author: Chief Judge Conway. Opinion per Chief Judge Conway

text:
    In the Matter of Justin E. Driscoll, Appellant, against Troy Housing Authority et al., Respondents. Justin E. Driscoll, Appellant, v. Troy Housing Authority et al., Respondents.
    Argued March 6, 1959;
    decided July 8, 1959.

      F. Richard Decatur, Jr., and Raymond T. Finnan for appellant in the above-entitled proceeding.
    I. Driscoll is entitled to the protection afforded by section 22 of the Civil Service Law. II. The Troy Housing Authority was engaged in “ City Service” within the meaning of the Civil Service Law and constituted a Municipal Board or Commission within the meaning of subdivision 2 of section 13 of the Civil Service Law and rule V of the Rules of the Municipal Civil Service Commission of Troy. (Matter of Schaefer v. Rathmann, 237 App. Div. 491, 262 N. Y. 492; Matter of Daniman v. Board of Educ. of City of N. Y., 306 N. Y. 532; Matter of Horn v. Gillespie, 267 N. Y. 333; Matter of Dieter v. Ryan, 267 N. Y. 594.) III. Driscoll was validly classified by the Civil Service Commission of the City of Troy as exempt. (Matter of Magnotta v. Gerlach, 301 N. Y. 143; Matter of Mercer v. Dowd, 288 N. Y. 381; Matter of Glassman v. Fries, 271 N. Y. 116.) IV. The Authority is denied the right to attack the petitioner’s status. (Matter of Wolff v. Hodson, 285 N. Y. 197; People ex rel. Lazenby v. Homer, 116 App. Div. 135, 188 N. Y. 588; Matter of Corrigan v. Joseph, 304 N. Y. 172, 345 U. S. 924; Matter of Golden v. Joseph, 307 N. Y. 62; People ex rel. Joyce v. Schirmer, 253 App. Div. 845, 277 N. Y. 676; Matter of Meenagh v. Dewey, 286 N. Y. 292.) V. The special meeting of the Authority of February 7, 1957 was not called or held in compliance with the by-laws of the Troy Housing Authority under the statutes of the State of New York and was illegal, void and of no effect and that by virtue thereof Driscoll has not been validly removed from his office. VT. Only a question of law is presented by this appeal or, if a question of fact exists, the order of the Appellate Division must be reversed and a trial ordered.

      Thomas V. Kenney and Thomas F. Dougherty for respondents in the above-entitled proceeding.
    I. Driscoll was not validly appointed to his position with the Authority. (Matter of McEneny v. McKee, 236 App. Div. 140, 262 N. Y. 494; Ciulla v. State of New York, 191 Misc. 528; Pantess v. Saratoga Springs Auth., 255 App. Div. 426; Malone v. State of New York, 285 App. Div. 1218, 1 N Y 2d 837; Matter of Plumbing, Heating, Piping & Air Conditioning Contrs. Assn. v. New York State Thruway Auth., 4 A D 2d 541; Matter of Schaefer v. Rathmann, 237 App. Div. 491, 262 N. Y. 492; Matter of Horn v. Gillespie, 267 N. Y. 333; Matter of Dieter v. Ryan, 267 N. Y. 594; Matter of Bacom v. Conway, 294 N. Y. 245; Matter of Mercer v. Dowd, 288 N. Y. 381; Matter of Glassman v. Fries, 271 N. Y. 116.) II. The Authority has the right to attack Driscoll’s status. (Matter of Meenagh v. Dewey, 286 N. Y. 292;
      Matter of Wolff v. Hodson, 285 N. Y. 197; People ex rel. Lazenby v. Homer, 116 App. Div. 135,188 N. Y. 588; People ex rel. Joyce v. Schirmer, 253 App. Div. 845, 277 N. Y. 676; Matter of Corrigan v. Joseph, 304 N. Y. 172; Matter of Golden v. Joseph, 307 N. Y. 62; Matter of De Salvo v. Murray, 237 App. Div. 857, 262 N. Y. 573; Matter of Chiaverini v. Murray, 237 App. Div. 856, 262 N. Y. 573; Cassella v. City of Schenectady, 281 App. Div. 328.) III. Driscoll cannot acquire any rights because of the alleged defective notice of meeting. (Palmer v. Board of Educ., 276 N. Y. 222.) IV. No question of fact arises upon this record.

      F. Richard Becatur, Jr., and Raymond T. Fi/nnan for appellant in the above-entitled action.
    I. The contract herein is not prohibited by law. (Palmer v. Board of Educ., 276 N. Y. 222.) II. Defendant may not collaterally attack in this action the determination of the Municipal Civil Service Commission of the City of Troy. III. The court should decide this action on the merits irrespective of what the court’s decision is in the article 78 proceeding submitted simultaneously herewith.

      Thomas V. Kenney and Thomas F. Bougherty for respondent in the above-entitled action.
    The contract between plaintiff and defendant is illegal and void. (Palmer v. Board of Educ., 276 N. Y. 222; Matter of McEneny v. McKee, 236 App. Div. 140, 262 N. Y. 494.)
   Chief Judge Conway.

On April 8,1948 Justin E. Driscoll was appointed to a position with the Troy Housing Authority. On February 7, 1957 he was discharged from that position without a hearing and without the submission of any charges. He contends that as an honorably discharged veteran of World War I (his status as such being conceded), he is entitled to the protection of section 22 [now § 75] of the Civil Service Law. That section provides that such a veteran as Driscoll shall not be removed ‘ ‘ except for incompetency or miscondnet shown after a hearing upon due notice upon stated charges ”. There are certain exceptions to that provision, specifically contained in the section, which are discussed infra. At the moment it will suffice to observe that the statute could not be invoked by any person, veteran or otherwise, who holds (or held) his position in the civil service unlawfully. "Whether Driscoll held his position pursuant to law depends upon whether or not the position was in the exempt class of the service. The respondents maintain that it was not exempt, and that it would, therefore, fall into the catch-all competitive class (Civil Service Law, § 14 [§ 44]); that since Driscoll had never taken a competitive examination and had been in office far beyond the maximum periods allowable for a provisional appointment (Civil Service Law, § 15, subd. 1 [§ 65, subd. 2]), or for a temporary appointment (Civil Service Law, § 15, subd. 3 [§ 64, subds. 1, 2]), he held his position unlawfully and was (and is) entitled to no relief whatever.

In a proceeding under article 78 of the Civil Practice Act, brought by Driscoll for reinstatement to his position with back pay, Special Term granted the relief sought. The Appellate Division reversed that determination on the law, and dismissed the petition.

All of the available evidence leads only to the conclusion that the position to which Driscoll was appointed was, in civil service contemplation, that of Secretary of the respondent Authority, which position is in the exempt class of the civil service. Section 32 of the Public Housing Law is the provision which authorizes the employment of a Secretary by a Housing Authority “ subject to the provisions of the civil service law applicable to the municipality in which it is established ”, and subdivision 2 of section 13 [§ 41, subd. 1, par. (c)] of the Civil Service Law and paragraph Second of rule V of the Municipal Civil Service Rules for the City of Troy both exempt the position of Secretary. If Driscoll was appointed to and served in the position of Secretary as contemplated by both the statute and the rule, he was in the exempt class. We conclude that he was so appointed and did so serve, and our conclusion is necessitated by three items of evidence: (1) a roster card of the Troy Civil Service Commission, which carries Driscoll as “Executive Sec’y ” of the Troy Housing Authority; (2) the minutes of the Troy Housing Authority meeting of April 8, 1948, at which Driscoll received his initial appointment; and (3) the terminology of section 64 of the old State Housing Law, precursor of the present-day section 32 of the Public Housing Law.

Opinion per Chief Judge Conway

The roster card is ambiguous to the extent that it has check marks next to both “ Unclassified ” and “ Exempt ”. Of course, Driscoll could not be both, and he concedes that he was not unclassified. But the check mark next to “ Exempt ” should not be regarded as decisive, either. The check marks should both be disregarded as lacking evidentiary value because of the ambiguity they present.

Aside from the check marks appearing thereon, however, the roster card must be given evidentiary value because of the unequivocal “ Executive Sec’y ” appearing on it. Bule V of the Troy Civil Service Commission Eules provides, under paragraph “ fifth ”, that all appointments to exempt positions must be brought to the attention of the commission within 24 hours after the same are made. The card is apparently the only record on file with the commission which relates to the original appointment of petitioner Driscoll, and to the card attaches a presumption of validity as the corollary of the well-settled presumption “ that public officials, as well as boards, act honestly and in accordance with law ’ ’ (Matter of Magnotta v. Gerlach, 301 N. Y. 143, 149). A card on file with a commission supervising municipal civil service, containing data which the law requires the particular agency to forward to the commission, falls completely within the presumption that gives prima facie effect to the acts of public officials. The presumption is that the Authority gave notice of the appointment to the commission as required by the rule; the card being the only record the commission had for Driscoll, and its occupying the commission’s own file, brings on the further presumption that the commission acted in accordance with legal requirements and recorded on the card the correct data concerning Driscoll’s position as obtained from the notice that the Authority was required to give the commission. Of course, these presumptions are rebuttable, but they have in no manner been rebutted. The respondent seeks to discount the roster card because there are no marks of authentication on it. But we are pointed to no requirement that such card be signed or dated or otherwise authenticated. It was part of the commission’s files, and had been there for more than eight years. Its authenticity must be presumed, or we have presumed wrongdoing rather than honesty on the part of public officials — and without any item of evidence from which even an inference of wrongdoing could be drawn. (There is no contention that other than public officials had access to the commission’s files.) Additional evidence would be required to destroy the validity of the card, not to establish it.

