondent.
    I. Appellant’s guilt was proved beyond a reasonable doubt. II. The impropriety of a remark in the prosecutor’s summation does not require reversal. The remark was not prejudicial. III. The error was cured by the prompt and emphatic instructions of the court. (People v. Broady, 5 N Y 2d 500; People v. Lovello, 1 N Y 2d 436; People v. Marks, 6 N Y 2d 67; People v. Swanson, 278 App. Div. 846; People v. Kay, 278 App. Div. 927, 303 N. Y. 760; Berger v. United States, 295 U. S. 78; People v. Dixon, 231 N. Y. 111; People v. Gibson, 218 N. Y. 70; People v. Barnes, 202 N. Y. 77; People v. Wilson, 141 N. Y. 185; People v. Carborano, 301 N. Y. 39; People v. Esposito, 224 N. Y. 370.)
   Fuld, J.

On the night of January 17, 1958, two men committed a robbery in a liquor store operated by Patrick and Francis O ’Brien. The appellant Jackson and another defendant were indicted for the crime and at the trial, held some eight months after its commission, both O’Briens identified Jackson as one of the robbers. Significantly, however, Patrick O’Brien had not picked Jackson out of a line-up which he had viewed seven months earlier and only two weeks after the robbery.

Whether the appellant was one of the robbers was, so far as he was concerned, the only issue in the case, and the evidence that Patrick O’Brien, who identified him at the trial, had failed to select him from the line-up was unquestionably a factor of prime importance to the defense. However, the effect of this earlier failure to identify him was dissipated, completely destroyed, by a statement of the prosecuting attorney during his summation. Without any evidence whatsoever to support him, he blandly assured the jury that Patrick had “ recognized ” the appellant in the line-up and that, although “he didn’t ” pick him out, there was good reason for this, adding,

‘ ‘ I will be more than happy to tell you * * * why after this trial is over.”

This was a serious impropriety, an error both egregious and inexcusable, whose potential for prejudice was incalculable. (See, e.g., People v. Lovello, 1 N Y 2d 436, 438-439; People v. Tassiello, 300 N. Y. 425, 430; see, also, People v. Ochs, 3 N Y 2d 54, 57-58.) On the only issue in the casé, identification, the district attorney proceeded to place his own veracity and official position in the scales against the accused. Only one of the three trial witnesses had been requested to view the line-up and he had failed to pick the appellant from it. This might have given the jury pause as to the accuracy and validity of the trial identification and created considerable doubt as to whether the appellant was one of the robbers. But what possible chance could he have had once the prosecutor had assured the jurors that O’Brien had in fact recognized the appellant and that he would tell them the reason why the witness did not pick him out, after the trial was over?

It is urged that this impropriety was ‘1 harmless ’ ’ because it had not been repeated, because it had been “ confined to a single isolated instance ” in a case where there was £ £ overwhelming evidence of guilt” (opinion of Dye, J., p. 146).

We cannot agree with this evaluation of the proof. It is quite true that the two O’Briens testified at the trial that they were sure that the appellant was one of the men who held them up; but, as we have already observed, Patrick, the only witness who viewed a line-up, and that shortly after the commission of the crime, admitted that he had failed to pick out the appellant Jackson. It is also true that another witness, a patrolman, testified that Jackson was the man whom he had pursued on the night of the robbery; but he acknowledged that his only view of the suspect was “ a glimpse * * ' * for not more than two or three seconds ’ ’ and, in addition, he admitted that he had expressed a doubt, immediately after the chase, as to his ability to identify that person. This is hardly ‘‘ overwhelming ’ ’ proof on the issue of identification.

However, even if the proof could be so considered, we do not see how we may treat the impropriety complained of as harmless error. Although section 542 of the Code of Criminal Procedure directs an appellate court to disregard “technical errors” not affecting “ substantial rights ”, it could never have been the legislative design that a court should regard errors as technical, however grave they may be, upon the hypothesis that, in any event, the jury correctly decided the case. Observing that “ Such a course would tend to abolish ‘ all forms of law taught by experience to be necessary to the protection of the innocent ’ ’ ’, this court recently wrote, 1 ‘ convincing though the evidence of guilt may seem to be, we could affirm only if we were to announce a doctrine that the fundamentals of a fair trial need not be respected if there is proof in the record to persuade us of defendant’s guilt. We are not prepared to announce such a doctrine.” (People v. Mleczko, 298 N. Y. 153, 162-163.)

Nor is it possible to hold that the instructions given by the court erased the impression made on the jurors’ minds or eliminated the harm thereby occasioned. (See People v. Carborano, 301 N. Y. 39, 42; People v. Robinson, 273 N. Y. 438, 445-446.) If instructions could have such an effect, then, we have declared, “the prosecution would be in a position to violate the rules of fair conduct with impunity, secure in the thought that the verdict, if one of guilt, would not be upset as long as the judge simply directed the jury to disregard what had occurred.” (People v. Carborano, 301 N. Y. 39, 43, supra.)

Although we may not be able to say that the prosecutor’s remark on summation actually brought about the appellant’s conviction, there can be little doubt that it must have had a tremendous impact upon the jurors in their deliberations. Some indication of this is found in the fact that the jury did not return its verdict of guilt against the appellant until more than eight hours after it had retired and in the interim, between retiring and verdict, it had actually reported to the court that, while a verdict had been reached as to his codefendant, ‘1 agreement ” on a verdict with respect to the appellant himself “ looks doubtful

In the light of all of the circumstances, we may not, therefore, treat the error as technical or harmless and disregard it.

The judgment should be reversed and a new trial ordered.

Dye, J.

(dissenting). I dissent and vote to affirm. I agree with the general rule that improper comments during summation may warrant a new trial whenever the defendant’s rights before a jury are prejudiced, particularly when the prosecutor makes himself an unsworn witness and supports his case by his own veracity and position (People v. Tassiello, 300 N. Y. 425; People v. Lovello, 1 N Y 2d 436). However, we have deemed it harmless when the impropriety is confined to a single isolated instance which, under the rulings of the court, could not have prejudiced the jury in the light of overwhelming evidence of guilt (People v. Broady, 5 N Y 2d 500 [April, 1959]; People v. Marks, 6 N Y 2d 67 [May, 1959]).

On this record, the complained of prejudice falls more nearly into the pattern set by the line of cases exemplified by Broady and Marks than by Tassiello and Lovello. In both the latter cases there was a continuing and persisting course of intemperate behavior on the part of the prosecutor to which the court gave acquiescence and substance by ruling against the defendant’s objections.

Here, we note a distinguishing difference, since the complained of impropriety is limited to a single isolated instance found only in the words ‘ I will be happy to tell you the reason why after the trial is over ”, This was met, as it was in Broady and Marks, by a motion for a mistrial which the court denied, and by objection which the court sustained, followed by a prompt, clear and adequate instruction to the jury to disregard the reason why, or the fact that Mr. Jones or any one else knew the reason why, as well as granting the defendant’s request to charge in respect thereto.

Under the circumstances of this case, the uncontradicted and overwhelming evidence of guilt, the single slip of the tongue, the prompt ruling by the court’s instructions to the jury, made on his own initiative as well as pursuant to the defendant’s request to charge, we are satisfied, as was the court below, that the comment, concededly improper, was too inconsequential to adversely affect any substantial right of the defendant (Code Crim. Pro., § 542).

The judgment of conviction should be affirmed.

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

Judgment reversed, etc.


source: Caselaw Access Project

author: Burke, J.

license: Public Domain

text:
    The People of the State of New York, Respondent, v. Herbert Peetz, Jr., Appellant.
    Argued October 21, 1959;
    decided December 30, 1959.