The respondent urges that the card has no value because “ There is no indication that the position was specifically classified as exempt by the Troy municipal civil service commission by modification of its existing rules so as to include the position among those specifically enumerated as exempt.” To classify as exempt a previously nonexempt position, a detailed procedure must be followed which clearly was not followed here. But what seems to have been overlooked is the fact that no such procedure had to be followed here because no rule modification was necessary. Both the Civil Service Law and the Troy Civil Service Commission Rules already had provisions making the position of Secretary exempt. Rule V (Troy Civil Service Commission) reads in part: “ The Exempt Class shall include * * * Second'—One secretary of each officer, board or commission authorized by law to appoint a secretary. * * * Fourth—Other subordinate offices * * *, but no office or position shall be deemed to be in the Exempt Class unless it is specifically named in such class. * * * ” The rule is substantially the same as section 13 [§ 41] of the Civil Service Law. Apparently, the respondent would have us interpret paragraph “ Fourth ” (supra) regarding the necessity of naming each specific exempt position in a rule, as applying to the positions enumerated in the preceding three paragraphs as well as to the “ other subordinate offices ” mentioned in the same paragraph which contains the requirement (par. “Fourth”). We construe the proviso of paragraph “Fourth” as relating only to the positions mentioned there, i.e., “ other subordinate offices ”. That would mean subordinate offices “ other ” than those previously mentioned in paragraphs First, Second and Third. That construction seems unavoidable. Both the statute and the rule are worded mandatorily and not permissively. Before the requirement is arrived at which states that positions are exempt only if specifically exempted by rule, the position of Secretary is listed. And its listing follows the specific legislative instruction (§ 13) that “The following positions shall be included in the exempt class ” (emphasis supplied) and the equally specific regulatory direction (rule V) that “ The Exempt Class shall include ” (emphasis supplied). The term “ other subordinate offices ” appears in both the old statute and the rule in paragraphs separate from and coming after those in which the position of Secretary is exempted, and the proviso is integrated as part of such paragraphs, thus applying to offices other than those previously enumerated in the statute and rule, respectively. The Secretary of the Troy Housing Authority is in an exempt position, and no rule is necessary to exempt it any more specifically than it is presently exempted by statute and rule.

The question arose below as to whether the Civil Service Law applies to the position of Secretary to a Housing Authority. Section 32 of the Public Housing Law is worded, in part, thus: “ 1. An authority * * * may employ, subject to the provisions of the civil service law applicable to the municipality in which it is established * * * a secretary * * Petitioner Driscoll argued (and argues) that the quoted provision makes applicable to the position of Secretary the commands of the Civil Service Law, including its section 13 [§ 41]. That would seem to be an incontrovertible position. The statute itself (§ 13 [§ 41]) exempts one Secretary of “ each municipal board or commission ’ ’, but it is urged that the respondent Authority is not either. But if it were a “municipal board or commission ’ ’, the quoted provision of section 32 of the Public Housing Law, subjecting the position of Secretary of a Housing Authority to the provisions of the Civil Service Law, would be unnecessary, because the latter would apply to the Authority by its own terms (Civil Service Law, § 2, subd. 3 [§ 2, subd. 5]). The purpose of section 32 of the Public Housing Law is to mahe applicable to a Housing Authority’s Secretary “ the provisions of the civil service law applicable to the municipality in which it is established ”. Such provisions are already applicable to municipal boards and commissions without any assistance from the Public Housing Law. If we were to hold that the Civil Service Law continues to apply only to boards and commissions despite an express legislative instruction that its provisions govern a Mousing Authority as well, we would have to hold that each different denomination of administrative agency to which the Legislature wished to apply civil service provisions would have to have a separately enacted body of them distinct from the present Civil Service Law. Such holding is untenable, and does violence to the plain words of section 32 of the Public Housing Law. There would appear to be no doubt that the position of Secretary is exempt; we return then to the question of whether or not petitioner Driscoll was appointed Secretary.

Respondent Authority contends that Driscoll’s appointment was to the position of “ executive director ”, which is not exempted under any provision. It relies on the minutes of the meeting at which Driscoll was appointed. The minutes appear in part as follows: ‘ ‘ The name of Justin E. Driscoll was suggested for the position of Director of the project and he was formally appointed to this position at a salary of $3,600.00 per year. Mr. Driscoll has been approved by the State Authority.” “ Mr. Stack resigned as Secretary of the Authority and Mr. Driscoll was named Secretary and Treasurer.”

The minutes establish first that it was the directorship to which he was first appointed, with appointments as Secretary and Treasurer following. Even were the minutes silent as to a secretaryship appointment, the designation of “Director”, when considered in its historical significance, would offer evidence of the strongest kind that the position of Director as regarded by the respondent is the very position of Secretary as regarded by the Troy Civil Service Commission. The old Housing Law (L. 1926, ch. 823) was amended in 1934 to add a section 64 (L. 1934, ch. 4), which section provided in part that ‘ An authority * * * may employ a secretary, who shall be executive director * * * ” (italics added). Chapter 808 of the Laws of 1939, enacting the Public Housing Law, repealed section 64 (inter alia) of the old Housing Law, and section 32 of the new law became the authorization for an Authority’s appointment of a Secretary. The legislative history behind the statute, when the duties assigned to the position by the respondent Authority are considered, indicates that both the old and new law contemplate the same office. The old law had express provision for a Secretary ‘ ‘ who shall be executive director ”; the new law alludes only to a Secretary. Yet Driscoll’s duties under the Authority, as manifested in the contract of employment recently made between them, establish that he functioned as both Director and Secretary of the respondent. In both old section 64 and later section 32, it is provided that the Authority shall determine the duties of the office, as the respondent at bar has done. In successor sections to old section 64, the direction that the Secretary “ shall be executive •director ” was omitted. But it had obviously become custom and usage for the occupant of the position to be referred to as Director or Executive Director; and that conclusion is strongly corroborated by the duties incumbent upon the holder of the office. It is further corroborated by Driscoll’s simultaneous appointment as Secretary to the Authority. The roster card is final proof, if any more were needed. It would be logical that the local Civil Service Commision be informed that Driscoll was appointed as Secretary for, despite the familiar title by which the incumbent is known within the particular agency involved, the local Civil Service Commission is concerned only with his official title for specific purposes regarding his status and, perhaps, his salary.

The aggregate of the roster card and the legislative history of section 32 of the Public Housing Law and the duties assigned to Driscoll and the minutes of the Authority’s meeting establish conclusively, in our judgment, that petitioner Driscoll was appointed Secretary to the respondent Authority.

The respondent contends that even if Driscoll did occupy an exempt position he was still not entitled to the protection of subdivision 1 of section 22 [§ 75, subd. 1, par. b] of the Civil Service Law, which requires specific grounds and a hearing before a veteran such as Driscoll may be dismissed. The Authority relies on an express provision therein, which excludes a 1 ‘private secretary” from the protection afforded by the statute, and upon the case of Matter of Glassman v. Fries (271 N. Y. 116, 119), where we said that the words “ private secretary” in that section ‘ ‘ embrace every person holding the position of secretary under section 13.” Our words in the Glassmcm case appear to have at least prima facie applicability, but we distinguished that case in our later decision in Matter of Mercer v. Dowd (288 N. Y. 381, 385). We quoted the Glassmcm words relied on by the Authority, and then said the following: “We think the respondents’ argument disregards the duties assigned to the appellant as executive secretary. It is not the title which the position bears but the character of duties required of its incumbent which must control our decision. ‘ The Legislature did not intend that rights of tenure to a position in [civil service] should be determined by the name given to the position. The duties of the position, as defined by some statute or by an ordinance or resolution of a body duly authorized by statute, not its name, determine the status of the position [Emphasis supplied.] (Matter of Rohr v. Kenngott, 288 N. Y. 97, 105; Matter of Byrnes v. Windels, supra [265 N. Y. 403], pp. 406, 407.) ” We then added the following: “ The record at hand makes it clear that the duties of the position from which the appellant was removed were not within the class excepted by the Civil Service Law (§ 22, subd. 2, or § 13, subd. 2).” And at another point in Mercer (p. 386) we said this: “In the performance of those duties [those assigned to Mercer] the appellant was not * * * a * secretary,’ under subdivision 2 of section 13 * *

In the above-quoted portions of our Mercer opinion our design was not to hold that his position was not “ secretary” under section 13; we meant only to hold that it was not “private secretary ” under section 22. Our words, it must be conceded, are not too clear, but the entire case was concerned not with whether Mercer was exempt under section 13, but with whether he was to be denied the protection afforded veterans under section 22. During all of our treatment of that subject we were endeavoring only to establish the nature of Mercer’s true position—examining its duties for the purpose—in order to determine whether he was in any sense a ‘ private secretary ’ ’. When we cited section 22 in the course of our discussion, we simultaneously cited section 13, which was not germane to the specific question before us. There is no doubt that Mercer’s position was Secretary and exempt ‘ ‘ under subdivision 2 of section 13 of the Civil Service Law” (see 263 App. Div. 932). In any event Driscoll is in substantially the same position Mercer occupied, under our rationale in that case. The analogy is compelled by our words in Mercer, that our decision must be controlled by “ the character of duties required” of the position’s incumbent. Mercer’s duties, which we described in our opinion, are strikingly similar to Driscoll’s, as evidenced by the contract recently made between him and the Authority, which contract looked expressly to continuing the employment ”. Both performed clerical duties; both had supervision and direction of subordinate employees; both had duties of maintaining the properties of their respective agencies. Mercer’s duties were clerical, supervisory and managerial, for which reason we held him entitled to the protection of section 22 because he was not the private secretary ” excluded from such protection. Driscoll’s duties are clerical, supervisory and managerial—fully analogous to those of Mercer. The protective provisions of section 22 are fully applicable to petitioner Driscoll. Without the “ incompetency or misconduct shown after a hearing upon due notice upon stated charges ”, Driscoll was wrongfully dismissed. He is entitled to reinstatement with back pay (less compensation received from other employment during the interim, as Special Term held).