      Arnold E. Wallach, Aaron B. Z. Silver and Chester E. Kleinberg for appellant.
    I. The evidence before the Grand Jury was insufficient to support the indictment and the motion to dismiss the same should have been granted. (People v. Ferraro, 293 N. Y. 51; Matter of Roge v. Valentine, 280 N. Y. 268; People v. Sandgren, 302 N. Y. 331; Dow v. State, 77 Ark. 464; State v. Vinso, 171 Mo. 576; Weathersby v. State, 29 Tex. Cr. Rep. 278; People v. Nitzberg, 289 N. Y. 523; People v. Glen, 173 N. Y. 395.) II. The motion made on behalf of appellant to dismiss the indictment at the end of the prosecution’s prima facie case should have been granted; that by reason of the denial thereof and the denial of the motion to dismiss the indictment, the ensuing consequences thereof prejudiced appellant so that the plea of assault in the second degree was and is a nullity. (People v. Scott, 3 N Y 2d 148; People v. James, 4 N Y 2d 482; People v. Kugelman, 188 Misc. 135; People v. Baltusnik, 165 Misc. 173.) III. Appellant’s plea of guilty to assault in the second degree is a nullity because the facts alleged in and underlying the indictment could not support such conviction. (People v. Katz, 290 N. Y. 362; People v. Osinski, 281 N. Y. 129; People v. Simone, 277 App. Div. 887; People v. De Garmo, 73 App. Div. 46, 179 N. Y. 130.)

      Edward S. Silver, District Attorney (William I. Siegel and David Diamond of counsel), for respondent.
    I. The order denying the motion to dismiss the indictment was proper inasmuch as the evidence before the Grand Jury was sufficient as a matter of law. (People v. Eckert, 2 N Y 2d 126; People v. Donahue, 309 N. Y. 6; People v. Silinsky, 235 App. Div. 289; People v. Leary, 305 N. Y. 793; People v. Lewis, 282 App. Div. 267; People v. Nicoll, 3 A D 2d 64.) II. Appellant’s motion to dismiss the indictment at the close of the People’s case was properly denied. III. The plea of guilty to assault in the second degree upon an indictment charging manslaughter in the second degree was legal. (People v. McGoldrick, 283 App. Div. 948, 284 App. Div. 978; People v. Zielinski, 247 App. Div. 573; People ex rel. Bianculli v. McDonnell, 278 App. Div. 782, 302 N. Y. 922.)
   Burke, J.

The basic question presented is the sufficiency of the evidence supporting an indictment returned by the Kings County Grand Jury charging the defendant with the crime of manslaughter, second degree. He is accused of throwing his infant son into a baby carriage while in the heat of passion, thereby inflicting fatal injuries. The defendant’s motions to dismiss the indictment before trial following the inspection of the Grand Jury minutes and to dismiss the indictment at the trial for the failure of the prosecution to prove a prima facie case were denied.

The degree of evidence sufficient to warrant the return of an indictment by a Grand Jury is defined in the statute as the condition “ when all the evidence before them, taken together, is such as in their judgment would, if unexplained or uncontradicted, warrant a conviction by the trial jury”. (Code Grim. Pro., § 251.)

In the clearest of terms the statute states that the determination as to whether a trial jury would convict upon the evidence is specifically relegated by the Legislature to the judgment of the Grand Jury (People v. Eckert, 2 N Y 2d 126, 129). In order to form such a judgment, however, the evidence presented to the Grand Jury taken together must be the equivalent of prima facie proof that the crime charged has been committed by the defendant (People v. Silinsky, 235 App. Div. 289, 293). If the legal evidence does not establish the commission of the crime, it would be manifestly impossible for a Grand Jury to arrive at a judgment that a trial jury might convict.

A homicide is manslaughter in the second degree 1 ‘ when committed without a design to effect death * * * [i]n the heat of passion, but not by a dangerous weapon or by the use of means either cruel or unusual ” (Penal Law, § 1052, subd. 2).

The minutes of the Grand Jury contain the following pertinent testimony. The Acting Medical Examiner of Kings County read from the medical report of the autopsy which revealed the cause of death. According to the medical report, it was due to a fractured skull, subdural and subarachoid hemorrhage. A stenographer from the District Attorney’s office identified statements recorded by him which had been made by the defendant to an Assistant District Attorney. The detective who arrested the defendant testified that he was present at the interview conducted by the Assistant District Attorney. He said that the defendant stated that upon entering his home on the evening of June 3,1956, between 8:00 and 8:30 p.m., he was greeted by his wife in a costume which he criticized. He admitted that he was annoyed because he had on prior occasions advised her that he expected his wife to be tidy. On this occasion his wife was sitting in the living room holding the infant in her arms, while their daughter, then aged 17 months, played on the floor beside her. After a brief discussion defendant took the infant and dropped him in his carriage which was standing nearby in the kitchen. When the defendant returned to the kitchen later, the baby was gasping for breath. Following fruitless efforts to resuscitate the baby, defendant called a priest, who in turn notified the fire department. The firemen administered oxygen in vain.

The sworn testimony of the defendant’s wife before the Grand Jury presents the events leading up to the child’s death in this manner. She said her husband carried the child into the kitchen. She was with him and watched.him “ lay the baby in the carriage # * * just like he always do ”. When Mrs. Peetz, Jr., was asked whether she and defendant had an argument, she replied No, we had a little discussion about how I was dressed ”. She explained that her husband expected her to be attractive when he arrived home, but that on the day of the tragedy she appeared dishevelled.

The Assistant District Attorney, dissatisfied with Mrs. Peetz, Jr.’s, replies, then endeavored to persuade her to admit that she had given different answers to questions put to her on a prior date. Mrs. Peetz, Jr., was asked many questions from a ‘ ‘ transcript ’ ’ of the alleged prior interrogation of her concerning the state of mind of the defendant and the manner in which he carried and placed the baby in the carriage. She disavowed the answers read to her from the alleged statement taken at the time of the death of the baby. She flatly denied the suggestion that she had indicated that the defendant threatened her and the baby.

The statement allegedly given by Mrs. Peetz, Jr., was unsigned and unsworn. No identification of it was offered. No evidence was given concerning the taking of the statement even though the stenographer who was supposed to have recorded the discussion was a witness before the Grand Jury. The People now concede that the prior, unsworn statements attributed to Mrs. Peetz, Jr., are not legal evidence and should not have been considered by the Grand Jury (People v. Ferraro, 293 N. Y. 51; Matter of Roge v. Valentine, 280 N. Y. 268).

With the disowned statements excluded, the cumulative probative value of the legal evidence lacks that qualitative and quantitative weight and substance essential to support an indictment for manslaughter committed in the heat of passion.

The physical facts of the baby’s death cast no light on the state of mind of defendant. The medical testimony given before the Grand Jury and that given before the trial jury contained conflicting theories in regard to the cause of the injuries to the skull of the infant. At the trial they were regarded as the effect of several blows struck before the baby was placed in the carriage while before the Grand Jury they were thought of as caused by the fall into the carriage. Either version of the reason for the injuries could be correct. But the conclusion that either act was perpetrated in the heat of passion is the product of suspicion or surmise, not proof.

The act of dropping a baby into a carriage cannot be equated with a loss of reason as the result of an overpowering emotion such as rage or passion. Nor can we accept the bare statements that defendant was “ annoyed ” or that he and his wife had a 1 ‘ discussion ” as a sufficient basis upon which an inference of heat of passion can rest. Heat of passion refers to a state of mind where overpowering emotions have obscured reason, producing impulsive actions as distinguished from voluntary conduct (People v. Nicoll, 3 A D 2d 64).

Doubtless there are many occasions when heat of passion is displayed by signs of rage or outward show of violence but, primarily being a state of mind, the existence of uncontrollable passion most often rests upon inferences (see People v. Lewis, 282 App. Div. 267, 269-270). Unless meanings of words are to be disregarded, the terms “annoyed” and “discussion” do not impart a sense of sudden or spontaneous action flowing from an overpowering emotion. If the defendant’s wife was an unreliable witness, acceptance of this fact would not supply the element necessary to establish the commission of the crime of manslaughter, second degree — the finding of heat of passion.

Since we find the indictment defective, it must be dismissed, and the fact that the evidence developed upon the trial may have been sufficient to justify a conviction cannot change that result (People v. Nitzberg, 289 N. Y. 523, 530).

The judgment of conviction should be reversed and the indictment dismissed.