The order of the Appellate Division in the article 78 proceeding is reversed and that of Special Term reinstated, with costs in this court and in the Appellate Division.

The judgment entered on the order of the Appellate Division in the contract action, brought simultaneously with the proceeding, by Driscoll as plaintiff, which dismissed the complaint upon the merits, is affirmed on the ground that petitioner Driscoll has had full relief under our decision in the article 78 proceeding, decided simultaneously herewith.

Judges Desmond, Dye, Fuld, Froessel, Van Voorhis and Burke concur.

In Matter of Driscoll v. Troy Housing Auth.: Order of Appellate Division reversed and that of Special Term reinstated, with costs in this court and in the Appellate Division.

In Driscoll v. Troy Housing Auth.: Judgment affirmed, without costs.

      As of April 1, 1959, a revision and reeodifleation of the Civil Service Law took effect (L. 1958, ch. 790). All of the substantive provisions of the former Civil Service Law with which this opinion must deal, however, are retained in the new compilation. To coincide with the citations appearing in the briefs and in the opinions below, references herein shall be to the necessary sections by their numbers as before the revision; for convenience, there appears in brackets next to each such citation the number of the section in the reeodifleation into which the old provision has been incorporated.

      . Quotation from old § 22. New § 75 is substantially the same.


source: Caselaw Access Project

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

license: Public Domain

text:
    In the Matter of the Estate of Philip Liberman, Deceased; Norman J. Liberman et al., Individually and as Executors and Trustees under the Will of Philip Liberman, Deceased, et al., Respondents; Bertha Liberman, Appellant.
    Argued May 26, 1959;
    decided July 8, 1959.

      James N. Vaughan for appellant.
    I. The authority to grant allowances contained in section 278 of the Surrogate’s Court Act extends to any proceeding, however labeled, where it is “ necessary ” to construe the will in order justly to determine the rights of the parties to the proceeding. (People v. New

      York Cent. R. R. Co., 13 N. Y. 78; Smith v. People, 47 N. Y. 330; People ex rel. Wood v. Lacombe, 99 N. Y. 43; Seltzer v. City of Yonkers, 286 App. Div. 557, 1 N Y 2d 782; Matter of Bouchoux, 89 Misc. 47; Chase v. Lord, 77 N. Y. 1; People ex rel. Westchester Fire Ins. Co. v. Davenport, 91 N. Y. 574; Matter of Guardian Life Ins. Co. v. Chapman, 302 N. Y. 226.) II. A will is never construed for the sake of the construction. Usually a will is construed so that conflicting claims of title to property may be decided. Therefore we think it was error below to opine that “ a ‘ proceeding to construe a will ’ differs materially from a proceeding in which a will may be construed ” if by the word “may” the Appellate Division intended (as it did in this case) the word “must”. (Matter of Smith, 96 Misc. 414.) m. The decided cases to which the court below referred do not necessitate the conclusion reached below. (Matter of Richmond, 276 App. Div. 271, 301 N. Y. 816; Matter of Filor, 293 N. Y. 699; Matter of Curley, 161 Misc. 391; Matter of Schnitzer, 14 Misc 2d 895; Matter of Goldberg, 164 Misc. 661; Matter of Mills, 272 App. Div. 229, 297 N. Y. 1012; Matter of Ablett, 3 N Y 2d 261; Matter of Evans, 165 Misc. 752, 258 App. Div. 1037, 284 N. Y. 571.)

      Lionel S. Popkin and Abraham S. Guterman for Norman J. Liberman and others, respondents.
    I. This proceeding was not “ a proceeding to construe a will ”. Hence, the Surrogate had no power to grant an allowance to Bertha Liberman’s attorneys. II. The courts have uniformly held that no allowance can be made to the surviving spouse in a proceeding involving an election to take against the will. (Matter of Richmond, 276 App. Div. 271; Matter of Curley, 161 Misc. 391; Matter of Schwartzkopf, 205 Misc. 1027; Matter of Schnitzer, 14 Misc 2d 895; Matter of Van Nostrand, 177 Misc. 230; Matter of Del Drago, 178 Misc. 325.) III. The question involved on this appeal is controlled by section 278 of the Surrogate’s Court Act. Appellant’s argument based upon provisions of the Civil Practice Act has no application. IV. The Appellate Division, in reversing the prior decree of the Surrogate, expressly held that the parties other than appellant Bertha Liberman were entitled to costs and this court affirmed without costs to any party.
    No appearance for special guardian.
   Chief Judge Conway.

In 1954 Bertha Liberman brought a proceeding in the Surrogate’s Court of New York County to validate her election to take an intestate share of the estate of her deceased husband, Philip Liberman, against the provisions of his will. Her petition alleged that the testator created a trust in her favor of one third of the residuary estate, that taxes were made payable from that.residue and that the capital of the trust in her favor was subject to dilution in favor of others. The answer of the other parties interested in the estate denied that petitioner was the surviving spouse, because a Nevada decree, divorcing petitioner from another man prior to her marriage to Liberman, was invalid for lack of jurisdiction. They also denied that the trust was constituted as alleged in the petition. Finally, they pleaded that the petitioner had waived her right of election in writing during the lifetime of the testator. Petitioner replied that she signed the alleged waiver but that she was ignorant of its nature, of the extent of Liberman’s property and that the instrument was inequitable and the product of concealment of material facts. She further alleged that the waiver was drawn and signed with specific reference to the 1942 marriage to Liberman when her first husband was still alive. She then alleged that in 1945, after the death of her first husband, she and Liberman went through a religious ceremony which constituted a repudiation of the waiver agreement. Finally, she set forth that she had cohabited with Liberman as man and wife in Florida and elsewhere until his death in 1954.

After a hearing on the merits, the Surrogate decided in favor of the petitioner. As one of his grounds for decision, the Surrogate held that petitioner’s rights in the trust were subject to being vitiated in favor of others under the doctrine of Matter of Wittner (301 N. Y. 461) and thus the provisions for her did not satisfy the requirements of section 18 of the Decedent Estate Law (6 Misc 2d 396).

The Appellate Division, First Department, reversed on the law and the facts. It decided, in effect, that the portion set aside for the petitioner was separate and not subject to invasion on behalf of the other beneficiaries, and that, therefore, the trust satisfied the requirements of section 18 of the Decedent Estate Law. Moreover, the court took the view that there was insufficient proof in the record to show that the 1942 divorce was invalid and, further, that petitioner was barréd by the antenuptial agreement. The antenuptial agreement including the waiver was also deemed to apply to the 1945 ceremonial marriage, as well as the 1942 marriage. In addition, it was observed that there was insufficient proof to show fraud or overreaching in obtaining her assent and signature to the document (4 A D 2d 512).

An appeal was taken to our court wherein the briefs contained lengthy argument as to the proper construction of the will. We unanimously affirmed the order of the Appellate Division without opinion (5 N Y 2d 719).

Accordingly, upon our remittitur, the Surrogate issued a decree making our order the order and decree of the Surrogate’s Court. However, that decree also provided for an allowance of $2,500 to be paid from the general estate by the executors to counsel for petitioner, for their services on the appeals to the Appellate Division and to our court. An appeal was taken and the Appellate Division modified the order, on the law, to delete the provision allowing compensation to petitioner’s attorneys, from which modification petitioner Bertha Liberman now appeals to our court.

The statute primarily involved in this appeal is that part of section 278 of the Surrogate’s Court Act which provides that: ‘ When the decree is made in a proceeding to construe a will, or after appeal, in such a proceeding, pursuant to the direction of the appeEate court, the surrogate may, in his discretion, aEow to an executor, trustee, guardian, or any party to said proceeding, such sum as the surrogate deems reasonable for his counsel fees and other expenses necessarily incurred in such a proceeding or on such appeal.”

AppeEant contends that the Etigation in which she sought to assert her right of election required a construction of the wiE in order to determine the rights of the parties and that, thus, it constitutes “ a proceeding to construe a wiE ” within the meaning of section 278. Respondents argue that such a proceeding can be brought only pursuant to section 145-a of the Surrogate’s Court Act which provides that: “ An executor, administrator with the will annexed, a surviving spouse, or any person interested in obtaining a determination as to the validity or effect of any election to take an intestate share against the provisions of a will under section eighteen of the decedent estate law may present to the surrogate’s court in which such will was probated, a petition setting forth the facts which show his interest, the names and post office addresses of the other persons interested and the particular question concerning which he requests the determination of the court.”