Judges Desmond, Fuld, Froessel and Van Voorhis concur with Judge Burke; Chief Judge Conway concurs in the result upon the ground that the legal evidence before the Grand Jury was insufficient to warrant the inference that defendant’s actions were performed in the heat of passion and, thus, were insufficient to support an indictment charging defendant with the crime of manslaughter in the second degree; Judge Dye dissents and votes to affirm.

Judgment reversed, etc.


author: Van Voorhis, J.

text:
    The People of the State of New York, Respondent, v. Anthony Bai, Appellant.
    Submitted October 22, 1959;
    decided December 30, 1959.

      Godfrey P. Schmidt for appellant.
    The trial herein was not characterized by due process and did not afford defendant a fair hearing and, therefore, the conviction should be voided as a violation of defendant’s rights under the State and national Constitutions and under section 415 of the Code of Criminal Procedure. (State ex rel. Baker v. Utecht, 221 Minn. 145, 327 U. S. 810; Rice v. Olson, 324 U. S. 786; Gibbs v. Burke, 337 U. S. 773; Smith v. O’Grady, 312 U. S. 329; Townsend v. Burke, 334 U. S. 736; Johnson v. Zerbst, 304 U. S. 458; Foster v. Illinois, 332 U. S. 134; Gryger v. Burke, 334 U. S. 728; Jencks v. United States, 353 U. S. 657.)

      Manuel W. Levine, District Attorney (Henry P. De Vine of counsel), for respondent.
    I. Guilt was established beyond a reasonable doubt. II. Defendant waived his right to be represented by counsel. (People v. Oskroba, 305 N. Y. 113; People v. Jackson, 111 N. Y. 362; Webster v. People, 92 N. Y. 422; Eighmy v. People, 79 N. Y. 546; People v. Koch, 299 N. Y. 378; People v. Snyder, 297 N. Y. 81; People v. McLaughlin, 291 N. Y. 480; People v. Palaguay, 216 App. Div. 508; People v. Kerber, 172 App. Div. 755; People v. Curtiss, 118 App. Div. 259; People v. Calabur, 91 App. Div. 529.) III. Defendant was not entitled to examine the statement of the prosecution witness. (Jencks

      v. United States, 353 U. S. 657; People v. Dales, 309 N. Y. 97; People v. Schainuck, 286 N. Y. 161; People v. Walsh, 262 N. Y. 140.) IV. Defendant had a fair trial.
   Van Voorhis, J.

Appellant was convicted in the Nassau County District Court, affirmed by the County Court, of assault third degree in violation of subdivision 1 of section 244 of the Penal Law. The affray seems to have arisen out of a dispute in the Teamsters Union. It occurred October 10, 1957 at the gasoline filling station of the Colonial Sand and Stone Company, at Cedar hurst, Long Island. The defendant tried the action for himself without a lawyer, although he asked for an adjournment in which to obtain one. He had been previously represented in the action by an attorney who withdrew, and he was given sufficient opportunity to obtain other counsel. There was no error in requiring him to proceed to trial. Other errors are presented, however, on account of which a new trial is necessary. Twenty-seven witnesses had been subpoenaed by defendant, who were excused by the Trial Judge at the opening of the trial. In a colloquy the defendant made clear that he wanted these witnesses to be present during the trial, but that he wished to have the trial postponed to enable him to procure legal counsel. He did disclaim the ability himself to examine these witnesses in court for the reason that he is not an attorney, but he later exhibited considerable forensic ability in conducting his trial, and we think that the Trial Judge erred in construing this statement as an authorization to the court to discharge these witnesses if defendant were forced to trial, as he was, without an attorney, or in concluding that their testimony, or the testimony of some of them, would not have been material and competent. It was also error for the court to state to the defendant, in the presence of the jury: “If you buy this record on an appeal, every one of those words will cost you more.” The defendant correctly replied that it was for the jury to decide whether it would be appealed. Although in the charge there was an endeavor to correct this statement, the language of People v. Velleman (247 App. Div. 172,173) applies here: “ The court’s impression of the defendant’s guilt stood out so strongly during the trial that its effect on the jury could not possibly have been cured by the formal instructions that they were not to be influenced by any opinion which the court might entertain.” A new trial was granted, “ notwithstanding that the evidence was sufficient to warrant a finding of guilt. ’ ’ Guilty or not, the defendant was entitled to a fair trial.

The statement in the District Attorney’s file of the witness Cognato did conflict in some respects with his testimony upon the witness stand, and, since a new trial is to be granted, it might well be released in part to the defendant under People v. Walsh (262 N. Y. 140). Upon the trial Cognato testified that he saw defendant strike at the complainant, but did not see whether • he hit him, observing that defendant ‘ ‘ might have went over his shoulder.” In the statement in the District Attorney’s file, Cognato had said that defendant ‘ ‘ walked over to Regaglia and I didn’t hear what was said or nothing else.” Neither will it be necessary on the retrial for the Trial Judge to call the jury’s attention to the circumstance that defendant’s former attorney withdrew from the case.

The judgment of conviction should be reversed and a new trial ordered.

Chief Judge Conway and Judges Dye, Fund, Froessel and Burke concur with Judge Van Voorhis ; Judge Desmond dissents and votes to affirm upon the ground that none of the matters considered in the majority opinion raised any questions of law in this court.

Judgment reversed and a new trial ordered.


author: Burke, J. Desmond, J.

text:
    In the Matter of Angelo Bologno, Respondent, against Bernard J. O’Connell, as Commissioner of Licenses of the City of New York, Appellant.
    Argued October 22, 1959;
    decided December 30, 1959.

      Charles H. Tenney, Corporation Counsel (Edward A. Doberman and Seymour B. Quel of counsel), for appellant.
    In the exercise of his discretion, the Commissioner of Licenses properly determined that the junk business for which a license was sought should not be located in a residential neighborhood against the protests of residents and others. Control of the location of a junk yard is an appropriate means of protecting the public health, safety and welfare. The fact that the proposed site of the junk yard is zoned so as to permit the business is not controlling. (People ex rel. Schwab v. Grant, 126 N. Y. 473; Matter of Larkin Co. v. Schwab, 242 N. Y. 330; Matter of Baldi v. Gilchrist, 204 App. Div. 425; Matter of Barresi v. Biggs, 203 App. Div. 2; Matter of Dr. Bloom Dentist, Inc., v. Cruise, 259 N. Y. 358; People v. American Wool Stock Corp., 286 N. Y. 77; Lerner v. City of Delavan, 203 Wis. 32; Hammond v. Board of Aldermen, 123 N. J. L. 553, 125 N. J. L. 627; Matter of Savage v. Commissioner of Licenses of City of N. Y., 3 A D 2d 717; Matter of Rosenberg v. Moss, 266 App. Div. 845, 296 N. Y. 595; Matter of Small v. Moss, 279 N. Y. 288; Matter of Goelet
      v. Moss, 248 App. Div. 499, 273 N. Y. 503; Matter of Picone v. Commissioner of Licenses of City of N. Y., 241 N. Y. 157; Matter of Brooklyn Parking Corp. v. Camella, 193 Misc. 811; Matter of Marburg v. Cole, 286 N. Y. 202.)

      John F. Fitzsimons for respondent.
    I. The Administrative Code of the City of New York empowers the City Planning Commission to regulate and restrict the location of trades and industries. II. The proper place for residents and others to voice their protest against the locating of a junk business is before the City Planning Commission and the Board of Estimate. III. We have in the present instance a legislative enactment that the zoning of the site under consideration is part of an over-all plan designed to promote the public health, safety and general welfare and, at the same time, we have a single individual, the Commissioner of Licenses, attempting to override this clear legislation by his personal finding that the public health, safety and welfare would be adversely affected by a junk yard business at the site. IV. Lawful rules and regulations adopted by the Commissioner for the conduct of a junk yard business in an unrestricted use district can very well give full play to the Commissioner’s exercise of his discretion in behalf of the public health, safety and welfare consonant with zoning. (Matter of Rosenberg v. Moss, 266 App. Div. 845, 296 N. Y. 595.) V. The License Commissioner’s function is to control the licensee in whatever location the licensed use is suitable under zoning standards. His control is over the conduct of the business and not over the location of it.
   Burke, J.

The Commissioner of Licenses appeals, pursuant to permission, from a unanimous affirmance by the Appellate Division of an order of Special Term directing him to issue a junk license.

The petitioner applied for a license to conduct business as a junk dealer at 122-52 Montauk Street, Springfield Gardens, Long Island, New York. The records of the Department of Licenses indicate that the neighborhood ‘ ‘ is vacant land, predominantly residential in character except for two places of business ”. However, the City Planning Commission had designated this area as an unrestricted use district, and the Borough Superintendent of Queens issued a certificate of occupancy. After a hearing, pursuant to the Administrative Code of the City of New York (§ 773a-7.0, subd. c), the application for a license was denied by the Commissioner of Licenses. The Commissioner stated that he was bound by neither the zoning designation nor the issuance of the certificate of occupancy. Both the findings of the trial court and the record before us indicate that the sole basis for the denial is the alleged harm the junk business would work on this predominantly residential area.

Since there is no question as to the petitioner’s compliance with the preliminary and formal requirements of the statute, the single issue to be determined is: whether the denial on the ground above stated is within the ambit of legislatively delegated discretion. We are not here concerned with whether the Legisture could grant such power, but solely whether they did in fact delegate this power to the Commissioner of Licenses.

The Commissioner contends that since [c]ontrol of the location of a junk yard is an appropriate means of protecting public health, safety and welfare ”, he can, in the exercise of his discretion, deny a license, regardless of a zoning designation to the contrary. We believe this attempt to exercise a general power is in excess of the authority intended to be conferred.

It is well settled that regulation of junk dealers is a valid exercise of the police power of the State (People v. American Wool Stock Corp., 286 N. Y. 77). The Legislature, of course, may directly or indirectly (e.g., via the municipality) bestow this power upon one administrative officer or tribunal, or in varying degrees, to separate administrative bodies (e.g., Commissioner of Licenses and City Planning Commission). Pursuant to such delegation the New York City Charter provides generally that: “ The commissioner shall have cognizance and control of the granting, issuing, transferring, renewing, revoking, suspending and cancelling of all licenses and permits, except in the cases with respect to which and to the extent to which any of said powers are conferred upon any other person by law, but including all licenses heretofore issued by the board of aldermen” (§ 773). In addition, the Administrative Code of the City of New York specifically requires, inter alia, that junk dealers be licensed, bonded and bound by certain restrictions (ch. 32, art. 18, §§ B32-113.0 — B32-124.0).

Since a practical modus operandi is often difficult to achieve, as well as unnecessarily cumbersome and inflexible, the Administrative Code, as in the situation now before us, quite often avoids any meticulously worded or scientifically calculated directions. Any such rigid declaration, even if liberally construed, might well provide unethical groups with the legal tightrope with which to span the very object of the enactment. In order, therefore, not to frustrate this very purpose, the Commissioner must be given a certain amount of leeway. While he may not act arbitrarily there is no doubt that he can use a certain degree of discretion in the exercise of the powers conferred (Matter of Rosenberg v. Moss, N. Y. L. J., Aug. 14, 1941, p. 343, col. 7 [Sup. Ct, N. Y. County], affd. 266 App. Div. 845, affd. 296 N. Y. 595). As we said in Matter of Marburg v. Cole: “ The law is well settled that it is not always necessary that license legislation prescribe a specific rule of action. Where it is difficult or impractical for the Legislature to lay down a definite, comprehensive rule, a reasonable amount of discretion may be delegated to the administrative officials.” (286 N. Y. 202, 211-212; emphasis added.)

However this is obviously not to be construed as a grant of limitless authority to provide for the health, safety and general welfare. Administrative discretion must be guided by an express or clearly implied standard, policy or purpose. Once a standard is established the courts cannot thereafter interfere with a reasonable determination within this sphere of discretion (Matter of Small v. Moss, 277 N. Y. 501; Matter of Larkin Co. v. Schwab, 242 N. Y. 330). Refusal to issue a license would, of course, be arbitrary and in excess of reasonable discretion if based solely upon a ground which the Commissioner may not consider (Matter of Small v. Moss, supra; Matter of Larkin Co. v. Schwab, supra).

In the light of the history and purpose of the regulation of junk dealers, it is obvious that a license is required in order to eliminate or at least curtail the readily available market for stolen property which this business affords (People v. American Wool Stock Corp., 286 N. Y. 77, supra; People v. Sobel, 198 Misc. 891; People v. Nierman, 190 Misc. 149; see, also, Administrative Code of City of New York, § B32-120.0 to § B32-123.0). The clear implication, therefore, is that delegated discretion was intended, in this instance, to be limited to this specific subject, i.e., to the prevention of the distribution of stolen goods. This is further substantiated by the fact that under section 200-2.0 of the Administrative Code the City Planning Commission, not the License Commissioner, is empowered to regulate and restrict the location of trades and industries. That section further states: 11 Such regulations shall be designed to promote the public health, safety and general welfare. The commission shall give reasonable consideration, among other things, to the character of the district, its peculiar suitability for particular uses, the conservation of property values, and the direction of building development in accord with a well-considered plan.” (Emphasis added.)

Nowhere in the sections before us is there any indication of an intention to bestow conflicting jurisdiction to these administrative bodies. If there was such an intention the Commissioner of Licenses could then subvert the ivell-considered plan of the City Planning Commission by his mere personal finding to the contrary. While the factors available to the City Planning Commission (i.e., location, suitability, etc.) need not be disregarded by the Commissioner of Licenses, they should be considered only in their relation to the purpose for which a license is required. The record nowhere indicates this vital connection and, therefore, the refusal of the Commissioner to grant the license because of the mere objections of the residents (as to possible adverse effect upon the area) is arbitrary and in excess of authority conferred. This is purely a zoning problem and should be left to that body before whom the residents can rightfully protest in this regard. (See New York City Charter, §§ 200, 201.)

Under the present zoning law there are numerous and equally obnoxious activities (e.g., crematory, fertilizer manufacturing plant, slaughterhouse, etc.) which may be conducted in this area without the necessity of a license. It would seem absurd for us to now find a legislative intent to grant duplicating powers over a junk dealer (in re: zoning) when there are so many other objectionable activities with which the Commissioner of Licenses is powerless to deal. Although the Legislature clearly intended, under its police power, to regulate the junk business in each of its distinct aspects of public concern (i.e., zoning and prevention of crime), there should be no doubt that the power to do so was divided and separately conferred.

The Commissioner cites Matter of Rosenberg v. Moss (supra) as authority for the fact that he has absolute discretion to provide generally for the health, safety and welfare of the community. The Rosenberg case (supra) is not controlling. The Commissioner there denied a license to operate a bowling alley in an area which, although residential, had been zoned for business. The applicable statute at the time stated:

‘ ‘ Bowling Alleys * * *
License required; fee; general provisions — a. It shall be unlawful to maintain a public bowling alley without a license therefor.
b. The annual license fee for each public bowling alley shall be five dollars.
c. Every keeper of a public bowling alley shall maintain good order and allow no person under sixteen years of age to bowl therein.
d. Violations. [Fine or Imprisonment].” (Administrative Code, ch. 32, tit. B, art. 7, § B32-46.0; brackets furnished.)

In addition, as today, section 773a-1.0 provided that licensees must be citizens.

The petitioner there contended that the Commissioner can inquire only into citizenship and willingness to pay the statutory fee of $5. Special Term in finding for the Commissioner held that, although not express in the statute* it is surely implied that the Commissioner is to have some discretion. On appeal, from an order of the Appellate Division affirming the order of Special Term, we affirmed without opinion. The threshold question we decided was whether the Commissioner had discretion. We concluded that he did, and that there was sufficient evidence in the record to show that such discretion was exercised within the limits delegated.

In the case at bar the Commissioner attempts to assert a general and unlimited discretion even though the applicable statute does not call for it. However salutary his ideas may be, it is beyond the scope of his authority. He may not “ arbitrarily impose limitations not contained in the statute upon his [the applicant’s] right to do business.” (Matter of Picone v. Commissioner of Licenses, 241 N. Y. 157, 161; brackets furnished.)