They then maintain that such a proceeding is entirely different from a construction proceeding which may be brought under section 145 of the Surrogate’s Court Act which states that: ‘ ‘ An executor, administrator with the will annexed, testamentary trustee, or any person interested in obtaining a determination as to the validity, construction or effect of any disposition of property contained in a will, may present to the surrogate’s court in which such will was probated, a petition setting forth the facts which show his interest, the names and post office addresses of the other parties interested, and the particular portion of such will concerning which he requests the determination of the court.” Hence, they conclude that the litigation in this case was not a 1 ‘ proceeding to construe a will ’ ’ under section 278.

The Surrogate, after indicating his belief that in the ordinary case respondents would be correct in their assertion that a right of election proceeding is not a proceeding to construe a will, held that in this case the issue of whether the trust was adequate under section 18 of the Decedent Estate Law required a construction of the will. He pointed out that subdivision 8 of section 40 of the Surrogate’s Court Act empowers the Surrogate “ To determine the validity, construction or effect of any disposition of property contained in any will proved in his court, whenever a special proceeding is brought for that purpose, or whenever it is necessary to make such determination as to any will in a proceeding pending before him * * *.” Therefore, he concluded that he was authorized to grant an allowance under section 278 and, in his discretion, did so.

The Appellate Division, on the other hand, declared that ‘ * a proceeding to construe a will” differs materially from “a proceeding in which a will may be construed,” and held “ [t]hat the court in the course of a particular proceeding may have to read the will to determine whether the petition should be granted or denied does not serve to transform the nature of the proceeding itself into a construction proceeding ’ The court also noted that since the widow here was unsuccessful there was no necessity for the court to pass upon the devolutionary effect a valid election might have upon the interests of the other beneficiaries.

The Appellate Division order of modification was stated to be on the law. No reference having been made to questions of fact or discretion, the presumption is that no questions of fact or discretion have been passed upon by the Appellate Division (Civ. Prac. Act, §§ 602, 606; Cohen and Karger, Powers of the New York Court of Appeals, §§ 129, 142). Accordingly, the only question presented to us for review is whether the Surrogate had the power to award an allowance of counsel fees to this appellant, who has unsuccessfully attempted to elect against the will on the ground that the provisions in her behalf were inadequate in that they were intended to be subject to dilution in favor of other beneficiaries. A review of the authorities which have dealt with questions in this area reveals the following principles.

Where the issues litigated are those of status or standing, dependent upon facts ulterior to the will, the proceeding is not a construction proceeding within the purview of section 278 of the Surrogate’s Court Act, and allowances may not thereupon be awarded (Matter of Curley, 161 Misc. 391 [Surr. Ct., 1936]; Matter of Seyfried, 176 Misc. 759 [Surr. Ct., 1941]). In Matter of Curley (supra), the Surrogate pointed out that right of election proceedings may turn on many considerations wholly independent of the provisions of the will, particularly questions of status, i.e., whether the petitioner has standing as a surviving spouse, or questions as to whether the election was properly or timely made. For these reasons, he ruled that, generally speaking, a right of election proceeding is not a proceeding to construe a will in which allowances may be granted. So too, where the question is one of statutory construction, or where the intent of the testator is clear, and the court need only determine whether the requirements of a statute such as section 18 of the Decedent Estate Law have been met, the proceeding is not one to construe a will (Matter of Del Drago, 264 App. Div. 718 [1st Dept.], affd. 289 N. Y. 601; Matter of Mills, 272 App. Div. 229 [1st Dept.], affd. 297 N. Y. 1012; Matter of Richmond, 276 App. Div. 271 [4th Dept.], motion for leave to appeal denied 301 N. Y. 816; Matter of Schwartzkopf, 205 Misc. 1027 [Surr. Ct.]; Matter of Webster, 178 Misc. 345 [Surr. Ct.]). However, where the intent of the testator is impossible of performance and it is necessary to determine what his intent might be, in view of the impossibility of performance, the proceeding is one to construe the will. An example is Matter of Curley (supra) where the Surrogate awarded allowances to those interested in the necessary abatement of bequests after the widow had successfully asserted her right of election. Moreover, where the original intent of the testator is in doubt, or his language is ambiguous and it is necessary to determine what the intent might be, the proceeding is also one to construe a will. An example is our decision in Matter of Folsom (6 N Y 2d 886, decided herewith) where interested parties brought a proceeding to have a successor testamentary trustee appointed. We confirmed awards of allowances because the issues concerned a construction of the will. Another case in point is Matter of Schnitzer (14 Misc 2d 895 [Surr. Ct.]) where the widow, as in the instant case, brought a right of election proceeding contending that her rights in the estate were submerged in a single trust and subject to vitiation for the benefit of others. There, the court noted that “validity of the exercise of the right of election was wholly dependent upon the construction and effect of the provisions of the will” and, thus, allowances were authorized (14 Misc 2d 895, 897). The court further observed that inasmuch as the widow would have been able to bring a formal construction proceeding wherein allowances would have been authorized, and then, upon success, to bring a right of election proceeding, a rule contrary to that enunciated might well encourage multiplicity of proceedings.

In our consideration of the last two cases mentioned, we note that in our present case there were also strong issues concerning petitioner’s marital status and a written waiver of her rights. Nevertheless, the question of the proper interpretation of the will, i.e., whether the testator intended that the share set aside for her was to be subject to dilution in favor of others, was strongly litigated and received careful and detailed consideration in all three courts, and certainly was considered dispositive in our court and in the Appellate Division. The proper construction of the will was a vital question in petitioner’s claim and a weighty consideration in its disposition in the courts. It follows that this was a proceeding brought to construe the will, in the sense that petitioner’s learning of the intent of her late husband was essential to her proposed election against his will, and that this falls within the ambit of section 278 of the Surrogate’s Court Act. What is more, this result is practical in that, as pointed out in Matter of Schnitzer (supra), multiplicity of litigation is avoided. That was the obvious intent of the Legislature when it empowered the Surrogate under subdivision 8 of section 40 of the Surrogate’s Court Act to construe a will whenever it is necessary to make such determination in a proceeding before him ”. For that reason, we also disagree with the Appellate Division’s distinguishing between a proceeding to construe a will and a proceeding in which a will may be construed. An exploration or inquiry into the intent of a testator is not usually launched in vacuo but is rather urged by persons who stand materially to benefit or suffer by a particular construction. Where the intent of the testator is in doubt and a litigant urges a certain construction upon the court in order to reap a particular benefit, the caption of the proceeding should not be controlling as to its essential nature. Mor should petitioners be encouraged to bring separate, special construction proceedings under section 145 to give the Surrogate power to award allowances. In addition, there is always the consideration that section 18 of the Decedent Estate Law and section 145-a were designed to protect the surviving spouse. In a ease where the intent of the deceased spouse is murky, and the surviving spouse is uncertain as to whether her rights under section 18 have been satisfied, she should not necessarily have to obtain a clear definition of these provisions at the risk of expensive counsel fees personally paid. Mor would a holding, that the Surrogate has such powers, open the door to spurious or superficial allegations and arguments urging the construction of wills. Section 278 provides, basically, that the Surrogate may, “ in his discretion ”, allow such sums as he “deems reasonable”, and this is just another situation where the Surrogate exercises broad powers as a guardian over decedent estates, subject to appellate review. (See, e.g., Matter of Mahlstedt, 234 App. Div. 891; see, also, Matter of Ablett, 3 N Y 2d 261.)

There is the additional consideration that section 1514-a of the Civil Practice Act empowers the court to make allowances of counsel fees in a proceeding 11 which involves the construction of a will ”. We need not decide whether the powers granted by that section have been extended to the Surrogate’s Court by virtue of section 316 of the Surrogate’s Court Act which makes provisions of law or rules applicable to procedure in the Supreme Court applicable to the Surrogate’s Court “Except where a contrary intent is expressed or plainly implied from the context of this act ”. Nonetheless, as our court said in Smith v. People (47 N. Y. 330, 339): “ Statutes in pari materia relate to the same subject, the same person or thing, or the same class of persons or things, and are to be read together, for the reason that it is to be implied that a code of statutes relating to one subject is governed by the same spirit, and are intended to be harmonious and consistent.” There is no question that the instant case is one of a proceeding which “ involves the construction of a will ” within the broad meaning of section 1514-a of the Civil Practice Act. We do not think that the Legislature, motivated as it is by the interests of harmony and consistency, would intend that the rule as to allowances where wills are to be construed in the Supreme Court be different than that which obtains in the Surrogate’s Court.

The order of the Appellate Division should be reversed and the matter remitted to that court for further proceedings not inconsistent with this opinion, with costs in this court to all parties appearing separately and filing separate briefs payable out of the estate.

Fuld, J. (dissenting).