Accordingly, the order appealed from should be affirmed, without costs.

Desmond, J.

(dissenting). This is a mandamus-type (Civ. Prac. Act, art. 78) proceeding brought to require the New York City Commissioner of Licenses to grant a license for a junk yard in a residential neighborhood. The Commissioner, after a hearing, had held that the application should be denied on the ground that the public health, safety and welfare would be unreasonably interfered with because of “ rats, mice, noise, dirt, vermin, and trucks backing in and out of the junk shop, endangering the lives of the numerous children of the neighborhood, which is completely residential except for two places of business.” The courts below granted mandamus, apparently on the ground that there was in the licensing ordinance (Administrative Code of City of New York, §§ B32-113.0 — B32-124.0) no specific grant of authority to deny a junk shop license on such grounds. Actually, the statute states no standards or qualifications at all but it is settled law in New York that in such a situation the administrative officials charged with enforcing the licensing law have a reasonable amount of discretion. “ The requirement that a person must secure leave from some one to entitle him to exercise a right, carries with it, by natural implication, a discretion on the part of the other to refuse to grant it, if, in his judgment, it is improper or otherwise to give the required consent” (People ex rel. Schwab v. Grant, 126 N. Y. 473, 481). “ The Legislature may vest in a licensing officer a measure of discretion in granting or refusing a license ” (Matter of Small v. Moss, 277 N. Y. 501, 507). “ Petitioner does not allege, nor is there any evidence to support a claim, that the standard which has been adopted by appellants is arbitrary or unreasonable. The law is well settled that it is not always necessary that license legislation prescribe a specific rule of action. Where it is difficult or impractical for the Legislature to lay down a definite, comprehensive rule, a reasonable amount of discretion may be delegated to the administrative officials. (New York ex rel. Lieberman v. Van De Carr, 199 U. S. 552, affg. 175 N. Y. 440.) Where the administrative agency has adopted a standard as an interpretation of the broad powers granted to it by the statute, we may declare such a standard invalid only in the event that it is so lacking in reason for its promulgation that it is essentially arbitrary [citing cases].” (Matter of Marburg v. Cole, 286 N. Y. 202, 211-212.)

Therefore, mandamus will issue only when the applicant is absolutely and as matter of law entitled to his license, that is, when the refusal is completely arbitrary. ‘ ‘ Refusal to grant a license is arbitrary only when it is not based on a reasonable exercise of the discretion vested in the licensing officer. The limits of reasonable discretion are transgressed where refusal is based upon a ground which under the statute the licensing officer may not consider or upon a ground that is not supported by any evidence ” (Matter of Small v. Moss, 277 N. Y. 501, 507, supra). This record does not show that respondent Commissioner was guilty of either of those faults.

It is suggested that this petitioner’s rights to a license were somehow established by his having a certificate of occupancy for the premises and by the zoning of the area as ‘ ‘ unrestricted ’ ’. The granting of such a license, however, involves considerations different from those which apply to the zoning of a whole area or to an authorization to occupy a building for a certain purpose. If the zoning map and the certificate of occupancy from another city department established petitioner’s rights to run a junk yard business at this location, there would be no point to having a separate junk yard licensing law. The idea is advanced, also, that the sole purpose of licensing junk yards is to control or prevent dealing in stolen property (see People v. American Wool Stock Corp., 286 N. Y. 77). Presumably that was one of the reasons for this licensing requirement but it does not follow that the Commissioner, with no attention at all to public morals, health or safety, must issue a license to any applicant who is not a proven receiver of stolen property.

The undesirability of having an unsightly junk yard in an otherwise attractive area is well known and has been recognized in similar licensing laws in numerous other States (see, for instance, State v. Kievman, 116 Conn. 458; Lerner v. City of Delavan, 203 Wis. 32; City of Rochester v. Bemel, 181 Minn. 596; City of South Pasadena v. City of San Gabriel, 134 Cal. App. 403, cert, denied 292 U. S. 602). Our own court has gone very much farther as to junk yards. We have held generally valid (Matter of Harbison v. City of Buffalo, 4 N Y 2d 553) a Buffalo ordinance which directed that an existing junk yard, valid under zoning law as a pre-existing nonconforming use, be denied a further license after expiration of a three-year period. This was a court-approved recognition of the peculiarly objectionable and deleterious character of such businesses in residential neighborhoods.

Apart from all this, the grant of mandamus here is directly in conflict-with Matter of Rosenberg v. Moss (296 N. Y. 595). Rosenberg had been denied a bowling alley license. The decision in his case is a square holding that the New York City Licensing Commissioner has power, regardless of zoning or of the absence of specific standards in the statute, to take into account the residential character of the neighborhood and the opposition of residents and community leaders. The Rosenberg case cannot be distinguished from the present one. One of the reasons for requiring that bowling alleys be licensed is to control the attendance of children (see Administrative Code, § B32-46.0), just as one of the reasons for licensing junk yards is to prevent traffic in stolen goods, but in neither case does this motivation forbid the exercise by the Commissioner of reasonable discretion to deny a license on broader grounds.

The order should be reversed and the proceeding dismissed, with costs in all courts.

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

Order affirmed.


author: Van Voobhis, J. Desmond, J.

text:
    Olive Cornell, Also Known as Olive M. Irwin, Appellant, v. Elven J. Cornell, Defendant, and Charlotte McCabe, Intervenor-Respondent.
    Argued November 25, 1959;
    decided December 30, 1959.

      F. Walter Bliss and William D. Ferguson for appellant.
    Special Term had power to grant the ex parte order of September 26, 1958, and the final judgment entered thereon, nunc pro tunc, was proper. (Matter of Automatic Chain Co., 134 App. Div. 863,198 N. Y. 618; Jackman v. Jackman, 258 App. Div. 838, 282 N. Y. 808; Mohrmann v. Kob, 291 N. Y. 181;
      Monacchio v. Monacchio, 247 App. Div. 810; Rizzoro v. Rizzoro, 260 App. Div. 881; Merrick v. Merrick, 266 N. Y. 120; Johnson v. Johnson, 198 Misc. 691, 277 App. Div. 1143; Matthews v. Matthews, 185 Misc. 1013; Phillips v. Phillips, 45 Misc. 232; Snell v. Snell, 177 Misc. 923; Petit v. Petit, 45 Misc. 156, 105 App. Div. 312; Matter of Crandall, 196 N. Y. 127.)

      John R. Davison for respondent.
    I. The action for divorce abated on the death of defendant, Elven J. Cornell, in 1938. (Atherton v. Atherton, 181 U. S. 155; Haddock v. Haddock, 201 U. S. 562; Matter of Crandall, 196 N. Y. 127; Bryon v. Bryon, 134 App. Div. 320; Jackman v. Jackman, 258 App. Div. 838; Monacchio v. Monacchio, 247 App. Div. 810; Rizzoro v. Rizzoro, 260 App. Div. 881; Johnson v. Johnson, 277 App. Div. 1143; Snell v. Snell, 177 Misc. 923; Matthews v. Matthews, 185 Misc. 1013; Phillips v. Phillips, 45 Misc. 232.) II. Assuming that the divorce action did not abate, the entry of a final judgment of divorce in 1915 was not a purely ministerial act and its failure to be then entered could not be corrected by a nunc pro tunc order made in 1958. (Erkenbrach v. Erkenbrach, 96 N. Y. 456 ; Walker v. Walker, 155 N. Y. 77.)
   Van Voobhis, J.

The question here is whether an interlocutory judgment of divorce, entered in a County Clerk’s office in 1915, created substantive rights in the plaintiff by the lapse of three months without any order intercepting the finality of the adjudication. Fifteen years after the interlocutory decree, plaintiff remarried. Eight years after her remarriage her first husband (defendant in the divorce suit) died. Her second husband died after she had cohabited with him as husband and wife for 26 years, leaving a will giving his residuary estate to the intervenor-respondent. . Plaintiff-appellant filed an election to take her intestate share against the will under section 18 of the Decedent Estate Law. Her right to do so is contested by the residuary legatee upon the ground that she is not his widow, that her marriage was illegal and void for the reason that a final judgment of divorce was not entered upon the interlocutory judgment prior to her remarriage, and during the lifetime of her first husband. When this interlocutory judgment of divorce was entered, section 1774 of the Code of Civil Procedure, after stating that no final judgment dissolving a marriage should be entered until after the expiration of three months after the filing of the decision of the court or report of the Referee, continued by stating: ‘ ‘ Within thirty days after the expiration of said period of three months final judgment shall be entered as of course upon said decision or report, unless for sufficient cause the court in the meantime shall have otherwise ordered.”