The appellant widow may be allowed counsel fees in this case, pursuant to section 278 of the Surrogate’s Court Act, only if the decree was made “in a proceeding to construe a will ”. The question, therefore, is whether the proceeding brought by the widow was one to construe her husband’s will. Mere statement that she instituted the proeeeding, pursuant to section 145-a of the Surrogate’s Court Act to elect “ against the provisions of [the] will ”, it seems to me, supplies the answer. And so the courts have consistently held. (See, e.g., Matter of Mills, 272 App. Div. 229, affd. 297 N. Y. 1012; Matter of Richmond, 276 App. Div. 271, 276, motion for leave to appeal denied 301 N. Y. 816; Matter of Schwartzkopf, 205 Misc. 1027, 1029; Matter of Curley, 161 Misc. 391, 393-394.)

In Matter of Richmond (276 App. Div. 271, supra), for instance, the court, after noting that (p. 276)

‘ ‘ It remains to consider the question of costs and counsel fees ”,
went on to declare:
“ In Matter of Curley (161 Misc. 391) Surrogate Win-gate held that a proceeding under section 145-a of the Surrogate ’s Court Act was not a proceeding to construe a will within the meaning of section 278 of said act and therefore no statutory justification exists for an allowance of counsel fees under that section.”

And in the Curley case (161 Misc. 391, supra), Surrogate Wingate wrote that a proceeding to elect against the will is “ quite different ” from a proceeding to construe such an instrument and that, consequently, there is no warrant for allowances under section 278. The Surrogate’s language is so much to the point that I set it forth at some length (pp. 393-394): “ The purpose of the authority conferred upon the court by section 145-a of the Surrogate’s Court Act is not directly or primarily for the purpose of determining any question respecting the meaning or effect of the will, but is for an ascertainment of whether or not the attempted elector is justified in the assertion of a right to take a portion of the estate of the decedent as in intestacy. This may depend on any one of many considerations wholly independent of the provisions of the testamentary document itself * * *. Even in those instances in which reference to the testamentary script is required for the purpose of ascertaining whether the elective right has been validly exercised as a result of a failure by the testator to comply with his Tnrrnnrnm legal obligations in respect to devolutionary directions, the process is no more a construction of the will than is a similar reference to the testamentary instrument for the purpose of ascertaining whether he has complied with an agreement adequately to compensate services by will. [Cases cited.] By the express terms of the enactment itself, the authority granted -under section 145-a is merely for a determination of ‘ the validity or effect of any such election ’ and not for any decision in respect to the validity or effect of the will itself. The two things are quite different. It follows, therefore, that a determination under this section, whether made in an independent proceeding initiated for this express purpose, or on an accounting, is not a construction of the will within the meaning of section 278, wherefore there is no statutory justification for an award of allowances in excess of costs to the ordinary parties thereto.”

Allowances were granted in Matter of Curley, but, as a reading of the entire opinion in that case plainly establishes, they were granted because the widow had succeeded in her election application and, as a result of that, a construction of the will became essential. Here is what Surrogate Wingate wrote as to this phase of the case (pp. 394-395): “ Although the impropriety of allowances to parties or their counsel appears evident in a proceeding to determine the validity of the exercise by the surviving spouse of the right of election granted by section 18 of the Decedent Estate Law, a different situation is encountered in those instances in which the right has been determined to exist, and the litigated question relates to the resulting rights of the beneficiaries named in the will. In such cases a dislocation of the terms of the testamentary script has inevitably resulted, and the problem presented concerns the consequent rights of the beneficiaries under the will in the diminished distributable estate. Questions of abatement are, therefore, present for adjudication which require an analysis and interpretation of the will itself since the devolutionary rights of those entitled to share are determinable as a result of its directions from which alone the testamentary wish is ascertainable.” (See, also, Matter of Schwartzkopf, 205 Misc. 1027, supra, wherein Matter of Curley and Matter of Schnitzer, 14 Misc 2d 895, are effectively treated.)

The language of section 278 is plain, its design clear. In terms, it provides for allowances when the decree is made “ in a proceeding to construe a.will,” and it was manifestly intended to compensate a party for services rendered in the interests of all of the beneficiaries named in the will. A proceeding, initiated by a surviving spouse under section 145-a, to elect against the will, is brought solely for his or her benefit, in outright contravention of the will. Such a proceeding is the very antithesis of an application to construe the will, for it is the aim of the petitioner to overthrow and defeat the will and its provisions.

The Appellate Division was eminently correct in denying payment of compensation out of the estate to the petitioner’s attorneys. The order should be affirmed.

Judges Desmond, Dye, Feoessel, Van Vooehis and Bubke concur with Chief Judge Conway; Judge Field dissents in a separate opinion.

Order reversed, etc.


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

text:
    Department of Welfare of the City of New York, Appellant, v. Margaret J. Siebel, Respondent.
    Argued April 14, 1959;
    decided July 8, 1959.

      Charles JET. Tenney, Corporation Counsel (Edward A. Doberman and Seymour B. Quel of counsel), for appellant.
    I. The order of support was authorized by the applicable statutes, which, when read together, evince a legislative intent that contribution towards the expense incurred by the City of New York in maintaining a child in an institution may be compelled simultaneously from more than one person legally chargeable for the child’s support, including a stepmother, at least where the father is unable to pay the full cost. (Casella v. McCormick, 180 App. Div. 94; People ex rel. Municipal Gas Co. v. Public Serv. Comm., 224 N. Y. 156; Department of Welfare of City of N. Y. v. Halecky, 193 Misc. 88; “ Santora ” v. “ Santora ”, 199 Misc. 335; “ Morgan ” v. “ Morgan ”, 191 Misc. 53; Matter of Kane v. Necci, 269 N. Y. 13; Hagopian v. Samuelson, 236 App. Div. 491; Betz v. Horr, 276 N. Y. 83; Matter of Wignall v. Wignall, 163 Misc. 910; Goetting v. Normoyle, 191 N. Y. 368; Anonymous v. Anonymous, 176 Misc. 103.) II. Even if relatives are liable for support in a particular order of succession, obtaining less than full contribution from a father, said to be primarily liable, does not exhaust power to proceed against a stepmother, even if only secondarily liable, for the whole or part of the balance. (Rochester Sav. Bank v. Stoeltzen &

      Tapper, 176 Misc. 140; Holmes v. Mack Int. Truck Co., 224 Mo. App. 427.) III. There is no merit to contentions that under the statutes prior recourse must be had to grandparents before resorting to stepparents, or that the “ step parent ” does not include ‘ ‘ step mother ’ ’, or that the Domestic Relations Court Act does not afford procedural due process. (Caplan v. Caplan, 177 Misc. 847; “ D. G.” v. “ Hermanez ”, 204 Misc. 650; Jones v Jones, 161 Misc. 660; Sands v. Sands, 273 App. Div. 872; Matter of Hawes, 208 Misc. 690; Matter of Campbell, 208 Misc. 281; Myers v. Myers, 255 App. Div. 599; Weitz v. Weitz, 1 A D 2d 1025; Averett v. Averett, 110 Misc. 584, 191 App. Div. 948.)

      Robert V. Rafter for respondent.
    I. Section 56-a should be strictly construed; stepmother liability precluded, since parent liable under order. II. Article 4 of title III of the Domestic Relations Court Act is unconstitutional. III. The statute does not contemplate charging a stepmother with support of a stepchild. (Betz v. Horr, 276 N. Y. 83; People [Complaint of Coleman] v. Fermoile, 236 App. Div. 388; Matter of Kane v. Necci, 245 App. Div. 1, 269 N. Y. 13.) IV. The liability of a stepparent is quaternary. (Sands v. Sands, 273 App. Div. 872.) V. None of the allegations contained in the petition have been proven.
   Chief Judge Conway.

This case presents the question whether a stepmother may be compelled to contribute to the expense incurred by the City of New York because of the maintenance of her stepson, who is a public charge having been committed to a school for delinquents, it appearing (a) that the stepmother had knowledge of the child’s existence at the time of her marriage to the child’s father and (b) that the father had been ordered to contribute to the child’s support but the amount so ordered to be paid was insufficient to reimburse the city in full.

The essential facts are undisputed. The respondent and her husband, Joseph Siebel, were married on August 7, 1953. The boy, also named Joseph Siebel, was born on March 27, 1943, so that he was 10 years and 4 months old at the time of the marriage. On or about November 1, 1957 (the boy was then 14 years and 8 months old), the boy was adjudicated delinquent by the Children’s Court Division of the Domestic Relations Court, Queens County, and committed to the care and custody of Cedar Knolls School, Hawthorne, New York, at a cost of $49 a week to the City of New York.

The present proceeding was instituted by petition of the appellant Department of Welfare of the City of New York dated December 3, 1957. The prayer for relief was that “in accordance with the provisions of Chapter 482, Laws of 1933, as amended by Chapter 671, Laws of 1940, (Section 56-A), process of this Court be issued requiring the said Margaret Jeffrey Siebel to appear before this Court to be examined as to her ability to contribute in whole or in part toward the support of said child—while in the care and custody of said association, agency, society or institution [Cedar Knolls School] * *

After the filing of the petition a summons was issued by an administrative officer of the court, directing the respondent to appear before the court to be examined as to her ability to support her nearly 15-year-old stepchild. On January 7, 1958 the respondent was examined by the court and an order was that day entered requiring the respondent to pay the sum of $20 per month toward the support of the stepchild, retroactive to November 1, 1957.

The father of the child was also required to pay $22.50 per week for the child’s support, commencing January 1, 1958. On appeal by the respondent, the Appellate Division reversed, two Justices dissenting.

On this appeal the Department of Welfare argues that (1) the order of support was authorized by the applicable statutes which, when read together, evince a legislative intent that contribution towards the expense incurred by the City of New York in maintaining a child in an institution may be compelled simultaneously from more than one person legally chargeable for the child’s support, including a stepmother, at least where the father is unable to pay the full cost, (2) even if relatives are liable for support in a particular order of succession obtaining less than full contribution from a father, said to be primarily liable, does not exhaust power to proceed against a stepmother, even if only secondarily liable, for the whole or part of the balance, and (3) there is no merit to contentions that under the statutes prior recourse must be had to grandparents before resorting to stepparents, or that “step parent” does not include “ step mother ”, or that the Domestic Relations Court Act does not afford procedural due process.

The respondent, on her part, contends that (a) section 56-a should be strictly construed and that here a stepmother’s liability is precluded since the parent has been held liable under a support order; (b) article 4 of title III of the Domestic Relations Court Act is unconstitutional; (c) the statute does not contemplate charging a stepmother with support of a stepchild ; (d) the liability of a stepparent is quaternary (fourth in line); and (e) none of the allegations contained in the petition has been proven.

Section 56-a of the Domestic Relations Coqrt Act of the City of New York, pursuant to which this proceeding was instituted, reads in pertinent part: “Duties of city department of welfare and city department of health with respect to compelling support.

1. Upon the remand or commitment of a child to a public or private institution other than a shelter maintained and conducted by a society for the prevention of cruelty to children, the department of welfare of the city of New York shall investigate the ability of the parent of the child, or other person legally chargeable, to contribute in whole or in part to the expense incurred by the city of New York on account of the maintenance of such child.

2. If in the opinion of the department of welfare such parent or legal custodian is able to contribute in whole or in part the commissioner of welfare shall thereupon institute a proceeding in the family court of the domestic relations court of the city of New York to compel such parent or other person legally chargeable to contribute such portion of such expense on account of the maintenance of such child as shall be proper and just and the domestic relations court of the city of New York is vested with jurisdiction in the premises.

3. * * (Emphasis added.)

Section 92 of the Domestic Relations Court Act of the City of New York, entitled “ Powers ”, provides, in part that:

‘ ‘ In the exercise of its jurisdiction the court shall have power * * *

To order support of a stepchild by the persons legally chargeable therewith up to the age of seventeen years, subject to the limitations of subdivision five of section one hundred and one. * * * ” (Emphasis added.)

It will be observed that section 56-a provides merely that the Department of Welfare may institute a proceeding to compel support from the child’s parent “ or other person legally chargeable ” with the child’s support and that section 92 provides merely that the court has jurisdiction “ [t]o order support of a stepchild by the persons legally chargeable therewith * * Nowhere do either of those sections enumerate the persons who are “legally chargeable ” with the support of a stepchild. For that, one must look to section 101 of the Act. That section reads:

“ Section 101. Legal liability for support.

1. A husband is hereby declared to be chargeable with the

support of his wife and children and if possessed of sufficient means or able to earn such means, may be required to pay for their support a fair and reasonable sum according to his means, as may be determined by the court. * * *

2. Where the father of a child is dead or is incapable of supporting his child or cannot be found within the state, the mother of such child is hereby declared to be chargeable with its support and if possessed of sufficient means or able to earn such means, may be required to pay for its support a fair and reasonable sum according to her means, as may be determined by the court.

3. Where the father of a child included in a petition for support is dead, or where the court, in its judgment, is unable to secure adequate support for such child from its parents, and the child’s grandparents are of sufficient means to support it, said grandparents are hereby declared to be chargeable with the support of such grandchild and may be required to pay a fair and reasonable sum according to their means, as may be determined by the court.

4. * * *

5. The step parent of a child is hereby declared legally chargeable with the support of a step child likely to become a public charge provided it is shown to the satisfaction of the court that such step parent had knowledge of the child’s existence at the time of said step parent’s marriage.

g * * * >}

The foregoing statutes may be summarized as follows:

(1) The father is primarily and unconditionally liable for the support of his child;

(2) The mother is liable, but conditionally, the conditions being (a) that the father of the child is dead, or (b) is incapable of supporting his child, or (c) is out of the State;

(3) The grandparents are liable, but conditionally, the conditions being (a) that the father is dead, or (b) that the court is unable to secure adequate support for the child from its parents.

In the case of each of the above persons, the liability for support is enforcible if the person is possessed of sufficient means.

(4) A stepparent is legally chargeable with the support of a stepchild, but conditionally, the conditions being (a) that the child is likely to become a public charge and (b) that the stepparent have had a knowledge of the child’s existence at the time of said stepparent’s marriage.

The first of the two conditions precedent to a stepparent’s liability for support exists here, viz., that the child “is likely to become a public charge.” The child here is in a home for delinquents and is being supported by the City of New York. What is more, the respondent does not contend that the first condition does not obtain. The second condition, viz., that the stepparent have had knowledge of the child’s existence at the time of said stepparent’s marriage also exists here (respondent herself so testified). The two conditions being present, respondent makes the argument that the term “ step parent” means ‘ ‘ step father ’ ’ and that even if ‘1 step parent ’ ’ is read to include a “ step mother ” she is not liable for support here since a stepparent’s liability is fourth in line and does not come into being at all until there is proof of the inability of the blood relatives (i.e., the mother and the grandparents of the child) to pay.

In support of her argument that ‘ ‘ step parent ’ ’ means “ step father ” the respondent relies upon dictum in the case of Matter of Glowsky v. Gitlin (16 Misc 2d 768, 771) the thrust of which was: ‘ ‘ The term stepparent as used in the statute can only mean ‘ stepfather. ’ To include a stepmother within the statutory term of a stepparent, in a law requiring and enforcing the obligation of support of a stepchild, is without the necessary foundation of moral law.”

Quite apart from the fact that this is a dictum of a lower court, and as such is not binding on this court, the statement is unsound. It can hardly be argued that every statute must find its foundation or basis in moral law. Many statutes have no relationship to moral principles. For example, many acts have been made crimes by legislative enactment not because the acts transgress moral law but simply because the Legislature in its wisdom has chosen to classify them as such. These are the crimes described as ‘ ‘ mala prohibita ’ ’ and 1 are crimes only because they are prohibited by statute.” (22 C. J. S., Criminal Law, § 8.) So, too, the Legislature is free —if it is so disposed—to burden a stepmother with the support of her stepchild, without having to find some justification in moral law for its action. The question which remains is: Has the Legislature done so?” In my judgment that question can only be answered in the affirmative. Legislative intent is to be determined primarily from the language used in the act under consideration. Here the word chosen by the Legislature was step parent ”, not “ step father ”, although the latter word was certainly available. We are not at liberty to restrict by conjecture, or under the guise or pretext of interpretation, the meaning of the phrase selected.

This brings us to that which may be described as the main issue in the case, viz., whether contribution may be compelled simultaneously from more than one person legally chargeable for the child’s support including a stepmother, at least where the father is unable to pay the full balance.

As stated above, according to section 101 of the Domestic Relations Court Act of the City of New York, a father is primarily and unconditionally liable for the support of his children; a mother is liable, but only (1) where the father of the child is dead, or (2) is incapable of supporting his child, or (3) is out of the State; and grandparents are liable, but only (1) where the father is dead, or (2) where the court is unable to secure adequate support for the child from its parents. Finally, a stepparent is legally chargeable with the support of a stepchild (1) if the child is likely to become a public charge and (2) the stepparent had knowledge of the child’s existence at the time of said stepparent’s marriage.

We have already pointed out that the two conditions precedent to a stepparent’s liability exist here and that respondent does not argue to the contrary. Doubtless, a reading of section 101 discloses a legislative intention to make the father' of a child the one who has the primary duty of its support. However, if the father is incapable of supporting his child — and we think it reasonable to conclude that a father is incapable of supporting his child within the meaning of the statute if he is unable to pay the full amount needed to support the child—the liability of other persons comes into existence. There is nothing in section 101 to suggest that so long as the father can afford as little as one dollar towards the support of his child that no one else is obligated to contribute thereto and we should not read such a meaning into the statute for we would produce an anomalous result if we were to do so. The evident object of the statute is to assure the child of support. The father has been made primarily liable for such support. If he fails, the liability of the mother, the grandparents and the stepparent arises. The statute does not enumerate the order in which these other persons become liable inter se and a fair reading of the statute is that they have all been made “ secondarily liable.” The majority and dissenting Justices in the Appellate Division all agreed that the father of a child is primarily responsible and that the other persons legally chargeable are secondarily liable. Their difference was on the question of whether support can be required of one of those secondarily liable where an order of support has been entered against the father but such order is insufficient to provide the necessary support for the child. The majority, relying on the wording of section 56-a, held that as between the parent and the respondent, who is in the position of one secondarily liable, the liability is in the alternative. The dissenting Justices, on the other hand, said that: * * * In our opinion, section 56-a of the Domestic Delations Court Act must be read with subdivision (5) of section 92 of the same statute, which, provides that the court may order support to such a stepchild by the persons legally chargeable therewith, subject to the limitations of subdivision 5 of section 101. The purpose of section 56-a appears to be to permit the Department of Welfare of the City of New York to compel those legally responsible for the support of a child committed for institutional care, to contribute to the expense incurred by the city in the maintenance of such a child according to their financial ability. * * * Although appellant may be only secondarily liable, she is nevertheless chargeable with the child’s support, to the extent which may be proper and just, in a proceeding such as this in which the father, primarily liable, is unable to contribute the full amount of the expense incurred and has been required to contribute such part thereof as has been determined to be just and proper in accordance with his ability. [Cases cited.] ”

We agree with the view taken by the dissenting Justices. Section 56-a provides for proceedings by the local Department of Welfare to compel contribution toward the city’s expenses in such cases, and vests jurisdiction of such proceedings in the Domestic Relations Court of the City of New York. Contribution is exacted from the parent or other person legally chargeable ” if it is found after investigation that ability to contribute in whole or in part exists.