The interlocutory judgment in this case ordered that three months after the entry of this Interlocutory Judgment unless otherwise directed by the Court, entry of final judgment shall be granted that the marriage between the plaintiff, Olive Cornell, and the defendant Elven J. Cornell, be dissolved and the parties freed from all the obligations thereto ”.

The court did not order otherwise in the meantime. Based on these facts, a final judgment of divorce was entered nunc pro tunc as of the date when plaintiff was entitled to have had it entered in 1915. The residuary legatee under the second husband’s will, intervenor-respondent herein, moved at Special Term to vacate this final judgment. Her motion was denied, but was granted on appeal to the Appellate Division. The case comes to us with the final judgment of divorce stricken out.

The Court of Appeals has discussed the subject of nunc pro tunc orders in matrimonial actions (Mohrmann v. Kob, 291 N. Y. 181, 186): “ The function of orders nunc pro tunc is to correct irregularities in the entry of judicial mandates or like procedural errors. (Merrick v. Merrick, 266 N. Y. 120, 122; Guarantee Trust & Safe Deposit Co. v. Philadelphia, Reading & N. E. R. R. Co., 160 N. Y. 1, 7.) ‘ When a ruling has in fact been made but is improperly evidenced by a defective mandate, or by no mandate at all, an appropriate and suitable order or judgment which manifests the existence of a determination may subsequently be granted to take effect as of the date of such determination. ’ (Merrick v. Merrick, supra, p. 122.) However, an order nunc pro tunc may not serve to record a fact, such as a divorce, as of a prior date when the fact did not then exist. ‘ A court has no power to have a new order or ruling so entered, thus bringing into the record an element which did not previously exist. The facts must exist, and then if the record of them is imperfect or incomplete, it may be amended, but if the record shows the actual facts then no order can be properly made changing them so as to take the place of an act that was required to be previously performed. While a court may record an existing fact nunc pro tunc, it cannot record a fact as of a prior date when it did not then exist.’ (Guarantee Trust & Safe Deposit Co. v. Philadelphia, Reading & N. E. R. R. Co., supra, p. 7; Stock v. Mann, 255 N. Y. 100, 103.) ” Mohrmann v. Kob involved dissolution of marriage as of a date before a divorce action was instituted.

The basis for entry both of an interlocutory and final judgment of divorce is the decision of the court or the report of an Official Referee, and the entry of the judgment is the ministerial act of the clerk (Snell v. Snell, 177 Misc. 923), which is not altered by the circumstance that it is usually signed by the Justice of the court by whom the decision was made. ‘ ‘ The signature of the judge simply relieved the clerk from the necessity of comparing the decision of the court with the proposed judgment furnished by the plaintiffs’ Attorney, to see that they corresponded. It was no part of the judgment and was wholly superfluous. (Loeschick v. Addison, 3 Rob. 331.) The decision was the only authority for entering the judgment. The entry of judgment is the act of the clerk, and he might himself have prepared and entered it, or he could adopt the form prepared by the plaintiffs’ attorney.” (Clapp v. Hawley, 97 N. Y. 610, 614-615.) The same thing applies to divorce actions (Civ. Prac. Act, § 1174; Snell v. Snell, supra).

If the decision of the court granting this divorce be construed as providing for the entry of a separate final judgment at the end of three months, the failure to enter such a judgment was an omission to perform a ministerial act under the decisions above cited. (See, also, Christopher v. Van Liew, 57 Barb. 17, cited in Luckie v. Goddard, 171 Misc. 774, 776.) An order nunc pro tunc is not forbidden by the Merrick case (266 N. Y. 120, 122) if “ a ruling has in fact been made but is improperly evidenced by a defective mandate, or by no mandate at all”. That is the present situation. In theory of law it was the function of the clerk to prepare and enter a final judgment to carry out the decision if the interlocutory judgment did not become final by itself. It is within the power of the court at the present time to correct the failure by making the judgment final as of the time when it should have been done. The omission was a mere irregularity. It was so held in substance in Jack-man v. Jackman (258 App. Div. 838, motion for leave to appeal denied 282 N. Y. 808); Rizzoro v. Rizzoro (260 App. Div. 881) ; Matthews v. Matthews (185 Misc. 1013). See, also, Monacchio v. Monacchio (247 App. Div. 810), and Tuttle v. Tuttle (89 N. H. 219).

It makes little difference in this case whether the judgment that was entered be amended to state clearly that it was to become final as of course or a final judgment be directed to be entered nunc pro tunc. The effect is the same in either case. The court has power to direct the clerk to enter the judgment that should have been entered.

In view of that circumstance, we find no difficulty in concluding that, where there has been no order counteracting the interlocutory decree after the latter has been entered for three months, the substantive right to a divorce has matured and we see no reason on account of which the final judgment — where in form a separate instrument of that nature is called for — should not be entered nunc pro tunc in order to manifest the existence of a determination already made.

The death of appellant’s first husband in 1938 does not interfere with accomplishing this result, inasmuch as he did not die until after the divorce action had reached the stage where, on the basis of the decision of the Special Term and the entry of the interlocutory judgment, the substantive right to a divorce had already matured.

The rule is, of course, that a suit for divorce abates at the death of either party, because the marriage relation sought to be dissolved no longer exists, and a judgment cannot thereafter be entered nunc pro tunc unless the complainant was entitled to have had such judgment entered while both parties were living. After an analysis of such authority in the different States as exists on the question, the annotator (104 A. L. E. 664) concluded accurately that if the facts justifying the entry of a decree were adjudicated during the lifetime of the parties to a divorce action, so that a decree was rendered or could or should have been rendered thereon immediately, but for some reason was not entered as such on the judgment record, the death of one of the parties to the action subsequently to the rendition thereof, but before it is in fact entered upon the record, does not prevent the entry of a decree nunc pro tunc to take effect as of a time prior to the death of the party.” Cases cited in support of this statement are Matter of Cook (77 Cal. 220); Tikalski v. Tikalski (166 Minn. 468); Hoyt v. Hoyt (98 N. J. Eq. 426); Rush v. Rush (97 Tenn. 279), and Kimball v. Kimball (44 N. H. 122).

Here there was a final adjudication made during the lifetime of the parties, in that the decision of the Special Term granting the divorce and directing the entry of interlocutory judgment was filed, the interlocutory judgment was entered and the three months specified therein elapsed without the court otherwise ordering against the entry of a final judgment. No order against the entry of final judgment has ever been made. Consequently, as has been previously stated, all that remained was the mere ministerial act of entering the final judgment to conform to the adjudication of the substantive rights of the parties which had already been made and was expressed in the decision of the court and the interlocutory judgment that were already on record.

The decision by the Appellate Division vacating the final judgment entered nunc pro tunc, is based on the decision by this court in 1909 in Matter of Crandall (196 N. Y. 127). There are some distinguishing factors between Crandall and the present appeal. Here it was the plaintiff in the divorce action who made application for the entry of a final judgment nunc pro tunc. She had remarried on the strength of her divorce before her first husband died. In signing her application for the marriage license to her second husband, she stated that her last marriage ended by divorce.” Evidently the omission to enter the final judgment was inadvertent. In the Crandall case, upon the other hand, it was the plaintiff in the divorce action who had died. His former attorney sought to have the final decree entered post mortem. It was possible that Mr. Crandall, • for reasons of his own in that case, had directed that no final decree be entered. He might have changed his mind and decided that he did not want a divorce. The court said (pp. 132, 131) that he “ had placed himself before death ” in a position where it could not be said that he was entitled as of course to a final judgment, and that under the circumstances presented to us ” the entry of the final judgment was not “ automatic and of course.” No doubt of that kind could exist in the instant case.