The word “ or ” in the phrase quoted may be read as “ and ” to carry out the legislative intent (McKinney’s Cons. Laws of N. Y., Book 1, Statutes, § 365). Section 56-a is procedural in nature. It relates to the remedy rather than to the right. Its very title refers to the duties of the Department of Welfare — that is, the procedures to be followed—with respect to compelling support. It grants a more expeditious remedy to the Department of Welfare in addition to the remedy by civil action available under section 104 of the Social Welfare Law. It would seem to follow that in considering whether the respondent is liable for support, and, therefore, contribution, under the circumstances of this case, we should consider primarily the scope and language of section 101 of the statute which gives rise to the Department of Welfare’s cause of action. In this view section 56-a, relating to the remedy or the means by which the cause is enforced, is of secondary importance.

Respondent argues that article 4 of title III of the Domestic Relations Court Act of the City of New York, pursuant to which this proceeding was instituted, is unconstitutional. The respondent contends that the proceeding deprives her of property without due process. She asserts that the statute does not afford one an opportunity to interpose an answer to the department’s petition; that the allegations of the petition are assumed to be valid in every respect and, if they are not true, there is nothing the respondent can do about it; that the city has made, not merely a prima facie case, but a conclusive case, and the sole issue becomes one of determining how much the respondent can afford to pay and that the respondent’s only remedy is an appeal.

This argument is without substance. No answer or formal pleading by respondent was necessary; the allegations of the petition were to be established or disproved by evidence (Matter of Vendetti v. Vendetti, 16 Misc 2d 2). The respondent was represented by counsel, and had the right to cross-examine and to present evidence. That she chose to rest upon a legal argument which the court below did not accept certainly did not deprive her of a fair hearing.

At page 15 of her brief the respondent states that the ‘1 Petition herein, verified December 3, 1957, filed December 5, 1957, alleges that the respondent: ‘ refused or neglected to provide support for dependent child . . . for whose support you are legally chargeable.’ The record contains no evidence of refusal or neglect to provide support. ’ ’

An examination of the petition will disclose that the petition does not allege that the respondent “refused or neglected” to support the child. It alleges merely that she ‘1 failed * * * to do so ”. The contention that there was no proof of express refusal accordingly is moot. It may not be denied that prior to this proceeding the respondent had failed to provide any amount of support. Certainly that failure — and indeed even a refusal to support—may reasonably be inferred from her resistance to the making of an order in this proceeding.

Reference is made by respondent to the fact that the respondent and her husband are on the verge of a divorce. That fact has no bearing on the validity of the support order here under review.

The order of the Appellate Division should be reversed and that of the Domestic Delations Court reinstated, without costs.

Fuu), J. (dissenting).

I would affirm the determination of the Appellate Division.

The issue here presented is whether the respondent stepmother may be called upon to contribute to the expense of maintaining in an institution her husband’s child, who had been adjudicated a delinquent. Pursuant to section 56-a of the Domestic Delations Court Act of the City of New York, the child’s father had been required to pay $22.50 a week for that purpose, and the New York City Department of Welfare thereafter instituted the present proceeding to require the respondent also to contribute. The Domestic Delations Court directed her to pay $20 a month “for the support of.” the child; the Appellate Division reversed and dismissed the petition.

The petitioner takes the position that, because a number of statutes require a stepparent to be responsible — after parents and grandparents — for the support of a child who is likely to become a public charge, a stepparent may be compelled, under section 56-a, to contribute to the maintenance of a child in an institution to the extent that the child’s own parent’s contribution is inadequate. I find nothing in the statute which mandates any such result.

Section 56-a of the Domestic Delations Court Act provides that, upon the remand or commitment of a child to a public or private institution, the Department of Welfare shall investigate “ the ability of the parent of the child, or other person legally chargeable, to contribute in whole or in part to the expense incurred by the city of New York on account of the maintenance of such child ” and, if in its opinion, “ such parent or legal custodian is able to contribute in whole or in part”, the Commissioner of Welfare shall institute a proceeding “to compel such parent or other person legally chargeable to contribute such portion of such expense on account of the maintenance of such child as shall be proper and just” (italics supplied). The stepparent is among those declared “legally chargeable” with the stepchild’s support if the former knew of the child’s existence at the time of marriage (N. Y. City Dom. Eel. Ct. Act, § 101, subd. 5).

When the Legislature called upon a ‘1 parent ” or “ other person legally chargeable” to contribute to the child’s support in an institution, its design, quite obviously, was to require the father (if there was one) to pay in the first instance and, if he did, that was the measure of the contribution to be made to the city “ on account of [its] maintenance of such child”. The statute negates the idea that, if the full amount necessary for maintaining the child in an institution was not paid by the father, the balance, or some further sum, could be required of the stepmother. In other words, where the father is found to be “ able to contribute in whole or in part ” to the expense incurred by the city and he pays the amount “assessed” against him, the statute does not authorize the collection of any further amounts from the stepmother.

The language and design of the legislation establish that there was no disposition on the part of the Legislature to require contributions, once the father or other custodian primarily responsible has contributed, from the stepmother or the other persons listed in section 101 as legally chargeable. If the father’s contribution proves inadequate, the legislative scheme requires that the deficit be borne by the city, for the statute negates the existence of multiple liability to be visited in part on the father and in part on the stepmother. As demonstrated by use of the word “ or ” in section 56-a, the liability imposed is in the alternative, not in the conjunctive. Absent a clear indication of a legislative design, the courts may not change the word “or” to “and” (McKinney’s Cons. Laws of N. Y., Book 1, Statutes, § 365). In short, it was the legislative design that a parent, and only a parent, pay for or contribute to the support of his child in an institution; if he made no contribution, the next person “ legally chargeable ” could be required to contribute, first the grandparents and, then, the stepparents.

On the other hand, if the Legislature had meant a stepmother, as well as the child’s own father, to contribute, section 56-a would have so provided, as does subdivision 4 of section 101 of the Domestic Eolations Court Act in a similar situation. That subdivision recites that the ‘ ‘ parents, the grandparents and the children of a dependent person over seventeen years of age * * * who * * * is likely to become a public charge are hereby declared to be severally liable for the support of such poor relative. The court shall determine and apportion the fair and reasonable sum that each such person shall be required to contribute ”. (Italics supplied.) The absence of any such provision in the case of a child committed to an institution is more than persuasive that the liability of a stepparent is only alternative to that of a parent and, hence, where the father pays for some part of the child’s maintenance, no responsibility rests upon the stepmother — or other legally chargeable person—to make a further contribution to the child’s support.

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

Order reversed, etc.


author:
Dte, J. Chief Judge Conway (concurring).
      Van Voorhis, J. (concurring). Fuld, J. (dissenting).

text:
    The People of the State of New York, Respondent, v. Richard Johnson, Appellant.
    Argued May 27, 1959;
    decided July 8, 1959.

      Harry H. Kutner and James G. Blake for appellant.
    I. The statute is unconstitutional as construed by the lower court. (Territory of Hawaii v. Anduha, 48 F. 2d 171; Trio Distrs. Corp. v. City of Albany, 2 N Y 2d 690; Winters v. New York, 333 U. S. 507; Cantwell v. Connecticut, 310 U. S. 296; People v. Diaz, 4 N Y 2d 469; People v. Bell, 306 N. Y. 110.) II. The statute was never intended to make criminal otherwise innocent activity. (People v. Parker, 208 Misc. 978; Metropolitan Life Ins. Co. v. Burkin, 301 N. Y. 376.) III. Defendant was not guilty even under the lower court’s definition of loitering. (People v. Bell, 306 N. Y. 110.) IV. Defendant did not receive a fair trial.

      Manuel W. Levine, District Attorney (Henry P. De Vine of counsel), for respondent.
    I. Guilt was established beyond a reasonable doubt. II. Section 722-b of the Penal Law is not unconstitutional. (People v. Bell, 306 N. Y. 110; People v. Diaz, 4 N Y 2d 469; People v. Parker, 208 Misc. 978; Ellis v. Dixon, 349 U. S. 458, 350 U. S. 855; Matter of Ellis v. Allen, 4 A D 2d 343, 4 N Y 2d 693.) III. The Trial Judge was not prejudicial.
   Dte, J.

The defendant-appellant had been convicted, following a trial without a jury, of disorderly conduct in violation of section 722-b of the Penal Law. That section provides: “ § 722-b. Loitering in school buildings. Any person not the parent or legal guardian of a pupil in regular attendance at said school who loiters in or about any school building or grounds without written permission from the principal, custodian or other person in charge thereof, or in violation of posted rules or regulations governing the use thereof, shall be guilty of disorderly conduct.”