There are statements in Matter of Crandall (supra) which go beyond the facts decided. Crandall has usually been cited in instances where it was sought by a defendant in a divorce action to amend the decree nunc pro tunc so as to permit him to remarry as of a date prior to an attempted remarriage, or where one of the parties to the divorce action has died before the lapse of three months following the entry of the interlocutory judgment. We do not question its authority in situations of those kinds. Neither are we called upon to deal at present with the result where an application to enter nunc pro tunc is made in behalf of a deceased spouse, who was plaintiff in the divorce action and omitted to have a final decree entered during life. The whole policy of entering final judgments in divorce cases, as separate instruments, was abolished by the amendment of section 1176 of the .Civil Practice Act by chapter 203 of the Laws of 1946. This, in itself, would have changed the result below in the instant case if plaintiff’s first husband (defendant in the divorce suit) had not died in 1938 before chapter 203 of the Laws of 1946 was enacted (Johnson v. Johnson, 198 Misc. 691, affd. 277 App. Div. 1143). The theory of decision which dictated the order here appealed from was abandoned long ago in New Jersey (Vogler v. Vogler, 98 N. J. Eq. 421; Hoyt v. Hoyt, 98 N. J. Eq. 426, supra). It has been abandoned in California (Macedo v. Macedo, 29 Cal. App. 2d 387; Ringel v. Superior Ct. of Alameda County, 54 Cal. App. 2d 34; Matter of Hughes, 80 Cal. App. 2d 550). Insofar as Matter of Crandall conflicts with what has been said here, it should be deemed to have been overruled.

Of course a nunc pro tunc order of this nature would not be granted in situations where vested rights are impaired, but, as was well said by the California court in Macedo v. Macedo (supra, p. 391): Here, however, we can perceive no vested rights in appellant. He had no vested right to dissolve his marriage status in any particular manner. In fact it would be the tendency of the law to validate the marriage rather than to find ways of destroying it. It confirms rather than impairs the contract.” These statements are particularly apposite to the present situation. The residuary legatee under the will of W. Hartwell Irwin, with whom appellant lived as husband and wife for 26 years, has no vested right in any technical illegality affecting that marriage. She could hardly contend that her vested rights have been destroyed.

The order of the Appellate Division should be reversed and the order of Special Term reinstated, with costs in this court and in the Appellate Division.

Desmond, J.

(dissenting). I dissent and vote to affirm. Reversal here conflicts directly and irreconcilably with the controlling case of Matter of Crandall (196 N. Y. 127) which construed this identical statute. The Crandall opinion (pp. 130-134) states two grounds for denying relief in a situation like this. Both grounds were soundly based on reason and principle and both are applicable here.

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

Order reversed, etc.


author: Fuld, J.

text:
    George F. Weaver Sons Company, Respondent, v. Frank Burgess, Appellant, et al., Defendant.
    Argued October 20, 1959;
    decided December 30, 1959.

      Leonard W. Burdick for appellant.
    I. The case of Cameron Estates v. Deering (308 N. Y. 24), relied upon by the court below, is easily distinguishable from the case now before the court and the reasoning of that case has no application to the case now before the court. (Lynbrook Gardens v. Ullmann, 179 Misc. 132, 265 App. Div. 859; Isaacs v. Hobbs Tie & T. Co., 282 U. S. 734; Town of Somers v. Covey, 2 N Y 2d 250.) II. This action to set aside deeds delivered pursuant to a city tax foreclosure proceeding may not be maintained at this time becáuse the period to bring such action expired October 3, 1948, which is the expiration of a period of six months after subdivision 7 of former section 165-h of the Tax Law became effective, as provided in that section. (Town of Somers v. Covey, 2 N Y 2d 250; City of Utica v. Weaver, 2 A D 2d 456; Meigs v. Roberts, 162 N. Y. 371; Doud v. Huntington Hebrew Congregation, 178 App. Div. 748; Dunkum v. Maceck Bldg. Corp., 256 N. Y. 275; Ford v. Clendenin, 215 N. Y. 10; Gifford v. Whittemore, 4 A D 2d 379; Matter of Kantor [Hutner], 280 App. Div. 605 ; Bryan v. McGurk, 200 N. Y. 332.) III. Neither the prevailing Justices in the Appellate Division nor the attorneys, for plaintiff have cited any case supporting the decision of the Appellate Division. (Kiamesha Development Corp. v. Guild Props., 4 N Y 2d 378; Werking v. Amity Estates, 2 N Y 2d 43; Olds v. City of Jamestown, 280 N. Y. 281.)

      Arthur J. Foley, Jr., for respondent.
    I. The ' foreclosure actions brought by the City of Utica against the property in question and subsequent judgments thereon were invalid, ’ void and of no effect. (Risley v. Phenix Bank of City of N. Y., 83 N. Y. 318; Kamp v. Kamp, 59 N. Y. 212; Losey v. Stanley, 147 N. Y. 560; MacAffer v. Boston & Maine R. R., 268 N. Y. 400; Matter of Tyd v. Local Loan Co., 183 Misc. 139.) II. The Appellate Division was justified in its decision to reverse the order of the Special Term dismissing the complaint. (Town of Somers v. Covey, 2 N Y 2d 250; Werking v. Amity Estates, 2 N Y 2d 43; Hunt v. Dekin, 298 N. Y. 575; Kiamesha Development Corp. v. Guild Props., 4 N Y 2d 378.)
   Fuld, J.

The plaintiff Weaver Sons seeks to set aside three deeds, two to the defendant City of Utica and one from the latter to the defendant Burgess. The city, proceeding under the Tax Enforcement Act (Tax Law, former art. VII-A, tit. 3), had instituted in rem tax foreclosure actions against the land of Weaver Sons in 1942 and 1943 and those actions had culminated in the deeds to the city. It is the plaintiff’s thesis that, since at the time of such foreclosure proceedings it was in a corporate reorganization proceeding under chapter X of the Bankruptcy Act (U. S. Code, tit. 11, ch. 10), no court, other than the federal court in which the reorganization was pending, had jurisdiction to affect title to the land conveyed to the city and from it to Burgess. Both defendants rely upon the Statute of Limitations as a bar, the city by an affirmative defense in its answer, Burgess by a motion to dismiss the complaint (Rules Civ. Prac., rule 107). The court at Special Term granted Burgess’ motion and dismissed the complaint; the Appellate Division reversed, denied the motion and thereafter granted leave to appeal to this court on a certified question.

The facts disclosed may be quickly stated. Weaver Sons filed a petition as debtor in a chapter X reorganization proceeding, and, in June of 1941, the United States District Court for the Northern District of New York approved the petition and issued an order restraining the City of Utica and all other creditors ‘ ‘ from prosecuting any claim, action or proceeding against plaintiff’s property ” without permission of the court. The chapter X proceeding was terminated by dismissal in January of 1952. However, the city in 1942, and again in 1943, without seeking federal court consent or approval, commenced in rem foreclosure actions against the Weaver Sons’ property pursuant to title 3 of article VII-A of our Tax Law. Default judgments were entered; tax deeds were issued to the city and, in September, 1944, the latter conveyed the property to Burgess by a deed recorded in February, 1945.

Since then, since 1945, Burgess has paid taxes on the property, which remained vacant, and expended money for its grading and upkeep. Years passed without word from Weaver Sons as to this property. Indeed, the present action was not begun until July, 1956, 11% years after Burgess had recorded his deed from the city and more than four years after the chapter X proceeding had terminated and Weaver Sons had been restored to its ordinary everyday status.

The tax foreclosure proceedings against Weaver’s property in 1941 and 1942 were concededly defective. Section 111 of chapter X of the Bankruptcy Act (U. S. Code, tit. 11, § 511) provides that “ the court in which a petition [for reorganization] is filed shall, for the purposes of this chapter, have exclusive jurisdiction of the debtor and its property wherever located.” And.section 148 (U. S.- Code, tit. 11, § 548), implementing section Ill, recites that, “ Until otherwise ordered by the judge, an order approving a petition shall operate as a stay * * * of any act or other proceeding to enforce a lien against the debtor’s property.” This latter provision has been held to effect an “ automatic ” stay (Matter of Maier Brewing Co., 38 F. Supp. 806, 815), “ one that is self-executing immediately upon the entry of the order approving the reorganization petition ”. (6 Collier, Bankruptcy [14th ed.], p. 1798; see House Hearings on H. R. 6439, 75th Cong., 1st Sess. [1937], p. 141.) It is clear, therefore, that, during the pendency of the reorganization proceeding, the federal court had exclusive jurisdiction, and no other court had the power to make any valid orders affecting the debtor’s property; in consequence, the assets of Weaver Sons were not “ subject to orders of state courts ” and could not be affected by the foreclosure proceedings without the federal court’s permission. (Doyle v. Nemerov’s Executors, 223 F. 2d 54, 56; see State of Texas v. Donoghue, 88 F. 2d 48, 51; Matter of Beach Resort Hotel Corp., 141 F. Supp. 537, 544.)

This, however, does not decide the present appeal. We must still consider whether the plaintiff is, nevertheless, barred from asserting the invalidity of the tax foreclosure proceedings by virtue of the applicable New York Statute of Limitations and, if so, whether giving such effect to a state enactment violates the supreme law of the land as reflected in the Bankruptcy Act.

Cases considering and applying Statutes of Limitation in tax foreclosure proceedings have been before this court fairly frequently in recent years (see, e.g., Town of Somers v. Covey, 2 N Y 2d 250; Werking v. Amity Estates, 2 N Y 2d 43; Cameron Estates v. Deering, 308 N. Y. 24; Helterline v. People, 295 N. Y. 245), but they did nothing more than restate the settled rules and principles of earlier decisions. (See, e.g., Meigs v. Roberts, 162 N. Y. 371; Joslyn v. Rockwell, 128 N. Y. 334; People v. Turner, 117 N. Y. 227; 145 N. Y. 451, affd. sub nom. Turner v. New York, 168 U. S. 90.) In these cases, we have differentiated between claims barred by the two-year Statute of Limitations found in our Tax Enforcement Act and those which are not. If, as in Cameron Estates v. Deering (308 N. Y. 24, supra), the taxes have actually been paid, the Statute of Limitations may not be availed of because the very foreclosure proceeding was “ a nullity ” (p. 30; see, also, Joslyn v. Rockwell, 128 N. Y. 334, 340, supra). In such cases, it is the nonexistence of the very predicate for bringing the proceeding — namely, nonpayment of taxes — which deprives the holder of a tax deed of the conclusive presumption or the short Statute of Limitations provided for by the Tax Enforcement Act.

It has never been held, however, that every ‘ ‘ jurisdictional defect ” prevents reliance upon such a limitations provision. That view was certainly not expressed, as the Appellate Division in this case apparently thought it was, in Cameron (308 N. Y. 24, supra). On the contrary, not only did we there say that, although a particular proceeding or sale might have been “ jurisdictionally defective ”, “ such defect [could be] barred as a defense * * * as not timely raised ” (308 N. Y., at p. 30), but we expressly reaffirmed People v. Turner (117 N. Y. 227, supra), in which the court held that the Statute of Limitations could be successfully urged against the claim of a jurisdictional defect. (308 N. Y., at p. 30; see, also, Town of Somers v. Covey, 2 N Y 2d 250, 257-258, supra; Werking v. Amity Estates, 2 N Y 2d 43, 51, supra; Helterline v. People, 295 N. Y. 245, 251, supra; Meigs v. Roberts, 162 N. Y. 371, 378, supra.)

The claim now advanced by the plaintiff falls under the rule of the Turner and Meigs cases, not under the rule of Joslyn or Cameron Estates, since it is based upon a lack of jurisdiction in the tax foreclosure court over the land in question and not upon the absence of a statutory condition precedent to the commencement of the tax foreclosure action itself. In other words, although the judgment in that proceeding was jurisdictionally defective, the two-year Statute of Limitations is, nevertheless, available because, according to the complaint and the affidavits before us, all the conditions precedent for initiating the statutory tax foreclosure suit were met.

Having reached this conclusion under New York law,, we are brought to a consideration of the effect or impact of the Federal Bankruptcy Act. ‘1 The States cannot, in the exercise of control over local laws and practice ”, the Supreme Court of the United States has said (Kalb v. Feuerstein, 308 U. S. 433, 439), “ vest state courts with power to violate the supreme law of the land. The Constitution grants Congress exclusive power to regulate bankruptcy and under this power Congress can limit the jurisdiction which courts, state or federal, can exercise over the person and property of a debtor who duly invokes the bankruptcy law ’ ’. This same principle applies to corporate reorganizations under chapter X, as well as to ordinary bankruptcy proceedings. (See Continental Bank v. Rock Is. Ry., 294 U. S. 648, 667-675; Campbell v. Alleghany Corp., 75 F. 2d 947, 952-953, cert, denied 296 U. S. 581.)

The problem in this case, as in all cases where the principle of federal supremacy is involved, is to determine the boundary between the federal and state power. In some cases, the line is clear. If, for instance, this court were to hold that the tax foreclosure action, brought against the land of Weaver Sons while it was in reorganization, was jurisdictionally valid, it could not be doubted that such a holding would constitute an illegal disregard of the federal power (supra, pp. 175-176). On the other hand, once a chapter X reorganization proceeding has terminated, it is equally clear that state courts are automatically revested with jurisdiction, free to proceed with a tax foreclosure against the debtor. (See Town of Agawam v. Connors, 159 F. 2d 360, 361-362, cert, denied 330 U. S. 845.) There is no authority, however, on the precise issue involved here, the operation of a state Statute of Limitations on rights which accrued to a debtor during the pendency of the cha/pter X reorganization.

Weaver’s right to set aside. Burgess’ tax deed arose in 1945 while it was in chapter X reorganization. It may well be that' paramount federal bankruptcy law requires that New York’s two-year Statute of Limitations be tolled during the pendency of reorganization. Under the facts of this case, though, we are not called upon to decide this matter, since here, even allowing that the statute did not run during reorganization, Weaver’s action is barred by the time, four and a half years, which intervened after the chapter X reorganization had come to an end. By taking into account only the period following the termination of the reorganization proceeding, it is evident that our holding does not violate any federal law or override any federal policy.

As already intimated, federal jurisdiction over the debtor and its property in a reorganization proceeding continues only until that proceeding is terminated. (See Town of Agawam v. Connors, 159 F. 2d 360, 361-362, cert, denied 330 TI. S. 845, supra.) This State cannot be said to impinge on the federal power by insisting that Weaver Sons exercise its right to set aside invalid tax foreclosure deeds within two years of the termination of the federal proceeding. This view is not only consistent with the technical niceties of the law relating to federal-state jurisdiction, but actually reflects a sound balance between the federal interest in rehabilitating a debtor and the state interest in maintaining the stability of tax titles. In this case, Weaver Sons was given an opportunity to put its economic house in order during the pendency of the reorganization over a period of 10 years. However, once reorganization terminated, it was under the necessity of vindicating whatever rights it had under state law in compliance with the state policy expressed in former section 165-h, subdivision 7, of the Tax Law. Its failure to do so bars the present suit.

The order of the Appellate Division should be reversed, with costs in this court and in the Appellate Division, the order of Special Term reinstated and the question certified answered in the negative.

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

Order reversed, etc.

      . Former section 165-h, subdivision 7, of the Tax Law, insofar as relevant, read as follows: “ Every deed given pursuant to the provisions of this section shall he presumptive evidence that the action and all proceedings therein and all proceedings prior thereto from and including the assessment of the lands affected and all notices required by law were regular and in accordance with all provisions of law relating thereto. After two years from the date of the record .of such deed, the presumption shall be conclusive * * *. No action to set aside such deed may be maintained unless the action is commenced and a notice of pendency of the action is filed in the office of the proper county clerk prior to the time that the presumption becomes conclusive as aforesaid.”

      . Although both of the cited cases involved former section 77B, they apply to chapter X of the present Bankruptcy Act, which is derived from section 77B. (See 6 Collier, Bankruptcy [14th ed.], p. 95.)