The proof establishes, without any serious doubt, that this defendant and a male companion who, by the way, has not been charged with any violation although he was with the defendant at all times on or about March 21, 1958, entered the Baldwin Senior High School in Baldwin, N. Y., between 2:30 and 2:45 p.m., to meet two friends who were in the school. Concédedly, neither of them were within the exception of the statute, that is, neither was the parent nor the guardian of a student in regular attendance at such school, and had no written permission to be there.

They hung about in the main lobby for about 10 minutes and then, at the suggestion of one of the students whom they had planned to meet and whom they saw as they passed through the lobby, went to the second floor and waited in the corridor outside their home room. Several minutes later when the class was dismissed the defendant and his companion and their two student friends walked down the stairs and out through the lobby and on the school grounds. When outside the defendant put an unlighted cigarette in his mouth. A teacher who was present asked him three different times to remove it and when he did not the teacher reached to take it out of his mouth. The defendant countered by knocking off the teacher’s hat and punching him in the stomach, following which he left. There was also evidence that several weeks before, for good reason which had no bearing on the within charge, the defendant had been warned by a teacher to keep out of the school.

When the defendant took the stand in his own behalf, he did not contradict any of the People’s proof as to the main issue. By his own statement, he admitted he knew he was not supposed to be in the school and grounds but contented himself in denying a series of collateral matters with prior alleged conduct in and about the school establishment which had no relation to the violation charged. In fact his challenge to the conviction is not directed mainly to the sufficiency of the People’s proof, but to the validity of the statute as a constitutional enactment for lack of standards and appropriate definition.

In People v. Diaz (4 N Y 2d 469) and People v. Bell (306 N. Y. 110), we dealt with a loitering statute. In Diaz we set aside a conviction had under a city ordinance which provided that no person shall lounge or loiter about any street or street comer because the prohibiting language was too vague, indefinite and uncertain to define a crime, since the ordinance made no distinction between conduct calculated to harm and that which is essentially innocent in the use of a public street.

There is a vast difference between a statute or ordinance dealing with loitering on a public street or street comer as in Diaz (supra), and a statute which prohibits any person who does not come within the named exceptions to loiter in or about any school building or grounds without written permission of the principal, custodian or other person in charge thereof, or in violation of posted rules and regulations governing the use thereof. A school is in a sense public in that it is endowed and operated by the taxpayers’ money, but it is not public in the sense that any member of the public may use it for his own personal purposes, and is justifiably the proper subject for proscribed acts such as loitering. A school building being of such a restricted public nature, the attack upon section 722-b on constitutional grounds is wholly without merit. Read in the light of the nature of a school building, the statute is sufficiently clear and unambiguous to inform the public of the proscribed act. On its face it simply states that any person who loiters (a term which has by long usage acquired a common and accepted meaning) without permission of the specified persons is guilty of disorderly conduct.

Nor is there any merit to defendant’s contention that the statute was not intended to make criminal an otherwise innocent activity. Loitering in school buildings, or on school grounds, is not an innocent activity. It is common knowledge that law enforcement agencies and school authorities are continuously and increasingly harassed by the presence of unauthorized persons invading the precincts of our schools such, for instance, as dope peddlers, sex offenders, idlers and trouble makers in general, and other persons harboring some Illegitimate purpose involving the innocence of immature school children and youth. Then too, there is the ever present threat of fire and disaster from indiscriminate and careless use of cigarettes in and about the school corridors and buildings. The authorities, we know, are not only charged with the duty of providing children with a proper education, but while so doing must be watchful of their moral and physical safety and well-being. It was for these and other reasons that the enactment of section 722-b was sponsored by the law enforcement authorities and parent organizations, leading boards of education and other civic-minded groups. The nature of the activity carried on in a school building incident to the teaching and protection of children compels restriction against persons loitering in and about the building and grounds wherein these activities are carried on. This interpretation does not conflict with or limit our decision in People v. Bell (supra) which dealt with loitering in and about railway property by a person “ who [was] unable to give a satisfactory explanation of his presence ”.

Here the statute makes definite and certain that one does not qualify as an implied invitee or licensee who needs written permission to frequent a school else he is a trespasser and may be punished for loitering. Here the defendant conceded that he did not come within the statutory exceptions nor did he have permission to enter the school premises and this in face of prior warning to keep out.

The judgment appealed from should be affirmed.

Chief Judge Conway (concurring).

I agree with Judge Dye.

I should like to add a word about the reasons stated in the dissenting opinion for the passage of the act in question. I was in Chicago at a Conference of the Chief Justices at the time, within the last two years, when the nearly one hundred children, who had been burned to death in a school fire there, were buried. Anyone who witnessed any part of the tragedy on that day of sorrow would feel that one of the reasons for the adoption of the act was to prevent just such occurrences. Stupid or thoughtless young people can do as much harm to the defenseless as wicked ones.

I have not seen in the record any concession by anyone that the defendant was in the school for any good purpose. He had been warned previously to stay out of the school, in which he did not belong, nevertheless he returned. He was carrying a cigarette, and whether or not, at the moment, it was lighted or unlighted is not too important.

I do not think that the citations of cases involving railroad stations where people are accustomed to go to see their friends off on trains or to meet them is pertinent. Those places are public places—not school buildings crowded with children.

Van Voorhis, J. (concurring).

“Loiter” assumes different meanings according to the circumstances. As this word is construed in Judge Dye’s opinion, I think that it signifies in section 722-b of the Penal Law that every person not the parent or legal guardian of a pupil in regular attendance at a school is forbidden to enter the school building or grounds without written permission from the principal, custodian or other person in charge — except for the purpose of obtaining such permission. Necessarily the teaching and maintenance staffs of the school are excepted. Posted rules or regulations governing the use of the school building or grounds may provide for the admission of other persons on other occasions, and the use of such buildings and grounds is, of course, subject also to the provisions of the Education Law. This is the gist of Judge Dye’s opinion, as I read it, with which I agree. The rigor of section 722-b, thus construed, is a proper exercise of the police power in view of the problem of maintaining order in the schools, nor is the term “ loitering ” defective on account of vagueness in defining the offense if “ loitering ” is construed in this manner.

Fuld, J. (dissenting).

The defendant, a youngster 17 years old, went into a high school to meet two friends who were students there and wound up with a conviction for disorderly conduct on the ground that waiting for his friends constituted loitering in the building in violation of section 722-b of the Penal Law.

That section was designed to exclude from school areas degenerates, narcotics peddlers, vandals and the like. The statute was broadly worded — to punish one who “loiters” about a school building — but it certainly was never designed to render innocent conduct criminal. The word “loitering” is both broad and nebulous, but what it signifies ■— not only by dictionary definition, but in ordinary everyday speech — is staying about or around a place without any purpose, aimlessly and idly, or for some illegal or illicit purpose. (See, e.g., People v. Diaz, 4 N Y 2d 469; People v. Bell, 306 N. Y. 110.)

The defendant was in the school building for a legitimate purpose and he did nothing wrong or improper while there. Placing a cigarette in his mouth on the steps of the building as he was going out, even if unwise, did. not render him a criminal or constitute “loitering.” We should give to the statute a reasonable and sensible construction, by interpreting it in such a way that it will exclude from our schools only those who are disorderly or have no legitimate motive for being in or about a school building. We should not read it to exclude those who are there, at the end of the school day, to meet friends who attend the school—certainly a good and sufficient reason.

The Legislature, by enacting section 722-b, may have desired to facilitate the conviction of those in a school building for some illicit purpose, but surely it could not have been its design to render criminal and punishable the perfectly innocent conduct of the defendant. Had the Legislature intended, as suggested by Judge Dye and Judge Van Voobhis, an all-inclusive statute, a statute designed to prohibit everyone, except a parent or guardian of a pupil, from entering a school building, it would have been a simple matter for the Legislature to have expressly so provided. The term ‘ loiter ’ which is found in the statute indicates a quite different intent.

If, on the other hand, the section is to be construed as the People urge, and as this court is holding, then, it seems to me, it runs afoul of the requirements of constitutional due process. Indeed, as this court wrote of other legislation which also condemned “loitering ” (People v. Diaz, 4 N Y 2d 469, 470, supra), a statute “must be informative on its face * * * and so explicit that ‘ all men subject to its penalties may know what acts it is their duty to avoid ’ (United States v. Brewer, 139 U. S. 278, 288 * * *). While the term ‘ loiter ’ or ‘ loitering ’ has by long usage acquired a common and accepted meaning * * * it does not follow that by itself, and without more, such term is enough to inform a citizen of its criminal implications and, by the same token, leave it open to arbitrary enforcement.”

I would reverse the judgment and dismiss the information.

Judges Desmond, Fboessel and Btjbke concur with Judge Dye; Chief Judge Conway and Judge Van Vooehis concur with Judge Dye, each in a separate memorandum; Judge Fuld dissents in an opinion.

Judgment affirmed.

      . Section 722-b provides that “ Any person not the parent or legal guardian of a pupil in regular attendance at said school who loiters in or about any school building or grounds without written permission from the principal, custodian or other person in charge thereof, or in violation of posted rules or regulations governing the use thereof, shall be guilty of disorderly conduct.”